Clark v. Wilson

15 N.H. 150

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Gilchrist, J.

The process in this case, although in its form single, is to be considered as a process against the trustees jointly, because they are declared against as jointly holding the property of the principal debtor. Ingraham vs. Olcock, [14 N. H. Rep. 243.]

By the Rev. St. ch. 208, § 3, it is provided that trustee writs shall be served upon the trustee and the principal defendant in the same manner as writs of summons. By ch. 183, § 2, writs of summons are to be served by reading them to the defendant, or by leaving a copy at his place of abode. Where the trustee lives out of the State, the statute provides no mode of service. We have held that whore a trustee suit is against a firm, but a copartner is without the State, service on one partner is sufficient to bind the firm. Atkins vs. Prescott, 10 N. H. Rep. 120. But as in the present case all the trustees live out of the State, the question is, whether an acknowledgment of service by one in the name of the firm will bind his partners. It was by accident merely, or by the goodwill of Mr. Jenness, that any service was made upon the trustees. It is said, in Tingley vs. Bateman, 10 Mass. 346, that a resident and inhabitant of another State is not, in legal contemplation, within the process of the court to be summoned as a trustee, any more than the goods of a debtor which may be come at to be attached, are liable to be taken by attachment or execution while remaining deposited within the bounds of a neighboring State. The property in the hands of the trustee is to be considered as local, and as remaining at the residence of the trustee. In Ray vs. Underwood, 3 Pick. 302, the defendant lived in Massachusetts and the trustee lived in Rhode Island, and came into Massachusetts only occasionally, and it was held that he was not liable to the process. It is not, however, necessary to pursue the inquiry in this direction; for whatever might have been the effect of a separate acknowledgment of service by the individuals composing the firm, we think this service was invalid. We cannot say that one member of a firm, all of whom live out of the State, has any authority to acknowledge service of a writ in the State. The matter is entirely unconnected with the partnership business. Foot vs. Sabin, 19 Johhs. 154 ; Wilson vs. Williams, 14 Wend. 146. Such a service would not be sufficient if the trustees were the principal defendants, and it is equally invalid against them in them present capacity.

Trustees discharged.