Peters v. Rogers

19 F. Cas. 368, 5 Mason C.C. 555

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1830
• Status: Published

Opinion

STORY, Circuit Justice.

In the present case, the plaintiffs are described in the writ as of Boston, and citizens of Massachusetts, and the principal defendant as of Bangor, in Maine, and a citizen of Maine, and the trustee, as “of said Boston, mariner,” without any description of citizenship whatsoever. The trustee in his disclosure avers, that at the time of the service of the plaintiff’s writ upon him, his family resided at Orrington, in the state of Maine, and that said Orrington was the residence of this respondent when at home; that for many years before the service of said writ and since that period, this respondent has been engaged in the coasting trade between the state of Maine and Boston, purchasing, transporting, and selling cargoes, and that the course of business led him to spend about the same period of time in each place. The answer then proceeds farther to state, that the principal defendant, Rogers, had conveyed to him five eighths of a certain schooner, the Chancellor, as security to indemnify him against a promissory note, which he had signed as surety for Rogers; that he (the trustee) was part owner of the schooner, and had employed her in the business aforesaid ever since the transfer, and from Rogers’s share of the profits had in part paid the note; and that the vessel is now in Boston, and the five eighths of Rogters are worth more than the debt due on the note, &c. The service was made upon both principal and trustee in this district.

The question under these circumstances is, whether the party can be bolden as trustee under the trustee attachment act of 1794, (chapter 65). In the construction of local statutes the courts' of the United States have always been in the habit of respecting and following the decisions of the local courts; and, it has been already intimated in this court, that we are not disposed to enlarge by implication, in cases not controlled by authority, the influence of such a summary remedy. Picquet v. Swan [Case No. 11,134]. It is well known, that by the provisions of this process no person can be summoned as trustee out of the county, in which he lives, if he be the sole trustee; and if he is so summoned, he is entitled to be discharged upon the matter appearing by plea, or otherwise, to' the court See Wilcox v. Mills, 4 Mass. 218; Davis v. Marston, 5 Mass. 199; Jacobs v. Mellen, 14 Mass. 132. In Tingley v. Bateman, 10 Mass. 343, it was held, that where the plaintiff and defendant and trustee all lived out of the state, the process was not maintainable, although service was made upon the trustee within the state. The court on that occasion said, “there is a plain implication in another provision of the statute, that a person, liable as trustee, must be one, who at the time of the service of the writ, or within three years next preceding, has, or has had, his residence and home within the state;” and again, “a resident and inhabitant of another state is not in legal contemplation within the process of uns court, to be summoned as a trustee.” In Ray v. Underwood, 3 Pick. 302, it was held, in conformity with a former decision, that a person, who has never been an inhabitant or resident within any town of the state, but only came within it occasionally in the day time to look after some of his property, he living in an adjoining town of a neighbouring state, was not liable to be summoned as a trustee. These authorities appear to me directly in poiut, and close the question now before this court. They are founded in good sense and convenience. Upon any other construction, if an inhabitant of another state should be sued here as trustee for personal property locally situate in the state, to which he belonged, he could be obliged, in order to discharge himself, to bring the property at his own risk into the state, that it might be taken in execution, whatever might be its bulk- or character, a ship or a cargo of lumber. This would be an intolerable grievance, and has never yet been claimed as a rightful exercise of jurisdiction on the part of this commonwealth. It is clear, upon the disclosure of the trustee, that he is a citizen of Maine, and has his family and home there; and he has, in a legal sense, no residence or inhabi-tancy in Massachusetts. Without stopping, therefore, to consider, whether, as a citizen of Maine, he is liable to be sued in this court as trustee by the plaintiffs, who are citizens of the same state, it is the opinion of the court, that by the local law he is entitled to be discharged, and he is accordingly discharged.