Tobey v. McFarlin

115 Mass. 98, 1874 Mass. LEXIS 158

• Court: Massachusetts Supreme Judicial Court
• Decided: April 9, 1874
• Status: Published

Opinion

Morton, J.

The question whether the plaintiff can in any aspect of the proofs maintain his bill, is not now before us. The only question presented is whether the order overruling the motion to amend was correct.

The object of the statute is to enable a creditor by a bill in equity to reach and apply to the payment of his debt any property of his debtor, which cannot be attached or taken on execution in a suit at law. But it does not enable a creditor of one partner in a firm to reach and apply the property of the firm or debts due to the firm. The property and debts of the firm are first to be applied to the payment of the creditors of the firm. It has therefore been held that a creditor of one partner cannot attach by trustee process a debt due to the firm. Hawes v. Waltham, 18 Pick. 451. Foot v. Hunkins, 14 Allen, 15.

The only property or interest of a partner which can be applied to the payment of his private debts is the balance due him upon the liquidation of the partnership debts, and the adjustment of the accounts of the partners. The plaintiff therefore in this case would not be entitled to a decree requiring the insurance companies named as the debtors of the firm to pay to him the amounts which they owe the firm. In other words he would not be entitled to any relief against them. Their whole duty is to pay their debts to the firm. They have no interest in the subject of this suit, and would not be affected by any decree which the plaintiff could obtain. They are therefore not proper parties to the suit. Order refusing amendment affirmed.