Wentworth v. Whittemore

1 Mass. 351

Opinion

Thacher, J.,

said he was of opinion, that there was an existing debt in this case; and therefore nothing which could be attached by this process. At the time of the service of the writ, the person summoned as trustee was not the debtor of Whittemore, the sailor, and at that time, it was altogether contingent whether he ever would be ; and the statute never was intended to make a barely possible future claim liable to attachment.

Sewall, J.,

said he was of a different opinion ; that he thought here was an existing debt, though subject to a contingency, as to the time of payment. And he compared it to the case of a bottomry-bond, which, as to the ultimate liability of the obligor, depended on the same contingency — -the future arrival of the vessel; yet it had always been considered as giving a present interest- to the obligor, and, as such, might be insured. It is true, that the wages of a sailor cannot be insured; but this has been so declared from principles of policy, and in order that the sailors may be encouraged to take the best possible care of the vessel. He also said that he could not distinguish this case from one which had been decided in this Court; m which an executor, who was summoned as the trustee of a legatee, to whom a legacy was given, payable at the end of one year from the.decease of*the testator: although the executor, in his answer to the usual interrogatory, statéd that he was not certain there would be any thing in his hands for the payment of legacies, after he should have paid the debts of the testator, yet the action was sustained, and the executor adjudged to be a trustee within the statute,

(a)

Sedgwick, J.

said, that had not his brother (Sewall, J.) ex pressed a different opinion, he should have had no doubt, that this was not a debt. Every debt must be either solvendum in prcesenti, or solvendum in futuro — mast be certainly, and in all events, payable ; but whenever it is uncertain whether any thing will ever be demandable by virtue of the contract, it cannot be called a debt. The bankrupt laws are altogether on this principle. In the statute, the word credit is used: credits are made attachable. Credit and debt are correlatives: if there be no debt, there can be no credit. And the present case is neither within the words nor meaning of the statute.

Kinsman for the plaintiff. Parker for the trustee.

Trustee discharged. (1)

It was decided that in such case, the executor could not be held as trustee, Barnes vs. Treat & Tr. vol. vii. 271; and that an administrator cannot be the trustee of his intestate, vid. Brooks & Cook vs. Barret & Tr., post, vol. viii. 246.

Davis vs. Ham & Al , vol. iii. 33 acc. Frothingham vs. Haley, ib. 68. Rent accruing under an indenture of lease, but which has not fallen due, cannot be attached under this process. Wood vs. Partridge, vol. xi. 488.