Willard v. Sheafe

4 Mass. 235

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1808
• Status: Published

Opinion

Parsons, C. J.

Smith, as agent for the owners of the cargo of the schooner Boston, in which Sheafe, French, and himself, were equally interested, had left a part of the cargo in the hands of certain merchants in Martinique, to be sold on the joint account of the concerned. While these effects were in the hands of the merchants, Smith was not a debtor, or accountable to Sheafe for any pait of the same, and consequently had no credits or effects of Shecfe in his hands. This was the state of that part of the cargo, when the writ was served on Smith; for he did not receive from those merchants any proceeds of the sales until October, 1807, which was a month after he had been sued as a trustee.

It has been several times determined that a contingent credit is not attachable by virtue of the statute of 1794, c. 65. The debt must be absolute, although the time of payment may be future. This construction, in some measure, accords with the custom of Bondon respecting foreign attachments. For the foreign attachment of a credit is by a suit against the garnishee, the holder of it, commenced by the creditor in the name of his debtor. The debt attached must therefore be absolute, and even payable at the time of the foreign attachment. But the form of our process, as well as the provisions of the statute, admit of the attachment of a debt ab-sol rtely due, but payable in futuro.

Smith must be discharged as trustee.