10 N.H. 120 | Superior Court of New Hampshire | 1839
The trustee who is summoned in this case is a partner of French, and if liable at all is liable only as a member of that firm. He is, however, summoned merely in his individual capacity. But it is well settled in this state that one of two joint debtors cannot be charged as a trustee in a suit where the other debtor is not joined. 1 N. H. Rep. 184, Rix vs. Noyes & Trustee; 5 Ditto 538, Hudson vs. Hunt & Trustee.
Where a debtor holds a joint contract against two or more, and his creditor would avail himself of the benefit of this contract, under process of foreign attachment, he must summon all the parties liable by law to discharge it. 6 Mass. R. 62, Jewett vs. Bacon.
Where, also, an individual is the debtor of a firm, and is summoned as trustee of a portion of said firm only, he cannot be charged. 6 Mass. R. 490, Upham, vs. Naylor & Trustee.
Had the partner been included in the writ, whether service was on him or not the firm would have been holden ; but the trustee would not have been required to disclose till he could have informed his partner of the pendency of the trustee process. If the partner had not paid the claim to the principal debtor, then he could not do it after such notice, except in his own wrong ,* and the trustee might well disclose as to the liability of the firm. Here no claim is made against the firm, and the trustee is in no manner liable.
Trustee discharged.