14 N.H. 129 | Superior Court of New Hampshire | 1843
It is the practice in suits where the real or personal property of the defendant is attached by the ordinary process of attachment, to permit creditors who have subsequently attached the same property, to appear and contest the validity of the first attachment. Buckman vs. Buckman
The same reason exists for permitting subsequent attaching creditors to appear and contest the liability of a person who has previously been summoned as the trustee of the principal debtor. The service of the process creates an attachment of the property of the debtor in the possession of the trustee. If this attachment be dissolved by the discharge of the trustee, subsequent creditors who have summoned him may cause the property to be applied in - satisfaction of their debts. The motion of Mr. Collins, therefore, prevails.
The question now arises upon the second motion, that the trustee be discharged because he is one of the plaintiffs. This motion must, also, be granted. It has been held that where the same person is a member of two different firms, no action at law can be maintained by one firm against the other. Portland Bank vs. Hyde, 2 Fairfield 196. And this decision accords with the general current of the authorities, some of which are referred to in that case. Mainwaring vs. Newman, 2 B. & P. 120; Moffatt vs. Van Mullengen, 2 Chitty. 539; Bosanquet vs. Wray, 2 Marsh 319; Harvey vs. Kay, 9 B. & C. 356; 1 Ch. Pl. (7th Am. ed.) 44.
One of the results of rendering judgment against the trustee in this case would be, that if he were sued upon it, he, as defendant, might contest the suit with himself as plaintiff. And if the judgment were for specific articles under the statute, he must deliver the articles in question to himself, as creditor. But his interests are identified with those of the other plaintiffs, and there is, by the common law, no mode of severing them, so as to avoid the absurdity of his prosecuting an action against himself.
Trustee discharged.
