The opinion of the Court was drawn up by
— This suit is against a firm consisting of John Metcalf and one Wetherbee, as principal defendants, and another firm consisting of the same John Metcalf and one Cushman, and one Lee, as trustees. It appears by the disclosure made by Cushman in behalf of the firm of which he is a member, that at the time of the service of the writ upon them, there was a balance in their hands, which was due to the firm of Metcalf & Wetherbee; they claim to be entitled to hold this balance for the purpose of discharging their partnership debts, the affairs of the firm not having been closed, and their liabilities being, as they believe, greater than the amount of
It is a general rule, that partners in their collective capacity are entitled to the same remedies, to be administered in the same way, as individuals have for the assertion of their rights and the redress of their wrongs. There are exceptions to this rule; one is, where the suit is between the firm and one of the partners; or between two firms, in each of which one and the same person is a partner; it is treated as an unjustifiable anomaly, if not an absurdity, that one and the same person should in the same suit at once sustain the twofold character of plaintiff and defendant, to enforce a right and redress a wrong. Story on Partnership, <§> 234. Gow, in his Treatise on Partnership, page 132, says, “ the individuality of the person of the co-partner cannot be severed, no man can contract with himself, nor can he bind himself in the society of one set of persons, to another, in which he is also a partner. Neither the contract nor the negotiable security can be made the foundation of an action at law. It makes no difference, whether the action be brought in the lifetime or after the decease of the common partner, because as no legal contract ever existed, it cannot in any event be rendered available at law.”
The firm of Cushman, Metcalf & Lee, are claimed to be holden on account of their contract with the firm of Metcalf & Wetherbee. The trustee process, is a mode of enforcing that contract by a suit at law. But it is insisted for the plaintiffs, that although the trustees are summoned into Court in a suit at law, yet after they have appeared, the proceedings touching the liability of the trustee are distinct from those between the plaintiffs and the principal defendants, the former being analogous to proceedings in equity. This proposition cannot be maintained. That a person may be holden as trustee, he must be liable to the principal by virtue of some contract, express or implied. Rev. Stat. c. 119, § 4. The process is a mode by which such contract may be enforced for
Exceptions overruled.