128 Mass. 235 | Mass. | 1880
The first service upon the trustee of a writ in which Alderman, but no partner of his, was then a principal defendant, did not indeed create a valid attachment of the debt due from the trustee to the partnership of J. F. Alderman & Company. Hawes v. Waltham, 18 Pick. 451. Hoyt v. Robinson, 10 Gray, 371. Bulfinch v. Winchenbach, 3 Allen, 161. But, as soon as the writ was amended by joining Bristol as a defendant, the trustee still continuing to hold the fund, then, all the necessary parties being before the court, no rights of other persons having intervened, and it being conceded that the two defendants, Alderman and Bristol, composed the firm of J. F. Alderman & Company, and that the fund belongs to them, the previous attachment became valid, and the trustee was at once chargeable upon its original answer, independently of the subsequent attachment on a special precept issued under the St. of 1876, c. 167. Gen. Sts. c. 129, § 41. West v. Platt, 116 Mass. 308. Terry v. Sisson, 125 Mass. 560. Wright v. Herrick, 125 Mass. 154.
When this case was last before us this point was left undecided, because the attachment on the special precept was of itself sufficient to hold the fund, in the absence of any evidence of an assignment in bankruptcy. Sullivan v. Langley, 124 Mass. 264. The proceedings in bankruptcy having been commenced more than four months after the amendment by virtue of which the first attachment became valid, the assignment now proved clearly does not discharge the first attachment.
In the decision made by this court in 1876, mentioned in the bill of exceptions, (but not published in the reports, because it determined no question of law argued by counsel or which seemed to be of any importance as a precedent,) a judgment charging the trustee was set aside, and the case ordered to stand for further proceedings in the Superior Court, because the record then brought up contained nothing but the trustee’s answer, which did not disclose the facts, now conceded, that Alderman and Bristol composed the firm of J. F. Alderman & Company,
The result is, that the Superior Court, upon the case as now presented, erred in refusing to rule that the original attachment of the fund in the trustee’s hands was valid, and in ruling that the fund passed to the claimant by the assignment in bankruptcy, and therefore discharging the trustee. Exceptions sustained.
