Patrick M'Caffrey versus Micah G. Moore and Trustee, 18 Pick. 492

Shaw C. J. delivered the opinion of the Court. The question is, whether the respondent, Farwell, is liable to be charged on his answers as the trustee of the defendant, Moore. From these answers it appears, that the respondent and another were indebted to Moore and another person, jointly, upon a building contract. The relation between Moore and Shannon, the other person, is more fully set forth in the answer of Shannon, in another suit, in which he was summoned as the trustee of Moore, and which answer, by consent of the parties in the present case, is to be taken as the respondent’s answer in this case.

In that answer it appears, that Shannon claims tie whole amount of the debt due from Farwell and Temple, as being due to himself, as a copartner, upon an adjustment of accounts between himself and Moore. It also appears, that before this suit was commenced, and the respondent served with process, a suit was commenced by Moore and Shannon against the respondent and Temple jointly, which had been referred to referees under the usual rule ; that their award was to be final and judgment entered upon it; and that the referees had made their award, before the trustee process was served.

With the limited means, which the trustee process affords ol inquiry into facts, in order to understand the precise relation of two or more, claiming to be copartners or otherwise jointly interested in the debt attached, where it is so attached to answer the separate debt of one of them, it is often not easy or perhaps possible to come to a correct or satisfactory conclusion.

But so far as the facts are disclosed in the present case, it would be difficult to say that there was any balance due to the principal defendant, capable of being attached as his several debt, whether there was a general partnership between him and Shannon or not, if upon their joint dealings, as far as they went, there would be no balance due to the principal defendant, upon settlement and adjustment of an account; and this is distinctly stated in the answer of the partner, Shannon.

But the Court have not thought it necessary to pursue this inquiry, or to give any opinion upon this part of the case, because upon the other ground, the Court are all of opinion, that the trustee must be discharged. It has been held as a reasonable construction of the statute giving this process, the statute itself having made no express provision on the subject, that where a creditor has instituted legal proceedings for the recovery of his debt, and has made such progress therein, that the attachment of the debt cannot be pleaded in bar of the writ, the attachment is too late, and cannot hold.

It results from that clause of the statute which provides that such attachment may be pleaded in bar. Kidd v. Shepherd, 4 Mass. R. 239. When parties have referred their cause under a rule, which makes that reference conclusive, and enables the plaintiff to take judgment upon the award when returned, the defendant has no day in court to plead the attachment in bar, and therefore the attachment cannot hold. Howell v. Freeman, 3 Mass. R. 121. This case falls within the same principle, and it is decisive. Trustee discharged.