Levi Hawes et al. versus The Inhabitants of Waltham, 18 Pick. 451

IlShaw C. J. delivered the opinion of the Court. The two plaintiffs, Hawes and Wood, performed certain work and labor for the defendants, by means of which the town became indebted to the two jointly. Before payment, suits were brought by two creditors of Wood alone, in each of which the town was summoned as trustee, since the statute, providing that corporations may be summoned as trustees. In each of those suits the town was charged, and a portion of the debt du.e to the plaintiffs jointly, was thus adjudged liable to be appropriated by process of law, to the payment of the several debt of one of them.

This, we think, was erroneous. It seems now settled by authorities, that a joint debt cannot thus be severed and appropriated, in whole or in part, to discharge the several debt of one. Fisk v. Herrick, 6 Mass. R. 271; Lyndon v. Gorham, 1 Gallison, 367.

I am aware that it was suggested in some of the earlier cases, that it would be competent in such case to hold by attachment, any balance which would appear to be due to the defendant, upon an adjustment of the partnership accounts, and a balance struck; and that for the purpose of obtaining evidence of the state of the accounts, it would be proper to make one of the other partners a trustee, upon whose disclosure the facts might appear.

There is no decided case, in which such a course has been adopted under a judicial sanction ; and it is certainly doubtful, whether such a course could be adopted, consistently with the principles of the trustee process.

Without insisting on the practical difficulties, of obtaining such a settlement of a general partnership account, in case of every attachment, and the difficulty of requiring a trustee, who truly answers that he has no effects, to set forth and disclose facts relating merely to the liability of others, a strong objection is, that it assumes the right to use the answer of one trustee, to charge another, and in matters in which they may have adverse interests ; whereas, the fundamental principle of the old trustee process was, that the trustee must be charged, if at all, upon the facts disclosed in his own answer.

Hawes v. Langton, 8 Pick. 67. But it is not necessary to settle this question in the present case, because here, it appears, by the answers of the town that they were indebted to the two jointly, without any thing further appearing. In such a case, the Court are of opinion that they could not be charged, in a suit against one only. Then the point is, whether this question can be considered and decided in this suit, and we think it can.

We are of opinion, that as the plaintiffs were strangers to that suit, the judgment, as against them, is merely void, and therefore they must be allowed to question it collaterally ; otherwise they could not avoid it in any form. But if the defendants are now without remedy in this case, it must be, because by their own mistake of then rights, or by loches they have failed to avoid it by an appeal.

If, however, they have not already paid over the money, they may probably have an opportunity on the scire facias to make a defence by force of the Revised Statutes, c. 109, §41 Defendants defaulted and judgment for the plaintiffs.