Pettes v. Spalding , 21 Vt. 66 ( 1848 )

The opinion of the court was delivered by

Bennett, J.

We are called upon to revise the decision of the county court, in which they held, that the trustee was not chargeable.

The object of this proceeding against the supposed trustee, we learn from the argument, is, to attach a debt due to the principal defendant from a firm, consisting of this trustee and two other individuals, who resided in New York; and it appears, also, that the place of business of this firm was in the state of New York. Rodosson was also located in New York, having the active charge of the business of the firm, but having at the same time a family residing and keeping house at Burlington in this state, whom he occasionally yisited, spending a short time with them,

Several questions arise on this disclosure. 1. Had Rodosson such a residence in this state, at the time of the service of the trustee process, as to render him amenable to it ? 2. If so, was this • such a debt, as could be attached under our trustee process. We do not find it necessary to decide either of these questions. If both of them are against the trustee, yet we think the process is wholly insufficient to attach this partnership debt, if attachable, — and this point is left open.

The writ simply commands the sheriff to summon Christian Rodosson, trustee of Joel Spalding, &c. The other partners are not named, or alluded to, in the process; neither is the credit, that is sought to be attached, in any way described as a debt due from the partnership, to the principal defendant, but as an individual debt from Rodosson. This, process is no notice to Rodosson, that a credit due from the firm was attached ; and we think, it is insufficient to bind the funds in the hands of the Company belonging to Spalding. In the case of Parker v. Danforth, 16 Mass. 299, to which we have been referred, the copartners out of the state were named in the process, as trustees, as well as those in the state; and though the process was not served upon those out of the state, yet those within the state might well take notice, that it was the object of the proceeding to 'bind the partnership funds. In the case before us no such object appears; and we think, Rodosson had the right to settle and pay the partnership debt to Spalding, notwithstanding the trustee process.

The judgment of the county court is affirmed, with costs as to the trustee, and affirmed proforma against the principal debtor without costs.