
    Samuel S. Willard versus Henry Sheafe and Trustee.
    A contingent credit is not subject to a foreign attachment
    Benjamin Smith, who was summoned in this action, September 8th, 1807, as the trustee of the defendant, Sheafe, disclosed, on his examination, the following facts, viz.: That he sailed in the month of February, 1807, in the schooner Boston, as master, with a cargo of sundry articles, belonging to Zadoc French, Henry Sheafe, and himself, one third each, to Martinique, where he arrived some time in March following; where he disposed of the cargo, with the exception of certain articles, which he specifies, and which he left in the hands of certain merchants in Port Royal, and took their receipts for the same as received by them of him, to sell on his account and risk, the proceeds to be subject to this order; that he then returned to Boston with a cargo, the proceeds of that part of his outward cargo, which he had disposed of as aforesaid, and delivered the same to Z. French, as ship’s husband or agent, who sold it, and accounted to him for his third part thereof; that he again sailed in the same schooner for Martinique, in August, 1807, arrived there in September, and, in October, received payment in sugar for the articles he had left in the preceding voyage, as before stated; that, on his return to Boston, in December of the same year, he delivered the said sugar to said French, who still acted as agent; that Sheafe never gave him directions to deliver the sugar to any person; * that the same was sold by French for [ * 236 ] five hundred sixty-four dollars and seventy-five cents; that he, Smith, also paid over to French a small balance in cash, due from him to Sheafe.
    
    The question upon these facts, viz., whether Smith was the trustee, of Sheafe on the 8th of September, 1807, the date of the service of the process upon him, was briefly argued by Channing for the plaintiff, and Gray for the trustee, and the opinion of the Court afterwards delivered to the following effect by
   Parsons, C. J.

Smith, as agent for the owners of the cargo of the schooner Boston, in which Sheafe, French, and himself, were equally interested, had left a part of the cargo in the hands of certain merchants in Martinique, to be sold on the joint account of the concerned. While these effects were in the hands of the merchants, Smith was not a debtor, or accountable to Sheafe for any pait of the same, and consequently had no credits or effects of Shecfe in his hands. This was the state of that part of the cargo, when the writ was served on Smith; for he did not receive from those merchants any proceeds of the sales until October, 1807, which was a month after he had been sued as a trustee.

It has been several times determined that a contingent credit is not attachable by virtue of the statute of 1794, c. 65. The debt must be absolute, although the time of payment may be future. This construction, in some measure, accords with the custom of Bondon respecting foreign attachments. For the foreign attachment of a credit is by a suit against the garnishee, the holder of it, commenced by the creditor in the name of his debtor. The debt attached must therefore be absolute, and even payable at the time of the foreign attachment. But the form of our process, as well as the provisions of the statute, admit of the attachment of a debt ab-sol rtely due, but payable in futuro.

Smith must be discharged as trustee.  