
    Aaron Davis and Al. versus Samuel Ham and Al., and Ebenezer Francis and Others, Trustees.
    Shippers of a cargo under a special contract that the owners of the ship shall receive a share of the profits arising on the cargo, cannot be held as the trustees of the ship-owners, before the termination of the voyage.
    The principal defendants were owners of a ship called the Governor Gilman, on board which the persons summoned as trustees, in December, 1802, severally shipped a quantity of specie, under an agreement with the owners of the ship, that it should be transported to Calcutta, and there be invested by an agent of the shippers, one half in sugars and the other half in cotton goods, which were to be brought back to Boston, in the ship, and there delivered to the respective shippers of the specie. The owners were to receive one third of the net profits arising on the sugars, and one fourth of the net profits arising on the cotton goods; which profits were to be ascertained by a public sale of the respective articles, and were to be in full for the freight of the specie out, and of the sugars and goods home.
    While the ship was on the voyage, viz., on the 20th of March, 1804, the owners, falling into embarrassments, assigned to certain of their creditors, in full discharge of their demands, amongst other property, this ship, her tackle, apparel, and furniture, with all such part of the cargo on board as was the property of the said Mam Al., with all the freight due, or that might afterwards be due on the arrival of the said ship at her port of discharge in the United States, for goods and merchandise. shipped on board the same, and all the profits, benefits, and advantage that might, or should in any way accrue to the said Mam &f Al., for the transportation of the said goods, or for merchandising the outward-bound * cargo, and purchasing the return cargo in [ * 34 ] Calcutta, agreeably to the contract entered into with the several shippers of goods on board said ship.
    The supposed trustees were summoned in this suit on the 10th of March, 1804. The assignees gave them notice of the said assignment, and on the 18th of May, 1804, the ship arrived at Boston, when the said assignees took possession of her, and discharged her cargo, delivering the same to the respective shippers, who afterwards sold their goods, to ascertain the net profits aforementioned.
    The said assignees were, by a rule of Court made at the March erm, admitted to become parties in this action; and if, upon the above facts, the Court should be of opinion that the several persons named trustees as aforesaid, are liable in this suit as trustees of said Ham, &f Al., then it was agreed that they be adjudged trustees, and the sum due from each be ascertained by an account to be exhibited under oath ; but if the Court should be of opinion that they are not trustees of said Ham fy AL, but that the said assignees are by law entitled to said net profits, then the said supposed trustees to be discharged.
    
      The counsel for the plaintiffs contended that the trustees were liable, this being not a contingent demand, except as to its amount, which has never been held sufficient to discharge a trustee. The rate of exchange between this and India, which is uniformly from 10 to 30 per cent., shows demonstratively that a profit would arise upon this shipment.
    The statute furnishing this process is a remedial one, and as such ought to receive a liberal and enlarged construction, promotive of substantial justice. The attempt here made is to enable insolvent debtors to defeat their creditors, by conveying their effects out of the reach of this process. This Court has a judicial discretion in construing statutes, which it will exercise, so as, if possible, to effectuate the intentions of the legislature. In this intention they will consider the general state of our jurisprudence, and extend the construction, if need be, so as to give a remedy where the statute intended one, and where, otherwise, the party will be without remedy.
    [ * 35 ] * For the trustees, it was said that it depended altogether on the contingency of the ship’s safe arrival, whether any thing was to be received by the defendants. Except the case of a present debt payable at a future day, the principle is universal, that no foreign attachment lies, unless at the time the principal has a right of action against the garnishee or trustee. The case of Wentworth vs. Whittemore &f Trustee 
       settles this question. The case is not only within the decision in that action, but the judge, who there differed from the 'other members of the Court, will find that this case does not come within the principle stated by him.
    Underwriters attached as trustees prior to a loss happening, have never been held; though the contract was made before the attach ment, the event on which they were liable did not happen unti. afterwards. This point applies perfectly to the case at bar. By the terms of the agreement in this case, the ship had earned nothing at the time of the attachment. If the goods had been damaged on the passage, or had arrived at a bad market, no profits at all might have arisen ; in which case nothing even at law would have been due from the shippers.
    As to the intimation that this was an attempt to defeat creditors, it was answered, that the real parties in opposition here were both creditors who are equally meritorious, and have used equal diligence to recover their demands. The only point in question was, to which of these two the trustees should be held answerable.
    
      For the plaintiffs, in reply. The object of the legislature in the statute of foreign attachments was to enable creditors to control and avail themselves of the whole funds of their debtors. Negotiable securities are alone excepted. “Credits” were intended to include every right or interest not subject to attachment by our common process.
    In the case before the Court, a credit was given to these persons for the whole amount of the freight of their adventures, and a debt grew at the moment the credit was given, defeasible indeed by circumstances which might have occurred, but which not having occurred, the debt has become absolute and *un- [ *36 ] conditiona. If defeasible debts should be adjudged not to be within the reach of this process, debtors will be able to screen all their effects from their creditors, by subjecting them to a contingency.
    As to the case put of an attachment upon underwriters, it is not like the present case. But in that case, if a loss has happened at the time of the attachment made, but no proof of it until afterwards, the trustee is held. The case at bar is much nearer to a debt on bottomry, which is not to be paid unless the ship on which the money was lent arrives. Yet a debtor on bottomry is liable to a foreign attachment.
    The persons opposed to the plaintiff’s recovering in this action claim under an assignment from the defendants, and they contend that they can hold a chose in action by assignment, which is against the policy of law, and yet that it cannot be attached by a process expressly provided by the law for the purpose. The law gives the plaintiffs their claim, and the act of a party is set up to deprive them of it.
    
      
       1 Mass. Rep. 471
    
   The Court took time to consider of this case, and now their opinion was delivered by

Parker, J.

The only question properly submitted to the Court in the state of facts agreed on by the parties in this case is, whether the persons summoned as trustees can be legally charged as such upon those facts. The other question, upon which a decision seems to be wished, viz., whether the interest of the debtors in the profits of the voyage legally passed to the assignees, need not in this action be determined.

Amory, Dexter, and Otis, for the plaintiffs.

C. Jackson, for the trustees.

To make the persons summoned trustees within the meaning of our statute, it must appear that they had “ goods, effects, or credits ” of the principal in their hands, deposited there by him before or at the time of the service of the writ upon them. The debt should be an absolute, not a contingent one.

The facts show only that in the event of a safe arrival of the ship, and a successful voyage, upon which there would be profits, the persons summoned would be debtors to Ham &f AL, for their portion as ship owners of said profits, according to the contract made between them. If the ship should not arrive, or if, on the making up of the voyage, there should be no profits, they [ * 37 ] would owe the principals nothing. Now, at * the time of the service of this writ, the ship had not completed her voyage: she might have foundered, or she might have brought the goods to a bad market, so that there would have been no profits. What was this at that time, if any debt at all, but a contingent one? It was not debitum in prcesenti, solvendum in futuro, which would, from analogy to the bankrupt laws, be within the statute: for it rested in uncertainty whether there would be any debt at all. This is precisely within the principle decided in Cumberland, in the case of Wentworth vs. Whittemore & Trustee.

We are of opinion that there was no debt at the time of the service of this writ, and therefore that the trustees must be discharged . 
      
      
        [Frothingham & Al. vs. Haley & Al. & Trustees, post, 68.—Willard vs. Sheafe, 4 Mass. 235.—Wood vs. Partridge, 11 Mass. 488.—Thorndike vs. De Wolf & Trustee, 6 Pick. 120.—Ed.]
     