
    William Kidder and Another versus Isaac Packard and Another.
    A partner in a commercial house, established in a foreign country, residing here, cannot be held as the trustee of a creditor of the house, on account of moneys advanced to the house at the place of their domicil.
    This was a scire facias, brought against the defendants, Packard Gowen, to have execution against them as * the trustees of one Benjamin Butters. The original writ was served upon Packard, who is a merchant living in Boston; but was not served upon Gowen, who is a merchant residing in the Havanna. Packard disclosed, upon his examination, that he and Gowen are general partners in trade, having a house established at the Haranna, under the firm of Packard fy Gowen ; and that one hundred and fortj johannes were placed in the hands of the said Gowen, acting for the said house at the Havanna, by the said Butters, who took an accountable receipt therefor in the name of Packard 8f Gowen; and it appeared, by a subsequent disclosure of Packard, that the said money remained in the hands of Gowen as aforesaid, until long after the original service upon Packard as trustee ; but that it was placed, in the books of the house, to the credit of the owners of a vessel called the Sylvia, of which vessel Butters had been master and part-owner.
    
      Jlylwin, for the plaintiffs.
    
      Selfridge, for the defendants.
   Parker, C. J.

We are not called upon to decide whethei, under the circumstances disclosed by Packard, the debt of Packard fy Gowen was due to Butters, or to the owners of the Sylvia, he acting as their agent in the deposit; for no objection to the liability of the supposed trustees has been made by their counsel on that ground.

But the general question has been urged upon us, whether, admitting the money in the hands of the firm at the Havanna to have been the sole property of Butters, Packard can be charged as his trustee under those circumstances ? And we are satisfied that he cannot. The debt from the house to Butters was contracted in the Havanna, and was there to be accounted for according to the terms of the receipt; and it would be attended with manifest inconvenience to commercial men, if, when they have received property on credit in one country, they could be held accountable to a stranger in another; when the terms, * upon which-they received it, might be satisfied abroad, without a possibility of showing it here.

Besides, their creditor abroad may have the means of compelling payment in the country where the contract was made ; and it is altogether unknown to us, whether a judgment of this Court, founded on this process, would he respected by a foreign tribunal, who might have perfect evidence of the existence of the debt, without any satisfactory proof that it had ever been discharged.

There is also a difficulty in considering one partner of a house as the trustee, when the other partner abroad may, without his knowledge, have discharged the debt, or come under some liability which would give the house an equitable lien upon it. Debtors, who are copartners here, must all be summoned and made parties to the suit. It is true, this cannot be done where some of them have become domiciled abroad. But this difficulty will suggest doubts, whether a house so circumstanced can be lawfully made the subjects of this process. At any rate, when the debt is contracted abroad, with a view to the agency of the foreign partner, or an expectation that it will be 01 him, we think the at home cannot be charged as trustee.

Trustees discharged.  