The opinion of the Court was delivered by
Weston C. J.The policy of the law of foreign attachment is, to render the effects and credits of the principal debt- or, in the hands of the trustee, available for the benefit of the creditor. The law should receive a liberal construction, in furtherance- of this object. With respect to credits, one of the usual tests, to determine the question, whether trustee or not, is, whether the principal has, or has not, a right of action against the supposed trustee. But this test is not in all cases necessarily decisive, as there are exceptions .to its application, of which the counsel for the plaintiff have put some examples.
The alleged trustees in this case are the holders of funds, of which the principal debtor is entitled to a moiety. He has it- not in his power, without -joining the party entitled with him, by any coercive process, to compel payment. The principal reason for the necessity of this joinder usually given is, that otherwise the party indebted might be liable to the cost and inconvenience of two suits upon one contract. Hence if he himself sever the cause of action, by paying one of his joint creditors his proportion, he is liable to the several creditor. So the law, in carrying out its remedial provisions, may sever a contract, so as to subject the debtor to the liability of two suits upon one contract. The death of one of two jointly contracting parties, renders the survivor and the administrator of the deceased party each liable to a several suit. So if the trustee be indebted to the principal in an entire sum, beyond the amount wanted to satisfy the judgment recovered by the attaching creditor, he will remain liable to the action of his prin*45cipal for the residue. The trustee is but a stakeholder; and the law indemnifies him for the expense of the suit, by allowing him to deduct, it, as a charge upon the fund in his hands. Notwithstanding, therefore, if the trustees are charged in this case, an entire liability will thereby be divided into two parts, in the judgment of the court, this objection cannot prevail.
The counsel for the trustees further insist, that they ought to be discharged, because the fund may be wanted for the joint creditors of Munroe and Goodwin, who it is said in the business, from which it accrued, are to be regarded as partners. It is not necessary to decide, whether they stood in this relation or not, as it does not appear that they had any joint creditors or if they had, that they have any occasion to interfere with this attachment. If they would claim and assert any such superior right., it was easy for them to have done so, by suits against both, summoning the same trustees. The court would then have been called upon to determine who had the better title to the fund. But no such question arises in the case, as now presented. The attaching creditor is entitled, if wanted to satisfy his judgment, to one half the debt disclosed.
Trustees charged.