13 Minn. 205 | Minn. | 1868
By the Court The first question presented in this case is whether the interest of one partner in a debt,
The attachment proceedings depend altogether upon statutory provisions, and under our statute are ancillary to the action. 8ec. 133, of ch. 66, Gen. Stat., p. 467, is as follows:
•“ All goods and chattels, real, personal and mixed, including all rights and shares in the stock of any corporation, all money, bills, notes, book-accounts, debts, credits, and all other, evidences of indebtedness belonging to the defendant, are subject to attachment.” The language of this section certainly embraces both tangible personal property, and debts, and other choses in action, and places them on the same footing, as to their attachable character. I regard it as well settled that the interest of one member of a partnership in the tangible property of the firm, can be levied upon to satisfy his individual liability, but such levy is subject to all the partnership accounts. 1 Pars. on Contr., 5th ed, 204-5, and authorities cited in note b; Ib., 210, note j; Story’s Eq. Jur., sec. 677; Place vs. Sweetzer and others, 16 Ohio R., 142; Sutcliffe vs. Dorhman, 18 Ohio P., 181; Brewster, et al., vs. Hammett, et al., 4 Conn., 540 ; Witter vs. Richards, 10 Ib., 37.
Our statute extends the remedy to the proceedings by attachment, and makes debts and other choses in action, as well as tangible property, subject to the process of the attaching creditor. I am unable to see anything in the nature of a debt, or chose in action, belonging to a partnership, which, so far as the question under consideration is concerned, should distinguish it from tangible personal property of the firm. The objection urged against permitting a ’creditor to levy upon the interest of one partner in the partnership property to satisfy the'individual liability of such member of the firm, is that the partners have no separate interest in the property until all the partnership debts are paid, and that a levy cannot be made upon that which does not exist.
The facts set up by McQuillan do not constitute a defense in this action.
"Whether McQuillan has any remedy, I do not deem, it necessary at this time to consider.
I think the order appealed from should be affirmed.
Without further provisions of statute, I think that the attachment setup in the defendant’s answer is wholly ineffectual. I therefore agree to the disposition made of the case by Justice McMillan.