16 Johns. 102 | N.Y. Sup. Ct. | 1819
Where an execution is issued for the separate debt of one partner, it has been ihe constant practice to take the share which such partner has in the partnership property;
We shall, therefore, order the goods, books, &c.' to be restored, but without costs to either party.
The following rule was entered: “ Ordered, that the sheriff of the county of Ontario do restore to William Soulden, er to such person as he shall appoint to receive the same, the goods, books, and moneys, taken by the said sheriff, under the first mentioned attachment, and the other goods or property of the said Soulden Smith, as partners, which he may. have so taken : And that the sheriff of the county of Oneida do, also, restore to the said William Soulden, or to such person as he shall appoint to receive them, the books of account, and papers, taken by the said sheriff, as aforesaid, under the second attachment; and that, as to the goods taken on the said execution, and claimed, also, by the said sheriff, by virtue of the said attachment, that he do henceforth surcease all proceedings, or claim to the said goods, under or by virtue of the said warrant of attachment.”
Vide Backhurst v. Clinkard, (1 Show. 169.) Heydon v. Heydon, (1 Satk. 392.) Anon. 1 Comyn’s Rep. 277. Holt, 302. 643. Pope V. Harman, (Comb. 217.) Tissard v. Warcup, (2 Mod. 279, 280. 12 Mod. 446.) Jacky v. Butler, (Ld. Raym. 871.)
Vide, also, Eddie v. Davidson, (Doug. 650, 651.) Smith v. Stokes, (1 East,. 367.) Wilson v. Gibbs & Conine, (2 Johns. Rep. 282.) Taylor v. Fields, (4 Vesey, 396.) Chapman v. Koops, (3 Bos. & Pull. 289.) Parker v. Pistor, (3 Bos. & Pull. 288.)
There appears to have been some difficulty as to the manner in which ■ the separate creditor of one partner was to take his execution against the share of such partner, in the joint property of the firm; and the Courts of law and equity seem not to have clearly understood each other on the subject. According to the old cases, at law, the separate creditor took the whole of the joint property, and sold an undivided moiety of it, and applied the funds to the payment of his debt, without giving himself any concern about the rights of the other partner, or previously ascertaining what was the interest or share of each. Since the case of Fox v. Hanbury, the Courts of law have professed to follow the principles of the Courts of equity. (Croft v. Pyke, 3 P. Wins, 182. Ex parte Ruff, 6 Fes. 126, 127. Ex parte Williams, 11 Ves. 5. West v. Skip, 1 Ves. sen. 239. 242.) In Taylor v. Fields, (4 Ves. 369.)
In Morley v. Strombom and bikers, fS Sos. <§• Pull. 254.) it was held, that where three partners, two of whom resided abroad, were sued for a partnership debt, and the resident partner appeared by himself, but refused to appear for his copartners, the sheriff, on a distringas against the non-resident partners, to compel their appearance, might take the partnership effects, in the possession of the resident partner, though purchased and paid for by him alone; and the Court refused to relieve him, saying, that what might he taken under an execution, might be taken under a distress.
Vide Merserean v. Norton, (l5 Johns. Rep. 179.)