15 F. Cas. 1177 | U.S. Circuit Court for the District of Rhode Island | 1812
In order to adjudge the trustee responsible in this suit, it must be decided, that the funds of one partnership may be applied .to the payment of the debts of another partnership, upon the mere proof, that the principal debtor has an interest in each firm. If this be correct, it will follow that a separate creditor of one partner will have greater equitable, as well as legal rights, than the partner himself has. The general rule undoubtedly is, that the interest of each partner in the partnership funds is only what remains after the partnership accounts are taken; and unless upon such an account the partner be a creditor of the fund, he is entitled to nothing. And if the partnership be insolvent, the same effect follows. West v. Skip, 1 Ves. Sr. 240; Doddington v. Hallet, Id. 497; Fox v. Hanbury, Cowp. 445. Now the party sued as a trustee in this suit is a total stranger to both partnerships. There is nothing before the court, from which it can ascertain the situation of the partnership, whether solvent or not, whether Gorham be a creditor on the fund or not, and if a creditor,-what is his proportion of interest. If therefore the trustee be held, it must be from some stubborn rule of law, which rides over all these difficulties. I know of no such rule.
I have the authority of Lord Hardwicke and Lord Mansfield, in the cases above cited, for holding that a creditor cannot be in a better situation, than the partner himself, as to his right upon the joint funds; and their opinions are fully corroborated by more recent authorities. But I have been pressed with the common case of a separate execution against the tangible partnership property, in which it is said, that the moiety of the judgment debtor may be sold on the execution. There are certainly decisions, which countenance this opinion, and perhaps it may be considered, that at law the sheriff has a right to seize such property in execution. Heydon v. Heydon, 1 Salk. 392; Bachurst v. Clinkard, 1 Show. 173; Jacky v. Butler, 2 Ld. Raym. 871; Eddie v. Davidson, 2 Doug. 650; Parker v. Pistor, 3 Bos. & P. 288; Chapman v. Koops, Id. 289; Morley v. Strombon, Id. 254. But still it by no means follows, that he can sell and convey an indefeasible title to a purchaser of a moiety of the property. He may sell the interest of the partner therein, but he sells it cum onere; and although
I feel pleasure in adding, that my present opinion is fully supported by the decision of the supreme' court of Massachusetts, in Fisk v. Herrick, 6 Mass. 271.
Let the trustee be discharged, with costs.
By the statute of Rhode Island (1 Laws, 20S), a foreign attachment issues only in cases, where the debtor resides out of the state, or conceals himself therein; and bisection 3, “if it shall appear by the oath or the person or persons, who have been served with the copy of any writ as aforesaid, that he or they have not any of the personal estate of the defendant in their hands, that then such action shall be dismissed, and the pei-son, who shall appear to defend such suit, shall recover his cost”
THIS COURT therefore ordered, that the writ should be dismissed; and awarded judgment “that the plaintiff take nothing by his writ.”