Mansfield v. Blaisdell

5 N.H. 190 | Superior Court of New Hampshire | 1830

The opinion of the court was delivered by

Richardson, C. J.

It seems to have been understood as settled law for a long time, that the share which a partner has in the partnership property, may be taken and sold by virtue of an execution issued for his separate debt.

According to the old cases in the courts of law the separate creditor took the goods of the partners, and sold the share of his debtor, without enquiring what were the rights of the other partners or what was the real share of each. 1 Shower, 169, Blackhurst v. Clinkard; 1 Salkeld, 392; Comyn’s Rep. 277.

But the true nature of a partnership seems to have been better understood in more modern times, and it is now settled that each partner has a lien on the partnership property, in respect to the balance due to him, and the liabilities he may have incurred on account of the partnership. 4 Johns. C. Rep. 525; Cowper, 445, Fox v. Hanbury; 4 Vesey, 396, Taylor v. Fields; 17 Vesey, 193, Dutton v. Morrison; 16 Johns. 102, Smith's Case.

It is also well settled, that partnership property cannot he hoi den to pay the separate debt of an individual partner, until all the partnership debts are paid. From the very nature of a partnership, it is dear, that the whole property is pledged to the payment of the partnership debts, in preference to any other purpose. 4 Vesey, 396, Taylor v. Fields; 17 Mass. Rep. 206-207; 6 Pick. 350.

The necessary consequence of all this is, that goods belonging to a firm cannot be holden by attachment upon a writ, or by a seizure upon execution, against an individual partner for his separate debt, so long as any debt remains due from the company. All that can be taken is the interest of the debtor in the firm ; not the partnership.effects themselves, but the right of the partner to a share of the surplus that may remain after all the debts are paid. 16 Johns. 106; 3 B. & P. 288, Parker v. Pistor; ibid. 289, Chapman v. Koops; 2 Johns. Ch. Rep. 548, Moody v. Payne; 4 Vesey, 396; 2 V. & B. 301; 6 Mass. Rep. 271, Fisk v. Herrick.

It is therefore, clear, that the plaintiffs, in this case, were entitled to have the partnership property of Harris and Blaisdell applied to the payment of their execution against the firm, in preference to the executions, which had issued against the individual partners, and there must he

. Judgment on the verdict.