People ex rel. Till v. Roy

| Neb. | Jan 15, 1874

Lake, Ch. J.

In tbis case an alternative writ of mandamus was issued during tbe present term, requiring tbe 'defendant, wbo is a constable of Richardson county, and wbo, it was alleged, bad seized in attachment certain of tbe relator’s personal property claimed as exempt, to proceed as directed by section (513), General Statutes, 616, to have said property .appraised, and permit him to select and retain therefrom to tbe amount of five hundred dollars in value, or that be show cause why be should not do so.

It appears that tbe rélator is tbe bead of a family, and in all other respects within tbe provisions of tbe statute authorizing a debtor to bold personal property under tbe five hundred dollar exemption clause. Tbe only disputed point is as to tbe ownership of tbe property in controversy.

Tbe answer of tbe defendant, after setting out tbe various writs by which tbe property was seized, alleges that it was not the relator’s, but belonged to a firm doing business under the name and style of "William Till & Co., and that the several orders of attachment were-issued in actions brought by certain creditors of said firm.

There is no question but that these goods wore at one time a part of the stock in trade of said firm, of which the relator was a member, and that the several demands on which said suits are brought, are valid claims against William Till & Co. But it is contended that just about the time, or a little before the property was taken possession of by the constable, the partnership was dissolved, and a division of the assets of the firm made, whereby this particular property fell to the- share of the relator.

It is the law, undoubtedly, that one member of a firm cannot hold his interest in the partnership effects exempt from the payment of the debts of the concern, without the consent of his co-partners. To hold otherwise would in many cases enable a person, so disposed, to throw upon his associates the entire burden of paying off the debts of the firm. We hold that so long as there are unpaid debts, no part of the partnership effects can be released from liability for their payment, without the consent of every member of the firm. “ The corpus of partnership effects is joint property, and neither partner, separately, has anything in that corpus: but the interest of each is only his share of what remains after the partnership accounts are taken.” Taylor v. Field, 4 Ves., 196.

The testimony before us is very meagre indeed, and exceedingly unsatisfactory. The only witness called to establish the relator’s claim of individual ownership over the goods, is his attorney, who only testifies that Till and his co-partner told Mm they had dissolved and divided the property. This is merely hearsay and proves nothing.

But suppose it were shown satisfactorily that the partnership had terminated by the agreement of the parties, and nothing more, still the relator would not be entitled to hold this property, released from the lien of his co-partner for the satisfaction of their joint debts. To give him this right, he is required to show that such was their agreement,- and that it was made bona fide. If nought but a bare dissolution be shown, it will be presumed that the assets of the firm are held by the member thereof, in. whose possession they may be found, clothed with a trust for his former associates, to apply the same in satisfaction of the demands of their joint creditors. Ex parte Williams, 11 Ves., 3. Story on Partnership, Secs. 360, 361.

Eor .the reason, therefore, that the evidence does not warrant us in finding that the relator holds this property in his own individual right, released from the obligation to apply it towards the payment of these partnership liabilities, the peremptory writ must be denied, and the cause dismissed at the costs of the relator.

Judgment accordingly.

The other justices concur.