6 Johns. Ch. 186 | New York Court of Chancery | 1822
The existence of a copartnership between the plaintiffs, as charged in the bill, appears to be sufficiently established by the testimony. But there is not any just ground for interfering with the proceedings, under the attachment act, against the plaintiff, R., as an absconding debtor, upon the charge of irregularity and fraud. Thomas Kittle, the creditor, residing abroad, was a competent creditor to institute proceedings under the absconding debtor act. The 20th section of the act expressly declares, that “ any creditor residing out of the state,” shall be deemed a creditor within the act; and I cannot undertake to say that K. was not a bona fide creditor, when be made his affidavit to that effect before the Recorder of JYew-Yorlc. Nor does there appear to be any fraud in the appointment of the defendants as trustees; nor can the proceedings, safely, upon any of the grounds taken, be vacated and declared void. The whole difficulty of the case arises out of the fact, that the joint effects of the copartners have been taken under the attachment against the separate estate of R.
It has been adjudged by the Supreme Court, in the case of Chipman, (14 Johns. Rep. 217.) that a joint creditor 'can institute proceedings under the act, against the separate property and effects of the absconding partner, though the other partner was resident here, and in a condition to be arrested. It has also been decided by the same Court, in the case of Smith, (16 Johns. Rep. 102.) that the Sheriff can take only the separate property of the absconding debtor, and that he cannot seize the partnership effects, as the other partner has a light to retain and dispose of them for the payment of the partnership debts; and the trustees would of course have a right to an account as against the solvent partner, for the absconding debtor’s proportion of the surplus, after payment of the partnership debts. In that last case, partnership property was seized by the Sheriff, under the attachment, in the pos
The following decree was entered :
“ It is declared, that a copartnership between the plaintiffs, in the mercantile transactions of the plaintiff, R., in the city of New-York, as mentioned in the pleadings and proofs, is fully and satisfactorily proved. And, it is further declared, that Thomas Kittle, though residing ont of the state, was a competent creditor within the purview of the absconding debtor act, to institute proceedings under it, and that there is not sufficient evidence of fraud either is