Berry v. Harris

Bowiü, C. J., delivering the opinion of the Court, after stating the case as on pp. 30 — 32 ante, said: The appellant’s prayers affirm: 1st. That a separate creditor of an individual partner, cannot attach by way of execution, a debt d.ue to the partnership, of which that individual is a member, for his private debt, unless there has been a settlement of the partnership and the interests of the debtor partner first ascertained. 2nd. That this applies to the case of surviving partners as well as of living partners. 3rd. That only the actual interest of the debtor partner, after final settlement thereof, can be recovered by tbe attaching creditor. 4th.

That there was no sufficient evidence in the cause of the quantum oí interest of John C. Dorsey in the partnership assets. The rights of joint and separate creditors, during the existence of the partnership, differ materially from their rights, after the termination of the firm, and the estate has gone into Equity for distribution. In the matter of Smith, 16 Johnson Rep., 102 , 109. McCullough vs. Dashiell, 1 H. & G., 96 . 1 Am.

Le. Ca., 472. The notes on these cases, show tbe tendency to confusion in deciding ³⁸ upon the relative rights of the two classes of creditors. It is well remarked: ' “Some judges and text writers by not distinguishing between solvency and insolvency, and between legal and equitable jurisdiction, have moulded a system on the subject, which through the departure from principles, is law sacrificed and equity not attained.” Justice Cowen, in the case of Phillips vs. Cook, 24 Wend., 393, 408 , has elaborately examined and lucidly defined the limits of the jurisdiction of the Courts of Law and Equity on this subject.

Keeping these distinctions steadily in view, we will examine the question before us, by the light of authority and reason. In the text of Collyer on Partnership, Book 3, sec. 822, it is said: “by the law of England, the creditor of any one partner may take in execution, that partner’s interest, in all the tangible property of the partnership.” The Editor, Mr. Perkins, refers in note 2, to this section, to a number of authorities^ English and American, to support this position, extending the doctrine to attachments, in those States where attachments on mesne process are allowed, by numerous citations of decisions in several States, upon which he builds this conclusion: “There seems to be no good reason for giving up the process of attachment at law in such cases, as it would probably in this mode be rendered equally as effectual and prompt as any other means of securing the interest of the debtor that might be devised. If a process in Chancery should be deemed more effectual, still it might be desirable also to retain a right of attachment at law.” Vide authorities there cited. The subject of execution and attachment there spoken of, is tangible property, and the remedy is supposed to be resorted to during the existence of the partnership.

The learned editors of the American Leading Gases, in their notes on the cases of Ex-parte Smith, and McCullough vs. Dashiell, remark: “It is necessary, however, to reconcile the various cases, to distinguish between a Common Law execution against tangible chattels, ³⁹ such as a fieri facias and a foreign attachment, or proceeding in its nature, against a debt due to a firm, or property-belonging to it in the possession of the garnishee. The foreign attachment or proceeding in the nature of a foreign attachment against a debt or chose in action, and also against chattels in the possession of a garnishee, by its very nature, attaches only upon the separate beneficial interest of the partner in the debt or other subject in the hands of the garnishee; because, it is a part of the proceedings to measure and adjudge what is the interest of the partner in the hands of