Tucker v. Adams , 63 N.H. 361 ( 1885 )

The goods did not lose the character of property by being illegally kept for sale, or being used in an illegal business. Whatever difficulties either partner might encounter in enforcing the partnership contract against the other, the title of their chattels was not destroyed by the unlawfulness of their traffic. The evidence concerning the mortgages raises no question of law. It is not found as a fact that the plaintiff in interest had any knowledge of the mortgages when he ordered the attachment, or acted upon a belief that they showed the true state of the title, or was misled by them, or was induced to change his position by the mortgagee's representation that the goods were the property of Fife. The facts of an estoppel are not stated in the reserved case.

The provisions of Gen. Laws, c. 117, ss. 1, 2, requiring every firm to file with the town-clerk a certificate of their names and residences, and relieving a plaintiff from certain consequences of the nonjoinder of a partner as a defendant in an action against a firm, are not applicable to this case. The defendant, having neglected to render the demanded account, cannot set up the mortgages as a defence. Whether he can be relieved on a bill in equity upon c. 29, Laws of 1883, is a question not raised by the case. The attached goods remained in the rightful possession of the defendant and his partner, and their paramount title, asserted by the defendant, is a defence in this suit. Hill v. Wiggin, 31 N.H. 292, 30'); Clement v. little, 42 N.H. 563, 570. Some other process is necessary for reaching the interest of Fife in such partnership property as may be left after the payment of partnership debts.

Case discharged.

BINGHAM, J., did not sit: the others concurred.