Timothy Gay & Co. v. Johnson , 45 N.H. 587 ( 1864 )

Bartlett, J.

It has already been decided, that, upon the faets agreed, the property attached should be first applied on the executions of the partnership creditors. Tenney v. Johnson, 43 N. H. 144. If the facts had shown that two of the notes of Richey were really partnership debts, yet, as he chose to include in his suit and judgment an individual debt of Piper, it may be doubted if he could, as against the plaintiffs, who are creditors of the firm, levy his execution upon the partnership property. Witt v. Marsh, 14 Vt. 303; Miller v. Scherder, 2 Comst. 268; Backman v. Crawford, 3 Humph. 213; Pearsons v. Tincker, 36 Me. 387; Bicknell v. Trickey, 34 Me. 273; McCrillis v. Wilson, 34 Me. 286; Lambard v. Pike, 33 Me. 141; Coburn v. Kerswell, 35 Me. 128. But it is unnecessary to decide this question or to inquire if in this case Richey is not concluded by his election under the circumstances to bring his suit and take his judgment and execution against Piper individually, Benson v. Ela, 35 N. H. 403, Maynard v. Fellows, 43 N. H. 257; for the mere fact that the signers of two of the notes held by Richey are the individuals who composed the firm of D. Gr. Piper & Co., is insufficient to show that these notes were partnership debts. Whitehouse v. Hanson, 42 N. H. 17; Maynard v. Fellows, 43 N. H. 258; Richardson v. Huggins, 23 N. H. 122; Buffum v. Seaver, 16 N. H. 160. According to the provisions of the case, there must be judgment for the plaintiff for the amount in the defendant’s hands.