Garvin v. Paul , 47 N.H. 158 ( 1866 )

Nesmith, J.

From the plea, and the other facts agreed to in this case, it appears that the defendant, as a deputy sheriff duly qualified, having a writ in his possession in favor of certain creditors against J ohn A. Garvin, attached -the staves in suit, as the property of said J ohn alone, and that said officer took, and retained possession of the said staves, until they were reclaimed by the officer serving the writ of replevin in this suit; it being also an admitted fact, that said staves, at the time of the attachment, were the partnership property of the plaintiff and said John A. Garvin, and were then in their joint possession. It has been many times settled in this State, and must be regarded as the law at this time, "That a sheriff, upon a demand against one partner for his private debt, cannot seize the goods of the partnership, and exclude the other partners from the possession.” Gibson v. Stevens, 7 N. H. 352; Morrison v. Blodgett, 8 N. H. 238; Newman v. Bean, 21 N. H. 93 ; Hill v. Wiggin, 31 N. H. 292 ; Treadwell v. Brown, 43 N. H. 290 ; Jarvis v. Brooks, 23 N. H.; 136; Crockett v. Crane, 33 N. H. 548.

In the aforesaid case of Newman v. Bean, it was held, "That the interest of a partner is not an interest in the specific articles held by the firm, but only an interest in the surplus, after the debts of the firm have been paid. An action may be maintained against a third person, who seizes goods on execution belonging to a firm for the debt of an individual partner.” Joint creditors have the primary claim upon the joint fund in the distribution of assets of insolvent partners, and so far as the partnership property has been acquired by means of partnership debts, those debts have in equity a priority of claim to be discharged, and the separate creditors are only entitled in equity to seek payment from the surplus of the joint fund, after the satisfaction of the joint debtors. The respective rights of partners and their creditors, and the manner of enforcing remedies against partnerships, and separate partners, and their attendant difficulties, are pretty thoroughly discussed in the preceding cases before quoted. Vide also, Matter of Peter S. Smith, 16 Johnson 102, and note.

In Taylor v. Fields, 4 Vesey 369, Jhief Baron McDonald, in delivering the opinion of the court, says, that an assignee, executor, or separate creditor coming in the right of one partner against the joint property comes into nothing more than an interest in the partnership, which cannot be tangible, or available, or be delivered, but under an account between the partnership and the partner. And it is an item in the account, that enough must be left for the partnership debts.

In the case of Treadwell v. Brown, recently decided in this State, the court well remarks, that our statute law and one or more of our legal decisions have provided generally, that the interest of each partner may be attached, or seized and sold on execution, but that the corpus of the partnership property cannot be taken, and the other partner excluded from the possession. Hence, the practical result of our decisions on this subject is to delay the creditors holding private claims against one of the partners.

We have in practice no adequate prompt compulsory power, binding the partners to close their partnership accounts within any reasonable time, so as to present or set apart the surplus fund for the satisfaction of the claims existing against the several partners in their private capacity. Abuses of this kind are well known to exist, and legislative redress is called for now, as it has been heretofore. In the mean time, in the present state of the law in this State, we think replevin will lie as the appropriate remedy for a party situated as the plaintiff is. Section 2 of chapter 204, of the Devised Statutes, provides, that when any goods or chattels, attached on any writ of mesne process, are claimed by any other person, he may maintain replevin therefor. If the verdict be found for the plaintiff, damages will be assessed for the caption and detention, and if for the defendant, they will be assessed for the value of the property, and not for the return of the specific property, as at common law. Kendall v. Fitz, 22 N. H. 1; Messer v. Bailey, 31 N. H. 9.

The reasoning of the court in Hart v. Fitzgerald, 2 Mass. 509, must be considered as modified by our statute and practice applicable to this action, more especially, as the chattels here paid for, are capable in law of a severance in the assessment of damages. Again, this action can be maintained in its present form by one of the partners. In actions in form ex delicto, and which are not for the breach of a contract, if a party, who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on the trial; and the defendant cannot, as in actions in form ex contractu, give in evidence the non-joinder as the ground of non-suit on the plea of the general issue, or demur, or move in arrest of judgment, or support a writ of error, though it appear upon the face of the declaration, or other pleadings of the plaintiff, that there is another party, who ought to have joined; and if one of several part owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part owners may afterwards sue alone for the injury to their undivided shares, and the defendant cannot plead in abatement of such action. 1 Chitty’s Pleadings p. 56, 4th Am. Ed.; Collyer on Partnership, sec. 671; Gibson v. Stevens, ante; Newman v. Bean, ante.

Whether, if defendant had intended to deny plaintiff’s right to recover in this action, he should not as matter of substance have traversed plaintiff’s exclusive right of ownership in the property sued for, and presented the issue in that form to plaintiff may be a question worthy of his consideration, and much light on this point may be derived from the able decision in Rogers v. Arnold & others, 12 Wendell 30. But even if another party should be joined with plaintiff — a matter not necessary as the pleadings stand — it would be in the discretion ot the court to allow another plaintiff to be added. Pitkin v. Roby, 43 N. H. 138.

Under our view of the case, we think the demurrer to defendant’s plea should be sustained, and the case must be, by agreement of parties, discharged.