Crane v. French , 1 Wend. 311 ( 1828 )

By the Court,

Savage, Ch. J.

The correctness of the decision of the last term, is manifest from the facts of the case. The ceremony of issuing a writ after the return day, and procuring French’s admission of service and promise to appear, and then the sheriff’s return, was perfectly inoperative and void as to Wilkins. By the 13th section of the act for the amendment of the law, (1 R. L. 521,) process may be issued against joint debtors, and if any one be taken and brought into court, he shall answer, &c. judgment shall be entered against all, and be effectual against their joint property: but here, French was never taken nor brought into court. He volunteered to confess a judgment. It has often been decided by this court, that one partner cannot bind another without his assent, by bond and warrant, to confess a judgment; but that such bond is an extinguishment of the partnership debt. If a bond and warrant to confess judgment is inoperative against a partner or joint debtor not consenting to it, a fortiori, one shall not confess a judgment to be obligatory on another without his consent, or without due process of law. Had French been actually brought into court, by a regular service of process against him and his partner, I am of opinion he might have confessed a judgment which would have bound the joint property. But this case must stand upon his filing common bail and confessing judgment, unaided by the capias. One partner cannot confess a voluntary judgment in the name of his partner. (This subject is discussed in McBride v. Hagan, decided at this term, and authorities are there cited which sustain this proposition.) The judgment was valid against French, but not as to Wilkins. (2 Caines, 254.) By the execution in this cause, the sheriff had a right to sell the property of French, but of no other person. He had a right to sell the interest of French in the partnership property. What was that interest 1 The interest of each partner is his share of the surplus after the partnership accounts are taken; and that interest or surplus only is liable to the separate creditors of such partner, claiming either by assignment or under execution. (4 Johns. Ch. R. 525.) In Taylor v. Fields, (4 Vesey, jun. 396,) Ch. Baron M’Donald says, that “ the corpus of the partnership effects is joint property, and neither party separately has any thing in that corpus, but the interest of each is only his share of what remains after the partnership accounts are taken.” In the matter of Smith, (16 Johns. R. 106,) the subject is discussed and settled. It is there held that the sheriff can sell, on execution, the actual interest which the partner has in the property, after the partnership accounts are settled. The purchaser takes it in the same manner as the debtor had it, and subject to the rights of the other partner, who has a right to retain the possession of the partnership effects, for the payment of the partnership debts. The sheriff therefore, sells the mere right and title to the partnership property, but does not deliver possession. The rights of the parties being thus understood, there is no difficulty in deciding the present motion. The plaintiff, Burr Wakeman, had he become the purchaser under his own execution, would have been substituted in' the place of French, but would have had no right to withdraw the goods from the execution of the creditors of the firm. They would still be liable to the execution of Crane and others v. French & Wilkins, who have preference, being creditors of the firm, while Walceman, from the manner in which he obtained judgment, is a creditor of French only.

The motion must be granted, with costs.