Lewis v. Conrad

Wright, J.

Whether upon a judgment against a partnership, an execution may issue, and thereunder the individual property of those composing the firm be sold, vrithout some further step on the part of the plaintiff in the first instance, to make it liable, we do not deem it necessary to determine in this case. All doubt as to the proper practice, in this respect under section 1690 and 1691 of the Code, is set at rest by the corresponding section (181¹) of the Code of Civil Practice now in force, and the question is therefore of but little practical importance. The method pointed out now for making such property liable as by scire facias. Whether this course was necessary at the time the writ issued and the property was seized in this instance we need. not determine for the reason that upon another ground we conclude the ruling below was correct.

Plaintiffs had no right to levy upon individual property, if .“sufficient cause was shown to the contrary,’' to use the language of the Code. Now property was attached, which prima facie and without any contrary showing, must be presumed to be partnership effects. But what disposition was made of this nowhere appears. We think it ivas the duty of plaintiffs at least to show that this property had been exhausted? or that there was some good reason why it was not subject to the judgment, before he could take individual property•Eor this reason therefore, without examining the main questions, we conclude the court below did not err.

Judgment affirmed.

1 . Section 2785 Revision of I860.