Harper v. Fox

The opinion of the Court was delivered by Gibson, C. J. The sheriff’s acceptance of payment in banknotes discharged the obligation; consequently,- the return on it, though true as to the particulars, was false in the concrete, which was all that the court could notice. Pie took the notes as cash, and must account for them as cash; but to whom? Certainly not to the partner, Shunk, unless the money was made of his separate estate, which does not appear.' A partner has power to dispose of the joipt effects by his separate act; and that he may not bind the firm by submission to arbitration, or confession of a judgment, is because it would bind the persons and separate estates of the members, and thus transcend the limits of partnership authority. But that a judgment against a single partner, as the representative of the firm, may be satisfied out of the joint effects, was said in Taylor v. Henderson, (17 Serg. & Rawle 456). A judgment may be recovered against a less number than all the members, if there be not a plea in abatement; and the effects of the partnership may consequently be seized in execution of it. What matters it, then; whether the judgment has been obtained adversely or by confession, if it be against the firm? It seems that the practice of the courts of New York is to do no more, in a case like the present, than restrain the execution to the joint [144] effects and the separate estate of the partner personally bound; and certainly the objects of the law may be lawfully attained by it. In this instance, we gather from the charge that the execution was levied on the partnership property; and from the return, that the money was paid by the partners to release it. If the fact bo so, the plaintiff is entitled to recover his whole demand; for he is entitled to all that was not made from Shunk’s separate estate. In these particulars, the direction was erroneous. Judgment reversed and venire de novo awarded.