Sanborn v. Royce

C. Allen, J. The question presented in this case has been several times alluded to, but has never been decided in Massachusetts, though it has been the subject of much discussion and conflicting opinion elsewhere. It has been declared, that the real and actual interest of each partner in the partnership stock is the net balance which will be coming to him after payment of all the partnership debts, and a just settlement of the account between himself and his partner. Peck v. Fisher, 7 Cush. 386. This doctrine is in accordance with the great body of modern decisions. It is also declared in Allen v. Wells, 22 Pick. 450, that a separate creditor can only take and sell the interest of the debtor in the partnership property, being his share upon a division of the surplus, after discharging all demands upon the partnership. This rule also is supported by a great weight of authority. It is rather remarkable, in view of the multitude of cases in which the question has arisen, and the conflict of opinion which has existed, that the manner in which a creditor of one member of a firm may apply that member’s interest in the partnership to the payment of his debt, has not been more often the subject of legislation. The rights of parties, however, in this State, as in almost all the other States of the Union, are still left to be worked out as well as possible by the courts. There is an entire concurrence of opinion among the leading text-writers, in recent times, that courts of law cannot adequately deal with the subject. 3 Kent Com. 65, n. Story Part. §§ 262, 312. Collyer Part. (6th ed.) § 793. Lindley sums up what he has to say with the remark: “ The truth, however, is that the whole of this branch of the law is in a most unsatisfactory condition, and requires to be put on an entirely new footing.” Lindley Part. (4th ed.) 694. [596] It is sufficient for the purposes of the present case to decide, as we do, that the seizure and actual removal of specific chattels of a partnership, on mesne process or execution against one member thereof for his private debt, and the exclusion of the firm from the possession of its property, are a trespass. The authorities in support of this proposition seem to us more in accordance with just legal principles, than those which are opposed to it. Bank v. Carrollton Railroad, 11 Wall. 624, 628, 629. Cropper v. Coburn, 2 Curtis, 465. Burnell v. Hunt, 5 Jur. 650, by Patteson, J. Garvin v. Paul, 47 N. H. 158. Durborrow’s appeal, 84 Penn. St. 404. Haynes v. Knowles, 36 Mich. 407. Levy v. Cowan, 27 La. Ann. 556. Exceptions overruled* Footnotes [*] A similar decision was made in Worcester, October 6, 1882, in the case of