Johnston v. Mathews

Grason, J., delivered the opinion of the Court. Upon this appeal two questions are presented for our consideration ; first, whether, in an attachment against one partner for the recovery of a partnership debt, the assets of the firm can be attached and condemned ;* and, second, whether there was error in the withdrawal, by the Court below, of the question of fraud from the jury. [368] (Decided 10th March, 1870.) 1st. A suit Avas commenced by the appellants against the firm of L. Harrison, Davidson & Co., and Davidson Avas returned summoned. Harrison had absconded, and an attachment, as auxiliary to the suit, was issued against Louis Harrison alone, and was laid upon the partnership assets only, as appears by the sheriff’s return and the schedule thereto annexed. It Avas earnestly and ingeniously contended, in the argument of the case in this Court, that, as the debt was due by the firm, and as the partnership assets must be first applied to the payment of the partnership debts, the attachment against Harrison Avas properly laid upon the partnership assets, and that they were liable to condemnation. We cannot concur in this view of the case. One of the partners having been summoned in the suit, which was instituted against all the partners, there was a party in Court, a judgment against whom would have been effective against the whole of the effects and assets of the firm. 1 Black S. C. Reps., 569. This being the case, no attachment Avould lie against the absconding partner, except for the purpose of attaching and condemning his individual property or credits. There was, therefore, no error in rejecting the third, fourth and fifth prayers of the appellants. As this view of the case Avill prevent a recovery of their claim against the partnership, by attachment against the absent partners, it is unnecessary for us to enquire whether the deed of trust, executed by Harrrison & Davidson to the appellee, is fraudulent or not. Judgment affirmed.