Dow v. Sayward

Upham, J. The section of the act under which the question before us arises, has not received a judicial construction in this state, except in this particular — that the statute of limitations constitutes no bar to the maintenance [275] of an action, where the defendant has resided without the state, unless there has been property of the defendant within the state during the full term of six years, which might have been attached “ by the common and ordinary process of law.” 6 N. H. Rep. 557, Sissons vs. Bicknell. There has been no decision by our courts as to what constitutes an attachment “ by the common and ordinary process of law,” as defined in the statute. This question is here raised, on the ground that a portion of the property owned by the defendant was partnership property, and that, if partnership property, it could not be attached by common process of attachment. Both these positions are contested. It is contended that joint proprietors in a stage line are not partners ; and various authorities have been cited to this point. It is very clear, however, that there may be a partnership in this business as well as any other ; and where the general ingredients of a partnership — a common ownership, with a communion of profit and loss — enter into the arrangement made by the parties, it will be difficult to distinguish it from any ordinary partnership. There are various private companies that associate together under peculiar articles of agreement ; and, where these terms of agreement are known, the power of a member of the company would be limited in conformity to them. It would be a fraud upon the.rest of the company to enter into an agreement with one of the members, in violation of what was known to be the common understanding of the company. A partner is presumed to have authority to bind the firm, and to act as an authorized agent for the rest ; but this presumption has no operation, where a party, who would rely upon it, has received express notice to the contrary. Thus, where four persons are partners in a coach concern, but one, by agreement, provides the coach, at a certain rate per mile, he alone is responsible for repairs done to the coach by a person cognizant of this arrangement. Or where partners [276] in a stage line confide the entire management of the property to a general agent, who alone has power to pledge the company’s credit, and this is fully known and understood, his acts can alone bind the firm. “ At the same time, the body of the proprietors are jointly liable to a passenger, or a person who sends goods by their conveyance : and they are equally responsible for any damage that may be sustained through the negligence of a servant engaged by any one of them, whilst he is in the prosecution of the joint business.” Gow on Partnership 164; 2 Taunt. 49, Barton vs. Hanson; 9 Johns. 307, Wetmore vs. Baker & a.; 1 Pick. 50, Dwight vs. Brewster; 5 Barn. & Cres. 505, Helsby & al. vs. Mears. They, in fact, are partners. Stage coach proprietors are usually partners ; but it is not unfrequently the case that the terms of association and arrangement are such as to vary their mode of business and liabilities, where they are known, in some respects from that of an ordinary partnership. Admitting the Dover and Alfred Stage Company to be a partnership association, the question arises whether the defendant’s interest in that property could be taken by the common and ordinary process of attachment. In the case of Gibson vs. Stevens, 7 N. H. Rep. 352, it was held that partnership property could not be seized and sold upon execution, on a debt against one of the partners, and that the creditor could have only the right of his debtor, which is an interest in the surplus, after paying the partnership debts. But it is not there decided that this interest in the partnership cannot be taken by attachment. In the case of Morrison vs. Blodgett & a., 8 N. H. Rep. 238, is a very elaborate examination of this question by Mr. Chief Justice Parker, and the opinion of the court is strongly intimated that a general attachment of the interest of a partner in a firm, may be made ; though it is suggested that in order to make the attachment available, by obtaining a true knowledge of the extent of the partnership interest, it might [277] be expedient or necessary to summon the other parties as trustees. We are unable now to see any better course than was there suggested. There seems to be no good reason for giving up the process of attachment at law in such cases, as it would probably in this mode be rendered equally as effectual and prompt as any other means of securing the interest of the debtor that might be devised. If a process in chancery should be deemed more effectual, still it might be desirable also to retain a right of attachment at law. See, also, Page vs. Carpenter, 10 N. H. Rep. 77. But there is a difficulty beyond this, in this case, that we think will require a new trial of the action. There is not sufficient evidence of an open, visible possession of the property alleged to be owned by the defendant, as necessarily to constitute, within the meaning of the act, a bar to the operation of the statute of limitations. The mere ownership of property we do not regard as sufficient to take the case out of the statute. There must be such notoriety to this ownership that the creditor, with ordinary care and diligence, might be aware of such ownership ; and either secure his debt by attachment, or in this way give jurisdiction to the court, so that judgment might be recovered and his claim be perpetuated. The evidence offered in this case tends to show a notoriety of this description, but is not conclusive. It should be submitted to a jury to determine this fact, which, if found either way, would probably be decisive of this case. Yerdict set aside and a new trial granted. .