Hill v. Wiggin

Bell, J. The attachment might be invalid as against the rights of Messer, but we are of opinion that Messer alone, or those who hold under him, can take advantage of this defect. If he does not complain, no one else can on this account. Scott v. Whittemore, 7 Foster’s Rep. 309. It is agreed that the defendant, Osgood, in the original action, was a partner in business of one John E. Little, and that he and Little, at the time of the attachment, owned the coach and sleigh, attached by the plaintiff in partnership. By the practice of the courts of this State, until a recent period, and by the law as it always had been understood, and as it is still held elsewhere, “ it was, undoubtedly, the practice to levy on execution against one of several partners, upon all or a part of the goods which belonged to the partnership.” In the case of Morrison v. Blodgett, 8 N. H. Rep. 238, decided in 1836, it was laid down by this court, that “ this practice, which formerly prevailed, cannot be supported under the views now very generally taken of the rights and liabilities of partnership creditors and partners.” And, in that case, it was decided that “ a sheriff upon a demand against one partner, for his private debt, cannot seize [301] the goods of the partnership and exclude the other partners from the possession.” The same principle, was recognized in Page v. Carpenter, 10 N. H. Rep. 77, and in Doe v. Sayward, 14 N. H. Rep. 9, though it was there held that “ the interest of one partner in the property, of the firm, though incapable of actual seizure and reduction into possession, is liable to attachment and levy and sale on execution.” The same views were carried out by the court to their consequences in Newman v. Bean, 1 Foster’s Rep. 93, where it was held that “ the interest of a partner is not an interest in the specific articles held by the firm, but only an interest in the surplus after the debts of the firm have been paid. An action may be maintained against a third person, who seizes goods on execution belonging to a firm, for the debt of an individual partner.” It has never been explained, so far as is known, how any attachment or levy can be made without an actual seizure of goods and chattels, and their reduction into possession by the officer, as suggested in Doe v. Sayward; and the effect of these decisions has practically been to exempt partnership property from any liability for the debts of the individual partners, and many embarrassed debtors, as might be expected, own no property except in partnership, and creditors find themselves unable to reach the property of their debtors, however ample it may be, from the want of any process by which it can be readily and effectually seized and applied. The mischiefs and inconveniences resulting from the present state of the law seem to be of a serious character, and the long list of cases cited by the plaintiff, in which the court have had occasion to consider this question, might, perhaps, be regarded as evincing the unwillingness of the profession to acquiesce in these decisions. But the doctrines laid down in these cases are still held by a majority of the court, and they must, therefore, be regarded as the law for the present case. [302] The sheriff, having attached and taken into his possession property supposed to be liable to attachment, and delivered it to a receipter, is entitled to demand it of the receipter, and if it is not delivered to him, to recover its value, in ordinary cases, because he is accountable to others for it, whether it was attached rightfully or otherwise. His title, however defective it may be as to others, is good enough against his own bailee. If the creditor recovers an execution in his action against the owner of the property attached, the sheriff may be accountable to him. If he fails in his suit, the sheriff may be liable to return the property to the debtor. If the property attached is the property of a stranger, or is subject to any lien or claim of a stranger, the sheriff may be liable to him for its value. But if the receipter suffer the property to go into the hands of the owner, either the debtor or a stranger, or of any mortgagee, or other person entitled to the possession, and to whom the sheriff would, under the circumstances, be himself liable, if he had the property in his own hands, that fact appearing in evidence, constitutes a sufficient defence for the receipter, because it shows that the sheriff is no longer liable over for the property, except in those cases where the property is holden, and is required to satisfy the judgment in the action in which the attachment was made. Webster v. Harper, 7 N. H. Rep. 596; Whitney v. Harwell, 10 N. H. Rep. 9; Scott v. Whittemore, 7 Foster’s Rep. 309. In the present case, the receipter did not, in fact, take the property in question into his possession, but suffered it to remain in the possession of the partners to whom it belonged, and they have since severally conveyed their interest to Prescott, from whom the title has passed to Burnham, and Burnham now has the property in his possession. As the sheriff cannot reclaim or retake this property from Burnham, he can, consequently, maintain no action against his .receipter. There is a class of cases where an attachment is regarded [303] as merely nominal, where the reeeipter is not permitted to deny the attachment, as if a party give a receipt for property not in being, or to which the debtor is known by the receipter to have no title. In such a case, the reeeipter cannot defend himself by any evidence relative to the state of the property. Morrison v. Blodgett, 8 N. H. Rep. 238; Bruce v. Pettingill, 12 N. H. Rep. 344; Webb v. Steele, 13 N. H. Rep. 230. The evidence does not show this ease to be one of the class referred to, and the language of the receipt seems inconsistent with that idea. The demand made upon the reeeipter was sufficient to fix his liability. Webb v. Cargill, 10 N. H. Rep. 199; Smith v. Brown, 14 N. H. Rep. 67; Towle v. Robinson, 15 N. H. Rep. 408. It made no difference that the defendant afterwards showed the plaintiff the property, and told him to take it. Scott v. Whittemore, 7 Foster’s Rep. 309. The liability attached would not be relieved by that act. The present case seems to illustrate the mischiefs of the law, as it has been lately held, since there is here nothing tending to show the existence of any debts of the partnership, or any lien of the partner. Judgment for the defendant.