The attachment statute is borrowed from New York. It will be found in the Revised Statutes of 1838 and 1846 and the Compiled Laws of 1857. The section of which Howell (section 8015) is an amendment remained unchanged from the time of its adoption until 1861. It is section 19, c. 1, tit. 4, pt. 3, p. 512, Rev. St. 1838. The same is found in Rev. St. 1846, § 30, p. 517, and Comp. Laws 1857, § 4771. It reads as follows, viz.: "When two or more persons are jointly indebted as joint obligors, partners, or otherwise, the attachment may be issued against the separate or joint estates or property of such joint debtors or any of them, and the same proceedings shall be had as hereinbefore prescribed." It goes without saying that under this. act, where all of the joint debtors are shown to have participated in the statutory act, or where it appears that each has entertained the fraudulent intent, the writ should issue against all; and it is as plain that in such case the writ could be issued against the separate or joint estates of the debtors. So far it lays down a plain, consistent, and just rule. Shall we go further, and say that it was meant that the writ would be as far-reaching in cases of joint debtors, who are not partners, where one was innocent of wrong? That would probably not be claimed by any one. As to partners, the same claim might be made as is made here, viz., that in dealing with the partnership property the act of one is the act of all, and that the consequences are the same to all. But this act had received a construction before it became a law in Michigan. In the case of Cyrus Chipman, an absconding debtor (14 Johns. [N. Y.] 217), decided in 1817, it was held that the attachment might issue against the property of one of several partners who absconds, for a debt due by the firm, although his copartners are resident within the state, and subject to process. This is not conclusive of the question here, and is cited only to show that counsel in that case did not resort to the remedy by attachment against all of the partners. Two years later the same court held that an attachment might issue against the separate property of an-absconding debtor upon a debt due from his copartnership. Here, again, the writ appears not to have been sought against the partners who remained. But the case went further, and held that the partnership property could not be seized; and the reason was that the other partner had a right to retain it to pay the partnership debts. Ex parte Smith, 16 Johns. (N. Y.) 102. It may still be said that in neither of these cases were all of the partners sued in attachment, and therefore there yet remains doubt if the right contended for does not exist under this statute, and it is probable that such doubts led to the amendment of 1861, which reads as follows: "When two or more persons are jointly indebted as joint obligors, partners, or otherwise, and an affidavit shall be made, as provided in section two of this chapter, so as to bring one or more of such joint debtors within its provisions, and amenable to the process of attachment, then the writ of attachment shall issue. against the property and effects of such as are so brought within the

provisions of said section; and the officers shall be also directed in said writ to summon all such joint debtors as may be named in the affidavit attached thereto, to answer to the said action as in other cases of attachment." Before discussing the statute, let us review the situation. Under the previous statute, attachment lay against all joint debtors, whether partners or not, where it could be shown as matter of fact that all participated in the act constituting a cause. It was also plain that, where one joint debtor only committed such act, his property only was subject to the writ, unless there was a partnership. There was, then, no necessity for legislation to reach either of these cases, for joint debtors, where not partners, were fully protected where innocent of wrong, and the creditors had his remedy against both where both participated, and against the offender where only one was guilty. In this condition of affairs, the Legislature passed section 8015, thereby giving immunity from attachment to joint debtors, including partners, who were not themselves participants in the wrongful act. Now, by a construction of this act, it is sought to say, that partners are not within its terms, because the act of one is the act of all, and that, as a matter of law, they are, therefore, all participants in the fraudulent act. If that is so, the statute seems to have no office to perform. It has relieved nobody. Joint debtors, not partners, could not be attacked by attachment before unless guilty. But there may have been a doubt about partners. That doubt seems to have caused the enactment of a law whose only object must have been to reach and relieve the very class of cases which the construction contended for seeks to exclude from its protection.

1

As said at the outset, attachment is a harsh and extraordinary remedy. The law may well restrict its use, and deny it as against all honest persons, though they have the misfortune to be connected in business as partners with dishonest persons. Such persons have legal obligations to discharge in relation to the partnership affairs. They must see that obligations are discharged, and the law presumes that they will faithfully do so. No very good reason suggests itself why the private fortune of an honest partner should be seized because his partner has been detected in a fraudulent act in connection with partnership affairs. It is common knowledge that few men or firms can survive an attack by attachment. It is the almost certain precursor of insolvency, as in former days it was of bankruptcy, and we should hesitate before broadening the scope of the act in question. A case quite similar to the present was before the court, viz., Edwards v. Hughes, 20 Mich. 290. Mr. Justice Cooley wrote the opinion, and seems to have taken a similar view of these statutes to that expressed above. It is true that the facts in that case may permit it to be distinguished from the present, but the language used is broad, and it is hardly possible that the court could have overlooked the contingency of such cases as this. Since this decision we think the bar have understood that the liability was limited to such partners as person

ally participated in the fraudulent act. See Tiffany's Justice Guide, p. 60, note 1, where this doctrine is laid down; Shinn, Pl. & Pr. § 307. See, also, People v. Circuit Judge, 41 Mich. 326, 2 N. W. 26, where a writ issued against nonresident partners only. We think the learned circuit judge correct in his conclusions, and that his order dissolving the attachment should be affirmed, with costs.1

II. CREDITORS OF THE PARTNERS.

HEYDON v. HEYDON.

(Court of King's Bench, 1693. 1 Salk. 393.)

Coleman and Heydon were copartners, and a judgment was against Coleman, and all the goods of both Coleman and Heydon were taken in execution. And it was held by HOLT, C. J., and the court, that the sheriff must seize all, because the moieties are undivided; for if he seize but a moiety, and sell that, the other will have a right to a moiety of that moiety; but he must seize the whole, and sell a moiety thereof undivided, and the vendee will be a tenant in common with the other partner.

TAYLOR v. FIELDS.

See ante, p. 210, for a report of the case.

PARKER v. PISTOR.

(Court of Common Pleas, 1802. 3 Bos. & P. 288.)

This was a rule calling on the plaintiff to show cause why the sheriffs of London should not have time to return a writ of fieri facias to the first day of next term.

The defendant was one of two partners, and the application was made on the part of several creditors of the partnership, and the ob

1 The dissenting opinion of Montgomery, J., in which McGrath, C. J., concurred, is omitted.

Whether, in a suit against the firm, the property of the partnership can be attached because of the misconduct of one partner, will depend upon whether his act was within or without the scope of the partnership business. In Staats v. Bristow, 73 N. Y. 264, the nonresidence of one partner, and in Evans v. Virgin, 69 Wis. 153, 33 N. W. 569, the fraudulent transfer by one partner of his separate property, was held not to justify an attachment of the firm property, but only the misconducting partner's interest in such property. But in Winner v. Kuehn, 97 Wis. 394, 72 N. W. 227, where the misconducting partner was the general manager, his misconduct was held sufficient to justify an attachment.

ject was to prevent the partnership goods from being sold until an account could be taken of the several claims upon this property.

Best, Serjt., who obtained the rule, observed that the sheriff was only entitled to take possession of an undivided, not of a separate, moiety of the partnership goods; that he could only hold that moiety in the same manner as the defendant himself had done; and that, as the defendant was not entitled to sell the partnership goods without the consent of his partner, the sheriff ought not to be obliged to do so by a writ of venditioni exponas. He mentioned a case in the Court of King's Bench, where a similar application had been made, which stood over several times, and the rule was at last made absolute by consent; the plaintiff having been driven to give that consent in consequence of Lord Kenyon saying that the court would enlarge the rule from time to time until the parties did consent. He also referred to Eddie v. Davison, Doug. 650, and Taylor v. Field, 4 Ves. Jr. 396, where it was holden that the joint property of an insolvent partner ́ship, taken in execution for a separate debt, could not be retained against the joint creditors.

Lens, Serjt., contra, insisted that this was merely the common case of partnership goods taken in execution; that, if the defendant had any interest whatever, the sheriff was bound to take the partnership goods and sell them; if not, he ought to return nulla bona. He observed that in Taylor v. Field it was admitted that the above rule would prevail at law, and in Pope v. Haman, Comb. 217, this distinction is pointed at; Holt, C. J., saying: "Upon a judgment against one copartner the sheriff may take the goods of both in execution, and the other copartner hath no remedy at law otherwise than by retaking the goods if he can; for the vendee of the sheriff becomes tenant in common with the other copartners."

THE COURT were of opinion that there was no ground for their interposition; that it was a very plain case at law, and that all the difficulties were to be encountered in equity; that the safest line of conduct for the sheriff to pursue was to put some person in possession of the defendant's share as vendee, leaving him and the parties interested to contest the matter in equity, where a bill might be filed, stating that he had taken possession of the property, and praying that it might not be disposed of, until all the claims were arranged. Vide Chapman v. Koops, 3 Bos. & P. 289.

Rule discharged.

RANDALL v. JOHNSON.

(Supreme Court of Rhode Island, 1881. 13 R. I. 338.)

POTTER, J. William J. Randall and Lydia Randall, copartners by the style of William J. Randall & Co., sue Johnson, the defendant, in trespass vi et armis for breaking and entering the plaintiffs' store

and attaching certain personal property which they claim as the property of said firm. Johnson, the defendant, pleads that J. F. Comstock & Co. sued out a writ of attachment against said William J. Randall, and that he, Johnson, being a deputy sheriff, attached said property on the said writ as the property of said William, and said property was afterwards sold at public sale by order of one of the judges of this court according to the provisions of the statute,. and that the said William was notified thereof as by law provided, and was himself the highest bidder for and purchaser of a portion of them. The plaintiffs demur.

The plaintiffs, William J. Randall & Co., contend that, being partnership property, it could not be attached as the property of one of the partners, and that therefore the plea, if true, alleges no valid defense.

The weight of the authority seems to be most decidedly in favor of the right of a creditor of one partner to attach that partner's right in the goods, chattels, and tangible property of the firm for his private debt due from such partner. Story on Partnership, §§ 262, 311; 3 Kent, Com. *65, and note b; Collyer on Partnership (4th Am. Ed.) p. 738, § 822, and note. In the note to the latter work, as also in Kent, the cases are well stated. The attaching creditor can only take the interest of the partner-i. e., subject to the settlement of the partnership affairs-and, although the sheriff may and must seize the chattel, he can sell only the partner's right in it as above.

The difficulties likely to arise in such attachment are stated in many of the cases. But, on the other hand, if the law were otherwise, a debtor might prevent attachment of his property for a debt due from himself by putting it into a partnership.

In the case of Phillips v. Cook, 24 Wend. (N. Y.) 389, the subject was considered by Judge Cowen, who delivered the opinion of the court, and the cases reviewed at great length. It was there held that the sheriff might seize the whole of the particular article, and sell the interest of the debtor in it, and deliver it to the purchaser, who then became a tenant in common with the other partner and took subject to a settlement of partnership accounts and to the equitable claims of the creditors of the firm; and this, we think, is in accordance with the other decisions on the subject. See, also, opinion of Nelson, C. J., in Birdseye v. Ray, 4 Hill (N. Y.) 158, 161; and as to the disposal of the purchase money and the remedy of the other partner, see Phillips v. Cook, 24 Wend. (N. Y.) 389, and Doner v. Stauffer, 1 Pen. & W. (Pa.) 198, 21 Am. Dec. 370.

Although, if the officer sells the whole, it will be as to the co-tenant a conversion (Ladd v. Hill, 4 Vt. 164; White v. Morton, 22 Vt. 15, 52 Am. Dec. 75; Bradley v. Arnold, 16 Vt. 382; Walker v. Fitts, 24 Pick. [Mass.] 191; Waddell v. Cook, 2 Hill [N. Y.] 47, 37 Am. Dec. 372; Drake on Attachment, § 248), yet it is no conversion as to said William J. Randall. Whether his interest or the whole is sold,