#### David C. Berry, plaintiff and respondent, *vs.*John Kelly, sheriff, &c. Morris Ketchum *et al.*defendants and appellants. The same, plaintiff and appellant, *vs.*The same, defendants and respondents.

1. Upon an execution issued on a judgment against one of several partners, in form for his individual debt, the sheriff can only levy upon and sell the judgment debtor’s interest in the partnership goods.

2. Under such an execution the sheriff has the right to take the goods levied on into his own possession, and upon a sale of only the interest of the judgment debtor therein, to deliver them to the purchaser. But if he undertakes to sell the entire property in the goods, he becomes a trespasser *ab initio,*and is liable as such in an action by the other partners against whom no execution is issued. In such an action, the damages which may he recovered cqnsist of the value of the plaintiff’s undivided share in the goods sold, irrespective of the question of the solvency of the partnership, and without regard to the state of the partnership accounts.

3. Where an attachment, issued against three persons, on the ground of their being non-residents, who were sued as partners, under which the sheriff levied upon and attached certain goods of the firm which they constituted, was subsequently vacated as to one of the partners, on the ground that at the time it was issued he was a resident of this state; *Sold,*that the mere levy of the attachment did not operate, *per so,'as*an appropriation of the entire property in the goods to the payment of the plaintiff’s debt; and that the sheriff, under an execution issued in such suit, could not sell the interest of the resident debtor, hut only the right, title and interest of the non-resident defendants.

á. *Meld, also,*that as the process under which the sheriff acted only authorized him to sell the interest of the parties upon whose property alone, with their right of appropriation of the goods attached, the attachment was binding, he exceeded his authority by a sale of the entire property, and became a trespasser *ab initio,*as much as he would he by selling the entire property in goods belonging to a firm, on an execution issued upon a Judgment against one partner for his individual debt.

*1076. *Held, further,*that the plaintiffs in the attachment suit, by indemnifying the sheriff, and directing him to take, remove and sell all the goods, were co-trespassers with the sheriff.

6. The right of a purchaser of the property of a firm, subject to an attachment on the shares of two of the partners, is subordinate to that of the sheriff under an execution issued in the attachment suit. He has, therefore, no right to control such officer in the exercise of his superior rights.

7. As to the attached shares, he has no greater rights than the partners against whom the attachment issued would have had. The rights of such partners would be, in case the proceeds of the sale were mbre than enough to satisfy the execution, to have the excess paid to them, and, in case of abuse of process, to hold the sheriff liable in damages for such abuse. Selling goods in many parcels is not necessarily an abuse of process.

8. Whatever the state of the partnership accounts may be, or the condition of a firm as to its solvency, each partner has a property and interest in the partnership assets coequal with his interest in the firm, and retains such property and interest until divested by due process of law executed adversely to him, 'or by some voluntary act of his copartners within the scope of the partnership duties and powers.

(Before Monbm, Garvin and Jones, JJ.)

Heard February 16, 1866;

decided-, 1866.

This was an action to recover damages for the sale of certain goods, the property of the plaintiff under an execution. The defendants were the sheriff, (Kelly,) who sold the goods under an execution, and the plaintiffs in the execution, (Ketch-um and others.)

The action was tried in December, 1863, before Justice Bobertson, without a jury, who found the following facts, viz:

That, on the 5th day of February, 1861, and at the several times hereinafter mentioned, George Carroll, Edwin B. Carroll, and Benjamin F. Mead, were partners, doing business at the city of New York, and also at Louisville, in the state of Kentucky, under the firm name of Carroll *&*Mead. At that time, and at the time of the proceedings hereinafter mentioned, the said George Carroll and Benjamin F. Mead were nonresidents of this state, and the said Edwin B. Carroll was a resident of this state. The said firm owned a stock of merchandise, of the.value of $73,903.94, a part of which stock was contained in premises No. 392 Broadway, in the *108city of New York, occupied by the firm for the transaction of business. On the said 5th day of February, 1861, the said Edwin E. Carroll and Benjamin F. Mead were absent from this state; and so much of the said merchandise as was in the city of New York was in the custody and charge of the said George Carroll. On the day last mentioned, the said firm was indebted to the firm of Ketchum, Son & Co., (consisting of Morris Ketchnm, Thomas Belknap, Jr., and Franklin M. Ketchum, three of the defendants in this cause,) in the sum of $1,640.16, which indebtedness arose upon a promissory note of said firm of Carroll & Mead for the sum last mentioned, bearing date the first day of May, eighteen hundred and sixty, and payable nine months after the date thereof. On the said 5th day of February, 1861, the said Ketchum,' Son & Co., by the due personal service on said George Carroll, within the city of New York, of a summons and complaint, wherein all the members of the firm of Carroll & Mead were included as defendants, commenced an action in this court to recover the amount of said note. That the said Edwin E. Carroll appeared and answered in .said action before the recovery of judgment therein, but the said Benjamin F. Mead did not appear in said action, nor was the process therein served upon him. At the several times herein mentioned, the said firm of Carroll & Mead was insolvent and unable to pay its debts. After- the aforesaid service of process in the said action, on the said George Carroll, and on the 6th day of February, 1861, the members of the said firm of Ketchum, Son & Co. procured to be issued out of this court in their said action a warrant of attachment to the defendant John Kelly, sheriff, against the property of the said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, which warrant was issued and procured upon the ground that the said Carrolls and the said Mead were non-residents of this state.

Said warrant of attachment recited that the same was issued in an action in which process had been served within the city of New York on the said George Carroll, and that-the said action was brought and was pending against the said *109George Carroll, Edwin R. Carroll, and Benjamin E. Mead, as joint debtors, to recover the amount of the indebtedness mentioned in the said warrant.

On March 16, 1861, the said attachment was duly vacated and set aside as against the defendant Edwin R. Carroll, on his motion for that purpose, solely on the ground that at the time of the issuing of the said attachment, he, the said Edwin R. Carroll, was a resident of this state. Afterwards, and on the same 16th day of March, 1861, judgment was rendered in said actions in which said attachment was issued, in favor of the plaintiffs therein, against all the defendants therein, as joint debtors, for the sum of $1,652.75, and thereupon execution was issued upon the said judgment to the said sheriff. On the 6th day of February, 1861, before the said attachment was vacated as against said Edwin R. Carroll, and before the recovery of said judgment, the sheriff had levied upon and attached, under and by virtue of said attachment, certain goods of the said firm of Carroll *&*Mead, being a part of the stock of merchandise mentioned in the third finding, and a schedule of which goods is annexed to the complaint, of which the value on the day last mentioned was the sum of $3,088.44. After such levy, the said George Carroll, on February 7th, 1861, executed in the name of the firm of Carroll & Mead, and delivered to the plaintiff in this cause, a written instrument, bearing date on that day, purporting that the said. Carroll *&*Mead sold to the plaintiff in this cause, the goods ■and stock in trade of said Carroll and Mead, for the price of $73,903.94, which was the value thereof on that day, and had received in payment therefor promissory notes of the plaintiff, amounting in all to the sum last mentioned, (dated February 7th, 1861,) twelve of which, for two thousand dollars each, were made payable twelve months after date ; ten others, each for the like sum, were payable fifteen months after date; thirteen others, each for the like sum, were payable eighteen months after date ; one for $975.46, and another for $2,928.48, were payable fifteen months after date. The notes last herein above described, were in fact made and delivered *110by the plaintiff, and received by said George Carroll, as one of the firm of Carroll & Mead, and by him transferred on behalf of such firm to various creditors of Carroll *&*Mead (other than the said firm of Ketchum, Son & Co.,) on account of the demands of such creditors respectively against said Carroll & Mead. The said bill of sale or transfer to the plaintiff, was made with knowledge by the plaintiff of the existence of said warrant of attachment, and the said George Carroll, in the name of the said firm of Carroll &. Mead, agreed with said plaintiff to contest said attachment, and to deduct from the said notes received by him, such amount, (if any,) as the New York stock might be liable for under said attachment. The said George Carroll informed the said Edwin R. Carroll and Benjamin F. Mead of the said bill of sale and agreement by letter, and the said Edwin R. Carroll, by a. communication in writing, dated March 18, 1861, and the said Benjamin F. Mead, by a similar communication, dated March 13, 1861, severally addressed to and received by the said George Carroll, approved of and ratified the said bill of sale and agreement, which information was given within a reasonable time after the making of such bill of sale, and such communications were sent and received in a reasonable time after such communication was given. The said bill of sale was made with the intent and for the purpose of enabling the said George Carroll to obtain the notes which were the proceeds thereof, and appropriate the same among the creditors of said firm, according to his discretion. Upon the recovery of judgment as aforesaid, in the said action, the.plaintiffs therein, Ketchum, Son *&*Co., issued an execution on.such judgment to the defendant Kelly, as sheriff as aforesaid, against the joint property of the defendants therein, and the several property of the defendants, Edwin R. Carroll and George Carroll. Under said execution, the said sheriff proceeded to sell- the whole of the said goods so attached by him as aforesaid, the value whereof, .at the time of such attachment and of such sale, was the sum of $3088.44, the said Ketchum, Son & Co. indemnifying him for making such sale, and without regard to *111any claim of the' plaintiff, next hereinafter mentioned, to an interest in the said goods, and that such sale was of the goods absolutely, without specifying the same to be of the right, title and interest of George Carroll and Benjamin F. Mead therein. Before such sale was actually made, the plaintiff notified the said sheriff that he, the plaintiff, claimed to be the .owner of the said goods so attached. Notwithstanding the said notice, the said sheriff proceeded to make such sale, and sold said goods so attached absolutely, in different parcels, to many different persons, and delivered the said goods to the respective purchasers thereof, and that it was impossible for the plaintiffs to follow the said goods. The gross proceeds of the sale were $1767.42. No evidence was given of the presence of any of the firm of Ketchum, Son & Co. at such sale, or any direction by them to the said sheriff to sell the goods in parcels.

The said justice’s conclusions of law, were :

1. That the defendants,' Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jr., were entitled to judgment, dismissing the complaint as against them, with costs.

2. That by the making and delivery of the said bill of sale to the plaintiff, and the making and delivery by him of his said notes, and the subsequent assent of said Edwin E. Carroll and Benjamin F. Mead, the plaintiff in this cause acquired a title as against the defendants *“*to an undivided third of the goods attached as aforesaid theretofore belonging to said Edwin E. Carroll, subject, however, to a lien thereon under or by virtue of the said warrant of attachment, if any, to the extent of the amount, if any, which the said George Carroll or Benjamin F. Mead had, either personally or by agent, prior to issuing of the said warrant, individually paid beyond two thirds, (being their proportionate part,) of the debts of their said firm, which had been paid before that time.”

3. That the plaintiff was entitled to recover of the defendant, John Kelly, a sum equal to one third of what the said attached goods were worth on February 7, 1861, being the sum of $1029.48 ; and in addition to the said last mentioned sum, a further sum equal to two thirds of the excess (if any) above *112the value of said goods when sold to the plaintiff, being $73,903.94 of any sums paid by said Edwin E. Carroll before February '6, 4861, individually, on account of debts of his said firm to the extent of $2058.97, being two thirds of the value of such attached goods, subject, however, to the deduction of an amount equal to the excess, if any, above two thirds (being the share of the said George Carroll and Benjamin F. Mead) of any sums paid before February 6, 1861, by the said George Carroll and Benjamin F. Mead, individually, on account of the debts of their said firm.

4. That in order to fix the amount, if any, which the plaintiff was entitled to recover, and in order to ascertain and inform the court of the amount of the respective interests, liens, or shares of the said George Carroll, Edwin B.‘ Carroll, and Benjamin F. Mead, of, upon, and in said attached goods on February 6, 1861, it was necessary that an account should be taken of all sums paid by said George Carroll, Edwin E. Carroll, and Benjamin F. Mead, respectively, prior to February 6, 1861, out of their respective individual estates on account of any debts' of their said firm, and that a reference be had for the purpose of taking such an account.

5. That if upon taking such an account, it should appear that prior to February 6,1861, the said Edwin E. Carroll paid individually, on account of any debts of his said firm, any sum exceeding $73,903.94, being the value of said goods at the time of the sale thereof to the plaintiff, so much of such excess as should exceed one third of all debts of said firm paid by the partners therein indidvidually prior to February 6,1861, should be added to the said sum of $1029.48, so as to determine the amount of such recovery of the plaintiff in this cause ; but if on such accounting it should appear that said Mead and George Carroll had, together, individually, prior to said February 6, 1861, paid more than two thirds of all the debts of said firm which had been paid by the said general partners therein out of their separate estates prior to that day, then such excess above such two thirds should be deducted from the said sum *113of $1029.48, and only the residue of such sum should be and constitute the plaintiff’s recovery herein.

6. That neither the said plaintiff.nor the said Kelly was entitled to recover any costs in this cause up to the time of such reference, and that the costs of such reference should abide the event thereof, that is to say, if it should appear on such reference that the amount which the plaintiff was entitled to recover exceeded the said sum of $1029.48, the plaintiff would’ be entitled to recover the costs of such reference; otherwise, the defendant, Kelly, would be entitled to recover the costs of such reference. The justice accordingly adjudged as follows :

*First.*That the complaint herein .be dismissed- against the defendants, Morris Ketchum, Franklin M. Ketchum, and Thomas Belknap, jr. and that they recover against the plaintiff their costs, to be adjusted.

*Second.*That in case it should appear upon the report of the referee hereinafter mentioned, that any sum of money is due, or ought to be paid by the defendant Kelly to the plaintiff, upon taking the account hereinafter mentioned, then that the plaintiff recover against said defendant such amount.

*Third.*That if it should appear, by such report, that the amount so found due to said plaintiff exceeds the sum of $1029.48, then that the plaintiff recover his costs on said reference to be adjusted.

*Fourth.*That if it should appear, by such report, that nó sum of money was due by the defendant Kelly to the plaintiff, the said defendant recover against the plaintiff his costs of said reference to be adjusted.

Fifth.' That it be referred to the Hon. Murray Hoffman, to ascertain and report the amount paid prior, to the 6th of February, 1861, by George Carroll, Edwin B. Carroll, and Benjamin F. Mead, members of the firm of Carroll & Mead, and each of them jointly and . separately, on account of debts due by said firm to any person or persons; and in case he should find that the amount so paid by the said George Carroll and Benjamin F. Mead exceeds two thirds of the whole of the amount so paid, then to ascertain and report the amopnt of *114such excess ; and also the difference between such amount and the sum of one thousand and twenty-nine dollars and forty-eight cents ; and in case he should report that the amount so paid by the said George Carroll and Benjamin F. Mead does not exceed such two thirds, then to report that there is due to the plaintiff from the defendant Kelly, such last mentioned sum of $1029.48 : or, if he finds that it does, then to report that there is due to the plaintiff from the defendant only the difference so found by him between such last mentioned and such excess ; and in case he should find that the sums so paid before the 6 th of February, 1861, by the said Edwin R. Carroll, exceed one third of the whole amount so paid on account of such liabilities, then to ascertain and report the amount of such excess ; and if such excess exceeds the sum of $70,000, then to ascertain and report the amount of such last excess ; and in case it equal or fall short of the sum of $2058.97, then to report that such sum is also due from the defendant Kelly to the plaintiff, and to ascertain and report the aggregate of such sum, and of the sum of $1029.48, and to report that the same is due to the plaintiff; but in case he should find that there was no excess of payment by Edwin R. Carroll beyond one third of the debts so paid by all the members of said firm, or that the same does not exceed the sum of $70,000, and that the amount paid by the said George Carroll and Benjamin F. Mead, beyond two thirds of all the debts so paid, equalled or exceeded the sum of $1029.48, then to report that there is nothing due from the defendant Kelly to the plaintiff.

It was stipulated, agreed and admitted, as matter of fact, that on or prior to the 6th day of February, 1861, neither Edwin R. Carroll had, nor had George Carroll and Benjamin F. Mead, together or, severally, paid any sums whatever on account of partnership debts of the firm of Carroll & Mead, and that all of such debts which had been paid before that time had been paid out of the partnership property of Carroll *&*Mead, and that neither of said partners, jointly or severally, had paid more than his .several or their joint share of any partnership debt or debts; and that such stipulation should *115stand as a substitue for apd have the same force and effect as a report of a referee upon the matters directed to be referred by the above order and decision of the court.

The decision of the said justice, and the stipulation above mentioned, having been filed, judgment was entered thereon, by which it was ordered and adjudged that as against the defendants, Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. the complaint of the plaintiff be, and it was thereby, dismissed, and that the said Morris Ketchum, Franklin M. Ketchum and Thomas Belknap, jun. do recover against the plaintiff the sum of $110.69 for their costs in this action. And it was further ordered and adjudged that there was due to the plaintiff, by reason of the matters stated in said findings and stipulation, from the defendant, John Kelly, the sum of $1029.48, with interest thereon from the 7th day of February, 1861, making in all the sum of $1185.61, and that the plaintiff do recover from the said defendant, John Kelly, the last mentioned sum, without costs.

The defendant, John Kelly, appealed to the general term, from so much of said judgment as adjudged that there was due to the plaintiff the sum of $1029.48, with interest thereon, and from so much of said judgment as adjudged that the plaintiff recover of the said defendant the sum in said judgment mentioned. . The plaintiff appealed from the judgment, and from every part thereof, *“*and particularly from the part of said judgment which adjudged that there was due to the plaintiff from the defendant, John Kelly, only the sum of $1029.44, and interest, instead of the sum of $3088.32, and interest, as claimed in the complaint; and from that part of said judgment which dismissed the complaint of the plaintiff as against the defendants, Morris Ketchum, Franklin M." Ketchum and Thomas Belknap, jun. and adjudged to them the sum of $110.69 costs, and from the judgment which does not, but should, give costs to the plaintiff against the defendants.”

*Aug. F. Smith,*for the plaintiff.

I. After the setting aside of the attachment against E. R. *116Carroll, the sheriff held, under the attachment, only the right, title and interest of Mead and Greorge Carroll. An attachment is allowed against individuals, and binds only their individual interests, or the joint interests of those against whom it is issued. A statute was necessary to enable a plaintiff to take 'joint property, by execution under a judgment against several, when all were not served. (2 *R. S.*377, § 1. *R. L.*521, § 13.)

II. The firm, at the time of the sale, had an unquestionable right to sell the partnership property, subject to the attachment.

1. The fact of the attachment worked no disability in the partnership to dispose of their property, beyond that'right and interest which the attachment could reach. If the attachmen t had any such power, it has all the virtues of a bankrupt law without its inconveniences. If it had any such power, it must be derived from some positive provision of law. Let that provision be produced, or.let us see an authority for such extraordinary virtue in this process. 2. The conclusion is logical, and not to be resisted, that the plaintiff, by purchase, became the legal owner of-the goods in question. This legal title was incumbered by nothing but a lien upon such interests as the non-resident partners had in the surplus (if any) that should remain after the payment of the partnership debts. As the. firm was insolvent, this lien was of no value. 3. The sheriff may have a right to the joint possession of the property with the plaintiff, as a tenant in common, to the end that he should sell the right, title and interest of the non-residents, and on the sale he might give possession to'the purchaser, in order that he, by a bill in' equity, might ascertain the value of his interest, and so realize it. But this fact by no means affects the rights of the partnership to sell, nor of the plaintiff to buy the property ; nor does it take from the' plaintiff the right to have the' property and its proceeds, subject only to the lien before named, and that lien of no value.

III. Upon authority there is *np*doubt that either trespass or trover would lie against the sheriff, under the circumstances *117of this case. *(Walsh v. Adams,*3 *Denio,*125. *Waddell*v. *Cook,*2 *Hill,*47. *Phillips*v. *Cook,*24 *Wend.*389. *Hull*v. *Carnley,*1 Kern. 508.) These cases are cited and approved by the Court of Appeals, in *Hull*v. *Carnley,*(1 *Kern.*508.) *(See Melville*v. *Brown,*15 *Mass,*82.)

IY. This action is not one of trespass or trover, neither of which would afford an adequate remedy, (3 *Denio,*125,) but . is a special action to recover the damages which the plaintiff has suffered. In it the plaintiff is entitled to his actual loss, being the value of the goods sold since the separate interests of the partners were valueless, as the firm was insolvent. *(Manning*v. *Monaghan,*23 *N. Y. Rep.*539, 545, 547, 548, 549, 551, *op. of Comstock, J. Goulet*v. *Asseler,*22 *id.*225, 241, *op. of Comstock, J.)*

These were both cases of a sale under execution of mortgaged chattels in the possession of the mortgagor, and when the sale was made in parcels.

Y. The judgment against Kelly, the sheriff, for only one- ■ third of the value of the goods, was founded upon an idea that an equal undivided interest in partnership chattels or property is liable to be taken for the private debt of the partner—an idea that never had any foundation in justice or propriety, and' that is now obsolete. (1 *Pars, on Cont.*176,177. *Abels*v. *Westervelt,*15 *Ab.*230. *Mersereau*v. *Norton,*15 *John.*179. *Story on Part.*§ 262. *Stoutenburgh*v. *Vandenburgh,*7 *How. Pr.*229.)

YI. The fact that the attachment was" issued upon a partnership debt does not make the position of the defendants any better. They had no lien upon the partnership property, to prevent its sale, and their attachment covered only the interest of the absent partners. No equity exists in favor of a creditor to interfere in the administration of partnership property until he has acquired a lien upon the whole of such property, not merely the undivided interest of one of the partners.

1. A creditor of a. ’ partnership cannot take the partnership property upon an attachment issued upon the partnership debt against one partner. *(Matter of Smith,*16 *John.*102. *Abels**118v. *Westervelt,*15 *Abb.*230. *Stoutenburgh*v. *Vandenburgh,*7 *How. Pr.*229. *Sears*v. *Gearn, Id.*383.)

2. The same thing was true (before the statute) of an execution, founded upon a partnership debt. *(Crane*v. *French,*1 *Wend.*311.) The case of *Morley*v. *Strombom,*(3 *Bos. & Pul.*254,) merely decides that, in England, partnership property may be seized upon a distringas against one, which is precisely what may be done here upon an execution, but only the right, title and interest can be sold.

VII. As the plaintiff recovered $50 and upwards against Kelly, he was entitled to costs, of course. The court, however, gave judgment without costs. (Code, § 304, *subd.*4.)

VIII. The plaintiff was entitled to judgment not only against Kelly, but also against the other defendants. The sheriff became a trespasser by selling the whole of the' goods, and not the right, title and interest only of the non-residents. *(Waddell*v. *Cook,*2 *Hill,*47.) For this act the other defendants indemnified him. Beyond a doubt the indemnity against the illegal act made the other defendants responsible for eyery step of the defendant Kelly in the execution of his unlawful mission. ( *Wall*v. *Osborn,*12 *Wend.*39. *Davis*v. *Newkirk,*5 *Denio,*92, 94.)

The illegal act was the selling the whole property; only the damages were increased' by the sale in parcels, so that the property could not be followed.

*A. J. Vanderpoel*and *F. N. Bangs,*for the defendant Kelly.

I. The court below, in awarding damages, adopted the same rule as in an action by a solvent partner against the sheriff for selling partnership property under process for an insolvent partner’s separate debt. There is certainly no reason, in this case, for applying any more stringent rule against the sheriff; and under that rule, the recovery is as large as it ought to be, and cannot lawfully exceed one third of the value of the goods. *(Eddie*v. *Davidson, Doug.*650. *Walsh*v. *Adams,*3 *Denio,**119125.) But even that is affected by *Hull*v. Carnley, (11 *N. Y. Rep.*501,) and *Goulet*v. *Asseler,*(22 *id.*225.)

II. In support of our own appeal, however, we object to the application of this rule, even to the extent of giving nominal damages. It is derived entirely from cases between the separate creditors or vendees of an insolvent partner and the remaining solvent partners, and, so far as we can discover, is the precise opposite of the rule which has been adopted in all cases analogous to the present, viz. where the process, though several in form, is for a joint debt. *(Morley*v. *Strombom,*3 *B. & P.,*254. *Taylor*v. *Henderson,*17 *S. & R.,*453, 456. *Harper*v. *Fox,*7 *Watts & Serg.*143. *Inbusch*v. *Farwell,*1 *Black,*566.)

III. The question in this case is as to the legal effect and force of an attachment issued under the Code, against two or three joint debtors, as a provisional remedy in an action in which all three are made defendants, where the pendency of the suit and its nature appear on the face of the attachment, and where the debt is admitted or established to exist. The rule which has been applied in this case to these circumstances, when generalized from the innumerable cases which prove its existence, is this : That in an action against a person who. is in partnership with others, to recover that person’s separate debt, nothing in the partnership assets can be levied on except the debtor’s interest, which, *for the purpose of such an action,*is, his share of the surplus remaining after payment of the partnership debts, and after satisfaction of his partner’s claims and liens arising out of the partnership.

IY. As this certainly does not, - in its words, embrace the circumstances of the present case, so we submit that it does not, in its reason or spirit. 1. Partnership property is dedicated, in the first instance, by express agreement or necessary implication, to the joint benefit, including the exemption of separate property from joint liabilities. The appropriation by a separate creditor of joint property to a separate demand, under legal process, would be a violation of the agreement, and the assertion of a right which the 'debtor himself could *120not exercise. But if the agreement gave each partner the right to take enough of the joint stock, irrespective of the joint debts, to pay his private liabilities, would not a separate creditor have the same right" which the partner had ? Joint creditors would have no equity to prevent it, because their equities depend on those of the partners. *(Ex parte*Williams, 11 *Ves.*3. *Nicoll*v. Mumford, 4 *John. Ch.*522. *Greenwood*v. *Brodhead,*8 *Barb.*596. *Allen*v. *Center Valley*Co., 21 *Conn. Rep.*130. *Sage*v. *Chollar,*21 *Barb.*596.) 2. The right of the separate creditor is limited, *because*the right of his debtor is so. But in respect to the subject matter of the action brought by Ketchum, Son & Co., there being no superior equity in other creditors, and none by agreement or necessary implication in the remaining partners, no right of other creditors would be violated, and no right of property in the non-resident partners would be abused, by a voluntary application by them of the whole property to that debt. It was *theirs,*for that purpose ; it would not have been theirs, for the purpose of paying their own debts.

Y. The rule applied in this case being inapplicable, what is the *legal*force and effect of an attachment issued in the form and under the circumstances stated, irrespective of that rule? *(See Morley*v. *Strombom, ubi sup.) McKay*v. *Harrower,*27 *Barb.*463.)

According to the Code (§ 227) an attachment is a security to the creditor for such judgment as he may obtain in the action. In this case, it required the sheriff to take from the non-resident partners property enough to secure the payment of any judgment which might be rendered .in an action for a specified amount, against the three persons jointly indebted. The *instant*effect of this, on the rights of Edwin E. Carroll, was that it increased his partners’ claims and lien upon, and dominion over, the partnership property, for their individual purposes, and diminished his interest correspondingly. Edwin E. Carroll had no equity to have the burden of this debt thrown on the separate property of the non-residentsthe right was on the other side ; the whole partnership property *121stood pledged as an indemnity to his co-partners against their individual estate being first resorted to.

VI. The right of the non-resident partners (one of whom was. in actual possession of the goods) to .appropriate the whole stock to the payment of the debt in question, in their own exoneration, coupled with the possession of the goods, and their own obligation to pay the debt, constituted a paramount property right, and subordinated all other rights and interests. This property right was the subject of attachment, the whole goods to which it belonged were affected by it, and being capable of manual delivery, nothing was required to execute the process, beyond taking possession. *(Code,*§ 232. *Saul*v. *Kruger,*9 *How. Pr.*569.) The rights and equities of the non-resident partners as against Edwin R. Carroll, were a part of the remedy and resort of creditors, to be administered for the satisfaction of creditors.

VII. The case of *Smith,*(16 *John.*102,) quoted in the opinion delivered below, arose under an entirely different system of remedies from that now in question. It was discussed and reprobated in *Robbins*v. *Cooper,*(6 *John. Ch.*186.)

VIII. The attachment was executed before any sale to the plaintiff took place, and the sale was with express notice of the attachment. Of course, if Edwin R. Carroll could not thrust the whole burden of the attachment upon his partners, the plaintiff could not. And if the property right of those partners in the goods had been lawfully seized, Edwin R. Carroll could not, nor could they for him, convey the goods to the plaintiff, free from that right which by the attachment had passed to the sheriff.

IX. Treating this as an action for an accounting, in equity, it is sufficiently answered by the third point of the opinion of the chief justice. The sheriff held the goods and their proceeds by at least as good a title as the non-resident partner, from whose actual possession the goods were taken. The plaintiff, in respect to those goods, could not have taken them from the non-resident partners, nor required the application of them to some other debt in preference to that which was *122due to Ketchum, Son *&*Co. It was sufficient for the sheriff to show that he intended to execute the trusts upon which the non-resident partner held them, to wit, the payment of a partnership debt.

X. The plaintiff’s idea, that the sheriff is'bound to respond for the whole value of the goods, arid not for Edwin Carroll's alleged share alone, seems to depend upon the view that it is universally true that a partner’s interest in'the joint property is only his proportion of what remains after payment of joint debts. That idea is derived from cases between" insolvent partners and their separate creditors, and is limited to such cases. The elements of a man’s interest in any thing are, his control over it, and the extent of benefit he may derive from such control. The control of a partner, as such, as far as he has any, extends to the whole of every item of the joint stock, and he derives a personal advantage, in the way of profits gained, or losses averted, by exercising this control. As between himself and partnership creditors and dealers, he has entire dominion. If it were not so, *who*would own the property of an insolvent house ? As neither partner would have any interest, all together would have none. The fact is overlooked, that the attachment dissolved the partnership as to the goods attached. (*Walsh*v. *Adams,*3 *Denio,*125.)

XI. If the attachment did not bind the goods, the execution did, because the sale of Edwin Carroll’s share was fraudulent and void as to creditors, and the court erred in deciding otherwise.

For the respondents in the plaintiff’s appeal, viz. Morris Ketchum, F. M. Ketchum and Thomas Belknap, Jun., it is claimed and submitted that they are entitled to the benefit of the points urged on behalf of the defendant Kelly.

The sole ground upon which the defendant Kelly was held liable being the wrongful method of making the sale, and there being no evidence that these respondents directed, advised or participated in, that method, the judgment, as to them, was right, and should be affirmed.

*123By the Court,

Jones, J.

It is well settled that upon an execution, issued upon a judgment, recovered against one partner, for his individual debt, the sheriff can only levy on and sell the judgment debtor’s interest in the partnership goods.

It is also well settled that, under such execution, the sheriff has the right and power to take the goods levied on into his own possession, and upon a sale thereof, provided he sells only the interest of the judgment debtor, to deliver them to the purchaser ; but it is decided that, if he undertakes to sell the entire property in the goods, he becomes a trespasser *ab*initio, and is liable in an action of trespass at the suit of the partner against whom the execution is not issued; and that in such action the damages recoverable are the value of the plaintiff’s undivided share in the goods sold, irrespective of the question whether the partnership was solvent or not solvent, and without regard to the state of the partnership accounts. (*Waddell*v. *Cook, 2 Hill,*47. *Walsh*v. *Adams,*3 *Denio,*125.)

These being decisions of the Supreme Court, as it was constituted prior to the judiciary act of 1847, we are bound to follow them, unless they have been reversed by some court of a higher authority than the court that pronounced them.

It is suggested that these cases have been overruled, or, at least, their doctrine doubted, by the cases of *Hull*v. *Carnley,*(11 *N. Y. Rep.*501,) and *Goulet*v. *Assell, (22 id.*225.)

In my opinion, there is nothing in the Court of Appeals cases that impairs the force of the Supreme Court cases. They are two different classes of cases, and the distinction between them is so well pointed out in *Hull*v. *Carnley*(11 *N. Y. Rep.*508, 509,) that it is needless here to enlarge on it.

Under the authority of these Supreme Court cases the judgment, so far as it is attacked by the defendant Kelly, is correct, unless the attachment bound the partnership to a greater extent than the levy of an execution, issued upon a judgment against two of'the partners for their individual debt, would bind it.

I do not understand the defendant’s counsel to claim that *124the sheriff, under the attachment, was authorized to attach the entire property in the goods in question. There is no warrant in the law for such a claim. He claims that" the partners, against whose property the attachment issued, had, as such partners, a right to appropriate the goods attached to the payment of the partnership debt, for the collection of which the attachment issued, and that this right was subject to the attachment in question, and was attached. Conceding this to be so, for a moment, still the sheriff, on a sale, could only sell what he attached, (the execution not covering any thing more,) that is, the right and interest of the partners against whom the execution issued, in the goods, together with their right of appropriation. If he undertook to sell any thing more he became a trespasser as to the partners against "whose property there was no attachment—a trespasser *ab initio.*

It cannot be contended that the mere levy of the attachment operates as an appropriation of the entire property in the goods to the payment of the debt, for that would be to take on a legal process issued against the property of two, the property of a third person.

If the firm was perfectly solvent, there can be no question but that the doctrine that the levy of an attachment, for a partnership debt, against the property of two members of a firm, upon sundry of the partnership goods, operated as the appropriation of the entire property to the payment of the debt, would be taking the property of the other members upon process not running against them.

If it be alleged that, by reason of the insolvency of the firm, the partners against whom the attachment was not issued had no property or interest in the goods, then, for the same reason, the partners against whom the attachment issued had no property or interest in the goods. If there was no property ox-interest in any of the partners, then the only pereons in whom such property or interest could be, would be the creditors at lax-ge. The result of this would be that no attachment or execution could be levied on property which an insolvent firm owned at the time of the insolvency, nor could such insolvent *125firm make an assignment for benefit of creditors. A proposition leading to this result cannot be seriously urged.

It may be said that if the two partners, against whose property the attachment issued, had paid, out of their individual funds, enough partnership debts to entitle them, on an accounting,- to have the goods adjudged to belong to them exclusively, then the attachment bound the entire property. The answer is that, on the same principle, an execution issued on a judgment against one partner, for his individual debt, would; in a like case, (there being no outstanding partnership debts,) cover the entire property, and a sale thereof would be authorized; yet the court, in the above cited Supreme Court cases, in holding that the plaintiff was entitled to recover the value of his undivided share, without regard to the state of the partnership account, necessarily held that, even in such case, the execution would not cover the entire property, and that, consequently, a sale thereof was unjustified. .

I think. it may be safely laid down, that whatever the state of the partnership accounts may be, whatever may be the state of the firm as to solvency, each partner, has a property and interest in the partnership assets, co-equal to his share in the firm, and retains such property- and interest until it is divested, by due process of law, running against him, or by some, voluntarily act of his copartners, done within the scope of the partnership.

For these reasons I have come to the conclusion that the levy of the attachment in question did not *per se*operate as an appropriation of the entire property in the goods, to the payment of the debt for which it was issued.

Not so operating, their assuming such right of appropriation to be attachable, and to .have been attached, the sheriff was bound to keep the right, and to sell it under the execution.

The process under which the sheriff acted only authorized him to sell the interest of the parties, against whose property the attachment was issued, in the goods attached, with their right of appropriation. Having sold the entire property, he exceeded his authority, and, by reason of such excess, became *126liable, as a trespasser *ab initio,*to the same extent, and in the same manner, as he becomes liable by an excess of authority in selling the entire property in goods belonging to a firm, on an execution issued on a judgment against one partner for his individual debt.

I have proceeded thus far, on the assumption that such right of appropriation was attachable. But I deny that it is attachable. It is not property, in any sense of the word. It is a mere right incident upon the relation of partnership, and grows out of the principle that each partner is the agent of the other in transacting the business of the firm. How, without the aid of statutory provisions, a sheriff can, by a levy under an attachment against the property of two partners, constitute himself or a purchaser- at a sale, made by him, of the attached property, an agent of those against whom-no attachment has been issued, to dispose of their interest in the property, I am unable to conceive.

In no view of the case is it withdrawn from the operation of the principles established by the above cited cases in the Supreme Court.

The counsel for the defendant Kelly, however, makes the point that, irrespective of the attachment, he is protected by the execution, because the sale to Berry was void, as being made with intent to hinder, delay and defraud creditors. The learned judge, before whom the case was tried, says the *bona fides*of this sale was not seriously controverted on the trial; it certainly was not seriously controverted on the argument. In fact, the evidence shows that it was *bona fide.*

The judgment against the defendant Kelly must be affirmed.

But the plaintiff ^has also appealed from the judgment, claiming:

1. That he is entitled to judgment against Ketchum and others.

-. *2.*That he should not be limited to one third of the value of the goods, but should be allowed to recover the whole value.

*1273. That he is entitled to costs as against the defendant Kelly.

The first ground of appeal is based on the fact that the defendants, Ketuhum. and others, gave to the sheriff a bond of indemnity. The bond is not in evidence, and we know nothing of its contents, except as they are alleged in the complaint. The complaint alleges that the defendants, Ketchums & Belknap, indemnified and directed the sheriff to take, remove and sell all the goods, and that the sheriff, in consequence of such indemnity, did sell, absolutely, all of said goods, and not the right, title and interest therein of said Greorge Carroll and Benjamin F. Mead only. The answers of the defendants, Ketchums & Belknap do not controvert these allegations. They consequently admit that this sale of the entire property was made by their direction. They are, consequently, trespassers, as "well as the sheriff. Judgment should have been given against them.

In regard to the second ground of the plaintiff’s appeal, his counsel relies on the two cases in the Court of Appeals of, *Hull*v. *Carnly,*(11 *N. Y. Rep.*501;) *Manning*v. *Monaghan,*(23 *id.*539.)

In those cases the action was brought by a mortgagee, holding a chattel mortgage, the goods covered by the mortgage having been sold by the sheriff in separate parcels on an execution issued on a judgment against the mortgagor before the mortgage became due, and before the mortgagee was entitled to possession ; and the court intimates that if the payment of the mortgage debt depended in whole or in part on the efficacy of the mortgage, and if the efficacy of the mortgage was destroyed by the .manner in which the mortgaged property was sold under the execution, the sheriff, if notified of the mortgage, would be liable for the damages sustained. It will be observed that the mortgagee had a reversionary interest in the whole of the goods, and that such reversionary interest was superior to the sheriff’s right under the' execution ; it might, therefore, .well be held that the sheriff was bound to exercise his subordinate right in such manner as not to damage the superior right.

*128In the case before us the plaintiff bought the goods subject to the attachment on the shares of two of the partners ; his right, therefore, was subordinate to that of the sheriff. Being thus subordinate he is not at liberty to control the sheriff in the exercising of his superior right in such manner as shall be more, beneficial. Again, for the share unattached, the plaintiff has received full damages. As to the attached shares, he has no greater rights than the partners against whom the attachment issued would have had. The rights of such partners would be, in case the proceeds of sale were more than enough to satisfy the execution, to have the excess paid to them, and in case of abuse of process, to hold the sheriff liable in damages for such abuse. The complaint in this action sets forth no abuse of process further than can ,be gathered from the allegation ¥ that the goods were, sold in many parcels to many parties unknown to the plaintiff, and that it is next to impossible to follow said goods into the hands of such purchasers.”

How under section 23, article 2, title 5, chapter 6, part 3 of the Bevised Statutes, which provides, that on a sale under execution, personal property shall be offered for sale in such lots and parcels as shall be calculated to bring the highest price, the bare fact that the sheriff sold in many parcels can be an abuse of process, I am at a loss to perceive.

It may be that if the plaintiff had a right superior to the attachment and by such right was, after the sale, entitled to the possession of the goods, or to an action against the purchasers arising out of the goods, the above cited section should be made to yield, so that no unnecessary impediment should be placed in the way of pursuing the goods or bringing the action.

I am unable to see that the plaintiff has any such right of pursuit or of action. He made an absolute purchase of all the goods of the firm except those attached. As to those attached he purchased the share of the partners against whom no attachment was issued, and such interest as the other partners had in their shares after satisfying the attachment. The purchase vested .in him such shares and interest free from all claims thereon for part*129nership or individual debts. He stands in no position to say to the purchasers at the sheriff’s'sale, as this partnership was insolvent, you are bound either to restore the goods to be applied to the payment of parsnership debts,, *pro rata,*or to account for their value for the same object.

As to the third ground of the plaintiff’s appeal, although I think it somewhat doubtful whether the plaintiff is not entitled to costs, as matter of course ; yet, as my associates are are of a different opinion, and think that the costs were in the discretion of the court below, I am willing to yield my doubts to their united conviction.

Judgment affirmed as to Kelly, without costs to either party. Judgment as to the defendants Ketchum and others must be reversed and a new trial had, with costs to the plaintiff, to abide the event.