New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-05-25
COURT OF COMMON PLEAS-SPEcrAL TERN-MAY - .
Before Judge BRADY.
pr ACTICH CASB EXECUTION AGAINST PARTNFRSRiF

Turner agt smith and others.
This was an equity action brought under the follow
ing circumstance One Of the defendants menber 80
copartnershp against whom Smith had obtained jldgsns
before the coparnershp formed After the partners
hee In bnsiness sevesf wears Smith, in Feb 'uaIy, 1866
execution 10 the Sheriff. directing sac oil tAe mef'
the debtor In the coparuershp effects Turner. ooe OF it
partners brought his action against smith and tue shef na
his cOpartuer alleging that HE coparner ~s lnd'b'N ' F
firm 20 the full Of his interest IN tho coaitnf
effects and that the debtor had interest IN the cDH
Debip effects either az law or IN equity lame 70 nc ~ '
execution that the ceremony Of sale Of any ah'tfe
also other things rendered reference to re
Judgment creditor offering submit all his books and pf
tie e1l that il might asceTained upon legal acOit
ing IN advance whether the p9iniiH had any interest DiD
sale. Upon the compliant dry verified, bis Honor M j1'
tee Cadoza granted an injunction agar. the defendant
smith, and the Sheriff smith and tae sheriff answered I'D
upon biz aud moved % dissolve the Injunction t
brought to be heard before his honor NJ u.s.
Amos g. Hull for the plaintiff Brown Hall and Vaod,.le
FOR the Sheriff Arthur Gardner for The defendant Sah.
The Injunction sustained and the following decision sA
BRADY 1.-THE complaint in this action alleges ,ut''an
italy, that the partner whose interest mas uee seNel H
execution has - interest ~ Tact 1.-THE assets % me
ship and the plaintiff il willing % refer the subject OF one
that II may be Investigated and determined THIS seels a.
reasonable mode Of procedure more pal.'
arly where this ease the plaintiff has fled eosfr,
that the reference be proceeded with at once Inaneoss ~
these do not nee, with favor IRON be courts IA 49,
bray Lawrence = How Rep !07 it's saia the, he ~"
hors this State adverse tothe interference of ct
Of equity by injunction to restrain me sae OF t'
Of partner, IN copaTtnershp property on JlRi p,
debt but the refusal grant the Injunction in that
predcated Of the ct that did not appear by the aVm
creditor should be allowed to reach By sale on A exon 20
The Of Philips aet Cook "a Wend 50 cited bF ''
Leonard in tie mentioned Is not boweEe On authority
against the exercise Of the equity power hyoEeu o{
tlOa u action Of eDlss and the Corft bell ma
could be maintained against The plaintiff fo sezne ~.
partnership property TO satisfy execution ag,i.st
one OF the partners. ard delivering the pgolnp
deroton was eaboaiely discussed bv Justice Cover
the power practice of the Courts Of Equity ia uch
the equitable rule IN England New York. and NOS. OF 30
that though the sheriff may At law levy On and sci go
1lr shall
the purchaser yet be takes subject 20 account between zoe
partners which, i eyentuate against h his purchase gay
20 Tor nothing That however is his oWH IOk Ii
why creditor should be deprived o bis LEGAL nt
70 se OF the purchaser OF BIS legal rFnt to bay Toe ' OF
understand H. against the exercise 81 the eqny power
The Chancellor entertained the opinion aat
creditor coGd only sell the interest Of the individual partner
subject the ghts Of the Joint cTetO- and not The
ery itself the nle being in equity that the partnership
Watson Taylor Nos. and Bel; Walter egt Ndth u
J IO7 W. and he expressed opinion Therefore q AZ u
any b. the sale Of the interest Of oBe part
by o. the unceitanty 1t oneced ouy tla air
Il said BY Savage. On. j.. in Ser0ghan sgt Carer !.
Wend 49, that If tie Shef, 10y yFtgTe OF en- execution
against u several partners akes pssson Of tne Pop
erty an action law does not lie against him. Tie
Cour. from which the execution issued would sia'
paCoaHt taken IN eqritv H. Packer Az Piston Boss
itos applied extend tae Of the r aeia The -
an account could be taken Of several claims upon fh"
The Court Ofte opinion that there was no ground ~
their interpretation aa The line Of conduct r re
pursue put person IN possession Of h,
de:endans proyerty yendee leaving hu and the pa,
Interested 10 contest the matter IN equity, where y
might be fled stating that lie had taken possession q 80
property and praying tat N might lot be disposed ~ t
al claims were Grrauged. In Chapman agt Hoops, repo-
In the volume Of Boss & Pull p -. a s.n.ar
application denied Ou, Lord AsGaey, Gu j. said among
things desired 70 reotIa tie panth5 e1,s
ton because il alleged he stands Shoes II pagpeT
nho would not have right to moiest the other parners urn
all accounts between them had been settled But y . l'
partner wishes take advantage ol th CIRCUMSTANCE, 'hcs
oIgh lie blu IN equity against the Yendeo OF the >heb
or they may buy in the property when put up for sa
] J.
| that the Court cainot diIrct p.FWersAip "'o"i,
to be taken without assuming jurisdiction ilat
docs 10; belong j. The case OF Philips act Cook sg
being determination Of the FgLt OF tie oherA 10 scu re
property the coplrnesp execution against ol' Or
the partners and deliver the yedee makes the iBt.
son Of equity power in proper emnenty just lie
ht mentioned does moi commend itself 10 orr best consdera
ton docs be far that property Owned by s'v
eral should be taken away on process against one
one conseqleGc OF bis relations TO the o's
financial and otherwise. may have iite or no n
iercst in it, Tie finn creditors have the superior right
the property other than tie individual cfe
The interest ofeacA is only the share that remains amer
partnership taken. There u little dolpt
that the right Under discussion Is one asserted by the eo
law to AVOID encroaehmen upon equity Jurisdetoni ana
the only instance in which the division 0' nrisdei"t
legal and equitable has led TO useless ana absurd croumocu
ton There dOnbt that equity bad the power 10 nts
INK Of the different TRIBUNALS IN one uner oar present system
there is no why stay should not be granted on al
execution stated by Justice Willard IN accordance wiz
the suggestion OF Savage G. j. In ScTughamys Carter supra
Tue plaintiff has however brought his action IN equity abc
alleges there nothing 10 be sod Assuming that 10 ~
So il would be very 10 allow the pfrinerrhp properly
20 be sold and delivered leaving the plaintiff 10 pursue he
yendee who would be obliged TO give security and mfl
only dispose Of the property hut be utterly insoNent
think why the right 10 sell and deliver shoGe
never have given The right sell ne interest leaving
the purchaser 10 ascertain what 1t vas ana rule requiring
reference submitted by all tie p,rtneIs, would have
the ends OF justice better than the existing rule N
this think the plaintiff entitled To an injunction sIc
the defendant the reference which the plaintiff tended y
they feel disposed require II at the present stage OF this az
ton.