Mowbray a. Lawrence. How can it be supposed that the plaintiff's knew better than the defendants whether the building was fit for manufacturing and selling hats? The defendants do not allege that the plaintiffs represented the building not to be leaky. The attention of the plaintiffs does not seem to have been directed to that subject. It would be a far-fetched implication to say that a representation that a building was "good, strong, and substantial, and fit for hatters' business," was a warranty that the building was not leaky. The allegation that the building was unsubstantial and dilapidated is too general, as a negation of the representations. The answer is wholly insufficient, whether it be considered upon the theory of an implied warranty, or that of false and fraudulent representations of material facts. There does not appear to be any fact, in regard to which representations were made by the plaintiffs, not within reach of the defendants' means of knowledge, or whereby they were induced to forbear an examination of the premises, or which might not be fairly considered a mere expression of opinion by the plaintiffs. Judgment for the plaintiffs on the demurrer. MOWBRAY a. LAWRENCE. Supreme Court, First District; Special Term, October, 1861. SALE, UPON EXECUTION, OF THE INDIVIDUAL INTEREST OF ONE INJUNCTION. PARTNER. The court will not interfere by injunction to restrain the sale of the interest of one partner in copartnership property, under a judgment and execution against such partner for a debt due from him individually, where there are no averments in the complaint to show that the debtor in the execution has not some interest in the property levied on, after the satisfaction of the partnership debts, and after deducting the interest of the solvent partners from the partnership estate. If one of several partners has an interest in the assets of the partnership over and above the claims of his copartners, and those of the creditors of the partner Mowbray a. Lawrence. ship, there is no reason for the court to interfere by injunction to restrain a sale of his interest in the partnership property, upon execution on a judgment against such partner individually. Demurrer to a complaint. This was an action brought to restrain the defendant, John Kelly, sheriff of New York county, from selling the interest of the defendant, Lawrence, in the property of the firm composed of the defendant, Lawrence, and the plaintiff, upon an execution against Lawrence alone. The defendant, Lawrence, did not contest the action. The defendant, Kelly, demurred to the complaint. Nelson Smith, for the plaintiff.-I. Where the separate creditor of one of the partners has taken goods in execution in discharge of his separate debt, the other partners may file their bill against the debtor-partner and the sheriff, for an account and injunction. (Story on Part., § 264; Taylor a. Fields, 4 Ves., 396; Matter of Smith, 16 Johns., 102; Wilson a. Conine, 2 Ib., 280; Beavan a. Lewis, 1 Sim., 419; Scrugham a. Carter, 12 Wend., 131; Eden on Inj., 31.) II. It is true that in Moody a. Payne (2 Johns. Ch., 548), a contrary doctrine was held; but at the time of this decision the rule at law did not permit the sheriff to deliver the whole partnership property to the purchaser at a sale by him on an execution against one partner, while the rule is now established that the sheriff may, on such an execution, seize the whole copartnership property, sell the interest of the execution-debtor, and deliver the whole property to the purchaser. This might work irreparable injury to the right of the other partners. The rule in Moody a. Payne should not therefore be followed. A. J. Vanderpoel, for the defendant, Kelly, cited Philips a. Cook (24 Wend., 389); Waddell a. Cook (2 Hill, 47); Moody a. Payne (2 Johns. Ch., 548). LEONARD, J.-The authorities in this State are adverse to the interference of a court of equity, by injunction, to restrain the sale of the interest of one partner in copartnership property, on judgment and execution against such partner to recover a debt Mowbray a. Lawrence. due from him individually. (Moody a. Payne, 2 Johns. Ch., 548; Phillips a. Cook, 24 Wend., 389.) In the case of Phillips a. Cook, although an action at law, the English authorities, upon which ours are founded, are carefully reviewed by Judge Cowen, and he comes to the conclusion that the remedy of the solvent partner, where he has been injured by such a levy, is to proceed in equity against the purchaser at the sheriff's sale, for the purpose of ascertaining the interest which the purchaser has acquired, or which the debtor owned in the property at the time of the sale, and that the creditor has an absolute right to have the interest of his debtor in partnership property sold on execution, which neither a court of law or equity ought to restrain. (See, also, Colnyer on Part., 4 Am. ed., § 831, note 2.) The purchaser acquires only the interest which the debtor has in the partnership property, after the payment of partnership liabilities, and the protection of the rights of the other partners. In the present case there are no averments in the complaint to show that the debtor, in the execution, had not some interest in the property levied on after the satisfaction of partnership debts, and after deducting the interest of the plaintiff from the partnership estate. It is stated that the liabilities are $18,000, and that the plaintiff contributed $11,000 to the joint-stock; but it is not stated what was the amount or value of the contribution of the debtor Lawrence, or what is the present value of the partnership estate. There are no means of determining, from these averments, that the debtor has not an interest which the creditor should be allowed to reach by a sale on his execution. If the debtor has an interest in the assets of the partnership over and above the claims of partnership creditors and of the plaintiff, there is no reason at law or in equity for interfering to stay the sale. The plaintiff should at least make it appear by his complaint that there was no such interest to be reached by levy or sale. (Story on Part., § 264.) Judgment for the defendant Kelly on the demurrer, with costs. Field a. Chapman. FIELD a. CHAPMAN. Supreme Court, First District; Special Term, December, 1861. CREDITORS' ACTION.-INJUNCTION.-CONTEMPT. A creditors' action cannot be maintained upon a judgment taken against jointdebtors, of whom a part only have been served with the summons, and where no excuse for the want of such service appears. Nor can it be maintained unless an execution has been issued against all the judgment-debtors, and that remedy pursued to every available extent. It seems, that it cannot be commenced until sixty days after the execution was issued, even though the sheriff returns it unsatisfied at an earlier day. A defendant being restrained by injunction from disposing of certain property, left it in the charge of his clerks at his ștore, mixed indiscriminately with other property, and having informed the clerks of the existence of the injunction, left the store without any effort to separate and identify the property, and did not interfere personally in the management of the business for some time afterwards. During his absence his clerks sold some of the property covered by the injunc tion. Held, that the defendant had, by connivance, violated it, and was in contempt. Though a party in contempt, even when the court has not adjudicated him to be so, cannot be heard to ask for a favor, he must be heard upon a matter of right. When a defendant, while in contempt for violation of an injunction, moves for its dissolution, and is entitled on the merits thereto, his motion should be granted on payment of the costs of the proceedings taken for his punishment. Motion on the part of the plaintiffs for a receiver of the partnership property of the defendants, Isaac L. Hunt, Julia A. Chapman, and George M. Chapman. Motion on the part of the defendants, J. A. and G. M. Chapman, in this action, and another brought by John Askham and others, against the same parties, for the dissolution of injunctions granted ex parte. These were creditors' actions, brought upon two judgments obtained against Hunt and Julia A. Chapman, who were partners in business. The actions in which these judgments were obtained were commenced by service of summons on Hunt only, and no execution had been or could be issued against the separate property of his partner. There was evidence to show that these proceedings were taken by collusion with Hunt, and that Field a. Chapman. the sheriff was instructed to return the executions unsatisfied. Many questions were raised upon which the court did not pass, and all the other material facts are stated in the opinion. G. N. Titus, for the plaintiffs.-I. The judgments of the plaintiffs were regularly recovered by the service of process upon the defendant Hunt, and created a lien upon the partnership property of the firm of Isaac L. Hunt & Co., composed of the defendant Hunt, and Julia Ann Chapman. (2 Rev. Stat., 377; Pardee a. Haines, 10 Wend., 631; Campbell a. Mathews, 6 Ib., 551; Mason a. Denison, 11 Zb., 612; S. C., 15 Zb., 64; Oakley a. Aspinwall, 2 Sandf., 7; Code of Pro., § 136, subd. 1.) As against the partnership property, the judgments are conclusive upon both partners, and their collection out of such property may be enforced by execution or in any other manner provided by law for the collection of debts. (Voorhies a. Bank of U. S., 10 Pet., 450; McLeod a. Selby, 10 Conn., 390; Eastman a. Curtis, 4 Verm., 616.) An execution may be levied upon the partnership property, and if returned unsatisfied, an action to enforce the lien of such judgments against the partnership effects will be sustained. The case of Oakley a. Aspinwall (4 N. Y. (4 Comst.), 513) holds no different doctrine. II. On this motion no objection to the validity or regularity of these judgments, executions, or returns made by the sheriff of the executions, can be considered or entertained. (Hone a. Woolsey, 2 Edw., 289; Whitaker a. Merrill, 28 Barb., 526; McLeod a. Selby, 11 Conn., 390; Eastman a. Curtis, 4 Verm., 616.) Such objections can be raised only by motion to set aside the judgments and executions when the plaintiffs may read affidavits in opposition. III. There is no evidence before the court of any collusion between Hunt and the plaintiffs, or their legal advisers, to injure the two defendants Chapman in anywise whatever. All their statements in regard to the matter are stated in the affidavits of the two Chapmans upon information alone, without even stating from whom it was received. · (Points on motion to dissolve injunction.) I. The defendant, George M. Chapman, has violated the injunction-order which he asks to have vacated. If the court VOL. XIII.-21 |