his duty, he is bound to seize and sell whatever interest the individual partner may have in the joint property; if he do not possess any interest, or if, possessing an interest, it has been seized under a prior writ of execution, and therefore is in the custody of the law (a), the sheriff must return nulla bona. But the interest or share of the other partners not being affected by a writ of execution executed against the joint effects at the instance of a separate creditor of one partner, it follows, that if, after a levy made under that writ, writs of execution should likewise be issued against any of the other partners, the sheriff must seize their shares, and if, instead of doing so, he return nulla bona, such a return will be false, and he will be liable to an action for making it (b).

But notwithstanding the rules by which a court of law is fettered and bound down, render it incompetent to administer complete and substantial justice to all parties, yet in cases of execution courts of equity will interpose their aid, and finally adjust the rights of the parties. In adjudicating such questions the governing principle is, that the equity of the creditor is founded on the equity of the partner (c), and as the partnership property has been acquired by the contraction of partnership debts, it ought first to be applied in discharge of them, according to the maxim, qui sentit commodum, sentire debet et onus. The separate creditor of one partner having, therefore, no right against the partnership property beyond the separate interest of that partner, the solvent partners may file a bill in equity against him to take an account, as a means of ascer taining what interest the individual partner actually possesses in the joint stock, and until such account be taken, may obtain an injunction restraining proceedings under the writ (d). And even after a sale by the sheriff, as his vendee becomes tenant in com(c) Campbell v. Mullet, 2 (d) Taylor v. Fields, 4 Vesey, 396. S. C. 15 Ves. 559. in note.

(a) 1 Show. 169. Swanst. 570.

(b) 1 Show. 169.

mon with the solvent partners of the joint effects, the latter may exhibit a bill and compel him to assent to the ordinary equity attaching on partnership property, which is, that it is not to be divided until the joint debts, and the separate claims of the partners themselves, are paid and discharged (a). In such a case, a court of equity, differing in this respect from a court of law, has no difficulty in settling and arranging the rights of the parties secundum æquum et bonum; and, considering the nature and effect of the contract of partnership to be, that the whole property is pledged to partnership purposes, and amongst and in preference to any other purpose, to the payment of the joint debts, and having the means of taking the complicated accounts of the partnership, it converts the joint stock into that state in which the property would be divisible as clear surplus (b). It concedes to the judgment creditor only that quantum of interest which the individual partner himself could extract out of the concerns of the partnership after all the accounts of the partnership are taken, and the effects of the partnership are reduced into a dry mass of property, upon which no person except the partners themselves have any claim (c). The party succeeding to the right of the partner comes into nothing more than an interest in the partnership, which cannot be tangible, cannot be made available, or be delivered, but subject to an account between the partnership and the partner. If the whole property be due to the joint creditors, they have the preferable right to it; but if it be not exhausted in satisfying their demands, and the other partners have claims upon the remaining surplus, in consequence of having brought into the partnership or disbursed more than their proportion, they must be placed on an equality, by a reimbursement of their advance, before the judgment creditor, or the person

(a) Per Lord Alvanley, Chapman v. Koops, 3 Bos. and Pul. 289.

(b) Dutton v. Morrison, 17 Ves. 206. S. C. 1 Rose, B. C. 213. See also Barker v. Goodair, 11 Ves. 85. (c) Dutton v. Morrison, supra.

claiming through the sheriff, can insist upon payment: for all that can, in such case, be delivered in equity, is the interest which the partner had in the same state and condition in which it was, and subject to the same claims as existed against it when the partner himself possessed it (a).

On the subject of executions it remains to be observed, that the writ of execution must correspond with the judgment by which it is warranted, and on which it depends. As, on a judgment against an individual, an execution cannot issue against him and another, so on a joint judgment against several, a separate execution against one cannot be sustained (b). Even if some of the defendants have died since the judgment was recovered, the execution must still be taken out in the joint names of all those against whom it was obtained (c).. But when it is issued against all, it may be executed against all, or separately against each, since each is answerable for the whole debt, and not for any definite proportion of it (d). And if it be enforced against an individual defendant, from whom actual satisfaction is obtained, such satisfaction operates as a discharge of the other defendants from the claim of the plaintiff (e). The creditor is entitled only to payment, which, if made by one debtor, must necessarily liberate the other debtors from his demand, although, as between the debtors themselves, the consequent obligation arises, of contributing each his proportion towards the liquidation of the debt (/). On the same principle it is, that if, after one of several joint debtors on a judgment has been taken in execution on a capias ad satisfaciendum, he escape, and the creditor, in an action against the sheriff' founded on the escape, recover from him the debt and damages due on the judgment, the demand of

(c) Ld. (d) Abbot v (e) Hob. 59.

(a) Taylor v. Fields, 4 Ves. 396. S. C. 15 Vesey, 559. See also Young v. Keighly, 15 Vesey, 557. (b) Clarke v. Clement, 6 T. R. 525. Hob. 59. Raym. 244. S. C. 1 Salk. 319. Tidd's Pract. (7th ed.) 1155. Smith, 2 Blacks. Rep. 947. Ex parte Ruffin, 6 Vesey, 119. Com. Dig. Tit. Execution (H).

(f) See ante p. 90,

the creditor is extinguished; because, as regards him, were the judgment not vacated, he would obtain a double satisfaction (a). The law, therefore, substantially transfers the remedy to the sheriff, who, by an action bottomed on the recovery against himself, may obtain a complete indemnification against the damages he has been constrained to pay. But it is not alone in cases of an actual pecuniary satisfaction received by the creditor that the debtors on a joint judgment are absolved from their joint and several responsibility under it; the creditor himself may, by his own acts, produce a perfect exoneration of the debtors from liability, both separate and joint. For instance, if, after the person of a single joint debtor has been taken by virtue of a writ of execution issued against several, the creditor, on a compromise being effected, or for any other cause, consent to his liberation, he cannot afterwards retake him, or take any of the co-debtors; the personal caption and subsequent voluntary discharge of one joint debtor, under final process, being so far considered as a legal satisfaction of the entire debt, as that it cannot be enforced against the other debtors (b). And where a plaintiff obtained a verdict in trespass against two defendants, and both being arrested on a joint writ of capias ad satisfaciendum for the amount of the damages, one was afterwards discharged on giving a promissory note to the plaintiff, payable by instalments, it was held that this operated to discharge the other (c). But although such is the legal consequence of a discharge of one of several joint debtors, when emanating from the act of the party or creditor, yet the same effect does not result, where the liberation proceeds from, and is a consequence of the act or operation of the law. Therefore the discharge, under an insolvent debtors' act, of one of two defendants taken on a (a) Hob. 59.

(b) Clarke v. Clement, 6 T. R. 526. Cro. Eliz. 573. 5 Co. 86. See also Tanner v. Hague, 7 T. R. 420. Blackburn v. Stupart, 2 East, 243. (c) Ballam v. Price, 2 B. Moore, 235.

joint writ, does not operate as a discharge of the other defendant, since it is not with the actual consent of the creditor (a). Nor are joint debtors exempted from their joint responsibility, if one of them being taken in execution escape, and the creditor not exerting his legal remedy against the sheriff, does not obtain from him an equivalent in damages for the debt (b). So, if one die whilst in execution under a joint judgment, the right of the creditor under the judgment survives against the others (c). A caption of one defendant under a capias ad satisfaciendum is no actual satisfaction, so as to bar the plaintiff from taking out execution against other persons liable to the same debt or damages (d).

If the sheriff, under an execution against one of two partners, seize and sell the whole of the property, the solvent partner may, it seems, either consider the seizure and sale as a tort, and maintain an action of trover against him, or he may waive the tort and adopt the sale; in which case, he may proceed against the sheriff as for money had and received to his use (e). But if, under such an execution, the sheriff neither seizes nor sells any part of the joint property, but falsely returns nulla bona, in an action against him for such return, the proper measure of damages seems to be half the value of the whole goods (ƒ).

Creditors, or persons contracting with a partnership firm, may likewise, where there is a defect of remedy at law, resort to a court of equity, and call in aid its interference. In many instances more effectual relief is administered in equity, than the forms and technicalities of the law will allow it to grant. The common law, for example, though it professes to adopt the lex mercatoria, has not adopted it throughout, in what relates to partnerships in trade.

(a) Nadin v. Battie, 5 East, 147.

(b) Cro. Eliz. 479. 555. 573. 5 Co. 86. Hob. 59.

(c) Id. Ibid.

(d) Hob. 59. and see Brickwood v. Annis, 5 Taunt. 614. S. C. 1 Marsh. 250.

(e) Tidd's Pract. (7th ed.) 1024.

(f) Tyler v. Duke of Leeds, 2 Stark, N. P. C. 218.

It