Green v. Pyne

1 Ala. 235

• Court: Supreme Court of Alabama
• Decided: January 15, 1840
• Status: Published

Opinion

GOLDTHWAITE, J.

— We are not apprised of the reasons which induced the County Court to quash this attachment, unless they were those which are stated in the motion of the defendant; and none of them are sufficient to support the decision.

1. A debt due from copartners, is the debt of each one of the partners, and each may be severally sued; or, to speak with reference to our own statutes, it is lawful to prosecute an action against any one or more of the partners: (Aik. Dig. 268:) Southwick v. Marr’s executor’s: (2 Porter 351.) As an action can be lawfully prosecuted against one partner, there seems to be no impediment to suing out process of attachment, whenever the requisite affidavit can be made. It is not necessary to consider what the condition of this suit might have been, if the defendant had died before final judgment, leaving a partner surviving.

2. The uncertainty and generality of the description of the goods levied on, is no cause for sending the plaintiff out of court. If more particularity was wished, the sheriff might have been, and would ha.ve been compelled, by the court, to amend his return, by adding an inventory or schedule.

3. As the attachment was sued out before the passage of the act of 1837, some doubt may exist whether the levy of it on land, could have any effect. However this may be, it is certain that the levy on the personal estate is sufficient to sustain the attachment in court; and is a good execution of the process.

It is not, perceived how the defendant could .be precluded from replevying his goods, either, because this, was levied generally, with other attachments: or because lands as well as goods, were levied oh. In both cases, the goods were replevied.

Let the judgment of the County Court be reversed, and the cause remanded for further proceedings.