Moody v. Payne

New York Court of Chancery

Moody v. Payne

2 Johns. Ch. 548, 1817 N.Y. LEXIS 150, 1817 N.Y. Misc. LEXIS 3

CourtNew York Court of Chancery

DecidedSeptember 22, 1817

StatusPublished

Cited by19 cases

This text of 2 Johns. Ch. 548 (Moody v. Payne) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moody v. Payne, 2 Johns. Ch. 548, 1817 N.Y. LEXIS 150, 1817 N.Y. Misc. LEXIS 3 (N.Y. 1817).

Pincite

Opinion

The Chancellor.

[549]*549[ * 550 ]

[548]*548It is true, the execution at law only takes the interest of the partner who is sued, subject to the partnership debts; and there are difficulties in selling such an uncertain interest, before it is ascertained, by taking and stating the accounts in this Court, what is the interest to be sold. Lord Eldon, in Waters v. Taylor, (2 Vesey & Beame, 301.) felt the weight of that difficulty, but still he seemed to admit, that a Court of law might, in the mean time, go on and sell, and that this was the constant practice. I do not know that this Court has ever undertaken to stop an execution at law, in such a case, until the partnership accounts have been taken, and it would be too much for me to assume it without precedent. The principle would go to stay executions at law, in every case, against the partnership prop[549]*549erty of one partner, who owed separate debts, until the disclosure and liquidation of the concerns of the copartnership. This would produce inconceivable delay and embarrassment, respect to the separate creditors. If those creditors can sell only subject to the joint creditors, there is no harm in suffering them to go on at law; and if any sacrifice of the interest of the separate partner is made, by reason of the uncertainty, it affects only that partner, who does not here raise the objection. The late exchequer case of The King v. Sanderson, (1 Wightwick Ex. Rep. 50.) admitted, that upon an extent against one partner, the crown, like a separate private creditor, took the separate interest of the partner, subject to the partnership debts; and that it was the practice for subjects to issue executions against the interest of one partner, and that thg sheriff sold only the interest of such partner, and not the effects themselves. The cases referred to by Mr. Maddock, do not warrant his conclusion, that chancery stops such executions by injunction. It is evident *that the Courts of law are in the constant practice of awarding execution in such cases, and that this Court does not, ordinarily, and upon such general grounds, enjoin the sale at law.

Injunction dissolved.

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The Chancellor.

[549]*549[ * 550 ]

[548]*548It is true, the execution at law only takes the interest of the partner who is sued, subject to the partnership debts; and there are difficulties in selling such an uncertain interest, before it is ascertained, by taking and stating the accounts in this Court, what is the interest to be sold. Lord Eldon, in Waters v. Taylor, (2 Vesey & Beame, 301.) felt the weight of that difficulty, but still he seemed to admit, that a Court of law might, in the mean time, go on and sell, and that this was the constant practice. I do not know that this Court has ever undertaken to stop an execution at law, in such a case, until the partnership accounts have been taken, and it would be too much for me to assume it without precedent. The principle would go to stay executions at law, in every case, against the partnership prop[549]*549erty of one partner, who owed separate debts, until the disclosure and liquidation of the concerns of the copartnership. This would produce inconceivable delay and embarrassment, respect to the separate creditors. If those creditors can sell only subject to the joint creditors, there is no harm in suffering them to go on at law; and if any sacrifice of the interest of the separate partner is made, by reason of the uncertainty, it affects only that partner, who does not here raise the objection. The late exchequer case of The King v. Sanderson, (1 Wightwick Ex. Rep. 50.) admitted, that upon an extent against one partner, the crown, like a separate private creditor, took the separate interest of the partner, subject to the partnership debts; and that it was the practice for subjects to issue executions against the interest of one partner, and that thg sheriff sold only the interest of such partner, and not the effects themselves. The cases referred to by Mr. Maddock, do not warrant his conclusion, that chancery stops such executions by injunction. It is evident *that the Courts of law are in the constant practice of awarding execution in such cases, and that this Court does not, ordinarily, and upon such general grounds, enjoin the sale at law.

Injunction dissolved.

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Bluebook (online)

2 Johns. Ch. 548, 1817 N.Y. LEXIS 150, 1817 N.Y. Misc. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moody-v-payne-nychanct-1817.

Opinion

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