Inbusch v. Farwell
66 U.S. 566

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U.S. Supreme Court

Inbusch v. Farwell, 66 U.S. 1 Black 566 566 (1861)

Inbusch v. Farwell

66 U.S. (1 Black) 566

Syllabus

1. Partnership goods were attached on mesne process against three partners for a partnership debt, property released on bond conditioned to pay the judgment which may be recovered against the defendants, suit discontinued against two defendants for want of jurisdiction, and prosecuted to judgment against the administrator of the other. Held that the plaintiff may recover from the sureties in the bond the amount of the judgment.

2. Sureties in such a bond are sureties of the partnership, and if compelled to pay the money, they have an action for reimbursement against all who were partners at the date of the bond.

3. A judgment against one partner or his administrator (the other partners being out of the jurisdiction) binds the partnership property, and if partnership property be attached in such a case and not released, the marshal is bound to sell it and apply the proceeds to the satisfaction of the judgment.

4. A judgment for a partnership debt recovered against one of the partners is payable out of the proceeds of partnership property in preference to the individual debts of the partner sued.

James Buchanan, Henry Eastman, and Patten McMillan were partners trading under the firm of Buchanan, Eastman & Co. Charles B. Farwell was a creditor of the firm, and commenced an action in the district court against all the partners by summons, with attachment. The marshal attached personal property of the partnership, and served the summons on Buchanan and McMillan. Afterwards, all three of the defendants appeared to the action. A bond was executed by James Buchanan, John G. Inbusch, and John D. Inbusch, referring to the action, reciting the attachment of the defendants' goods and conditioned for the payment of the amount of the judgment that might be recovered against the defendants. On filing this bond, an order was made to release the defendants' goods, which was done. Subsequently, it being made to appear that two of the defendants, Buchanan and Eastman, were citizens

Page 66 U. S. 567

of Illinois, the plaintiff discontinued his action as to them for want of jurisdiction in the court. The death of the other defendant was suggested and his administrator was substituted. The action proceeded against the administrator of McMillan to verdict and judgment.

The present suit is against John D. Inbusch and John G. Inbusch on the bond in which they were sureties, and on which the goods of Buchanan, Eastman & Co. were released from the custody of the marshal. The defense was that the plaintiff had not recovered judgment against the defendants, and therefore the condition of the bond was not broken. But the judge of the district court refused so to charge the jury, and ruled that the suit would lie on the bond to recover the amount of the judgment rendered against the administrator of McMillan, one of the defendants. Verdict and judgment were accordingly given for the plaintiff, and the defendants took their writ of error.

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