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.
MR. JUSTICE CLIFFORD.
This is a writ of error to the District Court of the United
States for the District of Wisconsin. As appears by the transcript,
the suit was brought on the nineteenth day of October, 1859, by the
present defendant, and the proceedings in the suit show that he had
judgment in the court below and that the original defendants sued
out this writ of error. It was an action of debt upon a bond signed
by one James Buchanan for and on behalf of himself, Henry Eastman,
and Patten McMillan, as principal, and John G. Inbusch and John D.
Inbusch, as sureties. Process issued against all three of the
obligors who signed the bond, but service was not made upon the
principal for the reason that he was out of the jurisdiction of the
court.
Referring to the recitals of the bond, it will be seen that it
was given for the discharge of certain personal property
attached
Page 66 U. S. 568
by the marshal, and held by him at the date of the bond, under a
process of attachment duly issued by the district court of the
United States for the same district against said James Buchanan and
the other two individuals, for and on whose behalf he professed to
act in executing the instrument. They were co-partners in the
lumbering business, under the firm name and style of Buchanan,
Eastman & company, and in the course of their trade became
indebted to Charles B. Farwell, the obligee of the before-mentioned
bond. He held against their firm two promissory notes, both dated
October fifth, 1857, and made payable at the Galena Bank, with
interest, at the rate of ten percent. One was for the sum of two
thousand dollars, payable in ninety days from date, and the other
was for one thousand dollars, payable in four months, and both were
signed in the name of the firm. Both notes being overdue and
unpaid, the promisee, on the twelfth day of February, 1858, brought
suit against the three partners to recover the amount. When he
filed the praecipe, he also filed a bond and affidavit for a
summons with attachment, and the process duly issued in that form.
Pursuant to the command of the precept, the marshal attached a
large quantity of pine lumber belonging to the co-partnership,
consisting of pine boards, shingles, and saw logs.
Proceedings for the collection of debts in the district court of
the United States for that district are regulated by the laws of
the state composing the district in consequence of a rule to that
effect adopted by the court. Accordingly, the marshal made an
inventory of the property attached, and caused the same to be
appraised by two disinterested freeholders of the county. They
appraised the property attached at the sum of six thousand four
hundred and fifty dollars, as appears by their certificate appended
to the return of the marshal. By his return it also appears that,
on the sixteenth day of the same month, he made due service of the
process upon Buchanan and McMillan, two of the partners, by giving
to each a certified copy of the process and also of the inventory
made by him of the property attached. All three of the defendants
appeared by attorney on the first day of March following,
Page 66 U. S. 569
and on their motion it was ordered by the court that the
property attached be released and the attachment discharged on the
defendants filing a bond, with sureties, to pay the amount as
ascertained by the inventory and appraisement. Ten days afterwards,
the marshal was furnished with a certified copy of the order of the
court, and upon the defendants in that suit filing the bond on
which the present suit was brought, he released the property and
discharged the attachment.
Recurring again to the bond, it will be seen that it was framed
upon the condition that if the defendants in this suit
"or either of them, will, on demand, pay to the plaintiff in
said action the amount of the judgment that may be recovered
against the defendants in the action, not exceeding the recorded
sum, then this obligation to be void; otherwise to be and remain in
full force and effect."
Two pleas were filed by the defendants in this suit: first they
alleged that the writing obligatory, on which the suit was brought,
was not their deed; secondly they alleged in effect that the
plaintiff in the attachment suit did not recover judgment against
the defendants in that suit for any sum whatever, as by the record
thereof, now remaining in the court, would more fully appear, and
concluded with a verification.
To the second plea the plaintiff replied, specially setting
forth all the proceedings in the attachment suit as already given
and averring in addition thereto that the defendants appeared in
the case on the 24th day of March, 1858, and pleaded to the
jurisdiction, alleging that at the commencement of the suit, they
were citizens of the State of Illinois, and not citizens of the
State of Wisconsin, as alleged in the declaration. They also
alleged that two of the defendants afterwards, on the seventeenth
day of November in the same year made and filed in the cause a
suggestion of the death of the other defendant, and that on the
10th day of January, 1859, he, the plaintiff, filed a replication
to their plea to the jurisdiction of the court denying the matters
therein alleged and averring that some one or more of the
defendants were citizens of the State of Wisconsin, as was alleged
in the declaration. That he, the plaintiff, thereafter, on the
eighth day of April following, by
Page 66 U. S. 570
leave of court, entered a discontinuance as to Buchanan and
Eastman because they were out of the jurisdiction, as alleged in
their plea, and that on the twenty-first day of the same month, the
administrator of the deceased defendant, McMillan, appeared as a
party defendant in the suit.
These allegations were also accompanied by others to the effect
that the suit was duly revived against the administrator of the
deceased partner; that the parties went to trial on the issue
tendered and joined, and that the jury returned their verdict in
favor of the plaintiff, and that the cause was then, for the want
of a plea in bar of the action, referred to the clerk to compute
the damages, and upon his report's coming in, judgment was entered
for the plaintiff in the sum of three thousand three hundred and
seventy dollars and forth cents. Whereupon the defendants filed a
rejoinder averring that all the facts set forth in their second
plea were true and repeating the denial that the plaintiff ever
recovered judgment against the defendants named in the bond. Upon
these several matters they tendered an issue to the country, and on
that issue the parties went to trial. To maintain the issue on his
part, the plaintiff introduced the bond and a duly certified copy
of the record in the attachment suit and proved that he demanded
payment of the amount before the suit was brought.
No testimony was offered by the defendants for the reason,
doubtless, that their defense was and still is that the plaintiff
failed to make out his case. They accordingly requested the court
to instruct the jury that the record of the attachment suit showed
that the plaintiff did not recover judgment against the defendants
in that suit within the true intent and meaning of the bond, and
consequently that there had been no breach of the condition therein
set forth, but the court refused the prayer and instructed the jury
substantially that the suit would lie to recover the amount of the
debt, interest, and costs of the judgment rendered in the
attachment suit, and that the proofs introduced by the plaintiff
showed a forfeiture and breach of the condition of the bond on the
part of the defendants.
Exceptions were duly taken by the defendants both to the
Page 66 U. S. 571
refusal of the court to instruct the jury as requested and to
the instructions given, as more fully set forth in the
transcript.
I. It is not denied that the defendants in the attachment suit
were partners, as alleged in the declaration, and it is equally
clear that the suit was brought to recover a debt due the plaintiff
from the partnership and that the property attached by the marshal
was partnership property.
But it is insisted by the defendants that the judgment recovered
in that case was not in terms a judgment such as is described in
the bond, and that they, the present defendants, being sureties,
have a right to stand upon the letter of their contract. On the
other hand, it is insisted by the plaintiff that the suit was well
prosecuted, under the circumstances stated, against the
administrator of the deceased defendant, and that the judgment,
although against but one of the partners, yet being a judgment upon
a partnership debt in a case where the other partners were out of
the jurisdiction of the court, the effect of the judgment was to
bind the property attached by the marshal, so that it would have
been his duty, if no bond had been given, to have sold the same and
appropriated the proceeds to the payment of the execution issued
upon such judgment.
Jurisdiction in the federal courts is not defeated by the
suggestion that other parties are jointly liable with the
defendants, provided it appears that such other parties are out of
the jurisdiction of the court, but it is expressly provided by the
Act of the 28th of February, 1839, that the judgment or decree
rendered in the case shall not conclude or prejudice other parties
not regularly served with process or not voluntarily appearing to
answer. 5 Stat. 32;
D'Arcy v.
Ketchum, 11 How. 165;
Clearwater v.
Meredith, 21 How. 492
Under that law, therefore, without more, it is clear that if
Buchanan and Eastman had not been made parties to the suit, it
might have been regularly prosecuted against the other defendant in
his lifetime, and after his decease might have been revived and
prosecuted against his administrator, and it is
Page 66 U. S. 572
equally clear that by the law of the state and the rule of the
court adopting the same, it was competent for the plaintiff under
the circumstances to discontinue as to Buchanan and Eastman and
proceed against the administrator of the other partner. Sess. laws,
1856;
see Code, Sec. 25, 10.
It is not questioned that the administrator voluntarily appeared
in the case, and the record shows that the proceeding reviving the
suit was regular and according to law. These considerations lead
necessarily to the conclusion that the judgment against the estate
of the deceased partner was a valid judgment and that the only
question of any importance in the case is as to its effect upon the
rights of those parties.
II. Some light will be shed upon the question by referring more
definitely to the course of proceeding under which the bond was
given and the property attached released. By the law of the state
it is provided that whenever the defendant shall have appeared in
the action, he may apply to the officer or to the court for an
order to discharge the attached property, but to secure that right
he must deliver to the court or officer an undertaking executed by
at least two sureties, residents and freeholders in the state,
approved by such court or officer, to the effect that the sureties
will, on demand, pay to the plaintiff the amount of the judgment
that may be recovered against the defendant in the action, not
exceeding the sum specified in the undertaking.
Appearance was accordingly entered in the case by the attorney
of the defendants in compliance with that requirement and for the
purpose of procuring the discharge of the property held by the
marshal. Attachments are made for the benefit of creditors, but the
provision for the discharge of the property attached is made for
the benefit of debtors. They may demand as matter of right, on
complying with the requirements of the law in that behalf, to have
their property discharged from attachment and that a bond with
sureties be accepted in its place. Under those circumstances it is
quite obvious that the bond becomes a substitute for the property
released, and where there are no special circumstances to render
the case an exceptional one, it must be held that any judgment that
would
Page 66 U. S. 573
have bound the property, if it had remained under attachment in
the hands of the marshal, will bind the obligors of the bond in a
case like the present, where the suit was commenced against the
partnership upon a partnership contract and the property attached
was partnership property.
Discontinuance as to the partners not within the jurisdiction of
the court was properly allowed under the law of the state and the
practice of the court. Beyond question, therefore, it was a valid
judgment upon a partnership debt, and although it was against the
estate of but one of the partners, still, if the property attached
had not been released, it would have been the duty of the marshal,
under the law of the state and the practice of the court, to have
sold the same and appropriated the proceeds to the payment of the
execution issued upon the judgment. Rev.Stat. Wis. 1849, sec. 41,
p. 539.
Although the other partners were not prosecuted to judgment,
because they were out of the jurisdiction of the court, still the
judgment was rendered upon a partnership debt, to which it would be
the duty of the marshal to apply partnership property in preference
to the debts of the individual partners. Sureties in the bond were
sureties for the partnership for the purpose therein described, and
if compelled to pay the amount, they clearly have a right of action
against all who composed the firm at the time they assumed the
liability.
Gay v. Johnson, 32 N.H. 167; Story on Part.,
sec. 375; Collier on Part., 3d ed., Sec. 713, 630;
Benedict v.
Stevens, 25 Conn. 392
Judgment was recovered, therefore, in this case for the
partnership debt, and if the property attached had not been
discharged, it must have been appropriated to liquidate the
judgment, and we think the bond must be regarded as a substitute
for the property, and consequently that the rulings and
instructions of the district court were correct.
Judgment of the district court affirmed.