
    HUGHES v. BORING.
    In an action against a Sheriff for seizing and selling certain personal property, alleged to belong to plaintiff, under an execution against one Teal, it being averred in the answer that the property belonged to Teal: Held, that evidence tending to prove that it was the partnership property of Teal and plaintiff was proper, and that if they were partners, and as such, owned the property, plaintiff could not recover.
    Appeal from the Fourteenth District.
    Trespass against defendant as Sheriff for seizing and selling goods of plaintiff, under an execution in favor of Bullard against one Teal. Plaintiff avers that he bought the goods of Teal, June 28th, 1859 ; Bullard attached them as the property of Teal, July 15th, 1859. Defendant avers the sale to plaintiff to be fraudulent and void as to Teal’s creditors, and that the goods were the property of Teal, and not of plaintiff.
    Defendant offered to prove that a partnership had existed between plaintiff and Teal. Plaintiff objected to such proof, .on the ground— 1st. That Bullard was estopped from setting up a partnership, he being a creditor of Teal alone, and having recovered judgment against him alone. 2nd. That defendant, in his answer, having alleged the goods to be the property of Teal, could not disprove his pleading. 3rd. That such proof was not pertinent to the issue. Objections overruled, and evidence admitted.
    Verdict and judgment for defendant. Plaintiff appeals.
    
      S. H. Chase, for Appellant.
    
      H. Meredith, for Respondent.
   Cope, J. delivered the opinion of the Court

Baldwin, J. concurring.

This is an action against a Sheriff for seizing and selling personal property alleged to belong to the plaintiff, under and by virtue of an execution against one Teal. The only question which we can notice is as to the admissibility of certain evidence introduced at the trial. It was averred in the answer that the property belonged to Teal, and the evidence which was objected to, tended to prove that it was the partnership property of Teal and the plaintiff. We see no objection to the introduction of the evidence, and cannot understand how the plaintiff could have been taken by surprise. The defendant justified under an execution against Teal, and it was competent for him to show that Teal had such an interest in the property as would defeat a recovery either in whole or in part. If Teal and the plaintiff were partners, and as such owned the property in question, the latter was not entitled to recover.

Judgment affirmed.  