
    John Knox v. L. C. Schepler. James Little v. the same.
    
      Before Mr. Justice Bay, at Charleston, January, 1835.
    The interest °n So partner-coition or be (aSent'at suit of a separate partner, though there is some dif-cases as to the Sí’nterest’shaíi be made liable,
    V¡F“ SOpm.íf¡. o’™> 1,10 partnership er-lcct3¿tll™shith° funds in the Sces,^may “e ordered to be paid over to separate creditors parmertonVthem giving bond ami security to- answer any claim which may after-wards be made <»n the funds.
    
      Foreign attachments. The defendant is the sole surviving partner of the firm of Gable, Cowell & Schepler, late merchants of Bremen; and the debts of the attaching creditors are the private debts of Schepler. The garnishees returned that they had funds in their hands belonging to the absent defendant, as surviving partner of the said firm. A motion was made that the garnishees should be ordered to pay over the monies in their hands to the attaching creditors on their giving bond and security to answer any claims which may hereafter be made on these funds. This motion was resisted on the ground that as the debts attached for were the private debts of one of the partnership, only his share, being the one third thereof, could be liable to their attachments ; while on the other hand it was urged, that all the partnership effects vested by law in the defendant as surviving partner, and were therefore liable to attachment for his individual debts, subject however to demands against the firm, against which the proposed bond was a sufficient indemnity,
    __ . . . _ ¶ , His Honor granted the motion so far only as related to the one third of the funds in the hands of the garnishees; and the plaintiff appealed, and now moved that the order extend to the whole.
    
      
      Hunt, for the motion.
    Gilchrist, contra.
   Harper, J.

That the interest of one partner in the partnership effects, may be taken in execution, or may be the subject of attachment at the suit of a separate creditor of that partner, is not to be questioned, though there is some difference in the cases as to the manner in which that interest shall be made liable. In equity, the interest of a partner in the partnership property, is a share of the surplus that may remain after winding up the affairs of the partnership, and ..paying off all its debts, Taylor v. Fields, 4 Ves. 396; Young v. Keighly, 15 Ves. 357; Moody v. Payne, 2 Johns. Ch. R. 548; White v. Union Insurance Company, 1 Nott & M’Cord, 556. In the case of Schatzill v. Bolton, 2 M’Cord, 478, in which a partnership fund was attached at the suit of the joint creditors of two out of four partners, it was held that the fund was liable to attachment; but a moiety only of the fund, being, 1 suppose, the share which was held at law to be that of the partners as joint owners of the partnership effects, was directed to be paid over to the creditors, and this subject to the equity of the other partners, and the creditors of the firm, and the attaching creditors required to enter into a bond to refund, in case a better claim to the fund paid over should be established.

Then the interest of the defendant Schepler, in the fund now in dispute, is liable to the plaintiff’s attachment.- What is that interest ? Certainly at law, he, as surviving partner, is the owner of the whole fund. There is no other person entitled to receive it or any part of it from the garnishees. Can we go into an investigation of the equities which may exist against it. Can we determine that there are creditors of the firm having a better claim to this fund ? or that, upon a final accounting with the representatives of the deceased partners, the absent defendant may not be found a creditor of the firm, and entitled to retain all.that he has- in his hands; or, indeed, that there has not been a final accounting, as the partnership seems to have been long dissolved? The plaintiffs have a right to have the fund paid over to them, but they can only take it as the absent defendant had it, that is to say, subject to the equities of the other partners, and of creditor^ of the firm. They must therefore, as they have proposed, enter into bond to answer any claim which may be hereafter made on this fund.

The motion is granted. Costs to be paid out of the fund.

JohNson and O’Neatj., Js. concurred.  