
    Barker against The President, Directors and Company of the Hartford Bank:
    IN ERROR.
    Partnership property cannot be taken or applied, by process of foreign attachment, for the satisfaction of the separate debt of individual partners, . to a greater amount than the interest of those partners in the partnership, after the payment of all the partnership debts.
    Where A., B. and C. were partners ; and after the death of AB. and C, ⅛ recovered a judgment against D. founded on a partnership transaction » .. E.j a creditor of B. and C., then brought foreign attachment to recover the debt of D., and introduced the judgment against him to prove his indebtedness to B. and C.; it was held, that the representatives of A. were not precluded, by such judgment, from shewing that B. and C. -were debtors to the partnership and had no interest in the debt against D., but that it belonged to A. alone.
    This was a scire-facias in a process of foreign attachment, in favour of The President, Directors and Company of the Hartford Bank against Bulhley .P. Barber, founded Upon a judgment against Walter E. Heyer and Jacob Burdett, late merchants in company under the firm of Heyer Burdettt in which they were described as absent and absconding debtors, and Barber was cited as their debtor.
    The heirs and legal representatives of Garrit Heyer, claiming to be the owners of the debt due from Barber, appeared and pleaded, that Barber was not the debtor of Heyer and Burdett, as claimed by the plaintiffs, in their declaration ; on which issue was joined.
    The cause was tried, on this issue, at Hartford, September term, 1832, before Hosmer, Ch. J.
    The plaintiffs introduced a judgment of the superior court, in favour of Heyer and Burdett against Barber, for the sum of 947 dollars, 99 cents, damages, and 33 dollars, G9 cents, costs, as evidence, and conclusive evidence, that Barber was then the debtor of Heyer and Burdett to that amount. To . . . , . ... counteract this evidence and to support their plea, the representatives of Garrit Heyer proposed to give in evidence four drafts, which they offered to shew were drawn by Barber on his own account, on the house of Heyers, Brimner Burdett, consisting of Garrit Heyer, Walter E. Heyer and Jacob Burdett; that they were accepted by that company, and were the foundation of said judgment. They also offered the testimony of sundry witnesses tending to prove, that Garrit Heyer died, after the drafts were accepted and before they were paid ; that Walter E. Heyer and Burdett continued the business of the company, and paid the drafts out of the property of Heijers, Brimner ⅜ Burdett ; that Garrit Heyer, at the time of the acceptances, and afterwards down to the time of his death, was the real owner of all the property helddny the, company, Walter E. Heyer and Burdett being both largely indebted to the company, having drawn out more property than they wrere entitled to ; and that when the judgment was rendered against them, they were not the owners of the debt against Barber, except merely as surviving partners. They also offered proper evidence to shew, that they had obtained from the court of chancery in the state of JV'eto-York an injunction against Walter E. Heyer and Burdett, enjoining them against collecting, receiving or using any of the property or effects of the company of Meyers, Brimner Burdett, and that such injunction remained in force. This evidence being objected to, by the plaintiffs, the judge refused to receive it, on the ground that the judgment was conclusive upon all persons of the indebtedness of Barber to Heyer and Burdett, and the evidence, if admitted, would attack the judgment.
    The plaintiffs obtained a verdict; and the defendant, in behalf of the representatives of Garrit Heyer, having filed a bill of exceptions, brought the case before this Court, by writ of error.
    
      W. W. Ellsworth, for the plaintiff in error, contended,
    I. That the enquiry who is the equitable owner of the debt due from the garnishee, is a proper one, in the process of foreign attachment ; this being substantially a bill in chancer}. Lynden v. Goi-ham & al. I Gallis. 367. 370. Willard v. Slur-
      
      tevant & al. 7 Pick. 194. 196. & seq. Winch v. Keeley, 1 Term Rep. 619. 622.
    2. That a partnership debt cannot be attached or appro-printed, by one partner, to pay his own debt. Church & al. v. Knox & al. 2 Conn. Rep. 514. 516. Canfield v. Hard & al, 6 Conn. Rep. 180. 184. Brewster & al. v. Hammet & al. 4 Conn. Rep. 540. 542. Lyndon v. Gorham & al. 1 Gallis. 367. 370.
    | 3. That on the facts claimed, IF. E. Heyer and Burdett are trustees only, and cannot, by judgment or otherwise, ap- ' propriate the effects of the house of Heyers, Brimner ⅜ Co. To do it would be fraud. 1 Gallis. 370. 6 Conn. Rep. 184. I 4. That the effect of the evidence offered was not to :j attack the judgment, but merely to shew whose it was. In I the case of an assignment by act of the party, this may be done. Why not in the case of a trust? — We do not dény ■: the existence of the judgment or impeach its validity. The debt could be recovered only in the names of the surviving partners. We only claim, that the judgment thus rightly obtained, belongs to us.
    
    
      llungerford and F. Parsons, for the defendants in error,
    insisted, That the judgment in question was conclusive evidence, not only of the right, but of the fact which it decided, viz. the indebtedness of Barber to Heyer and Burdett, and that the evidence offered by the opposing party, went to overturn such right and to disprove such fact. The avowed object of this evidence was to “ counteract” the record evidence. 6 Mass. Rep. 286. 3 Stark. Ev. 1069.
   Daggett, Ch. J.

The rejection of the evidence presents the question now to be considered and decided.

It will be recollected, that we are upon a question whether equity demands, that the money due from Barber should go to pay the debt of Heyer and Burdett to the Hartford Bank, I or should belong to the heirs of Garrit Heyer ? Is there any insurmountable objection to directing, that this debt j should belong to the heirs of Garrit Heyer ?

j In the construction of our statute respecting foreign attachments, the decisions have always been, that debts bona fide assigned should go to the assignees. Had Walter E. Heyer and Jacob Burdett held a bond, in their own names., against E. P. Barber, and had they assigned that bond to the heirs of Garrit Heyer, could it have been afterwards collected by them, or could the heirs have had a right to recover the amount of it, using the names of the obligees 1 As to this question, since the case of Winch v. Keeley, 1 Term Rep. 619. there can be no doubt.

But by no rule of law can the partnership property be taken or applied for the satisfaction of the separate debt of any one of the partners, to a greater amount than his interest in the partnership, after the payment of all the partnership debts. Lyndon v. Gorham & al. 1 Gallis. 367. Fisk & al. v. Herick & al. 6 Mass. Rep. 271. Fox & al. v. Hanbury & al. Cowp. 445. Church & al. v. Knox & al. 2 Conn. Rep. 514. Brewster & al. v. Hammet & al. 4 Conn. Rep. 540.

This leads to an inquiry, what interest had Walter E. Heyer and Jacob Burdett in this debt against Barber, or in the copartnership property of Heyers, Brimner Sf Burdett The answer mhst be, that if the evidence which was offered had been received, it might haye shewn, that they had none at all; for this, as the bill of exceptions finds, was its tendency.

But it is said, that the judgment stands in the way; for that it appears, that Barber owed Walter E. Heyer and Jacob Burdett, and not Heyers, Brimner Burdett. But is there any thing more sacred, in this respect, in a judgment, than in a bond l It was decided in Massachusetts, that where it appeared, by the answer of the defendant in a trus tee process, that part of the bond belonged to others than himself, though nothing of the kind appeared on the face of the bond, that he should not be charged for such part. Willard v. Sturtevant & al. 7 Pick. 194.

But how is this judgment conclusive on these heirs ? Nei iher they, nor the legal representatives of Garrit Heyer, are parties to it. The plaintiffs in it did not even style themselves surviving partners; and had they so described themselves it would not have concluded these defendants. Sturges Beach & al. 1 Conn. Rep. 507.

This case, in its aspect on the heirs of Garrit Heyer, pre sents such an inequitable demand, that it cannot be sustainec It presents a claim to enforce a judgment against Barber for i debt due to Walter E. Heyer and Jacob Burdett, when it is very apparent, that had the eviden9e offered been admit- ■ ted, he did not owe them a cent, but the whole amount is due to the representatives of their deceased partner. I am, therefore, glad, that there is no insuperable objection to. doing justice in the cause, and to giving a direction to the debt to be paid where it is equitably due.

The judgment must, therefore, be reversed.

Peters, Bissell and Church, Js. were of the same opinion.

Williams, J. gave no opinion, being a stockholder of the Hartford Bank.

Judgment reversed.  