The plaintiff Bartlett having a judgment against M. J. Clark & Co., attached their funds in the hands of Merceir, on the 21st April, 1843. McDuffie claims them by virtue of an assignment to him by J. Caldwell and M. J. Clark, made on the 22d of April, 1843. The funds came to the hands of the garnishee in the shape of certificates of state debt issued in the name of Caldwell & Clark, and delivered to the garnishee by M. J. Clark for M. J. Clark & Co., to sell and pay themselves out of the proceeds. Nothing was said as to any surplus that might remain; nor was it then known whether there would be any. The assignment to McDuffie on the 22d April, 1843, was also made by M. J. Clark for Caldwell and Clark. A surplus remained in the hands of the garnishee, and the question on the merits is, whether, as McDuffie alleges, the property belonged to Caldwell and Clark at the time it was attached, or to M. J. Clark & Co. The court below left it to the jury to determine whether there was any such firm in existence as Caldwell and Clark, distinct from Clark & Co., instructing them that if there was, and the property belonged to them, McDuffie was entitled to it. The jury found for the plaintiff, and thereby decided that the property did not belong to any firm of Caldwell & Clark as distinct from *319Clark & Co. If so, it follows that the assignment to McDuffie being made after the attachment, was invalid against it.
But it is argued here, (though the point does not seem to have been distinctly made below,) that the plaintiff could not recover, because the judgment against Clark & Co; was not for a partnership debt, but was a judgment against Clark alone as an individual, and that partnership funds could not be taken under it, at least till the partnership debts were first paid. The nature of the plaintiff’s claim in the suit in which judgment was rendered, does not appear. It may have been for a partnership debt, and the presumption is, it was so, as it was not against M. J. Clark as an individual, but against a firm composed of himself and another person. It is not necessary, in suing for a partnership debt, to name all. the proper partner's, as defendants; for if the party sued does not plead in abatement, a recovery may be had against such' as are sued. It may be therefore for a partnership debt, whether we treat Co. as a nonentity, or as a real name. -It is sufficient that the recovery was against M. J. Clark and Co., and the property attached, came from M. J. Clark & Co., and belonged to them, and therefore, primá facie, the nature of the debt recovered, and the funds attached, were in the same right. The plaintiff therefore gained a legal priority by levying his attachment the day before the assignment. ¡
Judgment affirmed.