The opinion of the Court was delivered, by
Woodward, J.It is established by the verdict, that the goods levied on by the sheriff were partnership property; that they belonged not to Archer, the defendant in the execution, but to Bogue & Archer, as partners in the livery stable business.
The defendants on the trial asked the Court to say, that if, at the time of the levy, the property levied on was the joint property of Bogue & Archer, the plaintiff cannot recover. The Court declined to give such instruction; but ruled,
1st. That the sheriff, though he had a right to seize and make an inventory, had no right to take the goods out of the plaintiff’s possession and deliver them to the purchaser.
2d. That the proper mode to take advantage of the fact that the plaintiff was not sole owner of the goods, was by plea in abatement, which was too late after the general issue pleaded.
These opinions are assigned for error.
That a sheriff, acting under an execution at the suit of a judgment-creditor of one partner, can sell and deliver no part of the partnership goods, but only the contingent interest of the debtor partner in the stock and profits after settlement of partnership accounts and payment of partnership creditors, is a conclusion that results necessarily out of the principles of the partnership relation, and is sanctioned by a great number of modern decisions, both in England and the United States. What are some of the principles of this relation ? It is a contract relation, and therefore no partner can be introduced into it except upon consent. A purchaser at a sheriff’s sale of a partner’s interest becomes a tenant in common with the other partners, so far as to entitle him to an account; but he does not become a partner. On the contrary, the sale works a dissolution of the partnership, as completely as the death, insanity, or bankruptcy of a partner will do.
Partners are joint tenants of all the stock and effects employed in their business. No partner can have a separate interest in any part of the property belonging to the partnership, though each has an entire as well as joint interest in the whole of the joint property. A levy, then, to affect the interest of a partner, cannot touch a specific proportion of the goods, nor the whole, because others have property in every part, as well as the whole, coupled with a right, resting in contract, to use them for the purposes for *234which the partnership was instituted. The only levy that can be made, consistently with the relation the partners sustain to the goods, is of the debtor’s interest in the whole, and that is 'to be measured by final account.
Again, it was a principle of the Roman law, and it has been acknowledged in the jurisprudence of England and the United States, that partnership creditors must be first paid out of partnership property. Chancellor Kent thinks the basis of the rule is, that the funds are to be liable on which the credit was given— an opinion which Chief Justice Gibson questioned in Doner v. Stauffer, 1 Penn. R. 204.
But whatever the grounds of the rule, there is no question concerning the rule itself. It is constantly recognized in distribution of assets, and is the vital element in the contract of partnership which gives it confidence with the public. But if a sheriff may deliver the goods of a firm to purchasers in pursuance of a sale made, not for a partnership debt but for a debt of one of the partners, what becomes of the equity of joint creditors? They are not in Court to contend for the purchase-money, and, if brought in and their claims adjusted, that is not the fund to which they gave credit and on which they have a lien. They are creditors of the partnership, and their lien relates to the interest of all the partners in the whole stock, and they cannot be compelled to look to any less security. Or, shall they follow the goods sold into the hands of the purchasers ? This, in most instances, would be impossible, and always it. would be substituting another and an inadequate security for that which they looked to when credit was given to the firm. Thus would the fundamental principles of this beneficial relation be subverted if a sheriff were permitted to seize and sell the whole or part of the stock, in specie, on an execution against one partner.
But it is as clear, upon authority as upon principle, that the Court were right in denying the power of the sheriff to sell and deliver the goods. In Taylor v. Fields, 4 Vesey 369, the facts of which case are more fully stated in a note to Young v. Keighly, 15 Vesey 559, Chief Baron McDonald laid it down that the party eoming in right of the debtor partner, comes into nothing more than an interest in the partnership which cannot be tangible, cannot be made available, or be delivered but under an account between the partnership and the partner. To the same effect is the language of Judge Gibson in Doner v. Stauffer, 1 Penn. R. 198, and in Kramer v. Arthurs, 7 Barr.
See also Story’s Equity, vol. 1, p. 626-7, and the cases cited.
Stock in incorporated companies may be levied in execution and sold on fi. fa.: Lex v. Potter, 4 Harris 295, and yet nobody ever supposed that the property represented by that stock, or any part of it passed to the purchaser. Even in the sale of land the *235sheriff delivers not the defendant’s possession, but only his title.' It is a distinct proceeding that puts the purchaser into possession, and if the sheriff should deliver possession upon his venditioni exponas, he would be ajtAespasser. The ruling of the Court, therefore, was in accordance with the principles and analogies of the law as well as with its authorities.
As to the other point in the charge, the Court wer.e unquestionably right. The plaintiff claimed to be the sole OAvner of the goods, in virtue of a purchase of his partner’s interest between the time of the levy and the sale, and, to the action instituted in his own name, the defendants pleaded not guilty. After this, it was too late to plead the nonjoinder of the other partner in abatement, and yet it was only by such plea advantage could be taken of the nonjoinder. If one of several part owners sue alone in trespass, the defendant can only take advantage of it by plea in abatement, though the defect appear on the declaration: Addison v. Overend, 6 Term R. 766.
Another ground of defence was, that the plaintiff could not recover against the three defendants jointly. The sheriff and his deputy were liable virtute officii, for an illegal execution of the writ. If the plaintiff in the execution had merely issued his writ, and left the sheriff to execute it without instructions, I do not say he could have been made liable as a trespasser; but it was in evidence that Jeffries, the plaintiff in the execution, was present at the sale, and bought two of the horses. This was such participation as to make him a trespasser, and he was well joined in the' action.
It was contended in the argument that there was no evidence of the delivery of the goods by the sheriff, and, as the Court held that the trespass consisted, not in levying on the goods, but in the sale of them, they should have instructed the jury that a sale without delivery was not a trespass.
Frederick Dick swore he was present at the sheriff’s sale. Seven or eight horses, several vehicles, and six or seven sets of harness were sold; that Tustin told him the amount of the sale was $1144; that Jeffries bought tAvo horses; “the articles I saw go aAvay. Bogue’s establishment was broken up. The goods Avore delivered to the purchasers.”
Rutter says the goods were sold out under the execution; and the return of the sheriff on the fi. fa. shoAvs a sale of the goods and not of the interest of Archer.
Now, in view of such evidence, what other presumption Avould be reasonable than that the sheriff delivered the goods to the purchasers ? If the defendants wanted the opinion of the Court on the question whether such evidence proved a delivery, they should have asked for it. In the absence of a prayer, the Court were in no error in submitting the evidence without instructions to the *236jury. But had the defendants sought and obtained instructions, they must have been unfavorable to them, and therefore they have no cause to complain. In the admission of the paper of 8th January, 1850, and in the use that was made of it on the trial, we see no error.
On the whole, no error is discovered in this record, and the judgment is accordingly affirmed.