The opinion of the court was delivered by
Sergeant, J.Though at the first impression the provisions of this act, in the 70th and following sections, seem to apply to the case of partnership property, and to render that liable to the attachment levied on the absent partner, at the same time that a summons or capias is served on the other partner, yet from a full and careful consideration of the law, we are satisfied that it was not intended for such a case. The defect.which the law seems to have intended to remedy was, that in a suit against two joint debtors, of whom one was absent, if a summons or capias were served on the other, and judgment rendered against him, the separate property of the debtor not served, could not, by our ordinary mode of proceeding, be levied by execution, nor could it originally have been levied on by attachment, because one defendant being resident, attachment would not lie in the joint suit. But there was no defect in regard to the partnership property in such case, for it was clear that on a judgment against one partner, for a partnership debt, obtained in a suit against both by a partnership creditor, the partnership property could be levied on by execution, and applied to the payment of the partnership creditor. There was no need of any amendment of the law in this case to help the creditor; he had the same remedy that he had in other cases, as to the partnership property. But the defect was in the creditor’s disability to take the separate property of the non-resident partner, and it is for this purpose the act enables him to join in the suit, a summons or capias against the resident partner, (which would reach his separate property and also the partnership,) and an attachment against the separate effects of the absent partner to make them ultimately responsible, unless discharged by appearance or otherwise. This places partners, where one is absent, on the same footing as those are of which all the members of the firm are present; whereas the construction con*222tended for by the appellees, would subject the property of every partnership, where one of the firm was non-resident, to be seized at once by attachment, though the others were here ready to answer to process against the firm. Besides the 73d and 74th sections seem to contemplate this construction. The former makes the property of the defendant appearing, (which embraces the partnership as well as his own,) liable before the property attached: and the 74th section authorizes, if the court see cause, an execution in the first instance against the property attached, saving their respective rights in it as to each other, considering it as somethingdistinct from the partnership property.
Decree reversed, and decree made accordingly.