The plaintiff has misconceived the nature of the judgment ordered. A judgment against X in his capacity as surviving partner of the firm of X Y is a properly expressed judgment "against the partnership." Such a judgment is conclusive evidence of the nature of the debt sued upon, and entitles the plaintiff, in the levy of execution, to take any partnership property, and to hold the same against any creditor of an individual partner. Benson v. Ela, 35 N.H. 402.
"Where one of two partners dies, suits at law for partnership debts must be against the surviving partner alone; but in that case the partnership property still remains as a separate fund for the payment of the partnership debts." Gay v. Johnson, 32 N.H. 167, 170. See also Moody v. Lucier, 62 N.H. 584; Weaver v. Weaver, 46 N.H. 188; Tenney v. Johnson,43 N.H. 144.
If, as seems to be alleged, the administratrix claims the property in her hands as that of her decedent, the issue raised cannot be settled by any alteration of the form of the present judgment. It is the ordinary situation of property claimed by two. If it is open to levy, the plaintiff can seize it, and must thereafter stand behind the sheriff in the administratrix's suit against him. If it is not open to levy, the plaintiff may resort to the usual equity proceeding to reach concealed assets. Other forms of relief may be available; but the fundamental factor, conclusively established by the judgment ordered, will remain constant. The debt recovered upon is a partnership obligation. Benson v. Ela, supra.
Former result affirmed.
All concurred. *Page 537