The opinion of the Court was delivered by
Gibson, C. J.The argument at the bar has taken a wider range than the point before us, which involves no more than the levy of the execution on the separate estate of Tassey, one of the defendants and a partner of the debtor firm. The bill on the equity side of the court is no part of the record; and though it is spread on the paper book, it is to have no influence on the question raised by the assignment of error, further than the facts charged may illustrate the injustice and inconvenience of the method attempted in this instance to carry out the remedy, as it is called, provided by the statute, which allows an action to be sustained between distinct firms constituted in part of the same members, some of them standing on both sides of the record as both plaintiff *467and defendant. The statute was enacted, it is said, to provide for a particular case. It certainly went through the legislature without much consideration of its effect, or the difficulties that would be found to lie in the way of its execution; and it shows how inevitably the administration of justice is plunged into disorder by legislative tampering with its machinery. The action authorized by the statute may readily be conducted to judgment; but how it could be thought that a writ of execution might be applied to the persons or the separate estate of the individuals who compose the debtor firm, without doing injustice to some of them, or producing some whimsical absurdity, it would require all the ingenuity of the person who framed the act to explain. It was enacted before the abolition of imprisonment for debt; and to have allowed the judgment authorized by it the full common law effect, would have subjected one of the defendants to arrest on his own execution, but still with the means of regaining his liberty by ordering, in his capacity of plaintiff, his body to be set at large in its capacity of defendant: an operation that would have discharged the debt. Yet a writ of capias ad satisfaciendum could have been issued only against both; and the sheriff would have been as much bound by it to arrest the one as the other. And the same absurdity would appear in the seizure of the separate estate of a party plaintiff in satisfaction of his own execution. It might be avoided, indeed, by directing the sheriff to seize the property of the other defendant; which, though it would be less absurd, would be more unjust. Say that only a moiety of the debt shall be thus levied, and you mitigate the injury, but do not prevent it; for the ultimate justice of the case would depend not on the apparent duty of equal contribution in the first instance, but on the balance of the partnership accounts, which a court of law is incompetent to ascertain; and if the co-defendant were insolvent, as Church is alleged to be, an action or bill against him for contribution would be of little use. It may be said that as a partner’s separate estate is liable at law for the joint debts in an action by a stranger, the misfortune of being compelled by the insolvency of his co-partner to bear the whole burthen, was sometimes felt before the statute in question was enacted. But the solvent partner would not be bound in equity to pay the part of the money which would be coming to the insolvent partner himself; and he would not be bound to pay any part of it whatever, if, as charged in Tassey’s bill as to Church, his co-defendant' owed him a sum equal to the amount of the judgment, and were a' creditor of the plaintiff firm to the same amount.
What effect, then, must we give to such a udgment Its office is obviously to settle the general question of indebtedness between firm and firm, and it was doubtless intended to be followed by execution ; but when we subject the joint effects to seizure, we do perhaps all that was contemplated. That the action was con*468sidered as a proceeding between firms as independent bodies having an existence distinct from the individuals who compose them, seems clear; for the solecism of an action brought by’a man against himself for purposes of self-execution, could scarce have been entertained by the legislature. The Roman law and the codes that have sprung from it, treat a firm as a quasi corporation, and allow it to sustain the relations of debtor and creditor with the individuals who compose it, as well as to sue them and be sued by them; and why may we not carry the principle the same length, by holding that where a judgment is between firm and firm, and not between man and man, the joint property of the debtor firm, like the property of a corporation, is alone liable to execution? It is true the Roman law does not thus dispose of the difficulty; and I am sorry that we are hindered by the stiffness of common law forms from choosing the course pointed out by it ; for it is impossible to satisfy the wants of justice between partners by any management of an execution, or indeed by any common law process whatever. The crude and unwieldy action of account render has been so long disused that it is imperfectly understood ; and the attempt of our legislature to adapt it to modern use has not made it much better. Happily the chancery powers which have been vested in the judiciary will make the statute before us a dead letter, where there’are not joint effects; and where it happens, as it sometimes must, that execution even of the partnership property would work injustice between defendants in circumstances like the present, the partner jeoparded will arrest it by a bill for an injunction and a settlement of the accounts.
Our decision of the point before us is of little importance to the present parties; for were we to restore the execution to its activity, the District Court would be bound to suspend it by such an injunction. The facts charged by the bill in that court would demand it; for if Church is insolvent, and not only indebted to his co-defendant but a creditor of his co-plaintiff, it would be inequitable to let the execution go on. I say this not to forestall the opinion of the able court which has the matter in charge, but to show the injustice of letting the money be recovered of one of the partners at law. The act might as well be expunged from the statute book, since such matters must eventually find their way into equity. We are of opinion, therefore, that the levy was properly set aside; and that Tassey’s separate property cannot be seized till the accounts are taken and the equities settled between the defendants. “
Order setting aside the levy affirmed.