ABELS a. WESTERVELT

ABELS a. WESTERVELT. Supreme Court, First District; General Term, Sept., 1862. Peiobity of Obeditobs.—Defect in Execution.—Amendment., An execution against joint-debtors has priority over an attachment against one of the debtors, though the attachment is also for a joint debt. Defects in an execution which would be amendable on motion cannot be taken, advantage of by a creditor with a junior execution. What defects in an execution are amendable. Appeal from an order. Judgment was recovered in this action by Joseph Abels against Isaac H. Westervelt and Henry Camp, on the 9th October, 1861, for $947.11. An attachment had been issued against the property of Westervelt, as a non-resident, September 11th, 1861, and about the same time levied on the partnership property of Westervelt and Camp. Execution was issued immediately upon the recovery of the judgment. On the 1st October, 1861, one Russell W. Westcott obtained judgment for $500.44 against Westervelt and Camp, in the Marine Court of' the city of Hew York, Camp alone being served, and, after filing transcript, issued execution, reciting that a judgment was recovered in the Court of Common Pleas, “ as appears by the judgment-roll filed in the office of the clerk of the city and. county of Hew York.” There was no indorsement upon the-execution excepting the individual property of Westervelt from, levy. The sheriff realized $373.48 from Westervelt and Camp. The plaintiff applied for an order that this amount be paid to him before applying any amount in favor of Westcott. The motion was denied, and plaintiff appealed. Nelson Smith, for the appellant. I. Notwithstanding Stoutenburgh a. Vandenburgh (7 How. Pr., 229, 233), we contend that in a suit against copartners to recover a copartnership indebtedness, in which an attachment is issued-against but one of the defendants; the copartnership property may be attached. 1. If this attachment had been issued upon the individual indebtedness of Westervelt, the sheriff would have had the right to attach the defendant’s copartnership property and take it into his possession. (Horgman a. Dettlebach, 11 How. Pr., 46.) The sheriff’s right under such an attachment is as great as under an execution against one partner for his individual debt. (Ib.; Waddell a. Cook, 2 Hill, 47; 3 Den., 125.) 2. This attachment was issued in a suit against copartners for a copartnership debt, and by the Code, § 227, the plaintiff was entitled to have the property of the defendants attached, as security for the satisfaction of such judgment as he might recover in the action. 3. The plaintiff has recovered a judgment in the action, so that he is entitled to have it satisfied out of the joint property of the defendants or the separate property of either. 4. The attachment is a security for such judgment as the plaintiff may recover. The plaintiff subsequently recovers a judgment, which he is entitled to have satisfied out of the defendant’s joint property. II. The execution in favor of Westcott was irregular and void. 1. The statute requires that the execution shall state the court in which the judgment was recovered, the county where the judgment-roll or transcript was filed. (Code, § 289; Park a. Church, 8 How. Pr., 381, 383.) 2. The execution states that the judgment was recovered in the Common Pleas, and that the judgment-roll was filed in the county clerk’s ofiice. There was no such judgment. An execution, without a judgment to support it, is void, so where the judgment has been satisfied.' (McGuinty a. Herrick, 5 Wend., 240.) 3. The judgment in the Marine Court was recovered upon the service of process on only one of the defendants, and no indorsement was made on the execution as required by statute. (2 Rev. Stat., 377, § 3.) 4. The execution was void on its face. 5. This court has no power to amend the execution even were it amendable. III. But if Westcott’s execution was regular, and the plaintiff not entitled to the whole amount in the sheriff’s hands, he is, to say the least, entitled to a moiety of the same. 1. The respective shares of the defendants in the copartnership property not affirmatively appearing are presumed to be equal. (Gould a. Gould, 6 Wend., 263, 267.) 2. The plaintiff’s attachment, as respects Westervelt’s interest in the property, was prior in point of lien to Westcott’s execution. This lets in the doctrine that where the equities are equal the legal right prevails ( Willard’s Eq. Jur., 45), which would give to the plaintiff Westcott’s moiety. Oliver S. Ackley, for the respondent. I. 1. It is true the attachment of Abels was issued in a suit against Westervelt and Camp, upon a partnership claim, but as Westervelt only was a non-resident, his property only could be attached. (Code, § 289.) 2. In the attachment in this case, the sheriff is commanded that he attach the property of Isaac ET. Westervelt only; it was therefore no Hen upon the copartnership property of Westervelt and Camp. The rights of the attaching creditor must follow his writ, and his Hen extends only to the- property which has been actually subjected to attachment. (Drake on Attachment, 226.) 3. The plaintiff’s Hen so far is only upon Westervelt’s interest. (Stoutenburgh a. Vandenburgh, 7 How. Pr., 229.) ETo greater right could be acquired in the attached property than Westervelt actually had. (Drake on Attachment, 245.) 4. It is a universally acknowledged principle, that the interest of a partner cannot be tangible, cannot be available, or delivered, or applied, except upon an accounting between the partnership and the partner, the interest of each partner being his portion of the residuum after all the debts and liabilities of the firm are discharged. (Young a. Keightly, 15 Ves., 559, 560; 1 Parsons on Contracts, 175; Drake on Attachment, 569.) II. But it is claimed by the counsel for the plaintiff Abels, that if he is not entitled to the money in question, by virtue of his attachment and execution, that he is entitled to a moiety or half part of the same. 1. The question of moiety, as here raised, does not present any other or different principle for consideration from that already stated. 2. The principle of moieties in cases of this kind formerly prevailed both here and in England, but now, either upon an attachment or on execution, when it becomes necessary to determine the priority of liens, the law is well settled in both countries, in accordance with the principles above stated, and the principle of moieties is not recognized. (Parsons on Contracts, 176,177.) III. The objection that the execution in the case of Russell W. Westcott a. Westervelt & Camp is irregular and void is not well taken. 1. It was not necessary that any record of the judgment of the Marine Court in that case should appear in the clerk’s office of the Court of Common Pleas. 2. The fact that Westcott’s execution recites that the judgment-roll is filed in the office of the clerk of the city and county of Rew York, instead of the transcript, is not such a defect or irregularity as will tend to lead astray or prejudice the rights of any party. 3. The statute relating to the form of the execution is merely directory, and it is sufficient if it substantially follow the terms of the statute. (Pierce a. Craine, 4 How. Pr., 257; Park a. Church, 5 Ib., 381; Chichester a. Cande, 3 Cow., 39; Stephens a. Browning, 1 Code. R., 123; Sears a. Burnham, 17 N. Y., 445.) [MAJORITY — By the Court.—Rosekrans, J.] By the Court.—Rosekrans, J. The order of the special term should be affirmed. Westeott obtained a judgment in the Marine Court against the defendants upon a debt which they owed as partners. A transcript of this judgment was filed on the first day of October,. 1860, in the office of the clerk of the city and county of Rew York, and an execution issued on the same day to the sheriff of that county, who levied upon the partnership property of defendants and sold it, and realized the fund which is the subject of this motion. The plaintiff in this action obtained his judgment several days after Westcott’s execution was issued. He claims, however, the money in the sheriff’s hands should be applied to the payment of his judgment, because, in September, 1860, he obtained an attachment in his action against Westervelt and Camp, directing the sheriff to attach the property of Westervelt alone, the attachment having been issued upon an affidavit that Westervelt was a non-resident of the State, and that by virtue of that attachment the sheriff seized the property sold on Westcott’s execution several days before Westcott obtained his judgment. Row it is well settled that upon an attachment against the property of one partner, the sheriff can only seize the interest in the property of the defendant in the attachment, and that interest, in the case of partnership, is the share of the partner in the surplus of the property after the payment of the partnership debts. The sheriff could not, under Abels’ attachment, take the property of the partnership, which was sold on Westcott’s execution. Camp, as partner, was entitled to retain it for th¿ purpose of paying the debts of the partnership. (In the matter of Smith, an absconding debtor, 16 Johns., 102; Stoutenburgh a. Vandenburgh, 7 How. Pr., 229; Sears a. Gearn, Ib., 383.) The execution of Westcott has a priority over the attachment of Abels. All of the defects in the execution of Westcott which are urged by Abels are amendable, and cannot be raised by any one except the defendant in the execution. The order of special term is affirmed, with costs. Ingraham, P. J., and Leonard, J., concurred.