In re Chipman — 14 Johns. 217

Majority

p. 217

In the matter of Cyrus Chipman, an absconding debtor.

NEW YORK,

May, 1817.

Headnote

An attachment; under the ad for ren<f against "b-. ™s debtors, may issue against the “®”’dsiS" <ia>t partnership, partnere'síe the state, an<5 üirested.

THIS was a motion for a mandamus to the recorder of the . , r 7 ,. . , . . city and county oí Js cw-Yorlc. directing him to issue a warrant ° . sentandabssond-oi attachment^ in pursuance of the act for giving relief against * o o o absconding and absent debtors. It appeared, that the usual proofs of the demand of the creditors, and of the absconding of the debtor, had been presented to the recorder, but that he had to issue the warrant, on the ground, that the demand was against Chipman and others, as copartners, and that two of the firm, of which Chipman was a member, remained within the

p. 218

state, liable to be arrested by ordinary process of law. It was however stated, that they were insolvent.

in behalf of the application, contended, that the act was to be beneficially expounded in favour of creditors ; that in case of a demand against a copartnership, each partner is to be considered a debtor for the whole amount, and that his person and property are liable therefor accordingly. That the statute in question authorizes the creditors to attach the property of any absconding or absent debtor, without limitation, and that the circumstance that such debtor has partners resident in this-state, can make no difference, especially, where such partners are insolvent. That, to engraft such a limitation on the construction of the statute, and to hold, that the presence of one, or more, of an indebted firm, would protect from arrest the property of those who had absconded, or were absent, might open a door to fraud and collusion. He cited Crispe v. Peririt, ( Willes' Rep. 467.) where it was held, that the creditor of a firm may, for such joint debt, take out a separate commission of bankruptcy against one of the partners; which case, as the counsel contended, was analogous in principle to the one under consideration.

The Court were of opinion, that an attachment might be taken out against the property of an absconding, or absent partner, for a debt due by the firm, although other partners belonging to the firm were resident within the state, and capable of being arrested; and they accordingly directed the mandamus to be issued.

Motion granted.