Gibson vs. Stevens, 7 N.H. 352

Parker, J. It seems that a partnership may be continued after the death of one of the partners, when such is the express agreement. 9 Ves. 501, Balmain vs. Stone; Gow on Part., 271. It is evident that such partnership must be of a limited character, and it is doubtful if it can be termed a partnership where the business is carried on by a single survivor.

It can only extend so far as to authorize such survivor to employ the funds, and continue the trade, and perhaps in some cases to charge the estate of the deceased partner ; but cannot authorize him to pledge the individual credit of the representatives, or heirs of the deceased partner, without their consent.

If, on provision for that purpose, the executor, or heir elected to come in, and undertake the management jointly with the survivor, such act would be the foundation of a personal liability ; but, otherwise, the debts contracted after the decease could only be a charge upon the fund and the personal credit of the survivor, unless provision was made for charging the other estate. 7 Conn. Rep. 307, Pitkin vs. Pitkin; 10 Ves. 110, exparte Garland; 1 Man. & Sel. 412, Wightman vs. Townroe; 8 Conn. R. 584, Alsop vs. Mather.

If here had been a partnership, and Greenleaf by the will became interested as a partner, this defence could not be maintained. As a partner, all his interest in this case would be a portion of the profits of the trade. And on an execution against him personally, if a levy could be made upon any partnership interest, it could only be upon his right as a partner — ■ that is, his interest in such profits. The specific property of a partnership cannot be lawfully taken and sold to satisfy the private debt of one of the partners.

His creditor can have no greater right than the debtor himself has individually, which is a right to a share of the surplus. This is the necessary result of the doctrine, that the partnership property is a fund in the first place for the payment of the partnership debts, and that the interest of an individual partner is only his share of the surplus. Vide the cases collected, 5 N. H. Rep. 192, 193, 250; 9 Conn. Rep. 410. There are difficulties in selling the interest of one partner upon an execution.

Courts of equity first direct an account, which courts of law cannot do ; and if the interest of one partner may be sold upon an execution at law, it must be left to an account afterwards. Gow on Partnership, 246 et seq. 254.

And a question may arise in such case, whether the sale operates as a dissolution of the partnership before the time limited by the articles of copartnership, or whether the other partners are authorized to carry on the trade and account at the expiration of the term, If the sheriff can sell only the interest of the partner, and not the goods, he must be liable if he make actual seizure of the specific property, either to the partnership or the other partners. 2 Johns. 280, Wilson vs. Conine. Especially if he sell the whole, as in this case. 1 Gall. Rep. 370, Lyndon vs. Gorham and Trustee; 15 Mass.

Rep. 82, Melville vs. Brown. There can be no objection to an action by one of the partners alone, if abatement is not pleaded, it being ex de-licto. 1 C kitty's PI. 53. And if the partners could not join in an action, upon the ground that the one who was debtor could not object, (which is not admitted) it would seem that the other partners must have a right to recover the whole property, for the use of the partnership, for they are liable for the whole debts, and the entire property may be required to discharge them. They might certainly recover the value of their shares.

If, therefore, this was a case of partnership, as has been contended, there would seem to be no objection to the recovery of the plaintiff, to the extent of his share. But we are not required at this time to settle the principles of this somewhat difficult branch of administering the law. There was here no partnership, so far as the rights of the parties in this ease are concerned. None existed before the decease of John Gibson, nor does it appear to have been his intention to create one.

It is difficult to perceive how he could have done it, had he attempted it — how it could have been in his power to make a partnership between Greenleaf and his children, who were minors. He might bequeath his property under such charges and limitations, and subject to such trusts, as he pleased. He might have made the fund subject to debts contracted by the trustee in managing it, and perhaps have charged his other estate, had he elected so to do.

He might, with the assent of Greenleaf, have so ordered it that Greenleaf in contracting debts on account of the concern, would have made himself liable to the creditors, as if he had been a partner. Possibly that may have been the case under this trust. But Greenleaf very clearly was not a partner as respects his own private creditors, in such a maimer as to give them a right to interfere with the property held in trust. The provision in the will constituted a trust, and provided for the compensation of the trustee, by giving him. instead of a sum certain, a share of the profits.

He was entitled to nothing except the share of the profits; and it might be questionable whether he could legally take that, even as compensation, until an account was taken, and the matter adjusted by those who owned the property. He had aright to receive, or retain in his hands upon settlement, to the amount of one half of the profits, as for a debt due to himself, for managing and superintending the trust. That no interest in the property was vested in him, is farther apparent from the clause providing that the executors in a certain event might withdraw the whole property from his possession.

The power of attorney from the plaintiff, authorizing Greenleaf to proceed as he had done under the will, does not alter the case. He was still acting as agent and trustee. If any question was made at the trial, whether the articles in controversy were originally purchased by D. Green-leaf on his own account, or in such manner that they became his exclusive property, the verdict of the jury has negatived such a position, as a matter of fact, and there is nothing in the case to show that they became so by matter of law. It might have been necessary to take them in payment of the debts.

The only other question is respecting the damages. The direction of the court, in the terms in which it was expressed, cannot be supported. The plaintiff is entitled to no more because he purchased and gave a certain price, than he would have been had any other person purchased. He received by the goods -a compensation for the price he paid for them. But he is entitled to one half of the value of the goods; and we see no objection to the result. The value of the goods was the amount they were worth, and the defendant cannot complain if that value is assessed by the amount he received upon the sale.

He is not entitled to make a profit on them, and the plaintiff may claim to the extent that the direction authorized, though not for the reason given. The error in the direction, therefore, furnishes no ground for a new trial. Judgment on the verdict.