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the bar, and has frequently been acknowledged by the court to furnish an inadequate and impracticable remedy. One of the first to object was the individual who was perhaps most largely instrumental in securing its adoption by our court, viz., Mr. Bell, who, in 1855, as a member of the supreme court, delivering the opinion in Hill v. Wiggin, 31 N. H. 292, used this language:

"The effect of these decisions has practically been to exempt partnership property from any liability for the debts of the individual partners, and many embarrassed debtors, as might be expected, own no property except in partnership, and creditors find themselves unable to reach the property of their debtors, however ample it may be, from the want of any process by which it can be readily and effectually seized and applied. The mischiefs and inconveniences resulting from the present state of the law, seem to be of a serious character, and the long list of cases cited by the plaintiff, in which the court have had occasion to consider this question, might, perhaps, be regarded as evincing the unwillingness of the profession to acquiesce in these decisions. But the doctrines laid down in these cases are still held by a majority of the court, and they must, therefore, be regarded as the law for the present case.

"By the practice of the courts of this state, until a recent period, and by the law as it had always been understood, and as it is still held elsewhere, it was, undoubtedly, the practice to levy an execution against one of several partners, upon all or a part of the goods which belonged to the partnership."

The doctrine of Morrison v. Blodgett has been re-affirmed in Dow v. Sayward, 12 N. H. 271; Treadwell v. Brown, 43 N. H. 290; Garvin v. Paul, 47 N. H. 158; Tucker v. Adams, 63 N. H. 361, and numerous other cases. But the court have frequently felt called upon to comment upon the imperfect working of the law as established by their decisions, and to ask for relief by legislation from the diffi

culties which they recognize, but are powerless to obviate. Thus in Garvin v. Paul, cited above, Nesmith, J., says:

"A sheriff, upon a demand against one partner for his private debt, cannot seize the goods of the partnership and exclude the other partners from the possession the practical result of our decisions on this subject is to delay the creditors holding private claims against one of the partners." And again:

"We have, in practice, no adequate prompt compulsory power, binding the partners to close their partnership accounts within any reasonable time, so as to present, or set apart, the surplus fund for the satisfaction of the claims existing against the several partners in their private capacity. Abuses of this kind are well known to exist, and legislative redress is called for now, as it has been heretofore."

And even in the original case of Morrison v. Blodgett, the court remark that "there are other difficulties attending this subject, some of which cannot, perhaps, be fully obviated without legislation."

The court have, at various times, suggested methods of procedure by which it was hoped that attachments of this nature might be made effectual. In the first place, they have held that the mere fact that the sheriff cannot take possession of the goods, does not prevent his making a valid attachment, by giving such notice as the nature of the case will permit.

Then in Dow v. Sayward, it was intimated that possibly an injunction would be granted to restrain the debtor or his partner from acts tending to defeat the purpose of the attachment. And in numerous other cases it is suggested that the attaching creditor may get such a lien as to entitle him to a bill praying for an account. Treadwell v. Brown is often cited as an authority for the proposition that the attaching creditor obtains a lien sufficient to entitle him to equitable relief, by decree of dissolution, or by injunction if necessary. But, as a matter of fact, the plaintiff's bill in

that case was dismissed on the express ground, among others, that it did not appear that he was a judgment creditor, and had exhausted all means of obtaining satisfaction at law. And even this doctrine is broader than that laid down in 1 Story's Eq. Jurisprudence, 626, that it is only the execution vendee who so succeeds to the interest of the debtor partner as to have standing in equity sufficient to maintain a bill for an accounting.

Again, the suggestion was made in Morrison v. Blodgett, and repeated in Dow v. Sayward, by Parker, J., that the creditor, in addition to attaching the debtor partner's interest, might summon the other members of the firm as trustees, and in a trial of the trustees' liability might practically secure a partnership accounting. But this doctrine was expressly repudiated by Parker, then chief justice, in Burnham v. Hopkinson, 17 N. H. 259, and his decision has been reaffirmed in later cases; though in Treadwell v. Brown, the trustee process was again mentioned as a possible solution of the difficulty. The principle that only a liquidated claim can be held upon trustee process would seem effectually to dispose of this suggestion; and it is upon that principle that the decision in Burnham v. Hopkinson, and the similar decisions in almost every jurisdiction in this country, are based.

To sum up, then, the law on this point, as held by our New Hampshire court, it seems to put the creditor of a member of a partnership in this unenviable position. He is allowed to attach the debtor partner's interest in the partnership effects,—that is, land and chattels, but not including book accounts, good will, etc. But his attachment cannot be made secure by taking the goods themselves into the possession of the attaching officer; nor can the other members of the firm be made responsible by being summoned as trustees. The attachment, until the claim is reduced to a judgment, gives the creditor no sufficient lien to enable him to interfere, by proceedings in equity, with

the management of the partnership affairs or probably with the disposition of the partnership effects. In fact, it has been expressly held that the purchaser of partnership property on which an attachment of this kind has been made, acquires good title as against the attaching creditor. Hill v. Wiggin, 31 N. H. 292; Tenney v. Johnson, 43 N. H. 144.

And even when the claim has been reduced to a judgment and execution levied, all that passes by sale to the execution vendee is the debtor's interest in the surplus remaining after payment of the partnership debts; and in order to determine the value of this interest the vendee is obliged to compel, by proceedings in equity, a dissolution of the firm and a partnership accounting. A purchase of this character could hardly be called a legitimate business transaction; it is hardly more than a gambling hazard. In short, under the theory of partnership maintained by our court, the creditor of an individual partner is virtually without remedy. This theory may be correct, though it is by no means universally adopted, and is, at the least, open to criticism. It is based principally upon the assumption that the partnership creditors rely for their payment upon the partnership property, while the individual creditors rely upon the individual property of the partners. This assumption, it is submitted, is founded upon a misapplication to the case of solvent firms of the principles governing the distribution of assets in case of insolvency, and has no actual foundation in fact. A mere glance at the interrogatories sent out by any of our mercantile agencies to their correspondents, regarding the responsibility of the individuals composing a firm whose financial standing is required, is sufficient to show that if partnership creditors rely more upon one class of property than upon another, that class is the private property of the individual partners. But our court are probably irrevocably committed to this theory, which has been reiterated and reaffirmed through a long line of cases; and, under the cir

ness.

cumstances, it is doubtful whether its renunciation would be desirable. It is better that the law should be settled, though settled wrong, than that it should be in a continual state of change. Stare decisis should be, if I may so express myself, the "God bless our home" of every court. The change, if change there is to be, must come through legislation. It would be presumptuous for me to attempt to settle off-hand that which though confessedly and notoriously unsatisfactory, has remained unsettled for nearly sixty years. But a suggestion as to the general character of legislation which might, in some degree at least, obviate the difficulties of the present situation, may not be out of place. To reverse the epigram of President Cleveland, it is a theory, not a condition that confronts us; and mere theories, particularly when their correctness is not above suspicion, must not be allowed to stand in the way of busiThe natural solution of the problem, as it seems to me, is to make the specific articles of partnership property liable to attachment in the same manner as if they were the property of the debtor partner, giving the attaching officer the right of possession, to the exclusion of the other members of the firm (who might of course release the goods from attachment by furnishing a satisfactory bond) and the right to convey on execution sales the entire property in the goods attached, applying the debtor's share of the proceeds in satisfaction of the execution, and paying over the balance to the other members of the firm. There might be some difficulties in the operation of this plan; but there must always be difficulties in the law; if there were not, there would be no business for lawyers. The objection may of course be made to this procedure that it gives the attaching creditor more than his debtor possesses; but unless this is done it is virtually impossible to get anything of any practical value. As long as the firm is solvent, no injustice is done to the partnership creditors and if it is not solvent, the attachment will be dissolved by the institution