Washington Law Review


Substantially the same procedure prevailed throughout the United States under general execution statutes where the successive steps generally consisted of: (1) seizure of some or all of the partnership property under writ of execution; (2) sale of the debtor partner's "interest in the property"; (3) acquisition of the debtor partner's interest "in the property" by the purchaser at the execution sale, subject, however, to the payment of partnership debts and prior claims to the firm against the debtor partner; (4) compulsory dissolution and winding up of the partnership, and (5) distribution to the execution purchaser of the debtor partner's share of any property remaining after the winding up process was completed. Two factors combined to bring about this "clumsy method." The first was the difficulty which courts and lawyers had in understanding the nature of a partner's interest in a partnership, that is, that it was an intangible share in the business of the firm rather than a direct interest in the property of the firm. Even when this concept was recognized, as it inevitably was when a separate creditor of a partner seized partnership property, the second factor came into play. The common law had no procedure for the seizure of the partner's intangible interest in the business. The writ of leri jaclas, common law counterpart of the writ of execution, permitted seizure of physical property only. Since it was practically inconceivable that valuable partnership interests should be exempt from creditors' claims, the writ of fieri jacias was employed even though ill suited to the purpose.

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