The opinion
Potts, J.
I concur in overruling the demurrer. On an execution against one partner, the partnership property may be taken, and replevin will not lie to recover it back, (Serngham and Mackie v. Carter and Labagh, 12 Wend. 131 ), though it is said the sheriff can sell only the interest, which *447 such partner has in the property after the partnership debts are paid. (Smith’s case, 16 John. 106 , and see note.) In. Eddie v. Davidson, Douglass, 627, where the sheriff had sold the whole property, the court directed an account to be taken, and tbe share of the other partner to be paid over to Ms assignees. In Kimball v. Thompson, 4 Cushing, 447 , it was held that replevin cannot be maintained by one who has only an undivided share in the property; but if the property is sold by the sheriff under an execution against one, the other tenant in common has his remedy against him for his moiety of the proceeds. The same action is recognized in Hart v. Fitzgerald, 2 Mass. 509 ; Ladd v. Billings, 15 Mass. 17 . In Brown v. Bissett, 1 Zab. 46, it was held that partnership property may be attached to answer the debt of one partner, subject to tho partnership debts; and in James v. Burnet, Spenc. 639, that it may be seized in execution, upon a judgment against one of the partners. The phraseology of statute, (Rev. St. 65, § 8), does not interfere with these principles ; it is the property of Allen only, that is distrained in fact; but he cannot have replevin because he is the tenant in arrears, and his interest is rightly distrained — nor can Yail, for he has but an undivided share in the property, and the landlord’s right is as broad as his.
Demurrer overruled.