Auten agt. Ellingwood. Note 2 to this section unnecessarily supposes that Chase agt. Barret (4 Paige, 148), may be deemed by some as opposed to the law stated. In fact, it is not in any respect. Parsons on Partnership (at page 55, in note), cites for a proposition to the same effect what chancellor WALWORTH said in Champion agt. Bertwick (18 W., 182), viz.: "It is not necessary to constitute a partnership that there should be any property constituting the capital stock which shall be jointly owned by the partners. But the capital may consist in the use of property owned by the individuals separately' (Penny agt. Beach, 9 Bosw., 315; Coleman agt. Eyre, 3 N. Y. Sup. Ct. R., 481; 1 American Law Cases, 605, in notes to Coles agt. Coles, and Dyer agt. Clark). In the last it is said: "It seems to be settled that the mere fact that property held by the members of the firm or tenants in common, is used in and for the partnership in a mere agreement to use it for partnership purposes, is not, of itself, sufficient to make it partnership property." In Mumford agt. Nicoll (20 J., 626) it was agreed, or at least not denied, that the mere use of a ship by its part owners in a joint adventure would not, of itself, make the ship partnership property. Judge WOODWORTH said that "The question then is, admitting the owners of a vessel are to be regarded on the nice distinction of a tenancy in common, whether by the act of the parties the vessel was not made in respect to this concern as much a part and parcel of partnership property as the cargo?" "One principal objection connected with that voyage was that both vessel and cargo should be sold and new investments made for the benefit of the concern." Chief justice SPENCER said, "I mean to say that part owners of a ship may, under the facts and circumstances of this case, become partners as regards the proceeds of the ship." The principles must be the same in respect of what is personal property, ab origine, and of real estate, which in equity may be treated as turned into personal property. In respect Auten agt. Ellingwood. to real estate the rule is, that if tenants in common, or joint tenants, of real estate, not bought by partnership funds, use it for the business of a firm of which they are the partners, it is not deemed to be property of the firm, unless made so by express agreement or by their course of dealing with it for a long period (1 Leading Cases in Eq. [3 Am. ed.], 230; Lake agt. Cradock; Lake agt. Gibson, and the English note, which contains citations of many English cases on this point). Indeed there may be cases where the purchase is by partnership funds, and the title be in the parties as joint tenants, and yet the intention to separate the real estate from partnership funds prevail as much as in the case of the investment of divided profits in personal property by a single partner. If, then, it is true that the parties were owners in common of the property before the agreement was made, and the agreement specially preserves their title as such through the time that the business as to which they were partners lasted, and the use of such property owned in common by them for the business does not make it partnership property, under the circumstances of this case, the plaintiffs have no right to a judgment that the property be sold in the winding up of the partnership business. The business referred to is that of the publication of the paper from April 1, 1870, to the present. In this business the plaintiffs, with Mr. Cornish, were the agents; the plaintiffs and defendants were the principals and partners. There will be (after excluding the property in existence at the beginning which was owned in common) no difficulty in ascertaining what was partnership property. In consideration of the position that by agreement the good-will was owned in common at the beginning, as well as the business; a goodwill that under ordinary circumstances might be deemed attached to the operations of the partnership through the five years under the written agreement and since, must be considered as accessory to, and an accretion of, the good-will Auten agt. Ellingwood. and business that existed in the beginning, the plaintiffs will be entitled to reasonable compensation for their services since April 1, 1875. The plaintiffs are accordingly entitled to judgment for a dissolution, and that an accounting, &c., be had before a referee; the judgment to contain a proper adjudication that the property in existence on April 1, 1870, described in the complaint, is not partnership property. Randall agt. Dusenbury. N. Y. SUPERIOR COURT. RANDALL agt. DUSENBURY, trustee, &c. Application for attachment for contempt, for the non-payment by defendant of a money judgment. Where judgment has been obtained against defendant, as trustee, for the payment of a certain sum of money to the plaintiff out of the trust funds, prior to all other payments therefrom, and the defendant refuses on demand to make such payment, an attachment cannot issue that he be punished as for a contempt in refusing to comply with the said judgment. The plaintiff has mistaken his remedy. The only proper mode of enforcing such a judgment is by execution against defendant's property. Special Term, January, 1876. MOTION to punish defendant, as for a contempt, for not obeying a judgment requiring the payment of money. SANFORD, J.- By a judgment of this court, rendered at special term, on the 8th day of June, 1874, it was adjudged that the plaintiff recover of Charles Dusenbury, trustee under assignment from Selah Hiler, $3,134.41, debt or damages, together with $276.33 costs, and amounting altogether to $3,410.73. It was further adjudged that said Dusenbury, trustee as aforesaid, defendant, do forthwith pay said sum of $3,410.73 out of a certain fund received by him under the said assignment, and prior to all other payments from said fund. It was further adjudged that the plaintiff have leave to apply to this court, on the foot of this judgment, for any further order, direction or decree to carry this judgment into full effect. Randall agt. Dusenbury. The said judgment has been affirmed on appeal to the general term and the court of appeals. The plaintiff now moves, on affidavits showing Dusenbury's refusal to pay on demand, accompanied by a certified transcript of such judgment, for an order that an attachment issue, and that he be punished as for a contempt in refusing to comply with the said judgment. On the part of the defendant it is insisted that the plaintiff has mistaken his remedy, and that the only proper mode of enforcing the judgment is by execution against defendant's property. In this state the enforcement of judgments is made the subject of special statutory enactment. Title nine of the Code of Procedure treats "of the execution of the judgment in civil actions." The first section of this title, section 283 of the Code, provides that the party, in whose favor judgment shall be given, may, at any time within five years. proceed to enforce the same, as prescribed by this title. I deem this provision imperative. The object of the Code, as specified in its title and preamble, was, among other things, to simplify and abridge the practice of the courts, to abolish the distinction between legal and equitable remedies, and to establish a uniform course of proceeding in all cases. The word "may," in a statute, is generally construed to mean "must" or "shall," where public rights and interests are concerned, and when the good sense of the entire enactment requires the change; and it is a familiar maxim of construction, that when an affirmative statute directs a thing to be done in a certain manner, that thing shall not, even although there are no negative words, be done in any other manner. Expressio unius exclusio est alterius." What, then, are the requirements prescribed by titie nine of the Code of Procedure for the enforcement of judgments? Section 285 provides that "where a judgment requires the payment of money, or the delivery of real or personal property, the same may" (that is, must) "be enforced, in those respects, by exe |