By the Court -This-is an appeal from an order of the District Court setting'aside the levy of an attachment issued in the above entitled action. The return of the sheriff to the attachment is, that he “ attached by virtue of this writ, a certain debt,and indebtedness due and owing from Philip F. McQuillan to the within named defendants, for goods sold by them to him, on or about the 14th day of June, A. D. 1867, consisting of about twenty-five (25) barrels of whiskey: Said debt,-or indebtedness, being jiayable on or *203about tbe 14th clay of October, A. D. 1867; and also all debts and indebtedness due or owing by said McQuillan to said defendants, or to said Franklin O. Day, defendant; and on same day, viz., July 8th, A. D. 1867,1 served a copy of within writ, with a notice endorsed thereon of the property, debt, or indebtedness, so attached, of said McQuillan, to said defendants, or to said Franklin 0. Day, upon said McQuillan, and delivered and left the same with him, personally, on said 8th day of July, in Ramsey county, aforesaid.” It is urged that the order setting aside the levy must be here affirmed, because, (1) The whole debt was levied on, not the interest of the debtor partner in the debt: (2)- The debt was levied on as belonging to a firm long ago dissolved, &c.: (3) No inventory is attached, to the writ, and the return does not show that the specific debt levied on belongs to the defendant, or that he has any interest therein-: (4) No certified copy of the writ and notice was served : (5) No certificate, designating or describing the debt levied on, was demanded or obtained by said sheriff, of McQuillan. It appears that there is an old firm of Derby & Day, and a new firm of the same style, but composed in part of different individual members. The indebtedness sued on, is alleged to have accrued against the old firm of Derby & Day, which was dissolved by the death of Derby, leaving Franklin Q. Day surviving partner, against whom this action is brought: a new firm of Derby & Day, composed of Chas. S. 'Stuart and Franklin O. Day, having been since organized and now existing. On the hearing of this motion, the defendant introduced certain affidavits, showing that no indebtedness of any character ever existed against McQuillan, in favor of the old firm of Derby & Day; but that an indebtedness of the character described in the return did exist against said McQuillan, in favor of the new firm of Derby & Day. ■

The affidavits were not objected to by the plaintiff, and no *204counter affidavits were introduced. The truth of the facts stated in the affidavits do not seem to be controverted by the plaintiff, and the case was argued and treated throughout upon the assumption that the facts are therein truly stated. The new and the old firm, although bearing the same firm name, and containing one member common to both, are distinct and separate firms, and as such hold their .property entirely independent of each other. The ownership of the debt, therefore, is a material and essential part of the description, and as the return shows that the specific debt attached is one owing from McQuillan to the old firm of Derby & Day, it cannot be applied to a debt belonging to the new firm, a distinct partnership.' So far, then, as this portion of the return is concerned, the indebtedness from McQuillan to the new firm-was not, nor was the interest of either of the partners of the new firm in such indebtedness attached by the sheriff. But the return further states that the sheriff, in addition to the specific debt mentioned in the return, attached “ also all debts and indebtedness duo or owing by said McQuillan to said defendants, or to. said Franklin 0. Day, defendant.” It is not claimed that there was any existing indebtedness from McQuillan to Franklin O. Day, individually ; but it appears, as we have seen, that there was an indebtedness from Mc-Quillan to the new firm of Derby & Day, of which Franklin O. Day was a member. The question is whether the language of the return just quoted embraces the interest of Franklin 0. Day in this indebtedness. We think it does not. The fair construction of the language of the return is that the indebtedness attached is due to Franklin O. Day individually. But can it be said that the indebtedness sought to be held under this attachment is due or owing by MeQuillan to Franklin 0. Day? It is a partnership debt; the individual partner has no separate property in it, or in any part of it; *205he cannot maintain an action by which he can recover it, or any part of it, in his own name or to his own use ; the debts of the partnership are due to it only; and not to the individual members of it or either'of them; it must sue in its firm name and recover the debt to its use. While, therefore, an individual partner has an interese in the assets of the firm, that interest is derived through the firm ; and although it should be held that this interest of an individual partner in-a partnership debt may, under our statute, be attachable,'it is not, we. think, embraced in the description of the debt attached contained in this return. Whether if the general language of the return would include the interest of the defendant in a partnership debt of this kind, the return must contain- a more specific description of the particular debt attached, we need not consider.

The order appealed from is affirmed.