6 Ala. 343 | Ala. | 1844
It is said, the principle which should govern this case, is identical with that presented in Yon Pheel v. Connelly, [9 Porter, 452.] There the plaintiff was the assignee of a note due to one partner, and it was attempted to enforce as a set-off, a debt due to the defendants, from a firm of which he was a member. However the argument to sustain that decision, may support the rejection of the set-off here, it is clear, the facts have little resemblance. Although, under our statute, which per
It is said, however, that the individual assets of the bankrupt are to be first applied to the discharge of his individual debts, but we apprehend a debt due from him as the member of a firm, is as much an individual debt as any one he can owe. It is true, there is an equitable rule which would compel the partnership funds to be exhausted for partnership debts, but before an individual creditor can claim any benefit from it, he must show that there are such assets which can be pursued. Here there is no proof to warrant the belief of the existence of such assets, even if a court of law was competent to arrest their due application.
We are satisfied the defendant was entitled to his set-off, and therefore, the judgment of the circuit court must be reversed, and the cause remanded.