Brown v. Curtis

4 F. Cas. 365 | U.S. Circuit Court for the District of Rhode Island | 1829

STORY, Circuit Justice.

The fact, that there has been a good assignment of the debt to the plaintiff, is sufficiently made out by the evidence. The question then is, whether the plaintiff is entitled to the relief he prays. It is said, that he is not, against the separate creditors of Wood, entitled to a dividend out of the separate estate of Wood, because he owes the money as partner, and not as a separate concern. Now, upon that point the doctrine asserted in the cases at the bar is, that partnership debts are properly payable out of the partnership property, and separate debts out of the separate property, and until the creditors are satisfied, who have claims on the separate estate, partnership creditors shall not be admitted to touch it. Lord Hardwicke, indeed, in Ex parte Hunter, 1 Atk. 223, 227, held a broader doctrine in respect to a debt due for advances from the firm to one of the partners, and thought it ought to be paid out of the partnership funds, pari passu, with the other debts due to the creditors of the firm. It is now unnecessary to say, whether there-is more good sense in that, than in the later doctrine of Lord Thurlow, which has beeu acted upon by Lord Eldon, that all the joint •creditors shall first be paid. And it must be taken into consideration, that all these cases arose in bankruptcy, and were in the exercise of the chancellor’s authority in bankruptcy; and the objection is said to hare been, that the admission of the debt would require an account to be taken of all the partnership concerns. That might be a good reason for declining the interference in a petition in bankruptcy; but it does not follow, that upon general principles the same rule ought to apply to a bill in equity, especially where there is a general assignment of the party to pay all his debts rate-ably, and there is, technically speaking, no insolvent act or legal bankruptcy to affect the case.

But waiving all consideration of this point, we are of opinion, that here the money was not drawn out of the partnership funds, as partner. Wood received, and held it in his official capacity, as treasurer, and not as partner. It was delivered to him by the agent of the company under the articles; and the agent drew for it from time to time, as the concerns of the company required. Wood, then, held it, as a stranger or banker would hold it, not for his own account, as partner, but for the company, and by receiving it, he contracted in equity a separate debt to the company, as treasurer, and not as partner; so that it falls within the authority of Ex parte St. Barbe, 11 Ves. 413. See, also, 1 Hov. Supp. 650, note 6; Ex parte Hargreaves, 1 Cox, 440; Ex parte Harris, 2 Ves. & B. 212; Ex parte Yonge, 3 Ves. & B. 31, 34; 1 Cooke, Bankr. Laws, c. 13. A decree must therefore be entered for the plaintiff. The parties, however, admit, that a final decree cannot now be entered; and, unless they agree, let it be referred to a master, to ascertain the fund in the hands of the defendant, and the rateable proportion due to the plaintiff. Decree accordingly.