82 Pa. 150 | Pa. | 1876
delivered the opinion of the court, May 29th 1876.
The radical error of the decree made by the court below consists in the fact that it attempts to work out the equities between Bomberger and his partner Hickernell in a summary manner. Where one partner has paid a partnership debt, he is not entitled to subrogation against his copartner until an account has been settled between them. In what other way can it be ascertained which is the creditor and which the debtor partner ? This difficulty confronts us instantly in any attempt to enforce the order made in this case. How can it be ascertained upon the execution how much of the debt Bomberger ought to pay ? Clearly this cannot be done without a set
The learned judge of the court below evidently based his decree upon the Act of 22d of April 1856 (Pamph. L. 534). We think it manifest from an examination of said act that it was not intended to apply to any case in which the amount the substituted creditor has a right to collect from the adverse party under the judgment has not been ascertained. This is the first step in subrogation.
The decree is reversed and the petition dismissed, with costs.