33 Pa. 371 | Pa. | 1859
The opinion of the court was delivered by
It was quite right in the court to confirm the auditor’s report. The equity of the claim of Acheson & Rommel is very clear. If their opponents want strict law, then we start with a judgment of Acheson, Rommel & Fry against Hess for $10,000, and they have to show that this was paid, wholly or partially, or that in equity it is wholly or partially discharged. In strict law there has been no payment, and there was none intended to be. The relief against the judgment, if improperly used for its legal amount, belongs to equity.
Now, Hess’s creditors have no more right to relief than Hess himself, and he has no more than is allowed in the auditor’s report. He owed the firm, when Fry left it, over $10,000. Has he any equity to claim that all this is paid, and that the judgment to secure it is discharged by reason of his subsequent dealings with Acheson & Rommel? Not at all; for all those dealings were manifestly continued on the basis of the judgment-bond. And if this did not appear, it would be quite equitable to apply the payments made to Acheson & Rommel, to the debts due to them and not secured, rather than to the debt due to Acheson, Rommel & Fry, which was secured.
Decree of distribution affirmed at the costs of the appellant, and the cause is remitted to the Common Pleas.
