13 Pa. 471 | Pa. | 1850
The opinion of the court was delivered by
The right of Jules Hauel to take of the money in
But the decree appealed from may also be supported on other grounds. As already hinted, in administering partnership) funds, preference is given to joint creditors, not from any merit residing in them, or because, considered in reference to themselves alone, they are vested with rights superior to the separate creditors. The equity, from the operation of which they derive the incidental advantage, appertains to the partners, and arises from the nature of the contract of partnership. This equity springing from their community of interest, in the capital stock and effects of the partnership, is to have the avails of these applied in discharge of their mutual liabilities, before any individual of their number is permitted to apply the joint property to his pmivato uses. As between themselves each is said to have a specific lien on the present and future property of the association, as well to secure payment of debts due to third persons, as for his own share of the joint effects. It is by the working of this equity the partnership creditors are first let in on the partnership funds, and only because it is necessary to the administration of justice between the partners; exparte Ruffin, 6 Ves. 119; exparte Williams, 11 Ves. 5, 6; Bell vs. Newman, 5 S. & R. 85. In the first of these caces Lord Eldon, following the lead of prior authorities, declared that what is partnership property shall remain so, not as the rights of the creditors, but as the rights of the partners themselves require ; and that it is through the medium of the equities subsisting between partners, the joint creditors have an opportunity they would not otherwise enjoy. In the much considered case of Doner vs. Stauffer, supra, it was well remarked by the present Chief Justice, “that in moulding the law of partnership into its present form, the credit gained by giving the joint creditor a preference
I repeat this familiar doctrine, not to re-assert what long since the profession has received as indisputable law, but in connection with the facts found here, to recaí the principle that any advantage enjoyed by the joint creditors, is wholly dependent on the equity residing in the partners themselves, When this has no existence, that cannot take place.
On the 23rd of April, 1849, the appellee’s execution was put into the sheriff’s hands. He levied on the partnership effects and Was about to proceed in further execution of his writ, when Fridly, Kelso’s partner, interfered and caused the sheriff to pause, by an intimation that he, Fridley, would pay the money himself, rather than the goods should be brought to sale. A short time after, the sheriff, declining to wait longer on Kelso — who it seems, entertained a hope of raising the amount — informed Fridley he would advertise a sale if the money was not made up. Upon this threat Fridley promised to pay it, and did shortly after pay a portion, again promising to call within a day or two, and discharge the balance. Trusting to this, the sheriff further forbore a sale. While the matter was thus pending, under the suggestion of Fridley, the judgment by which the appellants claim, was confessed. At the time Fridley interfered, the first execution creditor had a lien on Kelso’s interest in the goods levied, which might have been made available by a sale; Story on Part. sec. 261, et seq. The sheriff expressly testifies he would have sold that interest but for what Fridley said. It might have been impossible to ascertain its value, before settlement of a partnership account, yet as the purchaser would have come in, as tenant in common with the other partner, and been thus vested with the right to force an account, under the act giving equity jurisdiction to our courts in such cases, the interest of the partner defendant might have sold for sufficient to satisfy the execution. At all events, we cannot say it would not, more especially in the absence of any proof,, showing the extent to which the firm was then involved. We may imagine the judgment last confessed was suffered to secure pre-existing debts but that must be all. There is no evidence of it. From aught that appears, those debts may have originated at a period posterior to the first levy. Under all the circumstances I have adverted to, it is impossible to say Fridley, as partner, was clothed with any such equity as could interfere to defeat Hauel’s execution.— To permit it would be to promote the triumph of a fraud, initiatéd by a faithless promise, and consummated by deterring the officer
The case might be put on the farther ground that the first seizure in execution dissolved the partnership; Story on Part. see. 311, and cases there cited. A consequence of this would be, that the late partners could not afterwards create joint debts, in detriment of prior creditors. I have already said we are without proof the debts of the appellants existed before the dates of the bonds, given to secure them. They have left us wholly in the dark in this particular, except that two of the obligees declared they have no interest in the matter.
Decree affirmed.