The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-05-28
SurT0e ate's Court.
Before A. W. Bradford, Eco.

A DECISION INTERESTING TO MERCANTILE MEN-A
DECEASED PARTNERS ssPARArE ESTATE MUST
PAY ALL HIS SEPARATE DEBTS BEFORE THOSE eF
JOINT CREDITORS.
MAY 27.-In he Mater Of tie Estate Of lanes J. seocr!,
deosasd-The following nporan. decision was 10 in
this Court 10 day
The srRRoeArB-The teetator was member Of the nrm
OF j. Stewart Co., and the distribution Of the pro-
ceeds Of the sale Of his real etate question arises
the proper mode of marshalng the between the
oividua and the partnership creditors Or the decea.e Of
Stewart his surviving partner settled the Affairs Of the
nrm and distributed the among the partuer hip
creditors but the Or m being insoyent large portion Of
the Joint debit NAMED unpaid The surviving partner
also being insolvent, the only remedy remaining to the
partnership creditors, for the unpaid balances OF their
Claims against The Of the tesa,or, The
question s whether the partnership creditors
be post until separate creditors are paid
II In well settled both at law and In equity, that the sepa
teret Of their debtor or his proportion Of the surplus Of
The oint property remaining AMER OF all the part
nership debs Gin the matter OF smith lo J R. lo2
claims Of the partnership CREDITORS there distinction
between the legal and the equitable rule. At law, the
partnership creditors may pursue both the Joint and the
separate for the satisfaction debit which
law ,nsdered both Joint and several On the death
of the parties the leg right against
ed partner and survives only against the -vving
partner court OF equity however, viii decree 10 POINT
of deceased partner when by OF
insolvency OF the firm and OF the surviving partner
other remedy exists Thus far the rule seems plain Bot
what the rights OF the Joint creditors against the
seJar dors Of tbs deceased partner, when the
the latter insufficient pay both classes Of clsimY
Have he individual creditors prior right 10 the Individual
estate and they entitled 10 be paid rst preference
the Joint credors2 The legal claim of the Joint crei
tors against The property Of The deeeased parner
terminal by his death but remedy will be Afforded In
equity, according 70 equitable principles. The general
doctrine very clearly established IN this State, that joint
creditors will not be PERM ted IN reach the individual as
Of The deceased partner until all the creditors
are satisfied Murray Murray, c. X 60 RID
bins VS. Cooper 81 c r. So. wilder vs. Reeer, 8 Paige
w I'd. W
,bews, Paige r 20 Jackson Cornell, Sanford 3is
Bru'us vs. nsdale, 1arb I. c R. 572) Tue only excep
ton this rule, according 20 the English decisions
Ia where there Is no Joint estate aud no
solvent surviving partner 10 which the joint cre
tors will not be postponed but will De allowed
raeably 9TH the individual creditors (Exparte Hayden
Bro. G. C., t53 expar,e Abel !, teq 49, cxparte Pn
keron, g. tes sl3 note exparte hensingou, Ia, tcs
Az; expsrie Kendall. H. ts. 52l But this exception
does prevail the Joint eate, though insolvent, be
able TO pay dividend, however Uncomfortable Gray
Chswen, Q, tes 12i MCulloh Dashic L; HIrris
Gill, %; Cow Park ,I0s II there be any joint
fund.- though Of ung amount the JOINT debts
he'd 70 that and canno, receive dvdends gu, Of the
separate eaie par Id,su with the separate credtrs. II
not easy 70 perceive the ground OF distinction on which
his modification Of The excep ZOO is basel Tho general
pvincte that the oint creditors attached the Joint
fund and the separate creditors separate fund bat
here there no o1t fund and no solvent surviving part
ner that the Joint creditor l. without remedy, he
may come 10 aga INST the separate estate Tue knghsh
Of equity hss recognized both against the
reientaves OF the deceased partner aud his individual
creditors the and several character % the partner
chip debit, when other remedies exhausted, Al The
tine the death Of the decreased partner The fact tst
come dividend has been or may be received from the
ont effects change the Joint aud several c1arac
ter o. the partnership ceb but only tends 10 s1ec Inc
equitable marshallng Of the assets Arer the
receipts Of the dviseDd there 10 the balance
due remedy except against the separate estate, VI
n there no individual creditors would b. APPLE "a
the discharge Of the balance The principles upJn which
This rule based would 10 be satsded n toe joint
creditors bring 10 the dividend received from the J1ui
estate, place u In common fund. out " which al
share alike and reuquish the advantage ~ having rer
ini wei several In their nature T. that me
ui creditor may resort 70 The sepsrs" estate ~hoB toer
J. JOINT fund and no solvent partner, BIT canuJ resort
10 II Il he has happened n realize mill the Solar
would appear 10 estab stncioD more tcnn "a than
Just the dividend i broughi in the grVtnj NJ tae ds-
unciion ceases. no priority advantage gsined,
am al the demands are placed nn cpnmn grofud
~ equality In this Stale, however, the Doctrine
~ tie tnglDh courts Of equity this suhjcc.
has not prevailed w regard 70 the general rlie
IL Nelor Ns keeer, Paige l67, the Cniucelipr held
d srhot gh the in creditors ui'cn al sssuOD Il The
rsht nc6mpei Satisfaction ofeir de hts Oh, OF the estate
hers aud rsprs Of the diseased but no again
his seai credors That the lni creditors have re
ceived nothing ascount OF their dents since IN
death or thu dessdru the 90 Tito bew sen the joint
sDd SEPARATE creditors may ne equal; but even In
Fucb clse The Onnu has no rovCr b. deprive The
separate creditors 81 bsr former righ and legal
ssset The same principle sgsin a~erted 10
tgners Wool, Paige, BIZ IN Payne W. Mat hews,
Page, 70; sapy " ~hooDml Ser. Barb O. 40
The pcipe that sluity vii not interfere 10 destroy
ar the era preferences In regard a. ga assets which
apIers n the creditors al aS y sound and
4 NhCh oa7B ~ lletibCuon a OF
sn tonfni oour of reasoning aud prevents any aonin
zion. (See frt3is.s lawrence, II Psise, SO Jafk
| ON W csrpei Sardfcrds, g 3is whether t1ere
ore the asFe in he present be treated strictly
s legal assets ought he msrshalled according N
equitable principles, The join, creditors cannot he permit
10 . nave their debts paid OF the separate euatc Of
he deceased partner until all the debts paid
= ~ sven payment be made, any surplus remain :,
then may be applied the payeu, of ths
oreGors and In tha, who have received part
a!ment Out OF the partnership pr Ipery must bring in
theH ovoenes sd share rseahly with those who have
not received dividends else be exoloai mt, he la :,
class ~ partnership creditors have received suirieu,
amount 70 place them ON ter ns of equality with she
| former.
| Az TsPoRraE1 LEgAL DsCisrov IN Rva,Rp Tn
ruHcI PRoPYpTY The year 1851 the trustees 81 :,
ters Society, IN Rochester, brought suit agans, John
rmon Bishop Of Buffalo, and others, " recover Ibei,
church property, then held In zee by the Bishop 80 ~
forty DAYS we're occupied IN taking before the 70
eYes as 70 the spiritual and legal powers OF Caho,