The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1867-01-17
DECISIONS Or TIE HIGH COURT
ERRORS AND. nAPPEALS.
OCTOBER TERM, 1866.

Fl. .. - - s.
ERRORSs AND ,ezAPPEALS-
.. 80
OCIOBEh TENN, 1900.
d q n ~ s
Reported Exprcssly for she CIarion.
iaJoHN ID. FR1sESfAN. Anpeal fro n
Va. Chancery Couri
+ JAMES ID. STEwARr. at Al. SFIinds county.
TRe ODinion of the Court dei;reg,sd IN .Just;c,
Haiyis; F' On
me hin shows thai defendant stawart. and
ners n, bankinr That - snch thew issued
| their certificate of deposite to one Bush, fol
certain sum of gold and silver deposited
with them !: that after the said sleuosit and
fhe issllanea 1,f tha cert;ficate. Grifiith died
that Bush assigned the Certificate to com
plainanf That complainant repeatedly de
mhndeda the sum of money so deposited, oi
said Stewart. surviving partner, which he re
fused to pay. ssts
This hills filad as a creditors hill against
the heirs at law and administrator Of Grit
fifth, and said Stewart alleging that the as
sets of the firm consists of real estate only
and PRAYING to subject the same to the pay
ment of compliments debt There was an
amended kbill the substance of which, as
well as of the original bill, are stated above
as far as necessary to the case now before
us.
To both the original and amended bills,
defendant demurred ,and the demurrers were
sustained
The bill proceeds upon the idea, that q
iointcreditor of o partnership has an eqult-
able lien on the assets OF the partnership IN
the handsaof the lHFyiyor, upon the death OF
one of the PARTNERS.
As against the surviving partner, the cred.
itor has1o lien, aud no remedy except q.
law. He may sue the surviving partner !, az
law, and obtain his Judgment, ana sell the
partnership properly ~.
But as each partner mas len on the as.
sets of the firm, IN equity, foT me paSment
of its debts, courts Q equlbX upon tneI ueatn .
| of one partner, witiAshe assest of the snryl
wing partners, havHeoermtteu bhe cfeuiSoIs
to avail themselveSpf this equitable lien, IN
favor ST the partners, for the purposes OF
winding up and settling the business OF the
partnership, and applying the assets, as IN
| equity ought to be done.
While the partnership is existing, credi
| tors have no equity, strictly speaking, against
| the effects of the partn6rship. Neither have
| they any lien on the partnership effects, fol
| their debts. Their only remedy is by action
| at low. Story on Partnership, 9. 30o, p. Buy
and s. 81, 1876. @
Where the partners themselves have
| lien upon the partnership effects, for the
| discharge of all the debts and obligations
| thereof. las they have in all cases where
thew have not parted with it, ) that lien may
| in many cases, be made available for the
| benefit of the creditors But then the equi
/ ties Of the creditors are to be worked out
/ through the medium of THAT Of the partners
| They have indeed no lien; but they have
something approaching a. lien, of which
with the assent of the partners, entitled to the
| lien, they may avail themselves, In a court
of equity, against the partnership effects. Sto
nv on Partnership, Sec. 800, p 5ll-l2
| II is only in cases of dissolution by the
| bankruptcy or death of one partner &c.
| that the Joint creditors have a quasi lien up
On the Dartuersbip efects-as a dericatire sub
ordinate right under and through the lien ana
| eouifu of tie partners, id. S. 36I.
But as to the separate estate of the deceased
/ partner, at law-the creditors have no RENE
| DIV. At lac the sole right of actionis against
| the survivors, in favor of joint creditors
4 And it was formerly held that joint creditors
/ of the partnership had no claim in equity
against the separate estate Of the deceased part
4 hel-except when the surviving partners
were at the time, or subsequently, became
| insolvent OF. bankrupt. But it is aOte held
4 that in equity, all partnership debas are te
/ be deemed Joint and several; and conse
| quently the joint creditors have IN all cases
| right to proceed at lag, against the snryi
yors, and an election, also, Ito proceed % equity
against tie Separate estate OF the deceased part
ner; whether the surviyorsbe insolvent o.
bankrupt OF not. The consequence is thai
the joint creditors need not now wait unit
the partnership affairs are wound up, and
i final adjustment thereof made. But they
may at once proceed, as upon JOINT ant
several contract. in equity against the sepa
rate estate of the deceased partner, although il
any such suit the surviving partners mus
be made parties as persons interested IN takiR!
the accounts.
1t seems to be clear therefore that a
against the separate estate of the deceased part
ter, when the joint creditor cannot sue at td'
he may at once proceed IN equity wlthou
sueing the surviving partner to lnsolvenc,
or bankruptcy, and thus exhausting thu
partnership assets or property in the hand:
of the survivors, not because he has a liel
or quasi lien against the estate Of the decease,
partner, but because in equity, his remedy il
Joint and several, and because at laao he ha
no remedy, against the separate estate Of tn
| deceased pdrfner But in case of sui
against the surviving partner as the repre-
sentative of the joint estate, by suit on th,
| legal demands. And as legal demand alone
| he cannot present it in a court of equity
And second. because having no lien himself
he cannot BIZ himself or for his benefit alone
| be heard in a court of equity, to assert iade
rendently of the surviving partners, thei
RIGHT to a lien in equity on the assets, of tn,
| nartnarrIhin FIR the naVmant of the partner