Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-09
COURT DECISIONS.
EVfVIOtSV'
DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
VRCINIAN.PlLOT.
Notes OF Cases Recently Decided
Which Are of Interest to
Our People.
SANDS V. DURHAM.

supreme Court of Appeals of Virginia.
June 49, 1900.
PARTNER WHO PAYS THE
DEBTS OF HIS FIRM is NOT EN-
TITLED TO SEGREGATION TO
TIE RIGHTS OF THE CREDITORS
WHOSE DEBTS HE HAS PAID,
UNLESS by AGREEMENT BE-
TWEEN HIM AND THE OTHER
PARTNERS HE HAS ASSUMED
THE RELATION OF A SURETY AS
TO THEM.
Durham paid out of his private
means certain debts of Il firm OF which
he was partner, and then sought TO
oe Subrogated TO the rights of such
creditors against the property of his
co-partnerS. From n decree in his ia
'or an appeal was taken.
me court says:
IT is we'll settled that one partner
who has paid out of his own means
debts of partnership of which he is
q member. may upon a settlement of
the partnership accounts have contri-
pution from the other partners OF their
que proportion of the debts so paid
IL is also well settled. that where orc
IN the situation OF surety pays the debt
or him who is primarily liable equity
VIII put him In the place of the cred
itor whose debt he has discharged and
which the creditor has obtained from
the principal debtor; and though no as
sisnmept is actually made, equity
treats 1t as having been done.
Suorogation Is the equity by which
person who Is secondarily liable for
dept. and has paid the same. is put
IN the place OF the creditor so as to
entitle him to make use of all the Sc
curlties and remedies possessed by the
creditor. in order to enforce the right
OF cXOnerHtlOn Dpnnst hN
PAL debtor In the same rank with him
sell. To entitle n party to Subrogation
MS equity must be strong and his case
clear IT is an equity called into ex-
istcnce for the purpose of enabling n
party secondariiy liable. but who has
paid the debt. to reap the benefit of
any securities which the creditor may
mold against the principal debtor and
by me use OF which the party paying
may then be made whole. Bispham's
Principles of Equity, 1903. But, SAYS
TINS learned author. y. 3a6: 1.-THE prin-
ciple of suhrogation is n general one
ana VIII apply to every instance (ex-
cept In the case of n mere stra nger)
where one man has paid n debt for
which another is primarily liable. The
riSht will not, however exist between
parties who are equally bound--as for
example, co-nartners. co-obligorS and
co-contractorS, except of course by
virtue OF a special contract. Such spe-
cial contract may exist. for example
where an outgoing partner takes n
covenant from tho remaining members
or the firm to pay the partnership
debts and save him harmless. He
stands. under these circumstances in
the position of n surety. ana may be
subroGnted 10 the remedies of the cred
Nor If the covenant he not fulfilled"
partner who retircS from the firm
and for valuable consideration is
Unidentified by the remaining partners
against all debts apd liabilities of the
firm. will in equity be considered n
surety for them and subrogated to the
rights of the creditor to whom he has
been compelled to pay firm debt. In
other words. the doctrine of subroga-
ton does not ordinarily apply as he
tween co-partncrS. though the right
exists to have contribution from each
other. where one has paid out OF his
private means debt of the firm
which is not repaid to him out of the
social nssetS. TO entitlc n partner
paying out OF his private means debts
against the firm. to be subrogated to
the rights of the creditors whose debts
he has so paid the relations ordinarily
existing between co-partncrs must
have been changed by an agreement
between them whereby they assumed
the relation of principal and surety
buchanan V. Clark and other nuthori-
ties. supra There was no such agree
mcnt in the case at bar. and appellee
was therefore, not entitled to be sub
rOGated to the rights of the Judgment
creditors whose judgments against the
firm of ID. l.. Whitaker & Co. he paid
Reversed.