22 matter of the expiration of the Commission of . 518 Loan Association v. Stonemetz 534 Logan v. Washington County 373 Okeson v. Patterson 471 . 407 238 . 242 Lonergan, Fenlon v. Lonsdale's Estate Loomis's Appeal P. Loomis v. Lane Loretto Road . 350 Page, Dennison v. Lower Windsor, Road in Paradise Road Lucas, Fry and Hartman v. Luce, Moore v. Lutz v. Commonwealth Lynn v. Lynn . 369 M. Manderbach v. Mock and Wife 43 Martin, Reed v. Masser v. Bowen McCalmont v. County of Allegheny McClelland, Richards v. Patterson, Okeson v. Paull's Executors v. Eldred Pennsylvania Railroad Co. v. 322235 165 . 478 . 118 283 Railroad Co. v. Barker . 160 Pittsburgh and Connelsville Railroad Co. v. Clarke and Thaw 179 128 . 417 146 385 CASES IN THE SUPREME COURT OF PENNSYLVANIA. MIDDLE DISTRICT-HARRISBURG 1857 Coover's Appeal. The claim of partnership creditors to a preference in the distribution of the assets of a firm must be worked out through the equities of the partners themselves; each of whom, so long as he exercises dominion over the property, has a right to insist on its application to partnership liabilities, before it be appropriated to the individual debts of the partners. This right is waived when each partner sells all his interest in the property, and the same effect is produced when the several interests of the partners are sold on executions against them respectively. If, while the interests of the partners continue, executions are issued against the individual partners for their separate debts, and also against the firm for partnership debts, and by agreement of the execution-creditors the goods of the firm are all sold at the same time, the firm creditors are entitled to the proceeds, although the individual executions were prior in date. APPEALS from the Common Pleas of York county. On the 1st day of October, 1855, Emanuel Lomman and George W. Machlin entered into articles of copartnership in the mercantile business, having equal interests. On the 23d July, 1856, Rex, Silvis & Co. issued an execution against Lomman for an individual debt of $3220.75, with interest from 1st April, 1856; and, on the same day, by virtue thereof, he levied the interest of Emanuel Lomman in the partnership. On the 26th July, Henry L. King issued an execution against George W. Machlin, the other partner; and, on the 28th of the same month, Machlin's interest in the [Coover's Appeal.] partnership concern was levied under this fieri facias. An execution of Mary Dare against Machlin was issued and levied at the same time as that of King. On the same day that these last two executions issued, but at a subsequent hour, Jacob Coover caused an execution to be issued against Machlin on a judgment confessed that day for $2948.85. On the same day an execution on a judgment, in favour of Jacob Coover against the firm for $2000, was issued and placed in the sheriff's hands simultaneously, with the one in his favour against Machlin. Under this writ, the sheriff, on the 28th July, 1856, levied on the personal property of the firm. On that same day the sheriff advertised the property for sale on the 5th August, on the writ against the firm, and the interests of the respective partners on the writs against them individually. On the 30th of July, 1856, Dennis Cannon, Jacob Mumma, and Fithian, Jones & Co. respectively obtained judgments, and issued executions against the firm of Lomman & Machlin in the order of time in which the parties are stated above. These executions were also levied on the partnership property. The sale did not take place on the 5th of August as advertised by the sheriff; and, on the 11th of that month, the counsel of the respective plaintiffs in the executions entered into the following agreement: "Whereas, there are doubts as to the proper manner of executing the above executions; and, whereas, the largest amount can be realized by selling said property clear of doubt in regard to the title bought by the purchaser:-Now it is agreed by and between the several plaintiffs and defendants in said executions, that, if the sheriff shall at one sale sell all the interests of the defendants in the same, both their interests and the joint partnership interest, no objection shall be made to a sale thus made, and that the right of no plaintiff shall be affected by such sale; and it is further agreed that the money made on such sale shall be paid into court, and shall be distributed in the same manner as if the sale had been made according to law (if such sale be not made according to law), the rights of the respective parties remaining unaffected by the manner of sale, and the sheriff's return." On the 13th of August, 1856, Stevens, Hollinshead & Co. issued a fi. fa. against the firm for $522.93, and one against Lomman individually for $1088.32, with a credit endorsed of $700. The property was sold by the sheriff on the 18th August, and returned on each execution that he had sold the personal property levied on that and the other writs respectively-designating them by their numbers and terms. Under the agreement, the net proceeds, amounting to $4423.30, were paid into court. And the court appointed John Gibson, Esq., an auditor to make distribution, who reported the following: [Coover's Appeal.] Balance for distribution, deducting expenses of auditor, . To Jacob Coover, Sr., On fi. fa. to August Term, 1856, are awarded-- To Dennis Cannon, On fi. fa., No. 39, August Term, 1856, are $4370 30 2008 00 awarded-debt and interest, 352 06 To Jacob Mumma, On fi. fa., No. 40, August Term, 1856, are 903 60 To Fithian, Jones & Co., On fi. fa., No. 41, August Term, 1856, is awarded 1106 64 $4370 30 Exceptions were filed to this report, but the court below, after argument (FISHER, P. J.), delivered the following opinion, confirmed the report, and decreed distribution accordingly. "It is a well settled principle of the law of partnership that the joint effects belong to the firm. The corpus of the partnership property is joint, and the individual interest is that which remains after satisfying all the joint debts. It therefore follows that a sale of the interest of one partner, either by transfer or execution, passes only the separate interest of that partner, subject to the debts of the firm. The reason that it is so is not in consequence of any right inherent in the creditors, or any equity in them that demands preference, but because it is a part of the contract between the partners. It is one of the incidents of the relation existing between them, established for the purpose of preventing the joint capital from being withdrawn without the consent of all the partners. And so exclusively is that equity in the partners and not in the creditors, that one partner can sell to the other, so as to make his share separate property, Ex parte Peake, 1 Maddock Ch. Rep. 197; and although the reverse was held in Anderson v. Maltby, 4 Brown's C. C. 423, all subsequent cases reject its authority and assert that it was decided on the ground that the arrangement between the partners was fraudulent. But where the transaction is fair and honest, and is an actual transfer of the effects, its validity is not now a controverted question: Ex parte Raffin, 6 Ves. Jr. 191; Ex parte Williams, 11 Ves. Jr. 3. Where there is a disposition of the interest of all the separate partners, whether by sale, voluntary assignment, or execution, the equity which requires that the joint debts should be paid out of the joint effects is destroyed; and the joint creditors can claim no preference for the debts, but must rely upon the individual |