M'Carty v. Emlen

The court this term proceeded to deliver their opinions. M’Kean C. J. The objection made against the plaintiff, (Mrs. Pringle’s) recovery, are that a suit was pending against Emlen by M’Carty the surviving partner, and that partnership debts must be paid In the first instance. In England, choses in action are attachable by custom, in the inferior courts. The reason why debts put in suit there were not suffered to be attached, arose from the courts of Westminster Hall not permitting proceedings begun before them, to be arrested in their progress by the smaller jurisdictions. But this reason cannot hold in Pennsylvania. I think this debt was attachable, otherwise foreigners will be in a better situation than the people of our own state But I also th:nk, that a legacy is not attachable, nor money recovered in a suit in the sheriff’s or prothonotary’s hands, and that a defendant after paying a debt recovered against him, shall not be permitted to attach it. The latter points were determined in the court. Dali. 354. It is in general a good rule, that partnership stock shall first be applied to pay partnership debts, but it does not, in my opinion, extend to the present case, and holds only in the cases of bankruptcy and actual insolvency, when an execution issues against one partner. It seems impracticable to apply it to the matters in controversy. For how could this adjustment be effected? How long should the plaintiff in the attachment wait ? The case in Doug. 650, appears to be in point, and settles this question. So that my opinion on the whole is, that one half of the money attached be awarded to Mrs. Pringle, and the other half to the surviving partner Shippen ,T. I also am of opinion that the share of M’Carty in the partnership is liable to the attachment, and that execution may be had [193] thereof. The rale spoken of is only applicable to the cases of bankruptcy and actual insolvency. It would be improper, that the administratrix should wait until the whole of the partnership accounts are settled. If the company stock was dispersed over the different quarters of the world, what length of time would it take to ascertain whether there would be a sufficiency of effects to pay the partnership debts ? It would be impossible to carry the measure into execution, where many inquiries of an intricate nature must necessarily be gone into. Yeates, J. The act of assembly of 4 Anne (Prov. Laws, 44,) pursues in substance the custom of the city of London respecting foreign attachments, though the mode of procedure under it is somewhat variant. There can he no doubt in England, from the cases cited on the argument, and many others, that when once a suit has been instituted in tire superior court of Westminster, for the recovery of any debt or demand, though it has not been followed by a judgment, that the inferior courts cannot prevent-the plaintiff from proceeding, by issuing a foreign attachment. These decisions, principally in the old books, are declared to be founded on the jealousy which the superior courts had of their jurisdiction, and on the impropriety of inferior courts withdrawing, by their interposing process, actions which had originated before a higher tribunal. But this objection does not occur amongst us, from a different arrangement of judicial powers. The same courts which compel an appearance by the process of eapias or summons, issue writs of foreign attachment. Whether the modern adjudications rest on a different principle, the danger of multiplying and protracting suits to a length, seems unnecessary to be determined, since we must ultimately recur to our own municipal law, as the rule of our judgment. The preamble of the act expresses the evil intended to be remedied thereby. Previous thereto, “ the effects of persons absenting were not equally liable with those of persons dwelling upon the spot, to make restitution for debts by them contracted, ” &c. To put both classes of debtors on the same footing, the county courts were impowercd to grant writs of attachment against the goods and chattels of persons non-resident, “ in whose hands or possessions the same shall be found.” To assert that the legislature, with this declared object in view, intended to place persons non-resident in a more advantageous state than the citizens of the government, would be harsh doctrine. In many eases, the first notice received of a foreigner having effect within the commonwealth, is from his commenc [194] ing His' suit. If during its continuance, Ms right of action is sheltered against process, a thousand modes may be' devised by the agent to protect it in transitu to his constituent; — and thus while our courts are open for the recovery of the demand of the person not residing within the state, they are shut against his creditors, who must prosecute their rights in a foreign country, under every disadvantage. The inconveniences which must necessarily result from such a construction of the act, oblige me to declare my concurrence, that the effects of a person non-resident are liable to a writ of foreign attachment, though an action has been brought in the state courts for their recovery. ■ To advance substantial justice, the Court bf B. R. in a case where a plaintiff could not find sufficient effects of the defendant to satisfy his judgment, have ordered the sheriff to retain for the plaintiff’s use, money which he had levied in another action, at the suit of the defendant. Armistead v. Philpot. Doug. 219. Another question remains to be decided on. The debt due from George Emlen was owing to the partnership of M£Carty and Cummins. Elizabeth Pringle, as administratrix of John Pringle, claims a demand from M£Carty, due in his private and individual capacity. It has been settled, as well on the ground of convenience as natural justice, that joint or partnership stock must in the first place be applied to pay the joint partnership debts, and that the creditors of a separate partner shall not be led in on the joint estate, till all the joint debts are first paid. 2 Vern. 293 706. As between one partner and the separate creditors of the other, they cannot effect the stock any further than that partner could whose creditors they are. 1 Vez. 242. No separate creditor of any one partner by any assignment or execution, can be entitled to more than the person in whose place he-stood, but can only have such as was his debtor’s share, after the other partner is satisfied. 1 Ves. 497. If a creditor of one. partner takes out execution against the partnership effects, he can only have the undivided share of his debtor, and the sheriff’s vendee must take the goods as tenant in common with the other partner. The creditor must take the undivided share in the same manner the debtor himself had it, and subject to the rights of the other partner. Cowp. 449. 3 Wins. 183. These principles I apprehend to be,general, and that they are not confined merely to bankruptcies and actual insolvencies. A strong probable insolvency I take to be within the same reason. Where no insolvency of the company is feared, the grounds of the resolutions stated must clearly fail. I acknowledge that considerable difficulties may occur in ma [195] ny instances, in ascertaining whether there are sufficient funds to pay the partnership debts, over and above the company debt attached ; but I think in a number of cases it may be effected by a reference. The delay in my idea is necessarily incident to the attachment of a company debt, for a demand against one partner individually. In Eddie v. Davidson, Doug. 650, it does not appear that there were many doubts entertained of the solvency of Davidson and Birnie to pay the debts of their late partnership; but the counter affidavit denied that Birnie had an equal share in the partnership effects, and stated that he had embezzled the joint stock to a considerable amount; and the court directed that it should be referred to the master to take an account of the share of the partnership effects to which Birnie was entitled, and such share only wag to be paid to his assignees. The case therefore in principle resembles the resolution cited in Cowp. ‘ 449, and some difficulty and delay must have occurred on the master’s inquiry. If Pringle, the intestate, had owed a sum to the company, equal to the private debt due to him from McCarty, he could not on a suit brought against him therefor, have deducted M‘Carty’s proportion of the company debt from the demand against himself, unless there -was surplus beyond what would pay the debts of the co-partnership. 1 Wms. 326, 327. 2 Vern. 293. 1 Atky. 100. It would seem to follow, that the administratrix should not be in a better situation, when there was no debt due by the partnership to her intestate. The result therefore of my sentiments on the last point, (which 1 give with no small diffidence,) is, that if there is any surplus after paying the company debts of M‘Cartyand Cummins, the former’s share of such surplus, so far as it respects the debt in question recovered against George Emlen, only is bound by the attachment of Elizabeth Pringle. It is stated, that the attorney in tact of the plaintiff claims as a creditor of the company. Smith, J. I will not give my opinion fully, though I have prepared it at some length. The Chief Justice has expressed my sentiments entirely, and I perfectly concur with him. Judgment that moiety of the money attached be paid to Elizabeth Pringle, administratrix of John Pringle, by George Emlen, the garnishee, and that the remaining moiety be paid to William APCarty, the plaintiff in this action. Vide 4 Vez. jun. 396, in the exchequer in 1779, wherein it is held that assignee, executor or separate creditor coming in the [196] right of one partner against the joint property, comes into nothing more than an interest subject to an account between the partnership and partner, and therefore to the joint debts. An assignee, under a separate commission of bankruptcy, has only the same right to stand in the place of the bankrupt by the common law, not under the bankrupt laws.