Meader v. Leslie

Hutchisnon, J. pronounced the opinion of the Court. — The only question presented is, whether this offset, and the demand sued, are so legally and equitably mutual, that the offset ought to be allowed. There is no doubt but they are mutual as respects the form of action. That is, no person but the plaintiff could maintain an action on this demand against the defendant. And this defendant could maintain no action upon his demand against any person but the plaintiff In this respect there is perfect mutuality. And, in all such cases, the legal right of action, and the legal liability to action, are so attached to the surviving partner, that the only reason for naming him surviving partner is, to give a true des-scriplion of the cause of action. In the general money counts, even this is not necessary. But the plaintiffcontends, that there is no equitable mutuality in this case — That the authorities go no farther than to show,that the surviving partner may file his partnership debt against his private debt — ^That this is an attempt to compel him to do it against his will, and that to the fraud and injury of the creditors of the partnership. This argument is ingenious, ánd would be conclusive, if the facts in the case showed what this argument assumes — - If the facts showed that there were creditors of the partnership of Meader and Eames that would be thus injured — that there was no property with which they could be paid. It appears to me we supposed the fact tobe so in the county court. Possibly it was often alluded to in argument, as a fact, and not so denied, but what we supposed it to be fact. But the case presents no fact of the kind. Nothing appears, that the partnership owe any debts, nor that there is any person who could call the partnership fund out of the plaintiff’s possession, should he receive it. This circumstance unites the legal and equitable mutuality. The judgment of the county court must be reversed, the defendant’s offset allowed, and he recover the balance. Judgement reversed,