Scudder v. Delashmut

Woodward, J. The interrogatories to the garnishee might have been carried somewhat farther, to show the consideration of the assignment from M. J. to W. W. Delashmut, but this was probably admitted to be unquestionable. There is nothing throwing suspicion upon it, and it is to be taken as a Iona fide transaction. The question presented to this court is, whether. the court below was correct in the instruction given, and in the refusal of that which was asked by the plaintiff. It is true, that as a rule, the partnership creditors have a priority of right in the partnership property. But what is the meaning of the rule, and where is it applicable ? Does it mean that the partnership creditor may step in, and take precedence of an individual creditor, at any time and under all circumstances ? The answer must be, that to enable the court to apply the rule, the case must be such that the court may marshal the debts and effects, and thus ascertain the amount of the joint liabilities, and of the joint property. In this manner, the court finds whether the entire assets are wanting to pay the joint creditors. Before the joint creditor can take the property from the individual creditor, who has an attachment or other lien, it must be ascertained that the property is wanted for this purpose —that is, that there are not more than sufiicient means for the payment of the partnership creditors. Therefore, it will be perceived, that the joint creditor cannot come in by his attachment alone, and oust the separate creditor from his prior attachment, or other lien. The former has not a lien which he may enforce in this manner, for himself alone, by his attachment. It is not yet ascertained that there is not sufiicient for the payment of both classes; and this cannot be done in his separate action at law, for the recovery of his debt. This is usually effected by the aid of a court of equity; but we are not called upon to, 43 and therefore will not, undertake to declare, that it cannot be done otherwise. 1 Story’s Equity, 625, et seq. It is to be remarked that the garnishee was not required to make the mortgage and assignment a part of his answer ; nor are they before us in any manner, so that we have no means of knowing whether the terms of that instrument affects the question. No error being found in the action of the court, the judgment is affirmed.