Walker v. Eyth

Supreme Court of Pennsylvania

Walker v. Eyth

25 Pa. 216

DecidedJuly 1, 1855

StatusPublished

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Bluebook

Walker v. Eyth, 25 Pa. 216 (Pa. 1855).

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Opinion

The opinion of the Court was delivered by

Lewis, C. J.

This was an action to recover a debt due to Eyth in his individual right. .There was an offer to set-off against it a debt due by Wallace & Eyth as partners. We may concede that the death of Wallace, after plea pleaded, left Walker and Eyth, as survivors, the sole debtors of each other at law: 5 Ser. & R. 493; 6 Ser. B. 582; but the claim of Eyth was his separate estate, and he had a right to appropriate it to his separate creditors. He might also, until deprived of dominion over his property, appropriate it to the payment of any one of his separate creditors whom he thought proper to prefer: Worman v. Wolfersberger’s Executors, 7 Harris 59. Such appropriation is in accordance with the rule in equity, that where there are partnership and separate creditors, each estate shall be applied exclusively, in the first instance, to the payment of its own creditors: the joint estate to the joint creditors, and the separate estate to the separate creditors: Bow 308. It is true that this equity has, in general, to be worked out through the medium of the partners: Story’s Eq. § 1253; Baker’s Appeal, 9 Harris 82. But in the case before us, Berg & Co. stand not only upon their own equity but upon that of Eyth, who had the right to appropriate his separate estate to the payment of his separate creditors, to the exclusion of the partnership creditors. He exercised that right before the death of Wallace had produced the effect of making him the sole debtor as surviving partner, while it left Walker alone liable on the demand on which this action is founded. As this was merely a change of legal liability, we do not see how it could deprive Eyth of his equitable [218]*218rights in the proper distribution of his separate and partnership assets. But the case does not require an opinion on this point, 'and we leave it undecided. It is clear, however, that an allowance of the proposed set-off would defeat the undoubted and paramount equities of Berg & Co. It was therefore properly rejected.

Judgment affirmed.

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The opinion of the Court was delivered by

Lewis, C. J.

This was an action to recover a debt due to Eyth in his individual right. .There was an offer to set-off against it a debt due by Wallace & Eyth as partners. We may concede that the death of Wallace, after plea pleaded, left Walker and Eyth, as survivors, the sole debtors of each other at law: 5 Ser. & R. 493; 6 Ser. B. 582; but the claim of Eyth was his separate estate, and he had a right to appropriate it to his separate creditors. He might also, until deprived of dominion over his property, appropriate it to the payment of any one of his separate creditors whom he thought proper to prefer: Worman v. Wolfersberger’s Executors, 7 Harris 59. Such appropriation is in accordance with the rule in equity, that where there are partnership and separate creditors, each estate shall be applied exclusively, in the first instance, to the payment of its own creditors: the joint estate to the joint creditors, and the separate estate to the separate creditors: Bow 308. It is true that this equity has, in general, to be worked out through the medium of the partners: Story’s Eq. § 1253; Baker’s Appeal, 9 Harris 82. But in the case before us, Berg & Co. stand not only upon their own equity but upon that of Eyth, who had the right to appropriate his separate estate to the payment of his separate creditors, to the exclusion of the partnership creditors. He exercised that right before the death of Wallace had produced the effect of making him the sole debtor as surviving partner, while it left Walker alone liable on the demand on which this action is founded. As this was merely a change of legal liability, we do not see how it could deprive Eyth of his equitable [218]*218rights in the proper distribution of his separate and partnership assets. But the case does not require an opinion on this point, 'and we leave it undecided. It is clear, however, that an allowance of the proposed set-off would defeat the undoubted and paramount equities of Berg & Co. It was therefore properly rejected.

Judgment affirmed.

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Bluebook (online)

25 Pa. 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-eyth-pa-1855.