Coe v. Simmons Boot & Shoe Co. , 61 Ill. App. 602 ( 1895 )

Mr. Justice Harker

delivered the opinion of the Court.

This is an appeal from an order of the Circuit Court, directing the sheriff of Livingston county to give preference to partnership execution creditors over individual creditors of members of an insolvent mercantile firm.

The executions of the individual creditors were prior to those of the partnership creditors.

We think the doctrine of qui prior est tempore patior est jure, applies.

The doctrine that firm property should first be subjected to the payment of firm debts in preference to individual debts, obtains only in equity. The law disregards such preference. It is founded upon the equities of the partners, and upon the equities of' the creditors. Each member of the firm has an equitable right to have partnership assets applied in the first instance to the satisfaction of partnership debts.

The right of firm creditors to have the firm assets so marshaled as to satisfy their debts first, can only be worked out through the equities of the partners. 1 Story, Equity Jurisprudence, Sec. 675; Singer, Nimick & Co. v. Carpenter, Exr., 125 Ill. 117; Hanford et al. v. Prouty et al., 155 Ill. 339; Wallace v. Stongall, 52 Ill. App. 471.

We do not entertain the view contended for by counsel for appellees, that the appeal should be dismissed, for the reason that appellant, being merely an officer holding the executions, is not personally interested in the proceeds of the sale.

The order is direct against him, and he has the right to have it reviewed by this court.

The order should be reversed and the cause remanded, to enable the Circuit Court to enter an order upon the motion consistent with the views herein expressed. Reversed and remanded.