Pierce v. Tiernan , 10 G. & J. 253 ( 1838 )

Chambers, Judge,

delivered the opinion of the court.

We think the proofs in the cause establish the claim of the appellant, against the partnership fund admitted to be in the hands of trustees of Wm. Duncan, which claim, so far as the same was allowed by the auditor’s report of 4th June, 1835, as a preference claim against the proceeds of the return cargo of the Betsey and Peggy, should have been decreed to the complainant. There is no evidence in the cause to establish any other claim as a preference claim against the proceeds of said cargo, and as by the agreement of the solicitors, no exceptions can be taken on account of the want of parties, this court can only decide upon the state of proof as if it were presented in a cause in which all persons whose interests may be affected were parties to the record, and represented by the solicitors who have assented to the agreement. This view of the case avoids any difficulty from the consideration that the several persons are not made defendants, from whom William Duncan is said to have purchased the goods constituting his proportion of the outward cargo.

Of these persons the representatives of James Dali and Co. alone are before the court, and the proofs are not furnished on which a preference can be allowed against the partnership fund for the amount of their sales on account of said cargo.

To the amount stated in the auditor’s report of 4th June, 1835, the complainant became a creditor solely in virtue of the partnership transactions between Duncan and himself; the advances made were exclusively for and on account of the partnership property and risk, and equivalent in every equitable view to an actual purchase by Pierce of the goods for and on account of the adventure which Duncan should have furnished; Pierce, in a word, procured his own moiety of the cargo, and then paid to Duncan (by giving his notes, which were subsequently paid by Pierce) one-half the amount which Duncan had contracted to pay for the residue of the cargo.

This payment to Duncan for a portion of the cargo agreed to be furnished by Duncan, and the item for excess of insurance paid by Pierce, beyond his moiety, constitute the aggregate of the preferred claim of Pimxe. For the balance of his claim, beyond the extent of the proceeds of the return cargo in the hands of the trustees, as well as for the other claims due to Pierce, resort must of course he had to the other assets in the hands of the trustees, by a distribution to be made with the other creditors of Duncan. For these reasons the court reverse the decision of the chancellor.

DECREE REVERSED.