
    Hubble v. Perrin and Hinkle.
    Bill in chancery can not be sustained to subject moneys owned by one or two partners to pay partnership debt, until the partnership estate liable to execution is exhausted.
    This cause came before Judges Hitchcock and Burnet, in Clark •county, 1827.
    The bill was filed under section 59 of the act directing the mode of proceeding in chancery.
    The complainant alleges that the defendant, Perrin, was formerly a partner in trade, with one Gibbs. That the firm of Perrin & Gibbs contracted sundry debts, which remained unpaid on the dissolution, of their partnership; that they are possessed of real estate in the county of Champaign; that several judgments were obtained against the firm, on which executions were taken out and levied on the said real ^estate ¡ that one of those judgments is in favor of the complainant; that the property levied on is wholly insufficient to satisfy the judgments ; that no other property of the said firm,, or either of them, can be found; and that the defendant, Hinkle, as clerk of the Supreme Court, has in his hands the sum of three hundred dollars, paid by virtue of a decree of this court, for the use of the defendant, Perrin. The prayer of the bill is, that the money so held may be applied in payment of the debt due to the complainant.
    Perrin, by his answer, admits the partnership and the judgments; hut he sets out and describes several tracts of land belonging to> himself separately, and a house and lgt belonging to the firm of Perrin & Gibbs, which are liable to be taken by the judgment creditors. He admits the money in the hands of Hinkle to be his, but insists that it ought not to be applied in payment of partnership debts, while there is partnership property undisposed of.
    Anthony argued for complainant.
    Mason, for the defendants.
   By the Court :

The facts stated in the answer are substantially made out by the exhibits. It appears that there is real estate belonging to the late firm of Perrin & Gibbs, which the complainant may resort to, if the property already levied on should prove insufficient. This being the fact, the bill can not be sustained. The statute authorizes a judgment creditor to resort to the chancery side of the court, to reach property or money in the hands of third persons, when the defendant has not real or personal property sufficient to satisfy the judgment, which can be taken in execution. This provision was made to prevent a failure of justice, and is to be resorted to only in cases of necessity. That necessity ought to be apparent, to give jurisdiction to this court. On the point, whether the facts on which the jurisdiction of the court depends, must be specially stated in the bill or not, there has been, and still is, a diversity of opinion among -the members of the court. But it is presumed, there can be but *one opinion, whether the facts must not be fully made out, at the hearing, in order to sustain the bill. In this respect, wo think there has been a total failure on the part of the complainant. He admits that he has an execution levied on real property, not yet disposed of, the proceeds of which can not be now known, and it is in proof that there is other property not levied on.

But there is another objection to the relief prayed. Equity will not lend its aid to subject the separate property of a partner to the payment of partnership debts while the joint property of the firm is unexhausted. That is the proper fund for the payment of partnership debts, and must be resorted to before the separate funds of the partners can be reached, through the agency of this court.

Bill dismissed.  