
    BARNETT’S APPEAL.
    One partner may confess a judgment against the firm, for a firm debt not yet. due, and the partnership property may be sold thereby.
    Such a judgment would be valid even though the partner had no right under the partnership agreement, to confess it, if the creditor was not aware of that fact.
    Appeal from the Common Pleas of Pluntington County. No. 119 Jan. Term, 1884.
    This was an appeal by John W. Barnett, Silas Hess, and David Caldwell, from a decree of the Court, distributing the proceeds of the Sheriff’s sale of personal property of Spahn, Hess & Co., and the personal property of Silas Hess. In the beginning of April, 1882, Phillip Spahn, Silas Hess, and John "W". Barnett, associated themselves together to carry on the business of manufacturing lumber, under the name and style of the “Spahn, Hess & Co.” Phillip Spahn, having a half interest, and each of the other partners a fourth interest. They purchased as a firm, about April 22, 1882, a steam-engine, and saw-mill from the Harrisburg Car Manufacturing Co., for which they were to pay .$2000. They paid $300 in cash, and gave a note for $200 payable in 60 days, another for $500, at 5 months, another for $500 at 10 .months, and one for $540 in 16 months. These notes were all ■dated, April 22,1882, and were discounted by the First National Bank of Harrisburg. These notes were signed by the partners 'individually. The $200 note was paid' when due. The .$500 note due Sept. 25,1882, was not paid, but $100 was paid on .account, and the firm gave a new note, at 60 days for $417.41, which note was signed by each partner, individually, and waived the benefit of the exemption law. This note was not paid, but a judgment note was given in place of it, when it fell due.
    This judgment note not having been paid, at maturity, the First National Bank of Harrisburg placed it in the hands of their attorney at Harrisburg for collection, who sent it together with the $500 note due in 10 months and the $540 note due in 16 months to Messrs. Petriken andMcNeil, with instructions to do the best they could to secure the same. On the 23rd Dec., 1882, Philip Spahn, one of the members of the firm gave a partnership judgment note for $1013.98 for the two notes above mentioned, the .$500 note and the $540, less the discount for the time the notes had to run. This judgment note was signed Spahn, ITess & Co, It was not under seal, but was given for partnei’ship debt. Judgments were entered on this note, and the judgment note before mentioned, and the sheriff levied upon the personal property of Spahn Hess & Co., and also on the personal property of Silas Hess, and J ohn W. Barnett. Hess and Barnett then filed petitions, and the writ was stayed, lien to remain,and a rule granted to show why the judgment should not be set aside, as to the two partners not joining in the same. And upon the other judgment, the writ was stayed, lien to remain, and a rule was granted to' show cause why the sheriff should not exhaust the firm property,, before offering for sale, the property of individual members of the firm. The Court afterwards made an order, directing the Sheriff to offer for sale, first the property of the partnership, or firm, and when that was exhausted, to offer for sale, the individual property levied upon. Afterwards there was a levy made upon a judgment by David Caldwell against Silas Hess, and also John W". Barnett, and the Sheriff levied upon the same property, that was levied upon, under the Fi. Fa. issued upon the judgment for $417.41. On Jan. 26, 1883, the Sheriff sold the personal property of Silas Hess for $725.87, and he also sold the personal property of Spahn, Hess & Co. for $1000, and the proceeds of these sales weré referred to an Auditor for distribution.
    The following facts were found by the auditor :
    Your auditor finds that the following facts have been proven:
    That the partnership judgment note that Philip Spahn gave to the First National Bank of Harrisburg, dated December 23d, 1882, at one day, for $1,013.41 and on which judgment to No.. 128 Nov. Term was entered, was given for a partnership debt, and that it was not under seal. That the indebtedness for which this note was given was not due at the time said judgment note was signed.
    Second. That Philip Spahn signed the firm’s name of Spahn, Hess & Co., to said note without the knowledge or consent of either of his copartners, and that neither of them have ratified it, but protested against it.
    
      Third. That neither the Foundry and Machine Department of the Harrisburg Gar Manufacturing Go. no,r the First National Bank of Harrisburg had any notice of the alleged agreement that no member of the firm had a right to sign the firm’s name to notes unless the other members of the firm were present and •consenting to i't.
    He awarded the fund raised by the sale of the partnership property to the Harrisburg Bank.
    The Court affirmed the report absolutely, and decreed a distribution accordingly. John W. Barnett, Silas Hess and Daniel ■Caldwell then appealed and assigned for error the action of the Court in appropriating the fund, arising from the sale of the partnership property of Spahn, Hess & Co. to the plaintiff in fi. fa. No. 20 Jan. Term, ’83, and in not appropriating the fund .arising from the sale of the partnership property a sum sufficient to satisfy the interest and costs of fi. fa. No. 21 Jan. Term, 1888, .and in not distributing the-residue thereof to the several partners, -or to the creditors thereof having liens thereon, according to their respective interests in the property producing said fund, and in not appropriating the whole fund, arising from the indiv idual or ■separate property of Silas Hess to the plaintiff in fi. fa. No. 16 .April Term, 1883.
    
      D. Caldwell, Esq. for appellant
    argued that Spahn had no authority to give the note on which judgment No. 128 Nov. Term, 1882 was confessed and that the judgment, therefore, only hound him, Avho signed the firm name to it; Bitzer vs. Shunk, 1 W. & S. 340; York Bank’s Appeal, 12 C. 460; Vandegrift vs. Redheffer, 10 W. N. C. 484. The effect of giving the note in •question by Spahn, rendered the firm insolvent, and was equivalent to making an assignment of the entire partnership property hy Spahn, for the benefit of one of the creditors of the said firm, which he could not do without the consent of his co-partners ; Cleaver vs. Brenzel, 2 Leg. Rec. Rep. 321; McCutcheon vs. Ackland, 1 Chester Co. Rep. 82; Sloan vs. Moore, 37 Penna. 223; Deckert vs. Filbert, 3 W. & S. 455. The case of Howell vs. Boss, 84 Penna. 129, relied upon by the auditor, was a case in which the partnership debt was due, and demandable, at the time the note was given, while here the notes were not due. The action of Spahn was beyond his powers as a partner; King vs. Faber, 22 Penna. 25; Trullinger vs. Corcoran, 32 P. F. S. 400. It was the duty of the Bank of Harrisburg to see whether. the other partners agreed to the giving of the judgment note by Spahn; Kaiser vs. Frederick, 2 Out. 528. The fund realized from the sale of Hess’ individual property should have been applied to Hess’individual debt; Walker vs. Eyth, 25 Penna. 216; Black’s Appeal, 44 Penna. 503; Paxson’s Appeal, 49 Penna. 199; Vandike’s Appeal, 17 Penna. 271, Bennett’s Estate, 8 W. N. C. 288; McCormick’s Appeal, 55 Penna. 252.
    
      M. M. McNeil, Esq.
    
    argued that the cases cited by the appellants were different from the case in hand and did not govern the case. In the case of Kneib vs. Graves, 72 Penna. 105 it was-held that the plaintiff was entitled to an execution against the partnership on the judgment confessed by T. Eimers, one of the-firm, and the satisfaction thereof out of joint effects ; Paxon vs. Beans, 3 Phila. 434; Taylor vs. Henderson, 17 S. & R. 456; Grier vs. Hood, 25 Penna. 433; Carey vs; Bright, 58 Penna. 84. The property of Hess was liable for the partnership debt, levy having been made upon it prior to the levy .upon the individual judgment of Hess; Merkle’s Appeal, 3 W. N. C. 110; Cumming’s Appeal, 25 Penna. 269; Silk vs. Prime, 2 White and Tudor’s Equity Cases, 391.
   The Supreme Court affirmed the decree of the Common Pleas and dismissed the appeal on the 9th of June, 1884, in the-following opinion:

Per Curiam.

The rule is settled that if one partner confesses judgment against the firm for a partnership debt, the interest of all the copartners in the firm property may be taken, in execution under-it and sold ; Harper vs. Fox, 7 W. & S. 142; Grier & Co. vs. Hood, 1 Casey 430; Ross vs. Howell, 3 Norris 129. It follows the fund was properly distributed.

Decree affirmed and appeal dismissed at the costs of the appellants.  