Loney v. Bayly

Robinson, J. delivered the opinion of the Court. We agree with the Court below, that the decision in the former appeal between the parties to this record, 43 Md., 10 , is conclusive as to the questions before us. In that case, it was held, that the acceptance by the appellees, of their pro rata dividend, under the receiver’s sale, constituted no bar in an action at law, to the recovery of the balance due on their claim. ⁴⁴⁹ The Court said, they had a perfect right to receive this dividend, and that such receipt and payment of part of their claim imposed upon them no obligation, either legal or moral, to release the appellant from the payment of the balance due on said claim. Now the whole equity of the complainant’s bill, is founded upon what this Court has said, the appellees had a perfect right to do, namely, to file their claim and accept the dividend thereon under the receiver’s sale.

If this be so, we are at a loss to imagine upon what principle the appellant is entitled to the relief prayed. It is insisted, however, that the proceedings under which the partnership assets were sold, must be treated as a sale under a creditors’ bill, and that by the acceptance of the dividend thereunder, the appellees mzzst be considered as assenting to the terms and conditions in pursuance of which the sale was made. It is true that under a conveyance of all the debtor’s property, for the benefit of creditors, upon condition that they shall execute releases, if a creditor comes in and accepts his proportion of the fund, he will he bound by the conditions of the deed. But such a conveyance must embrace all the debtor’s property, not only his partnership, but also his individual property, because the creditor has the right to resort to both for the payment of his debt.

But it is hardly necessary to say, that an assignment of mere partnership property, on condition that the creditors shall execute releases, is not binding on them. Now what are the facts in this case? Upon the petition of one of the partners, a receiver was appointed to take charge of the partnership assets of Loney & Co. and he reports to the Court an offer from a third party of sixty thousand dollars for the stock of goods, and debts owing-to the