firm paid out of the assets of the firm, consequently, pro tanto, out of the chattels seized by the sheriff. See authorities below. It is equally clear that in this respect the purchaser from the sheriff is in no better position than the partner whose undivided share has been sold; a suit in equity, therefore, becomes necessary, in order that the partnership accounts may be taken, and the partnership property duly applied. Skipp v. Harwood, 2 Swanst. 586; Taylor v. Fields, 4 Ves. 396; Young v. Keighley, 15 id. 557; Dutton v. Morrison, 17 id. 205, 206; Ex parte Hamper, id. 404, 465; Re Wait, 1 J. & W. 608. A sheriff cannot seize and sell partnership property upon an execution against one of the partners, for his private debt. The creditor can have only the right of his debtor, which is an interest in the surplus after paying the partnership debts. Gibson v. Stevens, 7 N. H. 352; Morrison v. Blodgett, 8 id. 238.

Execution against firm has preference in some states. An execution against a firm has the preference over one against an individual partner; but where property is sold on an execution against a partner, though after the delivery of the execution against both partners, it is a valid sale if sufficient time had not elapsed for advertisement and sale under the other execution. Fenton v. Folger, 21 Wend. (N. Y.) 676.

Where an officer had attached the partnership effects, in a suit against one of the partners, and afterward, with the consent of the firm, suffered the effects to be applied to pay a partnership debt due to a stranger, it was held that he was not responsible to the first attaching creditor, in an action for not having seized the goods in execution; and although the effects were applied to pay a judgment against the firm, which included some demands not yet due and payable, yet this circumstance was held of no importance, the claim being good between the parties to the judgment, and resting, not on priority of attachment, but on the superior ity of the plaintiff's title as a creditor of the partnership. Commercial Bank v.

Wilkins, 9 Me. 28. In the case of a dormant partnership, an attachment of the stock in trade in the hands of the ostensible partner, in a suit against him alone, has preference to a subsequent attachment of the same goods by another person in an action against the partners. Lord v. Baldwin, 6 Pick. (Mass.) 348. The sole surviving partner is, in law, the owner of all the partnership effects; and the partnership funds in the hands of garnishees may be ordered to be paid over to separate creditors of the surviving partner, on their giving bond and security to answer any claim which may afterward be made on the funds. Knox v. Schepler, 2 Hill (S. C.), 595. Firm property is not holden by an attachment in a suit based on the joint and several notes of the partners, and not being a partnership debt. Buffum v. Seaver, 16 N. H. 160. And, generally, a creditor of one member of a partnership cannot take the interest of such partner in any article of the partnership property, unless enough is left to satisfy the creditors of the firm; and if the partnership be insolvent, the partnership creditors have the right to have the property thereof applied to the payment of their debts. But if the firm is solvent when the attachment of the individual partner's interest is made, a lien is acquired which cannot be divested in favor of the partnership debts by its subsequent insolvency, even though such insolvency be previous to the recovery of judgment against the individual partner. Willis v. Freeman, 35 Vt. 44. It is held in New York that a sheriff cannot, upon an execution issued in an attachment suit, brought against the members of a limited partnership, levy upon and sell the right, title, and interest of a special partner, in the goods, chattels, assets, and accounts of the firm, and that upon a sale of the interest of a special partner in the property of a limited partnership, the purchaser is bound to know that such sale is illegal. Hence, it is not necessary for the special partner, though present, to give any notice. More especially is such notice unnecessary, if the purchaser is himself a partner in the firm. It is also held that a levy upon the in

Share of deceased partner.

terest of a special partner in the property of the firm, upon attachments, will not deprive such partner of his interest, or the right to an account, or prevent him from collecting any surplus remaining over and above such claims as the sheriff has upon it. Harris v. Murray, 28 N. Y. 574. The division, by partners, of the partnership assets between themselves, and the transfer of such assets by the individual partners, in payment of their private debts, when the part nership is insolvent, is, in point of law, a fraud upon the partnership creditors. And if a party, to whom such transfer is made, has distinct notice that the property belongs to the copartnership, and simply gives up therefor certain overdue notes, he is not a bona fide purchaser, and cannot hold the property as against the firm creditors. Ransom v. Van Deventer, 41 Barb. (N. Y.) 307. A firm, to secure creditors, agreed to transfer certain coal barges, etc., to them, and executed a bill of sale, the creditors at the same time agreeing to take the real estate of one of the firm and pay the liens thereon, which were for his individual debts; deeds for the property were made, but the creditors did not pay the liens, and in an action in the name of the individual partner against the creditors on their agreement to take his property and pay the liens, the defendants claimed that it and the bill of sale were one transaction, and that they were entitled to defalk, against the amount to be recovered against them, damages for breach of the partnership contract in not turning over to them the property sold, to which they covenanted that they had good title. Held that the defense was not valid, its effect being to divert to the creditors of the partnership a fund arising from private property, specifically appropriated to private debts. Jackson v. Clymer, 43 Penn. St. 79. See, also, to the same effect, Toombs v. Hill, 28 Ga. 371; Conroy v. Woods, 13 Cal. 626; Thornton v. Bussey, 28 Ga. 302; Hill v. Beach, 12 N. J. Eq. 31. An execution creditor of one of two partners may levy upon partnership effects, as well as upon other personal property of his debtor, though

the goods in specie are not bound thereby, nor do they pass by sale under the writ, but only the interest of the debtor on final settlement of partnership accounts; and a concealment of that interest is fraudulent. Smith v. Emerson, 43 Penn. St. 456. Where there are partnership and separate creditors, and partnership and separate property, and the firm is insolvent, each class has priority upon its respective estate, and must first resort to it for payment: after satisfaction of the claim of either class, the other may come upon the residue, according to its several legal and equitable rights. Black's Appeal, 44, Penn. St. 503. Wintersmith v. Pointer, 2 Metc. (Ky.) 457. Where a plaintiff in a judg ment given him by a firm composed of three members, for liabilities incurred upon notes discounted for their use, continues his liability as accommodation drawer of new notes given by the firm, after he knows that one member has retired, he cannot, in a scire facias to revive his judgment, in which the two surviving members of the old firm aud the administrator of the retiring partner, who died after suit brought, are defendants, recover for the new liabili ties assumed after the dissolution, unless they are renewals of the notes of the old firm. The defendant's liability under the judgment is measured by the plaintiff's liabilities, and not by his payments for them; but the judgment will be controlled by the court, and no re covery permitted for liabilities discharged by the defendants themselves. Where, upon the scire facias, usury on the part of holders of certain notes is claimed as a defense, if established, and the proper deduction made in an action on the notes, the judgment will be controlled by the court to that extent, for no more can be recovered on the judgment than what the plaintiff was legally liable for in their behalf; but it is not a valid objection to the plaintiff's recovery, for his rights cannot be involved in the usury dispute. Hartley v. Kirlin, 45 Penn. St. 49. Where a partner buys real estate in his own name, and gives his individual bonds and mortgage in part payment

therefor, the firm is not liable to the seller for the unpaid purchase money, though it appear by the firm books that the land was bought on firm account, and a declaration of trust was after ward executed by the parchaser but not recorded, declaring that the money paid was partnership funds, and that the land was held by him in trust as partnership property. After failure of the firm, on sale of the land by their assignee, the partnership creditors were held alone entitled to share in the proceeds, and not the vendors, who could claim only against the purchasing partner. North Pennsylvania Coal Co.'s Appeal, 45 Penn. St. 181. So under assignments for benefit of creditors by a firm, and by one of the partners, the separate creditors of the latter cannot claim a pro rata distribution out of the firm assets, while firm debts remain unpaid, though the assigning partner was largely a creditor of the firm. Houseal's Appeal, 45 Penn, St. 484. A partnership debt is recoverable against the executors of a deceased partner, even pending a suit against the survivors. Creswell v. Blank, 3 Grant (Penn.), 320. Partnership creditors are not entitled to a mortgage on the partnership property, nor can a special mortgagee be compelled to seek payment on one rather than another part of the property mortgaged. The right attaches to all the property. Lallande v. McRae, 16 La. An. 193. The joint debts must first be paid from the partnership property, before any portion of it can be applied to the payment of the individual debts of the partnership, and the fact that a separate creditor of one of several partners has levied his attachment on the partnership property, and has subsequently made an agreement with a trustee to whom the debtor has conveyed his property, to receive from the proceeds of its sale a payment of the attachment debt, gives him no title to the partnership property or the proceeds of its sale, as against the superior equity of a subsequeut attaching creditor of the partnership. Burpee v. Bunn, 22 Cal. 194; and the fact that a private creditor has obtained a judgment and levied his execution, gives

him no additional rights. Convey v. Woods, 13 Cal. 626; Thompson v. Frist, 15 Md. 24. B and L, as a firm were members of two other partner, ships, and all three firms failed. The creditors of the two other firms put attachments on property belonging to B. & L. before the creditors of that firm attached it. It was held that the cred, itors of B. & L. were entitled to the proceeds of a sheriff's sale of the property. Bullock v. Hubbard, 23 Cal. 495. Where, on the dissolution of a partnership, one partner takes the partnership effects, and executes to the other a bond, with surety, conditioned for the payment of all the partnership debts, such bond is in equity a trust fund in which all the creditors have an interest, and which they (the partners being insolyent) can subject to the payment. If snit is brought on such bond for the benefit of the creditors, in the name of the obligee, and the creditors are made parties defendants with the obligors, and judgment rendered thereon, the surety cannot, without the knowledge or consent of the creditors, by an agreement with the obligee, obtain satisfaction of such judgment without payment thereof in full; and any payments made on such judgment, to the obligee in good faith, should be credited thereon. Wilson v. Stilwell, 14 Ohio St. 464. one partner is dormant and secret, and a suit for a partnership debt is brought, and judgment is recovered against the ostensible partner alone, the judgment is for a partnership debt, and, in the application of the property on which the partnership business is transacted, will be preferred to individual debts of the ostensible partner. If, in such case, the ostensible partner convey his separate part of the stock in trade to the dormant partner, in payment of his individual debt, the conveyance is fraudulent as to partnership creditors. Elliott v. Stevens, 38 N. H. 311.

Where

Sheriff holds joint possession under levy. - After the levy and previous to the sale of the interest of a member of a firm in the copartnership goods, the sheriff may hold joint pos session with the other members of the

firm. Where, upon such a levy, the other members of the firm, covenant with the sheriff to deliver to him the property on request, or pay the debt, it is no answer to an action for the breach of such covenant, that the property was partnership property, and had, subsequent to the covenant, been applied by them to partnership uses. Burrall v. Acker, 23 Wend. (N. Y.) 606.

Rule in Pennsylvania. — In Pennsylvania, in an action against a partnership, if process be served on one partner and judgment recovered and execution levied on the partnership property, it is the duty of such partner to give notice of it to his copartners, and a neglect to do so subjects him to an action. Devall v. Burbridge, 6 W. & S. (Penn.) 529. On a sale of partnership goods, the proceeds are first applicable to partnership debts, in a contest between creditors of the firm and creditors of the individual members. Bevan v. Allee, 3 Harr. (Del.) 80.

Rule in North Carolina. - In North Carolina, on an attachment against one partner for his separate debt, only his separate property can be seized. Jar. vis v. Hyer, 4 Dev. (N. C.) 367. And the purchaser takes them subject to the claims of the partnership; but the sheriff is not affected by this equity between the purchaser and the other partners. Tredwell v. Roscoe, 3 Dev. N. C.) 50.

Execution against one partner-how may be levied. On a judgment against a partnership, an execution may be levied upon the joint property, or upon the separate property of either partner, or of all the partners, for the whole debt. Pierce v. Jackson, 6 Mass. 242; Tappan v. Blaisdell, 5 N. H. 190; Wilson v. Conine, 2 Johns. (N. Y.) 280; Commercial Bank v. Wilkins, 4 Me. 28; Lord v. Baldwin, 9 Pick. (Mass.) 348; French v. Chase, 6 Me. 166; Allen v. Wells, 22 Pick. (Mass.) 450; Tucker v. Aukley, 6 Cranch, 34; Pierson v. Nesbit, 1 Dev. Rep. 315; Jarvis v. Hyer, 4 Dev. Rep. 367; Knox v. Schepler, 2 Hill (N. Y.), 595; 12 La. 230. On an execution for the separate debt

of one partner, the share of such partner in the partnership property may be levied upon; but the sheriff can sell only the actual interest which such partner has in the joint property, after the accounts are settled, or subject to the partnership debts. Ex parte Smith, 16 Johns. (N. Y.) 106; Nicoll v. Mumford, 4 Johns. Ch. (N. Y.) 525; Rodriquez v. Heffeman, 5 id. 428; Johnson v. Evans, 7 Scott's N. R. 1035. A court of equity will not stop such execution or sale, by injunction, to await the liquidation of the accounts of the partnership. Moody v. Payne, 2 Johns. Ch. (N. Y.) 548. See Ex parte Smith, 16 Johns. (N. Y.) 106, in note; and Wilson v. Conine, 2 Johns. (N. Y.) 280. "It is a principle acknowledged in the equity jurisprudence of the United States, that partnership debts must be paid out of the partnership estate, and private and separate debts out of the private and separate estate of the individual partner. If the partnership creditors cannot obtain payment out of the partnership estate, they cannot in equity resort to the private and separate estate, until private and separate creditors are satisfied; nor have the creditors of the individual partners any claim upon the partnership property until the partnership creditors are satisfied. 3 Kent's Comm. 65; Wilder v. Keeler, 3 Paige's Ch. (N. Y.) 167; Morgan v. His Creditors, 20 Martin's Louis. Rep. 599; McCulloh v. Dashiel, 1 H. & G. Md. 96; Payne v. Matthews, 6 Paige, 19; Hull v. Wood, 2 Mc Cord (S. C.), 802. Where a surviving partner died, indebted to partnership and separate creditors, and left in the hands of the administrator joint property, and also separate property, the separate creditors were allowed to receive as much out of the separate property as the joint creditors had received out of the portion of the partner in the joint property, and both classes of creditors being thus equalized, the balance of the separate property was directed to be divided equally among them. Bell v. Newman, 5 Serg. & R. (Penn.) 85; Estate of Perry, 1 Ashm. (Penn.) 347. Goods belonging to a firm cannot be held in attachiment upon a writ, or by seizure upon execution, against an individual partner,

for his separate debt, so long as any debt remains due from the company. All that can be taken is the interest of the debtor in the firm; not the partnership effects themselves, but the right of the partner to a share of the surplus that may remain after all the debts are paid. Tappan v. Blaisdell, 5 N. H. 190; Church v. Knox, 2 Conn. 514; Brewster v. Hammet, 4 id. 540; Barbour v. Har ford Bank, 9 id. 407; Witter v. Rich ards, 10 id. 37; 2 Dall. 278; 2 Yeates, 190; 4 id. 477; 5 Serg. & R. 87; 1 Penn. 198. In Maryland, it was held that one-third of the partnership effects in that state, of those partners residing in Great Britain, who had become bankrupts, might be attached by a citizen of Maryland for a debt due to him from one of the partners; and that the attaching creditor might have a judgment without showing the state of the accounts as between the partners. Wallace v. Patterson, 2 H. & M'H. 463. In Connecticut, the interest of one partner in a debt due to the partnership cannot be taken by process of foreign attachment, to satisfy the individual debt of the partner, without showing from the state of the partnership accounts as between the partners, and with reference to the solvency of the partnership. what the right or interest claimed amounts Church v. Knox, 2 Conn. 514. See, also, Brewster v. Hammet, 4 id. 540; Fisk v. Herrick, 6 Mass. 271; Lyndon v. Gorham, 1 Gall. (U. S. C. C.) 367.

to.

In Pennsylvania, a debt due to a partnership may be attached at the suit of the creditor of one of the partners, and the interest of such partner in the partnership demand is bound by such attachment. M'Carty v. Emlin, 2 Yeates (Penn.), 190. A, B and C were partners, and after the death of A. B and C recovered a judgment against D, founded on a partnership transaction; E, a creditor of B and C, then brought foreign attachment to recover the debt of D, and introduced the judgment against him to show his indebtedness to B and C; it was held that the representatives of A were not precluded by

1 See Booth v. Parks, 1 Molloy, 465.

such judgment from showing that B and C were debtors to the partnership, and had no interest in the debt against D, but that it belonged to A alone. Barber v. Hartford Bank, 9 Conn. 407. The doctrine that the separate debt of one partner should not be paid out of the partnership estate, until all the debts of the firm are discharged, does not apply until the partners cease to have a legal right to dispose of their property as they please. It is applicable only when the principles of equity are brought to interfere in the distribution of the partnership property among the creditors. M'Donald v. Beach, 2 Blackf. (Ind.) 55. In Georgia, a judgment creditor of a partner, in his individual capacity, may levy on the partnership effects, and sell his debtor's interest therein, without reference to the claims of the creditors of the firm. Ex parte Stebbins & Mason, R. M. Charlton's Rep. 77. In Vermont it has been held that partnership creditors have no priority over a creditor of one of the partners, even as to the partnership effects. Root v. Shepherdson, 3 Vt. 120. Massachusetts, it was decided that at law the separate estate of one partner was liable on execution for a copartnership debt, and that the execution was not to be defeated by a subsequent attachment by a separate creditor of an individual partner. It is in equity only that joint creditors can be restrained from proceeding against the separate estate. Allen v. Wells, cited 3 Kent's Comm. 65 (Ed. 1840); McCullen v. Dashiell, 1 H. & G. (Md.) 96; Tucker v. Oxley, 5 Cr. (U. S. C. C.) 35. The effects of a non-resident partner may be attached, although there is one of the partners in the state. Conklin v. Harris, 5 Ala. 213. A creditor may attach the interest of one of the firm, subject to the paramount claim of partnership creditors. Douglass v. Winslow, 20 Me. 89. The proceeds of sale will at first be applied to liquidate the firm debts, and the balance, if any, may go to pay the private debts to the extent of the partner's share. Clark v. Ales, 3 Harr.

2 Ante, p. 4.

In