
    *M’Cullough and Others v. Sommerville. Sommervilie v. M’Cullough and Others.
    July, 1836,
    Lewisburg.
    (Absent Tucker. P., and Brooke, J.)
    Insolvent Debtor—Preference of Creditors.--It is entirely fair and legal for a debtor in failing- circumstances to prefer, in payment, one just creditor, or one set of creditors, to another.
    Partnership—Assignment under Seal, by One Partner— Effect. -Though one partner cannot in general bind his copartner by deed, so as to make it operative at law as a deed, yet an assignment by one partner of the effects of the firm, which would be lawful if there were no seal, will not be allowed in equity to be defeated by the circumstances of a seal being annexed to the instrument
    Same—Same— Same—Qiiajre. —Whether an assignment of partnership effects, made by one partner by instrument under his seal, would not. at law, be as effectual and binding on the other partner, as if there were no seal V It seems, that it would.
    Same—Power of Resident Partner to Secure Creditors. “-It is competent lor the resident and sole managing partner of a firm (the other partner being a resident of another state) to sell and dispose of the partnership effects, or give a lien on them to the bona fide creditors of the firm.
    Same—Deed by Resident Partner Conveying Individual and Firm Property to Secure Separate and Social Creditors—Reformation in Equity.- By deed executed in the individual name of the maker, and purporting on its face to convey his individual property, for the payment of individual creditors named in the deed, in two classes, according1 to a certain order and preference therein established, a considerable amount of property, real and personal, is conveyed and assigned to trustees ; that property, however, includes not only the whole individual property of the grantor, but also the whole partnership effects of' a mercantile firm, of which he is the managing: partner (the other partner being a nonresident) and some of the creditors of each class provided for in the deed are in fact creditors of the firm, and not of the grantor individually, though all the creditors provided for have debts justly due them, either from the firm or the individual: Held, though the deed neither mentions the partnership, nor distinguishes the social effects and social creditors, from the individual property and individual creditors of the grantor, it is yet not fraudulent, either in fact or in law; and the court of chancery will reform the deed, according to the probable intent of the grantor, and the justice of the case, and ap-Ply the partnership fund in payment *of the partnership creditors, and the individual fund in payment of the individual creditors, observing the order and preference established by the deed.
    Chancery Practice—Trust Deed—Taking Fund Out of Hands of Trustee.—Case in which, under the circumstances, a fund conveyed in trust for payment of creditors, was properly taken out of the hands of the trustees by the courts of chancery.
    Judgments—Discharge of Debtor from Custody—Effect—Priorities. — A judgment creditor, .whose debtor, after being taken in execution, has been discharged from custody by the jailor, for nonpayment of the jail fees, is remitted to the lien of his judgment, and will be entitled to satisfaction out of the debtor’s land, in preference to creditors claiming under a deed of trust executed by the debtor, conveying the land, but not recorded In the county where it lies.
    By indenture dated the 2d of October 1833, Edward M’Cullough of Harrison county, reciting that he was indebted to various individuals and mercantile firms (who were named) and was desirous to secure the payment of the debts due them, conveyed and assigned to John Gifford and Patrick M’Cullough, their heirs and assigns, all the goods, wares and merchandise then in his storehouse in Clarksburg, and all bonds, notes, debts, claims and accounts to him then owing, together- with his store books; also his household and kitchen furniture, and sundry other personalty; also eight hundred acres of land in Lewis county, with the stock and farming utensils thereon; also all other property of every description, and all other rights, claims and interests whatsoever, belonging to the grantor: upon trust that the said Gifford and Patrick M’Cullough should sell the land and personal property, and collect the debts, in the manner and on the terms particularly mentioned in the deed, and out of the proceeds, after deducting therefrom all necessary and legal charges and expenses, pay to R. B. Spalding of Baltimore, and twelve other individuals and mercantile firms named in the deed, in succession as they were there named, the full amount of their claims respectively; and after they were fulljr satisfied, should apply the bal-anee to discharge the debts *due to James Adams junior and company, of Pittsburg, and seventeen other individuals and mercantile firms named in the deed, distributing the payments equally amongst them in proportion to their several claims. After the payment of all the enumerated debts, the deed provided that the balance, if any, should be paid over to Edward M’Cullough, or to his order. It also authorized the trustees to take immediate possession of all the property conveyed.
    This deed was signed and sealed by Edward M’Gullough and the trustees, and was duly recorded in Harrison county; but it did not appear to have been ever recorded in Eewis county.
    At the time this deed Was executed and recorded, Edward M’Cullough and a certain John P. Gillespie, who resided in Pennsylvania, were partners carrying on mercantile business in Clarksburg ; and it appeared that all the stock of goods and the debts conveyed by the deed were the property of the xJart,le:rs':1ip- But the deed did not mention Gillespie, or refer to any partnership between the grantor and any person whatever: it purported to be the individual conveyance of Edward M’Cullough, and to assign his individual property, for the payment of his individual creditors; though, in point of fact, as well creditors of the firm, as of the grantor individually, were provided for in each class by the deed.
    On the 15th of November 1833, Maxwell Sommerville, one of the creditors of the second class provided for in the deed of trust, filed a bill in the circuit superiour court of law and chancery for Harrison county, stating, that on the 7th day of October 1833’, Edward M’Cullough, having been surrendered by his bail in a suit instituted by the complainant, on the law side of the court, against M’Cullough and Gillespie upon a promissory note executed by them for a partnership debt, confessed a judgment for 938 dollars the amount of the *siote, with interest and costs, and being charged in custody by the complainant, yet remained in confinement under that charge. The bill then set forth the execution of the trust deed aforesaid, and alleged, that the grantor had thereby conveyed and transferred all his property of every description, including his interest in the stock of goods on hand and the debts due to the firm: that this deed was lodged with the clerk of Harrison county to be recorded, on the 2d of October 1833, being the day preceding that appointed by law for the commencement of the term at which c'omplainant’s judgment was rendered: that complainant, being one of the creditors provided for in the deed, was entitled to claim the benefit of its provisions as to the property which the grantor could convey, and to insist on the due execution of the trust: that Gillespie was no inhabitant of the commonwealth, but resided in Pennsylvania, and the complainant was therefore entitled to subject his interest in the said stock of goods and debts, to the payment of his demand: that both the trustees in the deed were foreigners and aliens, being irishmen, never naturalized in this country, and one of them, Patrick M’Cullough, ’ was the brother of the grantor, while the other was a young man, who had recently arrived in this country from Ireland, and had been employed as a clerk in the store of M’Cul-lough and Gillespie at Clarksburg; and both the said trustees were moreover wholly irresponsible individuals, owning no property of any description : that, connecting these circumstances with the grantor’s pertinacity in insisting that these individuals (and Gifford especially) should be named as trustees, and his obstinacy in remaining in custody and refusing to discharge himself by taking the oath of insolvency, though he alleged that he had honestly surrendered all his property for the benefit of his creditors, and with the further fact that the trustees were daily having private interviews with him, and acting according- ‘"'to his directions, complainant was led to entertain strong doubts of the fairness and honesty of Edward M’Cullough’s designs in making that conveyance, and to believe that it was his true intention to receive the proceeds of the trust property from the trustees, and apply them to his own use, and thereby defeat his creditors in the recovery of their demands: that complainant had therefore cause to apprehend, and did greatly apprehend, that the said trustees would waste and misapply as well the property of Edward M’Cullough, as the interesi of Gillispiein the partnership stock and the debts due the firm; and was advised, that he was entitled to call upon the court to protect and take charge of the trust fund and the effects of Gillespie, and subject them to the payment of the debt due complainant. Wherefore the bill prayed, that Edward M’Cullough, Gillespie and the trustees might be made defendants thereto, and compelled to answer the same on oath ; that the trustees might be required to give security for the forthcoming of the property, as well of M’Cullough as of Gillespie, in their hands, and for their faithful accounting for the money received by them from the collection of the debts; and in default of their giving such security, that the officer of the court might be directed to take possession of the property, the said trustees be injoined and restrained from collecting any of the debts, and a receiver be appointed to collect them ; that the trust property might be applied to the legitimate purposes of the deed; that Gillespie’s interest in the stock of goods and the partnership debts might be subjected to the payment of the debt due the complainant; and that he might have such other and general relief as his case required.
    On the filing of the bill (in vacation of the circuit court) the judge granted an injunction to restrain the trustees from collecting any of the debts or disposing of any of the property conveyed and assigned by the trust *deed, unless they should enter into bond and security with the clerk of the court, in the penalty of 15,000 dollars, payable to the sheriff of Harrison, and conditioned that they should well and truly account for all money or effects which had or might come to their hands by virtue of the said deed, and pay over the same according to the orders of the court to be made in the cause; and in case of their failure to give such bond, the sheriff was directed to take possession of all the evidences of debt and the other property mentioned in the deed.
    The trustees never gave the security required by the chancellor’s order. Neither did they ever answer the complainant’s bill; which, as to them, was taken pro confesso.
    Publication having been duly made against Gillespie the absent defendant, and he failing to appear and answer, the bill was taken pro confesso as to him also.
    At May term 1834, Edward M’Cullough answered the bill. He said, that being indebted to sundry persons, creditors of the firm of which he was the active partner (which, however, was nowhere described in the answer, by name or otherwise) and believing that justice towards his creditors required respondent to transfer all his estate of every description for their benefit, he proceeded to do so, by executing the trust deed in the bill mentioned. That deed, he alleged, was executed in good faith, for the purposes therein stated, and no other. He insisted that the trustees (who, he said, were only designated as such, after many other persons had refused to act in that capacity) were perfectly trustworthy, and in all respects well qualified for their office. He expressed his perfect willingness that the court should, during the term, decree a sale of the estate conveyed by the trust deed, on such terms as would advance the interest of the creditors, giving to each creditor the preference secured to him by the deed.
    *During the same term, R. B. Spalding and eleven other individuals and mercantile firms (some of them creditors of Edward M’Cullough individually, others creditors of M’Cullough and Gillespie, but all being among the creditors provided for in the deed, either in the first or second class, and all having judgments against Edward M’Cullough, obtained at that term or the proceeding) were severally, on their respective petitions, admitted as parties to the suit, and let in to a participation of the trust fund. Meredith & Spencer, who were also creditors of Edward M’Cullough individually, and had an action then pending against him, but who were not named or provided for in the deed, were in like manner admitted as parties, on a like petition filed by them. At the term of the court held in May 183S, a creditor of the partnership who had not sued at all, but was provided for in the first class by the deed, and another creditor of Edward’ M’Collough, provided for in the second class, who had recovered a judgment at October term 1834, were also admitted as parties, on their respective petitions. At the same term (May 1835) Shaw, Tiffany & Company, individual creditors of M’Cul-lough, who were not named or provided for by the deed in either class, but had recovered a judgment at October term 1833, for 116 dollars 10 cents with interest and costs, presented their petition, in which they stated, that M’Cullough, having been
    prayed in execution by them on their judgment, and committed to custody, remained in prison until the 22d of October 1834, when he was-discharged by reason of the failure of the petitioners to pay the jail fees: and that the trust deed executed by M’Cullough had never been recorded in Lewis county. They prayed, that they might be made parties to the suit; that satisfaction might be decreed to them out of the proceeds of the property in Lewis county; and general relief. They were admitted as parties accordingly.
    ^During the term held in May 1834, the court-ordered that E. Marsh deputy sheriff of Harrison county, who was thereby appointed a commissioner for the purpose, should make sale of all the property, real and personal, conveyed by the deed, in the manner and upon the terms particularly specified in the order, and report his proceedings to the court, in order to a final decree. The same E. Marsh had been, by a previous order, appointed receiver in the cause.
    At May term 1835, the court ordered that the cause be referred to master commissioner Reed, for the purpose of ascertaining the amount of the debts due the respective creditors of Edward M’Cullough, and of M’Cullough and Gillespie; and that the said commissioner report the same forthwith to the court, in order to a final decree. The-commissioner accordingly reported debts of the firm amounting to 3838 dollars 21 cents, and individual debts of M’Cullough amounting to 2461 dollars 41 cents. The claims of the partnership creditors provided for in the first class, amounted to 2083 dollars 57 cents; those of the individual creditors of M’Cullough in the same class, to 601 dollars 49 cents.
    By the report of E. Marsh the commissioner and receiver, it appeared that the property of the firm produced 1983 dollars 47 cents, and the private property of M’Cullough produced 1124 dollars 18 cents, which last amount included 694 dollars the proceeds of the land in Lewis county.
    By documents filed in ' the cause, it appeared that on the 22d of October 1834, M’Cullough was discharged from custody by the jailor, for default of payment of the jail fees, not only in the suit of Shaw, Tiffany & Company, but also in the suit of the complainant Sommerville, and in several other cases in which other creditors had, as before stated, recovered judgments against him.
    *On the 26th of May 1835, the cause came on to be finally heard in the circuit court. The reports of commissioner Reed, and of commissioner and receiver Marsh, to which there were no exceptions, were approved and confirmed by the court, and Marsh was allowed the charges and expenses incurred by him in executing the orders of the court for the sale of the property and collection of the debts, and also a commission of 5 per cent, on the gross amount which came to his hands. The court then proceeded to declare its opinion, that the deed of trust executed by M’Cul-lough was fraudulent as to ■ Gillespie and the partnership creditors, and wholly invalid and ineffectual, as well as to the land and individual effects of Edward M’Cul-lough, as the partnership effects of M’Cul-lough and Gillespie; that as the complainant Sommerville, at the time of filing- the bill, had the body of .Edward M’Cullough in custody, which was, in contemplation of law, a satisfaction of his judgment, and as he was moreover claiming under the deed of trust, he had no right to proceed, at the same time, as an attaching creditor of Gillespie the absent defendant; that though the land in Lewis county (the deed not having been recorded there) might have been subjected to elegits, yet as, at the time when the trust property was brought within the control of the court, none of the creditors were in a situation to sue out such executions, by reason of having elected to take the body of M’Cullough, and as he had consented to a sale of the land in this cause, at a time when there was no judgment lien thereon, and the ca. sa. liens thereon having been subsequently lost, the proceeds of the land were consequently discharged from any liability by reason of the judgments, and should be treated in the same manner as the funds produced bjr M’Cullough’s personal estate; and that the creditors who had obtained judgments were entitled to no priority over those who had not. Wherefore the court decreed, that the *deed of trust be set aside and annulled: and that the fund in the power of the court (iirst deducting therefrom the costs incurred in the prosecution of the suit, which the complainant was declared entitled to recover) be distributed among the creditors claiming the same, ratably, according to the amount of their respective demands, applying the proceeds of the partnership effects to the payment of the partnership* debts, and the proceeds of the individual property of Edward M’Cullotigh, including the land, to the payment of his individual debts, and applying any balance of either fund, if any there should be, in aid of the other.
    Edward M’CulIough, Shaw, Tiffany & Company, R. B. Spalding, B. S. Elder & Sons, A. Hart & Company, A. Groverman & Son, and Erskine, Eichelberger & Company (which said Spalding, Elder & Sons, Hart & Company, Groverman & Son, and Erskine, Eichelberger & Company were creditors provided for in the first class by the deed of trust) and the complainant Maxwell Sommerville, respectively appealed from the decree, to this court.
    G. H. Lee, for appellant Sommerville.
    W. A. Harrison, for the other appellants.
    
      
      Iinsolvent Debtor - • Preference of Creditors. — A debtor, even though he be in failing- circumstances, may lawfully prefer one creditor to another and may make a valid deed of trust for that purpose. See, citing-the principal case, Dance v. Seaman, 11 Gratt. 781; Evans v. Greenhow, 15 Gratt, 156; Young v. Willis. 82 Va. 299; Skipwith v. Cunningham, 8 Leigh 280: Leonard v. Smith, 34 W. Va. 456, 13 S. E. Rep. 484, In this last case, it is said that the right to give such preference has been recognized by a current of binding decisions running back through two generations.
      See further, foot-note to Skipwith v. Cunningham, 8 Leigh 272; foot-note to Gordon v. Cannon, 18 Gratt. 387: monographic note on “Assignments for the Benefit of Creditors’' appended to French v. Townes, 10 Gratt. 513.
    
    
      
      Partnership-Bond of One Partner for Firm Debt~ Lificet on Liability of Other Members.-In Weaver v. Tapscott, 9 Leigh 430, a member of a `firm hired slaves for the partnership and executed a bond for the hire in his individual capacity with another person as surety. Judge Cabell, in delivering his opinion. said that the cases of Sale v. Dishm an, 3 Leigh 548. and M'Cullough v. Sommernsrrville, 8 Leigh 415, showed that the execution of the bond by one member did not extinguish the obligation of the other members of the firm for the debt. To the same effect, see principal case also cited in Brooke v, Washington, 8 Gratt. 254.
      In Jones v. Neale, 2 Pat. & H. 352, itis said: “When real estate is purchased by partners with partnership funds, to be used tor partnership purposes, and considered and treated by the partners as partner-slfip stock, itis to be deemed, so tar as the legal title is concerned, asan estate held in common by the partners: bnt as to the beneficial interest, it is to be considered in equity as effected with a trust for the benefit of the partnership until the accounts are settled and the debts paid. Holding as tenants in common; each partner may sell his individual interest in the land to whomsoever, and for what purposes he pleases, subject to the equity of the partnership. He may give a preference to a partnership creditor, and make a deed conveying his share of the land as tenant in common to secure the payment of the debt of the preferred creditor, And this conveyance will be good and valid both at law and in equity, and will have priority over the claims of all other creditors. These principles are fully sustained by the cases of M’Cullough v. Sommerville, 8 Leigh 415; Anderson & Wilkins v. Tompkins, 1 Brock. R. 457: Coles Adm’x v. Coles, 15 John. R. 159; and Dyer v. Clark’s Adm’r et als., 5 Metcalf 562. ”
    
    
      
      Same— Power of Resident Partners to Secure Creditors.—A partner has a right to convey the social effects (save real estate) to trustees, to pay specified creditors of the firm, and this without the assent of his co-partner, where that co-partner resides out of the state, and the grantor is sole manager of the concern. And hence he may give a preference to a particular creditor, or to a class of creditors, although the consequence of such preference may. inacase of a deficiency of funds, defeat the claims of postponed creditors. For this proposition the principal case was cited with approval in Hill v. Postley. 90 Va. 2023, 17 S. E. Rep. 946; Williams v. Gillespie, 30 W. Va. 589, 5 S. E. Rep. 212; Bowen v. Clark, 8 Fed. Gas. 1051; foot-note to Gordon v. Cannon, 18 Gratt. 887.
      In Williams v. Gillespie. 30 W. Va. 589, 5 S. E. Rep. 212, it is said that this doctrine, since the decision oi the principal case, has ever been considered the settled law in. Virginia, and that it is therefore the law of West Virginia.
      But see extract from Baer v. Wilkinson. 35 W. Va. 428. 14 S. E. Rep. 3, emoted, in foot-note to Gordon v. Cannon, 18 Gratt. 387.
    
    
      
      Same—Deed Conveying Individual and Fin>i Property to Secure Separate and Social Creditors Reformation in Equity.—in Gordon v. Cannon, 18 Gratt. 388, It. A. & Go. slopped business, and R. and R. two of the members of that firm and P. formed the firm ■of R. R. & Co. They failed, and conveyed all the assets of both firms, and the individual property of R. in trust to pay indiscriminately a debt, of R. and the debts of the two firms; and they required a release. It was held that the deed was valid: but that it would be reformed so as to apply the property of each to pay first the debts of that person or firm from whom or which the property was derived. Three j udges delivered opinio’ns. President Moncure. with whom Judge Joynes concurred, in delivering the opinion of the court, oiten cited (see pages 403, 404. 405, 407, 408, 409, 413.) the principal case, and based his opinion on the decision in that ease. Judge Joyner, in his concurring opinion, said that whatever were the grounds on which the court proceeded in reforming the deed in the principal case, it equally applied to the case at bar. Judge Uivior in his dissenting opinion, also discussed the decision in the principal case (pages 418, 419. 420, 421, 422, 425). and. while he approved that, decision, said that he thought the decision oi the majority of the court in the case at bar proceeded from a misconception of the principal case. After discussing, the principal case at some length, and distinguishing it from the case at bar, he said: “In my view, this case of M'Cullough v. Sommerville is authority only for this position, namely, that where the effects of a firm and its acting partner are promiscuously devoted by trust deed to individual and social debts, the court will throw each class on its peculiar fund; and is, by no means, authority for this other position, that the court will proceed a step furtber, and uphold, by analogy thereto, the jumbling of two partnership concerns through this ingenious function of construing distributive^ such a different provision for the adjustment of partnerships. * * * * I do not, understand my brothers as disagreeing with me upon the illegality of subjecting the assets of two concerns interchangeably to the creditors of each; but they remedy it by a reformation of the deed, which I think questionable, and not sanctioned by the authority of M'Cullough & als. v. Sommerville, which they invoke to that end.”
      In Peters v. Bain, 133 U. S. 670, 10 Sup. Ct. Rep. 359, the principal case and Gordon v. Cannon, 18 Gratt. 388, was cited as holding that where a conveyance includes all the property of the grantors as partners and individually for the benefit of partnership and individual creditors, it should be construed distributively, and the partnership assets be applied to the payment of partnership debts, and the individual assets to individual liabilities.
      See principal case also cited in Straus v. Kern-good, 21 Gratt. 590.
      Same—Partnership Creditors—Right to Separate Estate.—The principal case was the subject of considerable discussion and difference of opinion in Morris v. Morris, 4 Gratt. 293. In that case. Judges Daniel and Brooke, considered the principal case as adopting, as .a general principle of equity, the rule that, in the case of an insolvent partnership, the partnership assets must be applied to the payment of the partnership debts and the separate assets of the partners to the payment of their separate debts, in accordance with the general rule which prevails in bankruptcy. Ou the contrary, judge Allen, with whom Judge Cabell concurred, did not think the principal case recognized any such principle, and confessed himself unable to understand on what grounds the court undertook to reform the deed. Only four j udges sat in this case, and, as the court was equally divided, it was left a q uestion whether partnership creditors are entitled to share in the separate estate of their debtor with the separate creditors of such debtor. See Morris v. Morris, 4 Gratt. 313, 336, 337, 344: Gordon v. Cannon, 18 Gratt. 412, 421. 422.
      In delivering his opinion in Gordon v. Cannon, 18 Gratt. 412, Judge Joynes, who concurred in the opinion delivered by Moncure, P., did not discuss the case at bar but confined his remarks to the explanation of his views of the principal case. After referring to the discussion in Morris v Morris, 4 Gratt. 293 (see above), he said that he thought the principal case may have proceeded either on the ground supposed by Judge Daniel in Morris v. Morris, or on the group d that as Gillespie, the -partner of M’Cullough, did not execute the deed, tbe partnership creditors had an equity through him to charge the partnership assets with the payment of their debts; that, upon either ground, the partnership assets were misapplied by the deed so far as they were appropriated to the payment of the individual debts of a member equally with the debts of the firm, and, therefore, since it became necessary to reform the deed so as to secure the preference of the partnership creditors in respect to the partnership debts, justice to tbe individual creditors required a corresponding change In respect to the individual property, and that this was so even though there was no general rule requiring that the separate property of each partner should be devoted first to his separate debts; that, though M'Cullough v. Sommerville proceeded on the ground that the partnership assets must, by a general rule of equity, be first applied to the payment of partnership debts, it could not be considered as necessarily holding a corresponding doctrine in reference to separate property and separate debts of the partner.
      For the history of this question in Virginia, see foot-note to Morris v. Morris, 4 Gratt. 293.
    
    
      
      Chancery Practice—Trust Deed—Taking Fund Oat of Hands of Trustee.--See principal case cited in Terry v. Fitzgerald, 32 Gratt. 847.
    
    
      
      Judgments-See generally, monographtc note ou "Judgments" appended to Smith v. Charlton, 7 Gratt. 425.
      The principal case was cited in Taylor v. Spindle, 2 Gratt. 57.
      Fraudulent Conveyances—Creditors at Large Cannot Prevent,—It is well-settled law that none but a judgment creditor can have the assistance of equity to control, prevent, or interfere with, in any way, the disposition which a debtor may choose to make of his property. He may destroy it. give it away, convey it fraudulently, or sell it and waste the money, and no creditors at large can stop him by injunctions. There must be some specific right of the creditor against the property sought to be subjected, and having no certain claim upon the property of the debtor, he has no concern with his frauds. Zell Guano Co. v. Heatherly, 38 W. Va. 415, 18 S. E. Rep. 612, citing Rhodes v. Cousins, 6 Rand. 188, 190: Tate v. Liggat, 2 Leigh 84; Kelso v. Blackburn, 3 Leigh 299; M'Cullough v. Sommerville, 8 Leigh 415. But see Code 1849, p. 677, ch. 179, § 2; Code 1887, § 2460; Pol. Supp., § 2460. See further, monographic note on "Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris. 11 Gratt. 348.
    
   CARR, J.

Edward M’Cullough and John P. Gillespie were merchants and traders, carrying on merchandise at Clarksburg, Virginia, under the firm of M’Cullough & Gillespie. The concern seems to have been wholly under the management of M’Cul-iough ; Gillespie being a resident of Pennsylvania. On the 2d of October 1833, M’Cullough, having become much indebted, both in his individual capacity and for the firm, executed a deed to trustees, conveying all his private property and all the property of the firm, for the payment, 1st. of a list of creditors, in succession; and 2dly, of certain other creditors, ratably. The list of creditors to be first paid is *made up indiscriminately of private and social creditors; and so is the list of those to be paid ratably. , The property conveyed is indiscriminately thrown in, without any separation of the one class from the other. Indeed it does not appear from the face of the deed, that there is any partnership; the whole wears the aspect of an individual securing his individual debts; and he executes it, not for the firm, but simply as the deed of Edward M’Cullough. At the date of this deed, there were suits pending both against the firm and against M’Cullough individually ; and at the October term 1833 of the superiour court for the county of Harrison, he was (at the suit of creditors of both classes) surrendered by his bail, confessed judgments, and was prayed in execution. He remained in jail till October 1834, when he was discharged by the jailor, the creditors refusing to pay the jail fees. In November 1833, Sommerville, a judgment-creditor of the firm, standing in the second class in the deed of trust, filed a bill in the same superiour court, praying to take the trust fund cut of the hands of the trustees, upon certain charges against them, and that the court would carry the said deed into execution ; praying also, that the absent partner might be proceeded against, and his interest in the firm condemned to pay the debt of the plaintiff. The judge received the bill, and granted the retaining order prayed for. In May 1834, M’Cullotigh answered, averring the honesty of his purpose in executing the deed, and expressing his perfect willingness that the court-should, during its present term, make an order for selling the trust fund, on such terms as should be most for the interest of the creditors; giving to each the preference given in the deed of trust. At the same term, the creditors generally) who arc named in the deed, having obtained judgments on the law side of the court, prayed, by their petitions, to be made parties to the suit, and let in to their proportion of the fund; and some who *haá not yet gotten judgments, and others who were not named in the deed, preferred the same prayer, and were all made parties. At the same term, the court ordered a sale of the trust fund; the cause having been previously set for hearing, the absent defendant properly proceeded against, and the bill taken for confessed against him and the trustees. In May 1833, Shaw, Tiffany & Co. were permitted, on their petition, to make themselves parties ; and their petition states that they obtained a judgment against M’Cullough in October 1833, for 116 dollars 10 cents with interest and costs, and that he was prayed in execution, and discharged for failure to pay prison fees, irt October 1834. They state his deed to secure certain creditors, and that said deed had never been recorded in Lewis county, where the lands conveyed by it were situated; and they (not being of the number of favoured creditors) pray that their judgment may be satisfied out of the proceeds of the Lewis land: the land having been then sold, and the proceeds in the hands of the court. These are the only parties who impugn the deed, and claim in opposition to it. A reference of the claims of the creditors was ordered, and a report made, which has not been excepted to: and finally, on the hearing, the court set aside the deed altogether, as being fraudulent and void, and decreed that the fund be distributed among the creditors ratably, the social creditors being confined to the social subject, and the individual creditors to the individual subject; and that if there should be a surplus of either fund, it should go to the creditors of the other. From this decree the defendant M’Cullough and seven of the creditors have appealed.

The first question is, was the deed fraudulent. and therefore properly set aside? If it was, the preference it gives to favoured creditors would fall along with it: if not, that preference must stand, and govern the court in the distribution of the fund. For it is unquestionable *law, that a debtor in failing circumstances may prefer one creditor, or one set of creditors, to another; nor is his right to do so, at all weakened or impugned by the maxim that equality is equity. This maxim is justly a favourite one in the courts of equity, in the cases to which it applies; but cannot be permitted to interfere with the right which a debtor has (where there is no existing lien) to secure this or that creditor, or class of creditors, in preference to others. Such preferences are forbidden by the bankrupt system, and the spirit of that system is pretty strongly infused into some of the english decisions; but yet even in England, the right of the debtor to make such preferences, is, in general, clearly admitted. I will cite a few cases to shew this. In Small v. Oudley, 2 P. Wms. 427, an assignment was made to a particular creditor, to secure money lent by him to the trader, and this but the day before the act of bankruptcy was committed. The master of the rolls said, “There may be just reason for a sinking trader to give a preference to one creditor before another; to one that has been a faithful friend, and for a just debt lent him in extremity, when the rest of his debts might be due from him as a dealer in trade, wherein his creditors may have been gainers; whereas the other may be not only a just debt, but all that such creditor has in the world, to subsist on: in this case,’ and so circumstanced, the trader honestly may, nay ought, to give the preference.” So in Cock v. Goodfellow, 10 Mod. 489, a mother made an assignment to secure the fortunes of her children, given by the will of her husband, and placed in her hands as guardian; and lord chancellor Parker sustained it against the assignees of bankruptcy, though made but a short time previous to the act of bankruptcy. In answering some of the objections to the deed, he says, ‘ ‘The objection against it because made so near the act of bankruptcy, is a very frivolous one; for the deeds meant by the statute • are deeds made to *defraud creditors, whereas this was a deed made to secure a just debt. But it is objected that this deed is made to give an undue preference to children. I know not what law or reason there is to favour this objection. Any body may make his creditor executor, and then the law gives him a preference: not only so, but the law allows the executor to give any other creditor in-equal degree a preference. A man who knows he must be a bankrupt, may by law pay off any of his creditors; and this power, as it may be abused, so on the other hand may be very properly exercised. There may be particular obligations in point of gratitude,” &c. This doctrine of the courts of equity is also sanctioned by courts of law. In Estwick v. Caillaud, 5 T. R. 424, lord Kenyon says, “It is neither illegal nor immoral, to prefer one set of creditors to another.” In Nunn v. Wilsmore, 8 T. R. 528, the same judge saj's, “Putting the bankrupt laws our of the case, a debtor may assign all his effects for the benefit of particular creditors.” I refer also to the case of Murray v. Riggs, 15 Johns. Rep. 571, reversing the decree of chancellor Kent (see Riggs v. Murray, 2 Johns. Ch. Rep. 565), in which Thompson, C. J., reviews the cases upon this subject, and concludes that “it is a settled and unshaken principle, both at law and in equity, that a failing debtor has a just, legal and moral right to prefer, in payment, one creditor or set of creditors to another.”

Was this deed fraudulent? There is no evidence in the record to establish the fact; nothing to shew an intention to withdraw the effects of the firm from the creditors, or by any covin or collusion to disappoint their claims. On the contrary, the whole property of every kind and description, not only of the firm but of the individual partner M’Cullough, is conveyed; thus stripping himself and the firm (so far as the grantor could) of every atom of property, and subjecting it to the payment of the creditors named. And when the bill is *filed to «take this fund from the trustees, and put it under the guardianship of the court, to be administered by the court, he promptly answers, assenting to the measure, and praying that the court would forthwith order a sale of the whole subject: stipulating only that the proceeds shall be applied to the favoured creditors. This surely evinces that there was no fraud in fact, either perpetrated or intended. But it is said that there is fraud in law, — fraud in the attempt by one partner to convey all the property of the firm, and to devote this property to the payment of specified creditors, without giving his copartner any voice in the matter; and moreover in jumbling together the separate and spcial funds, and directing the separate and social creditors to be indiscriminately paid according to the list. Bet us look at these objections in their order. 1st. One partner undertakes to convey the partnership property by deed. Suppose we admit that this deed is ineffica-cious against the other partners; this surely does not shew that it is fraudulent and void: for the same rule which says that one partner cannot bind another by deed (Gow on Partnership, 75, 76), lays it down that the deed will be binding on the partner executing it; which it could not be, if fraudulent and void. But further: this deed, binding the grantor, conveys, for the purposes of the trust, at least all his individual property, and all his portion of the partnership funds. Thus, so much is secured for the payment of the creditors in the schedule. Would it be right to take from these this preference, fairly gained, and which the debtor had an undoubted right to give, because he has attempted to convey his copartner’s share likewise? I cannot think so.

But this is said upon the supposition that the deed is ineffectual to convej7 the copart-ner’s interest. Is it really so? I question it exceedingly. Let it be remembered, 1. That the whole of the social fund is personal estate ; the only land in the deed being the private property'xof M’Cullough. 2. That M’Cullough is the sole managing partner; Gillespie residing in another state, and never, that we hear of, meddling with the business. 3. That the purpose for which the effects are conveyed, is the payment of bona fide creditors; of claims established beyond question. And though the deed does not devote the social fund exclusively to the social creditors, and the separate fund to the separate creditors, does it comport with the mild and beneficent spirit of equity, for this cause (the result doubtless of ignorance and mistake) to annul the deed? Is it not better to reform it, by throwing each class of creditors upon its own fund, and thus reach the real justice of thevcase, and probable intention of the grantor? This is a power of frequent exercise in equity; one instance of which is in reforming joint bonds, and making them operate as joint and several; “upon the reasonable presumption, that either through fraud, ignorance or inadvertence, the meaning of the parties has not been carried into effect.” I repeat, that considering that the social fund consists of personalty alone, that M’Cullough is sole manager, and that the deed conveys this fund to pay social debts, I am strong-ly inclined to believe that the deed is effectual to convey that whole fund. We know that personal property may be disposed of by parol contract and delivery, and that every partner of a firm has this pow'er over every atom of social property, unless it be real estate. Suppose this partner had advertised that on such a day he would sell off the store goods, the bonds, and all the other property contained in this deed, and that the creditors of the firm should have liberty to purchase to the amount of their debts: would not such a sale as this have been perfectly within his powers? As much so, unquestionably, as it was to sell to a customer a yard of cloth. If, instead of this, he had given a parol authority, or one in writing under his hand only, to one or two agents to make sale *of the partnership stock of goods and other effects, all would agree that it was an act within his power; and this without consultation with his partner; for that partner having no part in the management, and not even a residence, within the state, every thing, of necessity, was left to the discretion of M’Cullough. The ideas expressed upon this subject, though they appear to me sound and strong, I do not know that I should have had the confidence to follow, with my own opinion only to rely on. But I may truly say, non mens hie sermo. I have the support of one among the most eminent jurists and wisest men that our country can boast. I mean the late chief justice Marshall. The case of Anderson & Wilkins v. Tompkins and others, decided by him in the circuit court of the United States for the state of Virginia, m June 1820, involved the very point before us. There was a mercantile firm doing business in the city of Richmond under the style of Tompkins & Murray. On the 29th of April 1819, Murray had embarked for England, leaving all the effects of the company in the hands of Tompkins, the partner remaining in this country, who continued for a short time to conduct the business of the concern. The pressure of their affairs was such, that in May the house stopped payment, and Tompkins, for himself and partner, conveyed all the effects of the company, and also the separate property of himself and partner, to trustees, for the payment, first, of certain creditors named in the deed, and then of those who should bring in their claims, —the american creditors within sixty days, and the foreign creditors within six months. In November 1819, Murray, the other partner, while in England, executed a deed conveying his moiety of the property of the house, to certain creditors of the firm. Here was a conflict of deeds; and as that of Tompkins was first in date, the last deed could only operate on that property which was not conveyed by the first. The question, then, was as to *the legal extent of Tompkins’s deed.

The chief justice decided that it conveyed the whole partnership effects, except real estate. In his own lucid and strong manner, he shewed the general powers of partners over the effects of the firm, and the limitation to those powers. He then proceeded thus: “It is said, this transfer of property is by a deed, and that one partner has no right to bind another by deed. Eor this, a case is cited from 7 T. R. which I believe has never been questioned in England or in this country. I am not, and never have been, satisfied with the extent to which this doctrine has been carried. The particular point decided in it, is certainly to be sustained on technical reasoning, and perhaps ought not to be controverted. I do not mean to controvert it. That was an action of covenant on a deed, and if the instrument was not the deed of the defendants, the action could not be sustained. It was decided not to be the deed of the defendants: and I submit to that decision. No action can be sustained against the partner who has not executed the instrument, on the deed of his copart-ner. No action can be sustained against the partner, which rests on the validity of ' such a deed as to the person who has not executed it. This principle is settled. But I cannot admit its application to a case where the property may be transferred by delivery under a parol contract. Where the right of sale is absolute, and the change of property is consummated by delivery, I cannot admit that a sale so consummated is annulled by the circumstance that it is attested by, or that the trusts under which it is made are described in, a deed.* No case-goes thus far, and I think such a decision could not be sustained on principle. The powers of applying' all the goods on hand for sale, to the payment of the partnership debts, is, I think, a power created by the partnership, and the exercise of it must be regulated by circumstances.”

following this high authority, I conclude that a partner has a right to convey the social effects (save real estate) to trustees, to pay specified creditors of the firm, and this without the assent of his co-partner, where (as here) that copartner resides out of the state, and the grantor is sole manager of the concern. But’ it may be objected, that admitting this, the grantor has not, in our case, acted for the firm, but in his own name alone. True, this is the form which the scrivener has given to the deed; but equity looks at the substance. The grantor has, in truth and in fact, conveyed all the social fund, and has designated a number of the social creditors to be paid, greater than that fund will satisfy.

There is still one more point to settle; that is, the claim of Shaw, Tiffany & Company. They are not named ' in the deed, and they claim in opposition to it, standing on the lien of their judgment (which is against M’Cullough individually) and contending that the deed, though valid between the parties, is, as to them, void, so far as relates to the Lewis land, because it was never recorded in the county court of Lewis. It is clear that the law declares (1 Rev. Code, ch. 99, ? 1, pp. 361, 362), that the deed shall not be good against a purchaser for valuable consideration, not having notice thereof, or any creditor, unless proved in the manner directed, and recorded in the court of the county, city or corporation in which the land or some part thereof lieth. It is equally clear that this deed, though recorded in Harrison county', has not been recorded in Lewis, where the land lies. Buf it is contended that none but judgment creditors who have preserved in full force the lien of their judgment, can take advantage of this defect in the *deed, and that the plaintiffs are not in that situation; because, having charged M’Cullough in execution, .the lien of their judgment was merged in the ca. sa. lien; and though he was afterwards discharged for failure to pay the jail fees, this did not remit the plaintiffs to the lien of their judgment, as they could take out no elegit or other execution, without first suing out a scire facias. It is true that after the discharge from execution by the jailor, no new execution could issue without a scire facias: but is it true that this circumstance disabled the plaintiffs from coming into equity as judgment creditors, impeaching the deed, and getting satisfaction out of the proceeds of the land? I think not. My opinion is, that the capacity to sue out a scire facias was sufficient for this. In Coleman v. Cocke, 6 Rand. 618, judge Green, delivering the opinion of a full court, says, “In all the cases upon the subject in the english court of chancery, it seems to have been the uniform course to consider a judgment, with the capacity to acquire the right to sue out an elegit, by scire facias or otherwise, as such a lien as gave jurisdiction to the court, whenever other circumstances justified its interposition. And in no case has there ever been any enquiry whether the judgment had been kept alive by taking out execution within the year, or otherwise, or whether it had been actually, revived or not, in the case of the death of either party, unless from some cause (for instance, the great lapse of time) it was doubted whether the party could revive his capacity to sue out elegit, by reviving his judgment.” He refers to the case of Burroughs v. Elton, 11 Ves. 29. In that case lord Eldon says, “In general cases, as I understand the practice, judgment creditors go into the Master’s office; judgment creditors in general, .who cannot stir at law without a scire facias, go and prove before the master with the creditors, without such step, but sustaining their proof by the ordinary course; giving in evidence the record of the judgment, and swearing that the debt is due.” Upon these authorities I am satisfied that Shaw, Tiffany & Company are properly before the court as judgment creditors ; that the deed, so far as relates to the Lewis lands, is not good as to them; and that their debt must be satisfied out of that subject. With this exception, lam of opinion that the deed is valid: that the court should so reform it as to throw the social creditors upon the social fund, and the private creditors upon the private fund: that as to the social fund, it be distributed thus; 1. pay the social creditors of the first class, to each his full debt, interest and costs (if sufficient for that purpose) in the order designated by the deed; 2. the residue, if any, to the creditors of the second class, pro rata: as to the private funds, 1. pay to Shaw, Tiffany & Company their full debt, interest and costs; 2. to the creditors of the first class, to each in the order designated by the deed, his full debt, interest and costs (if sufficient for that purpose) ; and the surplus, if any, to the creditors of the second class, pro rata: and that the decree be reversed, and the cause sent back, with directions to be proceeded in according to the principles now declared.

CABELL, J.

Myj brother Carr has taken so full a view of this case, as to render it unnecessary for any thing farther to be said. But there is one point on which I wish to be indulged with a few remarks.

The personal property in possession, and the choses in action, of a mercantile company, pass, like those of an individual, by delivery, or by written assignment without seal.

*That one partner living in this state, and having the management of all the business of the company (the other partners residing out of the state) has the power to deliver over and to assign the goods and choses in action of the company, to the creditors of the company, in discharge of the partnership debts, is a position too clear, in my opinion, to require either argument or authority. If he can do this directly, I think it equally clear that he may indirectly, by delivering1 and assigning them to an agent or trustee, to be applied in payment of the partnership debts. And if he may do this as to all the creditors, he may do it as to any one or more of them; and hence he may give a preference to a particular creditor, or to a class of creditors, although the consequence of such preference may, in case of a deficiency of funds, defeat the claims of the postponed creditors.

As to real estate, which the law declares shall pass by deed only, it is clear that the deed of one partner will pass nothing but his own interest therein ; because the deed of one partner is not the deed of the others, nor has he, as a partner, the power to execute a deed for them.

But no seal being necessary to the transfer of the personal effects, in possession or in action, of a mercantile concern, and one partner having the power to transfer them, his transfer of them is binding on the company without a seal. Does, then, the annexation of a seal to the instrument of transfer destroy that virtue which the instrument would have had without the seal? Is this a question to be seriously propounded to a court of equity and good conscience, which, in the absence of legal enactments, looks at the substance, regardless of the forms of contracts? Reason and common sense give the answer. As a. seal, except in cases where the law requires one, gives, in a court of equity, no additional validity to an instrument, the annexation of a seal *to an instrument, valid without it, cannot impair its validity. In Sale v. Dishman’s ex’ors, 3 Beigh S48, there was a purchase of corn, on credit, by Berryman & Dishman; and the terms of the contract were evidenced by a covenant, signed and sealed by Sale, and by Berryman alone, in the name of the firm of Berryman & Dishman. Dishman having died, Berry-man, as surviving partner, came to a settlement with Sale, and executed his bond for the balance found due; but as he after-wards became insolvent, a suit in chancery was brought by Sale against Berryman and the executors of Dishman, on the original contract. The bill was dismissed on the hearing, by the chancellor; but this court reversed the decree, and granted the relief prayed for. The president said, “It is apparent from the original agreement, signed by Berryman in the name of the firm, for the purchase of the corn from Sale, that the firm was looked to as debtors for the amount. It is natural that it should be so, as Dishman lent his name, to give credit to the firm. The contract thus signed, and (by mistake of received principles, which deny the right of one partner to bind another, at law, by a seal) being sealed also, was nevertheless binding in equity upon both partners.” I concur in these remarks of the president. Although the covenant executed by one partner imposes no obligation, as a covenant or sealed instrument, on the partner who did not sign and seal it, and therefore cannot be sued on as such, yet the covenant or sealed instrument of one partner, relating to a matter as to which he had a right to contract for the company, is evidence of the contract of the company, and that contract is binding on them as a parol contract; at least it is binding in equity. How far it may be evidence at law also, where there is no technical reason against it, I do not deem it necessary now to decide. Suppose, however, a bond or note due to a firm be fairly transferred, for valuable consideration, *by written assignment indorsed on the bond or note, and signed and sealed by the acting partner; what technical reason, even, can be given, why an action at law may not be brought on it by the assignee? I confess I am unable to perceive any. Such a case would not come within the influence of the decision in Harrison v. Jackson &c., 7 T. R. 207, for in that case the plaintiff declared on a written instrument as the covenant of all the partners, when in fact it was sealed by one only. But in the case supposed, the assignment might be stated without any reference to the seal.

I concur in the decree prepared for the court by my brother Brockenbrough.

BROCKENBROUGH, J.,

pronounced the decree of the court of appeals.

The court is of opinion that the deed executed by Edward M’Cullough to his trustees, bearing date the 2d day of October 1833, is not fraudulent, either in fact or in law: that although one partner cannot bind his co-partner by deed, so as to make it operative at law as a deed, yet that a court of equity, which regards substance rather than form, will not allow an assignment of personal goods, which would be otherwise lawful, to be defeated by the circumstance of a seal being annexed to it: that as the said M’Cullough was the sole managing'1 and active partner of the firm of M’Cuilough & Gillespie, the other partner being a resident of another state, it was competent for the said M’Cullough to sell and dispose of, and give a lien on, the goods, book debts, credits, and all the other chattels of the firm, to the bona fide creditors of the firm; that as the purpose of the deed was to provide for certain bona fide creditors of the firm, as well as for individual creditors of the said Edward M’Cullough, although the deed does not devote the social fund exclusively to the social creditors, and the separate fund to the individual creditors, yet it *will be proper for the court, in the exercise of its undoubted powers, to reform the deed in this respect, by throwing each class of creditors upon its own fund, and thus reach the justice of the case, and the probable intent of the grantor; and that it was entirely fair and competent, and consistent with the principles of law, for the said Edward M’Cul-lough to prefer one creditor, or set of creditors, to another.

The court is further of opinion that as the said M’Cullough’s tract of land, conveyed by the said deed, was situated in Lewis county, and as the deed was not recorded in that county, but only in Harrison county, it was not binding on any bona fide creditor of the firm, or of the said M’Cul-lough, so far as it regards the said tract of land, and that any creditor having a judgment lien, not included in the deed and not claiming under it, but asserting- his title against it, will be entitled to be paid his debt from that land, in preference to any creditors provided for b3r the deed, and claiming under it: that as Shaw, Tiffany & Company, individual creditors of Edward M’Cullough, had obtained a judgment against him in October 1833, under which, and others, he was taken in execution and kept in jail till October 1834, and was then discharged from custody by the jailor, by reason of the failure of the creditors (at whose suit he was in custody) to pay the jail fees; and as the said plaintiffs had then the capacity to sue out a scire facias to have a new execution against the goods and chattels or lands and tenements of the said M’Cullough, according to the statute in such case made and provided, they were remitted to their judgment lien, which bound the land in Lewis county, and have a right to be satisfied out of the land, or the proceeds thereof, in preference to any creditor named in the deed, and claiming under it.

The court is further of opinion that the circuit court acted with entire propriety in relieving the trustees from *the execution of the trust, and in taking a control of the funds for the purpose of distribution ; but that the court erred in vacating the deed, and in distributing the funds ratably amongst all of the creditors, without regard to the preferences established by the deed.

It is therefore adjudged, ordered and decreed, that the decree of the said circuit court, rendered on the 26th day of May 1835, be reversed and annuled, and that the-appellants B. S. Elder & Sons, A. Hart & Company, A. Groverman' & Son, Erskine, Eichelberger & Company, E. B Spalding, and Shaw, Tiffany & Company, recover from the appellee Maxwell Sommerville their costs in this court expended. And the court proceeding to render such decree as the said court ought to have rendered, it is further adjudged, ordered and decreed, that after paying the charges and expenses in the said decree mentioned, including also the charge of the commissioner for his report, the social funds of M’Cullough & Gillespie under the control of the court be so distributed as to pay, 1st. the social creditors of the first class, to each his full debt, interest, and costs at law, in the order designated by the deed, if sufficient for that purpose: 2d. that if there be any surplus of the said social funds after payment of the social creditors of the first class, it be distributed amongst the social creditors of the second class, pro rata. That the private funds of Edward M’Cullough, exclusive of the proceeds of the land sold in Lewis county, be distributed, 1st. to the individual creditors of the first class, to each his full debt, interest, and' costs at law, in the order in which they are named in the deed, if sufficient for that purpose: 2d. that if there be any surplus of the said individual funds after payment of the individual creditors of the first class, it be distributed amongst the individual creditors, námed in the deed who are to take pro rata. And lastly, that as to the proceeds of the land, they are first to be applied to the paj-ment of *the debt, interest, and costs at law, of the appellants. Shaw, Tiffany & Company : and the surplus thereof, after the said payment to Shaw, Tiffany & Company, shall be paid, 1st. to such of the individual preferred creditors-as may not have received their full debt, interest and costs at law, from the individual personal fund above named; and 2dly, to the second class of individual creditors named in the deed, who are to, receive pro rata shares of their debt, interest and costs at law.

And it is further adjudged, ordered and decreed, that each party pay his own costs in the said circuit court: and this cause is. remanded to the said circuit court of Harrison, to be further proceeded in according to the principles of this decree. 
      
      TUe above is taken from a manuscript copy, forming-part of a series of cases decided by chief justice Marshall in the circuit court of the United States for Virginia, and reported by mr. John W. Brockenbrougb. The work is about to be put to press, and will, I have no doubt, form a valuable addition to our stock of law learning. Note by the judge. — The case is reported 1 Brock. Rep. 456.— Note by reporter.
     
      
      A scire facias to have a new execution against the goods and chattels, lands and tenements of the debtor, when discharged by the jailor for nonpayment of the jail fees by the creditor, is given by the act of February 12, 1823, § 5. Supp. to Rev. Code, ch. 145, § 5, p. 204. — Note by the judge.
     