
    Henderson, Kirtland, North & Platt vs. Haddon, Slager & Co.
    
      Assignment — Fraud—Partnership.
    An assignment by one member of a firm, of the effects of the firm, for the benefit of creditors, held fraudulent, because of improper provisions of the instrument and the circumstances under which it was concocted and executed.
    Partnership creditors, whose demands were not due, held to have no equity to injoin separate creditors of a partner from attaching his individual property.
    BEFORE DUNKIN', CIL, AT ABBEVILLE, JULY, I860.
    This case came before tbe Court on exceptions to tbe following report of the Commissioner:
    “ The following statement of tbe facts of this case may assist in a full understanding of tbe same: '
    “In tbe latter part of 1858, Abrabam Slager, A. ~W. Had-don and Elias Slager, entered into a co-partnership for tbe purchase and sale of goods, and opened a country store at Martinville, in Abbeville District, having purchased a stock of goods from various merchants in New York.
    
      “ About tbe last of January, 1859, A. W. Haddon left tbe State, carrying off some of bis property with him, and nine or ten slaves. Elias Slager, another of tbs firm, left about tbe same time, or a few days after, leaving Abrabam Slager, the third partner, in possession of the store, stock of goods, &c.
    “ On the 6th Eebruary, 1859, tbe Sheriff of Abbeville District, by virtue of sundry executions against Abrabam Slager, and against the late firm of Slager & Levingston, levied upon tbe stock of goods of Haddon, Slager & Co., or Slager’s interest therein — took possession thereof, and closed up tbe store. On the 9tb February, the Sheriff having bail process against the said A. Slager, made search for him, but he was not to be found. 'On the same day, while concealing himself to avoid arrest, A. Slager executed the paper purporting to be an assignment 
       of his individual interest, and the interest of Haddon, Slager & Co., in tbe stock of goods and storehouse and lot to one S. S. Baker, for the uses and purposes therein mentioned. • On tbe morning of tbe 10th, Slager left the State. So far as known, neither of the partners has been in the State since. Sundry suits by attachment were immediately commenced against tbe firm, and against A. W. Haddon individually.
    "The bill was filed on 16th February, 1859, by Henderson, Kirtland, North & Platt, merchants of New York, of whom goods had been purchased by the firm of Haddon, Slager & Go, in October, 1858, and whose demands were not due at the time of the filing of the bill, in behalf of themselves and others, creditors of the firm under the same circumstances, praying an injunction to restrain the Sheriff from selling the stock of goods of Haddon, Slager & Co., or Slager’s interest therein, until an account could be had touching the partnership transactions — and injoining all and every creditor, either of the firm or the individual members thereof, from commencing suits at law, by attachment or otherwise, until the further order of the Court.
    “An injunction in accordance with the prayer of the bill was granted on the 16th February, 1859. At the same time the firm of Haddon, Slager & Co. was largely indebted to merchants in New York, all or nearly all of which indebtedness had not matured at the time of the filing of the bill.
    “Among other things, the bill charged that one John Thomas Haddon had aided and assisted the said A. W. Had-don to remove and carry off his property and slaves, with fraudulent intent to defeat the claims of his creditors, &c.
    “ On the 7th of March, 1859, upon application of complainant's solicitor, an affidavit being filed as to the truth of tbe charge of the bill relating thereto, an order for a writ of ne exeat against said John T. Haddon was granted, and the writ issued restraining him from going beyond the limits of this State until the further order of the Court. The said John Thomas Haddon was arrested under said writ on the 9th March, 1859, and entered into bond, with surety, before the Commissioner, on the 4th April, 1859. The said J. T. Haddon, to relieve himself of any liability in consequence of his aiding and assisting the said A. W. Haddon to remove his negroes from the State, acting under the advice of counsel, caused the said negroes to be brought back into the State and district, under the authority and control of one E. W. Haddon, a brother, and Pinckney Haddon, a son of said defendant. On Friday previous (1st April) the neg'roes were left in the possession of Pinckney Haddon, at Branchville, in this State, while E. "W. Haddon came on to Abbeville to consult the attorney of the said John Thomas Haddon as to the course to be pursued in reference to the said negroes. In consequence of the information received from the said E. "W. Haddon, suits in attachment were issued by Thomas Jackson, Thomson & Fair, and the " Trustees of De La Howe” against the said A. "W. Haddon. On Monday, the 4th April, 1859, the said E. "W. Haddon having been appointed a special deputy by the Sheriff to execute said attachments, left Abbe-ville in the cars and proceeded till he met the aforenamed Pinckney Haddon with the negroes on his way to Abbeville, and thereupon joined them, and upon their arriving within the limits of Abbeville District, levied the aforesaid writs of attachment upon the said slaves. Upon their arrival at Abbeville, they were taken into the custody of the Sheriff. On the same day (4th April) the complainants filed their amended bill, stating the fact of the return of the said negroes within the jurisdiction, then being in the custody of the Sheriff, and praying an injunction against his selling or removing the said slaves, and an order that he hold them subject to the order of Court. The injunction and order prayed for were granted. Subsequently to this order, other attachments were issued. On 16th May, 1859, by consent of all parties, an order for the sale of said slaves was passed by Chancellor Wardlaw, and the sale made by the Commissioner on the sale-day in June following. At June term, 1859, an order was passed, directing the Sheriff to paj over the sums in his hands to the Commissioner, reserving the rights of attaching creditors, if any, and that the same be loaned out on bond, with security. By same decretal order, the Commissioner is ordered to call in creditors, partnership and individual, to establish and.prove their demands.
    “ 2d. To report as to the validity of the assignment.
    “ 3d. To report as to the liens of attaching creditors, partnership and private.
    “ The following demands have been presented and proved :
    [Here follows a long list of demands against Haddon, Slager & Co., which it is deemed unnecessary to report.]
    “The following are the demands established against A. W. Haddon individually.
    [This list is also omitted as unnecessary to be reported.]
    “ 2d. As to the assignment by A. Slager to S. S. Baker, independent of the doubtful attestation of said assignment, I am of opinion it is not valid, for the following reasons :
    “ 1st. Because the assignment is not made for the benefit of the creditors of the firm generally, but the partnership assets are assigned in the first place to secure certain debts of A. Slager and A. Levingston and their sureties.
    “2d. Because at the time the assignment was made, the said A. Slager had not control and possession of the house and lot and stock of goods, &c., of Haddon, Slager & Go., the same having been levied on by the Sheriff of Abbeville, under certain executions against A. Slager and Slager & Levingston, and being then in his custody, and the said A. Slager being in concealment to avoid process of law.
    
      “ 3d. Because the said assignment was without the privity and. consent of the other partners of the firm of Haddon, Slager & Co., and was not made with the view of settling up the business of the firm. •
    " 3d. As to liens of attaching creditors—
    “ The following attachments were issued against the firm of Haddon, Slager & Co., before the filing of the bill, and I am of opinion their liens are valid:
    “ Wm. McGowan vs. Haddon, Slager & Go., February 8, 1859.
    
      “ S. S. Balter vs. Same, February 11, 1859.
    
      “ J. Johnson vs. Same, February 11, 1859.
    “ John Enright vs. Same, February 15, 1859.
    
      “J. J. Devlin vs. Same, February 15, 1859.
    " The demand of S. S. Baker is the note referred to as due T. Pearlstein, which is preferred under the assignment.
    " The following were issued and served subsequent to the filing of the bill and amended bill, and the order thereon, passed 4th April, 1859, and were levied on the slaves of A. W. Haddon, which had been brought back into the State in consequence of the proceedings against J. T. Haddon, to hold him responsible for their value for aiding and assisting in their removal, viz.:
    “1. Frederick Faithome vs. Haddon, Slager & Go.
    
    
      “ 2. A. Elias & Brother vs. Same, 16th April, 1859.
    “3. Josiah Burton vs. Same, 16th April, 1859.
    “4. Henry Welch vs. Same, 16th April, 1859.
    “5. L. Morris vs. Same, 18th April, 1859.
    “6. Partridge, Pinchot & Warren vs. Same, 18th April, 1859.
    "The case of 'Faithome’ was issued against A. W. Haddon,,A. Slager & Levingston, as composing the firm of Haddon, Slager & Co. on the 4th April, 1859, and service accepted by the Sheriff’ who then had the custody of the slaves above referred to, and the proceeds of the stock of goods of Haddon, Slager & Go, sold by consent of parties. On the 16th. April, 1859, the error being brought to the attention of plaintiff’s attorney, the name of “ A. Levin gston” was erased, and that of 'Elias Slager’ interlined, and the attention of the Sheriff was called to the alteration, and his acceptance requested to be considered as of that date, but no new written acceptance was indorsed on the writ.
    '‘The attachments against A. W. Haddon individually, and which were issued and levied before the filing of the bill> are as follows:
    "1. James H. Caldwell vs. A. W. Haddon, 3d February, 1859.
    “2. James T. Baskin vs. Same, 3d February, 1859.
    '' 3. Perrin & Cothran vs. Same, 3d February, 1859.
    "4. S. Me Cowan vs. Same, 5th February, 1859.
    '' The two first have been paid in full from the proceeds of property attached. There will not be sufficient to pay the two last in full, but under the opinion of the Court in the case of Renneclcer & Clover vs. Davis, I am of opinion they must rely alone upon the property attached for their security.
    “ The following attachments against A. W. Haddon were levied upon the slaves brought back into the State in consequence of 'the proceedings against J. T. Haddon, subsequent to the filing of the original bill and order of injunction, but before the order of 4th April, 1859 :
    “1. ' Trustees of De La Hoiue1 vs. A. W. Haddon, 4th April, 1859.
    "2. Thomas Jackson vs. Same, 4th April, 1859.
    “ 3. Thomson & Fair vs. Same, 4th April, 1859.
    "4. W. H. Parker vs. Same, 4th April, 1859.
    “ The attachments of Frederick Faitkome, Elias & Brother, Henry Welch, Josiah Burton, L. Morris, and Partridge, Pinchot & Warren against the firm were commenced subsequent to the filing of the bill and order of injunction granted thereupon, and subsequent to the amended bill and order thereon of 4th April, 1859, and were levied upon the slaves, the individual property of A. W. Haddon, which had been removed from the State, but brought back by J. T. Haddon, under proceedings against him to relieve himself from responsibility in consequence of his complicity in their removal from the State. Of the proceedings in the case, the attorney of the attaching creditors, all of whom, but one, reside in New York, had notice. Eor the reasons indicated above, I think the liens of the said cases are invalid.
    “As to the attachments of ‘Trustees De La Howe,’ Thomas Jackson, Thomson & Fair, and W. H. Parker, I have felt much doubt, but am of opinion that they also should be declared invalid, for the following reasons, viz.: That they were commenced subsequent to the order of injunction first granted, the attorney of the attaching creditors having notice of the proceedings, and having obtained secret information as to the expected arrival of the slaves through the agent, J. T. Haddon, of the defendant, as already referred to, and which, with his connivance, were levied upon the negroes, with whose fraudulent removal he stood charged, and which were brought back to the jurisdiction for the purpose of relieving himself from responsibility therefor.
    “ These cases differ from the attachments against the firm last referred to in this respect, that they were issued and levied before the order of injunction of 4th April, 1859, was passed, but subsequent to the bill and injunction granted thereon.
    “Your Commissioner has deemed it unnecessary to attempt to marshal the assets as further directed, as various exceptions will probably be filed against this report, and he has thought it proper to await their adjudication by the Court."
    The defendants, Smythe, O’Bourke & Co., excepted to the Commissioner’s report, in this:
    
      1. That he was in error in not holding the deed of assignment by A. Slager to S. S. Baker, for tbe use of the firm creditors, as valid.
    2. That he was in error in holding the liens of the attachments which issued against the firm of Haddon, Slager & Co. before the filing of the bill, valid.
    Samuel S. Baker, assignee of Haddon, Slager & Co., and A. Slager, excepted to the Commissioner’s report,
    Because the commissioner has decided that the deed of assignment, for the benefit of creditors, made to him, is invalid.
    Thomas Jackson, the trustees of the estate of Dr. John De La Howe, and William H. Parker, attaching creditors, excepted to the Commissioner’s report,
    Because the Commissioner has, in Ms report, declared the attachments issued by them invalid, and without lien, which it is submitted is error.
    Bazile Callahan and son, attaching creditors, excepted to the Commissioner’s report,
    Because the Commissioner has, in his report, declared tbe attachment issued by them invalid, and without lien, which it is submitted is error.
    The decree of Ms Honor is as follows:
    Dunkin, Ch. The first exceptions of Smythe, O’Bourke & Co., and of Samuel S. Baker, involve the same question. The Court concurs in the conclusions of the Commissioner, and the exception is overruled.
    The Commissioner has not made up his account, and for the reasons stated in Ms report. He has submitted for the judgment and determination of the Court a report upon certain facts, and his ruling thereon, to which the several parties have excepted.
    First. The Commissioner sustains the lien of certain attachments of creditors of Haddon, Slager & Co., lodged between 7th February, 1859, (when all the partners were beyond the limits of the State,) and 16th February, 1859, (when the bill was filed.) The assignment of Abraham Slager bears date 9th February, 1859, but the opinion of the Court is already expressed, that this instrument. does not interfere with the lien of the attachments. The exception is overruled.
    Second. Exceptions of Thomas Jackson and others. These exceptants were individual creditors of A. W. Haddon, and, on 4th April, 1859, issued attachments against certain slaves, the individual property of their debtor, then absent from the State. The Court is unable to perceive any equity on the part of partnership creditors of Haddon, Slager & Co., whose debts were not due, to restrain the proceedings or prevent the lien of these plaintiffs. They were not bound in any manner to connect themselves with the bill of the creditors, nor was it filed on their behalf. The exception is sustained.
    Third. Attachments of Faitkome and others. These were creditors of Haddon, Slager & Co., and the attachments were levied on 4th and 16th April, on slaves, the individual property of A. W. Haddon. In Gadsden vs. Oarson, 9 Rich. Eq. 252, the right of a co-partnership creditor in the individual property of a member of the firm is recognized. In the matter of Oyrus Ohipman, 14 John. 217, recognized in Peter S. Smith's case, 16 John. 102, the Supi-eme Court of New York ruled that an attachment might issue to subject the separate property of an absent co-partner to the payment of the debt of the co-partnership; but in that case the other co-partners were within the State, and amenable to the jurisdiction of the Court in the ordinary way. The Court, is unable to perceive on what principle the other contracting parties, Elias and Abraham Slager, are before the Court as defendants by an attachment of the property of A. W. Haddon. The case is not within the provisions of the Act of 1823, (6 Stat. 212,) and the Court has no authority to extend those provisions. This exception is overruled.
    The Commissioner is instructed to complete his report according to the principles herein declared.
    E. Paithome and others appealed, on the grounds:
    1. Because his Honor erred in sustaining the Commissioner’s report setting aside the attachments of P. Paithome, A. Elias & Brother, Josiah Burton, Henry Welch, L. Morris, and Partridge, Pinchot & Warren. It is respectfully submitted that the liens of these attachments are good, and ought to prevail.
    2. Because his Honor erred in sustaining the attachments of Thomas Jackson and others, who were separate creditors of A. W. Haddon.
    The complainants and others, partnership creditors, who had instituted no proceedings at law, and had no preference under tbe deed of assignment, apjeealed on the grounds:
    1. Because the presiding Chancellor erroneously held valid the attachments issued 4th April, 1859, by Thomas Jackson and others, individual creditors of A. W. Haddon.
    2. It is submitted that the said attachments were invalid, because issued after the filing of the bill, and after injunction granted by this Court to stay proceedings at law by any of the partnership creditors; and also to stay proceedings by any creditor of an individual member of said firm, of which injunction the said attaching creditors had notice.
    3. Because the presiding Chancellor is in error in supposing that the claims of complainants were not due at the time the attachments by the said defendants, Thomas Jaclcson and others, were issued, and also in supposing that said defendants were not bound to connect themselves with the bill of the creditors; that it was not filed on their behalf, when in fact they were injoined from proceeding at law, and required to come into this Court to establish their demands.
    4. Because the Chancellor has omitted to make any order or decree in regard to the real estate or possession of John A. Martin, alleged to be the property of Haddon, Slager & Co., or of Elias Slager, a member of said firm.
    The defendants, Smythe, O’Rourke & Co., appealed on all the grounds of appeal above taken by complainants, and also on the following:
    1. That the Chancellor was in error in not holding valid the deed of assignment by A. Slager to S. S. Baker, so far as made for the benefit of the creditors of the firm.
    2. It is respectfully submitted that all the attachments against the firm of Haddon, Slager & Co., whether issued before or since the filing of the bill, are invalid.
    3. That all attachments against the firm, issued since the execution of the assignment, (9th February, 1859,) are invalid.
    5. S. Baker appealed,
    Because his Honor held the deed of assignment for the benefit of creditors made to him invalid.
    
      Fair, McQowen, Noble, Burt, were heard.
    
      
       The following is a copy of the assignment:
      Whereas A. W. Haddon, one of the firm of Haddon, Slager & Co., has left the State, and carried off his property, whereby my individual and firm creditors have and are about to press upon me for payment; now, therefore, in order to pay and satisfy all my just creditors as far as my effects and estate will enable me so to do, I make this assignment of all and singular my goods, credits, effects and estate to Samuel S. Baker, as follows: I assign, transfer, set over and deliver to the said Samuel S. Baker, all my interest, claim and demand in and to the goods, wares and merchandise in the store at Martinville ; also, all my right, interest and claim and demand in and to all the store hooks, embracing all the accounts taken for goods sold, and also all notes given for goods sold, so far as I can, and have a right and an authority so to do. I also hereby assign, transfer and set over to the said Baker all the right, interest and demand of the said firm of Haddon, Slager & Co. in the said goods, wares and merchandise, and book accounts. I also set over and deliver to my said assignee my wagon and pedlar’s wagon, two horses, one cow and calf, and two clocks in the house. I also assign and set over to my said assignee all the molasses and all other articles marked to the firm of Haddon, Slager & Co., now at the depot at Abbeville, and the remnant of goods and articles belonging to the firm at New Market. I also have bargained, sold and conveyed to my said assignee, and I do hereby sell and convey to him, all my interest in and to the tract of land recently bought of John A. Martin, on which my house and store are situate, containing forty acres, more or less, situate in Abbeville District, adjoining William Smith, John Allen Martin,' et al., to have and to hold all and singular the said promises unto the said Samuel S. Baker, his heirs and assigns forever. In trust, nevertheless, for the following purposes, namely: First, to pay and satisfy three notes, one signed by II. A. Jones and A. W. Haddon lo W. H. Parker, towards payment of a demand against the late firm of Slager & Levingston, for about eight hundred dollars, and two other notes signed by Peter S. Burton, given to Jones & Jones, towards payment of judgments that were obtained against the late firm aforesaid, one being for one thousand and seventy-two 98-100 dollars, with interest from 25th January, 1858, and the other for two hundred and fifty dollars, bearing interest from same date — the date of said two last notes being 25th January, 1858, both of which are under seal; and also to pay and save harmless said Burton for all his liabilities he has incurred for Slager & Levingston.
      Second. To pay and satisfy a note of six hundred and fifty-five dollars, due 15th Januaiy, 1858, in favor of T. Pearlstein, given by Haddon, Slager & Co., on 15th November, 1858, and also to pay and satisfy a demand of three hundred dollars, in favor of Sperling & Brother, of Now York, for goods purchased by the firm of Haddon, Slager & Co.
      Third. To pay and satisfy a note of one thousand dollars, due Maurice Meyer, of Charleston, on which Pilares Martin is security; also to pay and satisfy one hundred dollars I owe Thomas Jackson,'for rent; one hundred and fifteen dollars, with the interest, due the father of General S. McGowan; also, to pay and satisfy what may be sufficient to make up one thousand dollars, with what I have paid John A. Martin, for the land on which I live, provided this will satisfy him for what I was to give him, otherwise nothing is to be paid him; and seventy dollars to Jonathan Johnson for work done on my store, with interest that may be due on it; and then I desire a debt of about three thousand eight hundred dollars due Smythe, O’Kourke & Herring, of New York, for goods purchased of them by the firm of Haddon, Slager & Co., paid, for which their notes have been given, with any interest that may be due, (|8,800.)
      • Fourthly. To pay and satisfy all the other creditors of Haddon, Slager & Co., in New York, and all other creditors of mine individually, and especially all the creditors yet unpaid of their compromised debt due the late firm of Slager & Levingston, secured by surety or otherwise, share and share alike.
      Before making the above distribution of my effects, I desire my assignee to pay H. A. Jones, Esq., a proper fee for counsel, advice, &c., and drawing up this assignment, and retain for himself seven per cent, commissions.
      I empower my said assignee to make such sales of my effects and estate as he may think proper for the best interest of my creditors. He is also authorized to employ a clerk or clerks to aid Mm. in. the sales of the goods, and to pay them irroperly for such services. It is desired that the whole matter he wound up within twelve months, if practicable.
      In witness whereof I have set my hand and seal, this 9th February, 1859.
      (Signed) A. SLAGER. [l. s.]
      “ HADDON, SLAGER & OO.
      Test — T. Peaklstein.
      S. L. Jones.
      I have heard the within read, and accept the trusts as assigned.
      (Signed) S. S. BAKER.
      ■ 9ih February, 1859.
    
   Tbe opinion of tbe Court was delivered by

Ditnkin, C. J.

This bill was filed 16th February, 1859, by tbe plaintiffs, creditors of Haddon, Slager & Co., in behalf of themselves and such other creditors of the firm as might think proper to make themselves parties.

The leading purpose of the bill is to impeach the validity of an assignment purporting to have been executed by Abraham Slager, a member of the firm, on 9th February, 1859, and transferring to the assignee all the partnership effects, which the plaintiffs charge to be “fraudulent and void.”

By an interlocutory decretal order of Chancellor Wardlaw, the Commissioner had been directed, among other things, to report upon the validity of this instrument. He accordingly presented a detailed statement of the circumstances under which the assignment, 9th February, 1859, was executed, and of the particular provisions thereof, and concludes with the recommendation that it be declared invalid. In this judgment of the Commissioner, the Chancellor upon the hearing concurred. This constitutes grounds of appeal on the part of the assignee, Samuel S. Baker, and others. It is not proposed here to recapitulate all the facts detailed by the Commissioner. It is proper, however, to say, that at the time of the assignment the tangible effects of the co-partnership purporting to be assigned were in custody of the Sheriff of Abbe-ville District, under executions against the firm; the assignor was lying out in order to avoid the service of legal process; and his co-partners were absent from the State. Under these circumstances, on the morning of the 9th February, he transferred to Baker “ all right, title and interest of the firm of Haddon, Slager & Co., in the goods, wares, and merchandise, and book accounts, &c.,” in trust, in the first place, to pay and discharge certain large debts due by the late firm of Slager & Levingston, and also to save harmless one Peter L. Burton, “from all liabilities which he had incurred for Slager & Levingstonnext to pay two creditors of the firm $655 and $300, then to pay individual debts of the assignor, then a preferred creditor of the firm, and, lastly, the creditors generally of the firm, and of himself individually, share and share alike. As the Commissioner has remarked, there was no evidence of the assent of the absent partners to this extraordinary appropriation of their funds. One of the subscribing witnesses was a preferred creditor, T. Pearlstein, whose claim was transferred to S. S. Baker, the assignee of A. Slager, and who exhibited his own diffidence in the validity of the assignment by issuing an attachment to recover this same demand two days afterwards (11th February) against the co-partnership of Iladdon, Slager & Co. The transaction wears all the badges of fraud. The goods were purchased from the complainants and others some four months previously, on a credit of six and eight months. Before the credit had expired, and when the concern was already insolvent, one of the partners, in the absence of his co partners, endeavors in a clandestine manner to make an appropriation of' all these goods remaining unsold, 'and of the debts for which they had been sold, for the purpose primarily of paying the debts of a firm to which Iladdon, Slager & Co. were strangers. Nor is the fraud sanctified because, after paying these debts of Slager & Levingston, there is a provision for paying two preferred creditors of Iladdon, Slager & Co., and, after satisfying other individual creditors of Abraham Slager, tojpay other preferred creditors of the firm. The Court cannot undertake to unravel the meshes of fraud, or to sustain an instrument concocted in fraud, although some of the provisions may be meritorious or harmless. . The plaintiffs who were Iona fide creditors of the co-partnership were well entitled to characterize the assignment as fraudulent, and to ask the aid of this Court to remove this obstruction to the satisfaction of their claims.

Then, as to the attaching creditors of A. "W. Haddon, whose writs were lodged subsequent to the order, 16th February, but prior to that of 4th. April, 1859. These were sustained by the Chancellor, and from his ruling, in this respect, an appeal is taken by several of the parties. It may be proper to elucidate what is said in the decree. On 16th February, 1859, when the bill was filed, A. W. Haddon had removed from the State and taken his property with him. At a subsequent period, and prior to the order, 4th April, slaves belonging to him were brought into the State and attached by his creditors, Thomas Jackson and others. The Chancellor has decided that on 16th February, 1859, the plaintiffs, whose demands against the firm of Haddon, Slager & Co. were not then at maturity, had no equity as against the private creditors of A. W. Haddon, and whose demands were past due, to restrain them from attaching his private property, which might subsequently be brought within the jurisdiction of the Court. If the plaintiffs’ debts were then already due, and the fund in Court, the utmost extent of the equity of the co-partnership creditor would be, after previously substantiating the insolvency of the co-partnership, to be permitted to participate with the private creditors in the distribution of the individual estate, not to restrain such creditors from establishing their legal rights, or securing the property to satisfy their legal claims. But, on the 16th February, there was no property of A. W. Haddon within the jurisdiction of the Court, and when it was afterwards brought within the limits of the State, the demands of the plaintiffs not being due, the proper and legal mode of making A. W. Haddon a party in Court, and subjecting his property to the payment of his debts, was in the course pursued by his attaching creditors. Nor does this proceeding in any manner defeat the only equity of the co-partnership creditors. The fund is in the custody of the Court, and if, after payment of legal liens, including the attachments, a. surplus should remain, the plaintiffs may entitle themselves to participate with the private creditors of A. W. Haddon. It is not very clear that the inhibition of these proceedings is within the purview of the prayer of the bill, 16th February, or of the order of injunction made by the Commissioner. But if so, the order was unadvised, and will not defeat the legal rights of the attaching creditors.

The Commissioner reported in favor of the validity of the attachment of William McGowan, as issued prior to the assignment of 9th February. The precise time at which A. Slager left the State is not fixed. But the regularity of the attachment was not disputed nor was it intended to call it in question.

The last ground of appeal on the part of the plaintiffs objects that no order was made in regard to the real estate in possession of John A. Martin. The case was heard on the report of the Commissioner, and the exceptions thereto, of which this matter forms no part, and was re-committed with instructions. The subject-matter of this exception will be properly considered on the plenary hearing of the cause.

Grounds of appeal were taken on behalf of F. Faithome and others, but were not urged in this Court.

It is ordered and decreed that the appeal be dismissed.

Wardlaw and Inglis, J. J., concurred.

Appeal dismissed.  