
    *Shackelford’s Adm’r v. Shackelford & als.
    November Term, 1879,
    Richmond.
    1. Partnership Estate — Rights of Social Creditors  — Ordinarily a partnership estate is liable to the payment of the debts of the firm in preference of the individual debts of the partners. This is the right of the partners inter se. The creditors of the partnership have no such right of priority over the creditor of the partners individually; but only by substitution to the rights of the partners inter se. The partners may release this right, and the creditors of the partnership can not complainfor it is not their right, except subject to the disposition and control of the partners themselves, to whom it belongs.
    2. Same — Sale of* Partnership Interests— Rights of Retired Member. — When one partner sells out to another the former’s interest in the partnership, the question, whether the former has a right after the sale to require the partner•ship estate to be applied to the partnership debts in his exoneration, depends upon the true meaning of the contract of sale in this respect. Under the contract in this case, the vendor has a right to have all the assets of the partnership so applied. '
    3. Same — Same—Same.—S, the partner who purchased the assets, and bound himself to pay the debts of the partnership, dies, leaving debts unpaid, and leaving assets of the former partnership, which go into the hands of his administrator c. t. a.; and this administrator files his bill against the widow and children to have a construction of the will, and to administer the estate under the control of the court. The outgoing partner may file his petition in the cause, to have the assets of the partnership which have gone into the hands of said administrator, applied to the payment of the partnership debts; and for this purpose to have an account of said assets.
    4. Same — Administrator of Deceased Partner — Insufficient Security — -Partnership Assets — Appointment of Receiver. — The security of the said administrator not being sufficient, the court may appoint a receiver to receive from said administrator *the partnership assets in his hands, and to proceed to collect the same.
    5. Removal of Receiver. — If the security of the receiver is not sufficient, the court may make a rule upon him to show cause why he should not give other sureties, and upon liis failure to show cause, may remove him. And it must very plainly appear that the court below erred before the appellate court will reverse its action.
    6. Same. — An account of the assets collected by the receiver having been ordered ana taken, showing the amount collected, after deducting an amount claimed by the receiver for fees as counsel in collecting the assets, the court, without deciding on his right to a credit for the fees, directs him to pay the amount after deducting the fees into bank. Another account is taken showing a further amount collected by him. And it appearing that he had not complied with the previous decree, the court may set aside that decree, remove him from his office of receiver, and appoint another in his place, and direct him to pay to the second receiver the amount he has collected, and to deliver to the second receiver all partnership assets in his hands. And may further direct that if he does not so pay over the funds in his hands, counsel named shall proceed to bring a suit against him and his sureties on his bond as receiver.
    7. Evidence — Partnership Rooks. — Tne books of a partnership are competent evidence to show what are debts of the partnership as against the partner who, upon the dissolution of the partnership, has purchased the assets of the partnership, and has undertaken to pay its debts.
    S. Rights of Vendor of Partnership Interest. — The administrator of the purchasing partner is liable to the selling partner for all moneys of the partnership collected by his attorney at law, ard for all payments made by such attorney by his direction or approval.
    Statement of the Case.
    This is an appeal from sundry decrees of the circuit court of Fauquier county, made in two suits pending in said court, in one of which B. H. Shackelford’s administrator was plaintiff and R. B. Shackelford and al. were defendants; and in the other, R. B. Shackelford, guardian, &c., was plaintiff, and B. H. Shackelford’s administrator and al. were defendants.
    *The substance of the pleadings and proceedings in the said suits, so far as they appear in the transcript of the record before this court, is as follows:
    In August, 1871, the bill was filed in the first named of the said two suits by the plaintiff therein, I. Catlett Gibson, administrator d. b.n.w. w. a. of B. H. Shackelford, deceased, in which it is stated, in substance, among other things, that said B. H. Shackelford die,d on the 18th of May, 1870, leaving a widow, Rebecca B. Shackelford, and six infant children surviving him — the names of the children being J. Green, Howard (over fourteen years of 'age), George S., Lucy, Annie and Muscoe G. Shackelford (the last four under fourteen years of age); that by the will of said B. H. Shackelford, which was duly admitted to probate in the county court of said county on the 33d of May, 1870, and of which an office copy, marked A, is filed with the bill, the said Rebecca B. was appointed sole executrix, and qualified as such at the May term of said court in 1870; that said Rebecca B. renounced her position as executrix at the February term of said court in 1871, and said plaintiff was appointed by said court administrator d. b. n. w. w. a of said B. H. Shackelford, deceased, and qualifiled as such on the 37th day of February, 1871; that the plaintiff submits the construction of said will and all questions which may arise under it to the court; that at the time of the testator’s death he was seized and possessed of a considerable estate, real and personal, bu.t the same is greatly encumbered with debt — the real estate, though valuable, if sold in the then condition of the land market, would entail great loss on those interested in it. And the personal estate consisted mainly of choses in action, which required time and good management for collection, but - which the plaintiff considered would be amply sufficient to discharge the debts of the estate in five years; and that for the-protection of said plaintiff and the best interests of said estate, he desired that the assets and liabilities of said ^estate should be ascertained and reported to the court, and the said estate administered under its decree. lie therefore prayed that the said widow and children should be made defendants to the said bill; that the said will should be construed ; that the creditors of said estate should be summoned, and the debts due to them, with their respective amounts and priorities, and the assets of said estate, should be ascertained and reported; that the said estate should be administered under the decrees of the court, and that such other and further relief might be granted as justice and equity might require.
    The will, of which a copy is filed with the bill, is dated on the 18th day of February, 1860, and is very brief. It is in these words:
    “The last will and testament of Benjamin Howard Shackelford, this 18th day of February, 1860. Tt is my will and desire that all the property, rights and interests of which I may die seized and possessed, shall pass to and belong to my dearly beloved wife Rebecca, for her sole and separate use, and for the maintenance, support and education of our children, for and during her lifetime, and after her death, the said property, rights and interests, and the natural increase thereof not consumed, shall pass to and belong to our dear children, equally to be divided between them. As witness my hand this day and year above written.
    “B. H. Shackelford.”
    “I appoint, my wife executrix of this my last will, and direct that she shall not give security. Witness my hand on the day and year aforesaid.
    “B. H. Shackelford.”
    She was permitted to qualify on giving a bond as executrix in the penalty of $20,000, without security. *Exhibit “B,” filled with the said bill, is an office copy of a deed of marriage settlement made the 14th day of June, 1852, “between Benjamin Howard Shackelford, of the first part, and Rebecca Beverly Green, of the second part.” It is recited in the deed, “that whereas a contract of marriage has been entered into by said parties, which it is intended shortly to solemnize, and it being the desire of the said Benjamin Howard to convey certain property, rights and interests to the said Rebecca Beverly for her sole and separate use and behoof”; and then the deed “witnesseth that the said Benjamin Howard, for and in consideration of said contract of marriage, and of the further consideration of one dollar,” &c., “has granted,” &c., “and by these presents doth grant.” &c., “unto the said Rebecca Beverly Green the house and lot in the town of Warrenton, now occupied by the said Benjamin Howard as a law office,” &c. “and also the following negro property, &c.; also a certain promissory note “executed to the said Benj. Howard for the sum of $2,-000, bearing date on the 1st day of June, 1852, and payable on demand, to have and to hold the said property and the said promissory note to the sole and separate use and behoof of her, the said Rebecca.” &c.; “and it is agreed that the said Rebecca Beverly shall receive, hold and enjoy whatever property or interests she now has, or may hereafter have, by gift, devise, descent, purchase or inheritance, to her own sole and separate use, notwithstanding the coverture,” &c. “ft is further expressly agreed, that in case the said Benj. Howard shall depart this life before the said Rebecca Beverly, leaving issue of this marriage, the property, rights and interests hereinbefore mentioned shall, after the death of the said Rebecca Beverly, descend and pass to such issue in parcenary. In testimony whereof,” &c.
    On the 19th of September, 1871, the cause, in which Ihe bill was taken for confessed against the adult defendant, came on to be heard on said bill and exhibits and answer *of the infant defendants, when the court decreed that one of its commissioners should take an account of the estate, real and personal, of which the said B. H. Sha’ckelford died seized or possessed, together with the annual and fee simple value of said real estate, and the character, condition and value of said personal estate, &c.; also an account of the debts outstanding against the estate of said B. H. Shackelford, with their amounts and respective priorities; and that J. C. Gibson, administrator d. b. n. w. w. a. of said B. H. Shackelford, should settle his account before said commissioner, &c.
    On the 19th of April, 1872, Edward M. Spilman, by leave of the court, filed his petition and an exhibit in the cause, and J. C. Gibson, administrator d. b. n. w. w. a.; as aforesaid, filed his answer thereto; and the cause came on again to be heard on the papers formerly read and said petition and answer, when the court decreed that one of its commissioners should take an account of the liabilities and of the assets, real and personal. of the late law .firm of Shackelford & Spilman, on the 21st day of December, 1869, the date of the contract between B. II, Shackelford and E. M Spilman, filed with the petition of said Spilman; and should ascertain and report to the court what amount of said assets have been coileded since said date, and by whom, and what amount of the debts of said firm then outstanding have been paid, and by whom.
    Tn the said petition of said Spilman, after referrum to what had been done in the suit, the petitioner averred that for a number of veaijs he was the law partner of said Shackelford, and a short time prior to his death — ■ to wit: on the 21st of December, 1869 — he and the said Shackelford entered into a contract, by which the petitioner surrendered to said Shackelford all his interests in the partnership assets of the law firm of Shackelford ik Spilman, upon certain terms, the chief of which was the assumption by said Shackelford of all the debts due bv the «aid firm, the said ^Shackelford binding himself to apply the said assets, as fast as collected, to the payment of said debts. The petitioner further stated that sinee the death of said Shackelford judgments and decrees had been rendered against him as surviving partner of said firm, and the collection thereof is sought to be enforced against him, whilst the only means of payment of the same have passed, by said contract, beyond his control into the hands of said Shackelford’s legal representatives. And he averred that the assets of Shackelford & Spilman, which consist of both real and personal estate, are amply sufficient to pay all the debts of said firm, and should, in pursuance of said contract, be first applied to that purpose. And he therefore prayed that J. C. Gibson, administrator d. b. n. w. w. a. of B. H. Shackelford, deceased, might be required to answer the said petition; that an order might be made in said suit directing one of the commissioners of the court to take an account of all the assets of said firm, both real and personal, that were surrendered as aforesaid; that said administrator might be required to apply the same first to the payment of the debts ofe said firm; that an account might be taken showing what-portion of said assets had been collected, and by whom, and what disposition had been made of the same; and that an account might be also taken of all debts due by said firm at the date of said contract.
    Exhibit “A,” filed with said petition, is as follows:
    “Memorandum of an agreement made and entered into this 21st day of December, 1869, between B. H. Shackelford and Edward M. Spilman — witnesseth: That the said Shackelford agrees to take the entire assets of the late law firm of Shackelford & Spilman, except the real estate belonging to said firm in the state of Arkansas, and pay off and -discharge all the debts of said firm of every nature and description, upon .the following terms, stipulations and agreements: The said Shackelford agrees to wind up all *the business of said firm, applying ■the assets, as fast as realized, to the payment of its debts, all of which he assumes to pay, hereby discharging said Spilman from all liability for the same; the surplus remaining after the payment of said debts to belong exclusively to the said Shackelford.
    “In consideration of which, the said Shackelford agrees and binds himself to purchase and have conveyed to John A. Spilman, as trustee for Eliza C. Spilman, the wife of the said Edward M. Spilman, the lot of land immediately in the rear of his premises, in the town of Warrenton, purchased by H. A. White of Eisher & Ingram, containing - acres.
    “It is further agreed and understood that in the settlement of the business of said firm, neither partner is to be treated as debtor to the same, each being deemed to have received equal amounts, and not to account for what has been received heretofore.
    “And it is further agreed that said Shackelford is to surrender to the said Spilman his bond for the hire of negro man, Ben, and Mrs. Lucretia Day’s bond for the hire of girl Patsey.
    “The said Shackelford will keep an ac'count of all receipts and disbursements by
    him in the books of the late firm, so that the said Spilman may at any time know the condition of said business, should its settlement be by any accident devolved on him; and the said Shackelford has the right to call on said Spilman for assistance and explanation in regard to any of the business of said firm that he may find himself unable to settle.
    “Witness the following signatures and seals.
    “Edw’d M. Spilman,
    “B. H. Shackelford, [Seal.]”
    The said J. C. Gibson, administrator as aforesaid, answered the said petition at or about the time it was filed, simply saying in his answer: “Respondent is willing to *do what is legal and equitable in the premises, and submits his interests and duties to the court.”
    On the 9th of April, 1873, the defendant, Rebecca B. Shackelford, filed her answer to the said_ bill, stating, in substance, among other things, that although she qualified as executrix as aforesaid, she trusted the entire settlement of said estate to her attorney at law, H. R. Gardner, and only knows of his acts and doings from the account which he rendered her, and which she has laid before the commissioner appointed to take the accounts herein ordered; that before her intermarriage with her said husband, they entered into a marriage settlement, whereby he settled upon her and the issue of the marriage two lots and houses in the town of Warrenton, and several slaves, and whereby it was provided that all property to which she might become entitled by devise or descent should be subject to the provisions and conditions of said marriage settlement. She charged that under the will of her father, Jones Green, she became entitled to a number of slaves and a large and valuable personalty and realty; that her husband collected moneys due her as a portion of this estate, and used the same for his own purposes, sold a number of slaves and other personalty devised as aforesaid, and converted the proceeds of such sales to his own use; and that her husband collected certain moneys devised to her from the estate of her grandfather, John Scott, under his will, and converted the same to his own use. She claims that her husband, by collecting the aforesaid funds embraced in their marriage settlement, became her trustee as to such, and that his estate is liable to her trustee and children for such debts as fiduciary debts of the first character, and prayed that an account might be taken of the acts and doings of her said husband in regard to the said funds. She expressed her willingness that the court should construe the said will, but thought it too plain to require the aid of a *court of equity to construe it, and insisted that it vests all the estate of her husband in her in fee simple. .
    On the 22d of April, 1873, the cause, came on to be again heard on the papers formerly read, the report of Commissioner Shepperd, returned 20th September. 1872, to which there were sundry exceptions, and the answer of R. B. Shackelford; when the court, without passing on the said exceptions, recommitted the said report to the same commissioner to enquire further into the matters of said report, and also to enquire whether B. H. Shackelford, in his lifetime, collected any money belonging to R. B. Shackelford as her separate estate, and the amount thereof; whether said Shackelford sold any, and if any, what property belonging to her as her separate estate, and if so, what became of the money so received by said Shackelford — whether it was invested, and if so, in what property and in whose name. And the court further decreed that J. C. Gibson, Eppa Hunton and H. R. Garden, who were appointed special commissioners for the purpose, should sell the real estate of which said B. H. Shackelford died seized, consisting of many tracts of land described in the decree, containing together 943 acres, oil the terms therein mentioned. Said commissioners were required to give bond, with good security, before receiving any money as such, conditioned for the faithful performance of their duty as such, and to report their proceedings to the court.
    On the 15th of April, 1874, Edward M. Spilman, by leave of the court, filed his supplemental petition in the cause, and it was ordered that R. B. Shackelford, in her own right and as administratrix of her husband and guardian of her children aforesaid, and the said children and the said Gibson,^ administrator as aforesaid, and the said Eppa Iiunton, H. R. Garden and J. C. Gibson, commissioners in Gibson v. Shackelford as aforesaid, and Micajah Woods, H. R. Garden and J. C. Gibson, commissioners in Shackelford, guardian, v. Shackelford, be summoned to *appear on the 22d of April, 1874, and answer said petition, and show cause wliy the prayers thereof and restraining orders therein specified should not be granted.
    In the said supplemental petition of said E. M. Spilman, after setting out the substance of the original petition and the proceedings had under it, the said petitioner stated in substance, among other things, as follows: that 'the commissioner had not completed the account he had been ordered to take. Since the filing of said petition, facts have come to the knowledge of said petitioner, which he is advised it is important to present to the court, in order to protect him and the creditors of Shackelford & Spilman in their just and legal rights. He is advised that by the terms of said contract, it was contemplated, that as surviving partner, in case of the death of the said Shackelford, the duty of settling the affairs of said _ firm might devolve on him, and that even if no such provision had been inserted therein, he is advised that no arrangement made between him and his co-partner would bar the rights of the creditors of said firm to be paid out of the social assets, nor relieve said petitioner from any individual liability of duty to such social creditors. He therefore asks_ leave to file this supplemental petition, in which he avers that the administrator aforesaid, of said Shackelford, denies the right of the creditors of Shackelford & Spilman to any priority in payment of their debts over the individual creditors of said Shackelford out of these said assets and the property of said firm, and refuses to apply them to the payment of the partnership debts, and claims that by said contract they have passed to said Shackelford as his individual property, exclusive of all rights of the social creditors and of any rights of this petitioner as surviving partner to have them thus applied. He further avers that Mrs. R. R. Shackelford has filed a claim against her said husband’s estate, which claim the administrator aforesaid maintains to be the first lieu on said estate, "“including the assets of said Shackelford & Spilman, which, if allowed, will absorb the greater part of all thereof. In pursuance of this idea bills have been filed in the circuit courts of Albemarle and Eauquier counties to sell all the real estate belonging to said Shackelford at the time of his death, including certain real estate owned by the late firm of Shackelford & Spilman, thus ignoring the partnership and treating the social property as the individual property of said Shackelford. In the suit in Albemarle, styled Shackelford, guardian, v. Shackelford (which has been removed to the circuit court of Fauquier), a lot belonging to B. H. Shackelford individually has been sold, and realty owned by Shackelford & Spilman has been decreed to be sold in the suit in Eauquier county, as the individual property of said Shackelford. The proceeds of the sale of the lot in Charlottesville have been treated as a fund to be invested for the benefit of Mrs. Shackelford and her children, and have been decreed to be paid to said Gibson, as receiver in said suit of Shackelford, guardian, v. Shackelford. In the original bill filed in the circuit court of Albemarle county as aforesaid, it is averred that the personalty of said B. H. Shackelford, deceased, is totally insufficient to pay his debts, which averment is admitted to be true in the answer of J. C. Gibson, administrator as aforesaid. In the said supplemental petition the petitioner further avers that by the accounts settled before Commissioner Shepperd, by R. B. Shackelford, executrix of R. H. Shackelford, it appears that she is credited to her testator’s estate in a balance of $3,199.31, with interest from 27th February, 1872, and by the account^ of J. C. Gibson, administrator as aforesaid, settled before said commissioner, he is charged with $897.67, as balance due the estate by him, after turning over to the widow and children of said B. FT. Shackelford about $2,000 as advancements to them. In addition to this, the said administrator has collected of the assets of said Shackelford Spilman about $2,500, of which petitioner has knowledge and of which no account has as yet been taken as far as he has seen, though he does not doubt that said administrator intends to credit the same in his acounts. Petitioner avers that all these sums were mainly derived from the assets of Shackelford & Spilman, amounting in round numbers to $8,000, which have been collected by the representatives of the estate of B. H. Shackelford and not applied, as the law requires, to the payment of the partnership debts. He further avers that the security in the official bond of the said Gibson, administrator as aforesaid, is wholly insufficient, the sole security being Mrs. R. B. Shackelford, who has only a life estate in the property settled on her by her husband, as petitioner is advised; and that she qualified as his executrix without giving security as such. Under these circumstances, petitioner is advised that he has a right in protection of his own interest and those of the creditors of said firm, to have a receiver appointed to take charge of the uncollected assets of said firm, and collect and apply them to the discharge of its debts, some of the creditors of which are suing said petitioner and the sureties of himself and his late partner to enforce against them the liabilities of said firm. The petitioner therefore prayed, that the persons named as defendants in the said decree of the 15th April, 1874, be made defendants accordingly; that certain specific relief might be given by injunction, the appointment of a receiver, &c., as set out in said petition, and that he might have general relief.
    On the 25th of April, 1874, the said J. C. Gibson, administrator as aforesaid, filed his-answer to the said supplemental petition.
    On the same day — to wit: the 25th of April, 1874 — the cause came on to be again heard on the papers formerly read, the original and supplemental petitions of E. M. Spilman and exhibits filed therewith, and upon the answer *of said J. C. Gibson, administrator as aforesaid, and exhibits filed therewith (though none are copied in the record in this case), when the court, being of opinion that the social assets of the late firm of Shackelford & Spilman should be first applied to the discharge of the debts of said firm, and that the petitioner hath a right to have them so applied, and that the same are not protected by the surety of said J. C. Gibson, administrator as aforesaid, in his bond as such adminstrator, the said surety having only a life estate, as it appears to the court, in any property owned and held by her. and that the petitioner hath a right to have said assets secured for the purpose of discharging the debts and liabilities of said firm, decreed that said J. C. Gibson be appointed a receiver of the social assets and property of said firm, and that said Gibson, administrator as aforesaid, forthwith deliver to said receiver all the choses in action, evidences of debt, moneys in his hands, property and assets, with papers or memoranda belonging to said firm and pertaining to their business, whether kept during the existence of said firm or by B. H. Shackelford since its dissolution, or by his personal representatives since his death. But before receiving the same the said receiver was required to give bond, with approved security, in the penalty of $20,000, conditioned for the faithful discharge of his duties as such receiver, &c. And the court further ordered that a commissioner of the court should convene, by publication in a newspaper printed in the town of Warrenton,
    all the creditors of or claimants against the firm of Shackelford & Spilman; and should ascertain the amounts due by said firm, to whom due, and the priorities thereof, 'and the receiver to make no payments of any funds that may be collected by him under said decree except by the order of the court. And the said commissioner and receiver was directed to report their actings and doings under the said decree to the court.
    On the 1st of January, 1875, the commissioner filed his *report under decrees of 19th of April, 1872. find 22d April, 1873.
    On the 2d of January, 1875, on the motion of John A. Seaton, administrator d. b. n. w. w. a. of John Fox,- deceased, he was made a defendant to the suit. And the cause came on again to be heard on the papers formerly read and the report of Commissioner Shepperd, filed January 1st, 1875, and the exceptions thereto, filed by said administrator; when the court decreed that said report be recommitted to said commissioner, with instructions to enquire further and report more fully the liens on said Shackelford’s estate, and especially the judgments in favor of the administrator, &c., of John Fox, deceased.
    The said exceptions are copied in the record.
    On the 19th of April, 1875, the said commissioner filed his report under the decree of the 2d of January, 1875.
    On the 22d of April, 1875. the said commissioner filed his report of that date, containing a statement made at the request of J. C. Gibson, administrator as aforesaid, of moneys advanced by him to Mrs. R. B. Shackelford and two of her children, in addition to the amount theretofore reported.
    On the 24th of April, 1875, the cause came on to be heard on the papers formerly read, the reports of Commissioner Shepperd, to which there are divers exceptions, and the affidavit of said Gibson, filed that day, when the court decreed that the said reports and the exceptions thereto should be recommitted to said commissioner, to reconsider the same with the said exceptions, and make report thereon, and upon any other matters theretofore committed to him by any former decree in the cause.
    On the 25th of April. 1875, a copy of a decree of said court in the cause pending therein, in which Rebecca B. Shackelford, in her own right and as guardian of the infant children of B. H. Shackelford, deceased, was plaintiff, and B. H. Shackelford’s administrator and al. were *defendants, was filed in the said cause of “Shackelford’s administrator v. Shackelford and als.,” showing that the said cause of Shackelford v. Shackelfords’ administrator came on to be again heard on the papers formerly read and the report of Commissioner Shepperd, filed April 12th, 1875, to which there was no exception: on consideration whereof the court decreed that J. C. Gibson, receiver, out of the corpus of the fund in his hands, pay to said R. B. Shackelford, in semi-annual instalments, from year to year, for the support, &c., of her minor children, a sum of money which, together with the income of her separate estate, will amount to $1,200.
    On the 24th of August, 1875, the commissioner filed a report in obedience to the said decree of the 24th of April, 1875 — which report is copied in the record in this cause —showing that the said commissioner took up and considered one by one the divers exceptions taken to the last report filed in tne cause, which were 26 in number, and the exceptions filed 23d April, 1875, which were 7 in number. After stating his views upon them, he concludes thus: “From the foregoing it will appear that almost every exception was badly taken, and but few referred to the account of said exceptant as administrator or receiver, and that, let them be decided as they would, could not possibly affect said account of said exceptant. Your commissioner will state specially that the attorney, H. R. Garden, for said administrator and said estate, furnished your commissioner a regular statement of all moneys received by him and all payments made, with vouchers sustaining the same. From this statement — a copy of which is filed in the cause — it appears that the said attorney paid over to said administrator all sums left in his hands after paying costs of suit, debts, &c.; and the attorney holds his (the administrator’s) receipts for the same, and they amount to a considerable sum,” &c. The commissioner then states sundry lists and accounts, showing, among other things. *the debts against the firm of Shackelford & Spilman, the assets belonging to said firm, the balance due said firm by said J. C. Gibson, the receiver, and the balance so due by R. B. Shackelford, the executrix.
    On the 15th of September, 1875, the said commissioner made a special report at the instance of J. C. Gibosn, showing the estate of said Gibson’s account as receiver oí the firm of Shackelford & Spilman, after crediting him with a number of fees charged by said receiver for professional services rendered by him in the various suits mentioimd in connection with each charge, from which it appeared that the receiver, after being credited with said fees, owes a balance of $2,768.51 — all principal.
    On the 23d of September, 1875, the plaintiff. J. C. Gibson, administrator as aforesaid, and the defendant, R. B. Shackelford, presented their petitions to rehear the decree of the 23th April, 1874.
    To the said report of August 24th, 1875, sundry other exceptions were filed by D. H. & A. D. Payne and J. C. Gibson, administrator of B. 11. Shackelford.
    On the 23d of September, 1875, J. C.. Gibson, administrator as aforesaid, filed fifteen exceptions to said report of August 24th, 1875.
    On the 22d of September, 1875, T. N. Eatham filed two exceptions to said report.
    On the 29th of December, 1875, an affidavit was made and filed in the case by E. M. Spilman that the security in the bond of J. C. Gibson, as receiver aforesaid, was insufficient, on grounds specially assigned in said affidavit.
    On the 31st of December, 1875, the said two causes of B. H. Shackelford’s adm’r v. R. B. Shackelford and al. and R. B, Shackelford, guardian, &c., v. B. H. Shackelford's adm’r and al. came on to be heard on the papers formerly read and the affidavit of Edward M. Spilman, filed on the 29th of December, 1875, as aforesaid: on consideration *whereof the court decreed that said Gibson, receiver as aforesaid, pay to the First National Bank of Alexandria, to the credit of these causes, the sum of $2,768.51, being the amount appearing in his hands by the supplemental report of Commissioner Shepperd, filed on 16th September, 1375, after deducting the amount claimed by said receiver for his fees. See., reserving for future consideration the amount so. claimed, and that said receiver do also pay into such bank any moneys received by him as such receiver since the period embraced in said report, and also any moneys he may hereafter collect as such receiver, and file among the papers in this cause the certificate of said bank of such deposits, and settle before said commissioner a further account as such receiver; and that said commissioner ascertain and report whether the bond of said receiver, filed _in said first named cause, is a good and sufficient bond to protect the interests of the parties who may be entitled to the funds, &c.; and that said Gibson be summoned to appear on the second day of the next term of the said court, and show cause why he should not be required to execute a new bond, with sufficient sureties, as such receiver.
    The said Gibson, as late administrator d. b. n. c. t. a. of B. Id. Shackelford, deceased, on the 24th day of May, 1877, applied to a judge of this court for an appeal from and supersedeas to the decrees rendered in the said causes, or one of them, on the 25th day of April, 1874. and the 23d of September, and 24th and 31st of December, 1875, which appeal and supersedeas were accordingly allowed and awarded on the 26th of May, 1877,
    On the 17th and 22d days of April, 3 876, two other decrees were rendered by the said circuit court of Fauquier county in the said two causes.
    Tn the first of said two other decrees it is stated that the said two causes came on to be further heard upon the papers formerly read, and the report of Commissioner Shepperd, *filed on the 1st day of April, 1876, and the affidavit of J. C. Gibson, filed 10th April, 1876, and the statement in writing of said Commissioner Shepperd, 10th April, 1876, and the original notice issued by said commissioner to J. C. Gibson, dated the 7th March, 1876, served on the 8th March, 1876, and the exceptions, seven in number, of said J. C. Gibson, filed 10th April, 1876, to said commissioner's report, and the exception of Thomas Green to said report, and the exception of Rebecca B. Shackelford thereto, and the exception of-Money thereto, the three last filed 10th April, 1876, and upon the rule agiinst said J. C. Gibson, receiver as aforesaid, to show cause why he should not be required to execute a new bond as such receiver, which rule was duly served, and was argued by counsel: on consideration whereof, and for reasons set forth in the written opinion of the court filed among the papers in said two causes (but not copied in the record before this court), the said court decreed in substance, that the exceptions of said Gibson, numbered 1, 2, 3, 4, 6 and 7, be overruled, and that the exceptions of-Money be overruled, and that said report be confirmed as to the several matters' referred to in said exceptions thus overruled; and that said exceptions of said Gibson numbered 5, and the exception of Thomas Green, and the exception of Rebecca B. Shackelford, be recommitted to said commissioner for further enquiry; and the court further decreed that said J. C. Gibson be required, on or before the 22d of April, 1876, that being the last day of the then existing term of said court, to execute a new bond as such receiver, with sufficient surety, in the penalty of $20,000, and with like conditions to those of his former bond; and the court further decreed that said Gibson, receiver in the last of said two causes of the funds arising from the sale of the “mansion house,” in the town of Warrenton therein referred to, do, out of said funds, pay to Rebecca B. Shackelford, guardian of her infant children, the sum of $500 annually, until *the further order of the court, in semi-annual instalments of $250, the first to be paid on the 1st of May, 1876, to be credited when paid on the reversionary interests of said children in said fund, they requiring the same for their maintenance and education.-
    In the other of said two decrees the court, in substance, decreed that so much of the report of said commissioner, filed 1st April, 1876, in the first named cause, as ascertains the total amount due by J. C. Gibson as receiver aforesaid to be $5,384.84 on the 26th March, 1876, with interest on $4,685.82, part thereof, from that day, be confirmed. And the court having, by decree theretofore entered, ordered said Gibson, receiver as aforesaid, to pay into bank to the credit of said causes the sum of $2,768.75, and other moneys in said decree specified, and to file among the papers in said causes certificates of such deposits, with which order he hath failed to comply, and as the said sum of $2,768.75 is part of said amount of $5,384.84, the order directing said deposits was thereby rescinded, and it was decreed that said Gibson, receiver, do pay unto A. D. Payne (appointed receiver by a subsequent provision of said decree), the said sum of $5,384.84, with interest as aforesaid. And said Gibson, having failed to execute a new bond as receiver, as required as aforesaid, it was thereby decreed that he be removed as receiver, and his powers as such be annulled. And it was thereby further decreed that said A. D. Payne be appointed receiver instead of said Gibson, and that said Gibson deliver to said Payne the assets, papers and books relating to the business of such receivership. But said Payne, before acting as such receiver, was required to execute a bond, with approved security, as mentioned in said decree. And he •was directed to file among the papers of said causes a statement of the assets he might receive under said decree, and to proceed to collect with diligence all debts due to said firm, and was authorized to employ counsel to aid him in so *doing if deemed proper by him, and was required to account as such receiver before a commissioner of the court in said causes. And unless said Gibson, receiver, should, within sixty days from the rising of the court, pay to said Payne ás aforesaid, then the court appointed John M. Forbes a commissioner, who was ordered to withdraw the bond executed by said Gibson as receiver, and proceed to enforce the samé against said receiver and his sureties, and make report to the court. But said Forbes, before receiving any money under said decree, was required to execute bond, with good security as therein mentioned, conditioned for the faithful performance of his duties under said decree. There were other provisions of said decree which seem not material to be here stated.
    The said J. C. Gibson, administrator as aforesaid, after obtaining an appeal and supersedeas, as aforesaid, from prior decrees rendered in the said two causes, applied for an appeal and supersedeas from and to the said two decrees of the 17th and 22d days of April, 1876, which said last mentioned appeal and supersedeas were accordingly allowed and awarded by a judge of this court on the 5th day of March, 1878; which two cases were argued together as one case before this court.
    
      
       Partnership Estate — Rights of Social Creditors. — The court said in Pettyjohn’s Ex’ors v. Woodruff’s Ex’or et al., 86 Va. 479: “Whatever may have been the rule in other states, independently of statute law, the law of Virginia is, that the legal effect of the partnership is, to set apart or dedicate the .social assets as a fund for the payment of the social debts, for the mutual protection of the partners inter se (Subject to the rights of the partners, while all are alive, to vary that dedication, as in Shackelford v. Shackelford, 32 Gratt. 481), and for any unpaid balance due them the social creditors come in as general ci editors, pari passu, with the separate creditors of the same class upon the separate estate of the deceased partner.” See also Frank Wolfe & Co. v. Pringle, 96 Va. 459. And where the surviving partner has not parted with his equity to have the firm assets applied to the firm debts before suit to have such assets so applied, he can not after such suit release such equity without the consent of the social creditors. Robinson v. Allen, 85 Va. 729.
      Purchase by One Partner. — See Darby v. Gilligan, 33 W. Va. 249, citing the principal case.
    
   MONCURE, P.,

delivered the opinion of the court. After stating the case he proceeded:

The first decree complained of in the first of the said two appeals is the decree of the 25th day of^ April, 1874, in which “the court, being of opinion that the social assets of the late firm of Shackelford & Spilman should be first-applied to the discharge and satisfaction of the debts of said firm, and that the petitioner hath a right to have them so apolied. and that the same are not protected by the surety of said J. C. Gibson, administrator d. b. n. w. w. a. of B. H. Shackelford, deceased, in his bond as such administrator; *the said surety having only a life estate, as it appears to the court, in any property owned and held by her, and that.the petitioner hath a right to have said assets secured for the purpose of discharging the debts and liabilities of said firm”- — • decreed that said J. C. Gibson be appointed a receiver of the social assets and property of- said firm of Shackelford & Spilman; and that said Gibson, administrator as aforesaid, forthwith deliver to said receiver “all the choses in action, evidences of debt, moneys in his hands, property and assets, written papers or memoranda belonging to said firm of Shackelford & Spilman, and all the account books and other books,” &c., “kept by or belonging to said firm and pertaining to their business, whether kept during the existence^ of said firm, or by B. H. Shackelford since its dissolution, or by his personal representatives since his death.” But said receiver, before receiving any thing as such, was required by said decree to execute bond, with surety as therein mentioned, for the faithful discharge of his duties as such; and he was directed to file among the papers in the cause a statement of all the assets he might receive under said decree, and to proceed to make collections, &c., and to present an account thereof to a commissioner of the court. And the court further ordered that a commissioner should take an account, as therein directed, of the debts due by said firm and the priorities thereof; that reports should be made to the court by said receiver and commissioner respectively, and that no payments of any funds, &c., be made by said receiver, except under the order of the court.

The main question presented by or raised upon the said decree is, whether that part of the estate oí B. H. Shackelford, deceased, which was a part of the partnership estate of the late firm of Shackelford & Spilman, is first, liable to the payment of the debts of the said firm before it is liable to the payment of the individual debts of the said B. H. Shackelford.

*We know that, ordinarily, a partnership. estate is liable to the payment of the debts of the firm in preference of the individual debts of the partners. This is -the right of the partner inter se. The creditors of the partnership have no such right of priority over the creditors of the partners individually, but only by substitution to the rights of the partners inter se. The partners may release this right, and the creditors of the partnership cannot complain, for it is not their right, except subject to the disposition and control of the partners themselves, to whom it belongs.

When one partner sells to another the former's interest in the partnership estate, the question whether the former has a right, after the sale, to require the partnership estate to be applied to the payment of the partnership debts in his exoneration, depends upon the true intent and meaning of the contract of sale in that respect. It is competent, of course, for a vendor in such a case to release the partnership estate from such a continuing liability. But whether he did so in fact or not is a question which depends upon the intention of the parties in the contract of sale in the particular case.

Whether, in the case of such a sale, where there is a total absence of anything in the contract of sale to indicate the intention of the parties on the subject, the presumption of law is in favor of or against such continuing liability, is a question which need not be decided in this case, if it_ appear by the terms of the contract of sale in the case that such a continuing liability was actually intended by the parties. If so, it will certainly continue to exist.

Let us now therefore enquire: whether, by the terms of the contract of sale in this case, such a continuing liability was actually intended by the parties?

The said contract of sale by Spilman to Shackelford was by deed executed by the parties on the 31st day of December, *1869, only a few months before the death of the vendee, Shackelford; the vendor, Spilman, being his survivor, and then still living. The only clauses of the contract which seem to be material to the question we are now considering are the following:

“That the said Shackelford agrees to take the entire assets of the late law firm of Shackelford & Spilman, except the real estate belonging to said firm in the state of Arkansas, and pay off and discharge all the debts of said firm of every nature and description, upon the following terms, stipulations and agreements: The said Shackelford agrees to to wind up all the business of said firm, applying the assets, as fast as realized, to the payment of its debts, all of which he assumes to pay, hereby discharging said Spilman from all liability for the same; the surplus remaining, after the payment of said debts, to belong exclusively to the said Shackelford.”
“The said Shackelford will keep an account of all receipts and disbursements by him on the books of the late firm; so that the said Spilman may, at any time, know the condition of said business, should its settlement be, by any accident, devolved on him; and the said Shackelford has the right to call on said Spilman for assistance and explanation in regard to any of the business of said firm that he may find himself unable to settle.”
Thus we see, the contract of said Shackelford was to discharge all the debts of said firm, of every nature and description, upon the following terms: “The said Shackelford agrees to wind up all the business of said firm, applying the asests, as fast as realized, to the payment of its debts, all of which he assumes to pay, hereby discharging said Spilman from all liability for the same; the surplus remaining, after the payment of said debis, to belong exclusively to the said Shackelford.”

The said Shackelford was thus declared to be a trustee of the partnership estate, which is of course a trust estate *for the payment of the debts of the partnership, the assets of which, as fast as realized, were to be applied by said trustee to such payment; and only “the surplus remaining, after the payment of said debts, to belong exclusively to the said Shackelford.” And it was expressly agreed that “the said Shackelford will keep an account of all receipts and disbursements by him, on the books of the late firm; so that the said Spilman may, at any time, know the condition of said business, should its settlement be, by any accident, devolved on him; and the said Shackelford has the right to call on said Spilman for assistance and explanation in regard to any of the business of said firm that he may find himself unable to settle.” The partnership was thus, in effect, continued until, and for the purpose of, the winding up of the concern. And the lien of the vendor, Spilman, on the partnership estate, for the payment of the debts of the partnership, which lien resulted from the existence of the partnership, was continued and preserved to him until the business of the firm should be fully settled; until which event and for which purpose the partnership will, in effect, continue in existence.

It follows, therefore, from what has been said, that that part of the estate of B. H. Shackelford, deceased, which was a part of the partnership estate of the late firm of Shackelford & Spilman, is first liable to the payment of the'debts of said firm, before it is liable to the individual debts of said B. H. Shackelford.

The court, without considering in detail the other objections taken to the said decree of the 25th day of April, 1874, in the appellant’s assignment of errors, is of opinion and doth determine that the said objections are groundless and be overruled, and that there is no error in the said decree, and, therefore, that the said decree be affirmed.

The second decree complained of in the first of the said two appeals is, the decree of -December term of said court, *1875, whereby the petition of the appellant, J. C. Gibson, administrator d. b. n. w. w. a. of B. H. Shackelford, and of Rebecca B. Shackelford, widow of said B. H. Shackelford, for the review.and reversal of the said decree of the 25th of April. 1874, was dismissed.

The court is of opinion, that for the same reasons for which the said circuit court did not err in making the said decree of the 25th day of April, 1874, as aforesaid, it did not err in dismissing the said petition for the review and reversal of the said decree.

The third decree complained of is, that of the 24th day of December, 1875; by which sundry exceptions taken to the report of Commissioner Shepperd, filed in the case of “Gibson v. Shackelford,” on the 24th of August, 1875, were overruled. Sundry other exceptions taken, to said report were recommitted to said commissioner, who was directed also to make certain enquiries; but as those portions of the decree decided nothing, it will be unnecessary to notice them here, and only necessary to notice so much of said decree as overrules exceptions to said report. The said overruled exceptions are the 1st, 2d, 3d. 4th, the 5th in part, the 6th, 7th, 8th. 9th, 10th and 14th taken to the said report by the appellant, and the 1st taken thereto by Thos. N. Latham. The said exceptions taken by the appellants are as follows:

“1st. Said commissioner in said report undertakes to sever what were formerly the assets of the late firm of Shackelford & Spilman, from the assets of the estate of the testator, and to'hold the same liable to the creditors of said late firm, to the exclusion of the creditors of said B. H. Shackelford.”
The court did not err in overrul'ng this exception, for the plain reason that the partnership estate of Shackelford & Spilman was liable to the payment of the partnership debts of that firm, before it was liable to the payment of the individual debts of said Shackelford, as has already beep shown. *“2d. Said commissioner reports that in all cases in which debts and liabilities incurred and contracted by E. M. Spilman, a former member of the firm of Shackelford & Spilman, and the consideration for said debts and liabilities, were charged upon the books of said late firm to the said firm; that such entries converted said debts and liabilities into firm debts.”

The court did not err in overruling this exception. The books of the firm were evidence against the firm; and were conclusive, in the absence of evidence to the contrary.

“3d. Because said commissioner reports, that the estate of B. H. Shackelford, deceased, is debtor to the late firm of Shackelford & Spilman for the amount of all assets of said late firm collected by the said B. H. Shackelford during his lifetime.”

The court plainly did not err in overruling this exception.

“4th. Because said commissioner reports that the social creditors of the late firm of Shackelford and Spilman have a lien on what were formerly the social assets of said late firm, to the exclusion of the individual creditors of B. H. Shackelford, deceased, notwithstanding E. M. Spilman, one of the members of said firm, for valuable consideration already received in full, sold and assigned to B. H. Shackelford, deceased, the other member of the firm, during his lifetime, all the- assets of said late firm, except the Arkansas land.”

The correctness of the decision of the court in overruling this exception is conclusively sustained by the reasons already assigned in support of the correctness of the decree of the 25th day of April, 1874.

“5th. Because said commissioner, in said report, insists upon charging the administrator d. b. n. c. t. a. of B. H. Shackelford with all sums received by H. R. Garden, the attorney at law of said administrator, whether the same *were paid over to said administrator by his said attorney at law or not, and insists upon crediting said administrator with all payments and disbursements made by the said attorney. whether made with or without the authority of the said administrator. This exceptant denies that he' is liable for any money collected by his said attorney at law, unless the same was paid over to him, or that he is liable or responsible for any payments or disbursements made by his said attorney at law, unless the same was made by his express authority.”

The decree of the court in regard to this xception is plainly right. It is, “that the 5th of said exceptions last named be overruled, so far as the same pertains to the collections made by the attorney of said administrator, and so far as the same pertains to the disbursements made by said attorney, were made by authority or approval or were properly made, they shall be allowed, and when made without such authority or approval, or were improper to be made, they should be disallowed.”

“6th. Because said commissioner recites in said report (page 6) that H. R. Garden paid this exceptant $875 this year, meaning apparently 1875, when it appears from the stated account of said Garden with this exceptant that the said attorney has paid over to him nothing this year, and only the sum of $2.17 during the year 1874.”
“7th. Because the said commissioner reports the debts of $8,331.67, in favor of Thos. N. Latham, as due in the aggregate and not in detail, and there is not sufficient evidence to sustain said charge, and especially no evidence to sustain the charge of $3,500 as of the 30th November, 1862, as contained in a memorandum filed herein as of the 1st January, 1875.”

There is nothing in the record before the court to show that the circuit court committed any error in overruling the said 6th and 7th exceptions, or either of them. In regard to the remaining exceptions, referred to in the said *decree of the 24lh of December, 1875 — to wit: the 8th, 9th, 10th and 14th which were overruled by the said decree, and the 12th, 13th and 15th, which were recommitted to said commissioner by said decree — it is unnecessary to insert them here, or to say more than that it does not appear from the record that the circuit court erred in regard to them or any of them.

The fourth and last decree complained of in the first of the said two appeals is the decree of the 31st of December, 1875, whereby the said J. C. Gibson was required to deposit in the First National Bank of Alexandria, to the credit of these causes, the sum of $2,768.51, being the amount appearing to be in his hands as receiver of the assets of Shackelford & Spilman in the said causes, after deducting the amount claimed by said receiver, J. C. Gibson, for his fees, &c.; the amount so claimed being a matter reserved for future consideration.

It is unnecessary here to take any further notice of the said decree, or of the assignment of errors therein in the petition of appeal therefrom, as the said decree requiring the said sum of $2,768.51 to be deposited in bank as aforesaid, with which the said receiver had failed lo comply, was rescinded by the decree made in these causes on the 22d of April,1876.

Having sufficiently noticed the assignments of error in the petition for the first appeal obtained in these cases, we will now notice those contained in the petition for the latter of the two appeals obtained in the said cases — to wit: the appeal from the two decrees of the 17th and 22(1 days of April, 1876.

In -the petition for the last mentioned appeal there, are seven assignments of error by the appellant, J. C. Gibson, which will be briefly noticed in the order in which they are made. They are as follows:

1st. Tn overruling his exceptions to Commissioner Shepperd’s report, numbered i, 2, 3, 4, 6. 7.

*2. In requiring him to give a new bond as receiver.

3. In removing him as receiver as aforesaid.

4. Ln appointing A. D. Payne as -a receiver in his stead.

5. In requiring him to pay to said Payne, receiver as aforesaid, the sum of $5,384.84, with interest on $4,685.82, par-t thereof, from 26th March, 1876.

6. In appointing John M. Forbes a commissioner to sue for and collect said last mentioned sum of him.

7. In refusing to allow him any fees, &c., whatever, for his professional services as an attorney and counsellor at law.

1. As to the first of these assignments of error: “In overruling his exceptions to Commissioner ShepperdN report, numbered 1, 2, 3, 4, 6, 7.” It is sufficient to say that there is nothing in the record before the court to show that the circuit court erred in overruling the said exceptions or any or either of them.

2. As to the second of these assignments: “In requiring him to give a new bond as receiver.” We think that the security on the old bond was insufficient, and the circuit court did not err in this respect. If this court would reverse a decree of an inferior court for requiring a new bond in such a case, it would only be done where there was palpable error in making such requisition. Certainly there was no such error in this case if it were not perfectly proper to make the requisition.

3. As to the third of these assignments: “Tn removing him as receiver as aforesaid.” If it was proper in the circuit court to require him to give a new bond as receiver, it follows, as a necessary consequence, that it was proper for said court to remove him as receiver in the event of his failue to comply with such a requisition. As the propriety of Ihe former act will be inferred, at least in the absence of palpable evidence to the contrary, it follows, necessarily, that the propriety of the latter act will be also inferred in such a case. *4. As to the fourth of these assignments: “Tn appointing A. D. Payne as a receiver in his stead.” There is nothing in the record tending to show the impropriety of this appointment.

5. As to the fifth of these assignments: '“In requiring him to pay to said Payne, receiver as aforesaid, the sum of $5,384.84, with interest on $4,685.82, part thereof, from 26th of March, 1876.” When the said requisition was made, the said sum of $5,384.84, was the amount of the partnership fund of Shackelford & Spilman then in the hands of the receiver, J. C. Gibson; and A. D. Payne being appointed receiver in the place of J. C. Gibson, who was removed from the said office, the fund of the partnership then in the hands of the old receiver was ordered to be paid by him to the new receiver. This transfer of the partnership fund from the hands of the old to those of the new receiver was a proper act, and the legitimate, if not necessary, consequence of the change of the receivership. The old receiver, J. C. Gibson, had a large claim against the fund in his hands, as such, for professional services claimed to have been rendered by him in regard to the partnership fund during the existence of his receivership. It was decreed by the circuit court in these two causes, on the 31st of December. 1875, that said J. C. Gibson, theretofore appointed receiver in the first of said two causes — to wit: that of B. H. Shackelford’s adm’r v. R. B. Shackelford & al — “do pay into the First National Bank of Alexandria, to the credit of said two causes the sum of $2,768.51, being the amount appearing in his hands by the supplemental report of Commissioner Shepperd, filed on 16th September, 1875, after deducting the amount claimed by said receiver, J. C. Gibson, for his fees, &c., reversing for future consideration the amount so claimed, and that 'said receiver do also pay into said bank any moneys receivedbyhimassuch receiver since the period embraced in the said report of Commissioner Shepperd, and also any ^moneys he may hereafter collect as such receiver, and file among the papers in this cause the certificate of said bank of such deposits, and that said J. C. Gibson do settle before Master Commissioner Shepperd a further account of his actings and doings as receiver aforesaid, and that said commissioner do ascertain and make report, whether the bond of said receiver, filed in said first named cause, is a good and sufficient bond to protect the interests of the parties who may be entitled to the funds that have come or may come into the hands of said receiver, and that said J. C. Gibson be summoned to appear here on the 2d day of the next term of this court, to show cause why he should not be required to execute a new bond, with good and sufficient sureties therein, as receiver in said cause.”

On the 17th of April, 1876, the said two causes came on to be further heard, upon the papers formerly read and sundry other papers. and the exceptions therein named, and upon the rule against said J. C. Gibson, receiver of the assets of Shackelford & Spilman, &c., to show cause why he should not be required to execute a new bond as such receiver: on consideration whereof the court overruled several of the said exceptions, and recommitted others to said commissioner for further enquiry and investigation, and further decreed that J. C. Gibson, receiver as aforesaid, be required, on or before the 22d of April, 1876, that being the last day of the then present term of the said circuit court, “to execute a new bond as such receiver, with good and sufficient surety, in the penalty of $20,000. with conditions as are in his former bond.”

On the 22d of April, 1876, the said two causes came on to be further heard iipon the papers formerly read: on consideration whereof the court confirmed “so much of the report of Commissioner Shepperd, filed on the 1st of April, 1876, in the first named cause, as ascertains the total amount due by J. C. Gibson as receiver of the assets of the firm of Shackelford & Spilman to be $5.384.84 on the *26th of March, 1876, with interest On $4,685.82, part thereof, from 26th March, 1876; and the court, having by a decree entered on the — day of-, ordered said J. C. Gibson, receiver as aforesaid, to pay into the First National Bank at Alexandria, to the credit of these causes, the sum of $2,768.75. and other moneys in said decree specified, and to file among the papers in these causes certificates of said bank of •said deposits, with which said order said Gibson, receiver as aforesaid, hath failed to comply, and as the said sum of $2,768.75 is part

of the said amount of $5,384.84, the order directing said payments into said bank is hereby rescinded; and the court” decreed “that said J. C. Gibson, receiver as aforesaid, do pay unto A. D. Payne, who is appointed receiver of said assets of Shackelford & Spilman by a subsequent provision in this decree, the aforesaid sum of $5,384.84, with interest on $4,685,82, part thereof, from 26th March, 1876, until paid, and the said J. C. Gibson, receiver as aforesaid, having been required by the decree entered on the •— day of this term of the court, to execute a new bond as such receiver, on or before this day. and having failed so to do, the court” decreed that the said J. C. Gibson be removed and' displaced as receiver aforesaid, and his powers as such be annulled and revoked. And the court further decreed that Alexander D. Payne be appointed in the stead of said J. C. Gibson, receiver of the assets of said firm of Shackelford & Spilman, and of the amount decreed above to be paid by said Gibson, receiver, to him; and that said Gibson, heretofore receiver as aforesaid, do deliver to said Payne, “receiver hereby appointed, all the choses in action, &c., belonging to said firm and pertaining to their business. &c. But before said Payne, receiver as aforesaid, should discharge any duties as such, he was required by said decree to execute bond, with good security, payable to the commonwealth of Virginia, in the penalty of $15,000, conditioned for the faithful discharge of his *duties as such receiver. And said A. D. Payne was directed to file among the papers in said two causes a statement of assets he may receive under said decree, and to proceed to collect, with reasonable diligence, all debts due to said firm, and was authorized to' employ counsel to aid him therein, &c., and to present an account of his doings as receiver to a master commissioner of the court in said causes. And unless the said Gibson, receiver as aforesaid, should within 60 days from the rising of the said circuit court, pay to said Payne, appointed receiver in the stead of said Gibson, then the said court by said decree, appointed John M. Forbes a commissioner, who was ordered to withdraw the receiver's bond executed by said Gibson and his sureties therein, and filed in said causes, and proceed to collect the said sum and interest above decreed to be paid by said Gibson, heretofore receiver, by such legal proceedings as he may deem proper, and by suit upon his bond as receiver, and report to the court. But before said Forbes shall receive any money under said decree, he was required to execute bond, with good security, in the penalty of $6.000, conditioned for the faithful performance of his duties under said decree; and leave was reserved to any party interested to apply for such further relief by way of the enforcement of said decree as may be determined to be proper and lawful.”

Thus it appears that the said 5th assignment of error is not well founded.

6. As to the sixth of the said assignments: “In appointing John M. Forbes a commissioner to sue for and collect said last mentioned sum of him,” said Gibson. There is no good ground of objection to this part of the decree aforesaid. If the former receiver shall fail to make payment of the fund with which he is chargeable as such to the present receiver, then an action at law will no doubt become necessary against the former receiver and his sureties on his bond as such, and that action must be brought *by an attorney at law. The commissioner appointed in this case to sue for and collect the amount of said bond is such an attorney, and the presumption is (what we all in fact know as a matter dehors the record) that he is well qualified to perform that duty and trustworthy in every respect. Besides, he is required by the decree appointing him commissioner as aforesaid, before receiving any money under said decree, to execute bond, with good security, conditioned for the faithful performance of his duties under the said decree.

7. As to the seventh and last of the said assignments: “In refusing to allow him any fees. &c., whatever for his (J. C. Gibson’s) professional services as an attorney and counsellor at law.” Now, this matter was expressly reserved for future consideration by the said circuit court in the said decree of the 31st of December, 1875, and there is nothing in tile'record to show that it has since been so considered. Whatever he may be entitled to on account of said claim may be asserted hereafter against the assets of the said partnership of Shackelford & Spilman. It was proper for the circuit court to take care of those assets, and keep them m the hands of a receiver bound by bond, with good security, until it can be ascertained who are entitled to Ihem, and in what proportions, and to distribute and apply them accordingly.

Upon the whole, the court is of opinion that there is no error in the decrees appealed from, and that the same ought therefore to be affirmed.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that there is no error in any of the decrees appealed from in this case, to wit: the decrees of the 23th day of April, 1874; the 22d day of September, *1875: the 24th day of December, 1875. and the 31st day of

December, 1875; to which four decrees an appeal was allowed by a judge of this coutt on the 26th day of May, 1877; and the 17th day of April, 1876, and the 22d day of April, 1876; to which last named two decrees an appeal was allowed by a judge of this court on the 5th day of March, 1878 — which two appeals are embraced in and constitute this case. But the court is of opinion that there is not in the said decrees, or any of them, any decision of the said circuit court in regard to the claim of the receiver, J. C. Gibson, for his fees, &c.; the said court having, by its said decree of the 31st clay of December, 1875, reserved for future consideration the amount so claimed; which question remains undecided and subject to the decision of the said circuit court, notwithstanding the said decree of the 22d day of April, 1876, whereby the said court confirmed so much of the report of Commissioner Shepperd, filed on the 1st of April, 1876, as ascertains the total amount due by J. C. Gibson as receiver of the assets of the firm of Shackelford & Spilman, to be $5,384.84 on 26th March, 1876, with interest on $4,685.82, part thereof, from 26th March, 1876; and decreed that said J. C. Gibson, receiver as aforesaid, do pay unto A. D. Payne, who is. appointed receiver of said assets of Shackelford & Spilman by a subsequent provision in said decree, the aforesaid sum of $5,384.8-1, with interest on $4,685.82, part thereof, from 26th March, 1876, until paid; the said sum of $5,384.84 being the whole amount then due by said Receiver Gibson, without making any deduction for his fees, &c., as aforesaid.

Therefore, it is decreed and ordered that the said decrees appealed from in this case, subject to the explanation aforesaid, and without prejudice to the right of the said J. C. Gibson to recover any amount to which he may hereafter be held to be entitled for his fees, &c., as aforesaid, be affirmed, *and that the appellant, J. C. Gibson pay to the appellee E. M. Spilman thirty dollars damages and his costs by him about his defence in this court expended.

Which is ordered to be certified to the said circuit court.

Decrees affirmed.  