
    J. C. Wilson & Co. et al. vs. J. R. Bowden.
    An assignment by one partner of his interest to Ms separate creditor is valid, at law, against the creditors of the firm subsequently attaching.
    BEFORE O’NBALL, J., AT SPARTANBURG-, AUGUST, EXTRA TERM, 1854.
    The plaintiees were creditors of the firm of Morgan & Cothran, merchants, doing business on Thickety creek, in Spartanburg district. J. B. Morgan, one of the partners, was, individually, indebted to insolvency. He was indebted to the defendant, Bowden, in the sum of five hundred and fifteen dollars, exclusive of interest; and the defendant was one of bis sureties on a note for eight hundred dollars. On Saturday, January 22, 1853, at Spartanburg Court House, Morgan, in the presence of a witness, said to Bowden, in substance, as follows: “ Go to Thickety, and take into your possession my half of the goods in the store of Morgan & Cothran, for your indemnity as my surety.” On the same day Bowden went to Thickety, got possession of the goods in the store, carried them to North Carolina, there bought out Cothran’s interest, and sold the goods for one thousand three hundred and forty-two dollars, Morgan’s share being one-half, six hundred and seventy-two dollars.
    The plaintiffs afterwards issued their writs of attachment, and the defendant was summoned as garnishee. He made a return, setting out the proceeds of the goods sold in North Carolina, and other effects in his hands. Morgan’s interest in the whole amounted to one thousand and fourteen dollars, inclusive of a note on the garnishee. This sum Bowden claimed as creditor in possession, and also as assignee.
    His Honor held, that one partner could assign his share of the partnership goods, and the assignment would be valid against partnership creditors. He submitted it to the jury to decide, whether the assignment and possession were obtained, Iona fide. The jury found' for the garnishee. The plaintiffs appealed, and now moved this Court for a new trial on the ground, inter alia, that his Honor erred in holding, that the assignment by Morgan of his interest in the co-partnership effects, to satisfy the claim of his separate creditor, was valid against the claims of the creditors of Morgan & Cothran.
    
      Thompson, for the motion.
    
      Bolo, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The Court is not disposed to review the facts in this case. The jury, with 'better means of judging correctly than we possess, have decided, that there was no fraud in any respect as charged in the suggestion. We are content to abide by their conclusion.

It is only thought necessary to make a few remarks explanatory of the rights of co-partnership creditors.

There is no doubt in bankruptcy, or in the case of the death of one of the partners, or where it is a contest among execution creditors, the rule both at law and in equity is the same. In Bowden vs. Schatsell, Bail. Eq. 360, it is said by Judge .Harper, that the property of a partnership is liable to the debts of the partnership before any part can be applied to individual debts. In White, assignee, vs. The Union Insurance Company, 1 N. & McC. 557, the rule was recognized, at law, that co-partnership effects ought to go to the payment of co-partnership debts, in the first place, then to the payment of the private debts of each co-partner afterwards, in proportion to his share in the joint funds.

This I understand to be the rule among execution creditors of the partnership, and of the individual partners.

In bankruptcy, it has been 'held in Young vs. Keighly, 15 Ves. 557, that an assignment by one partner of the joint property to secure his separate debt, must be subject to the joint debts. Here we have no similar means of reaching the same result. But even in England, and in bankruptcy too, in Ex parte Rowlandson, 2 Ves. & Beam. 172, and in Ex parte Ruffin, 6 Ves. 119, it has been held, that there is no lien on co-partnership effects for creditors until execution. From this it would seem, that the plaintiffs here cannot, at law, assail the assignment to the defendant of the co-partnership effects by the absent debtor, Morgan, for the indemnity of the defendant against the debt to Lipscomb, until they have recovered their judgments, and sued out their executions. Even then, I do not pretend to say what may be the result. For, if the share of a partner may be attached, as was decided in Schatzell vs. Bolton, 2 McC. 478, and may be ordered to be paid over to the attaching creditor, on his giving security to abide the claims of partnership creditors, as was decided in 3 McC. 38, I do not perceive why the assignee in possession should be disturbed, until it appears that he should, for some superior equity, be made subordinate to the partnership debts.

Now, at least, there is no reason why at law, having the legal right to the possession under the assignment by Morgan, he should be disturbed by mere alleged co-partnership debts: and which may, for aught we can hnow, until there is an account, be fully paid without reaching the fund now in dispute.

The motion is dismissed.

Wardlaw, Withers and Glover, JJ., concurred.

Munro, J., absent from indisposition.

Motion dismissed.  