
    Salsbury v. Ellison.
    
      Error to District Court of Bowlder Qounty.
    
    Messrs. Harmon .and Ellis, .for -.plaintiff in error.
    Mr. Platt Rogers and Mr. R. :H. Whitley, for defendant in error.
   On petition for rehearing the following opinion was delivered by

Helm, J.

■ We discover no reason for changing our views upon the leading questions considered in the opinion deciding the case.

The following propositions were’ announced and are still adhered to, viz.:

First. That an assignment by the surviving partner of an insolvent firm for the benefit of preferred creditors is invalid in equity, when the question is properly drawn in issue, and that this was true before the adoption of our recent statute on the subject.

Second. That in actions at law, appropriate equitable defenses may be interposed.

Third. That if the defense be not averred in the answer, yet be fully established by the plaintiff in attempting to make out his case in the first instance, he will be deemed to have waived the absence of averment, and cannot recover, if objection be taken by defendant; and

Fourth. That this waiver takes place, under our practice, whether the specific defense proven by the plaintiff be legal or equitable.

But these propositions must, of course, be understood with the qualification that the legal action is between the proper parties; and that the defense, legal or equitable, is one of which the defendant is entitled to the benefit.

In their argument supporting this petition for a rehearing, counsel urge with considerable force that the defendant in' this case has no interest in the equitable defense'above stated, and was .not entitled .to plead the same; also, that the question of fraud in the assignment could only become important and be "adjudicated in an action to'which ..the surviving partner, and the unpreferred creditors as well as the assignee, were parties.

We have decided to grant the prayer of the petition, for the purpose of more fully considering these questions; the arguments upon the rehearing will be confined thereto.

Rehearing allowed.

Beck, O. J.

I concur that a rehearing should be granted.  