Cleghorn vs. The Insurance Bank of Columbus.

Mylne, 494,) that a partnership contract is several as well as joint, then there seems no ground to make any difference whatsoever in any case between joint and several creditors as to payment out of joint or separate assets. 1 Story's Eq. Jur. 626,

notes.

In Tuckers vs. Oxley, (5 Cranch, 35,) Judge Marshall considered that even in bankruptcy, the rule when properly understood, was nothing more than the equitable principle of compelling the joint creditors, as having two funds, to exhaust the fund which was appropriated to them before coming upon the fund to which the separate creditors were also entitled.

Now, I can very well understand why the rule should be maintained upon the principle of two funds, whenever the facts will justify its application; that is, if there were partnership effects in this case, which had not been exhausted, it might be equitable to force the joint creditors to proceed first against these partnership effects; or, if Cleghorn's fi. fa. was against Calhoun only -that of the Insurance Bank being against Calhoun & BassChancery would interfere and compel the latter to go against Bass, provided he was solvent. But where, as in the present case, the partnership is insolvent, and where the claim of the separate creditor is against each of the joint debtors, I should be exceedingly reluctant to recognize a rule which was adopted as one of convenience merely, and which excludes a creditor of the partnership from all share of the separate estates of the partners until the separate debts are paid, or which would, on the other hand, exclude a separate creditor from all share of his debtor's joint property until the joint debts are paid.

On the delivery of this opinion, and before I had had an opportunity of consulting any of the American authorities, I ventured the opinion that the rule under discussion was founded upon a basis radically unsound, namely: that the funds are to be liable on which the credit was given-that in contracting with a partnership, the credit is supposed to be given to the firm; but those who deal with an individual member, rely on his sufficiency. I insisted that we trusted everybody for what he is supposed to be worth; and I am gratified to discover that Chief Justice Tilgh

Cleghorn vs. The Insurance Bank of Columbus.

man in Bell vs. Newman, took the same view of this subject. He says, "The truth is, that persons who trust the partners, either in their separate or partnership character, generally do it on the credit of their whole estate, both joint and separate." "When men," he continues, "enter into partnership, they often borrow money on their private accounts for the very purpose of creating partnership stock; and this they may continue to do during the partnership. And on the other hand, the individuals of a partnership often withdraw money from the joint stock and convert it to separate property, in such a manner that it cannot be traced or identified. In such cases," he adds, "it is evident that this rule in bankruptcy works cruel injustice."

That such a rule should have been yielded to, (for it appears never to have been firmly established,) in a country where the bankrupt system has been "in full blast" ever since the reign of Henry the Eighth, is not surprising. It saves a vast amount of trouble in settling intricate accounts between partners in the disposition of the bankrupt's estate; but, as a new question, the rule never could have obtained in a country like ours.

[2.] But conceding the rule to be settled as contended for, and the weight of authority, if not of justice, is perhaps in its favor, especially in Chancery adjudications in Britain before the revolution; and grant, moreover that it is applicable not only in bankruptcy, but upon general equity;

There is another feature in this case which withdraws it from its operation. It is in a Court of Equity only that the joint creditor can be restrained from proceeding against the separate estate. The equity in favor of the separate creditors will never be enforced to control or take away a right acquired by legal execution on the part of joint creditors against the separate es

tate.

[3.] And it is only when the legal recourse of the joint creditor against the separate estate is terminated, and they have no claim against these assets, except in Equity, as in case of the death, bankruptcy (or perhaps statutory assignment in insolvency) of a partner, that the joint creditors are postponed. And this is agreed to be law even in those Courts which recognize the rule I have

Ellis vs. Fraucis.

been considering as a principle of general equity. 1 Amer. Lead. Cases, 325. Allen vs. Wells, 22 Pick. R. 455. 1 Har. & Gill, 96. 1 Stor. Eq. Jur. 625.

Inasmuch, then, as the Insurance Bank is not invoking the aid of Equity to inforce its lien, but is asserting in a Court of Law its legal rights against the legal estate of one of the partners, there is no reason why its judgment lien should be excluded or postponed in behalf of the separate creditors. We consequently hold that the rule, as applicable to the facts and circumstances of this case, was correctly stated by the presiding Judge on the circuit..

Judgment affirmed.

No. 62.-WILLIAM ELLIS, plaintiff in error, vs. CORDAL FRANCIS, defendant in error.

[1.] Where a Constable who did not write a good hand, requested a Justice of the Peace, in his presence, to make a return of "no property" on two Justices' Court fi. fas. he knowing the return to be true of his own personal knowledge: Held, that the return was to be considered as the act of the Constable himself, and valid in law.

[2.] Where a verdict was rendered in a claim case, in which the plaintiff in execution had been dead four years, and whose estate was unrepresented before the Court: Held, that the verdict ought to have been set aside on motion.

Claim, in Sumter Superior Court. Tried before Judge WARREN, November Term, 1850.

This was an issue upon a claim to a tract of land levied on by two Justices' Court fi. fas. in favor of Cordal Francis vs. Major Ellis and another, issued in August, 1841, with an entry of "no property," by Joseph Tarbutton, L. C. dated in April, 1847. On the trial the claimant proved by Joseph Tarbutton, that the en

Ellis vs. Francis.

try was not in his handwriting, but was made by one of the Justices of the Peace, in the presence of and at the request of witness, he knowing the fact to be true, and not writing a good hand himself.

Counsel for claimant requested the Court to charge the Jury, that the fi. fas. were dormant-the Constable not being authorized by law to delegate the authority to perform those duties required by law of him.

The Court refused so to charge, but instructed the Jury, that if the entry was made in the presence and under the direction of the Constable, that it was valid. To which charge and refusal to charge, the claimants excepted, and have assigned error thereon.

After the verdict was returned, and before judgment thereon, counsel for claimant moved the Court to set aside the same, on the ground that the plaintiff, Cordal Francis, was dead, and had been for four years, which fact was proven to the Court. The Court refused the motion, unless the claimant would file his affidavit, that he was ignorant of the fact at the time of trial, which the claimant declined to do. The Court then offered to grant claimant a rule misi against the attorney conducting the cause, to show cause at the next term why the verdict should not be set aside, which the claimant declined to accept. The Court then overruled the motion to set aside, and this decision is assigned as ground of error.

B. HILL, for plaintiff in error.

J. B. HINES, for defendant in error.

By the Court.-WARNER, J. delivering the opinion.

[1] The first question made by the record in this case is, whether the return of nulla bona upon the two Justices' Court fi. fas. made by Joseph Tarbutton, lawful Constable, is a valid return. It is insisted by the plaintiff in error the return is not valid, because made by another person for the Constable; that the Constable could not delegate his authority to another to act for

Ellis vs. Francis.

him in regard to his official business. The Constable, who was examined as a witness, stated that the entry on the fi. fas. was not in his handwriting, but was made by one of the Justices of the Peace, in his presence and by his request, he knowing the fact to be true, and that he did not write a good hand himself. We are of the opinion this return on the fi. fas. of "no property" being made in the presence of the Constable, and by his request, with a personal knowledge of the truth of the return, may be considered as the act of the Constable himself, as much so as if he had held the pen in his own hand, and the Justice of the Peace had directed it in making the entry.

[2] The second ground of error taken is, the refusal of the Court to grant the motion to set aside the verdict, on the ground that the plaintiff in the execution was dead. It was made to appear to the Court, that the plaintiff had been dead four years previous to the trial. The Court refused the motion, unless the claimant would file his affidavit, that he was ignorant of the fact at the time of the trial, which the claimant declined doing, and insisted on his motion to set aside the verdict. This motion, in our judgment, should have been granted, for the reason that the trial was a nullity when one of the parties was dead and unrepresented before the Court.

If the counsel had knowledge of the fact of the death of the party, and failed to suggest the same to the Court at the trial, that is a matter for the Court to consider, whether as officers of the Court they acted in good faith, or intended to practice a fraud upon the Court; but however that may have been, it cannot prevent the verdict from being considered as void in law, and consequently ought to have been set aside. See Tedlie vs. Dill, 3 Kelly, 104.

Let the judgment be reversed.