The property of a partnership is bound to the payment of the partnership debts, and the right of a private creditor of one copartner to that partner's interest in the property of the firm, is postponed to the right of the partnership creditor. (z)1 But it *is said that if the contract between the partners pre- * 20.3 vents them from having any lien on the partnership effects for the payment of the partnership debts, the partnership creditors have no preference over individual creditors. (a)

Difficult questions sometimes arise where the private creditor seeks to attach, or levy upon the partnership property, or the interest of the indebted partner therein. Where attachment by mesne process exists, such attachment is allowed; but it is generally made subject to the paramount rights of the partnership creditors. (b)1 And such attachment is defeated by the mere * insolvency of the firm, although the partnership creditors have commenced no action for the recovery of their debts. (c) But where one partner is dormant, the creditor of the other is not then postponed in his attachment of the stock in trade, to a creditor of the same firm who had discovered the dormant partner, and makes him defendant. (d) But such postponement would be made, where the first attaching creditor's debt did not arise from the partnership business, and the debt of the second creditor did arise therefrom. (e) The same rule is

Co. 12 Barb. 27; Lyon v. Johnston, 28 Conn. 1; Myers v. Smith, 15 Ia. 181; Reilly v. Smith, 16 La. An. 31.

(z) Murrill v. Neill, 8 How. 414; Pierce v, Jackson, 6 Mass. 243; Tappan v. Blais-dell, 5 N. H. 190; Brewster v. Hammett, 4 Conn. 540; Commercial Bank v. Wil-kins, 9 Greenl. 28; Douglas v. Winslow, 20 Me. 89; Donelson v. Posey, 13 Ala. (n. 8.) 752; Filley v. Phelps, 18 Conn. 294; Pearson v. Keedy, 6 B. Mon. 128; Black v. Bush, 7 id. 210; Glenn v. Gill, 2 Md. 1; Sutcliffe v. Dohrman, 18 Ohio, 181; Baker's Appeal, 21 Penn. St. 76. Preference is denied to the creditors of the partnership, where there has been a bona fide sale of the partnership effects without the reservation of a lien. Ketch-um v. Durkee, 1 Barb. Ch. 480; Reese v. Bradford, 13 Ala. 387. See Smith v. Edwards, 7 Humph. 106. An assignment by partners of their joint and separate property for the payment of their debts, with preference to certain partnership creditors and certain individual creditors, has been held valid. Kirby v. Schoonmaker, 3 Barb. Ch. 46, 50. - In Vermont, the creditors of the partnership, in attaching partnership property, are at law entitled to no preference to creditors of an individual partner. Reed v. Shepardson, 2 Vt. 120; Clark v. Lyman, 8 Vt. 290. But in equity the partnership effects are pledged to each partner until he is released from all his partnership obligations, and are first chargeable with the claims of the partnership creditors, notwithstanding prior attachments of the separate creditors. Washburn v. Hank of Bellows Falls, 19 Vt. 278; Bardwell v. Perry, 19 id. 292; Crooker v. Crooker, 46 Me."250.

(a) Rice v. Barnard, 20 Vt. 479; Snod-grass' Appeal, 13 Penn. St. 471; Jones v. Lusk, 2 Met. (Ky.) 356. See also Case v. Beauregard, 99 U. S. 119; Ross v. Tits-worth, 37 N. J. Eq. 333; Saunders v. Reilly, 105 N. Y. 12; Strauss v. Frederick, 91 N. C. 121; Foster v. Barnes, 81 Pa. 377. But see Tenney v. Johnson, 43 N. H. 144.

1 It is equally true that no partner has a right to share in the firm property except after payment of its liabilities. Staats v. Bristow, 7.! N. Y. 264; Rice v. McMartin, 39 Conn. 573; Hall v. Clagett, 48 Md. 223; Conant v. Frary, 49 Ind. 530. - K.

(b) Pierce v. Jackson, 6 Mass. 242; Phillips v. Bridge, 11 id. 248; Newman v. Bagley, 16 Pick. 572; Allen v. Wells, 22 id. 450; Trowbridge v. Cushman, 24 id. 310; Commercial Bank v. Wilkins, 9 Greenl. 28; Smith v. Barker, 1 Fairf. 458; Douglas v. Winslow, 20 Me. 89; Tappan v. Blaisdell, 5 N. H. 190. Richardson, C. J.: " According to the old cases in the courts of law, the separate creditor took the goods of the partners, and sold the share of his debtor, without inquiring what were the rights of the other partners, or what was the real share of each. Bachurst v. Clinkard, 1 Show. 173, 1 Salk. 392, 1 Comyns, 277. But the true nature of a partnership seems to have been better understood in more modern times, and it is now settled that each partner has a lien on the partnership property, in respect to the balance due to him, and the liabilities he may have incurred on account of the partnership." Morrison v. Blodgett, 8 N. H. 238; Page v. Carpenter, 10 id. 77; Dow v. Sayward, 12 id. 276; Brewster v. Ham-mett, 4 Conn. 540; Washburn v. The Bank of Bellows Falls, 19 Vt. 278; In the matter of Smith, 16 Johns. 102; Bobbins v. Cooper, 6 Johns. Ch. 186. But where a partnership was dissolved, and a creditor of the partnership afterwards took the joint and several note of the individual partners, held that he could not be regarded as a creditor of the partnership, nor entitled to preference as such. Page v. Carpenter, 10 N. H. 77. In Conroy v. Woods, 13 Cal. 626, it is held that when one partner buys out his copartners, agreeing to pay the debts of the firm, the partnership property remains bound for firm debts, just as before the sale. The lien of firm creditors attaching must be preferred to the lien of an individual creditor of the remaining partner, attaching first. See James v. Stratton, 32 Ill. 202.

(c) Pierce v. Jackson, 6 Mass. 242; Fisk v. Herrick, 6 id. 271. In the latter case the court said: " Before either partner can rightfully claim to his own use, or for the payment of his own debts, any of the partnership effects, the partnership must be solvent, and he must not be a debtor to it." - Rice v. Austin, 17 id. 206; Commercial Bank v. Wilkins, 9 Greenl. 28; Lyndon v. Gorham, 1 Gallis. 368. "The general rule undoubtedly is, that the interest of each partner in the partnership funds is only what remains after the partnership accounts are taken; and unless, upon such an account, the partner be a creditor of the fund, he is entitled to nothing. And if the partnership be insolvent, the same effect follows."