"Inasmuch as an individual partner could not himself come in and compete with the partnership creditors, who are in fact his own creditors, in the distribution of the fund, and thereby prejudice those who are not only creditors of the partnership but also of himself; therefore the separate creditors of a partner could not enforce any claim to a distributive share of the joint effects against the partnership creditors, which could not have been enforced by the partner himself, for his own benefit. Story on Partnership, Sec. 390. The rule, however, that these several funds are to be thus administered as they stood at the time of the insolvency, is to be received with this important limitation, that it does not apply in case, either where the effects obtained, creating the debt, were taken from the separate estate to augment the joint estate, or from the joint estate to augment the separate estate, fraudulently, or under circumstances from which fraud may be inferred, or under which it would be implied."

"Judgment of the common pleas reversed; and ordered that the separate effects of Peter Murray be distributed pro rata first among his individual creditors, before any application thereof be made to the payment of the partnership debts of Dever & Murray; and that the partnership effects be applied first to the payment of the partnership debts, irrespective of the claim of the partner, Peter Murray, for money loaned by him to the firm."

Notwithstanding the reasoning of the court, which is forcible and announces the law, it would appear to the writer that it would be more consonant with principle and justice, if the firm creditor were allowed to assign to the individual estate his interest in the firm proprety and thereupon share with the individual creditors.

In Harris vs. Peabody, 73 Me., 262, the partners were Williams and Norton; the assets of the partnership amounted to one dollar and nineteen cents; Norton's individual estate had no assets; Williams' estate amounted to about $1,200. The assets were in the hands of a court of bankruptcy. The claims filed were as follows: Against the firm, $2,200; against Williams, $1,100; against Norton, no claims.

The partnership creditors claimed a pro rata dividend from the separate estate of Williams, pari passu, with his individual creditors; but the judge in the lower court denied the claim and decreed that the assets of Williams should be distributed among his individual creditors.

On appeal this decision was reversed. There was no solvent partner, and no net or available proceeds from the joint estate.

"If there is no available joint estate and no solvent partner, then the creditors of the partnership have no exclusive fund to exhaust, and may share concurrently with the separate creditors of the separate estate."

Though when there are any available joint assets, however small in value, the general rule of marshaling the assets would apply. Net or available proceeds are proceeds after court expenses are paid.

Judgment against a partnership is a lien against the individual real estate of each partner equally with judgments against them personally. The bearing of this fact on the doctrine of marshaling assets in courts of insolvency may be seen in the following statement taken from the decision in Meech vs. Allen, 17 N. Y., 300, 72 Am. Dec, 465.

"As there is no doubt that at law the judgment for a partnership debt attaches and becomes a lien upon the real estate of each of the partners, with the same effect as if such judgment were for the separate debt of such partner, it is obvious, from the preceding authorities, that the theory upon which the complaint was drawn is erroneous. The principle that the separate property of an individual partner is to be first applied to the payment of his separate debts has, as we have seen, never been held to give priority, as to such property, to a subsequent judgment for an individual debt over a prior judgment for a partnership debt. It is true that courts of equity will sometimes give to a mere equitable hen, which is prior in point of time, a preference over a subsequent judgment; but this will be done only where such prior lien is specific in its character, as in the case of White vs. Carpenter, 2

Paige (N. Y.), 219. The mere general equity of the separate creditors to have their debts first paid out of the individual property of the partners does not amount to a lien at all, much less a lien of the kind necessary to give it a preference over a judgment for a partnership debt"