partnership: Fox v. Hanbury, Cowp. 445; Taylor v. Fields, 4 Ves. 396. The same fluctuation in the rule as to partnership property, has existed in the United States. The rule of selling the moiety of the separate debtor in the partnership property, on an execution, for his private debts, formerly prevailed in several of the states of the union, but the later decisions have changed the rule, and that now more generally adopted is in accordance with the one prevailing in England, and which has been already mentioned. The state of Vermont still adheres to the doctrine, that partnership creditors have no priority over a creditor of one of the partners as to the partnership effects: Reed v. Shepardson, 2 Vt. 120 [19 Am. Dec. 697]. The rule in Massachusetts, giving a priority to the partnership creditor in such cases, was settled in the case of Pierce v. Jackson, 6 Mass. 242, and has been uniformly followed since. The effect of the rule, that the only attachable interest of one of the copartners, by a separate creditor, was the surplus of the joint estate which might remain after discharging all joint demands upon it, necessarily was to create a preference in favor of the partnership creditors in the application of the partnership property, and this effect would be produced, although the original purpose of the rule might have been the securing the rights of the several copartners, as well as those of their joint creditors. Whatever may have been the object of the rule, the rule itself is now to be considered as well settled, as to the appropriation of partnership effects.

The defendants allege, that by law a similar priority exists in favor of a creditor of one member of a copartnership, as to the separate property of his debtor. Upon this point there has been not only a direct contrariety in the decisions as to the principle itself, but even where the principle has been admitted, various exceptions have been engrafted upon the rule.

The more ancient doctrine, as established by Lord Hardwicke, was, that separate creditors had a prior claim upon the separate estate. This principle was controverted by Lord Thurlow, who allowed joint creditors to take their dividends upon the separate estate of the partners. In the time of Lord Loughborough, the doctrine was again asserted, that the separate estate was first to be applied to the separate debts. Such has been the state of this question in the English courts, as declared by Lord Eldon, in Ex parte Clay, 6 Ves. 813. The want of uniformity in the application of the rule, as well as serious doubts in his own mind as to its utility, are plainly suggested by Lord Eldon in Dutton v. Morrison, 17 Id. 205. In the case of Ex parte Elton,

3 Id. 238, which is usually relied upon as having re-established the rule in England making the separate property first applicable to the payment of the separate debts, it seems to be admitted that a joint creditor who sues out the commission of bankruptcy against a separate debtor, is entitled to share ratably with the separate creditors in the distribution of the separate property. Subsequent English cases more explicitly state the rule of distribution to be, that of priority in favor of the separate creditors in the application of the separate estates. Such was the doctrine there, as was declared by Chancellor Kent in the opinion pronounced by him in Murray v. Murray, 5 Johns. Ch. 60, where the leading English cases up to that period, 1821, were fully considered by him.

But it will be found somewhat difficult to reconcile all the English cases, and to maintain that since the time of Lord Loughborough to the present day there has been no departure in principle from the rule adopted by him. The learned American commentator on equity jurisprudence, in noticing some of the later decisions, remarks, "that if the true doctrine be that avowed by Sir William Grant in the case of Devaynes v. Noble, 1 Meriv. 529, and afterwards affirmed by Lord Brougham, 2 Russ. & M. 495, 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. 626, in notis. I am not to be understood as suggesting that Mr. Justice Story doubts the existence of the rule in equity, that separate creditors are entitled to be first paid out of the separate estate. On the contrary, he distinctly affirms it. This principle has been directly recognized also in the cases of Wilder v. Keeler, 3 Paige, 167 [23 Am. Dec. 781]; Egberts v. Wood, Id. 518 [24 Am. Dec. 236]; Hall v. Hall, 2 McCord's Ch. 302; Woddrop v. Ward, 3 Desau. 203; Tunno v. Trezevant, 2 Id. 270.

As authorities prescribing a rule to govern a court of equity in the distribution of the assets of an insolvent estate, these decisions would be entitled to much consideration. But it is to be remarked, that no cases from any of the states of the union have been cited, where the question has arisen, in a court of law between different attaching creditors, and where an attachment or lien of a joint creditor upon the separate property of one of the partners, has been postponed or superseded by one subsequently made by a separate creditor of the same partner. The better opinion would seem to be, that it is in a court of equity only,

that the joint creditor can be restrained from proceeding against the separate estate. Such was the opinion of the late Chief Justice Marshall, as stated in the case of Tuckers v. Oxley, 5 Cranch, 35. So also in McCulloh v. Dashiell, 1 Har. & G. 96 [18 Am. Dec. 271], it was said that at law the joint creditors may pursue both the joint and separate estates, unless restrained by a court of equity. The same doctrine seems to be asserted by Mr. Justice Story, in his commentaries on equity, vol. 1, p. 625, where he says, "the separate creditors of each partner are entitled to be first paid out of the separate effects of their debtor, before the partnership creditors can claim anything; which can only be accomplished by the aid of a court of equity; for at law, a joint creditor may proceed directly against the separate estate." It is urged however on the part of the defendants, that as this court, as a court of law, have long since recognized the principle, that an attachment of the goods of a partnership by a creditor of one of the partners is not valid as against an after attachment by a partnership creditor, it should also adopt the converse of the proposition, giving a like preference to separate creditors in respect to the separate property. But we think that there is a manifest distinction in the two cases. The restriction upon separate creditors as to the partnership property arises not merely from the nature of the debt attempted to be secured, but also from the situation of the property proposed to be attached. In such a case a distinct moiety or other proportion, in certain specific articles of the partnership property, can not be taken and sold, as one partner has no distinct separate property in the partnership effects. His interest embraces only what remains upon the final adjustment of the partnership concerns. But on the other hand, a debt due from the copartnership, is the debt of each member of the firm, and every individual member is liable to pay the whole amount of the same to the creditor of the firm. In the case of the copartnership, the interest of the debtor is not the right to any specific property, but to a residuum which is uncertain and contingent, while the interest of one partner in his individual property is that of a present absolute interest in the specific property. Each separate member of the copartnership being thus liable for all debts due from the copartnership, and no objection arising from any interference with the rights of others as joint owners, it seems necessarily to follow, that his separate property may be well adjudged to be liable to be attached and held to secure a debt due from the copartnership.

Upon a full consideration of the question arising in the pres

ent case, the court are of opinion, that the rule at law was correctly stated in the case of Newman v. Bagley, and that the separate property of each member of a copartnership is liable to be attached for the debts due from the copartnership, and having been thus attached, the lien thus acquired is not to be defeated by a subsequent attachment by a separate creditor, or by an assignment under the statute of 1836, c. 238. This opinion is to be understood as confined to an assignment under the provisions of the statute just cited. The recent statute enacted for the relief of insolvent debtors, statutes of 1838, c. 163, has materially affected the lien acquired by attachment, and has in terms adopted as the rules for distributing the effects of insolvent debtors, that the net proceeds of the joint property shall be appropriated to pay the joint creditors, and the net proceeds of the separate estate of each partner shall be appropriated to pay his separate creditors.

Judgment for the plaintiff.

PARTNER'S SEPARATE PROPERTY, WHEN LIABLE FOR PARTNERSHIP DEBTS: See note to McCulloch v. Dashiell, 18 Am. Dec. 280. The principal case was followed in Fern v. Cushing, 4 Cush. 358; Stevens v. Perry, 113 Mass. 381, and Straus v. Kerngood, 21 Gratt. 590, and cited in support of the following points: Partnership creditors have a prior right to partnership property: Lewis v. Webber, 116 Mass. 455; Irby v. Graham, 46 Miss. 434; Washburn v. Bank of Bellows Falls, 19 Vt. 286; Cropper v. Coburn, 2 Curt. 470; Cleghorn v. Insurance Bank, 9 Ga. 325; creditors can levy on the goods of any of the partners: Kirby v. Schoonmaker, 3 Barb. Ch. 50; the sheriff may seize, under execution, the interest of the defendant, and the purchaser at the sale becomes tenant in common with the other partner: Leonard v. Scarborough, 2 Ga. 77; equity regards a partner's real interest in the firm to be his share of the surplus, after the debts of the firm are paid, and a final balance ascertained, and allows each partner a lien on the funds for his share of the surplus, as well as for his indemnity against the joint debts: Matlock v. Matlock, 5 Ind. 407.

In Morris v. Morris, 4 Gratt. 311, Daniels, J., commenting on the principal case, says, that the rule of that case has not been adopted in actions at law.

SIGOURNEY v. SIBLEY.

[22 PICKERING, 507.]

JUDGE OF PROBATE, WHO IS INTERESTED IN AN ESTATE, HAS NO JURISDICTION to appoint a special administrator therefor, and an appointment so made is void.

APPEAL from a decree in probate appointing a special administrator for the estate of one Sigourney, deceased, on the ground that the judge was interested in the estate.

Washburn, for the appellants.

Merrick, for the appellees.

By Court, MORTON, J. Under the statute of 1817, c. 190, sec. 5, this court decided that a judge of probate, having a claim against a person at his decease, was interested in his estate, had no jurisdiction over it, and could not grant administration or do any other official act in relation to the settlement of it: Cottle, Appellant, 5 Pick. 483. Such proceedings are a perfect nullity: Coffin v. Cottle, 9 Id. 287. The fifteenth section of the eightythird chapter of the revised statutes, is a mere revision of the section above cited, and in another branch of this case has received the same construction: Sigourney et al. v. Sibley et al., 21 Id. 101.

The jurisdiction over an estate in which the judge of probate is interested, belongs" to the probate court of the most ancient adjoining county," and the matter should be there disposed of and settled in the same manner, as if it had originally occurred within the latter county." The interested judge of probate has no more authority over the estate, or any case growing out of it, than he would have if it was in any other county in the commonwealth: Rev. Stat. c. 83, sec. 15. It had for a long time been seen with regret, that protracted litigations frequently grew out of the probate of wills and the granting of administrations, and that the estates of deceased persons were exposed to great waste and losses, for the want of some authorized agent to collect the debts and preserve the assets, during the pendency of such litigations. To remedy these evils, the legislature provided for the appointment of "special administrators," to continue in office until regular executors or administrators should be qualified to act. And to meet all the exigencies of the case, they were authorized to proceed in the discharge of the duties of their trust, notwithstanding the decree appointing them should be appealed from: Rev. Stat., c. 64, secs. 6, 7, 8, 9, 10.

Special administrators are to be appointed by "the judge of probate." But it must be by the judge of probate who has jurisdiction. No other can have any authority. The statuto does not expressly, nor by implication, confer the power upon any other officer. And there is not only an inherent impropriety in a judge's deciding questions or passing decrees in which he has an interest; but there would be great practical inconvenience in having the same estate settled in different counties and by different courts, in having the inventory in ons