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son of the fiction of tenure and estates, and all the resulting doctrine of uses, and give to the law of realty the simplicity of that of personalty. Let us hope that when the threatened reform of our land laws is taken in hand, the alterations and amendments to be made will be comprehensive and complete, and be a final settlement of the protracted question of the amendment of our real property law. It is hardly necessary to add that the views thus advanced are those of an individual member of our society only, and that the council over which I have the honor to preside for the year are in no way party or privy to their expression."
It is not often that such a combination of frankness and ignorance is found as is exhibited by one of the Californian codifiers, according to a statement given in the last number of the American Law Review, copied from a California newspaper published a number of years ago. The account is as follows, and relates to some alleged mistake or defect in the Code: "The codifier-who appears from his letter to be a much more sensible man than one would think (judging only from the codes) wrote that it was a bad thing, and that he didn't see what was to be done about it, but that the commission was not responsible for it; that all they had done was to copy the code of that eminent codifier, Mr. David Dudley Field; that it was evidently the intention of the Legislature that the commission should pursue this course, for if they had wanted a new code made they certainly should have known better than to refer the matter to them; that
it couldn't be expected that a commission of three
men, without any special training or experience for the purpose, could complete in two years a work for which Justinian had found it necessary to employ the great Tribonian, and seventeen other of the most eminent lawyers in the Empire during many years; a work of such transcendent difficulty that the greatest of English jurisprudents, Austin, had thought it necessary to recommend that a large number of the ablest men should be especially educated for it, and should devote their whole lives to
it; a work, finally, so extensive that it had taken even Mr. David Dudley Field some time to accomplish it. As for himself, he said he never had pretended to be much of a codifier, but the position was offered to him with a good salary, and he didn't feel called upon to decline it; that he made it a rule never to decline any thing that was offered on account of his own incompetency - that being a matter that concerned only those who employed him; that if any one were to offer to employ him to make a piano or a steam engine which was as much out of his line as codifying itself - he would accept the offer, provided always that it was on a salary, and that he was not to be paid by the job; that in his opinion the other commissioners were no better than himself, and finally that the whole commission reminded him very forcibly of Pantagruel's opinion of the French lawyers, which he quoted as
follows: 'Seeing that the law is excerpted out of the very middle of moral and natural philosophy, how should these fools have understood it, who par Dieu, have studied less in philosophy than my mule." This is really delicious. The New York codifiers, we believe, never received any compensation, except on one occasion a small sum to reimburse their expenses for clerk hire, travel, etc.
"Our only Sherwood," J., is humping up his back, of late. In a case in 86 Missouri, he says: "Called upon as one of the judges of this court to say whether I concur in the foregoing opinion, I say I dissent, and I say so for these reasons. "What did this court do? Did it continue to wallow in the slough of flagrant misapprehension into which it had fallen? Nay, verily." "Is it right to punish the vigilant and reward the negligent? Queer law and justice that." The italics are the judge's. This was at April term, 1885, long before the thermometer marked 110° in the shade at St. Louis.
Another vacancy on the bench of the third judicial district of our State has been made by the death of Justice Osborn. This was an event not
unexpected, for he has long been a great sufferer from an incurable disease. For several years he has been unable to do the work which should have fallen to him, and the legal business of the district has been seriously delayed in consequence. Justice Osborne was a fairly good lawyer, of a bright and quick mind, of very courteous and dignified manners, unquestionable uprightness and fairness, and a remarkable kindness and considerateness. His
personal qualities were so winning that the lawyers personal qualities were so winning that the lawyers of the district have submitted with patience to the very serious obstruction to business caused by his hope for recovery, and occasional respites have long feebleness. He however has hoped against seemed to warrant his expectations. But he is now tle a spirit as his deserves the good words and tenat rest from all his sufferings, and so kind and gender thoughts of all who knew him. The writer of him, in which he said: "No one has ever had a these lines once received a letter of sympathy from stormier sea to navigate than I, and from experience I can vouch for the truth of the old adage, 'It is always darkest just before day.'" We hope and bor where it is ever light. He was but fifty-one believe that he has now sailed into a peaceful haryears old too young to die, but not too young to have earned love for his gentle and manly qualities, and respect for the gallant fight he made against
temptation and suffering.
NOTES OF CASES.
N State v. White, New Hampshire Supreme Court, July 30, 1886, it was held that it is no defense to a complaint for beating a drum within the compact part of a town, that it was done in the per
formance of religious worship, and caused no actual disturbance of the public peace. The court said: "This statute, like sections 7, 10 and 14 of the same chapter, against obstructing streets and sidewalks, and prohibiting fast driving in any street within the compact part of a town, is de- | signed for the security of the public convenience, safety and tranquillity. As it would be no defense to a complaint for a violation of the statute against incumbering streets, or for fast driving, to show that there was nobody else in the street at the time, and therefore no actual danger of obstruction or collision, so it would be no defense to show that no actual disturbance of the peace or of the religious worship of others resulted from the violation of the statute by the respondents. The act complained of being expressly prohibited by the statute for the prevention of disturbance of the public peace and tranquillity, an actual disturbance is not necessary to complete the offense. State v. Cate, 58 N. H. 240. To constitute the offense charged no other intent or consequence is required than the intentional doing of the act which the statute prohibits. 1 Bish. Crim. Law, 428. Nor is it a legal justification that the act was done in the performance of religious services, in accordance with the religious belief of the respondents. To recognize such a defense would be to make the professed religious belief and practices of the respondents superior to the statute. Reynolds v. United States, 98 U. S. 145. It is contended that the statute is in conflict with article 5 of the bill of rights, and that it is an unauthorized invasion of the rights of conscience and religious freedom secured by the Constitution, * *By this provision unlimited freedom of conscience and religious belief and profession is secured to every person, but it affords no justification for acts or practices in religious services which disturb the public peace, or disturb others in their religious worship; and a statute prohibiting acts having a tendency to endanger the public peace, or to distract the attention and interrupt the quiet of others, is not in conflict with this constitutional provision, although the prohibited acts may form a part of the services of religious worship. Religious liberty as recognized and secured by the Constitution does not mean a license to engage in acts having a tendency to disturb the public peace under the form of religious worship, nor does it include the right to disregard those regulations which the Legislature has deemed reasonably necessary for the security of public order. A reasonable measure of prevention to avoid disturbance is not an infringement of constitutional rights. The police power of the State extends to the protection of the lives, health, comfort and quiet of all persons, and the protection of all property within the State; and persons and property are subjected to such restraints and burdens as are reasonably necessary to secure the general comfort, health and prosperity. The State has authority to make regulations as to the time, mode and circumstances under which parties shall assert, enjoy or exercise their
* * *
rights, without coming in conflict with any of those constitutional principles which are established for the protection of private rights and private property. Cooley Const. Lim. 596; Commonwealth v. Davis, 140 Mass. 485; State v. Freeman, 38 N. H. 426.”
Another case, interesting to the legal ladies who read this periodical every week, is Laton v. Balcom, New Hampshire Supreme Court, July 29, 1886, holding that the husband of a woman owning a mortgage on real estate cannot acquire title, as against his wife, by a purchase of the premises at a tax sale. Blodgett, J., uttered the following admirable sentiments: "The obligations and duties of husbands and wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the other's property by a clandestine payment of taxes. Such a seizure of each other's estate, alike inequitable and shocking to the moral sense, is believed to be unsupported by any adjudged case, and would be a palpable violation of the marital contract, which, from its very nature, creates a mutual right of faith in the constant regard of each for the interests and welfare of the other. In this respect husband and wife are still a legal unit; for while the legislation on which the defendant relies has greatly enlarged the property and civil rights of the wife, and materially diminished the liabilities and the powers of the husband, it has proceeded on the ground of equal rights of personal liberty and of ownership and control of property, and not on the ground of dissolving or in any degree impairing the relations of trust and confidence which marriage presupposes, and which are made by the marital contract an essential part of the marital relation. In the progress of society juster notions of the nature of the marriage contract have obtained, and accordingly the theory of servitude formerly attached to the status of the wife has been superseded by the theory of equality. Her legal existence is now recognized. She may hold property, earned, purchased, inherited or devised for her own benefit. She may contract and sue and be sued in her own behalf. Her civil rights are no longer subject to her husband's control. She may exercise the right of suffrage in educational matters, and be elected to any school office. But there is nothing in the series of statutes by which her rights and privileges have gradually approximated an equality with those of her husband that abrogates the marital rights of trust and confidence incident to the relation in all stages of society. On the other hand, the existence and continuance of these relations is recognized and enforced in the statute rendering husband and wife competent witnesses for and against each other, by expressly excluding them when their testimony 'would lead to a violation of marital confidence.' Gen. Laws. chap. 228, §§ 20, 21; Clements v. Marston, 52 N. H. 31. And the progress of common law has been in the same direction, in accordance with the advance of popu
lar intelligence by which it has been moulded. The obligations, the liabilities, and the privileges inherently consequent upon the marriage upon the marriage union remain unchanged. The contract, stipulatory or consensual, still is, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish.' And although 'they two are no longer one, and he that one,' in respect to property, they still have interests, direct and indirect, in each other's estates, and these interests, like those of partners and tenants in common, are sufficient to prohibit such an adverse resort to a tax title by either, as in the fair understanding of both would be a breach of marital faith. But apart from mutual interests of property, which are of but secondary importance, such a breach of faith is a legally impossible destruction of that relation of trust established by the marriage, and which society has even more interest in preserving than the parties themselves. While unjust disabilities of the wife have been removed, there are implied stipulations of the contract which each party remains justly disabled to violate."
In Shamp v. Meyer, Nebraska Supreme Court, October 7, 1886, it was held that where one makes a promise to another for the benefit of a third person, such third person can maintain an action upon the promise though the consideration does not move directly from him. Maxwell, C. J., said: "If the allegations of the petition are true, Meyer assumed the payment of the obligations of the firm of Nohring & Meyer, one of which was the payment of the debts which the plaintiff afterward was com
pelled to pay. Can he maintain an action against Meyer on this contract to which he was not a party, but which contains a provision for his benefit? This question was before the Supreme Court of Nevada in Miliani v. Tognini, 7 Pac. Rep. 279, and it was held that a party may maintain an action on a simple contract to which he was not a party, upon which he was not consulted, and to which he did not assent, when it contains a provision for his benefit. In Lawrence v. Fox, 20 N. Y. 268, one Holly, in November, 1857, at the request of the defendant, loaned and advanced to him $300, stating at the time that he owed that sum to the plaintiff for money borrowed of him, and had agreed to pay it to him next day; that the defendant, on consideration therefor, at the time of receiving the money, promised to pay it to the plaintiff on the next day. The court held that the plaintiff could maintain an action on the promise. Farley v. Cleveland, 4 Cow. 432; S. C., 9 id. 639; Lawrence v. Fox, 20 N. Y. 268. This principle has been frequently applied in cases of mortgage foreclosure, where it is held that the undertaking of the grantee of the mortgaged premises to pay off the incumbrance is a collateral security obtained by the mortgagor which inures, by an equitable subrogation, to the benefit of the mortgagee. King v. Whitely, 10 Paige, 465; Halsey v. Reed, 9 id. 446; Cumberland v. Codrington, 3
Johns. Ch. 254-261. In Schermerhorn v. Vanderheyden, 1 Johns. 139, it was held that a parol promise from one person to another, for the benefit of a third person, will enable that third person to maintain an action on such promise. This rule was established under the common law, and has been adhered to by the courts of that State. In Cooper v. Foss, 15 Neb. 516, it was held that the purchaser of mortgaged premises, who as the whole or part consideration for such purchase agrees to pay off the mortgage, may be sued, upon default of such payment, by the holder of the mortgage. See also Stewart v. Snelling, 15 Neb. 502; Merriman v. Moore, 90 Penn. St. 80; Carman v. Kelly, 5 Hun, 283. In Merriman v. Moore, it is said: 'It is a rudimental principle that a party may sue on a promise made on a sufficient consideration for his use and benefit, though he made it to another, and not to himself.' Hoff's Appeal, 24 Penn. St. 200; Townsend v. Long, 77 id. 143; Justice v. Tallman, 86 id. 147. In Putney v. Farnham, 27 Wis. 187, it was held that in case of simple contract, where one makes a promise to another for the benefit of a third person, such third person may maintain an action upon the promise, though the consideration does not move from him. This, we think, is a correct statement of the law, and it is decisive of the case, as the petition clearly shows a promise of the defendant made to another for the benefit of the plaintiff."
EQUITY OF PARTNERSHIP CREDITORS. II.
T HIE case of Menagh v. Whitwell, 52 N. Y. 146, will now be considered. In this case five persons were partners. Two sold their interests to one of the other three and retired from the firm. Subsequently two of the remaining three mortgaged their respective interests to secure individual debts, and the third sold his interest to a stranger. A judgment having been recovered against the five partners on an old firm debt, the defendant, under an execution thereon, took possession of the old firm assets, and the action was brought against him for conversion.
Plaintiff claimed a four-fifths interest in the property under the chattel mortgages executed, as already mentioned, to secure individual debts, one of the two partners executing one of the mortgages having a one-fifth interest in the firm property, and the other haying purchased, in addition to his one-fifth, the two-fifths of the two retiring partThe court held that the plaintiff took title subject to old firm debts, and that therefore the property in the possession of the sheriff was subject to levy for such debts. Two opinions were written, one by Judge Rapallo and the other by Judge Allen. The former devotes his attention chiefly to the discussion of the effect of the acts of the three remaining partners, while the latter deals with the transfer of the two retiring partners. Judge Rapallo says, at page 154: "But the point upon which the judgment was sustained in the Supreme Court, was that after the execution of the mortgages, H. E. Goodwin, the only remaining partner, made a separate transfer to a third party of his individual interest in the partnership properties, and on this ground it was held that when the execution was levied none of the defendants in the
changed from interest in the surplus to shares in the corpus of the property free from the debts, their value is doubled, and the fund which should have gone to pay the joint debts is, without any consideration, appropriated by the transferees of the individual interests of the partners."
execution had any leviable interest in the property levied upon; and it was further held that the plaintiff who had purchased the interest of S. G. Pubert under his mortgage was entitled by virtue of two mortgages and at the purchase at the sale under them to recover the value of four-fifths of the corpus of the partnership property levied upon by the defendants without regard to the partnership debts. This position is not without authority in its support." (Neither authority nor principle sustains it.) It is founded upon the theory that separate transfers of the individual interests of all the partners divested the title of the firm; that firm creditors have no lien upon the partnership effects, and no direct right to compel their application to firm debts in preference to individual debts; that the right to compel this application is an equity vested in the partners themselves, and exists only as between each other; that so long as this equity exists in any of the partners, the creditors have an equity to compel its enforcement between the partners, and may by this means obtain the application of the partnership properties to their demands in preference to the individual debts or separate dispositions of any of the partners. In other words, 'that the equities of the creditors can only be worked out through the equities of the partners.' From these premises the conclusions have been drawn that if such equities are waived or released by the partners themselves, the creditors lose them, and that a transfer of the individual interest of a partner in the firm property to a third person extinguishes the equity of the partner, and consequently that of the creditors which is dependent on it. This doctrine has been carried to the extent of holding that if the indi-standing their several pledges and transfers thereof, is vidual interests of each of the members of a firm are successively sold under executions against such members respectively for their individual debts, the purchasers acquire the corpus of the property free from the copartnership debts, and the equities of the partners and partnership creditors are extinguished. Coover's Appeal, 29 Penn. St. 9. The injustice, and it may be said the absurdities, which result from such a view, lead to an inquiry into its correctness. A firm may be perfectly solvent, though the members are individually insolvent; yet in such a case the doctrine that the property of the firm is divested, and the equities of the partners and partnership creditors are extinguished by separate transfers of the individual interests of all the partners, might result not only in an appropriation of all the properties of the firm to the payment of the individual debts to the entire exclusion of the firm creditors, but to a most unjustifiable sacrifice and waste of such properties. For instance, suppose a firm to consist of three members, each having an equal interest, and to be possessed of assets to the amount of $300,000, and to owe debts to half of that amount, the interest of each partner, supposing their accounts between themselves to be even, is $50,000. The members of the firm are individually indebted. One of them sells his share, and receives for it $50,000, which is its actual value; the share of another of the parties is sold out under execution and brings its full value, $50,000. Thus far one partner remains, and he has an equity to have the firm debts paid, and those who have sold out are protected against those debts. The purchasers of the separate interests are entitled to the surplus only. The joint creditors still have their recourse against partnership property, and the right to levy on such of it as is subject to sale on execution. But before any levy the remaining partner sells out his individual interest, or it is sold out on execution. According to the doctrine applied in the present case, and maintained in the case of Coover's Appeal, supra, the firm property is by this last sale relieved from the partnership debts; the two shares first sold are at once
This whole opinion should be carefully read. That this decision is correct cannot be doubted. But it is submitted that the court did not found its decision upon the great substratum principle which underlies this department of jurisprudence. The lien of partnership creditors in this case was not extinguished, because the three remaining partners still retained an interest in the payment of firm creditors out of the old firm assets, after the transfer of the two partners to one of the remaining three, and after the mortgaging and sale by these three partners of their respective interests in the firm property to different parties. Each one of these three partners had an interest in the payment of all firm debts out of firm property in preference to the individual debts of each of the other two; and when they severally mortgaged and sold their respective interests in the firm property they were still interested in the firm creditors' priority of payment out of the partnership property, because none of the persons to whom they severally mortgaged and sold assumed or was in any manner liable for the old firm debts. If such debts were not paid out of the firm property so mortgaged and sold by the parties severally, then the whole weight of them would fall on the partners themselves. Thus their interest in the payment of firm debts out of the firm property, notwith
manifest. The partners then having this deep interest in the satisfaction of the old firm claims out of firm property an interest that was apparent to them at the time of the different transfers, and they having done nothing to divest themselves of their equity, and not having shown an intention to destroy their equitable lien, it must be regarded as still subeisting. In fact so far as the mortgages and the transfer that were severally made by the then partners were concerned, the court recognized the force of this position, that the equity of the partners survived their relinquish. ment of their title to the firm property, the court saying: "But it is claimed that when all the partners have assigned, their interest in the property is divested and their equity is destroyed, and therefore the property is released from the debts, and what was at the time of the assignment a share of a contingent surplus has been converted into a share of the corpus of the property. Is this position sound? When a partner sells his interest in a firm to a person other than his copartner, or it is sold on execution against him, does he thereby lose all equity to have the firm debts paid out of the assets? When he sells to his copartner, he relies upon his assumption of the partnership debts, and unless he stipulates for an application of the assets to that purpose he parts with all lien upon them. But when he sells to a stranger not liable for the debts, or his interest is sold on execution, is not the right to have the debts paid out of the property, a right of indemnity personal to himself, and which does not pass by the sale? Could it be tolerated that the interest of a partner should be sold under execution against him, on which sale only the value of his interest in the surplus could be realized and that the purchaser should be allowed to take the corpus of the property, and leaves him liable for the debts?"
In this case, Judge Allen, discussing the effect on the old firm creditors, of the transfer of the two retiring partners of their two-fifths interest in the firm property to one of the then remaining partners, expresses an opinion that creditors of the new firm composed of the three remaining partners, had there been any,
would have been entitled to preference over creditors of the old firm as to the old firm property which might be undisposed of. He says: "Had the firm, after the change of interest therein, incurred liabilities and contracted debts, a question would have arisen between the creditors of the old and new firms, and the creditors of the new would have been preferred."
This is undoubtedly the law where the retiring partner sells out to all the remaining partners jointly, and not separately to one. Smith v. Howard, 20 How. (U. S.) 121; Baker's Appeal, 21 Penn. St. 76. In both of these cases the retiring partner transferred his interest to the two remaining partners, and the courts sustained assignments made by the new firms of the old firm property, in which creditors of the new firms were preferred. But in Menagh v. Whitwell the retiring partners sold their interest, not to all three of the other partners, but to only one of them. This difference in the facts between this and the other cases does not however call for the ap lication of any different principle.
In Menagh v. Whitwell the creditors of the new firm would have been prevented, although the transfer was to one, and not to all, of the continuing partners, because all the five partners had lost their interest in the payment of old firm debts with old firm property, the two who retired losing their interest by a sale to those who were personally bound to pay such debts, and bound to save those two harmless from such debts and the other three, because being after the transfer, the real debtors as between themselves and all others, and being bound in conscience as well as by the law, to pay them out of any property they might have, ceased to have any interest in their payment out of any particular fund or property. The equity of all five partners being extinguished, the equity of the old firm creditors would be forever gone.
There are dicta and possibly one decision hostile to the decision in Menagh v. Whitwell. The dicta are found in Doner v. Stauffer, 1 Penn. (P. & R.) 198; Coover's Appeal, 29 Penn. St. 9; and the cases of McNutt v. Strayhorn, 39 id. 269; Case v. Beauregard, 99 U. S. 119, seem to be on the same side.
In the last case it appeared that May, Graham and Beauregard had been partners. May and Graham transferred their interest in the firm property to the United States, and subsequently these interests were transferred by the United States to three persons, and thereafter a railroad corporation and these three persons and the remaining partner, Beauregard, executed an act of fusion by which all the rights of the parties became vested in the corporation. The object of the action was, as the court said: "To follow and subject to the payment of a partnership debt property which formerly belonged to the partnership, but which, before the bill was filed, had been transferred to the defendants."
The court, dismissing the bill, said: "The effect of these transfers and the act of fusion was, very clearly, to convert the partnership property into property held in severalty, or at least to terminate the equity of any partner to require the application thereof to the payment of the joint debts. Hence if, as we have seen, the equity of the partnership creditors can be worked out only through the equity of the partners, there was no such equity of the partners, or any one of them, as is now claimed, in 1869, when this bill was filed. No one of the partners could then insist that the property should be applied first to the satisfaction of the joint debts, for his interest in the partnership and its assets had ceased."
This decision will not stand the test of principle. The two partners whose interests were severally sold did not thereby forfeit their equity as partners. They still retained an interest in the payment of partner
ship debts out of firm property, because the transferees were not liable for such debts, and did not assume them. If the transferee could dispose of this property without paying two-thirds of the firm debts out of it, the burden of payment would fall on them. As the equity of these two partners still existed after the transfer, so did the equity of the firm creditors, and if it be argued, as the court did argue, that an unincumbered two-thirds of all the firm property passed by these transfers, then the conclusive answer is, that the firm being insolvent, the transfers of its property to pay individual debts of members of the firm were fraudulent and void. On this point the court said: "The bill, it is true, charges that the several transfers of the partners were illegal and fraudulent without specifying wherein the fraud consisted. The charge seems to be only a legal conclusion from the fact that some of the transfers were made for the payment of the private debts of the assignors. Conceding such to have been the case, it was a fraud upon the other partners, if a fraud at all, rather than upon the joint creditors; a fraud which those partners could waive, and which was subsequently waived by the act of fusion."
The court is at first uncertain whether it is a fraud at all for a partner to pay his individual debt with property of an insolvent firm, and finally declares the fraud, if any, to be a fraud upon the other partners merely. No principle would seem at first thought to be better settled than the one which sets the seal of its condemnation on every such transfer and declares it fraudulent and void as to the firm creditors. Menagh v. Whitwell, 52 N. Y. 146, 162; Wilson v. Robertson, 21 id. 587; Ranson v. Van Deventer, 41 Barb. 307; Phelps v. McNeely, 66 Mo. 554; Lemley v. Johnson, 43 N. H.
And yet there are cases which hold that individual debts may be paid with firm property, although the firm is insolvent, provided of course all the partners assent to the transaction. Marks v. Hill, 15 Gratt. 400; Schmidplapp v. Currie, Miss. Sup. Ct. (18 Am. Law Reg. 108), 55 Miss. 597. See also Hopgood v. Cromwell, 48 Ill. 64.
Indeed in Schmidlapp v. Currie the court sustained a transfer by one of two partners with the assent of the other, of all the firm property to pay an individual debt of the partner making the transfer. This transfer of course made the partnership absolutely insolvent, leaving nothing out of which to pay firm debts, and yet the court sustained the transfer as against a firm creditor at the time of the transfer. This is certainly an extreme case, and carries the doctrine that the equities of firm creditors are derivative and dependent to the utmost limit, and yet it is sound on principle. The court intimated that its decision might have been different if the firm had been insolvent. But it is impossible to see how insolvency could make any difference, when the transfer to the individual creditor of all the partnership property created an absolute insolvency, leaving no firm property whatever for firm creditors to collect their claims from. This decision is an important one, and it will be worth the while to step aside from the trend of this article to examine it. It appears that H. and U. were partners. H. having become indebted to O., transferred to him in part payment of the indebtedness and with the consent of U. the entire business and stock of the partnership. Firm creditors having sued out a writ of attachment against the firm, and caused the same to be levied on the property so transferred, on the ground that the payment of the individual debt of H. with all the partnership property was fraudulent and void as to firm creditors, that question was presented for the decision of the court. The court said: "Is it true that partnership assets cannot by the act or consent of