A merchant who owed debts upon his own private account and was
also a partner in two commercial houses which owed debts upon
partnership account executed a deed of trust containing the
following provisions,
viz.:
It recited a relinquishment of dower by his wife in property
previously sold and in the property then conveyed, and also a debt
due to the daughter of the grantor, which was still unpaid, and
then proceeded to declare that he was indebted to divers other
persons residing in different parts of the United States, the names
of whom he was then unable to specify particularly, and that the
trustee should remit from time to time to Alexander Neill, of the
first moneys arising from sales, until he shall have remitted the
sum of $15,000, to be paid by the said Neill to the creditors of
the said grantor, whose demands shall then have been ascertained,
and if such demands shall exceed the sum of $15,000, then to be
divided amongst such creditors
pari passu, and out of
further remittances there was to be paid the sum of $ 12,000 to his
wife as a compensation for her relinquishment of dower, and next
the debt due to his daughter, and after that the moneys arising
from further sales were to be applied to the payment of all the
creditors of the grantor whose demands shall then have been
ascertained. In case of a surplus, it was to revert to the
grantor.
The construction of this deed must be that the grantor intended
to provide for his private creditors only out of this fund, leaving
the partnership creditors to be paid out of the partnership
funds.
Under the deed, it was the duty of the trustee to divide the
first $15,000 amongst the private creditors of the grantor and
exclude from all participation therein the creditors of the two
commercial houses with which the grantor was connected; next to pay
the debts due to the wife and daughter; then to pay in full the
private creditors, or divide the amount amongst them,
proportionally.
The rule is that partnership creditors shall, in the first
instance, be satisfied from the partnership estate. and separate or
private creditors of the individual partners from the separate and
private estate of the partners with whom they have made private and
individual contracts, and that the private and individual property
of the partners shall not be applied in extinguishment of
partnership debts, until the separate and individual creditors of
the respective partners shall be paid.
The American and English cases respecting this rule
examined.
On the 24th of September, 1839, Luke Tiernan, of the City of
Baltimore, and Anne, his wife, made a deed of trust to Charles H.
Carroll, of Livingston County, New York, thereby conveying to said
Carroll about 5,888 acres of land, part of Tuscarora Tract in said
Livingston County, of which Luke Tiernan was seized in fee simple
as his individual property. The property so conveyed is in said
deed estimated to be worth about $120,000
Page 49 U. S. 415
The deed, among other things, recites that Anne, the wife of
Luke, had previously joined in a conveyance of various portions of
said tract, the property of said Luke, which before that time had
been sold, without receiving for her separate use any consideration
therefor.
It also recites that said Luke was indebted to Anne E. Brien, at
the time of her death, in the sum of $4,450, which on her death
became due to Luke Tiernan Brien, her only child and heir at
law.
It also recites that said Luke
"is indebted to divers other persons, residing in different
parts of the United States of America, in a large amount of money
in the aggregate, but the names of all the persons to whom he is so
indebted, and the amount due to each respectively, the said Luke
Tiernan is now unable to specify particularly."
The deed then conveys said land to said Carroll in trust, to
sell and convey the same in the manner therein specified, and after
paying expenses, including a commission for his services, to remit
the net proceeds of the first moneys arising from the sales in bank
checks or drafts to Alexander Neill of Maryland
"until he shall have remitted the sum of $15,000, to be paid by
the said Alexander Neill to the creditors of the said Luke Tiernan,
whose demands shall then have been ascertained, and if the demands
so ascertained shall exceed the said sum of $15,000, the same shall
be applied in part payment of each of said demands, in the ratio
that each of said demands respectively shall bear to the whole sum
to be so applied."
After said sum of $15,000 shall have been remitted, then the sum
of $12,000 is to be remitted by said Carroll to such person as said
Anne Tiernan may designate, which is to be invested for the sole
and separate use of said Anne, as a compensation to her for
relinquishing her dower in the land by the deed conveyed.
Then the sum of $4,450, with interest from the 1st of January,
1841, is to be remitted by said Carroll in payment of the
above-mentioned debt due to Luke Tiernan Brien.
"And after the last-mentioned sum shall have been remitted as
aforesaid, all the residue of the moneys arising from such sales
(after deducting the expenses and commissions as aforesaid) shall
be remitted by the said Charles H. Carroll from time to time, as
the same shall be received, to the said Alexander Neill, in the
manner hereinbefore provided for the remission of the said sum of
$15,000, and the same shall be applied by the said Alexander Neill
to the payment of the debts due from the said Luke Tiernan to all
the creditors of the said Luke, whose
Page 49 U. S. 416
demands shall then have been ascertained by the said Alexander
Neill, and in case that the sum so to be applied shall be
insufficient for the payment of all such demands, then and in this
case the same shall be applied in part payment of each of said
demands, in the ratio that each of said demands respectively shall
bear to the whole sum to be so applied to that object, and in case
the said sum shall be more than equal to the payment of such
demands, then and in that case the residue thereof shall be paid by
the said Alexander Neill to the said Luke Tiernan, his heirs,
executors, administrators, or assigns."
The said Carroll, in pursuance of said deed, proceeded to make
sale of various parts of the property thereby conveyed, and from
time to time, from 1 March, 1841, to 22 April, 1844, remitted to
said Neill, in various amounts, the whole sum of $15,000 provided
to be paid in the first place to said Neill out of the net proceeds
of sales as above mentioned. This sum increased in the hands of
Neill, by interest and premiums on the drafts in which it was
remitted, to $16,440.55.
Luke Tiernan was a partner in the commercial firm of Luke
Tiernan & Son, of Baltimore, the only other partner therein
being his son Charles Tiernan. This firm was dissolved previously
to the death of Luke Tiernan, which occurred on 9 November, 1839,
and after his death it was conducted under the same name by Charles
Tiernan.
Luke Tiernan was also a partner in the commercial firms of Luke
& Charles Tiernan, and Tiernan, Cuddy & Co., of New
Orleans. The partners of the first-named firm were Luke and Charles
Tiernan, and of the second, Luke Tiernan, Charles Tiernan, Calvin
Tate, and James McG. Cuddy.
The firm of Tiernan, Cuddy & Co., failed in December, 1835,
for a large sum of money. Charles Tiernan was the liquidating
partner thereof, and was engaged from April, 1836, to May, 1842, in
collecting the assets of the firm. He collected about $100,000, the
whole of which, and a good deal more, he paid in satisfaction of
the debts of the firm. Calvin Tate, one of the partners, applied
for the benefit of the bankrupt law of the United States on the
18th of February, 1842, and obtained his discharge under said
application. The amount of debts returned by him as due by Tiernan,
Cuddy & Co. was $569,069.49, and the amount as due to said firm
was $800,743.47.
On 29 May, 1845, the executors of Luke Tiernan, on an account
then passed by them with the Orphans' Court of Baltimore County,
had in hand a balance in cash to the amount of $506.91. They
conjecture that with this balance, debts may be collected and other
assets may be realized, including
Page 49 U. S. 417
the entire real and personal property of said Luke to the amount
in all of about $30,000. None of this amount, however, so far as
appears, was ever collected, except said sum of $506.91, and the
entire estimate is merely conjectural.
The individual debts of Luke Tiernan, as proved and allowed in
this case, amount to $31,586.25.
The partnership debts of all the firms in which Luke Tiernan was
concerned as partner, as approved in this case, amount to
$295,025.74.
In October, 1843, John D. Murrill, a citizen of the State of
Virginia, and the Bank of New Orleans, filed their bill in equity
against Mr. Neill, claiming from him an account of his trust under
the deed now described, and a distribution of any fund in his hands
among the creditors of Mr. Tiernan. The bill was amended by making
William T. Somerville a defendant, as executor, along with Mr.
Neill, of Luke Tiernan.
The answer of Neill admits the receipt under the deed of
$15,000, increased by interest from investment to $16,440.55, and
this sum he asks may be distributed among the creditors of Mr.
Tiernan who may under the trust have right to it. Testimony was
taken to show the insolvency and the debts and assets of the
partnership in New Orleans, and of Luke Tiernan. The separate
estate of the latter in Maryland is shown to have been
administered, leaving only $506 in the hands of the executors, and
some good debts to be collected, and some unsalable stocks.
The court passed an order for notifying creditors of Luke
Tiernan to file their claims, and under it a number of claims have
been presented, partnership and individual, against Luke Tiernan.
The individual amount to $31,586.25, the partnership to
$295,025.74.
The matters being referred to an auditor to report an account
upon the claims, he stated two accounts, one applying the fund to
payment of only the individual creditors, the other to payment of
them and of the partnership creditors
pari passu.
Upon exceptions taken, the court determined that the individual
creditors were to be preferred, and the funds of the trust should
go to their satisfaction before any payments should be made to the
partnership creditors.
The trustee was therefore directed to proceed to distribute and
pay over the funds accordingly. From this decree the complainants
appealed to this Court.
Page 49 U. S. 421
MR. JUSTICE DANIEL delivered the opinion of the Court.
The original bill in this case having been framed upon a
palpable misapprehension of the position of the parties and of the
facts connected with and entering into their rights or their
obligations, reference to that bill beyond this remark is deemed
unnecessary. The object of the amended bill filed by the
complainants on behalf of themselves and others, creditors of the
mercantile houses of Luke Tiernan and Charles Tiernan of Baltimore,
and of Tiernan, Cuddy & Co., of New Orleans, is to procure an
appropriation to those creditors of the sum of $15,000, remaining
in the hands of the defendant Alexander Neill and derived to him
from Charles H. Carroll, the trustee in the deed from Luke Tiernan,
filed as an exhibit with the answer of Neill in this cause. This
controversy depends first upon the construction of those clauses of
the deed above mentioned, which direct the payment by the trustee
to Alexander Neill, and the application by the latter of the sum so
paid, and secondly upon the operation of the rules of law, as
controlling such application in reference to the rights of the
separate creditors of Luke Tiernan, and of the joint creditors of
the firms of Luke & Charles Tiernan, and of Tiernan, Cuddy
& Co.
In other words, whether the separate creditors of Luke Tiernan
have a prior right of satisfaction from the subject of the trust
constituting the separate private estate of said Tiernan, or have
the right to claim against that separate estate
pari passu
only with the several creditors of the mercantile houses of which
Luke Tiernan was a partner. The facts of this case are few and
simple, and are scarcely in any respect controverted; the cause
turns, as has already been remarked, upon the construction of the
deed and upon the rules of equity as applicable to the position of
the grantor in relation to the different classes of his creditors
at the period of its execution. The language of the deed, as
indicative of the intention of the grantor, will in the first place
be adverted to. And in considering this language it may be remarked
that it nowhere speaks of debts due from Luke Tiernan as a member
of the firms of Luke & Charles Tiernan, or of Tiernan, Cuddy
& Co., nor mentions
Page 49 U. S. 422
nor alludes to those firms, nor to any other mercantile firms
whatsoever. This deed recites the facts of the relinquishment by
Mrs. Tiernan of her dower right in a large amount of property
previously sold by her husband, and of her consent to a similar
relinquishment in future sales to be made by the trustee, Carroll;
it recites also a debt due from the grantor to Mrs. Anne E. Brien,
deceased, which was still unpaid, and was due and owing to her son,
Luke Tiernan Brien. It then proceeds to declare
"That whereas the said Luke Tiernan is indebted to divers other
persons, residing in different parts of the United States, in a
large sum of money in the aggregate, but the names of all the
persons to whom he is indebted and the amounts due to each
respectively the said Luke Tiernan is now unable to specify
particularly. And whereas the said Luke Tiernan is desirous of
conveying the lands hereinafter described in trust that the same
shall be sold and the proceeds thereof applied in the manner
hereinafter particularly specified."
The deed then, after directing a sale by the trustee, provides
that he shall remit from time to time, as the same shall be
received,
"to Alexander Neill of Maryland, and payable to his order, of
the first moneys arising from such sales, until he shall have
remitted the sum of $15,000, to be paid by the said Alexander Neill
to the creditors of the said Luke Tiernan whose demands shall then
have been ascertained, and if the demands so ascertained shall
exceed the said sum of $15,000, the same shall be applied in part
payment of each of the said demands in the ratio that each of said
demands shall respectively bear to the whole sum $15,000 so to be
applied."
The deed then provides, out of further remittances arising from
sales to be made by the trustee, for the payment of $12,000 to Mrs.
Tiernan in compensation for her right of dower, and next for the
payment of the debt due to the son of Mrs. Anne E. Brien, and then
declares that after the last-mentioned sum (
i.e. the sum
due to Mrs. Brien or to her son) shall have been paid, all the
moneys arising from such sales (after deducting expenses &c.)
shall be remitted by the trustee to the said Neill, and the same
shall be applied by the said Neill to the payment of the debts due
from the said Luke Tiernan to all the creditors of the said Luke
whose demands shall then have been ascertained by the said
Alexander Neill,
"and in case that the sum so to be applied shall be insufficient
for the payment of all such demands, then and in this case the same
shall be applied in part payment of each of said demands in the
ratio that each of said demands respectively shall bear to the
whole sum to be so applied to that object, and in case the said sum
shall be more than equal to the payment of
Page 49 U. S. 423
such demands, then and in that case the residue thereof shall be
paid by the said Alexander Neill to the said Luke Tiernan, his
heirs,"
&c.
We have already adverted to the circumstance that the grantor in
this deed has nowhere alluded to any mercantile concern with which
he was associated; that he was disposing of a subject confessedly
his own separate property; that he has not said that whereas Luke
Tiernan & Son, or Tiernan, Cuddy & Co., but that Luke
Tiernan was indebted to Mrs. Tiernan and to Mrs. Brien and to
divers other persons residing in different quarters of the country.
This would not be the language of a merchant (still less of a
practiced and extensive merchant) when intending to designate the
firm of which he makes a part. On such occasions he never mentions
himself individually unless he intends expressly to distinguish
between himself and his house and would always be so understood by
established mercantile acceptation. And again if, in the
construction of this deed, the name of Luke Tiernan is to be taken
as synonymous with Luke Tiernan & Son and Tiernan, Cuddy &
Co., we should be driven to the conclusion that these several firms
were indebted to Mrs. Tiernan in consideration of her
relinquishment of her dower in her husband's estate, and to Mrs.
Brien for the private debt due to her -- for all these creditors
are grouped in the same category. Their claims originate in the
same source -- in the obligations of Luke Tiernan. The language of
the deed is that Luke Tiernan is indebted to Mrs. Tiernan and to
Mrs. Brien, and the same Luke Tiernan it is who is also indebted to
divers other persons residing in different parts of the United
States. Such a construction of the deed involves, we think, a
violation of the plain meaning of the terms of the instrument and
leads to confusion and absurdity.
It has been insisted for the appellants in this case that the
admission by the grantor of a large amount of claims against him of
the diversity of the residence of his creditors and of the
inability on his part at once to designate those creditors and
their demands should be received as proof that the deed was never
intended to be limited to the private creditors of the grantor,
who, it is contended, must, as well as the extent of their claims,
have been known, but was designed to embrace all his partnership
liabilities. We have just stated that such an interpretation of the
deed is inconsistent with the meaning of its language. But if we
look beyond the deed to the position of the parties at the time of
its execution, is there any probability arising from that position
which can justify the conclusions
Page 49 U. S. 424
urged in this respect for the appellants? The grantor in this
deed appears to have been at one time the possessor of great
wealth; the deed made an exhibit in this case shows that he was the
possessor of an unusual extent of property. It is almost certain,
too, from the character and situation of the subject of this
conveyance as well as from other circumstances disclosed by the
record that its owner must have been the proprietor of many other
constituents of a large estate, both within and without the city
and state of his residence. That a man thus situated should
necessarily be engaged in a variety of transactions; should employ
numerous agents; that many of his transactions, both as to persons
and contracts, should be conducted by agents; that his knowledge
with respect to persons and undertakings should in their detail be
dependent on information to be derived from agents thus employed --
are circumstances, in our view, falling within the range of daily
experience, and such as not only may explain the language of an
instrument intended to embrace the transactions of one so situated,
but which in fact render such language proper in order to bring it
within the bounds of experience and truth.
The daily habits of one so situated must imply to some extent an
ignorance of the precise detail of all that may be consequent upon
them. We think it natural -- nay, with a due regard to truth,
inevitable -- that one so situated, if called upon on an emergency,
should admit his inability to enumerate all that he had done -- all
that he had authorized to be done through others, and every
consequence which might flow from the one or the other. The
language of Mr. Tiernan we consider, therefore, as not more
comprehensive than was appropriate to embrace his private
liabilities. The debts due to his wife and to Mrs. Brien were
strictly domestic obligations, necessarily within his knowledge;
were regarded as of a peculiarly sacred character; and therefore
were provided for, exempt from the contingency of an ultimate
insufficiency of funds. But even these claims, however sacred they
may have been deemed, were not permitted absolutely to precede a
contribution at least to other creditors whose condition might be
known, but they have been postponed to these
pro tanto.
The language of that portion of the deed which, after the payment
directed to be made to Mrs. Tiernan and to Luke Tiernan Brien and
after distribution of the first fifteen thousand dollars received
from the trustee, directs the application of the subsequent
proceeds of the trust subject to all the creditors of the grantor
then ascertained, and, in the event of a surplus, the payment of
that surplus to the grantor, has been earnestly pressed on our
attention. It has been argued upon
Page 49 U. S. 425
this provision of the deed, either that it is expressive of the
intention of Luke Tiernan to let in all his creditors, social as
well as individual, or that it is fraudulent, as interposing a
hindrance on one or the other class, or on both the classes of his
creditors, by an attempt to retain the proceeds of the land, in
opposition to their rights.
We cannot yield to this argument the ends it was designed to
accomplish. We think that the terms of this latter provision, so
far from enlarging the meaning of the former, so as to let in upon
the trust subject the creditors of the firms before mentioned, tend
rather to strengthen the limit presented by the former provision
when standing alone. For although the distribution of the money to
be received by Neill is to be made amongst all the creditors, they
are still the creditors of the said Luke Tiernan before spoken of,
and the creditors of no other person. This mode of expression,
coming from an individual practiced in the habits and language of
merchants, we regard as a confirmation of the intention previously
expressed, rather than as proof of a departure from that
intention.
Next, as to any evidence of fraud resulting from the direction
to pay over to the grantor in the deed any surplus which might
remain after satisfying the separate creditors, we can perceive no
proof of fraud, no attempt to hinder or delay the creditors in this
direction. Nothing is more probable than that Luke Tiernan might
have considered the effects of Luke Tiernan & Son and of
Tiernan, Cuddy & Co., represented to be of a large amount, as
adequate to meet the joint responsibilities of those firms, or at
any rate he might have insisted upon his right to refer the
partnership creditors to the partnership funds in the first
instance, and until these should be shown to be insufficient to
retain possession of his separate private estate. The argument then
appears to be defective in either aspect in which it is
applied.
The second principal position assumed for the appellant is this
-- that, conceding the fifteen thousand dollars in controversy to
have been ever so clearly appropriated by Luke Tiernan to his
separate creditors, still, under principles of equity, such an
appropriation cannot be maintained, but that those principles
authorize the partnership creditors of Tiernan & Son, and of
Tiernan, Cuddy & Co., to charge that fund
pari passu
with the separate creditors of said Tiernan.
The rule in equity governing the administration of insolvent
partnerships is one of familiar acceptation and practice; it is one
which will be found to have been in practice in this country from
the beginning of our judicial history, and to have been generally,
if not universally, received. This rule,
Page 49 U. S. 426
with one or two eccentric variations in the English practice
which may be noted hereafter, is believed to be identical with that
prevailing in England, and is this:
That partnership creditors shall in the first instance be
satisfied from the partnership estate, and separate or private
creditors of the individual partners from the separate and private
estate of the partners with whom they have made private and
individual contracts, and that the private and individual property
of the partners shall not be applied in extinguishment of
partnership debts until the separate and individual creditors of
the respective partners shall be paid. The reason and foundation of
this rule or its equality and fairness the Court is not called on
to justify. Were these less obvious than they are, it were enough
to show the early adoption and general prevalence of this rule, to
stay the hand of innovation at this day -- at least under any
motive less strong than the most urgent propriety.
This rule may be traced back in England, with certainty, to the
cases of
Ex Parte Crowder in 2 Vern. 706 (in 1715), and of
Ex Parte Cook, 2 P.Wms., 500 (in 1728), nearly a century
and a half since. It was affirmed by Lord Hardwicke in
Ex Parte
Hunter in 1 Atk. 228 (in 1742), and continued unchanged until
the year 1785, when a material innovation was made upon it by Lord
Thurlow in the case of
Ex Parte Hodgson, 2 Bro.Ch. 5. By
the decision last mentioned, the established practice then of sixty
years was so changed, and the distinction between joint and
separate creditors so broken up, that the former were permitted to
come in and to receive dividends
pari passu with the
latter from the separate estate.
This change led to the practice of filing a bill on behalf of
the separate creditors to restrain the order in bankruptcy whenever
there was a joint estate, and by this means the rights of the joint
and separate creditors on their respective funds were maintained --
a proceeding which could rest on no other foundation than the
peculiar equities of these different parties with respect to the
funds with which they had been respectively connected. In
consequence of the inconvenience of Lord Thurlow's rule, and of the
injustice it was thought to involve, Lord Loughborough
reestablished the practice that had so long previously existed,
with the single modification of permitting the joint creditors to
prove under a separate commission, but denying to them any right to
dividends until after the separate creditors were satisfied. The
reasoning of his Lordship, as going to show that his decision is
founded in pure principles of equity, is peculiarly forcible.
Speaking of the rule of Lord Thurlow, he says
"The difficulty that has struck me upon
Page 49 U. S. 427
it is that what I order here sitting in bankruptcy I shall
forbid tomorrow sitting in chancery, for it is quite
of
course to stop the dividend upon a bill filed. The plain rule
of distribution is that each estate shall bear its own debts. The
equity is so plain that it is of course upon a bill filed. The
object of the commission is to distribute the effects with the
least expense. Every order I make to prove a joint debt on a
separate estate must produce a bill in equity. It is not
fundamentally a
just distribution nor a convenient
distribution. Every creditor of the partnership would come upon the
separate estate. The consequence would be the assignees of the
separate estate must file a bill to restrain the dividend upon all
these proofs, and make the partners parties. But there is another
circumstance. It is a contrivance to throw this upon the separate
estate."
Again, his Lordship says
"It is not stated as a case where there are no joint funds. Here
it is only that there are two funds. Their proper fund is the joint
estate, and they must get all they can from that first. I have no
difficulty in ordering them to be permitted to prove, but not to
receive a dividend."
This doctrine of Lord Loughborough, deduced, as he tells us, not
less from fundamental principles of equity than from convenience in
the administration of bankrupts' estates, appears to have been
followed in England ever since. The numerous cases chiefly before
Lord Eldon going to sustain this position would, if quoted,
unnecessarily encumber our opinion; they are collected in note 1 to
the
Case of Elton, Ex parte, 3 Vesey by Sumner 242. It may
be proper in this place to mention the two departures permitted by
the Court of Chancery in England from the general rule pursued by
that court, which departures were adverted to in a previous part of
this opinion. The first is presented in the instance in which the
petitioning creditor, though a joint creditor, is
permitted to charge the separate effects
pari passu with
the separate creditors because, as it is said, his petition, being
prior in time, is in the nature of an execution in behalf of
himself and the separate creditors. The second is that in which
there are no joint effects at all. In this last instance it is said
that the joint creditors may come in for dividends
pari
passu on the separate effects, though if there be joint
effects, though of the smallest possible amount, this privilege
would not be allowed. These exceptions it seems difficult to
reconcile with the reason or equity on which the general rule is
founded; they are but exceptions, however, and cannot impair that
rule. They do not, for aught we have seen, appear to have been
recognized by the courts of this country. The case of
Tucker v. Oxley,
5
Page 49 U. S. 428
Cranch 34, was a case at law, and the court in that case, whilst
they admitted the joint creditors to prove and to receive dividends
against the separate estate, explicitly recognized the authority of
Ex Parte Elton, and the power and the duty of a court of
chancery, upon application thereto, to prevent the diversion of the
separate fund. The latter exception above referred to was
considered by the Court of Appeals of Maryland in the case of
McCulloh v. Dashiell, 1 Harr. & G. 97, and by that
court expressly repudiated.
The doctrine upon this question of distribution, as illustrated
both in the English and American decisions, will be found to be
ably treated in the case of
Murray v. Murray, 5 Johns.Ch.
72
et seq.; and by Archer, Justice, in the case of
McCulloh v. Dashiell, 1 Harr. & G. 99 to 107, and the
authorities, both English and American, are collated in a learned
note in the third volume of Kent Commentaries beginning on 65 of
that volume.
The proper conclusion from these authorities we deem to be this,
as is stated also by Justice Story in his treatise on Partnership
376, where he say
"It is a general rule that the joint debts are primarily payable
out of the joint effects, and are entitled to a preference over
separate debts of the bankrupt, and so, in the converse case, the
separate debts are primarily payable out of the separate effects,
and possess a like preference, and the surplus, only after
satisfying such priorities, can be reached by the other class of
creditors."
Upon a full consideration of this cause, we are of the opinion
that, upon either ground of objection urged to the decree of the
circuit court, that decree should be
Affirmed, and it is hereby accordingly affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Maryland and was argued by counsel. On consideration whereof it is
now here ordered, adjudged, and decreed by this Court that the
decree of the said circuit court in this cause be and the same is
hereby affirmed with costs.
