This is a suit in equity for the enforcement of the trust of an assignment made by one James K. Gormley to the defendant for the equal benefit of Gormley's creditors. The assignment is dated May 15, 1884. The answer sets up that before the assignment Gormley was a copartner carrying on business with one Charles Burrows, and that on January 1, 1883, Gormley bought out Burrows and assumed all the copartnership debts; that at that time the copartnership was owing a large amount of money to different creditors; that these creditors presented their claims for payment under the assignment; that the complainants object to the payment of them. The *Page 422 answer also states that Burrows is insolvent, and prays for instructions whether the copartnership creditors are entitled to participate in the distribution of the assigned property.
We think that they are entitled to participate. There is some conflict of decision upon the question whether such creditors are entitled to come upon the individual property where there are copartnership funds, but it is generally conceded that where there are no copartnership funds, and no solvent partner, the joint creditors may come upon the separate estate pro rata with the separate creditors. Ex parte Hayden, 1 Bro. Ch. 454;Brock v. Bateman,