therefore, is necessary of the expenses and charges belonging to this cotton, and to the recovery of the sum received for it, and of the interest received, if any. Let there be a decree that an account be taken of the charges and expenses chargeable to this cotton, and to the recovery of what was received for it, and of the interest received upon the avails of it, if any, and for the payment of the balance to the orator out of any assets of the estate in the hands of the defendant, with costs.
May 15, 1882.)
Court, N. D. Itlinoi8.
A creditor of a dissolved partnership, being a non-resident of is not compelled to go into the state tribunal for the purpose' of' asserting hili rights, but may proceed directly against the individual representatives of the deceased copartners, or ,any person havipg ,of the 'Copartnership assets, no matter under what right he claims them. He, may proceed at once, in equity, to have the assets marshalled and distributed 'to tlie' c"reditorS.
S. G. Boyce, for complainant. Roberts It Hutchinson, for defendant. BLODGETT, D. J., (orally.) The complainant, wlro is a citizen of tLe state of New York, charges by his bill that from ,February 1, 1878, to December 97,.1879, WilliamR. Gould,Rtld M. Brooks Gould were copartners, doing business in this city, as merchants and dealers in ornamental hardware, under the firm nameofW. R. & M. B. Gould, and ;that dJring such time the complainant sold: and, delivered the firm goods to the value of $5,011.60, .lor whioh"Jhe firm became justly indebted and that $2,511..60 'of lluc;h'indebtedness remains due and wholly unpaid. That on the twenty-seventh day of December, 1879, M.Brooks Gould died intestate in this ci.ty, and that afterwards-that is; on the ,twelfth of January, 1880--4hedefendant Newbury C. Hills waB, by the probate couri, .of Cook county, duly appointed sole administrator of the estate of said M. ;Brooks Gould, and duly accepted and entered upon the duties of his offie.e; that on the fifteenth of June, 1880, said William R. Gould died in"this city. leaving a will, whereby defendallt Amelia Gould was duly. appointed
FISKE V. GOULD.
his sole executrix; that the will has been duly admitted to probate in Cook county, and letters testamentary issued to said Amelia Gould; that at the time of the death of M. B. Gould the firm was possessed of a large amount of partnership assets; that on the appointment of Hills as administrator of M. Brooks Gould 4e took possession of a large part of the stock in trade and assets of the firm, and inventoried and treated them the same as the. individual assets of said M. B. Gould; that some part of the assets of the firm also came to the possession of the executrix of W. R. Gould, and are now, either the original assets or the proceeds thereof, in the possession of the said Amelia Gould as executrix. . The bill further charges that the copartnership had nqt been ellssolved up to the time of the death of M. B·. Gould, although M. B. Gould had for some time prior to his death the exclusive possession of the partnership property, and conducted the business and excluded William R. Gould therefrom, and negotiations were pending between M. Brooks and William R. Gould for a settllilment of their partnership business at the time of the death of M. B. Gould. It is also charged that both the partners were insolvent at the time of their respective deaths; that defendant Hills, as administrator of M. B. Gould, and defendant Amelia Gould, execn,trixof William R. Gould, have paid none of the copartnership debts, and have. treated the copartnership assets which came to them respectively as individual assets of the respective decedents, although the copartnership assets which came to the hands of defendants .are sufficient to pay all, or nearly all, the copartnership debts; and that the copartnership creditors are entitled to be paid the,full proceeds of such copartnership property. The bill prays that the defendants account for the copartnership aSl'lets which came to their hands respectively; that a receiver be appointed to take possession of, such copartnership assets and administer them in the interest of the copartnership creditors. To this bill the defendants have demurred, on.the ground that: the subject-matter of this suit is solely within the jurisdiction of the probate court of Cook county; that such court has !trople, power to marshal and distribute the assets according to and priorities of the several individual and copartnership creditorS', and to direct the defendants in relation thereto, and therefore this court cannot entertain complainant's bill, but complainant sllould apply to the probate court for such order in regard to the partnership assets as his equities entitle him to. The case made by the bill shows defendants to be trustees for the
creditors of the firm to the extent of whatever copartnership assets have eometo their hands. It shows that before the dissolution of the firm the partners died, leaving copartnership property, which is now in the possession of their individual representatives, and that these assets ought to be applied to the payment of the copartnership debts. There can be no doubt, I think, of the general principle that the copartnership debts constitute a lien anll an equitable charge upon whatever copartnership property existed at the time of the dissolution of the firm. This position is fully sustained in Menagh v. Whitwell, 52 N. Y. 146, and Raineyv. Nance, 54 ill. 29, and other cases which might be cited. While it may be true, as contended by the defendants, that the probate court has ample power under the statute of Illinois to direct the application of copartnership property to the payment of the debts of the firm, yet the complainant, being a. citizen of the state of New York, is not compelled to go into the state tribunal .for the purpose of asserting his rights, but may proceed directly against the defendants, or any person having possession of the copartnership assets, no matter under what right he claims them. Under the authorities, there is no necessity for this complainant, the principal debtors being dead, to obtain judgment before resorting to a court of equity, but he may proceed at once, in equity, to have the assets marshalled and distributed to the creditors entitled to them. . There is no doubt but what, under the authorities, the marshalling of the assets of copartners, or of deceased debtors, for the purpose of applying those assets to the payment of indebtedness of creditors, is one of the original subjellts of equity jurisdiction, and it has been decided often that the statutory provisions of the various states, provid. ing the method by which estates may be settled by the state, probate, and surrogate courts, do not deprive a court of equity of jurisdiction, and especially courts of the United States. The subject was fully discussed by the supreme court in 7 Wall. 425. I have no doubt in this case, upon the charges contained in the bill, showing that the assets of this copartnership have gone into the hands of these defendants, whether they act under the authority of the probate court, or whether they are acting without authority, an action is maintainable by the creditors of the firm for the purpose of reaching the assets and applying them to the payment ofthe copartnership debts. The demurrer to the bill is therefore overruled.
CLA.FLIN and others v. McDERMOTT and others.
(Uircuit Court, S. D. Nf/lD York.
June 14, 1882.)
Actions in aid of an execution at law are ancillary to the orIginal '!!uit, and are, in effect, a continuance of the suit at law to obtain the fruit of the judgment, or to remove obstacles to its enforcement.
2. FOREIGN JUDGMENTS-FoRCE AND EFFECT.
A judgment of one state has no force in another state save what it derives from the laws of such state, and the provision of the constitution of the United 'States which relates to its effect applies only to its eifect as evidence. 3.
EQUITY-REMEDY-WHEN OREDITOR MAY INvOKE.
A creditor at large cannot invoke the jurisdiction of equity to enforce his claim unless upon some of the recognized grounds of trust or administration . of equitable assets. Unless such grounds exist his remedy is at law, and eqllity will not assist him until that remedy is exhausted.
4,'Om!lDITOR'S BILL-FOREIGN JUDGMENT.
A jUdgment obtained in another state cannot be the for aereditor's bill in this state. It must be sued over before it becomllj Ii judgment for the purposes of any remedy here, at law or in equity. ' 6. JURISDICTION-WHEN NOT Assmmn. This court will not assume jurisdiction to examine into' a fraudulent perver. sion of the proceedings of a, court of a distantsj;ate, and set aside transfers based upon these proceedings, when the actions, the transactions, and the property are all within that state. _
Vanderpoel, Green wGuming, for plaintiffs. E. R. Meade, for defendants. WALLACE, C. J. The bill in this case is filed to set aside the transfe'r of certain personal property made at San Francisco, California, by Kennedy & Durr, to MacDermot, by means of collusive judgments and sales nnder executions issued thereon, the complainants being creditors of Kennedy & Durr, and having recovered judgment in a state court in California against Kenlledy & Durr, upon which an execution has been returned unsatisfied. Bya demurrer, the question is presented whether the bill can be maintained here, no jndgment having been obtained or execution issued in this court, or in any court of the state. Actions like the present, in aid of the oution at law, are ancillary to the original s,Uit, .and ire, in effect,a oontinuance of the suit at law to obtain the fl'uit of the judgment or to remove obstacles to itB enforceme!lt. Because this is the nature, of such an action, it has peen decided that such a .8uit may be maintained in a federal court although all the parties reside in the state where it is brought,· the judgment in the ()riginal suit having beAn .recovered in the federal court in.which ,the suit was brought.