Appeal from judgment on report of referee.

Actions by David H. Lewis against Semon Bache and others and Henry H. Calm and others. Charles E. Hughes, Esq., referee, filed the following report:

“On May 29, 1886, Phraner & Arthur,- a firm composed of Wilson S. Phraner and Frank D. Arthur, made a general assignment of their copartnership property to the plaintiff, for the benefit of creditors. Semon Bache & Co. and Henry B. Cahn, respectively, defendants in the above actions, afterwards obtained judgments against Phraner & Arthur, and levied execution upon the assigned property. The plaintiff had already arranged for a sale, and, to avoid probable loss, all parties agreed that the assignee’s sale should take place, and out of the proceeds there should first be paid to the sheriff the amount of the judgments of Bache & Co. and Czthn, together with the sheriff’s fees, which ‘ the sheriff should hold in lieu of the said property, without prejudice to the right of the said assignee claiming the said moneys in any action against the sheriff, the same as though the sheriff had sold-the property.’ The plaintiff, as assignee, accordingly paid to the sheriff, under protest, $859.74, on account of the Bache & Co; judgments, and $881.05 on account of the Cahn judgments. These actions were brought by the assignee against the sheriff and the judgment creditors, to recover the sums so paid. The sheriff’s indemnitors were subsequently substituted in his place as defendants. No objection is urged to the right of the assignee to maintain the actions. The sole defense is that the assignment was made with intent to defraud creditors, and the property levied upon was, as against defendants, the property of Phraner & Arthur. Thy acts of fraud alleged are: (1) Drawings by the partners of firm moneys for individual úse. (2) The makingof firm notes for the individual liabilities of the partners to their wives, and the insertion of the names of the latter as firm creditors in the schedules. (3) Preference of individual liabilities to the fathers of the partners. (4) Insertion of the name of a former partner in the schedules as a creditor of the firm on notes given him on his retirement, for his interest in the business.

“These will be considered in order.

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