¶1 after stating the case. It is settled upon a series-of adjudications in this court that the creditors of a copartnership, as such, have no lien upon the property and effects of the partnership,’ nor an equity to ¡have them applied to the partnership debts in derogation of the right of *124 the individual partner, with the consent of his associates, to dispose of them as he pleases. The equity to have this preferential appropriation resides in each member, as a means of personal exoneration, in accomplishing which the creditors only have relief. The subject is considered and the authorities examined in the recent case of Allen v. Grissom, 90 N. C., 90.
¶2 It is manifest that if the administration of the testator’s estate had been committed to some other person, the right vested in the testator io require the joint property to be first applied to the joint liabilities, would have devolved upon his representative; and in fulfilling 'the assumed trusts, he ought to have enforced the equity in relief of the estate. The same obligation rests upon the defendant Norris, and what, as surviving partner succeeding to full legal ownership, he might have been compelled to do, in administering the partnership funds, he ought to do of his own accord. In other words, he should manage and use them as surviving partner under the coercion of the duty assumed in accepting the executorship of the deceased for the protection of the interests of the testator’s estate. So where, in disregard of this equitable obligation, he transfers the joint effects to one who has knowledge of their character, and is both a creditor of the firm and of the individual partner, the same rule of appropriation must prevail and the moneys must be applied in like manner. The law in such case makes the appropriation, and it is not at the election of the creditor, even with the concurrence of the other partner, to make any different disposition to the prejudice of the estate of the deceased. As a court of equity will compel this application, when it becomes necessary to invoke its aid, so it will deem the creditor, into whose hands the fund comes with full knowledge, to have done that which he ought to have done, and the joint debts first discharged when the *125 fund is sufficient. There is therefore error in the ruling of the court for which there must be a new trial.
¶3 The plaintiff testifies that the $4,000 debt is constituted in part of debts of the firm, and if so, this part is equally entitled to share in the distribution'of the fund received by the plaintiff, and perhaps has a preferential claim to the appropriation over the $1,000 debt. To ascertain this a reference may become necessary, and can be better taken in the court below.
¶4 Let the judgment be reversed to the end that a new trial be had, and let this be certified.
¶5 Error. Venire de novo.