Opinion of the Court.

the same defendant, are in the hands of different officers, the officer who first seizes property under his writ, by levy, obtains priority for its satisfaction out of the property levied upon, notwithstanding other writs may have been received by other officers prior to the time his came to hand. However firmly the rule contended for may be established in other jurisdictions, it has never been adopted in this State. Directly the contrary was decided by this court in Rogers v. Dickey, 1 Gilm. 636. It was there said: "The doctrine is therefore well settled in England,-which this court is inclined to adopt,—that where two or more writs of fi. fa. are delivered at different times, either to the same or different officers, and no sale is actually made of the defendant's goods, the execution first delivered must have the priority, though the first seizure may have been made on a subsequent execution."

It is not denied that this case is an authority directly against the contention of appellee, but it is said it did not involve this question, and therefore the decision is extra-judicial. It is true, in that case the writ under which the constable seized the property of Betts, defendant in the two writs, was a distress warrant issued by a landlord. The statute then in force authorizing a distress for rent, as stated in the opinion by YOUNG, J., made it necessary for the person to whom the rent was due, to call to his assistance the sheriff, or some constable of the county, when he went to seize the goods of his tenant, and required of him, before the property so seized could be sold, to obtain a judgment against the tenant.

We need not stop to inquire whether it was absolutely necessary, under the facts of that case, to treat the writ under which the goods were seized by the constable, as having all the force and effect of a fi. fa. It is perhaps true that the decision could have been placed on a different ground, and the decision of the question here involved avoided. There can be no doubt, however, from the authorities cited in the briefs of counsel, and the opinion rendered, that the very eminent counsel on either side,

22-133 ILL.

Opinion of the Court.

as well as the court, treated the issue then before the court precisely as it must have been treated had the constable held a writ of fi. fa. instead of a distress warrant, and the whole case made to turn upon the decision of this identical question. That decision has never been modified, or even criticised, so far as we know, and has been understood by the profession as settling the rights of parties under executions issued from the various courts of this State, whether in the hands of the same or different officers. If, therefore, it be admitted that the weight of authority is against it, no such convincing reasons have been adduced in support of the contrary rule as would justify our overruling it at this late day. Evils anticipated as a result of adhering to it have not been experienced in the past, and there is no substantial ground for fearing them in the future.

We are of the opinion, then, that the execution in the hands of Hanchett, sheriff, became a prior lien upon all the personal property of Drummond in Cook county, and that he was guilty of no wrong in levying upon and selling the horse in question. merely because a junior attachment writ had been levied, no sale having been made.

There was no error in overruling the motion to dismiss the suit on the stipulation of Ives. The action was for the benefit of the plaintiffs in the attachment suit. The court, in refusing to allow Ives to control it to their prejudice, committed In the view here expressed, other points raised are

no error.

unimportant.

The judgments of the Appellate and Superior Courts are reversed, and the cause remanded to the latter.

Judgment reversed.

Syllabus.

EMMA B. HANFORD et al.

v.

CHARLES B. PROUTY et al.

Filed at Ottawa May 14, 1890.

1. TRUSTEE AND CESTUI QUE TRUST-debtor and creditor-when the different relations exist. A widow continued the business in which her husband had been engaged in his lifetime, using the property, in conducting the business, which was left by will to her and her children. It was held, that so long as the property of the children was employed in the business it was a trust fund in the hands of the mother. But upon a settlement between her and her children, in respect to their shares in the estate, she gave them her obligation for their respective portions, and they gave in return a release to her from any further liability to them. This was regarded as an extinguishment of the trust, at least so far as concerned any subsequent indebtedness, and thereafter the legal relation between the mother and the children was that of debtor and creditor.

2. PARTNERSHIP-marshaling assets-as to debts of the firm, and debts of individual partners. The equitable rule which requires the assets of a partnership to be first applied to the payment of firm debts, and rice rersa, is founded, not upon the equities of the creditors, but upon the equities as between the partners. Each partner has the equitable right to have partnership assets applied, in the first instance, to the satisfaction of partnership debts, so that his individual property may be relieved; and so the members of the firm have each an equitable right to have the individual property of each partner first exhausted in satisfying his individual debts, in order to the exemption of the joint estate, as far as possible, from seizure for individual debts.

3. But firm creditors whose debts have not been reduced to judgment have no specific lien, either legal or equitable, upon the property of either the firm or of the individual partners, and their right to have the firm assets so marshaled as to satisfy their debts first, can only be worked out through the equities of the partners.

4. So a sale made in good faith by one partner to a co-partner, or to a third person, of all his interest in the firm, is as valid to transfer the interest of the seller to the vendee as a sale between individuals, although the buyer and seller are insolvent, and such sale may defeat their creditors; and as the firm creditors have no lien, the buyer can dispose of the property as his own, and pay his separate creditors, to the exclusion of joint creditors, and vice versa.

Syllabus.

5. DEBTOR AND CREDITOR--preference among creditors. Trade creditors are not entitled to preference over other creditors. A debtor may legally apply his stock of goods to the payment of his obligation given for a debt due to another, to the exclusion of trade creditors, and the payee or holder of such obligation may take steps whereby to obtain a lien on the debtor's property.

6. So where one engages in mercantile business with funds belonging to another, there will be no equitable right, as between them, to have the stock of goods applied in the first instance to the payment of the trade creditors. Such creditors, having no judgment, are entitled to no preference.

7. INSOLVENT DEBTORS-preference among creditors. After a debtor has made up his mind to make an assignment of his property for the benefit of creditors, all conveyances, transfers, and other dispositions of his property or assets, made in view of his intended general assignment, whereby any preference is given, will, in a court of equity, be declared void.

8. To render a lien acquired by confession of judgment and the issue of execution before the making of a general assignment by a debtor, fraudulent, it must appear, first, that at the time the judgment was entered, execution issued and levy made, the debtor had made up his mind to make an assignment for the benefit of creditors; and second, that he had some agency in bringing about the entry of the judgment and the seizure of his property on execution. When the lien of the execution is apparently superior to the assignment, the burden will rest upon the party seeking to defeat such lien, to establish both of the foregoing propositions.

9. In this case, a debtor gave his judgment notes, to which were attached warrants of attorney for the confession of judgment at any time. Some months afterward, the payees of the notes learned from the debtor's business manager, in response to an inquiry, that the debtor was unable to pay all his debts, and they, without any consultation, and without his knowledge, had judgments confessed on the notes, and execution issued, and levied on the debtor's stock of goods. The debtor on the next day consulted with the same attorneys who procured the judgments, execution and levy, and by their advice made a general assignment for the benefit of creditors. The proofs showed that the steps taken by the payees of the notes were of their own motion, uninfluenced and unaided by the debtor or his business manager, and that there was no collusion or co-operation between them: Held, that the executions and levies did not constitute an illegal preference.

10. CONSIDERATION—sufficiency-settlement and release of a demand. The transfer of trust property to a trustee of the trust estate, by the cestui que trust, and the release and discharge of the trustee from all

Brief for the Appellants.

liability for the use of the trust property for several years, is a sufficient consideration for the making of notes by the trustee to the cestuis que

trust.

11. PARENT AND CHILD-duty of the former-as to the support and education of his children. As a general rule, a father must, if he can, maintain as well as educate his infant children, whatever their circumstances may be, and no allowance will be made to him out of their property while his own means are adequate for such purpose.

12. So if the mother, after her husband's death, voluntarily takes it upon herself to maintain and educate her children, she can not be compelled, even in the interest of creditors, to charge her children with the expense of that which she has thus elected to do for them gratuitously.

APPEAL from the Appellate Court for the First District;heard in that court on appeal from the Circuit Court of Cook county; the Hon. OLIVER H. HORTON, Judge, presiding.

Mr. MATTHEW P. BRADY, for the appellants:

Mrs. Burgess, in carrying on the business, was a trustee for appellants to the extent of their interests, and accountable to them for their share of the profits of the business, and having failed to pay them their share, was, at the date of the settlement, justly indebted to them for their shares.

Where a trustee or guardian employs trust funds in a trade or venture of his own, whether he keeps them separate or mixes them with his own private moneys, the cestui que trust is entitled to his proportion of the profits made. Bond v. Lockwood, 33 Ill. 212.

An executor carrying on the testator's business is chargeable with such balances of profits as from time to time may be in his hands. Palmer v. Mitchell, 2 M. & K. 672; Robinett's Appeal, 26 Pa. St. 174.

The beneficiary is entitled to claim all advantages actually gained, and to hold the trustee chargeable for all losses in any way happening from a violation of this duty. 2 Pomeroy's Eq. Jur. 1075.