The controversy in this cause is in respect to the application of the sum of §3,803.58 by Walker, the assignee, towards the payment of the two several debts due by Isaac P. Cornog and John Walker Shortlidge to Huldah W. Shortlidge; which debts were secured by judgments, as aforesaid, upon which executions had been issued and delivered to the sheriff one day before the assignment was made by them to Walker.
It appears that the sheriff, in due time, had levied upon the property so assigned.
• The balance remaining in the hand of the assignee for distribution and payment to the parties entitled thereto, being the sum of $3,803.58, was but little more than the amount due upon the execution issued upon her first judgment, and was greatly below the amount due on both executions in the-sheriff’s hands. Whether the application of the balance in the hands of the assignee to the payment of debts due to Huldah W. Shortlidge is proper or not depends upon the fact whether said debts are what is called partnership debts, or debts due by the said Isaac P. Cornog and J. Walker Shortlidge as copartners, or by them as individuals and not as co-partners.
It does not appear, by words expressed in the bonds on which the judgments in favor of Huldah W. Shortlidge were confessed, that they were given by Cornog and Shortlidge as copartners, but I think that there is no doubt, from the proofs in the cause, that said bonds were given by them for money loaned to them as copartners, at various times before the date *32of the bonds, while they were tradii. g together as copartners; and that the money so loaned was us sd by them in their partnership business, and increased the assets and property of the firm to the amount so loaned.
If so, the debts due Huid ah W Shortlidge, however secured, were partnership debts, and not mere individual debts as contradistinguished therefrom. I think I have a right— and in fact ought—to look beyond tb 3 judgments, and inquire into the origin, the nature, and the true character of the indebtedness. McDowell v. Wilmington & B. Bank, 1 Harrington, 381.
All the parties to this cause, exi cpt the trustee, seem to be partnership creditors of Cornog. Shortlidge, & Co., and would, were it not for the judgment! and executions thereon, stand in precisely the same relation i n respect to the assets of the firm; but that -relation has bi en affected, .and indeed changed, or rather it does not exisi, owing to the fact that Firs. Shortlidge had, prior to the ass ignment, issued writs of fi. fa. which were in the hands of 1 he sheriff before the assignment was made.
All of the goods and chattels of Cornog, Shortlidge, & Co. were bound by these writs iron t the time they were so delivered to the sheriff, and were act tally levied upon by him within the time limited bylaw after 1 hey came into his hands. Del. Laws, Eev. Code, p. 405.
The executions and levies gave E rs. Shortlidge, the plaintiff therein, a legal priority over the other creditors ; and entitled her to receive from the assignee, who had sold the properties, the money received fro: n the sale thereof; the amount of which sale could have besn recovered from him had he refused to apply the balance i i his hands, arising from the sale, to her executions or debts.
It matters not, as far as a prope. • decision of this case is concerned, whether that balance of ' he sale of the property was paid to the sheriff or to Mrs. S rortlidge herself. If it was paid directly to the sheriff, he w< >uld have been bound to pay over the amount to her; and if f was paid to Mrs. Short*33lidge herself towards the satisfaction of her debts against Cornog and Shortlidge, it was paid to the creditor having the legal preference over the other creditors of the firm by reason of her diligence in causing the delivery of her executions to the sheriff before the assignment was made by her debtors, ■Cornog and Shortlidge, to Walker, their assignee.
I shall therefore decree that the money arising from the sale made by Walker, of the partnership property and effects of Cornog, Shortlidge, & Co. which were levied upon by the .sheriff under the said writs of execution, was properly applicable towards the payment of said debts; and that the plaintiffs in this cause, in this respect, can take nothing by their bill.
Let a decree be drawn accordingly.