Wallace & Wingfield v. Hull, Frierson & Co.

By the Court. Lumpkin, J., delivering the opinion. We cannot concur with that class of authorities which hold that such a proceeding as this cannot be maintained at law. If the firm of Caldwell, Cummings & Co., be solvent, and the interest of Caldwell and Cummings in that concern could be ascertained, there could be no difficulty in this case. Is it not safe to assume, and the country and the courts act upon this assumption, that a firm is solvent until the contrary appears ? and that the apparent interest of each person is to be considered and treated as his actual interest, until rebutted by proof ? It has been settled in this State that, were this a common law execution, it could have been levied on the bacon in the hands of the garnishees ; or if sold by them, the proceeds could be reached by process of garnishment, based upon the common law judgment. Can any sensible distinction be drawn between the two cases ? It has been held in England that the rights of the partners can be ascertained and settled at law, as well as in equity; and notwithstanding the doubts of Lord Eldon, and the difficulties which occurred to Lord Alvanley, the doctrine laid down by Lord Hardwicke, has not been overruled; namely : that a settlement could be made at law. Let the partner then of Caldwell and Cummings appear [71] and contest the interest of Caldwell and Cummings in this fund; or show 'that the firm is insolvent, and that he is intitled to retain and dispose of these effects for the partnership debts — not those which might thereafter have been contracted, but such as were due when this process was served. Judgment affirmed.