106 U.S. 661
1 S.Ct. 380
27 L.Ed. 215
MCGINTYv.FLANNAGAN and another.
December 18, 1882.

A. B. Pittsman, for plaintiff in error.
Jeff. Chandler, for defendant in error.
MATTHEWS, J.


1
This is an action which arose in the course of the proceedings in that of Fitzpatrick v. Flannagan, ante, 369, the judgment in which has been in part reversed. Edward McGinty, the plaintiff in error, having in that cause appeared as a claimant of the property seized under the attachment, the same was delivered to him by the marshal, on taking a bond conditioned to pay to the plaintiffs in the attachment such damages as might be awarded against the claimant in case his claim should not be sustained, or, in that event, to return the goods to the marshal. Thereupon, in accordance with the statutory practice in such cases in Mississippi, and issue was joined between the plaintiffs in attachment and the claimant, to try their respective titles to the property. Upon this issue, evidence was submitted by the parties, tending to show substantially the same state of facts as appears in the principal case.


2
The court refused to give instructions asked on behalf of the defendant, and in lieu thereof, among others not necessary to be considered, gave the following:


3
'(2) It was the duty of J. J. Fitzpatrick, as such surviving      partner, to sell and convert into money the goods and      property belonging to said firm, and to collect the debts due      the firm, and first apply the same to the payment of the      debts due by the firm, and not to mingle the same with his      own goods, so that they could not be identified, he being by law created a      trustee for this purpose; but if he mingled them with other      goods, so that they could not be identified, he thereby      rendered his own goods liable for the debts of the firms, or      [as?] those originally owned by the firm; and if he applied      the proceeds of the sale of such goods, either originally      owned by the firm or those afterwards purchased and mixed up      with them, so that they could not be identified, to the      payment of his private debts, such disposition operated as a      fraud upon the rights of the creditors of the firm of which      he was surviving partner and as to him rendered the sale      void.'


4
There was a verdict and judgment for the plaintiffs in the attachment, which are brought into review by this writ of error.


5
The charge above quoted goes further than that which was considered and adjudged to be erroneous in the principal case. For here the jury were instructed, that it was a fraud upon partnership creditors to apply to the payment of individual debts goods belonging to the surviving partner, which never belonged to the partnership, but were his own individual property, merely because they had been mingled with the stock formerly belonging to the firm. This is an error, in any view that can be taken of the rights of the parties. Even on the supposition that the partnership stock was held under an express and positive trust for partnership creditors, equity would give the latter only so much of the fund as represented the partnership property, and would divide it as to values between the parties beneficially interested, even although the specific goods might not be separable. This being so, it could hardly be charged, as a matter of law, that an appropriation of the mingled stock to the extent of a value no greater than would be allowed in equity to individual creditors, in marshaling the assets for distribution, between them and the creditors of the partnership, amounted to a fraud upon the latter. For this, as well as for reasons stated in the opinion in the former case between the original parties, we hold this instruction to be erroneous.


6
The judgment is accordingly reversed, and the cause remanded, with instructions to grant a new trial. Judgment reversed.

