erty. The debt is personal, without any lien or preference for its payment out of the debtor's estate. The individual partner is, however, not less liable for a firm debt than is the firm itself. The several liability of the partners is no less a constituent of the partnership obligation than is their joint obligation. Both spring from the root of partnership. The joint creditors, therefore, are entitled at law to share the separate estate of a partner with his individual creditors," etc: See Parsons on Partnership, sec. 108; citing Hutzler Bros. v. Phillips, 12 S. C. 136; 4 Am. St. Rep. 687; and other cases.

We have not the least idea that the parties intended to do anything wrong, but the assignment was not in conformity with the law as we understand it, and had the effect of creating preferences not allowed by law.

The judgment of this court is, that the judgment of the circuit court be reversed, and the cases remanded to the circuit court for such further proceedings as the parties may be advised, in accordance with the conclusions herein announced.

PARTNERSHIP CREDITORS MAY SHARE PRO RATA in the individual property of the partners, after exhausting the partnership assets: Hutzler v. Phillips, 26 S. C. 136; 4 Am. St. Rep. 687; Gadsden v. Carson, 9 Rich. Eq. 252; 70 Am. Dec. 207, and note. Compare Scudder v. Delashmut, 7 Iowa, 39; 71 Am. Dec. 428, and note.

TRANSFER OF PARTNERSHIP PROPERTY BY THE COPARTNERS, or by one partner with the consent of the others, to pay individual debts, is fraudulent and void as to the firm creditors, unless the firm is solvent and sufficient property remains to pay the partnership debts: Arnold v. Hagerman, 45 N. J. Eq. 186; 14 Am. St. Rep. 712. Assignment by partners which gives preferences to separate partners for debts they have against the partnership before paying other creditors is void: Goddard v. Hapgood, 25 Vt. 351; 60 Am. Dec. 272. But in Nye v. Van Husan, 6 Mich. 329, 74 Am. Dec. 690, it was held that preference to individual debts does not render void a partnership assigment for the benefit of creditors.

SIMMONS V. REID.

181 SOUTH CAROLINA, 889.]

SETTING OFF JUDGMENTS. — A judgment in favor of the defendant may, on motion, by order be set off against a judgment previously rendered in favor of the plaintiff. The power to so set off judgments is a common. law power, not derived from nor regulated by the statute of set-off or of discount. JURISDICTION TO SET OFF ONE JUDGMENT AGAINST ANOTHER IS EQUITABLE IN ITS NATURE, and the application therefor is addressed to the sound judicial discretion of the court, in the exercise of which equitable rights of persons not parties to the suit will be considered and protected.

SET-OFF OF Assigned JudgmENT. - The court will not order a judgment to be set off against one in favor of the defendant, when the plaintiff had assigned it to his attorney to secure the payment of the latter's profes sional service, and the attorney, when he took the assignment, had no notice of the existence of the judgment which the defendant seeks to set off.

Moorman and Simkins, for the appellant.

O. L. Schumpert, contra.

McIVER, J. Simmons having recovered a judgment in a trial justice court for the delivery of a horse and ten dollars damages, or eighty dollars if the horse be not delivered, and costs, Reid appealed therefrom to the circuit court. The appeal was heard during the regular term for November, 1886, and on the 6th of December, 1886, Judge Fraser delivered his judgment, modifying the judgment appealed from, by reducing the alternative judgment from eighty to sixty dollars. It having been discovered that the official term of Judge Fraser had expired before the 6th of December, 1886, and he having been re-elected in the mean time, an extra term of the court was held on the 31st of December, 1886, for the purpose of resigning judgments rendered after his former commission had expired. At the extra term, upon notice, Reid applied to the circuit judge for an order to set off a judgment by confession before a trial justice, entered the 24th of September, 1883, in favor of Reid against Simmons, a transcript whereof was filed and entered in the clerk's office on the 28th of December, 1886; but the circuit judge, holding that he could not hear an original motion at an extra term, declined to consider it.

At the next regular term, in February, 1887, the application was renewed on notice. In response to this application, Simmons, the plaintiff herein, showed cause: 1. That on the 6th of December, 1886, in consideration of professional services rendered herein, the said plaintiff assigned this judgment to his attorney, in pursuance of a prior parol agreement made and entered into at the time of the commencement of the suit in the trial justice court; 2. That subsequently, to wit, on the 24th of December, 1886, the said attorney, for valuable consideration, assigned said judgment to one Pool, who is now the legal owner thereof, and is not a party to these proceedings; 3. That said assignment was filed with the judgment roll and lodged with the execution herein on the 24th of December, 1886; 4. That the judgment by confession before the trial justice now sought to be set off against the judgment herein

is not a valid judgment; and even if so, it cannot be set off as against third parties purchasing for valuable consideration without notice. The circuit judge refused the motion, on the sole ground that the assignment of the judgment herein was sufficient to bar the appellant's right of set-off.

From this order the defendant, Reid, appeals, alleging in general terms error in such refusal. Strictly speaking, we might decline to hear this appeal, as there are no specific errors pointed out, nor are there any indications as to where the error alleged lies. But waiving this, we will proceed to consider the points made in the argument submitted in behalf of appellant.

There can be no doubt that the court of common pleas has jurisdiction in a proper case, and upon a proper showing, to require a judgment previously obtained by a defendant against a plaintiff to be set off, pro tanto, against a judgment subsequently obtained by the plaintiff against the defendant; and there is as little doubt that this may be done by motion on a rule to show cause: Williams v. Evans, 2 McCord, 203; Duncan ads. Bloomstock, 2 McCord, 318; 13 Am. Dec. 728. But it is equally well settled that this is a common-law power, not derived from or regulated by the statutes of set-off or discount. The jurisdiction for this purpose is equitable in its nature, and the application is addressed to the sound judicial discretion of the court. In addition to the cases above cited, see Tolbert v. Harrison, 1 Bail. 599; Low v. Duncan, 3 Strob. 195; and Meador v. Rhyne, 11 Rich. 631; in which last-cited case it is said that the court, in exercising this jurisdiction, will always regard the equitable rights of persons not parties to the suit. It is therefore obvious that section 133 of the code, relied on by counsel for appellant, has no application.

We see no reason to doubt that the circuit judge, in refusing this motion, proceeded upon the principle which, as we have seen, regulates the exercise of this jurisdiction; and certainly we cannot say that there was any abuse of his discretion in refusing the motion. On the contrary, we think it was properly exercised. Here the attorney for the plaintiff in good faith, as we must assume in the absence of any evidence to the contrary, with a view to secure compensation for his services, which had proved to be effective, took an assignment of the judgment, the fruits of his services, when, so far as appears, he had no notice either actual or constructive of the judgment previously obtained by confession in the trial jus

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tice court by Reid against Simmons, for the transcript of that judgment was not filed in the clerk's office until after the assignment was executed, and then afterwards assigned the judgment for value to a third person, who was alike without notice. Under these circumstances, it seems to us to have been a very proper exercise of discretion on the part of the circuit judge to refuse to require one judgment to be set off against the other, as he could not have done so without disregarding the equitable rights of persons not parties to these proceedings.

It may be quite true that an attorney has no lien on a judgment recovered by him for his fee (Scharlock v. Oland, 1 Rich. 207), and it may also be true, under the case of Miller v. Newell, 20 S. C. 123, 47 Am. Rep. 833, that a chose in action arising out of a tort strictly personal is not assignable, though in this case the tort upon which the action was founded was a wrong done to property, and not to the person, as in Miller v. Newell, supra, yet it is undoubtedly true that an attorney has an equitable claim to be paid for his services out of the judgment which he has recovered for his client; and the court in a proper case, especially in a matter addressed to its discretion, will always recognize such a claim. As is said in the case of Puett v. Beard, 86 Ind. 172, 44 Am. Rep. 280, "The right to set off one judgment against another is purely equitable, and only allowed where good conscience requires it; and good conscience is far from requiring that an attorney's claim for services in securing the judgment should yield to the claim of those holding rights adverse to their clients."

It is true that in Duncan ads. Bloomstock, 2 McCord, 318, 13 Am. Dec. 728, the court did order one judgment set off against the other, notwithstanding an assignment of one of them to a third person; but that decision manifestly proceeded upon the ground that the assignment was not made in good faith, but simply for the purpose of defeating the motion to set off one judgment against the other; for the court used this language: "The court will nevertheless respect such an assignment, where it appears calculated to promote the ends of justice, but not where it has a contrary tendency." The circuit judge evidently supposed that by respecting the assignment in this case the ends of justice would be promoted, and we agree with him. It appears to have been made in pursuance of an agreement entered into at the time the action was commenced, and was doubtless the means, and possibly the only

means, by which the plaintiff obtained the services of an attorney, which have proved effective.

The counsel for respondent, in his argument, has raised a question as to the validity of the confession of judgment before the trial justice, but as that question was not passed upon by the circuit judge, his decision being rested solely on the ground of the assignment, we are not at liberty to consider it.

The judgment of this court is, that the order appealed from be affirmed.

SET-OFF OF MUTUAL JUDGMENTS is discussed in the note to Duncan v. Bloomstock, 13 Am. Dec. 729-731. See Puett v. Beard, 86 Ind. 172; 44 Am. Rep. 280; Hovey v. Morrill, 61 N. H. 9; 60 Am. Rep. 315; Skrine v. Simmons, 36 Ga. 402; 91 Am. Dec. 771; Thorp v. Wegefarth, 56 Pa. St. 82; 93 Am. Dec. 789; Lee v. Lee, 31 Ga. 26; 76 Am. Dec. 681; Gunn v. Todd, 21 Mo. 303; 64 Am. Dec. 231; Ramsey's Appeal, 2 Watts, 228; 27 Am. Dec. 301; People v. N. Y. Common Pleas, 13 Wend. 649; 28 Am. Dec. 495.

In an action to set off judgments founded upon contract, and obtained by plaintiff and defendant against each other, defendant, claiming his judgment as exempt under the Indiana statute, may defeat the set-off by showing that all his property, including the judgment, is less than six hundred dollars: Carpenter v. Cool, 115 Ind. 134.

BROWN V. THOMSON.

[31 SOUTH CAROLINA, 486.]

AGENCY. THE HUSBAND OF A MARRIED WOMAN MAY BE BY HER CONSTITUTED her agent for the management of her separate estate, and if he, being such agent, purchases articles for her or for her separate estate, or supplies for her tenants thereon, she is liable therefor.

WHETHER A HUSBAND HAS BEEN BY HIS WIFE CONSTITUTED HER AGENT TO MANAGE HER SEPARATE ESTATE, and whether purchases made by him were for the purposes specified, are questions of fact for the jury, and must be left to their decision.

ESTOPPEL. MARRIED WOMAN WHO REPRESENTS TO A CREDITOR THAT ARTICLES PURCHASED or money borrowed are for the use of her separate estate will be afterwards estopped from disputing that representation, unless it appears that the creditor knew at the time he extended credit that such representation was not true. BURDEN OF PROOF MARRIED WOMEN. - When it is shown that a married woman has represented, as a matter of fact, that a contract was made in reference to her separate estate, then the burden of proof shifts, and it is incumbent on her to show such facts as defeat the estoppel arising from her representation, and this she can do only by proving that the creditor knew at the time he extended credit that the articles were not purchased for that purpose.