Kuhne vs. Law. has upon the estate of every member of the firm; that reasons have been suggested such as these: in extending credit a partnership creditor looks to the firm, a separate creditor to the separate estate; credit given to the firm increases its means, credit given to the separate partner increases his means; but these are fanciful, and contrary to what every one acquainted with partnerships in rural districts knows to be true; that the case of Wardlaw vs. Gray established in 1837 the right of partnership creditors, after exhaustion of the partnership effects, to come in pari passu with separate creditors in the distribution pro rata of the estate of a deceased partner, and so the Courts of Equity in this State have ever since administered the rule, having carefully re-examined the subject in 1856-7 in the three cases, 9 Rich. Eq., before cited; that the converse of the rule grew up in the English Court of Bankruptcy, where it was adopted for its convenience, and has been there extended to the Courts of Equity by Chancellors presiding in both Bankruptcy and Equity, but even in the distribution of assets in the power of a Court of Equity does not control prior liens: if ever recognized at law, it could not be applied in a Court of Law with a just regard to the rights of all parties. The Court of Errors attained no satisfactory conclusion respecting the rule which should prevail in equity in the distribution of separate effects between separate and partnership creditors; but the Judges were nearly, if not entirely, unanimous in the opinion that at law the supposed preference given to a separate creditor should not be allowed to prevail against a prior lien acquired by a partnership creditor. They considered the case of Roberts vs. Roberts as one inconsiderately adjudged, sustained by no previous decision in the State, and rather oppugned by the effect which in Wilson vs. Bowden, cited for its support, was given to the legal rights of the assignee. This case was then withdrawn from the Court of Errors, and is now decided by this Court. Columbia, November, 1866. After what has taken place, the case of Roberts vs. Roberts no longer controls us. That case was probably submitted without argument, and decided under misapprehension. Of those who signed the hasty opinion given in it, no one now living, who has spoken about it, has the least remembrance of it. The other cases at law found in our reports (Crawford vs. Baum, 12 Rich. 75; White vs. Union Co., 1 N. & McC. 517) show that partnership creditors must be satisfied before any portion of a partner's. share of the surplus can go to his separate creditor; for the separate creditor can sue but one, whereas to partnership creditors all are bound, and it is the right of the partners who are not indebted to the separate creditor, that the partnership debts should be paid. If there is an equity which gives to the separate creditor a preference as to separate effects, in a Court of Equity only can such equity be profected-for there only can all persons interested be made parties, and the proper inquiries concerning the partnership effects, and disposition of effects of both kinds, be had. Every case which has been cited to sustain what is called the converse of the rule is an equity case. At law the firm and every partner in it is bound for a partnership debt. The liability is said to be joint and several; but the contract is joint only. Suits against partners severally could not be sustained. Each of them is the agent of the others, and the law makes no distinction between an execution against them as partners and one against them as joint contractors acting each for himself. (See cases cited, 11 Rich. L. 730.) Either execution has a lien upon the goods of every one of them, and satisfaction of either execution may be exacted from any one of them, leaving him to compel contribution from the others. We know not here that there are any partnership effects, or that the estate of the separate creditor is not sufficient to satisfy creditors of both kinds. It has been further suggested in argument that we have no certain information that H. Kuhne is really a separate creditor, for it is said that Law's Kuhne vs. Law. note was given for goods purchased by the firm. This insufficiency of our information strengthens the argument against the attempt of a Court of Law in any form to maintain a separate creditor's supposed equity; but it is specially influential in a case like this, brought forward by a rule on the Sheriff, in which no order in favor of the separate creditor could be made, that would conclude partnership creditors no parties to it, or would secure the Sheriff. The propriety of leaving, to be determined in actions between the parties, their opposing rights thus brought before the Court by rule on the Sheriff, has frequently been held, (Cooper vs. Scott, 2 McM. 155; Dawkins vs. Pearson, 2 Bail. 619; Cannady vs. Odum, 2 Rich. 528,) and might of itself have availed for the dismissal of this rule, had not the case of Roberts vs. Roberts stood as a precedent; which, in the first place, we were required to remove. The motion is dismissed. DUNKIN, C. J., and INGLIS, A. J., concurred. Motion dismissed. Columbia, November, 1866. THE STATE vs. OBADIAH SARRATT. Bastardy-Statute of Limitations-Advances for Maintenance— Waiver of Irregularities-Bench Warrant. Under proceedings for bastardy commenced before the child has attained the age of twelve years, the father, upon conviction, may be required to enter into recognizance to pay twenty-five dollars a year, counting from the birth of the child, until its attainment of twelve years of age. The Statute of Limitations does not bar the prosecution, in cases of bastardy, for the annual penalties that had accrued before the proceedings were commenced. As interest is not chargeable upon the annual penalties, the jury, in allowing credit for advances made for the maintenance of the child, need not ascertain the time when the advances were made. If a defendant in a case of bastardy appears in person, pleads and makes defence by counsel, he waives any objection which he might have taken to the irregularity of the proceedings under which he was arrested and gave recognizance for his appearance. The Court of General Sessions in one district may, on proper evidence, order a bench warrant to issue to arrest and bind over a defendant found in that district to appear and answer to a prosecution in another district, and this may be done before indictment found as well in cases of bastardy as in other cases. BEFORE MUNRO, J., AT UNION, FALL TERM, 1860. The report of his Honor, the presiding Judge, is as follows: "The defendant was indicted for bastardy. It was in proof that the child was born on the 13th November, 1847, consequently was twelve years of age on the 13th November, 1859. It further appeared that a warrant had been issued against the defendant, the precise date of which I have not got, and returned non est inventus, by a constable. On the 12th of May, 1859, a bench warrant was issued, not however in conformity with the provisions of the Bastardy Act, but requiring the defendant to enter into a recognizance to appear and answer to a bill of indictment. State vs. Sarratt. "A true bill was found against the defendant at Fall Term, 1859, to which he appeared, plead not guilty, and traversed the case. For the defence, it was insisted that all these proceedings against the defendant, to make him a party in Court, were wholly irregular and void, for want of conformity to the provisions of the Bastardy Act of 1839. "As regards the irregularity of the proceedings against the defendant, I confess I was not without considerable doubt; but I concluded it would be the better course to take the opinion of the jury on the facts of the case, and if against the defendant, he might then carry the case up to the Appeal Court, where all the various questions raised in this truly anomalous case might be finally adjudicated. In pursuance of this design, I instructed the jury, that by appearing and pleading to the indictment, the defendant had waived any irregularity in the previous proceedings. At the same time, however, that I submitted the question of the defendant's guilt or innocence to the jury, I also submitted to them another question made by the defence, namely, whether the sums advanced by the defendant to the mother of the child had been advanced by him towards the support of the child, and if so, how much had been so advanced. The jury returned a verdict of guilty against the defendant, and that he had advanced the mother of the child one hundred and ninety dollars. "I signed an order allowing the defendant credit on his recognizance for the amount so found by the jury." The defendant appealed, and now moved this Court in arrest of judgment and for a new trial, on the grounds: In arrest of judgment 1. Because, as it appears on the face of the indictment, and the whole of the proceedings in the cause, that the child for whom the defendant was indicted was twelve years of age on |