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356 SIMM ON S v. TONGUE.
91 and 119; as to all which, the doubts or objections of the audi-
tor, in these respects, must be overruled,
In the administration of the assets of a deceased debtor by
this court, where he had been, in his life-time, a member of a
partnership, it is now definitively established, that the partnership
creditors must be first satisfied out of the joint funds; and the
separate creditors first paid out of the separate estate, (i) Conse-
quently, until the partnership creditors have been thus fully satis-
fied, the separate creditors can make no claim upon the partnership
effects; nor until the separate creditors are satisfied, can the part-
nership creditors be permitted to take any thing from the separate
estate. The debtor, in such cases, has two distinct capacities, the
one a natural, the other a conventional capacity; (j) in the one
case his capacity is that of a separate individual, in the other it is
that of a partner according to the contract among an association
of individuals. The creditors of these several capacities are as
distinct as the estates so held, in respect of which the credit may
be presumed to have been given: and the property of each is
applied first to the satisfaction of the creditors of each; because a
different course would be, in effect, to apply the property of one
man to the payment of the debts of another. Where a partnership
exists nothing can be said properly to belong to each member of
it, but his dividend of the surplus after all the partnership debts
are paid; so, on the other hand, that alone can be considered as
properly the separate estate of an individual which remains, after all
his separate debts have been paid. Each of those capacities of the
same person is an implied surety for the other; or, in other words,
partners are mutually sureties to the creditors for the share of each
other; (k) but then it would be unequal and unjust to extend this
suretyship, or implied liability beyond the surplus, or the clear
estate belonging to each capacity; because the creditors of the
one capacity hold it directly bound, and those of the other Lave
only an eventual and secondary claim upon the same capacity after
those to whom it was directly bound have been fully satisfied. (f)
But as the assets now to be administered are the proceeds of
the separate estate of the late Thomas Tongue, it is clear, that all
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. (i) McCulloh v., Dashiell, 1 H. & 6. 97,—(j) Salmon 9, The Hamborough Com-
pany, 1 Cha. Ca. 294 Coppen v. Coppen, 2 P. Wilt. 296; S. C. Sel Ca. Chan. 30.-
(k) Ex parte Watson, 4 Mad. 477.- (l) Ex parte Elton, 3 Ves, 240; Gray v. Chis-
well, 9 Ves. 118; Collyer Part. 337.
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