Salsbury v. Ellison. require that the trustee shall distribute the proceeds therefrom ratably among the creditors. There are authorities which seem to hold that a surviving partner may prefer creditors in settling the firm obligations; but so far as we have been able to discover, with a single exception, there was no question of insolvency in the cases upon which such declaration rests. The reason for the rule prohibiting preference among the creditors did not exist, and therefore such cases do not militate against the correctness of the rule where such reason appears. If the firm assets are sufficient to pay all of the firm debts, so that each creditor will ultimately receive compensation in full, preference in the time or order of payment may not be inconsistent with the conditions of the trust. The exception referred to is the case of Egberts v. Wood, 3 Paige, 526, in which the chancellor suggests that the representative of the deceased partner has "no interest in the question as to what debtsshall be paid first in case the partnership effects are insufficient to pay the whole," and therefore an assignment for the benefit of preferred creditors cannot be impeached on the ground that such representative had no knowledge thereof. The suit was brought by a firm creditor. The assignment was not sustained, but the reason given for declaring it void was that one of the surviving partners had no knowledge thereof, and gave no consent thereto. But counsel for defendant in error insist that the acts of the surviving partner in this respect can only be questioned in a court of equity. That his assignment for the benefit of preferred creditors. cannot be attacked in a legal forum. From the nature of the transactions and legal status of the parties interested, it is true that these questions more often arise in equitable actions. But such an assignment, insolvency appearing otherwise, is held void as against a creditor injured thereby. No inves-tigation is necessary to disclose this fact, for the instrument, the assignor being insolvent, bears on its face evidence of its own invalidity. Where the void assignment is offered and relied upon by the party to be benefited thereby, there would seem to be no good reason why objection thereto may not under our practice be made in a court of law. In the action of ejectment courts of law have long assumed the privilege of rejecting a void deed, and they have insisted upon a large concurrent jurisdiction with courts of equity in investigating Salsbury v. Ellison. certain questions of fraud for the purpose of determining such invalidity. A resort to equity is necessary to set aside or cancel such an instrument and remove the cloud upon title; but the defect appearing on its face, or being disclosed in a proper manner, courts of law simply treat the deed as a nullity, and ignore its existence. We do not think that such an assignment as the one before us ought to receive any greater consideration or protection than a void deed to realty. And this is especially true under our present system of procedure. Had plaintiff averred ownership of the property replevied, by virtue of the assignment, defendant would have met the averment with an allegation of fraud upon creditors in the assignment, and the issue made upon the question would have been fully tried. There being only a general allegation of ownership in the complaint, it would be unjust to say that defendant might not object to the instrument upon which such ownership and right to possession entirely depend, where the matters appearing on the face of the instrument itself, together with the evidence already before the court, establish the fact that the claim of ownership is without foundation. It must be borne in mind that the proofs of plaintiff in making out his case (including evidence without objection in cross-examination) show beyond question the insolvency of the partnership at the time of the assignment; also the facts that the assignment was made for the benefit of the preferred creditors, and that Brinker was an unpreferred creditor to the extent of over $3,000, and therefore plaintiff himself thus established a defense against his own action, which if properly averred would be decisive in a court of equity. It must also be remembered that under our practice an equitable defense is available in a legal action, and therefore defendant was entitled, upon proper averment, to prove the same as an affirmative defense in this case. He would not be permitted, after plaintiff makes out a prima facie case and rests, to offer evidence of a defense, either legal or equitable, which was not presented by the pleadings. But when the evidence of plaintiff in support of his case discloses a perfect defense, whether the same be equitable or legal, he will be deemed to have waived the defect arising from want of averment thereof in the answer, and defendant may have the benefit of such defense. This is especially true where, as in the case before us, defendant may not previous to the trial have infor People v. Green. mation which would enable him to plead the defense in his answer. Had the assignment been rejected by the court when offered in evidence plaintiff could not have recovered; having been received in connection with the other proofs, it established a defense and defeated his claim of right to possession of the property in controversy. The judgment will be reversed and the cause remanded. BECK, C. J., dissented. Reversed. NOTE BY THE REPORTER.- In Loeschigk v. Hatfield, 51 N. Y. 660, it was held that a surviving partner has power to assign and transfer the copartnership assets to a creditor of the firm in payment of his debt, although such an assignment operates to give a preference to the assignee over the other creditors of the firm. An attorney, stopping a judge on the street, and using abusive language to him concerning his judicial action in a case pending before him, is guilty of “misconduct in office," warranting disbarring.* ROCEEDINGS to disbar an attorney. The opinion states the case. D. F. Urmy, attorney-general, L. S. Dixon and L. C. Rockwell, for people. B. F. Rice and B. F. Montgomery, for respondent. BECK, C. J. The petition of the Hon. Victor A. Elliott, judge of the District Courts of the second judicial district of this State, recently filed in this court, charges the respondent, Thomas A. Green, a duly licensed attorney at law, residing in the city of Denver, with malconduct in his office as an attorney.. It charges that the respondent halted the relator as he was driv * See Matter of Pryor (18 Kans. 72), 26 Am. Rep. 747. People v. Green. ing through the street with his daughter, a young lady, and addressed abusive, insulting and threatening language to him concerning his judicial action in a certain cause theretofore and still pending and undetermined in the District Court of Arapahoe county, wherein the said Green was counsel for the defendants; that he accused said judge with tyranny and oppression in said cause; that said relator had procured its submission to a prejudiced judge for trial; and further that the respondent assailed the relator with vile epithets, and threatened to expose him by publishing the said accusations in the newspapers. Upon the filing of the foregoing petition a rule was entered herein that the respondent be cited to appear and show cause why his name should not be stricken from the roll for malconduct in office. The respondent appeared and answered the petition, and a hearing has been had. The answer admits that the facts contained in the petition, descriptive of the respondent's alleged conduct, are substantially true as stated, but denies that he entertained the motives therein charged against him, to-wit, that he intended thereby to embarrass and intimidate the relator in the discharge of his official duties as judge of said courts, or to disgrace him as a judge. There being no traverse of the substantial allegations of fact contained in the petition, for the purpose of testing the intentions of the respondent, an issue was framed presenting the question whether the respondent's conduct and language to Judge Elliott upon the street constituted such malconduct in his office as an attorney at law as to warrant this court in striking his name from the roll. Upon the hearing the respondent was permitted to introduce testimony in mitigation of the offense charged against him, the same matters to be considered in justification, if adjudged admissible for that purpose. Testimony was likewise produced by the relator concerning the same matters of fact mentioned by the respondent's witnesses, and subsequently the case was submitted to the court upon the briefs and arguments of counsel for the respective parties. Upon a careful consideration and review of the whole case, we are of opinion that the respondent's course has been unreasonable and unprofessional throughout. People v. Green. Reprehensible as his conduct has been, there is little doubt that a retraction of his acts and words at any time prior to the submission of the case for our judgment, accompanied by a proper apology to the District judge, manifesting a disposition to make suitable reparation for the indignity offered him, would have caused a dismissal of this proceeding. But the attitude and bearing of the respondent have been, as to the relator, wholly defiant. His position is that he has done nothing wrong; that his conduct was justifiable, and that no occasion exists even for an apology on his part. He makes the further point that the offensive language complained of, having been addressed to Judge Elliott out of court, the same does not constitute a statutory contempt, and for that reason it does not warrant the respondent's disbarment. Such being his disposition and course in the matter, it only remains for us to declare the law applicable to the facts and circumstances of the case. The language of the statute upon the subject of striking an attorney from the roll is broad and plain. It is: "The justices of the Supreme Court, in open court, shall have power, at their discretion, to strike the name of any attorney or counsellor at law from the roll for misconduct in his office." Gen. Stat., p. 136, § 5. The grave and delicate responsibility imposed upon this court, by the statute, is duly appreciated. The profession of an attorney is to him of the highest importance. It comprises his regular means of subsistence. No argument therefore is necessary to show that the power of striking from the roll should be most judiciously exercised. The case should be clearly made out to warrant a removal from the bar, and the removal should appear to be necessary either to the maintenance of that degree of respect which is due to courts and judges, or to preserve the respectability of the legal profession itself. The power should never be arbitrarily exercised. It may be remarked, in this connection, that the statute not only vests this court with a discretion which may be exercised, but by implication it enjoins a solemn duty upon the court, which in a proper case must be exercised. Said Chief Justice MARSHALL, "This discretion ought to be exercised with great moderation and judgment, but it must be exercised." Ex parte Burr, 9 Wheat. 529. A proper regard for the integrity of our honored profession, and VOL. XLIX 45 |