delivered the opinion of the Court, While a co-partnership is solvent and going on, the creditors, strictly speaking, have no equity against the assets *303 of the partnership. Hence the company may sell any portion of the joint property to one of the partners, and, if such sale be in good faith and for a valuable consideration, it will be valid against any claim by the partnership creditors. And, even in case of a dissolution of the company where such dissolution is voluntary, the partners may agree that the joint property of the firm shall belong to one of them, and, if such agreement be bona fide and for a valuable consideration, it 'will transfer the whole property to such partner, free from the claims of the company creditors. Story on Part. § 358 and the cases there cited.

This results from the rule, that the application of the company property to pay company debts is the equity of the partners and not of the creditors, and, if waived by the partners in good faith, the creditors are bound.

So the firm may, in good faith and for a valuable consideration, give a note to one of the partners and the en-dorsee of such note may enforce it at law against the company. Smith v. Lusher, (5 Cowen 688.) Burney et al. v. Lyman, (1 Story 423.) It is valid and can be enforced in equity against the partner, the original promisee.

If the firm can make a valid note to one of the partners, they may make a valid mortgage to secure its payment.

In this view of the law, it is immaterial whether Hunt was a partner or not, at the time he received the notes and and mortgage in question. They were given in good faith and for a valuable consideration, and so far from any view to the bankruptcy of the company, that, at the time they were given, Hunt agreed to become partner in the firm and to assume the debts and did assume them.

But if Hunt had retained the notes and mortgage until the company had gone into bankruptcy, he could not be permitted to enforce them against the assets of the com *304 pany, to the exclusion of the company creditors, or pari passu with them. Being himself liable to these creditors he could make no claim until they were paid.

Instead of retaining the notes and mortgage, Hunt sold and endorsed one of the notes to Mr. Chandler in February, 1849; for cash, and, in Ma3r following, assigned the mortgage and endorsed the other note to Mr. Stimson, as collateral security for his endorsement of the notes of Hunt to the amount of three thousand dollars.

At the time of these transactions and for several months afterwards, the company continued to carry on their usual business. We think the loan of money by Mr. Chandler and of credit by Mr. Stimson was made in good faith on the part of these gentlemen. We think Mr. Hunt also acted in good faith in the matter, and, so far from having any view at the time to the insolvency of the company, his object was to strengthen their credit and enable them to go on with their business.

Mr. Chandler, When he received the note, did not take any assignment of the mortgage, but he is equally entitled to the benefit of the mortgage security to the extent of his debt. Mr. Stimson’s endorsement, was to the amount of three thousand dollars, which he has since paid. The plaintiif contends he is entitled to a dividend, out of the proceeds of the mortgage, on this account only, and the remaining five hundred dollars are to be considered as belonging to Hunt, and so not to be paid out of the proceeds of the mortgage. In our opinion Stimson as holder of the note is entitled to a dividend on the whole amount thereof, until he is paid the full sum due him.

Bill dismissed with costs to the respondents, costs to be a charge on the general fund.