Opinion.— Held, that under the issues and facts of this case, it was not essential to the correctness of the conclusions of law found by the judge that he should have found as a conclusion of fact that the firm of E. & H., and the individual members composing .it, were insolvent at the time H. sold out his interest in the business to his partner.

It is held in Blum v. Welborne, 58 Tex., 164, “ that no act of the assignee nor act of the assignor, at the time the assignment is made or preceding it, but even in contemplation of it, however fraudulent the act may be, shall divest the ' right of creditors to have the estate administered for their benefit in accordance with the spirit of the statute.”

The point urged by appellant under the various assigned errors is in fact that, notwithstanding the transaction was hona fide and fairly intended as between the parties to it, yet, as it withdrew partnership effects, such transaction constituted a constructive fraud on the rights of the creditors of the firm. The above quoted decision applies, and appellants must seek the enforcement of their debt against the assets of the firm in the manner provided for under the law regulating assignments, and in the ordinary modes provided for under the general laws, as creditors generally. They cannot subject the property to attachment.

Affirmed.