partnership fund, but what, in consequence of being a partner, he may owe to the partnership creditors. Quoad them, his just proportion is what, with reference to the state of the partnership funds, and the ability of the other partners, he may eventually be called on to contribute to the joint debts, so that all those debts may be paid. So, with respect to future engagements, the liability of the continuing partner to perform them is similar to that which the law casts upon the outgoing partner. The latter may, after a dissolution, pledge the credit of the preexisting firm, and his act will have a binding operation upon the remaining partner, if the fact of the dissolution have not been duly and regularly notified. To secure himself, therefore, against such a possible responsibility, it is incumbent on the remaining partner to apprize the world of the retirement of his copartner from the business. We have already stated, that where a total destruction of the trade is not contemplated, but one or more of the partners alone renounce it, it is usually stipulated between them that the joint stock shall become the separate property of the remaining partners; and the validity of transfers made in pursuance of such stipulations has frequently been made a point of discussion in courts of equity. This subject we have already partially considered, and shall examine it more at large when we inquire into the consequences resulting from a dissolution by bankruptcy; but the substance of the determinations upon such questions may here be stated to be, that where there has been a fair dissolution of partnership, and one partner, by agreement, retains the partnership effects, the transmutation is so complete, that even joint property, remaining in specie, is considered as his separate estate (a), if exclusive possession of the joint property were given to him according to the nature of the contract (b). And where the remaining partner of (a) Ex parte Ruffin, Ves. 119. Ex parte Williams, 11 Ves. 3. (b) Ex parte Harris, 1 Mad. 589.

an old firm agreed, on the formation of a new partnership, that all securities for money, shares of ships, and debts due to him in respect of the old house, subject to the debts and engagements affecting the same, should become the joint property of the new firm, according to the proportions of capital agreed to be brought in by the new members, yet, although the new members advanced only part of their stipulated capitals, it was decided that the member of the old firm had not any interest in the securities which belonged to the old house, except as a partner of the new firm (a). But if in such cases the assignment be conditional only, and, in consequence of the non-performance of the condition, the retiring partner file a bill in equity against the remaining partner for an account, alleging fraud in the non-observance of the articles of dissolution, and praying an injunction and receiver, which are ordered, and the remaining partner afterwards become a bankrupt, the subject matter of the assignment retains its original character of joint property (b). It remains to be observed, that where there is not a renunciation by the outgoing partner of his right to his proportion of the joint capital, his co-partner, if he continue the trade after a dissolution, and employ the common capital in it, will be bound to account for the profits which may be derived (c); although, if the profits are made solely by the skill of the remaining partner, it is said to be the practice of a court of equity to allow him a compensation commensurate with his exertions (d). But where the profits arise out of the use of the partnership stock mixed with the separate property of the remaining partner, it has been doubted whether the outgoing partner is entitled to insist upon

(a) Young v. Keighly, 15 Ves. 558. (b) Ex parte Rowlandson, 1 Rose, 416. (c) Brown v. Vidler, cited 15 Ves. 223. Featherstonhaugh v. Fenwick, 17 Ves, (d) See the arguments in Crawshay v. Collins, 15 Ves. 218. See also Brown v. Litton, 1 P. Wms. 142.

298.

a participation (a). A court of equity will enforce an agreement made upon the dissolution of a partnership, that a particular book used in the trade should become the exclusive property of one of the partners, and that a copy of it should be delivered to the other (b).

SECTION III.

The Consequences of a Dissolution by Bankruptcy.

It is now to be considered what are the consequences resulting from the dissolution of a partnership when it is occasioned by bankruptcy.

The questions which have arisen from partnership of bankruptcies are extremely numerous, and many them excessively complicated. We must attempt, by classification and arrangement, to reduce them to something like order and system. It will then be seen that the great men, who, for a century past, have successively held the great seal, and presided over the bankrupt laws, have displayed a peculiar share of learning and discrimination in this intricate and abstruse department of jurisprudence, and have given a series of enlightened, comprehensive, and consistent decrees upon the subject, admirably calculated for the advancement of trade in general, and for the protection of the rights of the parties more immediately interested.

All the partners in a firm may become bankrupt together; or one only may become bankrupt, while the others remain solvent. The first is the most simple case, and we will therefore begin by considering it.

(a) Per Lord Eldon, 15 Ves. 229. (b) Lingen v. Simpson, 1 Sim. and Stu. 600.

.

To sustain a joint commission, it is necessary there should have been a joint trading; but if the trading continue, it matters not that the partnership has been dissolved. Thus, a commission of bankruptcy has been sustained against a partnership on a debt contracted many years after a dissolution, the sale of partnership goods having been continued (a). The enumeration of every trade, which is sufficient to bring a man or a body of men within the operation of the bankrupt laws, would not only be too tedious, but would be foreign to our purpose. They will be found collected and arranged in the various excellent treatises on the bankrupt laws (b). On this branch of the subject, we will merely notice a recent decision (c), in which an acknowledgment by a person that he was in partnership with another as a trader, who afterwards was declared a bankrupt, was held sufficient to constitute a trading, although no acts of buying or selling were proved to have taken place during the partnership.

A second ingredient requisite to the support of a joint commission is, that each of the partners should have committed an act of bankruptcy (d). And formerly, if a commission had been taken out against three partners, and two of them only had committed acts of bankruptcy, the commission was void to all purposes for if all the parties named in it had not been found bankrupts, it could not have been sustained against any (e). In this respect, however, the law is altered by a recent act of parliament (ƒ), which empowers the Lord Chancellor to supersede a commission of bankruptcy as to one or more of the partners without prejudice to its validity against the To sustain a commission against all the mem

rest,

(a) Tarleton v. Backhouse, cited 2 Swanst. 571. See 19 Ves. 464.

(b) See Cook's B. L. (7th ed.) 43. Whitm. B. L. (2d ed.) 7. 1 Mont. B. L. (2d ed.) 4. And see the 6 Geo. 4. c. 16. s. 2.

(c) Parker v. Barker, 3 B. Moore, 226. S. C. 1 Brod. and Bingh. 9. But see Bromley v. King, 1 Ryan and Mood. 228.

(d) Beasly v. Beasly, 1 Atk. 97. Allan v. Hartley, Cooke's B. L. 7.

(e) Id. Ibid.

(f) 6 Geo. 4. c. 16. s. 16,

bers of a firm, the acts of bankruptcy must be committed, either during the trading, or subsequent thereto, and during the existence of a debt contracted when in trade (a). What are the acts which the legislature has declared to be conclusive evidence of the bankruptcy of traders it will be inconsistent with our object to detail; we will therefore content ourselves with referring to the several digests on the subject, in which those acts are enumerated, and the numerous decisions of the courts upon them are noticed (b). There are, however, a few cases in which the validity of joint commissions has been disputed, on the ground of there not being any joint act of bankruptcy to support them, and to these we will briefly advert. Where there were two partners in a concern at Manchester and in London, under different names, and one partner resided at each place, and the London partner, being upon a visit for a few days at Manchester, occasionally attended the counting-house there, and both partners, afraid of an arrest, left the house of business privately, carrying the books of account with them, it was ruled to be an act of bankruptcy in both (c). And where two traders, in partnership, left their shop, and told their shopman that they did so for the purpose of endeavouring to get some bills of exchange discounted, and directed him to say that they were not in the way, or to make some excuse for them, in case a creditor should call, and a creditor having called on that and the following day when they were both at home, and desired to see either the one or the other of them, the shopman, without further authority, denied them, to which they, being afterwards informed of it, did not object, it was held that the jury were warranted in concluding that they absented themselves from

(a) Ex parte Bamford, 15 Ves. 449. Ex parte Dewdney, Ibid. 495. (b) Co. B. L. 72. Whitm. B. L. 18. 1 Mont. B. L. 31. See also 6 Geo. 4. c. 16. s. 3, 4, 5, 6, and 8.

(c) Spencer v. Billing, 3 Campb. 312.