as against the party to the notice, even if the partnership articles require a dissolution by deed. (b)

But if the partners have formed a partnership by articles for a definite period, in that case, it is said, that it cannot be dissolved without mutual consent before the period arrives. (c)1 This is the assumed principle of law by Lord Eldon, in Peacock v. Peacock, (d) and in Crawshay v. Maule, (e) and by Judge Washington, in Pearpont v. Graham; (ƒ) and yet, in Marquand v. New York Man. Company, (g) it was held that the voluntary assignment by one partner of all his interest in the concern dissolved the partnership, though it was stipulated in the articles that the partnership was to continue until two of the partners should demand a dissolution, and the other partners wished the business to be continued, notwithstanding the assignment. And in Skinner v. Dayton, (h) it was held by one of the judges, (i) that there was no such thing as an indissoluble partnership. It was revocable in its own nature, and each party might, by giving due notice, dissolve the partnership as to all future *55 capacity of the firm to bind him by contract; and he had the same legal power, even though the parties had covenanted with each other that the partnership should continue for such a period of time. The only consequence of such a revocation of the partnership power in the intermediate time would be, that the partner would subject himself to a claim of damages for a breach of the covenant. (a) Such a power would seem to be implied in the capacity of a partner to interfere and dissent from a purchase or contract about to be made by his associates; and

(b) Doe dem. Waithman v. Miles, 1 Starkie, 181; Collyer on Partn. 154; Story on Partn. [§ 271.]

(c) Gow on Partn. 303, 305, ed. Phil. 1825.

(d) 16 Ves. 56.

(f) 4 Wash. 234.

(h) 19 Johns. 538.

(e) 1 Swanst. 495.

(g) 17 Johns. 525; 1 Whart. 381, 388, s. p. (i) Mr. Justice Platt.

(a) In Bishop v. Breckles, 1 Hoff. Ch. 534, it was considered to be rather doubtful whether either party might dissolve the partnership at pleasure, upon due notice, and yet the rule of the civil law was deemed the most reasonable. But Mr. Justice Story, in his Commentaries on Partnership, [§ 275,] considers it quite unreasonable to allow a partner to dissolve the partnership sua sponte from mere caprice and to the great injury of the concern, and that it ought not to be done, except under reasonable circumstances. See infra, 61.

1 Smith v Mulock, 1 Robertson, (N.Y.) 569. As to the principle of Marquand's

case, mentioned in the text, see the cases cited 59, n. 1.

the commentators on the Institutes lay down the principle as drawn from the civil law, that each partner has a power to dissolve the connection at any time, notwithstanding any convention to the contrary, and that the power results from the nature of the association. They hold every such convention null, and that it is for the public interest that no partner should be obliged to continue in such a partnership against his will, inasmuch as the community of goods in such a case engenders discord and litigation. (b)

The marriage of a feme sole partner would likewise operate as a dissolution of the partnership; because her capacity to act ceases, and she becomes subject to the control of her husband; and it is not in the power of any one partner to introduce, by his own act, the agency of a new partner into the firm. (c)

(2) By Death. The death of either party is, ipso facto, from the time of the death, a dissolution of the partnership, however numerous the association may be. The personal qualities of 56 each partner enter into the consideration * of the contract,

and the survivors ought not to be held bound without a new assent, when, perhaps, the abilities and skill, or character and credit, of the deceased partner, were the inducements to the formation of the connection. (a) Pothier says, that the representatives of the deceased partner are bound by new contracts made in the name of the partnership by the survivor, until notice be given of the death, or it be presumed to have been received. (b) But Lord Eldon was of opinion that the death of the partner did, of itself, work the dissolution; and he was not prepared to say, notwithstanding all he had read on the subject, that a deceased partner's estate became liable to the debts of the continu

(b) Adeo autem visum est ex natura esse societatis unius dissensu totam dissolvi, ut quamvis ab initio convenerit, ut societas perpetuo duraret, aut ne liceret ab ea resilire invitis cæteris; tamen tale pactum, tanquam factum contra naturam societatis, cujus in æternum nulla coitio est, contemnere licet. Vinnius, in Inst. 3. 26. 4, pl. 1; Ferrière, ib. v. 156; Dig. 17. 2. 14; Dumat, b. 1, tit. 8, sec. 5, and art. 1 to 8, by Strahan.

(c) Nerot v. Burnand, 4 Russ. 260.

(a) Pothier, Traité du Con. de Soc. n. 146; Inst. 3. 26. 5; Vinnius, h. t.; Pearce v Chamberlain, 2 Ves. Sen. 33; Lord Eldon, Vulliamy v. Noble, 8 Meriv. 614; Crawshay v. Maule, 1 Swanst. 509, and note, ib.

(b) Pothier, Traité du Con. de Soc. n. 156, 157. The Roman law also required notice to the surviving partners of the death of any partner, before that event dis solved the partnership. Dig. 17. 2. 65. 10.

ing partners, for want of notice of such dissolution. (c) 1 In the Roman law, and in the commentaries of the civilians, every subject connected with the doctrine of partnership is considered with admirable sagacity and precision; but, in this instance, the rule was carried so far, that even a stipulation that, in the case of the death of either partner, the heir of the deceased should be admitted into the partnership, was declared void. (d) The provision in the Roman law was followed by Argou, in his Institutes of the old French law. (e) Pothier was of opinion, however, that the civil law abounded in too much refinement on this point; and that if there be a provision in the original articles of partnership for the continuance of the rights of partnership in the representatives of the deceased, it would be valid. (f) His opinion has been followed in the Code Napoleon ; (g) and in the English law, such a provision in the articles of partnership for the benefit of the representatives of a deceased partner, * 57 is not questioned; and it was expressly sustained by Lord Talbot. (a)

(e) Crawshay v. Collins, 15 Ves. 228; Kidder v. Taylor, cited in Gow on Partnership, 250; Vulliamy v. Noble, 3 Meriv. 614. The laws of Louisiana do not recognize any authority in a surviving partner, and he cannot administer the effects of the partnership until duly appointed administrator. Notrebe v. McKinney, 6 Rob. (La.) 13. (d) Dig. 17. 2. 35, 52, 49. [52, § 9?]

(e) Inst. au Droit François, 1, 3, c. 23. (f) Pothier, ub. sup. n. 145.

(g) Art. 1868.

(a) Wrexham v. Huddleston, 1 Swanst. 514, note; Crawshay v. Maule, 1 Swanst. 521; Collyer on Partn. 5, 6. See, also, Pearce v. Chamberlain, 2 Ves. Sen. 33; Balmain v. Shore, 9 Ves. 500; Warner v. Cunningham, 3 Dow, 76; Gratz v. Bayard, 11 Serg. & R. 41; Scholefield v. Eichelberger, 7 Peters, 586. If one partner, by will, continues his share of stock in a partnership for a definite period, and the partnership be continued after his death, and becomes insolvent, the partnership creditors have no claim over the general creditors to the assets in the hands of the representatives of the deceased, except as to the assets vested in the partnership funds. Ex parte Garland, 10 Ves. 110; Pitkin v. Pitkin, 7 Conn. 307; Thompson v. Andrews, 1 My. & Keen, 116. In the case of The Louisiana Bank v. Kenner's Succession, 1 La. 384, after an extensive examination of the commercial laws and usages of Europe and the United States, it was considered to be a doubtful point, whether stipulations in contracts of partnership, that they may be continued after the death of one of the part

1 And it was directly decided that it did not in Marlett v. Jackman, 3 Allen, 287; see Bilton v. Blakely, 7 Grant, Ch. (U. C.) 214, 216; (as to cases of simple agency, ante, ii. 646, n. 1; Jacques v. Worthington, 7 Grant, U. C. 192,) death being said to be a public fact of

which all must take notice. But compare Bank of New York v. Vanderhorst, 32 N. Y. 553. And as to the effect of the death of a member of a joint-stock company, see Baird's Case, L. R. 5 Ch. 725, 734. As to the power of the survivors to sell firm property, post, 64, n. 1.

A community of interest still exists between the survivor and the representatives of the deceased partner; and those representatives have a right to insist on the application of the joint property to the payment of the joint debts, and a due distribution of the surplus. So long as those objects remain to be accomplished, the partnership may be considered as having a limited continuance. If the survivor does not account in a reasonable time, a court of chancery will grant an injunction to restrain him from acting, and appoint a receiver, and direct the accounts to be taken. (b) If the surviving partner be insolvent, the effects in the hands of the representatives of the deceased partner are liable, in equity, for the partnership debts; and it is no objection

1

to the claim that the creditor has not used due diligence in * 58 prosecuting the surviving partner before * his insolvency; for the debt is joint and several, and equally a charge upon the assets of the deceased partner and against the person and estate of the survivor. (a)1

ners for the benefit of the heirs, were binding on the latter without their consent. They were not so binding in Louisiana at the time of the adoption of the code of 1808. The better opinion is, that they are not any where absolutely binding. It is at the option of the representatives; and if they do not consent, the death of the party puts an end to the partnership. If no notice or dissent be given, it is said that a continuation of the partnership will be presumed. Pigott v. Bagley, M'Clel. & Y. 569; Kershaw v. Matthews, 2 Russ. 62; Collyer on Partn. 120-122. If the survivor carries on the business without the assent of the representatives of the deceased partner, they have their election to take a share of the profits or interest on the amount of their share. Millard v. Ramsdell, Harr. Ch. (Mich.) 373. [Bernie v. Vandever, 16 Ark. 616.] The general principle is, that the assets of a deceased partner are not liable for debts contracted after the testator's death, except under the direction of his will, authorizing such continuance of the trade; and new creditors are confined to the funds embarked in such trade, and to the personal responsibility of the party who continues the trade, whether as executor, trustee, or partner, unless the testator had, by will, bound his general assets. Burwell v. Mandeville, 2 How. 560.

(b) Ex parte Ruffin, 6 Ves. 126; Hartz v. Schrader, 8 Ves. 317; Ex parte Williams, 11 Ves. 5; Peacock v. Peacock, 16 Ves. 57; Wilson v. Greenwood, 1 Swanst. 480; Crawshay v. Maule, ib. 506; Murray v. Mumford, 6 Cowen, 441; 16 Johns. 493.

(a) Hamersley v. Lambert, 2 Johns. Ch. 508; Miss Sleech's Case, in Devaynes v. Noble, 1 Meriv. 539. The creditors of the firm may sue the surviving partner, and

1 Post, 61, n. 1; 63; Madgwick v. Wimble, 6 Beav. 495; Walker v. House, 4 Md. Ch. 39; Bilton v. Blakely, 7 Grant, Ch. (U. C.) 214, 216; Horrell v. Witts, L. R. 1 P. & D. 103.

See on the point to which Ex parte Garland is cited, in note (a), sup. Cutbush

v. Cutbush, 1 Beav. 184; M'Neillie v. Acton, 4 De G., M. & G. 744; Scott v. Izon, 34 Beav. 434; Richter v. Poppenhusen, 39 How. Pr. 82.

See as to the personal liability of the executor or trustees, ante, 33, n. 1.

See Brown v. Douglas, 11 Sim. 283:

(3) By Insanity. - Insanity does not work a dissolution of partnership, ipso facto. It depends upon circumstances under the sound discretion of the Court of Chancery. But if the lunacy be confirmed, and duly ascertained, it may now be laid down as a general rule, notwithstanding the decision of Lord Talbot to the contrary, that as partners are respectively to contribute skill and industry, as well as capital, to the business of the concern, the inability of a partner, by reason of lunacy, is a sound and a just cause for the interference of the Court of Chancery to dissolve the partnership, and have the accounts taken, and the property duly applied. (b) 2

(4) By Bankruptcy. - Bankruptcy or insolvency, either of the whole partnership or of an individual member, dissolves a partnership; and the assignees become, as to the interest of the bankrupt or insolvent partner, tenants in common with the solvent partners, subject to all the rights of the other partners; and a community of interest exists between them until the

the representatives of the deceased partner, for payment out of the assets of the deceased, and without showing that the surviving partner was insolvent. Wilkinson v. Henderson, 1 My. & Keen, 582. A surviving partner may set off a debt of the partnership against a demand against him in his own right, for he has the exclusive control and settlement of the business. Slipper v. Stidstone, 5 T. R. 493; Craig v. Henderson, 2 (Barr) Penn. St. 261.

(b) Wrexham v. Huddleston, cited in 1 Swanst. 514, note; Sayer v. Bennet, 1 Cox, 107; Waters v. Taylor, 2 Ves. & B. 301; Jones v. Noy, 2 My. & Keen, 125; Milne v. Bartlett, Atkin & Wyatt, April, 1839. See ii. lec. 41, ad finem. The general rule mentioned by Spencer, J., in 15 Johns. 57, that insanity works a dissolution of a partnership, must be taken with the limitations in the text. Story on Partn. [$ 295.]

Kimball v. Whitney, 15 Ind. 280; Vance v. Cowing, 13 Ind. 460; Camp v. Grant, 21 Conn. 41; Fillyau v. Laverty, 3 Fla. 72. In New York the English doctrine stated in note (a) is not followed, but it is held that the joint creditors have no claim in equity against the estate of the deceased partner, except when the surviving partners are insolvent, or have been proceeded against to execution at law. Patterson v. Brewster, 4 Edw. Ch. 352; Lawrence v. Trustees of Orphan House, 2 Den. 577; post, 64, n. (c); Voorhis v. Childs, 17 N. Y. 354; Bennett v. Woolfolk, 15 Ga. 213.

VOL III.

The doctrine of Slipper v. Stidstone, note (a), is not followed in equity, and the case is criticised in Lindley on P. 2d ed., 517, 524, citing Addis v. Knight, 2 Mer. 117.

2 Leaf v. Coles, 1 De G., M. & G. 171; Anon., 2 K. & J. 441; Rowlands v. Evans, 30 Beav. 302. But see Davis v. Lane, 10 N. H. 156, 161. In Isler v. Baker, 6 Humph. 85, it was held that an inquisi tion of lunacy found against a partner ipso facto dissolved the partnership, which seems to be contrary to the English cases.

[65]