has been dissolved, and the solvent partner has paid all the debts, he may sustain a fiat against his copartner (a).

The right to a fiat is, in a qualified sense, a legal right, like that of an action; and as Courts of justice have no concern with the motives of parties who assert a legal right, a fiat will be sustained, although one object of the petitioning creditor be to dissolve the partnership existing between the bankrupts, if it appear that he bond fide intends to carry on the fiat (b). But a fiat issued merely for the purpose of dissolving the partnership, or enforcing payment of a disputable partnership debt (c), is supersedable (d).

IV. There are some cases in which, though a fiat against partners may be void at law, it will be recognised by the Court of bankruptcy to this extent-that the Court will either refuse to annul it, or, for the purpose of sustaining it, will go the length of removing out of the way a prior legal fiat.

Thus, at law, a fiat in bankruptcy, issued against an infant, is not merely voidable, but void (e). But where an infant partner has taken an active part in the business of his partnership, and has induced persons to give him credit as a party of full age, the Court of bankruptcy will not annul the fiat in his behalf, but leave him to his remedy at law (f). However, the mere circumstance that his name was used in the firm, is not a sufficient ground for dismissing his petition to have the fiat annulled (g).

Again, notwithstanding that a joint fiat against partners, one of whom has been attainted of felony, may be void at law, yet it may be a question whether the Court of bankruptcy

144; Ex parte Notley, 1 Mont. & A. 46; Ex parte Gray, 2 M. & A. 283. But a fiat may be supported on a petitioning creditor's debt, which is composed partly of a partnership debt, if the remainder is in itself sufficient. Ex parte Richardson, 3 D. & C. 244. In West v. Skip, one partner sued out a commission against his copartner on a partnership debt.

(a) Ex parte Nokes, Mont. Partn. 62, App. See Antram v. Chase, 15

would not permit the felon to be included in a joint fiat where complicated matters of account are involved (a).

The cases in which the Court will sustain a joint fiat, notwithstanding its invalidity at law, will be noticed in a subsequent chapter (b).

V. Under a joint bankruptcy, not only the joint but the separate property also passes to the assignees (c). Under a joint commission against father, (tenant for life), and son, (tenant in tail), it was held, that the assignees took an estate for the life of the father with a base fee in remainder, determinable on the failure of the estate tail (d).

Under a separate bankruptcy, all the separate property, and such part of the joint property as the bankrupt himself would be entitled to, passes to his assignees (e).

Under a separate bankruptcy, the assignees become tenants in common with the solvent partners, or their representatives, and hold the bankrupt's undivided share of the partnership effects, from the time of the act of bankruptcy, subject to the rights of the solvent partners (f).

The assignees under a separate bankruptcy have a right to the share, not only of the partnership effects remaining in specie, but of the profits of adventures outstanding at the time of the bankruptcy (g). They are likewise entitled to the outstanding instalments due from the solvent partner for his admission into the partnership (h); as also to a share of the profits of the trade carried on, after the bankruptcy by the solvent partner, with the capital of the original partnership (i). It

(a) Ex parte Addison, supra. (b) See post, Chap. 3, sect. 7. (c) Ex parte Cooke, 2 P. W. 500; Ex parte Baudier, 1 Atk. 98; Hague v. Rolleston, 4 Burr. 2174.

(d) Jervis v. Tayleur, 3 Barn. & Ald. 557.

(e) Horsey's case, 3 P. Wms. 23; Eddie v. Davidson, Doug. 627; Bolton v. Puller, 1 Bos. & Pull. 539; Barker v. Goodair, 11 Ves. 85.

(f) West v. Skip, 1 Vez. 232; Fox v. Hanbury, Cowp. 445; Tay

P P

has, however, been laid down by Lord Tenterden as a general principle of law, that if one partner becomes a bankrupt, his assignees can obtain no share of the partnership effects, until they first satisfy all that is due from him to the partnership (a); which opinion is in accordance with the general rule just stated, that they hold the bankrupt's share of the partnership effects subject to the rights of the solvent partners. Hence, where certain part-owners of ships were likewise engaged as partners in adventures, and the practice was to divide the produce of the adventure in shares, but no partner's share was delivered to him till his share of the disbursements was paid; upon the bankruptcy of one of the partners, it was held that his assignees could not maintain trover against the other partners for his share of the produce of an adventure, till his share of the disbursements had been discharged (b).

The assignees of a bankrupt partner are not in the situation of copartners with those who remain solvent, for the purposes of carrying on the trade, though they may be considered as copartners for the purpose of winding up the concern. However, if no account be entered into immediately, and the solvent partners continue to trade with the capital of the original partnership, (which is equivalent to the assignees continuing the trade with the solvent partners), it cannot be objected to a bill brought by the assignees for a share of the profits of the continued business, that they did not, as soon as possible, call upon the solvent partners to account; for, the obligation to settle the partnership accounts is not more imperative on the part of the assignees, than upon the solvent partners (c). And even with regard to trading by the assignees, Lord Eldon has said that the proposition would be rash, that there can be no case in which they could trade with consent of the creditors, or of the creditors and the bankrupt together. If they had

(a) 8 Barn. & Cres. 618; Goss v. Dufresnoy, Davies, B. L. 371.

(b) Holderness v. Shackels, 8 Barn. & Cres. 612; 3 Man. & Ry. 95. In this case it appeared that the bankrupt's share had been weighed out, and placed separately in the warehouse in casks marked with his initials. But Lord Tenterden observed,

that this was not an absolute appro-
priation of the cask and its contents
to the bankrupt, but only a quali-
fied appropriation, enabling him to
take the goods, unless notice was
given that his share of the disburse-
ments had not been paid.
(c) 15 Ves. 228.

the consent of all persons interested, he did not think that other persons with whom they might deal could make the objection. The duty was not as between them and the other persons, who were not properly to be termed remaining or surviving partners; the destruction of one being, unless it was otherwise provided, a dissolution of the whole partnership (a).

As the obligation implied among partners is, that they are to use the joint property for the benefit of all whose property it is (b), and as the assignees of a bankrupt partner stand precisely in his situation, it is clear that, when such a course is beneficial to the bankrupt's estate, and he has not been bound by stipulation, the assignees may insist upon a sale of the whole property (c). But the assignees have no right to sell any part of the joint effects, where no necessity for the sale exists, and the solvent partners are able and willing to account for the share of the bankrupt partner, and to indemnify them against the joint creditors. Accordingly, upon a bill filed, and an affidavit at the instance of a solvent partner, to restrain the assignees of a bankrupt from selling the joint effects, an injunction has been allowed (d).

The whole of the bankrupt's property vests in the assignees absolutely, so as to give them precisely the same rights and remedies, with relation to it, as if the property vested in them in their own right individually. They have the same remedies by action, for the recovery of debts due to the bankrupt, and for all civil injuries with respect to property which has passed to them under the bankruptcy, that the bankrupt would have had, if no fiat had been sued out against him (e).

(a) 15 Ves. 227.

(b) Ante, p. 118.

(c) Crawshay v. Collins, 15 Ves. 218; 2 Hov. Supp. 403.

(d) Allen v. Kilbre, 4 Madd. 464. In this case, the bill contained no offer to pay the joint creditors, though it offered to account for the share of the bankrupt partner. Ergo quære. In Ex parte Montgomery, 1 Glyn & Jam. 338, which was an application by creditors to restrain the assignees from a sale of the bankrupt's effects, on the ground

Hence,

of suspicious circumstances in the intended mode of sale, Lord Eldon thought the Court could not interfere, as the assignees acted at their own risk, and on their own responsibility, and they, and not the Court, were to be the judges of the propriety and expediency of the sale. But see Ex parte Figes, 1 Glyn & Jam. 122.

(e) See Archb. B. L. 245. See post, Chap. 3, sect. 4. If upon the dissolution of the partnership between two persons, solicitors of the

when the bankruptcy is separate, the solvent partners must join with the assignees in an action for the recovery of joint debts, or application must be made to the Lord Chancellor, under the 6 Geo. 4, c. 16, s. 89, for leave to prosecute the action in their names, jointly with those of the assignees.

VI. Under a joint bankruptcy, the administration of the bankrupt's estate, both joint and separate, takes place in the bankruptcy (a). In the case of a separate commission, it was formerly the custom to administer the separate estate in the bankruptcy, and the joint estate in a suit in equity, instituted by the joint creditors against the assignees and solvent partners; but Lord Loughborough observed, that the consequence of this rule was, that what he ordered one day sitting in bankruptcy, he forbade the next day sitting in Chancery, it being quite of course to stop the dividend on the joint estate, upon a bill filed. His Lordship, accordingly, adverting to the needless expense of a Chancery suit in almost every case, altered the rule; and the result is, that, under a separate fiat of bankruptcy, the other partners remaining solvent, an account is directed of the joint estate, (in the absence even of the other partners, when abroad), and the whole account is taken in the bankruptcy (b).

It should be remarked, however, that there is an exception to this practice in the case of a mine (c).

VII. With regard to the debts proveable under a fiat against partners, little need be said as connected with the particular subject of partnership. It may be observed, however, that where one partner becomes a bankrupt, and is indebted to his

bankrupt, it is agreed, that the remaining partner shall pay the partnership debts, and the assignees of the bankrupt, with notice of this agreement, continue to employ the remaining partner, the Court of Bankruptcy will not, on the application of the assignees, interfere to charge the retiring partner. Ex parte Gould, 2 Mont. & A. 48.

(a) Ord. Loughborough, 8th March, 1794.

(b) Ex parte Elton, 3 Ves. 242; Dutton v. Morrison, 17 Ves. 209; Barker v. Goodair, 11 Ves. 85; Ex parte Farlow, 1 Rose, 421. But in taking the account, the Court of Bankruptcy has not jurisdiction to order the solvent partner to deliver up the partnership books; Ex parte Finch, 1 D. & C. 274; though the assignees have a right to inspect them.

(c) Post, Book v. ch. 3.