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of the whole society, unless provision is expressly made to the contrary (a).

The Roman lawyers lay great stress on the doctrine just adverted to. The Digests abound in clauses shewing that the death of one partner is the dissolution of the whole society (b). And the reason given by Pothier for this rule, arising as it does from the delectus personæ, by which each partner is supposed to be actuated on entering into the contract, is applicable not only to dissolution by death, but every species of dissolution. La raison est que les qualités personnelles de chacun des associés entrent en considération dans le contract de société; je ne dois donc pas être obligé lorsque l'un de mes associés est mort, a demeurer en société avec les autres, parce qu'il se peut faire que ce ne soit que par la considération des qualités personnelles de celui qui est mort, que j'ai voulu contracter la société (c).".

The principle which has just been set forth, and which in general terms is no other than this-that the dissolution of the society as to one partner is the dissolution as to all-is one of considerable importance. It helps to mark out clearly the basis and boundary of all accounts which are to be taken between the partners. And, although, for the purpose of winding up the concern, and fulfilling engagements which could not be fulfilled during its existence (d), the partnership certainly subsists even after a dissolution, yet, legally and strictly speaking, it subsists for those purposes alone.

I. 3. A partnership for a term may be dissolved before the expiration of the term, by the mutual consent of the parties; by the decree of a Court of equity (e); or by the bankruptcy,

(a) Kinder v. Taylor, Gow, Partn. 240. "Where several are partners, and one dies, Lord Eldon seems to treat the death of one as a dissolution of partnership as to the survivors. Crawshay v. Collins, 15 Ves. 228. The same in the case of the bankruptcy of one." Cooke's MSS. (b) See them collected in Mr. Swanston's valuable note to Crawshay v. Maule, 1 Swanst. 509.

(c) Pothier, Traité du contract de

Société, c. 8, s. 3, p. 141. And see
Vinn. Comm. 634.
(d) 15 Ves. 227.

(e) It seems that in America, upon principles drawn from the Roman law, a partner may dissolve the partnership at any time, even though it be for a term; the only remedy being by action on the covenant for endurance. See Skinner v. Dayton, 19 Johns. 538; 3 Kent's Comm. 55.

outlawry, felony (a), or death (b) of one or more of the partners. It will likewise be dissolved by the expiration of the term, or, in other words, by effluxion of time. But as the law has permitted the partners to limit the duration of the contract, so it has allowed them, except in cases of bankruptcy (c) or felony, to qualify the causes of its dissolution. For instance, in the case of the death of a partner, the partnership may nevertheless be continued beyond the legal period of dissolution, in the hands of his children or representatives.

II. The partnership quoad third persons, or in other words the liability of partners quoad third persons, cannot be dissolved without express notice to them, and to the world in general, that the partnership no longer exists. There is an exception to this rule in the case of a dormant partner. If the fact of his being in partnership be unknown to all the creditors of the firm, notice of his retirement is unnecessary; if it be known to a few, notice to those few is sufficient (d). It may also be laid down, that, upon the death of a partner, notice of the dissolution to third persons is not necessary (e). But in all other cases, they who are anxious to avoid fresh liability in respect of the late copartnership, must give notice of its dissolution. Even where one partner has committed an act of

(a) Ante, p. 71.

(b) Crawford v. Hamilton, 3 Madd. 254; Scholefield v. Eichelburger, 7 Peters. S. C. R. 594.

(c) However, it seems open to argument, that an agreement, "that if any of the partners shall become bankrupt, the partnership shall nevertheless be continued after allowance of his certificate," would be good. An agreement of this kind, though extraordinary, has been known.

(d) Evans v. Drummond, 4 Esp. 89. But, in the case of Kay v. Pollock, the Court of Session held that publication of the dissolution of an anonymous partnership is necessary, if the partnership be known to any

one creditor. See 2 Bell Comm. 652. For more on this subject, see post, Book 3, chap. 3, s. 3.

(e) D. Lord Eldon, Vulliamy v. Noble, 3 Mer. 614-"I conceive that the death of a partner, of itself, works a dissolution of the partnership; and I am not prepared to say, notwithstanding all I have read on the subject, that a deceased partner's estate becomes liable to the debts of the continuing partners, for want of notice of such a dissolution." D. Lord Thurlow, Webster v. Webster, 3 Swanst. 490, n.-" It is impossible, that using the testator's name in the trade can subject his name to the trade debts."

bankruptcy, although it will be injurious to the credit of the firm for the solvent partners to give notice of such an act, yet, if there be reason to apprehend that a fiat will be issued against him, it may be prudent to restrict his powers of negotiating the partnership securities, and to give notice to the world of such arrangement (a).

What constitutes a valid notice, is a point which will be considered in discussing the liabilities of a retiring partner (b).

SECTION III.

The Effect of the Dissolution.

THE effect of a dissolution of partnership as between the partners themselves is to put an end to all transactions between them as partners, except for the purpose of taking a general account, and winding up the concern. It follows, that all leases held of an individual partner, during the continuance of the partnership, by the members of the firm, as partners, are determined by the dissolution of the partnership; and the lessor may enter without giving notice to quit (c).

As to third persons, the effect of a dissolution of partnership is, to absolve the partners from all liability for future transactions, but not for the transactions of the partnership that is past. Therefore, a general dissolution of partnership made between A. and B. does not operate to discharge A. from his responsibility for the subsequent conduct of B. in respect of the engagements of the partnership with third persons, made prior to the dissolution (d).

(a) See and consider Lacy v. Woolcott, 2 D. & R. 458.

(b) Post, Book 3, chap. 3, s. 3.

(c) Doe v. Miles, 1 Stark. 181; Doe v. Bluck, 8 C. & P. 464.

(d) Ault v. Goodrich, 4 Russ. 430.

76

BOOK THE SECOND.

OF THE MUTUAL RIGHTS OF PARTNERS.

CHAPTER I.

OF THE INTEREST OF THE PARTNERS IN THE PARTNERSHIP STOCK.

WE shall direct our consideration, in the present chapter, to

the interest of the partners as well in the real as in the moveable property of the firm and we shall endeavour to examine, first, the nature of the interest; secondly, the distribution of the interest.

SECTION I.

Of the Nature of the Interest.

In the words of Lord Hardwicke, "the partners themselves are clearly joint tenants in the stock and all effects. They are seised per my et per tout (a)." However, though they are joint tenants of all the partnership stock during their lives, yet, at least in such part of it as is moveable, there is no survivorship either at law or in equity. Lord Coke (b), in commenting upon a passage of Littleton, in which it is said, that the right of survivorship shall hold between joint tenants, of things personal as well as of things real, observes, that "an exception is

(a) 1 Vez. 242.

(b) Co. Litt. 182. a. See likewise

1 Roll. Abr. C.; Comm. Dig. tit. “Merchant,” (D.)

to be made of two joint merchants; for the wares, merchandizes, debts, or duties that they have as joint merchants or partners, shall not survive, but shall go to the executors of him that deceaseth: and this is per legem mercatoriam, which is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet."

It seems clear, that, at the time Lord Coke wrote, the distinction between merchants and traders in general had been fully established. It is probable, therefore, that in this passage he only referred to merchants properly so called, namely, those who export the native products and manufactures of the kingdom or her colonies to foreign climes, or import the commodities of different countries into this kingdom (a). But, however this may be, Lord Keeper Harcourt observed, that, in his time, the custom of merchants was extended to all traders, to exclude survivorship (b); and the custom so extended has never since been contravened.

II. It may be laid down as a general principle, that each of the partners has a specific lien on the partnership stock, not only for the amount of his share, but for monies advanced by him beyond that amount for the use of the copartnership, as also for monies abstracted by his copartner beyond the amount of his share (c). In the words of Lord Hardwicke, “when an account is to be taken, each is entitled to be allowed against the other every thing he has advanced or brought in as a partnership transaction, and to charge the other in the account with what the other has not brought in, or has taken out more than he ought; and nothing is to be considered his share, but the proportion of the residue on the balance of the account."

It follows from this principle, that, if a partner take the whole, or any part of his share out of the partnership stock, the stock so taken, if identified, is applicable to the payment of what, upon an account taken, shall be found to be due from

(a) Beawes, 31.

(b) Jeffereys v. Small, 1 Vern. 217. There must be some mistake in the report of Newell v. Townsend, 6 Sim.

420.

(c) West v. Skip, 2 Vez. 142; Ex parte Ruffin, 6 Ves. 119.

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