of the partnership debts. The partnership was dissolved upon these terms, and B entered into a fresh partnership with the plaintiff. B having become bankrupt, and the fund having proved insufficient, A, who had got the book into his possession, refused to deliver it up until B's estate should have been applied to make up one moiety of the deficiency. Upon a bill filed by B's partner to enforce his right to have a copy of the book made and delivered to him, it was decreed according to the prayer of the bill, with costs. Sir J. Leach, in delivering judgment, observed that if this reference book remained partnership property, it would be unquestionable that the plaintiff could not be entitled to relief without a general arrangement of the partnership concerns; for, until such general arrangement, no partner could claim an exclusive right in any article of the partnership property. But, upon a dissolution, any part of the partnership property might, by contract of the partners, be converted into the separate individual property of either; and it was clear here that, upon the dissolution, the book became the separate property of B, subject to the delivery of the copy to the defendant, and the interim inspection. The plaintiff's claim, therefore, did not refer to any article of partnership property. Where a retiring part

1 Lingen v. Simpson, S. 1 & S. 600. By a deed of dissolution of a partnership, the retiring partner agreed to as sign to the continuing partner all his share in the partnership property, subject to the payment of the retiring partner's share of the debts, and it was agreed that a deed should be executed by which the continuing partner should covenant to pay the debts, and to indemnify the retiring partner and his estate therefrom. No further deed was executed. The continuing partner, six years afterward, assigned a policy of assurance which had formed part of the partnership property, to a mortgagee for securing money lent, the mortgagee having had notice of the deed of dissolution. The continuing partner became bankrupt, having neglected to pay some of the debts of the partnership, and such debts were recovered against the estate of the retired partner who had died. It was held that the provisions of the deed of dissolution did not create a charge upon the property assigned, in favor of the retired partner. Langmead's Trusts, 35 Eng. L. & Eq. 193. Also per Knight Bruce, L. J., that even if it had created a charge, still, as the debt was not scheduled or specified,

In re

the receipt of the continuing partner would effectually discharge the mortgagee. Id. So, where one of two partners retires, relinquishing his interest in the partnership property to the other, the latter has the same dominion over it as if it had always been his separate property. Bullitt v. Methodist Episcopal Church, 26 Penn. St. 108. So on the dissolution of a partnership, if the remaining partner, who takes all the goods and partnership effects, covenants to become solely responsible for the outstanding partnership debts, the covenant is not one of indemnity merely, but binds him to discharge the retiring partner, within a reasonable time, from all liability for the debts; and if he dies without complying with his engagement, and his estate is declared insolvent, the retiring partner has a claim against the estate to the amount of the outstanding debts. Peacey v. Peacey, 27 Ala. 683. One partner may well agree, on a voluntary dissolution, that the partnership property shall belong to his copartner, and an agreement so made, in good faith, will transfer to such copartner the property free from any equitable lien in favor of the partnership creditors. Sage v. Chollar, 21 Barb. (N. Y.) 596.

ner takes from the continuing partner a covenant or bond of indemnity against the partnership debts, that bond or covenant may be enforced by a decree for specific performance.1

Courts of equity will not relieve where complainant has not first attempted to avail himself of provisions of deed.

SEC. 195. This section may be concluded with the observation that in cases of extensive partnerships acting by means of directors and other officers, and regulated by a deed containing a great variety of laws and stipulations, a court of equity will frequently decline to interfere to relieve those parties who have not, in the first instance, endeavored to avail themselves of the provisions of their deed.

I Warren v. Taylor, 8 Sim. 599.

Ellison v. Bignold, 2 Jac. & W. 503 Waters v. Taylor, 15 Ves. 10.

CHAPTER IX.

OF THE LEGAL AND EQUITABLE REMEDIES BETWEEN PARTNERS.

SEC. 196. Of enforcement of covenants between partners.

SEC. 197. When covenant lies-Marshall v. Colman.

SEC. 198.

SEC. 199.

When specific performance will be decreed.
Covenants against engaging in other business.

SEC. 200. Relative to arbitration.

SEC. 201.

SEC. 202.

SEC. 203.

SEC. 204.

SEC. 205.

SEC. 206.

SEC. 207.

SEC. 208.

SEC. 209.

SEC. 210.

SEC. 211.

SEC. 212.

SEC. 213.

Liquidated damages, covenants relating to.
When such covenants not applicable.

Covenants are treated in equity as joint and several.
Illustration.

Equity rejects clauses not acted upon.

All the covenantees must be joined as plaintiffs.
When the covenants will be treated as several.
Illustration.

Number of plantiffs may be limited by the contract.

This applies only to actions between the partners themselves.
Right of action survives to the other covenantees.

When defect of parties does not appear on face of pleadings. Rule.
When courts of equity will interfere.

Will not restrain act approved by majority of partners unless illegal.
Illegal acts will be restrained.

Will interfere to control factious minority.

Will not generally interfere where complainant has been guilty of laches.

Rule in Sherman v. Sherman.

SEC. 214.

SEC. 215.

SEC. 216.

SEC. 217.

SEC. 218.

SEC. 219.

Effect of laches in certain cases.

Of the rule that all proper parties must be before the court.

Rule when person has been induced to enter into the company by fraud. Suits against executors of deceased partners for fraudulent acts of deceased.

41

SEC. 232.

SEC. 233.

Where some partners may sue on behalf of themselves and others. Exception to the rule that all the partners must be parties to suit for a dissolution.

Question of parties dependent upon right to be enforced.

SEC. 234.
SEC. 235.
SEC. 236.

Rule when dissolution is not sought.

SEC. 237.

Action to rescind illegal agreements or one illegally entered into.

What must be alleged in bill filed by shareholder on behalf of himself and others.

SEC. 238. When such suits may be brought on behalf of others without their

SEC. 245. Rule in Rawlins v. Wickham.

Bill to recover money invested under fraudulent representations of copartner.

Rule in MacBride v. Lindsay.

SEC. 246.

SEC. 247.

SEC. 248.

Equitable jurisdiction to rescind agreements generally.

SEC. 249.

SEC. 250.

Specific performance, when decreed,

Executors of deceased partners-power of, in certain cases.

Of the enforcement of covenants between partners.

SEC. 196. One partner may maintain an action against his copartner, whether the contract be to pay any sum or do any act for the purpose of only launching the partnership,' or whether it be to perform any of the articles after the partnership has actually commenced. It seems, however, that this proposition must not be extended to the case where the damages to be recovered are, of necessity, payable out of, or, when recovered, payable into the partnership fund; because, in this case, the party bringing the action is liable to contribute to the fund out of which he seeks payment.3

1 Walker v. Harris, ante, p. 136; Ex parte Notley, 1 Mont, & A. 48; Glover v. Tuck, 24 Wend. 153.

Want v. Reece, 1 Bing. 18; Hatcher v. Seaton, 2 M. & W. 47; see, also, Bagley v. Smith, 10 N. Y. 487; Adams v. Tutton, 39 Penn. St. 447.

31 Bing. N. C. 407. But see post, book 5, chap. 1, sect. 3, art. V, 2; and An. drews v. Ellison, 6 B. Moore, 199. Covenant lies for the wrongful dissolution of a partnership, against the provisions

of articles under seal. Adams v. Tut ton, 39 Penn. St. 447.

Members cannot sue the firm.-There is a familiar principle of the law that a member of a partnership cannot sue the firm, at law or in equity, for it has no legal existence aside from the members composing it. And to permit a suit against a firm by a member of it would be to allow a party to be both plaintiff and defendant in the same suit. Neale

SEC. 197. An action of covenant will lie, although there may be accounts between the parties which require unraveling in equity.' And where partnership covenants have not been infringed for any length of time, the action of covenant is the proper remedy, a court of equity in such case not interfering to restrain the breach of covenant, unless the bill pray, and there are just grounds for a dissolution. In the case of Marshal v. Colman, articles of partnership were entered