sidering the manner in which it is exercised. First, a Court of Equity will require the parties in interest, to make suitable conveyances, according to the allotment of the Commissioners. This is a muniment of title, which cannot be obtained by a common law proceeding. If the parties are unable to execute a valid conveyance, from infancy or any other cause, the conveyances will be respited, till the disability is removed. Second, the writ of partition can only give specific relief, but Courts of Equity may so mould their orders as to conform to the considerations, growing out of the circumstances of the parties, or the condition of the property. They will administer relief, upon enlarged principles of justice. Thus, they will ordinarily assign to the parties, respectively, those portions of the estate, which will be of most value to them, or, direct compensation to be made, to a party who has erected valuable improvements; or, where there are several estates of different values, they will control the mode of partition, and impose terms upon the parties, so as to receive a fair and equal division. So, they will not only regard the rights of the original tenants in common, but the legal and equitable rights of persons deriving title under

the land is unproductive to the children; 1 Desaus., 109. In 1 Hoff. Chy. Rep., 506, it was held, that if a fair partition be impracticable by metes and bounds, the Court may assign the use of the property, to each of the tenants, for alternate periods, or they may appoint a receiver and have the profits divided in just proportions, or they may direct a sale of the premises, in their discretion, as being the most easy and practicable disposition of the rights of the tenants.

6. A partition long acquiesced in, and acted upon by the parties generally, ought not to be disturbed on the simple ground of irregularity; though if unjust or illegal, it may be impeached by a party who never acquiesced. 5 Munf. 108,

7. Tenant in common of the personal estate, cannot have partition at common law; and therefore, whether the title is legal or equitable, the Court of Chancery, is the proper tribunal to decree a partition. 4

Rand. 95.

8. Chancery will relieve, in cases of mistake, in the division of lands, and if the part to be restored, has been sold to innocent purchasers, will not decree other lands in exchange, but damages, according to the unimproved value of the lands, at the time of the decree. 3 A. K. Marsh. Rep., 314; 2 Simons & Stuart, 455.

them, and will, if necessary, direct a distinct partition of each of several portions of the estate, in which the alienees have a distinct interest, in order to protect that interest.1

1 It has been decided in Ohio, that a tenant in common, may work a division of the common property, by conveying his share in a deed, defining its limits, by metes and bounds. As between the co-tenants and the purchaser, the effect of such a deed, is to give to such a purchaser, the proportional interest of his grantor, in that part of the common property described in the deed. 2 Ohio, 113; 6 Ohio. 398. In the first of these cases, Judge Burnet dissented from the opinion of the Court, and a different doctrine generally prevails elsewhere. The right to have the partition made by jurors or commissioners, is an incident to the estate, of which, one tenant cannot deprive another, without his consent. 3rd Yerg., 492; 2 Conn., 244; 3rd Sumn., 184; 24 Pick., 329.

15

CHAPTER XV.

PARTNERSHIP.

1. REMEDIES BETWEEN PARTNERS AT LAW.

2.

3.

4.

6.

FUNCTIONS OF COURTS OF EQUITY IN CASES OF PARTNERSHIP.

HOW THE REAL ESTATE HELD BY A PARTNERSHIP IS REGARDED
IN EQUITY.

PRINCIPLES UPON WHICH COURTS OF EQUITY DISTRIBUTE THE
ASSETS OF A PARTNERSHIP.

5. PARTNERSHIP DEBTS ARE CONSIDERED AS SEVERAL, IN EQUITY. WILL EQUITY INJOIN THE SALE OF PARTNERSHIP PROPERTY TAKEN ON EXECUTION, FOR THE BENEFIT OF A SEPARATE

CREDITOR OF ONE PARTNER.

1. What remedies have partners against each other at law? Where any express stipulations in the articles of partnership, have been violated by one partner, an action of assumpsit or of covenant, as the case may require, will ordinarily lie, to recover damages for the breach thereof. The action of account is the appropriate, and except under peculiar circumstances, the only remedy at law for the final adjustment and settlement of partnership transactions, or for a contribution by one partner against the others, for money advanced by him on behalf of the partnership. But the difficulties which embarrass that action, are especially applicable to partnership transactions, when the production of books and papers, and the personal examination of the partner is indispensable to the purposes of justice.

2. What are the most important remedial functions exercised by Courts of Equity in cases of partnership?

First, a Court of Equity, on behalf of a partner or a third person, may ascertain and establish the existence of a partnership, either where the written articles have been suppressed, or where none were ever executed. Second, a Court of Equity may decree the specific execution of a contract to form a partnership, or of any one of its stipulations; as, for example, that the connection of one party with the partnership should be recognised in the name used by the firm. Third, a Court of Equity may interpose by injunction to prevent the violation by one partner of any of his express or implied obligations. Thus, a partner may be restrained from engaging in any other business, or the profits which he makes in it, be sequestered for the benefit of the partnership; or from wasting the partnership property; from misusing the partnership name; from interfering to stop the partnership business; or from fraudulent practices injurious to the partnership. So, a Court of Equity will not permit either party to dissolve a partnership, where no term has been fixed for its duration, under circumstances of ill faith, or in a manner to do irreparable injury to the other. Fourth, a Court of Equity may dissolve a parnership for any sufficient cause. Such a cause may arise from the insanity or permanent incapacity of one of the partners; or from his gross misconduct; or from the impracticability of carrying on the business at all, or according to the stipulations of the contract. On a dissolution, the Court may decree an account of partnership transactions, appoint a receiver to close the business, and sell the property, and make a final distribution of the partnership effects. In such case, if it is deemed expedient, the Court may restrain one or all of the partners from collecting the debts, or disposing of the property of the concern. Fifth, where one partner advances money for the partnership, or where there are dealings between two firms, of which these are common members, there is no remedy at law, on the technical principle, that a partner cannot contract with himself. But Courts of Equity, looking to the substance, and not the form of the transaction, will grant such redress as may be required by the justice of the case.

3. How is real estate regarded in Equity, which has been purchased with partnership funds, and as partnership stock?1

The person clothed with the legal title to real estate, is at law considered as the owner, but where the equitable title is in another, Courts of Chancery regard him as a trustee for such person. This principle is applied in the case referred to, and the real estate is considered in Equity as personalty, to all intents and purposes, and subject to the equitable rights and liens of the partners and their creditors. Even as between the heirs and distributees of a deceased partner, the same construction will prevail, in the absence of any clear expression of the will of the deceased, that the estate should go to his heir at law beneficially.

4. On what principles do Courts of Equity apply the assets of a partnership, as between the partners and their joint or separate creditors?'

The rule as stated in the text is generally recognised in this country. According to Chancellor Kent, the simple fact of an investment of partnership funds in real estate for partnership purposes, is sufficient to give to it the character of personalty, as between the heirs and the distributees. See the subject treated at large in a note to the 3d vol. of his Commentaries page 39. Besides the authorities there cited, the same general views are laid down, in 5 Metcalf, 562; and 5 Alabama, 446; 1 Dev. and Batt., 524; 4 B. Mon., 459, 489. Contra, 1 Appleton, 16; 3 V. E. Howard, 360; 3 Bibb, 506.

The doctrine as laid down in the text, has not been universally recognised in this country. In Vermont, it has been held that partnership creditors have no priority over a creditor of one of the partners, even as to partnership effects. 2 Verm. Rep., 120. So, in Pennsylvania, joint and separate creditors are allowed to come in under the insolvent laws, pari passu, for a distributive share of the estate of a deceased partner, whether the fund be a separate or a partnership fund. 5 Serg. and Rawle, 78. And, in Georgia, a separate judgment creditor of a partner, may levy on the partnership effects, and sell his debtor's undivided interest therein, without reference to the claims of the creditor's of the firm. R. M. Charl. Rep., 87. In Maryland, it was held in 1 Harr. and Gill., 96, that at law, the joint creditors may pursue both the joint and separate estate, to the extent of each, for the satisfaction of their joint demands, without restriction from a Court of Equity; yet where, by the death of one of the parties, the legal right survives against