Upon the dissolution of a partnership each partner has a lien upon the partnership effects, as well for his idemnity as for his proportion of the surplus. The creditors of the partnership have no lien upon its effects for their debts; but in a Court of Chancery, the Equity of the partners over the whole funds, will enure to their benefit. On this principle, the partnership property is applied to the satisfaction of their claims, in preference to those of the separate creditors of the partners. On the other hand, the separate creditors of each partner are entitled to be first paid out of the seperate effects of their debtor, before the partnership creditors can claim any thing; which, also, can only be accomplished by the aid of a Court of Equity; for at law a joint creditor may proceed directly against the separate

estate.

5. When the partnership has been dissolved by the death of one partner, may the joint creditors proceed in the first instance against his separate estate ?

The doctrine seems now to be established, that a Court of Equity will consider a partnership debt as joint and several; and consequently, that a joint creditor has an election to proceed at law against the survivors, or in Equity against the estate of the deceased partner, and this whether the survivors are insolvent or not.1

6. Where at law, an execution is levied on the joint property, to satisfy the separate debt of one partner, will a Court of Equity restrain the sheriff from selling?2

the surviving partner, and is extinguised against the deceased partner, that Court will give to the separate creditors, all the advantages thus thrown upon them by accident. Vide, also 2 Harr. and McHen., 463.

On the other hand, in Ohio, the separate individual creditors of one deceased member of a firm, cannot claim a preference in the decedents individual estate, against the creditors of the firm. 6 Ohio, 103.

1 In 2 Conn., New Series, 384, it was held, that the effects of a deceased partner could not be pursued either at law or in Equity, while the surviving partner continued solvent. The same rule has generally prevailed in the United States. 2 John. Chy. Rep., 508; 1 Gall., 371; 3 Paige Rep., 173.

2 The rule as laid down by Chancellor Kent, in 2 J. C. R., 548, that a Court of Equity, on the applicaiion of the judgment debtor,

Although the authorities are very conflicting, yet it would seem to be the better rule for Equity to interpose. To save the judgment debtor from the ruinous sacrifice to which the sale on execution of an unascertained interest, must lead, to preserve to the other partners their lien on the property for any ultimate balance which may be found due to them, and to prevent a multiplicity of suits; a Court of Equity should injoin a sale, until the account is taken, and the share of the partner ascertained. But in any event, the sheriff can only sell the interest and right of the judgment partner therein, subject to the prior rights and liens of the other partners, and the joint creditors. The purchaser is substituted to the rights of the execution partner, quoad the property sold, and becomes a tenant in common thereof, and he may file a bill, or a bill may be filed against him by the other partners, to ascertain the quantity of interest which he has acquired by the sale.

ought not to injoin a sale by the sheriff, upon the ground that no harm is done to the other partners, has been adopted in Mississippi, 1 Freem. Rep., 78; and in Connecticut, 4 Conn. Rep., 540. In the American Jurist, vol. 8, page 8, the doctrine of the text is sustained, and also in New Jersey, 1 Green's Chy. Rep., 163. Phillips vs. Cook, 24 Wen., 359, is a case in which the amount of interest that may be sold on an execution at law, against one partner, is elaborately considered, and all the authorities reviewed.

CHAPTER XVI.

RENT.

1. JURISDICTION OF EQUITY TO DECREE THE PAYMENT OF RENT.

1. When do Courts of Equity enforce the payment of Rent? The jurisdiction proceeds upon the general principle, that where there is a right, there ought to be a remedy. If rent is due, and the person who is entitled to receive it, can neither distrain, nor bring a suit at law; and if he is thus remediless, without any laches of his own, a Court of Equity will grant relief. Such a case may occur from the loss of the deeds by which the rent is evidenced, or from confusion as to the boundaries of the land, out of which it shall issue; or when the time or the amount of the payment is uncertain; or when equitable relief, such as a discovery, or an account, or an apportionment, is necessary. So, when premises are in the possession of a sub-tenant, and the original lessee is unable to pay the rent, the lessor may recover it in Equity, from the former, although not at law, from the want of any privity of contract between them. The rent is regarded in Equity, as a trust or charge on land, which he who has enjoyed the rents and profits, is bound to discharge. In the exercise of this jurisdiction, Courts of Equity follow the law, and impose no farther liabilities than it recognises.'

CHAPTER XVII.

RECISSION, CANCELLATION, AND DELIVERY OF

INSTRUMENTS.1

1. JURISDICTION OF EQUITY IN THE RECISSION, CANCELLATION, AND

DELIVERY OF INSTRUMENTS.

2. COURTS OF EQUITY WILL NOT ENTERTAIN A BILL FOR THE DELIVERY OF AN INSTRUMENT, WHERE THE ILLEGALITY IS APPARENT ON ITS FACE.

3. MODE OF ASCERTAINING THE VALIDITY OF A CONTESTED IN

STRUMENT.

4. WHEN COURT OF EQUITY WILL ENTERTAIN SUITS FOR THE RECOVERY OF SPECIFIC CHATTELS.

1. When, and on what grounds, do Courts of Equity direct the recission, cancellation, or delivery of instruments?

The jurisdiction which they exercise, is in the nature of a preventive or protective justice; and is entertained, not as a matter of absolute right, but of sound and reasonable discretion; and relief will be granted only upon such terms, as the justice of each case may require. It is a portion of that exten

1 There is a large class of cases, in which the jurisdiction of Equity to grant relief, attaches as an incident, to a bill of discovery. The principles applicable to such cases, have been already considered. Ante, page 25.

sive remedial justice, technically called, quia timet, and is intended to provide against probable future injury. The following are the most usual cases in which it is applied: First, where one person is in the possession of an instrument, which may, at a future period, be used to the injury of another, or which cov ers his title with a cloud of suspicion, the latter has a right to come into Equity, and demand its cancellation and delivery, on showing that he has a good defence to it, at law, or, a fortiori, one which is only available in Equity. Second, Courts of Equity, in consequence of the inadequacy and imperfection of the legal remedies of detinue and replevin, will decree the specific restitution of deeds, negotiable instruments, and other evidences of property, when they are wrongfully withheld from those who have a legal or equitable title to their possession. Thus, an heir, may recover the title deeds to his estate, when they are improperly detained from him. So, where any person has an interest in a deed or writing, which is in danger of being lost or destroyed, a Court of Equity, will either require the instrument to be brought into Court, for preservation, or security to be given for its future delivery. Third, and these cases are scarcely distinguishable from those of the first class; where an instrument, originally valid, has become functus officio, by payment, or other legal or equitable extinguishment, a Court of Equity, will, on similar principles, order it to be delivered up and cancelled. This doctrine embraces all cases where it is fairly inferable, from the acts or conduct of the party entitled to the benefit of the instrument, that he has intended to release it. There is no distinction, in the view of a Court of Equity, between an instrument utterly void, and one that is merely voidable. If an instrument ought not to be used or enforced, then it is against conscience for a party. to retain it, to the possible prejudice of another.

1

2. Will a Court of Equity interfere, where the illegality of the instrument is apparent on its face??

1 1 Paige Rep., 215; 1 Freem., 75.

2 Chancellor Kent, in 1 John. Chy. Rep., 517, says that "the weight of authority, and the reason of the thing, are equally in favor of the ju