of exchange drawn on them as partners for the very goods,) fhall make him liable in an action for goods fold and delivered; though he will be liable in an action on the bill of exchange. Saville v. Robertfon and utchinfon, 4 Term Rep. 720.

7. If partners diffolve their partnership, they who deal with. either without notice of fuch dilution, have a right against both. Per Lord Mansfield in Fox v. Hanbury, Cowp. 449.

8. If two are partners as attornies and conveyancers, and one receives money to be laid out on mortgage, the other is liable for the amount, though his partner gave a feparate receipt for it in his cwn name, and no procuration money was paid for their trouble. Willet v. Chambers, Corp. 814.

9. A. and B., fhip agents at different ports, enter into an agreement to share in certain proporti ns the profits of their respective commiffions, and the difcount on trade finen's bills employed by them in repairing the fhips configned to them; and the agreement provides, that neither fhall be anfwerable for the acts or loffes of the other, but each for his own. Held in C. B that notwithstanding this they become liable as partners to all perfons with whom either contracts as fuch agent. Waugh v. Carver and others, 2 H. Black. 235.

10. If two joint-traders owe a partnership debt, and one of the partners gives a bond as a collateral fecurity for payment of this debt; here the joint debt may be fued for by the partnership creditor, who may likewife fue the bond given by one of the traders. 3 P. Wms. 408. Hil. 1735. Ex parte Rowlandfon.

11. Where one partner is out of the kingdom, the partner be fore the court fhall pay the whole of a joint-demand. 2 Atk. 510. Feb. 1742. Darwent v. Walton.

And fervice of jubæna upon one partner here deemed good service upon his partner in France. Bunb. 107. 1722. Lady Carrington Cantilion.

12. Partners continue joint tenants in the ftock, notwithstanding it changes in the courfe of trade, and are feized per my and per tout, and on account each must have all allowances before a judgment creditor of the other can come on the other's fhare. 1 Vef. 239. 1749. Weft v. Skip.

13. Partnership effects first applied to pay partnership debts. Ibid. 1 Vef. 456.

14. Judgment in an action against a furviving partner remains a partnership debt ftill. 2 Vef. 265. 2 Vef. 265. April 1751. Jacomb v.

Harwood.

15. A joint-creditor, by fimple contract may go against the affets of a deceased partner, but cannot, before the account, retain feparate property of that partner in his poffeffion. 3 Vef. jun. 565. Dec. 1797. Stevenfon v. Chifwell.

16. Though one of the partners is an infant, an action must be brought against all three. 4 Vef. jun. Aug. 1798. Ex parte Henderfon

Z3

17. A

17. A feparate creditor of a partner has no right against the joint property farther than the feparate intereft of that partner, viz. his fhare upon a divifion of the furplus, fubject to the accounts of the partnership; therefore joint-property of an infolvent partnership, taken in execution for a feparate debt, cannot be held against joint creditors. 4 Vef. jun. 396. Jan. 1799, Field v.

18. Affignee, executor, or feparate creditor, coming in the right of one partner against the joint property, comes into nothing more than the intereft, fubject to an account between the partnership and the partner, and therefore to the joint debts; affignee under a feparate commiffion of bankruptcy has only the fame right to ftand in the place of the bankrupt by the common law, not under the bankrupt laws. Ibid. 397.

19. The court expreffed great doubt whether the stock in trade, being in the poffeffion of the bankrupt folely, the claim of partnership could be fuftained upon the ftat. 21 7. I. c. 19. S. 10, 11. 4 Vef. jun. 756. July 1799. Binford v. Dommett.

(B) Difputes between the Partners and their Debtors,

1. AN Naction cannot be maintained by feveral partners for brandy fold by one of them living in Guernsey, and put into half ankers, and ready flung for the purpofe of fmuggling, though the other partners, who refided in England, knew nothing of the fale, for it is a contract by fubjects of this country, made in contravention of the laws, and must be confidered in the fame light as if all the partners lived in England. Biggs & al. v. Lawrence, 3 Term Rep. 454.

2. The plaintiffs, together with A. and B. being owners of one privateer, and the defendant of another, a prize was taken, condemned, and fhared by agreement between them; afterwards the fentence of condemnation was reverfed, and reftitution awarded with ccfts, which were paid folely by the plaintiffs; A. and B. having in the meantime become bankrupts. An action cannot be brought by the plaintifs alone for a moiety of the ref titution money and of the cofts, because it was either a partnerfhip tranfaction, when A. and B. ought to be joined; or not, when feparate actions fhould be brought by each of the perfons paying. Graham et al. v. Robertfon, B. R. 2 Term Rep. 282.

3. Where money is owing to two partners, and after the death of one it is paid to a third perfon, the furviving partner may maintain an action for money had and received in his own right and not as furvivor. Smith v. Barrow, 2 Term Rep. 476.

(C) One dies. Difputes betweeen the Executor or Adminiftrator of the Deceafed and the Survivor, &c.

I.

1. IF one partner dies, the debts and effects furvive, but yet the furvivor is confidered in equity as a trustee for the reprefentatives of the deceafed, who have a fpecific lien upon the stock; but fuch lien may be loft by laches, or confent to leave the goods in the furvivor's power (a), when, if he becomes bankrupt, the (a) Vide fpecific lien is loft under 21 7. 1. c. 19. Per Hardwicke C. Weft Real v. v. Skip, i Ves. 242. Ib. 456.

Rowles,

1 Atk 165. 1 Vel. 348.

2. An agreement was entered into between the plaintiffs and one H. impowering him to contract for the building a fhip for them, and for the fitting her out &c., with a covenant that the fubfcribers, i. e. the plaintiffs, and H. fhould pav proportionate fhares, according to the feveral parts of the money, and all the charges and difbur fements in equipping, &c. H. dying intef tate, a bill was brought against his reprefentatives, by the pa towners, that they should have a specific lien upon what fhould be due to H. for his fhare, for the money they had paid to the tradefmen for fitting out the fhip, c. Lord Hardwicke confidering this to be a partnership concern decreed accordingly; faying that the court always laboured to decree a partnership to prevent other creditors from running away with that which the plaintiffs had expended. Doddington v. Hallet, 1 Vef. 497.

3. Where A. and B. enter into articles of partnership, and it is provided by them, that notwithstanding the death of A. the trade fhall be carried on by his reprefentatives jointly with B.; if B. die, his reprefentatives thall not be entitled to carry it on. At the Rolls, O. 30, 1750. Pearce v. Chamberlain, 2 Vef. 33.

4. On a bill for fpecific performance of an agreement to let the plaintiff into trade, his Honor faid, he never knew an inftance that the court decreed an account of the profits of the trade from the time the plaintiff ought to be let in. Where a trustee has money of an infant's to lay out in the funds for the infant's benefit, and lays it out in trade, which produces 10l. per cent. the court will give that infant an option, either to have intereft for the money or the profits of the trade: but that is a very fingular inftance and the only one of the kind. Anonymous, at the Rolls, July 9, 1755. 2 Vef. 629.

5. The court would not decree performance of fuch an agreement, and then decree damages for the delay in not ting in the plaintiff fooner, for that the plaintiff might have had, if he had ufed his remedy at law. Id. lb.

(D) One dies (or becomes Bankrupt.) Difputes between Creditors and the Survivor, &c.

1. A.

and B. partners as bankers, gave a note to C. for a fum of money. Afterwards A. dying and leaving B. one of his executors, C. called upon B. for a further fecurity than the note, and judgment was entered up in an action against him, not as executor of A. but as a furviving partner for a partnership debt. This is an extinguishment of the demand on the note, but it continues a partnership debt, only bettered by the fecurity. Facomb v. Harwood, at the Rolls, Per Sir J. Strange. 2 Ves. 265. Barrell, 220 July 1783, Cooke's B. L. 556.

See 1 Atk.

227. and Ex parte

2. One of three partners in a fhip and cargo, the coft and outfit of which was 4568%, p1ys only 410/. in part of his third share, and gives his notes for the remainder; but before they become due is declared a bankrupt. The other partners cannot, by voluntarily discharging the notes, and in his place for any fhare of the profits, but the affignees are entitled to a full third, both of the profits The reporter of the adventure and the value of the fhip. For all the expence ftates that being incurred prior to the bankruptcy, if the voyage had proved C. when he a lofing one the bankrupt would have been liable for the whole directed this in proportion to the other owners; and as he had thus a right to ifue, was a third of the profits at the time of the bankruptcy, his infolvency does not vary the right. The taking up the notes was the agreement of third perfons, without the privity of the bankrupt or his affignees, and cannot vary their right. Smith v. De Silva, B. R. Cowp. 469.

Lord Apfly,

extremely clear in the fame opi

nion.

3. A. and B. being partners, A. receives, as affignee under a commiffion of bankrupt, 25634. which, with B.'s privity, he applied in their joint trade, and entered on their joint-account. The partnership is afterwards diffolved, and the partnership effects are affigned over to A. who took upon him the debts. Afterwards a joint-commiffion iffued against both of them, and new affignees were chofen, in that commiffion, under which A. received the money. It was held in B. R. upon an iffue out of Chancery, that this was no payment by B. fo as to difcharge him of the claim by the new aflignees to the truft-incney, but that both were liable to make it rood. Smith and others, Afignees of Lervis and Potter v. R. and . Jamieson, 5 Term Rep. 601. 1.

4. Bankers, upon a depofit of money with them, give notes bearing intereft; the partnership was diffolved; one of the partners foon afterwards died, and his creditors were called by public advertisement. Another partnership was formed by the furvivors and others, who ifued notes of the former partnership, and paid the intereft of the depofit notes, for near two years, when they failed. The affets of the deceafed partner held discharged. 3 Ves jun. 277. 1796. Daniel v. Crefs.

(E) Inter fe.

1. PARTNERS are joint-tenants in the stock and all effects; and they are not only fo in that particular flock in being at the time of entering into the partnership, but they are to continue fo throughout, whatever changes may happen in the course of the trade. And being feifed per my et per tout, 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 tranfaction, 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 confidered as his fhare, but his proportion of the refidue on balance of the account. Per Lord Hardwicke C. in Weft v. Skip, 1 Vef. 242. Ib. 499. S. P. Vide alfo Fox v. Hanbury, Cowp. 445, Smith v. De Silva, Ib. 471. Gofs v. Dufresnoy, Davies, 371. Cooke's Bank. Larus, 552.

2. A partner has a fpecific lien not only on the original stock, but alfo on every thing coming in lieu during the continuance or after the determination of the partnership. Id. ib. and Corp. 449, Per Lord Mansfield.

3. The partnership effects must be applied to pay the partner fhip debts before any other partner can claim any thing out of them, either for his fhare or debt. Id. ib. 456.

4. Three perfons feifed of land called B. in fee, entered into partnership for 21 years, erected mills thereon, and declared the ufes of the land to be to themfelves in fee as tenants in common. Afterwards they entered into another partnership by deed for 21 years, taking in four new partners, and in the partnership deed there was a covenant from the three original partners to ftand feifed of the land in truft for the co-partnership in the proportions in which they were refpectively interefted therein, and a provifo, that in cafe any of them withed to difpofe of their share, that they might do fo, giving notice to the other partners, in order that they might have an opportunity of purchafing. The partnership term being expired, they went on afterwards without any new agreement. One of the partners being dead, and the partnerfhip diffolved, Lord Thurlow C. held, that this agreement was not fufficient to alter the nature of the property from real into perfonal, fo as to make the deceased partner's fhare of it distributable to his reprefentative, according to the rules of law regulating the latter. Thornton v. Dixon, 3 Brown, 199.

5. One partner may maintain an action for money had and received against the other partner for money received to the feparate use of the former, and wrongfully carried to the partnership account. Smith v. Barrow, B. R. 2 Term Rep. 476.

6. One partner cannot recover a fum of money received by the other, unless on a balance ftruck, that fum is found due to him alone. Per Buller J. 1b.

I

7. One