and dissent from a purchase or contract about to be made by his associates; and the commentators on the Institutes lay down the principle as drawn from the civil law, that each partner has a power to dissolve the connection at any time, notwithstanding any convention to the contrary, and that the power results from the nature of the association. They hold every such convention null, and that it is for the public interest that no partner should be obliged to continue in such a partnership against his will, inasmuch as the community of goods in such a case engenders discord and litigation.a

The marriage of a feme sole partner would likewise operate as a dissolution of the partnership; because her capacity to act ceases, and she becomes subject to the control of her husband; and it is not in the power of any one partner to introduce, by his own act, the agency of a new partner into the firm."

(2.) By the death of a partner.

The death of either party is, ipso facto, from the time of the death, a dissolution of the partnership, however numerous the association may be. The personal qualities of each partner enter into the consideration *of the contract, and the survivors ought not to be *56 held bound without a new assent, when, perhaps, the abilities and skill, or character and credit of the deceased partner, were the inducements to the formation of the connection. Pothier says, that the repre

■ Adeo autem visum est ex natura esse societatis unius dissensu totam dissolvi, ut quamvis ab initio convenerit, ut societas perpetuo durvret, aut ne liceret ab ea resilire invitis cæteris; tamen tale pactum, tanquam factum contra naturam societatis, cujus in æternum nulla coitio est contemnere licet. Vinnius in Inst. 3. 26. 4. pl. 1. Firriere, ibid. tome v. 156. Dig. 17. 2. 14. Domat, b. 1. tit. 8. sec. 5, and art. 1 to 8, by Strahan.

b Nerot v. Burnand, 4 Russ. 260.

• Pothier, Traité de Con. de Soc. No. 146. Inst. 3. 26. 5. Vinnius, h. t.

sentatives of the deceased partner are bound by new contracts made in the name of the partnership, by the survivor, until notice be given of the death, or it be presumed to have been received.a But Lord Eldon was of opinion that the death of the partner did, of itself, work the dissolution; and he was not prepared to say, notwithstanding all he had read on the subject, that a deceased partner's estate became liable to the debts of the continuing partners, for want of notice of such dissolution. In the Roman law, and in the commentaries of the civilians, every subject connected with the doctrine of partnership is considered with admirable sagacity and precision; but, in this instance, the rule was carried so far, that even a stipulation that, in the case of the death of either partner, the heir of the deceased should be admitted into the partnership, was declared void. The provision in the Roman law was followed by Argou, in his Institutes of the old French law.d Pothier was of opinion, however, that the civil law abounded in too much refinement on this point; and that if there be a provision in the original articles of partnership for the continuance of the rights of partnership in the representatives of the deceased, it would be valid. His opinion has been followed in the Code

Pearce v. Chamberlain, 2 Vesey, sen. 33. Lord Eldon, Vulliamy v. Noble, 3 Merivale, 614. Crawshay v. Maule, 1 Swanst. Rep. 509, and note, ibid. a Pothier, Traité du Con. de Soc. Nos. 156, 157. The Roman law also required notice to the surviving partners of the death of any partner, before that event dissolved the partnership. Dig. 17. 2. 65. 10.

b Crawshay v. Collins, 15 Vesey, 228. Kinder v. Taylor, cited in Gow on Partnership, 250. Vulliamy v. Noble, 3 Merivale, 614. The laws of Louisiana do not recognise any authority in a surviving partner, and he cannot administer the effects of the partnership until duly appointed administrator. Notrebe v. McKinney, 6 Robinson, R. 13.

Napoleon, and in the English law, such a provision in the articles of partnership for *the benefit of *57 the representatives of a deceased partner, is not

questioned; and it was expressly sustained by Lord Talbot.b

A community of interest still exists between the survivor and the representatives of the deceased partner; and those representatives have a right to insist on the

Art. 1868.

› Wrexham v. Hudleston, 1 Swanston, 514, note. Crawshay v. Maule, 1 Swanston, 521. Collyer on Part. 5, 6. See, also, Pearce v. Chamberlain, 2 Vesey, sen. 33. Balmain v. Shore, 9 Vesey, 500. Warner v. Cunningham, 3 Dow's Parl. Cas. 76. Gratz v. Bayard, 11 Serg. & Rawle, 41. Scholefield v. Eichelberger, 7 Peters' U. S. Rep. 586. If one partner, by will, con. tinues his share of stock in a partnership for a definite period, and the partnership be continued after his death, and becomes insolvent, the partnership creditors have no claim over the general creditors to the assets in the hands of the representatives of the deceased, except as to the assets vested in the partnership funds. Ex parte Garland, 10 Vesey, 110. Pitkin v. Pitkin, 7 Conn. Rep. 307. Thompson v. Andrews, 1 Mylne & Keene, 116. In the case of the Louisiana Bank v. Kenner's succession, 1 Miller's Louis. Rep. 384, after an extensive examination of the commercial laws and usages of Europe and the United States, it was considered to be a doubtful point, whether stipulations in contracts of partnership, that they may be continued after the death of one of the partners, for the benefit of the heirs, were binding on the latter without their consent. They were not so binding in Louisiana at the time of the adoption of the code of 1808. The better opinion is, that they are not any where absolutely binding. It is at the option of the representatives, and if they do not consent, the death of the party puts an end to the partnership. If no notice or dissent be given, it is said that a continuation of the partnership will be presumed. Pigott v. Bagley, M'Clel. & Younge, 569. Kershaw v. Matthews, 2 Russ. 62. Collyer on Partnership, 120-122. If the survivor carries on the business without the assent of the representatives of the deceased partner, they have their election to take a a share of the profits, or interest on the amount of their share. Millard v. Ramsdell, Harrington's Mich. Ch. R. 373. The general principle is, that the assets of a deceased partner are not liable for debts contracted after the tes tator's death, except under the direction of his will, authorizing such contin. uance of the trade, and new creditors are confined to the funds embarked in such trade, and to the personal responsibility of the party who continues the trade, whether as executor, trustee or partner, unless the testator had, by will, bound his general assets. Burwell v. Mandeville, 2 Howard R. 50.

application of the joint property to the payment of the joint debts, and a due distribution of the surplus. So long as those objects remain to be accomplished, the partnership may be considered as having a limited continuance. If the survivor does not account in a reasonable time, a Court of Chancery will grant an injunction to restrain him from acting, and appoint a receiver, and direct the accounts to be taken." If the surviving partner be insolvent, the effects in the hands of the representatives of the deceased partner are liable, in equity, for the partnership debts; and it is no objection to the claim that the creditor has not used due dili

gence in prosecuting the surviving partner before *58 *his insolvency; for the debt is joint and several, and equally a charge upon the assets of the deceased partner, and against the person and estate of the survivor.b

(3.) By the insanity of a partner.

Insanity does not work a dissolution of partnership, ipso facto. It depends upon circumstances under the sound discretion of the Court of Chancery. But if the lunacy be confirmed and duly ascertained, it may now be laid down as a general rule, notwithstanding the de

Ex parte Ruffin, 6 Vesey, 126. Hartz v. Schroder, 8 Vesey, 317. Ex parte Williams, 11 Vesey, 5. Peacock v. Peacock, 16 Vesey, 57. Wilson v. Greenwood, 1 Swanst. Rep. 480. Crawshay v. Maule, ibid. 506. Murray v. Mumford, 6 Cowen, 441. 16 Johns. Rep. 493.

Hamersley v. Lambert, 2 Johns. Ch. Rep. 508. Miss Sleech's case, in Devaynes v. Noble, 1 Merivale's Rep. 539. The creditor of the firm may sue the surviving partner, and the representatives of the deceased partner, for payment out of the assets of the deceased, and without showing that the surviving partner was insolvent. Wilkinson v. Henderson, 1 Mylne & Keene, 582. A surviving partner may set off a debt of the partnership against a demand against him in his own right, for he has the exclusive control and settlement of the business. Slipper v. Lane, 5 Term R. 493. Craig v. Henderson, 2 Barr, Pen. R. 261.

cision of Lord Talbot to the contrary, that, as partners are respectively to contribute skill and industry, as well as capital, to the business of the concern, the inability of a partner, by reason of lunacy, is a sound and just cause for the interference of the Court of Chancery to dissolve the partnership, and have the accounts taken, and the property duly applied.a

(4.) By bankruptcy of a partner.

Bankruptcy, or insolvency, either of the whole partnership or of an individual member, dissolves a partnership; and the assignees become, as to the interest of the bankrupt or insolvent partner, tenants in common with the solvent partners, subject to all the rights of the other partners; and a community of interest exists between them, until the affairs of the company are settled. The dissolution of the partnership follows necessarily, under those statutes of bankruptcy, which avoid all the acts of the bankrupt from the day of his bankruptcy, and from the necessity of the thing, as all the property of the bankrupt is vested in his assignees, *59 who cannot carry on the trade. A voluntary and bona fide assignment by a partner of all his interest in the partnership stock, has the same effect, and dissolves the partnership. This is upon the principle that a partnership cannot be compelled by the act of one partner

Wrexham v. Hudleston, cited 1 Swanst. Rep. 514. note. Sayer v. Ben. net, 1 Cox's Cas. 107. Waters v. Taylor, 2 Ves. & Bea. 301. Jones v. Noy, 2 Mylne & Keene, 125. Milne v. Bartlett, Atkin & Wyatt's Rep., April, 1839. See vol. ii. lec. 41. ad finem. The general rule mentioned by Spencer, J., in 15 Johns. 57, that insanity works a dissolution of a partnership, must be taken with the limitations in the text. Story on Partnership, 423-427.

Fox v. Hanbury, Cowp. 445. Lord Eldon, Ex parte Williams, 11 Vesey, 5. Wilson v. Greenwood, 1 Swanst. Rep. 482. Marquand v. N. Y. Man. Co. 17 Johns. Rep. 525. Gow on Partnership, 304–306.