claim of the joint creditors is not such a lien upon the partnership property, but that a bona fide alienation to the corpus of the joint estate, or the whole, or so much of the entire partnership effects as might be necessary to satisfy the execution, and sell the interest of the (defendant) partner therein, and deliver the property sold to the purchaser. The purchaser becomes thereby a tenant in common with the other partner, and if he purchases with notice of the partnership, he takes subject to an account between the partners, and to the equitable claims of the partnership creditors. The same point was again so decided in Birdseye v. Ray, 4 Hill's N. Y. Rep. 161. But see Story on Partnership, pp. 373–382. Mr. Justice Story (p. 380) concludes, that the sheriff ought to be enjoined on exe. cution at law from a sale of the separate interest of the partner defendant in the partnership property, until the account be taken on a bill in chancery, and the share of the debtor partner ascertained, and that the decision in Moody v. Payne, 2 Johnson's Ch. R. 548, denying the injunction, was not founded on the true result of the English decisions. As I have already observed, the more fit and suitable rule of practice would seem to be, to have the adjustment of the partnership account precede the sale. But the current of the authorities, as I read them, is the other way, and they are emphatically so in New-York. In the case last cited from Wendell, the decision in Moody v. Payne was referred to and approved. Mr. Justice Story himself, in a subsequent part of his Commentaries on Part. nership, pp. 442, 443, admits the established rule and practice at law to be, that on execution at law, the creditor of the debtor partner may seize and sell the tangible goods and effects of the partnership, or a part thereof, and that the sale would be good to the extent of the judgment debtor's right, title and interest therein, to be afterwards adjusted. In the Court of Chancery in New-Jersey, the chancellor was of opinion with Judge Story, as respects the sale of personal property. Cammack v. Johnston, 1 Green's N. J. Ch. Rep. 163; while in Massachusetts, in Reed v. Howard, 2 Metcalf's Rep. 36, it was held that the sheriff might seize and take the whole personal property held by A. and B. in common, on process of attachment against A. only, though he could only sell an undivided moiety on execution, and the purchaser would become a part owner. If the sheriff was to sell the entire property on an execution against one co-tenant or partner, he would be a trespasser. Waddell v. Cook, 2 Hill's Rep. 47. Again, in Moore v. Sample, 3 Ala. R. N. S. 319, it was held that the sheriff on execution against A. might levy on the goods of the firm of A. & B., and take exclusive posses. sion, and sell the interest of A. therein, and this proceeding could only be arrested by equitable interposition. On this litigious subject Ch. J. Tindal said, in Johnson v. Evans, 7 Manning & Granger, 249, that the general rule of laws was, that the judgment creditor of any partner, might take in execution against that partner, as well his separate property as his share or interest in all the personal property of the partnership that was capable of a purchaser for valuable consideration, by the partners, or either of them, before judgment and execution, will be held valid. Upon a dissolution of the partnership each partner has a lien upon the partnership effects, as well for his indemnity as for his proportion of the surplus. But creditors have no lien upon the partnership effects for their debts. Their equity is the equity of the partners operating to the payment of the partnership debts. These are just and obvious principles of equity, on which we need not enlarge, and they have been recognised and settled by a series of English and American decisions.b 66* To render the dissolution safe and effectual, there must be due notice given of it to the world; and a firm may be bound, after the dissolution of a part being seized. The sheriff must seize the whole, the shares of the two partners being undivided. (Heydon v. Heydon, supra.) This arises from the necessity of the case. But taking possession of the whole, does not convey any interest on property in the other part owner's share. The judgment creditor becomes tenant in common with the other partner. The sheriff can only sell the moiety. Jacky v. Butler, 2 Lord Raym. 871. Lord Eldon, ex parte Williams, 11 Vesey, 5. Story on Partnership, 470. 620. It has been adjudged on good consideration, in the case of Jackson v. Cornell, 1 Sandford's Ch. R. 348, that on a general assignment of his separate property by an individual partner, though before a lien attaches by judgment, execution or creditor's bill, he has no right to give preferences to the creditors of the firm in exclusion of his individual creditors. Nor on the other hand, can the partnership, by a general assignment of the partnership, effects, give preference to the creditors of the individual partners over those of the firm. All such assignments are held to be fraudulent and void. b West v. Skip, 1 Vesey, sen. 456. Ex parte Ruffin, 6 Vesey, 119. Ex parte Fell, 10 Vesey, 347. Ex parte Williams, 11 ibid. 3. Ex parte Kendall, 17 ibid. 526. The Master of the Rolls, in Campbell v. Mullett, 2 Swanst. Rep. 608. 610. Ex parte Harris, 1 Maddock's Ch. Rep. 583. Murray v. Murray, 5 Johns. Ch. Rep. 60. Woddrop v. Ward, 3 Dessauss. S. C. Rep. 203. Bell v. Newman, 5 Serg. & Rawle, 78. Doner v. Stauffer, 1 Penn. Rep. 198. White v. Union Insurance Company, 1 Nott & M'Cord's Rep. 557. Ridgley v. Carey, 4 Har. & M'Henry, 167. M'Culloh v. Dashiell, 1 Harr. & Gill. 96. Story, J., in Hoxie v. Carr, 1 Sumner, 181, 182. nership, by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who contracted on the faith of the partnership, and had no notice of the dissolution. The principle on which this responsibility proceeds, is the negligence of the partners in leaving the world in ignorance of the fact of the dissolution, and leaving strangers to conclude that the partnership continued, and to bestow faith and confidence on the partnership name in consequence of that belief. What shall be sufficient constructive or implied notice of the dissolution, has been a vexed question in the books. A notice in one of the public and regular newspapers of the city or county where the partnership business was carried on, is the usual mode of giving the information, and may, in ordinary cases, be quite sufficient. But even the sufficiency of that notice might be questioned in many cases, unless it was shown. that the party entitled to notice was in the habit of reading the paper. Public notice given in some such reasonable way, would not be actual and express notice; but it would be good presumptive evidence for a jury to conclude all persons who have not had any previous dealings with the *firm. As to per- *67 sons who have been in the habit of dealing with the firm, it is requisite that actual notice be brought home to the creditor, or, at least, that it be given under circumstances from which actual notice may be inferred. If the facts are all found or ascertained, the rea • Le Roy, Bayard & Co. v. Johnson, 2 Peters' U.S. Rep. 186. Brisban v. Boyd, 4 Paige, 17. b Vernon v. The Manhattan Company, 17 Wendell, 526. S. C., 22 Wendell, 183. Watkinson v. Bank of Pennsylvania, 4 Wharton, 482. Mitchum v. The Bank of Kentucky, 9 Dana's Rep. 166. Mauldin v. Bank at Mobile, 2 Ala. N. S. 502. Rowley v. Horne, 3 Bingham, 2. The doctrine seems to be, that merely taking a newspaper, in which a notice is contained, is not sonableness of notice may be a question of law for the court, and so it was held in Mowatt v. Howland; but generally it will be a mixed question of law and fact, to be submitted to a jury under the direction of the court, whether notice in the particular case, under all the circumstances, has been sufficient to justify the inference of actual or constructive knowledge of the fact of the dissolution. The weight of authority seems now to be, that notice in one of the usual advertising gazettes of the place where the business was carried on, and published in a fair and usual manner, is of itself notice of the fact as to all persons who have not been previous dealers with the partnership. Nor is notice, in fact, requisite, when a partnership is dissolved by operation of law. A declaration of war puts an end to the continuance of a commercial partnership, between subjects of the two countries, having each his domicile in his own country; and such an official solemn act of government is notice to all the world of the most authentic and monitory kind, and supersedes the necessity of any other.c b When a single partner retires from the firm, the sufficient to charge a party, for it is not to be intended that he reads the contents of all the notices in the newspapers which he may chance to take. The inference of constructive notice from such a source was pretty strongly exploded in some of these cases. 3 Day's Rep. 353. b Godfrey v. Turnbull, 1 Esp. N. P. 371. Parkin v. Carruthers, 3 ibid. 248. Gorham v. Thompson, Peake's N. P. Cas. 42. Graham v. Hope, ibid. 154. Leeson v. Holt, 1 Starkie's Rep. 186. Jenkins v. Blizard, ibid. 420. Williams v. Keats, 2 Starkie's Rep. 290. Wright v. Pulham, 2 Chitty, 121. Rooth v. Quin, 7 Price's Rep. 193. Lansing v. Ten Eyck, 2 Johns. Rep. 300. Ketchum v. Clark, 6 ibid. 144. Graves v. Merry, 6 Cowen's Rep. 701. Martin v. Walton, 1 M'Cord's Rep. 16. Bank of South Carolina v. Hum. phreys, ibid. 388. Whitman v. Leonard, 3 Pick. Rep. 177. Prentiss v. Sinclair, 5 Vermont Rep. 149. Watkinson v. Bank of Pennsylvania, 4 Wharton, 432. Shurlds v. Tilson, 2 M‘Lean, 458. • Griswold v. Waddington, 15 Johns. Rep. 57. 16 Johns. Rep. 494. same notice *is requisite to protect from continued responsibility; and even if due notice be given, yet, if the retiring partner willingly suffers his name to continue in the firm, or in the title of the firm over the door of the shop or store, he will still be holden." But if the use of the name of the former firm be continued without his authority, and the retiring partner had given due notice of the dissolution of the connection, he is not responsible for the use of his name without his consent or authority, and without any act to warrant it; and he is not bound to take legal measures to have the use of the former name of the firm discontinued. Persons must inquire, and know, at their peril, who are truly designated by the firm. A dormant partner may withdraw without giving public notice of the dissolution of the partnership; for, being unknown as a partner, the firm was not trusted on his account, and he is chargeable only for debts contracted during the time he was actually a partner. If a partner retires without notice, he is not liable for a partnership debt contracted afterwards with a person who never knew he was a partner and when he was not so notorious as a partner, as to raise a presumption of that knowledge.d In the case of an Brown v. Leonard, 2 Chitty's Williams v. Keats, 2 Starkie's Rep. 290. ↳ Newsome v. Coles, 2 Campb. Rep. 617. Story on Partnership, 248. • Evans v. Drummond, 4 Esp. N. P. Rep. 89. Armstrong v. Hussey, 12 Serg. & Rawle, 315. Heath v. Sansom, 1 Neville & Manning, 104. 4 B. & Adolph. 172. S. C. It seems to be the doctrine of the case of Evans v. Drummond, and especially of that of Thompson v. Percival, 3 Neville & Manning, 167, that if a creditor of a dissolved partnership accepts for his debt the negotiable paper of the acting partner who continues the business, and who has charge of the effects and of the settlement of the concern, it is evidence of an agreement to discharge the retiring partner. d Carter v. Whalley, 1 B. & Adolph. 11. 1 Lloyd & Welsby, 297. S. C. Story on Partnership, 249. |