erty or interest in the goods intended to be purchased. There is no distinction in principle between that case and this. We conclude that the contract in question is not within the contemplation of our statute of frauds, which provides that no evidence of a contract "for the creation or transfer of any interest in lands, except leases for a term not exceeding one year," is competent, "unless it be in writing and signed by the party to be charged, or by his lawfully authorized agent." Code, § 3663.

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4. It will be observed that the lands, as we have before stated, were not purchased by the contract for the copartnership, but by a subsequent purchase made in pursuance thereof. The case then assumes the aspect of the purchase of lands by a copartnership. While the title of the lands was, under this purchase, vested in defendant, they were really held by him in trust as partnership property. Plaintiff's interest in the lands is that of a partner, as prescribed by the contract of copartnership. It is plain that plaintiff is not entitled to a partition of the lands, as he specially prays in his petition. Defendant furnished the money to purchase the lands, and under the contract of copartnership he is to be allowed a return thereof, with 10 per centum interest. After the sale of the lands and the repayment of the sum he advanced, with interest and taxes, the lands or the profits, if a sale shall be made, are to be divided between the parties. Plaintiff is entitled to no part of the lands or profits until defendant be paid and the partnership be settled. It is not made to appear that plaintiff is entitled now to enforce a sale of the lands and the final settlement of the partnership, if such relief could be granted under the general prayer of his petition. He is surely not entitled to a partition of the lands for which he specially prays. We therefore think that his petition ought to be dismissed, but he ought not to be precluded from seeking in a proper action the settlement of the partnership and the recovery of his interest as a partner in the lands, or the profits thereof, whenever he may be able to establish his right to enforce such a settlement of the partnership. The petition is therefore dismissed, without prejudice to such an action. Affirmed.

MOLINEAUX v. RAYNOLDS et al.

(Court of Chancery of New Jersey, 1896. 54 N. J. Eq., 559, 35 Atl. 536.)

REED, V. C. This bill is filed for a partition of a tract of land, upon which is a factory, at Bergen Point, N. J. It is admitted that the present owners of the property are Charles T. Raynolds, Thomas B. Hidden, the two defendants, and Gen. Molineaux, the complainant. It is also admitted that they own it as partners. It is admitted by counsel that, if the property is subject to a partition suit, it should be sold, and

not divided. Two questions are presented for solution: The first is whether the suit for partition is well brought. If it is properly brought then the second question is, what are the proportionate interests of the owners in the property?

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The first question mooted springs out of the existence of the De Floras suit. The counsel for the defendants insist that, so long as any claim against the old firm remains unsatisfied, so long each partner has a right to have the firm assets held as such to be applied in liquidation of the claim; that until all such claims are satisfied no partner has a right to demand a division of the firm property. The equitable rule thus invoked is entirely settled. The property of a firm, whether personal or real, is a fund to be primarily applied to the payment of its debts; and each partner has a right to have it so appropriated, to the end that he himself may be relieved from any personal liability to answer for the firm debts. In England, land as well as personalty belonging to a firm is regarded as personal assets. Lindl. Partn. par. 343. In this country the land is held to be personal assets so far only as it may be needed to pay firm creditors. National Bank of Metropolis v. Sprague, 20 N. J. Eq. 13; Freem. Co-Ten. par. 118. Out of this equity of each partner to have the firm property applied to the payment of firm debts, in order that he may be discharged from personal liability, has emerged the rule that the partition of the real property of a firm will not be decreed, so long as debts of the partnership remain unliquidated. Pennybacker v. Leary, 65 Iowa, 220, 21 N. W. 575; Kruschke v. Stefen, 83 Wis. 373, 53 N. W. 683; Mendenhall v. Benbow, 84 N. C. 646; Freem. Co-Ten. par. 443. By the rule laid down in these cases, the only method by which a partner, under such conditions, can compel a division of the firm property, is by a bill to administer and settle the partnership affairs. It is apparent, however, that, inasmuch as the ground for refusing partition is that partners may be protected from future calls to pay firm debts, therefore, if it should be made to appear that the property involved in the application for partition will not be needed to meet such obligations, the objection to the distribution of the property disappears. Now, it appears in this case that there is other real estate in Brooklyn, belonging to this firm, of the value of $150,000. It also appears that the De Floras suit is pending in the courts of New York. The property and the pending suit are therefore both in the state of the firm's domicile. It is beyond the realms of probability that the final judgment in the De Floras suit, which suit has been dragging along for 20 years, can reach an amount which will begin to exhaust the Brooklyn property. Although it appears that a proceeding for partition of that property also had been commenced in the courts of New York, that proceeding has not gone to a decree, and it is in that suit that the defense set up here can be more appropriately interposed. Under these conditions, I do not see any substantial ground for thinking that the interest of any member

of the firm will be menaced by the severance of the title to this property as is proposed by this suit.

I will advise a decree in conformity to these views.

SECTION 7.-TRANSFER OF PARTNERSHIP PROPERTY.

I. BY ACT OF THE FIRM.

Ex parte RUFFIN.

(In Chancery, before Lord Eldon, C., 1801. 6 Ves. 119.)

In June, 1797, Thomas Cooper, of Epsom, brewer, took James Cooper into partnership. That partnership was dissolved by articles 'dated the 3d of November, 1798, under which the buildings, premises, stock in trade, debts, and effects were assigned to James Cooper by Thomas Cooper, who retired from the trade. Upon the 2d of April, 1800, a commission of bankruptcy issued against James Cooper, under which the joint creditors attempted to prove their debts, but the commissioners refused to permit them, upon which a petition was presented to Lord Rosslyn, who made an order that the joint creditors should be at liberty to prove, with the usual directions for keeping distinct accounts, and an application of the joint estate to the joint debts and of the separate estate to the separate debts. At a meeting for the purpose of declaring a dividend, the commissioners postponed the dividend, in order to give an opportunity of applying to the Lord Chancellor, in consequence of which, this petition was presented, praying that the partnership effects remaining in specie and possessed by the assignees may be sold, and that the outstanding debts may be accounted joint estate.

By the articles of dissolution the parties covenanted to abide by a valuation to be made of the partnership property, and James Cooper covenanted to pay the partnership debts then due and to indemnify Thomas Cooper against them, and Thomas Cooper convenanted not to carry on the trade of brewer for 20 years within 20 miles of Epsom. A bond for £3,000, the calculated value of the partnership property assigned, was given to Thomas Cooper by James Cooper and his father, as surety. In pursuance of the covenant, the partnership property, consisting of leases, the premises where the trade had been carried on, stock, implements, outstanding debts, and other effects, were valued by arbitrators at £2,030, after charging all the partnership debts then due. James Cooper, by his affidavit, stated that all the joint creditors. knew of the dissolution and the assignment of the property, that ad

vertisements were published, and the deponent, after the dissolution, received many debts due to the partnership, but paid more on account of the partnership. His father, by affidavit, stated that he paid the interest of the bond regularly, and intended to pay the principal when due.

ELDON, L. C. This case is admitted, unless Ex parte Burnaby, 1 Cooke's Bank. Law (4th Ed.) 253, applies to it, to be new in its circumstances. Therefore, if I was of opinion that the petition could be supported, I should be very unwilling to express that in bankruptcy, where my opinion would not be subject to review. If the case I have mentioned has decided the point, there is the authority of Lord Hardwicke upon it, which would weigh down the most considerable doubt that I could be disposed to entertain. I feel great difficulty in complying with the prayer of the petition, and, when I read it, was struck with it as a new case, and as one upon which I do not clearly see my way to the relief prayed. It is the case of two partners who owed several joint debts and had joint effects. Under these circumstances their creditors, who had a demand upon them in respect of those debts, had clearly no lien whatsoever upon the partnership effects. They had the power of suing, and by process creating a demand that would directly attach upon the partnership effects. But they had no lien upon or interest in them in point of law or equity. If any creditor had brought an action, the action would be joint. His execution might be. either joint or several. He might have taken in execution both joint and separate effects. It is true that the separate creditors of each, by bringing actions, might acquire a certain interest even in the partnership effects, taking them in execution in the way in which separate creditors can effect such property. But there was no lien in either. The partnership might dissolve in various ways: First, by death; secondly, by the act of the parties, that act extending to nothing more than mere dissolution, without any special agreement as to the disposition of the property, the satisfaction of the debts, much less any agreement for an assignment from either of the partners to the others. The partnership might also be dissolved by the bankruptcy of one or both and by effluxion of time. If it dissolved by death, referring to the law of merchants and the well-known doctrine of this court, the death being the act of God, the legal title in some respects, in all the equitable title, would remain notwithstanding the survivorship; and the executor would have a right to insist that the property should be · applied to the partnership debts. I do not know that the partnership creditors would have that right, supposing both remained solvent. So, upon the bankruptcy of one of them, there would be an equity to say the assignees stand in the place of the bankrupt, and can take no more than he could, and, consequently, nothing until the partnership debts are paid. So, upon a mere dissolution without a special agreement, or a dissolution by effluxion of time, to wind up the accounts, the debts must be paid, and the surplus be distributed in proportion to

the different interests. In all these ways the equity is not that of the joint creditors, but that of the partners with regard to each other, that operates to the payment of the partnership debts. The joint creditors must of necessity be paid, in order to the administration of justice to the partners themselves. When the bankruptcy of both takes place, it puts an end to the partnership certainly. But still it is very possible, and it often happens in fact, that the partners may have different interests in the surplus, and out of that a necessity arises that the partnership debts must be paid; otherwise, the surplus cannot be distributed according to equity, and no distinction has been made with reference. to their interests, whether in different proportions or equally. Many cases have occurred upon the distribution between the separate and joint estates, and the principle in all of them, from the great case of Mr. Fordyce, has been that, if the court should say that what has ever been joint or separate property shall always remain so, the consequence would be that no partnership could ever arrange their affairs. Therefore a bona fide transmutation of the property is understood to be the act of men acting fairly, winding up the concern, and binds the creditors; and therefore the court always let the arrangements be as they stand, not at the time of the commission, but of the act of bankruptcy.

Thomas Cooper is admitted to be solvent. He certainly has no such equity as if the partnership had been dissolved by bankruptcy, death, effluxion of time, or any other circumstance not his own act. But he dissolves the partnership a year and a half ago, and, instead of calling upon these effects according to his equity at the dissolution to pay the partnership debts, he assigns his interest to the other, to deal as he thinks fit with the property, to act with the world respecting it, desiring only a bond to pay a given value in three or four years. Therefore he or his exccutors could not sue. If it was necessary for the creditors to operate their relief through his equity, he has no equity. It is then said, and the circumstance had struck me, that all the property is not assignable at law-for instance, the debts; but, as between the two Coopers they were the property of the bankrupt, for debts are within the statute of King James, and, if left in the order and disposal of the bankrupt, he is proprietor of the debt. Therefore Thomas Cooper could never set up the insufficiency of the legal operation of the assignment against his own deed. The assignment was not made subject. to the payment of the debts, but in consideration of a covenant, leaving no duty upon the property, but attaching a personal obligation upon the assignee to pay the debts. The creditors, therefore, cannot rest upon the equity of the partner going out. I was struck with the argument of inconvenience. The inconvenience on all sides is great. Το say this seems to me a monstrous proposition: That which, at any time during the partnership, has been part of the partnership effects, shall in all future time remain part of the partnership effects, notwithstanding a bona fide act. Suppose, an inprobable case, that the partners