tiring partner transferred his interest to several partners, who continued the business, and it was held that the firm creditors had no such lien upon the property as would prevent the disposal of the property by the joint act of those who had become the owners or deprive the creditors of the new firm of a priority. Smith v. Howard sustained an assignment by the two partners, to whom the other partner had transferred his interest for the benefit of creditors, in which a note indorsed by a third person as their security and given to the retiring partner in payment for his interest was preferred. In Baker's Appeal a like assignment by the continuing partners, preferring the debtsof the new firm, was sustained. These cases are clearly distinguishable from this. If the partners who had acquired the joint right to dispose of the property had exercised it, without fraud, and as the creditors of the first or former firm had no specific liens, they could not, in the absence of any fraud, have impeached the transfer.

Judge Gibson, in Doner v. Stauffer, supra, intimates an opinion upon. a theoretical case adverse to the views now taken. While restricting the purchaser of the share of a single partner to what might remain after payment of the partnership debts, he says: "A curious question might arise whether separate purchasers of the shares, respectively, would stand in the relation of partners, so as to enable the joint creditors to follow the goods"-and intimates an opinion in the negative; but the question was not in the case. To me it seems illogical, the

prem ises being granted that a sale by a partner, or upon an execution against him for an individual debt, carries only a right to what may rema in after the payment of the partnership debts, thus affirming the right of partnership creditors to a priority of payment and a quasi lien on the joint effects, to declare that such preference is destroyed and right lost by distinct, independent transfers of the individual interests of the several partners, and that, while each partner, or the creditor of each individual partner, can only have dominion or acquire a title for the surplus, when each has exercised this right, or the individual creditors of all have seized and sold this right to the surplus, the rights of each are at once enlarged by relation as of the time. of the first transfer of interest of any one of the partners to the destruction of the acknowledged rights of the partners inter se and of the joint creditors.

In Brinkerhoff v. Marvin, 5 Johns. Ch. 320, separate and successive judgments against individual partners for a single partnership debt were held entitled to be paid- from the partnership funds; the chancellor giving the same effect to the two judgments as if they had been consolidated in a joint judgment against both the partners.

This is, so far as reported decisions have come under my observation, a case of the first impression; but by the application of wellestablished principles, and carrying to their legitimate and logical results the doctrines fairly deducible from authoritative adjudications, and giving proper effect to the recognized rights and equities of part

nership creditors, as now understood, the plaintiff did not acquire a valid title to the partnership effects, or to any part or undivided share or portion thereof, so as to give her a property in the corpus of the goods and effects as against the judgment and execution creditors of the firm.

The judgment should be reversed, and a new trial granted.

SECTION 8.-EFFECT OF DEATH OF PARTNER ON FIRM PROPERTY.

An exception is to be made of two joint merchants; for the wares, merchandizes, debts or duties, that they have as joynt mer› chants or parteners, shall not survive, but shall go to the executors of him that deceaseth; and this is per legem mercatoriam, which (as hath beene said) is part of the lawes of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet.-Co. Litt. 182a.

JEFFEREYS v. SMALL.

In Chancery, before Sir Francis North, L. K., 1683. 1 Vern. 217.)

Two persons having jointly stocked a farm, and occupied it as joint tenants, the bill was to be relieved against survivorship, one of them being dead; and though it was proved in the cause that the deceased was informed what the consequence of law was in case he should die, and that he thereupon replied he was content the stock' should survive, yet the Lord Keeper was clear of opinion that the plaintiff ought to be relieved; and said, if the farm had been taken jointly by them, and proved a good bargain, there the survivor should have had the benefit of it; but as to a stock employed in way of trade, that should in no case survive. The custom of merchants as to bills of exchange is now extended to inland bills, and the custom of merchants is extended to all traders to exclude survivorship; and though it is common for traders in articles of co-partnership to provide against survivorship, yet that is more than is necessary; and he said he took the distinction to be, where two become joint tenants or jointly interested in a thing by way of gift or the like, there the same shall he

subject to all the consequences of law; but as to a joint undertaking in the way of trade or the like, it is otherwise, and decreed for the plaintiff accordingly.1

ANDREWS' HEIRS v. BROWN.

(Supreme Court of Alabama, 1852. 21 Ala. 437, 56 Am. Dec. 252.) Bill by Thomas Brown, the surviving partner of the firm of E. I. Andrews & Co., against the representatives and heirs of E. L. An-drews and Z. Andrews, the deceased partners, for the purpose of obtaining control of certain stock and real estate standing in the name. of the deceased partners and subjecting it to the partnership debts. The bill alleged that the property, although standing in the names. of the defendants individually, was partnership property, and also the insolvency of the firm. The property had belonged formerly to a firm composed of E. L. and Z. Andrews, and when the firm with Brown as a member was formed the land was carried into the new firm and became part of the capital. A supplemental bill was filed, stating that part of the real estate had been purchased by E. L. Andrews for the firm at a foreclosure sale, and the property had been redeemed, and the money paid to Campbell & Chandler, attorneys for the deceased partners, and prayed that this be decreed to stand in place of the land itself. The chancellor decreed in favor of the complainant. Defendant brought error.

DARGAN, C. J. When a partnership is dissolved by the death of one or more of the partners, the legal title to all the personal property and choses in action belonging to the firm becomes vested exclusively in the survivor; not, indeed, for his own peculiar benefit, but for the purpose of paying the debts, and then dividing the net balance amongst those entitled, giving to the representatives of the deceased partner the same interest he would have taken had he been in life, and the firm had been dissolved, not by death, but by mutual. consent. But as respects real property the case is different at law; for the legal title descends to the heir at law of the deceased partner, and a court of law, looking to the legal title alone, cannot regard or protect the mere equities of others. In a court of equity, however, real estate belonging to the firm is considered as personal property to this extent, at least: that it is liable to pay the debts of the firm, and then to distribution between the partners in the same manner as

"When it is said that by the law merchant the jus accrescendi, or right of survivorship, does not take place among partners in trade, it is meant that It does not take place for the exclusive benefit of the survivor, as it does in a joint tenancy at the common law, but that the survivor holds the partnership fund for the payment of the partnership debts and the settlement of the partnership concerns, and the balance, if any, to be distributed equitably between the representative of the deceased partner and the survivor." Per Walworth, C., in Egberts v. Wood, 3 Paige (N. Y.) 517, 526, 24 Am. Dec. 236.

if it had been personal instead of real estate. These charges upon ,the real estate, being prior to the claims of the representatives of the deceased partner, override his wife's title to dower, as well as the title of his heir at law. The consequence is that the heir at law holds the legal title subservient to or in trust for the surviving partner, who is charged with the payment of the debts. These principles of law, in my opinion, are so well settled that they are no longer the subject of controversy. Story on Partn. 127. et seq.; Coll. on Partn. (Perkins' Ed.) 183-185; Pugh v. Currie, 5 Ala. 446; Pierce v. Trigg, 10 Leigh (Va.) 406; Delmonico v. Guillaume, 2 Sandf. Ch. (N. Y.) 366; Dyer v. Clark, 5 Metc. (Mass.) 562, 39 Am. Dec. 697; Ripley v. Waterworth, 7 Ves. 425; Dale v. Hamilton, 5 Hare, 369.

Inasmuch as the real estate is considered as personal for the purpose of paying the debts of the firm, and the surviving partner is charged with the duty of paying those debts, it must of necessity follow that he has the right in equity to dispose of the real estate for this purpose; for it would never do to charge him with the duty of paying the debt, and at the same time to take from him the means of doing it. Therefore, although he cannot by his deed pass the legal title to the purchaser, which descended to the heir of the deceased partner, yet, as the heir holds the title in trust to pay the debts, and the survivor is charged with this duty, his deed will convey this equity to his purchaser, and through it he may call on the heir for the legal title and compel him to convey. See Delmonico v. Guillaume and Dyer v. Clark, supra.

Applying these principles to the facts exhibited by the pleadings and proof in the case before us (but which we will not state in detail in this opinion), we can perceive no error in the decree; for the proof, we think, is abundant to show that, although the legal title to the lands was held by E. L. Andrews alone, nevertheless they belonged to the firm as partnership property, and were so treated by all the members of the firm. They never did belong exclusively to E. L. Andrews. Consequently the claims of the creditors of the firm are superior to his widow's right of dower, as well as to the legal title of his heirs at law. The lands were purchased with the funds of E. L. & Z. Andrews, who were then partners, and stood upon their books as partnership property, and when the new firm was formed, composed of E. L. and Z. Andrews and Thomas G. Brown, these lands. were carried into the new firm as part of its capital, and were therefore partnership property.

As to the stocks purchased with the funds of the new firm, it is very clear that they also are subject to the control and disposition of the surviving partner, Brown, notwithstanding they stand on the books of the bank and the insurance company in the name of E. L. Andrews alone. In reference to the money received by Messrs. Campbell & Chandler, growing out of the redemption of one of the lots by Mr. Gliddon, we think it should stand in the place of the lot itself,

and consequently subject to the disposition made by Brown of the lot.

We are satisfied there is no error in the decree, and it must be affirmed..

I will observe, in conclusion, that we do not intend, by anything said in the foregoing opinion, to hold that a surviving partner is authorized to sell real estate for the simple purpose of making distribution amongst the partners themselves and their representatives. That question is not raised in the case, and has not been considered. We only intend to decide this: The firm being insolvent, the surviving partner may dispose of the whole property to pay the debts, whether that property consist of real or personal estate.

The decree is affirmed.

SHANKS v. KLEIN.

(Supreme Court of the United States, 1881. 104 U. S. 18, 26 L. Ed. 635.) MILLER, J. This is a bill in chancery, filed by John A. Klein and others against David C. Shanks, executor of the last will and testament of Joseph H. Johnston. The substance of the bill is that in the lifetime of Johnston there existed between him and Shepperd Brown a partnership, the style of which was Brown & Johnston; that their principal place of business was at Vicksburg, in the state of Mississippi, where they had a banking house; that they had branches and connections with other men in business at other places, among which was New Orleans; that they dealt largely in the purchase and sale of real estate, of which they had a large amount in value on hand at the outbreak of the recent Civil War; that this real estate was in different parcels and localities, and was bought and paid for by partnership money, and held as partnership property for the general uses of the partnership business; and that early in the war, namely, in 1863, Johnston died in the state of Virginia, where he then resided, leaving a will by which all his property, including his interest in the partnership, became vested in Shanks, who was appointed his executor.

It seems that both Brown and Johnston were absent from Mississippi and from New Orleans during the war; the one being in Virginia and the other in Georgia. Upon the cessation of hostilities, Brown returned to New Orleans, and visited Vicksburg to look after the business of the firm of Brown & Johnston and the other firms with which that was connected. Finding that suits had been commenced by creditors of the firm against him as surviving partner, and in some instances attachments levied, he became satisfied that, unless he adopted some mode of disposing of the partnership property and applying its proceeds to the payment of the debts in their just order, the whole would be wasted, or a few active creditors would