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before that time, he had subsequently joined with the assignees of the bankrupt partners in the ship, in making a good title to it, to a purchaser from the assignees (e).

Whenever a communication has been made of the intention of parties to dissolve a partnership, which is in the course of execution, the burden is thrown upon the creditor of proving that the intention has been abandoned (ƒ).

After the dissolution of a firm, and due notice thereof given, when necessary, it is not in the power of one of the members who composed the firm to bind the others, by putting the partnership name on any negociable security, although the instrument existed prior to the dissolution, or was made for the purpose of liquidating the partnership debts, and the party signing was authorised to settle the partnership affairs (g). But the authority and power of the partners continue for some purposes, in regard to transactions which occurred during the partnership (h). Thus, either party may, after a dissolution, receive, or, it seems, release a debt due to the old firm; although it were stipulated as one of the terms of dissolution, that the debt should be paid to the other partner, or to a third person (i); and an admission made by one of two partners (k) after the dissolution of the partnership, concerning joint contracts that took place during the partnership, is competent evidence to charge the other partner (1). And where by a deed of dissolution of partnership, a power was reserved to the remaining partners to use the name of the retiring partner, in the prosecution of all suits; in an action in which judgment had been obtained by all the partners before the dissolution, it was held, that the remaining partners had authority, under that power, to give to the defendant a note for the payment of the sixpences, under the Lords' act, on behalf of themselves and the retiring partner (m).

Where 4., being a member of a partnership consisting of several individuals, drew a bill of exchange in blank, in the partnership

(e) M'Iver v. Humble, 16 East, 169. (f) Paterson v. Zachariah, 1 Stark. R. 71.

(g) Abel v. Sutton, 3 Esp. 108; Ramsbottom v. Lewis, 1 Camp. 281; Thomason v. Frere, 10 East, 418.

(h) Beak v. Beak, 3 Swanst. 627. (i) Porter v. Bristow, 6 M. & Selw. 156; King v. Smith, 4 C. & P. 108. See Biggs v. Fellows, 8 B. & C. 402.

(k) Aliter in the case of part owners of a ship, Jaggers v. Binnings, 1 Stark. 64; Hooper v. Lusby, 4 Camp. 66.

(1) Wood v. Braddick, 1 Taunt. 104. Retiring partner liable for old debt of firm, though the creditors took the bill of the remaining partners, &c. David v. Ellice, 5 B. & C. 196; 7 D. & R. 690. S. C.

(m) Burton v. Issité,5 B. & Ald. 267.

firm, payable to their order; and having likewise indorsed it in the partnership firm, delivered it to a clerk to be filled up for the use of the partnership, as the exigencies of business might require, according to the course of dealing in other instances; and after 4.'s death, and the surviving partners had assumed a new firm, the clerk filled up the bill, inserting a date prior to A.'s death, and sent it into circulation; it was held, that the surviving partners were liable as drawers of the bill, to a bona fide indorsee for value, though no part of the value came to their hands (n).

3rdly. OF CONTRACTS WITH THE ASSIGNEES OF a Bankrupt.

Assignees of a bankrupt cannot be declared against in that character upon contracts entered into by them; but, as they become personally and individually liable on their engagements, they must be sued accordingly (o). And the Bankrupt Act, 6 G. IV. c. 16, sec. 111, provides that they shall not be liable to an action at law at the suit of the creditors, to recover dividends. The rights of the assignees upon a contract made by the bankrupt after his bankruptcy, and before he has obtained his certificate, with a third person; and the competency of the bankrupt to sue on such a contract, or upon an agreement entered into by him with his assig nees, have been already considered (p).

It has been held upon error, after verdict, that assignees may lend, or pay for the use of another, money, part of the bankrupt's estate, and sue as such, for the recovery thereof (q). And a count, laying an account stated with the bankrupt, wherein the defendant was found in arrear, and being so in arrear, "promised to pay the plaintiffs, as assignees," is good; and does not, it seems, require proof of an express promise to pay the assignees (r).

The assignee of a bankrupt cannot join a count on a cause of action accruing to him in his own private right, with a count on his right as assignee (s).

(n) Usher v. Dauncey, 4 Camp. 97. (o) The provisional assignee is not responsible for the fraud of an agent appointed with due care, Raw v. Cutten, 2 M. & Scott, 123; 9 Bing. 96, S. C. Even the official assignee may be sued for money received by him under a void commission. Monck v. Clarke, 10 Bing. 102.

Ante, 159.

(q) Richardson v. Griffin, 5 M. & Selw. 294.

(r) Skinner v. Rebow, T. 8 & 9 G. 2, B. R. M. S.; 1 Selw. N. P., title Bankrupt (VI), 8th ed. 235.

(s) Richardson v. Griffin, 5 M. & Selw. 297.

The creditors, and assignees, of a bankrupt met for the purpose of considering, whether unfinished houses of the bankrupt, (a builder,) should be completed and sold. Some of the creditors, and one of the assignees, (B.,) were disinclined to proceed. At length one of the assignees, A., agreed to find funds for the purpose, until the bankrupt's estate should produce sufficient money; upon which basis the creditors and both the assignees agreed that the work should be finished. The assignee, A., who had agreed to supply funds, employed the plaintiff to do part of the work necessary for the completion of the houses. Lord Kenyon held, in an action against A. and B., that the assignee B., was not liable to the plaintiff. His Lordship observed-"This action goes to charge the assignees personally, and if the plaintiff recover against them they must pay the money, whether they can reimburse themselves from the estate or not. Nothing can charge the assignee B. but a positive and express agreement, or such a tacit acquiescence as plainly indicated his consent. He is not bound by the promise of the other assignee (t); and it is plain he made no contract himself, for A. promised to provide funds, and to him only can the plaintiff look" (u).

By the Bankrupt Act, 6 G. 4, c. 16, s. 75, it is enacted, that any bankrupt entitled to any lease, or agreement for a lease (x), if the assignees accept the same, shall not be liable to pay any rent accruing after the date of the commission, or to be sued in respect of any subsequent non-observance, or non-performance of the conditions, covenants, or agreements therein contained; and if the assignees decline the same, shall not be liable as aforesaid, in case he deliver up such lease, or agreement to the lessor (y), or such person agreeing to grant a lease, within fourteen days after he shall have had notice that the assignees shall have declined as aforesaid; and if the assignees shall not (upon being thereto required) elect, whether they will accept or decline such lease, or agreement for a lease, the lessor, or person so agreeing as aforesaid, or any person entitled under such lessor or person so

66.

(t) And see 2 Pothier, by Evans,

(u) Bothomley v. Usborne & another, Peake, Addl. C. 99.

(x) This does not extend to a parol agreement for a lease, Ex parte Sut

ton, 2 Rose, 86; or to lessee and assignee, note to Wilson v. Greenwood, 1 Swan, 481.

(y) Surety's liability, Tuck v. Fyson, 6 Bing. 321; Inglis v. Macdougall, i Moore, 196.

agreeing, may apply by petition to the Lord Chancellor, who may order them so to elect, and to deliver up such lease or agreement, in case they shall decline the same, and the possession of the premises; or may make such other order therein, as he shall think fit.

The jurisdiction of the Chancellor, under this enactment, is only called into action, where the assignees will not come to a decision whether they will or will not accept the term, &c. If they have already accepted or declined, there is no jurisdiction (z).

It is clear that a term of years or tenancy to which a bankrupt is entitled, does not vest in his assignees absolutely, by virtue of the assignment from the commissioners. The right thereto remains in the bankrupt, until the assignees do some act amounting to an acceptance thereof (a); or the bankrupt has delivered it up to the landlord, under the provision of the act (b).

There have been several decisions on the question, what shall, or shall not be considered an acceptance by the assignees, of a term which was vested in the bankrupt (c). These are collected and arranged by Lord Henley (d) in his treatise on the bankrupt law, in the following manner.

Where the bankrupt was lessee of pasture land, and the assignees suffered his cows to remain on the land for two days, and ordered them to be milked there, Lord Ellenborough was of opinion, that this was an adoption of the lease by the assignees (e); and, in other cases, intermeddling with the farm of a bankrupt(ƒ); or carrying on business upon the premises (g); was decided to fix the assignees. So, where the assignees took actual possession of leasehold premises, in which were goods of the bankrupt, but delivered them up as soon as the goods were sold (h); and in another case, where the bankrupt had a lease of premises, and also a reversionary interest in them, and the assignees sold all his estate and reversionary interest in the premises (i); it was holder,

(2) Ex parte Clunes, 1 Madd. R. 77. (a) The same rule seems to apply to assignees under a general composition deed in trust for creditors, if the trustees were at the time ignorant of the existence of the term; Carter v. Warne, Moody & M. 479.

(b) Copeland v. Stevens, 1 B. & Ald. 593; per Tindal, C. J., in Tuck v. Fyson, 6 Bing. 331.

(c) See Woodf. by Harrison, 209. (d) 2nd ed. 238.

(e) Welsh v. Myers, 4 Camp. 368; Hancock v. Welsh, 1 Stark. N. P. C. 347. (f) Thomas v. Pemberton, 7 Taunt.

206.

(g) Clarke v. Hume, 1 R. & M. 207. (h) Hanson v. Stevenson, 1 B. & Ald. 303.

(i) Page v. Godden, 2 Stark. 309.

that the assignees must be considered as having accepted the lease. A mere nominal dissent is not sufficient; and therefore, though an assignee by letter refuse to take the estate, yet, if by acts he take advantage of it, he will still be bound (k). Where the assignees put up the premises to sell by auction, and there was a purchaser, and a deposit paid, but the contract of sale went off without the assignees showing why they did not enforce the sale; they were considered liable (7). And in another case, where they had placed a board up, with a view to dispose of the premises, they were holden liable, in an action for use and occupation, for a year's rent (m).

But where the assignees advertised the lease, without stating themselves to be the owners or possessors, and no bidding offering, they never took actual possession of the premises, the Court of King's Bench held, that the mere putting them up to sale did not necessarily bind them; because it might be only an experiment to ascertain their value (n). So, where they allowed the effects to remain upon the premises for nearly twelve months after the bankruptcy; and for the purpose of preventing a distress paid the arrears of rent due, at the same time giving notice to the landlord that they did not intend to take the lease unless it could be advantageously disposed of; and afterwards, having put up lease to auction, and finding no bidders, never took actual possession of the premises, though they kept the key for nearly four months afterwards, the landlord having never demanded it; Lord Ellenborough held, that they had not made themselves assignees of the lease (o). It has been also holden, that a release by the assignees of an under-tenant, does not amount to an acceptance by them of the original lease (p).

the

4thly. OF CONTRACTS WITH THE ASSIGNEES OF AN INSOLVENT DEBTOR.

The situation of these assignees, is in many respects analogous to the position of the assignees of a bankrupt, in regard to the law of contracts. They are not liable to be sued at law by the creditors, for dividends. In relation to contracts made by the insolvent after his petition, and before his final discharge (q), they

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