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lic career was untarnished from its humble beginning to its shining close. Our country has been fortunate in many such, and although the name of Chase was not one to conjure with in his life-time, it must always be pronounced with profound respect and gratitude.

ages of eighty-four and eighty-two preserve their physical elasticity, and easily maintain their preeminence in the respective realms of moral and mental philosophy and jurisprudence. Both are Williams College men, and have done much to make that institution a great power in education. In a recent discourse at Williamstown Doctor Hopkins stated that of the two thousand eight hundred and sixty graduates of the college, two thousand two hundred and twenty-nine have sat under his instruction, in the sixty-one years during which he has been connected with it. We enjoyed the privilege of listening a few days ago to a lecture delivered by him to the senior class on "Method," whichwas a delightful treat, and which any lawyer could have listened to with pleasure and with profit. We do not hesitate to pronounce Doctor Hopkins at once the most original and the most influential instructor who has ever lived in this country, combining grace with strength, simplicity with profundity, wit with reason, and the most cheerful tolerance of others' opinions with a mild and per-Trunkey, J., said: "It is plain that the grant is for suasive assertion of his own. Mr. Field, who is trying to persuade himself that he has "retired" from practice, recently improved the occasion of a lawsuit at Buffalo by occupying an evening with a public address to the lawyers and laity of that city on "Codification," to the great delight of his audi

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The remains of the late Chief Justice Chase, after resting for thirteen years at Washington, have been removed to Cincinnati, and with every mark of public respect, and in presence of a large and distinguished concourse, have been laid in Spring Grove cemetery in that city. The principal addresses of the occasion were delivered by exGovernor Hoadly and Mr. Justice Matthews. We shall hope to see them in print, for a more appropriate selection could not have been made, and we may be sure that they did ample justice to the eminent merits and abilities of the distinguished senator, financial minister and chief justice. It is in his career as a statesman rather than as a judge that Mr. Chase will be best remembered, and will shine brightest in the pages of history. His administrative abilities were of the highest order of merit. But he will hardly be classed among the great lawyers and judges, certainly not named with Marshall and Taney as a chief magistrate. Probably he regarded the supreme bench as a helpful stepping-stone, or a welcome retreat, for it is not to be disguised that he strongly wished for the presidency, and it must be conceded that the country might easily have done worse than to have taken him for the head. But whatever his defects or his disappointments he will be regarded as a strong, pure, patriotic and dignified man, whose sympathies were with the lowly and the good, and whose pub

The decision of the Pennsylvania Common Pleas in Berridge v. Glassey, which was reported in full in 32 ALBANY LAW JOURNAL, and the soundness of which we doubted, has been overruled by the Supreme Court. The decision below was that in a lease to A., her heirs and assigns, of ground on which her devisor has erected buildings by mistake, describing the ground and reciting its location, for the term of five years, and reserving an annual rent to the lessor, his heirs and assigns, the words "for the term of five years were repugnant to the fee conveyed by the premises, and must be rejected in construing the deed, and the lessee took a fee subject to a perpetual ground rent. The court, by

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a term of years. That the thing granted is described between the word 'assigns' and the phrase limiting the term of the grant is immaterial; the sense is the same as if the limiting words immediately followed the word 'assigns,' and preceded the words descriptive of the thing granted. There is no distinct part of the deed defining the estate; this is done in the premises by the settled rule already noted a grant to a man and his heirs for a term of years, reserving rent, is a lease for the term. The intention of the parties is to be ascertained from the entire instrument, not from particular words or phrases without reference to the context; and the instrument shall operate according to the intention, unless it be contrary to law. Where the meaning is doubtful the circumstances at the

making of the instrument, and the subsequent acts of the parties, are to be considered in determining the sense of the words. An estate in fee simple cannot be vested in a man without the word 'heirs,' but that word is often used in mere executory contracts for the sale of land, and in leases for a definite period of time. It is of no consequence what word is used to pass the estate, as if it be 'lease'

the context will show whether it is used to vest an

estate for years, or for life, or in fee simple."

This

view is more consonant with reason than the technical and artificial construction of the Common Pleas.

NOTES OF CASES.

TWO recent cases concerning marriage will inter

Two recent cases conconilawyers. In McKean v

McKean, New Jersey Court of Chancery, September 25, 1886, it was held that a husband who deserts his wife, makes foul charges against her, and by lying procures her engagement ring, and never returns it, will not be believed when he says he wishes to live with her as her husband, and the

tion between the parties. The plaintiff, by her statement of claim, alleged that previously to, and in contemplation of their marriage, Patrick Vincent contracted with and represented to her that he would devise by will, or otherwise settle after his death, the said eight cottages upon the plaintiff in fee simple, and that a memorandum in writing of such contract or representation was contained in a letter dated the 29th of July, 1880, signed by him and sent to the plaintiff, the material part of which letter was as follows: "And now, my dearest Liz

wife's prayer for a divorce will be granted. Bird, V. C., said: "Mrs. M. filed her petition for divorce upon the ground of desertion. The period of conjugal felicity which these parties enjoyed was measured by a few months. Mr. M. then left for Virginia, his wife and child remaining in New Jersey. He sent her a few dollars on three or four occasions; in all, less than fifty. He then went to Baltimore, and after being there awhile he wrote Mrs. M. to come to him, and sent her money for that purpose. They remained in Baltimore a short time, when she returned to her parents in New Jersey. To this pe-zie, as life is very uncertain at my time of life, and riod there is some uncertainty as to the true rela- as you are of all the world the person I love best, I tions between them, except as to the charge by the hereby will and bequeath to you after my death the wife that Mr. M. frequently accused her of infi- eight cottages in Peckham's Walk, occupied by delity. But after her return to her parents he Chas. Warren and Ed. Neath and others. You will called on her, and had a private interview with her. keep this letter as a proof of my intention, in case This was in November, 1882. During this inter- of any sudden change occurring to me rendering view he asked her for her engagement ring, and me incapable of, or not in a state of mind fit for promised her upon his honor to return it to her. the performance of so important a document, and He did not return it. He left her then, and took making null and void any former will and bequest the ring with him. He says that he told her she I may have made previously. I am doing this, my could have it again if she would live with him. dearest, as a temporary provision for you in case of She says that he took and kept it without any quali- any emergency." The letter concluded: “I am ⚫fication whatever. In my judgment this act of the your future husband in its most holy sense, Patrick husband in taking this ring and carrying it away, Vincent." The plaintiff alleged that in reliance without any subsequent efforts at reconciliation, is upon such contract or representation the marriage most ample proof of a determination to separate took place. Patrick Vincent died, leaving a will himself from his wife and to desert her, unless it is whereof the defendants were executors and trusmade to appear that she was first in fault, and had tees, but the will did not leave the eight cottages taken some step to sever the marital relation. I to the plaintiff, and the plaintiff brought this acfind no such fault in her conduct, although not in tion. Stirling, J., said: "It is clear on the face of all respects of the highest rectitude. Why did the the letter that it was written in the expectation husband want a private interview? He asked her that at no distant time a marriage would be solemfather for such interview. I conclude it was for nized. Then I come to consider, does it in other the sole purpose of securing the engagement ring, respects satisfy the requirements of a memoranand of thus proving to her the entire absence of all dum? I must construe it as the court would conaffection or regard. Now, in addition, see how struc any other written instrument. I cannot find this view is sustained by his previous conduct. He that it satisfies the requirements of a memorandum, accused her repeatedly of infidelity without the either as to consideration or promise. As to the slightest proof. He repeated this charge to his and consideration, it is not expressed to be the marher neighbors and friends. He wrote her a vile riage. The consideration expressed is uncertainty and most insulting letter, in which the charge was of life and affection for the plaintiff. As to promagain made. But now he says he loves her, and is ise, the language is not that of agreement but of willing and anxious to live with her as his wife. present testamentary disposition. If Mr. Vincent This is profession, but I am satisfied without genu- had died the next day, the letter, if witnessed by ine repentance. He never has gone to his wife and two witnesses, might have taken effect as a testaoffered to restore the engagement ring, nor has he mentary disposition. The writer was aware that ever withdrawn the foul charges made both to her the letter was not a formal will, and therefore says, face and her friends. I need not go further." 'you will keep this letter as a proof of my intenWhat bothers us is to conjecture why, if he wanted tion.' He states that he is doing this as a tempoto prove that she had forfeited his love, he did not rary provision for his intended wife in case of any get her wedding ring. Perhaps because the engage-emergency - that is, in case of some sudden change ment ring was the more valuable. Let this be a les-rendering him incapable of executing a will. I am son to wives who do not want a divorce, to stick to their rings.

In Vincent v. Vincent, 55 L. T. Rep. (N. S.) 181, it was held that the memorandum of an agreement made in consideration of marriage must show in fact, or by inference, that the marriage is the consideration, and it is not sufficient to show by parol evidence that a marriage was in fact in contempla

of opinion that the letter is not a memorandum of an agreement made in consideration of marriage. I am not satisfied that the parties were intending to enter into a binding agreement. The action must be dismissed."

In Strike v. Collins, Q. B. Div., 54 L. T. Rep. (N. S.) 152, it was held that a by-law made under a local act for regulating markets is not unreason

In Dickson v. Great Northern R. Co., Q. B. Div. 55 L. T. Rep. (N. S.) 184, it was held that on a ticket for the conveyance of a dog from London to Newcastle, the condition "notice is hereby given that the company are not, and will not be common carriers of dogs, nor will they receive dogs for conveyance except on the terms that they shall not be responsible for any amount of damages for the loss thereof, or for injury thereto, beyond the sum of 21. unless a higher value be declared at the time of de

able, or in restraint of trade by reason of its setting apart a part of a market for sale by wholesale only, and providing a penalty for selling by retail in that part. Mathew, J.: "In this case I am of opinion that the justices were wrong in coming to the conclusion that the council had no power to make this by-law. It was framed under an act of Parliament enabling the council to find, provide and appropriate proper and convenient places within the borough for holding and keeping public fairs and markets for the sale of horses, sheep, swine or other live cat-livery to the company, and a percentage of five per tle, corn or other grain, fish, butcher's meat, poul- cent be paid upon the excess of value beyond the try, milk, butter, eggs, vegetables and other viands 21. so declared," is a just and reasonable condition and provisions, goods, wares and merchandises. within the meaning of the seventh section of the Under these powers the council clearly had a right Railway and Canal Traffic Act of 1854. Mathew, to say in what part of the space found and pro- J., said: "The argument in support of the view vided for holding markets one commodity should taken by him is that the company are common carbe sold, and in what part other trades should be riers of dogs as of goods, and that the particular carried on. They have clearly, in that way, power contract made with the plaintiff is ultra vires, it beto regulate the trades to be carried on, and to frame ing impossible for the company to exonerate themrules of this character. So far as this I do not un- selves from the liability imposed upon them as derstand that the question is disputed as to the lo- common carriers, and also that the conditions of calities in which particular articles are to be sold. the contract are unreasonable. I am clearly of But it is said that the council had no power to go opinion there is no evidence that the company are further and set apart different places for sale by common carriers of dogs, and I am equally clearly wholesale and sale by retail. Now, it seems to me, of opinion that there is nothing in any act of Parthat nothing could be more embarrassing to whole- liament imposing upon the company the duty of sale salesmen than to have retail sellers endeavor- carrying dogs as common carriers. * * * Apart ing to carry on their business alongside them at the from the statute could any thing be more reasonasame time. It seems to me therefore that this regu-ble than for the company to say that they will be lation is calculated to further the object to secure liable up to a certain limit, but beyond that which these powers were given to the council. But the sender may either be his own insurer or pay a second point is also taken. It is said that the them a rate for insuring the animal? The great word 'market' has a technical meaning, and that majority of dogs are not worth more than 21. What wherever a market is provided and set apart by can be more reasonable than to say to the owner these by-laws, there a market in the technical sense that if the dog is worth more he must either send of the word is established, and persons have by him at his own risk or pay an insurance rate?" consequence a right of selling either wholesale or The dog in this case was a greyhound bitch, named retail, as they choose. I think that the whole of Dutchoven, worth £60, entered to compete for a the rules must be construed together. Clearly it cup of the value of £1,000. The porter ran the was not the intention of the council in framing wheel of a loaded barrow over her tail, seriously them to create, in the first place, a market in the injuring and permanently twisting it, whereby she full sense of the word, and then afterward to stulwas completely incapacitated from running in tify themselves by derogating from the original matches, and seriously depreciated for coursing grant. I do not think therefore that the word purposes. This is a mystery to us, but we suppose 'market' is used anywhere in these by-laws in a the dog was unable to run straight after her tail technical sense." Smith, J., said: "I think that it was twisted. is most reasonable that there should be a regulation providing that cattle shall be dealt with in one part and sheep in another, or that vegetables shall be sold by wholesale in one part and by retail in an

other. To my mind it would be most inconvenient THE

for the public to have the wholesale and retail traders mixed, and I think, that as it is more convenient to sever the two trades, the by-law is not in restraint of the business of the market. But then it is said that the law knows no distinction between sale by wholesale and by retail. No authority has however been cited to lead me to that conclusion, and I do not think that any tribunal would have any difficulty in determining, in any particular instance, whether a man was selling by wholesale or by retail."

EQUITY OF PARTNERSHIP CREDITORS.
I.

fact that the law recognizes the right of firm creditors to be first paid out of firm property in preference to the individual creditors of the members of the partnership is undisputed. Unfortunately the able rule is founded has not been agreed upon by the principle upon which this eminently just and reasoncourts of the different States. This want of harmony regarding a branch of jurisprudence of such daily and universal importance is to be deplored, and has already borne its natural fruit of conflicting decisions. Some eminent jurists have advanced the idea that partnership creditors have no inherent right to priority, but that every partner has a right to insist that the firm debts shall be first paid out of firm property, and

"that the equities of the creditors can only be worked out through the equities of the partners," and this doctrine is supported by nearly all the cases. Gibson, C. J., in Dowes v. Stauffer, 1 Penn. R. (P. & R.) 198; Coover's Appeal, 29 Penn. St. 9; Shackelford v. Shackelford, 32 Gratt. (Va.) 481; Case v. Bauregard, 99 U. S. 119; S. C., 101 id. 688; Fitzpatrick v. Flannagan, 106 id. 648; McNutt v. Strayhour, 39 Penn. St. 269; Mills v. Conkling, 26 Iowa, 422; Poole v. Scully, 66 id. 502; Rice v. Barnard, 20 Vt. 479; Freeman v. Stewart, 41 Miss. 139; Sigler v. Knox Co. Bank, 8 Ohio St. 511; Day v. Wetherby, 29 Wis. 363; Fain v. Jones, 3 Head, 308; City of Maquoketa v. Willey, 35 Iowa, 323; George v. Wamsley, 20 N. W. Rep. 1.

On the other hand there are jurists equally eminent, and a few authorities entitled to as much respect, which declare that the equity of the creditors is superior to and independent of the equity of the partners, and cannot be destroyed by any act of the partners which works a destruction of their equities. 3 Kent Com. 64; Menagh v. Whitwell, 52 N. Y. 146, 164; Phelps v. McKneely, 66 Mo. 554; Tenny v. Johnson, 43 N. H. 144.

All the authorities agree that a conveyance by one of two partners to his copartner, who continues the business, if made in good faith, and not in fact at the time it is made a fraud upon partnership creditors, absolutely destroys their right to priority of payment. The cases will be referred to hereafter. This doctrine is supported by different arguments. Those who consider the equities of the creditors as merely derivative assert that by the transfer the partner who sells has lost his lien on the firm property for the payment of firm debts, and that therefore the lien of the creditors which exists only through the lien of the partners is gone. Those who accord to the firm creditors an original, inherent equity declare that the firm by the joint act of all its members (the selling and the purchasing partners), has sold the property, and that consequently the creditor's lien is gone, because it is universally conceded that a fair sale of partnership property by the joint act of all the partners passes an absolute, unincumbered title to the purchaser.

The doctrine that the equities of the creditors are derivative and dependent commends itself as being the more reasonable, and it is difficult to see how those cases which hold that a conveyance by one of two partners to his copartners works a destruction of the creditor's priority can be sustained upon any other theory; for it is not true that the sale by one partner to the other of his interest in the firm is a sale of the joint property of the partners by their joint act. It is not a sale by joint act because both do not sell. The interest of one does not pass from him. And moreover it is not a sale of the firm property, but merely of the selling partner's interest in the firm property; and that interest it is conceded by all the authorities is the share of the partner after all firm debts are paid. Eliminate the doctrine of derivative equities from the case, and what is then to justify the rule that a sale by one partner to the other operates to defeat the firm creditors' superior equity? It is said that such a transfer vests the whole legal title to the property in the purchasing partner, and that therefore he may dispose of it to pay his individual debts. But how does such transfer vest the whole legal title in the purchasing partner? He holds his own interest by his original title. What does he buy from his associate? Not one-half of the firm property but his interest in that one-half. That interest is what is left after discharging all obligations of the firm. If firm debts are not to be first paid, then the purchaser gets more than he buys. He pays for an interest in property incumbered by the equitable lien of creditors, and he receives an unincumbered, abso

lute legal title to one-half of the firm property. There is no escape from this conclusion, if firm creditors have an independent equity, and yet the mere purchase by one of his copartner's interest destroys their lien. If the equity is independent the partners cannot destroy it. It would exist against the property in the hands of any one who merely purchased the partner's interest in it and not the property itself. It would therefore exist against the property in the hands of the copartner who makes such purchase. And yet the courts decide, and the current of authority is uniform, that the lien does not continue against the property in the hands of the purchasing partner a moment after the transfer is consummated. A doctrine which is at war with a rule so universally recognized cannot be sound.

What is the nature of this equity of the partner, and how is it extinguished? Every partner's interest in the firm assets is his share after the payment of partnership debts. Now it is obvious that if the individual debts of the different members of the firm could be paid out of the firm property equally with firm debts, the interest of a solvent member of a solvent firm might be totally destroyed by the seizure of the firm property by the insolvent partner's individual creditors. This would be an appropriation of the individual property of the solvent partner (for his share of what is left after paying firm creditors is his individual property) to satisfy the debts of the insolvent partner. It would be taking A.'s property to pay B.'s debts. Therefore to prevent this injustice, every partner has a lien on the firm property for the extinguishment of firm claims, and for the payment to himself of his share of the balance. Coll. Part., § 109. But this is too elementary a doctrine to require the citation of authorities.

This is called the partner's equity, and it is only through this equity that firm creditors secure their priority. Now how can this equity of the partners be destroyed? Clearly by their own acts, there being no fraud in the transaction. What works an extinguishment? The voluntary relinquishment by all the partners of all interest in the firm property as firm property, conjoined with a cessation of their interest in the payment of firm creditors with the firm assets. The words italicized are inserted to qualify and restrict the otherwise too comprehensive import of the language used; because when one of two partners conveys his interest to the other, it has been repeatedly held that the equity of both partners and of the firm creditors is lost, and yet the other partner continues to own the firm property. His interest in it is not relinquished; but his interest in it as firm property is extinguished, because it has ceased to be firm property by the joint act of himself and the retiring partner. In addition it must appear that the partners have lost all interest in the extinguishment of firm obligations with firm assets. This is the case where one partner has sold out to the other. The purchasing partner is still liable for the firm debts, and if he is solvent it is a matter of no interest to the selling partner whether firm debts are paid out of the firm assets or individual assets. Allowing individual creditors to share equally with firm creditors can never prejudice the latter, and injure the retiring partner when the other partner is solvent. It would seem that the insolvency of the purchasing partner ought to operate as a preservation of the retiring partner's equity, as he is in such case interested in the continuance of the firm creditors' priority, because otherwise the firm property may be so burdened by the individual debts of the purchasing partner in excess of his individual assets that firm creditors will not be paid in full, and the responsibility for the deficiency fall upon the retiring partner. But it has been held that where such transfer has

been made in good faith, and without knowledge of the purchaser's insolvency on the part of either partner, his insolvency at the time of the transaction will not keep alive the firm creditor's superior lien. This case will be more particularly referred to hereafter. The decision however is probably right on principle. The question of the relinquishment of the partner's equity is a question of intention. Where the retiring partner has no reason to believe that he has an interest in retiring that equity or lien, and no fraud is shown, and he does nothing to indicate an intention to retain his equity or lien, it may well be taken to be a presumption of law, which is conclusive that he intended to release such lien or equity, and the result is an extinguishment of it. Let us now consider the authorities in the light of these principles, As has been already stated there is perfect unanimity among the adjudications on the point that the sale by one or more partners without fraud to a copartner of all interest in the firm property operates eo instanti to relieve the firm assets from the firm creditors' derivative lien. The firm property at once becomes the individual property of the partner who purchases it, and may be used by him to pay his individual debts in preference to the firm debts, and an individual creditor who levies upon it secures a lien on it superior to the claims of firm creditors. Dimon v. Hazzard, 32 N. Y. 65; Menagh v. Whitwell, 52 id. 146; Case v. Bauregard, 99 U. S. 119; Bullitt v. Chartered Fund, etc., 26 Penn. St. 108; Howe v. Lawrence, 9 Cush. 555; Robb v. Mudge, 14 Gray, 534; Allen v. Centre Valley Co., 21 Conn. 130, 137; Coover's Appeal,29 Penn. St. 9; Baker's Appeal, 21 id. 76; Ex parte Ruffin, 6 Ves. 119; Smith v. Howard, 20 How. (U. S.) 121; Sage v. Chollar, 21 Barb. 596; Ex parte Fell, 10 Ves. 347; Stanton v. Westover, (N. Y. Ct. of App.) 2 Cent. Rep. 139, decided Jan. 19, 1886, and to appear in 101 N. Y.; S. C., 101 N. Y. 265; Goembel v. Arnett, 100 Ill. 34; Vesper v. Kramer, 31 N. J. Eq. 420; Shackelford v. Shackelford, 32 Gratt. 481; White v. Parish, 20 Tex. 688; Rogers v. Nichols, id. 719; Hapgood v. Cornwell, 48 Ill. 64; West v. Chasten, 12 Fla. 315; 11 id. 192; Jones v. Lusk, 2 Met. (Ky.) 356; Trentall v. Swartzell, 85 Ind. 443; Mazer v. Clark, 40 Ala. 259; Maquoketa v. Willey, 35 Iowa, 323; Griffith v. Buck, 13 Md. 102; Warren v. Farmer, 100 Ind. 593; Jones v. Fletcher, 42 Ark. 451; Contra, In re Walker, 6 6 Up. Cau. App, 169; Phelps v. McNeeley, 66 Mo. 554; Tenney v. Johnson, 43 N. H. 144.

In Bullitt v Chartered Fund, etc., it appeared that Treadwell, a member of a firm consisting of two partners, sold out to Boswell, the other partner. Subsequently Boswell made an assignment of all his property for the benefit of his individual creditors; and it was claimed that as to the assets of the firm which remained in specie, the assignment was void. But the court held that by the sale to Boswell the firm assets became individual property, which could be assigned by him for the payment of his individual debts.

The other authorities cited are to the same effect. Some of the cases hold that in case of bankruptcy or insolvency, or in case the assets are marshalled in equity, the individual creditors of the purchasing partner are not only entitled to share equally with partnership creditors in the firm property assigned by the retiring partner to the other; but that they are entitled to priority of payment.

In Robb v. Mudge, 14 Gray, 534, the court held that the firm property after such transfer could be applied only in payment of the individual debts of the purchasing partner; that the joint debts could not be paid equally with them.

In Ex parte Freeman, Buck. 471, the court decided the joint creditors could not prove their claims as against firm property which had been heretofore assigned by one of two partners to the other, until all

individual debts had been paid. The case does not decide that even after payment of the individual debts in full, the firm creditors could resort to the surplus, but no doubt on this point can be possibly entertained. The rule is as declared in Matter of Rieser, 19 Hun, 202: "If partnership assets shall not suffice to pay partnership debts, resort may be had to any surplus of personal assets after paying personal debts and vice versa. To same effect Ex parte Cooke, 2 P. Wm. 500. The facts were as follows: Henderson and Morley were partners; the firm was dissolved, Henderson buying the interest of Morley, and assuming the firm debts. The partners having subsequently become bankrupt, Sir John Leach ruled that firm creditors could not prove against the separate estate of Henderson, a portion of which was the identical firm property which had been assigued to him and to which they had given credit. The court said: "It is not alleged that the joint creditors in any manner adopted Henderson as their separate debtor, and the question simply is whether the covenant of Henderson with Morley to pay the joint debts without any concurrence on the part of the joint creditors before the bankruptcy does ipso facto in the case of bankruptcy convert these joint creditors into separate creditors of Henderson, either absolutely or at their option. It is admitted that if bankruptcy were out of the question the joint creditor could not sustain an action at law against Henderson alone upon the same marked effect of the covenant." (The writer desires here and now to enter his dissent from the proposition embodied in the last sentence.) "My first difficulty is to apprehend the distinction in this respect between bankruptcy and no bankruptcy. 1 cannot apprehend how the fact of bankruptcy makes a man my creditor who does not otherwise sustain that character. I have always considered it to be essential to proof that the bankrupt should be indebted to the party proving at and before the bankruptcy. The engagement of one partner with the other to pay the debts of the firm can, as to the creditors of the firm, be considered only as a proposal that he is willing to become their sole debtor. If they accede to this proposal before bankruptcy, then a contract to that effect is concluded, and under the bankruptcy they are his separate creditors. But their acceptance of him as their separate debtor after the bankruptcy comes too late, for he is then incapable of contract. For these reasons I am of opinion that the petitioners cannot be considered as separate creditors of Henderson." To the same effect is Ex parte Ruffin, 6 Ves. 119. The decision in this case is cited with emphatic approval in Menagh v. Whitwell, 52 N. Y. 171, where the court say: "Ex parte Ruffin was the case of a dissolution of a partnership between two, one retiring and assigning the partnership property to the other, who continued the trade, and became bankrupt. It was decided and could not well have been decided otherwise, that by the dissolution and transfer, the property became the individual property of the bankrupt, and liable to his individual debts in priority to the debts of the former partnership. That the assent of the creditors before bankruptcy is essential to the conversion of their claims into joint or separate claims. See Ex parte Williams. Buck. 13; Ex parte Fry, 1 Glyn & J. 96. But slight evidence of assent is sufficient. Ex parte Williams; Ex parte Clowes, 2 Bro. 495; Call Part., § 920, p. 1454. Now if it be conceded that the mere promise by the purchasing partner made to the selling partner to become individually liable for the firm debts does not per se render him individually liable for them, and subject him to an individual action by the firm creditors, then the ruling in the above cases, that in the absence of any assent by the firm creditors to the arrangement they are not entitled to payment out of

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