say, 'I shall carry on the trade by the application of the funds of the partnership, and at the hazard of the funds of the partnership, and I shall have the whole of the profits, and you shall have no share of them.' There may undoubtedly be occasion for making claims in the nature of just allowances; but I cannot bring myself to think, that the interest which, at law, survives in a continuing partnership, survives in such a sense as to cut down the rule of equity, and that the continuing partners shall have to account for nothing but the value of what the share was at the time of the death or bankruptcy of the other partner. Even if you were to lay down the rule in that way, still you would have to ask yourself, How is that value to be ascertained? It cannot be done by the surviving partner saying, 'I shall take it at such a value.' There must be some way of valuing it so as to give the party retiring the complete value, and there must be some way in which this court will direct that valuation to be made.' In the case of Brown v. De Tastet, his lordship held-That, though each case of a surviving partner retaining the property of a deceased partner and employing it in the trade, being accountable for the profits derived from it, must be decided upon its own special circumstances, yet, generally, that it was not to be held that the profits were to be divided in the same way, as if the partner had not died, or had not become bankrupt (though that might be decreed in some cases), but that the general principle ought to be this: that, inasmuch as it is quite competent to the parties to settle their accounts, and to mark out the 2 Russ. 345. relation between themselves as Crs and Dr, so where there is a non-settlement of the account, those who choose to employ the property of another for the purposes of their trade, exposing it to all the risks of insolvency or bankruptcy, must be answerable for the profits; and he decided that De Tastet (who had done so) should account for the profit, but that all proper allowance should be made to him for the management of the business. And this was affirmed in the House of Lords. Where it is doubtful, whether the subsequent profits have been made by the capital in which the retiring partner is interested, the court will direct an inquiry to that effect.* We cannot conclude this chapter without remarking upon these two celebrated cases, that, in the decision of them, the important difference between the capital of a partner and a loan by him, was entirely overlooked, nor does the accountant's practice of allowing interest upon all advances, seem even to have been once adverted to. The above case shows the importance to mercantile men of never resting, after the dissolution of a partnership, till all the accounts of it have been finally wound up and settled. Crawshay v. Collins. CHAPTER VI. PLAN FOR THE AMENDMENT OF THE LAW OF PARTNERSHIP. THE great difficulties under which partners labour in England, have called the attention of the legislature to the subject, and a mass of very valuable information has been collected in the Report of Mr. H. Bellenden Ker to the House of Commons. As some legislative enactment must be shortly made to remedy the evils complained of, I have ventured in the present chapter to submit a plan for the consideration of the public. The recommendation contained in Mr. Ker's report, goes only to the amendment of certain portions of the law of partnership, and it may therefore seem adventurous to set forth a plan which proposes to cope with all the difficulties at once. Nor do I presume to do this under an impression that reforms in the law can be accomplished by wholesale, nor in the expectation that the proposed plan is so unobjectionable, as to be capable of being altogether carried into execution. But when amendments are generally called for, it is at least some advantage to have as many sugges-. tions as possible laid before the public; for from such suggestions (crude as they often are) persons more skilled than the proposers are frequently enabled to select materials, which turn to advantage in the construction of the work. To clear the way, I have devoted a considerable portion of the preceding chapter to an elucidation of the singular discrepancies which exist between the principles of the English law of partnership, and the principles universally acknowledged and acted on among merchants and accountants. The conclusion to which I have come from that examination, and upon which I have constructed the plan proposed in the sequel of this chapter, is, that almost all that is required is a recognition by the courts of law of a few of the fundamental principles of mercantile accounts; and from the few references that have been made to the decisions of Lord Eldon (among so many that might have been inserted), it is evident that the views of that great judge were chiefly directed to the same object; and that, notwithstanding the discouraging obstacles with which he was surrounded, he was striving, gradually, on every case that came before him, to remodel the practice and principles of the courts, and bring them into a conformity with the customs and notions of the mercantile community. "The principal evils of the existing law," says Mr. Ker, "may be classed under three heads: "1. Those arising from the difficulties of suing aud being sued. 2. Those arising from the difficulties which occur to partners in suing inter se, more especially as regards a resort to a court of equity in partnership disputes, and agreements to refer to arbitration. "3. And, lastly, those arising from the rule, that any person taking an interest in the profits becomes liable as a partner." To these may be added some others that have been mentioned in the report or adverted to in the foregoing pages, and which I humbly conceive may be all remedied together by the same plan. The other evils may be briefly enumerated, as 4. Those connected with the real property of a partnership; viz., the class of representatives to which it passes, the real or personal, the incident of dower which attaches, and the joint-tenancy which frequently occurs.* 5. The singular law in bankruptcy,† that the joint estate shall be distributed among the joint creditors alone, and the separate among the separate creditors alone. 6. That an obstinate partner, or even his executors, can compel a sale of all the effects of the firm, to the ruin of the other partners.‡ 7. That if, upon the death or bankruptcy of one partner, the others continue trading without winding up the accounts, the representatives or assignees of the discontinuing partners are entitled to share the profits.§ 8. That there is no competent tribunal before which partnership accounts can be taken. 9. That executors and trustees carrying on a testator's business, are liable not only to the extent of the testator's estate, but to the extent of their own also. 10. That a sole surviving partner can set off a partnership debt against a private debt.|| 11. To which may be added, that an action of tort cannot be maintained by a public company, notwithstanding they *Discussed ch. v. p. 69. See p. 171. + See p. 125. ↑ See p. 79. |