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 (p). So the continuing partner may bring actions in the name of the old firm to recover debts due to it (q).

Where A., being a member of a partnership consisting of several individuals, drew a bill of exchange in blank in the partnership 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 A.'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 bonâ fide indorsee for value, though no part of the value came to their hands (r).

A retiring partner, on the dissolution of a firm, may give authority by parol to a continuing partner to indorse bills in the partnership name after the dissolution of the partnership, or such authority may be inferred from the circumstances of the case. Thus where a retiring partner stated that he left the assets and securities of the firm in the hands of the continuing partner for the purpose of winding up the concern, and that he had no objection to his using the partnership name, it was held that a jury were justified in finding that the continuing partner had authority to indorse promissory notes so left in his hands in the partnership name (s).

Where one partner retires from a firm, it seems that there may be a substitution of the liability of the remaining members of the firm, provided there be an express agreement to accept such new liability, or provided there are facts from which a jury may draw an inference that there was such agreement, and there is no objection on the score of want of consideration, as such change may be beneficial to the creditor, and better than the

(p) Burton v. Issitt, 5 B. & Ald.

267.

(q) Whitehead v. Hughes, 2 C. & M. 318; 4 Tyr. 92; 2 Dowl. 258, S. C.; but the retiring partners would

be entitled to an indemnity against costs; Id.

(r) Usher v. Dauncey, 4 Camp. 97. (s) Smith v. Winter, 4 M. & W. 454.

original liability, as in the case of outlawry, survivorship, or bankruptcy. The acceptance of the security of one may be a good consideration for the discharge of the security of two. If one partner only be solvent, it may be a great advantage, as in case of bankruptcy, to have the separate security of the solvent partner. The sole security of a solvent partner is better than the joint security of the solvent partner and another in case of survivorship, because, if the solvent partner dies, you have no remedy against the personal representatives (t). But in case of the liability of one being taken for that of two, there must be an express promise and agreement, so as to give a clear right of action against the one (u). As if the creditor draw on the continuing partners for a part of the balance due to him and send in more goods, or strike a fresh balance with the new partners for a different rate of interest; so if a new partner come in, and the creditor accept an account in which the new partner is made liable for the balance, this discharges the old firm, as both firms cannot be liable at once for the same debt (x).

3.-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 (y). And the bankrupt act, 6 Geo. IV. c.

(x) Per Lord Abinger, C. B., Hart v. Alexander, 7 C. & P. 754. Where in the case of the death of one of two partners in a firm, there was an agreement between the surviving partner and a creditor of the firm, that in lieu of a portion of the partnership debt the surviving partner should be considered as having furnished a quantity of stock, and the creditor was afterwards debited with the amount of the dividends, though the stock was not purchased; it was held that the surviving partner assumed that portion

of the debt, and that the estate of the deceased partner was released from it, Winter v. Innes, 2 Jurist, 981. So if upon the formation of a partnership it is proposed that a separate debt of one partner shall become a joint debt from the firm, to which the creditor assents by drawing bills, which are afterwards dishonoured, and by transferring the accounts, the debt is not separate but joint; Ex parte Whitmore, re Warwick, 3 Mont. & A. 627.

(y) 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, and not paid into the bank as directed by the statute 1 & 2 Will. 4, c. 56, s. 22; Munk v. Clarke, 10 Bing. 102; M. & Scott, 463, S. C. But not it seems

16, s. 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 assignees, have been already considered (z). The official assignee must be joined with the creditors' assignee in all actions brought for debts due to the estate of the bankrupt (a)..

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 (b). 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 (c).

The assignees of a bankrupt cannot join a count on a cause of action accruing to them in their own private right, with a count on their claim as assignees (d).

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,

where the bankrupt procures the appointment of the party to the office of assignee, id.; and see the same case 2 Scott, 475; 2 Bing. N. C. 299, S. C.; and there appears to be no distinction in this respect between an official and an ordinary assignee, id.; and see Carruthers v. Payne, 2 M. & P. 420; 5 Bing. 270, S. C.; Edge v. Parker, 8 B. & C. 697; Worth v. Budd, 2 B. & Ad. 177. There does not appear to be any illegality in an agreement by the solicitor to the estate to indemnify a stranger to the estate on his consenting to become assignee, where all the creditors refuse to become so; Gilmour v. King,

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 (e); and it is plain he made no contract himself, for A. promised to provide funds, and to him only can the plaintiff look (ƒ).”

By the bankrupt act, 6 Geo. IV. c. 16, s. 75, it is enacted, that any bankrupt entitled to any lease or agreement for a lease (g), if the assignees accept the same, shall not be liable to pay any rent accruing after the date of the commission (h), 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 (i), 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 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

66.

(e) And see 2 Pothier, by Evans,

(f) Bothomley v. Usborne and another, Peake, Addl. C. 99.

(g) This enactment protects a tenant though he holds under a parol demise only, Slack v. Sharp, 3 Nev. & P. 390; Ex parte Sutton, 2 Rose, 86, contra. But the statute operates only as a personal discharge of the bank rupt, it does not determine the lease, and therefore the bankruptcy of an assignee of the lease is no defence to an action on the lease against the lessee; Manning v. Flight, 3 B. & Ad. 211; Wilson v. Greenwood, 1 Swan. 481, n.; nor is the bankruptcy of the lessee a discharge of his surety for the pay

ment of the rent; Tuck v. Fyson, 6 Bing. 321; 3 M. & P. 716; Inglis v. Macdougal, 1 Moo. 196.

(h) By 1 & 2 Will. 4, c. 56, s. 12, after the date of the fiat. There cannot however be any apportionment of the rent, and therefore where a fiat issues against a bankrupt in the middle of a current half-year, the rent being payable half-yearly, he cannot be sued in assumpsit for use and occupation for the portion of the half-year prior to the fiat; Slack v. Sharp, 3 Nev. & P. 390.

(i) Surety's liability, Tuck v. Fyson, 3 M. & P. 716; 6 Bing. 321; Inglis v. Macdougal, 1 Moo. 196.

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 (k).

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

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 (n).

Where a coachmaker, who was tenant from year to year of certain premises, and had several coaches on hire, became bankrupt, and his assignees entered upon the premises to keep the coaches in repair, in pursuance of the bankrupt's contracts; in August the bankrupt's effects were sold, and the key of the premises delivered to the bankrupt, but the assignees paid the rent up to the Michaelmas following; in an action by the landlord, for a quarter's rent due at Christmas following, it was held that the assignees were liable (o).

So 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 (p); and in other cases intermeddling with the farm of a

(k) Ex parte Clunes, 1 Madd. R. 77. If there be some reason to suspect that the lease is void, and that the landlord had no title to grant it, the court will not order the assignees to deliver up possession of the premises, but merely to deliver up the lease, Er parte Williams, 2 Deac. 330. But the assignees must make their election, though they object that the lease is tainted with usury, Ex parte Williams, re Hobling, 3 Mont. & Ayr. 212. And if after the assignees have elected to reject the lease, the petition be dismissed, still the election stands good.

(1) 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.

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

(n) See Woodf. by Harrison, 209; Eden's Bankruptcy, 2nd ed. 238. (0) Anwell v. Hobson, 2 C. & J.

610.

(p) Welsh v. Myers, 4 Camp. 368; Hancock v. Welsh, 1 Stark. N. P. C.