will was duly proved and admitted to probate in the Superior Court of .... ....county, in this state, and letters testamentary were thereupon issued to said C. D. by said Superior Court.

III. That by said will the said A. B. bequeathed a legacy of Idollars to the defendant.

...

IV. That before the commencement of this action said executor paid over to the defendant, as such legatee, the amount of said legacy [or .... dollars, being part of said

legacy], out of the assets of said estate.

[DEMAND OF JUDGMENT.]

A creditor's bill to compel the application of real and personal property which an executrix in her own individual name conveyed to a trustee, to the payment of a judgment recovered against her as executrix is fatally defective, where there is no averment that any portion of such property formerly belonged to the testator's estate, or was derived directly or indirectly from it, or from the proceeds of it.143

143 Ferguson v. Yard, 164 Penn. St. 586.

he entered into partnership with defendant, under an agreement [of which a copy is hereto annexed, marked "Exhibit A."]

II. That on the ........ day of 18.., the defendant took exclusive possession of the partnership books and stock, and ever since has prevented the plaintiff from having access to the same, or from participating in any manner in the partnership business [or state any facts constituting a breach of the agreement].

Wherefore the plaintiff demands judgment:

1. That the said partnership be dissolved.

2. That a receiver of the property thereof be appointed with the usual powers.

3. That the defendant be restrained by injunction from interfering with the said property.

4. That the same be applied, first, to the payment of the partnership debts; and the remainder be divided between the parties, according to their respective rights.1

§ 2618. Accounting. When a partner is entitled to a dissolution, the taking of an account is necessary, and follows as a matter of course.2 Claim for partnership accounting, and a claim against a third party fraudulently holding part of partnership's property, may be united.3 Generally, the account. must be taken from the beginning to the end of the partnership.

1 The prayer is, of course, changed to suit the facts in each

But if there has been a partial settlement between the partners themselves, that fact may be proven in the action, and if proven, the settlement will be considered valid as between the partners themselves, unless it is assailed on the ground of mistake, error, or fraud. If there be no valid objection to the settlement, it is conclusive upon the partners, as far as it goes, and leaves open only the unsettled portions of the account. In an action for an accounting between a partner and the assignee of his copartner's interest in the firm assets, the partner whose individual interest has been sold is an indispensable party, although he is out of the state, and his whereabouts unknown.5

Where one part

§ 2619. Adverse proceedings by creditors. ner has filed his bill for a dissolution of partnership and the appointment of a receiver, until a dissolution has been judicially declared, and a receiver ordered to make a pro rata distribution of the assets among the creditors, they are not prevented from resorting to adverse proceedings, and thereby gaining a preference.R

8

Part

§ 2620. Allegation of partnership and indebtedness. nership must be proven like any other fact, and can not be established by mere surmise or innuendo. In a proceeding for the settlement of partnership accounts, a petition which does not show the existence of the partnership, and did not contain any statement of the account by the plaintiff, nor ask for a statement by the defendant, was held defective. An indebtedness, however, must be averred, and if denied, proved. But the complaint need not set out the defendant's acts and conduct in detail.10 It need not show that the defendant ever had any portion of the firm's property in his possession, if it avers that the plaintiff has paid out money for the firm and that the defendant has refused to settle with him therefor.11 But a mere desire of

4 Stretch v. Talmadge, 65 Cal. 510.

5 Wright v. Ward, 65 Cal. 525.

6 Adams v. Hackett, 7 Cal. 187; Adams v. Woods, 8 id. 152; 68 Am. Dec. 313; S. C., 9 Cal. 24; Naglee v. Lyman, 14 id. 450.

7 Hudson v. Simon, 6 Cal. 453.

8 Pope v. Salsman, 35 Mo. 362.

9 Hunt v. Gorden, 52 Mass. 194.

10 Holladay v. Elliott, 3 Oreg. 340; Carlin v. Donegan, 15 Kan.

11 Carlin v. Donegan, 15 Kan. 495.

one of the partners is not sufficient to authorize the court to decree a dissolution of the same, but cause must be shown.12

§ 2621. Books of partnership. The books of a liquidating partnership are in the quasi possession of the law, and must be placed in the hands of a receiver in all circumstances.13

§ 2622. Corporations. In New York, a complaint which asks for a receiver of the property of a corporation which is sued, without asking for its dissolution, and for an injunction against its trustees, without making them parties, or even stating who they are, is defective and demurrable.14 In California, the involuntary dissolution of corporations is provided for by the Code of Civil Procedure,15 and the voluntary dissolution by the same Code.16 A college corporation may, at common law, dissolve itself by a surrender of its franchise and the transfer of its corporate property by proper proceedings.17

§ 2623. Correcting errors. A court of equity may correct errors in the settlement of partnership affairs, where they arise from misrepresentations innocently made by one or more of the firm.18

§ 2624. Decree. If, in an action to wind up a partnership between plaintiff and defendant, in corporation stock, standing in the name of defendant, it appears that the plaintiff has agreed that the defendant may retain certain shares until a demand against the estate is settled, the court should not direct a conveyance of those shares without proof that the demand has 12 Bradley v. Harkness, 26 Cal. 69; but see California Civil Code, $ 2450.

13 Succession of Andrew, 16 La. Ann. 197.

14 Reid v. The Evergreens, 21 How. Pr. 319.

15 Part 2, tit. 10, chap. 5. In an action brought by a private citizen for the dissolution of a corporation, the relator, in order to maintain the action, must have some interest beyond that common to every citizen. People v. Bridge Co., 13 Col. 11; 16 Am. St. Rep. 182; State v. Stein, 13 Neb. 530.

16 §§ 1227-1233; see Civil Code, §§ 399, 400.

17 People v. Pres. & Trust. Coll. of Cal., 38 Cal. 166. Of the rules of pleading in actions brought to procure the dissolution of corporations, see The People ex rel. Marshall v. The Ravenswood, etc., Turnpike & Bridge Co., 20 Barb. 518.

18 Stephens v. Orman, 10 Fla. 9.

been settled.19 The decree should not order the private sale of firm property.20 Where the complaint alleges that dividends of profits were to be made at stated periods, the court may decree the payment of the sum due for such dividends before final distribution of the assets.21 The judgment should not be in the alternative, requiring the defendant to either transfer to the plaintiff his part thereof, to pay him a certain sum of money, but should direct a division in kind, or a sale and division of the proceeds.22 Where a bill is filed to settle the affairs of a partnership, the partnership transactions of each and all the partners should be taken into account, and the decree should include all these so as to leave nothing open for future litigation.23 In an action to reopen a settlement and sale made between partners, and for an accounting of the partnership affairs, on the ground of fraud practiced by the defendant, the court can not, without setting aside such sale and making an accounting, render judgment for the plaintiff for a specific amount on the ground that the defendant was guilty of a breach of warranty or of deceit.24 A prayer for general relief, in a bill by one party against another, is sufficient to authorize a sale of the partnership property.25

A general partnership

§ 2625. Dissolution of partnership. may be dissolved, as to himself only, by the express will of any partner, notwithstanding his agreement for its continuance, subject, however, to liability to his copartners for any damage caused to them thereby, unless the circumstances are such as entitle him to a judgment of dissolution.28 In California, a general partnership is dissolved as to all partners: 1. By lapse of the time prescribed by agreement for its duration; 2. By the expressed will of any partner, if there is no such agreement; 3. By the death of a partner; 4. By the transfer to a person, not a partner, of the interest of any partner in the partnership property; 5. By war, or the prohibition of commercial intercourse between the country in which one partner resides 19 Harper v. Lamping, 33 Cal. 641. 20 Jones v. Thompson, 12 Cal. 191. 21 O'Conner v. Stark, 2 Cal. 153.

22 Harper v. Lamping, 33 Cal. 641.

23 Griggs v. Clark, 23 Cal. 427; Raymond v. Came, 45 N. H. 201. 24 Black v. Merrill, 65 Cal. 90.

25 Lyman v. Lyman, 2 Paine, 11.

26 Cal. Civil Code, § 2451.