be perfected by the assignment under the commission; and it would be difficult to show why a party, who takes the acceptance of a firm during the interval between the inception and the completion of the severance, and at a time when events might perfect their completion altogether, should be in a worse situation than if he had taken it after the severance was completed, and the partnership wholly determined.

If we look to the cases we shall find, that while there are none directly against the view which I take of this question; while at law there is no case either directly or indirectly against it, and while there is a current of authority plainly in its favour, yet there are one or two cases which proceed upon principles not easily reconcileable with others of high authority and recent date. The only case in Banc that I know of, which materially differs from Harvey v. Crickett, 5 M. & Sel. 337, is that of Thompson and Freere, 10 East, 418, where it was held, that an indorsement by two partners, after acts of bankruptcy committed by them, did not transfer the partnership interest in an acceptance, separate commissions having afterwards issued against them, and the solvent partner being abroad, and ignorant of the whole transaction. It must, however, be observed, that in this case the Court only granted a rule for a new trial, being of opinion that the facts were not well ascertained, and that some of the matters of law which the case involved required more deliberate consideration. It does not, however, appear ever to have been afterwards brought under the notice of the Court, although the reported case has been again and again referred to, and particularly was urged on the Court as an authority in Lacy and Woolcott, 2 Dow. & R. 460, without effect, as it did not bear directly on the point then before the Court,

1833.

Then the decisions in Dutton and Morrison, 17 Vesey, 197, in the matter of Wait, 1 Jac. & Wal., 605, are relied Ex parte ROBINSON. on, as evincing a disposition to question the principles of In the matter the latter cases at law, and as authorizing a different

of

HOUGHTON

and another.

distribution of the partnership estate from that to which those cases would lead. But it must be observed, that Sir William Grant, in Brickwood v. Miller, 3 Mer. 275, appears to have thought the principle was carried too far in Dutton and Morrison, as it should seem from his observations, particularly stated in page 281; and, at any rate, that the cases, as well here as at Nisi Prius and in Banc, are reconciled, if not with each other, certainly with the opinion which I have formed on the present question, by the distinction which may, if necessary, be taken, between acts assuming to transfer the property of the firm, and making a contract by acceptance for a previous debt of the firm. And it is perfectly consistent with the proposition, that the solvent partner cannot validly transfer the partnership property after the bankruptcy, to maintain that he may validly bind the firm by his acceptance given to a party ignorant of the bankruptcy. So that it is no impeachment of the proposition, that by indorsing a bill payable to the firm the solvent partner cannot pass that bill, or to hold that by the indorsement he cannot bind the firm. This distinction plainly reconciles Thompson and Freere with the judgment I have now given, and also reconciles it with Lacy and Woolcott, 2 D. & R. 460; for in Thompson and Freere the bankrupts were the indorsers, and the bill, though drawn by them, yet was an acceptance of a debtor to the firm; and the question was, whether this indorsement could so operate, because the bankrupt had no longer any power of binding the joint property, from the moment that the assignment relating back has vested the

property in the assignees, as at the date of the act of bankruptcy. It was a question, therefore, not as to the liability of the firm on the indorsement of the two partners, but as to the right of the holder of the bill, which was assumed to be passed by that indorsement — a right, not against the firm, but a right to the bill pretended to be passed by that indorsement. Now it is in nowise inconsistent with this position, or the reasoning on which it rests, to hold that the bankrupt, still more the solvent partner, might bind the firm to an innocent holder, either by passing its own acceptance, or indorsing another person's in favour of that holder.

Then let us consider the cases which bear most immediately on the point in question, and which have never been controverted. In Fox v. Hanbury, Cowp. 450. Lord Mansfield held, not only that if partners dissolve a partnership they who deal with either without notice of such dissolution have a right against both, of which indeed there could be no doubt, but further, that after dissolution by bankruptcy the party out of possession of the partnership effects has the same lien on any new goods brought in which he had on the old; and he held, and the Court decided, after full consideration, that the boná fide vendee of partnership property by the solvent partner, after an act of bankruptcy committed by another partner, can hold that property against the assignees under a joint commission issued against both. To maintain the doctrine on which my opinion in the present case is founded there is no occasion to go so far, because the question here only relates to the liability of the partnership from the contract of the solvent partner, and not to the title given by him in the partnership property. But that the decision of the present case is involved in that determination of Fox and Hanbury, as the lesser is inVOL. I.

D

1833,

Ex parte ROBINSON.

In the matter

of

HOUGHTON and another.

1833.

Ex parte ROBINSON.

In the matter

of HOUGHTON and another.

volved in the greater, and that the judgment in review cannot stand along with that, can admit of no doubt. But the later case of Lacy v. Woolcott, 2 D. & R. 460, appears to have been before the Court below, and was cited by one of the learned Judges there when the case first came on, but respecting which I find no mention either in the judgment or in the report, except a statement by the counsel endeavouring to distinguish that case from the case at bar, and which case seems to have been treated as if it were of no authority, though it was a case most deliberately and solemnly adjudged, and decided without the least hesitation by the Court of King's Bench. The late case of Lacy v. Woolcott, 2 D. & R. 460, was in truth a decision of the very question in this present case, the only difference being, that there the bankrupt and here the solvent partner gave an acceptance, and that there it was given for a debt of the bankrupt wholly unconnected with the partnership dealings, and here it was given for a partnership debt; differences which, as far as they go, most clearly render that a stronger case than this against the title of the holder. It is observable that the Court of King's Bench in Lacy v. Woolcott had the matter before it on a special case. The point had been raised at the time, and the matter put into this shape for the sake of a more solemn determination, and the Court had no doubt or hesitation on the subject, stopping the counsel who were to have argued on the other side. Thompson v. Freere, 10 East, 418, was cited as well as Ramsbottom v. Lewis, 1 Camp. 278; and the answer given by the Court so lately in that case proceeded exactly on the distinction which I have here stated; and it will be observed that their decision has never been questioned, but as I understand has been acted upon at Nisi Prius, and is certainly

2

referred to as a recognised authority in a later case in the Common Pleas, I mean Craven v. Edmondson, 6 Bing. 737. So that the distinction which I have taken reconciles the authority of the Nisi Prius case of Ramsbottom v. Lewis, 1 Camp. 279, and Abel v. Sutton, 3 Esp. 108; for in each of these the question was touching the effect of the solvent partner's act in transferring the partnership property, that is, the interest of the firm in bills of exchange, after the bankruptcy of one partner. Next to Lacy v. Woolcott, 2 D. & R. 460, Harvey v. Crickett, 5 Maule & S. 342, is the most important case in every respect on the present question; for although the point which arises here was not expressly decided there, yet the principle of that case plainly governs this, and indeed goes beyond the question on which the present judgment rests; and the doctrine stated by the learned Judges, who gave the subject much consideration, is altogether applicable to the question before us. The difference, and the only one, is this: here the solvent partner assumes to bind the firm by an acceptance in the partnership name given to a creditor of the firm; there the solvent partner indorsed in his own name, to a partnership creditor, a bill drawn by a debtor to the firm, and made payable to the solvent partner; but the bill was drawn after the bankruptcy of the other partner, and was for a debt due to the partnership, and it was made payable to the solvent partner purposely, and upon the supposition that upon the failure of the other every thing devolved to the one that remained. The case was therefore treated as one of a solvent partner disposing of partnership property, not assuming to bind the firm; but I see no distinction in principle between the two cases, where the solvent partner only assumes to bind the firm for value for a debt before existing, and gives a negotiable security for