9 Pa. 180 | Pa. | 1848
It is settled law, that a partner cannot pay his private debts by an application of the partnership property, without the assent of his companions. But he may do so with their consent; and a subsequent ratification of the act is equivalent to a precedent authority: Noble v. McClintock, 2 W. & S. 152; Purdy v. Powers, 6 Barr, 492. This is correctly conceded by the court below; but conceiving that the right of property of Sherriff’s assignee attached, by relation, at the time of the presentation of the petition to the bankrupt court, the jury were instructed that the assent of the solvent partners to the transfer of the note in question, given after that period, was not binding on them for want of mutuality. Of such an assent there was certainly some evidence; and the sole question in the cause, as it is presented here, is, whether the instruction in relation to it was correct ? If Sherriff’s interest in the property of the firm was not divested, by operation of law, until a time subsequent to the alleged consent, then, it must be admitted, he was competent to contract in relation to the note; and, consequently, whatever was agreed on by the partners, bound not only them but also the assignee in bankruptcy, when he was afterwards appointed.
The solution of the question depends upon the meaning of the third section of the late bankrupt law. It provided “ that all the property and rights of property, of every name and nature, and whether real, personal or mixed, of every bankrupt, except as is hereinafter provided, who shall, by a decree of the proper court, be declared to be a bankrupt within this act, shall, by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment or conveyance whatsoever; and the same shall be vested by force of the same decree, in such assignee, as, from time to time, shall be appointed by the proper court for this purpose. And the assignee, so appointed, shall be vested with all the rights, titles, powers, and authorities to sell, manage, and dispose of the same, and to sue for and defend the same, subject to the orders and directions of such court, as fully and to all intents and purposes,
Judgment reversed, and a venire de novo awarded.