5 Mo. 463 | Mo. | 1838
No person can doubt of the right, in the abstract, of any debtor to prefer any one creditor to another by paying his claim cither in money or property; the only restriction imposed by our laws on this right, is that imposed by the act for the relief of insolvent debtors. The petitioning debtor, in order to obtain the benefit of the act, must, among other things prescribed by the act to be done, swear that he has not paid, &,c. or m any way compounded with any of his creditors with a view, fraudulently, to obtain the benefit of the ac*. The same act, in the 30th section, provides a sum-nary mode of proceeding against any petitioning debtor who “hath assigned, conveyed or ddlvered any of his debts, rights or
It was contender in the circuit court by Hughes, the interpleada:, that me p» rtner has the right to make a general assignment oi ad the goods and chattels, &c. the firm. To sn tain this point, the case of Deaver v. bavage and ota?- ,(£ .- >cc, p. 2::2.) ts cited; 3 Rent’s
The points made in that case, were: 1. That the deed was v°id Mr want of certainty in the description of the property conveyed. 2. Because it established a preference among the creditors of the grantor. It is said in 20th Kent’s Com. vol. 3d, of the 1st edition, that “with -respect to the power of each partner over the partnership property, it is settled, that each one, in ordinary cases, and in the absence ol fraud on the part of the purchaser, has the complete right to dispose of the whole partnership interests, and is considered to be the authorized agent of the firm. He can sell the effects, or compound, or discharge the partnership debts. This power results from the nature of the- business, and is indispensable to the. safety of the public, and the successful operations of the partnership.” In the cause now before this court, Dobbyns does not assume to sell the effects, or to compound, or discharge the partnership áebts; but he strips not only himself but his partner of all power of doing either, by transferring that office to another person, Hughes. Gow on Partnership, p. 95, (cited,) also shows that one partner may release a debt due the firm, which, to the present case, is quite immaterial.
But it is contended that the deed was efficient to convey to Hughes all the interest of Dobbyns, and to prove this we are referred to Gow on Partnership, p. 94, where we learn that one partner, unauthorized by the firm, who executes a bond in his own name and that of his copart-ner as their joint and several bond, will be held bound by this bond, although inoperative against his partner, so as to bind him to pay money; for he cannot a,vail himself of the objection arising from the non-execution'of the bond by his copartner. So if a partner on behalf of •himself and his copartner, refer all differences between the partners and a third person to arbitrators, and promise to perform their award, which directs that the suits against sue’’ partner shall cease, and he shall pay a certain si.m, such ,: rtner is bablejto an action for a nonperformance of the award, although the other j artner is not made a partner to the submission. The effect of Dobbyns’s deed here is to dissolve the partnership be-