Partners are joint-tenants in the stock and all effects ; yet upon the decease of a partner, his personal representatives be come entitled to his share of the moveable stock and effects, and they thereupon be come in equity, and, as it has been said, at law, tenants in common with the surviv ing partners. I& as is generally the case in the purchase of lands for the purposes of a partnership, they are conveyed to the partners as tenants in common, and one of the partners should die intestate, the legal estate in his share will descend to his heir, who will be tenant in common with the other partners. If the lands were conveyed to them as joint tenants, there will be no survivorship in equity ; and it becomes then a question whether, upon the death of a joint trader, who, with his partners, has so purchased lands for the purpose of the trade, his share will descend for the benefit of his heir or his next of kin ; and the better opinion seems to be, although the point has never been decided, that although the legal estate in freehold property purchased by partners for the purposes of their trade will go in the ordinary course of descent, yet the equitable interest will be held to be part of the partnership stock, and distributable as personal estate. Purchased lands may be conveyed so as to be always held as real estate, and descend to the heirs of the several partners.
Any fraud on the part of one partner. either by misapplication of the partner ship fund or in any other way, is a mat ter of which a court of equity will take cognizance. No partner has a right to engage in any business or speculation which must necessarily deprive the part nership of his time, skill, and labour, because it is the duty of each to devote himself to the interest of the firm. It is the duty of each partner to keep precise accounts, and to have them always ready, for the inspection of his co-partner. Each partner is liable to the performance of all contracts of his co-partners, in the same manner as if entered into personally by himself, provided they relate to matters which are within the objects and purposes of the partnership. If the parties to the contract of partnership do not regulate it by express stipulation, the contract will be interpreted according to the established rules of law that are applicable to it. Though partners may have entered into a written agreement which specifies the terms on which the joint concern is to be carried on, yet if the partnership business be regularly conducted in any respect contrary to those terms, it is a legal con clusion that the partners have, so far as the change extends, changed their terms of agreement. For instance, if the agree ment be that no partner shall draw or accept a bill of exchange in his own name, without the concurrence of all the others, yet if they afterwards adopt a practice of permitting one of them to draw or accept bills without the concur rence of the others, it will be held that they have so far varied the terms of the original agreement.
One partner may maintain an action of covenant against his co-partner, whether the covenant be for the payment of money or the performance of any act for com mencing or establishing the partnership, or for the performance of any of the articles after the partnership has com menced; and if adequate compensation for the breach cannot be had at law, a court of equity will enforce a specific per formance of the covenant itself. Courts
of law do not allow actions of debt by ow partner against another for money due upon simple contract, as for money laid out by one partner for the purposes of the partnership. The partner who is ag grieved must therefore enforce his remedy by action of account, or by an application to a court of equity, by filing a bill for an account and a dissolution of the part nership. A partner cannot maintain an action of debt against his co-partner for work and labour performed, or money expended on account of the partnership ; if therefore he has a claim upon a co partner for a sum of money due on ac count of the partnership, but not consti tuting the balance of a separate account, or a general balance of all accounts, his only mode of recovering the amount is by an action of account, or by a bill in a court of equity praying for an account, and usually also for a dissolution. If it turn out that an undertaking is impracti cable, as if a machine, for the working of which the partnership was entered into, will not answer the purposes intended, and so the object of the parties is frus trated, or if either party commit fraud or gross acts of carelessness or waste in the administration of the partnership, the party aggrieved has a right to a dissolu tion, and the same will be decreed in equity. A partner is also entitled to an account of the partnership assets against his co-partner, but it was formerly held that he could not have it pending the partnership. If therefore he filed his bill for an account, it was also necessary to pray for a dissolution. It is now con sidered that a partner may have such an account on stating a proper case, without asking for a dissolution ; but considering the circumstances under which a partner ales a bill for an account of partnership dealings, it will seldom happen that it will be his interest not to pray for a dis solution of the partnership. Where one partner has committed such breaches of duty as would warrant a decree for a dis solution, a court of equity will interfere oimmarily by injunction: as where one partner has involved the partnership in debt, or has himself become insolvent, the court will restrain him from drawing, accepting, or indorsing bills in the name of the firm, from receiving the partner ship debts, and from continuing to carry on the business by entering into new con tracts. It will also restrain an action brought by one partner against his co partner ou a separate and private account upon payment by the latter of the money into court. So it will restrain the appli cation of the partnership property to a use not warranted by the articles; or an ex ecution against the partnership property for the separate debt of one partner. A court of equity will appoint a receiver where one partner excludes another from taking such part in the concern as he is entitled to take, and will do this even with a view to the continuation of the co-part nership, if it is for the benefit of the com plaining partner, although such a step is usually taken with a view to a dissolution and winding up of the partnership affairs. Whether the party applying for a receiver wish a continuance or dissolution of the partnership, be must make out such a case to induce the court to interfere as would authorise a decree for a dissolution.