Partners are joint tenants in the stock and all effects; yet there is no survivorship in equity, or, as it has been said, at law, in such part of the stock as is moveable. Upon the decease of a partner, his per sonal representatives become entitled to his share of the moveable stock and effects, and they thereupon become in equity, and, as it has been said, at law, tenants in common with the surviving partners. If, as is generally the case in the purchase of lands for the purposes of a partner ship, 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 (see Darby r. Darby, 3 Drew, 499), 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. it is scarcely necessary to observe, that upon the purchase of lands, they may be expressly conveyed so as to be always held as real estate, and descend to the heirs of the several partners.
It sometimes happens that one person supplies goods for an adven ture, and another only his time, trouble, and credit ; yet if in the agreement between the parties there are words which imply a joint undertaking, those words are evidence of an intention to share jointly the goods and also the profits of them.
There is an implied obligation, in the absence of express stipulation, among partners to use the property for the benefit of all of them : and any fraud on the part of one partner, either by misapplication of the partnership fund or in any other way, is a matter of which a court of equity will take cognisance. No partner has a right to engage in any business or speculation which must necessarily deprive the partnership 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 e: press stipulation amongst themselves, the contract, with its duties and obligations, will be implied and enforced by the rules of law applicable to persons in such relative situations ; and where the contract does not mach all the duties and obligations, such omissions will be supplied by the same rules of law. Though partners may have entered into a written agree ment which specifies the terms on which the joint concern is to be carried on, yet, if there be such a course of dealing as leads to the conclusion that they have agreed to change the terms of the original written agreement, they will be considered to have done so. For instance, if the agreement 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 concurrence of the others it will be held that they have so far varied the terms of the original agreement. The transactions of partners are always to be looked to in order to determine between them, even against the written articles, what clauses in those articles will not bind them. It is impossible to state
all the varieties of stipulation which are introduced into partnership articles ; it will „be sufficient to repeat that within the limits before laid down, the parties may enter into such stipulations as they please.
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 commencing or establishing the partner ship, or for the performance of any of the articles after the partnership has commenced ; and if adequate compensation for the breach cannot be had at law, a court of equity will enforce a specific performance of the covenant itself. Courts of law do not allow actions of debt by ono partner against another for money duo upon simple contract, as for money laid out by one partner for the purposes of the partnership. The partner who is aggrieved 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 partnership. 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 his co-partner for a sum of money due on account of the partnership, but not constituting the balance of a separate account, or a geueml 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 frustrated, or if either party commit fraud, or gross acts of carelessness or waste iu the administration of the part nership, the party aggrieved has a right to a dissolution, 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 considered 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 files a bill for an account of partnership dealings, it will seldom happen that it will be his interest not to pray for a dissolution of the partnership. Where one partner has committed such breaches of duty as would warrant a decree for a dissolution, a court of equity will interfere summarily 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 partnership debts, and from continuing to carry on the business by entering into new contracts. It will also restrain an action brought by one partner against his co-partner on a separate and private account. upon payment by the latter of the money into court. So it will restrain the application of the partnership pro perty to a use not warranted by the articles; or an execution 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 partnership, if it is for the benefit of the complaining 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, he must make out such a case to induce the court to interfere, as would authorise a decree for a dissolution.