Surviving partner. The surviving partner stands chargeable with the partnership debts, and takes the partnership property by survivorship, for all purposes of holding and administering the estate„ until the effects are reduced to money and the debts paid; 3 Kent 37; Egberts v. Woods, 3 Paige Ch. (N. Y.) 527, 24 Am. Dec. 236 ; In re F. Dobert & Son, 165 Fed. 749; Word v. Word, 90 Ala. 81, 7 South. 412; Hamlin v. Mansfield, 88 Me. 131, 33 Atl. 788.
The debts of the partnership must be col lected in his name ; Murray v. Mumford, 6 Cow. (N. Y.) 441; 3 Kent 37; Burnside v. Merrick, 4 Mete. (Mass.) 540. He. has full power to control and dispose of the firm assets for the purpose of winding up its af fairs and may secure a firm creditor by the execution of a mortgage, which is not invalid by reason of the fact that it also secures money borrowed by him after the death of his partner, if used for the partnership debts ; Burchinell v. Soon, 8 Colo. App. 463, 46 Pac. 932. He has power to make an as signment for the benefit- of firm creditors with preferences ; Emerson v. Senter, 118 U. S. 3, 6 Sup. Ct. 981, 30 L. Ed. 49.
Torts. The firm is not liable for the torts of a partner committed outside of the usual course of the business, unless they are as sented to or adopted by its members; Taylor v. Jones, 42 N. H. 25; Durant v. Rogers, 87 Ill. 508 ; Graham v. Meyer, 4 Blatchf. 129, Fed. Cas. No. 5,673; Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588; otherwise, in regard to torts committed in conducting the affairs of the partnership or those assented to by the firm ; 1 Q. B. 396; Haase v. Mor ton, 138 Ia. 205, 115 N. W. 921, 16 Ann. Cas. 350; as for the negligent driving of a coach by a member of a firm of coach proprietors; 4 B. & C. 223; or where one member of a firm of butchers left meat where it was eaten by a dog who died from the effect of It; Dudley v. Love, 60 Mo. App. 420; or for the negligence of a servant employed by the firm while transacting its business; Lin ton v. Hurley, 14 Gray (Mass.) 191; or for the conversion of property by a partner, to be appropriated to the use of the firm ; Dur ant v. Rogers, 87 Ill. 508; or for obtaining
goods by false pretences and fraudulently disposing of them; Banner v. Schlessinger, 109 Mich. 262, 67 N. W. 116. Demand of, and a refusal by, partner to deliver up property is evidence of a conversion by the firm; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607; Nisbet v. Patton, 4 Rawle (Pa.) 120, 26 Am. Dec. 122. A part nership may be liable for the publication of a libel; Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528; Haney Mfg. Co. v. Perkins, 78 Mich. 1, 43 N. W. 1073 ; Atlantic Glass Co. v. Paulk, 83 Ala.' 404, 3 South. 800. If the firm is liable for the tort of a partner, each partner is liable in solido; Pars. Partn. § 100; and all or one or more may be sued; Wisconsin Cent. R. Co. v. Ross, 142 Ill. 9, 31 N. E. 412, 34 Am. St. Rep. 49.
It has been held that the fraud of one partner does not charge the firm; Pierce v. Jackson, 6 Mass. 245 ; without participation by the firm ; Sherwood v. Marwick, 5 Greenl. (Me.) 295 (but see as to these cases Locke v. Stearns, 1 Mete. [Mass.] 564, 35 Am. Dec. 382) ; and that it is not liable for malicious prosecution instituted by one partner for the larceny of firm property, unless the oth ers participated in the prosecution ; Marks v. Hastings, 101 Ala. 165, 13 South. 297 ; or where a partner converted property to his own use Townsend v. Hagar, 72 Fed. 949, 19 C. C. A. 256; Stokes v. Burney, 3 Tex. Civ. App. 219, 22 S. W. 126 ; or where with out consultation he instigated malicious prosecution for an offence against the firm; Marks v. Hastings, 101 Ala. 165, 13 South. 297 ; Farrell v. Friedlander, 63 Hun 254, 18 N. Y. Supp. 215. A loss resulting from vio lation of the articles, gross negligence, fraud or wanton misconduct of a partner in the firm business, must be borne by him ; Devall v. Burbridge, 6 W. & S. (Pa.) 529; 1 Sim. 89; but not if it be the result, merely, of an honest mistake in judgment; Charlton v. Sloan, 76 Ia. 288, 41 N. W. 303; Morris v. Allen, 14 N. J. Eq. 44.