Firm property. Each partner has a claim, not to any specific share or interest in the property in specie, as a tenant in common has, but to• the proportion of the residue which shall be found to be due to him upon the final settlements of their accounts, after the conversion of the assets and the liquida tion of all claims upon the partnership ; and therefore each partner has a right to have the same applied to the payment of all such claims, before auy one of the partners, or his personal representatives, or his individual creditors, can claim any right or title there to ; Story, Part. § 97 ; 4 Ves. 396 ; 17 id. 193.
Each partner has also a specific lien on the present and future property of the part nership, the stock broUght in, and everything coming in during the continuance and after the determination of the partnership, not only for the payment of debts due to third persons, but also for the amount of his own share of the partnership stock, and for all moneys advanced by him beyond that amount, as also for moneys withdrawn by his co-part ners beyond the amount of his share ; 3 Kent 65 ; Rice v. Barnard, 20 Vt. 479, 50 Am. Dec. 54 ; 25 Beay. 280 ; Standish v. Babcock, 52 N. J. Eq. 628, 29 Atl. 327. - This lien attaches to real estate held for part nership purposes, as well as to the personal estate ; Dyer v. Clark, 5 Mete. (Mass.) 562, 577, 39 Am. Dec. 697 ; and is co-extensive with the transactions on joint account ; Houston v. Stanton, 11 Ala. 412.
Upon a settlement of a partnership by an account, the assets are divided among the partners in proportion to their contributions ; and each partner is liable for a deficit in proportion to his share of the profits ; Moley v. Brine, 120 Mass. 324.
Fraud. A partner has an equity to re scind the partnership and be indemnified for his co-partner's fraud in inducing him to en ter the business ; Smith v. Everett, 126 Mass. 304 ; 3 De G. & J. 304 ; Rosenstein v. Burns, 41 Fed. 841; White v. Smith, 63 Ark. 513, 39 S. W. 555 ; 13 Ch: Div. 384. Where the part nership suffers from the fraud or wanton misconduct of any partner in transacting firm business, be will be .responsible to his co-part ners for it ; Story, Part. § 169. See supra.
Interest. As a general rule partners are not entitled to interest on their respective contri butions to capital unless by special agreement, or unless it has been the custom of the firm to have such interest charged in its accounts ; 6 Beay. 433 ; Appeal of Brown, 89 Pa. 139 ;
Whitcomb v. Converse, 119 Mass, 38, 20 Am. Rep. 311; Desha v. Smith, 20 Ala. 747 ; Top Paddock, 92 Ill. 92; Jackson v. John son, 11 Hun (N. Y.) 509 ; Kelley v. Turner, 81 Md. 269, 31 Atl. 700. But a partner is en titled to interest on advances made by him to the firm ; Baker v. Mayo, 129 Mass. 517 ; Matthews v. Adams, 84 Md. 143, 35 At]. 60 ; Morris v. Allen, 14 N. J. Eq. 44 ; Collender v. Phelan, 79 N. Y. 366 ; and no express agreement is necessary ; Morris v. Allen, 14 N. J. Eq. 44. In Rodgers v. Clement, 162 N. Y. 422, 56 N. E. 901, 76 Am. St. Rep. 342, it was held that • a partner was entitled to in terest on advances without an express agree ment, but it would not be allowed where the partnership agreement was that he should furnish the capital and his co-partner super vise the work. See, however, Lee v. Lash brooke, 8 Dana (Ky.) 214; Day v. Lockwood, 24 Conn. 185. But it is held that interest will not be allowed on advances and profits not drawn out ; Winchester v. Glazier, 152 Mass. 316, 25 N. E. 728, 9 L. R. A. 424. Where profits are left in the business, a part ner is not entitled to interest thereon ; L. R. 5 Ch. 519 ; Appeal of Brown, 89 Pa. 139 ; Sweeney v. Neely, 53 Mich. 421, 19 N. W. 127; a partner who has not paid in his con tribution to capital will be charged with in terest; Krapp v. Aderholt, 42 Kan. 247, 21 Pac. 1063 ; Ligare v. Peacock, 109 Ill. 94 ; a partner will not be charged with interest on overdrafts ; Prentice v. Elliott, 72 Ga. 154. A partner has been held entitled to interest on a sum contributed to capital in excess of the agreed share ; Reynolds v. Mardis' Heirs, 17 Ala. 32.
There is undoubtedly conflict in the cases on the subject of interest on advances, and one writer contends that the weight of au thority is against the allowance of interest ; Gilmore, Partn. 396 ; but there is much au thority in favor of allowing interest and the author cited admits that there is no ques tion, where there is a special contract or fair ground for implication from the facts and circumstances. It is not unlikely that the courts would be inclined to find such to be the circumstances of the case and to lean in favor of allowing interest.