Where it appears that the surviving mem bers of a firm are conducting the business for the purpose of enlarging and continuing it, and not to close it up, a receiver may be appointed for that purpose, on application of the legal representatives of the deceased member ; Dawson v. Parsons, 20 N. Y. Supp. 65. After dissolution a court of equity will appoint a receiver almost as a matter of course ; Lind. Part. *1008 ; 1 Ch. Div. 600; Richards v. Baurman, 65 N. C. 162. But see 18 Ves. 281; [1892] Ch. 633, where it was held that the mere fact of dissolution of a partnership does not give one partner an ab solute right, as against his co-partners, to have a receiver appointed of the partnership business; and to the same effect are, Appeal of Slemmer, 58 Pa. 168, 98 Am. Dec. 255; Marshall v. Matson, 171 Ind. 238, 86 N. E. 339; Cox v. Peters, 13 N. J. Eq. 39 ; Law rence Lumber Co. v. Lyon, 93 Miss. 859, 47 South. 849.
The mere fact of the death or bankruptcy of a partner is not ground for appointing a receiver, there must be some neglect or breach of duty shown; 2 Bro. C. C. 272; Ren ton v. Chaplain; 9 N. J. Eq. 62 ; Jones v. Weir, 217 Pa. 321, 66 Atl. 550, 10 Ann. Cas. 692; Hamill v. Hamill, 27 Md. 679 ; it is oth erwise if there be misconduct of an insolvent partner ; Phillips v. Trezevant, 67 N. C. 370; or misconduct of the partners in possession which imperils the assets; Davis v. Grove, 2 Rob. (N. Y.) 134; Bufkin v. Boyce, 104 Ind. 53, 3 N. B. 615 ; or the exclusion of one part ner by another from any control of the af fairs of the firm; Katz v. Brewington, 71 Md. 79, 20 Atl. 139; 2 Jac. & W. 558; May nard v. Railey, 2 Nev. 313; Marten v. Van Schaick, 4 Paige, Ch. (N. Y.) 479.
The existence of a partnership must be established before a receiver is appointed; Risehe v. Risehe, 46 Tex. Civ. App. 23, 101 S. W. 849 ; McCarty v. Stanwix, 16 Misc. 132, 38 N. Y. Supp. 820; but where it is alleged by one party and denied by the other, and the court directs an issue to decide that ques tion, until that is decided a receiver will be denied; 19 Ves. 144; 2 Maen. & G. 144; Ho bart. v. Ballard, 31 Ia. 521; Guyton v. Flack, 7 Md. 398.
Set-off. It may be stated as a general rule in law and equity that there can be no set-off of joint debts against separate debts unless under a special agreement; Story, Part. § 396. Thus, a debt due by one of the members a. firm cannot be set off against a debt due the firm; 2 C. B. 821; Colwell v. Bank, 16 R. I. 288, 15 Atl. 80, 17 Atl. 913; Edwards v. Parker, 88 Ala. 356, 6 South. 684; unless the partners assent; Montz v. Morris, 89 Pa. 392. Nor can a debt owing to a partner be set off against a debt due by the firm; International Bank v. Jones, 119
Ill. 407, 9 N. E. 885 ; 6 C. & P. 60; Lind. Part., 2d Am. ed. *269 ; but see Eyrich v. Bank, 67 Miss. 60, 6 Souith. 615.
But a partner sued for a firm debt, may set off his individual claim against the plain tiff; Lewis v. Culbertson, 11 S. & R. (Pa.) 48, 14 Am. Dec. 607 ; and when a surviving partner sues for a debt due to the firm, his individual debt may be set off; White v. Ins. Co., 1 Nott & MeC. (S. C.) 556, 9 Am. Dec. 726; or if sued on an individual debt he may set off a firm debt due to him as survivor; Johnson v. Kaiser, 40 N. J. L. 286. But otherwise where the partnership's debt is reduced to judgment; Pars., Part., Beale's ed. § 262 ; Seligman v. Clothing Co., 69 Wis. 410, 34 N. W. 232.
Marshalling Assets. A firm is not a cor poration, and hence firm creditors are in theory separate creditors as well. • But in administering insolvent estates equity has established the "rule of convenience" that firm and separate creditors shall have pri ority upon, and be confined to, the firm and separate funds respectively ; Winslow v. Wallace, 116 Ind. 317, 17 N. E. 923, 1 L. R. A. 179; Spratt's Ex'x v. Bank, 84 Ky. 85; Rothell v. Grimes, 22 Neb. 526, 35 N. W. 392. A surplus of a separate fund is among firm • creditors pro rata; and a sur p of a firm fund is divided among the separate creditors of the various partners in proportion to the shares of the partners therein ; Hardy v. Mitchell, 67 Ind. 485; Ap peal of Black, 44 Pa. 503; Union N. Bk. v.
Bank, 94 Ill. 271; Toombs v. Hill, 28 Ga. 371; Van Wagner v. Chapman's Adm'r, 29 Ala. 172. If there is no firm fund and no solvent partner, the firm creditors come in on an equal footing with separate creditors against the separate estates of partners part passe with individual creditors ; In re West, 39 Fed. 203; Shackelford's Adm'r v. Clark, 78 Mo. 491; Curtis v. Woodward, 58 Wis. 499, 17 N. W. 328, 46 Am. Rep. 647; contra, Weaver v. Weaver, 46 N. H. 188; Warren v. Farmer, 100 Ind. 593; Howe v. Lawrence, 9 Cush. (Mass.) 553, 57 Am. Dec. 68. A very slight firm fund over and above costs will suffice to exclude firm creditors from the separate estate ; five shillings has been said to be &cough ;, 7 Am. L. Reg. 499; and five pounds is enough, and so is a joint estate of less than two pounds; 2 Rose 54; one dollar and a quarter was considered too little; Pars. Part. 4th ed. § 384. A solvent partner, if living, is equivalent to a firm fund; Alsop v. Mather, 8 Conn. 584, 21 Am. Dec. 703; Lind. Part. *731.