Second National Bank v. John W. Willing & Co.

Bryan, J., delivered the opinion of the Court. A petition for the benefit of the insolvent laws was filed in fhe Circuit Court for Wicomico County, in the names of John W. Willing and James R. Willing, as partners under the style of John W. Willing & Company. It was filed on the authority of John W. Willing alone, who claimed the right to use the firm name for the purpose, under the circumstances which will be stated. The Second Rational Bank of Baltimore, alleging that it was a creditor of the partnership, filed a petition to quash the proceedings.

We will state the question decided by the learned Court in the words in which it has been certified to us ; “ The sole question raised, considered and decided, was whether, where one of the partners has absconded from the State, the remaining partner can, in the name of the firm, apply for the benefit of the insolvent law of the State — or, in other words, whether such proceeding in such case is within the provision of the statute. In overruling the motion to quash, we decided that the proceeding is authorized by the statute.” By the Act of 1884, chapter 295, the provisions of the insolvent laws were for the first time extended to partnerships. Previously to that Act, joint proceedings by or against two or more persons could not be entertained. Each person was required to make application solely in his own behalf; and an adverse proceeding could not be directed against more than one individual.

The Act just mentioned authorizes proceedings by or against partnerships, and assimilates them as nearly as practicable to those commenced and conducted by or against one person alone. By the express terms of the Act, as a consequence ³¹⁶ of a petition by a partnership, all its joint stock and property, and all the separate estate of each of the partners (with the exception of the exempted property,) is vested in the trustee in insolvency. It may be assumed that the petition must be filed in the names of the partners, because a proceeding in the firm .name alone (without the individuals who compose it) is something unknown in the law. The object of the Act was to enable the persons who compose a partnership to settle in one proceeding the questions relating to all their indebtedness, both separate and joint; and thus to avoid the inconvenience and expense of several proceedings, as had been previously necessary.

There is nothing in the Act to indicate that the powers of partners were to be altered or enlarged. Its whole scope and purpose relate to the means by which they may be relieved of their indebtedness. Its object was to expedite this result by enabling then to accomplish by a single petition, that which formerly required a separate petition for each partner. What one partner acting alone could rightfully do before this Act, he could do after its passage, nothing more, nothing less.

Partners, when not restrained by stipulations with each other, have an equal and general power over all the joint stock and property for all purposes, within the scope of the partnership business. It is not necessary now to discuss the limitations which have sometimes been supposed to exist, respecting the power of one partner, without the co-operation of his fellows, to make a voluntary assignment of all the joint property for the payment of creditors. Our opinion on the question will be given, when it is necessary to decide it. Eor the purposes of this inquiry, it may be conceded that each partner has the. absolute and uncontrolled power of disposition over everything belonging to the firm.

It has, however, never been held that this power extends to the separate and individual property of the other members of the partnership. What has been ³¹⁷ contributed to the joint stock, lias been placed under the joint control, and one partner -has the implied authority of the others to deal with it in the joint name ; but property which has not been so contributed remains in the private and separate ownership of the partner, and