Upson v. Arnold

By the Court. Lumpkin, J. delivering the opinion. [1.] It is distinctly admitted by the able Counsel for the-plaintiff in error, that in case of general partnerships, if the retiring partner bona fide assigns all his interest in the stock and effects to the remaining partner, that the same becomes thereby separate property, and will be distributable accordingly, notwithstanding the subsequent insolvency of the remaining partner; and that the sale made by Gresham to-Arnold, comes within this principle; and such, undoubtedly, is the law. (Perkins’ Bdition of Collyer on Partnerships,. 789.) He denies, however, that the same rule applies to the transfer between Upson and Arnold, which was a case of limited partnership. The learned Counsel has cited no authority in support of such distinction. The Act of 1837 (Cobb’s Digest, 585) recognizes none such. And the only reason assigned by the distinguished Counsel for incorporating this exception [192] upon the well established doctrine of partnerships, that in c ase of general partnerships, the retiring partner may still be sued for the firm debts, contracted previous to the dissolution, which cannot he done in the case of limited partnerships. We will not say that this constitutes no ground why a different practice should not prevail in the two cases. No writer, however, upon this head of the law, has referred to any such distinction, not even when treating expressly and exclusively of the Law of Limited Partnerships. No such point has been adjudicated by any Court, English or American. And under such circumstances, we should not feel warranted in making such an innovation.