The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-10-28
POINTS BY A. s. HAR1MEuL.

l. A co-partnership is necessarily dissolved by
operation of law on the death or retirement OF a
member, or on the coming in of new member.
Story's Part'p, $685. S2l l. Pars Contr., 1877. II
john, 525. Howard, 2Oe. 2 Met, 575. Coll.
Part'p, IS los, ITO, 1lS, 100, l2l.. 30.
ii. The rights and duties of surviving members of
a firm are limited to the winding up of its affairs
And so on any change by which firm is dissolved
by-operation of law. Kent, So, &C. Story's Part'p,
$685., 100, S43. 8 Allen, 2S7 Pars. Contr., 1914.
POI, 2O2. f7sr 80 M,
Ill. The general rule that firm assets must prina.
rily go to pay firm debts requires the application of
each of the above rules in order to ascertain the
limits of such assets and debts. vide supra.
~. No real estate mortgage can be decreased in
value by the act CT the mortgagor or his partners
The value of mortgage by partner OF his share Of
partnership property is determined by the value of
the iuortgagor's share after payment Of firm debts
from the partnership property such debts being cal
cuated at the final dissolution of tile partnership
V. "When one creditor may resort to two funds
for payment, aud another to one only, the latter
may compel the former to resort to the fund TO
which he may exclusively resort" St Eq. Jur.,
ss55s, $50, 642, GAS.
VI When person joins a partnership as
member be does not without a special promise as
sumo the previous debts ofthe firm nor is he bound
by them StiIl less can bis creditors be bound. 8
Kent, SO. stOry's Part'p, ssl47, I5s Coll Partp,
239, 3S9, 520 q ~ e,l~a "a Eo--T5 Z
VII "srviving partners and the representatives
off deceased partner not partners" Kent 25
VIII = Whatever remains of partnership real es.
tate utter thedebts Of the company have been dis
charged is held in common, subject to dover,
courtesy and partitiou,"-an of course subject to
mortgage liens. Wash. Real Prop, $40 Met,
5S7 Met, $50. II Barb, 4S. story's Part'p, $685.
The surviving members with the administrators
OF the estate of the deceased memberTba no power
to burden the firm property with fresh debts TO The
injury of private creditors. 1t is Just at this point
that the rights of separate mortgage creditors inter.
vene Theirsecnrity which may have been satisfac.
tory while Kamehameha v. was leading partner,
was changed by his death, and could not be dimi
nished by these defendants f
1t matters nothing that the administrators had no
notice in fact of the mortgage As a valid mortgage
it was recorded, and so BECAME legal notice TO all
the world 81 tff# aIt GfEf 4
Morbid P. N. Makee on joining the new firm |
promise TO pay the debts Of the old, or assume its /
Such express promise alone would make
BIN liable, but he could not do so by virtue of his
of the firm, to the injury Of bis private
creditors. Tbefrrh debtsfor which he is liable are
those OF his own firm, dating from September g.
1872, or at most from March l, 1872, and ending
with. the dissolution OF that firm December H. fs72
Neither the heirs of Kamehameha V. (were they
lscertaiuetD nor the Administrations of his estate
could iIjuriously affect the mortgage security of
prf5ate efedftors Of surviving members; stl less
could the survivors do so.
The failure of a surviving partner TO enforce his
IGN Of settlement, Or the neglect Of The admins
traitors of deceased partner to observe their duty
% do this, cannot injure the plaintiffs. Brewer &
Co. 10 dealing With the survivors on fresh contracts
lad legal notice of the iucumbrance on the share of
?. N. MaKee IfpHnte creditors holding Securities
.ould thus be postponed through Series OF firms
md dissolutions OF firms, they could be postponed
brewer. But these mortgage creditors were not
orced 10 farecose in order to obtain the value Of
heir security, which was the residue after pay
nent OF the firm debts of the firm Of which P N
dakee was a member, and no others.
The reason for the rule, that firm property Is |
rs; devoted TO firm Debts is obvious. 1t is for the
Of those dealing with the firm, and also
OF the protection OF partners against each other
'ut for this rule, no one would be safe in doing
business orin dealing with eo-partuers
he reason of the rule disappears however wiihiis
ecessity, aud that is when the firm is dissolved.
Finally, Brewer & Co., having two funds to look I
for the payment Of the debts incurred By the or
FINAL firm. and by the surviving members and 3
theirs, while the plaintiffs can only look to their
ecurity, hcforIner may be required by the latter
} exhaust that fund to which they alone can look
DEFENDANTS PoINTs AND DRfEF.
We respectfully submit that no partner has an sx
usve right TO anypart Of the joint stock till balance
ade The interest Of such partner ia the partner
Zip property is his share in the surplus after tie
artnershp accounts are settled, and all just claims
itrsfed- 5 Kent, Com. side page, 81. a
Story. On Pattnershp. Sea- o. No obe partner e
any right share in the partnership property.
rcept what rsnaus thereof after the fall discharge
ID payment Of all debts and liabilities ofthe partner
lip; and therefore each partner has right 70 have
e sane applied 20 the due discharge and payment :
al such debts and liabilities before any one Of The
lrtners. his personal representatives. or bis IN
yidgn1 creditor claim any right title there
MStrisOaa w. lBiSdsstt, New. Iiamp. sss. In this