every question which he is disinclined to answer, although there may be nothing in the circumstances of the case which in the least suggests that such answers would be fraught with danger. The latter extreme is quite as dangerous to public policy as the former. I shall not

presume to suggest any general rule governing this subject, and doubt, indeed, whether any definite and precise rule can be prescribed." The witness in this case was compelled to answer. HENRY WADE ROGERS.

RECENT AMERICAN DECISIONS.

Supreme Court of Iowa.

LIEB v. PIERPONT ET AL.

One partner has no authority to execute a general assignment of all the property of a firm for the benefit of all its creditors, without the assent, expressed or implied, of his co-partner, unless such co-partner be absent so that he cannot be consulted, or is incapable from some cause of expressing either assent or dissent; and such an assignment being executed without authority is absolutely void.

The fact that under such an assignment a fair and equitable proportion of the assets will be given to an attaching creditor, and that the partner not joining in the deed does not complain affords no ground for denying such creditor the rights of priority which he has acquired under his attachment.

THIS action at law was brought by plaintiff against Pierpont & Tuttle, and an attachment was issued thereon on the ground of the non-residence of defendants, which was levied upon certain land. Service was had by publication and judgment rendered for plaintiff. After judgment Chandler intervened by petition, showing that defendants had no interest in the land attached, which had been, before the attachment, conveyed to him. Upon this petition of intervention a trial was had upon the issues involving the intervenor's interest in and title to the land. No questions except such as pertain to these issues are in the case. The cause upon the intervenor's petition was tried by the court without a jury, and a judgment rendered for the intervenor's discharging the attachment levied upon the land. Plaintiff appealed.

The opinion of the court was delivered by

BECK, J.-The evidence shows that defendants, Pierpont & Tuttle, were partners, doing business in Illinois, and that prior to the attachment of the land in question, Tuttle executed an assignment of all the property of the firm to the intervenor, Chandler, for

the benefit of its creditors, the proceeds of the property to be applied pro rata to all. The deed of assignment was executed in the name of the firm and also by Tuttle personally, but without Pierpont's knowledge or assent, and at the time he was in the town where the firm transacted business and where the deed was executed, and where both of the parties lived. It is also shown that Pierpont, as soon as he was informed of the assignment, objected thereto in a written notice to Tuttle, claiming that the partnership had been dissolved more than a month prior to the execution of assignment. Pierpont also gave Chandler, before he had given bond as assignee, a written notice objecting and protesting against his acting under the deed. The land in controversy was the property of the firm, the legal title being held for convenience by Tuttle.

We are required to determine whether the deed of assignment executed under these circumstances is valid. The controlling question in the case is this: Has a partner power to execute a general assignment of all the property of the firm for the benefit of all its creditors without the assent, expressed or implied, of his co-partner, when he may be consulted upon the subject, and is capable of expressing assent or dissent? It would appear, upon principle, that such power is not possessed by a partner. Under its exercise the business of the firm may be, and under almost all circumstances would be, destroyed, and the partnership itself practically dissolved as to future business. It is true that, theoretically, the assignment is for the purpose of effecting the payment of firm debts, and that the law allows one partner to use the property of the firm to discharge its indebtedness. But this rule of law is applicable to transactions occurring in the ordinary business of the firm, and does not authorize one partner, upon the exercise of his individual discretion, to terminate the business of the co-partnership. In a matter of such great importance to each partner both ought to be consulted and be permitted to determine whether the condition of their affairs requires them to transfer all their property and abandon their business. We think the American cases are almost unanimous in holding that one partner has not the authority to execute an assignment of the property of the firm unless his co-partner be absent so that he cannot be consulted, or is incapable, from some cause, of expressing either assent or dissent. We will not here present the cases upon this subject. They are collected and most ably discussed in Burrill on Assignments 43, 65; 1 Am. Lead. Cas. 442, 462;

Collyer on Part., sect. 395 and notes; and Story on Part., sect. 101 and notes.

A case decided by Chief Justice MARSHALL at nisi prius (Anderson v. Tompkins, 1 Brock. 456) is the leading case cited as being in conflict with the conclusions we announce. But it appears that

this decision, sustaining the assignment by one partner without the assent of the other is not wholly based upon the power of the partner to make the deed, but is partly supported upon the necessity of the case, the partner not joining in the deed being absent on a voyage to Europe. The chief justice, in the course of his opinion, uses this language in reference to the execution of the deed without the assent of the absent partner: "It is true [he] had a right to be consulted. Had he been present he ought to have been consulted. The act ought to have been, and probably would have been a joint act. But [he] was not present. He had left the country and could not be consulted. He had by leaving the country, confided everything which respected their joint business to Tompkins [the other partner], who was under the necessity of acting alone."

The learned annotators, Hare & Wallace, in 1 Am. Lead. Cas. 441, make the following statement as to decisions upon this point: "Thus far there is no American case which says that one partner, when the other members are present, may, without their consent, make a general assignment of the firm effects to a trustee for the benefit of creditors."

It is said that the assignment, though not authorized by the nonconcurring partner, is not void, and, at most, is but voidable; and as in this case, no steps were taken to set aside the assignment, it must stand. But this position is clearly unsound. The deed is absolutely void for the very obvious reason that it was made without authority. The deed can have no effect whatever if there was a want of authority to execute it by the single partner. All instruments executed in the absence of authority are void. Want of authority in such a case strikes at the very life of the instrument. It is, in fact, not the deed of the party it purports to bind. The position, we think demands no further attention.

It is also said that plaintiff, who is a creditor of the firm, has no ground of complaint, for he will receive his equitable portion of the assets of the company. But if the deed be void no equity arises which demands of him to surrender the priority he has secured

by his attachment for the benefit of other creditors. The fact that a fair and equitable distribution of the proceeds of the property will be made is no argument to establish the validity of the deed. We cannot hold a void instrument to be valid on the ground that equity will be done by such a decision.

It is said, too, that Pierpont, the partner not joining in the deed, is the party who alone can object to it, and that plaintiff has no ground to complain. It seems to us that plaintiff, in that an attempt is made to defeat the priority secured by his attachment by setting up the assignment, is entitled to resist it in order to secure his rights under the attachment. The fact that Pierpont instituted no proceedings to set aside the assignment ought not to work prejudice to plaintiff's rights.

It is our opinion that the judgment of the District Court ought to be reversed.

One partner may transfer or assign a chose in action, or a debt due to the firm, or any other partnership effects, so far as the same can be transferred or assigned in law Cullum v. Bloodgood, 15 Ala. 34; Everit v. Strong, 5 Hill 163; s. c. 7 Id. 585; Clarke v. Hogeman, 13 W. Va. 718; Harrison v. Sterry, 5 Cranch 289; Anderson v. Tompkins, 1 Brock. 456; Mills v. Barber, 4 Day 428; Hodges v. Harris, 6 Pick. 360; C. S. Bank v. Binney, 5 Mason 176; Clark v. Rives, 33 Mo. 579; Hudson v. McKenzie, 1 E. D. Smith 358.

One partner may, without the knowl edge or assent of his copartner, assign directly to a creditor a part or the whole of the partnership property to pay or secure a firm debt existing or about to be contracted: Mabbett v. White, 12 N. Y. 442; Fromme v. Jones, 13 Iowa 474; Mills v. Barber, 4 Day 428; Harrison v. Sterry, 5 Cranch 289; McGregor v. Ellis, 2 Disney 286; Lamb v. Durant, 12 Mass. 54; Anderson v. Tompkins, 1 Brock. 461; Hodges v. Harris, 6 Pick. 360; Tapley v. Butterfield, 1 Met. 515; Egberts v. Wood, 3 Paige 517; Boswell v. Green, 25 N.

Judgment reversed.

J. L. 390; Cullum v. Bloodgood, 15 Ala. 34 McCullough v. Sommerville, 8 Leigh 415; Ormsbee v. Davis, 5 R. I. 442; Russell v. Leland, 12 Allen 349. The law will not, however, favor an attempt by one partner to give a preference to particular creditors against the wish of his copartners: Matter of Lowenstein, 7 How. Pr. 100; and a general assignment of the property of the firm for the benefit of a portion of the firm creditors, made by one partner against the opposition of the other partner, of which the beneficiaries under such assignment, or their agent procuring it, have notice, is invalid: Bull v. Harris, 18 B. Mon. 195.

Where the business of the firm is not trade, buying and selling, but a business to which the continued ownership of the property sold is indispensable, one partner has no authority even to sell the firm property without the knowledge or assent of his copartner: Sloan v. Moore, 37 Pa. St. 217, where authority was denied one partner to sell a newspaper which he and his copartner were publishing. In general, however, one partner may sell the whole of the partnership pro