following order: (a) those owing to separate creditors; (b) those owing to partnership creditors; (c) those owing to partners by way of contribution. This however introduces several changes into the law as it is established by the weight of authority. (1) A partner who has paid the partnership debts can at present prove for contribution against the insolvent partner's estate and share pari passu with his other separate creditors.128 Under this Act he would apparently be postponed until all other separate creditors had been paid. (2) At present a partner is not allowed to prove against the insolvent estate of his co-partner for a claim unconnected with the partnership and receive any dividend until all firm creditors have been paid, on the ground that otherwise he would be competing with his own creditors, i. e., the unpaid partnership creditors.129 But he is allowed to take as a separate creditor where it would not injure the partnership creditors.130 Under this Act a partner may apparently share with the other separate creditors of his insolvent co-partner in any case except when his claim is one for contribution. (3) At present, where there is no partnership estate and no living solvent partner, the partnership creditors are allowed in the majority of the states to share pari passu with the separate creditors in the separate estate.131 As no provision is made for such exceptional case by this Act, it would probably be construed as excluding such exception. The Bankruptcy Act of 1898 has been thus construed.132

Sec. 43 133 provides that the right to an account accrues at the

128 Olleman v. Reagan's Adm'r, 28 Ind. 109 (1867); Buseby v. Chenault, 13 B. Mon. 554 (1852); Payne v. Matthews, 6 Paige (N. Y.) 19 (1876); Amsinck v. Bean, 22 Wall. (U. S.) 395, 403 (1874); In re Dell, 5 Sawy. 344 (1878); Matter of Hirth, 26 Amer. Bank. Rep. 666 (1911). Contra, Kirby v. Carpenter, 7 Barb. (N. Y.) 373 (1849).

129 Ex parte Ellis, 2 Gl. & J. 312 (1827); Ex parte Maude, L. R. 2 Ch. App. 550 (1867); Estate of Bennett, 13 Phila. 331 (1880).

130 No possible surplus for firm creditors in insolvent debtor partner's estate. Ex parte Topping, 4 DeG. J. & S. 551 (1865). Insolvent creditor partner's estate sufficient to pay his separate debts, so that whatever additional came to his estate would enure solely for benefit of partnership creditors. In re Head, [1894] 1 Q. B. 638. 131 AMES, CASES ON PARTNERSHIP, 343, n. 2. 30 Cyc. 552.

132 Re Wilcox, 94 Fed. 84 (1899); Re Henderson, 142 Fed. 588 (1906), aff'd 149 Fed. 975 (1906); Re Janes, 133 Fed. 912 (1904), certiorari refused sub nom. MacNabb v. Bank of Le Roy, 198 U. S. 583 (1904). Contra, Re Green, 116 Fed. 118 (1902); Re Conrader, 121 Fed. 801 (1902); In re Gray, 208 Fed. 959 (1913).

133 Sec. 43. (Accrual of Actions.) The right to an account of his interest shall

date of dissolution in the absence of any agreement to the contrary. Under this section the ordinary orderly course of winding up by the liquidating partner might be disturbed at any time by an action brought by the retired partner or the representative of a deceased partner without showing any facts other than a dissolution and the absence as yet of an accounting. The liquidating partner should be treated as a fiduciary, and if he has neglected or refused to perform his duty or acted in any other way adversely to the rights of those to whom it is his duty to account, an action should lie against him as against a trustee under similar circumstances. He should not be subject to interference by the courts while in no way neglecting his duty.134 If a court grants an accounting it must in due course make a decree, holding the partner who as a result of the accounting proves to be a debtor to his copartner or co-partners liable in a certain amount, although some assets of the partnership cannot immediately be exactly appraised, and as to any of the assets the amount of the appraisements may not be realized. Moreover, if the action accrues at once, the Statute of Limitations begins to run, and if assets are received by a partner at a time subsequent to the dissolution by a period longer than the statutory period, there is no enforceable obligation to account for them. There is at present considerable conflict on this point, but Professor Burdick has said, "This holding is correct in principle, that the statute does not begin to run until the partnership affairs have been settled and a balance struck." 135

The surviving partner should be treated not as a debtor, but as a fiduciary, and this view seems to be embodied in the sections declaring him to be a fiduciary as to benefits received without

accrue to any partner, or his legal representative, as against the winding up partners or the surviving partners or the person or partnership continuing the business, at the date of dissolution, in the absence of any agreement to the contrary.

134 It has been held that the right of action does not as a matter of law accrue on dissolution. McPherson v. Swift, 22 S. D. 165, 116 N. W. 76 (1908); Riddle v. Whitehill, 135 U. S. 621 (1889); but only after a reasonable time has elapsed, Gilmore v. Ham, 142 N. Y. 1, 36 N. E. 826 (1894); Gray v. Green, 142 N. Y. 316, 37 N. E. 124 (1894); or an account is stated, Matthews v. Adams, 84 Md. 143, 35 Atl. 60 (1896); or an adverse claim has been made by the partner in possession, Thomas v. Hurst, 73 Fed. 372 (1896).

135 30 Cyc. 720. Cases showing different rules on this point are collected in 30 Cyc.

719, 721.

consent of co-partners,136 and denying his right to possess partnership property except for partnership purposes.137 Moreover, the representative of the deceased partner or a retired partner can elect to claim the profits attributable to the continued use of his share, instead of its value at the date of dissolution.138 These provisions seem inconsistent with the section under consideration. In a comment on the corresponding section in a previous draft,139 the learned draftsman said, "The English Act makes the debt due at the time of dissolution. The provision here drawn is based on the principle that when one person manages property for another nothing is due until an account is stated." Sec. 43 of the Act now recommended by the Conference is obviously drawn on a different principle, but the draftsman does not in his explanatory notes give any reason for the change or make any comment whatever on this section. It is submitted that the provision of the previous draft should be substituted for Sec. 43.

This article has been devoted primarily to a consideration of what are in the opinion of the writer important defects in the proposed Act. The Act contains, nevertheless, many commendable features, which cannot because of lack of space be enumerated.

136 Sec. 21. (Partner Accountable as a Fiduciary.) (1) Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.

137 Sec. 25 (2) (d). See n. 73.

138 Sec. 42. (Rights of Retiring or Estate of Deceased Partner when the Business is Continued.) When any partner retires or dies, and the business is continued under any of the conditions set forth in § 41 (1, 2, 3, 5, 6), or § 38 (2b), without any settlement of accounts as between him or his estate and the person or partnership continuing the business, unless otherwise agreed, he or his legal representative as against such persons or partnership may have the value of his interest at the date of dissolution ascertained, and shall receive as an ordinary creditor an amount equal to the value of his interest in the dissolved partnership with interest, or, at his option or at the option of his legal representative, in lieu of interest, the profits attributable to the use of his right in the property of the dissolved partnership; provided that the creditors of the dissolved partnership as against the separate creditors, or the representative of the retired or deceased partner, shall have priority on any claim arising under this section, as provided by § 41 (8) of this act.

139 Draft D. Sec. 50. (Accrual of Actions.) Subject to any agreement between the partners the amount due from the liquidating partner or the surviving partners or the person or partnership continuing the business to the other partners or the representative of a deceased partner in respect to their shares in the partnership is a debt due at the time an account is stated as to all matters covered by the account.

The greater part of the provisions whereby the law is changed or conflicts settled are mitigations of the logical consequences of applying the aggregate theory on which the draftsman has ostensibly proceeded, such as the qualifications of the partner's right in specific partnership property,140 which would necessarily be implied without express formulation if the entity theory were avowedly adopted. While the Act contains improvements in the law of many states, it is submitted that no state should adopt it without eliminating the defects which have been indicated. Judson A. Crane.

CAMBRIDGE, MASS.

140 See n. 73.

HARVARD LAW REVIEW

Published monthly, during the Academic Year, by Harvard Law Students

THE PRESENT APPROACH TO CONSTITUTIONAL DECISIONS ON THE BILL OF RIGHTS. - Constitutional decisions significantly demonstrate that "general propositions do not decide concrete cases." But the manner of approach to such general propositions, the rigidity or flexibility which is assumed for their content, do decide cases. In 1907 a unanimous Court of Appeals in New York declared unconstitutional a statute prohibiting night work for women, as a denial to women of "equal rights with men." Refusing to be bound by its earlier decisions the same court has now sustained the second attempt of the legislature to prohibit night work by women, sustained it as a protective measure of the state to safeguard the health of its women engaged in industry, and therefore as a measure in the interest of the "general welfare of the people of the state." People v. Charles Schweinler Press, 53 N. Y. L. J. 81. In neither opinion is there any dispute as to general principles; nay more, there is no conflict whatsoever between the legal principles applied by the two cases. But the application of the same legal principles to the same statute2 produces a complete reversal in result a result of incalculable importance when translated into terms of wealth and welfare. Evidently, then, we are in the presence of a change of temper in the court, involving a change in the content of familiar legal principles, a change in judgment screened by formal prin

1 People v. Williams, 189 N. Y. 131, 81 N. E. 778, 20 HARV. L. Rev. 653.

2 There is a slight difference in detail between the two statutes which the Court, with fine candor, dismissed as irrelevant to the constitutional issue.