The statute had regard to the intention of the donor in tail and restrained the operation of the conveyance to the estate of the tenant in tail and his issue.

But if the policy of the statute does not require the maintenance of the free power of alienation, why should the act of the tenant in tail be permitted in any degree to countervail the intention of the donor, so far as it can have effect within the general limits allowed by law? The intention of the donor, in creating an estate tail, is in effect to constitute a tenant for life and a continued succession of tenants, with a remainder to take effect on the failure of the line of the tenant. Consistently with the policy of the statute, that intention might be carried out so far as to give the powers of a tenant for life, (as restricted in the manner we have shown by the statute) to the tenant in tail, with a fee simple estate to his issue, remainder to a person in being.

But the terms of the existing statute are incongruous and inconsistent. In the first place, an estate in fee simple is created for the purpose of vesting the whole estate in the tenant in tail, contrary to the intention of the donor, and then in a subsequent section it is provided, in effect, that notwithstanding the alienation of the tenant in tail, the intention of the donor shall take effect so far as it regards the contingent remainder. All the advantages contemplated by the statute as resulting from giving the power of alienation to the tenant in tail are lost, because the contingent estate must at all events have effect on the happening of the contingency, and the intention of the donor is only in part, and that a comparatively unimportant part, preserved.

If a man limits an estate to his son and the heirs of his body, with a contingent remainder to a remote collateral relation, the estate of the grandson is capable of being defeated, though the remote and contingent interest of the

remainder-man is sustained. No reason for this enactment can be imagined except that of preserving the uniformity of the design to continue the estate in abeyance, whenever a limitation is made upon a contingency. The evils attending such a policy we have already suggested, and to these may be added the gross incongruity resulting from the provisions relating to estates in fee tail, by which the fetter of entails is in part restored, and the substantial and principal intention of the donor is disappointed.

Such is the design and the operation of the changes which have been made by the revised statutes of the state of New York in regard to the famous doctrine of contingent remainders. Substantially, the rules which have been slowly and reluctantly adopted by the courts in support of executory devises have been extended to limitations of estates by common law conveyances, though the power of tying up estates in strict settlement has been reduced to two lives in being, instead of being extended to all the "candles" which were concurrently wasting.

The practical operation of this restriction to two lives will be confined to cases of unfrequent and rare occurrence, but the absolute suspension of the power of alienation for two lives in a commercial community will be attended with consequences extremely prejudicial, as the duration of the suspension may sometimes extend to a very remote period. It may thus happen that improvements in a populous city will be suspended for a great length of time, to the entire destruction of its most important interests.

We entertain the opinion that the relaxation of the old rules of the common law, by which the free course of alienation was at all times preserved, has been attended with the worst consequences. The whimsical arrangements which men in extremis have been encouraged to construct, instead of passing their property to those who on reasonable principles were entitled to its enjoyment, have been

the least of the evils which have sprung from the system. But we think it is truly unfortunate that such a mass of property is permitted to be set apart and the power of alienation suspended, for so long a period as is often done by contingent limitations.

If grants at common law which have this operation are so justly regarded as hostile to the public interest, it must certainly be admitted that the same result is equally injurious when it is wrought by devises, by conveyances to uses, or by any other mode of limiting property known to the law.

But if executory devises must be regarded as too firmly established in the system of real property, to authorize their prohibition and a return to the ancient law as it was understood before the case of Pells v. Brown, an extension of the evil was to be deprecated, and certainly was not to have been expected in a republican country at this commercial period of the world.

In a code or digest of the law relating to contingent remainders, as they have long been understood, the great object would be to ascertain and fix the principles which have been already established. Few if any changes could be made or suggested, for the system is founded upon rules of great simplicity and perfect wisdom and constitutes, as it has been gradually wrought out by the sages of the law, a noble monument to their learning.

S. F. D.

ART. IV. OF THE NOTICE TO BE GIVEN BY A RETIRING PARTNER ON THE DISSOLUTION OF A PARTNERSHIP.

As every ostensible partner holds himself out as responsible for the debts and engagements of the firm, of which he is a member, the law requires that every such partner on retiring shall give notice thereof, if he wishes to exonerate

himself from responsibility for contracts afterwards made by the other partners in the name of the firm. If, however, the remaining partners enter into transactions out of the usual course of business, the retiring partner will not be bound, although no notice of his retiring has been given. Thus, where a partnership was dissolved by the absconding of one of the partners, and his copartner told the holder of a note against them not then due, that they were going to fail, and renewed the note in the name of the firm, making it payable on demand, in order that the creditor might secure himself, it was held, that this note did not bind the absconding partner, notice of the dissolution being either not necessary, or being implied by the transaction itself.' When a partnership is dissolved by death, the estate of the party dying will be exempt from liability for all new contracts made by the surviving partners, whether notice has been given or not. Notice is not necessary where dissolution takes place by act of law, as where a partnership exists between two persons who reside in different countries, and the partnership is dissolved by the breaking out of a war between the two countries, the existence of the war dispenses with the necessity of giving public notice of the dissolution. But where the copartners in a firm obtained an act of incorporation as a manufacturing corporation, and transferred all their partnership property to the corporation, and the corporation made a by-law, providing that the business should be carried on in the name of the partnership, it was held, that if the partnership was dissolved by these proceedings, yet that the members of it were liable as partners, upon contracts subsequently made in the name of the partnership with third persons having no notice of the dis

1 Whitman v. Leonard, 3 Pick. 177.

2 Vulliamy . Noble, 3 Meriv. 615; Scholefield v. Eichelberger, 7 Pet. Coll. on Part. 62.

594;

Griswold v. Waddington, 15 Johns. 57; 16 Johns. 438.

1

solution. No notice is necessary when a dormant partner retires from a firm, because as his connexion with the firm was unknown, third persons have never trusted to his credit. Even where a person has retired from a firm, who, though intentionally a dormant partner, was known to many as a member of the firm, he will not, by failing to give notice of his retirement, become liable to the creditors of the remaining partners, if such creditors, at the time of their respective contracts, were ignorant that he was ever a partner. Where the partnership of a dormant partner is known to one particular creditor, he will be liable to that creditor, until he has notice of the partner's retirement. Knowledge by such creditor may be presumed, from the fact that it was matter of public notoriety at the place where the creditor dealt, that the dormant partner was connected with the firm."

3

The only notice necessary, as to all persons who have not had previous dealings with the firm, is by publication in some one of the usual advertising newspapers of the place, where the business is carried on. The notice must be a reasonable one. The reasonableness of the notice is a question partly of fact and partly of law. The jury may, if they please, find the facts specially, leaving it to the court to decide the question as to the legal sufficiency of the notice, or they may find a general verdict under instructions from the court as to what is in law a sufficient notice." When the facts which are supposed to constitute notice are

1 Goddard v. Pratt, 16 Pick. 412.

2 Evans v. Drummond, 4 Esp. 89; Brooke v. Enderby, 6 E. C. L. R. 23. 3 Coll. on Part. 313; Carter v. Whalley, 20 E. C. L. 333; Armstrong v. Hussey, 12 Serg. & R. 315.

♦ Evans v. Drummond, 4 Esp. 89; Coll. on Part. 314.

By Parke J. in Carter v. Whalley, 20 E. C. L. 334.

* 3 Kent, 67; Mowatt v. Howland, 3 Day, 353; Goddard v. Pratt, 16 Pick. 432; Martin v. Walton, 1 McCord, 16. In Ketcham v. Clark, 6 Johns. 148, the court seem to think that the reasonableness of the notice may perhaps become a question of fact in some cases.