These suits depend on one and the same question. . The action at law was first commenced by Parker, as the assignee of Lucius Beach, and of the late firm of Bowen & Beach, composed of Lucius Beach and John Bowen. The action is trover to recover a large quantity of wool, attached by the defendant, as a deputy sheriff, and taken by him in execution, as the property of Bowen and Beach; and the question is, whether the plaintiff, as such assignee, or the defendant as such attaching officer, has the prior and legal title. The attachment was made by the defendant, as a deputy sheriff, on process in favor of a creditor of Bowen <fc Beach, before the institution of proceedings in insolvency ; but if these proceedings were legal and effectual, then, by force of the statute, the attachment was dissolved, and the defendant had no longer any right to detain the property against the demand of the assignee. The action at law was brought to trial before the late Mr. Justice Hubbard, and a verdict was returned therein for the plaintiff, subject to the opinion of the whole court.
In the mean time, the above entitled case in equity was com*178menced by the attaching officer, with a view to test the validity and correctness of the proceedings in insolvency; for the purpose of showing that such proceedings were not conformable to law, and that the master had no jurisdiction; and to procure an injunction upon the master, the assignee, and all concerned, to restrain them from prosecuting the action, and from proceeding further under the insolvent law.
It appears by the pleadings, and is not contested, that Bowen and Beach had been partners; that the business was carried on at Worcester in this state, under the personal superintendence of the partner Beach; that prior to the commencement of the insolvent proceedings, Bowen had never been an inhabitant and resident of this commonwealth; that the partnership was in form dissolved, and public notice thereof given, before the commencement of those proceedings ; that the proceedings were commenced upon the several petition of Beach to the master, as set forth in terms in the bill; and that at the time of the commencement of such proceedings, there was partnership property not yet applied, and partnership debts outstanding and not yet paid.
The court are inclined to the opinion, upon a reasonable construction óf the twenty-first section of the insolvent law (St. 1838, c. 163), that after a formal dissolution of a partnership, whilst there are partnership assets to be administered, and partnership debts remain unpaid, the creditors of the partnership may apply for proceedings in insolvency, in invitvm, in the cases and in the manner provided by law, as if the partnership were still in existence. Such a construction seems necessary to carry out the insolvent law; to make an equal distribution of the property of insolvents; and is aided by the consideration, that, though a partnership is dissolved, and the mutual authority of the partners to bind each other, as to future transactions, has ceased, yet, to some extent, and for some purposes, in regard to past transactions, the partnership still exists. Barclay v. Phelps, 4 Met. 397; Burnside v. Merrick, 4 Met. 537.
Rut whether, after a dissolution, one partner can volunta* *179tily proceed, without the consent of the other, in the same manner as if the partnership had not been dissolved, so as to place all the partnership property under the operation of the insolvent laws; and whether this would necessarily draw into the hands of the assignee, the separate property of such other partner; and whether this power would be affected by the consideration, that such other partner is not, and prior to such proceedings has not been, domiciled and personally subject to the jurisdiction of the commonwealth ; are questions, which, though somewhat debated in the present case, we have not found it necessary to decide.
For, supposing it to be held, that by the true construction of the statute, one partner, after a dissolution, can, upon his separate application, commence proceedings, which would warrant an assignment of all his separate property, and of all the partnership property, this power of one partner must be limited to a case, where the partnership, as well as the individual partner, is insolvent, and where it is alleged, that the partnership property, and the separate property of the party applying, are insufficient to pay his own and the partnership debts in full. This must be distinctly alleged, in order to bring the case within the statute, and give the master jurisdiction. The effect of such a provision,—perhaps a necessary, but certainly a very stringent provision,—superseding the custody and management of the" property of a third person, not a party and not consenting to the proceedings, must be construed strictly. If after a dissolution, one partner can exercise a power so deeply affecting the rights and property of another, the case must be fully and clearly stated.
Applying this rule to the present case, it does not appear, and was not alleged in the original petition of Beach to the master, under which the proceedings were instituted and the warrant issued, that the partnership was insolvent. After describing the firm of Bowen & Beach, and speaking of Bowen as his late copartner, he proceeds to allege, “ that individually and as such copartner he is indebted in divers *180sums of money, amounting in the whole to $500, which he is unable to pay in full, and he wishes to assign all his estate and effects, and all the estate and effects of said firm, for the benefit of his said creditors, and to obtain his discharge,” &c. In the course of the argument, it was stated on the one side, and denied on the other, that Bowen was insolvent. It is highly probable, from the case as it appears, that the partnership was insolvent. But it would not be enough, — if it now distinctly appeared in proof, — that the partnership was in fact insolvent. In order to give the master jurisdiction, a case must be stated in the petition, which shows that he has jurisdiction under the statute. Upon this ground, the court are of opinion, that the master had no jurisdiction, and that all the proceedings under said petition are void.
The plaintiff is therefore entitled to a decree, declaring the proceedings on said petition void, and that all other proceedings thereon be terminated ; and that a copy of such decree be filed with Isaac Davis, esquire, the master,, to be entered upon the minutes and record of said proceedings: Also, that Grenville Parker, assignee, be enjoined and restrained from further proceeding in the action of trover against Ivers Phillips, the plaintiff in equity, and that he discontinue the same.