WILLIAMSON v. WILSON.

a partnership cannot be terminated at the pleasure of either party;
yet, where, as in this instance, there is no express stipulation to
the contrary, the partnership is virtually dissolved by the death of
either of the parties. And it is said, that in England the bank-
ruptcy of one partner operates, like death, as a virtual dissolution
of the firm. In point of principle, and so far as relates to the
matter now under consideration, there can be no difference between
a bankruptcy, according to the English law, and an actual insol-
vency in fact, according to our law. So long as a man carries on
his business and has a prospect of gain, he is not considered as
insolvent; but if, in addition to such deficiency of property, his
business so far declines as to leave him no prospect of paying his
debts, he is then, according to the universal sense of mankind,
insolvent. Whether he is declared to be in this condition accord-
ing to the technical process of the English bankrupt law, or is
admitted to be so in fact, the effect upon the contract of copart-
nership must be the same. The insolvency is the total destruction
of the pecuniary capacity of the partner to fulfil his contract of
copartnership. But his pecuniary capacity was the basis on which
it rested. The contract itself, therefore, must be considered as
effectually annulled, as if the party were dead. If both of them
be insolvent, or dead, there is no efficient or living capacity left to
execute the contract; if one only be dead or insolvent, the terms
of it cannot be complied with; and where personal confidence was
the principal inducement for making the agreement, as in contracts
of this nature, it would be unreasonable; and, therefore, the other
party shall not have the executor, administrator, trustee or assignee
of the deceased, or of the insolvent, intruded upon him. Conse-
quently, the partnership, between these parties must be considered
as having been virtually and effectually terminated by their insol-
vency. It can be extended over no new transactions, nor be
allowed to expand itself any more. It must be wound up and
brought to a close; and, except for such purposes, must be deemed
to have totally ceased to exist, (i)

While a man continues solvent, the order in which he pays his
creditors is a matter of indifference, since none can suffer; and
therefore, no one creditor has a right to complain of the preference
given to another. But so soon as he becomes insolvent, that pri-

(t) Ex parte Williams, 11 Ves. 5; Harding v. Glow, 18 Vet. 281;
Noble, 8 Meriv. 614; Crawshay v. Maule, 1 Swan. 506.

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