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Three Glasgow merchants having joined in an adventure for the purchase of tobacco from Virginia, and one of them, Henry M'Caul, having died bankrupt before the division of the cargo was completed; in a competition betwixt his proper creditors and the other two partners, who were considerably in advance upon account of the cargo, the Lords found the partners had right to retain the deceased M'Caul's proportion of the cargo of tobaccos, until they were relieved of all advancements and engagements on account of the said cargo. It was yielded by M'Caul's creditors, That in a proper copartnership, where there is a society and company under a known designation, no extraneous creditor of any partner can be allowed to draw out of the company more than the free stock belonging to his debtor; but it was contended to be otherwise in a transient joint adventure, in which, if one partner be in advance, he has no more than a simple personal action against the others. To which it was answered, That though in this ease, the parties concerned were not properly socii, but only proprietors pro indiviso, yet, until the divisions be made, they are each in possession of the whole pro indiviso, and each is entitled to retain possession until he is relieved of the engagements undertaken on account of the cargo, and thereby is preferable to the diligence of extraneous creditors of the other parties concerned.
Fol. Dic. v. 2. p. 377.*** Kilkerran reports this case:
In a proper copartnery, no private creditor of any one of the partners can affect more than the free stock which remains to his debtor, after payment of his share of the company-debts.
And in the present case, which was that of the tobacco trade in Glasgow, where there is no proper copartnery, but only a property pro indiviso resulting from a particular adventure carried on by several merchants joining together, and contributing for the purchase of the outward cargo, and with the proceeds thereof purchasing the tobaccos by their factor or supercargo, which, upon the return of the cargo, they divide according to their several proportions, and are proprietors thereof pro indiviso, the Lords founds, “That, till division, they are each in possession of the whole pro indiviso, and therefore each entitled to retain possession until he is relieved of his engagements on account of the cargo, and is thereby, for his relief, preferable to the extraneous creditors of the other parties concerned.”
