Page:Federal Reporter, 1st Series, Volume 5.djvu/761

 KENTON FURNACB RAILBOAD Se MFG. 00. V. m'aLPIN. 749 �pany, obtained an interest ia this stock by its being carried by them into the new company as an asset, then, as a matter of course, the same principles which I have already alluded to would apply to the one partner acting for the other part- ners in regard to it. For, if the assets of the old company were carried forward into the new, then, as a matter of course, one partner -would have the same right and the same power to act for the parties to vote this stock and waive notice that he would otherwise. If he did not, by virtue of his introduction into this new company, become interested in this stock, the stock remained as an asset of the old company which had not yet been closed up, and which the surviving partner had a right to control and act for until the final and complete closing up of the old company. There is no aver- ment in the pleadings that the affairs of the old company were ever settled up, and until they were settled the surviv- ing partner of the old firm was the sole manager of every- thing connected with that firm in regaird to its settlement. However, if the proof in the case shows that prior to April 14, 1874, the business of the old firm had been completely wound up, and its assets distributed, the distributees then held their interests in sevefalty, and they would not be bound by the act of the surviving partner. But unless the proof does show, and there is no averment in the replication that fiuch was the f act, his right to control it continued up to the time that the settlement took place. �But it is said, on the part of the plaintiflf, that although the surviving partner might have had the right to represeht the company in these meetings and to waive the notice, that this proceeding cannot be supported or upheld, for the reason that there were creditors who existed at the time of the reso- lution of the fourteenth of April, 1874, and that as against the creditors no such proceeding could be upheld, for it was in violation of their rights ; and it is claimed that there are «xisting creditors, also, which are subsequent to these pro- «eedings of the fourteenth of April, 1874. To this it is replied by the defçndant that ail the debts which existed, or which «xist now, are the debts due and owing to the persons who ����