(Bnrnpll Cam ^ti^nol ICibrary KF1375.P267899™"'"""'"'^ A" exposition of the principies of partn 3 1924 019 248 552 Cornell University Library The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 9248552 AN EXPOSITION OF THE PRINCIPLES OF PARTNERSHIP. BY JAMES_PARSONS, A. M., PROFESSOR EMERITUS OF THE UNIVERSITY OF PENNSYLVANIA, MEMBER OF THE PHILADELPHIA BAR. SECOND, REVISED EDITION. PHILADELPHIA: THE "LATIN HERALD,' 608 ARCH STREET. 1899 Entered, according to Act of Congress, ilithe year tSgg, by JAMES PARSONS, A. M., In the Office of the Librarian of Congress, at Washington, D. C. •uoissapjd sqi o; pa^EOipaQ PREFACE. The indigesta moles of the law was the theme of amazement in the days of lustinian ; but the bulk has gone on increasing from that day until this, and to-day lawyers are appalled at the mass, which threatens to overwhelm them unless it is reduced to dimensions which the mind can compass. By common consent it is agreed that the law must be simplified. What does that mean ? and how is the task to be accom- plished? Not by a fiat of the legislature! That complicates and obscures what is simple in itself. To simplify is to understand. The elements of law must be understood; they are simple and law is but a com- bination of the elements. Like every science it must be reduced to its elements, and one who has mastered the principles of law can state them with clearness. It is the half-educated who conflise what they profess to teach, because they do not know and rely upon the principles, which constitute the only solid basis of the law. Take an instance. The underlying principle Preface. of the Common law is consideration. The Romans made cause the main principle of the legal system ; they required a sufficient reason, not necessarily a valuable reward, to justify an act. The Common law embodies the Commercial spirit and adopts its principle as the fundamental rule of action. This is equally true of Equity as it is of strict law. A consid- eration must be shown in order to induce a Chancellor to act. Consideration, being the universal principle of law, is the test of its special institutes. Partner- ship is an illustration. The rule is laid down that one who shares the profits of a business "indefinitely" is a partner. What is the force of the adverb " indef- initely"? It means that the profits as the considera- tion for his contribution must not be partial but entire. The profits, as a whole, represent the property which produces them ; they constitute a legal definition of the property, for the subject-matter of a grant may be determined either by metes and bounds or by its nature; that is, it may be designated by the substance or the essence of the grant. Thus the profits of a salt pit will pass the land, the profits of a partnership, the title to the stock, and this defines the character of the grantee. vl Preface. How does a grant differ from an assignment for creditors ? The sale passes the title and vests it in the grantee; the assignment is provisional and the property reverts to the grantor when the object of the transfer is accomplished. This difference, which is fundamental, explains a case which has been heralded as revolutionary, and yet is but the type of an assign- ment for creditors.' The executor-partnership needed only a statement to expose the absurdity of self-immolation as a legal tenet in a system of law and equity, both founded upon self-interest or consideration. The New York Court of Appeals enforced the executor-partnership in the Spring of 1889 just before the first edition of this work was published,^ but immediately after its publi- cation took the first opportunity to scout the idea of such a partnership.^ The other states will undoubtedly follow the lead of New York. Only three theories obtain of the partnership rela- tion. I. The contract theory; 2. The solidary fund and 3. The joint estate. Upon one of these theories 1. Cox V. Hickman, § 5Q, n. 2, /, p. 249. 2. Willis V. Sharp, ? 73, n. i, p. 324. 3. Stewart Vj Robinson, ? 72, n. 2, p. 320-1. vli Preface. dep^ncjs the decision of each partnership case. The theory Ipeing understood, no hesitation need deter a judge from locating a case according to his conception of the relation. The confusion arises from the fact that he does not recur to the theory, but argues from cases which depend upon a different theory. Argu- ment is out of place. It is only necessary to point out the connection of each case with the theory upon which it proceeds, and the law will simplify itself. The consequences of the theory will establish its integrity or demonstrate its worthlessness : "By their fruits ye shall know them !" Incredible as it may seem the English Partnership Act of 1890 ignores the theories by which the cases must be classified. This is codification run mad. The Act leaves out of its purview the theory or fun- damental principle which underlies the relation and by enacting makes inflexible the common place de- tails of partnership. This obtuseness recalls the ex- perience of the Chinaman who constructed a steam engine, imitating every detail of the mechanism, only to find that, when completed, his locomotive would not go. The benighted heathen did not understand that the steam moved and regulated the whole engine Preface. and that every part must adapt itself to the power which controlled its operation. What wonder that inconsistency and confusion should characterize such aboriginal legislation/ which begins with partnership as a property relation, the partner owning his contribution, and ends with the opposite relation of debtor and creditor, the partner having no property, but only a claim.^ The rule is not enacted, but the exceptions are all set out on the roll, enumerated in detail and enacted in a series! As if the law were a congeries of facts and not a category of principles! As the exceptions all show a non-proprietor, the rule makes the proprietor a partner, and, had it been apprehended, would have been enacted, as the counterpart of all the exceptions. The contract theory of partnership does hot meet the exigencies of the relation, but, on the contrary, subverts it at every point. A contract is a private bargain, made by the parties; the law, being limited in its function to the exaction of a consideration, has nothing to do with the subject-matter. When, there- fore, it was enacted that the form of a contract should 1. LIII-IV. Vict, c. 39 ; 'go Statutes 307. 2. ^ 31, n. 2, p. 121-2. ix Preface. depend upon its subject-matter' the legislature in- terjected a foreign element into the contract, and the judges, acting under the influence of contract-law, repealed the statute as inconsistent with the nature of a contract.^ Although the contract does not affect the subject-mat- ter except through an action for a breach, it was thought that the parties could by a contract devote their con- tribution to the business which they undertook, and by this destination of the common fund stamp upon it the character of firm stock, making it an exclusive fund for the firm creditors. The suggestion, were it feasible, would be but a snare and a delusion. The parties do not profess to make a pledge of the stock for their creditors ; this is an incidental effect, and they are under no obligation to adhere to their contract, but may abandon it and withdraw the fund at any moment. The creditors have no lien to compel the enforcement of the contract.^ They rely upon a fund, which, having no independent existence, comes and goes at the will of the contracting parties. 1. 2g Car. 11. c. 17. 2. 5 10, n. 13, p. 61. 3. I leg, n. •;, r, p. 523-4. Preface. Insolvency does not change the standing or limit the control of the parties ; they are still at liberty to withdraw the fund and make use of it for a different purpose. Each retains his title in the fund and can use it to pay his separate debt, which furnishes a consideration and renders the transfer lawful. Hence the mortgage of the fund for a separate debt, is not a fraud upon the firm creditors.' Either party may employ the fund to pay his separate debt, unless his colleague intervenes to prevent him, although the withdrawal takes away the property which is the foundation of partnership. What boots it that Equity, if it had jurisdiction I would carry out the contract and enforce its perform- ance for the protection of the firm creditors? The parties are not in the habit of waiting until Equity acquires jurisdiction, or the firm is officially declared bankrupt, to make ducks and drakes of the assets. The cases show that they make the most of their al- lotted span up to the last summons.^ 1. Purple V. Farrington, ? 104, n. 10, p. 471. 2. A partner uses firm assets to pay his individual creditor, files a petition in bankruptcy and before decree gets his co-partners' assent. The subsequent ratification, equalling a prior authority, validates the trans- action, which now antedates the bankruptcy proceedings, i 173, n. 3, p. 791. A creditor obtains judgment and attaches firm stock, a partner's anteced- xi Preface. The contract being dependent for its continued ex- istence upon the will of the parties, the question arises, Does the lien of a joint judgment keep the stock united, if the parties subsequently sever the assets and refuse to enforce their contract-right ? The fund, having no independent existence, seems to elude the lien of an execution, which is but a process and pre- supposes a substance upon which it can operate.' Moreover the contract itself is a secret and may provide no funds for the creditors. The capitalist partner might retain the title to his contribution and his separate creditors would take the stock in prefer- ence to the firm creditors.^ What standing has a creditor, who relies upon a contract between third persons, whom he cannot compel to carry out the contract, or even to disclose its terms ? Apart from its unfitness the contract-theory of part- nership is impossible. Parties cannot withdraw prop- eiit promise to pay his co-partner's separate debt appropriated the stock and left nothing for tlie creditor to seize. ? 104, n. 3, p. 464. Precipitating insolvency each partner tool< up his individual note given for his contribution, and replaced it by a firm note. The assets reim- bursed each partner his contribution, which in effect is paid by the creditors. i 104, n. 5, p. 46;. 1. state V. Day, | 104, n. g, p. 470. 2. York Co. Bank's Appeal, ? 2;, n. 3, p. ioq. xii Preface. erty by contract from their individual creditors and continue to hold the title/ An exclusive fund reserved for the firm creditors is the desideratum, which every theory tries to realize. Until a basis of property is discovered, partnership principles have nothing upon which they can operate. The fund, once recognized, becomes the central point of the relation. Having an independent stand- ing, it furnishes the partners with a capital to transact the business, and severs it from any other transac- tions. The creditors possess a fund pledged to them upon which they can rely, and the separate creditors have no access to the property, which does not be- long to their debtor; although he has an ultimate in- terest in it after the firm creditors have been satisfied. The fund, if insufficient to pay its debts, renders its possessors, if without other property, insolvent, and the Statutes of Elizabeth prevent them from making any disposition of the fund except for full value,* All transfers must be for the firm or they will be set aside as frauds upon the firm creditors. The joint estate, recognized A. D. 136^, is the ade- 1. Gibson, C. J., ? 103, n. i, p. 455 ; adler, ? 102, n. 7, p. 446. 2. ? 108, p. 498. xiii Preface, quate explanation of the firm title, and establishes the rights of the joint creditors. The contract-theory abolishes the partnership in reference to third persons, the distinctive creation of the Common law. The relation is considered in ref- erence to the partners, or in reference to third persons misled by a pretended partner; but the fundamental conception of the Common law which charges a man for his act is overlooked. If he performs the act alone, he is unlimitedly liable alone; if he joins another in committing the act, they are both unlimitedly liable for the consequences of their joint act. If the act is done in trade or business they are partners, and third persons hold them bound as partners. Partner- ship is nothing but a joint act in trade. The Common law carried its principle of accountability into trade and made partnership an instance of the general rule. It is not the contract-theory but the Common Law partnership which explains the partner's right to marshall the assets and relieve his separate estate. The equity arises from the exposure of the separate estate to the liability which the Common law imposes upon the partners in excess of the amount they con- tracted to contribute to the business. They did not xiv Preface. assume by contract to contribute all their property and as the law has rejected their limited contract and imputed to them an unlimited contract, enforcing an omnium bonorum contribution, they are entitled to demand that their contract-contribution shall be ex- hausted before the Common Law contribution is enforced against their separate estate. This right is called the partner's equity; but it is not only a right, it is also a duty, which his creditors may compel him to perform. The talk about his 'renounc- ing his right' and 'waiving his equity' or 'privilege' is founded on the misconception that he has a property right; when the Statutes of Elizabeth have devested him of the property and vested it in the creditors. The diversion of the stock e. g. to pay separate cred- itors is a fraud upon the joint creditors. By losing sight of partnership as a property relation, the contract-theory converts the proprietor into a creditor. The contribution of a partner has come to be confounded with an advance. The non-contribut- ing partner is compelled to make up the contributing partner's loss of his contribution, although the con- tract exonerated him from making any contribution. In this aspect the contribution ceases to be an indi- XV Preface. vidual obligation and becomes a firm debt and eacli partner must siiare tlie loss of the contribution in equal projjortion. On this theory either partner may borrow his contribution on the credit of the firm. As the firm would have no capital, the contributing partner should not be compelled to proceed, unless the non-contributing partner could indemnify him for a loss of his contribution. But the law, on the con- trary, does not abrogate, it enforces the contract and puts the contribution at the risk of the business, com- pelling the contributing partner to proceed until his contribution is lost. The loss, too, falls on him and the attempt to throw it in part on the non-contributing partner is inconsistent with the title of a proprietor. Nor does the contributing partner acquire the right by subrogation to stand in the shoes of the creditors' paid by his contribution. Subrogation is not an original, but a subordinate remedy and could create no original right, converting the proprietor into a creditor for his own property. Does the joint liability which is independent of con- tract, create a firm stock? This is the view recently broached by Dr. Adler. In his conception the joint liability binds not only the persons of the joint Preface. obligors, but extends to the property which they jointly own and as a lien holds it fast for the joint credit- ors. The execution, in this aspect, forms part of the liability and operates in advance to exclude a separate execution. The theory of the learned Doctor is not tenable. He confounds the distinction between per- sons and things. The obligation is personal and no matter how com- prehensive it may be in extent or how closely it may unite the obligors, it remains what it is and does not become a property obligation, that is, a mortgage, a lien or an incumbrance. The joint liability has no • hold upon the property of the obligors until reduced to judgment and enforced by execution. * With the completion of this edition ends my Profes- sorship at the University of Pennsylvania. After an uninterrupted course of lectures for almost a quarter of a century I resign my chair and inscribe the final results of my work in Partnership as a debt, which, as Lord Coke says, I owe to the Profession. JAMES PARSONS, PHILADELPHIA, 1897. xvii TABLE OF CONTENTS. PART I. ASSUMING THE POSITION OF A PARTNER, OR WHAT CONSTITUTES A PARTNER. CHAPTER I. ORIGIN AND GROWTH OF PARTNERSHIP. ? I. At Roman Law, a bargain between the partners; at Common Law, a basis for dealing with third persons 31 ? 2. A Status, not a contract relation 33 § 3. Property the foundation of partnership and sufficient to charge the proprietor 34 ? 4. The contribution shows a proprietor, and measures his capacity 36 § 5. Law Merchant gave power to buy and seil 39 ? 6. Commercial paper, when confined to trade transactions, made payees partners 41 I 7- Relation extended from trade to " business " 42 I 8. Land became merchandise 46 I 9. Title controlled by firm 48 ? 10. Statute of Frauds prevents oral partnership for trading in land 49 I II. Building operations 63 \ 12. Landlord and tenant 64 i 13. Parties convert land into article of traffic 67 I 14. Non commercial partnership 69 I 15. Mining partnership 71 CHAPTER II. THE ANTECEDENTS OF PARTNERSHIP. i 16. Object, gain, not merely benefit 75 i 17. Parties fix the commencement of partnership 78 xix Table of Contents. I i8. Postponement at option, does not affect third persons 8i 1 ig. Contribution is the partner's separate obligation 84 2 20. Incoming partner makes no contribution 87 § 21. Effect for court, terms for jury 89 § 22. No contract unless terms settled go i 23. Intention insufficient 92 ^ 24. Corporation without a franchise, a partnership 94 i 2;. Contribution for duration of partnership, and carries temporary ownership 105 § 26. Special partnership, type of commercial partnership no i 27. No partnership in profits unless in stock 112 i 28. Increase or decrease of contribution for or against firm 114 I 29. Title to contribution between partners 116 § 30. Partnership converts its subject-matter into merchandise 117 i 31. Property right depends on theory of contribution iig I 32. Debt theory of contribution 12; ? 33. The title to the contribution is between the partners separate estate 128 f ^^" > Losses, total or partial shared according to contribution.. I ^^° i 3i- > ^ 135 § 36. Ratio of profits, if not fixed by agreement, for jury 139 I 37. Special partner's contribution 142 § 38. Contribution by non owner 152 § 39. Contribution by trustee 152 § 40. Cestuy que trust's right to follow fund ' 154 ? 41. Cesfuy que trust may waive tort, and sue in assumpsit to recover proceeds 157 § 42. Cesfuy que trust is entitled to fund and profits 159 § 43. Difficulty of ascertaining profits no answer to cestuy que trust.. 166 PART II. THE PRINCIPLES WHICH REGULATE PARTNERSHIP DURING ITS EXISTENCE. CHAPTER I. THE CONSTITUENTS OF PARTNERSHIP. 44. As to liability, partners only joint contractors i6g 4;. Act sufficient to charge; intention not necessary 181 46. In joint transactions parties held on implied contract 186 xx" Table of Contents. ? 47. Withholding property charges parties in contract i88 J 48. Partnership as to third persons, the legal conception of the partnership at the present day igo ? 49. The business gives commercial privileges ig; § 50. The intention of partners creates relation between them, and charges them as to third persons ig8 ? ;i. Property the medium of partnership, and partners proprietors.. 203 i 52. Sharing the profits, connects the share takers as principals through the medium of property 2og 5 53. Title to profits depends on ownership 212 i 54. Indicia of ownership establish partnership 216 § 55. Title to profits a property right 223 ? 56. Roman type survives in Common Law 227 ? 57. Property the link between profits and contribution 229 ? 58. Compensation out of profits confounded with title to profits ... 237 2 59. " Sharing " ambiguous, and law re-established by limiting it to sharing as proprietor 242 ? 60. Distinction between profits and amount equal to profits founded on sharing as proprietor and non-proprietor 251 ? 61. Parties sharing profit and loss not partners unless proprietors 254 § 62. Parties sharing gross profits not partners 255 ? 63. Commission on sales like share of gross profits 263 ? 64. Lender taking profits not a partner 267 ? 65. Amount of interest or profits not a test 273 I 66. Usurious rate does not change loan into partnership 274 I 67. Inference against a partnership 278 CHAPTER II. SUB-PARTNERSHIP. ? 68. Delectus persons confined to relation between the partners 286 CHAPTER III. HOLDING OUT. ? 6g. Holding out charges the party held out 291 § 70. Nominal partner liable in joint action with partner in fact 310 CHAPTER IV. EXECUTORS AND ADMINISTRATORS AS PARTNERS. § 71. Executor may succeed partner 316 § 72. Distributees may become special partners 318 ■xxi Table of Contents. § 73. Executor, or administrator charged as partner unless renounces 322 § 74. Executor, or administrator may limit contribution of deceased partner's estate 327 § 75. Whether executor or administrator a partner, determined by his acts 333 CHAPTER V. NATURE OF THE CONTRACT MADE BY THE FIRM IN TRANSACTING ITS BUSINESS WITH THIRD PERSONS. § 76. Partners may have collective name, except in legal proceeding 337 §77. Procedure of law merchant not adopted by Common Law 352 § 78. Contract by partners, though joint in form, several in sub- stance 360 S 79. No formula prepared for partners' obligation 361 ? 80. As court did not re-model process. Legislature rectified it 363 S 81. Joint process extinguished the several liability of partners 365 § 82. Pennsylvania Legislature corrected abuse of legal process by preventing merger in joint actions 367 § 83. Courts did not extend remedy beyond joint actions 370 i 84. Merger, though plaintiff did not know of partner's membership and kept from knowing it by the partner 372 2 8;. Right against each partner frustrated by the process 376 ^ 85. Death of partner released his estate 377 I 87. Death pending suit deprived plaintiff of recourse against the estate 380 i 88. Pennsylvania Acts prevented failure of process by partner's death pending suit 381 i 89. Pa. Acts also severed judgment; which binds deceased part- ner's representative, as well, as surviving partner 387 ? go. The Statutes recognize several liabilities 389 ? 91. Creditor entitled to both joint and several remedies for satis- faction 392 i 92, Lord MANSFIELD showed that joint contract was an aggregate of separate contracts ^gg I 93. Chief Justice Marshall carried out the severance 401 § 94. The modern practice admits the several cause of action 402 ? 95. There is no joint liability apart from the several liabilities of the partners 404 § 96. As the firm is nothing but a phrase, the contracts must be separate 407 xxii Table of Contents. CHAPTER VI. THE TITLE TO FIRM PROPERTY. 97. Co-ownership mutual restriction upon the owners 412 98. Joint tenancy the transition from communal to individual ownership 414 99. Joint tenancy adapted to commercial purposes for partnership 416 100. The creditors' rights depend upon the joint estate 418 loi. Partnership a status 432 102. The jural entity, a quasi-person, a universitas bonorum or a soli- dary fund is nothing but a joint estate without its legal basis 437 103. Partnership does not derive its distinctive features from contract 448 104. If an anomaly, partnership does not meet the requirement of trade , 462 105. Partners' estate, a joint tenancy 472 106. Tenancy in common inconsistent with relation 484 107. IWarshalling assets excludes tenancy in common 491 108. Insolvent firm can dispose of property only for full value 498 109. Partner's equity protects his separate estate, and founds firm creditors' rights 508 no. Destination outgrowth of joint tenancy 535 111. Firm creditors' preference based only on joint tenancy 537 112. Firm creditors have an exclusive right to the joint estate, and equal right with the separate creditors to the separate estate $44 CHAPTER Vn. THE TITLE TO PARTNERSHIP LAND. 113. Conversion and lien, expedients for overcoming tenure 548 114. Land may be made a firm asset, without any fiction 558 115. Purchaser without notice, but not creditors, rely on legal title 568 116. Except under Pennsylvania record system, creditors show that firm has beneficial ownership 574 117. In Pennsylvania legal title protects not only judgment, but also general, creditors 584 xxiii Table of Contents. CHAPTER VIII. THE IMPLIED POWER OF A PARTNER. ? ii8. Partner has authority to sell firm stock 594 § 119. Partner's authority to buy is determined by the usual course of business 597 ? 120. Implied authority restricted to simple contracts 599 ? 121. Partner cannot bind his firm by specialty 602 i 122. Seal, surplusage only if express authority 608 § 123. Partner cannot appear for firm 611 ^ 124. Partner cannot submit a firm claim to arbitration 615 I 125. Partner represents firm, and may bind it by admission 618 § 126. Partner's confessed judgment, will not bind co-partner 625 ? 127. Partner may borrow amount usual in the given business 631 i 128. Partner may issue or use commercial paper 633 I 129. Partner cannot issue accommodation paper 636 i 130. Authority of partner by commercial paper is defined, not by principles of partnership, but by those peculiar to commer- cial paper 639 § 131. The form of commercial paper conveys no notice of the char- acter of the transaction '.. 648 ? 132. Firm's receipt of consideration will not change character of individual transaction 654 § 133. Partner cannot guarantee the debt of another 656 § 134. Set off a medium of equity 660 § 135. Partner cannot assign for firm creditors „ 675 i 136. Assignment by a partner prima facie a dissolution 681 § 137. Partners cannot restrict co-partner's authority 68? I 138. Partners may restrict co-partner's authority by agreement, and as to themselves 685 § 139. Partners may ratify co-partner's act in excess of his authority 687 § 140. Infant partner must disaffirm at majority, or be liable for past and future acts 695 § 141. Infant partner's position determined not by his contract with partners or third persons, but entirely by his property rights 699 I 142. Married woman not a partner, unless permitted by Statute ... 702 CHAPTER IX. THE LIABILITIES OF A PARTNER. § 143. Partner answers for co-partner's tort 705 § 144. Partners do not answer for co-partner's tort, if firm only oc- casion for it 708 xxiv •Table of Contents. ? 14;. Trustee-partner by using fund in the firm charges co-part- ners -. ...., 712 ? 146. Special, by neglect made general partner liable for co-part- ners' tort ,.-v.. 716 § 147. Partner liable criminally for misappropriation of firm property 71S CHAPTER X. CHANGE OF PARTNERS. § 148. Incoming partner cannot be charged, nor can he ratify pre- vious act of firm , 719 ^149. Thetheory of trust and consideration is superceding novation 723 § 150. Retiring partner remains liable uhtil released ...'..■.....: '. 724 i 151. His liability the foundation of his equity 727 ^ 152. Continuing firm not assignee for creditors 730 i 153. Novation requires a new, partner 732 i 154. Incoming partner personally liable to firm creditors on his agreement to assume firm debts .:.".' .....'-■... 736 CHAPTER XI. THE RELATION OF PARTNERS. ? 155. The relation of partners requires utmost good faith 739 i 156. Equal power among partners in dealing with third persons; in domestic administration, majority controls 746 § 157. During partnership no litigation Ijetween partners.....' ,,. 748 I 158. Partner cannot pay firm debt and substitute himself for the creditors , 750 § 159. Partner cannot sue co-partner for njiismanagement 752 i 160. No set-off between partners, except in the account 753 § 161. Account stated equivalent to decree in account.; 755 J 162. As to transaction independent of firm account, partners are strangers 1. 757 § 163. Account for isolated transactions lies during partnership....... 759 i 164. Procedure prevents suits between partner and his firm 759 § 165. Obstacle of procedure removed by Pennsylvania Statute 760 § 166. Equitable remedy not taken away ■. 765 § 167. Equities of each partner must be ascertained and worked out 767 i 168. Common partner means different capacities ;.. ..'. 770 ? i6g. A partner as proprietor and creditor has priority over his co- partners for his advances , ;. 775 XXV Table OF Contents. § 170. Partners may recover amount converted by co-partner from his -separate estate 778 I 171. Partners may avoid co-partner's appropriation ; wliich is in excess of liis auttiority 780 I 172. Partners need not dissent from co-partner's use of firm credit or funds for his individual account 787 § 173- A partner may assert the joint title, or the partners may ratify co-partner's misappropriation 789 ? 174. The fraud must be committed against the firm 792 I 17;. A partner may dispose of his share as he likes 794 I 176. A partner may mortgage or dispose of his share absolutely... 797 PART III. THE PRINCIPLES ACCORDING TO WHICH THE BUSINESS IS WOUND UP. CHAPTER I. THE REASONS FOR A DISSOLUTION. 1 177. Dissolution only for adequate cause 801 2 178. Partner's remedy for premature dissolution, an action for the breach of contract 806 CHAPTER II. HOW DISSOLUTION IS BROUGHT ABOUT. J 179. Notice necessary to revoke partner's implied authority 808 I 180. Different kinds of notice 809 J: 181. Customers must have actual notice 811 CHAPTER HI. THE EFFECT OF DISSOLUTION. I 182. Dissolution ends partner's authority 815 I i8j. Dissolution divides joint title into separate titles 819 CHAPTER IV. THE APPOINTMENT OF A RECEIVER. i 184. Appointment of a receiver not always necessary 824 5 185. Receiver, of course against partner's vendee 826 t 186. Partner forfeits right to receiver by laches 827 xxvi Table of Contents. CHAPTER V. LIQUIDATION. 1 187. Firm continued only for liquidation 828 2 188. Liquidating partner represents firm for settlement 830 i i8g. If no liquidating partner, any partner can bind firm for liqui- dation 8-55 ? 190. Retiring partner gives up right to liquidate 836 i igi. Partner's power coupled with interest and irrevocable; If committed to stranger revocable 837 1 192. Liquidating partner not entitled to compensation 838 ? 193. General creditors control liquidating partner 841 § 194. Liquidating partner displaced only by necessity for receiver 842 CHAPTER VI. MARSHALLING ASSETS. § 195. Theories to explain marshalling 843 2 196. Firm creditors may reclaim assets from separate creditors 845 I 197. Equity interferes only when there is two funds for the different classes of creditors 848 i 198. Partner's obligation no ground for an election between joint and separate estates 850 i 199. Firm creditors' equity rests on partner's legal liability 851 ? 200. Equity does not destroy, but controls, the firm creditors' right against the separate estate 855 § 201. Equity does not restrict firm creditor, except when they have a joint fund 8;6 ? 202. The restriction protects only the separate estate 857 i 203. Creditor partner's independent claim against co-partner not enforced until firm debts are paid 860 i 204. If there would be no surplus out of the debtor-partner's sepa- rate estate, recovery might be had on independent claim ... 862 i 205. Firm creditors may become separate creditors of partner who bought out co-partner 863 § 206. Partner may compete with separate creditors of co-partner, but not with joint creditors 866 ? 207. Partner's debt to firm not an asset 868 ? 208. Surviving partner's indebtedness to firm would not prevent firm creditors from collecting debts out of deceased part- ner's estate 871 xxvil Table of Contents. § 2og. Exemption at law' of deceased partner's estate would not enable his representative to recover his share in competition with firm creditors...... 873 ? 210. Common member furnishes no ground for,marshall)ng. 876 CHAPTER VII, ACCOUNT. § 211. Account is the epitome of the partnership 883 § 212. Basis for account: i, joint propertyi..2, partner's liability for firm obligations, and 3, good faith ..; 887 § 213. Advances and improvements have priority 8gi § 214. Good-will an asset 895 ? 215. Disbursements on firm account items of credit 899 § 216. No account of illegal business 902 i 217. Partner must account for a breach of good faith 905 § 218. Account barred by Statute of Limitations or by laches 910 ? 219. Outside transactions not included in account 912 i 220. Decree for an account not essential 913 i 221. Jurisdiction of the Account 917 xxvUI Authors Mentioned. i n. page Preface xiv 100 3,6 427 lOI ? 437 1 02 2,7 445 108 5 505 ADLER, DR. KARL. Zur Entwicklungslehre p. 21 und Dogmatik des Gesellschaftsrechts, ] 78-81 Berlin, 189;, log 59.60,74 AMES, PROF. J. B. The History of Assumpsit, 2 Harvard Law Rev. i-ig; 53-69, 1888 Intro. 24 ANONYMUS. Article on Liability as a partner, 2 Am. Law Rev. 7-8; 202, 1877 26 3 HI ARNDTS, L. R. v. Arnesburg. Lelirbuch der Pandecten, ? 213, 13th Ed. 1886 91 6 397 ARTICLE entitled "Suits between Firms with a common Member," 5 Am. Law Rev. 47, 1870 166 2 766 AUERBACH, W. Das Actienwesen, 1873, p. 3 and 4 37 d -146 AUSTIN, JOHN. Lectures on Jurisprudence, or the Philos- ophy of Positive Law; London, 185 1 Intro. 12 BATES, Clement. The Law of Limited Partnership, 1886 37 2 147 The Law of Partnership, §383, i888.. 121 2,a 607 BlDDLE, GEO. W. "The Judicial Character of Chief Justice Sharswood," an Address delivered before the Law Association, 1883 103 2,6 ,461 BlGELOW. On Estoppel, 5 Ed. 565 n. i 69 2 297 BISSET, ANDREW, Esq. Law of Partnership, pp. 47-56, 1847 113 5 555 BONJEAN, DR. L. B. Traite des Actions, 2nd ed., Paris, 1845 :{• Intro. 13 28 I "5 29 I 117 79 2,6 362 BORCHARDT, DR. OSCAR. Die geltenden HandelS- gesetze des Erdballs, Berlin, 1886; sub vocibus. b'racton, HENRICUS DE. De Legibus, lib. IV., cap. 28, fol. 209, London!, MDCXL 4 ' 2 39 xxix Authors Mentioned. t BRAVARD-VEYRIERES. Traite des Sodetes Commer- ciales, p. 15, 26, Paris, 1862 16 BUMP, Orlando F. The Latv and practice of Bani 171 69 446 2,a 607 I 759 ed. from 2d Eng. ed. 1861 <- « ^" '^' Cook, Francis William, a Treatise on the Law of Partnership and joint Stock Companies, I. Vol., p. 541, 1866 96 7 411 COOLEY, JUDGE THOMAS JW. "The Uncertainty of Law," an address delivered to the Georgia Bar Association, published in 22 Am. Law Rev., 347-70, 1888 Intro. 15 CORLISS, GUY C. H. Partnership Real Estate, 32 Alb. Law Journal, pp. 284, 304, 326, 1885 116 4,11 579 DAVIES, S. D. Criteria of Partnership, 10 Am. Law Reg. N. S., p. 209, 1871 46 2 188 DURANTON. 17 Cours de Droit Franfais, p. 438 36 3 141 EDDIS, B. A., ARTHUR CLEMENT. The Rule of Ex Parte Waring, 1876 109 8,* 529 ElweLL, IMARSHALL B. Note to Waller & Davis. 21 Am. Law Reg. N. S. 711, 1882 177 E. W. Retainer of Attorneys, 37 Law Mag. 72, 1847 123 F. F. The Legal and Equitable Rights of Individual and Partnership Creditors 11 1 FELICIUS, HECTOR ICTUS. Tractatus f Ch. i, n. 4 (cited) 16 de Societate, Venetitiis, XDCX.. I Ch. 15, n. 13 104 FISHER, SIDNEY S. The Teaching of Law by the Case- System, 27 Am. Law Reg., 416-26 Intro. 22 FITTING, DR. HERMAN. Die Natur der Correalobligatio- nen, 1859, Einleitung, S 2 gi 6 397 FiJSSEL, DR. FRED FRANSC. Societates Innominata;, Lip- sias, 1842, Ch. III., 2 3 37 d 146 XXX 2 803 I 612 I 541 « 76 5 467 Authors Mentioned. ? h. page p. 304 et Bcq. § 565 53 1 136 p. 304-26 ? c|66 I I 33 p. 375-88 ? 962-3... I 3 3? p. 420-4 .• 57 2 232 ? 988 199 2,a 521 p. 276-8 168 6 77; GOLDSCHMIDT, DR. L. r „, ^^ , Handbuch des Han- J Bk. 2, Ch. i, §41. p.299 - 7 5 46 GLUCK. 15 Eriauterung der Pandecten ":l delsrechts. 1864 ^ "... ^o-,, 8 i 47 Gould, Tracy. An Article in 21 Albany Law Journal, 168,1880 163 I 759 Gould on Pleading 91 2,3 396 GOW on Partnership, p. 31, London, 1823 20 i 88 Green, WM. Comment in i Virginia Law ./ournal, 127, 1817 123 I 612 HADLEY, James, LL. D. introduction to Roman Law, 1884 Intro. 18 HAHN, DR. FRIEDRICH VON. r Art. 112, ? 7. p. 403-4 77 i,a 355 CommentarzumAllgemeinen I >> ,^, .. _o ,,. , . aa. , Deutschen Handelsgesetzbuch, n ^^i " r isj gc 660 drltte Auflage, Zurich, 1846... <- ' 5 34 , j HAMILTON, G. F. Critique on the Doctrine Vyse v. Foster, 3 Law Quarterly Review, 211, 1887 42 4 165 HAMMOND, ANTHONY. A practical Treatise ( , on Parties to Actions and Proceedings ] P' °^ - '♦'* '-^ '^2 Civil and Criminal, 1822 (. p. 85 ... 47 1 188 HARE,J. E.CLARKE. LL.D. The Law of Contracts, 1887 44 i,/ T72 " " Notes to Aldrich V. Cooper : White & Tudor's Leading ' Cases in Equity, p. 228, 4. ed., 1877 103 HOLMES, O. W. Jr. The Common Law, Boston, 1881.. HUNTER, W. A., M. A., LL. D. Roman Law> 2d ed., p. 551 etseq., 1885 91 6 398 HiJRLEMAN, JOHANNES. Das Verhaltniss ^ p. 7-8 100 2 426 der Societatsglaubiger zu denPrivat- J 88 100 3,a 427 glaubigern im Concurse der offenen 1 73-76,79 loi 3 435 Handelsgesellschaft, Zurich, 1846 (- 834, 101-2 169 7 775 xxxi Authors Mentioned. § n. page Hutchinson, R. Executions by separate creditors against tlie joint effects of tlie Partnership. 3 So. Law Rev., 250. 105 6,a 481 IHERING, RUDOLPH VON. Der Zwecl< im Recht, Vol. i, ,1877 56 a 22g J. M. L. The Power of a Partner to bind the Firm by a sealed instrument, g Am. Law Reg., 26;, 1870 121 2,0' 607 KAH, dr. BERNHARD. Beitrage zum Recht der Ewerbs- und Wirtschafts-Genossenschaften, p. 33, 1882 loi 2,b 435 KAUNITZ, Cor. Rotadeds, 240, n. n, p. 2 51 i 206 Keller, Dr. F. L. Ueber Litis Contestation, I 52, n. a... 91 6 397 KUNTZE, Dr. Artikel In der Zeitschrift fiir das gesammte Handelsrecht, VI. Band, S. 220-29 i°i 2,& 43; LABAND. Beitragezur Dogmatik der Handelsgesellschaf-J 102 3 446 ten. II. Das Gesellschaftsvermogen t^ 103 i,a,&456 LEIST, DR. B. W. Zur Geschichte der romischen Societas, Jena, 1881 i 2 33 LINDLEY, lord JUSTICE, Law of Partnership, 5. ed., 1888 Intro. i " I vol.,6th" etseq. 37 6 147 " 3d " 329 40 I 156 '• 25 48 I 182 I " " " 19 61 i,a 255 " I " 5th" ro-i 61 i,b 255 " I " " " 25 66 4,» 278 " 2 " 1140 77 2 361 MAINE, Sir henry Sumner. Ancient Law, p. 260, et seq. 6th ed., 1876 98 I 415 MAITLAND. BRACTON'S Note Book, London, 1887 Intro. 17 MARKBY, William, D. C. L. Elements of Law, 3d ed., ? 516, 1885 q8 2 415 MATTHIAE, C. VON. Controversen Lexicon des romischen f iii 4 542 Civilrechts, Leipzig, 1856-64, p. 171 t^ 19; i 845 MAYNZ, Charles. Cours de Droit Roman, 4eme ed., 1877, § 223, n. 5 169 6 775 MILL, JOHN Stuart. System of Logic Rationative and Inductive , Intro. 17 Mitchell, JUDGE J. T. Note Northern Bank of Kentucky V. Keizer, 5 Am. Law Reg. N. S. 75, 1885 106 8 487 xxxii Authors Mentioned. ? n. page MOLLOY, Charles. De lure Madtimo, 279, 282, 284; 5th ed., London, 1701 53 40 MONTAGU, BASIL. A Digest of the Law of Partnership, I vol., ch., VII, p. 183 etseq., 1822 105 13 484 MORAVETZ, VICTOR. Private Corporations. 2ded„i886, s. 748 ad finem 24 7 103 s. 699 24 10 104 Morrison. Mining reporter, 223-607 i; I 72 MOYLE, J. B. Institutes of Justinian, I vol., 472-77, 1883 91 6 398 MURRAY, A. TURNOUR. Bankruptcy of Partner, VII Law- Quarterly Rev., 53, i8gi 103 2,c 461 PARSONS, James. A Series of Essays on Legal Topics, 1876, p. 50-5 47 2,6 189 PARSONS, THEOPHILUS. The Law of Partnership. Ch. f 100 2,6 426 X, § I, p. 342, 2d ed., 1870 •- 100 9,a 429 POLLOCK, FREDERICK. A Digest of the Law of Partner- ship. 4th ed., 1883, Appendix Intro. i POTHIER, R. J. 6 Pandects 448. Paris, 1823 63 h 266 PUNTSCHART, PROF. DR. Kritische Vierteljahrschrift fur Gesetzgebung und Rechtswissenschaft. 29. Band, 513-14, 1887 91 6 397 REEVES, JOHN. History of the English Law. Finlason's ed. London, 1869 Intro. 17 Einleitung 31 36 §33, p. 233-4.. 32 127 ?I3, P-94 37 c 146 §61, p. 437 134 2 663 p. 436 134 8,6 66g p. 434-40 13411,12671 L §55, p. 386-7.. 77 I 355 RIBBENTROPP, DR. GEORG JULIUS. Zur Lehre von der Correal-Obligation, | 5, 1831 91 6 397 RITSO, FREDERICK. Introduction to the Science of Law, 1815 102 6,6 446 ROGERS, PROF. HENRY WADE. Note to Davis V. Howell, 20 Am. Law Reg., N. S. 461, 1861 in 8 544 ROGGE, DR. KARL AUGUST. Ueber das Gerichtswesen der Gerraanen, Halle, i82P. Xnixo. 16 xxxili RENAUD, ACHILLES. Das Recht der Commanditen-Gesellschaften. Leip- ■ zig, 1881 AUTHORS MENTIONED. Rousseau. Societes Civiles et Commer- ciales, Paris, 1878 i 64 § 66 ? 1736 Schmidt, FR. G. ADOLPH. Handelsgesellsdiaften in den deutschen Stadtrechtsquellen des Mittelalters, 1883 SHARSWOOD, C. J. GEORGE. Mss. Lectures at the University of Pennsylvania SMITH, JER. In Eastman v. Clark Story on Partnership, s. 51 Straccha. De Assecur, gl. 20, n. 4, cited from i TRO- PLONG, p. 21 Strong, judge WM. M. introductory Address to the Law Students of the University of Pennsylvania, October, 1879 SULPICIUS. Notes to SCiCVOLA. D. 17, 2, 30 SWIFT, Jonathan. Tale of a Tub, III. vol., 82. ed., 1803 THORNTON, W. W. Note to Uhl v. Harvey, 21 Am. Law Reg. 127, 1882 fP.g p. 21 61 etseq § 494 § 499 § 482-3, 48;, 488, 503-4 •■ ? 487 D.17,2, 63 „ 17, 2, 44 Ulpian \ " 17.2,58 „ 17,2, 20 1 ..50.17,47-' >. 14. 4. 16 VAN WETTER, P. Les Obligations on Droit Roman, 2 vol., 290, i 54, 1882 ? 28 ? 23 VAVASSEUR, A. Traite des Societes Civiles et J | 92 Commerciales. 2nd ed. Paris, 1878 §85-94 § 348... I- 2 315- XXXIV ? n. 16 a 16 b 51 b TROPLONG. Societes Civiles et Com- merciales. Paris, 1843, Vol. I.... 68 91 6 13 I 16 5 31 33 37 51 page 76 76 204 34 103 2 457 26 5 112 63 c 266 16 3 Intro. 55 2 37 3 179 5 16 d 16 3 33 I 51 u 51 b 51 c 57 5 I 63 u 67 8 77 14 225 147 809 76 77 130 204 205 205 235 32 266 282 289 542 398 68 78 123 130 145 205 Authors Mentioned. ? n. page VINNIUS, Tit. Vol. 3, 26, 8 ;i 2 206 WEIBEL, Jos. LEONZ. Die Correal-Obligationen, p. 6, et seq., 1873 91 6 398 ZANCHUS, Car. Tract, de Societate, Pars. IV, cap. X. n. 24 31 2 121 XXXV TABLE OF CASES STATED IN THIS TREATISE. A few cases have been cited, but not stated, as they simply confirm the case taken as the Illustration for the proposition in the text. The cases merely cited are marked with asterisk {*). Abbott a. Belknap, II Ohio St. 411 1882 { °^ 1 199 Abbott's Appeal, 50 Pa. 234 186; 114 Abell V. Philips, 13 S. W, 109 Ky 1890 220 Abergavenny's (the Lord) case, 6 Rep. 79 1608 | Abernathy a. Sickman, 14 Colo. 174 s. c. 23 P. 447.. 1889 104 Abrams a. Stewart, 7 Watts, 448 Pa 1838 { ^ Adams V. Beall, 67 Md. 53 s. c. 8 A. 664 1887 141 Adams a. Cooper, 2 Ch, 561 1894 j Adams a. Howell, 68 N. Y. 315 1877 181 Adams a. Lothrop, 135 Mass. 469 1882 144 Adams v. May, 27 Fed. R. 907 U. S. Cir. C 1886 76 Adams V. McKesson, 53 Pa. 81 1866 12 Adams a. Walsh, 3 Denio 125 N. Y 1846 106 Addison a. Loeschick, 3 Rob. 331 N. Y 1865 ig6 Aderholdt a. Krapp, 42 Kan. 247 s. c. 21 P. 1063 1889 211 Aigen v. Boston & Maine R. R., 132 Mass. 423 1882 62 Ainey's Appeal, 11 W. N. C. 568 Pa 1882 221 Ala. Marble & Stone Co. v. Chattanooga Marble & Stone Co., 37 S. W. 1004 Tenn 1896 114 Alberger a. Bank of Steuben Co., loi N. Y. 202 1886 130 Alderson v. Pope, i Camp. 404 note 1811 138 xxxvii n. page 3 522 2 853 I 562 5 917 2 478 I 554 8 468 i,b 403 2,6 406 5 701 4 462 3 497 5 814 4 712 I 337 I 6; 9 491 I 846 I 885 I,, 261 I 918 S,a 567 5 646 3 686 Table of Cases. Alexander a. Carothers, 74 Tex. 309 s. c. 12 S. W. 4-I889 10 Alexander v. Gorman, 15 R. I. 421 s. c. 7 A. 243 i886 107 Alexander v. King, 87 Ala. 642 s. c. 6 S. 382 1889 165 Alexander v. Morgan, 31 Ohio St. 546 1877 142 Allen a. Dickey, i Or. Ch. 40 N. J 1838 220 Allen a. Ellis, 80 Ala. 51; s. c. 2 S. 676 1887 118 Allen a. Meech, 17 N. Y. 300. 1858 197 Allen a. Morris, i McCart. Ch. 44 N. J 1861 169 / 134 Allen a. Nugent, 95 Tenn. 67 s. c. 32 S. W. 9 1895 \ Allen a. Richards, 44 Leg. Int. 432 Pa 1887 117 Allen's Appeal, 125 Pa. 544 1889 215 Alpaugh V. Savage, 19 A. 380 N. J 1890 213 Altera. Scull, 1 Harr. 147 N. J 1837 i74 Altheimer a. Bank, 4th Nat. of St. Louis, 3 S. W. 858 Mo 1887 59 Altvatera. Kenney, 77 Pa. 34 1874 181 Ambrose a. Claflin, 37 Fla. 78 s. c. 19 S. 628 1896 108 American Loan & Trust Co. a. Ricker, 140 Mass. 346.. 1885 16 Ames a. Herrick, 8 Bosw. 115 N. Y 1861 220 /109 Amsinck v. Bean, 22 Wallace 395 1874 j 109 t. no f 118 88 Amsink a. Dingman, 77 Pa. \ 1874 go Anderson v. Levan, i W. & S. 334 Pa 1841 83 Anderson v. Maltby, 4 Br. Ch. 422, s. c. 2 Ves. Jr., 244 1793 108 Anderson v. Pollard, 62 Ga. 46 1878 86 Andrews a. Foster, 2 P. & W. 160 Pa 1830 172 Andrews v. Pugh, 24 L. I. Ch. 58 1855 59 Andrews V. Wilcoxon, 25 Ch.D. ;o; 1884 210 Angell a. Arnold, 62 N. Y. ;o8 187; 65 Angle a. Shibley, 37 N. Y. 626 1868 23 Anshutz V. Fitzsimmons, 9 Pa. 180 1848 173 Anson a. Vice, 7 B. & C. 409 1827 23 Appleby a. Hawkins, 2 Sandf. 421 N. Y 1849 i44 Applegate a. Van Brunt, 44 N. Y. 544 1871 116 Appling a. Austin, 88 Ga. 54 s. c. 13 S. E. 955 1891 180 , , , ,, ^ ,f69N.Y.i48 1877 \ Arbendrotha.Durant,tg^f^_Y_,^2 ^gg^ | 37 Argall V. Smith, 3 Denio 435 1846 37 xxxviii n. 1 page 15 62 3 498 8 764 5 703 2 915 2 596 2 849 4 777 5," 666 I 837 6 592 4,a 902 2 893 4 794 I 243 I 812 4 501 6 78 3 915 2,6 521 g,d 534 2 536 5 384 6 384 3 371 4 502 6 379 I 788 2,g 246 3 879 I 274 3 93 3 791 5 94 3 710 18 583 I 810 3.<; 151 3.» 149 Austin V. Williams, 2 Ohio 61 1825 | 47 556 554 Table of Cases. ? n. page Armstrong a. Fettretch, ; Rob. 339 N. Y 1868 182 5 817 Armstrong a. Higgins, 9 Colo. 38 s. c. 10 P. 232 1886 i; 4 73 Armstrong a. Sawyer, 47 P. 391 Colo 1896 94 i,c 404 Arnold V. Angell, 62 N. Y. 508 1875 6; i 274 * Arnold a. Cochran, 58 Pa. 399 i868 24 5 103 Arnold v. Hagerraan, 45 N. J. Eq. 186 s. c. 17 A. 93. ..1889 108 6 507 Arnold a. Paterson, 45 Pa. 410 1863 24 4 103 Arthur a. Warring, 32 S. W. 221 Ky 1895 158 3 751 r 8 2 Arthurs a. Kramer, 7 Pa. 165 1847 |,,, Ash V. Guie, 97 Pa. 493 1881 16 i 76 Ashley V. Williams, 17 Or. 441 s. c. 21 P. 556 1889 2H 2 88; Ashton a. Robinson, 20 Eq. 25 1873 28 2 115 {171 79 Astor a. Ogden, 4 Sandf. 311 N. Y 1850 54 i 220 Atlantic & Marine Ins. Co. a. Mallery, 51 Conn. 222.. 1883 25 2 io8 A.. <- 1 u KK t /loQ. B. D.488...l883\ Attorney General V. Hubbuck, 1 13 q. b. D. 27;...i884/ "^ ^ Atwell a. Morrison, 9 Bosw. 503 N. Y 1862 174 2 793 Atwood V. Impson, ; C. E. Gr. 151 N. J 1869 109 i,a 518 *Auckland a. Tretheway, 2 Saunders, 51 1669 105 7 481 Austin V. Appling, 88 Ga. 54 s. c. 13 S. E. 95; 1891 180 i 810 Austin V. Holland, 69 N. Y. 571 1877 181 2 813 44 8 180 76 26 351 Austwick a. Russell, I Sim. Ch. 52 1826 15; 6 745 Autin V. Townsend, Pen. 744 i8ii 76 4 341 Averill V. Laucks, 6 Barb. 19 1849 114 10 567 Avery V. Myers, 60 Miss. 368 1882 7; 2 33; Axtell a. Young, 2 H. Bl. 242 arg 1784 58 i,^ 240 Ayera. Smith, 13 Otto 320S. C 1879 74 5 33° Aylett V. Walker, 92 Va. 540 s. c. 20 S. E. 226 1896 16; 7 764 Azel V. Betz, 2 E. D. Smith, 188 N. Y 1853 i7 3 8° Babcock a. Bates, 9; Cal. 479 s. c. P. 605 1892 10 13 61 Bacheller a. Lawrence, 131 Mass. 504 1881 37 a 145 Bad.eyv.ConsolidatedBank.{gg:g:jg} >886 { •-;- _^ ^^^ Bagley V. Smith, 10 N. Y. 489 1853 217 3 907 Bailey a. Cushman, I Hill, 526 N. Y 1841 58 i,/ 2J9 xxxix Table of Cases. *BaiIey V. Edwards, ii6 Eng. C. L. Rep. 775, 1866 Bailey a. Engel, 82 Me. 118 s. c. 16 A. 106 1889 Bailey a. Morlarty, 46 Conn. 592 1879 Bailey a. Read, L. R. 3 App. Cas. 94 1877 Baillie a. Hooper, 118 N. Y. 413 s. c. 23 N. E, 569.. .1890 Bain a. Goulding, 4 Sandf. 716 N. Y 1852 Baird a. Martin, 175 Pa. 540 s. c. 34 A. 809 1896 Baker V. Dawbarn, 19 Grant's Ch. 113. (Up. Can.)..i872 Baker a. Duff, 78 Iowa 642 s. c. 43 N. W. 46; 1889 Baker a. Westmore, 9 Johns. 307 N.Y 1812 Baker's Appeal, 21 Pa. 76 1853 Balcarres Brook Steamship Co. a. Wilson, i Q. B. 422 1893 Baldwin v. Burrows, 47 N. Y. 199 1872 Baldy v. Brackenridge, 39 La. 660 s. c. 2 S. 410 1887 Ballentine a. Frehlinghuysen, 38 N. J. Eq. 266 1864 Ballou V. Spencer, 4 Cowen 163 N. Y 1825 Balto a. Harris, 17 A. 1046 Md 1889 Banco de Portugal, ex parte, 11 Ch. D. 317 1879 Banco de Portugal v. Waddel, 5 App. Cas. 161 i88o Bank v. Dakin, 24 Wend. 411 N. Y 1840 Bank v. Monteath, i Denio 402 N. Y 1845 Bank V. Morris, 18 Phila. 340 1886 Bank v. Sawyer, 38 O. St. 339 1882 Bank a. Templar, 56 Fed. 580 1886 Bank v. Willey, 7 Wash. 525 s. c. 35 P. 411 1893 Bank, American Nat., a. Blodgett, 49 Conn. 9 1881 Bank, Belleville Savings, v. Winslow, 30 Fed. 488. ..1887 Bank, Buffalo City, v. Howard, 35 N. Y. 50 1886 Bank, Capital State, a. Eyrich, 67 Miss. 60 s. c. 6 S. 615 1889 Bank, Catskill, v. Gray, 14 Barb. 471 1851 Bank, Central City Sav., v. Walker, 66 N. Y. 425....1877 Bank, Citizens,' v. Hine, 49 Conn. 236 i88i Bank, City of Glasgow, a. Muir, 4 H. L. 337 1879 xl ? ri. page go 3 391 123 3 614 171 5. a 784 202 2 859 207 I 871 210 1,2 879 210 4 880 135 2 679 177 5 804 22 3 91 196 3 847 12 2 67 62 U 261 no 3 536 76 5 341 23 I 92 144 3 711 28 3 116 8 I 47 127 I 632 168 2 774 168 2 774 44 6 179 76 23 351 44 9 180 68 2 289 19 3 85 182 I 816 126 7 630 74 I 329 85 I 376 69 20 308 log 4,& 522 205 I 866 134 5,& 666 58 I./ 239 24 3 102 23 3 93 73 2 324 Table of Cases. ? n. page Bank, Consolidated, a. Badley, { ^ gj; g; ^^^ } ....1886 { ^f^\^ ^^g Bank, Consolidation, a. Miller, 48 Pa. 514 1865 131 ; 653 Bank, Farmers' Deposit of Pittsburgh, a. Bank of Alleg., First Nat., 5 Central R. 505 1886 74 5 330 Bank, Fayette Nat., of Lexington v. Kenney, 49 Ky. 133 1880 200 4 856 Bank, First Nat., v. Bissel, 2 McCrary 73 U. S. C. C 188; i; 4 73 Bank, First Nat., v. Strauss, 66 Miss. 479 s. c. 6 S. 232 1889 173 4 791 Bank, First Nat., of Chicago v. Sloman, 42 Neb. 350 s. c. 60 N. W. 589 1894 44 i,c 171 Bank, First Nat., of Greenville a. Buzzard, 67 Tex. 83 s. c. 2 S. W. 54 1886 44 5 179 Bank, Fourth Nat., St. Louis, v. Altheimer, 3 S. W. R. 858M0 1887 59 I 243 Bank, F. & M., a. Downey, 13 S. & R. 288 Pa 1825 81 4 367 Bank, F. & M., v. Green, i Vr. 366 N. J .1863 181 6 814 Bank, Gainesville Nat., a. Stevens, 62 Tex. 499 1884 ;i 3 207 Bank, Jackson, v. Durfey, 72 Miss. 971 s. c. i8 S. 455 1890 108 5 504 Bank, Lancaster, v. Myley, 13 Pa. 544 1850 113 7 556 Bank, Mechanics,' v. Godwin, I Hal. Ch. 334 N.J....1846 116 12 581 Bank, Meriden Nat., v. Gallaudet, 120 N. Y. 298 s. c. 24 N. E. 994 1890 45 185 Bank, Metropolis Nat., v. Sprague, 5 C. E. Gr. 13 N.J 1869 199 4 854 Bank, National, v. Cushing, 53 Vt. 321 1881 202 i 859 Bank, Nat. Exchange, v. White, 30 Fed. 412 U. S. C.C.Mich 1887 131 3 652 Bank, N. Y. Nat. Exch., v. Crowell, 177 Pa. 313 i8g6 180 4 811 Bank of Alexandria, First Nat , v. Payne & Co's. Assignee, 85 Va. 890 s. c. 9 S. E. 153 1889 182 6 818 Bank of Allegheny, First Nat., v. Bank, Farmers' Deposit of Pittsburgh, 5 Central 50; 1886 74 5 330 f 109 S,c 528 Bank of Bellow's Falls a. Washburn, 19 Vt. 278 1847 \ ,u 2 541 Bank of Buffalo v. Thompson, 121 N. Y. 280 s. c. 24 N. E. 473 1890 102 i,c 445 Bank of Buffalo, Com'l, v. Warren, 15 N. Y. 577—1837 i39 i.'i 691 Bank of Brooklyn, City, V. Dearborn, 20 N.Y. 244 .1859 69 8 301 xli 84 6 375 130 4 644 ni 6 653 121 4 608 105 2 478 53 I 215 189 2 836 132 3 655 134 16 673 Table of Cases. ? n. page Bankof Brooklyn, City, v.McChesney, 20 N.Y. 240.1859 181 3 813 Bank of Cardington, First Nat., a. Meier, 45 N. E. 907 Ohio 1896 130 7 646 Bank of Commerce v. Mayer, 42 La. An. 1031 s. c. 8 S. 260 1890 Bank of Commonwealth v. Mudgett, 44 N. Y. 5i4....i87i Bank of Middletown a. Haldeman, 28 Pa. 440 1857 Bank of Mt. Pleasant a. McKee, 7 Ohio 463 1836 Bank of N. Y. v. Vanderhorst, 32 N. Y. 553 1865 Bank of Ontario v. Hennessey, 48 N. Y. 545 1872 Bank of Pittsburgh, Central, a. Fulton, 92 Pa. 112. ..1879 Bank of Salem, Nat., v. Thomas, 47 N. Y. 15 1871 Bank of United States a. Cramond, i Binn. 64 Pa. ..1803 f 66 Barb. 189 1 Bank of Watertown V. Landon,| j^ Pr 721 } '^''° '^ ^ ^'^ Bank, Roger Williams Nat., v. Hall, 160 Mass. 171 s. c. 35 N. E. 666 '.... 1893 198 2 851 Bank, San Antonio Nat., v. Blocker, 77 Tex. 73 s. c. 13 S. W. 961 1890 102 i,a 442 Bank, State Nat., v. Butler, 149 111. 575 s. c. 36 N. E. 1000 1894 Bank, Steuben Co., v. Alberger, loi N. Y. 202 1886 Bank, The Agr. & Mfrs., v. Stambaugh, 13 S. & R. 299 Pa 1825 Bank, The Cecil, a. Bowman, 3 Grant 33 Pa 1859 Bank, Union Nat., a. Dreyfus, 45 N. E. 408 111 1896 Bank, Weybosset Nat., a. Colwell, 17 R. L 288 s. c. 15 A. 80; 17 A. 913 1889 (32 Pa. 446 1859 I Bank's Appeal (York Co. ,-^ ,„ „, ^^ (36 Pa. 458 i860 Banks, ex parte, i Atk. 106 1740 Banks v. Steele, 42 N. W. 883 Neb 1884 Bannister v. Miller, 32 A. io66 N. J 1895 Barber a. Durbin, 34 Ohio 311 1846 Barber a. Suydam, 6Duer 34 N.Y 1836 Bardwell V. Perry, 19 Vt. 292 1847 \ , Barge a. Osborne, 29 Fed. 725 1887 Barker V. Mayo, 129 Mass. 517 1880 Barker V. Parker, I. T. R. 287 1786 Bariow a. Noakes, 26 L, T. 136 s. c. 20 W. R. 388... 1872 xlii 15 6 74 130 5 646 log Z,d 529 131 2,b 651 130 7 647 130 8 647 25 3 109 109 8,* 533 126 i,a 629 202 I 859 183 4 822 19 3 86 217 4 908 84 4 375 m 6 543 200 2 855 135 4 680 169 4 778 71 I 318 II I 63 Table of Cases. ? n. page Barnard, in re, 32 Ch. D. 44 1886 130 6 646 Barnes V. Barrow, 61 N. y. 39 1874 133 i 658 Barnes a. Foster, 81 Pa. 377 1876 117 i,/ 589 Barnet a. Yohe, 3 W. & S. 81 1841 34 3 134 Barnkoff a. Flower, 20 Or. 132 s. c. 25 P. 370 1890 10 14 61 Barrow a. Barnes, 61 N. Y. 39 1874 133 i 658 Barrows a. Jenkins, 73 Iowa 438 s. c. 35 N. W. 5io.'.i887 160 i 753 Barry V. Nesham, 3 C. B. 641 1841 ;8 1,1- 239 Barthan a. Kapp, i E. D. Smith 622 N. Y 1852 220 4 917 Bartle a. Cochran, 91 Mo. 636 s. c. 3. S. W. 854 1887 48 3, a 193 Barton a. Conklin, 43 Barb. 435 N. Y 1864 69 5 298 f 2 Camp. 971 ^ ^ Barton V. Hanson,-! , Taunt Aoi' °'^ ''^ Bast's Appeal, 70 Pa. 301 1872 155 5 744 f 103 4 462 Bateman a. Brock, 25 Ohio St. 609 ••1874 ■! „ Bates V. Babcock, 95 Cal. 479 s. c. 30 P. 605 1892 10 13 61 Bates V. James. 3 Duer. 45 N. Y 1854 171 5,& 784 Bates a. Radenhust, 2 Bing. 463 ; 11 Moore 421 76 6 342 Battin a. Jones,- 30 Pa. 84 1857 139 ;,« 693 *Baurichter a. Christman, 10 Phila. R. 11; 1874 35 4 139 Baxter V. Rollins, 90 Iowa 217 s.c. 57 N. W. 836 1894 20 3 89 Bayard a. Gratz, II S. & R. 41 Pa 1824 72 i 320 Bayley V. Smith, 10 N. Y. 489 1853 178 2 807 Beach V. Hayward, 10 Ohio 45; 1841 7612 34; Beach a. Hill, i Beas. 31 N. J 1858 { ^^ ' "6 (■213 2 893 Beale a. Jennings, 18 A. 550 Pa ...i88g 161 5 756 Beall a. Adams, 67 Md. 53 s. c. 8 A. 664 1887 141 5 7oi {109 2,6 521 109 g,d 534 no 2 536 Bean a. Walker, 34 Minn. 427 s. c. 26 N. W. 232 1886 124 i,b 617 Beasley a. Green, 2 Bing. 108 N. C 183; 62 i,^ 262 Beaston a. Yorkshire f L. R. 4 C. P. D. 204 \ gg g 20 350 B'kgCo., I " " 5 " " "109/ • " Beaton v. Wade, 14 Colo. 4 s. c. 22 P. 1093 1890 SC 6 379 Beatson v. Harris, 60 N. H. 83, s. c. 19 Cent. L. I. 27;, 1884 121 2 606 Beauchamp a. Lovell, H. L. 607 1894 76 8 342 Beaver V. McGrath, 50 Pa, 479 1865 24 i loi Bechtel a. Philpott, 62 N. W. I74 Mich 1895 76 4 34i xliii Table of Cases. Beck a. Mair, 4 E. Rep. 855 Pa i88g Becker V. Boon, 61 N. Y. 317 1874 Beckett V. Ramsdale, 31 Ch. D. 177 1855 Beechera. Gates, 60 N. Y. 518 187; Bekher a. Guild, 119 Mass. 257 1876 Belknap v. Abbott, u Ohio St. 411 1882 Bell V. Hepworth, 134 N. Y. 442 1892 Bell V. Newman, 5 S. & R. 78 1819 Bell V. Skellen, s. c. 3 N. E. 918 1892 Bendell v. Hettrick, 3 Jones & Spencer 405 N. Y 1873 Benjamin v. Porteus, 2 H. Bl. 590 1796 Benjamin v. Zell, 100 Pa. 33 1882 Benners v. Harrison, 19 Barb. 53 N. Y 1854 Bennett v. Buchan, 61 N. Y. 225 1874 Bennett a. Hoyt, 59 N. Y. 538 1872 Benson v. Dublin Warehouse Co., 25 S. E. 645 Ga...i896 Benson v. Tilton, 58 N. H. 137 1877 Bentley V. Craven, 18 Beavan 7; 1853 Bentley a. Reade, 4 Kay & J. 657 1858 Bentley's Estate, 16 Phila. 263 Pa 1883 Bernheim a. Johnston, 86 N. C. 339 1882 Bernheimer V. Rindkopf, ii6 N. Y. 428 s. c. 22 N. E. 1074 1889 Berry a. Breinson, 7 S. 322 Miss i8go Berry v. Kelley, 4 Rob. 106 N. Y 1866 Bettner a. Cotter, i Bosw. 490 N. Y 1857 Betts V. June, 51 N. Y. 274 1873 Betz a. Azel, 2 E. D. Smith 188 N. Y 1853 Bibb Furnace Co. a. Fanchon, 2 S. 268 Ala 1887 Bidwell a. Irwin, 72 Pa., 244 1872 Billings a. Bowen, 13 Neb. 339 s. c. 14 N. 152 1882 Billings V. IMeigs, 53 Barb. 272 N. Y 1869 Binney v. Mutrey, 12 App. Cas. 186 1886 Birdsall v. Cole, 2 Stock Ch. 63 N. J 1854 Bishop V. Countess of Jersey et al., 2 Drewry 143 ...1854 Bishop a. Dodd, 50 La. An. 1178 1878 xliv i n. page 124 2 617 124 I, ft 617 88 8 386 182 5 817 171 5,"^ 785 ( 109 I-199 3 522 2 853 183 8 822 f 107 I 496 III 7 544 (.2C0 4 8;6 183 8 822 69 22 309 63 2 267 10 10 59 8 I 47 133 3,« 6;9 86 3 379 143 3 707 220 3 915 155 3 742 48 3,« 192 221 I 918 fiig 3 599 ii38 4 686 1 156 I 747 108 4 502 212 8 891 199 2 853 15 5- 73 i88 4 834 17 3 80 124 1,6 617 18 4 83 n6 6 580 134 8 668 31 2 121 f lOI I 434 t.184 2 825 144 2 710 69 3 298 Table of Cases. Bishop a. Ettenborough, ii C. E. Gr. 262 N. J 187; Bishop a. Speer, 24 O. St. 590 1874 Bissel a. Banl<, First Nat., 2 McCrary 73 U. S. C. C..i88; Bissel V. Foss, 114 U. S. 252 1885 Bitter V. Rathman, 61 N. Y. 512 1875 Bitzer V. Shunk, i W. & S. 340 Pa 1841 Bixby a. R. R. Co., 55 Vt. 235 1882 Blacl< a. Caviness, 33 S. W. 712 Tex 1895 Blacli a. Pruyn, 21 N. Y. 300 i860 Black a. Smith, 9 S. & R. 142 Pa 1822 Black's Appeal, 89 Pa. 281 1879 Blackwell v. Rankin, 3 Hal. Ch. 152 N. J 1848 Blair V. Bromley, 2 Phil. Ch. 354 '....1847 Blair V. Snover, ; Hal. Ch. 103 N. J 1828 Blair V. Wood, ic8 Pa. 278 1885 Blaker V. Sands, 29 Kans. 551 1883 Blanchard a. Hesketh, 4 East, 144 1803 Blancharda. Livingston, 130 Mass. 341 1881 Blanchard a. Pattison, 5 N. Y. 186 i8;i Blanford a. Willett, i Hare 253 1842 Blight V. Ewing, i Pittsburg 27; Pa 1856 Block a. Wilson, 164 Pa. 555 s. c. 30 A. 488 1894 Blocker a. Bank, San Antonio Nat., 77 Tex. 73 s. c. 13 S. W. 961 1890 Blodgettv. Bank, Am. Nat., 49 Conn. 9 1881 Blodgett V. Weed, 119 Mass. 215 1875 Bloss a. North, 30 N. Y. 374 1864 Bloxam v. Pell, 2 Wm. Bl. 999 1775 Boardman a. Farnsworth, 131 Mass. 115 1881 Body a. Owen, 5 A. & E. 28 1836 Boeklen v. Hardenburgh, ; J. & Sp. no N. Y 1874 Bogert a. Murray, 14 Johns. 318 N. Y 1817 Boggs a. Sheppard, 8 Neb. 257 1879 Bogue a. Deal, 20 Pa. 228 1853 Bogue V. Steel, i Phila. 90 1850 xlv i n. page 116 10 581 70 2 314 15 4 73 15 4 73 69 20 3c8 109 4,a 522 142 3 7C3 95 2,c 4c6 126 3 628 106 2,b 488 114 8 567 94 l,c 404 84 I 374 9 1 49 116 5 ;8o 109 S,c 524 109 5,« 525 196 2 846 144 3 711 182 5 818 96 I 409 14 I 70 48 "5 194 31 7 124 62 I,e 261 43 b 168 59 2,b 244 30 I 118 102 l,u. 442 74 I 329 128 2 634 76 II, U 344 66 2 277 37 3," 149 59 2,0 250 67 6 280 175 2 795 211 4 887 214 5 898 100 7 428 106 9 491 Table of Cases. ? n. page Bogue's Appeal, 82 Pa. loi 1876 109 8,e 530 Bond, ex parte, i Atk. 98 1745 200 3 856 Bond V. Gibson, I Camp. 185 i8o8 119 i 598 Bond V. Pittard, 3 M. & W. 357 1838 48 3,« 193 Boon a. Becker, 61 N. Y. 317 1874 124 i,b 617 Boston & Col. Smelting Co. v. Smith, 13 R. I. 27. ..1883 64 2 269 Boston & Me. R. R. a. Aigen, 132 Mass. 423 1882 62 i,e 261 Bostwick a. Champion, i8 Wend. 182 1837 62 i,/ 261 Boswell a. Dry, I Camp. 329 1818 | ^ 4 176 •-62 I, a 259 Boswell V. Green, I Dutch. 391 N. J 1856 137 6 68; Bourne V. Freeth, 9 B. & C. 632 1829 23 4 94 Bourrett a. Byers, 64 Cal. 73 1883 76 18 349 Bowen V. Billings, 13 Neb. 339 s. c. 14 N. 152 1882 116 6 580 Bowman V. Bank (The Cecil), 3 Grant 33 Pa 1859 131 2,6 651 Bowman V. Kistler, 33 Pa. 111-2, 1859 | ^^ ' ^^^ •- 90 I 390 Bowman V. Spalding, 2 S. W. 911 Ky 1887 149 i 723 Boyden V. Boyden, g. Met. 519 Mass 1845 14° 2 697 Boyer a. Fichthorn, ; Watts. 159 1836 139 6 693 Brackenridge a. Baldy, 39 La. An. 660 s.c. 2S.410...1887 144 3 711 Bradbury V. Dickens, 27 Beav. 53 1859 214 6 899 Bradner a. Strang, 114 U. S. 55; 1884 f4; 2 715 Bradford Banking Co. a. Rouse, App. Cas. 586 1894 153 5 735 Brasfield V. French, 59 Miss. 632 1882 74 4 330 Braswell a. Judge, 13 Bush. 67 Ky 1887 15 4 73 Breinson V. Berry, 9 S. 322 Miss i8go 212 8 891 Brenton v. Thompson, 20 L. I. 133 Dist. of Phila 1863 | '°5 ^'"^ 46i •■109 5, a 523 Brewer a. Dyke, 2 Car. & K. 828 1849 148 5 721 Brewer V. Norcross, 2 C. E. Gr. 219 N. J 186; 219 2 913 Brewster a. Patterson, 4 Ed. Ch. 352 N. Y 1844 81 47 Brewster V. Sterrett, 31 Pa. 115 1858 | ^^ 2 382 I- 109 7,a 526 Brick a. Young, Pennington 663 N. J 1810 157 3 749 Briggsv. Briggs, 15 N. Y.471 1857 i;o i 726 Briggs, ex parte, 3 Dea. & Ch. 367 1833 48 4 193 Briggs a. Rumsey, 139 N. Y. 323 s. c. 24 N. W. 929.. 1893 128 g 636 Briggs V. Vanderbilt, 19 Barb. 222 N. Y 185; 62 i,« 260 Brigham a. Miller, 50 Cal. 615 1875 ( '°5 5 480 •■ 106 7 491 Brights a. McKinney, 16 Pa. 399 1851 172 3 788 xlvi Table of Cases. Brine a. Moley, 120 Mass. 324 1876 31 Brink a. Greenwood, i Hun. 227 N. Y 1874 59 Bristow a. Staats, 73 N. Y. 264 1878 105 Brock V. Bateman, 25 Ohio St. 600 1874 ( "^^ •■ 107 Brockelbank a. Stacker, i; Jur. 591, r 59 3 Mac. & Cord. 250 1851 1 60 Brockway v. Burnap, 16 Barb. 309 N. Y 1853 60 Brodliead a. Greenwood, 6 Barb. 593 N. Y 1850 109 Brodie.a. Howell, 6 Bing. N. C. 44 1839 18 Brokam a. Runyon, i Hal. Ch, 340 N. J 1846 220 Bromley a. Blair, 2 Phil. Ch. 354 1847 144 Brooks V. Martin, 2 Wall. 70 1874 216 Brophy v. Holmes, 2 Molloy, Ir. Ch. i 1828 48 Brotzman a. Newcomet, 69 Pa. 34 1871 181 Brown v. Clark, 24 Pa. 469 1850 182 Brown a. Dutton, 31 Mich. 182 1875 14° Brown v. Hicks, 24 Fed. R. 811 1885 59 Brown v. Hutchinson, 2 Q. B. 126 1895 211 Brown v. Jaquette, 94 Pa. 113 1880 12 Brown V. Pettit, 178 Pa. 171 i8g6 130 Brown v. Tapscot, 6 M. & W. 119 1840 138 Brown a. Thomas, 67 Md. 512 s. c. 10 A. 713 1887 177 Brown V. Thompson, Coxe2N.J 1790 134 Browning a. Uhler, 4 Dutch. 79 N. J 1859 129 Brown's Appeal, 89 Pa, 139 1879 221 Bruce a. Bundy, 61 Vt. 619 s. c. 17 A. 796 1889 44 Brundage a. Seltzer, 17 A. 9 Pa 1889 218 Brundred v. Muzzey, i Dutch" 268 N. J 1855 59 Brush V. Jay, 113 N. Y. 482 s. c. 21 N. E. 184 1889 183 Brush a. Levy, 45 N. Y. 589 1871 10 Brush a. Wood, 72 Cal. 224 s. c. 13 P. 627 1887 160 Bryan v. Bullock, 25 S. E. 865 N. C 1896 22 'Bryan v. Tooke, 60 Ga. 437 1878 129 Bryant a. Grant, loi Mass. 567 1869 \ ^' <■ 212 Bryant /. Wardell, 2 Exchange 479 1848 165 Buchan a. Bennett, 6i N. Y. 225 1874 i33 Buchan v. Sumner, 2 Barb. Ch. 165 N. Y 1847 114 Buchanan v. Cheeseborough, 2 Duer, 238 N. Y 1856 215 Buchanan v. Scandia Plow Co., 39 P. 399 1895 126 Buckham, in re, 10 Nat. Bkr'cy Rep. 206 1874 168 xlvii n. page 6 124 3 251 3 479 4 462 3 497 2'/ 247 I 253 I 253 S,C 524 4 83 3 916 3 711 3 904 3,* 193 I 813 2 816 4,& 6g8 2,e 246 5 887 I 64 2 643 2 686 12 806 7,a 668 2 638 I 918 3 176 3 911 2,1 248 I 821 3 55 2 753 2 91 5 639 2 138 7 891 5 762 3,1 659 4 563 2 900 I 627 I 774 Table of Cases. Buckingham v. Ludlam, 2 Stew. 345 E. A., N. J....1878 Buckley v. Buckley, 11 Barb. 43 N. Y 1850 Budd a. Wilkins, i Hal. 153 N. J 1822 *Buhl Iron Works a. Chase, 55 Mich. 139 s. c. 20 N. W. 827 1884 Buisson a. Jaquin, 11 How. Pr. 385 N. Y 1855 Bulkley v. Dingman, n Barb. 289 N. Y 1851 Bullen V. Sharp, L. R. i C. P. 86 1866 Bullitt V. M. E. Church, 26 Pa. 108 1856 Bullock a. Bryan, 25 S. E. 865 N. C 1896 Bulter Co. r 44 Neb. no s. c. 62 N. W. 308-1 g a. Perkins, 1 46 Neb. 314 s. c. 64 N. W. 975 J ' Bundy v. Bruce, 6i Vt. 6ig s. c. 17 A. 796 1889 Bunning a. Flocton, L. R. 8 Ch. App. 323 n 1864 Burckle v. Eckhart, 3 Comst. 132 s. c. i Denio337 ....1849 Burdick v. Garrick, L. R. ; Ch. App. 233 1870 Burgan v. Cahoon, i Pennypacker, 320 Pa 1881 Burge a. Heyhoe, 9 C. B. 431 1850 *Burke a. Tomlinson, 5 Hal. 29; N. J 1829 Burkhardt V. Burkhardt, 42 Ohio St. 474 1885 Burnap a. Brockway, 16 Barb. 309 N. Y 1853 Burneli v. Hunt, 5 Jur. 6;o 1841 Burnett v. Snyder, 81 N. Y. 550 1880 Burney a. Savannah Grocery, 25 S. E. 915, 1896 Burnham a. Smith, 3 Sumner 435 U. S. C. C 1838 *Burns v. Hall, Pen. 984 1812 Burns v. Rowland, 40 Barb. 368 N. Y 1863 Burreil v. Mandeville, 2 How. 569 S. C 1844 Burrough's Appeal, 26 Pa. 264 1856 Burrows a. Baldwin, 47 N. Y. 199 1872 Burss a. La Flex, 77 Wis. 536 s. c. 46 N. W. 8oi 1890 Burt a. Duryea, 28 Cal. 569 1865 Burt a. Traphapen, 67 N. Y. 30 1876 Burton a. Patterson, Pennington 701 N. J 1810 Burton v. Wookey, 6 Mad. Ch. 367 1822 Bush V. Bush, 33 Kan. 556 s. c. P. 794 1885 Bush V. Crawford, 9 Phila. 392 U. S. C. C 1872 Bushnell a. Edmunds, L. R. i Q. B. 96 1865 xivili ? n. page (169 3 I213 4 777 894 f 113 2 1 116 17 554 583 85 3 377 134 S,d 670 75 3 335 70 2 315 64 4,g 273 109 g,c 534 22 2 91 108 2 500 44 3 176 42 2 162 1 53 I I. 58 2,a 214 244 43 c 168 69 18,6 305 59 i,^ 240 76 2 340 214 2 897 60 I 253 18 I 82 68 2 289 142 2 703 10 9 58 76 2 340 69 19 307 74 4 330 76 22 350 23 I 92 62 I 258 15 2 72 10 4 55 159 3 752 155 3 742 40 4 156 129 3 638 f Intro. 8 I 26 I in Table of Cases. Butler a. Bank, State Nat., 149 111. 575 s. c. 36 N. E. 1000 1894 Butler a. Johnson, 4 Stew. 35 N. J 1879 Butler a. Jones, 87 N. Y. 613 1882 Butterfield a. Harris 33 L. T. 659 1876 Butterfield v. Lathrop, 71 Pa. 225 1872 Butterworth a. Holdane, 5 Bosw. i N. Y 1859 Buzzard v. Bank, First Nat. of Greenville, 67 Tex. 83 s. c. 2 S. W. 54 1886 Byers v. Bourrett, 64 Cal. 73 1883 Byers a. Carson, 67 Iowa 606 s. c. 2; N. W. 826; 21 Rep. 232 188; Byers a. Dunlap, 67 N. W. 1067 Mich 1896 Byers v. Schluppe, 51 Ohio 300 s. c. 38 N. E. 117 1894 B. & M. R. R. V. Dick, 7 Neb, 24 1878 Cadet a. Levy, 17 S. & R. 126 Pa 1827 Cady V. Smith, 12 Neb. 628 s. c. 12 N. 95 1882 Gaboon a. Burgan, i Pennypacker 320 Pa 1881 Caldicott V. Griffiths, 8 Exch. 898 1853 Caldwell a. Gram, 5 Cow. 489 N. Y 1826 Caldwell v. Miller, 127 Pa. 442 s. c. 17 A. 983 1889 Caldwell V. Stileman, i Rawle 212 Pa 1829 Calkett V. Thomas, i Phila. 463 1853 Calkins v. Smith, 40 N. Y. 614 1872 Cameron v. Francisco, 26 Ohio St. 190 187; Cameron a. Tustin, 5 Wharton, 379 Pa 1840 Cammack v. Johnson, i Gr. Ch. 83 N. J 1839 Camp v. Southern B'k'g & Tract. Co., 25 S. E. 362 Ga 1896 Camp a. Williston, 9 Mont. 88 s. c. 22 P. 501 1889 Campbell v. Campbell, 3 Stew. 41; N. J 1879 Campbell a. Hagen, 78 Wis. 572 s.c. 47 N. W. 179... 1890 Campbell v. Steele, 11 Pa. 394 1849 Campbell a. Sullivan, 2 Hal. 271 N. Y 1829 Campbell a. Thomson, 5 W. & S. 16 1831 Canfield a. Parker, 37 Conn. 251 1870 Cannon a. Corbett, 4; P. 80 Kan i8g6 Carlisle v. Fenbrook, 57 Ind. 529 1877 Carnley a, Kemp, 3 Duer i N. Y 1853 xlix page 15 6 74 211 2 886 32 3 127 17 2 80 67 10 283 69 16 304 44 5 179 76 18 349 2CX) I 855 114 3 563 96 2 410 76 I 339 182 7 818 76 I 339 69 i8,b 305 16 2 77 190 I 837 191 2 838 SZ 212 179 I 808 117 5 592 171 I, a 782 215 4,1 901 134 10 671 76 24 351 181 4 8!3 136 3 682 116 14 582 104 5 466 84 3 375 138 I 686 36 5 141 60 2 253 135 I 678 32 2 125 135 2 678 Table of Cases. 2 n. page Carothers v. Alexander, 74 Tex. 309 s. c. 12 S. W. 4 1889 10 15 62 Carpenter v. Greenop, 74 Mich. 664 s. c. 42 N. W. 276 1889 213 Carriere a. Tua, 117 U. S. R. 201 1886 179 Carson v. Byers, 67 Iowa 606 s. c. 35 N. W. 826; 21 Rep. 232 1885 200 Carson v. Carson, 25 Weekly Notes, 358 Pa. C. P.. .1890 94 Carter v. Lipsey, 70 Ga. 417 1883 39 Carter V. McClure, 38 S. W. 585 Tenn 1897 69 Carver a. Waugh, 2 H. Bl. 235 i793 57 Carvick V. Vickey, Douglas 653 1781 6 Cary a. Goodbar, 16 Fed. Rep. 316 1882 | ^ Gary v. Williams, i Duer 667 N. Y 1853 170 Case a. Deckard, 5 Watts. 22 1836 135 Cassels v. Stewart, 6 App. Cas. 64 1881 176 Cassidy v. Hall, 97 N. Y. 159 1884 64 Castle a. Taylor, 42 Cal. 367 1871 15 Catanach a. Stanbridge, 83 Pa. 368 1877 125 Cavett a. Lauffer, 87 Pa. 479 1878 | ^ Caviness V. Black, 33 S. W. 712 Tex 189; 114 Chadwick V. Felt, 35 Pa. 305 i860 10 Chafee a. Slutts, 48 Wis. 617 1880 81 f '^ Chaffaix V. Lafitte, 30 La. An. 631 1878 | 57 I 61 Chalmers v. Chalmers, 8i Cal. 81 s. c. 22 P. 39;.... 1889 91 Chamberfort v. Chapman, 19 Q. B. D. 229 1887 77 Chamberlain v. Forbes, 3 S. C. 277 1874 18 Chamberlain v. Sawyers, 32 S. W..47; Ky 1895 30 Chambers v. Clearwater, i Keyes 310 N. Y 1864 143 Chambers a. Davenport Mills Co., 44 N. E. 1 109 Ind 1896 126 Champion v. Bostwick, | " ^end. 571 1 ,g g^ 1 18 Wend. 182 i ' Champion a. Flanigan, i Gr. Ch. 51 N. J 1838 68 Chaney a. Hoxie, 143 Mass. 592 1887 214 Chapin v. Clemitson, i Barb. 311 N. Y 1847 81 Chaplain a. Renton, i Stock. 62 N. J 1852 185 Chapman a. Chambefort, 19 Q. B. D. 229 1887 77 Chapman a. Everitt, 6 Conn. 247 1827 19 I 2 893 3 809 I 855 i,i 403 2 154 II 303 4 233 I 41 i,b 519 4 537 2,a 779 2 678 I 797 2 269 I 72 9 622 3 49 2 571 8 567 5 55 I 366 3 232 6,c 236 4 255 4 396 3 359 2 82 I u8 4 707 I 627 1/ 262 l8,a 306 2,6 897 3 367 2 826 3 359 6 86 Table of Cases. ? n. page Chapman V.Hughes, I '°4Cal. 302 s.c. 37 p. 1048 jjg •■ 38 P. 109 J Chapman V. Thomas, 4 Keyes 210 N. Y 1868 205 2 866 Chase a. Buhl Iron Works, 55 Mich. 436 s. c. 20 N. W. 827 1884 134 8,d 670 Chase a. Shaw, 77 Mich. 436 s. c. 43 N. W. 276 1889 211 i 885 Chase a. Silverman, go 111. 37 1878 88 3 383 Chattanooga Marble & Stone Co., a. Ala. Marble & Stone Co., 37 S.W. 1004 Tenn i8g6 114 8, a 567 Cheap V. Cramond, 4 B. & Al. 663 1821 57 4 233 Cheeseborough a. Buchanan, 2 Duer 238 N. Y 1856 215 2 goo Cheeseman v. Sturges, 6 Bosw. 520 N. Y i860 | '^° 4 ^54 1. 213 I 892 Cheney v. Newberry, 67 Cal. 126 s. c. 7 P. 445 1885 76 18 349 Chester v. Dickerson, 54 N. Y. 1 1873 10 11 60 Chevelier a. Petit, 2 Beas. 181 N. J i860 177 7, a 804 Chidsey a. Siegel, 28 Pa. 279 1857 109 9,0 533 Childs a. Harvey, 28 Ohio St. 319 1876 64 4/ 272 Childs a. Hasbrouck, 3 Bosw. 105 N. Y 1858 32 i 126 Childsa. Voorhis, 17 N. Y. 355 1858 86 i 378 C 39 I 154 Chisholm a. Laird, 30 Scottish Jur. 584 1858 ] 42 i 161 l 42 3,« 165 Christl a. Fitzgerald, 5 C. E. Gr. 90 N. J 1869 183 7 822 *Christman v. Baurichter, 10 Phila. R. 11; 1874 35 4 139 Chuck, ex parte, 8 Bing, 469 1832 | ^l , ^^° i. 58 i,b 239 Church (M. E.) a. Bullitt, 26 Pa. 108 1856 109 g,c 534 Church a. Taft, 162 Mass. 527 s. c. | ^^ N- E. 283 \ ^^^ ^^ ^ ^^^ 141 IN. b. 67 J Church a. Tassey, 6 W. & S. 465 Pa 1843 165 7 763 Claflin V. Ambrose, 37 Fla. 78 s. c. ig S. 628 i8g6 108 4 501 Claflin V. Sattler, 43 Minn. 439 s. c. 43 N. W. 482. ..1890 13; 6 680 Clark a. Brown, 24 Pa. 469 1850 182 2 816 Clark V. Cullen, 9 Q. B. D. 355 1882 77 2,« 357 '292 1872 26 5 112 292 1872 44 I 174 276 1872 54 3,a 221 2g6 1872 54 4 221 2g5 1872 5; 2 225 2g7 1872 58 2 240 341 1872 58 3 241 276 1872 62 I 258 li Clark a. Eastman, 53 N. H. Table of Cases. ? n. page Clark V. Gushing, 52 Cal. 617 1878 106 8 491 Clark a. Jones, 42 Cal. 180 1871 15 i 72 Clark V. Jones, 8 Ala. 127 s. c. 6 S. 362 1889 24 i loi Clark a. Woodward, 30 Kan. 76 1889 , 44 4 176 Clarke v. McAuliffe, 81 Wis. 104 s. c. 51 N. W. 83. ..1892 10 8 57 Clarke V. Mills, 36 Kan. 393 s. c. 13 P. 569 1887 162 4 758 Clarke V. Pierce, 42 Mich. 157 s. c. 17 N. 780 1889 212 3 8go Clarke a. Rawlinson, 15 M. & W. 292 1846 59 2,h 246 Clarke's Appeal 107 Pa. 436 1884 151 i 729 Clark's Appeal, 72 Pa. 142 1872 ( ^^ j. "^ 1 1 14 6 566 Clay V. Cottrell, 18 Pa. 408 1852 132 2 655 Clearwater a. Chambers, i Keyes 310 N. Y 1864 143 4 707 Cleather V. Twisden, 28 Ch. D. 340 1884 144 i 710 Clement v. Clement, 79 Wis. 599 s. c. 35 N. W. 17.. 1887 179 i 808 Clements a. Wharton, 3 Del. Ch. 239 1868 40 4 156 Clemitson a. Chapin, i Barb. 311 N. Y 1847 81 3 367 Cleveland a. McGregor, 5 Wend. 475 N. Y 1830 ( 44 7 I79 i. 76 25 351 Cleveland a. Reynolds, 4 Cowen 282 182; 11 2 64 Cleveland a. Society Perun, 43 O. St. 481 1885 24 3 102 Clifton a. Fox, 6 Bing. 776 1830 23 2 92 C. M. & St. P. R. Co. a. Gleason, 82 Iowa 745 s. c. 43 N. W. 517 1889 155 3 743 Cobb a. Wilson, 2 Stew. 361 N. J., E. & A 1878 54 i 220 Cobeau a. Schriver, 4 Watts. 130 Pa 1835 57 4 235 *Cochran v. Arnold, 58 Pa. 399 1868 24 5 103 Cochran V. Bartle, 91 Mo. 636 s. c. 3 S. W. 854 1887 48 3,a 193 Cochran a. Finney, I W. & S. 112 Pa 1841 87 i 380 Cochran a. Newell, 41 Minn. 374 s. c. 43 N. W. 84. ..1889 155 3 744 Cockroft a. Geery, i J. & Sp. 146 N. Y 1871 ( "4 " '68 1 171 S,a 784 Codding, in re, 9 Fed. R. 849 1881 n; 6 571 Coddington a. Hampton, I Stew. 557 N. Y 1887 137 5 685 Coddingtonv.Idell, I^Stew. 504N.J ,878 2154 901 I. 3 Stew. 540 N. J 1879 214 4 894 Coddington v. Toppan, II C. E. Gr. 141 N. J 1875 loi i 434 Coe a. Everett, ; Denio 180 N. Y 1848 / 57 4 234 I 58 i,« 239 Cohen v. N. Y. Mutual Life Insurance Co., 50N. Y.611 1872 16 2 7; Cohen a. Reuben, 48 Cal. 583 1874 172 2 788 Coit a. Mauney, 86 N. C. 463 1882 52 210 lii Table of Cases. Colbeck & Co., in re, Buck 48 1818 Cole V. Birdsall, 2 Stock Ch. 63 N. J 1854 Cole a. Pease, 53 Conn. 53 1885 Cole a. Pope, 55 N. Y. 124 1873 Cole V. Reynolds, 18 N. Y. 74 T858 Colehoura. Roby, 135 III. 300 s. c. 25 N. E. 777 1890 Coleman a. Halstead, 143 Pa. 352 s. c. 22 A. 977 1891 Coles V. Coles, 15 Johns. 159 1818 Coles a. Newsome, 2 Camp. 617 1811 Colgrove a. Fallmadge, 6 Bosw. 289 N. Y i860 Colhoun V. Snider, 6 Binney 13; Pa 1813 Collender V. Phelan, 79 N. Y. 366 1879 Collier v. Hanna, 71 Md. 253 s. c. 17 A. 1017 1889 CoUingwood a. Lampton, 4 Mod. 315 1695 Collins' Appeal, 107 Pa. 590 1885 Collins a. Crawshay, 15 Ves....|^'^| 1808 Collins V. Smith, 78 Pa. 423 1875 Collins a. Whitaker, 34 Minn. 299 s. c. 2; N. W. 622 1885 Collumb V. Read, 24 N. Y. 505 1862 Colt a. Demmy, 3 Sandf. 284 N. Y 1850 Columbus Machine & Mfg Co. a. Reber, 12 Ohio St. 175 1861 Colvin a. Reppert, 48 Pa. 248 1864 Colwell V. Bank, Weybossett Nat. 16 R. 1. 288 s. c. i; A. 80; 17 A. 913 1889 Colwell a. Crocker, 46 N. Y. 212 1871 Colwell a. Farrell i Vr. 123 N. J 1862 Commonwealth a. Hare, 92 Pa. 141 187; Commonwealth v. Mateer, 16 S. & R. 419 Pa 1827 Commonwealth v. Vanderslice, 8 S. & R. 452 1822 Commonwealth a. Wetherill, 17 W. N. 104 Pa 1885 Conklin v. Barton, 43 Barb. 435 N. Y 1864 liii i n. page r 57 234 L 58 i,d 239 r loi 434 ^184 82; 14 70 86 379 165 764 155 743 44 5i» 179 ' 13 68 113 555 n6 578 -162 757 180 811 152 731 113 556 215 9CO 108 6 507 10; 8 481 175 3 795 176 2 797 43 a 168 99 2 418 48 2 192 143 6 707 113 6 556 116 5 579 117 ^,h 591 70 I, a 314 182 I 816 130 8 647 131 I 650 100 II 330 106 9 491 109 9,,h 531 89 I 388 105 8,a 481 105 8 481 109 S,d 530 69 5 298 Table of Cases. Conklin a. Tremper, 44 N. Y. 61 1870 Conn a. Gardiner, 34 Ohio St. 187 1877 Connon v. Dunlop, 64 Ga. 680 1880 Conroy a. Hargrave, 4 C. E. Gr. 281 N. J 1868 Consequa v. Willing, i Peters 301 i8i6 Converse a. Whitcomb, ng IVlass. 38 1875 Cook a. Jessup, i Hal. 434 N. J 1798 Cook V. Penrhyn Slate Co., 36 Ohio 135 1880 Cook a. Wrenshall, 7 Watts. 464 Pa 1838 Cookingham v. Tasker, 2 Keyes454 N. Y 1866 Coope V. Eyre, i H. Bl. 39 1788 Cooper V. Adams, 2 Ch. 561 1894 Cooper a. Dixon, 2 Wilson 40 1768 Cooper V. Prichard, 75 L. T. 91, 95 1883 Cooper's Appeal, 25 Pa. 262 1856 Coover's Appeal, 29 Pa. 9 1857 Corbett v. Cannon, 45 P. 80 Kan 1896 Corning a. Heartt, 3 Paige, 566 N. Y 1832 Corwin v. Suydam, 24 Ohio St. 209 1873 Corryell a. Taylor, 12 S. & R. 243 Pa 1824 Cosgrove V. Goldsmid, 7 H. L. 785 1859 Cothran v. Marmaduke, 60 Tex. 370, 1883 Cotter V. Bettner, i Bosw. 490 N. Y 1857 Cottrell a. Clay, i8 Pa. 408 1852 *Coulter a. Stewart, 12 S. & R. 252 Pa 1825 Countess of Jersey et al. a. Bishop, 2 Drewry 143.... 1854 Courson v. Parker, 39 W. Va. 521 s. c. 293 S. E. 583 1894 44 2 175 Courtney v. Neimeyer, 33 Neb. 796 s. c. ;i N. W. 237 1892 Court of Wards a. Mollwo, L. R. 4 P. C. 419 1872 Couture a. Pelletier, 148 Mass. 269 s. c. 19 N. E. 400 1889 Cowan V. Kinney, 33 Ohio St. 442 1878 Cowart V. Perrine, 3 C. E. Gr. 457 N. J 1867 Cox V. Hickman, 8 H. L. 268 i86o Cox a. Keegan, 116 Mass. 289 1874 Cox V. McBurney, 2 Sandf. 561 N. Y 1849 Cox a. Munster, 10 Ap. Cas. 680 1885 Cox V. Peters, 3 Beas. 39 N. J i860 !iv ? n. page 100 8 428 ,105 2 478 215 4,u qo2 107 4 498 59 2, a 244 85 2 377 31 4 123 220 I 914 180 3,« 811 134 6 667 76 13 345 7 I 43 49 6 198 103 4 462 107 3 497 63 2 267 144 3 710 109 8/ 531 109 8 526 135 I 678 220 I 914 171 5." 78; 124 I, a 616 210 6 882 59 3 251 15 5 73 132 2 655 134 7 667 144 2 710 102 I,* 444 64 4,c 271 140 4 697 69 l8,a 306 2l8 I gio 59 2,1 249 141 2 70I 116 8 580 77 3 358 184 I 825 Table of Cases, Cragin a. Logan, 27 La. An. 352 187; Craig V. Hulschitzer, 5 Vr. 363 N. J 1871 Craig a. Murphy, 76 Micti. 15; s. c. 42 N.W. 1097. ..1889 Craig V. Smith, 10 Colo. 220 s. c. i; P. 337 1887 Cramond v. Banl< of U. S. i Binn. 64 Pa 1803 Cramond a. Cheap, 4 B. & Al. 663 1821 *Crandall V. Denny, Pen. 137 1806 Crary v. Williams, 2 Ohio 65 182; Craven a. Bentley, 18 Beavan, 75 1853 Crawford a. Bush, 9 Phila. 392 U. S. C. C 1872 Crawford a. Eager, 76 N. Y. 79 1879 Crawford a. Tiffany, i McCart. Ch. 278 N. J 1862 Crawshay V. Collins, 15 Ves-I^"^! i8c8 Creditors a. Sherwood, 42 La. 103 s. c. i S. 79 1890 *Credy v. Vanneman, Pen. 870 i8n Cribb V. Morse, 77 Wis. 322 s. c. 46 N. W. 126 1890 Critchfield v. Porter, 3 Ohio 519 1828 Crites v. Wilkinson, 65 Cal. 559 s. c. 4 P. 567 1884 Crocker v. Colwell, 46 N. Y. 212 1871 Crosby a. Parsons, 5 Esp. 199 1805 Cross a. Daniel, 3 Ves. 277 179; Cross V. Jackson, 8 Hill 478 N. Y 1843 Cross a. Trowbridge, 117 111. 109 s. c. 7 N. E. 347 1886 Crowell a. Bank, N. Y. Nat. Exch. 177 Pa. 313 1896 Cubbison a. McCowin, 72 Pa. 358 1872 Cullen a. Clark, 9 Q. B.D. 355 1882 Culley V. Edwards, 44 Ark. 423 1884 Cumming's Appeal, 25 Pa. 268 1855 Cummings v. Mills, i Daly 520 N. Y 1866 Cummingsv. Morris, 25 N. Y. 62; 1862 Cummings a. Peacock, 46 Pa. 434 1864 Cummins a. Pond, 50 Conn. 372 1882 Cumpston a. McNair, i Wend. 457 N. Y 1828 Cunningham v. Littlefield, i Edw. Ch. 104 N. Y 1831 Currier v. Robinson, 61 Vt. 196 s. c. 18 A. 147, 1889 Curry v. Fowler, 87 N. Y. 33 1881 Curry V. White, 51 Cal. 185 1885 Curtis V. Woodward, 58 Wis. 499 1883 Cushing a. Bank, National, 53 Vt. 321 1881 Gushing a. Clark, 52 Cal. 617 1878 Iv § n. pag. 78 2,ij 362 171 2,a 782 62 I 259 95 I 405 134 16 673 57 4 233 76 2 340 76 II 345 155 3 742 129 3 638 66 6 278 11; 14 573 1 43 a 168 I 99 2 418 37 3 150 76 2 340 104 8 469 123 I, a 612 118 3 596 131 I 6;o 48 4 194 109 5/ 525 76 6 341 105 9,a 482 180 4 811 f 182 4 1 187 4 817 830 77 2,c 357 64 2 270 115 7 571 61 3 255 160 5 754 156 2 747 59 2,6 244 7 4 45 162 3 758 76 II, & 345 64 4,« 272 8i 2 366 197 I 848 202 I 858 106 8 491 Table of Cases. ? n. page Cushman v. Bailey, i Hill 526 N. Y 1841 58 i,/ 235 Cutbush V. Cutbush, I Beav. 185 1838 74 9 331 Dakina. Bank, 24Wend. 411 N. Y 1840 ( "4 6 179 I 76 23 351 Dalton a. Romero, 11 Ariz. 863 1886 12 i 65 Daly a. Randolph, I C. E. Gr. 313 N. J 186; | '°7 z 497 1.197 3 849 Dana a. Schenkle, 118 Mass. 237 1875 192 3 840 Dana V. Stearns, 3 Cush. 372 Mass 1849 I4i 4 7°' Daniel V. Cross, 3 Ves. 277 1795 109 5,/ 525 Darbyv.Gilligan,|33W.Va.246s.c.ioS.E.4oo..i889 ,,3 6 505 I37W. Va. 59 s. c. 16S.E. 507..1892 Davenport a. Wild, 48 N. J. Law, 129 s. c. 7 A. 29;. .1886 73 i 324 Davenport Mills Co. v. Chambers, 44 N. E. 1109 Ind 1896 126 I 627 Davey a. Weisz, 28 Neb. ;66 s. c. 44 N.W. 470 1890 44 i,a 171 Davidson a. Golden State etc. Iron Works, 73 Cal 389 s. c. 15 P. 20 1887 175 4 796 Davidson v. Holden, 55 Conn. 103 s. c. 10 A. 515. ...1887 69 11 302 Davis V. Davis, I Ch. 393 1894 57 6,3 236 Davis V. Howell, 20 Am. Law. Reg. N.S. 461 N. J.. .1861 iii 8 544 Davis, ex parte, 4 DeG. J. & S. 523 1863 i8 3 82 Davis V. Keyes, 38 N. Y. 94 i868 179 3 809 Davis a. Lindley, 6 Mont. 453 s. c. 13 P. 118 1887 108 i 500 Davis a. Marsh, 33 Kan. 326 s. c. 6 P. 612 1885 10 11 60 Davis a. Moore, 11 Ch. D. 261 1879 45 183 Davis V. Morris, 10 Q. B. D. 436 1883 77 2,« 357 Davis V. Newkirk, ; Denio 92 N. Y 1847 126 g 630 Davis a. Quin, 78 Pa. 15 1875 43 39 Davis a. Salmon, 4 Binn. 375 Pa 1812 121 2, a 607 Davis V. Smith, 82 Ala. 198 s. c. 2 S. 897 1887 116 i 578 Dawbarn a. Baker, ig Grant's Ch. 113 (Up Can). ...1872 196 3 847 Dawes a. Hoare, i Douglas 371 1780 { ^ ^ ^^ >■ 49 o ig8 Day a. Goldthwaite, i4g Mass. 185 s. c. 21 N. E. 359 1889 211 3,a 886 Day a. State, 3 Ind. App. 155 s. c. 29 N. E. 436 i8gi 104 g 470 Dayton V. Wilkes, 5 Bow. 655 N. Y i85g 151 2 72g Deal V. Bogue, 20 Pa. 228 1853 loo 7 428 Dean V. Harris, 33 L. T. 65g 1876 17 2 80 Dean V. McDowell, 8 Ch. D. 345 1877 i55 7 745 Ivi Table of Cases, Dean a. Wild, 3 Allen 579 Mass 1862 Dearborn a. Bank of Brooklyn City, 20 N. Y. 244. ..1859 Deckard v. Case, 5 Watts. 22 Pa 1836 Deems a. Lafond, 81 N. Y. 507 1880 Defer a. Weber, 8 Howard Pr. 502 N. Y 1853 Deford V. Reynolds, 36 Pa. 325 i860 De Graum v. Jones, 23 Fla. 56 s. c. 6 S. 925 1887 Delaney V. Root, gg Mass. 546 1868 Delhasse, ex parte, 7 Ch. D. ;ii 1878 Delmonico v. Guillaume, 2 Sandf. Ch. 366 N. Y 1845 Demmy v. Colt, 3 Sand. 284 N. Y i8;o Dengler's Appeal, 125 Pa. 12 s. c. 17 A. 184 i88g Denithone V. Hook, 112 Pa. 240 1886 * Denny a. Crandall, Pen. 137 1806 Denton v. Noyes, 6 Johns. 2g; N. Y 1810 Dericson a. Wilcox, 168 Pa. 333 s. c. 31 A. 108 1895 Deveau v. Fowler, 2 Paige Ch. 400 N. Y 1831 De Voin v. De Voin, 76 Wis. 66 s. c. 44 N. W. 839.. 1890 Devoney v. Mahoney, 8 C. E. Gr. 247 N. J 1872 Dexter a. Jones, 130 Mass. 380 1881 Dick a. B. & M. R. R., 7 Neb. 24 1878 Dick V. Williams. 130 Pa. 41 s. c. 18 A. 6i; i88g Dickens a. Bradbury, 27 Beav. 53 1859 Dickerson a. Chester, 54 N. Y. i 1873 Dickey v. Allen, i Gr. Ch. 40 N. J 1838 Dickinson v. Valpy, 10 B. & C. 128 1829 Dickson v. Dryden, 66 N. W. 148 Iowa i8g6 Dillon V. Horn, ; How. Pr. 3; N. Y i8;o Dillon a. Plunkett, 4 Houston 338 Del 1875 Dingman V. Amsink, 77 Pa. 114, 118 1874 Dingman a. Bulkley, 11 Barb. 28g N. Y 1851 DItmars a. Large, 12 C. E. Gr. 283 N. J 1876 Dixon V. Cooper, 3 Wilson 40 1768 Dob V. Halsey, 16 Johns. 34 N. Y 1819 Dobbins V. Merrall, 169 Pa. 480 s. c. 32 A. 578 1895 Docker V. Somes, 2 Mylne & Keene 653 1834 Dodd V. Bishop, 50 La. An. 1178 1878 Dodd V. Tarr, 116 Mass. 287 1874 Ivii i n. page 174 4 793 69 8 301 135 2 678 16 I 76 177 2 803 76 Il,a 344 142 I 703 12 I 66 50 3 201 114 3 563 116 5 579 117 3,A 591 log 8,; 532 69 4 298 76 2 340 123 l,c 613 72 2 322 log 7 526 ii;2 2 731 218 4,i 911 28 3 116 114 9 567 115 15 574 100 II 430 76 I 339 12; 13 624 214 6 899 10 II 60 220 2 915 23 4 93 188 I 832 193 I 841 57 4 234 88 5,6 384 70 2 315 213 8 895 63 2 267 51 4 207 50 l,a 200 43 I 168 69 3 298 160 3 754 Table of Cases. ? n. page Dodson V. Dodson, 26 Or. 349 s. c. 37 P. 542 1894 10 15 61 Dollinsv. Pollock, 89 Ala. 351 s. c. 7 S. 904 1889 44 2 17; Doner V. Stauffer, I Pa. ig8, 203-4 1829 | '°^ ^ '^'^ Donnally V. Ryan, 41 Pa. 306 1861 38 i 152 Doughty V. Doughty, 3 Hal. Ch. 227 N. J 1848 184 3 825 Downey V. F. & M. Bank, 13 S. & R. 288 Pa 1825 81 4 367 Dowse V. Gorton, A. C. 190 1891 73 3 32; Drake a. Holland, 29 Ohio St. 441 1876 135 3 679 Dreibeltis a. Kutz, 126 Pa. 335 s. c. 17 A. 609 i88g 162 3 758 Drennen V. House, 41 Pa. 30 1861 / ^ I 1 125" 2 620 Drennena. London Assur. Co.,/ "^H'^' ^^ '!!l I 23 3 93 1 116 U. S. 461 1886 > Drexel a. Sparhawk, I W. N. 560 Pa 1875 168 3 774 Dreyfus v. Bank, Union Nat., 45 N. E. 4o8,Ill 1896 130 7 647 Drivera. Pooley, 5 Ch. D.458 1876 { ^° ^ ^60 Dry V. Boswell, I Camp. 329 1818 M"* "* '''^ ■' < f J I 62 i,« 259 Dryden a. Dickson, 66 N. W. 140 Iowa 1896 188 i 832 Dubois Appeal, 38 Pa. 231 1861 120 i 605 Dubos V. Hoover, 25 Fla. 720 s. c. 6 S. 788 1889 54 5 222 Dublin Warehouse Co. a. Benson, 25 S.E. 64; Ga...i896 143 3 707 Duckworth a. Gouthwaite, 12 East. 421 1810 19 5 86 Duff V. Baker, 78 Iowa, 642 s. c. 43 N. W. 463 1889 12 2 67 Duff V. Maguire, 107 JWass. 87 1871 16; 6 763 Duncan a. Pa. R. R., in Pa. 352 i886 24 n 104 Duncan a. Wadsworth, 45 N. E. 132 111 1896 24 i 102 Dungan v. Miller, 4 C. E. Gr. 219 N. J 1868 134 7,6 668 Dunhamv. Jarvis, 8Bart. 88N. Y 1854 -f ^^ ^ ^^° 1 156 2 747 Dunham V. Loverock, 158 Pa. 197 s. c. 27 A. 990 1893 13 i 67 Dunham V. Presby 120 Mass. 285 1876 216 2 904 Dunham V. Rappleyea, I Harr. 75 N.J 1837 i6i 3 756 Dunham v. Rogers, i Pa. 255 1845 6° i 253 Dunlap V. Byers, 67 N. W. 1067 Mich 1896 114 3 563 Dunlap V. Watson, 124 Mass. 305 1878 194 i 839 Dunlop a. Connon, 64 Ga. 680 1880 107 4 498 Dunn V. Jaffray, 36 Kan. 408 s. c. 13 P. 781 1887 134 12 672 Durantv.Arbendroth,/^ l^-^- '^^ i877 1 ,51 I 97 N. Y. 132 1884 J " " ' Iviii Table of Cases. Durbin v. Barber, 34 Ohio 311 1846 *Durborrow a. Everly, 8 Phila. R. 93 1871 Durborrow's Appeal, 84 Pa. 404 1877 Durfey a. Jackson Bank, 72 Miss. 971 s. c. 18 S. 456 i8go Duryea v. Burt, 28 Cal. 569 1865 Dutton V. Brown, 31 Mich. 182 1875 Dwinell a. Sanborn, 13; Mass. 236 1883 Dyer v. Morse, 10 Wash. 492 s. c. 39 P. 138 1895 Dyke v. Brewer, 2 Car. & K. 828 1849 Eager v. Crawford, 76 N. Y. 97 1879 Earon v. Mackey, 106 Pa. 452 1884 Eastman v. Clark, 53 N. H. '292. 292. 276. 296. 295., 297. 341- 276., Edmanson v. Thompson, 8 Jurist N. S. Edmonds, ex parte, 4 D. F. & J. 488.... Edmunds v. Bushnell, L. R. i Q. B. 96. 23;., ..1861 .1862 .186; Edmunds, ex parte, 11 D. F. & J. 488 1862 Edson a. Smarte, i Lev. 30 1661 Edwards a. Culley, 44 Ark. 423 1884 *Edwards a. Bailey, n6 Eng. C. L. Rep. 775 1866 Edwards, in re, 122 Mo. 426 s. c. 25 S. W. 904 1893 Edwards V. Remington, ;i Wis. 336 1881 Edwards v. Tracy, 62 Pa. 374 1869 Egberts a. Wood, 3 Paige Ch. 517 N. Y 1832 Eldred a. Mason, 6 Wall. 231 1879 Eidred a. Robert, 73 Cal. 394 s. c. i; P. 16 1887 Eldridge v. Froost, 6 Rob. 518 N. Y 1866 lix 217 34 100 108 15 140 210 114 148 .1872 .1872 .1872 .1872 .1872 .1872 .1872 .1872 n. 4 2 9,c 5 2 4,b 4 I 5 66 6 68 5 26 5 44 I,/ 54 3.<» 221 Eaton a. Robson, i T. R. 72 1778 Eaton's Appeal, 66 Pa. 483 1870 Ebbert's Appeal, 70 Pa. 79 1871 Eberhardt a. Roberts, i Kay, 148 1853 Eckharta. Burckle, 3 Comst. 132 s. c. i Denio 1849 | 54 55 58 88 62 123 15 53 17 2 209 2 f Intro. I 26 I 75 10; 64 90 104 96 67 12 109 6 82 3 116 7 67 5 page 908 134 429 504 72 689 881 562 721 278 290 112 174 221 228 240 241 258 612 8go "7 3,g 590 72 214 59 2,a 244 79 875 8 in 335 481 270 391 465 411 284 525 369 580 280 Table of Cases. Eldridge v. Smith, 144 Mass. 3; 1887 Elgie V. Webster, 5 M. & W. 518 1839 Elgin Watch Co. v. Meyer, 30 Fed. 659 Mo 1887 Eliot a. Hostcinson, 62 Pa. 393 1869 Elkins a. Waland, i Starlc 272 1816 Elliott a. Prentice, 74 Ga. 154 1883 Ellis V. Allen, 80 Ala. 515 s. c. 2 S. 676 1887 Ellis V. Ward, 21 W. R. 100 1872 Ellis a. Wells, 68 Cal. 243 s. c. 9 P. 80 1885 Elston a. Murray, 8 C. E. Gr. 127 N. J 1872 Elton V. Perkenpine, i E. Rep. 637 Pa 1855 Elworthy a. Teed, 14 East 210 1811 Emerick v. Moir, 124 Pa. 489 1889 Emerson a. Smith, 43 Pa. 456 1862 Emery a. Van Rensselear, 9 How. Pr. 135 N. Y 1854 Emery v. Wilson, 79 N. Y. 78 1879 Enderby a. Gilpin, 5 B. & Aid. 955 1822 Engel V. Bailey, 82 Me. 118 s. c. 19 A. 106 1889 Englis V. Furnis, 4 E. D. Smith, 587 N. Y 1855 English a. Hotchkiss, 4 Hun. 369 N. Y 1875 English V. Milligan, 27 Neb.- 326 s. c. 43 N. W. 120.. 1889 Eng. & Ir. Ch. & Univ. Ass. Society, in re, I Hem. & M. 85 1863 Ennis a. Fries, 132 Pa. ig; s. c. 19 A. 59 1890 Ensign v. Wands, i Johns Cas. 171 N. Y 1799 Epping a. Flaurnoy, 68 Ga. 707 1882 Epstein a. Fader, 6g Cal. 456 s. c. 10 P. 785 1886 Erb V. West, ig S.829 Miss i8g6 Erb's Estate, i Pearson 98 Pa 1856 Erhard a. Zimmerman, 83 N. Y. 74 1880 Erie Dime Sav. & Loan Co. a. Kepler, loi Pa. 602. ..1882 Erie R. R. a. Wood, 72 N. Y. 196 1878 Erikson a. Hunt, 57 Mich. 330 s. c. 23 N. W. 832 188; Erwin's Appeal, 39 Pa. 535 1861 Ettenborough v. Bishop, 11 C. E. Gr. 262 N. J 1875 Eureka Mfg. Co. a. Flint, 55 Vt. 66g 1881 Evans a. Feucht, 52 Ark. 556 s. c. 13 S. W. 217 1890 Evans v. Hadfield, 68 N. W. 468 Wis i8g6 Evans a. Henry, 64 N. W. 687 Iowa 189; Evans a. Johnson, 7 M. & G. 249 1844 Ix ? n. page 134 15 673 48 4 194 135 I 677 86 I 378 62 I./ 262 218 2 gio 118 2 596 22 3 91 136 2 682 217 8 909 154 3 738 76 9 342 34 3 134 109 8./ 532 f lOI '.185 I 434 I 826 219 2 913 213 3 894 123 3 614 167 I 769 17 4 80 220 3,* gi6 59 2,a 243 154 I 737 7 6 46 69 l8,a 307 76 I 338 104 io,a 472 117 2 590 76 16 347 "5 3 571 76 17,6 348 51 3 207 /n5 •■117 9 572 4,« 591 u6 10 581 62 I 258 196 4 847 70 2 314 68 3 289 100 I 424 Table of Cases. ? n. page Evans V. Meylert, ig Pa. 402 1862 123 i,d 613 Everett v. Coe, 5 Denio 180 N. Y 1848 57 4 234 Everhart's Appeal, 106 Pa. 349 1884 10 10 ;g Everitt v. Chapman, 6 Conn. 247 1827 19 6 86 Everitt v. Watts, 10 Paige 85 N. Y 1843 / 69 21 309 1 142 7 704 *Everly v. Durborrow, 8 Phila. R. 93 1871 34 2 134 Ewing v. Blight, I Pittsburgh 275 Pa 1856 59 2,* 244 Eyre a. Coope, I H. Bl. 39 1788/ ^ ' ^^ , \ 49 6 198 Eyrich v. Capital State Bank, 67 Miss. 60 s. c. 6S. 615 1889 134 5,J 666 Eyton a. Pott, 3 C. B. 32 1846 63 i 267 Fairchild v. Falrchild, 64 N. Y. 471 1876/ '^ "* ^ 1 116 4,b ,579 Fairlamb V. Percy, 3 P. & M. 217 1875 74 11 333 Fairman a. Wallace, 4 Watts. 378 Pa 1835/^5 3 407 I-153 2 734 Falconer a. Freeman, 12 J. & S. | '^^ ^- ^ '^^8 "I & ,q ,08 Fallmadge a. Colgrove, 6Bosw. 289N.Y ...i860 152 i 731 Fanchon V. Bibb Furnace Co., 2 S. 268 Ala 1887 124 i,* 617 Farnsworth v. Boardman, 131 Mass. 115 1881 37 3, a 149 Farr v. Johnson, 25 111 522 1861 36 6 141 Farr a. Osburn, 42 Mich. 134 1879 76 9 343 Farrell v. Colwell, i Vr. 123 N. J 1862 / ""^ " ^30 106 9 491 Farrell a. Morgan, 58 Conn. 413 s. c. 20 A. 614 1890 45 184 Farringtona. r 15 Stew. 353 N. J 188; 1 j ^^^ Harrison, 1 44 N.J. Eq. 233 s. c. 10 A. 105... 1887 > Farrington a. Purple, 119 Ind, 164 s. c. 21 N. E. 453..1889 104 10 471 Farris a. Hundley, I ■? S. W. 392 Mo.... 1850 1 ■^ I103M0. 78 s. c. 15S.W. 312...1891 i Faulkner v. Hendy, 79 Cal. 265 s. c. 21 P. 754 1889 211 i,a 885 Faust V. Smith, 3 Colo. App. 505 s. c. 34 P. 261 1893 44 i,d 172 Feder v. Epstein, 69 Cal. 456 s. c. 10 P. 785 1886 76 i 338 Feigley v. Sponeberger, 5 W. & S. 564 Pa 1843 156 i 747 Felta. Chadwick, 3; Pa. 305 i860 10 5 55 Felton a. Smith, 43 N. Y. 418 1870 134 5,ft 666 Fenbrook a. Carlisle, 57 Ind. 529 1877 32 2 125 Ixi Table of Cases. 2 n. page Fendrick a. Kaiser, 98 Pa. 528 1881 133 i 658 Ferguson v. Millender, 32 W. Va. 30 s. c. g S. E. 38 1889 94 1,6 403 Ferguson V. Wright, 61 Pa. 258 1869 157 i 749 Ferrell a. Orr, 68 Tex. 638 s. c. 5 S. W. 490 1887 136 i 682 1-109 i,c 520 Person V. Monroe, I Foster, 462 N. H 1850 ■! no 4 537 1-199 3 853 Fessler's Appeal, 82 Pa. i;o 1876 158 i 750 Fettretch V. Armstrong, 5 Rob. 339 N. Y 1868 182 5 817 Feucht V. Evans, 52 Ark. 556 s. c. 13 S. W. 217 1890 196 4 847 Fichtera. Wilson, 3 Stock. Ch. 71 N. J 185; 177 7.6 804 Fichthorn V. Boyer, 5 Watts. 159 1836 139 6 693 Fielden V. Lahens, 9 Bosw. 436 N. Y 1862 129 i 637 Filley V. Phelps 18 Conn. 294 1847 151 3 729 Finnegan a. Milwaukee Harvester Co., 43 Minn. 83 s. c. 45 N. W.9 1880 44 i,e ,172 Finney V. Cochran, I W. & S. 112 Pa 1841 87 i 380 Firemen's Insurance Co. v. Floss, 67 Md. 403 s. c. 10 A. 139 1887 148 4 721 Fish V. Henarie, 14 Or. 29 s. c. 13 P. 193 1886 91 ; 397 Fisher a. Kauffman, 3 Grant302 Pa i860 126 8 630 Fisher V. Murray I E..D. Smith 540 N. Y 1850 13; 3 679 Fisher a. Perkins, 80 Ky. II 1882 168 i 774 Fisher a. Sweet, 67 Cal. 228 s. c. 7 P. 657 188; -12 2 66 Fisher a. Vaughn, 75 Wis. 609 s. c. 44 N. W. 831 ...1890 218 4,a 911 Fitts a. Walker, 24 Pick. 191 1837 12 i 66 Fitzgerald V. Christl, 5 C. E. Gr. 90 N. J 1869 183 7 822 Fitzgerald a. Osborn, 26 Neb. 574 s. c. 42 N. W. 418 1880 22 I 90 Fitzsimmons a. Anschutz, 9 Pa. i8o 1848 173 3 791 Flanigan v. Champion, i Gr. Ch. 51 N. J 1838 69 i8,a 306 Fletcher V. Reed, 125 Mass. 312 i88i 188 2,a 833 Flint v. Eureka Mfg. Co., 55 Vt. 669 1881 62 i 258 Flocton V. Bunning, L. R. 8 Ch. App. 323 n 1864 42 2 162 Flory a. Kelley, 84 Iowa 671 s. c. 51 N. W. 181 1892!'°° ^ ^^^ •■ 183 2 821 Floss a. Firemen's Insurance Co., 67 Md. 403 s. c. 10 A. 139 1887 148 4 721 Flournoy V. Epping, 68 Ga. 707 1882 69 i8,a 306 Flower v. Barnkoff, 20 Or. 132 s. c. 25 P. 370 1890 10 14 61 Fogerty V. Jordan, 2 Rob. 219 N. Y 1864 12; 4 621 Ixii Foster a. Vyse, Table of Cases. ? n. page Foote a. Tenney, 9? III. 99 1880 143 3 707 Forbes a. Chamberlain, 3 S. C. 277 N. Y 1874 18 2 82 Ford V. Munson, I South. 93 i8i8 76 ; 341 Forrester a. Oliver, 96 111. 31; 1880 177 i 803 Foss a. Bissel, 114 U. S. 252 188; 15 4 73 Foster V. Andrews, 2 P. & W. 160 Pa 1830 172 i 788 Foster V. Barnes, 8i Pa. 377 '. 1876 117 i,/ 589 'L. R. 7Ch. 334 1872 40 2 156 L. R. 7 H. L. 333-4 1874 42 2 162 L. R. 8 Ch. App. 309 1870 43 3 163 L. R. 7 H. L. 318 1874 43 3 164 ("3 9 557 Foster's Appeal, 74 Pa. 399 1874 j 116 is,a 583 U17 i,e 589 Fountain v. Menard, 53 Minn. 443 s. c. 55 N. W. 601. .1893 10 14 61 Fowle V. Torrey, 125 Mass. 289 1881 174 4 793 Fowler a. Curry, 87 N. Y. 33 1881 64 4,e 272 Fowler a. Deveau, 2 Paige Ch. 400 N. Y 1831 \ •" *■ 151 2 731 Fowler a. Schaeffer, III Pa. 451 s. c. 3 A. 558 1886 49 i,a 197 Fox V. Clifton, 6 Bing. 776 1830 23 2 92 Fox V. Hanbury, Cowp. 445 1776 27 5 114 Fox a. Harper, 7 W. & S. 142 Pa 1844 126 2 627 Foxall a. Jones, i; Beav. 388 '. 1852 42 3 162 Francisco a. Cameron, 26 Ohio St. 190 1875 21; 4,a 901 Frank V. Tatum, 87 Tex. 204 s. c. 2; S. W. 409 1894 91 4 397 Frank V. Webb, 67 Miss. 462 s. c. 6 S. 620 i88g 192 i 839 Frasier a. Wilkinson, 4 Esp. 182 1805 62 i,d 260 Frazer V. Murdock, 6 H. L. 855 1881 74 8 331 Freeman V. Falconer, 12 J. & S.-j | 6919 308 j-16; 8 764 Freer a. Payne, 91 N. Y. 43 1883 K 169 2 777 ^213 3 894 Freeth a. Bourne, 9 B. & C. 632 1829 23 4 94 Frelinghuysen V. Ballantine, 38 N. J. Eq. 266 1864 28 3 116 French a. Brasfield, 59 Miss. 632 1882 74 4 330 French v. Griffin, 104 N. C. 141 s. c. 10 S. E. 166.. .1889 150 2 726 French V. Styring, 2 C. B. N. S. 357 1857 67 7 281 Frick a. Sayre, 7 W. & S. 383 Pa 1844 62 42 Frick a. Steel, 56 Pa. 172 1867 12 i 64 Fricke a. Ganzer, 57 Pa. 316 1868 69 6 300 Ixiii i n. page 53 I , 215 109 5,e 524 154 I 737 67 5 280 138 2 686 50 3 202 no 3 536 10; II 484 129 6 639 189 2 836 58 I, a 239 167 I 769 Table of Cases. Friedlander V. Hillcoat, 14 S. W. 786 Tex 1890 Frier a. Young, i Stock. 465 N. J 1853 Fries V. Ennis, 132 Pa. 195 s. c. 19 A. 59 1890 Froost a. Eldridge, 6 Rob. 578 N. Y 1866 Frost V. Hanford, i E. D. Smith 540 N. Y 1852 Froude v. Williams, 56 Law Times Rep. N. S. 441. ..1887 Frow, Jacobs & Go's Estate, 73 Pa. 459 1873 Frye a. Page, 2 B. & P. 240 1800 Fuller V. Percival, 126 Mass. 381 1879 Fulton V. Bank of Pittsburgh, Central, 92 Pa. 112. ..1879 Funk V. Haskell, 132 Mass. 580 1882 Furnis a. Englis, 4 E. D. Smith, 587 N. Y 1855 Gaffney v. Hoyt, 2 Idaho 184 s. c. 10 P. 34 1886 69 14 304 Gaines v. Wilson, 24 S. E. 828 Va 1896 Gale V. Miller, 54 N. Y. 536 1874 Gallaudet a. Bank, Meriden Nat., 120 N. Y. 298 s. c. 24 N. E. 994 1890 Gano a. Moore, 12 Ohio 300 1843 Gano V. Samuel, 14 Ohio 593 1846 Ganzer V. Fricke, 57 Pa. 316 1868 Gardiner v. Conn, 34 Ohio St. 187 1877 Gardiner a. Reid, 65 N. Y. 578 1875 Gardner a. Klumpp, 114 N. Y. 153 s. c. 21 N. E. 99..i88g Gardner v. McCutcheon, 4 Beav. 534 1842 Garland, ex parte, 10 Vesey, iio 1804 Garnet a. Ward, 6 Duer 257 1857 Garrick a. Burdick, L. R. 5 Ch. App. 233 1870 Gates V. Beecher, 60 N. Y. 518 187; Gaugerv. Pautz, 45 Wis. 449 1878 Gavit V. Supplee, 2 W. N. C. 561 Pa 1876 Gay V. Seibold, 97 N. Y. 472 1884 Gay V. Waltman, 8g Pa. 453 1879 Gaylord v. Imhoff, 26 Ohio St. 317 1875 *Geddes' Appeal, 84 Pa. 482 1877 Geery V. Cockroft, i J. & Sp. 146 N. Y 1871 Cellar, ex parte, i Rose 297 1812 Glbb's Estate, 157 Pa. 59 s. c. 27 A. 383 1893 Gibbsa. Hogeboom,88 Pa. 235 1878 Ixiv 63 d 266 175 4 795 45 18; 162 2 757 128 4 635 67 6 300 215 4,a 902 219 I 912 135 I 677 155 4 744 74 7 331 49 4 197 43 c i68 182 5 817 96 6 411 (25 9 622 76 17,3 348 124 i,b 617 105 c,,a 483 "5 12 573 114 II 568 171 5.1 784 54 I 219 44 5 177 95 4 407 125 12 623 Table of Cases. Gibson a. Bond, i Camp. 185 1808 Gibson V. Lupton, 9 Bing. 297 1832 Gibson v. Stone, 43 Barb. 285 1865 Gilbert a. Ryder, 16 Hun. 163 N. Y 1878 Gillies a. Williams, 75 N. Y. 197 1878 Gilligan a. f 33 W. Va. 246 s. c. 10 S. E. 400 1889 Darby, I 37 W. Va. 59 s. c. 16 S. E. 507 1892 Gillilan v. Ins. Co., 41 N. Y. 376 1869 Gilmore a. Moorehead, 77 Pa. 118 1874 Gilpin V. Enderby, 5 B. & Aid. 955 1822 Ginrich a. Walter, 2 Watts. 204 Pa 1834 Glass Works a. Miller, 172 Pa. 70 s. c. 33 A. 350 1895 Gleason v. C. M. & St. P. R. R. Co., 82 Iowa, 745 s. c. 43 N. W. 517 1889 Glennie a. Mair, 4 M. .& S. 240 r8i; Gleyre a. Winstanley, 146 111. 27 s. c. 34 N. E. 628..1893 Godwin a. Mechanics' Bank, i Hal. Ch. 334 N. J. ..1846 Goepper v. Kinsinger, 39 Ohio St. 529 1883 Goewy a. Townsend, 19 Wend. 424 N. Y 1838 Goff a. Reeves, Pen. 609 N. J 1809 Golden a. Mosgrove, loi Pa. 60; 1882, Golden State &c. Iron Works v. Davidson, 73 Cal. 389 s. c. 15 P. 20 1887 Goldman v. Rosenberg, 116 N. Y. 78 s. c. 22 N. E.259 1889 Goldsmid v. Cosgrove, 7 H. L. 785 1859 Goldthwaite v. Day, 149 Mass. 185 s. c. 21 N. E. 359 1889 Goldthwaite v. Janney, 102 Ala. 431 s. c. 15 S. 560.. 1894 Goodbar V. Gary, 16 Fed. R. 316 1882 Goodbara. Worthy, 53 Ark. i s. c. 13 S. W. 216 i8go Goode V. Harrison, 5 B. & Al. 147 1821 Gordan a. Nanson, L. R. i App. Cas. ig; 1876 Gordon a. Merrick, 20 N. Y. 93 1859 Gorman a. Alexander, 15 R. I. 421 s. c. 7 A. 243 1886 Gorton a. Dowse, A. C. 190 1891 f8Cow. 168 1828 1 Gould V. Gould, 1 5 ,._ ^ y^g„j_ 2^3 M_ Y ,gjo I '7' I 782 Ixv i n. page 119 I 598 7 I 44 19 2 85 49 5 198 63 2 267 2; 4 109 10 I 54 108 6 505 137 ? 684 131 7 653 213 3 894 {<3 4 372 89 I 388 139 6 694 155 3 743 59 2,e 246 27 I 113 116 12 581 114 6 566 162 I 757 162 I 757 76 3 340 175 4 796 114 6 566 210 6 882 211 3,« 886 log II 534 109 l,b 519 no 4 537 47 2,a i8g 69 21 309 140 3 697 2og I 874 62 !,« 260 107 3 498 73 3 325 Table of Cases. Goulding V. Bain, 4 Sand. 716 N. Y 1852 Gouthwaite a. Duckworth, 12 East. 421 1810 Grace V. Smith, 2 Wm. Bl. 997 i775 { Gram v. Caldwell, ; Cow. 489 N. Y 1826 | Gram v. Seton, i Hall 262 1828 Granby Min'g & Smelt'g Co. v. Laverty,i59 Pa. 287 s. c. 28 A. 207 1893 Grant V. Bryant, loi Mass. 567 1869 -j Graser v. Stellwagen, 25 N. Y. 315 1862 Gratz V. Bayard, 14 S. & R. 41 Pa 1824 Gray a. Catskill Bank, 11 Barb. 471 1851 Gray v. Hamil, 82 Ga. 375 s. c. 10 S. E. 205 1889 Gray v. Kerr, 460 S. L. 652 s. c. 23 N. E. 136 Ohio..i88g Green a. Bank, Farmers' & Mechanics,' I Vr. 366 N. J .1863 Green v. Beasley, 2 Bing. io8 N. C 1835 Green a. Boswell, i Dutch. 391 N. J : 1856 Green a. Merrill, 55 N' Y. 270 1873 *Green a. Willis, 5 Hill 232 N. Y 1843 Greene V. Greene, i Ohio 53; 1823 Greenhan v. Grey, 4 Ir. C. L,. 501 185; Greenop a. Carpenter, 74 Mich. 664 s. c. 42 N. W. 276 1889 Greenshaw a. Logan, 2; Fed. 299 1885 Greenwald V. Kaster, 86 Pa. 45 1878 Greenwood V. Brink, i Hun. 227 N. Y 1874 Greenwood v. Brodhead, 6 Barb. 593 N. Y i8;o Gregg V. Hord, 129 111. 613 s. c. 22 N. E. 528 .....i88g Gregg a. Smith, 9 Neb. 212 s. c. 2 N 459 1879 Gregory a. Plumer, L. R. 18 Eq. 621 1874 Grey a. Greenham, 4 Ir. C. L. 501 1855 Grier v. Hood, 25 Pa. 430 1855 Griffin a. French, 104 N. C. 141 s. c. 10 S. E. 166.. .1889 Griffith a. Heitman, 43 Kan. 5; s. c. 23 P. 589 1890 Griffiths a. Caldicott, 8 Exch. 898 1853 Griggs V. Swift, 82 Ga. 392 s. c. 9 S. E. 1062; 1889 Griggs a. Ulman, 32 La. An. 657 i88o Grimes a. Rothell, 22 Neb. 526 s. c. 35 N. \7. 392. ..1887 Grinnei Mfg. Corp'n a. Haddock, 16 W. N. 549 1885 Ixvi 2 n. page 177 5 804 19 5 86 5; I 225 66 3 277 190 I 837 191 2 838 139 8 694 130 4 645 35 2 138 212 7 891 118 2 596 72 I 320 58 I./ 239 220 3,6 916 218 I 910 181 6 814 62 i,^ 262 137 6 68; 152 3 731 6 2 42 n6 13 581 50 2 201 213 2 893 116 II 581 90 3 391 53 4 251 109 5,'; 524 179 4 809 76 I 339 144 I 709 50 2 201 126 4 628 150 2 726 155 I 741 16 2 77 183 5 822 37 3, 102 Mo. 93 s. c 1 i5S.W.7;oJ ^ Haight a. Rosenfield, 53 Wis. 260 s. c. 10 N. 378 1881 Haldeman v. Bank of Middletown, 28 Pa. 440 1857 Hale V. Henrie, 2 Watts. 143 Pa 1834 Hall a. Bank, Roger Williams Nat., 160 Mass. 71 s. c. 35 N. E. 666 1893 *Hall a. Burns, Penn. 984 1812 . Ixvii « n. page 51 3 207 143 2 706 59 2,B 250 183 6 822 30 2 119 59 2,b 244 123 14 613 112 2 546 69 22 309 16 I 76 171 S,c 785 137 2 684 114 3 563 41 I 158 143 5 707 145 I 715 25 I 108 138 2 686 161 2 756 181 5 813 174 2 793 213 7 895 52 311 37 3-» 148 37 3,& 149 70 2 314 104 5 466 108 6 507 69 7 301 52 210 131 6 653 115 II 573 117 l.c 589 198 2 851 76 2 340 Table of Cases. Hall a. Cassidy, 97 N. Y. i;ci 1884 Hall V. Johnson, 6 Tex. C. Ap. no s. c. 24 S. W. 86i 1894 Hall V. Lanning, i Otto 160 1875 Hall a. .VlcLewee, 103 N. Y. 639 1886 Hall a. Tanner, i Pa. 417 1845 Halsey a. Dob, 16 Johns. 34, N. Y 1819 Halstead v. Coleman, 143 Pa. 352 s. c. 22 A. 977 i8gi Hamil a. Gray, 82 Ga. 37; s. c. 10 S. E. 205 1889 Hamill V. Purvis,2 P. & W. 177 Pa 1830 Hamilton Fire Ins. Co. a. Kimball, 8 Bosw. 49; N. Y 1861 Hamilton a. Kendall, 4 Appeal Cases 504 1879 Hamilton a. McKee, 33 Ohio St. 7 1877 Hamilton a. Summerlot, 121 Ind. 87 s'. c. 22 N. E. 973 1889 Hamilton a. Williams, i South. 220 N. J 1818 Hamilton, in re, i P. 800 1880 Hamilton's Appeal. 103 Pa. 368 1883 Hammock a. f i Buck. Cases in Bankr'cy 210 "1 gg Hankey, I 3 Madd. 148 n. b > Hammond a. Holme, L. R. 7 Exch. 218 1872 Hammond a. Schofield, i Q. B. 453 1891 Hampton V. Coddington, i Stew. 557 N. Y 1887 Hampton a. Sumner, 8 Ohio 328, 36; 1838 Hanbury a. Fox, Cowp. 445 1776 Hancock v. Hintrager, 60 Iowa 374 1882 Haney Mfg. Co. v. Perkins, 78 Mich, i s. c. 38 N. W. 1073 ...iSSg Hanford a. Frost, i E. D. Smith 540 N. Y 1852 Hanford v. Prouty, 133 111. 339 s. c. 24 N. E. 565 1890 Hankey V. f i Buck. Cases in Bankr'cy 210) gg Hammock, I 3 Madd. 148 n. b i Hanna a. Collier, 71 Md. 253 s. c. 17 A. 1017 1889 Hanna v. Wray, 77 Pa. 27 1874 Hanrahan a. Tolman, 44 Wis. 133 1878 r. i. f 2 Camp. 971 Hanson a. Barton, I ^Taunt. 49/ '^ Harbeck v. Pupin, 729 N. Y. 115 s. c. 2; N. E. 3ii..i8go Harbert's (Sir William) case, 3 Rep. 14 1585 Ixviii i n. page 64 2 269 15? 5 735 123 i,b 612 64 2 269 131 4,a 652 51 4 207 44 5,» 179 220 3,6 916 133 2 659 118 2 595 76 14 346 77 3 357 Ql 7 398 128 3 634 118 4 596 134 3 663 196 3.'» 847 124 2 617 74 6 331 75 T 235 77 4 359 137 5 685 n6 14 582 27 5 114 69 10 301 143 6 707 138 2 686 104 4 464 74 6 331 108 6 507 125 9 621 128 I 634 62 l,e 260 90 4 391 IC5 7 481 Table of Cases. § n. page Harbster's Appeal, 125 Pa. i s. c. 17 A. 204 i88g 220 3,a 916 Hardenburgh a. Boeklen, 5 J. & Sp. no N. Y 1874 67 6 280 Hardin v. Jamison, 60 Minn. 112 s. c. 62 N. W. 394 189; n6 4 579 Hare V. Commonwealth, 92 Pa. 141 1875 109 S,h 531 Hare a. Hyat, Comb. 383 1609 5 i 40 Hargardine-McKittril< Dry Goods Co. a. Settle, 66 Fed. 850 C. C. of Ap 1894 127 2 632 Hargrave V. Conroy, 4 C. E. Gr. 281 N. J 1868 59 2,a 244 Hargrove a. Mclnroy, 16 L. T. 509 1867 49 2 197 Harper V. Fox, 7 W.& S. 142 Pa 1844 126 2 627 Harper V. McKinnis, 53 Ohio 434 s. c. 42 N. E. 251. .1895 125 i 620 Harper V. Raymond, 3 Bosw. 29 N. Y i8;8 175 5 796 Harris V. Balto, 17 A. 1046 Md 1889 127 i 632 Harris a. Beatson, 69 N. H. 83 s. c. 19 Cent. L. I. 275 1884 121 2 606 Harris V. Butterfield, 33 L. T. 659 1876 17 2 80 Harris a. Dean, 33 L. T. 659 1876 17 2 80 Harris, in re, 4 DeG. J. & S. 523 1863 18 3 82 Harris V. Murray, 28 N. Y. 574 1864 { J^ l'" l^ Harris V. Peabody, 73 Me. 262 1881 197 i 849 Harris V. Rosenberg, 161 Pa. 367 s. c. 29 A. 44 1894 117 9 593 Harris V. Sessler, 3 S. W. 316 Tex 1887 69 3 298 Harris V. Vischer, 57 Ga. 229 1876 106 2,3 488 Harris a. Wolbert, 3 Hal. Ch. 305 N. J 1849 211 3,a 886 Harrison a. Benners, 19 Barb. 53 N. Y 1854 81 47 Harrison v.Farrington,/ '5 Stew. 353 N.J..... 18851 , 1.44 N.J. 232 s. c. 10 A. 105 1887 J f 69 21 309 Harrison a. Goode, 5 B. & Aid. 147 1821 j g Hart V. Kelly, 83 Pa. 286 1877 64 4 270 Hart V. Withers, I P. & W. 285 Pa 1830 139 7 694 Harter v. Songer, 138 Ind. i6i s. c. 37 N. E. 595 1894 215 3 goi Hartley a. Prosser, 36 Minn. 340 s. c. 29 N. W. 156. ..1886 105 g,c 483 Hartley V. White, 94 Pa. 31 1880 171 7,b 786 Hartley's case, Rus. & R. 139 1807 59 2,k 247 Hartman a. Kirl<, 63 Pa. 97 1869 44 3 176 Hartman v. Woehr, 3 C. E. Gr. 373 1867 19 8 87 *Hartung V. Siccardi, 3 E. D. Smith 561 N. Y 1854 i34 8,rf 670 Harvey V. Childs, 28 Ohio St. 319 1876 64 4,/ 272 Harvey a. Stillman, 47 Conn. 26 1879 137 4 685 Ixix Table of Cases. ? n. page Hasbrouck V. Childs, 3 Bosw. 105 N. Y 1858 32 i 126 ( 100 10 430 Hasbrouck a. Horner, 41 Pa. i6g i86i •! ,0, , 821 Haskell a. Funk, 132 Mass. 580 1882 58 i,u 239 Hasson a. Rich, 4 Sandf. 115 N. Y 1850 125 13 623 Hatfield V. Moses, 3 S. E. 538 S. C 1887 121 i 606 Haven a. Griswood, 25 N. Y. 5q; 1872 143 2 706 Hawkins V. Appleby, 2 Sandf. 421 N. Y 1849 144 3 710 Hawkins a. Waiden, 6 S. 227 Miss 1889 14 i 70 Hawley V. Hurd, 56 Vt. 617 1884 44 i,c 172 *Hawley a. Shepard, I Conn. 367 1815 62 42 Hawn V. Land & Water Co., 74 Cal. 418 s. c. 16 P. ig6 1887 189 I 836 Hayden a. Rose, 35 Kan. 106 s. c. 10 P. 554 1886 10 8 57 f 3 Sandf. 293 N. Y 1849 i35 3 679 Hayes v.Heyer, I ^ Sandf. 485 N.Y 1847 191 3 838 Hayes a. Remel, 83 Mo. 2CX) 1884 69 17 305 Hayes v. Treat, 178 Pa. 310 s. c. 35 A. 987 1896 115 16 574 Haynes V. Short, 88 Ala. 562 s. c. 7 S. 157 1890 211 4 887 Hayward a. Beach, 10 Ohio 455 1841 76 12 345 Hayward a. Parsons, 4 De G. F. & J. 474 1862 212 ; 890 Head, ex parte, i Q. B. 638 1894 204 i 863 Heard v. Wilder, 81 Iowa. 421 s. c. N. W. 1075 1890 10 4 ;; Heartt V. Corning, 3 Paige 566 N. Y 1832 220 i 914 Heathcot V. Ravenscroft, 2 Hal. Ch. 113 N. J 1847 18; i 826 Heimstreet V. Holland, 5 Denio 68 N. Y 1847 62 i,b 259 Heitman V. Griffith, 43 Kan. 55 s. c. 23 P. 589 1890 155 i 741 Helion a. Webb, 3 Robt. 625 N. Y 1864 213 5 894 Hellman a. Reis, 25 Ohio St. 180 1874 170 i,a 779 ui c -.v, /35Ch. D.4361 ,„o_ /106 4 489 Helmorev.Sm.th. |^5Ch.D.449}" '^^^ { ^g^ ^ ^^^ *Helsby v. Mears, 5 B. & C. 504 1826 148 2 720 Hemingsway a. Rensheimer, 35 Pa. 432 i860 106 5 490 Henarie a. Fish, 14 Or. 29 s. c. 13 P. 193 1886 91 5 397 *Henderson v. Lewis, 9 S. & R. 379 Pa 1823 134 13 673 Henderson a. Taylor, 17 S. & R. 453 Pa 1828 123 2 614 Hendy a. Faulkner, 79 Cal. 265 s. c. 21 P. 754 1889 211 i,a 88; Henn v. Walsh, 2 Edw. Ch. 129 N. Y 1833 177 6 804 Hennessey a. Ontario Bank, 48 N. Y. 545 1872 53 i 21; *Henricks a. Sylvester, 61 N. W. 942 Iowa 1895 104 5 467 Henrie a. Hale, 2 Watts. 143 Pa 1834 { [^ " ^ ^g^ Ixx Table of Cases. Henry V. Evans, 63 N. W. 687 Iowa 1895 Hepburn a. Moore, 5 Pa. 399 1847 { Hepworth a. Bell, 134 N. Y. 442 1892 Hepworth a. Butcher, 11; N. Y. 328 s. c. 22 N. E, 163 1889 Herrick v. Ames, 8 Bosw. 11; N. Y 1861 Herrick a. Murray, 171 Pa. 21 s. c. 32 A. 112; 1895 Hervey a. Van Pelt, 4 Bosw. 60 N. Y 1859 Hesketh v. Blanchard, 4 East. 144 1803 Hess V. Werts, 4 S. & R. 356 1818 Hetlinger a. Speck, 1 S. C. Dig. 130 Pa i886 Hettrick a. Bendell, 3 J. & Sp. 40; N. Y 1873 „ „ f 3Sandf. 293 N. Y • 1849 Heyer a. Hayes, (^ gandf. 485 N. Y , ,847 Heyhoe v. Burge, 9 C. B. 431 1850 Hickin, ex parte, 3 De G. & S. 662 1852 Hickiea. Valentine, 39 Ohio St. 19 1883 Hickman a. Cox, 8 H. L. 268 i860 Hicks a. Brown, 24 Fed. Rep. 811 1885 Higgins V. Armstrong, 6 Colo. 38 s. c. 10 P. 232 1886 Higgins V. Rector, 47 Tex. 361 1877 Higgins V. Rockwell, 2 Duer 650 N. Y 1853 Hill V. Beach, i Beas. 31 N. J 1858 { „.„ , r4Ch. D. 237 18761 H.lla.Lacey,|^App_Cas.c,4 ,8„} Hill V. Smalley, 8 Vr. 103 N. J 1874 Hill a. Smith, 45 Vt. 372 1850 Hill V. Voorhies, 23 Pa. 68 1853 Hillcoat a. Friedlander, 14 S. W. 786 Tex 1890 Hills a. Tanner, 48 N. Y. 662 1872 Hilton V. McDowell, 87 N. C 364 1882 Hine a. Bank, Citizens,' 49 Conn. 236 1881 Hintragera. Hancock, 60 Iowa 374 1882 Hoarev. Dawes, i Doug. 371 1780 | Hoarev. Niblett, i Q. B. D. 781 i8gi Hobensack v. Mershon, 2 Zab. 372 N. J 1850 Hobbs V. McLean, 117 U. S. 567 1886 Hodgman v. Smith, 13 Barb. 302 N. Y 1852 Hoeflinger v. Wells, 47 Wis. 628 1879 Ixxi « n. page 68 3 289 83 I 371 83 4 372 183 8 822 72 2 321 220 3 915 158 2 751 150 4 727 48 5 194 24 I lOI 47 I 189 66 22 309 135 3 679 191 3 838 58 i.^ 240 59 2./ 246 19 7 87 59 2,/ 249 59 2,« 246 15 4 73 197 I 849 87 2 381 169 I 776 213 2 893 170 4,a 780 177 8 804 69 13 304 69 lS,a 30; 53 I 215 12 I 66 125 4 621 23 3 93 69 10 301 7 3 45 49 6 198 77 3 358 69 II 302 36 I 140 59 3 251 128 6 635 Table of Cases. 2 n. page Hoffman a. Knerr, 6; Pa. 126 1870 161 4 756 Hoffman v. Steinbeisser, 11 W. N. 384 (C. P. 4") Pa..i88i 194 i 842 Hogeboom v. Gibbs, 88 Pa. 23; {HH ^l] ,^ ^°^ Hoglan a. Young, 52 Cal. 467 1877 160 6 754 Holdane V. Butterworth, 5 Bosw> i N. Y 1859 69 16 304 Holden a. Davidson, 35 Conn. 103 s. c. 10 A. 51; 1887 6g 11 302 Holdredge v. Gwynne, 3 C. E. Or. 26 N. J 1866 213 7 8g; Holland a. Austin, 69 N. Y. 571 1877 181 2 813 Holland V. Drake, 26 Ohio St. 441 1876 13; 3 679 Holland a. Heimstreet, 5 Denio 68 N. Y 1847 62 i,J 259 HoUemback v. More, 44 N. Y. Sup'r Court 107 1878 41 2 159 Hollingshead a. Reed, 8 B. & C. 878 182; 52 210 Hollister a. Salt Lake City, 118 U. S. 256 1886 24 8 103 Holme V. Hammond, L. R. 7 Exch 218 1872 7; i 335 Holmes a. Brophy, 2 MoUoy, Ir. Ch. 1 1828 48 3,6 193 Holmes v. Kortlander 64 Mich. 591 s. c. 31 N. W. 532 1887 138 3,a 692 Holmes a. Low, 5 C. E. Or. N. J 1864 184 4 82; Holmes v. United Ins. Co., 2 Johns. Cas. 329 N. Y..1801 71 43 Holthouse a Kountz, S? Pa. 235 1877 148 7 722 Holt's Appeal. 98 Pa. 257 1881 11; 8 572 Homer v.'Wood, II Cush. 62 Mass 1853 171 2,6 783 Honev. Perring, 4 Bingham 28 1826 | 1 f: Hood a. Grier, 25 Pa. 430 185; 126 4 628 Hood V. Riley, 3 Gr. 127 N. J 1835 { ^ 'I, g^ Hook a. Denithone, 112 Pa. 240 1886 69 4 298 Hooker a. Wright, 10 N. Y. 51 1854 44 9 180 Hooper v. Baillie, 118 N. Y. 413 s. c. 23 N. E. 569. ..1890 135 2 679 Hoover a. Dubos, 25 Fla. 720 s. c. 6 S. 788 1889 54 5 222 Hopkins V. Thomas, 61 Mich. 38 s. c. 28 N. W. 147.. 1881 132 i 655 Hopkins a. Walstrom, 103 Pa. 118 1883 | ^' ' '*°^ ' 1 153 I 734 Horbach V. Huey, 4 Watts. 455 Pa 183; I ?5° ■^ ^' L134 l,a 662 Hord a. Gregg, 129III. 613 s. c. 22 N. E. 528 1889 179 4 809 Horn a. Dillon, 5 How. Pr. 35 N. Y 1850 193 i 841 Horner V. Hasbrouck, 41 Pa. 169 1861 -Jo „ t 103 2 821 Horner a. Jones, 69 Pa. 214 1869 122 i,a 6og ixxii Table of Cases. ? n. page Hoskinson V. Eliot, 62 Pa. 393 1869 86 i 378 Hotchkiss V. English, 4 Hun. 369 N. Y 1875 i7 4 80 Houghton V. State Mutual Ins. Co., 68 N. W. 142 Mich 1896 68 4 290 Housea. Drennen, 41 Pa. 30 1861 ( ^9 6 300 •■ 125 2 620 Houseal's Appeal, 45 Pa. 484 1863 207 2 871 Hovey V. Rianhard, 13 Ohio 300 1844 24 2 102 Howard a. Bank, Buffalo City, 35 N. Y. 50 1886 { ^^ ^° ^ ^° Howard a. Kenney, 68 Vt. 194 s. c. 34 A. 700 i8g6 188 2, a 834 Howard V. Kyte, 69 Iowa 307 s. c. 28 N. W. 609 1886 12 [ 65 Howard V. McLaughlin, 98 Pa. 440 1881 ig6 2,a 846 Howell V. Adams, 68 N. Y. 315 1877 181 5 814 Howell V. Brodie, 6 Bing. N. C. 44 1839 18 4 83 Howell a. Davis, 20 Am. Law Reg. N. S. 461 N.J. . .1861 iii 8 544 Howell V. Kelly, 149 Pa. 473 s. c. 24 A. 224 1892 10 13 61 Howell a. Reynolds, L. R. 8 Q. B. 398 1873 123 i 612 r 9; 2,rf 406 Howell a. Ross, 84 Pa. 129 1877 ( j26 g 629 Howell V. Teel, 2 Stew. 4Q0 N. J 1878 k; 1&5 571 Hoxey V. Chaney, 143 Mass. 592 1887 214 2, ft 897 Hoytv. Bennett, 59 N. Y. 538 1872 86 3 379 Hoyt a. Gaffney, 2 Idaho 184 s. c. 10 P. 34 1886 69 14 304 Hoyt V. Sprague, 103 U. S. 613 1880 109 5,/ 52; Hubbard a. Guild, rDuer 662 N. Y 1853 137 2 684 Hubbard V. Matthews, 54 N. Y. 43 1873 177 3 803 Hubbard V. Moore, 67 Vt. 532 s. c. 32 A. 465 1895 100 5 427 . fioQ. B. D.488...i883\ Hubbuck a. Attorney General, 1 J3 q. b. D. 27;...i884 J "^ '^ ^54 f 76 3 340 Hueya. Horbach, 4Watts. 455 Pa 1835 \^^^ j^^ ggj Hughilt a. Richardson, 76 N. Y. 55 1879 66 6 278 Hughes a. Chapman, 104 f 37 P. 1048 I „ ^ , '^ i oD 1 1894 45 183 Cal. 302 s. c •- 38 P. icg > -'^ ^' ' Hughes V. Gross, 43 N. E. 1031 Ma4tf.^ 1896 183 6 822 Hulita. Jaques, I Harr. 38 N. J 1837 i6i i 756 Hull a. Vanderburgh, 20 Wend. 70 N. Y 1838 59 2,c 244 Hulschitzer a. Craig, 5 Vr. 363 N. J 1871 171 2,a 782 Hulse's Estate, 12 Phila. 130 1878 176 2 797 Hundley v. Farris, { '^ S. W. 392 Mo... .8901 ^^ ^ 1 103 Mo. 78 s. c. 15 S. W. 312..1891 J I^xiii Table of Cases. ? n. page Hunt a. Burnell, 5 Jur. 650 1841 18 i 82 Hunt V. Enkson, 57 Mich. 330 s. c. 23 N. W. 832 1885 51 3 207 Hunt a. Trego, H. L. 7 1895 | "" ' I'^t •-214 4 898 Hunter a. Young, 4 Taunt. 582 1812 20 2 88 Huntington a. JMoore, 7 Hun. 42; 1876 67 11 283 Hurd a. Hawley, 50 Vt. 617 1884 44 i, 172 Hutchinson a. Brown, 2 Q. B. 126 1895 2n 5 887 Hutchinson a. Onderdonk, 2 Hal. Ch. 632 E. & A. ..1849 192 2 840 Hutchinson v. Onderdonk, 2 Hal. Ch. 277 N. J 1847 185 2 840 Hutchinson a. Sharp, ICO N. Y. 533 1885 37 i I47 Hutzler v. Phillips, i S. E. 26 S. C. 126 s. c. 502 1887 in 5 542 Hyatt V. Hare, Comb. 383 1609 51 40 Hyde a. Leggett, ;8 N. Y. 572 1874 52 211 Hymes v. Weld, 91 Ga. 742 s. c. 17 S. E. looi 1893 14 2 71 Idell a. Coddington, | ? ^tew. 540 N. J 1879 2,3 4 894 •■2 Stew. 504 N. J 1878 215 4 901 Ihmsen v. Lathrop, 104 Pa. 365 1883 6g 3 297 Ihmsen V. Negley, 2; Pa. 297 1855 130 3 644 Imeson V. Schriver, II S. W. 598 Ky 1889 34 4 134 Imhoff a. Gaylord, 26 Ohio St. 317 1875 105 9,a 483 Impson a. Atwood, 5 C. E. Gr. 151 N. J 1869 109 i,a 518 Ingalls a. Julio, I Allen.41 i85i 35 3 139 Insley V. Shire, 54 Kans. 793 s. c. 39 P. 713 1895 73 i 324 Insurance Co. a. Gillilan, 41 N. Y. 376 1869 137 3 684 Irwin V. Bidwell, 72 Pa. 244..^ 1872 18 4 83 Irwin a. Riegle, 34 Leg. Int. 447 s. c. 4 W. N. 537. ..1877 133 i 658 Irwine a. Sutton, 12 S. & R. 13 Pa 1824 133 i 658 Isles V. Tucker, ; Duer 393 N. Y 1856 141 6 701 Ivy a. Loftus, 37 S. W. 766 Tex 1896 171 3 783 Jackson a. Cross, 5 Hill 478 N. Y 1843 76 6 341 Jackson V. Litchfield, 8 Q. B. D. 474 1882 77 2,c 357 Jackson V. Miller, I Dutch 90 N. J 1855 142 4 703 Jackson a. Rice, 171 Pa. 89 s. c. 32 A. 1036 1895 14 i 69 Jackson a. Skaife, 3 B. & C. 421 1824 171 3 783 Jackson a. Smith, 2 Edw. Ch. 28 N. Y 1833 { JJg ^g ^ ^g^ Ixxiv Table of Cases. James a. Mattock, 2 Beas. 126 N. J i860 | """* •. 116 n. page Jaffray a. Dunn, 36 Kans. 408 si c. 13 Pa. 781 1887 134 12 672 James a. Bates, 3 Duer45 N. Y 1854 171 5,* 784 567 9&11 581 James V. Pope, 19 N. Y. 324 1859 i8o 2 810 James a. Rizer, 26 Kans. 221 i88i 69 17 305 James v. Springer, 78 Iowa 617 s. c. 43 N. W. 461.. .1889 173 i 790 James a. Weall, 68 L. T. R. 515 1893. 91 8 398 Jamison a. Hardin, 60 Minn. 112 s. c. 62 N. W. 394 1895 ii6 4 579 Janes V. Wtiitbread, II C. B. 406 1851 59 2,h 250 Janney a. Goldthwaite, 102 Ala. 431 s. c. i; S. 560.. 1894 109 11 534 Janney v. Springer, 78 Iowa 617 s. c. 43 N. W. 461. .1889 100 5 428 Jaques V. Hulit, I Harr. 38 N. J 1837 161 i 756 Jaques V. Marquand, 6 Cowen 497 N. Y 1826 40 3 156 Jaquette a. Brown, 94 Pa. 113 1880 12 i 64 Jaquin v. Buisson, 11 How. Pr. 385 N. Y 185; 75 3 335 Jardine a. Scarf, 7 App. Cas. 34; 1882 70 i 31; Jarvisa. Dunham,8Barb. 88N. Y 1854 I ^l ^ ^^° 1 156 2 747 Jay a. Brush, 113 N. Y. 482 s. c. 21 N. E. 184 1889 183 i 821 *Jaycoxa. Turner, 40 N. Y. 470 1869 174 3 793 Jenkins v. Barrows, 73 Iowa, 438 s. c. 53 N.W. 510..1887 160 i 753 Jennings V. Beale, 18 A. 550 Pa 1889 161 5 756 Jennings V. Rickard, 10 Colo. 39; s. c. 15 P. 677 1877 155 3 741 Jesup V. Cook, I Hal. Ch. 434 N. J 1798 220 i 914 Johnson v. Butler, 4 Stew. 35 N. J 1879 211 2 886 Johnson a. Cammack, i Gr. Ch. 83 N. J 1839 76 24 351 Johnson V. Evans, 7 M. & G. 249 1844 100 i 424 Johnson a. Farr, 25 III. 522 1861 36 6 141 Johnson a. Hall, 6 Tex. C. Ap. no s. c. 24 S.W. 861. .1894 153 5 735 Johnson V. Kaiser, II Vr. 286 N. J 1878 134 5,3 666 Johnson V. Miller, 16 Ohio, 431 1847 67 ii 284 *Johnson V. Stear, IC9 Eng. C. L. R. N. S. 341 1869 47 2,c 189 Johnson a. Tenney, 43 N. H. 144 1864 199 3 853 Johnson's Appeal, 120 Pa. 129 1886 217 6 908 I 119 3 599 Johnston V. Bernheim, 86 N. C. 339 1882 J 138 4 686 (■156 I 747 Johnston V. Straus, 26 Fd. Rep. 57 1882 | '°9 '•'^ 520 I no 4 537 Johnston, in re, 15 Ch. D. 548 1880 74 10 332 Ixxv Table of Cases. ? n. page Jonasa. McCruden, 173 Pa. 507 s. c 1895 109 11 534 Jones' Appeal, 70 Pa. 169 1871 117 3,A 590 Jones V. Battin, 30 Pa. 84 1857 139 5, a 693 Jones V. Butler, 87 N. Y. 613 1882 32 3 127 Jones a. Clark, 8 Ala. 127 s. c. 6 S. 362 1889 24 i loi Jones V. Clark, 42 Cal. i8o 1871 15 i 72 Jones a. DeGraum, 23 Fla. 56 s. c. 6 S. 92; 1887 142 i 703 Jones V. Dexter, 130 Mass. 380 1881 100 11 430 Jones V. Foxall, 12 Beav. 388 1852 42 3 162 Jones V. Horner, 60 Pa. 214 1869 122 i,a 609 Jones V. Lloyd, L. R. 18 Eq. 265 1874 177 11 805 Jones a. Pettingill, 28 Kan. 749 1882 162 3 758 Jones V. Smith, 31 S. C. 527 s. c. 10 S.E. 340 i88g icon 431 Jones a. Voorhees, ; Dutch, 270 186; 52 211 Jones V. Walker, 103 U. S. 444 1880 74 3 329 Jones a. White, I Robt. 321 N. Y 1863 214 3,/ 898 Jordan a. Fogerty, 2 Rob. 219 N. Y 1864 125 4 621 Judge V. Braswell, 13 Bush. 67 Ky 1887 15 4 73 pB&S. 847 ) Jukesi a. Kilshaw, •< 32 L. J. Q. B. 217,.. [^ 1863 64 4,6 271 1^9 Jurist, N. S. 1231 > Julio V. Ingalls, I Allen 41 i86i 3; 3 139 June a. Betts, 51 N. J. 274 1873 188 4 834 Kainea. Meason,63 Pa. 335 i86o | '° ^ 56 •^ 125 I 620 Kain's Appeal, 92 Pa. 275 1879 109 8,j 531 Kaiser V. Fendrick, 98 Pa. 528 i88i 133 i 658 Kaiser a. Johnson, II Vr. 286 N. J 1878 134 5, a 666 Kapp V. Barthan, I E. D. Smith 622 N. Y 1852 220 4 917 Kaster a. Greenwald, 86 Pa. 45 1878 90 3 391 Kauffman V. Fisher, 3 Grant 302 Pa i860 126 8 630 Kayser v. Maugham, 8 Col. 232 s. c. 6 P. 803 1885 51 4 208 Keegan V. Cox, 116 Mass. 289 1874 141 2 701 Keim a. Sparman, 83 N. Y. 145 1880 140 4,a 698 Keller a. Secor, 4 Duer. 414 185; 76 14 346 Kelley a. Berry, 4 Rob. 106 N. Y 1866 199 2 853 Kelley v. Flory, 84 Iowa, 671 s. c. 51 N. W. 181 1892 | '°° ^ 428 ^183 2 821 853 205 I 865 Kellogg a. Wilcox, 11 Ohio 394 1842 -[ '^^ ' '■205 I Ixxvi Table of Cases. § n. page Kelly a. Hart, 83 Pa. 286 1877 64 4 270 Kelly a. Howell, 149 Pa. 473 s. c. 24 A. 224 1892 10 13 61 Kelly a. Walsh, 42 Barb. 98 s. c. 27 How. Pr. 559 1864 109 9,6 533 Kemp V. Carnley, 3 Duer I N. Y 1853 135 2 678 f 76 14 346 Kendall V. Hamilton, 4 Appeal Cas. 504 1879 ] 77 3 357 I 91 7 398 Kennady a. Mecutchen, 3 Dutch 230 N. J i8;8 130 9 647 Kenney v. Altvater, 77 Pa. 34 1874 181 i 812 Kenneya. Bank of Lex'ton, Fayette Nat., 41 Ky 133. .1880 200 4 856 Kenney V. Howard, 68 Vt. 194 s. c. 34 A. 7C0 i8g6 188 2,a 834 Kepler v. Erie.Dime Sav. & Loan Co., loi Pa. (102.. 1882 115 3 571 Kerper V. Wood, 48 O. St. 613 s. c. 29 N. E. 501 1891 188 2,a 833 Kerr a. Gray, 460 S. L. 652 s.c. 23 N. E. 136 Ohio. ..1889 218 i 910 Kerstring a. Groth, 47 P. 393 Colo 1896 30 2 119 Keyes a. Davis, 38 N. Y. 94 1868 179 3 809 ( 3B. &S.847 1 Kilshaw V. Jukes, ■< 32 L. J. Q. B. 217.. [ 1863 64 4,& 271 I- 9 Jurist N. S. i23i.-t Kimball V. Hamilton Fire Ins. Co., 8 Bosw. 495 N.Y.1861 118 2 595 King a. Alexander, 87 Ala. 642 s. c. 6 S. 382 1889 165 8 764 King a. Morriset, 2 Bur. 891 1759 66 i 276 King V. Post, 12 Colo. 35; s.c. 21 P. 38 1889 134 8,rf 670 King V. Sarria, 69 N. Y. 24 1877 37 a 14; King V. Sutton, 42 Kan. 600 s. c. 22 P. 69; i88g 151 4 730 King V. Wilcomb, 7 Barb. 263 N. Y 1848 114 7 567 King a. Woodruff, 47 Wis. 261 1879 188 5 834 King's Appeal, 9 Pa. 124 1848 109 8,a 527 Kingsbury v. Tharp, 61 Mich. 216 s. c. 28 N. W. 74..1885 21 2 90 Kinney a. Cowan, 33 Ohio St., 442 1878 69 18, a 306 Kinsinger a. Goepper, 39 Ohio St. 529 1883 114 6 566 Kirk V. Hartman, 63 Pa. 97 1869 44 3 176 Kirkwooda. Solomon, 55 Mich. 256 s.c. 21 N.W. 336.1884 178 i 807 Kistler a. Bowman, 33 Pa. 106, 111-12 1859 { ^^ ' ^' <- 90 I 390 Kitchen V. Lee, II Paige Ch. 107 N. Y 1844 151 i 729 Klein a. Shanks, 14 Otto 18 1881 ( '°9 7.-ii6 8 567 9,11 581 51 4 208 52 210 Table of Cases. May a. Adams, 27 Fed. 907 U. S. C. C 1886 Mayberry V. Willoughby, 5 Neb. 368 1877 Mayer a. Bank of Commerce, 42 La. An. 1031 s. c. 8 S. 260 i8go Mayer et al a. Hahlo, 102 Mo. 93 s. c. | '^ ^■'^- ^°4 1 1800 •■ 15S.W. 750 -• Mayo a. Barker, 129 Mass. 517 1880 Mayou, ex parte, 4 De G. J. & S. 664 1865 McAuliffe a. Clarke, 81 Wis. 104 s. c. 51 N.W. 83 1892 McAvoy V. Wright, 137 Mass. 206 1884 McBurney a. Cox, 2 Sandf. 561 N. Y 1849 McCampbell a. WriRht, 75 Tex. 644 s. c. 13 S. W. 295 1890 McCliesney a. Bank of Brooklyn City, 20 N.Y. 240.. 1859 McCleery v. Thompson, 130 Pa. 443 s. c. 18 A. 735..1889 McClintoch a. Noble, 2 W. & S. 152 Pa 1841 McClurea. Carter, 38 S. W. 585 Tenn 1897 McClurea. Porter, 15 Wend. 187 ■ 1836 McCormick v. Stofer, 12 S. W. 151 Ky 1889 57 Pa. 54 1868 55 Pa. 252 1866 2 n. page McCormick's Appeal, McCowin V. Cubbison, 72 Pa. 358 1872 McCoy a. Potter, 26 Pa. 458 1856 McCready v. Schenk, 41 La. An. 456 s. c. 6 S. 517... 1889 *McCredy v. Vanneman, Pen. 870 1811 McCrimraon v. Linton, 4 Colo. Ap. 420 s. c. 36 P. 300 1894 McCruden v. Jonas, 173 Pa. 507 s. c 1895 McCuUough v.Guetner, i Binn. 214 Pa 1807 McCutcheon a. Gardner, 4 Beav. 534 1842 McCutcheon a. McGee, 82 Ga. 788 s. c. 9 S. E. 785.. 1889 McDonald a. Smith, i South. 103 i8i8 McDonald a. Thompson, 84 Ga. 5 s. c. 10 S. E. 448 1889 McDowell a. Hilton, 87 N. C. 364 1882 McEwen, in re, 11 Nat. B'kruptcy Reg. 11 1875 Ixxxiii 76 I 337 182 8 818 84 6 375 69 7 301 169 4 778 f 108 t-IIO 6 508 5 537 10 8 57 47 I 189 116 8 580 183 3 821 181 3 813 126 3 628 133 3,* 659 69 n 303 7 2 44 34 2 134 f 10 7 56 ln7 l,e 589 f 109 7,b 526 ]i67 2 770 V207 I 871 ri82 1 187 4 817 4 830 139 2 691 187 2 829 76 2 340 105 9,a 482 109 II 534 123 i,d 613 15; 4 744 104 6 467 76 5 341 150 I 726 125 4 621 |I07 •-197 3 497 I 848 Table of Cases. McFall a. Williams, 2 S. & R. 280 Pa , 1816 McGannon a. Vaughan, 52 Ark. 244 s. c. 12 S. W. 537 1889 McGee v. McCutclieon, 82 Ga. 788 s. c. 9 S. E. ySs-iSSg McGilvray v. Moser, 43 Kan. 219 s. c. 23 P. 96 1890 McGovern a. Yoho, 42 O. St. 11 1884 Mcprath a. Beaver, 50 Pa. 479 1865 McGregor v. Cleveland, 5 Wend. 47; N.Y 1830 Mclnroy v. Hargrove, 16 L. T. 509 1867 Mcintosh a. Robinson, 3 E. D. Smith, 221 N. Y 1854 McKee v. Bank of Mt. Pleasant, 7 Ohio 463 1836 McKee v. Hamilton, 33 Ohio St. 7 ^..1877 McKesson a. Adams, 53 Pa. 81 1866 McKinney v. Brights, 16 Pa. 399 1851 McKinnis a. Harper, 53 Ohio 434 s. c. 42 N. E. 251. .189; McKnight v. Ratcliff, 41 Pa. 156 1863 McKnight a. Robbins, i Hal. Ch. 645 E. & A. N. J..1847 McLaughlin v. Mulloy, 47 P. 1031 Utah 1897 McLean a. Hobbs, 117 U. S. 567 1886 McLean, in re, 15 Nat. B'kr'cy R«g. 341 1876 McLeod a. Napier, 9 Wend. 120 N. Y 1832 McLewee V. Hall, 103 N. Y. 639 1886 McMahon v. O'Donnell, 5 C. E. Gr. 306 N. J 1869 McManus a. Tracy, 58 N. Y. 257 1874 McNaira. Cumpston, i Wend. 457 N. Y 1828 McNaughten v. Partridge. 11 Ohio 223 1842 McNaughton's Appeal, loi Pa. 550 1882 McStea v. Matthews, 50 N. Y. 166 1872 *Mears a. Helsby, 5 B. & C. 504 1826 Meason v. Kaine, 63 Pa. 33; 1869 M. E. Church a. Bullit, 26 Pa. 108 i8;6 Mecutchen v. Kennady, 3 Dutch 230 N. J 1858 Medera a. Sheridan, 2 Stock. 469 E. & A. N. J 1855 Meech V. Allen, 17 N. Y. 300 1858 Meehan v. Valentine, 29 F. 276, 145 U. S. 611 s. c. 12 U. S. 972 1892 Meier v. Bank of Cardington, First Nat., 45 N. E. 907 Ohio 1896 Meigs a. Billing, 53 Barb. 272 N. Y 1869 Ixxxiv i n. page 81 2 366 44 I./ 172 104 6 467 211 3," 886 84 2 374 24 I lOI 44 7 179 76 25 351 49 2 197 212 I 889 121 4 608 128 3 634 12 I 65 172 3 788 12; I 620 146 I 717 67 9 282 130 5 646 36 I 140 206 I 867 191 I 838 64 2 269 60 I 253 48 3.« 193 67 13 285 7 4 45 139 I, a 691 19 4 86 17 3 80 148 2 720 10 6 56 125 I 620 109 9," 534 130 9 647 66 4 277 197 2 849 59 3 251 130 7 646 134 8 668 Table of Cases, Meily v. Wood, 71 Pa. 488 1872 Menagh v. Whitwell, 52 N. Y. 146 1873 Menard a. Fountain, 53 Minn. 443 s. c. 55 N. W. 601. .1893 Meng a. Pleasants, i Dall. 380 Pa 1788 Meranda a. Rogers, 7 O. St. 179 1857 Merrall v. Dobbins, 169 Pa. 480 s. c. 32 A. 578 189; Merrick v. Gordon, 20 N. Y. 93 1859 Merrill v. Green, 55 N. Y. 270 1873 Merritt v. Walsli, ; Tiffany 685 1865 Mershon v. Hobensack, 2 Zab. 372 N. J 1850 Merwin v. Playford, 2 Rob. 702 N. Y 1865 Meyer a. Elgin Watch Co., 30 Fed. 657 Mo 1887 Meyer v. Sharpe, 5 Taunt, 74 1813 Meyer a. Stiles, 7 Lans. 190 N. Y 1872 Meylert a. Evans, 19 Pa. 402 1862 *Miersa. Wilson, 10 C. B. N. S. 348 1861 Mifflin V. Smith, 17 S. & R. 165 1827 Miles a. Strong, 4; Conn. 52 1877 Miles V. Wann, 27 Minn. 56 s. c. 6 N. 417 1880 Millender a. Ferguson, 32 W. Va. 30 s. c. 9 S. E. 38..1889 Miller V. Bank, Consolidation, 48 Pa. 514 1865 Miller a. Bannister, 32 A. 1066 N. J 189; Miller V. Brigham, ;o Cal. 615 187; Miller a. Caldwell, 127 Pa. 442 s. c. 17 A. 983 1889 Miller a. Dungan, 4 E. C. Gr. 219 N. J 1868 Miller a. Gale, 54 N. Y. 536 1874 Miller v. Glass Works, 172 Pa. 70 s. c. 33 A. 350 1895 Miller a. Jackson, i Dutch go N. J 1855 Miller a. Johnson, 16 Ohio 431 1847 Miller a. Kingsbury, 128 111. 45 s. c. 21 N. E. 209 1889 Miller V. Marx, 65 Tex. 151 1885 Miller V. Reed, 27 Pa. 244 1856 Miller v. Sims, 2 Hill. 479 S. C 1834 Miller v. Vermurie, 7 Wash. 386 s. c. ( '^^ ^- "° ^- 1 1893 •-35 P. 600.... J Millers a. Wynne, 61 Ga. 345 1878 Millett V. Stringer, 17 Abb. Pr. 152 N.Y 1858 Ixxxv g n. page 113 7 557 10; 4 479 109 1,6 519 no 4 537 .171 7,3 786 10 14 61 136 3 682 202 3 860 50 I, a 200 62 i,e 260 152 3 731 67 3 280 69 II 302 59 2,* 248 135 I 677 27 4 114 69 10 302 123 i,d 6i3 118 i,a 595 76 19 349 171 S."^ 785 91 2 396 94 I,* 403 131 5 653 19 3 86 /105 5 •-106 7 480 491 52 212 134 7,i 668 175 4 795 139 6 694 142 4 703 66 II 284 187 I 829 58 3 241 ( 63 d I gi I 266 395 140 I 697 49 5 198 105 12 484 41 2 159 Table of Cases. § n. page Milligan a. English, 27 Neb. 326 s. c. 43 N. W. 120..188C) 220 3,6 916 Mills a. Clarke, 36 Kans. 393 s. c. 13 P. 569 1887 162 4 758 Mills a. Cummings, I Daly 520 N. Y 1866 61 3 255 Milwaukee Harvester Co. v. Finnegan, 43 Minn. 83 s. c. 45 N. W. 9 1880 44 i,e 172 Mitchell a. Palmer, 2 Mylne & Keene 665 1834 43 i 168 Mitchell V. Ram melsberger, 29 Ohio St. 22 1875 217 i 907 Mitchell a. WaplesPlatter Co., 3; S. 200 Tex 1893 104 2 463 Mitchell a. Warner, 128 Pa. 153 s. c. 18 A. 337 1889 | '^ ^ ^^ 1 115 16 574 Mittnightv. 'Smith, 2 C. E. Gr. 259 N. J 1865 109 5,c 523 Mize a. Westbrook, 35 Kan. 229 s. c. 10 P. 881 i885 47 i 189 Mohawk & Hudson R. R. v. Niles, 3 Hill 162 N. Y.1842 62 i,e 261 Moles V. O'Neill, 8 C. E. Gr. 207 N. Y 1873 184 i 82; Moir a. Emerick, 124 Pa. 489 1889 34 3 134 Moist's Appeal, 74 Pa. 166 1873 88 3 383 Moley V. Brine, 120 Mass. 324 1876 31 6 124 Molineaux V. Reynalds, 33 A. 536 N. Y 1896 34 i 133 Mollwo V. Court of Wards, L. R. 4 P. C. 419 1872 64 4,1; 271 {109 i,c 520 no 4 537 199 3 853 Monteath a. Bank, i Denio 402 N. Y 1845 44 9 180 Moore V. Davis, 11 Ch. D. 261 1879 45 183 Moore V. Gano, 12 Ohio 300 1843 162 2 757 Moore V. Hepburn, 5 Pa. 399 1847 83 I 371 Moore a. Hubbard, 67 Vt. 532 s. c. 32 A. 46; 189; 100 5 427 Moore V. Huntington, 7 Hun. 425 1876 67 11 283 fii8 I 595 Moore a. Sloan, 37 Pa. 217 ..i860 J 13; i 677 (■ 177 4 804 Moorehead V. Gilmore, 77 Pa. 118 ....1874 131 7 653 Moore's Appeal, 34 Pa. 411 1859 88 3 382 More a. Hollemback, 44 N. Y. Sup'r Court 107 1878 41 2 159 Morgan a. Alexander, 31 Ohio St. 546 1877 142 5 703 Morgan V. Farrell, 58 Conn. 413 s. c. 20 A. 614 1890 45 • 185 Morgan V. Schuyler, 79 N. Y. 490 1879 214 i,a 8g6 Morgenstern v. Thrift, 66 Cal. 577 s. c. 6 P. 689 1885 47 3 iQO Moriarty V. Bailey, 46 Conn. 592 1879 171 5, a 784 Merrell a. Randall, 2 C. E. Gr. 343 N. J 1866 177 10 805 Morrell a. Ryan, 21 Rep. 273 Ky 1885 40 4 156 Morris V. Allen, I McCart. Ch. 44 N. J i86i 169 4 777 Ixxxvi Table of Cases. § n, page Morris a. Bank, i8 Phila. 340 i885 68 2 289 Morris a. Cummings, 25 N. Y. 62; 1862 160 5 754 Morris a. Davis, 10 Q. B. D. 436 1883 77 i,e 357 Morris V. Pectcham. 51 Conn. 128 1883 22 i gi Morriset V. King, 2 Bur. 8gi 1759 66 i 276 Morrison V. Atwell, 9 Bosw. 503 N. Y 1862 174 2 793 Morrison a. Sweet, 7 E. Rep. 389 N. Y 1886 2n 4 887 Morse a. Gribb, 77 Wis. 322 s. c. 46 N. W. 126 1890 104 8 469 Morse a. Dyer, 10 Wash. 492 s. c. 39 P. 138 1895 114 i 562 Morse a. Page, 128 Mass. 99 1880 140 4,1, 6g8 Morse V. Wilson, 4 Term. 353 1791 66 ; 278 Mortimer a. Noble, 4 W. N. C. 300 Pa 1877 125 10 622 Morton a. Pulford, 62 Mich. 25 s. c. 28 N. W. 716 1886 10 ; 56 Moser a. McGilvray, 43 Kans. 219 s. c. 23 P. 96 i8go 211 3, a 886 Moses V. Hatfield, 3 S. E. 538 S. C 1887 121 i 606 Mosgrove V. Golden, loi Pa. 605 1882 76 3 340 Mudgett a. Bank of Commonwealth, 44 N. Y. 514.. .1871 130 4 644 Muir V. Bank, City of Glasgow, 4 H. L. 337 1879 73 2 324 Muira. Parkhurst, {^t^\ ^- 3°7 N- J; 18481 ^g ^ g 1.3 Hal. Ch. 555 N. J 1849' Muir a. Tellers, Pen. 749 N. J 1811 125 4 620 Mulloy a. McLaughlin, 67 P. 1031 Utah 1897 130 5 646 Mulock a. Smith, i Roberts 569 N. Y 1863 182 4 817 Mumford V. Nicholl, 20 Johns. 6ii N. Y 1822 67 i 279 Munro V. Whitman, 8 Hun. 553 N. Y 1876!^^ ^ '^7 1. 57 4 234 Munson a. Ford, I South. 93 1818 76 5 341 Munster V. Cox, 10 Appeal Cases 680 1885 77 3 358 Murdock a. Frazer, 6 H. L. 85; 1881 74 8 331 Murphy V. Craig, 76 Mich. 155 s. c. 42 N.W. iog7.... 1889 62 i 259 Murphy a. Tait, 80 Ala. 440 s. c. 2 S. 317 1887 100 g,& 429 Murray v. Bogert, 14 Johns. 318 N.Y 1817 { '''' r8 C. E. Gr. 127 N. J 1872 217 8 909 Murray V. Elston,UC. E.Gr. 310 N.J \^ lE.&A.gC. E.Gr. 589N.J.i ^^ ^ ^^ Murray a. Fisher, i E. D. Smith, 341 N. Y i8;o 13; 3 679 Murray a. Harris, 28 N. J. 574 1864 | '^l Y '"^^ •- 106 6 490 Murray v. Herrick, 171 Pa. 21 s. c. 32 A. 1125 189; 158 2 751 Murray a. Watson, 8 C. E. Gr. 257 N. J 1872 216 2 904 Murray, in re, 13 Fed. 5 50 1882 6923 309 Ixxxvii 2 795 4 887 Table of Cases. Murrell V. Murrell, 33 La. 1233 1881 Mutrie a. Binney, 12 App. Cases 186 1886 Muzzey a. Brundred, i Dutch 268 N. J 1855 Muzzy V. Whitney, 10 Johns. 226 N. Y 1813 Myers a. Avery, 60 Miss. 368 1882 Myers v. Nell, 4 W. N. 229 Pa 1877 Myers V. Smith, 29 Ohio St. 120 1876 Myers v. Tyson, 43 P. 91 Kans 1896 Myler a. Smith, 22 Pa. 36 1853 Myley a. Bank of Lancaster, 13 Pa. 544 1850 Nanson v. Gordan, L. R. i App. Cas. 195 1876 Napier v. McLeod, 9 Wend. 120 N. Y 1832 *Nasha. Nixon, 12O. St. 647 1861 Nathanson v. Spitz, 31 A. 690 189; Negley a. Ihmsen, 25 Pa. 297 185; Neimeyer a. Courtney, 33 Neb. 796 s. c. 51 N. W. 234 1892 Neiss a. Vetsch, 69 N. W. 315 Minn i8g6 Nell a. Myers, 4 W. N. 229 Pa 1877 Nelson a. Tomlinson, 49 Wis. 679 i88o Nesham a. Barry, 3 C. B. 641 1841 Newberry a. Cheney, 67 Cal. 126 s. c. 7 P. 445 1885 Newbold v. Wright, 4 Rawle, 205-6 Pa 1833 Newcomet V. Brotzman, 6g Pa. 3 4 1871 Newell V. Cochran, 41 Minn. 374 s. c. 43 N. W. 84. ..1889 Newkirk a. Davis, 5 Denio 92 N. Y 1847 Newman a. Bell, 5 S. & R. 78 1819 Newman a. Rankin, 107 Cal. 602 s. c. 40 P. 1024 1896 Newman v. Richardson, 9 Fed. Rep. 865 1881 Newsome v. Coles, 2 Camp. 617 1811 New York Mut. Life a. Cohen, 50 N. Y. 611 :..i872 New York & New Haven R. R. a. Straiton, 2 E. D. Smith 184 1853 Nibletta. Hoare, i Q. B. D.781 1891 Nicholl a. Mumford, 20 Johns. 611 N. Y 1822 Nichols V. White, 85 N. Y. 531 1881 Nicholson v. Leavitt, 4 Sandf. 252 N. Y 1850 Nickerson V. Spindell, 41 N. E. 105 Mass 1895 Ixxxviii 8 n. page 217 2 907 31 2 121 59 2,1 248 59 14 246 75 2 335 94 2 404 221 2 918 104 I 463 |I34 I 662 9 670 113 7 556 209 I 874 191 I 838 100 9,rf 429 96 4 410 130 3 644 102 i,& 444 128 8 635 94 2 404 160 3 753 58 l,c 239 76 18 349 4 2 38 181 813 155 744 126 630 f 107 496 liri 544 214 2,<: 897 129 638 180 811 16 77 62 I,« 2CI 77 358 67 279 182 816 174 792 76 341 Table of Cases. ? n. page Niles a. Mohawk & Hudson R. R., 3 Hill 162 N.Y...1842 62 i,e 261 Nimick's Estate, in re, 36 A. 350 1897 183 i 821 Nisbet V. Patton,4Rawle 120 Pa 1833 143 i 706 *Nixon V. Nash, 12 Ohio St. 647 1861 100 ^,d 429 Noakesv. Barlow, 26 L. T. 136 s. c. 20 W. R. 388... 1872 11 i 63 Noakes V. Smith, i Yeates 238 Pa 1793 116 i; 582 Noble V. McClintosh, 2 W. & S. 152 Pa 1841 133 3,& 659 Noble V. Mortimer, 4 W. N. C. 300 Pa 1877 125 10 622 Noble a. Scharff, 67 Miss. 143 s. c. 6 S. 843 1889 84 5 375 Nolan Co. v. Simpson, 74 Tex. 218 s. c. II S. W. IC98 1889 118 4 596 Noland V. Olbins, 13 Petersdorf 106 1816 62 i,/ 262 Korcross a. Brewer, 2 C. E. Gr. 291 N. J 1865 219 2 913 North V. Bloss, 30 N. Y. 374 1864 76 ii,a 344 Northern Ins. Co. v. Potter, 63 Cal. 157 1883 go 3 391 Noyes a. Denton, 6 Johns. 295 N. Y 1810 123 i,c 613 Nugent V. Allen, 9; Tenn. 77 s. c. 32 S. W. 9 1895 ( '^^ 5,3 666 •- 190 2 837 Oakley v. Pasheller, 4 CI. & F. 207, 10 Bli. N. S. 548 1836 Olbins a. Noland, 13 Petersdorf ic6 1816 O'Donnell a. McMahon, 5 C. E. Gr. 306 N. J 1869 Ogden V. Astor, 4 Sandf. 311 N. Y 1850 Oliphant v. Matthews, 16 Barb. 608 N. Y 1853 Oliver v. Forrester, 96 111. 31; 1880 Onderdonk a. Hutchinson, 2 Hal. Ch. 277 N. J 1847 Onderdonk v. Hutchinson, 2 Hal. Ch. 632 E. & A. ..1849 O'Neil a. Moles, 8 C. E. Gr. 207 N. J 1873 Onontagon River Imp. Co. a. Turner, 77 Mich. 603 s. c. 43 N. W. 1062 1889 Oram v. Rothermel, 98 Pa. 300 1881 Orrv. Ferrell, 68 Tex. 638 s. c. 5 S. W. 490 1887 Orr a. Lee, 70 Cal. 398 s. c. 11 P. 74; 1886 Orsee a. Smith, 42 N. Y. 132 1870 Orser a. Pettee, 6 Bosw. 123 N. Y i860 Osborn v. Fitzgerald, 26 Neb. 574 s. c. 42 N. W. 418 1880 Osborne v. Barge, 29 Fed. 72; 1887 Osburn v. Farr, 42 Mich, 134 1879 Ixxxix 153 5 734 62 ly 262 60 I 233 54 I 220 76 21 350 177 I 803 192 2 840 192 2 840 184 I 825 9 2 49 87 3 381 136 I 682 76 I 338 106 3 489 135 I 677 22 I 90 135 4 680 76 9 343 Table of Cases, Otis V. Sill, 8 Barb. 102 N. Y 1862 Ouachita Belle a. Wilmont, 23 La. An. 607 1880 Owen V. Body, ; A. & E. 28 1836 Owens V. Mackall, 33 Md. 372 1870 Oxley a. Tucker, ; Cranch 34 1809 Oyster V. Short, 177 Pa. 594 i8g6 Paddock a. Topping, g2 111. 92 1879 Page V. Frye, 2 B. & P. 240 1800 Page V. Morse, 128 Mass. 99 1880 Page V. Thomas, 43 Ohio St. 38 • 188; Paige V. Paige, 32 N. W. Rep. 360 Iowa 1887 Palmer v. Mitchell, 2 Mylne & Keene 66; 1834 Palmer v. Purdy, 83 N. Y. 144 1880 Palmer v. Seligman, 77 Mich. 305 s. c. 43 N. W. 974.1889 Palmer v. Stephens, i Denio 471 N. Y 184; Pardee V. Markle, in Pa. 551 s. c. 5 A. 36 1886 Parke V. Smith, 4 W. &■ S. 290 Pa 1842 Parker a. Barker, i T. R. 287 1786 Parker v. Canfield, 37 Conn. 251 1870 Parker a. Courson, 39 W. Va. 521 s. c. 20 S. E. 583 1894 Parkers, in re, 19 Q. B. D. 84 1887 n ,u <. Ml- f 3 Hall. Ch. 307 1848^ Parkhurstv. Muir,| 3 Hal. Ch. 555 1849J Parkins a. Ross, L. R. 20 Eq. 331 1875 Parks a. Manville, 7 Col. 128 s. c. 2 P. 212 1883 Parmalee V. Wiggenhorn, 6 Neb. 322 1877 Parsons V. Crosby, 5 Esp. igg 1805 Parsons V. Hayward. 4 DeG. F. & J. 474 1862 Parrish a. Saunders, 86 Va. 592 s. c. 10 S. E. 748... 1890 Partridge a. Mason, 66 N. Y. 633 1876 Partridge V. McNaughten, n Ohio 223 184? Partridge v. Wells, 3 Stew. 176 N. J 187^ Paschal a. Slade, 67 Ga. 541 1881 Pascheller a. Oakley, 4 CI. & F. 207; loBli. N. S. 548 1836 Paterson v. Arnold, 45 Pa. 410 1863 Patrick V. Weston, 22 Colo. 45 s. c. 43 P. 446 1895 Patterson v. Brewster, 4 Edw. Ch. 352 N. Y 1844 Patterson v. Burton, Pennington 717 N. J 1810 xc i n. page 116 19. 583 126 7 630 59 2,0 250 72 2 322 107 2 497 109 10 534 20 3 88 105 II 484 140 4,^ 698 115 10 572 116 14 582 43 I 168 153 3 734 139 5,» 693 135 3,3 680 155 I 740 121 2,a 607 71 I 318 60 2 253 44 2 175 47 3 189 184 2 825 59 2,C 24; 51 4 207 148 I 720 48 4 (94 212 5 890 ro4 lo,b 472 J 38 5 686 139 I, a 691 114 .2 563 69 T7 304 15? 5 734 24 4 103 188 I 832 8 I 47 159 J 752 Table of Cases. Pattison V. Blanchard, 5 N. Y. 186 1851 Patton V. Leftwich, 86 Va. 421 s. c. 10 S. E. 686 1889 Patton a. Nisbet, 4 Rawle, 120 Pa 1833 Pautz a. Gauger, 4; Wis. 449 1878 Payne V. Freer, gi N. Y.43 1883 Payne & Go's Assignee a. Banl< of Alexandria, First Nat., 85 Va. 8go s. c. 9 S. E. 153 i88g Peabody a. Harris, 73 Me. 262 1881 Peacoctc V. Gummings, 46 Pa. 434 1864 Pearcea. Renfrew, 68 111. 125 1878 Pearce a. Struthers, ;i N. Y. 357, 365 1873 Pearce a. Williins, 5 Denio 541 N. Y 1848 Pearre a. Rixy, 89 Va. 13 s. c. i; S. E. 498 1892 Pease V. Gole, 53 Gonn. 53 1885 Peck a. Leavitt, 2 Gonn. 124 1819 Peck a. Pepper, 17 R. i. 55 s. c. 20 A. 16 i8go Peck a. Sayre, i Barb. 464 N. Y 1847 Peckham a. Morris, 51 Gonn. 128 1883 Pell a. Bloxam, 2 Wm. Bl. ggg 177; Pelletier v. Gouture, 146 Mass. 269 s. c. 19 N. E. 400 i88g Peltier V. Sewall, 12 Wend. 386 1834 Pelton a. Sisemore, 17 Ore. 546 s. c. 21 P. 667 1889 Penn V. Whiteliead, 17 Graft. 503 Va 1867 Penn'a R. R. v. Duncan, iii Pa. 352 1886 Penn'a R. R. v. St. Louis, Alton & T. H. R. R., 118 U. S. 290 1886 Pennrick a. Thomas, 28 Ohio St. ;; 1878 Penrhyn Slate Go. a. Gook, 36 Ohio 135 1880 Pepper v. Peck, 17 R. L 55 s. c. 20 A. 16 1890 Pepple a. Roberts, 55 Mich. 367 1884 Percival a. Fuller, 126 Mass. 381 1879 Percy a. Fairlamb, 3 P. & M. 217 1875 Percy a. Smith, 5 Dutch 74 N. J .....i860 Perkenpine a. Elton, i E. Rep. 637 Pa 1855 Perkin V. (-44 Neb. iios. c. 62 N. W. 308-1 , Bulter Go., \ 46 Neb. 314 s. c. 64 N. W. 975 1 ^^^ Perkins V. Fisher, 80 Ky. 11 1882 Perkins a. Haney Mfg. Go., 78 Mich, i s. c. 43 N. W. 1073 1889 143 6 707 xci i n. page 62 l,e 261 193 2 841 143 I 7c6 g6 6 411 165 8 764 i6g 2 777 213 3 894 182 6 818 197 I 849 156 2 747 202 2 859 217 9 gcg 137 I 684 112 3 547 14 I 70 156 I 747 108 I 500 220 3 91; 22 I 91 66 I 277 140 4 6g7 67 9 282 10 12 61 142 6 7C4 24 II 104 24 8 103 37 I 147 171 4,b 784 180 3.a 811 108 1 500 91 2 396 129 6 639 74 II 333 27 2 113 154 3 738 108 2 500 168 I 774 Table of Cases. Perrine a. Cowart, 3 C. E. Gr. 457 N. J 1867 Perring v. Hone, 4 Bingham 20, 28 1826 Perry a. Bardwell, 19 Vt. 292 1847 Perry a. Roach, 16 III. 37 1854 Peters a. Cox, 2 Beas. 39 N. J i860 Peterson a. Guillen,/ f ^eg. Int. 112 1874 \ 89 Pa. 163 1879 Peterson v. R. I. & P. Ry. Co., 80 Iowa 92 s. c. 45 N. W. 573 1890 Peterson v. Roach, 32 Ohio St. 374 1877 Peterson a. Townsend, 12 Colo. 491 s. c. 21 P. 6ig..i889 Petit V. Chevelier, 2 Beas. 181 N. J i860 Petry's Appeal, 11 W. N. 512 Pa 1882 Pettee v. Orser, 6 Bosw. 123 N. Y i860 Pettingill V. Jones, 28 Kans. 749 1882 Pettit a. Brown, 178 Pa. 171 1896 Pettyjohn v. Woodruff, 86 Va. 478 s. c. 10 S. E. 715 1890 Phelan a. Collender, 79 N. Y. 366 1879 Phelps a. Filley, 18 Conn. 294 1847 Phillip a. Trowbridge Furniture Co., 86 Ga. 699 s. c. 20 S. E. 4 1893 Phillips a. Abell, 13 S. W. 109 Ky i8go Phillips a. Hutzler, 26 S. C. 126 s. c. i S. E. 502 1887 Phillips V. Reeder, 3 C. E. Gr. 95 N. J 1866 Philpott V. Bechtel, 62 N. W. 174 Mich 1895 Pierce a. Clarke, 42 Mich. 157 s. c. 17 N. 780 1889 Pierce v. Ten Eyck, 9 Mont. 349 s. c. 23 P. 423 1890 Pilcher, succession &f, 39 La. An. 362 s. c. i S. 929... 1887 Pilgrem v. Pilgrem, 18 Ch. D.g3 1881 Pilley V. Robinson, 20 Q. B. D. 155 1887 Pittard a. Bond, 3 M. & W. 357 1838 Pitts V. Spotts, 6S. E. 501 Va 1889 Place V. Sweetzer, 16 Ohio 142 1847 Playford a. Merwin, 3 Rob. 702 N. Y 1865 Pleasants V. Meng, i Dall. 380 Pa 1788 Plumer v. Gregory, L. R; 18 Eq. 621 1874 Plunkett V. Dillon, 4 Houston 338 Del 187; xcii -i n. page 218 I 910 (157 •-164 2 749 I 760 rin \200 6 543 2 855 37 6 142 184 I 825 f "" I 158 j 143 5 707 (-145 I 715 62 i,f 262 132 I 654 100 II 431 177 7,a 804 188 3 834 135 I 677 162 3 758 130 2 643 112 I 546 215 3 900 151 3 729 51 2 206 220 5 917 III 5 542 217 6 908 76' '4 341 212 3 8go 155 I 741 10; g.*^ 483 74 9 332 77 3 359 48 3,'J 193 91 8 398 r 100 I105 9,rf 429 5 480 59 2,k 248 136 3 682 144 I 709 57 4 234 Table of Cases. Pole V. Leask, g Jur. N. 8.829 1863 Pollard V. Anderson, 62 Ga. 46 1878 Pollion V. Secor, 61 N. Y. 456 1875 Pollock a. Dollins, 89 Ala. 351 s. c. 7 S. 904 i88g Pond V. Cummins, ;o Conn. 372 1882 Pool a. Reynolds, 94 N. C. 37 1881 Pooley V. Driver, 5 Ch. D. 458 1876 Pope a. Alderson, i Camp. 404 i8ii Pope V. Cole, 55 N. Y. 124 1873 Pope a. James, 19 N. Y. 324 1859 Poppenhausen a. Riper, 43 N. Y. 68 1870 Porter a. Critchfield, 3 Ohio 519 1828 Porter V. M'Clure, i; Wend. 187 1836 Porter a. Whitman, 107 Mass. 522 1871 Porteus a. Benjamin, 2 H. Bl. 590 1796 Post a. King, 12 Colo. 355 s. c. 21 Pa. 38 1889 Pott V. Eyton, 3 C. B. 32 1846 Potter V. Magee, Pamphlet, U. S. C. C. p. 21-22 1878 Potter V. McCoy, 26 Pa. 458 1856 Potter a. Northern Ins. Co., 63 Cal. 157 1883 Powers a. Purdy, 6 Pa. 492 1847 Powers V. Robinson, 90 Ala, 225 s. c. 8 S. 10 1890 Prentice V. Elliott, 72 Ga. 154 1883 Presby a. Dunham, 120 Mass. 28; 1876 Price V. Groom, 2 Exch. 542 1848 Price V. Spencer, I ^ ™'^; '79-""; "■•■; i87o i in Equity, 9 Phila. 281 Pa 1873 Prichard a. Cooper, 75 L. T. 91, 9; 1883 Princeton & Kingston Turnpike Co. v. Gulick, I Harr. i6i N. J 1837 Pringle v. Leverich, 97 N. Y. 181 1884 Proctor a. Lord, 7 Phila. 630 1870 Prosser v. Hartley, 36 Minn. 340 s. c. 29N. W. i;6..i886 Prouty a. Hanford, 133 111. 339 s. c. 24 N. E. 565 1890 Prouty V. Swift, 51 N. Y. 594 1873 Pruyn v. Black, 21 N. Y. 300 i860 Pugh a. Andrews, 24 L. J. Ch. 58 1855 xciii i n. page 69 10 302 86 6 379 69 I 296 44 2 175 59 2,6 244 52 210 50 3 201 64 I 269 138 3 686 86 5 379 180 2 810 37 3,* 149 123 I, a 612 7 2 44 31 5 124 63 2 267 134 8,rf 670 63 I 267 108 3,4 501 IC39 2,a 520 109 5./ 525 no I 536 ,111 2 541 139 2 691 90 3 391 171 4,a 783 114 4 563 218 2 910 216 2 904 59 2,« 250 165 165 ;} 762 144 3 710 181 5 813 150 4 727 64 4,rf 272 105 9,<: 483 104 4 464 59 2,« 247 94 I.'^ 404 59 2,^ 246 Table of Cases. i n. page Pulford V. Morton, 62 Mich. 2; s. c. 28 N. W. 716... .1886 10 5 56 Pupin a. Harbeck, 123 N. Y. 115 s. c. 25 N. E. 3ii...i8go go 4 391 Purdy a. Palmer, 83 N. Y. 144 1880 153 3 734 Purdy V. Powers, 6 Pa. 492 1847 171 4, a 783 Purple V. Farrington, 119 Ind. 164 s. c. 21 N. E. 453.1889 104 10 471 Purvis a. Hamill, 2 P. & W. 177 Pa 1830 133 3 6;g Putnam a. Raymond, 44 N. H. 160 1862 212 2 889 Putnam V. Wise, I Hill 234 N. Y 1841 12 i 66 Queen V. Robson, 6 Q. B. 137 188; 16 i 77 Quin V. Davis, 78 Pa. 15 1875 4 3 3g Quinn V. Quinn, 81 Cal. 14 s. c. 22 P. 264 ..1889 54 4 222 Quinn a. Stamets, 11 C. E. Gr. 383 N. J 1876 206 3 867 *Radenhurst V. Bates, II Moore 421 ; 2 Bing. 463. ...1826 76 6 342 Rader a. Schuster, 13 Colo. 329 s. c. 22 P. 505 1889 109 $,c 524 Rafferty a. Todd, 3 Stew. 254 N. J 1878 217 7 909 Raiguel a. Wentworth, 9 Phil. 275 1873 166 i,a 766 Raiguel's Appeal, 80 Pa. 234 1876 | '^5 4 722 •■166 I,u 766 Railroad Co. V. Bixby, 55 Vt. 235 1882 ic6 2,* 488 Railroad Co. a. Market Co., 142 Pa. 580.. 1 „ f 24 6 103 s. c. 21 A. 502, g8g / •■ 37 rf 146 Ralph V. Lockwood, 61 Cal. 155 1882 76 18 348 Rammelsbergerv. Mitchell, 2g Ohio St. 22 1875 217 i 907 Ramsdale a. Beckett, 31 Ch. D. 177 1855 88 8 386 Randell V. Morrell, 2 C. E. Gr. 343 N. J 1866 177 10 80; Randolph v. Daly, i C. E. Gr. 313 N. J 1865 | '°7 2 497 •■ 197 3 849 Randolph a. Shafer, gg Pa. 250 1881 6g 3 298 f 109 5>« 524 Rankin a. Blackwell, 3 Hal. Ch. 152 N. J 1848 i 5,^ 525 ^ 197 2 846 Rankin v. Newman, 107 Cal. 602 s. c. 40 P. 1024 i8g6 214 2,c 8g7 Rapier V. Gulf City Paper Co., 64 Ala. 330 1877 25 i 108 Rappleyea a. Dunham, I Harr. 75 N. J 1837 i6i 3 756 Ratcliff a. McKnight, 41 Pa. 156 1863 146 i 717 Rathman a. Bitter, 61 N. Y. 512 1870 ] 109 4,a 69 20 3c 8 522 143 3 703 Table of Cases. Ratzerv. Ratzer, i Stew. 137 1877 Raub V. Smith, 61 Mich. 543 s. c. 28 N. W. 676 1866 Ravencroft a. Heathcot, 2 Hal. Ch. 113 N.J 1847 Rawlinson v. Clarke, 15 M. & W. 292 1846 Raymond a. Harper, 3 Bosw. 29 N.Y 1858 Raymond v. Putnam, 44 N. H. 160 1862 Raymond v. Vaughan, 128 111. 256 s. c. 21 N. E. 566..i88g Raynalds a. Molineaux, 35 A. 536 N. J i8g6 Read v. Bailey, L. R. 3 App. Cas. 94 1877 Read a. Collumb, 24 N. Y. 505 1862 Reade v. Bentley, 4 Kay & J. 657 1858 Reberv. Columbus Machine & Mfg Co., 12 O. St. 175 1861 Rector a. Higgins, 47 Tex. 361 1877 Redman a. Swire, L. R. i Q- B. 536 1876 Reed a. Fletcher, 12; Mass. 312 i88i Reed v. Hollingshead, 8 B. & C. 878 1825 Reed V. Kremer, in Pa. 482 1886 Reed a. Miller, 27 Pa. 244 1856 Reeder a. Phillips, 3 C. E. Gr. 95 N. J 1866 Reeves v. Goff, Pen. 609 N. J 1809 Reg. V. Wortley, 15 Jur. 1137 1851 Reid, ex parte, 2 Rose 84 1814 Reid V. Gardiner, 6; N. Y. 578 1875 Reis V. Hellman, 2; Ohio St. 180 1874 Remel v. Hayes, 83 Mo. 200 1884 Remington a. Edwards, 51 Wis. 336 1881 Renfrew v. Pearce, 68 111. 125 1878 Rensheimerv. Hemingsway, 3; Pa. 432 i860 Renton v. Chaplain, i Stock. 62 N. J 1852 Reppert V. Colvin, 48 Pa. 248 1864 Reuben v. Cohen, 48 Cal. 543 1874 Reynold V. Pool, 84 N. C. 37 1881 Reynolds V. Cleveland, 4 Cowen 282 1825 Reynolds a. Cole, 18 N. Y. 74 i8;8 Reynolds a. Deford, 36 Pa. 325 i860 Reynolds v. Howell. L. R. 8 Q. B. 398 1873 xcv i n. page 2 2 34 10 5 56 185 I 826 59 2,h 246 175 5 796 212 2 889 177 II 806 34 I 133 202 2 859 207 I 871 210 1-2 879 4 880 113 6 556 48 3,a 192 70 I, a 314 197 I S59 153 6 735 188 2, a 833 52 210 69 6 299 70 I, a 314 65 d 266 91 I 395 217 6 908 162 I 757 59 2,k 247 203 I, a 861 219 I gi2 170 I, a 779 69 17 305 96 6 411 202 2 859 ic6 5 490 18; 2 826 182 I 816 172 2 788 52 210 II 2 64 165 8 764 76 II, a 344 123 I 612 Table of Cases. Reynolds a. Stidger, ig Ohio 351 1841 Rhynea. Love, 86 N. C. 572 1882 Rianhard V. Hovey, 13 Ohio 300 1844 Rice V. Jacl* i49 Smith V. Ayer, 13 Otto 320 S. C 1879 74 5 33° Smith a. Bagley, 10 N. Y. 489 1853 217 3 907 Smith a. Bayley, loN. Y. 489 1853 178 2 807 Smith V. Black, 9 S. & R. 142 Pa 1822 84 i 374 Smith a. Boston & Col. Smelting Co., 13 R.L 27 1883 64 2 269 Smith V. Burnham, 3 Sumner 435 U. S. C. C 1838 10 9 58 Smith a. Cady, 12 Neb. 628 s. c. 12 N. 95 1882 76 i 339 Smith a. Calkins, 48 N. Y. 614 1872 171 t,a 782 Smith a. Collins, 78 Pa. 423 1875 48 2 192 Smith a. Craig, 10 Colo. 220 s. c. i; P. 337 1887 95 i 405 Smith a. Davis, 82 Ala. 198 s. c. 2 S. 897 1887 116 i 578 Smith a. Eldrldge, i44Mass. 35 1887 134 i5 673 Smith V. Emerson, 43 Pa. 456 1862 109 8,; 532 ci Table of Cases. Smith a. Faust, 3 Colo. App. $05 s. c. 34 P. 261 1893 Smith V. Felton, 43 N. Y. 418 1870 Smith a. Grace, 2 Wm. Bl. 997 1775 Smith V. Gregg, 9 Neb. 212 s. c. 2 N. 459 1879 Smith a. Helmore, 35 Ch. D. 436, 449 188; Smith V. Hiil, 45 Vt. 372 i8;o Smith a. Hodgman, 13 Barb. 302 N. Y 1852 Smith V. Jackson, 3 Ed. Ch. 28 N. Y 1833 Smith a. Jones, 31 S. C. 527 s. c. 10 S. E. 340 i88g Smith V. Knight, 77 Iowa, 540 s. c. 42 N. W. 438 1889 Smith V. Loring, 2 Ohio 440 1825 *Smith V. McDonald, i South. 103 i8i8 Smith a. Mifflin, 17 S. & R. 165 1827 Smith a. Mittnight, 2 C. E. Gr. 259 N. J 1865 Smith V. Mulock, i Roberts 569 N. Y 1863 Smith a. Myers, 29 Ohio St. 120 1876 Smith V. Myler, 22 Pa. 36 1853 *Smith a. Noakes, i Yeates 238 Pa 1793 Smith a. Orsee, 42 N. Y. 132 1870 Smith a. Parke, 4 W. & S. 290 Pa 1842 Smith V. Percy, 5 Dutch. 74 N. J i86o Smith a. Raub, 6 Mich. 543 s. c. 28 iN. W. 676 1866 Smith a. Robertson, 18 Johns. 459 N. Y 1821 Smith V. Smith, 87 Iowa 93 s. c. 54 N. W. 73 1893 Smith a. Thayer, 116 Mass. 363 1874 Smith V. Walker, 57 Mich. 549 1885 Smith a. Wallerich, 66 N. W. 184 Iowa 1897 Smith V. Watson, 2 B. & C. 401 1824 Smith V. Wright, i Abb. Pr. 243 N. Y 1854 Smith a. Yougheogheny Iron Co., 66 Pa. 340 1870 Snider a. Colhoun, 6 Binney 135 Pa 1813 Snively a. Luce, 4 Watts. 396 Pa 1835 Snodgrass' Appeal, 13 Pa. 471 1850 Snovera. Blair, 5 Hal. 153 N. J 1828 Snyder a. Burnett, 81 N. Y. 550 1880 cil § n. page 44 l,rf 172 134 5,* 666 l 66 3 225 277 76 I 339 / 106 4 1.187 4 489 830 69 13 304 59 3 251 /113 3 I. 116 16, a 554 583 100 II 431 218 6 912 f 130 I 643 \ 171 8,a 786 •-196 3 847 76 5 341 76 19 349 109 5,c 523 182 4 817 221 2 918 (■134 I I 9 662 670 116 15 582 106 3 489 121 2, a 607 27 2 113 10 5 56 84 I 374 104 5 467 128 5 635 214 2,d 898 69 l8,<; 306 27 3 114 44 9 180 10 16 62 113 7 556 100 10 429 f 104 3 464 I 109 9, a 533 182 5 818 68 2 289 Table of Cases. Societe de I'Isere, ; Revue des Societes 266 1887 Society Perun v. Cleveland, 43 Ohio St. 481 188; Solomon v. Kirkwood, 55 Mich. 256 s. c. 21 N. W. 336 1884 Somes a. Doclser, 2 Mylne & Keene 653 1834 Songer a. Harter, 138 Ind. 161 s. c. 37 N. E. 59; 1894 Southern Banking & Traction Co. a. Camp, 25 S. E. 262 Ga 1896 Southern White Lead Co. r 33 N. W. 657 -. ^gg v. Haas, 73 Iowa 399 s. c 1 35 N. W. 494 I " Spalding a. Bowman, 2 S. W. 911 Ky 1887 Sparhawk v. Drexel, i W. N. 560 Pa 1885 Sparman V. Keim, 83 N. Y. 145 i88o Sparrow a. Kohn, 3 E. R. 293 1885 Speck V. Hetlinger, i S. C. Dig. 130 Pa 1886 Speer v. Bishop, 24 Ohio St. 598 1874 Spencer a. Ballou, 4 Cowen 163 N. Y 182; c D ■ / 7 Phila. 179 1870 Spencer a. Price, { ;„ ^^^.^^ ^ pj^i,^ ^g^ p^ ^g^^ Spindell a. Nickerson, 41 N. E. 105 Mass 1895 Spitz a. Nathanson, 31 A. 690 189; Sponeberger a. Feigley, 5 W. & S. 564 Pa 1843 Spotts a. Pitts, 6 S. E. 501 Va 1889 Sprague a. Bank Metropolis, Nat., 5 C. E. Gr. 13 N. J 1869 Sprague a. Hoyt, 103 U. S. 613 1880 Spring Lake Beach Imp. Co. a. Schenk, 47 N. J. 44 s. c. 9 A. 881 i8go Springer a. Janney, 78 Iowa 617 s. c. 43 N. W. 46i..i88g Staats V. Bristow, 73 N, Y. 264 [878 Stambaugh a. The Agr. & Mfgrs. Bank, 13 S. & R. 299 Pa 182; Stamets V. Quinn, ii C. E. Gr. 383 N. J 1876 Stanbridge V. Catanach, 83 Pa. 368 1877 Stanford a. Sweeney, 67 Cal. 635 s. c. 8 P. 444 1885 Stanley a. Hackett, 115 N. Y. 625 s. c. 22 N. E. 745.1889 Stanton v. Vestover, loi N. Y. 265 1886 Stapp a. Strong, 74 Cal. 280 s. c. 15 P. 835 1887 State V. Day, 3 Ind. App. 155 s. c. 29 N. E. 436 1891 State Mutual Ins. Co. a. Houghton, 68 N. W. 142 Mich 1896 68 4 290 ciii i n. page 50 3 202 24 3 102 178 I, a 807 43 I 168 215 3 901 181 4 813 127 2 632 149 I 723 168 3 774 140 4,a 698 76 I7,c 348 47 I [89 70 2 314 8 I 47 165 2 762 165 3 762 76 5 341 96 4 410 156 I 747 91 8 398 199 4 854 109 5./ 525 10 16 62 100 5 428 173 I 790 105 3 479 log S,d 529 206 3 867 125 9 622 76 18 349 52 211 182 5 8i8 213 2 894 104 9 470 Table of Cases. 103 Stauffer a. Doner, i Pa. 203-4, 198 1829 -j *Steara. Johnson, icg Eng. Com. L. Rep. N. S. 341. .1869 47 Stearns a. Dana, 3 Cush. 372 Mass 1849 141 Steel a. Bogue, i Phila. R. go 1850 106 Steel V. Frick, 56 Pa. 172 1867 12 Steelea. Banks, 42 N. W. 883 Neb 1884 183 Steele a. Campbell, 11 Pa. 394 1849 84 Steinbeisser a. Hoffman, n W. N. 384 (C. P. 4) Pa..i88i 194 Steinman a. Latshaw, 11 S. & R. 357 Pa 1824 j ^ Stellwagen a. Graser, 25 N. Y. 315 1862 118 Stephens a. Palmer, i Denio 471 N. Y 1845 135 Sterrett a. Brewster, 31 Pa. 115 1858 ] Stevens v. Bank, Gainesville Nat., 62 Tex. 499 1884 51 Stevens a. Venables, 94 Ga. 281 s. c. 21 S. E. 576. ..1894 151 Stewart V. Abrams, 7 Watts. 448 Pa 1838 | ^ Stewart a. Cassels, 6 App. Cas. 64 i88r 176 *Stewart a. Coulter, 12 S. & R. 252 Pa 1825 134 Stewart v. Robinson, 115 N. Y. 328 s. c. 22N.'E. 160 1889 72 Stidgerv. Reynolds, 19 Ohio 351 1841 212 Stileman a. Cajdwell, i Rawle 212 Pa 1829 179 Stiles v. Meyer, 7 Lans. 190 N. Y 1872 69 StiUman v. Harvey, 47 Conn. 26 1879 137 St. Louis, Alton T. & H. R. R. a. Pa. R. R., r 24 { 118 U.S. 290 1886 \ 37 Stocker v. Brockelbank, 15 Jur. 591, f 59 3 Mac. & Gord. 250 1851 1 60 Stoddard Mfg Co. v. Krause, 27 Neb. 86 s. c. 42 N.W. 913 1889 189 Stofer a. McCormick, 12 S. W. 151 Ky 1889 34 Stone a. Gibson, 43 Barb. 285 1865 63 Stoner v. Stroman, g W. & S. 85 Pa 184; 89 Stoughton v. Lynch, 6 Johns. Ch. 467 N. Y 1815 213 Stout V. Seabrook, 3 Stew. 187 N. J 1878 218 Straiton v. N. Y. & N. H. R. R., 2 E. D. Smith 184.1853 62 Strang v. Bradner, 114 U. S. 55; 1884 145 Straus a. Johnston, 26 Fed. R. 57 1882 \ ^°^ i no dv n. page I 455 2 456 2,C 189 4 701 9 491 I 64 4 822 3 375 I 842 I, a 402 2,12 406 2 596 3,a 680 2 382 7,a 526 3 207 I 729 I, ft 403 2,b 4c6 I 797 7 667 2 320 6 891 I 808 ;o 302 4 685 8 103 I 149 2.; 247 I 253 3 836 2 134 2 267 2 388 6 894 5 912 l,e 261 2 715 l,d 520 4 537 Table of Cases. i n. page Strauss a. Bank, First Nat., 66 Miss. 479 s. c. 6 S. 232 1889 173 4 791 Stringer a. Millett, 17 Abb. Pr. 152 N. Y 1858 41 2 159 Stroman a. Stoner, 9 W. & S. 85 Pa 184; 89 2 388 Strong V. Miles, 45 Conn. 52 1877 171 5,;;? 785 Strong V. Stapp, 74 Cal. 280 s. c. 15 P. 835 1887 213 2 894 Stroud a. Russeli, 12 W. N. 419 C. P. Ptiila 1882 105 i 478 Struthers V. Pearce, 51 N. Y. 357, 365 1873 217 g 909 Sturges a. Cheeseman, 6 Bosw. 520 N. Y i860 | '^° ^ 754 1^213 I 892 Styringa. French, 2 C. B. N. S. 357 1857 67 7 281 Sugg V. Tliornton, 132 U. S. 324 1889 96 3 410 Suilivan V. Campbell, 2 Hail. 271 N. Y 1829 138 i 686 Summerlot v. Hamilton, 121 Ind. 87 s. c. 22 N. E. 973 1889 118 4 596 Sumner a. Buchan, 2 Barb. Ch. 165 N. Y 1847 114 4 563 Sumner V. Hampton, 8 Ohio 428,365 1838 116 14 582 Sun Ins. Co. v. Kountz Line, 122 U. S. S. C. R. 583. .1886 69 12 303 Supplee a. Gavit, 2 W. N. C. 561 Pa 1876 125 9 622 Sutro V. Wagner; 8 C. E. Gr. 388 1873 184 3 825 Suttle a. Rogers, 19 Bradwell, 163 111 1885 69 i8,a 307 Sutton V. Irwine, 12 S. & R. 13 Pa 1824 133 i 658 Sutton a. King, 42 Kans. 600 s. c. 22 P. 69; 1889 151 4 730 Suydam V. Barber, 6 Duer 34 N. Y 1836 84 4 375 Suydam a. Corwin, 24 Ohio St. 209 1873 171 6,e 785 Sweeney V. Stanford, 67 CaK 635 s. c. 8 P. 444 1885 7618 349 Sweet a. Fisher, 67 Cal. 228 s. c. 7 P. 657 1885 12 2 66 Sweet V. Morrison, 7 E. Rep. 389 N. Y 1886 211 4 887 Sweetzer a. Place, 16 Ohio 142 1847 1"°° ^'"^ ^29 1 105 5 480 Swift a. Griggs, 82 Ga. 392 s. c. 9 S. E. 1062 1889 183 5 822 Swift a. Prouty, 51 N. Y. 594 1873 59 2,j 247 Swire V. Redman, L. R. I Q. B. 536 1876 153 6 735 Syers V. Syers, I App. Cas. 174 1876 | ^' ' '^' •■ 57 I 232 Sylvester V. Henricks, 61 N. W. 942 Iowa 1895 104 5 467 Taft V. Church, 162 Mass. 527 s. c. | ^^ N. E. 283 | jg ^ •■41 N. E. 67 ' Tait V. Schwamb, 80 III. 289 1875 32 3 126 Tait V. Murphy, 80 Ala. 440 s. c. 2 S. 317 1887 100 9,6 429 cv Table of Cases. Tannery. Hall, i Pa. 417 1845 Tanner v. Hills, 48 N. Y. 662 1872 Tapscot a. Brown, 6 M. & W. 119 1840 Tarr a. Dodd, 116 Mass. 287 1874 Tasker a. Cookingham, 2 Keyes 454 N. Y i865 Tassey v. Church, 6 W. & S. 465 Pa 1843 Tatum a. Frank, 87 Tex. 204 s. c. 25 S W. 409 1894 Taylor v. Castle, 42 Cal. 367 1871 Taylor V. Corryell, 12 S. & R. 243 Pa 1824 Taylor, ex parte, 2 Rose 175 1814 Taylor v. Henderson, 17 S. & R. 453 Pa 1828 Taylor a. Seelye, 32 La. Ann. in; 1880 Taylor v. Webster, 10 Vr. 102 E. & A., N. J 1878 Teed v. Elworthy, 14 East. 210 1811 Teel a. Howell, 2 Stew. 490 N. J 1878 Tellers v. Muir, Pen. 749 N. J 1811 Tellyett V. Markham, 57 Ga. ii 1876 Templar v. Bank, 26 Fed. 580 i886 Tench v. Roberts, 6 Madd. Ch. 145 1819 Tenney v. Foofe, 95 111. 99 1880 Tennej' v. Johnson, 43 N. H. 144 1864 Tenney v. Simpson, 37 Kan. 353 s. c. 15 P. 187 1887 Ten Eyck a. Pierce, 9 Mont. 349 s. c. 23 P. 423 1890 Terra Cotta Co.'s Appeal, 124 Pa. 367 s. c. 17 A. 4.. 1889 Terrell, ex parte. Buck 345 1819 Tharp a. Kingsbury, 61 Mich. 216 s. c. 28 N.W. 74..1886 Thayer v. Smith, ii5 Mass. 363 1874 Thayer a. Wait, u8 Mass, 473 187; Thielens a. White, 106 Pa. 173 1884 Thomas a. Bank of Salem, Nat., 47 N. Y. 15 1871 Thomas v. Brown, 67 Md. 512 s. c. 10 A. 713 1887 Thomas a Calkett, i Phila. 463 1853 Thomas a. Chapman, 4 Keyes 210 N. Y 1868 Thomas a. Hopkins, 61 Mich. 389 s. c. 28 N. W. 147 1881 Thomas a. Lane, 37 Tex. 157 1872 Thomas a. Lloyd, 79 Pa. 68 1875 Thomas a. Page, 43 Ohio St. 38 1885 Thomas v. Pennrick, 28 Ohio St. 5; 1878 Thompson a. Bank of Buffalo, 121 N. Y. 280 s. c. 24 N. E. 473 i8go Thompson a. Brenton, 20 L. L 133 Dist. C. Phlla....i863 ■ cvi i n. page 131 4," 652 12 I 66 138 2 686 160 3 754 76 13 345 165 7 763 91 4 397 15 I 72 124 I, a 6i6 206 2 867 123 2 614 30 2 119 69 15 304 76 9 342 115 1.5 571 125 4 620 32 I 125 182 I 816 216 2 903 143 3 707 199 3 853 n6 4 578 155 I 741 126 5,a 629 206 4 868 21 2 90 128 5 635 131 I 650 154 2 737 132 3 655 177 12 806 117 5 592 205 2 866 132 I 655 216 I 903 188 7 835 115 10 572 171 4,6 784 102 I,c 445 103 2, a 461 109 5," 523 Table of Cases. Thompson a. Brown, Coxe 2 N. J 17(30 Thompson a. Edmanson, 8 Jurist, N. S. 235 1861 Thompson a. McCleery, 130 Pa. 443 s. c. 18 A. 735. ..1889 Thompson v. McDonald, 84 Ga. 5 s. c. 10 S. E. 448.1889 Thomson v. Campbell, 5 Wilson & Shaw 16 "1 „ Thomson v. Williamson, 7 Bligh. 432 J Thornton a. Sugg, 132 U. S. 524 1889 Thrift a. Morgenstern, 66 Cal. 577 s. c. 6 P. 689 1885 Thursby v. Lidgerwood, 69 N. Y. 198 1877 Tibbals V. Sargeant, 19 McCart. 44 N. J 1862 Tiffany v. Crawford, i McCart. Ch. 278 N. J 1862 Till's case, 2 Neb. 261 1874 Tilton a. Benson, 58 N. H. 137 1877 Todd V. Lorah, 75 Pa. 155 1874 Todd V. Rafferty, 3 Stew. 254 N. J 1878 Tolman v. Hanrahan, 44 Wis. 133 1878 Tomlinson v. Burke, 5 Hal. 295 N. J 1829 Tomlinson v. Nelson, 49 Wis. 679 1880 Tonroe a. Wightman, 4 Taunt. 412 1813 Tooke a. Bryan, 60 Ga. 437 1878 Toppan a. Coddington, ii C. E. Gr. 141 N. J 1875 Topping, ex parte, 4 DeJ. & S. 551 186; Topping V. Paddock, 92 111. 92 1879 Torreya. Fowle, 125 Mass. 289 i88i Townsend a. Autin, Pen. 744 i8n Townsend v. Goewey, 19 Wend. 424 N. Y 1838 Townsend v. Long, 77 Pa. 143 1874 Townsend v. Peterson, 12 Colo. 491 s. c. 21 P. 619.. .1889 Tracy a. Edwards, 62 Pa. 374 1869 Tracy v. McManus, 58 N. Y. 257 1874 Traphagen v. Burt, 67 N. Y. 30 1876 Treadwell v. Williams, 9 Bosw. 649 N. Y 1862 Treat a. Hayes, 178 Pa. 310 s. c. 35 A. 987 1896 Trego V. Hunt, H. L. 7 1895 Tremper V. Conklin, 44 N. Y. 61 1870 Trenton Loc. & Mach. Mfg Co. a. Van Kuren, 2 Beas. 302 N. J 1861 *Tretheway v. Auckland, 2 Saunders 51 1669 cvii H, 11. 134 7,a 668 17 2 79 126 3 628 150 I 726 36 5 141 96 3 410 47 3 190 121 I 606 186 I 827 115 14 573 109 5, J 523 220 3 915 173 I 790 217 7 909 128 I 634 76 2 340 160 3 753 73 I 323 129 5 639 lOI I 434 204 I 863 20 3 88 174 4 793 76 4 341 162 I 757 152 4 731 100 II 431 67 12 284 / 48 %,c 193 \ 67 13 285 10 4 55 / n6 20 •■175 4 583 795 116 16 574 .'155 5 1 214 4 744 898 / 100 8 ••105 2 428 478 45 184 105 7 481 Table of Cases. Trowbridge v. Cross, 117 III. log s. c. 7 N. E. 347. ..1886 Trowbridge Furniture Co. a. Phillip, 86 Ga. 699 s. c. 20 S. E. 4 1893 Trowbridge a. Shaler, i Stew. 595 N. J 1877 True a. Sceva, 53 N. H. 632 1873 Tua V. Carriere, 117 U. S. 201 1886 Tucker a. Isles, 5 Duer 393 N. Y 1856 Tucker v. Oxley, 5 Cranch 34 1809 Tuff, in re, 19 Q. B. D. 88 1887 Tupper a. Labouchere, 11 Moore P. C. 198 1857 Tupper a. Sager, 38 Mich. 258 1878 *Turner v. Jaycox, 40 N. Y. 470 1869 Turner v. Onontagon River Imp. Co., 77 Mich. 603 s. c. 43 N. W. 1062 1889 Turner v. Turner, 5 S. W. 457 1887 Tustin V. Cameron, ; Wharton, 379 Pa 1840 Twisden a. Cleather, 28 Ch. D. 340 1884 Tyler v. Waddington, 58 Conn. 375 s. c. 20 A. 335... 1890 Tyson a. Myers, 43 P. 91 Kans 1896 Uhler V. Browning, 4 Dutch 79 N. J 1859 Uhler V. Semple, ; C. E. Gr. 288 N. J 1869 Ulman v. Griggs, 32 La. An. 657 1880 United Ins. Co. a. Holmes, 2 Johns. Cas. 329 N. Y.1801 United Ins. Co. v. Scott, i Johns. io6 N. Y 1806 United States v. Lewis, 13 Nat. Bankr'cy Reg. 33... 1876 Unruh's Estate, 13 Phila. 337 1880 Vaiden v. Hawkins, 6 S. 227 Miss 1889 Valentine v. Hickle, 3 Ohio St. 19 1883 Valentine a. Meehan, 29 F. 276; 145 U. S. 611 s. c. 12 U. S. 972 1892 Valentine v. Wysor, 123 Ind. 47 s. c. 23 N. E. 1076..1890 Valpy a. Dickinson, 10 B. & C. 128 1829 Van Brunt v. Applegate, 44 N. Y. 544 1871 Vanderbilt a. Briggs, 19 Barb. 222 N. Y 1855 Vanderburgh v. Hull, 20 Wend. 70 N. Y 1838 cviii ? n. page 105 9,a 482 51 2 206 170 3,J 779 46 I 187 179 3 809 141 6 701 107 2 497 (142 3 1.206 2 703 867 73 I 324 44 2 175 174 3 793 9 2 49 212 2 8go 134 10 671 144 I 710 •■ 10 I 38 54 104 I 463 129 2 638 fii6 6 580 *-i69 4 778 37 3.a 151 7 I 43 49 !-<» 196 209 3 875 36 6 141 14 I 70 19 7 87 50 3 251 217 I 907 23 4 93 116 18 583 62 i,« 260 59 2,C 244 Table of Cases. Vanderhorst a. Bank of Njw York, 32 N. Y. 553 1865 Vanderslice a. Commonwealth, 8 S. & R. 452 1822 Van Kuren v. Trenton Loc. & Mach. Mfg. Co., 2 Beas. 302 N. J 1861 Van Leiden v. Wreford, 81 Mich. 606 s. c. 45 N. W. 1116 iSgo *Vanneman a. McCredy, Pen. 870 1811 Vannoy v. Klein, 122 Ind. 416 s. c. 23 N. E. 526 1880 Van Pelt a. Harvey, 4 Bosw. 60 N. Y 1859 f lOI Van Rensselear v. Emery, g How. Pr. 13; N. Y 1854 \ g Vansyckle V. Rorbach, 2 Hal. Ch. 234 N. J 1847 Vaughan v. McGannon, 52 Ark. 244 s. c. 12 S. W. 537 1889 Vaughan a. Raymond, 128 111. 256 s. c. 21 21 N. E. ;66 1889 Vaughn a. Fisher, 75 Wis. 609 s. c. 44 N. W. 831. ..1890 Veal V. Veal, 12 S. E. 297 Ga 1890 Venables v. Stevens, 94 Ga. 281s. c. 21 S. E. 576.. .1894 Vermuriea. Miller, 7 Wash. 386 s. c....-( ^^ ^•"° 1 1893 •■ 35 P. 600 J Vetsch V. Neiss, 69 N. W. 315 Minn 1896 Vice V. Anson, 7 B. & C. 409 1827 Vickeryv. Carvick, Douglas 653 1781 Vignal a. Worsham, 37 S. W. 17 Tex 1896 Vischera. Harris, 57 Ga. 229 1876 Voorhees V. Jones, 5 Dutch. 270 1865 Voorhies a. Hill, 23 Pa. 68 1853 Voorhis V. Childs, 17 N. Y. 35; 1858 'L. R. 7 Ch. 334 1872 L. R. 7 H. L. 333-4 1874 Vyse V. Foster, ? n. page 105 2 478 105 8 481 45 184 96 5 410 76 2 340 68 iS,b 307 150 4 727 lOI I 434 18; I 826 141 I 700 44 I./ 172 177 II 806 218 4,a 911 104 7 467 151 I 729 49 5 198 128 8 635 23 5 94 6 I 41 5 4 40 106 2,a 488 52 2H 69 i8,a 305 86 I 378 40 2 156 42 2 162 L. R. 8 Ch. App. 309 18701 g L. R. 7H.L.318 1874/ Waddell a. Banco de Portugal, 5 App. Cas. 161 1880 168 Waddington a. Tyler, 58 Conn. 375 s. c. 20 A. 33;. ..i860 < '* •- 10 Wade a. Beaton, 14 Colo. 4 s. c. 22 P. 1093 1890 86 Wade V. Rusher, 4 Bosw. 537 N. Y 1859 | '^4 •• 170 Wadsworth v. Duncan, 45 N, E. 132 111 1896 24 cix 2 774 I 38 I 54 6 379 3 711 3.1 779 I 102 Table of Cases. ■ ? n. page Wagnera. Sutro, 8 C. E. Gr. 388 1873 184 3 825 Wait V. Thayer, 118 Mass. 473 1875 131 i 650 Wakeham, in re, 13 Ch. D. 43 1884 210 6 881 Waland v. Elkins, i Stark. 272 1816 62 , i,/ 262 Walden V. Sherburne, 15 Johns. 4ogN. Y 1818 57 4 233 Walker a. Aylett, 92 Va. 540 s. c. 20 S. E. 226 i8g6 . 16; 7 764 Walker a. Bank, Central City Savings, 66 N. Y. 425 1877 24 3 102 Walker V. Bean, 34 Minn. 427 s. c. 26 N.W. 232 1886 124 i,J 617 Walker V. Fitts, 24 Pick. 191 1837 12 i 66 Walker a. Jones, 103 U. S. 444 1880 74 3 329 Walker a. Smith, 57 Mich. 549 188; 214 2,rf 898 Walker's Appeal, 4 Pennypacker, 452 Pa 1884 221 i 918 Wallace V. Fairman, 4 Watts. 378 Pa 1835(^5 3 407 t.153 2 734 Wallace a. Welker, 31 Ga. 362 i860 41 4 159 Wallace a. Yeager, 57 Pa. 565 i868 156 i 747 Wallerich V. Smith, 66 N. W. 184 Iowa 1897 69 i8,<; 306 Walsh V. Adams, 3 Denio 125 N. Y 1846 106 9 491 Walsh a. Henn, 2 Edw. Ch. 129 N. Y 1833 177 6 804 Walsh V. Kelly, 42 Barb. 98, s. c. 27 How. Pr. 559 N. Y 1864 log 9,6 533 Walsh V. Lennun, 98 111. 27 1881 122 3,c 610 Walsh a. Merritt, 5 Tiffany, 685 1865 67 3 280 Walstromv. Hopkins, 103 Pa. 118 1883 { ^5 5 407 t.153 I 734 Walter V. Ginrich, 2 Watts. 304 Pa 1834 | ^' ^ ^^^ l 89 I 388 Walter's Appeal, I Chester Co. Reps. 278 Pa i88i | ^5 5 109 •■109 S,b 533 Waltman a. Gay, 89 Pa. 453 1879 124 1,6 617 Wands a. Ensign, i Johns. Cas. 171 N. Y 1799 76 46 Wann a. Miles, 27 Minn. 56 s. c. 6 N. 417 1880 91 2 396 Wapples-Platter Co. V. Mitchell, 35 S. 200 Tex 1893 104 2 463 Ward a. Ellis, 21 W. R. 100 1872 22 3 91 Ward V. Garnet, 6 Duer 257 1857 49 4 197 Warden a. Bryant, 2 Exch. 479 1848 165 5 762 Warner a. Wood, 2 McCart. 81 N. Y 1862 1^4 5 i35 *■ 177 8 804 Warren a. Com. Bank of Buffalo, 15 N. Y. 577 1837 139 i,a 691 Warrlner V. Mitchell, 128 Pa. 153 s. c. 18 A. 337 1889 I '^ ^ ^^ 1 115 16 574 ex Table of Cases. ? n. page Warring V. Arthur, 32 S. W. 221 Ky 1895 i;8 3 751 Washburn v. Bank of Bellow's Falls, 10 Vt. 278 1847 ( '°9 ^'^ 528 I- III 2 541 Washington V. Washington, 31 S. W. 88 Tex i8q; 30 i 118 Watererv. Waterer, L. R. i; Eq. 402 1873 11? 5 555 Watson a. Dunlap, 124 Mass. 30; 1878 192 i 839 Watson V. Murray, 8 C. E. Gr. 257 N. J 1872 216 2 904 Watson a. Smith, 2 B. & C. 401 1824 27 4 114 Watts a. Everitt, 10 Paige, 85 N. Y 1843 ( ^^ ^' ^°^ t 142 7 704 Waugh V. Carver, 2 H. Bl. 23; 1793 57 4 233 Waydeil V. Luer, 3.Denio4ioN. Y 1846 188 6 834 Weallv. James, 68 L. T. R 515 1893 91 8 398 Weaver V. Shryrocl<, 6 S. & R. 262 Pa 1820 86 4 379 Webb a. Frank, 67 Miss. 462 s. c. 6 S. 620 1889 192 i 839 Webb V. Helion, 3 Robt. 625 N. Y 1864 213 ; 894 j- 107 2 497 Webb, in re, 16 Nat. B'kr'cy Reg. 258.... 1875 ] 200 i 855 1^201 I 857 Webber a. Lewis, 1 16 Mass. 450 1875 i<39 5 854 Weber V. Defor, 8 How. Pr. 502 N. Y 1853 177 2 803 Webster a. Elgie, ; M. & W. 518 1839 48 4 194 Webster a. Manhattan Ins. Co., 59 Pa. 227 1868 105 10 483 Webster a. Taylor, 10 Vr. 102 E. & A. N. J 1878 69 i; 304 Weed a. Blodgett, 119 Mass. 215 1875 128 2 634 Weiss a. Wessels, i66Pa. 400 s. c. 31 A. 247 1895 { 54 i 220 >■ 64 4,a 270 Weissenborn a. Seighortner, 5 C. E. Gr. 172 N. J. ..1869 177 9 805 Weisz V. Davey, 28 Neb. 566 s. c. 44 N. W. 470 1890 44 i,u 171 Weld a. Hymes, 91 Ga. 742 s. c. 17 S. E. looi 1893 14 2 71 Weikerv. Wallace, 31 Ga. 362 i860 41 4 159 Wells V. Ellis, 68 Cal. 243 s. c. 9 P. 80 188; 136 2,a 682 Wells a. Hoeflinger, 47 Wis. 628 1879 128 6 635 Wells a. Partridge, 3 Stew. 176 N. J 1878 114 2 563 Wells a. Shapleigh Hardware Co., 37 S.W. 411 Tex.1896 153 4 734 Wentworth V. Raiguel, 9 Phila. 27; 1873 166 i,a 766 Werts a. Hess, 4 S. & R. 356 1818 24 i loi {PA T ^^C^ I 64 4,a 270 West a. Erb, 19 S. 829 Miss 1896 104 10, a 472 West a. Ross, 2 Bosw. 390 N. Y 1858 121 3 607 Westbrook V. Mize, 35 Kan. 229 s. c. 10 P. 881 1886 47 i i8g cxi Table of Cases, Weston a. Patrick, 22 Colo. 45 s. c. 45 P. 446 189; Westover a. Stanton, loi N. Y. 265 i885 Wetherill v. Commonwealth, 17 W. N. 104 Pa 1885 Wetmore v. Baker, 9 Johns. 307 N. Y 1812 Wetter v. Schlieper, 4 E. D. Smith 707 N. Y ...1858 Wharton v. Ciements, 3 Del. Ch. 239 i868 Wheat V. Rice, 97N. Y. 296 1884 Wheeler, ex parte, Buck. 48 1817 Whitaker v. Richard, 134 Pa. 191 s. c. 19 A. 501 1890 Whitbread a. Janes, n C. B. 406 1851 Whitcomb a. Converse, 119 Mass. 38 1875 White a. Bank, Nat. Exchange, 30 F. 412 U. S. C. C. Mich 1887 White a. Curry, 57 Cal. 185 1885 White V. Hackett, 20 N. Y. 178 1859 White a. Hartley, 94 Pa. 31 1880 White V. Jones, 1 Robt. 321 N.Y 1863 White a. Nichols, 85 N. Y. 531 1881 White V. Thielens, 106 Pa. 173 1884 Whitehead a. Penn, 17 Gratt. 503 Va 1867 Whitman a. Munro, 8 Hun. 553 N. Y 1876 Whitman v. Porter, 107 Mass. 522 1871 Whitney a. Muzzey, 10 Johns. 226 N. Y 1813 Whittaker v. Collins, 34 Minn. 299 s. c. 25 N. W. 622 1885 Whitwell a. Menagh, 52 N. Y. 146 1873 Wiggenhorn a. Parmalee, 6 Neb. 322 1877 Wightman v. Tonroe, 4 Taunt. 412 1813 Wilber V. Sisson, 54 N. Y. 121 1873 Wilcomb a. King, 7 Barb. 263 N. Y 1848 Wilcox V. Dericson, 168 Pa. 333 s. c. 31 A. 108 189; Wilcox V. Kelogg, 11 Ohio 394 1842 Wilcox V. Matthews, 44 Mich. 192 s. c. 5 N. 21; 1880 Wilcoxon a. Andrews, 25 Ch. D. 505 1884 Wild V. Davenport, 48 N. J. Law, 129 s. c. 7 A. 295.1886 Wild V. Dean, 3 Allen 579 Mass 1862 cxii i n. ] page 188 I 832 182 5 8i8 109 8,d 530 62 I./ 261 135 I 677 40 4 i;6 148 6 722 57 4 234 58 l,d 239 139 4 692 59 2,» 250 31 4 123 131 3 652 81 2 366 37 3,'» 148 171 7,& 786 214 3/ 8g8 182 3 8i6 154 2 737 142 6 704 32 2 127 57 4 234 31 5 124 59 2,d 246 143 6 707 105 4 479 109 1,6 519 no 537 171 7, a 786 148 720 73 323 12 66 114 567 72 322 199 853 -205 865 57 4 234 210 3 879 73 I 324 174 4 793 Table of Cases. Wilder a. Heard, 8i Iowa 421 s. c. 46 N. W. 1075 1890 Wiley a. Leslie, 47 N. Y. 648 1827 Wilkes a. Dayton, 5 Bosw. 655 N. Y 1859 Wllkins V. Budd, i Hal. 153 N. J 1822 Wilkins v. Pearce, 5 Denio 541 N. Y 1848 Wilkinson a. Crites, 6; Cal. 559 s. c. 4 P. 567 1889 Wilkinson V. Frasier, 4 Esp. 182 1805 Wilkinson a. Matherson, 79 Me. 159 s. c. 8 A. 684. ..1887 Willettv. Blanford, i Hare 253 1842 Willey a. Bank, 7 Wash. 525 s. c. 35 P. 411 1893 Williams a. Ashley, 17 Or. 441 s. c. 21 P. 556 1889 Williams a. Aspinwall, i Ohio 84 1823 Williams a. Austin, 2 Ohio 61 1825 Williams a. Gary, i Duer 667 N. Y 1853 Williams a. Crary, 2 Ohio 65 1825 Williams a. Dick, 130 Pa. 41 s. c. 18 A. 615 1889 Williams a. Froude, 56 L aw Times Rep. N. S. 441. ..1887 Williams v. Gillies, 7; N. Y. 197 1878 Williams v. Hamilton, i South. 220 N. J 1818 Williams a. Lane, 2 Vern. 277 1692 Williams v. Lawrence, 47 N. Y. 462.... 1872 Williams a. Lewis, 6 Wh. 263 Pa 1841 Williams v. McFall, 2 S. & R. 286 Pa 1816 Williams a. Treadwell, g Bosw. 649 N. Y 1862 Williamson a. Thomson, 7 Bligh. 432 1831 Willing a. Consequa, i Peters 301 r8i6 *Willis V. Green, 5 Hill 232 N. Y 1843 Willis V. Sharp, 113 N. Y. 586 s. c. 21 N. E. 605 1889 Williston V. Camp, 9 Mont. 88 s. c. 22 P. 501 1889 Willoughbya. Mayberry, ; Neb. 368 1877 Wills V. Simmonds, 8 Hun 189; ;i How. Pr. 48 N. Y 1876 Wilmont V. Ouachita Belle, 23 La. An. 607 1880 Wilson V. Balcarres Brook Steamship Co., I Q. B. 422 1893 Wilson V. Block, 164 Pa. 555 s. c. 30 A. 488 1894 Wilson V, Cobb, 2 Stew. 361 N. J. E. & A 1878 Wilson a. Emery, 79 N, Y. 78 1879 cxili i n. page 10 4 55 76 13 346 151 2 729 85 3 377 137 I 684 118 3 596 62 14 260 134 i,& 662 43 b 168 126 7 630 211 2 885 17 I 79 119 2 599 44 8 180 76 26 351 170 2,a 779 76 II 345 125 13 624 50 3 202 10 I 54 134 3 663 5 3 40 67 4 280 83 2 371 81 2 366 116 20 583 175 4 795 36 5 141 85 2 377 6 2 42 72 2,a 321 73 I 324 136 3 682 182 8 818 59 2,m 249 126 7 630 76 5 341 30 I 118 54 I 220 219 2 913 Table of Cases. ? n. page Wilson, ex parte, L. R. 7 Ch. 490 1872 210 6 881 Wilson V. Fichter, 3 Stock. Ch. 71 N. J 185; 177 7.h 804 Wilson a. Gaines, 24 S. E. 828 Va i8g6 63 d 266 WHson V. Miers, I C. B. N. S. 348 1861 118 i,a 59; Wilson a. Morse, 4 Term. 353 i7C)i 66 5 278 Wing a. Ringo, 49 Ark. 457 s. c. 5 S. W. 787 1887 175 i 795 Winslow a. Bank, Belleville Savings, 30 F. 488 1887 85 i 376 Winslow V. Leiand, 128 111. 304 s. c. 21 N. E. 588.... 1889 187 3 829 Winstanley V. Gleyre, 146 111. 27 s. c. 34 N. E. 628...i8g3 27 i 113 Wise a. Putnam, I Hill 234 N. Y 1841 12 i 66 Wisham v. Lippincott, i Stock. 353 N. J 1853 \ ''^ ' '60 U15 4 571 Withers a. Hart, I P. & W 28; Pa 1830 139 j.a 694 Woehr a. Hartman, 3 C. E. Gr. 373 1867 19 8 87 Wolbert V. Harris, 3 Hal. Ch. 605 N. J 1849 211 3,« 886 Wood a. Blair, 108 Pa. 278 1881; 96 i 409 Wood V. Brush, 72 Cal. 224 s. c. 13 P. 627 1887 160 2 753 Wood a. Egberts, 3 Paige Ch. ;i7 N. Y 1832 log 6 525 Wood V. Erie R. R., 72 N. Y. 196 1878 76 i7,b 348 Wood a. Homer, II Cush. 62 Mass 1853 171 2, A 783 Wood a. Kerper, 48 Ohio St. 613 s. c. 29 N. E. 501 i8gi 188 2, a 833 Wood a. Meiley, 71 Pa. 488 1872 113 7 557 Wood V. Scoles, L. R. I Ch. 369 1866 l]^ ^ g^^ Wood a. Sheldon, 2 Bosw. 267 N. Y 1857 217 5 908 Wood V. Warner, 2 McCart. 81 N. Y '^^^{177 8 Sol Wood V. Wood, I Harr. 429 N. J 1838 62 41 Wood a. Woodson, 37 Alb. Law Jour. 389 Va 1888 188 2, a 833 Woodling V. Knickerbocker, 31 Minn. 268 s. c. 17 N. 387 1883 144 4 712 Woodruff V. King, 47 Wis. 261 1879 188 5 834 Woodruff a. Pettyjohn, 86 Va. 478 s. c. loS. E. 71; 1890 112 I 546 Woodson V. Wood, 37 Alb. Law Jour. 389 Va 1888 188 2,a 833 Woodward V. Clark, 30 Kans. 76 1883 44 4 176 Woodward a. Curtis, 58 Wis. 499 1883 i97 i 848 Wookey a. Burton, 6 Mad. Ch. 367 1822 i;i; 3 742 Worsham V. Vignal, 37 S. W. 17 Tex i80 54 40 Worthy v. Goodbar, 53 Ark. i s. c. 13 S. W. 216 1890 47 2,* i8g Wortley a. Reg., 15 Jur. 1137 1851 59 2,k 247 cxiv Table of Cases. ? n. page Wray a. Hanna, 77 Pa. 27 1874 124 g 621 Wreford a. Van Leyden, 81 Mich. 606 s. C.45N. W. 1116 1890 c)6 5 410 Wrenshall V. Cook, 7 Watts. 464 Pa 1838 134 6 667 Wright a. Ferguson, 61 Pa. 258 1869 157 i 749 Wright V. Hooker, 10 N. Y. 51 1854 44 g 180 Wright a. McAvoy, 137 Mass. 2c6 1884 47 i i8q Wright V. McCampbell, 7; Tex. 644 s. c. 13 S. W. 293 i8go 183 3 821 Wright a. Newbold, 4 Rawle 205-6 Pa 1833 42 38 Wright a. Smith, I Abb. Pr. 243 N. Y 1854 44 9 180 Wynne V. Millers, 61 Ga. 345 1878 10; 12 484 Wysor a. Valentine, 123 Ind. 47 s. c. 23 N. E. 1076.. 1890 217 i 907 Yates V. Lyon, 6i N. Y. 344 1874 141 2 700 Yeagerv. Wallace, 57 Pa. 565 1868 156 i 747 Yeoman V. Lasley, 40 O. S. igo 1883 82 48 Yohe V. Barnett, 3 W. & S. 81 1841 34 3 134 Yoho V. McGovern, 42 Ohio St. II 1884 84 2 374 f I A. 162 1 York's Appeal, no Pa. 69 s. c. i 2A 6? I '^^' '^^ ^ ^^^ Yorkshire Banking Co. r L. R. 4 C. P. D. 2041 V. Beaston, |l. R. 5 C. P. D. 109/ ■•'«^° ^6 20 350 Yougheogheny Iron Co. v. Smith, 66 Pa. 340 1870 lo 16 62 Young V. Axtell, 2 H. BI. 242 arguendo 1784 58 i,^ 240 Young V. Brick, Pennington 663 N. J 1810 157 3 749 Young, ex parte, ig Ch. D. 124 1881 77 2,d 357 Young, ex parte, 2 Rose 40 1814 203 2 861 Young V. Frier, I Stock. 465 N. J 1853 log 5,c 524 Yaung V. Hoglan, 52 Cal. 467 1877 160 6 754 Young V. Hunter, 4 Taunt. 582 1812 20 2 88 Zell a. Benjamin, 100 Pa. 33 1882 10 10 59 „ ,,, . fin Pa. 532 1886 213 2 893 /,ellsAppeal,|j26Pa. 329 s. c. 27 A.647 1889 192 4 840 Zimmerman V. Erhard, 83 N. Y. 74 1880 7616 347 Zug & Co., in re C, 34 Leg. Int. 402 1877 "7 i,» 588 INTRODUCTION. am astounded by the statement which both LiNDLEYand Pollock, the leading authors who have written upon the subject, con- cur in making, that the law of partnership is ripe for codification. They intend by this statement to convey the meaning. That the principles of the relation, having been fully established, can be expressed in definitions and applied in formulas. How do they succeed in demonstrating the feasibility of the project? They stumble and halt on the very threshold. The definition of partnership breaks them all up. Having no guiding principle to start with, how can they create a system ? Look at the law of partner- ship as it stands to-day, and try to point out the prin- ciple which underlies the relation. The last English case abandons the only landmark which remained to individualize a partnership.* There is no clue left to *A Under taking a deed for a iuilding contract, with all the rights present and prospective under it, including stock, plant and fixtures, stipulating for a share of Introduction distinguish a partnership from any other agency. The Profession is thrown bacl< on the general doctrine of Principal and Agent. This is like answering the ques- tion, What is an Englishman ? by saying, There is no such person as an Englishman, distinct from any other European. The only way to find out what an English- man is would be to study the general type of the Eu- ropean made up from German, French, Italian, and other stocks, not to mention Turks, and out of the medley extract the Englishman. The relation once relegated to an abstraction, the subject-matter of partnership becomes mythical. Property, the only thing for which the partnership exists, and in which it deals, is discarded as a con- stituent of the relation. But the disputes which arise the net profits, for the destination of the fund, for control of the debtor, allowing him to draw out a salary from the working capital before profits were estimated, and for taking his place, do not, one and all, reveal the traits of a co-partner in the business, but are consistent with the adverse relation of debtor and creditor. By mortgage-deed, July 4, 1878, A advanced money to B, £1500 at a time, payable in 6 months, to carry out B's contract with C for the construction of C's railroad. A stipulated for zo per cent, interest and i-io of the net profits made out of the building contract. B assigned in advance to A all the money and securities he should receive from C, and all his stock, plant and fixtures, and policies of insurance. B covenanted that he would attend to the work, complete it with due expedition, and employ the advances exclusively in the construction of the road. A had power, upon B's non- performance of any condition, or his bankruptcy, to take possession and carry on the work to completion, and B's contracts with C enured to A. A also had a power of sale. B was entitled to draw out, for his services, £1000, in quarterly instalments, before profits were computed, and A's share was charged as an advance. The correspondence between A & B called INTRODUCTION are in reference to the property of the firm, and they cannot be adjusted unless the title is located. Think of formulating the propositions which embody the doctrines of partnership without reference to the original principle out of which they are all evolved, and which give coherence to the relation! It takes something more than a man, although he has been admitted to the Bar, to make a world of partnership out of nothing. theadvances ' working capital,' and A waived repayment until the completion of the contract. Directors of C, in 1881, induced D to advance money to carry on the work, and guaranteed C's bonds for £16,000. In 1882 E re- covered judgment against B, and attached C's debt to B. Notice of A's claim had not then been given to C. In 1883 other creditors attached the debt. B's claim against C was adjusted at £38,000, for which B should take debenture stock and have C's bonds returned. C repaid D the sum advanced B, who was bankrupt. A sued all parties, and claimed priority. Defence: A the partner of B.— A a creditor, not a partner, of B. The ex- clusive application of the advances to the business did not make A a partner, because he had B's personal obligation for repayment, although the evidence showed that A did not rely upon It. The destination of the capital increased the security ! The control of the debtor's use of the money borrowed may be "peculiar,' but it does not make a loan to the business. The power to take possession and complete the contract enforces the security, and makes it effectual. The debtor must efface himself, and let the creditor manage the business, in order not to impair the security ! The stipulation for profits after the loan should be refunded, though unusual, is nothing but a bonus for making the loan. A could, after he had been paid off both principal and interest, still direct and control B in his conduct of the business, in order to gain the stipulated share of profits; but this was a part of the creditor's security ! The allowance to B of £1000 a year for his services is not drawing out of a common fund by the working partner, but a provision made by the creditor, in order to enable the debtor to devote himself exclus- ively to the business, and thereby perfect the security ! Badley v. Consoli- dated Bank, 34 Ch. D, 536 (1886) ; 38 Ch. D. 238 (1886.) INTRODUCTION The instant the notion of firm property is brought forward, the material is furnished for an explanation of the relation in all its bearings. As a common pro- perty is the distinctive characteristic of partnership, the fundamental principle of the relation can be es- tablished. The typical trait of partnership has been lost sight of, and no basis is left for the relation. The Profession has groped about in search of the principle for the last half-century. Not having succeeded in re-discovering it, many have come to believe that there is nothing distinctive about the relation, and they proclaim the absence of principle as the ideal of partnership. The title to the property being the first thing to en- Sharing the profits disclosed a property right in A. He might negative the title, and show that he claimed under B, who had the exclusive proprietorship. Then B would be sole proprietor, and his powers would correspond to his title. A could not deprive him of the right to exert his prerogatives of ownership. Every attribute of a proprietor taken away from B and given to A shows that he is sharing the proprietorship with B. The control and destination of the funds are the characteristic of an owner, and contra-distinguishes him from a creditor who aban- dons his control when he parts with his title. The debtor becomes the owner, and the creditor has no control over him. The attempt to control the debtor shows that the relation of debtor and creditor is superceded and replaced by a co-proprietor- ship. The provision for a management by the creditor if the Introduction gage the attention, presents itself in two' stages. First, the nature of the partner's contribution has to be de- termined. Inconsistent theories have been advanced to account for the right, and define the extent of the firm's ownership. In fact, but one State has worked out the true theory of the contribution, and all the others vacillate between conflicting theories, main- taining positions which are self-destructive. The next thing to consider is the effect of the combined con- tributions made by the different partners. It is the joint estate thus created which forms the basis of debtor does not succeed reveals the position of tlie parties, and proves that the creditor is a proprietor, and directly interested in the business. The survival of the relation of debtor and creditor after the debt has been paid, and the control or man- agement of the business in order to secure the profits stipulated as a bonus for the loan is a reductio ad absurdum. The Hindu Rajah's case (§64, n. 4, c) is no precedent for this decision. That was an undoubted loan at the start. The subsequent restriction w^hich the creditor put upon the debtor, in order to realize the debt or enforce its collection, was in the nature of execution or sequestration, and did not change the original character of the transaction. Here, on the contrary, the transaction, at its origin, is In question, and can be ascer- tained only by the legal effect of all the provisions, without the ai J derived from a relation already established. The abandonment of property which furnishes the standard of partnership destroys the indicia of the relation. No clue is left for establishing a partnership, except the acknowledgement of the parties. S Introduction partnership. Until the title by which the partners hold the property of the firm is ascertained, no adjust- ment can be made of any right or liability between the partners, nor can either joint or separate creditors establish a claim against them. The nature of the property must be understood, or the principles of partnership will remain unsettled. The Profession does not exhibit the confidence which springs from conviction, based upon knowledge of the underlying principles of partnership, but trifles with first principles. The failure to comprehend the character of firm proper- ty has produced an interchange of confusion among the different States. States which consider the title joint upon one point, treat it as separate upon another, and although they exchange places without rhyme or reason, no State consistently adheres to the joint title in every aspect. The property measures the capacity of a partner. He pledges the property by each firm transaction, and thus creates a right in the firm creditor. This principle clears up the mystery of marshalling assets, one of the grand bugbears of partnership. Every country has had to acknowledge in practice a preference of the firm over the separate creditor, but no legal system Introduction has furnished a justification for the privilege except the Common law, and that has achieved the result by unconscious cerebration. The failure to master the fundamental principle of the relation has left every question of partnership open for revision. The trait which constitutes a partner has been the enigma of partnership for half a century. The nature of the contribution made by a partner to the firm stock, though not the subject of such an endless chain of talk, has been none the less a riddle. The nature of the joint estate, and how it has modified partnership at the Common law, has never been ap- prehended. The effect of the estate in creating for a partner the capacity, which the Common law refused to acknowledge, deserved attention, but attracted none. The consequence of the estate upon the doctrine of marshalling the assets also passed unobserved. Nothing but the principle will serve to reduce these main heads of partnership to certainty, and through them to transmit certainty to the multitude of minor points which depend upon them for correct adjudica- tion. The property alone is sufficient to make the pro- prietor a partner, although he takes no part in the Introduction management of the business. It is this feature which distinguishes the Common law from the Civil law partnership. It is the property which extends the private bargain of the Civil law, and converts it into the business-establishment of a Common law partner- ship. The dormant partner is the typical Common law partner. The failure to apprehend the character- istic of the Common law type has led to covert attacks upon the dormant partner. As he could not be dis- lodged by himself, the attempt was made to throw the undisclosed principal overboard.f The attempt failed, and the dormant partner, the commercial type of the undisclosed principal, stands as the living embodiment of property as partnership. Next to the principles inherent in partnership, it is important to understand what foreign elements have been permitted to intrude themselves into the relation, and to interfere with its normal functions. In this respect partnership has had to undergo radical changes. The dual position of a partner, (a survival of the sodetas bonorum universorum,) who is charged with unlimited liability, in spite of the fact that he contributes but a portion of his estate, creates a collision of rights at the t Edmunds D. Bushell, I 26, n. i. 8 Introduction start. The law adheres to tradition, and enforces the liability. Equity recognizes that the liability should be limited to the contribution, and, where its principles apply, controls the firm creditors who seek to enforce the liability against the separate estate in competition with the separate creditors. Both the legal right and the equitable control of its exercise must be appre- hended, in order to appreciate the exact limits of each. The want of a clear understanding of the difference between the position of the firm and of the separate creditors has introduced a combat of opinion, which a statement of the right and of the equity is sufficient to terminate. The Common law has a mode of procedure peculiar to itself for enforcing the unlimited liability of a partner. The dogma of an indivisible contract was taken as the standard of the commercial contract, which the partners make in transacting the business of the firm, and the partners were classified with joint contractors. Had the process for the enforcement of the breach of a joint contract been practical, the interpretation of the business contract and of the remedies to enforce it would have been adequate to the requirements of the business, and no mischief would have resulted from 9 Introduction identifying partners with joint contractors. But the crochet of an indivisible contract and the technical trifling of medieval procedure conflicted with and trans- formed the business contracts of the firm. The remedy- was a pitfall, and seemed designed to prevent the attainment of satisfaction, the object of the process. Partnership has had to submit to these restrictions, and to work at a disadvantage from its introduction into England up to the present day. There has been a long struggle, and it has been carried on against the inveterate prejudice of the Profession, to provide partnership with the legal machinery which is adapted to its requirements. It is only now, and in America, that the desired result has at last been worked out. In England, the partnership procedure has been codified upon the model of the Civil law practice, and a dis- cretion has been lodged with the judges to mould the procedure, in order to carry out the enactment. But our Profession at the old homestead still worships the Fetish of an indivisible contract. The judges have disregarded the legislative mandate, and ignored the Civil law process. They have read the conceit into the Civil law, and vitiated its process, as they did the procedure of the Common law. INTRODUCTION The law of commercial paper has injected itself into partnership, and created a partial revolution. By means of commercial paper a partner's implied power is extended beyond the scope of the partnership bus- iness. At first, where the form of the paper indicated an individual transaction, the first taker at least could not hold the firm ; but the use of commercial paper did not correspond to its form, and no notice is now suggested by the way in which the paper is draw'n. The partner may employ commercial paper for his individual account, and charge his firm. There is no limit to a partner's power in dealing with commercial paper. The important thing to remark is, that this is an exceptional power, and that it stands isolated from every other. The failure to observe that this power conflicts with partnership principles, and supercedes them for the nonce, has induced a habit of arguing by analogy which has no justification. The admitted power of a partner by means of commercial paper to make his co-partners share his individual debts is as- sumed to be derived from partnership principles, and thence it is argued that other exertions of power should be countenanced, because they do not exceed the power of a partner by commercial paper. II Introduction From this outline of principles, it is obvious that partnership has not been analyzed and reduced to its constituent elements, much less have the principles been worked out in detail, and classified according to their prominence in the relation. Without such anal- ysis and elaboration, an embodiment of partnership would not be complete. The proposed code by Prof. Pollock contains no hint of such requirements. Austin, the great advocate for a code, insisted that it should embody a system of principles. The qualifi- cations he specified for a codifier should be recalled by those who invoke his name. Think of his standard in comparison with modern projects! The organizing faculty of Aristotle should, he said, be combined with the knowledge of the Common law possessed by Coke or Eldon.J Superior qualifications could hardly be conceived, and yet they are not equal to the requirements demanded for a codifier. The progress of the human mind is made in stages, and not all at once. No man, though an Aristotle and Eldon rolled into one, possesses all the wisdom of his epoch, much less of all time. An attempt to put into definite propositions all the provisions of law, would of ne- t 3 AUSTIN'S Jurisprudence 377-8; 2 lb. 362-3. Introduction cessity be imperfect. Principles would be overlooked, misunderstood, or not brought into co-ordination with the system. The reasoning from the code would be based upon a comparison of all the parts. The con- struction is e complexu, and thus the tares would grow up together with the wheat. Austin's criticism of the French Code,* and Pothier's idiosyncracies incorpo- rated in the Code Napoleon,! illustrate the effect. This process of -interpretation vitiates not only the corpus iuris, but also the lawyers who are trained to reason from arbitrary premises, without taking thought whether they are true or false. The statutory pro- visions are theoretically remediable by subsequent legislation, but the work of a code is not performed by the legislators ; it is thrust upon the legislature from without, and when once enacted is not easily rectified. The change of a part involves a readjustment of the whole, because the basis of construction extends to all parts. But if the code were remediable by subsequent legislation, a legislature would be required to sit like a court without interruption. What advantage would be gained by substituting a legislature for a court? *AUSTIN Jurisprudence, 253, 205. tl34, n. I. 2 Bonjean, Traite des Actions 102-3, cites an instance and states the habit. 13 Introduction The legislature has broken down even in its appropriate province. Mr. Carter has marked out the sphere of legislative action with unequalled discrimination.* The State takes charge of the common welfare, but does not interfere with the relations between the citizens, unless they disturb the public good. It is under this rule of non-interference that the citizens of Rome and of England built up, according to their needs, the only two great systems of law which the world has seen. Judge Strong, in a remarkable address delivered to the law students of the University of Pennsylvania, showed how the system of popular legislation had failed to perform its function, and had thrown back its work upon the courts.f It is not simply the cor- ruption of legislative bodies which accounts for the failure, but it is the want of intelligence. The legisla- ture is not made up of experts, who know what the law is, and how it can be improved. Austin always regretted that he had not been bred to the law.J He felt that the source of his legal inspiration had been cut off, and that he did not master the materials which *The Proposed Codification of Our Common Law. tintroductory Address to the Law Students of the University of Penn- sylvania, October, 1879. JThe Province of Jurisprudence. 14 Introduction he would fain have worked up into the framework of a code. His organizing mind craved order, and he thought nothing would bring it about in law but a code. It seems strange that he should have distrusted in law the process which he made the keystone to his system. He demonstrated how the mind appropriates a prin- ciple, and assimilates it in all its details. No better explanation could be given of the reliance upon prin- ciple for guidance.* Had the suggestion been made to Austin that the principle of utility should be codified, with what astonishment would he have regarded the project? Judge Cooley has recently illustrated the process in reference to the principles of law.|| What is simpler than partnership ? A partner is nothing but a co-proprietor in the business. The recognition of this trait, in any aspect in which it may present itself, is a difficulty only in the sense that the instance may be complicated by other traits which conflict with a proprietorship, and make its existence doubtful. No obscurity arises from the principle, though its applica- tion under the diversified phases of life may not always be simple. *AUSTIN'S Jurisprudence, vol. i. l|An address entitled "The Uncertainty of the Law," 22 Am. Law Rev. 347-70, 1888. 15 Introduction The imputation cast upon judges by Bentham and his school is groundless. They have never usurped any perogative. The function which they exercise is the normal process, and the only .intelligent method ever yet' devised to meet the wants of a community. The Roman course differed only in having free trade in jurisconsults, which was letting the parties choose their judge. The judicial utterance is the original method which has prevailed from the earliest times. It is pre-emminently the Common law process. The Anglo-Saxons were the embodiment of their law. Each member of the commune was an exponent of the law, and testified to its terms.* The court and jury of the present day do but represent the community and continue the legal tradition which has endured from the days of the markmen. Whether the theory of HoLMES,t that the court is educated by the jury, be adopted or not, the judges formulate the principles for the common weal, and have been found by ages of experience to be the only body which can give ad- equate expression to the will of the community. The slur of "judge-made" law has not deterred the judges *Dr. Karl August Rogge. Ueber das Gerichtswesen der Germanen. tHOLMES' Common Law, 113-14, 123-9. 16 Introduction from exerting their faculties, nor will it make them abnegate their function. They should not be intimi- dated and seek to conceal the process by a false pretext. The maxim of stare decisis is a meaningless phrase, and should not be used as a blind. Mill charges lawyers with the fault of arguing as if a pro- position were general when it has but a restricted meaning. The charge accurately describes the use made by lawyers of the maxim stare decisis. It does not mean what the words strictly import, that a judicial blunder must be perpetuated forever. The history of the Common law negatives such an absolute sense. Bracton selected his cases mainly from the rolls of Pateshull and Raleigh, disregarding the rolls of all the other judges, || and yet his book has been taken as a statement of the law. It is the only original source of early Case-law, and he wrote in order to bring the decisions to the attention of judges. The vast accu- mulation of rolls were evidently not consulted by any one. Reeves, in his history of the Common law, re- capitulates the changes made in the law of England during successive reigns, and no legal writer can be consulted who does not show how the doctrines of IIBRACTON'S Note Book, by MAITLAND. 17 INTRODUCTION his subject have been modified at diferent times. The maxim does not mean what it says. It must be in- terpreted in connection with its complement, which provides that a precedent, when superceded, never was law. This shows that it is only sound law which obtains in the long run, because principle is the only safe guide for human action. Why, it might be asked, take any exception to the maxim if, when correctly understood, it coincides with principle ? The answer is, that this co-incidence is not recognized, and the maxim is never invoked, except to exclude the opera- tion of a principle. A precedent, it must be borne in mind, is nothing but an experiment. If the proposi- tion justifies itself, the principle stands, but if subse- quent investigation shows that the proposition is un- sound, it is set aside and replaced by the true prin- ciple.* Any attempt to stifle investigation, and bolster up an incorrect statement of the law, causes more mis- chief than undoing the wrong at first. The repeated *" In strictness the decision of a judge is not law for succeeding cases ; it " is only evidence of the law. It is the testimony of a witness who is pre- "sumed to be learned and capable, explaining what the law actually is on " the point in question. It decides the particular case, but it does not of " necessity decide similar ones that follow. The succeeding judge maj' reject "the testimony of his predecessor as erroneous ; hemay fmdthatthelawwas " not in fact what his predecessordeclared it to be ; he may therefore overrule "the prior decision." HADLEY'S Roman Law, p. 68-g. Introduction decisions aggravate the case until, in the end, a whole mass of decisions has to be overthrown, instead of a single precedent. It is the process of testing the cases at every recur- rence by the touchstone of principle which makes the law a science. This is the method of natural science. The opportunity is afforded for verification or revision by the court after the most searching investigation and discussion by the lawyers. A history, if it existed, of legal doctrines at the Common law would show how, and when, the different groups of cases were general- ized and brought into consistency with the system. No one familiar with legal thought can fail to recall instances where lawyers have unearthed and framed the principle which serves to reconcile a given line of cases, and have put the class upon its true basis of principle. The wisdom of the Common law arrange- ment consists in its providing for the co-operation of the Bar in making the law. The provision liberates all the latent resources of the Profession, and makes them available at all times for the development of the law. The ranks of the Profession may be all but filled with ordinary and common-place judges and practiti- oners, it needs but one original mind to detect the 19 Introduction latent principle which explains a congeries of cases, and to combine principles in their related order in the system. The instant the principle is announced, and its position in the hierarchy of principles disclosed, the truth is established. The discovery is recognized, like a truth of natural science, without debate or argument, and the revelation illuminates the mind with con- viction. It is the free play of original thought which infuses life into the law and keeps it from stagnation. The perversion of the maxim siare decisis, and the adherence to precedent without reference to principle, produce the same effect as a code. The reasoning from an arbitrary premiss, vitiates the faculty of rea- son, cutting it off from the source of its inspiration, and the arbitrary element introduced into the law helps to fix the basis of construction for the whole corptts iuris. The meaning of the common saying, that periods of codification mark epoch of decay, is simply that a code excludes the co-operation of the Profession in making or developing the law. The creating force is turned off. Any science would die out which pre- vented the closet student, the practical operator, the experimentalist, or any other follower, from contribut- Introduction ing to the general fund of knowledge. No one can foretell from whom may come the inspiration which will advance the knowledge of all, and the co-opera- tion of every disciple is solicited. No one is driven away. By enacting a proposition, or adhering blindly to a precedent, the process of sifting and purifying the law by subjecting it to reason is arrested, and the law be- comes a dead mass which succeeding generations of lawyers cannot utilize, as it admits of no assimilation. * When I took possession of my chair at the Univer- sity of Pennsylvania, in 1874, I announced, in an in- troductory lecture, the plan of instruction which I should pursue, and 1 have endeavored to follow the course which I then marked out. The present book is the product of my work upon one topic of the course, and will illustrate my method of handling the law. The point to which I directed the attention of the students is, that cases are the exponents of principle, and that back of the facts lies the reason which ex- plains them. The occupation of watching the acting forces of the law as they mould its provisions, capti- INTRODUCTION vates and absorbs the mind. The students become interested in the process which, while it is open only to the initiated, explains what they see going on be- fore their eyes in the courts. They learn to appreci- ate a principle when they witness the transformations which it effects. One who starts with the reason for a proposition has the inside view. His mind, guided by the principle acts under its inspiration, and work- ing according to its nature, comprehends the exact ex- tent and limit of its application. It is the weakness of statutory law that reason is excluded in interpreting its provisions. The ipse dixit of the legislature mocks reason. The character of the instruction which a lecturer gives will depend upon the object he has in view. If he says the Common law is a case-system, the import- ant thing is to take up the mechanism of a case, and teach the class how it is constructed. He would than dissect cases and think no valuable time lost which was consumed in putting the inexperienced students through the gymnastics of a case.* The result of such *This is the method expounded and advocated by SIDNEY G. FISHER, Esq., in an article entitled, " The Teaching of Law by the Case-System." 27 Am. Law Reg'r 416-26. He treats the class-room as a clinic for the dis- section of cases, and seems to thinPc this is the Harvard-System. 22 Introduction a method would be to turn out a case-lawyer, whose aim would be to familiarize himself with as many cases as possible. If he could classify them in series, the segregation would enable him to memorize them with greater ease, and he would accordingly start with what are called leading cases. The subsequent de- cisions would be grouped under the first, but as the combination of facts does not recur, the process would be imperfect, and with the succession of cases become more and more confused. Sub-divisions would keep up only the show of classification. Cases spring up everywhere which admit of no such grouping. They are indexed as novel points, and soon fill a digest. In the end the digests and text books are overwhelmed with a mass of unassorted cases. It is needless to say that no Law School adopts this course of instruction. It is the want of the training by Law Schools that accounts for this plan of case- juggling. Even a 'mast-fed' lawyer, as Lincoln jocosely said he was, would not follow such a plan, if he had the mental aptitude to reason for himself. To try and fit one case to another without recurring to the principle which connects them to a common system is to make a patch-work or mosaic of the 23 Introduction law. The course of instruction at Harvard, if Judge Holmes' bookf and Prof. Aimes' articlesj disclose the process, is the historical method. The early cases are studied in the order to discover the origin of each prin- ciple at the Common law, and when it is detected the course of its subsequent development is pointed out. There is, however, a method of instruction which disregards first principles, and adheres to secondary ones. The principle immersed in the facts of a case must always be extracted and stated in the form of a proposition. The analysis of a case is the preliminary step in reaching the proposition. The lawyer repre- sents, or assumes to represent, the logical faculty. The case having been reduced to its constituent elements and stated in the form adapted for reasoning, becomes a starting point. No inquiry, however, is made into the origin of the rule, or its connection with any other branch of the law. The deductions made from the premises may be strictly accurate and logical, but the failure to connect them with each other in a system destroys the interdependence of the parts in the whole. By severing a principle from its stock, the life of the tThe Common Law, by OLIVER W. HOLMES, JR., 1881. t" The History of Assumpsit." 2 Harvard Law Rev. 54-69, 1888. 24 Introduction limb is taken away, and tlie proposition becomes an arbitrary statement. The reasoning faculty is per- verted by making it deal with counters instead of with principles. It is this eccentric feature which gives to so much of legal reasoning its anomalous character. The sweeping language of lawyers is mis- leading. They affect to be reasoning on general principles, when the language is in fact confined to an abbreviated proposition, and does not comprehend what it terms import. The true method of instruction involves the histori- cal, the dogmatic, and the comparative study of law. The origin of a principle must be investigated, its de- velopment traced from its first appearance down to its last manifestation, and the changes noted which it has produced, as well as the principles which have met and conteracted it. The principle may be latent, and require side lights to make its presence visible. The interdependence of the parts in a system must de un- derstood, in order to realize the relative force of any given principle. The instruction includes a compara- tive study of other systems of law, which have had the same problems to solve, in order to ascertain how best the purposes of law can be accomplished. 25 Introduction The direction given to the course of thought when the student's mind is first awakened to the idea of law controls him throughout his subsequent career. The students of the University of Pennsylvania have been led to approach the study of law in the scientific spirit, and have carried the original impetus into their sub- sequent work. The law, they see, is a science, and its process conforms to the scientific method both of investigation and verification. The graduates of the University of Pennsylvania exhibit the advantages of studying the law in the scientific spirit, and would not, it is safe to predict, exchange the method which they acquired at that University for any competitive scheme of legal education. JAMES PARSONS, i4}o So. Penn Square, PHILADELPHIA, PA. 26 ,^^^^^x^^^^^^±^s^x^^^^^^l Jl^^^^^Wf^^^WfW^W^f^^'^^W^W^^^^p^f^fWf^ THE PRINCIPLES OF PARTNERSHIP. ^^^^^^^±X^^±X^±2^^±X^±S^Zi ^j^^if:^^!^^!^:^!^^^:^^::^!^:^^:^^^!^^^^^^^^^^^^, THE PRINCIPLES OF PARTNERSHIP. The subje^l of partnership naturally divides itself into three parts: 1. Assuming the position of a partner, or what consti' tutes a partner. 2. The principles which regulate partnership during its existence; and 3. The principles by which the business is wound up. PART I. Assuming the position of a partner, or what constitutes a partner. CHAPTER I. THE ORIGIN AND GROWTH OF PARTNERSHIP. §1- The relation of the partners between themselves was the legal aspect of the subject at the Roman law, while at the Common law the effect upon third persons of one's acting as a partner is the question for discussion. Partnership existed at the Roman law, which de- fined the relations of the partners among themselves. Being founded upon confidence, the ideal of good faith was enforced. The partners became mutual trustees in the business. Fairness required that each should share the profits in proportion to the contribution he made to the business, and the law prescribed an ad- justment of the interests upon this basis.' The Common law leaves the domestic equation to the agreement of the parties, and sanctions any ar- rangement they see fit to make among themselves. It is only in the absence of any contract that the law supplies its place and regulates the status of the part- ners. The main discussion of partnership involves 31 §1. Origin and Growth. Pt. i, Ch. i. the rights of third persons against a firm, and upon this point the Roman law was almost silent. Partnership at the Roman law antedates contract. The origin of the relation goes far back to the worship of ancestors, patrem et matrem ■venerari oportet. D. 37, 15, i, 2. The parents and children form a partnership, secta, sodetas. It is a tie of blood, and binds the kin together, consortes, by sacred rites. The family partnership executes blood vengeance, suas suorumque iniurias persequitur. The joint property results from the union of persons, herdum non dtum, and accounts for the partnership of all property rights, sodetas omnium bonorum, and explains Ulpian'S de- scription of partnership as a kind of brotherhood, quum sodetas ius quodammodo fraternitatis in se habeat, D. 17, 2, 63, which exacts the utmost good faith from its members, fratres cansortes. The reciprocal obligations were enforced by the familice her- dscundcB adio. The patron and client enlarged the relation and introduced the voluntary element. This, in time, became the distinctive trait of a partnership. A joint possession or ownership which did not arise from a contract was called a communitas,\o denote the specification which had been made, but the only difference between them lay in the method of acquisition. Co-owners or co-tenants of land might be partners in it, not because they converted the land into merchandise for traffic, but simply because they effected a joint purchase, and without reference to any use or disposition they might make of the land. Two monks, who bought a saddle-horse for each to ride, were part- ners in the animal. The adio pro sodo was confined to the partnership by contract. The trade-partnership arose from farming the public revenues, which overtaxed the administrative resources of the Republic, and was committed to private individuals." The purpose, which induced the partners to enter the relation, served as a basis for a classification of partnership. Gain ?2 Pt. I, Ch. I. Origin and Growth. §2, being the leading impulse for action, made the grand division a partnership for gain, societas ex qucestu, or a partnership not for gain/ The only kind which corresponds with the trade-partnership of modern times is the societas ex qucestu. 1. 15 Gliick's Erlauterung der Pandecten, 304-26. ? 966. 2. Zur Geschichte der Romischen Societas, von Dr. B. W. Leist, Jena, 1881. 3. 15 Gluck ; § 962, 963. §2. Partnership existed before contract regulated its terms, and the primitive relation is not remodeled by the doctrine of consideration. Partnership grew up in the middle ages, and there assumed its modern form. The history of the various firms which flourished during that period has been investigated, and the partners seem, generally, to have been related as members of a family. The headquar- ters were at the family seat, and branches were estab- lished, or travelling members sent out, when occasion required, to extend the business.' It needed the in- timacy and trust of kinship to carry on trade in a predatory period, and the necessity added new force to the canon of the Roman law, that partnership is a relation of the strictest confidence. When the question arose in our law: May the family relation serve as the basis of a partnership? a collision of theories presented itself, owing to the fact that with us the element of consideration had become 33 §3- Origin and Growth. Pt. i, Ch. i, the controlling factor in contractual relations. It was assumed that the contract of partnership, like all other contracts, required a consideration to uphold it. The family relation of the partners rebuts the presumption of a consideration between members, and prevents a contract from being implied by law. But the argu- ment overlooks the medieval practice of family part- nerships, and makes the modern graft of consideration sap the trunk of the partnership tree. Without refer- ence to either history or consideration, the question was settled in conformity with medieval tradition.^ 1. Handelsgesellschaften in den deutschen Stadtrechtsquellen des Mit- telalters von Friedrich Gustav Adolph Schmidt, 1883. 2. Family relation don't rebut inference of partnership arising from joint transactions. Joseph Ratzer, in 1865, bought carts and started business as a carter. In 1866 his father, John, began buying brewers' grain, and Felix, his son, joined them, followed by John, a third son, in 1867. From 1866 to 1868 they traded as J. & F. Ratzer; then changed to Ratzer Bros. The proceeds of business went to the mother, who sup- ported them and supplied them with pocttet-money. John and Joseph brought bill for account. Defence : No partnership, but plaintiffs obtained support for their services. Felix' testimony, that original firm was John, Sr., and Felix, negatived by his admissions, confirmed by change of name to Bros, when third brother entered, and by father's admission that sons owned the business. — Account. Transacting bus- iness together, though without an agreement, implies a partnership, and entitles each member to share the profits equally. Ratzer v. Ratzer, I Stew. 137 (1877). When partnership was introduced as a function of trade, property, being the subject-matter of trade, was deemed 34 Pt. I, Ch. I. Origin and Growth. §3. to charge the proprietor who contributed to the firm with the unlimited liability of a partner, although he took no part in the management of the business. Partnership entered the Common law through trade or commerce, and the Law Merchant governs, it is said, the relation. But this is true only of a few principles adopted apparently at haphazard. The earlier statutes of the various sea-port towns on the continent of Europe have been collated, and they establish the law of the then commercial world. The result of the enactments is that in medieval times the test of gen- eral liability as a partner was his joining as a pro- prietor in the management of the business. He must be both an owner and a manager. The Commenda, or property contributed to a business conducted by others, did not of itself personally charge the contri- buting partner, who took no part in the management, for any liability incurred in the transaction of the busi- ness. He staked his contribution in the venture, and that was all he could lose, if the enterprise failed.^ The Common law did not adopt the Law Merchant upon this point, but modified it by interjecting a feudal notion into the trade relation of partnership. The joining in trade was not interpreted according to its natural form and effect, simply as the co-operation of proprietors in the management of a business, but the element of property was made the dominant factor, and property embarked in trade became itself a suffi- cient basis for the relation. Under the Feudal law all the rights and duties of 35 §4. Origin and Growth. Pt. i, Ch. i. the individual took root in the possession of property. Land, the most usual and important form of property, became, in effect, though not in name, a legal person, and the man a mere incident or locum tenens. Per- sonal property never had this independent legal status, but the habit of mind, acquired in dealing with real estate, led the common lawyers to personify the con- tribution of a partner. Starting with the physical fact of contribution, the rights and responsibilities of the contributor were the result of its commercial move- ment. The joinder of property was deemed sufficient to charge the owner, although he did not, as a person, join in the business, or take part in its management or direction. THIS NOVELTY IN LAW HAS EFFECTED A REVOLUTION IN PARTNER- SHIP, AND MADE THE COMMON LAW TYPE A DISTINCT SPECIES, UN- LIKE THE PARTNERSHIP OF THE LAW MERCHANT. THE CHANGE RESULTED FROM THE UNCONSCIOUS ADHERENCE TO FEUDAL TRADI- TIONS WHILE PROFESSING TO ADOPT THE PRINCIPLES OF TRADE. THE METAMORPHOSIS IS SO COMPLETE THAT THE NORMAL TYPE, NOW INTRODUCED BY STATUTE UNDER THE NAME OF SPECIAL PART- NERSHIP, IS NOT RECOGNIZED BY THE PROFESSION, BUT IS MISTAKEN FOR A MONGREL CROSS BETWEEN A LOAN AND A PARTNERSHIP. I. Das Recht der Commanditgesellschaften von Achilles Renaud, Eip- leitung, Leipzig, 1881. §4. The contribution established the position of a proprie= tor, which in turn became the measure of a partner's pre= rogatives and liabilities toward third persons. The contribution identifies a partner, because it shows that he is a proprietor of the business. The 36 Pt. I, Ch. I. Origin and Growth. §4. contribution might consist of sl It shows that another person is liable on account of his property-interest, and that the party signing it was the agent of such undisclosed principal. This fact is sufficient to entitle him to enforce the contract for his benefit, or be liable upon it to third persons. How does the party to the contract stand .-' He cannot escape his liability by oral evidence which shows that he acted as agent for the principal. This would contradict the writing, (and be against the statute). He is accordingly liable jointly with the principal. If only the parties to a contract could be held, what would be the effect ? That no partnership in real estate as to dormant partners could be proved, because the writing would preclude an enquiry. §11. Partnership may exist for improving, as well as for buying and selling, land. The business may consist of a building operation, undertaken for the improvement of land, and for bringing it into the market by means of the structures erected upon it;^ or the business may be limited to the erection of buildings, without any ulterior view of selling the premises.^ I. A building operation on joint account is a partnership. Land was let to B, who conducted a building operation. C advanced the money. Ti- tle held by C, though in equity tenant in common with B. Funds realized by sale of houses deposited to joint credit, upon which either entitled to draw. After advances and outlays reimbursed, profit and loss divided equally between B & C. A sued C for building materials. 63 12. Origin and Growth. Pt. i, Ch. i. —Liable, because transaction was by B and C's agent on behalf of both. Noakes v. Barlow, 26 L. T. 136, s. c; 20 W. R. 388 (1872). 2. A partnership in building. A & B were associated in building, but not for operating, a mill. A bought mill-stones for firm, on individual credit. Plaintiff sued both for price. — Recovered, because partnership in building, and purchase incident to business. Reynolds v. Cleveland, 4 Cqwen 282 (1825). §12. The only close left which business does not penetrate is farm land. The relic which survives of the traditionary epoch is the custom of farming on shares. The relation of landlord and tenant gives expression to agricultural habits, which would not, it was thought, adapt them- selves to the transactions of business men/ But the exception is becoming rather a presumption of fact than a dogma of law, and if the parties mean to farm land in partnership, the law will not prevent them.^ I. Farming on shares does not constitute an agricultural partnership, but establishes the relation of landlord and tenant, according to inveterate tradition. Farming on shares no partnership. By agreement, B farmed land of A for 1-2 the product, each furnishing 1-2 the stock, but B the implements, working-stock and labor, and also paying road-tax and 1-2 of other taxes. B confessed judgmenttoC,wholeviedonandsoldB'sinterestin the farm to D. Claim of A's devisee : Sheriff's vendee bought only a balance due B after account with A. — Judgment for C. No partner- ship, and A's failure to distrain, or notify sheriff of claim for rent, de- vested his right. Brown v. Jaquette, 94 Pa. 113 (1880). The tenant is entitled to the possession during the term of his lease. Farming on shares give farmer possession. B let moiety of a farm for 64 Pt. I, Ch. I. Origin and Growth. §12. one year to A, who agreed to haul and spread manure, and keep the fences in repair, to plant fields with specified seeds, and to pay taxes. B bargained for half the corn and grain, and A for all the hay and for pasturage. A sued B for failure to give possession. — Recovered. Steel V. Prick, 56. Pa. 172, (1867). Title to the crop is incident to tlie possession, and is vested in the tenant. Owner no title to crop until set apart. B rented his farm on shares to Cetal. Aattached thegrowing grain in their possession for B's debt. — Valid. No levy until rent in kind set apart for B, but attachment lay for it against tenants, as owners. Howard v. Kyte, 69 Iowa 307 s. c. 28 N. W. R. 609 (1886). The interest of the landlord in the growing crop is not severed by execution and sale under a judgment against him. Execution against tbe landlord does not sever the crop. B let his farm on shares to C from year to year. During the term, the growing grain was sold under a judgment against B to A. Subsequently the land was levied on, and sold to D. C, as tenant of D, delivered to him the harvested grain. A sued D. — Recovered. Levy severed the shares, and sale passed B's share to A. — Reversed. Long v. Seavers, 103 Pa. 517,(1883). A cropper shares the product, but, as he is not a tenant, he has no right to the possession, which remains in the owner, and he acquires no title to the crop. A cropper lias no way-going crop. B agreed with C that he should put out 2; or 30 acres of wheat, and have 2-3 of the crop. The farm was sold by the sheriff to A, who, in January, sold it to D, and subsequently entered up judgment for the purchase-money. C paid D 1-3 of the crop, and retained 2-3 of it. D claimed to set-off the 2-3 against A's judgment. — Disallowed. As C not a tenant, but only a cropper, there was no way-going crop for C to claim, or D to set-off. Adams v. McKesson, 53 Pa. 81, (1866). Cropper has only a claim for his share. B, who held land, bargained to plow and sow, A to fence and irrigate it, and to harvest the crop on shares. Upon disagreement, B cut off water, took charge of crop, and promised to pay $10 a ton for his half ; for which A sued B. De- murrer, because remedy account. — A simply a cropper, who had no interest in land, but a share of crop for his work. Romero v. Dalton, 11,863 Ariz. {1886). 65 §12. Origin and Growth. Pt. i, Ch. i. In Massachusetts, and in New York, the disposition is to treat the farmer on shares neither as a tenant nor as a cropper, but as a co-occupant, with an undivided share of the crops and a qualified interest in the land. Farmiag on shares gives the farmer a joint title to the crop. By agree- ment, B should work A's farm on shares for one year, each furnishing half the seed. A's creditor attached and removed his quota. A sued B for half the crop. — Judgment for B. Though remedy against officer by both co-occupants, who had undivided shares of the crop, yet the duty to act was upon A, because the trespass was commited for his private debt. His neglect waived pursuit of the officer for the trespass, and for recovery of the quota. Walker v. Fitts, 24 Pick, igi (1837). Available against his co^'occupant, owner of the land. Agreement by A and B to farm on shares, each furnishing half the seed and manure, A doing hand and B team work, and A harvesting the crop. B excluded A, and consumed the crop. A sued B for the conversion. — Recovered. Tenants in common of the crop, and trover lies, in IVlassachusetts, against co-tenant for conversion of undivided half. Delaney v. Root, 99 Mass. 546 (1868). Owners, occupants and laborers, farming on shares, are tenants in common of products, and may join in suit for price. C & D took A & B's farm on shares. D divided his share with E & F, in consideration for working the farm. D sold wheat, and all six sued for the price. Defence: Contract with D alone. — Suit maintained. Though not partners, own- ers tenants in common with occupants and laborers of products. As all must join in tort to common property, they may waive the tort and sue in assumpsit. Putnam v. Wise, i Hill 234 N. Y. (1841). Until or unless a division is made. The agreement may provide for a division, and exclude a joint interest. Agreement: A to work B's dairy farms, deliver 9,600 pounds, and re- tain the residue of cheese manufactured and sold by the factory. A sued D, its treasurer, for proceeds he had paid B. — Judgment for D. Title to first g,6oo pounds manufactured in A ; balance only In B. Wilber V. Sisson, 54 N. Y. 121 (1873). Or the value of a share may be bargained for, and that indicates a cropper. Tanner v. Hills, 48 N. Y. 662 (1872). 2. Farming on shares by owners constitutes a partnership. A & B jointly bought lands, for the purpose of farming them, and eventually of selling them. By subsequent agreement, A conducted the farming operations, and B attended to the sale and shipment of produce, bearing equally the 66 Pt. I, Ch. I. Origin and Growth. §13. expenses, and after an allowance to A for his services, and for the use of his teams and implements, sharing equally the net proceeds. A sued B for his portion.— Judgment for B. Partners, and only remedy account. Fisher v. Sweet, 67 Cal. 228 s. c. 7 P. 657 (1885). Parties may make farming on shares partnership. Retiring jointly liable with continuing partner, if dissolution not published. B contributed farm, team, implements and hay-pressing machinery; C, seed and labor, and they shared the net proceeds. They also bought and sold hay and coal, as B & C. They dissolved, July, 19, 1884, but without publica- tion, and, afterwards, business carried in C's name. A, who knew of B & C, but not of dissolution, sued for price of hay.— Recovered. B & C treated farming on shares as partnership. Failure to publish dissolution continued B's joint liability. Duff v. Baker, 78 Iowa 642, s. c. 43 N. W. 463, (1889). §13. It is the act of the parties, and hot of the law, which makes land an article of trade. The conversion of land into merchandise is a posi- tive act, which must be performed by the parties who wish to effect the transformation. The land retains its natural state until some act is done which changes the normal condition, and converts it into merchan- dise. The law does not work the effect of its own motion, but follows in the wake of the parties, and ratifies their act when it is an accomplished fact.' At first, mutual covenants by the partners were required, in order to convert the land into merchandise.^ But the intention is now sufficient, and oral evidence is competent to prove how the partners meant to hold the land.* I, Co-ten'ts of leasehold sharing expenses and product of additional well not 67 §13. Origin and Growth. Pt. i, Ch. i. partners. C leased oil land with fixtures and machinery for half- product. A & B tenants in common of leasehold shared current expenses and half product equally. B agreed to share cost of drilling additional well, if A would manage business, but subsequently sold out to D. A brought account to subject B's share in D's hands. — Dismissed. Not partners inter se. Well under lease and increased product of plant also divided according to several titles. Profit and loss incidental to product. Account lies against co-tent, to compel him to share expenses, but does not intercept his separate title. Dunham v. Loverock, 158, Pa. 197, s. c. 27, A. ggo (1893). This is also the Civil Law : " Supposons que deux personnes se " sontreunies pour acheter un immeuble: seront-elles en etat de societe "ou de communaute? Pour resoudre la question, on doit chercher le " but que se sont propose les parties. Est-ce pour revendre et faire un "benefice qu'elles ont achete? C'est une societe qui exist entre elles. " Mais dans le doute sur leur intention, la presomption de communaute "doit I'emporter." Traite des Sociefes Civiles et Commerciales, par A. Vavasseur,s. 28, 2d ed., Paris, 1878. 2. Partners would hold real estate as tenants in common. A & B were partners in working a distillery, which they owned. They sold the premises, and B recovered the price. A's representatives brought assumpsit for his quota. Defence : Should have brought account. — Recovered, because partners are tenants in common of real estate, which could be devoted to the firm purposes only by means of mutual covenants. Coles v. Coles, 15 Johns. 159 (i8i8). Also in Pennsylvania, if no credit to the land is involved. 3, Oral evidence competent to show equitable title In firm, though legal title in partners as Individuals, against surety for partner's Indemnity to co-partner for firm debts. A & B, July 2d, 1872, bought foundry and premises for $4500. Deed to them as individuals. They paid $250 cash, and con- fessed judgment for $4250. They dissolved in 1882, and A assigned to B in consideration for his bond of indemnity against debts; C joining as co-obligor. Two payments of $500 each had been made. Land sold on execution under judgment, brought $2325. A, compelled to pay balance, $544.88, sued C, and offered to prove: i, Property bought for firm business ; 2, Cash payments, interest and insurance out of partnership fund, and, 3, C knew purchase for firm. Excluded.— Error. Evidence competent to prove title between partners, and surety answers for partnership debts. Warriner v. Mitchell, 128 Pa. 153, s. c. 18 A. 337 (1889). Partners taking title to land without co=partner's knowledge, bought for the 68 PT. I, Ch. I. Origin and Growth. 5514. firm and with its funds, is a trustee bf ttie land as personality. A bought city lots with firm money, but without co-partners knowledge, and took title in his individual name. They were entered on the books as firm property, and the taxes and incumbrances were paid by and entered to the credit of the firm. A died, and his heirs brought partition for the lots among themselves. The co-partners and the heirs of another deceased partner claimed the land as partnership property. Defence: By New York Statute, vendee not trustee for another who pays the price. — A bought the land for the partnership, and was a trustee for the firm during its continuance, and after dissolution for the partners and their heirs. I . Statute speaks of different persons. Vendee as partner paid part of the price. 2. There is equitable conversion of land bought for the firm, and the purchasing partner becomes a trustee of personality. Fairchild v. Fairchild, 64 N. Y. 471 (1876). §14. But a modification is to be noted, wlricli results from an extension of the partnersliip area. The principles which grow out of trade and regulate its transactions undergo a change when partnership, an organ of trade, is extended to a business which is not a trade, and does not consist of buying and selling merchandise. The extension of partnership to all branches of bus- iness has led to the recognition of a new class, styled, by way of contrast, non-commercial partnerships. Their powers are defined by the special business un- dertaken by the firm, and not by trade.' Although custom, if established, as well as the exi- gencies of the business might define its extent and authorize a partner within the limits to bind the firm by commercial paper.^ I. Necessities of non^commercial business define the scope 'of a partner's 69 §14. Origin and Growth. Pt. i, Ch. i. authority to bind f if m. B, C & D formed syndicate to construct railroad, but made auttiority to eacii dependent upon consent of ail. B, manager, agreed to pay engineer A, wtio did not iinow of restriction, $2500 for a year's services. A ttien located road, secured terminals, rights of way, and a town contribution ; prepared profiles of route, estimates and specifications for construction, and assisted in framing contracts. A sued the three.— Recovered. His services a prerequisite for the existence of the enterprise, and therefore within a partner's authority. Rice v. Jackson, 171 Pa., 89, s. c. 32 A. 1036 (1895). Farming In partnership. Partner's authority limited to contracts for wages and for plantation supplies. B devised plantation, with farm-stock and implements, to his widow, C, and his nephew, A, to jointly work and enjoy, directing A to superintend plantation, but expend no money without C's approval. For two years, D, with C's knowledge handled produce and furnished supplies. A paid $300 first, and$2,83i.c)i second year. D's balances against them.' - A then joined a firm which handled the products and supplied the plantation. A subsequently bought out his partner, and, finally, sold out to E. The factors advanced rent for tenants, wages for laborers, and cashed shares for croppers. In six years, losses $11,000, and, upon C's death, A brought account for half. Defence: A and C joint owners, chargeable only for wages and supplies. D's claim outlawed. — Decree : A & C partners in farming plantation. Non-commercial partnership. No authority to guarantee rent of tenants, debt of laborers in excess of wages or shares of croppers. D's claim not barred, but subject to final account. A must sever items and render account for wages and supplies. Vaiden v. Hawkins, 6 So. 227, iVliss. (1889). Sheep'ralslng is Inconsistent with partner's agency to sell. A & B were partners in sheep-raising. B, during A's absence, and without his consent, sold out the ranch to defendants, but subsequently induced them to restrict the sale to 1-3 of the flock. B died, and A sued to recover possession of the sheep. — Recovered. Sheep-breeding involved no authority by a partner to sell. The business of increasing and improving the stock would be destroyed by a sale. The only purchases incident to the business are of breeding sheep, and the sales of culls. Blaker v. Sands, 29 Kan. 551 (1883). Theatre business does not justify commercial paper. B & C, partners for conducting a theatre. Without C's knowledge, B gave firm note for a loan, to D, who endorsed it to A. A knew the business was not for trade. The note being given shortly after the partnership was formed, no custom was established of the firm's giving notes. The proceeds were not traced beyond B, and no firm necessity was shown for the note. A sued firm.— Judgment for plaintiff set aside. Presumption 70 PT. I, Ch. I. Origin and Growth. §15. against partner's authority to make commercial paper in non-trading partnership. Each partner is not general agent for firm, except in a commercial partnership. Semble: Firm bound if it received proceeds. Pease v. Cole, 53 Conn. 53 (188;). 2. Evidence of custom and necessity for notes in business of farming competent. B farming in partnership with C gave note for fertilizer to A, who sued. Evidence that C had given notes previously for fertilizers, and that they were necessary for the business.— Recovered. Proof that notes were necessary or customary competent. Hymes v. Weld, 91, Ga. 742, s. c. 17 S. E. looi (1893). §15. A mining partnership forms a distinct species. In it there is no delectus personce,hut ashare invests the holder with membership, even against the will of his co-pantners. Neither the death of a partner, nor the assignment of his share dissolves the firm.^ The partnership results from a co-operation in the working of a mine, whether it is owned by the firm, by the partners as tenants in common, or by third per- sons who make leases to the firm.^ The nature of mining property, and the requirements for its develop- ment, led to the abandonment of contract as the basis for the relation. Mining operations demand uninter- rupted exertions, and would be imperilled if a disso- lution of the firm resulted from a change of partners. Moreover, the amount of capital required to undertake and conduct extended works furnished an additional reason why the firm should not depend for its exist- ence upon the mutual contract of its constituents.^ The personal confidence which, in ordinary partner- 71 §15. Origin and Growth. Pt. i, Ch. i. ship, results from the choice made by the partners of their associates does not exist in a mining partnership, where the connection with each other is only through the common business. Each partner represents the business, but he does not represent his co-partners, and his implied authority is defined by the nature and necessities of the business.* His liability springs from the same source.^ The normal type of partnership, however, reverts, and will exist in a mining business, if there is a delectus personce.'^ 1. II Morrison's Mining Rep. 223-607. Partners by purchase, right to assets. Superintendent of mining part- nersliip bougfit for its hydraulic diggings ditches upon which A had a lien. Of original partners, some died, and all the others, except B, were succeeded by A et al., who knew that purchase-money was unpaid when they purchased shares. A brought account. Defence : B sur- vivor, and retired partners not joined. — Decree. No dissolution by death, or substitution of partners. Retired partners not necessary parties. Jones v. Clark, 42 Cal. 180 (1871). Share-holder a partner in mining firm. B bought out an original part- ner, who had 1-16 interest in a mining partnership, and sold 1-2 to C. Neither was known as a partner in the business, or took part in its management. A erected a rock-crushing mill under contract with the firm, and sued B & C for contract price. — Recovered. Holder of share a partner in mining firm, although he is not held out, and takes no part in managing the business. Taylor v. Castle, 42 Cal. 367 (1871). 2. Partner has lien for advances made in worl(ing mines. A bought out the interests of 5 who, with B, worked mining property. The firm bought with its funds other mining land and a ditch to supply the works with water. There was no contract of partnership, but the profits and losses were shared according to the interests. The firm incurred debt by con- structing a tunnel. Account showed B indebted to A $1,572.5;. B, insolvent, sold his 1-5 to C and D, informing C, but not D, of A's claim.— C and D took subject to A's lien. Duryea v. Burt, 28 Cal. 569 (1865). 3. Receiver appointed only upon interference. A & B solicitors in partner- ship, bought part of a coal mine, and worked the colliery. Upon a 72 Pt. I, Ch. I. Origin and Growth. §15. disagreement, A, while actually conducting the operations, brought a bill for account and for the appointment of a receiver. — Dismissed. No such interference as broke up the business. The refusal of partners to co-operate is like the disagreement in an ordinary partnership, but there must be such- an interference by a partner as prevents a continu- i^nce of the business, in order to justify a court in undertaking its management. Roberts v. Eberhardt, i Kay 148 (1853). A. The partner is not an agent to bind the firm by commercial paper. Under the facts, B was appointed agent by one of the proprietors, to erect a smelter and carry on smelting works for the association. A sold coal for the business, and sued the members as partners. — Recovered. A mining partnership results from the co-operation of owners in working a mine. The partner has authority to do acts necessary or usual in transacting such business, though not to make commercial paper, or ■employ counsel to litigate the title to a mine. Share may be assigned to stranger without consent of co-partners, and firm not dissolved by a partner's death. Higgins v. Armstrong, 9 Colo. 38 s. c. lo Pac. Rep. 232, (1886). Mining firm's pre-emption right of retiring partner's interest does not pre^ vent him from selling his title, if the mines are owned by the partners, and not by the firm. A, B, C & D, each owned one-fourth of two lead mines. While A & B were negotiating for the firm to buy out.D, B and C closed with D, and took his title for themselves. A discovering the purchase, claimed for the firm the proceeds deposited in bank. — Judgment for B and C. B not a trustee, as he repudiated agency, and bought for himself with his own funds. iVlining firm's right of pre-emption is confined to retiring partner's interest in firm property, and does not extend to his individual title. The partnership for working the mines did not include the ownership of the property. First Nat. Bank v. Bissel, 2lVlcCrary 73, U. S. C. C. Affirmed, s. c, Bissel v. Foss, 114 U. S. 252 (1885). A partner's authority in a mining partnership is defined by requirements of the business. B, C, et al., partners in mining. Articles authorized purchase and sale of lands, or leases, but prohibited any partner from contracting any debt without consent of his co-partners. B drew on C, in favor of A for purchase-money of mineral land. C refused to accept, and A sued. — Judgment for C. Authority to borrow by commercial paper necessary for a trading, but not for a non-trading partnership. Judge v. Braswell, 13 Bush. 67, Ky. (1887). ;. Partnership in working quarry. Partner liable for tort of co-partner's employees. B owned a quarry, shipped and sold the stone. C worked 7^ §15. Origin and Growth. Pt. i, Ch. i. the quarry, and his men assisted B's men in loading. B & C paid for blasting powder, and divided profits in equal parts. C's men injured A on adjoining premises, by negligent blasting, and A sued B. — Recovered. B & C partners. Cotter v. Bettner, i Bosw. 490, N. Y. (1857). 6. CO'Owner of mine sharing profits of working it, a partner. B sold to sister for $13,000, 1-4 interest in mine, stipulating for i. royalty; 2. exclusive management ; 3. 3-4 net profits in monthly settlements ; 4. coal limited to particular tract; 5. pre-emption right if C sold, and, 6. same proportion in tile works, if built. C signed without reading contract, and B recorded it. A sued C as partner for note of $8,898.31. — Judgment for C reversed. Proprietary title and corresponding share of profits disclose a partner. C had " a proprietary interest in the busi- ness." Record sufficient reliance for plaintiff. State Nat. Bank v. Butler, 149 111. 575, s. c, 36 N. E. 1000 (1894). 74 CHAPTER II. THE ANTECEDENTS OF A PARTNERSHIP. §16. The object of trade, and also of partnership as an instru° ment of trade, is gain, and unless a business is undertaken there can be no partnership.^ Gain means a positive acquisition of property. Mu- tual protection against loss does not add any new pro- duct, but simply provides security for retaining what is already possessed. A mutual protection, or mutual insurance, association does not amount to a partner- ship.^ As Straccha puts it: "Assecuratus non "qumet lucrum, sed agit ne in damno sit."^ Nor does a tontine involve a partnership as the agent of pro- duction. The right to succeed upon the death of a member to his share does not result in a gain, but in a division among the contributors of the fund, which they possessed at the beginning.* But insurance may be carried on as a business, and then a partnership would result from the undertaking, unless the insurers organized as a corporation,^ for any business under- taken for gain is a partnership, unless transacted under a corporate franchise." §l6. ANTECEDENTS. PT. I, CH. 2. The French law does not limit the partnership to the profits made in a business, but enlarges the scope of the relation, so that it comprehends any association producing a benefit which can be estimated in money." The pleasure and advantage de- rived by the citizens from frequenting a park would be suffi- cient, it is said, to make them partners in buying it, the value of recreation being equivalent to money.* The Commercial Code, however, regulates the affairs of business, and hence arises the distinction which is made between Civil and Com- mercial partnerships. The authors of the Code Napoleon adopted the definition given by FELICIUS of a partnership :' "Sodetas est contractus "qui consensu, rebus, vel operibus, vel industria intervenientibus, "ad communem qucestum, sen lucrum, perficitur."'^ u. "Que doit-on entendre par benefice? Faut-il necessairement qu'il "consiste en une somme d'argent a partager? Evidemment non. " II suffit que ce soit un avantage commun appreciable a prix d'ar- "gent." Rousseau, Socletes Civiles et Commerciales, s. 64, Paris, 1878. b. Rousseau, s. 66. c. De Societate, c. I, No. 4, cited Troplong, p. g. d. " La societe est un contrat par lequel deux ou plusieurs personnes " conviennent de mettre quelque chose en commun dans la vue de " partager le benefice qui pourra en resulter." C. C, s. 1832. I . Club for mutual benefit, though possessed of property, Is not a partnership. Independent order of ' Rechabites,' organized as the 'Washington Tent,' for temperance, justice, relief in sickness, and observance of obsequies. The association acquired $4,600. A, alleging disagreement and practical exclusion of members, accompanied by diversion of funds, but not averring that he had first appealed, as required by the Consti- tution, to the ' High Chief Ruler,' or to the ' High Tent,' moved to dis- solve the association, although its By-Laws forbade a dissolution while ten members remained, unless by unanimous consent. — Motion refused. Association not a partnership, because not for gain, and property merely an incident to the main purpose. Lafond v. Deems, 81 N. Y. 507 (1880). An association, which is not for gain, is no partnership, and plaintiff need not join representatives of deceased joint obligor. Lodge of Ancient Ma- 76 Pt. i,Ch. 2. Antecedents. §i6. sons appointed committee, B, to provide for erection of a temple. B obtained loans on sealed certificates of the Lodge, which had never before issued them, except to attest membership, or to communicate with other lodges. B reported proceedings to Lodge, which approved his course. Temple was constructed. Lodge occupied a third floor room, and rented out the rest of the building. A, who lent $ioo, brought assumpsit against over a hundred members, as partners, on a certifi- cate. On trial A testified as to the loan, and examined defendants. — Verdict for A set aside. Association no partnership, because not for gain. No members except those who authorized the construction were liable to A. He was competent, because Act 2; May, 1878, P. L. 153, equitably extends to joint debtors, and Act 22 March, 1861, P. L. 186, don't require substitution of deceased member's representatives, and therefore liability only of survivors at issue. A might prove his case by defendants under Act 27 March, 1865, P. L. 38. Ash v. Guie, 97 Pa. 493> (i88i). Association, unless for gain, not a partnership. A, one of twenty Christian converts associated to promote spiritual and mental develop- ment, was convicted under 31 and 32 Vic. c. 116, s. I, for embezzling the "partnership" funds. — Conviction reversed. Association not a partnership, because not for gain. Queen v. Robson, i6 Q. B. 137 (1885). 2. Subscription to mutual protection fund no partnership. Society formed, by annual subscription of its members, for protection of their interests in trade, acted through a committee, which it stipulated to indemnify out of the funds raised by subscription, or by an assessment. Committee, upon A's qualifying himself by becoming a member, appointed him printer and stationer for the society. He sued the committee for mate- rials and services. Defence : A their co-partner, who gave credit to the fund. A obtained verdict. — Sustained, because no finding that A looked only to fund for payment, and exonerated committee from lia- bility for Its acts. Subscribing to the fund didn't make A a partner. Caldicott v. Griffiths, 8 Exch. 898 (1853). Mutual insurance not partnership. B, a mutual insurance Co., with members in different States, insured A, of Georgia. His widow claimed that the war prevented him from paying the premiums, and asked to have the policy reinstated upon the payment of the arrears. Defence : B a partnership, and dissolved by the war.— Not a partnership ; but if so, A entitled to a share of the assets at the date of dissolution. Cohen V. N. Y. Mut. Life, 50 N. Y. 611 {1872). 3. De assecur:gl. 20, No. 4, cited, Troplong, Societes Civiles et Com- merciales, vol. i, p. 21, Paris, i843. 77 ii/. Antecedents. Pt. i,Ch. 2. 4. Bravard-Veyrieres, Traite des Societes Commerciales, pp. i;, 26, Paris, 1862. 5. Vavasseur, s. 23. 6. Any association for gain, not a corporation, is a partnership. Car-trust a partnership. Association formed to buy rolling-stock, and to sell and let it to R. R. Co., which agreed to pay in ten annual instalments the price, which should be sufficient to cover principal, interest and expenses. JVlembers furnished money, and received certificates for principal and interest at 6 per cent., but payable only out of net rentals. Trus- tee held title, issued certificates, and executed leases. Association taxed as partnership.— Liable. Ricker v. Am. Loan and Trust Co., 140 Mass. 346 (1885). §17. The commencement of a partnership is fixed by the will of the parties. When does the partnership begin? If not at once/ the date may be fixed at the outset,^ or left open for subsequent determination by the partners; or by a third person ; or it may depend on a contingency. The commencement of partnership, if made to de- pend upon a condition, which would prevent the part- nership from coming into existence unless the condi- tion had been performed, will not be suspended where the partners proceed to carry on the business, and do not wait for the performance of the condition. They will be deemed to have waived the performance by transacting the business, as if there had been no con- dition.^ The unauthorized act, however, of a party does not commit the firm and establish the business.* 78 Pt. i,Ch. 2. Antecedents. §17. I. Partnership dates from agreement, not from beginning business under it and tlie purcliase by a partner, though for his quota, if made on joint credit, binds all in a name which he adopts. B agreed to erect a distillery on his land and let it for 1 5 years from date of the agreement, C & D to fit up the establishment, stock it, and adjust each partner's quota by his contri- bution. C & D to conduct the business in consultation with B. All to share the cost of distillery, and jointly own stock and establishment. D, on strength of B's credit in N. Y., bought merchandise, for which he gave a note in B, D & Co.'s name. Nothing was done to carry out the agreement, and the business never began. Defence: Purchase by D for his contribution and partnership a project not realized, because the conditions preliminary to its existence were not performed. — Judgment for A. The defendants were jointly interested in the business, and were co-owners of the merchandise, which was to be sold for their mutual benefit. The agreement took effect on its execution, and em- powered each to bind the others. C's use of a name implied its adoption by B and D. Aspinwall v. Williams, i Ohio 84 (1823). 2. If a father puts his son into business with another, as a clerk, on a salary graduated by the profits for three years, and at the expiration, as a partner, the son would not be liable for debts contracted during the three years, because the provisional arrangement lasted until the end of the term. Ad interim clerk not a partner until the term expires. B, a manufacturer, advertised for a partner, and C's father, in response, arranged for C to become B's partner. The arrangement was subsequently postponed for 3 years, and it was agreed, that in the interval C should have a salary, ascertained by the profits, but not so as to be liable as a partner. C acted as a partner by opening letters and discharging clerks, and stated that he was B's partner. A, who was in the habit of sup- plying B with goods, sued C for the price of goods sold after the ar- rangement. A did not know, when he sold the goods, of C's state- ment, that he was a partner, though B then told him that C was his partner. — Not liable, as B's declaration to A did not affect C, and his admission was not known to A, when he gave B credit. Arrangement made C a clerk for 3 years, and not a partner until the term expired. Edmanson v. Thompson, 8 Jurist N. S. 235 (1861). If a lender took interest and a percentage of the coal mined, and, as security, an assignment of the lease and title to the works, and stipulated for three-fourths of the profits when repaid his loan and expenses, he would not be a partner, 79 §17 Antecedents. Pt. i,Ch. 2. because the partnership would not begin until the loan was refunded. Equitable mortgagee of mines and prospective partner, upon repayment of loan, is not a partner until repaid. By articles, B advanced C £2,000, for working a coal mine, and assumed liability for that amount. B stipu- lated for 10 per cent, interest and for a commission of 3d. a ton on the coal mined. He took assignment of lease and title to works until he should be reimbursed. After payment of advance, royalties and ex- penses, he was to have 3-4 the net profits, and C 1-4 and a salary. C worked mines, and became insolvent. B died before his advance was repaid. A sued B's executors for debt incurred in working mines.— A lender, and not a partner until loan repaid and subsequent arrange- ment took effect. Dean v. Harris ; Harris v. Butterfield, 33 L. T. 659 {1876). 3. Carrying on business waives condition of partnership. JVot war, but inter- diction of commercial Intercourse, dissolves partnership. Articles of N. O. firm, in which B was a general partner, declared that they should be void unless C became a special partner. C refused, but the firm continued business, and accepted a draft in A's favor, April 23, 1861. B returned to his home in N. Y., April 27, i86i. A sued B. Defence : War, which began April 13, by attack on Sumpter, dissolved the partnership. — Re- covered. Firm waived C's membership by continuing business. Though war begun, partnership not dissolved until commercial inter- course interdicted by President's Proclamation in August, 1861. JVlcStea v. IVlathews, 50 N. Y. 166 (1872). Beginning business makes partnership. By articles, partnership between A & B was to begin when each had contributed his quota. B paid his share in part ; A paid in full. They hired and stocked a store, and began business. B never paid up his contribution; and A, being excluded from store, sought to recover, as owner, the possession of stock bought with his money. — Beginning business constituted a part- nership, and was a waiver of condition as a preliminary. Stock be- longed to firm. B's failure to contribute, or A'sexclusion,wasa ground of dissolution, and A's remedy was a bill for an account. Azel v. Betz, 2 E. D. Smith 188, N. Y. (1853). 4. Act of partner in excess of authority does not begin the business. B con- tributed patented articles, and sold them. The proceeds were equally divided. C authorized to take notes in payment, and endorse B & C's name. D paid a pauper $2, who made a note to B & C, and C en- dorsed It, in B & C's name, to D. He endorsed it to A, a bona fide purchaser. A sued B & C. B's defence : No partnership and note a 80 PT. I, CH. 2. ANTECEDENTS. §l8. forgery. — Judgment for B. C's first act, being in excess of authority, was a forgery, and B not estopped, because no business begun, to cre- ate reputation of partnership, Hotchkiss v, English, 4 Hun 369 N. Y. (1875). §18. The postponement of a partnership, which enables an option=holder to experiment with the business, does not affect third persons. The right to make the partnership hang in suspense until the issue of its success or failure is determined, although absolute for the contracting parties,' is none the less subject to the rights of third persons. The parties cannot make the commencement conditional, for the purpose of concealing a partnership which does in fact exist.^ If they were permitted to speculate at the expense of creditors, a business could be estab- lished and controlled by a principal, who might shift its liabilities upon a man of straw, and monopolize its profits himself. The disguise is all the more trans- parent when the option to become a partner, if exerted, relates back to the beginning of the business, and entitles the holder of the option to share the profits from the start.^ The prima fades is that the option does not relate back, but that the membership dates from the exertion of the right, and that proof must be made to establish a relation back to the inception of the partnership.* During the interval, the character of the option-holder is determined by his acts. If the §l8. ANTECEDENTS. PT. I, CH. 2. business was in reality controlled by him, and the right was reserved for the purpose of hiding the fact during the period of experiment, until he could pro- claim his position without incurring the risks of the business, the form will not affect the substance of the transaction. 1. Partnership to begin with the making of profits, does not obtain until profits accrue. A rented factory, furnished capital, supplied machinery, and bought materials for silk lace manufacture. B was superintend- ent, and was to receive £23 week from A until profits should be made, and then 1-2 profits. A sued C, the sheriff, for seizing and selling manufactured goods at instance of B's separate creditor.^Recovered, as B could not be a partner until there were profits to be shared. Bur- nell V. Hunt, 5 Jur. 650 (1841). 2. Option to take profits makes a partner. Holding out. A owned a saw- mill, and B managed it, under the name of B & Co., for a share in the profits or a salary, at his election. In the spring, A contracted to saw D's logs. During the summer, B refused to saw them, and, in the fall, elected to take a salary. A, who subsequently bought out B, sued D. He set up the damage caused by B's refusal. Deduction allowed. — Holding B out as partner made A responsible for his acts. B was a partner until he exercised his option, because of his right to the profits. Chamberlain v. Forbes, 3 S. C. 277, N. Y. (1874). 3. The legal obstacles are: i. He is not a partner by con- tract, upon which he can be charged ; 2. he is not an undisclosed principal; 3. he is not held out. But the answer is that if the op- tion is merely a cover for an interest in the business, the holder is an undisclosed principal. The control of the business through a dummy would show such interest. The Court, which said he was not a partner, limited the decision to the relation inter se, and the negative pregnant implied a partnership quoad alios. Option to become a partner makes no partnership, Inter se, until exerted. A & B agreed that B should carry on business as B & Co., which should, from the outset, be for the benefit of himself and of A's nominee, if A should nominate a partner within 8 years. A undertook to make advances, and go security for B, who in turn, stipulated to carry on the business with A's nominee for 21 years, and to give notes for amounts 82 Pt. I, Ch. 2. Antecedents. §i8. advanced by B. B kept A advised of the state of the business, and A had right to inspect the boolts. Cash and bills receivable were de- posited with the cashier, who applied them in payment of firm liabilities. During the first 8 years, the proceeds should be applied to pay B, board for himself and family, and £100 a year, and A his advances, with interest, and then B should take 1-3 and A's nominee 2-3 of the profits and losses. Before 8 years expired, B became bankrupt, and A, who had not elected to nominate himself as a partner, proved for his advan- ces. — Entitled, as he had not exercised his option to become a partner, and as there were no firm creditors with whom he competed. Ex parte Davis, in re Harris, 4. DeG. J. & S. 523 (1863). 4. If a lender took no interest, but stipulated for one- seventh share of a market when erected, and then the loan went on account of payment, he is not a partner with the builder, because the agreement referred. to completion. Burden on plaintiff to show tbat partnership agreement relates back. B advanced money, with interest, to C, a builder, for the erection of a market, and, on its completion, agreed to take 1-7 interest in it. His advances went on account of payment, and if not equal to valuation, he agreed to pay the balance ; if in excess, C agreed to pay interest on surplus as a loan. Profits had accrued before agreement was made, but no account had been taken. A sued B as a partner, for services and materials furnished during construction of building. Verdict for defend- ant. — Sustained. As a contract prima facie speaks from its date, and as B had taken no share in the profits, the jury was entitled to negative a partnership from the beginning of the operation, although B'sadvances made without interest, resembled a contribution. Howell v. Brodie, 6 Bing. N. C. 44 (1839). Lender's option does not make him a partner. B, on i September, 1867, made advances to C, an oil refiner, and took a mortgage on his works as security. C agreed to repay advances before January i, 1870; until then to pay B 30 cents a barrel for oil refined, to keep accounts, and let B inspect books, and to keep works insured and unincumbered. If B elected, before January i, 1879, to become a partner, the advances would become his contribution, and he would share profits from com- mencement of business, returning the 30 cents a barrel received, and paying C an annual salary of $2cco. B did not elect. A sued B & C as partners. — Judgment for defendants. Irwin v. Bidwell, 72 Pa. 244, (1872). But where a man's contribution is already in the business, 83 §19- ANTECEDENTS. PT. I, CH. 2. the option to become a partner is practically the right to take the profits, if any accrue, and this is a partnership. §19. The contribution is made by a partner to the firm, and is his separate obligation. There is no partnership in the contributions. Al- though the partnership may begin before the contri- butions are made, yet the firm is a subsequent associa- tion, and the contributions are individual obligations antecedent to the partnership. Being the quotas which the partners contribute, they charge the indi- viduals, but not the firm. If a partner contributes his quota of stock to the firm, and it becomes firm prop- erty, his co-partners do not become liable for the price. The buyer alone is liable, and he is the partner.^ if the purchasers agree to pay according to their quotas for a common stock, they will not become jointly liable.^ The firm does not assume the debt of the in- dividual partner for his contribution,^ and his attempt to impose it upon his co-partners is a fraud, which would be sufficient to set aside a judgment for collu- sion against the creditor who knew the purchase was made for a contribution.* The co-partners become liable when the sale is made directly to the firm,^ or to a partner, if he buys for the firm, although on his separate credit. The business cannot be severed and turned into single ventures in 84 PT. I,CH. 2. ANTECEDENTS. §19. order to let the partner treat the separate purchases as his contribution.® Though if nothing is undertaken but a series of optional ventures, the purchases would stand as contributions.'' As it is a preliminary condition, the partners may enforce the contribution by an action. But after going on with the business without the contribution, they could not exclude the partner who failed to pay his contribution. The non payment would entitle them to dissolve the firm,but not to take the law into their own hands and exclude him.* 1. Merchandise ordered by a partner, as his contribution, a separate debt. B, owner of ship, and others agreed, jointly, to fit her out for a voyage. Each furnished his portion to the cargo, and shared the profit and loss of the adventure in proportion to his contribution. A proved against B, who became bankrupt, for copper bought as his contribution, and subsequently brought assumpsit against the others, as partners, for the price. The defendants had accepted drafts for the copper. — Though liable on drafts, not in assumpsit, because each paid for his own con- tribution, which did not become joint stock until the voyage began. Saville v. Robertson, 4 Term. 720 (1792). 2. A purchase in common not partnership. B, a merchant at Leeds, who was in the habit of dealing with A, at Hamburgh, ordered a cargo of wheat, on account of himself and C, and directed bills to be drawn up- on each for his moiety. The correspondence described the adventure as joint. The cargo was shipped, and each took his half. B paid for his share, and A sued him for balance of price due from C, who had become bankrupt. — Not C's partner, because no sharing of profit and loss, but a separate purchase by each. Gibson v. Lupton, 9 Bing. 297 (1832). 3. Partner's deed o{ land held for firm to repay his contribution, gives no title against firm creditors subsequently obtaining judgment. B, C & D, part- ners, bought land, though they took as tenants in common. D sold out to B & C, who agreed to contribute $;,ooo each, to carry on the business. B conveyed to A, who endorsed his note for$5,ooo, and who knew the facts, a moiety of land as security. B & C failed. Subse- quent judgment-creditor of firm obtained decree for proceeds. A 85 gig. Antecedents. Pt. i, Ch. 2. appealed.— Judgment affirmed. Firm title paramount to A's deed, whicli was, in effect, a mortgage for B's contribution. Banl< v. Sawyer, 380.5.339(1882). If insolvent ; the firm cannot assume the contributions of its members and its attempt to pay them out of the firm assets would be void in law. Payment of contributions by insolvent firm avoided by law. B & C formed, Marcli 7, 1891, partnerstiip, each agreeing to contribute $4,000. Eacii borrowed amount from D and E respectively, and, April i, iSqi, contributed $8,000 to firm. They executed Feb. 23, 1892, being then insolvent, chattel mortgage of firm stoclcto secure D and E, and enume- rated creditors. Property sold and out of proceeds D and E repaid in full. Creditors' bill to set aside mortgage for D and E.— Decree : D and E refund proceeds to receiver. Contributions individual debts, and Statute of Elizabeth avoids insolvent firm's payment of them. Bannister v. IWiller, 32 A. 1066. N. J. (i895)- 4. If partner gives firm note and judgment to lender, for money to buy bis contribution, firm creditors may attack: judgment coilateraily for coiiusion between partner and lender to defraud tbem. B agreed to furnish capital for firm of B & C. They bought out D, whom B paid $780, but raised the purchase-money by giving afirm notefor$i2oo, which A discounted for B. B gave a judgment note of the firm and of himself to A, who entered up judgment and took firm property in execution. C asked to open judgment. Refused. He then confessed several judgments to D etal., firm creditors, one of whom sold the firm property on execution, for $916. A claimed priority. Auditor awarded fund to D et al., and excluded A as B's individual creditor. — Affirmed. Judgment collusive, and creditor could attack it before auditor. JVlcNaughton's Appeal, loi Pa., 550 (1882). ;. Direct purchase for tbe concern, and not for a contribution to it, charges the partners. B & C agreed to repay D his advances in a previous adventure out of the returns from a new venture, and to go halves with him in the surplus of profit or loss. The goods were to be bought and paid for by B & C, and shipped on a certain vessel. D also consigned goods to the supercargo, for sale on joint account with B. A sued D for the price of goods bought by B & C for the shipment. — Liable as a partner, because the goods immediately upon the purchase became stock of the concern, without any intermediate ownership in B & C. Gouthwaite V. Duckworth, 12 East. 421 (1810). 6. Purchase on separate credit for joint account charges firm. B, C & D 86 PT. I, CH. 2. ANTECEDENTS. §20 manufactured leather in partnership, A buying as an individual, on his separate credit, one-half the hides, B and C the other half, and dividing the manufactured leather for sale as separate individuals. A sold B hides and sued the firm. — Recovered. The purchases and sales were made for the firm. Everitt v. Chapman, 6 Conn. 247 (1827). 7. Partner's purchases contributions for optional undertakings. B, C & D agreed for shipment and sale of cattle on joint account. Each might buy and present cattle for shipment. If accepted by the others, they became firm stock. A, who knew nothing of joint arrangement, sold B cattle. C rejected, but D accepted, them, and they were sold for joint account of B and D. — A's judgment against firm reversed. No partnership until contribution accepted. Valentine v. Hickle, 39 Ohio St. ig (1883). 8. Failure by partner to pay contribution in full don't entitle the co-partner to exclude him without a dissolution. A, B & C formed partnership to erect buildings and carry on business. Each to contribute $10,000. A owned land, valued at $6,000, which he put in as part of his contribu- tion. After business had begun, B & C excluded A, because he had not paid up in full. A brought bill for dissolution and account. — Decree. B & C might have brought suit for balance or for dissolution, but could not exclude A without a dissolution. Hartman v. Woehr, 3 C. E. Gr. 373 (1867). §20. If taken into a firm already formed, a partner cannot be held for a contribution, unless he agreed to make one.' A partner not being liable for the contribution of his co-partner, is not charged for the contribution made before he became a member of the firm. He is not charged as a partner before he becomes a partner, nor after he joins the firm are his liabilities carried back, and made by relation to precede his membership. If admitted to share in a shipment after the merchandise 87 §2o. Antecedents. Pt. i,Ch.2. was bought, he does not become liable for the price.^ The buyers alone are liable, because the merchandise alone was contributed by them. In the absence of a stipulation that he should reimburse them a part of the outlay, in proportion to his share of the profits, the law will not imply such an obligation. Unless they stipulate for a contribution by him, the capital borrowed by the firm for its business cannot be charged as a joint expense, and a portion corresponding to his share of the profits be deducted from his account.^ The law does not make a partner contribute, The contribution is the result of his agreement. An existing partnership is presumably equipped with its capital stock, fur- nished before the firm began business. 1. Gow attributes this to the partnership contract: "A subsequently " acquired joint interest has not the effect and operation of altering and "varying the nature of the original contract. . . If such an ex post "facto operation were ascribable to an after-acquired right, the law " would in fact create a supposed contract, when the real contract was " consummated before the joint interest and consequent joint rislc was " in existence. No subsequent act or acknowledgement therefore will " create in a party the character of, or render him liable as a part- " ner upon a contract, if it clearly appears that a partnership did not " exist at the time the contract was made." Gow on Partnership, 31. London, 1823. 2. Addmittlng party after purchase of goods to share In adventure does not commit him for price. B bought goods of A for shipment to the Baltic, and let C take 1-5 part in the adventure upon delivery of the goods on board. A sued C for price. — Not liable, because the goods remained B's property until contributed to the joint enterprise, by giving C an interest in them. Young v. Hunter, 4 Taunt. 582 (1812). 3. Unless a partner is liable to contribute capital, his co-partners can not charge him interest on money borrowed as working capital for the firm. B & C owed A $1,126.36 for arrears of salary, when they took him into the firm, and gave him 1-5 of the net profits for 5 years, and 1-4 for 2 PT. I, CH. 2. ANTECEDENTS. §2 1 years. A, in account claimed tiiat thie net profits were $35,776.38, but B & C estimated tiiem at $31,121.69. The difference was tiie interest on money borrowed by B & C, as capital for the business. — Decree for A. The inference to be drawn from the articles and conduct of the partners was that of B & C should furnish the capital. If they borrow it, they should pay interest for the loan, and not A, who made no agree- ment to contribute any capital. Topping v. Paddock, 92 111. 92 (1879). Third persoa aware of partnership contract cannot lend firm to make up partners' deficiency of contribution. D agreed to erect building for preserv- ing eggs, and to manage egg-business as D & Co. B and C agreed to advance $25,000., and D to refund 1-2 cost of building; 1-2 profits to D, and 1-4 each to B and C. Later, advance limited to $12,000., which B and C contributed. D borrowed on C & Go's note $3,000. of A, who knew of the contract and also of the deficit. A sued firm.— Judgment for B and C. Bound to enquire, whyB and C did not contribute $25,000. Baxter v. Rollins, 90 Iowa 217 s. c. 57 N. W. (1894). §21. The Court determines the legal effect of the contract, but its terms, if oral, are found by a jury. Who ascertains whether a partnership exists or not depends upon the nature of the contract. If it is in writing, the court interprets the meaning of the par- ties and determines the legal effect of the articles. If the contract is not in writing, the jury finds what the contract was/ and the court decides the legal effect of it.^ I. What the contract between the parties is, must be found by a jury. A, a retail dealer, had an arrangement with B, the brewers, to supply him with beer. A's version was that B should have i7sh. a barrel out of the profits in consideration of his paying 1-2 A's rent, and A should 89 §22. Antecedents. Pt. i, Ch. 2. have the rest of the profits. B's version was, that he should pay 1-2 of A's rent, and repay himself by adding lysh. a barrel to market price of beer which he supplied to A. The question, upon petition of A's as- signees in bankruptcy, was whether this agreement constituted a part- nership. — Which version was true, was an issue of fact for trial by a jury. If B shared the profits, he was a partner ; if he charged his half of the rent in the price of the beer, he was not. Ex parte Lang- dale, 18 Vesey, Jr., 300 (i8ii). 2. Upon undisputed facts, question of partnership a conclusion of law. B & C agreed to contribute capital to buy live-stock, and to share the profit and loss of their dealings. B, who did not complete his contribution, gave a bill of sale for stock to his separate creditor. A, who brought trover. B & C insolvent. C's defence: Question, whether B partner only in profits or also in stock, for jury. — Judgment for defendant. Court decides upon undisputed facts. Firm title not devested by B's sale. Kingsbury v. Tharp, 61 Mich. 216 s. c, 28 N. W. R. 74, (1886). §22. Unless the terras of the contract have been definitely settled, the contract is not concluded. As the partnership results from a contract, the terms must be finally settled by the parties, or there will be no contract which can be enforced.' The evidence, unless sufficient to sustain a verdict, will not be sub- mitted to the jury." The business, if undertaken, would not operate as a substitute for the contract, if the parties meant to agree upon the terms but failed to complete the bargain.' I. In balance of averment and denial of partnership, the fact is not established. B had contracted to construct railroad. A brought account for 1-4 profits, $25,000, averring oral contract of partnership for building the road, TheonlyevidencewasA'stestimony,andB'sdirectionto station- agents to recognize A's receipts in delivering freight. B denied any 90 PT. I, CH. 2. ANTECEDENTS. §22. partnership. — Judgment for B. Answer not overcome, and direction consistent with A's having charge of the wori< for B. Osborn v. Fiti- gerald, 26 Neb. 574 s. c. 42 N. W. 418, (1880). Oral contract for partnership, if uncertain not enforced. A, orally, agreed to assign half his interest in invention to B, who should procuje patent and furnish stock, machinery and tools, and they should make and sell screw-drivers for joint benefit. A assigned half to B, and brought bill to enforce contract. — Dismissed. Assignment not a sufii- cient writing, as it did not embody terms of partnership, which was oral. No execution by A, who should join in business during life of patent. Specific performance not decreed to enforce partnership, especially If indefinite. Morris v. Peckham, 51 Conn. 128, (1883). 2. Evidence for Jury must be sufficient to liold verdict. B bought treeii, worked them into cross-ties and sold them to C, who paid B's drafts on him to A and others. A sued B and C — Non-suit affirmed. Evi- dence insufficient to go to jury. Bryan v. Bullock, 25 S. E. 865 N. C (1896). 3. Specific performance of partnersliip contract not enforced until terms defi- nitely settled and plaintiff able to fulfil bis obligations. A, B & C were engaged in organizing a sewage company. B was to furnish capital, which was to be repaid out of profits, and was to receive a commission on the transactions. C divulged his process for making yeast, and they agreed to be partners for its manufacture. B was to supply the money, and A and C do the work. They started three different places of business under various names, though B took leases and kept bank account of each in his own name. They had articles drawn up, but did not sign them, and then quarrelled and put A out. He brought a bill to enforce the contract. — Specific performance refused, because he had neglected to secure execution of the contract and was never in a position to bear the losses imposed by its terms. Ellis v. Ward, 21, W. R. 100, (1872). No partnersbip until terms fixed. B agreed to buy of A B and C hotel for 75,000., form partnership with A, conduct hotel and sanitarium and convey at same rate 1-4 to A on execution of articles. They started business as B & Co. February 5, but iWarch 21, 1895 being unable to agree on terms,. B ejected A, who brought account. — No partnership for which account would lie. Martin v. Baird, 175. Pa. 540 s. c. 34 A. 809. (1896). 91 §23. Antecedents. Pt. i, Ch. 2 §23. The intention to be partners is not equivalent to a con= tract of partnership. The intention may be reconsidered, and until em- bodied in a contract it does not charge the parties who entertain the project as partners by anticipation.' The failure of a projected company to come into ex- istence after the applicant has qualified himself as a member, would save him from liability as a partner. He would have made an offer to become a partner, but there would be no company in existence to accept iV A would-be-member is not liable for the acts of the projectors, except so far as they were his agents.^ On the other hand, if an applicant takes part in organ- izing a company, but does not comply with the requi- sites of admission, he does not become a member in due legal form.* He is not a partner, and cannot be charged as a member of the company. He may even have the right to demand the privileges of membership, and yet not be a partner; he may hold scrip which entitles him to demand certificates of stock, but he is not a partner until he exerts his right and becomes a member of the company.' 1. Intention not equivalent to contract of partnership. B, and 4 others, bought cotton, with intent, but without contract, to sell on joint account. B held the cotton. He consigned it to A for an advance, pretending that he had authority. A lost on consignment, and sued the others for the loss. — No partnership until intention to sell passed into a contract. Baldwin v. Burrows, 47 N. Y. iQg, (1872). 2. Taking stocl< in projected Co. 00 partnerstiip until Co. establislied. Pros- 92 Pt. I, Ch. 2. Antecedents. §23. pectus issued for projected Co. to be organized by a deed, and all who did not execute it within 30 days were to forfeit their interest. B applied for shares, which were allotted to him, and he paid the first deposit, but took no part in the concern, though his name was inserted, by Secretary, in the list of subscribers on the Go's books. A sued B, as a partner, for services and materials furnished the Co. — Not liable, because he had only offered to become a partner in the Co., which never came into ex- istence, and had not constituted the projectors his agents. Fox v. Clifton, 6 Bing. 776 (1830). 3. Promoters not liable beyond subscriptions. A, B et al., subscribed and paid for stock of projected corporation for a college. A advanced money in erecting buildings, and sued B et al., for contribution. — Not liable. Subscription limit of defendant's undertaking. Shibley v. Angle, 37 N. Y. 626 (1868). Intermediate partnership until incorporation. A held notes of B & C, partners, in Connecticut, January 24, 1877, when D, of Boston, and E, of Providence, advanced $2,oco. for a quarter interest in the business and a quarter of the capital stock of a corporation to be organized to carry on the business. A, upon hearing of agreement, did not press for payment, but took renewal notes after January 24, 1877. A also discounted note, June 22, 1877, for $300. Neither D nor E took part in business, or knew of contract being divulged to A. — A obtained judg- ment for $300. D and E partners from January 24, 1877. Conneticut law governs question of partnership. Citizen's Bank v. Hine, 49 Conn. 236 (1881). A partner's status in a firm may be assumed witbout liability as a qualifi- cation for incorporation. A, B & C, partners, contemplating incorpora- tion, agreed with D to take him into their business upon his paying $5,000. in cash and giving his note for $5,000, and to divide the shares in the projected corporation in proportion to the contributions in the business. D was to share the profits from the date of his payment. The firm was insured, and a clause avoided the policy for any change in the title or possession of the property, or if the interest of the assured was anything but the entire unconditional and sole ownership of the policy. Defence: Change by D's becoming a partner.— D not a part- ner. Prospective stockholder and intermediate lender. London Assur- ance Co. V. Drennen, 113 U. S. 51 (1885); 116 U. S. 461 {1886). 4. Scripholder, thougb intending to become a partner, is not such In fact. B applied for 30 shares of a projected Co. 10 were allotted to him. He paid, on account, £15 a share, signed 'some' deed at Co.'s counting- house, received scrip, and attended a shareholders' meeting. A sued 93 s24. Antecedents. Pt. i, Ch. 2. him, as a partner, on an acceptance of the Co. — Evidence insufficient to charge B as a partner in fact, or by holding out. Dickinson v. Valpy, 10 B. & C. 128(1829). Signing prospectus, and aiding orgaaization of a company, is not joining it. B signed prospectus, which announced the project of a company and the terms of subscription. He attended a subscribers' meeting, and solicited others to take shares, but never paid his subscription. A sup- plied goods to company, and sued B as a partner. — Not liable, because a declaration of intention to be a partner is not sufficient to make out an actual partnership. Bourne v. Freeth, 9 B. & C. 632 (1829). ;. Holding certificate and paying deposit do not make a stoclcholder. B paid deposit on a share in Co., and received a certificate, which described her as the holder of share No. 133 of Co.'s stock. She had never signed any deed, though she had spoken and written of herself as a shareholder. A, who knew nothing of her holding herself out when he made the sale, sued her for price of merchandise sold and delivered to Co.— Not a member, although she thought she was, as the certifi- cate conveyed no interest in the stock. Vice v. Anson, 7 B. & C. 409 (1827). §24. Trading in corporate form without a franchise, is a partnership. Persons acting in corporate form without a fran- cliise are partners, and are liable for tlie acts of the administration which they have organized to carry on the business.' Even in the case of a valid incorpora- tion the stockholders theoretically direct and control the management of the corporation, and, as the ulti- mate repositaries of the corporate power, they au- thorize and sanction its exercise. This theory would 94 Pt. I, Ch. 2. Antecedents. §24. charge all the corporators as partners, were it not for the exemption secured by the franchise.^ The immu- nity from liability for joint transactions can be obtained only by a grant from the State. It is the charter which secures the exemption. Nevertheless, trading as a corporation has been held not to charge the stockholders as partners where they, or the parties who dealt with them, transacted business in the belief that they had a charter.'' The corporate existence in law was justified by faith. But they were none the less doing acts which constitute partnership, and they are charged as partners by law, which they are bound to know. It is no answer to say that they should not be made partners by operation of law, unless the law renounces its prerogative, and refuses to pro- nounce the legal effect of the transaction. The rea- son for the decision is simply the hardship of the common law,^which charges every proprietor of the stock with unlimited liability as a partner, although he took no part in the management of the;business (§3). Doing business in corporate form without a charter presents an extreme application of the dogma. Where there is a corporate franchise, the stockholders are not, practically, principals in the business, for they possess but a shadow of power in the management of the corporation. This is the justification for the exemp- tion which the sovereign grants by the charter. The member of an unincorporated association is as remote from the management and control of the organization as the corporator in a chartered company. This brings out the hardship of the member's position in being 95 §24. Antecedents. Pt. i, Ch. 2. charged with unlimited liability, but there is for him no relief consistent with the structure of the Common law, except a grant of immunity from the Sovereign power. A defaiio is an illegal corporation, because the incor- poration was not effected according to law. The color of authority for the existence of such a corporation is derived from tradition. When the franchise was a direct grant made by the Executive or Legislative department, the charter was deemed the act of a co- ordinate branch of the Government, and, in deference to the Political Power, was treated as a judgment which could not be impeached collaterally. The pro- hibition by Constitution of special grants, and the statutory regulation of incorporation has made it sub- ject to judicial cognizance, and has changed the char- acter of incorporation from a Public to a private trans- action. The incorporation has become, and is now, the act of the incorporators. In cases of incorpora- tion under general statutes, the Executive department of the Government is powerless to prevent the incor- poration. Its action is purely ministerial. Since provision has been made for incorporation by general statutes, and compliance with the statutory requirements is the only condition of the franchise, a corporation has the status of a special partnership. The corporator, like the special partner, claims exemp- tion from the full measure of the liability which, by the Common law, attaches to his acts. The special partner, however, furnishes co-partners who are liable to the full extent for the joint acts, whereas all the 96 Pt. I, Ch. 2. Antecedents. §24. corporators claim the benefit of a limited liability. In a choice between a corporation and a special partner- ship, the law, which exacts the security of individual responsibility, must prefer the special partnership, which involves a narrower exemption. But neither is privileged in the first instance. In each case immu- nity must be proved, for it is a universal principle that he who claims a special privilege must make out the exception upon which he relies. The burden of proof rests upon him, and is the condition of his right. If the law has prescribed the requisites, nothing short of compliance with the requisitions of the law will be sufficient to establish the exceptional privilege. The question arose under general mining laws, and the change in the character of incorporation, from a Public to a private act, was recognized by the Supreme Court of Pennsylvania.* The position was subse- quently reconsidered, and the decision declared not to be law.^ The change of the process was admitted, but the effect of the change was denied. Upon what basis of reasoning does the denial rest? The staple of the argument is the miserable plight of the stock- holders, who are charged as partners. But hardship proves too much. If unlimited liability for joint acts is unjust, the Common law exaction should be restricted, and a limited liability allowed where the corporator, or partner, takes no part in the business. So long as the principle stands as a part of the law, and is admitted by the court, the hardship does not furnish a legal reason for rejecting the law. This is self-evident, and the hardship of the case must not be permitted to 97 §24. Antecedents. Pt. i, Ch. 2. mask the real position. The ratio decidendi was that self-incorporation under statutes is, by tradition, the grant of a charter by the State. The corporators are protected by the reminiscence of the deference shown to acts of Government in the days when the franchise was received by direct grant from Parliament or the Crown. But a corporation is not the delegate of a State, unless it exercises a public function. In all other cases the function is private and, like the business which the corporation transacts, needs no franchise. If the franchise can be attacked and taken away in a collateral proceeding, because the business is private and needs no franchise ; the immunity, for the same reason, could be disregarded in a collateral proceed- ing, because the business is private and needs no franchise. A franchise that may be had for the asking and for nothing is no privilege or protection. The grant by the executive is reduced to a form by self-incorpora- tion under statutes, and the form is a shadow, the substance disclosing the nature of the transaction. Moreover the grant is open for inspection ; the im- munity, it is seen, was the consideration for the per- formance of a public duty, and might be disregarded on account of the failure of consideration. The protection no longer arises from the deference due to the executive grant; it is established by cus- tom as an incident of incorporation. The immunity became a recognized limitation of liability by inveterate usage. The law which established the privilege for a 98 Pt. i,Ch. 2. Antecedents. §24. corporation exercising a public function, was inadver- tently extended to cover corporations transacting pri- vate business. When the courts were called upon to re-establish the distinction between a corporation and a joint stock company, they disregarded the incorpo- ration, in order to judge of the capacity by the function exerted in the business.® The charter is not a substi- tute for a capacity, nor a barrier to investigation. The transaction is examined apart from the charter ; which serves only if needed for a public function, or proved as a defence to a personal action. A point is made by Morawetz, to uphold his argument, that a de fa£to corporation, protects its members from liability as partners. It is this: If the corporators are charged as partners in a defado corporation, the members of a de iure corporation must also be charged upon the same principle for its ultra vires acts.'' The answer to his position divides itself into two parts. First, As to ultra vires contracts. There are none. A contract made by the agent of a corporation in excess of its authority delegated to him is not the contract of the corpo- ration, and does not create a corporate obligation.^ In order to charge the corporators as partners upon an ultra vires contract, they must all unite, and au- thorize it to be made; otherwise only the persons who do or authorize the act are liable.^ Second, hs, to torts. Between the tort-feasor and his innocent asso- ciates, they are always ultra vires. The partner, or corporator, who commits a tort is liable individually, like any other tort-feasor, for his act, although when §24. Antecedents. Pt. i, Ch. 2. he is acting in the course of the joint business, his tort charges the firm, or corporation. Nevertheless, the ultimate liability is that of the wrong-doer, who must reimburse his co-partners, or the corporation. Of course it was never intended by the charter to au- thorize the corporation to commit such torts, but in charging the company the liability cannot be said to be incurred in excess of the franchise. In fact, the endeavor to trace the liability of a corporation to an authority from the State to perform the acts by which the liability is entailed is misleading. The real purpose of a charter is not to grant powers, but to secure ex- emption. The so-called powers in the charter are nothing but a description of the scope of the business for which the members have obtained the exemption. They are liable as a corporation for every act done in the course of that business, not because they are authorized by the State to do the act, but because the act is an incident of the business which they them- selves undertake. When the tort is not incident to the business defined by the charter, it stands upon the same footing as an ultra vires contract. No one is liable but the tort-feasor and his accomplices, and they are charged to the full extent- of their individual capacity. No foundation, it thus appears, exists in law, which is the embodiment of principle, for the analogy instituted between a de jadto corporation, which charges the members, because they have no right to transact business, except as partners, and a de iure corporation, which has the right to transact business, and is liable for the tort of a member, Pt. I, Ch. 2. Antecedents. §24 because it is committed in the course of the corporate business. The abuse by the agent of his authority charges the principal, because the authority exists. The act of a person who has no authority charges him because he is a principal.'" The effect upon a charter granted ' by the State of Pennsylvania prior to the present Constitution, of an acceptance by the corporation of subsequent legisla- tion in its favor, might be to reduce it to the status of corporations formed under the general statutes, which regulate self-incorporation. This would do away with the Dartmouth College case in Pennsylva- nia, and bring corporations, like other persons, under the sovereign control of the Commonwealth." I. Exemption from general liability only by proof of corporate immunity- Partner's liability severed on firm contract. A sued B for goods furnished to lumber cornpany. A refused to supply company except on B's credit, and surrendered D's acceptances for company's notes endorsed by B. A entered charges against company, which acted by president and secretary. B spoke of company being composed of himself, son, and another, without setting up a corporation. — Judgment for A. If sale on B's credit, liability original ; if not, without proof of immunity B liable as partner. Clark v. Jones, 8 Ala. 127 s. c. 6, So. 362 (1889). Notice making notes payable out of joint assets according to articles don't exempt members of association from individual liability. Bank unincorporated issued currency notes " payable out of their joint funds according to their articles of association." A holder sued stockholders.— Recovered. Only contract could exempt them, and no- tice referred to copartners application of assets to payment of joint debts. Gibson, C. J. " Private associations attempting to arrogate to " themselves the attributes of a corporation are entitled to no in- " dulgence. An exemption from individual liability is the most sub- " stantial benefit derived from a charter, the rest are merely matters " of convenience." Hess v. Werts, 4 S. & R., 356 (1818). Partner's liability not limited to joint fund, unless by express contract. §24. Antecedents. Pt. i, Ch. 2. Savings' Society transacted business from 1837 to 1857, and issued cer- tificates for deposit. Constitution exempted members from individual liability. An original member A withdrew, but made deposits. So- ciety failed, and A sued members. — Recovered. Partnership. No exemption on certificate. Beaver v. McGrath, 50 Pa. 479 (1865). Joint stock company partnership and certificate creates membersbip. Joint stocli bank : If member sold out, he surrendered certificate ; com- pany cancelled it and issued new one to purchaser, or if company bought, certificate endorsed and surrendered. Depositor sued stock- holder at bank's failure. Defence : Non-joinder of former members.— Overruled. Continuing partners took assets and assumed debts of bank. Question of former partner's liability to depositor, who knew of his membership at time of deposit, not raised. Wadsworth v. Duncan, 45 N. E. 132, 111. (i8g6). 2. If partners transact business in corporation form, tbey are bound by act of directors within scope of business, although irregularly executed, unless objected to at the time. A stage line was organized to go from Cincin- nati to Sandusky, and stock issued to subscribers, who held part until it could be placed. They elected directors, who bought and consoli- dated with a line from Cincinnati to Columbus, abandoning the northern half of the route. This was done at an irregular meeting, but with a knowledge of the stockholders, and without any protest by them. The company became embarrassed. Creditors' bill for account and contribution. — Decree. Stockholders partners, and liable for con- tribution. Purchase of mail route, and consolidation with it, within scope of business, and irregular transfer waived by stockholders' acquiesence. Holders of stock charged as if bona fide subscriber. Rianhard v. Hovey, 13 Ohio 300 (1844). 3. Continuing to act as a corporation after the charter has expired, does not charge the stoclcholders as partners. Neither B and C, stockholders, nor any one connected with the corporation, knew that the charter had expired. A dividend was declared subsequently, and received by B and C. D, the secretary, gave a corporation note, after the expiration, to A, who sued B and C as partners.— Not liable. Joint owners are not partners. B and C not even joint owners, but cestuy que trust, entitled only to share in surplus after corporation debts are paid. Part- nership arises from intention, or holding out, but not " by operation of law." Dividend was not received as the profits of a partnership, but of a corporation. Central City Savings Bank v. Walker, 66 N. Y. 425 (1877). Assuming a franchise creates a de facto corporation, which exists until decree of ouster. In 1874, city, B, sold lots to C, taking his mortgage Pt. I, Ch. 2. Antecedents. §24. for unpaid purchase-money. C conveyed to association A, which, acting as a corporation, though illegally organized under General Statutes, divided lot, and sold parcels to co-defendants. B, in 1879, recorded mortgage. In 1880, Attorney General obtained decree that A never had any corporate existence. B brought suit on his mortgage and vendor's lien, and, relying on quo warranto, obtained judgment, A's evidence of attempted incorporation being excluded. A appealed. — Judgment reversed. Title and conveyances of de facto corporation valid until decree of ouster made. Not a question of estoppel, but of public policy. Society Perun v. Cleveland, 43 O. St. 481 (1885). 4. Self-incorporation under general statutes valid only if statutory requisi- tions are fulfilled. B et al., partners, who had erected mills and carried on manufacturing business, organized under the general mining law, and five of them certified that they had each subscribed 2000 shares of $50 each, for the capital of $500,000, and that $351, 525 had been actually paid in. In fact, the only capital was the firm stock, and the actual payment was the money previously expended during the partnership. Shares of stock were issued to the partners in the original firm, who then transacted business as a corporation. 495 shares of the $500,000 were never issued or paid for. A sold B et al. cotton, and sued them as partners. — Recovered. Incqrporation unlawfully effected, no protection against creditors. Paterson v. Arnold, 45 Pa., 410 (1863). 5. Cochran v. Arnold, 58 Pa. 399 (1868). 6. Franchise does not protect premises taken for private business from re- taking by eminent domain. Statutes incorporated market companies, and they erected building which superceded public street markets of city. Railroad company took possession of premises for a terminal. Defence: Railroad could not take franchise by eminent domain. — Condemned. No franchise, for no public function ; but only private business. IWarket Co. v. Railroad Co., 142 Pa. 580 ; s. c. 21 A. 902, 989 (1891). 7. Private Corporations, by VICTOR JWORAWETZ, 2d ed., 1886, s. 748, ad finem. 8. Ultra vires contract not binding. Railroad A, without authority by its charter, leased railroad B for 99 years, and operated the road. A et al., who guaranteed performance of the terms, brought bill to en- force contract.— Dismissed. Ultra vires. Pa. R. R. v. St. Louis, Alton & Terre-Haute R. R., 118 U. S. 290 (1886). Torts of municipal officers charge city which they represent. Municipal corporation A sued to recover $12,000 exacted by B, internal revenue collector, as special taxes on spirits distilled by A, but not deposited in 103 §24. Antecedents. Pt. i,Ch. 2. U. S. bonded warehouse, as required by law, and paid under protest. A demurred to plaint, because the distilling was done by officers who exceeded their authority.— Judgment for B. Corporation liable for torts of officers competent to exert its powers. Salt Lake City v. Hollister, ii8 U. S. 256 (1886). 9. Ratification by a partner of acts beyond tiie scope of the partnership not binding, unless all the partners ratify them. B and 22 others organized company C, which was not incorporated, to construct, equip and operate a railway in connection with through line, D. The trustees of C bought of A all the stock of a line running parallel with D for a short distance, making D the principal debtor, and the members of C sureties for the price. B, in his letter of approval, stated that "the purchase was to be paid for by the duly authorized notes of C." Thirteen out of 23 members of C ratified the purchase. A claimed payment out of B's estate. — Disallowed. The purchase was ultra vires, and did not bind the members of C, unless they adopted it. B's approval was qualified, and not binding without a ratification of all the members. Roberts' Appeal, 92 Pa. 407, (1880). 10. MORAWETZ, ?748 and §699, who has collected a mass of cases, dis- cusses the contrariety of opinion whi(;h prevails upon the subject, in consequence of the neglect to revert for the solution of the problem to the first principles of the Common law. II. A corporation's acceptance of legislation may be made a condition for its renunciation of chartered privileges. A, under Act 16 May, 1857, ex- tended its track, and thereby subjected itself to Act 3 iVlay, 1855. A also accepted Act 15 April, 1868, and subjected itself to Constitutional Amendment of 1857, Art. i, s. 26, P. L. 811. These provisions made the renunciation by a corporation of its exemption from State control the condition of its acceptance of subsequent legislation in its favor. B, under Art. XVI, s. 8, in Constitution of 1874, recovered damages for property not taken by A, but injured by the construction of its ele- vated track. A appealed. — Judgment affirmed. A surrendered its corporate exemption, and legislature resumed its discretion to impose additional liability. Pa. R. R. v. Duncan, iii Pa. 352 (1886). 104 Pt. i,Ch. 2. Antecedents. §25. §25. A contribution gives the property to the business for the duration of the partnership, in other words, gives the use of property ; but trade, which is buying and selling, deals with the ownership, and, necessarily, vests the title in the firm. What is meant by the contribution of a partner to the stock of a firm ? Does the partner contribute the use and enjoyment of a fund, or of merchandise, for the duration of the partnership, and retain the owner- ship of the stock contributed by him, or does he con- vey to the firm the ownership of the property? The title would, unless some reason existed for shifting it, remain vested in the partner, and nothing but the use of the property would be contributed to the firm. The use is sufficient to answer the purposes of the business. This is apparent in real estate, which is not an article of trade. If a partner owns the build- ing occupied by a firm, and used as the stand for transacting its business, he would contribute the use and occupation to the joint stock, but he would retain the title as his separate estate. The firm could neither sell nor encumber the premises. The title could be aliened or charged only by the contributing partner, as he remains the owner.* But merchandise is the staple of trade, and is governed by its laws. Third persons may object to a partner's retaining the title to property contributed by him. The firm must act as owner, and will be held as owner during the partner- ship. 105 §25- Antecedents. Pt. i, Ch. 2. The answer to the question, it thus appears, depends upon the nature and effect of trade. If it did not affect the character of property, did not make it fungible or consume it in the use, there would be no necessity for the partner's transfer of his title to the firm. If the real estate is a mere incident, not the substance of its trans- actions, the use is sufficient to enable the firm to trans- act its business, and persons dealing with the firm could not be misled by the acts of the firm, which does not assume to own the property, but merely to possess it. But partnership is for trade, and the stock is bought and sold by the firm. The joinder in trade is to buy and sell. The business requires that the firm should have the ownership of its stock. The use and enjoy- ment would be of no service, because the property is not for use, but for sale. The title, therefore, must be vested in the firm, in order to enable it to transact its business.^ Each partner may exert the powers of the firm, and he has the right to sell, not only his own contribution, but also the contribution of his co-part- ner. This is a right inherent in a partner, and if it is taken away from him he is reduced from the rank of a co-principal in the business to the position of an agent. It was held at one period in Pennsylvania that the capital stock might remain the property of the contri- buting partner, and that a levy upon it by his separate creditor would take precedence of an execution issued by a firm creditor. But the decision was made upon the theory of working out a firm creditor's right through the equity of the partner, and not upon a 106 PT. I, CH. 2. ANTECEDENTS. §25. consideration of the necessity which exists that a commercial firm must have the title to its stock.^ The facts of the case did not call for a decision in this aspect, and the precedent may be explained by refer- ing it to the class of non-commercial partnerships. The business undertaken was a livery-stable. The lease and fixtures, as well as the equipment of horses and vehicles, might be owned by the partner who contributed the means to procure them . The co-part- ner would have no joint ownership of the property, because there was no necessityin the business for him to deal with the title. He could fulfil the purposes of the partnership by managing the business, which did not involve a sale of the property, but merely its use. The case, under any circumstances, could not stand as a precedent for commercial partnerships. The con- tribution of a partner remains his separare property at the farthest only until it is converted by a sale. The sale is a joint act, and the proceeds belong to the firm. The purchase of goods to replace the merchandise sold is made upon the joint credit of the partners, and the title vests in them. The vendor of the original stock, bought by a partner for his contribution, has no lien upon it in the hands of the firm.* He cannot claim the proceeds of a sale or follow the stock into a dif- ferent corpus. The partner who contributes property, for which he has not yet paid, to the stock of a firm, does not commit a breach of trust, but performs a le- gitimate operation of business. The vendor has no standing as a cestuy que trust, to treat him as a delin- quent trustee. On the contrary, they stand as buyer 107 §25. Antecedents. Pt. i, Ch. 2. and seller at arms length. The sale and re-purchase of stock are the very elements of trade, and must be assumed as a fact in the business, if not proved. The stock, therefore, will, in the absence of evidence to the contrary, be presumed to belong to the firm.^ As a conversion of the stock is the purpose of a commercial partnership, the law, when it requires a contribution, vests the title in the firm, and excludes a separate ex- ecution. If the title is in dispute only between the partners, and the controversy does not affect strangers, the arti- cles may make the contribution separate property. A partner may stipulate to retain title. He does not then contribute the property to the firm, but keeps both the title and possession himself.*' 1. Partaer's contribution of building, a usufruct during the partnership. B & C, partners in publishing establishment. B owned the building, and firm used it, without lease, for its business. A issued execution against firm. Pending final process, B sold his interest to D, who joined C in a new firm, which assumed the debts of old firm, but before sheriff's sale C & D assigned ail firm assets to A, who brought bill against B for use of building. — Dismissed. Usufruct of building contributed only for duration partnership, and ceased upon its termina- tion by B's retirement. Rapier v. Gulf City Paper Co., 64 Ala. 330 (1877). 2. Title to contribution passes to firm. A insured his stock in company B. Policy avoided if A's interest in the property was any other than the entire unconditional and sole ownership, or if any transfer or change was made of his title or possession. A took C, his clerk, into partner- ship, giving him a share of the profits, and against his capital stock of $157,000 stipulated that C should contribute $io,cco the first year, and let 1-3 of his salary remain until $io,cco more accumulated. C pro- hibited from using commercial paper, or drawing checks, and funds deposited in A's name. The stock was destroyed by fire before C had contributed anything. A sued B for insurance. The nature of the con- tribution, as a temporary disposition over the fund during the limited 108 Pt. I, Ch. 2. Antecedents. §25. period of a partnership, was relied on to disprove a transfer of property by the owner to the firm, which he formed with his clerk. — Judgment for B. In form, and in external fact, the title did pass, said the Court, even if only for the occasion, and subject to reverting upon a dissolu- tion : In substance between the parties, said the dissenting Judge, without reference to outsiders, the title did not pass. Mallery v. Atlantic & Marine Ins. Co., 51 Conn. 222 (1883). 3. Title to firm stock retained by contributing partner. B & C, partners in keeping a livery stable. B furnished capital, and retained exclusive title to the stock until C should pay a contribution, which he never paid. A issued separate execution against B, and, subsequently, D a joint execution against both. — A entitled to proceeds of sale. York Co. Bank's Appeal, 32 Pa. 446, (1859). 4. Partners make contribution of one, firm stock by contracts of sale and re° purchase. Seizure on separate execution enures to firm executions. B bought goods of A on credit, and contributed them to firm. C con- tributed labor; profit and loss were equally divided. In course of business, the stock was sold out and replaced. A sued B for price, and levied on the stock. Firm creditors issued executions, but sheriff made no second levy. He sold the goods, and paid proceeds to firm creditors. A sued sheriff and firm creditors for proceeds. — A had no vendor's lien. B & C could not deny firm title", because they made the contracts of sale and re-purchase. Sheriff's seizing stock on separate execution enured to firm executions. Ryder v. Gilbert, 16 Hun 163, N. Y. (1878). ;. Stock, though contributed wholly by a partner, through the cO'partner's default in paying his quota of the price, if replaced by joint purchases, becomes firm property, and a joint execution takes it away from a prior separate execution. B & C, holding themselves out as partners, bought and sold stock on firm account. C failed to contribute any capital, and received, as his interest, a commission on sales. A issued execution against B, and firm creditors followed with joint executions. — In default of evidence that any of the original stock remained, which was B's property, as C failed to pay his half, the current stock was presumed to belong to the firm, and to have been bought on the credit of B & C. A's separate execution was accordingly postponed to the joint execu- tions, which took the proceeds. Walter's Appeal, i Chester Co. Reps. 278, Pa. (1881). 6. Partnership inter se without joint stock. Advance, with guaranty of profits, not a loan, but a partnership. By agreement, A " advanced money to B," for purchase of cattle, which A was to own till sale. B did the work. Profits divided equally, and B guaranteed A profits equal to 20 109 §26. ANTECEDENTS. PT. I, CH. 2. per cent, on his advance. B attempted to hold the cattle, claiming that the transaction was a cover for a usurious loan. A brought account, averring a partnership, and claiming the whole property. — Partnership without any joint stock. A entitled to 1-2 profits on sale, and to all the property on hand. Robins v. Laswell, 27 111. 365 (1862). §26. Special partnership is not an exception, but is the normal type of the relation. The type of partnership at the Civil law made the co-operation of a proprietor in the management of the business the test of his unlimited liability as a part- ner. The special partnership embodied this principle. The introduction of this kind of partnership into the Common law ran counter to the instincts of the Com- mon lawyers, who made the property element, or the interest of a proprietor, the sole test of partnership. A dormant partner, the commercial type of the undis- closed principal, represented the Common law partner, pure and simple. Special partnership impeached the general principle of the Common law, and released the special partner from the unlimited liability which the Common law imposes upon every proprietor. The doctrine of the undisclosed principal was felt to be the obstacle in the way of any limitation of lia- bility at the Common law, and the attack was directed against that principle.^ But the doctrine was found to be too firmly imbedded in the law to be uprooted. Pt. I, Ch. 2. Antecedents. §26. Upon the failure of the assault, limited liability was introduced by legislation.^ The alteration introduced by statute was not revolutionary, but left the principle of unlimited liability in force, except where a full disclosure of the limitation of liability was announced by the record, and brought home to the customers.^ The expediency of giving a trader the faculty to limit his liability under the precaution of notice brought home to his customers, was obvious. The limitation of liability was proclaimed as the new gospel of trade.* The persecution of the special partner by the courts, in spite of this prevailing tendency to in- troduce a limitation of liability, can only be explained by the professional belief that the recognition of a special partner would abrogate the Common law principle of unlimited liability. The statute, however, did establish a, special partnership, and that was the end of it.^ The refusal to recognize this variety of partnership, except under restrictions, which render its existence almost impossible, has led to the wholesale abrogation of the Common law principle of unlimited liability. As usual, the last state is worse than the first. 1. Undisclosed principal liable on agent's contract. B did business as C's agent, but in tiis own name. B accepted bill in A's favor, contrary to C's commands. A sued C. Defence: C unknown to A at time of acceptance. — Judgment for A. Bill given in course of business bound C as undisclosed principal. Edmunds v. Bushnell, L. R. i Q. B. g6 (1865). 2. Act March 21, 1836, P. L. 243, Pa., and Supplements. 3. An anonymous writer in the American Law Review, takes the ground that notice to creditors relieved a participant in the profits, who had stipulated against liability, and that this principle would relieve a \2-j. ANTECEDENTS. PT. I, CH. 2. known special partner who had not complied with the statutory re- quirements. Article on Liability as a Partner, 2 Am. L. Rev. 7, 8 and 202 : 1877. 4. Lord BRAMWELL has recently recounted the history, but his address is reported only in the daily press. 5. The language of SMITH, J., Eastman v. Clark, infra §44, n. i, gives the true rationale of special partnerships : " If it be argued that it is against the policy of the law to allow a " man a chance to share in the receipts of a business without also " sharing all its liabilities, the answer is that the law permits such " agreements as the present to have full force and effect, when the " stipulations are known to those dealing with the parties. * * * * " The intrinsic justice of this legal principle seems to be recognized " by the legislative enactments relating to limited partnerships ' which "provide for the public record of the partnership limitations as a " method of making them known to third persons.' " §27. A partnership in the profits without a proprietorship of the stock is a misnomer in a commercial partnership. The sale by agents, or brokers, who receive a share of the profits, would not deserve mention were they not said to be partners in the profits, but not in the stock of a firm. They are, in fact, nothing but agents, and the designation of partners is stripped of all mean- ing by limiting the partnership to the profits, which are only the result of a business. It is the sharing made by proprietors which indicates that they are the principals, or partners, in the business.' For this reason a partner in the profits for soliciting orders Pt. I, Ch. 2. Antecedents. §27. could not bind the partners who owned the stock by the release of a firm debtor, who paid him.^ As he was but an agent, selling was the limit of his power, and receiving payment exceeded his capacity. Nor could a partner in the profits, who bought for the partners, draw upon their bank deposit.^ He was only a broker, who had no title to the goods bought, nor to the proceeds, but merely to the profits. A partner in the profits abroad disposed of a cargo which had been pledged, but replaced it by merchandise which he bought, and remitted the bill of lading, which the partner, in England, handed over for the substituted cargo to the creditor. But the debtor who failed between the sale and re-purchase, could not pass the title, as it went, upon his bankruptcy, to the as- signee for creditors.* Had the foreign agent been a partner, his bona fide disposition would have been a valid transfer of the title.^ I. If not an agent, but a partner, he shares property as well as profits. Partners in profits of sales are owners of land. E gave ABC and D power of attorney to bring her land into market ; they meeting expenses and she executing deeds. After $50,000 had been paid her, surplus should be equally divided among all. A and B sued E for selling land after receiving $50,000, and joined C and D, who procured deeds from E.— Recovered. Surplus land firm property, and sales set aside as fraudulent. Winstanley v. Gleyre, 146 111. 27. s. c. 34 N. E. 628 (1893). 2. Sharing profits of sale gives no title, or power over stock. A & B, cloth- iers, and also jobbers, employed C, as traveling salesman, to solicit, by sample, orders for piece goods. He received a compensation equal to 1-2 profits. A & B sued D for price of goods. Defence: Release by C. — Recovery. C a clerk. No inference admitted from extent of his agency of power to release. Though a partner in the profits, not a co- owner of stock with A & B, who alone were liable for its price. Smith V. Percy, 5 Dutch. 74, N. J. (i86o). 113 §2/. Antecedents. Pt. i, Ch. 2. 3, Share in profits gives sharer no title to proceeds of goods. By prior agreement, B, a broker, who bought for A, took 1-4 profits and 1-8 losses of adventures, in lieu of his commission. A continued to employ B as agent, but, by a new agreement, gave him 1-3 profits and made no provisions for losses. B drew, as a partner, upon the proceeds deposited by A with C, his bankers. A became bankrupt, and his assignees sued C for amount of A's deposit. — Recovered, as B had no title to the goods, or to the proceeds which represented them, but was merely entitled to a share of the profits. Smith v. Watson, 2 B. & C. 401 (1824). NOTE. — C would be a third person, and entitled to deal with B as a partner. This would be a defence, if B had not indemnified C, and made the controversy inter se. 4. A share in profits and losses of adventure gives sbare-talcer no title to stoclt. A pledged bill of lading to B for a cargo bought for him by C, his foreign agent, who shared 1-2 the profits and losses of the adven- ture. C sold part of the cargo abroad, without A or B's knowledge. A became bankrupt. Then C replaced the goods sold by others, and sent a bill of lading to A, which he gave to B. A's assignees in bank- ruptcy brought trover for the substituted goods. — Recovered, because B could get no title to the goods from C. He was not a partner as to the stock, which belonged to A, but only in the adventure. Meyer v. Sharpe, ; Taunt. 74 (1813). ;. Partner can pledge firm stock after co-partner's bankruptcy, if ignorant of the act. B, in England, and C, in Maryland, partners. D had advanced money on acceptances of B, who secretly left England and exchanged residences with C. B secured D by consignments of tobacco. Subsequently C committed an act of bankruptcy in Eng- land, and failed. A joint commission issued against both, on account of B's leaving England. Assignee brought trover against D.— Judg- ment for D, because a bona fide purchaser from B. Creditors had waived B's absconding as act of bankruptcy. Fox v. Hanbury, Cowp. 445 (1776). §28. The enhancement in value of a contribution during the partnership enures to the firm, which is also charge^ able with any depreciation. The accessory follows the principal. The contrib- 114 Pt. i,Ch. 2. Antecedents. §28. uting partner who desires to withdraw the property contributed by him is entitled to what he put into the firm, but not to any increment added to the contribu- tion during the partnership.' The accretions are attri- buted to the firm, as owners.^ Where the partner retains title and contributes only the use of his property, the value of the increase will be estimated and credited to the firm if the property cannot be severed from the original contribution.^ The arrangement of the partners for a withdrawal of the contributed-stock at its original valuation, is equiva- lent to a retention of title by the contributing partner, and if it afterwards becomes inequitable, the courts will not give it effect, but will revert to the normal method of adjustment.* 1. The language of the German and of the Austrian Code is identical : " S. 143. Wenn ein Gesellschafter Sachen in die Gesellschaft einge- " bracht hat, welche Eigenthum derselben geworden sind, so fallen " dieselben bei der Auseinandersetzung nicht an ihn zurijcli, sondern er "erhalt den Werth aus dem Gesellschaftsvermogen erstattet, fiir "welchen sie gemass Uebereinkunft iibernommen wurden. Fehlt "es an dieser Werthbestimraung, so geschiet die Erstattung " nach dem Werthe, welchen die Sachen zur Zeit der Einbringung " hatten." Die Geltenden Handelsgesetze des Erdballs, von Dr. Oscar Borchardt, sub vocibus, Berlin, 1886. 2. Tbe increase In value of contribation belongs to firm. A contributed, in 1861, mill and machinery at £24,000; B, £2,500 cash; C nothing. At first, A took 1-2 and B and C each 1-4, but afterwards each took 1-3 until C's death, when A succeeded to his share. At the end of that year A and B each took 1-2. Capital and accumulated profits carried interest. The mill was enlarged, lands bought, and other buildings erected during partnership, with firm funds. The entries put mill and plant at original price, showing increase by improvements and repairs, and decrease by annual depreciation. No revaluation during partner- ship. A & B sold out, in 1872, receiving £57,052 for mill and fixed plant, and £48,744 12s. for movable plant and good will. A claimed 115 §28. Antecedents. Pt. i, Ch. 2. £57,052 as his capital. — Allowed only his original price. Like the con- tribution, its enhancement in value belonged to the firm, which neither rented the mill and plant from A, nor repaired them for him. Robinson V. Ashton, 20 Eq. 25 (1873). 3. Improvements on partner's land, made with firm funds, belong to firm. A & Co. liuilt part of its brewery establishment upon A's land. A's executors brought bill against surviving partners. — Firm charged with original value of land appropriated, but credited with enhanced value, which is divisible as profits. Frelinghuysen v. Ballantine, 38 N. J. Eq. 266 (1864). A & B were carpenters in partnership. B built a house, with firm assets, on his own lot. Firm dissolved. B sold the house and lot to C, and left the jurisdiction. A paid firm debts beyond his quota, and claimed title to lot against C, who still owed $1000 on account of the purchase- money. C is a bona fide purchaser for value, without notice of the firm's claim to improvements upon it, except to the if 1000 pur- chase-money still due. Devoney v. Mahoney, 8 C. E. Gr. 247, N. J- {i872\ 4. Option to withdraw foundry superceded by rebuilding with contributing partner's co-operation. By articles, A contributed a foundry at ap- praisement, reserving option to withdraw it on dissolution at appraised value. The foundry was burnt down during the partnership, and was rebuilt with firm funds, A co-operating. In the settlement, he insisted upon a return of the land, and at its original valuation, in order to gain the rise in value. — Court refused him the land, and gave it to the firm at the original valuation. Clark's Appeal, 72 Pa. 142 (1872). §29. If the question of title to the contribution arises between the partners, and without reference to third persons, the distinction between a commercial business and other kinds of business, is simply a matter of form. Fungible goods become the property of a firm, in 116 PT. I, CH. 2. ANTECEDENTS. §2Q. Spite of the partners' intention, on account of the nature and effect of trade. The use which is made of the thing carries with it the ownership^ The iden- tical thing cannot be restored, because it is lost by transacting the business. A different thing, although the same in kind, must be returned in its place. But apart from the holding out involved in the firm's deal- ing with the title as its own, the distinction between fungible and non-fungible property does not affect the partners. If they intend to contribute nothing but the use to the firm, that is all the firm will get. The transfer of title will be merely an incident of the- business; it will not control the partners in dealing with each other, or override their intention. The partners may shuffle the title as they please. I. The German and Austrian Codes agree in making contributions firm property : "S. gi. Wenn Geld oder andere verbrauchbare oder vertretbare " Sachen, oder wenn unverbrauchbare oder unvertretbare Sachen nach " einer Schatzung, die nicht bios zum Zweck der Gewinnvertheilung " geschiet, in die Gesellschaft eingebracht werden, so werden diese "Gegenstande Eigenthum der Gesellschaft." And the Austrian Code adds: "Im Zweifel wird angenommen, dass die in das Inventar der " Gesellschaft mit der Unterschrift sammtlicher Gesellschafter einge- " tragenen bis dahin einera Gesellschafter gehorigen, beweglichen oder " unbeweglichen Sachen Eigenthum der Gesellschaft geworden " sind." Borchardt, sub vocibus. §30. Merchandise being the subject=matter of trade, part= nership, as an organ of trade, converts everything in which the firm deals into merchandise. When the title to property contributed by a partner 117 §30. Antecedents. Pt. i, Ch. 2. is not required by tlie firm for tlie transaction of its business, the use of tfie property constitutes the con- tribution, and the title remains in the contributing partner (§2^). But the fact that the firm has the use, indicates that the property is connected . with the business, and a slight indication of intention is sufficient to transfer the property to the firm. Thus an agent was sent to Cuba to work mines, and if he effected a sale he was given half the price. He undertook to work the mines and share the profits with the principal accord- ing to their contributions. He made no property con- tribution, unless the agreement for a sale was looked upon as vesting title to the mines in the firm. He would, in this aspect, contribute one-half the capital stock, as he would get half the price of the mines if they were sold. This was the interpretation put upon the contract.^ I. Contributions refunded before division of assets. A & B agreed to con- tribute equal amounts to build and operate flour-mill. On dissolution A's balance of account, $3,339.17; C's $1,217.17: A's excess, $2122. which deducted from assets, $3100. left $978, for division. r— Decree in account: $489 each, overruling decree which did not deduct excess of advance before distribution. Chamberlain v. Sawyers, 32 S. W. 47; Ky. (1895). Law does not imply that contribution is outright. Upon evidence of contribution by B and services by C, court charged that half the assets should go to the plaintiff, C's widow. — Error: "The jury should at " least be authorized to find the amount so contributed was to be first " returned, and only the remainder divided." Washington v. Wash- ington, 31 S.W. 88, Tex. (1895). Only use may be contributed. B stipulated in forming real estate part- nership with A for all personal property, books, papers, maps, plans and unexecuted orders on dissolution. In account by A, master esti- mated items at $700, which he charged B.— Error, Items reverted to B. Wilson V. Block, 164 Pa. 555, s. c. 30 A, 488, (1894). 118 PT. I, CH. 2. ANTECEDENTS. §31. 2, Contract for yi the price of mines not enforced if parties subsequently became partners in working them, and shared profits according to contribu- tions, the right to yi, the price being the piaintiff's only contribution ; but remedy, account. A was employed by B to go to Cuba, look after B's mines, and ship the asphaltum. B furnished the money, and agreed to give A 1-2 the profits on a sale of the mines, products and patents. They shared the profits of working the mines, as partners, in proportion to their contributions. The business did not succeed, and B sold the mines. A sued him for half the price. Defence: A's remedy, ac- count. — Judgment for B. By making his share In the partnership depend upon his contribution, A must have put into the firm the moiety which he owned in the mines by virtue of his right to half the price of them on a sale, and could not afterwards sue B on the contract. Seelye V. Taylor, 32 La. An. 1115 (1880). Contribution outright, if partners so agree. A & B contributed $3,650.50, their services and leasehold, also furnishing C, who contributed $8,000, bricks for his building operations at lowest price. Decree on account to A & B two thirds of assets and C one third. — Affirmed. Usual order: I. payment of debts to firm creditors. 2. each partner his advances. 3. his contributions. 4. his share of profits, changed by partners' contract. Groth v, Kerstrlng, 47 P. 393 Colo. (1896). §31. Conflicting theories prevail of the contribution, and un- settle the property rights of the partners where they have not fixed its character by an express provision. In the first place, the contribution may become the property of the firm out and out, so that upon a dis- solution the contribution will be divided, like other assets, in proportion to the shares of the respective partners. This was the English theory. The accept- ance by a contributing partner of the services of another 119 §31. Antecedents. Pt. i, Ch. 2. as a substitute for a contribution, invested the service- rendering partner with the title corresponding to the share which his services yielded. This made him a co-proprietor. In a partnership at will, if one partner contributes ^10,000, and the other his services, and they share the profits and losses equally, the partner who made the contribution might die the next day, and the sur- vivor might legally appropriate ^5^,000 of the capital stock, although the whole amount, ^10,000, was con- tributed by the deceased partner. Thus, one partner contributed a music-hall and tavern, the other contri- buted no property, but he was entitled to 1-8 of the profits. Upon a dissolution 1-8 of the music-hall and tavern belonged to him.' If this theory be true, and the ^10,000 in the case put were lost in the business, the non-contributing partner, who has lost nothing but the expectation of profit, could not be held to make up the loss to the partner contributing the capital. Res peril domino. The mistake was to vest a permanent title in the service-rendering partner, endowing him with the contributor's property at dissolution. The owner contributed his property and renounced his title only for the duration of the partnership. At dissolution the temporary title of the non-contributing partner ceased, and the owner's original title reverted. "Sic " etiam inielligi debet, ut qui sodetatem etiam univer- "salem et inperpetuam contrahit, rem suam communicet "socio, sed quamdiu tantum durai socieias ; finita enim 120 Pt. i,Ch. 2. Antecedents. §31. "societate, recurril ipso iure dominium totum ad eum "cuius antea totum fuerat."^ Now the law of England has gone to the opposite extreme and makes the non-contributing partner share the loss of his co-partner, a result consistent only with the theory which makes a partner creditor of the firm for his contribution. The English decisions have abandoned the view that the title to the contribution is vested in the firm, and have taken up with the theory that a contribution is an advance.^ 1. Cootributioa by partner vests title in co-partner to extent of his share in profits. 2S and 29 Vict. c. 86 does not create a limited partnership. B, for £250 paid him by A, undertook to convey him in partnership 1-8 profits of a music hall and tavern, under 28 and 29 Vict. c. 86, which B called the Limited Partnership Act. No duration fixed for loan or partnership. — Partnership at will, and defendant's denial in his answer terminated relation. — A entitled to i-8 profits during continuance, and to 1-8 of hall and tavern on sale. He intended to be a partner, with liability limited to his loan. Syers v. Syers, i App. Cas. 174 (1876). 2. Car. Zanchus, Tract, de Societate, Pars, iv., cap. x., n. 24. After contributions re-imbursed, assets shared as profits. A & B, who had been partners, with shares in proportion of 3 to 1, took in C, and readjusted the interests thus: A 40 per cent., B 35, and C 2;. A con- tributed most of the capital, C a little, and B less. The credit balances at expiration of partnership were : A$2i4,8i5,B 58,422, and C $60,762, which were made up by crediting the estimated profits each year and adding interest, with an allowance to A of $2,500 a year for rent. A asked for a division of assets according to the contributions. B and C according to capitals of partners at dissolution. — Contributions reim- bursed with interest, and surplus divided according to shares of the profits. Binney v. Mutrie, 12 App. Cas. 186 (1886). The English Partnership Act settles the controversy in Eng- land and includes the loss of contribution among the firm debts, which charge each partner according to his share of the profits. "Losses, including losses and deficiencies of capital, shall be §31. Antecedents. Pt. i,Ch. 2. " paid first out of profits, next out of capital, (i. e., for firm " creditors), and lastly, if necessary, (to reimburse contribu- " tion), by the partners individually in the proportion in which " they are entitled to share profits."* ». LIII-LIV Vict, chapter 39 ; 'go Statutes 307. The second theory which has obtained currency is that the contribution is a loan by the partner to his firm, in other words, to himself and co-partners, and is charged as a debt, to be repaid before any division of firm assets can be made. This theory obtains in Massachusetts. It is the Civil law mutuum revived. The contri- bution is merchandise, which is fungible, and can not be returned in specie. This is the distinctive characteristic of the mutuum. The partner's loss of title to his contribution, which is merged in the firm stock, although for temporary purposes, and his ina- bility to recover it in specie, led to confounding his position with that of a lender. The idea of a contri- bution is lost in that of an advance.^ Two partners contributed the capital, and two their services, each receiving 1-4 the profits. Upon a dis- solution the firm owed to each contributing partner the amount he had contributed.* The firm debt was, say ^100,000. Each partner was liable for one-fourth, or ^25',ooo. Each contributing partner, after deduct- ing ^2^,000 to pay his quota of the loss, is still enti- tled to recover $2<^,ooo, and each non-contributing partner must pay that sum to equalize the loss. If a partner is insolvent, the loss is distributed, as a debt, among the solvent partners. The quota of each part- 122 PT. I, CH. 2. ANTECEDENTS. §31 ner would be ^3 3, 333. 33^^, and the non-contributing partner would be liable to pay that amount for the in- demnity of his co-partners. A partner who is out of the jurisdiction is treated as if insolvent, because the process of the courts cannot reach him, and his quota of the loss must be divided among the partners amen- able to judicial process.^ The theory of debt would make the contribution carry interest, but the Massa- chusetts courts do not allow interest upon the contri- bution without a stipulation to that effect.® The theory of debt halts again where they decide that upon dis- solution a partner's title to his contribution revests in him.'' He has the right to seize the assets which remain in the firm, for his contribution, without first devesting the joint title by judicial proceedings. This is the prerogative of an owner, for no lender can touch the property of his debtor without judgment and exe- cution. 3. This is the French law : " Si les choses dont la jouissance seulement a ete mise dans la "societe sont des corps certains et determines, qui ne se consomment "pas par I'usage, elles sont aux risques de I'associe proprietaire. Si les "choses se consomment, si elles se deteriorent en les gardent, si elles " sont destinees a etre vendues, ou si elles ont ete mises dans la societe " sur une estimation portee par un inventaire, eiles sont aux risques de " la societe. Si la chose a ete estimee, I'associe ne peut repeter que le "montant de leur estimation." C. C. 1851. "Si ce sont des choses qui se consomment par I'usage meme qui en "est fait, comme le vin, I'huile, I'argent monnaye etc; car il est de " regie que la simple tradition des choses fongibles en transmet la pro- "prietememe; en pareil cas la societe en devient proprietaire et par "suite elle est debitrice envers I'associe qui a fait I'apportde choses de " meme nature et qualite, ou de leur valeur." Vav. s. 92. 4. Contribution a firm debt, and eacb partner iiabie for its repayment. A and B contributed the capital, C and D their services, to the firm. 123 §31. ANTECEDENTS. PT. I,CH. 2., Each partner to receive 1-4 the net profits, after deducting interest on the contributions. The firm dissolved, and A wound up the business, which resulted in a loss. D was insolvent. A demanded repayment of his capital, as a partnership debt. D's defence: His labor became capital; but no intention to insure either's contribution. — Recovered. Each solvent partner must contribute equally to repay the capital. Whitcomb v. Converse, ng Mass. 38 (1875). ; . Loss apportioned according to interests of partners within jurisdiction. A and others, some in Massachusetts, and some who afterwards removed from the State, formed a ferry company, as a partnership. The pro- ceeds, less expenses, went to the subscribers pro rata. A paid money for the firm, and sued the members in Massachusetts for contribution.— Recovered. Loss apportioned in proportion to interests, and members out of jurisdiction disregarded, like insolvents. Whitman v. Porter, 107 Mass. 522 (1871). 6. Assets go on account of, and in proportion to, tlie contributions, and eacli partner must make up tiie deficit in proportion to bis share of the profits. A, B & C, an infant, who agreed to share profits equally, dissolved, and made B liquidating partner. He might retain, out of the assets, his contribution, $4,874, without interest, and after paying the debts, repay A's contribution, $1,800, without interest, and apply the balance to C's contribution, $882. The assets were not sufficient to repay the contributions. A and B claimed that the contributions should be repaid with interest, that the assets should be shared in proportion to the contributions, and that each partner should make up one-third of the deficiency. C's defence: Infancy. That each partner should have 1-3 of the assets, and make up the deficit in proportion to .his contri- bution. — Assets divided in proportion to contributions, but no interest allowed on them. Each partner liable for 1-3 of deficiency. Moley v. Brine, 120 Mass. 324 (1876). 7. Partner entitled to repayment for his contribution before profits are com- puted. A agreed to furnish all the capital, and B his services, in carry- ing on a drug store, and to divide the profits equally after deducting interest and expenses, including a salary to B. A contributed $3,300. The firm dissolved, and A's executrix claimed to deduct $3,300 capital, and then take half the residue as profits. — Recovered, less 1-2 the loss, i.e., depreciation in value of the fixtures. The contribution becomes firm property, but reverts to the contributing partner upon dissolution. Livingston v. Blanchard, 130 Mass. 341 (1881). 124 Pt. I, Ch. 2. Antecedents. §32 §32. The theory that the contribution is a debt has been adopted in several States, besides Massachusetts. It is recognized in Georgia. The contributing part- ner^ upon a dissolution, agreed to pay all the debts of the firm. His contribution was construed to be a debt, and, as such, was embraced in his agreement.^ In Indiana. A partner, who furnished the capital to erect buildings and provide the machinery for manu- facturing in partnership, was entitled to collect from his co-partner a portion of the loss caused by fire, cor- responding to his share of the profits.* In Illinois. The destruction of buildings and ma- chinery was a loss apportioned equally among the partners, because they shared the profits on an equal footing.^ 1 . Partner's agreement, upon dissolution, to pay firm debts includes what the firm owes him for his contribution. A contributed skill and labor, and B contributed property, which would belong to the firm when paid for out of the net proceeds of the business. Upon dissolution, B agreed to pay the firm debts, and A made over his interest in certain assets, including B's contribution. Some proceeds were left undivided, and B held them as his own. A brought bill for his share of them. Bill dis- missed at the hearing, because it contained no averment that the pro- ceeds in question exceeded the net proceeds which were to be applied in payment for B's contribution. — Reversed. Dismissal admits facts set forth in the bill: That the individual assets belonged to the partners in equal proportions : That B agreed to pay all debts. This included the firm debt to B for his contribution. Tellyettv. IWarkham, 57 Ga. 11 (1876). 2. Share in profit and loss measures the distribution of the loss of capital. A and B furnished the capital and C did the work. A received 10 per cent, on his capital, and B and C salaries. Then profit and loss 125 §32. Antecedents. Pt. i,Ch. 2. divided equally. A partial loss of capital. — In account, C must bear 1-3 of tfie loss. Carlisle v. Fenbrook, 57 Ind. 529 (1877). 3. Agreement to divide losses include partial loss of capital. A contributed building and macliinery, at $g,6oo, and B and C, together, $2,500. Profit and loss divided equally during partnership. Buildings de- stroyed by fire. A charged B and C, each, with a third of the loss of capital. Defence: Only a loss in excess of capital to be equally divided. — Loss of capital divided equally. Taft v. Schwamb, 80 111. 28g (1875). In New York the theory has been fully discussed, and perhaps settled. A partner contributed ^2,000 for 3-4 of the profits. The co-partner contributed ^2,000 for 1-4 of the profits. The court accounted for the excess of profits as a compensation to the partner for his services. The conjecture was but a shrewd guess, while sharing the losses in proportion to the contribu- tions would effect the same result upon principle.' In another case, also decided by a lower court, the losses were distributed, in spite of Judge Hoffman's reason- ing in his dissent from the decision in Hasbrouck v. Childs, not in proportion to the contributions, but in proportion to the profits.^ The court of Appeals has recognized the debt theory without discussion.^ I. Majority : Profits will be apportioned as a return upon contribution and as a compensation for services. MINORITY: Losses of capital are borne in proportion to contribution without reference to shares in the profits. A contributed $2,000, and did all the work ; B contributed $2,000, and did no work. A took 3-4 and B 1-4 the profits. No men- tion of loss. Partial loss of capital. A claimed half the residue. B's defence: A should bear 3-4 the loss. — Recovered. Majority: 1-2 profits went to A, as compensation for services, the other 1-2 was divided between them as partners. iWinority: A not a clerk; he received extra profits as a partner. Equality a presumption of fact. In the absence of agreement, profit and loss divided according to contribution. In such case, if one contributes labor and the other capital, the jury alone can decide the value of the labor contribution. If money is contributed 126 Pt. I, Ch. 2. Antecedents. §32. against labor, the two form a joint fund, and tine loss of capital is counterbalanced by a proportionate loss of labor ; If only the use of money is contributed, res perit domino. The contributions and the shares of profit and loss may be in different proportions. Then, as profits are not divided until capital is deducted, so losses are not appor- tioned in the ratio of profits, except for a deficiency beyond capital ; otherwise the partner having the larger share of profits would guaran- tee his co-partner's capital pro tanto. Hasbrouck v. Childs, 3 Bosw. 105, N. Y. (1858). 2. Losses shared like profits in absence of agreement. A, B & C manu- factured tubs. A and B furnished factory, stock and funds, and C carried on the business. Card contained the names of all three The profits were shared equally. Loss of nearly all the stock. A and B brought account against C. — Decree. Presumption that losses shared like profits, unless rebutted. Munro v. Whitman, 8 Hun. 553, N. Y. (1876). 3. Agreement must be clear to rebut the inference of debt. A contributed merchandise, estimated at $15,000; B merchandise at $3,000. Profits and losses, including depreciation of stock and expenses, were shared equally. A charged B one-half of his capital lost in excess of B's capital. — Recovered. The clause did not distinctly provide for a division of the assets in proportion to the contributions and relegate the division of loss to the excess after the contributions were restored. Jones V. Butler, 87 N. Y. 613 (1882). The German law pushes the debt theory to its log- ical conclusion, and makes the contributions carry interest The increment goes to swell the profits of the contributing, and the losses of the non-contribut- ing, partner. RENAUD gives the following illustrations : First, of profits, when both partners contribute. A contributes $1,000, B $9,000. At end of the year there is a profit of $2,000. A takes $40 interest on his con- tribution, at 4 per cent., B$36o on his; in all, $400 deducted before the net profits of $1,600 are divided between them, giving A $1,840, and B $10,160. Second, of losses. The end of the year shows a loss of $2,000. As $40 is due A, and $360 B, for interest, the aggregate, $400, is added to $2,000, and A stands half the loss, or $1,200, which takes all his capital, and after deducting his interest, $40, pays half B's interest, or $860, to him. Third, of profits, when one partner con- 127 §33- Antecedents. Pt. i,Ch. 2. tributes property and the other does not. A contributes no property, B $10,000. At the end of the year there is a profit of $2,000. B takes $400 interest and half the balance of |i,6oo. He receives his capital, $10,000, interest, $400, and profits, $800, in all, $11,200. A receives $800. Fourth. A loss of $2,000 at the end of the year. Each makes up half the loss of principal and interest. A pays $200 on interest, and $1,000 on principal, account to B, who also loses $1,200. Comman- ditgesellschaften, §33. pp. 233-4. §33. The only theory consistent with partnership is that the firm acquires the title to the partners' contribu- tions by reason of the business in which the firm is engaged, and for its purposes alone. Trade involves the title as an incident of its function. The owners are not presumed to part with the title^ except for the purpose of the joint business. The moment the object of the joinder is accomplished, the title reverts to the original proprietor. The use carries the title by trade necessity, but the co-partner can not retain it after the trade purpose is satisfied. Upon this theory the partners share the capital stock according to their contributions, and share the deficit beyond the contributions as they share the profits. The title to the contribution, though involved in its use by the firm, is between the partners separate estate. Who has the title to a partner's contribution ? pro- voked a controversy; which began in the middle ages, and still continues at the present day. The argu- 128 Pt. I, Ch. 2. Antecedents. §3j. merits urged by the disputants made the answer turn upon the point whether the partner contributed the property itself, that is, the full ownership of it, to the firm, or only the use and enjoyment of the property, while he retained the title in himself. The result of the discussion was a general consensus of authors. They united in thinking that the partner contributed only the use. He retained the title himself.^ The position established by medieval authority is no less sound to-day than it was when first taken. The ancient authority has, in recent times, been called in question, but the reason for doubting the soundness of judgment displayed by the sages of law in settling the controversy are not tenable. The modern obscu- rity arises from confounding the substance of the transaction with its form. The title, when required by the business, must be vested in the firm, in order to enable it to deal with or dispose of the property for the purposes of the business. For this reason the partner makes a transfer of his title to the firm. The effect of changing the title, upon creditors who deal with the firm, has been stated (§2^). They acquire rights by reason of the firm's dealing with the title. They rely upon the title which the firm holds out to them as its own. This is an incident of commercial business, which involves buying and selling property, or exerting the powers of proprietorship. But the partners do not possess the stranger's right to insist that the title shall belong to the firm. They know the actual title, and do not infer a title from the indi- cia of ownership. Nor is their position changed by 129 534- ANTECEDENTS. PT. I, CH. 2. dealing with the firm as owners of the property. The partnership is not in fee or for life. The transfer of property is restricted, like the partnership, to a given period, or is at will. They know that the title remains in the contributing partner, subject only to the firm's right to control the title during the partnership. This is equivalent to the firm's use of the property, which remains in the contributing partner, and at his risk, though temporarily subject to the enjoyment of the firm. I. It is sufficient to refer to the autiiors who give a summary of the literature upon this point; i; Gliick's Elauterung der Pandecten, p. 394 et seq. §965 ; TROPLONG, p. 61 et seq., §587; Judge HOFFMAN, in Hasbrouck v. Childs, 3 Bows. 112 et seq. The exceptional provision of the French Code, supra, ?3i, n. 3, which makes the contributions firm property, is ascribed to POTHIER, who followed ARETIN against the array of great Civilians. TROPLONG, supra; VAV., |8;-c)4. The German and Austrian codes have followed the French, supra, ^29, n. i. §34. The losses of capital are shared, like the addition to capital,^ in proportion to the contributions. A partner contributed ^10,000, the co-partner his services, and they shared the profits equally. The capital was lost, and the contributing partner sued his co-partner for half the loss, ^^,000. The court refused to shift the loss, or any part of it, upon the defendant.^ The contribution is the property of the partner. When 130 Pt. i,Ch. 2. Antecedents. §34. the title passes to the firm, either on account of the nature of the property or the convenience of the busi- ness, the transfer is made only for the occasion, that is for the partnership. Apart from the business, the property belongs to the contributor. He does not give his property away after the partnership is ended. The contribution is limited to the duration of the part- nership. When the partnership is dissolved the title reverts to the original owner. The purpose for which the title was transferred has been served, and the provisional title of the firm is exhausted. The firm debts, it is urged,^ are paid by the contri- bution, and the contributing partner ought to stand in the shoes of the firm creditors. The argument is a petiiio prindpii. The right of subrogation depends upon a prior right of a partner. If he has no primary right to make his co-partner share his loss of contribu- tion, he acquires non by the subsidiary right of sub- rogation ; the right, if it exists, must arise out of the partnership. This construction imposes upon the non-contribut- ing partner the obligation to make a contribution equal in amount to the contribution of his partner. But that was not the agreement of the partners. If they had intended to contribute equally, the articles would have bound both to contribute an equal amount. The con- tributing partner would have made his contribution conditional upon a co-equal contribution by his part- ner. This is the effect of charging the contribution upon both. But the contribution is not a sham performance of 131 §34. Antecedents. Pt. i, Ch. 2. an obligation, advanced in form by one partner, but, in substance, made by all the partners. This con- struction would make every member a contributing partner. All might not contribute at the start, but all contribute in the end. The so-called contributing partner merely advances the capital until the loss comes, and then he makes his partner contribute his share of the amount, although he undertook to con- tribute the whole sum himself. He not only agreed to make the contribution himself, but he also agreed not to exact a contribution from his co-partner. In spite of both agreements, he turns round as soon as the contribution is impaired, and repudiates both his positive undertaking to furnish the contribution and his bargain not to call upon his partner for a contri- bution. The contribution is not made by him. It is only lent, or advanced, by him on behalf of himself and his partner. The obligation for the contribution is upon both, though the advance in the first instance is due from the contributing partner. If both are debtors for the contribution, though at different stages, how can it be a separate obligation, independent of the firm? It is a joint obligation of the firm, which receives the consideration and pays for the benefit. It is not an individual obligation, for the individual does not shoulder it, but charges it upon the firm. The temporary and intermediate assumption of the obligation is replaced by the obligation of the firm, which, from the start, is bound to refund. The contribution, in this aspect, is simply an ad- vance. 'The idea and type of a contribution is merged 132 Pt. i.Ch. 2. Antecedents. §34. and lost in a loan, or advance. There is no longer a contribution, but only an advance, and if the contribu- tion is a debt, the firm would start without assets, and would become insolvent as soon as it began busi- ness.* The contribution would at best be but a con- ditional asset, dependent upon the debtor partner's means to reimburse the creditor partner his contribu- tion. He would not be compelled to wait until it was exhausted, in order to put an end to the relation, but would be entitled to stop the moment the contri- bution was impaired.-^ This construction, however, is in the teeth of the contract. The bargain is not to guarantee a contribution, but to make a contribution. " Societas autem coiri potest et valet etiam inter eos, " qui non sunt' (Bquis facultatibus, cum plerumque ^' pauperior opera suppleat, quantum ei per compara- ' tionem patrimonii deest. "^ The fact, however, that a partner could not dissolve, where the partnership was for a fixed term, until his contribution was exhausted upsets the theory, and shows that the contribution is not a debt. Societas solvitur * ex rebus * ideoque * si res " interierit distrahi videtur societas. Intereunt * res " vero, cum nullce relinquantur * neque enimeiusrei " quce iam nulla sit quisquam socius est."'' I, Contribution refunded before profits shared. By practice profits not withdrawn became contribution. In successive changes of partners from '67 to '8g, the basis of contributions fixed the value of purchases of shares and settlements. On dissolution, estimated on that basis, personalty went to new firm, and real estate retained by partners. One demanded division of realty according to profit sharing. — Divided according to contributions. Not surplus divided as profits, but capital. Molineaux v. Raynalds, 35 A. 536 N. Y, (i8g6). 133 §34- ANTECEDENTS. PT, I, CH. 2. 2. Everly v. Durborrow, 8 Phila'a R. 93 (1871). Partner not bound to share co-partner's loss of contribution. A & B agreed to mine and sell coal, B to advance capital and take profits, with half a cent bonus per bushel until advances repaid, when profits equally divided. B's advances, $15,000. A took charge at mines, B at place of sale. In account, A, charged with half the loss of $1,800, appealed. — Reversed. A not bound to contribute for B's loss of capital. McCormick v. Stofer, 12 S. W. 151 Ky. (1889). 3. Partner's contract to sbare losses equivalent to repaying co-partner's capital exhausted in paying them. Against A's contribution of $5,000, B contributed his services. They shared the profits and losses equally. B could withdraw out of his profits $i,oco a year for his management, but agreed to leave the balance until they equalled A's contribution. It took the firm a year and nine months. to sink A's capital. He sued B for $2,500.— Recovered. The contract to pay half the debts was equivalent to repaying half of A's capital, which was exhausted In satisfying them. Emerick v. Moir, — 124 Pa,,489 (1889). Relying upon Yohe v. Barnet: Partner's consideration for partnership contract including his undertak. Ing to share co-partner's loss of contribution, if expressed is for the jury. A & B each, contributed $3,000, and C his labor, profit and loss to be divided equally. A sued C for contribution to a diminution of capital. Court below held that in such case A lost his capital, and C his labor, and no more, and that the terms of the agreement did not alter the case. Counsel urged that the word losses meant losses beyond capital invested. — Decision : Court said it was alto- gether a question for the jury upon the whole evidence, of which the written mem. was a part, whether C agreed to stand part of the loss, or not, and the Court below should not have treated it as a matter of law. And it was questionable, upon the terms of the instrument, whether the provision for a divis ion of profit and loss did not charge C with a duty to contribute to a diminution of capital, but the jury must decide. Yohe v. Barnet, 3 W. & S. 81 (1841). 4. Money contributed against services makes them a contribution of equal cash value. A & B contracted to build a bridge-pier, and, being embar- rassed, formed a partnership for the job, with C, who contributed $3,000 against their services. Profits, $8,000. In settlement, A and B's services computed as contributions, at $1,500 each, to balance C's $3,000. — After repaying contributions, $2,000 divided among the part- ners, or $666.67 each, C's advance not a bonus to join embarrassed 1 34 Pt. I, Ch. 2. Antecedents. §35. firm, nor equivalent to A and B's services. Imeson v. Schriver, ii S. W. 598, Ky. (1889). 5. Failure of undertaking ground for dissolution. Tliree persons owned an island in the Carribbean Sea. They sold half to B for $30,000, raised a working capital of $20,000, and gave him full management and control of the island, for sale or lease on joint account. B sold out to A, who bought an additional fourth, the remaining fourth having been bought by C. A applied for dissolution and account. One operation failed within a year and a half, and the concern lost $5,000. C was individually indebted to A for $20,000. C objected that the undertaking could not be abandoned, except by mutual consent, until the land was sold or leased. — Failure of undertaking sufficient ground for dissolution. Moreover as no period had been fixed for its duration, the partnership was only at will. Wood v. Warner, 2 McCart. 81, N. Y. (1862). 6. D. 17, ^, 5- 7. D. 17, 2, 63. §35. A partial loss of capital must be distributed according to the theory of the contribution which prevails. The question presents itself frequently where there has been a partial loss of the firm capital. The loss must be distributed either according to the theory of a debt, or of separate titles in the partners. By the debt theory as the excess of capital contributed by any partner in the case of a total loss must be made up by the co-partners, so must any partial loss of capital be made up by the partner who contributes less than his co-partner in the ratio in which he shares the profits. 135 §35- ANTECEDENTS. PT. I, CH. 2. The effect of the, plan is to make the partner who contributes no capital to the firm stock insure the capital of his co-partner in the same proportion as he shares the profits. A contributes ^100,000, B his services, and they share the profits in equal parts. A loss occurs of ^^o.ooo. B owes A ^25',ooo. That is, by the debt theory, the firm owes A ^100,000, but A, as a partner, owes himself ^^0,000, and the loss is divided between them, ^2^,000 each. The English theory vests the title to the contribu- tions in the partners in the proportion in which they share the profits, but this theory discloses no reason to charge the non-contributing partner with half his co-partner's loss of capital. Each partner would lose his half of the joint property, and that would be the end of it. In the case put, each partner owns J^^o,ooo of the capital, and after sharing the loss according to his ownership, has $2^,000 left. It is inconsistent to make the partner's ownership in his co-partner's con- tribution a premium paid for the insurance of the con- tribution to a corresponding amount. This would make the contribution a debt which the partner owed, notatitle which he owned. The theory hasno founda- tion in reason, nor is it maintained with the steadness which indicates a belief in its soundness. A slight suggestion of a different intention by the partners is sufficient to supercede the theory and re-establish a distribution of loss according to the contributions.' In fact, the readiness to revert to the separate titles of the partners, in order to measure a loss of the con- 136 Pt. i,Ch. 2. Antecedents. §35. tributions among them, is proof of a legal instinct, if not of a conscious apprehension of the theory which is consistent with partnership.^ The theory does not prevent the partners from dividing the assets in a pro- portion different from the ratio of contributions, if they see fit to make such a contract. The theories which have been acted on are inferences drawn by different judges from the conception entertained by them of the partnership relation, and are superceded by any agree- ment made by the partners.^ The inference is made only in the absence of an agreement by the partners upon the point. The question does not affect third persons, and is not affected by their right to make the contribution firm property for themselves. The question relates to a domestic arrangement between the partners, and is limited to their rights. The adjustment is made sub- ject to the claims of third persons, and embodies the ultimate settlement between the partners after all claims against the firm have been disposed of. The inten- tion of the partners regulates the matter ; which is con- fined to themselves, and controls the construction of the courts. If the contribution belongs to the partner making it, the title will measure the loss. He takes the risk of his property, which he staked in the business. As each contributing partner does the same, a partial loss of capital is divided between partners in proportion to the amount contributed by them. The contributions of two partners were as three to one, A ^9,000, B ^3,000, but the profits were divided 137. §35. Antecedents. Pt. i, Ch. 2. equally. The partial loss, ^3,000 was divided between them in the ratio of 3 to i. ^2,2^0 by A, ^7^0 by B, the assets left being the property of each partner in the proportion in which he contributed them, A ^6,7^0, B ^2,2^0.' 1. In England, the partners agreed to divide the assets according to their interests in them. The English construction makes the interest of a partner in the capital stock correspond with his share of the profits, but the agreement indicated, it was thought, an intention to divide the assets according to the contributions made by the partners, and superceded the con- struction of law. Partners' agreement to divide surplus assets according to Interests in them overrides legal construction of provision to share profit and loss equally, and divides assets according to contributions. A & B, partners, agreed to share profits and losses equally, and, upon dissolution, to divide the surplus assets according to their interests in them. The contributions by A & B were as i to 2, and carried interest. Either partner, who might let his profits accumulate, would be paid interest on the additional capital. B made advances, apart from his contribution and accumulated interest. On settlement, the assets amounted to £3,000 ; A's capital to €830, and B's to £4,000. B, who wound up the business, took the assets for his excess of capital. A sued for a share of the assets pro- portioned to his capital. — Recovered. The assets are the capital, and distribution according to interests in them is according to contributions, and excludes equal liability for them as debts ; which must be paid beforeequal distribution of profit and loss could be made. The advances, independent of contribution, charge both partners equally, as a debt. Wood v. Scoles, L. R., i Ch. 369 (1866). 2. A partner, contributing ;^75,ooo, guaranteed his co-part- ner, contributing $10,000, profits to the extent of gio,ooo the first year. The year showed a loss of gio,ooo. The guaranty reversed the Massachusetts construction of law, and made the guarantor pay his co-partner $io,coo instead of collect $5,000 from him. Guaranty of profits consistent with partnership. A contributed $7;,cco, 138 PT. I, CH. 2. ANTECEDENTS. §36 and B $10,000. Profit and loss to be divided equally during continuance of firm. For first year A guaranteed B that his profits should not be less than $10,000 ; notwithstanding losses to any extent. Dissolution at end of first year, and loss of about $10,000.— B took $10,000, and remainder divided between them, " according to their respective pro- portions." Grant v. Bryant, loi JWass. 567 (1869). 3. A supercargo, paying ;^i,cioo, stipulated for a salary and a fifth interest in the ship and cargo, which cost between ^15,000 and ^18,000. The agreement was sufficient in Massa- chusetts, where a non-contributing partner has no title to firm stock, to give him title to 1-5 of the assets. Agreement will regulate a partner's sbare in the firm property, independent of tlie amount of liis contribution. By the articles, B furnished a vessel and cargo, at a cost of from $15,000 to $i8,coo, and A was supercargo, at $50 a month and 1-5 interest in vessel and cargo, for which he paid $1,000. On dissolution, A claimed 1-5 interest in the property. — Re- covered. Partnership, with 1-5 interest to A, notwithstanding salary and the disproportion of his cash contribution. Julio v. Ingalls, i Allen 41 (1861). 4. Christman v. Baurichter, 10 Phil'a R. 115 (1874). §36. The ratio of profits, if not fixed by agreement,' will be ascertained by the jury, in order to be available as a standard for distributing the loss of capital among the partners. No ratio may have been agreed upon for sharing the profits. In this event the Code Napoleon enacts: " Tliat when the contract of partnership does not de- " termine the share of each partner in the profits or 139 §36. ANTECEDENTS. PT. I, CH. 2. " losses, his share is in proportion to his contribu- " tion."^ This provision embodies the general view of Civilians in reference to a partnership for gain.' But the German Empire, as well as the Austrian, has adopted, in the absence of a different agreement, the rule of equality for sharing the profits of a business partnership. The Commercial Code says: "Profit or " loss, in default of any other arrangement, is divided " among the partners by heads."* The English plan refers the ascertainment of the parts to the jury. That means a reference to the men engaged in such a busi- ness, who are alone competent as experts to testify what elements enter into a determination of the ques- tion.^ But sharing the profit and loss does not mean sharing the contributions. They are between the partners separate estate, and the firm looks for its profits to the surplus which is left after the partners have re-taken their contributions, and makes up the deficit which remains after the contributions have been lost. It is only when the amounts contributed by each partner are not known, and cannot be ascer- tained, that the ratio of profit and loss measures the interest of the partners in the assets which belong to the firm, because they cannot be identified by the partners. There is no presumption of law, and the presumption of fact arises only on default of any clue to the intention." I. Profits shared according to contributions by contract. C, in expectation of a Government contract, agreed with A & B to furnish half tlie capi- tal, and they one-fourth each, in order to carry it out, and to share the profits and losses according to the contributions. C furnished no capi- tal. A & B, who supplied the capital and did the worlc, claimed the 140 Pt. I, Ch. 2. Antecedents. §36. sum which C recovered from the Government. — Judgment for A & B. Hobbs V. McLean, 117 U. S. 567 (1886). 2. " Lorsque I'acte de societe ne determine point la part de chaque " associe dans les benefices on pertes, la part de chacun est en pro- " portion de sa mise dans le fonds de la societe. A I'egard de celui qui " n'a apporte que son Industrie, sa part dans les benefices ou dans " les pertes est reglee commesi sa mise eutete egale a celle de Tassocie " qui a le moins apporte." C. C. 1853. 3. 17 Duranton, Cours de Droit Fran^ais, 438. 4. Der Gewinn oder Verlust wird, in Ermanglung einer anderen Ver- einbarung, unter die Gesellschafter nach Kopfen vertheilt. Com. Code, ?iog. 5. In default of agreement, jury settles division of profits and presumes equality unless inconsistent circumstances appear. Court below referred to jury the fact of partnership, and, in default of agreement, the proper division or profits. — Submission sustained. In the absence of agree- ment, the jury, or the judge sitting as a jury, must find the probable intention. Equality a presumption of fact, which becomes controlling in default of all guiding circumstances. Thomson v. Campbell, 5 Wil- son & Shaw, 16 s. c, Thomson v. Williamson, 7 Bligh 432 (1831). 6. Contributions and shares in profits presumed to be equal. A, B & C, partners by oral agreement, each contributing personal and real estate ; A and B 350 acres each, and C 640. With the proceeds of the real estate they purchased a ferry franchise and property, which, on disso- lution, formed the chief assets. The evidence indicated that D was also a partner. There was no agreement for a division of the profits, and the amounts which each contributed were apparently not proved. A and B, in account, claimed against C a 2-3 interest in the assets. — Each received a 1-4, because, in the absence of proof, the shares were presumed to be equal. Knott v. Knott, 6 Oregon 142 (1876). Partners share stock and profits equally. A & B, partners. B died, and A was his administrator. No agreement fixing share of stock or profits.— Equal shares. In absence of agreement, shares presumed equal. Unruh's Estate, 13 Phila. 337 (1880). Presumption of equality In capital and profits. A & B, partners, sub- mitted to arbitration. By the award, uncollected assets were divided equally. A had a claim against the firm.— B owed 1-2 the debt. There being no evidence of the partners' interests in profits or capital, their sharer were presumed to be equal. Farr v. Johnson, 25 111. 522 (1861). 141 §37- ANTECEDENTS. PT. I, CH. 2. Partner's interest presumed equal. A, B & C owned a farm in com- mon, and managed it in partnership. A lent money to the firm. His executor brought account against B & C. A entitled to credit for his loan. There being no evidence, the interests presumed to be equal. Roach V. Perry, i6 111. 37 (1854). §37. The only peculiarity of a special partner's contribution is the statutory requirement, that it must be made to the firm. The construction put upon the statutory mandate, enacted to enforce the special partner's contribution, is a marvel of -hermeneutics. The courts do not recall the historical fact that the partner who does not join in the management of the business, but makes a special contribution, has never been charged with unlimited liability by the Law Merchant, which England adopted. Having lost sight of his original status, they regard him as an exceptional freak of legislation, and proceed to put him outside the pale of judicial reasoning. Whenever a special partner's rights are at stake, trifles become the staple of argument, and captiousness the ruling spirit. The finical objec- tions constantly taken, in order to charge the special partner with unlimited liability, are incomprehensible, especially in contrast to the encouragement given to defa^o corporations (§24), which are advocated when they are admitted to be usurpations.' The reason 142 Pt. I, Ch. 2. Antecedents. § 37. alleged for extirpating a special partnership applies, with the added force of numbers, to defa^o corpora- tions, and adds a new gloss to the biblical aphorism, "strain at a gnat and swallow a camel," and exempli- fies in law, the domestic economy, which "holds in at the spigot and lets out at the bung." Even the member of a legal corporation, who claims exemption from any liability beyond his contribution, can make out his immunity only through the pedigree of the special partner. In an admirable summary of the authorities. Bates has stated how, though that was not his purpose, the statutes enacted in the different States, to re-establish the special partnership, which the courts originally excluded, have been used by them to frustrate the intention of the parties to this commercial contract.^ Out of the letters of .the Statute, as Swift did out of the letters of the paternal will,^ they made for a com- mercial enactment an artificial construction, which ignored its raison d'etre. Special partnership embodies a principle necessary for the development of modern law. It is a generel principle of the commercial law of Europe, and of America.* The courts of England, however, excluded special partnership, although they professed to adopt the Law Merchant. The legislature inter- vened, to correct the blunder and to re-establish a limited liability in commercial enterprises.'' But a statutory is not equal to a judicial developement, and no discrimination was made between the joint stock companies which could be organized under general statutes. The association exists on the continent of Europe without legislation, either as a limited or as a special partnership. Each kind may be formed with joint stock, and 143 §37. Antecedents. Pt. i, Ch. 2. the shares will represent the interests of the partners. The special partnership is called Society en commandite par actions, or Commanditgesellschaft auf Actien; the lim'ited partnership, societe anonyme, or Actiengesellschaft. The vital difference between them was overlooked by Parliament. The exemption from unlimited liability in a special partnership organized as a joint stock company extends only to the members who take no part in the management of the association," but extends to every member of a limited partnership so organized. Two evils resulted from the refusal of the courts to recognize the institute as a part of the Law Merchant. First: They abne- gated the judicial function, which consists in working out the principles of law into a coherent system, and brought about what they professed to abhor. They drove away applicants who, for refuge, went to the legislature, which permitted part- ners to organize as a company, and restrict their liability to the amounts contributed. Second: The community lost the intelli- gent direction of the courts in working out the principles of partnership law. The security and efficiency, iwhich result from the unlimited liability imposed by the commercial law upon the managing members of a special partnership associa- tion, have been abandoned. It is the want of this wholesome restraint, and of the caution induced by it in transacting busi- ness, that accounts for the exhibition witnessed, unfortunately on a grand scale, of speculation and corruption, by companies which have been improvidently substituted for special partner- ship associations. A further evil resulted from throwing upon the legislature the work which belongs to the courts. The exemption from liability, as it was acquired by statute, was mistaken for a State prerogative, and a joint stock company lost, in general estimation, its distinctive character as a private organization, and became the delegate of a public franchise. This misconception obliterated the distinction between a cor- poration and a company,'' and led parties to seek incorporation, which was the avowed grant of a franchise. The universal resort to incorporation for private enterprises, led the State, 144 PT. i,Ch. 2. Antecedents. §37. from weariness, to abandon the grant of charters, and to permit self-incorporation under general statutes. The State, overtaxed by the applications for incorporation, abnegated its prerogative and deprived itself of an essential function. The State has lost its initiative in public enterprises, and has granted indis- criminately to private associations the sovereign prerogative, which, by right, can be exerted only for a public use, or for the common benefit of al!.^ a. " Au fond, objectera-t-on que la limitation de la responsabilite aux " mises des associes est contraire a ce principe du droit civil d'apres " lequel quiconque s'oblige tous ses biens? Mais ce principe n'est " qu'une regie generale, susceptible d'etre amendee par convention; " car il est incontestablement permis de limiter son engagement a cer- " tain biens; cette limitation, qui devient la regie dans les societes " commerciales, serait valable a titre d'exception, dans les societes " civiles ordinaires, et obiigatoire vis-a-vis des tiers si elle etait connue " d'eux. Or cette connaissance leur sera donnee au moyen de la pub- " licite exigee par la loi commerciale." Vav., s 348. Special partnership is not a kind of partnership, but is a modifica- tion of general partnership. Marshall v. Lambeth, 7 Robinson La. 47 (1844). Foreign special partnersliip recognized by comity. B, special, and C and D general partners, in Cuba, trading as C, D & Co. B who had never acted or held himself out as a partner, failed to observe the statutory requirements of contribution in cash, and of recording certi- ficate, which were held directory in Cuba. A lent the firm money in N. Y., and sued B as a general partner. — Judgment for B. Cuban special partnership recognized by comity. King v. Sarria, 69 N. Y. 24 (1877). Foreign process against special partnersliip reguiated by foreign iaw. B, general, and C, special partners, who traded, in Massachusetts, in B's name, suspended payment. D, a Massachusetts creditor, attached debts due the firm B, in New York, Alabama and Arkansas, and recovered the claims. A, B's assignee in insolvency, sued D. for the amount collected.— Judgment for D. Though equity would not let D obtain a privilege by attaching insolvent's property in another State, the law does not take away the privilege when thus obtained. The attachments against B bound the firm, because the Massachusetts Statute made B's name the firm designation, and, although without extra territorial force, is recognized as the law of the partnership. 145 §37. Antecedents. Pt. i, Ch. 2. Though attachments invalid and payment by garnishees voluntary, A could not recover from D ; the judgments cannot be impeached in this collateral suit. Special partner, if unknown, should no more be joined as defendant than dormant partner. Lawrence v. Bacheller, 131 Mass. 504 (1881). b. Law of partnership, by NATHANIEL LINDLEY, i vol. 6, et seq. ■,. RENAUD, ?i3, p. 94. d. " Confirmatio (apud Anglos ' charter') Societatis a Principe impetrata " num ad valorem contractus requiratur, fluctuat sententia iurisconsul- " torum. Alii enim utique eam desiderant, alii omitti posse aiunt, alii " pro casuum diversitate modo hoc modo illud statuunt verum esse. " Re accuratius perpensa verius mihi hoc visum est Distinguendse " sunt societates innominatas ex diversitate operis, quod faciendum " suscipitur. \\\partner8. Tbey answer oniy for principal and interest. Articles pro- vided for payment of partner's share in installments within i8 months after his death. D died, appointing his partner, C, and others, trustees and executors. C alone acted, substituting three co-trustees, who made him their agent. C did not withdraw D's interest, but left it in the firm. The beneficiaries claimed the profits made in the business from C, and from his co-trustees, and also from his co-partners, although they were not parties to the proceedings. — Recovered from C, who was solvent, profits made by him. Co-trustees would be liable only for debt and interest (dissent would charge them jointly with C) as would his partners. Laird v. Chisholm, 30 Scotish Jur. 584 (1858). Co-partners are identified witb the trading trustee, and are liable for the profits which he earned by means of the trust fund, although i6i §42. Antecedents. Pt. i, Ch. 2. they received nothing. What is necessary in order to chiarge a trustee for the profits made by trading with trust funds.' Must the profits be received by him ? If co-trustees did not use the fund, and were not enriched by the profits, they could not be said to retain the profits which belonged to another, for they did not receive any profits. The question may be asked : Do they not answer merely for negligence in not preventing the trustees from trading with the fund.? The liability for negli- gence would be to make good the loss occasioned by the trad- ing trustee. This would be compensation or indemnity, and include the principal sum employed by him in trade, and the interest upon it. Would the co-trustees, who made no profits, be punished, and a penalty inflicted upon them after they had made up the loss to the cestuy que trust? This would make the co-trustees take money out of their own pockets, in order to enrich the beneficiaries beyond the loss. The answer is: The trustees are a unit. All are deemed to receive the profits, because they have the control, and are charged by law with its exertion. They do not answer for the profits made by a different person, but for the profits received by themselves through a member identified with them. 2. LORD CAIRNS, Vyse v. Foster, L. R. 7 H. L. 333-4 {1874). Partners trading with co-partner who contributes trust fund are liable to cestuy que trust for Interest, or the profits of its employment. B, execu- trix of husband, C, in 1854, took his assets for her contribution to firm, which she formed, stipulating for profits in proportion to contri- bution. Different firms succeeded first until 1864, when B went out. She had declared trusts of fund February 28, 1862, and agreed to indem- nify co-partners. She became bankrupt. Children of C brought account. — Decree. D partner from beginning, and E from July i, 1862. They appealed. — Affirmed. Plaintiffs entitled to enquiry, in order to elect interest or profits of testator's assets employed in trade. An appropriation, not a loan, of trust fund, which partners acquired with knowledge of the breach of trust. Flocton v. Bunning, L. R. 8 Ch. App. 323 n. (1864). 3. Cestuy que trust entitled only to trustee partner's share of profits made by use of trust fund. By settlement, B and C, trustees were directed to 162 Pt. i,Ch. 2. Antecedents. §42. call in debt of £350 from banking firm, of which B was a partner. The debt remained uncollected for 16 years, when the firm was dis- solved. C died during the interval, and D was substituted co-trustee. Cestuy que trust brought bill against B for profits made by use of the trust money. — Entitled to only 1-3, or B's share of firm profit, and, therefore, interest with annual rests allowed at election. Jones v. Foxall, 15 Beav. 388 (1852). Coatract for purchase of deceased partner's share by surviving partners executed, in spite of terms unperformed and price unpaid for 23 years, if salei apart from its formalities, intended by the parties ; deceased partner's legatee could not impeach sale and claim profits because executor a partner. Part- ners B & C, with capitals respectively £go,ooo and £40,000, had received equally their father, the firm founder's Interest. Remaining partner, D, had £7,000 capital, and new partner, E, nothing. Each received 5 per cent, interest on his capital and accumulations, and B 6-16, C 5-16, D 3-16, and E 2-16 of profits. At different periods profits were re- adjusted among the old and incoming partners, but not according to the contributions. By articles, surviving partners should take de- ceased partner's share at price fixed by last account of stock, and pay instalment notes, maturing in two years from his death. B died in 1855, making C, his son G, who subsequently became partner, and H his executors. They left B's share in firm at 5 pir cent, interest, added annually to principal, against which cestuy que trust drew, like other members of the family, against their deposits. Eight of the nine legatees, testator's children, and the annuitants, his widow and father, ratified the sale. But A, the youngest child, who attained majority in 1865, brought bill against C, in 1870, for profits. — Dismissed. Articles effected a sale of B's share to co-partners, who became debtors for the price. Though neglect to withdraw, a breach of trust, which benefited firm, appointment of partner executor, which extinguished debt at law, and left it only a debt in equity released executors from performance of terms available only for legal debts, and making son co-executor, who could not enforce terms at law, also indicated a dispensation of execu- tory terms, in order to preserve ancestral business. By ratification, others made transaction lawful with them. Were capital the only source of profits, the children's quotas, principal of annuities and deposits would be counted with partner's contributions, and A's share would be only her share of the aggregate ; but where capital is a factor at all, it is never the leading element in profits. The main source, apart from the good-will, is the partner's capacity. Their shares were not based on the amounts contributed, but on their quotas of the good-will and their services. Interest was the measure of capital for contributions and loans. Recovery could be only against executor-partner, and for 163 §42. ANTECEDENTS. PT. I, CH. f. proportion of profits made by him with trust funds. To charge him for co-partner's profits would not be equity, but punishment. Vyse v. Foster, L. R. 8 Ch. App. 309 (1870). — Affirmed on appeal. Testatordis- pensed with performance, of which time was not the essence. Delay would not justify inference of collection and a re-loan. Bill incon- gruous; could not rescind against executor partner sale, which subsists for surviving partners ; claim for interest on surviving partners' shares as a creditor for the price and for profits out of executor partner's share as a co-partner. Query: Active breach of trust would charge all part- ners aware of it, but not one for all. L. R. 7 H. L. 318 (1874). A rough estimate is sometimes made for convenience sake, in order to avoid the trouble of ascertaining the constituent por- tions of the profits. An allowance is made out of the profits to the firm for services, and the compensation is deducted be- fore the cestuy que trust's share is estimated. An allowance of 1-3 for management has been made in other cases, and adopted in partnership. If decedent's business is carried on with liis assets by administratrix, his creditor may compel her to account for 2-3 of the profits. B, pawnbroker, died, leaving $3,000 assets, with which C, his widow and administra- trix, continued the business. She made $1,700 profits a year. A obtained judgment against B's estate for $6,400, and claimed payment out of the profits. — Entitled. C allowed $600 for expenses, and charged with $1,100 as net profits, aggregating in 14 years $15,000. Robinett's Appeal, 36 Pa. 174 (i860). Ward must elect in advance for fund put by guardian in his firm, either profits of business or principal and interest, without drawing court's opinion : whether the profits are of the guardian or of the firm, and with or without allowances to partners for management. B put, in 1866, ward A's money $9,826.84, in firm of B & C, C going surety for B as guardian. Account in firm books gave credit, with 6 per cent, interest, carried to guardian's account every six months, after deducting A's maintenance. B lent trust fund, $39,000, to firm, in April, 1866, when his contrib- ution was $30,000, and C's $95,000 and his interest 1-4. On October ist, 1866, B's share increased from 1-4 to 1-2. The partners' capitals varied greatly in amount during the partnership, but no other change was made in their shares, the capitals for the time being carrying 6 per cent, interest. In 1880, on C's suicide, A attached B, who, eo die, paid over balance due A, $13,691.11. A claimed election of principal and interest or of profits in B & C's business ; but refused to elect until court decided what share A had in firm profits. Orphans' Court 164 PT. I, CH. 2. ANTECEDENTS. §42. allowed 1-3 profits to partners for management, 1-2 balance to each as his share of profits, and refused to surcharge B forC's share of profits. As A refused to elect, Orphans' Court entered decree for principal and interest. A's claim : Share as quasi partner in proportion to his capital used in business, without allowance for co-partner's services. Defence: Interest the direct measure in value of A's fund. Profits represent good will of business and capacity of partners. — Affirmed. Seguin's Appeal, 103 Pa., 139 (1883). If the testator provides for a Yalnation and account of his share by the surviving partners, the inference is a sale of his share to them. An element is frequently introduced which changes the nature of the relation. The testator directs his partners to liquidate his share and pay over the sum to his executor. The direction effects, a sale of his share to his partners,, and converts the relation of trustee and cestuy que trust into that of debtor and creditor. The change saves the partners from liability as trustees ex maleficio, and charges them simply with interest upon the testator's share as a debt.'' The direction may be to liquidate the share within a given period, and pay it over to the executor, but a partner may be appointed the executor. The appointment deprives the estate of the right to enforce the payment at law, and makes the claim an equity. The courts infer from the appointment that the tes- tator meant to leave the withdrawal of his share to the dis- cretion of his executor. If he does not collect the debt, it remains in the firm on the footing of a loan. "■ • a. Laird v. Chisholm, supra. Vyse v. Foster, supra. 4. He sums up his demonstration in figures: "Let the total profits " equal 9, then, as each of the three partners has one equal thit^d part " of the capital, the share of profits earned by each partner's capital " will equal 3. That is 3+3+3, the sum total of the profits so made, " each share of capital contributing 3, amounts to 9, the total profits. " If, then, the executor partner received simply the profits which his " share of capital makes, he would get 3 ; as it is, out of the three " made by his share of capital he receives i only, the other 2 being " divided equally between his partners. The argument against me " is, 1 submit: If he was paid the whole 3 which his share produces, ' " he should be made to account-for that 3 ; but as all he gets is i, hei 165 .■ 543- Antecedents. Pt. i, Ch. 2. " shall only account for i. I answer, he gets indeed i only from each " of the other two shares ; therefore the net result is, that instead of " getting 3 and having to account for 3, he gets i+i+i, which, arith- " metically, equal 3, but still only subject him to the necessity of " accounting for i." Critique " On the Doctrine of Vyse v, Foster," by G. F. HAMILTON, 3 Law Quarterly Rev. 2n ; 1887. §43. The difficulty of ascertaining the share of profits attributable to the capital in a business, and especially in a partnership business, does not prevent the cestuy que trust from reclaiming, with his money contributed by the trustees, the profits gained by its employment. The general rule that a trustee must account for profits made with trust funds applies to partnership. The mystery of the elements involved in the produc- tion seemed to form a barrier to an investigation. But unless the right to make inquisition is acknowledged, the trustee would take advantage of his own wrong. He could create the complication, in order to profit by it. Equity would abnegate its prerogative if a trustee could defy its powers and neutralize its process. The suggestion could not be entertained by a chancellor. The decree for an investigation must be granted.^ What part of the profits is the product of capital must be left open for investigation in each case. It being established that the principle of equity extends to funds used by a firm, and en- titles cestuy que trust to elect either profits or interest in re- 166 Pt. i,Ch. 2. Antecedents. §43. turn for the employment of his property, the question presents itself : What part of profits is made by the capital ? The query suggest another : How many sources are there of profits, and is there any fixed proportion for the co-operation of the various factors ? The ratio, it is obvious, may vary with the kind of business. In one class, the estate of a deceased partner might be entit- led to the share of profits which the partner had while living. The business might consists in dealing with patents owned by the deceased partner. His property formed the basis of the firm business, and continued for his estate the share of the profits which he enjoyed in his life time.* In like manner the good-will and connections of the firm may constitute the foun- dation of the business. The deceased partner's estate shares the profits which result from the continuing operation of the original cause.** So a partner may contribute the capital and his co-partner his services. Upon the co-partner's death before a good-will and connections were established, his share of the profits would also cease, and go to a successor, who replaced his services. In a different class the capacity and services of the partners may be the chief elements of success in the business. The business of the partnership might require no capital, and trust funds deposited in the firm would earn no part of the profits.° The question is not, however, an alternative of a contribu- tion earning all the partner's profits, or earning none of them. The capital generally plays an intermediate role, co-operating with the other factors in earning profits. The capital makes a part of the profits, or it would not be contributed to the firm. But the nature of the business, the good-will and influence attached to it, the capacity and services of the partners, must be taken into account, as well as the capital contributed by them. No rule can be laid down which will work out a uni- form rate in the product when the factors combined to make it do not remain fixed, but vary in the combination. The contri- bution itself may vary in amount, and often does vary, without 167 §43- Antecedents. Pt. i, Ch. 2. affecting the ratio of profits which the contributing partner takes. iiity of defendants ; partnerstiip surplusage. A summoned and attached B and C in assumpsit. Affidavit for attach- ment and declaration against B and C, " styling them partners as B & C. Declaration amended to conform to original writ. Judgment for A against property attached. — Affirmed. Description of defend- ant's surplusage. Partnership don't exist apart from its members, who must be sued as individuals, and not as a firm. Sufficient, if the parties are jointly liable. Courson v. Parker, 39 W. V., 521 s. c. 20 S. E. 583, (1894). Joint act sufficient to charge parties jointly. A sued B & C, mill- owners, for equipment, which he furnished mill.— Joint contract, express or implied, sufficient for recovery without proof of partnership. Sager v. Tupper, 38 Mich. 258 (1878). Joint includes partnership liability. A sued B & C, and subsequently attached stock of " B & C partners under style of B Bros." D pur- chaser from B Bros, intervened, and claimed property on the ground 175 §44- The Test. Pt. 2, Ch. i. that only individual and not partnership property attached.— Judgment and execution under attachment against both partnership and against each individual. Dollins v. Pollock, 89 Ala. 351 s. c. 7 S. 904 (1889). 3. As pleadings Ignore partnership, any evidence of joint act sufficient to prove joint liability. B and C joined in organizing company, in order to sell its shares of stock and deal in coal and coke. B employed as agent and salesman A, who sued B & C as partners for salary- Recovered. SHARSWOOD, J.: " Whether B & C were general part- " ners in any kind of business did not appear, nor was it material. It " would be sufficient to show that they were jointly concerned in the "particular transaction in which the plaintiff was employed." Kirk V. Hartman, 63 Pa., 97 (1869). Performance of act charges parties jointly, unless one an agent and otiier disclosed principal. A sued B & C. Judgment against B by default. Reference as to C. B managed C's business and C ratified his acts. Defence. Not partner and Statute Frauds. B's testimony admitted to prove C his partner. — Judgment against C. Though incompetent, testimony did not hurt C, because he was liable whether B was agent, or partner. Only B could escape liability, and then only by proof that he was but an agent ; and that he had disclosed his principal ; but B did not object. C answered for his' own, not another's debt. Bundy v. Bruce, 61 Vt. 619 s. c. 17 A, 796 (1889), 4. The sharer of profits is a partner, and the sharer of gross earnings, though not a partner, is liable for his acts. B, owner of a lighter, let it to C, a lighterman, who agreed to work it and, by the first evidence, to share the profits ; by later evidence the gross earnings. A sued C for repairs ordered by him.^Liable, because he ordered repairs. If gross earnings intended, sharing them would be a mode of compensation for wages which might be received, although no net profits were made ; if net profits intended, B and C would be partners. Dry v. Boswell, I Camp. 329 (1818). Buyer liable for goods alone, or with undisclosed co-principal. B, who kept a drug store at Cherokee, bought goods of A and stocked a store at McCune. He agreed to give C all the profits above 12 1-2 p. c. for managing the branch. A sued B for price. — Recovered. B liable, either as sole or joint proprietor. Woodward v. Clark, 30 Kan. 76 {1883). 5. Why did the court say the burden was on the plaintiff to prove partnership in order to charge tlie defendant in- terested as stockholder in a banking business ? 176 Pt. 2, Ch. I. The Test. §44. The court was misled by the definition of text-writers, who were discussing the formation of a partnership by contract be- ween the partners themselves, and were not speaking of a part- nership as to third persons. The judge found that the bank was not a partnership by contract, and that the defendant was not held out. He drew the inference that the defendant was not a partner, and therefore not liable. He left out of view the fundamental principle of the common law, that joining in an act is sufficient to charge the person taking part in the act. It is not the parties, but the law which creates the partner- ship as to third persons. What a perversion of reasoning ! To deny the existence of the partnership which the law created, on the ground that it was not created by the parties ! The law does not profess to act for the parties, but for the pro- tection of persons dea!ling with them. The argument is called in Logic the fallacy of asquivocation. The term partnership is used in two senses and the argument which excludes the re- lation, in one sense (i. e. created by the parties) is urged to ex- clude a partnership in another and a different sense (i. e. im- posed upon the parties by law). Burden on plaintiff to prove a banklng-company-'Stockfaolder, a partner la fact or by estoppel. A claimed payment from B's estate for deposit in Savings bank, which organized and transacted business as if a corpo- ration. B was a stockholder and received dividends until bank failed. Defence : Defendant need not prove incorporation de lure or de facto, nor any immunity or defence. Plaintiff must prove partnership. — So decreed. Gibb's Estate, 157 Pa. 59 s. c. 27 A. 383 (1893). How can a man escape liability for his acts at Common Law .' Nothing but the legislature can exempt him from liability. The immunity is an intervention of the legislature to protect him from the consequences of his act. Does the liability arise, as the court thought, from the inten- tion of the party, or from his holding himself out as a partner .' No. It arises simply from the fact, and in spite of his inten- tion. The holding out is an independent ground, where the party has done no act which would charge him. 177 §44- The Test. Pt. 2, Ch. i. Would assuming the prerogatives of a corporation create im- munity, or negative the liability? No. The liability is a positive fact, which can be excluded only by proving an exemption. There is no balance of uncer- tainty, vi'hich depends on evidence of partnership or incorpora- tion. The primary charge must be displaced by proof of a statutory exception. Unless that is established, the burden rests on the actor.* The, court said partnership must arise either by contract or by holding out; but there is a third mode. Joining in an act charges the actors whether partners or not. The stockholder joined by taking stock in the enterprise. He cannot qualify his act, or define the extent of his liability for it. The law charges every man for his act. The only way to escape the consequences is to prove an exemption from them by the State. The burden is on the actor to exculpate himself. The plaintiff need not prove partnership ; he establishes the defend- ant's act (i. e. running the bank) and whether it was alone, or associated with others, is unimportant. The act done by him, jointly or alone, charges him with the liability. If so, what relevance has the association with others ? They are also liable, but not on the ground of a partnership between them, but in spite of there being no partnership inter se, on the Com- mon Law liability, because they joined in acting together. To ignore the basis of liability, and release an actor, unless he acted in the capacity of a partner, is to introduce a distinction, which the Common Law rejected, and to let a man define the extent of his own liability, a definition which the law has always reserved to itself. The liability is the Common Law ground work, and creates the partnership as to third persons. This exists in every joint undertaking without reference to partnership inter se. If cut down to partnership inter se, there would be no partnership, except, as the court thought, by contract or by holding out. But the Common Law also makes a partnership, either by doing an act, or by contributing property. 178 Pt. 2, Ch. I. The Test. §44. a. Holding stock, If bank unincorporated and not special partnersliip, not prima facies of partnersiiip. C, son of president of savings bank, having been its clerPc and bookkeeper, left widow and minor children. Guardian A sued Bet al. stockholders as partners for deposit. Charge: Defendants partners, unless tliey proved bank a corporation or limited part- oersbip. — Error. Widow real party on interest ; knew all about organ- ization of bank, and had access to books. A bound to prove partnership. Halstead v. Coleman, 143 Pa. 352; s. c. 22 A. 977 (i8gi). The charge was correct. There is no distinction between partners and any other joint debtors. The joint act was suffi- cient to create the liability ; if in trade, of partners ; if not in trade, of joint obligors. The accountability is primordial ; it underlies and enters into the relation, defining its nature and extent. If charged with an act the defendant does not save himself by crying out, " I am not a partner." He might as well shout: " I am not myself." A fortiori if the benefit right, or property is in one he is liable. Principal escaped liability because agent not a partner. B, who had previously employed C at a salary, to buy and sell cattle, agreed to advance $16,500 for C to buy, keep and sell cattle, which, while kept, were put in B's brand. Expenses payable out of capital advanced, the balance, if any, belonged to B. If profits, C to share them in lieu of salary. A joined B, as partner, in suit against C on note which C gave for pasture. — Judgment reversed, because no partnership. Buz- ard V. First Nat. Bank of Greenville, 67 Tex. 83 s. c. 2 S. W. 54 (1886). 6. Partner acting for a firm and for himself under a common designation prima facie charges the firm. B was managing partner for the firm X, and did business on his own account under the name of Y. B kept but one bank account, and habitually signed his check thus : " B, agent." A sued the members of X on a check so signed, calling them Y.— Firm name surplusage. The firm prima facie liable on check. Had the com- mon designation been employed only in the business of X, the form of the check would have concluded the firm, but now X might prove Y received the proceeds. Bank v. Dakin, 24 Wend. 411, N. Y. (1840). 7. No firm name. Partnership in farming and coopering. Presumption of 179 §44. The Test. Pt. 2, Ch. i. firin transaction. B C & D C were partners without a firm name. B C gave a note and signed it B C & D C. A & Co., the holders, sued and proved that he had previously given two notes signed B & D C. Defence: The note, by its form, is an attempt to pledge his individual credit. — Recovery. Instrument presumed a firm note, and designation of the firm sufficient. McGregor v. Cleveland, 5 Wend. 475. N. Y. (1830). 8. Partner may use his name and add Co. for co-partner. B, C & D had entered into partnership, but had not adopted a name. B executed a note in name of B & Co. A sued the partners. — Liable. If no name, B may bind co-partners by name of B & Co. Austin v. Williams, 2 Ohio, 61 (1825). 9. Between firms. A & Co. and B & Co. agreed to sell grain on joint account, making contracts for delivery at a future day, and dividing profits between them. Plaintiff sued B & Co. on contract made by A & Co., in their own name, but on joint account. — Members of both firms liable; contract being on joint account, need not be in joint name. Smith v. Wright, i Abb. Pr. 243, N. Y. (1854). Firm liable on commerciai paper given on firm account, though no firm name. B, in Rochester, and three others, in Albany, were partners. B conducted firm business at Albany in- his individual name, and the others traded at Rochester in name of C, an agent. Articles provided that no commercial paper should be given. B drew on C in A's favor in firm transaction, and C accepted. Partners in Rochester were sued as acceptors. — Defendants liable, without B, whose non-joinder was not pleaded. Prohibitions not binding on strangers. Bank v, Mon- teath, I Denio 402, N. Y. (1845). Firm liable on commercial paper given on firm account, though no firm name. B, in Troy, and C & Co., in Oswego, were partners, each trading for the firm in his own city, under their respective names. C & Co. drew on B in A's favor for firm account, though on separate credit. B refused to accept, and A sued B and C & Co. as drawers. — Recovered, though A took draft on C & Co.'s credit. Wright v. Hooker, 10 N. Y. 51 (1854). 180 PT. 2, CH. I. THE TEST. §45. §45. The liability does not depend upon the intention to assume the obligation. The consent of the parties makes the contract of partnership, and they agree, let it be supposed, that a partner shall not be liable. Now it is asked : How can he be bound without his consent, when consent is the groundwork of his liability? The question betrays a confusion in thought of a partner's rights with the rights of a stranger. The liability to a third person does not grow out of the parties' consent to be liable. They could never be liable to him on the contract of partnership. What has he to do with a contract be- tween the partners to which he is a, stranger? The obligation to him is independent of the partnership inter se, and is paramount to it. It is the performance of an act which creates a liability for the consequences, whether done by a single individual or by several. Each one engaged in the transaction is liable for the act, as if he were the sole principal. The contract of partnership admits that the partner is a principal in the business, and his liability attaches as a matter of course, because he is a principal. The undertaking carries with it the liabilities which arise out of the business, and they cannot be shaken off. The intention of a principal to limit the extent of his liability, or not to incur any liability in the business he undertakes, is against the law, which makes a man answer for all the consequences of his acts, and denies him the power to curtail his liability. A stipulation for limited liability i8i §45. The Test. Pt. 2, Ch. i. in the contract of partnership is like the intention cher- ished in the breast of a principal that he will not be liable for his agent's acts. How can the partners by their contract give away a stranger's right of redress. If the parties agree upon the constituents of part- nership, they could not deny the relation. They would be denying a proposition of law, that the con- stituents of a partnership should not constitute the relation. The intention of the parties bears upon the object they have in view, the action which they mean to perform. After the facts have been established, the inference to be drawn from them is a conclusion of law. The facts or constituents cannot be affected by the parties' intention or object in creating them. That is a motive, or purpose apart from the external acts, and does not enter into the province of law as an element of interpretation.^ The joint undertaking to transact business merges the partners into a firm. The joinder in trade consti- tutes partnership. If no subordination or subjection of one party to the other is proved, they are co-equals in the joint business. The authority to act for and represent each other in the common business results from the Law Merchant applied to the proprietors of the business. The moment two men engage in bus- iness, unless it is established that one is under the other, they are the masters of the business The act of either charges the other. There is no question of delegating authority to another. The law delegates the authority. Under- taking the joint business calls in the Law Merchant 182 Pt. 2, Ch. I. The Test. §45. and empowers each to act with the authority of all. No express authority is delegated, because the au- thority results from the undertaking by the Law Merchant. Mutual agency is a consequence of the relation ; it is not an antecedent. Nor is intention, as remarked, relevant. The joint undertaking is all the intention required. The subse- quent obligations follow from the joint act. No coun- ter-intention can prevent the consequence; the in- tention to be effectual should anticipate and prevent the original act : the law creates the result; not the parties. A capitalist and builder joining in a building operation could not prevent the effect of the joinder which made them principals in the business, by stipulating that they were not partners. The denial of partnership is inconsistent with the position taken by them as principals. The acts of the par- ties speak louder than words : Legal effect of agreement prevails against intention of tlie parties, even inter se. A & B bought an estate for building improvements. B fur- nished the capital, which carried interest at rate fixed by himself. A gave his experience and superintendance to the operation, and contri- buted 1-3 of his trade discounts. The financial management was in B's discretion, and his accounts could not be disputed by A. They agreed that the arrangement should be limited to the estate, improved for their mutual benefit, and should not be construed a partnership, although they shared the profits and losses equally. A brought a partner's bill for account.— B held a partner, because he had under the agreement a partner's rights and obligations, which were not taken away by the stipulation not to be a partner. iWoore v. Davis, ii Ch. D. 261 (1879). Constituents create partnersiilp in spite of parties intention. Land owners formed syndicate to sell and divide profits, each retaining his title. Syndicate paid expenses, and made commissions on sales of other lands.— Partnership. Lands contributions and firm property ; title held by each partner in trust for firm. Constituents established rela- tion. Parties' knowledge or intention foreign to issue. Chapman v. Hughes, 104 Cal. 302 s. c; 37 P. 1048 ; 38 P. 109, (1894;. 183 §45. The Test. Pt. 2, Ch. i. A corporation and a patentee joined and established a foundry for the manufacture of materials to supply the cor- poration. The parties' disavowal of a partnership did not neutralize the effect of the joinder and prevent a partner- ship. The result is a conclusion of law from the acts of the parties, and a partnership contract is not a public statute to repeal or abrogate the law. The legal inference of partnership is not negatived by the parties' inten- tion. A agreed with B, a corporation, to manufacture castings, B pro- vided foundry, at rental of $4,000, payable out of proceeds, and sup- plied capital for the business. B agreed to buy all castings used by the corporation from foundry at market rates, and to use A's patent car wheels ; A agreed to devote his labor and skill to the business, and to make over the exclusive right to manufacture and sell his patent wheels. The net profits were to be equally divided, and the arrange- ment to continue for 12 years. The net profits for the first year were $4,916, and $1,500 was reserved to pay employees. B excluded A from the management, and A obtained an injunction. B moved to dissolve, and denied A's right, by virtue of the agreement, to share in the man- agement. — Injunction dissolved, because answer averred a dissolution by mutual agreement, and then A's remedy would be the appointment of a receiver ; but B's denial of partnership did not negative A's equity, as partnership is an inference of law, and B could not deny the legal conclusion, even of the relation inter se. Van Kuren v. Trenton Loco- motive and Machine Manufacturing Co., 2 Beas. 302, N. J. (1861). Upon identical facts the Courts of New York and Connecti- cut render contradictory opinions of the law. Co-operation in business and admissions of partnership overcome by want of intention to be partners or mutual agents, and by failure to consult com- mercial agency. B & C, March 22, 1879, bought a patent right of D and jointly agreed to develope the patent by manufacturing and selling machines, to give D half the proceeds. C manufactured in Connecticut, and B managed business in New York. C manufactured trial machine, and July 1, 1879, B & C employed E at$i 75 a month for g months with option to renew to Oct. i, 1880. C employed F, draughtsman, and sent him to B. B embodied agreement with G to put up machine in his warehouse in a letter which he mailed to C. The machine turned out a failure, and Sept. 22, 1879, C stopped manufacture. B paid E $2,500, and paid other expenses. He drew a series of notes, the first, 184 Pt. 2, Ch. I. The Test. §45. Oct. 22, 1879, and signed them C & Co. (N. Y. case below held one afirm note). D, Nov., 1879, annulled contract. B, March, 1880, signed two notes to A for materials used in business. A sued B & C, but effected service only upon C. — Court found facts and pronounced them Insufficient to prove partnership. No mutual agency, nor intention to be partners. Admission in letters, postals, telegrams incompetent, because whole correspondence might contradict partnership. A should have ascertained especially through commercial agencies if firm C & Co. existed. No holding out. Morgan v. Farrell, 58 Conn. 413 s. c. 20 A 614, (i8go). Pacts of last case. Broker selling firm note must not only prove the part- nership and partner's authority, but also disclose his principal, the firm or verdict for him will be set aside. H, broker, sold to A a note dated Dec. 15, 1879, at three months for $2,800, signed C & Co. to B's order and by him endorsed. A sued H. Court left H's warranty of note's genuine- ness and H's disclosure of his principal to the jury. Court also admitted notes of former trial in evidence. — Error: Jury should have been instructed, i. That H warranted note's genuineness: In default of evidence. 2. That H did not disclose his principal. 3. Notes of previous trial incompetent. Meriden Nat. Bk. v. Gallaudet, 120 N. Y. 298 s. c. 24 N. E. 994, (1890). A was entitled to compel H to prove the partnership of B & C, and his agency for them in selling the note. H was on both horns of the dilemma: i. He was bound to establish the genu- ineness of the note. This could be proved only by making out B & C's partnership, and its right to issue commercial paper. 2. He was bound to disclose his principal, that is, C & Go's actual existence as a firm, and B's authority as a partner, to bind it by commercial paper as in the first point. Then he was bound to prove in addition that H acted Ln making the sale as the firm's agent. B acted, and assumed to act, only as a partner. The only one who could be a principal in the transaction was C & Co. H must prove both facts, and in the order stated. He must first prove B & C's partnership, and after having proved its existence, he must, second, establish his agency for the firm of C & Co. A could not complain of the charge of the Court, which re- i8s §46. The Test. Pt. 2, Ch. i. fused to instruct the jury that H warranted the note's genuine- ness. Though the Court's refusal was an error of law, the mistake did not hurt H. The verdict cured the defect of the charge. The finding of B & C's partnership established the genuineness of the note, and thereby anticipated and fulfilled the warrantry of title or genuineness, which A was entitled to exact. But although the note was proved to be genuine, and authorized by an actual firm, C & Co., yet the fact of H's agency for C & Co. was not proved. H was bound to prove that he acted as the agent for C & Co., and that he told A they were his principals. He did not meet this obligation, or submit any evidence on this point. The court erred in permitting the jury in default of evidence to guess that he made such a disclosure, and A was prejudiced by this mistake. The jury found that he disclosed C & Co. Had they not so found, the verdict would have been for A, for notwithstanding the validity of the note, A could not recover from H, unless he proved that he acted for C & Co., who were liable directly to A. The verdict therefore was set aside. §46. The law charges the principals in a joint transaction as if they had contracted with each other to perform it. How can the relation of partnership be effected, it may be asked, without intention as the original cause and the creator of the partnership ? If it results from a contract, and the parties must manifest their inten- tion by making a contract, how can they be charged 186 Pt. 2, Ch. I. THE Test. §46,. by a third person, except by proof that they have con- tracted to become partners in the business ? But is: the command imperative? Must there be a contract between co-principals, whether expressed or inferred from the facts, contemplating holding in embryo the obligation which a stranger is seeking to enforce, and will nothing short of a contract give legal expression to the liability? The law provides a remedy for the enforcement of the obligation upon the theory of a contract, although none in fact exists.' A joint con- tract served as the type and furnished the means for proceeding as if the parties had made a contract. It is a ^//as/-contract, raised by the construction of law. For an act done on behalf of several, the law charges all concerned in the transaction, whether known or not, without reference to any agreement, or absence of agreement, upon the subject of their liability.^ The law implies a contract in order to enforce the duty. The parties have joined in a transaction, and the law assumes they contracted to perform the act together, and then charges them for the breach of this imputed contract; which has nothing to do with the partnership contract. I. " There is a class ot legal rights, with their correlative legal duties, " analogous to the obUgatlones quasi ex contractu of the civil law, " which seem to lie in the region between contracts on the one hand " and torts on the other, and to call for the application of a remedy not " directly furnished either by actions ex contractu or actions ex delicto. " The common law supplies no action of duty, as it does of assufnpsit "or trespass; and hence the somewhat awkward contrivance of this " fiction (an implied contract) to apply the remedy of assumpsit where " there is no true contract, and no promise to support it." LADD, J., " Sceva V. True, 53 N. H. 632 (1873)- 187 §47- The Test. Pt. 2, Ch.i. 2. " The ground of the implied contract is the benefit drawn directly " from the use of goods or property purchased, which property has " been received immediately from the creditor in such a manner as to " create a privity of relationship between the debtor and himself ; and " what is true of one, holds equally good of any number of debtors." Article: "Criteria of Partnership," by S. D. DAVIES, 10 Am. Law Register N. S. 209 (1871). §47. If several withhold property, they are liable to the owner as if they had contracted to pay for it. A liability is imposed by law upon a man who with- holds personal property which does not belong to him, to pay an equivalent in value for it to the owner. The obligation becomes joint, if there are two persons who withhold the possession, and each of them is liable to the owner for the whole value of the property.' The act is a tort, but may become a contract by election.^ The owner waives the tort, and proceeds as if upon a contract." I. The liability ex delicto of wrong doers in thus stated by Hammond : " They are liable, each by himself ; since the entire damage sus- " tained was occasioned by each, each sanctioning the acts of the " others, so that by suing one alone he is not charged beyond his just " proportion. They are liable altogether, as are any number less than " the whole; because each is answerable for his companion's act; and " besides, if this were not allowed, not only would useless litigation be " incurred, the plaintiff might be reduced in his security to one offender, " since after a judgment obtained against one, he would be precluded 188 Pt. 2, Ch. I. The Test. §47. " suing, or continuing his suits against the others." A Practical " Treatise, &c., p. 85. Satisfaction the only bar to separate or Joint salt against co-tortfeasors. B, constable, attached C's wagon under writs issued by attorney for D et al., on the theory that C's sale of it to A was fraudulent.— A re- covered judgment against B, and also judgment against D et al. for the conversion. McAvoy v. Wright, 137 Mass. 206 (1884). B, constable, attached, for C, hay as D's property. A claimed the hay, and sued C for the conversion, and recovered for part. A sued B for balance. — Cause of action, satisfied by C, released B. West- brook v. Mize, 35 Kan. 229, s. c. 10 P. 881, (1886). Joint receipt charges both without reference to title. A assigned policy on his wife's life to B and C jointly, and on her death company paid them the sum insured by a check to their order. A sued B and C for amount. Defence : B's evidence that interests separate, which company acknowledged, but made check joint for its convenience. — Judgment. Speck v. Hetlinger, i S. C. Dig. 130, Pa. (1886). 2. The tort of a partner charges his co-partner only through and by means of the joint business (§24).* Since a tort of this kind has been confounded with a breach of con- tract,^ the damages recoverable for a tort or for a breach of contract have been assimilated/ and an election of either remedy follows as the result. a. Partner's fraudulent removal of stock from jurisdiction not ground for attachment of co-partner's separate property. A attached B's separate property on ground that B & C were fraudulently removing firm stock from the State. B denied fact and averred that if true, it was done without his knowledge. — Judgment for A reversed. Statute limited attachment to property of party to the fraud. Worthy v. Goodbar, 53 Ark. I s. c. 13 S. W. 216 (1890). b. A Series of Essays on Legal Topics, by JAMES PARSONS, pp. 50-5, 1876. t. Note to Johnson v. Stear, 109 Engl. Com. L. Rep's, N. S., 341 (1869). 3. Double proof for ^breach of trust against trustee-partner and against his firm, which use4 the trust fund. B, trustee for A, raised £15,000, which was put in the hands of B & C, solicitors, for investment in a specified mortgage. They misapplied the money to their own use, and became i8g §48. The Test. Pt. 2, Ch. 1. bankrupt. A, by substituted trustee, proved against joint estate, and also against B's separate estate for £15,000 and interest. — Allowed. Breacti of trust a tort arising out of contract of firm. Implied contract of firm on receipt of money, and of B, who undertooli trust. In re Parkers, 19 Q. E. D. 84 (1887) (?4i). Value of property, if converted, recoverable on Implied contract. B sold interest in mining claim to A, who furnished machinery, tools, and means for working the claim. The undertaking turned out unproduc- tive, and B relinquished the claim and equipment to A. Subsequently B and C ejected A, and took possession of the property. A sued them for its value. — Judgment for A reversed, because B was a partner, and could not convert his own property. Morgenstern v. Thrift, 66 Cal. 577 s. c. 6 P, 689 (1885). §48. A partnership as to third persons is the legal aspect of the relation at the present day. Partnership is ordinarily classified as: i, a partner- ship between the partners and, 2, a partnership as to third persons. The second class has been said not to be a true partnership, and has been termed in deroga- tion a quasi-partnership^ The principles of partnership were discussed prim- arily with reference to the partners, and only second- arily with reference to third persons. This method of treatment corresponds to the historical development of partnership, but is antiquated at tbe present stage of its progress. The method reverses the order of modern partnership law, which does not turn upon 190 Pt. 2, Ch. I. The Test. §48. the rights of the partners, but upon the rights of third persons who deal with the firm. The propriety of the designation depends upon the point of view. If contract is taken as the type of all transactions, the bargain made by the partners would be the basis of partnership, and creditors could not go back of the parties' word. On the other hand, if things are more important than words, and a man is judged rather by what he does than by what he says, the Common law construction of his action will furnish the type of partnership. In law as in morals a man must answer for his actions, and, if they disclose a joinder with another in trade, a partnership liability will result. The consequences will fall upon those, who, no matter under what form or disguise, did the act. The disguise will be stripped off, and the naked fact exposed. The form of the contract will be merged in its legal effect ; the veiled proprietor will be iden- tified by his interest in the property. The denial of partnership will be disproved by the fact of a joinder in trade. A partnership as to third persons arises out of the defendant's action in conjunction with another. The liability exists, and is universally admitted, if he acted alone, and it equally exists if he acted with another.^ The obligation, raised by construction of law, is but an application of the fundamental principle of a man's liability for his acts applied to two or more when they join in the act. This joint liability for acts in trade-transactions is called a partnership as to third persons. In recent times, under the freedom of contract, the 191 §48. The Test. Pt. 2, Ch. i. partners may make any medley of partnership they please.^ The provisions of the articles constitute a domestic law for themselves.* It is only when the rights of third persons are at stake that the effect of the domestic arrangement must coincide with the legal structure of the relation.^ 1. LINDLEY on partnership, 25. 2. Joint does not disprove lodividual contract. A sued C in Indebitatus assumpsit, and offered in evidence: Agreement August 7th, 1857, to sell B a canal boat for $300 and cost of repairs, endorsement on contract of payment by B of $180, and October 4th, 1858, of $250, by C, who agreed to join with B in the contract, and to pay A the full amount. Re- jected. — Reversed. Competent, C could not defend on account of B's non-joinder, as he failed to plead it in abatement. SHARSWOOD, J. : " Nor does it matter that the declaration is upon an individual contract. " A joint contract is not at variance with the count. It is still the under- " taking of the defendant in solldo." Collins v. Smith, 78 Pa. 423 (1875). 3. A partner may indemnify his co-partner against loss, and give him all the profits.* The agreement to indemnify a partner has been thought to lack consideration, and to be inconsistent with partnership.'' But the contract of partnership has a consideration, and the special provisions are sustained by the general, consideration." The stock illustration of an impossible partnership, stated by the civil- ians, would not be an invalid partnership, at the common law, between the partners. But the partner who assumed all the debts, and received none of the profits, might be a principal in the business (§74), and if he had more than one co-partner, his motive might be to establish one co- partner in business. It would be a gift of his credit and services to that co-partner, and his share of the profits, increased by the gift, would be the consideration paid by the third co-partner.'^ a. Partner may indemnify co-partner against loss. A, author, and 6, pub- lisher, agreed that profits of every edition should be divided equally, after deducting 10 p. c. for commissions and as indemnity against 192 Pt. 2, Ch. I. The Test. §48. bad debts. B assumed the risk. A brought bill to recind, averring an agency. B claimed an irrevocable license. — Decree for dissolution. A partnership, though B stood the whole loss. Reade v. Bentley, 4 Kay & J. 657 (1858). A partner, though salaried and Indemnified by a pledge of the profits, should be joined as co-plaintiff. A & B were in partnership as solicitors. By the articles, B stipulated against any liability for looses, and had a lien on the profits, to indemnify him if charged with any losses, and bargained for £300 a year out of the profits, a sum equal to i-; the then profits. A & B sued a client for services. Plea: B not entitled to recover as plaintiff.— B rightly joinedi The fee belonged to both until the accounts were settled and the sum divided. The fact that B was indemnified did not take away his right to the fund which was pledged for his security. Bond v. Pittard, 3 M. & W. 357 (1838). Partner need not share loss. A & B, upon dissolution, submit accounts to arbitration. Award : A to receive no compensation for services, nor pay for any losses during the years when no profits made. A sued to enforce award. — Judgment. Partners competent to agree that one should bear losses, and presumption that award based on such agree- ment. Cochran v. Bartle, 91 Mo. 636 s. c. 3 S. W. 854 (1887). b. Dictum : partner's indemnity of co-partner nudum pactum. A advanced the capital. B furnished the skill-and did the work. Profits divided equally. B indemnified A, and gave collateral. A claimed reimburse- ment in account. Arbitrators ignored guaranty. — Award conclusive ; but guaranty nudum pactum, and A charged with 1-2 the loss. Brophy V. Holmes, 2 Molloy, Jr., Ch. i (1828). c. Managing firm business but an indication of membership. B furnished D & C, partners, brewery, machinery and capital to carry on the busi- ness, stipulating for $700 a year for the use of his property. He bought and sold for the firm, and paid the debts from the proceeds of the business. A sued B, as partner in the firm of D & C, for the price of goods. Defence: No partnership, but B's agency and loan a benevolence to D & C, his relatives. B informed A of this at the time of purchase. Court below rejected evidence of motive.— Re- versed. Evidence competent for jury. Agency but an indication of B's membership, and rebutted by proof of a motive consistent with the acts. Tracy v. McManus, 58 N. Y. 257 (i874). 4. Loan, with Interest, and a share in the profits does not make partnership Inter se. A lent B £20 to start in business, and he agreed to pay 5 per cent, interest, and subsequently 1-8 profits in addition, by monthly in- stalments. A brought a petition to put B into bankruptcy. Answer: 193 §48. The Test. Pt. 2, Ch. i. Loan usurious or creditor a partner, and account necessary. — A's right as petitioning creditor sustained. Striking monthly balance ascertains debt, and would make partner a creditor for it, although partnership continued, but as no intention to stake money in the business, or re- nounce right to repayment in any event, A was a lender, and not a partner with B, except as to third persons, and B " could not, after borrowing money of A, turn round upon him, and say, you are my partner by operation of law, and therefore 1 will not pay your debt." Ex parte Briggs, 3 Dea. & Ch. 367 (1833). Consideration for a loan may be a share in business and profits, and yet loan recoverable as a debt from co-partner. A lent B £59 for 1-3 interest in his inventions and in the profits of manufacturing and selling them. B agreed to repay the loan in any event. A sued B for the advance. Defence : A was a partner. — Recovered. Although the consideration for the loan was a share of inventions and profits, the contract to repay at all events prevented the loan from becoming partnership funds. Elgie V. Webster, 5 M. & W. 518 (1839). Holding out does not make a partner in interest. A sued B for price of merchandise. He pleaded non-joinder of C. A called C as a witness, who, on his voir dire, testified that business was carried on in name of A & C, and that he accepted" drafts for firm, but had no share in the business as a partner. — Competent, for not a partner in interest, though he held himself as a partner. Parsons v. Crosby, 5 Esp. 199 (1805). ;. Sharing profits for loan of credit and trouble, no partnership inter se. B, not having sufficient credit, induced A to buy goods with him for an adventure, and agreed to give him half the profits. The sale was made to both, and A, who had been compelled to pay the price, sued B's executor to recover it.— Recovered. Though a partnership as to third persons, none inter se, because profits merely compensation to A for his trouble and credit. Hesketh v. Blanchard, 4 East. 144 (1803). 194 P.T. 2, Ch. I. The Test. §49; §49. It is the business wliich invests the partners with cora= mercial perogatives, and, unless engaged in a business, the principals in a joint transaction, although liable for the act, have no partnership powers.' A joint purchase makes the purchasers principals, and each liable for the whole price. The contribution charges the solvent buyers for the insolvent's quota of the price.^ Why are not the buyers partners in the purchase? They join as principals in the transaction. The answer is : The Common law does not admit a partnership in buying.* As trade consists of buying and selling (§7) ; the transaction does not come within the province of commerce, and is not governed by the Law Merchant (§4). The joint purchase is left to be interpreted by the tradition of tenures, and holding property in common does not convert the possessors into partners.* The purchase is presumed to be for division or for holding in common. The merchandise, though joint, is not in trade until put in movement by the co-owners. Unless they direct its being used in business, the property remains stationary. Neither owner has the power to disturb the normal condition, which, at the Common law, is rest or tenure. Trade enlarges the feudal holding to dominion, which includes sale, and with that power of disposition, carries every other power. The joint owner, apart from trade, has no power implied from his ownership, except for the preservation of the joint 195 §49- The Test. Pt. 2, Ch. i. property.® It is trade which creates the power to sell and also to buy, and, by so doing, charges the co- owner, who becomes a party to the contract through his estate or property. In other words the property cannot be devested or vested without making him. a party, implied though not expressed, to the contract. He then becomes bound by every transaction in the firm business. The purchase must be joint, or the point does not present itself. The purchase by several may be joint in form, but separate in interest. The effect is a separate purchase by each. If the purchase is by one for several, he could not charge each principal for more than his quota. The agency was limited to buy- ing a specific amount without any joint purchase by all.« I. Twenty-three underwriters, who had insured a ship, which was abandoned by the owner, took the vessel, each settling for his proportion of the risk with the owner. They sold the ship to divide the loss. A joint sale was not the purpose the insurers ha.d in view when they took the vessel, but that was merely an incident. They were com- pelled to buy the ship, not as an article of traffic, to make a profit by selling it, but to get rid of it and divide the loss.* a. Joint owners. A insured cargo ; and B & C, with 22 others, as sepa- ■ rate underwriters, insured ship. Ship captured by enemy, and aban- doned by owners to underwriters, who paid as for total loss. Captain ransomed ship with portion of cargo, and, out of proceeds of residue, sold at port of destination, repaired ship. A, paying insurance on cargo, was subrogated to owners' title. He sought to charge B & C, as partners, for amount expended in repairs. — Liable only for quotas as co-owners. Not partners, though they designed to sell ship, because ig6 Pt. 2, Ch. I. The Test. §49. not voluntary purchasers, but owners by necessity. United Ins. Co. V. Scott, I Johns, 106, N. Y. (1806). A joint purchaser, bound to pay the whole price, could not aclcnowledge it by accepting for bis co-purchaser the seller's draft, though acceptance is less than payment. B & C bought land of D,, who, to pay off A's lien, drew upon them for price in A's favor. B accepted. A sued on draft. Defence: Failure of consideration as D no title. — Judgment for A reversed, because, at best, not being holder for value on account of a debt past due, he took subject to acceptor's defence against drawer. Schaefferv. Fowler, in Pa. 451, s. c. 2 A. 558 (1886). 2. A joint purchase charges each buyer for the whole price. The contribution among the buyers is an adjust- ment made by equity of the consideration in proportion to their interests. Joint adventure a partnership, and, though quotas specific, liability in addition for insolvent party's quota. A, and four other firms, agreed to take 1-5 interest each in 1200 tons of sugar ordered by B. As bills would be drawn on B, he should have power of sale, though each party undertook to pay his quota of drafts, and assumed 1-5 of the risk. Adventure resulted in a loss, and two firms failed. A, who paid the bills, ' sued the two solvent firms for contribution. Defence : Each, liabje for only I-; of loss. — Contribution enforced against each for 1-3, because a joint venture of the five, which rendered solvent parties liable for quotas of insolvent parties. Mclnroy v. Hargrove, 16 L. T. 509 (1867). 3. The books speak of a partnership in buying, and a joint purchase would naturally make the purchasers partners, as they are co-principals in the transaction ; but the feudal tradition of holding property yielded as little as possible to the commercial principle, which makes it an article of traffic. The transaction not being within the technical definition of trade, was excluded from the operation of its laws. 4. Purchase of interest no partnership if division intended. A bought 1-6 interest in cotton owned by B et al., en route for N. Y., to be divided or' sold on arrival, None was ever sold, though part was divided. B sent the rest to his N. J. factory. A sued for conversion. Defence : Part- nership. — Recovered. Agreement alternative; partial division of cot- 197 §,5.0; The Test. Pt. 2, Ch. i. ,, ton a determination against a partnership. Ward v. Garnet, 6 Duer 257 (1857). 5. Gibson V. Lupton, g Bing. 297 {1832) §7, n. i. No authority to handle merchandise implied from co-ownership. A sued B & C for pacPting and hauling merchandise at B's request. C denied partnership. Proof : Joint ownership of goods. — Judgment for G. No authority implied from co-ownership. Miller v. Vermurie, 7 Wash. 386, s. c. 34 P. no S.; 35 P. 600 (1893). 6. Hoarev. Dawes, i Douglas, 371 (1780)57, n. 3. Coope V, Eyre i H. Bl. 39 (1788) ?7, n. i. §50. Though the existence of a partnership inter se is deter- mined by the intention of the parties, its effect is to make them principals. Where there is. a contract, what the parties intended is ascertained by the ordinary rules of construction. What is the real nature of the undertaking? This is the fact to be established. Does the undertaking pro- vide for a transaction, or a series of transactions, in reality, on behalf of all ?' If a partnership is intended by the parties, no disguise of the operations under any other relation will prevent the law from attaching , to the members all the incidents of partnership, and the chief incident is liability as a principal. The law does not determine who are partners inter se. The parties create their own relations. The law simply imposes upon the parties an adherance to the positions which 198. PT. 2, Ch. I. THE Test. §50. they have taken, not in semblance, but in fact (§44. n. I, and §45'), and charges them as principals.^ The controversies about the existence of partner- ship arise from inattention to the prohibition by law of piecemeal partnership, except so far as it is limited to the partners themselves. The relation is a well- known association with definite traits and results. The freedom of contract does not permit the parties to remodel the structure of the partnership relation, except for themselves. They are powerless to alter its constituents as to strangers; and when they do come into conflict with third persons, they are com- pelled to accept or reject the status of partners asl an aggregate. The confusion arises from the mistaken belief of the parties, who think they have the right to contract for any portion of a partner's attributes, with- out being bound to assume the rest of them, if they are expressly excluded by the contract. The only diffi- culty for the courts is to decide whether the part con- tracted for is sufficient, or not, to carry the whole.^ I. The attribute which distinguishes a partner from all who are not partners is undertaking a business and being a co- proprietor of it.* The business, if not carried on by each partner, is, at least, carried on for him. it is his right to have the business conducted as he planned and started it, although he should take no part in its control or manage- ment. The fact that the business is carried on by his will, and for his benefit, shows that he is a principal. Being a proprietor, it is immaterial whether he participated in the management or not, as, for example, a dormant partner.^ Although, in his case, the impulse was im- parted at the outset, the original force continues and sustains 199 150. The Test. Pt. 2, Ch. i. the business. When withdrawn by the demand for an account, which involves a settlement of the business, the partnership comes to an end. The power which created and can terminate the relation perpetuates it by permitting it to stand. a. Lease a partnership if lessor and lessee CD'Owners of business, B let C hotel for 3 months at $20,000. Terms: i. C devote and confine him self to business. 2. B free access at all times to premises. 3. B 80 per cent, net profits In addition to rent. 4. Besides current expense, account charged, insurance, water and sewer rent, license fee, interior repairs and salary of B's appointee who should keep books, be cashier and pay debts. ;. In settlement C 20 per cent, net profits. 6. On 24 hours' notice B might annul agreement and take sole and exclusive posses- sion. 7. C Exclusive control and management of business during agree- ment, but if annulled should transfer license. B not liable for busi- ness or debts of C. A sued B's representative. Defence : Rent appor- tioned ; fixed for use and occupation ; precarious for peculiar business. — Judgement for A. Apportionment after thought ; but, direct or indirect/ terms import partnership "in which the parties are joint owners, and " in which they share as proprietors." "If it" (the agreement) "is " evidence of the intention of the parties to become joint owners of the " business to be carried on, we need not consider whether they became " partners against their will by operation of law." IWerrall adv. Dobbins, i6g Pa., 480 s. c. 32 A 578 (1895). b. A dormant is the common law type of partnership an4 embodies its constituent elements, which are: i. The destinaton of the stock, which involves control, and pre- vents divertion to another object. 2. Accounting for the disposition and management implied by such destination. 3. Partner's agreement to devote himself to the manage- ment of the business and carry it on for the dormant part- ner. 4. Sharing profits as the fruits or increment of the contribution. Plaintiff may sue dormant, on contract with ostensible, partner. B, timber broker, suggested to C the purchase of a cargo of timber from A. The invoice was made out to C, and B drew on him for the freight, which C paid. A sued B & C, as partners, for the price. Some evi- dence of joint shipment. Objection : Contract by C— Plaintiff might Pt. 2, Ch. I. The Test. §50. show B was interested in the contract, as a dormant partner. Ruppell V. Roberts, 4 N. & M. 31 (1834). 2. Sharing profits, with absolute control of business, makes a partner. ' B, owner of a mill, agreed with A to manufacture cotton. B was allowed £300 for rent, and 5 per cent, for the capital, which was all advanced by him. A had entire control and management of the business, and received f i;o a year and i-; profits. The book keeper rendered account to both, and A agreed to engage in no other trade. B expelled A, who sued to be reinstated as a partner. — Reinstated. A's absolute control of the business, and his direct sharing the profits, showed the parties' intention, that he should be a partner. Greenham v. Grey, 4 Ir. C. L. 501 (1855). 3. When the arrangement is brought before the court, the law interpretes the provisions, in order to give effect to all. If inconsistent with each other the general purpose controls the minor provisions. If the bulk or greater part of the clauses showed an intention to make a principal, the rest of the clauses would be over come and disre- garded. A loan, if a cover for a contribution, charges the lender as a partner, B & C agreed to raise for a business, by contributions 2-3, and by loans 1-3, of the capital, which was divided into 60 shares, the loans to be made under 28 & 29 Vict. c. 86. A loan admitted the lender to the rights of a contributor, and entitled him to share the profits in propor- tion to his share in the capital. He could compel B & C to conduct the business according to the deed, to exhibit periodical accounts, and per- mit him to inspect the books. If he became bankrupt, they were to pay him off, and to refund his loan at termination of the partnership, unless on a settlement his share of losses equalled the loan, though he was not liable beyond it. B & C failed, and A, the holder of a draft, sued D, who took shares by way of a loan, as a partner. — Liable, as a dormant partner. The lending a pretence to conceal partnership, Pooley V. Driver, 5 Ch. D. 458 (1876). Sharing profits indefinitely, and also losses until 1-2 advances lost, and option to reclaim balance exerted, make a partner. A, by 28 and 29 Vict, c. 86, put £10,000 in a firm, under articles which stipulated that B & C should be partners for three years, a period subsequently renewed ; but that A should not be a partner. The £10,000, with such advances as any party should make, constituted the capital, which carried 5 per cent, interest. A took 1-4 the profits and losses, the balance was 201 §5o. The Test. Pt. 2, Ch. i. divided between B & C. Periodical accounts were exhibited to A, wtio tiad option, if his £10,000 was reduced 1-2 by losses, or if either partner died, to dissolve partnership and become liquidating partner, or let surviving partner continue the business and divide deceased part- ner's share with A, though, if he died, his executors were not to with- draw capital until expiration of term. He had right to sell out, and B & C the right to pay him off. They failed, and A offered to prove for £6,000, subsequently advanced by him, and interest. — Rejected, because A was a dormant partner. He shared profits indefinitely, though his right to withdraw capital when reduced to a moiety by losses, made him share them only to a limited extent. He had control over destina- tion of his capital. B & C were not his debtors, and he could reclaim but a portion of his advance. Ex parte Delhasse, 7 Ch. D. 511 (1878). Advance, coupled with partnership privileges, makes lender a partner. B advanced C, for his contemplated business, £500, stipulating, i, that C should repay the loan within 48 hours after demand, and, 2, until pay- ment, ; per cent, interest, and, 3, in addition to interest, a sum equal to x-2 the net profits of the business, less a salary of £4 a week for C's management; 4, that C should devote his whole time to the business until repayment ; 5, that he should keep books of account open to B's inspection ; 6, that a half yearly account and valuation should be made by C, at his expense, for B, and, 7, that C should furnish B every facility to verify the account. A sued B as a partner. — Liable. Act 28 & 29 Vict. c. 86, s. I, enables lender to take a share of profits without on that account alone being held a partner. But the sharing is not excluded as a constituent when combined with other stipulations. Clauses i, 2 and 7 indicated a loan ; 3 and 4 a partnership, and 5 and 6 either a loan or a partnership. Froude v. Williams, 56 Law Times Rep., N. S. 441 (1887). Comment, 83 Law Times 92-3. Nor do the French permit any disguise of a partnership. A loan with a partner's rights makes lender a partner. A, prevented by his office of sheriff from engaging in commercial business, lent 3,300 francs to B, to deyelope a quarry. An equal amount was contributed by B, and also by C. If the partnership continued ten years, A could take 1-3 the capital, in the interval he shared the profits in lieu of interest equally with B & C, had the right to inspect the books, advise and vote on partnership questions, prevent liquidation or dissolution, and, upon its happening, he had 1-3 of assets on account of his loan. A took part in managing the business, and dealt with others as partner. —In the liquidation, A must be treated as a partner. Like his co-part- ners, he must bear the losses as he shared the profits, in proportion to his loan, which was a contribution. Societe de I'Isere, ; Reyue des Societes 266, (1887). 202- Pt. 2, Ch. I. The Test. §51. §51. Property is the medium of partnership, and partners are proprietors of the stock. As trade consists of buying and selling, its subject- matter is merchandise. Without property there could be no trade. Property, as the medium of partner- ship acts and the substance of its transactions, is the element in which the partners live and move and have their being. "Capitale est fundamentum sodetatis!"^ Speaking of partners becoming impoverished Vin- nius explains how this destitution ends the partnership: " Nam cum sodetas contrahitur bonorum in commune " quoerendorum causa non magis bonis sublatis sodetati "locus esse potest, quam sublata persona socii* * Non " puto autem, quod hie traditurde dissolutione sodetatis " ob omissionem bonorum, locum habere eo casu, quo " nihil pecunicB in sooietatem collatum est."^ A principal in the business means a proprietor of the stock ; one who, by virtue of his dominion, buys and sells the property of the firm.^ If he is invested with the prerogative of dominion, although he has, in fact, no title to the property, he is none the less assumed to be a proprietor by those who deal with the firm (§4, §2^).^ The domestic arrangerhent be- tween the partners does not affect the position which is created by the nature of trade. Sharing the profits and Ipsses of a business, if not by co- owners, forms a distinct class of association in the Civil law, 203 §51. The Test. Pt. 2, Ch. i. called association en participation, and is contrasted with partner- ship, which is a sharing by co- proprietors. ^ By the Com- mon law, the sharing of profit and loss by proprietors iden- tifies them with the business, and being jointly interested in the business, they are partners. The Civil law does not judge the party by his interest in a transaction, but charges him only upon his avowed contract'' The undisclosed principal not being liable under that system when discovered, the cases in which he escapes liability are grouped under the association en participation. ° a. The dormant, at the Civil Law, would be a partner in par- ticipation. He would share the profits and losses, but not be liable to third persons, nor entitled to sue them. The right would be in the active partner, who would be the only person to deal with. No one but the party contracting is bound. The proprietor or principal is ignored. The contractee must seek his redress from the contractor, and he, in turn, must look to the one infested for contribution. There is no undis- closed principal or dormant partner, who can sue or be sued. " Cassaregis, dont I'opinion est si puissante en droit commercial, fait " aussi una difference sensible entre la participation et la societe: les " participans ne lui apparaissent parcommede vraisassocies. Etpour- " quoi? par le motif donne pas Deluca ^ parce que las participans ne " sont pas cosaignaurs de I'affaire : ' Non sunt socii, neque in lure " ' formali negotli considerantur condominl ; sed solum sunt participes.' De " la crette conclusion: ' Maxima est differentia inter socium et partlclpem, et " sic diversl in lure producuntur effectus, quorum prxcipui sunt, ut partlcl- " pes non teneantur nisi ad ratam capltalis pro quo participant in negotlo; " neque Ipsl agere possunt contra debltores socletatls, neque convenlrl " valent a credltoribus socletatls.'" TROPLONG, des Societes, h. " Ne peut constituer qu'una association en participation, et non " une societe en nom coUectif qui serait nulla pour defaut de publica- " ti'on, la mise en commun d'operations commercialas, quel qu'en soit " I'objet, entre divers commercants, si chacun des intaresses agit en " son nom seul, sans reveler aux tiers avec lesquals il traite qu'il " represante d'autras interets que les siens propres." ROUSSEAU, " Societes commercialas, §1736. 204 Pt. 2, Ch. I. The Test. §51 " D'abbrd elle est occulte, essentiellement occulte. Quel que soit " son objet, si elle se manifeste au public, elle n'est pas une partici- •' pation. * * des I'instant qu'elle ne reste pas concentree dans des " rapports interieurs, elle est une societe collective ; le nom de par- " ticipation est menteur, il ne lui appartient pas." TROPLONG, des " societes, ?4g9. " II fut enfm reconnu que le caractere essentiel et dominant de la " participation etait d'etre occulte, de ne point se manifester aux tiers, " de se resumer dans un compte de benefices ou pertes entre les " associes." VAVASSEUR, des Societes, ? 31;. c, "Premiere combioaison. Un navire arrive d'Amerique a Bordeaux, ' " charge de marchandises. Un negociant de ce port envoie a son cor- " respondant de Bayonne le detail de la cargaison et lui propose " d'acheter avec lui une partie de cafe, qui, suivant toutes les appar- " ences de la place, pourra etre revendue avec de grands avantages, le '" priant de lui faire connaitre, en cas d'affirmative, pour quelle part il " desire entrer daris cette speculation. Le negociant de Bayonne " repond qu'il accepte i'affaire pour un tiers, et qu'il entrera dans cette " proportion dans les profits et pertes. La-dessus, le negociant de " Bordeaux achete la marchandise en son nom, et par-la se forme une " association en participation, que I'on appelle aussi compte en particl- " patloa, parce qu'elle se resout en un compte entre les deux negocians. *' Dans cette position, 11 est clalr que le negociant bordelais, qui aura " achete du maitre du navire la partie de cafe, sera seul oblige envers " lui ; le negociant de Bayonne, au contraire, n'aura contracte, aucune " obligation ; et si le Bordelais vient a faire faillite, le vendeur n'aura " pas de recours contra son participant. Deuxieme combiaaison. Je " me suis rendu adjudicataire de la ferme de I'octroi d'une grande "viUe; mais, pour me procurer des resources dont j'ai besoin, j'ad- " mets plusieurs capitalistes a participer, avec moi, aux profits et " pertes, moyennant qu'ils me fournlssent des fonds jusqu' a une cer- " taine somme convenue. Du reste, cette participation doit demeurer " inconnue ; je suis seul oblige comme fermier de la ville ; tous les "actes sefonten mon nom. Cinquleme combinalson. On trouve en- " fin la simple participation dans I'espece suivante. Deux ou trois " marchands, voyant que le ble est cher en France et bon marche a " Odessa, conviennent que Pierre, I'un d'eux, ira dans cette ville pour " faire un achat considerable de tant de sacs de froment, et pour en- " voyer ensuite ces grains dans le port de Marseille a Joseph, autre *' participant, charge d'en faire la revente. Du reste, comme il ne " s'agit que d'une seule affaire determinee, ces marchands ne pren- " nent pas de raison sociale. Un seul achete ce qui est convenu; un 205 1 51. The Test. Ft. 2, Ch. r. " autre revend seul, et rend compte a ses associes, anonymes pour le " public. Ces deniers ne sont pas engages envers les vendeurs des " froments; ils n'ont pas agi collectivement. Celui-la seul qui a paru " a contracte des obligations; les tiers ne connaissent pas lesautres " etne peuyentde leur chef les fechercher." TROPLONG, des Societes, ?482-3, I485, ?488. The French cases are collected by ROUSSEAU, des Societes, ch. Xll. " Le participant qui agit n'est pas necessairement, " comme dans la societe collective, le mandataire de celui qui n'agit "pas. Presque toujours I'affaire est sienne; jl opere en droit soi, " comme dit Savary, et alors on ne peut le revoquer; car ce serait " vouloir lui enlever le domaine de sa chose. Le fermier de I'octroi "qui a des participans, le negociant de Bordeaux qui achete une portion " de cafe de compte a deml avec le negociant de Bayonne, le marchand " qui va acheter, du ble a Odessa, tous font leur affaire propre : s'ils ont " des associes, cest pourpartager les gains et les pertes, mais pas pour " communiquer la propriete meme de I'operationi Cependant, 11 peut " aussi arriver que le participant actif soit le mandataire de I'autre " pour condulre a fin I'affaire dont les resultats doivent etre partages. " Si Pierre, qui va partir pour le Levant sur le navire I'AjaXj est " charge par Paul d'operer a Smyrne, de compte a demi, la vente de " certaines marchandises qu'il lui confie, Pierre joue, dans cette societe " en participation, le role de mandataire de Paul." TROPLONG, des Societes, §503-4. 1. Rota decis, 240 N. ii, part 2 Cor. Kaunitz. 2. 3 Vinnius Tit. 26, 8. Whether parties meant to acqnire profits through title to stock, or apart from its ownership, for jury. A sued B & C. C mortgaged property to' A as security for B in furniture business, receiving for this 1-3 its net profits. Charge: C, partner. — Reversed; for jury. Code: "A joint " interest in the partnership property, or a joint interest in the profits " and losses of the business constitutes a partnership as to third persons. " A common interest alone does not," S, 1890. Code does not change the law, but is explained in precedent relied on as authority for its con- struction thus; " If the interest is the interest of an owner, if there be a " joint seizure, if the person whose interest is in question, has a right " as such owner, to dispose of the profits, then there is a partnership, if " the parties be seized per mi et per tout. If one may approveof , orcon- " trol the profits as much as the other, then there is a. joint interest. " But if the party whose interest is in question have only a common " interest in the profits with the other; that is, if he have rio title " jointly with the other; if his position be that of a mere employee, " with no right of control as owner over the profits, but with only a 206 Pt. 2, Ch. I. The Test. §51. " common interest in them, that is interested in common with the other " in their increase or decrease, because they measure the amount of his " wages, then he is not a partner." Phillip v. Trowbridge Furniture Co., 86 Ga. 6gg s. c. 20, S. E. 4 (1893). 3, If profits shared as proprietors, joint action ties. A & C shared profits of purchase and shipment of cotton. A sued both. — Charges sus- tained, that parties' intention was not controlling, but a joint interest would give a joint cause of action. Stevens v. Gainesville Nat. Bank, 62 Texas 499 (1884). Baying iand for capitalist with half profits of sale, a partnership. By oral agreement, A was to furnish money, with which B was to buy land, taking title in A's name. A received for his capital 10 p. c. in- terest and half profits from sale of land. A brought account against B. — Account lay. A & B partners. Richards v. Grinnell, 63 Iowa 44 s. c. 18 N. 668(1884). Proprietors sharing profits are partners. A undertook to look up and bid for desirable lands at tax sales, to procure deeds from the State, and to put title ii) B ; who agreed to furnish money for the purchases, and to hold title for both. They were to sell the land and, after repaying B his advances, share the proceeds. A brought account ; B demurred. — Decree. Joint owners of land, each exerting the powers of proprietors and sharing the profits of aggregate transactions. Hunt v. Erikson, 57 Mich. 330 s. c. 23 N. W. 832 (1885). Sharing profits and losses by co-owners, at least In part, makes joint busi- ness. B gave C the use of $4,000 for 1-4 interest in a patent, to be repaid solely out of first profits, without recourse to C. C, the sole and salaried manager, was entitled to retain 1-2 of B's profits until they amounted to $15,000. They agreed not to be partners, but co- owners. C rented a store, and signed the lease as president of the "C"Co. A sued B & C on the lease for balance of rent. — Recov- ered. Sharing in profits, with a limited share in losses, makes a busi- ness carried -on for joint benefit. Manhattan Brass and Mfg Co. v. Sears, 45 N. Y. 797 (1871), reversing i Sweeney 426. 4. The control as if owner and sharing profits. A owned saw- mill and timber ; B conducted business, receiving 1-3 profits. B paid individual debt with timber from mill. A sued creditor in assumpsit. He objected non-joinder of B.— Non-suit, because the control, with services and share in profits, made partnership. Dob v. Halsey, 16 Johns. 34, N. Y. (1819). Temporary proprietorship sufficient for partnership. B, owner, executed deed in escrow to C, D et al., for half interest in a mine, to be delivered 207 §51. The Test. Pt.2, Ch. i. . on payment of price within go days. E, manager, bought tools and supplies for worthing the mine, and sued C, D et al. for price. Defence of C & D : Attorneys employed to secure property and interest given for services. — Recovered. Partners in working mine, though not pro- prietors. Manville v. Parks, 7 Col. 128 s. c. 2 P. 212 (1883). Dealing with the title for the purpose of gain shows a part- nership inter se when the nature of the business excludes the partners from any beneficial interest in the property itself. Exerting the functloa of proprietors and sharing the profits malce partners in a single venture. If partners brokers for sale, and sale becomes imposs- ible, a partner may buy for himself. B, having an option to sell 4-; of a mine, and A, the agent for sale of i-;, agreed, in case they effected a sale of the lode, to divide the expenses and share the profits between them. The option was extended to December 10, by putting up a forfeit of |i,5oo. C, the only prospective purchaser, had forfeited $2,500 to A & B by his failure to purchase within a limited time. At the last moment before the option expired, but after the negotiation with C had failed, B, without A's knowledge, advanced the price |i7,odo for 4-5 and $3,000 for 1-5, and took title himself. The forfeit of $1,500 reduced the cash paid for 4-5 to $15,500. A promised B $1,500 out of his profits, and induced B to give C five days additional time, but C failed to purchase. Question whether advance of $1,000 by B to owner, when extension obtained, was out of the $2,500 firm assets or out of his separate property. A brought bill for 1-2 interest of mine and its product. — Bill retained for account of assets or A's share of $2,500 less $1,500, that Is $1,000 less expenses. Partnership to effect sale of property belonging to others, without any interest In the title. B, in buying, did not represent the partnership, for it could not outlast its object, which had ceased to exist. The $1 , 500 was saved to firm by B's purchase and the extension of time for C renewed the business. At best, the $1,000 was used, not to sell, but to buy, the title, a purpose foreign to the partnership. Kayser v. Maugham, 8 Col. 232 s. c. 6 P, 803 (1885). 208 Pt. 2, Ch. I, The Test. §52. §52. Sharing the profits by the proprietors of the stock con= nects the share=takers as principals, through the medium of property. The phrase, sharing profits 'as profits,' attempts to say that the title to a share of the profits depends upon a corresponding ownership of the firm stock-. As property is at the owner's risk, a loss of it falls upon' him. Dividing the loss is the counterpart of sharing the profits. He takes the benefit, and he bears the burden of ownership. To a dealing with property, as a means of gain, correspond the liabilities incurred in the business. If profits are treated as the increase of property made by trading with it, the share-taker would be considered a proprietor, and suffer any loss caused by the transactions as a de- crease of his property. It was upon the property- theory that sharing the profits was conclusive of a partnership. Sharing profits shows that the title belongs to the participant. By virtue of his ownership, he takes the fruits of his property. This is the original doctrine and, though it has been misunder- stood and misapplied, it is true to-day. The lender, who having an option to let the loan remain in the business, stipulates for the borrowers devoting all their time exclusively to the business, accounting for all purchases and sales, paying semi-annual profits, guarantying lender 3-5 profits and repaying $3000 a year, and making loan a lien on the property ; and also, for the option, if a breach of the contract, to terminate the loan, and to take and sell the stock to repay him- 209 §52. The Test. Pt. 2, Ch. i. self, is a partner. He has the interest of a proprietor in the business. ■ Interest of proprietors in the business and Its profits makes partnership, B agreed to lend C & D $5,000 from time to time, according to require- ments of their business, manufacturing and selling segars, and let loan remain, as a permanent fund in the business, from one to five years, at his option ; C & D to devote all their time and sitill to the business, which should be confined to manufacturing and selling segars; to keep account of all purchases and sales, and from and to whom, and when, made ; and of all receipts and payments, and to pay, every six months, 3-5 profits, with a guarantee of at least $3,000 a year to B, who should have a lien on all firm property, as security. Breach of contract by C & D put an end to loan, and authorized B to take possession of assets, and sell them to satisfy his loan. A sued B on notes made by C & D in the business. — Recovered. No repayment of loan, no rate of interest. C & D not sole proprietors. Guarantee for B's benefit. Rosenfield v. Haight, 53 Wisconsin 260 s. c. 10 N.378 (1881). Sharing profits as proprietors Is partnership. B, owner of plantation, owed C $i,ooo. They agreed to raise a crop, B furnishing outfit and land, and advancing money to pay hands and carry on business ; C hiring hands, superintending business, and reimbursing B half his outlay of $1,000. B mortgaged crop to A, and C sold bales of cotton in dispute to D. — Judgment for D reversed. Partnership, because, as proprietors, they looked only to profits. Reynolds v. Pool, 84 N. C. 37 (i88i). Affirmed in mining partnership. JWauney v. Coit, 86 N. C. 463 (1882). If brolcer joins in purchase on bis own account, and takes an interest instead of a commission, he is a partner. A, a merchant in London, directed B, a broker at Liverpool, to buy cotton, and allowed him 1-3 interest in profit and loss of adventure, instead of a commission. The transaction, which lasted three months, was treated in the correspond- ence as a joint purchase, and the cotton was stored in building rented by B. B pledged the cotton to D, who thought B was the owner. A brought trover for 2-3 the cotton. — D entitled to it, as B was a partner, and had the right to pledge. Reed v. Hollingshead, 8 B. & C. 878 (1825). Sharing partnership fund and a siim out of profits, make a partner. B advanced £24,000 to C & D, who were in partnership, as brewers, and the three executed a deed, by which a partnership stock was created, as their joint property. B had no aliquot share of the profits, but the right to an account, in order to get £2,000 or £2,400 out of the profits. C 210 Pt. 2, Ch. I. The Test. §52. & D became bankrupt, and A sued B, as a partner. — Liable, because a joint owner of the partnersliip stock, and entitled to a sum out of the profits, though not to an aliquot share. Ex parte Chuck, 8 Bing. 469 (1832). Proprietary interest in profits, coupled witti an advance, malies a partner- sliip. B lent C & Co. $2,000, and took 1-3 of profits in lieu of interest, stipulating for semi-annual settlements, and an option to become, by an additional payment, a partner at end of the year. A sued B as partner. Defence : Share in profits compensation for loan. — Profits not compen- sation, if partaker also makes advance to firm, but coupled together stamp the title to profits as proprietary, and the advance as a contribu- tion. Leggett V. Hyde, 58 N. Y. 272 (1874). Railroad contractors sharing profits with capitalists who raise the money to work the contract, have an equal interest in the contract ; which makes them co-principals without any intention to be partners and in spite of an intention not to be- come partners. Joint ownership of subject-matter, witli control and share in profits, malce a partner. B procured, for C & D, a contract for building a railroad, and agreed to give his skill in constructing it. They agreed to give him 1-3 net profits made out of the contract, and 1-3 net profits of operating the road. B assigned his interest under the contract to E & F, for |2o,ooo. C & D agreed, in consideration that E & F would raise funds for the enterprise, to deduct the $20,000 out of the $300,000, and share the profits of the contract equally. The business was carried • on in the name of C & D. A, a track-layer, sued the four on a note given him by C & D. E made defence : Not a partner. — Liable. He had a joint interest in working the contract and shared profits as owner. Voorhees v. Jones, 5 Dutch, 270 (1865). The proprietary interest reveals the partner, who must an- swer for the use of his property ; otherwise the law would put a bonus on promoters and victimize creditors. The person who launches the enterprise and derives the benefit of its successful prosecution should be made to answer for its losses. Loan limited to business and for share of profits, coupled with lender's control and optional advances) malce him a partner. B lent C $750 for exclusive use in heating and ventilating business, taking C's note at , two years with life policy for $3,000 and chattel-mortgage as collateral; for which loan and his services in securing purchasers and advances he 211 §53- The Test. Pt. 2, Ch. i. might make or withdraw at his discretion, B received 1-2 profits. C received salary of if 1,000, and rendered B quarterly statements of busi- ness. A sued B for materials and labor furnished the business. — Re- covered. B took part in business, and at his discretion furnished means to carry it on. Loan for the business and any diversion pro- hibited. Each charged business for interest on advances, which would be repaid pro rata if assets sufficient, so that each would lose in proportion to his advances. B's share of profits did not end with repayment of loan or depend on his services or advances. B had an interest in business, right to account, authority to contract, and irrevo- cable right to 1-2 profits. Repayment of loan does not preclude part- nership, for partner competent to guarantee co-partner against loss. Principle: Partners receiving the fruits of an enterprise must answer for its losses. This is justice and public policy, or promoters would speculate at the risk of creditors. Hackett v. Stanley, 115 N. Y. 625, s. c. 22 N. E. 745 (i88g). This is a recurrence in New York to the principle of Leggett V. Hyde, supra. The law declares the agreement to share profits a partner- ship. The participant is a partner. Sharing profits charges participant as a partner to third persons. B, January i, 1880, by written contract, employed C to manage his busi- ness and divide the profits, share and share alike. A sued B for goods sold C, trading as C & Co. — Recovered. Participant in profits a partner as to third persons. Caldwell v. Miller, 127 Pa. 442, s. c. 17 A. 983 (1889). §53. The title to profits depends upon ownersliip, not upon partnership. The right is created by the law of property, not by the law of relation, and property includes, not only Pt. 2, Ch. I. The Test. §53. the tangible stock, but the capitalized services of the partners. The profits are an incident of dominion, as rent is an incident of proprietorship in land. They are the result, or consequence, of business, a product of the partnership. The partners share the profits, because, upon a dissolution of the firm, the members inherit its property. A division of the firm property, whether it consists of profits or of stock, puts an end to the firm. As to that property, the partnership is dissolved. A partnership in a single transaction dis- closes the process. At the instant the partner's right to share the profits accrues, the partnership ceases to exist. In every partnership the right to share the profits of the firm, or its stock can be enforced only by a final account, which means a dissolution. The right to share in the profits is an individual or several right, which takes effect after the joint right is dis- solved into its constituent parts. Partnership brings its members into combination, and makes them a unit. The rights of the partners are so exclusive that the exertion of a several right dissolves the relation. The so-called right to share the profits during the partner- ship is not a right at all, but a threat. It takes effect as a condition, reserved at the outset, to sever the re- lation altogether, unless a partial dissolution is con- ceded for the occasion. The joint right of ownership is inconsistent with several rights of ownership in the same property, and cannot co-exist with them. The individual title, if permitted for convenience, to ex- clude the joint proprietorship of the firm, is not recog- nized, except as an indulgence. The sanction which 213 §53. The Test. Pt. 2, Ch. i. gives legal validity to the right makes a dissolution of the partnership the only means of enforcement. The right of the partner, therefore, is to dissolve the firm, in order to get his share of the profits. The co-incidence of profits is not with partnership, but with trade. They belong to trade, and they dis- close their identity with it. As the desire for profits is the motive which creates the business, they are the cause of trade, because they are the product of its transactions. The profits became a constituent of partnership, on account of the field of its operations b'eing limited to trade. It is the business which is concerned with profits, and the profits make the trader. The partner is a trader,' and as trade is buying and selling property, he is a proprietor.^ The partners have a joint title to both contribution and assets. The separate titles do not come into ex- istence until the joint title is exhausted. The part- ners, as debtors, do not obtain a clear title until their creditors are paid. Nor can they compete, by means of their separate titles, with the firm-creditors, who are also subrogated to their separate rights. The credit- ors rely upon both the joint and separate titles of their debtors for satisfaction. The profits, when shared, are separate estate, but the partner cannot take or hold them against the creditors, to whom he pledged his title. He renounced his separate title in advance, and postponed his right of property in favor of the creditors until they were satisfied. This is the pledge of part- nership. I. Salary. A took 1-4 profits in lieu of salary. Plaintiff joined him as 214 PT. 2, CH. I. THE TEST. §53. partner. — Not partner, because not a principal trader in the business. Dissent. — Sharing profits in lieu of salary makes partnership as to third persons. A, not being principal, could not join as plaintiff ; such right depends on existence of partnership inter se. But he may be made de- fendant as partner quoad alios, Burckle V. Ecl fendant. A sued B & Co. for libel. Defendant appeared as B, trading as B & Co. A proceeded against B, as the firm, and took judgment by consent. Hearing that C was B's partner, A moved to amend judgment, and make C co-defendant. — Refused. A no equity. Lord SELBORNE: Judgment by consent operates as unconscious release by A of C. Lord BLACKBURN : A might set aside judgment and start pleadings afresh. Lord FITZGERALD: Judgment fixes B's liability, which could not be re-judged, Munster v. Cox, 10 Appeal Cases 680 {1885), Judgment against tiusband bars suit against wife to cliarge her separate estate. B and C, husband and wife contracted, through agent, to let a furnished house in London to A, with option to buy the furniture. A sued B for breach, and recovered judgment for £30. Not obtaining full satisfaction, he sued C, who had separate estate. Non-suit. Ap- pealed. Claim : Two contracts, because B contracts personally, but C only for her separate estate. Married woman can't make a joint contract, even with another married woman, because the contract is in respect of different estate.— Affirmed. Husband and wife contract alike and action lies on it, though relief is limited to her separate estate. A's dilemma: C had a separate estate, and could make joint contract which judgment against co-contractor merged; or had no separate estate and could not be sued. Hoare v. Niblett, '91 i Q. B. D. 781. Judge Williams said there was no election conscious or un- conscious. The process then does not respond to the right and embody the claim. On the contrary the procedure is a me- chanism which works on its own hool<. It is not even subject to intelligent direction, so that it can be controlled by an en- lightened judge. It is a mechanical toy or crazy machine which, once started, must run its course and work itself off, no matter what pranks it cuts up. It seems incredible that a judge would confess that the instrument of his hand, the process of his court, the means to carry out his decree, were agencies beyond his control, He sits back and looks at the wild play of 30 Pt. 2, Ch. 5. Business Contracts. %77. the force he has let loose as if it were a freak of nature with which he has nothing to do. This recalls Carlyle'S burlesque of scientific theology which makes God an automatic law- machine: "Is there no God, then; but at best an absentee " God, sitting idle, ever since the first Sabbath, at the outside " of His Universe, and seeing it go .?"«■ a. Sartor Resartus, Chapter VII. Judgment against one joint contractor extingulslies claim against co-con- tractor. A sued B & Co., composed of B and C, for merchandise. After delivery of goods, firm dissolved. A, not knowing of dissolu- tion, drew on B & Co. for price. B accepted for B & Co. Part pay- ment, and suit for balance, and judgment obtained by default. Un- able to obtain satisfaction, A sued C, who set up judgment against B for same cause as a bar. — Judgment for C. Judgment merged cause. Chambefortv. Chapman, 19 Q. B. D. 229 (1887). Comment ; " Why under any rational system of law should an un- " satisfied judgment against X relieve Y from a joint liability? This " is a question easier to ask then to answer. The judges who decided " Kendall v. Hamilton, did not profess to answer it." 3 Law Review 483 (1887). Claim still single and judgment a merger. A sued B, who applied, under Order XVI,, r. 11, for joinder of C and D, his co-partners. Court re- fused. — Reversed. The judgment against B would merge claim, and operate to release C and D under joint contract theory, which still sub- sists, despite the Judicature Act, and the orders under it. Pilley v. Robinson, 20 Q. B. D. 155 (1887). 4. Judgment by consent against partner bars suit, though with his co-operation against co-partners, notwithstanding, liability several as well as joint. A sued B and obtained judgment by consent. Then discovering co- partner C, struck off judgment, amended writ and made C co-defendant with B's consent.— Error. Judgment by extinguishing cause of action released C, who might invoke judgment to prevent A from 'violating' C's 'right,' i. e. to repudiate his debt. Lord MANSFIELD'S allowance of plea in abatement an error in pleading, which made contract several as well as joint as to defendants. A's election conscious or unconscious not involved. Question not of intention, but of pleading which ends litigation by single judgment. Hammond v. Schofield, '91, i Q. B. 453. 3S9 §78. Business Contracts. Pt. 2, Ch. 5, §78. The contract made by the partners in firm transactions is joint in form, but several in substance. The basis of the partnership structure is the con- tract which the partners make for the firm in trans- acting its business. What is the character of this contract? It is an aggregate of contracts, as the firm is an aggregate of partners. The joint form corres- ponds to the firm which exists only in its parts. The severability of the contract appears in the lia- bility upon it of each partnt.'i; to the extent of his re- sources. The liability is recognized in substantive law, and is denied only in procedure. The moment a judgment against the partners is recovered, execu- tion may issue against each, any or all of them, until satisfaction is obtained. The execution against one is no answer to an execution against the others.* Apart from mesne process, the liability is several as well as joint. In equity, and in bankruptcy, where there is no formal procedure, the liability of each partner's separate estate for the firm debts, is enforced without hesitation. One separate commission does not ex- clude a second, nor does a joint commission prevent recourse to the individual partner.* I. Firm creditor's right to proceed against separate estate will not be con- trolled in equity, except for fraud. C obtained judgment against firm A & B, and levied on partnership land. He also levied on A's land lying in a different county, wliich A had conveyed to D, as security for a loan. A and D enjoined C. on the ground that firm land was sufficient to satisfy his debt, and that co-partners colluded with C to defraud A. 360 Pt. 2, Ch. 5. Business Contracts. §79. — Injunction continued, because averment of fraud was not denied by co-partners. But creditor's right admitted to proceed against separate, as well as joint, estate of partners. Wisham v. Lippincott, i Stock. 353, N. J. U853)- 2. " Formerly it was the practice for the creditor of a firm of severel " partners to take out separate commissions against each partner, as " well as a joint commission against the whole firm ; the object being " to distribute the assets of the firm under the joint commission, and " the separate assets of each partner under the separate commission " issued against him. The modern practice, however, is different ; for " now under a joint adjudication against a firm, not only are the assets " of the firm distributed amongst its joint creditors, but the separate " assets of eafh partner are also distributed amongst its own separate " creditors." 2 Lindley 1140 ; The Law and Practice of Bankruptcy, by ORLANDO F. BUMP, 5th ed. p. 53 et seq., (1872). §79. A new formula was not devised to embody the obliga* tion of partners. Upon the introduction of partnership into the Com- mon law, a new form was required, to express the new undertaking and embody the partners' contract. But the courts preferred to take what they had at hand. They took the old formula, and made it answer for the occasion, without introducing any variation, or adapting it to the new subject-matter. The joint ob- ligation was the uncouth form, which was turned to account and held to express the firm contract. This kind of obligation never did correspond to any busi- ness transaction,' and, in place of it, the continental Countries, which were foremost in trade, have, from 361 § 79- BUSINESS Contracts. Pt. 2, Ch. 5. the earliest times, recognized a commercial contract.^ The commercial contract has at last become, with us, the real exponent of the partners' status. 1. Speaking of the effect, WOODWARD, J. said : " The technical rule " of the common law * never had regard to the substance of the " contract but only to the remedy upon it." " Here according to the " strict rule of the common law there would be a clear right without a " remedy." " There never was any equity or natural justice in such " a rule." Bowman v. Kistler, 33 Pa. ni-2 (1859). 2. The process has been described supra %'^^. The com- mercial contract, which charges each partner with unlimi- ted, or in solido, liability, existed among the Romans, but was not the ordinary partnership contract.* In modern times the exception has become the rule. The commer- cial codes of Countries which follow the Civil law, estab- lish an in solido obligation.'' a. The civil codes describe the ordinary partnership. Louisiana C. C. 2874 : " Ordinary partners are not bound In solido " for the debts of the partnership, and no one of them can bind his " partners, unless they have given him authority to do so, either spe- " cially or by the articles of partnership." If two partners, each liable to plaintiff for half the debt. A sued B for work on his plantation and on his steamer, done at C's request. The evidence showed that B & C were partners.— Recovered half the debt, under the code. Logan v. Cragin, 27 La. An. 352 {1875). b. The commercial codes describe the trade partnership, which also exists at the Common law. La. C. C. 274. Ordinary partnership. " Commercial partners are " bound in solido for the debts of the partnership." " Bel den Handelsobligationen werden die Mitschuldner als solida- " risch vermuthet, wenn nicht darin eine entgegenstehende Verein- " barung getroffen ist." 3 Borchardt, Handelsgesetze des Erdballs. Italy C. C. §40, P- 213. French Com. Code, ^22, 2 lb., p. 533. " Die Gesellschafter haften fiir alle Verbindlichkeiten der Gesell- " schaft solidarisch und mit ihrem ganzen Vermogen." 2 lb. German Empire C. C. ?ii2, p. 330 ; lb. §280, p. 363. 362 PT. 2, Ch. 5. Business Contracts.. §8o. " DieWirkungen der Solidaritat zwischen den Glaubigern sind: dass " jeder der Glaubiger das Recht hat, die Gesammtzahlung der Forder- " ung zu verlangen." 5 lb. Uruguay C. C, ^267, p. 39. Die Wirkungen der solidarischen Haftung zwischen den Schuldnern sind : " Dass der Glaubiger das Recht hat, den Gesammtbetrag der For- " derung von demjenigen Schuldner zu fordern, welchen er wahlt, und " welcher verpflichtet ist, ihm das Ganze zu bezahlen, ohne dass er das " Recht der Theilung unter den ubrigen Schuldnern beanspruchen kann." 5 lb. Argentine Republic, §268, p. 46. " Der Glaubiger kann nach seiner Wahl von alien Solidarschuld- " nern oder von einem derselben das Ganze oder nur ein Theil for- " dern. Auch im letzteren Falle bleiben sammtlicheSchuldner so lange " verpflichtet, bis die ganze Forderung getilgt ist." 4 lb. Switzerland, C. C., I163, p. 696, "Diejenigen.welche derGesllschaft nicht angehoren und ihren Namen " in die Gesellschaftsfirma einfiigen, werden der solidarischen Haftbar- " keit unterworfen, unbeschadet der etwa Platz greifenden Strafe." 5 lb. Spain, C. C. ^126, p, 25. §80. The courts did not remodel the Common law process, in order to adapt it to firm transactions, and, at last, the legislature intervened to rectify the procedure. The firm contract, however, became identified with the joint contract of the common law, and the princi- ples of partnership were worked out on the rack of this formula. The amalgamation, as it admittedly worked injustice, was not effected without a protest. A great commercial lawyer, like Lord Mansfield, who could, not bring himself to the conviction that he was not a moral being, but only an intellectual machine to 363 §8o. Business Contracts. Pt. 2, Ch. 5. grind out the law as he found it, good, bad, or indif- ferent, tried to re-model the formula and convert it into an equitable process/ His decision started a revolution in the procedure, but professional tradition was inveterate, and stayed for generations the bene- ficent ameliorations which he foreshadowed. It was not until common sense compelled the legis- lature to intervene, and to keep on intervening, that the firm contract was permitted to create its own f orm.^ 1. Non-joinder of partner as defendant waived unless pleaded in abatement. A sued B, who non-suited plaintiff on evidence at tlie trial that he had not joined B's partner, C, as co-defendant. On a rule to tatce off the non-suit, argument : B waived defence of C's non-joinder by not plead- ing it in abatement. — New trial awarded. Rice v. Shute, 5 Burr. 261 1 (1770). 2. This change hsis been accomplished by statute. " In trials of actions * brought by partners * it shall not be neces- " sary for the plaintiff in order to maintain any such action, to prove " the co-partnership of the individuals named in such action, or to " prove the Christian or surnames of such partners * but the names " of such co-partners * shall be presumed to be truly set forth * pro- " vided that nothing herein contained shall prevent the defendant from " pleading in abatement, as heretofore, or of proving on the trial that " more persons ought to have been made plaintiffs." Colorado Stats. " of 1885, ?5. " Any one of the associates or his legal representative may be sued " for the obligation of all." Alabama Code of 1876, §2904. " In all cases of joint obligations and joint assumptions of co-part- " ners * suit may be brought and prosecuted against any one or more of " those who are so liable." Kansas Compiled Laws of 188; (1078) I4. " Suits may be brought by or against * * all or either of the indivi- " dual members." Iowa Code of 1884, ?2;53. Nor does the judgment merge the firm claim or debt. "An action or judgment against any one or more of several persons " jointly bound, shall not be a bar to proceedings against the other." lb. 2550. 364 PT. 2, Ch. 5. Business Contracts. §81. §81. The joint process extinguished the several liability of the partners. Look at the Common law, and see how it frustrates, at every turn, the design of the partners. They were treated as making a joint contract. The law admitted that the firm contract was the several contract of each partner, and enforced performance against any part- ner. But, though each partner is liable for the whole debt, the creditor was not permitted to sue him in a separate action. Had this been allowed, subject to the defendant's right to compel a joinder of the co- partners, for his protection, the confusion, which pro- duced a chronic miscarriage of justice, would not have arisen. A joint process was, however, required, in order to make the action correspond, in form, to the contract,' and a judgment against any partner on ac- count of the form, extinguished the claim against all. This construction enabled a co-obligor to defeat the claimant's remedy by confessing judgment, if the claimant went on to trial against the other obligors, and obtained judgment, it could not stand, but would be arrested, because the cause of action, being joint, is merged by a judgment against a single obligor, as his defence corresponds to the claim, and covers the total amount of the obligation.* Conversely, the ob- ligor's confession of judgment to a partner would merge the firm claim, and for the same reason.* The 365 §8i. Business Contracts. Pt. 2, Ch, 5. whole debt is due to each partner who represents the firm. Not only must the suit be joint, but service must be effected upon all the obligors, at the cost of releas- ing those who are not served. In England, where the plaintiff had sued all the partners, but could not effect service upon all of them he might proceed to outlawry against such as were not served, and having thus subjected their goods to his claim, recover judg- ment against the others. In Pennsylvania, there never was any process of outlawry. If only one part- ner could be found, and he was served, the others, after judgment against him, could not be touched. The pursuit by the plaintiff of his remedy defeated his right.* 1. Both partners must be joined as defendants in a suit for value of plaintiff's property which they refuse to return. A sued for a stove lent to B, which he refused to return on demand. B set up, in his answer, the non- joinder of his partner, C. Judgment for A, on the ground that the action was trover, and in tort plaintiff could sue either wrong-doer. — Reversed. Action ex contractu, because plaintiff claims the value of the stove as a debt, and judgment would not justify defendant's arrest on a ca. sa. Slutts v. Chafee, 48 Wis. 617 (1880). 2. Judgment confessed by partner bars recovery against co-partner. A sued B & C on a joint contract. B confessed judgment for $2,631.19, and A obtained verdict against C, who went to trial, for $1,522.88, and entered judgment. A's argument: C waived effect of B's confessed judgment by going to trial, and difference of amounts no reason against A's claim.— Arrested. Judgment against B final, and merged cause of action, which was joint. Two judgments couldn't stand, either both separate or one joint and other separate; nor could joint judgment be for different amounts. B entitled to C's defence. Williams v. JVlcFall, 2 S. & R. 280, Pa. (1816). Judgment on a firm claim must be against all the partners. B, C & D formed a partnership, in January, 1869, for four years, to manufacture 366 Pt. 2, Ch. 5. Business contracts. §82. wine, and traded in B's individual name. A sold the firm casks. April, 1873, B paid part, and gave his note for the balance of the debt. April, 1874, A found out that C and D were partners of B, and sued the three for the firm debt. Judgment was entered against B, by default, on the note, for $791.77, and, after" a trial on the merits, against C and D on the claim. Appeal : Judgment against B merged the cause of action, and discharged C and D. — Reversed. Two judgments, for different amounts, on the same claim cannot stand. Judgment against B entered without authority, and void, because on a joint claim. But judgment against C and D void, because B not included in it. Curry V. White, 51 Cal. 185 (188;). 3. Judgment confessed to partner merges firm claini. B confessed judgment to A, for price of goods bought of A's firm. B moved to set aside judgment and execution, because A's partners not joined. — Re- fused. B discharged from liability to them. Chapin v. Clemitson, I Barb. 311, N. Y. (1847). 4. The procedure frustrates the purpose for which it exists, and annihilates the rights it was devised to protect. Judgment recovered against partner, after failure to effect service on co-partner, releases liim. A sued B & C on a joint bond. B was served, but C returned non est inventus. Judgment obtained against B. A subsequently sued C, who pleaded merger of bond in judgment. — Barred. Neither obligor could be sued on the bond, which was ex- tinguished by the judgment. Return enabled A to go on against B, without proceeding to outlawry against C, as in England, where his estate would go in satisfaction. A lost his remedy by pursuit of it. Downey v. F. & M. Bank, 13 S. & R. 288, Pa. (1825). §82. The legislature of Pennsylvania partially corrected this abuse of legal process, by preventing, in joint actions, the judgment against the partners served from merging the claim against others. At an early date, the legislatures of various states set about to correct this abuse of legal process.' A 367 §82. Business Contracts. Pt. 2, Ch. 5. statute of Pennsylvania, enacted,^ section i: "In * " suits against co-partners * if tfie writ or process * " is not served on all the defendants, judgment may " be obtained against those served, but it shall not be " a bar to recovery in another suit against defendants " notserved." By section 2, a confessed is assimilated to an adverse judgment, and does not prevent recovery against the non-confessing partner. A statute of Michigan made a similar provision.^ I. "No judgment rendered against a part only of the defendants in an " action upon a joint contract stiall be a bar to any future action on " said contract against such of the defendants upon whom or whose " estate the suit in the original action shall not have been served." Rhode Island Public Stats, of 1882, I29. " If the name of one or more partners shall, for any cause, have been " omitted in any action in which judgment shall have passed against " the defendants named in the summons, and such omission shall not " have been pleaded in such action, the plaintiff, in case the judgment " therein shall remain unsatisfied, may, by action, recover of such part- " ner separately, upon proving his joint liability, notwithstanding he " may not have been named in the original action ; but the plaintiff " shall have satisfaction of only one judgment rendered for the same " cause of action." N. C. Code of 1883, pp. 83, 84 (4). " When any writ against joint and several obligors shall be returned " as to one or more, and non est as to the others, the clerk may renew " the writ against those upon whom it has not been served, and upon " service upon the other obligors and return thereof, the obligors may " pray the court to consolidate the actions, and the court may so con- " solidate such actions that no delay shall be caused thereby ; but " judgment shall be entered against the obligor last summoned at the " same term as against the obligors first summoned, and in no case " shall delay be occasioned by such consolidation." Maryland Re- vised Code of 1878, ?57. " A judgment rendered against one or more members of a partner- " ship, * * less than the whole number of partners, * shall not work " an extinguishment or merger of the cause of action on which said " judgment may have been rendered, as respects the liability of the 368 Pt. 2, Ch. 5. Business Contracts. §82. " partners * not bound by such judgment ; and they shall remain " liable to be sued as if their original responsibility had been joint and " several ; provided, that but one satisfaction of the debt or demand " shall be made." lb. §60. " Suits may be brought by or against a partnership as such, or " against all or either of the individual members thereof, and a judg- " ment against the firm, as such, may be enforced against the partner- " ship property or that of such members as have appeared or been *' served with notice. But a new action may be brought against the " other members on the original cause of action." Iowa Code of 1884, ?2553- " When a judgment shall be recovered against one or more of sev- " eral persons jointly indebted upon a contract, by proceeding as pro- " vided in section i57,i' those who were not originally summoned to " answer the complaint maybe summoned to show cause why they " should not be bound by the judgment, in the same manner as if " they had been originally summoned." S. C. General Stats, of 1882, ?377, a. ?I57 made judgment in joint action bind partnership property, and that of served partner, severed judgment, and charged non-served part- ner in a separate action upon proof of his joint liability. 2. Act 6 April, 1830, P. L., 277. 3. "i. In actions against two or more persons jointly indebted upon any " joint obligation, contract, or liability, if the process issued against all " of the defendants shall have been duly served upon either of them, " the defendant so served shall answer to the plaintiff; and in such " case the judgment, if rendered in favor of theplaintiff,shalibe against " all the defendants, in the same manner as if all had been served with " process. "2. Such judgment shall be conclusive evidence of the liability of " the defendant who was personally served with process in the suit, or " who appeared therein ; but against every other defendant, it shall be " only evidence of the extent of the plaintiff's demand after the liability " of such defendant shall have been established by other evidence." Compiled Laws of Michigan, 1857, ch. 133. Re-enacted JVlich. Anno- tated Stats, of 1882, ??773o-i. Judgment against some partners not a bar to suit against otiiers, if they were not served. A sued B, C & D, partners, on a firm note, in U. S. C. C, but obtained service only on C. Defendant offered in evidence judgment in State court against the three for amount of note. But 369 §83. Business Contracts. Pt. 2, Ch. 5. only B had not been served in the State proceedings. — Judgment not a bar. Michigan statute limits judgment to defendant who is served with process. Mason v. Eldred, 6 Wall. 231 (1879). §83. The courts of Pennsylvania restricted tlie remedial statute to joint actions, and, except in such actions, per< mitted the judgment against a partner to extinguish the claim against his co-partner. The Pennsylvania act was restricted, by judicial in- terpretation, to the specific mischief pointed out, and limited, in its remedial operation, to joint actions. If an action was brought against one partner, or against any number less than all, the judgment would be a bar to the plaintiff's recovery against the co-partners. The act aided a plaintiff who observed the form, and did his best to obtain judgment against all.' He was no longer barred in his pursuit of them, because they succeeded in evading him. But, at that point the statutory relief ended. If the plaintiff severed, the act did not apply. Taking a partner's confessed judg- ment for the firm debt, merged the claim.^ A specialty was equally a merger of the claim. A sealed note, given by one partner, and accepted by the creditor for his claim, would bar his subsequent recourse to the other partner.^ If the plaintiff brought a joint action, he might pro- ceed, if any defendants accepted service, to judgment 370 Pt. 2, Ch. 5. Business Contracts'. §83. against them, without securing service against all. The effort to serve was sufficiently shown by placing the writ in the sheriff's hands without any return be- ing made by him, no prevention by the plaintiff of service by the sheriff being shown/ 1. Accepting service does not malce judgment in joint action a bar to subse- quent suit against non-served partner. A's summons against B, C & D, on their sealed note for a firm debt, was accepted by B and C, but no return made by sheriff as to D. A general award for A. He subse- quently sued D, who objected that specialty merged claim in a joint debt which was discharged by an award based on the volunteer accept- ance of B and C, without any attempt to serve D. — Recovery. No evidence that A prevented service on D in order to maintain several actions on the joint obligation. Moore v. Hepburn, 5 Pa., 399 (1847). 2. Talcing confessed judgment from partner merges claim against co-partner. A took B, a partner's, confessed judgment for the firm's debt, and also his bond and warrant, which A entered up in a different State. Not getting full satisfaction, A sued C, surviving partner, who pleaded the judgment and bond in bar. — Claim merged. Act 1830 remedied failure to get judgment against all defendants in a joint action, but did not change law in separate suits. Lewis v. Williams, 6 Wh. 263, Pa. (1841). 3. Creditor, by talcing partner's bond for firm debt, releases co-partner. B & C agreed, in writing, that B should buy wheat with money furnished by C ; that B should grind the wheat, and sell the flour; that the ex- penses should " be deducted from the proceeds, and the balance equally divided for profit or loss." B bought wheat, and gave A the following paper: " Due A for wheat to the amount of $441. 87^^, received by me, B." Afterwards, B gave A his note, under seal, for the said sura. On this note iander seal, payments to the amount of $300 were indorsed. A sued B & C, in assumpsit, jointly. Reference to arbitrators, who reported in favor of A. C appealed from the award ; B did not. Jury was sworn as to C alone. The above instruments were put in evidence, together with proof of repeated declarations of B and acts of C, indi- cating that they were partners. Verdict for A, and judgment accord- ingly.— Reversed. Accepting a specialty from, or obtaining judgment against, one partner for a firm debt, extinguishes all claim against the other partners, whether dormant partners or not. Anderson v. Levan, I W. & S. 334, Pa. (1841). 371 §84. Business Contracts. Pt. 2, Ch. 5. 4. If judgment confessed by partner, death of co-partner discharges his estate. A's executor brought debt on joint and several bonds against both obligors, B & C. B confessed judgment, and, pending suit, C died. A brought in his executors on sci. fa. Defence : C's death discharged his estate.— Judgment for executors. Plaintiff elected joint remedy, which was confined, by C's death, to B, the survivor. Walter v. Ginrich, 2 Watts 204, Pa. (1834). Moore v, Hepburn, supra n. i. §84. Although the plaintiff did not know there was another partner, and was kept from knowing it by the precautions of the partners themselves, none the less does the judg== ment against the ostensible partner operate and extinguish the claim. Is there a saving where the plaintiff could not bring a joint action ? For instance, he would not know of a secret partner's existence, and could not join him as a defendant. The Mikado's law serves as the exemp- lar. 'The fool of a law' says nothing about the knowledge of a claimant, or about his intention. The law works on its own hook. It does not compli- cate its movements with the idiosyncrasies of the hu- man will. If the plaintiff did not know of the dor- mant partner's existence, and brought suit against the known partners, his claim was none the less merged in the judgment, and the dormant partner escaped all liability. If the plaintiff could sue again whenever he 372 Pt. 2, Ch. 5. BUSINESS Contracts, §84. discovered a dormant partner, the bar of the statute of limitations might be impaired !' When a partner was out of the jurisdiction, the plaintiff could not join him as co-defendant in the first action. If a subsequent suit could not be brought, and the absent partner was a citizen of a different state, another principle of partnership law was sub- verted. The separate estate of the foreign partner was not made available for the firm debts.*^ If the suit is joint, but is brought out of the State (Pa.), the judgment against the partner served would not bar a subsequent suit in the State (Pa.) against all the partners. For if the others could not afterwards be sued in the State (Pa.), a foreign judgment would have greater effect than a domestic judgment.* As the defendant in judgment had denied the foreign jurisdiction, the plaintiff was entitled to proceed de novo in the State (Pa.). If the law was reversed, and a domestic judgment merged the claim, but a foreign judgment did not, the foreign judgment would bar a subsequent suit in the domestic forum. The judg- ment of a sister state is assimilated to a domestic judg- ment, and is given equal scope.* The effect of a judgment against a partner is deter- mined by the law of the forum. ^ Although the Common law knows no other part- nership than the commercial, a foreign court does not take judicial notice of that fact, but in default of evi- dence applies its domestic law, which may recognize the civil, as well as the commercial partnership.* 373 §84. Business Contracts. Pt. 2, Ch. 5. 1. Judgment against partner prevents subsequent suit on the claim. A sued B and C on promissory notes, and obtained judgment. Subsequently, ascertaining ttiat D and E were also members of the firm, he sued all four. D alone was arrested, and pleaded the judgment in bar. — Judg- ment for D. Joint contract basis of suit. Only plea which goes to personal discharge of defendant, e. g., infancy, discharge in bank- ruptcy, or insolvency, or death of a party, severs the plaintiff's claim. The judgment deprives plaintiff of his right of action against judg- ment debtors, and precludes suit against co-debtors, who can be sued only jointly with them. Robertson v. Smith, i8 Johns. 459 N.Y. (1821). Judgment recovered against ostensible partner bars claim, upon discovery against the dormant partner, A sued Nathan Smith on note given for price of merchandise, and signed " N. Smith." Judgment obtained, but no satisfaction. A subsequently discovered that Newberry Smith was a dormant partner, and sued him for the price. Defence : Judg- ment against Nathan a bar, and note taken in satisfaction of claim. Forms of pleading waived by parties, and cause submitted for decision on its merits.— No equity in A's claim, or new cause of action would accrue upon discovery of dormant partner, and statute of limitations would not bar the claim. Smith v. Black, 9 S. & R. 142, Pa. (1822). 2. Statute provides for this contingency : " That no plea in abatement " for the non-joinder of any person as co-defendant shall be allowed in " any court of Common law, unless it shall be stated in such plea " that such person is resident within the jurisdiction of the court." 3 & 4 William IV., c. 42. Defendant's absence from jurisdiction prevents judgment against co-defend- ant from merging joint claim. A, holder of B & C's joint note, sued them before a justice, and effected service on B. C, a non-resident of the county, was not found. Judgment against B being unsatisfied, A sued B & C, I, To make C party to judgment, and, 2, enter judgment against him on note. C appealed to C. P., and set up to i : Action brought before days of grace expired ; to 2, cause merged in judgment. —Judgment for A. Technical, admitted no substantive, defence. C's absence from jurisdiction made his non-joinder a necessity, and judg- ment did not merge claim, upon which, notwithstanding judgment, action could be brought by Rev. Stats. ?;366.a Defendant not sum- moned made party to judgment by action. Yoho v. McGovern, 42 O. St. II (1884). a. " ?;366. When judgment is rendered in this State on a joint contract " or instrument, parties to the action who are not summoned * * may " be made parties thereto by action in the same court, if they be sum- " moned in the State." 374 Pt. 2, Ch. 5- Business CONTRACTS. §84. 3. Foreiga judgment against partner don't bar domestic action against co- partners. A attached steamboat, at New Orleans, for supplies furnished at B, the captain's request, and recovered judgment against B and the other four Pa. co-owners, whom B represented by La. law. A subse- quently sued all five, at Pittsburgh, for the supplies. Two were served and made defence : Claim merged in judgment against B. — Not merged. La. Court had no jurisdiction, except over B, and if its judg- ment merged the claim, more effect would be given to a foreign judg- ment in Pa. than to a domestic judgment. Campbell v. Steele, ii Pa. 394 (1849)- 4. Wlietlier judgment against a partner reieases co-partner depends on law of the forum. B, C & D drew on A, without funds. A paid, and sued, and got judgment against B, in JVlo., where separate judgment on joint debt is no bar to action against the others. A recovered a portion of claim, and, for the balance, sued all in N. Y., where judgment against one joint-debtor releases the others. Defence: Released by Mo. judg- ment. — Judgment for defendants. Mo. judgment no greater effect than N. Y. judgment. Suydam v. Barber, 6 Duer 34, N. Y. (1836). ;. General judgment in Miss, against one partner of La. firm, did not prevent general judgment against co-partner, wlio was liable by La; law only for 1-2 the debt. B & C in La. accepted draft of A, who sued in Miss., but dismissed suit against B, and took judgment for whole debt against C. Failing to obtain satisfaction from C, A sued B, who set up law of La., which bound him only for 1-2, and also the dismissal. A's de- murrer overruled. — Reversed, and demurrer sustained. Miss, law gov- erns and by Code §1134, judgment neither merged nor satisfied debt. Scharff v. Noble, 67 Miss. 143 s. c, 6 So. 843 (1889). 6. Mo. partnership construed in La., civil and not commercial ; judgment bind- ing partner only for moiety. A obtained judgment by default in Mo. against B & C for $10,000 on their note. A sued B on judgment in La. Defence: Liable only for half. — Judgment for moiety. No proof of commercial partnership or of no civil partnership by Mo. law. In de- fault of proof, presumption of civil partnership and of La. law, which divides debt between partners. Bank of Commerce V. Mayer, 42 La. An., 1031 s. c. 8 So. 260 (1890). 375 §85. Business Contracts. pt. 2, Ch. 5. §85. The claim, in consequence of its being identified with the joint process at law, lost its character in equity as a right against each of the partners. In equity, how does the claimant stand? All con- tracts are joint and several in equity.* The loss of his claim against the dormant partner resulted from the technical procedure of the law, and not from any remissness of the plaintiff. He brought his action in compliance with the law, and in the only mode he could sue at all. It is the function of equity to sup- plement the defective operation of legal process for the relief of the victim. The answer to his petition was startling. The plaintiff has no equity.^ He elected, unconsciously, it is true, to proceed against the ostensible partner, but he has exerted his right, and he is bound by his choice. The law is equity.^ At first, the contract was admitted to be joint and several, at least, in equity; but after the judgment against a partner was held to extinguish the claim, it seemed easier to recant the principle, even in equity, than to impeach the verity of the record.* I. This principle of equity is now generally adopted at law, and in most of ttie States is enforced by statute. " All contracts which by common law are joint only, shall be con- " strued to be joint and several." Rev. St. Mo. 1879, ^658. Daliota Codes, 1884, §951; Illinois Statutes of 1887, ?;; Kansas Compiled Laws of 1885 (1075), §1. Joint contract also several. Judgment for A against B & C, partners, in Illinois Court. AsuedCon the judgment in U.S. C.C. Demurrer. 376 Pt. 2, Ch. 5. Business Contracts. § 86. — Action lay. Missouri statute made joint contract joint and several. Belleville Sav. Bank v. Winslow, 30 F. 488 (1887). 2. Dormant partner not sued cooipetent, because judgment would release him. A brought suit on a note given by B & C. On trial, objected to testi- mony of D, a dormant partner. — Competent. Judgment against B & C would extinguish original debt; judgment for defendants would bar subsequent suit, and equity would not relieve plaintiff, because he did not know that D was a dormant partner. Consequa v. Willing, i Peters 301 (1816). 3. Judgment against one partner will not be vacated in order to let plaintiff charge another with him as a partner. A & Co. obtained judgment against B, but obtained nothing by execution. They applied to vacate judgment, in order to proceed also against C, as B's partner, — Refused. Wilkins v. Budd, i Hal. 153, N. J. (1822). 4. Supra ^77, n. 3. §86. The death of a partner released his estate at law, and made it only a surety for the plaintiff's claim in equity. The death of a partner might prevent the claimant from bringing a joint action. The procedure again defeated the right. The law adhered to the joint pro- cess, and could not frame a joint action which would lie against the living and the representatives of a de- ceased partner.' The breach of this contract charged the partner's estate, but the absence of a remedy made the law deny this elementary right.^ The claimant must sue the living partners, and look only to them ,for satisfaction.^ As the remedy at law was inade- quate, owing to its defective procedure, and excluded the claimant from access to his debtor's estate, he was 377 §86. Business Contracts. Pt. 2, Ch. 5. driven to re-assert his right in equity, where the pro- cedure does not run away with the right. Equity did not stickle at the forms of procedure, but it imposed terms upon the claimant.* He was entitled to relief against the deceased partner's estate, but, as the claim in equity was based upon an inadequacy of the remedy at law, the claimant must exhaust his legal redress.^ Unless he provedthe insolvency of the surviving part- ners and an absence of firm assets, or exhausted his remedies at law, he did not qualify himself to demand relief in equity.^ 1 . Suing executor of deceased, with surviving, partner, error. A sued B et al., trading as a Brick Co., and joined D, administrator of C, a deceased partner, on the Co.'s sealed note. Defendants, Inter alia, assigned as error the joinder of C's executors.— Misjoinder. Error, but S. C amended record, by striking off administrators as co-defendants. Ob- jection not having been made below, when plaintiffs could have amended under Act May 4, 1852, P. L. 574, S. C. made amendment. Hoskinson v. Eliot, 62 Pa. 393 (1869). No joint remedy against surviving and executor of deceased partner. No resort to deceased partner's estate until remedy against survivor exhausted, or his insolvency shown. B & C made a firm note to A, who sued B and D, executor of C. Complaint did not aver insolvency of B, nor return of execution unsatisfied. D's defence: Complaint shows no cause of action against decedent's estate. — Judgment for D. Com- plaint must show insolvency of survivor, or remedy exhausted against him, because the firm fund in the hands of the survivor is primarily liable for firm debts. The surviving and executor of deceased partner cannot be made co-defendants in a suit at law under the code. The remedy is against the deceased partner's estate only in equity. Voor- hisv. Childs, 17 N. Y. 355 (1858). 2. LOWRIE, C. J.: " It was only because the remedies were defective " that it (decedent's estate) was before (the statute April 11, 1848, J4 " Infra ^88) exempt." 34 Pa. 412. 3. The cause of action against the deceased partner's estate does not accrue, or the statute of limitations begin to run, until the remedies against the surviving partner have been pursued. 378 PT. 2, Ch. 5. Business Contracts. §86. Short statute of limitations don't bar firm creditor's suit against deceased partner's estate. Statute provided that upon executor's advertisement, creditors must present ttieir claims within six months, and, if disputed, bring suit within six months. A was firm creditor of B & C. He only presented his claim, without suing the survivor, or proving him insol- vent to C's executors, who equivocally disputed it, and did not include it in their account, which the surrogate confirmed. A excepted. De- fence: No suit within six months. — Exception sustained. Claim must be definitely rejected. Statute runs only against absolute claims. A's claim contingent until insolvency of survivor shown, or remedy against him exhausted. A sufficient amount should be set apart to meet the claim should it become a charge against C's estate. Hoyt v. Bennett, 59 N. Y. 538 (1872). 4. Surety's estate not cliarged in equity on account of principal's insolvency. A sued executors of C, in 1814, for balance unpaid by B of specialty debt. B received the loan, and C was surety for its repayment. C died in 1807, and B became insolvent. — No equity to charge C's estate. Weaver v. Shryock, 6 S & R. 262, Pa. (1820). ;. Deceased partner's estate iiabie upon return of execution against surviving partner unsatisfied, or by proof of insolvency. B & C, partners. C died, and A recovered judgment for a firm debt against B, as surviving partner. Execution was returned unsatisfied. A sued C's executrix, Defence: B had property.— Recovered. Exhausting legal remedy equivalent to proof of insolvency. Sheriff's return conclusive. Pope v. Cole, 55 N. Y. 124 (1873). . 6. Joinder of a deceased partner's representative, as defendant, with survivor, wiil, perhaps, be allowed, if the firm is Insolvent ; certainly, if both firm and survivor are insolvent. A made advances to B & C, on cotton shipped by the firm. He sold the cotton for the advances. January i, 1872, settlement of account showed balance of $62.54 due B & C. June 27, 1872, B died. Though no provision had been made, for it, C continued the business until November 29, 1875, when the firm was proved to be insolvent, and C was so in fact. A sued D, B's executor, and C for balance of account, and obtained judgment. Exceptions : Representa- tive of deceased, cannot be joined with surviving partner. — Not error. Code admits any joinder which could be made in equity. Insolvency of surviving partner, and of the firm, is sufficient to join deceased part- ner's representative as co-defendant, even if insolvency of the firm alone is not sufficient. Anderson v. Pollard, 62 Ga. 46 (1878). Deceased partner's estate liable ex contractu only if surviving partner no assets ; ex delecto, if fund exists and is converted. A indebted to B & C 379 587. Business Contracts. Pt. 2, Ch. 5. $1,243, sold his stock to them for nominal consideration of $2,500, but averred their promise to account for surplus. B died. A sued his estate and obtained judgment. — Reversed. Proof that assets in C's hands insufficient, prerequisite to action against B's estate. No tort, until proceeds yielded balance above costs of handling stock. Beaton V. Wade, 14 Colo. 4 s. c. 22 P. 1093 (1890). §87. The death of a partner pending suit against the firm also took away the plaintiff's right to proceed against his estate. The remedy survived only against the living part- ners. The death could not be suggested of record, and a sci. fa. issued against the executors, to make them parties to the original suit.' The plaintiff could not join the deceased partner's representatives, even for conformity.* By unnecessarily joining them, plaintiff would not render surviving partner incompe- tent to testify because plaintiff would be excluded.^ The executors would not be considered as parties, and as the suit would be between the plaintiff and the surviving partner, joining the executors of the de- ceased partner would not disqualify the surviving partner as a witness. The exceptions of cases where executors are parties would not apply, because the executors were improperly joined, and, therefore, would be disregarded as parties in fact. I, If surviving partner confesses judgment, deceased's estate Is discharged. A sued both B & C on a joint and several bail bond. B died, in 1823, 380 Pt. 2, Ch. 5- Business Contracts. §88. pending suit, and scl. fa. against liis administrators. Defence: C liable alone as surviving obligor. In 1840, C confessed judgment for claim, with interest from 1822. No satisfaction. — B's estate discharged. Finney v. Cochran, i W. & S. 112, Pa. (1841). 2. Firm creditor must sue surviving partner, if solvent. B & C made a note to D, and assigned to A. C died. B and D became his administrators. A sued B and D, but did not serve D. Both defendants appeared. Defence: A should first sue B, as survivor. Reply: Judgment asked against B alone; D joined merely for conformity, and his appearance irregular, without service. — B, being solvent, no cause of action against C's estate, and A must amend, by striking off D, who had the right to appear without service. Higgins v. Rockwell, 2 Duer 650, N. Y. (1853)- 3, Executors of deceased partners unnecessary parties; suit sbould be against surviving partners. Surviving partners not disqualified by joinder of de- ceased partner's executors as co-defendants. A brought ejectment against B, C & D, partners. Both parties claimed title by sheriff sales of E's leasehold. A alleged that first sale, to defendants, was fraudulent, and second sale, to plaintiff, passed the title. A died, and his administra- tors were substituted ; B died, and his executors were substituted. De- fendants called C to disprove representations at first sheriff's sale, which took place before the death of either A or B, to buy in the title for E. — Incompetent, not because A an assignor and his administrators assignees under proviso to ?i of Act April 15, i86g; E is assignor of both, plaintiff and defendants'; but because the cause of action arose from a tort, or contract, in A's life-time, and, therefore, his administrators sue in their representative capacity, and as " next in interest," under Act April 13, 1807, §3. B's executors not being neces- sary parties to the ejectment against the surviving partners, the substi- tution did not render C incompetent. Oram v. Rothermel, 98 Pa. 300 (1881). §88. Acts of Pennsylvania provide against a failure of the process by the death of a partner pending suit. The Act of II April, 1848, §4, enacts: '"In suit or 381 §88. Business Contracts. Pt. 2, Ch. 5. " suits which may hereafter be brought against the " executors or administrators of a deceased co-partner, " for the debt of a firm, it shall not be necessary to aver " on the record or prove on the trial, that the surviv- " ing partner or partners is or are insolvent to enable " the plaintiff to recover."^ The language does not mean that the burden of proof is shifted from the plaintiff, and that the representa- tives of the deceased partner may set up the solvency of the surviving partner as a defence to the suit.^ On the contrary, the statute gives a direct and immediate remedy against any or all of the partners or their es- tates.^ 1. p. L. 536. 2. statute gives flmi creditor direct remedy against deceased partner's estate. A sued D, administratrix of B, who had given A the firm notes of B & C. A had sued C, as surviving partner, but the verdict was for C. — Judgment for A. Under act remedy alternative, in accordance with the "general principle of partnership relation, which makes the estate of each partner responsible for partnership debts." Brewster v. Ster- rett, 31, Pa. 115, (1858). 3. Remedy against surviving and deceased partner cumulative. B & C, partners. A recovered judgmentagainst C, surviving partner, and upon distribution of B's estate in Orphans' Court, claimed payment. Judg- ment not disputed as liquidation of claim before auditors and court below. —Entitled. Remedies made cumulative in order to correct defect of Common law procedure. Moore's Appeal, 34 Pa. 411, (1859). The death of a partner no longer exempts his estate from lia- bility for the firm debts where his co-partner is solvent, nor does it merely shift the burden of proof upon his representa- tives, who can exempt his estate by proving the surviving partner's solvency ; but the deceased partner's estate is liable in the first instance, at the creditor's option, for the amount of his debt. 382 Pt. 2, Ch. 5. Business Contracts. §88. Deceased partner's estate liable for firm debts. B, C & D, partners, employed nephew A, at wages, for 17 years. B died ; C & D paid amount due A for services.— B's estate liable for its third. Moist's Appeal, 74 Pa. 166, (1873). Deceased partner's estate liable for firm debts in first instance. B took C into partnership. C became joint owner of the assets of the busi- ness, and jointly liable for B's debts. B & C gave D a note for his claim of $2,666.64, C sold out his interest to E, who succeeded to C's liabilities. F bought out B, succeeding to his liabilities, and continued the business with E. E settled with A, to whom D had endorsed the note, by giving four notes of E & F, also signed by B & C, for the original note, which was to be surrendered when the four notes were signed by G. He never signed, and A proved the debt against F's estate. Two of the notes were allowed and paid, but the others were contested. — Judgment for A. He was not bound to exhaust the firm's assets in E's hands before proceeding against F's estate. B's debt became a joint obligation upon his taking C in partnership, and con- tinued joint through the various changes. Silverman v. Chase, 90 111. 37 (1878). A subsequent statute enacts : " That in no case * " on any joint contract * shall the courts * entertain " any plea or defence upon the part of any heir * ex- " ecutor or * administrator that one or more of said * " contractors * has deceased since the commencement " of * suit; but the same shall be proceeded into " judgment and execution against the estate of said " decedent, as though said suit * had been com- " menced against said decedent alone. "^ This act was not limited in its effect to the mischief of a joint action ; which would be cured by giving the plaintiff a new suit against the deceased partner's rep- resentatives. For why put the plaintiff to the delay and expense of another suit ? If no action corresponds to the right, let the courts frame actions to enforce the rights which they establish.* The process of suggest- 383 §88. Business Contracts. Pt. 2, Ch. 5. ing the death of a party on the record, and of substi- tuting his representatives, is familiar practice, and dispenses with the circuity of an additional suit. The embarrassment of the situation was imaginary, and the joint suit proceeds, as if no defendant had died.® Similar enactments were made in different States, to preserve the remedy against the estate of a partner, if he died before suit had been brought, or judgment obtained against him.' In equity, joint process against both is feasible, and the claim no longer survives against the living part- ner even as a principal with the decedent's estate as surety, but founds a direct remedy against both.^ 4. Act of March 22, 1861, P. L., 186. 5. "It shall be the duty of the Supreme Court, at their sessions in " banc, from time to time, to devise and establish, by rule of court, " such new writs and forms of proceedings, as in their opinion shall be " necessary or convenient to the full, direct, and uniform execution of "the powers and jurisdiction possessed by the said Court, or by the " Courts of Common Pleas, District Courts, Orphans' Courts, or Re- " gisters' Court." Act June 16, 1836, ? 3, P. L., 789. IVlr. Justice GORDON : " If any serious difficulty should be found to " occur from the ordinary forms of the writs now in use, this Court " can, under the 3d section of the act of June, 1836, provide such new " or modified forms as may be required to meet the exigency. We " think, however, this will not be found necessary." Dingman v. Amsink, 77 Pa. 118 (1874). 6. A partner's death after suit brought is no bar to a joint judgment against his administrators and the surviving partner. A, the holder, brought as- sumpsit against the makers of a joint promissory note, signed with the firm name of B & C. After service upon both parties, B died, and his administrators were substituted. Judgment against B'sadministrators and C— Not error. Act March 22, 1861, P. L., 186, not only recog- nized the several liability of joint debtors, and provided a separate re- medy after joint process, but worked out the independent remedies through a joint judgment against the survivor and the deceased's es- 384 Pt. 2, Ch. 5. Business Contracts. §88. tate. Sci. fa. snr mortgage, or to revive judgment, issues against living and the representatives of the deceased defendants. Act June, 1836, §3, P. L., 786, would give a new writ, if required. Execution againsi a decedent's estate is regulated by Act 24 February, 1834, and if his real estate is sought to be charged, the widow and heirs must be brought in by §34. Dingman v. Amsink, 77 Pa., 114 (1874). 7. " The representatives of one jointly bound with another for the pay- " ment of any debt or for performance or forbearance of any act or for " any other thing, and dying in the life-time of the latter, maybe " charged by virtue of such obligation in the same manner as such re- " presentative might have been charged, if the obligors had been " bound severally as well as jointly : Provided, that the plaintiff shall " first pursue the surviving debtor to final judgment and execution." Rhode Island Public Stats, of 1882, §28. " In any action founded on any * contract or liability of co-partners, " it shall be lawful to sue any one or more of the parties liable on " such * contract or liability ; and separate suits may be brought "against the representatives of such of the parties as have died, or " joint suits may be brought against the representatives of such de- " ceased party and those who are alive and bound therein." Miss. Re- vised Code of 1880, ?ii34. " The representatives of one jointly bound with another for the pay- " ment of a debt, or for the performance or forbearance of anyone act, " or for any other thing, and dying in the life-time of the latter,may be " charged by virtue of such obligation, in the same manner as such " representatives might have been charged, if the obligors had been " bound severally as well as jointly," N. J. Revision of 1709-1877, ^3. " All joint obligations and promises, are made joint and several, and " the debt or obligation shall survive against the heirs and personal " representatives of the deceased obligors, as well as against the sur- " vivors, and suits may be brought and prosecuted on the same, " against all or any part of the original obligors, and all or any part of " the representatives of deceased obligors, as if such obligations and " assumptions were joint and several." Tenn. Code of 1884, ?3486. " If one of the several obligors or promisors jointly holden by a con- " tract in writing dies, the representatives of such deceased person, " and the surviving obligors or promisors, may be charged by virtue " of such contract in the same manner as if it had been joint and sev- " eral." Vt. Revised Laws of 1880, §935, After proceedings against firm, as if insolvent, the Statute adds the 385 88. BUSINESS CONTRACTS. PT. 2, CH. 5. proviso: " Nothing herein invalidates the right of claimants to re- " cover from the surviving partner, or the estate of the deceased part- " ner any balances due them after the partnership property is exhaust- " ed." Maine Revised Stats, of 1883, p. 571, §3. " Whenever two or more persons are sued as joint defendants, and " on the trial the plaintiff fails to prove a joint cause of action against " all, but proves a cause of action against one or more of the defend- " ants judgment may be rendered against him or them against whom " the cause of action is pending." Minnesota Laws 1873, c- 87 ; Gen. St. 1878, c. 66, §266 ; Wisconsin Revised Stats, of 1878, ^2885. " In case of the death of one or more of the joint obligors or prom- " isors, the joint debt or contract shall and may survive against the " heirs, executors and administrators of the deceased obligor or prom- " isor as well as against the survivors." Kansas Compiled Laws of 1885 (1076), § 2, " When all the obligors or promisors shall die, the debt or contract " shall survive against the heirs, executors and administrators of all the " deceased joint obligors and promisors." lb. (1077) §3. " Where two or more persons are jointly bound by bond, promis- " sory note, or any other writing, whether sealed or unsealed, to pay " money or do any other thing, and one or more of such persons shall " die, his or their executors and heirs shall be bound in the same " manner and to the same extent as if the person so dying had been " bound severally as well as jointly." M'd Revised Code of 1878, ?5i. " If a joint obligor be dead when the suit is brought, his representa- " five may be sued." lb. ^53. " If either of the obligors, against whom a joint action shall be " brought, shall die pending the same, the plaintiff may suggest such " death, and the court shall cause the suggestion to be entered of " record, and shall direct the clerk to docket an action as of the same " term in which the suggestion is entered, in the name of the plaintiff " against the obligor so dying ; and in such action the same proceed- " ings shall be had to make the executor or administrator of the de- " ceased obligor a party thereto, as if the original action had been " brought separately against all the obligors." lb. ? 54. 8. The remedy in equity corresponds to the right. A sued B's executors for B & C's debt, and, upon C's administration of B's estate, proved for £5,124, 13s 4d. A dividend of 5 per cent, was declared, but before payment A sued executors of C, testifying that C was B's partner. Defence: A's testimony incompetent against deceased's adversary; 386 Pt. 2, Ch. 5. Business Contracts. §89. proof against separate estate res adiudicata, and bars recourse to sur- viving partner.— A competent. Proof did not extinguisli claim, but riglit against C's estate preserved subject to his separate creditors. In re Hodgson ; Beckett v. Ramsdale, 31 Ch, D. 177 (1855J. §89. A statute of Pennsylvania severed the judgement, so that it binds the representatives of the deceased, as well as the surviving, partner. The death of one partner after judgment against both, releases his personal estate from liability for the plaintiff's claim, although it has been liquidated and established by the judgment.' A scifa. would not lie against the personal representatives of the de- ceased judgment-debtor, although it was suggested in the writ that the surviving defendant was insolvent, and that the plaintiff had no remedy.^ In Pennsylvania, an act was passed to rectify the procedure and make it conform to the right : Section ^. "Where a judgment shall hereafter be " obtained against two or more co-partners * the death " of one or more of the defendants shall not discharge " his or their estate or estates, real or personal, from "the payment thereof; but the same shall be payable " by his or their executors or administrators, as if the "judgment had been several against the deceased " alone." Section 5'. " Where a judgment shall be hereafter " recovered against one or more of several partners, 387 § 89. Business Contracts. Pt. 2, Ch. 5. " without any plea in abatement, that all the parties " to the instrument or contract, on which the suit is " founded, are not made parties thereto such judgment " shall not be a bar to a recovery in any subsequent " suit or suits against any person or persons, who " might have been joined in the action in which such "judgment was obtained, whether the same shall be " obtained amicably or by adversary process."^ Other States have also provided that a judgment shall bind a partner's estate in spite of his death.* 1. Walter v. Ginrich, supra §83, n. 3. There is no reason for any dis- tinction between the deceased partner's real and personal estate. The judgment should survive against both or against neither. Common- wealth V. Mateer, 16 S. & R. 419, Pa. (1827). 2. Death of partner after judgment discbarges bis personal estate, tbough lien continued on his reai estate. Sci. fa., in 1845, by Pa. for A's adminis- trator against administrators of C, surety on administration bond, who had died since judgment in 1824, against B & C, which was recovered by creditors of B for his devastavit. B, the principal in the bond, and sole surviving obligor, was insolvent. — C's personal estate discharged by his death, and lien against his real estate outlawed. Stoner v, Stroman, 9 W. & S. 85, Pa. (1845). 3. Act April II, 1848, P. L. 536. 4. "Joint Debtor DYING, estate How liable." "When two " or more persons are indebted on any joint contract, or upon a judg- " ment founded on a joint contract, and either of. them dies, his estate " is liable therefor, and the amount thereof may be allowed by the " commissioners, as if the contract had been joint and several, or as if " the judgment had been against him alone." Minn. Stats, of 1878, ?ic); Wis. enactment substantially the same. Revised Stats, of 1878, "If any person jointly bound with another in any contract or by " judgment, shall die in the life-time of such other obligor, his heir, " devisee, or representative may be charged in the same manner as if " the contract or judgment had been separate against the decedent." Kentucky, Gen'l Stats, of 1881, §8. 388 Pt. 2, Ch. 5. Business Contracts. §90. "If any of the obligors against whom a joint action was brought, " and judgment obtained thereon, shall die after judgment, the plaintiff " may issue a scire facias on said judgment against the executors or " administrators of the deceased defendant, and such judgment shall " be had on the scire facias as if the judgment had been rendered in a " separate action." Maryland Revised Code of 1876, §55. " When two or more persons shall be indebted on any joint contract, " or upon a judgment founded on a joint contract, and either of them " shall die, his estate shall be liable therefor, and it may be allowed by " the commissioners, as if the contract had been joint and several, or " as if the judgment had been against him alone, and the other parties " to such joint contract may be compelled to contribute or to pay the " same, if they would have been liable to do so upon payment thereof " by the deceased." Mich. Annotated Stats, of 1882. p. 1543, ?ic)o6. §90. The statutes recognize the several liabilities of the part- ners underlying the joint form of the contract, and make the procedure conform to the liability which it enforces. The judgment stands against the defendant, and, as he is liable for the whole debt individually, the co- partner is not prejudiced by limiting the judgment to the defendant. The release of the co-partner by merger was a fiction of procedure. Nothing but sat- isfaction of the claim exonerates him, and he cannot complain, because he is compelled to pay his debt. The cause of action is severed with the judgment which establishes it.' The technical crochet, how- ever, has taken firm hold of the Professional mind, and it is difficult to eradicate the notion that a part- 389 §90. Business Contracts. pt. 2, Ch. 5. ner has a right to repudiate his debt in consequence of the creditor's ligitation with his co-partner.^ The release of a joint debtor, or a compromise with him, enured to the benefit of his co-debtors, on the joint contract theory, and in analogy to the procedure by which the claim would be enforced.^ Statutes have also been passed to extirpate this outlying vestige of the conceit.* The fiction, to maintain itself, creates an artificial course of reasoning, which the Profession calls legal reasoning, as if the law had appropriated a special in- tellectual processs for its practitioners. The creditor asks for payment from his debtors, and the Profession tells him a judgment, or, in other words, the entry of his claim on the record of a court, against one of his debtors, is payment by the others. The creditor wonders how the procedure, which is but the means to procure payment from several debtors, who are each admittedly liable for the whole amount, can pervert the lawyer's faculty of reason, and make him think he is talking sense. The Profession is like the parent who, when his son asked for bread, gave him a stone. The parable is an answer to the casuistry which, in the name of justice, substitutes a sham for preform- ance. 1. statutory severance of judgment severs ttae canse of action. A sued ex- ecutors of B, co-maker with C & D of promissory note for $i,2oo. Defence : B co-surety witii C for D, and no equity against B's estate, although C & D insolvent.— Recovery. Act 1848 made joint judgment- debtor's estate liable, and cause of action severed to correspond with judgment. Bowman v. Kistler, 33, Pa. 106 (1859). 2. Supra §77, n. 3. 390 Pt. 2, Ch. 5. Business Contracts. §90. 3. Release of non-served partner extinguishes judgment against co-partner for firm debt to extent of partner's quota. B & C, partners, in Indiana, con- tracted debt to A, in Philadelphia. In action brought in Pennsylvania, judgment taken against B for want of appearance. Return: "Niliil habet " as to C. Subsequent suit against C in Indiana, and A released C. B's defence: Release operated as satisfaction of judgment against him. — Release extinguished moiety of judgment-debt. Greenwald v. Kaster, 86, Pa. 45 (1878). Partner and firm creditor may stipulate that release shall operate not to discharge co-partner. A released B and C, on payment of part due by B, C & D, partners, but reserved right against D, whom he subse- quently sued for balance.— Recovered. Apart from Civil Code, 81543, A might release B & C. Northern Ins. Co. v. Potter, 63 Cal. 157 (1883). Vide note to Bailey v. Edwards, 116 English Common Law Reports 761, p. 775 (1866). 4. Pennsylvania Act of March 22, 1862, §§1-5, P. L. 167 ; Kansas Com- piled Laws of 1885, Release (1079), ?5 ; Compromise (3626-gi 1-3) §§ 1-4 ; Michigan Annotated Statutes of 1882, §?7783-6 ; California Civil Code ?I543; Minnesota Statutes of 1878, ^37; Mississippi Revised Code of 1880, ?ioo3; New Jersey Supplement to Revision of 1877-86, U1-4; Ohio Revised Statutes of 1884, 8?3i62-5 ; Rhode Island Public Statutesof 1882, §2i-6; South Carolina Laws of 1883, ??i-3 ; Vermont Revised Laws of 1880, ??936-7; Virginia Code of 1873, §§14-15. N. Y. Code of Civil Procedure, s. 1272, 1942. Release don't bar suit against non-released partner. Pour partners made note for $30,737.50. Three confessed judgment to payee A who released two upon payment of $3,000. Third insolvent. A sued executors of fourth. Demurrer: Code (1272) requires action against " ail the joint debtors" and "upon the same demand" composition (1942) must ex- pressly release partner from " all liability incurred by reason of his con- nection with the partnership." — Overruled. Language of Code not taken literally, but comprehensively in order to abrogate technical inci- dent of procedure. Harbeck v. Pupin, 123 N. Y. 115 s. c. 25 N. E. 311 (1890). The release was given full effect, and the released partners exonerated from any liability on the claim. But the non- released partner remained liable for more than his quota. He could recover the excess from the partners released, and thus the creditor would enforce his claim indirectly against them in spite of his release. 391 §Qi. Business Contracts. Pt. 2, Ch. 5. §91. The creditor was put to his election between a joint and a several remedy, but he is, on principle, entitled to either, or both, for the satisfaction of his claim. The distinction between ajointandajointand several contract has been almost obliterated. The Supreme Court of Pennsylvania, at one time, said that there were no more joint contracts, and that all joint con- tracts had become joint and several.^ This statement, perhaps, is not strictly accurate. The claim of co- obligees, whether partners or not, is still joint. " If a promise is made to A & B jointly, it would " seem not correct to say that there is a promise to " each of them ; and therefore a declaration by A alone, " alleging the promise to have been made to him, " without naming B as co-promisee, is falsified by " proof that the promise was made to both of them " jointly. In other words, there is a variance between " the declaration and the proof .^ It is now possible to recover against one upon proof of a promise by two. " In an action on contract, if one is sued alone, " where another ought by law to have been made co- " defendant with him (as if A is sued alone, on a joint " obligation or promise made by himself and B); ad- " vantage can be taken of the non-joinder of B only " in abatement* for the obligation is ^'s act, though " not his sole act; and the promise is his, though not " his sole promise. The fact then, that B is a co- 392 Pt. 2, Ch. 5. Business Contracts. §91. " obligor, or co-promissor with A, does not prove that " the obligation, in the one case, is not /4's act, nor " that A did not promise, in the other, and therefore " does not disprove the declaration.* If A & B make " a joint promise, it is nevertheless true, that each of " them promises; and if so it follows that a declaration " on the promise, against A alone, alleging that he " promised, is not disproved by the admission, that B " ^xomsed jointly with him."^ But it is impossible to recover against one upon proof of his individual promise when sued in con- junction with another,* unless the Common law has been altered by Statute.^ Even if the statement were true in its entirety, that all joint contracts had become joint and several, the change would still not meet the requirement of the partnership promise. The joint and several is fully as technical as the joint contract^ and comes but little nearer an adequate expression of the firm undertaking. The difficulty of the subject arises from the Common law abstraction of a joint obligation. In a common sense view, if three promise to pay one hundred dol- lars, there is the promise of A, the promise of B, and the promise of C, to make this payment. Each guar- antees to the promisee the receipt of the sum. The Common lawyers were not satisfied with so simple an explanation, but conjured up the abstraction of a sin- gle promise made by the three, and different from a promise by each of the three to pay the single sum. Owing to this substantive difference between the joint obligation and the separate obligations of the promis- 393 §91. Business Contracts. Pt. 2, Ch. 5. sors, it was held that the proof of a joint contract in a suit against one established a variance, and put the plaintiff out of court. In consequence of this theory the whole claim was merged in a judgment against one of several debtors, and the co-debtors were thereby released, because there could be but one judgment upon one and the same obligation. A release of one co-debtor by contract had the same effect, and for the same reason. The same mental process is observed among the civilians, and the best definition of the joint contract, as a common feature of both systems of jurisprudence, is given by Ribbentrop, namely ; " A unitary obli- gation with a plurality of subjective relations."® The theory of a joint and several contract retains this ab- straction in its integrity, and simply adds the separate promise of each partner as an additional and alterna- tive security. These separate promises are alternative to each other and to the joint promise. If the plaintiff sued one obligor on a joint and several contract, the defendant could not plead in bar the non-joinder of his co-obligors, because of his separate promise, but if, after judgment, the plaintiff failed to obtain satis- faction, the others were released, on the ground that the plaintiff had made his election. The result is that where the plaintiff, out of abundant caution, has taken the promise of three to pay him the sum, the fanciful interpretation put by the law upon his con- tract deprives him of the security for which he bar- gained. It is no answer to say that he might have sued them all jointly, for that is to make a substantive 394 Pt. 2, Ch. 5. Business Contracts. §91. right depend upon the form of procedure, and why should he be compelled to sue jointly when he has, in fact, a contract with each. In a suit against one, the defendant's only privilege is to plead in abatement the non-joinder of his co-obligors, which does not effect the substantive right. If the first defendant has waived that privilege, the second defendant would lose it as to the first one, because its purpose had been already accomplished in the judgment against the first.' The difficulty is by no means insuperable. The law does, in the case of torts, recognize and enforce an aggregate of obligations for the same performance; co-tort feasors are liable jointly, separately, and suc- cessively, and all that is necessary is to apply to con- tracts the principles which govern in the case of torts. The theory of the law will then conform to the nature of the transaction. The judgment on a firm claim against a partner no longer prevents a second judgment for the same claim against his co-partner. The liability of each partner for the entire claim is now recognized in the procedure, as well as in the execution, and a several judgment may be entered against each in the joint action.^ I. Change of note from joint to joint and several ioifflaterial. Adminis- trator of A sued B & C, as matcers of a joint and several promissory note. B was served, but C was not. B's defence : Note originally joint, and the words of severalty, " or either of us " interlined after signature. — Recovery. Alteration immaterial, as Acts'30 and '48 have converted joint obligations into joint and several obligations. Miller v. Reed, 27 Pa. 244 (1856). 395 §91. Business Contracts. Pt. 2, Ch. 5. 2. Gould on Pleading, C. V. ?. 114 n. 13. Separate judgment good though claim joint, A sued B & C, on notes signed with firm name. C's defence: B gave notes for his individual debt to A.— Judgment against B alone. A appealed. — Affirmed. Se- parate judgment good against B, although claim joint. Roberts v. Pepple, 55 Mich. 367 (1884). " If all the defendants have been served, judgment may be taken " against any or either of them severally, when the plaintiff would be " entitled to judgment against such defendant or defendants, if the ac- " tion had been against them, or any of them alone." Civil Code of Oregon, § 59, sub-division 3. Identical provision ; Wisconsin Revised Statutes of 1878, §2884, sub iz. Joint contract covers several claims. A sued B, C & D, trading as B & C, for merchandise. C claimed that he contributed capital and conducted business for his infant son, D. A dismissed action as against D, and court, on C's application, against him. — Error. C liable as partner with B. Suit on joint contract made by three don't prevent judgment agaiast two of them. Miles v. Wann, 27 Minn. 56 s. c. 6 N. 417 (1880). 3. Gould on Pleading, Ch. V. § 114. 4. This is emphatically true in partnership on account of each partner's liability being dependent upon that of his co- partner's. Liability among three includes liability between two of them. A brought account against B & C, as his co-partners. C obtained non-suit, because not a partner. Jury found: i. Partnership between A& B ; 2, Firm property appropriated by B. Reference to state account. Report showed balance with interest due A, which court confirmed. After motion for new trial, court with A's consent, reduced judgment, and refused new trial.— On error. Issue includes partnership between A & B. But item charged B for C's debt outlawed. B had charge of books, but A could have demanded payment. A's claim of $162.12, not proved. Bill should be amended to include fixtures in account, as firm property, though not stock, and plaintiff should file remittitur instead of court's reducing judgment. Reversed. Chalmers v. Chal- mers, 81 Cal. 8i, s. c. 22 P. 395 (1889). The account calls for a settlement between three, and the adjustment requires them as parties. To proceed without the 396 Pt. 2, Ch. 5. Business CONTRACTS. §91. third would prevent an ascertainment of the true balance. A partial adjustment between two is not feasible, and would leave the account unadjusted. If the third were a partner, the action could not proceed without him ; if he was not a partner, the action was improperly brought. No amendment could substitute a new and independent action. Dismissal of suit against one partner ends court's jurisdiction over firm. A sued firm and its four partners, but subsequently dismissed suit against three partners and obtained judgment against fourth, whose appeal was dismissed. — Error. No jurisdiction of firm. Suing indivi- dual partners shows Common law remedy, and dismissal ended suit. Franli v. Tatum, 87 Texas 204 s. c. 25, S. W. 409 (1894). ;, Proof of separate cause of action in joint suit. B & C, stock-brokers. B, in B & C's name covenanted to indemnify A, if he took D's note with collateral, by buying the collateral at a fixed prize on D's de- fault. A sued B & C, though C not liable, as transaction not within scope of the business. — Judgment against B. No variance between allega et probata: Pub. St. IVlass. C. 192, §1011. Taft v. Church, 162 JWass. 527 s. c. 39 N. E. 283 ; 41 N. E. 67, (1895), Several liability enforced in joint action. A obtained verdict against B, C, et al., for effecting sale of their land, but B was dead at the time, and his executors had been substituted as defendants. — Judgment for B C, et al., notwithstanding verdict. — New trial. Code permits judg- ment in joint action against defendants upon a separate claim. Fisk V. Henarie, 14 Or. 29 s, c. 13, P. 193 (1886). 6. " Das Rbmische Recht anerkennt die Moglichkeit mehrfacher direc- " ter subjectiver Beziehung einer Obligation." Zur Lehre von den Correal-Obligationen, ? 5 ; von Dr. GEORG Julius RIBBENTROP, 1831. " Da sich die Correalobligationen als einziges objectives obligatorisches Rechtsverhaltniss, aber mit JWehrheit der subjectiven Beziehungen." Ueber Litis Contestation, ? 52, a. von Dr. F. L. KELLER, 1827 ; Prof. Dr. PUNTCHART, Kritische Vierteljahrsschrift fiir Gesetzge- bungund Rechtswissenschaft, 29 Band, 513, 514 (1887). Die Natur der Correalobligationen, von Dr. HERMANN FITTING ; Einleitung, § 2, 1859. Lehrbuch der Pandecten, ^213, von L. ARNDTS, R. v. ARNES- BURG, 13th edition. 1886. 397 §92. Business Contracts. Pt. 2, Ch. 5. Die Correalobligationen, p. 6, et seq., von JOS. LEONZ WEIBEL (1873)- Institutes of Justinian, i vol. 472-477. By J. B. MOYLE, B.C.L., M.A. (1883). See, in opposition to the theory : Las Obligations en droit Roman ; Par P. VAN WETTER, 2 vol. 290, ?54 (1882). Roman Law, 2d edition, pp. 551, etseq. By W. A. HUNTER, M.A., LL.D {1885). 7. Kendall v. Hamilton (dissent of Lord PENZANCE), supra §77, n. 3. 8. Claim not merged by partners confessed judgment and subsequent judg- ment bound co-partner. A sued B & C. B confessed judgment, and during the term, judgment rendered against C. C died, and D a se- parate creditor proceeded against administrator, widow and heirs to charge his land. A intervened, and claimed priority for his lien. E's bill to subject B's land to liens, considered at hearing. No firm assets. —Assets marshalled. A must exhaust his resources against B's estate before taking C's land. Pitts v. Spotts, 6 So. E. 501, Va. (1889). Would the judgment be marshalled in favor of a separate creditor ? Yes. The firm creditor would be required to ex- haust the co-partner's estate first, in order to enable the se- parate creditor to obtain satisfaction out of his single fund. A rule of court is sufficient to neutralize a merger. Several judgments against defendants if in a joint action. A sued B & C. C let judgment go by default for whole claim and paid half the debt, but B took defence: Cause of action merged. Judgment for balance. Order XIV., rule ;, enables plaintiff to enter final judgment against one, and issue execution upon the judgment, without merging, his cause of action against the other defendant. Weall v. James, 68 L. T. R. 515 (1893). §92. Lord Mansfield demonstrated that the joint contract was several, by permitting a defendant to plead in abate^ ment the non=joinder of his co^prommissor, and by deny= ing that his non-joinder was a bar to the several action. How did the change come about which converted 398 Pt. 2, Ch. 5. Business Contracts. §92. the joint contract of the Common law into the joint, though severable, contract of partners with third per- sons? Prior to Rice v. Shute,* a plea in abatement could not be sustained in assumpsit, though allowed in debt, and proof of a joint contract put the plaintiff out of court. Much less was the failure to plead in abatement a severance of the joint contract into several contracts, so as to enable the plaintiff to recover upon one instead of upon all, as a unit without parts. The change came about by following the course which had always prevailed in the action of debt. There non-joinder of any one liable with the defen- dant was pleadable in abatement. The debt being the result of an obligation, was viewed apart from its source in contract, and, if demanded from the debtor, should be paid by him, unless he saw fit to turn the plaintiff's suit into a means of enforcing contribution from his co-debtor in advance, instead of by a subse- quent suit. The absence of a plea in abatement indi- cated a willingness to rely upon a subsequent suit for contribution, and the judgment merged the cause of action, which was always single. If only one partner was sued in assumpsit, he could not plead his co-partner's non-joinder in abatement before Rice v. Shute, in 1770, because a joint contract was a totally distinct cause of action, and the plea went to the merits. It was bad, as amounting to the general issue, and should be a plea in bar. Proof of the joint contract would defeat the plaintiff's recovery. A joint contract is a unit without parts, and not an 399 §92. BUSINESS Contracts. Pt. 2, Ch. 5. aggregate of parts. Though the contract were joint and several, suit against one would be an election which would make the contract several and preclude any subsequent action upon it as joint. Lord IVlANS- FiELD's adoption of a plea in abatement broke down the Common law notion of a joint contract, and proved that it contained an aggregate of contracts. The part- ner might, in the first instance, make the plaintiff, be- cause he had dealt with the firm, join all its members. But the firm is not a person and makes no contract. It is the partners who contract, and each partner con- tracts to pay the whole debt. Unless a plea in abate- ment is put in, the plaintiff may proceed against any partner and recover judgment on his contract. This rule needed further development, for while Lord Mansfield clearly indicated the principle on which the theory of contracts was to be remodeled, the de- cision in Rice v. Shute itself was merely an entering wedge. If the reasoning of Lord Mansfield is ad- mitted, it follows, as an inevitable conclusion, that a co-partner may not plead in a subsequent suit the judgment in bar, because it merged only the contract of the defendant in the original suit, or in abatement, because he cannot give the plaintiff a better writ. I. Supra J 80, n. I. 400 PT. 2, CH. 5. BUSINESS CONTRACTS. §93. §93. Chief Justice Marshall carried out the principle, and held that the judgment against a partner was several, and did not merge the claim against his co^partner. Chief Justice Marshall carried forward tlie revolu- tion in the theory begun by Lord Mansfield. The claimant, who brought a separate suit against one partner, on a firm contract, and obtained judgment, subsequently brought a joint suit against both.' Mar- shall decided that the judgment on the contract of one partner could not merge the contract of his co- partner, unless the judgment included the co-partner and bound him. I. Judgment against partner does not merge firm contract, but enforces part- ner's several liability on it. A, who sued B singly on a note made by B & C, trading as B, and obtained judgment, sued B & C jointly on the note. C pleaded the judgment In bar. — Judgment for A. Judgment on B's contract did not merge C's contract. Sheehy v. Mandeville, 6 Cranch 253 (1810). The judgment against a partner on a firm claim, does not convert it into a separate claim. The contract was with the firm, and not with the partner in his individual capacity. 401 §94- Business Contracts. Pt. 2, Ch, 5. §94. The modern procedure admits the several causes of ac= tion, and so far from forcing a junction in a single action, requires a new action against partners who were not served in the original suit. The cause of action is no longer joint. The prac- tice shows that the old fiction has been superceded and replaced by a new principle. If service had been effected upon some partners, the former process was to bring in the others by an alias or a pluries writ, in order to make them parties to the original proceeding, and in order to enter a single judgment against all.' Now that the judgment does not bar subsequent pro- ceedings upon the contract, it was conceived that an alias or pluries should bring in the other partners in order to let them into a defence under the original process. On the contrary, a new writ issues, as if based upon an independent cause of action.^ The separate suit shows that the firm contract is severable and not joint. I. How did the plaintiff declare when all the partners were not served ? He declared against those who had been served. The declaration set forth the cause of action, and the judg- ment was based upon the declaration. If the declaration was against more defendants than the judgment," or the judgment against more defendants than the declaration, i" the error was fatal, except under statutory provisions." a. Judgment against three and declaration against six, bad on error. A brought action of debt on bond against six. By sheriff's return, three 403 Pt. 2, Ch. 5. Business Contracts. §94. were summoned. Declaration general against all, and judgment by default. Amendment and judgment entered against three. — Error. Judgment on joint claim couldn't stand, except against all. Declara- tion should be against three who were summoned, with averment of process against rest, who could not be found. Latshaw v. Steinman, II S & R. 357, Pa. (1824). b. Judgment against two, with declaration against but one, bad on error. A issued capias against B & C, but sheriff failed to find C. Declaration against B, and alias against C, who also entered bail. Reference to arbitrators, who made award for A. — Judgment on award reversed, because declaration was against B, and no claim on the record against C. Stewart v. Abrams, 7 Watts 448, Pa. (1838). If judgment were taken against a non-served partner, sued with his co-partners, he might impeach its validity. He would have the right, and a court would recognize his standing, al- though the judgment had been satisfied. If not, the judgment would become res adiudicata, and charge him in the settlement with his co-partners. As overruling non-served partner's motion to reverse judgment against himself and co-partner would be binding on a settlement of the partnership account, judgment, though satisfied, reversed and verdict set aside. D sued A, B & C, partners, and served B & C, but not A. Judgment for $1,374.94 against defendants. A moved to reverse, because not served, had not appeared or received notice. Overruled. Writ of error. B paid and satisfied judgment and asked for dismissal.— Judgment re- versed with costs, and verdict set aside. Though cause of action ceased to exist, and nothing for judgment to operate on, yet its affirm- ance would be res iudicata between A and his co-partners, and make him contribute in settlement of partnership account. Joint judgment not justified without service on all. Ferguson v. Millender, 32 W. Va. 30 s. c. 9 So. E. 38 (1889). The judgment must correspond to the claim or it will be stricken off the record. Judgment taken without service of declaration upon both defendants stricken off. A sued and served B & C, and filed statements of claim, but served only B with a copy. Judgment against B for want of affidavit of de- fence. B took rule to show cause why judgment should not be entered against both, or stricken off against him.— Rule absolute. A bound to serve C with statement, or leave copy with Prothonotary, to make 403 §95- Business contracts. Pt. 2, Ch. 5. judgment regular and conform to the claim. Carson v. Carson 25, Weekly Notes 358 Pa. C. P. (i8go). c. On a declaration against defendants, judgment may be entered against two served. A sued and declared against B, C & D on a firm contract. D not served. Evidence failed to prove D a co-contractor. Judgment obtained against B and C, who appealed. — Affirmed. A variance at Common law. Code permits judgment against any defendants served, who are proved liable, and by inference against those served when others are not proved liable. Pruyn v. Black, 21 N. Y. 300 (i860). Judgment against served subsequently extended to ooO'Served partner. A sued B et al. All served except C. Judgment against partners served. Subsequently C summoned to show cause why he should not be bound by the judgment. Defence: Joint debtor obligation did not include partnership liability. — Judgment enforced against C. Sawyer v. Arm- strong, 47 P. 391, Colo. (1896). 2. Judgment against partners served, and second action against co°partners. A sued B, C& D, joint makers of a note. B was served, but C and D returned " not found." Declaration and judgment by default for amount of note and interest against B. Alias and pluries summons against C & D, who averred material alteration, by adding "with interest" after note was made. Evidence to show defendant's assent excluded. — Error. New suit should be brought against non-served de- fendants. Statute contemplates judgment in first action before second brought. Myers v. Nell, 4 W. N. 229, Pa. (i877). After judgment against partners served, "a new action may be brought against the other members on the original cause of action." Iowa Code of 1884, §2553. §95. The several liability of a partner, so long repudiated, is now a recognized constituent of the firm liability, and there is no joint liability independent of it. The joint contract at the Common law was not made up of the partners' several contracts, but was 404 Pt. 2, Ch. 5. Business Contracts. §95. independent of, and not connected with tiiem. The judgment confessed for the whole sum, by a single partner against himself, or recovered against him, would not merge the firm debt and prevent a joint action.' The judgment would be several, unless given in the course of a joint suit, and would not, therefore, be co-extensive with the firm debt.^ The separate con- tract was a different undertaking, not included in the general contract of the firm. The relinquishment, therefore, of the joint contract furnished a considera- tion for the several contract of a partner,^ At present," the opposite is true. The several obligation of a part- ner is no longer a separate and independent liability, apart from the joint obligation of the firm, but forms part of that obligation, and is included in it.* The promise of a creditor to release the outgoing and look to the continuing partner for payment, is not binding for want of consideration. The creditor had the sev- eral liability of the continuing partner already in the joint obligation.^ In fact, every joint contract is an aggregate of the several contracts of the partners. 1 . Judgment against single partner for firm debt is several, and will not stand for firm debt. A sued B & C, partners, before magistrate. Service effected only upon B, and judgment rendered against him. On appeal, trial ended in verdict and judgment against B. — Reversed. Judgment erroneous. Bnotaparty to suit, wliich was joint against B & C. Craig v. Smith, 10 Colo. 220 s. c.i; P. 337,(1887). 2. The partner represents his co-partners, or the joint title, and the judgment recovered against him, entitles the creditor to seize and sell the firm property. The question is: Does the execution correspond to the judgment, or to the claim .' In an adverse judgment, the declaration must be against the part- 405 §95- Business Contracts. Pt. 2, Ch. 5. ner served, although for a partnership debt.* The judgment would appear only against him, and if it included the co-part- ner, would be wrong.'' A confessed judgment by one partner is void as to his co-partner, who may have the entry against him stricken off the record." The claim, and not the judgment upon it, is the groundwork of the execution. The judgment in Ross V. Howell'^ entitled the creditor to proceed, by execution, against the firm assets. The co-partner had no grievance, be- cause his claim was for a firm obligation, and not for the separate debt of the partner. Had the claim been for the indi- vidual debt of the partner, the co-partner could apply to open the judgment, and be let into a defence, in order to disprove a debt due by the firm, and rectify the cause of action, even after it had been merged in a judgment. He never had his day in court to make his defence to the claim. But as the judg- ment does not bind his separate estate under the Pennsylvania practice, and as the partner may admit a debt against the firm, his confession of judgment will be conclusive that the firm owes the debt claimed by the plaintiff. a. Latshaw v. Stelnman, supra §94, n. a. b. Stewart v. Abrams, supra §94, n. b. c. I{ partner confessed judgment against firm, co°parfner may bave bis name stricken off, in order to prevent execution against his separate estate. C & D were partners. C, in an amicable action, confessed judgment against himself and D for a firm debt, and in favor of A & B. Upon the affi- davit of D, the court below set aside the judgment, on the ground that one partner had no power to confess judgment against the firm, and that it was void as to D, and therefore void as to C also. On writ of error, it was argued that one partner might employ counsel, and au- thorize him to confess a judgment against the firm. Was a warrant to confess, anything but an equivalent? — Order of court below, setting aside the judgment, reversed, and the name of D ordered to be stricken out of the record, so that the judgment should remain against C alone. C had transcended a partner's implied power. Bitzer v. Shunk, i. W, & S. 340, Pa. (1841). d. Judgment against partner for firm debt binds firm, but not co-partner's separate estate. B, the co-partner of C, gave A a judgment note for a debt of B & C. A entered up the judgment, and levied on firm pro- 406 Pt. 2, Ch. 5. BUSINESS Contracts. §96. perty. C claimed that execution should correspond to the judgment which B had confessed. — C could not prevent A from taking the firm stock in execution on his judgment against B. Ross v. Howell 84 Pa. 129 (1877). 3. Judgment against partner don't merge cause of action against firm. A brought assumpsit against firm B & C on book account. Defendants put in evidence B's judgment note, for which A receipted as in full, if paid, for the account. A sued B & C after entering judgment on the warrant. — Judgment no bar to action, not being co-extensive with claim against both, and receipt disproving intention to receive judg- ment as satisfaction. Act April 6, 1830, no application, because judg- ment not entered in a joint suit. Wallace v. Fairman, 4 Watts 378 Pa. (1835). 4. A co-partner who is not served with the partner defen- dant is not within the Pennsylvania act of March 27, 1865, P. L. 38, which allows a partner to compel his adversary, or the adverse beneficiary of suit, to testify, although a suit was on a firm contract, because the Pennsylvania acts of Assembly have severed the cause of action involved in a firm contract. Partner not served not interested in suit. A sued B, executor of C, for debt contracted by C, D & E. Plaintiff offered D's deposition in evi- dence, to prove partnership. — Incompetent, on ground of interest, and not made competent by act March 27, i85?, as adverse beneficiary of action. Hogeboom v. Gibbs, 88, Pa. 235 (1878). ;. Promise to release outgoing partner nudum pactum. B & C dissolved, and C continued the business. A who received notice of dissolution and continuance, promised B to release him, and rely on C's agreement to pay the debt. — No consideration for A's promise. Walstrom v. Hopkins, 103, Pa. 118 {1883). §96. The firm being a phrase, aot a person, its contract is nothing but an aggregate of the contracts which the partners make. The fact is, that the jointness of the contract is 407 §96. Business Contracts. Pt. 2, Ch, 5. nothing but a form. The only contracts that have a substantive existence, are the individual contracts of the partners. A partner who sued to enforce an in- dividual claim, might be met by a counter-claim against his firm. If the firm debt was not in the same right, that is, was not a several debt of the plaintiff, it would not be a set-off against the demand.' The enforcement of contracts against partners, de- pends upon the competence of the court to control them as individuals. The judgment, if personal, must be founded upon process against the persons. As service is the basis of jurisdiction, the service must be personal. A statutory service upon a place of busi- ness might justify a judgment in rem against the as- sets at that locality, but would not give a court juris- diction over the person of a partner not served. The statute, though it might control the courts of the State, could not give them jurisdiction, which would be re- cognized outside of the State.^ The jurisdiction depends upon the extent of the judgment. If a State restricts the judgment to firm assets, as e. g. Texas, the judgment would bind the joint stock, but not the foreign partner. As the juris- diction would be acquired by property and limited to it, the judgment would be due process within the 14th' Amendment to the United States Constitution. If the foreign partner appeared, and contested the merits, he would admit the jurisdiction of the court over the partnership.** The technical jointness of the contract was stripped of its artificial effect and converted into a means of 408 Pt. 2, Ch. 5. Business Contracts. §96. protection by the partners, who had become severally liable for the joint debt A suit against the partners must then be joint, in order to protect them against each other, by enforcing the liability of each for the common debt. Each de- fendant- is entitled to compel the plaintiff to join his co-contractor, in order to make him share the obliga- tion in the first instance. If any of the co-contractors cannot be sued, the plaintiff is excused from joining him as a defendant. Then the suit proceeds against the defendants served, as if they constituted all the contractors.* For this reason the plaintiff cannot discontinue his suit against one defendant and proceed against the other, or release one and hold the other ; he would thereby throw the whole debt upon one obligor, in spite of its being the debt of both. To prevent, or frustrate his wrongful attempt, the law makes his act operate and enure in favor of both obligors.* The partners may apportion the liabilities between them, and the agreement being in anticipation of the contribution enforced by law, will be upheld as a con- tract, and an action will lie upon it during the partner- ship.* The Scotch avoided the English pitfall by adopting the French practice, and did not follow the Common law formula, based on the joint contract.'' I. Deceased partner's debt set-off against firm insult by surviving partner. The administrator of A, surviving partner of B, sued D, who pleaded set-off against A & B. — Certificate for D. Firm debt absolute liability of deceased partner's estate, and might be set off against his separate claim. Blair v. Wood, io8 Pa. 278 (1885). 409 §96. Business CONTRACTS. Pt. 2, Ch. 5. 2. Firm but a name for the partners, not a legal person. A August 30, 1887, attached B & Co. by leaving a copy of summons at its place of busi- ness making affidavit that defendants were non-residents of State. — Valid. Statute authorizes suit against a firm doing business in the State and service of process at its place of business. Firm not a person who resided in State, but a union of partners who resided in a different State. Byers v. Schlupe, 51 Ohio 300 s. c. 38 N. E. 117 (1894). Service is necessary to give jurisdiction and if the defendants were not personally served the court might, it is admitted, act under the statute, but no other State would recognize its judgment. 3. As non-resident partner not bound by Law of Texas individually and in his separate estate, joint judgment against him and co-partners based on co- partner's service and his defence on the merits, due process within the 14th Amendment. B et al. in Texas, and A in Wyoming, partners. C sued them and served B et al. in Texas, notifying A to appear and defend as required by statute. Judgment against partners for $28,134.91. A applied to vacate judgment on ground that he was misnamed, that judg- ment didn't bind him or his separate property and that the note sued on was not for a partnership debt or authorized by the firm. C in answer corrected name and averred that note was given for firm debt. Judg- ment for C. A and firm appealed, assigning : No jurisdiction of him and no disposition of judgment against him. Judgment affirmed. A took writ of error, averring : Texas statute against 14th Amendment. — Dismissed. Jurisdiction of partnership not denied, but admitted in State Court by contest on the merits. Jurisdiction of A not involved, for judgment by Texas law limited to firm assets. Sugg v. Thornton, 132 U. S. 524 (1889). 4. Service gives jurisdiction and judgment goes against served partner. B & C partners in Mass. Suit was brought against B & C, and C was served. Then sheriff returned B non-est Inventus. Defence: Non-joinder of B. — Judgment against C. Service gave jurisdiction and returned equivalent to outlawry. Nathanson v. Spitz, 31 A. 6go (1895). ;. Plaintiff discontinuing against one defendant discharges co-defendant. B employed architect A for building which covered land of B's wife, C, and his father-in-law, D, and paid $250 on account of commission. A brought assumpsit for balance against C, and recovered $300 against D. — Reversed. Contract by C (or by B on C's behalf) and D joint, and sustains nothing but joint suit. Van Leyden v, Wreford, 81 Mich, 606 s. c. 4; N. W. 1116 (1890), 410 Pt. 2, Ch. 5. Business Contracts. §96. This is unlike the case of plaintiff's not securing all the defendants. He may be unable to do, and he can make the defendants co-operate to help him bring them all in. If he sues one or more who object, they must plead in abatement and the plea gives the plaintiff a better writ, i. e., furnishes the information which enables him to include all the debts. 6. Partners' contract with each other, to divide the firm debt and each pay his apportioned part, enforced at law. A, B, and four others, were rail- road contractors, in partnership. The firm owed $20,000. The debt was apportioned among the partners ; each agreed to pay his portion, and indemnify his partners to that extent. B's share of the debt was 8;,ooo, which he refused, and which A was compelled, to pay, A sued to recover the payment made on B's account, on his contract. — Recov- ered. Though the contract related to the partners' liability for a firro debt, and the consideration was their separate estate liability, the law enforced the contract, because it did not involve a partnership account. Edwards v. Remington, 51 Wis. 336 (1881). If a partner contracts to pay half a firm debt, co-partner may enforce the payment at law. A & B, in settlement of the partnership business, divided everything but a lawsuit, which they agreed to share equally. A, who paid the judgment and costs, sued B for his half. — Recovered. Partners may, by contract, sever an item from the partnership account, and sue at law for a breach. Ganger v. Pautz, 45 Wis. 449 (1878). An apportionment is the Civil Law rule in non-commercial partner- ship. Supra J70, n. 2, a. 7. A Treatise on the Law of Partnership and Joint Stock Companies, according to the Law of Scotland, by FRANCIS WILLIAM COOK, Advocate, i vol. p. 541: (1866). 4" § 97. FIRM PROPERTY. PT. 2, CH. 6. CHAPTER VI. THE TITLE TO FIRM PROPERTY. §97. Co=ownership puts a restriction upon the owners, co= extensive with the association of title. The partners' title to firm property is co-ownership in its most complete form. The simplest form of co-ownership is a tenancy in common, where each tenant has a separate and com- plete title to an undivided purpart. No single co-owner has any right of disposition of the common property as a whole, nor any right to its exclusive enjoyment. But he has absolute control over his own interest, and an independent right to his proportion of the fruits of the property. The law affords numerous examples of modifica- tions of this simple form, in all of which the tendancy is towards a distinction of the individual rights. Own- ership consists of the exclusive right to enjoyment, and the exclusive right of disposition. A man's right of dominion is destroyed pro tanto whenever another is admitted to share the enjoyment in, or exert rights 412 Pt. 2, CH. 6. Firm Property. § 97. of disposition over, the property. An easement limits the enjoyment, and a mortgage impairs the right of disposition. The destruction of individual rights in the compli- cated forms of co-ownership consists in this : that the prerogatives of the several owners interlock, and each obtains a qualified dominion over the purparts of the others. The case of executors is an illustration, where each executor may exert the full right of disposition over the property. But the interlacing of individual rights, it is obvious, must have a limit, for should it cover the whole scope of ownership, the conflicting rights would be self-destructive. Co-ownership would be replaced by a kind of lottery, in which the most expeditious would take the whole. Passing from the analytical to the historical point of view, it will appear that the process of development has been from the complex form of co-ownership, in which individual rights are imperfectly recognized, to the simple form in which each individual owner's right of property is complete in itself, and untrammeled by that of the others. Two methods existed, at the Common law, for sev- eral persons to hold property together. They might be joint tenants, or tenants in common. Both hold by joint possession, but tenants in common have sepa- rate titles, while joint tenants hold by a single title. The terms are antiquated, and out of place, in speaking of personal property, and especially of merchandise, because they recall the technical incidents of Feudal ■ estates ; but when stripped of the techical husk, joint 413 § 98. Firm Property. Pt. 2, Ch. 6. tenancy defines, with exactitude, the combination of co-proprietorship with co-possession, which is the gist of the partnership title, and makes history reveal the origin and growth of the modern relation. §98. Joint tenancy represents the transition from the family, or tribal, title of primitive law to the individual title of modern times. In the earliest period there was, practically, no se- parate ownership.^ The property rights of the indi- vidual were enjoyed only in and through the family of which he was a member. The joint tenancy of the Feudal law, was a lingering trace of this primitive notion, and enabled persons to hold property in pri- vate ownership, without at once breaking with the tradition of communal holdings.^ When the law passed into its analytical stage, and it became neces- sary to define the legal conception of the joint tenancy, the influence of its origin is seen in the theory of a single title for the several tenants. As at first the law denied to the individual separate and exclusive prop- erty rights, so, at a later date, the jurist denied to the joint tenant a separate and distinct title. In joint ten- ancy, at the Common law, there were many owners 414 Pt. 2, Ch. 6. Firm Property. §98. and one title. The tribal relationship excluded private property, and with it the devolution of property by inheritance. Joint tenancy accomplished the same thing among the co-tenants by the principle of surviv- orship, which was the result of the single title. This theory of a single title was an abstraction, which neither embodies the facts nor meets the requirements of logic. As the institution of private property became universal, different habits of thought were developed, and tenancy in common appeared as a modification of joint tenancy, more consistent with prevailing ideas. In tenancy in common there were many owners, each of whom had a right of enjoyment covering the whole property, but with a separate and distinct title. As a consequence of the several titles, the right of surviv- orship was wanting in this form of co-ownership. Neither of these forms was serviceable for an>1:hing more than for the holding of property, and could not, without modification, meet the requirements of the partnership relation. Partnership demands a theory of ownership which secures to each co-owner the right to dispose of the whole property. Neither ten- ancy in common, nor joint.tenancy could furnish this essential prerogative. 1. Ancient Law, by Sir HENRY SUMNER MAINE, K. C. S. I., LL.D., pp. 260 et seq. 6th ed.; 1876. 2. Elements of Law, by WILLIAM MARKBY, D. C. L., 3d ed., ?5i6, 188;. 415 §99. Firm Property. Pt. 2, Ch. 6. §99. The partner's title is an adaptation of joint tenancy to commercial purposes. To meet the requirements of partnership, the Pro- fession took up the institution of joint tenancy, with which it was acquainted, and adapted it to the novel relation. Common lawyers were familiar with the process of moulding feudal estates to meet the require- ments of a new legal situation. The adaptation of joint tenancy to commercial pur- poses involved an abridgment of some of its incidents, and an enlargement of others. Survivorship contin- ued to be recognized,^ but only until the close of liqui- dation.^ Although the separate title of the partner was recognized, it could not be made effective until after dissolution. During the continuance of the firm, each partner has an estate in the property, which en- ables him to convey a good title to any portion of the firm stock, without reference to the title of his co- partner. This power of sale is not the result of any relation of principal and agent between the partners, but is an incident of the estate. This makes the part- nership title an example of co-ownership in its most complete form. Starting with this fundamental conception, the law of partnership is a development of the joint estate. From this notion of the joint estate the partner de- rives his powers, and the creditors derive their rights. 416 Pt. 2, Ch. 6. Firm Property. §gg. The prominence given to the estate in the partnership plan prepared the way for the derivative rule that the creditors of the firm were entitled to a preference over separate creditors in the distribution of firm assets. It was the firm property embarked in trade, which was the legal debtor, just as a landed estate, when sub- jected to the claims of creditors became, in contempla- tion of law, an independent debtor. The right of the firm creditors cannot be explained by any theory of destination, for that is an equitable doctrine, and in- sufficient to explain a Common law right. It has sometimes been asserted that the creditor's privilege is the result of equitable doctrines. But, in reality, it is simply an instance, in which equity has followed the law. There is nothing abnormal in making the firm estate the starting point of partnership law. The Common lawyers habitually measured a man's ca- pacity by his estate. According to their habits of thought, the estate was the principal, and the indi- vidual the accessory. It is not diificult to understand this mental bent, when it is remembered that their legal and social structure was nothing but methodised land tenures. I. Right of action accrues to surviving joiot tenant. A and B, executors of C, brought writ of account against D, bailiff of C. D's defence: Non-joinder of executors of C's co-tenant E. D argued: "If two mercliandise in common, and one dies his executors shall have a moiety." Plaintiffs replied, that a chattel in possession was not a chattel in action, which could be severed, and executors of deceased could not join survivor. — The writ was adjudged good. The judge, correcting counsel's statement of the Law Merchant, said : "This is " the law of two merchants, who have goods in common : If one dies 417 §100. Firm Property. Pt. 2, Ch. 6. " the other shall have the whole by survivorship." 38 Edward III., p. 7 Accompt: 136;. 2. Lord ELDON speaks of the determination of a partnership " by the " death of one partner, in which case the law says, that the property " survives to the others. It survives as to the legal title In many " cases ; but not as to the beneficial interest." Crawshay v. Collins, supra J 43, n. a: 15 Vesey 227 (1808). Title to firm stock vests la surviving partnerj and administrator of deceased not to intermeddle with It. B & C partners. B died 1881, C being his administrator. Inventory appraised B's interest In firm stock at $500. C assigned for creditors to D. Orphans' Court disallowed credit of $500. — Reversed. Half-value of firm stock not properly In administra- tor's account, but belongs to surviving partner for liquidation. Shipe's App. 114 Pa. 205, s. c. 6 A. 103 (1886). §100. The rights of creditors depend upon the joint estate of the partners. It is important to distinguish between the partner's joint tenancy or tenancy in common, in order to ascer- tain the rights of third persons, by seeing whether they deal with joint owners, or with separate owners. If the possessors have separate titles, that is to say, are tenants in common, the possession, though joint, is by construction of law, the possession of each for a moiety. Then one who has possession of the prop- erty holds half for himself and half for his co-partner. The possession is according to the titles.^ The con- sequence of this severance would be that each part- ner would dispose of his own title and deal with it alone in its firm transactions. If he should act for 418 Pt. 2, Ch. 6, Firm Property. § loo. his co-partner's share, it would be as his representa- tive. The effect of individualizing the partners as to their titles in firm transaction affects creditors. The separate creditors of each partner would be brought to the rank of firm creditors, or, rather, firm creditors would be put into the position of separate creditors of each partner.^ It would happen in this wise: The law recognizes no capacities in an individual. A partner binds himself by a firm contract in his sep- arate estate. He becomes a debtor as an individual, as well as a partner. Conversely, on the hypothesis of a tenancy in common, if he contracts on his indi- vidual account, he charges his property in the firm. If this property is owned in severalty, though occupied in common, the separate creditor is entitled to seize it by execution, and have the purparts set out, so that he can be satisfied out of his debtor's property. Both joint and separate creditors have the same right of access to the partner's quota in the firm and to his separate estate. They would come in pro rata upon each fund.^ On the other hand, the joint ownership of firm prop- erty changes the rights of third persons. Neither partner has the right to deal with any portion of the firm property, except in a firm transaction.* A partner cannot convert firm stock to his own use. This prohibition shows that the law recognizes and upholds the joint estate. If the partners had separate titles, each could exert the right of ownership in spite of the partnership contract, which would not affect the validity of the disposition, though it would entitle 419 § loo. Firm Property. Pt. 2, Ch. 6. the co-partner to sue for a breach. The joint estate prevents any disposition of a joint asset, except for a joint purpose, and for a consideration moving to the firm. A partner could not therefore sell firm stock in payment of his individual debt. The satisfaction of his debt was no consideration to the firm/ nor could the purchaser hold the stock. He knew that the price was not paid to the firm, and that the transac- tion was a fraud upon the co-partner, and upon the firm." If the firm was solvent, and the co-partner as- sented to, or ratified the sale, the transaction would be a withdrawal by the partner. A separate creditor, too, has no claim to any specific piece of firm property, for his debtor has no tangible interest in severalty.'' The firm property belongs, in the first instance, to the firm creditors, and they also have an equal right against each partner's separate estate with his separate creditors. But how does the right of the partners to effect a joint ownership, which prefers joint creditors and cuts out separate creditors, arise? It is by Common law, which created a joint tenancy. This species of estate survived the Feudal system, and was adapted to commercial uses.* By means of it the refusal to recognize the right to trade in the capacity of a partner was circumvented, and a substitute for it was devised. Wherever an individual is doing business in any particular capacity, or rela- tion, as partner, executor, trustee, or guardian, there are two methods of measuring his liability. He may upon one theory of law, be held personally liable to the full extent of his resources for all acts done by him 420 Pt. 2, Ch.6. Firm Property. §icx). in that capacity, or his responsibility may be limited to the fund over which he has control, as an incident to his relation. The latter was the persona of the Roman law, and involved a preference upon the par- ticular fund in favor of those who had dealt with him in his special relation. The Common law, in all cases, took the first view, and refused to recognize any limited liability whatever. This is what is meant by saying, the Common law refused to recognize 'acting in a capacity.' As the individual's liability could not be limited to the particular fund, it followed, con- versely, that he could create no preference upon that fund to creditors who had dealt with him in his special capacity. These creditors stood upon the same foot- ing with all his other creditors. Some alternative had to be devised to give the joint creditors of a partner- ship a preference upon the firm fund. The indivisi- bility of a person at law made it necessary in lieu of the legal conception of a persona or capacity to find out an equivalent; which was done in part by the expedient of joint tenancy. The Feudal lawyers went to work, in a back-handed way, and started from the point of view of title. Instead of controlling property by the person who exerts his capacity, they controlled the person by the property which he possessed. They looked at the estate as the principal, at the tenant as accessory, and they ascertained and defined his capa- city by his interest in the land. Estates arise at law according to the interests to be subserved. A joint tenancy resulted from the union of the partners, and took its character from the purpose of the joinder. 421 §100. Firm Property. Pt. 2, Ch. 5. The contract creates the relation of partnership, and invests the partners with an estate by entireties during the continuance of the firm, that is to say, until the final settlement of their account.* The relation, though founded upon contract, exists by virtue of the vested interests when once established, independent of the contract, which served as the occasion and means of its establishment. Each partner has a vested right, which no dissolution can destroy, to apply the firm property to the payment of the firm debts, and the priority of firm creditors upon partnership funds is nothing more than the sequestration of this vested right in their interest. The title is joint in its most complete form, as explained above, but neither partner can dispose of the joint property or any portion of it, or of his individual interest, except in subordination to the obligations of his relation, and in accordance with the rules by which it is governed. The separate creditors are bound to recognize the nature of the property, and their execution would not hold more than the debtor could convey. A separate execution and levy upon the firm prop- erty create no lien upon the partner's interest. The separate creditor seizes the firm property that he may satisfy the technical requirements of the writ, but he sells only the partner's share in the firm business. His share in the firm business is his portion of what remains upon dissolution after all debts are paid. This share of the partner is a property right, which he holds in severalty, and, therefore, an asset for the payment of his separate debts. But it is not a right 422 Pt. 2, Ch. 6. Firm Property. § loo. of ownership in severalty, and hence the interest which he has as co-owner of the firm property eludes the grasp of his separate creditor, and is exclusively reserved to answer the claim of the firm creditors until dissolution has destroyed the joint estate. It is not strictly true to say that a partner has no tangible in- terest as owner in the firm property. It is tangible for firm creditors, and is, in reality, the basis of their preference. He is undoubtedly a co-owner, logically speaking, and his right and interest as co-owner must be separate and peculiar to himself (§ ^3). All that is meant by the phrase is that a partner's interest, as owner in the firm property, is not available for his separate creditors during the continuance of the firm. The partners, in making their contributions, create for the firm a new estate. Each partner loses a part of his exclusive dominion over his contribution, and his co-partners acquire in it new rights of ownership. The partners assume the position and exercise the powers of co-proprietors over an integral stock. They still own the property as individuals, because the firm is not distinct from the members who compose it, but the nature of their estate is changed. The single partner has no longer any right to the separate enjoy- ment and control of his contribution, or of any por- tion of the firm property. His rights as owner are modified and controlled by the rights of his co-pro- prietors, which extend to every portion of the stock. It is this want of absolute and independent owner- ship which withdraws his interest as co-proprietor from the grasp of his separate creditors. Were he 423 § 100. Firm Property. Pt. 2, Ch. 6. absolute owner of his aliquot, though undivided, in- terest, his separate creditor might sell it on execution, and the purchaser would succeed the partner as co- proprietor. This is the case of a tenant in common. Furthermore, the purchaser would hold the title free from the firm debts, which would then assume the position of a lien, and from the claims of the co-part- ners, because, in the absence of a statutory provision, a judicial sale discharges all liens, and charges them upon the debtor's title.^" But the sale of a separate partner's interest does not pass a title free from the claims of the partners and of the firm creditors. Hence it is evident that the partners have something more than an equity, and the creditors something more than a lien. By virtue of their rights as co-proprietors, the partners hold the firm stock for firm purposes in defi- ance of the separate creditor's attack. Being them- selves, equally with the debtor partner, owners of every portion of the firm stock, it is impossible for a separate creditor to sell the debtor partner's interest in the stock itself without infringing upon their title. The separate creditor may take the only property right of which the partner remains separate and ab- solute master, /. e. his share upon dissolution. But the firm stock is impregnable to his attack, because sheltered by the title of the co-partners." I. Tenancy in common enforced by execution splits partners' title into moie- ties. B issued a separate execution against C, which was followed by a joint execution against C & D, but E, the sheriff, made no second levy under the joint writ. Subsequently, C & D became bankrupt, and A, their assignee, sued E for selling D's moiety, under the joint 424 PT. 2, Ch. 6. Firm Property. § loo, writ. Defence: Stock already seized. — Tlie seizure, in order to sell C's moiety, did not take D's moiety, whicli remained by construction of law in D's possession. Johnson v. Evans, 7 M. & G. 249 (1844). 2. The titles would be several, although the posession was joint and the posession would be according to the titles. This would enure to the separate creditors, who could seize and set apart each partner's quota of the firm stock, in spite of the co- occupation. The firm creditors would be separate creditors of each partner, and on a distribution would all come in with the separate creditors. The only difference between joint and se- parate creditors would be, that the joint creditors would com- pete for each separate estate, while the separate creditor would be limited to his single debtor. The Civil lawyers are not less perplexed than the Com- mon lawyers to find out how to give the firm creditors a pre- ference upon the joint assets. The French resort to the fic- tion of making the firm a person. The legal person contracts debts, and charges its assets for payment. If the fiction had a legal basis for its existence, and was consistently carried out, a partnership would become a corporation, i. The firm cred- itors would take the firm property, a:nd no separate creditor would have a claim against it. 2. The firm creditors would have no claim against the partner's separate estate, which would be liable only to their individual creditors. 3. The firm might be bankrupt, without involving the partners in the pro- ceedings. 4. The firm might be solvent, although all the partners were bankrupt. 5. The partnership would not be dissolved by a change of partners. " Soil nun die Beliauptung, die Handelsgesellschaft sei eine juris- " tische Person, irgend welchen Sinn haben, so mijssen audi die " Grundsatze und Folgerungen, welche sich nothwendig aus dem We- " sen der juristischen Person ergeben, auf sie Anwendungfmden. Man " miisste demgemass auf folgende Hauptsatze kommen : I. " Die Societatsglaubiger halten sicli zu ihrer Befriedigung aller- "dings an das Societatsgut, und scliliessen davon die Giaubiger der " einzelnen Gesellschafter aus; aber wie schon oben angedeutet, im 425 § loo. Firm Property. Pt. 2, Ch. 6. " gleichem Augenblick und unzertrennlich von diesem Satze, ergiebt " sich auch : 2. " Die Privatglaubiger befriedigen sich, mit Ausschiuss der Soci- " etatsgiaubiger, aus dem Privatvermbgen der einzelnen Associes. 3. " Die Gesellscliaft tcann in Concurs gerathen, oline dassUberdie *' einzelnen Gesellschafter der Concurs ausbricht, da die Schuldender " Gesellschaft die Mitglieder, aus denen sie besteht, nicht beriihren. 4. " Die Gesellschaft kann solvent bleiben- und fortbestehen, wenn " auch alle Gesellschafter in Concurs fallen. 5. " Die Gesellschaft besteht als die gleiche mit ihren Activen und " Passiven fort, wenn schon ihre Mitglieder sich verandern. *' Von der im gegenwartigen Handelsrechte bekannten und speziell " ausgebildeten Handelsgesellschaft gelten aber, allgemein anerkannt, " ganz andere Bestimmungen,und diese Grundsatze auf sieanwenden, " hiesse ihr innerstes Wesen zernichten und sie zu einem vollig andern " Institute umgestalten."a a. Das Verhaltniss der Societatsglaubiger zu den Privatglaubigern im Concurse der offenen Handelsgesellschaft, pp. 7-8, von JOHANNES HURLEMANN, Cantonsprocurator, Zurich, 1846. What is the polarity of mind of a lawyer who advocates making a partnership by turns a corporation and a number of individuals ?'' If he comprehended the elemental distinction of kind, he would not expose his confusion by making the sug- gestion, but he would disguise the proposition in the jargon of lawyers, who speak of a man quo modo a horse. b. The Law of partnership, ch. x. ? i, by THEOPHILUS PARSONS, LL.D. 3. The firm creditors are entitled to no privilege, unless a legal basis exists for the preference. The Civil law does not furnish any legal ground for the privilege. The result is a pro rata dis- tribution among all the creditors, joint and separate, of each partner.* Adler contests HiJRLEMANN'S position and traces the devel- opment of the execution at the Civil law, through the middle ages and down to the code which gave a joint writ and settled the fact of the joint creditors exclusive access to the firm pro- perty.'' He seeks to justify the exclusion of the separate 426 Pt. 2, Ch. 6. FIRM Property. § loo. creditor by tradition, and to make tlie enactment of the German Code declaratory of the pre-existing law. He finds the pro- tection of the firm creditor in the separate execution, which being individual at the Roman law, required an account involv- ing a dissolution and settlement before the partner's share could be seized by his individual creditor. a. " Esfragt sich, wem gehort das Gesellschaftsgut? Darauf kann " nicht anders geantwortet werden, als den Gesellschaftern pro rata. " Wer haftet fiirGesellschaftschuIden? Antwort : die Gesellschafter. " Diese haften alien Creditoren mit ihren sammtlichen Activen,liegen " diese wo sie wolien. Der fragl. Vorzug muss so als Privilegium " aufgefasst werden. Diese Auffassung ist dadurch bedingt, dass im " gemeinen deutschen Recht, und der Natur der Sache nach, dieG. " keine jur. Person ist, und als solche also kein Vermbgen und keine " Schulden hat. Jedeandere Auffassung des fragl. Vorzuges, sie mag "nun in Worte gekleidet werden, wie sie woUe, fiihrt wieder dahin, " dass die G. als eigene Person Rechte und Verpflichtungen getrennt " von denjenigen ihrer Mitglieder habe." Hiirlemann, das Verhaltniss, p. 88. l. " In der Regel schon die allgemeine Form des romischen Executions- " rechtes den Glaubiger zwang, ganz wie heutzutage, auf Auflbsung " der Gesellschaft und Abschichtung zu dringen." lb. 21. " Dr. Karl Adler, zur Entwicklungslehre undDogmatik des Ge- " sellschaftsrechtes. Berlin (1895). 4. Neither partner could charge the joint estate, except by a firm transaction, while the creditors by a firm transaction would hold the estate as a pledge, and have in addition an equal right with the separate creditors to each partner's separate estate. ;, Partner's conveyance of his title to land held in fact for firm a fraud. A, engaged in timber-business, conveyed half the plant and equipment, including land and stock in trade, to B in partnership. B, having no individual property and indebted $1,055.18 to firm, conveyed his moiety of real estate to his father, C, for a separate debt. The firm then owed $5,000; had only $6,000 assets, including realty. A moved to dissolve and to set aside B's conveyance.— Decree : Deed a fraud on the partnership. Hubbard v. Moore, 67 Vt. 532, s. c. 32 A. 46; (1895). 427 § 100. Firm Property. Pt. 2, Ch. 6. Partner's sale of firm stock in payment of his individual debt witliout co- partner's consent, void. A & B sold feed for horses of C & D. A, upon dissolution sued, as assignee of claim, C & D, and also for price. Defence : B indebted to D on promissory note and purchase made by D on agreement that price should be applied on the note and in pay- ment of the debt. — Recovered. Transaction could not stand without A's assent or ratification. Janney v. Springer, 78 Iowa 617, s. c. 43 N. W. 461 (1889). 6. Partner's attempt, if firm insolvent, to pass title for separate claim charges him and his grantee with fraud. B sold out to C taking stock in payment. C, who assumed the firm's debt, next day mortgaged rest to secure notes for his contribution which wife had originally advanced. Wife assigned to her sister, who knew about the mortgage, for a past debt and an ex- change of property. A, firm creditor, attached stock. — Judgment for A. Insolvency demonstrates partner's lack of ownership, and either's attempt to pass title a fraud, which charges grantee aware of the insol- vency. Kelley v. Flory, 84 Iowa 671, s. c. 51 N. W. 181 (1892). 7. Partner's title as joint tenant runs through the firm stock. A brought trespass against sheriff and plaintiff in execution against B's interest in A & B's livery stables for taking possession of the stock by means of a sheriff's sale. The defendants pleaded " not guilty," and denied A's right to recover without B's joinder. — A recovered ; his title good to all the firm property, and unless B's non-joinder pleaded in abate- ment the objection is waived. Deal v. Bogue, 20 Pa. 228 (1853). 8. Interest no bar in suit against surviving partner. Deceased partner not an assignor. B & C, partners. B died. A sued C, as surviving partner, for money lent, and testified that the loan was made to B for the firm. Defence: A incompetent, because C is assignee of B, deceased, and is deprived of his testimony. — A competent. C not assignee of B, but original joint tenant, with him, of the firm property. Tremper v. Con- klin, 44 N. Y. 61 U870). 9. The joint estate does not come to an end until a settle- ment of the account between the partners has been completed, and the separate interests of the partners have been ascer- tained. The Common law process of execution was inade- quate to bring about the ascertainment of a partner's share in the joint property. A summary remedy was at first permit- ted. "If there were two partners, and a * creditor of one got judgment and execution against him, and levied it upon the 428 Pt. 2, Ch. 6. Firm Property. § icx). partnership property, of which the sheriff (although he seized the whole) sold one-half. If there were three, he sold one- third ; if four, one-quarter."* Lord MANSFIELD corrected and supplemented the process by making an account in equity in- cident to the execution. His practice has become the law.'' The share may now be sold without ascertainment, when the purchaser buys the right to an account, or a pig in the poke,^ or the share may be ascertained in advance, and the sale will be made to a purchaser who knows what he is buying."^ a. A Treatise on the Law of Partnership, p. 342, 2d ed., 1870, by THE- OPHILUS PARSONS, LL.D., who reviews the history of the proceed- ings on a separate execution, and cites the authorities. b. Separate execution does not seize specific articles of firm property. A recovered judgment against B and C, and levied on articles belonging to C & D. D interpleaded, and jury, under instructions from court, gave A 1-2 the property, and assessed its value at $i;o. Subsequently, C sold all to D, for antecedent debt. — Error. C had no title to any specific articles. Tait v. Murphy, s. c. 80 Ala. 440, 2 S. 317 (1887). c. Purclia§er of partner's interest gets nothing but a riglit to an account. A bought at sheriff's sale B's interest in newspaper establishment of B & Co., and let it to B, reserving rent. On B's default in payment of the rent, and his refusal to deliver up possession, A brought a bill which court sustained, and also issued a habere fa., and afterwards a writ of assistance, which the sheriff executed. — A entitled to no part of firm property, and proceedings below without any warrant in law. Dur- borrow's Appeal, 84 Pa. 404 (1877). d. Partner's share cannot be soid until ascertained. C levied on stock of A, B & Co. for B's debt. A enjoined C from selling until B's interest could be ascertained in Chancery. — Firm title a unit, and, until liquida- tion, no ascertainment of partner's quota. No sale in chancery of unknown purpart. Place v. Sweetzer, 16 Ohio 142 (1847); Nixon v. Nash, 12 O. St. 647 (1861). 10. Sale against heir within seven years discharges lien against ancestor's estate. B left his estate, by will, to children, C, D, E, F and G. F died in 1807, leaving debts, which H, his executrix, paid. She applied, in 1810, to O. C, which made sale of F's interest, for the payment of his debts to I. G also died, without issue, before 1808. In 1808, the interests of C, D and E had been sold separately, at sheriff's sale, to A, upon judgments recovered against each of them. The lien of E's 429 § loo. Firm Property. Pt. 2, Ch, 6. debts was discharged by the sheriff's sale. Luce v. Snively, 4 Watts 396, Pa. (1835). The difference of estate is necessary to prevent the sale from discharging liens. Sheriff's sale against heir passes no title against subsequent Orphans' Court sale of ancestor's estate. Walker died in 1856. His property descended to his son Samuel, against whom judgment was recovered, and the property sold at sheriff's sale. In i860, the same property was sold under decree of O. C— Purchaser at sheriff's sale had no claim to the land as against one who bought at the O. C. sale. If heir takes estate subject to debts of the decedent, the heir becomes the debtor instead of the ancestor, and the creditors are co-ordinated. Horner v. Hasbrouck, 41 Pa. 169 (1861). II. Although sale of moiety is fraudulent, sheriff can't sell article. Undi- vided title protects both parts. C, a dealer in kindlingwood, became indebted before March, and sold out his business to A & B, making two bills of sale. B paid for his half in cash. A, C's son, in notes. Creditors of C obtained judgment in June and levied on horse. Sheriff sold and delivered possession. A & B obtained judgment in tresspass against sheriff. — Affirmed. Sheriff could not sell, at best, anything but A's interest, as B paid full value, and delivery of horse charged him. Plaintiff had joint interest, which sustained action, though only in a moiety. Farrell v. Colwell, i Vr. 123, N. J. (1862). Partner in possession of firm assets after dissolution, a trustee, and can- not buy at his own sale, even through another. A and B dissolved in 1861. They owned an uninsured share in the bark "Ocean Rover," destroyed in 1862 by the "Alabama." In 1865, after A's insolvency, B, as sol- vent partner, sold the firm assets at auction. A bid for the share, but it was bought, at B's request, by C, who, under a secret agreement, resold to B. The government awarded $1564 compensation for the loss. A claimed half the award. — Recovered. B, a trustee of the late firm's assets, and could not hold under a purchase made by another for him. Jones V. Dexter, 130 Mass. 380 (1881). Partner's deed for a moiety of firm-land to his co-partner for settlement, is not a fraud on the separate creditors, but a re- cognition of the joint estate, which ends with a settlement ; when the title reverts to the partner. If the partner's motive in conveying his moiety was to prevent his separate creditors from seizing his share that would not make the conveyance a 430 Pt. 2, Ch. 6. Firm Property. § loc, fraud upon them. He simply does what the law would enforce. The separate creditors can claim only subject to the joint title and the partner has the right to put the legal title out of their reach. Partoer who, after selling out to his co°partner, conveyed his moiety of firni'-land to co-partner, may reclaim it after settlement. A, Oct. i, 1868, sold out to B for $1,000, who assumed debts, and, Oct. 2, reciting A & B's embarrassment and his individual indebtedness, conveyed a moiety of firm-land to B to pay firm-debts, and, retaining joint use and occu- pation, stipulated for a re-conveyance after settlement. They jointly leased land and shared rent, until B died in 1884, making C his devisee. A demanded re-conveyance of moiety. Defence: C's title absolute. Deed fraud on A's separate creditors. Obstructs firm creditors. — Decree. Separate creditors subject to joint title, which reverts to B on settlement. Jones v. Smith, 31, S. C. 527 s. c. 10 S. E. 340 (i88q). The co-partner could raise no such question to defeat the partner's recovery. The separate creditors are the only par- ties who could be affected by the conveyance. If the partner conveyed his own land to deceive the separate creditors, and represented the partnership as dissolved, while he secretly bargained for a re-purchase within six months. The transaction could be a fraud only to the separate creditors; it would stand as a bona fide mortgage between the partners. Partner's mortgage to co-partner, represented to separate creditors as dissolving partnership, valid between the partners. A sold B half interest in business, and conveyed him moiety of land. Becoming embarrassed, A sold B other half interest,^and conveyed remaining moiety, both aggregating $3,000, for $97; at 15 per cent, with which he paid a sepa- rate creditor. Secret agreement for re-purchase within six months. A represented to his separate creditors, sale as outright and partnership dissolved ; but he still took part in business. A brought bill for division and account. Defence: i. B's title absolute and partnership dissolved. 2. No re-purchase within period. 3. Sale, fraud on separate creditors of A.— Decree. Deed bona fide mortgage between A & B. Townsend v. Peterson, 12 Colo. 491 s. c. 21, P. 619 (1889). 431 § loi. Firm Property. Pt. 2, Ch. 6. §101. Partnership is a status. By status is meant, in general, the sum of the rights and duties of an individual in a given political, or social relation. It may be, and generally is, independ- ent of contract, or it may arise through the consent of the individual. A man's status as a citizen, or as a father, does not depend upon contract. His status as a hus- band, or a partner, is the result of his consent. As status is the result, which the law attaches to certain political or social facts connected with the individual, it cannot, strictly speaking, be dissolved at will, be- cause the individual cannot change the facts upon which his status depends. The citizen cannot alter his birthplace, nor the father overcome the fact of his paternity. The law may and often does provide for the abrogation of the status upon the subsequent con- junction of a different state of facts. As the consent of the individual may be an essen- tial fact in the creation of the status, so, too, his change of purpose may be the effectual fact in bring- ing about its abrogation. But this is a matter of spe- cial legal provision. Marriage cannot be dissolved at will. Partnership may be dissolved at will and the relation brought to a close through the act of the indi- vidual, yet the status, with all its attendant duties and prerogatives, subsists until it is terminated in a manner consistent with its original purpose.' While the partner may dissolve the firm at will, and compel 432 Pt. 2, Ch. 6. Firm Property. § loi. immediate liquidation, he cannot, before the final set- tlement of accounts, impair any of the prerogatives of his co-partners, or devest himself of any duty by the simple withdrawal of his consent to the continuance of the relation. Herein is the difference between partnership and agency. Agency is not a status, but a contractual relation. The prerogatives of an agent depend upon the continuing consent of his principal, and cease the instant that consent is withdrawn. The elevation of partnership into a status, is due to the presence of a firm estate. Since the rights and obligations of partners as individuals are measured by the estate, which is an extraneous fact, the notion of this contractual relation is necessarily subordinated to the idea of status.^ The partners being merged as individuals in the firm estate, are enabled to trade in a distinct capacity. The estate is set apart and dealt with by its proprie- tors as separate fund. Any transaction by either partner, not connected with the estate, does not bind it, or enable the creditors to proceed against it. The partners, when acting for the firm, are isolated by the estate from other transactions, and the isolation is equivalent to giving them capacity to trade as part- ners, the persona of the Roman law. The only quali- fication is, that in acting as partners they bind their separate estates, and the firm creditor is not confined to the firm fund. The withdrawal ot the partnership property from the partner's general estate could not be accomplished by contract between the partners.^ The contract serves as the occasion for the creation 433 § loi. Firm Property. Pt. 2, Ch. 6. of a status, as in marriage, but the relation, when created, establishes rights and duties which are para- mount to the contract. It is the recognition by the law of the estate, that severs the partner from himself as a man. I. Partner's right to wind up business. A bought out a partner's interest, and was admitted, by continuing partner, to joint liquidation. A ap- plied for a receiver, because B made settlements without his consent. — Bill dismissed. A, though admitted to equal rights in liquidation, was no more than a partner, and could not restrict B's control over the business. Van Rennsselaer v. Emery, g How. Pr. 135, N. Y. (1854). Appointment of receiver not of course in partnership at will. A & B, partners at will. A brought bill for dissolution and appointment of a receiver. B denied any cause for a receiver, and A insisted upon the appointment, as of course. — Refused. In partnership at will, appoint- ment in court's discretion, and unless cause shown for taking business out of defendant's hands, chancellor will not break up business and saddle partnership with costs of settlement in chancery. Birdsall v. Cole, 2 Stock. Ch. 63, N. J. (1854). Dissolution. Contract to seli machinery to highest bidder and divide pro- duct. On dissolution, partners agreed to divide chocolate on hand, and sell out machinery for its manufacture to the highest bidder. The chocolate was divided into two lots, and then the partners disagreed. A got judgment for his share of the assets against B. — Reversed. Contract not binding until carried out. Koningsburg v. Launitz, i E. D.Smith, 215, N.Y. (1851). Appointment of receiver refused unless ground laid. A & B, at P, in partnership with C & D, at E, dissolved. A & B asked appointment of receiver, because C & D misappropriated firm assets at E, and refused to pay notes at bank, for $10,000, or meet A & B for settlement. C & D admitted refusal to pay notes, but denied conversion of assets, or refusal to meet A & B. — Appointment refused. No evidence of bad faith. Coddington v. Toppan, 11 C. E. Gr. 141, N. J. (1875). 2. Dr. KUNTZE thinks the joint estate of the partners forms the legal basis for the transactions of the business, and gives the partnership a standing apart from the individuals who compose it. The article of KUNTZE is published only in a 434 Pt. 2, Ch. 6. Firm Property. § lor, German legal periodical,* wliicli is inaccessible to foreign read- ers. Dr. Kah thus states KUNTZE'S view :^ " Er findet das Wesen der wirthschaftlichen Genossenschaft weder " in der Societats noch in der Collectivgesellschaft, sondern in einer " stiftung: universitas bonorum, einem personificirten patrlmonlum. Der " Rechtsgrund hierfiir besteht Ihm darin, dass einestheils der Schwer- " punkt bei der Genossenschaft in ihrem Vermogensbestand ruhe, an- " derntheils ihr Zweck— anders als bei der Corporation— auch von "einem Individium erreicht und verfolgt werdeh tconne. Das Orga- " nisationsprincip der wirthschaftlichen Genossenschaft besteht nach " KUNTZE in der Verbindung einer abstracten Vermogenspersonlich- " keit und der Gesamrathand, coniuncta maaus." a. VI. Zeitschrift fUr das gesammte Handelsrecht. S. 220-229. 6. Beitrage zum Recht der Erwerbs- und Wirthschafts-Genossenschaf- ten, von Dr. BERNHARD KAH. p. 33. 1882. 3. Dr. HURLEMANN'S position is that as partnership origi- nated in the Roman law, and has extended with its develop- ment, the principle of its organization must be found in that system of law. He denies that any basis exists in the Civil law for a joint estate which will secure the firm creditors a preference in its distribution. The right of individuals to set apart property, and form a joint mass, which should be kept for their joint creditors, did not exist at the Roman law. i. The fiction of a person he discards a makeshift. 2. The privilege of the joint creditors he denies, because it has no legal foundation. 3. The analogy of the peculium he shows to be far-fetched and unfounded. Hiirlemann's das Verhaltniss, 73-76. The right to keep distinct trades carried on by different freeman, who acted for the proprietor, was unheard of. " Es konnte wohl nicht selten sein, dass ein Kaufmann mehrereGe- " schafte hatte und fiir jedes besondere Institoren. Da ist aber " keine Rede davon, dass die Glaubiger des einen Etablissements Se- " paration von denjenigen des andern verlangen konnen, noch we- " niger davon, dass die Glaubiger einer einzeinen Handlung Separa- " tion von den Nichthandlungsgiaubigern desselben Kaufmanns an- 435 §101. Firm Property. Pt. 2, Ch. 6. " sprechen kbnnen. Wir haben da einen Schuldner, welcher unbe- " dingt alien seinen Creditoren mit seinem ganzen Vermbgen haftet. " Die Verhaltnisse, auf die sicti besonders die actio iastitoria stiitzt, le- " ben nocli bei uns fort und zeigen sich besonders bei der Handelsgesell- " schaft. So umsichtig und detaillirt durchgefiihrt, wie im romischen " Reclit, bemerkt THOL, ist die Lehre vorri Institor nirgends, aucli ist " tcaum ein Satz derselben unsern lieutigen Verhaltnissen widerstre- " bend." Hiirlemann, das Verlialtniss, p. 79. The contrast between the position of a Roman slave and a modern trader, is pointed out by HURLEMANN, and the analogy relied upon by the advocates of a privilege for the firm credit- ors confuted. Das Verhaltniss, p. 83-4. HURLEMANN sums up the Commercial law, apart from Codes, in the following propositions : " FUr das gemeine deutsche Handeisrecht stehen nunmehr folgende " Reclitsgrundsatze fast: I. " Die Haadelsgesellschaft ist Icelne juristlsche Person. Sie hat als solche " weder eigne Rechte nocli Verbindliclikeiten, sondern die einzelnen " iVlitglieder derselben sind es, die in alien Verhaltnissen, welche die " Gesellschaft betreffen, selbst und allein als berechtigt und verpflich- " tet erscheinen. 2. " Sie ist nach den Regein des romischen Rechts iiber Societat, wovon " sie eine Art ist, zu beurtlieilen ; sie hat nur das EigenthiJmliche, dass " solidarische Verbindlickeit aller IVlitglieder als Regel gilt. Fiir diese " EigenthiJmlichkeitfinden sich Analogien im romischen Recht bei den " Bestimmungen iiber das Institorenverhaltniss. Die Vermuthung " einer gegenseitigen prsepositio institoria kommt der Berechtigung zur *' Firmafiihrung vollig gleich. 3. "Die Pirma der Handelsgesellscbaft ist niclits Anderes als die abge- " kunte Bezeicbnung ailer soiidariscb baftenden Geseiiscbafter. " 4. "So lange ein Mltgild solvent bleibt, Ist^aucb die Handelsgeselischaft " soivent, und der Concurs der letztern ist nur der Concurs aller ein- " zelnen Mitglieder. Es gibt also so viele Concurse als Mitglieder " sind, und natiiriich bei jedem eine eigene Concursmasse. ;. " In die einzeine Concursmasse fallen die sammtllcben Giiter des " Oesellschafters, sein Antheil am Societatsgut sowohl, als sein iibriges, " ausser der Societat liegendes Vermbgen, das sogenannte Privatgut. 6. " Die Societats Glaubiger mussen ihre Forderungen, wie die 436 Pt. 2, Ch. 6. Firm Property. § 102. " sogenannte Private Glaubiger in den einzelnen Concursen ihrer *' Debitoren, der Gesellscliafter, anmelden. Jena konnen l u. Co. Litt. 9. a. b. Introduction to the Science of Law, by Frederick Ritso, Esq., London (1815). 7. " Dem einfachsten Rechtsgefiihlistes unverstandlich, dass die einem " Glaubiger verpflichteten A und B ihr Vermogen durch Einlegung " ineinezwischenihnen gebildete Handelsgesellschaft dem Zugriff des " Glaubigers entziehen konnen." ADLER, Gesellschafsrecht, 109. 8. " Man konne keine solidarische Haftung der Gesllschafter statuiren, " wenn man nicht die Gewissheit lasse, dass wenigstens zunachst der " Gesellschaftsfond nur fiir Gesellschaftsschulden parat sei." lb. 57. 9. " Wenn das Vermogen wirklich den GesUschaftern gehbrt, so muss " es ihnen nach Antheilen (Quoten) gehoren, wenn nicht, gehbrt es " einem von ihnen verschiedenen Subject. Tertium non datur." lb. 89. 10. " Diese Solidaritat, welche wir zum Unterschiede von der romischen, " strenge oder echte Solidaritat nennen, besteht darin, dass sie der For- " derung gegeniiber von der Entstehung bis zur Execution zwischen " dem Vermogen der Schuldner — in der Regel auch zwischen ihren " Personen, keinen Unterschied gelten lasst. Die mehreren Vermbgen " fliessen fiir diese Forderung ineinander, der pfandende-GerichtsvolI- 446 Pt. 2, CH. 6. Firm Property. § 102. " zieher wird durch den Executionsbefehl angewiesen, keinen Unter- " schied zu machen. Die Pfandung in gemeinsames Oder zwischen den *' Mitschuldnern strittiges Gut unterliegt keiner Schwierigkeit, und " daraus ergibt sich heute, das wiclitige, factische, von Recht nur " anerkannte und gesiclierte Vorrecht der Gesellschaftsglaubiger in " der Pfandung des Gesellschaftsgutes." lb. 25-6. 11. " Im Ganzen ist aber die Auffassung gerade der alteren Doctrin und " Praxis eine richtige. Sie fasste den Vorzug der Gesellschaftsglaubi- " gerals ein Executionsprivileg auf . Das ist riclitig und wird ganz klar, " wenn wir erkennen, dass das Recht der Privatglaubiger auf Ab- " schichtung und Befriedigung aus der liquidirten Summe, sofern es " sich gegen den Executen richtet, ganz und gar als eine Form der " Zwangsvollstreckung sich darstellt." lb. 60. " Die Selbststandigkeit des Gesellschaftsvermbgens beruht ja we- " sentlich auf dem Gedanken, dass das Recht des Gesellschafters auf " Abschichtung von dem Rechte des Gesellschaftsglaubigers auf Be- " friedigung in Foige der Solidarhaft uberwunden wird." lb. 127. 12. " Die Qualitat des Gesellschaftsvermogens ist nichts als ein Zu- " stand der Verbindung von Theilen der Vermbgen der Gesellschafter, " welcher ohne vorherige Bezahlung der Gesellschaftsschulden aus " Griinden der Opportunitat und der Gerechtigkeit nicht gelostwerden " kann. Diese Gesellschaftsschulden sind durch die Energie, der " strengen Solidaritat, mit welcher sie ausgerijstet sind, die Klammer, " welche jene Verbindung von aussen umschliesst und zusammenhalt, " und falschlich in dem Lichte einer von ihnen organisirten Einheit " erscheinen lasst." lb. 95-6. " Der Vorzug der Gesellschaftsglaubiger ruht, wie wirsehen, ganz " und gar auf der actuelien Verschmelzung der Antheile der Gesell- " schafter in Gesellschaftsvermbgen, welche diesem die nur durch die " Kraft der echten Solidaritat iiberwindliche factische Immunitat gegen " unmittelbare Execution verleiht. Er soli also, soweit und nar sowelt " reicfaen als die Verschmelzung reicht. Die rechtliche Immunitat ist " nur eine Sanction und Weiterbildung der factischen." lb. iig. 13. " Den Glaubigern aller ihnen solidarisch — wenngleich nicht ex causa " societatis verpflichteten Gesellschafter wiirde der Gesetzgeber ohne " geniigenden Grund ein ihnen vor Anderen leicht zugangiiches Ex- " ecutionsobject sperren." lb. 109. 14. " Wir sehen nunmehr, wie sich das Gesellschaftsvermogen nicht " durch eine ihm innewohnende organische Kraft, welche alien anderen " und namentlich den romischen Gemeinschaften Fremd ware, von *' dem Privatvermogen abhebt." lb. 70. Supra, n. 7. 447 § 103- FIRM Property. Pt. 2, Ch. 6. §103. Partnership, being a status based upon the firm es= tate, does not derive all its distinctive features from the contract of the parties. Judge Gibson advanced a notion, which makes partnership an anomaly in law: The partners seek, by an agreement between themselves, to bind third per- sons. The partnership property is withdrawn from the execution of a creditor, by a contract between a debtor and a stranger, to which the creditor was not a party. The partnership forms an exception to prin- ciple, and, as such, is tolerated only in favor of trade.' If it were not for the partnership's exceptional stand- ing at law, the creditor of a partner would have a right in equity to the partnership property on equal terms with the firm creditors, limited, of course, to the portion of the firm assets which belongs to his debtor. If Judge Gibson's theory is accepted, and partnership is nothing but a contract, the rights of all creditors are reduced to equality, and as neither class has a priority upon the joint, or upon the separate, fund, distribution should be made without respect to the creditor's class. But this is unheard of. The joint estate is, in fact, awarded to the firm cred- itors, not as their right, but under the pretext of con- venience in making distribution. The separate creditors are awarded possession of the separate estate, to the exclusion of the partnership creditors, in order to coun- 448 Pt. 2, Ch. 6. Firm Property. § 103. terbalance the privilege of the joint creditors to appro- priate the firm assets. The inability of a partner to convey any title to a specific portion of the firm stock by a sale of his in- terest, voluntary or adverse, was to Judge GIBSON an anomaly. While compelled to admit the principle as an established rule of law, he was disposed to deny it any effect in determining the rights of joint and sep- arate creditors.^ A preference given to the joint cred- itor upon the firm fund, was in his view, an unwar- ranted abridgment of the co-ordinate rights of the separate creditor. The conception entertained by Judge Gibson of a partnership was a tenancy in common. The partners, as debtors, have nothing to say about the method which a creditor shall adopt, in order to collect his debt. It is the privilege of the creditor to select his remedy. The debtor has no power to curtail his lia- bility. The partners could neither restrict individual creditors to the separate estate, nor firm creditors to the joint assets. Both classes of creditors have an equal right to proceed against either kind of property which the debtor had. The separate creditor might go against the firm property, or a moiety of, it, as his debtor's property. The joint creditor might proceed against the separate estate of his debtor. The only plan of distribution which would give effect to the equal right of every creditor, against his debtor's pro- perty, would be to marshal the assets, /to rata, among the individuals of both classes, without regard to the 449 § 103. Firm Property. Pt. 2, Ch. 6. classification of creditors into joint and separate: the division would be equal from the start. The reasoning of Judge Gibson furnishes at best a superficial treatment of the partnership relation and the rights of joint and separate creditors. By his pro- cess the joint and separate are reduced to a dead level, on the ground that the Common law does not recog- nize the distinction which subsists between different interests, or personce, when exercised by one person, though they are unconnected with each other, except through the link of a common individual. He main- tained that a partner, who trades in a firm, charges himself as an individual, and, in return, the individual who trades on his separate account charges himself as a partner. No w, it is true, the actions of the Common law were incompatible with different parties in one in- dividual. A man could not be sued as a partner, but only as an individual. The obstacle, however, as an incident of procedure, vanishes in Chancery, where forms do not interfere with the administration of equity. There the lack of personcB is not felt, and the different interests are accorded a separate recogni- tion. Back of the levelling which would be brought about by the oblivion of the Common law procedure to all distinction between partnership and individual interests, is the substantial right of the firm creditors, which is established at law and protected in equity. Judge Gibson put the firm creditors in a position not paramount, but subordinate, to the separate cred- itor. He said the partnership results from a contract. The partners could not, by a contract between them- 450 Pt 2, Ch. 6. Firm Property. § 103. selves, restrict their individual creditors to any partic- ular property, nor could they create any prior right in the firm creditors. In spite of the contract, the indi- vidual creditors should be permitted to proceed against the partners' joint property. If they are excluded from recourse to the joint estate, why should not the firm creditors be excluded from the separate estate ? The real equity he maintained was in the separate creditor. An arbitrary act, without his consent, had cut him off from a portion of his debtor's property. He was entitled to be paid out of all, or any part of, the debtor's estate. If there should be any limitation, the joint creditor ought to be confined to the joint estate, or, admit that he could also claim to be paid out of his debtor's separate property ; then both must stand upon an equal footing. Such a conclusion would make tenancy in common the theory of part- nership property. His doctrine of marshalling assets cannot be explained upon any other hypothesis. His plan of distribution is equality between different sets of creditors, not according to their class, but among all the individuals of each class pw rata. If the true view of partnership had been carried out, the paramount rights of the partnership creditors would have been acknowledged to their full extent. Then the firm creditors would have had an undisputed right to all the firm property, and an equal right, with the separate creditors, to the separate estate. There would be no abatement, or deduction, of the partner- ship claims against the separate estate, by reason of what they had received as a dividend out of the joint 451 § 103- Firm Property. Pt. 2, Ch. 6. estate. That would be an independent right, in addi- tion to the claim against his separate assets. The idea of equality in distribution between the joint and separate creditors .would be inconsistent with the rights of the parties, which are based upon prece- dence. The question of equality does not arise until the paramount claims have exhausted their fund, and seek satisfaction out of the common fund for both classes of creditors. The equality of distribution is limited to the separate estate, and justifies its division among all the creditors, joint as well as several, pro tanto. As this method of administering the assets has not been adopted, the true view of partnership has not prevailed in the plan of marshalling joint and several assets as finally established. The reason for the de- parture from the true principle is stated in Pt. 3 Ch. VI. But it is not to be understood that the opposite view, as developed by Judge Gibson, has maintained itself. By that theory^ the separate creditor would go against the firm property, or a moiety of it, as his debtor's property. The joint creditor would have no better claim to it tllan the separate creditor has, and both would share their debtor's property between them. The division would be equal from the start. A direct access would be given to both classes of cred- itors against both joint and separate estates. Underlying the attempts to equalize the distribution out of both funds is the notion of the individual re- sponsibility of the partners. There is no distinction between a firm contract and an individual contract, in the matter of personal liability, and by easy transi- 452 Pt. 2, Ch. 6. Firm Property, § 103. tion it may be supposed that there should be no dis- tinction made in the application of firm and separate funds to the satisfaction of such contracts. The no- tion, though proper in itself, does not meet the case. The firm creditor enjoys a priority on the firm fund, not by reason or any difference between his contract with the parties and that of a separate creditor, but by reason of an independent and vested right, which he has acquired in the firm stock in consequence of its destination to his use by means of the joint ten- ancy of^the partners. Equity, by restricting each creditor to his special fund, recognizes the joint tenancy of the partners, and adopts the Common law rule, that members of a busi- ness firm do not contribute their separate estates to the partnership. The partners trade simply in their joint capacity. But equity does not intervene to settle the basis of distribution, unless the partners have two funds. This is a distinct ground of equity, independ- ent of partnership.^ If there is but a single fund, no conflict arises for a court of equity to adjust, and the Common law prevails, with its theory of a paramount claim against the firm stock, and an equal title to the separate estate of the partners. The theory enables the firm creditors, if there is nothing but partnership property, to take it all ; but if there is no firm prop- erty, to participate in the distribution of the separate estate with the separate creditors.^ The right of the separate creditors is a doctrine of Chancery, where a joint creditor is not permitted to exercise his legal right except upon terms. The right of the firm cred- 453 § 103. F'RM Property. Pt. 2, Ch. 6. itors, as a paramount class, was asserted, and the re- striction was made only as a matter of grace to the separate creditor. The right of pre-eminence existed at law, and might be enforced. It is the refusal of the Common law to let individuals trade in the capacity of partners, without also trading in the same transaction as individuals, that gives to a partnership, at Common law, its eccentric features. A partner pledges not only the contribution which he makes to the firm stock, but his individual fortune in addition, by every firm engagement. As he cannot act in the capacity of a partner simply, but also acts as an individual, no distinction can be drawn between his liability as a man and his liability as a partner. Had the Common law adopted the universal partnership of the Civil law, in its full extent, and prohibited any dealings by a partner, except through the firm, the collision between joint and separate creditors would not have occurred, for there would be no separate cred- itors, and no equity of a partner against a firm creditor. A partner may, however, act, at Common law, on his separate account. He is not merged in the firm, as he is in a universal partnership by the Civil law. The right to act independently of the firm, enables him to create liabilities, which charge his separate estate alone. Equity treats the debts incurred by a partner on his separate account as the primary bur- den of the separate estate, a principle unknown to the Common law, and only recently acknowleged as a right. At the Common law, joint and separate cred- itors stood upon an equal footing in reference to the 454 Pt. 2, Ch. 6. Firm Property. § 103. separate estate, for the partner's personal obligation was the same in both cases. The prior execution took the fund. The Common law extension of the firm estate, so as to include a partner's separate property, which he did not contribute to the firm, and to sub- ject it to the claim of firm creditors, is rejected by equity, if the privilege conflicts with an independent right against the separate estate. The theory which charges a partner as an individual, and binds his sepa- rate estate for a firm indebtedness, is recognized in equity only when the demand does not clash with a claim against the partner which arises out of an indi- vidual transaction. I. " That a contract, which enables the parties to l What is the construction of the assignment, if accompanied by an agreement of the assignee to pay the debts? The assignment is made subject to the debts. The assignment goes with the assets, and the liability becomes the assignee's own debt, and not a personal contract with the assignor." a. Potter V. Magee, Pamphlet, p. 22, U. S. C. C. (1878). At the Roman law the price was a condition of the sale, 520 Pt. 2, Ch. 6. Firm Property. §109. and, without payment of it, the property did not pass from the seller to the buyer. Though credit might be given or security taken, instead of payment, the nature of the transaction was then a sort of tacit mortgage of the property for the price. " Von der Schliessung des Kaufs ist die Erfiillung desselben zu un- " terschelden. Diese geschleht von Seiten des Verkaufers durch die ' ""auf gesetzmassige Art bewirkte Uebergabe derSache, von Seiten des " Kaufers aber durch die Bezahlung des Kaufgeldes. Von dieser Er- " fullung hangt die Uebertragung des Eigenthums ab." 16GLUCK, Erlauterung der Pandecten. J 988. i. An assignee in bankruptcy of a partner could not reclaim a payment made by his co-partners, in fraud of creditors, though the firm assignee could. A firm, C & D, having numerous creditors, of whom A was one, became embarrassed, and stopped payment. From that time, with the tacit assent of D, C, who had put in two-thirds of the capital, and was a large creditor of the partnership for money lent, proceeded as if the part- nership had been dissolved, managed the assets as if they had been his own, continued business in his own individual name, and proposed to creditors a crompromise. To further this, he paid A a large sum in anticipation of A's share. The necessary number of creditors not con- senting, he made a general assignment of his property for the benefit of his creditors to State assignee. Then, on petition of firm creditors, who had got wind of the secret agreement between A & C, C, not the firm, nor D, was decreed a bankrupt, and B appointed his assignee. On appeal, A contended that B could not recover the sum C had paid A, denying fraud, and setting up the point that B was assignee of C, indi- vidually and not of the firm of C & D ; that the co-partnership had not been dissolved; that B did not represent the interest of D, and that D's interest did not pass to B. — Firm not dissolved; only assignee of partnership could recover here ; B is merely assignee of individual part- ner. Amsinck v. Bean, 22 Wallace 39; (1874)- ,.. If partner takes firm stock, and agrees with co-partner to pay firm debts agreement enures to firm creditors. B assigned the firm assets to his partner C, who agreed to pay the firm debts. The firm subsequently became bankrupt. Firm creditor A proved against C's separate estate. — Allowed. The agreement was in addition to partnership liability, and enured to the firm creditors. In re Long, 9 Nat. Bank'cy Reg'r 227 (1874). 3. It is only the gravity of the situation, which prevents one from considering the transaction a joke. 521 § log. Firm Property. Pt. 2, Ch. 6. Firm creditors barred by partners' distribution of assets among themselves. B, C, D &.E, traded as B, C & Co. B bought out C, and gave D & E $4,oco in secured notes for their quotas, and, in consideration for the assets, then adequate, undertook to pay the firm debts. B squan- dered the assets, and D and E, who became insolvent, assigned the notes to F, for separate creditors. A, who was surety for B, C & Co., brought bill for application of money collected on the notes to payment of firm liabilities. — Dismissed. $4,000 in notes for price, individual property of D & E, as $4,000 of assets, if distributed to them, would have been ; and conversion by partners of joint into separate estate, bars their equity and creditors' right, which depends upon it. Belknap V. Abbott, II Ohio St. 411 (1882). (B, $2,000 d' 2*000 ^"'^ nothing left to firm. E, 2,000 Firm debts, $8,000, unpaid, and separate debts $8,000 could be paid with firm funds. 4. The equity, on the contrary, springs into existence under the pressure of the partner's liability. This appears clearly in the case of a partner by estoppel. He has no property interest, and, therefore, no right to exert, as proprietor, any control over the firm assets, yet the holding out creates liability as a part- ner, and gives the party held out the partner's equity for relief from the liability imposed upon him by law.* a. Bitter V. Rathman, §69, n. 20. The equity is equally available for the creditors of the part- ner by estoppel.*" *. Buffalo City Bank v. Howard, |6g, n. 20. 5. The sale of a partner's share was held to bar his equity. His right to have the assets applied to the firm debts passed as an incident to the property assigned, as if a privilege of the debtor alone, in which the beneficiaries had no concern. But, in the language of Judge SHARSWOOD, "the equity of a part- " ner is solely grounded on his liability for the debts, which " continue after his interest is devested, and is not transferred " to his vendee. As the liability of the partners to answer 522 Pt, 2, Ch. 6. Firm Property. § 109. " personally for all the debts of the firm is not extinguished by " a sale or devesture of his interest, so neither is his equity, "which depends upon it.""^ The titles of the partners were regarded as several, and an owner may dispose of his own without let or hindrance. But, unless a full equivalent is paid, the stock is given away, and by being subjected to the purchaser's separate debts, is taken from the firm creditors. If he agrees to pay the joint debts, they should be a lien, which, being founded upon the seller's liability, and in ease of it, should entitle the creditors to insist upon the application of the stock to the firm debts. This should be implied without an indemnity. "^ The joint creditor, it is sometimes said, has no lien, even in equity, to prevent the alienation until he obtains judgment, nor upon personalty, until execution. *" This is a technical view. The joint creditors are entitled to the fund by the exclusion of the separate creditors and by the partner's equity, which appropriates the assets to the firm creditors.'^ a. Brenton v. Thompson, ? 103, n. 2, a. I. Joint assets charged with firm debts until they are satisfied. A claimed exemption. The only evidence of separate ownership was his attorney's testimony that firm A & Co. had dissolved and divided the stock. Firm creditors attached the property. State ex rel. A issued mandamus against B, the constable, to set apart the property claimed to be exempt. — Dismissed. Assets remain charged with firm debts. Till's case, 2 Neb. 261 (1874). c. Separate judgment creditor takes balance raised by joint execution, and joint creditor, without judgment, no standing to prevent it. B & C gave a chattel mortgage on their stock, as partners, to D. A brought suit, as a firm creditor. B confessed judgment to E, an individual creditor, who levied on the firm stock. D foreclosed, and after his debt was paid out of the proceeds of a sale, $670 remained in the sheriff's hands for dis- tribution. A enjoined sheriff from paying E. — Injunction dissolved. A had no standing until he obtained judgment, even to prevent firm from conveying in fraud of creditors ; no quasi-lien on firm property against either partners or individual creditor. Mittnight v. Smith, 2 C. E. G. 259 N. J. (1865). Note. — How could specific property pass by execution against a partner's interest. The JS670 represented the interests of both partners. S23 § log. Firm Property. Pt. 2, Ch. 6, Half, or $335 would not be separate estate, because account necessary of all items, in order to striiie an ultimate balance. General firm creditor no standing to prevent execution by individual judg- ment-creditors upon firm assets. Individual creditors obtained judgments, and took the firm assets 'of B & C in execution. A claimed, as a joint creditor, distribution among ttie firm creditors, and demanded an injunction. — Refused. No standing, wittiout an execution, which bound the assets at law. Young v. Frier, i Stock, 465, N. J. (1853), overruling Blackwell v. Rankin, 3 Hal. Ch. 152. Firm creditor witliout judgment no lien on stock. B gave use of his saw- mill to firm B & C, for ten years. The mill and improvements, erected with funds furnished the firm by A, constituted its sole capital. At end of four years, B assigned for his separate creditors. Assignee sold premises to D, but B remained in possession. A, without judgment, demanded a receiver, and application of proceeds of unexpired term to firm debts. — A no standing to prevent disposition made by B with C's consent. Greenwood v. Brodhead, 6 Barb. 593, N. Y. (1850). If judgment irregular, creditor may attach firm stock and establish an equitable right. B & C, Oct. 6, 1885, confessed, but clerk Oct. 10, en- dorsed judgment $891,69 to D, who Oct. 7, levied execution on firm stock. A, Oct. 10, attached stock for $1,13; with previous summons served on B & C, and enjoined D and sheriff E from selling stock. A alleged the facts arrd averred that the stock was the sole fund to which he could look for payment of his claim. Evidence excluded and judg- ment for D.— Reversed. Defective entry of judgment gave A oppor- tunity to establish equity at trial. Attachment valid without previously summoning debtors and A obtained lien, which prevented disposition of stock. Schuster v. Rader, 13 Colo. 329 s. c. 22 P. 505 (1889). The irregularity gives him a chance to intercept the sale and show an equity in the fund. In fact, the attachment by firm creditor, though without previous summons, gave him a lien which cut out the separate judgment and execution. d. I 108, n. 3. The notion that the partner had relinquished his equity, and that it passed with the conveyance, which bound him, led to the conclusion that he retained no right which his creditors could enforce. They must, therefore, make out a cause of action independently of their debtor. The outstanding liability, however, is the ground of his equity, and until the debts are 524 pt. 2, CH. 6. Firm Property. § 109. satisfied he is entitled to exert his control over them for the purpose of liquidation. The joint creditors are subrogated to his rights, and may enforce them.^ e. General creditor of insolvent firm may enjoin separate execution creditor from seizing firm assets. B & C confessed judgment to their firm cred- itors, and each partner also confessed judgments to his separate cred- itors. Executions were issued on the separate judgments, and the sheriff levied on the firm stock. A, who, though without a judgment, was a firm creditor, averred insolvency of the firm, and enjoined the sheriff. — Injunction maintained. A joint creditor, though without judg- ment or execution, has an equitable lien, which entitles him to prevent separate execution creditors from seizing firm property. They can take only the interest of the separate partners, and the firm being insolvent, they have nothing. Blackwell v. Rankin, 3 Hal. Ch. 152, N.J. (1848). If the business is continued, the right is also continued, ex- cept so far as it interferes with the rights of creditors of the new firm.' /. Lien of deceased partner's representatives limited to old firm stock, if tbey consent to continuance by surviving partners. B & C, manufacturers. B died, and his widow, D, became administratrix. C died, and his widow, E, became administratrix. Children of B & C continued business, with admininistratrix' consent, for eight years, when firm became a corporation. Upon its assignment for creditors, D & E claimed a lien in preference to creditors. — Disallowed. Lien restricted to old stock, and continuing partners, in favor of creditors of new firm. Hoyt v. Sprague, 103 United States 613 (i88o). The lien enures to the creditors of original firm. " Lord ELDON said: ' In the case of death, it is the " equity of the deceased partner that enables the creditors to bring for- " ward the distribution. iiVes. 6. If the surviving partners form " a new partnership with other persons, the joint creditors of the old " firm can follow the assets of that firm, in order to make such assets " (including the deceased partner's interest) liable for the debts of the " old firm, so far as this can be done without a disturbance of bona fide " rights of creditors of the new partnership, and of other persons. Lord " ROSSLYN said that the complainants in a bill for this purpose, ' are " creditors upon the effects of the old partnership, -not upon the effects " of the new partnership.' Daniel v. Cross, 3 Ves, 277 ;" CADWAL- ADER, J,, in Potter v. Magee, p. 22, \ 108, n. 3. 6. Deceased partner's equity, enforced by tbe joint creditors, is limited to applying assets to payment of firm debts, and not extended to prevent pre- 525 § log. Firm Property. Pt. 2, Ch. 6. ferences among firm creditors. B, C & D, partners. B died, December, 1828, and E appointed administrator. Firm continued business until January, 1829, when it became insolvent. D, without consulting C or E, assigned for preferred creditors, to P. A et al., firm creditors, brought bill to avoid assignment. — Dismissed. Surviving partner may prefer, " but deceased partner's representative," said WALWORTH, Chancellor, " has the right to insist that the partnership effects shall " be applied to the payment of the debts of the firm, as the separate es- " tate of decedent may eventually be made liable for any deficiency." Egberts v. Wood, 3 Paige Ch. 517, N. Y. (1832). 7. Equity not a property right, which passes with the stoclc. A sold out to B, who took the joint stock to pay the firm debts and indemnify A against them. B became insolvent, and threatened to appropriate as- sets to his own use. A brought injunction. B demurred. — Demurrer overruled and decree. WALWORTH, Ch.: " It is a well-settled principle " of equity that the creditors of a partnership concern have an equitable " right to payment out of the partnership effects in preference to the in- " dividual partners." Deveau v. Fowler, 2 Paige Ch. 400, N. Y. (1831). The deceased partner's estate is liable in the first instance," and the equity springs from the liability. In Pennsylvania the liability extends to a debt due by the deceased partner to his co-partner.'' a. Brewster v. Sterrett, § 88, n. 2. Deceased partner's estate liable for firm debts. B & C partners, dealt in real estate. C left all his property to D, his executor. After execu- tions and attachments had issued- against the firm estate, B assigned it for creditors to A, who brought bill to enjoin creditors, and to compel D to convey him the legal title.— Decree. Shanks v. Klein, 14 Otto i8 (1881). h. Firm creditors may collect balance due by deceased partner to co-partner. The assignee for creditors of the surviving partner claimed on behalf of the joint creditors against the administrators of the deceased partner for the amount he owed the firm, $16,790.13. The surviving partner was also indebted to the firm, $11,204.68. Both were insolvent, as well as the firm. — The debt of the partner to the firm, is a firm asset, for which he must account to his co-partner, who would first deduct his own debt to the firm, and claim one-half, $2,792.72^. The balance of $;, 585.45, is due to him on account of his share of the firm assets. McCormick's Appeal, 55 Pa. 252 {1866). 8, Joint execution any time before sale, cuts out separate executions. Sep- 526 Pt. 2, Ch. 6. Firm Property. § 109. arate executions were issued against both A and B, and subsequently an execution against the firm A & B was lodged with tlie sheriff, who, in doubt how to sell, took an agreement from counsel that the sales should be lumped, and the proceeds divided as if the sales had been made according to law. — Joint execution bound each partner's equity, and a sale or transfer could not release the lien. Change of title must be before lien attached. Sheriff was bound to make lien effective by a sale, first, on the joint execution. That is a lien on the chattels ; the separate executions, on the surplus after payment of firm debts. Coover's Appeal, 29 Pa. g (1857). What gives the court authority to make distribution upon joint and separate executions } Inconsistent returns by the sheriff, who says he made the money on both writs. The court has to ascertain how he might have sold under the writs put in his hands, and then presumes that he did his duty, or what the law prescribes, as the course for realizing under the different classes of writs.* a. If sale on joint and separate executions, proceeds go first to firm creditors. A issued execution against C, and E issued execution against C & D. Subsequently B issued joint execution. Sheriff returned that he had sold property of C & D on all the writs. A claimed payment, in pre- ference to B, out of proceeds. — Judgment for B. A no interest until firm creditors paid. King's Appeal, g Pa. 124 (1848). How did the courts arrive at the conclusion that the separate executions made any part of the fund } The joint executions would be first in order, no matter when they reached the sheriff's hands, for until a sale the title would be subject to seizure, and the firm execution would take the specific property. Instead of saying, however, that the whole fund was raised by the paramount writ, and leaving the money in the sheriff's hands for other firm creditors, the court said, that as the sheriff returned a sale on all the writs, the balance, after satis- fying the joint executions, was raised by the separate execu- tions.*" h. Sale on joint and separate writs entitles separate creditor to surplus after payment of joint execution. B issued joint execution againt C &. B, for $200. E issued separate execution against C for $233. Constable 527 § log. Firm Property. Pt. 2, Ch. 6. levied on firm stock under both writs, and sold for $400. Before sale, D notified constable riot to pay over to E any surplus which should be left after payment of B's claim, because the firm had assigned surplus to joint creditor A. Constable paid surplus to C, and A sued constable. — Judgment for defendant. Roop v. Rogers, 5 Watts 193, Pa. (1836). If a separate creditor levied on the firm stock, which was insufficient to pay the joint debts, could he be enjoined from selling.' He would be enjoined if nothing would remain over and above the debts; the separate creditors would get nothing by the sale." c. Firm creditors enforce partner's equity, and confine separate creditors to balance left after firm debts are paid. B, C & D, traded as B & Co. E and others, separate creditors, attached the firm stock for an aggregate indebtedness of 12,452.23. A, who had subsequently attached the stock, brought a bill to enjoin sheriff and for payment of a firm debt for $1,328.77.— Decree. " It follows," said REDFIELD, J., "from the " admitted fact that a partner's interest is only his share of the surplus " after all partnership debts are satisfied, that while a partnership " creditor may sell the entire interest in all the tangible property of the " firm, the creditors of the separate partner can sell only the interest of " that partner, which may be something, or nothing, as the concern " shall prove solvent, or insolvent, on a final settlement of all its con- " cerns. So that in this way the entire property of the partnership " might be sold upon execution against each separate partner, and still " nothing accrue to any of the purchasers, since all must purchase " subject to the claims of all the joint claims. This, then, being the " rule, it is useless to attempt to exclude the preference of joint " creditors, since every sale, upon a separate execution, must be made " subject to their claims, * no rule of English jurisprudence is better " settled." " Unless, then, we are prepared to put the law of the State upon a " different basis from the law of any other State, almost, upon this " subject, we must recognize the right of these partnership creditors to " be first paid. It is true, that they prevail here over the separate " creditors by virtue of a lien, which each partner is supposed to have, " by implied contract upon all the partnership effects, until all the part- " nership debts are paid. This gives him an equity prior to that of " the separate creditors; and it is only by calling this equity to their " aid, that the partnership creditors are enabled to maintain their " claims in this case. But this is not a new principle in equity, for one " man to prevail in a suit, not by his own superior equity, but in con- 528 Pt. 2, Ch. 6. Firm Property. § 109. " sequence of that which resides primarily in some third party, who is, " indeed, generally a necessary party to the bill. This is the case where " a creditor claims to have the benefit of securities put in the hands of " his debtor by some other debtor, the two debtors standing, perhaps, " in the same relation to the creditor, but one being principal and the " other surety as between themselves. So, too, in all cases where one " holds funds, which are ultimately to go in a particular channel, " equity will interfere on behalf of the party ultimately to be benefited " by such appropriation, notwithstanding he may not be a party to the " original transactions. This is always more or less the case, when a " court of equity interferes in marshalling assets." " It is upon this very principle of the law of partnership, that each " partner is bound for the whole debt of the partnership, and so, as to " the share of the other partners, is virtually a surety, that a court " of equity will suffer one partner to maintain a lien upon the co-part- " nership property until he is released from such suretyship, when all " the debts of the firm are paid. Nor is there anything singular in " enabling partnership creditors to enforce this lien, which is thus " created upon the partnership funds in favor of the creditors of the " partnership, although not created principally for their benefit, but for " the security of the other partners. This is but carrying out the most " familiar principles of the law of principal and surety, as well be- " tween themselves, as between each and their common creditor. " Authorities might be multiplied upon this point both in England and " this country." Washburn v. Bank of Bellow's Falls, 19 Vt. 278 (1847). The principle alluded to by Judge REDFIELD is called the doctrine of ex parte Waring: "The Rule ex Parte Waring," by ARTHUR Clement EDDIS, B. a.. Barrister at Law: 1876. The Court, in other instances, has assumed the tasl< of dis- tributing a fund among all the creditors entitled, although by virtue of no writ, except the one under which the sale was made.'^ In the absence of an insolvent court on adverse pro- cess, a distribution should be made by the Common Pleas. The balance could be retained for other firm creditors, who are entitled to the proceeds, and not handed over to separate credi- tors, who are entitled to nothing until the joint creditors are paid in full. d. Court marshals assets not only among execution creditors, but among all creditors. B, who had a simple contract claim against C, deceased, 529 § 109- Firm Property. Pt. 2, Ch. 6. obtained judgment against his administrator D, and entering it de terris, soid lands which belonged to C's estate. A had a specialty claim, for which he demanded payment to the exclusion of B. — Decree for A. Administrator guilty of devastavit, if he permits execution to be levied out of personal property, to the prejudice of preferred claimants. But he could not prevent the judgment creditors from taking the land. The courts, however, will not permit the proceeds to be distributed until notice has been given, in order to enable those who have preferred claims to come in and be paid. The Agricultural & Mfrs. Bank v. Stambaugh, 13 S. & R. 299 Pa- {1825). Penalty of official bond distributed pro rata among creditors without refer- ence to date of execution. B, administrator, gave official bond, for $20,000, to Commonwealth. A recovered judgment for penal sum, and his claim was liquidated at $7,162.7;. The claims against administra- tor exceeded $20,000. — A entitled only to pro rata, and court controlled executions. Wetherill v. Commonwealth, 17 W- N- 104, Pa. (1885). If the sheriff makes a return that he has made the money on a particular writ, can the court marshal the fund among other execution creditors .'' The return cannot be contradicted. A levy on a partner's interest was ciit out by a firm execution, although there was no firm, and the defendant in the execution owned the property.^ e. Sheriff's return of property sold on a particular writ conclusive. A, an individual judgment creditor of B, issued fl. fa. against him, and to this writ the sheriff returned that " he had levied all the interest of B in the business and property of B & Sons, and subsequently sold said property as that of B & Sons under execution against the firm." The fund arising from the sale under execution against the partnership, was referred to an auditor for distribution. Before him, A claimed the amount of his judgment out of the proceeds, and offered evidence to show that no partnership existed, but that the property belonged to B alone. — The auditor could not inquire into the existence of the partnership, and A was concluded by the return to his writ, and estopped from making any claim to the fund. Bogue's Appeal, 82 Pa. loi, (1876). How is the fund marshalled between separate executions when the sale is lumped >. According to the shares of the re- spective partners defendant. If one is creditor of his co-part- ners, the separate creditor of the creditor partner will take the fund.* 530 fT 2, Ch. 6. Firm Property. § 109. /. Separate executions satisfied according to respective partner's share. B invested in tiie partnershiip of B & C, over $17,000 more than C. On the same day separate executions were issued by A against C, and by D against B ; but before sale, E issued execution against the firm. Appeal from auditor's distribution of proceeds. — E should be paid first, and then D to exclusion of A, because B's advance in excess of pro- ceeds of sale. Cooper's Appeal, 2; Pa. 262 (1856). The confusion arising from the sheriff's seizure of the firm stock for separate, as well as for joint, claims was obviated in Pennsylvania by a statute.^ The act was passed to authorize the sale by a fi. fa. of the rights, claims or credits of a firm, but the language was comprehensive,_ and the courts gladly utilized it to get rid of the snarl introduced into the law by Doner v. Stauffer. A special fi. fa. was authorized to sell a partner's interest without levying on the firm stock. If two fi. fas. issue, the first in the Common law, and the second in the statutory form, the second would take precedence."^ The sheriff was not bound to execute the first, but if he did, it was only in subordination to the second. If neither writ is in the statutory form, the writ which effected the sale and made the money took the proceeds, although execution had been levied under the earlier writ. No lien was acquired by an execution in the discarded form.' g. April 8, 1873, P- L. 65. h. Special fl. fa. under Act, 1873, to sell partner's interest in a firm, necessary to bold sheriff or create a lien. A obtained judgment against B et al., June Q, 1875, and issued fi. fa. toD, the sheriff, on that date. On July 9, 187;, E obtained judgment against B et al., and July 14, 1875, issued a fl. fa. to D, which directed him to levy upon B's interest in firms of P & Co. and G & Co., each having its chief place of busi- ness in the county. D sold B's interest on E's fi. fa., and paid the pro- ceeds into court, which awarded t'lem to E, and the S. C. affirmed the award. A then sued D. — Judgment for D. Sheriff not bound to levy on B's partnership interests until he received a special fi. fa. under April 8, 1873, P- L. 65, and could not do it or appropriate the proceeds of a sale on E's execution. Hare v. Commonwealth, 92, Pa. 141 (1875). i. If neither execution for sale of partner's Interest in a firm follows require- ment of April 8, 1873, proceeds go to the writ which raised them l)y a sale 531 § log. Firm Property; Pt. 2, Ch. 6. A's fi. fa. was levied in August, 1878 ; B's als. fl. fa. was ievied in Sep- tember, and partnership interest of D in D & Co. sold September 30, 1878, for $800. A issued, September 28, 1878, vend, ex., and E, sheriff, returned in October, that he had sold on A's writ, and he paid the pro- ceeds into court, which awarded them to A. — Reversed. Neither exe- cution complied with the statutory requirement. A's execution there- fore, created no lien, and the sale was not made on A's writ, because it had been returned, and vend. ex. issued two days before sale was made. The proceeds belong to B, as the sale was made on his writ. Kain's Appeal, 92 Pa. 275 (1879). Subsequently the decision of Hare v. Commonwealth was re- considered, and it was decided that the old form of writ seized only what the statute authorized the new form to take. That is, subjecting the Common law fi.fa.to account, limited its effect to the seizure of a partner's interest, although an intangible thing upon which, as such, the execution could not operate. This construction made the statute of 1873 declaratory of the Common law, and thus put both forms of the writ on an equal footing. That decision, which held that no lien was acquired by the discarded form, was overruled. 3 y. Ordinary fl. fa.. If executed by sheriff, binds partner's interest, in prefer- ence to subsequent fi. fa. under Act 1873, especially if latter levied subject to first fi. fa. A, February 18, issued fi. fa. against B in old form, but verbally notified sheriff to levy on B's interest in B & C. Sheriff, February 20, levied Inter alia upon B's partnership interest. D, Feb- ruary 21, issued special fa. fa. under Act 1873. Sheriff, February 25, levied on B's partnership interest, subject to A's levy and sold March i. Court below awarded proceeds to B. — Reversed. Levy under A's writ bound B's partnership interest, for Act 1873 simply supplemented Act 1836, and declared the pre-existing law, which made levy bind partner's interest, but not the partnership stock. (Smith v. Emerson, 43 Pa. 456) (1862). A entitled to proceeds. Dangler's Appeal, 12; Pa. 12, s. c. 17 A. 184 (1889). May a partner dispose of his title by anticipation, and retain no share of the partnership stock, so that the separate execu- tion against the capitalist partner would cut out firm execution ? It was so held, while the stock remained unchanged,"^ but any sales and replenishing would be on joint credit, and convert the stock into partnership property.' 532 PT. 2, Ch. 6. Firm Property. § 109. h. York Co. Bank's Appeal, ^25, n. 3. /. Walter's Appeal, I25, n. ;. 9. Would execution on a judgment confessed by a firm for a partner's separate debt cut out a subsequent joint execution for a firm debt ? The firm owns its assets, and may dispose of them as it likes. Even its promise to pay a separate execu- tion devotes the joint assets to the separate claim in prefer- ence to a joint execution." Why could this not be done if payment of the separate exe- cution would render the firm insolvent .? The payment of a partner's individual debt is no consideration to the firm, and is a gift which can be made only when sufficient property is left to pay all the firm debts.^ Does the title pass ? The title passes, because the firm is bound by its own acts, although a fraud upon its creditors, and they are the only ones who can take advantage of the fraud to impeach the transfer. Could an assignee for creditors set aside the fraudulent disposition ? It was held not," though the reason was defective, and no longer obtains."^ a. Confessed judgment by firm, when insolvent, for separate debt of partner cuts out firm creditors. A lent B, partner of C, $2,000, and loan re- mained B's individual debt for five years. Then B & C confessed judgment to A for the debt. A year afterwards, the firm failed. A feigned issue to try title to proceeds of firm assets between A and firm creditors. — Judgment for A. The firm creditors had no standing to impeach the transaction, because they derived all the right they had from the partners, who made the change. The insolvency of the firm did not affect the validity of the substitution, because the partners could prefer creditors, and therefore create or pay debts up to the date when insolvency was declared. Siegel v. Chidsey, 28 Pa. 279 (1857). Snodgrass'Appeal, I 104 n. 3. h. Insoivent firm can't pay separate debt with joint stoclc. A was creditor of B & C, succeeded by B, C & D, who, when insolvent, delivered goods to A, in satisfaction of his claim. Evidence that D also was in- debted to A. Creditors of B, C & D seized and sold the goods In A's possession. A sued sheriff. — Court charged that unless jury found a debt from D, the payment was fraudulent, not because of preference, 533 log. Firm Property. Pt. 2, Ch. 6. but because an insolvent firm cannot pay separate debts of one partner with joint stock. Walsh v. Kelly, 42 Barb., g8 ; s. c. 27 How. Pr. 559 N. Y. (1864). c. Assignee, agent of assignor, not of creditors. B took ail effects of firm B & C, and agreed to pay its debts. He subsequently formed a limited partnership with two other persons, in which he was the general part- ner. He then transferred certain demands of B & C to A, as security for private debt, and on same day made a general assignment for ben- efit of his creditors to D. Suit was brought by A to recover money collected by D on claims assigned to A by B.— The appropriation to A was valid as to creditors of B & C, though the special partners or the creditors of the limited partnership might set it aside, because the as- signment is made void by statute. The assignees for creditors stand in the shoes of the assignor, and cannot impeach his transaction. Bui- lit V. M.. E. Church, 26 Pa. 108 (1856)- d. Amsink v. Bean, supra n. 2, J. 10. Partner cannot compete witli firm creditors. B, C, D & E, partners in banking, contracted to return, on a partner's death, his contribution and his share of half the net surplus, assume the debts and continue the business. B died bankrupt and bank insolvent, having $78,000 and $81,000 liabilities. A, administrator of B, claimed his portion.— Refus- ed. Contract domestic arrangement, which was subject to firm cred- itors who have a paramount right to assets. Oyster v. Short, 177 Pa. 594 (1896). 11. Tliough iand, lield by individual partners, joint, exclude separate creditors. B, C & D assigned for creditors personal property and real estate held in their individual names. Among separate creditors who all claimed prepayment, A sought to charge land, held by B, for his advances to firm. — Firm creditors satisfied first, B himself a debtor could not com- pete with his joint creditors. His separate creditors take only his title. Goldthwaite v. Janney, 102, Ala. 431 s. c. i; S., 560 (1894). Partner's creditor cannot compete with firm creditors. Firm B, compos- ed of all the partners of firm C, which had endorsed to its creditor A, as collateral for its debt to A, the notes of B. A claimed from B. — Post- poned to firm creditors. A claimed through the partners, who could give him no right, which they did not possess. McCruden v. Jonas, 173 Pa. 507, s. c. (1895). 534 Pt. 2, Ch. 6. Firm Property. § no. §110. The doctrine of destination, as applied to partnership, is an outgrowth of the partner's joint tenancy for which it is the next equity equivalent. Destination is the principle which enables the cre- ditors to get the benefit of the partners' pledging the firm stock for the joint business. The devotion of the stock to the business results in appropriating it to the creditors of the business. This is an equitable doctrine and becomes available only when courts of equity have jurisdiction of the assets. The joint estate gives the creditors the right at law, and is the medium through which the equitable principle is most perfectly realized. In the application of this doctrine, the destination given to the firm property originally by the partners makes a court administer it as firm assets, and no transfer by partners will release the fund from the joint debts, unless the firm was solvent, or an equiva- lent was received for the assignment made in good faith, and with the intention to discharge the assets of the original liability. In a leading case, the firm was composed of four. One retired, and the three continued the business, with assets about equal to their liabilities, excepting the large debt to the retir- ing partner. He re-entered the firm for a year, stipu- lating for repayment of his debts, and the balance, after payment of other debts, to be divided among his co-partners. This was, in effect, paying a partner 535 § no. Firm Property. Pt. 2, Ch. 6. with the firm assets, when the firm could not pay its creditors. He was held liable forT^the amount with- drawn from the firm assets." The right of the credit- ors is derived from the partner's equity to have the goods applied to payment of firm debts. The assignee in bankruptcy of the firm could reclaim a payment made by his co-partners, in fraud of creditors.^ On dissolution, one partner made over the firm assets to his co-partner, who agreed to pay the firm debts, and indemnify him against them. The funds transferred enabled him to pay, and his ^^rsowa/ obligation enured to the creditors in addition to their claim against the firm. They might come in upon his separate estate, like his individual creditors.^ If the firm stock is sold, and the proceeds applied to a partner's individual debt, the sale is void against firm creditors, and the stock is subject to their execution.* Unless the firm is solvent, neither partner can make or accept an assignment of firm property for his individual account.® If the trans- fer would make the firm insolvent, the assignment is void. 1. Potter V. Magee, ? io8, n. 4. 2. Amsinck v. Bean, ? 109, n. 2, b. 3. in re Long, ? log, n. 2, c. When a partner sells out, the assets go to the new firm, subject to the prior firm's debts. A partner retired, and his co-partners continued the business with the firm assets, and assumed the debts of the old firm, executing a joint bond of indemnity. — The retired partner's liability continued primarily for the old firm's debts, and he was entitled to subrogation for the debts which he was compelled to pay, not only against the individuals who executed the bond, but against the firm. Frow, Jacobs & Co. 'I Estate, 73 Pa. 459, (1873). The contrary had been decided as the law of Pennsylvania, prior to 536 Pt. 2, Ch. 6. Firm Property. § m. this decision. A firm of five members was succeeded by three of them, and later by an assignment of one's share, of two. Then the two assigned ail their stock for the benefit of their creditors. The creditors of the first two firms claimed a share in the fund. — Excluded, as their equities must be worked out through the partner's lien, which had been renounced. Limiting a partner to the payment of the firm debts, is his co-partner's equity, but not the creditors' who have no lien on the stock. A change of the assets by the partners puts an end to the creditor's preference. A sale by a partner to his co-partner in con- sideration of his payment of the firm debts, is a personal contract, and creates no lien. If the co-partner disposes of the assets, and does not pay the firm liabilities, the preference of the firm creditors engrafted on his equity dies with its stock. Baker's Appeal, 21 Pa. 76 (1853). 4. IMenagh v. Whitwell, § 105, n. 4; Goodbar v. Gary, ? 109, n. i, b: Person v. Monroe, § 109, n. i, c; Johnston v. Straus, 2 109, n. i, d, 5. ExparteMayou, 4DeG. J. & S.664 (1865). 2 108, n. 6. §111. The preference given to firm creditors can not be ex= plained on any theory of credit, nor by anything but joint tenancy. Leaving out of view the historical fact that equity simply supplied its process for the ascertainment of a partner's share upon a determination of the joint estate,* various theories have been suggested to ac- count for the course of distribution in equity. They naturally do not go to the source of the change, and explain the cause which brought about the departure from the contract system. The notion of credit, that as the joint creditors relied upon the firm assets, the sepa- rate creditors looked to the separate estate for pay- 537 § III. Firm Property. Pt. 2, Ch. 6. ment, is an assumption.^ It contradicts the experience which imputes to every man a knowledge of the law. The credit would depend upon the estate the debtor had. The partners have joint and separate estates, which are both subject to the firm's debts. The credit would, of course, be given in reliance upon both estates. The partner has a resulting interest in the firm after all its debts are paid, and his separate es- tate, which is also subject to the firm debts. His creditor could expect nothing from the partner's share until the firm creditors had been satisfied, and he could share only the separate estate with them, unless in- solvency supervened, which, under the makeshift rule of convenience, would give him a paramount title to the separate fund. The credit given to a debtor is not the cause of his estate, but a consequence of his pos- sessing the means to pay the debt. The Roman lawyers, as might have been antici- pated, worked out the equities of each class of credit- ors without inconsistency, and on principle. Their starting point was that the joint debts created or in- creased the partnership fund, while the separate debts formed or enlarged the individual partner's estate. From this origin of the funds, an equity, it was con- ceived, arises, which appropriates them, upon insol- vency, to the creditors, who, respectively, contributed to create them. This rule was sustained by analogy to the law of sale. The price, with the civilians, stood for the merchandise, and if the consideration was not paid, the property might be reclaimed, al- though the sale had been completed, by delivery to 538 Pt. 2, Ch. 6. FIRM Property. §iii. the buyer. The contract, though executed was re- scinded by non-payment.^ They followed the prop- erty, as equity lawyers do a trust fund, as long as its identity could be traced. When the property lost its distinctive character, and became merged in the mass of the debtor's estate, the creditor was entitled to an equivalent out of the mass for his property, which could not be identified on account of the debtor's con- version of it into something else. The equity springs from a recognized liability. The firm stock stood in the place of the thing sold, and the creditors whose advances had increased the stock in the place of the seller.* No such analogy exists at the Common law to explain this feature of partnership. The Civil law theory of sale does not prevail at the Common law. The specific property sold and delivered to the buyer cannot be reclaimed in any event. The owner- ship is vested in him by the sale. Insolvency does not devest his title to any property ; much less does it revest the debtor's title in the former owner. The insolvent, by his inability to meet his liabilities, is not the less, but all the more, a debtor. He owes to his creditors not the property itself, nor any other asset, but merely the price of the property. The debt is personal, without any lien or preference for its payment out of the debtor's estate. The individ- ual partner is, however, not less liable for a firm debt than is the firm itself. The several liability of the partners is no less a constituent of the partnership obligation than is their joint obligation. Both spring from the root of partnership. The joint creditors, 539 § III. Firm Property. Pt. 2, Ch. 6. therefore, are entitled, at law, to share the separate estate of a partner with his individual creditors. The firm creditors are not dependent upon an equity for their preference in the distribution of the partnership assets. They have an independent right, which arises out of the partnership relation, and exists both at law and in equity.^ Apart from the direct liability of the individual partner for the debts of the firm, his share also is subject to them. No title vests in him until the firm debts are paid in full. His creditors, who stand in his shoes, so far from being on an equal foot- ing with the firm creditors, have no claim against the partnership fund, so long as a single firm creditor is in existence. The individual partners, being liable for the firm debts not less than for their individual debts, may be held by the joint creditors. The only restriction which can be put upon the exercise of their right by a court of equity, is confining them to the joint fund in the first instance, so as not to de- prive the separate creditors of their only fund.^ The rule of convenience, as it is called, established in bankruptcy, and followed in equity, runs counter to the principle of partnership liability. At first, the joint creditors could come in upon the sepa- rate fund only upon condition that they surrendered an equivalent, if it had been received from the joint estate.'' They retained, after the repeal of their priv- ilege to resort to both funds, an independent and exclusive right to the firm assets, but they lost the right, which they had previously enjoyed in addition, to resort to the separate fund on equal terms with the 540 Pt. 2, Ch. 6. Firm Property. § m. individual creditors. The principle of this adjustment was that each class of creditors should be remanded to its distinctive fund, because the separate creditors owned the individual partner's estate by as good a right as the joint creditors were entitled to the part- nership estate/ The logic of the change made itself felt, and practice, in due season, embodied the pre- cept, by creating a right in the separate creditors to take the surplus of the joint estate, after the partner- ship creditors had been paid in full, in return for their access to the separate estate after the individual cred- itors had been satisfied. The right of the separate creditor lacks not only the support of a legal liability, which comes in aid of a joint creditor and upholds his right, but the legal liability negatives any exclusive right in the separate creditor. The joint creditors are co-owners of the separate estate. Nevertheless the legal liability is annihilated, and the right of the part- nership creditors in the separate fund is extinguished. I. The history of the method adopted to proceed against a debtor-partner's share of the joint property by execution at law, and the modification of the process under the influence of equity is accurately stated by " F. F." in an article entitled : " The legal and equitable rights of individual and partnership " creditors; with reference to the taking in execution of part- " nership property for the debt of a partner," published in 26 American Jurist 55 : 1841. 2. Potter V. Magee, ? 108, n. 4 ; Washburn v. Bank, ? 109 n. 8, c. 3. ? 109, n. 2, a. 4. The modern Civil law does not revert to the Roman conception of a sale, although there is a reminiscence of the 541 §111. Firm Property. Pt. 2, Ch. 6. primitive theory in the ius separationis maintained by some authors, on the ground that the merchandise should return to the unpaid seller, and not go to and enrich a stranger. Speak- ing of a trader who carried on business at different places, Ulpian said: " ^quissimum puto separatim tributiooem faciendam, " ne ex alterius re merceve alii indemnes fiant, alii damnum sentiant." D. 14, 4, 16. Streltig ist, ob eine Separation undnothigenfallsein Particularconcurs uberall eintreten darf, wo ein Theil des Vermbgens, welcher separirt und Gegenstand eines Particularconcurses werden soli, ein eigenes von den Gesetzen als solches anerkanntes Glitercorpus (nniversitas rerum) ausmacht, und die Forderungen der Glaubiger mit einer solchen Giiter- masse in einem besonderen Verhaltnisse stehen, wovon die einzelnen in den Gesetzen erwahnten Separationsfalle bloss Beispiele bildeten. Einige bejahen dies und stellen als Grundsatz auf : der Particular- concurs findet in alien Fallen statt, wo bestimmte Glaubiger zu einer bestimmten, als ein eigenes GiJtercorpus von dem iibrigen Vermbgen abzutrennenden und zur Befriedigung der an dieselbe stattfinderiden Forderungen nicht geniigenden Vermbgensmassein einem solchen Ver- fahren stehen, dass sie die Separation derselben von dem iibrigen Vermbgen rechtlich verlangen kbnnen. So sei namentlich den Glaubi- gem eines Kaufmanns, welcher mehrere getrennte Handlungen habe, das Separationsrecht zu gestatten. Matthiae's Controversen-Lexikon des rbmischen Civilrechts, 171, where the authorities are collected. ;. Joiot creditors, after exhausting {irm assets, come in for balance on part- ner's separate real estate pari passu with his separate creditors. B, C & D, traded as B & Sons. B borrowed $5,000 of E, and title deeds of land held by B, and contract for purchase of land were deposited for prepara- tion of mortgage to secure loan. B died before mortgage executed. Then C died. Heirs of B & C executed mortgage to E. A et al., firm creditors, enjoined D, and prayed for receiver to take land bargained for, and land held by B, disputing equitable mortgage. — Decree. Land separate property of B, but equitable mortgage not proved. Firm creditors unsatisfied by firm assets, proceed for balance against sepa- rate estate with separate creditors. SIMPSON, C. J.: " We think the " true doctrine is, as stated by the Circuit Judge with respect to the " right of the separate creditor, if any equity exists in his behalf, such " as two funds * to throw the co-partnership creditors on the partner- " ship assets in the first instance, but after the partnership assets have 542 PT. 2, Ch. 6. Firm Property, §iii. " been fully and fairly exhausted, to come in pro rata witli the separate " creditor. This seems to be the weight of authority with us. Besides, " a debt contracted by a co-partnership, is not only a debt of the firm, " but a debt in substance of each individual member of the firm, and " the property of the firm, and of each member, is liable for it. But " the property of the firm is not liable for the separate debt of a mem- " ber ; only the Interest of the member is liable, which is nothing until " the firm debts are paid. So that, because a co-partnership creditor " has an exclusive claim upon the firm property , it does not follow that " a separate creditor should have an exclusive claim upon the separate " property. In the first place, the effect of the contract is to pledge as " a basis of credit, both partnership and private property ; in the second " case, the separate property alone gives the credit. And, as to part- " nership property, there is no separate property until the debts are " paid, which is liable to both partnership and separate debts by con- " tract." Hutzler v. Phillips, i S. E. 26 S. C. 126 s. c. 502, (1887). The contract is several both at law and in equity by Mis- souri law. Firm creditor, after dividend from joint assets shares separate estate for unpaid balance of liis claim with partner's individual creditors. B & C Feb. I, 1884, gave A note for loan of $10,000, B died. A received dividend of $4,310,53 from joint assets and claimed payment of balance from B's administratorD. Allowed; Subject to B's separate debts, — Reversed. Entitled to share separate estate pro rata with B's separate creditors. Joint contract also several. Rev. St. 1879, ? 658 against deceased's est. ? 659, 660, against each partner, 661 after compromise with any 666. Hundley v, Farris, 13 S, W. 392 Mo. (1890). Overruled, apparently are on a re-hearing. Hundley v. Farris, 103 Mo,, 78 s, c, i; S, W. 312 (1891), 6. Firm creditor enforces partner's separate liability as a constituent of partnership. Equity controls exercise of right when creditor has joint and separate funds, and separate creditor only separate estate, B and C, part- ners as B & Co. Firm creditor D, attached C'sproperty for firm debt. A, creditor of C, brought bill to prevent any part of proceeds from be- ing paid to D, and to establish a preference. Both partners bankrupt, and no firm assets. — Dismissed. Separate creditor has a right to his debtor-partner's estate only when there are both joint and separate funds, on the ground that the firm creditor should resort first to the joint fund, and exhaust it, before taking the separate creditor's only fund. The bankruptcy rule not a principle, but a rule of thumb. Bardwell v. Perry, 19 Vt. 292 (1847), 543 §112. Firm Property. Pt. 2, Ch. 6. 7. Bell V. Newman, i 107, n. i. 8. Firm creditors not entitled to sbare separate estate with separate creditors for balance unpaid by joint dividend. B & C, partners, assigned for cred- itors to A. Subsequently, B assigned for his creditors to A & D, and C for his to E. Firm dividend 11 per cent. Firm creditors claimed payment out of B's separate estate for amounts not paid by joint as- sets. A and B asked for instruction of court.— Firm creditors excluded. Davis V. Howell, 20 Am. Law Reg'r N. S., 461, N. J. (i86i), with note, reviewing the authorities, by Prof, HENRY WADE ROGERS. §112. Equity interferes with the legal right of the firm cred= itors only upon the ground that the firm assets constitute an exclusive fund for the joint creditors, and that they have an equal right with the separate creditors to the separate estate. The firm fund, which the separate creditors cannot touch, furnishes the ground for equitable interference. The joint estate is not only acknowledged to be the exclusive fund of the firm, creditors, but the right of the separate creditors to their single fund depends upon their exclusion from the joint estate. As a partner's liability extends not only to his joint, but also to his separate estate for each firm obligation, the joint creditors are entitled to satisfaction out of either joint or separate estate. The law does not control them in the enforcement of this double means of satisfaction. Equity confines them to the joint estate in the first instance. This should be the extent of equitable interference. If the joint creditors do not 544 Pt. 2, Ch. 6. Firm Property. §112. obtain satisfaction out of the firm assets, tiiey should proceed for the whole claim against the separate estate, in competition with the separate creditors. But even in those States where they come in upon the separate estate, it is only for the balance un- paid by the joint assets.' The effect of this curtail- ment of the right is to let the partner pay part of his own debt out of the joint creditor's estate. The dif- ference between a dividend on the whole claim and one on the balance unpaid by the firm assets represents the amount taken from the joint creditors and given to the debtor or to his separate creditors. It is the property which induces equitable interfer- ence. The liability is unlimited, but its enforcement is controlled, in order to effect a distribution of the different funds. Equity has no jurisdiction to prevent the creditor from obtaining satisfaction out of either debtor. The prerequisite for equitable cognizance is a single debtor with two funds, not simply two debtors, nor a single fund and two debtors. In partnership, the single fund belongs to either or to both ; to, for instance, the joint, or to the separate es- tate. When that fact is ascertained, the rights of the respective creditors attach. The pledge by a partner of his separate property as security for a firm debt does not convert the property pledged into a contri- bution and thus make it available for other firm cre- ditors, who ask to enforce the secured creditor's right against the property pledged, as if it were an asset of the firm.^ The property pledged, not being firm assets, does not constitute a fund liable for the joint debts. 545 §112. Firm Property. Pt. 2, Ch.6. Does the equity which protects an independent debtor apply to a partner ?A creditor of B has no equity to compel a creditor both of B and of C to resort to C in the first instance. It is only when B establishes that, though he may be a principal in name, he is in fact but a surety for C, that he can compel the creditor to proceed against C, and C's creditors have no standing apart from him ; they could stand only in his shoes and enforce his equity.* If B and C are partners the separate creditor has no standing. Until all the firm debts have been paid no interest results to the partners and no equity arises between them for consideration. The firm creditors are superior to any equities between the partners, who are subordinated in their domestic arrangements to the paramount right. The partnership is not subverted and the joint creditors made to depend upon a balance in favor of the defen- dant partner on a settlement of the partnership account; on the contrary the partnership is maintained in its in- tegrity by the maxim of partnership law that a partner cannot compete with his firm creditor.* 1. Joint creditors of insolvent firm compete for balance unpaid by joint assets with separate creditors. B & C, bankers in partnership. B died August 4, 187;, and accountshowed firm's insolvency, debts $61,911.11; assets $39,340.76. B's separate debts $7,874.28 ; assets $10,980.73.— A et al., firm creditors, excluded separate creditors from joint estate and shared B's separate estate for unpaid balance with his separate creditors. Pettyjohn v. Woodruff, 86 Va., 478, s. c. 10 S. E., 715 (1890). 2. Security pledged by partner for firm debt, not available for firm creditors. B & C assigned for creditors. Eo die, B conveyed property and assign- ed collateral to D, endorser of four firm notes and holder of one, in trust to secure him ; subject to D's lien, B assigned the same property for his separate creditors. Assets distributed pro rata, but insufficient 1:46 Pt. 2, Ch. 6. Firm Property. § 112. to satisfy firm creditors, who claimed balance of security not used by D to reimburse them for dividend received from firm assets. — Subroga- tion refused. B only surety for primary debtors B & C ; his creditors entitled to unused security. Not two funds, as in case of firm assets, but single fund of one debtor ; he could be charged only if the primary debtor and C but surety for him : on the contrary B is surety for C. Guggenheimer V. Martin, 25 S. E., 881 (1896). 3. Security furnished by partner for firm debt not contributed, but pledged, and if not used, belongs to pledgor. B conveyed mill to D as security for debt of B & C, who assigned mill for their creditors, and B then as- signed same mill for his creditors, E. Joint assets exhausted in pay- ing D. Other firm creditors A asked to enforce D's right to security pledged for his claim. — Subrogation refused; limited to creditors having liens upon two funds of single debtor. If two different debtors, subro- gation only if between themselves, one surety for the other. Between B and C, C was not a surety. Rixy v. Pearre, 89 Va. 13 s. c. 15 S. E. 498(1892). 4. J 109 n. 10 and 11. 547 113. FiR'w Land. Pt. 2, Ch. 7, CHAPTER VII. §113. THE TITLE TO PARTNERSHIP LAND. The doctrines of equitable conversion and of equitable lien are the expedients adopted to overcome the obstacle of tenure in making land a firm asset. Land, being the original mould of English law, so far from yielding the tenets of its tenure to the inno- vations of a partnership, impressed upon it, as has been remarked, a character foreign to the relation. A joint tenancy is the best expression of the partner- ship title to land, as well as to personalty. The notion of a tenancy in common, as the legal expression of the title to personal property vested in a partnership, has not yet entirely let go its hold upon the Profes- sional mind. It was repugnant to Common law in- stincts that land should be an article of trade at all. And for this reason it has taken longer to eradicate the notion of tenancy in common in partnership land, and replace it by the theory of a joint title. The real estate owned by a firm was held in common, and the legal title vested in the partners, as tenants in common. Upon the death of a partner, his moiety descended to his heir, who was bound by the 548 PT. 2, CH. 7. FIRM LAND. § 113. partnership debts, but inherited the purpart clear of all liabilities. The destination given to the property by the partners, was, in this manner, defeated, by making the legal effect of tenure override the par- ties ' will. The rights of the firm, in real estate, had to be worked out in subservience to the exigencies of the legal title. A long development of equitable ideas was required, in order to make intention the control- ling fact, which subordinated the estate to the purposes for which it was created. The transition, from the Feudal notion of tenancy in common to a theory which gives full effect to the partnership title, and adjusts it to the partners' interests, was effected, in some cases, by the fiction of a conversion, which makes person- alty of the land, and, in other cases, by the doctrine of an equitable lien, which gives the firm and its cre- ditors a paramount right to the land. The lien could be defeated only by an incumbrance upon a partner's title, which was concurrent with the acquisition of the title; such an incumbrance was recognized in equity, as well as at law. The legal and equitable would pre- vail over the merely equitable lien. The theory of lien was suggested by and worked out through the partner's equity, to have the land applied to the pay- ment of the firm debts. By this equity a partner is restrained from using the land, except for the firm. As soon as creditors were permitted to proceed against their debtor's land, they subjected to their claims lands held in joint tenancy. If the claim was against one co-tenant, his interest might be taken, and if the claim was against both, then the whole 549 § 113. Firm Land. Pt. 2, Ch. 7. estate. This may be seen in an early case, where the claim though originally against one joint tenant, subsequently became, by the action of the parties, a claim against both, and a charge upon the whole estate.^ The title of the partners, though made subject to the debts of the firm, was not controlled beyond the exigencies of the partnership. The land, when cleared of the firm liabilities, remained vested in the part- ners.^ They held, however, not in the proportion of their interests in the partnership, but in the equal di- vision of tenants in common.^ The theory of a con- version rectifies this defect. In England, this theory has been adopted, without qualification ; so that upon dissolution the land or its proceeds are diverted from the heir, and given to the personal representatives.^ The result of making the conversion extend beyond the requirements of the partnership, was to call forth a reaction against the fiction itself. The abuse of the principle served as the argument against its use. The counter-current disclosed itself in the decisions which sought every pretext to escape an application of the fiction, although the equity of the partnership was acknowledged and enforced. The fact that the pur- chase money did not come directly from the firm," notwithstanding the purchase was made for it ; or, on the other hand, that the price was paid by the firm, but the use was not declared for it, was sufficient to prevent a conversion.^ In either event, the firm;had the equity, and the legal title was controlled to give it effect ; but not by means of a conversion. Nor if the 550 PT. 2, Ch. 7. Firm Land. § 113. partners were given mortgages by will, and they pur- chased the equity of redemption with firm money, or the devise was of a fee to them, did the land, although used for the firm, change into personalty. The right of the firm to the land is, nevertheless, recognized in equity, and the courts reverted, in giving effect to the title, to the alternative of an equit- able lien. The reason for giving full recognition to the dominion of the firm, by converting its property only personal estate, which meets the requirements of the firm, is identical with the principle of the decisions which establish a conversion. It is the after-effect of altering the course of descent, which deters the courts from resorting to a fiction which interferes with the canons of devolution, without any legal justifica- tion.^ The doctrine of equitable lien and of conver- sion, are both mere expedients. If the right of the firm is conceded, why should there be any hesitation in giving full effect to the title ? How the title came to the firm, is of no consequence. The fact of im- portance, the point upon which everything turns, is that the firm has the title. The mode of aquisition is a preliminary incident, which could have no bear- ing upon the right, when once possessed. What has the aquisition, when effected, to do with the right of property? There is no room in law, or in reason, for the antagonism of two theories to regulate the same right. The doctrine of conversion is brought in closer accord with the requirements of partnership by reconverting the personalty into land, the moment the objects for 551 § 113. Firm Land. Pt. 2, Ch. 7. which it was converted are accomplished and the part- nership is wound up. The fiction, when thus man- aged does not interfere with the devolution of the property as land. The title would pass to the part- ners, unaffected by any separate judgments recovered against them, or separate incumbrances created by them, during the partnership. The land would be after-acquired, and, as such, would not be bound by the lien of a judgment.'' The difficulty with the theory is in defining the moment when the re-conversion shall take place, when the rights of creditors, heirs, grantees, or others claiming through the individual partner, shall attach to his interest in the real estate. If, at the moment of dissolution, by death or otherwise, the title is still encumbered with outstanding claims ; if, at the final settlement of account, this is an indefi- nite period, and the title to the real estate may be held in abeyance for years. How could the devise by a partner pass the land, and the reconversion relate to the decedent's deaths when the will could not, bylawj convey subsequently-acquired land ? The decedent would either die intestate, or the land would pass as personal estate. The devisee would not acquire the land, even if the title could, by legerdemain, shift from the distributees, upon a subsequent reconver- sion, as he must establish his right to take at the in- stant of his testator's death. The subsequent shift- ing, though it were feasible, would be too late.^ The fiction should not be allowed to prevent a devolution upon the decedent's death. As a creature of equity, the conversion should be controlled by equity. The 552 Pt. 2, Ch. 7. Firm Land. § 113- land might vest in interest upon the partner's death, though not in possession until a reconversion could be effected by a settlement of the partnership accounts. This would be inconsistent with the theory which treats a partner's share in firm real estate upon a re- conversion as after-acquired land. A judgment against a partner does not bind firm lands, and, it has been held, when a reconversion takes place, that the land is a new acquisition, which, being subsequent to the entry of judgment, is not bound by its lien. But it has also been held that if a partner died, and subsequently a reconversion took place, his widow would be entitled to dower.^ The title would relate back to the husband and partner's life-time, and no one could claim except through him. If the widow's dower did not attach, neither would the heirs be entitled to the inheritance. They must claim through their ancestor, and as he could acquire only as a living, and not as a dead man, because all his rights devolved upon his death, the title must re- late back and vest in him while alive. It is subject, therefore, to all the incidents and deductions which would have affected it if he had been living when it vested in him. Why, then, would not a judgment en- tered against him in his life time, like the lien for his debts, which were incurred during his life-time, bind the title at the moment of reconversion ? Certainly not for the reason that the land is after-acquired, for if in any instance the title is carried back by relation, the hypothesis of after-acquired land is overthrown. If this relation is allowed for the widow and heirs, why 553 §113. Firm Land. Pt. 2, Ch. 7. not for the judgment, who are also lien, creditors? Might the title have been personal at the owner's death, and been changed afterwards? Then property would be shifted from executors to heirs without any notice, and by matter in pais. The devolution must be to one class or to the other. It could not be first to one and then to the other, dependent upon some extraneous event. 1. Lord Abergavenny's Case, ? lo;, n. 2. 2. Title to firm real estate. Partnership owned land. B left his share to his daughter, who died. Her husband assigned his interest to A, who claimed the whole share as personalty.— Title to partnership land passes as realty to heirs of deceased partner. A acquired only hus- band's courtesy. Bucitley v. Buckley, 11 Barb., 43 N. Y. (1850). 3. Title to firm real estate. Partnership held land. No mutual coven- ants, but intention to use it for firm purposes. Land sold on mort- gages, executed by the partners. Wife of A joined in mortgages. The surplus was claimed by assignee, and by A's heir, and by his widow. — Widow allowed dower in a moiety, though husband had a two-thirds interest in the firm. Each partner's title was subject to co-partner's equity, but proceeds remained realty, and hence widow tool< dower. Smith V. Jackson, 2 Edwards Ch. 28, N. Y. (1833). 4. The intention of the partners, which devotes the land to the firm is not limited to the effect between the partners them- selves, but it extended beyond the scope of their purpose, and alters the real nature of the property without any legal reason. Partnersliip land subject to taxation as personalty, unless re-converted by contract of partners. Partner, who afterwards retired, bought with firm funds and for the firm use land, which, upon retirement, he conveyed to B & C, the continuing partners, as joint property. B, by will, gave C option to buy his share at price fixed by last stock-taking, and to buy or rent his share of firm land. A, tax gatherer, claimed probate duty upon £22,150, price C paid executors of B's widow for his share of said land. — Recovered. Land subject to taxation as personalty. B's will could not re-convert asset into land. Binding contract requisite to effect withdrawal, Att'y Gen'l v. Hubbuck, 10 Q. B. D. 488 (1883) ; 13 Q. B. 0.275(1884). 554 Pt. 2. Ch. 7- Firm Land. §ii3- 5. Law of partnership, by ANDREW BISSET, Esq., Barrister at Law, pp. 47-56; 1847. A covenant or agreement was, therefore, required to convert the lands into partnership assets. Coles v. Coles, §13, n. 2. But, in time, the intention of the partners replaced all for- mal requirements, and any acquisition of land for the firm was sufficient to give it the beneficial title. Land used by nurserymen in partnership as nursery farm, became partner- ship stock, whether acquired by descent or by purchase. B engaged in the nursery business with hissons, C,D & E, devised his estate, including good-will of business to them, as tenants in common. They completed a purchase, negotiated by him for a farm, and took title as tenants in common. C & D bought out E, for £52,500, mortgaging the land for £23,000, and paying balance, £29,000 out of B's estate. C died, and his widow and administratrix brought bill for administration, children claimed distribution, and heir-at-law the lands. — Lands converted into personalty, and mortgages payable exclusively out of personal estate. Property involved in partnership business became firm property. James, L. J.: " It seems to me immaterial how it may have been ac- " quired by the surviving partners, whether by descent or device, if In " fact, it was substantially involved In the business." Waterer v. Waterer, L. R. 15 Eq., 402 (1873). 6. In this country the control over the land for the purposes of the business, is exerted without making a break or change in the course prescribed by law for the devolution of real estate. The courts, therefore, are not restrained from giving effect to the equity of the partners, or of the firm creditors by the re- luctance which they would naturally feel if they were com- pelled to interfere with the canons of descent. The laws of descent remain intact and unaffected by the devotion of the land to partnership uses. The effect of deciding the question, whether land is firm assets or not, apart by itself freed from the consideration of its ultimate devolution, is to simplify the answer, which is thereby limited to a single point: Did the partners intend to make the land available for partnership pur- poses? The intention, if disclosed in any mode, is sufficient to produce the result. 555 §113. Firm Land. Pt. 2, Ch. 7. Land taken for a firm debt is firm property. B & C took land in pay- ment for a firm claim. Deed to them as tenants in common. Land in- ventoried on the books as firm property, and assigned by the firm for its creditors. A et al., creditors of B, brought bill to set aside assign- ment as a fraud on them. — Dismissed. If tenants in common, assign- ment for firm creditors void as to separate creditors. If land belonged to firm, assignment valid. If bought with firm funds, it is a question of fact whether the land is separate or firm property. If taken for a firm debt, the presumption is against a withdrawal of capital and separate titles. Collumb v. Read, 24 N. Y. 505 (1862). 7. Conveyancing in Pennsylvania is founded on the lien of a judgment being limited to the defendant's title at the date of its entry. Judgment does not bind after acquired land. B confessed judgment to A in 1804. B bought a house and lot after entry of judgment and ul- timately becoming insolvent, .assigned the. house and lot to C for credit- ors in 1806. Judgment on sci. fa. in 1807 against B and terre-tenant. Premises sold on vend. ex. in 1808. — C entitled to proceeds. Colhoun V. Snider, 6 Binney 135 Pa. (181 3). Judgment against partner does not bind bis interest in partnersliip land. In a partnership to buy and sell lands. A, B & Co. took title in the name of trustees. A judgment against A & B. — It did not bind their equitable estate, although that is subject to the lien of a judgment in Pennsylvania. The judgment against a partner does not bind the land for his separate debt, nor if confessed, for a firm debt. The partner's interest is a share in the net proceeds. Kramer v. Arthurs, 7 Pa., 16; (1847). If the firm could not sell as well as mortgage clear of liens, it could not sell at all. Firm land not bound by judgment against partner for bis quota of price. B, C & D bought land for the firm, and took a deed to themselves as partners. B confessed judgment for his quota of the price to E, the vendor. Subsequently, B, C & D mortgaged the land to A, who claimed the proceeds of sale of the land under a foreclosure of his mortgage.— Held, that the mortgage was a paramount lien. The title was in the partners, not as tenants in common, and B had no tangible interest until a settlement of the joint estate; and the fact that the judgment was confessed for purchase-money, made no difference. Lancaster Bank v. Myley, 13 Pa. 544 (1850). 556 PT. 2, Ch. 7- Firm Land. §ii3- If the judgments against a partner would bind his share of the firm land, the object of the partnership would be defeated. Judgment against partner does not bind his Interest In firm land. A, B & Co. bought land as partnership property. Part of the price was paid, though B gave a judgment note for his quota, and a mortgage was given for the balance. B sold out his share to his co-partners, and they conveyed the premises before a sci. fa. was brought to revive the judgment. — The judgment did not attach B's share, which passed clear of its lien to co-partners and their grantees. JWeily v. Wood, 71 Pa. 488 (1872). 8. The right once vested could not be devested by a sub- sequent dissolution and liquidation. The notion that a firm can endure, in spite of a partner's death, is not tenable (Ch. IV). The representatives may be- come partners, and contribute the deceased partner's estate ; but his personal liability is at an end, and their liability is, if enforced, a new and different constituent. The attempt to carry out the notion ends in confusion. The deceased partner's title would not pass upon his death, but would be suspended upon a subsequent and contingent event ; and yet it does pass, and must pass immediately upon his death. Nor can there be a provisional descent or distribution in the alternative sub- ject to a recall and reversal of the course of devolution. Deatli of partner does not re-convert bis share of firm land, especially, if articles continue partnership in spite of his death. B et. al., manufacturers of iron in partnership, owned plant and adjoining land. Articles pro- vided for firm's continuance in spite of a partner's death, and substi- tuted his representatives. B died, leaving widow, C, and three chil- dren. C's second husband. A, brought bill and claimed under her will, 1-3 of B's, 1-5 interest in the partnership furnace. D and other chil- dren of B, claimed his share as real estate. — Decree. Land not re- con- verted on B's death, but remained converted during continuance of firm. Leaf's Appeal, 10; Pa. 505 (1884.) n. Partner's widow takes dower la husband's share of partnership land. A & B, equal partners, owned land, some of which had been conveyed to them as tenants in common, but all of which was purchased with the money of the firm, and held by it as partnership property. A died. By a decree of Orphans' Court expressly removing all doubts as to lands 557 114. Firm Land. Pt. 2, CH. 7. conveyed to the firm as tenants in common, and not as partners, the firm lands were sold to B. Under a settlement with those interested in A's estate, B took the lands, subject to the liabilities of the firm, for $25,000 paid to A's representatives. A's widow claimed one-third ab- solutely, on the ground of the conversion, which made the land per- sonalty.— Entitled to dower, an interest for life. In fictione iuris semper subsistit squitas; hence the conversion of the realty ends when the pur- pose of the conversion is attained. Firm real estate is personalty for the payment of firm debts. The time of reconversion is the moment the partnership is wound up, and it is determined that the real estate is no longer partnership stock, nor required for its purposes. Foster's Appeal, 74 Pa. 399 (1874). §114. Land may be made a firm asset without resort to any fiction. The confusion just pointed out is the result of re- sorting to a fiction in order to make land a firm asset. It is not necessary to declare land to be personalty in order to subject it to the requirements of the firm business. All that is necessary is to apply to land the principles which govern the partnership relation. If it is objected that there is a necessary conflict be- tween partnership principles and some of the rules which govern the title to land, the answer is that this conflict is not abrogated by the interjection of a fiction. Why not do, without disguise, what is done in fact; that is, mould the rules which govern real estate to the requirements of the partnership relation. Such a course would certainly be more consistent with the dignity of legal reasoning. 558 Pt. 2, Ch. 7. Firm Land. § 114. Land when held for firm purposes is primarily lia- ble for firm debts. This is a uniform rule of property, and no more requires the resort to a fiction for its justification, than does the liability of an individual's land for his debts. Land becomes an asset, in all respects, like personalty^ for the payment of debts. This is neither the case of uses and trusts, nor of equitable conversion. The partners are not trustees for themselves, nor is the question, whether the legal title will be controlled for an equitable purpose. The enquiry is, whether the land is liable for firm debts, and if so, how? The method adopted to subject the land to the firm debts and to utilize it for the satisfac- tion of the creditors' claims may differ from the method employed to apply personalty for that purpose ; but the principle is identical. After all, what is meant by the statement that land becomes personal property? It simply means that the title is controlled as a firm asset. The incidents of land remain unchanged. It can be proceeded against, dealt with, conveyed, encumbered, or devised only according to the rules which govern land. The land, in spite of its conversion in equity, re- tains all the physical and legal incidents of real estate. The legal holder is merely converted into a trustee for the partnership. The heir might as well be the de- positary of the legal title as was his ancestor the part- ner. The land is not changed in any of its properties. It serves as a qualification for a member of parliament. The partners, in selling, have a vendor's lien for the purchase-money. The land is taxed as real estate, 559 § 114. Firm Land. Pt. 2, Ch. 7. and is exempt from the taxation laid upon personal property. The sheriff could not sell the land on a fi.fa., without an inquisition. A division of the part- ner's share would require a partition. The title must be conveyed according to its nature as land. A deed or mortgage of it could be made by a partnership only in the form of a conveyance and by a joinder of all the partners. It is within the statute of frauds. If a conversion affected the legal attributes of the land, it might be sold by a constable, who has no power to touch real estate, or a partner might sell it as chattel, without consulting his co-partner. Upon the death of a partner, the land would go to the survivor, who would be compelled merely to account for it as an asset. The title in any or in all the partners, as individu- als, will be controlled for the firm. The destination of the land controls the title, and no partner can with- draw his share from the firm or prevent the firm's use of the land until a settlement.' Where equity is not available in Common-law actions, proof of the fact would enable the firm to secure the enjoyment of land, if the title was in the partners as individuals. The firm claim would depend upon the partner's mutual covenants, or upon an inadequate remedy at law to raise an equity, which Chancery would enforce. A partner who put the title of land, bought with firm funds, in his wife, prevented his co-partner's suit at law, and gave him .a right to enforce the firm title in equity.^ If a purchaser refused to accept a deed of the surviving partner, he could compel the co-part- ner's heir to join in the deed. The equitable title 560 Pt. 2, Ch. 7. Firm Land. §114. being vested in the firm, the legal title would be con- trolled for the beneficiary, even after descent cast.^ A partner could compete with the separate creditor of his co-partner. If the balance of account in favor of the partner would absorb the proceeds of the land, the separate creditor would be excluded.* The separate creditor acquires no lien by means of a judgment against his debtor upon the equitable title of the firm. Nor does an execution or attachment add anything to the creditor's standing. His process is without avail, because it is against the legal title, which is subordinated to the equitable estate.^ The improvements made by a firm upon the sepa- rate property of a partner, belong to the firm. The consideration which moved from the firm makes the title-holder a trustee, and prevents him from appro- priating the land without making compensation for the outlay. A foundry erected upon the land of a partner was destroyed during the partnership, and it was rebuilt with firm funds. The equitable title to the increase caused by the structure was in the firm, and it could make the partner account for the en- hancement.® The partner holding title has it in his power to convey to a bona fide purchaser, and to pass a good title against the firm. The purchaser would take clear of the firm, unless he had notice of its title be- fore he contracted his claim.'' Notice of the firm title would prevent a purchaser from claiming against it, and make him take subject to it.^ If he had not paid the whole purchase money, he would account to the 561 §114. Firm Land. Pt. 2, Ch. 7. firm for the balance,® A separate creditor could be compelled to sell subject to the firm title, ^^ If a partner delivers firm stock to his separate creditor, who accepts it in the belief that the property belonged to the individual debtor, he does not acquire title against the firm." No consideration moved to the firm for the transfer. The partner could not give away firm stock, and his appropriation of it to his separate debt is equivalent to a gift by the firm. The disposition by the title-holder of partnership land stands upon a different footing. The legal title is vested in the partner. He exerts the right which corresponds to his title. The purchaser, if bona fide, relies upon the legal investiture of title. The firm stock is personalty, and parties deal with the posses- sor at their risk. They cannot assume, but must prove his capacity to dispose of the property. I. Land survives upon the partner's death to his co-part- ners for a settlement. Land purchased by tbe firm becomes firm property, tbough tbe conveyance be made to the partners in common. The agent of B, C & Co., bought lands with firm money, for firm purposes, but had the deed made to the partners as individuals. Land was used in accordance with original intention. C, a member of the firm died shortly before the land was sold on a purchase-money mortgage. A, who was also a partner with B, C & Co., and his executor, claimed aliquot shares in surplus, after payment of the mortgage, in lieu of their purparts in the land, as ex- ecutor of C, and in his personal capacity. B & Co., the continuing firm, also claimed the excess as partnership assets.— Awarded to B & Co. Abbott's Appeal, 50 Pa., 234 (1865). Land assets for payment of firm debts. Surviving partner conveyed land to reimburse himself in part for payment of firm debts in excess of his quota.— Title passed by Common law right. Dyer v. Morse, JO Wash. 492, s, c. 39, P. 138 (189;). 563 Pt. 2, Ch. 7. Firm Land. § 114. 2. Equity, to make co-partner and wifeaccount for lands bought with firm funds, not barred by statute of limitations. A brought bill for account against co-partner B, who had bought land with firm funds, and put title in his wife. B demurred. — Overruled. A had no adequate remedy at law, and statute of limitations no bar, if A an equity, and not a legal right. Partridge v. Wells, 3 Stew. 176 N. J. (1878). 3. Land equitable assets. Land bought for firm. B took title in his own name, conveyed to A undivided half, and died, leaving child, C. A sold a portion .to D, to raise money for payment of firm debts. D re- fused to accept deed, because A owned but an undivided half. A brought bill for specific performance, and made C a co-defendant, to compel him to join in executing the deed. — Decree. Equitable title and control in A, as surviving partner. C trustee of his moiety for firm. Between partners and creditors, firm land treated as personalty. Del- monico v. Guillaume, 2 Sandf. Ch. 366 N. Y. (1845). Partner's heirs must confirm partnership title to land. A & B of Cin- cinnati in lumber business and owning timber lands in Michigan, dis- solved. — In account decree for A, who bought in land and court directed B to quit claim to A and his vendees, but B died. Heirs compelled to release any claim. Land assets and jurisdiction of partners gives court control through them over foreign lands. Dunlap v. Byers, 67 N. W. 1067 Mich. {1896). 4. Land equitable assets of firm. A & B, partners, took land, subject to mortgage, in payment ofcfirm claim. On dissolution, A paid firm debts to extent of $5,000 in excess of his proportion. A separate creditor re- covered judgment against B. The premises were sold under the mort- gage. A recovered one-half the surplus as owner, and claimed reim- bursement out of the other half in exclusion of separate creditor.— Re- covered, because land belonged, in equity, to the firm, though held by the partners as tenants in common. A was subrogated to rights of firm creditors. Buchan v. Sumner, 2 Barb., Ch. 165, N. Y. (.1847), Title of partners as tenants in common prevents firm creditor's judgment from seizing land as firm property. B & C, i88r, boughta lot for the firm and paid the purchase money with firm funds. The deed was made to "B&C, a firm composed of B andC." B and C, 1882, mortgaged lot with power of sale and added firm name to signature, though not In body of mortgage. B&C, 1885, assigned for creditors. Sale under power, 1886, to D. A, 1888, sued B&C, obtained service on C and took judgment against the firm. A brought bill against D to redeem. — Dismissed. Title to lot vested in B and C as tenants in common. Judgment against the firm authorizes execution only against joint property. Right to redeem confined to real estate, but A's title depends ■ 563 §114. Firm Land. Pt. 2, Ch. 7. upon land being personal assets. Powers v. Robinson, go Ala. 22; s. c. 8 S. 10, (i8qo). This decree requires a suit at law to be brought against the individual partners, in order to make the judgment bind the legal title, which is vested in the partners as tenants in com- mon. In other words, the equity does not exist apart from the legal title, but is based upon and springs out of it. Equity needs a legal standing and without legal process has no exist- ence. The prerequisite of equity is a legal right ! The legal title can be displaced only by a legal execution, which seizes and sells the legal estate. If partners are entrenched in an estate which cannot be devested except under a judgment against them as individuals, separate creditors have the prece- dence, for they have a complete legal right and immediate ac- cess to the land. A separate judgment at any time during the continuance of the firm would bind the land and a sale on a separate writ would pass the title. Nothing would prevent either party from selling his moiety and the firm would have nothing, although it was the true owner of the whole lot. By this interpretation of equity the firm creditor has no standing except through the joint process which results in a joint judg- ment and an execution authorizing the seizure and sale of each partner's separate estate. By the roundabout route of an exe- cution under a joint judgment, the firm creditor acquires a standing against the title-holder which enables him to assert the equitable title. As the firm creditor has no direct recourse to the separate partner and his separate estate, but gets it only through and by means of the execution upon joint process, he is not in the first instance a separate creditor. He is a joint creditor and his primary right does not depend upon a second- ary attachment. If the course of reasoning adopted in this case prevailed, a third person, who was the title-holder of land for the firm, could not be compelled to follow the instructions of the owner or firm nor of its creditors, because no suit would lie against him for a debt and no equity would arise for the creditor by 564 Pt. 2, Ch. 7. Firm Land. § 114. which he could seize and sell the land. Neither the partners nor the creditors could direct him to convey the land, for noth- ing but a suit at law would entitle them to interfere with the legal title. The real ownership of the lot which equity treats as the dominant and paramount title is ignored. The consideration and acknowledged purpose vested the equitable estate directly in the firm and equity makes the legal title subservient to the real or beneficial ownership. Equity does not renounce its jurisdiction, because the legal title is outstanding, On the contrary its function is to exert the sovereign prerogative and mould the legal title to its exigencies. Once let it be admitted that full equitable ownership has been established as in the present case, and the legal title cannot be set up as an obstacle to a decree. In New York as in Alabama the partners hold the legal title to real estate as tenants in common. But there the equity of an owner is not made dependant upon or subordinate to his right to legal process against the title-holder. In Buchan v. Sumner, relied upon to justify the ruling in the present case, the firm creditors were recognized as having a paramount title, which enabled them to appropriate and exhaust the legal title. They proceeded by bill in equity against the equity of redemp- tion or surplus which was real estate upon foreclosure by the mortgagee. Chancellor WALWORTH far from proclaiming, did not broach, the theory, that, because the creditors claimed the assets as personalty they could not recover real estate. Nor did he announce the doctrine that a bill in equity and a chan- cellor's decree were powerless to seize and sell the legal title, unless founded upon a Common law judgment and a Common law writ against the title-holder. Chancellor WALWORTH made a decree which put the over-advancing partner in the shoes of the firm creditors and then by virtue of their paramount equity awarded the surplus to him. Thus by subrogation the partner devested the legal and statutory title, which was perfect in competition with the partner himself. 56S § 114. F'RM Land. Pt. 2, Ch. 7. The contrast between these two decisions is an object-lesson for students, hi one the equitable ownership of the firm en- abled its creditors to seize and appropriate real estate which was vested at law in the partners as tenants in common. This in spite of the fact that the partner who asked subrogation had received his moiety and' could not claim the other moiety in competition with a lien-holder who had the legal and statu- tory title. In the other the firm creditors were not permitted to assert the firm's ownership, in order to enforce a clear right of the firm to the equity of redemption. 5. Shanks v. Klein, ? log n. 7, a. 6. The firm holds the title to the contribution and when a fire occurs, which makes it impossible to re-convey the structure, the agreement to re-take the premises at dissolution will not be enforced. The loss like the enhancement goes to the firm. Agreement to re-take factory contributed at valuation not enforced. A contributed $75,000 and B factory and lot at valuation $15,000, agree- ing to take it back at that price. Building burnt down and insurance, $2,942.65 paid firm. On dissolution, A credited B insurance money and retendered deed, which B refused. — Judgment for B. Value of premises about $6,000 and re-conveyance rendered impossible by fire. Goldman v. Rosenberg, 116 N. Y. 78 s. c. 22 N. E. 259 (1889). Clark's Appeal, ? 29, n. 4. The evidence must show improvements made by or for firm. The real estate must be the substance of the firm transac- tions, because unlike personal property, the use of land does not involve its ownership and it is only when the ownership is required for transacting the firm business, that the title passes to and vests in the firm. A partner's real estate not contributed to firm, unles the substance of Its transaction. B, ia 1869, took his sons, C and D, into business. They traded as B's Sons. , He built a brewery and fitted it up on his land. The firm failed in 1872, and assigned to E for creditors. B also assign- ed to F, for separate creditors. E petitioned that F should account for real estate.— Judgment forF. No proof that B contributed the prem- ises to firm. Goepper v. Kinsinger, 39 Ohio St. 529 (1883). 566 Pt. 2, Ch. 7. Firm Land, § 114. 7. At least, if secured by mortgage. Mortgage of partner's land without notice carries firm Improvements, A 6 B were partners as nurserymen. Firm planted trees upon B's land. At a sale of the land on a mortgage given by B, A gave notice of his daimforhalf the value of trees,— Notice to purchaser of no avail, un- less mortgagee had notice when the mortgage was executed. Trees would not have been fixtures between the partners. King v. Wilcomb, 7 Barb. 263, N. Y. (1848). 8. B]uitable title of firm to land binds purchaser witli notice. B,C, D&E, partners as glass manufacturers. The land for the glassworks was bought with firm funds, though title was taken in individual names. B & C conveyed an undivided 1-2 of the land to F, who had knowledge of firm's equity. Four days later, the firm assigned for benefit of cred- itors, and assignee contested F's title. F had knowledge of firm's equitable claim, and took subject to it. Mattock v. James, 2 Beas.126, N.J. (i860). Purchaser of title-holder buys subject to firm rights. A & B without funds. B, with A's consent, borrowed ji!3oo of C and took title to land. Without A's consent B conveyed tract in payment to C, who sold it for $600 to D, both aware of A's interest. C sued D for $300 balance purchase money. A intervened and claimed interest in proceeds. — Judgment for A. Caviness v. Black, 33 S. W. 712, Tex. (1895). If purchaser fails to acquire the legal title, he has no stand- ing to contest the claims of firm creditors.'' u. Deed of firm land not signed by all partners passes title subject to firm debts. A partner did not execute deed of land, held by him and co-part- ners to corporation, which succeeded firm. Bank sued partners for loan. — Judgment and execution of land. Title passed as co-partner's share subject to firm debts. Ala. Marble & Stone Co. v. Chattanooga Marble & Stone Co., 37 S. W. 1004 Tenn. (1896.) 9. Improvements in partner's land, made with firm goods, belong to firm. Devoney v. Mahoney, § 28, n. 3. 10. Where a firm creditor had accepted a judgment against the partner holding title, his claim was merged in an individual judgment, and yet he did not have the rights of a separate judgment-creditor, because his claim, having been joint, was a credit to the firm, and not a reliance upon the separate title. Averill v. Loucks, 2 93, n, i. 567 § 115. Firm Land. Pt. 2, Ch. 7. II. Separate creditor paid with firm goods liable for price. B paid private debt to C witii goods of firm, A & B. A bought out B, and sued C for price. Defence : No knowledge of firm title. — Recovered. Knowl- edge immaterial, because C made no consideration to firm, and did not deal on the firm credit. Geery v. Cockroft, i J. & Sp. 146, N.Y. (1871). §115. If the land belongs to the firm, while the title is in one or more of the partners, a purchaser without notice may rely on the legal title, but creditors can rely only on the substantial ownership. Land is not marshalled for the joint and separate lien-holders. Marshalling does not extend to liens, but they bind the land according to the dates of record.* The effect of the lien depends upon the language of the title papers. A firm may take title to land in either of two ways : The deed may be made to the partners as a firm, for example, to A and B, trading as A & Co. Then they will hold the land as a firm stock.^ The conveyance puts the title in the firm, and exempts it from individual control or disposition by a partner, and from separate liens. Or the deed may be made simply to the partners. Then they will hold as indi- viduals, and the separate liens will bind the legal title.^ A judgment-creditor of the firm could not be restrained from proceeding by execution against the separate partner's real estate.* He does not relinquish the privilege secured by his judgment, by making proof in bankruptcy, for the claim is based upon the judg- 568 Pt. 2, Ch. 7. Firm Land. § "S- ment.^ The separate creditor's equity is conceded, if at all, only against unsecured claims, and would not avail to marshal a judgment-lien. If the title is in the firm, it is bound by a judgment obtained against the firm/ and the partner's separate real estate is also bound by the judgment.'' A judg- ment against the firm takes precedence of a subse- quent judgment against a partner upon his moiety, where the partners hold real estate as tenants in com- mon.^ The judgment against the firm binds each partner's land from the entry of the judgment. If the legal title is vested in one partner, though the land was bought with firm money, and for firm use, and judgments existed against the co-partner, and subse- quent judgment against the firm, firm-creditors would take the proceeds. Neither set of claimants could avail themselves of the legal title, and the firm cred- itors are preferred, because the equitable ownership was in the firm.^ If the co-partner sought to prove a title as a tenant in common, the partner might rebut it, by proving a firm title in equity. If the legal title was in both partners as tenants in common, the sepa- rate creditors of each partner would have a legal claim, but, although they also had a lien, the equity of the firm creditors would, elsewhere than in Pennsylvania, cut them out.^" In Pennsylvania, no partner has the right to contradict the legal title after a lien has at- tached." Land held by partners, as tenants in com- mon, was put into their partnership business, which consisted in buying and selling land. The articles of co-partnership were in writing. They sold the 569 §115. Firm Land. Pt. 2, Ch. 7. land, and received part of the purchase-money. The balance was attached by a separate creditor, under his judgment in the purchaser's hands. The attachment was an election to treat the fund as personalty, which could be proved by parol to be partnership assets ; but the proceeds stood in the place of the title, which was bound by the lien.'^ A judgment against a partner does not bind his quota of the land when the title is put in the firm. His share is only an ultimate balance of account, and entitles him to no part of any specific asset. The judgment would not have anything to bind until the balance was struck, and then the porfion of land would go to him as a new acquisition.'^ Land will be marshalled between joint and separate creditors. The partner's right should enure to the creditors, and entitle them to claim the land where the firm has the equitable title, as a partner should be subrogated to the creditors whom he had paid and be reimbursed out of the equitable title of the firm to land held in common. The mortgage by a partner of his separate estate for a firm debt makes the land security for a joint claim, and, to the extent of the mortgage, firm assets between joint and separate creditors.'* After the liens against the title-holder are satisfied, the land will be marshalled in favor of the equitable owner. A purchaser from a partner of land bought with firm assets, and for firm purposes, is made to pay the balance of the price to the firm, although the legal tide is in the vendor.'^ If no question of any credit founded on the record- 570 Pt. 2, Ch.. 7. Firm Land. § "5- title is presented, the courts of Pennsylvania enforce the firm title.'" 1. No marshalling of judgment-creditor's lien. D took real estate of each partner in execution on his judgment against B & C. B subsequently assigned, for creditors, to A, and B & C, also assigned for creditors, to E. C ^yas insolvent. A & E enjoined D, on ground (i) estopped by proof of claim under assignment against B & C ; (2) could not take se- parate estate until separate creditors paid in full. C's answer: Claim made expressly on judgment, and no relinquishment of any privilege secured by his judgment. — Injunction dissolved. Equitable rule can't deprive C of the lien of his judgment. Howell v. Teel, 2 Stew. 490 N. J. (1878). Note by Reporter. 2. Lauffer v. Cavett, | 9, n. 3. 3. Nothing but record title In firm a bar to iudgment against a partner. A recovered judgment against B, October 19, 1876, for$5ii.ii. October 23, 1876, firm of B & C, engaged iij buying and selling real estate, as- signed for creditors, to D. September 29, 1881, A brought scl. fa. to re- vive. D's affidavit of defence: B no interest, except as a partner in the real estate, which " was all the property of the partnership," and not sufficient' to pay its lien creditors. — Judgment for want of sufficient affi- davit. Facts not set forth : i, deed vesting title in firm ; 2, contract, recorded, by partners to hold real estate as firm stock, or, 3, notice to individual creditor of firm title before debt contracted. Revival would prejudice nothing. Kepler v. Erie Dime Savings & Loan Co., loi Pa. 602 (1882). Supra, n. I. 4. Wisham v. Lippincott, ? 78, n. i. 5. Howell V. Teel, supra, n. i. 6. Judgment against the firm hinds its real estate. B &° C, for loans made to the firm, gave judgment notes to A etal., and they entered them up against the firm, which owned real estate. The assignee in bankruptcy sold the real estate, and claimed the proceeds, which A et al., disput- ed with him. The register ruled out the judgment creditors, because no lien could attach to firm real estate, which is personal property.— Judgment for A et al. Firm real estate retains its incidents for lien of judgment, as well as by mortgage. In re Codding, 9 Fed. Reporter 849 (1881). 7. Judgment against firm binds partner's separate real estate. D et al., firm 571 § 115. Firm Land. Pt. 2, Ch. 7. creditors, recovered judgment against B & Co., in 1852. A, separate creditor of B, recovered judgment against him, and sold his land. A claimed priority out of proceeds. — Judgment for D et al. Priority of record lien determines who tai The attorney's emp- loyment was consideration for the barber's shaving. The fees were not divided and apportioned, but kept joint. They were a set-off as a joint claim, rather than as separate claims. Each partner used the joint claim for the individual service according to the contract. The assignment merely expressed what the partner meant and should have been given effect. 9. Smith V. Myler, supra n. i. THE PARTNER MAY ,SET-OFF A FIRM CLAIM AGAINST HIS IN- DIVIDUAL DEBT, IF HIS CO-PARTNERS CONSENT TO THE APPROPRI- ATION. They can do with their own what they please, and may devote it to paying off a partner's debt. If the firm consents to the partner's use of its claim, he 670 Pt. 2, Ch. 8. Powers. § 134. may apply it by way of set-off against his separate debt. He owns the claim by a joint title, and no one but his co-partner can object to the application.'" The defendant partner could not make the set-off without the consent of his co-partners. The plaintiff in such a case would not be entitled to rely, as Re- NAUD states," upon the implied authority of the part- ner, who does not act on behalf of the firm, and the use of the firm asset to pay his private debt is notice to the plaintiff, who, as an individual creditor, partici- pates in the fraudulent misappropriation of the firm asset. 10. Co-makers of a promissory note, who were sued by the payee, set-off a debt due by the plaintiff to a different firm, of which the defendants were partners, their co-partners having consented. Tustin v. Cameron, 5 Wharton 379, Pa. (1840.) Firm clerk's recognition of a partner's agreement to set-off firm debt against his individual debt binds firm. C hauled wood for A, who agreed to pay him in goods from store of A & B. A received first load, and firm clerk received three other loads. A & B sued C for balance, less three loads received by their clerk. — Bound to credit the four loads, as firm clerk acted on basis of A's contract. Hood v. Riley, 3 Gr. 127, N.J. (1835). The surviving is a liquidating partner and cannot use a firm claim, which belongsto estate of the deceased partner. His death prevents his giving consent. His creditors rights attach and preclude any change in his estate. 11. " Wird ein Gesellschafter aus einer Privatschuld belangt, so kann " er mit einer Forderung, welche der Gesellschaft gegen den Klager " zusteht, dann nicht comperisiren wenn er von der Vertretung der So- " cietat ausgeschlossen ist, da ihm iiber einen solchen Ausspruch, unge- " achtet er Theil an demsellen hat, keinerlei Disposition zukommt. Ist er ' ' dagegen von der Reprasentation der Gesellschaft nicht ausgeschlossen , " so ist er zur Compensation mit der ganzen Gesellschaftsforderung " ohne RUcksicht darauf, ob die Wettschlagung im Interesse derSoci- 671 §134- Powers. Pt. 2, Ch. 8. " etat liegt, um desswillen berechtigt, weil er Dritten gegeniiber ein " unbeschranktes Verfugungsrecht ijber den Gesellschaftsfond hat. " Zwar wird hiergegen geltend gemacht, es konne der reprasentations- " berechtigte Gesellschafter nur im Namen der Societat iJber deren " Forderung verfiigen ; eine solche Verfugung liege aber nicht vor und " sei nicht moglich, wenn der in eigenem Namen verklagte Socius auf " die Klage sich einlasse. AUein es kann daraus einer Privatschuld " belangte Gesellschafter so fern er von der Vertretung der Socitat " nicht ausgeschlossen 1st, sich Namens letzterer eine Gesellschafts- " forderung ijberweisen, um sie alsdann zur Compensation zu be- " nutzen, ja ohne formliche Ueberweisung im Namen der Gesellschaft " zustimmen, dass deren Forderung zur Wettschlagung benutzt " werde." RENAUD, s. 439. IN AN ACTION BY A PARTNER, THE DEFENDANT MAY SET-OFF A CLAIM AGAINST THE FIRM. The partner owes the debt (defendant's claim), as an individual, and he cannot object to pay it when made a set-off to his separate claim.'^ 12. " Klagt endlich ein Gesellschafter eine Privatforderung gegen Drit- " ten ein, so kann dieser eine ihm gegen die Gesellschaft zustehende " Forderung mit dam ganzen Betrage in Aufrechnung bringen, weil " der Verklagte seinen vollen Anspruch klageweise gegen den Socius " geltend machen konnte. Aus dem namlichen Grunde fmdet eine " Compensation gegen einen Commanditisten hier nur insoweit statt, " als dieser fiir die Gesellschaftsschuld direct dem Glaubiger haftet.'' RENAUD, ss. 439-40. If a landlord sues his tenant for rent, he can set-off damages duehimby the landlord's firm. The plaintiff is separately liable for the damages and they correspond to his claim. Set-off of firm debt agaiast partner. Plaintiff firm not disqualified by failure to file certificate unless defendant objected by demurrer or answer to complaint. A & Co. let premises to B upon condition that if lot was sold go days notice sufficient to terminate lease. Firm sold to A who recovered rent without deduction for $25 damages due by firm. — Judg- ment affirmed, if A remitted $2;. A as partner liable for firm debt. Dunn V. Jaffray, 36 Kan. 408 s. c. 13 P. 781 (1887). A SURVIVING PARTNER CANNOT SET-OFF A FIRM CLAIM AGAINST HIS INDIVIDUAL DEBT. 673 Pt. 2, Ch. 8. Powers. § 134, Originally, he could do it, because the firm's rights of action survived to him alone,'^ although the act would be a breach of the relation/* Now, however, since the deceased partner's estate is charged with the firm debts, the surviving partner should not be permitted to use the firm claims by way of set-off.'^ At the death of the partners the rights of their cred- itors become fixed, and a claim not previously estab- lished is unavailable for set-off.'® 13. A surviving partner could set-off his individual debt against a firm debt, or a firm against an individual debt, because the rights of action survived to him. Henderson v. Lewis, 9 S. & R. 379, Pa. (1823). 14. But this is a breach of the relation, i Lindley, Law of Partnership, 529. 15. The claims remain distinct. Separate claim of partner will not keep open and running an account be- tween firm and stranger. A, as surviving partner, sued C for items barred by statute of limitations. C had set up a counter claim against A individually, not yet outlawed — Judgment for C. The accounts were not mutual, so as to give A benefit of the date of C's last item. Eld- ridge v. Smith, 144 Mass. 35 (1887). 16. Equality of distribution prevents a set-off after the death of the partner. On the death of a surviving partner, his executors attached the pro- perty of a firm debtor in the hands of a bank, and obtained judgment against the garnishee. The garnishee attempted to set-off a claim against the firm on an endorsement which fell due after the surviving partner's death. — Disallowed. An unlawful preference. Distribution must be equal among the creditors of decedents. Cramond v. Bank of United States, i Binn. 64, Pa. (1803). A PARTNER WHO IS SUED FOR A FIRM DEBT CAN SET-OFF HIS CO- PARTNER'S CLAIM AGAINST THE PLAINTIFF, IF THE CO-PARTNER CON- SENTS. The authority to make the set-^off must be ex- press. No such power will be implied, for that 673 § 134. POWERS. Pt. 2, Ch. 8. would enable a partner to increase arbitrarily his co- partner's contribution. A creditor may enforce the several liability of the co-partner in the first instance, but the partner has no right to compel the payment of a firm debt out of the separate estate of his co- partner, except by way of contribution to a payment previously made by himself. The partner, if compelled in the separate action to pay more than his share of the firm debt, is entitled to contribution, and therefore, he in fact represents his co-partner for the excess. By allowing the set- off, the co-partner who was not joined, simply pays a debt for which he would ultimately be liable. If a partner should refuse to avail himself of such a set- off when offered by his co-partner, he would deprive himself of his right to contribution for the payment which he had needlessly made. Where the partner who is sued has already paid more than his propor- tion of the firm debts, it would be important for him to compel the application of his co-partner's claim to the satisfaction of the firm obligation. He could not accomplish this end by the machinery of the Common law. A plea in abatement for the non-joinder of his co-partner would not serve his purpose. That would enable him to fix the liability, but not to control the separate property of his co-partner. Yet he would have a clear equity available in a Court of Chancery. But there must be some proceeding in which the part- nership account and all the parties are before the court. The objection is merely formal. The debtor co-partner can- 674 PT. 2, CH. 8. POWERS. § 135. not make his claim available against the firm creditor who sued the partner, for the balance depends upon a settlement of the partnership account; the partners must be parties to the ad- justment, because equity refuses to take an account as acces- sory to a suit between one partner and a stranger. If the partners agree why should an account be required ? The creditor could not dispute either joint or separate claim to pay him. The use of co-partner's separate claim against the plaintiff does but anticipate ultimate contribution, and en- force it in advance. §135. An assignment for creditors is not within a partner's competence. No such assignment by a single partner is allowed, except when his co-partner is out of the jurisdiction, and cannot be consulted, and then only if an adverse sale is impending.' Under such circumstances, the authority is implied to a partner who may exert the power, as he represents his co-partners, rather than let a stranger exert the power and effect a forced sale, which might sacrifice the stock.^ The partner, it is said, by such an assignment, delegates his capacity to the assignee, and this dele- gation is, by the general principles of partnership, beyond his authority.^ The correctness of this rea- soning may be questioned. The assignment does not involve the delegation of a partner's capacity, for the assignee becomes a trustee for creditors, and not 675 §135- POWERS. PT, 2, CH. 8. merely a substitute for the partner. The assignee, it is true, does, in part, discharge the function of a part- ner, inasmuch as he applies the assets of the firm to the payment of its debts. But the sheriff would per- form the same function. True, he only executes an adverse process, but the difference between the effect of an execution and of an assignment in this respect is only apparent, for it is not maintained that a partner can appoint an assignee, except to forestall an execu- tion. A partner can not prejudge the expediency of an act which may involve the existence of the firm, and the financial career of its members, unless it is obvious that there was no alternative. In such a dilemma, it is proper that the discretion should be ex- ercised by one identified with the business rather than by a hostile creditor.* . In considering this question, it must be borne in mind that a partner is clothed with a power similar in kind and greater in extent in those jurisdictions where he is permitted to confess a judgment under which the firm assets may be sold, because this power has never been made dependent upon the absence of his co-partner or the inability to consult him.^ An assign- ment for creditors by a partner is permitted only as a means of forestalling adverse proceedings, and thus becomes a protection to the firm ; but a confession of judgment is a surrender of the firm to a hostile creditor. The requirement of a surrender by the partners of their separate estates would of course prevent a part- ner from acting for his co-partners. Each could alone convey his separate title. 676 PT. 2, CH. 8. POWERS. § 135. If the assignment relieves tiiem from their debts and entitles them to exact a release from the firm creditors they must give up all the property which could be seized by the creditors including the separate estates.^ I. Sloan V. Moore, Supra ? 119, n. i. Power to assign for creditors not implied in any number of partners less than all. A being in Europe on firm business, B & C notified him of embarrassment, and asked him to return. He dispatched a letter, which was received, saying he was en route. He was delayed by stress of weather, and nine days before his arrival B & C assigned for credit- ors to D. A brought bill for dissolution account, injunction and receiver. — Decree. No authority to assign in anticipation of A's re- turn. Wetter v. Schlieper, 4 E. D. Smith 707, N. Y. (1858). All partners must join in assignment for creditors. In absence of co- partners, D and E, on business, one in Cuba, the other in California, B and C assigned to A, for creditors, with preferences. F levied on goods in hands of A, who sued to recover. — Judgment for F. No emergency to justify assignment by less than all co-partners. Pettee V. Orser, 6 Bosw. 123, N. Y. (i86o). A partner may, of course, assign his separate estate for the satisfaction of the firm creditors. Partner in insolvent firm may convey bis separate property In satisfaction of a firm debt B, member of insolvent firm, conveyed his separate property, to certain firm creditors, in satisfaction ; then firm made as- signment. Assignee sought to include conveyance as part of assign- ment. — Dismissed. Partner may apply his separate property to pay any firm creditor in full. Elgin Watch Co. v. Meyer, 30 Fed. 659, Mo. (1887). Assignment autborized by cO'partner witb preference valid, altbougb witbout preference. B & C, of New York, being embarrassed, B started. May 3, for Australia to sell goods and raise money. C telegraphed him at San Francisco to return, but B replied that the change of plan would affect the creditors. He told C to go on, get an extention, if necessary, and if he had to assign, to prefer D and E. C went on till October g, he having then paid D and E, assigned for creditors. A et al. judgment creditors of B & C sued to set aside assignment.— Valid. Authority to assign not subject to preference as a condition. Klumpp V. Gardner, 114 N. Y. 153 s. c. 21 N. E. gg, (1889). 677 §135- POWERS. PT. 2, CH. 8. A partners knowledge of his co-partner's assignment for the benefit of creditors, and his failure to dissent are taken to be a tacit ratification. If the partner does not dissent within a reason- able time, he will be presumed to have ratified the assignment. Partner who does not repudiate co-partner's assignment within a reason- able time ratifies it. B & C, July 2, 1891, assigned for creditors. D, a co-partner, aware of the assignment, did not repudiate the act or take any steps to avoid it. Firm creditors, September 25, sought to set it aside. — Valid. Corbett v. Cannon, 45 P. 80, Kan. (1896) 2. If partner absconds, co-partner may assign for creditors. B & C, part- ners, mortgaged firm stock to D, creditor of B. Then B absconded, and C assigned, for creditors, to A, with preference to mortgagee. After A took possession, sheriff levied on goods, and A sued him to recover possession. — Recovered. Assignment good, though preference void. Kemp v. Carnley, 3 Duer i, N. Y. (1853). Assignment by partner for creditors allowed to save firm stock from adverse and forced sale by execution creditor. C & D were partners in coach- building, and contracted debts. A levy was made on their stock in trade, consisting, inter alia of unfinished carriages. D, thereupon, ran away, and left the country. To save loss, C executed a bill of sale of the entire stock to A and the other creditors. The sheriff, B, then gave up the stock to A and others, who took it. employed workmen, among them C himself, and carried on the business. Then an execution issued, at the suit of E, against C & D, which was put into the hands of B, who, being indemnified by E, levied on the property in the possession of A and others, as the property of C & D, and sold it. A et al. brought trespass against B. Defence: That the bill of sale was illegal, be- cause of the entire stock, and by C alone, especially as it was under seal, and, further, that the employment of C by the plaintiffs was part of the consideration of the transfer, and invalidated It. First point ruled against the defendant. Second point ruled for the defendant, if the jury should believe the fact. But verdict for plaintiff, and judg- ment accordingly.— Affirmed. ROGERS, J.: " It is a general principle " of the law of partnership, that the partners are bound by what is done " by each other in the course of the partnership business. * * * Among " the powers most ordinarily exercised by partners, is the ius dlsponendi. " * * * It is admitted he can sell part without the actual consent of his " associates, and the policy of limiting that right is not very apparent, " when the transaction is conducted in good faith ; still less in a case " like the present when the arrangement is most clearly for the benefit " of the firm. * * * When the assignment is bona fide, I cannot doubt 678 PT. 2, CH. 8. POWERS. § 135. " the power of one partner to transfer the whole, as well as a part of the " partnership effects. * * * The fact of fraud was left by the Court to " the jury, and they have found that the contract was bona fide." Deckard v. Case, 5 Watts 22, Pa. (1836). Partner's assignment of firm assets for creditors vaiid unless non-assent of co-partners proved. B & C, at New York, and D, at Rio, partners. B, IWay 17, 1884, assigned in firm name for creditors. A recovered judgment November 17, 1884, but not obtaining satisfaction, brought suit June 6, 188;, to set aside assignment as fraud on creditors. — Noth- ing but firm assets. Assets in Brazil subject to local creditors. Judg- ment for A reversed. No proof that co-partners did not assent. Hooper v. Baillie, 118 N. Y. 413 s. c. 23 N. E. 569,(1890). If partner incompetent to assign for creditors why is consent of co-partner presumed ? It is inconsistent with the disqualifi- cation. The assent is an integral part of the capacity. It must be established in order to exert the power. 3. Partner cannot assign for creditors without co-partner's consent, and Inter- vening attaciiment taltes precedence. B & C were insolvent, and B pub- lished dissolution. He assigned for creditors, to D, and filed the assignment. Later in the day, A attached firm property. D had pre- viously consented to be trustee, but the assignment was not delivered to him, nor did he know of it, until after the attachment, when he at once accepted the appointment. C, though in town, was not consulted by D when he made the assignment. When informed of it, C at first hesitated, but subsequently consented to it. Parties agreed to let D sell the property attached and hold the proceeds in its place. A dis- puted them with D. — A recovered. Assignment not an ordinary firm transaction. B not acting as, but appointing, an agent. He could not assign for creditors without C's concurrence, and intervening attach- ment cut out the -assignment. Holland v. Drake, 29 Ohio St. 441 (1876). One partner cannot assign for creditors. B assigned firm stock to C, for creditors, without knowledge of co-partner, A, who enjoined B & C. — Decree. Partner cannot delegate his discretion. Hayes v. Heyer, 3 Sandf. 293, N. Y. (1849). Partner no power to assign for creditors if co-partners at liand. A ma- jority of partners assigned for creditors. It would appear that the minority were consulted. — Assignment invalid. Partner may assign all firm stock to firm creditors, but not appoint a trustee, i. e., a third person, who will control co-partners in liquidation. He cannot delegate 679 § 135- Powers. Pt. 2, Ch. 8. his own authority, nor deprive his co-partners of power. Fisher v. Murray, i E. D. Smith 341, N. Y. (1850). The partner can neither delegate his own or limit his co- partner's capacity. An agent could not exert the co-partner's rights. Thus a clerk can not create an independent liability against the firm,^ but he may carry out a contract made by them.^ a. Agent cannot use partner's name for firm. B was managing clerk, with authority to give notes for firm. He signed a partner's name and sub- scribed his own initials to a note given to A on firm account. B so signed notes before, and paid them with firm money, but without the knowledge or authority of the partner, or of the firm. A sued on the note. Defence: A firm transaction. — Liable, because note not given in firm name, and no authority to act for firm in a partner's name. Palmer v. StepheAs, i Denio 471, N. Y. {1845). h. Hood v. Riley, supra n. 10. 4. Assignment or mortgage of entire firm stocic void, unless witb consent of all the partners. B & C, partners, insolvent. C made, November 8, 1886, firm note to A, for $2,529.31, for merchandise, due November 9, 1886, secured by chattel mortgage of all the firm property. A fore- closed. Defence : Partners agreed, November 6, i885, to assign for creditors, to D. Assignment prepared by attorney, and, November 9, B executed it for the firm. D accepted. — Judgment for D. Assign- ment made with C's concurrence valid. Mortgage without B's assent void. Osborne v. Barge, 29 Fed. 7*5 (1887). 5. Supra §126. 6. Special partner failing to comply with statute must join general partners in assigning his separate as well as joint property for creditors. B & C, general partners, D, special, contributed merchandise ; statute re- quired cash. Firm assigned for creditors, but D did not assign his separate estate. A et al. objected to release executed as consideration of dividend. — Assignment invalid. D, a general partner, and must con- tribute his separate property. Claffin v. Sattler, 43 Minn. 439 s. c. 43 N. W. 482 (18Q0). 680 PT. 2, CH. 8. POWERS. § 136. §136. The assignment for creditors by a partner is prima facie a dissolution of the firm. An assignment for the benefit of creditors is not necessarily a dissolution of the firm. The stock goes to the assignee.* The good-will belongs to the cred- itors, if it is an asset. The partnership might go on if not only the business itself, but also the name which individualized the firm passed to its creditors. If they, like the creditors in Cox v. Hickman, or a Scotch bankruptcy, took possession of the firm and ran it. for their own benefit, the partnership would be suspended during the interval. They would not be restrained from the use of the firm name, or from any solicita- tion of the firm customers. Without either or both of these constituents, the firm would be in suspense. But the assignment is not equal, in its effect, to a bankruptcy, and need not dissolve the firm.^ If the debts are paid off by the assignee a right may result to the firm or to the partners, who can proceed to. trade again. It is a question of intention for the jury. If to re- sume after a settlement, a subsequent bankruptcy would stand; if a dissolution intended, no firm exists to be put into bankruptcy.^ The result is that, upon a re-assignment of any surplus to the partners, a former creditor would compete with new creditors of the resuscitated firm. I. Unless restricted to the firm stock, the assignment also carries the separate estate of the partners. 681 § 136- Powers. Pt. 2, Ch. 8. Partners' assignment for creditors not confined to firm property by con< struction. A & B assigned all their property for creditors, describing themselves as a firm, and stipulating for a release. — Sustained, because not in terms confined to firm property. Orr v. Ferrell, 68,, Texas 63S s. c. 5 S. W. 490, (1887). 2. But the prima facies is often taken for the invariable effect.^ a. Assignment for creditors dissolves firm. A & B assigned for creditors, who accepted their dividend as payment. Certain articles mentioned in the assignment as by law exempt, were returned to the partners who had contributed them, respectively. A brought bill for account against B. — Dismissed. Firm dissolved by assignment, and nothing to ac- count for. Wells V. Ellis, 68 Cal. 243 s. c. 9 P. 80 (1885J. 3. A partner may malce an assignment for creditors. Whether assignment worlcs a dissolution, or not, for jury. B, C, D & E, partners. B made an assignment of all firm property, to F, for creditors. Subsequently, B, D and E assigned to G, for creditors. D continued business, under old firm name of D & Co. H, of firm H & I, signing petition for him- self and co-partner, obtained a commission in bankruptcy against the four partners. A sued the firm for an old debt. Defence: Bankruptcy. A attached petition and denied firm existence. — Validity of bankruptcy proceedings depends on the effect of assignments. If firm dissolved, no joint commission could issue ; if firm continued, the proceedings regular. Question for jury, whether the assignments meant to close firm transactions for the future, as well as for the past. Pleasants v. Meng, I Dall. 380, Pa. {1788). A firm note made by a partner after an assignment for cred- itors might bind the partners : If they meant the assignment to be a temporary suspension, and not a dissolution of the firm. They might expect to use the assignment as a means to effect a settlement with their creditors. A note, given to obtain a creditor's release, would be in pursuance of such a plan, and would on that ground, bind the co-partners. Firm note by partner after assignment for creditors, valid, co-partners knowing transaction and benefitting by the proceeds. B, C & D July qi 1886, assigned for creditors to E, who compromised with them for 66% per cent. Subsequently C gave firm note to A for $3,000 to make up the 2-3, and obtain a release of firm property. At that time partners executed articles of dissolution. A sued all partners. Court, also sit- 682 PT. 2, CH. 8. POWERS. § 137. ting as jury, found : i. Assignment did not dissolve partnership. 2. Partners received proceeds of note. 3. Knew of negotiation for loan and were present at making of note. Judgmentfor A. — Affirmed. Quot- ing § 136: " This we believe a more reasonable, and therefore correct, " rule than the one which holds that an assignment, ipso facto, in all " cases, operates as a dissolution." At any rate partners authorized and ratified C's act in making the note. Willlston v. Camp, 9 Mont. 88 s. c. 22 P. 501 (1889). §137. The authority of a partner cannot be restricted by his co^partners. Each partner has authority to act for the firm, and the co-partners' forbidding him does not devest him of his authority, although notice of the prohibition is given to the person who is dealing with the part- ner.^ The partners have created a joint estate, which in- volves its joint control and management by the part- ners, who are identified with it. No partner would be permitted to destroy what he induced his co- partners to create. He could not frustrate the pur- pose for which the business was undertaken. He could not block the business by preventing his co- partners from carrying it on. In conducting the business, each partner can act for all and his right cannot be restricted by his co-partners. The insolvency of a partner does not deprive him of the right to manage the business. The solvent partner cannot claim that insolvency is equivalent to 685 §137- POWERS. PT. 2, CH. 8. death, and invests him with the rights of a surviving partner. The insolvent partner cannot be ousted from his control, except for cause shown.^ A partner cannot by notice revoke his co-partner's authority to collect a firm claim. The authority is not subject to the partner's control, even upon insolvency and dis- solution.^ There is no supremacy among partners, but they are all equals. The partner's right is incident to the business. He may lease premises for the firm.* Each attorney ex- erts the powers of all in legal transactions.^ A part- ner may re-deliver goods upon a return of the firm notes given for the price. The merchandise returned satisfies the debt, although the insolvency of the firm prevents it from satisfying its other creditors.^ 1. Partner's authority in firm business cannot be restricted by a co-partner. B, C & D, partners. B drew on A for the firm use, and gave a writ- ten indemnity in the firm name. C, in A's presence, dissented from the indemnity, but subsequently applied the proceeds of the acceptance to the payment of rent on a lease, taken in his own name, of the store occupied by the firm. A sued B, C & D.— Recovered. B had implied authority to bind the firm by the indemnity, in spite of C's dissent. Wilkins v. Pearce, 5 Denio, 541, N. Y. (1848). 2. Insolvency does not deprive partner o{ joint control. A et al., being in- solvent, dissolved partnership with B, and sued him for account and receiver. B's defence: Solvent, and entitled to liquidation, like a sur- viving partner. — Decree. Analogy too remote, but B might be appointed receiver if unimpeachable. Hubbard v. Guild, i Duer 662, N. Y. (1853) 3. Partner cannot revokie, by notice, co-partner's authority to collect firm claim. A & B were co-owners of a ship, and partners in the cargo. B, as ship's husband, insured ship and cargo in his own name, with C, for whom it might concern ; policy payable to himself. There was a total loss. C paid B a portion, and was then notified, by A, to pay no more to B, because he was insolvent, and A was interested in the payment. C did, however, pay the balance to B, and A sued for it, 684 PT. 2, CH. 8. POWERS. §138. — Judgment for C. Neither dissolution or insolvency incapacitates a partner from receiving firm money. Notice by co-partner ineffectual, because stranger did not know the state of partnership account. Gil- lilan V. Ins. Co., 41 N. Y. 376 (1869). 4. Partner may bind tbe firm for rent of premises necessary for tlie business B took a lease of a brewery for 10 years. He became bankrupt during the third year, and C obtained from the assignee an assignment of the term to C & D, though without D's knowledge, and C contracted for the firm to pay the rent. C & D occupied the premises, and, upon dissolution, both executed an assignment of the lease. A, as lessor, brought assumpsit against C & D for the rent. — Recovered. Renting brewery without B's authority is an incident of the business, and rati- fied by D's subsequent recognition of it. Stillman v. Harvey, 47 Conn. 26 (1879). ;. Attorneys in partnership delegate authority of all to each member. Coun- sel signed bill as A & B. Defendants objected to joint signature. — Sufficient. Rule to restrain attorneys, but control of firm reached the members, and each has authority of all. Hampton v. Coddington, I Stew. 557, N. Y. (1887). 6. A partner may re-deliver goods in return for the price, although his firm is embarrassed. A sold coal to firm, which was embarrassed, and gave notes for the price. B, a partner, gave A a bill of sale for the coal which was lying on the wharf. The next day sheriff levied on the coal, and A replevied, and obtained verdict for $2,866.43. Judge charged that A had authority to re-deliver coal in satisfaction of the debt. — Sustained. Boswell v. Green, i Dutch. 391, N. J. (1856). §138. By agreement, the partners may restrict the authority of a partner between themselves.' Outsiders are not affected by the arrangement,^ un- less notice of it is brought home to them,^ and then slight evidence will be deemed sufficient to make out a waiver of the restriction.* A partner who was for- 685 §138. POWERS. PT. 2, Ch. 8. bidden to buy except for cash, bought on credit. The seller knew of the restriction, but as the co-partner knew of the sale, his failure to dissent was deemed a waiver. His assent was not necessary.^ 1. Limitatioa of liability by agreement Inter se. Unincorporated society provided by its constitution tliat fund alone should be liable, without recourse to members, and that its officers should not contract, except upon this basis. They did, nevertheless, contract with A, without reservation. A sued the members as partners. He could not aver execution of authority in conformity to articles, but he might recover on a quantum meruit. Sullivan v. Campbell, 2 Hall 271, N. Y. (1829). 2. Contract between partners does not affect creditors. B & C gave A firm note, and dissolved partnership. B undertook, as liquidating partner, to assume outstanding debts, and gave C note for his share. A sued firm. C set up B's assumpsit of A's debt. —No defence. Gulick v. Gulick, I Harr. 186, N. J. (1837). Custom controls secret agreements. By articles A could not contract without consent of B, his co-partner. A did so contract, and, in a suit against firm, B set up want of authority. — Liable. Frost v. Hanford, I E. D. Smith, 540 N. Y. (1852). Agreement to restrict liability to amount contributed Ineffectual, A & B, with 20 others, agreed to equip a steamboat, and run her between two ports on joint account, to contribute to expenses in instalments, and share the profit and loss in proportion to their subscriptions, though they restricted the loss of each party to the amount of his subscription. B, on A's demand, promised to pay his second instalment. A, who had advanced money for expenses, sued B for his quota. B asked for non- suit. — Refused, because B's promise made him liable on account stated, though he was a partner, and A could not sue him on partnership account. Brown v. Tapscot, 6 M. & W. 119 (1840). 3. Contract of partners Inter se binds stranger witb notice of It. Agreement between B, C & D, that D should neither participate in the profit or loss, nor be liable as a partner. A, who had notice of the agreement, sued D, as a partner. — Not liable to A, because he knew of the arrange- ment. Alderson v. Pope, i Camp. 404, note (181 1). 4. Johnson v. Bernheim, supra J ng, n. 3. ;. Partner's act In excess of authority validated by co-partner's knowledge. B contributed $2,000, and limited his liability to that amount. C 686 Pt. 2, Ch. 8. Powers. § 139. managed the business, and could buy only for cash. He 'bought on credit, of A, who knew of the arrangement, but with B's knowledge. A sued B. — Liable, because he knew of the purchase. Mason v. Part- ridge, 66 N. Y. 633 (1876). 139. The partners may ratify the act of a co=partner in ex- cess of his authority, if done in the name of the firm. A ratification implies that the act ratified was done in the name of the principal. If so done the subsequent ratification binds the principal, whether he received any benefit from the transaction or not. If the con- tract was not made in the name of the principal, his subsequent adoption of it would not make him liable on the promise without a new consideration. It is often said that the act ratified must have been done on behalf of the principal. The meaning of this phrase must be that the act was done in the name of the principal.' In so far as any different signification is given to it, the phrase is incorrect. The promissor in entering into a contract in his own name, may in- tend that a third person shall have the benefit of the engagement. If the third person has previously au- thorized the contract, he is liable to the promissee as an undisclosed principal. But if there was no prece- dent authority, there is no way to make the third per- son liable to the promisee on the contract. There is no opportunity for ratificaton, because the want of 687 § 139- POWERS. PT. 2, Ch. 8. authority can never be supplied by ratification, unless the promissee contemplated the third person as the principal at the time the contract was made. The reason is that ratification is not merely an expedient for charging a principal with liability, but is a means of confirming a man as party to a contract made in his name, but without his authority. By ratification the principal becomes in fact, as well as in name, a party to the contract, and he not only incurs its bur- dens, but may compel performance by the other party. The proposition is not that a man is liable because he has ratified, but that where the act is done in his name, he has the right to ratify and take the benefit with the burden. But a man can have no right to in- trude himself as a party into a contract made with- out reference to him. For this action the testimony of the nominal promissor is inadmissible to prove his secret intention that a third person should have the benefit of the contract. Conversely, therefore, the other party to the contract can have no right against a third person upon proof of such secret intention, and its subsequent adoption by him as the intended beneficiary. Such a transaction can take effect only as a new contract. The promissee may sue an un- disclosed principal upon the equitable ground that he was the real party in interest, but must prove that the defendant, though undisclosed, was, in fact, the principal at the time the contract was made. The de- fendant might plead any set-off he had against the promissee, as the agent might have done had suit been brought against him. The undisclosed princi- Pt. 2, Ch. 8. Powers. §139. pal has no right against the other party to the con- tract, except through the agent. The liability of the undisclosed principal is equitable, not contractual, and the rule does not apply unless he was the party in interest at the time the contract was made. If the evidence shows that the defendant did not become in- terested in the contract until after it was made, he could not be held upon the equitable ground that he, in fact, caused the plaintiff to part with the considera- tion, nor upon the contract to which he was not a party. The act of a partner, in excess of his implied au- thority as agent of the firm, binds him, because he warrants his authority to do the act. But his co-part- ners are not bound, unless they adopt the act in ex- cess of authority as their own act.^ As the act is on behalf of all the partners, the adoption by each is based on the adoption of all. Unless they all make the act their own, by adopting it, the adoption by a single partner will not bind him, because he does not intend to assume the individual liability for the ultra vires act, but only to share it with his fellow-prin- cipals, on whose behalf the act was done. Unless they also adopt the act, the condition upon which he adopted it is not fulfilled, and he is not bound.* He consented, as one of the firm, to embrace the act within its province, but to enlarge the scope of the partnership requires the consent of all the partners.* it is not to be presumed that the partner who adopted the act meant to assume the entire responsibility himself, alone. He was willing to extend the part- 689 § 139- Powers. Pt. 2, Ch. 8. nership, so as to cover this act, if his co-partners agreed to it. They could not do it, unless all con- curred. The act would not be duly authorized unless every partner adopted the act, and thus brought it within the limits of the partnership business. The act was done on behalf, not of a single partner, but on behalf of all. The ratification could be only by all. Ratification by one partner would not correspond to the authority assumed and meant to be ratified. The partner who does not join in a specialty exe- cuted for the firm may, neverthless, be bound in any one of four ways: i, He may authorize his co-part- ner to execute the specialty for him, and in his name. 2, He may be present at the execution of the specialty, know of the transaction, and not dissent. 3, He may subsequently ratify the transaction. In these three cases he is bound by the covenants. In the first case the precedent authority, and in the third case the subsequent ratification, may be given by parol.^ In the second case the failure to dissent is equivalent to actual execution.® 4, He may authorize the act in question, but not its embodiment in a specialty. In this case he will be bound, not by the covenant, but by the contract, and the seal will be disregarded, as surplusage.'' The argument is frequently urged, that a partner should have the power to bind the firm by a seal, be- cause the authority does not exceed the power which he exercises by means of commercial paper.^ This reasoning betrays an ignorance of the exceptional privilege conferred upon the partner by commercial 6go Pt. 2, Ch. 8. Powers. § 139 law. As has been pointed out, the power to bind the firm by commercial paper does not spring from the relation, but is superinduced by rules which are in- consistent with partnership, and which supercede its principles. I. A firm may ratify the act of a partner which is ultra vires. The ratification operates not simply as evidence of original au- thority, but as a substitute for the want of authority.* a. Partner may ratify co-partner's unauthorized use of firm credit. B & C, attorneys, in partnership. B made his individual note to B & C, and endorsed it, in their name, for his separate debt. A discounted the note, with knowledge. When informed of the note, C promised to pay it. A sued B & C.— Recovered. A ratification, which is not evidence of original authority, but a substitute for want of authority. Commercial Bank of Buffalo v. Warren, 15 N. Y. 577 (1837). Execution of specialty by partner prevents a biti to reform it in Chancery. B & Co. settled with A & Co., giving judgment-note for balance due, signed B & Co. [L. S.] by B [L. S.]. A & Co., issued execution against B, who was insolvent and out of jurisdiction. Then brought bill to re- form the note according to both parties' intention, which charged firm of B & Co. — Dismissed, because A & Co. ratified the legal construc- tion of the note, which, otherwise. Chancery would have reformed. McNaughten v. Partridge, 11 Ohio 223 (1842). If partnership were simply agency, the agent being incom- petent to testify that he acted for an unnamed principal, the partnership depending on that fact (§ 44, n. i.) could not be proved by the agent, nor would the liability of the principal exist, unless he admitted that he was a partner. A flimsy re- liance for creditors ! 2. Partners executing specialty In firm name were bound by the deed. B, C & D were partners. B wrote a note payable to A, and D sealed it. C was not present, but the note was in the name of the firm. A sued B and D.— Recovered. WOODWARD, J. , said : " The jury found that " the two parties sued, sealed or assented to the sealing of this note, " and it is in nowise material that they used the name of a firm in " which [C}, who was not present or assenting, was a partner. By 6gi §139- Powers. Pt. 2, Ch. 8. " whatever name they call themselves, the defendants are liable accord- " ing to the tenor of the instrument they signed." Potter v. McCoy, 26 Pa. 458 (1856). 3. If the scope of the business is enlarged, the partners must add the constituent power, and all must ratify the act in excess of authority. If not, none of the partners are bound, not even the ratifying partners.* a. Roberts' Appeal, supra J24, n. 9. Ratification of partner's ultra vires contract by acts. B employed A in matters beneficial to firm of B & C, but not strictly in the line of its business. C paid A money for expenses, and had consultations with him in reference to the business. A sued firm for services. Defence by C : B had no authority to employ A on firm account. — Judgment for A. C's conduct a ratification. Holmes v. Kortlander, 64 Mich 591 s. c. 31 N. W. 532 (1887). Partners can do no act beyond the scope of the business unless all consent. The stockholders of an unincorporated society passed resolutions by un- animous vote, changing their previous articles of agreement. Subse- quently, a portion of the stockholders signed new articles, under which the original articles were again put into force. Some of those who did not sign these articles asked an injunction from the court to prevent this. — Injunction granted. All must consent to any change in the ar- ticles of the association. ' And until that is done, any change is beyond the scope of the business, which any of the stockholders, being tenants in common, can stop by an injunction. Livingston v. Lynch, 4 Johns. Ch. 573. N. Y. (1820). 4. The distinction in reference to ratification is between acts which are within the scope of the partnership business but not executed according to the method prescribed for a part- ner's act, and acts which are beyond the range of the business. If within the ambit of the business, the partner binds himself, unless he expressly stipulates for his co-partner's joinder ;* if the act transcends the firm business, he does not bind himself, unless his co-partner joins in the act. Partner's signing bond as surety binds him, unless he makes co-partner's joinder as co-Surety, a condition of his signature although both partner and obligee expected co-partner to sign the bond. B contracted to build a fac- tory for A and executed a bond of $15,000 for performance. The sure- 692 PT. 2, CH. 8. POWERS. § 139. ties were C & D. C about to execute the bond for his firm, was told that both partners must sign the bond. He then signed his name expecting D to sign when he returned to town. The obligee also expected D to call and sign. A sued B and C. — RecovSred. C expected to bind his firm by signing its name and signing his individual name binds him not less than if he had signed the firm name. He could not bind his co- partner in either mode. He did not make his co-partner's signature the condition of his own. Whitaker v. Richard, 134, Pa. 191, s. c. 19 A. 501 (1890). 5. The partners may ratify by parol a specialty executed by a co-partner.* But subsequent assent is also an acknowl- edgment of the deed which is executed in the firm name and on its behalf. a. Co-partners not present when the contract is sealed by the partner in the name of the firm, may afterwards ratify it by parol. A sued B & C on an agreement under seal executed by B in the name of the firm. C was absent when the agreement was executed, but the firm enjoyed the benefits of the contract, and C paid A's agent money due under it. A brought covenant. — Recovered. STRONG, J.: " Concede now, that " knowledge of the thing alleged to have been ratified, is essential to " ratification. Existence of that knowledge, like that of any other fact, " may be inferred from circumstances. * * * Surely there was some " evidence of knowledge of an existing contract, and of a contract with " [A], and of assent to it. * * * And if [C] knew of the contract, then " his subsequent use of the machine, and payment for that use, were " acts of ratification." Jones v. Battin, 30 Pa. 84 (1857). Specialty in firm name ratified by parol. B executed C & Sons' bond to sheriff for attachment of property, which D claimed. D recovered from sheriff, and A, his assignee, sued C & Sons and their sureties on the bond. B had no authority under seal to execute bond. Judge ex- cluded bond and assignment, and charged for defendants. — Reversed. Question for jury, which might find ratification by parol. Palmer v. Seligman, 77 Mich. 305 s. c. 43, N. W. 974 (1889). 6. The assent of a partner who is present at the execution of a specialty makes it his act. He, in effect, directs the per- formance. Presence of partner at execution of deed by co-partner for the firm malces the deed his act. B & C were partners, and B in the presence of C, who assented to, and authorized the transaction, assigned certain bonds to 693 § 139- POWERS. PT. 2, Ch. 8. D, by an instrument under seal and in the name of the firm. There was a covenant in the instrument that in case the amount of the bonds could not be recovered: "We do promise and agree to pay the amount thereof," etc. A, the executor of D, brought covenant against B & C. C appeared and pleaded non est factum. — A recovered. Fich- thorn V. Boyer, 5 Watts 159 (1836). A partners subsequent assent is equivalent to his previous authority. Partner's subsequent assent adopts seal. Plaintiff took May 7, 1883, judgment note of Glass Works signed "Glass Works. B, treasurer, C, president." Notefiled in Common Pleas Feb. 4, 1892, and declaration against oral-partners and judgment under name. Partner A petitioned to strike off judgment against him. Rule discharged, but judgment opened tolet A disprove authority or assent. Jury found for plaintiff. — Affirmed. Miller v. Glass Works, 172 Pa. 70 s. c. 33 A. 350 (1895.) 7. The requirement that the authority to attach a seal should be delegated by deed is relaxed. But unless subse- quently ratified, the act would bind the firm, not as a deed, but as a simple contract. ** a. Tbongh the deed of a partner may be ratlfed by parol after execution. It Is still necessary tbat the precedent authority, if relied on, should be under seal. A brought covenant against B, C & D, partners, trading as B & Co., upon an agreement under seal, executed by B in the name of the firm, but not in the presence of C and D. — No recovery. GIBSON, C. J.: "A thing done in the presence of another, and at his request, is his im- " mediate act. * * * One may adopt as his own, a seal affixed by " another without his authority, or even against his will, and the " delivery being his immediate act, makes the instrument his imme- " diate deed. The law is fixed and certain, that the authority of any " agent to bind by deed, can in no case or under any circumstances, be " by parol." Hart v. Withers, i P. & W. 285, Pa. (1830). Contra, Gram v. Seton, Infra, next note. 8. Authority to execute deed ratified by parol. B signed and sealed a charter party, in firm name of B & C, without any special authority from C. B & C acted under the instrument, but when A sued them, to compel payment of balance due, C's defence: Non est factum. — Judgment for A. Necessities of business demand recognition of part- ner's authority to attach seal without warrant of attorney. Previous permission or subsequent assent makes deed bind co-partner. To 694 Pt. 2, Ch. 8. Powers. § 140. establish previous permission, presence at time of execution not essen- tial. Analogy of commercial paper. Remedy, covenant. Like co- lessees, who, if one lessee signs lease, and both occupy under it, are liable in covenant. Gram v. Seton, i Hall 262, N. Y. (1828). § 140. An infant partner must disaffirm at majority, in order to escape past and future liability for his acts as an in= fant. The peculiarity of ratification by an infant, is, that his continuance of the business after attaining ma- jority is treated as an affirmance of all the transactions of the firm during his infancy.' This conclusion is suggested by the analogous and admitted principle that where an infant retains, after majority, the prop- erty, which he might return, he becomes liable for the price.^ The analogy is not perfect, because by con- tinuing in the firm he retains no physical property which might be handed over to a firm creditor. But he retains the benefit of his positon as a partner and co-proprietor of the business. The firm business is the product, among other things, of the contracts made during minority. If then the infant does not dissolve at majority, and notify the firm creditors of his retire- ment from the firm, besides rendering himself liable on the firm contracts made during his membership, he becomes liable on the subsequent contracts of the firm.^ The firm customers, have dealt with him as a 695 § 140. POWERS. Pt. 2, CH. 8. partner and have known that he was a co-proprietor in the firm, possessed of the benefits of the firm busi- ness. The obligation upon him to notify the firm cus- tomers of his retirement from the firm at majority, is analogous to his obligation to return property bought during infancy, if still in his possession. Without such notice he must be considered as retaining the proprietorship of the firm business, and therefore, as continuing to be a partner. If he adopts the firm con- tracts, his partnership embraces the period of his in- fancy when they were made. The ratification carries with it the precedent authority, and thus establishes his position as a partner from the beginning. The partnership must be dissolved by the usual notice brought home to the customers. Suppose the infant partner upon majority repudi- ated the partnership, and reclaimed his contribution of ^10,000 and the only assets of the firm were goods of that value, sold in one lot by a vendor, who claimed payment of the price. Is the infant preferred to the unpaid seller and allowed to take the assets away from him without payment ? The infant would take the merchandise from his co-partner, who could not resist his demand. The creditor could not prevent it. He sold to the infant and adult partners, but could recover only from the adult. The infant's taking the goods would not be a retention which would charge him for the price, because he would not take them under his contract, with the seller, but under his con- tract with his co-partner, which he might avoid at age. The goods became the property of the partners by 696 PT. 2, CH. 8. POWERS. § 140. virtue of the sale, and, thus converted into firm as- sets, lost their identity. The infant reclaims them as representing his contribution.* 1. Continuing partnership after majority cliarges infant partner on previous firm contracts. B in partnershiip with C, a minor, gave a note to A, for a firm's debt, witiiout C's knowledge. After coming of age, C continued the business, paving debts of the firm, collecting money on its account, giving receipts in the firm name, and joining in suits upon firm claims. Subsequently, learning of the note, he repudiated and re- fused to pay it. A sued on the note. — Judgment for A. iVliller v. Sims, 2 Hill 479, S. C. (1834). 2. Retention, after majority, of property wtiich might be returned, affirmance of infant's contract. Two infants, B & C, bought a horse and plough of A. After B's majority, and while C was still a minor, they sold the horse, and bought another with the purchase-money. They retained the plough three years after both obtained majority. A sued them for the price of the horse and plough. Defence : Infancy.— Recovered- Retaining the plough after majority an affirmance of the entire contract. Boyden v. Boyden, 9 Met. 519, Mass. (1845). 3. Infant's failure to announce dissolution at majority charges him for subse- quent contracts of the firm. B, a minor, in partnership with C. At ma- jority, B dissolved, but gave no notice to firm customers. A sold the firm goods on C's order, supposing B to be still a partner, and sued B & C for the price. B's defence: Infancy. — Judgment for A, because no notice of dissolution. Goode v. Harrison, 5 B & Aid. 147 (1821). 4. Contra. Infant partner cannot reclaim contribution if firm insolvent. On B's petition Insolvent Court issued warrant against stock of dissolved firm of A & B and against B's separate estate. A, who contributed $300 brought bill to vacate proceedings, because he was an infant. — Dis- missed. A could not reclaim property, which he had subjected to firm debts. Pelletier v. Couture, 148 Mass. 269 s. c. 19 N. E. 400 (1889). Why could not infant partner reclaim his property from in- solvent firm ? Because he cannot retain the goods without paying the price. The merchandise might be reclaimed against the adult partner, but not against the creditor. The analogy of the sale is applied to the infant buyer on his separate title. Apart from the adult partner the infant retains his individual 697 § I40. POWERS. PT. 2, CH. 8. title. If he has received merchandise, he must return it or pay the price. The creditor is claiming the property for default of payment. The infant is entitled to reclaim his contribution either before or at majority.'' There is no foundation for denying to an infant the right to disaffirm before majority.'' If the contri- bution is lost in the business, the infant has no right against his co-partners for indemnity. ° He cannot recover indemnity, because by contributing to the partnership he has not devested himself of his property right. He merely admitted his co-part- ners to co-ownership with himself. The loss of his contribution is the result of his own act. When he reclaims his contribution from the partnership fund, he devests his co-partners of their co-ownership with him in his contribution. a. Infant partner may recover bis contribution. B induced A, an infant, to contribute $i,ooo to partnership by representing business as profitable. It turned out unsuccessful. A sued B to recover contribution, less $112 received from the business, averring minority and fraudulent represen- tations. Defence : Gist of action, fraud, and suit should be ex delicto. — Judgment for A. Minority sufficient to rescind. Misrepresentation matter of aggravation, and action properly ex contractu. Sparman v. Keim, 83N. Y, 14; (1880). h. An infant's right under a partnership contract are In suspense. Tbe con- tract becomes valid, or void, by relation, upon infant's adoption or rejection. A, an infant, formed a partnership with B, contributing $100. After three months, A left, because B would not give him a salary in lieu of a share in the business. A subsequently returned, and continued in the business for nine months, when he withdrew and sued for his contribu- tion, with interest and for his services. — Judgment for B. A cannot anticipate his election to affirm or disaffirm the partnership contract, but must await his majority. Dutton v. Brown, 31 Mich. 182 (1875). c. Infant partner cannot recover contribution or compensation. A, infant, contributed $100 to partnership with B, adult, and gave his services to business for a year and seven months, when he dissolved, and sued B for his contribution and for compensation for services. — Judgment for B. Contribution was not a payment to B, but remained in joint pos- session, like other partnership property, of A & B. The services were rendered in the joint interest. B not liable without express promise. Page V. Morse, 128 Mass. 99 (1880). 698 PT. 2, CH. 8. POWERS. § 141. § 141. An infant may enter a firm, but as he is not bound by his contract of partnership, either to his partners or to third persons, his position as a partner is determined en= tirely by his property rights. The contracts of a firm are not binding upon an in- fant partner/ The firm does not acquire by virtue of the contract of partnership a joint title, so as to subject the infant's contribution or interest in the firm fund to the claims of firm creditors. The interest of the infant is always that of a tenant in common, because he is not liable to an account. He may reclaim his share of the firm property at any time on his title as co-tenant, irre- spective of the state of account between himself and his co-partners. There are, however^ anomalous cases which enforce an infant partner's contract to the extent of maintain- ing the co-partner's control over the infant's contri- bution, and subjecting his interest in the funds of the firm to its debts.^ These cases proceed upon the no- tion that the partners hold the firm property by a joint title as in ordinary cases, and that the infant having invested his co-partners with this joint title cannot afterwards dispute his own act. But an in- fant's deed is no less voidable than his promise. His act creating a joint title can have no greater validity than his assent to a joint contract. For this reason he may rescind the partnership contract and reclaim his portion of the partnership property at any time, 699 § 141. POWERS. PT. 2, CH. 8. without waiting until he has attained his majority.^ If the firm could retain his contribution until he reached majority, his act during the interval would be binding, not voidable. If at majority an infant does dissolve the partnership, and reclaim his con- tribution, this cannot be distorted into an affirmance of the relation, even though he receives from his co- partners a payment as profit for the use of his con- tribution.* His claim to recover the premium paid for admis- sion into a partnership stands upon a different footing. In such a case his position is that of a buyer. He pays the price of a valuable privilege and enters upon its enjoyment. Having thus received the considera- tion he cannot reclaim the price.^ In the contract between the parties it is not contemplated that a premium for admission to the partnership shall be paid back f but a partner always retains a qualified ownership of his contribution, and has the right to re-take it upon a distribution. The rights of an infant with respect to his contribution resemble his right to a sum of money paid as a deposit to secure his per- formance of a contract. He may disaffirm the contract and recover the sum deposited. He has never in re- ality parted with title to the deposit. 1. Infaot partoer not bound by firm contract. A, aged ig, went into part- nership witli B & C. Within a year, he sold out his share to B. D, the holder of notes given by the firm while A was a partner, recovered judgment, and levied on A's property. A obtained injunction. — Main- tained. Vansyciprincipals bad become principal and surety does not alter creditor's right to bold both as principals. C & D shipped merchandise to China, drawing for price of consignments upon A & B, who accepted the drafts, in order to enable consignors to discount them. Return shipments applied by acceptors to pay drafts and excess went to con- signors. If remittances from China did not cover drafts, others were drawn and accepted and proceeds of discount paid to acceptors to save a cash advance by them. Consignors dissolved partnership, but C liquidating partner renewed drafts and discounts. A year after dissolution C took business and notified A & B that he would continue in his name on his own account. Drafts accepted and discounted as usual. A sued D. Defence: Releasedby A's giving C time.— Recovered. Renewals not satisfaction nor accord and satisfaction, but simply ma- chinery for postponing payment. Granting that extending time of payment to principal released an original surety," although creditor thought him a principal, the notion is founded on surety's right to pay 735 §154- Change of Partners. Pt. 2, Ch. 10, off debt and be subrogated to creditor. " But when the two debtors " are both principals, there is no such right. D never could have paid " off plaintiffs and sued C in their name, for by the very act of paying " off the plaintiffs the cause of action in their name would be gone, and " the right which D would have had to sue C for contribution would " be in no way affected by any bargain which the plaintiffs had made " with C alone to give him further time. " The contention is that the two, C & D had a right without the " knowledge or consent of the plaintiffs, to create a new state of things, " and then, by giving notice, to prevent the plaintiffs from doing what " they lawfully might before— to create a right in themselves, which if " observed, must derogate from the plaintiff's right, and then to say that " it is inequitable in the plaintiffs to act in derogation of this right so "created. Surely the inequity begins earlier, and is in the defendents " derogating from the plaintiffs' right without their consent." Swire v. Redman, L. R. i Q. B. 536 (1876). " Notice, even at the time of making the contract, of special circum- " stances, out of which special damages would arise in case of breach, " is not sufficient, unless the assumption of that risk is to be taken as " having fairly entered into the contract." Judge O. W. HOLMES, The Common law. 301. a. Oriental Financial Corporations Overend L. R. 7 Ch. app. 142 (1871). § 154. The incoming partner receiving the assets under agrees ment to pay the old firm debts becomes liable to firm creditors in a personal action. A deposit of money to provide for tfie outstanding debts would enure to the benefit of the firm creditors.' The transfer of the firm assets to the incoming partner under an agreement to pay the old firm debts, is in substance a payment to him for the benefit of a stranger; that is, the old firm creditor. This makes 736 Pt. 2, Ch. io. Change of Partners. § 154. the incoming partner a trustee of the assets in the interest of the firm creditor. The trust is enforced at law by an action of assumpsit, which involves the personal liability of the trustee. The judgment ob- tained against him is for a firm debt, and its primary purpose is to subject the assets in the hands of the new firm to the claims of the old firm creditors. Its secondary effect is to fix an ultimate liability upon the separate estate of the incoming partner, thus ac- complishing, by means of the procedure and by indi- rection, a result which could not have been accom- plished directly without proof of a novation, in which the personal obligation of the incoming partner was substituted for that of the outgoing partner, with the consent of the firm creditor.^ If the continuing partner indemnifies the retiring partner against scheduled creditors, the indemnity enures to the specified creditors, and the assets are appropriated to their claims.^ 1. Retiring partners deposit as indemnity for firm debts enures to creditors. B sold out July 13, 1885, his interest in B & C, to A, for $60,000 and left $12,500 to pay his share of the outstanding debts. A, March 3, 1889, brought bill for dissolution and receiver, and September 22, amended bill, charging B & C with conspiracy to defraud him in buy- ing B's share. Sum for distribution, $36,600— Decree: Pay firm creditors and invest balance pending bill. Deposit $12,500 a fund for creditors. They could sue new firm directly for payment. Fries v. Ennis, 132 Pa. 195 s. c. 19 A. 59 (i8go). 2. The transfer of firm assets is a consideration for incoming partner's promise made to firm creditor to pay firm debts. B, after giving a note to A for merchandise, took C, D & E into partnership, the assets exceeding his debts by $50,000, and they agreed to assume the debts. The firm, in a letter, acknowledged the note as a firm debt, and, later, included it in statement of its liabilities. A sued firm.— Recovered. White v. Thielens, 106 Pa. 173 (1884). 737 154- Change of Partners. Pt 2, Ch. 10. 3. Transfer of assets sufficient consideration for assuming tlie debts, and tliis consideration enured to firm creditor. B & C sold out to stranger, D, who assumed the debts, which were scheduled and deducted from the amount of the assets as a basis of the sale. A, creditor of B & C, sued D. — Recovered. A acquired beneficial interest in the assets by the transfer, and may enforce the promise. Elton v. Perkenpine, i E. Rep'r637, Pa. (1855). 738 Pt. 2, Ch. II, The Relation. §155, CHAPTER XI. THE RELATION OF PARTNERS. §155. The relation of partnership requires that the partners should act towards each other with the utmost good faith." The history of partnership shows that the exaction of uberrima fides was based upon the closeness and intimacy of the relation (§ i . § 2). But at the present day the requirement is not founded upon blood, friend- ship or affection. The partnership does not derive its force from sentiment. The nexus of partnership is property, and the interest of the partners springs from and is bound up in the firm estate. The func- tions of the partners are summed up in the process of buying and selling property (§ 7). In title and in function the partners are identified, and this iden- tification justifies the continued application of the maxim. Each stands for and replaces the other. A partner, therefore, must act in reference to the busi- ness for the firm. If he tries to act for himself the law brings his act into consistency with the relation, and makes it enure to the firm.^ This is the ground- work of the maxim, It is upon this principle that 739 §155- The Relation. Pt.2, Ch. ii. a partner who competes with the firm by transact- ing business of the same kind on his own account/ or makes use of the firm property,'' or of his position in the firm, to secure a separate advantage is en- joined^ or compelled to share with his co-partners the profits thus acquired.® But on the other hand, a part- ner's engaging in a different business, although it might constitute a breach of the articles and furnish a ground for an injunction against the partner, or for a dissolution of the firm, would not entitle his co-part- ners to share his profits earned in the independent business.'' I. Good faith requires a disclosure of all the information possessed by a partner in regard to the business. Surviving partner's account as trustee for deceased partner's sliare must furnish exact information of the business condition, or his purchase, based on the account, wili be set aside. B & C, partners. Articles provided, that, in spite of a partner's death, the business should be continued until May i, 1876. B died, November 17, 1875. A, administrator, brought bill for account, not only up to B's death, but to May i, 1876, and averred that in reliance upon C's statement of the value of B's interest, $14,578.85, and of a subsequent depreciation of the stock, he sold out to C for $9,582.32, and that he had discovered that the state- ment was false. C pleaded a settlement of account after full investiga- tion, and a purchase at A's instance upon his terms, followed by A's recovery of judgment for the price and payment thereof by C. — Plea sustained. Harrison v. Farrington, 15 Stew. 353, N. J. (1885). At the hearing C did not prove such a complete and detailed account as would enable A to understand the exact value of B's share. C told A that the stock depreciated, though inventory increased $4,000 between B's death and May i, 1876. C did not know whether this resulted from increase of stock or of values. — Plea not proved. C, a trustee of B's share. Harrison v. Farrington, 44 N. J. Eq. 232 s. c. 10 A 105 (1887). One partner's exacting indemnity from another against misconduct of their co-partner without communicating an explained discrepancy in his account, 740 Pt,2,Ch. II. The Relation. §i55- not a breach of good faith. A, B & C, bankers in partnership. C desired to give B the superintendence of the business. A refused, unless C would indemnify him from any loss by the act or omission of B. C gave A bond of indemnity. A knew at the time of a discrepancy in the account between the bank and one of its New York correspondents, a matter which B had in charge. A did not know of any fraud, or that this irregularity might not be explained. B misappropriated firm funds, and A sued C on the bond. Defence : Breach of good faith in withholding information of the discrepancy.— Judgment for A. Requiring bond suf- ficient notice of distrust. Pardee v. Markle, iii Pa. 551, s. c. 5 A. 36 (1886). This decision hardly meets the standard of good faith required of partners in. their dealings with each other in reference to the firm business. Each partner is bound to make a clean breast of everything. He is not the judge who can determine the importance of any suspicious circumstance, but must commu- nicate it and not leave his co-partner to surmise the reason for his conduct. Bona fides does not require partner to share wife's property with co-part- ner. A paid $1,000 to join B & Co. and ultimately brought account for settlement of business. B gave C, his wife, Aug. 15, 1886, firm note for loan of $872.86, and as part of transaction executed Sept. 6, chattel mortgage as securety. C had acquired all her property jointly with her husband. A contested C's claim as inequitable on account of husband's interest in wife's property during her life and his share on her death. — Judgment for C. Heitman v. Griffith, 43 Kan. 55 s. c- 23 P. 589 (1890). Partner buying out co-partner closes boolcs and cannot recover advances from co-partner. B agreed that A's advances should be deducted before assets divided. C's separate creditor paid B $422.50 and amount used by firm. B kept imperfect books. A without first examining them bought out B for $4,000, and subsequently sued him for collections no credited, for his advances and for C's payment. — Judgment for A half C's payment $211.2; ; for B generally. A's fault to buy without examin- ing books. Advances firm assets. Pierce v. Ten Eyck, 9 Mont. 349 s. c. 23 P. 423 (i8go). 2. Partner can acquire no separate property in the business which the firm carries on. B formed a mining partnership in 1874, with C and D, which continued until 1878, he furnishing the capital and they pros- pecting and locating mining properties. C and D located three mines 741 155- The Relation. Pt. 2, Ch. h. and certain coal lands, which they reported to B, and bough him out for $400. The day of purchasing his share they consummated a sale of the coal lands, for $i,8co. During 1876 and 1877, they discovered four more mines, which they sold, after 1878, for $12,000. A demanded account for his third of the proceeds. — Decree. Entitled to all dis- coveries made during the partnership. Jennings v. Rickard, 10 Colo. 395, s. c. 15 P. 677 (1877). 3. Purchaser of article for firm with individual goods must share bis profits with co=partner. A & B were partners, dealing in lapis calaminaris. B was a shopkeeper, and paid the miners for the lapis calaminaris with goods from his shop. In his account with A, he charged him as for cash paid to the amount of the price of the goods. A claimed that B must divide with him the profit made on the sale of the goods. — Decree. Sir John Leach, v. C. : " it is a maxim of courts of equity that a " person who stands in a relation of trust and confidence to another, " shall not be permitted, in pursuit of his private advantage, to place " himself in a situation which gives him a bias against the due dis- " charge of that trust or confidence." It was B's duty to buy the lapis ' calaminaris at the lowest possible price, but when " he obtained it by " barter for his own shop goods, he had a bias against the fair dis- " charge of his duty to the plaintiff. The more goods he gave in barter " for the article purchased, the greater was the profit which he derived " from dealing in store goods, and as this profit belonged to him indi- " vidually, and as the saving by a low price of the article purchased " was to be equally divided between him and the plaintiff, he had " plainly a bias against the due discharge of his trust or confidence " towards the plaintiff." Burton v. Wookey, 6 JVlad. Ch. 367 (1822). Partner competing with firm in supplying meat to government accountable for his profits. A & B agreed to act as partners in obtaining contracts for the supply of provisions for the troops in Ireland. But B made secret arrangements with other persons to share the profits of any sim- ilar contracts they might take. A filed a bill, inter alia, for an account of the profits made by B from such secret partnerships. B admitted the facts, but denied A's right on the ground that he [B] had never agreed not to enter into such contracts. — Lord Chancellor BRADY con" eluded thus : " 1 think, therefore, there are questions arising on this " view of the case, which can hardly be satisfactorily disposed of " without further inquiry, and that 1 should send the case into the " office without prejudicing it as to the length I ought to go, or saying " that the petitioner is absolutely entitled to anything in respect of " these contracts." Lock v. Lyman, 4 Irish Ch. 188 (1854). Partner cannot carry on independent business, which in any particular is in 742 Pt. 2, Ch. II. The Relation. § i55- competition with liis firm. A, B, C & D were in partnership as sugar refiners. B was managing partner, and made all the purchases of sugar. He carried on an independent business as a sugar dealer, and was able to buy to great advantage. Accordingly, in 1851, he bought a quantity at a time when he thought it likely to- rise, and it having risen, and the firm being in want of some, he sold it to the firm at a profit, but at the fair market price of the day. A complained on the ground that they were refiners, not speculators. B took offence and cancelled the transaction, but continued to speculate, and, unknown to his partners, sold his own sugars occasionally to the firm, but always at the market prices. In this way he made great profits. A fileci a bill against him and the other co-partners to compel an account, claim- ing that the firm was entitled to the profits B had made. — B account- able. Bentley v. Craven, 18 Beavan 75 (1853). His professional duty charges the partner, who is the attor- ney, to act for the firm, and not in competition with it for his individual account. If he violates the obligation, and induces his partner to deed him property on the ground that he has ac- quired an independent title, the transaction will not stand. The fact of holding an adverse title falsifies the attorney's standing and misleads the partner. The attorney is bound to renounce his false title, disavow any claim under it, and re- tender the title to his partner before he would be in a position to ask for a conveyance. Then, having cleared himself of the ambiguous situation, he might beg of his partner the land, but the request must be made distinctly for a gift. Partner purctiasiag firm title at sheriff's sale holds for firm. Vacant land near Chicago was conveyed, in 1871, to B, as trustee, who, in 1873, declared that he held profits 1-2 for A, 1-4 for C, and 1-4 for himself. C, attorney, bought in B's title at sheriff's sale. B, et ux., by C's ad- vice, conveyed him the land. They subsequently directed tenants to pay C the rent. A brought bill to set aside C's title. — Decree. At- torney could not acquire title against his co-partner, nor did partner ra- tify attorney's title under quit-claim deed, and by giving notice to ten- ants. Roby v. Colehour, 13; 111. 300 s. c, 2; N. E. 777 (1890). Partner's secret bargain with vendee of firm land for bonus not lenforce- able. A & B had options to buy 1250 acres of coaliand at $80. A got B to join and sell options to C for$i5o an acre and received $5,oco bonus, which he concealed from B. A sued C.— Judgment for C. 74? §155. The Relation. Pt. 2, Ch. u. Secret bargain for bonus a fraud on co-partner, and void at law. Gleason V. C. M. & St. P. R. Co., 82 Iowa, 745 s. c. 43 N. W., 517 (1889). Partner inducing co'partners to- seli, tiiough for.fuli value, iand bougiit on joint account, must answer for excess obtained individually from purchaser, tbough partnership contract oral. A, B & C, orally agreed to buy land, put title in B, and share profits of sale. C induced co-partners to sell for $74,000 having secret option with D purchaser to share his profits or receive extra price for his third. C elected additional price. A & B sued C and also D. — Recovered 2-3 of C's bonus. D, ignorant of relation between A, B& C, not liable for C's fraud; contract not within Statute of frauds. Newell v. Cochran, 41 Minn. 374, s. c. 43 N.W. 84(1889). 4. Co-owner of trading ship accountable for profits made by trading on his own account. B, part owner and master of a ship, made a long voyage, touching at several ports and trading on the joint account of himself and the co-owners. He sold the ship at Sydney, and soon after made large purchases of wool, in part of which C & Co., had an interest. The wool was consigned to D, E & Co. A and others, co-owners of the ship, claimed that the wool was purchased with partnership prop- erty, on partnership account, and belonged to the partnership. B in- sisted that besides acting as master of the ship, and trading on the joint account he had right to trade, and did trade on his separate account ; and that with the profits of such separate trading he bought the wool in question. A having already obtained an injunction against D, E & Co., asked for an injunction to restrain B from receiving the wool. — Injunction granted. Gardner v. McCutcheon, 4 Beavan 534(1842). ;. Partner cannot use information acquired during the partnership to com- pete with the business good-will after the partnership. A stipulated to re- tain after the partnership, which ended January i, 1896, the good-will, of the business. B, in 189;, took from the books a list of the customers with their addresses, in order to solicit them to trade with him after the partnership had come to an end. A enjoined B. — Injunction perpetual. B could not make use of the information acquired as a partner to com- pete with A and impair the good-will. Trego v. Hunt, '95 H. L. 7. Contract secured by partner by means of his position in firm, enures to the firm. A and others were partners with B, in the coal business, under the name of B & Co. C enabled D, a clerk in the office of B & Co., to get agovernmentcontractfor coal, with B ashis surety. D assigned the contract to an association of coal companies. Between these com- panies there was a memorandum signed by B in his own name, and 744 Pt. 2, Ch. II. The Relation. §155. signed also by all the companies who were parties. At meetings of the association, each company was represented by one of its members ; B attended, but none of his partners. All the other parties treated the transaction as if the firm of B & Co. was one of the members, and. In fact, their understanding was that the original contract had been awarded to the firm. The arrangement was, that the parties should all furnish coal to the association in various proportions at twenty-five cents above the market price ; the association then delivered the coal to the government, and the profit or loss was to be shared by the parties in proportion to the coal furnished. B & Co. sold coal to the association, and B, after settlement with the government, received one-sixth of the profits made by the association. He divided with C, but none of the profits ever came into the hands of the firm. B died, and A et al. filed a bill against his executors, for an account and payment, averring that B's share was received by him for the use of the partnership. Master reported in favor of defendants; re- port confirmed ; appeal.— Decree reversed. THOMPSON, C. J.: "In " the absence * * * of special provisions, each partner is in a fiduciary " relation to his co-partners, and must devote all his energies for the " promotion of the firm exclusively, andaccountforall moneys received " by him in and through its legitimate business. These being the " duties and obligations of every member of a partnership, he who " claims exemption from them must show that it exists either in the " terms of the organization, or by the assent of all his co-partners." Bast's Appeal, 70 Pa. 301 (1872). 6. Collateral business secured by a partner through his position in the firm, enures to the firm, if germane to its purpose. A, B and others agreed to carry on the business of a common carrier between London and Fal- mouth, a separate portion of the road being allotted to each, and it having been stipulated also that no partnership should exist between them. B for himself and the other parties agreed with the Mint to carry coin from London to Falmouth and intervening towns. Afterwards he made another agreement with the Mint to carry other coin to places not on the road. A and the others claimed shares of the profits made out of the second contract. — All the parties were entitled to share in the profits. Russell v. Austwick, i Sim. Ch. 52 (1826). 7. Partner's breach of articles not to engage in other business gives firm no right to his profit, ualess he competes with firm. A Bros., composed of Ai B & C, were salt merchants and brokers for seven years. By articles, C and D covenanted not to engage In any business, except on account of A Bros. For the last two years C was dormant partner with his son D, in the manufacture of salt, and at end of seven years became 745 156. The Relation. Pt. 2, Ch. n. ostensible partner. A and B brought bill for C's profits in salt man- ufacture. — Dismissed. Breach of covenant's remedy, injunction or dissolution and damages, not profits of business, because not compet- ing with firm business. Dean v. MacDowell, 8 Ch. D. 345 (1877). §156. In dealings with third persons, the authority of each partner is limited by the equal power of his co^partner; in questions of domestic administration, the majority controls. The fundamental principle of partnership is equality between the partners, and each partner unites in him- self all the attributes of the firm. When he is acting alone, strangers are entitled to deal with him on this basis. But the partnership relation implies the una- nimity of the partners; therefore in contracts with third persons, a prohibiting partner may avoid lia- bility by notifying them of his dissent and refusal to be bound.' But where the question arises between the partners themselves, and relates to the administration of the firm business, the will of the majority controls. Third persons, whose rights are incidentally involved, must respect the determination of the majority.^ This doctrine establishes a modus Vivendi, and prevents a partner from frustrating the purpose of the firm. He is always sufficiently protected by his right to dissolve if dissatisfied with the management. If the matter in dispute involves a material alteration of the constitu- tion of the partnership, unanimity is required. 746 Pt. 2, Ch. II. The Relation. §156. 1. Partner's collusive sale passes oo title. Partner may countermand Lis co-partner's sale before delivery, B & C, partners in marble business. D, fatlier of C, while engaged in removing marble was notified by B to desist. D removed the marble, alleging a sale to him by C. A, assignee of B & C, brought trover. By plaintiff's evidence marble taken was worth $1,411. Charge : If sale collusive, void ; if not, title passed. Verdict, $3,243.30. A released all above $1,838, to hold his verdict. — Judgment affirmed. Jury found sale collusive. Dictum, B's dissent revoi^, the balance of $5,585.1; as due on account of his share of the firm assets. McCormick's Appeal, 5; Pa, 252 (1866). A partner's claim against the firm could not upon insolvency be collected for his separate creditors. The assets stand as they existed at the time the Court took jurisdiction. The at- tempt of the Court in this case to settle the claims between the firm and its members, for the purpose of marshalling the assets was only an exceptional freak. §168. The effect of allowing a single person to trade as a partner in different firms is to acknowledge different ca= pacifies in a single individual. But the tenet of the Common law was the indivisi- bility, not the divisibility, of a person. A capacity was recognized only when it was embodied in a person. 770 Pt. 2, Ch. II. The Relation. § i68. In the main business of partnership the Common law adhered to this position, which could not be as- saulted in front, and had to be turned by a flank movement. It has been shown that the firm estate served, under the tradition of the Common law, as an equivalent for the separate capacities of partners (§ 5", 103). So, in this minor point of partnership, as the law is now developing, the common member is acquiring distinct capacities by means of the different business enterprises in which he is engaged.^ This applies only to cases in which the two firms are not composed of entirely the same members. Partnership, from its origin, has been considered a relation of persons, and comprehends the total capacity of each partner. No restriction can be imposed upon his power, for he enters into the partnership as a man, and, as such, he is an individual who cannot be sev- ered into parts. As he cannot divide himself into sections, he is unable to trade in different capacities, and must enter into partnership as a unit, or not at all. The delegation of authority is absolute, and cannot be restricted by any contract between the part- ners. Hence there cannot be two partnerships com- posed of the same partners. The fact that each busi- ness is distinct, that it is carried on in a locality apart, and has no dealing with the other, does not make any difference.* Three partners might conduct a hotel in Philadelphia, and might also be cotton factors in New Orleans ; each partner could exert the powers of all, and bind the firm, in spite of any allotment of the partners to either business.. The distribution of func- 771 § i68. The Relation. Pt. 2, Ch. n. tions would be a domestic arrangement which could not affect strangers. The two trades could not be kept apart without dividing the capacity of each part- ner, and apportioning the fragments to each business. As the capacity, like its possessor, is indivisible, the different trades are consolidated into an aggregate business, and any partner may disregard the sub- divisions, which cannot tramel his powers, for they are co-extensive with the undertaking. Thus a banker's general lien, if the firm, com- posed of the same members, embraces distinct houses alike in name, extends to the securities pledged with each house ; though if the firms vary in name, the implication of separate control must be rebutted by a convention expressed, or if tacit based upon full knowledge of the relation, in order to create an ulte- rior general lien.^ A partnership within a partnership, or collateral to it, has less pretension to independence, or to recogni- tion.* Should some of the partners in the coal busi- ness construct and run a railroad, would each business be kept apart, or would both be consolidated into a single business? Let the original firm consist of three partners, then let the firm join in the new busi- ness as one party, with one of the members as the other party. How are the parts to be distributed in the new business ? Would the terms of the original partner- ship be extended to the new enterprise, and regulate both as departments of a common undertaking ? The shares might, by the original plan, be equal, but the new arrangement would give the individual member 772 Pt. 2, Ch. II. The Relation. § i68. a share of one-half as a party, and also one-third of the other half, as a partner in the firm, which entered as a single party into the new business. Nothing would prevent both plans of distribution from taking effect between the partners, but this domestic arrange- ment would not prevent a consolidation of the firm. Each partner would have power to bind his co-part- ners in either branch of the business. It has been asserted that the creditor's equity at the Civil law was a ius separationis. They might insist that the stock of each business should be kept to- gether as a whole, universttas rerum, and that the debts should be paid out of the assets.^ But the in- stances in the Digest of a contest between different classes of creditors, related to slaves and sons under paternal power who were allowed to do business on their own account. If either carried on distinct trades, the creditors of each business could insist upon a severance, and demand satisfaction out of the stock to which they gave credit.® No credit could be given to the person, and therefore, the creditors' only reliance was upon the fund. The stock was ap- plied as an aggregate to the total indebtedness.'' The reason is obvious, if Ulpian had not stated it. The price of the stock is unpaid. Until an equiva- lent for it has been rendered, no stranger, though he is also a creditor of the debtor, has any equity to ap- propriate the stock. His claim is legal, and againsc the person of his debtor, but not equitable and against the fund. The liability of the debtor to him exists, but the merchandise which he endeavors to seize was 773 § i68. THE Relation. Pt. 2, Ch. ii. not the product of his credit, but of the credit given by anotlier. The equity goes to the substance of the transaction, the liability stays in the form. 1. Equity admits a suit between firms witli a common member without a gen- eral accounting. B & C were indebted to A & B. A, surviving and liquidating partner of A & B, offered to prove in banlpartner. A enjoined B. A had contributed $6,000, and B $2,000, and B claimed subsequent advance of $3,000. On settlement, balance due A $30,000, and deficiency of assets to pay him $8,000. B promised to make up deficit, and, as he did not, firm dissolved. B assigned his interest to A, in payment, who subsequently refused to deliver up assets, on ground that statement, made by him as basis of settlement, showed A received interest on profits and on interest. — Maintained. B's interest gone, and allowance of interest on what left in business. Large v. Ditmars, 12 C. E. Gr. 283, N. J. (1876). §214. The good=will is property and an asset of the partnership. The good-will of a business is the property of the firm, since it is the result of the joint labors of the partners.* If the good-will is sold by a partner, he must account to the firm for the proceeds. The good- will means a carrying on of the firm business, in spite of a partner's retirement. The partner could not during the partnership compete with the firm in its business without a breach of good faith. His sale of the good- 895 §214. Account. Pt. 3, Ch. 7. will and his receipt of the price should estop him and not let him derogate from the sale.^ The decisions, however permit a partner to sell out the good-will to his co-partner and nevertheless compete with him by carrying on a similar business at his side.^ The only restriction imposed upon the partner is that he shall not solicit the old customers to leave the co- partner and trade with him.* If the partner ' has se- cured to himself, after dissolution, the exclusive en- joyment of the good-will, he.is charged with its value in the account.'^ This might arise in various ways ; for instance: When a partner continues the business of the firm, or where the firm carried on business upon the premises belonging to one partner, of which he has become repossessed at dissolution, he must capitalize the good-will, and account for its value. This is the condition upon which he may resume the possession of his property. The good- will, in this respect, resembles the improvements made by the firm upon the property of a partner. The Courts will not permit the good-will to be sac- rificed upon dissolution, and, in order to preserve it, will, if necessary, compel the partners to bid against each other for its exclusive enjoyment.^ I. The reputation of the firm remains the common property of the partners after dissolution. No single partner has the right to style himself successor to the late firm. This reputa- tion is not part of the good-will, and does not pass with it without special agreement." u. Partner who has purchased the good-will cannot style himself successor to the firm. Dentists who practiced as A & B, dissolved partnership, B 8g6 PT. 3, CH. 7. ACCOUNT. §214, buying the fixtures and unexpired lease of premises. He put up a sign : "successor to A & B.'' A applied to enjoin tlie appropriation of firm name. — Injunction granted. Good-will of stand passed, but reputation of firm remained property of both members. Morgan v. Schuyler, 79 N. Y. 490 (1879). 2. Partner selling good-will forfeits price If be tries to destroy the business. Use of firm name a trade-mark which passes by sale of good-will and cove- nant of seller not to use firm name. B sold out to A all the assets and the good-will of the firm B & Co., covenanting not to use the firm name. B took mortgages and notes in part payment. He started business for himself, imitated the firm names, brands, bill-heads, cards ; held himself out as successor of the firm, and enticed away firm cus- tomers and employees. A brought bill to restrain B's assignment of notes and mortgages, and to have his damages declared a payment. — Decree. Although the assets and good-will were sold in the lump, evi- dence admissible to show value of good-will and the damages resulting from B's conduct. The right to old firm name as a trade-mark passed by the assignment. Burkhardt v. Burkhardt, 42 Ohio St. 474 (1885). If the good-will is assigned to one of the partners, it in- cludes the right to use a trade-mark, even though the trade- mark be the name of the selling partner."^ The good-will, though property, needs no independent consideration for its sale, but may be included in the assets of which a partner sells his share to his co-partners, and be covered by the price of his interest.° But if no disposition is made of the good- will, both partners retain the right to use the firm trade-mark and to manufacture and sell under a firm patent."* b. If partner's name a trade-mark, it passes with the good-will. Soap manu- facturer, C, who used his name as a trade-mark for ' IWineral' and for 'Pumice' soap, formed a partnership with A, contributing, with the implements of manufacture and thie fixtures, the good-will of the busi- ness. Upon dissolution, C sold out all his interest in firm property and assets to A & B, who enjoined him from trading as successor to the firm.— Decree. C's name connected with soap indicated a formula for its manufacture, and passed with the good-will of the business. C might use his name, but not to interfere with customers of A & B. Hoxie V. Chaney, 143 Mass. 592 (1887). c. Qood-wlll passes with firm name. Articles fixed deceased partner's in- terest by annual inventory and appraisment, payable in twelve annual 897 § 214. ACCOUNT. PT. 3, CH. 7. instalments ; surviving partner miglit buy and continue firm name. Executor accepted valuation and payment. — Privilege passed good-will without additional consideration. Query: Could Code-executor agree to price of sale? Rankin v. Newman, 107 Cal. 602 s. c. 40 P. 1024 (i8g6). d. Trade-mark or patent for firm business part of good-will, wbich each part- ner may use if undisposed of on dissolution. A & B, who had manufac- tured fanning mills at X for ten years, dissolved, each taking part of the stock and implements of manufacture. A enjoined B from manu- facturing and selling the mills with an improvement which he had pat- ented during the continuance of the firm, and the name of which he called his trade-mark. — Dismissed. Improvement a part of good-will, and being undisposed of, each might manufacture and sell it, provided he did not charge the other by his transactions. Smith v. Walker, 57 Mich. 549 (1885). A geographical tract is not the subject of a trade-mark."^ e. Tract of land designated by name of former owner which described land, town, post-office, railroad and telegraph station not trade-mark. A joined B & C trading as B & Co., lessees of coal mine which they called from name of former owner of tract " Sonman" coal. B & C sold out to A who mined with D as A & Co. B & C bought another mine in said tract and sold coal as " Sonman." A & Co. brought bill. — Dis- missed. Name public. Had it been subject of trade-mark would have passed to A. Laughman's Appeal, 24 W. N. 46; Pa. (1889). 3. On the other hand, the partner who has sold out to his co-partner, including the good-will, may compete with his former co-partner in the same business, provided, he does not use the late firm name, or style himself its successor.' /. Partner selling good-will may compete with firm. B sold out to his co- partner, A, including good-will, receiving some firm claims in settle- ment, and then set up a rival establishment near by, in his own name. A sent him decoy orders, addressed to firm, and enquiring whether B succeeded them. He filled orders, enclosing his individual card, but never answered the question. — A's injunction refused. B entitled to compete if he did not use firm name, or style himself successor. He might open letters addressed to firm, as he was interested in firm claims. White V. Jones, i Rob't 321, N. Y. (1863). 4. Trego V. Hunt, I 155, n. 5. 5. Continuing partner must account to the firm for lull value of good-will. B 898 Pt. 3, Ch. 7. Account. §215. excluded A from firm, and continued the business himself. A brought bill for account of profits and good-will. — Decree, A recovered his share of the profits and one-half the value of the good-will, which was appraised at $goo. Sheppard v. Boggs, 9 Neb. 257 (1879). 6. Slemmer's Appeal, §184, n. 5. Retiring partner has no right to appropriate the good°will. A was pub- lisher and B the editor of a journal, styled ' Household Words.' B dis- solved, and announced, by advertisement, that Household Words would be discontinued, and that he had transferred himself and all the editorial staff to a new journal, the publication of which he was about to begin, entitled All the Year Round. A enjoined B from announcing the discontinuance of Household Words. — Injunction continued. B was ordered to limit the announcement to his own retirement. Right to use the name Household Words was ordered to be sold on firm ac- count, and brought £3,550. Bradbury v. Dickens, 27 Beav. 53 {1859). §215. All payments made in discharge of firm obligations are items of credit, except obligations ex delicto, in which the partner claiming the credit was an accomplice. The obligations of the partners for acts done in the course of the business may arise either from contracts or from torts. The liability incurred by a partner on the contracts of the firm is not necessarily an item of credit in the account, unless he assumes the obliga- tion to pay the entire debt.' The account implies the previous discharge of firm obligations.^ An outstand- ing debt, unless assumed by one partner, is no part of the account between them, because, while each is liable for his quota, no partner has paid his part of the debt. If, however, a partner has subjected the 899 §215. ACCOUNT. PT. 3, CH. 7. firm to contractual liability by an unauthorized act, and the obligation has been discharged with firm funds, the item is properly a debit, against the part- ner's share. The same thing is true where the firm has been made responsible for the tort of a partner, and has paid the damages. If the co-partners were accomplices in the tort, no partner will be debited with any portion of that outlay. If one partner has been compelled to pay a debt of the firm, whether arising ex contractu or ex delicto, his disbursement is an item of credit to him in the account, and is, in fact, an advance.* Compensation for services is, of course, not allowed as a credit, with- out an express agreement.* If, however, the partner who paid out of his sepa- rate estate the damages recovered against the firm in an action ex delicto was himself privy to the tort, he cannot claim credit for the disbursements, because the law will not allow a co-tortfeasor to enforce contribu- tion, either directly or indirectly. 1. Administrator of partner may recover big sbare, giving Indemnity against contingent liabilities, B, C & D, partners. B died, and A, his ad- ministrator, sued C for admitted balance in his hands. Defence: i, Contested claims outstanding against the firm ; 2, bad debts; 3, suit against city for a firm claim. — Recovered, less a sufficient sum retained to cover B's share of bad debts, upon giving a refunding receipt against claim and costs of litigation. Roberts v. Law, 4 Sandf. 642, N. Y. (1S51). 2. Retiring partner liable for bis sbare of bad debts. A, B & C bought out D, and indemnified him against all except his proportion of the bad debts. They suedhimforhis share of such debts. — Liable. Buchanan V. Cheeseborough, 2 Duer 238 N. Y. (1856). 3. Partner may claim credit in account for amounts advanced in payment of firm debts, togetber witb interest. Profits earned after dissolution by deatb Pt. 3, Ch. 7. Account. §215. on pending contracts, no part of the account when executors of deceased partner have sold out to survivor. Executors of deceased partner, B, sold out to surviving partner. A, the stoctc, fixtures, patent rights and lease of warehouse, A assuming the rent and wages of employees which ac- crued after testator's death. In a bill by A, for account, he claimed credit for amounts advanced in payment of firm debts, with interest on advances. B's executors claimed the profits made on pending contracts under the patents. — Claim of A allowed ; of B's executors rejected. Sale carried outstanding contracts. Collender v. Phelan, 79 N. Y. 366 (1879). Partner entitled to contribution against deceased partner's estate. A 1-8, B 3-8, C 1-2 interests. After A's death, 1883, judgments against A, C and B's administrator, D, aggregating $3,000. Firm assets ex- hausted in paying other debts. D refused to pay and fully settled administration account, 1891. A compelled to pay judgments claimed 3-8 contribution. — Recovered. Settlement subject to judgments. D need not join. A entitled to subrogation. Harter v. Songer, 138 Ind. 161 s. c. 37 N. E. 595 (1894). 4. A partner may recover costs of litigation for firm, but not compensation for his services in conducting litigation, unless by express agreement. D joined A, B & C, engaged in furnishing volunteers for army, and each party took 1-2. They furnished 24 soldiers, and received a city bond of $400 and $350 scrip for each man. D converted certificates into bonds, and paid over $8,000 to A, B & C. City repudiated contract, and holders sued. D, acting for firm, joined plaintiffs in test suits, and paid over $4,700 on account of money collected by him to A and B, having bought out C's share. A and B brought account. D claimed (i) com- pensation for services in litigation and (2) costs of litigation. — Without express agreement, no right to compensation for services rendered the firm, but entitled to be reimbursed costs of litigation. Coddington v. Idell, 2 Stew. 504, N.J. (1878). A surviving partner has in general, no better claim to com- pensation tiian any otlier ; but liis claim has been allowed when he has been compelled to continue the business at his own risii in order to preserve the joint property.^ a. Surviving who continues business in the joint interest of himself and de- ceased partner's estate entitled to compensation. A, surviving partner of B, continued business to protect good-will, with a view to sell the estab- lishment as a going concern. After a sale of the establishment, B's executor brought account, and claimed a share of the proceeds of the 001 i2l6. ACCOUNT. PT. 3, CH. 7. good-will. A demanded compensation for his services as manager since B's death.— Allowed. A continued business at his own risk, for the joint benefit in which the executors claimed their share. Cameron V. Francisco, 26 Ohio St. 190 (187;). By deceased partner's will compensation for continuing business is in addition to surviving partner's share of profits. B carrying on dyeing business , in Philadelphia, made Feb. 23, 1881, his will, directing his brother, C, and his son D, executors, to continue the business for A, his widow and family, until another son attained 25, at salary of $20 a week and 5 per cent, profits, unless majority disposed of business. B January 1,1882, made D partner with i-; profits. B died August 12, 1884. C renounced and D administered. Court allowed i-; profits in addition to salary. A appealed.— Affirmed. Will speaks from B's death and additions compensation to D's share. Death did not dis- solve firm, and reduce D to a salary, but continued business, which A could stop at any time. Allen's Appeal, 125 Pa. 544 (1889). If notes for partner's share of firm indebtedness are endorsed by firm after dissolution without a co-partner's knowledge, act does not release him. A et al., B et al., and C et al., went into partnership in pork-packing for the season. After dissolution, as the bank refused B et al's notes for their share of firm indebtedness without security, the firm endorsed them in C et al's absence. A et al. and B et al., who paid the notes, de- manded account and contribution from C et al. — Recovered. Although there could be no recovery on the notes against the firm, payment by plaintiffs was of original firm debt. Gardiner v. Conn, 34 Ohio St. 187 (1877). §216. The profits, or losses, of an illegal transaction, or busi= ness, forms no part of the account. No partner can demand an account, of an illegal transaction, whether it constitutes a part* or the entire business of the firm.^ The fact that the transaction is closed, the profits capitalized, and transmuted into a different kind of property, as, for example, the in- 902 PT. 3, CH. 7. ACCOUNT. § 216. vestment of money in mortgages, does not alter the situation.^ The property, in whatever form, remains the product of the illegal business. But a distinction may properly be taken, when the partners invest their illegal profits in a new and lawful enterprise which they conduct on joint account. The account which might be demanded of this new business will involve nothing but lawful acts, and will not include the di- vision of the proceeds of the illegal business, because that was accomplished when the partners settled their respective interests in the venture. Where a partner has paid his contribution with trust funds, and the cestuy que trust has reclaimed them from the firm assets, the contributing partner is deb- ited with this amount, as in the case of a withdrawal. If the innocent partner has been compelled to pay the cestuf que trust, he may claim credit for his disburse- ment. But if privy to the embezzlement, he could not claim credit for his payment, because that would be asking contribution from his co-tortfeasor. 1. No account can be demanded where the business was in part illegal. A & B were partners in business as merchants, and traded largely, though not exclusively, in contraband cotton ; all the business was done with Confederate money. After the war, A brought bill for an account. — Dismissed. The business was partly illegal, and a separation of the lawful items from the unlawful was impossible. Furthermore, as the balance, if any, must have been expressed in Confederate money at the time of dissolution, and as that currency has been blotted out, there could be no recovery. Lane v. Thomas, 37 Tex. 157 {1872). 2. Illegal partnership a defence to partner's bill for account. B, an attorney, agreed to give A, his clerk, 1-3 of profits, in lieu of salary, but A was not to be a partner. A brought bill for account. B demurred, on ground that an answer might criminate him, under 22 Ga. 2 C. 46, s. ,903 §2l6. ACCOUNT. PT. 3, CH. 7. II, by showing a partnership with C, who was not an attorney. — Sus- tained. Tench v. Roberts, 6 Madd. Ch. 145 (1819). Lotteries, though lawful ia State granting the franchise, not lawful in a different State by comity. A brought bill, as partner, for discovery and account against B, of lottery business, which had been carried on for three years under franchises granted by four States. — Dismissed. Comity would not make a nuisance lawful. Watson v. IWurray, 8 C E. Gr. 257, N. J. (1872). Partners may lawfully agree upon a minimum price in firm contracts. A & B, partners, agreed nut to furnish recruits for less than $500 per man. A brought account against B. Defence: Agreement againt public policy, because it prevented competition. — Decree. If object of partnership to prevent underbidding, as individuals, the combination would be unlawful, but A & B did not contemplate any particular public offer, nor any conspiracy to control prices. Marsh v. Russell, 66 N. Y. 288 (1876). Partners in an illegal l)usiness cannot compel an account of gains made by co-partner in competition with firm. A and B were partners for trading in cotton beyond the Union lines, and bought certain cotton in conjunc- tion with C. While the cotton was on the ocean, C became alarmed for its safety, and B secretly bought his interest, for $3,500. The cargo arrived safely, and sold for a sum which gave B a large profit on the share purchased of C. After settlement, A discovered the facts, and brought bill against B, to compel an accounting for the secret profit. — Dismissed, because the business was illegal. Dunham v. Presby, 120 Mass. 285 (1876). 3, Contra. When the profits of an Illegal business are invested in lawful property, the law protects the partner's shares. A & B, partners, bought up soldiers' claims for land warrants, contrary to Act of Congress, B managed the business, and converted the land into money and mort- gages. By concealing the real value of the assets, he bought out A's interest for a song. A brought bill for an account and division.— Decree. The business was closed and the capital converted fnto dif- ferent assets, and B could not deprive his partner of his lawful share. Brooks v. Martin, 2 Wall. 70 (1874). 904 PT. 3, CH. 7. ACCOUNT. §217. § 217. Every advantage gained by a breach of good faith is a firm asset, and every loss a charge against the wrong= doer. The breach of good faith between the partners may occur through a breach of the partnership contract, or a violation of the duty implied by the relation. The duties implied by the relation cover not only transac- tions which take place during the continuance of the firm, but also transactions which lead to the formation of the partnership, and which arise out of its dissolu- tion. But the breach of good faith must clearly ap- pear.' Any loss or damage which results to the firm, or to a partner in his separate estate, by reason of a viola- tion of the express or implied provisions of the part- nership agreement, is an item of charge against the wrong-doer, and of credit to the injured partner.^ For example, the premature dissolution of a partnership entered into for a definite term, or a failure to make a contribution as agreed.^ The fraud by which a part- ner is induced to enter a firm would charge the wrong doer for indemnity against any losses or liabilities in- curred in the business. The indemnity is an item in the account.^ A partner is chargeable in the account with any profit made by him in competition with the firm with- out his co-partner's consent. The unlawful competi- tion may occur where the partner secretly engages on his own account in the same kind of business as his 905 §217. ACCOUNT. PT. 3, GH. 7, firm. Also where he has dealings with his firm either as buyer or seller, and withholds information which would affect the price, or where he seeks to retain a profit secured by means of his position,® or where he obtains a secret profit out of purchases, or sales which he makes on behalf of the firm.'' If the partner is, without objection a common member of two firms in the same line of business, his partners in one firm cannot require him to account for his profits in the other. If the two firms deal with each other in good faith, the common member cannot be charged by his partners in one firm with any profit which accrued to the other firm out of the transaction; but if the com- mon member, in the interest of one firm, withholds from his co-partners in the other, information which affects the transaction, he is chargeable with the entire loss suffered in consequence of the suppressed infor- mation. The principles just stated apply to the liquidation of a partnership as well as to a going concern. If in the settlement of the partnership business, one partner gains an advantage over another, and gets more than his due share, by reason of a mistake, or by withholding information which would affect the division of the assets, the settlement will be opened, and the partner subcharged with the amount of his advantage.' Where a partner has, during the continuance of the firm, prepared the way for entering into a transaction in the line of the firm business, and dissolves for the 906 PT. 3, Ch. 7. ACCOUNT. §217. purpose of securing the benefit to himself, he is chargeable in the account for any profit gained.* 1 . Partner, who Is trustee for deceased partner, may buy his share at expira- tion of partnership. A & B, partners. A died, and his will directed the main business to be continued for one year, according to the articles. A made B and C trustees for his heirs, with power to sell and re-invest his property. B sold a branch house in St. Louis, and subsequently bought 1-6 of the purchaser, and continued the branch in partnership with him. At end of the year A's share in the main business was appraised, and B bought it at the valuation. A's heirs and devisees asked to set aside conveyances, and compel the trustees to carry on the business for A's estate. — No evidence that when the branch was sold B intended to buy it back, and entitled to buy A's share in the main business at the appraised value after the year. No claim for good-will. Rammelsberger v. Mitchell, 29 Ohio St. 22 (187;). Surviving partner, if be deals with the executor, may buy deceased part- ner's share. B, partner with C, and also with C & D, died October, 1859. Each firm business continued until 1866, when E, executor of B under power given by his will settled with C, and sold him B's interest. In 1880 B's heirs brought account. — Dismissed. Heirs no standing, as no collusion by executor with surviving partner. Though trustee, who could not sell out and buy in deceased partner's share, surviving partner could buy of deceased partner's executor. Delay 14 years laches and equal to Statutes of Limitations. Valentine v. Wysor> 123 Ind. 47, s. c. 23 N. E. 1076 (iSgo). 2. Breach of agreement not to engage in trade outside the partnership gives right to damages, but not to profits of independent business. A and B entered into partnership, the articles providing that neither partner should engage in trade outside the partnership. B did so engage in another firm of B & Co., and after B's death A claimed, as against B's heirs, to be entitled to an equal division in the share of B in the profits of B & Co.— Rejected, and judgment for B's heirs. Affirmed on appeal. B's violation of the partnership agreement might give rise to an action for damages by A, but as he would not have been liable for the debts of B & Co., he could not claim to be a partner therein, even unaware. Murrell v. Murrell, 33 La. 1233 (1881J, 3. Damages for dissolution. By articles, three months' notice required for dissolution. B dissolved without notice, and A sued for damages.— Recovered. Measure of damages prospective profits for ensuing three months, estimated by reference to profits of past six months, and not 907 §217. ACCOUNT. PT. 3, Ch. 7. mitigated by A's profits in another business, begun during the three months. Bagley v. Smith, 10 N. Y. 489 (1853). 4, If partner breaks contract, Chancery will date dissolution from breach, and award subsequent profits to co-partner. A had a contract with State to construct a canal. B & C agreed to furnish capital. In $3,000 instal- ments, for an equal Interest in the undertaking, and stipulated to be re- imbursed, capital and costs, out of-State payments before any division. B received a payment, which he concealed from A, and used with Cin speculation. A, discovering the fact, notified them of dissolution, and proceeded with the work alone, and made profits. A brought bill. — Decree. Dissolution dated from notice, and subsequent profits be- longed to A, who furnished labor and contract, while B & C did not furnish contribution of $3,000. Durbin v. Barber, 34 Ohio 311 {1846). ;. Fraud In forming partnership gives an assignable claim to correct a settle- ment. B sold C 1-2 of vessel at cost, and C became his partner In trading adventure. After final settlement, C discovered misrepresen- tation of cost, and assigned his claim to A, who sued to vacate settle- ment and recover cost. — Recovered. Sheldon v. Wood, 2 Bosw., 267 N. Y. (1857). 6. Possibility of renewal of lease a firm asset after dissolution. A & B dis- solved and, after bidding with each other for the lease of firm premises with right of renewal, came to no conclusion. B took a renewal in his own name. A filed bill for account. — Decree. B must account to firm for value of lease. The possibility of renewal a firm asset In liquida- tion. Johnson's Appeal, 120 Pa. 129 (1886)'. If some of the partners are lessees, and not the firm, they alone are entitled to exercise the option to renew, and may re- tain its value. Option of lessees, who are partners, to renew a lease, does not enure to firm for benefit of co-partners. B & C, In October, i860, leased a quarry, for three years from January i, 1861, with the option to renew. In December, i860, they formed a partnership with A, forworking stone, to continue for three years, and for so much longer as B & C con- tinued lessees of the quarry. A clause prevented the lessees from as- signing. B & C were bound to furnish the firm with stone qurried, at cost, They refused to exercise their option to renew, and, in December, 1863, formed a new partnership with other members, taking a different lease. A brought bill to enforce a continuance of the partnership for six years, and compel B & C to exert the option to renew for benefit of firm.— Dismissed. Lease did not belong to firm, at law or in equity. 90& Pt. 3, Ch. 7. Account. §217. No agreement for it, express or implied, but left in defendants by con- tract, which bound them to work quarries. Also a prohibition against assignment to firm. Defendants had right to refuse to renew, though for purpose of getting rid of A, as continuance at their option. Phillips V. Reeder, 3 C. E. Gr. 95, N. J. (i866). 7. The secret gains made by partner, who acted as agent for dealers with firm, must be accounted for to co-partner. A manufacturer of machinery, at Patterson, and B, merchant, at New York, went into partnership, in 1859, and continued until 1872, when they organized a corporation, the A& B Manufacturing Co., though without dissolving the partner- ship. In 1876, A brought account for secret profits made by B in trans- acting the business. He plead Statute of Limitations. — No bar. B acted for both buyer and seller, and rendered A liable for his accounts. The profits, when received, might be shared by A. Todd v. Rafferty, 3 Stew. 254, N. J. (1878), 8. Though equity denied by answer, injunction may be continued. B, to save A's separate property from sale on a mortgage, bought it. On dissolution, B's title to mortgage was recognized, but A subsequently enjoined him from selling under it, alleging fraud in settlement, and firm title to mortgage. B denied, in his answer, A's equity. — Injunc- tion maintained, though upon condition that A should pay sum into court. IVlurray v. Elston,8 C. E. Gr. 127, N. J. (1872). 9. Lease, secretly renewed by partner, a firm asset. A, B, C and D, part- ners at will, took a lease from E, for five years, in firm name, B & Co., with an understanding that E would renew. September nth, B, C and D secretly secured a renewal, and on the i8th notified A of disso- lution on January ist, A assigned to B, C and D all his interest in the partnership, except his claim for and the value of 1-4 the lease. Defence : Evidence of conversation between B, C and E, that B and C intended to dissolve at the time of renewal, and that E had renewed without reference to any prior agreement. — Judgment for A. Lease renewed before notice of dissolution a firm asset, whether lessor bound to renew or not. A's percentage, under code, allowed upon his 1-4 in- terest as the amount in controversy. In an account, successful party might recover percentage upon the whole fund. Struthers v, Pearce, 51 N. Y. 357, 365 (1873). bill, and set up account in a different partner- ship in his answer. A brought account against B, for running stage line under contract with United States. B set up A' s indebtedness to him on individual account, and out of a farm owned by A, B & C, and out of which C was also indebted to B.— No setoff. No connection between United States mail route and firm, except horses fed with pro- ducts of farm, and farm received manure in return. Brewer v. Nor- cross, 2 C. E. Gr. 219, N. J. (1865.) Account between individual partners excluded from firm account. Profits In a partnership, made in 1865, were to be shared thus : A i-io, B 4-10 and C ;-io, with provision for quarterly accounts. At end of 1872, B promised A 4-10, and 3-8 for 1873. In 1876 B brought account against A and representatives of C, who had died. A claimed in the settleme- ment his allowance by B for 1873, which was excluded as an indepen- dent transaction between A and B. Subsequently A sued B upon his promise. Defence: Claim was without consideration, involved in partnership account, and barred by former adjudication. — Recovered; right reserved by original decision, which excluded claim ; promise sup- ported by consideration of A's remaining in firm, and share for 1873 ascertained by quarterly accounts. Emery v. Wilson, 79 N. Y. 78 (1879.) §220. A decree for an account is not essential. The partners may anticipate the law and settle their own affairs without the aid or intervention of legal process.' This may be accomplished by agreement, or by submitting the settlement to arbitration.^ Either 913 §220. ACCOUNT.- "•-—"-- PT. 3, CH. 7. method is available for the partners, and a settlement will be enforced according to its terms. In a settlement made out of Court, the terms are interpreted in accordance with the rights, duties and obligations of the relation.' It is assumed that the partners meant to carry out the original purpose in the settlement, as well as in the transactions of the joint business. The construction put upon the submission to arbi- tration is in favor of a retention by the Court of its jurisdiction.^ The partners must exclude the judical control by positive stipulation, or the Courts will not refuse their aid to rectify an error of the arbitrators. The award will stand as final, unless evidence is submitted sufficient to prove fraud or mistake by the arbitrators.^ 1. Account stated binds tbe partners, though unsigned. By articles, B was to keep the books and render periodical accounts. A, in 1812, assented to, but did not sign, the accounts which B rendered, and partnership was dissolved. In 1826, A demanded account from B's executors, on the ground of fraud and misappropriation. Defence: Account stated- —Want of signature immaterial. Account conclusive, except for last year. Heartt v. Corning, 3 Paige 566, N. Y. (1832). Balance sheet strucic by a partner, competent evidence against him, though unsigned. A & B were partners. They dissolved, and A sued B for £314, his share of partnership balance. A offered in evidence balance sheet in B's handwriting, though without his signature, B claimed, as set-off, £802, a debt lost by A's negligence, as liquidating partner. — Balance sheet competent evidence, and set-off allowed, if B's negligence proved. Jessup v. Cook, i Hal. 434, N. J. (1798). 2. Discretion conferred by articles to submit not controlled, unless partner charging fraud malces out prima facie case. Articles between A, B & C provided that if business was not managed or did not result to B's sat- isfaction, he might dissolve and refer difference to arbitration. B gave partners required notice of dissolution and arbitration. A brought bill 914 PT. 3, CH. 7. ACCOUNT. §220. to prevent dissolution and reference, Ke charged B with fraud,— Dis- missed, and reference ordered. Discretion of partner charged with fraud, who wished public trial, not controlled, but only of partner charging fraud. Russel v. Russell, 14 Ch. D. 471 (1880) The partner who relies upon a settlement must prove that 't has been made. If answer sets up stipulations of settlement, defendant must prove them. A & B dissolved partnership. A brought account, on ground of no settlement. B set up, by answer, A's agreement to take assets pay debts, and assume all liability. He averred collections by A, and his liability on the settlement notes.— No sufficient evidence of the terms stated by B in his answer of the settlement. Account ordered. Dickey v. Allen, I Gr. Ch. 40, N. J. (1838). 3. Settlement opened to make partner, who competed -with firm, account for profits. A, B, C, D et al., stationers. C and D secretly bought plates and copyright in their own names, paying with firm money. They sold copies to the firm at a profit, and charged the expenditures to a printer as seller. A and B, on discovering these facts, sought to open a settlement. — Allowed. Transaction a fraud, because C and D competed with the firm. They were allowed price of plates and copy- right, which were awarded to firm. Herrick v. Ames, 8 Bosw. 115 N. Y.(i86i). Agreement that partner's debt to firm shall be talcen out of surplus is not a release, if there be no surplus. A was liquidating partner. B his co- partner, was indebted to the firm. They arranged that A should take amount of B's Indebtedness out of his share of the surplus, after pay- ing debts. There being no surplus, A sued B for his indebtedness- Defence: Discharged by the agreement —Recovered. Contract inter- preted not as novation, but as a plan of distribution on basis of part- ner's continuing liability. Sayre v. Peck, i Barb, 464, N. Y. (1847). Settlement between partners binding, unless fraud. Evidence disproved fraud in settlement, and showed full opportunity for examination by A. —Binding. Murray v. Elston, 9 C. E. Gr. 310, N. J- (1873). Af- firmed. E. & A. 9 C. E. Gr. 589. Partners cannot rescind settlement accepted by third person. A, in set- tlement with B agreed to take the assets and give up mortgage of C, contributed by B. A sued C on mortgage, and objected to evidence of agreement until completed by delivery —Judgment for C. Knowledge of settlement and acceptance by C binds A and B without delivery of possession, Benson v, Tilton, 58 N. H. 137 (1877)- .915 §220. ACCOUNT. PT. 3, CH. 7. Award, allotting one business to each partner, not enforced until cash con- sideration paid. A & B, who traded as merchants, and also as tailors, dissolved, and submitted to arbitration. Tailor store, with its debts, awarded to A ; other business, with its debtSj to B, and A ordered to pay B $470. A brought injunction to prevent sale of his property to satisfy judgments for debts arising out of B's business. B answers that A had not paid the cash. — A no equity as surety until he paid the $470. Runyon v. Brokam, i Hal. Ch. 340. N. J. (1846). A settlement is interpreted according to partnership principles. Thus on the death of a partner, an option to take his share at the last stock-valuation would apportion the account to the date of settlement and not extend it throughout the year."' u. Option to buy deceased partner's share at price fixed by last annual stock- taking, adding profits or deducting losses for current year, apportions profits to date of settlement. B, C, D & E, March 21, 1885, agreed for 30 days option to take deceased or retiring partner's share at price fixed by last annual stock-taking, adding profits or deducting losses, for current year. E died June 16, 1885, and F, his executor, July 21, 1885, settled with surviving partners, E's legatees sought to surcharge F $5,338.57 and with$i46 86 interestfor E'sshareof profits for balance of year.— Disallowed. Partnership dissolved by E's death and agreement provided for settlement not for continuation of business, Harbster's Appeal, 125 Pa. i s. c. 17 A. 204 (1889). If a partner acknowledges remissness and promises after dis- solution to pay co-partner a given sum as compensation the moral obligation would sustain the promise at least by Ga. Code § 2741.^ b. Moral obllgatloa by Georgia Code sustains express promise. After dis- solution, but before settlement, B promised to pay A $80 a month for 17 months, to make up for B's neglect of business while inebriated. A recovered judgment.— Affirmed Moral obligation sufficient considera- tion for express though executory contract by Code, J 2741. Gray v. Hamil, 82 Ga. 375 s. c. 10 S. E. 205 (1889), Settlement enforced according to its terms. A & B, partners, dealing in lumber, grain and agricultural implements, with elevator and business offices, and real estate held by B. On dissolution, B offered to sell out for $29,000, taking elevator at $5,000, and "Woodruff House" at $t,ioo, balance in proceeds of notes and accounts collected by A with- out charge. Each partner took possession of property according to 916 PT. 3, Ch. 7. ACCOUNT. §221. offer, but upon B's refusal to execute deeds, A brought specific per- formance. — Bill retained, but decree postponed until A made full exhibit of account and complied with conditions of offer. English v. Milligan, 27 Neb. 326 s. c. 43, N. W. 120 (i88g). 4. Arbitration clause does not oust court's Jurisdiction, Articles provided for settlement of disputes between partners by arbitration. A dissolved, and demanded an account and a receiver. — Entitled to a decree. Kapp V, Barthan, i E. D. Smith 622, N. Y. (1852). 5. If the finding is against the plaintiff or partner in dif- ferent operations, it is nevertheless conclusive. Award in settlement of partnership binding, unless fraud or mistake of arbitrators proved, though question of partnership in different operations involved and decided against plaintiff. A formed in 1865, with B & C partnership, which continued until 1884, when A was parayzed and D appointed his committee. D joined with B & C in referring set- tlement to three arbitrators, who investigated partnership business and other operations in which B & C were engaged, and made an award. A's administrator brought account against B & C for the outside ope- rations and for setting aside the settlement. No new evidence. — Dis- missed. No fraud or mistake shown to disturb award. Abell v. Phillips, 13 S. W. log Ky. (1890). §221. Jurisdiction of the account. A probate Court's jurisdiction over a deceased part- ner's estate does not justify an account, whiicli involves a settlement of the shares of all the partners. The competence of the Court is measured by the deceased partner's share. The co-partners are not amenable to the jurisdiction. It is only by consent of all the part- ners that the Probate Court can exercise jurisdiction over the partnership, and make it accessory to the single partner's estate.' 917 §221. ACCOUNT. PT, 3, CH. 7. The jurisdiction of the account depends on the do- micile of the partners, not the forum to which they must resort to collect their assets.^ 1 . Orphans' Court has no jurisdiction of claims arising from unsettled part- nership account. B & C, partners. B died, and C assigned to A for benefit of creditors. A offered to prove against estate in hands of B's administrator for alleged balance of unsettled firm account due C. — Dismissed, for want of jurisdiction. Ainey's Appeal, n W. N. C. 568, Pa. (1882). Where Orphans' Court has assumed jurisdiction of a partnership account with consent of all parties, its decree will stand. A, B & C, partners. B died, and A became his administrator. Without objection on the part of C, A undertook to settle the partnership affairs in his account as ad- ministrator. He stated an account, showing that B had no interest in firm. This view was contested by heirs of B, and, on final account, auditor reported against A for $23,800. A excepted, on the ground that Orphans Court had no jurisdiction of partnership matters. Thirteen years had elapsed between A's first and final accounts. — Decree for heirs of B. After so long a time A could not question a jurisdiction he had himself invoked with consent of all. Brown's Appeal, 89 Pa. 139. (1879). Orphans' Court will not try title to fund in its Iiands where claim rests on an unsettled partnership account. The administrator of B sold all the goods, stock, fixtures, &c., of B's business. A claimed one-half of fund obatined as partner of B. The fact of partnership was denied. — Decree for B's administrator. The court can not try the question of partnership. If there was a firm, its accounts must be settled in another forum. Bentley's Est, 16 Phila. 263, Pa. (1883). Orphan's Court can not enforce specific performance of a contract be- tween partners in a firm transaction. B took title to land as trustee for C, who furnished cash consideration, agreed to share the profits, and con- vey a moiety after re-imbursing C his outlay. C assigned his interest to A, and B died. A asked Orphans Court for specific performance under Act 16 June, 1836, P. L. 792, which gives jurisdiction to compel conveyance if contract by deed, and Act 24 Feb., 1834. P. L. 7;, giving mode of proceeding.— Dismissed. Orphans Court no jurisdiction if firm account involved. Walker's Appeal, 4 Pennypacker 452, Pa. (1884). 2. Attachment of partner's interest in firm credit gives court no Jurisdiction over foreign co-partners to enforce a settlement. B recovered judgment Q18 Pt. 3, Ch. 7. ACCOUNT. §221. against A in West Va., sued him upon the judgment in Ohio, and at- tached a debt due from C to A & Co. A, though a non-resident, ap. peared and demurred to the attachment. —Dissolved. The credit at- tached belonged to A & Co., and A's interest gives Ohio no jurisdic- tion to compel foreign co-partners to settle their accounts. Garnishee could not dissolve attachment on ground that he held no property of A. B entitled to prove A's property in C's hands, and then jurisdiction in rem, but court had obtained jurisdiction in personam, by A's appearance. Myers v. Smith, 29 Ohio St. 120 (1876). 919 INDEX. ABANDONMENT of business ground for dissolution... ( 54 •■177 ABATEMENT, plea in, v. CONTRACT. ABUSE. Of legal process by partner charges co-partner | '^^ 4 To make judgment against partner merge claim against co-partner 82 V. TORT. ACCEPTANCE, v. SERVICE. ACCORD AND SATISFACTION. Creditor's promise to release outgoing partnernot 95 5 ACCOMMODATION, v. COMMERCIAL PAPER. ? n. page 5 223 803 705 707 367 407 PARTIES : Partner's exclusive remedy. ACCOUNT. For contribution implied from title on sale as basis of profits Claiming all property on hand, }4 profits on sale... Can enforce contribution only through account Action for partner's contribution Firms with commoa member may bring account Retiring Partner still liable for firm debts His indemnity enures to firm creditors. Dormant partner 5g 2,C 245 2,d 246 60 I 253 211 884 4 886 30 2 "9 26 6 109 158 3 751 162 I 757 166 76; 1,2 766 151 727 1,4 728 20; 864 50 b 200 Q2I INDEX. Partner by estoppel, for or against, even if bankrupt... Managing partner must account for failure Firm creditors' preference enforced by partner's equity Executor, against, if acting in business Executor's creditors subrogated to his claim against deceased's estate Lost by neglect to enforce payment Co-tenant, for expenses, but does not intercept title.... Sub-partner against co-partners Separate creditor in equity Partner not for share of profits Except by account Not case Lender cannot maintain account Has not cestuy que trust's privilege V. ADVANCES. Cestuy que trust v. TRUST FUNDS. Process charges firm for principal and interest.. I n. page 69 296 20 308 23 309 212 6 8gi 109 508 71 316 73 322 74 329 9-10 331 73 323 3 325 13 I 67 68 288 3,4 289 105 473 53 213 157 3 749 i6i 3 756 65 274 104 8 470 41 158 NATURE : Epitome of partnership ; sums up its principles., Co-extensive with business.. Involves settlement of business. .\nd means dissolution Gives every advantage obtainable by a cross bill Basis of: j. Firm property; 2, Partner's liability ; 3, Good faith Necessary to ascertain partner's resulting equity First a right at law, then in Equity 211 883 (• 60 I 253 157 748 16; 2-5 762 166 I, a 766 169 2-3 777 L2II 883 ( 5° 200 U57 I 749 53 213 211 2 886 212 887 105 473 195 474 922 Index, Preliminary to sale in Equity ; subsequent at law. ? n. page 480 486 To get ultimate balance on all items of both firms General lien covers assets ot both firms Common member no basis for marshalling assets or forcing creditors of both funds to elect For proceeds of joint land speculation Partner compelled by co-partner's tort to advance credited with amount Deceased's estate liable though surviving indebted to firm Partner's lien for advances over co-partners and their separate creditors Advance not usurious because above legal rate Infant charged if he does not disaffirm at age Like action good for transactions isolated from gen- eral business, not involving dissolution Isolated by nature of business or contract of parties... EXCLUDED : Items on individual account 2ig&i,2 Partner's debt to firm not a firm asset 207 f 76 8 1 141 Because he may rescind at, or before, age \ '^° ^ <■ 1 -10; 5 106 - 106 4 167 161 3 210 51 3 215 208 169 i6g 2 140 162 163 Infant not source of firm credit.. Infant's contribution not firm assets, but individual property 141 141 489 767 774 876 207 goo 871 775 776 695 757 759 912 868 342 6q9 698 699 696 PROPERTY : Partners' quotas depend on nature of contribution, r 30 &2 117 which must be understood in order to state ac- | 34 130 count <■ 2-4 135 {2; I io8 29 116 34 130 Partial or total loss distributed in proportion to contri- bution 35 137 Hence partner contributing services does not share loss of contribution 34 2 134 923 INDEX. Contribution refunded before profits stiared. By original English theory firm asset.. By later English theory firm debt Notion of many states Advance or contribution fixed by subsequent mort- gage Germany charges firm with interest Enhancement firm credit Inter se individual asset Deceased's contribution limited by executor, who as- sumes personal liability Contribution of another's property Or of trust funds charges contributor only Firm liable for principal and profits Order of division : i, Firm debts; 2, Partner's ad- vances ; 3, Contribution ; 4. Share of profits- Joint estate gives firm creditor preference over sepa- rate creditor i n. page 30 I 118 31 7 124 34 I 133 31 119 32 121 31 122 32 125 -12 2 889 32 127 28 114 29 116 30 117 74 327 38 152 42 159 41 157 42 I 161 30 2 Marshalling admits preference No matter what joint estate called. Without it separate credit equal to firm credit., Extinction of firm title subject to firm debts Firm debts preferred to exemption Which might come out of co-partner's share If firm insolvent its assets pass only for full value., Separate debt no consideration Destination basis of preference Through joint estate Equity control depends on admission of firm title... Founded on partner's recognized liability at law Equity controls only if two funds Land firm assets on theory of equitable conversion or lien 924 119 100 107 419 491 197 848 I02 437 100 418 103 449 104 462 lOI 3(5) 436 105 2 478 105 9 482 106 2 487 108 498 108 4 501 IIO 535 III 537 112 544 igg 851 200 855 201 856 113 548 INDEX. I n. page Without resort to fiction 114 558 But dependent on notice \ "' ^ •- 116 574 In Pennsylvania record only notice ; but, subject to debts of title-holder, firm assets 117 584 Firm's title superior to dower 116 14 582 Contra in New Yorl< 116 i6 583 Profits cannot be asserted against firm creditors 55 223 Though exempt from liability at law, executor cannot compete with firm creditors in recovering de- ceased's share 209 873 LIABILITY : Judgment against partner extinguished non-served partner's liability 77 3 357 At Common Law < „ '* I 84 372 As well as in Equity 85 376 Restored by Legislature 82 367 Partner's death extinguished his debt \ „ '„ I. 87 380 Restored by Legislature \ ^ •■ 09 307 Firm'debt depends on extent of partner's power iiSetseq. 594 Which ends at dissolution 182 S15 Exceptfor liquidation 187 828 Partner's tort, committed iri course of business, firm debt 143 705 But not if firm only occasion for tort I44 7o8 Firm tort not imputed to special partner by negligence 146 716 Incoming partner not charged on previous contracts.. 148 719 Unless severable 148 5 72i Ornovated 150 725 723 736 But retiring partner remains indebted 150 724 Also continuing 152 73° Or he receives assets to pay debts \ ^^ 1.154 GOOD FAITH : Partner charged for loss by competing with firm 155 739 Partner's conversion of firm stock entitles co-partners J 170 778 to recover from his separate estate ^^202 2 859 925 INDEX. 5 n. page Partner withdrawing firm funds to anticipate firm, buys for firm account lo 8 57 Co-partners may ratify withdrawal 173 789 Firm creditors may reclaim assets 196 84; Preference to separate creditor set aside by creditors' bill 164 792 Partner's separate claim not enforceable, if firm debts 203 860 Until firm creditors paid 206 866 Unless no surplus for firm creditors 204 862 Fraud in forming partnership item in account 217 5 908 Not for profits of lottery or illegal business 216 2 904 Damagesfor premature dissolution measured by prof- its of last six months 217 3 907 WINDING UP: Decree for account anticipated by settlement or sub- mission 220 913 Settlement interpreted by principles of relation ; if ac- cepted by third persons cannot be rescinded 220 Ultimate balance only basis for settlement 157 But not balance in books showing each partner's share 157 Award in settlement binding 220 Partner can sue co-partner for amount due to him after settlement i6i Set-off between partners only in account 160 Account charges the partners, if stated i6i Though unsigned 220 Balance sheet evidence against partner who prepared it 220 Laches bars suit 218 Statute of Limitations adequate bar 218 Six years ordinary limitation 218 Runs from sett'ement 218 Arbitration must exclude jurisdiction of court 220 Attachment of partner's interest gives no jurisdiction over foreign partner 221 Probate court's jurisdiction over deceased's estate / 221 does not justify account '.221 Statutory domicil for firm justifies court in taking jurisdiction of local assets 96 2 410 926 3 915 748 I 749 5 917 755 752 755 I 914 I 914 5 912 910 5 912 2 910 4 917 2 918 917 I 918 Index. i n. page ACCOUNT stated, v. ACCOUNT. ACKNOWLEDGMENT, v. LIMITATIONS, Statute of V. ASSIGNMENT for ereditors. ACQUIESCENCE, v. TORT. ACTION. Both partners sue on single partner's contract 67 4 341 V. ACCOUNT. V. PROCEDURE. ACTS OF PARTNERSHIP. Joinder in trade creates not only Common Law liability, but also partnership powers 45 182 In spite of partners' intention not to be partners \ ^^ I- 69 II 302 Principals and contract implied 46 186 By Commercial Law of Europe every joint act in trade.., 44 169 Buying and selling on joint account 53 2 21; Purchase for joint commercial adventure 54 i 220 Joint charge for through ticket 62 i,/ 262 Acting as manager without disclosing principal 6g 3 297 Course of conduct as partner 69 5 298 Sharing profits and losses by co-owners J 5' 3 207 I 52 210 Stocking store for half profits 54 5 222 Trading in land partnership 82 47 But cutting wood for half price of sales not 62 i 258 V. EXECUTOR. At Common Law joint act without partnership inter se charges actors 44 169 Acting charges actor as partner { ^ '^' <■ 69 10 301 Legal effect a construction at law 45 181 V. INTENTION. Joint contract charges contractors 44 i.« 172 Joint receipt charges parties without reference to title 47 i i8g Performance of act charges parties jointly 44 3 176 Unless one agent 44 3 176 Joint buying charges buyers for price 49 1,2 197 Though not trading in partnership | ^* '^ 927 INDEX. ? n. page Buying land and selling it though at first distinct acts, f 8 46 because a single transaction < 1,2 47 Acting under common designation charges all using it •! 5"* '^^ •■ 6g n 302 All users partners 69 n 302 Common agent charges principals as partners 6912 303 Transaction, by either partner, not connected with joint estate does not bind it 102 443 Joinder of partners for a non firm object creates Common Law, but not firm, obligation 104 8 470 Joint suit includes partnership | ^ ^'' '^^ I 44 2 175 Evidence of joint interest competent 50 i,a 200 Act excludes evidence of relation inter se / "9 o 299 1 150 4 727 ADJUDICATION v. BANKRUPTCY. ADLER, Dr. Karl. Firm creditor protected at Roman Law by process ; sepa- rate execution could seize only sole and exclusive property of defendant ; if his title with another's, account required to ascertain his several interest.... 100 3,6 427 Denies any legal standing to joint fund < '°^ ^^^ •■ 7 446 But acknowledges its necessity 102 439 Unlimited joint liability includes joint execution, which f 102 440 holds stock for firm creditors 1 108 5,a 50; Actio tributoria severed trades < ' ''73 I 6 775 ADMINISTRATOR, v. EXECUTOR. ADMISSION of partners. f 2 2 34 Partner's admission of partnership i 69 29; M25 618 Testimony against alleged co-partner 69 i8,& 306 V. AGENCY. V. ACTS OF PARTNERSHIP. Declaration known by alleged partner, unless denied 69 17 304 D. CLERK. Judgment by default on note admits liability for similar note 6g 8 301 928 Index. I n. page /•I24 I, a 616 Partner's admission binds firm J 125 618 V 1 125 4 621 Not 816 8i8 after dissolution ("^^ ^ •■ 7 Partner's admission of co-partner's loan to firm 162 2 757 Partner by estoppel not bound by entries of partner in fact 150 4 727 V. AGENCY. ADVANCES. Partner cannot lend to his firm 40 155 As no enforcement during partnership 157 2,3 749 But advances and recovers at dissolution 158 3 751 Has lien on firm stock for advances to firm <^^ ^^' 1^213 891 ( 169 775 Paramount to co-partners and their separate creditors J 2c6 866 1 213 891 Advancing partner has lien in raining partnership 15 2 72 Superior to separate judgment creditor of co-partner ten- ant in common of land 114 4 563 Bind land held for firm, except in Pennsylvania 116 6 580 Carry interest without express agreement i6g 4 777 Confra 218 2 910 Not usurious because above legal rate 169 2 776 On overdrafts interest charged from dissolutioi 169 3 777 Partner advancing capital may mingle it with his own, if no loss caused 169 4 77? Partner may claim credit for advances in paying firm debts 215 3 900 Discount firm paper to repay his advances 188 2,a 833 And recover cost of litigation 215 4 901 Must bring account for his advances 158 3 75i Partner's claim against co-partner subject to firm creditors 206 &i i'66 Purchaser of partner's share may get his advances by settlement 211 3 886 Advances not set off against price of partner's share, un- less settlement • 160 3 752 Nor recoverable, unless singular transactions 162 4 758 No lien for advances to co-partner 169 i 776 Advances with guaranty of profits partnership 25 6 109 • 929 Index. ? n. page ADVERTISEMENT. Single, sufficient for parties, who had no previous deal- ingswith firm i8o 8io AGENCY. A contractual relation and revocable loi 433 Mutual agency a consequence, not antecedent of partner- ship 4; 183 Partner, if not co-principal, but an agent 2; 106 Agent with half interest in proceeds of sale of mine 3/30 118 partner •- 2 119 If agency, partnership depends on admission of principal 130 i 691 Those sharing profits, but not property, agents 27 112 Partner's agency limited by co-partner's liability in his separate estate 120 599 Partner's promise to accept draft in plaintiff's favor for agent's services binds co-partners 69 19 307 Partner liable for co-partner's tort only if through firm's f 143 705 agency 1 144 708 Dissolution revokes mutual agency 182 i 816 Husband wife's agent {'42 6 704 *-i99 4 854 Question of jury 69 i8,S ^ov V. HUSBAND. D. MARRIED WOMAN, v. WIFE. V. CLERK. Cestuy que trust's act not founded on agency 39 152 Owner of pearls undisclosed principal, seller agent 63 a 266 V. COMMON AGENT, v. WAR. AGREEMENT. By, may sue and be sued in company name, if claim in- dependent of partnership account 76 7 342 Partner's with co-partners to pay firm debts enures to firm creditors and addition to partnership liability... 109 2,c 521 Or by substitution become separate creditors 205 863 APPEARANCE. Partner cannot bind co-partners by 123 611 Nor authorize attorney to appear for co-partner 123 i,a. 612 After dissolution 182 i 618 Attorney as officer of court might appear for any one in disregard of Lord MANSFIELD'S decision 123 611 930 INDEX. I n. page Misrepresented client had to pay costs, but if attorney in- solvent let into defence 121 i,c,d 613 Limited to authority conferred upon him by his client 121 i 612 APPOINTMENT of Receiver, v. RECEIVER. APPORT. V. CONTRIBUTION. APPORTIONMENT. Of firm asets and liabilities. ,;. CONTRIBUTION. ^. DIVISION. APPROPRIATION. Of firm assets except for full vilue, if firm insolvent, f 108 498 fraud on creditors I- 109 i,b 519 ARBITRATION. Partner cannot submit firm claim to 124 61; Unless award binds only firm assets, e. g. in New York.. 124 i 616 In Pennsylvania submission binds him and firm assets, but not co-partner's estate 124 i,J 616 Partner buying out co-partner may submit 124 i,b 617 Like confessed judgment binds confessing partner and firm stock 124 1,6,2617 ARDMILLAN, Lord. Trustee using trust funds acts for beneficiaries { '^ " t- 39 I 154 AREA. ■B. SUBJECT MATTER. ARETIN. Title to contribution 30 i 130 ARNDTS,L. von Arnesburg. Civil Law indivisible contract gi 6 397 ASSETS. Partner's debt to firm not assets 207 868 If incurred by fraud, may be collected \ J -' ■' '■202 2 859 V. MARSHALLING. ASSIGNEE of a partner. V. ASSIGNMENT. Cannot reclaim payment made in fraud of firm creditors, but assignee of firm can 109 2,& 521 •931 INDEX. ? n. page ASSIGNMENT. Assignment by partner to co-partner does not cut out firm creditors 105 2 478 Of firm assets to co-partner, who agrees to pay firm debts does not convert them into separate debts 174 4 793 Agreement addition to partnersliip liability and enures to firm creditors 10; i,c 521 Assignment to co-partner, if both insolvent fraud on cred- f ig8 6 50; iters 1 109 \,d 520 Partner could not sue as assignee of co-partner 76 3 340 But needs no assignment, represents title 4 341 11. PROCEDURE. Partner may assign mortgage or judgment, because ex- ecuted contract 121 I 60; But not guarantee payment 133 3 659 Firm assignee may sue, although firm filed no certificate, and certificate prerequisite to suit 76 18 349 Partner may assign his share 175 794 But not a single piece of property or share in a particular transaction 175 4 795 Purchaser of partner's share entitled to account, not to the business 211 3,3 886 Partner's assignee becomes partner, if co-partners con- sent 68 ; 290 Entitled to future, not to past profits 175 5 796 Partner may assign his share pending receivership 176 3 799 Partner's assignment of share In projected partnership valid in equity against other creditors 176 2 797 Assignment of lease, zi. LEASE 116 ig 583 ASSIGNMENT for creditors. Not within scope of partner's competence 13; 675 All must join ('35 i 677 *• 3 679 Except when out of jurisdiction 13; 2 678 Only to avoid sale by adverse process 135 2 678 Assignment for creditors acknowledgment of firm's in- solvency 108 4 503 Makes assignee trustee for creditors, not merely substi- f 108 4 503 tute for partners 1 135 67; Once thought he could not set aside fraudulent disposition 109 9,<;,rf 534 ■V. AGREEMENT. 932 INDEX. ? n. page Preference of separate creditors void, though assignment stands in New Yorl< 174 i 752 Surviving partner no right to prefer in 193 841 Contra 193 2 841 Primafacie dissolution 136 681 Question of fact for jury.; 136 3 682 Carries not only firm, but also separate estate 136 i 681 Creditors running debtor's business to pay debts not partners 59 l,m 249 Or letting debtor under their inspection 59 « 250 ASSOCIATION. If for gain, partnership 16 6 78 ATTACHMENT. Against partner takes only his interest 105 3 479 Of firm property for separate debt trespass 105 5 480 Lies against partner^s separate property on firm contract. 107 4 498 Of partner's interest in firm credit gives court no jurisdic- tion over foreign partners to enforce settlement 221 2 918 ATTORNEY. Firm bond and warrant of, bind only signers 121 4 608 Attorney may appear as officer of court for client without his authority 123 &i 6ii Former English practice, though now superceded, obtains in New York and Pennsylvania 123 i,c,rf6i3 But never recognized in Ohio 123 i,a 612 And rejected in United States Supreme Court 123 i,& 612 V. ACCEPTING Service. ■<,. ABUSE of legal process. t>. TORT. Taking contingent fee not partner nor trustee 59 2,1 247 Attorneys' fees cross items in mutual account, set off against individual services 134 8,rf 670 AUTHORITY, v. POWERS. AUSTRIAN Code makes contribution firm property 29 i 117 BAILMENT. At Common Law property partakes of the nature of 4 37 Bailee no power to sell 4 3 39 No partnership, though bailee shares profits 67 11 283 933 Index. ? n. page BANKRUPT ACT. Of 1800, s. 6 ; joint creditor may prove against bank- f (07 2 496 rupt partner's separate estate '.202 i 857 BANKRUPTCY. Liability of separate estate enforced in 78 360 Firm creditors may prove against separate estate 201 i 857 Does not deprive judgment creditor of his priority | '"' ^ <■ I 571 Rule, a makeshift for convenience, result of Equity which /• imposed condition for resort to separate estate that 1,00 Sec separate creditors share joint estate <- As rule of court superceded by statute 209 3 874 Protects only separate estate 202 857 Assignee proves in, for diversion of firm credit against separate estate ig6 3 847 Double proof not admitted against same partners in a dif- f2io 878 ferentfirm I 6 881 But against partnernot common to both firms 210 878 Joint commission and adjudication include separate 78 2 361 ^. MARSHALLING. BARBER'S Services cross items with attorney's fees 134 8 670 BATES. Courts frustrated intention of special partners < ^^ ^43 •■ 2 147 Release by partner binds firm 121 2,a 607 BEGINNING Partnership, v. COMMENCEMENT. BENEFICIAL Associations not partnership 16 i y(, V. GAIN. BIBLE, The. 2 Moses xiii, 21 37 j 151 BIDDLE, Geo. W. Memorial address upon the judicial character of Chief Justice SHARS WOOD 103 2,ft 461 BILLS AND NOTES v. COMMERCIAL PAPER. 934 INDEX. I n. page BISSET, Andrew. Partnership land 113 5 555 BLACKBURN, Lord. Marshalling between firms with common member ; at Common Law double claims, because joint con- tracts independent of parties contracting them 2IO I 879 Banitrupt act enforced election |^'° ^77 •■aio 2 879 BLACKSTONE. Usury matter of form, excess above legal rate 66 275 BONA FIDES, v. GOOD FAITH. BONDS, County. Negotiation of, not part of country store business u8 4 596 V. POWERS. BOND AND WARRANT. Of attorney does not bind co-partners, but individual signers 121 4 608 BOOK DEBTS. Not seized by fl. fa 106 4 489 BORCHARDT, Dr. Oscar von. Die Geltendein Handelsgesetze des Erdballs, Berlin, 1866.. j ^^ ' "5 <■ 79 2,b 362 BORROWING. Limit of partner's authority fixed by usage of business--. 127 , 631 Incident to business 127 i 632 Extended by commercial paper 130 639 BRACTON. Inference of copyholds from emancipation 42 38 BRADLEY, Mr. Justice. Usurpation of franchise equal to charter 37 i 147 BRAMWELL, Lord. Limited liability 26 4 112 935 INDEX. I n. page BRAVARD-VEYRIERES. Tontine not a partnership < BUILDING OPERATION. Partnership.. BUSINESS. Partnership co-extensive with BUSINESS CONTRACT. lb 75 4 78 9 I 49 II 2 64 45 183 57 4 234 Partner's right to contract result of power to sell Joint in form, several in substance At Common Law has a substantive existence independ- ent of parties to the contract But aggregate of partners' contracts Execution shows contract to be several In Equity and banlcruptcy on mesne as well as final pro- cess Common Law had no remedy for commercial contract Civil Law recognized commercial contract Lord Mansfield severed contract into its constituent parts Joint includes several Legislature intervened to make procedure conform to contract Judgment against, or confessed by, single partner merged claim and released co-partners Or taken by, or confessed to, single partner Remedy prevented satisfaction Courts of Pennsylvania held all contracts joint and sev- eral Creditors put to election between joint and several remedy, though entitled to both Claims of co-obligees still joint But one may sue on obligation of all Or all on obligation of one V. FIRM CLAIM. 936 5 78 95 ■ 91 ■ 96 78 I 78 2 79 79 2 80 I 91 80 2 81 2 8i 3 81 4 91 91 91 10; II 76 4 43 39 360 404 395 407 360 361 361 362 364 392 364 365 366 367 367 392 394 392 484 341 INDEX. ? n. page In joint suit no judgment except against all 91 4 596 Unless by statute gi 5 397 At Common Law severed only by defendant's discharge, e. g. by infancy, banitruptcy or insolvency, out of jurisdiction or death 84 i 374 Joint and several as technical as joint contract 91 393 But one judgment could stand for joint cause of action.... 91 394 Identical fiction in Civil Law ( 9' ^'^'^ •■ 92 6 397 Procedure conforms to contract and severed judgment f 91 395 goes against each joint contractor •■ 8 398 Also in England 91 8 398 Lord Mansfield's allowance of plea in abatement demonstrated that joint contract was in substance several 92 398 C. J. IMARSHALL : Judgment against partner on firm claim, being several, does not merge it and prevent suit against partner and co-partner 93 i 401 Procedure completes severance, and requires new action / 94 402 against partner not served *■ 2 404 By former practice declaration only against parties served 94 i 402 Several no consideration for release of joint 95 5 407 Jointness only form, contracts by partners 96 407 Firm debt set off against partner's separate claim 96 i 409 Judgment in personam founded on process against part- ners, though in rem against local assets 96 2 410 Jurisdiction depends on nature of judgment 96 3 410 Plaintiff compelled to join co-contractor, unless legal cause f 96 409 for his non-joinder t^ 4 4io Discontinuance against one discharges the others 96 5 410 Unlike case where plaintiff cannot secure all co-defend- ants 96 5 411 Partners may divide debt and each pay his share 96 6 411 The Scotch adopted the French practice 96 409 Retiring partner remains liable on contract made during / ^ g partnership, and carrying out by continuing does -j ^ 726 not sever contract '■ Common Law contract charged common member in both firms 210 876 Incoming partner not liable for contracts of his predecessor 148 i 720 Unless severable 148 5 721 Tort if founded on contract charges innocent co-partner... 143 6 707 937 INDEX. ? n. page Exptuted contract discharges obligation and takes effect as act without reference to seal i88 5 834 BUYING. Without selling no partnership 71 43 Nor selling without buying 67 283 Interpreted by Common Law, a system of holdings 49 195 Trade gave partner right to buy 5 39 Limited by course of business 119 597 BUYING AND SELLING. Function of trade : defined partnership, as organ of trade \ ^ '^ *■ 7 4 45 Land originally not subject-matter of trade and partner- ship 8 I 47 But became article of traffic.: •. ■•••• 82 47 CADWALADER, J. Creditors may reclaim stock assigned by insolvent part- ners, unless for full value 108 Joint creditors' right not technical, but exclusive 108 3 Privilege follows stock 109 CAIRNS, Lord. If common member surplus joint, not firm asset { ^'° (■210 Partners with knowledge of trust funds trustees ex male- f 42 ficio I 42 CAPACITY AS PARTNER. Common Law admits no capacities in an individual 168 770 V. PROCEDURE. 'Intro. 6 4 501 3 501 5/ 525 4 880 6 882 160 2 162 Property measures partner's capacity.. 99 416 100 4J7 100 421 Partner trading in different firms must have different ca- pacities 168 770 Partner may buy, sell or pledge, v. POWERS. ,-• 'O Incident to, and co-extensive with business 137 4-6 685 Partner's authority cannot be restricted by co-partners.... I ^^^ }- <- 1,3 '684 Insolvency does not, of itself, incapacitate partner 137 2 -684 938 IT^DEX. ? n. page Partners may restrict authority between tliemseives. 138 685 But will not affect third persons 138 2 686 Partner of insolvent firm may redeliver goods in return for price 137 6 685 Liquidating limited to satisfying debts ; cannot create new debts by change of form or by commercial paper.... 188 831 CARLYLE'S Burlesque of scientific theology 77 3,a 359 CAR TRUST. A partnership 16 6 78 CASES. Pollion V. Secor explained 69 7 300 V. HOLDING OUT. Cox V. Hickman, assignment for creditors 59 4,1 249 Hart V. Kelly not a decision 64 4 270 Pearl case 63 263 Merchant prince and poor missionary 58 3 241 Hindoo Rajah's case in its origin a debt, not a loan 64 4.C 271, Bradley v. Consolidated Bank, in its origin a partnership, notaloan Intro. * i CAUSE OF ACTION, v. PROCEDURE. CELSUS. Quadriga 67 281 CERTIFICATE. New York Statute repealed by construction of courts 76 17 347 Certificate pre-requisite to suit in California, except for tort, or by assignee of claim 76 18 348. CESTUY QUE TRUST. May reclaim from firm funds contributed by trustee part- ner ■ 40 154 Or waive tort and recover on contract imputed to firm 41 157 May share profits made by firm's use of funds | ''^ ''^ Diificulty of ascertaining profits made by trust funds no answer to claim 43 166 939 7iq I 832 4 721 5 721 736 1,2 737 6 722 724 2 726 INDEX. ? n. page CHANGE OF PARTNERS. V. CONSIDERATION. Incoming partner not liable for previous acts | '^ Unless severed according to consideration, and on implied contract for part subsequently incurred 148 And on running and severable contracts 148 Receiving the assets under agreement binds incoming f 150 partner i. Must be novation 148 Retiring partner liable until released by creditors 150 On contract made before, but performed after retirement.. 150 If trust and consideration must also be release of retiring partner 149 i 723 Succeeding firm's agreement to pay debts charges assets with trust for old firm 149 Barred by Statute of Limitations 149 Promise of purchaser of firm assets to pay its debts not within Statute of Frauds 152 Accepting new partner's obligation releases retiring 150 His liability foundation of his equity 151 To compel application of firm assets for payment of its debts 151 I 729 Retiring partner's deposit to pay firm debts enures to firm creditors 154 Creditors of old and new firm share assets pro rata 151 Notice by principal debtor does not release him or convert / 153 him into a surety ^ New York lets retiring partner convert himself into 3/153 surety l By notice to creditors of his self-mutation 150 Continuing, not asignee of old firm 152 CHATTEL MORTGAGE. Partner's, of entire firm stock for firm debt valid 127 Partner may bind firm by, after dissolution 188 CHEESE FACTORY. Farmers sharing chsese in proportion to milk contributed not partners 67 282 CHOICE OF PARTNER. Right at Common Law 68 286 940 I 723 2 724 4 731 3 726 727 I 737 3 729 733 4-6 734 732 3 734 4 727 730 2 632 5 834 Index. I n. page Does not affect third persons 68 286 Assignee of part of partner's share not a partner | ^ ^^^ t- 2 289 But maintains account; prevents diversion of stock and f 68 288 is liable to creditors I 3,4 289 Becomes partner by consent of co-partners 68 5 290 None in mining partnership 15 71 Or in stock-holding partnership 69 11 303 CHRISTIAN NAIVIES. Partners must sue by 76 2 340 CIVIL LAW PROCESS, v. PROCEDURE. CLAIM. V. ABUSE, v. PROCEDURE. CLERK. Ad Interim not a partner 17 2 79 Clerk's knowledge of holding out imputed to principal.... 6917 305 His recognition of partner's agreement to set off firm, against his individual, debt, binds firm 134 10 671 Drummer, sharing profits of sales, less general expenses of business, clerk, and capacity limited to sales, not extended to receipt of price 59 2,g 246 Clerk's knowledge not notice to co-partner 170 4, a 780 CLUB for mutual benefit not a partnership 16 i 76 CODE NEPOLEON. Adopted FELICIUS' definition 16 d 76 POTHIER'S views incorporated in Intro. 13 AUSTIN'S criticism of Intro. 13 Profits shared in proportion to contribution { ' '^^ I 2 141 CODES. Austrian and German : Increment of contribution belongs to firm..... 28 I 115 Use carries title to contribution 29 i 117 V. CONTRIBUTION, v. ACCOUNT. Profits shared, unless different agreement, by heads 36 140 French : Fungible things belong to firm 31 3 123 CODIFICATION. Partnership not ripe for Intro. 12 941 Index. ■■■: I n. page .Friendly co-operation of Bar source of development ........ Intro. ig Legislature incompetent Intro. 14 Principles sterilized by Intro. 21 COKE, Lord. Land not subject matter of partnership 8 46 Gift of profits passes title to property 57 4 235 CO. UTT. Law merchant part of Common Law { ^ '^ •■ 5 41 V. COKE, Lord. COLLATERAL. Pledged for firm debt not available for non-firm debt, though joint 102 i,a 442 COLLYER, John. Release by partner 121 2,a 607 Account during partnership on isolated transactions 163 . 759 COMITY. Recognizes foreign special partner's immunity 37 a 145 Constituents of special partnership at domicil alone re- quired 37 u 151 Effect of judgment depends on law of forum | °4 373 •■ 4,5 375 COMMENCEMENT OF PARTNERSHIP. Fixed by parties intention 17 78 Carrying on business waives condition 17 3 80 Not war but interdiction of commerce prevents partner- ship between citizens of belligerent states 17 3 80 Unauthorized act not 17 4 80 Contract empowers party, though he disregards condi- tion 17 I 7g COMMERCIAL INTERCOURSE, interdiction of, dis- solves partnership 17 3 80 COMMERCIAL CONTRACT, v. BUSINESS CON- TRACTS. V. PROCEDURE. COMMERCIAL PAPER. Does not embody, but supercedes partnership principles.. | '"'^™' " ,1^130 639 942 n. page 41 2 41 4 644 648 2 651 4 652 2 651 •4,a 652 2,J 6; I INDEX. I If confined to trade co-payees would be partners.-. 6 Extended beyond trade, co-payees are not partners 6 No form indicates individual transaction | '5° •■ 131 Forms wtiicli would give notice of individual transaction, f 131 if partnership principles governed: I 1. Note made by partner to and endorsed by firm 131 2. Made by partner, and endorsed by stranger, tiien by firm , 131 3. Irregular endorsement 131 Firm note in partner's liand, thougli endorsed by stran- ger, prima facie firm assets , 130 9 647 Any partner may taice customary form to raise money and cliarge firm. Blanic firm check to co-partner no fraud 131 I 6;o Firm liable on note, though not given in firm or any . name, but on firm account 44 In individual name, if for firm \ 130 Taking individual note may be for firm claim \ '■-130 Partner may make, draw, accept or endorse 128 Common member, agent of both firms, and note payable to, and endorsed by him like first to second firm.... 131 Partner cannot give accommodation paper for his own or third person's use 129 May give accommodation paper for firm benefit { <■ 130 Good in hand of subsequent holder 131 Partner giving firm paper for his or co-partner's debt f 133 does not bind firm I Partner endorsing firm name for individiial'debt liable to co-partner ' 130 i 643 Individual partner's note not made firm's by its receipt of proceeds 132 3 655 'If partner denies that for firm debt, or by his consent, / 129 5 639 plaintiff must prove both facts *■ 188 2 833 Payment of note discounted for plaintiff charges defend- ant for second similar note 69 8 301 Managing partner's promise to renew firm note binds co- partners •■ 128 3 634 ;943 9 180 I .6,34 6 646 7 647 6 635 7 647 633 5 653 636 4 635 5 646 649 656 4 660 INDEX. ? n. page 88 2,a 833 82 4 817 88 831 88 7 835 88 2 832 88 I 832 Partner may discount firm note for his advances Dissolution ends partner's power to bind firm by com- mercial paper Generally liquidating partner no capacity to give com- mercial paper Jury decides whether liquidating partner's note individ- ual or firm transaction In Pennsylvania liquidating partner may bind co-part- ners by promissory note Also in Iowa In non-trading partnerships depends on nature and exi- f 14 2 71 gencies of business '■128 8 635 Theatre business does not justify commercial paper 14 i 70 If firm trades in individual partner's name presumed for firm 76 i8-g 349 Contra, presumed individual transaction in England and other states 76 20-1 350 COMMERCIAL PARTNERSHIP, v. TRADE. COMMISSION. On sales not evidence of partnership 63 263 V. PEARL CASE 63 263 Oil profits opposed to a share in them 60&1 252 COMMISSION IN BANKRUPTCY. Joint includes separate 78 2 361 COMMON AGENT. Makes principals partners 69 12 303 COMMON. V. TENANCY IN COMMON. COMMON MEMBER, v. BANKRUPTCY. V. MARSHALLING. COMPANY. Distinction between company and corporation 37 d 144 V. SPECIAL PARTNERSHIP. COMPENSATION. Liquidating partner no rightto 192 838 But may engage and pay clerk 192 2 840 944 INDEX. ? n. page Nor surviving partner for liquidation, unless continues business with representative's concurrence for bene- fit of deceased's estate ig2 3 840 For claim, though created by his blunder, extorted by his persistency 192 4 840 For use of trust funds contributed by trustee partner 43 166 V. TRUST FUNDS. COMPETITION, -u. GOOD FAITH. COMPROMISE. V. PROCEDURE. CONDITION. Of partnership waived by carrying on business | i7 i 79 As to third persons 69 ig 307 CONDUCT. Course of, evidence of partnership 69 3,; 297 CONFESSED JUDGMENT. /- 95 2,C 406 Binds partner confessing and firm assets ■! 126 2 627 <- 7 630 {126 62; I 627 6 629 Insolvent firm cannot confess judgment for separate debt 126 9 630 r 109 533 Contra, based on separate execution seizing firm stocl< -j 126 4 628 ( 5 629 New Yorlc, Louisiana and Washington limit execution to (126 626 firm stock •- 7 630 Does not revive debt barred by Statute of Limitations 126 8 630 V. JUDGMENT. V. BUSINESS CONTRACTS. CONFESSION of judgment, h. CONFESSED JUDGMENT. V. EXECUTION, v. ATTOR- NEY. CONNECTICUT. Made firm a party plaintiff or defendant 76 1 339 CONNECTING LINES. If joint expense, partners 62 e,/ 261 V. EVIDENCE. 945 Index. § n. page CONSENT. Parties bound by their acts, independent and in spite of their consent 4; 181 Upon identical facts New York held acts a partnership, Connecticut required consent 45 184 Agreement not to be partners overcome by legal effect 45 183 Parties may set off claim of independent firm, if co-part ners consent 134 10 671 CONSIDERATION. Remodels contract, introduced after partnership 2 33 But family relation does not rebut inference of partnership 22 34 ■0. FAMILY RELATION. Accepting new partner consideration for release of old 150 3 726 Promise of continuing, no consideration for release of re- f tiring partner, because several liabilities included j in joint t- Partner's release without consideration void 121 2 606 Incoming partner charged for prior debts only if new con- sideration 146 6 722 Consideration supercedes novation '. 147 723 Receiving firm assets consideration for incoming partner's promise 154 2 737 Enures to firm creditors 154 3 738 CONSPIRACY. Partners' agreement to bid a minimum price for recruits not 216 2 904 CONTINGENT FEE. Attorney taking, not partner or trustee 59 2,/ 247 CONTINUING PARTNER. V. CHANGE OF PARTNERS. Buying out partner has right to liquidate ic,o i 837 CONTRACT, PARTNERSHIP. Binding until rescinded although not acted upon ly i 79 Terms for jury 21 i 8g Effect for court 21 2 90 Unless terms definitely settled, contract not concluded 22 go Or enforced 22 3 91 946 Index. page 2 91 92 2 92 3 93 4 94 5 94 3 134 3 176 186 I 187 3.« 192 3.* 193 Evidence for jury must be sufficient to tiold verdict, or not submitted 21 Intention not equivalent to contract 23 Taking stoclt in projected company does not maice taicer liable as partner 23 Nor are promoters liable 23 Taking part in organizing insufficient to charge as part- ner 23 Right to become a stockholder insufficient unless exerted.. 23 Whether non-contributing partner's agreement to share profits and losses referred to contribution, or to loss beyond contribution for jury 34 For any joint act law raises implied contract 44 No express contract needed 46 Enforces duty 46 V. LAW. Partner may indemnify co-partner against loss 48 Thought inconsistent with partnership 48 Oral contract for profits in lieu of interest not within Pennsylvania Statute of 6 April, 1870 54 Contract does not neutralize act. c. PARTNERSHIP. CONTRACTOR. ■.. PROPERTY. CONTRIBUTION. Nature of, creates joint estate Intro. Equity confines joint creditors to, in the first instance Intro. Measure of partner's capacity and liability 4 Partner's acceptance of co-partner's services as contribu- / 4 tion capitalizes them *■ 54 Separate obligation 19 If a debt, would be a firm obligation 34 Merchandise bought for contribution separate debt 19 Direct purchase for firm, though for partner's contribu- f ig tion charges firm *■ i'9 Partner's deed of insolvent firm's land to repay contri- bution fraud on firm creditors 19 Insolvent firm cannot assume partner's contribution 19 Firm creditors may attack collaterally judgment for con- tribution '9 If undertaking optional no contribution until accepted 19 Partners cannot exclude co-partner failing to pay contri- bution 19 8 87 947 5.7 9 36 37 217 84 132 I 85 5 86 597 3 85 3 86 4 86 7 87 INDEX. ? n. page Incoming partner not bound for contribution made before his entrance 20 87 Non-contributing partner not liable for interest on borrow- ed capital 20 3 88 Use, not property, contributed ( ^^ '°5 •^ *• 33 128 Historically true 33 128 POTHIER misled French codifiers and Germans followed 33 i 130 Usufruct of land sufficient, unless it forms substance of f 25 106 firm transactions ' i 108 Between partners only use contributed 25 108 Inter se no joint stock 25 6 log Title to stock contributed passes to firm 2; 2 108 Retained in non-commercial partnership 25 3 109 Sale and repurchase shifts title to firm 2; 4 log Enhancement enures to firm 28 2 11; Though title holder has option to withdraw 28 3,4 116 By German and Austrian Codes 28 i 115 Loss charged to firm 114 6 566 Inter se no difference between commercial and other busi- ness 29 116 Though goods fungible 29 117 Use indicates title in firm 30 118 No implication of outright contribution 30 i 118 Though original English theory 31 &i 120 But partners may agree to so contribute 30 2 119 Theories conflict concerning contribution 31 ng Present English theory treats contribution as an advance 31 2 121 Massachusetts introduced debt theory ; each partner re- ( pays loss of contribution in proportion to his share ] of profits I '* ^ But interest on debt not allowed 31 6 124 And partner retakes his contribution without legal process 31 7 124 Partner's quota of loss, if out of jurisdiction, divided among those amenable to process 31 5 124 Georgia, Indiana and Illinois adopted debt theory 32 125 New York Court of Appeals recognized it, though Judge Hoffman showed its unsoundness 32 126 German law adds interest 32 127 Addition shared like contributions 34 1^0 Also losses { ^ 130 I 2 134 INDEX. Partial distributed like totai loss Contributing partner not subrogated to creditors paid out of his contribution Would force non-contributing partner to contribute Contribution would be by both equally and a firm, in- stead of a separate, obligation Firm would have no assets to begin with Debt theory untenable, for if partnership for fixed term partner cannot dissolve, unless his contribution is exhausted Partners' contract leaves no room for theory May agree to share losses of contribution according to their share of profits Partner's contribution of another's fungible property, cannot be reclaimed by owner Contributing trust funds, ii. TRUST FUNDS. In absence of agreement law infers that partner shares profits in proportion to his contribution Connection of contribution with profits type of partner- ship Partner cannot curtail liability of his estate upon his death Contra, may restrict to part of his estate Withdrawal of contribution a dissolution Contribution of infant depends on property, not on part- nership V. INFANT. « n. page 35 135 34 131 3 134 34 131 34 34 132 133 34 133 35 136 1-3 138 EI2 888 2 88q 38 56 Loss of contribution ground for dissolution. CONVERSION. Of land into personalty in England outright ; but only if bought with firm money and for firm use 113 Covenant originally required 113 V. LAND. Partner's conversion of firm funds charges his separate estate 17° Followed into his investments • 170 V. TORT. 949 152 228 57 22g {" 327 I 329 74 3.4 32Q 104 5 467 141 6gQ f 34 ? 135 51 203 177 802 8 804 5 555 4,1 780 3.* 779 INDEX. i n. page Conversion of stock by sheriff, v. EXECUTION. CONVEYANCING. In Pennsylvania deed to firm vests it with title •< •■ II If to partners, in them individually 115 3 571 Partner holding title may convey land 116 18 583 Judgment against partner does not bind firm land •{ "' 55? . "^ 7 550 9 3 49 5 568 LAND. COOK, Francis W. Advocate. Scotch reject English practice based on joint contract 96 7 411 CO-OPERATIVE. Meat market or store partnership 69 11 302 CO-OWNERSHIP. Holding in common implied at Common Law 67 279 Natural inference from law of tenure < ^^ '^5 •- 67 278 Of a ship. V. SHIP. Of a patent, -o. PATENT. Of a horse, v. RACE HORSE. Of a team. v. QUADRIGA. Partnership modifies each individual owner's exclusive f 97 412 right of enjoyment and disposition 1 99 416 Type of tribal or communal property 102 6 446 CO-PRINCIPALS. All partners co-principals, but all co-principals not part- ners 44 I 173 V. BUSINESS CONTRACT, v. CONSENT. CORLISS, Guy C. H. Criticized decision that partner different person from firm 116 4,a 579 CORPORATION. Parties trading as, without charter, partners | 24 94 <■ I lOI Nothing but franchise exempts from liability { ^^ 94 •■ 2 102 Belief or usurpation no substitute for charter 24 95 Contra , 24 3 102 950 Index. 2 n. page Self incorporation, if defective, no corporation I ^^ ^5 I 4 103 Delegate of the state only if exercises public function 24 98 Franchise taken by eminent domain, if business of cor- (24 gg poration private, not public \ 6 103 MORAVETZ: Ultra vires acts would charge de iure, as well as de facto corporators 24 gg Answer: i. No ultra vires contracts ( ^'* ^ l 8 103 2. Ultra vires tort not exertion of power but incident to business 24 gg Partnership qualification for incorporation 23 3 93 Legislation accepted in renunciation of corporate exemp- tion 24 II 104 COTTENHAM, L. C. Solicitor charged firm by appropriating money deposited for investment 144 3 711 CO-TORT FEASORS. Liable jointly, separately and successively 144 3 711 COURT AND JURY, province of. Terms of contract, if oral, for jury 21 i 8q Its effects for court 21 89 Partnership, if a species of principal and agent, question of fact for jury ; if property relation, an inference of law from facts found by jury 54 3,4 221 CREDITORS. ■u. IWARSHALLING. v. EXECUTION, v. SEPA- RATE CREDITORS. V. ACCOUNT. CROPPER AND CROPS, v. LANDLORD AND TENANT. CUSTOM. Controls partners' secret agreement 138 2 686 DAMAGES. For breach of contract not to transact other business, but not for profits of Independent business 217 2 goy For premature dissolution 217 3 go7 ■B. GOOD FAITH. 951 INDEX. i n. DEATH. Of a partner dissolves partnership without notice -J '^^ 1-179 I Of common member dissolves both firms 177 i Of partner released his estate at law 86 V. DECEASEO PARTNER'S ESTATE. Does not revoke authority of firm agent 10; 2 Equality of distribution prevents set off after 134 16 Devolves obligation on co-partner 87 Pending suit against firm deprives plaintiff of right to proceed against his estate 87 Pennsylvania gives direct remedy against deceased's estate 88 England 88 8 Does not reconvert firm land until settlement 113 8 Rescinds contract of employment, though for definite f 72 i term 1 183 5 DEBT. Of a partner to firm not its asset 207 V. MARSHALL INC. page 801 808 803 377 478 673 380 380 381 386 557 318 822 868 DECEASED PARTNER'S ESTATE. Liable for firm debts. Procedure does not prevent joint action. Though so decided Formerly liable only if execution against surviving part- ner unsatisfied And discharged if survivor confessed judgment No longer exempt in Pennsylvania And death no longer bar to judgment R. L, Miss., N. J., Tenn., Vt., Me., Minn., Wis., Kans. and Md. by statute England by construction Statute of Pennsylvania severs judgment and makes it bind executors 74 I 320 88 2,3 382 88 8 386 109 7,a 526 86 6 379 88 5 3S4 86 I 378 87 3 381 86 5 379 87 2 381 87 I 380 88 3 382 88 6 384 88 7 385 88 8 386 89 387 952 INDEX. 5 n. page Firm debt also several debt of deceased partner and may be set off against firm claim g6 i 409 Balance of account on insolvency not debt to co-partner. Contra log 7, J 526 Equity, limited to applying assets to firm debts 109 6 525 Liable for compensation to partner continuing business at his rislt for joint benefit 215 4,a goi When held liable only in equity, withdrawal not allowed... 209 873 DECREASE of contribution, v. CONTRIBUTION. DECLARATION. Against parties served and judgment must conform 94 i 402 Of partnership, v. HOLDING OUT. DEED. Partner's, conveys his moiety subject to firm debts 114 8,a 567 ■V. CONVEYANCING. DE FACTO CORPORATION. V. CORPORATION. Favored by courts in competition with special partnership 37 142 Unless charter, members liable as partners 24 i loi Account necessary for settlement of 158&3 750 DE GRAY, Mr. Justice. Profits fund for creditors 55 i 225 Contra , 55 224 DELECTUS PERSONS, v. CHOICE OF PARTNER. DERNBURG. Only managing partner sued for firm debt can set off firm claim 104 4 665 After dissolution. »,. VON HAHN 104 8,a 667 DESCENT. Conversion changed course of, in England 113 550 DESTINATION, Doctrine of. Outgrowth of partners' joint tenancy no 535 Prevents any disposition of firm stock on insolvency un- less for full value no 535 Enforced by retiring partner against infant 151 i 729 Right of firm creditors cannot be explained by 99 417 953 INDEX. i n. page V. MARSHALLING, v. EQUITY. DIGEST of Justinian. 14,4, 16 Ill 4 542 14,4,516 168 ; 775 17, 2, 20 68 I 289 17,2, 30 5; 2 225 17, 2, 44 63 a 266 17,2, 52 10 8 58 17,2, 55 '. 41 3 159 17,2, 58 67 8 282 50,17,47 68 I 289 DISAGREEMENT Unless resulting in exclusion no ground for dissolution.... 177 802 DISPOSITOIN. c. SALE. DISSOLUTION. Occurs, as a matter of course, at the death of a partner... -J '^^ >■ 177 I 803 Upon marriage of a single woman 177 801 Upon sale of partner's interest \ '^^ ^ t- 2 803 801 II 805 801 3 803 Grounds for which court decrees dissolution 177 801 802 804 Partner's misconduct 177 9 805 Mismanagement 159 i 752 Insolvency 177 10 805 Lunacy 177 11 805 Finding insufficient without partner's election 177 11 806 Partners abandonment of business \ '^^ °^ •■ 12 807 Partner recovers damages for premature dissolution 178 2 807 Positive notice a dissolution \ '^^ ° •■ 4 809 Notice of, must be given 179 2 808 Except in case of death i79 808 954' Lunacy of a partner suspends partnership I '^^ Asdoes war < '^^ Grounds for which court decrees dissolution 177 Failure of undertaking < '^^ INDEX, Or partner remains liable 179 No particular form required 179 Notice varies witii tlie class to be notified 180 Single advertisement sufficient for parties, who had no previous dealings with firm 180 Partner not named in firm designation need give no notice 180 Notice must be brought home to old customers 181 Best course is by registered letter 181 Purchaser of firm paper not a customer < ' But habit of discounting firm paper maizes him a customer | Nominal partner must give actual notice of his retirement 181 Dissolution revokes partner's authority 182 {182 Or by admission | Or by commercial paper, except in Pennsylvania for liqui- dation 182 r 182 Or credit correspondent with checks on firm •< Cannot acknowledge or revive debt 182 Joint title must be established before division < ^^ No division until firm creditors satisfied < ' Joint estate continues until firm claims satisfied. 1 183 And is liable for firm liabilities { '°^ •- 183 Unless executor enforces settlement and division, part- nership continues 183 Dissolution prospective and does not affect past liabilities | '5° Withdrawing contribution would constitute dissolution... 104 DISTRIBUTION. Depends upon theory of contribution 212 Priority given to advances and improvements 213 Equity intervenes only, if two funds 197 V. MARSHALLING, v. ACCOUNT. 955 n. page 2 808 3 809 809 4 811 I 810 811 812 812 3 813 812 4 813 5 814 I 816 815 I 816 815 3 816 4 817 815 6 8i8 7-8 818 819 I 821 820 4 822 820 3 821 2 478 6 822 8 822 725 I 726 5 467 888 891 848 INDEX. ? n. page DIVERSION OF STOCK. Partner's separate debt no consideration if firm insolvent. lot) g,b 533 Firm creditors may reclaim assets ig6 845 Orfirmasignee log 2,6 521 Assignee in bankruptcy proves against separate estate... ig6 3 847 But not if diversion prior to insolvency 196 3,3 847 Retiring partner's equity prevents diversion | '5' ''^^ I I 729 Partner may recover stock diverted 213 2 894 Or defend against endorsee with knowledge of Insolv- f 173 789 789 3 791 ency on note for past debt I 4 791 Partners may ratify, if solvent | '^^ DIVISION. Partners' division of debts enforced by law 96 6 411 And of claims with debtors consent 182 5 818 Unless firm title established, no division 183 819 DOCTRINE. Ex parte Waring 109 8,c 529 DOE, C. J. Ignoring property held partnership agency; if mutual / 44 i 173 agents, co-principals jointly liable I 58 2 240 Disregarding profits as indication to partnership 54 4 221 Made partnership question of fact 54 3 221 Left no external clue to partnership 56 i 229 Confused primary and secondary meaning of sharing profits in case of merchant prince and poor mis- sionary 58 3 241 DORMANT PARTNER. Liable to creditors 54 i 219 Party in interest 76 343 f 3 34 Type of Common Law partner < 57 231 '■104 5 467 Commercial type of undisclosed principal 26 no Attack on undisclosed principal to change Common Law f 26 no type (• I III As not party to contract need not be included in suit against ostensible partner 76 13 345 956 INDEX. n. page a 204 57 231 None in Civil Law \ ^' ^- 57 Partner's asignee as co-owner like 68 4 ago His joinder necessary to make set-off available 76 12 345 Plaintiff taking judgment against ostensible elects to re- / 76 344 lease dormant partner '- 77 3 357 New York code, by making interest test, compels joinder of dormant partner 76&14 344 r 77 3 357 Plaintiff's not knowing of dormant partner no excuse \ 84 • 372 y 85 &2 376 V. SPECIAL PARTNERSHIP, v. PROCEDURE. DOUBLE PROOF. At law common member charged twice 210 i 879 Equity compelled creditors to elect 210 2 879 Bankruptcy Act restored double proof 210 878 Unless same partners in both firtas 210 6 882 DOWER. Out of husband's share in firm land 113 g 557 Not out of firm land 116 13 581 Subject to firm debts n6 14 582 Cut out by creditors' title 116 15 582 In New York as a legal and equitable right prevails over equity of firm creditors 116 16 583 DUAL. C Pfef XV Position of a partner ■! l 103 454 DURANTON. Contribution measure of profits \^ ^ l 3 t4i DURATION of partnership. Partnership does not outlast partner's death 71 3i6 Clerk's bond ceases with partner's death, though he directed executor to continue business 71 i 3^8 V. DISSOLUTION. DURESS. Partner's payment of separate debt to release his own estate 130 i ^3 957 Index. I n. page DUVERGIER. In pearl case seller makes no contribution 63 264 EDDIS, Artliur Clement. Doctrine of ex parte Waring log 8,c 529 ELDON, Lord. Surviving partner takes legal but not beneficial title 99 2 418 Equity of deceased partner entities creditors to old firm stock log 5^^ 525 ELECTION. Plaintiff's non-joinder of partner as co-defendent, oper- ates as an unconscious release 77 3 358 Equity put firms with common member to election 210 877 V. PROCEDURE. V. MARSHALLING. Cestuy que trust's election to follow funds or take princi- pal and interest 42 3 164 V. TRUST FUNDS. Partner's obligation no ground for election ig8 850 ELIZABETH, Statutes of. Protect joint creditors | '^'^^^- ^'"' ^'^ <■ 108 498 ELLENBOROUGH, Lord. Power to buy corresponds to power to sell iig i 598 ENGLISH. Theory of contribution : firm property out and out 31 iig Subsequently : advance, i. e., firm debt 31 2 121 V. CONTRIBUTION. If inferred from profits, share fixed by evidence 36 5 141 Process, based on Civil Law, vitiated by formula of joint f 77 352 contract I 2 356 EQUITABLE LIEN. Adapts itself to fluctuating property ; but creditors' right does not depend on equity, existed at Law 105 474 In New York widow's legal and equitable right super- cedes equity of firm creditors 116 16 583 EQUITY. Recognizes the joint tenancy of partners 103 453 958 Index. ? n. page Right to have firm stock applied to payment of firm debts in exoneration of separate estate 109 510 Principleof adjustment of interest between partners 109 511 Judge Gibson founded partner's equity on property 103 450 Judge ShaRSWOOD on partner's liability and in relief f 103 2 457 of his separate estate •■ 2,a 461 Founded on partner's liability 109 4 522 At Common Law Pref. xiv Retiring partner's founded on his continuing liability 151 i 728 In his separate estate '. 109 512 Not a property right 109 7 526 Does not pass by a sale of his share icg 5 522 Deceased partner's equity enures to firm creditors 109 6 52; Waiver inconsistent with partnership as to third persons.. 109 514 Disguise for abstracting property which belongs to credit- ors 104 10 471 Equity a personal privilege 104 9 470 Designed for protection of separate estate, founds firm creditors' right 109 508 An independent and paramount 109 509 Enforced as constituents of partnership { "' „ 1 199 3 853 Distinguishes trade from omnium bonorum partnership 109 510 Destination ultimate cause of creditors' equity, but joint estate the means 199 852 Equity does not destroy but controls the legal right 200 85; Intervenes only when two funds i97 848 Only when there is a joint fund 201 856 Restriction protects nothing but separate estate 202 857 Statutory remedy does not take away suits in equity be- tween firms with common member 166 I, a 766 Equities of each partner must be ascertained 167 767 In Equity all contracts joint and several 85 376 ... WALWORTH, Ch. ERLE, J. Incoming partner liable on severable contracts 148 5 721 ESTATE, joint. Title survived to living partner 105 472 Gives partners a status loi 433 Foundation of partners' powers | ^^ 959 Index, ? n And firm creditors' rights. • 99 100 I- 105 Severs firm from other transactions 102 In analogy to land became independent debtor 10; And is treated as distinct debtor loz Dr. KUNTZE makes it legal basis for firm transactions... loi Dr. ADLER denies to joint estate any legal standing 102 Would remain subject to separate execution 102 But admits its necessity | '°^ No exemption out of joint estate 105 ESTOPPEL, partner by. v. HOLDING OUT. EVIDENCE. Sharing profits shows title of proprietor 52 Hence prima facies 53 V. PROFITS. Profit sharer presumed proprietor unless disproved 59 Trading identifies profit sharers as owners at Common, not at Civil Law 57 In absenceof evidence amount of contribution Inferred for share of profits 56 page 410 418 472 I, a 443 475 437 2 434 439 7 446 439 8 446 g,a 482 2og 212 1 243 231 228 2 243 l,J,c 244 2,d-j 245 Non-proprietors classified by exceptions 5g Profits for services...! 59 For employment 59 Amount of profits paid employer not evidence, unless dis- guise for partnership 59 2 245 Hence indictable for larceny 59 2,4 247 Creditors' profits for management subject to partners 59 / 248 If partnership agency, intention sole test 54 4 221 And profits sharing would not be prima facies 59 243 But only one indication of partnership 57 6,a 23C Inference against partnership 167 278 As co-ownership. ■». CO-OWNERSHIP. Sale. V. SALE. Factorship. .;. FACTORSHIP. Bailment, v. BAILMENT. Gift. 1). GIFT. Sharing gross profits not evidence of partnership 62 255 Connecting lines partners only, if joint expense 62 260 Commission on sales no partnership 63 263 960 Index. ? n. pag ULPIAN'S pearl case; seller has all above limit 63 26 Lender sharing profits not a partner \ Jt ^ •- 66 6 27 Amount of interest or profits not proof 65 27 Though interest usurious 66 27 On issue of partnership, usury competent to disprove re- lation 65 I 27 Manager acting as partner 6g 3 29 Course of conduct as partner 69 5 29 If act of partnership evidence of relation inter se incom- petent 69 6 29 Issue excludes contract and relation between partners 6g 6 29 Competent to charge parties trading under common desig- nation 69 II 30 Declaration, if known and not denied by alleged partners, competent to charge 69 17 30 No order in proof of partnership 69. 18 30 Admission of partner evidence against co-partner 69 i8,& 30 Non-served partner incompetent witness 9; 4 40 Joining executors would not disqualify surviving partner, because not necessary parties 87 3 38 But query? 88 6 38 Surviving partner competent as to transactions since death of co-partner 125 7 62 V. PROCEDURE. V. ACTS OF PARTNERSHIP. Evidence of firm title to Real Estate, v. LAND. Deed evidence of partners' intention 117 58 Evidence of mistake in articles competent 141 6 70 Husband disqualified, v. JMARRIED WOMEN. EXCEPTIONS. That sharir^ profits by non-proprietor prove the rule 59 2 24 EXCLUSION. Of partner ground for dissolution i77 80 EXECUTION. 100 II 43( 105 47 Fi. fa. seizing only tangible property does not take any f part of firm stock | ;;^ ^ ^^ Seizure of stock only for inventory and sale of partner's interest i°6 6 49( 961 Index. Sheriff's attachment or sale of firm stock for separate debt trespass Partner may recover firm stock sold on separate execu- tion Separate judgment, c. LAND. Purchaser acquires only partner's interest after firm debts are paid Separate judgment only for partner's interest after pay- ment of firm debts Judgment against partner does not bind firm land Separate execution does not seize firm stock, but only re- sulting interest of partner Construction of Act 8 April, 1873, declaratory of practice, which excluded separate execution from firm stock and restricted it to partner's ultimate interest Statutory fi. fa. at first took precedence If no statutory fl. fa., writ which raised fund took it Subsequently common law writ equal to statutory Firm creditor needs no judgment or lien to prevent sepa- rate judgment creditor's taking firm stock in exe- cution Partner's lien for advances excludes separate judgment creditors At law separate executions could take firm stock if prior to joint execution Take balance if sheriff held joint and separate executions But liens antiquated and separate writ excluded Balance should not be awarded to separate creditors, but held for other joint creditors Separate executions satisfied according partners' shares... ■V. TENANCY IN COMMON. Limited to joint assets in suits between common member. EXECUTOR-PARTNERSHIP. Partnership does not survive a partner's death | i n. page 05 5,6 480 c6 9 491 165 5,6 784 105 3 479 106 5 490 109 1,1 518 115 10 572 "3 7 556 109 8,h 532 log 8,h, ■ 531 J 532 109 8,h 531 109 8,i 531 109 s,) 532 109 8.h; 531 106 4 489 ic8 3 501 106 5 489 116 6 { 71 71 580 109 8 526 109 8,b,c 527 106 4,5 489 109 8,d 529 log 8,/ 531 165 7 763 If business continued executor becomes a partner, making deceased partner's estate his contribution.., Liability continues as it existed at partner's death | ^'* 962 316 318 317 318 327 329 Index. ? n. page Contract to continue business charges deceased partner's wtiole estate 74 i 329 Estate becomes contribution and beneficiaries special part- ners by intieritance 72 319 Executor substitutes liis personal liability and limits con- f 74 327 tribution of deceased's estate I 3 329 Testator may limit contribution to part of his estate 74 3 329 Testator's disposition by will withdraws amount and limits contribution to residue 74 4 330 Excess unauthorized 74 5 330 Creditor loses right against decedent's estate by letting executor continue business 73 3 32; V. DISSOLUTION. Executor reimbursed only out of testator's contribution... 74 7 331 Also his creditors 74 9 331 Dependent on his equity 74 10 332 Executor not compelled to become partner ( ^^ ^ <- 2 322 Though directed by will or contract 72 319 Surviving partner continues firm 72 i 320 Executor's position fixed by his acts 7; 333 In general, executor acting in business is a partner \ ^^ ^^^ <- 1,2 323 Testator cannot exonerate executor 74 8 331 Liable first; then testator's estate 74 6 331 New York and Maryland exonerate executors acting un- der will or contract 72 319 In fall of 1889 executor partnership broken up in New f Pref. vii York I- 72 2 321 Estate left in business as investment < ^' ^^^ I. 1,2 335 May contribute estate in special partnership 7; 3 335 Executor's creditors direct right against deceased's estate 74 11 333 Executors enforce partner's equity for firm creditors 109 6 525 Executors necessary parties as defendants 88 6 384 Contra 87 3 381 V. PARTIES. EXEMPTION. Corporate immunity only exemption from unlimited lia- bility 24 I lOI No exemption out of firm property 105 9 482 963 Index. ? n. page FACTORSHIP. Sharing profits and losses of consignments 67&12 284 FAILURE. Of undertaking ground for dissolution J 34 5 I35 1 177 8,9 804 FAIWILY RELATION. Origin of partnership i 32 Does not rebut inference of partnership 22 34 FARMING. On shares, no partnership 12 64 But parties may make it 12 2 65 V. SUBJECT-MATTER, d. LANDLORD AND TEN- ANT. FELICIUS. Definition of partnership .". i68i.d 76 FEUDAL. Theory of property injected into partnership 3 35 And property measured partner's capacity ■< ^ ** •■ 100 421 FICTION. Joint obligation gi 393 FICTITIOUS NAME. Trading in, a misdemeanor in New York 7616 347 Construction repealed statute 76 17 347 V. NAME. V. PROCEDURE. Fl. FA. -u. EXECUTION. FIRM. Not recognized in law 76 i 337 Can neithersue nor be sued 76 337 Except in states, which have changed Common Law procedure 76 i 338 V. PROCEDURE. Exists without name 76 3151 Partners, conducting business under different names and at different places, but a single firm i68 2 774 964 INDEX. FIRM CLAIM. All partners join to enforce But one may sue on obligation of all Or all on obligation of one Partner represents firm and assignment by co-partner would add no new title Intervenes to protect firm assets Separate debt cannot be set off against firm claim f. PROCEDUE. V. SET OFF. FIRM- CREDITORS. Rights of, depend on the joint estate Right to joint fund and equal right with separate credit- ors to individual estate. Recover assets pledged for individual debt, if firm insolv- ent Pledge is a fraud on them Enforce partners' equity, a legal right and element of firm estate Exclude separate creditors, who can seize and sell only ultimate interest of partner Liens superceded by construction put upon separate judg- ment and writ confining them co-partner's ulti- mate interest Enforce deceased partner's equity -a. EXECUTION, v. MARSHALLING. FIXED CAPITAL. Does not become firm property FITTING, Dr. Herman. Civil Law indivisible contract FOREIGN JUDGMENT. Assimilated to domestic judgment V. JUDGMENT. FOREIGN POCESS. v. PROCEDURE. FCRUM. 'v. JUDGMENT. .. FOREIGN JUDG- MENT. 965 ? n. page 76 337 91 392 105 II 484 76 4 341 76 3 340 105 12 484 134 8 668 100 418 r 100 420 107 2.3 497 - Ill 5 542 io8 2 500 108 5 504 109 509 r 106 5 489 1 108 3 501 rio6 486 5 489 8,g 491 log S,<: 525 log 6 525 25 105 91 6 397 84 3.5 375 Index. 2 n. page FRANCHISE. Assuming, creates a de facto corporation 24 3 102 Only for public function 24 6 103 V. CORPORATION. FRATERNITY. Or Brotiierliood no partnership 16 i 76 FRAUD. V. STATUTE OF FRAUDS. In forming partnership gives claim to correct settlement... 217 ; go8 On firm creditors to divert firm funds for separate debt, if firm insolvent 108 5 504 V. TORT. FRENCH. Law makes contribution an advance 31 3 123 Fiction of partnership as a person 100 2 425 Profits shared according to contributions 36 139 Any benefit equal to money sufficient for partnership 16 76 FiJSSEL, Dr. Fred. Fransc. Distinction between company and corporation 37 d 146 GAIN. Object of partnership which came through trade 16 75 Benefit, equivalent to money sufficient at Civil Law iG a-d 76 Masonic Lodge not partnership 16 i 76 Nor is mutual protection or insurance 16 2 77 Or a tontine 16 75 Any association for gain partnership, e. g. car trust.., i5 6 78 GAMBLING. Consideration good defence for innocent partner 143 3 707 ... TORT, GENERAL. Course of conduct evidence of partnership 69 3,; 297 GEORGIA. Constitution provides each partner a homestead out of firm property jo6 2,a 488 Followed Massachusetts and made contribution a debt.... 32 125 Moral obligation supports express promise 220 3,* 916 966 I H7 I 115 127 140 4 141 2,i 362 I 354 3 436 Index. I n. page GERMAN LAW. Contribution firm property 29 Enhancement or depreciation of contribution goes to firm. 28 V. CONTRIBUTION. Contributions carry interest as da#ts 32 In default of contract profits sliared equally \ ^ • Partners are jointly liable to extent of tlneir property 79 German process 77 HURLEMAN'S summary of German Commercial Code... loi In reference to set off. i>. SET OFF. -j. RENAUD. v. VON HAHN. V. DERNBURG. GIBSON, C. J. Partners by contract bind third persons 103 448 Anomaly tolerated in favor of trade 103 i 455 Neither class of creditors can be restricted to either estate 103 449 Creditors not divided into classes, but creditors of each class take prorata 103 451 Partner's equity a property right and his separate estate. 109 516 Partner cannot submit to arbitration 124 i 616 Partner's authority to appear, or employ attorney, like his accepting service 123 2 614 GIFT. JWotive to give rebuts agency \ '* GLUCK. Profit according to contribution at Roman Law i Partnership for gain or not for gain I Services capitalized to equal contribution at Roman Law. | '' Nature of contribution 33 Payment of price condition of sale 109 GOLDSMIDT, Dr. L. Buying and selling type of trade 7 5 46 GOOD FAITH. Intimacy and trust required in predatory period of middle ages 2 33 Now a property relation 15S 739 967 3.'= 193 285 I 32 32 230 2 232 I 130 2 520 Index. i n. page Partner cannot compete with firm business 155 2,3 741 Profits by competition enure to firm 155 3-5 742 Advantage gained by a breach of good faith firm asset; loss charged wrongdoer 217 905 Breach must be proved ^ 217 i cjoy Partner must share secret gains with co-partner 217 7 90Q Settlement opened and parties surcharged for excess ac- quired by undue advantage 217 8 Qog Lease, renewed in anticipation of dissolution, asset 217 9 gog Partner must disclose to co-partners all information about the business i;; 1 740 Fraud in forming partnership claim in account 217 5 go8 Common member not charged for profits, but for with- holding information affecting transactions 217 906 Firm has no right to profits, if not in competition ; dam- ages for breach of contract, not of relation 153 Firm does not share joint property held by partner's wife rj; None required in mining partnership 15 GOOD WILL. Not seized by fl. fa ic6 Item in account 214 Assets, product of parties' joint labor 214 If sold, reputation remains common property of partners.. 214 Partner selling good-will may compete with co-partner, but not use firm name or style himself successor... 214 Passes with firm name 214 Carries the trade mark 214 If unsold both partners may use trade-mark 214 Geographical tract not a trade-mark 214 If partners disagree, sold to the highest bidder 214 Continuing partner must account for its value 214 Retiring partner has no right to appropriate it 214 Or solicit by it old firm customers -J '^5 •-214 GORDON, J. Court can issue new writs adapted to new cases 88 5 384 GOULD, Tracy. ' Account lies on isolated transactions, not involving dis- solution of firm 163 7;g 968 7 74; I 741 71 4 48g 895 8g; I 8g6 3 898 2 897 2,b 897 2,d 89S 2,e 898 6 899 6 8g8 6 899 5 744 896 Index. 5 n. page GROSS PROFITS. Sharing in, does not make partnership 62 255 Each owner takes profits or bears losses of his purpart... 62 256 One might gain and the other lose 62 i 257 Represents property, not profits 62 i 258 Connecting lines not partnership, unless at joint expense 62 ej 260 c. EVIDENCE. GROSS RETURNS, v. GROSS PROFITS. t>. EVID- ENCE. GOW. Incoming partnernot charged for contribution 20 i 88 GREEN, Wm. Partner's power to employ attorney 12-? i 612 GUARANTEE. By firm ends with death of a partner 71 i 318 Partner's guarantee of third person's debt does not bind firm 133 65b Partner cannot guarantee judgment, though necessary to f 133 656 effect sale 1 3 659 To partner should enure to firm, contra 133 i 656 Partnercannot give firm paper for co-partner's debt 133 656 Partner cannot bind firm by acceptance for individual debt 133 4 660 V. COMMERCIAL PAPER. Partner's guaranty of profits consistent with partnership. 35 2 138 HAHN, Dr. Frederick Von. German process 77 i,a,6 35; ( 134 3 664 Setoff \ 4 66; I 8,c 660 V. SET OFF. HAMILTON, G. F. Esq. Mathematical demonstration of partner's liability for total profits of trust funds contributed 42 4 165 HAMMOND, Anthony. Test of joint liability interest in the contract 44 i 172 Liability of co-tortteasors 47 i 188 969 Index, ? n. pgae HARE, J. I. Clarke, L.L.D. Joint liability at Common Law 44 i 173 Marshalling, if two funds 103 3 462 HEIR. Must confirm title to firm land 114 3 563 Could not assert title 116 n 581 V. LAND. HINDU RAJAH'S CASE. Control of business result of undoubted loan 64 4,c 271 HISTORY of partnership, v. ORIGIN. HOFFMAN, Judge. Correct view of contribution 32 126 V. CONTRIBUTION. HOLDING OUT. Three ways: i. Direct authority. 2. Consent. 3. Knowledge and neglect to prevent 6g 291 Liability arises from injury to persons misled by 6g 291 Measure of liability the same for direct and for indirect authority 6g 291 Contra , 69 i 296 Management holding out, unless disavowal of partner- f 6g 292 ship I 3 297 Course of conduct charges held out partner 6g ; 298 Only if plaintiff relied on it 6g 292 Note discounted by plaintiff and paid by defendant charges him for second note 69 8 301 Acting as partner by non-partner 6g 294 Parties, trading in joint name, partners ( ^ •■ II z. NAME. Representation for future partnership 6g 10 302 Agent's holding out limited by class of acts; partners by scope of business 69 10 301 Holding out may anticipate partnership 69 ig 305 Declarations, admissions or acts, if relied on by plaintiff and not denied by defendant, sufficient 6g 18 305 Partner's admission charges alleged co-partner only if present and neglects to contradict 6g 18, a 306 970 294 302 Index. ? n. page Clerk's knowledge charges employer, if he relied on him as his substitute 6g 17 305 Facts of holding out for jury 6g i8,b 305 Test not defendant's intention, but natural construction of his words 6g 18, c 306 Reputation insufficient to prove partnership 6g 15 304 Denial of partnership must be to customers ; forbidd- ing party to use name, gives him implied author- ity 6g 13 304 Infant's failure to deny at age, holding out 6g 21 309 Married woman, if she continues business after death of husband 69 21 309 Partner by estoppel marshals estate for relief of his lia- bility 6g 20 308 Bankruptcy of partner by estoppel does not prevent mar- shalling assets 69 296 Contra 69 23 309 Equity must adjust rights of all partners 69 296 Joinderof nominal partner as co-plaintiff depends on setoff 69 22 V. PROCEDURE. Evidence of relation Inter se incompetent for or against f 69 6 299 partner by estoppel 1 150 4 727 HOLT, Lord. Partner's purchase binds co-partner ; i 40 HOMESTEAD. Out of firm land subject to partnership debt 105 g,a 482 Except in Georgia 106 2,a 488 HUNTER, Dr. W. A. Civil Law indivisible contract gi 6 398 HURLEMAN, Dr. Cantonsprocuralor. Partnership originated at Roman Law, where partner could not withdraw property from separate estate. Peculium managed by slave, no analogy for busi- ness conducted by freeman lor 3 43; Son or slave could not incur personal liability, hence credit fund 168 773 Proprietor, carrying on by institutors different trades, un- known... loi 3 435 gyi Index. § n. page I. Partnership not a legal person. 2. Governed by Roman Law. 3. Firm but a short name for partners, who are individually liable. 4. If one partner solvent, firm also solvent. 5. Firm assets part of each part- ner's assets. 6. Firm creditors have no preference, but share separate estate pro rata with separate creditors. 7. Firm creditors have advantage over separate creditors, by having more than one debtor loi 3 436 No legal basis for privilege of firm creditors 100 3 426 HUSBAND. Sharing wife's profits a partner, she being under disabil- ity 58 3 241 Of partner incompetent witness 142 4 703 Liable for wife's antenuptual partnership debts 142 5 703 Can trade as wife's agent \ ''*^ Z°^ I- igg 4 854 Attorney as officer of court may appear for wife as for another 123 j,d 613 T.. WIFE. .. JURY. HUTCHINSON, R. Account preliminary to sale on execution 105 6 481 IHERING, Von. Self interest extended by partnership 56 a 229 ILLEGAL BUSINESS. Excluded from account 216 902 If only in part 216 i 903 Account for lawful business though illegal gains invested f2i6 903 in it I- 3 904 Partners agreement not to furnish recruits for less than $500 not unlawful 216 2 904 Gambling consideration prevents recovery on contract.... 143 3 707 v. LOTTERY. V. GAMBLING. ILLINOIS. Makes contribution a debt 32 125 V. CONTRIBUTION. IMPROVEMENTS. t 28 3,4 116 On partner's real estate belong to firm ■! 114 ^61 ^ 9 567 V. CONTRIBUTION. 972 Index. ? n. page INCOMING PARTNER. V. CHANGE OF PARTNERS, v. RATIFICATION. INCORPORATION, v. CORPORATIONS. INCREASE. V. CONTRIBUTION. INDIANA. Holds that contribution is a debt 32 125 V. CONTRIBUTION. INDUSTRY. Partnership in I ^ ^^ 1. 7 6 46 INFANT, Not a party defendant 76 8 342 But might be a co-plaintiff 76 g 342 Except for set-oft 76 342 By continuing business after age becomes liable on pre- [ 69 21 309 vious contracts ' 140 i 697 As well as for future contracts 140 5 697 Retaining property after age confirms contract 140 2 697 If retains assets must perform condition 151 i 729 May reclaim his contribution 140 6g6 Even if firm insolvent 140 4 697 Contra, if lost, not charged on co-partner 140 4,c 698 No contract binds him 141 i 700 As he may reject at age 140 4,6 6g8 Contra 141 2 700 He cannot recover premium for admission ■< '^ I. 5 701 Purchase of interest not contribution 141 6 701 V. DESTINATION. INSANITY. Ground for dissolution 177 n 805 Co-parter must elect to treat judicial finding a dissolution 177 u 805 Partner can not buy insane co-partner's share at sheriff's sale, at least with firm funds 106 4 489 INSOLVENCY. Ground for dissolution 177 10 805 Of partner does not incapacitate him 137 2 684 Firm, if insolvent, cannot pay partner's separate debts... 108 498 973 INDEX. i n. page Vests title in firm creditors io8 499 Cases contra 104 i-io 463 Depend on theory of tenancy in common 104 5 465 V. MARSHALLING. INSTITUTOR. Did not act for proprietor in different trades loi 3 435 V. STATUS. INSURANCE. Mutual, not partnership 16 2 77 By partner covers whole stock 105 10 483 INTENTION. Leaves partnership undecided 23 92 V. CONTRACTS, PARTNERSHIP. Negatived by acts 45 181 Inoperative against legal effect and construction of law.... 45 183 Calls forth acts, which law defines 50 198 C 54 3,4 221 Only test of partnership, if species of agency < 57 230 (- 3 232 (■ 55 2 225 No external clue ■! 56 I 229 ^ 57 231 INTEREST. On advances, v. ADVANCES. On contribution. 0. CONTRIBUTION. In addition to profits, v. EVIDENCE. IOWA. Makes firm a party 76 i 338 Judgment does not merge cause of action 82 i 369 V. PROCEDURE. JAMES, Lord Justice. Partner's use of trust funds a loan 40 2 156 JOINDER. At Common Law joint ownership or joint possession 5 39 Neither owner or possessor could alien or mortgage 4 2,3 38 Trade carries power to sell co-partner's share 5 39 Not in trade creates liability but no power 44 i 173 974 Index, In trade makes parties masters of the business and charges them as principals Joint contract includes individual Of proprietors shown by their trading Out of jurisdiction excuse for non-joinder Joinder waived by not pleading it in abatement Discretionary power not equal to plea in abatement Only plea in personal discharge of defendant, e. g., in- fancy, discharge in bankruptcy or insolvency, or death, severs plaintiff's claim Joinder of surviving and executor of deceased partner. 45 46 47 48 57 76 80 76 84 86 87 n. page 182 186 189 192 231 233 341 364 341 I 374 I 378 6 379 2,3 381 383 L 88 5,6 384 JOINT AND SEVERAL contracts. v. BUSINESS CONTRACTS. JOINT CONTRACT. Frustrates process at Common Law 81 365 V. BUSINESS CONTRACTS, v. ACTS OF PART- NERSHIP. JOINT CONTRACTORS. Partners 44 i,« 172 JOINT CREDITORS, u. FIRM CREDITORS. JOINT DEBTORS. Partners after dissolution are 182 JOINT ESTATE, v. ESTATE. ■,-. PROPERTY, v. MARSHALLING. JONT EXECUTION, v. EXECUTION. JOINT LIABILITY. Useless without joint fund...., 102 JOINT OWNERS. Have no powers, if not partners 5 Of ship and cargo with consignee 67 Liable as if single 76 9. JOINDER. 815 439 4 40 9 282 5 341 975 INDEX. i n. page JOINT PURCHASE. Charges all with whole price | ^^ JOINT SUIT. 195 2 197 Nominal partner co-defendant with partner In fact I ^° ^'° <- 2 314 Contrary notion based on partnership contract inter se... 70 i 313 Which is excluded by issue 69 6 299 Each joint obligor or owner liable as if sole 76 5 341 Pennsylvania first required joint action to prevent merger 83 370 JOINT TENANCY. Holding property by single title 97 413 Transition from family, to individual title of modern time 98 414 Only explanation for firm creditors' preference iii 537 Adapted to commercial uses gg 416 V. ESTATE. JOINT TITLE. Enables partner to intervene and protect assets 10; 12 484 V. PROPERTY, z^. LAND. JUDGMENT. Civil Law limits in first instance to joint assets ; but ex- tends to bind partners, unless personal defence 77 i 354 Common Law releases partner not served 77 3 357 Releases dormant partner, though concealed 84 i 374 Only one judgment for cause of action 91 394 At Common Law, if against partner, several and could f ^^ ' 405 not stand | ^ 407 <■ 129 1 637 Merges cause of action 84 i 374 Statute prevents merger 82 367 Must conform to declaration 94 i,& 403 Founded on process against parties -j ^ Against more, or less, than declared against, bad 94 1,2 402 Against partner served and local assets < ^ ^°° *■ 3 410 Against firm binds its real estate ii; 6 571 As well as partner's separate estate from date of entry... < "' 408 2 410 569 7 571 976 Index. ? n. page Against partner does not bind firm land | "^ 553 Only his Interest after firm debts are paid |"5 10 572 1 116 6 580 Against surviving and executors of deceased partner charges firm land in hand of heirs 116 11 581 In Pennsylvania judgment binds the record title 115 3 571 But separate judgment no lien on non-title-holding part- ner's purpart 115 g 572 V. APPEARANCE, v. POWERS, v. EXECUTION. V. GUARANTEE, v. TORT. v. CONFESSED JUDGMENT. JUDGMENT CREDITOR. Of firm needs no lien, if firm insolvent 108 499 Separate creditors excluded 108 3 ;oi Separate execution takes no property ; but entitles pur- chaser only to account 106 5 490 Notion, that separate had preference over firm creditor ( without judgment, relic of fi. fa. seizing partner's \ l'" i portion (. '^ ^ ^^^ Lien binds partner's separate estate 115 ;68 JUDICATURE ACT and JUDICIAL ORDERS. Adopted Civil Law process 77 2 356 V. PROCEDURE. JURY. Finds terms of partnership contract, if oral 21 89 If evidence is sufficient 21 1,2 91 Division of profits 36 5 141 Whether partner assumed loss of co-partner's contribution 34 3 134 Husband principal or agent of wife 6g 18, S 305 JURAL ENTITY. A joint estate without its legal basis 102 437 KAH, Dr. Bernhard. States Dr. KUNTZE'S view loi 2,b 435 KANSAS. Joins surviving and executors of deceased partner 88 7 386 Release of partner does not release co-partner 90 4 391 977 Index. ? n. page KAUNITZ, Cor. Property the basis of partnership 51 i 206 KELLER, Dr. F. L. Civil Law indivisible contract 91 6 397 KENTUCKY. Charges contract debtor, or judgment debtor's estate 89 4 388 "KITING." Valid if for firm benefit 128 4 635 V. COMMERCIAL PAPER. KUNTZE, Dr. Emil. Makes the joint estate the legal basis for partnership transactions loi 2 434 LABAND, Dr. Paul. Partnership a contract relation 103 i 455 Contribution a pledge for firm creditors 102 438 LACHES. Deprives partner of right to appointment of receiver 186&1 827 Also bars an account 219 5 912 LADD, J. Contract implied by law to enforce duty 46 i 187 LAND. Became in effect a legal person 3 36 At Common Law not merchandise; buying and selling f 8 46 distinct acts, not fused into one I i .47 Joint tenancy mould of title to firm land 113 548 Real estate contributed only if substance of firm transac- f ^^ 105 tions I '°8 <- 1 14 6 566 Land a firm asset without resort to fiction 114 558 Primarily liable for firm debts | ii4 559 562 Though partners tenants in common, firm creditors entitled to land 114 4 563 Firm beneficial ownership 82 47 Judgment against title holding partners no lien as against J 115 10 572 firm creditors t.116 6 580 978 Index. Title holding partner may convey firm land Unless purchaser had notice of firm title Partner's heirs must convey title to land Assets though descent to heir Partners' construction of title binds heirs Judgment against surviving and executor of deceased partner charges land in hand of heirs Fiction of conversion unnecessary But in England conversion of larid out and out Taxed as personalty ? n. page 561 567 567 563 114 7 114 8 114 3 114 3 115 16 Covenant formerly necessary to re-convert land. 116 113 114 113 113 13 But now intention suflficient.. Intention, if disclosed in any mode, sufficient Taken for firm claim used by firm and improved with firm funds In Pennsylvania record settles title. But if record not involved intention prevail.. Conveyancing founded on judgment being a lien at date of entry Title cannot be shifted by parol If title in partner land separate estate Price and use will not make it firm assets Partners buying land with firm funds and for firm use take as individuals Personal representatives take proceeds of purpart sold by Orphans' Court for payment of firm debts Only protection title 979 563 574 ;8i 551 558 550 554 67 68 555 574 578 67 68 555 575 555 556 579 569 572 584 590 49 68 572 591 113 7 556 117 l,d 589 117 I 588 117 l,b 588 3 113 5 116 I 13 3 113 5 1 16 113 .6 113 6 116 5 115 II 117 3 9 I 13 3 "5 9 117 4 117 2 590 117 3,* 590 9 48 ii8 2 119 INDEX. I n. page In strangers 92 49 Infirm g 3 49 Judgment against partner does not bind firm land 113 7 556 Separate judgment against non-title holding partner, no f"' ^ 572 lien ] "7 585 I 4 591 If death reconverts and widow entitled to dower 113 g 557 Then creditors would intercept title 113 553 Query: Inchoate at death, completed by liquidation 113 8 557 Judgment against firm binds its land 115 6 571 And partner's separate real estate •. 115 7 571 Equity does not disturb liens 115 568 Right to half on sale vests half as contribution | ^° Partner's mortgage of his land for firm debt makes it firm asset 115 14 573 Partnership for improving land 11 63 Enhancement in value or Improvement enure to firm < "'^ <■ 3 116 Losses in value charged to firm 114 6 566 V. CONTRIBUTION. Widow's dower out of partnership land subject to firm debts 116 13 581 Except in New York -f "3 3 554 <-ii6 16 583 Oral partnership for dealing inland 10 49 V. STATUTE OF FRAUDS. LANDLORD. Priority over separate partner's mortgage of his interest.. 116 12 581 LANDLORD AND TENANT V. SUBJECT-MATTER. Relation not superceded by partnership 12 64 Unless parties substitute partnership 12 2 66 Tenant has possession during term 12 i 64 Title to crop incident to possession 12 i 65 Execution against landlord does not sever interests 12 i 65 Cropper, not a tenant 12 i 65 New York and Massachusettes treat farmers as co-occu- pants, i. e., as co-tenants 12 1 66 g8o Index. ? n. page LAW. Recognized joint tenancy 105 472 Rejected tenancy in common 106 484 LAW MERCHANT. Not adopted for partnership, except in part | ' ^5 •^ 37 143 Sale of co-partner's share involved purctiase and any con- f ; 39 tract in trade t 3 40 Partnership joinder in business 4; 182 Did not charge special partner beyond his contribution 37 142 LEACH,Sir John, V. C. Partner must share with co-partner profits of purchases made with individual funds 155 3 742 LEASE. Assignment executed by lessee 116 19 583 LEGAL EDUCATION. Historical, dogmatic and comparative study of law Intro. 25 Study of principles Intro. 21 Case-system patch-work Intro. 22 LEGISLATION. Corporations' acceptance of, renunciation of charter priv- ileges 24 II 104 LEIST, Dr. B. W. History of partnership at Roman Law.. 12 33 LENDER. Not a partner, v. EVIDENCE. LIABILITY, LIMITED. {26 2 III 5 112 37 143 As an exception and upon notice to customers 26 iii Distinction between corporation and company overlooi■ I 277 Each partner separately liable for firm debt -j ^^ ^'^ Remodelled procedure in part I ° ' 'o Attorney, to represent client, must have his authority 123 i 612 Subjected separate writ to account 100 429 MANUFACTURING. Without joint selling partnership 76 46 MARKBY, Dr. Wm. Joint tenancy transition from communal to individual ownership 98 2 415 MARRIAGE. Of woman partner dissolves partnership 177 801 MARRIED WOMAN. Continuing business after husband's death partnership from beginning 69 21 309 No capacity to contract partnership debts 142 i 703 If permitted, treated as partner 142 2 703 Can act as husband's partner 76 16 347 Or agent in a firm 142 3 703 If a partner, husband incompetent witness 142 4 703 Ratification of, after discoverture relates back to begin- ning 69 21 309 New York statute permits to trade on own account 69 20 308 986 Index. ? n. page MARSHALL, C. J. Carried out revolution in procedure begun by Lord MANS- FIELD. Judgment against partner on joint claim does not merge it 93 i 401 MARSHALLING ASSETS. / 106 484 Ttieory of, excludes tenancy in common < 107 491 '- I 49; Siiows tiie want of principle 195 843 Credit not cause of partners' estate, but consequence of it as means of payment 195 843 At Civil Law son or slave could not incur personal liabil- ity; hence credit to fund 19; 844 If partnership a contract, separate creditors would be f 104 462 equal to joint creditors 1 106 485 But owner cannot, by contract, withdraw property from his creditors' execution 106 484 C.J.Gibson 103 i 455 Dr. ADLER ; 102 7 446 Partners could, though insolvent, satisfy individual cred- itors with firm stock 104 I 463 C. J. Gibson held that neither class of creditors have preference 103 448 Judge SHARSWOOD corrected C. J. GIBSON'S miscon- ception 103 2 457 Partner's acquiescence would ratify diversion 104 6 467 Partners could by agreement prefer separate creditor 104 3 464 Firm creditors could not prevent diversion 104 2 463 Would not be fraud, as partner paid his debt 104 8 468 Partner would seize stock for his contribution in prefer- ence to firm creditors 104 4 464 Or withdraw or mortgage it on insolvency ■{ '°4 ' 4 •- 7 467 Joint estate basis for marshalling : 105 472 Classifies creditors 107 492 Makes joint, paramount to separate creditors 103 451 Firm creditor's judgment binds separate estate 197 2 849 Joint creditor may prove against separate estate 107 2 497 Partners and separate creditors subject to joint Creditors.. < '° I, . ^ •■ 109 8,h-j 531 987 INDEX. Equity based on recognized liability of separate estate at law Creditor of one debtor cannot confine creditors of two to second, .unless first surety for second ; if partners both principals, and separate creditors cannot make partners compete with their firm creditors Partner's obligation not additional, but identical and con- stitutent of firm obligation If partner buys out co-partner and assumes firm debts, firm creditors may enforce undertaking of pur- chaser by substitution for Or in addition to, partnership liability If but a single fund Common Law prevails, and equity no jurisdiction If no joint fund firm creditors share at law separate es- tate with separate creditors Equity does not destroy, but controls firm creditors' right to separate estate Equity jurisdiction to control firm creditors, only when they have joint and separate estate Then only to prevent taking separate estate first and sur- render equivalent for dividend received from joint estate For balance unpaid hold separate estate Rule of convenience, which restricts each class to its fund a consequence Protects only separate estate, not partner's separate claim against co-partner, unless, but for enforcement of claim surplus for joint creditors For partner cannot compete with firm creditors, being himself also a debtor But may compete with separate creditors of co-partner.... Partner paying all firm debts may prove against separate estate If no firm creditors partner may prove against co-part- ner's separate estate Balance due on settlement a lien on firm fund i n. page 196 •-199 2 846 «5i 112 546 /198 1 200 2 851 855 20; 863 109 2,C 521 112 545 103 453 4 462 107 3 497 [197 848 200 855 f 103 453 197 848 1 201 856 107 492 I 496 200 855 4 856 t^II2 5 542 545 107 492 r202 858 J203 861 1 304 862 203 86i 206 866 206 2 867 203 2 861 206 3 867 Index. Separate creditors of each partner distinct body ; and sep- arate creditors of co-partner cannot contest part- ner's right, to prove against co-partner Bankruptcy rule superceded by statute V. DOUBLE PROOF. When firm insolvent assets belong to firm creditors Who may reclaim payment made to separate creditors.... Though pledged for separate debts, belong to firm credit- ors If firm insolvent fraud to pledge partner's individual as- sets for co-partner's cebt But may for partnership debt Transfer, unless for full value, passes no title Separate debt no consideration to firm. Assignmentto co-partner, or withdrawal, fraud on creditors Firm creditor's right does not depend on any lien, or equity Partner's equity, if property right, belongs to creditors.... Common member of different firms furnishes no ground for marshalling. Election relic of joint contract as distinct from promises of co-partners ; at Common Law double claim No set-off between partners Partner's debt to firm, or firm's debt to partner not assets Succeeding firm with liquidating partner common mem- ber subrogated to creditors collects debt out of de- ceased partner's estate ; though himself indebted.. Representatives of deceased partner, though estate ex- empt at law, cannot claim in competition with firm creditors 989 ? n. page 204 I 863 |209 874 3 875 108 498 196 845 rioS 499 2 500 l 5 504 104 10,3 472 104 io,b 472 |io8 499 4 501 104 8 469 10 471 108 2 500 5 504 1 199 3 853 108 6 ;o6 rio8 499 3 501 (.199 3 853 104 9 470 210 876 r 879 207 870 ['202 4 860 206 868 207 869 2 871 L208 871 208 209 871 873 INDEX. ? n. page Partner's debt to firm incurred by fraud collected on in- solvency , 202 2 859 Separate creditor's recover amount diverted on his insolv- ency from separate estate to pay firm creditors 203 I 861 Retiring partner may prove in competition with new firm creditors 209 2 875 Surviving partner cannot prefer firm creditor 196 i 846 Retiring partner may marshall the assets in relief of his liability 151 i 729 Nominal partner entitled to marshall the assets 69 20 308 Creditors of new and old firm share the assets 151 3 729 If firm in individual name separate creditors rank as joint 76 24 351 MARYLAND. Brings in non-served obligor by alias or plures writ, and prevents judgment merging cause of action 82 i 368 Suggests death, and substitutes representative 88 7 386 Grants sci. fa. on judgment against deceased's represen- tative 89 4 389 MASONIC LODGE. Not a parnership... 16 i 76 MASSACHUSETTS. Makes contribution a debt 31 122 But refuses interest 31 6 124- And lets title revert on dissolution 31 7 124 Followed by other states 32 12; V. CONTRIBUTION MATTHI/E. Different trades of single trader separated only if no per- fin 4 542 sonal liability 1. 196 i 84; MAYNZ, Prof. Chas. Actio tributorla severed different trades i58 6 775 MEASURE. Of damages for premature dissolution 217 3 907 V. DAMAGES. MEREDITH. Sale includes pledge 42 38 MERGER. 1). JUDGMENT. 990, Index. ? n. page MICHIGAN. Judgment cautionary against non-served obligor 82 3 Estate of deceased co-contractor liable on contract or judg- ment Compromise does not release co-obligor qo MINING PARTNERSHIP. No choice ; owner of share partner Purchaser of interest liable for all firm debts Partner has lien for advances Receiver only if destruction of business imminent Partner's power limited by exigencies of business May buy mine of retiring partner in competition with co- partners MINNESOTA. Judgment on joint cause of action against any defendant Estate of deceased co-contractor liable on contract or judg- ment Compromise does not release co-obligor 89 94 MISAPPROPRIATION. Of firm property charges partner criminally 147 V. TORT. MISCONDUCT. Unless it excludes co-partner, not ground for dissolution.. 177 MISMANAGEMENT. Action for, does not lie during partnership 159 MISSISSIPPI. Action lies against surviving and representative of de- ceased partner 88 Compromise does not release co-obligor go MITCHELL, Judge J. T. Former rule of marshalling assets in Pennsylvania io6 MONTAGU, Basil. Separate bankruptcy proceedings subject to joint credit- f 105 ors' rights •■ 369 89 4 389 90 4 391 71 I 72 2 72 3 72 4 72 15 4 73 13 386 389 391 7i8 802 752 385 391 487 478 484 991 INDEX. ? n. page MORAVETZ, Victor. Parallel between members of de facto and de jure corpora- f ^'* ^ tions 7 103 <- 10 104 MORTGAGE. For individual does not cover firm loan ro2 i,<: 445 V. MARSHALLING. Of partner's land without notice to mortgagee carries firm improvements 114 7 567 If for firm, makes it firm assets 115 14 573 MOSES. Pillars of cloud and of fire 37 3 151 MOTIVES. V. EVIDENCE. MOYLE, J. B. Civil Law indivisible contract gi 6 398 MURRAY, A. Tumour, Esq. 7 Law Quarterly Rev. 53, iSgi. Separate estates indemnified for excess of payment beyond eacti partner's quota of loss 103 2 459 Denies joint estate. Notion founded on individual liabil- ity and estate apportioned among partners 103 45g Principle of marslialling not explained but subverted 103 459 Illustrations could not arise in practice, which arrests joint execution on separate fund 103 460 Partner cannot compete with his firm creditors 103 460 Indemnity domestic rule subject to paramount title of firm creditors 103 460 MUTUAL INSURANCE. Or protection not partnership 16 2 77 NAME. Surplusage in legal proceeding | 44 9 180 •■ 76 351 Partner may select for firm 44 8 iSo Partner may sign co-partner's name 44 7 179 Partner's, in firm designation charges him, which ex- f 69 i 296 plains Pollion v. Secor t 7 300 " Co." implies individual partner 69 7 301 992 Index. ? n. page All trading under common designation partners 69 11 302 Common agent trading in his name charges principals as partners 69 12 303 New York makes trading under fictitious name a misde- meanor 76 16 347 Courts repeal statute 76 17 347 Certificate of name preliminary to suit in California 76 348 If partners trade in individual name, commercial paper presumed for firm in Pennsylvania 7619 34^ For individual account in England and elsewhere 7620 350 Slight evidence will rebut presumption 76 22 350 Separate rank as firm creditors 76 24 351 If individual name common designation for two firms, creditors may hold either 7620 350 Partners may agree to sue or be sued in company's or trustees' name 76 337 NAPOLEON, CODE, v FRENCH. NEBRASKA. Makes firm a party 76 i 338 NEW JERSEY. Charges deceased partner's representatives 88 7 385 Compromise does not release co-obligor go 4 391 NEW YORK. Makes trading under fictitious name penal 76 16 347 V. NAME. Prohibits concealment of beneficial title to land 116 4 579 Dower attaches to partner's purpart 116 16 583 Partner's confessed judgment binds firm 126 626 Judgment by unauthorized attorney binds defendant 123 i,^ 613 NOMINAL PARTNER. V. HOLDING OUT. As co-plaintiff 76 343 Equity of. v. EQUITY. Evidence of relation inter se incompetent 69 6 299 Not bound by co-partner's subsequent entries in firm books 150 4 727 NON-COMMERCIAL PARTNERSHIP. Partnership outgrew trade and transacts any business 7 43 993 Index. ? n. page Powers defined by exigencies of business 14 6g Locating road, securing terminals, riglits of way, town contribution, preparing profiles, estimates and specifications prerequisites for construction of rail- road 14 I 69 Wages and supplies necessities for plantation 14 i 7° Sheep raising does not involve sale 14 i 7° Theatre business does not require commercial paper 14 i 70 I^lor does mining partnership i; 4 73 Which is distinct species 15 7i ■V. MINING PARTNERSHIP. Custom might justify notes for farm implements 14 2 7i Partner's authority to give commercial paper for jury 128 8 635 Only use of stock contributed 25 3 109 NON-DISCLOSURE. Of co-partner no defence to firm suit on partner's con- tract 76 4 341 NON-JOINDER. Of a partner no bar to recovery of insurance 10; 11 484 ■o. PROCEDURE. NON-SERVED PARTNER. May strike off judgment against him, though satisfied.... 94 i,b 403 NORTH CAROLINA. Partner liable, though not defendant in suit and judg- ment 82 I 368 NOTES. V. COMMERCIAL PAPER. NOTICE. By co-principal, that he is surety and not principal, no re- / 153 733 lease of obligation *■ 6 735 Partner's notice to co-partner not to hold him out implies authority to do so 69 13 304 At dissolution. ■». DISSOLUTION. Actual equal to constructive 126 5,a 629 NOVATION. New partner necessary to make binding 153 732 V. CHANGE OF PARTNERS. 994 Index. I n. page OHIO. Attorney can appear only by client's authority 123 i,a 612 Compromise with partner no release of co-partner 90 4 391 OMNIUM BONORUM. Result of family union i 32 Partner'sequity distinguishes it from trade partnership... | '°9 5io •- 120 601 Firm obligation not omnium bonorum obligation 192 i,a 443 OPTION to become a partner. Unless exerted, does not make partner by contract, estop- pel, or holding out 18 3,4 82 But if a cover, partner as to third persons | '^ *' Plaintiff must prove relation back 18 4 83 ORAL CONTRCT of partnership, ■o. STATUTE OF FRAUDS. ORIGIN OF PARTNERSHIP. Worship of ancestors united descendants in a family in- heritance , I 32 Relation enlarged and made voluntary by patron and client I 32 Societas,, if by contract, Communitas if not i 32 Trade partnership introduced by farming public revenues i 32 ORPHANS' COURT. Has no jurisdiction over unsettled partnership account 221 i 918 Consent of all partners necessary 221 917 OSTENSIBLE PARTNER. Cannot compel plaintiff to join as defendants partners not known to him 76 344 OUTGOING PARTNER, v. CHANGE OF PART- NERS. OUTLAWRY. Non est inventus not equal to, because no satisfaction out of non-served partner's estate 81 4 367 Though process not arrested 96 4 410 OVERDRAFTS, v. ADVANCES. 995 Index. i n. page PANDECTS. ^.DIGEST OF JUSTINIAN. PARSONS, James. Tort confounded with breach of contract 47 2,6 i8g PARSONS, Dr. Theophilus. Partnership both corporation and aggregate of individuals 100 2,b 426 PARTICIPATION. In profits at Civil Law 51 203 V. PROFITS. PARTIES. Defendant may plead non-joinder of party by estoppel.... 6922 309 Firm no forensic standing 76 i 337 Unless by statute 76 i 338 V. PROCEDURE. "Person" of Act May ii, 1881, substitute for " party" to the record of Act April 9, 1876 125 8 621 By old law non-joinder severed claim only, if a defendant discharged, e. g., by infancy, discharge in bank- ruptcy, insolvency, absence from jurisdiction or death 84 i 374 V. JOINDER. PARTNER. Co-proprietor at Common Law 4 36 / 4 36 gg et seq. 416 PARTNERSHIP. Natural division: i. Entering relation. 2. Principles regulating business. 3. Liquidation 2g At Roman Law, contract relation, at Common Law, insti- tute of credit I 31 Originated in worship of ancestors, and came into Com- mon Law through trade I 32 Antedated contract or consideration 2 33 Property made the test at Common Law 3 34 Civil Law made unlimited liability depend on manage- ment 3 35 Has outgrown trade 7 42 May exist for improving land 11 63 For manufacturing 76 46 Not originally for buying without selling 7 1 43 996 Property measures his capacity ■> INDEX. § n. page Or selling without buying 67 10 283 Either sufficient at Civil Law 7 42 Nor for farming 12 64 Object of partnership, gain 16 75 Loan with interest and with a share of profits 48 4 193 Relation a status loi 432 Not founded on contract 103 448 Dr. Laband, like C. J. GIBSON makes it a contract rela- tion 103 I 455 If indulgence to trade inadequate 104 462 Civil and Common lawyers unable to justify firm cred- itors' preference 100 i 425 French adopted fiction of a person to charge assets, but abandoned it in all other respects 100 i 42; Neither a corporation nor a person 44 i 171 Definition by French Code 16 d 76 Legal aspect of partnership concerns third persons 48 igo Words cannot neutralize acts 49 191 Partners inter se adjust terms at will 48 192 Roman standard still type of partnership 56 227 Partner may indemnify co-partner against loss 48 3, a 192 Or guarantee him profits 25 2 138 Partner might act for co-partners without any interest in the busihess 48 3,c 193 In non-commercial partnership partner may own the stock 25 3 109 Province of court and jury. v. COURT AND JURY. Qualification for incorporation, v. CORPORATIONS. In profits not in stock a misnomer 27 112 V. PROFITS. Inference against partnership 67 278 PARTNER'S NAME. v. NAME. PATENT. Co-owners of, not partners 67 6 280 PAXSON, J. Cestuy que trust may waive tort and sue in assumpsit 145 i 715 PAYEE. Joint payees were held partners 6&1 41 But are not now 6&2 41 ■V. EVIDENCE. V. COMMERCIAL PAPER. 997 Index. § n. page PEARL CASE. Commission on sale above limit 63 a 266 At Civil Law question of intention 63 263 At Common Law not partnersliip, because expenses not divided 63 26; Owner undisclosed principal 63 266 PENALTY. Of official bond distributed among creditors pro rata 109 %,d 529 PENNSYLVANIA. Aliened sovereign prerogative by delegating incorpora- tions to individuals and renouncing its right by constitutional prohibition 37 « 146 r 34 130 Divided total and partial loss according contributions ] 35 137 ^ 4 138 Trading in individual name. v. NAME. Prevented judgment against partner merging claim against co-partner 82 367 Action must be joint to prevent merger 83 370 Service need not be adverse 83 i 371 Deceased debtor's estate charged 87 387 Compromise with partner no release of co-partner go 4 391 Conveyancing founded on limiting lien of judgment to date of its entry 113 7 556 Record settles title to land 117 584 Attorney represents a client without his authority 123 \,d 613 Partner cannot submit to arbitration 124 i 616 Surviving, not assignee of deceased partner ico 8 428 Contra 125 618 Surviving partner may testify of transactions since co- partner's death 125 7,8 621 ■V. PROCEDURE. V. EVIDENCE. PERSONAL REPRESENTATIVE, v. EXECUTORS. PLEADINGS. Ignore partnership and enforce joint liability 44 i 171 Plea in abatement, or judgment binds defendants as sole obligors 76 5 341 Discretionary order of court not equal to plea in abate- ment 76 5 341 998 Index. ? n. page Non-joinder of partner waived, if not pleaded in abate- ment 80 I 364 V. PROCEDURE. PLEDGE. Power to, included in power to sell 42 38 Results from power to sell and borrow 127 631 Partner may pledge firm claim before maturity 127 i 632 All the firm stock for firm debt 127 2 632 ■o. POWERS. POTHIER. Contribution firm property 33 i 130 Makes pearl case question of intention 63 b 266 POWERS, PARTNER'S. To buy and sell arose from trade 5 39 V. LAW MERCHANT. Partner right to sell co-partner's share of firm stock 5 39 Business creates powers for its transactions 4g 195 Trading indicates proprietors 57 231 To sell firm stock in course of trade 118 594 Holding legal title to land enables partner to deal with land as he does with personalty 116 18 583 To sell whole firm stock only if co-partner inaccessible and to prevent adverse sale ii8 i 595 Power to buy limited by usual course of business iig 597 Authority limited to simple contracts 120 599 Scope of business general statement 120 600 But liability of co-partner's separate estate limits part- ner's authority 120 600 Partner cannot bind firm by specialty "121 602 Discharge of firm by executed contract not an exception, because seal surplusage 121 i 60; E.g., assignment of firm judgment in payment of firm debt 721 i 606 Release only if debt existed and payment made 121 2 607 Outgoing partner's release enables co-partners to sue him or debtor in spite of release 121 3 607 Partner does not bind co-partners by confessed judgment 126 625 But must bind himself 126 7 630 And execution seizes firm stock 126 2 627 V. CONFESSED JUDGMENT. Nor revive debt by confessed judgment and bar Statute of Limitations 126 8 630 999 Index. page 9 630 6;6 I 658 I 6;8 Firm creditors may impeach judgment confessed to de- fraud them 126 Partner cannot guarantee debt of a third person 133 Guaranty will bind him but not co-partners 133 May create, but not assume a liability i33 Can assign, but not guarantee a judgment, though nec- essary to effect a sale 133 3 6;c) Partner's bond and warrant of attorney do not bind co- partners 121 4 608 Seal disregarded, if executory contract expressly author- ized 122 Vitiates contract, if only implied authority 122 Contra 122 Partner cannot appear for firm to bind co-partner 123 English allowed practice 123 In spite of Lord MANSFIELD'S decision 123 Ohio required attorneys to have client's authority 123 Also United States Supreme Court 123 New York and Pennsylvania rely on attorney as officer of court 123 Partner cannot submit firm claim to arbitration 124 Except when judgment limited to firm assets { '^f •- 126 Partner's power to borrow limited by extent of business.. 127 Partner in country store no authority to negotiate county bonds .-. 118 May mortgage firm stock for debt 127 May bind firm by commercial paper 128 V. COMMERCIAL PAPER. Authority to set-off. v. SET-OFF. To assign, v. ASSIGNMENT. Partner binds co-partner by admission 125 Co-partner cannot restrict co-partner's authority 137 If partner, restricted to cash, buys on credit, co-part- ner must return goods or pay for them 119 Partners may satisfy debt by redelivering goods, though f 137 firm insolvent 1 138 Partner's may restrict authority inter se 138 Contract inter se does not effect third persons 138 Unless notified 138 Insolvency does not revoke partner's authority 137 Partner has no authority from co-partner to buy out third 118 1000 I 6og 2 610 3 610 6n 611 I 612 I, a 612 l,b 612 1,C,I J 613 615 I 6i6 7 630 631 4 596 2 632 633 618 683 ? 599 6 • 685 ? 686 685 2 686 3 686 I 684 4 506 Index. § n. page Attorneys mutually delegate authority 137 5 685 Partner may rent premises for business 137 4 68; Partners may ratify co-partner's act in excess of author- ity 139 687 V. RATIFICATION. If scope of business enlarged, all must consent J 24 g 104 •■ 139 3 (X)2 Partner may dispose of his share I '^5 ''^^ I 176 797 If disposal absolute dissolution follows 17; 794 Not if qualified, e. g. assignment of a portion, mortgage orpledge 175 2 795 Cannot assign his share in a particular firm transaction.. 175 4 795 Partner sells his share in firm land subject to co-partner's equity 116 20 ■ 583 Partner may sell his share pending account and receiver- ship 176 3 799 Partner's authority to liquidate, v. LIQUIDATION. In mining partnership defined by exigencies of business... 15 4 '73 Partner may add " & Co." to his name for firm designa- tion 44 8 180 PREFERENCE. Of firm creditors explained by joint tenancy in 537 Assignment with preference, v. ASSIGNMENT. PRICE. Tile to land results from payment of 116 7 580 At the Civil Law stood for the merchandise in 538 PRINCIPAL. Undisclosed, in joint venture dormant partner 54 i 219 PRINCIPAL AND AGENT. ■». AGENCY. PROBATE COURT v. ORPHANS' COURT. PROCEDURE. Firm not recognized at law 76 i 337 ( 76 337 Partners the only parties \ ■' '^ (. 2 340 California, Iowa, Nebraska and Connecticut make firm a party 76 i 338 But statutory does not supercede Common Law process. 76 i 338 lOCI Index. § n. page Judgment against firm limited to firm assets in first in- stance 76 I 339 Extended to partners unless personal defence 77 i 354 Each partner represents firm 76 4 341 Sues for all 10; 11 484 Without assignment ; though contra 76 3 340 Legal excuses at Common Law for non-joinder; infancy, out of jurisdiction, discharge in insolvency, bank- ruptcy or death 84 I 374 Subsequent joinder, if within jurisdiction 84 2 374 If sued abroad separate estate not available 84 373 Contract in trustees' name justifies them In suing 76 6 341 Or to sue and be sued in company name 76 7 342 If infant partner joined as plaintiff might be charged by certificate of set-off 76 342 Contra 76 9 342 Cannot be defendant 76 8 342 Nominal partner held out with co-partners' concurrence ( 6g 22 309 co-plaintiff <■ 7610 343 As surviving partner 76 12 345 By Code must join as party in interest 76 14 346 Dormant sued with ostensible partner 76 11 345 Dormant or unknown partner need not be joined 7613 345 Common Law released him if not joined 85 2,3 377 f 76 344 In England non-joinder an election ; contra i 14 346 t- 77 3 358 Special partner co-plaintiff through interest, but prohibited from acting in business 76 15 346 New York makes trading under fictitious name misde- meanor 76 16 347 Courts have repealed enactment 76 17 347 In California certificate must precede suit 76 18 349 Ex:ept for tort 76 18 348 Firm name unnecessary 76 24 351 Trading in individual name. ■&. NAME. Common Law rejected Civil Law process 77 352 Which enforces in contract concurrent, cumulative and successive remedies as Common Law does in tort. 77 352 English Judicial Orders tried to introduce Civil Law 77 2 356 But construction vitiated It and retained Common Law f 77 352 formula of joint contract I- 2 357 I0C2 Index. Judgment merged cause of action 77 Judgment against hiusband releases wife and her separate estate 77 Courts did not remodel Common Law procedure 80 Lord Mansfield, based process on aggregate of con- tracts 80 Alabama, Colorado, Iowa and Kansas enforce the sev- eral contrats in joint contract 80 Common Law process frustrated intention of partners 81 Made judgment against partner extinguish claim against f 81 co-partner '■ Partner, confessing judgment barred suit against co- partner 81 Attempt and failure to effect service on co-partner did not prevent merger 81 Or kept from knowing of co-partner 84 New action brought would accrue on discovery of dor- mant partner and first would not bar second 84 Pennsylvania statute prevented judgment in joint action f 82 from merging claim •■ 83 Rhode Island, North Carolina, South Carolina, Iowa and Michigan also prevented merger 82 Efiect of judgment decided by law of forum | '* Claim formerly joint and several in Equity 85 Now Equity follows the law 85 Death released deceased's estate; survivor alone liable... | Equity charged deceased's estate, if legal remedies ex- f 86 hausted "■ Joint action lies against surviving and executor of de- f 86 ceased partner *■ 88 Contra , { ^^ n. page 3 357 3 358 363 I 364 2 364 365 36; I 366 2 366 4 367 372 I 374 368 370 I 368 373 4 375 376 2 377 " 377 380 378 4-6 379 6 379 6 384 I 378 3 381 87 Plaintiff, it was said, could not join executors even for conformity 87 2 381 Their joinder, as superfluous would not disqualify sur- viving partner 87 {88 Practice anticipated statute 88 1003 3 381 383 5,6 384 6 384 Index. § n. page Surviving partner confessing judgment released deceased partner's estate 87 i 380 Pennsylvania prevents partner's death from extinguish- ing claim 88 382 Gives direct remedy against his estate 88 2 362 Not Equity but legal right 88 3 383 If partner dies pending suit, it proceeds to judgment and execution ; death suggested and executors substi- tuted 88 383 Rhode Island, Mississippi, New Jersey, Tennessee, Ver- mont, Maine, Minnesota, Wisconsin, Kansas and Maryland charge deceased partner's estate 88 7 385 Direct remedy in England 88 8 386 Partner's death after judgment released his estate ' -I "^ ^ '^ ». 1,2 388 Now charges his executors in Pennsylvania 89 387 Minnesota, Wisconsin, Kentucky, Michigan and Mary- land 89 4 388 Procedure adopted to several liabilities on joint contract... 90 389 Release of partner limited to his quota | ^ Compromise with partner does not release co-partner; Pennsylvania, Kansas, Michigan, California, Min- nesota, Mississippi, New Jersey, Ohio, Rhode Isl- and, South Carolina, Vermont and Virginia 90 4 391 Distinction between joint and joint and several contracts obliterated gi 392 V. BUSINESS CONTRACTS. In England judgment and execution against partner no longer merges claim against co-partner 91 8 398 C. J. Marshall enforced the principle advanced by Lord MANSFIELD , 93 401 Modern procedure admits several causes of action 94 402 V. JUDGMENT. Partner not served not interested in suit 95 4 407 Suit against partners joint at their option 96 409 Notat plaintiff's option 96 ; 410 Procedure bars partner from suing his firm or vice versa... 164 759 ■V. LITIGATION. Partners cannot be both plaintiffs and defendants in same action 16; 2 762 1.C04 390 391 Index. Unless independent party And execution limited to joint assets Promissor cannot sue co-promissors unless contracts are separate Remedy in Equity Equitable redress not taken away by legal procedure Equities of each partner must be worked out Common Law did not recognize capacity apart from in- dividual Acquired by joint estate Common member of different firms has distinct capacities Identical partners trading at different places under differ- ent name a single firm Bankers' general lien covers assets in either place ■o. BANKRUPTCY. PROCESS. Joint writ controlled to enforce rights of partnership as distinct from other joint creditors No distinct joint writ apart from partnership writ PROFESSIONAL REPUTATION. Net part of good will PROFITS. Sharing profits, without ownership of stock shows agent not partner By non-owner en participation of Civil Law No undisclosed principal or dormant partner ' Share, in default of agreement fixed by jury Presumption of fact, not of law ■ i n. page 165 5 762 165 6 763 8 764 165 5 762 165 3 762 166 765 I, a 766 166 1,3 766 167 767 168 770 102 I 443 168 771 168 I 774 168 2 774 168 3 774 I 443 l,c 445 I,* 444 214 \,u 896 Owner sharing profits a partner.. Profits, as increment, disclose proprietor.. And amount of his contribution 27 112 51 203 ;i a 204 36 139 5 141 36 140 5 141 51 203 3 207 54 216 I 220 52 209 56 228 100; Index. i n. pgae With advances make partner 52 211 Result of ownership; title separate after joint title ended.. 53 213 Sharing during partnership an indulgence, enforceable only by dissolution 53 213 Profits not creditors' fund, but amount left after creditors paid 5; 224 Have no independent status, but are merged in the con- tribution 55 223 "Profits" relative term, limited to partners 55 224 Property connects profits with contribution 57 229 Trading identifies proprietors through profits 57 231 Profits represent property not only in partnership, but in law generally 57 4 235 Sharing in primary sense means as co-owners 58 237 In secondary sense by non-owner, e. g., merchant prince f 58 237 and poor missionary >■ 3 241 Inference of ownership from sharing profits 58 238 Misuse of word vitiated test 58 238 Profits in any form, e. g., rate, sum in instalments, annu- ity, royalty or rent 58 I 239 Law preserved by exceptions, which classified non-owner 59 242 Sum equal to profits describes non-proprietor 60 251 Distinction no protection if cover for profits 60 2 253 Sharing gross profits not partnership 62 255 ■V. GROSS PROFITS. Guaranty of profits consistent with partnership 35 2 138 PROMISE. Of signature to renewal binds firm 128 3 634 To become a partner, v. HOLDING OUT. PROPERTY. Partnership a property relation Intro. 2 Contra, lender with the rights of property Intro. * i If original loan execution not exertion of property right, but enforcement of claim Intro. * 5 Property measures partner's capacity ( '"'™- l 99 416 Explains marshalling and justifies firm creditors' prefer- f Intro. 7 ence I 99 417 Sufficient without management Intro. 8 Charged owner, though Law Merchant limited liability to Commenda 3 35 1006 Index. I n. page Feudal system founded on property ; and individual only / 3 36 an incident 1 106 484 Property at Common Law partook of bailment 4 37 Partner must be a proprietor in order to possess power to sell— 4 37 Property basis of partnership and partners proprietors 51 203 At Civil Law no undisclosed principal or dormant part- ner. Contractor alone bound 51 a 204 Proprietors sharing profits are partners | 5i 2 206 •- 3 207 If business does not require ownership, exertion of func- / 51 203 tion equal to proprietorship 1 4 208 Several titles revert at dissolution 52 213 Proving ownership in trade establishes partnership 54 216 Joint interest in stock of business 54 5 222 Property links contribution and profits 57 229 Proprietors trading together are identified in interest | 57 231 1. 4 233 If property ignored intention the only test / 57 3 232 L 6 233 Basis for classifying profit sharing ( 5° 237 •- 59 242 V. PROFITS. Firm title mutual restriction 97 412 Joint tenancy connects communal with individual title.... 98 414 Adapted to trade 99 416 Which added power to dispose of joint property 98 41; Right of survivorship recognized A. D. 1365 99 i 417 Legal but not beneficial 99 2 418 Law rejected tenancy in common, which would let sepa- r ico 419 rate, creditors share partner's purpart with firm \ 1,2 424 creditors ^ 106 484 Law recognized joint tenancy ; neither partner can charge f "^° 4i9 except for firm 1 4 47 <■ 105 472 ADLER says Civil Law subjected execution to account... 100 3 426 Joint owners' title runs through the stock 100 7 428 Title continues on co-partner's death, no assignment needed 100 8 428 Contra 12; 618 Separate execution subject to account 100 g 428 Does not seize specific articles 100 9,& 429 1007 Index. i n. page Partner's share ascertained in Equity before sale iqo g,rf 429 Sale discharges liens on title 100 10 429 Sheriff sells only partner's interest ico 11 430 Partners' fraud binds them, but not their creditors 100 11 430 Owner cannot withdraw property from individual execu- f '°^ '*^, tion ; :. 7 446 *■ 103 I 455 Laband makes it a pledge to firm creditors 102 438 ADLER denies any legal basis to joint estate 102 7 446 Acknowledges its necessity J 102 439 Judge Gibson's notion a tenancy in common 103 449 Would not be two classes of creditors but a single class and pro rata distribution among all 103 449 Partnership is a status, based on joint estate 103 448 Upon insolvency property of firm belongs to its creditors. 108 498 Partner's equity protects separate estate 109 508 Partner's sale of his share subject to firm creditor's right. 109 i 520 Joint estate exclusive fund of firm creditors 112 544 Property, e. g., two funds basis of intervention by Equity 112 54; Nexus of partnership i;5 739 Recognized at German Law in set-off 134 8 669 PROPRIETOR. V. PROPERTY. PROTECTION, MUTUAL, v. GAIN. PURCHASER. For value prevents pursuit of joint funds 40 154 Of partner's share entitled to account: not tenant in com- f '°° '^'1 ^^^ ^10; 5,6 480 mon ] I <■ 106 4,5 489 His title subject to firm's rights 114 8 567 PUNTSCHART, Dr. Contract indivisible at Civil Law 81 6 397 QU^DRIGyi. Co-owners make up a team for sale; Civil Law partner- ship in the price 67 281 QUALIFICATION for incorporator, v. CORPORA- TION. RACE-HORSE. Co-owners of , not partners 67 281 1008 Index. ? n. page RATIFICATION. Act must be done in name of the principal i3g 687 Hence incoming partner could not ratify 148 719 Firm may ratify partner's act in excess of his authority... 139 1,4 691 Makes ratifier party to the contract 139 688 All partners must join to ratify act beyond scope of busi- ness 139 3 692 Ratification by acts or conduct 139 3 692 By parol | '^9 5,« 693 •- 8 694 By presence and assent 139 6 693 Or by subsequent assent 139 6 694 Infant must disaffirm at majority or ratifies previous acts 140 69; V. MARRIED WOMAN. REASONS for dissolution, v. DISSOLUTION. RECEIVER. Appointed only if cause to displace partner, e. g., bad f '°' ' ^^'^ faith, intention to break up business or insolvency 1 ' '* ^'* '■2,3 825 Injunction by co-owner to prevent waste of rents 184 4 825 Court may compel disagreeing partners to bid for stock and good will 184 5 826 Partner's vendee less right than partner to receiver 18; 2 826 A matter of course against him 185 i 826 Laches deprives partner of right to receiver 186 827 Soliciting trade from, a contempt 187 4 830 Liquidating partner not displaced unless necessity for re- ceiver 194 842 In mining partnership receiver only if partner prevents business i5 3 72 .. MINING PARTNERSHIP. RECEIVERSHIP. Partner's share vendible during 178 3 799 RECORD-SYSTEM of Pennsylvania, v. LAND. RECORD TITLE. In firm only bar to judgment against partner 115 3 57i 573 ,a 588 1009 Settles whether land joint or separate |J|^ |^^ Index. i n. page Protects not only judgment, but general creditors of title holder 117 584 Title cannot be shifted to their prejudice 117 3 59° Title vests in, if directly conveyed to firm \ 2 ^ Z ■^ ■' 1. 116 587 V. LAND. REDFIELD, Judge. Firm creditors enforce partner's equity log 8,1; 528 RELATION. Aspect of partnership at Roman Law domestic relation between themselves i 31 Utmost good faith 155 739 Thought a contract relation 106 485 But a status loi 432 Agency a contract relation loi 433 RELEASE. Of partner does not release co-partner go 3,4 391 Common Law judgment released non-served partner gi 394 Partner's, without consideration void 121 2 606 Effect must depend not on deed but on act, e. g., existence and payment of debt 121 2 607 Contra I2i 2, a 607 Outgoing partner cannot release firm debtor 121 3 607 Creditors' contract to release outgoing partner lacks con- f 95 5 407 sideration 1 153 732 V. CHANGE OF PARTNERS, v. RETIRING PART- NER. RENAUD, Achilles. Civil Law made partner's contribution limit of his liability 3 35 By German Law contribution carries interest 32 127 Special partner taking no part in management exempted f 37 144 from unlimited liability I c 146 Civil Law gives creditors concurrent remedies against joint and separate estate 77 i,ft 3;; Partner must assign separate claim to firm for set-off 134 2 663 Defendant in firm suit cannot set-off partner's separate debt 134 8 66g Managing partner may set-off firm claim against individ- ual debt 134 II 671 In partner's suit debtor may set-off firm debt 134 12 672 joip Index. ? n. page REPRESENTATIONS of partnership, v. HOLDING OUT. REPUTATION. Will not establish partnership 6g V. HOLDING OUT. RESTRICTION. Though partner restricted to buying for cash co-partner charged, unless merchandise returned iig Partner's separate liability restricts co-partner to scope of business 120 Partners between themselves may restrict each other, f 138 which effects third persons with knowledge •• 138 Not binding on third persons | '^^ RETIRING PARTNER. V. CHANGE OP PARTNERS. Partner's release revoked authority of his appointee for liquidation igi Appointment of partner irrevocable igi Right goes with assets to continuing and indemnifying partner igo Has equity even against infant 151 Interest subject to firm creditors 151 Converts himself from a principal into a surity by notice in New York 153 Charged by contract made before, though performed after dissolution 150 Released by novation •. 150 Equity founded on his liability 151 Creditors' promise to release void g; V. RELEASE. RHODE ISLAND. Judgment no bar to suit against whom not entered 82 Deceased partner's estate liable for firm debts 88 RIBBENTROPP. Contract indivisible at Civil Law | ^' ROGERS, Prof. Henry Wade. Firm creditors excluded from separate estate for balance... m V. IMARSHALLING, jou 14-16 304 3 599 600 68; 1,3 686 685 2 686 I 838 3 838 I 837 I 72g 4 730 3 734 2 726 3 726 727 5 407 I 366 7 385 394 6 397 8 544 INDEX. i n. page ROMAN LAW PARTNERSHIP. Either in buying ; if joint purchase by contract i 32 Or in selling, though sellers not co-owners 67 281 A domestic contract between the parties i 31 Required the strictest confidence 2 33 Profits correlate with contribution < ^ '^"^ I ;6 228 Services capitalized to equal contribution 57 230 Reliance on promise to buy on joint account sufficient to create trust to perform 10 58 "My partner's partner, is not my partner" 68 286 Trust funds followed, but recovery limited to firm assets.. 41 158 ROTA. Property foundation of partnership < '' ^'^^ ROUSSEAU. Partnership not only for profits, but for any benefit 16 a,b 76 At Civil Law contracting party alone bound, no undis- closed principal or dormant partner 51 a,b 204 RULE OF CONVENIENCE. Substitute for equitable apportionment of two funds 107 If but a single fund legal right prevails 103 Each class of creditors takes its own funds 107 Inconsistent with partnership liability in SALE. Substitute for partnership.; 67 Cheese paid for milk in proportion to amount delivered... 67 Trees cultivated for share of crops 67 Partner's sale of his share a dissolution 175 Of portion, or a mortgage or pledge, leaves him control... ( ° •■175 On separate execution passes no title < '°^ Of co-partner's share barred his equity ; Judge SHARS- WOOD demonstrated the contrary 109 5 522 Partner's sale to co-partner, if insolvent, fraud on firm creditors log i,d 520 At Roman Law payment of price condition of 109 2 520 On execution, o EXECUTION. 1013 494 4 462 494 540 282 :o 283 9 282 794 287 2 795 515 I,c 520 INDEX. page SCHMIDT, Fred. Gus. Ad. Partnership in Middle Ages a family relation 2 i SCI. FA. V. PROCEDURE. SCOPE OF BUSINESS. To enlarge, requires consent of all partners ig3 3,3 V. POWERS. SCOTCH. Procedure like French 96 V. PROCEDURE. SEAL. Partner cannot bind co-partners by 121 No implied authority 122 2 Contra 122 3 Surplusage, if contract expressly authorized 122 i SECURITY. Partner's pledge of, for firm debt limited to debt secured and residue separate estate 112 2 Reverts to pledgor and his creditors 112 3 SHELBORNE, Lord. Taking judgment against partner unconscious release of co-partner 77 3 SEPARATE CREDITORS. Rank as joint if firm individual name 76 24 Paid with firm funds liable for price 114 11 V. MARSHALLING. SEPARATE ESTATE. •0. PROPERTY. Liable for firm debts 107 SERVICE. Basis of personal judgment | ^^ ^' •.. NON-SERVED PARTNER. 0. PROCEDURE. Partner's appearance for co-partner analogous to service.. 123 Accepting equal to adverse service in preventing merger.. 83 i SERVICES. f ^ Capitalized, if accepted as contribution < 54 •■ 57 1013 34 6g2 409 602 610 610 6og 546 547 358 351 568 495 357 611 611 371 37 217 230 66o 662 Index. ? n. page By later Roman view services capitalized to equal contri- bution 57 230 SHARING. Profits and losses. ■^. PROFITS, v. EVIDENCE. SET-OFF. Medium of Equity 134 660 Obstacles, if proceedings at Law 134 7,a 668 Do not prevail in Equity 134 7,6 668 In Pennsylvania of any liquidated claim < '^ Partner may set-off against firm debt a firm claim with- / 134 664 out co-partner's consent •• 4 665 Quaere DERNBURG, if partner is excluded from manage- ment; VON HAHN exclusion immaterial 134 4 665 Firm deposit set-off against note separate in form but dis- counted for firm 134 ;,& 666 Partner sued alone or with co-partner may set-off his sep- / 134 66i arate claim against firm debt l^ 667 Civil Law requires an assignment 134 2 663 Firm may set-off partner's claim with his consent J '34 ooi >. 3 663 Partner sued for firm debt may set-off co-partner's claim with his consent 134 673 If co-partners consent partner may set-off firm claim against his separate debt 134 670 RENAUD: consent only necessary, if he is excluded from management 134 11 671 Separate debtor can set-off firm debt 134 12 672 Separate debtor sued by administrator also surviving partner set-off firm debt c;6 i 4cg Partner's separate debt not set-off in suit on firm claim.... 134 7,8 668 German Code 134 8, a 669 Admits after dissolution 134 S,c 669 Surviving partner cannot set-off firm claim against his separate debt 134 16 673 At law he could do so 134 13 673 A breach of relation 134 14 673 Payment of partner's separate debt to bona fide holder of firm paper not set-off against purchaser of firm claim 171 5 784 Set-off between partners only in account 160 752 V. ACCOUNT. 1014 Index. n. page 4 911 913 914 3 916 3 91; 3 915 5 917 SETTLEMENT. Estops partner from an account 218 May anticipate account 220 Interpreted according principles of partnersliip |^^° Opened to mal