The law of partnership

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THE LAW

OF

PAETNEESHIP.

•I 1

BY

CLEMENT BATES,

Of the Cincinnati Bae,

Adthob of "Ohio Digest," "Pleadings, Parties and Forms undeb
THE Code," and "Limited Partnership."

YOL. I.

CHICAGO:

T. H. FLOOD AND OOMPAl^T.

1888.

Entered according to Act of Congress, in the year 1S88, by

CLEMENT BATES,
In the Office of the Librarian of Congress, at Washington.

DAVID ATWOOD,

FSINTEB AHD STEaEOTYPEB,
MADISON, WIS.

PREFACE.

This book is the outcome of labors undertaken (at first without
any idea of publication), and pursued for years in hours which
should have been devoted to leisure and rest from practice. Its
origin was in a desire to resurrect a quantity of law believed to
exist, but not generally accessible, either because inclosed in cases
not classified with partnership law, or disguised in the generalities
of a harmless looking syllabus or ind^px. To find this, involved
examining each volume of reports, one by one, and mating abstracts
of the points, facts and dicta of every case. This was done for a
long time as a pleasant study without definite design of exhausting
the subject, but as the collection expanded from hundreds into
thousands, and the germinative principles were seen to grow into
a vast and intricate forest, the increasing fascinations of the pursuit
converted the recreation into a task of great severity; and when
the collection of raw material, nearly three times the size of this
book, appeared to be too useful a weapon to be confined to the
author's miscellaneous practice, the desire to complete, condense
and organize it for the general use of the profession followed. Ac-
cordingly, no one of the nearly eleven thousand partnership cases
in the common law, whether English, Irish or American, includ-
ing Canadian and New Brunswick, has been consciously overlooked
or omitted.

The construction of the book (also a long and not yet satisfactory
effort) is based on an ideal, explained in the preface to the author's
little work on Limited Partnership, placing the more fundamental,
constant or ultimate principles in a comparatively prominent type,
and offering illustrative, subordinate, qualificative or exceptional
matter in a less conspicuous form in proportion to its value. This
treatment, differing from codification in explaining principles in-
stead of formulating rules, and to be carefully distinguished from
the method of several excellent books made in a codified form,
partakes of the same impossibility of perfection, and in so far as

iv PREFACE.

it tends to keep a high ideal before the reader's eye may expose
the author to criticism in proportion as his attempt falls short,
as it must, of the mark. It also discloses the vast disproportion
which the labor and thoughts of other lawyers in a law- book
bear to the author's own small original contribution. But its
compensations are in the service afforded by the mere attempt
as the fore-runner of something better, and in facilitating a more
rapid study of the law, a clearer separation or recognition of what
is fundamental, and a readier search for applicable authorities
which forms so large a part of modern practice, and to give which
in larger numbers a condensed rather than elaborate style has
been adopted in this book. The careful study of the cases has had
the result also of developing a not inconsiderable want of har-
mony in our American law, the exhibition of which may assist in
converging our jurisprudence into an increasing uniformity.

It would be invidious to mention the great writers whose works
mark the history of the law of partnership, further than to express
a keen appreciation of the great care and fidelity with which the
English decisions have been studied by them. The American law,
however, not only has several new topics, but in many respects
has developed along lines diverging from the English, and, in a
few respects, quite opposite; and the chief value, or at least greatest
pains taken in this book, has bfeen to emulate their industry in
the far vaster, though less orderly, field of our own country.

I desire, in closing, to express most grateful acknowledgments to
my friend, the learned and accomplished Librarian of the Cincinnati
Law Library, Mr. M. W. Myers, for his constant and often much-
needed encouragement in this laborious method of working out a
legal topic, and to hope that his faith in its usefulness may be
partially realized.

CLEMENT BATES.

CiM-ciN'srATi, January, 1888.

CONTENTS.

YOLUME I.
PAET I. NATURE AND FOEMATION.

CHAPTER I. PARTNERS AND PARTNERSHIP DEFINED.

Definition, 1.

Is a contract relation, 3.

Not created by implication

law, 3.
Defective corporations, 4r-7.
Firm becoming incorporated, 8,

Kinds of Partners and Partnek-

SHIP.

of Active and ostensible, 9.
Secret or dormant, 10.
Nominal, 11.

Kinds of partnerships, 12.
Universal partnerships, 13.
Mining partnership, 14.

CHAPTER II. TESTS OF A PARTNERSHIP.

Inter se and as to third persons, 15.
Earlier English law, 16.
Intention, 17.

Mutual agency a test of intention, 18.
Modern law — English, 19.
Independent contractors dividing

profits of a job, 20.
Loan on profits as interest ; annuity

creditor, SI.
Same with large powers of control,

23.
Influence of Cox v. Hickman in

America, 33.
Proximate tests of intention, 24.

I. Sharing Both Profits and Loss.

With a common stock, 36,

Same ; services, 37.

WJien one contributes whole capi-
tal, 28.

Sharing profit and loss, when not a
partnership, 39.

II. Sharing Profits, Nothing Be-
ing Said as to Losses.

WitM joint capital, 31.

Illustrations of true partnerships, 33.

Illustrations of partnership as to
third persons, 33.

Where one furnishes all the capi-
tal, 34.

Investments on joint account, 35.

Without co-ownership in the busi-
ness, 36.

Control or power of disposition as a
test, 37.

Contracts to manufacture in which
each is principal, 39.

Where profit is a joint fund, 40.

Services in procuring sales; 41.

Arrangements to collect a debt, 42.

Profits as compensation for services,
43.

Profits as rent, 45.

Profits as interest on loans, 47.

Vol. I. CONTENTS. Part I, Ch. V.

Executors and trustees as partners, though both furnish expenses

51. or outlays, 61.

Other representatives, 54. herding, 63.

Annuitants, 55. tenants in common dividing re-

turns, 63.

III. Sharing Profits With Stipu- joj^t enterprise not for profit, 64.
LATION Against Losses, 56. pooling arrangements, 66.

Sharing losses only, 57. common fund, 67.

Cheese factory, 68.

IV. Sharing Gross Receipts, 58. patents 69.

Working or letting on shares, 59. Ship-owners, 70.
brokers, 60. Joint cargo, 71.

CHAPTER III. JOINT STOCK COMPANIES, CLUBS AND GRANGES.

Joint stock companies, 73. what constitutes membership,

liability, and how enforced, 74.

73. Clubs, 75.

Granges and co-operative stores, 76.

CHAPTER IV. INCHOATE PARTNERSHIPS.

Executory agreement not a partner- Oral conditions, 85.

ship, 78. Waiving conditions by launching,
intention to form a partnership, 86.

79. payment for future partner-
Purchases in contemplation of a ship, 87.

partnership, 80. Options to become a partner, 88.

What are not in fiituro, 81. Promoters of corporations, 89.
Conditions precedent, 83.

CHAPTER V. BY HOLDING OUT.

In general, 90. Language amounting to a holding

Plaintiff's knowledge necessary, 91. out, 101.

Holding out to the world is erro- In tort, 103.

neous, 92. Confers no rights inter se, 103.

criticism and suggestion, 93. Strangers, how affected, 104.

probable explanation of the Creditors, how affected; reputed

cases, 94. ownership, 105.

Defendant's knowledge, 95. Individual using a firm name, 106.

Acquiescence, 96. Two firms using the same name, 107.

Prior unknown acts of holding out. Deceptive similarity of names, 108.

98. Actions by and against nominal part-

What constitutes a holding out, 99. ners, 109.,

retaining the old name, 100.

vi

Vol. L

CONTENTS,

Paet I, Ch. VIL

CHAPTER VL ILLEGAL PARTNERSHIPS.

As to persons, 110.

in a public office, 111.

As to occupations, 113.

bidders on public contracts,

113.

Contracts void by law, 114,

Illegal ventures of a legal partner-
ship, 115.

Title to the assets, 116.

Presumption against illegality, 117.

Judicial accounting of an illegal

partnership, 118.
,1. Refused between wrong-doers, 119.

part of the business legal and

part not, 181.
Motives, 123.

II. Where the illegality is wholly a
thing of the past, 133,

III, When not wholly past, 124,
Brooks V. Martin, 135.
Explanations of Brooks v, Martin,

136.

Cases enforcing payment of bal-
ances, 187,

Cases denying payment, 188,

Neglect to register, 139.

CHAPTER VIL PERSONS COMPOSING THE FIRM,

Persons who may be partners, 130.

Aliens, 131,

Lunatics, 133.

Corporation generally cannot be a

partner, 133.
may receive capacity, 134,

Maeeied Women.
In general, 135,
Where the husband is not in the

firm, 136,
Property in such cases, 137.
Husband deemed the debtor, when,

138,
As a partner of her husband, 139,
Effect on property, 140,
Wife's claim against husband's firm,

141,

Infants.

Voidable, not void, 143.
Rights and powers inter se, 143,
Accounting and payment of losses,

144,
Ratification, 145,

contracts after majority, 146,

Creditors' rights in the assets, 147.
Actions by and against, 148,
Judgment a partnership debt, 149,
Firm as partner in another firm, 150.

Dormant Paetnee.

Who is a, 151,

the firm name not decisive, 153.

Need not abstain from participation,
153,

Powers of dormant partner, 154.

Property deemed to belong to osten-
sible partner, 155.

Liability of dormant partner, 156.

Rationale of his liability, 157.

DELBOT0S PERSONAKUM.

In general, 158.

Cannot make the firm partner in

other concerns, 159.
Consent in advance, 160.
Ratification and acquiescence, 161.
EflEect inter se of sale of share, 163.
Partnerships without delectus per-

sonarum, 163.

Sub-Paetnbrships.

Sub-partner not a member of priilci-

' pal firm inter se, 165.

Nor has he a right to accounting, .

167.
Nor is he a partner as to creditors,

168,
Rights of sub-partners inter se, 169,

Vol. L contents. Part II, Ch. I.

CHAPTER VIIL FIRM AS AN ENTITY.

Opposing conceptions of a firm, 170.
Taxation of a firm, 175.
Branch business, 177.

Licenses, 178.

Filing of chattel mortgages, 179.

CHAPTER IX. SHARES OR INTEREST OF EACH.

Nature of, 180. '
Presumed equality of, 181.
Mortgage or sale of a share, 183.
Subject to subsequent firm debts, 185.

and subsequent conveyances,

186.

Assignee's rights, 187.

Mortgage of share to a partner,

188.
Whether sale of shares separately ia

a sale of the whole, 189.

CHAPTER X. THE FIRM NAME.

Rationale of, 191.

Name of one as a firm name, 193.

Changing or adding another name,

193.
Substituting firm for individual

names, and viceversa, 194.
One firm with several names, 195.
Two firms "with one name, 196.
Form of signing, 197.
Illegal names, 198.

PowEE OF A Partner in Relation
TO THE Name.

Cannot bind the firm by wrong
name, 199.

Individual names instead of firm

name, 200.
If no name has been adopted, 201.
Immaterial deviation from true

name, 202.
Other name by assent, 203.
Particular authority executed in

wrong name, 204.
Credit to firm under wrong name,

205.
Where the partners are plaintiffs,

306.

PAET II. CONDUCT OF THE BUSINESS.

CHAPTER I. ARTICLES OF PARTNERSHIP, 207.

Statute of frauds, 208. ,

Oral evidence, 310.

Altered by conduct and construed by

practice, 211.
Provisions not acted on, 313.

unanimous assent necessary,

. 213r
suggested restriction of above

principle, 214.
Ambiguities construed by firm's

practice, 315.

Continue in force if firm continues
after term, 316.

So of a new firm, 317.

Clauses which do not continue, 318.

Rights of third persons in, 219.

Firm name, 230.

Time partnership begins, 231.

Duration, 332.

Business to be stated, 233.

Fidelity to the firm; competing; com-
pensation, 334.

Vol. I.

CONTENTS.

Paet II, Ch. III.

books and accounts, 225.

Capital, 236.
Real estate, 227.
Division of profits, 328.
Meaning of profits, 239.
Net profits, 330.
Losses, 231.

Restrictions on powers, 283.
Arbitration clause, 333.

power of arbitrators, 334.

Allowances for subsistence, 385.
Interest, 236.
Expenses, 237.
Dissolution, 288.

Covenant to indemnify outgoing
partner, 239.

Outgoing partner not to compete,
340.

Expulsion of a partner, 241.

To be exercised bona fide, 242.

Right to return or sell a share, 243.

Valuation of share of outgoing part-
ner, 244.

if last valuation is imperfect,

345.

representatives and assignees

bound, 346.

Specific performance, 347.

Good will, 348.

Continuance after death ; represent-
atives; annuitants, 249.

Penalty, 350.

CHAPTER II. CAPITAL AND PROPERTY.

What is capital, 351.
Other than money, 258.
Contribution should be free of liens

and charges, 254.
Right to increase it, 255.
Is not individual property, 256.
Partnership in profits alone, 357.
When not, 258. .
Purchases with profits, 361.
Purchase by one may be advances,

362.
Incoming partners, 263, 264.
Acquiredwith joint funds, 365.

Individual property acquired at
firm's expense, 366.

Claims outside of scope, 367.

Claims for damages, 368.

Personal benefit, 369.

Insurance cases, 270.

taking in a partner, 371.

- — retirement of one of several
partners, 273.

retirement of one of two part-
ners, 273.

Possession, 374.

No crime against possession, 277.

Exclusive right of possession, 378.

CHAPTER HI. REAL ESTATE.

In general, 379.

When it is part of the joint stock, 280.

procured with partnership

funds, 381;
improvements out of joint funds,

383.
— -taken for debt, 383.
Books show intention, 284.
Use of funds not conclusive, 385.
Use of property not conclusive, 386.
Co-owners going into business, 387,

Incoming partners, 388.
Pennsylvania rule, 389.
Consequences of the conversion, 390.
Sales and incumbrances of share,

391.
The legal title; conveyances of it,

292.

same in case of death, 393.

surviving partner aided by

equity, 394.
Notice to third persons, 395.

Vol. I. CONTENTS. Pakt II, Ch. VI.

Conveyances in a firm name, 296. Power of individual partners to bind
Surplus is real estate in this country, firm, 299.

297. Surviving partner, 300.

Out and out conversion into person- Statute of frauds, 301.

alty, 298. Partnership to trade in lands, 303.

CHAPTER IV. DUTY TO OBSERVE GOOD FAITH.

In general, 303. Buying out or selling to a copartner,

in all stages, 304. 308.

Buying interests in firm's property. Buying at execution sale, 311.

805. Abandonment or neglect by com-

Competing with the firm, 306. plaining partner, 312.

Commissions from dealers, 307. Duty to keep accounts, 313.

Access to books, 314.

CHAPTER V. IMPLIED POWERS OF EACH.

In general, 315. Restrictions in articles, 333.

Nature ot the business, 316. unless known, 333.

same as against third persons, proof of knowledge, 334,

317. Revocation of power by dissent of

Usages of similar firms, 318. one, 325.

Usages of the same firm, 319. limit on the right to dissent, 336.

Necessity as an element of scope. What are trading partnerships, .327.

330. Same, 328.

Incidental benefit, 331. Non-trading firms, 329.

CHAPTER VI. PARTICULAR POWERS BEFORE DISSOLUTION.

Admissions, 331-333.

Accounts, 330. Subsequent misappropriation distin-
guished, 348.
Signing firm name as security, 349.
As Agents of Others, 3J3. real transaction considered, 351.

A T7I „ „„„„„ „„ ,.,„„ Bona fide holder protected, 353.

Agents and Employees of the •', . , „ , , ' „.„

Firm 334 '® ^ bona fide holder, 353.

negligent buyer of paper, 354.

Arbitration, 336. hvo\.eti^ not agent of buyer, 355.

Assign for Creditors. usury, 356.

In general, 338. renewals, 357.

Ratification, 339. N°"'=« ''^°'i^ ^°™ °^ P^P^^. 358-

Absence as authorization, 340. Member of several firms, 359.

illustrations, 360.

Bills and Notes. Burden of proof; presumed given

In trading firms, 341. for firm, 361.

In non-trading firms, 343. shifting of this presumption.

Joint and several, 346. . 363.

For separate debt, 347. Ratification, 363.

Vol. L

CONTENTS.

Paet II, Ch. VI.

by habit or usage, 364.

by acknowledgment, 365.

by acting under the unauthor-
ized act, 866.

by silence, 367.

Prior authority deviated from, 368.
declarations, 369.

BoEEOWiNG Power.

In trading firms, 370.
Non-trading firm, 371.
Form of borrowing, 373.

Buying.

In trading firms, 873.

non-trading firms, 374.

delivery to one, 375.

varying the contract, 376.

.Confessions of Judgments.
No such power, and why, 377.
Assent and ratification, 378.
VaUd against the partner in fault,

379.
Remedy of non-assenting partner,

380.

Debts.
Power to collect and receipt for

debts due to, 381.

payments not in money, 383.

releases, 883.

Debts due /rom the firm, 384.
Release of one partner by creditor,

385.
reserving claim against rest,

386.

statutes, 387.

inter se, 388.

Notice to One.

Is notice to all, 889.

So of knowledge of one, 390.

Notice before the partnership is

formed, 391.
On purchases of property, 393.
Defenses to mercantile paper, 393.
Knowledge obtained in other capac-
, ities, 394.

As affected by scope of business, 895.
As affected by duty and opportunity

to communicate, 396.
Protesting notes, etc.; demand on

one, 397.
notice to one of indorsing firm,

398. ,

dispensed with, 399.

partner common to two firms,

400.

Personal Peopeett.

Power to sell, 401.

Sales with warranty, 403.

Power to sell whole, 403.

Power to pledge or mortgage, 406.

Execution of chattel mortgage, 407.

To alter contracts, 408.

To insure or protect property, 409.

To pay separate debts with assets,

410.
Trading out debts,, 411.
Appropriation of payments, 413.

Sealed Insteuments. '

In general, 413.
Release under seal, 415.
Parol authority or assent, 416.
Assent to conveyance of real estate,

417.
Unnecessary seal as surplusage, 418.
Single seal for all, 419.
Merger, 430.

Executing partner bound, 431.
Remedy in equity. 433.
Rights of surety on the instrument,

433.

Ratification and Authoeity.

In general, 434.

Creditor partner's aiithority, 435.

Knowledge necessary, 436.

Prior acts, 437.

Failure to dissent, 438.

Acting under unauthorized contract,

439.
Practice, 430.

Vol. I. CONTENTS. Paet II, Ch. X

CHAPTER VII, POWERS OF A MAJORITY.

As to third persons, 431. In fundamental matters, 434.
Inter se, 433.

CHAPTER VIII. CONTRACTS WITH ONE PARTNER,

lu general, 436. Firm not liable by getting benefit,

Simple contracts other than mercan- 446.

tile paper, 437. When firm is trusted and when one

Sealed instruments in name of one only, 447.

partner, 438. Evidence charging the firm, 448.

Negotiable instruments in name of admissions in books and letters,

one partner, 439. 449.

Liability of firm on original consid- contemporaneous declarations,

eration when not bound by paper, 450.

'440. ' The individual partner and his sure

Bills on or to account of firm, 441. ties, 451.

Renewal of firm debt by individual Note signed by all individually, 452,

note, 442. — ^ may be shown to be partner

Firm in the name of one partner, ship note, 453.

443. - — - election to treat it as separata

Dormant and undisclosed partner- .or joint, 453a.

ships, 445.

CHAPTER IX. DEGREE OF LIABILITY ON CONTRACTS.

Contracts are joint and not joint and In solido, 457.

several, 454. Joint stools companies, 458.

Inter se, 455. Limited by contract, 459.

Contra by statute, 456. Limited partnerships, 460.

CHAPTER X. LIABILITY FOR TORTS.

In general, 461. Money or Property Wrongfully

Negligence of servants, 463. Obtained by One for Benefit

Scope of authority, 464. OF Firm, 478-480.

in collecting debts, 465.

_ wilful torts and violation of Tk^st Funds Used for Firm.

statutes, 467. Innocent partners not liable, 481,

Ratification, 469. Incoming partners, 483.

Nominal partner, 470. Participants all liable, 483.

Liability is joint and several, 471. Liability is joint and several, 484.

Frauds and Misrepresentations.

Accountability is for profits or in-
terest, 485.

Deceit in regard to their own prop- Following the fund, 486.

erty, 472. Repayment to the trustee, 437.

Other frauds, 473.

Misapplications of Money oh
Property, 474r477.

xii

Crimes, 488.

^°^ I- CONTENTS. Paet II, Ch. XII.

CHAPTER XL PAYMENT, NOVATION AND MERGER.

Application of PAYMEains. note for debt assumed by new

In general, 489. ^'■■™' ^l^.

Where firm and one partner are ^^'^^^ °* creditor, 516.

creditors, 490. practice, 517.

Where firm and one partner are ^^^^S^ without incoming partner,

debtors, 491. ^1^-

Partnership money to be applied to °^*^ ^^'^ "^"^* ^ discharged, 531.

its debts, 493. -^ against sureties, 523.
if creditor has no notice of nat- ■^°*® °^ ^'^ ^ evidence of novation.

ure of fund, 494.

533.

individual money, 495. ^°^^ °* °°^ partner before dissolu-

If neither party specify appropria- *'°°' ^^'

tion, 496. ^°*® °* ostensible partner, 535.

Running account, 497. ^°*® ^^ ^^^ name after dissolution,

change in debtor firm, 498, ^^®*

change in creditor firm, 499. °* continuing partner who assumed

accounts not continuous, 500. , ^^^^b, 538.

Note of surviving partner, 539.

Novation^ Creditor and debtor becoming part-

In general, 503. ners, 580

Creditor must assent, 503. J ^"..1^ '"'^ extinguishes the
Consideration, 505. ' '
Original debtor still liable, 506.
incoming partner not liable for Ebtiking Paetnbk as Surety.

old debts, 507. Inter se, 532.
may adopt old debts, 510. ^ ^^ ^^^^^^^^ . ^^^^ ggg^

assumption shown by acts; American cases, 534.

estoppel, 511.

" entries on books of new firm, 513. Meegee

examples of agreements inter

se, 513. Judgment against one partner, 535.

fraud on the incoming partner. Where partners are jointly and sev-

514. erally liable, 537-^39.

CHAPTER XII. CONVERSION OF JOINT INTO SEPARATE
PROPERTY.

In general, 540. implied assent, 546.

Inchoate transfers inter se, 541, Delivery or change of possession,

Choses in action, 543. 547.

Taking funds without consent of all, sale by one partner to a third

544. person, 548.
Following the funds, 545.

Vol. II,

CONTENTS.

Paet III, Oh. n.

EETiEiNa' Partner's Equitable
Lien.

Fraudulent Contetances.

Sale between partners, 569.

Retiring partner has no lien, 550. authorities holding it valid, 560.

Continuing partner assuming debts, Dividing up the assets, 561.
ggj_ Authorities restricting the right to

Retention of lien by the contract, ^®ii' ^^^■
g52 Examples, 568.

Remedies in such cases, 654 Withdrawing funds if a gift is

fraudulent, 664.
Successive Firms. Paying a debt of one partner, 565.

Same, when a fraud on creditors.
In general, S55. 666.

Retirement of old without now part- Assumption of debt on moral con-

ners, 556. sideration, 567.

New partner and retirement of old, Important cases which rest on no
, 557. principle whatever, 568.

New partner, no old one retiring, Conveyances of separate property,
558. 569,

VOLUME II.
PAET III. DISSOLUTION.

CHAPTER I. CAUSES OF DISSOLUTION,

Any change of membership, 670.
Partnership at will, 571.
Partnership for indefinite term, 572.
Notice to dissolve, 574.
Evidence of dissolution, 575.
— ^- change of name, 576.
Eight to dissolve for a term, 577.
Damages for premature dissolution,

578.
Dissolution for cause, 579.
Death, 580.
Insanity, 581.
War, 582.

Bankruptcy or insolvency, 583.

Execution, 584.

Alienation of interest of one, 585.

Sale of part of interest, 686,

Sale of the entire effects, 587.

Marriage, 688.

Abandonment, 589, 590.

Misconduct, 591.

Hopelessness of success, 593.

Dissensions, 594,

Deception, 595.

Completion of enterprise, 596.

Date of dissolution, 597.

CHAPTER IL CONTINUANCE AFTER DEATH.

By will or contract, 598.

Agreement must be express, 599.

To what extent the estate is bound,

600.

xiv

Powers of executor, 604,
Subsequent accretions, 605.

Vol. II.

CONTENTS.

Part III, Ch. VI.

CHAPTER III. NOTICE OP DISSOLUTION.

Necessity of, 606.
Dormant partner, 608.
DIssblution by operation of law, 610.
Notice necessary in all other cases,

611.
Actual notice to former dealer, 613.

who is a former dealer, 613.

Mailing is not actual notice, 616.
Subscriber of paper, 617.
Notice to non-dealers, 618.
Substance of the publication, 619.

by whom, 620.

Knowledge equivalent to notice, 681.
Notoriety as a substitute for notice,

633.
Notice by change of naftie, 633.
Long interval of time or space, 634
To whom to give notice, 635.
On what contracts, 636.
Pleading and evidence, 637.
Holding out after, 638,

CHAPTER IV. CONTRACTS OF DISSOLUTION.

Debts due By or from retiring part-
ner extinguislied, 639.
Sale to third persons, 681.
Debts not on the books, 632.
What passes by a sale of a share, 633.

Assumption of Debts by Continu-
I^fG Paetnebs.

By implication, 634.
By contract or bond, 635.
Covenant to pay, 636.
danger of obligee's misappro-
priating recovery, 637.

Covenant to release or be solely
responsible, 638.

Covenant to indemnify or hold
harmless, 639.

Covenant to assume, 640.

Covenant to apply assets, 641.

Examples of constructions of cove-
■ nants, 643.

What debts are included, 643. '

LiEfbilities concealed by retiring part-
ner, 644.

Incoming partners, 645..

Existing claims on the properJiy;, 646.

Statute of frauds, 647.

CHAPTER V. EFFECT ON SURETIES, 648.'.

Sureties to a firm, 649.

when a partner is added, 650.

Sureties for a firm, 653.

Loss of a member, 653.,.

addition of a partner,! 654.'

Application of payments, 656.

CHAPTER VI. GOOD WILL, 657,

Does not survive, 658. Seller's solicitation of old customersi,

Incident to locality oftener than to 666,

stock, 659. limitation of this doctrine, 667.

Court will protect it to effect sale. Professional partnerships, 668.

Valuation of good will, 661.

in case of misappropriation, 663.

Sale of good will, 663.
Seller can resume business, 664.
So can surviving partner, 665, ._ " "
B :

Right to Fiem Name after Btsso-

LUTION, 669.
Buyer's right to the old name, 670.
Retiring partner's name not to be
used, 671.

Vol. II.

CONTENTS.

Paet m, Ch. VIII.

Continuing partner's right to old Ageeements Not to Competb.

name, 673. Reasonableness of, 676.

Surviving partner's right to use g.^^^^^g^ 677.

name. 673. Injunction, 678.

Trade name, 674, "*

Trade mark, 675.

CHAPTER VII. IMPLIED POWERS AFTER DISSOLUTION.

iMPEiED Powers after Dissolu-
tion.

In general, 679.

Power to pay debts, 680.

Power to collect and receipt for

debts, 681.
Power not revocable by copartners,

682.
— — where one partner becomes

owner, 683.
Nature of title not changed, 685.
Power to dispose of, property, 686.
to assign for creditors or confess

judgment, 688.
Power to assign negotiable paper,690.
Paper made before and issued after

dissolution, 691.

Expenses and contracts in windin;;

up, 693.
Cannot borrow even to pay debts,

693.
Nor sign negotiable paper, 694.
Liquidating partner, 695.
Power to waive demand, 696.
—^ demand on one, 697.
Ratification or authoi-ity, 698.
Admissions after dissolution, 699.
Statute of limitations, 703.

revive an extinct debt, 703.

to prolong time, 704.

Contra, 705.

Unfulfilled contracts, 707.

Distinctions, 708.

time contracts, 709.

Surviving partners, 711.

CHAPTER VIII. SURVIVING PARTNERS

In general, 713.

Who is a;' dissolution before death,
713.

Death of both ; administrator of last
survivor, 714.

Survivor alone entitled to wind up,
715.

interference by the administra-
tor, 716.

waiver of the right to wind up,

717.

Title of surviving partner, 718.

execution against deceased, 720.

pardon of survivor, 721.

cannot join administrator as co-
plaintiff, 733.

Set-off of individual debts, 733.

Practice, 724.

death of a Tpaxtner pendente lite,

735.

General powers, 726.

no power to contract, 737.

expenses of winding up, 738.

continuing contracts, 739.

Power of disposition in winding up,
731.

Power to assign for benefit of cred-
itors, 733.

Statutory administrator of a partner-
ship, 733.

Surviving partner's rights against
administrator, 735.

judgment as evidence, 737.

Administrator's rights and duties as
to survivor, 788.

Private creditors of decedent's estate,
751.

Vol. II, CONTENTS. Paet III, Ch. IX

Duty of administrator, 740. Ceeditoes' Remedy.

in case of misconduct of sur- ... . . " , „,,

vivor 741 Agamst surviving partner, 746.

Q . ' ' . . , ^ »,„ Estate of decedent liable, 747.

burvivor appomted executor, 743. t^ ,- i. , ^.c

13. . , . . , English law, 748.

irurchase by survivor from executor, . . ,. „.„

„,„ American law, 749,

same where survivor is execu-
tor, 744.
-^ — ratification of same, 745. Solvent Partner, 753-755.

Hemaining partner after sale of
share, 756,

CHAPTER IX WINDING UP INTER SE, 757.

Period covered by, 758. Is a debt of the firm and not of the

Losses in general, 759. copartner, 779.

When some are unable to contribute. Damages for breach of contract or

760. duty, 780.

Losses Caused by One Partner.

Interest Charges or Allowances.

Through culpabihty, 761. „ .. , „o,

\ i »„« On capital, 781.

as to amount, 763.

Mistakes of judgment, 763.
Diligence, 764.

Must account for assets he has re-
ceived, 765.

Special agreement for interest, 783.

ends at dissolution, 783.

Usury laws, 784.

On advances or loans, 785.

On general accounting, 786.
Expenses and Outlays, 766. ^^ balance struck, 787.

Misconduct, 788.
Useless expenditures, 767. Compound, 789.

Permanent improvements, 768.
After dissolution, 769.

Clandestine Profits.

Extra Compensation.

Before dissolution, 790.
No right to, 770. Implied duty not to compete, 793.

compensation for winding up. Dealings not in competition with

.771. firm, 793.

so of surviving partner winding After dissolution, 794.

up, 773. On unfinished contracts, 795.

services in excess of mere wind- Wrongful dissolutions, 796.

ing up, 773. What amount to be accounted for.

Express agreements for, 775. 797.

" services in other capacity than Survivor's occupation of property,

as partner, 776. 798.

Implied agreements for, 777. Purchase of share at a valuation, 799.

Amount of, 778. Interest in lieu of profits, 801.

xvii

Vol. n.

CONTENTS.

paet rv, Ch. I.

Return of Peemidii.

In general, 803.
Partnerships at will, 803.
Options to dissolve on notice, 804.
Misconduct, 805.
Voluntary dissolutions, 806.
Death and bankruptcy, 807,
Apportionment, 809.

Order of Distribution Between

Partners.
Statement of the account, 810.
Order of distribution, 811.

Capital to be repaid before dividing

profits, 813.
Losses when capital is impaired,

813.
Same when one furnishes aU capital,

815.
Contrary case, 816.
Examples of calculating, 817.
Rule altered by agreement, 818.
Partnership in profits without title

in the property, 819.

CHAPTER X. DISTRIBUTION AS TO THIRD PERSONS.

Partner's lien ajnd its consequences,
820.

The lien is not for separate debts, 831.

Reaches real estate and property in
name of one partner, 833.

but not debitor's individual prop-
erty, 823.

Creditors have no lien, 824.

Joint creditors prior in joint prop-
erty and separate in separate, 835.

Contrary cases, 826.

Kentucky rule, 827.

So in case of deceased partner, 838.

•loint debts which are not partner-
ship debts, 829.

Petitioning creditor, 830.

Exception in favor of government,
831.

No joint estate and no living solvent
partner, 833.

what is " no joint estate," 833.

what is " no living solvent part-
ner," 834.

No interest to the separate creditors,
835.

Separate estate cannot prove against
joint estate, 836.

Exceptions, 837. ,

Joint estate cannot prove against
separate estate, 838.

fraud, 839.

dormant partnerships, 840.

Double proof, 841.

separate security, 848.

One partner cannot compete with
joint creditors against separate es-
tate, 843.

fraud, 844.

but can compete with separate

creditors, 845.

Legal liens on separate estate, 847.

Marshaling, 848:

PAET IV. EEMEDIES.

CHAPTER L ACTIONS AT LAW BETWEEN PARTNERS.

In general, 849.
Set-off, 850.

Advances or loans, 851.
Debts paid by one partner, 853.
Goods sold, 858.

Labor and services, 854.
Rent, 855.

Share of collections, 856.
For final balance, 857.
Express promise, 858.
xviii

Vol. IL contents. Part IV, Ch. III.

Must be in full settlement, 859. Note by one partner to another, 880.

What is an agreed final balance, 860. Note by firm to a partner, 883.

Partial balance, 861. Note by partner to firm, 883.

Pleading, 863. indorsee can sue, 884.

Liability for ascertained balance is promise of compensation, 885.

several, 863. Contract to make settlement, 886.

Exceptions ; Massachusetts, 864. Promises as to omitted items, 887.

— ;— in single transactions, 865. Erroneous carrying out of adjust-

single unadjusted item, 866, ment, 888.

Violation of rights and duties, 867. Violation of the articles, 889.

On contracts independent of the busi- Examples of independent stipula-

ness, 868. tions in articles, 890.

Refusal to form the partnership, 870- Transactions taken out of partner-

873. ship, 891.

For wrongful dissolution, 873. Separating ownership of debts, 893.

Contracts in order to launch the Attachment, 894.

partnership, 874. Loss caused by one partner's wrong.
Reimbursement of excess of con- 895.

tribution, 875-877. Deceit in formation of firm, 897.

Express promise by one partner to Torts against copartner, 898. ^...^

another, 878. i^

Paying deed on promise to repay, Action of Account at Common

879. Law, 899.

CHAPTER II. CLAIMS BETWEEN FIRMS WITH COMMON MEMBER.

Cannot sue at law, 900-903. Can sue in equity, 905.

assignment of the claim, 904. And prove in bankruptcy, 906.

CHAPTER in. SUIT FOR ACCOUNTING,

Equity jurisdiction. 907. Sometimes considered, 919.
Probate and admiralty jurisdiction, set off against balance, 930.

Refused if unnecessary, but not if ^^^ Can Enfoecb AN ACCOUNTING,

merely difficult, 909. Partners, 931.

Employee on share of profits, 933.

Partial Accounting. Representatives, 938.

Must seek dissolution and winding Widow and heirs generally cannot,

up, 910. 934-936.

When granted, 911-915. Assignee, etc., of share, 937.

Settlements periodically or of die- Sale of share 6n execution, 938.

tinct transactions,, 916, Creditor at large, 939.

Individual Matters. Dependants.

Not included in an accounting, 917. All partners are actors and neces-

illustrations, 918, sary, 930,

xix

Vol. IL

CONTENTa

Paet IV, Oh. IV.

Successors in iifterest, 931-933.
Multifariousness, 934.
Creditors' rights, 935.

Plkading.
In general, 936-938.
Prayer, 939.
Answer, 941,

Defenses — Statute of Limita-
tions.
In general, 943.
Merchants' accounts, 943.
Contrary cases, 944.
When the statute begins to run, 945.

special circumstances, 946.

■ fraud, 947.

doctrine that time runs only

from last item, 949.

adverse possession, 950.

demand, 951.

— ^laches, 953.

Account Stated, 953.

What is a stated account, 954-956.

Partial settlements, 957.

No disability to bargain with each

other, 958.
Mistakes, 959.
Error of judgmeiit or of law, 960.

Fraud, 961.
Burden of proof, 963.
Laches, 963. ,

Whether corrected or wholly opened,
964.

Peactice.

Pendency of another suit, 965.
Decree, 966.
Master's report, 968.
Issue out of chancery, 969.
Review, 970.

Personal judgment for balances,
971-973.

SAI.E,

In general, 974.
Specific division, 976.
Manner of sale, 97T.

Evidence in Accounting.

Books, 978.

After dissolution, 980.

As proof or disproof of partnership,

981.
Books as evidence, 983.
Presumptions in odium spoliatoris,

983.
Other evidence, 985.

Costs, 986, 987.

CHAPTER IV. INJUNCTION AND RECEIVER.

Injunction without dissolution.
Pending action for account, 989.
After dissolution, 990.
Exclusion of a partner, 991.
Mutuality, 992.
Receiver, 993.
Before dissolution, 994.
After dissolution, 995.
Exclusion of a partner, 996.
Same in winding up, 997.
Disagreement on winding up, 9S

8. Against surviving or liquidating
partner, 999.

injunction against surviving

partner, 1000.

and receiver, 1001.

Partnership in doubt, 1003.

Partner as receiver, 1003.

Notice necessary, 1004.

Of all property, 1005.

Creditors' rights, 1006.

Receiver continuing business, 1007.

Miscellaneous, 1008.

Vol. n. CONTENTS. , Pakt IV, Ch. VII.

CHAPTER V. SPECIFIC PERFORMANCE.

Generally refused, and why, 1009, Partial performance, compelled
Older leading cases, 1010. -when, 1013.
Partnerships at -will, 1011. In winding up, 1015.
for a term, 1013.

CHAPTER VI. ACTIONS WITH THIRD PERSONS.

Parties Plaintiff. Authorities refusing to apply the
On sealed contracts, 1016. doctrine, 1038.

On mercantile paper, 1017. Defrauded partner cannot sue alone,
On other simple contracts, 1018. ^*'^®'

On contract with one partner, 1019- Disqualification as to others than de- ,

■jQ3j_ ' fendant, 1040.

Dormant partners as co-plaintiffs, Transaction treated as a sale, 1042.

■■ Ago Doctrine not applicable to counter-
Nominal partners as co-plaintiffs, claims, 1043.

^Q23 ' Action sustained when guilty part-

Assignments between partners, 1024. ^^^ ^°^ P^''*^' ^"^*-

Substitution of creditors; new firm Creditor not disqualified, 1045.

suing on contract of old, 1035. Creditor's innocence, 1046.

After bankruptcy of one partner, ^^'^'^ P^^'^S individual note with

^/>oo firm's money, 1047.

Non-consenting partner made de- Payment io money different from

fendant. 1037. ^««^*«> ^°^^- "

Too numerous parties, 1038. „

Amendments. 1039. Defendants.

TOETS AGAINST PAKTNEES. ^ '""^* >^ ^°'''^^' ^°*^- ,

Non-]oinder, how objected to, 1050.
In general, 1030. Statute making joint and se^^eral.

Joint action for libel on the firm, ^q~^

Dormant partners, 1053.
. Separate action for libel on the firm, judgment against ostensible

^°^^- alone, 1058.

Joint action for libel on one, 1033. Nominal partner, 1054.

Other torts, 1034. j^^^^^ pendente lite, 1055.

Disqualification of Plaintiff. Amendments, 1056.

In general, 1035. Appeal and error, 1057.

Authorities sustaining the disqualifl- Removal to United' States court,

cation, 1037. 1058.

CHAPTER VII. ACTIONS IN THE FIRM NAME.

In general, 1059. Practice, 1061.

Individual using a firm name, 1060. Summons, 1063.

zxi

Vol. II.

CONTENTS.

Paet IV, Ch. li.

Judgment, 1063.
Execution, 1064.

Cured by amendment or by judg-
ment and verdict, 1065.
Action on the judgment, 1066.

CHAPTER Vm. PLEADING.

Averment of plaintiff's partnership,
1067.

Plaintiff's averment of defendant's
partnership, 1068.

Averment of title through a partner-
ship, 1070.

Defense of one inuring to all, 1071.

Denials of plaintiff's partnership,
~ 1073.

Denials of execution of instrument,
10(3.

Denials of defendant's partnership,
1074. ' •

Amendments, 1075.

Set-off.

Between the firm and its debtor or
creditor, 1076.

Byoragairlst surviving partner, 1077.

Between third persons and the part-
ners, 1078.

I. Where the partnership is creditor
and one partner is debtor, 1079.

assent of copartners, 1080.

II. Where the partnership is debtor
and one partner is creditor, 1081.

Adtual and not ostensible rights re-
garded, 1083.
Dormant partners, 1083.
Insolvency or non-residence, 1084.

Summons on Pakt.

In general, 1085.

In many jurisdictions now by stat-
ute, 1086.

Entry of appearance for the firm,
1088.

Extra-territorial validity of judg-
ment, 1089.

Appearance before dissolution to
bind copartner personally, 1090.

Service upon one after dissolution,
1091.

Power to enter appearance after dis-
solution, 1092.

Judgment against Part.

In general, 1093.

Where some are not liable, 1094.

If all liable, 1095.

CHAPTER IX. EXECUTION AGAINST ONE.

In general, 1097. Levy by a constructive seizure only.

What is the interest to be taken, 1098. in some states, 1 106.

This chapter applies to firm creditor Sale of more than debtor's interest a

pursuing single partner, 1099. trespass, 1108.

How to reach the interest; earlier, Relief by injunction until account-
legal theory, 1100. ing had, 1109.

Levy on specific chattels less than Purchaser's rights, 1111.

whole, 1101.
Title not affected, 1103.
Garnishment of debtors of firm, 1103.
Surviving partner, 1104.
Levy by taking exclusive possession,

1105.

xxii

Consequence of above doctrine, 1113.
Garnishing the other partner, 1113.
Priorities between the levy and l*ter

levies for firm debts, 1114.
Dormant partnership, 1116.

V^L. II. CONTENTS. Paet IV, Ch. XI.

CHAPTER X. ATTACHMENT AGAINST THE FIRM.

Grounds, 1117. Paktners AS Gabnishees.

On property of one for firm debt, Service upon part only, 1127.

1118.

Act of 01.8 partner as a ground, 1120. Execution op Judgment against
Bond, 1131. F»^-

Miscellaneous, 1123. Property of each liable to execution,

Affidavit, 1133. ' ^^^''•

Misnomer, 1134. Exemption and Homestead Claims,

1131-1134.

CHAPTER XL EVIDENCE OF PARTNERSHIP.

Whether a question of law or fact. Reputation, 1155.

1185. notoriety as evidence of notice.

Inter se, 1136. 1157.

By Plaintiffs oe Defendants, of .„?"^^°f ' , .',

Themselves. ^"^^ *° ^^^'"^ P''°°* '^^'^ ''^^^^'

1159.
By admission of opposite party, 1143. p^j^^ judgment as evidence, 1160.
In disproof of alleged partnership,

1^^^* ' Witnesses.

By Plabstipfs or Defendants, of Except where statutes have removed

THE Opposite Party. disqualification for interest, 1163.

Admission, 1146. Matters outside the firm, 1164.

Using a firm name, 1147. Removal of interest, 1165.

Vagueness of circumstantial evi- AS a witness for the opposite party,

dence, 1149, 1168.

Res gestae, 1153. After death of a partner, 1170.

Admission good against himself. Between partners, 1171.

1154.

APPENDIX.

Forms of clauses in articles, page Release and assignment from retir-

1149. ing to continuing partner, page

Agreement to continue or renew 1164.
partnership, page 1163.

INDEX, page 1167.

TABLE OF CASES.

A.

ADat V. Penny, 19 La. Ann.

389, . - . . 174, 570
Abbot V. Johnson, 33 N. H.
9, - - - 213, 434, 435, 533,
574, 591

V. Smith, 3 "W. Bl. 947, - 457,

1130
Abbott V. Dexter, 6 Cush. 108, 836

V. Jackson, 43 Ark. 313, - 136

V. Omaha Smelting Co. 4

Neb. 416, - - 5

V. Pearson', 130 Mass. 191, 981,

1W7
Abel V. Love, 17 Cal. 333, - 59'

V. Sutton, 3 Esp. 108, 606, 685,

690, 691, 695
A bell, Ex parte, 4 Ves. 837, - 830
Abernathy v. Latimore, 19 Oh.

386, 1065

-^ V. Moses, 73 Ala. 381, - 293
Abpt V. Miller, 5 Jones (N. Ca.),

L. 33, - - - - .510,512
Abraham v. HaU, 59 Ala. 386, 467
Abrahams v. Myers, 40 Md.

499, - - - - 573, 597

Ackerman v. King, 39 Tex.

391, .... 643

Ackley v. Staehlin, 56 Mo. 558, 1038,
1043, 1046
- — V. Winkelmeyer, 66 Mo.

563, - - - 557, 607

Acree v. Commonwealth, 13

Bush, 353, .... 488
Adam v. Townend, 14 Q. B. D.

103, - - 1088

Adams, Ee, 39 Fed. Eep.'843, 453a

XX

Adams, Ex parte, 3 Mont. &

Ayr. 157, .... 843
, Ex parte, 1 Eose, 805, 836, 843

V. Adams, 7 Abb. New

Cas. 293, - - 670, 671, 673

V. Bingley, 1 M. & W. 193, 679

V. Brown, 16 Oh. St. 75, 108

V. Brownson, 1 Tyler (Vt.),

453, - . - - 331

V. Carter, 53 Ga. 160, - 61

— - V. Curtis, 4 Lansing, 164, 141

: V. Funk, 53 111. 219, 47, 879,

887, 893, 979

V. Gaubert, 69 111. 585, - 908

V. Gordon, 98 111. 598, 818

V. Hackett, 7 Cal. 157, - 935

— V. Hackett, 37 N. zt. 389

(59 Am. Deo. 376), . 719, 733
V. Kable, 6 B. Mon. 384

(44 Am. Dec. 773), 795, 917, 934

V. May, 37 Fed. Eep. 907, 1049,

1058

V. Pugh, 7 Cal. 150, . 88

V. Buggies, 17 Kan. 337, 360,

361

V. Sturges, 55 111. 468, 477, 848

V. Ward, 36 Ark. 135, 718, 737

V. Wood, 9 Cal. 34, . 1006

V. Woods, 8 Cal. 153, - 935

Adams Bank v. Jones, 16 Pick.

574, .... 847, 368

V. Eice, 3 Allen, 480, 56, 81

Adansonia Co., Ee, L. E. 9 Ch.

App. 635, .... 440
Addams v. Tutton, 39 Pa. St.

447, 873

Addison v. Burkmyer, 4 Sandf.

Ch. 498, .... 453

Abe.]

TABLE OF CASES.

[All.

Adee v. Cornell, 93 N. Y. 572

(aff. 25 Hun, 78), - - - 339

V. Demorest, 54 Barb. 433, 373

Adickes v. Lowry, 15 S. Ca.

138, 835

Adkins v. Arthur, 33 Tex. 431, 507,

1063
^tna Ins. Co. v. Peck, 38 Vt.

93, 505

V. Wires, 38 Vt. 93, - - 533

Agace, Ex parte, 3 Cox, 313, 333,

1151
Agawam Bank v. Morris, 4

Gush. 99, - - 453, 453a

Ah Lep V. Gong Choy, 13 Ore-
gon, 305, - 338, 443, 446, 1094
Aicardi v. Strang, 38 Ala. 336, 1167
Aiken y. Ogilvie, 12 La. Ann.

358, . - . . 764,976
V. Thompson, 43 Iowa,

506, 534

Airey v. Borhara, 39 Beav.

630, 769, 773, 780, 796, 797, 809

Ajaoio V. Fqipes, 14 Moo. P. C.

160, ... - 1031

Akhurst v. Jackson, 1 Swanst.

85, - - ... 807

Alabama Coal Mines Co. v.

Bfainard, 35 Ala. 476, 194, 401

Alabama Fertilizer Co. v. Rey-
nolds & Lee, 79 Ala. 497, - 214,
257, 319, 333, 323, 373, 459
Albee v. Fairbanks, 10 Vt. 314, 59

.^ V. Wachter, 74 111. 173, 978

Albers v. Wilkinson, 6 Gill &

J. 358, - - - 414, 1167

Albion L. Ass. Soc, Ee, 16 Ch.

D. 83, 181

' Albretcht v. Sussmann, 3 Ves.
' &B. 323, ... - 110
Albright v. Voorhies, 36 Hun,

437, - - - 629, 633

Alcott V. Strong, 9 Cush. 323, 497,

1151
Alder v. Fouracre, 3 Swanst.

489, . - - - 305, 990
Alderson v. Clay, 1 Stark. 405, 1140

Alderson v. Pope, 1 Camp. 404, 91,

323
Aldrich v. Lewis, 60 Miss.

239, ... - 854,890
V. Wallace, 8 Dana (Ky.),

287 (83 Am. Dec. 495), - 1101

Alexander v. Alexander, 13

La. Ann. 588, - - - 885
V. Barker, 3 Cr. & J. 133 ;

3 Tyrw. 140, - - - - 1030
V. Coulter, 3 S. & R. 494, 716

V. Crosthwaite, 44 111.

359, 1167

V. Georgia, 56 Ga. 478, - 476

V. Gorman (R. L), 7 Atl.

Rep. 343, - - - - 833

V. Jacoby, 33 Oh. St. 358, 1034

V. Kimbro, 49 Miss. 529, 287,

301

V. Lewis, 47 Tex. 481, - 580',

598, 599, 601, 603, 610
V. Lewis, 51 Tex. 578, - 598

V. McGinn, 3 Watts, 330, 445,

1053

V. Morgan, 31 Oh. St. 546, 138

— — V. Sterni 41 Tex. 193, - 1086,

1091
Alexandria, Mayor of, -v. Pat-
ten,.-4 Cranch, 317, - - 489
Alfele V. Wright, 17 Oh. St.

238, - - - . 277

Algen V. Boston & Maine R.
R. 133 Mass: 423 (6 Am. &
Eng. R. R. Cas. 562), - 57, 66

Allan V. Garven, 4 Up. Can. Q.

B. 343, - - - 861

Allen V. Anderson, 13 111. App.
451, - - - - ' - 855

V. Atchison, 36 Tex. 616, 510,

646

V. BlancTiard, 9 Cow. 631, 738,

1166

V. Brown, 39 Iowa, 330, 155

V. Center Valley Co. 21

Conn. 130 (54 Am. Dec. 333), 560,

564. 834
V. Cheever, 61 N. H, 33, - 415

AliL.]

TABLE OF CASES.

[And.

Allen V. Coit, 6 Hill, 818, - 439, 440,

441, 978
V. Davis, 13 Ark. 28, - 61

V. Dunn, 15 Me. 293 (88

Am. Dec. 614), - - 91, 104

V. Erie City Bank, 57 Pa.

St. 129, .... 903

V. Farriilgton, 3 Sneed,

526, ... .881

V. Frunet Min. & Smelt.

Co. 73 Mo. 688, - . - 498
— - V. Grissom, 90 N. Ca. 90, 651,

557, 834

V. Hawley, 6 Fla. 143 (68

Am. Dec. 198), - 70, 660, 974,
830, 1007

V. Hill, 16 Cal. 113, 715, 736,

731

V. Kilbre, 4 Madd. 464, - 754

V. Maddox, 40 Iowa, 134, 1081

V. Nat'I Bank, 6 Lea, 558, 731,

739

V. Owens, 3 Spears (S. Ca.),

170, - - 331, 447, 457, 524

V. Rostain, US. & E.

363, 1155

V. Russell (Louisville Ch.

Ct. 1868), 3 Am. Law Reg.

N. S. 361, - - ' 583

V. St. Louis Bank, 130

U. S. 20, ... 1041, 1043

V. State, 34 Tex. 330, - 488

V. Taylor, 39 L. J. Ch.

627 ; 22 L. T. 651 ; 18 W. R.

888 (afifd. on appeal, 19 W. R.

85), - - - - - 677
V. Taylor, 24 L. T. 249 ; 19

W. R. 556, - - - 677
V. Wells, 23 Pick. 450 (33

Am. Dec. 757), - - 747, 847

V. White, Minor (Ala.),

365, - - - - - 1033

V. Withrow, 110 U. S. 119, 385

V. Woon socket Co. 11 R.

I. 388, - 134, 583, 657, 943, 945
Allfrey v. AUfrey, 1 Mac. & G.

87, 964

Allison V. Davidson, 1 Dev, &
Bat. Eq. 46, - - - - 716

V. Davidson, 8 Dev. Eq.

79, 455, 541, 760, 761, 832, 930, 971
Alsop V. Mather, 8 Conn. 584

(31 Am. Dec. 703), - 53, 750
Alspaugh V. Mathews, 4 Sneed,

316, ... .361

Alston V. Rowles, 13 Fla. 117, - 739

V. Sims, 34 L. J. Ch. 553 ;

1 Jur. N. S. 458, - - 369

Alvord V. Smith, 5 Pick. 333, 73, 74
Ambler v. Bolton, L. R. 14 Eq.
427, - - - 269, 974

V. Bradley, 6 Vt. 119, - 43, 61

V. Whipple, 30 Wall. 546, 589,

591, 593, 910
Ambs V. Caspari, 13 Mo. App.

586, - - - 733, 724

Anierican Bank v. Doolittle,

14 Pick. 133, - - - - 885
American Bank Note Co. v.
Edson, 56 Barb. 84; 1 Laos.
888, - . - 305

American Iron Mountain Co.

V. Evans, 37 Mo. 553, - 700, 701
American Linen Thread Co. v.

Wortendyke, 34 N. Y. 550, 623'

Amidown v. Osgood, 34 Vt.

278 (58 Am. Dec. 171), .613, 628

Amsinck v. Bean, 33 Wall. 395, 311,
583, 753, 754, 836, 838, 843, 845
Anderson v. Ackerman, 88
Ind. 481, - - 715, 739 '

V. Anderson, 35 Beav. 190, 591

V. Beebe, 32 Kan. 768, 739, 908

V. Chenney, 51 Ga. 373 , - 1113

V. Henshaw, 3 Day, 373, - 534

V. Holmes, 14 S. Ca. 168, - 1035

V. Howard, 49 Ga. 313, - 646

V. Lemon, 8 N. Y. 386 (re-
versing 4 Sandf . 553), - - 805

V. Levan, 1 Watts & S. 334, 430,

535
V. Maltby, 2 Ves. Jr. 344, 563,

■ V. Martindale, 1 East, 497, 1016

xxvii

And.]

TABLE OF CASES.

[Arm.

Anderson v. Norton, 15 Lea
(Tenn.), 14, 195, 565, 698, 726, 732,

1152

V. Pollard, 62 Ga. 46, 747, 750

V. Powell, 44 Iowa, 20, - 121

V. Robertson, 32 Miss. 241, 880

V. Snow, 9 Ala. 247, 1158

V. Tarpley, 6 Sm. & Mar.

507, - - - " - 543, 1072

V. Taylor, 2 Ired. Eq. (N.

Ca.) 420, 770, 771, 775

V. Tompkins, 1 Brock.

456, - - 340, 403, 418, 583
V. Wauzer, 5 How. (Miss.)

587 (37 Am. Dec. 170), - 331, 1127

V. White, 39 Mich. 130, 1094

V. Whitlock, 3 Bush, 398, 114,

123, 790
Andress v. Miller, 15 Pa. St.

316, - ... 569

Andrew, Succession of, 16 La.

Ann. 197, . - - - 978
Andrews, Ex parte, 25 Ch. D.

505, ... 836
V. Alexander, L. R. 8 Eq.

176, - ... 75

V. Allen, 9 Serg. & R.

241, - - ' 735, 858, 860

T. Brown, 21 Ala. 437 (56

Am. Deo. 253), - 288, 290, 393,
294, 719

V. Congar (S. C. U. S.

1881), 20 Am. Law Reg. (N.
S.) 328; Law. Coop. Bk. 36,

p. 90, - - 321, 832, 350, 370

V. Ennis, 16 Tex., 45, - 1085

V. (Jarstin, 10 C. B. (N. S.)

444, 595

V. Keith, 34 Ala. 723, - 1105,

1111

V. Mann, 31 Miss. 323, - 551

V. Planters' Bank, 7 Sm.

& Mar. (Miss.) 192 (45 Am.

Dec. 300), - - 349, 426, 437

V. Wall, 3 How. 568, - 908

Angier v. Webster, 14 Allen,

211, 678

Anglesea Colliery Co. , Re, L. R.

2 Eq. 371 ; 1 Ch. App. 555, - 813
Anonymous, Z. v. X 3 Kay &

J. 441, ... 581, 991

, 13 Mod. 446, - - - 381

, 2 Ves. Sr. 629, - 870, 1010

, 1 Bank. Reg. 187, - - 1131

, 3 Hayw. (N. Ca.) 99, - 414

, Tayl. (N. Ca.) 113, - - 414

V. Layfleld, Holt, 434, - 384

V. Layfield, 1 Salk, 292, - 325,

431, 437
Anslyn v. Frank, 11 Mo. App.

598, 1159

Anthony v. Butler, 13 Pet.

423, - - - 399, 416, 417

• V. Wheatons, 7 K. I. 490,

323,

424
914

Apperly v. Page, 1 Phil. 779,
Appleby v. Brown, 24 N. Y.

143, , 899

Appleton V. Smith, 24 Wis.

381, ..... 33
Apsey, Ex parte, 8 Bro. C. C.

265, • . - . - 481

Arbuokle v. Taylor, 8 Dowl.

160, - - - , - 466, 467
Archer v. Walker, 38 Ind. 473, 759
Arden v. Tucker, 4 B. & Aid.

817, - - - 1019

Ardley v. Russell, 1 Browne

(Pa. Com. PI. 1810), 145, - 1072
Arguimbo v. Hillier, 17 Jones

& Sp. 353, - - - - 26
Arick, Succession of, 22 La.

Ann. 501, - . . 365

Armand v. Burrum, 69 Ga. 758, 1113
Armistead v. Butler, 1 Hen.

(Va.)176, - - - - 410
Armitage v. Winterbottom, 1
. M. & G. 130, .... 409
Armsby v. Farnam, 16 Pick.

318, .... 981, 1025
Armstrong v. Crocker, 10

Gray, 269, .... gee

V. Fahneetook, 19 Md. 58, 541,

648, 651, 660, 585

ZZTIU

Abm.]

TABLE OF CASES.

[Atw.

Armstrong v. Hussey, 12 S. &

E. 315, - - - 608

V. KleinhauB, 83 Ky. 303, 674

V. Robinson, 5 Gill & J,

412, 191, 388, 421, 1016, 1018, 1049,

1073
Arnett v. Finney, 41 N. J. Eq.

147, - - - 942, 953

Arnold v. Angell, 63 N. Y. 508, 47

. V. Arnold, 90 N. T. 580, 859,

930
V. Brown, 24 Pick. 89 (35

Am. Dec. 296), 330, 341, 403, 405,

411, 583, 584, 587, 589

V. Camp, 13 Johns. 409, 537

V. Hamer, 1 ~ Freem.

(Miss.) Ch. 509, - - 835, 833

V. Kreutzer, 67 Iowa, 214, 676

V. Morris, 7 Daly, 498, 403, 406,

1053

V. Nichols, 64 N. Y. 117, 504,

510, 514
V. Stevenson, 2 Nev. 234, 399

V. Wainwright, 6 Minn.

358, - - 381, 390, 391, 833
Arthur V. Weston, 33 Mo. 378, 396
Arton V. Booth, 4 Moo. 193, 383, (584
Arundellv. Bell, 53 L. J. Ch.
537; 49 L. T. 345; 31 W. R.

477, 668

Asbury v. Jlesher, 11 Mo. 610, 446,

448, 610

V. Mcintosh, SO Mo. 378, 734

Ash V. Guie, 97 Pa. St. 493 (89
Am. Rep. 818; 10 Am. Law
Eec. 278; 13 Reporter, 281), 75,

1066
Ashby V. Porter, 36 Gratt. 455, 835,

838, 841

V. Shaw, 83 Mo. 76, 39, 37, 63

Ashhurst v. Mason, L, R. 30

Eq. 235, - - - 119,761

AskeW V. Odenheimer, Bald.
C. C. 380, - - - - 983

. V. Poyas, 2 Desaus. 145, 966

V. Springer, 111 111, 663, 770,

775, 779, 945, 949, 976

Aspinall v. London & N. W.

R'y Co. 11 Hare, 335, - - 584
AspinwaU v. WilUams, 1 Oh.

84, 201

Astle V. Wright, 33 Beav. 77, 805,

806, 809
Astley V. Weldon, 3 B. & P.

346, 350

Atchison Sav. Bank v. Tem-

pl,ar, 36 Fed. Rep. 580, - - 1093
Atchison, Topeka & Santa Fe

R. R. V. Roach, 35 Kan.

740, 66

Atherton v. Tilton, 44 N. H.

451, 36, 43

Atkins V. Hunt, 14 N. H. 205, 73, 76,

81, 87
V, Prescott; 10 N. H.

130, - - • - 1103, 1137, 1138

V. Saxton, 77 N. Y. 195, 561,

1108

V. Tredgold, 3 B. & C. 35, 704,

746
Atkinson v. Cash, 79 111. 53, - 938
Atlanta v. Dooby, 74 Ga. 703, 735,

1039
Atlantic State Bank v. Savery,

83 N. Y. 391 (aflfg. 18 Hun,

36), - - - 347, 349, 353, 394
Attaway v. Third Nat'l Bank,

.15 Mo. App. 577, - - - 127
Attorney-General y. Barges,

Bunb. 333', - - - 468, 471
V. Hubbuok, 10 Q. B. D.

473; 18 id. 375, - - - 397
V. State Bank, 1 Dev. &

Bat. Eq. 545, - - - - 916

V. Strangforth, Bunb. 97, 468

V. Weekes, Bunb. 333, - 468

Aftwood V, Rattenbury, 6 J. B.

Moore, 579, - - - - 1067
Atwater v. Fowler, 1 Edw.

Ch. 417, .... 953, 963
Atwood V. Impson, 20 N. J.

Eq. 150, - - - - - 1109
V. Lockhart, 4 McLean,

350, - - - - 446, 507

Atw.]

TABLE OF CASES.

[Bai.

Atwood V. Maude, L. R. 3 Ch.

App.^69, - 694, 805, 806, 809

V. Meredith, 37 Miss. 685, 136,

1101, 1103, 1113, 1155, 1157, 1158
Aubrey v. Frieze, 59 Ala. 587, 61
Auburn Exchange Bank v.

Fitch, 48 Barb. 344, - - 569
Augsbury v. Flower, 68 N. Y.

619, 963

Augusta Wine Co. v. Weip-

pert, 14 Mo. App. 483, - 317, 437,

447
Auld V. Butcher, 3 Kan. 135, 956.

966
Aultman v. Fuller, 53 Iowa, 60, 26
Aultman & Taylor Mfg. Co. v.

Webber, 4 111. App. 437, 395, 1073
Austen v. Boys, 24 Beav. 598

(aflfd. in S. C. 3 DeG. & J.'636), 216
661, 668
Austin V. Bostwick, 9 Conn.

496 (35 Am. Dec. 43), - - 701

V. Cummings, 10 Vt. 36, 641

V. Holland, 69 N. T. 571

(35 Am. Rep. 346), - 614, 616

V. Jackson, 11 Ch. D. 943, 987

V. Seligman, 31 Blatohf.

506 ; 18 Fed. Rep. 519, 559

V. Thompson, 45 N. H.

113, - - -64,75

V. Vandermark, 4 HiU,

259, - - - - 352
V. Vaughan, 14 La. Ann.

43, - - - 849, 850

V. Walsh, 3 Mass. 401, - 1034

V. Williams, 3 Oh. 61, 200, 301,

453, 1153
Autenreith v. Hessenbauer, 43
' Cal. 356, - - - - 754
Autrey v. Frieze, 59 Ala. 587, 26, 38
Averill v. Loucks, 6 Barb. 19, 383,

291, 535

V. Loucks, 6 Barb. 470, - 282,

291, 569, 842, 848

V. Lyman, 18 Pick. 346, ' 384, 518

Avery v. Lauve, 1 La. Ann.

457, - ... 88

Avery v. Myers, 60 Miss. 367, 53

V. Rowell, 59 Wis. 82, - 349

Ayer v. Ayer, 41 Vt. 346, 326, 335,

585, 589
Ayrault v, Chamberlin, 26

Barb. 83, - - - - 507
Ayres v. Chicago, Rock Isl. &

Pac. R. R. 53 Iowa, 478, 711, 730

V. Gallup, 44 Mich. 13, - 503

Azel V. Betz, 3 E. D. Smith,

188, - - -, - - 274

Babb V. Reed, 5 Rawle, 151

(38 Am. Dec. 650), - - 75
Babcock v. Hermance, 48 N. Y.

683, - - - 967

V. Stewart, 58 Pa. St. 179, 507

V. Stone, 3 McLean, 172, - 359

Bach V. State Ins. Co. 64 Iowa,

595, - - - 686, 687

Bachia v. Ritchie, 51 N. Y. 677, 597
Backhouse v. Charlton, 8 Ch.D.

414, - - - 726
V. Hall, 6 Best & Sm. 507

(6 N. R. Q. B. 98), - - 653

Backus V. Coyne, 35 Mich. 5, - 336

V. Fobes, 20 N. Y. 304, 505, 533

V. Taylor, 84 Ind. 504,

Bacon v. Cannon, 2 Houst. 47,
V. Hutchings, 5 Bush, 595,

618
70
205,
1167
Badeley v. Consolidated Bank,

34 Ch. D. 536, - 50

Badger t. Daenieke, 56 Wis.

678, - - 437, 490, 1019

Baer v. Leppert, 12 Hun, 516, 399
Bagaley, The Wm. 5 Wall.

377, ... 70, 401, 583
Bagley v. Smith, 10 N. Y. 489
(61 Am. Dec. 756; S. c. 19
How. Pr. 1), - - - 578, 873
Bagot V. Easton, 9 Ch. D. 1, - 595
BagweU v. Bagwell, 72 Ga. 92, 838
Bailey v. Bancker, 3 Hill, 188, . 883

V. Clark, 6 Pick. 372, 47, 56, 57,

328, 565

Bai.]

TABLE OF CASES.

[Ban.

Bailey v. Ford, 13 Sim. 495, 693, 977

V. Kennedy, 3 Del. Ch. 13, 825

V. Macaulay, 19 L, J. Q. B.

73, 89

V. Moore, 35 111. 347, - 964

V. Starke, 6 Ark. 191, - 874

Baird's Case, L. R. 5 Oh. App.

735, - - ' - 72, 187, 603
Baird v. Baird, 1 Dev, & Bat.

(N. Ca.) Eq. 534, 385, 910, 948, 976

V. Cochran, 4 S. & R. 397, 347

V. Planque, 1 F. & F. 344, 91

Baker's Appeal, 31 "Pa. St. 76 551,

(59 Am. Dec. 753), 551, 656

Baker v. Casey, 19 Grant's Ch.

(Up. Can.) 537, - - 70

V. Charlton, Peake, 80, 107, 196

V. Dawbarn, 19 Grant's

Ch. (Up. Can.) 113, , 835, 838, 839,

845
V. Finney, 3 Pears. (Psi.)

177, .... 847

V. Jewell, 6 Mass. 460, 1024

V. Mayo, 139 Mass. 517, 785, 788

V. Nachtrieb, 19 How. 126, 13

V. Napier, 19 Ga. 520, - 447

V. Sheehan, 39 Minn. 385, 1131

V. Stackpoole, 9 Cow. 430;

Lockw. Rev. Cas. 889 (18

Am. Dec. 508), 495, 497, 700

V. Wimpee, 19 Ga. 87, - 847

Baldwin v. Bald, 48 N. Y. 673, 639,

632

V. Burrows, 47 N. Y. 199, 65, 79

V. Johnson, 1 N. J. Eq.

441, - 295, 301, 680, 689

t: Leonard, 39 Vt. 260, - 396

V. Richardson, 33 Tex. 16, 396,

299, 416, 417

V. Tynes, 19 Abb. Pr. SS, 389

Ball V. Britton, 58 Tex. 57, - 873
V. Dunsterville, 4 T. R.

313, - - - - 416,418
V. Farley (Ala.), 1 South.

Rep. 253, - - - 251,645
V. Strohecker, 2 Spears

(S. Ca.,1844), 364,

1029

Ball V. Watertown P. Ins. Co.

44 Mich. 137, - - - 655
Ballantine v. Frelinghuysen,

3^ N. J. Eq. 266, 283, 598,- 601, 603
Ballard y. Callison, 4 W. Va.,

326, - 577, 585, 756, 999, 1001
Ballin v. Ferst, 55 Ga. 546, - 195
Ballou V. Spencer, 4 Cow. 163, 64
Baltimore F. Ins. Co. v.

McGowan, 16 Md. 45, - - 272
Banchor v. Cilley, 38 Me. 553, 1136
Banco de Portugal v. Waddell,

11 Ch. D. 317, - - 841

Bamkv.Galliott, 1 McMull. 309

(36 Am. Dec. 256), - - 631, 694

V. Gray, 13 Lea (Tenn.),

459, - - - - 446, 507, 928

V. Green, 40 Oh. St. 431, 528,

527, 529, 694, 698
V. Hall, 85 Oh. St. 158, 4, 6, 7

V. Harvey, 12 Mo. App.

588, ' 1046

V. Railroad Co. 11 Wall.

634, 158, 183, 184, 577, 585, 927,
930, 981

V. Sawyer, 88 Oh. St. 839, 184,

■ 185, 186, 381, 291, 295,. 446* 105S

V. Smith, 36 W. Va. 541j 8,

568,- 940,ai47
-. — V. St. Jos. Lead Co. 13

Mo. App. 587, - - - 348
Bank of Alexandria v. Mande-

ville, 1 Cranch, C. C. 575, - 157
Bank of British N. Am. v.

Cuvillier, 14 Moo. P. C. 187, 655
Bank of Chenango v, Osgood,

4 Wend. 607, - - 385,386
Bank of Commerce v. Selden,

3 Minn. 155, - - - 347, 358
Bank of Commonwealth v.

Mudgett, 44 N. Y. 514 (affg.

45 Barb. 663), 351, 860, 398, 448,

6ia

Bank, of England, 2 Glyn & J.
363, - - - - - 383

Bank of Kentucky v. Brook-
ing, 2 Litf. 41, - - 833, 364

XXXI

Ban.]

TABLE OF CASES.

[Bae.

Bank of Louisville v. Hall, 8
Bush, 672, - - 291, 297, 298

Bank of Mobile v. Andrews, 2
Sneed (Tenn.), 535, - 570, 697

V. Dunn, 67 Ala. S81, - 569

Bank of Montreal v. Page, 98
111. 109, - 424, 575, 609, 683, 695

Bank of N. Ca. ^v. Fowle, 4
Jones, Eq. 8, - 184, 185, 586

Bank of New Orleans v. Mat-
thews, 49 N. Y. 12, - - 582

Bank of N. Y. v. Vanderhorst,
32 N. Y. 553, - - 691, 726

Bank of N. A. v. Embury, 21
How. Pr. 14, ... 334

V. McCall, 3 Binn. 338 ; 4

id. 871, 373, - - - 730

Bank of Port Gibson v. Baugh,
9 Sm. & Mar. 390, 689, 693, 737,

731

Bank of Rochester v. Bo wen,

7 Wend. 158, - - - 364
V. Monteath, 1 Den. 403

(43 Am. Dec. 681), 56, 195, 322,
441, 443
Bank of St. Albans v. GilU-

land, 23 Wend. 311 (35 Am.

Dec. 566), - - - 348, 363

Bank of St. Marys v. St. John,

25 Ala. 566,- - 152, 153, 1022

Bank of Scotland v. Christie,

8 CI. & Fin. 314, - - 653, 656
Bank of S. Ca. v. Humphreys,

1 McCord, L. 888, - 617, 694, 698

Bank of Tennessee v. Saffar-
rans, 8 Humph. 597 349, 363, 364

Bank of Toronto v. Nixon, 4
Ont. App. 346, - - - 170

Bank of U. S. v. Broadfoot, 4
■ McCord, 30, - - - - 1086

Bank of Vergennes v. Cam-
eron, 7 Barb. 143, - - - 700

Bank of Wilmington v. Al-
mond, 1 Whart. 169, - - 510

Bankhead v. Alloway, 6 Cold.
56, - - 317, 373, 438, 960

Banks r. Allen, 26 Ga. 568, - 1048

Banks v. Bosler, 4 Bibb, 573, - 1018

V. Gibson, 34 Beav. 566, - 669,

671, 673

V. Mitchell, 8 Yerg. Ill, - 900

Banner Tobacco Co. v. Jeni-

son, 48 Mich. 459, 282, 317, 334,

439
Barber, Ex parte, L. R. 5 Ch.

App. 687, - - - 215, 954

V. Barber, 18 Ves. 286, - 943

V. Barnes, 52 Cal. 650, 584, 589

^— V. Cazalis, 30 Cal. 92, - 59

V. GillBon, 18 Nev. 89, - 534

V. Hartford B'k, 9 Conn.

407, - - - 719, 1U)3, 1104
Barclay's Appeal (Pa.), 8 Atl.

Rep. 169, - - - - 795
Barclay v. Lucas, 3 Doug. 321 ;

1 T. R. 39171, - - - 651

V. Phelps, 4 Met. 397, - 835

Barcroft v. Haworth, 29 Iowa,

463, 101, 201, 205, 1151, 1154

V. Snodgrass, 1 Cold. 430, 338,

403, 448, 726, 733, 740
Bard well v. Perry, 19 Vt. 393

(47 Am. Dfec. 687), 824, 826, 838,
832, 847, 848, 929
Barfleld v. Loughborough, L.

R. 8 Ch. App. 1, - - - 783
Barfoot v. Goodall, 3 Camp.

147, - - - -

Barger v. Collins, 7 Har. & J.

313, - - , . .

Barhydt v. Perry, 57 Iowa, 416,
Baring's Case. See Devaynes

V. Noble.
Baring v. Crafts, 9 Met. 380,

191, 201, 449, 535, 1154

V. Dix, 1 Cox, 213; - - 693

V. Lyman, 1 Story, C. C.

396, - - 543, 888, 884

Barker v. Allan, 5 H. & N. 61, 879

V. Ayers, 5 Md. 202, - 1167

V. Blake, 11 Mass. 16, 518, 1081

V. Goodair, 11 Ves. 78, - 754

V. ;VIann, 5 Bush, 672, 815, 328

V. Parker, 1 T. R. 287, - 61

633

958
569

168,

Bar.]

TABLE OF CASES.

[Bat.

Barker v. Richardson, 1 Tounge

• & J. 363, .... 383

V. Watertown, 137 Mass.

237, 177

Barkley v. Tapp, 87 Ind. 35, - 644,

550, 685
Barklie v. Scott, 1 Huds. &

Br. 83, 64

Barlow v. Coggan, 1 Wash.
T'y, 257, - ... 750

V. Reno, 1 Blackf. 253, - 377

V. Wainwright, 23 Vt. 88

(53 Am. Dec. 79), - - 506, 608
Barnard, Re, 33 Ch. D. 447, - 453a,

441

V. Lapeer, 6 Mich. 274, 331, 438

Barnes v. Elmbinger, 1 Wis.
56, - - ... 1067

V. Jones, 91 Ind. 161, - 996

Barnett v. Smith, 17 111. 565, - 650

V. Watson, 1 Wash. (Va.)

372, .1098

V. Juday, 38 Ind. 86, - 535

V. Smith, 17 111. 565, - 650

Barney v. Currier, 1 D. Chip.

315 (6 Am. Dec. 739), - - 393

V. Earle, 30 Ala. 405, - 1168

-— V. Smith, 4 Har. & J. 485

(7 Am. Dec. 679), 719, 732

Barns v. Barrow, 61 N. T. 39, 650,

1019
Barrett, Re, 3 Hughes, 444, 381, 383

V. I. & St. L. R. R. 9 Mo.

App. 336, - . .' 67

V. McKenzie, 24 Minn. 20, 928,

1103, 1105, nil

V. Russell, 45 Vt. 43, 333, 401

V. Smith, 17 111. 565, - 104

—— V. Swann, 17 Me. 180(33

Am. Dec. 233), - - 33, 361
Barron v. Mullin, 21 Minn. 377, 1008
Barrow, Ex parte, 2 Rose, 363, 164,

167
Barry v. Barry, 3 Cranch, C. C.
120, ..... 985

V. Briggs, 33 Mich. 301, - 715, ,

719, 786, 731, 999

Barry v. Crowley, 4 Gill, 194, 397
V. Fisher, 8 Abb. Pr. (N.

S.) 369; 39 How. Pr. 531. - 1103

V. Foyles, 1 Pet. 311, 454, 1068

V. Nesham, 3 C. B. 641, - 16

Barstow v. Gray, 3 Me. 409, - 1033
Bartlett v. Jones, 3 Strob. L.

471 (49 Am. Dec. 606), 43, 357, 358,
360, 1110

V. Parks, 1 Cush. 83, 981, 933

V. Waring, 4 Ala. 688, - 531

Bartley v. Williams, 66 Pa.

St. 329, ... - 378

Barton v. Hanson, 3 Taunt.

49, 257, 446

Bascom v. Young, 7 Mo. 1, 348, 370
Basdell v. Souther, 6 Gray, 149, 316
Bass, Ex parte, 36 L. J. Bkcy. ■

39, ----- - 844

Bass V. Emery, 74 Me. 338, - 784

V. Estill, 50 Miss. 300, - 848

V. Taylor, 34 Miss. 342, 680, 983

Bassett v. Miller, 39 Mich.

133, - - 719, 723
V. Shepardson, 52 Mich.

3, ..... 588

Bast's Appeal, 70 Pa. St. 301, 306,

307, 793
Batavia Bank v. Tarbox, 38

Hun, 57, - - . , - - 655
Batohelor v. Whitaker, 88 N.

Ca. 350, - - - - 305
Bate, Ex parte, 3 Deac. 358, - 842
V. McDowell, 17 Jones &

Sp. 106, - - - - 510. 513
Bates V. Halliday, 3 Ind. 159, - 1080
Bateson v. Gosling, L. R. 4 C.

P. 9, 386

Battaille v. BattaUIe, 6 La.

Ann. 682, - - - - 878
Battle V. Street (Tenn.), 3 S.

W. Rep. 384, - - - 317
Battley v. Lewis, 1 M. & G.

155, 331

Batty V, Adams County, 16

Neb. 44, - - - 296, 399
V. McCundie, 3 C. & P. 208, 459

Bat.]

TABLE OF CASES.

[Bec.

Batzer v. Batzer, 28 N. J. Eq.

136, - 181

Bauerman, Ex parte, 8 Dea. 476, 834
Baugher v. Duphorn, 9 Gill,

314, 390

Baum V. Fryrear, 85 Mo. 151, _ 510,

516, 519
Bawden v. Howell, 8 Man. &

G. 638, • - - - ' - 1017
Baxter, Ee, 18 Bankr. Reg. 62, 841
. V. Bell, 19 Hun, 367 (re-
versed in 86 N. T. 195), - 420

V. Bell, 86 N. Y. 195, 430, 534,

848
— ; — V. Buchanan, 3 Brewst.

(Pa.) 435, .... 1003
V. Clark, 4 Ired. (N. Ga.)

L. 137, .... 328, 445
V. Connoly, 1 Jao. & W.

576, . . . : . 657

V. Plunkett, 4 Houst. 450, 80,

509

V. Rodman, 3 Pick. 435, 43, 59

V. West, 1 Drew. & Sm.

173, - - - . 209, 594
Bayley v. Schofleld, 1 M. & S.

338, 238

Bays V. Conner, 105 Ind. 415, 339,
343, 371, 533, 534
Beaoannon V. Liebe, 11 Oregon,

443 (19 Reporter, 183), 900, 904

Beach v. Hay ward, 10 Oh.

455, - 154, 715, 733, 733, 1083
V. Hotchkiss, 3 Conn. 425 ;

id. 697, - - - ^ 849,860

V. State Bank, 2 Ind. 488, 349,

353, 1441

V. Ollendorf, 1 Hilt. 41, - 415

Beacham v. Eckford, 3 Sandf.

Ch. 116, - - 315, 786, 787, 788
Beal V. Snedicor, 8 Porter

(Ala.), 523, - - - 1091, 1093
Beale v. Caddiok, 3 H, & N.

338, - - - 381, 498, 499

V. Mouls, 10 Q. B. 976, 508, 511

Beall V. Lowndes, 4 S. Ca. 358, 107,

108

Beall V. Poole, 27 Md. 645, 85, 507,
510, 511, 517, 1147
Beals V. Sheldon, 4 Up. Can. Q,

B. (old ser.) 303, - - - 347
Beam v. Barnum, 21 Conn. 200, 385,

386, 387

V. Macomber, 33 Mich. 137, 304

Beaman v. Whitney, 20 Me.

418, 76, 296

Bean v. Gregg, 7 Colorado, 499, 858,

862
Bearce v. Washburn, 43 Me.

564, 35

Beardsley v. Hall, 36 Conn,

270 (4 Am. Rep. 74), - 705
V. Tappan, 1 Blatchf. C.

C. 588, ------ 1031

Beatson v. Harris, 60 N. H. 83, 383
Beatty v. Wray, 19 Pa. St,

516, 773

Beaumont v. Boulther, 5 Ves.

485;.7 id. 599j - - - 964
V. Meredith, 3 Ves. & B.

180, - - - - 75

Beauregard v. Case, 91 U. S.

134, - - - 81, 1081

Beaver v. Lewis, 14 Ark. 138, 589
Beck V. Kantorowicz, 3 K. &

J. 330, - - - - 912
V. Martin, 3 McMull. (S.

Ca.)360, - . - - 333
Becker v. Boon, 61 N. Y. 317, 336
Becket v. Sterrptt, 4 Blackf.

499, . . -• - . 277
Beckford- v. Hill, 134 Mass.

588, - - - 525, 1150

Beckham v. Drake, 9 M. iS: W.

79, - - - - 334, 1023

V. Peay, 1 Bailey, 131, - 701

V. Peay, 3 Bailey, L. 133, 383,

1079
Beckley v. Munson, 22 Conn.

299, 629

Beckwith v. Manton, 12 R. L
'442, .... 542, 1014
V. Talbot, 95 U. S. 289;

S. 0. 3 Colo. 639, - . 45, 63

Bed.]

TABLE OF CASES.

[Ben.

Bedford v, Brutton, 1 Bing.

N. C. 399, - - - 878
V. Deakin, 2 B. & Aid.

210; 3 Stark. 178, - - 5S8, 583
Beebe v. Rogers, 3 G. Greene

(Iowa), 319, - - - - 440
Beecher v. Bush, 45 Mich. 188

(40 Am. Eep. 465), 17, 38, 30, 45,

ml 61

V. Stevens, 43 Conn. 587, 184,

185, 557
Beesley v. Lawrence, 11 Paige,'

581, 843

Beevan v. Lewis, 1 Sm. 376, - 1109
Beitman v. McKenzie, 11 Ohio

Weekly Law Bulletin, 372, 560
Belcher v. Conner, 1 S. Ca. 88, 2,

127

V. "Vandusen, 37 111. 281, - 278

V. Whittemorej 134 Mass.

330, .... - 266, 306
Belknap v. Cram, 11 Oh. 411, 543,

560
- — V. Wendell, 1 Foster (21

N. H.), 175, - - ■ - 27

Bell V. Barker, 16 Gray, 63, - 519

V. EUis, 33 Cal. 620, - 661

V. Faber, 1 Grant's Cas.

(Pa.) 31, - - '- 347, 349

V. Hall, 5 N. J. Eq. 477, - 534

V. Hare, 12 Heisk. 615, - 43

V. Locke, 3 Paige, 75, - 674

V. Morrison, 1 Pet. 351, - 703

V. Newman, 5 Serg. & R.

"78, - - - - 827, 828

V. Norwood, 7 La. 95, - 655

V. Thompson, 34 111. 539, 1165

Bellairs v. Ebsworth, 3 Camp.

53, '655

Bellerville Sav. Bk. v. Wins-
low, 30 Fed. Eep. 488, - - 456
Belote V. Wayne, 7 Terg.

,(Tenn.)534, - "- - - 703
Belton V. Fisher, 44 111. 33, 722, 724
Bemis v. Boston, 14 Allen,

366, ■ 177

T. Hoseley, 16 Gray, 63, - 385

Benchley v. Chapin, 10 Cush.

173, 457

Benedict v. Davis, 2 McLean,

347, 91, 94

V. Thompson, 33 La. Ann.

196, - - - . 329, 345
Benjamin v. Covert, 47 Wis.

375, 95, 97, 150, 608, 609, 1155,

1156

v. Covert, 55 Wis. 157, - 1155,

1156
Benners v. Harrison, 19 Barb.

53, - - - - - , - 150
Bennet v. Marshall, 2 Miles

(Pa.), 436, - - - 380, 688
Bennett's Est. 13 Phila. 331, - 336
Bennett v. Buchan, 61 N. Y.

232 (modifies S.'c. 53 Barb.

578; 5 Abb. Pr. N. S. 412);

S. C. 76 N. Y. 386, - 686, 687

V. CadweU, 70 Pa. St. 253, 430,

537, 640

V. Dean, 35 Mich. 306, - 1188

District Twp. of Colfax,

53 Iowa, 689, - - - 383

V. Frary, 55 Tex. 145, - 1170

V. Holmes, 32 Ind. 108, - 1159

V. Russell, 34 Mo. 524, - 770,

771, 777
V. Scott, 1 Cranch, C. C.

389, 1019

V. Stickney, 17 Vt. 581, 1088

V. Winfield, 4 Heisk.

(Tenn.)440, - - - . 141

V. Woolfolk, 15 Ga. 313, - 115,

131, 907, 939
Benninger v. Gall, 1 C. S. C.
R. 331, - - - - - 1038

V. Hess, 41 Oh. St. 64, - 332,

328, 341, 342, 370, 448, 450, 451

Benson v. Ela, 35 N. H. 403, - 556,

719, 824, 838

V. Hadfield, 4 Hare,

33, - - - - - - 523

V. Ketchum, 14 Md. 331, 43

V. Morgan, 50 Mich. 78, - 141

V. Tilton, 54 N. H. 174, - 875

Ben.]

TABLE OF CASES.

[Big.

Bentley v. Bates, 4 Younge &

C. Ex. 182, 163, 184, 186, 586, 937

V. Craven, 18 Beav. 75, - 303

V. Harris, 10 E. I. 434 (14

Am. Rep. 695), - - 43, 933
V. White, 3 B., Mon. 263

(38 Am. Deo. 185), 339, 374, 700
Benton v. Cliamberlain, 33 Vt.

711, - - - 153, 608, 609
-^ — V. Boberts, 4 La. Ann.

316, - - - - 301, 343
Bentzen v. Zierlein, 4 Mo. 417, 416,

421
Beresford v. Browning, L. E.

20 Eq. 564 (affd. 1 Ch. D. 30), 239,

454

V. Browning, 1 Cli. D. 30, 455,

643
Bergeron v. Eichardott, 55

Wis. 139, 381, 384, 388, 391, 395,

545, 790

Berkey v. Judd, 23 Minn. 387, 933,

Berks v. French, 21 Kan. 238,
Berkshire Woolen Co. v. Juil-

lard, 75 N. Y. 535 (31 Am.

Eep. 488; aff..l3Hun, 506), -

611

453,
453
841

V. Juillard, 13 Hun, 506, -

Bernard v. Torrance, 5 Gill &
J. (Md.) 383, - 153, 156, 539, 607,
608, 609, 1157
— ^v. Wilcox, 3 Johns. Cas.

374, . - - - 719, 722
Bernie v. 'Vandever, 16 Ark.

616, - - - 794,' 801, 968
Berblzheimer v. Strauss, 51 N.
' y. Superior Ct. 96, 716, 724, 735
Berrian, Ee, 6 Ben. 297 (aflfg.

44 How. Pr. 216), - - 825, 835

Berry v. Folkes, 60 Miss. 576, 51,

398, 330, 571, 573, 577, 597, 599, 603,

767, 770, 774, 785, 801

V. Gillis, 17 N. H. 9 (43

Am. Dec. 584), - - - 385

V. Harris, 32 Md. 30, 719, 722,

733, 1104

Berry v. Jon^, 11 Heisk. 206, 770,
771, 772,, 1003
V. Kelly, 4 Robt. (N. Y.)

106, ----- 1108

V. McLean, 11 Md. 92, 532, 636

V. Masters, 18 III. 98, - 920

Berryhill v. McKee, 1 Humph.

31, - - - - 349, 365, 761
Berthold v. Goldsmith, 24

How. 536, - - 23, 43, 70, 257
Besch V. Frolich, 1 Phil. 172;

7 Jur. 73, - - 581, 597

Beste V. His Creditors, 15 La.

Ann. 55, - , - - - 335

Bethel v. Franklin, 57 Mo. 466, 887,

892
Betts V. June, 61 N. Y. 274, - 804,
305, 719, 727
Beudel V. Hettrick, 45 How.

Pr. 198 ; 3 Jones & Sp. 405, 43, 56,
383, 1023
Beulah Park Estate, Ee, L. E. .

15 Eq. 43, - - - - 785
Bevan v. Lewis, 1 Sim. 376, - 439
Bevans v. Sullivan, 4 Gill

(Md.), 383, 770, 909, 983, 1151, 1159
Beveridge v. Hewitt, 8 Bl.

App. 467, - - - - 1151
Biddlecombe v. Bond, 4 Ad.

& E. 333, - - . - 338
Biddulph, Ex parte, 3 DeG. &

Sm. 587, - - - 474, 843
Bid well V. Madison, 10 Minn.

18,' 88

Biernan v. Braches, 14 B^p.

24, - - - , - - 864, 868
Bigelow, In re, 1 Bankr. Eeg.

667, - - - - - 4S7
, In re, 3 Bankr. Eeg. [121]

371; 3 Ben. 146, - - 841

V. Eliot, 1 Cliff. 38, 35, 445, C08

V. Gregory, 73 111. 197, - 5

V. Lehr, 4 Watts, 378, - 538

V. Henniger, 83 Kan. 362, 31 0

Biggs V. Hubert, 14 S. Ca. 620, 436
Bignold, Ex parte, 3 Mont. &

A. 633, 382

Big.]

TABLE OF CASES.

[Bla,

Bignold V, Waterhouse, 1 M.

& S. 255, ... - 395
Bill V. Barker, 16 Gray, 62, - 653

V. Porter, 9 Conn. S3, 434, 1151,

1154, 1163, 11G8
Billings V. Meigs, 53 Barb. 273, 1038,

1047
BiHingsley v. Dawaon, 27

Iowa, 210, - - - 193, 576
Bilton V. Blakely, 6 Grant's
, Ch. (Up. Can.) 575, 685, 689, 715,

'731, 997
Bingham v. Shaw, 16 Grant's

Ch. 373, - - - 987

Bininger v. Clark, 60 Barb.

113; 10 Abb. Pr. (N. S.) 364, 660,

669
Binney v. Le Gals, 19 Barb.

592 ; 1 Abb. Pr. 383, - - 380
BInns V. Waddill, 33 Gratt.

588, - - - 1038, 1046

Birchett v. Boiling, 5 Munf.

(Va.)443, - - 1014

Bird V. Austin, 8 Jones & Sp.

109, - - - - . 709
V. Bird, 77 Me. 499 ; 1 Atl.

Rep. 455, - - - 736

V. Caritat, 8 Johns. 343, - 1036

V. Fake, I Pin. (Wis.) 390, 435,

544, 1033

V. Lake, 1 H. & N. 338, - 677

V. Laaius, 7 Ind. 615, 446

V. Morrison, 13 Wis. 153

[138], - - - 281, 301

V. Pierpoint, 1 Johns. 118, 1026

Birdsall v. Bemiss, 2 La. Ann.

449, ' - - - 455

V. Colie, 10 N. J. Eq. 63, 995

Birdsong v. McLaren, 8 Ga.

521, ----- 1121
Birkett v. Hird, 55 Wis. 650, - 962
V. McGuire, 31 Up. Can.

Com. PI. 480, - - - 497, 534
Birks V. French, 21 Kan. 338, 105,

547
Birley v. Kennedy, 6- New Rep.

395, 972

Birtwhistle v. Woodward, 17
Mo. App. 277, - - 1103, 1113

Bisbee v. Taft, 11 R. L 307, 61, 257,

259

Bischo£E v. Blease, 20 S. Ca.
460, - . . - 1067

Bischoffsheim v. Baltzer, 20
Fed. Rep. 890, - - 733

Bisel V. Hobbs, 6 Blaokf. 479, 156,
199, 445, 1143

Bishop V. Brecles, HofEm. (N.
Y.)Ch. 534, - - - 577, 594

V. Countess of Jersey, 3

Drew. 143, - - - - 475

V. Georgeson, 60 111. 484, 95,

1151

V. Hall, 9 Gray, 430, - 1023

V. Hubbard, 33 Cal. 514, 560,

566, 1131, 1133

Bispham t. Patterson, 3 Mc-
Lean, 87, . - - 700

— - V. Price, 15 How. 163, 960

Bissell V. Adams, '35 Conui
299, - - - 703, 705

V. Ames, 17 Conn. 121, - 933

V. Foss, 114 U. S. 252

(afifg. S. c. as First Nat'l B'k
V. Foss, 4 Fed. Rep. 694, and
2 McCrary, 73), - - - 310

V. Harrington, 18 Hun,

81, - - - 303
V. M. S. & N. L R. R. Cos.

22 N. Y. 358. - - - 133

Bitter v. Rathman, 61 N. if.

513, - - 136, 137

Bitzer v. Shunk, 1 Watts & S.

340 (37 Am. Dec. 469), 377, 379

Bivingsville Cotton Manuf. Co.

V. Bobo, 11 Rich. (S. Ca.) L.

386, ----- 378

Bjornstad, Re, 18 Bankr. Reg.

283, - - - - 560, 1131

Black's Appeal, 89 Pa. St. 201, 289

, 44 Pa. St. 503, 825, 827

Black V. Bird, 1 Hayw. (N.

Ca.) 373, - - - - 381, 381

V. Bush, 7 B. Hon. 210, 717

XXXVll

Bla.]

TABLE OF CASES.

[Blo.

Black V. Campbell, 6 W. Va.

51, 416, 1165

V. MerriU, 65 Cal. 90, - 964

V. Struihers, 11 Iowa, 459, 737,

746
Blaokett v. Weir, 5 B. «& C. 885, 1169
Blackiston's Appeal, 81J^ Pa.

St. 339, 268

BlackweU v. Oaywell, 75 N.

Oa. 213, - - - . 583, 942

V. Rankin, 7 N. J. Eq. 153, 566,

567, 1109

V. Reid, 41 Miss. 103, - 1049

Blain, Ex parte, 12 Ch. D. 532, 1059
Blair v. Bromley, 2 Ph. 354;

5 Hare, 543, - - - -

— V. Johnston, 1 Head, 13, -

T. Snover, 10 N. J. L. 153,

V. Wood, 108 Pa. St. 878,

Blaisdell v. Pray, 68 Me. 369,

474

763
1034

749
900,

903
1166

Blake v. Buchanan, 22 Vt. 548,
V. Dorgan, 1 G. Greene

(Iowa), 537, - - 577, 578, 594
V. Lapgdon, 19 Vt. 485 (47

Am. Dec. 701), - - 1083

• V. Nutter, 19 Me. 16, 186, 391

V. Smiley, 84 Ind, 313, - 835

V. Ward, 137 Mass. 94, - 908

V. Wheaton,- 2 Hayw. (N.

Ca.)109;Tayl. 70, - - 883,884
Blakeley v. Le Duo, 23 Minn.

476, 368

Blakely v. Bennecke, 59 Mo.

193, 75

Blakeney v. Dufaur, 15 Beav.

40, 996

Blaker v. Sands, 29 Kan. 551, 376,
404, 585, 587, 733
Blakly v. Graham, 111 Mass. 8, 861
Blanchard v. Coolidge, 33

Pick. 151, 43, 357, 260, 1107, 1110

V. KauU, 44 Cal. 440, - 4, 7

V. Paschal, 68 Ga. 33 (45

Am. Rep. 474), - - - 1131

V. Pasteur, 2 Hayw. 393, 420,

423

Blasdell v. Souther, 6 Gray,

149,

Blatchley v. Coles, 6 Colorado,

349,

Blaylock's Appeal, 73 Pa. St.

146, . - - - 310, 311
Blew V. Wyatt, 5 0. & P. 397, 531
Blifflns V.Wilson, 113 Mass. 248, 967
Blight V. Ewing, 1 Pittsb. 275,
V. Tobin, 7 Monroe, 613

(18 Am. Dec. 219),
Blin V. Pierce, 20 Vt. 35,
Blinn v. Evans, 34 111. 317, -
Biiss V. Swartz, 7 Lans. 187;

64 Barb. 315,
Blisset v. Daniel, 10 Hare, 493 ;

1 Eq. 484, 341, 343, 433, 433, 913
Block V. Fitohburg R. R. 139

Mass. 308, - - . .
Blodget V. Conklin, 9 How.

Pr. 443,
V. Muskegon (Mich. 1886),

37 N. W..Rep. 686,
Blodgett, Re, 10 Bankr. Reg.

145,
V. Amer. Nat'l Bk. 49

Conn. 9, - - 598, 603

V. Jackson, 40 N. H. 31, - 191

V. Sleeper, 67 Me. 499, 1037

V. Weed, 119 Mass. 315, 315,

353, 356
Bloodgood V. Bruen, 8 N. Y.

363 - - . 703, 706, 750
Bloom V. Helm, 53 Miss. 21, 333,

343, 349, 352, 358
Bloomfield v. Buchanan, 13

Oregon, 108, - - - - 17
V. Buchanan, 14 Oregon,

181, - - ' - . 455, 973
Bloomley v. Grinton, 9 Up.

Can. Q. B. 455, - - 416, 418
Bloss V. Chittenden, 2 Thomp.
•&C. 11, - - - ..

Blount V. Williams, 23 Ark.

374, - ...

Bloxham v. Pell, cited in 3

W. Bl. 999, - . - 16, 47, 55

317

305

43

480
1053

447

101

66

380

176

- 1131

860

869

BI.U.J

TABLE OF CASES.

[Boo.

Bluok V. Capstick, 13 Ch. D.

863, - - - 805, 806

Blue V. Leathers, 15 111. 31, - 59, 61
Blum V. Thomas, 60 Te:^. 158

(16 Eeporter, 733), - - 1058

Blumenthal, Re, 18 Bankr.

Reg. 555. - - - - 43
Blumer, Re, 13 Fed. Rep. 489, 835,

833, 883

, la re, 13 Fed. Rep. 633, 453a,

841
Blunt V. Williams, 38 Ark. 374, 874
Blythe, Ex parte, 16 Ch. D.

620, 836

Boardman, Ex parte, 1 Cox,

375, -■ - - - 835

V. Adams, 5 Iowa, 324, 317, 319

V. Close, 44 Iowa, 438, 316,

317, 770, 775
— r- V. Gore, 15 Mass. 331, 333, .353

V. Keeler, 3 Vt. 65, 43, 1033,

1053
Boast V. Firth, L. R. 4 C. P. 1, 324,

770, 780
Boatmeo's Sav. Instj. v. Mead,

53 Mo. 543, - - 538, 539

Boddam v. Ryley, 1 Bro. C. C.

339 ; 3 id. 3 ; 4 Bro. P. C. 561, 788
Bodenham v. Purchas, 2 B. &

Aid. 39, . . - -■ 499

Bodwell V. Eastman, 106 Mass.

525, - - - - 73, 73, 74
Bofenschen, Succession of, 39
' La. Ann. 711, - - - . 198
Bogejau v. . Gueringer, 14 La.

Ann. 478, - - - - 690
Bogart V. Brown, 5 Pick. 18, 324,

1145
Boggess V. Lilly, 18 Tex. 300, 113,

137
Boggs V. Johnson, 36 W. Va.

831, - - 949, 950

Bogue's Appeal, 83 Pa. St. 101, 1114
Bohler v. Tappan, 1 f'ed. Rep.

469; 1 McCrary, 134,. 715, 719,731
Bohm V. Dunphy, 1 Montana,

333, -'..-- 733

Bohrer v. Drake, 33 Minn. 408, 36,

596, 761
Boire v. McGinn, 8 Oregon,

466, - - - 978, 979, 985
Boisgerard v. Wall, 1 Sm. &

Mar. Ch. 404, - 73, 311, 914

Bolckow V. Foster, 34 Grant's

Ch. (Up. Cam) 333; affd. 35

id. 476, overruling 9 id. 9, 191,
723, 734
V. Foster, 35 Grant's Ch.

(Up. Can.) 476, - .- - 191
Bolitho, Ex parte. Buck. 100, 439,

443
BoUand, Ex parte, Mont. &

Mac. 315 ; 1 Mont. & A. 570, 474 '
Boiling V. Anderson, 4 Baxt.

550, - ... 395 ■

Bolton V. Dickens, 4 Lea, 569, 944,

953
Bonbonus, Ex parte, 8 Ves.

540, - - - 341, 370, 406
Bond V. Aitkin, 6 Watts & S.

165 (40 Am. Deo. 550), 416, 430

V. Bemis, 55 Mo. 524, - 853

V. Gibson, 1 Camp. 185, 348,

« 373

V. Hays, 13 Mass. 34, 864, 888

V. Milbourn, SO W. R. 197, 664,

804

V. Nave, 63 Ind. 505, - 825,

1138, 1151

V. Pittard, 3 M. & W. 357, 55, 56

Bonfield v. Smith, 12 M. & W.

405, - - ,106

Bonis v. Louvrier, 8 La. Ann.

4, 761, 780

BonnaflEe v. Fenner, 6 Sm. &

Mar. 313 (45 Am. Dec. 378), 880,

1136
Bonney v. Stoughton, 18 111.

App. 563, - - - - 943
Bonsall V. Comly, 44 Pa. St.

443, - ... 1131

Booe V. Caldwell, 13 Ind. 12, 94, 437
Booker v. Kirkpatrick, 26,

Gratt. 145, - - - - 583

Boo.]

TABLE OF CASES.

[Bow.

Boor V. Lowrey, 103 Ind. 468, 331,

^33

Boorum v. Ray, 72 Ind. 151, 45i,

1049, 1117, 1119

Booth V. Briscoe, S Q. B. D. 496, 1033

V. Clark, 17 How. 333, - 1005

V. Curtis, 17 W. E. 393;

30 L. T. N. S. 153, - - 659
V. Farmers' & Mech. B'k,

74 N. Y. 228 (afif. 11 Hun,

25S), 453, 453a, 531, 853, 881
V. Jarrett, 53 How. Pr.

169, 674

V. Parks, .1 Moll. (Irish),

465; Beatty, 444, - - 216, 801

V. Quin, 7 Price, 193, - 607

V. Ridley, 8 Up. Can. C.

P. 464, - - - - 524

V. Todd, 8 Tex. 137, - 908

Boothroyd, Re, 14 Bankr. Reg.

223, - - - 1131

Bopp V. ;Fox, 63 111. 540, 180, 283,

290
Borden v. Cuyler, 10 Cush. 476, 841
Boro V. Harris, 13 Lea (Tenn.),

36, 1 - - 155, 1111, 1113

Bosanquet v. Wray, tV Taunt.

597, - . - . 900, 903, 905

Bostick V. Brittain, 25 Ark.

482, - - - - 378

Bostwick V. Isbell, 41 Conn.

305, - - - 1004

Boston & Albany R. ■ R. v.

Pearson, 128 Mass. 445, 72, 73, 74
Boston, etc. Smelting Co. v.

Smith, 13 R. I. 27 (43 Am.

Rep. 3), - - - 33, 47, 1135
Boswell V. Dunning, 5 Har.

(Del.) 331, - -. - 1067

V. Green, 25 N. J. L. 390, 406

Bosworth V. West, 68 Ga. 825, 1095
Botham v. Keefer, 2 Ont. App.

595, - - - - 33

Botif eur V. Wyman, IMcCord,

Ch. 161, .... 964

Botsford V. Kleinhaus, 29

Mich. 332, - 501, 510, 518, 519

Bottomley v. Nuttall, 5 C. B.

(N. S.) 133, - ... 439
Boughner y. Black, 83 Ky. 521, 805,

880, 898
Bouldin v. Page, 24 Mo. 594, 398
Boulton V. First Natl. Bk. 46

Iowa, 273, - . . - 1138
Bourne v. Freeth,- 9 B. & C.

633, . . . - 79, 99
V. Wooldridge, 10 B. Mon.

493, . - - 1079, 1083

Boutelle v. Smith, 116 Mass.

Ill, 677

Bouton V. Bouton, 42 How.

Pr. 11, - - . 971, 973

Bovill V. Hammond, 6 B. & C.

149, - - . 856, 865

V. Wood, 3 M. & S. 25, . 746

Bowas V. Pioneer Tow Line, 3

8a wy. 31, - - . 67, 463
Bowden, Ex parte, 1 Deac, &

Ch.' 135, . 843
V. Schatzell, Bail. (S. Ca.)

Eq. 360 (33 Am. Deo. 170), . 1114
Bowen v. Billings, 13 Neb.

439, . - . . 1103

V. Clark, 1 Biss. 128, 325, 338,

403

V. Crow, 16 Neb. 556, . 454

V. Richardson, 133 Ma.ss.

393, ... Ill, 130
V. Rutherford, 60 lU. 41

(14 Am. Rep. 35), . 94, 1155
V. Troy Portable Mill Co.

31 Iowa, 460, . . - 1055

Bower v. Douglass, 35 Ga. 714, 694,

698
Bowers v. Whittle, 63 N. H.

147 (56 Am. Rep. 499), . . 677
Bowie V. Maddox, 39 Ga.

385, . . . . . 91, 97

Bowin V. Sutherlin, 44 Ala.

278, 1088

Bowker v. Bradford, 140 Mass.

531, 139

V. Gleason (N. J.), 7 Atl.

Rep. 885, - - .257, 25J

Bow.]

TABLE OF CASES.

[Bra.

Bowker v. Smith, 48 N. H. Ill

(3 Am. Rep. 189), ... 847
Bowler V. Huston, 30 Gratt.

266 (32 Am. Rep. 673), 1089, 1092
Bowling V. Dobyns, 5 Dana,

434, - . 786, 788

Bowman v. Bailey, 20 S. Ca.

550, - - - 281, 297

: V. Bailey, 10 Vt. 170, - 43, 59

V. Blodgett, 3 Met. 308, - 693

V. Cecil Bank, 3 Grant's

Cas. (Pa.) 33, - 349, 358, 363

V. O'Reilly, 31 Miss. 261, 180

V. Spalding, 3 S. W. Rep.

(Ky.) 911, . - - - 552
Bowne v. Thompson, 1 N. J. L.

3, - - - - 448, 451, 1081
Bowsher v. Watkins, 1 Russ. &

M. 377, 926

Bowyer v. Anderson, 2 Leigh

(Va.), 550, - - - - 45, 46

V. Knapp, 15 W. Va. 277, 537

Boyce v. Coster, 4 Strob. (S.

Ca.) Eq. 25, - . - 184, 395
V.Watson, 3 J. J. Mar.

498, 331

Boyd V. Brown, 2 La. Ann.

318, 868

V. Foot, 5 Bosw. 110, 765, 766,

938, 980

V. McCann, 10 Md. 118, 100,

- 353, 353, 575, 637

V. Mynatt, 4 Ala. 79, 86, 213,

780, 876

V. Plumb, 7 Wend. 309, - 349,

363

V. Ricketts, 60 Miss. 62, - 150,

608, 1147, 1151, 1157
Boyer v. Knapp, 15 W. Va.

277, ... - 533

Beyers v. Elliott, 7 Humph.

204, - - - 290, 291, 833
Boyle's Estate, Tucker (N. Y.),

4, - - - - - 139, 140
Boyle V. Boyle, 4 B. Mon. 570, 740,

935
V. Skinner, 19 Mo. 83, - 443

Boynton v. Boynton, 10 Vt.
107, - - . - 237j 739

V. Page, 13 Wend. 425, - 277,

547
Bozon V, Farlow, 1 Mer.

-459, - .... 668

Bracken v. Ellsworth, 64 Ga.

343, . . 173, 507, 510, 511
V. Kennedy, 4 111. 558, 851,

889, 899, 931, 936

V. March, 4 Mo. 74, 446, 449

Braches v. Anderson, 14 Mo.

441, .... 449

Brackett v. Sears, 15 Mich.

344, ■ . . - 1079, 1080
Bradbury, Ex' parte, 4 Deac.

203, ... 503

Bradbury v. Barnes. 19 Cal.

130, . . . 308, 311

V. Dickens, 37 Beav. 53, - 660,

664, 990

V. Smith, 31 Me. 117, 356, 358,

1105
Bradford v. Johnson, 44 Tex.

381, . - 138
V. Kimberly, 3 Johns. Ch.

431, . . - 770, 777

V. Peckham, 9 R. I. 250, . 677

V. Spyker, 33 Ala. 134, - 943

V. Taylor, 61 Tex. 508, 1074

Bradley, Re, 3 Biss. 515, . 453a, 841

V. Brigham, 137 Mass.

545, - . . 783, 783, 788

V. Camp, 1 Kirby (Conn.),

77 (1 Am. Dec. 13), 333, 618, 681,

693

V. Chamberlin, 16 Vt. 613, 216,

771
V. Harkness, 26 Cal. 69, 59

— V. Linn, 19 111. App. 332, 329,

343

V. Richardson, 33 Vt. 730, 499

V. White, 10 Met. 303 (43

Am. Deo. 435), - - 43

Bradner v. Strang, 89 N. Y.

299 (aflEd. in S. v. B. 114 U.S.

555), 472

xli

Bea.]

TABLE OF CASES.

[Bel

Bradshaw v. Apperson, 36 Tex.

133, .... 43, 156
Bradstreet v. Baer, 41 Md. 19, 136,

137
Brady v. Brady, 8 Allen, 101, - 1170
V. Colhoun, 1 Pa. (Penrose

& Watts) 140, - - 58, 64
V. Hill, 1 Mo. 315 (13 Am.

Dec. 503), .... 700

V. Reed, 87 Pa. St. Ill, . 1170

Brainerd v. Bertram, 5 Abb.

N. Cas. 102, .... 1028
Braithwalte v. Skotield, 9 B. &

C. 401, 75

Braley v. Goddard, 49 Me. 115, 37
Brampton v. Bed(foes, 13 C. B.

N. S. 538, - ... 677
Branch v. Adam, 51 Ga. 113, 1103,

1113

V. Wiseman, 51 Ind. 1, 1101,

1105
Brand v. Boulcott, 2 B. & P.

285, - - - 1021

Brande v. Bond, 63 Wig. 140, 1106
Brandon v'. Nesbitt, 6 T. R. 23, 110
Brannon v, Hursell, 112 Mass.

63, - .... 1153

Brasfleld v. French, 59 Miss.

632, - - 52, 136, 600, 601, 603
Brasier v. Hudson, 9 Sim. 1, 381,

681, 726
Bi-assfield v. Brown, 4 Rich.

(S. Ca.) L. 398, ... 873
Braun's Appeal, 105 Pa. St.

414, 229

Braxton v. State, 25 lud. 82, 749
Bray v. Grain, 59 Tex. 649, - 489

V. Fromont, 6 Madd. 5, 158, 164,

i 167

V. Morse, 41 Wis. 343, - 384

-L- V. SeUgman, 75 Mo. 31, - 1130
Brayley v. Goflf, 40 Iowa, 76, 383

V. Hedges, 52 Iowa, 623, 344,

368
Brazee v. Woods, 35 Tex. 302, 634,

640, 647
268

Bread v. Lynn, 126 Mass. 367,

Brealsford v. Meade, 1 Yeates,

488, 1125

Brecher v. Fox, 1 Fed. Rep.

273, 566

Breckinridge v. Shrieve, 4

Dana (Ky.), 375, 329, 334, 371

Bredow v. Mut. Sav. Inst. 28

Mo. 181, 690, 718, 731, 783

Breed v. Judd, 1 Gray, 455, - 144
Breen v. Richardson, 6 Colo-
rado, 605, - - - 300, 731
Brenchley, Ex parte, 2 Gl. &

J. 127, £l06

Brent v. Davis, 9 Md. 217, 322, 823
Breslin v. Bro\<rn, 24 Oh. St.

565, 2, 112

Bret V. Beckwith, 3 Jur. N. S.

31, - - - . 27

Brettel v. Williams, 4 Exch.

633, .... 321, 349
Brewer v. Browne, 68 Ala. 210, 181,
285, 395, 297, 948, 948, 949
V. Norcross, 17 N. J. Bq.

219, . ... 934
V. Worthington, 10 Allen,

329, 636

V. Yorke, 46 L. T. N. S.

289, - 805, 309

Brewing v. Berryman, 15 New

Brunswick, 515, - 463, 468, 471
Brewster v. Hammet, 4 Conn.

540, . - 1109, 1110

V. Hardeman, Dudley

(Ga.), 138, - . 700, 705

V. Mott, 5 m. 378, 427, 629, 632

1037, 1038,. 1044, 1046

V. Sterrett, 33 Pa. St. 115, 1169

Brice's Case. See Devaynes v.

Noble.
Brickhouse v. Hunter, 4 Hen.

& M. (Va.) 363, - - 978, 982
Bridenbecker v. Mason, 16

How. Pr. 203, . 377

Bridge v. Gray, 14 Pick. 55 (25

Am. Dec. 358), - - .701

V. McCullough, 27 Ala.

661, .... 835, 838

xlil

Bki.]

TABLE OF CASES.

[Beo.

Bridge v. Swaio, 3-Redf. (N.

Y.) 487, - - . . 714, 750
Bridges v. Sprague, 57 Me. 543, 45, 59
Brien v. Harriman, 1 Tenn.

Ch. 467, - - , . - 593

Brierly v. Cripps, 7, C. & P.

709, , - - 858, 861

Briggs V. Bower, 5 Up. Can.

Q. B. (Old. Ser.) 673, - - 1022

V. Briggs, 15 N. Y. 471

(aflf. s. C. 20 Barb. 477), - 707

Y. Daugherty, 48 Ind. 247, 849

V. Hubert, 14 S. Ca. 620, 317,

373, 439, 430
V. Leitelt, 41 Mich. 79, 179

V. Vanderbilt, 19 Barb.

223, - - - . 66, 134
Brighatn v. Ciarlr, 100 Mass.

430, - - - - 33, 1144

V. Dana, 29 Vt. 1, - 49, 309,

766, 793
V. Smith, 3 E. & A. (Up.

Can.) 46, - . - 133

Bright V. Sampson, 30 Tex. 31, 1090
Brinegarv. Griffin, 3 La. Ann.

154, ' 894

Brink v. New Amsterdam F.

Ins. Co. 5 Eobt. (N. Y.) 104, 78,
336, 333, 409
BrinkerhoflE V. Marvin, 5 Johns.

Ch. 330, - - - 189

Brinkley v. Harkins, 48 Tex.

335, .- - - - 33, 35, 815
Brinleyv. Kupfer, 6Pick. 179, 864
Brisban v. Boyd, 4 Paige, 17, 84,

607, 700
Bristol V. Sprague, 8 Wend.

433, 611

Bristow V. Taylor, 2 Stark. 50, 681,

684
Broaddus v. Evans, 63 N. Ca.

633, - - - 383, 411, 510
Brock V. Bateman, 25 Oh. St.

609 (15 Am. Law Reg. N. S.

216), - - - 837, 832, 833
Brockman v. Aulger, 12 111.

377, .... 968,978

Brockway v. Burnap, 16 Barb.

309 (12 Barb. 347), - 16, 43

Broda v. Green wald, 66 Ala.

533, 849

Bromley v. Elliot, 38 N. H.

287, - 23, 30, 33, 150, 323, 323, 334
Brook V. Enderby, 2 Brod. &

B. 70, , 497
Brooke v. Evans, 5 Watts, 196,, 80.
446, 507, 508
V. Garrod, 3 DeG. & J. 63 ;

3 K. & J. 608, - 249

V. Washington, 8 Gratt.

248 (56 Am. Dec. 143), 150, 281,

801, 344, 374, 432

Brooks V. Brooks, 12 Heisk. 13, 714,

738, 828

V. McKinney, 5 111. 309, 1169

V. Martin, 3 Wall. 70, 135, 309

V. Sullivan, 33 Wis. 444, 338,

339
Broome, Ex parte, 1 Rose, 69,

(decree in 1 Coll. 598, note), 595,
808, 844
Brothers, The, 7 Fed. Rep. 878 ;

5 Hughes, 282, - 908

Brougham v. Balfour, 3 Up.

Can. C. P. 72, - - 1034

Broughton v. Broughton, 44 L.

J. Ch. 536 ; 23 W. R. 990, - 661
Brower v. Creditors, 11 La.

Ann. 114, - - 52
Brown's Appeal, 17 Pa. St. 480, 155
, 89 Pa. St. 139 (Brown's

Estate, 11 Phila. 127), 770,771,
786, 794, 801
Brown, Ex parte, cited in 1

Atk. 335, - - - . 440

v. Agnew, 6 W. & S.

238, ... - 583,86,6

V. Allen, 35 Iowa, 306, 733,

734, 1170

V. Atkinson, 91 N. Ca. 389, 1153

V. Belches, 1 Wash. (Va.)

9, - - - 1093

V. Birdsall, 29 Barb. 549, 151,

1052

xliii

Bro.]

TABLE OF CASES.

[Brt.

Brown v. Black, 96 Pa. St. 483,
6 Jones (N.

531,
532

V. Bostian,

Ca.), L. 1, - - - - 1016

V. Brabham, 3 Oh. 375, - 491

V. Broach, 53 Miss. 586, 849,

694, 695

V. Brown, 4 Taunt. 753, 1167

V. Byers, 16 M. & W. 353, 829

V. Chancellor, 61 Tex. 487, 136,

189, 588, 695
V. Cinqmars, 2 Up. Can.

Prac. Eep. 205, - - - 378
-^- V. Clark, 14 Pa. St. 469, - 695

V. Crandall, 11 Conn. 93, 1155

V. Dale, 9 Ch. D. 78, - 181

V. De Tastet, Jacob, 384 ;

4 Russ. 126, 164, 167, 773, 794

V. Fitch, 33 N. J. L. 418, 346

V. Gellatly, 31 Beav. 343, 748

V. Gordon, 16 Beav. 303, - 706

V. Hartford F. Ins. Co.

117 Mass. 479, 143, 383, 409

V. Haynes, 6 Jones, Eq.

(N. Ca.) 49, 237, 544, 917,, 918, 983

V. Hicks, 8 Fed. Rep. 155, 533

V. Hicks, 24 Fed. Rep. 811, 48

V. Higginbotham, 5 Leigh

(Va.), 583 (27 Am. Dec. 618), 61,
679, 693

V. Hurd, 41 111. 131, 1165, 1168

V. Jaquette, 94 Pa. St. 113

(39 Am. Rep. 770), - - 45, 61

■ V. Jewett, 18 N. H. 330, -

■ V. Jones, 18 N. H. 380, -

■ V. Kidger, 3 H. & N. 853,

341,

186,
195
135
839,
370

V. Lawrence, 5 Conn. 397, 199,

381, 383, 439

V. Leonard, 3 Chit. 130, 334, 835

V. O'Brien, 4 Neb. 195, 1149

V. Overstreet, 4 MoCord,

79, - - - 1086

V. Pickard (Utah), 9 Pac.

Eep. 573, - 101, 201, 1094
V. Rains, 53 Iowa, 81, 1151, 1155

Brown v. Bobbins, 8 N. H. 64, 62

V. Shackelford, 53 Mo.

133, - . - - 790,791

V. Tapscott, 6 M. & W.

119, - - - 56, 852, 876

V. Torver, Minor (Ala,),

370, 884

V, Turner. 15 Ala. 832. 397, 697

V. Vidler, cited in 3 Russ.

335, 341, • - - 796

V, Wooton, Cro. Jac. 73, - 585

Brownell v. Brownell, 3 Bro.

C. C. 61 ; 1 Mac. & G. 94, 958, 964
Browning v. Browning, 81

Beav. 316, - - - - 345

V. Grady, 10 Ala. 999, - 386

V. Marvin, 32 Hun, 547, 753

Brownlee v. Allen, 31 Mo. 133, 38 .
Brownson v. Metcalfe, 1

Handy, 188, - - - 1065

Brozee v. Poyntz, 3 B. Mon.

178, - ,- - - - 538
Bruce v. Hastings, 41 Vt. 380, 43, 63

v. Nickerson, 141 Mass.

. 403, - - - 595

Bruen v. Marquand, 17 Johns.

58, - - - 415

Bruening, In re, 43 Mo. 376, - 734
Brugmian v. McGuire, 33 Ark,

733, - - 101, 109, 524, 1094
Brumskill v. James, 11 N. Y.

394, .... 1094

Brundred v. Muzzy, 35 N. J. L.

368, • - - 38

Brunson v. Morgan, 76 Ala.

593, 296

Brutton v. Burton, 1 Chit. 707, 378
Bry V. Cook, 15 La. Ann. 493, 903
Bryan v. Tooke, 60 Ga. 437, . 847,
363, 507, 509, 1171
Bryant v. Clifford, 37 Vt. 664, 411,

1083

V. Hawkins, 47 Mo. 410, 537,

709

V. Hunter, 6 Bush, 75, 381,

390, 391, 833, 1111, 1163
^ — V. Lord, 19 Minn. 396, 690, 694

xliv

Bet.]

TABLE OF CASES.

[Bum.

Bryant v. Proctor, 14 B. Mon.

363, - - - - - 589
Bryden v. Taylor, 3 Har. & J.

396, . ' . . 11150, 1155
Brydolf v. Wolf, 33 Iowa,

509, 1087

Bryer v. Weston, 16 Me. 361, - 1145,

1154
Bryeon v. Whitehead, 1 Sim,

& Stu. 74, - - - - 657
Buchan v. Sumner, 3 Barb.

Ch. 165, 381, 383, 393, 394, 397,
830, 976, nil
Buchanan v, Comstock, 57

Barb. 568, - - - - 977
V. Curry, 19 Johns. 137 (10

Am. Dec. 300), - - - 336, 583

V. Meisser, 105 111. 638, - 883

Buchoz V. Grandjean, 1 Mich.

367, - - - 336

Buck V. Dowley, 16 Gray, 555, 43, 47

V. Mosley, 34 Miss. 170, 1038, 1046

V. Smith, 3 Colorado, 500, 1159

V. Smith, 39 Mich. 166 (18

Am. Rep. 84), - 1011, 1013

V. Winn, 11 B. Mon. 330, 381,

385, 391, 395, 397
Buck Stove Co. v. Johnson, 7

Lea (Tenn.), 383, - - - 554
Blk khause, Re, 8' Lowell, 331 ;

10 Bankr. Reg. 306, 837, 905, 906
Buckingham V. Hanna, 30 Ind.

110, - - 161, 439
V. Ludlum, 39 N. J. Eq.

345, 181, 540, 786, 788, 935, 955, 971
V. Ludlum, 37 N. J. Eq.

137, 737, 747, 750, 1006

V. Waters, 14 Cal. 146, 657

Buckley, Ex parte^ 14 M. &

W. 469; 1 Ph. 563; S. C. as

Ex parte Clarke, DeGex, 153
(reverses S. C. as Ex parte

Christie, 3 M. D. D. 736), 300, 346

V; Barber, 6 Exch. 164, - 718

V. Buckley, 11 Barb. 43, 397

V. Caiiisle, 3 Cal. 430, - 374

V. J3arrett, 47 Pa. St. 304, 373

Bucklin v. Bucklin, 97 Mass.

356, - - - - - 519
Buckmaster v. Gowen, 81 III.

153, 877

Bucknam v. Barnum, 15 Conn.

67, ..... 85

Buckner v, Calcote, 38 Miss,

433, - - . . 195, 837

V. Lee, 8 Ga. 385, 45, 443, 445

V. Ries, 34 Mo. 357, - - 865

Buoyrus Machine Co., Re, 5

Bankr. Reg. 303, - - - 453a
Buell V. Cole, 54 Barb. 353, 849, 881
Buffalo City Bank v. Howard,

35 N. Y.500, - - - 613, 649
Buffum V. Buflum, 49 Me. 108, 381,

393, 397

V. Seaver, 16 N. H. 160, - 180,

453, 829
Bufkin V. Boyce, 104 Ind. 53, 995
Buford V. Neely, 3 Dev. (N.Ca.)

Eq. 481, ii44, 577, 585,- 770, 773,
796, 937,931
Bulflnch V. Winohenbach, 3

Allen, 161, 37, 1103

Bulkley v. Dayton, 14 Johns.

387, - - - - 388

BuU V. Harris, 18 B. Mon. 195, 335,

' 388, 4B3

V. Lambson, 5 S. Ca. 388, 1093,

1094
V. O'Sullivan, L. R. 6 Q. B.

309, .... 343, 376

V. Schuberth, 3 Md. 38, 36, 43

Bullard v. Kinney, 10 Cal. 60, 853
BuUen v. Sharp, L. R. 1 C. P.

86, - - - 18, 31, 39, 47
BuUiter v. Young, 6 El. & B. 40, 583
Bulloo V. Pailhos, 30 Mart. 173, 43
Bullock V. Ashley, 90 111. 103, 183
V. Chapman, 3 DeG. & Sra.

311, . - - . 673

-^— V. Crockett, 3 Giff. 507, 806, 809

V. Hubbard, 33 Cal. 495, 150,

1114, 1115
Bumpass v. Webb, 1 Stew.
(Ala.) 19 (18 Am. Dec. 84), - 875

xlv

Bun.]

TABLE OF CASES.

[Bub.

Bun V. Morris,'! Caines, 54, 435, 644
Bundy v. Youmans, 44 Mich.

376, - - 455, 789, 785, 973
Bunn V. Morris, 3 Caines, 54, 1034
Bunnel v. Taintor, 4 Conn. 568, 303
BuQton V. Dunn, 54 Me. 153, 635, 643
Burbank v. Wiley, 79 N. Ca.

501, ... - 184, 185

Burchard v. Boyce, 21 Ga. 6,

931,
934
Burckhardt v. Burckhardt, 36

Oh. St. 361 ; 43 id. 474, - 663

Burckle v. Eckart, 1 Den. 337

(aff'd, 8 Den. 379 ; 3 N. Y. 182), 43
Burden v. Burden, 1 Ves. & B.

173. - - 769, 773, 774, 1003

V. Cross, 33 Tex. 685, 1065

V. McElmoyle, Bail. (S.

Ca.) Eq. 375, 946, 953, 955

Burditt V. Grew, 8 Pick. 108, 948

Burdine v. Shelton, 10 Yer. 41, 959,

964
Burdon v. Barkus, 4 Giff. 413

(afled. in 4'l)eG. F. & J. 43),

363.
768

V. Barkus, 4 DeG. F. & J.

43 (affg. 4 Giff. 413), 309, 363, 386,

330, 573, 766, 768, 769, 803, 974

Burfield v. Rouch, 31 Beav. 341, 661

Burgan v. Cahoon, 1 l^enny-

packer (Pa.), 330, - - - 101

V. Lyell, 3 Mich. 103 (55

Am. Deo. 53), 73, 330, 331, 334,

613

Burgen v. Dwinal, 11 Ark. 314, 456,

1051, 1068

Burgess v. Atkins, 5 Blackf.'

337, ... . 1105

V. Merrill, 4 Taunt. 468, - 148

V. Northern B'k of Ky.

4 Bush, 600, . . .343

Burgvvyn v. Hostler, Tayl. (N.

Ca.) 134; 1 Am. Dec. 583, - 750
Burk V. Morrison, 8 B. Mon.

131, .... 1073

Burke v. Maxwell, 81 Pa. St.
139, - - . - - 1080

Burke v. Roper, 79 Ala. 138, 75

Burland v. Nash, 3 F. «& F. 687, 498
Burleigh v. Parton, 31 Tex.

585, . ... 365

V. White, 70 Me. 130, 237, 290,

766, 833, 989
Burley V. Harris, 8 N. H. 333

(39 Am. Dec. 650), . - 883

Burlington & Mo. Eiv. R. R.

V. Dick, 7 Neb. 243, - 1059, 1065
Burls V. Smith, 7 Bing. 705, . 75
Burn V. Burn, 3 Ves. 578, - 416
V. Strong, 14 Grant's Ch.

(Up. Can.) 651, 209, 316, 305, 589
Burnam v. Burnam, 6 Bush,

389, 281

Burnell vT Hunt, 5 Jur. 650, - 1106

V. Minot, 4 Moore, 340 - 000

V. Weld, 59 Me. 423, . 1103

Burnes v. Scott, 117 U. S. 583, 880
Burnet v. Hope, 9 Ontario Rep.

10, 709, 730

V. Howell, 8 Phila. 531, 398

Burnett v. Eufaula Home Ins.

Co. 46 Ala. 11 (7 Am. Rep.

581), - . . - 273
V. Snyder, 76 N. Y. 844

(atfd. 11 J. & Sp. 238); s. c.

81 N. Y. 550 (37 Am. Rep.

527); rev. 13 J. & Sp. 577, 164, 168
V. Snyder, 81 N. Y. 550

(37 Am. Rep. 537; rev. 13 J.

& Sp. 577 ; S. C. 76 N. Y. 344), 33,
164, 166, 168, 586

V. Sullivan, 58 Tex. 535, lt)86,

1093
Burnett Line of Steamers v.

Blackman, 53 Ga. 98,
Burney v. Boone, 32 Ala. 486,

1147
850,
856
Burnham v. Hopkinson, 17 N.

H. 259, 1113

V. Whittier, 5 N. H. 834, 1017

Burnley v. Rice, 18 Tex. 481, 26, ,

439, 439
Burns v. Harris, 67 N. Ca. 140, 1131
V. MoKenzie, 33 Cal. lOt, 700

xlvi

Bde.]

TABLE OF CASES.

[BOT.

Burns v. Mason, 11 Mo. 469, 446, 453a

V. Nottingham, 60 111. 531, 849,

858, 859, 861

V. Parish, 3 B. Men. 8, 440, 451

Y. Pillsbury, 17 N. H. 66, 501

JBurnside v. Fetzner, 63 Mo.

107, 533

V. Merrick, 4 Met. 587, 281,

290, 294, 733

V. Savier, 6 Oregon, 154, 734

Burpee v. Bunn, 22 Oal. 194, 184,

1114
V. Smith, 20 New Bruns-
wick, 408, - - - - 1151
Burr V. De La Vergne, 102 N.

Y. 415, 266

— V. Williams, 20 Ark. 171, 623,
694, 703, 705
Burress v. Blair, 61 Mo. 133, - 633
Burrill v. Daggett (Me. 1885),

1 Atl. Rep. 677, - - 676, 677
BurriB v. Whitner, 3 S. Ca.

510, 536

Burritt v. Dickson, 8 Cal. 113, 56,

890, 510, 511

Burroughs' Appeal, 26 Pa. St.

264, - ■ -

Burrows v. Foster, cited in

Clark V. Leach, 33 Beav. 14,

18,

Burson v. Kincaid, 1 Pa. (Pen.

iSW.), 57,
Burt V. Lathrop, 53 Mich. 106,

V. Wilson, 38 Cal." 682, - 868

Burton v. Baum, 33 Kan. 641, 560,

1133

V. Goodspeed, 69 111. 237, 43

V. Rutherford, 49 Mo. 355, 733

V. Wigley, 1 Bing. N. C.

665, ----- 234

V. Wookey, 6 Madd. 367, 303

Burtus V. Tisdall, 4 Barb. 571, 561,

563, 566
Burwell v. Cawood. See Bur-
well V. Mandeville.

V. Mandeville, 3 How. 560, 580,

598, 600, 601, 610, 750, 1038

443

668

385

75

Burwell v. Springfield, 15 Ala.

273, 1038

Bury V. Allen, 1 Coll. 589, 591, 694,
595, 780, 805, 806, 809

— V. Bedford, 4 De G. J. &

Sm. 352, . - - - 675

V. Harris, 23 Md. 30, - 719

Busby V. Chenault, 13 B. Mon.

554, ■ 845

Busfleld V. Wheeler, 14 Allen,

139, 347

Bush V. Bush, 33 Kan. 556, - 484

V. CJark, 127 Mass. Ill, - 718,

825, 828

V, Crawford, 7 Bankr.

Reg. 1399, - - - - 353

V. Guion, 6 La. Ann. 797, 764,

765

V. Linthicum, 59 Md. 344, 143,

144, 147
Butchart v. Dresser, 4 De G.
M. & G. 543; 10 Hare, 468, 693,
707. 730, 731
Butcher, Ex parte, 13 Ch. D.

465, 563

V. Forman, 6 Hill, 583, - 1167

Butler V. American Toy Co. 46

, Conn. 136, - 134,332,323,580

V. Burleson, 16 Vt. 176, - 676,

678

V. Finck, 21 Hun, 210, 43, 1135

V. Henry, 43 Ark. 651, - 507,

1159

V. Klrby, 53 Wis. 188, - 748

V. Stocking, 8 N. Y. 408, 349,

362, 365
Butner v. Lemly, 5 Jones' Eq.

(N. Ca.) 148, - - - 770, 775
Butterfield, Ex parte, De Gex,
570, - - - - 843, 844

V. Beardsley, 28 Mich.

413, - - - - 73, 74, 931

V. Hemsley, 12 Gray, 336, 305,

349, 488

V. Lathrop,, 71 Pa. St. 335, 68

Button V. Hampson, Wright
(O.), 93, .... 419

D

xlvii

But.]

TABLE OF CASES.

[Cam,

Butts V. Genung, 5 Paige, 254, 749,

750
-^ — V. Tiffany, 21 Pick. 95, - 1146
Buxton V. Edwards, 134 Mass.

567, - 519, 539, 701, 705

V. Lister, 3 Atk. 383, - 1010

Buzard v. First Nat'l B'k (Tex.

1886), 2 S. W. Rep. 54, 23, 43, 47
Byam v. Biokford, 140 Mass.

31, 296

Bybee v. Hawkett, 12 Fed. Rep.

649; SSawy. 176, - 164,168
Byers v, Bourret, 64 Cal. 73, - 129
V. Van Deusen, 5 Wend.

268, 234

Byington v. Gaff, 44 111. 510, - 199
V. Miss. & Mo. Riv. R. R.

11 Iowa, 502, - 1061
V. Woodward, 9 Iowa,

360, - - , - - - 1159
Byrd v. Charles, 3 S. Ca. 353, 1081

V. Fox, 8 Mo. 574, - 865, 870

Byrne, Re, Bankr. Reg. 464, - 832

c.

Cabaniss v. Clark, 31 Miss.

423, 546

Cabell V. Vaughan, 1 Saund.

291, .... 1016

Cadwallader V. Blair, -18 Iowa,

420, - - - 507

V. Kroesen, 22 Md. 300, 411,

1044
Cady V. Kyle, 47 Mo. 346, 330; 331
V. Shepherd, 11 Pick. 400

(22 Am. Dec. 379), - 416; 701, 707

V. Smith, 13 Neb. 638, - 1065

Gaboon v. Hobart, 88 Vt. 244, 631,

7b7
Calder v. Rutherford, 3 Brod.

& Bing. 803; 7 J. B. Moore,

158, .... 714,746
Caldicott V. Griffiths, 8 Exch.

898, 75

Caldwell v. Auger, 4 Minn,

217, 1105

Caldwell v . Bloomington Mfg.

Co. 17 Neb. 489, 189, 562, 563, 929

V. Hartupee, 70 Pa. St. 74, 1080

V. Leiber, 7 Paige, 483, - 269,

763, 770, 777

V. Parmer. 56 Ala. 405, 291,

293

V. Scott, 54 N. H. 414, - 563,

1045, 1146

V. Sithens, 5 Blackf. 99, - 197

V. Stileman, 1 Rawle, 313, 610,

70S, 747, 750
Calhoun v. Albin, 48 Mo. 304, 900,

904
Calkins v. Smith, 48 N. Y. 614 895,

(8 Am. Rep. 575), 896

Callahan v. DonoUy, 45 Cal.

153, - - - - 676

Callender v. Robinson, 96 Pa.

St. 454, - 155.

Calloway v. Tate, 1 Hen. & M.

(Va.)9, .... 978

Callum V. Bloodgood, 15 Ala.

34, - - - 401

Calvert v. Marlow, 6 Ala. 337, 716

V. Marlow, 18 Ala. 67, 716, 722,

V. Miller, 94 N. Ca. 600, 738,

731, 773
Calvit V. Markham, 3 How.

(Miss.) 343, - - 900, 905

Cambefort v. Chapman, 19 Q.

B. D. 339, - - - - 535
Camblat v. Tupery, 3 La.

Ann. 10, - - . - - 853
Cambridge Water Wks. v.

Somerville Dyeing, etc. Co.

14 Gray, 193, - . . ' . 5
Cameron v. Biokford, 11 Ont.

App. 53, - 110, 117, 130, 800
V. Canieo, 9 Bankr. Reg.

527, 173

V. Francisco, 26 Oh. St,

190, - - - 770, 773, 774
V. Stevenson, 12 Up. Can.

C. P. 889, - - - 338, 583
V. Watson, 10 Rich. Eq.

64, - - - 761, 763, 816, 980

xlviii

Cam.]

TABLE OF CASES.

[Cab.

Cammack v. Johnson, 2 N. J.

Eq. 163, - 153, 154, 155, 840, 1109
Camp V. Eraser, 4 Demarest

(N. Y.), 213, - - - - 715
V. Grant, 31 Conn. 41 (54

Am. Dec. 331), 749, 826, 828'
V. Mayer, 47 Ga. 414, 555

V. Montgomery, 74 Ga.

(1886), - ; - - 56

V. Page, 43 Vt. 789, - - 565

Campbell v. Blanke, 13 Kan.'

63, - ... 1067

V. Bowen, 49 Ga. 417, 335, 1094

▼. Campbell, 7 CI. & Fin.

166, 761

V. Campbell, 30 N. J. Eq.

415, - ■ - - - 297, 281
V. Colorado Coal and Iron

Co. 9 Colorado, 60, - 163, 195
V. Coquard, 16 Mo. App.

552,, - ' - - - 784

V. Dent, 54 Mo. 335, 23, 45,

1149, 1153, 1158
V. Genet, 2 Hilt. 290, - 1079

V. Hastings, 29 Ark. 512, 95,

159, 1146, 1147, 1151, 1155

Hood, 6 Mo. 311, - 109, 1023,

1139, 1145

V. Lacock, 40 Pa. St. 448, 508

V. Mathews, 6 "Wend. 551, 413

V. Moore, 3 Wis. 767, - 1136

V. Mullett, 3 Swanst. 551, 70,

269, 644
V. Pedan, 3 Up. Can. L. J.

68, 1113

V. Stewart, 34 111. 151, 543, 763

V. Whitley, S9 Ala. 173, - 86

Canada v. Barksdale, 76 Va.

899, . - - - 33, 974
Canada Lead Mine Co. v.

Walker, 11 Lower Canada,

433, .... 377, 380

Caaal Co. v. Gordop, 6 Wall

~r,61, - ■ - - - 376, 383

Candler v. Candler, Jac. 335;

6Madd. 141, 110

V, Sta'nge, 53 Mich. 479, 970

Canfield v. Hard, 6 Conn. 180, 111,

716
Cannon v. Copeland, 43 Ala.

201, .... 785,736

V. Dunlap, 64 Ga. 680, - 456,

1119

V. Wildm'an, 28 Conn. 472, 325,

326, 384, 680, 683
Cannop v. Levy, 11 Q. B. 769, 459
Canon v. Campbell, 18 Pa.

St. 164, -. - . . *- 1169
Cape Sable Company's Case, 3

Bland (Md. Ch.), 606, - 577, 581
Capelle v. HaU, 13 Bankr. Reg.

1, - - ... 848

Capen v. Barrows, 1 Gray, 376, 863
872, 873, 889
Card V. Phoenix Ins. Co. 4 Mo.

App. 424, .... 271
Carey v. Bright, 58 Pa. St. 70, 1058
V. Burruss, 20 W. Va. 571

(43 Am. Rep. 790), - 186, 137

Oarf rae y. Vanbuskirk, 1 Grant's

Ch. (Up. Can.) 539, - 1151

Cargill V. Corby, 15 Mo. 435, 833,

328, 343
Carillon v. Thomas, 6 Mo. App.

573, ... . 1105

Carl V. Knott, 16 Iowa, 379, 639

Carleton v. Jenness, 42 Mich.

110, 737

Carlew v. Drury, 1 Ves. & B.

157, - - - - 73

Carley v. Jepkins, 46 Vt. 731, 334
Carlin v. Donegan, 15 Kan.

495, - - 761, 780, 987, 969

C9,rlisle v. Mulhern, 19 Mo.

56, - - ... 281
T. Niagara Dock Co. 5

Up. Can. Q. B. (Old Ser.) 660, 826,

381

V. Tenbrook, 57 Ind. 539, 231,

815
Carlon ,v. RufEner, 12 W. Va.

297,' .... 1086, 1093

Carlton v, Cummings, 51 Ind.

478, .... 571, 80

xlix

Car.]

TABLE OF CASES.

[Cas.

Carlton V. Ludlow Woolen Mill,

27 Vt. 496, 703, 704, 705, 1155, 1158
— - V. Ludlow Woolen Mill,

28 Vt. 504, - - 704, 705, 1150

V. Mays, 8 W. Va. 245, 1170

Carlyle v. Plumer, 11 Wis. 96, 1143
Carmichael v. Greer,' 55 Ga.

116, - - - 616, 1144, 1154
Carnes v. White, 15 Gray, 378, 334,

372, 406
Carney»v. Hotchkiss, 48, Mich.

276, - - - - 199, 441

Carpenter, Ex parte, 1 Mont.

& Mac. 1, - - - 560, 846

V. Wells, 65 ni. 451, - 869

Carper v. Hawkins, 8 W. Va.

291, 973

Carr v. Catlin, 13 Kan. 393, 738, 734

V. Leavitt, 54 Mich. 540, - 301

V. Roberts, .5 B. & Ad. 78, 638,

640

V. Smith, 5 Q. B. 138, - 861

V. Wilkins, 44 Tex. 434, - 1025

Carrere v. Spoflford, 46 How,

Pr. 394, - - 714, 715, 746

Carrier v. Cameron, 31 Mich.

373 (18 Am. Rep. 192), 341, 361,

1069
Carrillon v. Thomas, 6 Mp.

App. 574, - - - - 1101
Carrington v. Cantillon, Bunb.

107, 1085

Carrithers v. Jarrel, 20 Ga. 842, 228,

481
Carroll v, Alston, 1 S. Ca. 7, 599, 798

V. Evans, 27 Tex. 262, 585, 950

V. Gayarre, 15 La. Ann.

671, - - - - 704

V. Martin, 35 Ga. 261, - 1003

Carruthers v, Ardagh, 20

Grant's Ch. (Up. Can.) 579, 538
Carson v. Byers, 67 Iowa, 606, 453
Carter, Ex parte, 8 Gl. & J.

233.

V. Adamson, 21 Ark. 287,

843
636,
689

V. BaUey, 64 Me. 458,

Carter v. Beeman, 6 Jones (N.
Ca.), L. 44, - - 427, 429 ,

V. Bradley, 58 111. 101, 974, 975

- — V. Connell, 1 Whart. 393, 385,
1162, 1166

■ V. Currie, 5 Call (Va.),

158, 714

V. Douglass, 2 Ala. 499, - 1155

— V. Galloway, 36 La. Ann.

473, 566

V. Lipsey, 70 Ga. 417, - 486

V. Pomeroy, 30 Ind. 438, 698

V. Roland, 53 Tex. 540, - 584,

801, 1111, 1112

V. Southhall, 5 M. & W.

128, - . - : - 397

V. Whalley, 1 B. & Ad. 11, 608,

609, 1157
Carver v. Dows, 40 111. 374, - 348
Gary v. Williams, 1 Duer, 667, 277.

894
Casco Bank v. Hills, 16 Me.

155, 94

Case V. Abeel, 1 Paige, 393, - 744

V. Baldwin. 136 Mass. 90, 1147 '

V. Beauregard, 1 Woods,

C. C. 135 (99 U. S. 119), 486, 560,

824

V. Beauregai'd, 99 TJ. S.

119 (1 Woods, C. C. 125), 560, 824

V. Cushman, 3 Watts & S.

644 (39 Am. Dec. 47), 632, 644, 961

V. Fish, 58 Wis. 56, 105-7, 114

V. Maxey, 6 Cal. 276, - 850

Casebolt v. Ackennan, 46 N. J.

L. 169, 705

Casey v. Brush, 2 Caines, 393, 849

V. Carver, 42 111. 225, 383, 428,

1037
Cash v. Earnshaw, 66 111. 402, 591,

592

v. Tozer, IWatts&S. 519, 377,

378
Cassels v. Stewart, L. R. 6 App.

Cas. 64, 308

Cassidy v. Hall, 97 N. Y. 159, 23,
86, 47, 91, 95, 101

1

Cas.]

TABLE OF CASES.

[Cha,

Castle V. BuUard, 23 How. 172, 474,

• 480, 1094

— — V. Reynolds, 10 Watts, 51, 880,

727
Castly V. Towles, 46 Ala. 600, 923
■Caswell V, Cooper, 18 EI.

532, - . - - - 892

V. Howard, 16 Pick. 562, 549

Catlin V. Gilders, 3 Ala. 536, 2, 819,

698
Caton, In re, 24 Up. Can. C.

P. 308, 562

Catron v. Shepherd, 8 Neb.

808, ... - 311, 790
Catskill Bank v. Gray, 14 Barb.

471 (s. 0. at a later stage, 5

Gray, 574), - - - 133, 134

V. Hooper, 5 Gray, 574, - 133,

825

V. MessiDger, 9 Cow. 87, 385

V. Stall, 15 Wend. 364

(affd. in StaU v. Catskill

Bank, 18 id. 466), ^
Caulfield v. Sanders, 17 Cal.

352
401
854

Uausten v. Burke, 3 Har. & G.

295 (18 Am. Dec. 297), -
Causler v. Wharton, 62 Ala.

358, - - - - 301, 1171
Caussey v. Baily, 57 Tex. 665, 1121
Cavander v. Bulteel, L. E. 9

Ch. App. 79, 185, 186, 391, 295

Cavitt V. James, 39 Tex. 189, 731
Cayton v. Hardy, 27 Mo. 536, 401,

403, 404
Cayuga Bank v. Hunt, 3 Hill,

635, 397

Central City Sav. Bank v.

Walker, 66 N. Y. 424 (afif. 5

Hun, 34), - r - - 4. 23
Central Sav. Bank v. Mead,

52 Mo. 546, - - 694,696,727
Central E. E. & Banking Co.

V. Smith, 76 Ala. 572, 1147, 1151,

1155, 1157, 1158, 1160

Chace v. Hinman, 8 Wend. 453, 638,

639, 640

Chadsey v. Harrison, 11 111.

151, - - - 434, 849, 881
ChafEe v. Ludeling, 37 La.

Ann. 607, .... 5

Cha£Ee6 v. Jonesj 19 Pick. 360, 173

Y. Eentfroe, 32Ga. 477, - 1147,

1154
Chaffin V. Chaffln, 3 Dev. &

Bat. Eq. 355, - 861, 630, 934

Chaffraix v. Lafitte, 30 La.

Ann. Pt. I, 631, - - 33, 39, 43

V. Price, 39 La. Ann. 176, 43

Chaflfy, In re, 30 Up. Can. Q.

B. 64, - - - 841, 883, 884
Chalfant v. Grant, '3 Lea

(Tenn.), 118, - - 560, 1131, 1133
Chalk V. Bank, 87 N. Ca. 300, 933
Chamberlain v. Dow, 10 Mich.

819, 609

V. Hite, 5 Watts, 878, - 1019

-^— Y. Jackson, 44 Mich. 820, 1135
V. Madden, 7 Eich. {S. Ca.)

L. 395, - - - 420, 438, 525

V. Walker," 10 Allen, 429, 868,

878
Chamberlin v. Chamberlin, 12

Jones & Sp. (N. Y.) 116, 283, 386
V. Madden, 7 Eich. (S. Ca.)

L. 30, .... 1163
T. Prior, 3 Keyes, 539; 1

Abb. App. Dec. 838, ■ 473a, 897
Chambers v. Clearwater, 1

Keyes, 310; 1 Abb. App.

Dec; 341 (affg. 41 Barb.

200), - - - - - 465

V. Crook, 43 Ala. 171, - 810

V. Howell, 11 Beav. 6, - 743

Chambovet v. Cagney, 35 N.

Y. Superior Ct. 474, - - 139
Champion v. Bostwick, 18

Wend. 175 (31 Am. Dec.

376), - - 67, 257, 463, 463
V. Mumford, Kirby

(Conn.), 170, - - . 341, 1068
Champlin v. Tilley, 3 Day,

808, - - - 1094, 1143, 1154
Chandler, Ex parte,. 9 Ves. 35, 825

CHA.J

TABLE OF CASES.

[Chb.

Chandler v. Brainard, 14 Pick.

385, 79

V. Chandler, 4 Pick. 78, 167,

945, 948

V. Drew, 6 N. H. 469, - 1083

V. Herriok, 19 Johns. 139, 386

V. Higgins, 109 111. 603, - 633

V. Lincoln, 53 111. 74, 1105, 1111

V. Parkes, 8 Esp. 76, - 148

V. Sherman, 16 Fla, 99, 313, 373,

761, 983, 986

V. Wilson, 53 111. 74, - 1112

Channel v. Fassitt, 16 Oh. 166, 164,

166
Channon v. Stewart, 108 111. ,

541, 933

Chapin v. Clemitson, 1 Barb.

311, .... 265, 383

V. Coleman, 11 Pick. 881, 881

Chapline v. Conant, 3 W. Va.

507, - - - - 33, 39, 45
Chapman v. Beckinton, 3 Q.

B. 703, - ■ - -. 580, 649, 651

-^ V. Chapman, 13* R. I. 680, 736
V. Devereux, 33 Vt. 616 (9

Am. Law Eeg. (O. S.) 419), 73, 333.
334,, 446

V. Eames, 67 Me. 453, - 31, 63

- — V. Koops, 3 B. & P. 289, 928

V. Lipscomb, 18 S. Ca. 323, 61

V. Wilson, 1 Rob. (Va.)

267, - ... 26, 1147
Chappell V. Allen, 38 Mo. 313, 531,

690, 691

V. Cox, 18 Md. 513, - 259, 1110

Chardon v. Oliphant, 3 Brev.

183 (6 Am. Dec. 573), - - 701
Charles v. Eshelman, 5 Col-
orado, 107, - 339, 334, 835, 828
Charleston Fruit Co. v. Bond,

36 Fed. Rep. 18, - - - 250
Charlesworth v, Jennings, 34

Beav. 96, - - - - 595
Charlton v. Poulter, cited in

note to 19 Ves. 148, - 314, 990
Charman v. Henshaw, 15 Gray,

293, 191

lii

Charman v. McLane, 1 Oregon,

389, 850

Chase v. Barrett, 4 Paige, 148, 87,

43, 357

V. Bean, §8 N. H. 183, . 1046

V. Buhl Iron Works, 55

Mich. 189, - - - 883,410

V. Deming, 43 N. H. 274, 151,

1053

V. Garvin, 19 Me. 311, - 888

V. Kendall, 6 Ind. 304, - 695

V. Scott, 33 Iowa, 309, - 376

V. Steel, 9 Cal. 64, - - 184

V. Stevens, 19 N. H. 465, 1135,

1150

V. Vaughan, 80 Me. 413, 505,

619
Chavener v. Wood, 3 Oregon,
- 183, - . - - 296

Chazournes v. Edwards, 3

Pick. 5, 362

Cheap V. Cramond, 4 B. & Aid.

663, .... 16, 384
Cheeny v. Clark, 3 Vt. 431, - 75
Cheeseman v. Sturges, 6 Bosw.

520; 9 id. 246, - 791
r v. Wiggins, 1 Thomp. &

C. 595, - - - 739, 923, 987
Cheesman v. Price, 86 Beav.

143, ----- 59l'
Cheetham v.' Ward, 1 B. & P.

630, 385

CheeverV. Lamar, 19 Hun, 130, 978
Chemung Canal Bk. v. Brad-

ner, 44 N. Y. 680, - - 349, 360
Chenango Bank v. Hyde, 4

Cow. 567, ... 368

Cheney v. Newberry, 67 Cal.

126, 129

Chenowith v. Chamberlin, 6

B. Mon. 60 (43 Am. Deo. 145), 173,
849, 358, 363
Cheshire, The, 8 Wall. 231, - 114
Chester v. Dickerson, 64 N. T.

i (13 Am. Rep. 550), (affg. 53

Barb. 349; 45 How. Pr. 326). 150,
279, 399, 303, 473

.Chi.]

TABLE OF CASES.

[CiT.

Chicago V. Garrity, 7 111. App.

474, 661

Chicago, Bui-lington & Quincy
R. R. V. Hoyt, 1 la App.
374, - - - - - 433
Chicago Life Ins. Co. v. Audi-
tor, 101 111. 8^, - - - 661
Chicago Lumber Co. v. Ash-

worth,.26 Kan. 213, - - 296
Child V. Swain, 69 Ind. 330, 873, 897
Childress v. Emory, 8 Wheat.

643, - - . - 1070

Childs V. Hyde, 10 Iowa, 394, 735, 749

V. Seabury, 35 Hun, 548, 645

V. Walker, 3 Allen, 259, 532,

558, 643, 655
Chipley v. Keaton, 65 N. Ca.

534, - . . . 544

Chipman, In re, 14 Johjis. 317;

16 id. 102, - - 1117

Chippendale, Ex parte, 4 De C

M. & G. 19, 320, 706, 769, 785

Chisholm v. Cowles, 43 Ala.

179, - 1135, 1136, 1139

Chissum v. De-wes, 5 Russ. 39, 657
Chittenden v. German Amer.
Bk. 27 Minn. 143, - - - 301

V. Witbeck, 50 Mich. 401, 305,

659,. 768, 794,^798, 976
Choppin V. Wilson, 37 La. Ann.

444, - - - 584, 756

Chouteau v. Barlow, 110 U. S.

238, 944

V. Eaitt, 20 Oh. 183, 26, 153,

1018, 1023, 1158, 1163
Christian v. Crocker, 35 Ark.
337, - . - - 43, 59

V. Ellis, 1 Gratt. 396, - 1114

Christie, Ex parte, 3 M. D. &
De G. 736 (reversed as Ex
parte Clark, DeG. 153 ; S. C.
as Ex parte Buckley, 14 M.
& W. 469 ; 1 Ph. 563), - - 346

V. Clarke, 16 Up. Can.

Com. PI. 544, - - - 668

Christnian v. Baurichter, 10
Phila. 115,

181
liii

Christy v. Sherman, 10 Iowa,

535, - . . . 377, 380
Chubruck v. Vernam, 43 N. Y.

433, - . - . 963, 964
Chuck, Ex parte, 8 Bing. 469, 55,
155, 556, 558
Church V. First Nat'l Bank, 87

111. 68, ... 1037, 1039

V. Knox, 3 Conn. 514, . 1103

V. Sparrow, 5 Wend. 333, 348,

447
Churchill v. Bailey, 13 Me.

64, ..... 1165

V. Bowman, 89 Vt. 518, 565

V. Proctor, 31 Minn. 139, 185,

291, 395, 927
Churchman y. Smith, 6 Whart.

146, - - - 333, 988

Chuvton V. Douglas, H. V.

Johns. 174; 5 Jur. N. S. 887;

38 L. J. Ch. 841, 191, 663, 664, 669,

670, 671

Cilley V. Huse, 40 N. H. 358, 281, 300

V. Van Patten, 58 Mich.

404, ... - 879

Cinnamond v. Greenlee, 10 Mo.
578, .... 70, 875

Citizens' Bank v. Hine, 49 Conn.
236,' - - ' - 33, 507, 509

Citizens' Mut. Ins. Co. v. Ligon,
59 Miss. 305, 53, 53, 603, 737,

741, 1000

City Bk. of Brooklyn v. Dear-
born, 30 N. Y. 344, - - 1160

V. McChesney, 20 N. Y.

340, .... 613, 618
City Bank of New Haven's

Appeal (Conn.), 7 Atl. Eep.

548, - - - 453

City Bank of New Orleans v,

Stagg, 1 Handy, 383, - - 172
City Discount Co. v. McLean,

L. R. 9 C. P. 693, - - 489, 497
City Fire Ins. Co. v. Doll, 35

Md. 89, 257

City of Glasgow Bank v. Mur-

dock, 11 Up. Can. C. P. 138, 361

CLA.J

TABLE OF CASES.

[Cla.

aaflin V. Butterly, 3 Abb. ^r.

446, 1094

Olagett V. Kilbourne, 1 Black,

346, 72, 279, 302, 927, 938, 1111

V. Salmon, 5 Gill & J.

314, 386

Clanton v. Price, 90 N. Ca. 96, 387,

453

Clap, Ee, 2 Lowell, 168, - 601, 739,

746, 794, 828, 933, 929

, 3 Low. 336, - 505, 533, 539

Clapham v. Crabtree,73 Me. 473

(Crabtree v. Clapham, 67 id.

336), 374

Clapp V. Rogers, 13 N. T. 383

(aff. 1 E. D. Smith, 549), 613, 614

V. UpsoD, 13 Wis. 493, - 624

Clark's Appeal, 73 Pa. St. 143, 260
Clark, Ee, 3 D. & R. 260, - 110
V. Allee, 3 Harr. (Del.) 80, 111^

V. Billings, 59 Ind. 508, 505,

519
V. Brooks (Pa. Com. PI.

1887), 19 Weekly Notes, 333, 50?
V. Clark, 4 Porter (Ala.),

9, - - - 635, 686, 687, 879

V. Cullen, 9 Q. B. D. 855, 1066

V. Cushing, 53 Cal. 617,

■ V. Dearborn, 6 Duer, 809,
•V. Dibble, 16 Wend. 601,
■V. Dunnam, 46 Cal. 205,

1101,
1105
362
858
787,
970
1063
150,

V. Evans, 64 Mo. 258,

V. Fletcher, 96 Pa. St. 416,

153, 619, 623

V. Fowler, 57 Cal. 143, - 634

V. Gilbert, 33 Barb. 576, - 43

V. Gridley, 41 Cal. 119, 910, 957

V. Gridley, 49 Cal. 105, 28, 979

V. Holmes, 3 Johns. 148, 151,

1053

V. Houghton, 12 Gray, 38, 184,

201, 407

V. Howe, 23 Me. 560, - 723

V. HuflEaker, 26 Mo. 264, 1142,

1143

Clark V. Hyman, 55 Iowa, 14, 849,

865, 429

V. Johnson, 90 Pa. St. 442, 353

V. Jones, 50 Cal. 435, - 758

V. Kensall, Wright (O.),

480, - . - - 1067, 1154
V. Leach, 33 Beav. 14

(afifd. in 1 De G. J. & Sm.

409), - 216, 218, 241, 663, 667
V. McClelland, 2 Grant's

Cas. (Pa.) 31,- - - 339, 560
V. MoKellar, 13 Up. Can.

C. P. 563, - ... 43

V. Rives, 33 Mo. 579, 401, 406

V. Smith, 52 Vt. 529, 37, 43, 61

V. Sparhawk, 2 Weekly

Notes (Pa.), 115, - 383, 410, 430

V. Stoddard, 8 Ala. 366, - 1088,

1093

V. Taylor. 68 Ala. 453, - 1151

V. Thompson, 43 Tex. 128, 1087

V. Warden, 10 Neb. 87, - 781

V. Watkins, 9 Jur. N. S.

143; 8 L. T. 8; 11 W. R. 819, 677

V. Wilson, 15 N. H. 150, - 1127

V. Wilson, 19 Pa. St. 414, 339,

570, 585, 688
Clarke's Appeal, 107 Pa. St. 436, 551,

965
Clarke, Ex parte, De Gex, 153

(s. C. as Ex parte Buckley, 14

M. & W. 469; 1 Ph. 562);
■ reverses s. c. as Ex parte

Christie, 3 M. D. & D. 736,

, Ex parte, 4 Ves. 677,

-. — V. Gridley, 41 Cal. 119, -
V. Hart, 6 H. L. C. 688

(aflfg. Hart v. Clarke, 6 De G.

M & G. 233, and reversing

19 Beav. 349),
V. Lord Abingdon, 17 Ves.

106, ....
V. Ware, 8 Ky. Law Rep.

438, - - - -

Clarkson v. Carter, 3 Cow. 84,
Clay, Ex parte, 6 Ves. 813, -

200,
346
835

931

241

250

28

1023

825

liv

Cla.]

TABLE OF CASES.

[Coc.

Clay, Ex parte, 2 De G.' M. & G,
230, 833

r V. Grubby 1 Litt. (Ky.)

233, .... 278

V. Van Winkle, 75 Ind.

239, - - - 137, 139

Clayton's Case. See Devaynes

V. Noble.
Claytou V. Kynastonj 3 Salk.

573, - - - - - 385

V. May, 67 Ga. 769, - - 686

V. May, 68 Ga. 27, - 848, 1064,

1130

V. Thompson, 13 Ga. 206, 331

Cleather v. Twisden, 24 Ch. D.

731 ; 28 id. 340, - - - 477
Clegg V. Edmondson, 8 De G.,

M. &G. 787, - - - 305

— 7— V. Fish wick, 1 Mac. & G.

294, - - - 304, 305, 996

V. Houston, 1 Phila. 352, 1131

Cleghorn v. Ins. Bank of

jColumbus, 9 Ga. 319, - 847

V. Johnson, 11 Iowa, 292, 1154

Clement v. British Amer.

Assur. Co. 141 Mass. 298, - 409,
437, 443
V. Brush, 3 Johns. Cas.

180, - - - - 420, 421
V. Foster, 3 Ired. (N. Ca.)

Eq. 213, - - 544, 928, 929

V. Hadlock, 13 N. H. 185, 39, 43

Clements v. Bowes, 1 Drew.

684, 955

M. Bowes, 17 Sim. 167, - 914

V. Hall, 3 De G. & J. 173, 304,

309, 801

V. Jessup, 36 N. J. Eq.

573, - - 256, 5G6, 1111, 1113

V. Lee, 8 Tex. 374, - - 951

V. Mitchell, Phil. (N. Ca.)

Eq. 3, - - - - - 980

V. Norris, 8 Ch. D. 139, - 330

Cleveland v. Woodward, 15

Vt. 303 (40 Am. Dec. 683), - 1053
Cleverdon, Re, 4 Ont, App.

185, - - - 785 786, 846

Click V. Click, Minor (Ala. ), 79, 1091
Clifton V. Howard, 89 Mo. 193, 39
Cline V. Caldwell, 4 La. 137, - 43

V. Wilson, 26 Ark. 154, - 78

Clinton Lumber Co. v. Mitchell,

61 Iowa, 133, - - 1154

Clonah v. Thornton, 31 Minn.

380, - - - .' 854, 1138
Clouch V. Moyer, 33 Kan.

404, 960

Clough, In re, 31 Ch. D. 334, - 731

V. Hoffman, 5 Wend. 499, 635,

640
Coakley v. Weil, 47 Md. 277, - 559,
560, 563, 824
Coalter v. Coalter, 1 Eob. (Va.)

79, - - 943, 943, 945
Cobb V. Abbot, 14 Pick. 289, - 67
V. I. C. R. R. Co. 38 Iowa,

601, - - . . 463, 1034
Cobble V. Tomlinson, 50 Ind.

550, - 293, 300, 580, 715

Cochran v. Cunningham, 16

Ala. 448 (50 Am. Dec. 186), 700,
1035, 1037

V. Perry, 8 Watts & S. 362, 73,

577, 585
Cochrane v. Allen, 58 N. H.

250, .... 858

V. Stewart, 63 Mo. 424, 533, 655

Cock V. Carson, 45 Tex. 439, - 604,

737
V. Evans, 9 Yerg. (Tenn.)

287, - - - - 356

Cockburn v. Thompson, 16

Ves. 331, ... - 1028
Cocke T. Bank of Tenn. 6

Humph. 51, ... 398
V. Branch Bank at Mobile,

3 Ala. 175, - 329, 341, 343, 345

V. Hoffman, 5 Lea, 105, 703, 706

V. Upshaw, 6 Munf. (Va.)

464, 749

Coekerell v. Aucompte, 2 C. B.

N. S. 440, .... 75
Cockrell v. Thompson, 85 Mo.

510, - - - 761, 853, 1081

Iv

Coc]

TABLE OF CASES.

[Col.

Cockroft V. Claflin, 64 Barb.

464 (aff'd without op. 53 N.

Y. 618), - - - 365, 367

Cocks V. Nash, 9 Bing. 341, - 385
Codding, Ee, 9 Fed. Rep. 849, 292
Coddington v. Hunt, 6 Hill,

595, - - - 621, 622, 624

V. Well, 29 N. J. Eq. 504, 766,

770, 785

V. Idell, 30 N. J. Eq. 540, 788

V. Tappan, 26 N. J. Eq.

141, - - 995

Coder v. Hullng, 27 Pa. St. 84, 790
Codman v. Armstrong, 28 Me.

91, - - - - 381, 490

V. Rogers, 10 Pick. 112, - 948,

947, 951, 952
Cody V. Cody, 31 Ga. 619, 585, 1167
Coe V. Cook, 3 "Whart. 569, - 70, 71
Coffee V. Eastland, Cooke

(Tenn.), 158, - 1050, 1072

Coffey V. Brian, 10 Moo. 341

(s. c. as Coffee v. Brian, 3

Bing. 54; former report is

fuller), - - - 876, 878

Coffin's Appeal, 106 Pa. St. 280, 567
Coffin V. Jenkins, 3 Story, C.

C. 108, - - 59

V. McCullougli, 30 Ala.

107, - 558, 567, 645, 824

Coffing V. Taylor, 16 111. 457, 639
Coggswell V. Davis, 65 Vs is.

191, - - - 623, 627, 1156

V. Wilson, 11 Oregon,

371, 86

Coit V. Owen, 3 Dessaus. 456, - 1160
Colbeck, In re, Buck, 48, - 65

Cole V. Butler, 24 Mo. App. 76, ,95

V. Moxley, 12 W. Va. 730, 27,

572, 577, 796

V. Reynolds, 18 N. Y. 74, 900,

904, 905, 1037
Colehour v. Coolbaugh, 81 111.

29, 976

Coleman v. Bellhouse, 9 Up.

Can. C. P. 31, 323, 458, 459
V. Coleman, 78 Ind. 344, 5, 531

Coleman v. Coleman, 13 Rich.

(S. Ca.) L. 188, - - 879, 893

V. Darling, 66 Wis. 155, - 338,

339

V. Eyre, 45 N. Y. 38, 2, 169,

308
V. Garlington, 3 Spears

(S. Ca.), L. 288, - - - 784
V. Lansing, 65 Barb. 54; 1

Thomp. & C. 8, - - 640

V. Fearce, 26 Minn. 123, - 473,

510, 511
Coles V. Coles, 15 Johns. 159 (8

Am. Deo. 331), - - 287, 868

V. Gurney, 1 Madd. 187, 1065

Colgate V. Colgate, 33 N. J.

Eq. 373, - - - - 744, 801
Colgin V. Cun^mins, 1 Port.

(Ala.) 148, - - 773, 774, 789
Colgrove v. Tallman, 67 N. Y.

95 (38 Am. Rep. 90), (aff. 3

Lans. 97; 5 Hun, 103), - 534

Collamer v. Foster, 26 Vt. 754, 874,
876, 889, 893
Oollender v. Phelan, 79 N. Y.

366, - - - 549, 785, 795

Collett y. Smith (Mass.), 10 N.

E. Rep. 173, - ' - - - 331
Coiley V. Smith, 2 Moo. & Rob.

96, - ' - - - ' - 851'

Collie, Re, 3 Oh. D. 481, - - 842
Collier, Re, 12 Bankr. Reg. 366, 833

-c-. Cairns, 6 Mo. App. 188, 736,

734
V. Chad wick, not yet re-
ported, ... 666

V. Cross, 30 Ga. 1, 1073, 1159,

1160
CoUinge, Ex parte, 4 D. J. &

S. 583, 843

Collins' Appeal, 107 Pa. St. 590, 548
Collins V. Butler, 14 Cal. 233, 268,
1079, 10V4
V. Charleston Mut. F. Ins.

Co. 10 Gray, 155, ^65, 284, 457

V. Collins, 26 Beav. 306, 247

V. Decker, 70 Me'. 23, - 282

Ivi

Col.]

TABLE OF CASES.

[Con.

Collins V. DickinBon, 1 Hg,yw.
(N. Ca.) 240, - - - 571, 577

V. Hood, 4 McLean, 186, 563,

563

V. Jackson, 31 Beav. 645, 181,

269

V. Jackson, 54 Mich. 186, 657

V. Owens, 34 Ala. 66, - 810

V. Warren, 39 Mo. 286, - 290,

291
Collomb V. Caldwell, 16 N. Y.

484, 569

Colloway t. Tate, 1 Hen. & M.

(Va.)9, .... 978

CoUumb V. Read, 34 N. Y. 505, 383,

384, 285, 298

Collyer t. Moulton, 9 R. L 90, 505

Colnaghi v. Bluck, 8 C. & P.

464, - - - - 286, 709-
Colt V. Lasnier, 9 Cow. 320, - 483

V. Wilder, 1 Edw. Cb.

484, .... 504, 510

Columbian GdYernment v.

RothsohUd, 1 Sim. 94, - 938

Columbian Mfg. Co. v. Dutch,

18 Pick. 125, - - - 1167

Colville V. Oilman, 13 W. Va. '

314, 910

Colwell V. Britten, 36 N. W.

Rep. ^38; 59 Mich. 350, - 33

Combs V. Boswell, 1 Dana, 473, 323,'

383, 681, 684

V. Shrewsbury Ins. Co. 39

N. J. Eq. 403, 273

Comer v. .Thompson, 4 Up.

Can. Q. B. (Old Ser.) 256, - 880
Commercial B'k v. Lewis, 13
Sm. & Mar. (Miss.) 236, 401, 406

V. Mitchell, 58 Cal. 42, - 189;

928, 1114

V. Wilkins, 9 Me. 38, 186, 1103

1113, 1114
Commercial Nat. Bank v. Proc-
. tor, 98 111. 558, 343, 376, 401, 633,

726
Commercial & Sav. B'k v. Cor- ,
bett, 5 Sawy. 543, - 560, 1131

Ivii

Commonwealth V. Bennett, 118

Mass. 443, .... 43

V. Sumner, 5 Pick. 860, - 894

Comstock V. Buchanan, 57

Barb. 127, - 303

V. Hier, 73 N. Y. 269, - 1170

V. White, 81 Barb. 301, 974, 977

Conant v. Frary, 49 Ind. 530, 184,

185
Condy v. Mitchell, 37 L. T. N.

S. 766; 26 W. R. 269 (affg. 37

L. T. N. S. 268), - - 675

Conery v. Hayes, 19 La. Ann.

825, .... 700

CoDgdon V. Monroe, 51 Tex,

109, 1094

Conger v. Cotton, 87 Ark. 286, 647
V. Piatt, 25 Up. Can. Q. B.

277, - - ' - 381, 290, £94
Conkey v. Barbour, 22 Ind.

196, ..... 703

Conklin v. Barton, 43 Barb.

435, . . 37, 48, 98, 257
V. Cabanne, 9 Mo. App.

579, .... 1019

V. Harris, 5 Ala. 318, 456, 1119

- — V. Leeds, 58 111., 178, - 375

■ v.^Ogborn, 7 Ind. 653, 694, 695,

698
Conley v. Chapman, 74 Ga.

709, 1089

Connecticut, etc. Ins. Co. v.

Bowler, 1 Holmes, 363, - 653
Connecticut River B'k v.

French, 6 Allen, 313, - 353, 356
Connell, Ex parte, 8 Deac. 201, 261,

842
V. Owen, 4 Up. Can. C. P.

113, .... 711, 780
Conner v. Abbott, 35 Ark. 365, 6

Connolly v. Davidson, 15 Minn.

519, - - 66, 67
Conrad v. Buck, 31W. Va. 396, 531,
583, 695, 708, 704, 769
Conroy v. Campbell, 45 N. Y.
' Superior Ct. 326, - 813 '
V. Woods, 13 Cal. 636, 562, 939

Con.]

TABLE OF CASES.

[Coo.

Consolidated Bank v. State, 5

La. Ann. 44, - - - - 56
Const V. Harris, Turn. & Russ.

496, - 211, 313, 433, 483, 434

Converse v. Citizens' Mut. Ins.

Co. 10 Cush. 87, - - 371, 285

V. McKee, 14 Tex. 20, 410, 988

V. Shambaugh, 4Neb. 876, 1151,

1154
Conwell V. McCowan, 81 111.

285,

V. Sandidge, 5 Dana, 210,

V. Sandidge, 8 Dana, 373,

533
181,

182
188,

639, 631, 810

Cony V. Wheelock, 33 Me. 366, 690

Cook, Ex parte, 3 P. "Wms. 500, 835

■ , Ex parte, Montagu, 338, 837

, In re, 3 Biss. 133, - - 563

V. Arthur, 11 Ired. (N.

Cti.)L-407, -1 - - - 1103
V. Batehellor, 3 B. & P.

150, - . - - 1031

V. Bloodgood, 7 Ala. 688, ' 410

V. Carpenter, 34 Vt. 131, 86

V. Castner, 9 Cush. 266, - 472

V. CoUingridge, Jac. 607

(and decree in 37 Beav. n.), ^- 244,
605, 665, 744, 796, 799, 974, 975

V. Frederick, 77 Ind. 406, 1147

V. Garrett, 1 Brev. (S. Ca.)

388, - - - 856

V. Jenkins, 35 Ga. 113, - 234

V. Jenkins, 79 N. Y. 575, 663

V. Johnson, 47 Conn. 175

(36 Am. Rep. 64), - - - 676

V. Lewis, 36 Me. 340, - 733

V. Martin, 9 Sm. & Mar.

i 379, 1073

' V. Phillips, 16 111. App.

446,

V. Port Fulton, 106 Ind.

170,

V. Rogers, 3 Fpd. Rep. 69

(8 Am. Law Rec. 641), 600, 601
V. Slate Co. 36 Oh. St.

185, - - - 91, 609, 1155

779

175

Cooke, Re, 13 Bankr. Reg. 30, 888
V. Allison, 30 La. Ann.

Part II, 963, - - 434, 761
V. Benbow, 8 De G., J. &

Sm. 1 ; 6 New Rep. 135, 263, 781,

786

V. Cooke, L. R. 4 Eq. 77, 283

V. Seeley, 3 Ex. 746, - 1019

Cookingham v. Lasher, 38

Barb. 656; 3 Keyes, 454

(1 Abb. App. 436), - 151, 1053

Cookson'v. Cookson, 8 Sim.

639, 216

Cooley V. Broad, 29 La. Ann.

345 (29 Am. Rep. 333), - - 17, 67

V. Sears, 35 111. 613, - 275, 1081

Coomer v. Bromley, 5 De G. &

Sm. 533, .... 475

Coon V. Pruden, 25 Minn, 103, 395,

400
Coons V. Renick, 11 Tex. 134
. (60 Am. Dec. 330), - 332, 334
Coope V. Bowles, 43 Barb. 87 ;

18 Abb. Pr. 443, - . 838

V. Eyre, 1 H. Bl. 87, 65, 71, 80

V. "Webb, 15 Sim. 454, - 914

Cooper, Ex parte, 1 M. D. &

De G. 358, - . - 541

y. Bailey, 52 Me. 230. 194, 1091

V. Coates, 31 Wall. 105, - 1067

V. Drouillard, 5 Blackf,

153,' ... . 1070
V. Frederick, 4 G. Greene

(Iowa), 403 (P. V. C. 3 id. 171), 434,

435, 544, 936

V. Hood, 36 Beav. 393, - 347

V. McNeill, 14 111. App.

408, .... 786, 788

V. Metropolitan Bd. of

Wks. 25 Ch. D. 473, . - 659

V. Reid, 3 HUl (S. Ca.) Ch.

549, - - - - 743, 773

V. Tappan, 9 Wis. 361, - 47 ■

Coote V. Bank of U. S. 3

Cranch, C. C. 95, - 199, 439

Coover's Appeal, 29 Pa. St. 9

(aflf'g 3 Phila. 387). - 190, 1114

Iviii

Cop.]

TABLE OF GASES.

[Cou.

Copcutt V. Merchant, 4 Bradf.

18, 747, 750

Cope Y. "Warner, 13 S. & R.

411, 747

Copeland v. Crane, 9 Pick. 73, 937
Copes V. Fultz, 1 Sm. & Mar.

(Miss.) 623, - - - 714, 733
Copland t. Toulmin, 7 CI. &

Fin-. 349, - - - - 181
Copley V. Lawhead.ll La. Ann,

615, - - - - 338

Coppage V, Barnett, 34 Miss.

621, 1158

Corbett, Re, 5 Sawy. 206, 1131, 1133
Corbin v. McChesney, 26 111.

231, 647

Cornells v. Stanhope, 14 R. I.

97, - - - - 412, 493, 1037
Corner v. Gilman, 53 Md. 364, 933,

934
Corning v. Abbott, 54 N. H.

469, 333

V. Grohe, 65 Iowa, 338, - 779

Cornwall v. Cornwall, 6 Bush,

369, . - - - 298

Corps V. Robinson, 2 Wash. C.

C. 388, - - - - 331, 1154
Gorrie v. Calder, 6 Rich. (S.

Ca.) L. 198, - - - - 1169
Corser v. Cartwright, L. R. 7

H.L.731, - - - - 294
Corwin v. Suydam, 34 Ohio St.

309, - - - 435, 430, 1048

Cory V. Long, 3 Sweeny (N.

Y.), 491, - - - 551, 553

Cosio V. DeBernales, Ryan &

Moody, 103, . - - - 139
Costeker v. Horrox, 3 Young

& C. Ex. 530, - - - 973
Coster V. Bank of Georgia, 34

Ala. 37, - - - 186, 1103

V. Clarke, 3 Edw. Oh. 411, 439,

446
V. Murray, 6 Johns. Ch.

533, 943

T. Thomason, 19 Ala. 717, 398,

697
lix

Costello V. Nixdorff, 9 Mo.

App. 501, ... - 614
Costley V. Towles, 46 Ala. 660, 739

V. Wilkerson, 49 Ala. 310, 714,

723
Cothay v. Fennell, 10 B. & C.

671, . - - . 1020, 1033
Cothran v. Knox, 13 S. Ca.

496, .... 770, 771

V. Marmaduke, 60 Tex.

370, - - 17, 23, 35, 43, 47

V. Perry, 8 Watts & S.

262, 73

Cottle T. Harrold, 73 Ga. 830, - 291

V. Leitch, 35 Cal. 434, 591, 989

Cotton V. Evans, 1 Dev. & Bat.

(N. Ca.) Eq. 384, 347, 353, 354, 361
693, 1081
Cottrill V. Vanduzen, 33 Vt.

511, .... 1151, 1154
Cotzhausen v. Judd, 43 Wis.

313 (38 Am. Rep. 689), - 331,437,

428, 1038, 1044

Couch V. Mills, 31 Wend. 424, 385

- V. Woodruff, 63 Ala. 466, 17,

38, 479

Couchman v. Maupin, 78 Ky.

33, 834

Coudrey v. Gilliam, 60 Mo. 86, 943, ,

949, 950
Couilliard v, Eaton, 139 Mass^'

105, 881

Couldery v. Bartrum, 19 Ch.

D. 394, 843

Course v. Prince, 1 Mill (S.

Ca.), 413, 374
V. Prince, 1 Mill (S. Ca.),

416 (13 Am. Dec. 649), - - 853
Coursen v, Hamlin, 3 Duer,

513, .... 770, 771
Coursey v. Baker, 7 Har. & J.

28, - - - - 341, 381, 383
Coursin's Appeal, 79 Pa. St.

330, .,-.-- 70
Courtney v. Wagstafl, 16 0.

B. N. S. 110, - ... 88
Courts y. Happle, 49 Ala. 354, 69

Gov. J

TABLE OF CASES.

[Cra.

Coventry v. Barclay, 33 Beav.

1 ; and on app. 3 De G. J. &

Sm. 320, - - - 345
V. Barclay, 3 D. J. & S. 330

(on app. from 83 Beav. 1), 311,
315, 345, 954
Coverly v. Braynard, 28 Vt.

738, ..... 1126
Coville V. Gilman, 13 W. Va.

314, - - - 910, 914, 1160
Covington v. Leak, 88 N. Ca.

133, 854

Cowan V. Baird, 77 N. Ca.

201, .... 1067
V. Gill, 11 Lea (Tenn.),

674, - 825, 828, 888, 839
V. Iowa State Ins. Co. 40

Iowa, 551 (20 Am. Rep. 533), 371

V. Kinney, 33 Oh. St. 433, 1151,

1154
V. Mclntyre, 19 Up. Can.

Q. B. 607, - - - 1056

Cowand v. Pulley, 11 La. Ann.

1, ... 338

Cowart V. Perrine, 18 N. J. Eq.

454, - - - 943, 946

Cowden v. Cairns, 28 Mo. 471, 391,

295

V. Elliott, 2 Mo. 60, - - 723

Cowdin V. Hmford, 4 Oh. 133, 454,
1049, 1117, 1118, 1119
Cowell V. Sikes, 3 Euss. 191, - 833
Cowles V. Garrett, 30 Ala. 341, 64
Cox V. Cox, 3 Porter (Ala.),

533, 389

V. Delano, 3 Dev. L. 89, - 38

V. Harris, 48 Ala. 588, - 1066

V. Hickman, 8 H. L. 268, 18,

19, 43, 47, 55, 823, 1053

V. Hubbard, 4 C. B. 3I7, 1023

'■ V. McBurney, 3 Sandf.

561, 281

V. Miller, 54 Tex. 16, 139, 836

V. Peters, 13 N. J. Eq. 39, 993,

997
V. Piatt, 33 Barb. 126; 19

How. Pr. 131, - - - 666

Cox V. Russell, 44 Iowa, 556, 821,
1111, 1113

V. Volkert, 86 Mo. 505, 907, 993

V. Willoughby, 13 Ch. D.

863, .... 216, 244
Crabtree v. Clapham, 67 Me.

326; 73 id. ,473, - - 374,375

V. May, 1 B. Mon. 289, - 145

V. Randall, 133 Mass. 552, 788,

' 801
Craft V. McConoaghy, 79 111.

346, .... 113,119
Cragg V. Ford, 1 Tounge &

Coll. Ch. 380, - - 763, 763
Cragin v. Carleton, 31 Me. 493, 1160
V. Gardner (Mich.), 81 N.

W. Rep. 306, - - 735, 1065
Craig V. Alverson, 6 J. J. Mar.

609, - - - 96,416,700
V. Chandler, 6 Colorado,

548, - - - . 136, 938
V. Hulschizer, 34 N. J. L.

368, . - - - 383, 1037, 1039
Cram v. Union Bank of Roch-
ester, 4 Keyes, 558 ; 1 Abb.

App. Dec, 461 ; 43 Barb. 436, 633
Cramer v. Bachmann, 68 Mo,

310, .... 775, 777

V. Metz, 57 N. Y. 659, - 707

Crampton v. Jerowski, 2 Fed.

Rep. 489, - - - . 568
Crane v. Barry, 60 Ga, 863, - 943

V. French, 1 Wend. 811, 377,

379, 1114

V. Gloster, 13 Nev. 379, - 1170

V. Morrison, 4 Sawy. 138;

17 Bankr. Reg. 398, 551, 557, 561,

567, 1109

Cranor v. Winters, 75 Ind. 301, 187

prary v. Williams, 2 Oh. 65, - 201

Craven v. Edmonson, 6 Bing.

734, 750

V. Knight, 2 Ch. Rep. 236, 845

Crawford v. Austin, 34 Md. 49, 43

V. Baum, 13 Rich. L. 75, - 1114

V. Collins, 45 Barb. 369;

30 How. Pr. 398, - - - 193

Cea.]

TABLE OP CASES.

[Cro.

Crawford v. Hamilton, 3 Madd.

254, 158

V. Spotz, 11 Phila. 255, - 761

Y. Stirling, 4 Esp. 207, - 349

V. Thoroughinan, 13 Mo,

App. 579, - - - - 863
Crawshay v. 'Collins, 15 Ves.

218; IJ. & W. 267; 3 Russ.

325, 316, 255, 658, 755, 794, 796,

797, 967, 971, 974

V. Manle, 1 Swanst. 495, - 158,

1«3, 257, 281, 286, 578, 603, 679, 977,

1013
Creath v. Smith, 30 Mo. 113, - 294
Creel v. Bell,, 3 J. J. Mar. 309, 1030
Cregler v. Durham, 9 Ind. 375, 150,

875, 1143
Cremer v. Higginson, 1 Mason,

333, . - . . 653, 656
Crenshaw v. 'Wickershain, 15

Iowa, 154, - - - . 1094
Crescent City v. Camp, 64 Tex.

521, - - 718, 719

Crescent Ins. Co. v. Baer (Fla.

1887), 1 So. E. 318, - 137, 1103
Cresson's Appeal, 91 Pa. St.

168, - " - - - - 941
Cresswell v. Oberly, 17 111.

App. 281, - - - 4

Ores well v. Blank, 3 Grant's

Cas. (I^a.) 330, - - - 749
Crews V. Lackland, 67 Mo. 619, 1094
Criley v. Vasel, 52 Mo. 445, - 547
Crisp, Ex parte, 1 Atk. 133, - 830
Crites v. Wilkinson, 65 Cal.

559, - ... 408

Crocker v. Colwell, 46 N. Y.

213, - ■ 443, 444, 445, 450
Crockett v. Crain, 33 N. H.

543, .... 835, 847
Crockford v. Alexander, 15

Ves. 138, - - - - 990
Croft, Ee, 17 Bankr. Eeg. 334;

8 Biss. 188, . - - . 1131
V. B. & O. E. E. 1 Mac-
Arthur (D. C.), 493, - - 66
Cron V. Cron, 56 Mich. ^, - 566

Cronkhite v. Herrin, 15 Fed.

Rep. 888, - ... 704
Cronly v. Bank of Ky. 18 B.

Mon. 405, - - 694, 695
Crook V. Davis, 28 Mo. 94, - 1151
V. Eindskopf,^ 105 N. Y.

476 (rev. s. C. 34^ Hun, 457), 569

V. Taylor, 13 111. 353, - 1169

Crocker v. Crooker,46 Me. 350

(9 Am. Law. Eeg. O. S. 539), 584,

1109

V. Crooker, 53 Me. 267, 453,

537, 830, 1111
Crooks V. Smith, 1 Grant's t!h.

(Up. Can.) 356, - - 934

Croone v. Bivens, 3 Head, 339, 533,

551, 553
Cropper v. Coburn, 3 Curt. C.

C. 465, - - 915, 1106, 1107, 1109
V. Knapman, . 3 Y. & C.

Ex. 338; 6 L. J. N. S. Ex.

Eq. 9, - - - - 935

Crosby v. Jeroloman, 37 Ind.

364, - - - 454, 535

V. Dermitt, 7 Cal. 146, 276, 870,

871, 873, 873

V. Nichols, 3 Bosw. 450, 561,

893
Cross V. Cheshire, 7 Ex. 48, - 895

V. Hopkins, 6 W. Va. 333, 1013

V. Langley, 50 Ala. 8, • 1151

V. National Bank, 17 Kan.

336, 173, 507, 510, 511, 513, 515,

1155
V. Williams, 7 H. & N.

675, - - - 75

Crossley v. Taylor, 83 Ind. 337, 853,

865
Crossman v. Shears, 3 Ont.

App. 583, - - - 404, 438
Crosswell v. Lehman, 54 Ala.

^63 (25 Am. Dec, 684), - 375, 544
Crosthwait v. Ross, 1 Humph.

33 (84 Am. Dec. 613), - 341, 344,
348, 371, 374
Crottes V. Frigerio, 18 La.

Ann. 283, - - - - 861

Ixi

Ceq.]

TABLE OF CASES.

[Cub.

Crouch V. Bowman, 3 Humph.

209, - - - 199, 200, 453

V. Woodruff, 63 Ala. 466, 779

Croughton v. Forrest, 17 Mo.

131, - - 410, 544, 545, 790
Crow V. Drace, 61 Mo. 325, 28l', 391

V. Green. Ill Pa. St. 637, 583

V. Weldner, 36 Mo. 413, 736,

734
Crowder, Ex parte, 3 Vernon,

706, - - /- ■ - 825

Crowell V. Western Reserve

Bk. 3 Oh. St. 406, - - 1147

Crowley v. Barry, 4 Gill, 194, 697
Crowninshield v. Strobel, 3

Brev. (S. Ca.) 80, - - - 1130
Crozier v. Kirker, 4 Tex. 253

(51 Am. Dec. 724), 200, 341, 361,
430, 439

V. Shants, 43 Vt. 478, 545, 1045

Cruess v. Fessler, 39 Cal. 336, - 657
Cruikshank v. McVioar, 8

Beav. 106, - - - 919

Crumless v. Sturgess, 6 Heisk.

(Tenn.) 190, - - - 467, 700
Cruttwellv. Lye, 17 Ves. 333;

1 Rose, 123, 657, 664, 666, 667, 669
Cubitt V. Porter, 8 B. & C. 357, 274
Culbertson v. Townsend, 6

Ind. 64, - ■ - - - - 724
CuUey V. Edwards, 44 Ark.

423, - 23, 47, 908

Cullum V. Batre, 1 Ala. 136, - 746

V. Bloodgood, 15 Ala. 34, 401,

406
Cumraings' Appeal, 35 Pa. St.

268 (64 Am. Dec. 695), - 847

Cummings v. Morris, 25 N. Y.

625, - - .850, 880, 930

V. FuHam, 13 Vt. 441, - 1166

V. Parish, 39 Miss. 413, - 333

Cummins v. Cassily, 5 B. Mon.

74, - - . - 416

Cumpston v. McNair, 1 Wend.

457, - - - 26, 33, 1135
Cuiilik V. Dyerville Mfg. Co. 7

E. L 335, - - - 770, 776

Cunningham v. Bragg, 37 Ala.

436,

V. Carpenter, 10 Ala. 109,

V. Green, 28 Ohio St. 296,

V. Gushee, 73 Me. 417, -

V. Ihmsen, 63 Pa. St. 851,

Ch.

— V. Littlefield, 1 Edw.
104,

— V. Munroe, 15 Gray, 471,

694
888,
1169
114,

784

847
530,

881

383
754,
1026

V. Smith, 11 B. Mon. 33.5, 764,

978, -985

V. Smithson, 13 Leigh, 33, 439,

440, 441, 1056, 1057

V. Sublette, 4 Mo. 324, 330, 331

Currey v. Warrington, 5 Har.

(Del.) 147, - - 454, 456, 750
Currier v. Bates, 62 Iowa, 537, 763
— - V. Eowe, 46 N. H. 72, - 875

V. Silloway, 1 Allen, 19, - 1146,

1154, 1159

V. Webster, 45 N. H. 226, 875

Curry v. Allen, 55 Iowa, 318, 861, 894

V. Burnett, 36 Ind. 379, - 690

V. Fowler, 87' N. Y. 33 (41

Am. Rep. 343), (affg. 14 Jones

& Sp. 195), - - - 33, 47, 49

V. Kurtz, 33 Miss. 24, - 700

V. Roundtree, 51 Cal. 184, 1095,

1096

V. Stokes, 12 R. I. 53, 1057

V. White, 51 Cal. 530, 694, 700,

704
Curtin v. Munford, 53 Ga. 168, 1007
Curtis V. Belknap, 21 Vt. 433, 1033

V. Cash, 84 N. Ca. 41, - 61

V. Gokey, 68 N. Y. 300

(rev. 5 Hun, 555), - - - 676

V. Hollingshead, 14 N. J.

L. 403, 173, 454, 1049, 1117, 1118,

1119

V. Monteith, 1 Hill, 356, - 1166

—— V. Woodward, 68 Wis.
499 (46 Am'. Rep. 647), 833, 834

Ixii

Cur.]

TABLE OF CASES.

[Day.

Curyea v. Beveridge, 94 HI,

424, 966

Gushing v. Marston, 13 Cush,

431, 1018

V. Smith, 43 Tex. 261, 107, 108

Oiishman v. Bailey, 1 Hill, 536, 47
Cutler V. Hake, 47 Mich. 80, - 263

V. Thomas,^ 25 Vt. 73, 73, 73,

458, 1136, 1145

V. Winsor, 6 Pick. 335 (17

Am. Deo. 385), - - - 45, 59
Cutts V. Haynes, 41 Me. 560, - 1094

D.

Dabney v. Stidger, 4 Sm. &

Mar. 749, - - - 398, 453

Daby V. Ericsson, 45 N. Y.

786, 738, 731

Dages V. Lee, 20 "W. Va. 584, 534,

527
Dahlgreen v. Duncan, 7 Sm. &

Mar. 280, - - 531, 747, 835, 828
Dailey V. Blake, 35 N. H. 9, •■ 614
Dakin v. Graves, 48 N. H. 45, 887,

892
Dale V. Hamilton, 5 Hare, 369, 2,

303, 331

V. Kent, 58 Ind. 584, - 930

V. Thomas, 67 Ind. 570, - 858.

866

V. Pierce, 85 Pa. St. 474, 41, 43

Dales V. Weabes, 18 W. E. 993, 677
Dalton City Co. v. Dalton Mfg.

Co. 33 Ga. 343, - - 45, 733

V. Haws, 37 Ga. 115, - 45

Dampf s Appeal, 106 Pa. St. 73, 936,

966
Dana v. Barrett, 3 J. J. Mar.

(Ky.)8, ' - - - - 858

V. Conant, 30 Vt. 346, 531, 690

V. Gill, 5 J. J. Mar. 343

(30 Am. Deo. 355), 375, 856, 889

V. Lull, 17 Vt. 391, - 338, 583

V. Stearns, 3 Cush. 373, - 145

Danaher v. Hitchcock, 34

Mich. 516, - - - - 1068

Danbury Cornet Band v. Bean,

54 N. H. 524, - - 75

Dance v. Gridler, 1 B. & P. N.

R. 34, 650

Danforth v. Carter, 1 Iowa,

546, ..... 1131

V. Carter, 4 Iowa, 230, - 1143,

1158

Daniel v. Daniel, 9 B. Mon. 195, 388,

1038, 1043

V. Nelson, 10 B. Mon. 316, 700

V. Owens, 70 Ala. 397, - 1101,

1108,1111
V. Toney, 3 Met. (Ky.)

533, .... 416,430

V. Townsend, 31 Ga. 155, 750

Daniels, Petition of, 14 R. I.

500, - , - - 338, 340, 418
Danvers v, Dorrity, 14 Abb.

Pr. 306, .... 976

Danvill Co. v. Parks, 88 111.

170, 177

Darby v. Darby, 3 Drewry,

495, . - - - 2^9. 297, 974
Darden v. Crosby, 30 Tex. 150, 554
Darland v. Rosencrans, 56

Iowa, 133, - - ' - 561

Darling v. Bellhouse, 19 Up,

Can. Q. B. 368, - - - 33, 88
V. Boston & C- R. R; 11

Allen, 295, - - -- - 66
V. Magnan, 13 Up. , Can.

Q. B. 471, - - - 609,618

V. March, 33 Me. 184, 349, 363,

864, 899, 696
Darlington v. Garrett, 14 111.

App. 338, - - - - 360
Darlington Banking Co., Ex

parte, 4 De G. J. & S. 581, 341,

360
Darrow v. St. George, 8 Colo.

593, - - . . 40, 43

Darst V. Roth, 4 Wash. 0. C.

471, .... 393, 416
Dart V. Farmers' Bank, 27

Barb. 337, .... 566
Davenport v. Davis, 33 Me. 24, 861

E

Ixiii

Dav.]

TABLE OF CASEa

[Day.

Davenport v. Gear, 3 HI. 495, - 861

V. Eunlett, 8 N. H, 386, 847,

363
David V. Birohard, 63 Wis.
492, - - - 147, 560, 562

V. EUice, 5 B. & C. 196;

7 D. & R. 690 (affirming s. C.
as David v. Ellis, 1 C, & P.

368), - - - 505, 530, 538

Davidson v. Kelly, 1 Md. 492, 420,

438, 445, 448, 525

V. Knox, 67 Cal. 143, - 1061,

1086

V. Robertson, 3 Dow. 218, 107

V. Street, 34 Ala. 125, - 1091

V. Thirlrell, 3 Grant's Ch.

(Up. Can.) 330, 595, 780, 785, 897

V. Weems, 58 Ala. 187, 733. 724

Uxvies V. Davies, 2 Keen, 534, 743,

924, 926

V. Hodgson, 35 Beav. 177, 664,

665

V. Skinner, 58 Wis. 638

(46 Am. Rep. 65), - - _- 893
Davis, Estate of, 5 Wliart.
530 (34 Am. Dec. 574), - 527, 695

, Ex parte, 4 De G. J. &

Sm. 523, - ... 88

V. Allen, 3 N. Y. 168, 150, 608

V. Ames, 3 Drew, 64, - 233

V. Anable, 3 Hill, 339, - 538

V. Berger, 54 Mich. 652, - 336

V. Blackwell, 5 111. App.

- 348, 349, 351, 360, 448
Briggs, 39 Me. 304, 683, 884
Buchanan, 12 Iowa, 575, 1064
Choteau, 32 Minn. 548, 1029
Christian, 15 Gratt. 11, 398,
299, 598, 600; 601
Church, 1 Watts & S.

- 732
Church, 1 E. D. Sniith,
279; 8N. Y. 452, - - - 1031

— V. Cook, 9 Nev. 134, - 347, 1058,

1086

— V. Cook, 14 Nev. 265, 344, 361,

367

32,
— V.

V.

V.

V.

V.

240,
V.

Davis V. Davis, 60 Miss. 615, 910, 913

V. Dodge, 30 Mich. 267, - 434,

437, 647

V. Evans, 39 Vt. 183, - 78

V. G«lhaus, 44 Oh. 69, 481,' 483,

487

V. Grove, 2 Robt. (N. Y.)

134; id. 635 (27 How. Pr. 70),

- — V. Howell, 33 N. J. Eq. 72,

929,
995

825,
833

- 621

- 1065

- 581
882, 884

V. Keyes, 38 N. T. 94,

V. Kline, 76 Mo. 310,

V.' Lane, 10 N.'H. 161,

V. Merrill, 51 Mich. 480,

V. Michelbacher (Wis.), 31

N. W. Rep. 160, - - 1006
V. Morris, 10 Q. B. D. 436, 1059

V. Richardson, 45 Miss.

499, - - - 323, 329, 371
V. Ruff, Cheves (S. Ca.),

17, 1023, 1032

V. Scarritt, 17 111. 202, - 1071

V. Smith, 37 Minn. 390 ;

39 id. 301, 412, 493, 1043, 1047,

1048

V. Sowell, 77 Ala. 26^, 711, 715,

716, 726, 730

V. Spencer, 24 N. J. 386, . 1080

V. Werden, 13 Gray, 305, 1118

V. White, 1 Houst. 228, - 1105

V. WiUis, 47 Tex. 154, • 454, 612,

1049, 1050
Davison v. Robertson, 3 Dow.

218,

Daw V. Rooke. See Rooke v.

Nisbet, - - . . .
Dawson v. Beeson, 22 Ch. D.

504, ....
— - V. Dawson, 1 Atk. 1,

V. Gurley, 33 Ark. 381,

V. Wilson, 55 Ind. 316,

Day V. Lafferty, 4 Ark. 450,

V. Lockwood, 24 Conn,

185, . - 758, 764, 781, 899

V. McLeod, 18 Up. Can.

Q. B. 256, - - - • 851

341

804

243, 667

- 962

59
• 1079

- 419

Ixiv

Day.]

TABLE OF CA^ES.

[Dem.

Day r. McQuillan, 13 Minn.

205, 1103

V. Stevens, 88 N. Ca. 83

(43 Am. Rep. 733), - - 61

V. Wetherby, 29 Wis. 363, 568

Diayton v. Bartlett, 38 Oh. St.

357, - - - 714, 773

V. "Wilkes, 17 How. Pr.

310, - - - 660,664,669

V. Wilkes, 5 Bosw. 655, 551,

557, 937
Deal V. Bogue, 20 Pa. St. 238

(57 Am. Deo. 702), 1106, 1111

Dean v. Dean, 54 Wis. 33, 253, 605

V. Emerson, 103 Mass. 480, 676,

677

V. Harris, 33 L. T. N. S.

639, - . - - 22, 47
V. McFaul, 23 Mo. 76, - 50S

V. Macdowell, 8 Ch. D.

345, .... 306, 793

V. Newhall, 8 T. R. 168, - 385

V. Phillips, 17 Ind. 406, - 835,

847, 848
Deane v. Hutchins'on, 40 N. J.

Eq. 83, - - - - 1111, 1113
Dear, Ex parte, 1 Ch. D. 519, 563
Dearborn v. Keif;h, 5 Cush.
224, , - - 583, 754

V. Patton, 44 Ala. 584, - 1065

Deardorf v. Thacher, 78 Mo.
138 (47 Am. Kep. 95), - 339, 343,
344, 345, 361, 363
Dearing v. Smith, 4 Ala. 432, 1158
De Berkom v. Smith, 1 Esp.

29, 91

De Caussey v. Baily, 57 Tex.

665, - - - 665, 824, 1109

Deckard v. Case, 5 Watts, 33

(30 Am. Dec. 287), 340, 403, 418,

583, 587

Decker v. Howell, 43 Cal. 636, 339,

370

V. Ruckman, 28 N. J. Eq.

614, . . . - - 114
Deckert v. Filbert, 3 Watts &
a 454, - - - - 339, 688

Ixv

Decreet v. Burt, 7 Cush. 551, 883
Deeks v. Stanhope, 14 Sim.

57, - - - - - 914

Deere v. Plant, 43 Mo. 60, - 607
Deering v. Flanders, 49 N. H.

335, - - 150, 608, 618, 625
Deeter v. Sellers, 103 Ind. 458, 184
De GriefE v. Wilson, 30 N. J.

Eq. 435, - - , - - - 1016
De Groot v. Darby, 7 Rich. L.

18, 1024

Dehority v. Nelson, 66 Ind,

414, 936

Degan v. Singer, 41 111. 28, - 1151
Deitz V. Regnier, 27 Kan. 94, - 328,
341, 348, 361, 370, 373, 1153
De Jarnette v. McQueen, 31

Ala. 330, 453, 453, 453a, 853, 859,

881
Delaney v. Dutcher, 33 Minn.

373, ...
V, Timberlake, 23 Minn.

383, '

Delauney v; Stickland, 2 Stark.

416,

De Lazardi v. Hewitt, 7 B.

Mon. 697, - - - .
De Leon v. Trevino, 49 Tex.

63

43

75

764

88, 137

Delhasse, Ex parte, 7 Ch. D.

511, - - - - 17, 39, 49
Dell, In re, 5 Sawy. 344, - 760, 845
Delmonico v. Guillaume, 3

Sandf. Ch. 366, - - - 281
V. Roundebush, 2 Mc-

Crary.C. C. 18, - - - 307
Delo V. Banks, 101 Pa. St. 458, 1003
Deloney v. Hutcheson, 2

Rand. (Va.) 183, - - 282, 286
Demarest v. Rutan, 40 N. J.

Eq. 356, - - 799, 909, 987

De Mautort v. Saunders, 1 B.

& Ad. 398, - - - 151, 1053
Deming v. Colt, 3 Sandf. 284, 281,

338
Demoss v. Brewster, 4 Sm. &

Mar. 661, - - - - 1085

Dem,]

TABLE OF CASES.

[Dio.

Demott V. Swaina, 6 Stew. &

Por. 293, .... 1093
Denithorne v. Hook, 113 Pa.

St. 240, 95

Denman v. Dosson, 19 La.

Ann. 9, - - - - - 612
Dennis v. Eay, 9 Ga. 449, 831, 556
Denny v. Cabot, 6 Met. 83, 39, 48

V. Metcalf, 28 Me. 389, 900, 904

V. Primeau, 35 Mo. 529, - 733

V. Turner, 2 Mo. App. 52, 738,

734

V. Ward, 3 Pick. 199, 1099, 1114

Densmore v. Mathews, 58 Mich.

616, 1135

Densmore Oil Co. v. Densmore,

64 Pa. St. 43, - - 304, SOS

Dent V. Slough, 40 Ala. 518, 925

V. Turpin, 2 J. & H. 139, 69

Denton v. Erwin, 6 La. Ann.

317, .... 954, 1137

V. Eodie, 3 Camp. 493, 370, 440,

441
Denver v. Eoane, 99 U. S. 355, 589,

711, 730, 739, 770, 773, 773, 775, 916,

923
De Pusey v. Dupont, 1 Del. Ch.

83, 233

Dermani v. Home Hut. Ins.

Co. 26 La. Ann. 69, - - 273
Derby v. Gage, 38 III. 37, 788, 930
Desha v. Holland, 13 Ala. 513 ,

(46 Am. Dec. 261), - - 1032

V. Smith, 20 Ala. 747, - 781,

978, 979
Despatch Line V. Bellamy Man.

Co. 13 N. H. 205, - 418, 430

Dessaint t. EUing, 31 Minn.

287, .... 1067, 1073

De Tastet v. Bordenave, Jao.

516, - ... 995

V. Carroll, 1 Stark. 88, 376, 437

V. Shaw, 1 B. & Aid. 664, 883

Dethlefs v. Tamsen, 7 Daly,

354, .... 663, 664
Detroit V. Robinson, 43 Mich.

198, .... 376,408

Levi

Deux V. Jeffries, Croke's Eliz.

853, 383

Devall V. Burbridge, 6 W. & S.

529, 761

Devaynes v. Noble, 1 Mer. 639

(affd. in 3 R. & M. 495), 496, 748
V. Noble (Baring's Case),

1 Mer. 611, .... 480

(Brice's Case), id. 620, . 610

(Clayton's Case), id. 572, 480,

518

(Houlton's Case), id. 616, 610

(Johnes' Case), id. 619, - 610

(Sleech's Case), id. 539, - 518,

748
Deveau v^ Fowler, 3 Paige, 400, 551,

556, 739
Deveney v. Mahoney, 38 N. J.

Eq. 347, - - - - 283

Devin v. Devin, 17 How. Pr.

514, 141

V. Harris, 3 G. Greene

(Iowa), 186, - - - 332, 324
Devol V. Mcintosh, 23 Ind. 529, 504,

637
Devoss V. Gray, 23 Oh. St. 189, 75
Dewdney, Ex parte, 15 Ves.

499, ..... 705
Dewey v. Dewey, 35 Vt. 455, 281,

451
Dewit V. Staniford, 1 Root

(Conn.), 370, - - - 853

De Wolf V. Rowland, 2 Paine,

C. C. 356, ... 64, 71

Dexter v. Arnold, 3 Mason, 284, 786
De Zeng v. Bailey, 9 Wend.

336, - - - . - 385
Dial V. Rogers, 4 Dessaus. (S.

Ca.) 175, - - - - 955
Diamond Match Co. v. Roeber,

35 Hun, 431, - . - 670

Dickin, Ex parte, L. R. 20 Eq.

249, 842

Dickenson v. Lockyer, 4 Ves.

86, 487

Diokerson v. Wheeler, 1

Humph. 51, . - - • 690

Dia]

TABLE OF CASES.

[Don.

Dickinson v. Bold, 3 Desaus.

(S. Ca.) 501, .... 575
V. Dickinson, 29 Conn.

600, "974

V. Dickinson, 25 Gratt.

321, - - . - 610, 612, 631

V. Granger, 18 Pick. 315, 864

V. Legare, 1 Desaus. (S.

Ca.) 537, - - 408, 405, 420

V. Valpy, 10 B. & C. 128, ^ 83,

87, 91, 94, 829, 345
Dickson v. Alexander, 7 Ired.

L. 4, - - - - 348, 378

V. Burke, 28 Tex. 117, - 1057

Y. Collins, 17 Ala. 635, - 1168

V. Indianapolis Cotton

Mfg. Co. 63 Ind. 9, - - 709
Dickson Crucible Co. v. Gug-
genheim, 3 Brewst. 331, - 673
Dieckmann v. St. Louis, 9 Mo.

App. 9, 833

Digby, Ex parte, 1 Deac. 341, 44
Diggs V. Brown, 78 Va. 293, - 281,
290, 297, 822
Dillard v. Scruggs, 36 Ala. 670, 43, 60
Dillon V. Brown, 11 Gray, 179, 299,

417, 418

V. Kauffman, 58 Tex. 696, 534

V. McEae, 40 Ga. 107, - 373

Dils V. Bridge, 33 W. Va. 30, 42, 48
Dilworth v. Mayfleld, 36 Miss.

40, - - - 290, 298, 394, 833
Dimon v. Hazard, 33 N. Y. 65, 551,

560
Dimond v. Henderson, 47 Wis.

173, - - - 788, 918, 983
Dinham v. Bradford, L. R.~5

Ch. App. 519, - 347, 785, 1013
D'Invillier's Estate, 13 Phila.

363, - - . - 835, 833
Dishon v. Schorr, 19 111. 59, - 1080
Ditsche v. Becker, 6 Phila.

176, - - - - -43,44
Ditts V. Lonsdale, 49 Ind. 521, 364
Divine v. Mitchum, 4 B. Mon.

488 (41 Am. Dec. 341), 381, 390,
291, 295, 833, 1111

Dix V. Mercantile Ins. Co. 33

111. 273, 279

V, Otis, 5 Pick. 38, 85, 508, 1140

Dixon V. Barclay, 32 Ala. 370, 1153

V. Dixon, 19 Iowa, 513, - 1029

V. Hammond, 2 B. & AL

310, 733

V. Hood, 7 Mo. 414 (38 Am.

Dec. 461), - - 1151, 1154, 1163
Doak V. Swann, 8 Me. 170, - 33
Doaue v. Adams, 15 La. Ann.

350, 229

Dob V. Halsey, 16 Johns. 34 (8

Am. Dec. 393), 347, 363, 1043, 1048,

1083
Dobell V, Loker, 1 Handy, 574, 1065
Dobson V. Chambers, 78 N. Ca.

334, 1164

Dodd V. Dreyfus, 17 Hun, 600;

57 How, Pr. 319, - - - 534
Doddington v. Hallet, 1 Ves.

Sr. 497, - - - - 70, 457
Dodds V. Eogers, 68 Ind. 110, 1153,

1170
Dodge V. McKay, 4 Ala. 846, - 414
Dodgson, Ex parte, Mont. &

Mac. 445, - . - - 164
Dodson V. Dodson, 6 Heisk.

(Tenn.) 110, - - - 743, 771
Doe ex dem. Colaaghi v. Bluck,

8 C. & P. 464, - - 386, 709
Doe ex dem. v. Miles, 4 Camp.

373; 1 Stark. 181, - - - 575
Doe ex dem. Overton v. Roe, 9

Dowl. 1039, - - - - 1085
Doe ex dem. Smith v. Tupper,

4 Sm. & Mar. 261 (43 Am.

Dec. 483), - - - 414, 416
Doggett V. Dill, 108 111. 560 (48

Aa». Eep. 565), - 750, 835, 838

V. Jordan, 3 Fla. 541, - 1135

Dolman v. Orchard, 3 C. & P.

104, 441

Donahue v. McCosh, 70 Iowa,

733, - - - . 788, 959
Donald v. Hewitt, 33 Ala. 534, 70,

406

Ixvii

Don.]

TABLE OF CASES.

[DBA.

Donaldson v. Bank of Cape

Fear, 1 Dev. (N. Ca.) Eq. 108

(18 Am. Dec. 577), 183, 184, 296,
299, 937
V. Williams, 1 Cr. & M.

345, 335

Donally v. Ryan, 41 Pa. St.

306, 446

Dpnellan v. Hardy, 57 Ind.

393, ... - 1103, nil
Donelson v, Posey, 13 Ala.

753, 181

Doner v, StauflEer, 1 Pa. (Pen.

& W.) 198 (31 Am. Dec. 370), 190,
824, nil, 1112
Doniphan v. Gill, 1 B. Men.

199, 420,535

Donley v. Bank, 40 Oh, St. 47, 454,

655

V. HaU, 5 Bush, ,549, - 36

V. Hall, 40 Oh. St. 47, - 655

Donnell v. Harshe, 67 Mo. 170, 39,

37,61
V. Jones, 13 Ala. 490 (48

Am^ Dec. 59), - - 1031, 1034
V. P. & O. R. R. 76 Me.

33, 1081

Donoho V. Fish, 58 Tex. 164, - 338
Doro V. Wilkinson, 3 Stark.

287, 403

Doremus v. McCormiok, 7 Gill

(Md.), 49, 331, 383, 465, 480

Dorsey v. Dashiell, 1 Md. 198, 636,

638

V. Wayman, 6 Gill, 59, - 489

Doty V. Bates, 11 Johns. 544, 197,
343, 346, 861
Doubleday v. Muskett, 7 Bing.

110, 74,89

Dougal V. Cowles, 5 Day, 511, 437,

441
Dougherty v. Smith, 4 Met.

(Ky.), 379, ... - 1034

V. Creary, 30 Cal. 390, l€3, 433

V. Van Nostrand, 1 Hofl.

Ch. 68, - - 658, 770, 785, 974
Douglas V. Patrick, 3 T. R. 683, 406

Douglas V. United States, 14

Ct. of Claims, 1, - - - 583

V. Winslow, 20 Me. 89, - 180,

1105, 1114
Douglass V. Brown, 37 Tex,

538, 905

Dounce v. Parsons, 45 N. Y.

180, - ■- - - 446,477

Doupe V. Stewart, 13 Grant's

Ch. (Up. Can.) 687, 578, 995, 997,

1003
Douthitt V. Stinson, 73 Mo. 199, 396
Dow V. Sayward, 13 N. H. 271

(afCd. 14 id. 9), - 67, 333, 1113

V. Sayward, 14 N. H. 9, 67,

180, 1106, 1123

V. Smith, 8 Ga. 551, 350, 1131

DoweU V. Mitchell, 105 U. S,

430, 749

Dowling V. Clarke, 13 R. I. 134, 849
Downer v. Harrison, 3 Gratt.

350, 1065

Downing, Re, 1 DilL 33; 3

Bankr. Reg. 748, - - 560, 833

V. LinviUe, 3 Bush, 473, 413,

493
Downs V. Collins, 6 Hare, 418, 51,

349
Dowzelot T, Rawlings, 58 Mo.

75, - 609, 636, 693, 700, J 151

Doyle V. Bailey, 75 111. 418, - 78
Dozier v. Edwards, 3 Litt. (Ky.)

67, - - - - - 930

Drake, Ex parte, cited in 1

Atk. 235, .... 845
— - v. Blount, 2 Dev. (N. Ca.)

Eq. 353, - - - 717, 750

y. Brander, 8 Tex. 351, - 1121

V. Elwyn, 1 Caines, 184

(overruled in part in 1 N.

Y. 243), - - 191, 301, 361, 1135

V. Moore, 66 Iowa, 58, - 1131

V. Ramey, 3 Rich. L. (S,

Ca.) 37, - . - 42, 168

V. Rogers, 6 Mo. 317, - 338

V. Taylor, 6 Blatoh. 14, - 453o.

841

Ixviii

Dra.]

TABLE OF CASES.

[Dun.

Drake v, Thyng, 37 Ark. 338,

403,
404
639

V. Williams, 18 Kan. 98,

Draper v. Bissell, 3 McLean,

275, .... 694, 698
Dreher v. Mtna. Ins. Co. 18

Mo. 128, .... 273

Drennen v. London Assur.

Corp. 20 Fed. Eep. 657 (re-
versed in part, 113 U. S. 51.

See London Assur. Corp. v,

Drennen, 116 U. S. 461), 81, 371,

273
Dresser v. Wood, 15 Kan. 344, 1085
Drew V. Beard, 107 Mass. 64, 793,

936, 988
V. Drew, 2 Ves. & Bea.

159, - - - , . - 966

V. Person, 23 Wis. 651, 862, 854

Driggs~v. Morely, 3 Pin. (Wis.)

403;3,Chand. 59, - - - 937
Driver v. Burton, 17 Q. B. 989, 438,

1017
Drumright v. Philpot, 16 Ga.

424(60 Am. Dec. 738), 331, 402,
414, 416, 418, 439
Drury v. Roberts, 3 Md. Ch.

157, - . 993, 997, 999
Dry V. Boswell, 1 Camp. 339, 16, 59
V. Davy, 10 A. & E. 30; 2

Perry & Dav. 349, - - 649
Dryer v. Sander, 48 Mo. 400, 201,

205, 439
Dubois' Appeal, 38 Pa. St. 331, 418
Duborrow's Appeal, 84 Pa. St.

404, - - - 928, 1111, 1112

Du Bree v. Albert, 100 Pa. St.

483, 389

Dudley v. Little, 3 Oh. St. 504, 113

v. Littlefleld, 21 Me. 418, 194,

279, 353, 367
Duflf V. East India Co. 15 Ves.

198, - - 381, 681, 683

V. Maguire, 107 Mass. 87, 770,

776, 854
Duflield V. Brainerd, 45 Conn.
424, - - - - 218, 580

DufflU V. Goodwin, 23 Grant's

Ch. Up. Can. 431,
Duffy V. Gray, 52 Mo. 538, -

391
1031,
1032

677

651

301
496
835
352
446,

V. Shockey, 11 Ind. 71, -

Dulaney v. Rogers, 50 Md.

534, - ...
Dulles V. De Forest, 19 Conn.

190,

Dumont v. Euepprecht, 38 Ala,

175, 330, 355, 591, 594, 597, 775

Dunbar v. Bullard, 2 La. Ann.

810, ....

v. Garrity, 58 N. H. 575,

Duncan, Re, 10 Daly, 95,

V. Clark, 2 Rich. L. 587, -

V. Lewis, 1 Duv. (Ky.) 183,

507, 508

V. Lowndes, 3 Camp. 478, 349,

364, 365

V. Rawls, 16 Tex. 478, - 963

v.: Tombeckbee Bank, 4

Porter (Ala.), 181, - 1091,1092
Duncklee v. Greenfield Steam

Mill Co. 3 Foster, 345, 383, 394

Dunham v. Gillis, 8 Mass. 463, 863,

, ' 873, 873, 889

V. Hanna, 18 Ind. 370, 500, 824

V. Murdock,' 2 Wend. 553, 1114

V. Presby, ISO Mass. 285, 114,

119, 131, 128
-- — V. Rogers, 1 Barr, 255, 43, 45
Dunkerson, Re, 4 Biss. 277, - 835
Dunkerson, Re, 4 Biss. 333 ; 13

Bankr. Reg. 391, - - - 835
Dunkle, Re, 7 Bankr. Reg. 107, 367
Dunklin v. Kimball, 50 Ala.

251, - - 338, 339, 340

Dunlap V. Limes, 49 Iowa,

177, - - - 488, 693

V. McNeil, 35 Ind. 316, - 504

V. Odena, 1 Rich. (S. Ca.)

Eq. 373, .... 239

V. Watson, 134 Mass. 305, 770,

771, 788
Dunlop V. Richards, 8 E. D.

Smith, 181, - - - - 307

Ixix

Dun.]

TABLE OF CASES.

[Eae.

Dunman v, Coleman, 69 Tex.

199, - - . . 735, 1029
Dunn V. McNaught, 38 Ga.

179, .... 595, 993

Dunne V. O'Reilly, 11 Up. Can.

C. P. 404, .... 110
Dunuell v, Henderson, 23 N.

J. Eq. 174, 226, 254. 768, 780, 978
Dunnica v. Clinkscales, 73 Mo.

500, 453

Dunns v. Jones, 4 Dev. &

Bat. 154, .... 1057
Dun ton v. Brown, 31 Mich.

182, - - . 142, 144

Du Pont V. McLaran, 61 Mo.

503, .... 586.927

Dupuy V. Leavenworth, 17

Cal. 263, 187, 291, 294, 295, 340

V. Sheak, 57 Iowa, 361, . 136,

257, 260
Duquesne Nat'l Bk. v. Mills,

3 Fed. Rep. 611, - . 720, 737
Durand v. Curtis, 57 N. Y. 7, 507,
508, 510, 513
Durant v. Rhener, 26 Minn.

362, ... 84, 114, 119
V. Rogers, 71 111. 121

(limited in 87 id. 508), - 465, 647

V. Rogers, 87 111. 508, 350, 465,

480
Durbin v. Barber, 14 Oh. 311, 577,
589, 597, 761, 797, 1007
Durdea v. Cleveland, 4 Ala.

225, .- - - . .868
Durell V. Wendell, 8 N. H. 369, 385
Duress v. Horneffer, 15 Wis.

(195), 315 (see H. v. D. 13 id.

603), 137

Durgin v. Coolidge, 3 AUen,

554, .... 338

V. Somers, -117 Mass, 55, 334,

1158
Durham v.'Hartlett, 32 Ga. 22, 680,

806

v. People, 5 111. 172, - 488

Durham Smoking Tobacco

Case, 3 Hughes, 151, - . 663

Duryea v. Burt, 28 Cal. 569, - 163,
290, 291, 295, 585, 822

V. Whitcomb, 31 Vt.

395, - - - - - 17, 26

Duryee v. Elkins, 1 Abb. Adm.

529, - - - - - 59
Dutton V. Morrison, 17 Ves.

193, . . - . 755, 928
V. Woodman, 9 Gush. 255

(57 Am. Dec. 46), 1149, 1151, 1160
Duval V. Wood, 3 Lansing,

789, . . . - - 440
Dwight V. Brewster, 1 Pick.

50, - . ... 67

V. Hamilton, 113 Mass.

175, . . . 603, 664, 668

V. Mudge, 12 Gray, 23, - 503

V. Soovil, 2 Conn. 654, . 400

v. Simon, 4 La. Ann. 490, 475

Dwinel v. Stone, 30 Me. 384, 17, 29,
36, 37, 43, 257
Dyas V. Dinkgrave, 15 La.

Ann. 502, - . . 174, 1059
Dyer V. Clark, 5 Met. 562 (39
Am. Dec. 697), 281, 285, 290, 293,
294, 300, 822, 1114

V. Sutherland, 75 III. 586, 383,

1035
Dyke v. Brewer, 2 Car. & K.
828, 508

E.

Eada v. Mason, 16 111. App,

545, - - .749

Eager v. Crawford, 76 N. T.
97, - . - - 23, 47, 1137

V. Price, 2 Paige, 333, . 1113

Eagle V. Bucher, 6 Oh. St. 295, 574,

780
Eagle Mfg. Co. v. Jennings, 29

Kan. 657 (44 Am. Rep. 668), 505
Eakin v. Knox, 6 S. Ca. 14, 944, 9o7,

960

V. Shumaker, 12 Tex. 51, 305

Earbee v. Ware, 9 Porter, 395, 1093
Earl V. Hurd, 5 Blackf. 248, 1155

Early v. Burt, 68 Iowa, 716, - 605

Eae.]

TABLE OF CASES.

[Ell.

Early v. Reed, 6 Hill, 13, - - 368
Earoa v. Maokey, 106 Pa. St,

453, - - 510, 513, 513, 696
Easoa v. Cherry, 6 Jones, Eq.

sni, 544

Easter v. Farmers' Nat'l B'k,

57 111. 315, - - 635, 694, 698
Eastman v. Clark, 53 N. H. 376

(16 Am. Rep. 193), - 16, 33, 59
V. Cooper, 15 Pick. 276 (26

Am. Dec. 600), - - 353, 363
Easton v. Courtwright, 84 Mo.

27, - 294, 300, 726, 733, 784

Easterly • Bassiguano, 30 Cal.

489, .... 1168

Eaton V. Able, 91 Ind. 107, - 833

V. Taylor, 10 Mass. 54, 429, 694,

698

V. Whltoomb, 17 Vt. 641, 331,

413, 437, 1035
Eaton, Cole & Burnham Co. v.

Avery, 83 N. Y. 31, - - 1155
Ebbert's Appeal, 70 Pa. St. 79, 389
Ebert V. Ebert, 5 Md. 353, 334

Eckerly v. Alcorn, 63 Miss.

228, - - - - 616

Eckhardt v. Wilson, 8 T. R.

140, .... 753, 1026

Eddie v. Davidson, Dougl. 650, 1100
Eden v. Lingenfelter, 39 Ind.

19, ..... 978

Edens v. Williams, 36 HI. 253, 6.34,

893
Edgar v. Cook, 4 Ala. 588, 51, 603

V. Dpnnally, 3 Munf. 387, 405

Edgell V. Macqueen, 8 Mo.

App. 71, .... 1153

Edgerly V. Gardner, 9 Neb. 130, 56, 76
Edmonds, Ex parte, 4 De Q.,

F. & J. 488, - - - 836, 843
V, Robinson, 29 Ch. D.

. 170, .... 802, 806
Edmonson v. Davis, 4 Esp. 14, 471
Edmundson v. Thompson, 2 F.

& F. 564, - - - 91, 101
Edwards V. Entwisle, 3 Mackey
(Dist. Col.), 43, - - 564, 566

Edwards v, Hughes, 30 Mich.
289, - - - 1117, 1118, 1119

V. McEnhill, 51 Mich. 160, 139

V. Pitzer, 12 Iowa, 607, 377, 380

V. Remington, 51 Wis. 336, 887

V. Remington, 60 Wis. 33, 760,

785, 820, 939

V. Stevens, 3 Allen, 315, 141

v. Thomas, 66 Mo. 468, - 136,

137, 249, 599

V. Tracy, 63 Pa. St. 374, 29, 43,

1151, 1154

Egberts v. Wood, 3 Paige, 517, 580,

688, 723, 736, 733, 739

Ege V. Kyle, 3 Watts, 221, - 10B7

Eggleston v. Board man, 37 '

Mich. 17,

v. Wagner, 46 Mich. 610,

Ehrman v. Kramer, 30 Ind. 26,

Eichbaum v. Irons, 6 W. & S.

67, - - ...

Eighth Nat'l B'k v. Fitch,. 49

N. Y. 539, -
Einstein v. Gourdin, 4 Woods,
C. C. 415, - - - -
Einstman v. Black, 14 111. App.

381, - -
.Elder's Appeal, 39 Mich. 474,
Elder v. Hood, 38 111. 533,
Eldred v. Warner, 1 Ariz. 175,
Elgie V. Webster, 5 M. & W.
518, .....
Elgin National Watch Co. v.
Meyer, 30 Fed. Rep. 659, -
Elkin V. Gj-een, 13 Bush, 612,

196, 347
Elkinton v. Booth, 143 Mass.
479, ....
Ellicott V. Nichols, 7 Gill, 85,

V. Smith, 3 Cranch, C. C.

543,
EUinger's Appeal, 7 Atl. Rep.

180; 114 Pa. St. 505, 377,452

Elliot V. Davis, 2 B. & P. 338, 315,

346, 349, 421

V. Stevens, 38 N. H. 311, 105,

332, 446, 566, 567, 840, 1053, 1053

437

549

1151

75

1114

43

317
850
868
743

876

569
107,

609
703

- 1125

Ixxi

Ell,]

TABLE OF CASES.

[ESH.

Elliott V, Deason, 64 Ga. 63, 851, 878

V. Dudley, 19 Barb. 336, - 349

V. Dycke, 78 Ala. 150, 396, 399

V. Holbrook, 33 Ala. 659, 377,

380, 385
Ellis, Ex parte, 2 Gl. & J. 313, 848

V. Bronson, 40 III. 455, 618, 638

V. Commander, 1 Strob.

Eq. (S. Ca.) 18S, ... 990

V. Ellis, 47 N. J. L. 69, 377, 380

V. Fisher, 10 La. Ann. 479, 1163

V. Jameson, 17 Me. 335, - 1160

' V. Lauve, 4 La. Ann. 345, 1168

Ells V. Bone, 71 Ga. 466, - - 537
EUston V. Deacon, L. E. 3 C. P,

30, 347

EUswangerv. Coleman, 7 Mo.

App. 583, - ... 637
Ellsworth V. Pomeroy, 26 Ind.

158, - . - 41, 43
V. Tartt, 36 Ala. 733 (63

Am. Dec. 749), - - 66, 134
Elton, Ex parte, 3 Ves. Jr. 238, 835,

880
Elverson v. Leeds, 97 Ind. 336

(49 Am. Rep. 458), - 107, 611
Elwood V. Western Un. Tel.

Co. 45 N. Y. 545, - 878, 881

Ely V. Hair, 16 B. Mon. 330, - 339,

824

V. Horine, 5 Dana, 398, 715, 716

Emanuel v. Bird, 19 Ala. 596

(54 Am. Dec. 300), 750, 825, 828,

833

V. Draughn, 14 Ala. 303, 28

V. Martin, 13 Ala. 333, - 452

Emerson v. Baylies, 19 Pick.

55, - - - - 383, 1079, 1083

V. Durand, 64 Wis. Ill, - 482,

483, 777, 785, 940

V. Harmon, 14 Me. 371, - 355,

370, 373

V. Knower, 8 Pick. 63, 383, 383

V. Parsons, 46 N. Y. 560

(afE'g 3 Sweeny, 447), - 551, 575
V. Providence Hat Mfg.

Co. 12 Mass. 337, ... 334

Ixxii

Emerson v. Senter, 118 TJ. S. 8, 736,

732
Emery v. Canal Nat'l Bfemk, 7

Bankr. Eeg. 317; 3 Cliff.

507, 341

V. Parrott, 107 Mass. 95, 307,

896

V. Wilson, 79 N. Y. 78, - 885

Emly, Ex parte, 1 Rose, 64, - 366

V. Lye, 15 East, 7, - 439, 440

Emmons V. Newman, 38 Ind.

372, 43

V. Westfield Bank, 97

Mass. 230, - . - - - 43, 47

Emrie v. Gilbert, Wright (O.),

764, 849

Endo V. Caleham, You. 306, - 958
England v. Curling, 8 Beav.

129, - 311, 313, 988, 1010, 1013

V. Downs, 6 Beav. 369, - 659

V. England, 1 Baxter, 108, 45

Engle V. Bucher, 6 Oh. St.

395, 589

Englis V. Furniss, 4 E. D.

Smith, 587; 3 Abb. Pr. 333, 900,

905
English & American Bank, Ex

parte, L. E. 4 Ch. App. 49,
English & Irish Church, etc.

Assur. Soc, In re, 1 Hen. &

M. 85, -
Enix V. Hayes, 48 Iowa, 86, -
Enuis V. Williams, 30 Ga. 691,
Ensign v. Briggs, 6 Gray, 329, 291,

452, 453

V. Wands, 1 Johns. Cas.

171, 323

Ensminger v. Marvin, 5 Blackf.

210, - - . . 361, 1068
Ensworth v. Curd, 68 Mo. 383, 908
Eppinger v. Canepa, 20 Fla.

362,

Erwin's Appeal, 39 Pa. St.

535, - - . . .
Erwin v. Downs, 15 N. Y. 675,
Eshleman v. Harnish; 76 Pa.

St. 97, - - . - -39,47,48

842

19

1023

612

1171

292
397

Esp.]

TABLE OF CASES.

[Fai.

Esposito V. Bowden, 7 El. &

Bl. 763, 683

Espy V. Comer, 76 Ala. 601, 281,
297, 703, 706
Ess, lu re, 3 Hiss. 301, - - 150
Ess 3x V. Essex, 20 Bea v. 443, 216, 303
Estabrook v. Messersmith, 18

Wis. 545, - - - 1087, 1038

V. Smith, 6 Gray, 570, - 194

Estes, Re, 3 Fed. Rep. 134; 6

Sawy. 459, - - - - 825

V. Whipple, 12 Vt. 373, - 855

Etchemende v. Stearns, 44 Cal.

583, ..... 1151
Etheridge v. Binney, 9 Pick.

272, .... 370, 443
Evans v. Bidleman, 3 Cal. 435, 395,

481

V. Bradford, 35 Ind. 537, 175

V. Bryan, 93 N. Ca. 174, 831,

917, 1133

V. Carey, 29 Ala. 99, - 385

V. Clapp, 123 Mass. 165. 759,

960
V. Corriell, 1 G. Greene

(Iowa), 25, - - - - 1151
V. Coventry, 8 DeG. M. &

G. 835, - - - ■ - - 738

V. Drummond, 4 Esp. 89, 150,

523, 528, 608, 609

V. Dunn, 26 Oh. St. 439, - 970

V. Evans, 9 Paige, 178, 994

V. Gibson, 29 Mo. 223, 311, 790

V. Hanson, 42 Ul. 234, 210. 251,

645

V. Hawley, 35 Iowa, 83, 186,

290, 569, 823, 1115

V. Howell, 84 N. Ca. 460, 569

V. Hughes, 18 Jur. 691, - 673-

V. Montgomery, 50 Iowa,

325, - 595, 909, 984

V. Richardson, 3 Mer. 469, 110,

119
— V. Silverlock, 1 Peake, 31, 1024
V. Wells, 23 Wend. 334;

Lockw. Rev. Cas. 390 (rev.

W. V. E. 30 id. 351), -

415
Ixxiii

Evans v. Winston, 74 Ala. 349, 446,

569, 825
Everet v. Williams, 2 Pothier

on Obi. 3; Europ. Mag. 1787,

vol. 2, p. 360, - - 119, 137
Everett v. Backhouse, 10 Ves.

100, 834

V. Coe, 5 Den. 180, - - 47

Everhart's Appeal, 106 Pa. St.

349, .801

Everit v. Strong, 5 Hill, 163;

aflEd. 7 id. 585, - - 401, 418
Everitt v. Chapman, 6 Copn.

347, - 33, 58, 80, 323, 445, 1135

Everughim ■ v. Ensworth, 7

Wend. 336, - - 383, 437, 1044
Everly v. Durborrow, 8 Phila.

93; 1 Pa. Leg. Gaz. 137, - 816
Eversou v. Gehrman, 10 How.

Pr. 301 ; 1 Abb. Pr. 167, 377, 380
Ewing V. Ewing, L. R. 8 App.

Cas. 833, - -- 245

V. Trippe, 73 Ga. 776, 607, 608

Exchange Bank v. Foi'd, 7 Col-
orado, 314, - - - 1049

V. Tracy, 77 Mo. 594, 598, 599

Ex parte. See under the names.
Eyre, Ex parte, 1 Ph. 337 (afE.

3 M. D. D. 13), - - - 475
V. Beebe, 28 How. Pr. 333, 569

P.

Fabian v. Callahan, 56 Cal. 159, 139
Fagan v. Long. 30 Mo. 233, 507, 509
Fagg V. Hambel, 21 Iowa, 140, 385
Faikney v. Reynous, 4 Burr.

3069, - - - 113, 137

Fail V. Mc Arthur, 31 Ala. 36, 331

V. McRee, 36 Ala. 61, - 63

Fain v. Jones, 3 Head, 308, - 824
Fairbank v. Leary, 40 Wis. 637, 113,

117, 119

V. Newto^, 50 Wis. 638, - 113

Fairbanks v. Kittridge, 24 Vt.

9, 177

Fai,]

TABLE OF CASES.

[Fab.

Fairchild v. Amsbaugh, 23 Cal,

672, 1167

V. Fail-child, 64 N. Y. 471

(aff. 5 Hun, 407), - 281, 284, 285,
297, 298, 301, 978
V. Grand Gulf Bank, 5

How. (Miss.) 597, - - - 1071

V. Holly, 10 Conn. 175, - 489

V. Rushmore, 8 Bosw. 698, 1074

V. Slooum, 19 Wend. 329

(aflfd. 7 Hill, 292), - - 67
V. Valentine, 7 Robt. (N.

Y.) 564, - - - - 989

Faivholm v. Marjoribanka, 3

Ross. Lead. Cas. 697, 164, 168

' Faii-lee v. Bloomingdale, 14

Abb. New Cas. 341; 67 How.

Pr. 292, - - - - 139

Faiitboine v. Weston, 3 Hare,

387, - - - 913, 939

Faith V. Richmond, 11 A. & E.

339 : 3 P. & D. 187, 202, 203, 441
Faler v. Jordan, 44 Miss. 283, 331,
341, 351, 370, 372, 1170
Fall River Un. Bank v, Sturte-

vant, 12 Cush. 372, - - 410
Fall River Whaling Co. v. Bor-
den, 10 Cush. 458, 285, 290, 301,
302, 822
Falls V. Hawthorn, 30 Ind. 436, 694
Fancher v. Bibb Furnace Co.

2 So. Rep. 268; 80 Ala. 481, 336
Fanning v. Chadwick, 3 Pick.

420 (15 Am. Dec. 233), 858, 864

Fant V. West, 10 Rich. L. 149, 416
Fargo V. Adams, 45 Iowa, 491, 565,

1114

V. Louisv., New Alb. &

. C. R'y, 10 Biss. 273, - - 73

V. WeUs, 45 Iowa, 491, - 184

Farley v. Lovell, 103 Mass. 387, 1037

V. Moog, 79 Ala. 148, 715, 741,

746, 756, 927, 928, 1111
Farmer, Re, 18. Bankr. Reg.

207, 301

V. Samuel, 4 Litt. (Ky.)

187 (14 Am. Dec. 106), - 255, 311

Farmers' Bank v. Bayless, 35
Mo. 428, - - 439, 446, 1154

V. Bayliss, 41 Mo. 274, 204, 205,

441, 446, 448, 451

Farmers', etc. Bank v. Butch-
ers', etc. Bank, 16 N. Y. 125, 361

Farmers' Ins. Co. v. Ross, 29
Oh. St. 429, - - 38, 61, 1135

Farmers' & Mech. Bank v.
Green, 30 N. J. L. 316, 634, 1147,

1148

Farmers' & Mer. Bank v.
Lonergan, 21 Mo. 46, - - 399

Farmers' & Traders' Sav. Inst.
V. Garesohe, 12 Mo. App.
584, 734

Farnam v. Brooks, 9 Pick. 212, 958,

962

Farnsworth v. Boardman, 131
Mass. 115, - - 639, 636, 879

V. Whitney, 74 Me. 370, 629,

633

Farnum, In re, 6 Law Re-
porter, 21, - - - 453a, 841

V. Patch, 60 N. H. 294, - 76

Farquhar v. Hadden, L. R. 7

Ch. App. 1, - - - 180

Farr v. Johnson, 25 III. .533, - 181

V. Pearce, 3 Mp,dd. 74, 665, 668,

807

V. Wheeler,. 30 N. H. 569, 3,

445, 1150
Farrand v. Gleason, 56 Vt.

633, - , - - - 29, 59, 63
Farrar v. Besvvick, 1 Moo. & R.

537, - - - - 181
v. Defiance, 1 Car. & K.

580, - ... 608
V. Hutchinson, 9 Ad. &

El. 641, - . - 383

V. Pearson, 59 Me. 561, 863

Farrington v. Woodward, 82

Pa. St. 259, . . 630

Farwell v, Davis, 66 Barb. 73, 151,

734, 1024, 1053.

V. Metcalf, 63 N. H.

276, ... 566

bExiv

Fae.]

TABLE OF CASES.

[Fie,

Farwell v. Tyler, 5 Iowa, 535, - 866
Faulds V. Yates, 57 111. 416, - 307,

433, 433
Faulkner v. Brigel, 101 Ind.

339, - - 1019, 1117, 1131

V. Hill, 104 Mass. 188, - 534

V. Whltaker, 15 N. J. L.

438, 173, 1117, 1119, 1151
Faust V. Burgevin, 35 Ark. 170, 636,

879

Faver v. Briggs, 18 Ala. 478, - 1091

Fawcett v. Osborn, 33 111. 411, 39,

86, 39, 43, 257

V. Whitehouse, 1 Russ. &

M. 133, - - 807, 913, 937
Fay V, Davidson, 13 Minn. 533, 66
v.^Duggan, 135 Mass. 343

(21 Am. Law Reg. N. S. 799), 1039,
1073, 1106

V. Finley, 14 Phila. 306, - 639

V. Noble, 7 Cush. 188, - 4

Fayette Nat'lBank v. Kenney,

79 Ky. 133, - 453a, 837, 841

Featherstone v. Hunt, 1 B. &

C. 113; 3 Dow. & Ry. 333, - 537
Featherstonhaugh v. Fen wick,

17 Ves. 398, 318, 305, 571, 573,
794, 974

V. Turner, 35 Beav. 383, 343,

778, 797, 803
Feder v. Epstein, 69 Cal. 456, 1085
Feigley v. Whitaker, 33 Oh.

St. 606 (10 Am. Rep. 778),, - 701
Felder v. Wall, 36 Miss. 595, - 930,

938
Felichy v. Hamilton, 1 Wash.

C. C. 491, - - - - 36
Fellows V. Greenleaf, 43 N. H.

431, - - . - 835, 937

-. — V. Wyman, 83 -N. H. 851, 690,

695, 1037, 1044

Felton V. Deall, 23 Vt. 170, - 45

V. Reid, 7 Jones (N. Ca.),

L. 369. - - - 718, 71/, 723
Fenn v. Bolles, 7 Abb. Pr. 303, ' 673
V. Timpson, 4 E. D. Smith,

376, 1154

Fensler v. Prather, 43 Ind. 119, 634
Fenton v. Block, 10 Mo. App.

536, - - - - 1039, 1045

V. Folger, 21 Wend. 676, 1114

Fereday v. Hordern, Jac. 144j 16,

47,56
V. Wightwick, Taml. 250;

1 Russ. & M. 45 (former re-
port is best), - - - . 845
Fereira v. Sayres, 5 Watts &

S. 310 (40 Am. Dec. 496), 709, 730
Ferguson v. FyflEe, 8 01. & Fin. '

131, .... 330
V. Hass, Phil. (N. Ca.) Eq.

113, ... - 297

V. King, 5 La. Ann. 642, , 191

V. Shepherd, 1 Sneed, 254, 317,

438

V. Thacher, 79 Mo. 511, - 347,

349

V, Wood, 23 Tex. 177, - 1073

V. Wright, 61 Pa. St. 358, 849

Fern v. Gushing, 4 Gushing,

357, - - - 180,755,1133
Ferrero v. Buhlmeyer, 84 How.

Pr. 33, - - - 577, 585

Ferris v. Thaw, 5 Mo.. App.

379, - - 75, 191

Ferson v. Monroe, 1 Foster (31

N. H.); 463, - 446, 566, 567, 824
Fessler v. Hickernell, 88 Pa.

St. 150, 853

Fetz V. Clark, 7 Minn. 317 (over-
ruled), .... 1074, 1094
Feurt V. Brown, 33 Mo. App.

333, - - - 338, 341, 866

Fichtborn v. Boyer, 5 Watts,

159, 416

Fick V. Mulholland, 48 Wis.

413, 1151

Fickett V. Swift, 41 Me. 65, - 331
Fidler v. Delavan, 30 Wend.

-57, 1033

Field V. Garr, 5 Bing. 13, - 489
V. Chapman, 15 Abb. Pr.

484, 659

V. Cooks, 16 La. Ann. 153, 5

Izxv

Vie.]

TABLE OF CASES.

[Fit.

Field V. Malone, 103 Ind. 251, -
V. Tenney, 47 N. H. 613, -

1124
1136,
1140
Fielden v. Lahens, 2 Abb.

App. Dec. Ill; 9 Bosw. 486, 349
Fifield V. Adams, 3 Iowa, 487, 506
Figgins V. Ward, 2 Cr. & M.

424, 897

Filley v. McHenry, 71 Mo. 417, 1151

V. Phelps, 18 Conn. 294, - 180,

184, 453, 535, 556, 558, 719, 745, 747,
750, 848, 1114

Fillyau v. Laverty, 8 Fla. 73, -

749,
750

Finch, Ex parte, 1 D. & Ch.
274,

V. De Forest, 16 Conn.

445, - - - - ■ -

Finckle v. Stacey, Sel. Cas, in
Ch. 9,

Findlay, Ex parte, 17 Ch. D.
334,

Fink V. Patterson, 21 Fed. Rep.
603,

Finley v. Fay, 17 Hun, 67 (re-
versed as Finley v. Finley,
96 N. Y. 6.63).

V. Finley, 96 N. Y. 663

(rev. s. C. as Finley v. Fay,
7 Hun, 67), - - - .

V. Lycoming Mut. Ins.

Co. 30 Pa. St. 311,

Finney v. Allen, 7 Mo. 416, -

V. Turner, 10 Mo. 207, -

First Nat'l Bank, Ex parte, 70
Me. 369, - - - 453, 453a

V. Almy, 117 Mass. 476. - 4

V. Breese, 39 Iowa, 640, - 364

V. Carpenter, 34 Iowa, 433, 331,

349, 363, 399

V. Carpenter, 41 Iowa, 518, 349

V. Ells, 68 Ga. 192, - 695

V. Bissell, 4 Fed. Rep. 694;

2 McCrary, 73 (aflEd. as Bis-
sell V. Foss, 114 U. S. 252), -
V. Freeman, 47 Mich. 408,

754

194

59

835

929

639

639

373

1094

850

310
401

V. Gofif, 31 Wis. 77, 73, 73, 458

First Nat'l Bank v. Hackett, 61
Wis. 335, - - - 338, 1133

V. Hall, 101 U. S. 43, 654, 710

V. Morgan, 73 N. Y. 593

(aflfd. 6 Hun, 346), 353, 361, 529,
538, 747, 750

V. Snyder, 10 Mo. App. 311, 339

Fischer v. Raab, 57 How. Pr.

87, 594

Fish V. Dana, 10 Mass. 46, 639, 640

V. Gates, 133 Mass. 441, -

V. Lightner, 44 Mo. 368, -

V. Miller, 5 Paige, 36,

Fisher v. Bowles, 30 111. 396, -
— V. Minot, 10 Gray, 260, -

V. Murray, 1 E. D. Smith,

841,

V. Pender, 7 Jones, L. 483,

1018
364
338
109

547

338
416,
431

V. Stovall (Tenn.), 2 S. W.

Rep. 567, .... 930

V. -Sweet, 67 Cal. 238, 33, 849

V. Syfers, 109 Ind. 514, 565, 568

V. Tayler, 3 Hare, 318, - 371

V. TifEt, 137 Mass. 313, 532, 534

V. TifEt, 12 R. I. 56 (s. o.

with note, 18 Am. Law
Reg.'N. S. 9), . . 533

V, Tucker, 1 McCord (S.

Ca.), Ch. 169, 414, 690, 701, 703,
709, 747, 750
Fisk V. Copeland, 1 Overton
(Tenn.), 383, ... - 331

V. Gould, 12 Fed. Rep.

372, ----- 929

V. Herrick, 6 Mass. 271, - 1103

Fiske V. Hills, 11 Biss. 294, 935, 929
Fitch V. Hall, 35 Barb, 13, - 43

V. Harrington, 13 Gray,

468 (8 Am. Law Reg. N. S.

688), - - - 91, 93, 164, 168

V. McCrimnion, 30 Up.

Can. C. P. 183, - 491, 494, 497

Fitchter v. Fitchter, 11 N. J.

Eq. 71, - . 990, 993, 995, 1003
Fithian v. Jones, 12 Phila.

201, . - . - .794

Ixzvi

Fit.]

TABLE OF CASES.

[Foe.

Fitzgerald v. Boehm, 7 J. B.
Moore, 333, - - - 746

V. Cross, 20 N. J. Eq. 90, 658,

641

V. Grimtnell, 64 Iowa,

261, . - 173, 1059, 1061, 1063
Fitzpatrick v. Flannagan, 106

U. S. 648, 559, 560, 727, 728, 731,

794, 824, 929

Slack V. Charron, 29 Md. 311, 562,

566
Flagg V. Stowe, 85 111. 164, 5, 6, 181,

257

V. Upham, 10 Pick. 147, - 347,

865, 867
Flammer v. Green, 47 N. Y.

Superior Ct. 538, - - - 691
Flanagan V. Alexander, 60 Mo.

50, 410

V. Shuck, 82 Ky. 617. 283, 291,

298
Flannagan v. Maddin, 81 N.

Y. 633, 9S5

Flannery v, Anderson, 4 Nev.

437, - - - 377, 379, 1086
Fleming v. Billings, 9 Rich. :^q.

149, ■ 825

V. Dorn, 34 Ga. 213, 100, 1167

V, Dunbar, 3 Hill(S. Ca.),

L. 532, 416

V. Lawthorn, Dudley, L,

360, 420

Flemming v. Prescott, 3 Rich.

(S. Ca.) L. 307 (45 Am. Dec.

766), - - - . 349,363
Hemyng v. Hector, 3 M. & W.

173, 75

Flesh man v. Collier, 47 Ga.

253, - - 78, 1154, 1159, 1160
Fletcher V. Anderson, 11 Iowa,

338, 691

V. Hawkins, 3 R. I. 330, - 339

V. Ingram, 46 Wis. 191, 306, 462

V, Pollard, 3 Hen. & M.

(Va.) 544, - - - 978, 983

V. Reed, 131 Mass. 813, 571,

785, 917, 918

Fletcher V. Van Dusen, 53 Iowa,
448, - 741, 1000, 1001, 1004

V. Vanzant, 1 Mo. 196,

Flint V. Marble Co. 53 Vt. 669,
Flintoff V. Dickson, 10 Up.

Can. Q. B. 438, -
Flockton V. Banning, L, R. 8

Ch. App. 333, - -
Flood, Ex parte, 33 New Bruns-
wick, 86, - - - -
Florida Territory v. Redding,
1 Fla. 279, - - - -
Flournoy v. Williams, 68 G^.

707, - - - -
Flowers v. Helm, 29 Mo. 824,
Floyd V. Miller, 61 Ind. 224,

431
39

1114

484

468

715

1151

700

694,

1159

376

Flynn v. Fish, 7 Lansing, 117,
Foerster v. Kirkpatrick, 3

Minn. 310, - - - . 1067
Fogarty v. Cullen, 49 N. Y.

Superior Ct. 397, - - 539, 746
Fogerty v. Jordan, 3 Robt. (N.

Y;) 319, - - - . 881, 333
Fogg V. Greene, 16 Me. 383, - 1160
V. Johnston, 37 Ala. 433

(63 Am. Dec. 771), 592, 595, 597
V. Lawry, 68 Me. 78 (38

Am. Rep. 19), 1101, 1105, 1111

Poland V. Boyd, 33 Pa. St. 476, 400

Folk V. Wilson, 31 Md. 538, 193,

203, 319, 437, 444, 523, 534, 981,

1147, 1150, 1151

Foltz V. Pourie, 3 Desaus. (S.

Ca;) 40, ... 695

Fontaine v. Lee, 6 Ala. 889, 694, 695
Foot, Re, 13 Bankr. Reg. 337 ; 8

Ben. 328, - - - 841, 843

V. Hunkins, 14 Allen, 15, 1103

V. Ketchum, 15 Vt. 258

(40 Am. Dec. 678), - - 1082
V. Sabin, 19 Johns. 154 (10

Am. Dec. 308), - 849, 358, 363
Forbes v. Davison, 11 Vt. 600, 569,

1140

V. Scannell, 13 Cal. 343, 340, 836

Ford V, Clark, 73 Ga. 760, - 703

Ixxvii

For.]

TABLE OF CASES.

[Fox.

Ford V. Kennedy, 64 Ga. 537, 1151,
1154, 1170

V. McBiyde, 45 Tex. 498, 370,

873

V. Smith, 27 Wis. 261, 36, 43,

1108, 1110
Forde v. Herron, 4 Munf. (Va.)

316, 295

Fordice v. Soribner, 108 Ind,

85, 430

Fordyce v. Shriver, 115 III. 530, 761,

967
Forkner v. Stuart, 6 Gratt. 197, 320,
403, 405, 406, 418
Forman v. Homf ray, 2 Ves. &

Bea. 339, - - - - 910
Forney v. Adams, 74 Mo. 138, 410,
437, 1038, 1042
Forrer v. Ferrer, 29 Gratt.

(Va.) 134, - - 305, 770, 777
Forrester v. Oliver, 1 111. App.

359, 737

Forsaith v. Merritt, 1 Low.

366; SBankr. Reg. 11, - 753,755
Forster v. Lawson, 3 Bing.
453; 11 Moo. 360, - 1031

V. Mackreth, L. E. 3 Ex.

163, - - 339, 343, 371, b76
Forsyth, Re, 7 Baukr. Reg. 174, 347

V. Woods, 11 Wall. 484, - 111,

138, 173, 453, 839
Fortune v. Brazier, 10 Ala. 793, 1034

V. Hayes, 5 Rich. (S. Oa.)

Eq. 113, - - - 704

Forward v. Forward, 6 Allen

494, 706, 743, 746, 788, 925, 936

Fosdick V. Van Horn, 40 Oh.
St.' 459, 107, 150, 153, 157, 196, 443,

449

Foster's Appeal, 74 Pa. St. 391

(15 Am. Rep. 553; 3 Am.

Law Rec. 330), 289, 290, 394, 397,

299, 743

Foster v; Allanson, 3 T. R. 479, 858

V. Andrews, 2 Pa. 160, 361, 367

— V. Barnes, 81 Pa. St. 377, 289,
291, 446, 824, 1008

Foster v. Chaplin, 19 Grant's
Ch. (Up. Can.) 251, - 251, 818

V. Donald, 1 Jac. & W.

252, .... 971, 973

V. Fifleld, 29 Me. 136, 424, 647,

701, 978, 1048
V. Hall, 4 Humph. (Tenn.)

346, 216, 847, 439, 446, 584, 727,

1168

V. Rison, 17 Gratt. 831, - 861,

949, 950, 952, 957, 958

V. Shephard, 33 Tex. 687, 741,

1003
V. Vanauken, 4 N, J. L.

109, 865

V. Ward, 1 Cabab6 & El-
lis, 168, 900

Foulks V. Rhodes, 12 Nev. 235, 850,

874, 881
Fourth National Bank v. Heu-

schen, 52 Mo. 307, - 397, 697

Fowke V. Bowie, 4 Har. & J.

566, - ... 495

Fowle V. Harrington, 1 Cush.

146, - - 349, 690, 694, 695

V, Torrey, 131 Mass. 389, 503

Fowler V. Bailley, 14 Wis. [135]

136. .... 291, 1086
V. Reynal, 2 DeG. & Sm.

749; 3 M. & G. 500, - . 174

V. Richardson, 3 Sneed

(Tenn.), 508, - - 636, 694, 69^

V. Tuttle, 24 N. H. 9, - 268

V. Williams, 63 Mo. 403, - 1065

Fowlkes V. Baldwin, 3 Ala.

705, - - - 1074, 1086, 1087
V. Bowers, 11 Lea (Tenn.),

144, - 452, 453a, 825, 838, 841
Fox V. Clifton, 6 Bing. 776; 4

M. & P. 713, - 72, 74, 83, 95, 160

V. Hanbury, Cowper, 445, 184,

274, 403, 583, 610, 754, 755

V. Johnson, 4 Del. Ch. 580, 141

V. Norton, 9 Mich. 307, - 215,

416
V. Rose, 10 Up. Can. Q. B.

16, 276, 403, 405, 577, 585, 756

Ixxviii

Fra.]

TABLE OF CASES.

[FhO.

Francis, In re, 3 Sawy. 286; 7

Bankr. Reg. 359, 33, 85, 43, 47, 49

, The, 1 Gall. 618, - 191, 793

V. Dlckel, 68 Ga. 355, 139, 1094

V. Lavine, 81 La. Ann.

365, 930

V. Rand, 7 Conn. 331, - 1079,

1080

V. Smith, 1 Duv. 131, - 604

Francisco v. Fitch, 35 Barb.

180, 736

Fraucklyn v. Sprague, 131

U-S. 315, - - 394,560, 645
Frank v. Anderson, 13 Lea

(Tenn.), 695, - - - 136, 137
V. Beswick, 44 Up. Can, Q.

B. 1, - - - - 348, 580

V. Blake, 58 Iowa, 750, - 898

V, Peters, 9 Ind. 343, - 834

Fraser v. Kershaw, 3 Kay &

J. 496, - . -. - 754, 755
V. McLeod, 8 Grant's Oh.

(Up. Can.) 368, - - 319, 378
Frazer v. Howe, 106 III. 563, 510,

511
Frazier v. Frazier, 77 Va. 775, 770,

774
Freck v. Blakiston, 83 Pa. St.

474, - - - 307, 793, 903
Frederick, The, 5 Rob. Adm.

8, 59

V. Cooper, 3 Iowa, 171 (C.

V. F. 4 G. Greene, 403), 183, 316,
779, 931, 936
Freeland v. Stansfeld, 3 Sm. &

G. 479, - 341, 755, 805, 807, 808,

809, 830, 995

Freeman, Ex parte. Buck. 471, 503,

516

V. Bloomfleld, 43 Mo. 391, 159,

165, 317

V. Campbell, 55 Cal. 197, 453

V. Campbell, 56 Cal. 630, 189

V. Carhart, 17 Ga. 348, - 1088

V. Carpenter, 17 Wis. 136, 339,

371
V. Fairlie, 3 Mer. 34, - 314

Freeman v. Falconer, 44 N. Y.

Superior Ct. 133, - - - 638

V. Freeman, 136 Mass. 360, 739,

794, 795, 933, 974

V. Ross, 15 Ga. 353, 347, 353, 353

V. Stewart, 41 Miss. 138, 749,

834, 929
Freeman's Nat'l B'k v. Savery,

137 Mass. 75, 349, 354, 355, 359

Freese v. Ideson, 49 111. 191, - 1136
French v. Andrade, 6 T. R.

582, 723

V. Barron, 49 Vt. 471, - 101

V. Chase, 6 Me. 166, - 155

V. Donohue, 39 Minn. Ill, 133

V. Hayward, 16 Gray,

513, 736

V. Lovejoy, 13 N. H. 458, 566,

733, 731, 1045
-: — V. Price, 34 Pick. 13, - 71
— — V. Rowe, 15 Iowa, 563, - 472
V. Styring, 3 C. B. N. S.

357, - - - - 63, 357

V. Wall, 3 Tex. 388, - - 969

Frick V. Barbour, 64 Pa. St.

120, 1154

Friend v. Duryee, 17 Fla. Ill

(35 Am. Rep. 89), - - 339, 1071
V. Michaelis, 15 Abb, N.

Cas. 354, - ... 569
Friermuth y. Friermuth, 46-

Cal. 43, 746

Frigerio v. Crottes, 30 La, '

Ann. 351, - - - - 818
Frink v. Branch, 16 Conn-, 360, 288,

391, 395

V. Ryan, 4 I11.^333,<. - - 887

Fripp V. Williams, 14 S. Ca.

503, ■, - - - - 480
Frith V. Lawrence, 1 Paige,

434, 833

Fromme v. Jones, 13 Iowa,

474, - - - - - 406
Fromont v. Coupland, 8 Bing.

170, - 67, 857, 850, 856, 861
Froneberger v. Henry, 6 Jones,

L. 848, .... 480, 483

F

Ixxix

Fro.]

TABLE OF CASES.

[Gai.

Frost V. Hanford, 1 E. D.
Smith, 540, - - - 323, 823

V. Moulton, 21 Beav. 596, 164,

169

V. Schackleford, 57 Ga.

260, .... 1067, 1070

V. Walker, 60 Me. 468, - 73,

73, 74, 458
Frothingham v. Seymour, 131

Mass. 409, - . - - 590
Froun v. Davis, 97 Ind. 401, - 606
Frout V. Hardin, 56 Ind. 165, 59
Frow, Jacobs & Co.'s Estate,

73Pa. St. 459, 453,533,848,879
Fry, Ex parte, 1 Gl. & J. 96, - 608

V. Hawley, 4 Fla. 258, - 164

V. Potter, 12 R. I. 543, - 865

Frye v. Sanders, 31 Kan. 36 (30

Am. Rep. 431), 334, 434, 905

Fullam V. Abrahams, 39 Kan.

735, . - - - 835, 847

Fuller V. Benjamin, 33 Me. 355, 930,

931, 983

V. Ferguson, 36 Cal. 546, 189

V, Hooper, 3 Gray, 834, 399,

841

v., Miller, 105 Mass. 103, - 230,

779, 933

V. Nelson, 35 Minn. 213, 1016

V Percival, 126 Mass. 381, 895

.; — V. Rowe, 57 N. Y. 33 (rev.
59 Barb. 844), - - 5, 7, 607

V. Scott, 8 Kan. 35, - - 363

FuUerton v. Seymour, 5 Vt.

249, 1068

Fulmer's Appeal, 90 Pa. St. 143, 183,

353, 355
Fulton's Appeal, 95 Pa. St. 333, 853
Fulton V. Central B'k of Pitts-
burg, 63 Pa. St. 113, - - 695

V. Golden, 12 N. J. Eq. 87, 978

V. Hughes, 63 Miss. 61, 551, 560

V. Maccracken, 18 Md. 538, 191

V. Thompson. 18 Tex. 378, 580,

710, 711, 731, 741, 1000

V. Williams, 11 Cush. 108, 346,

531, 882, 884

Funck V. Haskell, 182 Mass.

580, 779

Funk V. Leachman, 4 Dana, 24, 780
Fuqua v. Mullen, 18 Bush, 467, 734
Furlong v. Bartlett, 21 Pick.

401, 147

Fumival v. Weston, 7 J. B.

Moore, 856, .... 383

G.

Gaar v. Huggins, 13 Bush,

359, - -' - 618, 625, 1157
Gable v. Williams, 59 Md. 46, 733,
741, 1000, 1001
Gabriell v. Evill, 9 M. & W.

397; Car. & Marsh. 858, - 88
Gadsden v. Carson, 9 Rich. Eq.

253, .... 569, 835
Gaffney v. Hoyt (Idaho), 10

Pao. Rep. 34, - - . 1155
Gage V. Angell, 8 How. Pr. 385, 850

V. Canada Pub. Co. 11

Out. App. 403 (affg. 6 id. 68), 663

V. Parmalee, 87 111. 839, 311,

777, 786, 958, 979, 981, 983

V. Rollins, 10 Met. 348, 205,

437, 1020
Gaines v. Beirne, 3 Ala. 114, 1055,-

1137

V. Catron, 1 Humph.

(Tenn.) 514, - - - . 285

V. Coney, 51 Miss. 323, . 180

Galbraith v. Gedge, 16 B. Mon.

630, 390, 393, 394, 297, 398, 833

Galbreath v. Moore, 2 Watts,

86, 865

Gale V. Leckie, 2 Stark. 107, 870,

873, 874
V. Miller, 54 N. Y. 536,
1 Lans. 451 ; S. 0. at an
earlier stage, 44 Barb. 420), 347,
360, 369, 636, 691
Gallagher's Appeal, 7 Atl. R.

237; 114 Pa. St. 353, - 559, 569
Gallop V. Newman, 7 Pick. 883, 47

Izxx

Gal.]

TABLE OF OASES.

[Gat.

318

406

Galloway v. Hughes, 1 Bail.

(S. Ca.) L. 553,
Gallway v. Mathew, See Gal-
way V. Matthew.
Galway v. FuUerton, 17 N. J.

Eq. 389, -----
:- V. Matthew, 1 Camp. 403

(s. C. as Gallway v. Mathew,

10 East, 264), 197, 200, 325, 346

Gamble v. Grimes, 3 iQd. 393, 347
Gammon v. Huse, 9 111. App.

557 (affd. 100 111. 334), 883, 884
V. Huse, 100 111. 384 (affg,

9111. App. 557), - 211, 883, 884
Gandolfo v. Appleton, 40 N.

Y. 533, - 453, 533, 917, 918, 985

V. Walker, 15 Oh. St. 251, 605

Gannett' v. Cunningham, 34

Me. 56, - - - 1018, 1019
Gano V. Samuel, 14 Oh. 593, 328,
349, 351, 370, 373, 395
Gansevoort v. Kennedy, 30

Barb. 279, - - - 432, 434
V. Williams, 14 Wend.

133, - 347, 349, 363, 364, 448

Gantt V. Gantt, 6 La. Ann.

677,

Ga'rbett v. Veale, 5 Q. B. 408 ;

13 L. J. Q. B. 98, -
Gard v. Clark, 29 Iowa, 189, -

303

1103
693,
693
Gardenhire v. Smith, 39 Ark.

280, 59

Gardiner v. Bataille, 5 La.
Ann. 597, - ... 575

V. Fargo, 58 Mich. 73, - 639,

850, 856

V. Levaud, 2 Yeates, 185, 1163

Gardner v. Baker, 25 Iowa,

343, 386

V. Conn, 34 Oh. St. 187, - 636,

694

V. Northwestern Mfg. Co.

53 ni. 367, - - - 1151, 1153
Gardom, Ex parte, 15 Ves, 386, 349
Garland, Ex parte, 10 "Ves. 110, 51,

600, 739

Garland v. Agee, 7 Leigh (Va.),

362, 701

V. Jacomb, L. R. . 8 Ex.

316, - - 339, 347, 423, 691
Gamer v. Myriok, 30 Miss.

448, - - -
Garnett v, Richardson, 35 Ark.

144,

Garnier v, Gebhard, 33 Ind.

335,

Garrard v. Dawson, 49 Ga. 434,
Garret v. Taylor, 1 Esp. 117,
Garrett's Appeal, 100 Pa. St.

597,

Garrett v. Bradford, 28 Gratt.

609, - - . . 764, 775
V. Handley, 5 Dow. & R.

319; S. 0. 4 B. & C. 664; S.

C. 3 id. 463, - - - -

y. MuUer, 37 Tex. 589, -

Garretson v. Weaver, 3 Edw.

Ch. (N. Y.) 385, -
Gartside Coal Co. v. Maxwell,

23 Fed. Rep. 197, - ' -

Garvin v. Paul, 47 N. H. 158,

1168

5,8

633

749

1034

496

1019
1033

993

4,7
1072,
1106
Gaselys v. Separatists' Soc. 13

Oh. St. 144, - - - - 13
Gaslin v. Pinney, 33 Minn. 36, 332
Gass V. N. Y., Providence &
Boston R. R. 99 Mass. 230, - 68

V. Stinson, 3 Sumn. 98, 495

- — V, Wilhite^ 3 Dana, 170, 13
Gaston v. Drake, 1 Nev. 175, 111
Gates V. Beecher, 60 N. Y. 518
(19 Am. Rep. 307) {infra, 3
Th. & 0. 404), - - 397, 697

V. Bennett, 33 Ark. 475, 406

V. Fisk, 45 Mich. 533, 704, 705

V. Eraser, 6 lU. App. 239, 209,

572, 933

V. Graham, 12 Wend, 53, 416,

431

V. Hughes, 44 Wis. 333, - 519,

533, 534

V. Mack, 5 Cush. 613, - 1094

V. Manny, 14 Minn, 31, - 1158

Ixxxi

Gat.]

TABLE OF CASES.

[Gii.

Gates V. Pollock, 5 Jones (N.

Ca.), L. 344, - - - - 415

V. Watson, 54 Mo. 585, - 101,

446, 449, 456, 1051, 1068
Gathright v. Burke, 101 Ind.

590, 631

Ganger v, Pautz, 45 Wis. 449, 887
Gault V. Calland, 7 Leigh, 594, 732
Gaus V. Hobbs, 18 Kan. 500, 78, 446,

507

Gaut V. Reed, 24 Tex. 46, 346, 585,

743, 744, 749

Gavin v. Walker, 14 Lea, 643, 156,

157, 829, 344, 371, 374, 443, 1153

Gay V. Bowen, 8 Met. 100, - 701

V. Fretwell, 9 Wis. 186, - 95,

1138, 1155

V, Johnson, 33 N. H. 167, 144,

149, 1099

V. Johnson, 45 N. H. 587, 453

V. Seibold, 97 N. Y. 473

(49 Am. Bep. 533), - - 198
V. Walttnan, 89 Pa. St.

453, .... 836, 1072
Gaylord v. ImhofE, 26 Qh. St.

3^17 (20 Am. Rep. 763 ; 15 Am.

Law Reg. (N. S.) 477), - - 1131
Geddes' Appeal, 84 Pa. St. 482, 289,

Pa. St. 442, . 308, 309

Geddes v. Adams, 11 Gray,

384, - - - - 1074
V. Simpson, 2 Bay (S. Ca.),

533, - - ■. - - 701

V. Wallace, 2 Bligh, 270, 43, 56,

211, 215, 459, 759, 922
Gedge v. Traill, 1 Biuss. & My.

281, 926

Geery v. Cockroft, 33 N. T.

Superior Ct. 146, . - - 1046

V. Geery, 79 N. Y. 565, 971, 973

Gellar, Ex parte, 1 Rose, 297, ,16,

358
Geller, Ex parte, 2 Mad. 363, - 833
Genesee Sav. Bank v. Mich.

Barge Co. 53 Mich. 164, - 1155
George v. Tate, 103 TJ. S, 564, 401,

406

George v. Wamsley, 64 Iowa,

175, - - - 660, 565, 566
Georgia Co. v. Castleberry, 43

Ga. 187, .... 505

Geortner v. Canajoharie, 8

Barb. 635, - - - 566, 994
Gerard v. Basse, 1 Dall. 119, 377,
379, 380, 414
V. Gateau, 84 HI. 131 (35

Am. Rep. 438), - - - 694
Gere v. Clarke, 6 Hill, 350, - 714
Gerhardt v. Swaty, 57 Wis. 24, 389,

462, 480
German Bank v. Schloth, 69

Iowa, 516, - ■ - 365, 382
Gernon v. Hoyt, 90 N. Y.

631, 443

GetcheU v. Foster, 106 Mass.

42, 28, 191, 200, 301, 443, 444, 524
Gething v. Keighley, 9 Ch. D.

547, .... 959, 964
Gibbs V. Bates, 43 N. Y. 193, - 629
— '- V. Merrill, 3 Taunt. 307, 148
Giblett V. Read, 9 Mod. 459, - 605
Gibson v. Lupton, 9 Bing. 287, 65

V. Moore, 6 N. H. 547, 861, 866

V. Ohio Farina Co. 2 Dis-
ney, 499, - - - - 905

V. Stevens, 7 N. H. 352, 53, 598,

599, 1106
V. Stone, 43 Barb. 285 ; 38

How. Pr. 468, - - - 60

V. Warden, 14 Wall. 344, 407,

416, 418
Giddings v. Palmer, 107 Mass.

369, .... 551, 561

V. Seevers, 24 Md. 363, - 646

Gilbank v. Stephenson, 31 Wis.

^93, 35

Gilbert's Appeal, 78 Pa. St.

366, 744

Gilbert v. Whidden, 30 Me.

867, r - - 1140, 1143, 1159

V. Wiman, 1 N. Y. 550, 636,

639
Gilbraith v. Lineberger, 69 N.

Ca. 145, .... 99, 1148

Ixxxii

Gil.]

TABLE OF CASES.

[God.

Gilchrist v. Brande, 58 Wis.

184, - 348, 608, 631, 1151, 1153
Gilhooly v. Hart, 8 Daly, 176, 770,

783
Gill V. Geyer, 15 Oh. St. 399, - 330,

231, 815

V. Ferris, 83 Mo. 156, 43, 193,

576

V. Kuhn, 6 S. & E. 333, - 17

V. Lattimore, 9 Lea, 381, 560,

1131, 1133
V. Morrison, 26 Up. Can.

C. P. 134, ... - 68
Gillan v. MorriBon, 1 DeG. &

S. 431, - - - - 459, 759
Gillaspy v. Peck, 46 Iowa, 461, 847
Gillett V. Gaffney, 8 Colorado,

351, 305

V. Hall, 13 Conn. 436, 907, 984

V. Thornton, L. R. 19 Eq.

599, ... - 316, 333

V. "Walker, 74 Ga. 391, - 1063

Gillies V. Colton, 33 Grant's

Ch. (Up. Can.) 133, - 59, 69

Gilllg V. Lake Bigler Road Co.

3 Nev. 314, - - - - 1063
Gillham v. Kerone, 45 Mo. 487, 357,

360, 1110
Gillilan v. Sun Mut. Ins. Co.

41 N. Y. 376, - - 681, 683, 683
Gillow V. Lillie, 1 Bing. N.

Gas. 695, - - - 315, 346

Gilly V. Singleton, 3 Litt. (Ky.)

249, - - - - - 697
Gilman v. Foote, 33 Iowa, 560, 687

V. Vaughan, 44 Wis. 646, 786,

986
-^.^ V. Williams, 7 Wis. 339

(now overruled), - - , - 1131
Gilmore v. Black, 11 Me. 485, 64

V. Merritt, 63 Ind. 535, - 156

V. North Amer. Land Co.

Peters, C. C. 460, 1111, 1113

V. Patterson, 36 Me. 544, 331

Gilpatriok v. Hunter, 34 Me. 18, 386
Gilpin V. Enderbey, 5 B. &

Aid. 954, - - - 16, 47, 56

1131
734

- 243

767
700
176

Ginesi v. Cooper, 14 Ch. D.

596, - 663, 664, 666, 667, 668
Giovanni v. First Natl. Bk. 55

Ala. 305 (38 Am. Rep. 733)

(overruling s. c. 51 id. 176),
Glass Co. V. Ludlum, 8 Kan. 40,
Glasscock v. Smith, 25 Ala.

474, .... 690, 691
Glassington v. Thwaites, 1

Sim. & Stu. 134, - - 306, 988
v. Thwaites, Coop, temp.

Brougham, 115, -
Gleadow v. Hill Glass Co. 13

Jur. 1030, ....
Gleason v. Clark, 9 Cow. 57, -

V. McKay, 184 Mass. 419,

V. Van Aernam, 9 Oregon,

343, - - . 859, 919

v. White, 34 Cal. 358, - 735

Glen & Hall Mfg. Co. v. Hall,

61 N. T. 336 (rev. 6 Lans.

158),

Glenn v. Arnold, 56 Cal. 631, -
V. Caldwell, 4 Rich. Eq.

(S. Ca.) 168, ....

V. Gill, 3 Md. 1, 103, 104, 105,

834
Glidden v. Taylor, 16 Oh. St.

509,

Glossop V. Coleman, 1 Stark.

35,

Glover v. Tuck, 24 Wendi

153,

Glyn V. Hood, 1 Giff. 338; 1

De G. F. & J. 334,
Glynn v. Phetteplace, 36 Mich.

383, - - 543, 853, 910, 931
Goble V. Gale, 7 Blackf. 218

(41 Am. Deo. 319),

v. Howard, 13 Oh. St. 165,

Goddard v. Brown, 11 Vt. 378,

663
189

883

140

1033

876

937

v. Cox, 2 Stra. 1194,

V. Hapgood, 35 Vt. 351 (60

Am. Dec. 372), -
V. Hodges, 1 Cr. & M. 33,

1033

894

445,

1053

495

569
55,

853, 854

Ixxxiii

God.]

TABLE OF CASES.

[Gtou.

Goddard v. Ingram, 3 Q. B. 839, 703

V. Pratt, 16 Pick. 413, 83, 64,

83, 160, 153, 689, 608, 609,
611, 633, 1156

V. Eenner, 67 Ind. 633, 403, 404

Godden v. Kimmell, 99 U.. S.

201, 943

Godfrey v. White, 43 Mich. 171, 283,

294, 313, 767, 770, 775, 777,

785, 907, 974, 975, 976, 977

Goedde, Ro, 6 Baokr. Eeg. 295, 833,

833
Goelet V. McKinetry, 1 Johns.

Cas.'405, - - - 724,746
Goell V. Morse, ,126 Mass. 480, 63
Goembel v. Arnett, 100 lU. 34, 551,

560
Goepper v. Kinsinger, 39 Oh.

St. 429, - - - 283,286

Goesele v. Bimeler, 14 How.

589 (affg. 5 McLean, 233), - 13
Goldie V. Maxwell, 1 Up. Can.

Q. B. 434, - - - 305, 439
Golding V. Vaughan, 3 Chitty,

486, . . - - 733, 723
Goldman v. Page, 59 Miss. 404, 1038
Groldsborough v. Mc Williams,

2Cranch, C. C. 401, - - 858
Goldsmith v. Sachs, 17 Fed.

Eep. 726 ; 8 Saw. 110, 13, 870, 873
Goll V. Hinton, 8 Abb. Pr. 132, 1105

V. Hubbell, 61 Wis. 398, 1133

Gomersall v. Gomersall, 14

Allen, 60, - - - - 873
Goodbar v. Gary, 4 Woods, 663;

16 Fed. Rep. 316, - - 566

Goodburn v. Stevens, 5 Gill, 1 ;

1 Md. Ch, 420, 390, 297, 398, 680,
794, 801
Goode V, Harrison, 5 B. & Aid.

147, - - - 143, 146, 611
V. Lin«cum, 1 How. (Miss.)

381, - - . - 317, 373

V. McCartney, 10 Tex. 193, 48,

317, 363, 1046

Goodenow v. Jones, 75 111. 48, 503,

507, 508, 510, 511

Goodin v. Armstrong, 19 Ohio,

44, 858,860

Goodman v. Henderson, 68 Ga.

667, 676

v.Whitcomb, 1 Jac. & W.

589, - - . . 313, 3J4

V. White, 25 Miss. 163, - 317

Goodnow V, Smith, 18 Pick.

414, 386

Goodrich v. Leland, 18 Mich.

110, ... - 446

Goodson V. Coolyj 19 Ga. 599, 870
Goodspeed v. South Bend Plow

Co. 45 Mich. 337, - 536, 694, 707

V. Wiard Plow Co. 45

Mich. 323, . - - . 707

Goodwin v. Einstein, 51 How.

Pr. 9, 303

Gordon's Estate, 11 Phila. 186, 836
Gordon v. Bankard, 37 111. 147, 199,

1154

V. Boppe, 65 N. Y. 665, - 875,

877

V. Buchanan, 5 Yerg. 7, - 333

V. Cannon, 18 Gratt. 387, 338,

555, 825

V. Freeman, 11 111. 14, - 381,

583, 681, 684

V. Gordon, 49 Mich. 501, 386,

917
V. Janney, Morris (Iowa),

183, 1143

V. Kennedy, 36 Iowa, 167, 838

V. Tyler, 53 Mich. 639, - 1039,

1040
Gorham v. Farson, 10 N. E.

Rep. 1 ; 119 111. 435, - - 918

Gorman V. Russellj 14 Cal. 631, 7,

75, 241, 591, 1038

V. Russell! 18 Cal. 688, - 75

Gossett V. Weatherly, 5 Jones

(N. Ca.), Eq. 46, - - - 570
Gott V. Dinsmore, 111 Mass.

45, 72, 73

Gough V. Davies, 4 Price, 200, 531
Gould V. Gould, 35 N. J. Eq.

37; id. 563; 36 id. 380, • • 141

Ixxxlv

Gou.]

TABLE OF CASES.

[Gba.

Gould V. Gould, 6 Wend. 263

(aflfg s. c. 8 Cow. 168), - 181, 1019

V. Horner, 12 Barb. 601, 216

V. Kendall, 15 Neb. 549, - 111,

114, 119, 127, 128
Goulding, Ex parte, 2 Gl. & J.

118, 509

Gouthwaite v, Duckworth, 3

East, 431, - - - 80

Gover v. Hall, 3 Har. & J.

(Md.) 48, - - . 952, 963
Gow V. Eorster, 26 Ch. D. 673, 605
Gowan v. Jackson, 30 Johns.

176, - 899, 1155, 1158, 1159
V. JefiEries, 3 Ashmead,

296, 591

V. Tunno, Rich. Eq. Cas.

(8. Ca.) 869. - - - 750, 847
Grabenheimer v. Eindskoff, 64

Tex. 49, - - 43,105,1109

Grace v. Smith, 3 W. Bl. 998, 16, 47
Grady v. Robinson, 38 Ala.

289, 73, 74, 83, 293, 416, 417

Graefif v. Hitchman, 5 Watts,

454, 439, 440, 445, 446

Graff V. Kinney, 37 Hun, 405;

15 Abb. N. Cas. 397, - - 139
Grafton Bank v. Moore, 13 N.

H. 99(38 Am. Dec. 478), - 1149,
1151, 1155
Graham v. Boynton, 35 Tex.

713, - - - - 1124
V. Holt, 3 Ired. (S. Ca.) L.

300 (40 Am. Deo. 408), - - 856

V. Howell, 50 Ga. 203, - 1171

V. Meyer, 4 Blatchf . 139, 468

— V. Pocock, L. R. 3 P. C.

345, - - - - - 468

V. Robertson, 2 T. R. 282, 753,

895, 895

V. Selover, 59 Barb. 313, 703,

704
V. Whichelo, 1 C. & M.

188, 709

Gram v, CadweU, 5 Cow. 489, ' 333,

383, 683, 684, 1044

V. Seton, 1 Hall, 263, 414, 416

Granger

Grant,

158,

V.

V. McGilvra, 34 111.

- 336, 381, 681, 683, 1039
Re, 6 Law Reporter,

- - - - ■ - 400
330

524,

Bryant, 101 Mass. 567,
Crowell, 43 N. J.Eq.

753

307
387
743
981
908
747

V. Hardy, 33 Wis. 668, -

V. Holmes, 75 Mo. 109, -

V. MoKinney, 36 Tex. 63,

V. Masterton, 55 Mich. 161,

V. Poillon, 20 How. 163, -

V. Shurter, 1 Wend. 148,

Graser v. SteUwagen, 35 N. Y.

315, - . . . 335, 403
Grasswitt y. Connally, 37

Gratt. 19, - - - - 105
Gratz V. Bayard, 11 Serg. & R.

41, - - - 598, 599, 605, 733
V. Stump, Cooke (Tenn,),

493, - - - - 456, 1051
Graves v. Boston Ins. Co, 3
' Cranch, 419, - * - - 409

V. Cook, 3 Jur, N. S. 475, 876

V. Hall, 33 Tex. 665, 338, 340

V. Kellenberger, 51 Ind.

66, - - . 357, 343, 409

V. Merry, 6 Cow. 701 (16

, Am. Dec. 471), - 612, 618, 698
Gray v. Badgett, 5 Ark. 16, - 1079

V. Brown, 28 Ala. 363, - 385

V. Chiswell, 9 Ves. 118, 835, 828

V. Clement, 13 Mo. App.

579, 734

V. Cropper, 1 Allen, 337, 480

V. Gibson. 6 Mich. 300, 78, 1140

V. Haig, 30 Beav. 219, - 983

V. Larrimore, 3 Abb. (U,

S.) 543, - - - - 980
V. McMillan, 23 Up. Can.

Q. B. 456, - 635, 638, 637, 640, 879

V. Palmer, 9 Cal. 616, 13, 150,

379, 294, 801, 970, 976

V. Rollo, 18 Wall. 631, - 1081

V. Steedman, 63 Tex. 95, 1121

V. Ward, 18 111. 33, - 329, 347

363, 436, 427, 430

Ixxxv

Gba.]

TABLE OF CASEa

[Obi.

380

850

314

45

208
411,

Gray v. Washington, Cooke,

331, 964

V. Williams, 9 Humph.

603, . - . . 636, 640
Grazebrook, E^ parte, 3 Deac.

& Ch. 186, - - - 634, 843
V. McCreedie, 9 Wend.

437,

Greathouse v. Greathouse, 60

Tex. 597, . . - .
Greatrex v. Greatrex, 1 DeG.

& S. 693, - . - .
Great Western R'y v. Preston

& Berlin R'y, 17 Up. Can. Q.

B. 477,

Great Western Tel. Co., Re, 5

Bias. 363, - - - .
Greeley v, Wyeth, 10 N. H. 15,

430, 1037
Gregg V. Fisher, 3 111. App.

261, - 338, 341, 348, 361, 370
V. James, Breese (111.), 107

(13 Am. Dec. 151), 381 681, 1079
Gregory v. Dodge,. 4 Paige,

557, 1169

V. Martin, 78 111. 88, - 1164

V. Menefee, 83 Mo. 413, 733

743, 773, 788

V. Patchett, 33Beav. 595, 435

Green v. Beals, 2 Gaines, 254, 377,
379, 380, 414, 421
V. Beesley, 8 Bing. N. Cas.,

108, 37,67

V. Briggs, 6 Hare, 395, - 70

V. Castlebury, 77 N. Ca.

164, 968

V. Caulk, 16 Md. 556, - 1159

V. Chapman, 27 Vt. 236, 899,

900, 905, 1095

V. Ediok, 56 N. Y. 613, - 1170

V. Pyne, 1 Ala. 335,,- - 1051

V. Rand, 3 Conn. 254, - 377

V. Tanner, 8 Met. 411,' 446, 451

V. Virden, 33 Mo. 506,, - 733

V. Waring. 1 W. Bl. 475, 334

Greene v. Ferrie, 1 Desaus.

(S. Ca.) 164, .... 564

Greene v. Graham, 5 Oh. 364, 294,

297, 975
V. Greene, 1 Oh. 535(13

Am. Dec. 643), - - 281, 290
Greenebaum v. Gage, 61 111. 46, 677
Greenewald v. Rathfon, 81

lud. 547, - - - - 897
Greenham v. Gray, 4 Irish

Com. L. 501, - - - 17, 35, 873
Greenleaf v. Burbank, 13 N.

H. 454, 365

- — V. Quincy, 12 Me. 11 (38

Am. Dec. 145), - - - 705
Greenslade v. Dower, 7 B. &

C. 635; 1 Man. & Ry. 640, 839,
343, 345, 371
Greentree v. Rosenstock, 61

N. Y. 583, - - - . 1124
Greenup v. Barbee, 1 Bibb,

330, - - - - 72, 73, 458
Greenwald v. Kaster; 86 Pa.

St. 45, - - - - 386, 387
Greenwood's Case, 3 be G. M.

& G. 476, - - - 73, 323
Greenwood v, Brodhead, 8

Barb. 598, . ... 929

V. Sheldon, 31 Minn. 254, 219

Greer v. Bush, 57 Miss. 575, 650, 651
Gribbin v. Thompson, 23 III.

61, - - - - 1094

Gridley v. Conner, 2 La. Ann.

87, - - - 786, 907, 933, 993

V. Dole, 4 N. Y. 486, 851, 868,

878, ■ 881
GriefE v. Boudousquie, 18 La.

Ann. 631, - ... 91

V. Kirk, 15 La. Ann. 830, 1086

V. Kirk, 17 La. Ann. 25, - 653

Griener v. Ulerey, 30 low^,

366, 1143

Grier v. Hood, 25 Pa. St. 430, - 377
Griffey v. North cutt, 5 Heisk.

746, 294, 397, 300, 769, 770, 773 .

Griffle v. Maxey, 58 Tex. 210, 286,
560, 1181, 1132, 1133
GrifiBn, Ex parte, 3 Ont. App.

1. 613

Ixxxvi

Gri.]

TABLE OF CASES.

[Gwi.

563

Griffin v. Cranston, 10 Bosw. 1 ;
1 id. 381, - - . -

V. Doe ex dem. Stoddard,

13 Ala. 783, ... - 1145

V. Orraan, 9 Fla. S3, - 551, 639

V. Samuel, 6 Mo. 30, - - 456

V. Speuce, 69 Ala. 893, 714, 717

Griffith V. Buck, 13 Md. 103, 551,
553, 688, 824

V. Buffum, 33 Vt. 181 (54

Am. Deo. 64), 33, 156, 157, 445

•" V. Carter, 8 Kan., 565, - 175

V. Ciiew, 8 S. «& E. 17, - 900

V. Vanheythuysen, 9

Hare, 85, - - - - 938

V. Willing, 3 Bin. 817, - 899

Griffiths V. Griffiths, 3 Hare,

587, - - - - - 710

Griggs V. Clark, 33 Cal. 437, - 181,

770, 773, 773, 907, 908

Grigsby v. Nance, 3 Ala. 347, 875,

876, 880
Grim's Appeal, 105 Pa. St. 375, 735,
739, 743, 745, 933
Grinnan v. Baton Rouge Co. 7
' La. Ann. 638, ' - 618

Grissom v. Moore, 106 Ind. 296, 390,

397
Griswold v. Griswold, 14 How.
Pr. 446, - - - 1086

V. Haven, 35 N. Y. 595, 473

V. Hill; 1 Paine, C. C. 390, 941

V. Waddington, 16 Johns.

438 (a£Eg. 15 id. 57), 335, 570, 581,
. 582, 610
Groenendyke v. Coffeen, 109

111. 335, - 953, 954, 955, 963

Groesbeck v. Brown, 3 How.

Pr. 31, 380

Grossini v. Perazzo, 66 Cal.

545, .... 753,935
Grosvenor v. Austin, 6 Oh. 103
(25 Am. Dec. 743), - 828, 833

V. Lloyd, 1 Met. 19, 152, 157,

608
Grove v. Fresh, 9 Gill & J.
280, - - - - 764,930

Grove v. Miles, 85 111. 85, - 761
Groves v. Tallman, 8 Nev. 178, 936
Grozier v. Atwood, 4 Pick. 384, 59
Grubb V. Cottrell, 62 Pa. St. 23, 853,
903, 1038
Grund v. Van Vleck, 69 Bl.

478, .... 467, 469
Guckenheimer v. Day, 74 Ga.

1, 1133

Guerand v. Dandelet, 33 Md.

561, ... .676

Guice V. Thornton, 76 Ala. 466, 84,
823, 323, 363, 368, 446, 488, 1140-
Guidon v. Eobson, 3 Camp.

803, .... 1033, 1067
Guild V. Belcher, 119 Mass. 257, 347,

507, 509

Y. Leonard, 18 Pick. 511, 560

GuiUou V. Peterson, 89 Pa. St.

163 (rev. s. C. 9 Phila. 225), 488
Guimond v. Nast, 44 Tex. 114, 1086
Guion v. Trask, 1 DeG. & J.

879, - - - 185

Guliok V. Gulick, 14 N. J. L.
578, 150, 330, 331, 575, 858, 1155

v. Gulick, 16 N. J. L.

186, - - - 530, 881

GuUat v. Tucker, 3 Cranch, C.

C. 33, 847

GuUich V. Alford, 61 Miss. 234, 86
Gumbel v. Abrams, 30 La.
Ann. 568, .... 457

V. "Koon, 59 Miss. 364, 155, 193

Gunn V. Central E. E. Co. 74

Ga. 509, .... 133

GunneU v. Bird, 10 Wall. 304, 810,

813
Gunter v. Jarvis, 35 Tex. 581, 735,

1057

V. Williams, 40 Ala. 561, 393,

416, 417
Guptil V. McFee, 9 Kan. 30, - 1131
Gurler v. Wood, 16 N. H. 539, 465
Gurr V. Martin, 73 Ga, 538, - 59
Guyton v. Flack, 7 Md. 398, - 834,

939, 1003
Gwin V. Selby, 5 Oh. St. 96, - 567
Ixxxvii

Gwi.]

TABLE OF CASES.

[Hai.

Gwinn v. Eooker, 24 Mo. 390, 414,

416, 420
Gwynn v. DuflSeld, 66 Iowa,

708, 463

Gyger's Appeal, 63 Pa. St. 73
(1 Am. Rep. 383), - 769, 770, 773,
785, 786, 794, 798, 937, 986, 987
Gynne V. Estes, ULea, 663, - 740

Haas V. Eoat, 16 Hun, 536

(afifd. in 36 Hun, 633), - - 47
V. Shaw. 91 Ind. 384 (46

Am. Rep. 607), - - - 189
Haben v. Harshaw, 49 Wis.

379^ 667

Habershon v. Blurton, 1 De G.

& Sm. 121, - - 584, 938, 1103
Hacker v. Jolinson, 66 Me. 31, 1105,
1107, nil, 1113
Hackett v. Multnomah E'y Co.

12 Oregon, 134, ... 133
Hackley v. Patrick, 3 Johns.

536, - - - - 699, 700
Hack well v. Eustman, Cro.

Jac. 410, - - - - 739
Hadden v. Shortridge, 37 Mich.

313, - - - 1140,1158

Haddock v. Crocheron, 33 Tex.

376 (5 Am. Rep. 344), 633, 694, 695,

704
Haddoa v. Ayres, 1 E. & E.

118, - ,- - - - 879
Hafer, In re, 1 Bankr. Reg.

[147] 547, - - - - 1131
Had field v. Jameson, 3 Munf.

(Va.)53, - - - - 895

Hagar v. Graves, 25 Mo. App.

164, .... 1039
V. Mounts, 3 Blackf. 57;

id. 361, 847

V. Stone, 20 Vt. 108, ' 153, 1053

Haggart v. Allan, 4 Grant's

Ch. (Up. Can.) 36, - - 953
Haggerty v. Granger, 15 How.

Pr. 343, 338

Haggerty v. Johnston, 48 Ind.

41, - - - - 504, 634, 647

V. Juday, 58 Ind. 154, - 538

Hague V. Eolleston, 4 Burr.

3174, 683

Hahn v. St. Clair Sav, & Ins.

Co. 50 111. 456, - - - 1151
Haig V. Gray, 3 De G. & Sm.

741, 733

Haight V. Arnold, 48 Mich.

512-, ..... 1073

V. Burr, 19 Md. 130, 994, 1004

Haines v. HoUister, 64 N. Y. 1, 750

V, Knowles, 36 Mich. 407, 1106

Hake v. Buell, 50 Mich. 89, - '1141
Haldeman v. Bank of Middle-
town, 28 Pa. St. 440, - - 348
Halderman y. Halderman,

Hempst. C. C. 559, ^ - 853, 858
Hale V. Brennan, 38 Cal. 511, 978,

1136
V. Henrie, 2 Watts, 143

(37 Am. Dec. 389), - - 389

V. Plummer, 6 Ind. 121, 390,

297

V. R3,ilroad, 60 N. H. 333, 405

V. Van Saun, 18 Iowa, 19, 1091

V. Wetmore, 4 Oh. St.

600, .... 1168, 1169

V. Wilson, 113 Mass. 444, 871,

897
Haley v. Bellamy, 187 Mass.

357, '233

Half hide v. Penning, 3 Bro. C.

C. 386, - - - - 233

Hall, Ex parte, 1 Rose, 2; 17

Ves, 63 (latter is fuller).

382,
680
634,

Ixxxviii

, Ex parte, 3 Deac. 125,

843

V. Bainbridge, 1 M. & G.

42, .... 438

V. Barrows, 4 DeG. J. &

S. 150, - - 658, 668, 665, 675

V. Clagett, 48 Md. 223, 313, 765,

909, 952, 983
V. Cook, 69 Ala. 87, 456, 1051

Hal.]

TABLE OF OASES.

[Han.

Hall V. Curzon, 9 B. & 0. 646, 1169

V. Edson, 40 Mich. 651, 43, 78

V. Hall, 13 Beav. 414; 20

id. 139; 3 Macn. & G. 79, 663, 988,

991

V. Hall, 3 McCord, Ch. 269, 835

V. Irons, 4 Up. Can. 0. P.

351, 385

V. Jones, 56 Ala. 493, 508, 519,

616, 631, 707
V. Lannin, 80 Up. Can.

O. P. 204, - - - 864, 806

V. Lanning, 91 U. S. 160, 336,

377, 1086, 1089, 1090, 1093
V. Lonkey, 57 Cal. 80, 989, 974

■ V. Sannoner, 44 Ark. 34,

211,
763

V. Smith, 1 B. & C. 407

(overruled in Ex parte Buck-
ley, 14 M. & W. 469; 1 Ph.
563), - - - -

V. Tay, 131 Mass. 193,

V. Thayer, 13 Met. 130, -

HaUack v. March, 35 HI. 48, -
Haller v. Willamowioz, 23
Ark. 566, 761, 770, 777, 898, 978,

979
Hallet V. Desban, 14 La. Ann.

539,

Hallett V. Cumston, 110 Mass.

29,

V. Cumston, 110 Mass. 32,

Halliday v. Bridewell, 36 La.
Ann. 238, . - - -

V. Carman, 6 Daly, 423,

V. Doggett, 6 Pick. 359, -

V. McDougall, 30 Wend.

81 (rev. in part, 23 id. 364),

1156, 1157
Halsey v. Norton, 45 Miss. 703
(7 Am. Eep. 745), 583, 753, 1036

V. Whitney, 4 Mason, 206, 383,

415
Halstead v. Shepard, 23 Ala,

558, 376, 401, 403, 689, 991, 1039
Halsted v. Schmelzel, 17 Johns.
80, ... - 849, 865

346

650

75

336

43

672
923

43

879
1018

1155,

138
447

430

Ham V. Hill, 39 Mo. 275, - 636, 637
Hambridge v. De la Orouee, 3

C. B. 742, - - - 377, 380
Hamer v. Giles, 11 Ch. D. 943, 987
Hamersley v. Lambert, 3'

Johns. Ch. 508, 539, 747, 749, 750,

935
Hamil v. Stokes, 4 Price, 161 ;

Dan. 20, - 595, 805, 807, 809
HamiU v, HamUl, 37 Md. 679, 589,

756, 999

v.Willett, 6 Bosw. 583, 105,547

Hamilton's Appeal, 103 Pa. St.

368, 377

Hamilton, In re, 1 Fed. Rep.

800, - - 150, 838, 889, 845

V. Buxton, 6 Ark. 34, 456, 1051,

1068

V. Douglas, 46 N. Y. 318,

V. Einer, 20 La. Ann. 391,

V. Hodges, 30 La. Ann.

Pt. II, 1290,
V. Phoenix Ins. Co. 106

Mass. 895, - - 319, 336, 437

V. Purvis, 2 Pa. 177, - 403

■^ — V. Smith, 5 Jur. N. S. 33, 89

V. Seaman, 1 Ind. 185, - 695

V. Summers, 12 B. Mon.

11 (54 Am. Deo. 509). 353, 361,

700, 737
Hammond v. Aiken, 3 Rich.

Eq. (S. Ca.) 119, - - 613,619

V. Douglas, 5 Ves. 539, - 658

; V. Hammond, 20 Ga. 556, 949

V. Harris, 2 How. Pr. 115,

V. Heward, 11 Up. Can. C.

P. 261,

V. Heward, 20 Up. Can.

Q. B. 36, - . - 474, 1094

V. Paxton, 58 Mich. 393, 395

V. St. John, 4 Terg. 107, 1055

Hamper, Ex parte, 17 Ves.

403, - . - 16, 55, 257

Hamsmith, v. Espy, 13 Iowa,

439, - - , - - 847, 848
Hancock v. Haywood, 3 T. R.

433, 728

380

474

Ixzxix

Han.]

TABLE OP CASES.

[Hab.

Hancock v. Hintrager,60 Iowa,

374, .... 109,205
Handlin, Re, 12 Bankr. Reg.

49; 3Biss. 290, - - - 1131

V. Davis, 81 Ky. 34, - - 88

Hanfl V. Howard, 3 Jones (N.

Ca.), Eq. 440, - - - 281
Hanger v. Abbott, 6 Wall. 532,

535, 582

Hankey v. Becht, 25 Minn.

212, - - - 257. 259
V. Hammock, Buck, 210 ;

8 Madd. 138, - - - - 600

Hanks v. Baber, 53 111. 292, - 770,

815, 888, 917

V. Hinson, 4 Porter (Ala.),

509, 285

Hanna v. Andrews, 50 Iowa,

463, - ... 667

V. Flint, 14 Cal. 73, - - 43, 60

V. Wray, 77 Pa. St. 27, - 737,

1170
Hanson v. Dodge, 134 Mass.

273, 655

V. Eustace, 2 How. 653, - 285

V. Paige, 8 Gray, 239, 457, 754

Hanway v. Robertshaw, 49

Miss. 758 ; R. v. H. 52 i4. 713, 719
Hapgood.v. Corn well, 48 111.

64, - - - - 551, 552, 560
Haralson v. Campbell, 63 Ala.

278, .... 1064, 1180
Harbour v. Reeding, 3 Mon-
tana, 15, -. - - - 303
Hardeman v. Tabler, 36 La.

Ann. 555, .... 457
Harding, Ex parte, 12 Ch. D.

557, 453a

V. Foxcroft, 6 Me. 76, - 70, 71

V. Glover, 18 Ves. 381, - 995

V. Hagar, 63 Me. 515, 178, 269

Hardy v. Blazer, 29 Ind. 326, - 504

V. Cheney, 43 Vt. 417, - 1050,

1151, 1153

V. Donellan, 33 Ind! 501, 409

V. MitcheU, 67 Ind. 485, 569,

825

Hardy v. Norfolk Mfg. Co. 80

Va. 404, - - 72,281,531,882

V. Overman, 36 Ind. 549, 569,

848, 1130
Hare, Ex parte, Deac. 16; 2

Mont. & A. 478, - - 263

Harferd v. Street, 46 Iowa,

594, 1091

Hargrave v. Conroy, 19 N. J.

Eq. 381, - 48, 49, 933

Hargreaves, Ex parte, 1 Cox,

440, - - - - 887

Harkey v. Tillman, 40 Ark.

551. 278

Harlan v. Moriarity, 3 Q.

Greene (Iowa), 486, - - - 543
Harland v. Lilienthal, 58 N. Y.

438, 110

Harlow v. Rosser, 28 Ga. 219, 410
Harman V. Johnson, 2 E. & B.

61 (rev. S. C. 3 Car. & K.

272), .... 329, 477
Harmon v. Clark, 18 Gray,

114, - 453, 552, 553, 838, 842
Harper, Ex parte, 1 De G. &

J. 180, 249

V. Fox, 7 Watts & S. 143, 377

V. Godsell, L. R. 5 Q. B.

433, - - - - 374

T. Lamping, 83 Cal. 641, 481,

810, 973, 974, 976

V. Wrigley, 48 Gra. 495, 383,

411, 435
Harrington v. Churchward, 39

L. J. Ch. 531 ; 6 Jur. N. S.

576; 8 W. R. 303, - - 933
V. Higham, 13 Barb. 660 ;

15 id. 534, .... 386
Harris, Ex parte, 1 Rose, 437;

2 Ves. & B. 310, 836, 837, 838, 839

V. Farewell, 15 Beav. 31, 519,

533

V. Farwell, 13 Beav. 403, 838

v. Fleming, 13 Ch. D. 308, 907

— V. Harris, 15 Ala. 710, - 860
-^ V. Harris, 39 N. H. 45, - 849,
852, 861
xc

Has.]

TABLE OF CASES.

[Hab.

Harris v. Hillegaes, 54 Cal. 463, 49,
675, 589, 945, 952
V. Lindsay, 4 Wash. C. C.

96, id. 371, - - 520, 523
— - V. McGregor, 39 Cal. 134, 5
V. McLeod, 14 Up. Can.

Q. B. 164, - - - 349, 858
V. Miller, Meigs (Tenn.),

158 (33 Am. Dec. 138), 305, 420, 438

V. Peabody, 73 Me. 262, 824,

825, 832, 833
- — V. Pearce, 5 111. App. 623, 437,

723

V. Visscher, 57 Ga. 339, - 1131

V. Wade, 1 Chit. 332, - 380

V. Wilson, 7 Wend. 57, - 701

Harrison, Ex parte, 3 Rose, 76, 70

V. Armitage, 4 Mad. 143, 910, 913

V. Bevington, 8 O. & P.

708, - - - - - - 1032

V. Close, 2 Johns. 448, - 385

T. Dewey, 45 Mich. 173, - 962

V. Farrington, 36 N. J.

Eq. 107(afEd. 37 id. 316), - 940
V. Farrington, 38 N. J.

Eq. 1, - - - - 964
V. Farrington, 38 N. J.

Eq. 358, . ... 964
V. Farrington, 40 N. J.

Eq. 553,
V. Fitzhenry, 3 Esp. 238,

V. Gardner, 2 Madd. 198,

V. Jackson, 7 T. E. 307,

964
1016,
1033

663
414,

416, 1088
V. McCormick, 69 Cal.

616, - - 195, 454, 1049, 1095
V. Pope (Iowa Dist. Ct.

1855), 4 Am. Law Reg. (O.

S.), 313, 534

- — V, Righter, 11 N. J. Eq.

389, . - - - 934, 935

V. Sterry, 5 Cranch, 389, 340

Harrod v. Hamer, 32 Wis. 16?, 3
Harryman v. Roberts, 53 Md.

64-77; 30 Am. Law Reg. (N.

H.)373, ... - 331

Harshfleld v. Claflin, 25 Kan.

166(37 Am. Rep. 237), - - 1101
Hart's Case, 1 Ch. D. 307, - 459
Hart V. Alexander, 7 C. & P.

746, - - - 530, 616, 631, 633
V. Alexander, 2 M. & W.

484, 505, 530, 523, 616, 617, 621, 622

V. Anger, 38 La. Ann. 341, 698

V. Clarke, 6 DeG. M. & G.

232 (reverses 19 Beav. 349) ;

aflfd. in Clarke v. Hart, 6 H.

L. C. 633, - - - 341, 785
T. Clarke, 6 H. L. Cas. 633

(aflfg. 6 DeG. M. & G. 333), 574

V. Kelley, 83 Pa. St. 386, 23,

47, 48, 507, 510, 511

V. Long, 1 Rob. (La.) 83, 696

V. Tomlinson, 3 Vt. 101, 507, 557

T. Withers, 1 Pa. 385 (21

Am. Dec. 383), - - 421, 422

V. Woodruff, 24 Hun, 510, 700

Hartan v. Eastern E. 9- 114

Mass. 44, - - - - 66
Harter v. More, 5 Blaokf. 367, 423
Hartford F. Ins. Co. v. Ross,

23 Ind. 179, - - - - 373
Hartley v. Manton, 5 Q. B. 347, 386

V. White, 94 Pa. St. 31, 1045

Hartman's Appeal, 107 Pa. 327, 835
Hartman v. Woehr, 18 IST. J.

Eq. 383, 86, 577, 578, 589, 591, 780,

781
Hartness v. Thompson, 5 Johns.

160, 148

Hartnett v. Fegan, 3 Mo. App.

1, 300, 734

Hartung v. Siccardi, 3 E. D.

Smith, 660, ... - 1080
Hartz V. Schrader, 8 Ves. 317, 741,
990, 1000, 1003
Harvey V. Childs, 28 Oh. St.

319 (32 Am. Rep. 387), 23, 47

-^— V. Criokett, 5 M. & S. 336, 755

V. Mo Adams, 33 Mich. 472, 334,

465
V, Penny backer, 4 Del. Ch.

445, .... 284, 909

zci

Hak.]

TABLE OF CASES.

[Hay.

Harvey v. Varney, 98 Mass. 118, 114,

122, 921

V. Vamey, 104 Mass. 436, 766,

789, 983, 1005
Harwood v, Jarvis, 5 Sneed,

375, 399

Hasbrouck v. Childs, 3 Bosw.

105, - - - 813, 816, 818
Haseltine v. Madden, 7 Eich.

(S. Ca.) L. 16, - - - 1163
Haskell v. Adams, 7 Pick. 59, 73,

852

V. Champion, 30 Mo. 136, 201

V. Moore, 39 Cal. 487, 239, 850,

881

V. Vaughn, 5 Sneed, 618, 851

Haskins v. Alcott, 13 Oh. St.

210, ... - 1061,1066

V. Burr, 106 Mass. 48, - 81

V. D'Este, 133 Mass. 356, 174,

191, 1078

V. Everett, 4 Sneed, 531, 1105

V. Warren, 115 Mass. 514, 43

Hasleham v. Young, 5 Q. B.

833; Dav. & Mer. 700, - 349, 350
Haslett V. Street, 2 McCord,

310 (13 Am. Dec. 724), 1090, 1093
V. Wotherspoon, 3 Rich.

(S. Ca.) Eq. 395, . - 8, 538
Hasselman v. Douglass, 53

Ind. 252, - . - 639, 683
Hastings v. Hopkinson, 28 Vt.

108, - - 95, 333, 334, 335

Hastings Nat. Bank v. Hib-

bard, 48 Mich. 453, 100, 107, 196
Hatch V. Wood, 43 N. H. 633, 1033,

1054
Hatchett v. Blanton, 73 Ala.

423, . - - 281, 285, 288
Hatheway's Appeal, 52 Mich.

112, - - - 317, 368, 700
Hatt, In re, 7 Up. Can. L. J.

103, .... 175, 176
Hatton V. Stewart, 3 Lea, 233, 694,

695, 698
Hatzenbuhler v. Lewis, 51

Mich. 585, .... 1070

Haughey v. Strickler, 8 Watts

& S. 411, .... 1154
Havana, Rantoul & Eastern E.

E. V. Wash, 85 111. 58, . - 1019
Haven v. Goodel, 1 Disney, 26, 694,

695

V. Wakefield, 39 HI. 509, 900,

905
Havens v. Hussey, 5 Paige, 30, 338,

683
Hawes v. Dunton, 1 Bailey

(S. Ca.), 146 (19 Am. Dec.

663), 353

V. Tillinghast, 1 Gray, 289, 71

■ V. Waltham, 18 Pick.

451, 1103

Hawkeye Woolen Mills v.

Conklin, 26 Iowa, 433, - 560, 834
Hawkins v. Appleby, 3 Sandf.

431, 472

V. Hastings Bank, 1 DU.

Ion, 463; 4 Bankr. Reg. 108, 416.

418

V. Lasley, 40 Oh. St. 37, - 1U66

V. Lee, 8 Lea, 43, - - 700

V. Mclntire, 45 Vt. 496, 43, 59,

66
Hawks V. Hincholifl, 17 Barb.

493, 58S

Hawkshaw v. Parkins, 2

Swanst. 539, ... 383, 415
Hawley v. Atherton, 39 Conn,

309, 1126

v. Dixon, 7 Tip. Can. Q. B.

318, 45

V. Hurd, 56 Vt. 617, - 1068

V. Keeler, 62 Barb. 231

(afEd. 53 N. Y. 114), - . 68
Hawtayne v. Bourne, 7 M. &

W. 595, 320

Hayden, Ex parte, 1 Brown's

Ch. 453, ----- 882

V. Cretcher, 75 Ind. 108, 693.

694

V. Hill, 52 Vt, 259, - - 63.1

Haydon v, Crawford, 3 Up.

Can. Q. B. (old ser.) 583, . 45, 59

Hat.]

TABLE OF CASES.

[Hbi-

Hayes v. Baxtei', 65 Barb. 181, 867

V. Bement, 3 Sandf. 394, - 906

V. Fish, 36 Oh. St. 498, - 855

V. Heyer, 3 Sandf. 298, - 388

V. Heyer, 4 Sand. Ch. 485, 981

V. Heyer, 35 N. Y. 336, - 906

V. Knox, 41 Mich. 529, - 534

Hayman, Ex parte, 8 Ch. D. 11, 105,

155, 840
Hayner v. Crow* 79 Mo. 293, - 364
Haynes v. Carter, 13 Heisk, 7, 613,

616, 617

V. Sechrest, 13 Iowa, 455, 293,

416, 417, 430
Hay's Appeal, 91 Pa. St. 265, - 284,
286, 794, 797, 1171
Haythom v. Lawson, 3 C. &

P. 196. 1031

Hayward v. French, 13 Gray,

453, - - - 348, 358, 1170
Haywood v. Harmon, 17 111.

477, - - - 336, 889, 1074
Hazard v. Caswell, 93 N. Y,
' 259 (rev, 14 J. & Sp, 559), - 198,

663, 675

V. Hazard, 1 Story, C. C.

371, 43,56

Hazlehurst v. Pope, 2 Stew. &

Per. 259, - - - 883, 884
Head v. Goodwin, 37 Me. 181, 471

V. Horn, 18 Cal. 211, - 567

Headley v. Shelton, 51 Ind.

388, 639

Health v. Percival, 1 P. Wms.

682; 1 Stra. 403, - - - 519
Heap V. Dobson, 15 C. B. N. S.

460, 80

Heartt v. Corning, 3 Paige, 566, 978,

979

V. Walsh, 75 III. 200, - 383,

683, 709, 715, 736
Heath v. Goslin, 80 Mo. 310 (50
Am. Rep. 505), ... 75

V. Sansom, 2 B. & Ad. 173, 362,

570, 577, 585, 597, 608, 694

V. Waters, 40 Mioh. 457, 309,

738, 743, 770, 775, 789

Heathoot v. Ravenscroft, 6 N.

J. Eq. 113, - - - 995, 996
Heaton, Ex parte. Buck, 386, - 481
Heberton v. Jepherson, 10 Pa.

St. 124, 695

Heckert v. Fegely, 6 W, & S.

139, 80

Heckman v. Messinger, 49 Pa.

St. 465, - ... ^ 835
Hedden v. "Van Ness, 2 N. J. L.

84, 749

Hedge & Horn's Appeal, 63 Pa.

St. 373, - . . - 73, 74, 83
Hedges v. Armistead, 60 Tex.

376, ...'.. 1086
Hedley v. Bainbridge, 3 Q. B.

316, .... 339, 343
Hedrick v. Osborne, 99 Ind.

143, - - - , . - 1131
Heenan v. Nash, 8 Minn. 407, 199,

441
Hefferman v. Brenham, 1 La.

Ann. 146, - - 1059, 1062

Heffron v. Hanaford, 40 Mich.

305, - 333, 849, 863, 3<59, 1151
Heflebower v. Buck, 64 Md. 15, 993,

995, 999
Hefner v. Palmer, 67 111. 161, 47,

91, 94
Hegeman v. Hegeman, 8 Daly,

1, 670

Heighe v. Littig, 63 Md. 301, . 55
Heilbut V. Nevill, L. R. 4 C. P.

354, - 750, 1044, 1046, 1048

Heimstreet v. Howland, 5

Den. 68, ... 45, 59

Heineman v. Hart, 55 Mioh.

64, 566

Heintz v. Cahn,' 39 111. 808, - 1072
Heirn v, McCaughan, 33 Miss.

17,

Heise v. Earth, 40 Md. 259, .

Hellman v. Reis, 1 Cint. Su-
perior Ct. Rep. 30 (affd. in
25 Oh. St. 180), - - -

Hells V. Coe, 4 McCord, L.
186,

462
32

761

XCIU

Hel.]

TABLE OF CASES.

[Hew.

Helme v. Smith, 7 Bing. 709, 70,

868. 875
Helmore v. Smith, 35 Ch, D.

436, - 311, 581, 584, 657, 1103
Helsby v. Mears, 5 B. & C.

504, 608

Henderson v. Barbee, 2

Blatchf. 26, - - - 416, 419

V. Carveth, 16 Up. Can.

• Q. B. 834, - - - 349, 862
V. Haddon, 12 Rich. (S.

Ca.) Eq. 393, - - 838, 566, 1109
V. Hudson, 1 Munf. (Va.)

510, - - - 303

V. Nicholas, 67 Gal. 153, - 404

V. Stetter, 31 Kan. 56, - 1029

V. Wadsworth, 115 U. S.

364, 507

Hendrick v. Gunn, 35 Ga. 234, 57
Heniirie v. Berkowitz, 87 Cal. '

113, - - 349, 358, 363, 867
Hendry V. Turner, 33 Ch. D.

855, - . . . 610, 618
Henley v. Soper, 8 B. & C. 16;

3 Man. & Ry. 166, - - 860

Henn v. Walsh, 3 Edw. (N. T.)

Ch. 139, 594

Hennegin v. Wilcoxon, 18 La.

Ann. 383, . - - . 851
T. Wilcoxon, 13 La. Ann.

576, 853

Hennessy v. Western Bank, 6

Watts & S. 800 (40 Am. Dec.

560), ... - 338, 418
Henningv. Raymond, 35 Minn.

339, .... 1008

Henry v. Anderson, 77 Ind.

361, - - 173,184,388,375

V. Bassett, 75 Mo. 89, 181, 589,

770, 780

V. Jackson, 37 Vt, 481, 76, 211,

760, 907
V. Mahone, 23 Mo. Ap'p.

83, - - - - 708

■ V. Willard, 73 N. Ca. 35, 1151

Henry County v. Gates, 26 Mo.

315, - - *- 414,418,421

Henshaw v. Root, 60 Ind, 230, 1074,

1146
Henslee v. Cannefex, 49 Mo.

295, 881

Hepburn, In re, 14 Q. B. D.

394, 843

Heran v. Hall, 1 B. Mon. 159

(35 Am. Dec. 178), - 43, 819

Herbert v. Hanrick, 16 Ala,

581, ... - 393, 417

V. Hanrich, 16 Ala. 389, - 416

V. Odlin, 40 N. H. 367, 391, 392

Hercy v. Birch, 9 Ves. Jr. 357, 1011
Herd v. Delp, 1 Heisk. 530, - 731
Herf oot v. Cramer, 7 Colorado,

483, 657

Herkimer, The, Stew. Adm.

33, 2

Hermanos v. Duvigneaud, 10

La. Ann. 114, - - 61, 69, 843
Heroy v. Van Pelt, 4 Bosw. 60, 530
Herrick, Re, 13 Bankr. Reg.

313, - - 305, 489, 535

V. Ames, 8 Bosw. 115, - 790

Herriott v. Kersey, 69 Iowa,

111, 901

Hershfield v. Claflin, 25 Kan.

166 (87 Am. Rep. 337), - 584, 1105
Hersom v. Henderson, 8 Fos-
ter (33 N. H.), 498, 265, 489, 445
Herty v. Clark, 46 Ga. 649, - 959
Herzog v. Sawyer, 61 Md. 344, 416,

421
Hesham, Ex parte,! Rose, 146, 837
Heshion v. Julian, 83 Iiid. 576, 43
Hesketh v. Blanchard, 4 East,

144, ..... 16
Hess V. Final, 33 Mich. 515, 850, 878

V. Werts, 4 S. & R. 361, 73, 458

Hester v. Lumpkin, 4 Ala. 509, 847,

509
Howard v. Slagle, 52 El. 336, 742
Hewes v. Bayley, 20 Pick. 96, 1039

V. Parkman, 20 Pick. 90, 438,

430
Hewitt .V. Kuhl, 35 N, J. Eq.

24, 850

Hew. J

TABLE OF CASES.

[HiN.

Hewitt V. Rankin, 41 Iowa, 35, 391,

298
V. Sturdevant, 4 B. Mon.

453, - - 70, 290, 401, 833
Heydon v. Heydon, 1 Salk.

392, 1100

Heye v. BoUes, 3 Daly, 331 ; 33

How. Pr. 266, - 563, 566

Heyhoe v. Burge, 9 C. B. 431, 3, 16
Heyne v. Middlemore, 1 Rep.

in Ch. 138, - 739, 923

Hiatt V. Gilmer, 6 Ired. L.

450, - ... 710

Hibbard v. Holloway, 13 111.

App. Ibl, - - - - 1086
Hibbert v. Hibbert, cited in

CoUyer on Partnership, § 203, 1013
Hibbler v. De Forest, 6 Ala.

93, .... 349, 362

Hickman v. Cox, 3 O. B. N. S.

533, 19

V. Kunkle, 27 Mo. 401, 329,343,

344, 361, 374
V. Reineking, 6 Blackf.

387, - - 347

Hicks V. Cram, 17 Vt. 449, - 109,

1053, 1153, 1155

V. Mahess, 19 Ark. 701, - 1051

V. Russell, 73 111. 330,. 341, 615,

626

V. Wyatt, 23 Ark. 55, - 503

Higdon V. Thomas, 1 Har. &

Q. (Md.) 139, .... 1030
Higgins, Ex parte, 3 De G. &

J. 33, 535

. V. Armstrong (Colorado),

10 Pac. Rep. 333, - 329, 374
V. Bailey, 7 Robt. (N. Y.)

613, ... - 1003

V. Rector, 47 Tex. 361, 749, 836,

838, 833
Higginson v. Air, 1 Desaus.

437, - - - 994, 999, 1003
High V. Lack, Phil. (N. Ca.)

Bq. 175, - 376, 403, 991, 996

Hill, Ex parte, 3 B. & P. 191,
note, . - - - 833, 833 1 101,
G xcv

Hill V. Beach, 13 N. J. Eq. 31, 6, 820,
831, 843, 845, 917, 1103
V. Bellhouse, 10 Up. Can.

C. P. 123, - - 23, 88

V. Hill, 55 L. T. N. 8. 769, 677

V, Matta, 12 La. Ann. 179, 770

V. McPherson, 15 Mo. 304, 883,

884

V. Marsh, 46 Ind. 318, 1037

V. Palmer, 56 Wis. 123 (43

Am. Rep. 703), - 870, 873, 889

V. Trainer, 49 Wis. 537, - 584

V. Treat, 67 Me. 501, - 733

V. Voorheis, 32 Pa. St. 68, 439

V. Wiggin, 31 N. H. 292, 186,

1102, 1105, 1106
Hilliard v. Eiffe, L. R. 7 H. L.

39, - - 926

Hilligsberg v. Burthe, 6 La.

Ann. 170, - - . 786, 787
Hilliker v. Francisco, 65 Mo.

598, - ■- 410, 452, 567, 1019
V. Loop, 5 Vt. 116 (26 Am. ,

Deo. 286), - 1019, 1050y 1023

Hillman v. Moore, 3 Tenn.Ch..

454, .-.,-. 105, 155

Hillock V. Traders' Ins. Co. 54,

Mich. 531, - -. -- -. 409
Hills V. Bailey, 37 Vt. 548, 779,..854
— - V. McRae, 9 Hare, 397, - 748
--— V. Nash, 1 Oh. 594, - - 930

V. Ross, 3 Dall. 331, - 380

Hilton V. McDowell, 87 N. Ca.

364, - - 331, 333, 1151
y. Vanderbilt, 82 N. Y.

591, , 683

Himelright v. Johnson, 40 Oh.

St. 40, - . 347, 36a

Hinds, Ex parte, 3 De G. & Sm.

613, - - - 361, 287, 838.
Hine v. Beddome, 8 Up. Can.

C. P. 381, 507, 510, 511, 51% 516
Hines v. Driver, 71 Ind. 125, - 657

V. KimbaU, 47 Ga. 587, - 1123

Hinkle v. Reid, 43 Ind. 390, - 635
Hinkley v. Giliigan, 34 Me.

701

HiN.]

TABLE OF CASES.

[Hog

Hinkley v. St. Anthony's Falls
Water Power Co. 9 Minn. 55, 1137

Hinman v. Littell, 23 Mich.
484, - - - - 99

Hinton v. Law, 10 Mo. 701, - 70

V. Odenheimer, 4 Joues'

Eq. 406, . ... 531

Hirley v. "Walton, 63 111. 260, - 59
Hirsch v. Adler, 31 Ark. 338, - 938

V. Im Thurn, 4 C. B. N. S.

■569, 233

Hirth V. Pfeifle, 42 Mich. 81, - 1135
Hiscock V. Phelps, 49 N. T.

97 (below, 2 Lans. 106), 184, 185,
187, 290, 291, 395, 822
Hitchcock V. St. John, Hoff.

Ch. 511, ... 338

Hitchens v. Congreve, 1 R. &

M. 150, 912

Hitchings v. Ellis, 12 Gray,

449, - ... 17, 39

Hite V. Hite, 1 B. Mon. 177, - 772
773, 778, 788, 963
Hittinger v. Westford, 135

Mass. 258, - 177

Hixon y. Pixley, 15 Nev. 475, - 621,
633, 624, 638
Hoadley v. County Comm'rs,

105 Mass. 519, - 176

Hoard v. Clum, 31 Minn. 186, 580,

739, 933
Hoare v. Dawes, 1 Doug. 371, 65, 71
V. Oriental Bank Corpora-
tion, L. R. 2 App.' Cas. 589, - 829
Hobart v. Ballard, 31 Iowa,

531, - - V - 83, 1003

V. Howard, 9 Mass. 304, - 639

Hobbs V. McLean, 117 U. S.

567, - ... Ill, 822

V. Memphis Ins. Co. 1

Sneed (Tenn.), 444, - - 273

V. Wilson, 1 W. Va. 50, - 510,

565, 634, 635
Hoboken Bank v. Beckman, 36

N. J. Eq. 83 (afiEd. 37 id. 331), 331
Hobson V. Porter, 3 Colorado,

28, - - -* - - - 416

Hocklessv. Mitchell, 4 Esp. 86, 415
Hockwell V. Eustman, Cro.

Jac. 415, - - - - 938
Hodge V. Twitchell, 33 Minn.

389, - ... 307

Hodgen v. Kief, 63 111. 146, - 612
Hodges V. Black, 8 Mo. App.

389 (affd. without opinion,

76 Mo. 537), - - - 881

V. Dawes, 6 Ala. 315,- - 43

V. Holeman, 1 Dana, 50, - 184,

830, 822

V. Kimball, 49 Iowa, 577,

1029
V. Ninth Nat. Bk. 54 Md.

406, - 317, 821, 350, 430
V. Parker, 17 Vt. 242 (44

Am. Dec. 331), ... 785
Hodgkins v. Merritt, 53 Me.

308, - - ,. 726

Hodgkinson, Ex parte, 19 Ves.

391, - - - 155, 383, 834
Hodgman v. Smith, 13 Barb.

303, ... 43

Hodgson, Ex parte, 2 Brown's

Ch. 5, . 825, 834

, In re, 31 Ch. D. 177, 539, 748

V. Baldwin, 65 III. 533, 73, 76,

458
Hoeflinger v.. Wells, 47 Wis.

638, - - - 440, 538, 524
Hoffman v. Mtna, F. Ins. Co.

33 N. Y. 405 (affg. 1 Robt.

501 ; 19 Abb. Pr. 335), 373, 373

V. Porter, 2 Brock. 158, - 296

Hogan V. Calveirt, 31 Ala. 194, 636,

687, 879

V. Reynolds, 8 Ala. 59, - 817, '

372, 382, 446
V. Reynolds, 31 Ala. 56 (56

Am. Dec. 336), - . .581
Hogarth v. Latham, 3 Q. B. D.

643, ... .341

Hogeboom v. Gibbs, 88 Pa. St.

335, ..... 1168
Hogendobler v. Lyon, 13 Kan.

276, - - - 685, 689, 1055

XCVl

Hoa]

TABLE OF CASES.

[Hou

Hogg V. Ashe, 1 Hayw. (N. Ca.)

471 ; S. C. Cam. & N. 3, 718, 733,
734, 781

V. Orgill, 34 Pa. St. 344, - 361,

700
V. Skeen, 18 C. B. N. S.

436, - - - - - 863
Hogle V. Lowe, 13 Nev. 286, 281,

386, 391
Hogarth v, Wherley, L. E. 10

C. P. 630, - ... 383
Hoile V. York, 27 Wis. 209, - 87
Holbrook, Re, 3 Low. 359, 346, 453,

843
-r. Chamberlin, 116 Mass.

155, - - 393, 416, 417
V. Lackey, 13 Met. 133 (46

Am. Dec. 736)i - 718, 733, 733

V. Oberne, 56 Iowa, 334, - 43

V. St. Paul F. & M. Ins.

Co. 35 Minn. 239, - 5, 6

V. Wight, 24 Wend. 169, 389

Holdane v. Butterworth, 5

Bosw. 1, 608, 623, 633

Holdeman v. Knight, Dallam

(Tex.), 556, - - - 417

Holden v. Bloxum, 35 Miss.

381, - - - . 200, 435

V. French, 68 Me. 341, - 59

V. McFaul, 21 Mo. 315, - 508

V. McMakin, 1 Pars. Sel.

Cas. (Pa.) 370, - - 658, 1001

V. Peace, 4 Ired. (N. Ca.)

• Eq. 333, - - 786, 787, 798

Holderness v. Shackels, 8 B. &

C. 162, - - - 758, 845

Holdrege v. Gfwynne, 18 N.

J. Eq. 36, - - - 545, 790
Holdri(Jge v. Farmers' & Mech.

B'k, 16 Mich. 66, - - 387

Holdsworth, Ex parte, 1 M. D.

&D. 475, - - - 323

Holifleld V. White, 53 Ga. 567, 61
Holkirk v. Holkirk, 4 Madd.

50, - - - 383, 1027

Holladay V. Elliott, 3 Oregon,

340, .... 591, 936

HoUaday v. Elliott, 8 Oregon,

84, - - - - 672, 593, 796
Holland v. Drake, 39 Oh. St.
441, .... 338, 339

V. Fuller, 13 Ind. 195, 184, 731

V. King, 6 C. B. 737, - 249

V. Long, 57 Ga. 36, - 96, 156,

301, 444, 608

V. Teed, 7 Hare, 50, - 649

HoUembaek v. More, 44 N. T.

Superior Ct. 107, - - - 483
Hollis V. Staley, 3 Baiter, 167, 551
Hollister, Re, 3 Fed. Rep. 453, 835

V. Barkley, 11 N. H. 501, 764

HoUoway v. Brinkley, 43 Ga.

226, - - 59

— V. Turner, 61 Md. 217, 335, 693,

785, 786, 935, 949
Holman v. Langtree, 40 Ind.

349, ... 535

V. Nance, 84 Mo. 674, 733, 738,

858
Holme V. Allan, Tayl. (Up.

Can.) 348, - - - - 377
V. Hammond, L. R. 7 Ex.

318, - 18, 52, 154, 747

Holmes' Appeal, 79 Pa. St. 379, 743
Holmes v. Bigelow, 3 Desaus.

(S. Ca.) 497, ' - - 761

V. Brooks, 68 Me. 416, - 733,

1170
-L- — V. Burton, 9 Vt. 353 (31

Am. Dec. 631), - 439, 445, 446
V. CaldXvell, 8 Rich. (S.

Ca.) L. 347, ... 507
V. D'Camp, 1 Johns. 34 (3

Am. Dec. 393), 719, 733
V. Hawes, 8 Ired. (N. Ca.)

Eq. 31, 561

V. Higgins, 1 B. & C. 74, 89,

770, 854

V. Hubbard, 60 N. Y. 183, 644,

961
V. Kortlander (Mich.), 81

N. W. Rep. 533, - - - 429
V. McCray, 51 Ind. 358

(19 Am. Rep. 735), • - 303

HOL.]

TABLE OF CASES.

LHos.

Holmes v. McDowell, 15 Hun,

585 (affd. without opinion,

76 N. Y. 596), - 935, 1006

V. McGee, 27 Mo. 597, - 297

V. "Menze, 4 A. & E. 127, 1109

V. Old Colony E. E. 5 Gray,

58, - - 43,45,46

V. Porter, 39 Me. 157, 231, 1139

V. Self, 79 Ky. 297, - 285

V. Shands, 37 Miss. 40, - 707

V. United F. Ins. Co. 2

Johns. Cas. 329, - - 71
V. Winchester, 138 Mass.

542, - - - 1131

Holt's Appeal, 98 Pa. St. 257, - 289
Holt V. Kernodle, 1 Ired. L.

199, '- - - - 35
V. Simmons, 16 Mo. App.

97, 319, 327, 328, 341, 364, 403,

406, 427, 607, 611, 621, 970
Holtgreve v. Wintker, 85 111.

470, - - 631, 634

Holton V. Holton, 40 N. H. 77, 569,

835, 847

V. McPike, 27 Kan. 286, 391, 408

Holyoke v. Mayo, 50 Me. 385, 854,

886, 888, 957

Homer v. Homer, 107 Mass. 82, 284

V. Wood, 11 Cush. 63, 1087

Homfuay v. Fothergill, L. E.

1 Eq. 567, - - - - 243
Honey, Ex parte, L. E. 7 Ch.

App. 178, - - - - 841
Honore v. Colmesnil, 1 J. J.

Mar. 506, 181, 182, 761, 764, 771,
962, 985, 1003

V. Colmesnil, 7 Dana, 199, 788,

976
989
411,
424

V. Spencer, 4 McLean, 168, 504,

636, 637, 879
Hook V. Stone, 34 Mo. 329, 338

Hookham v. Pottage, L. E. 8

Ch. 91; 37 L. T. N. S. 595;

21 W. E. 47, - , 663, 664, 666, 669

Hood V. Aston, 1 Euss. 413, -
V. Eiley, 15 N. J. L. 127,

Hooley v. Gieve, 9 Daly, 104;

9 Abb. New Cas. 271 (afifd.

without opinion, 73 N. Y.

599), - - - , - 739, 741
Hooper v. Keay, 1 Q. B. D. 178, 489,

497

V. Lusby, 4 Camp. 66, - 409

Hoopes V. McCan, 19 La. Ann.

201, - 533, 537, 528, 534

Hopkins, Ex parte, 104 Ind.

157, 1131

V. Banks, 7 Cow. 650, - 700

V. Boyd, 11 Md. 107, 349, 353,

357

V. Carr, 31 Ind. 360, 533, 524,

647

V. Forsyth, 14 Pa. St. 34, 70

V. Hull, 17 Md. 73, - - 1053

V. Johnson, 3 La. Ann.

843, .... 504

V. Watt, 13 111. 398, - 309

Hopkinson v. Smith, 1 Bing.

13; 7 Moo. 343, - - 110,437
Hopley V. Wakefield, 54 Iowa,

711, - - - 954

Hopper V. Lucas, 86 Ind. 43, 377,

379
Hoi'back v. Huey, 4 Watts,

455, - 435, 544, 1034

Horn V. Newton City B'k, 33

Kan. 518, - - 339, 341, 343
Horneffer v. Duress, 13 Wis.

[603], 137

Horsey v. Heath, 5 Oh. 353, 13, 442,

524, 747, 750

Horton's Appeal, 13 Pa. St. 67, 276,

570, 577, 585

Horton v. Child, 4 Dev. L. 460, 430,

422
Horton Mfg. Co. v. Horton

Mfg. Co. 18 Fed. Eep. 816, 671, 672
Hosackv. Eogers, 8 Paige, 229, 385
Hoskins v. Johnson, 34 Ga.

625, - - - - 1125

Hoskisson v. Eliot, 62 Pa. St.

393, 315, 319, 323, 32? 339, 341,

370, 877, 430, 432, 427, 523, 724, 749

Hos.]

TABLE OF CASES.

[Hox. ,

Hosmer v. Burke, 26 Iowa, 353, 172

Hotchin v. Kent, 8 Mich. 526, 317,

823, 325, 426, 429

V. Secor, 8 Mich. 494, 528, 524

Hotcliljiss V. English, 4 Hun,

369; 6 N. Y. Supreme Ct.

658, - -. - 43, 345

V. Ladd, 36 Vfc. 593, - 448, 647

V. Ladd, 43 Vt. 345, - 448

Hot Springs R. E. v. Trippe,

42 Ark. 465 (48 Am. llep. 65), 66,

134
Hottenstein v. Conrad, 9 Kan.

435, ... - 996,1002
Hough V. Perkins, 2 How.

(Miss.) 724, - - - 636, 637
Houlton's Case. See Devaynes

V. Noble.
Hourquebie v. Girard, 2 Wash.

C. O. 213, - - 799, 800

House V. Thompson, 3 Head

(Tenn.), 512, - - - 847, 848
Houseal's Appeal, 45 Pa. St.

484, - - - 836, 837

riouser V. Irvine, 3 Watts & S.

345 (38 Am. Deo. 768), 695, 700, 705

V. Riley, 45 Ga. 126, 482, 483

Houston V. Brown, 23 Ark.

833, - - 849, 851, 1081

V. Stanton, 11 Ala. 412, - 13

Ilovey V. Cassels, 30 Up. Can.

C. P. 230, - - 441

How V. Kane, 3 Pin. (Wis.)

531; 3 Chand. 322 (54 Am.

Dec. 153), - - 153. 155, 535
Howard, In re, 4 Bankr. Reg.

571, - - . . 841
V. France, 43 N. Y. 593, - 868

V. Henriques, 3 Sandf.

735, ... .674
V. Jones, 50 Ala. 67 (now

overruled), .... 1131
V. McLaughlin, 98 Pa. St.

440, ..... 1103

V. Patrick, 38 Mich. 795^ 856,

981, 1136
V. Patrick, 43 Mich. 131, 1137

Howard v. Priest, 5 Met. 583, 281,
290, 298, 294, 823
V. Shaw, 91 Ind. 384; 46

Am. Rep. 607, - - - 136

V. Stephens, 52 Miss. 239, 136,

137
Howden, Ex parte, 3 M. D. &

D. 574, ... 70, 401
Howe V. Howe, 99 Mass. 71, 257, 868
V. Lawrence, 9 Cush. 553

(57 Am. Dec. 68), 551, 560, 833

V. Sa-very, 49 Barb. 408 ;

51 N. Y. 631, - - - 1022
V. Searing, 6 Bosw. 854 ;

10 Abb. Pr. 264, 657, 658, 664, 671

V. Shaw, 56 Me. 391, - 471

V. Snow, 3 Allen, 111, 1079,

1084

V. Thayer, 17 Pick. 91, - 623,

627, 1159
Howell V. Adams, 68 N. Y.

314, - 152, 445, 609, 613, 1154

V. Brodie, 6 Bing. N. C.

44, 88

V. Harvey, 5 Ark. 270 (39

Am. Dec. 376), 571, 577, 578, 593,
593, 595, 931, 933, 988

V. Howell, 15 Wis. [55] 60, 545,

790

V. McFarland, 3 Ont. App.

31, 416

V. Reynolds, 13 Ala. 128, 1024

V. Sewing Mach. Co. 12

Neb. 177, 347, 863, 446, 507, 509,

510, 511

V. Teel, 29 N. J. Eq. 490, 847

Howland v. Davis, 40 Mich.

545, 889

Howry v. Eppinger, 34 Mich.

29, 901

Howze V. Patterson, 53 Ala.
205 (35 Am. Rep. 607), 338, 341,
348, 370
Hoxie V. Carr, 1 Sumner, C. C.
178, 28i; 291, 395, 397, 834, 933

V. Chaney, 143 Mass. 592, 663,

664, 669

Hoy.]

TABLE OF CASES.

[Hun.

Hoyt V. Bonnett, 50 N. Y. 538
(rev. 58 Barb. 539), - - 750

V. Hoyt, 69 Iowa, 174, - 1131

V. Murphy, 18 Ala. 316, 504,

1081, 1083, 1169

V. Murphy, 33 Ala. 456, 1167,

1168

V. Robinson, 10 Gray, 371,

373, 1185

V. Sprague, 103 U. S. 613, 556,

739, 743, 952

V. Sprague, 12 Chic. Leg.

News, 25 (a£Ed. 103 U. S. 613), 743

Hubbard v. Curtis, 8 Iowa, 1, 825,

938, 1109, 1111, 1113

V. Galusha, 23 Wis. 898, G93

V. GuUd, 1 Duer, 662, 241, 583,

754, 995, 1003

V. Matthews, 64 N. Y. 43

(13 Am. Rep. 562), 86, 849, 398,

707

V. Miller, 37 Mich. 15, - 676

V. Pace, 34 Ark. 80, - 761

V. Winsor, 15 Mich. 146, 176

Hubbardston Lumber Co. v.

Bates, 81 Mich. 158, - 390

V. Covert, 35 Mich. 254, 179,

1086, 1124
Hubbell V. Perin, 3 Oh. 287, 747

V. Skiles, 16 Ind. 138, - 1067,

1070

V. "Woolf, 15 Ind. 204, - 87

Hubble V. Perrin, 3 Oh. 287, - 847,

848
Huckabee v. Nelson, 54 Ala.

12, . - - - 64, 65

Hudgins v. Lane, 11 Bankr.

Reg. 462, - - -- 753, 754
Hudson V. Barrett, 1 Pars.

(Pa.)SeL Cas. 414, - - 910

V. Hunt, 5 N. H. 538, - 1125

V. McKenzie, 1 E. D.

.Smith, 358, - - - 401
V. Osborne, 39 L. J. Ch.

79, - - - 664, 667, 669
V. Robinson, 4 M. & S.

475, 1169

Hudson V. Simon, 6 Cal. 453, - 1147
Huff V. Cameron, 1 Up. Can.

Prac. Rep. 255. - - - 377

V. Lutz, 87 Ind. 471, 785, 825

Huffman v. Copeland, 86 Ind.

334, - ' - - - 139, 140
Hughes, Re, 16 Bankr. Reg. .

464,

V. Devlin, 33 Cal. 501, -

v. Ellison, 5 Mo. 463,

V. Trahern, 64 III. 148, -

V. Walker, 4 Blackf. 50,

Huguley v. Morris, 65 Ga. 666,

1131
976
338
733
1067
876,
408

Huiskamp v. Moline Wagon

Co. 131 U. S. 810 (reversing

S. C. as Moline Wagon Co. v.

Rummell, 3 McCrary, 307;

13 Fed. Rep. 658; 14 id. 155), 547,
559, 560, 561, 565
Hulett V. Fairbanks, 40 Oh. St.

233, - - 33, 304, 311

Hull V. Garner, 31 Miss. 145, 377,

380
Hulse's Estate, 11 Weekly

Notes (Pa.), 499, - - '548, 829
Human v. Cuniffe, 32 Mo. 316, 418
Hume V. Bolland, Ry. & Moody,

370; ICr. & M. 130; 2 Tyr.

575, - ... 474

V. Watt, 5 Kan. 34, - 398

Humes v. O'Bryan, 74 Ala. 64, 101,

817, 833, 1143, 1151, 1153, 1155, 1156,

1157
Humphreys v. Matthews, 11

■111. 471, .... 894

V. Mooney, 5 Col. 282, . 4

Humphries v. Chastain, 5 Ga.

166 (48 Am. Dec. 247), 690, 694

V. McCraw, 5 Ark. 61, . 64

Hunnicutt v. Summey, 68 Ga.

586, - . . . 1131, 1132
Hunt V. Benson, 3 Humph.

(Tenu.) 459, . . 381, 544

V. Chapin, 6 Lans. 139, - 329.

848, 371
V. Drane, 32 Miss. 343, - 723

Hun.]

TABLE OF CASES.

[Htrw.

Hunt V. Erikson, 57 Mich. 330, 38

V. Gookin, 6 Vt. 463, - 736

V. Gorden, 53 Miss. 194, 899, 937

V. Hall, 8 Ind. 315, - 370, 607

V. Hardwick, 68 Gia. 100, 961

V. Jucks, 1 Hayw. (N. Ca.)

173 (1 Am. Deo. 555), - 1155

V. Morris, 44 Miss. 314, 378,

541, 858, 893

V. Pfeifler, 108 Ind. 197, 113,

138

V. Eeilly, 50 Tex, .99, - 889

V. Rogers, 7 Allen, 469, - 634,

635, 647

V. Royal Exchange Assur.

Co. 5 M. & S. 47,

V. Roylance, 11 Gush. 117,

V. Semonin, '79 Ky. 370,

V. Smith, 3 Rich. Eq. 465,

V. Stuart, 53 Md. 335,

V. Tibbetts, 70 Me. 331, -

Hunter, Ex parte, 1 Atk. 338, -

V. Aldrich, 53 Iowa, 443,

409
1143

195
184,

187

964

663
835,

836
978,

979

V. Belcher, 3 De G., J. &

Sm. 194,
V. Hempstead, 1 Mo. [67]

48 (13 Am. Dec. 468), -

V. Hubbard, 36 Tex. 537,

701, 1135

V. Land, 81^ Pa. St. 396, - 873

V. Martin, 3 Rich. (S. Ca.)

L. 541,

V. Martin, 57 Cal. 365, -

V. Parker, 7 M. & W. 333,

V. Smith, 14 Wis. 683,

V. Waynlck, 67 Iowa, 555,

404, 405

V. Whitehead, 43 Mo. 534, 303

Huntington v. Lyman, 1 D.

Chip. (Vt.) 438 (13 Am. Dec.

716), - - - 349, 363

V. Potter, 33 Barb. 300, 681, 683

Huntley V. Huntley, 114 U. S.

394, ... - 308, 309

954

397
150,

396
1068
418
396
340,

Huntoon v. Dow, 39 Vt. 315, - 1045
Hupp v.. Hupp' 6 Gratt. 310, - 533,

635, 879
Hurd V. Haggerty, 34 111. 171, 331,
448, 356, 1153
Hurlbert v. Dean, 3 Keyes, 97

(3 Abb. App. 438), 586

Hurlbut V. Johnson, 74 111. 64, 558,

1109

V. Post, 1 Bosw. 38, - 151, 1053

Hurst V. Hill, 8 Md. 399 (63

Am. Dec. 705), 694

Hurt V. Clarke, 56 Ala. 19; 38

Am. Rep. -751, - 429

y. Salisbury, 55 Mo. 310, - 5

Huston V. Neil, 41 Ind. 504, - 390,

937
Hutcheson v. Smith, 5 Irish

Eq. 117, 770, 780, 788

Hutching v. Bank, of Tenn. 8 /

Humph. 418, - 613, 616

V. Buckner, 3 Mo. App.

594, - - - - 78, 1137

V. Childress, 4 Stew. i&

Por. 34, ... 331
T. Gilman, 9 N. H. 359, - 317

V. Hudson, 8 Humph.

436, - - - - 373, 613

V. Sim, 8 Humph. 423, - 613

Hutchinson v. Dubois, 45

Mich. 143, - - 1106
V. Onderdonk, 6 N. J. Eq.

377 (reversed, id. 633), 767, 771

V. Paige, 67 Wis. 306, - 930

V. Smith, 7 Paige, 36, 483, 483,

736, 733

V. Whitfield, Hayes

334, 575

Q.

- 80

- 385

- 933,
934

Hutzler v. Phillips (S. Ca.), 1
S. E. Rep. 502, ~ - 836, 847

Huwer v. Dannenhofifer, 83 N.
Y. 499, - - - - 663, 675

(Irish), 78, -
Hutton V. Bullock, L. R, 8

B. 831 (afied. in 9 id. 573),
— - V. Eyre, 6 Taunt. 389,
V. Laws, 55 Iowa, 710,

HUY.]

TABLE OF CASES.

[Jac.

Huyck V. Meador, 24,Ark. 191, 880
Hyaraa v. Eogers, 24 La. Add.

230, - - - 457

Hyat V. Hare, Comberbach,

383, - 873, 722, 724, 746

Hyde v. Easter, 4 Md. Ch. 80, 798
Hydeville v. BarDes, 37 Vt.

588, 899

Hyer v. Burdett, 1 Edw. Ch.

325, - - 924, 925

Hyman v. Stadler, 68 Miss.

362, - - - 537

Hynes v. Stewart, 10 B. Mod.

429, - - - - 595

Hyrschfelder v. Keyser, 59

Ala. 338, .... 403

I.

Iddinga v, Bruen, 4 Sandf. Ch.

233, - - 303, 645

V. Pierson, lOO lad. 418, 200,

607
Ide V. Ingraham, 5 Gray, 106, 701
Ihmsen v. Lathrop, 104 Pa. St.

365, ... 97, 101

V. Negley, 25 Pa. St. 297, 359

Inbusch V. Farwell, 1 Black,

566, -• - - -1086,1089
Indiana Pottery Co. v. Bates,

14 Ind. 8, ^ - - - 285

Ingalls, Ee, 5 Boston Law Rep.

401, 825

Ingersoll v. RobinsoD, 35 Ala.

292, 1081

Inglebright v. Hammond, 19

Oh. 387 (53 Am. Dec. 430), 1155
Ingraham v. Foster, 31 Ala.

123, - - - 81, 591, 940

V. Gildermester, 2 Cal. 88, 1086,

1093
Innes v. Stephenson, 1 Moo. &

Ry. 145, - - . - 384

International Bank v, Jones

(111.), 9 N. E. Rep. 885, - 1079

International Contract Co., Re,

L. R. 6 Ch. 525. - - - 420

Iowa Seed Co. v. Dorr (Iowa),
30 N. W. Rep. 866, - 667, 669

Irby V. Graham, 46 Miss. 435, 454,
749, 825, 838

— ^ V. Vining, 2 McGord (S.
Ca.), L. 379, - 018, 621, 623, 624

Irish V. Snelson, 16 Ind. 365, 850

Irvin V. Conklin, 36 Barb. 64, 91

V. Nashville, Cliat. & St.

L. R'y Co. 92 111. 103 (34 Am.

Rep. 116), ~ - 57, 66, 134

Irvine v. Myei-a, 4 Minn. 229, 1067

V. Young, 1 Sim. & Stu.

333, 955

Irving, Re, 17 Bankr. Reg. 23, 349
Irwin V. Bid well, 73 Pa. St.

944, 16, 23, 45, 47, 48, 49, 88, 188
V. Williar, 11 Biss. 57 (re-
versed in 110 U. S. 490),, ^ - 319

V. Williar, 110 U. S. 499, 317,

318, 319, 373
Isaacs, Re, 3 Sawy. 35; 6

Bankr. Reg. 92, - - 503

Isler V. Baker, 6 Humph.

(Tenn.)85, - - 527,581,694
Ives V. Miller, 19 Barb. 196, 850, 853
Ivey V. Hammock, 68 Ga. 428, 278
Ivy V. Walker, 58 Miss. 353, 849, 893

Jacaud v. French, 13 East, 317,

171,
381
Jackman v. Partridge, 31 Vt.

558, . - - - 543

Jackson, Re, 1 B. & C. 270, - 110

, Ex parte, 1 Ves. Jr. 131, 511

, Ex parte, 3 M. D. & D.

146 (s. C. below as Ex parte

Whitmore, 3 M. & A. 637;

8Deac..365), .- - 512,516

— V. AlexaDder, 8 Tex. 109, 1023

v. Bohrman, 59 Wis. 422, 437.

1019

V. Clymer, 43 Pa. St. 79, - 1081

V. Cornell, 1 Sandf. Cb.

348, . - - . 566, 569

Jac]

TABLE OF CASES.

[Jen.

Jackson v. Crapp, 33 Ind. 423, 812,

813

V. Deese, 35 Ga. 84, 593, 974, 975

V. De Forest, 14 How. Pr.

81, 660, 1007

V. HoUoway, 14 B. Mon.

108, 383

V. Jackson, 1 Sm. & G.

184, - - - 347

V. Johnson, 11 Hun, 509, 781

V. Jones, 13 Ala. 131, - 1167

V. King, 8 Leigh, 689, - 749

V. King, 13 Gratt. 499, - , 750

V. Lahee, 114 111. 387, 1006

V. Litchfield, 8 Q. B. D.

474, 1063

V. Robinson, 3 Mason, 138, 70,

71, 1081
V. Salmon. 4 Wend. 337, - 508

V. Sedgwick, 1 Swanst.

460, - - - 86, 313

V. Stopherd, 3 Cr. & M.

361, - - - 893

V. Todd, 56 Ind. 406 (S. C.

as Todd v. Jackson, 75 id. 373), 3 1 6
Jackson lAs. Co. v. Partee, 9

Heisk. 396, - - - 834, 835
Jacobs, Ex parte, 10 Ch. App.

311, - - 533, 534

V. McBee, 3 McMuU. 348, 430

V. Seward, L. R. 5 H. L.

464, .... 274

Jacoby v. Whitmore, 33 "W. R.

18; 49 L. T. 335, - - 676
V. Whitmore, 33 W. R.

18; 46L. T. N. S. 740, - 676

Jacques V. Hulit, 16 N. J. L. 38, 858,
I 860

Jacquin v. Buisson, 11 How.

Pr. 385, - - - - 51, 994
Jaffray v. Frebain, 5 Esp. 47, 148
James v. Bostwick, Wright

(O.), 143, - - - . 431, 433
V. Brooke, 15 La. Ann.

541, .... 1167

V. Browne, 1 Call. 339, - 899

V, Dixon, 31 Mo. 538, - 734

James v. Pope, 19 N. Y. 324, - 615

V. Stratton, 33 111. 303, - 83

Jameson v. Franklin, 6 How.

(Miss.) 376, - - - 701, 1074
Janson, Ex parte, 3 Madd. 239;

Buck, 237, - - 833, 834

January v. Poyntz, 3 B. Mon.

404, .... 834'

Jaques v. Marquand, 6 Cow.

497; 8 Wend. 490, - - 481

Jardine v. Hope, 19 Grant's

Ch. (Up. Can.) 76, 770, 781, 783

Jarvis v. Brooks, 3 Foster (33

N. H.), 136. 824, 825, 847

- — V. Brooks, 27 N. H. 37 (59

Am. Dec. 359), 189, 381
V. Hyer, 4 Dev. L. (N. Ca.)

367, . - - - 750, 1106
Jauncey v. Knowles, 39 L. J.

Ch. 95, - - - 595, 805. 809
Jefferys v. Smith, 3 Euss. 158, 158,
160, 163, 243, 934
Jeffreys v. Coleman, 30 Fla.

536, - - - 416

Jeffries v. Castleman, 75 Ala.

363, - - - 700
V. Mut. L. Ins. Co. 110 U.

S. 305, - - 333, 707

V. Evans, 6 B. Mon. 119, 1081,

1084
Jell V. Douglass, 4 B. & A. 374, 746
Jemison v. Dearing, 41 Ala.

383, - - 361, 1068

V. Minor, 34 Ala. 33, 193, 333

V. Webb, 30 Ind. 167, - 880

Jenkins v. Davis, 54 Wis. 353, 1159

V. De Groot, 1 Cai. 122, - 747

— '■ — V. Howard, 31 La. Ann.

597, .... 378, 865

V. Morris, 16 M. & W. 879, 441

V. Peckinpaugh, 40 Ind.

133, - - - S03, 765

Jenness v. Carleton, 40 Mich.

343; 43 id. 110, 694, 737

V. Smith, 58 Mich. 280, 930, 931

.Jennings v. Baddeley, 3 K. &

J. 78, 593

Jen.]

TABLE OF CASES.

[JOH,

972
989

764,

Jennings v. Broughton, 17

Beav. 234 (afld. in 5 De G.

M. & G. 126), - - 595
V. Chandler, 10 Wis. 18

[81], 739, 741. 923, 1000, 1001, 1003

V. Estes, 16 Me. 323, - 1154

Jenny v. Perkins, 17 Mich. 28, 942
Jervis v. "White. 6 Ves. 738, -

V. White, 7 Ves. 413,

Jessup V, Carnegie, 12 J. & Sp.

260; ^ON. Y. 441,

V. Cooli, 6 N. J. L. 434, -

. 899,. 954, 985
Jestons V. Brooke, Cowp. 793, 16
Jewell V. Ketchum, 63 Wis.

628, - - - 635, 879
Jewett, In re, 1 Bankr. Reg. 49 1 , 832
, In re, 1 Bankr. Reg. 495

(7 Am. Law Reg. (N. S.) 294),
, Re, 7 Biss. 328 ; 15 Bankr.

Eeg. 126,

V. Bacon, 6 Mass. 60,

V. Meech, 101 Ind. 289, -

V, Phillips, 5 Allen, 150,

Johnes' Case. See Devaynes v.

Noble.
Johns V. Battin, 30 Pa. St. 457,
Johnson's Appeal (Pa. 1887), 8

Atl. Rep. 36,
Johnson, Re, 3 Lowell, C. C.

129, '

V. Ames, 6 Pick. 830,

V. Ames, 11 Pick. 178,

V. Barry, 95 111. 483,

836

95

1125

565

835

416

305

563, 833

154, 715

942

347, 508,

510, 515

V. Berlizheimer, 84 111. 54

(35 Am. Eep. 437), - 731

V. Bernheira, 76 N. Ca. 139

(S. C. as Johnston v. B. 86 id.

339), - 333, 325, 1069

— V. Boone, 2 Harr. (Del.)

173, - - - . - 495

V. Buttler, 31 N. J. Eq. 35, 988

V. Clark, 18 Kan. 157, - 385

— T. Coffee, 1 Ashmead, 96, 643
V. Curtis, 3 Bro. C. C. 311, •

note, 963

Johnson v. Evans, 7 M. & G.

340, - - 1105.

V. G^Iivan, 53 N. H. 143, - 1151

V. Garrett, 23 Minn, 565, 983,

986
V. Green, 4 Porter (Ala.),

126, - - 1094

V. Hartshorne, 52 N. Y.

173, 709, 711, 783, 786, 789
V. Hellely, 34 Beav. 63; 3

DeG. J. & S. 446 (afE. 10 Jur.

N. S. 1141 ; 34 L. J. Ch. 33), 664,
665, 974
V. Hersey, 70 Me. 74 (35

Am. Eep. 303); 8 Am. Law

Rec. 720 (73 Me. 391), - 1045

V. Hersey, •73 Me. 391, - 410

V. Kaiser, 40 N. J. L. 286, 723

V. Kelly, 3 Hun, 139; 4

Thomp. & C. 417, - 813, 849

V. King, 6 Humph.

(Tenn.)238, - - - 1103

V. Mantz, 69 Iowa, 710, 971, 974

V. Marsh, 2 La. Ann. 773, 695

v. Miller, 16 Oh. 431, 43, 43, 45

V. Peck, 3 Stark. 69, 372, 1035

V. Rogers, 15 Bankr. Reg.

1 ; 5 Am. Law Rec. 536, 184, 186,

391

V. Short, 2 La. Ann. 277, 894

V. Straus, 4 Hughes, 621

(S. C. as Johnston v. Straus,
26 Fed. Eep. 57). See John-
ston V. Straus.

V. Totten, 3 Cal. 343 (58

Am. Deo. 412), - - - 707

V. Wilcox, 25 Ind. 182, 709, 711

V. Wilson, 54 111. 419, 850, 855,

888

V. Young, 30 W. Va. 614, 533,

534
Johnston v. Bernheim,, 86 N.
Ca. 339 (s. 0. as Johnson v.
B. 76 id! 139), - 323, 825

V. Clements, 35 Kan. 376, 1151

V. Crichton, 56 Md. 108, 411,

430, 1038, 1046

JOH.]

TABLE OF OASES.

[Joe.

Johnston v. Button, 37 Ala.

24J(, - 335, 338, 344, 374, 431,
433, 577, 619
V. Eiohelberger, 13 Fla.

230, - - - . 83

V. Freer, 51 Ga. 97, - - 959

V. Freer, 51 Ga. 313, - 930

V. Straus, 36 Fed. Rep. 57

(S, C. as Johnson v. Straus, 4

Hughes, 631), - 562, 368, 929

V. Warden, 3 Watts, 101, 156,

1143, 1151, 1154
Jones' Appeal, 70 Fa. St. 169, 190,

251, 389
Jones V. Anderson, 7 Leigh

(Va.), 308, - - 1131

V. Bailey, 5 Cal. 345, - 336

V. Bartlett, 50 Wis. 589, 510, 513

V. Benedict, 83 N. Y. 79, 496

V. Blair, 57 Ala. 457, 1079, 1080

V. Bliss, 45 111. 143, - - 639

V. Booth, 10 Yt. 368, 349, 365,

430
V. Butler, 87 N. Y. 613

(a£f. 23 Hun, 3 J7), - 814

V. Call, 93 N. Ca. 170, 36, 1135

V. Caperton, 15 La. Ann,

475, - 457

V. Olark, 43 Oal. 180, 339, 374,

439, 580, 931
V. Dexter, 130 Mass. 380

(89 Am. Eep. 459), - - 304, 309

V. Fegely, 4 Phila. 1, 153, 443

V. Fletcher, 43 Ark. 423, 550,

570, 907, 11,03, 1115

V. Foster, 67 Wis. 296, - 709

V. Foxall, 15 Beav. 888, 485

V. Hardesty, 10 Gill & J.

(Md.) 404 (33 Am. Dec. 180),

V. Heavens, 4 Oh. D. 636,

V. Herbert, 7 Taunt. 431,

V. Howard, 53 Miss. 707,

746
677
383
57,

1033
347

1081

■ V. Hurst, 67 Mo. 568,
V. Jones, 13 Ala. 244,
V. Jones, 38 Ark. 313, 917, 918,

930

Jones V. Jones, 1 Ired. (N. Ca.)
Eq. 333, - - 181, 785, 968

V. Jones, 9 Lea (Tenn.),

627, 290

V. Lloyd, L. E. 18 Eq. 365, 574,

581

V. Lusk, 3 Met. (Ky.) 356, 561,

565, 568, 834, 939, 1120

V. McMichael, 13 Rich. (S.

Oa.) L. 176, - 33, 58, 61, 308, 580

V. Mars, 3 Camp.' 305, - 1068

V. Maund, 8 Y. & C. 347, 500

V. Morehead, 3 B." Men.

877, • -^ 795, 878, 986

V. Neale, 2 Patt. & H.

(Va.) 839, 188, 184, 291, 396, 541

V. Newsom, 7 Biss. 331, - 754

V. Noy, 2 Myl. & K. 135, 581

V. O'Farrel, 1 Nev. 354, 331, 333

V. Parker, 30 N. H. 31, 107, 134,

196

V. Parsons, 35 Cal. 100, 184, 186,

1139

V. Perchard, 3 Esp. 507, - 111

V. Rives, 3 Ala. 11, - 861

V. Scott, 3 Ala. 58, - 158, 162

V. Shaw, 67 Mo. 667, 850, 880,

881

V. Shears, 4 Ad. & El. 833, 174

V. State, 76 Ala. 8, - 377

V. Stevens, 5 Met. 373, - 1151

V. Thompson, 13 Cal. 191,' . 977,

1109, 1111

V. Thorn, 3 Mart. (La.) N.

S. 463, - - - 731

V. Walker, 103 U. S. 444, 55,

598, 600

V. Yates, 9 B. & 0. 582, '- 1087,

1088, 1044
Jordan, In re, 2 Fed. Eep. 319, 483,

484, 841

V. Miller, 75 Va. 443, 208, 320,

403, 949, 973

V. Smith, 17 Up. Can. Q.

B. 590, ■ - - 100, 633, 638

V. Wilkins, 3 Wash. C. C.

. 110, - . - 56, 66, 1073

Jos.]

TABLE OF CASES.

[Keu

Joseph V. Fisher, 4 HI. 137, - 1155,

1158
Jowers V. Baker, 57 Ga. 81f - 876
Joy V. Allen, 2 Woodb. & M.

303, - ... 59

Joyce V. Williams, 14 Wend.

141 (explained in Stall v.

Catskill Bank, 18 Wend.

406), - - 349, 358

Judd V. Wilson, 6 Vt. 185, 859, 860
Judd Linseed & Sperm Oil Co.

V. Hubbell, 76 N. T. 543, - 457,

1096
Judge V. Braswell, 13 Bush, 67

(36 Am. Rep. 185), 339, 341, 345
Judson V. Adams, 8 Cush.

556, ... - 39, 43

Julian V. Wrightman, 73 Mo.

569, 1131

Jdlio V, Ingalls, 1 Allen, 41, 33, 358

Kahl V. Sneed, 59 Pa. St. 388, 378
Kahley, In re, 3 Biss. 383, - 565
Kahn v. Boltz, 39 Ala. 66, 978
V. Central Smelting Co.

103 U. S. 641, - 163; 585

Kaiser v. Fendriok, 98 Pa. St.

538, - - 349, 369, 1151
V. Lawrence Sav. B'k, 56

Iowa, 104, .... 5
V. Wilhelm, 3 Mo. App.

596, ... .770

Kale V. Elliott, 18 Hun, 198, - 1170

Kamm v. Barker, 3 Oreg. 308, 454,

456, 1019, 1056

Karthaus v. Ferrer, 1 Pet. 333, 336

; Kaskaskia Bridge Co. v. Shan-

i non, 6 HI. 15, 154, 331, 333, 1145,

1151
Kasson v. Brocker^ 47 Wis.

79, - ... 1121

Kauflman v. Fisher, 3 Grant's

Cas. (Pa.) 303, - - 538, 703
Kaufman v. SchoefiEel, 37

Hun, 140, .... 139

73

474

538

Kayser v. Maugham, 8 Col. 333

(S. C. id. 339), - - 305

V. Maugham, 8 Col. 339, 305,

545, 790
Keasley v. Codd, 3 C. & P.

408, n.,

Keating v, Marsh, 1 Mont. &

A. 583 (aff. on app. Marsh v.

Keating, 1 Bing. N. C. 198;

3 01. & Fin. 350), -
V. Sherlock, 1 Cint. Supe-
rior Ct. Eep. 357, -
Keaton v. Mayo, 71 Ga. 649, 810, 813
Keck V. Fisher, 58 Mo. 533, 399, 403,

406
Kedie, Ex parte, 2 Deac. & C.

331, ... - 513

Keegan v. Cox, 116 Mass. 289, 145,

275, 406
Keeler v. Niagara F. Ins. Co.

16 Wis. 523, - - - - 373
Keeney v. Home Ins. Co. 71 N.

Y. 396 (37 Am. Rep. 60), - 1003
Keerl v. Bridgers, 10 Sm. &

Mar. (Miss.) 613, - 454, 533, 524
Keese v. Coleman, 73 Ga. 658, 835
Keiser v. State, 58 Ind. 379, 43, 45,

46
Keith V. Armstrong, 65 Wis.

335, - - 566,1118

V. Fink, 47 111. 373, - - 566

V. Keith, 143 Mass. 36!3, - 394

Kell V. Nainby, 10 B. & C. 20, 1033
Keller v. Stolzenbach, 30 Fed.

Eep. 47, . -

V. Tracy, 11 Iowa, 530,

Kelley v. Greenleaf, 3 Story,

93, .... 545, 790

V. Hurlburt, 5 Cow. 534, 150,

608
Kellogg V. Fox, 45 Vt. 348, 374, 554

V. Griswold, 13 Vt. 391, 37, 39.

43

V. Moore, 97 111. 283, - 887

V. Totten, 16 Abb. Pr. 35, 66iJ

Kellogg Newspaper Co. v. Far-

rell, 88 Mo. 594, - . - 33, 45

266
1028

Kel.]

Kelly V. Baker, 2 Hilt." 531,
, V. Clanoey, 16 Mo. App.

549, - - - 263

V. Crawford, 5 WaU. 788, 698

V. Devlin, 15 Jones & Sp.

555 (58 How. Pr. 487), - 114, 1136

V. Eckford, 5 Paige, 548, 978

V. Gaines, 34 Mo. App.

506, - - - - 33, 40, 61
V. Hutton, L. R. 3 Ch.

App. 703, - . - - 937
V. Hutton, L. R. 9 Ch.

App. 690, - - 185
V. Murphy (Cal.), 13 Pac.

Rep. 467, 378

V. Scott, 49 N. Y. 595, - 105

V. Scotto, 49 L. J. Ch. 383 ;

43 L. T. N. S. 837, - - 33, 47

Kelsey v. Hobby, 16 Pet. 369, 553
Kelton V. Leonard, 54 Vt. 330, 819,'

333
Kemble v. Farren, 6 Bing.

141, - - - 350

V. Kean, 6 Sim. 333, - 306

V. Mills, 9 Dowl. 446, - 890

Kemeys v. Richards, 11 Barb.

313, - - - - - 430
Kemp V. Andrews, Carth. 170 ;

3 Lev. 390; 1 Show. 188, 189, 733

' V. Carnley, 3 Duer, 1, - 840

V. Cook, 18 Md. 180, 143, 145

V. Doggett, 3 Gr. Greene,

190, - - - 695

Kempner, In re, L. R. 8'Eq.

386, - - - - 564

Kendal v. Wood, L. R. 6 Ex.

343, - 383, 1046, 1048

Kendall, Ex parte, 17 Ves. 514, 747,

843

V. Carland, 5 Cush. 74, - 1073

V. Hamiltbn, 4 App. Cas.

504 (S. C. below, 3 C. P. D.

403), - - - 454, 535, 748

V. Rider, 35 Barb. 100, 383, 844

V. Riley, 45 Tex. 30, - 693

■ Kendrick v. Campbell, 1 Bai-
ley (S. Ca.), 583, - - - 701

TABLE OP CASES,
- 388

[Kee.

Kendrick v. O'Neil, 48 Ga. 631, 385

V. Tarbell, 37 Vt. 513, 188, 453,

453a, 631, 853, 881
Kenedy V. Cunningham,

Cheves (S. Ca.), 50, - • - 1081
Kennard v. Adams, 11 B. Mon.

103, 894

Kennebec Co. v. Augusta

Banking Co. 6 Gray, 304, - 333
Kennedy, Ex parte, 3 De G. M.

& G. 338, - - 833
V. Bohannon, 11 B. Mon.

118, 153, 156, 445, 608, 613, 618

V. Kennedy, 3 Dana, 389, 338,

315, 591, 594, 988, 994

V. Lee, 8 Mer. 453, - 664

V. McFadon, 3 Har. & J.

194, - - - - 853

^-v. Shilton, 1 Hilt. 546; 9

Abb. Pr. 157, n., - - - 964
Kenney v. Altvater, 77 Pa. St.

34, - - 874, 375, 607, 615, 707
Kenney's Patent Button Hole-

ing Co. V. Somervell, 33 L. T.

N. S. 878; 36W.R. 786, 358

Kenniston v. Avery, 16 N. H.

117, .... - 705

Kensington, Ex parte, 14 Ves.

447, - - 833,834

Kent V, Chapman, 18 W. Va.

485, S38, 963

V. HoUiday, 17 Md. 887, 1049,

1050
V. Jackson, 3 DeG. M. &

G. 46, - - - 958

— — V. Mojonier, 86 La. Ann.

259, ..--.- 198

V. Wells, 31 Ark. 411, - 456,

1051, 1068
Kenton Furnace & Mfg. Co. v.

McAlpin, 5 Fed. Rep. 737, 361, 736
Kenworthy v. Sawyer, 135

Mass. 38, 39, - - 141

Kepler v. Erie Dime Sav. &

Loan Co. 101 Pa. St. 603, - 389
Kerr v. Bradford, 36 Up. Can.

C. P. 318, - - - - 553

cvu

Ker.]

TABLE OF CASES.

[Kin.

Kerr v. Kingsbury, 39 Mich.

150, - . . . 283, 295

V. Potter, 6 GiU, 404, 17, 43,

103, 104, 105
Kerrick'v. Stevens, 55 Mich.

167, - .... 81, 83

Kerrigan v. Kelly, 17 Mo. 275, 870
Kershaw v. Matthews, 2 Russ.

62, - ... 349

Ketcham v. Clark, 6 Johns.

144, - - 611, 618, 631

Ketchum, In re, 1 Fed. Eep.

815, ... 480, 483

V. Durkee, Hofifm. Ch.

(N. Y.) 538, - - 446, 532

V. Ketchum, 1 Abb. Pr.

.(N. S.) 157, - - 894

Kettelle v. Wardell, 3 111. 593, 627,

1073
Kickman v. Kunkle, 37 Mo.

401, - - 343

Kidd Y. Brown, 3 How. Pr. 30, 1086
Kidder/v. Mcllhenny, 81 N. Ca. »

123, - - - 880

V. Packard, 13 Mass. 80, - 1127

V. Page, 48 N. H. 380, 849, 566

Kilby V. Wilson, Ey. & Moo.

178, - - - - 480

Kilgour V. Finlyson, 1 H. Bl.

155, - - - 693, 694, 695
Eallam v. Preston, 4 Watts &

S. 14, - - - - 858, 860
Killock V. Greg, 4 Russ. 285, 923

Kilshaw v. Jukes, 3 Best & Sm.

847, . - 18, 20, 29, 39, 61
Kimball v. Gearhart, 12 Cal. 27, 241
V. Hamilton F. Ins. Co.

8 Bosw. 49S, - - ' - - 405
V. Lincoln, 5 Bl. App. 816

(reversed, 7 id. 470, and 99

111. 578), - - - 773, 774

V. Lincoln, 99 lU, 578

, (affg. s. c. 7 111. App. 470,

which reversed 5 111. App.

816), - - 743, 772, 774, 976

V. Thompson, 13 Met. 383, 190,

560

Kimball v. Walker, 30 111. 483, 629
Kimberly's Appeal (Pa.), 7 Atl.

Eep. 75, ... 527

Kimble v. Seal, 92 Ind. 276, - 937
Kimbro v. Bullitt, 23 How.

356, 322, 327, 328, 329, 841, 348,

1049
Kimmel v. Shultz, Breese (111.),

128, - ... 1094

Kimmins v. Wilson, 8 W. Va.

584, ... 3, 73, 595

Kinder v. Taylor, Gow on

Part. 110, - - - 1011

King, Ex parte, 17 Ves. 115, 845,

846

V, Barber, 61 Iowa, 674, 646

V. Barbour, 70 Ind. 85, - 146,

611, 1151, 1154

V. Bell, 18 Neb. 409, - 1055,

1068

V. Chuck, 17 Beav. 825, - 217

V. Courson, 57 Ga. 11, - 629

V. Faber, 23 Pa. St. 21, - 347

V. Ham, 4 Mo. 275, - 1154

V. Hamilton, 16 111. 190, - 259,

262, 544, 766

V, Hoare, 18 M. & W. 495, 537

— - V. Leighton, 100 N. Y. 386

(rev. 32 Hun, 419), - 583, 795

V. Smith, 4 C. & P. 108, 381,

' 681, 684
V. Wartelle, 14 La. Ann.

740, - - - 943, 976

V. Weeks, 70 N. Ca. 873, - 284,

385, 393

V. Wilcomb, 7 Barb. 363, 283

V. Winants,' 71 N. Ca. 469, 113,

119, 137
Kingman v. Spurr, 7 Pick. 235, 72,

74, 1113
Kingsland v. Braisted, 3 Lans.

17, - - - - . 905

Kingsley v. Hubbard, 89 Cal.

655, 1131

Kinkead, In re, 3 Biss. 405 ; 7

Bankr. Reg. 439 (U. S. D. C.

lU.), 139

Kin.]

TABLE OF CASES.

[Kno.

Kinloch v. Hamlin, 3 Hill (S.
Ca.), Ch< 19 (37 Am. Dec. 441), 577,
678, 855, 889
Kinney v. , McOullough, 1
Sandf. Ch. 370, - - - 533

V. Eobison, 53 Mich. 389, 855,

874

Kinsler v. McCants, 4 Rich. (S.

Ca.) L: 46 (53 Am. Dec. 711), 685,

713, 733, 734

Kinsman v. Barker, 14' Ves.

579, 963

V. Castleman, 1 Mon.

(Ky.)310, - - - 301

V. -Dallam, 5 Mon. (Ky.)

883, - - - - 303
V. Parkhurst, 18 How.

389, .... 116,305

Kintrea v. Charles, 13 Grant's

eh. (Up. Can.) 117, - 309, 633
KiouB V. Day, 94 Ind. 500, - 884
Kipling V. Turner, 5 B. &

Aid. 361, 651

Kipp V. McChesney, 66 111. 460, 531
Kirby v. Cannon, 9 Ind! 371, 148,

« 1094

V. Carpenter, 7 Barb. 373, 835

T. Carr, 3 Younge & Coll.

Ex. 184, - , . - 581

V. Coggswell, 1 Cai. 505, 543,

1017
V. Hewitt, 36 Barb. 607, - 199

V. IngersoU, 1 Doug.

■ (Mich.) 477 (aflE. s. C. Harr.

Ch.. 173), - - 338, 403
V. Lake Shore & M. S. R.

R. 8 Fed. Rep. 463; S. C. 14

id. 361, .... 717, 733
V. Taylor, 6 Johns. Ch.

243, - - - - 386
V. Schoonmater, 3 Barb.

Ch. 46, - - - - 566, 569
Kirk V. Blurton, 9 M. & W.

884; 13 L. J. Ex. 117, - 193, 199,
301, 203

V. Hartman, 63 Pa. St, 97, 91

V. Hiatt, 3 Ind. 333, 681, 701, 704

Kirk V. Hodgson, 3 Johns. Ch.

400, - 433, 483

Kirkman v. Booth, 11 Beav.

273, - - - 599, 600, 739
Kirkpatrick v. McElroy, 41 N.

J. Eq. 539, - - 1006
V. Turnbull, Addison (Pa.),

359, - 411

Kirwan v. Kirwan, 8 Cr. &

M. 617; 4 Tyr. 491, 530, 531, 533
Kistner v. Sindlinger, 33 . Ind.

114, - - ' 184, 186, 834

Kitchen v. Lee, 11 Paige, 107, 144,

553

V. Eeinsky, 43 Mo. 437, - 566

Kitchin v. Wilson, 4 C. B. N.

S. 483, 1085

Kitner v. Whitlock, 88 111. 513, 191,
300, 444, 978, 979
Klase V. Bright, 71 Pa. St. 186, 639,
630, 850, 958
KUin V. Keyes, 17 Mo. 336, 347

Kleinhaus v. Generous, 35 Oh.

St. 667, - - - 370

Klock V. Beekman, 18 Hun,

503, - 701, 1153

Klotz V. Macready (La.), 3 So.

Rep. 203, - • - 741

Knapp V. Edwards, 57 Wis.

191, 816, 970, 984, 987

V. Levanway, 27 Vt. 398, 345,

1125

V. McBride, 7 Ala. 19, - .353,

361, 691
Knauth v. Bassett, 34 Barb.

31, - ... 566

Knebell j. White, 2 Y. & C.

Ex. 15, - - - - - 910
Kneib v. Graves, 73 Pa. St.

104, - ... 877

Knerr v. Hoffman, 65 Pa. St.

136, - 858, 860, 865, 938, 1106
Knight, Re, 3 Biss. 518; 8

Bankr. Reg. 436, - - - 833

V. Ogden, 2 Tenn. Ch. 473, 258,

1105, 1110, 1111
Knode v. Baldridge, 73 Ind. 54, 1006

cix

Kno.]

TABLE OF CASES.

[Lae.

Knott V. Knott, 6 Oregon, 142, 189,
140, 181, 301, 302, 987, 986

V. Stephens, 3 Or. 269, - 731

Knowles v. Haughton, 11 Ves.

168 (more fully rep. in Coll-

yer, Partnership, 198), - - 913
Knowlton V. Eeed, 38 Me. 246, 59, 70
Knox V. Bufflngton, 50 Iowa,

320, - - . - 333, 835

V. Gye, L. E. 5 H. L. 656, 718,

719, 943, 945, 948, 949
V. Schepler, 2 HUl (S. Ca.),

L. 595, - - 719, 1104

Kcehler v. Brown, 31 How. Pr.

235, .... 858

Kohler v. Mattlage, 43 N. Y.

Superior Ct. 247, - 636

Koningsburg v. Launitz, 1 E.

D. Smith, 315, - - 541, 893
Kottwitz V. Alexander, 34 Tex.

689, - - - 598, 603, 714
Kountz V. Holthouse, 85 Pa.

St. 333, - - - 503, 504, 510
Krafts V. Creighton, 3 Rich. L,

373, .... 438, 451
Kramers v. Arthur, 7 Barr,

165, - - - 186, 1103

Kreis v. Gorton, 23 Oh. St.

468, ... 53, 543, 736
Kvitzer v. Sweet, 57 Mich. 617, 96
Krouskop V. Shontz, 51 Wis.

204, 217, - ... 140

Krueger, Re, 3 Low. 66; 5 ,

Bankr. Reg. 439, - 100, 628

Krutz V. Craig, 53 Ind. 561, - 738,

849
Kuehnemundt v. Haar, 58

How. Pr. 464, - - 988

Kuhu V. Abat, 2 Martin (La.),

N. S. 168, - - 655

V. Newman, 49 Iowa, 434, 28,

274, 375

V. Weil, 73 Mo. 313, - 465

Kuhne v. Law, 14 Rich. L. 18, 835,

847
Kull V. Thompson, 88 Mich.

685, .... 401, 1040

Kutcher v. Williams, 40 N. J.

Eq. 436, - - - - 136, 138
Kyle V. Roberts, 6 Leigh (Va.),

495, .... 296,417

L.

Labouohere v. Dawson, L, R.

18 Eq. 333, - - - 664, 666
V. Tupper, 11 Moo. P. C.

198, ... 51

Lacey v. Hill, 4Ch. D. 587 (aff.

s. C. as Read v. Bailey, L. R.

3App. Caa. 94), - - 395,839
V. Hill, L. E. 8 Ch. App.

441, - - - - - 846
Lacoate v. Bexar , County, 38

Tex. 420, - - - 700

Lacy V. Kynaston, 3 Salk. 575 ;

1 Ld. Eaym. 688, ... 385

V. Le Bruce, 6 Ala. 904, - 903

V. McNeile, 4 Dow. & Ry.

7, - '- - - 384
V. Woolcott, 3 Dow. & Ry.

458, ... - 638, 750
Ladd V. Griswold, 9 111. 35 (46

Am. Dec. 443), - 551, 883

Ladiga Saw Mill Co. v. Smith,

78 Ala. 108, - - 1063, 1086, 1093
Ladue v. Hart, 4 Wend. 583, - 1079
Lallan v. Naglee, 9 Cal. 663, 36, 305
Lafonv. Chinn, 6 B. Mon. 305, 446
Lafond v. Deems, 81 N. Y.

507 (52 How. Pr. 41 ; 1 Abb!

N. Cas. 818), - 75, 593, '594

Lagan v. Cragin, 27 La. Ann.

353, 446

Lahey v. Kingon, 13 Abb. Pr.

193 ; S. 0. as Leahy v. King-
on, 22 How. Pr. 209, . 880, 1086
Laing v. Campbell, 36 Beav. 3, 958
Laird v. Chisholm, 30 Scottish

Jurist, 583, - - - 485

V. Ivens, 45 Tex. 621, - 631

V. Umberger, 1 Phila. 518, 1049

Lake v. Craddock, 3 P. Wms.

158; 1 Eq. Caa. Abr. 390, - 186

Lak.]

TABLE OF CASES.

[Lat.

Lake v. Duke of Argyll, 6 Q. B.
477. 98

V. Munford, 4 Sm. & Mar. i

313, - . - . 187,507
Laler v. Jordan, 44 Miss. 383, - 861
Lallande v. MoEae, 16 La.

Ann. 193, - - - - 446
Lamalere y. Gaze, 1 Wash. C.

C. 485, - - 484, 849, 858, 860
Lamar v. Hale, 79 Va. 147, 163, 311
Lamb v. Brolaski, 38 Mo. 51, 1083;

1083
V. Durant,! 13 Mass. 54 (7

Am. Dec. 31), 70, 401, 403, 405

V. Grover, 47 Barb. 317, - 48

V. Saltus, 3 Brev. (S. Ca.)

L. 130, 883

V. Singleton, 3 Brev. (S.

Ca.)490, - - - - 607
Lambden v. Sharp, 9 Humph.

324 (34 Am Dec. 643), - 416, 419
Lambert's Case, Godbolt, 344, 403,

437
Lambert v. Converse, 33 How.

Pr. 365, 377

V. Grifl&th, 44 Mich. 65, - 963,

978, 979

V. Griffith, 50 Mich. 386, - 639

Lamkin v. Phillips, 9 Porter,

(Ala.), 98, - - 543, 559, 560
Lament y. FuUam, 133 Mass.

583, 60

Lamphire y. Cowan, 39 Vt.

420, - - - - - 334
Lampton v. Nichols, 1 Cint.

Superior Ct. Eep. 166, - - 936
Lancaster Bank v. My ley, 13

Pa. St. 544, - - - 186. 1103
Lane, Ee, 3 Low. 338'; 10 Bankr.

Eeg. 135, - 566, 886, 887, 838
— — V. Arnold, 18 Abb. New

pas. 73, 198

V. Jones, 9 Lea (Tenn.),

637, - - - - 820,833
V. Eoche, Riley (S. Ca.),

Ch. 215, - - - - 770, 870

V. Tyler, 49 Me. 353, - 383

H

981

694
676

Lane v. Thomas, 37 Tex. 157, 119,

131
V, Williams, 3 Vernon,

393, - - - - 370, 747, 750
Lanford v. Patton, 44 Pa. 584, 1066
Lang V. Keppele, 1 Bin. (Pa.)

133, ... - 747, 750

V. Oppenheim, 96 Ind. 47, 849

V. Waring, 17 Ala. 145 (35

id. 625), - - - 391, 849, 737
V. Waring, 25 Ala.- 625 (60

Am. Dec. 533), > - 291, 294, 976
Langan v. Hewett, 13 Sm. &

Mar. (Miss.) 122, - 323, 849, 351
Langdale, Ex parte, 18 Ves.

300, ..... 16

V. Langdale, 13 Yes. 167, 883

Langdon v. Hughes, 107 Mass.

372.

Lange v. Kennedy, 20 Wis.

279; - -

V. Werk, 3 Oh. St. 519, -

Langmead's Trusts, 7 DeG. M

& G. 353, - 551, 553, 554

Lanier v. McCabe, 8 Fla. 33

(48 Am. Dec. 173), 328, 343, 884

V. Macon, 59 Ga. 187, 1 - 175

Lannan v. Clavin, 3 Kan. 17, 968, 974
Lansing v. Gaine, 3 Johns. 800

(8 Am. Dec. 423), - 618, 636, 691
Lape V. Parvin, 3 Disney, 560, 70
Lapham v. Green, 9 Vt. 407,. 1032,

1083
Larkins v. Rhodes, 5NPorteri

(Ala.), 195, - - - - - 801
Lasell V. Tucker, 5 ' Sneed ■

(Tenn.), 33, - 338, 840, 403, 418
Lassiter v. Jackman, 88 Ind.

118, ..... 854
Laswell v. Eobbina, 39 111. 309, 359,
363, 765, 970, 983, 984
Latham v. Kenniston, 13 N. H.

303, - - 759, 1160, 1168, 1169
V. Simmons, 3 Jonte (N.

Ca.), L. 37, - 1105, 1111, 1112
V. Skinner, Phil. (N. Ca.)

Eq. 292, .... 651

cxi

Lat.]

TABLE OF CASES.

[Lee.

Lathrop v. Atwood, 21 Conn.

117, - - 636, 637, 639, 879

V. Brown, 33 Iowa, 40, - 1064

V. Knapp, 37 Wis. 307, 876, 973

V. Snell, 6 Fla. 750, - - 195

Lauferty v. Wheeler, 11 Daly,

194, 198

Lauflferv.Cavett, 87Pa.St.479, 291.
Laugher v. Pointer, 5 B. & C.

547, 570,' .... 463
Laughlin v. Lorenz, 48 Pa. St.

275, .... 600, 601

Laurens v. Hawkins, 1 Desaus.

144,

Laverty v. Burr, 1 Wend. 539,

Law, Ex parl^, 3 Deac. 541,

V. Cross, 1 Black, 533,

V. Ford, 2 Paige, 310,

740

349,

363

- 155,

445

. 446

993, 998,

1003

. 926

211, 245

19, 416

V. Law, 3 Coll. 41, -

Lawes v. Lawes, 9 Ch. D.
Lawrence, Re, 5 Fed. Rep,

V. Clark, 9 Dana (Ky.), 357

(35 Am. Dec. 133), - 852, 865
V. Dale, 3 Johns. Ch. 33, 317

V. Robinson, 4 Colorado,

567, 571

V. Rokes, 61 Me. 38, - 951, 953

V. Taylor, 5 Hill, 107, 293, 399,

424

V. Trustees of Leake &

Watts Orphan House, 2 Den.

577 (aff. 11 Paige, 80), 737, 750,
— ^ V. Vilas, 20 Wis. 381, 543, 728
Lawson v. Bank of London, 18

C. B. 84, ....

V. Glass, 6 Colorado, 134,

Laylin v. Knox, 41 Mich. 40,

674
875
531,
•533
979

Layton v. Hall, 25 Tex. 404, -
V. Hastings, 2 Harr. (Del.)

147, 421

Lea V. Guice, 13 Sm. & Mar.

(Miss.) 656, 156, 157, 191, 332, 1151,

1153

Leabo v. Goode, 67 Mo. 126, - 537

V. Benshaw, 61 Mo. 293, 850

Leach v. Church, 15 Oh. St.

169, 539

V. Cook, 10 Vt. 239, - - 1117

V. Kagy, 15 Oh. St. 169, - 527

V. Leach, 18 Pick. 68, 229, 305,

814, 975
V. Milburn Wagon Co. 14

Neb. 106, - 173, 842, 1059, 1066
Leaf's Appeal, 105 Pa. St. 505, 297,

298
Leaf V. Coles, 1 De G. M. & G.

171, 581

Leahey v. Kingon, 22 How.

Pr. 209 (s. C. as Lahey v.

Kingon, 13 Abb. Pr. 192), 380, 1086
Leake & Watts Orphan House,

Trustees of, v. Lawrence, 11

Paige, 81 (affd. in L. v.

Trustees, 2 Den. 577), - - 737
Learned v. Ayers, 41 Mich.

677, 849

Leary v. Shout, 33 Beav. 582, 594
JLeavitt v. Comer, 5 Cush.

129, . - - 53-t

V. Goooh, 13 Tex. 95, 943, 943

V. Peck, 3 Conn. 134 (8

Am. Dec. 157), ... 325
Ledden v. Colby, 14 N. H. 33

(40 Am. Dec. 178), - 733, 734
Lee V. Abrams, 12 111. Ill, . 899

V. Davis, 70 Ind. 4G4, - 777

V. Dolan, 39 N. J. Eq. 193, 767

V. Fontaine, 10 Ala. 755

(44 Am. Deo. 505), 495, 503, 634,

647
V. Haleyi L. R. 5 Ch. App.

161,

V. Hamilton, 13 Tex. 413,

674
383,
1067
1142

V. Hardgrave, 3 Mich. 77,

V. Lashbrooke, 8 Dana

(Ky.), 314, 181, 764, 770, 777,
781, 785, 798
V. Macdonald, 6 Up. Can.

Q. B. (old series) 130, 319, 437, 1154

Lee.]

TABLE OF CASEa

[Lev.

Lee V. Onstott, 1 Ark. 306, 416, 419
V. Page, 7 Jur. N. S. 768;

30 L. J. N. S. Ch. 857, 233, 806,

987

V. Slowe, 57 Tex. 444, 693, 707

V. Templeton, 6 Gray, 579, 177

V. Wilkios, 65 Tex. 295, 1105,

1108
Leeds Banking Co., In re, L. E.

1 Ch. App. 231, - - . 51
Lees V. Laf orest, 14 Beav. 250, 304
Leese v. Martin, L. E. 13 Eq.

77, 1085

Le Fann v. Malcomson, 1 H. L,

0. 637; 8 Irish L. E. 418, - 1031
Lefever v. Underwood, 41 Pa.

St. 505, .... 763

Lefevre's Appeal, 69 Pa. St.

132 (8 Am. Rep. 229), - 285, 289
Lefevre v. Boyle, 3 B. & Ad.

877, .... 1030

Lsffler V. Rice, 44 Ind. 103, - • 370
Leftwich v. Clinton, 4 Lans.

176, 127

Leftwitch v. Leftwitch, 6 La.

Ann. 346, .... 983
Leggett V. Hyde, 58 N. Y. 273

(17 Am. Eep. 244), (aflg. i N.

T. Supreme Ct. 418), 23, 47, 50
Leggott V. Barrett, 15 Ch.'D.

308, .... 664, 666
Legh V. Legh, 1 B. & P. 447, 383
Leicestershire Banking Co., Ex

parte, De Gex, 292, - - 842
Leiden v. Lawrence, 2 New

Eep. 283, - - 63, 376, 408
Leidy v. Messinger, 71 Pa. St.

177, .... 852, 865

Leighton v. Hosmer, 39 Iowa,

594, 780

Leinkauflf v. Munter, 76 Ala.

194, 1130

Leinsinring v. Black, 5 Watts,

303, .... 283, 284
Leland, Ee, 5 Ben. 168; 5

Bankr. Eeg. 232, - - . 835, 833
V. Newton, 103 Mass. 350, 742

Le Levre t. Castagnio, 6 Col-
orado, 564, - - - - 33, 47
Lemmon v. , Hutcbins, 1 Ohio

Cir. Ct. 388, - 293, 417

Lemon v. Fox, 21 Kan. 162, 348,

411, 439
Lemons v. State, 50 Ala. 130, 178,

- 483
Lengle V. Smith, 48 Mo. 376, - 35
Lenow v. Fones, 48 Ark. 557, 297,

298
Leonard v. Leonard, 1 W. &

S. 343, 964

V. New Tork Tel. Co. 41

N. T. 544, - - . ,- - 43

V. Eobbins, 13 Allen, .317, 893

V. Wilde, 36 Me. 365, - 698

V. Winslow, 3 Grant's Cas.

Pa. 139, - - - - 1038
Le Page v. McCrea, 1 Wend.

164 (19 Ana. Deo. 469), - 385, 537,

531
Le Eoy v. Johnson, 2 Pet. 186, 191,

198, 361, 439, 444, 446, 451, 608, 626
Leslie v. Wiley, 47 N. Y. 648, 151,

1052
Lessing v. Sulzbacher, 35 Mo.

445, .... 191

Lester v. Abbott, 28 How. Pr.

488 (S. C. as Lester v. Pollock,

3 Eobt. 691, which see).
V. Pollock, 3 Eobt. (N. Y.)

691 (S. C. as Lester v. Abbott,

28 How. Pr. 488), 556, 566, 567

Lesure v. Norris, 11 Cush. 328, 585,

629
Levally v. Ellis, 13 Iowa, 544, 1064
Leveck v. Shaf toe, 2 Esp. 468, 152,

1023
Level V. Farris, 24 Mo. App.

445, - - 825,826,828,835.
Leverson v. Lane, 13 C. B. N.

S. 378, 362

Levi V. Karrick, 8 Iowa, 150, - 660,

974, 1007

V. Karrick, 13 Iowa,, 344, 237, .

777, 938, 954

Lev.]

TABLE OP CASES.

[Lit,

Levi V. Latham, 15 Neb. 509 (48

Am. Rep. 361), 339, 344, 345, 427
Levick's Appeal (Pa.), 3 Atl.

Rep. 532, - ... 429
Levin v. Vannevar, 137 Mass.

532, 961

Levine v. Michel, 35 La. Ann.

1121, 988

Levy V. Cadet, 17 S. & R. 126

(17 Am. Deo. 650), . - 704
V. Cowan, 27 La. Ann.

556, .... 1101, 1113

V. McDowell, 45 Tex. 220, 1154

V. Pyne, Car. & Marsh.

453, ... - 329, 364

V. Walker, 10 Ch. D. 436, 670

V. Williams, 79 Ala. 171, 1181

Lewis, Re, 8 Bankr. Reg. 546;

3 Hughes, 820, - 841, 843, 847,

848

V. Alexander, 51 Tex. 578, 101,

114, 137

V. Allen, 17 Ga. 300, - 331

V. Anderson, 20 Oh. St.

281, - - - - 187, 295
V. Culbeftson, 11 S. & R.

48, - - - - ' - - 728

V. Davidson, 39 Tex. 660, 529

V. Edwards, 7 M. & W.

300, 856

V. Greider, 51 N. T. 231

(affg. 49 Barb. 605). - - 43

V. Harrison, 81 Ind. 278,' 831

V. Langdon, 7 Sim. 421, - 658,

678

V. Molfett, 11 ni. 392, 770, 777,

778
V. Paine, 1 Pa. Leg. Gaz.

Rep. 508, . - - . 1103

V. Post, 1 Ala. 65, 1149, 1154,

1168

V. Reilly, 1 Q. B. 349, 841, 853,

636, 690, 691
V. Tilton, 64 Iowa, 320

(52 Am. Rep. 436), - - 75

V. Westover, 39 Mich. 14, 519,

531

Liberty Savings Bank v. Camp-
bell, 75 Va. 534, 411, 1088, 1043,

1046
Liddell v. Crain, 53 Tex. 549, - 393
Ligare v. Peacock, 109 111. 94, 181,
589, 770, 781, 795, 798, 1151
Lill V. Egan, 89 111. 609, - - 453o
Lime Rock F. & M. Ins. Co. v.

Treat, 58 Me, 415, - - 342

Lincoln v. White, 30 Me. 291, 288
Lindell v. Lee, 34 Mo. 103, - 882
Linderman v. Disbrow, 31 Wis.

465, . - - . 850, 893
Lindh v. Crowley, 29 Kan. 756, 328,
341, 348, 361, 370
Lindley v. Davis, 6 Montana,

453, ... . 1131

Lindsay v. Gibbs, 3 De G. & J.

690, ....
V. Guy, 57 Wis. 300,

V. Hoke, 21 Ala. 542,

V. Jaflray, 55 Tex. 636,

185
981,
1147
896
296,
1073
Lindsey v. Edmiston, 25 111.

859, . - - 156, 1150

Linford v. Linford, 28 N. J. L.

113, .... 834, 1114
Lingen v. Simpson, 1 Sim. &

Stu; 600, - . 550, 551, 561
Lingenfelser v. Simon, 49 Ind.

83, 524, 585

Lingood v. Bade, 3 Atk. 501,

505, 234

Lininger v. Raymond, 9 Neb.

40, - ... . - . 1131
Linn v. Buckingham, 2 111. 451, 1121

V. Ross, 16 N. J. L. 55, . 477

Linner v. Dare, 3 Leigh (Va.),

588, 747

Lintner v. Millikin, 47 IlL 178, 47,
1185, 1158
Linton v. Hurley, 14 Gray, 191, 463
Lippincott v. Shaw Carriage

Co. 25 Fed. Rep. 577, - 1049, 1087
Litchfield, Re, 5 Fed. Rep. 47, 832
v. Daniels, 1 Col. 268, - 1078

Lit.]

TABLE OF CASE3.

[LoN.

Littell V. Fitoh, 11 Mich. 525, 348, 361
Little V. Cambridge, 9 Cush.

298, .... 176, 177

V. Ferguson, 11 Mo. 598, - 700

V. Hazzard, 5 Harr. (Del.)

291, - , - - - 416, 1169

V. MerriU, 63 Me. 838, 70

V. Qainn, 1 Cint. Superior

Ct. Eep. 379, - - - 537, 588

V. Snedecor, 53 Ala. 167, 381,

986
Liverpool, etc. Nav. Co. v.

Agar, 14 Fed. Rep. 615; 4

Woods, C. C. 201, - - 173, 1059
Liverpool, London & Globe

Ins. Co. V. Verdier, 35 Mich.

395, 371

Livingston v. Blanchard, 130

Mass. 341, - - - 231, 813

V. Hastie, 3 Caines, 246, - 362

V. Lynch, 4 Johns. Ch.

573, ... 17, 318, 484
V. Pittsb. & Steub. R. R.

2 Grant's Cas. (Pa.) 319, 438, 439

V. Ealli, 5 E. & B. 133, - 288

V. Roosevelt, 4 Johns. 251

(4 Am. Dec. 273), 12, 817, 324, 349,

353
Uoyd, Re, 33 Fed. Rep. 88; 5

Am. Law Rec. 679, - - 832

, Re, 33 Fed. Rep. 90, 835, 837

V. Archbowie, 2 Taunt.

824, 1033

V. Ashby, 3 B. & Ad. 23, 199,

441

V. Ashby, 3 C. & P. 138, - 439

V. Carrier, 2 Lans. 364, 783, 785

V. Freshfield, 2 C. & P.

333, 870

V. Loaring, 6 Ves. 773, 75, 1028

V. Thomas, 79 Pa. St. 68, 695

Lobdell V. Mchts. & Man. Bk.

33 Mich. 408, - - - 1074

Lochrane v. Stewart (Ky.), 2

S. W. Rep. 903, - - - 708
Locke V. Hall, 9 Me. 183, 503, 558,

1114

Locke V. Lewis, 184 Mass. 1, - 1046
V. Stearns, 1 Met. 560 (35

Am. Deo. 383), - - 472, 475
.Lockhart y. Lytle, 47 Tex. 452, 853,

943
Lockridge v. Wilson, 7 Mo. 660, 1140,
1143, 1155
Lockwood V. Beckwith, 6

Mich. 168, - - 306, 446, 1153
V. Comstock, 4 McLean,

388, .... 694, 695

V. Doane, 107 111. 235, 35, 1039

V. Mitchell, 7 Oh. St. 387, 715

Lodge, Ex parte, 1 Ves. Jr. 166, 888

V. Dicas, 3 B. & Aid. 611, 505

V. Prichard, 1 DeG. J. &

S. 610, ... - 835, 838

V. Weld, 139 Mass. 499, - 671

Loeb V. Pierpoint, 58 Iowa,

469 (48 Am. Rep. 132), - 338, 339
Loesohigk v. Hatfield, 51 N.Y.

660 (a£f. 5 Robt. 36 ; 4 Abb.

Pr. (N. S.) 310), - 736, 731, 732
Loesser v. Loesser, 81 Ky. 139, 962
Logan V. Bond, 13 Ga. 193, - 446
V. Greenlaw, 39 Fed. Rep.

399, .... 297, 737

V. Mason, 6 W. & S. 9, - 491

V. Wells, 76 N. Ca. 416, - 456,

1051
Logie V. Black, 24 W. Va. 1, - 36
Lomme v. Kintzing, 1 Mon-
tana, 390, - - 333, 333, 1055
London Assur. Co. v. Bold, 6

Q. B. 514, .... 655
V. Drennen, 116 U. S. 461

(rev. Drennen v. London Ass.

Corp. 20 Fed. Rep. 657), 5, 6, 357,
371, 273
London Syndicate v. Lord, 8

Ch. D. 84, - - - . 972
Loney v. Bailey, 43 Md. 10, 535, 537,

1049
Long, Re, 7 Ben. 141 ; 9 Bankr.

Reg. 337, - - 563, 563, 833
V. Carter, 3 Ired. (N. Oa.)

L. 238, 340

LON.]

TABLE OF CASES.

[Lua

Long V, Garnett, 59 Tex. 229, 607,

624

V. McDonald, 39 Ga. 186, 1055,

1170
V. Majestre, 1 Johns. Ch. ,

805, .... 485, 794

V. Story, 10 Mo. 636, 607, 695

V. Story, 13 Mo. 4, - - 1167

Longman v. Pole, 1 Moo. & M.

233, .... 383, 896

Loomis V. Armstrong, 49 Mich.

521, .... 770, 772
V. Ballard, 7 Up. Can. Q.

B. 866, 524

V. Barker, 69 111. 360, . 465

V. Barrett, 4 Vt. 450, - 899

V. Loomis, 26 Vt. 198, 701, 1166

V. Marshall, 12 Conn. 69

(80 Am. Dec; 596), 16, 28, 39, 48

V. McKenzie, 31 Iowa, 425, 594,

994
V. Pearson, Harper, L. (S.

Ca.) 470, . . . 694, 1092

Looney v. Gill en waters, 11

Heisk. (Tenn.) 133, - 761, 917
Loosemore v. Radford, 9 M. &

"W. 657, 636

Lorch V. Aultman, 75 Ind. 163, 1008
Lord v. Anderson, 16 Kan. 185, 388,

812

V. Baldwin, 6 Pick. 848, - 155,

1053, 1083

T. Davis, 3 Allen, 181, 140, 141

V. Devendorf, 54 Wis. 491, 569,

825

V. Parker, 8 Allen, 127, 189,

140

V. Proctor, 7 Phila. 630, 16,

23, 47
Loringv. Brackett, 3Pick.403, 888
Loscombe v. Bussell, 4 Sim. 8, 910
Lothrop V. Adams, 133 Mass.

471 (43 Am. Rep. 528), - 467
V. Wightman, 41 Pa St.

297, 1111

Loubat V. Nourse, 5 Fla, 350, 70,
281, 390, 293

Louden v. Ball, 93 Ind. 233 (18

Centr. L. J. 401, and note), 847
Love V. Blair, 72 Ind. 281, - 1061

V. Carpenter, 30 Ind. 284, 790

V. Payne, 73 Ind. 80 (88

Am. Rep. Ill), . - 158, 161

V. Ehyne, 86 N. Ca. 576, 850

Lovegrove v. Nelson, 3 M. &

K. 1, 160

Lovejoy v. Bowers, 11 N. H.

404, ..... 184, 185

V. Spaflord, 93 U. S, 430, 618,

633
Lovel V. Whitridge, 1 McCord,

■ L. 7, 1079

Lovell V. Gibson, 19 Grant's

Ch. (Up. Can.) 380, - 71)9

Loveridge v. Larned, 7 Fed.

Rep. 294, .... 524
Low V. Allen, 41 Me. 248, 188, 550
Lowe v. Dixon, 16 Q. B. D.

455, 78"

V. Lowe, 13 Bush, 688, 297, 298

V. Penny, 7 La. Ann. 356, 612

V. Thompson, 86 Ind. 503, 310

Lowell Natl. Bk. v. Train, 2

Mich. Lawyer, 27, - . 386
Lower v. Denton, 9 Wis. 26S, 854,

871, 873
Lowery v. Drew. 18 Tex. 786, 382,

416, 428
Lowry v. Brooks, 3 McCord (8.

Ca.), L. 421, . - 43, 57, 59

V. Cobb, 9 La. Ann. 592, 306,

312
V. Hardwick, -4 Humph.

(Tenn.) 188, .... 537
Lucas V. Baldwin, 97 Ind. 4711, 863,

1068

V. Beach, 1 M. & G. 417, 854,

868
V. Bruce (Louisville Chan-

ceiy Ct. 1864), 4 Am. Law

Reg. (N. S.) 95, . . 462

V. Cole, 57 Mo. 143, - - 81

V. Coulter, 104 Ind. 81, - 503,

510, 511

Luc]

TABLE OF CASES.

[McO.

Lucas V. De La Gour, 1 M. & S.

249, - - - 1030, 1031

V. Sanders, 1 McMuU. 311, 416,

431
Luce T. Hartshorn, 7 Lans. 331

(affd. in 56 N. T. 631), - - 830
Lucht V. Behrens, 28 Oh, St.

231, - - - - 600, 739
Ijuckombe v. Ashton, 2 P. & F.

705, ' .... 75

Luddington v. Bell, 77 N. Y.

138 (33 Am. Rep. 601 ; rev. 11

J. & Sp. 557), - - 533, 537
Ludington v. Taft, 10 Barb.

447, ..... 938
Ludic w V. Cooper, 4 Oh. St. 1, 298,

743, 924
Ludlurn v. Buckingham, 35 N.

J. Bq. 71; 39 id. 563, - 743, 745
Lumberman's Bk. v. Pratt, 51

Me. 563, - - - 690, 694

Lunt V. Stevens, 24 Me. 534, - 383,
385, 681, 684
Lush V. Graham, 21 La. Ann.

159, .... 455

Lusk V. Smith, 8 Barb. 570, - 695
Lycoming Ins. Co. v. Barrin-

ger, 73 HI. 230, - - - 79
Lyell V. Sanbourn, 2 Mich. 109, 424
Lyle V. Jacques, 101 111. 644, -i 176
Lyles V. Styles, 2 Wash. C. 0.

224, 763

Lyman v. Lyman, 2 Paine, C.

C. 11, 13, 301, 319, 766, 770, 907,
939, 974
Lynch v. Bitting, 6 Jones (N.

Ca.), Eq. 338, ... 955

v. Flint, 56 Vt. 46, - - 439

V. Swanton, 53 Me. 100, - 1160

V. Thompson, 61 Miss. 354, 33,

332, 323, 345, 459, 1096
Lyndon v. Gorham, 1 Gall. 367, 1103,

1113
Lyon V. Haynes, 5 M. & G. 504, ' 856,

886

V. Johnson, 28 Conn. 1, - 610,

613, 631, 634

Lyon V. Knowls, 3 Best & Sm.

556, .... 45, 59
V. Malone, 4 Porter (Ala.),

497, 878

V. Tweddell, 17 Ch. D.

539, .... 597, 803
Lyons v. Jackson, 1 How.

(Miss.) 474, - - - 1093

Lysaght v. Davern, 5 Bli. N.

E. 1, 489

Lysagt V. Phillips, 5 Duer, 106, 386
Lyth V. Ault, 7 Ex. 667, - - 505

M.

McAdams v. Hawes, 9 Bush,

15, - - 110, 5S2, 585, 790

McArthur v. Chase, 13 Gratt.

683, - - - - 906

V. Ladd, 5 Oh. 514, 41, 43, -

873

V. Oliver, 53 Mich. 299, - 698

McBain v. Austin, 16 Wis. 87, 411
McBirney v. Ha^rran, 5 Irish

Law Rep. 438, ' - " - - 1017
McBride v. Hagan, 1 Wend.

336, - - 336,414,415,431

V. Stradley, 103 Ind. 465, 770,

775
McCabe v. Franks, 44 Iowa,

308,. - - - 983, 984, 985
V. Morrison, 2 Harr. (Del.)

66, 1033

McCallum v. Buffalo & Lake

Huron E'y Co. 19 Up. Can.

C. P. 117, - - - - 67
McCament v. Gray, 6 J^laokf.

233; 943

McCandless v. Had den, 9 B.

Men. 186, - 71§, 733, 735, 1039
McCann v. McDonald, 7 Neb.

305, - 331, 1094, 1151, 1154

McCart v. Lewis, 3 B. Mon.

267, .... 414,416

McCarthy v. Nash, 14 Minn.

137, - - - 1140, 1141
V. Peake, 18 How, Pr, 133, 965

ilcC]

TABLE OF CASES.

[MoC.

McCartney v. Garneau, 4 Mo.

App. 566-7, - - - - 734

V. Hubbell, 53 Wis. 360, - 733

V. Nixon, 2 DaU. 65, n., - 723

McCarty v. Emlen, 3 DaU. 277;

2 Yeates, 190, - - - 1103

V. Nixon, 2 Ball. J5, 66, - 716

Mi"CaskiIl v. Lancashire, 83 N.

Ca. 393, - - - - 294

McCauley v. Cleveland, 21 Mo.

438, 257

V. Fulton, 44 Cal. 855, 184, 38i,

291, 1103
V. Gordon, 64 Ga. 231 (37

Am. Rep. 68), - - - 194
McCauIy v. McFarlane, 2 De-

saus. (S. Ca.) 239, - 557, 567, 906
McCIean v. Kennard, L. E. 9

Ch. App. 336, - - 795, 974
V. Miller, 3 Cranch, C. C.

620, ... 494, 534

M'Clelland v. Eemseii, 36 Barb.

633 ; 14 Abb. Pr. 331 ; 23 How.

Pr. 175; 3 Keyes, 454; 8 Abb.

App. Dec. 74, 401, 406, 518, 686
McClinoh v. Sturgis, 72 Me,

288, 4

McCloskey v. Strickland, 7

Iowa, 359, - . - . 1068
V. Wingfield, 29 La. Ann.

141, 653

McClung V. Capehart, 24 Minn.

17, - - - - 942, 949, 951
McCIure v. Hill, 36 Ark. 268, - 465
McClurg V. Howard, 45 Mo.

865, ... - - 705
McClurkan v. Byers, 74 Pa."

St. 405, " 393

McOoll V. Oliver, 1 Stew. (Ala.)

510, - - , - 787, 858

McConeghy v. Kirk, 68 Pa. St.

200, 194

McConriell v. Denver, 35 Cal.

365, 73, 73

V. Gardner, Morris (Iowa),

272, - - - 75, 1024, 1028
V. Hector, 3 B. & P. 113, 110

McConnell v. Wilkins, 13 Ont.

App. 438, - - - 349, 353
McCord V. Field, 27 Up. Can.
C. P. 891, 329, 343, 871, 446, 448

V. Seale, 56 Cal. 363, - 129

V. "Williams, 96 Pa. St. 78, 664,

666
.McCorkle v. Doby, 1 Strob.

(S. Ca.) L. 396 (47 Am. Dec.

560), ... - 1151

McCormick's Appeal, 55 Pa. St.

353, .... 845

McCormick v. Gray, 13 How.

36, ..... 234
V. Largey, 1 Montana,

158, - - I - - - 865
— ^ v. McCormick, 7 Neb. 440, 546,

786
McCowin V. Cubbison, 73

Pa. St. 358, .... 695
McCoy V. Anderson, 47 Mich.

503, - - . . 176, 177

V, Boley, 21 Fla, 803, 403, 406,

407

. V. Watson, 51 Ala, 466, - 1064

McCracken v. Milhous, 7 Hi.

App. 169, - 484, 510, 511, 868
McCrae v. Robeson, 2 Murph.

(N. Ca.) 127, . - - 765

McCrary v. Menteer, 58 Mo.

446, 784

V. Slaughter, 58 Ala. 230, 329

McCreary v. Van Hook, 35

Tex. 63i; - . - 448, 647
McCredie v. Senior, 4 Paige,

378, 989

McCrillis v. Hawes, 38 Me. 566, 386,

471
McCulloch V. Judd, 20 Ala.

703, 1051

MoCuUough v. Sommerville, 8
.Leigh (Va.), 415, - 840, 403, 418,
569, 825
M'Culloh V. Dashiell, 1 Har. &

G. (Md.) 96 (18 Am. Dec.

271), 747, 825, 828, 832, 838, 834
McCuUy V. McCully, 78 Va. 159, 301

McC]

TABLE OF CASES.

[Mcli

McCutchen v. Banston, 2 Ga.

244, 331

V. Rice, 56 Miss. 455, - 1170

McDaniel v. Wood, 7 Mo. 642, 690
McDermot v. Laurence, 7 S. &

R. 438 (10 Am. Dec. 468), - 289
McDonald v. Beach, 2 Blackf.

55, . - - 559, 568, 824

V. Eggleston, 26 Vt. 154

(60 Am. Dec. 303), 414, 416, 418

V. Matney, 82 Mo. 358, 2, 17,

29, 1160

V. Parker, Sneed (Ky.),

208, 446

McDonnell v. Battle House Co.

67 Ala. 90 (42 Am. Rep. 99), 45

McDougald v. Banks, 13 Ga.

451, 543

McDowell V. Tyson, 14 S. &R.

300, - ... 1081

McElroy v. Ludlum, 32 N. J.

Eq. 828, 701

V. Melear, 7 Cold. 140, 698

McElvey v. Lewis. 76 N. Y.

373, - - - 571, 994, 998
MoEwan, Re, 12 Bankr. Reg.

11; 6 Bias. 294, - - 833,838

V. Gillespie, 3 Lea, 204, - &44

McFadden v. Hunt, 5 W. & S,

468, - - - - 882

McFadgen v. Stewart, 11

Grant's Ch. (Up. Can.) 273, - 942,

948
McFarland v. Carey, 8 Cow.

253 (affd. 6 Wend. 297), - 389

V. Chase, 7 Gray, 462, - 288

V. Crary, 8 Cow. 253, - 475

V. Lewis, 3 111. 344, - - 1146

V. Stewart, 2 Watts, 111, - 657

McFerran v. Filbert, 102 Pa.

St. 73, - - - - 224, 590
McGar v. Drake (Tenn. 1877), 5

Reporter, 847, - . - 80
McGhee v. Dougherty, 10 Ala.

863, 858

McGill V. Dowdle, 33 Ark. 311, 64,

365

McGill V. McGUI, 2 Met. (Ky.)

258, - - 709, 711, 747, 750
McGilway v. Clement, 6 Mo.

App. 597, - - - 714, 733
McGinty v. Flannagan, 106 U.

S. 661, 741

McGIensey v. Cox, 1 Pliila.

387; 5 Pa. L.J. 203; 1 Am.

Law Reg. (O. S.) 34, 158, 160, 756,

999
McGowan v. Amer. B'k Co. (S.

C. U. S. 1887), - - - 611

V. Bank of Ky. 5 Litt. 271, 861

McGowan Bros. Pump &Mach.

Co. V. McGowan, 23 Oh. St.

370 (a.tt. 3 Superior Ct. Rep.

313), - - 671, 673, 690

McGown V. Sprague, 33 Ala.

534, - . . . ' 554, 560
McGraw v. Pulling, 1 Freem.

(Miss.) Ch. 857, - - 211

McGregor v. Cleveland. 5

Wend. 475, 300, 319, 338, 437, 453,
1067, 1139, 1140

■■ V. Ellis, 2 Disney, 286, 403, 406,

559, 560, 824
McGrew v. Walker, 17 Ala. 834, 1149,

1158
McGuire v. Blanton, 5 Humph.

361, - - 868
V. O'Halloran, Hill & D.

Supp. 85, - - ■ - 1155

V. Ramsey, 9 Ark. 518, 285, 943,

948, 950
McGunn v. Hanlin, 29 Mich.

476, 114, 127, 143, 864, 961, 963

McHale v. Oertel, 15 Mo. App.

583, - . - - 164, 881
McUreath v. Margetson, 4

Doug. 378, - - - 761

Mcllroy v. Adams, 33 Ark.

315, 4C5

Mcllvaine v. Franklin, 2 La.

Ann. 633, - - ' - - 1168
Mclntire v. McLaurin, 3

Humph. 71 (86 Am. Dec.

600), 194

OXIX

McL]

TABLE OF CASES.

[McN.

Mclntire v. Miller, 13 M. & W.
735, - ... 531

V, Oliver, 2 Hawks v(N.

Ca.), 209, .... 703

V. Yates, 104 HI. 491, 825, 848

Mclntyre v. Belcher, 14 C. B.

N. S. 654, .... 219

McKaig V. Hebb, 43 Md. 227, - -808,

930, 942, 945

McKay v. Joy, 70 Cal. 581 (9

■ Pac. Rep. 940), 715, 716, 735, 909

V. Overton, 65 Tex. 82, 786, 880

V. Eutherford, 13 Jur. 21, 308

McKean v. Vick, 108 111. 373, 740
McKeand v. Mortimore, 11 Up.

Can. Q. B. 438, - 503, 507, 516
McKee v. Bank of Mt. Pleas-
ant, 7 Oh. 2d pt. 175, 377, 380,

414

V. Hainilton, 33 Oh. St. 7, 443,

451, 453, 472, 524

V. Stroup, Rice (S. Ca.),

391, .... 381, 411
McKelvy's Appeal, 73 Pa. St.

409, - - 583, 942, 943, 945
McKenna's Appeal, 11 Phila.

84, 377, 453

McKenna, Ex parte, 3 DeG. F.

& J. 645, - - 384, 285, 387
McEenzie v. Dickinson, 43 Cal.

119, 311

McKersher, Re, 8 Baukr. Reg.

409, 1131

McKillip V. Cattle, 13 Neb.

477, 504

MpEinney v. Baker, 9 Oregon,

74, 561

V. Bradbury, Dallam

(Tex,), 441, - 347, 361, 441, 447

V. Rosenband, 33 Fed.

• Rep. 785, - - - 564, 1130
McKnight v. McCutchen, 37
Mo. 436, .... 856

V. Wilkins, 1 Mo. 330

[308], - - - 414, 419

McKowen v. McGulre, 15 La.
Ann. 637, - - - 715, 718

McLain v. Carson, 4 Ai'k. 164

(37 Am. Deo. 777), - - 749
McLanahan v. EUery, 3 Mason,

267, 543

MoLane v, Sharpe, 2 Harr.

(Del.) 481-, - - - 415, 1035
McLaughlin v. Simpson, 3 •

Stew. & Por. (Ala.) 85, 739, 933
McLaurin v. McCoU, 3 Strob.

L. 21, ■ . - - - - 59
McLean, Re, 15 Bank'r. Reg.

333, .... 833, 838
McLellan v. Cumberland Bank,

24 Me. 534, - - - - 385
v. Detroit File Works, 56

Mich. 579, .... 8
McLelland v. Ridgeway, 13

Ala. 482, . - - . 1160
McLeod V. Bullard, 84 N. Ca,

,315, 333

— V. Lee, 17 Nev. 103, - 333

McLewer v. Hall, 103 N. Y.

639, 99

McLinden v. Wentworth, 51

"Wis. 170, - - 199, 446, 507
McLucas V. Durham, 20 S. Ca.

303, .... 633, 959
McLure v. Ripley, 2 Mach. &

G. 274, 313

McMahan v. Thornton, 4 Mon-
tana, 46, - - - - 910
McMahon v. McClernan, 10 W.

Va. 419, ' - 306, 571, 793, 1007
^ V. O'Donnell, 20 N. J. Eq.

306, 43

V. Rauhr, 47 N. Y. 67, ^75,^ 1028

McMichael v. Raoul, 14 I^

Ann. 307, - - - - 771
McMillan v. Hadley, 78 Ind.

590, - - . . . 1102
MoMuUan v. Mackenzie, 3 G.

Greene (la.), 368, - 361, 1135, 1136
McMurry v. Fletcher, 24 Kan.

574; 38 Kan. 337, - - 396

McNalr v. Fleming, cited in 3

Dow. 318, 329, - - - 107
V. Piatt, 46 Ul. 311, - - 411

McN.]

TABLE OF CASES.

[Mao.

McNair v. Eagl'and, 1 Dev. Eq.

516, - . . . 764, 787
— — V Eewey, 63 Wis. 167, - 445,
1131, 1132
McNally v. Kerswell, 37 Me.

350, 714

McNamara v. Dratt, 33 Iowa,

3S5, 1144

'McNaughten v. Partridge, 11

Oh. 223 (38 Am. Dec. 731), - 377,
420, 431, 423
McNaughton's Appeal, 101 Pa.

St. 550, - - 446, 544, 567, 1045
McNaughton's Appeal, 103 Pa.

St. 368, 377

McNaughten v. Moore, 1 Hay w.

(N. Ca.) 189, - - - - 580
McNeal v. Blackburn, 7 Dana,

170, -.---■ 534
McNeely v. Haynes, 76 N' Ca.

133, . - - - 468, 1120
McNeil V. Congregational Soo.

66 Cal. 105, - - 291, 398, 394
McNeill V. Reid, 9 Bing. 68, - 870

V. Reynolds, 9 Ala. 313, - 1147

' McNeillie v. Acton, 4 DeG. M.

& G. 744, - - - - 601
MoNeish v.. Hulless Oat Co. 57

Vt. 316, ' 73, 316, 319, 333, 430, 580,

1153
McNicol V. McEwen, 3 Up.

Can. Q. B. (old ser.) 485, - 858
McNutt V. King, 59 Ala. 597, • 588
V. Strayhorn, 39 Pa. St.

260, - - - 190, 339

McPeters v. Bay, 85 N. Ca. 463, 966
McPherson v. Pemberton, 1

Jones, L. 378, - , 116, 133, 1105

V. Rathbone, 11 Wend. 98, 1155

McQuewans v. Hamlin, 35 Pa.

St. 517, 349

McRae v. McKenzie, 2 Dev. &

Bat. Eq. 333, - 764, 910, 968

McRobert v. Crane, 49 Mich,

483, 1071

McShoi'ry v. Brooks, 46 Md.

103, - - 861, 880, 881, 887

399
1170

366

McStea v. Matthews, 50 N. Y.

166; 91 U.S. 7, - - 86,583
McWhorter v. McMahan,

Clarke, ,Ch. 400; 10 Paige,

886,

V. Sell, 66 Ga. 139, -

Mc Williams Mfg.' Co. v. Blun-

dell, 11 Fed. Rep. 419; 23

Pat. Oflf. Gaz. 177,
Mabbett v. White, 12 N. Y. 442

(explained in Pettee v. Orser,

6 Bosw. 133, 187), - 180, 403

Macdougall v. Jersey Imperial

Hotel Co. 2 Hem. & M. 528, 433
Machinists' Nat'l Bank v. Dean,

134 Mass. 81, - - - 73, 73, 580
Macintosh v. Fatman, 38 How.

Pr. 145, - - - - 503

Mack V. Spencer, 4 Wend. 411, 1068

V. Woodruff, 87 111. 570, - 453,

831, 839, 930
Mackay v. Blood good, 9 Johns.

385, - - - 336, 416, 419
Maokenna v. Parkes, 36 L. J.

Ch. 366; 15 W. R. 317, - 805, 807
Mackey, Re, 3 A. & E. 256, - 334
— - V. Auer, 8 Hun, 180, - 858
Mackinnon Pen Co. v. Foun-
tain Ink Co. 48 N. Y. Su-.

perior Ct. 443, - - - 678
Macklin v. Crutcher, 6 Bush,

401, 205, 439, 440, 443, 446, 523, 527
V. Kerr, 28 Up. Can, C. P.

90, .... 821, 849

Maclae v. Sutherland, 3 E. &

B. 1, 346

Maclay v. Freeman, 48 Mo. 234, 1085
Maoomber v. Wright, 85 Me.

156, - - . - 1125, 1127
Macy V. Combs, 15 Ind. 469, 23, 48,

1155
V. De Wolf, 3 Woodb. &

M. 193, - - - - -
Maddeford v. Austwick, 1 Sim,

80 (aff'd 3 Myl. & K. 379), -
Maddock v. Astbury, 32 N. J.

Eq. 181, - - - 247, 298, 1013

70

309

cxxi

Mad.]

TABLE OF CASES.

[Man.

Maddox v. Stephenson, 60 Ga.

125, 985

Madge v. Puig, 13 Hun, 15, 873, 874
Madgwick v. Wimble, 6 Beav,

495, - - - - 51, 249
Maflfet V. Leuckel, 93 Pa. St.

468, - - - - 440, 450
Mafflyn v. Hathaway, 106

Mass. 414, - - - - 543
Magdalena Steam Nav. Co. v.

Martin, 2 E. & E. 94, - - 131
Magee v. Dunbar, 10 La. 546, 398
Maghee v. Baker, 15 Ind. 254, 137
Magill V. Merrie, 5 B. Mon.

168, - - 3G1, 597, 608, 613
Magovern v. Robertson, 40

Hun, 166, - - - - 23,47
Mahan v. Sherman, 7 Blackf.

378, - - - 880, 901

Maher v. Bull, 44 HI. 97, 591, 761,
764, 780, 938, 994
Mahnke v. Neale, 23 W. Va.

57, 962

Maiden v. Webster, 30 Ind.

517, 200

Maier v. Canavan, 8 Daly, 272, 534

V. Herman, 4 Daly, 168, 676

Main v. Rowland, Rich. Eq.

Cas. 853, - - - 954, 958
Maingay v. Lewis, Irish Rep.

5 Com. L. 339 (rev'g 3 id.

495), 533

Mainwaring v. Newman. 3 B.

6 P. 130, - - - 883, 900
Mair v. Bacon, 5 Grant's Ch.

(Up. Can.) 388, - - 164, 165
'v. Beck (Pa.), 3 Atl. Rep.

318, - - - 379,380,688

V. Glennie, 4 M. & S. 340, 59

Maitland v. Goldney, 3 East,

426, 1031

Major V. Hawkes, 13 111. 398, 681,

682
Malbec de Montjoo v. Sperry,

95 U. S. 401, 974, 976, 1075

Malcolmson v. Malcolmson, 1

Irish L. R. Ch. D. 228, 441, 453a

Malley v. Atlantic Ins. Co. 51

Conn. 233, - - 356, 363, 371
Maltby v. Northwestern Va. R.

R. Co. 16 Md. 433, 316, 317, 833,
373, 430
Manchester v. Mathewson, 3

R. I. 237, . - - . 943
Manchester Bank, Ex parte, 13

Ch. D. 917, - - - - 563
Manchester, etc. Bank, Ex

parte, L. R. 18 Eq. 249, - 843
Manegold v. Dulau, 30 Wis.

541, .... 543,1017
Manhattan Co. v. Ledyard, 1

Caines, 193, - - - - 1068
Manhattan Brass & Mfg. Co. v.

Sears, 45 N. T. 797 (6 Am.

Rep. 177); rev. s. C. 1

Sweeney, 436, - - 17, 47

Manhattan Ins. Co. v, Web-
ster, 59 Pa. St. 237, - 361, 371
Mauley v. Taylor, 50 N. Y.

Sup. Ct. 36, - - - - 818
Mann v. Flanagan, 9 Oregon,

425, - - .- - 770, 777

V. Higgins, 7 Gill, 265,

V. Locke, 11 N. H. 346,

823

701,

704

59

V. Taylor, 5 Heisk. 267,

Manning v. Brickell, 3 Hayw.

(N. Ca.) 133, - - 681, 733, 1006

V. Gasharie, 37 Ind. 399, - 76

V. Hays, 6 Md. 5, 358, 361, 373,

401

V. Smith, 16 Nev. 85, - 733

V. Williams, 3 Mich. 105, 749

Manny v. Frasier, 37' Mo. 419, 503
Manson, Town of, v. Ware, 63

Iowa, 845, - - - 101, 1154
Mant V. Mainwaring, 8 Taunt.

139; 3 Moore, 9, - - - 1167
Manuel v. Escolle, 65 Cal. 110, 735
Manuf. & Mech. Bk. v. Gore,

15 Mass. 75 (8 Am. Dec. 83), 470
Manufacturers', etc. Bank v.

Winship, 5 Pick. 11 (16 Am.

Dec. 369), - 193, 361, 443, 445

Man.]

TABLE OF CASES.

[Mam.

Manville v. Parks, 7 Colorado,

128, - - . 333, 339, 374
Maquoketa, City of, v. Willey,

35 Iowa, 333, - - - 551

Mare v. Charles, 5 E. & B. 978, 441
Maret v. Wood, 3 Crainch, 0.

C. 3, 1067

Marientha) v. Am burgh, 3 Dis-
ney, 586, - - - 1065, 1088
Marietta & Cin. B. R. v.

Mowry, 38 Hun, 79, - - 393
Marine Bank v. Ogden, 29 111.

248, ----- 183

Marine Co. v. Carver, 43 111. 67, 438
Maritime Bank of Bangor v.

Rand, 24 Conn. 9, - 1056, 1065

Markham v. Buckingham, 21

Iowa, 494, - - - 1059, 1064

V. Gehan, 43 Mich. 74, - 1103

V. Hazen, 48 Ga. 570, 199, 347,

441, 510, 515

V. Jones, 7 B. Mon. 456, 91, 94

Marks v. Hill, 15 Gratt. 400, 565, 567

V. Sayward, 50 Cal. 57, - 184

V. Sigler, 3 Oil. St. 858, - 1160

V. Stein, 11 La. Anp. 509, 17,

33, 853
Marlatt v. Soantland, 19 Ark.

443, - - - - " 715, 716
Marlett v. Jackman, 3 Allen,

287, - . - 315, 346, 580, 610, 1073
Marlin v. Kirksey, 33 Ga. 164, ' 543,

550, 561
Marquand v. N. T. Mfg. Co. 17

Johns. 535, 577, 583, 585, 788, 813

V. Webb, 16 Johns. 89, - 1168

Marsh's Appeal, 69 Pa. St. 30

(8 Am. Rep. 206), 770, 777, 780

Marsh v. Bennett, 5 McLean,

117, - - 340, 504, 553, 563, 641

V. Davis, 33 Kan. 336, 288, 301

V. Dawes, 3 Biss. 351, - 43

v.Gold, 3 Pick. 285, 339,350,365

V. Keating, 1 Bing. N. 0.

198 ; 2 CI. & Fin. 350 (affirms

Keating v. Marsh, 1 Mont.

& A. 582), .... 474

Marsh v. Mead, 57 Iowa, 535, - 1063
v. Northwestern Nat'l Ins.

Co. 3 Biss. 351, ... 29
V. Russell, 6Q N. T. 388

(rev. 2 Lans. 340), - 27, 113
V. Thompson Nat'l Bk. 2

111. App. 217, - 349, 358, 367

Marshall v, Colm'an, 2 Jac. &

W. 366, - . - . 199, 988

V. Johnson, 33 Ga. 500, - 306

V. McGregor, 59 Barb. 519, 1101

V. Watson, 25 Beav. 501, - 990

V. Winslow, 11 Me. 58 (25

Am. Dec. 364), - - - 875
Marsteller v. Weaver, 1 Gratt,

391, 949

Marston v. Dewberry, 31 La.

Ann. 518, - - - 1101, 1113

V. Gould, 69 N. Y. 320, - 56

Marten v. Van Schaick, 4

Paige, 479, 660, 993, 994, 998, 1003,

1007
Martien v. Manheim, 80 Pa.

St. 478, - . - - iot;j

Martin v. American Express

Co. 19 Wis. 336, _ - - 107J

V. Crump, 3 Salk. 444; 1

Ld. Ray. 340; Comb. 374, - 723

V. Davis, 31 Iowa, 535, - 1099

V. Fewell, 79 Mo. 401, -5,611

V. Good, 14 Md. 398, - 898

V. Kirk, 2 Humph. 539, 695,

700

V. Morris, 63 Wis.'418, 281, 394,

395, 397

V. Moulton, 8 N. H. 504, - 487

V. Searles, 28 Conn. 43, 618, 633

V. Smith, 25 W. Va. 579, 281,

290

V. Solomon, 5 Harr. (Del.)'

344, 858

V. Stubbings, 29 111. App.

381, 881

-^- V. Thrasher, 40 Vt. 460, 336

V. Walton, 1 McCord (S.

Ca.), L. 16, - 617, 618, 621, 695

V. Young, 85 N. Ca. 156, 1029

CXXUl

Mae.]

TABLE OF CASES.

[Mat.

Martyn v. Gray, 14 C. B, N. S.

824, - - - - 90, 91, 99

V. Knowles, 8 T. R. 146, 274

Marvin v. Buchanan, 62 Barb.

468, 443

V. Dutcher, 26 Minn. 891, 1171

V. Wilber, 52 N. T. 270, 315, 454

• Marwick, Re, 2 Ware, 233, 832, 833,

834
Marx V. Bloom, 21 La. Ann. 6, 853
Marye v. Jones, 9 Cal. 335, - 1006
Mason v. Connell, 1 Whart.

381, -^ 152, 156, 158, 161, 429, 577

V. Denison, 11 Wend. 613

(a£fd. 15 id. 64), - - 149, 1087

V. Denison, 15 Wend. 64, 148,

149

,r V. Eldred, 6 Wall. 231; 7

j Am. Law Reg. (N. S.) 402, 454,
J 535, 537, 1086

V. Hackett, 4 Nev. 420, - 43

V. Jouett, 2 Dana, 107, - 385

V. Parker, 16 Grant's Ch.

(Up. Can.) 230, - 187,291,295

V. Partridge, 66 N. Y. 633, 323

V. Potter, S6,Vt. 732, - 39, 43

V. Rice, 66 Iowa, 174, - 1121

V. Rumsey, 1 Camp. 384, 441

V. Tiffany, 45 111. 392, 529, 584,

707, 711, 730, 749, 750

V. Tipton, 4 Cal. 276, 275, 376,

403

V. Wickersham, 4 Watts

• & S. 100, - - - 524, 527
Massey v. Pike, 20 Ark. 92, - 419

V. Tingle, 39 Mo. 437, - 949

^ Masters v. Freeman, 17 Oh. St.

323, - . - - 863, 1039
Masterson v. Goodlett, 46 Tex.

402, 723

Mathers v. Greenj L. R. 1 Ch.

App. 29, - - - - 69

Mathews v. Felch, 25 Vt. 536, 1150
Mathewson v. Clarke, 6 How.

123, - - 164,167,937

Matlack v. James, 13 N. J. Eq.

126, - 184, 281, 291, 295, 446

Matlock V. Matlock, 5 Ind. 403, 281,
285, 290, 297
Matney v. The Gregg Bros.

Co. 19 Mo. App. 107, - 723, 724
Matteson v. Nathanson, 38

Mich. 377, - - - 694, 727
Matthews v. Colburn, 1 Strob.

(S. Ca.) L. 258, - - , - 534

V. Dare, 20 Md. 248, - 325

V. Hunter, 67 Mo. 293, - 294

V. McStea, 91 U. S. 7; 50

N. Y. 166, , - - - -
V. Wallwyn, 4 Ves. 118, -

583
958,
964
977

Mauck V. Mauck, 54 111. 281, ■
Maude, Ex parte, L. R. 2 Ch.

App. 550, - - 837, 838, 843
, Ex parte, L. R. 6 Ch. App.

51, - - - - - - 813

V. Rodes, 4 Dana, 144, 780, 863

Maughlin v. Tyler, 47 Md. 545, 338
Mauldin v. Branch Bk. at Mo-
bile, 2 Ala. 502, 349, 353, 362, 618,

631
Maulson V. Peck, 18 Up. Can.

Q. B. 113, - ... 23
Maungl v. Allies, 5 Jur. 860, 958, 964
Mauney v. Coit, 80 N. Ca. 300

(30 Am. Rep. 80), - - 695, 696
Maunsell v. Willett, 36 La.

Ann. 323, - - - - 43, 59
Mawman v. Gillett, in note to

2 Taunt. 324, '- - - 1022
Maxey v. Averill, 2 B. Men.

107, 749

V. Strong, 53 Miss. 280, - 694,

695, 700
Maxwell v. Allen, 78 Me. 33, - 250

V. Day, 45 Ind. 509, 523,524,537

V. Gibbs, 33 Iowa, 33, 102, 109

V. Port Tennant Co, 24

Beav. 495, - . - . 1012
V. Wheeling, 9 W. Va.

306, - - - 184, 189, 834
May, Re, 17 Bankr. Reg. 193, 842,

848
, Re, 19 Bankr. Reg. 101, - 838

Mat.]

TABLE OF CASES.

[Mel,

May V. Hewitt, 33 Ala. 161, - 441
Mayberg v. Steagall, 51 Tex. •

351, 558

Mayberry v. Sainton, S Harr.

(Del.) 34, . . ' - 349, 1088
V. Willoughby, 5 Neb. 368

(25 Am. Eep. 491), - - 704
Maybin v. Moorman, 31 S. Ca.

346, 545

Mayer v. Clart, 40 Ala. 259, - 559,

560, 834

V. Taylor, 69 Ala. 403, - 646

Mayhew's Case, 5 De G. M. &

G. 887, .... 160, 187
Mayhew v. Herrick, 7 C. B.

239, .... 274,1108

Maynard y. Briggs, 36 Vt. 94, 1033,

1035

V. Fellows, 43 N. H. 355, 485,

453a, 1068

V. Eailey, 2 Nev. 313, - 996

Mayo V. Bosson, 6 Oh. 535, - 959

V. Soyster, 30 Md. 403, - 189

Mayou, Ex parte, 4 DeG. J. &

S. 664; 11 Jur. N. S. 433; 12

L. T. N. S. 639, . . - 563
Mayrant v. Marston, 67 Ala.

453, 66

Mayson v. Beazley, 27 Miss.

106, - . - - 763, 794
Meachara v. Batchelder, 3 Pin.

(Wis.) 381 ; 3 Chand. 316, - 1068
Mead v. Bank of Fayetteville,

3 Bankr. Reg. [65] 173; 6

Blatch. 180; 7 Am. Law

Reg. (N. S.) 818, - - 841

V. Byington, 10 Vt. 116, . 743

V. Raymond, 53 Mich. 14, 734

V. Shepard, 54 Barb. 474, 334

Meader v. Leslie, 3 Vt. 569, 733, 734

V. Malcolm, 78 Mo. 550, - 448

V. Scott, 4 Vt. 36, - - 733

Meador v. Hughes, 14 Bush

<Ky.), 653, 27, '38, 507, 558, 833

Meaher v.'cox, 37 Ala. 301 (s.

C. Ala. Sel. Cas. 156),' 36, 67, J5S,
161, 3S3, 276, 594

Meason v. Kaine, 63 Pa. St.

335, - - - 301, 865, 1013
Mebane v. Spencer, 6 Ired. L.

433, 639

Mechanics' Bank v. Foster, 19

Abb. Pr. 47; 44 Barb. 87; 29

How. Pr. 408, . - - 353

V. Hildreth, 9 Cush. 356, 347,-

401, 543, 561, 583

V. Livingston, 33 Barb.

458, .... 349, 613

Mechanics' Bank, Receivers of,

V. Godwin, 5 N. J. Eq. 334, 184,
185, 395, 577, 585, 586, 937
Mechanics' & Farmers' Bk. v.

Dakin, 34 Wend. 411, 107, 196, 439
Mechanics' & Traders' Ins. Co.
'v. Richardson, 33 La. Ann.

1308 (39 Am. Eep. 390), 363, 446
Mecutchen v. Kennady, 37 N.

J. L. 330, - . - 358, 863
Medberry v. Soper, 17 Kan.

369, . . . , 333,457,527
Medbury v. Watson, 6 Met. 346

(39 Am. Deo. 736), - . 1034

Medill V. Collier, 16 Oh. St.

599, - - - - . 4, 7
Med win v. Ditcham, 47 L. T.

N. S. 250, - - - . 989
Meech v. Allen, 17 N. Y. 300, - 825,

847, 848
Meehan v. Valentine, 29 Fed.

Rep. 376, - - - - 23, 47
Meeker v. Thompson, 43 Conn.

77, 1079

Meggett V. Finney, 4 Strobh.

(S.Ca.)L. 320, - - - 704
Meily v. Wood, 71 Pa.St. 488

(10 Am. Rep. 719) (rev. 8

Phila. 517), - 173, 186, 389, 1102
Mellendy v. New Engl. Prot.

Union, 36 Vt. 31, . " - 208

Mellersh v. Keen, 27 Beav. 236, 574.

581, 597, 664, 769, 773, 794

V. Keen, 38 Beav, 453, . 661

Mellinger v. Parsons, 51 Iowa,

58, - - - . - 193, 570

cxxv

l.IjiL.]

TABLE OF CASES.

[Mia

Meltzer v. Doll, 91 N. T. 385, - 1147
Melvin, Re, 17 Bankr. Reg.

543, - - - 560, 564, 1171
Menagh v. Whitwell, 53 N. Y.

146 (11 Am. Rep. 683), 189, 558,
557, 563, 566, 567, 1111
Mendenhall, Re, 9 Bankr. Reg.

497, 5

V. Benbow, 84 N. Ca, 646, 290,

294, 719, 822
Mercantile Bk. v. Cox, 38 Me.

500, 443

Mercein v. Andrus, 10 Wend.

461, - . - . 349, 368
Mercer v. Sayre, Anth. (N.tY.)

119, 700

Merchant v. Belding, 49 How.

Pr. 344, -' - - - - 349
Merchants' Bk. v. Rudolf, 5

NeV. 537, - . - . 394
Merchants' & Manuf. Bk. v.

Stone, 38 Mich. 779, - - 4, 5
Merchants' Nat'l Bank v. Ray-
mond, 27 Wis. 567, - 136, 848
Meredith's Case. See State F.

Ins. Co.
Meredith v. Ewing, 85 Ind.

410, 640

Meridian Nat'l B'k v. Brandt,

51 Ind. 56, - '. . . 823
Merot V. Burnand, 4 Russ, 247;

2 Bli. N. S. 215, - - - 287
Merrick v. Brainard, 38 Barb.

574, 158

V. Gordon, 20 N. Y. 93, - 66

Merrill v. Bartlett, 6 Pick. 46, 70

V. Green, 55 N. Y. 370, 503,

504, 630, 880
V. Guthrie, 1 Pin. (Wis.)

435, - - - - 543

V. Williams, 17 Kan. 287, 614

Merriman v. Ward, 1 J. & H.

371, -,.-.. 489
Merritt v. Day, 38 N. J. L. 32

(20 Am. Rep. 362), - . - 705

V. Dickey, 38 Mich. 41, 293, 294,

300, 715

Merritt v. Pollys, 16 B. Mon.

355, - - 607, 694, 703, 700
V. Walsh, 32 N. Y. 685,

689, 70

Merriwether v. Hardeman, 51

Tex. 436, 785, 814, 852, 861, 961
Mershon v. Hobensack, 23 N.

J. L. 372, - 1050, 1154, 1156

Merwin v. Playford, 3 Robt.

702, 43

Meserve v. Andrews, 104 Mass.

360, 43

V. Andrews, 106 Mass.

419, - - 330, 231, 767, 815
Messer v. Messer, 59 N. H. 375, 281,

291
Messner v. Lewis, 20 Tex. 231, 193,

195
Metcalf V. Bruin, 13 East, 400

(afl. Metcalfe v. Bruin, 3

Camp. 432), - - - - 651

V. Fonts, 37 111. 110, - 887

V. Officer, 1 McCrary, 325;

3 Fed. Rep. 640, - 150, 152, 1155.

1156

V. Redmon, 43 III. 264, 78, 83

Metcalfe v. Rycroft, 6 M. & S.

75, .... 383, 1016

Metzner v. Baldwin, 11 Minn.

150, . - ... 78
Mexican Mill v. Yellow Jacket

Mine, 4 Nev. 40, . - 1018, 1065
Meyberg v. Steagall, 51 Tex.

351, 1109

Meyer v. Atkins, 39 La, Ann.

586, .... 523, 694

V. Krohn, 114 111. 574, 164, 168,

616
V. Schacher, 38 L. T. N. 8.

37, 78

V. Sharps, 5 Taunt. 74, - 358

Meyers v. Field, 37 Mo. 434, - 40
Meymot's Case, 1 Atk. 198, - 116
Meymottv. Meymott, 31 Beav.

445, 786

Michael v. Workman, 5 W.

Va. 391, - - 193, 195, 341, 370

Mlc]

TABLE OF CASES.

[Mil.

Michell, Ex parte, 14 Ves. 597, 383
Michigan Air Line R'y v.

Mellen, 44 Mich. 331, - 883, 439
Michigan Ins. Bank v. Eldred,

9 Wall. 544, - - - 883

Mick V. Howard, 1 Ind. 350, 194, 401
Mickle V. Peet, 43 Conn. 65, 849, 851
Middleditch v. Sharland, 5

Ves. 87, - - - - 964

Mifflin V. Smith, 17 S. & E.

165, - ' 303, 303, 316, 448, 445
Milburn v. Codd, 7 B. & C.

419, - . . . 854

Miles' Claim, L. E. 9 Ch. 685, - 489
Miles V. Ogden, 54 Wis. 578, 489,

495

V. Pennock, 50 N. H. 564, 847

V. Wann, 37 Minn. 56, 54, 1094

Milford V. Milford, McCl. &

Y. 150, . - - -
Millv. Sheibly, 68 Ga. 556,
Millar v. Craig, 6 Eeav. 433,

957
33
783,
964
Millaudon v. Sylvestre, 8 La.

363, 789

Millbank v. Eevett, 3 Mer. 405, 993
Miller's Appeal (Pa.), 7 Atl.

Rep. 190, - - 773

Miller v. Andres, 13 Ga. 866, 883

V. Bartlet, 15 S. & R. 137, 16, 48

V. Brigham, 50 Cal. 615, 158,

376, 577, 585, 756, 937

V. Chandler, 39 La. Ann.

88, - ... 43

V. Clarke, 87 Iowa, 335, - 835

r V. Consolidation Bank, 48

Pa. St. 514, - - 359, 873

V. Creditors, 87 La. Ann.

604, 106

- — V. Dow, 17 Vt. 335, - - 438

V. Estill, 5 Oh. St. 508, - 651,

560, 833, 833

V. Florer, 15 Oh. St. 148, 687,

1083

V. Harris, 9 Baxter, 101, - 944

V. Hlnes, 15 Ga. 197, 339, 344,

361, 863, 374

Miller v. HofiEman, 36 Mo. App.

199, - - - 780

V. House, 67 Iowa, 737, - 434

V. Howard, 36 N. J. Bq.

166, - - - 983, 985 '
V. Hughes, 1 A. K. Mar.

(K7.)181, - 44,333,83)

V. Jones, 89 III. 54, - 715, 739,

765, 933, 1001, 1008
V. Knauff, 3 Pa! L. J.

Eep. 11, ... 903

V. Lord, 11 Pick. 11, 785, 7815,

939
V. McClanachan, 1 Yeates

(Penn.), 144, .... 1168

V. Manice, 6 Hill,, 114, 848, 870,

445, 4^0

V. Marx, 65 Tex. 131, 186, 137,

18'J

V. Miller, 8 W. Va. 543, - 536,

694

V. Neimerick, 19 111. 173,. 7C0

V. Northern Bank, 84 Miss.

413, - - - . 456,.. 1051

V. Perrine, 1 Hun, 630, - 889

V. Price, SO Wis. 117, 83, 545,

790, 1039

V. Proctor, 30 Oh. St. 443, 184,

187, 391, 393, 2f95
V. Bay Circuit Judge, 41

Mich.'836, - - - - 1119
V. Richardson, 3 Ired. L.

350, ----- 347
V. Sims, 3 Hill (S. Ca.), L.

479, - - - - 145
V. Sullivan, 1 Cint. Su-
perior Ct. Eep. 371, - - 358
V. Talcott, 54 N. Y. 144

(aflg. 46 Barb. 171), - - 880
Miller's Eiver Nat'l Bank v.

Jeflferson, 138 Mass. Ill, 843, 884
Millerd v. Thorn, 56 N. Y. 402, 534,

106 r
Millett V. Holt, 60 Me. 169, - 63
Milliken v. Loring, 37 Me. 408, 6S7

V. Milliken, 8 Irish Bq. 16, 24 a

Mills, Ex parte, 8 Ch. D. 669, 5J

Mil.]

TABLE OF CASES.

[Moi.

MiUs, Re, 11 Bankr. Eeg. 74, - 628
V. Barber, 4 Day, 428, 401, 403,

406, 437
V. Bunce, 29 Mich. 364, - 447,

1073
V. Dickson, 6 Rich. (S.

Ca.)L. 487, - - - 377, 379
V. Fellows, 30 La. Ann.

(Part II), 824, - 762, 770
V. Fowkes, 5 Bing. N. C.

455, - - 489

T. Hanson, 8 Ves. 68, 971

V. Kerr, 32 Up. Can. C. P.

68, - - - - 450

Milmine v. Bass, 29 Fed, Rep.

632, - - - 341

Milne v. Bartlett, 3 Jur. 358, 581
Milner v. Cooper, 65 Iowa, 190, 729,

731, 999
Milton" V. Mosher, 7 Met. 244, 406,

407, 418
Minchin, Ex parte, 2 Gl. & J.

287, - - - - 835

Miner v. Downer, 19 Vt. 14, 196, 205

V. Downer, 20 Vt. 461, 195, 205,

1165

V. Lorman, 56 Mich. 212, 849

Minnet v. Whitney, 5 Bro. P.

C. 489, 325

Minock v. Shortridge, 21 Mich.

304, - 145

Minor v. Gaw, 11 Sm. & Mar.

(Miss.) 332, - - 410, 1038, 1046
Miser v. Trovinger, 7 Oh. St.

281, 287, - - - 398

Mitchel V. Read, 61 N. T. 123

(19 Am. Rep. 352), (reversing

61 Barb. 310) ; s. C. 84 N. Y.

556 (affirming 19 Hun, 518), 305
V. Reynolds, 1 Sm. Lead.

Cas. 508, - ... 676
Mitchell V. D'Armond, 30 La.

Ann. Part I, 396, - - - 453
V. Col man, 2 Jac. & Walk.

266, ... 988

V. Dall, 2 Har. &Gill, 159, 153,

153, 1032

Mitchell V. Dobson, 7 Ired. (N.
Ca.) Eq. 34, - 580, 881

V. Gieenwald, 43 Miss.

167, - - - 1085, 1103

V. O'Neale, 4 Nev. 504, - 2, 13

V. Read, 19 Hun. 418 (aflfd.

in 84 N. Y. 556), - 305, 663

V. Read, 84 N. Y. 556

(aff'g 19 Hun, 418), - 305, 761

V. Rich, 1 Ala. 228, 380, 1091

V. Sellman, 5 Md. 376, 410, 4U

V. Wells, 54 Mich. 127, 875, 881

V. Williams, 4 Hill, 13, - 389

Mitchum v. Bank of Ky. 9

Dana, 166, - 612, 618

Mittnight v. Smith, 17 N. J.

Eq. 259, - 824, 929, 1109

Mix V. Muzzy, 28 Conn. 186, 349,

357
V. Shattuck, 50 Vt. 421 (28

Am. Rep. 511), 453, 704, 705

Moale V. HoUins, 11 Gill & J.

11, - 156, 157, 443, 535

Mobley v. Lonbat, 7 How.
, (Miss.) 318, - - 1103

iModdewell v. Keever,' 8 Watts

& S. 68,' - - 583, 1169

jaode V. Penland, 93 N. Ca. 292, 471
Modisett v. Lindley, 2 Blackf.

119, - 416, 419

Moffat V. Farquharson, 2 Bro.

C. C. 338, - - - 269
V. McKissick, 8 Baxter,

517, - - - 195, 199, 303
Moffatt V. Thomson, 5 Rich. (S.

Ca.) Eq. 155 (57 Am. Dec. .

787), - 736, 738, 831, 917, 920
Mogford V. Courtenay, 45 L.

T. 303; 29 W. R. 864, - 666

Mohawk Nat. Bank v. Van

Slyck, 29 Hun, 188, - 36, 443
Mohawk & Hudson R. R. v.

Niles, 3 Hill (N. Y.), 163, 43, 66
Moies V. O'Neill, 33 N. J. Eq.

307, - - 593,999

Mbist's Adm'rs' Appeal, 74 Pa.

St. 166, - - - - 384, 680

MOL.]

TABLE OF CASES.

[Moo.

Molen V. Orr, 44 Ark. 486, - 1024,

1039
Moley V. Brine, 120 Mass. 334, 144,

181, 815
Moline Wagon Co. v. Rum-^

mell, 2 MIcCrary, 307 ; 13 Fed.

Rep. 658 ; 14 id. 155 (reversed

by Huiskamp v. Moline

Wagon Co. 121 U. S. 210), 105,
547, 559, 560, 561, 607
Moline Water Power & Mfg.

Co. V. Webster, 26 111. 233, 835,

838
Mollwo, March &|Co. v. The

Court of Wards, L. R. 4 P. C.

419, - - . 23, 47

Monroe v. Conner, 15 Me. 178

(33 Am. Dec. 148), - - 325

V. Greenhoe, 54 Mich. 9, 29

V. Hamilton, 47 Ala. 317, 919

V. Hamilton, 60 Ala. 236, 577,

585, 586
Biontague v. Hayes, 10 Gray,

609, ... 303, 781

V. Reakert, 6 Bush, 393, ■ 694

V. Weil, 30 La. Ann. 50, - 1091

Montgomery, Re, 3 Bankr.

Reg. 439, . - - 835

V. Boone, 3 B. Uoa. 244, 313,

414

V. Elliott, 6 Ala. 701, - 72

V. Montgomery, Rich. Eq.

Cas. (S. Ca.) 64, - - 949, 950

V. Sprankle, 31 Ind. 113, 139

Montjoys v. Holden, Litt. Sel.

Cas. 447 (13 Am. Dec. 331), 375,
376, 403,
Montefiori v. Lloyd, 15 C. B.

N. S'.SOS. - - - - 655
Montross v. Mabie, 30 Fed.

Rep. 234, - ... 265
Montz V, -Morris, 89 Pa. St.

393, 1080

Moody V. Downs, 63 N. H. 50, 733

V. King, 3 B. & C. 558, 533, 846

V. Payne, 3 Johns. Ch.

648, - - - 1109

Moody V. Rathburn, 7 Minn. 89, 357,
386, 583, 585

V. Thomas, 1 Disney, 294, 664

Mooe V. Story, 8 Dana, 236, 788,
978, 983, 987
Moorv. Boyd, 15 Up. Can. C.
P. 513 (doubted in s. C. 33
Up. Can. Q. B. 459), - 416, 419
Moore's Appeal, 34 Pa. St. 411, 749
Moore, Ex parte, 3 Gl. & J.

166, . - . . 760,845

V. Ayres, 5 Sm. & Mar.

310, .... 194
V. Bare, 11 Iowa, 198, - 181

V. Brink, 4 Hun, 403; 6

N. Y. Supreme Ct. 33, 73, 750

V. Burns, 60 Ala. 269, - 1018

V. Curry, 106 Mass. 409, 59, 70

V. Davis, 11 Ch. D. 261, 17, 26,

38

V. Gano, 12 Oh. 300, 395, 901

V. Huntington, 7 Hun, 425, 43,

257

V. Huntington, 17 Wall.

417, ... - 931

V. Knott, 13 Oregon, 360, 435,

544, 586

V. Knott, 14 Oregon, 35, '- 518

V. Lackman, 53 Mo. 823, - 523,

536, 637, 694

V. Otis, 30 Mo. 153, - - 1119

V. Penhell, 53 Me. 163, - 1105,

1108

V. Riddell, 11 Grant's Ch.

(Up. Can.) 69, - ,- - 490

T. Sample, 3 Ala. 319, - 1105,

1109

V. Smith, 19 Ala. 774, 43, 61

V. Stevens, 60 Miss. 809, - 331,

418, 438, 451

V. Trieber, 31 Ark. 113, - 215

V. Walton, 9 Bankr. Reg.

402, - - 23, 47, 88

V. Wheeler, 10 W. Va. 35, 810,

813, 957, 971
Moorehead v. Adams (Neb.),
26 N. W. Rep. 342, - - 563

Moo.]

TABLE OF CASES.

[MOE.

Moorehead v. Gil more, 77 Pa.

St. 118 (18 Am. Rep. 435), - 341,
353, 355, 35,8, 372
Mooreman v. Graflenread, 2

Mill (S. Ca.), 195, - - - 1164
Moran v. Le Blanc, 6 La. Ann.

113, - - . - 866

V. Palmer, 18 Mich. 367, 283,

292, 299

V. Prather, 23 Wall. 492, 365

Morans v. Armstrong, Arms.

M. & O. Irish N. P. Rep. S5, 315
Moravia v.Levy, 2 T. R. 483, n., 858
More V. Bonnet, 40 Cal. 251, - 676

V. Rand, 60 N. T. 208, 595, 897

Moreau v. Saffarans, 3 Sneed,

595, - - - 293, 296

Morehead v. Wriston, 73 N. Ca.

398, - - - 503, 510, 511
Moreton v. Hardern, 4 B. & C.

223; 6 Dow. & Ry. 275,
Morey v. Grant, 48 Mich. 826,

Morgan V. Adams, 37 Vt. 233,
V. Marquis, 9 Exch. 145, •

462
995,
1005
964,
967
583,
610, 755

V. Morgan, 68 Ala. 80, 741

V. Nunes, 54 Miss. 308, - 874

V. Olvey, 53 lad. 6, 281, 283, 285

V. Pierce, 59 Miss. 210, 374

V. Richardson, 16 Mo. 409

(57 Am. Dec. 235), - - 377,380

V. Schuyler, 79 N. T. 490

(35 Am. Rep. 543), - C68, 671

V. Scott, Minor (Ala.), 81

(12 Am. Dec. 35), - - - 422

V. Skidmore, 55 Barb. 263, 471

V. Stearns, 41 Vt. 398, - 29

V. Tarbell, 28 Vt. 498, 499, 501

Morganstern v. Thrift, 66 Cal.

577, - - - - 274

Moriarty v. Bailey, 46 Conn.

592, - - . - 1047, 1048
MoriQ V. Martin, 25 Mo. 360, - 853
Morison v. Moat, 9 Hare, 241, 258,

261, 669

Moritz V. Peebles, 4 E. D.

Smith, 135, - - - 793, 889
Morley, Ex parte, L. R. 8 Ch.

App. 1036, - - - 253, 563

V. Newman, 5 D. & R. 317, 334

Morrell v. Trenton Mut. L. &

F. Ins. Co. 10 Cush. 282 (57

Am. Dec. 92), - - 457

Morrill v. Sanford, 49 Me. 566, 179

V. Spurr, 143 Mass. 257, 88

Morris v. Allen, 14 N. J. Eq.

44, - . - - 76'3, 785

V. Barrett, 3 T. & J. 384, 265

V. Colman, 18 Ves. 437, - 988

V. Harrison, Colles, 157, 954

V. Hillery, 7 How. (Miss.)

61, - - - - 900, 902

V. Husson, 4 Sandf . 93, - 400

V. Jones, 4 Harr. (Del.)

428, . - - 420, 421
V. Litchfield, 14 HI. App.

83, - .... 64

V. Marqueze, 74 Ga. 86, 347,

507, 510, 514, 515

V. Morris, 4 Gratt. 293, 569,

786, 835, 841, 845

V. Moss, 25 L. J. Ch. 194, 659

V. Peckham, 51 Conn. 138, 208,

573, 1011, 1013
Morris Run Coal Co. v. Barclay

Coal Co. 68 Pa. St. 173, - 113
Morrissey v. Schindler, 18 Neb.

672, - ... 1094

Morrison's Appeal, 93 Pa. St.

326, ... 507

Morrison v. Blodgett, 8 N. H.

238 (29 Am. Dec. 653), - 510, 515,
1105,1106, 1111, 1113

V. Cole, 30 Mich. 103, - 41, 43

V. Kramer, 58 Ind. 38, 761, 780

V. Mendenhall, IS Minn.

232, - - -. 283, 293

V. Perry, 11 Hun, 33, 534, 607,

694

V. Smith, 81 HI. 231, - 763

V. StockweU, 9 Dana, 173, 882

V. "Winn , Hardin (Ky.), 480, 733

MOE.]

TABLE OF CASES.

[MUN.

Morrow v. Riley, 15 Ala. 710, 849,

860
Morse, Re, 13 Bankr. Reg. 376, 825
V. Bellows, 7 N. H. 549

(28 Am. Dec. 372), 381, 415, 681,

687, 690, 1035

— - V. Carpenter, 19 Vt. 613, - 296

V. Chase, 4 Watts, 456, 1022

V. Gleason, 64 N. Y. 204

(aff. 2 Hun, 31 ; 4 Thomp. &

C. 274), - - - 632, 570
V. Green, 13 N. H. 32 (38

Am. Dec. 471), - - - 543
V. Hagenah (Wis.), 32 N.

W. Rep. 634, - 321, 370

V. Hall, 109 Mass. 409, 198, 671

V. Hutchins, 102 Mass. 439, 897

V. Richmond, 97 111. 303

(a£Eg. 6 111. App. 166), 26, 204, 299,
406, 438, 441, 444, 445
V. Richmond, 6 111. App.

166 (afifd. 97 111. 303), . 299, 406

Mortley v. Flanagan, 38 Oh.

St. 401, - - - 560, 1133

Morton v. Ostrom, 33 Barb.

256, - - - - 261, 263
Moseley v. Ames, 5 Allen, 163, 341
Mosely v. Garrett, 1 J. J. Mar.

(Ky.)212, - - - 183

Moses V. Bagley, 55 Ga. 283, - 709

V. Moses, 50 Ga. 9, - 743, 745

Mosgrove v. Golden, 101 Pa.

St. 605, - - - - -
Moss V. Jerome, 10 Bosw. 220,

V. McCall, 75 111. 190,

V. Riddle, 5 Cranch, 351, -

Mossop V. Mason, 18 Grant's

Ch. (Up. Can.) 453 (affg. 16

id. 302, arid 17 id. 360), 664, 669
Mosteller v. Bost, 7 Ired.

Ca.) Eq. 39, - - -
Motley V. Jones, 3 Ired.

144, . - -
Moulston V. Wire, 1 Dow. & L.

527, - - - - 1085

Mount V. Chapman, 9 Cal.

294, 858

1024

57

786

375

(N.

823, 829
Eq.

44

Mt. Pleasant Branch of State

Bank v. McLeran, 26 Iowa,

206, - - - 397

Mountstephen v. Brooke, 1 B.

& Aid. 214, - ... 724
Mourain v. Delamre, 4 La.

Ann. 78, - - 787,789,955

Mousseau v. Thebens, 19 La.

Ann. 516, - - - 78, 79, 507
Mowatt V. Howland, 3 Day,

353, 618

Mowbray v. Lawrence, 13 Abb.

Pr. 317; 22 How. Pr. 107, - 1109
Moynahan v. Hanaford, 42

Mich. 329, - - 349, 358

Mudd V. Bast, 34 Mo. 465, .570, 1018
Mudge V. Parker, 139 Mass. 153, 605
Mueller v. Wiebracht, 47 Mo.

468, - - - - 510

Muir V. Leitch, 7 Barb. 341, - 825
Mulhall V. Cheatham, 1 Mo.

App. 476, - - 17, 28, 849

Mulholland v. Rapp, 50 Mo." 43, 922
Mullany v. Keenan, 10 Iowa,

224, 869

MuUendore v. Scott, 45 Ind.

113, . . . -' 636, 879
Mum ford v. Murray, 6 Johns.

Ch. 1, - ... 766
V. NicoU, 4 Johns. Ch. 522

(rev. in part in 20 Johns. 611), 917
V. Nicoll, 20 Johns. 611

(reversing s. 0. 4 Johns. Ch.

523), - - 70, 821, 917

Munn, In re, 3 Biss. 442, 107, 156,

196, 443
Munroe v. Cooper, 5 Pick. 412, 362
Munson v. Hall, 10 Grant's Ch.

(Up. Can.) 61, ... 47

V. Sears, 12 Iowa, 162, - 63

V. Wickwire, 21 Conn.

513, - - - 330, 331, 701
Munster v. Cox, 11 Q. B. D.435

(affd. 10 App. Cas. 680), - 1060
V. Cox, L. R. 10 App. Cas.

680 (aff. 11 Q. B. D. 435), 1060,
1062, 1088

MUB.]

TABLE OF CASES.

[Nal.

Murchison v. Warren, 50 Tex.
37, 643

Murdbck v. Martin, 20 Miss.

(13 Sm. & M.) 661, - - 861

V. Mehlhop, 26 Iowa, 213, 629,

630
Murphy v. . Abrams, 50 Ala.

393, - - - 294, 800

V. Camden, 18 Mo. 116, 353

V. Crafts, 13 La. Ann. 519, 761,

763

V. Whitlow, 1 Ariz. 340, 1154

V. Yeomans, 39 Up. Can.

C. P. 421, - - - 686, 687
Murray v. Bogart,' 14 Johns.

318 (7 Am. Dec. 466), - 164, 165,
853, 858
V. Elston, 24 N. J. Eq. 310

(affd. id. 589), - - - 958
— — v. Johnson, 1 Head (Tenn.),

353, 780

V. Mumford, 6 Cow. 441

(rev. Anthon's N. P. 294), 685, 718,
715, 723
V. Murray, 5 Johns. Ch.

60, - . - 753, 754, 1026
V. Pinkett, 12 CI. & Fin.

764 (s. C. as Pinkett v.

Wright, 2 Hare, 120), - - 187

V. Somerville, 3 Camp. 99, 439

v. Stevens, Rich. Eq. Cas.

(S. Ca.) 205, - .- - 61

Murrell v. Murrell, 33 La. Ann.

1233, - - - 13, 384, 792
Murrett v. Murphy, 11 Bankr.

Reg. 131, - - - - 397
Murrill v. Neill, 8 How. (U. S.)

414, - - 569, 825, 830, 833

Murtagh v. Costello/ 7 Irish L.

R. 428, - - - - 297

Muse V. Donelson, 2 Humph.

(Tenn.) 166 (36 Am. Deo.

309), - - - 704

Musier v. Trumpbour, 5 Wend.

274, - 61, 67, 865

Musselman's Appeal, 63 Pa, St.

81, . - - 659, 661

Musser v. Brink, 68 Mo. 343;

80 id, 350, - - 39, 37, 61

Mussey v. Holt, 4 Foster (34 N.

H.), 348 (55 Am. Dec. 234), 399,

401
637

583

Musson V. May, 8 Ves. & B,

194,

Mut. Ben. L. Ins. Co. v. Hill-

yard, 37 N. J. L. 444, -
Mutual L. Ins, Co. v. Sturges,

33 N. J. Eq. 328 (rev. 33 id. '

678), .... 718

Mutual Nat'l Bank v. Richard-
son, 33 La. Ann. 1312, - 362
Mut. Sav. Institution v. Enslin,

37 Mo. 453, - - 690, 713, 731
Muzzy V. .Whitney, 10 [Johns.

336, - - - - 41, 43, 47
Myatts V. Bell, 41 Ala. 322, 349, 526

695, 704
Mycook V. Beatson, IS Ch. D.

384, - - - 595, 805, 808
Myers v. Bennett, 8 Lea

(Tenn.), 184, - - 810, 978

V. Edge, 7 T. R. 254, - 649

V. Gilbert, IS Ala. 467, 462

V. Huggins, 1 Strob. L. 473, 695

V. Kalamazoo Buggy Co.

54 Mich. 315, - - 669, 674
V. Moulton (Cal.), 13 Pac.

Rep. 505, .... 404

V. Smith,, 15 Iowa, 181, - 635

V. Smith, 29 Oh. St. 120, 1103,

1113
-T— V. Standart, 11 Oh. St. 29, 696,

700, 701

V. Winn, 16 111. 135, 543, 865

Mygatt V, McClure, 1 Head

(Tenn.), 495, . - . 339, 403
Mynderse v. Snook, 53 Barb.

234; 1 Lans. 488, 1017, 1031

Myrick v. Dame, 9 Cush. 248, 853,

1035, 1087

N.

Naglee v. Minturn, 8 Cal. 540, 935
Nail V. Mclntyre, 31 Ala. 332, 1040

Nal.]

Nalle V. Gates, 30 Tex. 315, -
Nance v. Pope, 1 Stew. (Ala.)

230 (id. 854), - . - - 537
Nanson v. Gordon, 1 App. Gas.

195 (a£Ed. 10 Oh. App. 160), 836,

844
Napier v. Catron, 3 Humph.

534, - - - 393, 416

V. McLeod, 9 Wend. 130, 181,

684
Napoleon v. State, 3 Tex. App.

533, - - '83, 377.

Nash V. Bropby, 13 Met. 476, 1135
Nashville & Chat. E. R. v.

Sprayberry, 9 Heisk. 853, - 66
Nason, Ex -parte, 70 Me. 363, 453,

841
National Bank v. Bank of Com-
merce, 94 III. 371, 835, 841, 880

. V. Gushing, 53 Vt. 331, 843

v. Ingraham^ 58 Barb. 390, 348,

443

V. Mapes, 85 111. 67, - - 543

V. Norton, 1 Hill, 573, 607, 6J3,

635, 694, 695
: V. Spragup, 30 N. J. Eq.

13 (reversed in part, 31 id.

630), 138, 381, 535, 565, 566, 568,

1130

V. Thomas, 47 N. Y. 15, 439,

446
National Bk. of Bait. v.

Sackett, 3 Daly, 395, - - 340
Natl. Bk. of Commonwealth

V. Law, 137 Mass. 73, - . 349, 358
V. Temple, 39 How. Pr.

433, - , - - - 468, 1130
Natl. Bk. of Newburg v. Big-

ler, 83 N. Y. 51 (aff. 18 Hun,

400), - - - - 603, 655
National Security Bank v.

McDonald, 137 Mass. 83, 358, 863
Nat'l IJnion Bk. v. Landon, 66

Barb. 189 (affd. in part, 45

N. Y. 410), - - - 333, 861
National Bk. of Watertown v.

Landon, 45 N. Y. 410, - 4, 5, 7

TABLE OP CASES.
700

[New.

National Ins. Co. v. Bowman,

60 Mo. 253, ... - 1068
Nat'l Shoe & Leather Bk. v.

Herz, 89 N. Y. 639, ' - - 616
Natusch v. Irving, 3 Cooper's

Oh. temp. Cottenham, 358, 434,
435, 988
Nave V. Sturges, 5 Mo. App.

557, - - 55, 598, 603

Naylor v. Sidener, 106 Ind. 179, 994,

998
Neale v. Turton, 4 Bing. 149, 880,

883
Near v. Lowe, 49 Mich. 483, - 933,

950
Nebraska E. E. Co. v. Colt, 8
' Neb. 351, - - 457

Neel v. Keel, 4 T. B. Men. 163, 899
Neely v. Morris, 3 Head, 595, 1067
Negus, Ex parte, 7 Wend. 499, 636
Nehrboss v. Bliss, 88 N. Y. 600, 714,

733, 746
>Neil V. Greenleaf, 26 Oh. St.

567, - 850, 893, 956

Neilson v. Mossend Iron Co.

L. E. 11 App. Cas. 398, - 318

Nelson v. Hayner, 66 111. 487, 744

V. Healey, 63 Ind. 194, - 453

V. Hill, 5 How. 137, - - 749

V. Lloyd, 9 Watts, 33, - 1095,

1151

V. Neely, 63 Ind. 194, - 200

V. Tenney, 36 Hun, 327, 726,

732

V. Wheelock, 46 111. 35, - 406

Nerot V. Bernand, 4 Euss. 247 ;

2 Bli. N. S. 315, - - 794

Neudecker v. Kohlberg, 3

Daly, 407, - 810, 813, 813

Nevins v. Townsend, 6 Conn.

5, - - , - - ,- 883, 884
New V. Wright, 44 Miss. 303, 988,

993
Newberger v, Fields, 33 Mo.

App. 631, - - 39, 37, 357

Newbigging v. Adam, 34 Ch.

D. 583, - - 595,805,897

cxxxui

New.]

TABLE OF CASES.

[NIC,

Newbrau v. Snider, 1 "W. Va.

153, - - 35, 258, 259, 849
Newcomet v. Brotzman, 69

Pa. St. 185, - . - - 633
•Newell V. Desmond, 63 Cal.

243, .... 547

V. Humphrey, 37 Vt. 265, 766,

773, 795, 933

V. Smith, 23 Ga. 170, 328, 344

V. Townsend, 6 Sim. 419, 720

Newen v. Wetten, 31 Beav.

315, - - - - 957,967
Newhall v. Buckingham, 14

111. 405, - 340, 938, 1105, 1109, 1111
New Haven Co. Bk. v. Mitch-
ell, 15 Conn. 206, 389, 653, 698, 708
Newland v. Champion, I Ves.

Sr. 105, 7 - - 935
V. Tate, 3 Ired. Eq. (N.

Ca.) 336, 164, 166, 168, 776

Newley v. Oregon Co. 1 Deady,

609, - 674

Newling v. Dobell, 38 L. J. Ch.

Ill; 19L.T. 408, - - 677

Newlon v. Heaton, 43 Iowa,

593, - - 173, 1059, 1091, 1093
Newman v. Bagl'ey, 16 Pick.

570, . . - 569

V. Bean, 21 N. H. 93, 43, 1106

V. McCoraas, 43 Md. 10, 703

V. Morris, 53 Miss. 403, 136, 137

V. Eichardson, 4 Woods,

C. 0. 81 ; 9 Fed. Rep. 868, - 347
V. Springfield F. &M. Ins.

Co. 17 Minn. 133, - - 333

Newmarch v. Clay, 14 East,

389, 497, 608

New Market Bank v., Locke,

89Ind. 438, - - 825

Newsome v. Coles, 3 Camp.

617, - 97, 100, 609

Newsom v. McLendon, 6 Ga.

37, - - - - 848

Newton v. Doran, 3 Grant's

Ch. (Up. Can.) 853, 383, 301, 591
V. Doran, 1 Grant's Ch.

CUp. Can.) 590, ... 591

N. Y. & Ala. Contracting Co.

V. Meyer, 51 Ala. 335, - - 399
V. Selma Sav. Bk. 51 Ala.

§05 (33 Am. Eep. 553), - - 400
N. T. Dry Dock Co. v. Tread-
well, 19 Wend. 525, - - 1053
N. Y. Firemen's Ins. Co. v.

Bennett, 5 Conn. 574 (13 Am.

Deo. 109), 338, 349, 354, 363

New York Iron Mine v. Ne-

gaunee, 39 Mich. 644, - - 4
New York & Sharon Canal Co.

V. Fulton Bank, 7 Wend. 412,

414, - - - 188

Niagara Co. Nat'l Bk. v. Lord,

38 Hun. 557, - - - 188

Nichels v. Mooring, 16 Fla. 760, 681,

958
Nichol V. Stewart, 36 Aik. 612, 326,

330, 254, 276, 374, 766, 780, 831, 834,
917, 937
Nicholaus v. Thielges, 50 Wis.

491, - 43, 1150

NichoUs V. Diamond, 9 Exch.

154, 349, 441

V. Dowding, 1 Stark. 81, 331

Nichols V. Anguera, 2 Miles

(Pa.), 290, - - - 535

V. Cheairs, 4 Sneed, 229, 332,

333, 533, 534, 535, 537
V. English, 3 Brewster

(Pa.), 260, - 446, 448
V. Hughes, 2 Bail. (S. Ca.)

L. 109, - - 318

V. James, 130 Mass. 589, 109

V. Prince, 8 Allen, 404, - 635,

638", 643

V. Sober, 38 Mich. 678, 833, 354

V. White, 85 N. Y. 531, 700, 1151

Nicholson v. Janeway, 16 N.

J. Eq. 385, - - 309, 958

V. Moog, 65 Ala. 471, 96, 612,

618

V. Eicketts, 3 E. & E. 524, 154,

439

Nicklaus v. Dahn, 63 Ind. 87, 723,

734, 1170

Nio.]

TABLE OF CASES,
585

[Not.

Nicklaus V. Roach, 3 Ind. 78, -
NicoU V. Mumford, 4 Johns.

Ch. 533; 30 Johns. 611, - 825
Niday v. Harvey, 9 Gratt. 454, 420,

422
Niehoff V. Dudley, 40 III. 406, 23, 47,

48
Nightingale V. ChafEee, 11 R. I.

639 (23 Am. Rep. 531), 537

V. Scannell, 6 Cal. 506, 1027,

1162
Niles V. Williams, 24 Conn.

373, - - 907

Ninis, Re, 16 Blatchf. 439 (re-

versipg S. C. 18 Bankr. Reg.

91, 10 Ben. 53), - - 839
V. Bigelow, 44 N. H.

376, - - _ - - 858

V. Nims, 20 Fla. 204, 966

V. Nims (Fla. 1887', 1

South. Rep. 537, 813, 917, 936, 966
Nisbejt V. Nash, 53 Cal. 540,' 163, 910

V. Patton, 4 Rawle, 130

(26 Am. Dec. 133), - 389, 474

Niven v. Spickerman, 13

Johns. 401, 72, 849, 1024, 1038

Nixon V. Downey, 43 Iowa, 78, 1087

v.' Nash, 12 Oh. St. 647, - • 584,

928, 1101, 1105, 1109, 1111
Noakes v. Baiiow, 26 L. T. N.

S. 36, - - - - 39

Noble V. McClintock, 3 Watts •»

&S. 152, ^ - - - - 847

V. Metcalf, 20 Mo. App.

860, - ... 430

Noel V. Bowman, 3 Litt. (Ky.)
46, - - - - 780

Nolan V. Lovelock, 1 Mon-
tana, 234, 333, 335, 334, 431, 433

Noon an v. MoNab, 30 Wis.
277, .... 343

V. Orton, 31 Wis. 365, 248,383,

1037

V. Orton, 83 Wis. 106, - 1033

Norcross, -Matter of, 1 N. Y.
Leg. Qbs. 100, - - 583

V, Clark, 15 Me. 80, - - 1072

Norfolk, Ex parte, 19 Ves. 455, 155,

840
Norman v. Conn, 20 Kan. 159, 813

V. Huddleston, 64 111. 11, 639

V. Norman, 3 Yeates

(Penn.), 154, - - - 1169

Norment v, Hull, 1 Humph.

330, - - - - 43

Norris v. Howard, 41 Iowa,

508, - - 667
V. McCanna, 39 Fed. Rep.

757, - - 138

V. Rogers, 107 III. 148, - 796

V. Vernon, 8 Rich. L. 13, 190

North V. Bloss, 30 N. Y. 374, 150,
153, 1052

V. Mudge, 13 Iowa, 598, 377,

379, 535
North Pennsylvania Coal Co.'s

Appeal, 45 Pa. St. 181, - 438

North River Bank v. Stewart,

4Bradf. (N. Y.)2o4; 4 Abb.

Pr. 408, 825, 833

Northern Bank of Ky. v.

Keizer, 3 Duv. 169, - 827, 884
Northern Ins. Co. v. Potter, 63

Cal. 157, 386, 887

Northern R'y Co. v. Patton, 15

Up. Can. C. P, 332, - 43

Northup V. McGill, 27 Mich.

334, - - 181, 553

Northrup v. Phillips, 99 111.

449, - 115, 131, 138, 261

Norton -v. Richards, 13 Gray,

15, , - - - - 534

— ^ v. Seymour, 3 C. B. 793,

16 L. J. C. P. 100; 11 Jur.

313, - ■ 200, 453, 1147

-^ v. Thacher, 8 Neb. 186, 199;

' 436, 1068

Norway v. Rowe, 19 Ves. 144, 314,

99'3, 1003

Norwich Yarn, Co., In re, 33

Beav, 148, - - - 785

Nott V. Douming, 6 L^. 680, 612,

694
V. Douming, 10 La. 546, - 398

Not.]

TABLE OF CASES.

[Ond.

Nottidge V. Prichard, 2 CI. &

F. 379 (aflf. 8 Bli. N. E. 493), 383,

681
Nowell V. Nowell, L. R. 7 Eq.

588, .-..-. 813
Noyes v. Crawley, 10 Ch. D.

31, .... 943

V. Cushtnan, 25 Vt. 390, 64,

81, llSl, 1154
V. New Haven, etc. R. R.

30 Conn. 1, - 325, 326, 381, 382

V. Sawyer, 3 Vt. 160, - 1016

Nugent V. Locke, 4 Cal. 318, - 70
Nunnely v. Doherty, 1 Yerg.

(Tenn.), 26, - -• 414, 420

Nussbaumer v. Becker, 87 111.

281 (29' Am. Rep. 58), , - - 608
Nutt V. Hunt, 4 Sm. & Mar.

(Miss.) 702, - 399, 456, 1051, 1068
Nutting V. Ashcraf C, 101 Mass.

300, .... -256, 825
V. Colt, 7 N. J. Eq. 539. 43, 103

o.

Oakey v. Rabb, 1 Freem. (Miss.)

Ch. 548, - - - 825, 832

Oakf ord v. European and Am.

Steam Shipping Co. 1 Hen.

& Mil. 182, - 588, 709

Oakeley v. Pasheller, 4 Clark

& Fin. 207; 10 Bligh. N. E.

548, - - - 520, 533

Oakley v. Aspinwall, 2 Sandf.

7, - - - - 332

Oakman v. Dorchester Mut. F.

Ins. Co. 98 Mass. 57, - - 722
Ober V. Indianapolis & St. L.

R. R. 13 Mo. App. 81, 685, 713

O'Brien v. Cook, Irish L. R.

5 Eq. 51, ... 990

v.-Hanley, 86 111. 278, - 978

O'Bryan v. Gibbons, 2 Md. Ch.

9, - - - - . ^83, 999

O'Conner v. Stark, 2 Cal. 153, 972
O'Connor v. Naughton, 13

Grant's Ch. (Up. Can.) 428, - 309

Odiorne v. Bacon, 6 Cush. 185, 1032

V. Maxcy, 15 Mass. 39, 331, 349,

424

V. Woodman, 39 N. H. 541, 850

O'Donnell v. Battle House Co.

67 Ala. 90 (42 Am. Rep. 99), 59

Oflfutt V. Scott, 47 Ala. 104, 281, 284,

295, 297, '588, 707, 724

Ogden V. Arnot, 29 Hun, 146, 583,

754, 755, 931

V. Astor, 4 Sandf. 311, 743, 794,

799
Ogdensburgh R. R. v. Frost,

21 Barb. 541, .... 316
Ogilby, Ex parte, 3 Ves. & B.

133; 2 Rose, 177, - - '- 845
Ogle, Ex parte, Mont. 350, - 835
O'Gorman v. Fink, 57 Wis. 649

(46 Am. Rep. 58), - - - 1131
Olcott V. Wing, 4 McLean, 15, 815,

974
Oliphant v. Mathew^s, 16 Barb.

608, - - . 443

Oliver v. Forrester, 96 111. 315, 707,

711, 728, 729, 730

v. Gray, 4 Ark. 425, 17, 57, 63

V. Hamilton, 2 Anstr.

453, .- - 998
V. Liverpool & London L.

& F. Ins. Co. 100 Mass. 531, 176

v. Lynn, 1303Iass. 143, - 176

Olleman v. Reagan, 28 Ind.

109, - 736, 832, 845

Olmstead v. Hill, 2 Arkr 346, - 43

V. Webster, 8 N. Y. 418, 585,

536
Olmsted v. Hotailing, 1 Hill,

317, - - - 480

O'Lone v. O'Looe, 2 Grant's

Ch. (Up. Can.) 125, 245, 779, 788
917, 918, 987
Olson V. Morrison, 29 Mich.

395, - 551, 686, 637

O'Mealey v. Wilson, 1 Camp.

482, - - - 110

Onderdonk v. Hutchinson, 6

N. J. Eq. 632 (rev. id. 277), - 767

O'Ne.]

TABLE OF OASES.

[Pah.

O'Neil V. Salmon, 25 How. Pr.

246, .... 560, 569
O'Neill V. Brown, 61 Tex. 34, - 851

V. Duff, U Phila. 244, - 774

Onondago Co. Bank v. De

Puy, 17 Wend. 47, - 348, 370
Ontario Bank v. Hennessey, 48

N. Y. 545, - - 191, 445

Ontario Salt Co. v. Merchants'

Salt Co. 18 Grant's Ch. (Up.

Can.) 540, - - - 86, 134
Cppenheimer v. Clemmons, 18

Fed. Rep. 886, - - - 43, 49
Oran v. Rothermel, 98 Pa. St.

300, - - - - 719

Ord V. Portal, 3 Camp. 239, - 1067
Oregon Steam Nav. Go. v,

Winsor, 20 Wall. 64, - 676

O'Reilly v. Brady, 28 Ala. 536, 769,

773, 970
Ormsbee v. Davis, 5 R. I. 442, 338,
339, 991, 996
Orr V. How, 55 Mo. 328, - - 296
Orrick v. Vahey, 49 Mo. 428, - 733
Osborn v. McBrlde, 3 Sawy.

590; 16 Bankr. Reg. 22, 189, 1109

V. Osborn, 36 Mich. 48, - 141,

384, 504, 510, 511
Osborne v. Barge, 29 Fed, Rep.

725, 339, 403, 405, 406
V. Brennan, 2 Nott & McC.

427; (10 Am. Dec. 614), 1149

V. Harper, 5 East, 225, 895, 896

V. Stone, 30 Mino. 25, 349,

362, 369
—. — V. Thompson, 35 Minn.

229, - - 349

Osbrey v. Reimer, 51 N. Y. 630

(affg. 49 Barb. 265), 29, 43, 47, 922
Osburn v. Farr, 42 Mich. 134, - 148
Osment v. MoElratb, 68 Cal.

466, - 771, 773,791

Ostrom V. Jacobs, 9 Met. (Mass.)

454, 199, 439, 448, 700, 1152

Otis V. Adams, 41 Me. 25.8, - 393,

1083
Ovsns V. Bull, 1 Ont. App, 62, 1106

Over V. Hetherington, 66 Ind.

365, 629

Overholt's Appeal, 13 Pa. St.

222, 51 Am. Dec. 598, - - 292,

1114
Overton v. Tozer, 7 Watts, 331, 378
Owen, Ex parte, 4 De G. &

Sm. 351, - - - 262, 263

, Ex parte, 13 Q. B. D. 113, 754,

1026
V. Van Uster, 20 L. J.- C.

P. 61 ; 10 C. B. 318, - 349, 441
Owens V. Davis, 15 La. Ann.

22, - - - - 70

V. Maokall, 33 Md. 382, - 52, 54

V. Miller, 29 Md. 144, - 544

Owings V. Low, 5 Gill & J.

134, - - 700

V. Trotter, 1 Bibb, 157, - 383

Owston V. Ogle, 13 East, 538, - 886
Ozeas V. Johnson, 4 Dall. 434

(S. C. below, 1 Bin. 191), 735, 849,
862, 865

P.

Packer v. Noble, 103 Pa. St,

188, 1171

Packing Provision Co. v. Cas-
ing Co. 34 Kan. 340, - - 1065
Page V. Brant, 18 111. 37, 625, 1049,
1050, 1052

r. Carpenter, 10 N. H. 77, 453,

453a, 547, 1106
- — V. Cox, 10 Hare, 168, , 51, ai9,

249, 602

V. Morse, 138 Mass. 99, - 144

V. Thomas, 43 Oh. St. 38, 185,

281, 291

V. Vankirk, 6 Phila. 264;

S. C. 1 Brews. 282, - - 233, 234

V. Wolcott, 15 Gray, 536, 707,

710
Paige V. Paige (Iowa), 32 N. W.

Rep. 300, - - 290

Pahlman v. Graves, 26 111. 405, 825,

8b2

CXXXVll

Pah.]

TABLE OF CASES.

[Pae,

Pahlman v. Taylor, 75 111. 629, 319,

.341, 364, 370, 453, 453

Paine v. Dwinel, 53 Me. 53, - 439

V. Moore, 6 Ala. 129, - 868

V. Paine. 15 Gray, 299, - 968

V. Thacher, 35 Wend. 450, 770,

775. 854, 885
Painter v. Painter, 68 Cal. 395, 630,

785
Palmer v. Bagg, 56 N. Y. 523, 655
■ V. Dodge, 4 Oh. St. 21 (62

Am. Dec. 271), 618, 693, 695

Y. Elliot, 1 Cliflf. 63, - 445

V. Mitchell, 2 Myl. & K.

672, - - 485, 605
V. Meyers, 43 Barb. 509 ;

29 How. Pr. 8, - - 338, 340

V. Pinkham, 37 Me. 353, 91

V. Purdy, 83 N. Y. 144, - 534

V. Sawyer, 114 Mass. 1, - 709

V. Scott, 68 Ala. 380, 338, 341,

483, 1073

— — V. Stephens, 1 Den. 471, 193,

199, 303, 444

V. Tyler, 15 Minn. 106, 86, 822,

932
Pannell v. Phillips, 55 Ga. 618, 441
Paradise v. Gerson, 33 La. Ann.

533, .... 365

Parch en. V. Anderson, 5 Mon-
tana, 438, - - 23, 47, 64
Pardee v. Haynes, 10 Wend.

631, - - - -. 380, 1086
Pardridge v. Ryan, 14 lU. App.

598, ... . 1135

Parham Sewing Mach. Co. v.

Brock, 113 Mass. 194, 536, 655, 694
Pariente v. Lubbock, 8 De G.
■ M. & G. 5, - 651

Paris, etc. Road Co. v. Weeks,

11 Up. Can, Q. B. 56, - - 67
Parish y. Lewis, 1 Freem.

(Miss.) Ch. 299, 559, 560, 824

Parker, Ex parte, 3 M. D. & D.

511, - - 503, 511, 516
, Succession of, 17 La.

Ann. 38, - - 943

Parker v. Bowles, 57 N. H. 491, 383,

395, 301

V. Burgess, 5 R. L 377, 353, 355

V. Canfield, 37 Conn. 350

(9 Am. Rep. 317), 30, 47, 49, 156,
157, 607
V. Cousins, 2 Gratt. 373

(44 Am. Dec. 388), - 526, 695

V. Danforth, 16 Mass. 399, 1035,

1086, 1137, 1138

V. Fergus, 43 111. 437, 43, 45,

46, 99
V. Gossage, 3 Cr. M. & R

617,' 338

V. Hills, 5 Jur. N. S. 809;

7 id. 833, .... 263

V. Jackson, 16 Barb. 33, 349,

750, 1094

V. Jonte, 15 La. Ann. 290, 978

V. Macomber, 18 Pick.

505, 690, 691, 695

V. Merrill, 6 Me. 41, - 701

V. Merritt, 105 111. 293, - 554

V. MorreU, 2 Ph. 453, - 331

V. Muggeridge, 3 Story,

334, 337, - - - 754

V. Pistor, 3 B. & P. 388, - 1109

—^ V. Ramsbottom, 8 B. & C.

357; 5 Dow. & I{y. 188, 560, 846

V. Wooten, 35 Ala. 343, - 608

V. Wright, 66 Me. 393, 1103

Parkes v. Parker, 57 Mich. 56, 643,

655
Parkhurst v. Kinsman, 1

Blatchf . 488, - 69, 585

V. Muir, 7 N. J. Eq. 307, 996

V. Muir, 7 N. J. Eq. 555, - 957

Parkinson v. Hanbury, L. R. 3

H. L. 1, - - 962

Parks V. Comstock, 59 Barb. 16, 551

V. Mosher, 71 Me. 304, - 1160

Parmalee v. Wiggenhorn, 5

Neb. 333, 503, 507, 510, 51 1

Parmelee v. Lawrence, 44 111.

405, - - - 386

Parnell v. Robinson, 58 Ga. 26, 228,

306

CXXXVIU

,Par.]

TABLE OF CASES.
t

[Pea,

843

PaiT, Ex parte, 1 Rose, 76,
Parry v. Henderson, 6 Blaclif.

78, - - - - - 1074

Parshall v. Fisher, 43 Mich. •

539, - - . - 101, 138, 1158
Parsons v. Hayward, 31 Beav.

199 (affd. in 4 DeG. F. & J.

474), - ' - - ' 316, 575, 794
V. Hayward, 4 DeG. F. &

J. 474,' - - - - - 575

V. Tillman, 95 Ind. 453, 884

Partridge v. Wells, 30 N. J. Eq.

176, - - 544, 790, 947

Patch V. Wheatland, 8 Allen,

103, - 300, 401, 406, 407, 453

Pate V. Bacon, 6 Munf. (Va.)

319, - - - 1049, 1065

Paterson v. Maughan, 39 Up.

Can. Q. B. 371,

V. Zachariah, 1 Stark.' 71,

Paton V. Baker, 63 Iowa, 704,

V. Wright, 15 How. Pr.

481,

Patridge v. Kingman, 130
Mass. 476, - - 43, 104

Pattee v. Gilmore, 18 N. H. '
460 (45 Am. Dec. 385), -

Patten V. Cunningham, 63 Tex.
666,

V. Gurney, 17 Mass. 183,

V. Kavanagh, 11 Daly, 348,

V. Whitehead, 13 Rich. L.

156, - - - -

Patterson's Appeal (Supreme

Ct. Pa: 1883), 13 Weekly

Notes, 154, - - - 113, 138
Patterson v. Blake, 13 Ind. 436, 976
I V. Brewster, 4 Edw. Ch.

853, . - - - 151,305

V. Chalmers, 7 B. Mon.

595, - - . 70, 734

V. Lilly, 90 N. Ca. 82, 949, 950

V. Martin, 6 Ired. L. Ill, 639,

630

V. Seaton, 70 Iowa, 689, - 566

V. Silliman, 38 Pa. St. 304, 241,

242

403
694

283

338

701

1086
1034

418

1073

66

773

660

Patterson v. Trumbull, 40 Ga.

104, - - - - 1118

V. Ware, 10 Ala. 444, 800, 916

Pattison v. Blanchard, 6 Barb.

537, .... 849

V. Blanchard, 5 N. Y. 186,

Patton V. Calhoun, 4 Gratt,

188,
Paul V. Edwar<}s, 1 Mo. 30, -
Pawsey v. Armstrong, 18 Ch.

D. 698, - - 38,

Payne v. Freer, 91 N. Y. 43

(43 Am. Rep. 640; aff'g 35

Hun, 134), - - 784, 851
.V. Gardiner, 29 N. Y. 146

(aff. S. C. as Payne v. Slate,

39 Barb. 631),

V. Hornby, 25 Beav. 280, -

V. James, 86 La. Ann. 476,

V. Matthews, 6 Paige, 19,

V. O'Shea, 84 Mo. 139,

■ V. Slate, 89 Barb. 634 (affd.

as Payne v. Gardiner, 39 N.

Y. 146), - . 693, 703, 704
V. Thompson, 44 Oh. St.

193,
Peabody v. County Comm'rs,

'10 Gray, 97,
Peace, Re, 13 Bankr. Reg. 168,
Peacey v. Peacey, 27 Ala. 683,

338, 636, 879
Peacock, Ex parte, 3 Gl. & J.

27,
V. Cummings, 46 Pa. St,

434 (5 Phila. 253), -
V. Peacock, 2 Camp. 45, -

693
553

457

845

1079

139

175
833
337,

842

V. Peacock, 16 Ves. 49,

433
181,

257
679,
1003
1170

560

833

V. Stott, 90 N. Ca. 618,

Peake, Ex parte, 1 Mad. 346,

, Ex parte, 3 Rose, 54,

Pearce v. Chamberlain, 3 Ves.
Sr. 33, - - 158, 581

V. Cooke, 13 R. I. 184, 747, 750,

826
V. Ham, 113 U. S. 585, 572, 796

CXXXIX

Pea.]

Pearce v. Hewitt, 31 Beav. 33,

V. Lindsay, 3 De G. J. &

Sm. 139, .... 575

V. Madison & Indianapolis

R. B. 21 How. 441, - - 133

V. Pearce, 77 111. 384, 359, 788,

813, 983, 983

V. Shorter, 50 Ala, 318, - 456,

1103, 1119

V. Wilkins, 3 N. Y. 469, 326,

380
Pearl v. Harris, 131 Mass. 390, 233
Pearpoint v. Graham, 4 Wash.
C. C. 232, 338, 339, 403, 405, 577,

583
Pearson ' v. Concord R. R. Co.
(N. H.) 13 Am. & Eng. R. R.
Cas. 94, ... 133

V. Keedy, 6 B. Mon. 128

(43 Am. Dec. 160), 743, 746, 929

V. Pearson, 27 Ch. D. 145, 664,

666'

V. Post, 3 Dakota, 320, 197,

401, 418

V. Skelton, 1 M & W.

504, 852

Pease v. Cole, 53 Conn. 53, 329, 341,

' 344, 345, 371

V. Hewitt, 31 Beav. 23, 806, 809

V. Hirst, 10 B. & C. 133;

5 M. & R. 88, 651, 1016, 1017
V. McClelland, 2 Bond, 43, 393

V. Morgan, 7 Johns. 468, 1068

V. Rush, 3 Minn. 107, - 1017

Peck V. Boggess, 3 111. 281, 960

- V. Fisher, 7 Cush. 386, . 1102,

1107, 1114, 1115

V. Parchen, 53 Iowa, 46, T056

V. Schultze, 1 Holmes, C.

C. 38, - - - - 1107, 1109
V. Wakely, 1 McCord, Ch.

43, - . - - 881

Pecker v. Hall, 14 Allen, 533, 613
Peckham Iron Co. v. Harper,

41 Oh. St. 100, - - 468, 474

Pecks V. Barnum, 24 Vt. 75, - 173,

1137, 1138

TABLE OF CASES.
805

[Peo.

Pecot V, Armelin, 31 La. Ann.

667, .... 287, 303
Peel V. Bryson, 73 Ga. 331, - 1085

V. Ringgold, 6 Ark., 546, 1026

Peele, Ex parte, 6 Ves. Jr. 602, 503,
511, 513, 1016
Pegg V. Plank, 3 Up. Can. C. P.

396, . - - - 1079

Peine v. Weber, 47 111. 41, 393, 416,

417
Peirce v. Tobey, 5 Met. 168, - 704
Peirse v. Bowles, 1 Stark. 333, 406
Peltz V. Eichele, 62 Mo. 171, 676.

Pelzer v. Campbell, 15 S. Ca.

581, . - - 420, 421

Pemberton v. Oakes, 4 Russ.

154, - 499, 649, 650, 656

Pence v. McPherson, 30 Ind.

182
747
927
395
446

Pendleton v. Phelps, 4 Day,

481,

V. Wambersie, 4 Cranch,

73, - - - - -
Penguet v. McKenzie, 6 Up.

Can. C. P. f.08, .
Penn v. Kearny, 31 La. Ann.

21, - - .

V. Stone, 10 Ala. 309, . 869

V. Whitehead, 17 Gratt.

503, .... 136, 143

Penniman v. Munsop, 26 Vt.

164, - . 69

Pennington v. Bell, 4 Sneed

(Tenn.), 200, 569, 835

Pennoyer v. David, 8 Mich.

407, . ... 701

Pennsylvania Ins. Co. v.

Murphy, 5 Minn. 36, - - 409
Penny v. Black, 9 Bosw. 310, 264
V. Martin, 4 Johns. Ch.

566, ..... 535

Pennybacker v. Leary, 65 Iowa,

330, - 390, 303, 833, 974, 975

Pennymanv. Jones, 58 N. H.

647, .... 938

People V. Judges of Duchess, 5

Cow. 34, 414

cxl

Peo.]

TABLE OF CASES.

[Ppe.

People V. Lott, 36 111. 447, - 740

V. White, 11 111. S41, 715, 740,

741, 743, 1000
People's Bank v. Shryock, 43

Md. 427 (80 Am, Dec. 476), - 1103,

1111
Pepper v. Labrot, 8 Fed. Rep.

29, - - - - 674

PercifuU v. Piatt, 86 Ark. 456, 298,

296
PereDS v. Johnson, 3 Sm. & G.

419, .... 311, 788
Perkins v. Hoyt, 35 Mich. 506, 336

v. Perkins, 3 Gratt. 364, 86

V. Walker, 16 Vt. 240, - 1121

V. Young, 16 Gray, 389, 880,

881
Perlljerg v. Gorham, 10 Cal.

120, - - - 383, 415

Perley v. Brown, 13 N. H.

493, - - - - 849

Perrin v. Keene, 19 Me. 355 (86

Am. Deo. 759), - ' - 526, 695
Perrine v. Hankinson,ll N. J.

L. 181, . ... 45

Perring v. Hone, 4 Bing. 28 (2

C. &'P. 401), 72,74,346,851,878,

900
Perrott v. Bryant, 2 Young &

C. Ex. 61, ■ - - - - 59
Perry v. Butt, 14 Ga. 699, 32, 981

V. Hale, 148 Mass. 540, 595, 897

V. Holloway, 6 La. Ann.

265, - - - 180
V. Randolph, 6 Sm. & Mar.

835, 323, 323, 459, 1150, 1163

-^ — V. Spencer, 23 Mich. 89, - 643
Person v. Carter, 3 Murph.

(N. Ca.)831, - - - - 416

V. Wilson, 35 Minn. 189, 363

Personette v. Pry me, 34 N. J.

Eq. 36, - - 301, 907

Persse & Brooks Paper Works

V. Willett, 1 Robt. 131^, 19

Abb. Pr. 416, - - 560

Perzell V. Shook, 53 N. Y. Su-
perior Ct. 501, - - 350

Peteetv. Crawford, 51 Miss, 43, 959
Peters v. Anderson, 5 Taunt.

596, - - - - 489

V. Davis, 7 Mass. 357, - 722

V. Mc Williams, 78 Va.

567, - - 507, 570, 763

• V. Sanford, 1 Den. 224, 535

Peterson v. Roach, 32 Oh. St.

374 (30 Am. Rep. 607), 446, 450,

451
V. Humphrey, 4 Abb. Pr.

394, - - - 669, 672

V. State, 33 Tex. 477, - 488

Petit V. Chevelier, 13 N. J. Eq.

181, - - - - 991

Petrie v. Hanway, 3 T. R. 418, 113,

137
V. Lament, 1 Car. & M.

93, - - - 467

V. Newell, 13 111. 647, - 1068

Pettee v. Appleton, 114 Mass.

114, - -' ' 33, 47
V. Orser, 6 Bosw. 123 ; 18

How. Pr. 442, 338, 340, 408

Pettes V. Spalding, 21 Vt. 66, 1125
Pettingill v. Jones, 28 Kan.

749, - - - - 865

Pettis V. Atkins, 60 111. 454, 72, 74,''

1049, 1050
V. Bloomer, 21 How. Pr.

317, - - - 416, 419

Petty V. Hannum, 2 Humph.

102, - - - 395

Pettyt V. Janeson, 6 Madd.

146, - - - - - - 245

Petzer v. Campbell, 15 S. Ca.

581, - - - , - - 423
Peyton v. Lewis, 12 B. Mon.

356, - - - 532, 634, 635

V. Stratton, 7 Gratt. 380, 384,

693.
Pfau V. Lorain, 1 Cinti. Supe-
rior Ct. 73, - - . 1071
Pfeflfer v. Steiner, 27 Mich. 587, 719,

733
Pfeifer v. Chamberlain, 53

Miss. 89, .... 1135
cxli

Pfe.]

TABLE OF CASES.

[Pie.

Pfeiflfer v. Maltby, 38 Tex. 533

(see Pf euff er v. Maltby, 54 id.

454), 137

PfeuflEer v. Maltby, 54 Tex. 454, 114,

137
Pfirrman v. Koch, 1 Cincinnati

Superior Ct. Eep. 460, 559, 560
Pfister V. Wade, 69 Cal. 133, - 1067
Phaup V. Stratton, 9 Gratt.

615, .... 1073

Phelan v. Hutchison, Phil.

(N. Ca.) Eq. 116, - - 764, 765
Phelps, Ee, 17 Bankr. Reg. 144, 640
V. Brewer, 9 Cush. 390 (57

Am Dec. 56), 1088, 1089, 1090

Y. Lyle, 10 A. & E. 113, 1017

V. McNeely, 66 Mo. 554(37

Am. Rep. 378), 563, 563

Phelps Mfg. Co. V. Eng. 19

Conn. 58, ... 1059

Philippi V. Philippi, 61 Ala. 41, 953
Philips V. Crammond, 3 Wash.

C. C. 441, - 544

V. Henry, 3 Head, 133, - ^ 1168

V. Philips, 3 Have, 381, 736

V. Samuel, 76 Mo. 657, ■ 55

Y. Turner, S'Bev. & Bat.

Eq. 133, 770, 968. 978, 979

Phillips V, Ames, 5 Allen, 183, 563,

566

V. Blatchford, 137 Mass.

510, 51, 53, 73, 187, 603, 853, 905,

910

■ V. Clagett, 11 M. & W. 84, 383

V. Gook, 34 Wend. 389, - 1101,

1105. 1109, 1111, 1113

V. Jones, 30 Mo. 67, - 549

; V. LockUait, 1 Ala. 351, - 853

—^ V. Nash, 47 Ga. 318, - 86, 153,
156, 157, 333, 459, 597, 608

V. Pennywit, 1 Ark. 59, - 70,

148, 1032, 1033

V. Phillips, 1 Myl. & K.

649, - - 285

V. Phillips, 49 111. 437, 3

V. Purington, 15 Me. 425, 70,

330, 331, 1143

Phillips V. Reeder, 18 N. J. Eq.

95, - - 305, 596, 6S9, 797

V. Reeder, 18 N. J. Eq. 614, 685

V. ' Trezevant, 67 N. Ca.

370, ------ 994

Philson V. Bampfield, 1 Brev.

(S. Ca.)303, - - - - 538
Phipps V. Sedgwick, 95 U. S. 3, 564
Phoenix Ins. Co. v. Moog (Ala.),

1 South. Eep. 108, - 735, 1029

Piano Co. v. Bernard, 2 Lea,

358, 503, 507, 508, 510, 511, 513,
544, 978, 979
Piatt V. Oliver, 3 McLean, 37

(affd. 3 How. 333), 113, 341, 293,
801, 303
Pickels V. McPherson, 59 Miss.

316, - - 317, 383, 446

Pickett V. Cloud, 1 Bailey (S.

Ca.), 362, - - - 1166

Pico V. Cuyas, ^7 Cal. 174, 209, 855
Pier V. Duff, 63 Pa. St. 59, 547

Pierce v. Alspaugh, 83 N. Ca.

338, - 507, 503
V. Cameron, 7 Rich. (S.

Ca.) L. 114, - 430, 431, 524

V. Covert, 39 Wis. 253, - 976

V. Daniels, 25 Vt. 624, 306,311,

761, 770, 773

V. Fuller, 8 Mass. 223, 678

V. Jackson, 21 Cal. 636, - 303

V. Jackson, 6 Mass. 343, 475,

1113, 1114, 1115

V. Jarnagin, 57 Mass. 107, 318,

320, 322, 401

V. Kearney, 5 Hill, 82, 537, 1168

V. Kingsbury, 63 Mo. 259, 1106

V. McClellan, 93 111. 245, 942,

945
V. McCoimell, 7 Blackf.

170, - - - . 1151
V. Nashua F. Ins. Co. 50

N. H. 397 (9 Am, Rep. 235), 273, 273

V. Pass, 1 Porter (Ala. ), 232, 410

V. Plumb, 74 111. 326, - 636

V. Scott, 37 Ark. 308, 313, 770,

9;2

cxlii

Pie.]

TABLE OF CASES.

[Plo

Pierce v. Shippee, 90 111.

371, - ... 28

V. Thompson, 6 Pick. 193, 894,

893
V. Tiernan, 10 Gill & J.

253, - - - 831, 917
V. Trigg, 10 Leigh (Va.), '

406, - - 281, 298, 294, 974

V. Whitley, 39 Ala. 172, 1136

V. Wood, 3 Foster (23 N.

H.), 519, - 465, 701

Pieroy v. Fynney, L. E. 12 Eq,

69, - 383, 425, 1039

Pierson v. Hooker, 3 Johns. 68

(3 Am. Dec. 467), 383, 415
V. Steinmyer, 4 Rich. L.

309, 16, 47

Pigott V. Bagley, McCI. & Y.

569, 51, 249

Pike V. Bacon, 31 Me. 380 (38

Am. Deo. 259), 416, 419

— — V. Bateman, 1 Iowa, 369, 72

V. Douglass, 38 Ark. 59, - 78

T. Hart, 30 La. Ann. Part

IT, 868, ' - - 848

Pilcher, Succession of, 1 South.

Rep. 939, - - 172

Pillans V. Harkness (H. of L.

1713), Collps, 443, 595,805

Pilling V. Pilling, 3 De G. J. &

Sm. 163, - 311, 363, 783

Pillsbury v. Pillsbury, 20 N. H.

90, - - - - - 876

Pim V. Harris, Irish Rep. 10
. Eq. 442, - ... - 783
Pinckney v. Keyler, 4 E. D.

Smith, 469, ... 45, 375

V. Wallace, 1 Abb. Pr. 83, 722,

731
Pine V. Orrasbee, 2 Abb. Pr. (N.

S.) 375, . - . . 571, 794
Pingree v. Coffin, 12Gray, 388,

314, 711

Pinkerton, Ex parte, 6 Ves.

814, n., .... 834
V. Ross, 33 Up. Can. Q. B.

508, ... 32, 139, 337

Pinkett v. Wright, 3 Hare, 120

(s. c. as Murray v. Pinkett,

12 CI. & Fin. 764), - 187

Piukney v. Hall, Ld. Raym.

175 ; 1 Salk. 126, - 341

Pinschower v. Hanks, 18 Nev.

99, - - 1053, 1053

Piper V. Smith, 1 Head, 93, 897, 770,

773
Pirtle V. Penn, 3 Dana, 247.(28

Am. Dec. 70), 181, 182, 910, 991
Pitcher v. Barrows, 17 Pick.

361 (28 Am. Dec. 306), 621, 632,
882, 884, 904
Pitkin V. Pitkin, 7, Conn. 307

(18 Am. Dec. Ill), 55, 580, 598, '
• 599, 600

V. Roby, 43 N. H. 138, - 1039

Pitt V. Cholmondeley, 2 Ves.

Sr. 565, - 964

Pittman v. Planters' Bk. 1

How. (Miss.) 527, - - 1086
T. Robicheau, 14 La. Ann.

108, - .... 1113

Pitts V. Brewster, 4 Edw. Ch.

332, - - - - 150

V. Hall, 3 Blatchf . 201, - 69

Place V. Sedgwick', 95 U. S. 3, 566

V. Sweetzer, 16 Oh. 142, - 1109,

1111
Planters' & Mer. Bk. v. Willis,

5 Ala. 770, - - 194, 401

Planters' & Miners' Bk. v.

Padgett, 69 Ga. 159, 4
Piatt V. Halen, 23 Wend. 456, 1023
V. Piatt, 61 Barb. 53; 11

Abb. Pr. (N. S.) 110, - - 715
Pleasants v. Meng, 1 Dall. 380, 838,

683
Hews V. Baker, L. R. 16 Eq.

564, 571, ... 233

Ploss V. Thomas, 6 Mo. App.

'157, .... 139, 140
Plowden, Ex parte, 8 Dea. 456 ;

3 Mont. & A. 403, - - 760

Plowman v. Riddle, 7 Ala.

775, - - . . . 1071

cxiiii

Plu.]

TABLE OF CASES.

[Pos.

Plumer v. Gregory, L. R. 18
Eq. 631, - - 371, 474, 477

V. Lord, 5 Allen, 460, 136, 139

V. Lord, 7 Allen, 481, 33, 139

Plummer, Re, 1 Ph. 56, - - 843

V. Trost, 81 Mo. 425, 61, 140

Plunkett V. Dillon, 4 Del. Ch.

198,

• 47, 49

La.

- 925
Sneed
- 23, 43, 47

Poohelu V. Kemper, 14

Ann. 308, - - 4

Pogson V. Owen, 3 Desaus. 31, 1027
Poillon V. Secor, 01 N. Y. 456, 93, 93,

445
Poindexter v. Waddy, 6 Munf.

(Va.) 418 (8 Am. Dec. 749), 347,

507
Polnton V. Pointon, L. R. 13

Eq, 547,
Polk V. Buchanan,

(Tenn.), 731, -

V. Oliver, 56 Miss. 566, 97, 618

Pollard V. Brady, 48 N. T.

Superior Ct. 476, . - - 198

V. Stanton, 5 Ala. 451, 453, 853

V. Stanton, 7 Ala. 761, - 17, 56

Pollock V. Glazier, 30 Ind. 263, 1068,

1094

V. McClurken, 42 111. 370, 1164

- — V. WiUiams, 43 Miss. 88, 323,

446, 523
Pollexfen v. Sibson, 16 Q. B. D.

793, - 1059, 1062

Pomeroy v. Benton, 57 Mo.

531 (14 Am. Law Reg. N. S.

306), - 309, 790, 958, 961

V. Benton, 77 Mo. 64, 309, 789,

961, 983

V. Coons, 20 Mo. 597, 615

V. Sigerson, 23 Mo. 177, - 60

Pond V. Clark, 34 Conn. 370, - 183,
968, 978, 979

V. Cummins, 50 Conn. 873, 43

V. Kimball, 101 Mass. 105, 1131

Poolv. Delaney, 11 Mo. 570, - 850

V. Perdue, 44 Ga. 454, - 860

Poole V. Fisher, 62 111. 181, - 91, 94
V. Gist, 4 MeCord, L. 359, 709

Poole V. Hintrager, 60 Iowa,
180, - - 504, 510, 1094

V. Lewis, 75 N. Ca. 417, 445, 451

V. Seney, 66 Iowa, 503, - 561

Pooley V. Driver, 5Ch. D. 458, 1, 17,
18, 35, 49, 50, 173

V. Whitmore, 10 Heisk.

(Tenn.) 639 (27 Am. Rep.

738), 329, 343, 349, 364

Pope V. Batsman, 1 Iowa, 369, 1028

- V. Cole, 55 N. Y. 124 (14
Am. Rep. 19^, - 747, 750

V. Hays, 39 Tex. 375, 639, 640

V. Nance, 1 Stew. (Ala.)

354 ; id. 230, - 527

V. Randolph, 18 Ala. 214, 858

V. Risley, 23 Mo. 185, 631, 700

V. Salsman, 85 Mo. 363, 939

Popper V. Scheider, 7 Abb. Pr. ^

(N. S.) 56; 38 How. Pr. 84, - 1003
Porche v. Le Blanc, 13 La.

Ann. 778, 1163

Porter v. Graves, 104 U. S. 171, 1154
Port Darlington Harbor Co. v.

Squair, 18 Up. Can. Q. B

533,, 533, 534

Porter v. Curry, 50 111. 819, 367, 439

V. Ewing, 84 111. 617, 48

V. Gorman, 65 Ga. 11, - 664

V. Gunnison, 2 Grant's

Cas. (Pa.) 297, - 847, 362

V. McClure, 15 Wend. 187, 64

V. Parraley, 53 N. Y. 185, 179

V. Taylor, 6 Moo. & S. 156, 381,

684
V. Vance, 14 Lea, 637, - 468

V. Wheeler, 37 Vt. 381, 766,

899

V. White, 89 Md. 613, -339, 361,

364
Porthouse v. Parker, 1 Camp.

82, - - - 397, 399

Portland Bank v. Gershom, 11

Me. 196, 883,884,900

Portsmouth v. Donaldson, 33

Pa. St. 203, 274, 375, 455, 978

Posey V. Bullitt, 1 Blackf. 99, 414

cxliv

PQS.]

TABLE OF CASES.

[Phi.

Post V. Kimberly, 9 Johns. 470, 71

Postlewait v. Howes, 3 Iowa,

, 365 749

Pote V. PhiUips, 5 Cranoh, C.

C. 154, - - - - - 858

Pott V. Eyton, 3 C. B. 33, 43, 91, 95
Potter V. Dillon, 7 Mo. 338 (37

Am. Dec. 185), - - - 347

V. Greene, 9 Gray. 309, - 96

- — V. Jackson, 13 Ch. D. 845, 987

V. Moses, 1 R. I. 430, 48, 334,

573, 791, 794
Potts V. Blackwell, 3 Jones (N.

Ca.), Eq. 449, - 560, 565
V. Blackwell, 4 Jones, Eq.

58, - - ■ 560, 565

Powell, Succession of, 14 La.

Ann. 435, - - 849
V. Graves, 9 La. Ann. 435, 880

V. Hopson, 13 La. Ann.

636, - - - 598

V. Maguire, 43 Cal. 11, 78, 113,

870

V. Messer, 18 Tex. 401, 361, 363,

1046

V. North, 3 Ind. 393 (56

Am. Dec. 513), - 604, 737

— ^ V. Kobinson, 58 Ga. 36, 795

V. Waters, 8 Cow. 669, 393

Power V. Kirk, 1 Pittsburg

Eep. 510, - - - 585, 688
Powers V. Dickie, 49 Ala. 81, 970, 983

V. Fletcher, 84 Ind. 154, 504

V. p-uardian Ins. Co. 136

Mass. 108 (49 Am. Eep. SO), 373,

373
Powrie v. Fletcher, 3 Bay (S.

Ca.), 146, - - - - 1079
Pratt V. Langdon, 97 Mass. 97 ;

13 Allen, 546, - - - 40, 91
V. McHatton, 11 La. Ann.

360, 761, 766, 775, 783, 789, 930, 974,

986

V. Ogdensburg & Lake

Champlain E. R. 103 Mass.

557, - - 66, 134
V. Page, 33 Vt. 13, 608, 609, 636

Pratt V. Willard, 6 McLean,

37, - - - - - 1067

Pray v. Mitchell, 60 Me. 43(), - 856
Prentice v. Elliott, 73 Ga. 154, , 785,

786, 949
Prentiss v. Brennan, 1 Grant's

Ch. (Up. Can.) 484, - 545, 790

V. Foster, 38 Vt. 743, 695

V. Sinclair, 5 Vt. 149 (36

Am. Dec. 388), - - 618, 631
President v. Cornen, 87 N. Y.

330, - - ... 635
Pressley v. Harrison, 103 Ind.

14, . ... 995

Preston v. Colby, 117 111. 477, 835,

,847
V. Foellinger, 34 Fed. Rep.

680, - . . 107, 611

V. Strutton, 1 Anstr. 50, - 861

Preusser v. Henshaw, 49 Iowa,

41, - ,- 510,511

Prewett v. Buckingham, 38

Miss. 93, - - - 943
Price's Estate, 81 Pa. St. 363, - 987
Price, Re, 6 Bankr. Reg. 400, - 1131
V. Alexander, 3 G. Greene

(Iowa), 437 (53 Am. Dec. 536), 43,
45, 416, 418, 419

V. Barker, 4 E. & B. 760, 385,

386

V. Gavins, 50 Ind. 133, - 845

V. Drew, 18 Fla. 670, 849, 851,

853, 858, 865

V. Groom, 3 Ex. 543, - 53, 88

V. Hicks, 14 Fla. 565, 381, 385,

390, 393, 736

V. Hunt, 59 Mo. 358, 410, 1141,

1145

V. Mulford, 36 Hun, 347, 483

V. Towsey, 8 Litt. (Ky.)-

433, - - - - - 613
Priest V. Chouteau, 13 Mo.

App. 353 (affd. 85 Mo. 898), 36,
861, 391, 1147
V. Chouteau, 85 Mo. 398

(aflE. 13 Mo. App. 353), 36, 361, 390,
391, 833, 1147

cxlv

Pki.]

TABLE OF CASES.

[Rad.

Prince v. Crawford, 50 Miss.

344, 818, 323, 339, 343, 845, 371

Princeton & Kingston Turn-
pike Co. V. Gulick, 16 N. J.

L. 161, - 13, 350, 365, 609, 615, 634
Pringle v. Leverich, 16 Jones

& Sp. 90, 94, - - - - 93
V. Leverich, 97 N. Y. 181

(49 Am. Rep. 533), - - 700

Printup V. Turner, 65 Ga. 71, - 296,
1086, 1098
Pritt V. Clay, 6 Beav. 503, 959

Prize Cases, 3 Black, 685, 114, 583
Prosser v. Hartley, 85 Minn.

340, - - - 1131

Proudfoot V. Bush, 7 Grant's

Ch. (Up. Can.) 518, - - 339
Prouty V. Swift, 51 N. T. >

594, - 36, 48

Providence v. Bullock, 14 R. I.

353, - - - 385

Prudhomme v. Henry, 5 La.

Ann. 700, - - - 695

Puckett V. Stokes, 3 Baxter

(Tenn.), 443, - - - 439, 443
Pugh V. Currie, 5 Ala. 446, 385, 393,

394
Pullen V. Whitfield, 55 Ga. 174, 747,

750
Punnett, Ex parte, 16 Ch. D.

326, - - - - 659

Purdy V. Powers, 6 Pa. St.

443, - - - 1038, 1046

Purinton v. Ins. Co. 73 Me. 22, 333
Pursley v. Ramsey, 31 Ga. 408, 191
193, 323, 618
Purviance v. Dryden, 3 S. & R.

403, - - - - 1162

V. Edwards, 17 Fla. 140, 1087

V. McClintee, 6 S. & R.

359, - . - - 44

- — V. Sutherland, 3 Oh. St.

478, 848, 416, 418, 420, 433, 438

Purvines v. Champion, 67 111.

459, 858, 866, 893

Purvis, Re, 1 Bankr. Reg. 163, 383
Puschel V. Hoover, 16 111. 340, 1050

Putman v. Fife Lake Twp. 45

Mich. 135, - - - 176, 177
Putnam v. Dobbins, 38 111, 394, 383

V. Parker, 55 Me. 335, 733, 734

V. Ross, 55 Mo. 116, 456 1051

V. Wise, 1 Hill, 234, - 61

Pyke V. Searcy, 4 Porter (Ala.),
53, 742

Q.

Qnackenbush v. Sawyer, 54
Cal. 439, - - 31, 45, 63

Quagle V. Guild, 91 III. 378, - 942

Queen v. Mallinson, 16 Q. B.
367, - " - - - 377, 898

v. Robson, 16 Q. B. D.

137, . - 75
Quillen v. Arnold, 13 '"^ey. 234, 732,

724
Quincy v. Young, 5 Daly, 827

(rev. in part, 68 N. Y. 370), - 1149
Quine V. Quine, 9 Sm. & Mar.

155, - - 13

Quinlan v. Keiser, 66 Mo. 603, 959
Quinlivan v. English, 43 Mo.

363, - - - 921
V. English, 44 Mo. 46

(limiting 43 id. 363), - 993, 999
Quinn v. Fuller, 7 Cush. 224, - 393,

1044

R.

Raba v. Ryland, Gow, N. P.

138, - - - - 358
Rabby v. O'Grady, 88 Ala. 355, 1144
Rabe v. Welts, 8 Cal. 148, - 617
Rackstraw v. Imber, Holt, N.

P. 368, 858

RadclifiE v. Woods, 35 Barb. 53, 1131,

1133
Radcliffe v. Yamer, 55 Ga. 427, 333,

1084
Radenhurst v. Bates, 3 Bing.
463, 890

cxlvi

Rai.]

TABLE OF CASES.

[Rea.

Raiguel's Appeal, 80 Pa. St. 234

(as Wentwoith v. Baiguel, 9

Phila. 375), >■ 43, 455, 548, 931

Railroad Co. v. Bixby, 55 Vt.

235, .... 133, 1111

V. Sprayberry, 8 Bax. 341, 66

Rainey v. Nance, 54 111. 39, 1109,

1111
Ralph v^. Lockwood, 61 Cal.

155, 139

Ralston v. Moore, 105 Ind. 343, 749
Ramey v. McBride, 4 Strob. (S.

Ca.) L. 13, - - - 411

Rammelsberg v. Mitchell, 29

Oh. St. 23, 344, 296, 397, 398, 598,
599, 661, 665, 748
Ramsbottom v. Lewis, 1 Camp.

179, . 849, 695

Ramsey v. Barbaro, 13 Sm. &

Mar. (30 Miss.) 661, 894

Randall v. Baker, 30 N. H.

835, -■ . - 407

V. Hunter, 66 Cal. 513, 847

V. Johnson, 13 R. L 338, 1105,

1108, 1111
V. Morrell, 17 N. J. Eq.

843, .... 995

Randegger v. Holmes, L. R. 1

C. P. 679, - - 333

Randel v. Yates, 48 Miss. 685, 1187
Randle v. Richardson, 58 Miss.

176, 181, 764, 765, 770, 795, 813,
983, 985

y. State, 49 Ala. 14, - 43

Randolph, In re, 1 Ontario

App. 815, - - - 38

V. Daly, 16 N. J. Eq. 313, 569,

1130
V. Govai^ 14 Sm. & Mar.

9, 1185

V. Peck, 1 Hun. 138, - 698

Randolph Bk. v. Armstrong,

11 Iowa, 515, - T - 401

Bank v. Grote, 50 N. Y. .Supe-
rior Ct. 375, - 381, 397
Rankin v. Harley, 13 New

Brunswick, 371, - - - 1158

Rankin v. Jones, 2 Jones (N.

Ca.), Eq. 169, - - 551, 560

V. Shephardson, 89 111. 445, 646

Ransom v. Loylesa, 49 Ga. 471, 612
V. Van Deventgr, 41 Barb.

807, - - 561, 563, 564

Rapier v. Gulf City Paper Co.

64 Ala. 380, - - - - 286
Rapp V. Latham, 3 B. & Aid.

795, - - - 331, 473, 479

V. Vogel, 45 Mo. 534, - 1149

Rathbone v. Drakeford, 4

Moo. & P. 57, - - - 380
Rathwell v. Rathwell, 26 Up.

Can. Q. B. 179, - 718, 741

Eatzer v. Ratzer, 38 N. J. Eq.

136,
Rau V. Boyle, 5 Bush, 258,
Ravenscraft v. Pratt, 23 Kan.

20,
Rawlins v. Wickham, 3 De G.

& J. 304 (s. c. below, 1 GifiE.

355), . . . i -
Rawlinson v. Clark, 15 M. &

W. 393, ...

V. Moss, 7 Jur. N. S. 1053,

Rawson v. Pratt, 91 Ind. 9, 657, 659
V. Taylor, 80 Oh. St. 389

(37 Am. Rep. 464),
Ray V. Bogart, 2 Johns. Ch.

432,

V. Powers, 184 Mass. 33, -

Rayburn v. Day, 27 111. 46, -
Raymond, Sir Charles' Case,

cited in 3 Rose, 353, 255,

V. Bigelow, 11 N. H, 466,

V. Catoe, 45 N. H. 301,

V. Putnam, 44 N. H. 160

(S. C. as Raymond v. Came,

45 id. 301), - 150, 355, 813, 813,
817, 930
V. Vaughan, 17 111. App»

144, - - -

Read v. Bailey, L. R. 8 App.

Cas. 94 (aff. S. C. sub: nom.

Lacey v. Hill, Ch. D. 537),

1186

819

936

595

43

710

584

953

75

526

167
642
980

581

836,
839

cxlvii

Rea.]

TABLE OF CASES.

[Bel

Read v. McLanahan, 15 Jones

& Sp. 275, - - - - 1105

V. Nevitt, 41 Wis. 348, - 244,

305, 890

V. Smith, 60 Tex. 379, 110, 119

Reading R. R. y. Johnson, 7

W. & S. §17, - - - 386

Reber v. Columbus Mach. Mfg.

Co. 13 Oh. St. 175, - - 109
Reboul V. Chalker, 27 Conn.

114, - - - - 78, 577
Receivers of Mechanics' Bank.

See Mechanics' Bank, Re-
ceivers of.
Record v. Record, 31 New-
Brunswick, 277. - - - 378
Reddingtoh v. Lanahan, 59

Md. 439, ... 17, 48

RedhefEer v. Leather, 15 Mo.

App. 13, - - - 710

Redlon v. Churchill, 73 M-e.

146 (40 Am. Rep. 345; 14

Centr. L. J. 413), - 349, 355, 358
Redmayne v. Forster, L. R. 3

Eq. 467, - - 163, 185, 937

Redmond v. Stansbury, 34

Mich. 445, - - - 1067

Reece ▼. Hoyt, 4 Ind. 169, 376, 577,

585, 756
Reed v. Girty, 6 Bosw. 567, 430, 537
V. Hanover Branch R. R.

105 Mass. 303. - - - 1018
V. Hussey, Blatchf. & H.

Adm. 525, - - - 59

V. King, 33 Iowa, 500, 644, 961

V. Kremer, 111 Pa. St.

482, - - - - 109, 1154
V. McLanahan, 15 Jones

&Sp. 275, - - - 1103

V. McLeod, 20 Ala. 576, - 1125

V. Murphy, 2 G. Greene

(Iowa), 574 (53 Am. Dec.

526), - - - 43, 45
V. Shepardspn, 3 Vt. 120

(19 Am. Dec. 697), 1101,1105,1107
V. Vidal, 5 Rich. (S. Ca.)

Eq. 289, 1013

Reed v. White, 5 Esp. 12,2, 533, 538

, V. Whitney, 7 Gray, 533, 1081

Reeder v. Sayre, 70 N. T. 180,

190, 734

Reese v. Bradford, 13 Ala. 837, 551,
560, 834, 939

V. Kindred, 17 Nev. 447, 733,

724

V. Kinkead, 18 Nev. 126, - 550,

1067

Reeve, Ex parte, 9 Ves. 588, - 436,

835, 836, 843, 845

Reeves v. Ayers, 38 111. 418, - 187,

291, 395

V. Denicke, 13 Abb. Pr.

N. S. 93, - - - ■ ■ - 670
V. GoflE, 3 N. J. L. 194, 454,

609, - - 70

Reevs v. Hardy, 7 Mo. 348, - 439
Reg. V. Warburton, L. R. 1 Cr.

Cas. 274; 11 Cox, C. C. 584, 377
Regester v. Dodge, 19 Blatchf.

79; 6 Fed. Rep. 6; 61 How.

Pr. 107, - - - - 519

Regina v. Evans, 9 Jur. N. S.

184, 377

V. McDonald, 7 Jur. N. S.

1127; 31 L. J. M. G. 67, - 43
V. McNaney, 5 Up. Can.

P.O. 438, - - - - 421
Rehill V. McTague (Pa.), 7 Atl.

Rep. 224, - - 955, 959, 961
Reid, Ex parte, 3 Rose, 84, 155, 840,

846
- — V. Eatanton Mfg. Co. 40

Ga. 98, - - . . 8

V. Godwin, 43 Ga. 537, 188, 884

V. Hollinshead, 4 B. & C.

867 ; 7 Dow. & Ry. 444, - 60, 65,

258, 406

V. McLeod, 30 Ala. 576, - 1135

V. McQuesten, 61 N. H.

431, - - - 780, 868

Reilly v. Reilly, 14 Mo. App.

63, - - - 167, 169

v. Smith, 16 La. Ann. 31, 612;

617

cxlviii

Rei

TABLE OF CASES.

[Ric.

Reilly v. Walsh, 11 Irish Eq.

23, - - 312

Eeirnsdyk v. Kane, 1 Gall.

630, - . 204,441,705

Reinheimer v. Hemingway, 35

Pa. St. 432, ■ - 1111

« Reis V. Hellman, 35 Oh. St.

180, - 158, 761, 870, 871

Reiter v. Morton, 96 Pa. St.

339, - - - 310, 591, 873
Reiniok v. Emig, 43 111. 343, - 181,

737
Remington t. Allen, 109 Mass.

47, - - 375

V. Cummings, 5 Wis. 138, 377,

380
Eencher v. Anderson, 95 N.

Ca. 208, - - - 944

Rend v. Boord, 75 Ind. 307, - 348
Renfrew v. Pearce, 68 111. 135, 545,

790
Renfro v. Adams, 63 Ala. 303, 389
Benny's Patent Button-Hole-

ing Co. V. Somervell, 38 L.

T. N. S. ,878 ; 26 W. R. 786, 669

Reno V. Crane, 3 Blackf. 217, 266
Rensselaer Glass Factory v.

Reid, 5 Cow. 587, 785, 786, 788

Renton v. Chaplain, 9 N. J.

Eq. 63, 311, 583, 584, 585, 754, 756,
993, 999, nil
Reppert v. Colvin, 48 Pa. St.

348, - - - 703

Reubin v. Cohen, 48 Cal. 545, 3'67
Revis V. Lamme, 3 Mo. [307]

168, - - - 1049

Rex V. Dodd, 9 East, 516, 73, 457

V. Hodgson, 13 Price, 537, 831

V. Manning, Comyn, 616, 468

V, Rock. 3 Price, 198, - 831

V. Sanderson, Wightwick,

50, - - - • - , - - 831
Reynell v. Lewis, 15 M. & W.

517; ISim. N. S. 178, 79. 89, 99
Reynold v. Bullock, 47 L. J.

Ch. 773; 39 L. T. N. S. 443;

26 W. E. 678, 661, 665

Reynolds v. Austin, 4 Del. Ch.

24, - - - - 581, 1003
V. Bowley, L. E. 3 Q. B.

474, - - - - 155, 840
V. Cleveland, 4 Cow. 283

(15 Am. Dec. 369), - - 445

V. Hicks, 19 Ind. 113, 164, 168

V. Mardis, 17 Ala. 33, - 781

V. Patrick, 53 Mich. 590, - 634

V. Pool, 84 N. Ca. 37 (37

Am. Rep. 607),
V. Ruckman, 35 Mich. 80,

61

286,
295
45

V. Toppan, 15 Mass. 370, -

V. Waller, 1 Wash. (Va.)

164, - - - - 473

Rhea v. Tathem, 1 Jones (N.

Ca.), Eq. 290, - 313, 589
V. Vannoy, 1 Jones, Eq.

(N. Ca.) 283, - 589

Rheam v. Smith, 2 Ph. 736, - 934
Ehett V. Poe, 2 How. 457, - 399
Rhiner v. Sweet, 3 Lans. 386, 455,

888, 973
Rhodes v. Amsiuck, 38 Md.

345, - - 377, 379, 935

V. McKean, 55 Iowa, 547, 365,

647

V. Williams, 13 Nev. 20, 290,

544, 566, 933, 970, 977
Rhoton's Succession, 34 La.

Ann. 893, - - 544

Rianhard v. Hovey, 13 Oh. 300, 73
Riarl v. Wilhelm, 3 Gill (Md.),

356, - 856, 858, 863

Rice, Appellant, 7 Allen, 113, 746,

749, 750

, Re, 9 Bankr. Reg. 373, 833

V. Austin, 17 Mass. 197, 33, 47,

59, 357
V. Barnard, 30 Vt. 479 (50

Am. Dec. 54), 13, 834

V. Barrett, 116 Mass. 313, 109

V. Barry, 3 Cranch, C. C.

447, - - - 365
V. Culver, 33 N. J. Eq.

601, 897

cxlix

Ric.]

TABLE OF CASES.

[Rio.

Rice V. Doniphan, 4 B. Mon.
133, - ... 1085

V. McMartin, 39 Conn.

573, - - 387, 680, 685

V. Richards, Busb. (N.

Ca.) Eq. 277, - - 716, 733

V. Sbute, 5 Burr. 3611, - 454,

457

V. Wolff, 65 Wis. 1, - 515

V. Woods, 21 Pick. 30, 383, 385

Rich T. Davis, 4 Cal. 23, - 353, 353

V. Davis, 6 Cal. 141, - 353

V. Davis, 6 Cal. 163, - 150, 154

V. FJanders, 39 N. H. 304, 701,

1140

V. Husson, 4 Saridf. 115, 1168

V. Roberts, 48 Me. 548; 50

id. 395, - - . 179

Richards v. Baurman, 65 N.

Ca. 163, - ' 573, 577, 998

T. Burden, 59 Iowa, 733, - 795

V. Butler, 65 Ga. 593. 638

V. Davies, 8 Russ. & M.

347, - - . . 910, 913

V. Fisher, 3 Allen, 537, 383,

635, 884
V. Grinnell, 63 Iowa, 44

(50 Am. Rep. 737), 33, 303,' 815,
949, 951

V. Haines, 30 Iowa, 574, 1106,

' ■ 1118
V. Heather, 1 B. & Aid.

29. - - - 714, 734, 746

V. Hunt, 65 Ga. 343, - 628

V. Hunter, 3 B. & B. 303, 724

V. Manson, 101 Mass. 483, 385,

■ 560, 584

V. Todd, 137 kass. 167, 595, 775,

780, 805, 897
Richardson, Ex parte, 3 Madd.

138, - .... 600

, Re, 5 L. J. Ch. 139, - 906

, Ee, 11 Bankr. Reg. 114, 1181

V. Adler, 46 Ark. 48, - 1131

V. Bank of England, 4

Myl. & Cr. 165, 851, 888, 971
V. Coddington, 49 Mich. 1, 496

Richardson v. Dickinson,
Foster (36 N. H.), 317, -

V. Farmer, 36 Mo. 35,

V. French, 4 Met. 577,

V. Fuller, 3 Oreg. 179, -

- — V. Hastings, 7 Beav. 333,
V. Huggins, 33 N. H. 106,

6

- 169
166, 445
341, 483

- .377
^U

200,
453
V. Hughitt, 76 N. Y. 55 (33

Am. Rep. 367), - 33, 47, 49
V. Humphreys, Minor

(Ala.), 383, - - 449

V. Lester, 83 111. 55, - - 406

V. Moies, 31 Mo. 430, 694, 698,

707

V. Pitts, 71 Mo. 138, - 5

V. Smith.'Sl Fla. 336, - 1049

V. Snider, 73 Ind. 435 (37

Am. Rep. 168), 635

V. Tobey, 3 Allen, 81, 557, 560

V. Turner, 36 Mo. 35, 157

V. Wyatt,.2 Desaus. 471, 290,

761, 764, 766, 978, 979
Riches, Re, 5 N. R. 287, 363

Richmond v. Heapy, 1 Stark.

203, - 1035, 1038

V. Judy, 6 Mo. App. 465, 75

Richter v. Poppenhausen, 43

N. Y. 373 (9 Abb. Pr. N. S.

363; 39 How. Pr. 83), 52, 53, 747,

750
Rick V. Neitzy, 1 Mackey (D.

p.), 31, - - - - 909

Ricker v. American Loan &

Trust Co. 140 Mass. 346, 73

Ricketts v. Bennett, 4 C. B. 686, 330
Rickey v. Bowne, 18 Johns.

181, .... 899

Ridenour v. Mayo, 40 Oh. St.

9, - - - 6, 1158

Ridgen v. Herce, 6 Mad. 353, 974
Ridgway v. Clare, 19 Boav.

Ill, - - - 828

V. Grant, 17 111. 117, - 890

Rieser, Re, 19 Hun, 202, - 836, 837
Rigden v. Pierce. 6 Madd.

353, S44-

cl

Big.]

TABLE OF CASES.

[Rob.

Eigg^ V. Hawley, 116 Mass.
596, ... 958

Eiley v. Noyes, 45 Vt. 455, 469

Rimel v. Hayes, 83 Mo. 200, 91, 98,
109, 317, 1151

Riprr V. Poppenhausen, 43 N.
Y, 68 (see Richter v. Poppen-
hausen), - - 750

Ripley t. Colby, 23 N. H. 438, 1142

V. Kingsbury, 1 Day, 150,-

n. a, - - 43^

V. People's Savings Bank,

18 111. App. 430. - - 1103

V. Thompson, 12 Moore,

55, .... 1168

Rippey V. Evans, 32' Mo. 157, 101,

109
Rishton v. Grissell, L. R. 5 Eq.

326, . 781, 922

Ritchie v. Kinney, 46 Mo. 298, 547

v. Moore, 5 Munf. (Va.)

388 (7 Am. Dec. 688), - 1081

Rittenhouse v. Leigh, 57 Miss.

697, 97, 136

Rix, Ex parte, Mont. 237, - 835

r V. Elliot, 1 N. H. 184, 1125

Rizer v. James, 26 Kan. 221, - 04,

1155
Roach v. Brannon, 57 Miss.

490, 726, 728, 7,31, 746, 1117, 1120

v. Ivey, 7 S. Ca. 434, 570, 955,

959, 963

V. Perry, 16 111. 37, 181, 770

Roache v. Pendergast, 3 Har. '•

& J. 33, - . - - - 575

Eoakes v. Bailey, 55 Vt. 542, - 612
Robb V. Bailey,' 13 La. Ann.

457, 1067

v. Mudge, 14 Gray, 534, 503,

' *' 551, 691, 832
v. Stevens, Clarke, Ch. (N.

Y.) 191,' - - 552, 560, 834

Bobbins v. Fuller, 24 N. Y.

570, - - 681, 686; 687, 689

V. Laswell, 27 111. 865, 35, 56;

316, 357, 973
V. Willard, 6 Pick. 464, - 1151

Roberts' Appeal, 93 Pa. St.

407, - 317, 331, 329, 363, 424
Roberts v. Adams, 8 Porter

(Ala.), 397 (33 Am. Dec. 391),

V. Atwood, 8 B. Mon. 309,

T — V. Barrow, 53 Ga. 314,
-^— V. Cuffln, 2 Atk. 113,

V. Pitler, 13 Pa. St. 265,

V. Griswold, 35 Vt. 496,

V. Johnson, 58 N. Y. 613,

V. Kelsey, 38 Mich. 603, -

691

1073
367
960
850
650,
655
471
580,
788'

V. Law, 4 Sandf. '(N. Y.)

643, - - 738

V. McCarty, 9 Ind. 16, 383, 890,

833

V. McKee, ,29 Ga. 161, 990

V. Oldham, 63 N. Ca. 397, 848,

1114

V. Pepple, 55 Mich. 3S7, 347.

1094

V. Ripley, 14 Conn. 543, 884, 893

V. Roberts, 8 Rich. L. 15, 847

V. Rowan, 3 Harr. (Del.)

314, - 1049

V. Shepard, 2 Daly, 110, 339

'v. Spencer, 138 Mass. 397, 617,

621

V. Strang, 38 Ala. 566, 385, 534

V. Totten, 18 Ark. 609, 761, 764,

961, 964

V. Yarboro, 41 Tex. 44'9, 1170

Robertshaw v. Hanway, 53

Miss. 713, - 390, 719, 746, 1131
Robei-tson v. Baker, 11 Fla.

193, - 381, 551, 559, 561

V. Corsett, 39 Mich. 777, 173,

383

V. Findley, 31 Mo. 884. - 634

V. Gibb, 38 Mich. 165, 970, 988

V. Jones, 30 New Bruns-
wick, 367, - - - 446

. V, Lockie, 15 Sim. 385 ; 10

Jur. 583, - - 574, 581

V. Mcllhenny, 59 Tex. 615, 1029

V. Miller, 1 Brook. 438^ - 317

cli

Rob.]

TABLE OF CASES.

[ROG.

Robertson v. Mills, 3 Harr. &

Gill, 98, - - - 1163
V. Quiddington, 28 Beav.

539, - - - 657, 673

V. Read, 17 Gratt. 544, - 810

V. Smith, 18 Johus. 459, 535

Robins v. Warde, 111 Mass.

344, - 081, 1147

Robinsou's Case, 6 DeG. M. &

G. 573, ... 73

Robinson, Ex parte, 3 Dea. &

Ch. 376; 1 Mont. & A. 18, - 755

V. Aldridge, 34 Miss. 353, 347,

361, 363
V, Anderson, 20 Beav. 98 ;

7 D. M. G. 839, 181, 770, 780

V. Ashton, L. R. 30 Eq. 35, 356,

284

V. Bland, 3 Burr. 1086. - 758

V. Bullock, 58 Ala. 618, 61, 876

V. Crowder, 4 McCord (S.

Ca.), L. 519 (17 Am. Dec.

763), 299, 338, 340. 417, 418
V. Crowder, IBail. (S. Ca.)

185, - - - - 1130
V. Davison, L. R- 6 Exch.

369, - 334. 770, 780

V. Gilflllan, 15 Hun, 367, < 361,

274, 981
V. Gleadow, 2 Bing. N.

Cas. 156, .... 409

V. Goings, 63 Miss. 500, - 466,

467, 4C8
V. Green, 5 Harr. (Del.)

115, - 854, 1135, 1136, 1139

V. Gregory, 39 Barb. 560, 340

V. Haas, 40 Cal. 474, ; 63, 1143,

1153

V. Hall, 3 Met. 301,

V. Hofman, 4 Bing. 562;

1 Moo. & P. 474,

V. McFaul, 19 Mo. 549, -

V. Mcintosh, 3 E. D.

Smith, 23,

V. Magarity, 28 111. 423, -

V. MansfielJ, 13 Pick. 139,

V. Marchant, 7 Q. B. 918,

- 1138

381
1167

1015

191

1022

1033

Robinson v. Moriarity, 3 G.

Greene (Iowa), 497, - - 543

V. Robinson, 10 Me. 340, - 458

V. Taylor, 4 Pa. St. 343, - 695

V. Tevis, 38 Cal. 611, 186, 1102,

1103
v. Thompson, 1 Vernon,

465, - 432, 958
V. Thompson, Sm. & Mar.

Ch. (Miss.) 454, - - 722
V. Turner, 3^ G. Greene

(Iowa), 540, - - 1162

V. Ward, 13 Oh. St. 393, 176

V. Wilkinson, 3 Price,

538, - - - - 420, 535

V. Williams, 8 Met. 454, 858, ,

863

V. Worden, 33 Mich. 316, 623

V. Wright, Brayton (Vt.),

23, - - - 738

Robley v. Brooke, 7 Bligh, 90, 365
Robson V. Curtis, 1 Stark. 78, 853,

873
— —'v. Drummond, 3 B. & Ad.

303, - 710, 1030

Rochester v. Monteath, 1 Den.

403 (43 Am. Dec. 681), - 193
V. Trotter, 1 A. K. Mar.

(Ky.)54, - - 361

Rockwell V. Wilder, 4 Met.

556, - 861, 864, 881

Roddin, Re, 6 Biss. 377, - 452, 829
Roden V. Roland, 1 Stew. (Ala.)

266, - - ■ 1131

Rodes V. Rodes, 6 B. Mon.

400, 766

Rodgers y. Maw, 15 M. & W.

444; 4 Dow. & L. 66, 533, 533

V. Meranda, 7 Oh. St. 179. 834,

825, 828, 832, 836, 837
Rodriguez v. HefiEernan, 5

Johns. Ch. 417, - - - 184
Rogers v. BatchelcSr, 12 Pet.

231, - - - 1038, 1046

V. Coit, 6 Hill, 333, - 441

V. Nichols, 20 Tex. 719, - 363,

552, 554,1101, llOa

dii

EOG.]

TABLE OF CASES.

[Eow.

Rogers v. Nuckolls, 3 Colorado,

281, 1073

V. Rogers (Conn.), 21 Rep.

394, 674

V. Rogers, 5 Ired. (N. Ca.)

Eq. 31, - - 900, 905

V. Suttle, 19 111. App. 168, 1145,

1154

V. Taintor, 97 Mass. 291, 198,

670, 671
Rolirbough' v. Reed, 57 Mo.

293, - 1065
Rolfe V. Dudley, 58 Mich. 208, 465
V. Flower, L. R. 1 P. C.

27, - - - 512, 520

V. Rolfe, 15 Sim. 88, - 677

Rollins V. Stevens, 81 Me. 454, 349,

358
Rolston V. Click, 1 Stew. (Ala.)

536, - - - 349, 362

Romain v. Garth, 3 Hun, 214, 383

Roney v. Buckland, 4 Nev. 45, 341,

370, 372, 1170

Rooke V. Nisbet, 50 L. J. Ch.

588; 29 W. R. 843, 803, 804

Roop V. Herron, 15 Neb. 73

(commented upon in 17 id.

489), - 173, 553, 562, 563, 593

V. Rogers, 5 Watts, 193, 1115

Roosvelt V. McDowell, 1 Ga.

489, - - 750

Root V. Gay, 64 Iowa, 399, 257, 1133
Rootes V. Wellford, 4 Munf.

(Va.)215, - - 700

Rooth V. Quin, 7 Price, 193, 385, 618
Roots V. Salt Co. 27 W. Va.

483, - 406, 689, 693, 694, 770
Ropes V. Upton, 135 Mass. 258, 676,

•678
Rose V. Baker, 13 Barb. 230, - 447,

524, 537
V. Coffleld, 53 Md. 18 (36

Am. Rep. 389), - - 613, 618

V. Gunn, 79 Ala. 411, 727, 737

V. Keystone Shoe Co.

(Sup. Ct. Pa. 1886) 18 Weekly^

Notes, 565, - - - - 567

Rosenfeld v. Haight, 53 Wis.

260 (40 Am. Rep. 770), 17, 49, 50
Rosenkrans v. Barker, 115 111.
' 331, - 466, 467, 46^, 469

Eosenstiel v. Gray, 112 111. 383, 161,
167, 184, 917, 918, 931, 971, 973
Rosenzweig v. Thompson, 66

Md. 593, - - - 924, 926

Ross V. Cornell, 45 Cal. 133, 570,

849, 852, 859

V. Drinker, 2 Hall, 415, - 43

V. Everett. 12 Ga. 30, - 1055

V. Henderson, 77 N. Ca.

170, 184, 385, 291, 295, 824, 1099,
1111, 1113

V. Howell, 84 Pa. St.

139, ... 377
V. McLauchlan, 7 Gratt.

86, - - 963
V. Parkyns, L. R. SO Eq.

331, 43

V. Pearson, 31 Ala. 473, 723,

736, 738
V. Titsworth, 37 N. J. Eq.

333, - - 834, 935, 1006

V. West, 2 Bosw. 860, - 893

Roth V. Colvin, 32 Vt. 135, 328, 352,

354

V. Moore, 19 La. Ann. 86, 446

Roth well V. Humphreys, 1

Esp. 406, - - - 370

Roulston V. Washington, 79
" Ala. 529, - - - . 908
Routen v. Bostwick, 59 Ala.

360, 980

Routh V. Peach, 3 Anstr. 637, 234

V. Webster, 10 Beav. 561, 672,

990
Rowand v. Eraser, 1 Rich. (S.

Ca.) L. 325, - - 543

Rowe V. Wood, 3 Jaq. & W.

589, 313

Rowland, Re, L. R. 1 Ch. App.

431, ----- 105

V. Boozer, 10 Ala. 690, 301, 303,

893
V. Long, 45 Md. 489, - 41, 5o

cliii

Row.]

TABLE OF, CASES.

[Sag.

Rowland v. Header Furniture

Co. 38 Oh. St. 269, - - 4

,v. Miller, 7 Phila. 362, - 812

Rowlands v. Evans, 30 Beav.

202, - - . . 581, 977
Rowlandson, Ex parte, 1 Rose,

89, - - ■ - 16, 44

Rowley v. Adams, 8 Jur. 994, 288

V. Stoddard, 7 Johns. 207, 385

Rowsey v. Lynch, 61 Mo. 560, 686
Royal Canadian Bank v. Wil-
son, 24 Up. Can. C. P. 362, 199,
354, 360, 362
Royer v. Aydelotte, 1 C. S. C.

R. 80, ■ - 480

Roys V. Vilas, 18 "Wis. 169, 722, 731,

743, 976
Royster v. Johnson, 73 N. Ca.

474, - - 772, 919

Ruckman v. Decker, 23 N. J.

Eq. 283 (rev. in part, 28 id.

614), - 35, 331, 391, 685

Ruddick v. Otis, 33 Iowa, 402, 43,

56, 1170
Ruffin, Ex parte, 6 Ves. 119, 544,
550, 551, 559, 679.
RufCner v. Hewitt, 7 W. Va.

585, .... 680

V. Hewitt, 14 W. Va. 737, 938

V. McConnel, 17 III. 212

(63 Am. Dec. 362),
Ruhe V. Burnell, 121 Mass. 450,

299
1151,
1152

Ruhl V. Phillips, 2 Daly, 45, - 566
Rumery v. McCuUooh, 54 Wis.

565, - 338, 839, 340

Runyon v. Brokaw, 5 N. J. Eq.

340, 234

Rupp, Re, 4 Bankr. Reg. 25, - 1131
Rushing v. Peoples, 42 Ark.

390, - 257, 260

Rusbton V. Ro we, 64 Pa. St. 63, 1 124
Russ V. Fay, 29 Vt. 381, - 1105

Russell V. Annable, 109 Mass.

72 (12 Am. Rep. 665), - 321, 347

416, 423

V. Byron, 2 Cal. 86, - 849, 856

Russell V. Convers, 7 N. H. 348, 1045

V. Green, 10 Conn. 269, 32, 382,

490, 788, 982

V. Grimes, 46 MO. 410, 887, 893

V. Leland, 12 Allen, 349, - 585,

904

V. Lennon, 39 Wis. 570

(20 Am. Rep. 60), - 1131, 1132
V. Miller, 26 Mich. 1, - 545

V. Minnesota Outfit, 1

Minn. 162, - - 70, 884, 892-

V. Perkins, 1 Mason, 368, 655

V. Russell, L. R. 14 Ch. D.

471, • - - 233, 241

V. Swan, 16 Mass. 314, - 1017

Rust V. Chisholm, 57 Md. 376, 285,

"707
V. Hauselt, 9 Jones & Sp.

467 (affd. 76 N. Y. 614), 347, 363
Ruth V. Lowrey, 10 Neb. 260, 825,

1066
Rutland Marble Co. v. Ripley,

10 Wall. 339, - 571, 991

Rutledge v. Squires, 23 Iowa,

53, 347, 447

Rutter V. Sullivan, 25 W. Va.

427, - - - 1050

Ryder V. Gilbert, 16 Hun, 163, 181,

446, 1114

V. Wilcox, 103 Mass. 24, 17, 32,

35, 873, 878
Ryerson v. Hendrie, 22 Iowa,

480, - . -.
Ryhiner v. Feickert, 92 111. 305

(84 Am. Rep. 180),

s.

315

- 1142

Sabin v. Cooper, 15 Gray, 533,
Sadler, Ex parte, 15 Ves. 53, -

■ V. Lee, 6 Beav. 324,

1125
833,
834
471, 474;
480, 581

V. Nixon, 5 B. & Ad. 936, 853

Sage V. Chollar, 21 Barb. 596, 560
V. Ensign, 3 Allen, 3i5, - 705

cliv

Sag.]

TABLE OF CASES.

[Sar.

Sage V. Sherman, 3 N. Y. 417, 201,
a79, 293, 399, 332, 1050

V. Woodin, 6G N. T. 578, 743

Sager v. Tupper, 38 Mich. 358, 1143,
1144, 1155, 1159
Sailors v. Nixon-Jones Printing

Co. 20 111. App. 509, - 17, 88

St. Armand v. Long, 35 La.

Ann. 167,
St. Aubyn v. Smart, L, R. 3

Ch. App. 646,
St. Barbe, Ex parte, 11 Vfe. 413,
St. Denis v. Saunders, 36 Mich.

369, - , 61, 970

St. James Club, 3 De G. M. &

G. 383,
St. John V. Hendriokson, 81

Ind. 350,

V. Holmes, 30 Wend.'oog,

St. Louis Ins. Co. v. St. Louis,

Vandalia, etc. E. E. 104 U. S.

146 (3 Am. & Eag. E. R. Cas.

562), - -

St, Louis Type Foundry v. Wis-
dom, 4 Lea, 695,
St. Nicholas Bk. v. Savery, 13

Jones & Sp.(45 N. Y. Superior

Ct.) 97, - 358, 362

St. Victor V. Daubert, 9 La.

314, - - 43

Sale V. Dishman, 3 Leigh (Va.),

548, - 420, 432, 747, 750

Salmon v. Davis, 4 Binn. (Pa.)

875 (5 Am. Dec. 410), 381, 1035

Saloy V. Albrecht, 17 La. Ann.

75; - 563, 566, 583, 756

Salsbury v. Ellison, 7 Colorado,

167 (49 Am. Eep. 347), - 736, 733
Salt Co. V. Guthrie, 35 Oh. St.

666, - - 113

Salter V. Ham, 31 N. Y. 331, 47

Saltmarsh v. Bower, 33 Ala.

231, - - - 351,370,448,
Saltoun V. Houstoun, 1 Bing.

433, 239, 457, 635, 643, 879

Sampson v. Shaw, 101 Mass.

145, - - - 113,119,749

156

474
837

75

897
380

66

494

1106

677
581
496
407
788
584,

Sanborn v. Dwinell, 135 Mass.

336, - -
V. Eoyce, 132 Mass. 594

(21 Am. Law Reg. N. S. 799),
V. Sanborn, 11 Grant's

Ch. (Up. Can.) 359, - 290, 297
Sander v. Hoflfman, 64 N. Y.

248 (rev. 7 J. & Sp. 307),

V. Sander, 2 Coll. 376, -

Sanders v. Knox, '57 Ala. 80, -

V. Pepoon, 4 Fla. 465,

V. Scott, 63 Ind. 130,

V. Young, 31 Miss. Ill, -

1101, 1105, 1109
Sanderson v. Milton Stage Co.

18 Vt. 107, - 575, 607

V. Sanderson, 17 Fla. 830, 789,

793, 935, 947

V. Sanderson, 30 Fla. 393, 787,

793

V. Stockdale, 11 Md. 563, 563,

563, 929
Sandham, Ex parte, 4 Deac. &

Ch. 813, - - 513

Sandusky, Re, 17 Bankr. Reg.

453, - - - 847, 848

Sandy v. Randall, 30 W. Va.

344, - - 949

Sanford v. Mickles, 4 Johns.

334, .... 690, 695

Sanger v. Overmier, 64 Tex.

57, ... 1086, 1088, 1091

Sangster v. Mazarredo, 1

Stark. 161, ... 331

Sangston v. Hack, 53 Ind. 173, 43,

316, 217, 775, 785, 789, 814, 952, 978
San Jose Indiano, 3 Gall. 368, 191,

793
Sankey v. Columbus Iron

Works, 44 Ga. 328, 32, 43, 1151,

1158
Sanson v. Lathrop, 25 Barb.

455,

Santa Clara Min. Ass'n v.

Quicksilver Min. Co. 17 Fed.

Rep. 657 ; 8 Sawy. 330, -
Sarchet v, Sarcbet, 2 Oh, 320,

825

907
930

civ

Sab.]

TABLE OF GASES.

[SCO.

Sargent v. Collins, 3 Nev. 260, 1150

V. Downey, 45 Wis. 498, - 68

V. Franlclin Ins. Co. 2

Pick. 90, - . - . 333
Satterthwait v. Marshall, 4

Del. Ch. 337, - - - 1013, 1013
Saufley .v. Howard, 7 Dana,

867, - - 80, 84, 101, 833, 459
Saul V. Kruger, 9 Hpw. Pr. 569, 377
Saunders v. Bartlett, 13 Heisk.

316, - - - 1105

V. Bently, 8 Iowa, 616, - 1086

V. Duval, 19 Tex. 467, 978, 979

V. Eeilly, 105 N. T. 13, 190,

565, 567, 834, 829, 1130

V. Wood, 15 Ark. 34, 930, 938

Sauntry v. Dunlap, 13 Wis.

864, 1045

SauthoflE, Re, 8 Biss. 35; 16

Bankr. Reg. 181; 5 Am. Law

Rec. 173, - 560, 564, 1131, 1133

. Re, 16 Bankr. Reg. 316, - 566

Savage, Re, 16 Bankr. Reg. 36y, 825,

836, 837

V. Carter, 9 Dana, 408, - 188,

550, 553, 766, 973, 1111

: V, Putnam, 33 N. Y. 501, 187,

534,
Savannah v. Hines, 53 Ga. 616, 175
Savery v. Thurston, 4 111.

App. 55, - 331, 815

Saville v. Robertson, 4 T. R.

720, - ■ -^' 80

Savings Bk. v. Wulfekuhler,

19 Kan. 60, - - 394

Savings & Loan Soo. v. Gibb,

21 Cal. 595, - - 569

Sawyer v. Proctor, 2 Vt. 580, - 899

V. Tappan, 14 N. H. 353, - 495

Sayer v. Bennett, 1 Cox, 107, - 581
Saylor v. Mockbie, 9 Iowa, 209, 544,
994, 1002
Sayre v. Peck, 1 Barb. 464, - 960
Scanlon v. Union F. Ins. Co.

4 Biss. 511, - - - 271

Scarf V. Jardine, L. R. 7 App.

Cas. 345, 109, 517, 613, 636, 1054

SchaeflEer v. Fithian, 17 Ind.

463, • - "^ - - 568, 824

Sohalck V. Harmon, 6 Minn.

365, - 180, 680, 754, 824, 1111
Scharringhausen v. Lueljsen,

53 Mo. 337, - - - - 247
Schenkl v. Dana, 118 Mass.

236, - - - 772, 773

Schermerhorn v. Schermer-

horn, 1 Wend. 119, - 349, 362
Schiele v. Healy, 61 How. Pr.

73, 561, 566

Schlater v. Winpenny, 75 Pa.

St. 321, - - 611, 621, 708

Schmidlapp v. Currie, 55 Miss.

597 (30 Am. Rep. 530), 565, 568, 835
Schmidt V. Lebby, 11 Rich. Eq.

339, ,- - 955

Schraertz v. Shreeve, 62 Pa.

St. 457 (1 Am. Rep. 439), 416, 418
Schnader v. Schnader, 26 Pa.

St. 384, .... 1163

Schneider v. Sansom, 63 Tex.

201 (50 Am! Rep. 521), - - 403
Scholefield v. Eichelberger, 7

Pet. 586, - - 580, 598

Schoneman v. Fegley, 7 Pa. St.

433, 696

Schooner Ocean Belle, 6 Ben.

353, - - - 908

Schooner Steelman, 5 Hughes,

C. C. 310, - 496 _

Schorten v. Ddvis, 31 La. Ann.

173, - - - - 613

Schreiber-v. Sharpless, 6 Fed.

Rep. 175, - - - 468

Schriber v. Bapp, 5 Watts,

351, 13

Schuchardt, Ip. re, 15 Bankr.

Reg. 161, '- - - 473

Schulte v.^ Anderson, 13 Jones

& Sp. 489 (45 N. Y. Superior

Ct.), - - - 810,817

Schwabacker v. Riddle, 84 111.

517, - - - - 473a

Scott's Appeal, 88 Pa. St. 173, 532,

845, 846

clvi

SCO.]

TABLE OF CASES.

[See.

Scott V. Bandy, 3, Head, 197, - 349,

364, 1168

V. Beale, 6 Jur. N. S. 559, 497

V. Bogart, 14 La. Ann.

261, - - 1085

V. Campbell, 30 Ala. 72S, 26,

850, 874, 876

V. Caruth, 50 Mo. 130, 849, 853,

858

V. Clark, 1 Oh. St. 383, 169, 770

V. Colmesnil, 7 J. J. Mar.

416, 156, 157, 454, 535, 535, 608

V. Conway, 58 N. Y. 619, 139,

1053

V. Dansby, 13 Ala. 714, 347,

363, 1153

V. Goodwin,' 1 B. & P. 67, 1016

V. Green, 89 N. Ca. 378, 904,

905

V. Jones, 5 Ala. 694, - 1167

V. Kenan, 94 N. Ca. 396, - 1131

V. Mcintosh, 3 Camp. 338, 865

V. McKinney, 98 Mass. 344, 365

V. Miller, H. V. Johns. 330, 110

V. Pinkerton, 8 Edw. Ch.

70, - - - 930, 938

Y. Ray, 18 Pick. 360, 495

V. Rayment, L. R. 7 Eq.

113, - - - - 870, 1013
V. Rowland, 36 L. T. N.

S. 391 ; 20 W. R. 508, - 671, 673
V. Seai-les, 5 Sm. .& Mar.

35, - - 738

V. Shlpherd, 3 Vt. 104, - 384,

406, 449, 979

V.Trent, 1 Wash. (Va.) 77, 413,

1079
V. Trent, 1 "Wash. (Va.)

536, - - - - 381
V. Tupper, 8 Sm. & Mar.

280, 731, 733, 741, 1001

Scottin V. Stanley, 1 Dall. 129, 70
Scotto V. Bryan (N. Ca. 1887) ;

3 S. E. Rep. 235, - - - 760
Scovill V. Kinsley, 13 Gray, 5, 640
Scripture v. Gordon, 7 Up.

Can, C. P. 164, - - - 853

Scroggs V. Cunningham, 81

111. 110, - - . - 788

Scruggs V. Blair, 44 Miss. 406, 281,

394, 297, 1117

V. Burruss, 35 W. Va. 670, 338,

1099, 1111

V. Russell, McCahon

(Kan.), 39, - 281, 301, 790

Scrugham v. Carter, 12 Wend.

131, - 1105, 1109, 1111

Scudder v. Ames, 89 Mo. 496, 743,

770

V. Delashmut, 7 Iowa,

39, .... 188, 550

Scull's Appeal (Pa. 1886), 7 Atl.

Rep. 588, . 106, 1149

Scull V. Alter, 16 N. J. L. 147, 519,
556, 558, 843
Sculthorpe v. Bates, 5 Up.

Can. Q. B. 318, . 1149

Seabrook v. Rose, 3 Hill (S.

Ca.), Ch. 553, 70

Seaman v. Ascherman, 57

Wis. 547, 330, 335

V. Huffaker, 31 Kan. 354, 188,

550

V. Johnston, 46 Mo. Ill, . 868

V. Waddington, 16 Johns.

510,
Sears v. Munson, 23 Iowa, 380,

583
63,
773
Sechel v. Mosenthal, 30 Beav.

871, - . 1010

Second Nat'l Bk., Appeal of, 83

Pa. St. 303, - - . 389

Second Nat'l Bk. v. Farr (N.

J.), 7 Atl. Rep. 893, - - 560
Secor V. Keller, 4 Duer, 416, . 1033
Sedam v. Williams, 4 McLean,

51, - . - 504, 535, 552

Sedgwick v. Lewis, 70 Pa.>St.

217, . . 352

Seekell v. Fletcher, 63 Iowa,

333, . 201,439,444,1158

Seeley v. Boehm, 2 Madd. 176, 935
Seely v. Schenck, 3 N. J. L. 75, 1018,

1065

clvii

Ske.]

TABLE OF CASES.

[Sha.

Seely v. Beck, 43 Mo. 143, - 111
Seelye v. Taylor, 33 La. Ann.

1115, - 849

Seguin's Appeal, 103 Pa. St. 189, 485
Seighortner v. Weisseuborn,
■ 30 N. J, Eq. 173 (rev. in part

in 31 id. 483), 577, 591, 593, 851

Selden v. Bank of Commerce,

3 Minn. 168, - 349, 363

Seldner v. Mt. Jackson Nat'l'

Bk. 66 Md. 468, - 399, 696

Seligman v. Kalkman, 17 Cal.

153, - - - 753, 935

Selking v. Jones, 53 Ind. 409, 381
Sellers v. Streater, 5 Jones, L.

361, - 416, 431

Sellew V. Chrisfield, 1 Handy,

86, - - - 1117

Sells V. Hubbell, 3 Johns. Ch.

394, - - 531, 739
Selzer v. Beale, 19 W. Va. 374, 969,

981
Sessions, Ex parte, 2 Up. Can.

Chy. Cham. 360, - - 743

Sessums v. Henry, 38 Tex. 37, 439
Settembre v. Putnam, 30 Cal.
490, 167, 187, 793, 795, 930, 931,

933
Settle V. Davidson, 7 Mo. 604, 430,

431
Setzer v. Beale, 19 West Va.

374, 158, 164, 165, 166, 771, 981

Seward v. L'Estrange, 36 Tex.

395, 536, 694
Sewell V. Cooper, 31 La. Ann.

583, - -881

Sexton V. Lamb, 37 Kan. 436, 254,

780

V. Sexton, 9 Grait. 304, - 309

Seybold v. Green wald, 1 Dis-
ney, 425, - 333, 370
Seymour v. Butler, 8 Iowa,
304, - - - 386, 387

V. Freer, 8 Wall. 203-315, 43

V. Marvin, 11 Barb. 80, - 489

V. Western E. E. Co. 106

U. S. 320, .... 1016

Shaaber v. Bushong, 105 Pa.

St. 514, 349

Shackelford v. Shackelford, 33

Gratt. 481, 553, 553, 554, 559, 500,
834, 9; 8
Shackleford v. Clark, 78 Mo.

491, - - - 836,848

Shafer's Appeal, 99 Pa. St. 346, 507
Shafer's Appeal, 106 Pa. St. 49, 389,

543, 868
Shafer v. Hockheimer, 36 Oh.

St. 315, 318, - - - - 1063
V. Randolph, 99 Pa. St.

250, - ' 101

Shaffer v. Snyder,, 7 S. & R.

503, - - - - 633

Shaler v. Trowbridge, 38 N, J.

Eq. 595, - - 544, 790, 791

Shamburg v. Abbott, 113 Pa.

St. 6, - - 73, 533

v. Kuggles, 83 Pa. St. 148, 153,

507, 510, 511, 513, 609

Shanahan, Re, 6 Biss. 39, - 754

Shanks V. Klein, 104 U. S. 18, 381,

294, 300, 733

Shannon v. Wright, 60 Md.

530, - - 994

Shapard v. Lightfoot, 56 Ala.

506, 1085, 1086, 1093

Sharp V. Hibbins, 43 N. J. Eq.

543, - - 545,931,937

V. Taylor, 3 Phil. 801, 114, 135,

136
Sharpe v. Cummings, 3 Dow;

& L. 504, ... 181

V. Johnston, 59 Mo. 557, 277,

543
Shattuck V. Lawson, 10 Gray,

405, - . - 641, 859, 864
Shatzill V. Bolton, 2 McCord,
' L. 478 ; 3 McCord, L. 33, - 1103
Shaver v. Upton, 7 Ired. L.

458, .... 779
V. White, 6 Munf. (Va.)

110, - - 1100, 1101, 1105

Shaw, Ex parte, 1 Glyn. &

Jam. 127, - - - - 383

clviii

Sha.]

TABLE OF CASES.

[Sho.

Shaw V. Farnsworth, 108 Mass.

357, 299

V. Gait, 16 Irish Com, L.

357, 48

- — V. Gandolfo, 9 La. Ann.

32, 819

V. IfcDonald, 21 Ga. 895, 184,

186, 1044

V. McGregory, 105 Mass.

96, 317, 339, 347, 510i 515, 519, 520

V. Picton, 4 B. & C. 715, - 489

V. Pratt, 33 Pick. 305, - 385

V. State, 56 Ind. 188, 269, 315

V. Vandusen, 5 Up. Can.

Q. B. 353, - - - - 655
Sliea V. Donahue, 15 Lea, 160, 229,

813

Shearer v. Paine, 13 Allen, 289, 164,

165, 166, 738

V. Shearer, 98 Mass. 107, 297

Shearman v. Hart, 14 Abb. Pr.

358, - . - - 676,678
Shed V. Brett, 1 Pick. 401, - 397

V. Pierce, 17 Mass. 638, - 386

Shedd V. Bank of Brattleboro,

83 Vt. 709, - - 377, 380, 558

V. Wilson, 37 Vt. 478, 1109

Sheedy v. Second Nat'l Bk. 63
^ Mo. 17 (31 Am. Eep. 407), - 1103
Sheehy v. Graves, 58 Cal. 449, 184
V. Mandeville, 6 Cranch,

254, ... - 535

Sheen, Ex parte, 6 Ch. D. 385, 836,

843, 846
Sheenefleld v. Button, 85 111.

508, . . . - -
Sheffield Gas, etc. Co. v. Har-
rison, 17 Beav. 394, - ' -
Sheldon v. Smith, 38 Barb. 598,
Shellito V. Sampson, 61 Iowa,

40, -

Shelmire's Appeal, 70 Pa. St.

281, ... - 946,1154
Shelton v. Cocke, 8 Munf.

(Va.)191, -- - - 700,705

V. Knight, 68 Ala. 598, 770, 772,

778

879

1013
,339

404

Shepard, Matter of, 3 Ben. 347, 553

V. Pratt, 16 Kan. 309, 43, 1158

V. Richards, 3 Gray, -434, 864

V. Ward, 8 Wend. 543, - 331

Shepherd V.Allen, 33 Beav. 577, 597

V. Frys, 8 Gratt. 443, - 1067

Sheppard v. Boggs, 9 Neb. 357, 660,

661, 974

V. Oxenford, 1 K. & J.

491, 914

Sherburne v. Goodwin, 44 N.

H. 371, 487

Sheridan v. Medara, 10 N. J.

Eq. 469, .... 47

Sherman v. Christy, 17 Iowa,
333, - - 815, 34B, 537, 1051

V. Elder, 1 Hilton (N. Y.),

178, - - - - 139, 140,

V. Kreul, 43 Wis. 33, 109, 348,

750, 1055, 1094
Sherrod v. Langdon, 21 Iowa,

518, . - - - 101, 103

Sherry v. Gilmore, 58 Wis. 334, 398
Sherwood v. St. Paul & ChL
E'y, 31 Mnn. 127, - - 301

V. Snow, 46 Iowa, 481 (26

Am. Eep. 155), 341, 348, 860, 870,
437, 447
Shiddell v. Messick, 4 B. Mon.

157, - ... 794

Shields v. Fuller, 4 Wis. 103, 716, 733

V. Oney, 5 Munf. (Va.) 550, 1050

Shimer v. Huber, \9 Bankr.

Eeg. 414, - - - 559, 560

Shine v. Central Sav. Bank, 70

Mo. 534, ... 193, 655

Shinnv. Macpherson, 58 Cal.

598, - - - 545,790

Shipman, Ee, 61 How. Pr. 518, 835
Shipwright v. Clements, 19 W.

R.599, - - ... 663
Shirley v. Fearne, 33 Miss. 658, 416
Shirreff v. Wilks, 1 East, 48, 347,

509
Shoe and Leather Bank v.
Herz, 89 N. Y. 639 (affg. 24
Hun, 360), - - - - 613

cliz

Sho.]

TABLE OF CASES.

[Sim.

Shoemaker v, Benedict, UN.

T. 176, 704

V. King, 40 Pa, St. 107, 503, 510

Shorl>e v. Beaudry, 56 Cal.

446, 5, 6, 589

Short v. Magruder, 22 Fed.

Rep. 46, 1131

V. Stevenson, 63 Pa. St. 95, 307

Shorter v. Hightower, 48 Ala.

536, 1059

Skillen v. Jones, 44 Ind. 136, - 742
Shott V. Streatfield, Moo. &

Rob. 9, 91

Shotwell V. Miller, 1 N. J. L.

95 [81], - ... 385

Shouse, Ex parte, Crabbe, 482, 562
Shropshire v. Shepperd, 3 Ala.

733, - - - - - 43
Shubrick v. Fisher, 2 Desaus.

14S, - - - - 27

Shufeldt V. Seymour, 21 III.

534, 1074

Shulte V. Hoffman, 18 Tex.

678, 1008

Shurlds V. Tilson, 2 McLean,

458, 618

Shurtleff v. Willard, 19 Pick.

202, 547

Siegel V. Chidsey, 28 Pa. St.

279, - - 439, 448, 567, 583
Siegfried v, Ludwig, 102 Pa.

St. 547, - - - - 695

Sieghortner v. Weissenborn, 20

N. J. Eq. 173 (partly reversed

in W. V. Seighortner, 21 id.

483), - ■ - - - 277, 993
Siffkin V. Walker, 2 Camp.

308, .... 439, 440
Sigler V. Enox Co. Bank, 8

Oh. St. 511, - - - 561, 568

V. Piatt, 16 Mich. 206, - 704

Sigourney v. Munu, 7 Conn.

11; id. 324, - 281,291,295,974
Sikes V. Parker, 65 N. Ca. 232, 1170,

1171

V. Work, 6 Gray, 433, 64, 287,

864, 868

Sillitoe, Ex parte, 1 Gl. & J.

374, .... 836,887
Silver v. St. L. I. M. & S. R'y,

5 Mo. App. 381 (affd. 72 Mo,

194), - - - - 865

Silverman v. Chase, 90 HI. 37, 847,

510, 515, 749, 750

Silvers v. Foster, 9 Kan. 56, - 349,

1094
Silveus V. Porter, 74 Pa. St.

448, 136

Sim V. Sim, 11 Irish Ch. 810, - 957
Simmondsv. Swaine, 1 Taunt.

549, 234

Simmons v. Curtis, 31 Me. 373, 583,

687

V. Leonard, 3 Hare, 581, - 212,

245
Simonds v. Speed, 6 Rich. L.

890, - - - 1049

v. Strong, 24 Vt. 642, 623, 624

Simonton v. McLain_, 37 Ala.

663, 931,

Simpson, In re, 9 Ch. App, 572, 563

v. Baker, 2 Black, 581, - 446

V. Chapman, 4 De G. M.

6 G. 154, - - 745, 798

V. Feltz, 1 McCord, Ch.

213 (16 Am. Dec. 603), 36, 43, 788
V. Henning, L. R. 10 Q. B.

406, - - - 841

V. Leech, 86 lU. 386, - 290

V. McDonough, 1 Up.

Can. Q. B. 157, - - 348

V. Schulte, 21 Mo. App.

639, - - - 456, 749

SimraU v. O'Bannons, 7 B.

Mon. 608, - - 849, 882, 884
Sims V. Bond, 5 B. & Ad. 389, 1020
V. Brittain, 4 B. & Ad.

375, 1020

V. Jacobson, 51 Ala. 186, 1061,

1065

V. McEwen, 27 Ala. 184, 580,

1014

V. Ross, 8 Sm. & Mar.

557, .... 1026, 1072

clx

Sim.]

Sims V. Smith, 11 Rich. (S. Ca.)-

L. 565, - 596, 681, 683, 684, 1044
V. Willing, 8 Serg. & R.

103, ... 67, 259, 363
Simsoa v. Cooke, 1 Bing. 453, 497,

653
V. Ingham, 3 B. & 0. 65;

3 Dow. & Ry. 349, 489, 490, 491,

501
Sinclair v. Wood, 3 Cal. 98, - 1147,

1158
Singer v. Heller, 40 WIb. 544, 594,

780
Singer Mfg. Co. v. Allen, 123

Mass. 467, ... - 655
Singerly v. Fox, 75 Pa. St. 113, 935
Sinsheimer v. Tobias, 53 N. Y,

Superior Ct. 508, - - 636

Sir Charles Raymond's Case,

cited in 3 Rose, 353, 355, - 167
Sirrine v. Briggs, 31 Mich. 443, 403,
405, 1101, 1106, 1113
Sitler V. Walker, 1 Freem.

(Miss.) Ch. 77, - - - 1109
Sizer v. Ray, 87 N. Y. 320, 507, 643
Skaife v. Jackson, 1 B. & C.

431, 383

Skannel v. Taylor, 13 La. Ann.

773, - - - 518; 538

Skidmore v. Collier, 8 Hun,

60. ----- - 794

Skillen v. Jones, 44 Ind. 136, 739
Skilluian v. Lachman, 33 Cal.

199, - - 163, 339, 343, 585

Skinner v. Dayton, 19 Johns.

513 UO Am. Dec. 386), (rev. 5

Johus. Ch. 351), 78, 73, 334, 416,
430, 431, 577
V. Shannon, 44 Mich. 86

(38 Am. Eep. 233), - - 1131

V. Stocks, 4 B. & Aid. 437, 1019,

1031

V. Tinker, 84 Barb. 833, 571

Skipp V. Harwood, 2 Swanst.

586, - - - - 584, nil
Skipwith V. Lea, 16 La. Ann.

247, 718

TABLE OF CASES. [Sml

Skirving v. Williams, 24 Beav.

275, 600

Slade V. Paschal, 67 Ga. 541, 47, 48,

98
Slater v. Lawson, 1 B. & Ad.

396, .... 704, 746
Slatter v. Carroll, 3 Sandf. Ch.

573, - - - 747, 750

Slaughter v. Doe ex d. Swift,

67 Ala. 494, - - - - 296

V. Huling, 4 Dana, 424, - 595

Sleech's Case. See Devaynes

V. Noble.
Slemmer's Appeal, 58 Pa. St.

168, '577

Slipper V. Stidstone, 5 T. R.

493; 1 Esp. 47, - - - 723
Sloan _v. Bangs, 11 Rich. (S.

Ca.)L. 97, - - - 1019, 1164

V. McDowell, 71 N. Ca. 356, 383,

1079, 1083, 1084
V. McDowell, 34 Oh. St.

209. - - - .425

V. Moore, 37 Pa. St. 317, 376,

404, 428, 594, 991, 994, 998
V. Owens, Lane & Dyer

Mach. Co. 70 Mo. 206, - - 407
Slocum, Re, 5 Fed. Rep. 50, - 833
V. Hooker, 13 Barb. 536

(reversing s. C. 13 id. 563), - 148
Slocumb V. Lizardi, 21 La.

Ann. 355, - - - - 398
Slop V." Lea, 18 Oh. 379, - - 535

V. Powell, Dallam, 467, - 421

V. State Bank of 111. 3 111.

428, - . - - 377,414
Slutts V. Chafee, 48 Wis. 617, 1049
Smale v. Graves, 19 L. J. (N.

S.) Ch. 157; 14 Jur. 663, - 668
Small V. Riddle, 31 Up. Can.

O. P. 373, - - - 853, 881
Smead v. Lacey, 1 Disney, 339, 504,
510, 511, 513, 530, 558, 848
Smelting Co. v. Smith, 13 E. I.

37 (43 Am. Rep. 3), - 423

Smith's Estate, 11 Phila. 131, - 580.

731

clxi

sm.]

TABLE OF CASES.

[Sra.

Smith, Ex parte, 3 Madd. 63, -

, Ex parte, 1 Glyn. & J. 74,

, Matter of, 16 Johns. 103

(1 Am. Lead. Cas. 457), (now
overruled), ....

, Re, 13 Bankr. Reg. 500, -

, Re, 16 Bankr. Reg. 113, -

V. Allen, 18 Johns. 245, -

V. Andrews, 49 111. 28, -

263
838

1105
825
971
863
184,
186
608
341

V. Ayer, 101 U. S. 820,

V. Bailey, 11 Mod. 401,

V. Barringer, 74 N. Ca.

665, - . . - 964, 967

V, Barrow, 3 T. R, 476, 723, 868

V. Black, 9 Serg. & R. 143

(11 Am. Dec. 686), - - 535
V. Blatchford, 3 Ind. 184

(53 Am. Dec. 504), . - 1070

V. Bodine, 74 N. T. 30, - 43

V. Book, 5 Up. Can. Q. B.

(O, S.)556, - - 374

V. Bryan, 60 Ga. 638, 1057, 1085

V. Bryson, Phil. (N. Ca.)

Eq. 267, 923

V. Burnham, 3 Sumner,

435, .... 150,301

V. Gaboon, 37 Me. 281, - 1104

V. Canfleld, 8 Mich. 493, -• 1049

V, Chenault, 48 Tex. 455, 1131,

1133

V. Cisson, 1 Colorado, 39, 384,

1146

V. Collins, 115 Mass. 388, 318,

338, 339, 341, 370, 440, 450, 451,
1154

V. Cooke, 31 Md. 174, 1049, 1030

V, Cooper, 5 Abb. New

Cas. 374, - . - 669, 673

V. Craven, 1 Cr. & J. 500, 80

V. Cropper, L. R. 10 App.

Cas. 349, ...

V. Danvers, 5 Sandf . 669,

v. Dennison, 101 111. 531,

1071
283

680,
687

— V. Duke of Chandos, Bar-
nardiston, 419; 3 Atk. 458, -

213

Smith V. Edwards, 2 Har. & Or.

(Md.)411, .... 1149
V. Edwards, 7 Humph.

(Tenn.)106, .... 551

V. Emerson, 43 Pa. St. 456, 1111

V. Evans, 37 Ind. 536, 184, 187,

937

V. Everett, 136 Mass. 304, 595

V. Everett, 27 Beav. 446, 658,

659, 664, 665, 743
V. Exchange Bank, 36 Oh.

St. 141, 637

V. Fagan, 17 Cal. 178, 73, 591

V. Felton, 43 N. Y. 419, - 453

V. Garth, 33 Ala. 368, . 47

V. Goldsworthy, 4 Q. B.

430, 484

V. Gregg, 9 Neb. 313, - 1061

V. Griffith, 3 Hill, 333,- - 1155

V, Hall, 5 Bosw. 319, . 394

V. Harris, 76 Ind. 104, - 1131

V. Hazleton, 34 Ind. 481, 761,

780, 810, 938

V. Hill. 13 Ark. 173, . 437

V. Hill, 45 Vt. 90 (13 Am.

Rep. 189), - ... 98
V. Hoffman, 3 Cranch, C.

a 651, ... .446

V. Hollister, 32 Vt. 695, 76, 1033,

1185, 1146

V. Hood, 4 111. App. 360, 446,

507, 503
V, Howard, 20 How. Pr.

121, - - - 556, 569

V. Howell, 6 Exch. 730, . 638,

640

V. Hulett, 65 111. 495, . 1151

V. Jackman, 138 Mass.

143, .... 617, 621

V. Jackson, 3 Edw. Ch. 38, 385

V. Jameson, 5 T. R. 601, - 487

V. Jeyes, 4 Beav. 503, 990, 994

■ V. Jones, 12 Me. 332, - 345

V. Kerr, 3 N. Y. 144, 293, 416,

417
V. Knight, 71 HI. 148 (33

Am. Rep. 94), - 28, 47, 1167

clxii

Sml]

TABLE OF CAGES.

[Sne.

Smith V. Ledyard, 49 Ala. 279, 703

V. Loring, 2 Oh. 440, 349, 761

V. Lowe, 1 Edw. Ch. (N.

Y.)14, - ,- - - - 995

V. Ludlow, 6 Johns. 267, 703

V. Lusher, 5 Cow. 688, 543, 882,

884
V. McMlcken, 3 La. Ann.

319, 1103

V. Mallory, 24 Ala. 628, - 825,

828

V. Moynihan, 44 Cal. 53, 59

V. Mules, 9 Hare, 556, 241, 269,

574, 974
V. Mulock, 1 Robt (N. Y.)

569; 1 Abh. Pr. (N. S.) 374, 575

V. Oriell, 1 East, 868, - 755

V. Orser, 42 N. Y. 132 (afif.

S. C. 43 Barb. 187), - - 1105

V. Parkes, 16 Beav. 115, 184,

723

V. Perry, 29 N. J. L. 74, - 43

V. Eamsey, 107 Mass. 82, 283

V. Eamsey, 6 111. 373, 288, 541,

790

V. Riddell, 87 111: 165, - 877

V. Rogers, 17 J9hns. 340, 519

V. Shelden, 35 Mich. 42(24

Am. Rep. 529), - - 534, 695
V. Sloan, 37 Wis. 285 (19

Am. Rep.. 757), - - 329, 343

V. Small, 54 Barb. 223, 26, 274,

894

V. Smith, 5 Vgs. 189, 265, 266,

284

V. Smith, 33 Mo. 557, - 856

-^ V. Smith, 7 Foster (N. H.),

244, - - - - 101, 445
V. Smith, 13 Grant's Ch.

(Up. Can.) 81, - - - 601

V. Smyth, 43 Iowa, 493, - 439

V. Stone, 4 Gill & J. 310,' 415

V. Summerlin, 48 Ga. 425, 59

V. Tarlton, 2 Barb. Ch.

336, - - 208, 281, 301, 302
V. Teer, 21 Up. Can. Q. B.

413, ... - 637, 640

Smith V. Tupper, 4 Sm. & Mar.
261. See Doe ex dem. Smith
V. Tupper.

V. Turner, 9 Bush, 417, 341,

448, 523, 537

V. Vanderburg, 46 111. 34, 45,

47, 48, 587, 589
V. Walker, 38 Cal. 385, - 719

V. Walker, 57 Mich. 456, 675,

1136

V. Walker, 6 S. Ca. 169, 1018

V. Watson, 3 B. & C. 401;

3 D. & R. 751, 16, 258, 360, 1110

V. Wigley, 3 Moo. & Sc.

174, 497

. V. Winter, 4 M. & W. 454, 690,

691, 698

V. Wood, 31 Md. 393, 716, 719,

733, 724

V. Wood, 1 N. J. Eq.

74, 918

V. Wright, 5 Sandf. 113

(affd. in part, 4 Abb. App.

Dec. 274), - - - - 29, 66
Smitha v. Cureton, 31 Ala.

652, 331

Smook V. Pierson, 68 Ind. 405, 657
Smyth, Ex parte, 3 Dea. 597, 838,

842

V. Harvie, 31 111. 62, - 709

V. Strader, 9 Porter (Ala.),

446 ; 4 How. (U. S. ) 404, 636, 691,
883, 884
V. Strader, 4 How. (U. S.)

404 ; S. C. 9 Porter (Ala.), 448, 636,
691, 883, 884
Snaith v. Burridge, 4 Taunt.

684, - - - - - 1046
Snarr v. Small, 13 Up. Can.

Q. B. 125, - - - - 390
Snead v. Barringer, 1 Stew.

(Ala.) 134, - - - 156, 157
Sneed v. Kelley, 3 Dana, 538, 195
V. Mitchell, 1 Hayw. (N.

Ca.)289, - - - - 543
V. Wiester, 2 A. K. Mar.

(Ky.)377, - - 491,495,520

clxiii

Sne.]

TABLE OF CASES.

[Spk.

566
886
968
259,

912

Snell V. Crowe, 3 Utah, 26, - 1105,
1108, 1113

V. De Land, 43 HI. 833, - 29

V. Dwight, 120 Mass, 9, 114, 119

Sniffer v. Sass (1828), - - 825
Snodgrass v. Reynolds, 79 Ala.

452, ... - 78

Snow V. Howard, 35 Barb. 65, 315,
346, 1051
Snowball, Ex parte, L. B. 7

€h. App. 534, - - .
Snyder v. Baber, 74 Ind. 47, -

V. Hall, 10 111. App. 235. -

V. Lunsf ord, 9 W. Va. 223,

261, 347, 410, 566

V. Waif ord, 83 Minn. 175, 302

Society of Prac. Knowledge v.

Abbott, 2 Beav. 559, -
Sodiker v. Applegate, 24 W.

Va. 411 (49 Am. Rep. 252), -
Sohier v. Johnson, 111 Mass.

238, - 198, 657, 659, 671, 673
SoUee V. Meugy, 1 Bailey (S.

Ca.), 620, - - . .
Solly V. Forbes, 2 Brod. &

Bing. 38, - - . .
Solomon v. Kirkwood, 55

Mich. 256 (as Solomon v.

Hollander in 21 N. W, Rep.

336), - 577, 578, 618, 620, 622

V. Solomon, 2 Ga. 18, 26, 541,

760, 788
Solomons v. Medex, 1 Stark.

191, .... 1032, 1033
Solvency Mut. Guarantee Co.

V. Freeman, 7 H. & N. 17, - 649
Somerby v. Buntin, 118 Mass.

379, . - 26, 32, 1013, 1013
Somerset Potters' Works v.

Minot, 10 Cush. 592, 104, 825, 832,
837, 838
Soper V. Fry, 37 Mich. 236, - 377
Sorg V. Thornton, 1 Cin. Supe-
rior Ct. Rep. 383, - - 370, 440
Soule V. Frost, 76 Me. 119, 868

V. Haywai-d, 1 CaL 345, 258, 277

894

43

650

386

Soules V. Burton, 36 Vt. 652, 761,
763, 1138

South Boston Iron Co. v.
Holmes, 4 Cliff. 343, - - 836

South Canadian Bank v. Case,
8 B. & C. 427, - - 444, 445

South Wales Atlantic Steam-
ship Co., Re, 3 Ch. D. 763, . 7

Southard v. Lewis, 4 Dana,
148, .... 746, 747

V. Steele, 3 Mon. (Ky.)

435, - - . 336, 413, 1088
Southern v. Grim, 67 111. 106, . 618
Southern Steam Packet Co. v.

Magrath, McMuU. (S. Ca. ) 93, 434
Southmayd's Appeal (Pa. 1837),

8 Atl. Rep. 72, - - - 981
Southmayd v. Southmayd, 4

Montana, 100, - - 163, 209
Southwick V. Allen, 11 Vt. 75, 576,

619, 623

V. McGovern, 28 Iowa,

533, . 608, 618, 1151, 1153, 1155,

1156, 1157

Spalding v. Black, 22 Kan. 55, 1108

V. Mure, 6 T. R. 363, - 746

V. Wilson, 80 Ky. 589, 281, 290

453, 823
Sparhawk v. Drexel, 12 Bankr.

Reg. 450, - - . . 195

V. Russell, 10 Met. 305, 836, 828

Sparman v. Keim, 83 N. Y..345j 144
Sparrow v. Chisman, 9 B. & C.

241, . - . . 393, 1035

V. Kohn, 109 Pa. St. 359, 198

Spaulding v. Holmes, 25 Vt.

491, 964

V. Ludlow Woolen Mill,

36 Vt. 150, - - 389, 621, 688

V. Smith, 10 Me. 363, - 1168

Spaunhorst v. Link, 46 Mo. 197, 347,

503, 685
Speak V. Kinsey, 17 Tex. 301, 1135
Speake v. Barrett, 13 La. Ann.

479, . - - . 638
V. Prewitt, 6 Tex. 353, 150, 152,

1019, loaa

clxiv

Spb.]

TABLE OF CASKS.

[Sta.

Speake v.' White, 14 Tex. 364, 700
Spear v. Gillet, 1 Dev. (N. Ca.)

Eq. 466, - - - - 420
V. Newell, 2 Paine, C. C.

267, 899

V. Newell, 13 Vt. 388, 849, 944

Spears v. Lord Advocate, 6 CI.

& Fin. 180, - - - - 831

V. Toland, 1 A. K. Mar.

(Ky.) 203, - - , 331, 628, 700

Speer v. Bishop, 24 Oh. St.

598, .... 100, 638

Speights V.Peters, 9 Gill (Md.),

473, - - - 997, 998. 1002
Spence v. "Whitaker, 3 Porter

(Ala.), 297, - - - 187, 777
Spenceley v. Greenwood, 1 F.

& F. 297, .... 536
Spencer v. Billing, 16 Oh. St. ■

75, 107

Sparry, Ex parte, 1 Ashm. 347, 833
Spiers v. Houston, 4 Bligh, N.

R. 515, . - - - 650, 656
Spiess V. Eosswogg, 16 Jones

&Sp. 135; 63 How. Pr. 401, 305
Spiro V. Paxton, 3 Lea (Tenn.),

75 (31 Am. Dec. 630), - 1131

Sprague, Ex parte, 4 DeG. M,

& J. 866, - - - . 541

V. Ainsworth, 40 Vt. 47, 444,

448, 451

V. Zunts, 18 Ala. 382, - 356

Sprague Mfg. Co. v. Hoyt, 29

Fed. Rep. 431, - - - 394
Sprawles v. Barnes, 1 Sm. &

Mar. (Miss.) 629, - - 725, 1029
- Spring V. Gray, 6 Pet. 151, - 943
Spring Valley Water Works v.

Schottler, 63 Cal. 69, 118, - 061
Springer v. Cabell, 10 Mo. 640, 302,

851, 856

V. Shirley, 11 Me. 304, - 538

Sprout v. Crowley, 30 Wis.

187, - 28, 853, 874, 876

Spruhen v.'Stout, 53 Wis. 517, 437
Spurck V. 1 leonard, 9 111.- App.

174, - - 615, 624, 626, 694

1083
291
722

4,7

Spurr V. Cass, L. R. 5 Q. B.

656, - - 1019, 1023

V. Russell, 59 N. H. 338, 557, 558

Squires v. Anderson, 54 Mo.

193, 229

Staats V. Bristow, 73 N. Y. 264, 180,

186, 291, 1099, 1103, 1111, 1112, 1117,

1132

V. Hewlett, 4 Den. 559, 197, 073

Stables v. Eley, 1 C. & P. 614, 102,

463, 470
Stacey v. Decy, 2 Bsp. 469, n.

(s. c. as Stracey v. Deey, 7 T.

R. 361, n. c), - - -

Stadler v. Allen, 44 Iowa, 198,
Stafford v. Gold, 9 Pick. 533,
Stafford Bank v. Paluier, 47

Conn. 443, -
Stahl v. Stahl, 3 Lans. 60, 747, 750
Stainbank v. Fernley, 9 Sim.

556, - - - - 595, 897
Stainer v. Tysen, 3 Hill, 279, - 347
Stainton v. Carron Co. 18 Beav,

146, - - - - 924', 926

V. Carron Co. 24 Beav. 346, 964

Stair v. Richardson, 108 Ind.

429, ... - 689, 690
Stall v. Cassady, 57 Ind. 284,' 607, 613
v. Catskill Bk. 18 Wend.

466 (aflSrms Catskill Bk. v.

Stall, 15 id. 364), 349, 352, 358, 1153
Stallings v. Corbett, 3 Spears

(S. Ca.), L. 613,
Stanberry v. Cattell, 55 Iowa,

617, - . - - -
Sta'ndbridge v. Catanach, 83

Pa. St. 368, -
Stanford v. Lockwood, 95 N,

Y. 582, 588, . - - .
Stanhope v. Suplee, 3 Brewst.

(Pa.) 453, - - 718, 741, lOOO
Stannard v. Smith, 40 Vt. 513, 64
Stanton v. Buckner, 24 La.

Ann. 391, - - - - 856

V. Lewis, 36 Conn. 444, 686, 687

V. Westover (N, Y. 1886),

• 4 N. E. Rep. 539, - 551, 560, 563

763

735

- 1170

732

clxv

Sta,]

TABLE OF CASES.

[Stk.

Stanwood v. Owen, 14 Gray,

195, - - 598, 601, 602

Staples V. Sprague, 75 Me. 458, 32,

432
Stapleton v. King, 33 Iowa, 28

(11 Am. Eep. 109), - - - 62
Star Wagon Co. v. Swezey, 52

Iowa, 394; 59 id. 609, - 399, 696,

708
Starbuck v. Shaw, 10 Gray,

492, ... - 26, 70, 850
Stark V. Corey, 45 HI. 431, 322, 348,

447,449

V, Noble, 24 Iowa, 71, - 677

Starke V. Kenan, 11 Ala. 818, 1146
Starr v. Case, 59 Iowa, 491, 224, 269,

455, 499, 715, 763, 770, 773, 798, 973

V. Dugan, 22 Md. 58, - 54

V. Mayer. 60 Ga. 546, - 1117

Starrs v. Cosgrave, 12 Duval

(Canada), 571, - - - 651
State V. Baldwin, 31 Mo. 561, 734

V. Baldwin, 27 Mo. 103, - 734

V. Bierman, 1 Strob. L.

256, - - - - - 488
V. Butman, 61 N. H. 511, 277

V. Coleman, Dudley (S.

Ca.), L. 32, - - - - 488

V. Donnelly, 9 Mo. App.

519,' - - 43

V. Gerhardt, 8 Jones (N.

Ca.), L. 178, - - - 178, 269

V. How, 1 Mich. 512, - 4

V. Linaweaver, 3 He%d,

51, 1127

V. Mohr, 68 Mo. 303, - .48H

V. Myers, 9 Mo. App. 44, 734

V. Neal, 27 N. H. 131, - 488

V. Parker, 34 N. J. L. 71, 175

V. Penman, 2 Desaus. 1, - 1168

V. Quick, 10 Iowa, 451, - 586

V. Thomas, 7 Mo. App,

205, .... 560, 1133

V. Wiggin, 20 N. H. 449, - 100,

1150

V. WiUiams, 103 Ind. 235, 488

V. Woods, 36 Mo. 73, ' - 784

State ex reL v. Bowden, 18 Fla.

17. 1131

V. Donegan, 12 Mo. App.

190 (affd. 83 Mo. 374), - 784, 736

V. Emmons, 99 Ind. 452, - 1131

V. Finn, 11 Mo. App. 546, 257,

260, 1110

V. Merritt, 70 Mo. 275, - 1019

V. Spencer, 64 Mo. 3S5 (27

Am. Rep. 244), - - - 1131
State F. Ins. Co., Meredith's

Case, 1 B. & P. New Eep.

510, ... - 823

Stauffer, Succession of, 21 La.

Ann. 520, .... 1131
Stead V. Salt, 3 Bing. lOl'; 10

Moore, 889, - - - 386, 381
Stead well v. Morris, 61 Ga. 97, 959,

963
Steamboat Orleans v-. Phoebus,

11 Pet. 175, - - - 908

Stearns v. Burnham, 4 Me. 84, 865

V. Haven, 14 Vt. 540, 43, 91,

1145

V. Houghton, 38 Vt. 583, - 716,

719
Stebbins v. Harmon, 17 Hun,

445, 978

V. Willard, 53 Vt. 665, 184, 446,

692, 693, 769, 770
Stecker v. Smith, 46 Mich. 14, 447,

451
Stedman v. Feidler, 20 N. Y.

437, - - - - - 70

V. Smith, 8 E & B. 1, - 274

Steel V. Jennings, Cheves (S.

Ca.), 183, - - - 370, 447
Steele v. First Natl. Bank, 60

111. 28, - - - . 326, 381
V. Grossmith, 19 Grant's

Ch. (Tip. Can.) 141, - - 996
V. Jennings, 1 McMull.

(S. Ca.)297, -■ - - .703
V. Stuart, L. R. 2 Eq.

84, 395

Stegall V. Coney, 49 Mi&s. 761, 403,
566. 1038

clxvi

Ste.]

TABLE OF CASES.

[Ste,

Stegman v. Berryhill, 72 Mo.

307, - - . 766, 770, -780
Steiglitz V. Egginton, Holt, N.

P. 141, 416

Stein V. La Dow, 13 Minn. 413, 338,

339, 840

V, Robertson, 30 Ala. 286, 86,

143, 181
Steinhart v, Fyhrie, 5 Mon-
tana, 463, - . - - 838, 339
Stephens v. Orman, 10 Fla. 9, 316,
809, 794, 961

V. Parkhurst, 10 Iowa, 70, 1091

V. Reynolds, 5 H. & N.

513 ; 1 F. & F. 739 ; 3 id. 147, 341,

443

V, Thompson, 38 Vt. 77, 533,

524
Stephenson v. Chiswell, 8Ves.

566, - - - ... 748
V. Jackson, 9 Bankr. Reg.

378; 2 Hughes, 204, - - 841
Sterling v. BrightbiU, 5 Watts,

339 (30 Am. Dec. 304), - - 848
Stern's Appeal, 95 Pa. St. 504, 740,

794, 798
Sternberg v. Callanan, 14 Iowa,

251, - - - - 507, 510
Sterndale v. Hankinson, 1 Sim.

393, - - - 497

Sterne v. Bentley, 3 How. Pr.

331, . - - - 380

Stettauer v. Carney, 20 Kan.

474, . - - - 42.

Stettheimer v. Killip, 75 N. Y.

383, - - - - - 958
Steuben Co. Bank* v. Alburger

(N. Y. 1886), 4 N. E. Rep.

341, ... - 351, 364
Stevens, Re, 5 Bankr. Reg.

113; 1 Sawy. 397, - - - 838
V. Bank of Central N. Y.

31 Barb. 390, - - - 1099

V. Benning, IK. & J.

168; 6 DeG. M. & G. 233, - 710

V. Cook, 5 Jur. N. S. 1415, 781,

786

Stevens v. Faucet, 24 111. 483, 29, 36.
39, 43, 257

V. Gainesville Natl. Bank,

63 Tex. 499, - - - - 17
V. Lunt, 19 Me. 70, - - 1071)

- V. Perly, 113 Mass. 380, - 847,

1118
-- — V. Rollins, 34 Me. 236, - 722.

724

V. South Devon R'y Co. 9

Hare, 313, - - - . 43
V. Stevens, 39 Conn. 474, 110-

v. West, 1 How. (Miss.)

808, - - - 453a, 841

y. Yeatman, 19 Mil. 480, - 98.)

Stevenson v. Brown, 9 L. J.

Chy. (Up. Can.) 110, -' - 338

V. Farnsworth, 7 111. 715; - 1071

V. McLean, 11 Up. Can.

C. P. 308, - - - 650

V. Mann, 13 Nev. 268, 274, 535

V. Mathers, 67 111. 123, 83, 930,

932

V. Sexsmith, 21 Grant's

Ch. (Up. Can.) 355, - 5r>-2
V. Woodhnill, 19 Fed. Rep.

575, - - o81, 5-i;3

Steuart v. Gladstone, 10_Ch. D.

626, -' _ '- 241,661

Stewai'd v. Blakeway, L. R. 4

Ch. 603, - - - . 257, 287
Stewart's Appeal, 105 Pa. St.

307, - - - 703,719

Stewart, Assignment of, 62

Iowa, 614, - - - 566

, Re, 13 Bankr. Reg. 295, - ,1131

V. Bedell, 79 Pa. St. 336, - 676

V. Behm, 3 Watts, 356, - 433

V. Brown, 37 N. Y. 350, 1131

V. Burkhalter, 28 Miss.

396, ... - 742, 925
V. Caldwell, 9 La. Ann.

419, - - - - 367, 620

V. Challacombe, 11 111.

App. 379, - ... 670

V. Erie & Western Transp.

Co. 17 Minn. 372,'- - - 1038

clxvii

Ste.]

TABLE OF CASES.

[Sto.

Stewart v. Forbes, 1 Hall & Tw.

461 ; 1 Macn. & G. 137, - 181, 215

V. Hunter, 1 Handy, 22, 1105,

1109
V. Kerr, 1 Morr. (Iowa)

240, - - - - - 899

V. Levy, 36 Cal. 169, 464, 468,

480
V. Mcintosh, 4 Har. & J.

233, - - 114, 119, 128, 425
V. Parker, 18 New Bruns-
wick, 233, - - - 349, 361

V. Piatt. 101 U. S. 731, - 179

V. Slater, 6 Duer, 83, - 569

V. Sonneborn, 49 Ala. 178, 618,

625

V. Sonneborn, 51 Ala. 126, 620

V. Btebbins, 80 Miss. 66, - 549,

789
Stickney v. Smith, 5 Minn.

486, 191

Stidger v. Reynolds, 10 Oh.

351, - 252, 763, 770, 771

Stiles y. Meyer, 64 Barb. 77 ; 7

Lans. 190, - - - -.349
Stillwell V. Gray, 17 Ark. 473, ' 685,

713
Stimson v.. Lewis, 36 Vt. 91, 76, 933
V. Whitney, 130 Mass.

591, 322, 328, 341, 354, 359, 618

Stiness v. Pierce, 12 R. I. 452, 927
Stirling v. Heintzm'an, 43

Mich. 449, - - - 1060

Stirnermaun v. Cowing, 7

Johns. Ch. 275, - - - 707

Stitt V. Cass, 4 Barb. 93, - - 387

Stix V. Mathews, 63 Mo. 371, 1068

' Stoallings v. Baker, 15 Mo. 481, 61

Stockdale v. Keyes, 79 Pa. St.

251,

V. Ullery, 37 Pa. St. 486,

Stocken V. Davison, 6 Beav.

371,
V. Dawson, 9 Beav. 239,

and on app. 17 L. J. Ch. 283,
Stocker v. Brockelbank, 3

Mac. & G. 250, -

393

988

772
799

43

Stocker v. Wedderburn, 3 K.

& J. 393, - - - 1013

Stockton V. Fry, 4 Gill, 406, - 471

V. Johnson, 6 B. Mon. 408, 333

Stockwell V. Brewer, 59 Me.'

386, - - - 176

' V. Dillingham, 50 Me. 442, 348,

406, 450
V. United States, 13 Wall.

531 (aflf. 3 Clifif. 384), - - 468
Stoddard v. Smith, 11 Oh. St.

581, - - - - 483, 486

V. Wood, 9 Gray, 90, - 629

Stoddart v. Key, 63 How. Pr.

137, - - - - 198
V. McMahan, 35 Tex. 267, 1143,

1154

V, Van Dyke, 12 Cal. 437, 1094

Stokes V. Hodges, 11 Rich. Eq.

138, ■■, - - - - 781
Stone, Ex parte, L. R. 8 Ch.

App. 5l4, - 200, 453, 453a, 841

V. Boone, 24 Kan. 337, - 894

V. Chamberlin, 20 Ga. 259, 534

V. Deniiis, 3 Porter (Ala.),

231, - - 870,871,873

V. Fouse, 3 Cal. 292, 873, 890

V. Manning, 3 111. 530, - 103

V. Marsh, Ry. & Moody,

364;6B. &C. 551; 8 Dow. &

Ryl. 71, - - - - 474

V. South Carolina, 117 U.

• S. 430, 1058

V. Wendover, 3 Mo. App.

247, - - - 889

Stoney V. Shultz, 1 Hill(S. Ca.),

Ch. 465, 848

Storer v. Hinkley, Kirby

(Conn.), 147, - 341, 747, 750

Storm V. Cumberland, 18

Grant's Ch. (Up. Can.) 345, - 183,

949

V. Roberts, 54 Iowa, 677, - 1063

Story V. Moon, 3 Dana, 331, - 764,

765, 973
Stothert v. Knox, 5 Mo. 113, - 852,

856

clxviii

Sto.]

TABLE OF CASES.

[Sun.

488
1064
1109
1070

953

Stoughton V. Lynch, 1 Johns.

Ch. 467, - - 237, 789, 790, 791

V. Lynch, 3 Johns. Ch. 309, 787,

789, 790, 791, 798

V. State, 2 Oh. St. 563, -

Stout V. Baker, 33 Kan. 118. -

V. Fortner, 7 Iowa, 188, -

V. Hicks, 5 Blackf. 49, -

V. Seabrook, 30 N. J. Eq.

187 (affd. without op. 33 id.

826),

V. Zuliot (N. J.), 7 AtL

Rep. 363, . . '- 4

Stoutenburgh v. Vandenburgh,

7 How. Pr. 329, - 377, 380, 1086
Sto veld, Ex parte, 1 Glyn. & J.

308, - - .
Stowe V. Sewall, 3 Stew. &

For. (Ala.) 67, - - -
Stracey v. Deey, 7 T. E. 361,

n. c ; S. C. as Stacey v. Decy,

2 Bsp. 469, n.,
Strader v. "White, 2 Neb. 348,'-
Straffin v. Newell, T. U. P.

Charlton, Ga. 163 (4 Am.

Dec. 705), - - - -
Strang v. Bradner, 114 IT. S.

855 (afif. 89 N. Y. 299), 473, 480

V. Hirst, 61 Me. 9, - 733, 733

Strange v. Graham, 56 Ala.

614, - - 685, 713, 719, 943

V, Lee, 3 East, 484, - 649, 656

Strangford v. Green, 2 Mod.

338, 336

Strathy v. Crooks, 2 Up. Can.

Q. B. 51, ... 716

Strattan v. Tabb, 8 111. App.

235, - - - 770, 836, 845
Straus V. Kerngood, 31 Gratt.

584, - 569, 835, 838, 833, 847

Strauss v. Frederick, 91 N. Ca.

131, - - - - 740,834

V, Jones, 37 Tex. 313, - 445

V. Waldo, 35 Ga. 641, 193, 205,

439, 443
Strecker v. Conn, 90 Ind.

469. - - - - ■- 613

1003

860

1083
44

414

Street y. Eigby, 6 Ves. 615,

618, 233

Stretch v. Talmadge, 65 Cal.

510, - - - 957

Stroh V. Hinchman, 37 Mich.

490, .... 346, 36S
Stroman v. Yarn, 19 S. Ca. 307, 392,

416, 417
Strong V. Baker, 35 Minn. 443, 449

V. Clawson, 10 111. 346, - 937

V. Fish, 13 Yt. 377, 411, 413,

1044

V. Lord, 107 111. 35, 394, 297,

398, 976

V. Niles, 45 Conn. 53, - 454

V. Place, 51 N. Y. 627; 4

Eobt. 385, - - 43, 78

Stroud V. Stroud, Phil. (N. Ca.)

L. 535, - - - 290, 394, 297
Struthers v. Chrystal, 8 Daly,

837, - - - 987'

V. Pearce, 51 N. Y. 357, - 305

Stuart V. Lord Bute, 13 Sim.

460, - - - 314

— V. McKichan, 74 111. 133, 978
Stultzman v. Yeagley, 33 Up.

Can. Q. B. 680, - - - 881
Stumph V. Bauer, 76 Ind. 157, 357,
360, 1101, 1110
Stupart V. Arrowsmith, 8 Sm.

& G. 176, - - 433, 958

Sturges V. Beach, 1 Conn. 507, 737,

750, 11 CO

V. Swift, 33 Miss. 339, 861, S80

Sullivan v. Murphy, 38 Minn.

6, - - . . . 1154
V. Smith, 15 Neb. 476 (47

Am. Eep. 354), - - - 340

V. Sullivan, 20 S. Ca. 79, - 7

Summey v. Patton, 1 Winst.

(N. Ca.) Eq. 53, ' - - 381, 397
Sumner v. Powell, 3 Mer. 30

(affd. T. & R. 438), - 339

V. Hampson, 8 Oh. 338

(33 Am. Dec. 733), - 285, 290

Sun Ins. Co. v. Kountz Line,
133 U. S. 583, - - - 101

clxix

Sue.]

TABLE OF CASES.

[Tam.

Surrogate Court, Re, 44 Up.

Can. Q. B. 207, ... 743
SutclifEe V. Dohrman, 18 Oh,

181 (51 Am. Dec. 450). - 1109, 1111
Sutlive V. Jones, 61 Ga. 676, 184,

399, 416
Sutro V. Wagner, 23 N. J. Eq.

388 (affd. 24 id. 589), . 591, 994
Sutton V. Dillaye, 3 Barb. 529, 693

V. Gregory, 2 Peake, 150, 341

V. Irwine, 12 Serg. & R.

13, . - - - 349, 363
V. Mandeville, 1 Cranch,

C. C. 3, .... 979

. Suydam v. Barber, 18 N. Y.

468 (rev. 6 Duer, 34), - 585, 537
V. Cannon, i Houst. (Del.)

431, . - 531, 533, 535

Swails Y. Coverdill, 17 lud.

337, 1034

Swallow, The Steamboat, 01-

cott, 334, .... 67

V. Thotoas, 15 Kan. 66, - 175,

176
Swan V. Scott, 33 Up. Can. Q.

B. 434, 110

V. Stedman, 4 Met. 548, - 334,

416, 698

V.Steele, 7 East, 310; 3

Smith, 199, '- - 107, 196, 341
Swann v. Sanborn, 4 Woods,

C. C. 635, - - 47, 95, 105
Swasey v. Antram, 34 Oh. St.

87 (13 Am. Law Reg. (N. S.) '

577), 138

Swearingen v. Bassett, 65 Tex.

367, - ' - - 1131, 1133

Sweeney v. Neely, 53 Mich.

421, .... 766, 786

V. Stanford, 67 Cal. 635, - 139

Sweet V. Bradley, 24 Barb.

■ 549, .... 403, 473

V. Ervin, 54 Iowa, 101, - 1061

V. McConnel, 2 Neb. 1, - 629

V. Morrison, 103 N. Y. 235, 315,

383, 896
V. Read, 13 R. L 131, - 1103

Sweet V. Taylor, 36 Hun, 256, - 716
Sweetser v. French, 3 Cush.

309 (48 Am. Dec. 666), 342, 363,

367
Sweetzer v. Mead, 5 Mich. 107, 407,

416, 418
Swinney v. Burnside, 17 Ark.

38, 1068

Swire v. Redman, 1 Q. B. D.

536, - - - 527, 533, 709
Switzer v. Smith, 35 Iowa, 369, 1114,

1115
Syers v. Syers, L. R. 1 App.

Cas. 174, - - 357, 974, 1011
Sykes v. Beadon, 11 Ch. D.

170, . - - 112, 119, 125
Sylverstein v. Atkinson, 45

Miss. 81, - 348, 349, 360, 361
Sylvester v. McCuaig, 28 Up.

Can. C. P. 443, ... 89
V. Smith, 9 Mass. 119, - 1053

T.

Tabb V. Gist, 1 Brock. 83, - 161,

439

V. Gist, 6 Call (Va.), 379, 434,

435
Taber v. Cannon, 8 Met. 456, 441
Taft V. BuflEum, 14 Pick. 323, 585

V. Schwamb, 80 111. 289, 181,

183, 331, 256, 815

V. Ward, 106 Mass. 518, 73, 78,

74

V. Warde, 111 Mass. 518, 73, 74

Taggaut y. Phelps, 10 Vt. 318, 446,

506
Taitt, Ex parte, 16 Ves. 193, - 835
Talbot V. Pierce, 14 B. Mon.
158, .... 553, 569

V. Wilkins, 31 Ark. 411, 331

Talcott V. Dudley, 5 111. 437, . 155,

583, 754
Tallis V. Tallis, 1 E. & B. 391, 676
Tallmadge v. Penoyer, 35

Barb. 130, .... 481
Tarns V. Hitner, 9 Pa. St. 441, 107

clxx

Tap.]

Tapley v. Butterfield, 1 Met.

515 (35 Am. Deo. 874), - 884, 408,
406, 407, 418
Tappan v. Blaisdell, 5 N. H.

190, .... 189, 1114

V. KimbaD, 80 N. H. 136, 704,

705
V. Eedfleld, 1 Halst. Ch.

(N.J.) 839, - - - . 416
Tarbel v. Bradley, 7 Abb. New

Cas. 278, 184, 186, 285, 290, 291,

407, 823

Tarbell v. Page, 24 111. 46, - 4

V. West, 86 N. Y. 280, 184, ,186,

291, 974
Tarlton v. Herbert, 4 Ala. 359, 1086
Tasker v. Shepherd, 6 H. &N.

575, - - - 708, 709, 730
Tassey v. Church, 4 Watts &

S."141 (39 Am. Deo. 65)^
V. Church, 6 Watts & S.

465 (40 Am. Dec. 575), -
Tatam v. Williams, 3 Hare,

347,

Tate V. Mutual F. Ins. Co. 13

Gray, 79, - - - -
V. Tate, 35 Ark. 2!

TABLE OF CASES.

Taylor v. Coffing, 18 HI. 423,

700
900

158

- 272
739, 923,
924
V. Clements, 16 Fla. 339

(26 Am. Rep. 709), - 703, 704
Tattersall v. Groote, 3 B. & P.

131, - - - 233, 234

Tay V. Ladd, 15 Gray, 296, - 427
Tayler v. Scott, 45 Vt. 261, - 32
Tay loe v. Bush, 75 Ala. 432, 17, 43, -59
Taylor, Ex parte, 8 De G. M. &

G. 254; 25 L. J. Bkr. 35; 2

Jur. N. S. 330, - - - 144

, Ex parte, 3 Rose, 175, - 845

V. Bemis, 4 Biss. 406, - 657

V. Bothiu, ' 5 Sawy. 584

(8 Reporter, 516), - - - 675

V. Castle, 43 Cal. 367, 163, 585

V. Cawthorne, 2 Dev. Eq.

231, 987

V. Church, 1 E. D. Smith,

279; 8N. Y. 453, - - - 1033

[Tat.

• 813,
814
V. Coryell, 13 Serg. & R.

243, - . . . 336, 416
y, Davis, cited in note to

Whittaker v. Howe, 3 Beav.

383, 388, .... 314
V. Farmer (111. 1886), 4 N.

E. Rep. 370, - 290, 453, 831, 823
V. Fields, 4 Ves. 396 (ex-
plained in 15 id. 559, n.), 845, 1111

V. Gilleau, 23 Tex. 508, - 1006

V. Hare, 1 B. •& P, N. R.

260, ..... 809

V. Haylin, 3 Bro. C. O. 310, 963

V. Henderson, 17 S. & R.

453, .... 1093, 1169

V, Herring, 10 Bosw. 447, 979

V, Hill, 36 Md. 494, 323, 380, 613

V. Hillyer, 3 Blackf. 433

(36 Am. Dec. 430), 347, 365, 647,
694, 701
V. Holman, 1 Mill (S. Ca.),

173, 889

V. Hutchison, 35 Gratt.

536 (18 Am. Rep. 699), - 583, 798,
974, 977'
V. Jarvis, 14 Up. Can. Q.

B. 128, - - - 155, 1114

V. Jones, 42 N. H. 35, 317, 389,

465

V. Love, 43 N. J. L. 143, - 175

V. McDonald, 4 Oh. 149, - 1117,

1118
V. Morrison, 7 Dana (Ky.),

341, - - - 942,948,953

V. Penny, 5 La. Ann. 7, - 158

V. Post, 30 Hun, 446, - 500

V. Rundell, 1 Ph. 233 (aff'g

1 Y. & C. C. C. 138), - - 314
V. Stbt. Robt. Campbell,

20 Mo. 354, ... - 1020

V. Shaw, 2 Sm. & Stu. 12, 958

V. Smith, 3 Cranch, C. C.

341, ...■-- 854
V. Sotolingo, 6 La, Ann.

154, 43

clxxi

Tat.]

TABLE OF CASES.

[Tho.

912

181
44

883

791

148.
375

Taylor v. Taylor, 28 L. T. 189,
V. Taylor, 3 Murph. (N,

Ca.)70, - . - - .

V. Terme, 3 Har. & J. 505,

V. Webster, 39 N. J. L.

102, - - - . 317, 1155

V. Wilson, 58 N. H. 465, - 105

V. Young, 3 Watts, 339, - 400,

626

V. Young, 3 Bush, 428, 786, 788

Teague v. Hubbard, 8 B. & C.

345, - - , -
Tebbetts v. Dearborn, 74 Me.

393,

Teed v. Elworthy, 14 Bast, 210,
Tell V. Beyer, 38 N. Y. 161, 163,
Temple v. Seaver, 11 Cush.

314, - - - 691, 883, 884
Tench v. Roberts, 6 Madd. 145, 110
Tennant, Ex parte, 6 Ch. D.

303, 31, 47

Tenney v. Foote, 95 111. 99, 113, 138

V. Johnson, 43 N. H. 144, 563,

563, 824, 1114, 1115
V. New Engl. Protec,

Union, 37 Vt. 64, - 73, 76, 580
Terrell, Ex parte. Buck, 345, - 845

V. Goddard, 18 Ga. 664, 997

V. Hurst, 76 Ala. 588, 315, 346,

1131

V. IngersoU, 10 Lea, 77, - 1008

Terrill v. Eichards, 1 Nott &

McC. (S. Ca.) 20, - 870, 875, 876
Terry v. Berry, 13 Nev. 514, - 1131

V. Butler, 43 Barb. 395, - 825

V, Carter, 35 Miss. 168, -

V. Eagsdale, 33 Gratt. 343,

Tesson, Ee, 9 Bankr. Eeg. 378,
Tevis V. Tevis, 34 Mo. 585,
Texas Banking & Ins. Co. v.

Cohen, 47 Tex. 406 (26 Am.

Eep. 298), . - - -
Texas Ins. Co. v. Cohen, 47

Tex. 406, ... -
Texas & St. Louis R'y Co. v.

MoCaughey, 62 Tex. 271, -

873

1171

841

358

272

273

1086,
1091

Thacker v. Shepherd, 2 Chit.

653,

Thackray's Appeal, 75 Pa. St.

133,

Tharp v. Marsh, 40 Miss. 158, -
Thayer v. Augustine, 55 Mich.

188 (40 Am. Eep. 465), -
— — V. Bufifum, 11 Met. 398. -

1031

659
37

V. Smith, 116 Mass. 369,

V. Younge, 86 Ind. 359,

Theall v. Lacey, 5 La. Ann. 548,
Theilen v. Hann, 37 Kan. 778,

45

- 883,

884

- 453
676, 678

984
193,
443
908

Theller v. Such, 57 Cal. 447,
Theriot v. Michel, 38 La. Ann.

107, ... 70, 286, 587
Thibodaux v. Keller, 29 La.

Ann. 508, 509, - - - 176
Thicknesse v. Bromilow, 3 Cr.

& J. 435, - . 339, 342, 370
Thomas, Ee, 17 Bankr. Eeg.
54; 8 Biss. 139, 200, 453, 841, 843

V. Adams, 2 Porter, 196, 1079

V. Atherton, 10 Ch. D. 185, 761,

763

101

321,

1151

V. Lines, 83 N. Ca. 191, 211,

313, 252, 544

■ V. Green, 30 Md. 1, .

• V. Harding, 8 Me. 417,

V. Lrfsk, 13 La. Ann. 319,

V. Miles, 3 Oh. St. 274, -

V. Minot, 10 Gray, 263,

1103
676
825,
835.
1167
1149
883,

V. Mohler, 35 Md. 86,

v. Moore, 71 Pa. St. 193,

V. Pennrich, 28 Oh. St. 55,

1038, 1044

V. Pyke, 4 Bibb (Ky.), 418, 874

V. Shillabeer, 1 M. & W.

124, .... 505, 520
V. Stetson, 62 Iowa, 537

(49 Am. Rep. 148), - 427, 1044

V. Thomas, 5 Ex. 28, - 856

V. Wolcott, 4 McLean,

365, 1154

clxxii

Tho.]

TABLE OF CASES.

[Tie.

Thomason v. Frere, 10 East,

418, - . 610, 750, 755, 1036
Thompson, Ex parte, 3 Deac.

& Ch. 613, - - - - 906
V. Andrews, 1 Myl. & K.

116, 600

V. Briggs, 8 Foster (28 N.

H.), 40, ... 539

V. Bowman, 6 Wall. 316, 279,

380, 299, 587, 700
V. Brown, 1 Mood. & Malk.

40, 494

V. Brown, 4 Johns. Ch.

619, - - - - 604, 737

V. Egbert, 3 N. Y. Su-
preme Ct. 474, - - - 801

V. Emmert, 15 111. 415, 380, 585

V. Franks, 37 Pa. St. 837, 1164

V. First Nat'lB'k, 111 XJ.

S. 529, - - - - 91, 93, 94

V. Frist, 15 Md. 24, - 824, 1109

V. Gray, 11 Daly, 183, - 198

V. Hale, 6 Pick. 259, - 884

V. Head, 2 Ind. 245, - - 317

V. Lewis, 34 Me. 167, 719, 1103.

1104, 1109

V. Percival, 5 B. & Ad.

935; 3Nev. & M. 167, - 505, 519,
530, 523, 524, 538, 539

V. Rogers, 69 N. Ca. 357, 781,

763
V. Ryan, 3 Swanst. 565, -

V. Snow, 4 Me. 264 (16

Am. Dec. 363), -

V. Spittle, 103 Mass. 307, -

V. Springall, 8 C. B. 540, -

V. Stbt. Julius D. Mor-
ton, 2 Oh. St. 26 (59 Am.
Deo. 658),

V. Tinnin, 35 Tex. Sup. 56, 1109

V. Williamson, 7 Bligh,

N. E. 433, ' - - -

V. Waithman, 3 Drew.

638, - - - -

Thomson's Estate, 13 Phila. 36,
Thomson V. Thomson, 1 Bradf.
(N. Y.:) 24, -

269

45
183
386

883

181

706

73

714
clxxiii

Thorn v. Smith, 21 Wend. 365, 443,
701, 1153, 1153

Thorndike v. DeWoIf, 6 Pick.

130, 70

Thornton, Ex parte, 5 Jur.N. S,
313, 843

V. Bussey, 37 Ga. 303, 454, 835,

847

V. Dixon, 3 Brown's Ch.

Cas. 199, .... 974

V. Kerr, 6 Ala. 833, - - 1151

V. McNeill, 33 Miss.

389, 963

V. Proctor, 1 Anstr. 94, - 766,

770, 780

Thorpe v, Jackson, 3 Y. & C.
Ex. 553, .... 748

Thrall v. Crampton, 9 Ben.
218; 16 Bankr. Reg. 301, 290, 822

V, Seward, 37 Vt. 573, - 211,

681, 1035, 1171

V. Waller, 13 Vt. 331 (37

Am. Dec. 592), - ' - - 860

Thurber v. Corbin, 51 Barb.
315 (S. C. as Thurber v. Jen-
kins, 36 How. Pr. 66); 534, 5£8

V. Jenkins, 36 How. Pr.

66 (S. c. as Thurber v. Cor-
bin, 51 Barb. 215), - 534, 538

Thursby v. Lidgerwood, 69 N.
Y. 198, - - - 265, 686, 687

Thurston v. Horton, 16 Gray,
374, 1154

V. Lloyd, 4 Md. 383, - 361

V. Perkins, 7 Mo. 29, 80, 611

Thwaites v. Richardson, 1
Peake, 23 [16J, - - - 331

Thwing V. Clifford, 136 Mass.

483, . - - . eo, r:^

Tibbetts v. Magruder, 9 Dana,
79, 878

Tidd V. Rines, 36 Minn. 301 ; 10
Cent. L. J. 102, -' - - 296

Tiemann v. Molliter, 71 Mo.
512,, ... - 727. 733

Tiernan v, Doran, 19 Neb. 493, 267.

1061

TiF.]

Tiffany v. Crawford, 14 N. J.

Eq. 278, .... 848

Tifield V. Adams, 3 Iowa, 487, 507
Tilford V. Eamsey, 37 Mo. 563, 199,
202, 324, 341
TiU's Case, 8 Neb. 261, • - 1131
Tillier v. Whitehead, 1 Dall.

269, - ■ - - - 322, 334
Tillinghast v. Champlin, 4 R. I.

173, 281, 291, 294, 295, 300, 739.
923, 1001, 1114
Tillotson V. Tillotson, 34 Conn.

335, 285, 523, 603, 763, 767, 769,
770, 774
Tillou V. Kingston Mut. ' Ins.

Co. 5 N. Y. 405 (rev. 7 Barb.

570), 272

Tilman v. Cannon, 3 Humph.

(Tenn.)637, - - - 1014

Timmerman v. De ver, 52 Mich.

34 (50 Am. Rep. 240), - - 676
Tindal V. Bright, 1 Minor (Ala.),

103, ... 900

Tiuer v. Christian, 27 Ark. 306, 908
Tinkum v. O'Neale, 5 Nev. 93, 454,
535, 1049, 1055
Tipton V. Vance, 4 Ala. 194, - 884
Tirrell v. Jones, 39 Gal. -655, . 781
Tissard v. Warcup, 2 Modern,

279, - - . - 746

Titus V. FoUet, 2 Hill, 318, - 1031

V. Todd, 25 N. J. Eq. 458, 523,

029
Tobey v. McFarlin, 115 Mass.

98, ... 180,1103,1113

Tobias V. Blin, 21 Vt. 544, 45, 59

Tudd V. Clapp, 118 Mass. 495, 136,

145

V. Daniel, 16 Pet. 521, - 1057

V. Jackson, 75 Ind. 272 S. C.

as Jackson V.Todd, '56 id. 406), 316

V. Lorah, 75 Pa. St. 155, - 411,

428, 1044
V. Rafferty, 30 N; J. Eq.

254, 115, 121, 128, 306, 792, 942,

947, 949

Tolan V. Carr, 12 Daly, 520, - 795

TABLE OF CASES. [Tou.

Tolford V. Tolford, 44 Wis.

647, 863

Tolman v. Hanrahan, 44 Wis.

133, 441

Tom V. Goodrich, 2 Johna 213, 438,

451
Tombeckbee Bk. v. Dumell, 5

Mason, 56, ... - 694
Tomes, Re, 19 Bankr. Reg. 36, 105,

547, 562
Tomlin v. Lawrenpe, 3 Moo. &

P. 555, ... - 199, 381
Tomlinson v. Hammond, 8

Iowa, 40, - - - 632, 644

V. Nelson, 49 Wis. 679, - 850,

853

V. Ward, 2 Conn. 396, 761, 767

Tompkins v. Tompkins, 18 S.

Ca. 1, - - - - 711, 730
V. Wood yard, 5 W. Va.

216, . - . . 349, 303
Tone V. Goodrich, 2 Johns. 213, 740
Tonne, Re, 13 Bankr. Reg. 170, 1131
Tdof V. Duncan, 45 Miss. 48, - 317,

477
Toombs V. Hill, 28 Ga. 371, 825, 828
Toplifl V. Jackson, 13 Gray,

565, - - - 641,978,979
V, Vail, IHarn Ch. (Mich.)

340, - - - 552

Topping, Ex parte, 4 De G. J.

& S. 551, - - - 844, 846
^T- V. Paddock, 92 111. 93, 251, 785
Torrens v. Campbell, 74 Pa. St.

470, - 503, 504, 510, 513, 514
Torrent v. Yager, 53 Mich. 506, 177
Torrey v. Baker, 13 Vt. 453, 536, 692

v. Baxter, 13 Vt. 452, 408, 694

v. Twombley, 57 How. Pr.

149, 853

Totty V. Donald, 4 Munf. (Va.)

430, 1065

Toulmin v. Copland, 3 Ph. 711

(revg. 4 Ha. 41), - - . 801
V. Copland, 2 CI. & Fin.

681 ; 3 Y. & C. Ex. 625, 314, 497,
801, 973

clxxiv

Tow.]

TABLE OF CASES.

[Tuo.

Towle V. Meserve, 38 N. H. 9, 849,

856
V. Pierce, 13 Met. 329 (46

Am. Dec. 679), - 907, 933, 936
Town V. Hendee, 37 Vt. 358, - 101

V. "Washburn, 14 Minn. 268, 706,

1094
Towne V. Leach, 33 Vt. 747, - 1103
Townend v. Townend, 1 GlfE.

201, - . ■ . . - 800
Towner v. Lane, 9 Leigh (Va.),

363, - - - - - 181
Townes v. Birchett, 13 Leigh,

173, 1055

Townsend v. Goewey, 19

Wend. 434, - - - 874, 876

V. Long, 77 Pa. St. 143, - 647

V. Neale, 3 Camp. 189, - 1019

Townsends v. Stevenson, 4

Eich.(S. Ca.)L. 59, - - 538
Tozier v. Crafts, 123 Mass. 480, 1153
Tracy v. McManus, 58 N. Y.

257, - - - . 1150
V. Walker, 1 Blip. 41 ; 3

West. Law Month. 574, ' 541, 555,
560, 755, 953
Tradesmen's Bank v. Astor, 11

Wend. 87, 90, - - - 333
Traflord v. Hubbard, 15 E. I. 1105,

1107
Trafton v. United States, 3

Story, C. C. 646, - - - 537
Trammell v. Harrell, 4 Ark.

603, - - . - 718, 723
Trann v. Gorman, 9 Porter,

456, - ... 1081

Traphagen v. Burt, 67 N. Y.

30, 303, 913

Travers v. Dyer,' 16 Biatchf.

178, 899

Travis v. Milne, 9 Hare, 141, - 483,

936

V, Tartt, 8 Ala. 574, , 456, 1125

Treadway v. Ryan, 8 Kan. 437, 858,

860, 894
Treadwell v. Brown, 41 N. H.

12, - - - - 825, 928, 1113

Treadwell v. Brown, 43 N. H.

390, . - . . 1108,1113

V. Wells, 4 Cal. 360, 617, 633,

634

V. Williams, 9 Bosw. 649, 186,

291
Tredwell V. Rascoe, 3 Dev. (N.

Ca.) L. 50, - - - 1105, lilt
Treiber v. Lanahan, 23 Md.

116, 63, 64

Tremper v. Conklin, 44 N. Y.

58 (aff. 44 Barb. 456), 450, 718, 1170
Tregerthen v. Lohrum,'6 Mo.

App. 576, - ' - - - 100
Trentman v. Swartzell, 85 Ind.

443, - - - 551, 560

Trenwith v. Meeser, 13 PhiJa. .

366. . - . . 377, 379
Trickett v. Moore, 34 Kan. 755, 1103
Trimble v. Cooiis, 3 A. K. Mar.

(Ky.) 375, - - - 414, 41B
Tripp V. Williams, 14 S. Ca.

503, .... 701, 1151
Troughton v. Hunter, 18 Beav.

470, .... 610, 673
Troup's Case, 39 Beav. 143, 785

Trowbridge v. Cross, 117 111.

109, - - - 180, 290, 1131

v. Cushman, 24 Pick. 310, 450,

1099, 1114

V. Scudder, 11 Cush. 83, 4, 7

Troy Iron & Nail Factory v.

Winslow, 11 Biatchf. 513, 750, 1055
True V. Congdon, 44 N. H. 48, 1073
Truesdell v. Baker, 2 Rich. (S.

Ca.) L. 351, - - - - 575
Truitt V. Baird, 12 Kan. 420, - 876
Trull V. Trull, 13 Allen, 407, - 483
Trullinger v. Corcoran, 81^ Pa.

St. 395, 351

Trumlin v. Goldsmith, 40 Ga.

321, 1147

Trump V. Baltzell, 3 Md, 295, 639,

632, 775

Tucker v. Adams, 63 N. H. 361, 114,

116, 129, 1105, 1106

v. Bradley, 33 Vt. 324, 390, 484

M

clxxv

T0O.]

TABLE OF CASES.

[UhLu

Tucker v. Cole, 54 Wis. 539, 889, 642
V. Oxley, 6 Cranch, 84

(rev. 1 Cr. C. C. 419), - - 1081

■■ V. Peaslee, 86 N. H. 167, 156,

157, 489, 445, 446, 449, 852, 978
Tuckerman v. Newhall, 17

Mass. 581, . - - - 885
Tudor V. White, 37 Tex. 584

(White V. Tudor, 24 id. 639), 618,
690, 1171
Tulane v. McKee, 10 Tex. 335, 1094
Tunis V, Leutze, 1 Mo. App.

211, 869

Tupery v. Lafitte, 19 La. Ann.

296, - - - , - - 1057
Tupper V. Haythorne, Gow, N,

P. 185, ----- 258
Turbeville v. Eyan, 1 Humph.

113, 129 (34 Am. Dec. 622), - 416
Turk V. Nicholson, 30 Iowa,

407, 1081

Turnbow v. Broach, 12 Bush,

455, - - - 528, 526, 694
Turner, Ex parte, 4 D. & C.

169; 1 Mont. & A. 54, - - 838
— ^v. Bayley, 84 Beav. 105

(affg. s. o. as Turney v. Bay-
ley, 4 D. J. & S. 882), - 314, 922

V. Bissell, 14 Pick. 192, 16, 39,

43, 59, 1094
V. Burkinshaw, L. R. 2

Ch. App. 488, - 786
V. Evaijs, 2 E. & B. 512 (3

D. M. G. 740), - - 677
V. Jaycox, 40 N. Y. 470

(explained in Berkshire Wool

Co. V. Juillard, § 452), 452, 453, 504,

564

V. Mcllhany, 8 Cal. 575, 1155,

1158

V. Mayor, 3 Giff. 443, 660, 794

V. Otis, 30 Kan. 1, - 788, 964

V. Eeynell, 14 C. B, N. S.

338, - - . - - - 110

V. Ross, 1 E. L 88, - 703, 705

V. Smith, 1 Abb. Pr. N. S.

804, 1109

Turney, Ex parte, 3 M. D.. &

D. 576, 843

V. Bayley, 4 De G. J. &

Sm. 332, - - - 314, 923,
Turnipseed v. Goodwin, 9 Ala.

872, - 181, 182, 781, 785, 917
Turquand, Ex parte, 3 M. D.

& D. 339, - - - 87, 808
Tustin V. Cameron, 5 Whart.

379, 1080

Tuten V. Eyan, 1 Speara (S.

Ca.),240, -. - - - 454
Tutt V. Adams, 34 Mo. 186, - 360

V, Cloney, 62 Mo. 116, - 680

V. Land, 50 Ga. 889, 255, 762,

781, 819
Tuttle V. Cooper, 5 Pick. 414, 1153

V. Cooper, 10 Pick. 281, 148,

1094
V. Eskridge, 2 Munf.

(Va.) 830, - - - 431, 438
Tweed v. Lowe, 1 Arizona,

488, - - - . - - 1137
Twibill V. Perkins, 8 La. Ann.

132, 328

Twiss V. Massey, 1 Atk. 67, - 835
Twogood V. Swanston, 6 Ves.

485, - - - - - 964
Twyford v. Trail, 7 Sim. 93, - 483
Tyler v. Scott, 45 Vt. 361, 38, 38,

325, 411
Tynberg v. Cohen (Tex.), 2 S.

W. Rep. 734, - - - 1058

Tynerv. Stoops, 11 Ind. 33, - 534
Tyng V. Thayer, 8 Allen, 391, 681,
693, 795, 937
Tyree v. Lyon, 67 Ala. 1, 862, 367
Tyrrell v. Washburn, 6 AUen,

466, 73

Tyson v. Pollock, 1 Pa. (Pen-
rose & Watts) 375, • 384, 524

u.

Uberoth v. Union Nat'l Bk. 9

Phila. 83, - - - - 715
Uhl T. Bingaman, 38 Ind. 865, 621

clxxvi

Uhl.]

TABLE OF CASES.

[Vam.

Uhl V. Harvey, 78 Ind. 36, 619, 1147,
1155, 1157
Uhler V. Browning, 28 N. J. L.
79, 201, 305, 439, 443, 451, 701, 1153

. V. Semple, SON. J. 288, 390, 304,

544, 830, 831, 1101
Ulsry V. Ginrich, 57 111. 581, 339,

34g, 871
Umbarger v. Plume, 36 Barb.

461, 534

Union Bk. v. Eaton, 5 Humph.

501, 448

V. Hall, Harper (S. Ca.),

245, - - ... 680

V. Hodges, 11 Rich. (S,

Ca.) L. 480, - - - . 535

V. Underbill, 31 Hun, 178, 358

Union Nat'l Bk.'v. Underbill,

103 N. Y. 336, - - - 1153
Union & Planters' Bank v. Day,

13 Heisk. 413, - - 446

Union Hotel Co. v. Hersee, 79

N. Y. 454, - - - - 316
United States v. Am. Bell Tele-
phone Co. 39 Fed. Eep. 17, - 1086
V. Athens Armory, 35 Ga.

344, .--..- 721
V. Astley, 3 Wash. C. C.

508, 305, 368, 415, 416, 43(5, 433,

438
— V. Duncan, 4 McLean, 607, 645,

831
— ^ V. Fish, 24 Fed. Eep. 685, 488

V. Glab, 99 U. S. 335, 178, 369

V. Hack, 8 Pet. 371, 831, 833

V. Hallock, U. S. Supreme

Ct. Book 17, Lawy, Coop.

Ass'n, p. 568, - - - 114

V. Lewis, 93 U. S. 618

(affg. 13 Bankr. Reg. 33j, - 831

V. McGinnis, 1 Abb. U, S.

130, 488

V. Shelton, 1 Brook. 517, 831

V. Thomasson, 4 Biss. 99, 468

V. Thompson, Gilpin, 614, 385

V. Williams, 4 McLean,

286, - - 1105,1106, 1111

U. S. Bank v. Binney, 5 Mason,
176, 160, 156, 316, 817, 373, 443,
60S, 933, 978, 979
University of Cambridge v.

Baldwin, 5 M. & W. 580, - 658

Updike V. Doyle, 7 R. I. 446, - 510,

511, 513, 935

Upham V. Hewitt, 43 Wis. 85, 33

V. Naylor, 9 Mass. 490, - 1103

Upson V. Arnold, 19 Ga. 190 (63

Am. Dec. 303), - - 559, 560
Urquhart v. Powell,. 54 Ga. 39, 61,

323
Usher v. Dauncey, 4 Camp.

97, 199, 691

Usry V. Rainwater, 40 Ga. 838, 541
trtley V. Smith, 34 Conn. 390, 557,

669

V.

Vaccaro v, Toof, 9 Heisk.

(Tenn.) 194, - - - 525, 608
Valentine v. Farnsworth, 31

Pick. 176, - 640, 644, 713, 737

V. Hickle, 39 Oh. St. 19, 80, 446

Valett V. Parker, 6 Wend. 615, 861,

1068
Van V. Hussey, 1 Jones, L,

381, . . - - - 1105
Van Alstyne v. Bertrand, 15

Tex. 177, - - 347, 348, 1073
Van Amringe v. EUmaker, 4

Pa. St. 381, - - - 858, 861
Van Brunt v. Applegate, 44 N.

Y. 544, - - - - 291

V. Mather, 48 Iowa, 503, - 338

Vance v. Blair, 18 Oh. 533 (51

Am. Dec. 467), r ■ 78, 870, 871. 873
v. Campbell, 8 Humph.

534, 410

V. Cowing, 13 Ind. 460, 747, 750

Vanderburgh v, Bassett, 4

Minn. 343, - - 381, 383, 466

V. Hull, 20 Wend. 70, - 43

Vandervoort v. Palmer, 4

Duer, 677, 679, - - - 1086

cbcxvii

Van.]

TABLE OF CASES.

[Vic.

Vanderwyck v, Summerl, 3

Wash. C. C. 41, - - - 486
Van Deusen v. Blum, 18 Pick.

239 (29 Am. Dec. 583), - 418, 420
Vandike v. Eosskam, 67 Pa.

St. 330, - - - - 1101, 1106
Van Doren v. Horton, 19 Hun,

7, 687

Vanduzer v. McMillan, S7 Ga.

299, 773

Van Dyke v. Jackson, 1 E. D.

Smith, 419, - - - - 663
Van Eps v. Dillaye, 6 Barb.

244, 612

Van Gilder v. Jack, 61 Iowa,

756, 595

Van Keuren v. Parmelee, 2 N.

Y. 523 (51 Am. Dec. 323), - 703
Van Kirk v. Wilds, 11 Barb.

530, . - - . 1118, 1119
Van Kuren v. Trenton Locom.

& Mach. Mfg. Co. 13 N. J.

Eq. 303, - - 17, 33, 133, 577, 991
Vanness v. Dubois, 64 Ind. 338, 634,

635, 647
Van Ness v. Fisher, 5 Lans.

236, 593

V. Forrest, 8 Cranch, 30, 878,

880
V. Van Ness, 32 N. J. Eq.

669, 983

750
998
569

Van Eeimsdyk v. Kane, 1 Gall.

371 , id. 630, - - - -
Van Rensselaer v. Emery, 9

How. Pr. 135,
Van Eossum v. Walker, ll

Barb. 237, - - - .
Van Sandan v. Moore, 1 Russ.

464, - - . - 574, 1011
Van Scoter V. LefiEerts, 11 Barb.

140, - - - - - 629
Van Staden v. Kline, 64 Iowa,

180, - - - 300, 705, 706
Vansyckle v. Rorback, 6 N. J.

Eq. 234, .... 147

Van Tine v. Crane, 1 Wend,

534, 346

Van Valen v. Russell, 18 Barb.

690, - - • 155, 840, 1053
Van Valkenburg' v. Bradley,

14Iowa, 108, - - - 695,698
Van Wagner v. Chapman, 29

Ala. 173, - - - 825, 833
Vanzant v. Kaj, 3 Humph.

106, - - - 694, 1168, 1169
Varnum v. Campbell, 1

McLean, 313, - - - 1067
Vassar v. Camp, 14 Barb. 341

(aflfd. 11 N. Y. 441), - - 33, 83
Veale v. Hassan, 3 McCord, L.

278, . - . . 693, 705
Venable v. Levick, 2 Head

(Tenn.), 351, 317, 348, 373, 446, 447
Venning v. Deckie, 13 East, 7, 874,

875
Verderwater v. Mills, 19 How.

83 (affg. McAll. 9), - - 908
Vere v. Ashby, 10 B. & C. 388, 64,
321, 445, 503
Vermillion v. Bailey, 27 lU.

330, - - - - 313

Vernon v. Hallam, 34 Ch. D.

748, - - 664, 666, 676, 677
V. Jeffrys, Str. 1146, - 1016

V. Manhattan Co. 33

Wend. 183 (aff. s. c. 17 id.
524), - 52Q, 608, 613, 617, 618

V. Upson, 60 Wis. 418, - 566

V. Vandry, 3 Atk. 119, - 964 '

V. Vernon, 7 Lans. 493

(modified 53 N. Y. 351), ^ - 603

Vetter v. Lentzinger, 31 Iowa,
183, 365

Vetterlein, In Matter of, 5 Ben.
C. C. 311, .... 19.5

V. Barnes, 6 Fed. Rep.

693, - - - - 717, 755
Vice V. Fleming, 1 Tounge &

J. 327, 619

V. Lady Anson, 7 B. & C.

409, more fully reported in 3

C. & P. 19, - - - - 91, 94
Vickers v. Vickers, L. R. 4

Eq. 539, - - - - 247, 1018

clxxviii

Vie.]

TABLE OF CASES.

[Wal.

Vienna v. Harris, 14 La. Ann.

383, 1069

V. McCarty, 1 Dall. 154, 720, 934

Vilas V. Farwell, 9 Wis. 460, 580. 884
Viles V. Bangs, 36 Wis. 181, - 383,
1024, 1038
Villa V. Jonte, 17 La. Ann. 9, 457
Vfnal V. Burrill, 16 Pick. 401, 701,

864
V. West Va. Oil, etc. Co.

110 U. S. 315, - - - 1018
Vincent v. Martin, 79 Ala. 540, 598,
601, 743, 908
Vinsen v. Lockard, 7 Bush,

458, 143

Vinson v. Beveridge, 3 MacAr-

thur (Distr. Col.), 597, - 33, 91, 99
Von Pheel v. Connally, 9 Por-
ter (Ala.), 453, - - 1081
Von Phul V. New Orleans, 34

La. Ann. 261, - - - 176
Voorliees v. Jones, 29 N. J. L.

370, - - 33, 83, 37, 43, 344
Voorhis v. Baxter, 18 Barb.

593, - - - - - 7S0

V. Childs, 17 N. Y. 354, - 747,

748, 750
Vose V. Singer, 4 Allen, 336, - 69
Vosper V. Kramer, 31 N. J. Eq.

430, - - - 551, 560, 733

Vredenburg v. Behan, 33 La.

Ann. 637, - ... 5

V. Lagan, 28 La. Ann. 941, 349

Vulliamy v. Noble, 4 My. &

Cr. 109; 3 Mer. 619, - 610, 747
Vyse V. Foster, L. E. 8 Ch.

App. 309, and L. 7 H. L. 318, 481,
485, 797

w.

Waddell v. Cook, 3 Hill, 47, - 1108

Wade V. Jenkins, 3 GiflE. 509, - 661

y. Metcalf, 16 Fed. Eep.

130, 366

V, Rusher, 4 Bosw. 537, - 933

Wadley v. Jones, 55 Ga. 339, 885,

910, 916

Wadsworth v. Manning, 4 Md.

59, - - 40, 364, 873, 876, 1013
Waggoner t. Gray, 3 Hen. &

M. (Va.) 603, - - - 786, 930

V. Minter, 7 J. J. Mar, 173, 959

Wagner v. Freschl, 56 N. H.

495, ... 322, 324, 348

V. Simmons, 61 Ala. 143, 338,

341, 370

V. Wagner, 50 Cal. 76, . 551

Wagnon v. Clay, 1 A. K. Mar.

(Ky.) 357, - - 349, 365, 373
Wainwright v. Waterman, 1

Ves. Sr. 311, - ... 249
Wait, Re, 1 Jao. & W. 605, . 755

V. Brewster, 31 Vt. 516, . 100

V. Thayer, 118 Mass. 473, 358

Waite, In re, 1 Low. 207; 1

Bankr. Reg. 373, - - 443, 563

V. Dodge, 34 Vt. 181, 153,153

609,1033,1033

V. Foster, 33 Me. 434, - 690

V. Mathews, 50 Mich. 393, 1131

V. Merrill, 4 Me. 103, - 13

Walcott V. Canfleld, 3 Conn.

194, - ' - - - .331
Waldeck v. Brande, 61 Wis.

579 (31 N. W. Rep. 533), 518, 709
Walden v. Sherburne, 15

Johns. 409, 13, 56, 317, 430, 433,
437, 438, 447, 451, 700
Waldo Bank v. Greely, 16 Me.

419, 361

V. Lumbert, 16 Me. 416, 353, 415

Waldron, In re, 98 N. Y. 671, . 453

V. Simmons, 38 Ala. 639, 747,

750
Wales V. Chamberlin, 19 Mo.

500,

Walkenshaw v. Perzel, 4 Robt.

436; 33 How. Pr. 233, -
Walker, Ex parte, 4 De G. F.

& J. 509, ....

, Re, 6 Ontario App. 169, .

835, 833
1886), 26

1073

931

563
563,

— V. Bean (Minn.
N. W. Eep. 233, ■

836

CIXXIX

Wal.]

TABLE OF CASES.

[Wan.

Walker v. Clark, 8 Iowa, 474, 1086

V. Consett, Forrest, 157, - 954

V. Duberry, 1 A. K. Mar. '

(Ky.)189, .... 700

V. Harris, 1 Anstr. 245, . 869

V. Hirsch, 27 Ch. D. 460, 28, 29

V. House, 4 Md. Ch. 89, . 998

V. Kee, 14 S. Ca. 142, 354, 359,

401, 1040

V. Kee, 16 S. Ca. 76, . 1040

V. McCulIoch, 4 Me. 421, . 385

V. Marine Natl. Bank of

Erie, 98 Pa. St. 574, - 566, 667

V. Matthews, 58 111. 196, - 1137

V. Mottram, 19 Ch. D. 855, 667

V. Sharpe, 108 Mass. 154, - 389

V. Steel, 9 Col. 388, - - 1024

V. Trott, 4 Edw. Ch. 38, - 554,

999

V. Wait, 50 Vt. 668, - 72, 173,

197, 580, 882, 884

V. Whipple, 58 Mich. 476, 571,

572
Wall V. Balcom, 9 Gray, 92, - 47
V. Boisregard, 11 Sm. &

K (19 Miss.) 574, - - - 1028
Wallace's Appeal, 104 Pa. Sti

559, .... 548, 927
Wallace v. Berger, 14 Iowa,

183, 983

V, Finberg, 46 Tex. 35, - 139

V. Fitzsimmons, 1 Dall.

248, .... 716, 722
V, Freeman, 25 Tex. Sup.

91, . - .. - . .510
V. Hull, 28 Ga. 68, - . 1108

V. James, 6 Grant's Ch.

163, .... 479, 486

V. Kelsalls, 7 M. & W.

264, .... 383, 1037

V. Milligan, 110 Ind. 498, 753,

935, 971
V. Patterson, 2 H. & McH.

463, 1103

V. Yeager, 4 Phil a. 251, . 403

Wallenstein v. Selizman, 7

Bush, 175, .... 1084

clxxx

Waller v. Davis, 59 Iowa, 103, 347«
507, 509, 570, 585

V. Keyes, 6 Vt. 257, 317, 319,

322, 343, 362, 489
Wallingford v. Burr, 17 Net,

137, 657

WaUis V. Carpenter, 13 Allen,

19, 234

V. Wallace, 6 How. (Miss.)

254, .... .- 1121
Wallworth v. Holt, 4 M. & Cr.

619, 914

Walmsley v. Cooper, 11 A. &

E. 216 ; 3 Per. & Dav. 149, 383, 385

V. Mendelsohn, 31 La.

Ann. 152, .... 788

V. Walmsley, 3 Jones &

Latouche, 556, - . 982, 983

Wain V. Hewes, 5 S. & B.

467, 723

Walpole V. Eenfroe, 16 La.

Ann. 92, .... 761
Walrath v. Viley, 2 Bush, 478, 91
Walsh V. Adams, 3 Den. 125, 1108
V. Lennon, 98 111. 27 (38

Am. Rep. 75), 328, 341, 370, 418,

420

V. Cane, 4 La. Ann. 533, 703

V. Kelly, 42 Barb. 98; 27

How. Pr. 859,- . . 666, 1158

V. Moser, 38 Tex. 290, . 452

Walstrom v. Hopkins, 103 Pa.

St. 118, .... 505, 519
Walton V. Butler, 29 Beav. 428, 266,

838

V. Dodson, 3 C. «& P. 162, 1019

V. Payne, 18 Tex. 60, . 1071

V. Robinson, 5 Ired. (N.

Ca.) L. 341, .... 705

- V. Tomlin, 1 Ired. L. 693, 612,

618
Walworth v. Henderson, 9 La.

Ann. 389, . - - 352, 361
Wamsley v. Lindenberger, 2

Rand. (Va.) 478, ... 148
Wann v. Kelly, 6 Fed. Rep.

584; 2 MoCraiy, 628, 112, 127, 865

Wan.]

TABLE OF CASES.

[Wat.

Wann v. McNuIty, 7 HI. 355 (43
Am. Dec. 58), ... 535

Want V. Reece, 1 Bing. 18, - 879

Ward's Appeal, 81i Pa. St.
370, .... 1111,1113

Ward, Re (U. S. D. C. Tenn.,

1879), 8 Reporter, 136, - - 33, 47

V. Apprice, 6 Mod. 364, 314,

978
V. Barber, 1 E. D. Smith,

483, .... 681, 693
V. Bodeman, 1 Mo. App.

373, - - - '-45,70

V. Brigham, 127 Mass. 24, 4

V. Chase, 35 Me. 515, - 1163

V. Coulter, 4 N. J. L. 208, ll64

-^— V. Dow, 44 N. H. 45, - 1068

V. Gore, 37 How. Pr. 119, 963

V. Johnson, 13 Mass. 148, 535

V. Motter, 3 Rob. (Va.)

536, - . . . 430, 525

V. Newell, 37 Tex. 261, - 1079

V. Pine, 50 Mo. 38, - - 1065

V. Smith, 6 Bing. 749, - 1031

V. Thompson, 33 How.

330 (aflg. Newb. 95), - 33, 908

V. Woodburn, 27 Barb.

346, 534

Warden v. Marcus, 45 Cal. 594, 954
Warder v. Newdigate, 11 B.

Mon. 174 (53 Am. Dec. 567), 282,
363, 411, 1079

V. Stilwell, 3 Jur. N. S. 9, 243

Wardlaw v. Gray, Dudley (S.

' Ca.), Eq. 85, ,747, 749, 750, 835, 848

Wardwell v^. Haight, 2 Barb.

649, ^- - - - - 613
Ware v. Owens, 43 Ala. 413, - 286
Warfleld v. Booth, 33 Md. 63, 676
Waring v. Crow, 11 Cal. 366, 589

V. Robinson, HofEm. (N.

Y.) Ch. 534, - - - 380, 1006

V. Waring, 1 Redf. 205, - 715

Warner, Re, 7 Bankr. Reg. 47,
V. Griswold, 8 Wend. 665,

■ V. Perkins, 8 Cush. 518,

Warner v. Smith, 1 De G. J.

& S. 337, - - - 173, 183

Warren, Re, 3 Ware, C. C. 323, 28,

300, 279, 302, 444, 445, 453, 82^

V. Able, 91 Ind. 107, - 825

V. Ball, 37 111. 76, - 152, 609

V. Chambers, 13 111. 134, 1074

V. Chapman, 105 Mass.

87, 114, 138

- V. Dickson, 30 111. 363, -

■ V. Farmer, 100 Ind. 593, -

■ V. French, 6 Allen, 317, -

- V. Hayzlett, 45 Iowa, 335,

■ V. Perkins, 8 Cush. 518, -

■ V. Schainwald, 63 Cal. 56,

• V. Taylor, 60 Ala. 218,

- V. Wallis, 38 Tex. 225,

- V. Wallis, 43 Tex. 473,

■ V. Warren, 56 Me. 360,
V. Wheelock, 21 Vt. 323,

150

111,

1019

1127

clxxxi

510

833

348

531

1125

B04,

310

184, 831

- 1105

- 1109

- 931
735,

849, 852, 854
Warring v. Grady, 49 Ala. 465, 318

V. Hill, 89 Ind. 497, - - 891

Wart, V. Mann, 124 Mass. 586, 1126
Wartelle v. Hudson, 8 La.

Ann. 486, - - - - 194
Warth V. Radde, 18 Abb. Pr.

396, 1028

Warthen v. Brantley, 5 Ga.

571, 934

Warwick v. Richardson, 10 M.

& W. 384, - - - 638, 640
Washburn v. Bank of Bellows

Falls, 19 Vt. 378, - 454, 834, 825,
929, 1109, 1115

V. Goodman, 17 Pick. 519, 580,

707, 744, 769, 773^ 774, 783,
788, 795, 797, 935
V. Walworth, 183 Mass.

499, - - - 175, 626, 627

V. Washburn, 23 Vt. 576, 305

Washing v. Wright, 8 Ired. L..

1. 1168

Wass V. Atwater, 33 Minn. 83, 60
Waterer v. Waterer, L. R. 15

Eq. 403, .... 287

Wat.]

TABLE OF CASES.

[Web.

Waterman v. Hunt, 2 R. I. 298, 643,
559, 560, 883, 884

V. Johnson, 49 Mo. 410, - 597

— ^ V. Lipman, 67 Cal. 26, - 1066
Waters v. Taylor, 15 Ves. 10, 233

993, 999

V. Taylor, 2 V. & B. 299, - 581

-- — V. Tompkins, 3 C. M. &

E. 723,, 489

Wat kins v. Fakes, 5 Heisk.

185, - 736, 739, 740, 933, 935
V. Terre Haute, etc. E. E.

8 Mo. App. 569, - - - . 66
Watkinson v. Bank of Penn. 4

Wliart. 483 (34 Am. Deo.

631), ... - 617,618
Watney v. Wells, L. R. 2 Ch.

App. 250, . - - . 783

V. Wells, 30 Beav. 56, - 504

Watson, Ex parte, 19 Ves. 459, 16,

155, 840

V, Fletcher, 7 Gratt. 1, 112, 116,

119, 127

V. Gabby, 18 B. Mon. 658, 1105,

1109

V. Lovelace, 49 Iowa, 558, 1137

V. Miller, 55 Tex. 289, - 722

V. Murray, 28 N. J. Eq.

257, . . - . 113, 119
V. Owens, 1 Eioh. (S. Ca.)

L. Ill, - - - 535, 535, 538

V. Wells, 5 Cbrin. 468, - 392

V. Woodman, L. E. 20 Eq.

721, 704

Watt V. Kirby, 15 BI. 200, 446, 507,

508
Watterson v. Patrick (Pa.

1885), 1 Atl. Rep. 603, - 608, 610
Wattles V. Moss, 46 Mich. 53, - 1158
Watts V. Rice, 75 Ala. 289, - 1064
V. Robinson, 32 U. C. Q.

B. 363, - . ... 530

V, Sayre, 76 Ala. 897, - 1079,

1084
Waugh V. Cariger, 1 Yerg. 31, 420
V. Mitchell, 1 Dev. & Bat.

Eq. 510, - - - 977

Waugh V. Carver, 2 H.£l. 235;

1 Sm. Lead. Cas. 968, 16, 90, 92, 157
Way V. Fravel, 61 lud. 162, - 504
V. Stebbins, 47 Mich. 296, 281,

284, 294, 976
Waydell v. Luer, 3 Den. 410, - 523
Wayland v. Elkins, 1 Stark.

273; Holt, N. P. 337, - - 67
Wayne v. -Clay, 1 A. K. Mar.

357, - .- - - - 317
Wayt v. Peck, 9 Leigh, 434, - 740
Weatlierly v. Hardman, 68 Ga.

592, 647

Weaver, Ee, 9 Bankr. -Eeg. 133, 694

V. Ashcroft, 50 Tex. 437, 561,

563, 1105

V. Carpenter, 43 Iowa, 343, 10^5,

1086

V. Rogers, 44 N. H. 112, - 1037

V. Tapscott, 9 Leigh (Va. ),

434, - - 205, 423, 440, 451

V. Weaver, 46 N. H. 188, 825,

832, 848, 847
Webb, Re, 2 J. B. Moore, 500, 761

V. Fordyce, 55 Iowa, 11, - 765,

983, 984

V. Helion, 3 Robt. (N. Y.)

635, 983

V. Liggett, 6 Mo. App. 845, 80

Webber v. Williams, 36 Me.

513, - - - 178, 269

Weber v. Defor, 8 How. Pr.

502, - . - - . 551
Webster v. Bray, 7 Hare, 159, 181,

770

V. Stearns, 44 N. H. 498, 331,

383

V. Webster, 3 Swanst. 490, 610,

673
Wedderburn v. Wedderburn,

2 Keen, 722; 4 M. & Cr. 41;

22 Beav. 84, 658, 744, 745, 794, 797,

798
Weed V. Kellogg, 6 McLean,

44, 332

V. Peterson, 12 Abb. Pr.

N. S. 178, - ... 670

clxxxii

Wee.]

TABLE OF CASES.

[Wes.

Weed V. Richardson, 2 Dey. &

Bat. L. 535, - - - 347,363
Weeks v. Mascoma Rake Co.

58N. H. 101, - - - 399,431
Weems v. Stallings, 3 Har. &

J. 3U5, - - . - - - 43
Weil V. Guerin, 43 Oh. St. 299,

303, - -" . . 454

V. Jones, 70 Mo. 560, 718, 733,

1079
Weinrich v. Koelling, 21 Mo.

App. 133, ... - 1133
Weismaa v. Smith, 6 Jones

(N. Ca.), Eq. 124, - - - 942
Weissenborn v. Seighortner,

21 N, J. Eq. 483, -
Welborn v^. Coon, 57 Ind, 270,

993

717,
733
403

Weld V. Peters, 1 La. Ann. '433,
Weldon v. Beckel, 10 Dafy,
473, 761

Welker V. Wallace, 31 Ga. 363, 483
Welland V. Huber, 8 Nev. 203, 961
Welles V. March, 30 N. Y. 344, 338,

.340, 583
Wellesford v. Watson, L. R. 8

Ch. App. 473, - - 233

Wellman v. Harker, 3 Oreg.

253, - - - 990, 999

V. Southard, 30 Me. 425, - 453

WeUover v. Soule, 30 Mich.

481, - ... 1125

Wells V. Babcock, 56 Mich.

276, 783, 788, 788, 917, 919, 1136

V. Carpentpr, 65 111. 447, 892

V. Collins, 11 Lea, 213, - 907

V. Ellis, 68 Cal. 243(9Pac.

Rep. 80), - 544, 583, 587, 1131
V. Erstein, 24 La. Ann.

317, . - - - - 958

V, Evans, 20 Wend. 251

(reversed in part in Evans v.
Wells, Lockw. Rev. Cas. 390;

23 id. 334), - - - 353,415
V. Masterman, 3 Esp. 731, 441

V. Mitchell, 1 Ired. (N.

Ca.) L. 484, - - - - 1037

Wells V. Ross, 7 Taunt. 403, - 707

V. Simmons, 66 Mo. 617,

630, _ - - -' - - 138

V. Strange, 5 Ga. 33, 930, 932

■ V. Turner, 16 Md. 133, 317, 333

V. Wells, 1 Ventr. 40, - ' 893

Wells, Fargo & Co. v. Clark-
son, 5 Montana, 836, - ' - :^094
Welsh V. Canfleld, 60 Md. 469, 230

V. Speakman, 8 Watts &

S. 257, . - - 1147, 1154

Wendall v. Osborne, 63 Iowa,

99, 1065

Wentworth v. Raiguel, 9 Phila.
275 (s. c. as Raiguel's Appeal,
80 Pa. St. 334), - 455, 645, 761
Werner v. Leisen, 31 Wis. 169, - 72,
591, 910. 939
Wesson v. Newton, 10 Cush.

114, - - 337

West V. Chasten, 13 Fla. 315, 533,

533, 551

V. Citizens' Ins. Co. 27

Oh. St. 1 (33 Am. Rep. 294),

373,
1024
1081
750
184,

V. Kendrick, 46 Ga. 536,

V. Randall, 3 Mason, 181,

V. Skip, 1 Ves. Sr. 239, -

544, 810
V. Valley Bank, 6 Oh. St.

168, " - - 172, 195

West Branch Bank v. Fulmer,

3 Pa. St. 399, - 399, 400

West of England, etc. Bk. v.

Murch, L. R. 33 Ch. D. 138, 294
West Hickory Min.- Ass'n v.

Reed, 80 Pa. St. 38, ' - 290, 298
West Point Foundry Ass'n v.

Brown, 3 Edw. Ch. 284, 89

Westbay v. Williams, 5 111.

App. 531, - - - - 832
Westcott, Ex parte, L. R. 9

Ch, App. 636, - 836, 844
v. Nickerson, 120 Mass.

410, - - - - 605

V. Price, Wright (O.), 220, 78,

883

clxxxiii

Wes.]

TABLE OF CASES.

[Whl

Westerlo v. Evertson.lWend.

633, ... - 853, 861
Western Assurl Co. v. Towle,

65 Wis. 347, - - - ' 331, 333
Western Stage Co. v. Walker,

2 Iowa, 504, 431, 433, 433, 686, 707
Weston, Ex parte, 13 Met. 1, 453,

453, 839

V. Barton, 4 Taunt. 673, 649, 651

V. Ketcham, 39 N. Y. Su-
perior Ct. 54, - - 305, 438
Westphal V. Henney, 49 Iowa,

543, - - - 930, 933

Wetherbee v. Potter, 99 Mass.

354, 875

Wether wax v. Paine, 3 Mich.

555, 1133

Wetmore v. Baker, 9 Johns.

307, - - - - 66, 861
V. Woodbridge, Kirby

(Conn.), 164, ... - 849
Wetter v. Schlieper, 4 E. D.

Smith, 707 ; 15 How. Pr. 368, 338,
340, 403
Weyer v. Tiiorn burgh, 15 Ind.

134, , - - 824, 835, 838, 833
Whaley v. Moody, 3 Humph.

(Tenn.)495, - - - - 349
Wharton v. Douglass, 76 Pa,

St. 273, 850

V. May, 6 Ves. 37, - - 964

V. Woodburn, 4 Dev. Sc

Bat, L. 507, - 348, 418, 423, 433
Wheat V. Hamilton, 53 Ind. *

256, - - 175, 507, 511, 640
Wheatcrof t v. Hickman, 9 C.

B. N. S. 47 (s. c. on appeal as

Cox V. Hickman),
Wheatley v. Calhoun, 13 Leigh

(Va.), 364 (37 Am. Dec. 654),

387, 889

V. Tutt, 4 Kan. 340, - 334, 1088

V. Wheeler, 34 Md. 63, 978, 979

Wheeler, Ex parte. Buck. 35, 541

V. Arnold, 30 Mich. 304, 864

V. Farmer, 38 Cal. 303. 59, 69,

894

19

383,

Wheeler v. McEldowney, 60

111. 358, 94

V. Page, 1 Wall. 518, - 806

V. Rice, 8 Cush. 305, - 365

V. Van Wart, 9 Sim. 193, 574

V. Wheeler, 111 Mass. 247, 864

Wheelook v. Doolittle, 18 Vt.

440(46 Am. Dec 163), - 703, 705
Whelen v. Watmough, 15 S.

& E. 153, - ... 374
Whetham v. Davey, 30 Ch. D.

574, 185

Whetstone v. Shaw, 70 Mo,

575, - - - . 860, 862
Whigham's Appeal, 63 Pa. St.

194, ■ - - - 648, 1101, 1106
Whincup V. Hughes, L. R. 6 C.

P. 78, 807

Whipple V. Parker, 29 Mich.

369, - - - 6, 8, 73, 308
Whitaker v. Bledsoe, 34 Tex.

401, - ... 881

V. Brown, 16 Wend. 505

(overrules s. c. 11 id. 705), 348,

361, 370, 481

V. Salisbury, 15 Pick. 534, 530

Whitcher v. Morey, 39 Vt.

459, .... 115, 117
Whitcomb v. Converse, 119

Mass. 38 (20 Am. Rep. 311), - 181,
331, 815, 816, 819

V. Whiting, ^Dougl. 653, - 705

White, Ex parte, L. E. 6 Ch.

397, 481

, In re, 4 Ont. App. 416, - 634

V. Ansdell, Tyr. & Gra.

785, 879

V. Barton, 18 Beav. 193, . 973

V. Bullock, 18 Mo. 16, - 817

V. Ch'apin, 134 Mass. 330, - 716

V. Conway, 66 Cal. 383, . 970

V. Cox, 3 Hay. (Tenn.) 79, 309

V. Davidson, 8 Md. 169, - 350

V. Dougherty, Mart. &

Yer. (Tenn.) 309, 184, 836, 843, 848

V. Fitzgerald, 19 Wis. 480, 64

V. Gardner, 37 Tex. 407, 598, 743

clxxxiv •

Whi.]

TABLE OF CASES.

[Wm.

White V. Gibson, 11 Ired. L.

283, - . . . . 1152

V. Hale, 3 Pick. 291, - 705

V. Haiiow, 5 Gray, 463, - 852

V. Jones, 38 111. 159, 1105, 1111

V. Joues, 14 La. Ann. 681, 381,

692
V. Jones, 1 Eobt. 321 ; 1

Abb. Pr. (N. S.) 328, - 664, 669
V. Kearney, 2 La. Ann.

639, .... 322, 707

V. Leavitt, 20 Tex. 708, - ,1094

V. Magann, 65 Wis. 86, 644, 983

V. Murphy, 3 Rich. L.

369, 612

V. Parish, 20 Tex. 688, 551, 560,

713, 824

v. Russell, 79 111. 155, 735, 736

V. Savery, 50 Iowa, 515, - 1034

V. Schnebly, 10 Watts,

217, 1119

V. Smith, 12 Rich. (S. Ca.)

L. 595, .... 463, 471
V. Thielens, 106 Pa. St.

173, .... 510, 511

V. Toles, 7 Ala. 569, - . 411

V. Tudor, 24 Tex. 639 (T.

V. W. 37 id. 584), - 618, 690, 695,

1171
V. Cfnion Ins. Co. 1 Nott

& McC. 556 (9 Am. Dec. 726), 723,

' 782
V. Waide, Walk. (Miss.)

263, .... 735, 849

V. White, 5 GiU, 359, 570, 934

V. White, 4 Md. Ch. 418, - 981

V. Williams, Willm. Woll.

& Hod. 52, - - - - 437
V. Woodward, 8 B. Mon.

484, 1101, 1105, 1109, 1111, 1113
Whitehead v. Bink of Pitts-
burg, 2 Watts & S. 173, 695, 1165
V. Chadwell, 2 Duvall, 432, 837

V. Hughes, 2 Cr. & M.

318; 4 Tyrwh. 92, - - - 1036
Whitehill v. Shickle, 43 Mo.
537, , . - - - 56, 879

White Mountain Bank v. West,
46 Me. 15, - . . 259, 263

Whitesides v. Collier, 7 Dana,
283, . . . 274, 275

V. LafEerty, 3 Humph. 150, 795

V. Lee, 2 111. 548, - 637, 1073

Whiting V. Parrand, 1 Conn.

60, 707

V. Leakin, 66 Md. 355, 43, 571,

948, 1143, 1147

V. Withington, 3 Cush.

413, . - ' . . - 1094
Whitis V. Polk, 36 Tex. 603, - 181
Whitley v. Lowe, 25 Beav. 431 ;

3 DeG. & J. 704, - . 705

Whitlock V. McKechnie, 1

Bosw. 437, - - - 191, 1035
Whitman v. Boston & Me. B.

E. 3 Allen, 133, - . .293

-^— V. Keith, 18 Oh. St. 134, . 173,

1059, 1061, 1062, 1090, 1128

V. Leonard, 3 Pick. 177, - 341,

589, 636

V. Porter, 107 Mass. 522, 73, 73

458, 760

V. Robinson, 31 Md. 30, - 574,

594, 597, 998

V. Wood, 6 Wis. [676], 652, 1073

Whitmore, Ex parte, 3 M. &

A. 637 ; 3 Deac. 365 (s. C. on

appeal as Ex parte Jackson,

2 M. D. & D. 146), - 512, 516
V. Adams, 17 Iowa, 567, 349

V. Mason, 3 Johns. &

Hem. 304, .... 246

V. Parks, 3 Humph. 95, 561,

569

V. Shiveriok, 3 Nev. 388, 184,

186, 1086, 1139
Whitney v. Burr, 115 111. 389, - 788

V. Cook, 5 Mass. 189, 836, 337,

714

V. Gotten, 53 Miss. 689, - 283,

290, 291, 393, 294, 822, 931, 940
V. Dean, 5 N. H. 349, 565, 568

V. Dutch, 14 Massj 457 (7

Am. Dec. 339), - - 143, 145

clxxxv

Whi.]

TABLE OF CASES.

[WiL.

Whitney v. Farrand, 1 Conn.

60, - - ... 707

V. Ladd, 10 Vt. 165, - - 1105

V. Ludington, 17 Wis. 140, 35,38

V. Purrington, 59 Cal. 36, 862

v. Reese, 11 Minn. 138

(overruled), - . . 703, 1094

V. Sterling, 14 Johns. 215, 1145,

1151, 1155
Whittier v. Gould, 8 Watts,

485, - ... 534

Whittaker v. Howe, 3 Beav.

383, .... 314, 678
Whittemore v. Elliott, 7 Hun,

518, - . 147, 149, 1099

Whittenton Mills v. Upton, 10

Gray, 583, .... 133
Whittle V. McFarlane, 1

Knapp, 311, ... 770

V. Skinner, 23 Vt. 531, - 548

Whitton V. Smith, 1 Freem.

(Miss.) Oh. 173, - . 403, 587

V. State, 37 Miss. 379, - 488

Whitwell V. Arthur, 85 Beav.

140, 581

V. Warner, 30 Vt. 425, - 498

Whitworth v. Ballard, 56 Ind.

279, 690

V. Benbow, 56 Ind. 194, - 551

V. Harris, io Miss. 483, - 1014

V. Patterson, 6 Lea, 119, - 43,

105, 155, 338, 608
Wickham v. Davis, 24 Minn.

167,. .... 930, 1109

V. Wickham, 3 K. & J. 478, 330,

331
WicklifEe v. Eve, 17 How. 468, 739,

923
Wicks V. Lippman, 13 Nev.

499, - - - 858,887,893
Widdifleld v. Widdifield, 3

Bin. 345, - - - - 1145
Wiegand v. Copeland, 14 Fed.

Rep. 118; 7 Sawy. 443, 381, 970,
974, 977
Wiesenfeld v. Byrd, 17 S. Ca.

106, - - 454, 494, 727, 749

446

61

Wiesenfeld v. Stevens, 15 S.

Ca. 554, 561

Wiggin V. Cumings, 8 AUen,

353, 864

V. Goodwin, 63 Me. 389, - 585,

629, 630

V. Lewi.s, 12 Gush. 486, 349, 1094

Wiggins V. Graham, 51 Mo. 17, 43

V. Hammond, 1 Mo. 121,

Wightman v. Townroe, 1 M.

& S. 412, ....
Wilby V. Phinney, 15 Mass.

116, - 735, 773, 858, 864, 886

V. Sledge, 8 Ga. 532, - 1049

Wilcox V. Bodge, 12 111. App.

517, 416

V. Jackson, 7 Colorado,

521, - - 335, 338, 403, 406

V. Kellogg, 11 Oh, 394, - 560

V. Matthews, 44 Mich. 193, 1150

V. Singletary, Wright (O.),

420, - - - - - 386

V. Soper, 13 B. Mon. 411, 722

V. Wilcox, 13 Allen, 252, 297

V. Woods, 4 111. 51, - - 1067

Wilcoxson V. Burton, 37 Cal.

328, .... 877, 378
Wild V.Davenport, 48 N. J. L.

129, - - 23, 51, 52, 53, 601

V. Dean, 3 Allen, 579, 502, 503,

505, 833

V. Milne, 36 Beav. 504, 974, 977

Wilde, Succession of, 31 La.

Ann. 371, - - - - 764

V. Jenkins, 4 Paige, 481, - 261,

365, 534, 962

Wilder v. Keeler, 3 Paige, 167, 747,

750, 825, 833, 843, 848

V. Morris, 7 Bush, 420, - 764

V. Savannah, 70 Ga. 760

(48 Am. Rep. 598), - - 175
Wildes V. Chapman, 4 Edw.

Ch. (N. Y,) 669, - - 553, 554

V. :Fessenden, 4 Met. 13, 505, 519

Wiles V. Maddox, 26 Mo. 77, 1101,

1105, 1106, 1109, 1111

V. March, 30 N. Y. 344, 339

clxxxvi

WiL.]

TABLE OF CASES.

[WiL.

Wiley's Appeal, 8 Watts & S.

244, 668

Wiley, Ee, 4 Biss. 314, - - 660
V. Baumgardner, 97 Ind.

66 (49 Am. Eep. 437), - 664, 676

V. Griswold, 41 Iowa, 375, 331

V. Logan, 95 N. Ca. 858, - 1019

V. Sledge, 8 Ga. 583, 454, 746,

1117
Wilgus V. Lewis, 8 Mo. App.

836, 507, 508

Wiihelra v. Caylor, 33 Md. 151, 899,
943, 943, 946
Wilkea v. Clark, 1 Dev. (N. Ca.)

L. 173, - - - - 33, 1033
Wilkins v. Boyce, 3 Watts, 39, 490
V. Davis, 3 Lowell, 511 ; 15

Bankr. Reg. 60, 583, 753, 754, 1036

V. Earl, 44 N. Y. 173, - 1159

V. Fitzhugh, 48 Mich. 78, 530

V. Pearce, 5 Den. 541 (afid.

in 3 N. Y. 469), - - 336, 348
V. Wardens, etc. of St.

Mark'sChurch, 53Ga. 351, - 75
Wilkinson v. Frasiei", 4 Esp.

183, 16,59

V. Gilchrist, 5 Ired. L.

338, 1057

V. Henderson, 1 M. & K.

583, - - - - 748

V. Jett, 7 Leigh (Va.),

115 (30 Am. Dec. 493), - - 41, 43

V. Page, 1 Hare, 336, - 334

V. Tilden, 9 Fed. Rep. 683, 990

V. Yale, 6 McLean, 16, 561, 563

Willet V. Brown, 65 Mo. 138

(37 Am. Rep. 3C5), - 281, 390

V. Chambers, Cowp. 814, 199,

475
Willett V. Blanford, 1 Hare,

253, ----- 797

V. Stringer, 17 Abb. Pr.

153, - - - 403, 406, 481
Willey V. Carter, 4 La. Ann.

66, 299

V. Thompson, 9 Met. 339, 631,

■ 611, 737

William Bagaley, The, 5 Wall.

377, - - - 70, 401, 582
Williams, Ex parte, 11 Ves. 3, 551,

559, 679
, Ex parte, 8 M. D. & D.

433, 837

, Ex parte, Buck. 13, 503, 1016

, Re, 8 Woods, C. O. 493, 195

, Re, 5 Boston Law Rep.

, 403, 835

V. Adams, 16 111. App.

564, ,560

V. Barnett, 10 Kan. 455, - 333,

403, 545, 1044

V. Barton, 3 Bing. 139

(affg. 5 B. & Aid. 395), - 378

V. Beaumont, 10 Bing.

360, 1031

V. Bingley, 3 Vern. 378, - 990

V. Bowers, 15 Cal. 331, - 613,

618

V. Boyd, 75 Ind. 286, - 534

V. Brimhall, 18 Gray, 463, ' 383,

411, 1046, 1079, 1084

V. Butler, 85 111. 544, - 105

V. Connor, 14 S. Ca. 631, 113,

117, 631, 1135

V. Donaghe, 1 Rand. (Va.)

300, - - - 1049

Y. Frost, 37 Minn. 355, - 340

V. Gage, 49'Miss. 777, 834, 1103,

1111
V. Gilchrist, 11 N. H. 535, 347

v". Gillies, 75 N. Y. 197

(rev. 13 Hun, 422), 205, 303, 488,

443, 445
V. Hamilton, 4 N. J. L.

350, 1081

V. Hayes, 30 N. Y. 58, - 941

V. Henshaw, 11 Pick. 79

(33 Am. Dec. 866), 858, 864, 875,
876, 877
V. Henshaw, 12 Pick. 378

(33 Am. Dec. 614), - - ' 864
V. Hitchings, 10 Lea, 826, 386

V, Hodgson, 3 Har. & J.

474, - - - 331,430,421

clxxxvii

WiL.]

TABLE OF CASES.

[WiL.

■Williams v. Jones, 5 B. & C.

108, - - - 85, 208, 331

V. Lawrence, 47 N. T. 463, 70

V. Lawrence, 53 Barb. 330, 184

V. Love, 3 Head, 80, 184, 290,

295, 739, 823

V. Mathews, 14 La. Ann.

11, 610

V. Manning, 41 How. Pr.

454 (Ct. App. 1870, not else-
where reported), - - - 700

V. Moore, Phila. (N. Ca.)

Eq. 311, - - - . 735, 1003

V. More, 63 Cal. 50, - 381, 437

V. Muthersbaugh, 29 Kan.

730, - - - 456, 1117, 1119

V. Roberts, 6 Cold. 403, - 335,

338, 403

V. Rogers, 14 Bush, 776, - 54,

822, 323, 454, 456, 459, 523, 537, 610,
628, 1094, 1147

V. Saginaw, 51 Mich. 120.' 176

: V. Smith, 4 Bush, 540, 1109,

1111

V. Sommerville, 8 Leigh,

415, - - - - - 403

V. Soutter, 7 Iowa, 435, 23, 47,

88, 1135, 1143, 1158

V. Thomas, 6 Esp. 18, 345, 439

V. Walbridge, 3 Wend. 415, 347,

363

V. Whedon, 39 Hun, 98, 726,

733

V. Whitmore, 9 Lea, 263, 709

V. Williams, L. R. 3 Ch.

App. 294, - - - - 209
V. "Wilson, 4 Sandf . Ch.

379, .... 658, 667
Williamson v. Adams, 16 111.
■ App. 564, - - - 551, 554

V. Fontain, 7 Baxter

(Tenn.), 313, - - - 390,397

V. Haycock, 11 Iowa, 40, 849,

863

V. Johnson, 1 B. & C. 146 ;

2 D. & R. 281 (explained in
Faith V. Richmond), - - 203

Williamson v. McGinnis, 11 B.
Mon. 74, .... 885

V. Wilson, 1 Bland (Md.

Ch.),418, - - - 593,994

Willings V. Consequa, Pet. C.

C. 301-307, .... 885
Willis V. Bremner, 60 Wis.

622, - - - 446,449,566
V. De Castro, 3 C. B. N. S.

216, 386

V. Dyson, 1 Stark. 164, - . 325

V. Freeman, 35 Vt. 44, 180, 381,

nil

V. Henderson, 43 Ga. 334, 1112

V. Hill, 2 Dev. & Bat. (N.

Ca.) L. 331, - 438, 446, 700, 705

V. Jernegan, 2 Atk. 351, 954

T. Morrison, 44 Tex. 37, - 1094

Wills V. Cutler, 61 N. H. 407, 334
V. Simmonds, 8 Hun, 189

(affg. 51 How. Pr. 48), 43, 874, 889
Willson V. Nicholson, 61 Ind.

241, ... 715, 722, 731

V. Owen, 30 Mich. 474, 72, 115,

127
Wilmer v. Currey, 2 De G. &

Sm. 347, - - ,239, 455, 642

Wilson, Ex parte, L. R. 7 Ch.

App. 490. - - - - 841

V. Albright, 3"G. Greene

(Iowa), 125, .... 1135

V. Bailey, 9 Dowl. P. C.

18 (s. O. as Wilson v. Lewis,

3 M. & G. 197), - - 347, 509

V. Bell, 17 Minn., 61, 311

V. Brown, 6 Ont. App.

411, - - 339, 349, 371, 426

V. Campbell, 10 111. 383, 78, 870

V. Clarke, 27 Miss. 270, - 1162

T. Cobb, 28 N. J. Eq.

177, 3

V, Col man, 1 Cranch, C. C.

408, .... 1147, 1155

v; Conine, 2 Johns. 280, - 1111,

1112

V. Cutting, 10 Bing. 436, 879

V. Dargan, 4 Rich. L, 544, 424

clxxxviii

WlL.]

TABLE OF CASES.

[Win.

Wilson V. Davis, 1 Montana,

183, - - 644, 587, 591, 820
V. Dosier, 68 Ga. 603, 385, 510,

515
V. Elliott, 57 N. H. 316, 376,

408

V. Forder, 20 Oh. St. 89

(5 Am. Rep. 637), ... 698
V. Genesee Mut. Ins. Co.

16 Barb. 511, - - - 273
V. Greenwood, 1 Swanst.

471, 346, 563, 583, 591, 679, 995,
996, 997, 1003

V. Home, 37 Miss. 477, - 456

V. Hunter, 14 Wis. [683],

744, ... 293, 416, 417
V. Jennings, 4 Dev. L. 90, 534

V. Johnstone, L. R. 16

Eq. 606, - - 805, 806, 809

V. Keedy, 8 Gill, 195, - 1081

V. King, Morris (Iowa),

105, ... - 1059,1065
V. Lewis, 3 M. & G. 197

(S. C. as Wilson v. Bailey, 9

DowL P. C. 18), - - 347, 509
V. Lineberger, 88 N. Ca.

634, - - - 317, 766, 775

V. Lloyd, L. R. 16 Eq. 60, 533

V. Lopmis, 55 111. 353, 139, 140

V. McCarty, 25 Grant's

Ch. (Up. Can.) 153, 781, 783, 788
V. McConnell, 9 Rich. Eq.

500, - - - - 825

Y. Mower, 5 Mass. 41 1', - 383

V. Niles, 3 Hall (N. f .),

858, - - - 1089

V. Richards, 28 Minn. 337, 333,

341, 351

V. Robertson, 21 N. Y. 587, 566

V. Runkel, 38 Wis. 536, 1081

V. Simpson, 89 N. Y. 619, 218,

598
V. Soper, 13 B. Mon. 411

(56 Am. Dec. 573), 550, 559, 560,

639, 715, 718, 726, 731, 732, 739, 743,

851
V. Stanhope, 3 Coll. 639, 914

Wilson V. Stilwell, 9 Oh. St.

467, - 1 ... 637

V. Stilwell, 14 Oh. St. 464, 533

V. Strobach, 59 Ala. 488, 938,

1109, 1111, 1113
V. Torbert, 8 Stew. (Ala.)

296 (21 Am. Dec. 633), . 701

V. Turnman, 6 M. & G.

236. -■ . - - .469
V. Wallace, 8 Serg. & B.

53, 1019, 1032

V. Waugh, 101 Pa. St. 333, 704

V. Whitehead, 10 M. & W.

503, 874

V. Williams, 14 Wend.

146 (28 Am. Deo. 518), - 349, 358,
363, 363
Wilt V. Bird, 7 Blackf. 258, - 850
Wimpee v. Mitchell, 29 Ga.

276, 839

Winchester v. Whitney, 138

Mass. 549, .... 1153
Windham v. Patterson, 1

Stark. 144, . . -, . 868
Windham Co. Bk. v. Kendall,

7 R. L 77, . 348, 399, 401, 430
Winship v. Bank of United

States, 5 Pet. 539 (5 Mason,

176), 150, 156, 157, 193, 203, 321,

323, 337, 341, 348, 351, 370, 443,
459, 1153
Winslow V. Chiflelle, Harp.

(S. Ca.)Eq. 25, . ' . 382, 286

V. Newlan, 45 III. 145, 383, 700

Winsor v. Savage, 9 Met. 346, 788
Winston v. Ewing, 1 Ala. 129

(34 Am. Deo. 768), - - 1103

V. Taylor, 38 Mo. 83, - 608

Winter v. Innes, 4 My. & Cr.

101, .... 748,750

V. Wheeler, 7 B. Mon. 25, 963

Winters, Estate of, 1 Myrick

(Cal.), Prob. Rep. 131, . . 3

Wintersmith v. Pointer, 2 Met.

(Ky.)457, .... 1111
Wintle v. Crowther, 1 Cr. & J.

313; 9 L. J. Ex. 65, - - 445

clzxxix

WiE.]

TABLE OF CASES.

[Woo.

Wirthman v. Miles, 1 Start,

181, 286

Wise V. Copley, 36 Ga. 508, - 430,

1083
V. Frey, 7 Neb. 134 (29

Am. Rep. 380), ... 1131
\-. Pattersoii, 3 G. Greene

(Iowa), 471, - - - . 1162
Wish V. Small, 1 Camp. 331, - 45
Wisham v. Lippincott, 9 N. J.

Eq. 353, .847

Wiawall v. Ayres, 51 Mich.

324, 984

Witcher v. Brewer, 49 Ala.

119, 463

■Witherhead v. Allen, 28 Barb.

661, 1094

Withers v. Withers, 8 Pet.

355, - - 237, 766, 978, 979
Withington v. Herring, 3 Moo.

& P. 30, - - - - - 44
Witmer v. Schlatter, 2 Rawle,

359, . . - - . 8
Witt V. Corcoran, cited in

notes to Wellesford v. Wat-
son, L. R. 8 Ch. App. onup.

476, and further explained in

Plews V. Baker, L. R. 16 Eq.

564, 571, - - - - 233

Witter V. McNeil, 4 111. 433, - 419

V. Richards, 10 Conn. 37, 155,

385, 928, 1099
Wittner v. Schlatter, 15 S. &

R. 150, - '- - - - 1160
Wittowsky v. Reid, 82 N. Ca. .

116, 489

Wittram v. Van Wormer, 44

ni. 525, - . - - 347, 446
Woddrop V, Price, 3 Desaus.

(S. Ca.) 203, . - - - 825
Wolbert v. Harris, 19 Grant's

Ch. (Up. Can.) 141, - - 996

V. Harris, 7 N. J. Eq. 605, 991

Wolcott V. Gibson, 51 111. 69, 111
Wolf V. Mills, 56 111. 360, - 472
Wolfe V. Gilmer, 7 La. Ann.

583, 181

WoUe V. Brown, 4 Whart. 365, 1145
Wood's Estate, 1 Ashm. (Pa.)

314, 739

Wood, Ex parte, 3 M. D. & D,

283, 835

, Ex parte, 10 Ch. D. 554, 541,

553

V. Barber, 90 N. Ca. 76, 703, 705

V. Beath, 23 Wis. 254, 33, 228,

591

V. Braddick, 1 Taunt. 104, 331,

699

V. Connell, 1 Whart, 381, 429

V. Connell, 2 Whart. 542, 156,

161^
-r— V. CuUen, 13 Minn. 394, - 86,
854, 1657
V. Dodgson, 2 M. & S. 195 ;

3 Rose, 47, - - - - 846
V. Duke of Argyle, 6 Man.

& Gr. 926, - - 89, 98

V. Dutchman, 80 Ind. 524, 8.^9

V. Erie R. R. Co. 73 N. Y.

196 (affg. 9 Hun, 648), - - 193
V. Fox, 1 A. K. Mar. (Ky.)

451, .'-.-- 575

V. Gault, 2 Md. Ch. 433, 575.

954

V. Johnson, 13 Vt. 191, - 899

V. Lusoomb, 28 Wis. 287, 463,

471

V. Merr'ow, 25 Vt. 340, - 899

V. Montgomery, 60 Ala.

500, 285

V. O'Kelley, 8 Cush. 406, 1032

V. PenneU, 51 Me. 52, ' 91, 93,J94,

96, 97, 1157
V. Scoles, L. R. 1 Ch. App.

369, - - 251, 785, 813, 816
V. Shepherd, 2 Patt. & H,

(Va.) 442, - - - 336, 544

V. Vallette, 7 Oh. St. 173, 49

V. Wilson, 3 Cr. M. & R."

341, 334

V. Witherow, 8 Phila. 517.

(Reversed by Meily v. Wood,

71 Pa. St. 488, q. v.)

cxc

Woo]

TABLE OF CASES.

[Wbi.

Wood V. Woad, L. E. 9 Ex.

190, - . 241, 343

V. Wood, 36 Barb. 356, - 775

Woodbridge V. Swann, 4 B. &

Ad. 633, ... 755

Woodburnv. Winship, 13 Pick.

430, - . . 426

Woodbury v. Sackrider, 3 Abb.

Pr. 403, - - 400

Woodford v. Dorwin, 3 Vt. 83

(31 Am. Dec. 578), - - 691
Woodling V. KQiokerbooker,

31 Minn. 268, - - 466, 467

Woodmansie v. Holcomb, 84

Kan. 85, .... 568
Woodruff V. King, 47 Wis.

361, 407, 418, 607

Woods V. Quarles, 10 Mo. 170, 1139,

1143
V. Wilder, 43 N. Y. 164 (3

Am. Rep. 684), - 583

Woodward v. Clark, 30 Kan.

78, '- - - - 101

V. Cowing, 41 Me. 9,' - 37, 75

V. Francis, 19 Vt. 434, - 639

V. Horst, 10 Iowa, 130, - 5S5

V. Laz^r, 21 Cal. 448, - 674

V. Newhall, 1 Pick. 500, 148,

1094
V. Schatzell, 3 Johns. Ch.

413, - - • - 995

V. Winfrey, 1 Cold. 478, - 639

V. Winship, 13 Pick. 430, 320,

831, 867
Woodworth v. Beiinett, 43 N.

Y. 373, 113, 119, 130, 131, 137, 138
V. Downer, 13 Vt. 533 (37

Am. Dec. 611), - - 694, 701

V. Fuller, 34 111. 109, 1067

V. Spafford, 3 McLean,

168, - - - 454, 535

Woody V. Pickard, 8 Blackf. -

55, - - - - - - 336

Woolans v. Vansickle, 17

Grant's Ch. (Up. Can.) 451, - 986
Wooldridge v. Irving, 33 Fed.

Eep. 676, - - - 338, 1131
N c:

803

151

351
980

1154

858

.Wooldridge v.Wilkins, 3 How.

(Miss.) 860, - - - 385, 390
Worcester Corn Exchange

Co., Ee, 3 DeG. M. & G. 180, 371
Workman v. McKinstry, 31

Up. Can. Q. B. 633, 339, 364

Woiman v. Giddey, 30 Mich.

151, - 560, 1133

Wormser v. Meyer, 54 How.

Pr. 189,
Worth V. Bloss, 80 H. Y. 874,

380,
Worthington v. Macdonnell, 9

Duval (Canada), 337, -

V. White, 43 Mo. 403,

Worthy v. Brower, 93 N. Ca.

314, 181, 923

Wotherspoon v. Wotherspoon,

49 N. Y. Superior Ct. 153,
Wray v. Milestone, 5 M. & W,

21, -
Wrenshall v. Cook, 7 Watts.

464, - 1079, 1080, 1084

Wrexham v. Huddleston, 1

Swanat. 504, n., 531

Wright V. Ames, 3 Keyes, 33J ;

4 Abb. App. Dec. 644, 333, 1041

V. Boynton, 37 N. H. 9, 97, 1086

: V. Brosseau, 78 111. 381, 352,

_ 363, 507, 509

V. Cobleigh, 31 N. H. 339, 849,

856, 861
V. Condidt (Supr. Ct. U. S.

1881), 36 Coop. 563, 753, 1026

— V. Court, 3 C. & P. 333, 881

V. Cumpsly, 41 Pa. St. 102, 865

V. Curtis, 37 111. 514,

V. Davidson, 18 Minn. 449,

V. Delaware & Hudson Ca-
nal Co. 40 Hun, 843,

V. Funck, 94 Pa. St. 26, -

V. Herrick, 135 Mass. 154,

1053, 1053

V. Hooker, 10 N. Y. 51, 195, 441

V. Hunter, 1 East, 30, 70, 457,

845
V. Hunter, 5 Ves. 793, 759

1067
35

43
1165
1033,

Wri.]

TABLE OP CASES.

[You.

Wright V. Jacobs, 61 Mo. 19, 850,

853, 858

V. Miohie, 6 Gratt. 354, - 876

V. Powell, 8 Ala. 560, - 91

V. Russell, 3 W. Bl. 934;

3 Wils. 530, - - - . 650

V. Storrs, 6 Bosw. 600,

609 (aflEd. 3,1 N. Y. 691), - 713
— - V. Swayne, 5 B. Mon. 441, 456,

458

V. Troop, 70 Me.. 346, 629, 630,

854

■- V. Ward, 65 Cal. 525, 907, 931,

933, 1105, 1111, 1113
WycofE V. Purnell, 10 Iowa,

332, - - - 858, 863

Wylie V. Wylie, 4 Grant's Ch.

Up. Can. 378, - 290, 297

Wyman v. Chicago & Alton
R. R. 4 Mo. App. 35, - - 67

V. Stewart, 42 Ala. 163, - 1063,

1064
Wynne v. Millers, 61 Ga.
343 .... - 1071

Yale V. Eames, 1 Met. 486, 685, 690,

698
V. Yale, 13 Conn. 185 (33

Am. Dec. 393), - 184, 186, 1044
Yandes v. Lefavour, 2 Blackf.

371, 381, 681, 700, 704

Yarbrough v. Bush, 69 Ala.

170, .... 137, 1064
Yarnell v. Anderson, 14 Mo.

619, . - - 526, 527

Yates V. Finn, 13 Ch. D. 839, 216,

794, 797

V. Lyon, 61 N. Y. 344, 147

Yeager v. Wallace, 57 Pa. St.

365, - - - 325

Yeakle v. George, 13 Rich. L.

153, - - 1163

Meatman v. Yeatman, 7 Ch. D. -

310, .... 743, 926

Yeoman v. Lasley, "40 Oh. St.

190, - - - 33,. 804

Yocum V. Benson, 45 111. 435, 1071,
1094, 1147
Yohe V. Barnet, 3 Watts & S.

81, ... 816, 858, 860

Yoho V. McGovern, 43 Oh. St.

11, - - - 537

Yonge, Ex parte, 3 Ves. & B.

31, - - - 313, 838, 839, 845
York V. Clemens, 41 Iowa, 95, 301,

302

V. Orton, 65 Wis. 6, - - 503

York Bank's Appeal, 36 Pa. St.

458, - - - 377, 379, 1064
Yorkshire Banking Co. v.

Beatson, 4 C. P. D. 209; s. C.

5 id. 109, - - - 193,443
Youmans v. Heartt, 34 Mich.

397, 491

Young, Ex parte, 2 Ves. &

Bea. 342, ... 70

, Ex parte, 19 Ch. D. 134, 1059

, Re, 3 Bankr. Reg. Ill, - 1131

V. Allen, 53 Cal. 466, - 930

V. Axtell, 2 H. Bl. 242, . 93

V. Brick, 3 N. J. L. 341, 70,, 849

V. Brick, 3 N. J. L. 663, 856

V. Buckett, 51 L. J. Ch.

504, - - . 660, 1001

V. Clute, 12 Nev. 31, 643, 769

V. Davidson, 31 Tex. 153, 1096

V. Frier, 9 N. J. Eq. 465, 824,

'939, iio'g

V. Hunter, 4 Taunt. 582, 80, 446

V. Jones, 3 Hughes, C. C. .

274, - ' - 663, 669, 675

V. Keighly, 15 Ves. 557, - 184,

1111

V. Pearson, 1 Cal. 448, 208,

936

V. Read, 25 Tex. Sup. 113, 362,

1046, 1169

V. Smith, 25 Mo. 341, 109, 1143

V. Tibbitts, 33 Wis. 79, - 630

Younglove v. Liebhart, 13
Neb. 557, - 770, 853, 854, 1075

Zab.]

TABLE OP OASES.

[zue;

Z.

Z. V. X. 2 K. & J. 441, - -■ 581

Zabriskie v. Hacken'saok & N.
Y. R. K. 18 N. J. Eq. 178, 433, 434

Zimmerman v. Erhard, 8 Daly,
311 ; 58 How. Pr. 11 (affd. 83
N. Y. 74), - - - 139, 198

V. Erhard, 83 N. Y. 74, 139, 198

Zimmerman v. Hub'er, 29 Ala.

379, - 303, 766, 767, 770, 963
Zlnk V. Attenburg, 18 How.

Pr. 108, - - - 1094, 1095

Zollar V. Janvrin, 47 N. H. 324, 617,

631, 1155
Zuel V. Bowen, 78 111. 334, - 1073

THE LAW OF PARTNERSHIP.

PART I.

NATURE iro FORMATIOif.

CHAPTER I.

PARTNERS AND PARTNERSHIP DEFINED.

§ 1. Definition. — A partnership is the .contract relation
subsisting between persons who have combined their prop-
erty, labor or skill in an enterprise or business as principals
for the purpose of joint profit.

' A great numbet of definitions have been collected, by. Sir
N. Lindley in his admirable work.^ He refuses to- recom-
mend any, but says that most of them are open to .the criti-
cism that defining a partnership as an agreement to combine
property, work or labor i.s broad enough to include a corpora-
tion. This, however, is not quite correct, for an agreement
never constitutes a corporation, biit rather the action of the
state operating upon the agreement and greeting it into a dis-
tinct body. AU the definitions, including my own, would be
open to criticism unless the word " persons " be interpreted to
include conventional and artificial persons as well as natural,
for a firm may be a member of another firm and a corpora-
tion also; for while a corporation does not generally have
capacity, as we shall see, to become a partner, the reason is
not in the nature of partnership, but in want of power in
the corporation, and power being granted in the charter, it

1 Partnership, vol. 1, p, 1.

Vol. I — 1 1

§ 2. NATURE AND FORMATION.

may enter a partnership with an individual or another cor-
poration. Jessel, M. E., in Pooley v. Driver/ has also criti-
cised Chancellor Kent's definition as not including the case
of an annuitant or an executor, who contributes neither
property, labor or skill, and yet draws a share of the profits;
but these persons are not partners, nor are they now liable
as such unless they interfere in the management, in which
case they do contribute skill or labor. He also criticises the
definition of the New York code as not specifying that
"carrying on business" means an honest business, since it
might include a partnership between highwaymen, and he
prefers Pothier's definition . because containing the word
honest. This, again, is erroneous. A partnership is no less
one because illegal and therefore not enforcible by the
courts.

The definition of the Indian contract act, adopted also by-
Pollock (Digest of the Law of Partnership) as ' ' the relation
which subsists between persons who have agreed to com-
bine," etc., is defective as including'an inchoate partnership
as well as an actual one.

Should it be determined in the future that a partnership
is an entity distinct from the persons composing it, my defi-
nition should not describe it as a relation but as a union or .
body formed by persons who, etc.

The Institutes and Pandects have nowhere given a defini-
tion of partnership, but the modern law upon the subject is
undoubtedly based upon the Eoman societas, which was
either societas univer^orum bonoruvi, br communion of all
property; universorum quce ex qucestu veniunt, or trade
partnership, the usual kind, and which was presumed to be
intended in the absence of contrary proof; negotiationis
aUcujus, for a particular transaction; vectigalis, for the
collection of taxes, or rei unius, the joint ownership of a
single thing.

§ 2. Is a contract relation. — Partnership is a contract
relation and not a status; for example, a decree finding jts

1 5 Ch. D. 453.

PARTNERS AND PARTNERSHIP DEFINED. § 3.

existence or non-existence binds the parties to the case
only, and not third persons.'

An agreement of partnership, like any other contract,
must be founded on a consideration either of mutual prom-
ises or contributions. A mere premise by one person that
another shall share in the profits of his enterprises, where
.the other furnishes no capital or labor, or otherwise pro-
motes the common enterprise, is void.^

So where Reynolds & Lee purported to be a firm, hut Lee was to
pay all the losses and have all the profits, it was said that they were
not partners inter se, but only such to those who trusted them as a
firm.'

A sum is frequently paid for an admittance into a firm or •
for a share in a business by an incoming partner, called the
premium. The questions arising upon this, subject are in-
volved in the right to a return of the premium in cases of
premature dissolution, and belong to the subject of account-
ing. But any contribution, or promise to contribute, or act
which may create a liability to third persons, is sufficient;*
or mutual promises;* or subscriptions to capital." But the
inequality of the contributions goes only to the quantum of
the consideration, and the courts cannot measure it.'

§ 3. Not created by implication of law, — Hence, also, a
partnership is never created between parties by implication
or operation of law, apart from an expressed or implied in-
tention and agreement to constitute the relation. This doc-
trine must not be confused with holding persons liable as
partners by estoppel, or, in a few states, by sharing profits,
for these are not true partnerships, but mere cases of liabil-
ity to certain persons.

Thus, two persons owning bonds and uniting in litigation to es-
tablish their validity, are not made partners by operation of law so

1 McDonald v. Matney, 82 Mo. 358, * The Herkimer, Stewart's Adm. 23.
354 5 Coleman v. Eyre, 45 N. Y. 38;

2 Mitchell V. O'Neale, 4 Nev. 504; Breslin v. Brown, 24 Ohio St. 565;
Heyhoe v. Burge, 9 C. B. 431. Belcher v. Conner, 1 S. Ca. 88.

3 Alabama Fertilizer Co. v, Rey- * Kimmins v. Wilson, 8 W, Va. 584.
nolds & Lee, 79 Ala. 497. '' Dale v. Hamilton, 5 Hare, 393.

3

§ 4. NATURE AND FORMATION.

that a purchase of other bonds by one will inure to the' benefit of
both.'

So, if a man, having a wife living, marries a woman and they
accumulate property, and he dies and the former wife claims the
inheritance, the second wife cannot claim the property as surviv-
ing partner, for no partnership was ever contemplated between
them.'

So where sons worked for a father without salary or wages, un-
der a sort of patriai'chal system, and their business gr6w to large
proportions, but there was no agreement between them, nor any-
thing but a mere expectancy of succession, the law cannot create a
partnership by implication without the assent of all.'

So false declarations and acts to get another credit in order to
share in the property so obtained does not create a partnership.
As where a father, in order that his son might get goods on credit
for their joint benefit, held out to the world that the son would
receive his property, though he would be liable, it is not as part-
ner.*

§ 4. Defective corporations. — The most important ap-
plication of this principle occurs where persons have at-
tempted to form a corporation, but by failure to comply
with the statutes or otherwise have never perfected a corpo-
rate organization and thus entitled themselves to the im-
munities of one, but have nevertheless proceeded to trans-
act business and incur debts, or have continued to act as a
corporation after their charter has expired. The weight of
authority sustains the doctrine that the corporators are not
liable as partners when their acts were honafide on the sup-
position that they were incorporated and were assuming
only the limited liability of stockholders and did not intend
to be liable as partners. The authority against this is, how-
ever, very formidable, and is based on general public policy
rather than on any principle of partnership law.

The authorities holding that such persons are not liable as part-
ners are: Fay v. Noble, 7 Cush. 188, where the organization was

1 Wilson V. Cobb, 28 N. J. Eq. 177. s Phillips v. Phillips, 49 HL 437.

2 Estate of Winters, 1 Myrick (Cal.) < Farr v, Wheeler, 80 N. H. 569.
Prob. Kep. 131.

4

PARTNERS AND PARTNERSHIP DEFINED. § 4.

defective. Trowbridge v. Scudder, ll Gush. 83, where the contract
sued on was ultra vires. First Nat'l Bank v. Almy, 117 Mass. 476,
where business was transacted before the whole stock was paid in,
contrary to the statute; and s. p. Bank v. Hall, 35 Ohio St. 158.
Ward V. Brigham, 127 Mass. 24, where officers were elected who
transacted business before the organization was completed. Cen-
tral City Sav. Bk. v. Walter, 66 N. Y. 424 (afP. 5 Hun, 34), where,
after expiration of the charter, but in ignorance thereof, the busi-
ness was continued. Contra, Nat'l Bk. of Watertown v. Landon,
45 N. Y. 410, where they continued business, knowing the charter
had expired. So in New York Iron Mine v. Negaunee, 39 Mich.
644, where no meeting of stockholders or directors had been had
for several years, and two persons who made the notes sued on
owned all the stock; and Merchants' and Manuf Bank v. Stone,
38 Mich. 779, where a bank which had discounted paper of the
supposed corporation alleged that it was improperly organized, had
conducted an unauthorized business, and that the corporate name
was indeterminate. In State v. How, 1 Mich. 512, members of a
bank organized under an unconstitutional law were held not liable
for its bills because they are nuda pacta and unlawful. This, then,
is not an authority on our doctrine. Rowland v. Meader Furniture
Co. 38 Ohio St. 269, held that judgment of ouster does not make
members, liable as partners on the prior contracts; and in Bank v.
Hall, 35 Ohio St. 158, 166, it was said that non-compliance with
the statute in organizing, or exceeding the charter powers, does
create the liability as partners; and Medill v. Collier, 16 Ohio St.
599-, stockholders who did not participate in acts not merely ultra
vires but positively forbidden by statute are not liable as partniers.
McClinch v. Sturgis, 72 Me. 288, on the. ground that the omitted
acts are directory, and if the state raises no objection no one else
can. Stout v. Zulick (N. J.), 7 Atl. Eep. 362; and so, also,- Tarbell
V. Page, 24 111. 46, that the state alone can complain of a failure to
' file the certificate of incorporation with the secretary of state, and
an einployee cannot sue the stockholders for his salary. In Hum-
phreys V. Mooney, 5 Colorado, 282, the defect was failure to file the
certificate with the secretary of state; and so in Harrod v. Hamer,
32 Wis. 162, on the ground that this was not a condition precedent.
Gartside Coal Go. v. Maxwell, 22 Fed. Rep. 197, where the defe6t is
not stated, but it is held that if the acts are bona fide and without
the knowledge of the defect in organization, the parties having

§ 5, NATURE AND FORMATION.

done business for several years' supposing they were incorporated,
are not liable as partners to one who dealt with them as a corpora-
tion. In Planters' and Miners' Bank v. Padgett, 69 Ga. 159, the
corporation was created by a court having no authority to do so,
but a creditor who had contracted with it as such, both parties be-
lieving the corporation to exist, cannot sue the members as part-
ners. Stafford Bank, t). Palmer, 47 Conn. 443, that stockholders
who did not participate in a defective organization cannot be held
as partners; and see dictum in Blanchard v. Kaull, 44 Cal. 440. A
judgment against the corporation estops the creditor from claim-
ing the stockholders to be partners. Pochelu v. Kemper, 14 La.
An. 308; Gres-swell v. Oberly, 17 111. App. 281.

§ 6. Contrary cases. — On the other hand^^the following author-
ities distinctly hold that the associates are liable as partners: Jes-
sup V. Carnegi, 12 J. & Sp. 260'; 80 N. Y. 441, that neither the
intention of the parties nor the belief of others that they are deal-
ing with a corporation makes any difference ; they are liable as
partners if they undertake to act as a corporation without legal or-
ganization. In re Mendenhall, 9 Bankr. Reg. 497, and National
Bank of Watertown v. Landon, 45 N. T. 410 (66 Barb. 189), where
stockholders continued business after the expiration of the charter,
and each was "held liable in solido for the acts of their managing
agent. Bigeiow v. Gregory, 73 111. 197, on the ground that publi-
cation and filing the certificate was a condition precedent under the
Wisconsin statute. Coleman v. Coleman, 78 Ind. 344, a similar
omission was held to make not only directors, but also subscribers,
Ijable as partners. Kaiser v. Lawrence Sav. Bank, 56 Iowa, 104,
where the defect was the same. Abbott v. Omaha Smelting Co. 4
Neb. 416, the same. Also the following cases: Garnett v. Rich-
ardson, 35 Ark. 144, where the certificate was not filed, and the
court say the parties are liable as partners; yet from the statement
of facts it would seem that the goods sued were bought in the part-
nership name. Malrtin v. Fewell, 79 Mo. 401, announces the doc-
trine broadly, and says it results from Richardson v. Pitts, 71 Mo.
128, but the defendants seem to have been aware that the business
was being done before the organization was completed, the court
saying that, if not liable as partners, they might run on indefinitely
with the privileges of a corporation. But in Hurt v. Salisbury, 55
Mo. 310, the doctrine was squarely announced. In Field «j. Cooks,
16 La. An. 153, the certificate of the district judge was omitted;

6

PARTNERS AND PARTNERSHIP DEFINED. § 6.

ield liable as partners. So in Chaffe v. Ludeling, 27 La. An, 607,
there was no pretense of any charter, the parties having bought
out a railroad corporation and then contracted in its corporate ^
name. In Vredenburg v. Behan, 33 La. An. 627, a rifle club was
organized under a law for incorporating literary and scientific as-
sociations, and the ofiBcers were held liable in tort for injury done
by a bear kept on the premises. See, also, the dissenting opinion
of Morton, J., in Merchants' & Manufacturers' Bank v. Stone, 88
Mich. 779, as to corporation for unauthorized purpose. In Harris v.
McGregor, 29 Cal. 124, the defendants were sued personally for in-
juries from their diversion of a water-course, their certificate of cor-
poration being defective; but this is inconsistent with the dictum
in the later case cited in § 5. In Shorb v. Beaudry, 56 Cal. 446;
Fuller V. Rowe, 57 N. Y. 193 (rev. s. o. 59 Barb. 344); Cambridge
Water Works v. Somerville Dyeing, etc. Co. 14 Gray, 193; Hol-
brook V. St. Paul F. & M. Ins. Co. 25 Minn. 229; and London
Assur. Co. V. Drennen, 116 U. S. 461, the point was raised but not
decided. In Flagg v. Stowe, 85 111. 164, persons agreeing to be-
come incorporated and to furnish respectively a factory, machinery
and money, not having, by failure to comply with the statute, be-
come incorporated, are so far partners inter se, that an accounting
and sharing of losses can be had, including a reasonable rent for
the property? And see § 6.

§ 6. intentional Tiolation of charter powers. — If the

parties, even though organized as a corporation, knov^ingly
conduct business wholly outside of the charter powers, or
make use of the statutory organization to act in fraud of
the laws of the state for the sake of profit, their relation is
that of partners.

Thus, where a statute permits the incorporation of savings so-
cieties upon a mutual plan only, the depositors being members and
sharing the earnings, and the corporators conduct the business as
a trading and not mutual concern, doing a general banking busi-
ness for their own profit, here, there being not even an attempted
or imperfect execution of their powers, but a total diversion of it,
they are liable as partners to depositors.'

Hill V. Beach, 12 K. J. Eq. 31, holds, wliere persons go to an-
other state to be incorporated for the purpose of doing business in

1 Eidenour v. Mayo, 40 Oh. St. 9.

§ 8. NATUEE AND FORMATION.

the state where they Jive, presumably to escape liability, they com-
mit a fraud on the laws of the latter state and will be treated as
partners. Contra, that such act is not a fraud, Bank v. Hall, 35
Oh. St. 158.

The parties under an intended but fatally defective incorporation
proceedings have the rights of partners in the property of the con-
cern; ' but not if not so intended.''

§ 7. Participants in the illegal acts. — But even where
innocent stockholders of an imperfect corporate organization
are not held personally liable, it may be that officers or par-
ticipating stockholders who contract with knowledge of the
want of the omission of statutory steps, or engage in an un-
authorized business, would be liable.^

But there is no liability to a jJarticipant, for example, to the
solicitor who helped to organize knowing there were more than the
statutory number of members; * nor on contracts before the defend-
ant became a member. Thus, where one Sweet, acting as president
of a supposed corporation, employed Fuller as superintendent, at a
salary,. and afterwards Rowe, supposing the company was a legal
corporation, joined it and was elected president, and notified Ful-
ler to report to him, he is not liable with Sweet and others for the
salary.'

§ 8. firm becoming incorporated. — Where a firm

actually engaged in business becomes incorporated, but con-
tinues to do all its business in the partnership name, they
are liable as partners on contracts so made. * So where an

1 Conner v. Abbott, 35 Ark. 365; Coal Co. v. Maxwell, 23 Fed. Rep.
Whipple V. Parker, 29 Mich. 369 ; 197. That the liability is in tort for
and see Holbrook v. St. Paul F. & M. acting as agents without authority,
Ins. Co. 25 Minn. 239, and Shorbv. and cannot be in contract, since they
Beaudry, 56 Cal. 446; Flagg v. did not promise as partners, Trow-
Stowe, 85 111. 164. bridge v. Scudder, 11 Cush. 83. See,

2 London Assur. Co. v. Drennen, also; Sullivan v. Sullivan, 30 S. Ca.
116 U. S. 461. 79.

sMedill V. CoUier, 16 Oh. St. 599; iRe South Wales AW. Steamsh.

Bank v. Hall, 35 Oh. St. 158, 166 ; Staf- Co. 2 Ch. D. 763.

ford Bank v. Palmer, 47 Conn. 443, 5 Fuller v. Rowe, 57 N. Y. 33 (rev.

448-9 ; National Bank of Watertown 59 Barb. 344).

V. Landon, 45 N. Y. 410. See, also, ^Bank v. Smith, 26 W. Va. 541, 553,

Blanchard v. KauU, 44 Cal. 440, the court saying the incoi'poration

and language of court in Gartside was a transparent fraud. See, also,

8

PARTNERS AND PARTNERSHIP DEFINED. § 10.

existing partnership attempts to become incorporated, but
the proceedings are irregular, they are still a partnership.
So on contracts made before they attempt to become a cor-
poration.^ So where stockholders represent themselves as
personally liable for debts; ^ and no doubt notice of dissolu-
tion of the partnership is as necessary in the case of con-
version of a firm into a corpoi-ation as in any other case,
for the change of name might be notice only on written
contracts; and it would be wise to have the corporate name
distinctly different from the partnership name, lest the part-
ners be held to a personal liability in solido, as partners by
a holding out.

A corporation formed out of a firm without difference of
membership is not liable for the debts of the partnership.'

KINDS OP -PARTNERS AND PARTjJfERSHIPS.

Leaving out of view the classes of partners in limited
partnerships, which are the general and special parjtners,
members of ordinary partnerships may be divided generally ,
into (1) Active and ostensible; (2) Secret or dormant; and
(8) Nominal.

§ 9. Active and ostensible partners. — An ostensible part-
ner is one who is known and declared to be such whether
his name be in the firm style or not; for the firm name may
be a purely fanciful one. He has also occasionally been
called a public partner.

An active partner is generally the same as an ostensible
one, but not necessarily so; for a member whose connection
with the firm is intentionally concealed may be neverthe-
less an active partner, though not an ostensible one.

§ 10. Secret or dormant partner. — These terms are gen-
erally used as synonymous. A dormant partner must be a
secret one or he ceases to be dormant, but many dormant

Garnett v. Richardson, 35 Ark. 144 ; 2 Reid v. Eatanton Mfg. Co. 40 Ga.
Witmer v. Schlatter, 2 Rawle, 359. 98.

iWhipplev. Parker, 29 Mich. 369; SMcLellan v. Detroit File Works,
Haslett V. Wotherspoon, 2 Rich. 56 Mich. 579.
(S. Ca.) Eq. 895.

9

§ 12. NATUEE AND FORMATION.

partners ai-e not only secret, but by the partnership articles
are excluded from participating in the management of the
business; while others do not participate, and yet iare not by
contract excluded from exercising the usual powers of a
partner and from terminating their condition of dormancy
at will; and yet other secret partners may be active partici-
pants in the conduct of the concern. Partnership nomenclat-
ure does not furnish any terms to distinguish between these
classes of dormant or secret partners. Even the word silent,
which is apt to be confined to those who are both secret and
inactive, has no such generally recognized liniitation- of
meaning.

§ 11. Nominal partner. — A nominal partner literally
would be one whose name is openly used as one of the part-
ners whether he be an active partner or not; but the term is
always understood to mean a person who is not a partner at
all, but allows the use of his name in the firm, generally to
give it additional credit or to attract custom, thus incurring
all the liabilities while deriving nojie of the benefits of the
association. He is also called a partner by holding out or by
estoppel, for he is a partner only to those who trust the firm
wholly or iu' part on the faith of his appearance as a mem-
ber of it. This subject will be treated more fully under
Holding Out.

§ 12. Kinds of partnerships. — Partnerships may be divided
into the ordinary partnership, the limited partnership and
the joint stock company.

The limited partnership is one formed under statutes per-
mitting a limited liability on the part of some of the mem-
bers, which the common law utterly discountenances, and
which have, therefore, been treated in this country with
some unnecessary degree of strictness by the courts. Such
members hazard only the amount of capital they have em-
barked and incur no further liability. They have formed
the subject of a separate treatise by the author.^

1 The Law of Limited Partnership, by Clement Bates, Boston, 1886, little.
Brown & Co.

10

PARTNERS AND PARTNERSHIP DEFINED. § 13.

The ordinary partnership includes the joint stock com-
pany as a peculiar class, owiiig to the nature of the partners'
shares and the mode of government of the association.

Ordinary ' partnerships may be divided into particular,
general and universal. These divisions are of no great im-
portance and may be multiplied according to the fancy of
the reader. Another is made between trading and non-
trading partnerships, or those in which a _priniary element
is buying and selling, and those in which it is not, the latter
class including such partnerships as those for farming, min-
ing and practicing in the professions. This division is of
very great importance in determining the implied powers
of individual partners, and will be treated of with that sub-
ject.

A PARTICULAR PARTNERSHIP is one where the parties have
united to share the benefit of a single individual transaction
^or enterprise.

A GENERAL PARTNERSHIP is One where they have united
for the general purposes of some kind of business. All part-
nerships may be said to be more or less limited,' and vice
versa, those restricted to one venture may have as to it the
incidents of a general partnership; ^ but this class represents
the great majority of associations, whether for the prosecu-
tion of commercial, mechanical, manufacturing or profes-
sional avocations, and whether for a fixed period of time or
at will.

§ 13. Universal partnership. — A universal partnership is
one in which all property ov/ned by the parties is contrib-
uted, and all profits, however made, are for joint benefit.
Some of- the cases I have placed under this head can hardly
be considered partnerships at all, but are rather commu-
nistic arrangements or tenancies in common.

The civil law recognized two kinds of universal partnership, the
societas universorum bonorum, comprising a union of all property,
real or personal, present or to be acquired, even by gift or inhent-

1 Livingston v. Roosevelt, 4 Johns. 2 Horsey v. Heath, 5 Oh. 353,
351, 377 (4 Am. Deu. 373) ; Walden v. 356.
Shei-bmrne, 15 id! 409, 433.

11

§ 13. NATURE AND FORMATION.

ance; and the societas universorum quce ex qucestu veniunt, differing
from the former in that real estate and subsequent acquisitions, by
gift or descent, were not ■ included, nor were past debts a charge.
And in Louisiana the universal- partnerships are recognized by the
Code, §§ 2800-2805; but if part of the property of the partners is
not included it is not a universal partnership.'

In the other American states partnerships have occasioQally oc-
curred approximating closely to a universal partnership. Such was
Lyman v. Lyman, 2 Paine, C. C. 11, where two brothers for some
thirty years included all their property and engaged in nearly every
kind of enterprise, and it was held (p. 28) that even legacies to
each partner, and to the wife of one, were included. Gaselys v.
Separatists' Soc. 13 Oh! St. 144, if a partnership at all was a
universal one, there was a renouncing of separate interests and a
perpetual devotion of all property to a religious society, the mem-
bers participating in the use of the fund so long only as they con-
tinued members."

In Gray v. Palmer, 9 Cal. 616, one of two persons contributed
to the joint fund all he possessed, and the other all he might be-
come possessed of for two years for the purpose of accumulation,
debts to be paid from the joint fund. The court said that there
was nothing impracticable or against morality or public policy in
a universal partnership.

Rice V. Barnard, 20 Vt. 479 (50 Am. Dec. 54), was a partnership
so universal as to include everything except furniture and wearing
apparel. The court said they would regard it rather as a tenancy
in common than a partnership, and that partnership creditors could
not have a priority over the separate creditors of each partner on
distribution.

Quine v. Quine, 9 Sm. & Mar. 155, was a planting partnership
between a person and his sister-in-law, which included all prop-
erty, real or personal, bought by either, whether in their individual
or joint names, holding, however^ that a right of survivorship can-
'not be proved by mere conversations.'

iMun-ell V. Murrell, 33 La. An. Wilhite, 3 Dana, 170. Of the Har-

1238. mony Society. Baker v. Nachtrieb,

2 See further as to this society Goe- 19 How. 136 ; Schriber v. Rapp, 5

sele V. Bimeler, 14 How. 589, aff'g 5 Watts, 351.

McLean, 333. So of the Shakers. 3 s. p. Houston v. Stanton, 11 Ala.

Waite V. Merrill, 4 Me. 103; Gass v. 413.

12

PAETNERS AND PARTNERSHIP DEFINED. § 14,

But the court will not hold that a universal partnership is de-
signed unless the intention is very clearly expressed.'

There are also certain general partnerships differing from the
foregoing in that all property is not contributed, but separate
ownership remains, except of, the capital contributed, but the
scope of the partnership is to trade in anything and everything in
which the parties can make money."

§ 14. Mining partnerships also, in many respects, form a
class by themselves, being a cross between tenancies in com-
mon and partnerships proper. Their peculiarities, of which
the chief one is the absence of the delectus personarum,
and hence, that death or transfer of a share does not dis-
solve them, will be incidentally noticed as we progress.

1 Gray v. Palmer, 9 Cal. 616 ; Mitch- Turnpike Co. v. Guliok, 16 N. J. L.
ellu O'Neale, 4Nev. 504, 514.- 161; Goldsmith v. Sachs, 17 Fed.

2 Such were Catlin v. Gilders, 3 Rep. 726 ; 8 Sawy. 110.
Ala. 636; Princeton & Kingston

13

CHAPTEE IL

TESTS OF A PARTNERSHIP.

§ 15. Inter se and as. to third persons. — The very great
importance of this, the most perplexed and difficult pa'rt of
pattnership law, the ascertainment of what constitutes a
partnership, and in connection therewith the examination
of the influence which the English case of Cox v. Hickman
is having upon our jurisprudence, renders necessary a some-
what extended, summary of the modern decisions.

As the law existed up to less than thirty years ago, it was
necessary to make a difference between a true partnership
and partnerships as to third persons. Persons having such
interfests in a partnership as to be entitled to a share in the
profits were, with certain exceptions, as where a share of
profits was the measure of a compensation, liable to cred-
itors as if actual partners, on the assumption that they re-
ceived part of the fund upon which creditors depended for
payment, and this whether such person intended to be a
partner or not or knew that he incurred a liability.

The injustice of this doctrine of partnership as to third persons
has been more or less deplored by text-writers. Moreover the
illogical and untruthful foundation upon which the-doctrine rests
is now pretty well understood. Persons held liable as partners to
third persons did not take part of the fund upon which creditors
relied any more than did a salaried agent, and in fact less so; for
when a partnership was unable to pay its debts, it was because there
were no profits, and in that case such person took nothing; whereas,
had his compensation been definite, the fund would have been dimin-
ished.

But the doctrine of partnership as to third persons is now ex-
ploded in England, and by all the later American authorities, and
nothing is left of it except in cases of partnership by estoppel, that is
by holding out. It is still true that in many American states,
where the only decisions are their earlier ones, the law is not yet

14

TESTS OF A PAETNERSHIP. § 16,

announced to have reached tbe modern point; for in all the Araeri-,
can states the early decisions, while not going to the length of the
older English law, were, of course, deep in its shadow, merely in-
creasing the exceptions and somewhat profiting by the light of
growing modern criticism. This subject will appear more defi-
nitely as we proceed. It is true that the later decisions, English
and American, do not generally profess trt overrule the former ones;
nevertheless the starting point or basis of reasoning is quite differ-
ent, and is no longer participation in profits, independent of inten-
tion^ but is now to ascertain the intention of the parties, to
determine which a sharing of profits is but a factor in the evidence
and not conclusive.

It is to be remembered that persons who are partners inter se are
always liable aS. partners to third persons, and that persons who
are found not to be partners a,s to third persons cannot be partners
inter se; hence, in determining what is a true partnership, author-
ities as to what does not constitute persons partners inter se are
applicable.

§ 16. Earlier English law. — The rule so long in vogue, that
a sharing of profits made the sharer liable as a partner to third
, persons, was first announced in Grace v. Smith, 2 W. Bl. 998 (1775).
There Smith & Robinson dissolved partnership, duly advertising
the fact, on terms by which Robinson was to take the business and
assume the debts and pay Smith back his original capital and
£1,000 for profits, and Smith was to let £i,000 remain in the busi-
ness for seven years at five per cent. In an action by a creditor,
charging Smith as a secret partner, De Grey, J., said: " Every man
who has a share of the profits of a trade ought also to bear his slim-e
of the loss. If any one takes part of the profit, he takes a part of
the fund which the creditor relies on for payment." ..." I
think the true criterion is to inquire whether Smith agreed to.share
the profits of the trade with Robinson, or whether he only relie.l on
those profits as a fund for payment." The jury found the loan was
on general personal security only, found for Smith, and a new trial
was refused. Hence the, case was rightly decided, but these state-
ments of law have had a wide infiuence.

In an earlier similar case, Bloxham v. Pell, cited in 2 W. Bl. 999,
Lord Mansfield had, on facts similar to those in Grace v. Smith,
ruled that the arrangetnent was a device to obtaip more than legal

15 ■

§ IC. NATURE AND FORMATION.

interest, and hence was either a crime or a partnership, and sus-
tained it as being the latter.'

Waugh V. Carver, 2 H. Bl. 235 (1793); 1 Smith's Lead. Cas. 968.
Carver & Son, ship agents at one place, and Giesler, a ship agent at
another place, agreed to throw business into each other's hands and
divide commissions and profits, neither to be affected by the other's
losses or liable for his acts. Eyre, L. C. J., said that it was plain
the parties were not and never meant to be partners, but as they
took part of the fund oh which creditors rely, they were liable as
parties under Grace v. Smith.

This case was followed in 1821 by Cheap v. Cramond, 4 B. & Aid.
663, where merchants divided profits on business recommended or
influenced by one to the other, and were in consequence held to be
partners as to third persons.''

But a share of gross returns in lieu of compensation was early
held not to constitute a liability as partners.^ It had previously
been decided that sharing gross receipts did not create a partner-
ship inter se*

Then a distinction was made between an agreement to receive aa
compensation a part of the profits and an agreement to receive a
sum equal to or in proportion to a part of the profits, the latter not
constituting a partnership."

iThis same kind of reasoning was * Wilkinson v. Frasier, 4 Esp. 183,

subsequently adopted in Gilpin v. of seamen sharing the oil of a whal-

Enderbey, 5 B. & Aid. 954, in which ing voyage as wages,
the question was of a partnership m- * Ex parte Hamper, 17 Ves. 403,

terse; Fere,day v. Hordern, Jac. 144; A\%;Ex parte Langdale, 18 id. 300;

and see Jestons v. Brooke, Cowp. 793i Ex parte Watson, 19 id. 459, 461 ; Ex

2 And by Heyhoe v. Burge, 9 G. B. parte Rowlandson, 1 Rose, 89 ; Brock-
431. See, also, Hesketh v. Blanchard, way v. Burnap, 16 Barb. 309; Pierson f
4 East, 144 ; Smith v. Watson, 3 B. & v. SteinAyer, 4 Rich. L. 809 ; Loomis/
C. 401, of a broker paid by a share of v. Marsh.all, 12 Conn._ 69; Turnerj^i/'
profits in lieii of commission; Barry Bissell, 14 Pick. 193; Miller v. BaiK-

V. Nesham, 8 C. B. 641, a seller of a let, 15 S. & R. 187; Lord'r. Proctor,

business guarantying certain profits 7 Phila. 630; Irwin v. Bid well, 73 Pa.

to the buyer, but to have all above St. 344. The fullest examination of

thathimself ; JicparfeOellar, 1 Rose, the old cases will be found in East-

297. For the modern law, see § 60. man v. Clark, 53 N. H. 276. A very

3 Dry V. Boswell, 1 Camp. 339, of a neat resvmi of their effect is given
boatman receiving half the boat's by Sir N. Lindley, Partnership, voL
gross earnings in lieu of wages. 1, p. 34 et seq.

16

TESTS OF A PARTNERSHIP. § 17.

§17. Intentioa. — To determine whether the relation be-
tween persons constitutes a partnership their intention in
forming it governs. When the facts are given, this question
is one of law. The fact that the contract may be denominated
by the parties a partnership, or that they declare in it that
they do not design becoming partners, is controlled by the |
nature of the contract. If it constitutes a partnership it is
one; and if not, not, independent of the language of the
parties.

The declarations of the parties themselves upon the sub-
ject, if not inconsistent with the other terms of the contract,
will control. If they have agreed not to be partners they
are not, whatever may be their responsibilities otherwise.*

The word partnership is not necessary to be used to con-
stitute a partnership, nor are the words manager, servant,
agent, superintendent, and the like, necessary to show that
an employment was intended.^

I The intention of the parties will be determined from the
•effect of.the whole contract, regardless of special expressions.
And if the actual relation which -the parties have assumed
towards each other, and the rights and obligations which
have been created by them, are those of partners, the act-
ual intention of the parties or their declared purpose can-
not suspend the consequences.' And so if the parties have

1 Pollard V. Stanton, 7 Ala. 761 ; see Couch v. Woodruff, 63 Ala. 466;
Marks v. Stein, 11 La. Ann. 509 ; Tayloe v. Bush, 75 id. 433.

Kerrtt Potter, 6 Gill, 404; Redding- spooley v. Driver, 5 Ch. D. 458;

ton V. Lanahan, 59 Md. 439; Gill u. Ex parte Delhasse, 7 id. 511; Moore

Kuhn, 6 S. & R. 333. v. Davis, 11 id. 261 ; Cooley v. Broad,

2 See, for example, Van Kuren v. 29 La. Ann. 345; Mulhall v. Cheat-
Trenton Locomotive & Mach. Mfg. ham, 1 Mo. App. 476; Beecher v.
Co. 13 N. J. Eq. 303; Bloomfield v. Bush, 45 Mich. 188, 194 (40 Am. Rep.
Buchanan, 13 Oregon, 108; Ryder v. 465); Manhattan Brass & Mfg. Co. v.
Wilcox, 103 Mass. 34, 37; Greenham Sears, 45 N. Y., 797 (6 Am. Rep.
V. Gray, 4 Irish Com. L. 501. The 177); rev. s. c. 1 Sweeny, 426; Coth-
contract where third persons' claims ran v. Marmaduke, 60 Tex. 370, 373 ;
are not in question will be liberally Stevens v. Gainesville Nat'l Bank, 63
construed in reference to the actual Tex. 499, 503 ; Duryea v. Whitcomb,
understanding of the parties and the '31 Vt. 395; Rosenfleld v. Haight, 53
purposes they had in view. Hitch- Wis. 260.

ings V. Ellis, 13 Gray, 449, 453 ; and
Vol. 1 — 2 17

§ 18. NATURE AND FORMATION.

used the word partnership in their contract and called them-
selves partners, this will not make them such if the contract
is not consistent with such relation.*

§ 18. Mutual agency as a test of intention. — It is impos-
sible to lay down any absolute rule to s'^certain the presence
of an intention to create a partnership. The earliest of the
modern English cases, Cox v. Hickman, suggests agency as
a test; that is, if a person is connected with a firm as a
principal, as one trading on his own behalf as well as in be-
half of the others, he is a partner. And ,the same idea may
be otherwise expressed; thus, if the party is a constituent
part of the conventional being created by the parties in
forming a partnership, he is a partner.^

In later cases this use of the word agency has been criticised;
thus, Jessel, M. R., in Pooley v. Driver,' regrets it as not helping
in the slightest degree, because only stating in other words that he
must be a partner; and Baron Cleasbt, in Holme v. Hammond/
says: " My view is that agency is in such cases deduced from part-
nership rather than partnership from agency." But the critics offer
nothing as satisfactory in its place.

As consequences rather thali as tests, if he is a partner, he has a
lien to compel the application of the assets to the payment of the
debts, and the debts must be paid before a court will permit him to
share; and he obtains his share of the profits, not as a personal
creditor of his associate, but out of the assets prior to the separate
creditors of the copartners, and independent of the iatter's con-

' Oliver v. Gray, 4 Ark. 435 ; Dwi- gested by Cleasbt, B. , Holme v.

nel V. Stone, 30 Me. 384; Sailors v. Hammond, L. R. 7 Ex. 218, 238:— if

Nixon-Jones Printing Co. 20 111. A. puts in the capital, and B. and C.

App. 509 ; McDonald v. Matney, 83 are to carry on the business in their

Mo., 358, 366; Livingston v. Lynch, own names, A. not to appear at all,

4 Johns. Ch. 573, 593. or interfere, or buy or sell, or sign

2 Agency was also adopted as the negotiable paper, here there is no
test in Kilshaw v. Jukes, 3 Best & Sm. agency, although a person becoming
847 ; BuUen v. Sharp, L. R. 1 C. P. 86 ; aware of the dormant partner, but
In re English and Irish Church, etc. not of the limitation upon his au-
Assur. Soc. 1 Hen. & M. 85. Agency thority, could bind the firm by deal-
is not a perfect test, for parties may ing with him.
be partners inter se because they so '5 Ch. Div. 453.
intend, although one is deprived of < L, R. 7 Ehc. 318.
all authority, as in the case sug-

18

TESTS OF A PARTNERSHIP. § 19,

sent, bankruptcy, insolvency, death or assignment; and conversely,
if he can share with the creditors, yet the existence of such a lien
would show an intention to be partners, and the existence of a
power of disposition arising from the relation of the parties would
show the same intention.

§ 19. Modern law; English. — It now becomes necessary
to examine seriatim the principal modern English decisions
repudiating the distinction between partnerships inter se,
and those which are such only as to third persons in conse-
quence of a sharing of profits, and then to see the influence
these decisions have had upon the American law.

In Cox V. Hickman," a firm of B. Smith & Son, carrying on busi-
ness at the Stanton Iron Works, becoming embarrassed surren-
dered the control of their property to trustees appointed by their
creditors, who numbered over one hundred, under a deed by which
trustees for creditors were to carry on the business under the name
of The Stanton Iron Co., with power to do whatever was necessary
for that purpose, and to divide the net income, which was always
to be deemed the property of the Smiths, among the creditors, and
when the debts were all paid then to hold for the Smiths. In fact,
of the trustees, one refused to act and the other shortly resigned,
and the business was conducted by three others of the creditors;
but this forms no part pf the opinions rendered, though it might
have done so. Hickman supplied goods to the Stanton Iron Co.
and drew bills on them, which were accepted in the name of the
company by one of the three managers, and action was brought
upon one of the bills against the defendants, who were among the
creditors, as partners. The question then was, were the creditors lia-
ble as partners ? The judges in the exchequer chamber were equally
divided. Of the lords, composed of the Chancellor (Campbell),
Cranworth and Wensley dale, who rendered opinions. Brougham and
Chelmsford concurring, all agreed that the defendants were not lia-
ble, for they were not partners inter se, and never intended to be
liable as partners. Lord Crakworth, who delivered the principal
opinion, says: " The liability of one partner for the acts of his co-
partner is, in truth, the liability of a principal for the acts of his
agent." . . . "A right to participate in profits affords cogent,
often conclusive, evidence that the trade in which the profits have

18H. ofL. Cas. 368 (1860).

19

§ 20. NATURE AND FORMATION.

been made was carried on in part for or on behalf of the person
setting up such a claim. But the real ground of liability is that
the trade has been carried on bj' persons acting on his behalf;
. . . that he stood in the relation of principal towards the per-
sons acting ostensibly as the traders." " The debtor is still the
person solely interested in the profits, save only that he has mort-
gaged them to the creditors. He receives the benefit of the profits
as they accrue, though he has precluded himself from applying
them to any other purpose than the discharge of his debts. The
trade is not carried on by or on account of the creditors, though
their consent is necessary in such a case, for without it all the prop-
erty might be seized by them in execution; , . . the debtor or
the trustees are the persons by or on behalf of whom it is carried
on." He further said that the provision that the creditors might
order a discontinuance of the business is only to qualify their con-
sent to it; that the reservation of such a power in a third person
would not make the creditors partners if they were not so already,
and it makes no difference that the power was reserved to them-
selves. Lord Wensletdaxe also said: " The law as to partnership
is undoubtedly a branch of the law as to principal and agent."
"Hence it becomes a test of the liability of one for the contract of
another, that he is to receive the whole or a part of the profits aris-
ing from the contract by virtue of the agreement made at the time
of the employment." " I think it is impossible to say that the
agreement to receive this debt so secured, partly out of the existing
assets, partly out of the trade, is such a participation in profits as
to constitute the relation of principal and agent between the cred-
itors and trustees." It is to be noticed that the lords expressed their
intention of not overruling the previous cases.'

§ 20. independent contractors dividing profits of a

job.— In Kilshaw v. Jukes, 3 Best & Smith, 847 (Q. B. 1863), Kil-
shaw had sold timber to the defendants. Till & Wynn, and now
claims that Jukes was' their dormant partner and liable for the debt.
The three defendants had jointly agreed to purchase apiece of land
and to complete buildings upon it, the vendors agreeing to advance
money for the buildings, and the conveyance to be to the three on

Is. c. as Wheatcroft v. Hickman, Scac, which affirmed the Common
9 C. B. N. S. 47; reversing Hickman Heas in 18 0. B. 617.
V. Cox, 3 C. B. N, S. 523, in the Cam.

80

TESTS OF A PARTNERSHIP. § 21.

completion of the buildings, and all were liable to the vendors for
the purchase money. The timber bought of plaintiff was for the
erection of the buildings. Inter se the agreement was that Till &
Wynn should erect the buildings themselves and Jukes should
have an interest only to the extent of an old debt owed him by
them and for such iron as he should supply for the buildings; any
surplus was to be Till & Wynn's, and if the proceeds should be in-
su£B.cient to repay Jukes he was to be a loser, and he gave no
authority to Till & Wj'nn to order timber on his account. Black-
BUKsr, J., analyzed the question thus: All three are of course liable
to the vendor to pay for the land and to procure the erection of
buildings, but this is quite consistent with Jukes being no party
to the contracts for material or labor for the buildings, as all three
might have had a. contractor erect the buildings for their benefit
without being liable for the material or labor obtained by the con-
tractor; and if Jukes bona fide and not as a clerk made a simiilar
arrangement with Till & Wynn, by which he put them in the
position of a contractor, there is nothing to prevent him; and the
only question is whether the interest he reserved to himself made
him liable as a partner; and held, that under Cox v. Hickman the
interest on the profits did not make Jukes a partner. Wightman,
J., dissenting on the ground that Cox v. Hickman was upon cir-
cumstances so peculiar as not to be of general application.

§ 21. loan on profits as interest; annuity creditor. —

In Bullen v. Sharp, L. E. 1 C. P. 86 (Cam. Scac. 1865), the defend-
ant's son became an underwriter, and in consideration of Sharp,
the elder, guarantying the son to the extent of £5,000 in such busi-
ness, the son promised to pay the father an annuity of £500 per
annum, to be increased in case one-fourth of the son's average an-
nual net profits during the first three years exceeded £500. The
average annual profits exceeded £2,000. By a subsequent deed of
settlement, the son, when about to marry, made his father and
another trustees; the trustees to receive the proceeds of the business
from its manager and hold them in trust to pay the annuity and
an allowance to the son, and accumulate the surplus for the benefit
of the business and the son's family. The son became bankrupt,
and a policy-holder sued the father as partner. The father had
expressly stipulated with the son that he was not a partner, but
this was not known to the plaintiff and therefore did not affect the
question. Blackbuen", J., says that the trustees taking the profits

21

§ 22. NATURE AND FORMATIQN.

as a reserve fund to meet the emergencies o-f the business, and not
causing the business to be carried on lor them, does not constitute
the trustees principals, which according to Cox v. Hickman is the
true question. And that the first arrangement with the father
constituted him an annuity creditor, and went no further than did
-that in Cox v. Hickman, and the trade is not carried on by or on ac-
count of the annuitant creditor. Bbamwell, B., said: "Partnership
means a certain relation between two parties. How then can it be
correct to say that A. and B. are not in partnership as between
themselves; they have not held themselves out as being so, and yet
a third person has a right to say they are so as relates to him ? "
" K A. agrees with B. to share profits and losses, but not to inter-
fere with the business, nor buy nor sell, and C, knowing this, deals
with B., he would have no claim on A. Why should he if he does
not know of it? Why, upon finding out something between A.
and B. which has in no way affected or influenced him, should he
who has dealt with B. have a claim on A. ? " The whole of Baron
Bramwell's opinion is a powerful expose of the illogical and untrue
basis of the old law. Shee, J., and Pigott, B., dissented.'

§ 22. Same, with large powers of control. — In Moll wo,
March & Co. v. The Court of Wards, L. R. 4 P. C. 419 (1872),
two partners as W. N. Watson & Co. were deeply indebted to the
rajah for large advances in their business, and the rajah, to have
security for his debt and for future advances, and wishing also to
obtain some control over the business, by which he might check
what he considered the excessive trading of the Watsons, entered
into a contract wil^h them by which they agreed to carry on their
business subject to his control, in that he could take possession of
consignments, and the Watsons could not sell or make shipments
without his consent or draw money without his sanction, and he
might direct a reduction or enlargement of the establishment, and
agreed that their stock in trade should be answerable to him, and
that he should receive twenty per cent, of the net profits until the
debt due him should be paid off, and should also pay him twelve
per cent, interest on the debt. In fact the rajah never received any
property, proceeds or interest and exercised but little control; but
the question was on the effect of the agreement to make him liable
as a partner to the plaintiffs for a debt contracted by the Watsons.

1 This case was followed in Ex parte Tennant, 6 Ch. D. 303,

23

TESTS OF A PARTNERSHIP. § 22.

Sir Montague Smith, rendering the decision of the court, after
criticising the test of liability as partner laid down in Grace v.
Smith and Waugh v. Carver as based on unsound reasons, says
"the judgment in Cox v. Hickman had certainly the effect of dis-
solving the rule of law vvliieh had been supposed to exist, and laid
down principles of decision by which the determination of cases of
this kiud is made tp depend, not on arbitrary presumptions of law,
but on the real contracts and relations of the parties. . . .
Whether that relation does or does not exist must depend on the
real intention and contract of the parties." To the argument that
the large powers of control constituted the rajah, in fact, the man-
aging partner, he says that the rajah had no initiative power; he
could not direct what shipments should be made or require the
Watsons to continue to trade; his powers, however large, were
powers of control only. It was held that the parties did not in-
tend to create a partnership; that their true relation was that of
creditor and debtors; that the trade was not carried on for the com-
mon benefit of the Watsons and the rajah so as to create a partner-
ship, nor carried on for the rajah as principal in any other
character; that he was not in any sense the, owner of the business.

In Dean v. Harris, 33 L. T. N. S. 639, A., by written agreement, .
lent B. £2,000 as capital to develop mines, A. having a lien on the
mines to secure repayment, and to receive 3c?. per ton on the
product as commission; B. to receive a salary, which was not to
commence until A. had been repaid-, and A. was to have three-
fourths and B. one-fourth of the net profits. A. advanced in all
£11,000 and died. He was held not to be liable as a partner for
the debts.

In Kelly v. Scotto, 49 L. J. Ch. 383; 42 L. T. N. S. 827, S. hav-
ing a building contract.to erect eight houses and needing funds,
H. made advances to him, taking his contract as security for repay-
ment, S. agreeing to finish two of the houses, keeping accounts of
the cost open to H.'s inspection, to procure leases of the houses to
nominees of H. and sell the leases at prices fixed by H. and apply
the proceeds to repay H.'s advances; H. also to have half the dif-^
ference between the cost and the proceeds, and, in case of deficiency
to pay his advances and share of the proceeds, were not to have a
lien upon the other houses. H. was held not liable as a partner
for the timber used in building.'

iFor cases where a pretended loan is a mere device, see infra, § 50.

23

§ 23. NATURE AND FORMATION.

§ 23. Influence of Cox v. Hictman in America. — The most
prominent feature of the modern English law may be
summed up as follows: A person is not liable as a partner
to third persons unless he js an actual partner inter se, the
case of holding out of course apart.

This doctrine is announced as the law in the following
cases', which wiU be examined seriatim, with a simplified
statement of the facts of each; for in some of them the
court has seizpd the opportunity to express an emphatic ap-
proval and adoption of the doctrine where the facts of the
case did not strictly involve it.'

In Meehan v. Valentine, 29 Fed. Rep. 276, A. lent §10,000 to
partners, who were at the end of a year to^ pay him one-tenth of
the profits over $10,000, and if the profits did not exceed |110,000,
then merely interest on the sum loaned. In an action on notes
made by the firm it was held that A. was not a partner; that par-
ticipation in profits did not constitute a partnership, though suffi-
cient proof of it in the absence of other evidence. The court approves
Cox V. Hickman, and says that Berthold v. Goldsmith, 24 How. 536,
is not contrary to the modern law.

In re Francis, 2 Sawy. 286; s. o. T.Bankr. Reg. 359, while hold-
ing the loan in that case to be a device, and therefore a contract
of partnership, approves the doctrines of Cox v. Hickman. Deady,
J., rules that if the evidence is consistent with a partnership or a
mere employment, the burden of proof is upon the participants in
the profits to show that he is not a partner when sued by third
persons.

Be Ward, 8 Reporter, 186 (TT. S. D. C. Tenn. 1879), holds that a
loan with interest in a proportion of profits or share of profits does
not per se import a partnership, though strong evidence of it, and
approves Cox v. Hickman.'

In CuUey v. Edwards, 44 Ark. 423, an agreement as follows: Re-
ceived $9,491.77 which I invested in merchandise in 1866, which
moneys I promise to keep invested in merchandise or other business
which may be agreed upon until May 1, 1886, at which time I prom-

1 Many earlier American cases had Marshall, 12 Conn. 69; 30 Am. Dec.
recognized that to constitute one a 596 ; Polk v. Buchanan, 5 Sneed
partner even as to third persons he (Tenn.), 721.

must be a principal. Berthold v. ^ See, also, Moore v. Walton, 9
Goldsmith, 24 How. 536 ; Loomis v. Bankr. Reg. 403.

24

TESTS OF A PAETNERSHIP. § 23.

ise to pay it back with one-half the net earnings, was held not to
show a partnership because the party was bound to refund the prin-
cipal in any event. The court say further that participation in
profits as a test of partnership is abandoned in England and in
this country, and that the test is whether the business is carried on
on behalf of the person claimed to be charged; that is, was he a prin-
cipal towards the ostensible traders? And they approve atid adopt
the doctrines of Cox v. Hickman and the other later English cases,
tb ;agh the question in the case was inter se and not as to third
persons.

In Le Levre v. Castagnip, 5 Colorado, 564, M. owned a mine, and
having no money to work it, L. furnished him with $2,000, in con-
sideration of which M. agreed to give him one-fifth of the profits,
and, in order to secure him in the advances, to deliver to him all the
ore until repayments. This was held not to be a partnership inter se
or as to third persons.

In Vinson v. Beveridge, 3 MacArthur (D. C), 697, it was held
that a person receiving a share of the profits, but without being a
partner, is not liable as one in the absence of a holding out.

In Smith v. Knight, 71 111. 148; 22 Am. Rep. 94, a firm agreed
to advance money to H. to enable him to do a commission busi-
ness, for which he was to pay legal interest and divide commis-
sions, less office expenses, the firm not to be liable for losses. This
was held not to render the firm liable as his partners to third per-
sons for losses, because the intention of the parties is to be consid-
ered, and that was that losses were not to be shared.'

In Macy v. Combs, 15 Ind. 469 (1860), it was held that the in-
tention of the parties is often necessary in case of doubt, even to
ascertain if a partnership exists as to third persons.

In Williams v. Soutter, 7 Iowa, 435 (1858), in an action against
S. and D. for the price of goods sold, an agreement was admitted in
evidence whereby D. agreed to lend S. $2,000, to be employed in
business, for twelve months, to Ibe repaid with thirty per cent, in-
terest or one-third the profits, less business expenses, if desired,
but D. not to be expected to take an active part in the business.

1 In Niehoff v. Dudley, 40 111. 406, an intention expressed not to be
a loan on a share of profits in lieu of partners, they are not such even as
interest, though evidence of a part- to third persons. For the facts of
nership, held not absolute ; the inten- this case see § 48.
tion governs ; and here there being

25

§ L'S. NATURE AND FORMATION.

This, witli other evidence, was deemed to show a partnership; but
as the judgment was reversed because some of the other evidence
of a partnership was hearsay, it follows that the court did not con-
sider the above agreement to amount to a partnership, for other-
wise the incompetent evidence would have been immaterial.

In Chaffraix v. Lafitte, 30 La. An. Part I, 631 (1878), a bank
made an agreement with two firms, one firm in the sugar business
to buy molasses and ship in the name of the other, a cotton firm,
deliver to the latter the bills of lading, the latter to pay for it with
the money of the bank; the two firms to receive part of the profits
for services and share the losses. This was held not a partnership
between the three, even as to third persons, they not having in-
tended to form a partnership, nor held themselves out as such.

In Beecher v. Bush, 45 Mich. 188 (40 Am. Rep.-465), it was held
that where a person hires a hotehfrora another and runs it, paying
the owner from day to day a sum equal to one-third of the gross
receipts, this is not a partnership; and there is no such thing as a
partnership as to third persons when there is none inter se, in the ab-
sence of concealment or deceptioD. The court (Coolby, J., pp. 200-
202) approve the late English decisions to the full extent, and say
that the elements of partnership are community of interest in the
business, for the conduct of which the parties are mutually prin-
cipals and agents for each other, with general powers within the
scope of the business, though these powers may inter se be re-
stricted, even to making one partner the sole agent; yet if there is
no agency there is no partnership, and the agency must be intended
by^ the parties.'

In Kellogg Newspaper Co. v. Parrell, 88 Mo. 594 (1886), by an
agreement between F. and L., F. turns over his newspaper to L. for
one year, L. agreeing to run it in every respect as if he were the
owner, in his own name, pay all expenses and give F. one-half the
net profits quarterly. F. reserves the right to indicate the general
and political policy of the paper and to sell the one-half interest
at any time, and will then lease to L. the other half at f 1,500 per
annum. The plaintiff sold materials to L. and now sues F. for the
price. It was held that F. was not liable as a partner; that shar-
ing of profit and loss does not necessarily constitute a partnership,
but it is a question of intent, and L. was to conduct the paper as

1 Followed in Colwell v. Britton (Mich.), 36 N. W. Rep. 538.

26

TESTS OF A PARTNERSHIP. § 23.

owner and not as partner and pay all expenses. F.'s reservation
of a control of the policy of the paper was not a control over its
business aifairs, and the one-half the proceeds to be paid him was
merely compensation.'

In Parehen v. Anderson, 5 Montana, 438 (1885), N. let two part-
ners, A. & S., have $500 on the following agreement: "In con-
sideration of $500 we sell one-fourth of the net profits of -the
Centennial mill to ]Si ." It was held not sufficient to constitute N.
a partner, he not intending to be one. The court approve the
modern English and American cases, and while saying that the
agreement is strong evidence" that N. was a partner, but that shar-
ing profits alone is not an arbitrary test, add (pp. 447 and 457) that
if there is no partnership inter se there can be none as to third
persons, except by holding out. They notice, however, that net
profits may mean the results of business already transacted and
concluded.

In the court of appeals of New York, in Leggett v. Hyde, 68
N. y. 272, 281 (17 Am. Hep. 244), (aff'g 1 N. Y. Supreme Ct. 418),
it was said that the doctrines of Cox v. Hickman had not been>
adopted in that state," and accordingly a loan on a share of profits
in lieu of interest, the principal to be repaid regardless of the suc-
cess of the business, was held to constitute the parties partners as
to third persons, contrary to the lender's intention. It was justly
observed in the supreme court of Michigan in Beecher v. Bush, 45
Mich. 188, 195-6, that in New York the doctrine that participation
in profits created the liability of partners had been closely adhered
to, and that the courts were hampered by their own early decisions
and had not followed Cox v. Hickman to the full extent.

But the later New York cases do not sustain these rulings and
statements. In Central. City Sav. Bk. ?;. Walker, 66 N. Y. 424,

1 See, also, Kelly v. Gaines, 24 Mo. made in Burnett v. Snyder, 81 N. Y.

App. 506. In Campbell v. Dent, 54 550 (37 Am. Rep. 527), with the

Mo. 325, 333, it was said that, com- further statement that the sharing

munion of profits would not consti- profit and loss must be as a proprie-

tute a partnership unless each party tor with a right to an account and a

had an interest in the profits as prin- lien, and that therefore a sub-part-

cipal trader, and the old case of ner is not liable as partner to thii-d

Waugh V. Ckrver (§ 16) was said to persons. Thus the opinion denies

be bad law, both in England and this Cox v. Hickman and adopts it in full

country. immediately afterwards.

2 The same statement was again

27

§ 23. NATURE AND FORMATION.

430, ALLEisr, J., said that to constitute a partnership as to third
persons there must be an assent of the individuals to the creation
of that relation, or an estoppel or ratification, and cites the New
Hampshire case of Eastman v. Clark, which approves the modern
decisions to the full extent. And a sharing of proiits in lieu of in-
' terest on a loan has since been held not to create a partnership.'

In Eastman v. Clark, 53 N. H. 276 (16 Am. Rep. 192), two per-
sons, each owning a coach and horses, agreed to run a line of
coaches between two points and divide the gross receipts, and this
was held not to constitute a partnership inter se or as to third per-
sons. The opinion in this case is several hundred pages long and
very minute in its examination of authorities. It attacks the rule
that participating in the net profits creates the liability of partner
as to third persons with great severity. It strongly approves and
adopts the law as laid down in Cox v. Hickman and cognate cases,
and holds that agency is the true test, and that the interest in the
profits must be as a principal trader.

This case necessarily overrules doctrines such as those laid down
in the earlier case of Bromley v. Elliot, 38 N. H. 287, 306.

In Wild V. Davenport, 48 N. J. L. 129, where an executor was
receiving part of the profits under the will of a deceased partner,
the court said that participation in profits was not an invariable
test of partnership, and that if a party is not actually in business
as a principal trMer he is not liable as a dormant partner except
by virtue of a contract making him actually a partner.

In Brundred v. Muzzy, 25 N. J. L. 268, a contract recited that
Brundred & Son owed Bell & Son, and to secure the debt, and for
further advances, authorized Bell & Son to have the entire manage-
ment and control of their business until the debt was reduced to
$10,000, giving them until then sole power to collect all moneys
due and pay all present and future indebtedness, and assigning
them all the property of Brundred & Son, who would draw a stated
.sum for support. This was held not to make Bell & Son partners,
land, therefore, not liable on a subsequent note made by Brundred

1 In Richardson v. Hughitt, 76 N. Fowler, 87 id. 33 (41 Am. Rep. 343),

Y. 55 (82 Am. Rep. 267), where the (afE'g 14 J. & Sp. 195), where the

product was to be put into the lend- lender was to receive interest and

er's hands as security, and an ac- half the profits. See, also, Cassidy

count of sales made to him. Eager v. Hall, 97 N. Y. 159 ; Magovern v.

V. Crawford, 76 id. 97; Curry v. Robertson, 40 Hun, 166.

23

TESTS OF A PARTNERSHIP. § 23.

& Son. For even if Bell & Son are to take all the profits, they take
as creditors and not as participators, and such profits inure to the
benefit of Brundred & Son.

In Harvey v. Ghilds, 28 Oh. St. 319 (22 Am. Rep. 387), P. had
contracted for two car loads of hogs and agreed that if 0. would
lend him money enough to pay for, them and others, enough to
make up two car loads, C. could take possession as security, sell
them and keep one«third of the net profits, but the money was to
be repaid in full in case the proceeds were insufficient, so that 0.
should have no loss. There was a loss, but P. repaid C. in full, but
had not paid for the hogs, and the vendor sued C. for the price, and
the arrangement was held not t« be a partnership but a loan and
a pledge; the hogs were P.'s and not C.'s. Cox v. Hickman and sim-
ilar cases are approved and announced to be the law, and the rela-
tion of each as principal and agent to be the true test of partnership,
and liability to rest on the ground that it was incurred on the ex-
press or implied authority of the party sought to be charged, and
profits must be shared as principals in a joint business where each
has express or implied authority to bind the others.

In Hart v. Kelley, 83 Pa. St. 286, A. agreed to loan B. sufficient
to enable him to carry on a saloon business in a specified house, the
lehder to receive three-fourths of the net profits as compensation
for the use of the "money. In an action against him for work and
labor on the property he was held not a partner, and Cox v.
Hickman was approved. ' It is statutory in Pennsylvania, however,
that a lender of money on a share of profits in lieu of interest is not
a partner.' /

In Boston, et,c. Smelting Co. v. Smith, 13 R. I. 27 (43 Am. Rep.
3), a. contract by which M. is to loan S. $5,000 for one year and iii-
dorse for him, for which S. is to pay him ten per cent, of his net
business profits and two per cent, of his net profits for every $1,000
indorsed for him over said $5,000, S. agreeing to conduct his business
to the best advantage, keep accurate accounts open at all times to
M.'s inspection, was held not to constitute a partnership but to be
a mere contract of loan; there being no reason to suspect a latent
design to form a partnership, under the disguise of a loan; and the

1 S. p. also Irwin v. Bid well, 72 Pa. ceive a share of profits and a sum
St. 244, aud Lord v. Proctor, 7 Phila. equal to a share of profits seems to be
630; but in Pennsylvania the old dif- recognized. Lord v. Proctor, 7 Phila.
ference between an agreement to re- 630 ; Irwin v. Bid well, 73 Pa. St. 244

29

§ 23. NATURE AND FORMATION.

agreement as to the conduct of the business being merely a require-
ment to observe good faith. The court say that the later English
cases are the truest exposition of the common law.

In Polk V. Buchanan, 5 Sneed (Tenn.), 721, one who has loaned
money to a mining concern, and as a security has taken a convey-
ance of one-half of their mines, and was to receive one-fourth of the
profits in consideration of the loan, but without intention of being
a partner, does not become one as to third persons, and was there-
fore held not liable for the hire of slaves.

In Buzard v. First Nat. Bank (Tex. 1886), 2 S. W. Eep. 54, Buz-
ard, who had employed Pennington as his agent on a salary to
buy and sell cattle, by a new agreement advanced to him $16,500
to be used in buying cattle; Pennington to buy, keep and sell
them, use the proceeds to repay the advance, and divide the net pro-
ceeds equally. If the proceeds were not sufficient, Buzard was to get
back his money and Pennington to receive nothing, but was to have
no loss except of his labor, his share of profits being in lieu of his
former salary. The cattle were to bear Buzard's brand, but Pen-
nington was to use his discretion in the business, excepting that
Buzard fixed certain limitations of prices in buying and selling.
In an action on a note given by Pennington in his own name for
money advanced by plaintiff and put into cattle, it wais held th'^t
Buzard was not liable, as he did not intend or believe himself to be
a partner. The court approve the rule of Cox v. Hickman and at-
tempt to distinguish Cothran v. Marmaduke, 60 Tex. 370.

In Chapline v. Conant, 3 W. Ya. 507, C. and W., the latter as
trustee of Mrs. E., bought and equipped a hotel; then C. and E.,
the husband of Mrs. E., went into partnership as C. & E. to run it,
under an agreement by which C. and the trustee, W., were to pay
the losses and divide the profits equally. E. was not to be liable
for losses, or be entitled to any profits. C. was to pay half the
profits to W. as trustee, C. and W. paying the losses and dividing
the profits equally. It was held that the profits payable to W. were
in the nature of rent; that as the evidence showed he did not intend
to be a partner with C. and E., nor did they intend he should, nor
did he act as such, he was not liable as one to a third person upon a
negotiable draft made by C. and E. ; that a right secured to W. to
inspect the books and require an account does not make him one.
Cox V. Hickman is approved as being the law. The test was said to
be whether the supposed partners acquire any property in or con-

30

TESTS OF A PAHTNERSHIP. § 24.

trol oyer or specific lien to the profits while they remain undivided
in preference to other creditors.

In In re Randolph, 1 Ontario A pp. 315, R., by an agreement
with P. and H., was to consign lumber to t^iem, they to guaranty
sales and receive one-half the net profits, instead of the commissions
which they had been in the habit of receiving under a former ar-
rangement between the parties. This was held not to constitute a
partnership, none being intended, although P. and H. on one oc-
casion shared a loss, and therefore P. and H. could claim as cred-
itors against R.'s estate with other creditors. Cox v. Hickman is
approved and followed in this case.

In Darling v. Bellhouse, 19 Up. Can. Q. B. 268, an agreement by
which a creditor of a firm was to be paid his debt in instalments and
meantime to have access to the books and act as purchasing agent on
a salary, and as soon as the shares of the partners should equal his
debt he was to have the right to become a partner or draw out his
debt with a bonus as compensation for the right to be a partner
was held not to constitute a partnership.'

§ 24. Proximate tests of intention. — The intention of the
parties being the sole criterion of partnership, certain prin-
ciples may be laid down as approximate guides to ascertain
it. No really absolute tests can bq given; for even if the
vast mass of cases vpere harmonious, it rarely happens that
a single one of the following principles controls ; on the con-
trary, each case generally involves several, some of which
point towards partnership and others to a contrary inten-
tion; hence each case stands somewhat upon its own cir-
cumstances, much as in the cases of the construction of
wills, and must be taken by the four corners.

The cases wiU be considered in the following principal
classes:

I. Where the agreement isto share both profit and loss.

1 To the same effect, see Hill v. having power to replenish the stock

Bellhouse, 10 Up. Can. C. P. 133. from time to time to facilitate sales of

These cases were decided while Cox old stock, this was held not to make

V. Hickman was pending in the assenting creditors partners therein,

house of lordfi. the power to purchase being only as

In Maulson v. Peck, 18 Up. Can. absolutely necessary and not to make

Q. B. 113, trustees under an assign- money,
ment for the benefit of creditors,

31

§ 2C. NATURE AND FORMATION.

II. Where the agreement is to share profits and saying
nothing as to losses.

III. Where the agreement is to share profits but not
losses.

IV. Where the agreement is to share gross returns.

I. SHARING BOTH PROFIT AND LOSS.

§ 25. An agreement to share in the profit and loss of a
business or adventure, shows an intention to create a part-
nership unless such evidence of intention is controlled by
stipulations or interpreted by conduct inconsistent with it.

§ 26. With a common stock. — Where the goods or ma-
terial, or the money wherewith to buy them, are contributed
by all, and are joined in a common stock, and are to be used
or disposed of for joint benefit, with an agreement for a di-
vision of profit and loss, this constitutes a partnership.'

Thus, where four persons agreed that one of their number should
buy potatoes in New Hampshire and Vermont, send them to mar-
ket, each to be accountable for his own sales, the cost of purchasing
and the profit and loss to be in specified proportions, it was held a
partnership, for the purchases were for sale again for joint benefits,
negativing the idea of separate interests, and the division of profit
and loss shows that it is not a mere joint ownership of property,
but with right of separate disposition, i. e., without joint profits.
Nor is it a division of profits as compensation for services, for each
put in part of the capital and neither was the servant of the others.
Nor was it a division of profits as compensation for the use of capi-
tal, for they owned the property jointly, without agreement for

iSee Moore v. Davis, 11 Ch. D. 261; v. Buntin. 118 Mass. 279; Bohrer v.

In re Warren, 3 Ware, C. C. 322 ; Drake, 33 Minn. 408 ; Priest v. Chou-

Feliohy v. Hamilton, 1 Wash. C. C. teau, 12 Mo. App. 352 (aff. 85 Mo.

491; Scott V. Campbell, 30 Ala. 728;- 398); Cumpston v. McNair, 1 WenJ,

Meaher v. Cox, 37 Ala. 201 ; Autrey 457 ; Smith v. Small, 54 Barb. 223 ;

V. Frieze, 59 id. 587 ; LafEan v. Naglee, Arguirabo v. Hillier, 17 Jones & Sp.

9 Cal. 602; Solomon v. Solomon, 3 253; Jones v. Call, 93 N. Ca. 170;

Ga. 18; Morse v. Richmond, 97 111. Choteau v. Raitt, 20 Oh. 133; Burn-

303 (aff. 6 111. App. 166); Aultman v. ley v. Rice, 18 Tex. 481, 496; Duryea

Fuller, 53 Iowa, 60 (in effect revers- v. Whitcomb, 31 Vt. 395; Chapman

ing Iliff V. Brazill, 27 id. 131); Star- v. Wilson, 1 Rob. (Va.)367.
buck V. Shaw, 10 Gray, 492 ; Somjrby

32

TESTS OF A PARTNERSHIP. § 27.

severance until final accounting, and they relied on tlie proceeds
and property for reimbursement and not on individual credit.'

Tliat a certain class of losses is not to be divided makes no differ-
ence; thus, where two steamboat owners a'greed each to furnish a
certain number of boats in which the respective owners should
retain the property and assume the risk, and be liable for losses by
accident and negligence, but the compensation of joint agents, and
damages or losses on cotton should be a joint charge, and the
profits, less running expenses, should be divided, this is a partner-
ship inter se."

So if, on dissolution of a partnership, oue partner agrees to take
all the assets, pay all the debts, give the other one-third of the prof-
its arising from sales of goods, and the other agrees to share one-
third the losses and act as clerk, this constitutes a partnership
inter se.'

Persons who purchase land on speculation, contributing equally to
the cost and the expenses of platting and improving it, the proceeds
after paying expenses to be equally divided, are partners and all
liable on a note made by one of their number in whose name the
title was taken, he being authorized to make loans, although the
lender was not aware of the source of his power.*

Where it was agreed that T. should make a note and four others
should indorse it; that the note .should be discounted and the pro-
ceeds used by T. to buy and sell brooms in his own name, and the
proceeds of sale, after paying the note, should be divided and profits
and losses shared, and T. sold brooms and received in payment for
some of them a note which he indorsed in his own name to the
plaintiff, the other four persons are liable on the note as partners
doing business under the name of T.'

§ 27. Same; services. — Similar to this class of cases is the
class where the dealing is not in goods or manufactures, but
is in rendering services requiring the use of a capi tal and the
possibility of a loss; here a joint contribution of capital and
agreement to share profit and loss creates a partnership.

iDuryea v. "Whitcornb, 31 Vt. strong presumptive evidence of a
395. partnership, but conclusive of it,

2 Meaher v. Cox, 37 Ala. 201. * Morse v. Richmond, 97 111. 303

3 Scott 'u Campbell, 30 Ala. 738. (affirming 6 111. App. 166).

The case seems also to hold that * Mohawk Nat. Bank v. Van Slyck,
sharing profit and loss is not merely 29 Hun. 188.
Vol. I — 3 33

§ 28. NATURE AND FORMATION.

Thus, where M., owning a contract to carry the mails, sold half
of it to C. and they agreed to carry together, sharing profit and loss,
it is a partnership and not an employment.' So of two contractors
to build a railroad, sharing profit and loss, they are partners; hence
one alone can swear to a chattel mortgage for both." So of a con-
tract between two parties to share profits and losses on their
contracts with towns to furnish recruits.' So of a contract to
prosecute a voyage, each giving his time and services, sharing the
freights earned and dividing profits and losses; therefore the freight
earned cannot be garnished in an action against one alone.^ Where
two firms agree to pack pork on joint account for one season, shar-
ing profit and loss, it was held to be a partnership inter se, though
one firm alone had control of and could sell the product; hence
each firm can require the assets to be applied to the debts.' Where
one party agreed to furnish a horse and mail-cart and the other pay
him a stipulated annual sum for them, but expenses for repairing
and losses of packages and receipts are to be divided, it is a partner-
ship.'

§ 28. When one contributes whole capital. — ^If one person
is to furnish the property, or the money with which to pro-
cure it, and the other is to give his services in disposing of
it under an agreement by which they are to divide profit
and loss, it is a partnership inter se, for a sharing of loss is
generally inconsistent with a mere employment. '

Thus a contract by which K. was to furnish a stoc^ of goods and
keep it up, it to remain his property, and N. was to sell them, pay-
ing over all cash each day, and drawing $50 per month, and at the

iCole V. Moxley, 13 W. Va. 730. 'Pawsey v. Armstrong, 18 Oh. D.

s Belknap v. Wendell, 1 Foster (81 698 (doubted in Walker v. Hlrsch, 37

N. H.), 175. id. 460); Emanuel v. Draughn, 14

» Marsh v. Russell, 66 N. Y. 288. Ala. 303; Couch v. Woodruff, 63 Ala.

*Bulfinchi;.Winohenbach, SAllen, 466; Clark' u Gridley, 49 Cal. 105;

161. Pierce v. Shippee, 90 111. 371 ; Kuhn

'Meador v. Hughes, 14 Bush, 652, v. Newman, 49 Iowa, 424; Getchell
and Brett v. Beckwith, 3 Jur. N. S. v. Foster, 106 Mass. 42 ; Brownlee v.
31, of two underwi-iters agreeing to Allen, 21 Mo. 123 ; Mulhall v. Cheat-
share profit and loss of their busi- Iiam, 1 Mo. App. 476 ; Tyler v. Scott,
nesses; S. p. Shubrick v. Fisher, 3 45 Vt.. 261; Sprout v. Crowley, 30
Desaus. 148. Wis. 187.

6 Green v. Beesley, 2 Bing. N. Cas.
108.

34

TESTS OF A PAETNEKSHIP, § 29.

end of the term N. is stand half the losses and take half the profits
in merchandise on hand, was held a partnership as being the usual
case of one furnishing the goods, the other his time, and dividing
profit and loss, except that the goods remain K.'s property, which
means only that they shall belong to him until N. acquires an in-
terest. Hence, K. cannot replevy from N., ncft can he show exclu-
sive title by proving that there were no profits, for such evidence
would require an accounting in a law case.'

So if P. furnishes S. money to buy corn, S. to pay all expenses
of shipment and sale, reimburse to P. the cost, gain and loss to^ be
equally divided, S. buying in his own name, this is a partnership ;"
or where A. furnishes B. money to buy tobacco on joint account,
B. to buy, prize and sell the tobacco, profit and loss to be divided.
This^is a partnership.'

§ 29. Sharing profit and loss when not a partnership. —

But an agreement to share profit and loss does not abso-
lutely constitute a partnership as a conclusion of law. Jf
other circumstances show that no partnership was intended
or created they will control.^ A conspicuous example of
this is where a partner agrees to divide the profit and loss
or' profit of his share with a third person, thus forming a
subordinate partnership. The sub-partner, although he
gains or loses as the principal firm does, is neither their
partner nor liable to their creditors as such. This will be
treated hereafter under Sub-partnerships.

An arrangement by which one person buys and ships goods for a
firm in another city, with their funds, profit and loss to be divided,
and each shipment to be a distinct venture, was held not a part-
nership inter se, and .therefore the firm could sue on a policy with-
out prejudice from the acts or order of the other, who had altetnpted

1 Kuhn V. Newman, 49 Iowa, 424 ; V. Hirsch, 27 Ch. D. 460 ; Noakes v.

S. P. Getchell v. Foster, 106 Mass. 42. Barlow, 26 L. T. N. S. 36 ; Chafifraix

2Piercew. Shippee, 90 111. 371. u Lafitte, 30 La. An. Part I, 631,

3 Clarke v. Ware, 8 Ky. Law Rep. supra; Dwinel v. Stone, 30 Me. 384 ;

438. Smith v. 'Wright, 5 Sandf. 113, but

^ Bullen V. Sharp, L. R. 1 C. P. 86 this point was shaken on the afHrm-

(supra, § 31) ; Kilshaw v. Jukes, 3 Best ance of the case in 4 Abb. App. Dec.

& Smith, 847 {supra, § 30) ; Ex parte m.
Delhasse, 7 Ch. D. 511, 531 ; Walker

85

§ 29. NATURE AND FORMATION.

to cancel the policy.' So where A. furnished hides to B., to be made
into leather and returned to A., B- to receive a certain sum per
pound, and profit and loss to be divided, this is not a partnership,
and hence B.'s sale of the leather to a third person gave him no
title as against A.' So where two firms, A. & B. and C. & D., agree
with each other to furnish S. with a certain amount of wool in
certain proportions, agreeing among themselves to divide profit and
loss, theiJ^ were held not to be partners, and therefore could not join
in action against S. for the proceeds.' Where W. agreed with M.,
B. & Co. to buy timber land, cut the timber and put it on the cars,
M., B. & Co. to sell the lumber, and after paying W. the cost and
$4.50 per thousand feet, the net proceeds, deducting further ex-
penses, were to be divided and losses were to be divided, it was held
that the parties are not taxable as a firm on the lumber. M., B. &
Co. had no control of it before shipment and W-. none after.''

Where plaintiff was to cultivate defendant's farm, each to pay
half the expenses and divide the profits equally, a charge to the
jury that they were partners was held erroneous. They are not
necessarily partners, but wero probably mere tenants in common
in the crop."

A. and B., buyers of cattle each on his own account, for ship-
ment, to avoid conflict and rivalry agree to buy each for himself
as before, but that each should have half the profits and pay half
the losses on every shipment of the other. This is not a partner-
ship.'

Where plaintiff by contract was to share in profits and losses of
defendant's business for three years in the proportion of seventeen

1 Marsh v. Northwestern Natl. Ins. agreed to give H. one-third of his net
Co. 3 Biss. 351. profits for a year, A. to, bear one-

2 Fawcett v. Osborn, 32 111. 411. It third the losses, and to attend to the
is not certain whether the court business, but B. to have entire con-
ruled there was no partnership, the trol. The object of this contract
question being as to the title of the does not appear. The court say that
goods. See the earlier case of the mere participation in profit and
same partnership. Stevens v. Fau- loss does not necessarily constitute a
cet, 24 111. 488. partnership inter se, but that it is a

3 Snell V. Do Land, 43 111. 323. question of intention, each case to
^ Monroe ?;. Greenhoe, 54 Mich. 9. be determined on its own facts, and

. 5 Donnell v. Harshe, 67 Mo. 170 ; s. that the above contract is not conclu-
P. Musser v. Brink, 68 Mo. 242 ; 80 id. sive, McDonald v. Matney, 82 Mo.
350; Ashby v. Shaw, 82 Mo. 76. In 858.

one case B., the owner of a bank, « Clifton v. Howard, 89 Mo. 193.

36

TESTS OF A PARTNERSHIP. § 29.

and one-half per cent., and to act as salesman, but not to have the
right of partnership in the firm, and the capital then standing to
his credit on the books was to remain in at seven per cent., but he
could draw an annual amount for support, it was held that the
parties were not partners inter se, and therefore that plaintiff was
not chargeable with iuterest on losses of the first year, but that his
percentage related to the result of the entire term and not of
each year.'

Where E. sold goods to T. B. & Co. and sues them, and also V. and
X., claiming the latter to be partners of T. B. & Co., the relation
between the defendants being created by a writing, whereby V. and
X., who lived elsewhere, were to pay half the rent of a store to be
hired by T. B. & Co., the latter to sell goods sent them by Y. and
X., paying all expenses and to sell no other goods, and to receive a
commission equal to one-half the net profits on sales, and pay one-
haff of any loss that might occur, V. and X. are not partners of
T. B. & Co. A commission measured by a share of the profits does
not create a partnership, and sharing losses does not mean a loss
by fall of prices, which would probal^y make them partners, but a ■
loss which might arise in the sale and disposition of the goods; as
a factor might agree to be liable for losses by robbery, fire or bad
debts.'

A contract to buy certain land, erect a mill on it, put in ma-
chinery and hold the property jointly, sharing the expense equally
and- also the profits, vrhether arising from sale or lease, and if either
paid more than his share he was to have a lien for repayment,
constitutes not a partnership but a tenancy in common, for there

1 Osbrey v. Reimer, 51 N. Y. 630 fendant, that they were to share
(affirming S. C. 49 Barb. 265.) equally in profits and losses, but

2 Ed wards w. Tracy, 63 Pa. St. 374. whether they were partners inter se
It is further said on p. 380, that con- does not appear. The court said
ceding T. B. & Co. would he liable " sharing the profits an J loss of the
as partners for purchases by V. and business is not decisive as between
X. , the correlative proposition would the parties, as there may have been
hold good, that V. and X. would be merely an arrangement with a view
liable for purchases by T. B. & Co. to compensation for services," and
In Morgan v. Stearns, 41 Vt. 898, the the referee's rejection of a claim
facts are not given ; the referee had for a share of certain expenses was
reported that a ' ' sort of partnership " affirmed.

existed between the plaintiff and de-

37

§ 80. NATURE AND FORMATION.

was no agreement for partnership, or name, or capital, or business
contemplated, or right to sell.'

In one case A. furnished cigars to B. to sell, and a horse and
wagon, each to bear half the expenses and each half the losses on
sales, the profits to be divided equally. The court held that an
action at law between the parties lay because there was no partner-
ship, but an arrangement analogous to a case of merchant and factor.
The decision was put on the ground that had A. died there was no
community of interest in the horse and wagon and cigars which
would have survived to B., nor power in B. to incur liability,
make contracts, manage the business or disoose of the whole
stock at once.''

II. SHARING PROFITS, NOTHING BEING SAID AS TO LOSSES.

§ 30. It will be remembered that our definition of part-
nership, unlike that of the Roman law, is silent as to losses.
A contract to share profits, nothing being said about
losses, furnishes by far the largest and most perplexing class
of cases, and may or may not constitute a partnership.
Many authorities have ruled that as net profits ex vi termini
import deduction for losses, this class of cases belongs to
the class just considered, and therefore constitutes a part-
nership. But in this connection, at least, there is no defer-
ence between profits and net profits, and the confusion of
the two classes is productive of error.

If there is a community of profits, a partnership follows.
Community of profits means a proprietorship in them as dis-
tinguished from a personal claim upon the other associate ;
in other words, a property right in them from the start in
one associate as much as in the other. But the saying that
one who takes part of the profits as profits is a partner has
now gone out of vogue, having been found to be unservice-
able as a test, and amounting merely to a change of expres-

1 Farrand v. Gleason, 56 Vt. 633. was a sharing of profit and loss but
In Chapline v. Conant, 3 W. Va. no partnership.
507, abstracted, above (§ 23), there 2 Newberger v. Fields, 23 Mo. App.

.631.
38

TESTS OF A PARTNERSHIP, § 31. ^

sion.' So a former difference between taking a share of the
profits and an amount measured by a share of profits is
no longer regarded. The latter expression may show an
intention not to be a partner, but the former does not
show the contrary, as will be seen in numerous instances
hereafter cited. So an old verbal difference between gross
and net profits must now be considered as unsubstantial,
as there are numerous cases where sharing net profits does
not constitute partnership.

The cases on this subject are like cases on the construction
of wills, as various as the facts of e&ch vary; and in deter-
mining the intention or the nature of the relation, considera-
tion is to be had, among other things, to the objects and
purposes of the parties; the powers granted to or withheld
from each; the extent of their interests; their former rela-
tions or occupations; the extent and nature of their interest
in the capital stock. And though the cases are not all rec-
oncilable, they may be classified so as to assist in the determi-
nation of future questions.

§ 31. With joint capital. — ^In this class of cases, if there
is a joint ownership in the capital stock, the conclusion is
irresistible that th,ere is a communion of interest in the
profits, and not a portion of them, as compensation, for
each has as much right as the other, and hence that a part-
nership results; but even here care must be taken not to
confuse a contribution to capital with a contribution of the
use of property on a share of profits or income as rent,
which may take place although the parties both own the
property as tenants in common ; as, for example, where two
persons bought a circus and one contracted with the other
to run it and divide the income. In the case from which
this example is taken there was held to be no partnership,
on the ground that dividing an income does not make a
partnership, but the same would have been true had half the
profits been payable as rent.^

i Bromley v. Elliot, 38 N. H. 287, Beecher v. Bush, 45 Mich. 188, 195
304 ; and see Parker v. Canfleld, 37 (40 Am. Rep. 465).
Conn. 350, 267 ^9 Am. Rep. 317); 2Quackenbush v. Sawyer, 54 Cal.

39

§ 32. NATURE AND FORMATION.

§ 32. Illustrations of true partnerships. — W. contributed
a steamboat to T., to be put into line, and T. contributed the good
will of an established line and his care, skill and expenses, T. to
have the management and the selection of the ofScers and crew;
but W. was to appoint the clerk and disbursing oiScer, and the re-
ceipts were to be applied in the following order: Expenses, insur-
ance $6,000, toW.; $300 to T.; balance to be equally divided.
This was held td be a true partnership and not a charter-party, for
each contributed to the enterprise and there is a communion of
profits.'

Persons who by agreement jointly buy a tract of land in order to
jointly sell it and share the profits were held to be purchasers inter
se for the transaction and to owe to each other the duties of that
relation.*

There is considerable difficulty in reconciling some of the cases
under this section and those which the court decided under § 63.
Where parties buy laud jointly to farm it and sell again, plaint-
iff to farm it, defendant to ship and sell the produce, expenses to be
shared equally and net profits divided, it is a partnership inter se,
and one cannot sue the other at law for his share.^ Where two
persons put in $3,000 each and one his personal services, and they
are to divide the net profits, it was said to be a partnership, at least
as to third persons.* So if each contribute a stock of merchandise
and are to share equally the expenses and profits, though one is to
pass for proprietor and the other for salesman.^

Where one is to furnish a mill and the other the hands to work it,
the latter to be superintendent, the profits to be divided, it was held
to be a partnership on the ground that the latter in furnishing the
hands furnished part of the capital stock, for that consists of the
mill and the hands.' One who receives money from another to in-

439 ; and see Chapman v. Eames, 67 * Perry v. Butt, 14 Ga. 699.

Me. 452. 5 Marks v. Stein, 11 La. Ann. 509;

1 Ward V. Thompson, 32 How. 330, and see Everitt v. Chapman, 6 Conn,
aff'g Newb. 95. 347.

2 Yeoman v. Lasley, 40 Oh. St. 190 ; 6 Sankey v. Columbus Iron Works,
Hulett V. Fairbanks, 40 id. 233; Can- 44 Ga. 228. So if one furnishes the
adau Barksdale, 76 Va. 899; Brink- mill and the<ither the timber; for
ley iJ. Harkins, 48 Tex. 235; Russell there is a community of interest
V. Green, 10 Conn. 369, of lumber in the sawed lumber. Jones v.
so bought. McMichael, 13 Rich. L. 176.

8 Fisher v. Sweet, 67 Cal. 238.

40

TESTS OF A PARTNERSHIP. § 32.

veat on real estate in joint account was called a partner, since the
land is held for both.' And so where G. represented that he knew
where a railroad was to run, but had no money, and R. furnished
the money, G. to buy land to be held by a third person in trust
for both, and both to have an equal interest in them, this is a part-
nership in the lands, so that a loss by depreciation, the railroad not
having been made there, must be equally borne.",

Where proprietors of a factory associate themselves to manufact-
ure a commodity, assigningio each specific departments of duty and
providing that each shall receive a stated salary, but saying noth-
ing about either profit or loss, it is a partnership inter se.^

An agreement between A. and B. that B. should furnish a
vessel and cargo, and A. should take charge and prosecute a voyage
at monthly wages of foO and one-fifth interest in the voyage and
should furnish f 1,000, A. acting on letters of instruction from B.,
which stated " for your services you are to receive $50 per month
and one-fifth interest in the cargo," was held to be a partnership
and not an employment, for there was a joint interest in the capital
inv^ested in a common enterprise. There was also additional evi-
dence that B. kept the accounts of all the voyages in a continuous
partnership account, which A. knew, which tended to show that the
interest in the profits was a common interest. Hence, it was held
that A. could not sue B. at law.*

So an agreement to cut and store ice for sale and divide the prof-
its, deducting expenses, cdnstitutes a partnership inter se, so that a
sale by some of the partners is valid. ° And agents of a company
paid by a percentage on its sales, who agree to divide the percent-
age between them and make purchases in their joint names, and
who paid bills rendered them in the joint naiiie, are partners inter
se, so that a suit for an accounting by one against the other will
lie.'

By an agreement between W. and E,., W. was to carry on a
business in the name of the X. company, furnish a certain capital
and let the company have the use of his coal land, paying him a
certain rate per ton for coal mined and interest on the capital of

1 Mill V. Sheibly, 68 Ga. 556. firmed in Barrett v. Swann, 17 id.

2 Richards v. Grinnell, 63 Iowa, 180 (33 Am. Dec. 333).

44; 50 Am. Rep. 737. * Julio v. Ingalls, 1 Allen, 41.

8Doak V. Swann, 8 Me. 170; af- » Staples v. Sprague, 75 Me. 458.

6Heise v. Earth, 40 Md. 259.

41

§ 32. NATURE AND FORMATION.

the company, and R. was to manage the business and " in payment
for his services " receive a certain annual sum and half the net
profits and let to the company his apparatus, trade-marks and pat-
ents. Annual settlements were to be made and all sums due R.
paid or credited to him on interest. This was held to be a partner-
ship infer se and not an agency, and therefore R. could not sue W.
at law for excluding him from the management and refusal to
make settlements on business continued by W. with R.'s tools, ap-
paratus, etc'

An oral agreement between A. and B. that A. should contribute
his inchoate interest in an unpatented machine, and B. money to
obtain a patent, and both their services to make it remunerative,
is an agreement of partnership and not for the sale of goods under
the statute of frauds, and the patent when obtained is partnership
property, being the result of joint contribution, in whosesoever name
it is taken out.''

Where B. was to furnish marble and A. to pay him half the cost
of it, B. to board A., and both to contribute skill and labor in
manufacturing it, and the proceeds and avails to be equally divided,
they are partners inter se and as to third persons, and both liable
for a purchase by ope of them from a seller not aware of the ex-
istence of the firm.*

M. and H. were to purchase pork on joint account and in their
joint names, and M. is to furnish all money necessary in excess of
advances obtainable on the pork and is to receive back his advances
with interest, the balance to be divided; this is a partnership inter
se and not a loan; hence M. has a priority in the assets over H.'s
individual creditors.*

Under a contract between W. and B., by which W. leased to B.
his factory with tools and machinery, and B. agreed to use it so as
to afford the greatest profit to the parties, manufacture, give all
his time to it, furnish all necessary capital and labor and keep
books open to W.'s inspection, take an account at stated periods and
divide profits after payment of expenses, B. to have also a salary
and interest on any capital over $20,000, the court held a suit for
an accounting and dissolution was maintainable, the parties being

1 Ryder v. Wilcox, 103 Mass. 24. s Griffith v. BufEum; 22 Vt. 181 ; 54

2Somerby v. Buntin, 118 Mass. Am. Dec. 64
279. * Miller v. Price, 20 Wis. 117.

42

TESTS OF A PARTNERSHIP. § 33.

partners because there was a common interest in tlie capital and
profits.^

An agreement to buy an interest in a business with a view to
carry it on together, sharing profits, is an agreement of partner-
ship.'

§ 33. illustrations of partnership as to third persons.'

A. & B. having a contract to build a railroad sold an interest in it
' to C. & D., the latter to be equally interested in the profits, bene-
fits and advantages of the contract, it being the intention to make
them in all respects equal with A. & B., the business to be in the
name of A. & B. This is a partnership inter se and as to third
persons, because it conveys an interest in the business itself an^
not in the profits, as compensation or as interest on a loan, and C.
& D. are liable on a note for supplies signed A. & B.*

Tyler, owning a tin shop, agreed with D., a plumber, to work
together, Tyler to have ten per cent, of the profits on his stock
and the balance of profits to be equally divided, the concern being
continued in Tyler's name; annual balances being struck and D.'s
share being carried to his credit; both giving their entire time.
This was held to be a partnership, as being an agreement to share
profit and loss. It was certainly a joint business, and, hence, in-
ferentially an agreement to share profit and loss.*

Where D. & Co. were to furnish a stock of goods and shop fixtures
valued at $4,000, and B. was to manage the business, pay interest
on half the valuation and pay rent for the store, and divide the
profits equally, this was held to constitute a partnership as to third
persons, although there was a prior understanding that B.'s share
of profits was in lieu of a salary."

Where L. was owner and publisher of the " Commercial Cata-
logue," and being about to begin the canvass for its third number,
A.» a tailor, agreed to pay and paid to the business $400, L. to give
A. the orders he received, and the profits, deducting all expenses,
to be shared equally. They are partners as to third persons.'

1 Wood V. Beath, 23 Wis. 254. ^ Many of these are undoubtedly

2 Goddard v. Pratt, 16 Pick. 412, true partnerships, but I classify them
426 ; Pinkerton v. Eoss, 33 Up. Can. according to the facts.

Q. B. 508 ; Botham v. Keefer, 2 Ont. * Voorhees v. Jones, 29 N. J. L. 270.

App. 595; Plumer v. Lord, 7 Allen, 5 Tyler v. Scott, 45 Vt. 261.

481 ; Tyler v. Scott, 45 Vt. 261 ; Voor- 6 Brigham v. Clark, 100 Mass. 430.

hees V. Jones, 39 N. J. L. 370. ^Pettee v. Appleton, 114 Mass. 114.

43

§ S3. NATURE AND FORMATION.

H. & L.,-a manufacturing firm, agreed with A. & B. to form a
joint stock company of the establishment and divide the capital
among the four; and, as A. & B. advanced money for immediate
use, it was agreed, in consideration thereof, thai they should share
in the profits from that date. The joint stock company was not
organized for nine months, the business in the meantime being in
the name of H. & L.; A. & B., who were non-residents, not inter-
fering. A. & B. were held to be partners, and liable for debts in-
curred thereafter, for they shared the profits as profits. Here A.
& B. each put in $1,000.'

A. and B. each agreed to contribute distinct stocks of goods, B.
to carry on business with them in his store and the net income to
be divided. This is a partnership as to third persons and not an
employment, because B. furnishes the" store and adds to the stock;
hence A. is liable as partner for the price of goods purchased by
B., although the sscret agreement avoided common ownership in
the stock and personal liability for engagements."

A. contributed a foundry at a cental and furnished the capital;
B. contributed his services and the use of his patents, agreeing that
at the close an account should be taken of the "joint stock and
joint liabilities," and an equal division of profits should be made.
This shows an intention to create a partnership inter se, although
the word partnership was nowhere used; but no word denoting an
employment, as superintendent, foreman, etc., was used.'

Three partners agreed with four others to convey a half interest
in the business to the latter and one-half the net profits, the profits
to be applied to paying for the latter's shares of capital, and at the
end of five years the sellers were to convey to the buyers an eighth
each, that is, one-half of the property of the firm, the property to
remain in the former in the meantime. This creates a present
partnership, being a right to share profits and to use the capital
with an inchoate title in it.^

Where one hands money to another to buy corn, not as a loan
but for half the corn, the other to sell it all in his own name and
return the money and half the profits, it was held to be a partner-
ship.'

1 Citizens' Bank v. Hine, 49 Conn. ^ Vassar v. Camp, 14 Barb. 341 ;
236. affirmed on other grounds in 11 N. Y.

2 Bromley v. Elliot, 38 N. H. 287. 441.

3 Van Kuren v. Trenton Locomo- s Wilkes v. Clark, 1 Dev. L, 178.

tive &Mach. Mfg. Co. 18 N. J. Eq. 302.

44

TESTS OF A PARTNERSHIP. § 33.

A contract was held to constitute a partnership inter se and as to
third persons, and not a hiring, where A., B. and C. agree to take
charge of X. and Y.'s logging camps, to be started when the latter
should direct, hire men to run them and cut and run all the logs
they could get out during the season, X. and Y. to pay all stump-
age and pay for all hired help, teams, supplies and expenses in get-
ting the logs to market; X. and Y. to sell the logs, and, after
deducting money paid out, the balance and the teams and supplies
left over to be divided, the share of A., B. and C. to be full compen-
sation for their work and labor. The title to the property was in
all jointly and there was communion of profits, for the teams and
supplies were to be divided. The power reserved in X. and Y. to
sell the logs does not destroy the legal effect of the contract, and
X. and Y. are liable with A., B. and C. on the latter's contracts for
supplies.'

P. and L. agreed to join in raising a sunken steamer, L. to fur-
nish the machinery and P. the labbr, money and other appliances,
L. to sell the material saved and divide proceeds after repaying P.
his advances. This was held a partnership inter se and as to third
persons.'

S. was appointed sutler of a regiment, and D. agreed with him
to furnish the capital and procure a stock of goods for the business,
S. to carry on the business, and the profits, after repaying D.'s ad-
vances, to be divided. S. carried on the business in his own name,
and not as agent of D., and was held liable to third persons as part-
ner for subsequent purchases, because his interest in the profits is
a right to receive and retain one-half of the profits; but here S., in
contributing the appointment of the office, certainly contributed
part of the capital.''

But where L. had a contract to furnish timber for a United States
navy yard, and, having no money, it was agreed that plaintiff
should furnish him with funds and he should go to Florida, pur-
chase, load and ship timber, consigning it to the plaintiff for deliv-
ery, and plaintiff should receive the money from the United States
authorities, and the profits should be divided, this was said not to be a
partnership, but to be like mariners on a whaling voyage paid from
a share of the cargo, or freighters dividing the profits of a voyage.^

1 Upham V. Hewitt, 42 Wis. 85. ■'Rice v. Austin, 17 Mass. 197, 306.

2 Lynch v. Thompson, 61 Miss. 354 In Cumpston ?;. McNair, IWend, 457,
• Appleton V. Smith, 34 Wis. 331. two persons jointly owning salt

45

§ 35. NATURE AND FORMATION.

§ 34. Where one furnishes all the capital. — Where there
is no joint interest in the capital, the intention of the parties
is more difficult to arrive at, and there is a proportionately
greater tendency in the courts to disagree and to decide so
as to avoid a hardship rather than to ascertain and apply a
logical test.

Thus, if A. furnishes B. money to enable him to conduct
an enterprise or prosecute a business, and B. has creditors
whose claims have arisen independently of the business, if
A. is not a partner, the goods bought by B. with A.'s money,
being B.'s, are liable for his individual debts; but if A. is a
partner, B.'s interest in the- goods being only his share of
surplus after payment of partnership debts, including any
balance due A., A. is protected against B.'s individual cred-
itors. Hence a person may sometimes prefer to be a partner
rather than a lender, and the courts may, owing to the hard-
ship of such cases, find he was partner on insufficient evi-
dence.

Apd so, if A. furnishes all the money, goods or other
property, and B. all the services, on a division of profits, on
a question of the degree of fidelity each owes the other, the
courts would be inclined to hold them to be partners, and in
an action or suit by one against the other to obtain his share
of the results, if relief could be granted nearly equally well
in a court of law or in chancery, a court might readily sus-
tain the jurisdiction by finding there was or was not a part-
nership. These and other readily occurring considerations
account for and render probable some want of harmony in
the authorities.

§ 35. if the investment is on joint account it is a

partnership. Although one partner has furnished all the
capital, if the business or enterprise appears to be owned by
both jointly, a communion of profits as partners rather
than a sharing of them as compensation will naturally be

agreed that one should take it to name of both to defray transporta-
market, sell, and apply the proceeds 'tion charges was held to bind both,
to a joint debt. This was held a This would surely not be called a
partnership, and a note by one in the partnership now.

46

TESTS OF A PARTNERSHIP. § 35.

considered to result, or, in other words, both are principals.
This rule is, however, imperfect, since the difficulty somer
times arises to determine whether the business is owned by
both, and since joint ownership may be inferred as a conse-
quence quite as well as a cause of sharing' profits as part-
ners. The general rule in such cases of doubt is that the
parties are to be treated as partners, unless the contrary is
shown; that is, they will be supposed to have desired to ob-
tain the benefit of a partnership and to share the chances
together where they have omitted to show a contrary in-
tention.^

Thus, Gray, owning a factory, contributed it at a rent and
agreed to supply all necessary funds. Greenham was to work it,
to have "full and absolute con,trol," to empjoy and dismiss hands,
and was not to enter any other trade. He was to have for his
"management" £150 per annum and one-fifth of the profits.
Nothing was said as to losses, nor was the word "partner'" used
in the contract. Gray discharged Greenham for alleged miscon-
duct, claiming he was an employee only. They were held to be
partners. The word management was construed not' to show a re-
lation of master and servant, but to relate to a managing partner.
The great powers of control and the use of a firm name were de-
cisive. The cases of hiring were called exceptional in the sense
that a contract to share profits is presumably one of partnership.''
And where E. was to furnish a stock of merchandise and put it in
H.'s salesroom, H. to sell at retail, pay E. all proceeds and be re-
sponsible for the safety of the goods, all the expenses to be paid
out of the profits and the net income equally divided, this was
held to be a true partnership because there was a communion ot
profits.'

Where A., B. and C. made an agreement for an adventure in
Texas, A. and B. to furnish the capital, B. and C. to go to Texas
•w-ith the goods, C. to travel about there and sell, B. to recei\e- a

1 Per Jesskl, M. R. in Pooley v. 359 ; Cothran v. Marmaduke, 60 Tex.

Driver, 5 Ch. D. 458 ; Greenham v. 370.

Gray, 4 Irish Com. L. 501; Lock- 2 Greenham u Gray, 4 Irish Com.

wood V. Doane, 107 111. 235; Ryder L. 501.

V. Wilcox, 103 Mass. 24, 27.; Ee SBigelow v. Eliot, 1 Cliff. 28.
Francis, 3 Sawy. 286; 7 Bankr. Reg.

47

§ 35. NATURE AND FORMATION. ~

monthly sum for services, and C. one-fifth of the profits for serv-
ices and four-fifths to be divided between A. and B., this was
held to be a partnership inter se, although nothing is said about
sharing losses. All are principals, although C. is paid for services;
yet so is B., who is confessedly a partner.'

Where R. furnishes L. with $254, which L. agrees to invest in
cattle, feed them, and in a year sell them, the cattle to belong to
R. until the money is repaid, profits to be equally divided; L. guar-
antying that R.'s profits shall not be less than twenty per cent.,
this was held to be a true partnership in the profits and not a
cover for a usurious transaction, and a suit for an accounting lies
between them.^

If one furnishes funds and the other services and skill for a trade
or operation, profits to be shared, both are liable for the price of
goods sold to be used in the business.' Where, by an agreement
between L. and R., R. was to furnish the capital and W. to go
to Virginia to plant and buy oj'sters to be sent in R.'s vessels to
R. in New York, each to have half the net profits, they are partners
infer se, and R. can maintain a suit for an accounting against W.*
Where A. contributes services in collecting and buying hogs and
cattle, and B. furnishes the capital, profits to be divided, nothing
being said about losses, there is a community of profits and there-
fore a partnership, and A. cannot sue B. at law for his share.'

B. advanced $20,000 to H. to invest in the purchase and sale ol
cotton, goods, H. to attend to business, and, after repaying the
money, divide the profits equally. Real estate was bought with
part of the proceeds and the title taken in H.'s name. There was
held to be- a partnership inter se, and a loss must fall upon both.'
So where S. gave N. $300 to buy sheep, S. to have half the profits,
and if there were losses he was to have no interest, this is a part-
nership inter se, not merely ia the profits, but in the $300.'

Where L. agreed to lease his saw-mill for eleven months to W.
and T., and to advance $1,000 to make improvements, and to bear
one-third of the expenses of running it above that, W. and T. to

iBucknam V. Barnum, 15 Conn. 67. J. Eq. 614, but this point is not af-

2 Robbing v. Laswell, 27 111. 365. fected thereby.

3 Bearce v. Washburn, 43 Me. 564; SLengle v. Smith, 48 Ma 276.
Wright u Davidson, 13 Minn. 449. SBrinkley u Hai-kins, 48 Tex. 235.

4Ruckraan f. Decljer, 33 N. J. Eq. 'Newbrau v. Snider, 1 W. Va.
383. The case was reversed in 28 N. 158.

48

TESTS OF A PAETNEESHIP. § 36.

make certain repairs and to run the mill, the lumher to be shipped
to a person in Chicago designated by L., and the proceeds to be ap-
plied seventy-five cents per thousand feet to L. for rent, $1.75 per
thousand feet to W. and T. for expense of manufacturing, then to
L. for advances for logs to stock the mill W. and T. were to pay
' L. one-fourth of the net proceeds out of the balance. L., W. and T.
were held partners and jointly liable for the repairs to the mill be-
cause jointly interested in the lumber and in the profits.'

An agreement between two that each should furnish a horse to
break land, one to pay all expenses, the other to do all the work,
money earned to be equally divided, was held a partnership inter
se; as was also an agreement that one > should. furnish a horse
and boy for a corn-shelling machine, the other to go around with
the machine and do the work, earnings and expenses to be shared
alike. And under both agreements a suit for accounting lies.'

Two merchants agreed to open a store, one to put in all the
stock, the other to superintend, and receive one-third of the profits
"realized;" this is a partnership inter se; realized means profits
deducting losses, and a loss by fire is not different from any other
loss and must be deducted before estimating profits.'

Two persons agree to carry on a business, one to give his labor,
the other all materials and also provisions for the former's family,
profits, less cost of materials and provisions, to be divided; this is a
partnership; therefore the former must be a co-plaintiff in an ac-
tion for work and labor. The reason assigned is that he looked to
the profits as such. Probably the better reason is that both owned
the business.^

§ 36. no co-ownership of the business. — On the other

hand, if it clearly appears that the parties are not joint own-
ers of the business, or that one alone is principal arid the,
other receives his share as compensation, it is not a part-
nership. Numerous examples of this will be found below
in treating of profits as compensation, and the case of a sub-
partnership hereafter examined is a further instance.

Where H. & J. agreed to buy of D. all the whisky made by him,
and to allow him half the profits over the price paid, D. is not a

1 Whitney v. Ludington, 17 Wis. 3 Simpson v. Feltz, 1 McCord, Ch.
140. 213; 16 Am. Dec. 603.

a Gilbank V.Stephenson, 31 Wis. 593. ^Holt r. Kernodle, 4 Ired. L. 199.
Vol. I — 4 49

§ 36. NATURE AND FORMATION.

partner of H. & L., and hence not liable for barrels ordered by D.,
for the whisky. The half profits is only an additional price for the
whisky.'

Plaintiffs placed money in the hands of defendants, who were
partners in the purchase of prize claims, to be invested in them and
collected, and the net profits to be divided. This is not a partnership,
for the plaintiff was to be owner of the claims, but is an employment.''
Where B. agreed that on all claims against the United States,
which L. should procure to be put in B.'s hands, B. will pay him
twenty per cent, as fast as the claims were paid, there is no part-
nership, for there is no joint and mutual interest in the business,
and an action at law for L.'s share lies.'

Ole Bull and S., a music dealer, agreed to go America on a musical
tour, Ole Bull to play the violin at concerts to be arranged for by
S.; each to pay his own traveling expenses, and S. to receive one-
third the net proceeds. Ole Bull discharged S. and employed an-
other agent. S. can sUe him in assumpsit.*

A. agreed with two executors to cut logs from the decedent's
lands, run them to market, sell and divide profits after repayment
of money advanced for the purpose by one of the executors. This
is a contract of hire and A. has no leviable interest in the logs."
So a laborer paid under a written contract a share of the net profits
of a business, after deducting a sum as interest on the capital, and
having no other interest, is not a partner infer se.°

The owner of several farms agreed that three of his sons and a
son-in-law could work them for five years, he and they furnishing
what teams and tools they had, each to have his living out of the
products, and at the end of five years they to have one-half Ms per-
sonal property and half the product of the farms, and if they were
faithful he was to deed to them one-half the farms. This is not a
partnership inter se. Hence the representktive of the son-in-law,
who died shortly after, never having been able to work, is not en-
titled to an accounting. The owner evidently intended to keep
the title of the real and personal property during the term, and the
services were a condition precedent to the conveyances.'

Where three individuals, H., N. and G., contracted with the U. S.

1 Donley v. Hall, 5 Bush, 549. 5 Ford v. Smith, 37 Wis. 261. See

2 Prouty V. Swift, 51 N. Y. 591. Dwinel v. Stone, 30 Me. 384 (§ 37).
3Logie\\ Black, 24 W. Va. 1. 6 Atherton v. Tilton, 44 N. H. 452.
< Bull V. Schuberth, 3 Md. 38. " Chase v. Barrett, 4 Paige, 148.

50

TESTS OF A PARTNERSHIP. § 37.

R. Co., reciting that they contemplated assuming control of the
company if> satisfied that its business was profitable, and to deter-
mine this, agreeing to advance it money to enable it to fill such of
its orders for goods as these parties approved of, the company
agreeing to assign the orders to said parties, who were to collect,
reimburse themselves and retain a proportion of the profits, not
less than ten per cent, of the face of the order, this was ruled not
to be a partnership.'

A contract providing that P. shall send to S. hides for the pur-
pose of being tanned, S. not to work for any other party, and to
receive for his services a part of the profits, is not a partnership
infer sfl. The expressions shall send leather, shall not work for
any other party, shall be paid for services, all show that a partner-
ship was not intended.''

§ 37. Control or power of disposition as a test. — Where
from the relation of the parties it appears that there is no
right of control over the property or profits, or no power of
disposition in one of them, although he is to share the profits,
this is not consistent with a partnership, and hence the in-
tention not to become partners will be inferred.'

In Dwinel v. Stone,* A. owned logs and B. was to cut them on a
share of profits; this is not a partnership. The reason given by the
court, however, is open to very great dispute, namely, that there can
be no profit or loss separate from a joint interest in the capital;
here the logs which are the capital belonged wholly to A.

In Braley v. Goddard,' Gr., having the sole right to cut timber
from certain lands, made an agreement with B., whereby G. was to
furnish teams, money and supplies, and B. was to cut the timber
and take it to market, giving his whole time to the work, and the
profits were to be divided. If B. desired to sell his share of the
lumber he could do so, G. approving the price and the buyer, but

iCassidy a Hall, 97N. Y., 159. Shaw, 83 Mo. 76; Newberger v.

2 Stevens v. Faucet, 24 111. 483. See Fields, 23 Mo. App. 631 ; Conklia v.

the same partnership, Fawcett v. Os- Barton, 43 Barb. 435 ; Voorhees v.

born, 33 id. 411. Jones, 29 N. J. L. 370; Kellogg v.

s Dwinel v., Stone, 30 Me. 884 ; Bra- Griswold, 13 Vt. 391 ; Clark v. Smith,

ley V. Goddard, 49 id. 115; Tharp v. 53 id. 529; Woodward v. Cowing, 41

Marsh, 40 Miss. 158; Donnell v. Me. 9 {dictum).
Harshe, 67 Mo. 170 ; Musser v. Brink, < 30 Me. 3S4
68 Mo. 243; 80 id. 350; Ashby v. B49Me. 115.

51

§ 38. NATURE AND FORJIATION.

G. was entitled to take it at the price. This was held not to con-
stitute a partnership inter se, because B. did not have a partner's
right to dispose of the whole; hence B. can sue G. at law for his
services.

In Clark v. Smith,' C. owned a mill, farm and wood lot; F. agreed
with him to cut the timber, haul it to the mill and manufacture it
into chair backs or such other goods as C. directed, and carry on the
farm in connection with the mill; C. to furnish lumber, market the
goods and make collections. Taxes on the mill and farm, expenses
of hauling, freight and proceeds to be equally divided. It was
held that P. was not a partner, because he had no control of the
products, voice in the sale nor share or specific interest in the profits,
but merely a share in the proceeds without considering the raw
material as anything; and this was as compensation and not as
profits, and hence had no attachable interest in the product.

§ 38. And on the other hand, the existence of a power of
disposition in each has been held sufficient to constitute a
partnership, even though the gross receipts were, in the ab-
sence of such disposition, to be divided.^

In Moore v. Davis,' Davis, in Order to realize an estate as a build-
ing speculation, agreed with Moore, a practical land agent and
surveyor, to pay him one-half the profits, deducting purchase
money, interest on it, legal charges, auctioneer's charges, etc.,
Moore to allow him one-third of any fees he received from builders
and to bear half of any losses; Moore n«t to require vouchers from
or question payments or expenses made by Davis. The agreement
not to be "construed as a^ partnership between us, and only and
solely to relate to the above estate," and Moore not to charge Davis'
credit in respect thereof without his written consent. Davis having
discharged Moore for alleged neglect, Moore brought suit for an
account of profits, and it was held to be a partnership and not a
hiring. That Moore was to bring in one-third of his fees as a cir-
cumstance. The agreement to share profit and loss is " a strong
feature in favor of a partnership." The words negativing a part-
ship negative a general partnership, and, unless they admit a"
partnership ia the estate, would be unmeaning; and the clause

1 52 Vt. 529. 429 ; and see Whitney v. Ludington,

»Autrey v. Frieze, 59 Ala. 587; 17 Wis. 140.
Farmers' Ins. Co. v. Boss, 29 Oh. St. 3 11 Ch. D. 261.

63

TESTS OF A PARTNERSHIP. § 39.

forbidding Moore to charge Davis' credit suppose the existence of
a partnership, for he could not charge Davis' credit as an employee,
and are equivalent to stating that Davis, as managing partner, was
to have control. The fact that payments were contemplated out
of Moore's pocket would be most unusual, unless he were a partner.

The owner of a vessel and the captain agreed to pay part of the
expenses and divide the freight earned, with power in the captain
to invest the proceeds on joint account. It was held that the
owner's consent having been deemed necessary to investing th6
freight earned in merchandise, showed that he owned part of the
profits, and that it was, therefore, not the measure of an amount to
be paid for the hire of the schooner, but was profits proper and the
arrangement a partnership.'

An agreement was made by which H. is to look up and bid in
desirable lands at tax sales, and E. is to furnish the money. Both
were to control the subsequent disposition of them, and the profits
were to be divided equally after repaying E. out of the first proceeds
of sales whatever was due him on preceding purchases. Here is a
course of dealing as distinguished from particular purchases, a right
in H. to use his discretion in selecting and buying and equal power
in selling, and this is a partnership; both are agents of the firm.
That the land is bought in E.'s name is immaterial."

If there is otherwise a true partnership, however, as in a joint
adventure with participation of profit and loss, the fact that by the
contract one party is to have control of the product for sale will
not prevent it being such.'

§ 39. Contracts to manufacture in which each is princi-
pal.— There is no reason why a person owning or purchasing
raw material may not procure the services of another as an
independent contractor to manufacture it into goods, and de-
liver the products to the original owner for disposition, and
receive his compensation in a share of the avails, without
the parties being partners; although each incurs certain ex-
penses, and hence incidentally the terms profit and loss are
applicable, yet these are cases of compensation or of divis-
ion of gross receipts.*

1 Cox V. Delano, 3 Dev. L. 89. * Kilshaw v. Jukes, 3 Best & Smith,

2 Hunt V. Erikson, 57 Mich. 330. 847 (§ 20), is somewhat of this kind.
SMeador v. Hughes, 14 Bush, 652.

53

§ 39. NATURE AND FORMATION, ,

Thus, in Loomis v. Marshall," M. agreed to furnish a supply of
wool to F.'s factory for two years; F. to make it into cloth, clevotiug
the entire use of the factory thereto, and the net avails, less cost of
sale, was to be divided, and the cost of the warp in making satinets,
and the cost of insurance, was to be shared. M. was held not to be
a partner of F. and therefore not liable for w^rk and labor done in
the factory. The court distinguished between sharing profits and
avails; thus, if M. had purchased the wool at a very low price he
would have made more than F., and he might make and F. lose.

So where A. owned a marble quarry, and B. agreed to erect a
mill to manufacture it, A. to quarry and ship the marble to B.'s
mill, paying half the cost of transportation, B. to manufacture
the marble, sell it, collect the price and divide avails equally, this
was held not to be a partnership inter se; because there was no
community of profit and loss, for one might gain and the other lose
at the same time.''

Plaintiffs agreed to purchase a certain quantity of hides, and de-
liver them at H.'s tannery, and he was to tan them at his own
expense; after which plaintiffs were to sell them at their expense
and give H. one-half the proceeds over the original cost. This
was held not to constitute a partnership inter se, but is a mere
compensation to H., and H. has no ownership in the hides and is
liable if he convert them. And a subsequent agreement that each
could use such leather as he desired does not change the relation.'

In a similar case, A. was to furnish stock, B. to manufacture it
into cloth and deliver the cloth to A., and A. was to pay him a
certain price per j^ard and one-third of the net profits. They were
held not to be partners inter se, nor as to third persons; and, there-
fore, A. is not liable to one who sold dye-stuffs to B. for the pur-
pose of the manufacture, though he had given credit to both. The
court say that there is no difference between sharing gross and net
profits, and that B. had no specific lien or preference in payment
over other creditors of A.*

A. was to furnish wool, B. to make it into hat bodies without
charge for timfe or expenses, and A. to peddle or sell the same with-

1 12 Conn. 69 ; 30 Am. Deo. 596. See, (§ 29), where the agreement was to
also, Kellogg v. Griswold, 12 Vt. 291 ; share profit and loss,
also, Fawcett v. Osborn, 32 HI. 411, 2 Flint v. Marble Co. 53 Vt. 669.
and Stevens v. Faucet, 24 id. 483 3 Clement v. Hadlock, 13 N. H. 185.

4 Denny v. Cabot, 6 Met. 83.
54 ' -

TESTS OF A PARTNERSHIP. § 40.

out charge for time or expenses; each to pay half the expense of
extra' work, wool and wear of machinery, and the proceeds, less cost
of work, to be divided. This was held not to be a partnership; the
coul't saying that a joint interest in gross earnings, but not in loss
or net profits, is not a partnership.'

E. & K. were to furnish B. with money up to $li"),000 to enable
him to make horse rakes, B. to sell them and pay all proceeds to E.
.& K. until the advances were refunded. They are not partners,
and E. & K. are therefore not liable to one who furnished B. with
material, though he had charged them all.'

J. & Co. agreed to furnish materials, E. to manufacture them, T.
& Co. to sell and pay him the profits, less cost of material and ten
per cent, on the sales; held, they are not partners, and the articles
manufactured in A.'s shop are not liable to attachment by his cred-
itors, but are the property of J. & Co.^

B. was to furnish wool to R. for one year, R. to work it into
satinets, finding and paying for the warp himself; B. to have the
sole direction of selling, and each paying half the charges; B. to pay
R. forty per cent, of the sales of the satinets. B. is not a partner ot
R. and therefore not liable for the warps furnished to B. B.'s ob-
ject was to get his wool worked into cloth, and R. had no interest
in* the profits except as regulating his compensation. This case is
like Loomis v. Marshall, 12 Conn. 69, supra, except that there the
warps were at joint expense.*

A. agreed to furnish lumber for three years, B. to manufacture it
into doors and blinds, sell them, and divide profits after paying
freight and expenses; this is not a partnership inter se, but a mere
contract for manufacture, in which each party is a principal.'

§ 40. unless the profit is a joint fund.— But even here

an intention to regard the profits as a fund for all with a
lien upon its disposition will he evidence of a partnershipr.
Whether 'the contract is to be construed as providing such a
fund depends often upon the length of the chancellor's foot,
for the cases are not reconcilable.

Thus, where W., the owner of a zinc mine, agreed with M. S. &
Co. to furnish them two thousand tons of ore per year for three

1 Masou V. Potter, 26 Vt. 723. 3 Judson v. Adams, 8 Cush. 556.

2 Eshleman v. Harnish, 76 Pa. St. * Turner v. Bissell, 14 Pick. 192.
97, 6 HitchiDgs v. Ellis, 12 Gray, 449.

55

§ 40. NATURE AND FORMATION.

years at $10 per ton, they to provide suitable building and machin-
ery, to be paid for out of the profits, and to convert the ore into
paints, the profits to be divided, this was held to be a partnership
inter se.'

And so, per contra, where G. furnished a mill and M. the corn to
be ground, M. to have a certain amount of meal on each car load
ground, in addition to the price of the corn he furnished, out of the
profits, G. was held not to be a partner with M. as to third per-
sons who fcold the corn to M., because he had no interest in the
profits while they were accruing, and the contract is one lor com-
pensation only.^

F. Bros., wholesale dry goods dealers, agreed to furnish to M. all
the goods and raw material necessary to make clothing to enable
him to carry on a retail business in ready-made clothing, M. to sup-
ply all other goods necessary for the business and give all his time
to it, F. Bros, to be .allowed in settlement the regular wholesale
prices for what they furnished, and M. to receive the net profits
beyond that, he paying all expenses. F. Bros, purchased the
building whereon the business was, and that was charged in the
account and paid by M. in the settlements; afterwards F. Bros,
stopped the business by taking entire and exclusive possession of
the whole concern. In a suit by M. against F. Bros, they were
held to be partners because there was a community of interest in
the profits and losses, although the arrangement seemed designed
to escape being partners.'

Where L. hired a shop wherein the same business had formerly
been carried on, and bought a stock of goods in his own name and
permitted W. to carry on business with them, W. to pay all ex-
penses and return to L. the value of all he put in and half of all he
made over his own expenses, L. to have the right to take possession
at any time to secure himself, L. is liable as a partner to a third
person who sold goods to W. to carry on the business in reliance
on a belief that L. was' a partner. The court bases the decision on
the doctrine that L. has an interest in the profits as profits, and a
lien on the whole as profits for his share. This doctrine would
make them true partners, that is, inter se*

St. Gc. advanced money to pay land, D. to make all sales, and

1 Wadsworth v. Manning, 4 Md. 59. * Pratt v. Langdon, 97 Mass. 97; 13

2 Kelly V. Gaines, 24 Mo. App. 506. Allen, 546.
• Meyers v. Field, 37 Mo. 434.

66

TESTS OF A PARTNERSHIP. § 42.

after return of the purchase money and paying expenses and costs,
the net profits were to be divided. This contract is consistent with
' either a partnership or an employment. The referee haying found
it to he the latter, the court afSrmed the finding.'

§ 41. Seryices in procuring sales. — It frequently happens
that the owner of land or goods, desiring to get them into
market and sold, will contract to pay one who agrees to do
this a certain per cent, of the net proceeds. 'These contracts
are construed as employments and not as partnerships.

Thus, where the owner of hay procured defendant to take it to
market, sell it at not less than a certain price, he to receive a cer-
tain compensation and half the excess, this is not a partnership
inter se.^

Two persons, having a contract to build a road, agreed with M.
that if he would advance a certain sum and help build the road they
would let him have a share in the profits proportionate to the help
he afforded, one-half to be taken from each contractor's share. This
is a mode of compensation and not a partnership, and M. can sue in
assumpsit for the amount due him.'

So if the owner of land warrants agrees with a person tljat the
latter shall enter, locate and survey them for a sha,re of the land or
profit, this is not a partnership.*

D. had N. buy cattle in his name, N. to slaughter them and sell
the meat, and pay D. out of the proceeds the cost and one-fourth of
a cent per pound, and N. to have the balance. Held not a partner-
ship; and whether the cattle are subject to the claims of D.'s cred-
itors depends on whether the money was loaned by D. to N., or N.
was employed as D.'s agent, which is a question for the jury.'

A contractor to carry the mails agreed with a subcontractor
that the latter should perform half the service and be entitled to
half the profits. This was held to be a partnership.'

§ 43. Arrangement to collect a debt. — Where the object of
an agreement is to collect a debt due from- one party to an-
other, this fact will necessarily go far to show that no inten-

1 Darrow v. St. George, 8 Colorado, and Ellsworth v. Pomeroy, 36 Ind.
593. 158.

2 Morrison v. Cole, 30 Mich. 103. 6 Dale v. Pierce, 85 Pa. 474

» Muzzy V. Whitney, 10 Johns. 336. « Wilkinson v. Jett, 7 Leigh (Va.),
* Mc Arthur u. Ladd, 5 Oh, 514; 115; 30 Am. Dec. 493.

57

§ 42. NATURE AND FORMATION.

tion to become partners existed. Their relation becomes
analogous to that of employer and employee, or lender and
borrower, or landlord and tenant, by which one is to bear
all the loss, and it is not that of joint principals and agents.'

Thus, mill-owners indebted to J., in order to pay the debt
made an agreement with him whereby J. was to furnish ■v^^heat.
The mill-owners were to make it into flour, and all flour, except a
part sold at the mill in order to carry it on, was to be sold to pay
J. the cost of the wheat and two and one-half per cent., and the
balance to liquidate the debt, and the surplus to the mill-owners.
This is not a partnership, but a compensation for the use of the
mill, and a levy of execution upon the wheat by creditors of the
mill-owners is null as against J.''

D. owned a mill and was indebted to B. B. agreed to assist in
running the mill, furnish the stock and support D.'s family; D. and
his sons to operate the mill, B. to sell the lumber, and after deduct-
ing the meaus furnished by him and his compensation, tq apply
the surplus to the debt. This was held not to be a partnership
inter se."

Parties to whom B. was indebted wei-e to furnish him with funds
to buy lumber, ship it to them and pay him a compensation for his
services, and apply the rest of the profits to the debt. This is not
a partnership, for there is no community of prjofit and loss, aud B.'s
creditors cannot levy upon the lumber.*

So where by the articles of partnership the share of profits of one
partner was to be paid to his creditor, who had sold him the goods
constituting his contribution to the business, this does not make
the creditor a partner and he can sue the firm at law.'

If, however, the creditors agree to advance money to continue
the debtor's business for their own profit and to bear losses equally,
they are partners as to each other." And where one creditor, with
the concurrence of another, obtains from their common debtor all

1 Cox V. Hickman, 8 H. L. 268 lake, 23 Minn. 883, where one part-
{supra, ^ 19). ner agreed to pay out of profits the

2 Johnson v. Miller, 16 Oh. 431. deht owed by a third person to the
8 Dils «. Bridge, 23 W. Va. 20. firm. Such person is not made a
* Clark V. McKellar, 13 Up. Can. C. partner as sharing profits.

P. 562. ^ Wills V. Simmonds, 51 How. Pr.

5 Drake v. Ramey, 3 Rich. L. (S. 48 ; s. c. 8 Hun, 189.
Ca.) 37 ; and see Delaney v. Timber-

TESTS OF A PARTNERSHIP.

§43.

his stock of goods by making a payment thereon, for the purpose
of selling again to reimburse themselves their debt, a loss by decline
of prices must be shared by both. This, however, should not be
called' a partnership between the creditors.^ '

§ 43. Profits as compensation for services. — A person
who "is to receive a share of the profits as compensation
for services as servant, clerk, manager, broker, or any
other agent, is not a partner. The only difference between
him and any other employee is that his salaiy or wages
is contingent. His connection with the firm is inconsist-
ent with a partnership, for it precludes the rights, duties,
powers and liabilities of that relation. In most of the
cases cited in the notes, the coritract of the parties ex-
pressly stated that the share of profits was for services; in
others that conclusion was inferred. But whether expressed
or inferred, it is clear that the parties are not partners.''

1 Stettauer v. Carney, 20 Kan. 474.

SRegina v. McDonald, 7 Jur. N. S.
1127; 31 L. J. M. C. 67; Geddes v.
WaUace, 2 Bligh, 370 ; Pott v. Eyton,
3 C. B. 32; Eawlinson v. Clark, 15 M.
& W. 293 ; Stocker v. Brockelbank, 3
Mac. & G. 350 ; Ross v. Parkyns, L.
R. 30 Eq. 381 ; B^rthold v. Goldsmith,
24 How. 536 ; Seymour v. Freer, 8
Wall. 302, 315; Re Blumenthal, 18
Bankr. Reg. 555 ; Hazard v. Hazard,
1 Story, 371 ; Einstein v. Gourdin, 4
Wood's C. C. 415; Brown v. Hicks,

24 Fed, Rep. 811 ; Shropshire u. Shep-
perd, 3 Ala. 733 r Hodges v. Dawes,
6 Ala. 315; Moore v. Smith, 19 Ala.
774; Dillard v. Scruggs, 36 Ala. 670;
Randle v. State, 49 id. 14; Tayloe v.
Bush, 75 id. 433; Olmstead v. Hill,
3 Ark. 346; Christian v. Crocker,

25 Ark. 337; Hanna v. Flint, 14 Cal.
73; Darrow v. St. George, 8 Colo-
rado, 5!)3; Pond v. Cummins, 50
Conn. 373 ; Sankey v. Columbus Iron
Works, 44 Ga. 228 ; Stevens v. Fau-
cet, 34 111. 483 ; Porter v. Ewing, 34

Id. 617; Fawcett v. Osborn, 33 id.
411 ; Burton v. Goodspeed, 69 id. 337;
Macy V. Combs, 15 Ind. 469; Ells-
worth V. Pomeroy, 36 id. 158; Em-
mons V. Newman, 38 id. 372 ; Keiser
V. State, 58 id. 379; Heshion v. Ju-
lian, 83 Ind. 576; Price v. Alexan-
der, 3 G. Greene (Iowa), 437; 52
Am. Dec. 536 ; Reed v. Murphy, 3 G.
Greene (Iowa), 574; Ruddiok u Otis,
33 Iowa, 403; Holbrook v. Oberne, 56
Iowa, 334; Shepard v. Pratt, 16 Kan.
309; Heran v. Hall, 1 B. Mon. 159;
Bulloc V. Pailhos, 30 Mart. 172 ; Cline
V. Caldwell, 4 La. 137; Taylor v.
Sotolinger, 6 La. Ann. 154; Hallet v.
Desban, 14 id. 529 ; St. Victor v. Dau-
bert, 9 La. 314; Miller v. Chandler,
29 La. Ann. 88; ChaflEraix v. Price,
id. 176; Maunsell v. Willett, 36 id.
323; Halliday v. Bridewell, 36 id.
238; Dwinel v. Stone, 30 Me. 384;
Weems v. Stalliugs, 3 Har. & J. 365 ;
Kerr v. Potter, 6 Gill, 404; Bull v.
Schuberth, 2 Md. 38; Benson v.
Ketchum, 14 id. 331; Crawford v.
59

§43.

NATURE AND FORMATION.

Nor are such persons liable as partners to third parties by-
reason of sharing the profits of the business.'

Austin, 34 id. 49; Sangston v. Hack,
53 id. 173, 193-3; Reddington v. Lan-
ahan, 59 id. 439 ; Whiting v. Leakin,
66 id. 355; Blanchard v. Coolidge, 23
Pick. 151 ; Judson v. Adams, 8 Gush.
556 ; Baxter v. Rodman, 3 Pick. 435 ;
Bradley v. Wliite, 10 Met. 303; 43
Am. Deo. 435 ; Denny v. Cabot, 6
Met. 83 ; Buck v. Dowley, 16 Gray,
555; Holmes v. Old Colony R. R, 6
Gray, 58, 60; Emmons v. Westfleld
Bank, 97 Mass. 330 ; Haskins v. War-
ren, 115 id. 514; Commonwealth v.
Bennett, 118 id. 443; Partridge v.
Kingman, 130 id. 476: Morrison v.
Cole, 30 Mich. 103 ; Wiggins v. Gra-
ham, 51 Mo. 17; State v. Donnelly,

9 Mo. App. 519 ; Gill v. Ferris, 83 Mo.
156, 167; Mason v. Hackett, 4 Nev.
430 ; Clement v. Hadlock, 13 N. H.
185; Newman v. Bean, 21 id. 93;
Atherton v. Tilton, 44 id. 453; Nut-
ting v. Colt, If N. J. Eq. 539; Har-
grave u Conroy, 19 id. 381; McMa-
hon V. O'Donnell, 20 id. 306 ; Smith
V. Perry, 89 N. J. L. 74 ; Voorhees v.
Jones, 29 id. 370 ; Muzzy v. Whitney,

10 Johns. 336 ; Vanderburgh v. Hull,
20 Wend. 70; Chase v. Barrett, 4
Paige, 148; Burckle v. Eckart, 1
Den. 337(afl'd 3 Den. 279; 3 N. Y.
133); Ross v. Drinker, 3 Hall, 415;
Mohawk R. R. v. Niles, 3 Hill, 163;
Hodgman v. Smith,' 13 Barb. 303;
Brockway v. Burtrap, 16 id. 309 (12

'id. 347); Clark v. Gilbert, 33 id. 576;
Conklin v. Barton, 43 id. 435 ; Lamb
V. Grover, 47 id. 317 ; Merwin v. Play-
ford, 3 Robt. 703; Strong v. Place, 4
id. 385 (51 N. Y. 627) ; Leonard v. New
, York Tel. Co. 41 N. Y. 544; Lewis v.
' Greider, 51 id. 231 (aff. 49 Barb. 605) ;
Osbrey v. Reimer, 51 N. Y. 630 (aff.
49 Barb. 365); Prouty v, Swift, 51 N.

Y. 594; Smith v. Bodine, 74 id. 30;
Moore v. Huntington, 7 Hun, 435;
Butler V. Finck, 31 id. 310; Beudel
V. Hettrick, 45 How. Pr. 198 ; 3 Jones
& Sp. 405; Mc Arthur v. Ladd, 5 Oh.
514 : Johnson v. Miller, 16 id. 431 ;
Ditsche v. Becker, 6 Phila. 176;
Blight V. Ewing, 1 Pittsb. 275 ; Miller
V. Bartlet, 15 S. & R. 137 ; Raiguel's
Appeal, 80 Pa. St. 334; Dale v. Pierce,
85 id. 474; Potter v. Moses, 1 R. I.
480; Bentley i>. Harris, 10 id. 434;
Simpson v. Feltz, 1 McCord, Ch. 213;
Lowryu. Brooks, 2 McCord, L. 421;
Bartlett v. Jones, 3 Strob. L. 471 (47
Am. Dec. 606); No]-ment v. Hull, 1
Humph. 320 ; Bell v. Hare, 18 Heisk,
615; Whit worth v. Patterson, 6 Lea,
119, 134; Goodeu. McCartney, lOTex,
193 ; Bradshaw v. Apperson, 86 id. 133:
Cothran v. Marmaduke, 60 id. 370
Grabenheimer v. Rindskofl, 64 id
49; Board man v. Keeler, 2. Vt. 65
Ambler v. Bradley, 6 id. 119; Kel-
logg V. Griswold, 13 id. 891
Stearns v. Haven, 16 id. 87; Mason
V. Potter, 36 id. 782 ; Bruce v. Has-
tings, 41 id. 380, 384 ; Clark v. Smith,
58 id. 539 ; Hawkins v. Mclntire, 45
id. 496; Wilkinson v. Jett, 7 Leigh
(Va.), 115; 30 Am. Dec. 493; Dils v.
Bridge, 33 W. Va. 80; Sodiker v. Ap-
plegate, 34 id. 411 ; 49 Am. Rep. 353;
Ford V. Smith, 37 Wis. 361 ; Nicholaus
V. Thielges, 50 id. 491; Northern
R'y Co. V. Patton, 15 Up. Can. C. P.
333.

1 Hazard v. Hazard, 1 Story, 371;
Shaw ti. Gait, 16 Irish Com. L. 357;
Berthold v. Goldsmith, 34 How. 536;
Re Francis, 2 Sawy. 386; 7 Bank.
Reg. 359; Marsh v. Dawes, 3 Biss.
351 ; Oppenheimer v. Clemmons, 18
Fed. Rep. 886; Hodges v. Dawes, 6

60

TESTS OF A PARTNERSHIP.

§45.

§ 44. Contrary cases. — There are, however, a feW decisions
holding that one who participates in the profits, though as com-
pensation merely, is liable as a partner to third persons."

§ 45. Profits as rent. — On the same principles as the fore-
going, an indefljiite compensation out of profits for the use of
property, real or personal, and dependent on the success of
the business, is in lieu of rent and does not constitute the
owner a partner inter se? Nor liable as partner to third

Ala. S15; Loomis v. Marshall, 13
Conn. 69; Parker v. Fergus, 43 111.
437; Burton v. Goodspeed, 69 id. 237;
Macy V. Combs, 15 Ind. 469; Shepard
V. Pratt, 16 Kan. 209; Hallet v. Des-
ban, 14 La. An. 529; Chaffraix v.
Lafitte. 80 La. An. 631; Turner v.
Bissell, 14 Pick. 192; Blanchard v.
Coolidge, 22 id. 151; Denny v. Cabot,
6 Met. 82; Bradley v. White, 10 id.
803; 43 Am. Dec. 435; Meserve v.
Andrews, 104 Mass. 860; Partridge v.
Kingman, 130 id. 476;'Hall v. Edson,
40 Mich. 651; Wiggins v. Graham,-
51 Mo. 17, 20; Voorhees v. Jones, 29
N. J. Eq. 270; Burckle v. Eckhart, 1
Den. 337 (aff'd, 3 N. Y. 132) ; Fitch
V. Hall, 25 Barb. 13; Hotchkiss v.
English, 4 Hun. 369 ; Butler v. Finch,
21 id. 210; Wright v. Delaware &
Hudson Canal Co. 40 id. 343 ; Miller
V. Bartlet, 15 S. & R., 137; Dunham
V. Rogers, 1 Barr, 255; Edwards v.
Tracy, 62 Pa. St. 374; Polk v. Bu-
chanan, 5 Sneed, 731 ; Goode v.
McCartney, 10 Tex. 193; Buzard v.
First Nat'l B'k (Tex. 1886), 2 S. W.
Rep. 54; Bowman v. Bailey, 10 Vt.
170.

'^ Ex parte Rowlandson, 1 Rose, 92;
Ex parte Bighj, 1 Deac. 341; With-
ington V. Herring, 3 Moo. & P. 30;
Miller v. Hughes, 1 A. K. Mar. (Ky.)
181; Taylor v. Terme, 3 Har. & J.
605 ; Rowland v. Long, 45 Md. 439 ;
Strader v. White, 2 Neb. 348, where

the arrangement was a device ; Mot-
ley V. Jones, 3 Ired. Eq. 144 ; Pur-
viance v. McClintee, 6 S. & R. 259;
Ditsche V. Becker, 6 Phila. 176.

1 omit overruled American cases in
states where the principles of Cox
V. Heckman have since been adopted.

2 Wish V. Small, 1 Camp. 331 ; Lyon
V. Knowles, 8 Best & Sm. 556;
McDonnell v. Battle House Co. 67
Ala. 90 ; 42 Am. Rep. 99 ; Quacken-
bush V. Sawyer, 54 Cal. 439; Beck-
■with V. Talbot, 2 Colorado, 639;
Parker v. Fergus, 43 111. 437; Smith
V. Vanderburg, 46 111. 34; Keiser v.
State, 58 Ind. 379 ; Reed v. Murphy,

2 G. Greene (Iowa), 574; Price' v.
Alexander, 2 id. 427; 53 Am. Dec,
526 ; Thompson v. Snow, 4 Me. 264 ;
16 Am. Dec. 263 ; Bridges v. Sprague,
57 id. 543; Reynolds v. Tappan, 15
Mass. 370 ; Cutler v. Winsor, 6 Pick.
335; 17 Am. Dec. 385; Holmes v.
Old Colony R. R. 5 Gray, 58 ; Beecher
V. Bush, 45 Mich. 188; 40 Am. Rep.
465 ; Thayer v. Augustine, 55 id. 187 ;
Ward V. Bodeman, 1 Mo. App. 372,
281; Campbell v. Dent, 54 Mo. 835;
Kellogg Newspaper Co. v. Farrell,
88 id. 594 ; Perrine v. Hankisson, 11
N. J. L. 181; Heimstreet v. How-
land, 5 Den. 68 ; Pinckney v. Keyler,
4 E. D. Smith, 469 ; Johnson v. Mil-
ler, 16 Oh. 431 ; Dunham v. Rogers,
1 Barr, 255; Irwin v. Bidwell, 73 Pa.
St. 244, 251 ; Brown v. Jaquette, 94

61

§ iO. NATURE AND FORMATION.

persons, because of sharing the profits, for exactly the same
reasons that protect an employee so paid.^

§ 46. illustrations. — F. sued P.^nd X. as partners in an

opera house for work done in printing billa. P. denied he was
partner. P. owned the building, and by a contract with X. leased
part of it to X. for an opera house, P. to act as treasurer at a sal-
ary, and for the use of the building was to receive daily one-half of
the proceeds, deducting expenses and salary. P. is not liable; he
has no control in the management, furnishes none of the means,
and shares none of the losses."

The defendant leased his building to one who had a license to
sell liquors, the lessee to furnish the stock and employ the defend-
ant as his clerk; defendant to conduct the business in the licensee's
name, and receive all the profits for services and rent, except a cer-
tain sum per diem to the licensee. It was held that the defendant \vas
not a partner but an agent, and therefore protected by the license.
This case involves their relations inter se rather than as to third
persons, since the third persons referred to in this connection are
only creditors of the business.*

A railroad company leased to an individual a house for a certain
sum and " half the net profits arising from keeping said house as a
hotel," keeping an account open for their inspection, the lessee hav-
ing a free pass over the railroad for supplies. Held, the railroad com-

id. 113; 39 Am. Rep. 770; England 188;' 40 Am. Rep. 465 (§ 33); Ward

u. England, 1 Baxter, 108 ; Tobias i;.. v. Bodeman, 1 Mo. App. 372,281;

Blin, 21 Vt. 544; Felton v. Deall, 22 Campbell v. Dent, 54 Mo. 325; Kel-

id. 170; Bowyer v. Anderson, 2 logg Newspaper Co. v. Farrell, 88

Leigh (Va.), 550; Chaplineu Conant, Mo. 594 (§ 33); Heimstreet v. How-

3 W. Va. 507; Haydon v. Crawford, land, 5 Den. 68; Dunham v. Rogers,

3Up. Can. Q. B. (oldser.)583;Haw]ey l Barr, 255; England 'v. England, 1

V. Dixon, 7 Up. Can. Q. B. 218; Great Baxter, 108; Felton v. Deall, 33 Vt.

Western R'y v. Preston & Berlin 170; Bowyer v. Anderson, 3 Leigh

R'y, 17 id. 477. (Va.), 550; Chapline v. Conant, 3 W.

1 McDonnell v. Battle House Co., Va. 507 (§ 23). Contra, that a lia-

67 Ala. 90 ; 42 Am. Rep. 99 ; Parker Ijility as partners to third persons is

V. Fergus, 43 III. 437 ; Smith v. Van- thereby created. Buckner v. Lee,

derburg, 46 111. 84 ; Bridges v. 8 Ga. 385 ; Dalton City Co. v. Dalton

Sprague, 57 Me. *543; Reynolds v. Mfg. Co. 33 id. 243; Dalton City Co.

Toppan, 15 Mass. 370; Cutler v. i-, Hawes, 37 id. 115.
Winsor, 6 Pick. 335 ; 17 Am. Dec. 2 Parker v. Fergus, 43 111. 437.
885; Holmes v. Old Colony R. R. 5 SKeiseru. State, 58 Ind. 379.
Gray, 58 ; Beiecher v. Bush, 45 Mich.

63

TESTS OF A PAETNERSHIP. § 47.

pany does not become a partner thereby even as to tliird persons,
for the lessee pays all the bills, owns the supplies bought and the
money taken in.'

The owner of a ferry leased it to F. for two years for f 1,000 cash
paid, and if the net profits do not produce to F. $2,000 in the two
years, he to have the right to hold over until he gets $2,000, and if
over $2,000 is produced in two years the surplus to, be divided. This
was held not a partnership, and the lessor therefore not liable for
a loss by F.'s negligence in operating the ferry.''

§ 47. Profits as interest on loans. — The English courts
prior to Cox v. Hickman, while recognizing that the payment
of salary or wages or compensation for the use of property
in an amount measured by a proportion of profits did not
create a partnership, did not extend the principle to com-
pensation for the loan of money.' It would seem that there
• is no difference between paying for the use of monej'' at a
rate determinable by results and the use of services or, prop-
erty, yet the fact that such compensatiion produced in the
first cases an interest in excess of the usury laws, seems to
to have been the cause of the disallowance of it. This is
altered now in England, not onlj by the later decisions,*

1 Holmes v. Old Colony E. R. 5 Del. Ch. 198 ; Slade v. Paschal, 67 Ga.

Gray, 58. 541; Niehofif v. Dudley, 40 111. 406;

^Bowyer v. Anderson, 2 Leigh Smith v. Vanderburg, 46 id. 34;

(Va.)," 550. Lintner v. Millikin, 47 id. 178 ; Adams

sGrace v. Smith, 2 Wm. Bl. 993; u. Funk, 53 id. 219;Hefneru Palmer,

Gilpin V. Enderbey, 5 B. & Aid. 934; 67 id. 161; Smith v. Knight, 71 id.

Fereday V. Hordern, Jac. 144; Blox- 148; 23 Am: Rep. 94; Williauis v.

ham V. Pell, 3 Wm. Blacks. 999. Soutter, 7 Iowa, 435 ; Bailey uClai k,

^ Pennsylvania also has such a stat- 6 Pick. 872 ; Gallop v. Newman, 7 id.
nte. Moore u. Walton, 9 Bankr. Reg. 283; Wall v. Balconi, 9 Gray. fi2;
403; Re Francis, 3 Sawy. 286; 7 Buck u Dowlej', 16 id. 555; R'c.- «.
Bankr. Reg. 359 ; JJe Ward (U. S. D. Austin, 17 Mass. 197; Emmons u
C. Tenn. 1879), 8 Reporter, 136; Westfleld Bank, 97 id. 230; Par.lien
Swann v. Sanborn, 4 Woods", 0. C. ■«. Anderson, 5 Montana, 438; Muzzy
625; MeeKan v. Valentine, 29 Fed. v. Whitney, 10 Johns. 236 ; Osbrey v.
Rep. 376; Smiths Garth, 33 Ala. 368; Reimer, 49 Barb. 265; Manhattan
Culley V. Edwards, 44 id. 423; Le Brass Mfg. Co. v. Sears, 1 Sweeny,
Levre v. Castagnio, 5 Colorado, 564; 426 ; Salter v. Ham, 31 N. Y. 321 ; Ar-
Parker v. Canfield, 37 Conn. 250; 9 nold u Angell, 63 id. 508; Richard-
Am. Rep. 317 ; Piunkett v. Dillon, 4 son v. Hughitt, 76 id. 55 ; Eager v.

63 '

§48.

NATURE AND FORMATION.

but by a statute called Bovill's act. Nor are they partners
as to third persons.'

§ 48. illustrations. — M. furnished P. with money to carry

on business, and as compensation P. was to let M. have goods at cost
prices, nothing being said as to interest or profits and losses. This
was held not to constitute them partners as to third persons, but
to be a mere loan.'

N. & Co. rented part of their business to C. & Co., and paid part
of the expense of keeping their ofEice and agreed to loan them
not to exceed $5,000, and to receive one-third of their profits weekly
as interest, with a clause in the contract that they were not part-

Crawford, id. 97; Curry v. Fowler, 87
id. 33 ; 41 Am. Rep. 343 (aff'g, 14 J.
& Sp. 195) ; Cassidy v. Hall, 97 N. Y.
159; Harvey v. Childs, 28 Ohio St.
319; 23 Am. Rep. 387; Lord v. Proc-
tor, 7 Phila. 630; Irwin v. Bidwell,
73 Pa. St. 344; Hart v. Kelley, 83 id.
286; Eshleman v. Harnish, 76 id. 97;
Boston, etc. Smelting Co. v. Smith,
13 R. I. 27; 43 Am. Rep. 3; Pollr v.
Buchanan, 5 Sneed (Teun. ), 721 ;
Cooper V. Tappan, 9 Wis. 361 ; Mun-
sonr.Hall,10Grant'sCh.(U"p.Can.)61.
1 Bullen V. Sharp, L. R. 1 C. P. 88 ;
Ex parte Tennant, 6 Ch. D. 303;
Mollwo, March & Co. v. Court of
Wards, L. R. 4 P. C. 419; Dean v.
Harris, 33 L. T. N. S. 639 ; Kelly v.
Sootto, 49 L. J. Ch. 883 ; 43 L. T. N. S.
827 ; Cully v. Edwards, 44 Ark. 433,
this was inter se, but the principles
laid down jnake it applicable to third
persons by abolishing the distinction
between partnerships inter se and as
to third persons. Le Levre v. Cas-
tagnio, 5 Colorado, 564. In Smith v.
Knight, 71 111. 148 (33 Am. Rep. 94),
it was held that a loan on interest
and share of profits does not consti-
tute a partnership as to third per-
sons, and a dictum to the same effect
occurs in Hefner v. Palmer, 67 111.
161. Williams v. Soutter, 7 Iowa,

435; Farchen v. Anderson, 5 Mon-
tana, 438; Richardson v. Hughitt, 76
N. Y. 55 (33 Am. Rep. 367); Eager «.

Crawford, 76 id. 97; Curry u Fowler,
87 id. 33 (41 Am. Rep. 348), affirming ■
14 Jones & Sp. 195 ; Cassidy v. Hall,
97 id. 159; Magovern v. Robertson,
40 Hun, 166 ; Harvey v. Childs, 28
Oh. St. 319; 23 Am. Rep. 887; Bos-
ton, etc. Smelting Co. v. Smith, 13
R. I. 37; 43 Am. Rep. 3; PolJi v. Bu-
chanan, 5 Soeed, 731. — (The earlier
New York cases to the contrary are
the following, holding such lender to
be a partner as to third persons:
Cushman v. Bailey, 1 Hill, 536;
Everett v. Coe, 5 Den, 180; Manhat-
tan Co. V. Sears, 45 N. Y. 797; Haas
V. Roat, 16 Hun, 536, aff'd 26 id. 633;
Leggett V. Hyde, 58 N. Y. 273; 17
Am. Rep. 344, aff'g 1 N. Y. Supreme
Ct. 418. These New York cases must
be deemed overruled by the later
ones given above in so far as incon-
sistent.)— Bailey v. Clark, 6 Pick. 373
(dictum.); Pettee v. Appleton, 114
Mass. 114; Sheridan v. Medara, ION.
J. Eq. 469 ; Pierson v. Steijumeyer, 4
Rich. L. 309 ; Cothran v. Marmaduke,
60 Tex. 370, 373 ; but query, repudi-
ated in Buzard v. First Nat'l Bank, 3
S. W. Rep., 54, in full above.
2Slade V. Paschal, 67 Ga. 541.
64

TESTS OF A PARTNERSHIP. . § 48.

ners; and tlie execution of this agreement was held not to make
them partners, and therefore not liable on a note of C. & Co.'

A. B. of one part, and C., D., E. and F. of the other, made a
contract whereby A. B. sold to C. the exclusive right to manufact-
ure a patented .article, and also the stock and fixtures then on hand
used for the purpose, in consideration that thirty-seven and one-
half per cent, of the net profits be paid them. D., E. and F.
agreed, in order that profits might be made, to put in $15,000 as
capital; to employ C. as superintendent, he to be paid a certain
compensation out of the business for superintendence; D., E. and
P. also covenant that A. and B. shall have thirty-seven and one-
half per cent, of the profits after deducting expenses and twenty
per cent, to them on their capital. In an action against them all
on a note made by C, D. claiming that he was not a partner, it
was held that A." and B. are mere creditors, as being vendors and
having no community of interest; that D., E. and P. were lenders;
they had not furnished the capital on joint account and had no
share of the profits.'

E. and K. agreed to furnish B. with money not exceeding
$10,000, to enable him to make horse-rakes, B. to sell them and all
proceeds to be paid to E. and K. until the advances were refunded.
This does not make them partners as to third persons, for B. was to
hand over the proceeds only in payment. That the plaintiff, who
had been furnishing the material to B., on seeing the agreement
thereafter charged material to B. & Co., supposing E. and K. had
become partners, makes no difference.'

B. and P., on September 2, 1867, loaned T. 110,000, T. agreeing
to pay.it back on January 1, 1870, and to pay them thirty cents
per barrel on oil refined by him, and to keep accurate accounts, and
to open new books, and not to sell or incumber his refinery, nor
pursue a speculative business, nor to agree to sell refined oil with-
out having first secured the crude material from which to make it,
and to keep his refinery insured. B. and P. were held not to be
liable as partners to T.'s creditors, for B. and P. had no lien and
must come in -prorata with ofher creditors, and the fact that they
had a mortgage from T. so as to get a priority, and that the loan
was usurious, does not change their relation from creditors to part-
ners. And so, although had the plaintiff known of the agreement

1 Niehoflf V. Dudley, 40 111. 406. ' Eshleman 'v. Harnish, 76 Pa. St. 97.

2 Smith V. Vanderburg, 46 111. 34. See, also, Hart v. Kelley, 83 Pa. St. 386,

Vol. I — 5 65

§60.

NATURE AND FORMATION.

and trusted them as partners on the faith of it, it mio;ht have con-
stituted them such by holdinpf out.'

§ 49. What is a loan. — The fact, however, that the in-
terest expected or received is disproportionate and the con-
tract usurious will not affect its construction.*

To constitute a loan, the money advanced must be return-
able in any event independently of the success or non-
success of the business or the making of profits. If the
repayment is contingent upon profits it is not a loan, for it
is then made, not upon the personal responsibility of the
borrower, but upon the security of the business, and the
above principles do not apply.'

§50. when a device. — And if it appears that the

transaction is a device to obtain the benefits of a partnership
without its responsibilities, as where the powers are incon-
sistent with the lending of money, the contract is one of
partnership, whatever the parties may call it.*

I Irwin V. Bidwell, 73 Pa. St. 244.

zpiunkett v. Dillon, 4 Del. Ch. 198;
Richardson v. Hughitt, 76 N. Y. 55 ;
3,2 Am. Rep. 267 ; Gurry v. Fowler,
87 id. 33 ; 41 Am. Rep. 343 (aff. 14 J. &
Sp. 195); Irwin v. Bidwell, 72 Pa.
St. 244. Contra, Hargrave v. Conroy,
19 N. J. Eq. 381, 283 ; Oppenheimer
V. Clemmons, 18 Fed. Rep. 886. See
Brigham v. Dana, 39 Vt. 1, 8; Re
Francis, 2 Sawy. 386 ; 7 Bankr. Reg.
359 (§23); Parker v. Canfield, 37
Conn. 350 (9 Aili. Rep. 317); in this
case O. and H. each agreed to put
$5,000 into Andrews' business and
receive each one-sixth of the net
profits, the business to be in the
name and under the sole manage-
ment of Andrews. After the money
had been advanced and the business
conducted for a time, C. and H.
learned that they were partners.
Thereupon a writing was drawn up
declaring the money to be a loan to
Andrews and was to be paid back in

three years, and six per cent, interest
was to be paid annually, and in con-
sideration of the trouble and expense
of getting the money, C. and H.
were each to have a sum equal to
one-sixth of the profits, but only as
compensation. It was held that the
one-sixth of the profits to each was
for services already performed, and
was wholly disproportionate to the
insignificant trouble of getting the
loan ; that the arrangement, was a
mere sham, and C. and H. were liable
as partners.

This decision was doubted in Rich-
ardson V. Hughitt, 76 N. Y. 55 ; 33
Am. Rep. 267.

'^Ex parte Delhasse, 7 Ch. D. 511 ;
Pcioley V. Driver, 5 Ch. D. 458; Har-
ris V. Hillegass, 54 Cal. 463; Wood
V. Vallette, 7 Oh. St. 173; Brigham
V. Dana, 29 Vt. 1, 7; R^senfeld v.
Haight, 53 Wis, 260; 40 Am. Rep.
770.

*Kx parte Mills, 8 Ch. D, 569,

. 66

TESTS OF A PARTNERSHIP. § 50.

The firm of Charles Barrett & Co. was formed for a term of four-
teen years between B. and H., who were to contribute certain
shares of capital and carry on the business; the rest of the capital
was to be contributed by other persons by way of loan in shares
of £500 each, which was to be paid back preferentially on dissolu-
tion, butv any excess of profits received during the term by the
contributors over the total profits realized was to be refunded, not
exceeding, however, the original contributions. The contributors
were parties to the deed of partnership, a clause of which was that
the capita] should be employed in the business and should not be
drawn out during the continuance of the partnership, thus en-
titling the contributors to control its employment by preventing
a diversion of it from the business, which is not consistent
with the ordinary position of lenders or with a personal demand.
To this partnership the defendants loaned £2,500, reciting that
the loan was made under an act of parliament providing that
lenders of money payable in profits in lieu of interest should not
be considered partners.' The loan was to last for the term of the
partnership. The defiandants were to receive a proportion of
profits in lieu of iiiterest, with an' obligation to refund if profits
annually received exceeded their share of the total profits, thus
compelling a person assuming to be a lender to pay back a' part ot
his interest because the borrowers subsequently incur losses. The
arrangement was held to be an elaborate device, an ingenious con-
trivance, for giving the contributors the whole advantages of a
partnership without subjecting them to any of the liabilities, and
they were held to be partners and liable for the debts.^

H. agreed to loan to N. Bros. |5,000 not less than one nor more
than five years, at his option, in consideration whereof N. ,Bros.
agreed to give their whole time to the business, keep accurate and
detailed accounts, open at all times to H.'s inspection, and pay H.
three-fifths of the profits every six months, guarantying that this
should amount to at least |3,000 per annum. As security for the
loan, H. was to have a lien upon all the property of the firm. N.

574^6 ; Badeley v. Consolidated Bank, lender. Such lenders would not be

34 Ch. D. 536. partners independent of the act,

1 This act really seems to add noth- where the loan is not a device, as it

ing to the law of partnership except was in the above case,
to provide that on distribution the ^Pooley v. Driver, 5 Gh. I>, 458.
creditors must be paid before the

67

§ 52. NATURE AND FORMATION.

Bros, agreed to contract no debts outside of the business and to
use no funds except for their support. Any violation was to end
the loan, and thereupon H. could take possession and sell to repay
all sums due him. H. was held to be a partner and liable upon a
note made by N. Bros., on the ground that he had an interest in
the profits as profits, for he could claim three-fifths specifically and
could insist on an accounting and division of profits, and N. Bros,
could not use the funds except for support, showing they were not
sole proprietors, and there was no provision for repaying the ad-
vance except on violating the agreement. The court cite Leggett
V. Hyde, 58 N. T. 272, as being analogous.'

§ 51. Executors or trustees as partners. — Under the older
English law an executor or trustee who received part of the
profits in his representative capacity, and without personal
interest, but in pursuance to instructions of the will, and
without active participation in the business, was liable as a
palrtner to third persons.^

This rule was so great a hardship upon the executor that
he could not be compelled to come into the partnership in
the testator's place, although the decedent and his copart-
ners had covenanted that death should not dissolve the firm,
and although the estate might be liable for breach of cove-
nant by I'eason of the executor's withdrawal, and the exec-
utor is entitled to a decree for dissolution.'
■ § 52. - — witliout active participation. — ^If the executor
merely leaves the assets in the business, but does not person-
ally engage in it, he is not a partner, dormant or otherwise,
nor responsible to ci'editors, for he i& not a principal, and the
surviving partners are not his agents, and the principles of
Cox V. Hickman apply,* even though he intentionally leaves

iRosenteld v. Haight, 53 Wis. 260 spjgott v. Bayley, McCI. &Y. 569;

(40 Am. Rep. 770). Madgwick v. Wimble, 6 Beav. 495 ;

3 Barker v. Parker, 1 T. R, 287; Downs u CoUins, 6 Hare, 418; Page

Wightman v. Townroe, 1 M. & S. 412 ; v. Cox, 10 id. 163 ; Edgar v. Cook, 4

Labouchere v. Tapper, 11 Moo. P. O. Ala. 588; Phillips v. Blatchford, 137

198; Ex parte Garland, 10 Ves. 110; Mass. 510; BeiTy t^.'Folkes, 60 Miss.

In re Leeds Banking Co. L. R. 1 Cli. 576, 612 ; Jacquin v. Buisson, 11 How.

App. 231 ; Wild V. Davenport, 48 N. Pr. 385.

J. L. 129. < Holme v. Hammond, L. R. 7 Ex.

68

TESTS OF A PARTNERSHIP. § 53.

them in as a more or less permanent investment under in-
structions in the will.^

This doctrine was applied, although an executor entered into
written articles of partnership with the surviying partners and a
third person who was taken in as partner, but the executor was not
by the agreement to take any part or exercise any control in the
business, and never did so, and was held not liable as a partner. In
construing the articles of partnership the court look to the will to
ascertain if he is acting under its powers and not of his own motion.'
Some authorities use language implying that involuntarily leav-
ing the assets in the business, not permissively as by mere failure
to compel a winding-up, but by contract with the surviving part-
ners, in compliance with the will, differs from voluntarily leaving
them in as an investment, and that in the latter case the executor
is /personally liable to subsequent business creditors, the estate
not being liable.' But in fact so much of the estate as is embarked
in the business would be liable, whether rightly or wrongly there,
and no other part of it would be; hence this distinction does not
exist. The executor's liability for such unauthorized use of the
assets is to the distributees of the individual estate who have suf-
fered the loss, but his authority or want of authority cannot, on
principle, affect his relation to business creditors. The subject of
continuance of partnership after death by will or contract is con-
sidered further on (§§ 598-605).

§ 53. participation in the business. — But if the exec-
utor engages personally in the business, though acting in
conformity to the will or to the partnership articles, which
provide for his admittance into the firm in the decedent's
place, he is then a principal and personally liable for debts
thereafter incurred.*

218; Wild v. Davenport, 48 N. J. L. 373; 9 Abb. Pr. (N. S.) 363; 39 How.

129; Avery v. Myers, 60 Miss. 367; Pr. 83; Phillips v. Blatchford, 137

and see Brower v. Creditors, 11 La. Mass. 510, 514.

Ann. 117. ^ Owens v. Mackall, 33 Md. 883.

1 Holme V. Hammond, L. R. 7 Ex. 3 Citizens' Mut. Ins. Co. v. Ligon,

218 ; Price v. Groom, 3 Ex. 543 ; 59 Miss. 305, 314 ; Richter v. Poppen-

Wild V. Davenport, 48 N. J. L. hausen, 43 N. Y. 373 ; Avery v. My-

129; Owens v. Mackall, 33 Md. 383; ers, 60 Miss. 367; Owens v. Mackall,

Brasfield v. French, 59 Miss. 633; 33 Md. 383.

Bichter v. Poppenhausen, 43 N. Y. ■lAlsop t). Mather,. 8 Conn. 584; 21

69

§ ol. NATURE AND FORMATION.

A mere request to a dealer with the firm to continue the fulfill-
ment of a contract for which the estate is already chargeable is not
tailing part in the business.

Thus, where a contract for goods has been but partially filled at
the time a partner died, the request by his executor to the seller to
continue deliTery under the contract to the surviying partner, and
a promise to pay as soon as the estate is " settled, and stating that
the business is going on, does not make the executor jointly liable
or show that he is a partner, but is a mere promise to pay the
amount chargeable to the estate.'.

If the widow and next of kin advance further capital and make a
new agreement with the surviving partner as to the proportion of
profits for each, this is not a continuance of the old concern, but a
new partnership, and all are liable to third persons.'

A direction in a. will that one of the executors carry on the tes-
tator's business in his own name, and when the heir comes of age
deliver him the business and half the profits, does not make the ex-
ecutor a partner. He is trustee, and if he continues business after
the majority of the heir under a power of attorney from him, he is
agent or trustee still and not partner."

§ 54. Other representatives. — A parent may bona fide put
money into a concern as his infant son's share of capital, un-
der an agreement that the son's share of the profits during
minority shall be accounted for to the father; and if it was
not the intention of the parties that the father shall be a
partner, he will not be liable as such.^

On the other hand, if the father in fact puts in his own
money and reserves the same control of the business that the ■
son would have had if present and of age, and appropriates
the profits to his own use, he may be held as the actual part-
ner, although he signs the articles for his son as his guard-
ian, but without authority.*

Am. Dec. 703 ; Wild v. Davenport, s Gibson v. Stevens, 7 N. H. 353.

48 N. J. L. 139; Citizens' Mut. Ins. *Barklie v. Scott, 1 Hudsi & Br.

Co. V. Ligon, 59 Miss. 305 ; Gibson v. 83. This case was approved in Owens

Stevens, 7 N. H. 353, 356. See Kreis v. Mackall, 53 Md. 383.

V. Gorton, 33 Oh. St. 468. 6 Miles v. Wann, 27 Minn. 56. Or il

iRiohter ■;;. Poppenhausen, 43 N. he appears as, the partner to the

Y. 373; 9 Abb. Pr. (N. S.) 263. world, Williams v. Rogers, 14 Bush,

> Delaney v. Dutcher, 23 Minn. 373. 776.

70

TESTS OF A PARTNERSHIP. § 55.

And if a person buys an Interest in a firm for the benefit
of another, but the contract between them is such that the
second person is to buy from the other instead of taking the
original purchase, the other must be deemed the partner.

Thus, where the property of the Phoenix Metre Co., a partner-
ship, was represented by four shares, of which Slaney held two and
T. the other two, and T. agreed to sell his two shares to Slaney,
who, not having the money, procured Starr to buy them in his,
Slaney's, name, agreeing to repurchasefrom him at an agreed ad-
vance within a certain time, to secure which agreement he exe-
cuted a mortgage to Starr, here it was held that the beneficial
interest and ownership of the shares bought in Slaney's name
passed to Starr, for the mortgage was not to pay a debt but to se-
cure a contract of purchase, and partnership creditors must be paid
on distribution before Starr.'

§ 55. Annuitants. — Under the old law a person receiving
an annuity out of profit of a business was liable as a partner
merely because sharing part of the profits, although not one
inter se.^

All this i§ of course contrary to the modern doctrine in
Cox V. Hickman, besides being the subject of act of parlia-
ment. (See § 21.)

And now where a testator desires his assets to continue in
business, and that dividends of profits be paid to beneficiaries
of his wiU, the beneficiaries of the dividends are not part-
ners, but receive them in lieu of interest on their money.'

And upon the subsequent bankruptcy of the firm such
bona fide dividends cannot be recovered back.*

1 Starr v. Dugan, 32 Md. 58. instead. Goddard v. Hughes, 1 Cr.

2 Bloxham v. Pell, cited in 2 "W. Bl. & M. 33.

999; JSx parte Ciiuck, 8 Bing. 469; In 'Jones u Walker, 103 TJ. S. 444;
re Colbeck, Buck, 48 ; Exparte Ham- Pitkin v. Pitkin, 7 Conn. 307; 18 Am.
per, 17 Ves. 403, 412; Bond v. Pi^- Dec. Ill; Heighe v. Littig, 63 Md.
tard, 3 M. & W. 857. And where 301 ; Philips v. Samuel, 76 Mo. 657.
an executor was held to be a partner Contra, Nave p. Sturges, 5 Mo. App.
it was said that his cestuis que trust- 557.

eni could have been held as such * Jones v. Walker, supra; Pitkin

V. Pitkin, supra.
71

§ 56. NATURE AND FORMATION,

t
in. SHARINa PROFITS WITH STIPULATION AGAINST LOSSES.

§ 56. The fact that in a contract for sharing profits a
stipulation is added that losses shall not be divided does not
change the presumptive character of the contract as one of
partnership. Such a stipulation is, of course, perfectly-
legal.'

Inasmuch as partners may agree that some of their num-
ber shall be indemnified or guarantied against loss, such a
stipulation between parties does not prevent their contract
being one of partnership if it would otherwise be such.^

A writing, " Eeeeived of G. & Co. $2,000 to invest in wool. Said
G. & Co. to receive two-thirds of the net profits on the sale, and 0.
S. one-third," signed 0. S., was held, in an action to compel 0. S.
to share a loss, not to establish a partnership inter se, because there
was no sharing of loss intended.'

A person receiving a fixed salary without share of profits was
held to be a partner, such being the intention. In that case A. de-
sired a partner, so that there would be some one to close up in case

iGrilpia V. Enderbey, 5 B. & A. Belling filters invented by S., W. to

954; Bond v. Pittard, 3 M. & W. 357; furnish all the money, conduct the

Fereday v. Hordern, Jac. 144; Haz- business in his own name, keep books

ard V. Hazard, 1 Story, C. C. 371, 374. open to S.'s inspection, and to have

2 Bond V. Pittard, 3 M. & W. 357 ; one-third of the net profits, S. agree-
Geddes v. Wallace, 3 Bligh, 370 ; ing to indemnify W. against loss for
Brown v. Tapscott, 6 M. & W. 119; fourmonths, and at the endof ayear
Pollard V. Stanton, 7 Ala. 761 ; Camp S. was to assign to W. one-third of
V. Montgomery, 74 Ga. (1886) ; Con- the patent. At the end of the four
Bolidated Bank v. State, 5 La. Ann. 44; months W. gave up business and
Robbins v. Laswell, 37 111. 365 (§ 35) ; sued S. for losses. S. contended that
Rowland v. Long, 45 Md. 439; Bank there was a partnership, and there-
of Rochester v. Monteath, 1 Den. fore an accounting must be had. It
402; 43 Am. Dec. 681 ; Walden v. was held as above ; but there be.ing
Sherburne, 15 Johns. 409. Contra, clauses consistent only with the
that if ode guaranties the other theory of a partnership, that contract
against loss, there cannot be a part- was said to be at most one which
nership, and that sharing of losses would ripen into a. partnership at
is necessary to constitute a partner- the end of the four months if S. did
ship, Whitehill v. Shickle, 43 Mo. not then cease business.
537. In this case W. agreed with S. ^Ruddick v. Otis, 33 Iowa, 402;
to give his whole time to making and Marston v. Gould, 69 N. Y. 220.

72

TESTS OF A PARTNERSHIP. § 57.

of kis death, and agreed to take in B. as a partner on a salary for
the first year, and a share of profits thereafter. Their written agree-
ment recited a partnership fprnied that day, and they acted and
contracted as partners. On A.'s death, within the year, B. was held
to haye the rights of surviving partner.'

A person who has notice that no personal responsibility is to be
incurred by one of the parties cannot hold him liable as a partner."

§ 57. Sharing losses only. — Arrangements between par-
ties are sometimes made for sharing of losses only. These
are not partnerships inter se, and are only such to third per-
f^ons if there is a holding out. If the arrangement is merely
tq share an expense of keeping property, as where'two joint
owners of a horse agree in writing that one shall keep him
for a certain time,, the expense to be divided, they are not
partners inter se, though they call themselves such, and an
action at law lies for contribution of outlays.'

If the arra,ngement is in relation to an enterprise for profit,
the agreed exclusion of some of the parties from sharing the
benefit, though they share losses, makes it a societas leonina,
and it is not a proper partnership.'*

An agreement between two railroad corporations that any loss to
persons or goods, not traceable to either road, each should pay in
proportion to its share of the freight, does not. constitute them part-
ners nor give third persons new rights, but mgrely furnishes a rule'
for settlements between themselves.'

On the other hand, however, where G. in writing allowed L. to
use their joint names as a firm name and to purchase and sell goods,
G. not claiming any of the profits, but seven per cent, was to be

1 Adams Bank v. Rice, 2 Allen, * Lowry u Brooks, 3 McCord, 431 ;

480. ■ Bailey v. Clark, 6 Pick. 372 ; Moss v.

aBurritt v. Dickson, 8 Cal. 113; Jel'ome, 10 Bosw. 320; Ala. Fei-til-
Bailey v. Clark, 6 Pick. 373 ; Edgerly izer Co. v. Reynolds & Lee, 79 Ala.
■V. Gardner, 9 Neb. 130; Beudel v. 497. Hence nominal partners are
Hettrick, 35 N. Y. Superior Ct. 405 ; not partners inter se, Jones v. How-
Jordan V. Wilkitos, 3 Wash. O. C. ard, 53 Miss. 707. ,
110. SAlgen v. Boston & Maine R, R.

» Oliver v. Gray, 4 Ark. 435 ; Ala. 133 Mass. 433 ; and see Irvin v. Nash-

Fertilizer Co. v. Reynolds & Lee, 79 ville, Chat. & St. L. R'y Co. 93 III. 103

.ila. 497. ' (34 Am. Rep. 116).

73

§ 59. NATURE AND FORMATION.

paid on his advances to the firm, it was held on the death of L.
that G. could sue as surviving partner for debts due to the firm.'

IV. SHARING GROSS RECEIPTS.

§ 58. An agreement to share the gross receipts does not
constitute a partnership where there is no common stock or
joint capital. If all the partners have united their separate
stocks of goods for the convenience or benefit of a joint sale,
and the proceeds of sale leave a deficiency over the original
outlay, there may be a loss to each, or, if a surplus, there is
a gain to each; but there is a mere tenancy in common and
not a partnership. On the other hand, if there is a joint
business, or a capital or common stock, the division of the
product in kind is as much a sharing of profits as if they
had sold and divided the proceeds.^ But where there is no
common stock or joint capital a division of the gross receipts,
either arising from joint labor or labor upon property of
another, does not constitute a partnership, for it does not in-
volve the division of profit or loss, and the benefit is not
dependent on the success of the enterprise. Tlie rule has
been stated now for about one hundred and fifty years,
that sharing gross profits does not constitute a partnership;
yet in truth the proper explanation of this class of cases
seems not that, but they rather should be grounded upon the
fact that no idea or possibility of joint profit is implicated.

§ 59. Working or letting on shares. — Laborers or culti-
vators who farm land for the owner, or rent it on shares,
for a share of the crops, are not partners.' So of persons
agreeing to divide the fish in a joint hkul;^ or parties agree-
ing, to divide a reward when obtained;' or coach owners

1 Hendrick v. Gunn, 35 Ga. 234 merlin, 48 id. 42.5 ; Gurr v. Martin, 73

2Everitt v. Chapman, 6 Conn. 347; id. 528; Blue v. Leathers, 15 111. 81;

Brady v. Colhouu,' 1 Pa. 140; Jones Front v. Hardin, 56 Ind. 165; McLau-

V. McMichael, 12 Rich. (S. Ca.) L. 176. rin v. McCoU, 3 Sti;ob. L. 21 ; Mann

3 Courts V. Happle, 49 Ala. 254 ; v. Taylor, 5 Heisk. 267 ; Albee v. Fair-

Tayloev. Bush, 75 Ala. 432 ; Christian banks, 10 Vt. 314; Haydon v. Craw-

V. Crocker, 25 Ark. 327; Gardenhire ford, 3 Up. Can. Q. B. (old ser.) 563.

V. Smith, 39 id. 280; HoUoway u. 4 Hirley v. Walton, 63 111. 260.

Brinkley, 42 Gra. 326; Smith v. Sum- 5 Dawson v. Gurley, 23 Ark. 381.

74

TESTS OF A PARTNERSHIP.

§59.

dividing the gross receipts of a line of coaches;* or seamen
to be paid in proportion to the fish caught;^ or a collector of
wharfage paid by a share of gross receipts;' or a person
agreeing to make tunnels for a mine in consideration of a
part interest in the mine, and he can sue at law for non-
payment;* or two workmen agreeing to divide their wages.'

So of one wht> lets property for a proportion of gross re-
ceipts as a hotel;* or the machinery in a steamboat;'' or a
ferry;' or a vessel;' or the right to make and sell a patented
device."* So of t-he owners of a ditch dividing profits on sales
of water;" or the proprietor and manager of a theater divid-
ing gross receipts, the manager alone finding the actors and
the proprietor providing the general'service and expenses; **
or the owner of a ligh ter giving one who worked her half
the gross proceeds."

So of sailors paid a proportion of the oil secured on a
whaling voyage;" or a person taking out a cargo belonging

1 Eastman v. Clark, 53 N. H. 276;
16 Am. Rep. 193.

2 Holden v. French, 68 Me. 341.

» Maunsell v. Willett, 36 La. Ann.
333.

♦ Barber v. Cazalis, 30 Cal. 93.

5 Finckle v. Staoey, Sel, Cas. in Ch,
9 ; Hawkins v. Mclntyre, 45 Vt. 496,
where they were to finish a church
together, dividing receipts, less ex-
pense of help and material ; and see
Smith V. Moyriihan, 44 Cal. 58, where
a boiler-maker and a builder of- steam-
engines jointly agreed with the
owner of a boat to put in an engine,
-not specifying what part each was to
do or defining their relations. The
employee of one sued both ; presum-
ably they are not partners.

« O'Donnell v. Battle House Co. 67
Ala. 90 ; 43 Am. Rep. 99 ; Beecher v.
Bush, 45 Mich. 188 ; 40 Am. Rep. 465 ;
FaTrand v. Gleason, 56 Vt. 633.

'KnowKon v. Reed, 38 Me. 346.

8Heimstreet V. Howland, 5 Den, 68.

9 Bowman v. Bailey, 10 Vt. 170;
Tobias v. Blin, 31 id. 544; Cutler v.
WiQsor, 6 Pick. 335; 17 Am. Dec. 385.

m Wheeler v. Farmf^r, 38 Cal. 203;
Gillies V. Colton, 33 Grant's Ch. (Up.
Can.) 133.

11 Bradley v. Harkness, 36 Cal. 69 ;
but see Abel v. Love, 17 Cal. 233.

"Lyon V. Knowles, 3 B. & S. 556.

13 Dry V. Boswell, 1 Camp. 839.

"Mair v. Glennie, 4 M. & S. 340;
Wilkinson v. Frasier, 4 Esp. 183. See
Perrott v. Bryant, 3 Young & C,
Ex. 61; The Frederick, 5 Rob. Adm.
8; Reed v. Hussey, Blatchf. & H.
Adm. 535 ; Duryee v- Elkins, 1 Abb.
Adm. 529 ; CoiHn v. Jenkins, 3 Story,
C. O. 108; Baxter v. Rodman, 3 Pick.
435; Grpzier v. Atwood, 4 id. 334;
Turner v. Bissell, 14 id. 193 ; Rice v.
Austin, 17 Mass. 197, 305. See
Bridges v. Sprague, 57 Me. 543;
Holden v. French, 68 id. 341 ; Moore
V. Curry, 106 Mass. 409; Jof v.
Allen, 3 "Woodb. & ^. 303.

■y?

§ 60. NATURE AND FORMATION.

to another to sell and bring back a return load and receive
half the proceeds.^

§ 60. brokers.— : A broker who sells on a commission

proportioned to the proceeds of sales is not a partner, but an
employee.^ And though his reward is a share of net profits,
as where a broker buys commodities with the funds of an-
other, he to sell again and divide profits, he is not a partner,
for the nature of his occupation shows that he has no
ownership in the commodities and the power to sell may be
revoked, subject only to a claim for breach of contract.'
And where brokers or comrnission merchants agree to divide
commissions with each other they are not made partners
thereby.

Thus, where A., a real estate agent, was employed to sell defend-
ant's land and took in B. to help him, agreeing to give B. half the
commission, and B. sold the land and received payment from the
defendant and attempted to release A.'s claim upon the defendant,
it was held that he could not do so, being a mere agent of A.,
without interest in specie in the commission, and not his partner.''

So an arrangement between commission merchants in one city
and their correspondents in another, that, on all sales of produce
shipped by the former to the latter, part of the latter's commis-
sions should be paid to the former, is not a partnership.'

Where the broker has an interest in the capital, as where he
agrees to share in the speculation, which is thereafter spoken of by
parties as a joint purchase, joint concern, etc., he will be deemed a
partner inter se.'

1 Lpwry V. Brooks, 3 McCord (S. ments to be partnerships as to third
Ca.), L. 431. " persons, see § 16. In Thwing v.

2 For example, see Dillard v. Clifford, 136 Mass. 483, an agreement
Scruggs, 36 Ala. 670 ; and see the by a broker employed to sell a horse,
cases cited under § 43. So of an ex- to share commissions with another
partnei: receiving a percentage on broker if he will procure a buyer,
gross sales for his influence, Gibson was said to constitute them partners
V. Stone, 43 Barb. 385 ; 38 How. Pr. in the transaction. So that a fraud
468. by the latter upon the owner, where-

aHanna v. Flint, 14 Cal. 73. by the owner was induced to name

* Wass V. Atwater, 33 Minn. 83. a price on a false basis and a sale

s Pomeroy v. Sigerson, 33 Mo. 177. was effected, bars the innocent

For the English cases prior to Cox broker's action for commissions.

V. Hickman, holding such arrange- « Eeid v. Hollinshead, 4 B. & C. 867.

76

TESTS OF A PARTNERSHIP. § Gl.

§ 61. though hoth furnish expenses or outlay. — The

fact that the recipient of part of the gross receipts is to furnish
' part of the expenses or tools or material, as well' as labor,
does not alter the result. Thus in cultivating land, where an
overseer or cultivator is to furnish part of the teams or pay
part of the labor, and the crop is to be divided, it is not a
partnership, but is a leasing, or an employment, or a tenancy
in common of the crop, according to the nature of the en-
terprise.^

But the joint cultivation of land, with an agreement to
divide profits, is a partnership. ^

If the owner of land agrees with a person that lie shall cut the
timber, each paying certain of the expenses and divide the profits;'
or, if B. is to huild houses on A.'s land, the proceeds, deducting
the cost of the houses and the agreed value of the land, to be di-
vided, they are not partners.''

So if the owner of a mill furnishes the mill, and another con-
tracts to keep a supply of logs and the lumber is to be divided.'

So if the owner is to furnish ^ brick-yard and another the labor
and materials, and they are to divide the brick they make, it is not
a partnership.' Yet in Farmers' Ins. Co. v. Ross,' although the
bricks were to be divided, there was a power in each by the con-
tract to sell them. The question arose on an action against both

1 Moore V. Smith, 19 Ala. 774; Blue Rep. 607; Brown v. Higginbotham,
V. Leatljers, 15 111. 31 ; Donnell u. 5 Leigh (Va.), 583 ; 37 Am. Dec. 618.
Harshe, 67 Mo. 170 ; Musser v. Brink, Contra, Donnell v. Harsche, 67 Mo.
68 Mo.> 343; 80 id. 350; Putnam v. 170.

Wise, 1 Hill, 234; Day v. Stevens, 88 'St. Denis v. Saunders, 36 Mich.

N. Ca. 83; 4P, Am. Rep. 733 (limit- 369.

ing Curtis v. Cash, 84 id. 41); Brown ^Bisbee v. Taft, 11 El I. 307. See

V. Jaquette, 94 Pa. St. 113; 39 Am. Kilshawu. Jukes, §20.

Rep. 770 ; Murray v. Stevens, Rich. 6 Robinson v. Bullock, 58 Ala. 618 ;

Eq. Cas. (S. Ca.) 205. See, also, Stoallingsu. Baker, 15 Mo. 481; Kelly

Clarke. Smith, 53 Vt., 529; and Her- v. Gaines, 34 Mo. App. 506; Ambler

manos v. Duvigneaud, 10 La. Ann. v. Bradley, 6 Vt. 119. But see

114. Contra, Allen v. Davis, 13 Ark. Jones v. McMichael, 13 Rich, L. 176.

88; Holifleld v. "White, 53 Ga. 567; SLamonti/. Fullam, 133 Mass. 583;

Adams v. Carter, 53 Ga. 160. Chapman v. Lipscomb, 18 S. Ca. 333.

2 Urquhart v. Powell, B4 Ga. 39 ; 7 29 Oh. St. 439. The case is criti-
Plummer v. Trost, 81 Mo. 435 ; Bey- cised in Beecher v. Bush, 45 Mich,
nolds V. Pool, 84 N. Ca. 37; 87 Am. 188, 197-8.

77

§ 63. NATURE A.ND FORMATION.

for breach of contract of sale made by one of tbem. The court held
there was a partnership, because a joint sale, and not a sepai-ate sale
of his share by each, was contemplated, and that a division of arti-
cles made is a division of profit and loss.' And where two agreed
to burn lime on shares, one to fill the kiln with stones and the
other to furnish the wood and burn the kiln, the lime to be equally
divided, they were held to be partners."

§ 63. herding. — A contract by which a person or per-
sons are to herd the cattle of another for a certain number of
years, and then return the original number and divide the in-
crease, or pay the valuation originally placed upon the herd
and divide the excess, is held noj; to be a partnership between
the owner and herders.'

Thus, three persons made a contract with B., the owner of
cattle, to herd them for a certain time. A valuation of the cattle was
agreed upon, and at the end of the period B. was to sell the cattle,
retain the amount of the valuation, and divide the excess in speci-
fied proportions between the three persons. Each of the three sup-
ported himself and hired his own assistants. It was held that the
three herders were not partners, and the contract was one of em-
ployment, under which each could bring a separate action for serv-
ices, though the language was joint.*

But if they are jointly engaged in the business they are partners.

Thus, two persons who agreed to keep the sheep of another,
keeping up the fiock and paying the owner part of the wool and
dividing the profits, were held to be partners inter se, so far that the
settlement by one in the name of both, of a claim due them for
breach of warranty of soundness, bound both."

§ 63. tenants in common dividing returns. — The same

principle applies where tenants in common of property, jeal

J In Aubrey v. Frieze, 59 Ala. 587, * Beckwith v. Talbot, 95 U. S. 289

crops jointly produced at joint ex- (s. c. 2 Colorado, 639),

pense were to be divided, but the sgtapleton v. King, 33 Iowa, 28;

fact of an unqualified power of dispo- 11 Am. Rep. 109. And see Brown v.

sition in each was held to show a Robbins, 3 N. H. 64, where they were

partnership. held jointly liable to the owner for

^Musieri;. Trumpbour, 5Wend. 374. the price' obtained for the cattlQ

' Robinson v. Haas, 40 Gal. 474 ; which they were jointly taking to a

Ashby V. Shaw, 82 Mo. 76. market.

78

TESTS OF A PAETNERSHIP. § 03.

or personal, agree to divide the returns from it, or where
property, labor or materials are united to produce certain
goods which are to be divided in specie; this does not con-
stitute a partnership.

In the leading case on this principle two persons having a race
horse in common agreed that one should keep, train and manage
him on a specified weekly allowance for expenses, the other to pay
for his transportation to races and entrance money, and the win-
nings to be, divided, and this was held, in an action between the two
for his keep, though perhaps it was not necessary to pass on the
question, not to be a partnership inter se}

Two persons bought a circus, and one contracted with the other
to run it and divide the income. They are not partners, for only
one was in the business. A mere joint ownership does not make a
partnership, nor does dividing an income."

So an agreement that A. should buy the undivided half of
B.'s land at half the cost of the land, and of improvements
made and to be made, and divide and sell it, sharing profits,
and dividing unsold lots, .is not a partnership inter se.'

In Bruce v. Hastings, 41 Yt. 380, Hastings had agreed to buy a
farm from one N. ; he then Eigreed with Bruce that they together
would carry out the contract and would sell the property and divide
profits equally. Hastings took no deed from N., but had N. make
deeds direct to the persons to whom they sold lots. Bruce sued
Hastings in assumpsit for half the profits; and the defense that they
were partners, and hence the action must be for an accounting, was
overruled, and the contract was held not to be one of partnership,
but of compensation for assistance in carrying out a single specific
purpose or enterprise, or a tenancy in common, except that tbey
did not have the legal title.*

The leasing of ground by two, under an agreement with the lessor
to erect a building upon it, and the construction of a hotel which is

1 French v. Styring, 3 C. B. N. S. ^ It will be hereafter seen that, an
357. ' action at law is frequently allowed

2 Quackenbush v. Sawyer, 54 Cal. to settle partnerships in a single en-
439. See, also, Chapman v. Eames, terprise; hence this case was rightly
67 Me. 453. decided, either on the principles of

' Munson v. Sears, 13 Iowa, 163 ; this section or of § 33.
Sears v. Munson, 33 id. 380.

79

§ 04. NATURE AND FORMATION.

afterwards rented and the rents divided, does not make them part-
ners in the property.' So a contract to buy certain land, erect a
mill upon it, sharing the expenses, and to divide the profits arising
from selling or leasing it, does not create a" partnership, but is a
mere tenancy in common, for there is name, capital, business con-
templated, or right to sell, or agreement for a partnership.' So if
two persons buy a horse to resell at a profit, they are tenants in
common and not partners, and one has no lien on the other's share
and can sue him at law.' And if tenants in common of land agree to
cut the timber and share equally in the expenses and proceeds, it is
not a partnership inter se;* or if the owner sells the standing
timber, paying in part of the gross proeeeds."

If the article alleged to be owned in common was procured
as subsidiary to the carrying on of a business with it, there
is, a partnership; as where A. and B. agree to buy O.'s ice
machine and to make and sell ice for ten years. This is not a
tenancy in common, for the machine was bought for the
business, and if it were destroyed another' could be substi-
tuted.«

§ 64. Joint enterprise not for profit. — If a joint or com-
mon enterprise is not entered into for the purpose of earning
profits while together there is no partnership.

Thus an arrangement between B. and 0. for keeping
house together, to lessen expenses, C. to pay rent and
butcher bills, and B. all other bills, is no partnership, and
C. cannot bind B. for the rent.' An a;greement to buy or
hold land in common does not create a partnership; ^ nor

1 Treiber v. Lanahan,. 23 Mi3. 116. cer, 4 Cow. 163, where one attempted

2 Farrand v. Grleason, 56 Vt. 633. to sign for both on the purchase
SGoell V. Morse, 126 Mass. 480; notes; Brady v. Colhoun, 1 Pa. 140;

Oliver v. Gray, 4 Ark. 425. White v. Fitzgerald, 19 Wis. 480,

4 Millett D. Holt, 60 .Me. 169. holding that a writing by F., in

5 Fail V. McRee, 36 Ala. 61. whose name the title stood, stating

6 Leiden v. Lawrence, 3 N. E. 283 the following is the property owned
(Exch.). jointly by G. F. and J. W.: one hun-

7 Austin V. Thomson, 45 N. H. 113. dred acres bought of O, and since
8Huckabee v. Nelson, 54 Ala. 12; sold for $7,500 to S., $2,100 paid, out

Gilmore v. Black, 11 Me. 485; Trei- of whieh W. received $1,000; two
ber V. Lanahan, 23 Md. 116; Sikes v. acres each had half in full, sold to
Work, 6 Gray, 433; Ballou v. Spen- F. for $2,600, no part of which has

80

TESTS OF A PARTNERSHIP. § 64,

a purchase of stock.' An agreement to buy and freight a
vessel in common is not a partnership inter se.^ So where
persons are jointly concerned in building a mill, they are
not thereby made partners, but each is alone liable on his
own contracts for material.'

A joint interest in a patent does not make the parties'
partners.*

After a partnership had ceased active operations two per-
sons purchased the interest of one partner in the profits;
these two, though recognized as members of the firm, are
not partners, and, therefore, can sue each other at law, for
there is no participation in profit and loss.*

§ 65. A joint purchase, with the intention of dividing the
property or making separate sales, each on his own account,
does not constitute a partnership, for no joint profits are
designed to be made.*

Thus, where A. and B. talked of buying lands, and A.
told B. to go and buy and he "would go halves with him,"
and A. bought in his own name and employed the plaintiff
to make certain needed improvements, and gave him a note
signed in the name of both A. and B., there was held to be .
no partnership, and B. is hot liable on the note.'' So where

been given W., etc., etc., is not suffi- ris v. Litchfield, 14 111. App. 83,

cient to show a partnership in buy- where a person agreed to pay half

ing and selling land, but is rather a the cost of fitting up a space in the

declaration of trust; Stannard v. steam vessel for carrying his goods;

Smith, 40 Vt. 513, that the mere fact he is not liable on the contracts of

that others'were co-owners with de- the owners pf tha vessel for work,
fendant in land does not make them * Section 69.

partners in his scheme to develop a ^Oowles v. Garrett, 30 Ala. 341;

mine upon it, and his employee can Goddard v. Pratt, 16 Pick. 413, 435 ;

sne him alone for services. Vere v. Asliby, 10 B. & C. 388 ; Par-

1 Humphries v. McCraw, 5 Ark. 61, chen v. Anderson, 5 Montana, 438,
where each contributed money to 457. Contra inter se, if already
buy a drove of hogs, and afterwards partners in the succeeding business,
one took out his share by consent. McGill v. Dowdle, 33 Ark. 311.

The rest can sue without joining him. " Hoare v. Dawes, 1 Doug. 37,1 ; Gib-

2 De Wolf V. Howland, 2 Paine, C. son v. Lupton, 9 Bing. 387 ; Coope
C. 856. V. Eyre, 1 H. Bl. 37 ; Reid v. Hollins-

» Porter v. McClure, 15 Wend. 187; head, 4 B. & C. 867.
Noyes v. Cushman, 25 Vt. 390 ; Mor- 'Huckabee v. Nelson, 64 Ala. 13.
Vol. I — 6 81.

§ 6G. NATURE AND FORMATION.

five parties raised $90,000 in fixed proportions, and employed
one of their number to purchase a large quantity of cotton
for them and to prepare it for market, they to own it in
such proportions, but the subject of seUing^was left for
future arrangement, they are tenants in common and not
partners. The fact of an original intention to sell and di-
vide profits is not sufficient without an agreement to that
effect, since either could change his mind and one could not
bind another. Hence if the party who had prepared the
cotton for market shipped it for sale and received advances
on it from the consignee, which he divided among his asso-
ciates, this is a conversion by him, waived by them, and
they are not liable to the consignee, the cotton not having
realized the advances.'

§ 66. pooling arrangements. — An arrangement is

frequently made by which the owners of separate businesses,
which each conducts at his own expense and under his own
control, divide the net earnings or the gross proceeds of cer-
tain parts of the business to which each has contributed.

Thus the owners of connecting lines of railroads or other
carriers associating on terms of each giving through bills or
tickets, and dividing proceeds in proportion to the freight
earned by each, but without agreement to share the pro-
ceeds of business on all the lines, are not partners. These
are mere running arrangements.^

1 Baldwin v. Burrow^, 47 N. Y. R. R. 114 Mass. 44; Algen v. Boston

199. & Maine R. R. 133 id. 423 (6 Am.

s Croft V. B. &0. R. R. 1 Mac Arthur & Eag. R. R. Gas. 562); Watkins v.

(D. C), 492; Ellsworth v. Tartt, 26 Terre Haute, etc. R. R. 8 Mo.

Ala. 733 (63 Am. Dec. 749); Hot App. 569; Wetmore v. Baker, 9

Springs R. R. v. Trippe, 43 Ark. 465 Johns. 307 ; Pattison v. Blanchard, 5

(48 Am. Rep. 65); Irvin r. Nashville, N. Y. 186; Merrick v. Gordon, 30

C. & St. L. Co. 93 111. 103 (34 Am. id. 93; Briggs u Vanderbilt, 19 Barb.

Rep. 116) ; Atchison, Topeka & Santa 332; Mohawk & Hudson R. R. v.

Fe R. R. V. Roach, 35 Kao. 740 ; Dar- NUes, 3 Hill (N. Y.), 163 ; Railroad v.

ling 17. Boston & C. R. R. 11' Allen, Sprayberry, 8 Bax. 341; Nashville

295 ; Grass v. N. Y. Providence & & Chat. R. R. v. Sprayberry, 9 Heisk.

Boston R. R. 99 Mass. 330 ; Pratt v. 853. And see St. Louis Ins. Co. v. St.

Ogdensburg& Lake Cham plain R. R. Louis, Vandalia, etc. R. R. 104 U. S. '

103 id. 557, 567; Hartan v. Eastern 146 (3 Ain. &Eng. R. R. Cas. 563). But

83

TESTS OF A PARTNERSHIP. § 67.

If two firms agree to dmde equally profits, on compressing and
shipping cotton, of the business after excluding a certain amount,
viz., the first fifty thousand bales, to cover expenses, each business,
however, to be conducted separately, and neither contributing to
the expenses or losses of the other, they are not partners inter se.^

Where two firms agreed each to mate contracts with third per-
sons in their separate names for the sale and delivery of fiour and
other produce with a view to realize an anticipated rise in the
prices, the contracts to be for joint benefit, and profits to be equally
divided and losses shared equally, the partners of both firms were
sued for non-performance of a contract made by one of the fijms
in its own name, the arrangement was held not to be a part-
nership in Smith v. Wright, 5 Sandf. 113, but in 4 Abb. App. Dec.
274, afiirming the Judgment for Avant of allegation of offer to per-
form, the arrangement was said to be a partnership as to third per-
sons.'

So where R. owned one boat and D. another, and they agreed
that at the end of the season,^ if the earnings of one boat, deduct-
ing expenses,, exceeded that of 'the other, the excess should be
divided, but neither had control or voice in the management of
the other's boat, the claim of each is not on the earnings in specie,
bufa personal claim against the owner; hence they are not part-
ners; and a passenger injured on one boat by boiler explosion can-
not hold the owner of the other liable as a partner.'

But if in such case the ownership in the earnings is a vested
interest in them as such and before division, and not a personal
debt of the owner, it is held that the owners are partners, and the
passenger injured by the boiler explosion could recover from both.''

§ 67. common fund. — Where the earnings are put

into a common fund it has been held that the associates are
partners.

contracting in a joint name repre- was held not to be a partnership infer

senting them all makes them jointly se. An agreement that they should

and severally liable for a loss, Block work against each other day by day

V. Fitchburg R. R. 139 Mass. 308. means merely that if one worked,

1 Mayrant v. Marston, 67 Ala. 453; when the other did not he should be
Jordan u Wilkins, 3 Wash. C, C. 110. allowed for it. Hawkins u Mcln-

2 Where M., having a contract to tyre, 45 Vt. 496.

finish a church, agreed with H. to ' Pay v. Davidson, 18 Minn. 523.
work it together, dividing receipts, * Connolly v. Davidson, 15 Minn,
less expense of material and help, this 519.

88

§ 67. KATURE AND FORMATION.

A stage route consisted of sections. The occupants of
each section provided his own coaches and horses, employed
his own drivers and paid the expenses of his own section,
except tolls. The fares, less tolls, were to be divided in
proportion to the length of each section. A person was
injured by being run into by a coach on one section and
sued all the owners as partners. The fact that each pays the
expenses of his own section tends to show that there was no
partnership; but as the passage money was to constitute a
common fund, this was held to distinguish the case from one
where each retained the passage money of his own line and
was- merely agent of the others in collecting their money as
in the cases above cited, and there was held to be a partner-
ship here and a liability for the injury.'

If siich stage managers unite in having a joint capital
and divide profits, they are of course partners as to third
persons.^ So, if they hold themselves out as a joint concern,
third persons may hold them as such.' And if their drivers
or agents are jointly employed, and hence are the servants
of all, an are jointly liable for their defaults.*

1 Champion v. Bostwick, 18 Wend. v. I. & St. L. R. R. 9 Mo. App. 226 ;

175 (31 Am. Dec. 376). See Wayland Fairchild v. Slocum, 19 "Wend. 830

V. Elkins, 1 Stark. 273; Holt, N. P. (aff'd, 7 Hill, 392). One railway com..

227 ; Fromont v. Coupland, 3 Bing. pany working the lines, of anothei

170, and Connolly v. Davidson, su- company in connection with its own,

pra; The Stbt. Swallow, Olcott, 334; onadivisionof net receipts, was held

Meaher v. Cox, 37 Ala. 201 ; Bowas v. not to form a partnership though

Pioneer Tow Line, 3 Sawy. 21. And under a joint committee selected

this is the explanation of such cases from the directors of each. McCal-

as Musier v. Trumpbour, 5 Wend, lum v. Buffalo & Lake Huron R'y

274, cited supra, % 61. See, also, Green Co. 19 Up. Can. C. P. 117. On this

V. Beesley, 3 Bing. N. C. 108, where, principle of mixing in a joint fund,

however, losses were also to be di- Sims v. Willing, 8 S. & R. 103, was

vided. decided, where A chartered a vessel

2Cooley V. Broad, 29 La. Ann. 345 by B.'s direction to carry a cargo of

(39 Am. Rep. 382); Dow v. Say ward, flour belonging in part to A., part to

13 N. H. 271 (afl'd, 14 id. 9). B., and part to C, the whole to be

3 Paris, etc. Road Co. v. Weeks, 11 sold to the consignee. The vessel

Up. Can. Q. B. 56 ; Wyman v. Chi- was captured by British cruisers and

cage & Alton R. R. 4 Mo. App. 35. A., B. and C. were held partners and

<Cobb V. Abbot, 14 Pick. 289; individually liable for the amount of

Dwight V. Brewster, 1 id. 50 ; Barrett a general average.

84

TESTS OF A PARTNERSHIP. § 70.

§ 68. Cheese factory. — The patrons of a cheese factory,
that is, persons who send milk to the estabhshment founded
by them, and receive in return, at their option, cheese or
the proceeds of its sale, in proportion to the delivery of milk,
are not partners, but either part owners or creditors, that is,
they are either bailors or vendors.^

§ 69. Patents. — A contract by which an inventor agrees
that a person shall have the exclusive right to make and
sell his device, paying part of the proceeds or profits, is not
a partnership.^ Nor where the owner of a device agrees
with another to get a patent in their joint names and sell
the right to use it, payable in royalties, and divide profits.'

Co-ownership in a copyright is not a partnership; there-
fore, if one uses the plates and prints and sells copies, the
remedies as between partners are not apphcable; * nor a joint
interest in a patent.^

§ 70. Ship-owners. — On the same principle that co-owner-
ship or joint ownership does not constitute the owners part-
ners, part owners of ships, steamboats or other craft are, in
absence of some other element in this relation, uniformly
treated as not partners, ever since Doddington v. HaUet, 1
Ves. Sr. 497, was overruled by Lord Eldon in Ex parte
Young, 2 Ves. & Bea. 342, and Esc parte Harrison, 2

iJose, re.'

iButterfleld v. Lathrop, 71 Pa. St. 488; Pitts v. Hall, 3 id. 201; Penni-

335 ; Sargent v. Downey, 45 Wis. 498 ; man v. Munson, 26 Vt. 164 ; Carter v.

Gill V. Morrison, 26 Up. Can. C. P. Bailey, 64 Me. 458.

134; Hawley v. Keeler, 63 Barb. 331 . ^ Ex parte Young, 2 V. & B. 242;

(aff' d, 53 N. Y. 114). Ex parte'H.axrison, 2 Rose, 76 ; Helme

3 Wheeler v. Farmer, 38 Cal. 203 ; v. Smith, 7 Bing. 709 ; Green v.
Vose V. Singer, 4 Allen, 226 ; Math- Briggs, 6 Hare, 395 ; Berthold v.
ers V. Green, L. R. 1 Ch. App. 29; Goldsmith, 24 How. 536; The Will-
Gillies V. Colton, 22 Grant's Ch. Up. iam Bagaley, 5 Wall. 377; Macy v.
Can. 133. DeWolf, 3 Woodb. & M. 193; Jack-

SHermanos v. Duvigneaud, 10 La. sou v. Robinson, 3 Mason, 138; Don-
Ann. 114. aid ^- Hewitt, 33 Ala. 534; Bacon

* Carter v. Bailey, 64 Me. 458. As v. Cannon, 3 Houst. 47 ; Loubat v.
to trade-mark, Dent v. Turpin, 2 J. & Nourse, 5 Fla. 350 ; Allen v.^ Hawley,
jj jgg 6 id. 143 (63 Am. Dec. 198) ; Patterson

• Parkhurst v. Kinsman, 1 Blatchf. v. Chalmers, 7 B. Mon. 595; Owens

85

§71.

NATURE AND FORMATION.

A ship or steamboat may, however, be the subject of
partnership as well as any other property.' And if she is
owned by a partnership as part of their assets, she is held
the same as other property and hence may be sold by one
partner.^ And in other respects the rules governing ordi-
nary partnerships apply.' And part owners of a ship may
be partners in the earnings or freight.* ,

§ 71. Joint cargo. — Persons not connected in trade who
cbntribute specified portions of a cargo, or ship-owners who
unite in taking an interest in the proceeds of a cargo sent
out by them to be sold, without agreement as to profit and
loss, are not partners, the only joint act being that of sell-

ing.*

V. Davis, 15 La. Ann. 33; Theriot v.
Michel, 38 La. Ann. 107; Harding v.
Foxcroft, 6 Me. 76; Knowlton v.
Reed, 38 id. 346; Little v. Merrm, 63
id. 338; Merrill v. Bartlett, 6 Pick.
46. And see Thorndike v. ' De Wolf ,
6 id. 130 ; Moore v. Curry, 106 Mass.
409 ; Cinnamond v. Greenlee, 10 Mo.
578 ; Ward v. Bodeman, 1 Mo. App.
373; Mumford v. Nicoll, 30 Johns.
611 (reversing 4 Johns. Ch. 533);
Stedman v. Feidler, 30 N. Y. 437;
Williams v. Lawrence, 47 N. Y. 463 ;
Scottin V. Stanley, 1 Dall. 139 ; Coe
V. Cook, 8 Whart. 569; Hopkins v.
Forsyth, 14 Pa. St. 34; Coursin's Ap-
peal, 79 Pa. St. 330; Baker v. Casey,

19 Grant's Ch. (Up. Can.) 537. Contra,
Story on Partnership, § 344 ; Hinton
V. Law, 10 Mo. 701. See Seabrook v.
Rose, 3 Hill (S. Ca.), Ch. 553.

1 Campbell v. MuUett, 3 Swanst.
551; Nugent v. Locke, 4 Cal. 318;
Loubat V. Nourse, 5 Fla. 350 ; Allen
V. Hawley, 6 id. 143 (63 Am. Deo.
198) ; Hewitt v. Sturdevant, 4 B. Mon.
'453, 459; Phillips v. Purington, 15
Me. 435; Lamb v. Durant, 13 Mass.
54 (7 Am. Dec. 31) ; Mumford v. NicoU,

20 Johns. 611, 638 (rev. S. C. 4 Johns.

Ch. 53); Williams v. Lawrence, 47
N. Y. 463; Lape v. Parvin,'2 Disney,
560 ; and cases in the next notes.

2 The WiUiam Bagaley, 5 Wall.
377, 406; Lamb v. Durant, 13 Mass.
54 (7 Am. Dec. 31). And see Hewitt v.
Sturdevant, 4 B. Mon. 453; Ex parte
Howden, 3 M. D. & D. 574.

8 Loubat V. Nourse, 5 Fla. 350; Allen
V. Hawley, 6 id. 143 (63 Am. Deo. 198) ;
Williams v. Lawrence, 47 N. Y. 463 ;
Wright V. Hunter, 1 East, 30.

< Phillips V. Penny wit, 1 Ark. 59;
Starbuck v. Shaw, 10 Gray, 493 ; Rus-
sell V. Minnesota Outfit, 1 Minn. 163;
Young «. Brick, 3 N. J. L., 341, 490,
664 ; Reeves v. Goflf, 3 id. 194, 454, 609 ;
Mumford v. Nicoll, 30 Johns. 611 (re-
versing 4 Johns. Ch. 533); Merritt
V. Walsh, 33 N. Y. 685, 689; Will-
iams V. Lawrence, 47 id. 463 ; Coe v.
Cook, 3 Whart. 569 ; Baker v. Casey,
19 Grant's Ch. (Up. Can.) 587.

5 Saville v. Robertson, 4 T. R. 730;
Hoare v. Dawes, 1 Dougl. 371 ; Coope
V. Eyre, 1 H. Bl. 87; Harding v.
Foxcroft, 6 Me. 76; Holmes t). United
F. Ins. Co. 3 Johns. Cas. 339 ; Post v.
Kimberly, 9 Johns. 470; French v.
Price, 34 Pick. 13, 19; Jackson v.

86

TESTS OF A PARTNERSHIP. §"71.

This principle was held to apply where A. sold to B. two
thousand boxes of candles on joint account, B.to receive a
commission on sales, and for one-half the sales B. is to pass
over the purchase notes' to A. The sale by A. to B. make
them tenants in common of the candles, and the agreement
to consign them to B. for sale on joint account, though
simultaneous with the sale, and perhaps constituting one
motive for it, is distinct from it.'

Robinson, 3' Mason, 138; De Wolf w. iHawes v. Tillinghasi, 1 Gray,
Howland, 2 Paine, 0. C. 856 ; Coe v. 289.
Cook, 3 Whart. 569.

87

CHAPTER III.

JOINT STOCK COMPANIES, CLUBS AND GRANGES. '

§ 72. Joint stock company. — There is nothing illegal in a
partnership with transferable shares, and that is all that a
joint stock company is. There is no intermediate associa-
tion or form of organization between a corporation and a
partnership known to the common law, and, unless other-
wise provided by statute, as is the case in England and New
York, a joint stock company is treated and has the attri-
butes of a common partnership.* Yet the fact of transfer-
able shares makes such an association different, not merely
in magnitude but in kind, from ordinary partnerships, be-
cause not based upon mutual trust and confidence in the

1 That it is a partnership, Perring
V. Hone, 4 Bing. 28 ; Fox v. Clifton,
6 id. 776; Olagett ,v. Kilbourne, 1
Black, 346 ; Montgomery v. Elliott, 6
Ala. 701 ; Grady v. Kobinson, 28 Ala.
289; Smith v. Fagan, 17 Cal. 178;
McConnell v. Denver, 35 id. 365;
Pettis V. Atkins, 60 111. 454; Pipe v.
Bateman, 1 Iowa, 369; Greenup v.
Barbee, 1 Bibb, 320 ; Frost v. Walker,
60 Me. 468 ; Alvord v. Smith, 5 Pick.
332; Haskell v. Adams, 7 id. 59;
Kingman v. Spurr, id. 235 ; Tyrrell
v. Washburn, 6 Allen, 466 ; Taf t v.
Ward, 106 Mass. 518; Bodwell v.
Eastman, id. 525 ; Whitman v. Porter,
107 id\ 522 ; Gott v. Dinsmore, 111 id,
45; Taft v. Warde, 111 id. 518;
Machinists' Nat'l Bank v. Dean, 124
id. 81 ; Boston & Albany E. E. v.
Pearson, 128 id. 445; Phillips v.
Blatchford, 137 id. 510; Eicker v.
American Loan & Trust Co. 140 id.
346; Burgan v. Lyell, 2 Mich. 102;

55 Am. Dec. 53 ; Butterfield v. Beards-
ley, 28 Mich. 412 ; Whipple v. Parker,
39 id. 369; WiUson v. Owen, 30 id.
474; Boisgerard v. Wall, 1 Sm. &
Mar. Ch. 404; Atkins v. Hunt, 14 N.
H. 205; Niven v. Spickerman, 13
Johns. 401; Skinner v. Dayton, 19 id.
513 (10 Am. Dec. 386) : rev. 5 Johns.
Ch. 351 ; Moore v. Brink, 4 Hun, 402 ;
6 N. y. Supreme Ct. 23; Eianhard v.
Hovey, 13 Oh. 300 ; Cochran v. Perry,
8 W. & S. 262; Hedge & Horn's Ap-
peal, 63 Pa. St. 273; Thomson's Es-
tate, 12 Phila. 36; Shamburg v.
Abbott, 112 Pa. St. 6; Cutler v.
Thomas, 25 Vt. 73 ; Chapman v. Dev-
ereux, 32 "Vt. 616 (9 Am. Law Eeg.
O. S. 419) ; Walker v. Wait, 50 Vt.
668; McNeish v. HuUess Oat Co. 57
Vt. 316; Hardy «. Norfolk Mfg. Co.
80 Va^ 404; Kimmins v. Wilson, 8
W. Va. 584; First Nat'l Bank v. Goflf,
31 Wis. 77; Werner v. Leisen,' 31
Wis. 169.

88

JOINT STOCK COMPANIES. § 73.

skill, .knowledge and integrity of every other partner.^
Hence, a sale of his shares by a member, the shares being
transferable, is not a dissolution.^ Death of a member is
not a dissolution, if such was the intent;, and -the character
of the association, in that the shares are transferable and it
is governed by officers, and is in the form of a corporation,
is evidence of such intent.^ It is obvious that much less
evidence is required to show such intent than in the case of
the purchase of an interest in an ordinary partnership.* And
the fact of such purpose is a question of fact for the jury.'

If the concern is composed of numerous members and is
governed by managers, there is no implied power in the
other members to act." And if the managers are to act as
a board, the individual assent of each is, as in the case of
directors of a corporation, not equivalent to an act of the
board. ^

§ 73, liability, and how enforced. — Although by the

law. of the state in which the association was orgahized,
actions against it must be in the name of the president or
treasurer, and that no action shall be brought against, the
members until execution against the company is returned
unsatisfied, it is nevertheless a mere partnership.' These
provisions relate to the remedy and are local, and outside
such state the personal liability of the members may be
enforced in the first instance.'

iPer James, L. J., Baird's Case, 7 skinner v. Dayton, 5 Johns. Ch.

L. R. 5 Ch. App. 735, 733. 351.

aCothran v. Perry, 8 W. & S. 263. STaft v. Warde, 106 Mass. 518; Bos-

3 Baird's Case, L. R. 5 Ch. App. ton & Albany R. R. v. Pearson, 138

735; Machinists' Nat'l B'k v. Dean, Mass. 445; and cases cited, aJl of

124 Mass. 81 ; Tenney v. New Engl, them being upon the New England

Protec. Un. 87. Vt. 64; Walker v. Express Co., organized under the

Wait, 50 id. 668 ; McNeish v. HuUess laws of New York. Contra, Fargo

Oat Co. 57 id. 316. v. Louisv. New Alb. & C. R'y, 10

< Machinists' Nat'l B'k v. Dean, 134 Biss. 373.

Mass. 81, 84. 'Taft v. Warde, 106 Mass. 518;

5 McNeish v. Hulless Oat Co. 57 Gott v. Dinsmore, 111 id. 45; Boston

Vt. 316. & Albany R. R. v. Pearson, 128 id.

« Greenwood's Case, 3 DeG. M. & 445. See Cutler v. Thomas, 25 Vt.

G. 459, 477. 73.

89

§ 74. NATURE AND FORMATION.

The members are individually liable in soUdo for the
debts as in an ordinary partnership;' although the articles
have not been complied with as between the partners, in
that but a small part of the contemplated capital had been
subscribed.^

Purchasers of shares become partners and are liable as
such;' and liable for notes issued after they become mem-
bers for prior debts.* In contributing inter se, those who
are insolvent or removed from the jurisdiction are not
counted."

§ 74. what constitutes membership. — A subscriber

to whom shares have been delivered is a partner, though he
never signed the deed or articles.' And even though certifi-
cates of stock have not been delivered to him, and he has
signed only the subscription paper and paid the executive
committee.* And though a share was assigned to one not
present at the rneeting, but who agreed to take it, although
he has not paid oi' performed other conditions subsequent.*
But a mere signing the subscription paper and paying is
not sufficient until the company is organized,' for otherwise
the first signer would be at once a member.' Signature of
the name to the subscriptioh and payment of assessments is
sufficient proof of membership, without showing by whom
the names were signed." And proof that the party was a

1 Carlew v. Drury, 1 Ves. & B. 157 ; * McConnell v. Denver, 35 CaL

Keasley v. Oodd, 2 C. & P. 408, n. ; 365.

R. u Dodd, 9 East, 516; Robinson's 5 -Whitman v. Porter, 107 Mass.
Case, 6 DeG. M. & G. 573 ; Hodgson 533. As to the personal liability of
V. Baldwin, 65 111. 533 ; Greenup v. purchasers of shares for antecedent
Barbee, 1 Bibb, 320 ; Frost v. Walker, liabilities for which their assignors
60 Me. 468 ; Whitman v. Porter, 107 were chargeable, see § 187.
Mass. 522, 534 ; Gott v. Dinsmore, « Perring v. Hone, 4 Bing. 28 ; But-
Ill Mass. 45 ; Skinner v. Dayton, 19 terfield v. Beardsley, 28 Mich. 412.
Johns. 537 ; Hess v. Werts, 4 S. & R ' Boston & Albany R. R. v. Pear-
361; Cutler v. Thomas, 25 Vt. 73; son, 138 Mass. 445 ; Frost v. Walker,
First Nat'l Bank v. Gofl, 31 Wis. 77. 60 Me. 468.

2Bodwell V. Eastman, 106 Mass. * Grady v. Robinson, 28 Ala. 289.
525. 9 Hedge & Horn's Appeal, 63 Pa.

s Machinists' Nat'l B'k v. Dean, 124 St. 278 ; Fox v. Clifton, 6 Bing. 776.
Mass. 81. M Frost v. Walker, 60 Me. 468.

90

JOBSTT STOCK COMPANIES. § 75

member of the executive committee is sufficient without
proving ownership of shares.^

If the shares are not transferable without the consent of
the directors, the assignee is not a partner until such consent
is had, and cannot maintain suit for an account.^ But a
mere affirmative provision that shares are assignable by cer-
tificate, which when filed enable the assignee to be a partner,
is for the convenience of the company, and does not pre-
vent a sale without that ceremony.'

§ 75. Clulbs. — A club or unincorporated association not
formed for purposes of gain or pecuniary profit is not a
partnership.^ The fact that they have common property or
a joint fund does not make them partners. As where a club
for moral and social objects sublets surplus room and thus
accumulates a fund.^ Or a musical club owns the instru-
ments, and requires resigning members to leave them as
common property.® This category includes unincorporated
associations for various purposes, as social or pleasure clubs,
political clubs, associations for mutual benefit, church as-
sociations, library associations, secret societies, lodges, and
the like.

As these associations are not formed for profit and loss,
if a contract is made in their society name, the associates
are not bound by it, unless it was authorized by them; but
all the officers or members who joined in making or author-
izing the contract are represented by the joint name, and
they are liable upon it, on the ground of principal and agent
and not of partnership.

iBodwell V. Eastman, 106 Mass. H. 113, and the cases cited through

535, 526. And see Taft v. Warde, 111 this section. The contrary expres-

Mass. 518; Pettis u Atkins, 60111. 454; sion in Babb v. Reed, 5 Eawle, 151

Doubleday v. Muskett, 7 Bing. 110. (28 Am. Dec. 650), has been limited

2 Kingman v. Spurr, 7 Pick. 235: in Ash w. Guie, 97 Pa. St. 493. For

Perring v. Hone, 4 Bing. 28. promoters of corporations, see § 89.

8 Alvord V. Smith, 5 Pick. 332. 5 Lafond v. Deems, 81 N. Y. 507.

4 St. James Club, 3 DeG. M. & G. SDanbury Comet Band v. Bean,

383 ; Andrews v. Alexander, L. E. 8 54 N. H. 534.
Eq. 176; Austin v. Thomson, 45 N.

91

§ 75. NATURE AND FORMATION.

Thus, in Richmond v, Judy, 6 Mo. App. 465, it was held that
where a committee to conduct a political campaign is sued for ad-
vertising bills, the members are liable only for the acts which they
have authorized. In Ash v. Genie, 97 Pa. St. 493 (39 Am. Rep. 818;
10 Am. Law Rec. 278), a committee of a masonic lodge, appointed
to erect a building and borrow for the purpose, who issue certifi-
cates of indebtedness, bind only the members who authorized or
ratified the act.

So in Burt v. Lathrop, 62 Mich. 106, the members of an associar
tion to resist the claims of a patentee, the conditions of member-
ship being an initiation fee and j;ro rata assessments, are not liable
personally for a contract of their officers in employing an attorney.

So in Flemyng v. Hector, 2 M. & W. 172, where a member of the
Westminster Reform Club was sued for the value of labor and
material supplied to the club, and the same ruling made.'

But those who made or authorized the contract are liable."

Not being a partnership, a member who has paid more
than his share towards the authorized common object can-
not have a bill in equity for an acfcounting.' And the com-
mittee can sue the members at law for their subscriptions,
which could not be done if there was a partnership.* And
a member who abstracts the funds may be prosecuted for
embezzlement, which could not be done if he were a partner.*

1 Devoss V. Gray, 23 Oh. St. 189. house. Contra, Cheeny v. Clark, 3

2 Ferris v. Thaw, 5 Mo. App. 279; Vt. 431.

Eichbaum v. Irons, 6 W. & S. 67 ; < Hall v. Thayer, 12 Met. 130. See

Blakely v. Bennecke, 59 Mo. 193 ; Caldicott v. Griffiths, 8 Exch. 898.

Lewis V. Tilton, 64 Iowa, 220 ; 52 Am. 5 Queen v. Robson, 16 Q. B. D. 187.

Rep. 436; Heath I!. Goslin, 80 Mo. The elder of a church cannot sue iu

310 ; 50 Am. Rep. 505 ; Ray v. Powers, his own name to secure a title to the

134 Mass. 23;. Cross v. Williams, 7 H. lot, but the members must join, or

& N. 675 ; Cockerell v. Aucompte, 2 C. part may sue on behalf of all if very

B. N. S. 440 ; Burls v. Smith, 7 Bing. numerous. McConnell v. Gardner,
; 705 ; Luckombe v. Ashton', 2 F. & F. Morris (Iowa), 373 ; Lloyd v. Loaring,

705 ; Delauney v. Stickland, 2 Stark. 6 Ves. 773, a masonic lodge. And a

416; Braithwaite v. Skofield, 9B. & suit against them must be against the

C. 401. members and not against the society

3 Woodward v. Cowing, 41 Me. 9, on its agent's contracts, Wilkins v.
an association to build a meeting Wardens, etc. of St, Mark's Church,

53 Ga. 851.
92

JOINT STOCK COMPANIES. § 76.

But the rights of members in the property and contracts
belonging to the club are similar to those of a partnership.
Thus, part of the members cannot sue the rest at law on
their contract with the association; ^ and it has been held
that a court of equity, when applied to wind up a club, would
deal with it as a partnership, and entertain the bill.^

§ 76. Granges and co-operatire stores. — There is a form
of association intermediate between a club, which is not
formed for profit, and a joint stock company which is,
namely, a co-operative store or grange, where the members
own the store and buy from it at cost prices with a percent-
q,ge for estimated expenses added, there being no design
to make profit, since the sales are to themselves alone.
But where the objects contemplate selling to the outside
world these bodies are deemed partnerships;^ the advantage
being to obtain for members alone the benefit of wholesale
purchases of miscellaneous commodities — the business be-
ing generally managed by an agent controlled by a board
of directors ignorant of trade, under constitutions which
have- frequently been found full and minute as to all the
rules fit for a debating society and wholly , silent on the
points most vital to pecuniary welfare.*

iMcMahon v. Eauhr, 47- N. Y. Atkins w Hunt, 14 N. H. 305; Far-

67. Dum V. Patch, 60 id. 294; Edgerly v.

2 Beaumont v. Meredith, 3 Ves. & Gardner, 9 Neb. 130; Smith v. Hol-
B. 180; Gorman w. Russell, 14 Cal. lister, 33 Vt. 695; Stimson v. Lewis,
531 ; 18 id. 688. Contra, Burke v. Ro- 36 Vt. 91 ; Tenney v. New Engl,
per, 79 Ala. 138. Proteo. Union, 37 Vt. 64 ; Heniy v.

3 Hodgson V. Baldwin, 65 111. 533; Jackson, 37 Vt. 431.

Manning v. Gasharie, 27 Ind. 399; '< Henry v. Jackson, 37 Vt. 431,
Beaman v. Whitney, 30 Me. 413; 485.

93

CHAPTER IV.

INCHOATE PARTNERSHIPS.

§ 78. Executory contract not a partnership. — An execu-
tory contract to form a partnership is not a partnership,
though it may ripen into one, by being what is commonly
called launched, that is, by carrying the agreement into
effect, and engaging in the joint undertaking; but the effect
and the agreement itself are two different things. Hence, an
agreement to become partners at a certain time does not
alone show partnership, even when that time has arrived,
so as to enable one party to compel the other to account to
him for profits earned, after a refusal to admit the com-
plainant; nor does it enable the one party to render the
other liable on contracts entered into by him before the
consummation of the partnership.

Hence, an agreement by A. witli C, that on the death af A.'s
partner, B., C. should become a partner, is not sufficient evidence
of partnership after such death.' An agreement that whichever
party procured a contract to build a railroad, all would be partners
in it, and one got it and refused to take in the rest, is not a part-
nership, but a mere executory agreement." Under an agreement to
form a partnership at a future date, where one of the parties pro-
ceeded to conduct the proposed enterprise for his own special benefit,
to the exclusion of the other, repudiation of the agreement gives
the other no claim for an accounting of profits, but only an action
at law for breach of contract.' Even an oral acceptance of an offer

1 Brink i;. New Amsterdam F. Ins. 418. And in Eeboul v. Chalker, 37
Co. 5 Eobt. (N. Y.) 104. Conn. 114, where A. and B. bought

2 Wilson V. Campbell, 10 111. 383 ; a stock of goods, and made a con-
Vance V. Blair, 18 Oh. 533; 51 Am. tract which recited an equal owner-
Dec. 467. ship in the goods, and their intention

3 Powell V. Maguire, 43 Cal. 11. to form a partnership to continue
See, also, Metzner v. Baldwin, 11 for three years from May 1, and pro-
Minn. 150 ; Doyle v. Bailey, 75 111. vided for the business, but A. re-

94

INCHOATE PARTNERSHIPS.

§78.

of partnership, without change in the business or money paid or
property turned over, is not conclusive of the formation of a firm.'

Where a person contracts for a lease of land and a growing crop,
for which he pays a certain sum, getting part of it from a third
person, under an agreement that the latter shall become his part-
ner, if the lessee acquires possession, this is no partnership, pos-
session never having been obtained, and the lessee can sue alone
for breach of contract by the lessor.^

So, where C. and W., in 1868, agrepd to form a partnership, to
farm the property of W. for the ensuing year, and W. died before
the beginning of the year, C. is not entitled to the possession of the
farm as surviving partner.' This, doubtless, would have been the
ruling, even had the contract stipulated for a partnership. iw pre-
sp-nti, if nothing had been done under it, for a surviving partner
takes the partnership assets to wind up the business and not to
carry it on.

So, an agreement made in August, 1873, between D. and H., that

fused to perform the contract and
proceeded to purchase more goods in
•his own name and for his individual
benefit, in an action to hold B. lia-
ble as a partner for the price of the
latter goods, it was held that there
had not been a partnership and a
dissolution ; but the partnership term
was not to begin until May 1, and
the remedy inter se for refusal to
perform would be an action for
breach of contract, and that B. could
not be held. The fact that they had
purchased goods does not advance
the beginning of the term, for they
could buy books, rent a store, etc.,
without beginning the partnership.
And in Metcalf v. Redmon, 43 111.
364, R. wrote to M., offering to go
into partnership in the purchase of
twenty horses, to be shipped to and
sold by R.. and M. accepted the offer,
bought twenty-seven horses and
opened books in the name of M. and
R. ; but sold the horses elsewhere,
without R.'s knowledge, and there

being a loss sued R. for an account-
ing. As the field of profit was R.'s
state, M. had not complied with the
terms, the partnership was not
launched, and the bill, therefore, was
not maintainable.

1 Hutchins v. Buokner, 3 Mo. App.
594. And see Gray v. Gibson, 6 Mich.
300.

^Snodgrass v. Reynolds, 79 Ala.
453. Where M. paid to the firm of
Schacher Bros. £3,000, to be invested
in a steamer, to be used in trade; M.
to have five per cent, on his money,
and a one-eighth share in earnings
of the steamer, and M. also agreed
within a year to pay £4,000 more,
and thereupon was to have a three-
sixteenths interest in all Schacher
Bros, business, including the steamer,
this agreement does not constitute
M. their partner in the steamer, the
£4,000 never haying been fully paid.
Meyer v. Schacher, 38 L. T. N. S.
37.

3Cline V. Wilson, 26 Ark. 154.

95

§ 80. NATURE AND FORMATION.

D. would cut timber from H.'s laud in partnership with him, was
said not to make them partners before the job was begun, so as to
render H. liable for goods sold to D. in October, 1873.' But pur-
chases before the partnership is formed may be ratified by the
others by disposing of the goods for their own purposes after learn-
ing that they were purchased on the credit of the supposed firm.''

§ 79. intention to form a partnership. — A mere in-
tention to form a partnership does not constitute one until
an actual agreement is made.' As where several persons
contributed a fund and employed one of their number to buy
a quantity of cotton, leaving the subject of sale for future
arrangement, they are merely tenants in common, and the
fact that they originally intended to sell and divide profits
does not make them partners*^ So, the fact that several
persons associated" themselves to run a line of stage-coaches
and had a general meeting, and debts were contracted on
account of the company, does not prove a partnership inter
se; hence one who paid the debts can sue the rest at law for
contribution.'

§ 80. Purchases in contemplation of a partnership. — So,
contracts made and liabilities incurred by individuals upon
their separate credit and on their own account, under an

1 Hall V. Edson, 40 Mich. 651. An Thebens, 19 La. Ann. 516. See Lowe

agreement by a fiim of spice dealei's v. Dixon, 16 Q. B. D. 455, where all

with a person to admit him to a share were held lig,ble.
in an investment, if his secret infor- 2 Pike v. Douglass, 28 Ark. 59 ;

mation of changes in the tariff ob- Fleshman «. Collier, 47 Ga. 253; West-

tained from a congressional commit- cott v. Price, Wright (O.), 220. An

tee prove true, is not a partnership, assumption of specified portions of

Strong V. Place, 51 N. Y. 627 ; 4 Robt. the debt by the members is not an

385. For other examples of agree-- assumption by the partnership.

ments between parties to form part- Mousseau v. Thebens, 19 La. Ann.

nerships to begin at a future date, 516.

before which time one of them makes 3 Lycoming Ins. Co. v. Barringer,

purchases in the name of all without 73 111. 230; Bourne v. Freeth, 9 B. &

the knowledge of the others, for C. '632 ; Reynell u. Lewis, 15 M. &W.

which they were held not liable be- 517.

cause the purchasing party had not * Baldwin v. Burrows, 47 N, Y. 199,

yet authority to bind them, see 207.

Davis V. Evans, 39 Vt. 182 ; Gaus v. 5 Chandler v. Brainard, 14 Pick.

Hobbs, 18 Kan. 500; Mousseau v. 285. •

INCHOATE PARTNEESHIPS. § 80.

agreement by which money or property so obtained shall,
when procured, be contributed to a partnership to be formed
between them, followed by the formation of the partnership
and putting the money or goods into it, does not make the
firm liable on these contracts, for the power of each to bind
the others does not begin until the firm is created; the
agreement being that each shall do certain things at his own
expense and then become partners.^ '

In Saville v. Robertson, 4 T. R. 720, several persons agreed to
' share the profit and loss of an adventure, but no one was to be re-
sponsible for anything ordered except by himself. The rest are not
responsible for the goods ordered by one, for the partnership does
not begin until the stocks are united.

In McGrar v. Drake (Ten'n. 1877), 5 Reporter, 347, an agreement
between Parker and Drake that Parker should buy McGar's hogs
and Drake should buy those of another person, and put them to-
gether in partnership when purchased, does not make Drake liable
on the purchase to McGar. So, also, Webb v. Liggett, 6 Mo. App.
345, where L. and D. were to furnish animals, tools and money to
cultivate hemp, and Gr. was to furnish the land, superintend the
crop as agent of L. and D., ship it to L. and D.'s commission mer-
chant, who was to pay him one-third the profits. L. and D. are not
liable for the rent of land leased by G. in his own name for the pur-
pose.

And in Valentine v. Hickle, 39 Ohio St. 19, each of three persons
was to buy cattle on his own account, and upon each lot of cattle
reaching the place of shipment the others could take an interest in it
or not, as they saw fit; if they did, the cattle were to become part-
nership property and to be shipped and sold on joint account; here
neither became liable on the other's purchases, although the cattle
were accepted.

In Coope V. Eyre, 1 H. Bl. 37, A., B., C. and D. agree that A-
shall buy and they shall have aliquot parts of the purchase. This is

iHeapv. Dobson, 15 0. B. N. S. 460; Baxter v. Plunkett, 4 Hjoust. 450;

Smith V. Craven. 1 Cr. & J. 500; Broake u Evans, 5 Watts, 196; Webb

Coope V. Eyre, 1 H. Bl. 37 ; Saville v. v. Liggett, 6 Mo. App. 345 ; Valentine

Robertson, 4 T. R. 730 ; Young v. v. Hickle, 39 Ohio St. 19 ; Heckert v.

Hunter, 4 Taunt. 583; Huttonv. Bui- Fegely, 6 W. & S. 139; McGar v.

lock, L. R. 8 Q. B. 831 ; 9 id. 573 ; Drake (Tenn. 1877), 5 Reporter, 347.
Vol. 1 — 7 97

§ 81. NATURE AND FORMATION.

not a partnership, for there is no agreement to join in a sale; it is
a sub-sale only.

In Hutton v. Bullock, L. R. 8 Q. B. 331, affirmed in 9 id. 572,
H., F. & Co., a London firm, were to " purchase " goods and send
them out on "joint account" of themselves and H., B. & Co., a
firm at Rangoon, each firm to charge a commission, one for buying
and the other for selling. Plaintiff, who sold the goods to H., F.
& Co., had no knowledge of the interest of H., B. & Co., and it
was held could not' charge them as undisclosed principals, the
agreement not being to purchase on joint account, but to ship on
joint account.

In Gouthwaite v. Duckworth, 2 East, 421, B. & P., partners,
being indebted to D., all three agreed to join in buying and selling
goods, B. & P. to buy, pay for and sell them and remit the proceeds
to D., who should deduct the amount of his debt and share profit '
with B. & P. All three were held liable to pay for goods bought
by B., on the ground that the purchase was for the adventure and
the adventure began with the purchase.' And in Saufley v. How-
ard, 7 Dana, 367, H. and A. agreed to share profits of sales of goods
to be bought by A. on his own credit, and A. bought, paying by a
note in the firm name, and H. received the goods in boxes marked
in the firm name, and both were held liable; and the provision that
A. was to buy on his own credit was regarded as a secret restriction
on liability.

§ 81. What are not in futnro. — If, however, the contract
of partnership either expresses an exi3ting association, as
distinguished from an executory agreement, or contemplates
continuous proceedings to be begun immediately for the
joint benefit, the intention is to create a partnership in pre-
senti and not one infuturo.

Thus, a recital that the parties " have entered " into a partnership,
and fixing no time for its commencement, has been Kgarded as in-
tending an existing partnership. The facts in the case, however,
showed that the parties actually acted as partners.'

In Aspinwall v. Williams, 1 Oh. 84, by the articles of partner-
ship to operate a distillery, each partner was assigned the perform-
ance of certain duties, at joint cost, in order to put the partnership

' This case is very close. See, also, ^ingraham u. Foster, 31 Ala. 133.
Everitt v. Chapman, 0 Conn. 317.

INCHOATE PARTNERSHIPS. § 81.

into operation. Thus, one was to build tlie distillery at joint cost,
and the rest to furnish stills, worms and goods; there was no
agreement as to the cost of any part, but that each was to he owner
of the whole equally. They were held to be partners at once and
not from the commencement of business, and all liable on a note
made by one in the firm name.'

In Lucas v. Cole, 57 Mo. 143, where both parties who had agreed
to become partners were held liable for the purchase of goods by
one on behalf of both for the purpose of conducting the partner-
ship, the court, without saying as in the above case that the part-
nership had already begun, placed their ruling on the ground that
business preparatory to the business of the partnership binds both
the partners.

So in Atkins v. Hunt, 14 N. H. 205, subscribing at a meeting
articles of association for trading called The Farmers' and Mechan-
ics'Store, which articles prescribed that the business should be
done by a majority of those present, constituted a present partner-
ship or actual existing reality, and not a proposition to form one.
The statute, however, provided that each subscriber should be a
partner.

In Adams Bank v. Eice, 2 Allen, 480, A. said to B. that he
needed a partneif so that in case of his death there should be some
one to close up the business, and proposed to take B. in, paying
him $1,500 the first year and a share of profits thereafter, and an
agreement was executed accordingly, stating that the parties had
this day formed a partnership as A. & Co., and sales were made and
drafts drawn in the firm name, and each acted as a full partner; A.
having died within the year, B. was held to be his surviving part-
ner, although receiving a fixed sum.

In Beauregard v. Case, 91 U. S. 134, B. was to lease a railroad,
and he and M. & G. were to put in not to exceed |150,000 each,
and run it until the profits repaid M. & G. their contributions, after
which the profits would be divided. It was held that the post-
ponement of division of profits did not prevent its being a present
partnership, and liable for B.'s overdrafts on a bank to raise
money to .operate the railroad. ,

In Drennen v. London Assur. Co. 113 U. S. 51, A. was to be ad-

1 See, also, Noyea v, Cushman, 25 Mich. 167, analyzed under the next
Vt. 390, which is very similar to section,
this; and Kerrick v. Stevens, 55

99

§ 82. NATURE AND FORMATION.

mitted into a business on tlie terms that the company would be
incorporated and he should pay into the firm $5,000 for its use,
which was to be put into the corporation, but no change in the
name or character of the firm should be made until the corpora-
tion was formed. This was held to mean that A. was not to act
for or have an interest in the property until the corporation was
formed.

In Haskins v. Burr, 106 Mass. 4S, defendant, desiring to secure
plaintiff's services in his factory business, and plaintifi^, desiring to
secure an interest therein, made an agreement reciting these facts,
and agreeing that plaintiff should be employed at a certain salary
and should give his notes for a certain sum; that if certain mort-
gages on the property were paid out of the profits, and if the notes
were paid, the defendant would convey one-half of the business to
the plaintiff. Before the notes or mortgages were paid, the de-
fendant sold the property and thus incapacitated himself from ful-
filling the contract; plaintiff thereupon claimed an accounting as
partner from the beginning. It was held that his remedy was at
law, for breach of contract, for the agreement was wholly execu-
tory and he had no joint property in the capital or lien on the
profits.

§ 82. same. — And the fact that the present tense or

future tense is used in the articles will not be allowed to control
a manifest purpose.

Thus, in Kerrick v. Stevens, 55 Mich. 167, the defendant was by
the articles to furnish money and the others to do work in putting
up a factory in which to manufacture a patented device, con-
tributed by one as his capital, and when the factory was completed
all were to be equal partners; and in an action before its completion,
for the price of machinery furnished for the factory, where some of
the defendants denied the partnership, it was held that to determine
when the partnership began "the purpose must be derived from
the nature of the agreement and not from the technical meaning
of words as present or future, standing alone." It is quite proper
to use future words as to the interest to be held in future property.
It would be an " anomaly to have capital paid in and. expended
without any partnership existing."

And in Goddard v. Pratt, 16 Pick. 412, a member of P. & Co.
having died, several persons agreed to buy out his interest in P. &
Co. and to be interested in the profits, the surviving meiiibers of P.

100

INCHOATE PARTNERSHIPS. § 83.

& Co. to get tlie concern incorporated and then a copartnership
to be formed; but it was held that the parties became partners,
at least from the time of payment, and that the agreement was not
executory. .

In Vassar v. Camp, 14 Barb. 341,' three partners agreed to convey
to four other persons a half interest in the firm, and give them
half the net profits, such profits to be applied to paying for the
latter's shares of the business, and at the end of five years to con-
vey the half interest, one-eighth to each, profit and loss to be
shared. Here was a right to share profits and to use the capital,
and an inchoate interest in the capital, and it was held to be a pres- x
ent partnership.

§ 8 3. Conditions precedent. — If the performance of certain
things are conditions precedent to the existence of the part-
nership, the parties are not partners until these are per-
formed.^

In James v. Stratton, 32 111. 202, W. and S. were to buy cattle
on joint account, and W. failed to furnish his share of funds, and
S. borrowed the money, paid for all the cattle and shipped them in
his own name, and a creditor of W. levied on his supposed interest
in "them; but it was held there never had been a partnership, and
W. had no interest.'

In Napoleon v. State, 3 Tex. App. 522, N. and R. agreed to be-
come partners, with equal capital, in selling confectionery at a
picnic, N. to buy the stock and manage the business; R. paid
his share of 'the capital to N., who abandoned the enterprise and
kept the money, and it was held that no partnership was consum-
mated, and, therefore,- N. was liable for embezzlement.

In Hobart v. Ballard, 31 Iowa, 521, plaintiff agreed to buy an in-
terest in a business for $1,500, of which he paid $1,295; but the
terras were that he was not to share profits or be an acting partner
until full payrhent; and defendant having refused to let him be-
come a partner, he applied for a receiver, and it was held that these
facts were not sufficient to show a present partnership.

In Johnston v. Eichelberger, 13 Fla. 230, where A. sold to B.
one-half his stock of goods, B. agreeing to pay half the cost and

1 Affirmed on other points in 11 N. 138, 143; Metcalf v. Redmon, 43 III.
Y. 441. 264^ noticed fully (§ 78, note).

> Dickinson v. Valpy, 10 B. & C, 'See, also, Stevenson v. Mathers,

67 111. 133.
101

§ M. NATURE AND FORMATION.

charges to be incurred, not yet ascertained, in getting the goods,
and they were then to sell the goods as partners, it was held that
the property must pass before there is a partnership, and tha,t the
vendor could insist on payment first, and that slight circumstances,
attributable to courtesy and confidence, would not be deemed a
waiver of this condition.

In Fox V. Clifton, 6 Bing. 776, an advertisement inviting sub-
scriptions to shares in a company with a capital of £600,000, or
twelve thousand shares, on terms to be settled in a deed, was re-
garded only as an offer to form a partnership", and defendants
subscribing and paying the first instalment as an assent to the
terms. But as only seven thousand five hundred shares in all were
taken, and of those only two thousand three hundred paid the first
instalment, the defendants, who had never attended any of the
meetings or in any way interfered as partners, were held not bound
by the act of the directors in purchasing goods and employing
labor, for they had assented to be partners in a concern raising
£600,000 capital and governed by a deed never executed. The
directors, therefore, acted before they had any authority to biud
the defendants. See, also. Hedge & Horn's Appeal, 63 Pa. St. 273.

§ 84. Same. — But it seems that terms will not be treated as
conditions precedent unless so expressed, or in their nature such as
.to raise a presumption that they are so.

Thus, in Ejurant v. Khener, 26 Minn. 362, a contract between the
firm of D. W. & Co.., the plaintiffs, and R., the defendant, that R.
should put up ice for the southern market and i^laintiffs should
furnish the money, and plaintiffs were, on getting south, to look
over the market and determine whether it was safe " to put up ice,
and they wrote to defendant to put up, ice but never furnished any
money, though ready and willing to do so had they been called
upon; and defendant sold the ice at a profit of $2,500, in an ac-
tion for an accounting of profits it was called a partnership in pre-
sently and not one to begin when plaintiffs sent notice to the
defendant to put up the ice, but, being contracted on Sunday, was
held void.

So where B. and H. wrote to B. and S. proposing that the latter
should consider a shipment of three hundred bales of cotton as on
joint account, and B. and S. wrote, consenting, and requested B.
and H. to designate and mark the cotton on joint account and ad-
vise them when it was shipped, this constitutes a contract, and the

103

INCHOATE PARTNERSHIPS. § feC.

request to designate and mark is not a condition imposed in the
acceptance, but a direction.'

In Guice v. Thornton, 76 Ala. 466, on an agreement to form a
partnership, each to contribute $2,000, a charge to the jury that
no partnership arises until the shares are brought together i^to a
common venture, and until then one party cannot bind the rest
by a note in the firm name, was held erroneous on the ground
that a partnership is deemed to be in presenti from the time of
signing the agreement, unless the terms of the instrument rebut
this presumption.

The conditions may be, subsequent ones by the terms of the
agreement, as in Grrady v. Robinson, 28 Ala. 289, where a partner-
ship to speculate in Indian lands was agreed on at a meeting of
the company, the number of shares were fixed, the interest of each .
member was allotted, and a specified sum required to be paid on
each, share, and each member was to relinquish to the company all
interest then held by him in the lands, and, on failure to comply,
his interest was to be forfeited. A person who had agreed to take
the shares assigned to him was held to be a partner as to third per-
sons who had purchased tracts from the company and now seek to
divest the title, although he had not paid his instalment or relin-
quished the interest held by him in the land.

§ 85. Oral conditions. — Whether oral evidence is admissible
to show that a contract of present partnership was not to go into
operation except upon a contingency depends upon the rules of
evidence. That an oral condition cannot be engrafted upon them
has been held," and such is doubtless the law. On the other hand,
parol evidence has been admitted to show that the articles were to
be held by one of the signers until certain debts were paid.' The
cases are not inconsistent, for delivery being part of the execution
of an instrument, the latter evidence went to show incomplete ex-
ecution and not to contradict.

§86. Waiving conditions Iby lanncMng. — Inasmuch as
acting together as partners may constitute a partnership,
though no written articles by agreement be entered into, so
actually beginning the joint business or launching it to-

iBrisban v. Boyd, 4 Paige, 17, 20, 2Dix v. Otis, 5 Pick. 38; Williams
See Saufley v. Howard, 7 Dana, v. Jones, 5 B. & C. 108.
367. s Beall v. Poole, 27 Md. 645.

103

§ 86. NATURE AND FORMATION.

gether, although something remains to be done or condi-
tions to be performed by one or all, will constitute an
immediate partnership inter se and as to third persons. This
is, as it were, converting a condition precedent into a condi-
tion subsequent. Thus, if partners agree to act together as
such without waiting for the signature of an absent one to
the articles, although they would not form a partnership
without him, they become partners inter se thereby.' So if
a partner has not done aU that he agreed to do, as where he
fails to contribute all he had agreed to put in, but they go
on, it becomes a partnership in presenti.^

In Cook V. Carpenter, 3i Vt. 121, B., of A. & B., partners in cat-
tle dealing, proposed to take C. into the firm, to which A. agreed,
provided B. and C. would furnish all the money necessary, and A.
agreeing to do the selling and guaranty sales. C. accepted this
proposition, but B. did not tell him that he and B. were<to furnish
all the funds. Stock was bought and all three signed the note,
and A. having had to pay it sued B. andC, claiming that there was
no partnership for want of a meeting of minds, and that he was
surety only. But it was held that as both A. and C. agreed to be
partners, and both understood that they were acting as such, and
actually proceeded in the business, neither ought to claim the con-
tract as he and not the other understood it, and in this dilemma
the rule must be applied that persons who agree to become part-
ners and actually act, are so, although they did not understand
the conditions of partnership alike.

In Gullich v. Alford, 61 Miss. 224, where G., who owned a mill
and owed A., agreed with A. to convey half the mill to A., the
debt being part payment, A. to repair the mill and G. and A. to
form a partnership, and pursuant to this they ran the mill together
for a time, dividing profits each day until A., being unable to pro-

1 Ontario Salt Co. v. Merchants' 2 stein v. Robertson, 30 Ala. 286,

Salt Co. 18 Grant's Ch. (Up. Can.) 293 ; Hartman ij. Woehr, 18 N. J. Eq.

551; McStea v. Matthews, 50 N. Y. 888; Palmer v. Tyler, 15 Minn. 106;

166, and on the same instrument, Coggswell u. Wilson, 11 Oregon, 871;

Hubbard v. Matthews, 54 N. Y. 43; Boyd v. Mynatt, 4 Ala. 79; Camp-

13 Am. Rep. 562. And see Wood v. bell v. Whitley, 39 id. 173 ; Jackson

Cullen, 13 Minn. 394, where one v. Sedgwick,! Swanst. 460. See Per-

partner had notsignedthe articles but kins v. Perkins, 3 Gratt, 864.
was held liable on a partnership note.

104

INCHOATE PARTNERSHIPS. § 88,

cure a conveyance from G., abandoned the partnership and sued G..
as for services, it was held that, having acted as partners and
enjoyed the fraits of the enterprise' in part as such, a conveyance
■could not now be claimed to be a condition precedent to full exe-
cution, and A.'s remedy was in equity for an accounting.

In Phillips V. Nash, 47 Ga. 218, a person- purchased an interest in
an existing firm, the agreement reciting a present and not a future
conveyance of the interest, although it was also agreed that an ac-
count of stock should be taken, and he should pay more if it
exceeded an estimated amount. They were held to be partners from
the time of conveyance, the law of sales governing the transaction.

In Thurston v. Perkins, 7 Mo. 29, partnership articles were exe-
cuted and the partners began to act as such, but gave it up after
six weeks, finding that they could not buy goods on credit. The
attempt to purchase was held an act of partnership, for the world
cannot look to see if they actually traded, and notice of dissolution
was held necessary to relieve one from liability on subsequent
contracts.

§87. payment for future partnership. — But mere

payment of money in anticipation of a future partnership
does not make the parties partners.^

So negotiations to admit E. as a partner were had, he to pay
£2,000 to the partners as premium and " & Co." to be added to the
old firm's name, and he paid the £2,000 and " & Co." was added to
the name, but E. did nothing else and refused to be a partner. This
is not sufficient to make him one, and he can prove in bankruptcy
as creditor for his advance.^ >

If all the acts proved are equally consistent with an intention to.
become a partner in a business to be afterwards carried on as with
that of au existing partnership, it is difficult to say that there is
evidence of authority in the rest to bind him.'

§ 88. Options to become partner. — Articles of partner-
ship or agreements are frequently made stipulating that
employee or others of the firm may, after a certain tin
become a partner, or may have aa option to be a parti

iHubbell V. Woolf, 15 Ind. 204; sPer Parke, J., in Dickinson v,
Hoile V. York, 37 Wis. 309. Valpy, 10 B. & 0. 1'38' 141 ; and this

'i Ex parte Turquand, 3 M. D. & D. was quoted and held to be the law in
339. Atkins v. Hunt, 14 N. H. 205.

105

§ 88. NATURE AND FORMATION.

from a prior period; or that one who loans money for the
business may on or before a certain date elect to be consid-
ered a partner from the beginning, letting the loan stand as
capital. In all such cases there is no partnership either
inter se or as to third persons until the election has been
made.^ But the agreement must be bona fide, and not for
purposes of concealment.^ •

In Sailors v. Nixon-JoHes Printing Co. 20 111. App. 509, three
persons, each owning a third interest in a husiness, made a con-
tract called " partnership," by which two of them were to carry
on the business at their own profit and loss and the other was
bound to become a partner in two years. This was held not to be
a partnership, because there was no community of profit and loss,
and the third owner is not liable for debts incurred during the two
years.'

Where A. advances money to B. to be used in his business and
takes notes for it, both agreeing that he might become an equal
partner and the money become his capital if he desired, and B.
carried on the business, taking more than half the profits and
crediting A. with interest, and A. expostulated, saying he was a
partner and should have profits and not interest, but B. continued,
to credit interest, upon A.'s bringing suit upon the notes, the
court can hold tha,t there is no partnership and the action lies.*

If, however, among actual partners there is a stipulation that
one might at the end of a year or other period elect to be an em-
ployee from the beginning, at a salary in lieu of profits, the exer-
cise of such election is not a dissolution and a new partnership,
but inter se the other partners are regarded as a firm from the be-
ginnmg."

I Ex parte Davis, 4 DeG. J. & Sm. -See Courtenay v. Wagstaff, 16 C.

533; Gabriell v. Evill, 9 M. & W. B. N. S. 110.

397, and Car. & Marsh. 358 ; Price v. s A partnership may be contracted

Groom, 3 Ex. 543 ; Howell v. Brodie, ' to take effect in the future or on

6 Bing. N. C. 44 ; Adams v. Pugh, 7 conditions. Avery v. Lauve, 1 La.

Cal. 150 ; Williams v. Soutter, 7 Ann. 457. And this is an enforcible

Iowa, 435; Moore v. Walton, 9 right. Handlin v. Davis, 81 Ky

Bankr. Reg. 402; Irwin v. Bid well, 34.

73 Pa. St. 344; Darling v. Bellhouse, < Morrill v. Spurr, 143 Mass. 257.

19 Up. Can. Q. B. 368; Hill v. Bell- « Bid well v. Madison, 10 Minn. 13
house, 10 Up. Can. C. P. 133.

106

INCHOATE PARTNERSHIPS. § 89.

§ 89. Promoters of corporations. — Associates joining to
form a future company, or the promoters of a corporation,
are not partners while engaged in taking the necessary pre-
liminary steps; provided, of course, they do not begin the
business, or contract or otherwise act as partners. They
never have agreed to be partners at all;' and if one lends
money or performs services on a contract with the res.t, he
can recover from them at law.^ And if the board of which
he is a member orders work done, he may be liable on the
principle stated in § 75;' but unless the contract was by
himself or an authorized agent, he is not liable merely from
the fact of membership in the committee.*

1 See, for example, BeynfeU v. been ruled in Holmes v. Higgins, 1
Lewis, 15 M. & W. 517; 1 Sim. N. B. & C. 74, bat this is clearly not so.
S. 178: Hamilton v. Smith, 5 Jur. N. s Doubleday v. Muskett, 7, Bing.
S. 33; West Point Foundry Ass'n v. 110.

Brown, 3 Edw. Ch. 284; Sylvester < Bailey v. Macaulay, 19 L. J. Q.

V. McCuaig, 28 Up. Can. C. P. 443. B. 73; Wood v. Duke of Argyll, 6

2 Hamilton v. Smith, 5 Jur. N. S. Man. '& Gr. 926. As to the liability
33; Sylvester v. McCuaig, 28 Up. of stockbolders in an abortive cor-
Can. C. P. 443. The contrary had poration, see §§ 4-6,

107

CHAPTER V.

BY HOLDING OUT OR ESTOPPEL.

§ 90. In general. — A person not actually a partner may
render himself liable as one by inducing people to act upon
the faith of representations by him that he is a partner.
Not being a partner, he is not liable generally, but only to
those whom he has misled, the principle applicable being
that of ordinary estoppel. These representations may be to
a particular person, whose conduct alone is influenced by
them; or they may be assertions intended to be repeated
and acted upon by third persons, as where defendant in-
forms A. that he is a partner, and A. informs plaintiff, who
supplies goods in reliance on the statement,^ as where he
gives the information to a mercantile agency; or the repre-
sentation may be still more general, as where he lends his
name generally by permitting it to appear in the firm style,
in which case he represents to the whole -world that he is a
partner.^

The representations need not be by himself, nor be abso-
lute assertions. If he knowingly permits others to hold
him out as a partner, or to convey the impression that he is
one,' or where appearances are held out justifying the be-
lief, or there is a failure to contradict an impression or un-
deceive a party, under circumstances calling upon the
defendant not to remain silent.

But while it is very difficult to distinguish between evi-
dence that goes to show a person to be in fact a partner and
that which proves a holding out, yet liability on the latter
ground proceeds solely on the ground of estoppel, and the

1 Per Williams, J., in Marty n v. SQui facit per alium, must face
Gray, 14 O. B. N. S. 824, 841. it himself. Punch,

2 Eyee, C. J., Waugh v. Carver, 3
H. Bl. 335.

108

BY HOLDING OUT OR ESTOPPEL. § 91.

plaintiff, therefore, must have relied upon^ the appearances,
and therefore have known them at the time of contracting,
which is not true of evidence tending to prove actual part-
nership. Furthermore, to constitute an estoppel, the de-
fendant must have been in fault by being a participant in
the misrepresentation; the rights of dormancy of a secret
partner may be destroyed by an unauthorized or accidental
divulging of his membership by others, but a person not an
actual partner cannot be made such by representations of
others of which he was not aware.

§ 91. PlaintiflF's knowledge necessary. — A person being
liable as a partner by holding out on the ground of estoppel
solely, is therefore not liable to one who did not know of
such holding out at the time of contracting. The holding
out must antedate the contract, and tlie plaintiff's knowl-
edge of and reliance on his alleged connection must be
proved as of that time, for otherwise the plaintiff was not
misled.*

Thus, where T.'s name was signed to partnership articles, with-
out his knowledge, by another, and he immediately withdrew it,
but all the cards, letter-heads and circulars with his name on them
were used until used up, and then his name was dropped, and it
was in controversy whether he knew and consented or not; but as
the plaintiff did not know of these representations, T. was held
• not liable as a partner."

iDe Berkom v. Smith, 1 Esp. 29; v. Jones, 7 B. Mon, 456; ■5;Valrath v.

Vice V. Lady Anson, 7 B. & C. 409, Viley, 2 Bush, 478; GriefE v. Bou-

more fully reported in 3 C. & P. 19; dousquie, 18 La. 'Ann. 631; Allen v.

Dickinson v. Valpy, 10 B. & C. 128, Dunn, 15 Me. 292 (33 Am. Dec. 614);

140, per Parke, J. ; Baird v. Planque, Palmer v. Pinkh^m, 37 id. 252 ; "Wood

■1 F. & F. 344; Pott v. Eyton, 3 0. B. v. Pennell, 51 id. 52;^ Fitch v. Har-

32; Martyn v. Gray, 14 C. B. N. S. rington, 13 Gray, 468; 8 Am. Law

824; Edmundson v. Thompson, 2 F. Keg. (N. S.) 688; Eimel v. Hayes, 83

& F. 564; Benedict v. Davis, 2 Mo. 200; Irvin v. Conklin, 36 Barb.

McLean, 347; Thompson v. First 64; Cassidy v. Hall, 97 N. Y. 159;

Nat'l Bank, 111 U. S. 530; Wright v. Cook v. Slate Co. 86 Oh. St. 135, 189;

Powell, 8 Ala. 560 ; Vinson v. Bever- Kirk v. Hartman, 63 Pa. St. 97.
idge, 3 MacArthur (D. G), 597, 601; 2 Thompson v. First Nat'l Bank,

Bowie V. Maddox, 39 Ga, 285; Hef- 111 U. S. 530.
ner v. Palmer, 67 111, 161 ; Markham

109

§ 92. NATX7EE AND FOEMATION.

J. conducted a shop for E., paying him a percentage on
sales. J.'s bank account was in his own name, and he overdrew
and the bank sued E. as a partner of J. The licenses to sell were
in E.'s name and his name was over the door; but the bank did not
know this and had never treated J. as being a partner of E. A
verdict for E. was held justified.'

The plaintiff may have known of the holding out from third
persons who have repeated to him the defendant's declarations to
them or related his acts.'

And even if there was a holding out, but plaintiff knew
the terms on which the defendant was employed, there
is no estoppel, for he was not misled.'

§ 92. doctrine of a holding out to the world is errone-
ous.^ There is a statement attributed to Lord Mansfield, that if
the holding consists in permitting the use of one's name in the
firm, this being a holding out to the whole world, there is a
liability to the whole world, even to those who may not have
known the fact.* This is entirely inconsistent with the doctrine of
the foregoing section, and rests on no principle, and must be con-
sidered as exploded. Nevertheless it had, for a time at least, some
influence upon the law, and there are some decisions (see the next
section) which may seem to incline that way.

It was these decisions that led Mr. Parsons, in his admirable work
upon partnership," to frame a most ingenious rule that a person
held out by his own negligence merely is liable only to those who
knew and trusted the appearance, but that a person held out by his
■own consent and connivance is conclusively presumed to be a part-
ner to all customers; and this rule was approved and adopted
from Mr. Parsons' work by the court of appeals of New York.'

1 Pott V. Eyton, 3 C. B. 33. Lord Mansfield seems to have' ruled

2Martyn v. Gray, 14 C. B. N. S. that Mrs. Axtell was liable be-

824, 841 ; Shott v. Streatfield, Moo. & cause- she permitted her name to be

Eob. 9. used as a member of the firm on bills

SAlderson v. Pope, 1 Camp. 404; sent to customers and in the business,

Pratt V. Langdon, 97 Mass. 97, 100 ; although the plaintiff did not know

but see Stearns v. Haven, 14 Vt. 540, of it. See the criticism of Mr. Smith,

546 ; and proof of subsequent acts in Waugh v. Carver, 1 Smith's Lead,

and declarations to third persons Caa. 507, and Wood v, Pennell, 51

were admitted in Poole v. Fislier, 62 Me. 53.

111. 181. 5 Pars. Part. p. 119.

*In Young v. AsteU 3 H. Bl. 343. sPoillon v. Secor, 61 N. Y. 456. In

110

BY HOLDING OUT OR ESTOPPEL. § 93.

§ 93. Criticism and suggestion. — If there is anytMng left
of Lord Mansfield's rule, it cannot be as broad as that adopted by
the New Yorkscourt. The rule there attempted to be laid down
might have been more plausibly stated, thus: The permitted use of
a person^ name in the firm style is proof of an actual and not
nflminaFpartnership. This renders such, person liable independent
of knowledge of the dealer, and yet does away with the groundless
and harsh conclusive presumption attending every kind of inten-
tional holding out, and with the mischievous vagueness of a distinc-
tion between holding out by consent and by negligence. Even
this suggested proposition is probably not the law, but it is not
easy to settle it conclusively, because, where a person's name is in
the firm, the plaintiff is sure of being aware of the holding out at
the time of the contracting, and hence the point would not be pre-
sented to the court for decision, and the dicpa are against it.'

The rule, however, in Poillon v. Secor ,is objectionable. Acts
and declarations of tha alleged partner before third persons and
unknown to plaintiff may be proved by him if they are evidence
of an actual partnership, but if insufBcient to prove an actual part-
nership he must show a knowledge of and a justifiable reliance upon
them on his part, at the time of giving credit to the firm, in order
to charge the person as partner." Moreover, the rule as stated
in that case seems to confuse evidence of an actual partnership,
and evidence of a holding out. The holding out may be inten-
tional as to the one or two persons without expending to others,
which the rule does not recognize; and if negligence can constitute
the estoppel, a holding out by negligence may be to the whole
world as well as to a few.

this case Secor allowed his name to 90, 94. The supreme court of the
be used in a smelting business with United States in Thompson v. First
Swan, a well known worker of ores, Natl. Bank, 111 U. S. 539, criticises
as Secor, Swan & Co., and it appeared Poillon «. Secor as the only Ameri-
on bill-heads, advertisements, etc. can case sustaining thedoctrine, and
The plaintiff gave credit to the firm says the notion arose from a state-
without knowing of the holding out ment attributed to Lord Mansfield,
or trusting it upon Secor's account, doubtless referring to the one in the
and Secor was held liable for the text,
above reasons, adopting Mr. Parsons' i See § 103' and § 1147.
rule. The same ruling was made in 2 Eitch v. Harrington, 13 Gray,
Pringle v. Leverich, 16 Jones & Sp. 468; 8 Am, Law Reg, (N.. S.)688.

Ill

§ 94. NATURE AND FORMATION.

§ 94. Prolbable explanation of the cases. — The proper
explanation of the cases given below lies rather in the re-
garding representations to the world generally of the fact of
partnership, such as using the name in the firm style or per-
mitting it to be over the door, and statements to or author-
izing commercial agencies to announce it, as evidence for
the jury of the fact Of partnership; and if it falls short of
proving that fact, the degree of publicity is evidence cor-
roborating plaintiff's prbbable knowledge of it at the time
he gave credit,' and with knowledge the usual principle ap-
plies, that in trusting the firm he is presumed to trust every
member of it.*

In Wheeler v. McEldowney, 60 111. 3^8, plaintiff sued A. and B.
on a note for work done by him signed by A. in the name of A. &
Co., and on proof that a title bond for the purchase of the mill had
■been given, made to A. and B., " composing, the firm of A. & Co.,"
with the knowledge of B., who made most of the payments and
frequently visited the mill, the plaintiff was allowed to hold B.,
although it was testified that he never had been a partner, on the
ground that he had held himSelf out as such to the public and for
reasons of public policy.

In Poole V. Fisher, 62 111. 181, M. had told a mercantile agency that
he was a partner, and F. at the time of purchasing the goods had
said the same, as had also M., and he was held liable on the debt;
the court say that he is liable to third persons generally.

In Thompson v. First Nat'l Bank, 111 U. S. 530, 537, it was said
that there might be cases where the holding out was so public and
so long continued that the jury could infer that the plaintiff knew
of it; and in Bo wen v. Rutherford, 60 III. 41 (14 Am. Rep. 25), it
was said that there must be such publicity to the holding out as to
afford a presumption that the creditor knew of it, otherwise he
must prove credit given on the faith of it.'

1 Dickinson v. Valpy, 10 B. & C. Wood v. Pennell, 51 Me. 53, And see
128, 140, where Parke, J., says, "if hereafter under Evidence,
it could be proved that the defendant ^ Booe v. Caldwell, 13 Ind. U ;
held himself out — not to the world, Rizer v. James, 2(5 Kan. 231. An i
for that is a loose expression, but to see Contract with one partner,
the plaintiff himself, or under such 3 And see Hefner v. Palmer, 67 II..
circumstances of publicity that the 161 ; Benedict v. Davis, 8 McLean,
plaintiff knew it and believed him to 347, 350.

be a partner, he would be liable."

113

BY HOLDING OUT OR ESTOPPEL. § 96.

A person representiag himself to a few third persons as a part-
ner is not such a holding out to the world as to render him liable
to one who did not know of the representations.'

In Casco Bank v. Hills, 16 Me. 155, a notice by surviving part-
ners that the business of the late, firm would for the present be
carried on in the same name by a designated one of their number,
who is duly authorized to settle all matters, was heW to make them
all partners by holding out to the would, and liable 'on a note in
the firm name made by such designated partner.

§ 95. Defendant's knowledge. — To estop a person to deny
that he is a partner, the act of holding out must be volun-
tary on his part. Merely being held out as partner by an-
other, without know^ledge of it, creates no liability; for no
estoppel arises where he is not in fault. The unauthorized
use of one's name by another, who does not know of it, or
not under such circumstances as to be called upon to con-
tradict the false appearances, is not a holding out by himself
and creates no estoppel to deny partnership. A holding out
must be by his own admissions, assent or acts. Thus, that
directors placed the defendants' names on the list of partners,
without their knowledge, and the plaintiffs trusted to those
named on the list, does not make the defendants in any way
liable.''^

§ 96. Acquiescence. — But no particular mode of holding
out is necessary. If he knowingly consents to being, repre-
sented as a partner, no matter how, he is liable;, and his
knowledge and consent may be inferred from^circumstances.'
And if he .is held out with his consent, or in his presence,
or after his culpable silence, he is liable to those misled
thereby.* What constitutes culpability in remaining silent,

1 Markham v. Jones, 7 B. Mod. 456 ; ler, 24 Mo. App. 76 ; Bishop v. George-
Vice u Lady Anson, 7 B. & C. 409; son, 60111. 484; Campbell «. Hastings,

5 C. & P. 19; Benedict v. Davis, 2 29 Ark. 512; Cassidy v. Hall, 97 N.
McLean, 347. Y. 159; Denithorne v. Hook, 118 Pa.

2 Fox V. Clifton, 6 Bing. 776 ; 4 M. St. 240 ; Benjamin v. Covert, 47 Wis.

6 P. 713 ; Hastings v. Hopkinson, 28 875, 384. And see Gay v. Fretwell, 9
Vt. 108, 114; Swann v. Sanborn, 4 Wis. 186; Pott v, Eyton, 8 C. B. 32.
Woods, C. C. 625 ; Be Jewett, 7 Biss. 3 Holland v. Long, 57 Ga. 36.

338; 15 Bankr. Reg. 126; Cole v. But- 4 Nicholson v. Moog, 65 Ala. 471;
Vol. 1 — 8 113

§ 97. NATURE AND FORMATION.

SO as to justify an inference of acquiescence, must depend
on the facts of each case.

§ 97. illustrations. — In Potter v. Greene, 9 Gray, 309, a

paragraph appeared in a newspaper, to which Greene was a sub-
scriber, stating that a company of gentlemen had bought the Saga-
more Thread Co.'s property, and that Greene was one of them, and
was to be in charge. The paragraph did not purport to be inserted
by the partnership, and it was held not admissible as evidence of a
holding out, though Greene never requested •& retraction. It was
doubtful whether he ever knew it; but the court said that if he did
see it, they were of opinion that he was under no obligation, legal or
moral, to give it a contradiction.

In Newsome v. Coles, 2 Camp. 617, three brothers had been part-
ners, after their father's death, as Thomas Coles & Sons, and dis-
solved; two of them going into a new business, and one continuing
the old business in the old name; due notice of dissolution was
published. A person who had never dealt with them gave credit
to the single brother, and on seeking to hold the other two as
partners, it was held that the latter were not bound' to take any
steps to prevent the use of the old name. (See § 100, infra.)

In Polk V. Oliver, 56 Miss. 566, 570, it is suggested that a person
knowing he is held out as a partner by another is not bound to
interfere; but that if he was once a partner, and his notice of with-
drawal was not very extensive, he cannot allow the world at large
to be ignorant of the unauthorized use of his name.'

In Wright v. Boynton, 37 N. H. 9, a person appointed as agent
to transact all business for the defendant, added a person as part-
ner of the principal without authority, and it being sought to hold
the principal for the acts of such person, it was held that the
principal was not exonerated by mere silence; that he must dissent
or give notice in a reasonable time, or assent will be presumed; and
that a person knowing he is held out as a .partner must publicly
disclaim it.

Craig V. Alverson, 6 J. J. Mar. 609 ; this comes to the plaintiS's tnowl-

Wood V. Pennell, 51 Me. 53; Kritzer edge, before selling, although the

I". Sweet, 57 Mich. 617. plaintifiE had not previously heard

1 And see Wood v. Pennell, 51 Me. that he was a partner, but there had

53. And so if a retired partner been no notice of "dissolution. Ben-

knowingly allows a reputation to ex- jamin v. QoVert, 47 Wis. 375, 384.
ist that he is still in the firm, and

114

BY HOLDING OUI OE ESTOPPEL. § 98.

In Thmsen v. Lathrop, 104 Pa. St. 365, tlie city directory gave
Domenec Ilimsen as a partner, whereas h,e was only manager, and
his son Domenec 0. Ihmsen was the partner; and the court said
this could not be received without evidence that he had seen it and
made no effort to have it changed; but that if he did object and re-
fused to pay for the directory until corrected, and a promise was
given to correct it the next year, the jury could give no weight to
the evidence.

In Rittenhouse v. Leigh, 57 Miss. 697, the defendant, on hearing
she was held out as a partner, remonstrated, and the firm promised
to withdraw her name; they broke the promise; but she was not
shown to have been aware of this, and the court said she was not
compelled to do more than make the request.

In Bowie v. Maddox, 29 Ga. 285, it was held that the fact that
defendant manifested surprise when told that he was regarded as a
partner is not competent evidence, for it is a mere declaration, by
acting, in his own favor.

§ 98. Prior unknown acts of holding out. — Estoppel being
the sole ground upon which a person can be charged as a
partner by holding out, and not the doctrine of a general
liability by a holding out to the world, independent of the
plaintiff's knowledge, it would follow tjtiat acts of holdihg
out, of which the plaintiff was unaware, cannot be admitted
even to corroborate the acts known and relied upon. The
plaintiff cannot show all the acts of the defendant and
prove afterwards what came to his knowledge.^

iRimel V. Hayes, 83 Mo. 200, 209. occasion Harrington made a similar;

Nevertheless several of the few cases i^ote, and Hill remonstrated and

in which this apparently, obvious made Harrington promise not to use

principle was brought directly to the ^is name so as to hurt him ; and this

attention of the court seem to have ^^s construed to mean not to use

disregarded it. In Smith v. Hill, 45 ^^^ name beyond an ability to mdem-

Vt. 90 (13 Am. Rep. 189), Harrington ^ify him, a risk that Hill ran and

gave a note signed Hill & Co. with- not those who received the paper,

out Hill's authority. Hill not being See, also, Sladeu Paschal, 67 Ga. 541.

his partner, and the payee took the In Conklin v. Barton, 43 Barb. 435,

note on the credit of Hill's name, plaintiff sued the defendants as part-

and it was held that he could prove ners for liquor sold by him to one of

prior acts of holding out by Hill of them. He failed to prove a partner-

which he was not aware at the time ship between the defendants, but

he took the note; as that on a prior proved acts of holding out prior to

115
I

§ 99. NATURE AND FORMATION.

§ 99. What constitutes a holding ont. — Owing to the fact
that the question of holding out is for the jury, there must
be conflicting findings upon very similar facts; and Mr.
Justice Lindley' has given an excellent example of this in
Wood V. Duke of Argyll, 6 M. & G. 928, and Lake v. Duke
of Argyll, 6 Q. B. 477. Nevertheless, the courts have fre-
quently passed upon the sufficiency and even relevancy of
evidence, and from these may be gathered some principles
as well as illustrations.

If a person is authorized by a firm to hold himself out as
their partner, and does so, this is a holding out by the part-
ners of themselves as his partner.'

The acts or language must reasonably import member-
ship in the firm and not merely an interest, for a person
may have an interest in the firm without being a partner
and have a right to announce that fact; the question is,
what does the language used import, and not what inter-
pretation the creditor placed upon it.

Thus, the name of a firm over a store, and used by a person man-
aging the store, may be evidence that he is their agent, but is, not
the slightest that they are his partners.* So where partners are
trying to bolster up the credit of a corporation and invite persons
to trust it by saying " we are the company," and that the firm
backed the company, and by other assurances of an interest in it,
whatever be the liability of thfe partners as guarantors or promis-
ors, this is no holding out of a partnership with the corporation.*
So in an action against two persons as partners in an opera house
to collect the amount of printing bills, neither the statements of
one of the defendants that he was going into the business, nor the
fact that he did an auction business in the same building and sold
tickets for the opera and was its treasurer, and announced as treas-
urer on the bills, are calculated in any degree to give the impres-
sion that he was a partner.' So advertising thus, "from the first

the sale. Evidence that both the de- i Partnership, vol. 1, p. 53.

f endants gave the bond to obtain a 2 Hinman v. Littell, 23 Mich. 484.

tavern-keeper's license was admitted ^ Gilbraith v. Lineberger, 69 N. Ca.

as corroborative of the acts of holding 145.^

out, although unknown to the plaint- * McLewer v. Hall, 103 N. Y. 639.

iff at the time of making the sales. * Parker v. Fergus, 43 111. 437.

116

BY HOLDING OUT OR ESTOPPEL. § 100.

instant B. has an interest in our establishment; we, trust with his
additional aid we shall be able to offer further inducements," etc.,
signed P. & Co., was held not to be a declaration of partnership,
because not implying that B. was a member of the firm; in fact,
the use of " we " and " our " and " his " seems to repel the implica-
tion.' ,

But the person need not be designated by name; a pertinent de-
scription, sufficiently identifying him, given by his authority, is
sufficient.'

The expression of an intention or willingness to become a part-
ner is not a representation that he is one.*

§ 100. — ^retaining the old name. — Where, after a duly-
published dissolution, the continuing partner retains the old
name with the acquiescence of the retired partner, with or
without the fact that the latter remains in the store, this is
sufficient evidence of a holding out to any person misled.''

It is to be remembered here, however, that when a firm is
dissolved by the death of a partner, this act of nature must
be taken notice of. by the whole world, and no notice of dis-
solution is necessary to release his estate from liability on
subsequent; contracts, nor does the continued use of 'the old
name by the surviving partners charge it or the executor
with liability. The doctrine of holding out has no appli-
cation; it is like the case of a person held out without his
knowledge. Nor if the executor continue business under

1 Vinson v. Beverldge, /3 MacAr- Dorn, 34 Ga. 813. Especially where

thur (D. C), 597. it is the principal part of the firm

2Martyn v. Gray, 14 C. B. N. S. name and is retained by consent,

834, 841.' Speer v. Bishop, 34 Oh. St. 598. That

3 Bourne v. Freeth, 9 B. & O. 633; merely keeping the old name over

Eeyneil v. Lewis, 15 M. & "W. 517. the door is not sufiicient of itself to

And see § 79, supra. gender the retired partner liable,

♦And see Notice of Dissolution. Boyd ■;;. McCann, 10 Md. 118. See
Be Ki-ueger, 3 Low. 66 ; 5 Bankr. Newsome v. Coles, § 97, supra. And
Reg. 439; State v. Wiggin, 80 Me. the facit that persons dealing with
449 , Tregerthen v. Lohrum, 6 Mo. business houses pay very little atten-
App. 576; Jordan v. Smith, 17 Up. tion to their letter-heads was re-
Can. Q. B. 590, with a change of marked upon by Campbell, J., in
name from S. & P. to S. & Co. ; Wait Hastings Natl. Bank v. Hibbard, 48
«. Brewster, 31 Vt. 516; Fleming u Mich. 453, 456.

-117

§ 101. NATURE AND FORMATION.

the old uame, for he cannot pledge the general estate unless
explicitly authorized so to do.
§ 101. language amounting to holding out. — So the

employment by the owner of a business of a person on a share of the
profits, and using " & Co." after the owner's name, was held a hold-
ing out as to the landlord, who believed the clerk to be a partner; '
but the clerk's use of '" & Co." after his employer's name may not
be a holding out of himself as partner.'

Taking part in the transaction of business in such a way or by
the use of such language as to lead one trusting the firm to believe
the defendant was a principal; ° or silence when introduced or re-
ferred to as a partner,* or as one who would be a partner after a
certain date, and goods were then sojd to the new firm to be paid
for after that date; * or using the word we, or speaking of the busi-
ness as his;' but such expressions alone are manifestly very weak
evidence, for they may naturally refer to the party's actual interest
as clerk or employee.'

In Ihmsen v. Lathrop, 104 Pa. St. 365, Domeneck 0. Ihmsen
was a partner and his father, Domeneck Ihmsen, was employed in
the firm as its manager, with power to sign the firm name to
checks, notes, etc., and this fact of his using the firm name with
the nearly, identical name was held to render him liable by holding
out on a note signed by him in the firm name, without other evi-
dence, although the exercise of a power to sign the firm name does
not ordinarily require the statement that the signer is not a part-
ner.

In Cassidy v. Hall, 97 N. T. 159, the facts that employees re-
ceive a share of the profits as compensation, have large powers, and
are exceptionally active in their efforts to place the concern on a

1 Brown v. Piokard (Utah), 9 Pac. * Barcrof t v. Ha worth, 39 Iowa,
Rep. 573 ; French v. Bai-row, 49 Vt. 463 ; Manson, Town of, v. Ware, 63
471. Iowa, 345 ; Burgan v. Gaboon, 1 Pen-

2 Edmundson v. Thompson, 3 F. & nypaoker (Pa.), 330 ; Lewis v. Alex-
F. 564. ander, 51 Tex. 5T8.

3 Sun Ins. Co. v. Kountz Line, 133 5 Bliss v. Swartz, 7 Lans. 187 ; 64
U. S. 583; Brugman v. McGuire, 33 Barb. 315.

Ark. 733 ; Sherrod v. Langdon, 31 6 Woodward v. Clark, 80 Kan. 78 :
Iowa, 518; Parshall v. Fisher, 43 Thomas v. Green, 30 Md. 1; Rippey
Mich. 539 ; Smith v. Smith, 7 Foster v. Evans, 33 Mo. 157 ; Gates v. Wat-
(N. H.), 344; Shafer v. Randolph, 99 son, 54 Mo. 585.
Pa. St. 350. 7 See Cassidy v. Hall, 97 N. Y. 159.

118

BY HOLDING OUT OR ESTOPPEL. § 103.

good basis with a view of ultimately buying it out, were held not to
be so inconsistent with their relation as employees as to constitute
them partners, though accompanied by declarations as to its finan-
cial responsibility, sufficient to constitute a guaranty.

In Town v. Hendee, 27 Vt. 258, employing one as agent to sell
only and not to buy, and writing to plaintiff that " whatever goods
were sold to such agent to be sold in the store with our goods he can
pay for out of the avails of the goods," does not hold out the agent
as authorized to buy in the i employers' names, but merely agrees
that the proceeds of their own goods may go to pay for the agent's
purchases for himself.

In Saufley v. Howard, 7 Dana, 367, the fact of receiving the
goods, f or'the price of which the note in suit was given, in boxes
inarked with a firm name composed of defendants' namesi, was held
sufficient evidence of a holding out.

In Humes v. O'Bryan, 74 Ala. 64, 83, it was sSd that the fact
that two persons were actually partners in a planting or fai'ming
business was a link in the evidence to prove tha,t one of them was
held out as the other's partner in a store.

§ 102. In tort. — Liability arising from holding out is not
confined to actions on contract, but may arise in torts, as
for deceit and false warranty in a sale of sheep, in which
sale defendant participated, ^ or for damages to a horse and
buggy let to the supposed, flrm.^

In Stables v. Eley, 1 C. & P. 614, a retired partner's name was
used by the continuing partners, and remained upon a wagon used
by them, and one of their drivers negligently ran over the plaint-
iff. The retired partner was held liable. Where is the estoppel in
such a case? Can the plaintiff show that he would not have been
run over but for the name ? That he was induced to sue a wrong
party does not seem sufficient, for it would apply to a holding out
after the accident.'

§ 103. Confers no rights inter se.— Nor does a holding
out confer any rights between the partners as against each

1 Sherrod v, Langdon, 21 Iowa, the doctrine that a name in the firm
518. style is proof of actual and not nom-

2 Maxwell v. Gibbs, 33 Iowa, 33. inal partnership, if such were the

3 The case might be sustained on law. See § 93.

119

§ 104. NATURE AND FORMATION.

other in relation to the property in the absence of liability
inter se for misconduct.

The nominal partner, who has paid some of the debts, is
a mere simple contract creditor of the person or firm whose
debts he discharged and has no lien upon the assets, but
must pursue his remedy at law like any other creditor.^
Hence, an employee who knows he is not a partner, but is
being extensively held out and trusted as such, is not enti-
tled to an injunction and receiver to prevent misapplication
of the funds, and for an adjustment of the affairs of the firm,
thougli he is liable for debts, for he has no lien.^ Hence
a partner, by holding out, has no lien, and therefore the
joint creditors obtain through him no priority in the distri-
bution of the supposed joint assets over individual creditors,
for there are rro joint assets.'

§ 104. Strangers, how afifected. — From the fact that the
liability is only to those who gave credit, it foUows that
persons who give no credit cannot take advantage of the
acts, nor are bound by them.

Thus, a creditor of one held out as a partner, but not
really such, cannot sustain an attachment on the goods of
the supposed firm against the debtor who has no interest in
them.*

In Barrett v. Smitb, 17 111. 565, S., a banker, under the name of
S. & Co., employed atelier, who gave bond for fidelity in his office
with defendants as his sureties. S. afterwards held out one W. as
his partner, and it was held that the defendants had a right to sup-
pose that a new firm had been formed and that they were no longer
answerable on the bond, and may therefore have relaxed their vig-
ilance over the teller's conduct, and were not liable. The force

1 Stone V. Manning, 3 111. 530 ; from the reach of creditors, an in-
Glenn v. Gill, 2 Md. 1. junction and receiver would be

2 Kerr' v. Potter, 6 Gill, 404 ; Nut- granted.

ting V. Colt, 7 N. J. Eq. 539. In the 3 Glenn v. Gill, 2 Md. 1 ; Kerr v.
latter case, however, p. 543, it was Potter, 6 Gill, 404, on the same part-
said that if there were evidence that nership.

the other partner had betrayed the ■'Allen v. Dunn, 15 Me. 393; 33

complainant's confidence and showed Am. Dec. 614; Partridge v. King.,

a disposition to withdraw the assets man, 130 Mass. 476.

130

BY HOLDING OUT OR ESTOPPEL. § 105.

of the case as an authority is, however, diminished by the fact
that W. was an actual partner.'

§ 105. Creditors, liow affected — Reputed ownership. — A

doctrine called that of reputed ownership arose under a pro-
vision of the English bankrupt law requiring property in
the possession, order or disposition of a person as the re-
puted owner, with the consent of the real owner, to be
treated as the property of such possessor. Under this doc-
trine, if an owner of property holds out others as his part-
ners, the creditors of the supposed firm can demand a
distribution of the property as if there were an actual part-
nership, and thus retain the priority on distribution which
they may have relied upon. We have seen that the osten-
sible partner may be regarded as the sole owner of the joint
property, "but not on distribution in bankruptcy under this
clause, for the possession of one partner is not inconsistent
with ownership in his firm, each partner being himself an
owner; but a sole owner who holds the goods out as belong-
ing to his firm makes a reputed ownership inconsistent
with the actual, and is held to the appearance he has cre-
ated.

In Ee Eowland, L. R. 1 Ch. App. 421, C. contracted to employ
R. on a salary and share of profits, tliey to become partners in the
future, and the business to be in the name of C. & Co. Both be-
came bankrupts. The property which belonged to C. was applied
to the joint creditors. The court say that reputed ownership has
nothing to do with the case; but in Ex parte Hayman, 8 Ch. D.
11, it is said that reputed ownership is the real reason for that
decision.

ila Somerset Potter Works v. have rights and are therefore sub-

Miiiot, 19 Gush. 593, 595-6, where ject to the correlative right of pri-

creditors of a firm deslriug to share ority ' of separate creditors in the

pari passu with the individual cred- separate estate. The contrary, how-

itors of one partner in his separate ever, veas ruled in a case equally

property, which would yield more strong on the facts as to the cred-

than the firm assets, offered to prove itors, though the person held out

that the nrm was nominal merely •„ knew he was no partner. Kerr v.

but the court said that as the parties Potter, 6 Gill, 404, and Glenn?;. Gill,

had assumed to be partners and dealt 2 Md. 1.
as such, persons dealing with the firm

121

§105.

NATURE AND FORMATION.

Where partners, by secret arrangement or by their articles, each
own a specific part of the stock, and there is no joint ownership,
the doctrine of reputed ownership applies, and, as to creditors
without notice, the assets will be regarded as joint. Hence a
mortgage by one of his interest, to secure an individual debt to his
partner, will be postponed to claims of joint creditors on distribu-
tion ; ' and so if the partners divide up the assets but continue to
hold and deal with them as joint property, subsequent joint debts
will be held superior on distribution to rights derived from the in-
dividuals."

But apart from this provision of the bankrupt law, the
doctrinQ of estoppel which applies to the partnership does
not apply to change the title to its property, and if the part-
ners are estopped, the individual creditors of the actual
owner are not estopped to obtain a hen upon the assets as
against the creditors of the business estabhshment or sup-
posed firm. Again, the creditors' priority arises out of and

1 Elliot V. Stevens, 38 N. H. 311.

2Moline Wagon Co. i). Bummell, 3
McCrary, 307; 13 Fed. Rep. 658; 14
id; 155. And see Birks v. French, 31
Kan. 238; HamiU v. Willett, 6
Bosw. 533; Grasswitt v. Connally, 27
Gratt. 19 ; Be Tomes, 19 Bankr. Reg.
36. This doctrine has also been
placed upon the ground of estoppel ;
creditors having relied not merely
upon the personal responsibility of
the nominal partners, but upon an
expected priority in the partnership
property, and on this ground the
actual partner and those claiming
under him, as his assignee for the
beneflt of creditors, have been held
estopped as against such creditors to
deny the partnership and the conse-
quent preference in the distribution
of its assets of those who trusted the
supposed firm. Kelly v. Scott, 49 N.
T. 595. And see HiUman v. Moore, 3
Tenn. Ch. 454.

In WiUiams v. Butler, 35 III. 544,

Mrs. A., living ' in Massachusetts,
gave her son general, povsrer of attor-
ney to manage and invest for her in
Chicago. He made a partnership be-
tween her and W. as W. & Co.,
vphich was carried on for two years
without her knowledge, she merely
taking such sums or profits as were
sent to her. X., an individual cred-
itor of W., having levied upon the
effects, W. and Mrs. A. confessed
judgments in favor of one R. and
others, and R. filed a bill asking to
have the proceeds of X.'s execution
applied to their judgments, Mrs. A.
filing an answer admitting the part-
nership and concurring iri the prayer.
The prayer was granted, on the
ground that ratification of the agent's
act established a partnership, and,
though generally ratification will
not relate back to cut off intervening
rights, yet for the protection of a
clearly superior equity it would
do so.

123

BY HOLDING OUT OB ESTOPPEL. § 107.

through the equity of each partner to have the debts paid
with the assets, and as a nominal partner has no such
equity, it follows that the business creditors have no prefer-
ence over the avowedly individual creditors of the actual
owner of the business independent of the provisions of the
bankrupt law.'

In Hillman v. Moore, 3 Tenn. Ch. 454:, a separate creditor had
obtained a legal right by levy on and sale of the property under a
judgment against the actual owner, and his title was held superior
to that of the reputed partnership's creditors. Kelly v. Scott, cited
in the previous section, is distinguished on the ground that the es-
toppel upon the partners reached those who claimed through them,
to wit, the assignee for creditors.

§ 106. Individual using a firm name. — Where a person
carries on business in a firm name without having a part-
ner, the same reason applies as in case of a nominal part-
ner, and creditors of the supposed firm have no priority
over his other creditors on distribution.^ And a partner
may make himself severally liable by holding himself out
as the only member of a firm. '

§ 107. Two firms using same name. — There is another

-species of holding out which occasionally occurs, as where

there are two firms of the same name andin the same kind or

a similar kind of business in the same locality. If the two

• houses are composed of the same individuals, they are in law

1 Swan V. Sanborn, 4 Woods, C. C. partner, and the mortgaged property

625 ; Glenn v. Gill, 2 Md. 1 ; Hillman as partnership property, from show-

V. Moore, 3 Tenn. Ch. 454 ; Graben- ing, as against subsequent attaching

heimer v. Rindskoff, 64 Tex. 49. And partnership creditors, that the mort-

see Kerr v. Potter, 6 Gill, 404. And gagor was not really a partner, and

for this reason an assignment for the that the mortgage is therefore the

benefit of creditors, preferring sepa- prior lien. Taylor v. Wilson, 58 N.

rate to business creditors, has been H. 465.

upheld by the actual owner in case 2 Scull's Appeal (Pa. 188Ci), 7 Atl.

of a nominal partnership. Whit- Rep. 588 ; Miller v. Creditors, 37 La.

worth V. Patterson, 6 Lea, 119. And Ann. 604; 2 Bell's Com. on Law of

a mortgagee of a person is not pre- Scotland, 635.

vented by the fact that the mort- SBonfleld v. Smith, 13 M. & W.

gagor holds himself out to other^ as a 405,

123

§ 107. NATURE AND FORMATION.

but one firm; but if there is a partner in one who is not in
the other, they are distinct fii-ms. In the latter case it may
be difficult to tell which is liable.'

The intent when the difference is known will govern, if
ascertainable; or if the controversy grows out of a transac-
tion in the scope of the business of one firm and not of the
other, or a purchase suitable to one and not to the other, or
if the avowed purpose of the contract points to one firm,
these facts wiU be final; ^ or if one of the firms has gone out
of business, that identifies the other as the debtor.'

If two persons have two kinds of business witk a dormant part-
ner in one of them, a note in the firm name has been held presum-
ably to be by the firm not containing the dormant partner.^

But it sometimes happens that a person is deceived by the name
and circumstances into believing be is dealing with the firm he is
not dealing with, and in such cases he can hold the other firrn.^

Where a father sold out his business to his sou, of the same name,
and advertised the fact, and a person who had never dealt with the
concern before, came to the store and sold, he cannot hold the father;
the old signs and letter-heads were used, but as he did not know
their significance, he was not misled by them, nor even if he knew
the father had once owned the store.' But to a former dealer
without notice of the dissolution, the father is liable.'

1 Lord Kenyon in the last century, 452 ; Mechanics' & Farmers' Bk. v.

in Baker v. Charlton, Peake, 80, de- Dakin, 24 Wend. 411; Re Munn, 3

cided that if several firms had the Biss. 442.

same name, a partner in one could a Jones v. Parker, 20 N. H. 31.

not show that a bill iu the firm name i Fosdick v. Van Horn, 40 Oh. St.

■was drawn on account of the part- 439.

nership in which he was not a sgpencerv. Billing, 16 Oh. St. 75;

member. In McNair v. Fleming, Gushing v. Smith, 43 Tex. 261 ; Beall

cited in Davison a Robertson, 3 Dow., v. Lowndes, 4 S. Ca. 258; Hastings

1 218, 229, half a dozen firms did busi- Nat. Bk. v. Hibbard, 48 Mich. 452,

ness in the same name, and it was 458 {dictum); Spencer v. Billing, 3

held that unless the holder of a bill Camp. 310; Swan v. Steele, 7 East,

can be shown to have knowledge of 210; 3 Smith, 199. And see Tarns v.

which firm drew it, he can sue them Hitner, 9 Pa. St. 441.

all. fi Preston v. Foellinger, 24 Fed.

2Elkin V. Green, 13 Bush, 612; Rep. 680.

Gushing v. Smith, 43 Tex. 361 ; Hast- ^ Elverson v. Leeds, 97 Ind. 336 ; 49

ings Nat. Bk. v. Hibbard, 48 Mich. Am. Rep. 458.

124

BY HOLDING OUT OR ESTOPPEL. § 109.

§108. Deceptive similarity of names. — So, also, if the
firms have designedly adopted names closely similar for the
purpose of misleading the public, the act of a common agent
of one may bind the other in favor of a person thus de-
ceived.

Thus where the individuals composing Adams & Co.,
widely and favorably known as an express company, formed
an additional partnership, composed mainly of the same in-
dividuals, in the name of Adams & Co.'s Western Express,
the similarity of names being with the design of obtaining
patronage, both firms employing a common agent, who con-
tracted in the name of the latter to transport gold for the
plaintiff, she supposing herself to be dealing vv^ith the former,
it was held she could recover for the loss of her gold from
the former.^

§ 109. Actions Iby and against nominal partners.— As the

nominal partner has no real interest in a claim belonging
to the firm, it follows that the actual owners recover in
their own names and should not Join the nominal partner.
In (ither words, the theory of a partnership by holding out
is one of liabilities and not of rights. In bringing an action
against the apparent partners, they are sued as if actual
members of the firm. The plaintiff generally does not know
whether they are really such or not. The issu6 is, are they
such towards him? Hence it is not.necessary to plead specially
that there is an estoppel or holding out, but the plaintiff
can sue the defendants as partners and prove they are such
by estoppel, and it is not a variance.^

Hence, of course, such defendant cannot put in evidence
the written contract by which he acted to show he was not

1 Adams & Co. u Brown, 16 Oh. trager, 60 loWa, 374; Campbell v.

St. 75. See, also, S. p. Gushing v. Hood, 6 Mo. 211; Eippey u Evans, i

Smith, 43 Tex. 361 ; Beall v. Lown- 23 id. 157 ; Young v. Smith, 35 id. 341 ;

des, 4 S. Ca. 268. Rimelu. Hayes, 83 id. 200; Reber v.

2 Nichols V. James, 130 Mass. 589; Columbus Mach. Mfg. Co. 12 Oh. St,

Bice V. Barrett, 116 Mass. 313 ; Fisher 175 ; Reed v. Kremer, 111 Pa. St. 482 ;

V. Bowles, 30 111. 396; Bragman v. Hicks u. Cram, 17 Vt. 449; Sherman

McGuire, 32 Ark. 733; Maxwell v. v. Kreul, 43 Wis. 33, 40.
Gibbs, 32 Iowa, 32; Hancoek v. Hin-

125

§ 109. NATURE AND FORMATION.

a partner; ^ certainly unless he also show plaintiff knew
of it.''

A creditor cannot hold both a retired partner, who is liable
by holding out, and an incoming partner on a contract with
the new firm. If the new firm retained the old name and he
had no notice of dissolution, he can hold the old partners or
the new, but not both; he must elect.'

1 Rimel v. Hayes, 83 Mo. 200. credit of the actual partners. Rimel

2 Plaintiff can testify on whose v. Hayes, g3 Mo. 200.

credit he did the work, but not that ' Scarfe v. Jardine, L. R. 7 App.
he -would not have done it on the Cas. 345.

126

CHAPTER VI.

ILLEGAL PARTNERSHIPS.

§ 110. As to persons. — A partnership may be illegal by
reason of disqualification of certain persons to engage in a
traffic permitted to the public generally. Thus, antago-
nists in time of war cannot become partners; that is, an
alien enemy cannot form a partnership with a citizen,^ un-
less domiciled here;^ nor a subject of this country, residing
in a country at war with this, even hiring an action, for the
fruits of the action might be remitted and so furnish re-
sources against this country; ' nor a neutral in such country,
for the same reason.* So, if a sheriff is forbidden to buy
county scrip, he cannot do it indirectly by forming a part-
nership, and the partnership is illegal.^

Where a statute forbids a lawyer or doctor, not licensed, to prac-
tice, the partnership between him and a licensed practitioner is
not illegal, if the former's share of the profits is not in considera^
tion of his practicing."

And a partnership between a lawyer and clerk, or physician and
apothecary, is presumably legal and can recover for services; for
non constat that the disqualified member will try cases or prescribe.'

' Evaus V. Richardson, 3 Mer. 469. B. 434. But see Dunne v. O'Reilly,

And see Brandon v. Nesbitt, 6 T. R. 11 Up. Can. C. P. 404, of Attorney

23 ; McAdams v. Hawes, 9 Bush, 15. and Clerk. But see Candler v. Can-

2 Per RooKE, J., in McConnell v. dler, Jac. 225; 6 Madd. 141, of anor-
Hector, 3 B. & P. 113. dinary partnership, not excluding

3 McConnell v. Hector, supra. the disqualified person from practic-
* O'Mealey v. Wilson, 1 Camp. 482; ing. Even receiving part of the

Albretcht v. Sussmann, 3 Ves. & B. profits as salary was called illegal,

323. See §"582. • as an evasion of the statutes, in

» Read v. Smith, 60 Tex. 379. Tench v. Roberts, 6 Madd. 145 ; Be

' 6 Scott V. Miller, H. V. J'ohns. 220. Jackson, 1 B. & C. 370; Re Clark, 3

7 Turner v. Reynell, 14 C. B. N. S. D. & R. 260; Hopkinson u Smith, 1

328; Hariand v. Lilienthal, 53 N. Y. Bing. 13; 7 Moo. 243. In the last

438 ; Swan v, Scott, 23 Up. Can. Q. three cases the .clerk practiced; but

127

§ 112. NATURE AND FORMATION.

§ 1 1 1. in public office. — An occupation may be legal

when carried on by an individual, but illegal for a partner-
ship on grounds of public policy; as where the duty is a
personal one.

Thus, there can be no partnership in a public oflSce. As in the
office of sheriff,' or of a district attorney; ° nor in the office of ad-
ministrator or executor, for he must retain exclusive control over
the assets, and such a contract invites misappropriation and abuse.'
If two executors traffic in the estate for joint benefit, no accounting
will be granted between them;* nor in the profits of a licensed
Indian trader.^ Attorneys at law are not officers, and a partner-
ship between them is legal. ^ The law that one sutler shall be ap-
pointed for each regiment, who shall be the sole sutler and shall
not farm out or underlet his privileges, was held not to prevent
his taking a partner, the object being to provide a sole responsi-
bility.' Nor does a statute forbidding a contractor with the gov-
ernment assigning his claim, prevent a partnership, for there is no
claim then to assign; nor the forbidding of a transfer of a contract,
for the object of this is to protect the government from being
harassed by multiplying those with whom it deals', and a memoran-
dum of division between the partners on dissolution does not vio-
late this provision.'

§ 113. As to occupation. — A partnership may be illegal
by reason of being formed to carry on an unlawful occupa-
tion. As for sharing in the proceeds of acts which are pun-
ishable as crimes or misdemeanors, as a partnership of
smugglers or highway robbers; or one forbidden by good
morals, whether there is or is not a statute making it penal,

had he not done so the rule of Cox v. i Jones v. Perohard, 2 Esp. 507;

Hiokman would have required 'the Qanfield d. Hard, 6 Conn. 180.

decision to be the other way, because 2 gee Gaston v. Drake, 1 Nev. 175.

not a partnership. That a lawyer 3 Forsyth v. "Woods, 11 Wall. 484 ;

may be partner with his client, and Seely v. Beck, 43 Mo. 143.

that the firm is formed to furnish *B6wen v. Richardson, 133 Mass.

ii'on to a railway company, of which 293.

the lawyer is director, will not ex- 5 Gould v. Kendall, 15 Nebr. 549. .

cuse an accounting of profits between 6 Warner v. Oriswold, 8 Wend. 665.

the partners, see Cameron v. Bick- ' Wolcott v. Gibson, 51 111. 69,

ford, 11 Ont. App. 53. 8 Hobbs v. McLean, 117 U. S. 567.

128

ILLEGAL PARTNERSHIPS. § 113.

as a partnership in a gambling establishment.' So of a
partnership to speculate on margins or in futures;^ or a
partnership to derive a profit frotn acts which are against
public policy; thus a combination among manufacturers or
dealers to regulate prices and stifle competition; ' or an agree-
ment to corner a stock.* But if the effect of the combina-
tion is not to prevent a healthy competition, the objection
to it does not exist.'

§ 113. Bidders on public contracts. — For a similar reason
a partnership between bidders on a public contract, if for
the purpose of preventing competition, is illegal.* But not
if the purpose of the partnership is to do the work, where its
object and necessary tendency is not to raise the price.'

A partnership to buy land at a tax sale has been held contrary
to public policy; not that a partnership cannot buy, "but where the
formation of the partnership is speculation at such sales.' A part-
nership to buy lands at a public sale by the United States, unlike
a combination to bid at execution sales, is not illegal when not
amounting to an agreeinent not to bid against each other.' A part-
nership to furnish recruits to the government was held legal, though
the articles provided that the partners should not come into coih-
petition or famish recruits below a fixed price, unless there is proof
that it is part of a conspiracy to' control prices or create a
monopoly."

In Powell V. Maguire, 43 Cal. 11, it was held that a partnership
formed to manage a ferry franchise, to be > obtained from the legis-

«

iBoggess V. Lilly, 18 Tex. 200; Coal Co. 68 Pa. St. 173; Gtaft v,

Watson V. Fletcher, 7 Gratt. 1. Or McConoughy, 79 111. 346.

lottery. Watson v. Murray, 33 N. J. < Sampson v. Shaw, 101 ■ Mass. 145,

Eq. 257; Sykes v. Beadon, L. E. 11 SFairbanku Newton, 50 Wis. 638;

Ch. D. 170. Fairbank v. Leary, 40 id. 687.

2 Faikney v. Eeynous, 4 Burr. <> King v. Winants, 71 N. Oa. 469 ;

2069; Petrie v. Hanway, 3 T. R. 418; Hunt v. PfeiSer, 108 Ind. 197.

Patterson's Appeal (Supreme-Ct. Pa. ^ Breslin v. Brown, 34 Oh. St. 565.

1883), 13 Weekly Notes of Cas. 154; But see Woodworth v. Bennett, 43

Wann v. Kelly, 5 Fed. Rep. 584; N. Y. 273.

Tenney v. Foote, 95 111. 99; Williams 8 Dudley v. Little, 3 Oh. St. 504.

V. Connor, 14 S. Ca. 631. » Piatt v. Oliver, 3 McLean, 367.

s Salt Co. V. Guthrie, 35 Oh. St. i" Marsh v. Russell, 66 N. Y. 388

666 ; Morris Run Coal Co. v. Barclay (rev. 2 Lans. 340).
Vol. I— 9 139

§ 114. NATURE AND FORMATION.

lature by one partner, was void on the ground that the names of
actual grantees should be known to legislature, since a contrary rule
might lead powerful combinations to procure vicious legislation in
the name of the least obnoxious of the parties.

§ 114. Contracts TOid by law; wai*. — So, where a class of
contracts is made void by law, a partnership for such traflBc
is void. Such are in many states partnerships to traffic in
intoxicating liquors; ^ or between a bidder for a city contract
and another person, where the city ordinance required all
persons interested to be named and forbade secret interests.^
The most numerous class of illegal partnerships are those
between citizens of belligerent powers or for trading in times
of war within the lines of railitary occupation, or with the
enemy or in the enemy's commodities; ^ as trafficking in
Confederate money.* In s.uch cases the property established
in the enemy's country, or used for such illegal traffic, is
subject to seizure and condemnation.' So of a partnership
in a voyage between ports interdicted by the government;*
or a partnership to trade with Indians; ' or in violation of
the navigation laws.'

In. Decker v. Ruckman, 28 N. J. Eq. 614, a partnership was
formed in New Jersey to plant oj^sters in Virginia, where it was
illegal for non-residents so to do; but the question of whether the
illegality would be recognized in New Jersey was not passed upon.

In Harvey v. Varney, 98 Mass. 118, the firm of H. & V. was
formed in part for the purpose of transferring to. it the property
of a former firm of A. & B., in order to hinder the creditors of the

1 Warren v. Chapman, 105 Mass. Coop. Ass'n, p. 568, not elsewhere
87; McGrunn v. Hanlin, 29 Mich. 476; reported.

Tucker v. Adams, 63 N. H. 361. « Stewart v. Mcintosh, '4 Har. & J.

2 Kelly V. Devlin, 58 How. Pr. 487. 333.

8 Saell V. Dwight, 120 Mass. 9 ; Dun- "! Gould v. Kendall, 15 Neb. 549.
ham V. Presby, 120 id. 285; Lewis v. « Sharp v. Taylor, 2 Phil. Ch. 801.

Alexander, 51 Tex. 578. In Durant v. Rhener, 26 Minn. 362,

< Anderson v. Whitlock, 2 Bush, it was even held that partnership

398; Pfeufler v. Maltby, 54 Tex. 454. formed on Sunday was void; and

6 The Cheshire, 8 Wall. 231 ; Prize contra if formed subsequently in

Cases, 2 Black, 635 ; U. S. v. Hallock, pursuance of an agreement made on

U. S. Supreme Ct. Book 17, Lawy. Sunday.

130

ILLEtlAL PARTNERSHIPS. § 11:5.

latter, and this agreement w.As lield valid between the partners,
though it would be voidable as to creditors.

That a partner is to receive interest on his capital in excess of the
per cent, allowed by the usury laws is not illegal or usurious. It
is not a case of the loan of money .^

§ 115. Illegal ventures of a legal partnership. — A part-
nership may be legal and yet some of its adventures, or part
of the receipts derived by it, or by some of the partners, be
illegal. As w^here the business of the firm is to act as agent
for others, and the partnership receives a bribe or commis-
sion from the pg,rties w^ith whom it or he transacts the
principal's business; ^ or from some other illegal source,
as where an association for holding horse fairs derives part
of its profits from selling pools,' or a firm doing a legal
business in war times engages in forbidden adventures in
the enemy's country.*

In Whitcher v. Morey, 39 Vt. 459, a deposition was objected to
because the law partner of the master in chancery who took it
acted as attorney for one of the parties in taking the deposition;
but the court overruled the objection on the grouncT that it would
not presume that the partnership extended to sharing each other's
fees in the matter.

If a statute makes illegal a business which had theretofore been
legal, but the business is continued nevertheless, this will not pre-
vent an accounting between the partners for the time during which
it was legal.*

§ 1 1 6. Title to partnership assets. — The title and prop-
erty rights of the partnership in its chattels is not in resist-
ing third persons affected by the fact that the partnership
business is illegal; hence, if the sheriff levy lipon the inter-
est of one partner in a stock of liquors, and left it in the
hands of one partner as receiptor, and afterwards brings re-
lease «. Fish, 58 Wis. 56, 105-7; * See §131.
Cunningham v. Green, 23 Ohio St. "Bennet v. Woolfolk, 15 Ga. 313.
296. As to partnerships carried on under

2ToiHd V. Rafferty, 30 N. J. Eq. 354; an illegal name, as where a statute
Northrup v. Phillips, 99 111. 449. forbids the usS of the collective ex^

»WillBon V. Owen, 30 Mich. 474. pression, " & Co.," see § 198.

131

§ 118. NATURE AND FORMATION.

plevin, the partners can set up the title of the partnership
as a defense.'

So, where a gambling firm bought and used a house for gaming
purposes, the surviving partner cannot impeach the title of his
partner's grantor on that ground; " but in MePherson v. Pemberton,
1 Jones' L. 378, it was held that persons w^ho formed a partnership
in order to hinder the creditors of one of them cannot jointly
maintain trespass q. c. f. against one who seized their goods.'

Third persons' rights against the illegal firm will be protected
where they are not particeps criminis. Thus, where a clergyman
is a secret partner, though prohibited by statute from trading, he is
liable to become a bankrupt in respect to the partnership con-
cerns.'

§ 117. Presumption against illegality.— Illegality will
not be presumed; thus, a partnership to buy one hundred
bales of cotton futures will not be presumed to be a gam-
ing contract.' And where a master in chancery takes a dep-
osition, his law partner acting as attorney for one of the
parties in taking it, the deposition will not be excluded un-
less it appears that the partnership extended to sharing each
other's fees in the matter, which will not be presumed.*

§ 1 1 8. Judicial accounting of illegal partnership. — Owing
to the difference between the authorities as to interfering
between law-breakers to compel payment when no account-
ing is necessary, and in order to define the boundaries of the
disputed territory, this subject will be treated in the follow-
ing order:

I. Accounting of the affairs of an illegal partnership.
This is not granted by the courts.

II. Accounting of legal investments of the proceeds of a

1 Tucker v. AdamS) 63 N. H. 361. sense of invalidity or failure of title.

2 Watson V. Fletcher, 7 Gratt. 1. Kinsman v. Parkhurst, 18 How. 289.

3 In case of the illegality of a < Meyinot's Case, 1 Atk. 198, 199.
patent in which a firm is formed to s Williams v. Connor, 14 S. Ca.
deal, the patentee not being the orig- 631.

inal and first inventor, an account- 6 WhitcTier v. Morey, 39 Vt. 459.
ing between the partners may be had ; And see Fairbank v. Leary, 4P Wis.
in such a case the term illegality is 637 ; and Cameron v. Bickford, 11
out of place, because used in the Ont. App. 53.

133

ILLEGAL PARTNERSHIPS, § 119,

' past and settled illegal partnership, the origin of the fund
being foreign to the controversy. This is granted.

III. Compelling settlement of balances when the parties
themselves have stated their own accounts, and nothing re-
mains but to pay over. This is disputed.

I.

§ 11 9. Refused between wrong-doers. — A bill for an ac-
counting and settlement of the partnership transactions of
an illegal partnership, or of the legal gains of a legal part-
nership, win not be sustained either for the purpose of ob-
taining a division of profits or contribution for losses and
expenses, for the taking of the account involves a dealing
with, and hence a recognition of, the illegal acts, but the
court will dismiss the bill and leave the parties where it
finds them.

The traditional case of the bill for an accounting between
two highwaymen, whether legendary or not, is far from un-
instructive, since it shows by a reductio ad ahsurdum that an
accounting of illegal gains cannot be had. I copy in the
notes the report from Pothier, omitting a few concluding
biographical lines on the counsel. The case is also gi\en in
Lindley on Partnership and Pollock on Contracts by G. W.
Wald.i

1 Everet v. Williams, 2 Pothier on in the said business with good suc-
Obl. 3, note, taken from Europ. Mag. cess, on Hounslow Heath, where they
1787, vol. 2, p. 360. The bill stated dealt with a gentleman for a gold
that the plaintiff was skilled in deal- watch, and afterwards the said
ing in several commodities, such as Joseph Williams told your orator
plate rings, watches, etc. ; that the that Finchley, in the county of Mid-
defendant applied to him to become diesex, was a good and convenient
a partner; that they entered into place to deal in, and that commodities
partnership, and it was agreed that were very plenty at Finchley af ore-
they should equally provide all sorts said, and it would be almost all clear
of necessaries, such as horses, sad- gain to them; that they went ae-
dles, bridles, and equally bear all ex- cordingly, and dealt with several
penses on the roads and at inns, gentlemen for divers watches, rings,
taverns, ale-houses, or at markets or swords, canes, hats, cloaks, horses,
fairs. "And your orator and the said bridles, saddles and other things; that
Joseph Williams proceeded jointly about a month afterwards the said

138

§119.

NATURE AND FORMATION.

This was held of a partnership in a lottery or a ganabling
business; ' although legal in the state where the contracts were
made, but a misdemeanor by the lex fori? So of a partnership to
corner a stock; it is a conspiracy rather than a contract;' or to
stifle competition, as a combination among dealers in a commodity,*
or among bi(iders for a public contract ;° or to trade in the insur-
rectionary states after intercourse has been forbidden; or in places
interdicted by congress."

The partner who has provided the funds can, however, recover
back any unexpended balance where the recovery is equivalent to
a revocation, but not if he advanced the whole fund on terms of
returning the balance.'

So if a tax collector, prohibited by statute from investing in
county scrip, forms a secret, partnership in order to obtain profits
thereby, indirectly, an accounting will not be enforced.' So where
the state engineer formed a partnership with W. and B. to bid on
a state contract in the name of W., which was illegal, and they

Joseph Williams informed your
orator that there was a gentlemen at
Blackheath who had a good horse,
saddle, bridle, watch, sword, cane
and other things to dispose of, which
he believed might be had for little or
no money; and they accordingly
went and met with the said gentle-
man, and after some small discourse
■they dealt for the said horse, etc. ;
that your orator and the said Joseph
Williams continued their joint deal-
ing together until Michaelmas, and
dealt together in several places, viz.,
at Bagshot in Surry, Salisbury in
Wiltshire, Hampstead in Middlesex,
and elsewhere, to the amount of
£3,000 and upwards." The rest of
the bill is in the ordinary form for
a partnership account. 3d Octo-
ber, 1725, on the motion of Sargeant
Girdler, the bill referred for scandal
and impertinence. 29th November.
Report of the bill as scandalous and
impertinent confirmed; and order
to attach White and Wreathcock,

the solicitors. 6th December, the
solicitors brought, into court and
fined £50 each ; and ordered that
Jonathan Collins, Esq., the counsel
who signed the bill, should pay the
costs. The plaintiff was oxecuted at
Tyburn in 1730, the defendant at
Maidstone in 1735. Pothier regards
the case as a tradition, as does also
the vice-chancellor in Ashhurst v.
Mason, L. R. 20 Eq. 225, 230.

1 Watson V. Murray, 28 N. J. Eq.
257 ; Watson v. Fletcher, 7 Gratt. 1.
And per Jessel, M. R., in Sykes v.
Beadon, 11 Ch. D. 170, 196.

2 Watson V. Murray, supra.
'Sampson v. Shaw, 101 Mass. 145.
4 Craft V. McConoughy, 79 111. 346;

Fairbank v. Leary, 40 Wis. 637.

»King V. Winants, 71 N. Ca. 469.

sSnell u Dwight, 120 Mass. 9;
Dunham v. Presby, 120 Mass. 285 ;
Stewart v. Mcintosh, 4 Har. & J.
233; Lane v. Thomas, 37 Tex. 157,

T Sampson v. Shaw, supra.

8 Read v. Smith, 60 Tex. 379.

134

ILLEGAL PARTNERSHIPS. § 120.

obtained the contract, and sold out tlieir bid at a profit before the
contract was awarded, and the money came into W.'s hands, B.
cannot compel W. to pay him his share; the firm itself being
illegal, none of the parties can obtain any rights under it.' So a
suit for dissolution and accounting of a partnership made on Sun-
day was not allowed, because the partnership was void.' So of a
partnership to trade with Indians, which is a violation of the stat-
utfes of the United States; a partner cannot claim damages or com-
pensation for a breach of the articles.' Where a Scotchman and
an American made a contract to export goods from England to
America in war time, provided peace was not declared, though the
goods did not sail till after peace was made, the court refused to
interfere between the partners on the ground of illegality.*

§ 120. same. — Where, on grounds of public policy,

there can be no partnership, as in the duties of certain pub-
lic offices, or in the trusts of an executorship or an admin-
istration contemplating a misuse of funds or breach of
trust, no accounting of the joint tfansaction would be de-
creed.

In Bowen v. Eichardson, 133 Mass. 293, two executors united in
misusing the trust funds by speculating in real estate for their own
benefit in the name of one of them ; the beneficiaries not being de-
barred by acquiescence or otherwise from claiming the advantage
thereof, the other's bill for an account and share of profits was not
sustained.^

But where a possible ineligibility of a partner arises from his
contract relations with third persons, but no abuse of trnst or
fraud appears, it seems that an accounting will not be refused.

Thus, in Cameron Vy Bickford, 11 Ont. App. 52, C. and B. agreed
together jointly to furnish iron for a railway and carry out a con-
tract to construct a road. The fact that C: had been the legal adviser
for the company and was one of the directors of the road will not
excuse B. from accounting.

iWoodworth v. Bennett, 43 N. Y. swbodworth «. Bennett, 43 N. Y.
273. 273, of a partnership in a state

2 Durant v. Rhener, 36 Mifin. 363. contract between an engineer of" the
' Gould V. Kendall, 15 Neb. 549, state and a contractor,
• Evans v. Richardson, 8 Mer. 469.

135

§1:21. NATURE AND FORMATION.

§ 121. part of the business legal and part not. —

Where part of the business is legal and part not, the court,
in an action to wind up, may ta,ke charge and settle that
part of the business which is legal, but not of the illegal part.

In Dunham v. Presby, 120 Mass. 285, P., of the firm of A., B. &
P., made an agreement with X., Y. & Z. to buy cotton in localities
beyond the lines of military occupation, which agreement his part-
ners ratified. After the purchase was made, and while the cotton
was at sea, X., Y. & Z. became alarmed for its safety on account of
news of the presence of a rebel cruiser, and P. thereupon bought
out their interests for $3,500. P. supposed that he had no authority
to buy for his partners, and that he was buying for himself. The
cotton arrived safely and realized over $17,000. P. accounted with
his partners for his original share, without disclosing bis purchase
of the other interests. A bill by the other partners to Compel P.
to account for such gains was held not to be sustainable because
they, arose from an illegal trading.

So, where one of the partners of a firm which acted as purchas-
ing agents bought at one price and turned in the property to the
customers at a higher price, equity will not aid the copartner in
procuring a division of these illegal gains; and the fact that the
innocent partner may be liable to the cheated parties is no reason
for allowing the accounting in anticipation of his loss' and before
it is actually sustained.'

Where part of a business consisted in keeping a gambling house
and selling liquors illegally, a large stock of which is on hand, an
accounting of the legal part was granted." And' if the business of
a partnership was made illegal by statute, but was conducted there-
after, an accounting for the time it was legal may be obtained, and
a precise allegation as to that time is not necessary, for the defend-
ants are presumed to know.'

But if the two classes cannot be separated, the accounting will
be refused.^

iTodd V. RaflEerty, 30 N. J. Eq. 2 Anderson v. Powell, 44 Iowa,
254 ; Northrup v. Phillips, 99 111. 449. 30.

A dictum in Woodworth v. Bennett, 3 Bennet v. Woolfolk, 15 Ga. 313.
43 N. Y. 273, seems to imply that 4 Lane v. Thomas, 37 Tex. 157,
an accounting has been cari'ied to where part of the profits were based
the limit of including illegal gains upon traflBo in Confederate money.
of a legal partnership.

186

ILLEGAL PARTNERSHIPS § 124.

§ 122. Motives. — Where the business is legal, but the
motives for forming the partnership are in fraud of the
rights of others, and hence voidable as to them, the part-
ners can be compelled to account to each other. As where
two persons form a firm for the purpose of hindering the
creditors of one of them, this fact is no defense to a bill for
settlement of the concern.^

II.

§ 1 23. Where the illegality is wholly a thing of the past. —

We may assume another proposition as being law, namely,
where the proceeds of the illegal transactions have all been
gathered in and divided; or if the proportionate ownership
is settled without division, but they have passed ,from the
possession of one partner into the joint fund and are again
invested in legal enterprises, so that the possession of any
one partner in whose hands they come relates back to a new
and legal starting point, the original illegal origin of the
fund will not relieve him from liability to account, being
entirely outside of the field of litigation.

III.

§ 124. When not wholly past. — But a much disputed ter-
ritory lies intermediate between these classes of cases; that
is, between those, on the one hand, where the court is asked
to take an accounting of illegal transactions, not merely to
enforce the final claims, but to ascertain what they are, and,
on the other hand, .those where there has been a complete
settlement of rights and extinguishment of all claims aris-
ing from the illegal enterprise and a new departure.

Where the partners have themselves come to an account-
ing of aU the illegal transactions, and have ascertained

1 Harvey «. Varney, 98 Mass. 118; maintaia trespass q. c. f. against
Brfgham v. Smith, 3 E. & A. (Up. one who seized their goods.
Can.) 46. Contra, McPheraon v. ^SeeAndersonv.Whitlock, 3Bush,
Pemberton, 1 Jones, L. 378, holding 398, 404r-5 ; and see the rest of this
that such partners cannot jointly chapter,

137

§ 125. NATURE AND FORMATION.

the balances and settled the concerns up to the point of
paying differences or dividing property, and the court is ap-
plied to to compel this final step, the authorities disagree,
some holding that the assistance of a court is recognizing
and enforcing a violation of law, and refusing to inter-
fere in any way; while others hold that as the illegality
only incidentally appears in the cause, public safety does
not require the court, after the illegal transaction is settled
and closed and the title to proceeds arising from it is alone
asserted, to permit one party to perpetrate the further
wrong of appropriating all. It may be noticed here, that,
while the latter class of cases do not seem to divide upon
the once valid distinction betwee'a what is malum in se and
what is merely malum prohibitum, no case calling for
decision has arisen where the fund arose from acts consti-
tuting a felony, or graver crime than gambling transactions
or dealing with a public enemy.

§135. Srooks T.Martin. — The leading and much-criti-
cised case granting relief in this class of cases is Brooks v.
Martin, 2 Wall. TO. In that case a partnership was formed
to buy up sdldiers' claims for land warrants, which was con-
trary to an act of congress. The plaintiff contributed all
the funds, and the defendant bought up land warrants, lo-
cated the lands and converted the warrants into lands, and
converted part of the lands into money and mortgages, and
had, by fraudulently concealing the value of the assets,
bought out the plaintiff's interest for a trifle, and this suit
was to compel an accounting and division.

The court said that, although in such a partnership a suit
by one partner to compel the other to contribute an agreed
share of the purchase money could not have been sustained,
" a large proportion of the lands so located had also been
sold, and the money paid for some of it and notes and mort-
gages given for the remainder. There were then in the
hands of the defendant, lands, money, notes and mortgages,
the result of the partnership business, the original capital of
which the plaintiff had advanced. It is to have an account
of these funds and a division of these proceeds that the bill

138

ILLEGAL PARTNERSHIPS. § 126.

is filed. Does it lie ia the mouth of the partner who has by
fraudulent means obtained possession and control of these
funds to refuse to do equity to his other partners because of
the wrong originally done or intended to the soldier? It is
difficult to perceive how the statute enacted for the benefit
of the soldier is to be rendered any more effective by leav-
ing all this in the hands of Brooks, instead of requiring him
to execute justice between himself and his partner, or what
rule of public morals will be weakened by compelling him
to do so. The title to the lands is not rendered void by the
statute. It interposes no obstacle to the collection of the
notes and mortgages. The transactions, which were illegal,
have become accomplished facts and cannot be affected by
any action of the court in this case."

The case of Brooks v. Martin relied upoa the earlier Eagliah
case of Sharp v. Taylor, 2 Phil. 801, where, on bill filed for a share
of freight money in the hands of one partner, earned in a trade
which violated the navigation laws, Lord Oottenham said: " Can
one of two partners possess himself of the property of the firm and
be permitted to retain it if he can show that in realizing it some
provision in some act of parliament has been violated? The
answer is that the transaction alleged to have been illegill is com-
' pleted and closed and will not be in any manner affected by what
the court is asked to do between the parties."

This case, however, has been much criticised in England. Thus,
in Sykes v. Beadon, 11 Ch. D. 170, there was an illegal association
in the nature of a partnership in a lotter3^ An action was brought
against its trustees for breach of trust, which had caused a loss ot
part of the fund. Jessbl, M. R., says: Lord Cottenham's reason-
ing in Sharp v. Taylor is inconclusive and unsatisfactory. " The
notion that because a transaction which is illegal is closed that
therefore a court of equity is to interfere in dividing the proceeds
of the illegal transaction, is not only opposed to principle, but to
authority, in the well-known case of highwaymen." He adds,
however, p. 197: " It does not follow that you cannot in some
cases recover money paid over to third persons in pursuance of the
contract."

§ 126. Explanation of Brooks v. Martin. — It is to be no-
ticed of Brooks V. Martin that the statute did not make the

139

§ 127. NATURE AND FORMATION.

title to the lands subsequently acquired void. Also, that the
suit did not dispute the amount of money received for
the illegally obtained warrants, but required an accounting
of the proceeds of the lands without disputing the correct-
ness of the consideration paid for them, much as if the lands
had been purchased by new advances by the plaintiff after
full settlement of the prior illegal transactions in warrants.
The fact that the controversy was over reinvestments of
profits into other forms was emphasized by the court, and
this fact is regarded as an important element in the com-
ments upon it.' And the cases in the next section which fol-
low it do so on the ground that the controversy could be
settled without reference to the illegal transaction, the court
not being compelled to inquire how the parties got the
money in dispute.

But the case has been deemed of further application in
so far as it sustains Sharp v. Taylor, 2 Phil. 801, supra, in
holding that after the close of an illegal transaction the part-
ner who is in possession of the ascertained profits can be
compelled to divide them.^

§127. Cases enforcing payment of balances. — Here,
again, no general rule can be devised which will reconcile
the cases, though in the majority of these cases an express
promise was made. Thus, where partners were concerned
in illegal stock jobbing which resulted in a loss, and one paid
all the debt and took security from the other for his share,

1 Gould V. Kendall, 15 Neb. 549, profits of a joint dealing on margin ;
and PfeufEer v. Maltby, 54 Tex. Willson v. Owen, 30 Mich, 474,
454. where, however, the association was

2 This view of that case would seem for holding horse fairs, involving
to be sustained by Pfeiflfer v. Maltby, selling pools, and the illegality was
38 Tex. 533, a case of trafiBcking with said to appear incidentally only,
the enemy (but Pfeuffer V. Maltby, 54 The diflSculty with this class of
id. 454, puts the case on the basis of cases is that they approach the con-
reinvestment of profits, under Brooks elusion that if the highwaymen in
V. Martin). Lewis v. Alexander, 51 Everet v. Williams invested theii
Tex. 578; also a case of prohibited profits in other forms, an accounting
traflic during the war; Attaway v. would have been granted, unless we
Third Nat'l B'k, 15 Mo. App. 577 ; distinguish between malum in se and
Wann v. Kelly, 5 Fed. Rep. 584, malum prohibitum.

140

ILLEGAL PARTNERSHIPS. § 127.

the security was held enforceable as a new contract not in-
fected by the original transaction.^

So where partners in dealing faro became indebted on partner-
ship account and one paid the debt, in consideration of which the
other gave him a note for his share of the losses, the payee was
held entitled to recover on the note."

So of a partnership to ship merchandise from Mexico to Texas,
with a view to obtain cotton during the war, and after settlement
one partner gave the others notes for their shares of the proceeds,
it was held that the' illegality does not attach to the notes and is no
defense to them. The court in this case, perhaps, had in mind the
old distinction between a contract which is malum in se and one
which is merely malum prohibitum, for they say that a contract
may be illegal without it being immoral or illegal to adjust profit
and loss."

In McGunn v. Hanlin, 29 Mich. 476, articles of partnership con-
templated the sale of liquors as part of the business, and on disso-
lution liquors were among the stock; the retiring partner authorized
his copartner to pay debts incurred in their purchase and charge
him the price of them in the settlement. It was held that when
sued for contribution he could not set up the liquor law in defense,
for that otily goes to buyer and seller, and does not prevent deal-
ings being included within grounds of estoppel or agency, and he
cannot repudiate the payment.

So in Belchers. Conner, 1 S. Ca. 88,, a partnership to buy and sell
slaves. The constitution, article 4, section Si, made contracts the
consideration of which is the purchase of slaves, null. _ A demand

1 Faikney v. Reynous, 4 Burr. 2069 ; tinction between contracts made
Petrie v. Hanway, 3 T. R. 418. with specific reference to direct aid
Wood worth v. Bennett, 43 N._Y. 278, in the actual prosecution of hostili-
admits the irreconcilability of the ties, and such as might be made in
cases. the ordinary transaction of social

2 Boggess V. Lilly, 18 Tex. 200. And and business life, though tending to
see Crescent Ins. Co. v. Baer (Fla. supply the wants of people in the
1887), 1 So. R. 318. hostile territory; also. between en-

3 De Leon v. Trevino, 49 Tex. 88. forcing an illegal partnership and
See, also, the query in King v. Win- adjusting the profit and loss after it
ants, 71 N. Ca. 469, 470; and in has been closed and the money
Pfeuffer v. Maltby, 54 Tex. 454, of a passed into other forms. See, also,
partnership to traflSc in Confederate Watson v. Fletcher, 7 Gratt. 1 ; Left-
money and cotton, where the dis- wich v. Clinton, 4 Lans. 176.

141

§129.

NATURE AND FORMATION.

for an accounting between the parties was sustained on the tiieory
that the liability to account was not founded on a contract the
consideration of which was the purchase of slaves, but -that its con-
sideration was the mutual covenants and promises of the partners.

§ 128. Cases refusing payment. — Nevertheless in this view
of Brooks V. Martin, that is in so far as it follows the case
of Sharp v. Taylor, it is in many states not law, and the
mere fact that a fraud or illegal: enterprise is completed will
not entitle the parties to compel a division.^

§ 129. Neglect to register. — Some states have a statute
requiring partnerships to record in some designated public

I Todd V. Rafferty, 30 N. J. Eq.
254; Woodworth v. Bennett, 43 N.
Y. 373, where the fund was all in the
hands of one partner. Stewart v,
Mcintosh, 4 Har. & J. 283, where the
proceeds of an illegal voyage were in
the hands of a third person, who re-
fused to pay it over. Patterson's
Appeal (Supr. Ct. Pa. 1883), 13 W. N.
bas. 154, where the proceeds of a
joint deal on a margin were in the
hands of one of parties, and an ac-
count had been stated, the balance
due acknowledged, and a promise to
pay made, but the court would not
enforce it. Hunt v. Pfeiffer, 108
Ind. 197, where a partnership is
formed to stifle competition in bid-
ding on a public contract, and obtains
the contract, and some of the part-
ners exclude another from it» bene-
fits, no action by him for a share of
profits will lie. Gould v. Kendall, 15
Neb. 549, where it was said that in so
far as Brooks v. Martin follows Sharp
V. Taylor, it can scarcely be consid-
ered authority. See, also, Dunham
V. Presby, 120 Mass. 285 ; Northrup v,
Phillips, 99 111. 449. There are other
cases upon this controversy which
do not involve partnerships, but these
I have not space to comment upon.

In Warren v. Chapman, 105 Mass.
87, where a firm made illegal sales
of intoxicating liquors; and the
buyer executed a note to one of the
partners in consideration that he
would pay the debt, the note was
held void, for the payee was an orig-
inal offender, and part of the con-
sideration of the note was his own
share of the debt, and this taints the
whole. This last expression would
seem to imply that had the note not
included the payee's share of the debt
it would not have been illegal. In
Tenney v. Foote, 95 111. 99, a note
made to a firm, part of the consider-
ation of which arose on contracts
of one partner without the other's
knowledge, for a commission in deal-
ing in options, was held void. In
Forsyth v. Woods, 11 Wall. 484, a
partnership in conducting the ad-
ministration of an estate was formed
betweep the administrator and an-
other, which is illegal ; a person who
went on the administrator's bond at
the request, of the firm had to pay,
and sued the firm for reimbursement,
claiming that he had paid a partner-
ship debt, since they were partners
in the administration, and it was
held that he could not recover.

142

ILLEGAL PARTNERSHIPS. § 129.

office the individual names of the partners, not making the
partnership illegal for non-compliance, but imposing, gener-
ally, a disability to maintain an action on contracts in case of
omission; or where the firm is defendant, relieving the plaint-
iff of the consequences of nonjoinder of a partner as defend-
ant. Such statutes have existed in California, Nevada,^ New
Hampshire and Upper Canada, and for one year in Ohio.

Any form of acknowledgment will satisfy the statute, none be-
ing prescribed.^ Where the statute in terms applies only to trad-
ing partnerships, any firm which buys and sells comes in this
category; as a partnership to print and publish a newspaper.'

The statute was held not to apply to an action by the partners
as individuals, not upon a partnership contract,^ nor to actions for
torts committed against the property of the firm;' nor to actions
not growing out of the partnership affairs, as where the sheriff,
having'levied upon property as belonging to a partner, leaves it in
the hands of a receiptor, and then replevies from him on his refusal
to deliver.'

The publication must be before the action ig begun and not
merely before trial, for beginning an action is part of the " main-
' taining " of it.' The statute is only matter in abatement, and
if an action is defeated for non-compliance, a new action lies
after the statement has been filed.* The statute does not prevent
one to whom the partnership assigned a claim suing upon it; the
assignee's title may be good although the assignment was made to
evade the statute."

1 Where the penalty is $1,000. St. though of little value as compared

1881, ch. 65, §§ 37-29. with the product, it would be.

2Fabian v. Callahan, 56 Cal. 159. ^McCord v. Seale, 56 Cal. 263.

3 Pinkerton v. Boss, 33 Up. Can. Q. » Ralph v. Lockwood, 61 Cal. 155.

B. 508, the court saying, p. 514, that STmoker v. Adams, 63 N. H. 361.

a firm niaking bricks on its own ' Byers «. Bourret, 64 Cal. 73.

land would not be within the statute, 8 Sweeney v. Stanford, 67 Cal, 635.

whereas if it purchase the clay, ^ Cheney v. Newberry, 67 Cal. 126.

148

OHAPTEE Vn.

PERSONS COMPOSING THE FIRM.

* § 130. Any person who has capacity to enter into con-
tracts can be a partner; hence this branch of the law of
partnership involves the general question of capacity belong-
ing to the law of contracts, except as somewhat modified in
the case of infants and married women when seeking to dis-
affirm.

ALIENS.

§ 131. The capacity of an alien to be a partner is the same
as his capacity to form any other contract. Any immunity
from liability to be sued enjoyed by the accredited and rec-
ognized minister of a foreign government applies to him as
a partner, if he engages in trade.' But war is a disqualifi-
cation of an alien's right to contract if he is a citizen of one
of the antagonists.'*

LUNATICS.

, § 132. As the contract of a lunatic with a person who is
not aware of his infirmity, if executed, binds him, and if
disaffirmed, while executory, is binding to the extent of re-
storing- to the other party an equivalent for what he has
parted with, it follows that a partnership contract with a
lunatic is valid to the same extent. And if a partner be-
comes a lunatic while the firm is in operation, it is merely
a cause for dissolution in a proper case and not a dissolution
per se; and, until dissolved, he has the rights and liabil-
ities of a partner.'

CORPORATION AS 'A PARTNER.

§133. Generally cannot Ibe a partner.— A corporation
cannot form a partnership with an individual or with an-

VMagdalena Steam Nav. Co. v. 2 See §110.
Martin, 2 E. & E. 94. 3 See § 581.

144

PERSONS COMPOSING THE FIRM. § 133.

other corporation. This results not from any principle of
partnership law, but from the nature of a corporation, and,
therefore, if the corporation is invested with power to form
such a relation the objection is removed. A corporation can,
in general, be bound only by the acts of its duly elected offi-
cers or agents; hence, as a partnership implies two princi-
pals, or an agent 'who is not appointed, and is not, at least in
a partnership of fixed duration, removable at will, such re-
lation violates this rule of corporations. So, if the statute
requires a corporation to make periodical statements of its
condition and debts, this cannot be done if another principal
has the power of creating them. So, if the statute limits
the amount of the indebtedness which a corporation may
incur. ^

In Van Keuren v. Trenton LocoDiotive &. Mach. Mfg. Co. 13 N.
J. Eq. 302, where a corporation and the plaintiff formed a partner-
ship, and after two years the corporation excluded the plaintiff from
the business and took the property, it was held that the want of
corporate power was no defense to a suit for an accounting and in-
junction, and that the services and property of plaintiff could not
be thus taken away from him. In French v. Donohue, 29 Minn.
Ill, it was held that such a partnership could recover on obliga-
tions made to the firm, and the debtor could not repudiate them;
the want of capacity does not concern him. In Bissell v. M. S. &
N. I. R. R. Cos. 22 N. Y. 258, it was held that ultra vires was no
defense in an action by an injured passenger against two railroad
corporations which had formed a partnership. In Gunn v. Central
R. R. Co. 74 Ga. 509, a railroad company attempted to form a part-
nership with a person to run a line of boats, but this was held to
be ultra vires, and hence an action of tort would not lie against the
corporation for acts of the firm.^

1 Whittenton Mills v. Upton, 10 (N. H.) 18 Am. and Eng. E. R. Gas. 94 ;■
Gray, 582 ; Hackett v. Multnomah Gunn v. Central R. R. Co. 74 Ga. 509.
R'y Co. 12 Oregon, 124 ; Marine Bank 2 Yet three railroad corporations
V. Ogden, 39 111. 248; New York & were said to have formed a partner-
Sharon Canal Co. v. Fulton Bank, 7 ship in Railroad Co. v. Bixby, 55 Vt.
Wend. 412, 414 ; Pearce v. Madison & 235 ; and a corporation and an indi-
Indianapolis R. R. 21 How. 441 ; State vidual were said to be partners in
ex rel. Pearson v. Concord R. R. Co, Catskill Bank v. Hooper, 5 Gray, 574;
Vol. I — 10 145

§ 134. NATURE AND FORMATION.

§ 134. May receive capacity. — It results from the reasons
above given against a corporation being a member of a
partnership, that if it has been granted capacity it may be-
come a partner.

In Butler v. American Toy Co. 46 Conn. 136, the preamble in the
company's charter recited the death of a member of a firm which,
with another firm, constituted the partnership called the American
Toy Co., and that the corporation was formed to enable the surviv-
ing partners and the repi'esentatives of the deceased to continue the
business for which the corporation was formed. This was held by
necessary intendment to authorize the corporation to take the place
of the firm as a member of the American Toy Co.

In Allen v. Woonsocket Co. 11 R. I. 28S, it was held that a part-
nership at will between a firm and an individual, where the individ-
ual was to have no control as partner, and no stockholder's rights
were imperiled because one person owned all the stock, was not
ultra vires. But the suit was for an accounting between the part-
ners, which would probably have been granted even if the contract
were ultra vires.

In Catskill Bank v. Gray, 14 Barb. 471, a corporation formed for
the manufacture of iron leased its mills for five years to Gray by a
contract by which it was to receive a share of the profits, and such
control as to render the contract one of partnership ; and in an action
on mercantile paper made by an agent of the mills, it was held that
the corporation having been formed to manufacture iron could
carry out this purpose by making such a partnership, and was liable
as a partner on the paper. But this case is ha*-dly consistent with
the general rule.

In Ontario Salt Co. v. Merchants' Salt Co. 18 Grant's Ch. (Up.
Can.) 640, an association of salt manufacturers, some of them cor-
porations, to develop the business and sell the product, the associa-
tion not being a monopoly, was legal. But it can scarcely be
considered a partnership.'

Associations of connecting railroads or other common carriers
on a continuous line of travel are frequently formed for through
transportation, with a division of receipts in specified proportions.
These are held legal, as are many other pooling arrangements, on

s. c. at an earlier stage, Catskill B'k i A corporation was also a partner
V. Gray, U Barb. 471, 582. in Jones v. Parker, SON, H. 31.

146

PERSONS COMPOSING THE FIEM. g ICO.

tHe ground that they do not constitute a partnership; for although
each can issue through tickets, there is no community of loss nor
interest in the earnings of each other, but a mere running arrange-
ment.'

MARRIED WOMEN.

§ 135. In general. — The complications that arise where
a married woman is or has acted as a member of a firm
depend for solution on the various statutes of the several
st ates, and to give the necessary space to analyze them is
out of the question in this book; but as all the decisions
have never been collected together, 1 shall give them with
an approximate classification. The cases where the husband
is not a member of the firm will be treated first. In some
states she can invest her separate means in a firm; in others,
only with the husband's consent, and in others not at all.
The common law incapacity of a married woman to con-
tract made her contract of partnership wholly void where
she had no separate estate. But where she had a separate
estate she could embark it in a partnership. Her capacity
to contract a partnership, in case of the absence, abandon-
ment, separation or alienage of the husband, is the same as
in other contracts in such cases. ^

§ 136. Statutes — Where the husband is not in the firm.

Where statutes give a married woman power to . sell and
contract as to her separate property and to carry on busi-
ness, she may invest it in a partnership, since this is a usual
way of carrying on business; and it is no objection that she
thereby becomes liable for the acts of others, for the same
happens if she owns stock in a company or employs an
agent. Her separate property is still hers, and does not
become liable for her husband's debts.'

1 See Hot Springs E. R. v. Trippe, v. Vanderbilt, 19 Barb. 233. And see

43 Ark. 465 ; 48 Am. Rep. 65 ; Ells- supra, § 65.

worth V. Tartt, 36 Ala. 733 ; 63 Am. 2 Thus, where the husband has

Deo. 749 ; Irvin v. Nashville, C. & St. been absent and unheard from for

L. R'y, 92 HI. 103; 34 Am, Rep. 116 ; seven years, see Brown v. Jones, 18

Pratt V. Ogdensburg & Lake Cham- N. H. 330.

plain R. R. 103 Mass. 557, 567 ; Briggs 3 Plumer v. Lord, 5 Allen, 460; Ab-

gl37.,

NATURE AND FOEMATION.

Where the statute allows her to carry on a trade sep
arately from her husband, the employment of their hus-
bands by a firm of wives is carrying on business separately
front the husbands, since they are agents and not owners.^

But where the statutes give hsr no power or only a limitefd
power to bBcome a partner, the rule of the common law
prevails and she cannot enter a firm.'

§ 137. Property in such cases. — That though she has no
capacity to become a partner, and yet does so, her property still re-
mains hers, and her husband cannot assign it, has been held.' No^
can his creditors reach it; ■* a trespasser on the property — one who
levied on the partnership property under execution against the hus-
band — cannot when sued by the firm question her capacity." She
may claim as creditor in case of insolvency of the firm for a loan
to it — she did not in this case seek to recover her capital; ^ and her

bott V. Jackson, 43 Ark. 213 ; Dupuy
V. Sheak, 57 Iowa, 361; Silveus v.
Porter, 74 Pa. St. 448; Newmaa v.
Morris, 52 Miss. 403. And see Ed-
wards V. Thomas, 66 Mo. 468, 481.

1 Kutcher v. Williams, 40 N. J. Eq.
436. In the following cases, also, a
married woman was a member of a
partnership, but the consent of the
husband incidentally appears: Craig
V. Chandler, 6 Colorado, 543, where
she bought her husband's interest In
a firm and claimed her share on dis-
solution; Merchants' Nat'l Bank v.
Eaymond, 27 Wis. 569; Atwood v.
Meredith, 87 Miss. 635; Bitter v.
Eathman, 61 N. Y. 513; Penn v.
Whitehead, 17 Gratt. 503. A mar-
ried executrix of the estate of a de-
ceased partoer, the firm being con-
tinued by wife, is not a partner, for
she receives profits as executrix and
not from her own estate. Brasfield
V. French, 59 Miss. 633. Of the
above cases the husband was the
wife's manager in the conduct of the .
business in Kutcher v. Williams,
40 N. J. Eq. 436 ; Penn v. Whitehead,

17 Gratt. 503; Atwood v. Meredith,
37 Miss. 635 ; Newman v. Morris, 52
Miss. 402; Dupuy \V. Sheak, 57 Iowa,
361.

2Bradstreet v. Baer, 41 Md. 19;
Frank v. Anderson, 13 Lea (Tenn.),
695; Carey v. Burruss, 30 W. Va. 571 ;
43 Am. Rep. 790 ; Brown v. Jewett,

18 N: H. 330; Todd v. Clapp, 118
Mass. 495; and dicta in Howard v.
Shaw, 91 Ind. 384; 46 Am. Rep. 607;
Brown v. Chancellor, 61 Tex. 437, 445;
Miller v. Marx, 65 id. 131 ; Howard
V. Stephens, 53 Miss. 239. Neverthe-
less the question was raised whether
a married woman could become lia-
ble as a partner by holding out in
Rittenhouse v. Leigh, 57 Miss. 697.

3 Howard v. Stephens, 52 Miss. 339.

<Maghee v. Baker, 15 Ind. 254;
HornefEer v. Duress, 13 Wis. [603] ;
Duress v. Horneffer, 15 id. [195].
Contra, that the property invested
would be liable for debts, and the
profits would belong to the husband.
Miller v. Marx, 65 Tex. 131.

5 Horneflfer v. Duress, supra.

•Frank v. Anderson, 13 Lea, 695.

148

PERSONS COMPOSING THE FIRM. § 13S.

copartners cannot deny her capacity to sue alone for an accounting
and dissolution.' As her partnership is a nullity, the other partner
can be sued alone.° The firm's property is liable for its debts.'
The earnings or profits become the husband's property is also held.*

§ 138. husband deemed the debtor, when. — Other

jurisdictions hold that if a married woman assumes to enter
a general mercantile partnership not connected with her
separate property, the huSband, if he assented to her so
doing, is deemed the partner and she merely his agent, and
the property or its proceeds is liable for his debts. ^

One who marries a woman who is a member of a firm be-
comes liable for the existing partnership debts, since she was
liable in solido, and this '.not because he receives property
from her, but because her legal existence is suspended or
merged in his; ' but her partnership debts incurred after
coverture in a firm with her separate estate, he having no
interest and no control, stand on a different basis.'

So if his labor and skill are mixed up with hers in a busi-
ness carried on by both, the business is deemed his and is
subject to his debts. ^

1 Bitter V. Rathman, 61 N. Y. 513. « Alexander v. Morgan, 31 Oh. St.

2Carey u Burruss, 20W. Va. 571; 546.

43 Am. Rep. 790. 7 Id. 551.

3 Newman v. Morris, §3 Miss. 403; 8 National Bank u. Sprague, 20 N.
Miller v. Marx, 65 Tex. 131. And see J. Eq. 13. The reversal of this case
Clay V. Van Winkle, 75 Xnd. 239 ; in 21 N. J. Eq. 530, did not involve
Edwards v. Thomas, 66 Mo.^468. this point, but in so far as it prevents
But see Bradstr'eet v. Baer, 41 Md. her employment of the husband in a
19. Yarbrough v. Bush, 69 Ala. firm in which her capital is her sepa-
170, was where an action vyas rate property it vyould not be con-
brought against the partnership in sisted with Kutcher v. Williams, 40
the firm name under the statute, and N. J. Eq. 436, cited above. That the
therefore no personal liability would personal property of the wife is pre-
be adjudged ; that her plea of covert- sumptively his, and therefore her
ure , was no defense, although she interest in a firm will be presumed
could not incur a contractual lia- to be his, and a creditor of the firm
l)ility, because the partnership prop- may therefore join him as defend-
city was bound for the debts. ant, and she may be stricken out of

4 Miller v. Marx, 65 Tex. 131; the judgment, his consent to the
Cranor v. Winters, 75 Ind. 301, 303. rendition of the judgment being

s Swasey v. Antram, 24 Oh. St. 87 ; deemed a ratification of her purchase
13 Am. Law Eeg. (N. S.) 577. of goods the price of which was

149

§139.

NATURE AND FORMATION'.

And where the husband is allowed ta act and appear as
the sole owner, he will be deemed such as to creditors, and
the wife cannot then, after judgment against him, claim the
property to be partnership assets.^

§ 139. As a partner of her husband. — It has been held
by the preponderance of authorities, even under the broad-
est statutes, that a married woman has not capacity to con-
tract a partnership with her husband, or, in other words, to
become a member of a firm in which her husband is a part-
ner, even in those states where she may embark in another
partnership.^ In states where she cannot be a partner in
any firm, a fortiori she cannot become her husband's part-
ner; and though she holds herself out as such partner, and
her means givq credit to the firm, she is not liable for its
debts; she cannot, by acts or declarations, remove her own
disabilities.

here sued for, Wells v. Simmons,
66 Mo. 617, 620. That a married
woman cannot put her separate prop-
erty into a partnership and retain it
as separate property, and therefore
cannot, without her husband's join-
ing, recover a judgment in connection
with the other partners; he was here
an agent in the management of the
business, Bradford v. Johnson, 44
Tex. 381. That if a feme covert
partner employing her husband as
her agent in the business buys out
her copartner, this dissolves the
agency, and if tlie husband thereafter
conducts the biisiness in his own
name, he, and not she, is liable for
the debts thereafter contracted,
Hamilton v. Douglas, 46 N. Y. 218.

1 Parshall v. Fisher, 43 Mich. 539 ;
Norris v. McCanna, 29 Fed. Rep. 757.

2 Lord V. Parker, 3 Allen, 127;
Plumer v. Lord, 5 id. 460 ; S. 0. 7 id.
481 ; Bowker v. Bradford, 140 Mass.
521; Haas v. Shaw, 91 Ind. 384;
46 Am. Rep. 607; Montgomery v.

Sprankle, 31 Ind. 113; Payne v.
Thompson, 44 Oh. St. 192; Fairlee v.
Bloomingdale, 14 Abb. New Gas.
341; 67 How. Pr. 292; Kaufman' u
Schoefifel, 37 Hun, 140 {contra, Graff
V. Kinney, id. 405 ; 15 Abb. N. Gas.
397) ; Wallace v. Finberg, 46 Tex. 35 ;
Cox V. Miller, 54 Tex. 16 ; Boyle's
Estate, Tucker (N. Y.), 4; Brown v.
Chancellor, 61 Tex. 437, 445; Miller t7.
Marx, 65 id. 131 ; Cosiou. DeBernales,
Ryan & Moody, 102; Mayo v. Soys-
ter, 30 Md. 402, where it was held
improper to join the wife as co-
defendant to collect by attachment
a debt incurred by them while trad-
ing as "The New Hope Mine;" and
the same ruling was made, incident-
ally or in dicta, in the following
cases: Knott v. Knott, 6 Oregon,
143, 150; Wilson v. Loomis, 55 ■ 111.
353 ; Huffman v. Copeland, 86 Ind.
234, 227; Sherman v. Elder, 1 Hilton
(N. Y.), 178; Chambovet v. Cagney,
35 N. Y. Superipr Ct. 474; and the
point was raised but not decided in

150

PERSONS COMPOSING THE FIRM.

§140.

, The partnership assets are liable for the partnership debts; as
i'/here a husband was in a firm with the wife's money and she
afterwards bought out the other partner, if a creditor of the firm
make a levy she cannot replevy on a claim that the assets are her
individual property.'

§ 140. Effect on property. — If, however, she neverthe-
less does join m a partnership with her husband, or in
which he is a member, the result to herself and to her prop-
erty is variously ruled under the v arious statutes, as shown
in the foot-note.^

Francis v. Diokel, 68 Ga. 255. For
the Mexican law, see Fuller v. Fer-
guson, 26 Cal. 546.

1 Clay V. Van Winkle, 75 Ind. 239.
The only oases in which a con-
trary rule is hinted are the follow-
ing: Zimmerman v. Erhard, 8 Daly,
311 ; 58 How, Pr. 11 (aff'd. on other
grounds, 83 N. Y. 74) ; but the only
one of the opinions which bases the
case on this doctrine is denied to be
law in Fairlee v. Bloomington, supra;
Ploss V. Thomas, 6 Mo. App. 157, in
which'case it was admitted that con-
tracts were not enforceable against
lier; Edwards v. MoEnhill, 51 Mich.
160, the court refused to decide the
point, saying that if she had such

partnership is merely a mutual
agency ; and in Scott v. Conway, 58
N. Y. 619, a married woman defend-
ant was not allowed to interpose the
defense that she had a dormant part-
ner, viz., her husband, but is held to
the truth of the appearance she has
held out.

2 It was held that she became a
creditor of the husband or of the
firm in Boyle's Estate, 1 Tucker
(N. Y), 4; and see Lord v. Davis, 3
Allen, 131 ; Huffman v. Copeland, 86
Ind. 224; see, also, Glidden v. Taylor,
16 Oh. St. 509. That the other part-
ners cannot'deny her a share in the
proiits (the husband does not appear
to claim it as his in this case), Knott

i-apacity the facts showing it must v.- Knott, 6 Oregon, 142, 150. That

lie stated; and In re Kinkead, 3
Biss..405; 7Bankr. Reg. 439 (U. 8.
D. C. 111.), wherein Blodgett, J.,
says: "lean see nothing in the re-
hition of husband and wife which
would prevent the wife from being
Iier husband's partner in business if
she could be a partner with any
other person." In Graff v. Kinney, 37
HuD, 405 ; S. C. 15 Abb. New Cas. 397,
it was held that a married woman
could form a partnership with her
husband with reference to her sepa-

the property still remains hers as
against the husband's creditors, Ploss
V. Thomas, 6 Mo. App. 157. That the
earnings are his, there being no cap-
ital in this case, Plummer v. Trost,
81 Mo. 425. That the property is
perhaps hers inter se, as if it were a
loan to her husb9,nd, but is liable for
his debts, Wilson v. Loomis, 55 111.
352. That it ceases to be her sepa-
rate property and becomes his, Loid
V. Parker, 3 Allen, 127, 129; and die-
turn in Sherman v. Elder, 1 Hilt.

rate property, on the ground that she (N. Y.) 178. Where both are in the
could employ him as agent, and a "business "of carrying on a farm,

151

9142. NATURE AND FORMATION.

§ 141. Wife's claim against her husband's firm. — Where
the wife of one of the partners lent money to or performed
service for the firm, or where a woman who is creditor of a
firm marries oile of the partners, equity will enforce the
debt where the statute preserves her choses in ac tion as
separate property in a suit by her to recover it back; ' but if
the statute does not preserve it as separate property, the
marriage extinguishes the debt, and this terminates it as to
the other partners also.^

But where a statute allows a feme covert to contract as
if sole, except with her husband, she cannot contract with a
firm of which he is a partner, for this is contracting with
him jointly with others.' Yet, though the firm's note pay-
able to her is void, she can hold the indorser, for he is
estopped to deny the maker's capacity.^ And she is bound
if she indorses for the accommodation of the firm ; ^ and if she
invests in her husband's firm and afterwards assigns the
fund, and the firm promise the assignee to pay him, he can
maintain an action on the promise.*

INFANTS.

§ 143. Toidalt)Ie, not void.— The ordinary rules as to in-
fants' contracts apply to partnerships, viz. : That such con-
tracts — leaving out those for necessaries, and the capacity to

which was the wife's separate prop- 8 Kenworthy v. Sawyer, 125 Mass.

erty, both were held liable on a joint 38; Edwards v. Stevens, 3 Allen, 315.

note, on the principle that she can * Kenworthy v. Sawyer, 135 Mass.

incur debts on the credit of her sep- 38, 39.

arate property. Krouskop v. Shontz, 5 id.

51 Wis, 304, 317. 6 Lord v. Davis, 3 Allen, 131. A

} Bennett v. Winfleld, 4 Heisk. wife was creditor of the firm of A.,
(Tenn.) 440 ; Devin v. Devin, 17 How. B. & 0. C. sold out to D. and the
Pr. 514; Adams u. Curtis, 4 Lansing, firm became A., B. & D., and her
164; Gould v. Gould, 35 N. J. Eq. 37; husband was a member of it. Pay-
id. 563 ; 36 id. 880 ; Benson v. Mor- ments by liim to her upon the debt
gan, 50 Mich. 78, holding also that were held to be evidence of the as-
the husband has no power to settle sent of all parties to a substitution ol
with his partners for her claim. And the new firm for the old as debtors,
see cases in the preceding note. for they are presumed to be known

*Foxi;. Johnson, 4 Del. Ch. 580. to all the partners, where there are

153

PERSONS COMPOSING THE FIRM. § 143.

give a power of attorney, and the somewhat controverted
question of contracts clearly not for the infant's benefit, such
as going security — are not void, but voidable, and that he
alone can avail himself of the privilege of avoiding them.
Also that if he fraudulently represents himself to be of age,
he may be bound to others who act on the faith of such
representations, and may be liable to restore any advan-
tage thereby gained. This, however, is not a contractual
obligation, but an estoppel to take advantage of his own
fraud.

These ordinary rules applied to partnership law produce
complications which will not be noticed.

An infant's contract of partnership is therefore, of course,
not void, but voidable. He can be a, partner.'

It was hinted in one case that an infant, by the mere act
of forjning a partnership, holds himself out as an adult and
practices a fraud. ^ But this is not the law. A contract by
an infant is not made binding thus, and there is no estoppel
without actual misrepresentation.'*

The consent of the parent, though he be insolvent, to an
infant's becoming a, partner, is a release of his services, and
the creditors of the parent have no recourse on the minor's ,
earnings.*

§ 143. Rights and powers inter se. — While the infant is
a partner, he has all the rights and powers of one to hold

no circumstances of concealment, he was therefore not a necessary

Osborn v. Osborn, 86 Mich. 48. party to a suit for an accounting,

1 Goode V. Harrison, 5 B. & Aid. McGunn v. Hanlin, 39 Mich. 476.
147 ; Whitney v. Dutch, 14 Mass. 2 Kemp v. Cook, 18 Md. 130, 138.
457 ; 7 Am. Dec. 229 ; Dunton v. s Thus, where an infant was a secret

Brown, 31 Mich. 182, and the nutner- partner and falsely represented his

ous cases hereinafter cited, assume ostensible partner as worthy of

the same doctrine. Where plaintiff credit in order to obtain profit for

on one part agreed toform a part- both, his infancy is a defense to an

nership with defendant and his in- action for the price of the goods ob-

fant brother, representing together tained, though the seller could have

the other interest, but the partner- rescinded for fraud and reclaimed

ship articles were signed only by the them. Vinsen v. Lockwood, 7 Bush,

adult brother, it was held that the 458.

infant had not become a partner; that ^ Penn v. Whitehead, 17 Gratt. 503.

153

§ 144. NATURE AND FORMATION.

possession of the assets, collect and pay debts, and bind the
firm by contracting obligations in its name.^

The adult partner who has contracted a partnership rela-
tion with an infant, on the faith of the latter's fraudulent
representations that he is of age, can rescind or dissolve for
this reason, for otherwise he might be ruined by the con-
tracts of a partner who could bind him and repudiate his
own liability.^ But in the absence of such fraud he is
bound, for the infant alone can avail himself of this inca-
pacity. Hence, if a parent without authority invests his
children's money in a partnership, the adult partner cannot
resist their right to insist on the partnership,'

Where an infant partner of a firm, which had a claim on an in-
surance company, was induced by the debtor's fraud to settle the
claim, and the firm received and divided the money, but afterwards
sought, to enforce a rescission of the settlement, it was*ruled that
they mast pay back the whole amount, although the infant was
unable to restore his share.*

§ 144. Accounting and payment of losses. — The infant can
call on his partner for an accounting and a share of the
profits.^ And his partner can require the infant to account.
The court has the same power to decree a dissolution and
compel an accounting for the misconduct of the infant as in
other cases.*

The adult partner has a right to insist upon the assets of
the firm being applied to the debts. The infant's right to
rescind is subordinate to this equity of the adult partner.

1 Bush V. Linthicum, 59 Md. 344, 349. sideration of an outfit to enable him

2 Id. 855. to go to California on a mining ad-
' Stein V. Robertson, SO Ala. 286. venture, agreed to give one- third of
* Brown v. Hartford F. Ins. Co. the profits to the person who f ur-

117 Mass. 479. nished the outfit, and having sent

5 Gay V. Johnson, 82 N. H. 167. back the agreed one-thud of the

"Bush V. Linthicum, 59 Md. 344 profits, sought to rescind and recover

(holding that he cannot be made per- them again, deducting the amount

sonally answerable for the costs); of the outfit; but the court refused

Kitchen v. Lee, 11 Paige, 107; Breed to allow this, saying that otherwise

V. Judd, 1 Gray, 455. In Breed v. the defendant would have no oom-

Judd, 1 Gray, 455, an infant, in con- pensation for his risk.

154

PERSONS COMPOSma THE FIRM. § 14o.

It is not like the case of performing services or delivering
money to another; but the possession is deemed joint and
not in the adult only. The infant's disafSrmance is execu-
tory only, and he cannot draw out his original capital and
throw the entire loss upon the adult partner, nor compel
the latter to bear the burden of the debts except in excess
of the entire assets of the firm.'

§ 145. Katification. — If the infant, after coming of age,
ratify the prior contracts of the partnership, he becomes
bound for its debts. ^ Whether there is or is not a ratifica-
tion seems to be a question of intention on his part, to be
determined by his conduct or declarations. It is doubtful
whether remaining in the partnership, and continuing busi-
ness is a ratification of it by the infant as to prior contracts
made during the minority.

Mere continuance was deemed not to show such intent in two
cases, in one of which the note in suit was not ratified by contin-
uing in business after majority without knowledge of the note.'

And in the other, a promise after coming of age to pay his share
of notes, was held to be, not a ratification, but a refusal to rat-
ify, but that dealing with such part of goods unpaid for as re-
mained on hand was a ratification as to them, for he could have
returned them.^

iPage V. Morse, 1S8 .Mass. 99; a partnership, he cannot recover it

Moley V. Brine, 130 Mass. 324; Dun- back, and consequently could not

ton V. Brown, 31 Mich. 183. In Dun- prove it against his partner's estate

ton V. Brown, 31 Mich. 183, where the in bankruptcy.

infant partner sought to rescind the 2 Whitney v. Dutch, 14 Mass. 457;
contract of partnership, and recover 7 Am. Dec. 239.
his capital and value of his services, 3 Crabtree v. May, 1 B. Mon. 289.
it was said that neither he while un- The exact contrary was ruled in Mil-
der age, nor his guardian, could deter- lerv. Sims, 2 Hill (S. Ca.), L. 479,
mine whether a voidable contract and the cases cannot be reconciled,
' should be annulled. In Sparman v. unless in the latter there was dealing
Keim, 83 N. Y. 345, however, he with the goods for which the note
was allowed to avoid the partner- was given ; but the ruling was said
ship contract and recover his capital, in Dana v. Stearns, 8 Cush. 372, 376,
In Ex parte Taylor, 8 De G. M. & G. to go beyond any case within the
354; 25 L. J. Bkr. 35; 2 Jur. (N. S.)" knowledge of the court.
330, it was. decided that if an infant <Minock v. Shortridge, 31 Mich,
pay a premium for admittance into 304.

155

§ 147. NATURE AND FORMATION.

So, where two partners, both minors, gave a mortgage to secure
future advances of goods, if part of the goods was furnished after
one came of age, this ratified the mortgage as to him.'

Where the infant partner sold his interest in the firm to the
adult, taking a chattel mortgage to secure the purchase money, and
after coming of age proved the mortgage as a claim on his part-
ner's estate in insolvency, this was held not to ratify the partner-
ship so as to make him liable for the debts, but, if anything, to
ratify the dissolution only.'

If the infant deals with the goods under a hew title after coming
of age, as where on sale of partnership effects they were bought
in by his grandfather, and afterwards by him sold to the infant
this is, of course, no ratification.' Where judgment was rendered
against both partners, the infant's omission to attack it for six
years after majority was deemed a ratification.^

§ 146. contracts after majority. — But on coatracts

made by the firm after the infant comes of age, he is bound
by continuing in the business. And where he had, while
an infant, purchased goods together with his partners, but
did no partnership act after coming of age, he was held
bound for subsequent purchases by the partners from the
same dealer, if no knowledge of dissolution was had by such
dealer; the court holding that the partnership must be
deemed to continue until notice to the «ontrary.^

§147. Creditors' rights in the assets. — The creditors
have the right to subject the entire assets of the firm, al-
though one of the partners be a minor. His plea of infancy
avoids any personal responsibility for the debt, but will not
exempt his interest in th'e joint property, for he has no sep-
arate Interest in the joint property until all the debts are
paid and a division made..* Nor can separate creditors of an

I iKeegan v. Cox, 116 Mass. 389. Bush v. Linthicum, 59 Md. 344, 349;

2 Dana v. Stearns, 3 Gush. 373, 376. 'Whittemore v. Elliott, 7 Hun, 518.

3 Todd V. Clapp, 118 Mass. 495. See Furlong i;. Bartlett, 31 Pick. 401.
* Kemp V. Cook, 18 Md. 130. A minor, whose contribution to the
sGoode V. Harrison, 5 B. & Aid. capital of the firm was $1,000, but

147. But see King v. Barbour, 70 who had sold out his interest to his

Ind. 35. copartner for that sum, and thus

•Tates V. Lyon, 61 N. Y. 844, 346 ; dissolved the partnership and re-

156

PERSONS COMPOSING THE FIRM.

§ 149.

adult partner claim an equality of distribution in insolvency
with partnership creditors on the ground of the infancy of
the copartner, since he alone can avoid the partnership.^

§ 148. Actions hj and against. — In actions to collect de-
mands due the firm the infant partner must be co-plaintiff
with the others.^ In actions against the firm the infant
must be made a co-defendant; this follows from the prin-
ciples i that his contract is not void, and that no one but
himself can avoid it; the plaintiff cannot treat it as void,
but must Join him; rfloreover, he has a right to be heard.^

On plea of infancy by the minor defendant, plaintiff may
reply confirmation of the contract by hina after coming of
age.^

§ 149. Judgment is a partnership debt. — A judgment on
a demand due from the firm is a partnership debt, whether
the infant was dismissed or retained as a party; and even if
there was but one adult partner, and the judgment is against
him alone, after plea of infancy. Hence, if several actions

ceived back his capital, is entitled to
an injunction to prevent a levy of
execution on his property under a
judgment got against the firm with-
out his knowledge, Vansyokle v.
Eorback, 6 N. J. Eq. 234.

1 David V. Birchard, 53 Wis. 493,
497. And see Yates v. Lyon, 61 N.
Y. 344.

2 Teed v. Elworthy, 14 East, 310;
Osburn v. Farr, 43 Mich. 134. A
dictum to the contrary occurs in
Phillips V. Penny wit, 1 Ark. 59.

3 Wamsley v. Lindenbei'ger,- 3
Eand. (Va.) 478; Slocum v. Hooker,
13 Barb. 536 (reversing s. C. 13 id.
563); Mason v. Denison, 15 Wend.
64. In former times, when the in-
fant's contract was void, it was held

Merrill, 4 Taunt. 468 ; Gibbs v. Mer-
rill, 3 id. 307; Jafifray «. Frebain, 5
Esp. 47; Chandler v. Parkes, 3 id. 76.
But these cases cannot be considered
law unless it be in a case where the
contract is void as to the emitted
partner, as in some states in the
cases of married women.

* Kirby v. Cannon, 9 Ind. 371. It
has been held that on plea of infancy
the plaintiff might dismiss as to the
infant and recover against the others
without being compelled to resort to
a new action, for a release of the in-
fant who has not confirmed his con-
tract does not release the others.
Kirby v. Cannon, 9 Ind. 371 ; Wood-
ward V. Newhall, 1 Pick. 500 ; Hart-
ness V. Thompson, 5 Johns. 160. And

proper not to join him as defendant ; on plea of infancy, judgment can go
and when his non-joinder was against the adults. Tuttle v. Cooper,
pleaded, to reply that the partner not 10 Pick. 381 ; Hartness v. Thompson,
joined was an infant. Buro'ess v. 5 Johns. 160.

157

§ 151. NATURE AND FORMATION.

are brought against the firm, and the minor pleads infancy
to some and not to others, and some of the judgments are
therefore against the adults alone and some against all the
partners, yet the judgments stand on an equality in the dis-
tribution of the firm's assets p for pleading infancy is not a
disaffirmance of the partnership, but a mere denial of indi-
vidual liability.^

In view of the right of the adult partner to have the assets of
the firm applied to the partnership debts, and the right of its cred-
itors to secure priority in the distribution oVer the separate creditors
of the individual partner, there would doubtless be no impropriety
in retaining. the infant as a party, with a proper restriction on the
judgment against execution on his individual property.''

§ 150. A firm as partner in another flrpi. — ^A partner-
ship may inter se be regarded as a member of a firm. The
liability in solido of each partner to creditors renders this
unimportant as to third persons, but inter se, as bearing on
distribution and on liability to each other, it may be very
important. The intention of the parties must be ascer-
tained and is the sole test.

In In re Hamilton, 1 Fed. Rep. 800, where two firms formed a
conjoint firm, each firm and not each individual was intended to
be a partner, this intention being inferred from the facts: 1. That
there was no firm name, but paper of the conjoint firm was made
in the name of the separate firms. 2. The agreement of partner-
ship was signed in the firm names. 3. Profits and losses were
allotted to firms and not to individuals. 4. The separate firms
presented claims upon the joint fund in their firm names."

DORMANT PARTNER.

§ 151. What is a dormant partner. — A dormant partner
is one who takes no active part in the business and whose

1 Whittemore v. Elliott, 7 Hun, Mason v. Denison, 11 Wend. 612
518; Gay v. Johnson, 33 N. H. 167. (aff'd, 15 id. 64).

2'A statute authorizing a judgment 3 gee, also, Raymond v. Putnam,
against all joint debtors, though 44 N. H. 160; Gulick v. Guliok, 14
some are not served with process, N. J. L. 578, 582; Re Warner, 7
applies, though one be an infant. Bankr. Reg. 47; Rich v. Davis, 6 CaL

163 ; Bullock v. Hubbard, 23 id. 495.
158

PERSONS COMPOSING THE FIRM. g 151.

name does not appear in the title of the partnership, and
who is unknown to those who lend credit to the firm. Ab-
solute and universal or even a studied secrecy is not essen-
tial, for the connection of the dormant partner may be
known to a few or even to many. He is then no longer
dormant as to them, but continues so as to the rest of the
public.^ If, however, the connection becomes generally
known in any way, the dormancy ceases, that is, secrecy is
essentia], independent of the manner of exposure; and \j.n-
like holding out, to render a third person liable as partner, if
the other partners or third persons divulge the connection
without the consent or knowledge of the dormant partner,
or it is revealed by casual means, he is no longer dormant,
though the firm style be the name of another partner only.^
The question of dormancy is one of fact for the jury.'

It seems to liave been thought that the law of dormant partners
applies only to commercial partnerships, and that in real estate
matters a partnership cannot be in the name of one person, doubt-
less by reason of the statute of frauds;^ but this has been justly
denied in toto.^

Many modern decisions have extended the doctrine of dormant
partnership to cover cases where a partner contracts with the
plaintiff, who does not know and has no reason to suppose there is
a dormant partner or a partnership, and who is therefore permitted

iMetoalfu Officer, IMcCrary, 335; sGoddard v. Pratt, 16 Pick. 419,

2 Fed. Rep. 640; In re Ess, 8 Biss. 429; Metcalf v. Officer, 1 McOiary,

301 ; Cregler v. Durham, 9 Ind. 375 ; 325 ; 2 Fed. Rep. 640 ; North v. BIoss,

Kelley v. Hurlburt, 5 Cow. 534; 30 N. Y. 374,879; Cregler v. Dur-

Davis V. Allen, 8 N. Y. 168; North v. ham, 9 Ind. 875; Hunter u Hubbard,

Bloss, 30 N. Y. 874, 380 ; Fosdick v. 36 Tex. 537.

Van Horn, 40 Oh. St. 459. < Smith v. Burnham, 8 Sumner,

z Evans v. Drummond, 4 Esp. 89; 435; Pitts v. Waugh, 4 Mass. 434;

U. S. Bank v. Binney, 5 Mason, 176 Patterson v- Brewster, 4 Edw. Ch.

(aff' d as Winship v. Bank of U. S. 5 852 ; Speake v. Prewitt, 6 Tex. 253

Pet. 529) ; Boyd v. Ricketts, 60 Miss, (a dictum).

63; Deering v. Flanders, 49 N. H. 5 Chester i;. Diokerson, 54 N. Y. 1,

325 ; Clark v. Fletcher, 96 Pa. St. 416; 10 ; Benners v. Harrison, 19 Barb. 53,

Benjamin v. Covert-, 47 ^yis. 375, 383. 58 ; Gray . v. Palmer, 9 Cal. 616-;

This was denied by Baldwin, J., in Brooke v. Washington, 8 Gratt. 248

his dissenting opinion in Winship v. (56 Am. Dec. 142). And see more

Bank of U. S. 5 Pet. 539, 574. fully in the chapter on Real Estate.

159

§ 152. NATURE AND FORMATION.

to sue such partner alone witliout joining His associates, they being
regarded as to the plaintiff in the light of dormant partners.'

§ 152. the firm name not decisive. — It has been said

that every person whose name is not included in the firm
style, or under a general designation as & Oo., is to be
deemed a dormant partner; ^ but this obviously is quite too
sweeping; it must be intended that he shall be unknown,
and he must also, of course, be not generally known.'
Otherwise, if the firm name were a purely artificial and
fictitious one, as The Citizens' Bank, or The Warren Factory,
all the partners would be dormant, which is preposterous;
for credit must be given to somebody, and not to a mere
name, and somebody must be plaintiff, whereas a dormant
partner need not be plaintiff.''

The fact that the firm name contains a collective word or
a general designation, as &Co., & Son, & Bro., does not pre-
vent a partner in it being dormant, if there are more than
two;* but if the firm consists of but two and its name has
a collective expression, the legal presumption is that both
partners are ostensible.*

1 De Mautort v. Saunders, 1 B. & * Shamburg v. Ruggles, 83 Pa. St.

Ad. 398 ; ChaSe v. Deming, 43 N. H. 148 ; Clark v. Fletcher, 96 id. 416,

274, where he denied there were 419. Yet see Bernard v. Torrance, 5

others; Clark v. Holmes, 3 Johns. Gill & J. 883.

148; Hurlbut v. Post, 1 Bosw. 28; 6 See the facts in the following

Blown V. Burdsal, 29 Barb. 549 ; Cook- cases: Metcalf v. Officer, 1 McCrary,

Ingham v. Lasher, 38 id. 656; 2 Keyes, 325 ; 3 Fed. Rep. 640 ; Warren v. Ball,

4o4; 1 Abb. Dec. 436; Farwell u 37 III. 76; Kennedy "j. Bohannon, 11

Davis, 66 Barb. 73; Worth v. Bloss, B. Mon. 118; Goddard v. Pratt, 16

80 N. y. 374, 380; Leslie v. Wiley, 47 Pick. 412, 438; Grosvenor v. Lloyd, 1

id. 648. See § 1053. Miet. 19 ; Benton v. Chamberlain, 23

2Leveok v^ Shaftoe, 3 Esp. 468; Vt. 711; Waite v. Dodge, 34 id. 181.

Bank of St. Marys v. St. John, 25 Ala. See Hagar v. Stone, 30 Vt. 106, 111.

566 ; Mitchell v. Dall, 2 Har. & Gill, 6 Metcalf v. Officer, 1 McCrary, 335 ;

159, 173; Cammacku Johnson, 2 N.J. 2 Fed. Rep. 640; Shamburg u Rug-

Eq. 163; Mason v. Connell, 1 Whart. gles, 83 Pa. St. 148, 151. But see facts

381, 385; Jones v. Fegely, 4 Phila. 1 ; in Grosvenor v. Lloyd, 1 Met. 19,

Shamburg v. Ruggles, 83 Pa. St. 148, where I. Stone and D. Stone were

150; Speake v. Prewitt, 6 Tex. 253. partners as I. Stone & Co., but the

8 Phillips V. Nash, 47 Ga. 318; contract sued upon was for rent of

Howell V. Adams, 68 N. Y. 314. premises rented to I. Stone.

160

PERSONS COMPOSING THE FIRM. § 155.

§153. need not abstain from participation.— It is

not essential to dormancy that the dormant partner should
wholly abstain from participation in the business. He may
participate, provided he is not known in it as a partner,^ or
even appear to the public as a clerk or agent. ^ But the
active manager and business-man of the firm, if a partner
and not an agent, it was said, could not be a dormant
partner.'

§ 154. Powers of dormant partner. — The powers of the
dormant partner inter se must be governed by the contract
between the parties.* In the absence of express restriction
in the iarticles upon his participation in the business, the
mere fact that he is a dormant partner does not of itself
place any limit upon his general power as a partner;^ hence
his admissions are evidence against the firm.* On the death
of the active partner, he may take charge of the winding-up
as surviving partner and bring necessary suits.'

§155. Property may be deemed to belong to ostensible
partner. — A partner cannot keep his membership secret and
afterwards be allowed to appear and embarrass creditors
or persons who have acquired claims on the faith of the sole
ownership of the ostensible partner. Thus, an execution
or attachment on a judgment against the ostensible part-
ner, levied upon the property of a dormant partnershipy.will

1 Bank of St. Marys v. St. JohD, 35 ably not bind it; citing NicholSomu
Ala. 566; Mitchell v.' Dall, 2 Har. & Ricketts, 3 E. & E. 524; Cleasbt, B.,
Gill, 159 ; North v. Bloss, 30 N. Y. 374, in Holme v. Hammond, L. R. 7 Ex.
380 ; Fosdick v. Van Horn, 40 Oh. St. 218, 233. But see Rich v. Davis, 6 Gal.
459, 406. ( 163.

2 Waite V. Dodge, 34 Vt. 181 ; How ^ Qammack v. Johnson, 2 N. J. Eq.
V. Kane, 2 Pin. (Wis.), 531 ; 2 Chand. 163. See Holme v. Hammond, sitpra.
222 (54 Am. Dec. 153). 6 Kaskaskia Bridge Co. u Shannon,

3 Choteau v. Raitt, 30 Oh. 133, 144-5. 6 III. 15.

Contra, Bank of St. Marys v. St. 'Beach v. Hay ward, 10 Oh. 455.

John, supra. This had been said to be uncertain in

4 If in fact he has no actual power Johnson v. Ames, 6 Pick. 330, 334;
and is not known to be a partner, his but in the analogous case of a limited
attempt to contract on behalf of the partnership, a surviving special part-
flrm, it was said by Mr. Justice Lind- ner can wind up, see Bates' Limited
ley, Partnership, 238 (d), would prob- Partnership, p. 197,

Vol. I- 11 161

§156.

NATURE AND FORMATION,

not be postponed to a subsequent levy by a partnership
creditor. The dormant partner cannot assert a lien in viola-
tion of the appearances he has held out, and," therefore, the
partnership creditors cannot do so through him.* So, if a
person have an account in bank, and take in a secret part-
ner, subsequent deposits may be applied by the bank to prior
overdrafts.^

§ 156. Liability of dormant partner. — A dormant part-
ner's liability for the debts of the firm depends on the gen-
eral principles of commercial law applicable to any other

• Ex- parte Norfolk, 19 Ves. 455 ; Ex
parte Law, 3 Deao. 541 ; Ex parte
Chuck, 8 Bing. 469 ; French v. Chase,
6 Me. 166; Lord v. Baldwin, 6 Pick.
348 ; Cammacku Johnson, 2N. J. Eq.
163 ; Van Valen v. Russell, 13 Barb.
590; Brown's Appeal, 17 Pa. St. 480;
Hillman v. Moore, 3 Tenn. Ch. 454;
Whitworth v. Patterson, 6 Lea, 119,
128 ; How V, Kane, 2 Pin. (Wis.) 531 ;
2 Chand. 222 (54 Am. Dec. 152) ; Cal-
lender v. Robinson, 96 Pa. St. 454.
And see Talcott v. Dudley, 5 111. 427.
Contra on the ground that a credit-
or's priority is not because he trusted
the partnership, but because the
credit he gave tended to increase
their funds, and, therefore, they have
priority over separate creditors, al-
though the partnership was in the
name of the ostensible partner alone
and the other was unknown. Witter
V. Richards, 10 Conn. 37. Contra, also,
Taylor v. Jarvis, 14 Up. Can. Q. B.
128, holding that judgment on a note
signed B. & Co., got against B, alone,
supposing there was no partner, will
be postponed to a levy under a sub-
sequent judgment against both part-
ners. And see Boro v. Harris, 13
Lea, 36. And by statute in Missis-
sippi, if a person trade in his own
name, without & Co., or other part-
nership designation or sign, aU the

property is ti-eated as his, Gumbel
V. Koon, 59 Miss. 264.

2 Allen V. Brown, 39 Iowa, 230.
On this principle, if the- ostensible
partner goes into bankruptcy, it was
held that the creditors of the busi-
ness could regard him as their sole
debtor, and elect to prove? against hia
estate pari passu with his separate
creditors, who would then be subro-
gated to the claims against the joint
estate, or can claim against the joint
estate. Ex parte Hodgkinson, 19
Ves. 294; Ex parte Noifolk, 19 Ves.
455; Ex parte Chuck, 8 Bing. 469;
Ex parte Reid, 2 Rose. 84 ; Ex parte
Norfolk, 19 Ves. 455; Ex parte Wat-
son, 19 Ves. 459. If the ostensible
partner becomes bankrupt, the fact
that he was allowed to carry on the
business as sole owner, if bona fide,
will not entitle his assignees in bank-
ruptcy to take possession of the part-
nership stock as if he were sole
owner, regardless of the rights of the
dormant partner, Reynolds "i;. Bow-
ley, L. R. 2 Q. B. 474; Ex parte
Hayman, 8 Ch. D. 11. If the dormant
partner goes into bankruptcy the as-
signee cannot take rights in the
property against the creditors which
the assignor cotild not, Talcott v.
Dudley, 5 111. 437.

162

PERSDNS COMPOSING THE FIRM. § 150.

undiscovered principal, and he is chargeable when discovered
just as the other partners are. The authority of the osten-
sible partners within the scope of the business to bind the
dormant partner is the same as it is to bind each other, or,
rather, it binds the whole firm alike.'

If a loan has been made by a person who has a secret partner,
but is made not only on his individual credit, but for Ms individual
benefit, and not in his business, so that it is his personal matter
alone, the secret partner is not affected by it.'' If the borrowing part-
ner declares the loan to be for his business, this declaration is con-
clusive of the fact on the principles stated in section 450.'

If A. agree to deliver goods to B. at a future time, and before de-
livery B. takes' in a secret partner, credit, if given at the time of
the delivery, will be presumed given to the firm though unknown
to A.^

Cuttle & Bordley bought goods of plaintiff and many others, and
shipped them to Gilmore, at Baltimore,' under fictitious names.
Gilmore sold them under the same names, but being a member of
the firm of Cuttle & Bordley, he was held liable to the plaintiff ex
cow^raciM, though the plaintiff was ignorant of bis existence."

K. was a secret partner of- E. in many of his purchases of hogs
but not in all of them, and it was impossible to ascertain to what
extent. In an action for the price of a certain purchase made by
E., in which K. took an active part, it was held that such purchase
would be deemed one of them.°

Where fraud in the formation of the partnership was perpetrated

iWinshipu Bank of U. S. 5 Pet. Tucker v. Peaslee, 36 N. H. 167

539 ; U. S. Bank v. Binney, 5 Mason, Bromley v. Elliot, 88 id. 387, 303

176; Snead v. Barringer, 1 Stew. Johnston v. Warden, 3 Watts, 101

134; Parker v. Canfield, 37 Conn. Lea v. Guice, 18 Sm. & Mar. 656

■JOT; 9 4-01. Eep. 317; Phillips v.Nash, Gavin v. Walker, 14 Lea, 643; Brad-

47 Ga. 318 ; Holland v. Long, 57 id. shaw v. Apperson, 36 Tex. 133 ; Grif-

36, 40 ; Lindsey v. Edmiston, 35 111. iith v. Buffum, 23 Vt. 181 ; 54 Am.

359; Bisel v. Hobbs, 6 Blackf. 479; Dec. 64.

Gilmore v. Merritt, 63 Ind. 525; 2 gee Jn re Munn, 3 Biss. 443.
Scott V. Colmesnil, 7 J. J. Mar. 416; 3 Winship v. Bank of U. S. 5' Pet. '

Kennedy v. Bohannon, 11 B. Mon. 539 ; Gavin ?;, Walker, 14 Lea, 643.
118;St^ Armandu Long, 35La. Ann. ^ Johnston v. Warden, 3 Watts,

167; Bernard v. Torrance, 5 Gill &• 101.

J, 388; Moale v. Hollins, 11 id. 11; « Gilmore v. Merritt, 63 Ind. 335.
Eichardson v. Farmer, 36 Mo. 85; 6 Lindsey v. Edmiston, 35 111. 359.

163

§ 158. NATURE AND FORMATION.

upon the dormant partner, and on 'its discovery he rescinded the
contract of partnership without having received any part of the
fc!ads, he was not liable to creditors.'

,§ 157. Rationale of his liability. — The liability of a dor-
mant partner was at an early period explained as founded on
his taking part of the fund upon which creditors rely, or,
in other words, because he receives part of the profits or gets
the benefit of the contracts of the ostensible partner. This
reason has been repeated again and again ever since then. '■
But where money is borrowed or credit given for the busi-
ness without knowledge on the part of the lender that there
is a dormant partner, the latter is liable, though the borrow-
ing partner misapply the funds or credit and no benefit is
received, the fund never having come to the use of the firm.'
Hence it evidently appears, that the true ground of liability
is that the dormant partner is an undisclosed principal.* In
case of a note given in a business transaction in the name of
the ostensible partner alone, where not only the dormant
partner was unknown, but also the fact that there was
a firm of any kind, the dormant partner is, nevertheless,
liable if the loan was for the business. Had the firm been
known and had a name, taking such a note woiild have been
an election to take the signer alone, but here there is no op-
portunity to elect. The name of the signing part^ner will be
regarded as the firm name.^ •

DELECTUS PEKSONARUM.

§ 158. Partnership being a relationship created by agree-
ment and founded upon and requiring a degree of mutual

1 Mason u Counell, 1 Whart. 881, 529; Parker v. Canfield, 37 Conn,
and Wood v.. Connell, 3 id. 543. 350, 370 (9 Am. Rep. 317) ; Grosvenor

2 Waugh 11. Carver, 3 H. Bl. 335 ; for v. Lloyd, 1 Met. 19 ; Tucker v. Peas-
example, Phillips V. Nash, 47 Ga. 818 ; lee, 36 N. H. 167.

lieau<}uice, 13 Sm. &Mar. 656; Fos- sSnead v. Barringer, 1 Stew. 134;

dick V. Van Horn, 40 Oh. St. 459, 466. Parker v. Canfield, 37 Conn. 350 ; 9

3 Winship v. Bank of U. S. 5 Pet. Am. Rep. 817; Scott v. Colmesnil, 7
229; Gavin v. Walker, 14 Lea, 643. J. J. Mar. 416; Moale v. Hollins, 11
Contra, see Bank of Alexandria v. Gill & J. 11; Richardson v. Turner,
Mandeville, 1 Cranch, C. C. 575. 36 Mo. 85 ; Griffith v. Buffum, 33

< Winship v. Bank of U. S. 5 Pet. Vt. 181 ; 54 Am. Deo. 64.

164

PERSONS COMPOSING THE FIRM. g 159.

confidence not found in any other contract relationship, and,
in fact, resembling marriage in this respect, it follows that
no person can become a member of a firm without the con-
sent of the others. Hence, no one of the partners can in-
troduce a person into the firm, or engage the firm in
another partnership, unless his copartners are willing.
Hence, for example, the executors of a deceased partner
cannot become members of the firm without the consent of
the surviving partner, however imperative the directions of
the will for the continuance of the business may be.^ If a
partner sells his interest in the firm, the purchaser cannot
be made a partner by any contract with his vendor alone,
nor acquire any right to interfere in the partnership affairs.^-

§ 159. Cannot make the firm partner in other concerns. — •

On the same principle, a partner cannot engage his firm in
enterprises in which a third person is a partner with him.'
Thus, a partner intrusted with money of the firm for the
purpose of going into another state and purchasing com-
modities there, and who there takes in a third person as
partner in the speculation, and intrusts the money to him,
and the new member is robbed of it, is guilty of a conver-
sion and must account to the original firm for the money.*
Or if, in such case, the speculation is disastrous, the new
associate cannot require the firm to share the loss with
him.* So an agent, having a general power of attorney to
transact his absent principal's business, cannot embark the
principal or his property in a partnership.^

1 Pearce v. Chamberlain, 2 Ves. Sr. Brainard, 38 Barb. 574 ; Mason v.

83 ; Crawford v. Hamilton, 8 Madd. Connell, 1 Whart. 381 ; McGlensey v.

254: Bray w. Fromont, 6 id. 5; Craw- Cox, 1 Phila. 387; Setzer v. Beafe, 19

shay V. Maule, 1 Swanst. 495 ; Tatam W. Va. 274.

V. Williams, 3 Hare, 347. 3 Numerous authorities on the gen-

■2Jeflferys v. Smith, 3 Russ. 158; eral proposition will be found under

Bank v. Railroad Co. 11 Wall. 624; Sub-partnership.

Jones V. Scott, 2 Ala. 58; Meaher v. ^Reis v. HeUman, 25 Oh. St. 180.

Cox, 37 id. 201; Miller u Brigham, 5 Freeman v. Bloomfield, 43 Mo.

50 Cal. 615; Love v. Payne, 73 Ind. 891.

80; 38 Am. Rep. Ill; Taylor v. 6 Campbell v. Hastings, 29 Ark.

Penny, 5 La. Ann. 7; Merrick v. 512, 539-40.

165

§ 161. NATURE AND FORMATION.

§ 160. Consent in advance. — The consent to the admis-
sion of a new member may be given in adv^ance; the time
or place of it is immaterial. Thus, if the shares of partners
are by the articles agreed to be transferable, the buyer of a
share is by the agreement made a partner in the seller's
place. ^ And so if partners have agreed in advance that any
one of them may nominate his successor, the agreement is
valid. ^

But a mere right reserved in the articles to a partner, to
assign his share, is nqt equivalent to an agreement to admit
the assignee to membership in the firm, independent of the
acknowledgment of the firm.'

An article in the partnership contract providing negatively that
one partner cannot sell his interest without giving his copartners
the first chance to purchase does not imply a right to introduce a
stranger into the firm upon their refusal to buy.*

§ 161. Katiflcation and acquiescence. — If the other part-
ners recognize the third person, whether he be the buyer of
the entire interest of a retiring partner, or a person whom a
partner has assumed to introduce into the firm, or another
firm with whom he has assumed to associate his partner,
as partner, and treat him or them as such, this ratifies the
act on the terms of the old articles;* but not on terms dif-
fering from the articles and unknown to them.*

Mere silence or failure to dissent, after knowledge that a
partner has engaged the firm as member of another firm,
is evidence from which acquiescence or ratification may be
inferred;'' or that other similar contracts had previously
been recognized.*

In Jones v. O'Farrel, 1 Nev. 354, Hill & James being partners
in a particular kind of business, James formed a partnership with

1 Fox V. Clifton, 9 Bing. 119 ; May- 5 Meaher v. Cox, 37 Ala. 301 ; Ros-
hew's Case, 5 De G. M. & G. 837. enstiel v. Gray, 113 111. 383.

2Lovegrove v. Nelson, 3 M. & K. 6 Love v. Payne, 73 Ind. 80; 38
1, SO. ' Am. Rep. 111.

3 Jeflerys v. Smith, 3 Russ. 158. 'Tabb v. Gist, 1 Brock. 33; Mason

4 McGlensey v. Cox, 1 Phila. 387 ; v. Connell, 1 Whart. 381 ; Wood v.
5 Pa. L. J. 303; 1 Am. Law Reg. Connell, 3 id. 543.

^O. S.) 34. 8 Buckingham v. Hanna, 30 Ind. 110.

166 ■

PERSONS COMPOSING THE FIRM. § 163.

others, as O'Parrell, James & Co. in a different business, being an
enterprise to improve Hill's property. Hill was held not bound to
notify ^;he world that he is not a member of the new concern.

§ 162. Effect inter se of sale of a share.— The sale of a
share without consent of the partners is not, however, void,
but is a dissolution; certainly if the partnership be at will
(See §§ 570, 571); and the purchaser's remedy is to demand
an accounting.^

In Jones v. Scott, 2 Ala. 58, two firms, J. & H. and S. & S.,
owned a boat and ran her in partnership as common carriers. S. &
S., without the knowledge of J. & H., sold out all their interest to
the former captain and clerk, H. and D., after which a loss of freight
occurred; here, although the owner of the freight could have re-
covered from J. & H. unless he had timely notice of the dissolu-
tion, yet S. & S. cannot recover contribution from J. & H., whom
they have made associates of irresponsible persons without their
consent.

§ 163. Partnerships without delectus personarum. —

There are two exceptions to the right of delectus person-
arum — one in the case of jdint stock companies with trans-
ferable shares (§ 72); this is not really an exception because
transfer without dissolution is designed and agreed upou
in advance from the nature of the association. The other
exception is in case of mining partnerships. In this
peculiar kind of partnership there is no delectus person-
arum, but any partner may assign his share without dis-
solving the firm; nor is death a dissolution, and the assignee
has his rights and remedies against the other associates.^
Partnerships in mines may, however, as in the somewhat
analogous case of ships (§ 70), be ordinary partners if such
is the agreement.'

1 See § 927. Nash, 53 id. 540 ; Campbell v. Colo-

2Bentley v. Bates, 4 Y. & C. 182; rado Coal & Iron Co. 9 Col, 60:

Redmayne v. Forster, L. R. 3 Eq. Southmayd v. Southmayd, 4 Mon-

467; Kahn v. Central Smelting Co. tana, 100, 113; Lamar v. Hale, 79

103 U. S. 641 ; Skillman v. Lachman, Va. 147.

23 Cal. 199 ; Duryea v. Burt, 28' id. 3 Jefferys v. Smith, 8 Euss. 158 ;

569 ; Dougherty v. Ci'eary, 30 id. 290 ; Crawshay v. Maule, 1 Swanst. 518.

Taylor v. Castle, 43 id. 367 • Nisbet v.

167

§ 164. NATURE AND FORMATION.

SUB-PARTNERSHIPS.

§ 164. A partner has a right to contract with a stranger
on his own account, whereby the latter shall participate in
his share of the profits and bear part of his losses. This
wheel within a wheel is called for convenience a sub-part-
nership, and constitutes the parties to it partners, and the
third pe rson is called a sub-partner.

But as between the original partners the sub-partner is
not a member of the firm,' but is only a partner of the one
with whom he contracted.^ The right of delectus person-
arum prevents any person being made a partner of others
without their consent, and forcing upon the rest an asso-
ciate whom they had not selected.

Thus, where D. and L. were partners carrying on several busi-
nesses in different cities, and the partnership was to apply to any
and all real estate subsequently purchased by L., and L. took in P.
as a partner in the business in one of the cities as L. & P., and they
became possessed of considerable real estate, most of which was
held in P.'s name; and D. recognized that L. had taken in such
partner, and L. died and his administratrix claimed that P. should
sell the real estate as -surviving partner of L. & P. and account to
her for L.'s share, but D. claimed that P. must account to him as
surviving partner of D. & L. for L.'s share, the latter view was
held to be the true one, for P. holds the assets composing L.'s share
for the legal representative of the original firm. ^

Where one partner has taken in sub-partners, another partner

1 Nam socii mei soclus, meus socius Gray, 468 ; 8 Am. Law Reg. (N. S.)

non est. Dig. lib. 17, tit. 3, § 20. 688; Shearer v. Paine, 12 Allen, 289;

'iEx parte Barrow, 3 Rose, 253; McHale v. Oertel, 15 Mo. App. 583;

Brown v. De Tastet, Jac. 284; Bray Murray v. Bogart, 14 Johns. 318;

V. Froniont, 6 Madd. 5; Ex parte 7 Am. Dec. 466; Burnett v. Snyder,

Dodgson, Mont. & McAr. 445; Frost 76 N. Y. 344 (aflf'g, 11 Jones & Sp.

V. Moulton, 31 Beav. 596; Fairholm 238); s. c. 81 N. Y. 550; 37 Am. Rep.

V. Marjoribanks, 3 Ross, L. C. 697 (a 537; (rev. 13 J. &Sp. 577); Newland

Scotch case); Mathewson v. Clarke, v. Tate, 3 Ired. Eq. 226; Channel v.

6 How. 123; Bybee v. Hawkett, 13 Fassitt, 16 Oh. 166; Setzer v. Beale,

Fed. Rep. 649; 8 Sawy. 176; Fry v. 19 W. Va. 374; Mair v. Bacon, 5

Hawley, 4 Fla. 358; Meyer v. Krohn, Graiit's-Ch. (Up. Can.) 338.
114 111. 574, 581 ; Reynolds v. Hicks, 3 Shearer v. Paine, 13 Allen, 389.
19 Ind. 113; Fitch v. Harrington, 13

168

PERSONS COMPOSING THE FIRM. § 167.

wlio is afterwards compelled to pay a judgment against the firm
cannot su« the sub-partners for contribution.' Xor can the, sub-
partner compel an original partner with whom he has not con-
tracted to share a loss.^

§ 166. Nor does the mere knowledge, recognition and ap-
proval of the other partners of the arrangement between
one of their number and a sub-partner constitute the latter
a member of the firm.'

Thus, where X. refused to become a partner in S., P. & Co., but
concurrently with the formation of that partnership entered into
an arrangement with two of the partners, S. and P., reciting that
it was deemed expedient that he should have an interest in the firm
and contracting that he should receive one-third of the profits and
bear one-third of the loss of S. and P.'s share, in an action by a
creditor against him as a partner in the original firm, it was held
that he was not such.*

The fact that the sub-partner was appointed agent and manager
of the firm is not recognition of him as a partner, and he is there-
fore entitled to compensation as an employee of the firm.' But if
all agreed that a person should be admitted as a partner, he is not
changed from a partner to a sub-partner merely by a contract with
one of the partners that he should be a partner in the latter's share,
unless the rest understood that he had ceased to be a partner.'

§ 167. Nor has he a right to accounting. — A sub-partner
being a stranger to the principal firm has no right to compel
an accounting from it or from any member of it, except his
partner; ' hence, in a suit for an accounting between the sub-
partner and his partner, the other partners in the principal
firm are not necessary parties.^

1 Murray v. Bogart, 14 Johns. 318 ; « Newland v. Tate, 3 Ired. Eq. 236.
7 Am. Dec. 466; Setzer v. Beale, 19 esetzer v.. Beale, 19 W. Va. 374,
W. Va. 374 ; Mair v. Bacon, 5 Grant's 397.

Oh. (Up. Can.) 338. ' Sir Charles Raymond's Case, cited

2 Freeman v. Bloouifield, 43 Mo. 39 1. in Ex parte Barrow, 3 Rose, 352, 35.5 ;

3 Shearer v. Paine; 13 Allen, 389, Brown v. De Tastet, Jacob, 384;
supra; Channel v. Fassitt, 16 Oh. 166 ; Bray v. Fromont, 6 Madd. 5; Math-
Setzer v. Beale, 19 W. Va.374, 291-2. -ewson v. Clarke, 6 How. 122; Reilly

4 Burnett v. Snyder, 81 N. Y. 550; v. Reilly, 14 Mo. App, 63.

37 Am. Rep. 537 (rev. 13 Jones & Sp. 8 Brown v. De Tastet, Jacob, 284;
577); S. C. 76 N. Y. 344. Settembre v. Putnam, 30 Cal. 490.

169

§ 169, NATURE AND FOEMATION.

Tet it has been held that the other principal partners could be
made parties so that the right to know the state of the accounts
and of discovery to which the sub-partner is entitled against his
partner may be enforced through the latter.' And in winding up
the principal firm it is not error to decree to a sub-partner, whose
connection had been consented to, the amount due him as against
the other principal partner who is a debtor to the firm.* And after
the dissolution of the principal firm, a sub-partner of one of the
members can maintain suit in chancery for his proportionate share
of the adventure, for he is then enforcing no right of the partner-
ship, though he could neither have compelled a dissolution nor
have maintained this suit jirior to dissolution.'

§ 168. Nor is lie a partner as to creditors. — Nor is such
sub-partner liable as partner to creditors of the firm, for he
does not participate in the profits as principal, and has no
community in them or lien before division to compel an ac-
counting and distribution, nor a control over the operations
of the firm, but his claim is merely a demand against the
partner with whom he contracted. The principles of Oox
V. Hickman, etc., §§ 19-23, are conclusive upon this.*

§169. Rights of the sub-partners inter se. — Subject to
the foregoing principles the rules that govern the existence,
formation, conduct and duration of a sub-partnership are
doubtless the same as those which apply to any other part-
nership having a managing and a sleeping partner. Thus,
if the contract be to share the profits and loss of the inter-
est of a partner, it is a sub-partnership and not a contract of
sale.' And the duration of the sub- partnership depends upon

1 Chandler v. Chandler, 4 Pick. 78. 550 ; 37 Am. Eep. 527 (rev. 13 Jones

2 Rosenstiel v. Gray, 112 111. 382. & Sp..577). and given fully above. See
s Mathewson v. Clarke, 6 How. Drake v. Eamey, 8 Rich. L. 37. Covr

122. And see Shearer v. Paine, 12 tray Baring v. Crafts, 9 Mtt. 380;

Allen, 289, cited fully supra. Fitch v. Harrington, 13 Gray, 468 (8

^Fairholrau. Marjoribanks, 3 Ross, Am. Law Reg. (N. S) 688^: and

Lead. Cas. 697; Bybee v. Hawkett, 12 dictum in Newland v. T: te, 3 Ired.

Fed. Rep. 649; 8 Sawy. 176; Meyer Eq. 236. But these cases are not

V. Krohn, 114 111. 574, 581-3 ; Eey- founded on principle,
nolds 17. Hicks, 19 Ind. 113; Burnett 5 Coleman u. Eyre, 45 N. Y. 38,

V. Snyder, 76 N. Y. 344 (aff. 11 where the statute of frauds vras

Jones & Sp. 238); S. C. 81 N. Y. urged against an oral contract to

" 170

PERSONS COMPOSING THE FIRM. § 169.

the contract between the parties to it, and the conclu-
sion does not follow that it is to last as long as the principal
partnership.^ A sub-partner can enforce his contract with
his copartner without awaiting the settlement of the original
firm, the amount of profits of the latter being a mere fact
to be proved.^

In Ricliardson v. Dickinson, 6 Poster (26 N. H.), 217, D. having
joined eight others in a partnership for a trading and mining ex-
pedition, each to contribute $1,000, R. advanced to him $500 to-
wards his contribution, he agreeing that on final distribution of
the company^ affairs, he and R. would divide profits accruing from
the enterprise. Before any profits were realized D. sold out his
share to the other members for $2,000. It was held that R. was en-
titled to a share in the purchase money as profits, for this increase
in profits as to D. is a final distribution as to him, but he will not
be held for any more in the absence of fraud, though a month later
he could have realized more, as did the others.

In Scott V. Clark, 1 Oh. St. 382", a similar mining expedition to
California, of which C. became a member by S. paying in C.'s con-
tribution on an agreement that he should have half of all that C.
should obtain by being a member. The company was dissolvable
at any time by vote of two-thirds of the members, and was subse-
quently so dissolved, and 0. made money on his own account. It
was held that S. was entitled only to half the share assigned to C. on
dissolution, and not half of the whole proceeds of C.'s trip to Cal-
ifornia, the latter being his individual property.

share the profit and loss of the inter- 598 ; both parties here testified that
est of one person in the shipment, there was no limit,
but it was held to be a sale. 2 iJeilly v. Reilly, 14 Mo. App. 62.

1 Frost V. Moulton, 31 Beav. 596,

171

GHAPTEE VIII.

THE FIRM AS AN ENTITY.

§ 170. Opposing conceptions of a iirra. — There is one
striking and very important difference between the mercan-
tile conception of a partnership and its attitude in the eye
of the law. In the commercial view a firm is regarded as if
it were a corporation; it is regarded as an entity or personi-
fied .being, distinct or apart from its constituent members.
The accountant makes each of the partners a debtor or cred-
itor to the firm and not to each other. Changes of member-
ship are not regarded as the ending of one and the beginning
of another partnership, but as mere incidents in an un-
broken continuity. Business houses in different places un-
der different names, but composed of the same persons, as
where A. and B. have an establishment in one city as A. &
Co. and in another as B. & Co., are regarded as distinct
partnerships with distinct debtors and creditors, and as debt-
ors or creditors of each other, unlike the legal treatment of
the partners.^

§171. Originally a partnership was, and to a very large
extent still is, in its legal aspect, something very different
from this. The common law recognized but two kinds of
persons, the natural and the artificial; one created by nature,
the other by the sovereign; but a conventional being, or the
attempt to create an entity by private agreement, was un-
authorized, and even its possibility not recognized. It was
I not a thing distinct from the members composing it, nor
was it an entity at all, but a mere expression of the relation

1 In Bank of Toronto v. Nixon, 4 legally makes a dissolution and new
Ont. App. 346, the court construed a firm and not an alteration, regard-
statute referring to an alteration or ing the legislature as more probabFy
change of partnership to apply to familiar with the mercantile than
the retirement of a partner, which the legal view.

173

THE FIRM AS AN ENTITY. § 172.

of certain persons to each other, or description of a pecuhar
species of mutual agency of each for all, in which each
agent is also a joint principal, with certain equitable rights
over the application of the joint property, and the firm
name a mere symbol or convenient abbreviation of all the
names adopted for mutual purposes. ' Eeal estate could not
be held or conveyed in the firm name. The same idea runs
through other parts of the law, as in demands by and
against the firm being prosecuted by and against the part-
ners; judgments against the partners being liens on the real
estate of each; executions upon a debt of the firm being
levied upon and satisfied out of the separate property of any
partner without resorting to the partnership assets in the
first instance: bonds and guaranties to a firm for good con-
duct of another, or to a person for the good conduct of a
firm, expiring on a change of membership.

So a partner stealthily or forcibly breaking into the store,
taking the money, or appropriating the goods, commits no
crime, neither embezzlement, larceny or burglary, nor even
a trespass, for the firm not being a distinct proprietor, these
acts relate to his own property;

So, also, we find that if one of a firm has disqualified
himself to sue, as by having released the debtor, or having
conveyed to him, though wrongfully, the property sought
to be recovered, the firm is disabled to sue, because one of
the plaintiffs is seeking to i-epudiate his own act, whereas if
the firm were a distinct individuality it would not be thus
affected.^'

§ 172. On the other hand, of the justice, convenience and
desirability of treating a firm as a person there is but little
doubt, and there are certain parts of the law difficult to ex-
plain except upon the theory that a partnership is an entity.

1 And this lias been carried to such mon to both, and the maker pays the
an extent as to hold that where a note to A., so that A. & B. could not
note is made to the firm of A. & B., sue upon it, B.'s disqualification dis-
and is by them indorsed to the firm ables B. & C. to sue. Jacaud v,
of B. & C, B. being a partner com- French, 13 East, 817.

173

§ 172. NATURE AND FORMATION.

This appears on the distribution of assets by a court in cases
of death or bankruptcy, awarding a priority to the partner
ship creditors; true this is explained as based upon an ex-
tension and enforcement of the right of each partner to
have the assets apphed so as to reheve him from the debts;
but where did he get this right? It is not a hen, for a hen
is based upon possession, and ceases when that is lost,
whereas here is no possessory right, but an equity, easier
understood and more consistent by regarding the firm as an
individual with its environment of rights and liabilities, than
to imagine an equitable lien in a partner that has no counter-
part elsewhere in the law. When we come to the subject
of shares, in the next chapter, we shall find a great deal to
suggest the personification of the firm.

The law of Scotland,' and the systems of continental Europe and.
the Roman law, regarded the firm as a separate person capable of
suing and being sued by its own members, and having distinct
rights and interests, and such is the law of Louisiana."

Equity also in some respects treated a partnership as if it were
distinct from its members, in permitting a firm to sue another firm
with which it had a member in common for a balance, although the
suit was required to be in the individual names: and even at law on
a note or other promise made by a firm jointly with an individual,
the persons composing the firm were regarded as but one promisor
or one surety, and inter se bound for half the debt only.'

1 Bell's Law of Scotland, § 357. ion of profits on a joint enterprise

2 Succession of Pilcher, 1 South, between a partnership and an individ-
Rep. 939 (1887), where it 'is called a ual. So in West & Co. v. Valley Bank
moral being distinct from the indi- 6 Oh. St. 168, where by statute dam-
viduals ; a civil pei'Bon which has ages were allowed on protested bills
peculiar rights and attributes, and drawn on persons " without the ju-
its partners do not own the property ; risdiction of this state," and the firm
it is the ideal being that owns it. of Taylor & Cassilly had a business
See, also, Liverpool, etc. Nav. Co. v. house in Cincinnati, where C. resided,
Agar, 14 Fed. Rep. 615 ; 4 Woods, and another in New Orleans, where
201, of a Louisiana commercial part- T. resided, each house keeping inde-
nership. pendent accounts, and a bill was

sChaflCeev. Jones, 19Pick. 360;Hos- drawn on "Taylor & Cassilly, New
mer v. Burke, 36 Iowa, 353; Warner Orleans," and accepted by C. inCon-
V. Smith, 1 De G. J. & S. 837, of divis- neoticut for the New Orleans house,

174

THE FIRM AS AN ENTITY. § 173.

§ 173. And judicial declarations that a firm is a distinct entity-
are now frequently to be met with.

Jessel, M. K, in Pooley w. Driver, L. R. 5 Ch. D. 458, says, speak-
ing of agency as a test of partnership, "you cannot grasp the
notion of agency, properly speaking, unless you grasp the notion
of the existence of the firm as a separate entity from the existence
of the partners, a notion which was well grasped by the old Roman
lawyers, and which was partly understood in the courts of equity
before it was part of the whole law of the land, as it now is."

In Walker v. Wait, 50 Vt. 668, it was said that a partnership or
joint stock company is just as distinct and palpable an entity in the
eye of the law as distinguished from the individuals composing it,
as is a corporation, and can contract as an individualized and uni-
fied party with one of its members as effectually as a corporation
with one stockholder. The only difference is a technical one, that
plaintiff as a partner would be on both sides of the record; but
when the note of a partnership to one member is transferred to a
stranger, he can sue on it at law.

Other similar declarations, that a partnership is a distinct thing,
artificial being or legal entity apart frOm the partners, are not un-
frequent.'

Other examples of an unconscious instinct in courts towards

this was held not to be drawn on the i Forsyth ■;;. Woods, 11 Wall. 484,
natural persons, but upon the ideal holding that a promise by the part-
mercantile person as domiciled at ners collectively respecting a matter
New Orleans, which is a person not within the Scope of the firm's
"without the jurisdiction of the business is not a promise of the firm
state." The rulings in this case and and should not be declared upon as
two preceding ones may, howeTer, be such. Bracken v. Ellsworth, 64 Ga.
explained as merely carrying out the 243, 251 ; Henry v. Anderson, 77 Ind.
contract of the parties. See, also, 361, 363; Fitzgerald v. Grimmell, 64
City Bank of New Orleans ■;;. Stagg, Iowa, 261 ; Cross v. National Bank,
1 Handy, 882, illustrating the doc- 17 Kan. 336, 340; Robertson v. Cor-
Irine that the domicile of the drawee sett, 89 Mich. 777; Roop v. Herron,
determines the right to damages on 15 Neb. 73 ; Curtis v. Hollingshead,
protest and holding a bill on a foreign 14 N. J. L. 402, 410; Faulkner v.
house payable there, and accepted Whitaker, 15 id. 438; Meily w. Wood,
by a partner residing here. So 71 Pa. St. 488, 493; 10 Am. Rep. 719;'
Chenowith v. Chamberlin, 6B. Mon. and a firm is spoken of as having a
60 (43 Am. Deo. 145), of a resident domicile in Cameron v. Canioo, 9
drawing on his firm domiciled out Bankr. Reg. 527 ; Pecks v. Barnum,
of the state. 24Vt. 75, 79.

175

§ 1 74. NATURE AND FORMATION.

treating a firm as an entity, as far as possible, may perliaps be seen
in the' effort to preserve insurance policies issued to a firm from for-
feiture by alteration of membership under clauses against alienation
of the property or changes of title.

The statutes in England and in many of the code states permit-
ting actions to be brought by and against firms in the firm name
have made the partnership into a person for many purposes of pro-
cedure, even to allowing one firm to sue another having a member
in common with it, and have goiie far towards fostering a further
recognition of the entity conception of a partnership."

§ 174. How far the original legal conception of a firm
has shifted or is shifting, and however desirable that some
of its corners be rubbed off, yet it nowhere is coterminous
with the accountant's idea of the firm as expressed above,
nor do the judicial expressions of its personification go to
that length. This is conspicuously so in the law of con-
veyancing and procedure. A deed to or by a fii'm in a con-
ventional name either wholly fails to convey the legal title,
or is highly defective. Actions must be brought, statutes
apart, by and against the individual partners, and judg-
ment against the individuals will reach their private property
equally with the partnership property, subject, of course, to
any priorities separate creditors may have; and every addi-
tion or retirement of a member, though the business be
continued under the same name, ends the old and forms a
new and distinct firm, so that in an action, under a statute,
in the firm name, causes of action in favor of the old and
new firms cannot be joined. Identity of style, name and
continuity of interest fuse the two bodies into one as little
as where a father and son bear the same name.

Thus, where a person is indebted to A., B. and C, partners as A.
& Co., and after C. has retired and D. taken his place the debtor
becomes indebted to the new firm of A. & Co., composed of A., B.
and D., and makes two notes to A. & Co., one for the former debt

1 And it has been so called under Wagon Co. 14 Neb. 106, 108; Whit-
such statutes in Newlon v. Heaton, man v. Keith, 18 Oh. St. 134, 144.
42 Iowa, 593, 597 ; Leach v. Milburn See Actions in firm name, § 1059.

176

THE FIRM AS- AN ENTITY. §175.

and one for the latter, the two notes cannot be sued upon in the
same action, for the two payees are distinct concerns.'

A mortgage to a firm to secure advances to be made by the
mortgagor will not inure to the holder of notes made by the mort-
gagor to a firm composed of the original partners and a new mem-
ber; ' hence, also, a power granted to. trustees to loan money to a
firm is not a power to lend to continuing partners after death or re-
tirement of one; ° and so a power to a firm is terminated by a
partner retiring.'* And under a statute that a signature is admitted,
unless its genuineness is specially denied, if an action is brought
against D. and M. on a note signed by them as D. & Co., a general
denial by D. admits the genuineness of the signature and that he
is a member, for the firm not being distinct from its members, the
averment is equivalent to alleging that each signed."

§ 175. Taxation of a firm. — The treatment of a firm as an
entity or otherwise, and as having a domicile, frequently obtains
in levying taxes and iu filing its chattel mortgages, and here will
be a convenient place for treating these subjects.

The doctrine of mohilia sequuntur personam makes personal prop-
erty taxable at the residence of its owner and not at the place where
it happens to be. Under the doctrine that the persons compos-
ing a firm, and not the firm itself as an ideal person, is owner, the
property is listed and taxed where the partners live, if they reside
in the same taxing district." So a tax on all persons exercising a
profession can be levied upon each partner separately, although he
practices only in a firm.' This rule of personal property^applies to
water-craft belonging to the firm, for they are migratory in charac-
ter.'

iDyas V. Diokgrave, 15La. Ann. 503. 8 Cook u Port Fulton, 106 Ind. 170 ;

2Abat V. Penny, 19 La. Ann. 289. Peabody v. County Comm'rs, 10

3 Fowler V. ieynal, 3 DeG. & Sm. Gray, 97; Ir/, re Hatt, 7 Up. Can. L.

749 ; 3 M. & G. 500. J. 103. In Taylor v. Love, 43 N. J.
* Jones V. Shears, 4 Ad. & El. 833. ' L. 143, it was said that a firm has no

5 Haskins v. D'Este, 133 Mass. 356. domicile apart from the joint doml-

6 Griflath V. Carter, 8 Kan. 565 (now cile of the partners, although it may
changed by statute, see Swallow v. not be inaccurate to speak of its
Thomas, 15 id. 66) ; Taylor v. Love, domicile, where all the partners live
43 N. J. L. 148. where the business is carried on,

7 Lanier v. Macon, 59 Ga. 187 ; Wil- But if they live in different districts
der V. Savannah, 70 id. 760 ; 48 Am. the place of business does not fix the
Rep. 598. place of taxation for all the prop-

VOL. I — 13 177

§ 176. NATURE AND FORMATION.

If all the partners live in the same town the assessment may be
either against the partners individually or against the firm."

An assessment is only made upon those who are partners at that
time; the fact that a partner has retired without notice of dissolu-
tion does not make him liable to the state, because levying atax is not
giving a credit but is an arbitrary imposition;'' though inter se a
partner who has sold his interest to his copartners has been re-
quired to reimburse them if they have been compelled to pay taxes
upon the entire stock as an incumbrance upon the property sold.'
Yet it was held that an incoming partner must pay the share of taxes
of a retiring partner, whom he has bought out, though not men-
tioned in the schedule of liabilities.*

§ 1 7 6. Many statutes, however,, treat the firm as an independent
owner and tax it and not the partners, and independently of their
residences.' And an assessment even of land to the partnership,
and not to.the separate partners, is proper.' Thus, under a statute
requiring property of a firm or corporation to be listed by the prin-
cipal accounting officer, the managing partner, who lives where the
business is carried on, may properly list the entire assets there, and
the other partner, who lived in another county, need not list his
interest at all.' So an English joint stock company was held to be
so far converted into an artificial body as to be taxable as a com-

erty, wherever situated ; and where ner asking a feduction must show
the firm's business and property was the amount of debts owing and his
in Jersey City, and one partner proportion of them, State v. Par-
lived in Elizabeth and the other ker, 34 N. J. L. 71.
three partners .out of the state, it 2 Washburn w. Walworth, 133 Mass.
was held proper to tax the three 499.

non-residents where the property was ' Evans v. Bradford, 35 Ind. 537.

and the other partner at Elizabeth. < Wheat v. Hamilton, 53 Ind. 256.

A provision that a firm shall pay but 5 Thibodaux v. Keller, 29 La. Ann.

one tax was said to be right in prin- 508, 509 ; Stockwell v. Brewer, 59

ciple, and that it would be unjust Me. 286; Hubbard v. Winsor, 15

arid unequal to tax each partner Mich. 146; Putman v. Fife Lake

separately in addition, Savannah v. Township, 45 id. 125; McCoy v,

Hines, 53 Ga. 616 (of a firm of law- Anderson, 47 id. 502; Williams v.

yers). Saginaw, 51 id. 120; Robinson v,

1 Taylor v. Love, 48 N. J. L. 143; Ward, 13 Oh. St. 293; In re Hatt, 7

State V. Parker, 34 id. 71. And see Up. Can. L. J. 103.

Swallow u. Thomas, 15 Kan. 66. In « Hubbard v. Winsor, 15 Mich. 146.

either case the whole property must 'Swallow v. Thomas, 15 Kan. 66;

be assessed at full value, and a part- Little v. Cambridge, 9 Cush. 298.

178

THE FIRM AS AN ENTITY. § 177.

pany.' An unincorporated joint stock company, with transferable
shares, is a partnership, and taxable as such where the business is
carried on, and the shareholder is not taxed on its property. The
partner's interest .is not the market value of his shares, but an in-
dividual interest in the assets as a tenant in common." That a
firm is taxed by a wrong name is immaterial.'

After dissolution and while the partnership is being wound up,
no division of property is worked, so that the Share of each partner
is to be separately taxed, but it is proper and legal to continue to
tax the firm as before; it still continues for the purpose of closing
up;^ and so in case of (dissolution by death, it is proper to assess
the firm in the firm name, and the taxes are paid out of the part-
nership funds."

§ 177. branch business. — An act requiring the property,

to be taxed where the business is carried on means that subsidiary
activities and operations lacking the fixed character of an establish-
ment having an identity will be drawn to the home establishment.
Hence, a firm of lumber dealers is to be taxed at the home oflice,
where it makes its sales upon lumber which is sawed and shipped
elsewhere, and' is not sent to the home establishment at all;* and
even though a few sales were made, at the place where the lumber
was sawed;' and though the partners themselves have temporarily
gone to the place where the logs are, in order to work upon them."

An excellent jus'tification of this policy is in the fact that the

1 Oliver v. Liverpool & Lonclon L. Contra, Von Phul v. New Orleans,
& F. Ins. Co. 100 Mass. 531. 24 La. Ann. 361.

2 Hoadley v. County Comm'rs, 105 5 Blodgett v. Muskegon (Mich.
Mass. 519. In Gleason v. McKay, 1886), 37 N. W. Rep. 686.

134 Mass. 419, a tax on partnerships, sPutman v. Fife Lake Twp. 45

to be paid on the aggregate value of Mich. 125.

the- capital stock, which was held in ' McCoy v. Anderson, 47 Mich. 503.

assignable shares, was ruled to be 8 Torrent v. Yager, 53 Mich. 606.

unconstitutional. For as a tax on In Barker v. Watertown, 137 Mass. '

property it is not proportional; but 337, a firm had three factories in the

it is not a tax on property, the prop- three different cities of B., N. and W.

erty not being inquired into;' but is Neither of the partners lived at W.,

a tax on the shares, which are the nor were the books kept there. The

property of the individual members, goods made at the factory at W.

and if valid the legislature can select were kept in an adjacent storehouse

any business and tax it. until sold, the sales being chiefly on

i Lyle V. Jacques, 101 111. 644. orders received at B. , one of the part-

* Oliver v. Lynn, 130 Mass. 143. ners going eadh day to the three fao

179

§ 179. NATURE AND FORMATION.

books and papers, from whicli the amount and value of the prop-
erty are ascertainable, are generally kept at the place of business,
and the partner's right of review and correction of the assessments
may not be available elsewhere.'

Stock in trade in a factory, hired by the firm in a town other
than where the principal place of business is, may be taxed at its
locality, as one other than where the owners reside, even if one
partner lives there, for he is not the owner."

If the owners reside elsewhere the tax can be assessed to the per-
son in charge.'

§ 178. Licenses. — A license issued to, or special tax levied upon
a firm, which is required before it can engage in a particular busi-
ness, will inure to a continuing partner after he has bought out
his copartner, and he need not pay again.^ But where the license
is issued to one partner it was held to be a matter 5f personal con-
fidence, and sales by his copartner were held to be illegal.'

§ 179. Filing of chattel mortgages. — The filing of a chattel
mortgage of partners is like the filing of a chattel mortgage by
any joint tenants, and if the latter must file it at the place of resi-
dence of each mortgagor, a partnership mortgage must be filed in
the county or township of each partner,' though the chattels are
in the possession of one partner.'

tories and shipping goods from them Putman v. Fife Lake Twp. 45 Mich,

to customers. It was held that the 125 ; McCoy v. Anderson, 47 id. 503.

firm had a "place of business" at * United States v.^ Glab, 99 U. S.

W., where goods were "employed" 325; State v. Gerhardt, 3 Jones, L.

in its business ,and such goods were 178. Contra, Harding v. Hagar, 63

taxable there. But merely keeping Me. 515.

property in another place in order 6 Webber v. Williams, 36 Me. 513.

that a distinct firm may do work And in U. S. v. Glab, 99 U. S. 235,

upon it is not a having a branch the query was made whether a li-

business, Little v. Cambridge, 9 cense to a firm would have continued

Cush. 398. So if sent there for sale, had the change been by the addition

Fairbanks v. Kittridge, 34 Vt. 9. If instead of the loss of a partner. That

the principal place of business is out a firm can take out a license to sell

of the state, the interest of a resident liquors was said in Lemons v. State,

partner is taxable here, Bemis v. 50 Ala. 180.

Boston, 14 Allen, 366. SBriggs v. Leitelt, 41 MicTi. 79;

1 McCoy V. Anderson, 47 Mich. 503. Stewart v. Piatt, 101 U. S. 731; Rich

«Lee V. Templeton, 6 Gray, 579. v. Roberts, 48 Me. 548; 50 id. 895.

'Danville Co. v. Parks, 88 HI. 170; 7 Morrill v. Sanford, 49 Me. 566.
Hittinger v. Westford, 135 Mass. 358;

180

THE FIRM AS AN ENTITY. § 179.

But in Hubbardston Lumber Co. v. Covert, 35 Mich. 254, where
the statute required chattel mortgages to be filed where the owner
resides, and if he is a non-resident, then where the property is, it
is said that, for many purposes, a firm is a distinct concern, and
possesses a sort of individuality. It has for some purposes an ideal
existence. Its creditors and debtors differ from those of individuals.
A member may be creditor or debtor of it. A member is agent of it
but not of individual interests. It may be taxed and sometimes
sued in firm name. It may have a local abiding place. Hence
a firm chattel mortgage filed where the firm has its residence is
sufficient if executed by all the partners, all of whom live in the
state, but not where the business seat is; it is well filed where they
live. But if executed for the firm by a resident partner, and the
other partner is a non-resident, and the resident partner lives where
the firm is, it is properly filed there, though some oi the property
is in another part of the country.'

The execution of a chattel mortgage by one partner belongs to
the subject of Powers.'

1 Where chattels of one partner are being used as before, this is no

used by the firm and the partner mort- change of possession to protect the

gages them, and it is agreed between unfiled mortgage against other cred-

the mortgagor and mortgagee that itors. Mere words are no change,

the other partner shall retain posses- Porter v. Parmley, 53 N. Y. 185.
aion for the mortgagee, the property ^ g 407.

181

CHAPTER rX.
INTEREST OR SHARE OF EACH.

§ 180. Nature of. — A partner has no specific interest in
any particular chattel or asset, or part of the property of the
firm; his only interest is in a proper proportion of the sur-
plus of the whole after payment of debts, including the
amounts due the other partners.'

From this nature of a share and in view of the delectus
personarum, it follows that upon the death of a partner
the surviving partner alone can wind up the business, and
the administrator's right is to require him to do so; and
so in case of bankruptcy of a partner, whereby he is disquali-
fied to act, the solvent partner has the right to wind up,
• and the assignee gets the bankrupt's surplus, though in case
of bankruptcy the assignee may have to be a co-plaintiff in
actions. So in execution sales of the interest of a partner,
only a share in the surplus passes. And so if a partner sells
his interest to his copartners, claims standing against him
on the books are extinguished, for they are not debts, but
items of the general account.*

§ 181. Presumed equality of. — In the absence of agree-
ment or evidence as to the proportions of profit and loss to
be divided between the partners, the presumption is in favor

1 Farquhar v. Hadden, L. R. 7 Ch. id. 264. Many other cases to this e£-

App. 1 ; Filley v. Phelps, 18 Conn, feet will be found under the subjects

294; Trowbridge V. Cross, 117111. 109; of Exemptions, Executions against

Bopp V. Fox, 63 id, 540 ; Perry v. one Partner and Retiring Partners,

Holloway, 6 La. Ann. 265 ; Douglas v. and Incoming Partner.
Winslow, 20 Me. 89 ; Fern v. Cush- 2 Hence it was even queried, if all

ing, 4 Cushing, 357 ; Tobey «. McFar- the partners lived in another state

lin, 115 Mass. 98; Schalck v. Har- and the place of business was there,

mon, 6 Minn. 265, 269 ; Bowman v. whether the interest of one partner

O'Reilly, 31 Miss. 261 ; Gaines v. could be said to exist in this state so

Coney, 51 id. 328 ; Buflum v. Seaver, as to form the subject of an attach-

16 N. H. 160 ; Mabbett v. White, 12 ment here. Dow v. Say ward, 14 N.

N. Y. 442, 455; Staats v. Bristow, 73 H. 9, 13.

182

INTEREST OE SHARE OF EACH.

§181.

of the equality of the shares. It makes no difference that
one partner has contributed all the capital and the other
only services or skill, for the court cannot set a proportion-
ate value upon these respective contributions. The value of
each partner depends on many things besides his capital,
such as skill, industry, reputation, connection, and the like;
and the silence of the parties naturally signifies an agreed
and conceded equality. It follows from the same reasons
that if the contribution to capital is in unequal proportions,
the profits and losses are not presumably to be shared in the
ratio of the shares of capital, but equally.^

While losses are presumed to be borne in the same ratio
as profits,^ there is no positive rule to that effect.' If the

iFarrar v. Beswick, 1 Moo. & R.
527 ; Bobinson v. Anderson, 20 Beav.
98; 7 DeG. M. & G. 239, of attorneys
employed together in one case;
Collins V. Jackson, 31 Beav. 645;
Webster v. Bray, 7 Hare, 159 ; Stuart
V. Forbes, 1 Macn. & G. 187; 1 Hall
& Tw. 461 ; Copland v. Toulmin, 7
CI. & Fin. 349 ; Stewart v. Forbes,
1 Hall & Tw. 461 ; 1 Macn. & G. 137 ;
Brown v. Dale, 9 Ch. D. 78; Turnip-
seed V. Goodwin, 9 Ala. 372 ; Donel-
son V. Posey, 13 id. 753; Stein v.
Robertson, 80 id. 386; Brewer v.
Browne, 68 id. 210 ; Griggs v. Clark,
28 Cal. 437 ; Roach v. Perry, 16 111.
87; Farr v. Johnson, 25 id. 532;
Remick v. Emig, 42 id. 843, 348;
Taft V. Schwamb, 80 id. 289; Flagg
V, Stowe, 85 id. 164; Ligare v. Pea-
cock, 109 id. 94; Moore v. Barej 11
Iowa, 198; Honore v. Colmesnil; 1
J. J. Mar. 506; Pirtle v. Penn, 8
Dana, 247 (28 Am. Dec. 70) ; Conwell
V. Sandidge, 5 id. 210; Lee v. Lash-
brooke, 8 id. 314 ; Wolfe v. Gilmer, 7
La, Ann. 588; Northrup v. McGill,
27 Mich. 334; Randle v. Richardson,
63 Miss. 176; Henry v. Bassett, 75

Mo. 89; Eatzer v. Eatzer, 28 N. J.
Eq. 136; Buckingham v. Ludlum,'
39 id. 345; Gould v. Gould, 6 Wend.
263; Ryder v. Gilbert, 16 Hun, 168;
Taylor v. Taylor, 3 Murph. (N. Oa.)
70; Jones v. Jones, 1 Ired. Eq. 333;
Worthy v. Brower, 93 N. Ca. 344;
Knott V. Knott, 6 Oregon, 143, 150;
Christman v. Bauriohter, 10 Phila.
115; Whitis v. Polk, 86 Tex. 602.

According to the Scotch law it is
not necessarily presumed thqt part-
ners share equally, but is a question
for the jury, considering all the cir-
cumstances, including good will,
skill, capital, labor, etc., what should
be the share of profit and loss.
Thompson v. Williamson, 7 Bligh.
N. E. 433. And so, also, by two
earlier English cases. Peacock v.
Peacock, 3 Camp, 45; Sharpe v.
Cummings, 2 Dow & L. 504. And
was doubted in Towner v. Lane, 9
Leigh (Va.), 263.

2 See, for example, Flagg v. Stowe,
85 111. 164; Whitcomb v. Converse,

119 Mass, 38, 43; Moley v. Brine,

120 id. 324.

3 Be Albion L. Ass, Soo, 16 Ch. D, 83,

183

§ 18a. NATURE AND FORMATION.

articles or agreement are silent, the books and accounts are
as conclusive as a regular contract, and even more so, for
the contract may be changed by parol. ^

This doctrine must be kept distinct from divisions of cap-
ital and repayment of capital on winding up. It relates
only to dividing profit and loss, but does not alter the treat-
ment of capital, as if a debt, to be first paid before profits
are divided, and in case of impairment to be repaid, less the
equalization of losses.

§ 182. examples. — And if the partnership is composed

of an individual and a firm of two persons, the presumption of
equality will give the firm half the profits as constituting one
partner, and to each member of it, one-half of its half.'

Where one furnished the manuscript of a book and the other
the materials and labor to print and bind it, they were held to be
presumptively equal partners in the gross and not the net profits.'

Where capital was contributed in unequal proportions, and
profits and loss were to be divided in the same proportion, and at
the expiration of the partnership it was renewed, with the excep-
tion that each partner's interest should be equal, this means
equality in the ownership of the capital as well as shares of profit
and loss, and parol evidence of a different intention is not admis-
sible.^

Under articles by which each of two partners should use due
diligence in procuring logs for their mill, and bear equal expense
in procuring them, each does not contract to furnish half the logs,
but to pay half the expenses.'

Where partners engage the partnership funds in an outside spec-
ulation the profit or loss is to be shared in the same proportion as
they share in their other business.'

Where the articles of partnership between two partners require
money to be advanced in equal proportions, and profits to be di-

1 See §311. sPirtle v. Penn, 3 Dana, 347 (28

2 Warner v. Smith, 1 De G. J. & Am. Dec. 70).

S. 337 ; Honore v. Colmesnil, 1 J. J. < Taf t v. Schwamb, '80 111. 389.
Mar. 506 ; Conwell v. Sandidge, 6 » Pence v. McPherson, 30 Ind. 66,
Dana, 310 ; Turnipseed v. Goodwin, 6 Storm v. Cumberland, 18 Grai^ k
9 Ala. 373. Ch. (Up. Can.) 345.

184

INTEREST OR SHARE OF EACH. § 183.

vided in the proportion that the interests of each hear to the total
amount paid in, and on accounting the defendant claimed more
than half profits because he had put in more, the complainant can
show that he had desired and offered to put in an equal amoiTut,
h':t defendant had excluded him from so doing and from informa-
tion as to the amount so necessary to equalize the contributions,
for the provision in the articles was intended to reach a wilful de-
fault, which did not exist here, and if one increased his amount
the other would not be in default until notice thereof and demand
for contribution; and a partner has no right to pay expenses out of
his own pocket when the firm is able to pay, and thus increase his
interest, for each has the right to have the product sold to pay
expenses.'

Where a partner, in partnership five years with his two sons,
put in $1,000 for himself, and each son was to put in $500, their
payments to be made by deduction of that amount from their in-
heritance in his' estate, and in case of dissolution before five years
each son is to be entitled to but flOO for each year, in such case, if
the firm is not dissolved before the end of the term, the $500 of
each son is to be considered an advancement bj' the father and as
if paid in by the sons, and the profits or increase was held divisible
in the proportion of $500 to |2,000, but in case of dissolution
before, each son was to share in the increase in the proportion of
$100 for each year.'

Where defendants formed a business connection with parties in
Porto Rico, agreeing to give'them one-fourth of the business, and
afterwards formed a partnership with plaintiffs, agreeing that
plaintiffs should be one-third interested in shipments to Porto
.Rico, and the defendants are to represent the other two-thirds, it
was held that the plaintiffs are entitled to one-third of the whole
amount, and not one-third of three-quarters only.'

§ 183. Mortgage or sale of a share. — As the share of a
partner is merely a right to a proper proportion of the sur-

1 Fulmer's Appeal, 90 Pa. St. 143. purchase, and the cattle are sold for

2 Fredericks. Cooper, 3 Iowa, 171. $1,120, B. is entitled to one-third and
»Pond V. Clark, 24 Conn, 370. not one-half of the proceeds, since

Where A. has $1,000 of the funds of the funds belonged to A., B. & C.
the firm of A., B. & C, and furnishes The other two-thirda may be treated
it to buy cattle for himself and B., as A.'s as between him and B, Bul-
C. disclaimino' any interest in the lock v. Ashley, 90 III. 103.

185

§ 183. NATURE AND FORMATION.

plus, after payment of partnership debts and adjustment of
balances, it follows that the assignee or mortgagee of the
interest of one partner takes subject to all debts and liabili-
ties, for he can get no greater right than his assignee could
convey. The sale by a partner of his interest in the firm to
a third person has no effect, as we have seen, to entitle the
assignee to admission into the firm, by reason of the delectus
personarum} And such sale, at least in a partnership at
will, dissolves the firm.

Such sale is, however, not entirely inoperative, for it is
effectual to carry the right, after winding up, to such share
of surplus as would otherwise have been due to the partner
in preference to other and unsecured individual creditors.^
Indeed it has been said that the buyer becomes a tenant in
common with the other partners. Tet any analogy to a
tenancy in common is fanciful or rather erroneous. There
is no tenancy in common thereby created in the property or
right to any aliquot part of it; except of course in a min-
ing partnership. The other partners have the sole right of
possession and of winding up, and a complete power of dis-
position. The buyer or mortgagee of the share of one part-
ner has a mere right to receive the share of a surplus which
would otherwise have been allotted to his assignor, and his
right, therefore, is a jus in personam and not ajws in rem?

1 § 158. rights nor transfer to him the newly

2 Thompson v. Spittle, 102 Mass. acquired property. In Mosely v.
207, and cases cited in this chapter Garrett, 1 J. J. Mar. (Ky.) 212, it
generally. was held that if one partner mort-

3 The assignee was distinctly held gages his interest to secure indorsers,
not to be a tenant in common in and procure funds for the firm, the
Bank v. Railroad Co. 11 Wall. 624; other partner could not divert the
Donaldson v. Bank of Cape Fear, 1 fund mortgaged from the contem-
Dev. Eq., 103 (18 Am. Dec. 577;. In plated purposes and apply it to other
Tliompson v. Spittle, 102 Mass. 207, partnership debts. In Jones v.
210, it was said that a mortgage by Neale, 2 Patt. & H. (Va.) 339, it wa8
one partner of his interest in a firm held that a conveyance by one part-
and its property could not take ner to secure a partnership creditor
efEect upon subsequently acquired would pass a good title, both in law
property, and that the purchase of and equity, to his individual moiety,
other goods, and mingling them, superior to the claims of other parl-
cou^d neither divest the mortgagee's nership creditors ; but not so of a

186

INTEREST OR SHARE OF EACH.

§184.

§ 1 84. Hence a partner cannot give to his individual cred-
itor a specific lien upon partnership property or upon his
interest in it to overreach the general lien of his copartners
or the priority of the partnership creditors. Thus, if a part-
ner mortgage or sell his interest in the assets, the mortgagee
or assignee is entitled only .to the share of the partner in
the surplus after satisfaction of aU partnership claims.^
And though the mortgage be upon partnership real estate.^
So if he conveys it absolutely.' So a chattel mortgage by a
partner in his ovsrn name passes no title in the property.* So

conveyance to secure a separate N. Ca. 470 ; Burbank v. Wiley, 79 id.

creditor; but see § 548. 501 ; Bank v. Sawyer, 38 Oh. St. 339;

1 Smith V. Parkes, 16 Beav. 115; Hunt v. Smith, 8 Rich. Eq. 465;

Fox V. Hanbury, Cowper, 445 ; West White v. Dougherty, Mart. & Yer.

V. Skip, 1 Ves. Sr. 339; Young v. (Tenn.) 309; Williams v. Love, 3

Keighly, 15 Ves. 557; Bentley v. Head, 80; Stebbins v. Willard, 53

Bates, 4 Younge & C. 183, 190; Vt. 665; Jones i). Neale, 2 Patt. & H.

Warren v. Taylor, 60 Ala. 318; Chase (Va.) 339.

V. Steel, 9 Oal. 64 ; Burpee v. Bunn, 2 Jones v. Parsons, 35 Cal. 100 ;

23 Cal. 194 ; Jones v. Parsons, 35 id. Beecher v. Stevens, 43 Conn. 587 ;

100; Sheehy v. (Jraves, 58 id. 449; Fil- Whitmore v. Shiverick, 8 Nev. 288;

ley V. Phelps, 18 Conn. 394 ; Beecher Tarbell v. West, 86 N. Y. 380 ; Tarbel

V. Stevens, 43 Conn. 587 ; Sutlive v. Bradley, 7 Abb. N. Cas. 373 ; Miller

V. Jones, 61 Ga. 676; Shawt'. McDon- v. Proctor, 20 Oh. St. 443; Bank v.

aid, 21 Ga. 395; Smith u Andrews, Sawyer, 88 Oh. St. 339.
49 111. 28; Kistner v. Sindlinger, s Bank w. Railroad Co. 11 Wall. 624;.

33 Ind. 114; Smith t). Evans, 37 Ind. Burpee u Bunn, 23 Cal. 194; Marks

526;Conantt'. Frary, 49 id. 530; Henry v. Sayward, 50 id. 57 {dictum) ; Yale

V. Anderson, 77 id. 381 ; Deeter v. v. Yale, 13 Conn. 185 ; 33 Am. Dec.

Sellers, 103 id. 458; Fargo u Wells, 393; Matlack v. James, 13 N. J. Eq.

45 Iowa, 491 [dictum); Hodges v. 136; Rosenstiel v. Gray, 113 111. 383;

Holman, 1 Dana, 50; Whitmore v. Holland u Fuller,13 Ind. 195; Donald-

Shiverick, 3 Nev. 3S8 ; Lovejoy v. son v. Bank of Cape Fear, 1 Dev. (N.

Bowers, 11 N. H. 404; Receivers of Ca.)Eq, 103; Rodriguez u Heffernan,

Mechanics' Bank v. Godwin, 5 N. J. 5 Johns. Ch. 417 ; Ross v. Hender-

Eq. 384 ; Matlack V. James, 13 id. 136 ; son, 77 N. Ca. 170; Boy ce u Coster,

Hiscock V. Phelps, 49 N. Y. 97, 103-4; 4 Strob. (S. Ca.) [Eq. 25; Williams v.

Tarbell v. West, 86 id. 380; Tarbel Love, 3 Head, 80.
V. Bradley, 7 Abb. N. Cas. 373; 4 Clark v. Houghton, 13 Gray, 38;

Williams v. Lawrence, 58 Barb. 320, Deeter «;. Sellers. 103 Ind. 458; Smith

324 ; Bank of N. Ca. v. Fowle, 4 v. Andrews, 49 111. 28 ; Yale v. Yale,
Jones' Eq. 8; Ross v. Henderson, 77 18 Conn. 185; 33 Am. Dec. 393.

187

§ 186. NATURE AND FORMATION.

of the lien upon partnership real estate of a judgment
against one partner.'

If the conveyance by a partner of his interest be a sale of real es-
tate, of which the legal title is in the partners as tenants in com-
mon, the vendee necessarily gets the legal title of a specific undivided
share, and in an action by him to- recover this, the partners must
plead that it is the property of an unsettled partnership or that the
seller was indebted to the firm, making equitable defense in an
action at law.''

In Beecher v. Stevens, 43 Conn. 587, by an agreement of both
partners, one sold out his interest in the firm to a third person in
order that the latter might form a pa!rtnership with the other, and
deeded to him an undivided half of real estate constituting part of
the assets, the buyer mortgaging it back to the retiring partner to
secure the purchase price and payment of his share of debts, and
the new firm afterwards made mortgages to subsequent creditors.
The former mortgage was held to be the prior lien and not to be a
mortgage of individual interest on mere surplus; nor is it a mort-
gage on the interest of the new member in the new firm, for then
the equity of later creditors could have been asserted against it by
the other partner, but is a mortgage on the interest of the old mem-
ber in the old firm.

In Maxwell v. Wheeling, 9 W. Va. 206, M., of M. & McK., part-
ners, conveyed all his interest in the firm to S. to secure an indi-
vidual debt due to a third person. S. sold the property under the
trust at auction, and McE. bought it, paying S. in cash. Firm
creditors, after this, garnished the cash in S.'s hands as partner-
ship property. It was held to be M.'s individual money, and the
creditors must look to the property in McK.'s hands, for M. could
sell to S. only his own interest, that is, his share after the creditors
were paid, and, therefore, did not sell partnership property,

§ 185. Subject to subsequent firm debts. — But his inter-
est, mortgaged or sold, is subject not only to existing lia-

1 Johnson v. Rogers, 15 Bankr. Reg. an assignment by one partner of his
1 ; 5 Am. Law Rec. 536. See § 186. interest in a note which the other

^McCauley v. Fulton, 44 Cal. 355. subsequently collected and was then
See Marks v. Sayward, 50 id. 57, an sued for the half by such assignee,
application of the same doctrine to the defendant must plead his lien.

188

INTEREST OR SHARE OF EACH. § ISO.

bilities, but also to subsequent equities, and the claims of
subsequent creditors and the fluctuations of business.
Hence, though the partnership debts are later in date than
the mortgage or assignment of the share, yet the mortgagor
gets only the interest in the surplus as of the date of its
ascertainment or of the foreclosure, and not as of the date
of its execution or of default.^

And where the partnership, being for a fixed and unex-
pired term, is not dissolved, and the other partners do not
choose to apply for dissolution, their right to continue the
business at the risk of diminishing the assigned share is not
affected, although they have notice of the sale or incum-
brance.*

In Lovejoy v. Bowers, 11 N. H. 404, fclie mortgagee of one part-
ner in a specific part of the partnership property, to wit, forty-six
horses and four stages of a stage partnership, whether he could
have insisted on'a dissolution or not, which was not decided, did not
do so and the business continued. It was held that a partner can-
not mortgage or sell his undivided interest in a specific part of the
partnership property, and that even if the mortgaged property
comprised the entire assets so that the mortgage was of the share
of the surplus, it would not avail against creditors, whether prior or
subsequent, and the mortgagee's right was only in the surplus as it
stood when the dissolution took place; and the suggestion was
made that all the property taken may have been supplied by sub-
sequent creditors, or drawn from profits on contracts with them.

§ 186. and sul)seq[uent conveyances. — Hence, if the

title of the property is subsequently conveyed as a partner-
ship act, whether by all the partners uniting in selling it, or by

1 Cavander v. Bulteel, L. E. 9 Ch. N. J. Eq. 334, 338 ; Hiscock v. Phelps,
App. 79:; Kelly v. Hutton, 3 id. 690; 491^. Y. 97, 103-4; Bank of N, Ca. v.
Whetham v. Davey, 30 Oh. D. 574; Fowle, 4 Jones (N. Ca.), Eq. 8; Bur-
Lindsay v. Gibbs, 3 DeG. & J. 690; bank «. Wiley, 79 N. Ca. 501; Bank
Guion V. Trask, 1 id. 379; Beecher v. Sawyer, 38 Oh. St. 839; Page v.
V. Stevens, 43 Conn. 587 (dictum) ; Thomas, 43 id. 38, 44-5.
Conant v. Frary, 49 Ind. 530 ; Church- 2 Whetham v. Davey, 30 Ch. D.
ill V. Proctor, 31 Minn. 139; Love- 574; Cavander v. Bulteel, L. E. 9 Ch.
joy V. Bowers, 11 N. H. 404; Receiv- App. 78; Kelly v. Hutton, 3 id. 703;
era of Mechanics' Bank v. Godwin, 5 Redmayne v. Forster, L, K. 3 Eq. 467.

189

§ 186. NATURE AND FORMATION.

a single partner conveying it in the due exercise of his power
as a partner in the scope of the business, the second sale
conveys a title discharged of all lien or right under the pre-
vious individual act of mortgaging or assigning a separate
share.*

Thus, where T. & H. were deeply involved, and T., to pay his
private debt, gave a bill of sale of a horse belonging to the part-
nership to the plaintiff, his creditor, and afterwards he gave a bill
of sale of the same horse to a partnership creditor, the latter is en-
titled to hold the horse against the claim of the former.' And
where one partner mortgaged his interest, described as one-half, in
certain property of the firm, to secure his individual debt, and the
other partner subsequently sold and delivered the property in order
to get money to pay a partnership debt, the buyer's title is good as
against the mortgagee. The opinion somewhat limits this by mak-
ing the insolvency of the firm an element, regarding the mortgage
as a lien upon the partner's surplus, the proof being that there was
no surplus.'

A judgment for his separate debt against one partner in
whose name is the title of real estate of the firm will be
postponed to subsequent mortgages or sales by the firm
and to partnership debts and 'equities,* and if a cloud on the
title will be removed."

And so, if the property is attached or sold on execution
against the firm, the buyer's title is unincumbered by such
mortgage.®

iCavanderu Bulteel, L. R. 9 Ch. of Georgia, S4 Ala. 37; Evans v.

App. 79; Jones v. Parsons, 25 Cal. Hawley, 35 Iowa, 83; Kramers v.

100; Yale v. Yale, 13 Conn. 185; 33 Arthur, 7 Barr, 165; Lancaster Bank

Am. Dec. 393; Shaw V. McDonald, 31 v. My ley, 13 Pa. St. 544; Meily u.

Ga. 395; Tarbell v. West, 86 N. Y. Wood, 71 Pa. St. 488 (rev. 8 Phila.

280; Tarbel V. Bradley, 7 Abb. N. Gas. 517); Willis v. Freeman, 35 Vt. 44;

273; Bank v. Sawyer, 38 Oh. St. 338; Johnson v. Rogers, 15 Bankr. Reg. 1;

Bentley v. Bates, 4 Young. & C. 182, 5 Am. Law Rec. 536. Contra, Blake

190. But see Tread well v. Williams, v.' Nutter, 19 Me. 16.
9 Bosw. 649. 5 Evans v. Hawley, sti/pra.

2 Yale v. Yale, supra. 6 Smith v. Andrews, 49 HI. 28;

»Shaw V. McDonald, 21 Ga. 395. Robinson v. Tevis, 38 Cal. 611 ; Com-

<Lake«. Craddock, 3 P. Wms. 158; mercial Bank v. Wilkins, 9 Me. 28;

1 Eq. Cas. Abr. 290; Coster v. Bank Hill v. Wiggin, 31 N. H. 292; Staata

190

INTEREST OR SHARE OF EACH. § 187.

Thfts, where W. & R., being partners as bakers, W. gave a mort-
gage on a horse and wagon of the firm for a private debt without
R.'s knowledge; a partnership creditor subsequently attached the
horses and wagons against the protest of the mortgagee, who then
sued the sheriff in trespass, but it was held that his mortgage gave
him no interest in the property which cut off the other partner or
creditors from subjecting it.'

In Tarbell v. West, 86 N. Y. 280, a partner made a mortgage
upon his interest in the firm, which included real estate held in the
name of another partner and also chattels, and the mortgage
was recorded both as a real estate and as a chattel mortgage; the
firm was then organized into a corporation, which bought out all
the firm's property and business; it was held that the corporation
received the property free of the mortgage although such partner
was a director in it; that a mortgage by a partner conveys nothing,
■.md a buyer from the firm, either during the partnership or in
winding up, gets title discharged of it, whether he had notice or
lot.

§ 187. Assignee's rights. — But the assignee of a share, of
course, incurs no personal liability for a deficit in case the
'share will not pay debts and balances, and no personal judg-
oient can be awarded against him, unless he has agreed to
assume that burden; ^ and so even if he is ta,k:en into the
firm, he is not deemed to assume existing debts.' If the
concern has transferable shares, it gives a partner a right
to convey his interest with its antecedent liability, and such
is the meaning of a transfer in such cases, as in a corpora-
tion;* and in case of a banking partnership with transfer-
able shares, where a partner may become indebted to the firm
in his capacity as customer of the bank, there is no lien
upon his shares unless the articles specially reserve it, the
right to ^ell shares being a main inducement to take them.'

V. Bristow, 73 N. T. 264; Kistner v. Phillipsv. Blatchford, 137 Mass. 510;

Sindlinger, 33 Ind. 114; Whitmorev. Baird's Case, L. R. 5 Ch. App. 725.

Shiverick, S Nev. 288. But see Late v. Munford, 4 Sm. &

1 Smith V. Andrews, 49 111. 38. Mar. 312.

2 Hunt V. Smith, 3 Rich.'Eq. 465. spinkett v. Wright, 2 Hare, 120;

3 See § 507. s. c. as Murray v. Pinkett, 12 CI. &
* Mayhew's Case, 5 DeG. M. & G. Fin. 764. See Spence v. Whitaker, 3

837 ; Savage v. Putnam, 33 N. Y. 501 ; Porter (Ala.), 397.

191

§ 188. NATURE AND FORMATION.

Incident to the right of the assignee or mortgagee to share
in the surplus is the right to enforce a settlement of the
partnership accounts in order to ascertain if there is any-
surplus; and he may also foreclose and in the same suit de-
mand an accounting.*

Where real estate is in the name of one partner, a bona
fide mortgagee or buyer from him for value without knowl-
edge of the firm's interest would be protected.^

§ 188. Mortgage of share to a partner. — The same rules
apply when the partner receives instead of giving a mort-
gage upon an interest. Thus, a mortgage to one partner on
partnership property to secure a return to him of his capital
puts him in no better position than before, for, as against co-
partners, he already has a lien, and as to creditors the mort-
gage is not available.'

Thus, if one of three partners buys out another, the interest pur-
chased by him is subject to the claims of the third partner on such
share; and if the third partner pay a debt, he may be entitled to
charge two-thirds of it to the buying partner.^ So, if a partner
sells out his interest to a third person, who is thereupon taken into

1 See g§ 937, 928. For as the lien no knowledge ; but here he at least
of the other partners is not affected had notice that there was a partner-
by the mortgage of an interest, they ship. Settembre v, Putnam, 30 Gal.
cannot prevent a foreclosure of the 490. A mortgagee of the share of a
mortgage. Smith v. Evans, 37 Ind. partner in real estate without notice
.526. As to the right to wind up a of the partnership, if to secure a pre-
partnership for a fixed term not yet existing debt of such partner, is not
expired, see § 585. a holder for value, but takes subject

2Dupuy V. Leavenworth, 17 Cal. to partnership liabilities. Hiscockw.
362; Reeves v. Ayers, 38 111. 418; His- Phelps, 49 N. T. 97, 103-4; Lewis v,
cock V. Phelps, 49 N. Y. 97 (s. c. be- Anderson, 30 Oh. St. 381, 285. But
low, 3 Lans. 106) ; Lewis u Anderson, see Reeves v. Ayers, 38 111. 418.
30 Oh. St. 281, 285; Miller v. Proctor, 'Irwin v. Bidwell, 73 'Pa. St. 344,
id. 442, 448 ; Mason v. Parker, 16 350. The mortgage itself is not part-
Grant's Ch. (Up. Can.) 330. As to nership assets, Niagara Co. Nat.
what constitutes notice of the part- Bank v. Lord, 33 Hun, 557; but has
nership, see § 395. Where the title been held good in the hands of a bono
to a mine is in two partners, a pur- fide buyer as against creditors. Scud-
chaser of the interest of one holds der v. Delashmut, 7 Iowa, 39. See
subject to the trust in favor of other Reid v. Godwin, 43 Ga. 537.
partners, of whose existence he had *Kendrick v. TarbeU, 37 Vt. 5124

193

INTEREiST OR SHARE OF EACH. g 18».

the firm, and the retiring partner taiies a mortgage from the vendee
of the share sold to secure the purchase money, or reserves a lien
upon it, this lien is subordinate to the claims of the other partners
for debts and balances.'

So, where L., of L. & A., sold out all his interest to A., who gave
him a mortgage on the partnership property to secure the purchase
money and his liability for debts, the property being sold by con-
sent and the money being in L.'s hands, he can appropriate it to
pay partnership debts before paying A.."

Where M., of H. & M., partners owning real and personal
property, sold out to his partner H. all his interest in the firm in
consideration of H.'s promise to paj"- the debts and pay him |1,500,
and H. mortgaged the real estate, which still stood in the names of
both, to a partnership creditor, the mortgagee having foreclosed, is
entitled to a decree for the title against both, for H.'s mortgage
was of half the legal title and the entire equitable title, and the
claim for a firm debt is prior to his claim, which is for an individual
debt.'

§ 189. Whether sales of shares separately is a sale of the
whole. — A most interesting question, on which courts have
differed, arises: whether or not a transfer of his share by
each of the partners separately will convey the entire inter-
est of the firm, leaving nothing for the partnership creditors
except the individual responsibility of the former partners;
or whether such transfer, like the transfer of a single shai'e,
is of the surplus only after settlement of liabilities, which
is all that an individual partner has.

On the one hand it is urged that to convert the a,ssets of
the firm into separate property of each partner, or of those
claiming under each, requires the concurrence of each part-
ner. On a transfer by each partner individually of his re-
spective interest, each still retains his personal right to
have the assets applied to indemnify him against the part-
nership debts, and the sale is subject to those debts. The
title of the firm as between it and its creditors is not divested

1 Conwell V. Sandidge, 8 Dana, 373 ; 2 Low v. Allen, 41 Me. 248.
Savage v. Carter, 9 id. 408, where the 3 Seaman v, Huffaker, 31 Kan.
lien was reserved on specific prop- 254.
erty.

Vol. 1 — 18 193

§ 189 NATURE AND FORMATION.

as to the corpus of the property, or at least as to so mucn
as is necessary to pay debts, by separate transfers to stran-
gers. If a retiring partner selling out to his copartners
loses his lien it is because the concurrence of all in the con-
version of the property has been had. And even if the firm
altogether sell, if the sale is not bqna fide creditors can at-
tack it.

A. sale of the interest of one partner, whether voluntary
or on execution, which confessedly carries an interest in-
cumbered by debts, or, in other words, a share in a surplus
left after settlement of liabilities, if after this a sale of the
other partner's interest is to deprive the latter of his right
to require the assets to be applied to debts, and hence de-
stroy the foundation of the preference of joint creditors in
the assets, involves the absurdity that the latter sale con-
verts the interest purchased at the former sale from an in-
terest on the surplus to an interest in the corpus of the
property.

In Menagli v. Whitwell, 52 N. Y. 146 (11 Am. Rep. 683), a firm
consisting of three partners was insolvent. One partner gave a
chattel mortgage to A. on his interest, described as being three-
fiftlis of the factory, property, accounts, etc., to secure his individ-
ual debt. Another partner gave a like mortgage for alike purpose
to B., and the third partner sold out his so-called one-fifth interest
to C. The mortgagees took possession, under the mortgages which
gave that power, of their undivided interests, and on foreclosure
the interests were purchased by different persons. Judgments
against the firm were obtained by partnership creditors, and execu-
tions thereunder were levied upon the property after these transfers
on foreclosure. It was held, on the grounds stated above, that the
buyers from the individual partners obtained only their interest in
the surplus and that the property was still subject to levy by joint
creditors. Rapallo, J., in criticising the Pennsylvania cases here-
after noticed, and in order to show the injustice of the contrary
view, puts a case where a firm is solvent, while its members indi-
vidually are insolvent, to show the injustice of a doctrine that
would exclude the joint creditors. Thus, suppose a firm of three
equal members, having assets worth $300,000 and owing debt§ of
$150,000. Here the interest of each partner is $50,000. Now if

]91

INTEREST OR SHARE OF EACH, § 189.

the members, are individually indebted, and one sells his interest
for f 50,000 and the share of another is sold on execution at $50,000,
its full value, the equity of the joint creditors can he worked out ,
through the equity of the remaining partner and those who have
sold can be protected, the purchasers of the interests receiving the
surplus only, and joint creditors can still levy. But under the
Pennsylvania doctrine a sale by the third partner converts the in-
tei'ests of the former buyers from an interest in the surplus to
shares in the corpus of the property, thus doubling their value, and
appropriating the fund which should have gone to pay the joint
debt to the individual transferrers without any consideration.

In Osborn v. McBride, 3 Sawy. 590; 16 Bankr. Eeg. 22, judg-
ments were rendered against each partner separately in favor of an
individual creditor of each, and under them the property of the
partnership was sold on separate executions and separate sales to
the plaintiff in the actions. He was held to have acquired only a
right to an account subordinate to the claims of joint creditors,
and could not hold the property against the subsequent assignee in
bankruptcy of the firm.'

In Commercial Bank v. Mitchell, 58 Cal. 42, a joint and several
note was signed by each partner for a partnership debt. The
holder sued the partners upon it as individuals and not as a firm,
and got out an attachment which was levied on the separate inter-
ests of the defendants in the joint property. A subsequent attach-
ment in an action against the firm was held to be the superior lien,
on the ground that the interest of the partners was the balance
after the debts are paid.

In Caldwell v. Bloomington Mfg. Co. 17 Neb. 489, A. & B., a
firm, being insolvent, A. made a bill of sale of his interest to S. to
pay or secure his individual debt, and B. made a similar bill of sale
of his interest to C. for his individual debt due C, S. and C. claimed
to have divided the assets between themselves under their mort-
gages, but the fund realized by foreclosure of a mortgage prior to
theirs was held to be subject first to the claims of partnership cred-
itors.

I The earliest case upon the subject of the same creditor on partnership
had been that of Brinkerhoflf v. Mar- debts, and the partnership property
vin 5 Johns. Ch. 320, in which each was held to be bound, as there was
partner had successively confessed a one consolidated judgment for the
iudgment against himself in favor whole against both partners.

195

§ 190. NATURE AND FORMATION.

In Maxwell v. Wheeling, 9 W. Va. 206, M., of M. &McK., afirir.
conveyed ' all his interest to S. to secure his individual debt to a
third person. S. sold the property under the trust at auction, and
McK. bought it, paying S. in cash. This cash was held not subject
to judgment creditors of the partnership, in S-'s hands, as beina'
joint property, and that the creditors must look to the property in
McK.'s hands, for M. did not sell partnership property to S., but
could sell his own share only.

In New Hampshire, levies by separate creditors of each of th^
partners were held subordinate on distribution of proceeds to a sub-
sequent levy by a partnership creditor.'

§ 190. Contrary rulings. — On the other hand it is urged
that although the joint effects belong to the firm and not to
the partners, each of whom is entitled only to a share of
what may remain after payment of the partnership debts,
and consequently no greater interest can be derived by a pur-
chase of such share, either by voluntary assignment or sale
On execution, for the sale is not of chattels, but an interest
incumbered with the joint debts, yet as the partnership
creditors' priority on distribution arises because the partner
Avhose share has not been sold has the right to insist upon
the application of all the assets to the debts for his own pro-
tection in order to receive his share unincumbered, or to di-
minish his personal responsibility, and the courts will use
this right for the benefit of the creditors whenever the fund is
in its hands, as is sometimes said by a species of equitable
subrogation, and the joint creditors have no lien arising out
of any preference inherent in their relation as creditors,
hence where the copartners have lost their right to insist
upon such application, the foundation for asserting a prefer-
ence to joint creditors is gone.

1 Tappan v. Blaisdell, 5 N. H. 190 ; was ruled that an assignment for ben-
Jarvis v. Brooks, 7 Foster, 37 ; 59 Am. efit of creditors, by each of the part-
Dec. 359. It will be seen, however, nersof his separate property conveys
hereafter, that in this state the cred- no partnership property, and hence,
iter has more than a mere derivative on discharge in insolvency, the part-
equity, but has an inherent priority, nership creditors can still sue and at-
not dependent upon the equity of tach. Glenn i;. Arnold, 56 Gal. 631;
the partners ; and in Galif ornia it Freeman v. Campbell, id. 639.

196

INTEREST OR SHARE OF EACH. § 190.

This view of the law was adopted in Doner v. Stauffer, 1 Pa.
(Penrose & Watts) 198, where Howry v. Eshelman were in part-
nership and separate creditors of each obtained judgments against
each, and were successively levied upon the interest of each in
the firm, and the partnership property was simultaneously sold
under them and the proceeds paid into court. But the firm was
largely insolvent, and the unpaid claims of partnership creditors
exceeded the proceeds, and one of the partners was greatly inter-
ested in having them paid in order to legsen his individual liability.
Gibson, C. J., says that, had the sales of the interest of each been
successive, the first sale would have passed the interest of one part-
ner, subject to the equity of the copartner, the execution creditor
receiving the price, and the second sale would have passed the in-
terest of the copartner, including this equity, to the same pur-
chaser. That a r simultaneous sale - of the whole was in legal
contemplation a separate sale of the interest of each, and there-
fore made no difference in the result. That had there been separate
purchasers of the share of each, the question might arise whether
>they stood in the relation of partners so as 'to enable the joint
creditors to follow the goods, but it seems to him they would not.
That it is conceded that the goods' in the hands of the buyers are
not subject to creditors' claims, and the proceeds cannot be substi-
tuted for the goods because the partners' lien is gone.

This decision is followed by two others in that state,' one of
which held if each partner sells his interest in the .property and it
is sold on executions against each, the partners' lien is waived and
the creditor's priority is gone. And the other," where each part-
ner assigned his private property and his interest. in the firm on
successive days to the same assignee, held, that there was nothing
left in the partners through which partnership creditors could take,
and therefore the sheriff could not levy for a partnership debt.'

In Couchman v. Maupin, 78 Ky. 33, a creditor of the partners
as individuals, and not as a firm, got judgment and placed one exe-
cution in the hands of the officer, and by the law of that state it

1 Coover's Appeal, 29 Pa. St. 9 the interest of one partner is sold

fafPg 3 Phila. 387). the proceeds are not partnership

^McNutt V. Strayhorn, 39 Pa, St. assets, because it is his property and

269. not the joint property which is sold,

8 And yet in Pennsylvania the Jones' Appeal, 70 Pa. St. 169.
usual doctrine is recognized that if

197

§ 190. NATURE AND FORMATION.

became a lien from such time; before actual levy tbe partners
conveyed all the assets to a trustee for tbe benefit of partnership
creditors. The execution creditor was held to have the preferable
lien. The reasoning of the court is that creditors have no lien
except what is derived from or through the partners by equitable
subrogation, the partners' lien being to secure to each his rights,
and not for the protection of creditors, and if no partner can
assert his lien the creditors are equally unable to do so; and it
makes no difference whether the partners' lien is lost by voluntary
waiver or by operation of law; and as the, debt here was the debt
of each, the lien cannot be used to protect a partner against his
own debt; hence, partnership creditors can get no lien prior to
that held on a joint debt of the individual partners.'

In Kimball v. Thompson, 13 Met. 283, if a partner, with the
consent of the other partner, sells his half of the effects of the
firm to a third person without fraud, and the other partner then
sells his half to the same person, the latter gets a good title against
all the world and creditors cannot object. But here there was a
concurrent intention of both partners to determine the joint
ownership.*

1 s. p. Saunders w.ReiUy, 105 N.Y. IS. each partner, seems to have made
>In Norris V, Yeruon, 8 Rich. L. 13, separate assignments of his share.

198

CHAPTEE X.

THE FIRM NAME.

§ 191. Rationale of. — It is usual for partners to adopt a
firm or partnership name or style ;^ for convenience of
designation and in trading partnerships, this convenience is
so great as to almost be a necessity.

But as a partnership is not a person distinct from its mem-
bers, the only office for a firm name is identification and
convenient abbreviation except in limited partnerships,^ as
the agreed sign or adopted symbol to represent and include
the individual names the same as if each was separately
given, but with the additional signification that a partner-
ship act is denoted by using the joint name; ' for the pres-
ence of the separate individual names does not nfecessarily
show this unless an intention to do a partnership act is also
present, either expressly or by implication derived from the
nature of the act.* In other words, though the fact of a firm
name implies the fact of a firm,* yet the converse is not
true — a partnership does not involve a name. '

This name may contain the name of one or more or aU
the partners, or the names of one or more with a collective
designation, or may be purely fanciful, and in this country
may be a corporate name. The use of the collective designa-
tion "& Co." creates a presumption that there is a partner

1 The word firm means the name, partner can foreclose. Bolckow v.
from the Italian ^rmare — to sign or Foster, 25 Grant's Ch. (Up. Can.) 476.
subscribe, and only derivatively de- 2 gee Bates on limited Partner-
notes the body. See Churton v. Doug- ships, p. 73.

las, H. V. Johns. 174, 189. As refer- 3 Haskins v. D'Este, 133 Mass. 356 ;

ring to the body, it is synonymous Ferris v. Thaw, 5 Mo. App. 279, 388;

■with partnership ; thus, where a rec- Baring v. Crafts, 9 Met. 380, 393.

ord finds a mortgage was to secure * See § 458.

the " firm " it does not mean as ten- 5 Fulton v. Maccracken, 18 Md,

antsin common; hence the surviving 538,544.

199

§ 192. NATURE AND FORMATION.

in addition to the one or to those whose names appear; * but
this is rebuttable.'' Hence a name is not an organic or in-
dispensable part of the existence of a partnership.' Hence,
also, in an action against partners, it is not necessary to
prove that they had a name, or if a name be averred it is
not necessary to prove it if it be charged and proved that
the partners made a promise in the name used in the prom-
ise.'' And in an action by partners, the allegation that they
did business under a stated name is not material and need
not be proved.'

§ 192. Name of one as a firm name. — The name of a sin-
gle partner may be and often is adopted as the firm name."
In such case a note, bill or contract in the individual name
of such partner may be his individual promise or a part-
nership transaction, which is open to proof. Prima facie
the contract is what it purports to be, the individual matter
of the signer; but it may be shown to have been made by
the authority or for the -purposes of the firm, or that credit
was given to the firm by reason of declarations of the part-
ner that it was for the partnership.'

1 The Francis, 1 Gall. 618; The San .Pursley v. Ramsey, 31 Ga. 403; Kit-
Jose Indiano, 2 id. 268; Ferguson v. ner v. Whitlook, 88 111. 513; Getchell
King, 5 La. Ann. 643; Whitlock v. v. Foster, 106 Mass. 43, 47; Haskins
MoKechnie, 1 Bosw. 437; Armstrong v. D'Este, 183 id. 356; Ontario Bank

' V. Robinson, 5 Gill & J. 412. Contra, v. Hennessey, 48 N. Y. 545.

Robinson v. Magarity, 28 111. 423 (a ^Lea v. Guice, 13 Sm. & Mar. 656 ;

distum). Lessing v. Sulzbacher, 35 Mo. 445.

2 Whitlook V. McKechnie, supra; Drake v. Elwyn, 1 Gaines, 184 (not
Ferguson v. King, .SMjara/Charman overruled on this point in s. C. 1 N.
V. Henshaw, 15 Gray, 293. And T. 243.)

where a note is payable to the firm, 5 Stickney v. Smith, 5 Minn. 486.
but no such firm exists, the person to 6 As in Kirk v. Blurton, 9 M. & W.
whom the note is given may assume 284; Manuf. & Meoh. Bank v. Win-
such firm name in order to indorse ship, 5 Pick. 11; Winship v. Bank of
the note over. Blodgetti;. Jackson, U. S. 5 Peters, 529.
40 N. H. 21. For the effect upon a 7See§443; Yorkshire Banking Co.
priority of business creditors over v. Beatson, L. R. 4 C. P. Div. 204;
separate creditors where a person Winship u Bank of U. 8. 5 Pet. 529;
carries on business by himself, but Strauss v. Waldo, 35 Ga. 641 ; Thei-
in a firm name, see § 106. len v. Hiinn, 27 Kan. 778. In Bank
• LeRoy v. Johnson, 2 Pet. 186, 198 ; of Rochester v, Monteath, 1 Den.

200

THE FIRM NAME. § 194.

§ 193. Changing or adding another name. — Partners may
change their name if they desire, and this is not a dissolu-
tion and formation of a new firm, and does not release or
terminate contracts, made with or by, or obligations to and
from, the partners under the former name.^

Hence the partners may by a usage recognize a certain
name as representing the firm, as effectually as if ex-
pressly agreed upon in the articles of partnership; as by
signing notes made in a certain way, or paying bills drawn
on it in that name,^ or making out the books, bills and ac-
counts, or advertising in a firm name,' so, also, printed
cards are evidence of the name of the firm,* and may bring
an action in their individual names on obligations made to
them in a name not formally adopted by them or varying
from the correct name/

§ 1 94. Suhstituting firm for' individual names, and vice
versa. — A note payable to partners individually may be in-
dorsed over by using the firm name,^ and a note payable to
a firm may be indorsed over by using all individual names
in the indorsement. Thus, where a note was payable to J.
J. & J. P. Kirk, and was indorsed thus: John J. Kirk, Geo.

403; 43 Am. Dec. 681, one of the ^Pursley v. Ramsey, 31 Ga. 403;
names was that of a person not a Jemison v. Minor, 34 Ala. 33;- Pal-
partner. In Mississippi there is a mer «. Stephens, 1 Den. 471; Folk v.
statute that if a person transact Wilson, 31 Md. 588.
business as a trader in partnership 'Le Roy v. Johnson, 3 Pet. 186,
■without the words & Co., or by a 198-

like designation fail to disclose, part- ''Michael v. Workman, 5 W. Va.

nership property shall be treated as 391, 393.

his; and under this statute it was 5 Crawford u Collins, 45 Barb. 269 ;

held that cotton bought by a person 30 How! Pr. 398 ; Messner v. Lewis,

in his own name was liable to exe- 30 Tex. 331, where the partners sued

cution on a judgment rendered be- in their individual names, joining

fore the statute took effect, although causes of action payable to them

owned by an undisclosed partner under different names as constitut-

who claims it. Gumbel v.Koon, 59 ing different houses.

Miss. 364. 6 §453; Mick v. Howard, 1 Ind.

iGill u Ferris, 83 Mo. 156; Shine 350; Dudley v. Littlefleld, 31 Me.

V. Central Sav. Bk. 70 id. 534; Mel- 418. And see Cooper v. Bailey, 53 id.

linger v. Parsons, 51 Iowa, 58 ; Bil- 280.
lingsley v. Dawson, 37 id. 310.

301

§ 195. NATURE AND FORMATION,

McConeghy, the indorsee sued McConeghy, who in defense
claimed to have indorsed for the maker's accommodation,
and claimed that the plaintiff had no title because the
payees had not indorsed. It was held that the payees are
presumed prima facie to constitute a partnership, and, from
identity of name, that John J. Kirk was one of the part-
ners; and it was further held that the indorsement of nego-
tiable paper by one partner on partnership account would
bind the firm.' A note payable to a firm and indorsed over
in the name of one partner has been held to convey the
equitable tij;le, the other partner not being the objector.'' A
note made payable to one partner, in the course of business,
cannot be indorsed over by the other partner in the payee's
name;' but a note payable to A. may be indorsed over in
the name of A. & Co.; just as if A. and B. convey A,'s
property, it is a good conveyance by A.''

§ 195. One firm with several names. — As any symbol
that the partners may use to designate themselves collect-
ively will represent them, a firm may have several names if
its members choose.* Hence, judgment may be had in one
action on a note signed A. Hunt & Bro. and on another
signed Hunt & Bro., where both names represent the same
individuals;* or defendants may be described as partners
under a certain name, and their promise by another name
' may be shown and recovered upon, just as a person assum-
ing an alias may be made liable.'

1 McConeghy v. Kirk, 63 Pa. St. ferainard, 35 id. 476; Wartelle v.

200, But contra as to the.proposi- Hudson, 8 La. Ann. 486.

tion that the indorsement of one in- 3 McCauley v. Gordon, 64 Ga. 331 ;

dividual name will convey title to a 37 Am. Rep. 68.

note payable to the firm, Mclntire < Finch v. De Forest, 16 Conn. 445.

V. McLaurin, 3 Humph. 71 ; 36 Am. 5 Michael v. Workman, 5 W. Va.

Dec. 300 ; Moore v. Ayres, 5 Sni. & 391 ; MoflEat v. McKissick, 8 Baxter,

Mar. 310; Estabrook v. Smith, 6 517.

Gray, 570, virhere one of the payee 6 Hunt v. Semonin, 79 Ky. 370.

firm in his individual name indorsed 'Miner v. Downer, 20 Vt. 461;

the note to the other. Brown v. Jewett, 18 N. H. 230,

2 Planters', etc. Bank v. Willis, 5 where they were known as "Farm-
Ala. 770; Ala. Coal Mining Co. v. ers & Mechanics,'' and as "Farmers

303

THE FIRM NAME. § 19G.

Especially is this common where there are two places of
business in different cities.^ Thus, where partners car-
ried on a business as J. & B. in Dakota, and as J., B. & Co.
in Colorado, the fact of two names is of no importance where
the same individuals, neither more nor less, own each busi-
ness, and the assets of both nominal firms in the hands of
an assignee in insolvency are equally applicable to creditors
of each house. ^ If the number of partners vary, in each,
that is, if either have a partner not common to the other,
they are of course separate firms.'

§ 196. Two firms with same name. — Two independent
firms, composed in part of the same partners, may adopt the
same name, and in such case the question, which is bound
by a contract made in the firm name by a partner common
to both, is one of identity, or to determine to which credit
was intended to be given, and is the same question that
arises where a firm is in the name of an individual and a
note is made by him. If the controversy grows out of a
purchase of goods in the firm name, apparently suitable to
one firm and not to the other, or for a loan of money to pay
the debts of one firm, the limitation on the partner's author-
ity arising from the scope of the business, which every one
must take notice of, determines.*

& Mechanics' Co.," and as "Farmers of Rochester v. Monteath, 1 Den. 403 ;
& Mechanics' Store." Where Taylor 43 Am. Dec. 681; In re Williams, 3
& Cassily had a business house in Woods, C. C. 498 ; Campbell v. Colo-
New Orleans, where Taylor resided, rado Coal & Iron Co. 9 Colorado, 60 ;
and one in Cincinnati, where Cassily Buckner v. Calcote, 28 Miss. 433,
lived, dealing with each other as in- 585-9 ; Anderson v. Norton, 15 Lea,
dependent firms, a bill drawn in Cin- 14; Messner v. Lewis, 30 Tex. 331;
cinuati on " Taylor & Cassily, New Sneed v. Kelly, 3 Dana, 538.
Orleans," is subject to damages on 2 Campbell t>. Colorado Coal & Iron
protest as being drawn on persons Co. supra; S. P. In Matter of Vet-
without the state. West & Co. v. terlein, 5 Ben. C. C. 311 ; l7i re WilK
Valley Bank, 6 Oh. St. 168. lams, 3 Woods, C. 0. 493. See
1 In Matter of Vetterlein, 5 Ben, Buckner v. Calcote, 28 Miss. 433,
C. C. 311 ; Sparhawk v. Drexel, 13 585-9.

Bankr. Reg. 450 ; Lathrop v. Snell, 6 3 Harrison v. McCormick, 69 CaL

Fla. 750; Ballin v. Ferst, 55 Ga. 546; 616.

Wright V. Hooker, 10 N. Y. 51 ; Bank * Elkin v. Green, 13 Bush, 618.

203

§ 196. NATURE AND FORMATION.

Where a note is made by the Avery Factory Co. by C, its
agent, and there was a corporation and also a partnership
of that name, of both of which C. was agent, evidence that
the corporation had ceased business and the partnership had
not is competent to identify the latter as the maker of the
note.^

In Hastings Nat'l Bank v. Hibbard, 48 Mich. 452, three partners
operated a mill under the firm style of H. & G. ; they had another
mill, and as to it took in another partner; but both firms had the
same name of H. & Gr., and used the same letter-heads with the
names of all four partners printed thereon. One of the original
partners made a note in the firm name, and procured the plaintiff
a banking corporation, to discount it. The jury having found that
the loan was upon the credit of the original firm, the plaint-
iff cannot elect which firm to sue, and cannot hold the new partner
liable. It was said (p. 458) that had the bank officers supposed
there was but one firm, all the partners would have been bound."

So in Fosdick v. Van Horn, 40 Oh. St., 459, there were two firms
of the same name in the same community, one of which contained
a dormant partner, who was not a member of the other. A note
was given in the common firm name, and it was held that this
must be presumed to be the note of the firm not containing the
dormant partner; and to charge the other firm, proof wasTiecessary

1 Jones V. Parker, 30 N. H. 31. the former firm, Steele was held

Lord Kenyon had decided in the last upon it. It is difficult to agree with

century in Baker v. Charlton, Peake, this case, however, for the itidorse-

80, that where several partnerships ment of the debt of the grocer house

had the same name, a partner in one was notice to the plaintiff that only

could not show that a bill in the the partners in that house were

firm name was drawn on account of liable, and Steele was not liable by

one of the other firms in wiiich he holding out because his membership

was not a partner. This is of course in either house was unknown. Had

not now the law. In Swan v. Steele, plaintiff known that the bill be-

,1 East, 210; 3 Smith, 199, Wood & longed to the cotton house and

Payne had two kinds of business, known it was not the same firm as

cotton and groceries, Steele being a the grocer house, the known misap-

dormant partner in the former only, propriation should have prevented

A biU payable to the cotton firm was his recovery upon it.

indorsed over by Wood & Payne, 2 gee, also, Mechanics' & Farmers'

without Steele's knowledge, to pay Bank v. Dakin, 24 Wend. 411 ; and

a debt of the grocer firm, yet, be- Be Munn, 3 Biss. 442.
cause the indorsement represented

304

THE FIRM NAME. _ § 198.

either that credit was given to it, which may be shown by con-
temporaneous declarations of the ostensible partners or by circum-
stances, or that the proceeds of the note inured to it, or the avowed
purpose for which the money is needed will determine."

If the firms have different names, a note in the name of one can-
not generally bind the other, for though the partner who made
the note could have acted in the capacity of partner of either, yet
the note shows in which capacity he acted.'

§ 197. Form of signing.— As to the form of the signature of
the firm's name, a note I promise, signed A., for A., B., C. & Co.,
will bind the firm.' So of a contract by W., Superintendent of
Keets Mining Co., parties of the first part, signed W., Supt. Keets
Min. Co.* So I promise, signed with the firm's name, A., B. & Co.*
So a promise by the company, signed A. B., treasurer, is the com-
pany's note.'

•§198. Illegal names. — In Massachusetts there is a statute
forbidding the use of the name of a former partner, without his
written consent, or that of his representatives if deceased.'

In New York and Louisiana there is a statute forbidding the use
in the firm style of the name of a person as partner who is not
one, or the use of " & Co." unless an actual partner is represented
by it.' This does not interfere, prohibit or prevent the use of fan-
ciful names, such as Eureka Co. or Alderney Manufacturing Co.°
And being highly penal will not be extended to cover a case where
" & Co." represented an actual person, though under disability, as
where it represents the wife of the named partner;'" and for the
same reason will not be extended to forfeit property rights, as where

1 Elkin V. Green, 13 Bush, 613. 291 ; Morse v. Hall, 109 id. 409;

2 Miner u Downer, 19 Vt. 14, See Sohier u Johnson, 111 id. 338.

§ 107. The consequences of an inten- 8 in France, Code de Commerce, 31,

tional and deceptive similarity of the name must contain no other

names have been considered. §108. names than those of actual partners;

3 Gallway v. Mathew, 10 East, 264; and so in Germany, except that a
S. 0. as Galway v. Matthew, 1 Camp, name may be retained after changes
403; Staats v. Hewlett, 4 Den. 559; in tiie firm.

Caldwell v. Sithens, 5 Blackf . 99. 9 Gay v. Seibold, 97 N; Yr 473, 476 ;

■• Pearson v. Post, 3 Dakota, 320. 49 Am. Rep. 533 ; Lauf erty ■ v.

5 Doty V. Bates, 11 Johns. 544. Wheeler, 11 Daly, 194.

6 Walker v. Wait, 50 Vt. 668. m Zimmerman v. Erhard, 83 N, T.

7 This statute will be found con- 74.
strued in Rogers v. Taintor, 97 Mass.

205

§ 198. NATURE AND FORMATION.

property is ^shipped by a person in the name of a dissolved firm, he
can recover against the carrier for negligence; ' nor to transactions
isolated from the general business of the firm, as a note to the firm
not in the ordinary course of business; " or a leasing of part of the
firm's premises;' and one who continues business in the old name
is not liable for fraud, if no fraud was intended.'

The act was held to apply to protect those giving credit to the
firm, and not those obtaining credit from it, and therefore to be no
defense to a bond to the firm reciting the names of the partners
and giving the firm name with " & Co." ' But it had also been held,
where surviving partners continued business in the old name, al-
though the deceased had directed its continuance, they could not
recoyer for goods sold."

A person who does business in another state, in a name composed
of his own with " & Co.," and employs an agent to canvass for him
in New York, cannot be defeated in an action against his agent on
this ground, where the contract .was made in the other state.'

An act authorizing the continued use of partnership names, on
filing a certificate and advertising the change, does not enlarge or
create rights of property; and therefore, where two of three former
partners put the old name on a trade-mark, this is a materially
false statement and they have no standing in equity.'

POWER OF A PARTNER IN RELATION TO THE NAME,

What has hitherto been said has related solely to the adop-
tion and use of the name by all the partners. In order to
treat the whole subject together, the powers of an individual
partner in relation to the name will be now considered, al-
though it is somewhat anticipating the subject of imphed
powers.

1 Wood V. Erie R. R. Co. 73 N. Y. « Lane v. Arnold, 13 Abb. New
196; 28 Am. Rep. 135 (afi'g, 9 Hun, Cas. 73.

648). ^ 7 Stoddart v. Key, 63 How. Pr. 137 ;

2 Pollard V. Brady, 48 N. Y. Supe- Succession of Bofenschen, 39 La.
rior Ct. 476. ^ Ann. 711.

3 Sparrow v. Kohn, 109 Pa. St. 359. 8 Hazard v. Caswell, 93 N. Y. 359
< Thompson v. Gray, 11 Dalyi 183. (rev. 14 J. & Sp. 559). For the right
5 Gay V. Seibold, 97 N. Y. 473 ; 49 to use the name after death or other

Am. Rep. 533 ; Kent v. Mojonier, 36 dissolution, see Good WilL
La. Ann. 359.'

306

THE FIRM NAME. § 199.

§ 199. Cannot Mnd the firm by wrong name. — The general
principle is that a partner cannot bind the firm in a name
other than its adopted style.' The firm is not to be charged
by having contracts in all sorts of names unloaded upon it.
The risk is sufficiently great when a partner is enabled to
charge the firm in the adopted name without increasing the
hazard; and an act even within the scope of the business is
not necessarily binding on the firm, unless its name is used;
and if any other name is used without specific authority to
do the act in question, there must be proof that a partner-
ship act was understood by the party crediting the firm, and
with such proof there must be decisive evidence that the
firm got the benefit of the contract, in order to hold it for
the consideration.

The doctrine that a bill on the firm can be accepted by one part-
ner in his own name stands on the ground that the word " ac-
cepted" was at common law sufficient without signature, the
addition of the partner's name merely authenticating the accept-
ance; and even this doctrine is not universal.'

1 Coote V. Bank of TJ. S. 3 Cranch, of covenant for a partner to sign A.
C. C. 95; Kirby v. Hewitt, 26 Barb. & Co., or A. for self and partners, be-
607; Ostrom v. Jacobs, 9 Met. 454; cause it cannot be known who are
Norton v. Thatcher, 8 Neb. 186 ; the & Co. from such signatures, and
Crouch V. Bowman, 3 Humph. 209; the other partners can have no in-
Markham v. Hazen, 48 Ga. 570 ; Kirk junction or dissolution for such
V. Blurton, 9 M. & W. 284 ; 12 L. J. cause. In Kirk v. Blurton, 9 M. & W.
Ex. 117 ; Gordon v. Bankstead, 37 111. 284 ; 13 L. J. Ex. 117, where the firm
147 ; Tilford v. Ramsey, 37 Mo. 563, name was John Blurton, a bill signed
567; Palmer v. Stephens, 1 Den. 471 ; John Blurton & Co. was held not to
Moffat V. McKissick, 8 Baxter, 517 ; bind the firm. In Royal Canadian
Royal Canadian Bank-u Wilson, 24 Bank v. Wilson, 24 Up. Can. C. P.
Up. Can. C. P. 362. And see MoLin- 362, a draft drawn on Wilson, Moul
den V. Wenthworth, 51 Wis. 170, & Co. and accepted in that name by
where, however, the payee knew of one partner, when the firm name was
tlie want of authority; Heenan v. J. S. Wilson & Co., and the above
Nash, 8 Minn. 407. name was not adopted until two

2 See § 441. In Marshall v. Colman, months later, was held not to bind
2 Jao. & W. 266, 367-8, Lord Eldon the . firm ; the partner had signed
said that if the agreed firm name for his private purposes.

was A., B., C. & D., it was a breach

207

§ 200. NATURE AND FORMATION.

It may be stated, as a general principle, that a firm is not
liable upon mercantile paper, unless it purports to bind the
firm, either by the use of the individual names or the firm
name.^ But a bill on the firm in the wrong name and ac-
cepted in the right name is binding ; ^ and a bill drawn by a
firm and issued by its successor in business, under a changed
name, after the death of one partner, binds the new firm.'

A receipt by a partner in his own name in relation to the
joint business binds the firm.^

§ 200. Individual names instead of firm name. — We have
elsewhere seen that a note signed by each partner, if made
for a partnership purpose, binds the firm.' So a single part-
ner who, instead of signing the name of the firm which
represents all the members, signs the individual names
represented, binds the firm the same as if he had used the
representative name. This is true in case of conveyances,
and is true in case of executory contracts creating a lia-
bility, provided the firm received the benefit of the consider-
ation or if the firm has no name. Further than this the
cases do not yet seem to go; and it must be remembered that
he binds them jointly and not severally, for no partner is
the several agent of each member.^

1 See §§ 436-454. Gaflf, 44 III. 510, a delivery and bill of

2 Lloyd V. Ashby, 2 B. & Ad. 23 ; sale to one partner of a steamboat
Carney v. Hotchkiss, 48 Mich. 276. contracted to be bought by the firm.

3 Usher v. Dauncey, 4 Camp. 97. 6 g 453,

* Willet V. Chambers, Cowp. 814; SQ-alway v. Matthew, 1 Camp.

Brown v. Lawrence, 5 Conn. 397, 40a : Norton v. Seymour, 3 C. B. 792 ;

where one partner receipted in his Richardson v. Huggins, 28 N. H. 106 ;

own name for notes to be collected Patch v. Wheatland, 8 Allen, 102, a

and tlie proceeds credited on the mortgage of a ship; Holden v.

bailor's debt to the firm ; Tomlin v. Bloxum, 35 Mios. 381, a note for a

Lawrence, 3 Moo. & P. 555, a draft by purchase of goods for the firm ;

a partner in his own name on a Crouch v. Bowman, 3 Humph. 209,

debtor of the firm, accepted by the a note for a purchase, holding that

debtor, firm cannot sue until after the goods must be proved to have

the draft has been dishonored by the gone to the firm's use. McGregor v.

debtor; Biselv. Hobbs, 6 Blackf. 479, Cleveland, 5 Wend. 475, here notes

a receipt for a quantity of corn is signed by one partner in the name of

evidence of delivery ; Byington v. F. & R. Cleyeland had been ratified

208

THE FIRM NAME. § 201.

In Norton v. Seymour, 3 0. B. 792,' Thomas Seymour and
Sarah Ayres were in partnership as Seymour & Ayres, and Seymour
signed a note in the individual names of the partners, and it was
held good, Wilde, C. J., saying: " The note was signed in the names
of Sej'mour & Ayres with the addition of their respective Christian
names;" and Maule, J., saying: " I should hesitate to say that one
of two partners could not bind the other by signing the true names
of both instead of the fictitious name. That, however, is not the
question here." In this case., also, the firm seem to have received
the consideration of the note.

§201. If no name has been adopted. — If no name has
been adopted by agreement or usage it is not necessary that
a partner, in order to perform a partnership act, should use
the individual names of all the partners, but any name may
be used by him by which an intention to bind the firm ap-
pears. Hence, if there is no adopted firm, the partner con-
tracting or purchasing, giving a note signed in the name of
himself & Co., sufficiently expresses that it is given for the
firm; ^ or may use his own name alone.' As where a partner
signed a written contract for a purchase of goods for thp
firm in his own name, the firm having no name, the seller
may, by oral evidence, show that he intended to give credit
to the firm; * or adopt a. fictitious name, as where the acting
partner gave a note signed Atlantic Furniture Co., the co-

by the other, and the note in question i?e Warren, 2 Ware, 322 ; Ee Thomas,

was signed "Fredericli, Cleveland 17 Bankr. Eeg. 54; 8 Biss. 139.

and Eufus Cleveland," and while it is. c. 16 L. J. C. P. 100; 11 Jur.

does not appear that the firm re- 312 (1847).

ceiVed the consideration, it also does ^ Austin v. Williams, 2 Oh. 61 ;

not appear that they had adopted Aspinwall v. Williams, 1 id, 84;

any firm name. Kitner v. Whitlock, K^insnian v. Castleman, 1 Mon. (Ky.)

88 111. 513, on notes; Maiden u. Web- 210; Drake v. Elwyn, 1 Caines, 184;

Bter, 30 Ind. 317 ; Nelson v. Neely, 63 Brown v. Pickard (Utah), 9 Pac. R.

Ind. 194 ; Iddings v. Pierson, 100 Ind. 573.

418; Orozier v. Kirker, 4 'Tex. 252; sSage v. Sherman, 2 N. Y. 417.

51 Am. Dec. 724; Getchellu Foster, ^Qetchell v. Foster, 106 Mass. 43.

106 Mass. 42; Austin v. Williams, 2 It must not be forgotten that if

Oh. 61 (dictum); Ex parte Buckley, there is a firm name a partner can-

14 M. & W. 469; 1 Ph. 562; s. c. as not cast his own loans made in his

Ex parte Clarke, De Qex„ 153 ; Ex own name upon the firm by declar-

parte Stone, li. R. 8 Ch. App. 914; ing.they are for the firm. Uhler «.
Vol. 1 — 14 209

§ 201.

NATURE AND FORMATION.

partnership, though not having concurred in the name, are
bound by the note.^ Or if goods for the firm are sold and
charged and invoiced to one partner & Co., it is a partner-
ship debt, though no note was given. ^

But if the partners have a name, no such liberty can be
taken without an assent or habit; hence, if a firm has
adopted the name of John Blurton, one of the partners, a
bill or indorsement by the other partner in the name of
John Blurton & Co. is not binding on the firm in the hands
of an indorsee.' Hence, a note or obligation in the name
of one partner is his individual debt.^

Browning, 28 N. J. L. 79 ; t)ryer v.
, Sander, 48 Mo. 400 ; nor bind the
firm on negotiable paper in his own
name, nor upon a chattel mortgage,
Clark V. Houghton, 13 Gray, 38;
Seekel v. Fletcher, 53 Iowa, 330, a
sale to two as partners and purchase
money note signed by one, but in-
tended and accepted as binding both.
In Drake v. Elwyn, 1 Caiues, 184,
the persons Elwyn and P. Whittaker
and S. Whittaker were sued upon a
note signed Elwyn & Co. ; their busi-
ness was sometimes called Whitta-
ker's Store, sometimes El wyn's Store
and sometimes Elwyu's & Whitta-
ker's Stoi-e. It was held that, as the
signature imported a partnership,
and it ,being proved that the defend-
ants were partners, the doubt being
as to the name, it is to be presumed
that Elwyn &Co. was the name of the
firm, so as to cast on the defendants
the burden of proving what it was if
a different name existed. In Bar-
croft V. Haworth, 89 Iowa, 463, ,it
was said that if it was intended to
bind the firm, any signature would
suflSce, and the firm name need not
be used ; and therefore, where two
partners signed and a third assented,
a fourth partner may be shown to be

bound by proof of intention to bind
the firm and credit given on the faith
of this intention. But in this case it
was clear that there was no firm
name, and I submit that the case
can only be sustained for that reason
or in case the firm got the benefit of
the note.

1 Holland, v. Long, 57 Ga. 86, 40.

2 Crary V.Williams, 3 Oh. 65. And
see Baring v. Crafts, 9 Met. 380.

3 Kirk V. Blurton, 9 M. & W. 284;
13 L. J. Ex. 117. Iti this case, Drake
V. Elwyn, 1 Caines, 184, supra, was
cited in argument, and Baron Alder-
son said that doubt was not intended
to be thrown upon that decision.

<In Haskell v. Champion, 30 Mo.
136, where B. F. C. Champion, a
member of Champion & Co., signed
a note in his own name, B. F. C.
Champion, and after procuring in-
dorsers on it added "& Co." to his
signature, the indorsers were held to
be release,d. It was said on page 139
that had the note been for a debt
due by_ Champion & Co. it does not
follow that they would not have
been liable, for a partner can no
more, by misnaming his firm, obtain
an advantage than individuals. The
only proper explanation of this dio-

210

THE FIRM NAME. § 202,

§ 202. immaterial deviation from true name by as-
sent.— The doctrine is further hmited in that if a name
. is used varying from the true designation in so slight a way
that the deviation appears casual rather than intentional, it
may be left to the jury to say whether there was any sub-
stantial difference.

The leading case upon this is Faith v. Richmond, 11 A. & E.
339; 3 P._& D. 187 (1840), where three partners, Richmond, Bar-
boui and Hannay, carried on business under the name of " The New-
castle & Sunderland Wall's End Coal Co.," and Richmond signed
a note " For the Newcastle Coal Co., William Richmond, Man-
ager." Lord Denman left it to the jury to say whether or not the
style used was one which, -though slightly varying from that of
the firm, was essentially the same, and a verdict for the defendant
was upheld, there being no authority to make this specific note or
to use such name. It is possible that a verdict for the plaintiff
would have been set aside, for in Kirk v. Blurton, 9 M. & W. 284;
12 L. J. Ex. 117, where Blurton and Habershon were partners
under the name of John Blurton, and Habershon drew a bill in
the.name of John Blurton & Co., payable to their own order, and
indorsed it John Blurton & Co. — probably for his own use — the
bill and indorsement were held not binding, Rolfe, B., saying the
implied authority of a partner is to bind in the name of the part-
nership only, and it is better to adhere to this rule and not to
measure deviations. And ALDEKSOiir, B., said: "In those cases
where the question has been left to the jury, it has been whether
there was substantially any difference between the signature and
the name of the partnership. For instance, if the signature were
Coal & Co. and the true designation of the partnership were Cole
& Co., it would no doubt be for the jury to say whether it was in
substance the same." Yet Martin-, B., in 5 H. & N., 517, thinks that
it should have been left to the jury to say whether John Blurton
and John Blurton & Co. are not substantially the same. So where
a firm's name is Charles G. Ramsey & Co. and a partner signed a
note Chas. G. Ramsey & Co., it will be left to the jury to say
whether there is any substantial difference between the name and
signature.' Where the name of a firm is John Winship, firm
turn is that the firm would be liable ' Tilford v. Ramsey, 37 Mo. 568,
upon the original consideration and 567 ; Kinsman v. Dallam, 5 Mon.
not upon the paper. See § 440. (Ky.) 382. And see Mifflin v. Smith,

211

§ 204. NATURE AND FORMATION.

paper for a loan signed in the name of John Winship, Jr., was
held binding; ' and where a firm's name was Elias Malone, and the
managing partner signed a note for a loan, " Elias Malone & Co.,
Still House," to distinguish it from his individual paper, the devi-
ation was regarded as immaterial, but the firm got the benefit.'

§203. Other name by assent. — If there is a habit or
assent of the firm or of the managing partner shown to use
another than the agreed name, either generally or for par-
ticular purposes, such use of the name by one partner binds
the firm.'

§ 204. Particular authority executed in wrong name. —
If a partner is authorized by his firm to make a particular
note or bill, and does so in a wrong name or in his own
name, a person taking the paper on the credit of the firm is
entitled to treat the transaction as by the firm in such name.

In Reimsdyk v. Kane, 1 Gall. 630, a partner was authorized to
draw on a particular house to take up money, and did so, but signed
his own name, directing the bill to be charged to account of the
firm, and it was held that equity would enforce it against all in
favor of a payee who hg,d trusted the joint credit, and the bill
would be deemed guarantied as to acceptance and payment by the
firm.

17 S. & R. 165, where the agreed vision 173, a name always used be-
name was Nathan Smith, and the fore the world, was in giving notes
contract was signed N. Smith, but always signed merely " Div. 173."
the business was done in the latter Mifflin v. Smith, 17 S. & R. 165,
name. where the agreed name of a firm,

1 Winship v. Bank of U. S. 5 Pet. consisting of -an ostensible and a
539. No notice was taken of this dormant partner, was Nathan
point in the case. Smith, but the business was carried

sMofifatu.McKissick, 8 Baxter, 517. on in the name of N. Smith. Pal-

3 Williamson v. Johnson, 1 B. & mer v. Stephens, 1 Den. 471, where

C. 146; 3D. & R., 381 (explained as a clerk signed a note G. Stephens,
resting upon this ground in Faith v. where the firm name was G. Steph-
Richmond, 11 A. & E. 339 ; 3 P. & ens & Sons ; this was said to be valid

D. 187), where the managing part- if all the members had assented to
ner of Habgood & Co. was in the the use of such name, or it may be
habit of indorsing in the name of if the managing partner assented,
Habgood & Fowler, a former firm, otherwise not. Folk v. Wilson, 31
Mellendy v. New Engl. Prot. Union, Md. 538, where firm's notes in the
86 Vt. 31, where the name of the name of one partner had been recog-
New England Protective Union, Di- nized.

212

THE FIEM NAME. § 205.

So in Farmers' Bank v. Bayless, 41 Mo. 274, 287, it was said by
Holmes, J., that if the firm, authorized a note it might be its note
by one name as well as by another, and was a loan to the firm, but
the burden of proof of this was on the plaintiff.

So in Morse v. Richmond, 97 111. 303 (aff. 6 111. App. 166),
where a partner holding the title to real estate was authorized to
borrow, and signed his own name as " trustee."

§ <i05. Credit to firm under a wrong name.— If a wrong
name was used in the exercise of a proper power, and the firm
received the benefit of the act, and the other party gave credit to
the firm, believing himself to be dealing with it, the partners are
liable on the original consideration.

In Bacon v.^ Hatchings, 5 Bush, 595, D. & D. dissolved and
shortly afterwards formed with H. and W. a new firm of H., D. & Co.,
and in order to raise money a bill was draWn without D.'s knowledge
in the name of D. & D., indorsed by-H., and the new firm got the
proceeds and the transaction was entered on its books. The new
firm was held liable on the draft, on the ground that in the exercise
of the power to make bills to carry on the business, whether the
firm style or some other style is used, does not change the rights
of creditors or responsibility of the partners.'

But this principle will not apply where the promise is that
of the individual and does not purport to be a partnership
.act, no Arm name of any kind being used;^ else he might
cast upon the firm a loan made on his own note by declaring
it to be for the firm.' Nor if the note is under seal.* And if

iThis case should have been de- 2 §§430,447. Goldie v. Maxwell, 1

cided on the ground that the firm Up. Can. Q. B. 484, a note in individ-

was liable on the original considera- ualname for partnership purposes;

tion and not on the paper, a distinc- s. P. Be Herrick, 13 Bankr. Reg. 312 ;

tion which the court recognized in Strauss v. Waldo, 35 Ga. 641. See

Macklin v. Crutcher, 6 Bush, 401, Butterfleld v. Hemsley, 13 Gray,

Barcroft v. Ha worth, 29 Iowa, 463; 326.

Farmers' Bk, v. Bayliss, 41 Mo. 374, 3 Uhler v. Browning, 28 N. J. L.

287, given more fully elsewhere in 79.

this chapter, may also be regarded as ^ § 438 ; Harris v. Miller, Meigs

illustrations of this rule, as may also (Tenn.), 158; 33 Am. Dec. 138; Will-

the cases under § 451. Gage v. Rol- iams v. Gillies, 75 N. Y. 197 (rev. 13

lins, 10 Met. 348, 354; Weaver «. Tap- Hun, 433); Patterson v. Brewster, 4

scott, 9 Leigh (Va.), 434. And see Edw. Ch. 353, 855 ; U. S. v. Astley, 3

Mineru. Downer, 19Vt, 14;30id.461. Wash. C. C. 508.

213

§ 206. NATURE AND FORMATION.

the articles provided that A., of A. & Co., shall furnish all
the funds and shall provide them by his individual note, on
which he alone shall be liable, he alone is liable on the note
signed by him, though he declare that it bind? the firm.'

So where a partner orders goods for the firm in the name of S. &
Co., instead of the firm name, H. & S., this is only evidence tending
to show that no contract was made with H.' & S.'

If there had been two different firms a note in the name of one
cannot be sued on as that of the other.'

§ 206. Where the partners are plaintiffs. — A promise
may be made to one partner with the intent that the firm
shall be beneficiary of the contract. In these cases all the
partners may sue upon it; and so if one partner misappro-
priates the joint property, or makes a contract in regard to
it, all the partners may sue.*

1 Dryer v. Sander, 48 Mo. 400. s Miner v. Downer, 19 Vt. 14; 20 id.

* Hancock v. Hintrager, 60 Iowa, 461, and § 196.
874. *See under Remedies.

214

PART II.

CONDTJCT OF THE BUSINESS.

CHAPTER I.

ARTICLES OF PARTNERSHIP.

*

§ 207. The contract between the partners is the guide to
their powers, rights, duties, and, except as modified by the
apparent scope of the business, of their liabihtie^. Hence
the importance' of carefully anticipating and providing
against possibilities of dispute. ' This contract is never
deemed to contain all the rules for guiding conduct on the
principle of expressio unius est exclusio alterius, but to
be an enumeration of those as to which the law is silent or
as to which it is desired to alter usual legal rules.

§ 208. Statute of frauds. — A contract of present part-
nership, or for the transfer of a share in one, need not be in
writing under the statute of frauds.^ Yet where it a'ppeared
that the contract could not be performed within a year it
was held void.'' And if the contract in terms is for a part-
nership for more than a year, the statute of frauds was held
to apply.' And so if the contract be to procure the admis- -
sion of a person into a firm, and is not to be performed

1 Be Great Western Tel. Co. 5 Biss. action for an account cannot be de-
363; Smith v. Tarlton, 3 Barb. Ch. feated in the latter state for such
336; Coleman v. Eyre, 45 N. Y. 38. reason. Young v. Pearson, 1 Cal.
Certainly so where the enterprise 448.

may be completed within a year. 2 Jones v. McMichael, 13 Rich. L.
Jordan v. Miller, 75 Va. 443. And 176.

if formed in a state where it must be 3 Mdrris v. Peckham, 51 Conn. 138 ;
written, but is to be executed in a Williams v. Jones, 5 B. & 0. 108. But
state where this is not required, an see McKay v. Rutherford, 13 Jur. 21.

.215

§ 209. CONDUCT OF THE BUSINESS,

within a year, it must be proved by writing;' or for a part-
nership not to begin within a year.^

On an oral contract to sell half of a patent right, and to go into
partnership for more than a year with the buyer, a mere written
assignment of the half of the patent is not a memorandum of the
partnership, nor is it performance.*

§ 209. A verbal contract of partnership for more than a
year, if acted upon, and business conducted under it, is valid.
As where a person leased his hotel to another in writing,
and then really formed a ten- year partnership with him, the
rent to be payable out of the profits, the fact of a partner-
ship between the parties can be shown ^s a defense to an
action at law for the rent.^

Where a partnership to work a mine was formed orally, and two
of the partners entered upon and worked it, a purchase of the prop-
erty, by a third partner was held to inure to their benefit, the
statute of frauds not applying because of performance.*

So where C, on buying a third interest in a stage company, agreed
that S. should have half his interest, part of the consideration being
the extinguishment of a debt due by C. to S., and thereupon all
the partners entered into written articles in which S. & C. were de-
scribed as owners of a third interest, and to share in the profits,
thus recognizing S. as an owner, it was held that all the delivery
possible had been made by C. to S.°

1 Whipple V. Parker, 29 Mich. 369. profits and losses founded on mutual

3 Williams v. Jones, 5 B. & C. 108, promises.

110. For the subject of the statute of 'Morris v. Peckham, 51 Conn,

frauds as applied to real estate, see 128.

§301. In Huntley i>. Huntley, 114 U. <Picou. Cuyas, 47 Cal. 174. See,

S. 894, the query was raised whether also, Baxter v. West, 1 Dr. & Sm.

the sale of a share in a partnership 178 ; Williams v. Williams, L. R. 2

was a contract for the sale of goods, Ch. App. 294; Burdon v. Barkus, 4

wares or merchandise of the value DeG. F. & J. 43 ; Gates v. Fraser, 6

of £10 or upwards. But in Coleman 111. App. 229; South mayd i;. South-

V. Eyre, 45 N. Y. 38, an oral contract mayd, 4 Montana, 100 ; Burn v.

to take a share in the interest of one Strong, 14 Grant's Ch. (Up. Can.)

who was jointly interested with 651.

others in a shipment, and to share ^Burn v. Strong, 14 Grant's Ch.

profits and losses, was held not to be (Up. Can.) 651.

a contract of sale within the statute * Huntley v. Himtley, 114 U. S.

of frauds, but an agreement to share 394.

216

ARTICLES OF PAETNEESHIP. § 211.

§ 210. Oral evidence.^ — We will first consider some gen-
eral rules of construction of the articles and then proceed to
consider the most important of what are termed the usual
clauses. The application of oral evidence to the articles is
like that in case of any other written contract ; all prior ne-
gotiations are merged in the writing, and it cannot be con-
tradicted or varied by oral agreements except to the extent
that it imports a receipt.

Thus, articles by which a sale by an existing firm to an incom-
ing partner of half of their .business and half of a contract of
articles for future deUvery, merges a parol guaranty that the arti-
cles would sell at a stated price.' An agreement in the articles,
that one partner shall pay in. his agreed capital when needed can-
not be shown by parol not to be payable until the other partner's
contribution was all in.' But a recital in the articles that each
has paid in so much of his share of capital is no estoppel and may
be explained or even contradicted, like any other receipt.^

§211. Altered by conduct and construed by practice. —

As any written contract, no matter how stringent, may be
superseded or qualified by subsequent oral contract, so any
part of the partnership articles may be varied or rescinded
by the consent of aU the partners, and such consent may be
shown by a course of conduct or established and uniform
usage.*

But property rights are not to be deemed as affected by
mere intendment, as where the share of a partner dying
may be bought at the last semi-annual valuation and the
partners afterwards take their accounts yearly by agree-
ment, yet on death the share must be reckoned up to what
would have been the last semi-anpual settlement.*

1 Evans v. "Hanson, 43 HI. 234. Pilling, 3 DeG. J. & Sm. 163 ; Hall v.

2 Reiter v. Morton, 96 Pa. St. 339, Sannoner, 44 Ark. 34 ; Boisgerard v. *
241. Wall. Sm. & Mar. Ch. 404; MoGraw

3 Lowe V. Thompson, 86 Ind. 508. v. Pulling, 1 Freem. (Miss.) Ch. 357 ;
♦Const w. Harris, Turn. & R. 496, Thomas v. Lines, 83 N. Ca. 191;

517 ; Coventry v. Barclay, 3 D. J. S. Henry v. Jackson, 37 Vt. 431.
320, on app. f r. 33 Beav. 1 ; England s Lawes v. Lawes. 9 Ch. D. 98.
V. Curling, 8 Beav. 129; Pilling v.

217

§ 212. CONDUCT OF THE BUSINESa

Thus, if the parties agree that no one of them shall draw or ac-
cept a bill of exchange in his own name without the concurrence
of all the others, yet if they afterwards slide into a habit of per-
mitting one of them to draw or accept bills without the concur-
rence of the others, the court will hold that they have varied the
' terms of the original agreement in that respect.' So if the articles
forbid sales on credit, but were violated constantly by one partner
with the concurrence and acquiescence of the others,'' or^ where the
salary of the active partner was fixed at $1,000, and after a great
increase in the business and changes in the firm the salary was
charged on the books at the rate of $5,000, a settlement on this
basis will not be disturbed.^ And where the partners were to
contribute to profits and losses in certain proportions, but the man-
ager had received shares of profits but never had been required to
contribute to losses, the articles are qualified and no longer bind
him in this respect.* Where the articles of partnership between
attorneys excluded the pending business of the partner who took
the other into partnership, but the former allowed the latter to
prepare and argue the old cases and make charge as to them on
the books of the firm, this acquiescence will prevent his claiming
that the fees are not a partnership demand.'

§213. provisions not acted on.-^So a provision in

the articles that has never been acted upon v?ill be regarded
as expunged. Thus, in Jackson v. Sedgwick, 1 Swanst.
460, it was agreed that annual settlements should be had,
and in case of death an allowance to the representatives in
Ueu of profits, since the last annual account, should be
made; but no accounts were taken for several years and
other business was engaged in, to which the agreement could
not be applied with justice, it was regarded as waived.' So

iPer Lord Eldon, Const v. Har- articles provide that the capital or

ris, Turn. & R. 496, 523; Gammon v. property shall belong to'one or some

Huse, 100 111. 234. of the partners exclusively, but the

2 Hall V. Sannoner, 44 Ark. 34 ; subsequent purchases of permanent
Dow V. Moore, 47 N. H. 419. property are credited to such part-

3 Gage V. Parmalee, 87 111. 329. ners on the books, thus making it the
«Geddes v. Wallace, 3 Bligh, 370. property of the firm. See S:§ 56, 69.
* Thrall v. Seward, 37 Vt. 573. 6 And see Simmons v. Leonard, 3

Other examples occur where the Hare, 581.

218

ARTICLES OF PARTNERSHIP. § 214.

in Boyd v. Mynatt, 4 Ala. T9, where the partnership was
unsuccessful because the complainant had failed to furnish
the capital he had agreed to contribute, this principle was
applied, but without prejudice to an action at law for the
breach.'

§213. unanimous assent necessary. — In order to

change the articles, whether by express agreement or usage,
the unanimous concurrence or consent of all is necessary.^

Thus, in Thomas v. Lines, 83 N. Ca. 191, where the will of one
partner left to legatees his interest in his partnership, and it was
claimed that money of the firm in the testator's drawer was not
partnership property, and a tacit understanding was sought to be
introduced that each partner might use funds collected by him for
his personal benefit, to modify the articles, the proof was excluded
as showing a mere disregard of the articles by one or more of the
partners while still in force.

And if a change is proposed, even if a majority have the
power to make it, notice of it and a chance to" be heard
should be given to all the partners, otherwise it will not
bind the minority.'

Where the articles have once been changed, whether ex-
pressly or tacitly, the assignee of a partner, or the repre-
sentatives of a deceased partner, are bound by his assent,
and cannot require the firm to revert to the original pro-
visions.^

§ 314. suggested restriction of above principle. — As

seen by the outside world, the powers of each partner are
determined by the apparent scope of the business as here-
after explained,* an element of which is the usage of the
partners. This makes a distinction possible; a unanimous
assent to a change in the articles is necessary inter se,

1 Contra, see Smith v. Duke of Livingston v. Lynch, 4 Johns. Ch.
Chandos, Barnardistoh, 419 ; H Atk. 573. And see § 434.

458. 3 Const v. Harris, Turn. & R. 496,

2 Const V. Harris, Turn. & R. 496, 524-5.

517 ; England v. Curling, 8 Beav. « Const v. Harris, Turn. & E. 496,
129; Abbot v. Johnson, 32 N. H. 9; 524.

6§ 316.
319

§ 215. CONDUCT OF THE BUSINESS.

whether shown by express agreement or tacit acquiescence
with knowledge; but as to the outside world, who can judge
only by appearances and deal on the faith of them, the gross
negligence of a partner in permitting a usage to grow up
which he should have known and stopped nday render him
hable for contracts outside of the agreed scope of the busi-
ness, though he was ignorant of them; the agreement of
the articles then becomes in the nature of a secret restric-
tion upon apparent powers.^

For example, where R. and L. formed a partnership to sell " fer-
tilizers on consignment alone," which, of course, excluded the
power to purchase, and R. for two years had negligently permitted
L., the managing partner, to purchase fertilizers on the firm's ac-
count for resale, R. was held liable to the seller, the court saying
that holding otherwise would be to reward gross negligence."

§ 215. Ambiguities construed by firm's practice. — In case
of ambiguity in the articles, or want of explicitness, the in-
terpretation of the parties as shown by their subsequent
conduct will be accepted as the true construction and in aid
of the intent.'

As where an annual valuation is required to settle the accounts,
and for many years it is made in' a particular way and acted upon
by all, the mode thus adopted cannot be disputed if the articles are
silent or even if inconsistent with them.*

In Ex parte Barber, L. R. 5 Ch. App. 687, the habit of the part-
ners was to debit bad debts to the profit and loss account of the
current year when they were discovered, regardless of the year in
which they were reckoned as assets; one partner died and his ac-
count was made up on, the basis of the accounts of the year, and
afterwards some of the accounts of that year were discovered to be
uncollectible, but the executors were held entitled to the amount
as first made up without deduction for the subsequently discovered
loss.

In' Moore v. Trieber, 31 Ark. 113, partners had a grocery and
dry goods business. T. was a partner in the dry goods branch

1 See § 333. Beacham v. Eckford,' 3 Sandf. Ch.

2 Ala. Fertilizer Co. v. Reynolds & 116, 130.

Lee, 79 Ala. 497. * Coventry v. Barclay, 3 D. J. S.

» Geddes v. Wallace, 3 Bli. 270, 397 ; 330.

320

ARTICLES OF PARTNERSHIP. § 21C.

only, separate books being kept, and was by the articles to receive
half the cash receipts in her profits and the balance only in out-
standing accounts. A custom of the firm to credit payments, first
to accounts for groceries and the balance only to dry goods, never
having been objected to by T., is presumed acquiesced in by her.'

§216. Continue in force if firm continues after term. —

If a partnership is continued after the expiration of the
time originally contemplated, or is dissolved by the retire-
ment or addition of a partner, the business being continued, '
the continued partnership is deemed to be on the same terms,
as far as applicable, as, before, except that it becomes a
partnership at will, and all the provisions of the original
articles which are consistent with a continuance of the
partnership at will or for a new term, if so agreed, ai"e bind-
ing on the members.^ Thus of provisions for compensating
an active partner, not to be applicable unless profits are real-
ized, the restriction applies to the continued firm.' So the
arbitration clause continues in force after the expiration of
the original term if the business continuea; * and a provision
that on the death of a partner before the expiration of the
term the survivor could take his interest, paying £1,500 to
bis executor,'' or at a valuation,* applies to the continued
partnership; but this cannot be exercised several years after

litis to be remembered that the 10 Fla. 9; Frederick v. Cooper, "3
shares of partners and the right to Iowa, 171, 183; Sangston v. Hack, 53
or liability for interest, shown upon Md. 178; Blasdelli;. Souther, 6 Gray,
the books to be the understanding of 149 ; Mifflin v. Smith, 17 S. & R. 165;
the firm, are as conclusively estab- Bradley v. Chamberlin, 16 Yt. 613.
lished as if in a regular contract. See Gould v. Horner, 13 Barb. 601.
Stewart v. Forbes, 1 Hall & Tw. 461 ; ' Bradley v. Chamberlin, 16 Vt.
1 Macn. &G. 137. 618; Boardman v. Close, 44 Iowa,

2 Cox V. Willoughby, 13 Ch. D. 868; 438.
Clark V. Leach, 83 Beav; 14 (aff'd in ^Gillett v. Thornton, L. R. 19 Eq.
1 DeG. J. & Sm. 409); Austen v. 599, a statute having made this
Boys, 34 Beav. 598 (afC'd in 3 DeG. & clause enforcible.
J. 636); Booth v. Parks, 1 Moll. 5 Cox v. Willoughby, 13 Ch. D. 863,
(Irish) 465 ; Crawshay v. Collins, 15 not following Cookson v. Cookson, 8
Ves. 318; U. S. Bank v. Binney, 5 Sim. 539.

Mason, 176, 185 ; Stephens v. Orman, « Essex v. Essex, 30 Beav, 443.

231

§ 217. CONDUCT OF THE BUSINESS,

the death;' and if partially new articles are drawn up the
original bind pro tanto.^

So, where R. contributed a sum of money which L. agreed to in-
vest in cattle, and sell them at the end of a .year, on a division of
profits, L. guarantying twenty per cent, to R., and R. continued
to advance money for three years, all subsequent dealings will be
referred to the original terms.'

A partnership was formed to dig for gold on one property, one
partner paying all expenses; this was abandoned, and by mutual
consent digging was resumed on another lot. The same terms will
be presumed to govern.^

So if, in a partnership composed of an active and a silent partner,
the active partner continues business after the expiration of the
term with the assets, and without accounting, it is not a dissolu-
tion, and the silent partner will share as under the original agree-
ment.'

§ 21 7. So of a new firm. — The original articles may thus
run through two or three changes of partnership caused by
changes of members.

Thus, a right upon the death of either of three partners to take
the whole business, paying his share as it appeared at the last set-
tlement, is, after one has died and his share has been thus paid off,
applicable as between the two survivors who had continued the
business, upon the death of one of them;' and where F. & S. en-
tered into written articles, then P. sold his interest to B., and the
firm of B. & S. was formed; then S. sold out to C, and B. and C.
became the partners in the concern, the original articles are deemed
to be still in force.' And where the active partners were to receive
an annual compensation, and afterwards an inactive partner sold
out to a third person, who allowed the business to continue with-

1 See Yates v. Finn, 13 Ch. D. 839. as to surviving partners continuing,

2 Austen u Boys, 34 Beav. 598 without settlement, Foster u Hall,
(afE'd in 3 DeG. & J. 636). 4 Humph. (Tenn. ) 346.

3 Bobbins r. Laswell, 37 III. 365. «King «. Chuck, 17 Beav. 335;
* Burn V. Strong, 14 Grant's Ch. Robertson v. Miller, 1 Brock. 466.

(Up. Can.) 651. 'Board man v. Close, 44 Iowa, 438;

» Parsons v. Hay ward, 31 Beav. 199; Sangston v. Hack, 53 Md, 173.
aflPd in 4 DeG. F. & J. 474. Contra,

333

ARTICLES OF PARTNERSHIP. §219.

out interruption, the Compensation naust be allowed as under the
old articles.'

§ 2 1 8. Glauses whichdo not continue. — On the other hand,
a clause requiring a partner who wishes to retire, to notify
the rest a certain time beforehand, is not applicable after
the term has expired, for the partnership is then at will,^

And a penal clause that if either partner did certain things
the other could dissolve and retain the business as if the
former had abandoned it or was expelled was held not to
continue after the original term, because the partner might
justly say that he had agreed to be a partner on those terms
for the agreed time, with the right to take his interest out
thereafter.' ,

§ 219. Rights of third persons in. — Provisions in articles
giving annuities or other rights to the decedent's widow, in
case of his death, or to other persons not parties, can be en-
forced by them, being a trust and not a contract.'*

But strangers, for whose benefit the articles were not made, can-
not enforce provisions only incidentally advantageous to them.
Thus, where the firm agree to pay one partner, when the profits
reach a certain point, $2,000 per annum, of which $1,000 is to be
paid to a third person, until he has received $5,000, here, though
such person may, perhaps, collect his amounts as they fall due, he
cannot have an action against the partners for refusing to go o^n
with the business or for other misconduct by which the amount
out of which he was to be paid was prevented from accruing; ' yet

1 Wilson V. Lineberger, 83 N. Ca. sion of another partner, who objected
534. A firm of two machinists agreed to it, was held to annul it, Blasdell
to pay plaintiff a commission of two v. Souther, 6 Gray, 149.
and one-half per cent, on locomo- ^Featherston'haugh u. Fenwick, 17
tives made and sold by them, for Ves. 298, 307 ; Neilson v. Mossend
five years, in consideration of his Iron Co. L. R. 11 App. Cas. 298. See
soliciting for them, provided, that if Wilson v. Simpson, 89 N. Y. 619 ;
a new partner was admitted who Duffleld v. Br^inerd, 45 Conn. 434.
objected to the agreement being con- ^ Clark v. Leach, 33 Beav. 14 ; afl'd
tinued, it should become null. After in 1, DeG. J. & Sm. 409.
dissolution a verbal continuance of * Page v. Cox, 10 Hare, 163.
the agreement was made with one * Greenwood v. Sheldon, 31 Minn,
partner, and the subsequent admis- 354.

§ 221. CONDUCT OF THE BUSINESS.

a partner who has agreed to pay an annuity out of the profits is
liable in damages if he wilfully refuses to continue the business.'

§ 220. Firm name. — The general rule of law is that when
a firm name has been adopted, a partner cartnot bind the
firm by any other name, except by using the individual
names of each partner. But that if no name has been
adopted, he can use his own name with "& Co." or some
other representative expression. In order that it may
appear beyond conljroversy when a partnership act is in-
tended, it is advisable to adopt a name. It is also advisable
to provide in the articles that no other than the agreed name
shall be used, partly to remind the partners of this rule, and
partly because an express covenant to that effect can be en-
forced by injunction.^

§ 221. Time partnership ibegins. — The date of the begin-
ning of a partnership is a matter of importance, because
the agency of each to act for all, and the right to share
profits, begin then; and upon this matter may depend the
question of whether preliminary purchases, or other acts
were authorized to be made on joint credit or were individ-
ual transactions.' If the time is not specified the date of
the execution of the instrument will govern; and it has been
held that parol evidence of a different intention is not ad-
missible, where the language imports an absolute partner-
ship in presenti.

Thus in Williams v. Jones, 5 B. &C. 108, W., an attorney, agreed
to take J.'s son into partnership for ten- years, in consideration, in
writing, of £250 cash and £100 payable in two years from date.
The date for the beginning of the, partnership was stated. The
action was by W. against J. for the £100, and the plea was non-
assumjjsit, with proof that J.'s son was not admitted to practice
until six months after the date of the contract, and hence the part-
nership was illegal, as being between an attorney and a person not
admitted. The plaintiff offered evidence that the contract was not

1 Mclntyre v. Belcher, 14 C. B. N. ' This is fully considered under lii-
S. 654. choate Partnerships, § 80.

2See§§199, 660.

234

AETICLES OF PARTNERSHIP. § 222.

put in force until J.'s son was admitted; but the exclusion of this
evidence was held correct, because it varied the writing, which was
for a present partnership, and sought to make it conditional upon
J.'s son's admission to practice, and the plaintiff was nonsuited.'

Where the articles provide that the partnership shall be deemed
to have commenced at a preceding date, this is a bargain between
the parties, but not a pledging of credit to third persons, or at most
is a ratification of acts done for the benefit of as well as in the
name of the firm, and does not bind an incoming partner to make
good antecedent abuses of powers by a partner, of which the firm
got no benefit, and by which the other partners inter se are not
bound."

So an agreement that the partnership shall be in existence from
a future day, where the partners begin to act as such immedi-
ately, is, like all other secret stipulations, inoperative as to cred-
itors.'

§ 232. Duration. — The importance of fixing the duration
of the partnership results from the fact that otherwise it is
a partnership at will, dissolvable at the pleasure of any
member, without li9.bility to his copai-tners, however ruin-
ous the consequences to them. But the agreement for, a
fixed term need not be express; it may appear by implicar
tion.

Even if a definite term- is agreed on, the death or bank-
ruptcy of a partner before its completion will terminate the
partnership, unless there is a specific and express provision
covering these contingencies. In deciding upon the advisa-
bility of such provision, it must be remembered that, in
many kinds of business, an immediate dissolution and
winding up may be disastrous both to the living partners

iThe day of delivery and not the May 21, B. used the firm name to
■written date is the day of execution, raise money, which he intended to
Holmes v. Porter, 39 Me. 157, of an apply and did apply for his private
agreement of dissolution. purposes, although the lender did

2 Vera v. Ashby, 10 B. & C. 288. not know this. The lender cannot
In this case, on June 24, O. agreed to hold C. upon the paper,
become a member of the firm of A. 3 See Battley v. Lewis, 1 M. & G.
& B., the partnership to be consid- 155.
ered as beginning from May 18. On
Vol. 1—15 235

§ 224. CONDUCT OF THE BUSINESS.

and to the estate of the deceased, and that the representa-
tives of the estate cannot safely remedy this if they would,
for want of authority to hazard its assets by consenting to
or permitting a continuance. Moreover the surviving part-
ners cannot be compelled to admit the executors to a share
of the management of the business, even though they have
agreed upon its being continued after death, unless they have
also agreed that such representative shall have such right.'

§ 223. Business to be stated. — The business or objects of
the partnership ought of course to be described in the arti-
cles, because its nature and requirements are the measure of
the power of each partner to bind the firm.^

§ 224. Fidelity to the firm; .compensation; competing. —

It is common to insert a clause requiring the observation of
good faith to each other and fidehty to the common inter-
ests. This clause is of no value except as a reminder to the
partners, for, as we have seen, the highest degree of good
faith will be exacted without any stipulation whatever.

As fidelity to the firm requires a partner to give his time
to the business, except when incapacitated, and to perform
all necessary services without compensation,'- the articles
should specify to what extent any of the partners are not
expected to devote themselves to the transaction 9f business,
and what extra compensation as salary or commissions he
may have in addition to his share of the profits; and so if
he is to have any personal advantage in the way of commis-
sions or profits on sales or purchases to or from the firm by,
to or through him.

A reservation of a right in one partner of a professional partner-
ship to carry on any other business, and to absent himself as he
should see fit, was held to give him the right to cease business al-
together and move away, and this was not abandoning the partner-
ship.* Even a positive agreement to give time to the business is
not broken by absence from sickness.'

• § 158. ♦ McIf'en-aTi v. Filbert, 102 Pa. St. 73.

2 §816. . 5 Boast V. Firth, L. R. 4 C. P. 1 ;

' See !? 770. Tlobinson v. Davison, 6 Exch. 569.

S36

ARTICLES OF PARTNERSHIP. g 225.

And for the same reason, if a partner is to be permitted to
have dealings on his own account in any kind of business
which is within the scope of the partnership objects, or to
be a member of a competing firm, this right must be re-
served, for a partner will not be allowed to compete with
the partnership.^ But such privileges, in case of doubt, will
doubtless be construed in favor of the firm.

Thus, in Starr v. Case, 59 Iowa, 491, the articles required from each
partner his entire time excopt time for fulfilling the duties of any
office or agency held individually, and neither partner should ac-
cept or continue in office without the consent of all; this exception
was construed to refer to future as well as existing offices, and the
word " held " was not confined to existing positions.

If a partner holds an office, the emoluments of it belong presum-
ably to him and not to the firm.'' Hence it is desirable, that doubt
may be avoided, to specify whether the salary is to belong to the
fimn or not.

§ 225. Books and accounts. — The duty of each partner to
keep accurate accounts of his own transactions always ready
for inspection has been elsewhere noticed.' And the great
importance of keeping books will be hereafter treated. The
duty of keeping the books at the place of business, accessible
to each party, is implied as matter of law. Nevertheless, it
is advisable to provide against their removal, since it is cer-
tain that a breach of an express covenant to that effect will
he prevented by injunction.*

In order to show the condition of the firm and the account
of each partner with the firm, it is usual to agree that peri-
odical settlements of the accounts be made, showing the as-
sets and liabilities of the firm and the balances in favor of
or against each partner, and an ascertainment and division
of profits. Such accountings, after the acquiescence of all
the partners, are presumptively correct, and can only be at-
tacked on afiflrmative proof of error. But it may conduce
to the welfare of the partners to close this source of objec-
tion, unless availed of within a reasonable time, and for that

i§306. s§313.

2 See §269. *g314

337

§ 227. CONDUCT OF THE BUSINESS:

purpose a clause is often inserted that the periodical state-
ments shall be conclusive upon the partners, unless errors
are found and objected to within a given time. No accounts
are binding upon a partner if his acquiescence, or signature
when signing is required, was obtained by fraud, deception
or concealment.'

§ 226. Capital. — It is of importance to specify what is to
be regarded as capital, and if it be contributed in goods their
value ought to be agreed upon, so that upon dissolution the
amount due each as capital shall not be in dispute, and that
in case profits are to be divided in proportion to capital the
ratio may be obvious. If the capital is to bear interest this
must be stated, for otherwise it will not.^ If the use alone
of property as distinguished from the property is contrib-
uted, this should be made clear. And where the use con-
sists of a leasehold for a term longer than the partnership
term, or consists of a good will or of a patent right or trade
secret, the benefit of which, after the expiration of the part-
nership, is to belong exclusively to the partner who contrib-
uted it, it is particularly important to show this. If one
partner is to have a right to increase his capital, this must be
stated; and if accumulated profits are to be left in as capital,
this must be stated, otherwise they are mere deposits.' If
payments of contributions to capital or other acts are con-
ditions precedent to the existence of the partnership, this
should be stated.*

§ 227. real estate. — It should appear whether real

estate in the name of one partner becomes joint property or

'» §g 959, 961. to be reimbursed to him out of the

2 § 781. crop. Nichol v. Stewart, 36 Ark.

8 §255. 613. If a partner contributes the use

* An agreement in the articles of a of a mill, machinery, etc., the firm

planting partnership that one part- is not bound to leave it in good re-

ner would "advance'' to the firm pair at dissolution. If the articles

mules, implements and supplies, provide that additions are to be paid

was construed to mean free of cost, for by him and repairs by the firm,

but the mules and Implements re- as to what are additions and repairs,

mained his property, and the sup- see Bunnell v. Henderson, 23 N. J.

plies consumed in the use were Eq. 174.

228

ARTICLES OF PARTNERSHIP. § 228.

whether its use only is contributed; and if the former,
whether the partners hold as tenants in common or whether
it is assets; the general' American rule ^ being that the
surplus of partnership real estate, after all debts and co-
partners' claims are satisfied, is no longer personalty, but
descends as real estate. If an out and out conversion into
personalty is intended, so that the surplus shall go to the
personal representatives and not to widow and heirs, this
should be stated.^

§ 228. Division of profits. — The articles ought to state
the proportion in which profit and loss should be divided;
the amount of earnings to be held back, if any; the periods
of computation and divisibn, and, as far as possible, the
method of ascertainment.' We have elsewhere seen that
there is a presumed equality in shares if the articles are
silent; but this presumption is not irresistible and may be
overthrown by construction; hence is a further necessity for
explicit statement.

If the articles are silent as to the period of division, it
does not follow that the profits are, by agreement, to accu-
mulate until the end of the term, but may be divided from
time to time as the partners may decide.- But this is a
matter within the control of the majority, and, to prevent
dispute, especially if the number of partners is even, should
be declared in advance by stipulation.

Where partners in a mill were in the habit of dividing the grain
received, as toll as it was received, this usage is evidence of an
agreement to that effect, and one partner cannot require the other
to let the grain accumulate in order to pay a debt of the firm, or
prevent the other taking possession of his share.' And where
some of the partners claimed that a settlement was to be had but
once a year, it was held that another provision by which such par-
ties could pay out plaintiff's share at a certain amount within six
months showed that a more frequent settlement was intended.''

1 8 397. case that the question was of the

2 Kennedy u Kennedy, 3 Dana, 239.- right to take possession of an article

3 In Carrithers v. Jarrell, 20 Ga. rather than to insist upon a division.
843. But it will be observed of this < Wood v. Beath, 23 Wis. 254, 260.

239

§ 229. CONDUCT OF THE BUSINESS.

In Parnell v. Eobinsou, 58 Ga. 26, a firm for the storage ana
sale of cotton had, for ten or twelve years, a quantity of cotton for
which no owner had appeared. After the death of one partner the
surviving partner sold it. The court required him to account for
a share of the proceeds with the administrator, because the pos-
session had been joint, and the estate would be liable to the true
owner; but, to protect the survivor, the court ordered the adminis-
trator to hold the fund for a reasonable time, viz., twelve months,
and advertise for the owners.

§ 229. meaning of profits. — Profits, pure and simple,

is the advance obtained in sales beyond the cost of purchase,
orthe excess of the value of returns over the value of ad-
vances.'

The meaning of profits as distinguished from capital is illus-
trated in Fletcher v. Hawkins, 2 R. I. 330. There H., a member
of a mining association, whose shares were $300, procured his $300
from F., to whom he agreed to pay one-fourth of the profits. H.
sent out a man in his place on the expedition, the substitute agree-
ing to pay over to H. half his profits. The association was to di-
vide profits over and above capital once a year, but dissolved before
beginning, each man agreeing to work by himself for the member
who sent him. H.'s substitute sent back |300 worth of gold, which
H. receipted for as half the proceeds of their engagement. It was
held that H. was not liable to pay F. part of this, because it is not
profits, not being in excess of capital. The substitute is bound to
account for H.'s capital as well as for profits, and this is an ac-
counting, and H.'s receipt does not estop him. The word profits
in the ordinary sense, legal and mercantile, being the excess over
capital, and was used in that sense in the articles, and though a hard
bargain for the plaintiff, the burden is on him to show that his
contract required a different meaning to be given to the word.

So in Leach v. Leach, 18 Pick. 68, the articles required T. to
furnish $20,000 as capital, and J. to manage the business and keep
the stock at its original value out of the proceeds of sales, the
profits to be equally divided, and on dissolution T. was to re-
ceive back $20,000 in the stock remaining, losses by ba;d debts,
decay of goods and inevitable accidents ' excepted. The proper
construction is not that bad debts are to be deducted out of the

> Sge Doane v. Adams, 15 La. Ann. 350 ; Shea v. Donahue, 15 Lea, 160.

230

ARTICLES OF PARTNERSHIP. § 230.

capital but out of the profits; there would be no profi.ts unless
there is a 'surplus after keeping the capital unimpaired, otherwise
the profits would not be equally divided; and the phrase " losses by
bad debts, etc., excepted " means that if there are no profits and
the capital is reduced, then this provision is to be applied.

Expenses in permanent improvements are really additions
to capital, or, if it be not intended to increase the capital,
should be paid for out of the capital and not out of the
profits.

Thus, inBraun's Appeal, 105 Pa. St. 414, one partner was to re-
ceive a percentage of the "gross income." The partners, in order
to put their establishment, a mill, in running order, made im-
provements beyond ordinary repairs, which increased the capacity
of the mill and added .to its permanent value. It was held that
these expenses were not to be deducted in reckoning profits, but
must be regarded as capital.

So in Squires v. Anderson, 54 Mo. 193, where one partner fur-
nished land to be cultivated, and the necessary money, and the
other the labor, the land remaining the property of the former, he
is to be charged with all permanent improvements paid for with
partnership funds, but not with the increased value of vines due to
their growth during the term which were upon the firm at the
formation of the partnership. This incidental growth was not
intended to be considered.'

In a partnership in a land speculation,' where one partner fur-
nishes all the funds and the other does the work, and profits, de-
ducting expenditures, are to be divided, the profits are the value ot
the land, whether ascertained by resale or by valuation, deducting
cost and incidental expenses.'

§ 330. - — net profits. — The term net profits means, in
effect, the same thing as profits, and the term gross profits

1 We shall elsewhere see that cap- in consideration of plaintiff's going
ital or unsettled balances do not security for him for the original pur-
bear interest, and hence profits are chase of the business. Here it was
not to be reduced on that account, held he could credit himself with his
tig 751, 786. In Dunlap v. Odena, 1 own labor and that of his two hands
Rich. (S. Ca.) Eq. 273, A., owning a before reckoning profits,
business in which -he worked and 2 Proudfoot v. Bush, 7 Grant's Ch.
employed two hands, agreed to pay (Up. Can,) 518.
plaintiff one-third of the net profits

231

§ 230. CONDUCT OF THE BUSINESS.

is a solecism, although it has been used by political econo-
mists as representing the total difference between the values
of advances and returns, in contradistinction to net profits,
as meaning only that part of such amount as can be attrib-
uted solely to capital. Gross returns are returns without
deduction for losses or capital.

The term net profits is illustrated in Welsh v. Canfield, 60 Md.
469. The articles of partnership provided that each partner should
be entitled to a stated proportion of profits, W.'s share being one-
eighth, and should bear losses in the same proportion. Another
article provided that if the net profits in any one year should be so
small that W.'s portion should not amount to $2,51)0, his account
should be credited with enough to make up that. sum. ' Heavy
losses having occurred, W. claimed that Ije was chargeable with
them only to the extent of diminishing his yearly profits down to
$2,500. But the other partners claimed that their obligation to
make up to W. a deficiency in profits was limited to $2,500, and if
after this there still remained a loss, he was responsible for one-
eighth of it. It was held that the latter of the above articles
applied in case the net profits did not divide to W. $2,500 to indem-
nify him for the loss he otherwise would bear under the former ar-
ticle, and that he was entitled to any sum necessary to give him
a net profit of $2,500. Because to credit him with a sum as net
profits, and then charge him with a loss that not only eats it up
but inflicts an absolute loss beyond, is not giving him a net gain,
but only giving the benefit of a certain sum which it would be a
misnomer to call net. That he is to be " credited " instead of paid
makes no difference. The term is appropriate in relation to a cur-
rent business where a credit may be absorbed by a debt'

1 Salaries of partners are part of share shall be $10,000, and not that
the expenses, to be deducted before the whole profits shall be $10,000,
an employee's share of net profits is which would give him but $5,000.
to be computed. Fuller u. Miller, 105 Grant?;. Bryant, 101 Mass. 567; Du-
Mass. 103. So are losses by fire, mont v. Eueppreeht, 38 Ala. 175.
Gill V. Geyer, 16 Oh. St. 399; Me- But if a parmer is to get half the
serve v. Andrews, 106 Mass. 419 ; and crop after all supplies which he had
8se next section. So if one partner furnished were paid," the payment
guaranties to the other $10,000 profit"? is not to be out of the other's share,
the first year, notwithstanding losses but before division, Nichol v. Stew-
to any extent, and no profits were art, 36 Ark. 612.
made, this means that the former's

232

ARTICLES OF PAETNERSHIP. § 232.

§ 231. losses. — There is another very important ob-
servation to be made in this connection. Where one partner
furnishes all the capital, and the other his skill and labor
only, as the capital belongs to the firm, a loss of it falls upon
all the partners and not upon the one furnishing it alone. If
the partner who furnishes labor only is to risk the loss
of that alone, and is not in addition to become indebted for
impairment of capital, it must be so expressed in the arti-
cles.

If, however, the partners are such in profits alone, and the
stock, plant or other property out ,of which earnings are
made remains the property of one partner alone, a loss of
it is not a loss by the firm.' Even in the latter case, if the
course of dealing has shown that the, net profits alone are to
be divided, a loss of stock by fire must be deducted before
estimating profits, whether the other associate be a partner
or an employee.^ But if one partner furnishes the capital,
and not the mere use of property, loss by fire is like a loss
by bad debtsj to be borne by all; ' and insurance of it is part
of the expenses of the business.*

§ 232. Restrictions on ordinary powers.^ If the ordinary
powers of a partner are to be restricted, as the right io
draw checks ot- bills and make notes or accept drafts, this
must be specified in the articles; and even then it does not
bind third persons who have no notice of the restriction.*
And the same is to be said of the not uncommon agreement

1 Whitoomb v. Converse, 119 Mass. ' Where one partner was to. fur-
38, 43; 20 Am. Eep; 311. nlsh all the capital, payable in such

2 Gill V. Geyer, 15 Oh. St. 399. And sums as may be drawn for by the
see Meserve v. Andi-ews, 106 Mass. operating agent, to be used in buying
419. "logs, but neither of the partners nor

s Carlisle v. Tenbrook, 57 Ind. 539 ; the agent were to sign the firm name

Taf t V. Schwamb, 80 111. 289 ; Savery to any note, this clause does not

V. Thurston, 4 111. App. 55 ; Gill v. limit the first, and orders drawn on

Geyer, 15 Oh. St. 899; Meserve v. the partners to pay for logs, signed

Andrews, 106 Mass. 419. P. & B., by W., agent, are rightly

< Livingston v. Blanchard, 130 executed. Gaslin v. Plnhey, 83

Mass. 841. This subject is treated Minn. -36.
more fully under Winding-up, §§
813-819,

233

§ 233. CONDUCT OF THE BUSINESS.

that no partner shall become security for third persons. So
the right to receive payment of debts cannot be limited by
mere ^notice to the debtor not to pay a particular partner,
unless it be so agreed ^setween the partners, even if he be
insolvent.^ Hence, in order to restrict to one partner the
right to collect debts or to wind up, a special agreement is
necessary, and such agreement is enforcible by receiver and
injunction.^

And it may be wise, in order to avoid future dispute, to
settle upon the powers of the majority, or, if the number of
partners is even, to agree as to the exercise of the power of
engaging and discharging employees.

§ 233. Arbitration clause. — An agreement to submit dis-
putes to arbitration is a common provision in articles of
partnership; nevertheless the ordinary rule, that such an
agreement will not be specifically enforced when its effect
is to oust the courts of jurisdiction, applies to partnerships.'
Nor will an action lie for damages for breach of an agree-
ment, to arbitrate, for non constat that the plaintiff would
have succeeded in the arbitration. ^

Hence, to a bill in equity for discovery or an accounting, the
pendency of arbitration proceedings is no defense, for the award
may never be made, as the court canrfot compel tbe arbitrators to
act or to decide.' True, tbe court and the arbitrators may arrive at
different conclusions, but so may two courts.'

Nevertheless where there is an agreement to submit dis-
putes to arbitration, the court may refuse the ruinous course

•See §336. iTattersall v. Groote, 2 B. & P.

2 See Davis ■;;. Amer, 3 Drew, 64. 131; but in Livingston v. Ealli, 5 E.

3 Street v. Eigby, 6 Ves. 615, 618; & B. 133, the action was held to lie.
Tattersall v. Groote, 3 B. & P. 131, 6 Cooke v. Cooke, L. R. 4 Eq. 77,
135; Leev. Page, 7 Jur. N. S. 768; 30 88; Street v. Rigby, 6 Ves. 615, 618;
L. J. N. S. Ch._ 857 ; Pearl v. Harris, Meaher v. Cox, 37 Ala. 301 ; S. 0. Ala.
131 Mass. 390; Page v. Vankirk, 6 Se). Cas. 156; Page v. Vankirk, 6
Phila. 364 ; 1 Brewst. 383. The case Pliila. 864 ; s. c. 1 Brewst. 383. See
of Halfhide v. Penning, 2 Bro. C. C. De Pusey v. Dupont, -1 Del. Ch. 83.
836, has been overruled upon this But see Russell v. Russell, 14 Oh. D.
point in numerous cases not involv- 471.

ing partnerships. ^ Cooke v. Cooke, L. R. 4 Eq. 77, 88.

234

ARTICLES OF PARTNERSHIP. § 234.

,of appointing a receiver until the parties have tried to set-
tle their disputes in the way agreed; ^ but its jurisdiction to
grant injunction and receiver is not ousted by such agree-
ment and will be exercised in a proper case.^

And if a contract of dissolution provides, among other
things, for arbitration, and its other provisions have been
carried out and the arbitration is in progress, if one partner
can revoke the submission at all he cannot do so without
rescinding the entire contract.^

§ 234. power of the arbitrators. — If partnership dis-
putes are submitted to arbitration for general settlement and
accounting, the arbitrators do not exceed their jurisdiction by
awarding a dissolution.'' On the other hand, although the' ques-
tion of dissolution may be specifically submitted, among other
things, they need not award upon it, unless the submission requires
a finding upon all points.'

The arbitrators may award that one shall have certain of the
property, or may divide the property between them," and order

1 Waters V, Taylor, 15 Ves. 10. < Green v. Waring, 1 W. Bl. 475;

2Page u Vanklrk, 6 Phila. 264; 1 Hutchinson v. Whitfield, Hayes

Brewst. 283. (Irish), 78. The dissolution was

3 Haley v. Bellamy, 137 Mass. 357., awarded as of a day then past in

In England the statute, 17 and 18 Routh t;. Peach, 3 Anstr. 637. And if

Vic. ch. 125, § 11, now controls, and tlie articles provide that dissolution

provides that if parties have agreed must be by deed, an award under

in writing to submit disputes to atbi- seal satisfies them. Hutchinson v.

tration, and shall nevertheless com- Whitfield, supra.

meuce suit, the court may, if there ssimrnonds v. Swaine, 1 Taunt,

is no good reason to the contrary, 549. See Page v. Vankirk, 6 Phila.

stay the suit on the defendant's ap- 264 ; S. C. 1 Brewst, 282.

plication in order that arbitration 6 Wood v. Wilson, 3 Cr. M. &

may take place. This provision was r. 341 ; Leavitt v- Comer, 5 Cush.

acted upon in Plews v. Biiker, L. R. i29; Lamphire v. Cowan, 39 Vt. 420.

16 Eq. 564; Randegger v. Holmes, L. R. & B., partners, had two establish-

R. 1 C. P. 679; Hirsch v. Im Thurn, nients. One for tailoring and one for

4 C. B. N. S. 569; Gillett v. Thorn- merchandise; they dissolved, and,

ton, L. R. 19 Eq. 599 ; Witt v. Cor- submitting their matters to arbitra-

coran, cited in notes to Wellesford v. tion, the tailoring, establishment

Watson, L. R. 8 Ch. App. on p. 476, was awarded to R., he to pay its

and further explained in Plews v. debts, and the merchandising estab-

Baker, L. R. 16 Eq. 564, 571 ; Russell lishment to B., he to pay its debts

V. Russell, L. R. 14 Ch. D. 471. and R. |468. A creditor of the meiw

235

§ 234. CONDUCT OF THE BUSINESS.

conveyances;' or may award that the debts, when collected, shall
be divided between the parties, because the arbitrators cannot con-
trol the debtors of the firm to prevent their paying all to one part-
ner if they choose; " or that one shall have all the debts due, with a
right to sue in the name of the other if necessary,' or that one
shall pay or secure to the others a specified amount, and assume
the debt;* oi; that one shall take all the property, as trustee, to
wind up; in which case the trustee can maintain trover against a
third person to whom another partner, after such dissolution and
with notice of its terms, has transferred property to secure a debt
of the firm.'

In these cases the arbitrators do right in requiring such partner
to give a bond of indemnity to protect the other partner, regardless
of whether he has acted well or badly; ' and if the arbitrators have
not required it, the court will impose and enforce it by injunc-
tion.'

The arbitrator has no right to collect debts,* nor to order a part-
ner to pay him money to be used in paying debts,' because the
court has no control over the arbitrator; or may forbid one of the
partners from carrying on a competing business within specified
bounds." An award directing accounts to be taken without order-

chandising establishment got judg- f^Cook v. Jenkins, 35 Ga. 113; Bur-

ment and levied on individual estate tonu Wigley, 1 Bing. N. C. 665.

of E. and B. respectively. R. asked ^ Cook v. Jenkins, supra. If the

an injunction against selling his partners have assigned their property

lands before B.'s property was ex- to a trustee with certain instructions

hausted, claiming to be in effect a as to its disposition, and afterwards

surety for B. ; but it was decreed submit to arbitration, recognizing

that he must pay the $468 on the these instructions, the arbitrators

judgment within thirty days, else have no right to deviate from them

the injunction would be dissolved; and make other disposition of the

for each part of the award depends property. McCormiok v. Gray, 13

on the other parts. Runyon v. Bro- How. 26.

kaw, 5 N. J. Eq. 840. 8 Lingood v. Bade, 3 Atk. 501, 505.

1 1 Wood V- Wilson, 3 Cr. M. & R. 241. Nevertheless he did so by appointing

' 2 Lingood v. Eade, 2 Atk. 501, 505. a person for the purpose, the court

3 Burton v. Wigley, 1 Bing. N. C. saying nothing as to the authority in

665. , Routh V. Peach, 3 Anstr. 519.

iSimmonds u- Swaine, 1 Taunt. 9iJe Mackey, 2 A. & E. 356.

549 ; Byers v. Van Deusen, 5 Wend. lo Burton v. Wigley, 1 Bing. N. C.

268. 665 : Morley v. Newman, 5 D. & R.

6 Hutchinson v. Whitfield, Hayes 317 ; Green v. Waring, 1 W. Bl. 47.').
(Irish), 78; Cooki). Jenkius, 85 Ga. 113.

286

ARTICLES OF PARTNERSHIP. § 235.

ing payment of any balance is not invalid, for the court may enforce
the payment of balances."

A submission may be of both partnership and individual mat-
ters, and if the award is of partnership matters only, it must be
shown that individual controversies in fact existed in order to at-
tack it.* The submission of partnershipi matters to ascertain the
share of a deceased partner does not include real estate not alleged
to be partnership property.' An award between partners, relating
to disposition of debts and assets, is not uncertain because their
amounts are not stated if sufiiciently identified. The award need
not provide a method of enforcement. This is often impossible
between partners. It may be valid, though it does not and cannot
affect creditors or debtors of the firm. If the award divides the as-
sets and liabilities, and establishes the rights and duties of the part-
ners between each other, it is final. If the submission embraces
all matters of difference, the award will be presumed, if there is no
evidence to the contrary, to include all matters of difference, and
that all matters of difference were included. It is not uncertain if
it states results and not processes.*

§ 235. Allowances for subsistence. — The best way for ar-
ranging for private expenses, is to stipulate that each part-
ner may withdraw a certain weekly, monthly or other

1 Wilkinson v. Page, 1 Hare, 226. 2 Leavitt v. Comer, 5 Cush. 139.
In Tattersall v. Groote, 2 B. & P. 131, 3 Ebert v. Ebert, 5 Md. 353. Two
where a partner had paid a sum of persons formerly partnei-s submit all
money or premium for admittance matters between them to arbitration,
into the firm, it was held that the After the hearing had begun they
arbitrator could not award its return and another person, who had trans-
unless the question was specifically acted part of their business, submit
submitted, because its payment and to the same arbitrators all unsettled
the formation of the partnership matters between them, and an
was the consideratiou for sustaining award was made in the second arbi-
the covenant to submit to arbitra- tration that a certain sum was due
tioB, and if the articles of partner- such third person. Held, the arbitra-
ship were a nullity the covenant also tors can take such award into con-
was null. Is this piece of ingenuity sideration in determining between
called for ? The award is good if the original parties which of the two
within the submission. The submis- shall pay it. This is not an includ-
sion is just as good upon the consid- ing of matters other than between
eration of mutual promises, as if said first two parties, Wallis v. Car-
there had been no covenant. The penter, 13 Allen, 19.
only question is what was submitted. ■• Lamphire v. Cowan, 39 Vt. 420.

237

§ 237. CONDUCT OF THE BUSINESS.

periodical sum for support. It ought to be provided, also,
that interest should be charged upon sums in excess of
these amounts, since overdrafts do not generally bear in-
terest, or perhaps to provide for interest upon all sums, so
that a partner may receive benefit by drawing less th'an his
amount.

§ 236. Interest.— Capital does not generally bear interest;
while upon loans or advances to the firm, certainly when
made with the knowledge of the other partners, interest is
chargeable; hence, if it be desired that capital draw interest
and advances not, the articles should so state. ^

§237. Expenses. — Provision is frequently made for the
payment of personal expenses, eo nomine. The word ex-
penses, in such case, will at least be confined to the ordi-
nary habit of persons in the same condition of life. Thus,
if it be agreed that each may draw out only so much as is
necessary^ for private expenses, usual expenses of family
and education of children may be included, but not the
purchase of plate, furniture, carriages, and the like.^

Where a person formed a partnership with his son-in-law, agree-
ing to furnish a shop, tools, etc., and a house for his son-in-law to
live in, and that he was to he at " no expense," this means that
outlays for the business wquld not be required, and does not refer
to the support of the family.'

A provision that each partner shall pay his own individual ex-
penses, and that one member shall be liable for all debts made in
New York on account of the firm for which it may not have re-
ceived full benefit, means that the individual expenses of a member
while at home, being his private and family bills, shall be at his
own cost, and does not include traveling expenses away from home
on the business of the firm; nor are board' bills in New York debts
on account of the firm under the exception, but are to be credited
to the partner.''

It is a general rule that each partner may claim reimbursement
for the expenses necessarily incurred by him ii^ the prosecution of

i§781. 'Brown w. Haynes, 6 Jones' Eq.

2Stoughton V. Lynch, 1 Johns. Ch. (N. Ca.) 49.
467. * Withers v. Withers, 8 Pet. 355.

333

ARTICLES OF PARTNERSHIP. § 239.

the business. This subject will be considered under the head Ac-
counting,' and applies even when the partner furnishes no capital
and is to contribute his services; as where one furnishes money
with which the other is to buy land and sell it in parcels, the ex-
penses of surveying are to be credited to him.''

Yet there having been expenses of a peculiar kind which have
been disallowed, or as to which courts have disagreed, such as
treating customers, the intention in regard to these should there-
fore be specified.'

§ 238. Dissolution. — A right to dissolve upon, giving
notice to copai'tners is not unusual; the meaning of such
a clause is elsewhere considered.* A provision that, upon
one partner becoming insolvent, the others may dissolve, it
seems, does not mean a declared or adjudicated insolvency
under insolvent acts.' Nor is insufficiency of assets neces-
sary to constitute insolvency,* if there is inability to pay
debts.

§ 239. covenant to indemnify outgoing partner.— It is

usual, when a retiring partner assigns his interest in the
. firm to his copartners, to receive a covenant from them to
pay debts or to save him harmless. The difference between
these two is that, on a covenant to save harmless or indem-
nify, action lies only after the retiring, partner has paid
debts; but a covenant to pay a debt is broken by non-pay-
ment, and the covenantee need not pay before suing.' Al-

1 § 766.- tire expense will be apportioned to

2 Burleigh u White, 70 Me. 130. each lot in the proportion of its

3 § 766. Where each partner was yield of mineral, and each partner
to contribute torwards the expenses charged with a share of such ex-
in proportion to his interest in the pense in the ratio of his interest in
lots in which the mining operations each lot. Levi v. Karrick, 13 Iowa,
were carried on, and their interests 844.

were in different proportions in the ^ g 574.

different lots, each partner is to be ^ Parker v. Gossage, 2 Or. M. & R.

.charged his proportion of the' ex- 617; Biddlecombe v. Bond, 4 Ad. &

penses of raising the mineral on E. 332.

each lot, but during the time in «See Bayley v. Sohofleld,! M. & S.

which the accounts were not kept so 338. And see Benjamin on Sales,

as to show what expense was in- § 837, under Stoppage in Transitu,

curred on each lot separately, the en- ' j^g 636-640.

239

§ 241. CONDUCT OF THE BUSINESS.

though the liability of the copartners to pay out a retiring
partner may be joint and several,' yet on the bond or cove-
nant of indemnity their liability will be governed by the
language of the covenant; ^ especially where one of the cove-
nantors is an incoming partner, and therefore not liable at
all, except upon the covenant.' The mere recital in a con-
tract of sale or transfer of a business, or an interest in it, that
the consideration is the vendee's assumption of debts or
other expression of intention that they shall pay the debts,
may amount to a covenant to assume them.^

But the retiring partner will not preserve the equitable
lien which he had while partner upon the assets to compel
their application to the debts, unless the lien be specially
reserved;^ hence the contract should preserve the lien ex-
pressly, if that be the intention. But even if it does so, the
nature of this so-called lien must be remembered; it is not a
strict lien, but a mere equitable right to have remaining
assets applied."

§ 240. Outgoing partner not to compete. — As a sale of
the good- will does not prevent the seller from engaging in a
similar and competing business,' so long as he does not
solicit the old customers or represent himself as continuing
the old concern, it- follows that, if a retiring partner is to be
restrained from going into competition, a special covenant
to this effect is necessary.

§ 241. Expulsion of a partner. — A remedy between part-
ners is sometimes provided by inserting a power of expulsion
in the articles. Like all provisions for forfeitures, this is

1 Beresford v. Browning, L. R. 20 the business alone, and plaintiff and
Eq. 564 ; aff'd, 1 Ch. D. 30. defendants again became partners,

2 Wilmer v. Currey, 3 DeG. & Sm. defendants covenanting toindemnify
347, ' against liabilities connected with the

3 Sumner v. Powell, 3 Mer. 30 ; aflf'd, business the parties were formeily
T. & R. 423. in, this covenant refers to the tima

* Saltoun V, Houstoun, 1 Bing. 483, they were all together and not to the

5 See § 550. time when the plaintifiE was alone.

6 Where plaintiff and defendants Haskell u Moore, 29'Cal. 437.
were in business togetlier and de- ' § 664.

fendants retired, plaintiff continuing

240

ARTICLES OF PARTNERSHIP. § 242.

strictly construed,^ and does not exist unless expressly con-
ferred.'' Hence a partner's rights are not forfeited by failure
to pay his share of the agreed capital/ or his share of debts
or expenses;* or refusal to do acts not required when he be-
came a member and foreign to the objects of the concern."
Nor does such a provision in a partnership for a certain term
exist after the term, the partnership being continued with-
out further agreement,^ and cannot be exercised except by
the concurrence of all who have the power to expel; ' and an
opportunity to explain and be heard must be afforded; ' and
he must be allowed to assist in making the accounts to de-
termine his share;" and if annual valuations of shares are
to be taken, and in case of bankruptcy, death or expulsion,
the valuation was to determine the amount due to the out-
going partner, if no valuations were ever made, the power
to expel cannot be exercised, for he will not be bound by an
account afterwards taken by the other partners.'"

§ 242. to be exercised bona Me.— The power must

be exercised hona fide, and for the benefit of the firm, and
not for the benefit of individual partners or on personal
grounds. The obligation to exercise good faith towards
each other imposes these limitations, even though the power

1 Clarke v. Hart, 6 H. L. C. 633 ' Smith v. Mules, 9 Hare, 556.
(aflE'g Hart v. Clarke, 6 DeG. M. & G. s Steuart v. Gladstone, 10 Ch. D.
333, and reversing 19 Beav. 349). 626; Wood v. Woad; L. R. 9 Ex. 190.

2 Hubbard v. Guild, 1 Duer, 663. And see Blisset v. Daniel, 10 Hare,
But the solvent partner can obtain a 493; 1 Eq. 484; Russell i;.. Russell, 14
receiver 'if necessary. Id., and Free- Ch. D. 471.

land V. Stansfeld, 3 Sm. & G. 479. « Steuart v. Gladstone, .10 Ch. D. 636.

s Piatt V. Oliver, 3 McLean, 37 ; 1» Blisset v. Daniel, 10 Hare, 493 ; 1

Patterson v. Silliraan, 38 Pa. St. 304. Eq. 484. Where the accounts were to

* Kimball v. Gearhart, 13 Cal. 37. be taken each year of all assets " sus-

5 Gorman v. Russell, 14 Cal. 531. eeptible of valuation," and an ex-
The onus to prove the right to for- pelled partner was to be paid out ac-
feit existed is upon the person who cording to the last account, adding
exercised it, although he be a de- for the time since a proportion aver-
fendant in the cause where it is in aged on the profits of the three pre-
issue. Patterson v. Silliman, 38 Pa. ceding yetirs, the good-will cannot
St. 304. be allowed for, because not suscept-

6 Clark V. Leach, 32 Beav. 14 ; aff'd, ible of valuation. Steuart v. Glad-
1 DeG. J. & Sm. 409. stone, 10 Ch. D. 636.

Vol, 1 — 16 241

§ 243. CONDUCT OF THE BUSINESS.

is granted in general terms to the majority, without requir-
ing the existence of any specific grounds.

Thus, in Blisset v. Daniel, 10 Hare, 493; s. c. 1 Eq. 484, articles
between seven partners provided that it should be lawful for the
holders of two-thirds or. more of the shares, from time to time, to
expel any partner on a written notice, thus, " we do hereby give
you notice that you are expelled from the partnership," etc. The
managing partner desired to get rid of the complainant as partner,
because he objected to the appointment of the manager's son as
assistant, and, by threatening to the other partners to resign, un-
less the complainant was expelled, induced them to sign the notice,
first having induced him to sign a balance sheet, in ignorance of
the intended expulsion. It was held that no previous meeting of
the partners was necessary to render the notice valid, and that no
grounds for it need be stated; but that the literal construction of
the articles would not be enforced, and that the power could not
be used for private benefit, and on such grounds; and its exercise in
this case was fraudulent and void, and the complainant was decreed
to be reinstated.'

§ 243. Eight to retire or to sell a share. — If the partner-
ship is for a fixed term, a refusal to continue, or any volun-
tary act causing a dissolution, is a breach of contract; hence
if a right to retire is reserved, this should be stated.*

The sale may be made to a person not responsible.'

The right to retire on certain terms, if reserved in the articles,
is deemed applicable only to an existing firm, and not after dis-
solution; hence, if the articles permit any partner to withdraw
during the first year on certain conditions, but one partner died in
six months after the firm was formed, thus dissolving the firm, the

iln case of illegal expulsion, as ners have the good will, can solicit

the party has not ceased to be a part- the old customers, because his alien-

ner, he has not suflEered damagn and ation of it was involuntary, Dawson

cannot sue at law. Wood v. Woad, v. Beeson, 22 Ch. D. 504, and§ 667.

L.^R. 9Ex. 190. But if reinstatement 2 As to when this provision in-

be not an adequate relief, dissolution volves the right to make the buyer

apd accounting may be decreed, or assignee of a share a partner, see

Patterson p. SiJIinoan, -28 Pa. St. 304. § 163. -

The*KpeIled partner going into busi- ^jefferys v. ^mitb, 3 Euss. 158,
ness again, although the other parj-, 168.

ARTICLES OF PARTNERSHIP. § 244.

fight ceased, and the only remedy remaining was the ordinary
suit for an accounting.'

Where notice in writing of an intention to sell is required by the
articles to be given at a monthly meeting, a notice written in a
book kept to be used at such meetings was held sufficient.'

If a right to sell must be exercised by first offering the share to
the copartners, and, upon their refusal to buy,, individual partners
were to have the right of pre-emption, an offer by a partner to sell,
made to all the rest collectively, is equivalent also to giving each
an individual opportunity to buy without additional offers;' and
the acceptance of such offer makes a contract, and the offer cannot
be withdrawn, or a dissolution be had under other provisions.*

A restriction in the articles that neither party should sell or as-
sign his share without the other's consent will not be construed to
apply after dissolution, because it is in restraint of the right of a
person to dispose of -his own property; hence it is not operative
after the concern is in the receiver's hands for final settlement.'

Provisions in the articles, that in case of the death of a partner
the survivor should buy his share, and if he refused it should be
sold, will, where the survivor refuses to buy or admit any buyer
into the partnership, make him accountable for the value of the
share.'

§ 344. Valuation of share of outgoing partner. — "We
shall see, in treating of the subject of winding up, that in
the absence of agreement between partners the general rule
applied by a court of equity is to ascertain the value of
assets by ordering them sold. When a partner retires, dies,
or becomes bankrupt, neither he nor his executor or assign-
ees in bankruptcy can be compelled by the continuing part-
ners to accept the calculated value of his interest, but a
winding up can be insisted upon in the absence of contract

1 Frank v. Beswick, 44 Up. Can. Q. » Noonan v. McNab, 30 Wis. 377.

B. 1. S'ee, also, dictum in Noonan v. Orton,

sGlassington v. Thwaites, Coop. 31 id. 265. In the case cited the

115. But such notice had beenadopted partnership was at will, and not for

under previous sales by the partners, a fixed term; hence the restriction

sHomfray v. Fothergill, L. E. 1 amounted, merely to forbidding a

Eq. 567. dissolution. in that manner.

* Id. And see Warder v. Stilwell, * Featherstonhaugh v. ; Turner, 25

3 Jur. N. 8. 9. Beav. 383.

2,43

§ 244. CONDUCT OF THE BUSINESS.

or statutory regulation.^ Even a stipulation for a division
of assets at the termination of the partnership gives no right
to buy at a valuation nor dispense with a sale.^

To avoid the inconvenient and often ruinous consequences
of such enforced settlement, it is frequently stipulated in the
articles that on the retirement, death or bankruptcy of a
partner his share shall or may be paid out at a valuation.
On account of the constantly fluctuating value of the share
a fixed sum can very rarely be settled upon in advance.'
The most common and convenient way is by agreement
that the share shall be valued as it appeared at the last an-
nual or periodical account, with an addition for the time
since, or interest on such valuation in lieu of profits, or of
profits averaged on those of the past year or years.

This method of valuing the share is generally a very fair and
just one, provided two precautions are observed: 1st. That the
fixed property of the firm, such as its real estate, be included in
the account, and that its nominal value as therein specified be pro-
portionate to its actual worth. 2d. That the good will, which, al-
though it may often be of great importance, is rarely estimated in the
periodical account as an asset, and hence, if it is to be considered
in the valuation of a share, should be specifically provided for.

To constitute a continuing partner it is not necessary that
the business shall be continued precisely the same as before
if it be substantially the same business.

This is illustrated in Read v. Nevitt, 41 Wis. 348, where N. & R.
were partners in the insurance business as agents for seven compa-
nies and did a small real estate business also. The articles provided
that on dissolution the continuing partner should pay the retiring
partner $700. A few days before dissolution, N., without R.'s
knowledge, wrote to the companies of the expected dissolution and
procured the agency of five of them for himself, the other two
ceasing to employ either. N., after dissolution, carried on the busi-
ness as before, and did a little land business .for one old customer,

1 This is provided for by statute ia 2 Cook v. CoUingridge, Jac. 607 ;
some jurisdictions in case of the Eigden v. Pierce, 6 Madd. 353.
death of a partner. See Bammels- 3 Nevertheless, this was done and
berg V. Mitchell, 29 Oh. St. 33. carried into effect in Cox v. Wil-

loughby, 13 Ch. D. 863.
344

AETICLES OF PAETNERSHIP. § 245.

R. transacting no business whatever. It was held that R. was sub-
stantially a retiring and N. a continuing partner, although there
was no agreement or understanding that such was their respective
attitudes. This is not an acquiescence barring R.'s right of re-
covery, and JT.'s letters of solicitation to the companies are com-
petent evidence to show that he was a continuing partner.

§ 245. if last Taluation is imperfect. — In construing

and applying the light to purchase at the last valuation, the
courts will regard the practice of the partners, the course of
dealing among them and the nature of the account actually
taken. If the account did not include all the assets of the
firm, it wiU not from that be supposed that the share to be
purchased was to lose the benefit of the non-enumerated
property.

Thus, where the articles provided that the share of a partner
who should die could be taken at the value according to the last
stock-taking, and the partners had been in the habit of laying
aside part of the earnings as a reserve for unexpected losses, and this
fund was kept out of the account, the executors of a deceased part-
ner are entitled to a share in such fund.' And if the articles pro-
vided for half-yearly settlement of accounts On specified dates, and
the share of a deceased partner is to be taken at the last half-
yearly statement, a subsequent parol agreement to take the accounts
yearly will not be deemed to afFect pecuniary interests, and the
value must be reckoned up to the nearest half-yearly date origi-
nally specifiedi'

In Pettyt v. Janeson, 6 Madd. 146, the articles directed an an-
nual settlement on March 25, and that if a partner died his execu-
tors should receive what the last annual settlement showed to be
due, with five per cent, interest in lieu of subsequent profits. The
settlements were not regularly made and the last one was on No-
vember 5, 1811, and a partner died in February, 1813. His executors
claimed profits to the date of death on the ground that there had
been no annual settlements as agreed upon, while the surviving
partner desired to pay the amount, as it appeared, in November,
1811, with interest. The court held that an annual settlement was
contemplated, and the date of November 5 was to be considered as

1 Coventry v. Barclay, 33 Beav. 1 ; 2 Laws v. Laws, 9 Ch. D. 98.
and on app. 3 DeG.. J. & Sm. 320.

245

§ 245. CONDUCT OF THE BUSINESS.

substituted for March 25, aud required an accounting as of Novem-
ber 6, 1812, and gave interest from that time on the amount thus
ascertained.

In Simmons v. Leonard, 3 Hare, 581, the articles provided for an
annual account, and if a partner died his executor should receive
the amount due him at the last annual account, with interest, in
lieu of subsequent profits; and that his executors should have no
right to examine books. No account was taken for several years
prior to the death of a partner, and the court held that the inten-
tion of the parties was to avoid a winding up and sale, and that
this could be carried out by taking the account from the books.
They therefore refused to require a sale, but allowed the executors
to have an account from the books and to participate in profits to
the day of the death.

In Browning v. Ba-owning, 31 Beav. 316, the articles provided
that five per cent, interest is to be paid on the capital of each part-
ner, and that upon death a share is to be valued as of the last
stock-taking, with five per cent, interest in lieu of profits; and the
executors were held entitled to interest on the capital since the
last annual stock taking, and also interest in lieu of profits; and as
the articles provided that capital contributed by a partner since
the last stock-taking, was to be added into his share, the court
held it to follow that capital withdrawn in the interim was to be
deducted.'

1 If the surviving partners are to the £150 shall be deducted not from
pay a decedent's share as at the last the other's share, but from the gross
balance, in equal instalments every amount, O'Lone v. O'Lone, 3 Grant's
six months up to five years, " with Ch. (Up. Can.) 135. If two partners
interest thereon from the date of the in the construction of a railroad are
balance,'' this means interest on the to receive twenty per cent, of the
instalments remaining unpaid, and contract price in railroad stock, and
not on those paid, Ewing v. Ewing, one of them, with the other's con-
L. R. 8 App. Cas. 828. If the arti- sent, sells out his interest, the buyer
cles provide that at dissolution one becoming a partner in his place, both
partner shall have £150 over and the original partners agreeing that
above one-half of all they might the buyer shall receive his share in
then possess, and that all profits and cash, the other partner must keep
losses shall be borne equally, except the railroad stock towards his share
that such partner should receive of the earnings, Kuapp v. Levan-
£150 more than the other, these way, 37 Vt 398.
clauses construed together mean that

346

ARTICLES OF PARTNERSHIP. § 247.

§246. representatives and assignees bound.— The

agreement for the valuation of a share as by taking the last
annual statements is binding not only upon the parties, but
upon the representatives or assignees of any of them.

But where the share of a retiring partner is to be ascertained by
valuers appointed by each, here, if the dissolution is caused by the
bankruptcy of one partner, such clause cannot be enforced, because
a partner after bankruptcy cannot retain a capacity to act, and no
valuation can be had.' And an agreement for the valuation of a
share made subsequent to the formation of the partnership, and in
contemplation of the bankruptcy of the partner, may be void on
that account;^ and a provision that on bankruptcy of a partner
his share shall go to' his copartners is a fraud on the bankrupt
laws and void.*

If the articles give the right to surnving partners to buy the
share of the deceased partner at avaluation, without specifying the
mode of determining its value, a settlement in good faith with
the administrator binds the distributees of the estate.^

§ 247. specific performance. — Agreements for the

purchase or sale of a share at a valuation can be specifically
enforced, in spite of the uncertainty.* Thus, where a price
was fixed, except upon certain subordinate and subsidiary
assets, which were to be taken at a valuation, specific per-
formance can. be had.^

Where an interest in business was to be sold, ana an agreement
as to paying for the good will, "etc.," as a separate item, the e^
cetera was held to refer to matters connected with the good will,
but specific performance was refused for other uncertainties.' But
if specific performance requires the court to act not in making a
valuation, but in appointing valuers, it will not be granted.*

1 Wilson V. Greenwood, 1 Swanst. able consideration, is valid. Gaut

471. V. Reed, 24 Tex. 46, 54.

21(1. spinham v. Bi-adford, L. R. 5 Cb.

'i Whitmore v. Mason, 3 Jobns. & App. 519 ; Maddock v. Astbury, 33

Hem. 204. . " . N. J. Eq. 181.

< See § 743. An agreement that on 6 Jackson v. Jackson, 1 Sm. & G.

the death of either party the assets 184.

shall vest in the survivor, and he ' Cooper v. Hood, 26 Beav. 393.

shall be debtor to the decedent's ? See Vickers v. Vickers, L. R. 4 Eq.

executor, if bona fide, and for valu- 539; Collins v. Collins, 26 Beav. 306.

247

§ 248. CONDUCT OF THE BUSINESS.

An agreement between S. and L. that in case of S.'s going out S.
should have no right to sell to any one except L., and L. should
have the right to recover S.'s interest, and against that should pay
$1,000, was held to give L. an option to buy the interest at that
price, and not to be an obligation to do so.'

§ 248. Good will. — The subject of the good will belongs
with the dissolution clauses. Its nature and disposition is
considered in a subsequent chapter,^ by consulting which
its vague and even uncertain character as an asset will ap-
pear, and the consequent importance of providing for it.

The nature of the good will, and whether it has any ex-
istence at all, depends on the nature of the business. In a
retail trading partnership, it may have no existence apart
from the locality of the establishment, except In so far as it
is involved in the trade- marks of the firm, and in the right
to use the trade name.- In a professional partnership it may
have no existence at all recognizable by law, unless an ex-
istence is created for it by contract of the parties; hence, if
a retiring partner in such a partnership is to have an allow-
ance in regard thereto, the value of the good will should be
agreed upon.

In some partnerships the good will is involved chiefly in
the name, as in case of a newspaper, and sometimes is so
important an element of value that the cessation of busi-
ness for a day, involving a destruction of the good will, would
render the other assets of comparatively little value, a^ in
the case of a newspaper. The courts will, however, pre-
serve the good will in winding up ^as far as possible, if no
provision has been made.

The good will, in so far as it has a value, is a partnership
asset, and on the death of a partner does not belong to the
survivors; but the sale of the good will by an outgoing
partner will not prevent him from going into the same kind
of business, the utmost effect of such sale being to prevent
his soliciting old customers, or to represent himself as sue

1 Scharringhausen v. Luebsen, 52 2 § 657 et seq.
Mo. 337.

248

ARTICLES OF PARTNERSHIP. § 249.

cesser to the old firm ; hence, without repeating here matter
that will appear elsewhere, it is only necessary to suggest:

1st. That the articles recognize, and if possible provide for
valuing the good will, if it ba designed to recognize it in
those partnerships where it has no legal existence apart
from contract, as in partnerships dependent on confidence in
personal skill and integrity.

2d. If the surviving or continuing members, on death or
the retirement of a partner, or expiration of the partner-
ship, are to become owners of the good will, this should be
provided for.

3d. If on dissolution the use of the old name or trade-
marks is to belong to certain partners, this should be stated,
guarding the agreement so as to protect retiring members
fi'om the hazards of being held out as partners still.

4th. If the partnership is for a term the court will gen-
erally value the good will, in case of premature dissolution,
at so many years' purchase of the profits; but if the part-
nership is one at will, this rule will not apply; and if the
good will is to belong to the continuing partners, the amount
to be paid to a retiring partner, if any, should be provided
for.

5th. If the outgoing partner is not to go into a compet-
ing business, this must be specified, with reasonable limita-
tions as to territorial restriction, as explained in the chapter
on Good Will.

§ 249. Continuance after death — Representatives and an-
nuitants.— As death causes a dissolution of the partnership,
and as executors or , representatives of the deceased cannot
take his place in the firm without consent of the surviving
partners, and as, on the one hand, the sadden dissolution
and winding up of the firm, or taking the decedent's share
out by sale, may cripple the surviving partners or destroy
the prosperity of the concern, and on the other the executor
cannot leave the share in at the hazard of business without
personal responsibility therefor, unless the will or the articles
provide for it, it is frequently provided that the partnership

, 249

§ 249. CONDUCT OF THE BUSINESS,

shall not be dissolved by death. The difference between such
provision in a will and in articles is this: if provided for
only in the will, the other partners are not bound to let in
the representative, for they have not agreed to do so.^ And if
in the articles, the surviving partners are compelled by their
agreement to admit him.^ But the representative is not
bound to come in to the extent of active participation in
management by which he will become liable as a partner
to third persons, and if he refuses the whole partnership
must be wound up unless some other arrangement has been
made; ' as by valuation of shares or gradual payments.

The representative is entitled to reasonable time and opportunity
for investigation before electing whether he will come in, but is
not entitled to require a judicial accounting.'' But doing any part-
nership act is an exercise of the option.' But the terms on which
a representative can come in must be strictly complied with. Thus,
if an administrator can do so by giving notice within three months
after the death, a notice by the widow within three months, but
without having become administrator until after the three months,
is not sufScient.* And if he can come in on condition he acts to
the satisfaction of the survivors, their discretion in excluding him
is final.'

If the will provides for the continuance of the partnership by
the surviving partner for the benefit of the estate, or by him and
the executor, only such of the assets of the deceased partner's es-
tate as are already embarked will be subject to the hazards of the
business, unless, in the most clear and explicit terms, the intention
to risk more, or to authorize the executor to do so, appears.'

We have already seen that a mere annuitant, vrho does not par-
ticipate in the management of the business, is not liable as a part-
ner, at least in most jurisdictions.' If the annuity is payable out
of profits, either absolutely or at the election of the surviving

1 § 158. 5 Edwards v. Thomas, 66 Mo. 468.

sPagei'. Cox, 10 Hare, 163; Wain- « Holland ■«. King, 6 C, B. 727.

Wright V. Waterman, 1 Ves. Sr. 311. And see Brooke v. G-arrod, 3 De G. &

8 Kershaw v. Matthews, 3 Russ. 62; J. 62; 3 K. & J. 608.

Downs V. Collins, 6 Hare, 418 ; Madg- 7 Milliken v. Miliiken, 8 Irish Eq. 16,

wick V. Wimble, 6 Beav. 495. 8 § 600.

« Pigott V. Bagley, McCl. & Y, 669. 9 §§ 51-55.

250

ARTICLES OF PARTNERSHIP. § 250.

partner, and there are no profits, lie need not pay it; hence, if the
annuity is intended to be in the nature of interest on purchase
money, or to be payable absolutely, it should not depend upon the
state of the earnings.'

§ <J50. Penalty. — It is often attempted to reinforce a
partner's motives to keep faith and observe his covenants
by affixing an agreement to pay a penalty or sum as liquid-
ated damages upon breach. Upon these clauses the general
rules must be remembered:

1st. That if the amount to be paid is by way of penalty,
it vsrill not be enforced unless a,ctual damages to the amount
be shown.

2d. Calling the amount liquidated damages will not make
it such, but it may still be a penalty, though the parties
agree that it shall not be; and so calling the sum a penalty
will not deprive the parties of the right to have it treated as
liquidated damages, if such is its nature and the term pen-
alty was not used technically.

Thus, in Maxwell v. Allen, 78 Me. 32; one partner agreed to sell
out his interest to the other, an appraisement to be had to deter-
mine the amount, — the value of the property was about $25,000, —
and a stipulation that whichever party should break the contract
was to forfeit $500, was held to make this sum liquidated damages.

The amount may be treated as liquidated damages if, independ-
ent of the stipulation, the damages would be uncertain, conject-
ural and incapable of auy accurate ascertainment, provided the
agreed amount is not obviously excessive.

A single amount as liquidated or ascertained damages cannot,
however, be agreed upon to extend to breaches of any of the sev-
eral covenants which are of various degrees of importance, thus
putting them all upon the same basis; hence, a covenant that for
breach of any of the foregoing stipulations a- party shall pay a
named sum as liquidated damages, and not as penalty, is worthless,
and the court will treat the amount as penalty.^ Nor will the cov-
enant be separated or garbled,* so as to apply to those breaches

I Ece parte Harper, 1 De G. & J. 180. ' To use the expression of Cham-
2Kemble v. Farren, 6 Bing. 141; bre, J., in Astley «. Weldon, 2 B, &

Charleston Fruit Co. v. Bond, 26 P. 346.

Fed. Rep. 18.

851

§ 250. CONDUCT OF THE BUSINESS.

which are in their nature uncertain." And where a large sum is
agreed on as damages for the non-payment of a small sum, it will
always be regarded as penalty and not enforced. . Again, care must
be taken to provide against payment of the agreed damages being
the limit of compensation; ° and to prevent the covenant being in
the alternative, whereby, upon payment of the agreed damages, a
continued ' breach will be authorized and relief by injunction no
longer attainable.

1 Id. Ves. 106; PerzeU v. Shook, 53 N. Y.

' See Clarke v. Lord Abingdon, 17 Superior Ct. 501.

253

CHAPTER II.

CAPITAL AND PROPERTY.

§ 251. }Vhat is capital. — ^The capital of the firm is the
sum of the amounts agreed to be contributed by each part-
ner as the basis for beginning or continuing the business. It
must be distinguished from advances by partners, which are
in effect loans to the firm and not obligatory uppn them to
make. The importance of distinguishing between the two
arises particularly with regard to charging interest, to with-
drawal of funds by any partner which the articles may pro-
hibit to the extent of impairing his contribution to the capi-
tal, and to the proportion of profits to which each is entitled,
which is often fixed as in the ratio of the capital of each.

Thus, where four persons agree to buy oil lands for resale, each
contributing in specified proportions to be repaid from sales, and the
lands have greatly depreciated, aad one filed a bill calling upon
the others to make up the difference between -the amounts contrib-
uted by him and them, these contributions are capital and not ad-
vances, otherwise there would be no capital, and hence there was
no right to compel contribution.'

Where a former book-keeper was taken into the firm, and an
amount due him from the old firm was placed to his credit on the
books of the new, the fact that no amount of capital which he
should contribute had been agreed on shows that this credit was not
a contribution to capital, but rather a loan to be repaid him with
his share of profits.^

Where W. contributed a plant, valued in the articles at $40,000,
which was to continue his property until the firm had repaid him
$24,000, which he had expended upon the plant, it was held that
his capital was only 116,000, being the difference between these
sums.'

1 Foster v. Chaplin, 19 Grant's Oh. 2 Topping v. Paddock, 93 111. 93.
(Up. Can.) 351. See, also, Wood v. s Worthington v. Macdonell, 9
Scoles, L. R. 1 Ch. App. 869. Duval (Canada), 327.

253

§ 252. CONDUCT OF THE BUSINESS.

Where the owner of a business sells a half interest or other share
to another who goes into partnership with him, the considera-
tion paid by the buyer is not a contribution by him to capital, but
is the seller's individual property."

§ 252. The articles of partnership, or the will of a partner,
may use the term capital in a sense different from its ordinary and
recognized signification, and which then becomes a question of con-
struction of the document. Thus, where one partner died, leaving
a will, in which, after speaking of his interest in the firm, he re-
quired his " present capital " to be left in for two years, — his interest
in the firm was then $43,000, — the question was ^'ow much was
to be left in. It appeared that each partner had contributed
$20,000 as capital, and the articles provided that neither the capi-
tal nor the accrued but undivided profits were to be iised by either
partner, and at dissolution each was to draw out his original capi-
tal, and division of the rest of the assets was provided for. These
provisions of the articles clearly distinguished the interest into
capital and undrawn profits, and prevented the $23,000 from being
treated as capitalized, and the $20,000 only is to remain in. The,
fact that the withdrawal of the $23,000 would injure the prosperity
of the business cannot affect the construction, since but for the
will the entire $43,000 must have been drawn out.'

On the other hand a testator may make no distinction between
the primary fund and its accretions, and may use capital in a gen-
eral sense, including all the accumulated earnings of the firm which
remained invested.'

Where no fixed amount of capital is agreed on, but the partners
are to advance money as needed to put up the works and start the
business, and profits are to be divided in proportion to the contribu-
tions, the reasonable construction is that contributions should
cease when the business becomes self-supporting, and after that
time a partner cannot, without the other's assent, increase his inter-
est in the profits by additional contributions."

1 Ball V. Farley (Ala.), 1 South. 90 Pa. St. 143, 146. In Stidger v.
Rep. 253 r Evans v. Hanson, 42 111. Reynolds, 10 Oh. 351, money got on
234. See Jbhes' Appeal, 70 Pa. St. joint credit was called floating capi-
169. tal in distinction to fixed capital,

^Deani). Dean, 54 Wis. 23. but this Is incorrect; borrowing on

'As was the case in Thomas v. joint credit is not creating capital,
Lines, 83 N. Ca. 191. for an equivalent joint debt is

* Paxson, J., in PNilmer's Appeal, thereby created.

254

CAPITAL AND PROPERTY, § 255.

§ 253. Other than money. — Capital need not be contrib-
uted ill money, but may be in stock, real estate or other
property. The use of a patent or trade secret or good will,
in fact anything to which the copartners may acquire a joint
title or which creditors can reach, may be contributed as
capital. But where one partner contributes only his time,
skill and experience, it is improper to call this his capital, for
it has none of the attributes of capital, and in case of loss
counts for nothing against the amount due the other partner
for contributions of capital proper.

§ 254. Contrilbution should Ibe free of liens and charges. —

I£ a person agrees to contribute his business, stock on hand, etc.,
against a specified sum to be paid in by the copartner, this business
and stock goes in as his share of capital, whether its value exceeds
or falls short of the contribution of the other, and must be put in
free of liens and without charge for transportation. If, for ex-
ample, some of the goods are in the hands of factors and subject to
their liens, the amount of these claims, and the cost of delivering
the goods at the firm's place of business, will on an accounting be
charged to the partner who contributed them.'

§ 255. Right to increase it. — When profits are to be di-
vided in proportion to capital, the amount of each partner's
capital ought to be definitely fixed. And in such case no
partner can increase his capital without the consent of the
others, either by additions, advances or the use of undrawn
profits.^

1 Dunnell v. Henderson, 23 N. J. more than that amount, L. is not a
Kq. 174. And if a person agrees to partner in the excess, and if less, L.
■•advance" teatns and tools to a is entitled to an allowance as dam-
farming partnership, it means free ages, because the articles in effect rep-
of cost, but they continue his prop- resented that such an amount was
erty. Nichol v. Stewart, 36 Ark. there. Sexton v. Lamb, 27 Kan.
612. Where S. takes L. into partner- 436.

ship in a stock of ice, the articles re- ^Crawshay w. Collins, 3 Russ. 335;

citing that, in consideration of $150, 15 Ves. 218 ; 1 Jac. & W. 367 ; Far-

S. "puts in the concern six hun- mer v. Samuel, 4 Litt. (Ky.) 187 (14

dred and sixty tons of ice now at R.'s Ain. Dec, 106) ; Cock v. Evans.'O Yer.

ice house," if S.'s stock of ice is (Tenn.) 287, 295-7.

255

§ 256, CONDUCT OF THE BUSINESS.

Thus, in Fulmer's Appeal, 90 Pa. St. 143, 146, a partnership of two
were engaged in a very profitable business, and profits were to be di-
vided in proportion to capital. The products of the factory, if sold,
would have realized all necessary money to pay expenses, but one of
the partners, with a view of increasing his own interest in the busi-
ness, held back the products from sale and paid the expenses out of
his own pocket. It was held that this did not increase his interest,
and that the other partner had a right to have the sales made.'

Even where it is provided that the capital may be in-
creased, a contribiition of money which can at any time be
withdrawn will not be deemed an addition to capital; nor
should such increase be at discretion, apart from the neces-
sities of the business, or without notice to the other part-
ners, unless the articles permit this.

In Tutt V. Land, 50 Ga. 339, one partner furnished the entire
capital, $29,000, and it was stipulated that if the necessities of the
business required more, and he supplied it, interest at a certain rate
should be allowed thereon. At the end of a year this partner's
share of the profits amounted to $19,000, which he allowed to re-
main in the business, but without any agreement that an increase
was necessary or notice to his copartner that the rights of the firm
had attached to the undrawn money. Hence, as he had never
parted with his individual right to it, the interest to be received
upon increase of capital was not allowed.'

§ 256. Is not individual property. — The capital,' in what-
ever shape contributed, becomes at once the property of the
firm and is no longer individual property. The phrase capi-
tal, or capital stock, conclusively excludes the idea of con-
tinued individual proprietorship.

Thus, if a partner was to contribute money, but, instead
of so doing, puts in horses and wagons, already owned by
by him, they are no longer his individual effects, and the
partnership creditors have a priority over his private credit-

1 For a furtheri point in this case drawn profits were added to the
see § 253. original capital.

2 s. P. Dumont v. Euepprecht, 38 ' Where the use only of a thing is
Ala. 175. But see Raymond v. Put- contributed, the thing itself is not
nam, 44 N. H. 160, 168, where un- capital because it is not contributed.

256

CAPITAL AND PROPERTY. § 257.

ors in them on dissolution, although no credit upon the
books was given hiin for them.'

So if one partner contributes a building and machinery and
the others cash, the building and machinery cease to be in-
dividual property, although the title may have been left in
the original owner's name, and if destroyed by fire, the firm,
and not he, must bear the loss.^

The fact that one partner is to, and does, coutribute all the
capital, and the other services only, does not affect the rule,
nor should it. Even if in such case the partners dissolve
the day after the contribution to capital was made, the capi-
tal is joint property, but the interests in it may be in the
proportion of all to nothing,* whether the partnership be
regarded as a joint ownership in different proportions, or the
firm be considered a conventional entity distinct from its
constituent members, and the members' interests a mere
claim upon a share of surplus. The rules of distribution on
winding up, which require repayment of capital to the re-
spective partners after equalizing losses before distribution
between them, prevents any inequality arising from the
cessation of individual ownership in the contribution of
capital.

§ 257. Partnership in profits alone. — The partnership
may exist in the profits alone without any joint interest in
the property, not only in professional and mechanical, but
in manufacturing partnerships.* There is a difficulty in ap-

1 Robinson v. Ashton, L. R. 20 Eq. his own horses ; Crawshay u Maule,
S5 ; Ex parte Morley, L. R. 8 Ch. 1 Swanst, 523 ; Peacock v. Peacock,
App. 1026; Clements u Jessup, 36 N. 1 Camp. 45; Ex parte Hamper, 17
J. Eq. 569. Ves. 403 ; Steward v. Blakeney, L.

2 Taft V. Schwarab, 80 III. 289. R. 4 Ch. 603; London Assur. Co. v.

3 See, for example, Malley ?j. At- Drennen, 116 U. S. 461, perhaps not a
lantio Ins. Co. 51 Conn. 223; Brad- partnership; Berthold «. Goldsmith,
bury v. Smith, 21 Me. 117; Nutting ■«. 24 How. 536; Stevens v. Faucet, 24
Ashcraft, 101 Mass. 300. 111. 483, and Fawcett v. Osborn, 33

4 French v. Styring, 2 C. B. N. S. id. 411, one owned the hides, the
357, 363, in the earnings of a race- o^her to work on them — probably
horse ; Fromont v. Coupland, 2 Bing. not a partnership, though called
170, and Barton v. Hanson, 2 Taunt, so ; Robbins v. Laswell, 27 111. 365,
49, in a stage route, each providing one owned the cattle ; Flagg v.

Vol. I— 17 357

§ 258. CONDUCT OF THE BUSINESS.

plying this doctrine to mercantile partnerships, on account
of the principle that what is purchased with profits is joint
property", whatever the original contributions may have
been.' So, also, property used to prosecute the partnership
business may be owned by the partners as tenants in com-
mon and the partnership may be confined to the profits.^

§ 258. When not.— If one party advances all the money
to buy goods on joint account, the partners are deemed to
be joint owners in the goods as well as in the profit and
loss.' And if one party advances money to be invested
in goods, this may not create a partnership at all;^ but if is
a partnership inter se the presumption seems to be in favor
of joint ownership in the goods as well as a partnership in
profit and loss, in the absence of a contract to the contrary.'

Stowe, 85 111. 164, in the use of Mq. App. 631 ; Syers v. Syers, L. R.
machinery, a paten^, and lands sep- 1 App. Cas. 174; Chase v. Barrett, 4
arately owned ; Graves v. Kellen- Paige, 148.
berger, 51 Ind. 66; Sturaph v. Bauer, iSee §§ 261, 265.
76 Ind. 157; Dupuy v. Sheak, 57 2 Examples of this will be found in
Iowa, 361; Root v. Gay, 64 id. 399; the subjects of Real Estate, Ships
City Fire Ins. Co. v. Doll, 35 Md. 89, and Mines. See, also, French v. Sty-
only the use of a mill and teams con- ring, 2 C. B. N. S. 357, 363, a race-
tributed; Blanchard v. Coolidge, 22 hoise owned in common, but per-
Pick. 151; Howe v. Howe, 99 Mass. haps not a partnership. See, also,
71, 73; Moody u. Eathburn, 7 Minn. Rushing u^Peoples, 42 Ark. 390, of
89 ; Hankey v. Becht, 25 id. 212 ; goods held in common.
McCauley v. Cleveland, 21 Mo. 488 ; 3 Reid v. Hollinshead, 4 B. & C.
Gillham v. Ketone, 45 Mo. 487 ; State 867 ; 7 D. & R. 444; Raba v. Ryland,
eocreZ. t). Finn, llMo. App. 546; Bow- Gow. N. P. 133; Tupper «. Hay-
ker V. Gleason (N. J.), 7 Atl. Rep. thorne, id. 135; iJe Cellar, 1 Rose, 297;'
885; Champion v. Bostwick, 18 Miller v. Sullivan, 1 Cint. Superior
Wend. 175; Conklin v. Barton, 43 Ct. Rep. 271 ; Soule v. Hay ward, 1
Barb. 435, one owned the hotel, they Cal. 345. See Julio v. Ingalls, 1 Al-
were partners in running it; Moore len, 41.

V. Huntington, 7 Hun, 425 ; Bisbee v. * This is the explanation of such

Taft, 11 R. I. 307 ; Bartlett v. Jones, 2 cases as Meyer v. Sharpe, 5 Taunt. 74 ;

Strob. L. 471 (47 Am. Dec. 606). The Smith, v. Watson, 3 B. & C. 401 ; 3

above authorities abundantly dis- D. & R. 751 ; Rice v. Austin, 17 Mass.

pose of the statements apparently 107; Bartlett v. Jones, 3 Strob. L.

made that a partnership in the 471, and those in §§ 34-40.

profits and in the property must 5 Bradbury v. Smith, 31 Me. 117;

go together, in Dwinel v. Stone, 30 Knight v. Ogden, 2 Tenn. Ch. 473;

Mo. 384 ; Newbergcr v. Fields, 23 Newbrau v. Snider, 1 W. Va. 153. And

258

CAPITAL AND PROPERTY. § 259.

§ 269. Examples. — Where A. agreed to build houses for B.
at actual cost, the houses and lots tp be sold, and the proceeds, de-
ducting cost of houses, and an agreed value for the land, to be
divided, if a partnership at all, it is in the disposition of the prop-
erty and not in the buildings; hence, A. is not liable to subcon-
tractors.'

Where F. advanced money to build a mill on R.'s real estate,
they to be partners until the mill is finished, and then R.'s money
and his share of the profits are to be refunded, as it appeared that
F. was not expected to have any interest in the mill, he is to be
regarded as a partner in the profits alone, that is, on division, R.
is to receive the mill, and F. his money back with profits.'

A provision in the articles of a carriage manufacturing partner-
ship, that one partner should put in the entire capital, and the
other, who was to give his whole time, should have no interest or
ownership therein, will not be co-nstrued to extend to the stock
made by the latter, or under his supervision, or to the materials or
stock bought by the firm to carry on the business; but m.eans that
on dissolution the balance only above the amount put in by the
other partner should be divided.'

So if partners owning separate parts of the stock allow a
mingling of them, so that the separate interests cannot be identi-
fied, the whole will be treated as joint.^

If partners in the profits alone of cattle invest the proceeds in
more cattle, the partner who had an interest in the original herd
assenting that his profits upon them shall go into the new pur-
chase, he has an interest in the latter and not merely in the profits,
which is subject to execution.'

Where S. gave N. $300 to buy sheep, S. to have half the profits,

if the firm Is formed to manufact- i Bisbee v. Taft, 11 R. I. 307.

ure under a secret process, the in- spearceu Pearce, 77 111. 284.

vention will be deemed to belong 'Snyder v. Lunsford, 9 W. Va.

to all the partners, and each can use 233.

it after dissolution unless the right ^Sirns v. Willing, 8 S. & R. 103;

of property has been confined to Chappell v. Cox, 18 Md. 513 ; White

one partner. Morison 'v. Moat, 9 Mountain Bank v. West, 46 Me. 15;

Hare, 241; Kenny's Patent Button- Laswell v. Robbins, 39 111.309; King

Holeing Co. v. Sdmervell, 38 L. T. v. Hamilton, 16 HI. 190.

N. S. 878; 26 W. E. 786. SHankey v. Becht, 25 Minn. 213.

269

§ 261. CONDUCT OF THE BUSINESS.

and if there were losses he was to have no interest, the partner-
ship extends to the sheep and is not confined to the $300.'

Where G. buj's the stock, good will and fixtures of a business,
and admits B. to a partnership, reciting the purchase, and agrees
to give B. half the net profits, the consideration from B. being his
knowledge of the business, the stock, gftod will and fixtures re-
main A.'s property."

§ 260. Where one party furnished all the capital, and the
other had no interest in it, but was a partner in the profits
only, the separate creditors of the former can levy upon the
capital stock; ' but the separate creditors of the latter can-
not levy upon it, because the debtor has no interest, and
such levy is a trespass. Nor has he any interest in the
profits, unless profits are made, and the other partner can
show that there were no profits.*

§ 261. purchases with profits. — In all cases, how-
ever, even where it is stipulated that the capital shall belong
to one party, all property, whether real or personal, which
is purchased with partnership funds or profits, belongs to the
partnership and not to one partner.

A very important and interesting application of this principle was
made in Clark's Appeal, 72 Pa. St. 142. There M. had contributed
to the partnership of M. & C. a foundry and other real estate, re-
taining the legal title, but carried in the stock account to his credit;
but there was a reservation in him of a right upon dissolution to
withdraw the property from the firm at its original valuation. The
buildings burned down and were rebuilt at a greater cost with part-
nership funds. On dissolution, the property having risen in value, M.
claimed it, and it was allowed to him by the master, on payment of
the additional cost of building; but this was reversed, the court
not allowing it to be withdrawn at all; holding that M. lost the

iNewbrau v. Snider, 1 W. Va. * Smith u Watson, 3 B. & C. 401;

153. 8 D. & R. 751 ; Blanchard v. Coolidge,

2 Bowker v. Gleason (N. J.), 7 Atl. 23 Pick. 151 ; Dupuy v. Sheak, 57

Eep. 885. Iowa, 361 ; Gillham v. Kerone, 45

sStumph V. Bauer, 76 Ind. 157. Mo. 487; State ex rel. v. Finn, 11

And see Eushing v. Peoples, 43 Ark. Mo. App. 546 ; Bartlett v. Jones, 2

890. Strob. L. 471 (47 Am. Deo. 606).

260

CAPITAL AND PROPERTY. § 261.

rigM on allowing rebuilding out of joint funds. The renewed
property not being of equivalent value with the original, and the
undestroyed part bearing no relative value, and the destroyed part
being incapable of» valuation and not represented by the cost, the
property must be regarded as a new thing.

Where the articles of partnership between R., M. and G. provided
that the capital should belong to R. and M. exclusively, but they buy
machinery for the concern, but credit themselves upon the books
with the cost of it, they thereby make it the property of the firm
and cannot maintain trover against G. for it; ' and articles bought
with partnership earnings belong to the firm,, and are not governed
by such provision in -the articles.* So shares in a corporation
bought with partnership funds in the name of one partner are
deemed to be held for the firm.' So of real estate so bought.*

Insurance issued to partners on partnership property, though it
specifies the amount of interest of each partner, is joint property,
and if one partner after a loss receives his proportion of insurance
money, he 'must account to the firm for it;' and so of insurance
on the entire stock, taken out by one partner, he must account to
the firm for payment of loss."

So the lease of property for the firm is partnership property.'
And if one partner, in contemplation of approaching dissolution,
procifres a renewal in his own name, or does so after dissolution,
where the firm had a privilege of renewal, he holds the new term in
trust for all the partners; and so of any property acquired in viola-
tion of the duty to observe good faith.'

1 Robinson v. GilfiUan, 15 Hun, Fed. Rep. 737. A partnership to
267. build a railroad does not carry the

2 Snyder v. Lunsford, 9 W. Va. 223. stock already held by each, and one
But the mere fact that advertising, partner cannot deal with the others'
of which the firm had had the bene- stock then acquired. Alspaugh v.
fit. had been paid out of partnership Mathews, 4 Sneed, 216.

funds, does not give each partner on * See § 281.

the expiration of the firm a share in 5 Northrup v. Phillips, 99 111. 449.

the advantages of the publicity. 6 Manhattan Ins. Co. -y. Wheeler, 59

Morison v. Moat, 9 Hare, 241, 266. Pa. St. 227.

8 Ex parte Connell, 3 Deac. 201 ; ' Priest v. Chouteau, 12 Mo. App.

Ex parte Hinds, 3 De G. & S. 613; 252; 85 Mo., 398; Morton v. Ostrom,

Wilde V. Jenkins, 4 Paige, 481 ; Ken- 88 Barb. 256.

ton Furnace Mfg. Co. v. McAlpin, 5 8 § 305.

261

§ 263. CONDUCT OF THE BUSINESS.

§262. Purchases by one may be advances. — The mere
fact that personal property used by the firm is bought with
the money of one partner does not necessarily give rise to
the inference that it is his,' though it may be his and the
use only conti-ibuted.^ But the contribution of- the use of
the thing, and not of the thing itself, occurs much more fre-
quently in cases of real estate than of personal property.

Lumber which a partner buys with his own means and sends to
the copartners to be used in erecting the firm's mill, and part is so
used, and the rest is prepared and fitted for such use, will all of it
be regarded as partnership property."

So a partner who mingles his own cattle with that of the firm
upon its farm, the business being that of raising and dealing in
stock, will be regarded as converted into joint property, and its in-
crease is the firm's and any loss a joint loss.*

§ 263. Incoming partners. — Where the owner of a busi-
ness takes in partners, it becomes a question of intention
whether the stock becomes partnership property or not, and
an intention that it shall may be inferred, in the absence of
express agreement, from the nature of the property, con-
duct and circumstances.'

If in such case the incoming partners agree to pay their
proportion for the property, or contribute a certain amount
in the future, the partnership not being conditioned upon

1 Ex parte- Hare, 1 Deac. 16; 2 property bought by one with his
Mont. & A. 478. own funds, to be used for partner-

2 Cutler V. Hake, 47 Mich. 80, of ship purposes, is presumed as be-
teams; Ex parte Owen, 4 DeG. & tween partners to re7iiain his own
Sm. 351, of ofHce furniture; ^a; parte property, and if consumed or de-
Smith, 3 Madd. 63, of utensils. As stroyed in the use and replaced by the
to the right of third persons to rely other partners, the new property be-
upon the apparent or reputed owner- longs to the same partner individ-
ship of the stock in possession of a ually. Kelly v. Clancey, 16 Mo.
firm, see § 104. App. 549.

'Person i). Wilson, 25 Minn. 189. ^ Ex parte Owen, 4 DeG. & Sm.

4Laswell v. Robbing. 39 111. 209; 351; Parker v. Hills, 5 Jur. N. S.
Kingv. Hamilton, 16111. 190; White 809; 7 id. 833. And see PiUing v.
Mountain Bank v. West, 46 Me. 15. Pilling, 3 DeG. J. & S. 162.
There is one decision holding that

262

CAPITAL AND PROPERTY. § 264.

the payment, the property becomes joint from that time; '
and if a leasehold be assigned by the lessee to the new firm,
the unexpired term of the lease, after dissolution, belongs
to the partners and not to him alone; ^ but not if the lease
remained individual property and its use only was contrib-
uted as long as the firm should exist.'

A person having an established business took in his two sons as
partners, he putting in his business and stock as capital, in esti-
mating the value of which the debts due were put at twenty per
cent, below their face, but in fact yielded more; and the excess was
held to be part of the capital of the parent and not profits.*

§ 264. But where the transfer is distinctly in futuro, and
conditioned upon unfulfilled terms, the title does not pass.

Where three partners agreed to manufacture the ore of a fourth
partner, and for that purpose to erect suitable buildings, to be paid
for out of profits, and, having leased a lot and put up' buildings
with their own funds, abandoned the partnership and went into an-
other business on the property, the buildings do not belong to the
firm."

Where C, having an established business, took B. into partner-
ship and contributed the business, but certain chronometers be-
longing to C. were put in under a stipulation that they should be
, taken at a valuation, but the valuation was never fixed, and at dis-
solution they were left with C. and treated as his own, with the
knowledge of B., they were held never to have been partnership
property.'

L. & F. were partners in the livery business, and L. bought a
stable for the business, agreeing to convey one-half to F. whenever
the latter should pay half the purchase money. L. died, and final
settlement by F., as surviving partner, showed a balance due F.,

1 Malley v. Atlantic Ins. Co. 51 2 Morton v. Ostrom, 33 Barb. 256.

Conn. 322; Sims v. Willing, 8 S. & SBurdon v. Barkus, 4 Giff. 412;

E. 103; Rogers v. Nichols, 30 Tex. aff'din4DeG. F. & J. 43.

719. Here A. contracted to buy a <Cook v. Benbow, 3 DeG. J. &

storehouse and merchandise, and Sm. 1.

then took B. and C. into equal inter- swadsworth v. Manning, 4 Md.

ests with him, they agreeing to pay 59.

their proportion, — the property be- ^penny v. Black, 9 Bosw. 310.
comes that of the firm.

368

§ 265. CONDUCT OF THE BUSINESS.

whereupon he asked specific performance of the contract to convey,
but the court regarded the agreement to convey as an individual
and not a partnership transaction, and therefore presumably not in-
cluded in the settlement and balance.'

§265. acquired with joint funds. — If property is

bought by a partner in his own name for use by the firm,
and is paid for with partnership funds, it is partnership
property,^ and the firm may sue on warranty in the sale.'

Thus, if an application for a patent by partners is rejected, but
a subsequent application by one partner is accepted, the patent be-
longs to the firm, and the patentee cannot appropriate the whole.*

And articles manufactured by the firm under a patent belonging
to one partner may be sold after dissolution as the property of the
firm, as if the license still continued."

Hence, if an application for insurance states that the firm owns
the land, the mere fact that the title was in the name of one part-
ner doee not amount to a misrepresentation.'

And if a partner uses the funds of the firm without authority
to purchase property for himself, either in his own name or that
of his wife, or others, the other partners can require it to be held
in trust for the firm.'

A judgment confessed in favor of one partner to secure a debt
due the firm is held by him in trust for the firm.' And so a judg-
ment in favor of the firm, and sold by its assignee for creditors
and bought in by a third person for the firm, is held as partnership

1 Fish V. Lightner, 44 Mo. 368. 'See §§ 545-6. A firm of mechan-

2 Wilde V. Jenkins, 4 Paige, 481 ; ics engaged to do certain work, and
Smith V. Smith, 5 Ves. 189, 193; before its completion successive
Robley v. Brooke, 7 Bligh, 90 ; Mor- changes in the firm by the retire-
ris V. Barrett, 3 Y. & J. 384; Hersom. ment of some members and addition

' V. Henderson, 23 N. H. 498 ; Scott v. of others took place, the old firm, as
McKinney, 98 Mass. 344. This sub- it continued liable to the employers,
jeot is considered further under Eeal may file the lien, but holds it for the
Estate, § 379 et seq. benefit of the last firm, which owns

3 Hersom v. Henderson, supra. the debt, though as to the employer,
* Vetteru Lentzinger, 31 Iowa, 183. the subsequent firms may be regard-
sMontross v. Mabie, 30 Fed. Rep. ed as agents of the original to do the

234. work. German Bank v. Schloth, 59

8 Collins V. Charlestown Mut. F. Iowa, 516.
Ins. Co. 10 Gray, 155. sChapin v, Clemitson, 1 Barb. 311.

264

CAPITAL AND PROPERTY. § 267.

property and not as tenants in common, and one partner can sell
it to close up business.'

§266. indiyidual property acquired at firm's ex-
pense.— Property bought with money of the firm may,
however, have been purchased for one partner alone, and
hence is not partnership assets, but so much of the fund
has been converted into separate property; and the fact that
he is charged in the books with the cost is evidence of this
fact.^ And so the firm may have lent money to a partner
to make a purchase, in which case he is debtor for the
amount, and not trustee of the purchase.'

Where a partner invented a machine and procured a patent for
it in his own name, but at the firm's expense; and the firm also
paid the cost of some litigation, ,but was more than repaid by the
benefit of the free use of the machines, the patent is not partner-
ship property, and after dissolution the other partners cannot use
or vend it;* and inventions relating to improvements in machinery
to facilitate the partnership business are the inventor's individual
property, although he is bound to give his whole time to the firm's
business." But if he affixes his inventioii to the firm's machines,
each member can after dissolution continue the use of those ma-
chines with the invention embodied in them.'

§367. Claims oatside of scope. — As partners may en-
large the scope of the business at will, it follows that claims
arising in transactions outside of the original purpose of the
firm may be joint assets and not individual property. Thus
where a firm in the dairy business rendered services in herd-
ing cattle, and brought suit for their compensation in the
firm name, it is no defense that they were not in the busi-

1 Thursby v. Lidgerwood, 69 N. Y. Rep. 47 ; Mc Williams Mfg. Co. v.
198. Blundell, H Fed. Rep. 419: 33 Pat.

2 Reno V. Crane, 3 Blackf. 317; Off. Gaz. 177.

Smith V. Smith, 5 Ves. 189; Walton 5 Belcher v. Whittemore, 134 Mass.

y. Butler, 39 Beav. 438 ; Bx parte 330 ; Burr v. De La Vergne, 103 N.

Emly, 1 Rose, 64. And see similar Y. 415.

cases under Real Estate, § 384. swade v. Metcalf, 16 Fed. Rep,-

3 See Smith v. Smith, 5 Ves. 189. 130.
♦Keller v. Stolzenbach, 30 Fed.

365

§ 269. CONDUCT OF THE BUSINESS,

ness of herding, and therefore could not sue as a firm, for
the compensation would go to the firm.*

§ 268. Claims for damages. — A judgment in favor of part-
ners for trespass to goods of the firm is assets of the partnership
so as to preclude the defendant from set-off of a claim against one
partner." So if one partner rents property to the firm, and an in-
creased expense in transacting business occurs by the city empty-
ing a sewer near it, damages for this are due to the firm and not to
him, although his rent is in proportion to the amount of business.'
Where a stage-coach partnership was obliged to pay damages for
injury to a passenger of the coach caused by its being upset while
on a ferry boat, its claim against the owner of the boat passes by
a sale of all its property to two of the partners on dissolution."
On the other hand a claim in favor of partners in a coal mine
against a railroad company for appropriating part of th6ir land
was held not to pass by a sale by one of the partners to the other
of all his interest in the property, for the claim is not part of the
property." A claim for a penalty for charging illegal fees to a firm,
if given by the statute, not by way of redress, but as a punish-
ment, to such individual as shall first begin suit for it, cannot be
recovered by the firm."

§ 269. Perspnallbeneflt. — A benefit may be conferred upon
a partner for his exclusive use, for which be will not be ac-
countable to the firm. As where a ship belonging to a
Frenchman and an American was captured by a British
cruiser, and compensation made to the American for his in-
terest alone, to the exclusion of the Frenchman, this was
held to be his individual property.'' ^

Where one partner holds an offlce, the emoluments of the
office are generally presumed to be individual property; ' but
the emoluments may be assets if the general scope of the

1 Tiernan v. Doran, 19 Neb. 493. 551. See Thompson v. Ryan, 3 id.

2 Collins V. Butler, 14 Cal. 323. 565, that if the property itself be
'Bread v. Lynn, 126 Mass. 367. restored, its joint character has con-
< Blakeley v. Le Due, 23 Minn. 476. tinned. Moffat v. Farquharson, 2
s Blackiston's Appeal, 81^ Pa. St. Bro. C. G. 838.

339. ' 8 Alston v. Sims, 34 L. J. Ch. 553;

6 Fowler V. Tnttle, 34 N. H. 9. 1 Jur. N. S. 458; Starr v. Case, 59

' Campbell v. Mullett, 3 Swanst. Iowa, 491 (§ 324).

266

CAPITAL AND PEOPERTY. § 271.

partnership business include it, and it takes time belonging
to the firm,' or if the course of dealing between the partners
may show that they were regarded as partnership assets.^
And in such case the holder of the office will, upon dissolu-
tion, be left in the office and charged with its value as an
asset.'

A license to one partner to sell liquors being a matter of personal
confidence will not authorize a sale to his copartner, nor is the
latter his agent, but agent of the firm.* A license to a firm will
authorize the continuing partner to act alone; ° but qucere had the
change been by taking in a new partner.*

§ 270. Insurance cases. — The question as to the nature of
the title of the partners and the firm, and the effect of
changes of membership, frequently arises to perplex the
courts under the clauses in policies of insurance against
alienation and change of title or assignment of the policy.
When a partner retires or a new one comes in, the adjust-
ment of the insurance policies are put away out of sight and
out of mind, least thought of and most easily overlooked; it
is to, be wished that these often distressing complications
might be set at rest by the companies themselves or by ap-
propriate legislation.

§ 271. taking in a partner. — In Malley v. Atlantic Ins.

Co. 51 Conn. 222, M., having an established business, took in N.
as partner, who was to put in $10,000 during the first year, but
never did so. Although N.'s interest in the firm may be worthless
because the firm owed to M. the entire value of the stock, yet the
property contributed by M. has ceased to be his alone, and his in-
surance policy, which contained a clause of avoidance in case of
change of title or possession, or if M. ceased to have the entire and
unconditional ownership for his own use, became void. The dis-

1 Collins V. Jackson, 31 Beav. 645, < Webber u Williams, 36 Me. 513;
of one attorney holding a clerkship. Shaw v. State, 56 Ind. 188.

2 Caldwell ?;. Leiber, 7 Paige, 483, 6 United States u.. Glab. 99 U. S.
where one partner acted as deputy 225; State v. Gerhardt, 3 Jones' L.
postmaster, but the firm's clerks did 178, of a liquor license. Contra,
the work. Harding v. Hagar, 63 Me. 515, of a

3 Ambler v. Bolton, L. E. 14 Eq. license to act as broker,

427 ; Smith v. Mules, 9 Hare, 556. ^ United States v. Glab, supra.

267

§ 272. CONDUCT OF THE BUSINESS.

senting opinions do not deny the principle, but claim, first, that no
partnership was to be formed until N. put in his money; second,
that an actual and not technical change of title was intended, and
N.'s ownership was a mere fiction and not one for all purposes;
and, third, that the partnership was in the profits and not in the
stock.'

But in Cowan v. Iowa State Ins. Co. 40 Iowa, 551 (20 Am. Rep.
583), which the preceding case denies, the clause against alienation
in a policy was construed to mean alienation of the entire interest,
and taking in a partner was held not to vitiate the policy to the ex-
tent of the original owner's interest. This is inconsistent with the
theory that a firm is an entity distinct from its members."

§ 272. - — -retirement of one Of several partners. — A sale
by a retiring partner of his interest in the firm to his copartners was
held not to vitiate the policy, either as a violation of the clause
against assignment of the policy or any interest therein, or as an
"alienation of the property, for a partner has no interest in any
aliquot part of the whole, but merely a share in the surplus, and
there may be no surplus; or, as other cases put it, each owns^er
my et per tout, and the policy necessarily contemplates that certain
circumstances may place the entire interest in one partner or some
less, than all, such as death or bankruptcy of one, or where, on dis-
solution, one partner is debtor and others may become entitled to
the whole surplus as creditors.'

1 The same consequence of avoid- * So in Scanlon v. Union F. Ins. Co.
ing the policy was held to follow the 4 Biss. 511. That an individual part-
introduction of a new partner in an ner has an insurable interest in the
existing firm, in Drennen v. London partnership property, Converse v.
Assur. Corp. 20 Fed. Rep. 657; re- Citizens' Mut. Ins. Co. 10 Cush. 37;
versed on other grounds, S. C. 116 Manhattan Ins. Co. v. "Webster, 59
U. S. 461. In Liverpool, London & Pa. St. 227.

Globe ilns. Co. v. Verdier, 35 Mich. 3 HofEman v. .^tna F. Ins. Co. 33
395, the company treated the policy N. Y. 405 ; West v. Citizens' Ins. Co.
as valid after the assured had taken 27 Oh. St. 1 ; 22 Am. Rep. 294; Pierce
in a partner, hence the point did not v. Nashua F. Ins. Co. 50 N. H. 297 ;
arise ; and in Card v. Phoenix Ins. Co. Texas Banking & Ins. Co. v. Cohen,
4 Mo. App. 424, S. & N., after pro- 4.7 Tex. 406; 26 Am. Rep. 298; Dreu-
curing insurance, took in K. as a nen v. London Assur. Corp. 20 Fed.
partner, and afterwards S. sold out Rep. 657 (dictum). Contra, Dix v.
to N. & K. and the policy was held Mercantile Ins. Co. 22 111. 272; Hart-
void, ford F. Ins. Co. v. Ross, 33 Ind. 179.

268

CAPITAL AND PEOPERTY. § 274.

The theory that the company may have relied upon the watch-
fulness of the particular partner who had retired was said to amount
to nothing, because watchfulness was not stipulated for, and he
could abstain, even while a partner, from care or attention for any-
thing in the policy.'

§ 273. retirement of one of two partners. — And the

same reasoning was adopted Jo show that a sale by one of two
partners of all his interest in the firm to his copartner, thus con-
verting the assets from joint to separate property, did not avoid
the insurance.'

§ 274. Possession. — As the partnership property belongs
to all the partners, one partner has as much right to its, pos-
session as the others; hence, while the exclusion of one

Nor a change of interests, leaving the Mass. 108 ; 49 Am. Rep. 30 (the
possession where it was. Drennen clause here was against a sale and
V, London Assur. Corp. 20 Fed. Rep. not against change of title, and sale
657 (dictum); reversed ou other was said to mean sale of the whole;
points, 116 tJ. 8. 461. Other cases deny this case- also suggests the entity
recovery on the technical ground theory, holding that the firm is con-
that no number less than all those tracted with as one person and inter-
originally contracted with can sue, nal changes are not considered) ;
and all cannot sue, because one has Pierce v. Fire Ins. Co, 50 N. H. 297 ;
no Interest remaining. Baltimore F. 9 Am. Rep. 235; Combs v. Shrews-
Ins. Co. V. McGowan, 16 Md. 45 ; Tate bury Ins. Co. 34 N. J. Eq. 403, 411-
V. Mutual F. Ins. Co.. 13 Gray, .79; 12; Hoffman v. ^tna F. Ins. Co. 33
Tillou V. Kingston Mut. Ins. Co. 5 N. Y. 405 (afl'g 1 Eobfc 501; 19 Abb.
N. Y. 405 (rev. s. C. 7 Barb. 570). Pr. 235) ; Wilson v. Genesee Mut. Ins.
This ground is answered in West v. Co. 16 Barb. 511 ; Hobbs v. Memphis
Citizens' Ins. Co. '27 Oh. St. 1, bus- Ins. Co. 1 Sneed (Tenn.), 444, here a
taining a suit under the code in the transfer or sale of property was not
name of the continuing partners, and forbidden, but only an assignment of
is ignored in Powers v. Guardian Ins. the policy ; hence the buying partner
Co. 136 Mass. 108, sustaining suit in can recover for his own original in-
the names of all the original insured, terest. Texas Ins. Co. v. Cohen, 47

1 Powers V. Guardian Ins. Co. 136 Tex. 406. Contra, Finley v. Lyco-
Mass. 108; 49 Am. Rep. 20; Hoffman ming Mut. Ins. Co. 30 Pa. St. 311,
V. iEtna F. Ins. Co. 82 N. Y. 405 ; forbidding alienation by sale ; Buck-
West V. Citizens' Ins. Co. 27 Oh. St. ley-«. Garrett, 47 id. 204; Keeler v.
1; 33 Am. Rep. 394. Niagara F. Ins. Co. 16 Wis.. 538. A

3 Burnett v. Eufaula Home Ins. Co. dissolution and division of goods
46 Ala. 11 ; 7 Am. Rep. 581 ; Derniani was held a change of title, avoiding
V. Home Mut. Ins. Co. 26 La. Ann. a policy, Dreher v. .^tna Ins. Co. 18
69; Powers v. Guardian Ins. Co. 136 Mo. 138.

269

§ 273. CONDCTCT OF THE BUSINESS.

partner by another is a violation of his rights for which
equity will afford a remedy, yet a recovery of possession
cannot be had by replevin or detinue, for the plaintiff is as
little entitled to take possession as the defendant; the pos-
session of each is equally rightful.' Nor can one maintain
trover against the other, ^ unless there was a destruction of
the property or what amounts to a destruction of it, as far
as the plaintiff is concerned.'

§ 275. Applications. — Hence, if the partnership stock was all
furnished by one partner and was to remain his property, and
profits and losses were to be divided, he cannot sustain replevin
nor show an exclusive title by proof- that there were, no profits,
and hence that the other partner had no interest, for this is equiv-
alent to having an accounting in a law case."*

In Crabtree v. Clapham, 72 Me. 473, it was held that if a partner
gets possession of the joint property from his copartner by re-
plevin, and has sold it, judgtnent must be rendered against him,
but for the whole value and not half the value. His undertaking
was to return the whole property in case he was not entitled to the
possession. The presumption that partners are equal owners in the
absence of evidence will not obtain "(and in this respect the former
case of Clapham v. Crabtree, 67 Me. 326, is certainly overruled),
and the burden is on the plaintiff to show that less than the entire
amount is sufficient. Otherwise, any insolvent and debtor partner
could get all the property by paying one-half to his defrauded co-
partner, and the latter would only have a worthless judgment for

1 Buckley v. Carlisle, 3 Cal. 420 ; Small, 54 Barb. 223 ; Smith v. Book,
Kuhn V. Newman, 49 Iowa, 424; 5 Up. Can. Q. B. (O. S.) 556. See
Whitesldes v. Collier, 7 Dana, 283 ; Martyn v. Knowles, 8 T. R. 146.
Crabtree v. Clapham, 67 Me. 326 ; s Jacobs v. Seward, I4 R. 5 H. L.
Clapham v. Crabtree, 72 id. 473 ; Azel 464; Mayhew v. Herrick, 7 C. B. 229,
V. Betz, 3 E. D. Smith, 188 ; Whelen where a sale of the whole on an exe-
V. Watmough, 15 S. & R. 153; Ports- cution against one was held to be
mouth V. Donaldson, 32 Pa. St. such a destruction by the sheriff.
203; Course v. Prince, 1 Mill (S. Ca.), And see Execution, § 1108. Cubitt
413 (13 Am. Dec. 649). v. Porter, 8 B. & C. 357; Stedman

2 Fox V. Hanbury, Cowp. 445 ; Har- v. Smith, 8 E. & B. 1.

per V. Godsell, L. R. 5 Q. B. 423 ; < Kuhn v. Newman, 49 Iowa, 434.
Robinson v. Gilflllan, 15 Hun, 367; And see Remington t>. Allen, 109
Morganstern v. Thrift, 66 Cal. 577; Mass. 47.
Kellogg V. Fox, 45 Vt. 848 ; Smith v,

370

CAPITAL AND PROPERTY. § 275.

his balance at the end of a suit for an accounting. It was queried,
however (pp. 477-8), whether the plaintiff had not, hy replevying,
estopped himself to claim that it was partnership property and
therefore must pay in fuU. If the other partner was abusing the
property, an injunction or receiver should have been asked for.

So, where the plaintiff leased ground for a nursery to X. for
five years, and X. sold out his lease and business to plaintiff and de-
fendants, who formed a partnership in the nursery, and near the
end of the term plaintiff notified defendants to deliver possession
at the end. of the term and divide the trees, leaving his share in
the land or to sell them all, but the defendants removed the trees
to another nursery, no rights of the plaintiff have been violated,
because the possession of one is the possession of all.'

So where S. and H., partners, being sued on their notes, H.
pleaded that they assigned .a large amount of property to one A.,
to pay their creditors, and that the creditors, including the plaint-
iffs, took the property from the assignee's hands and delivered it
to. S. to dispose of for the creditors without H.'s knowledge, and
thereby he suffered damage, this is no defense for a restoration of
possession to one partner, and his acceptance is within his powers.
The defense is also bad as being a set-off in favor of one partner
in an action against both."

Where J. bought corn of M., not disclosing that it was for the firm
of J. & C, C. has the right to take possession, if the contract is
completed, without being liable for a conversion. In such case, if
he got possession by replevying in his own name instead of in the
joint names of J. & C, the possession so obtained will be referred
to the right of property and he is not liable ex delicto.^

So one partner cannot sue another in trespass for any action of
his in relation to the property,'' even if one sold the entire stock
against the will of the other, and he and the buyer broke into the
store and took the goods.' As one partner cannot replevy from
another, so he cannot replevy from the bailee of the other partner.'

1 Portsmouth v. Donaldson, S2 Pa. ing that had the goods been actually
St. 203. destroyed perhaps an action might

2 Cooley V. Sears, 25 111. 613. lie ; Dana v. Gill, 5 J. J. Mar. 342 ; 20

3 Conklin v. Leeds, 58 111. 178. Am. Dec. 255 ; Whitesides v. Collier,

4 Whitesides v. Collier, 7 Dana, 283. 7 Dana, 288 ; Mason v. Tipton, 4 Cal.
sMontjoys v. Holden, Litt. Sel. 276.

C-as. 447 (13 Am. Dec. 331), suggest- e Per Hunt, C. J., Tell v. Beyer,

271

g 277. CONDUCT OF THE BUSINESS.

§ 276. We have seen that in certain cases the partners
could sell the entire stock, but in case of fraudulent collusion
between the seller and buyer the other partner's right to the
possession is not taken away and he can sue the vendee in
trover. He is not to be embarrassed by the theory that at
least the interest of the seller passed because it deprives him
of the benefit of the delectus personarum} A sale by one
partner of his entire interest in the firm to a third person is
a dissolution of the partnership, and 'the remaining partner
has the right to the possession in order to wind up.^

Injunction against the buyer and the guilty partner will
be granted.'

§ 277. No crime against possession. — For the same rea-
sons a partner cannot commit a crime by any acts relating
to the possession of the partnership property; for example,
he cannot be guilty of embezzlement of the funds, for he is
both principal and agent; * or larceny or burglary.' So if a

38 N.Y. 161, 162; but in this case the principle was held to apply even
defendant did not deny the plaint- where one partner had agreed that
jflE's ownership, but merely his own the other might sell his interest, for
possession, and hence could not rely this is not an agreement to give up
on the other partner's title. See the -right of property, and the buyer
Keegan v. Cox, 116 Mass. 389. cannot sue the other partner for con-

1 Fox V. Eose, 10 Up. Can. Q. B. 16. version if he sells. Chase v. Scott,
See, also, Canal Co. v. Gordon, 6 33'Iowa, 309.
Wall. 561, abstracted in § 383. 3 Sloan v. Moore, 37 Pa. St. 217:

2Meaher v. Cox, 1 Sel. Cas. Ala. High v. Lack*, Phil. (N. Ca.) Eq. 175;
156; 37 Ala. 301; Niohol v. Stewart, Halstead v. Shepard, 38 Ala. '558,
36 Ark. 612, 631; Miller v. Brigham, 573.

50 Cal. 615; Reece v. Hoyt, 4 Ind. ''Soule v. Hay ward, 1 Cal. 345;
169 ; Chase v. Scott, 83 Iowa, 309 ; State v. Butman, 61 N. H. 511 ; Na-
Flynn v. Fish, 7 Lansing, 117 ; Hor- poleon v. State, 3 Tex. App. 533.
ton's Appeal, 18 Pa. St. 67 ; Mont- Here N. and R. were to become part-
joys V. Holden, Litt. Sel. Cas. 447 ; ners with equal capitals. R. handed
13 Am. Dec. 331; Mason v. Tipton, 4 his contribution to N., who kept the
Cal. 276; Crosby v. McDermitt, 7 money and abandoned the enterprise.
Cal. 146 ; Blaker v. Sands, 29 Kan. N. was held guilty of embezzlement,
551, 558. The buyer has no right to on the ground that no partnership
participate in the management, and had been consummated,
his only remedy is by suit for an ac- 5 Jones v. State, 76 Ala. 8, wherp
counting to have the seller's share one partner killed the other while
ascertained and paid over; and this the latter was trying to take monty

272

CAPITAL AND PROPERTY. §277.

partner entitled to commissions from' the firm falsely repre-
sent that he has made a sale, and so got the commission, he
cannot be indicted for false pretenses, but it is merely an
item in the account.^ So, also, one partner cannot arrest
his copartner on an allegation of fraudulent removal or em-
_bezzlement of the partnership property.^ But, as the crime
of conspiracy may consist in doing a civil wrong, if a part-
ner conspires with a person to swindle the firm by false ac-
counts, he is indictable for conspiracy, although had he so
acted alone it would not have been a crime; ' and a partner
who forcibly ejects a copartner, and threatens him if he
ever enter again, may be bound over to keep the peace.*

If a partnership ^sset has become individual property,, it
can then, of course, become the subject of crime by a co-
partner.^

Generally if property belonging to the firm or placed in
its possession is taken by a third person from the manual
possession of one partner, all the partners and not he alone
must bring the replevin to recover it.'' There may, however,
be cases where the title still remains in one partner, in which
case he can maintain replevin in his own name.'

from the drawer, and t)iis was held i Reg. v. Evans, 9 Jur. N. S. 184.
not to reduce the crime from murder 2Cary v. Williams, 1 Duer, 667;
to manslaughter. Alfele v. Wright, Soule v. Hayward, 1 Cal. 345.
17 Oh. St. 338, one partner saying of 3 Reg. v. Warburton, L. R. 1 Cr.
the other that he broke into the store Cas. 274; 11 Cox, C. C. 584.
and carried away the goods, is not * The Queen v. Mallinson; 16 Q, B.
slanderous jper se, for it charges no 367.

crime. In Becket v. Sterrett, 4 5 Thus, in Sharpe v. Johnston, 59
Blackf. 499, a charge of pilfering out Mo. 557, partners dissolved, adjust-
of the store -was held actionable, be- ing their affairs, and to one was
cause it might riot refer to partner- allowed certain drafts and notes as
ship money alone. Chancellor Za- cash; the other being subsequently
briskie expressed himself as not employed to collect them, does so as
satisfied that a partner could not be mere agent; hence, a prosecution for
guilty of larceny of the goods of the embezzlement, if he converts the
firm, when, being indebted to it, he proceeds, is not malicious,
stealthily removes and appropriates 6 gaul i;. Kruger, 9 How. Pr. 569.
them, Sieghortner v. Weissenborn, 'In Boynton v. Page, 13 Wend.
20 N. J. Eq. 173, 185 (rev. on other 435, one partner was to find stock
points, 31 id. 483) ; but the chancel- for harness making and the other
lor is in a minority. was to work it up ; a third person

Vol. 1-18 273

§ 278. . CONDUCT OF THE BUSINESS,

§278. Exclusive right of possession in one. — But if

the partners have agreed that one of their number shall
have exclusive possession, as they may do, whether it be by
covenant in the articles or subsequent delivery by a debtor
partner as security to the creditor partner, this right of
possession, if violated, may be enforced by replevin, not.
only against third persons,' but against copartners,^ or those
holding for them.'

And notice of dissolution, and that one would thereafter
conduct the business, is evidence of such possession ; * or an
action against the copartner can be brought in covenant* if
the right of exclusive possession is given under seal; but an
action on case will not lie.'

When the goods have been divided and the joint owner-
ship severed, each taking part in severalty, trover yvill lie by
one for his share against the bailee from the other, who had
wrongfully pledged the share after division.*

having taken possession of the stock 2 Ivey v. Hammock, 68 Ga. 428 ;
before it was worked up, the partner Belcher v. Van Dusen, 37 111. 381.
who was to furnish the stock re- ' Harkey v. Tillman, 40 Ark. 551 ;
plevied jt in his own name alone; it Kahlev. Sneed, 59 Pa. St. 388; Bart-
was held that he could do so, for the ley v. Williams, 66 id. 329 ; Jenkins
stock might be considered as his un- v. Howard, 21 La. Ann, 597 ; Hunii
til work had begun upon it, since any v. Morris, 44 Miss, 814.
other stock would have suflSced the <KeJly v. Murphy (Cal,), 13 Pac.
copartner. The defense, however. Rep, 467,

did not plead that title was in the * Clay v. Grubb, 1 LUt. (Ky.) 223,

firm, 6 Williams t>. Barton, 8 Bing. 139 ;

1 Bostick V. Brittain, 25 Ark, 482. aff'g 5 B. & Aid. 395.

274

* CHAPTER m.

REAL ESTATE.

§ 279. The subject of the partnership real estate, its
treatment as converted into personal property when held as
part of the capital or stock of a partnership, its consequent
devolution in case of death, and the effect on the treatment
of the legal title, are so important as to require a separate
chapter. The English law and our own are in general har-
mony upon the subject, ex;cept that with us equity, in the
absence of a clear intention to the contrary, treats the real
estate as converted into personalty only to the extent of i
partnership necessities, and not for mere purposes of di-
vision of the surplus beyond those necessities, whereas,
in England, the conversion is out and out, and the sur-
plus goes to the personal representative and not to the
heir.

The first thing to be determined is whether land is con-
verted into personalty at all; that is, whether it is partner-
ship property or held as individual property in a tenancy in
common. Land may be either an adjunct to a partnership
which deals in other things or it may itself be the commod-
ity dealt in. This last kind of partnership is necessarily
post-feudal. Under the influence of the feudal system,
where land was reserved as the reward of the soldier or as
the basis of the military organization of the community,
placing it beyond the control of the occupant or the reach
of his creditors, such a partnership could not exist. But as
these influences relaxed and real estate became gradually
emancipated from feudal restrictions, land became more
and more a mere auxiliary to commercial enterprise, and I
niay now be the commodity or stock dealt in by a partner-

275

§ 280. CONDUCT OF THE BUSINESS.

ship formed for the purpose of such dealing generally or
for the disposition of a designated tract.^

But when land is a mere incident or investment in an
ordinary partnership it becomes somewhat difficult to ascer-
tain whether it is partnership property or not.

§ 280. When it is part of the joint stock.— The legal title
of real estate, if in the name of more than one partner,
is always held by them as tenants in common, but in equity
it may be partnership property.

And there is as much difference between individual and
partnership real estate as in personal property. In the one
case partnership creditors may have their usual priorities in
distribution in equity, and a creditor partner a lien for his
advances; on dissolution the liquidating or surviving part-
ner has a right to resort to the property. A mortgage by a
partner will bind his individual share if it be individual
property, but if it is partnership property, will reach only
a share in the surplus after paying all partnership debts,
subsequent as well as prior. So partition may be had of
property owned in individual shares as individuals, but if
it be partnership real estate a court of equity will no more
grant partition than it would decree a partial accountings
unless there are no debts or equities inter se to be adjusted,
and a variety of , other differences would doubtless occur on
reflection.

That real estate is held in the joint names of several per-
sons, and that those peteens- are in partnership, does not
make the property partnership assets if not shown to have
been bought with the joint funds for partnership purposes.^
Whether real estate is partnership or individual property is

iFor example, the following were 417, 432; Chester v. Diokerson, 54 id.

real estate partnerships: Darby v. 1 (13 Am. Rep. 550) ; 53 Barb. 349 ; 45

Darby, 3 Drew. 495; In re Warren, How. Pr. 326; Gray v. Palmer, 9

2 Ware, 333 ; Clagett v. Kilbourne, 1 Cal. 616.

Black, 846 ; Thompson v. Bowman, ^ Thompson v. Bowman, 6 Wall.

6 Wall. 316; Dudley ■«. Littlefleld, 316. See §387.
21 Me. 418 ; Sage v. Sherman, 2 N. Y.

276

REAL ESTATE. § 281.

purely a question of the intention of the partner, and as
this is rarely expressed in the deed, becomes — except in
Pennsylvania^ — a matter of inference and evidence. The
most usual and most controlling considerations when the
articles are silent are the ownership of the funds with which
the property was paid, the uses to which it was put, or how
it was entered and carried in the accounts of the firm.
These evidences must be examined separately.

§ 281. procured with partnership funds. — Real es-
tate bought or leased with partnership funds for partner-
ship purposes, and applied to partnership uses, is deemed to
be partnership property whether the title is in all the partners
as tenants in common, or in less than all, in the absence of
any agreement. There is no necessity for any agreement in
such cases. The statute of frauds has no application, but the
title is held in trust for the flrm.^

1 § 289. 335, 337 ; Willet v. Brown, 65 id. 138 ;

2 Crawshay v. Maule, 1 Swanst. 37 Am. Rep. 365 ; Hogle v. Lowe, 13
495, 518 ; Hoxie v. Carr, 1 Sumner, Nev. 386 ; Jarvis v. Brooks, 37 N. H.
C. C. 173; Shanks v. Klein, 104 U. 37; 59 Am. Deo. 359; Oilleyv.Huse,
S. 18; OfiEutt V. Scott, 47 Ala. 104, 40 id. 358; Messer v. Messer, 59 id.
125; Little v. Snedecor, 53 id. 167; 375; Ma);lack v. James, 13 N. J. Eq.
Hatchett v. Blanton, 73 id. 433; 136 ; National Bank u Sprage, 30 id.
Espy V. Comer, 76 id. 501 ; McCauley 13 (reversed on other points, 31 id.
V. Fulton, 44 Cal. 355 ; Sigourney v. 530) ; Campbell v. Campbell, 30 id.
Munn, 7 Conn, 11; Matlock v. Mat- 415; Fairchild v. Fairchild, 64 N. Y.
lock, 5 Ind. 403; Morgan v. Olvey, 471, 479 (aff. 5 Hun, 407); Buchan
58 id. 6 ; Loubat v. Nourse, 5 Fla. 350 ; v. Sumner, 2 Barb. Ch. 165 ; Smith
Robertson w. Baker, 11 id. 193; Price v. Tarlton, id. 336; Delmonico v.
V. Hicks, 14 id. 565; Buck v. Winn, Guillaume, 2 Sandf. Ch. 366; Cox v.
11 B. Mon. 320; Divine v. Mitchum, McBurney, 2 Sandf. 561; Deming v.
4 id. 488; 41 Am. Dec. 241; Scruggs Colt, 3 id. 284; Rai;ik v. Grote, 50 N.
V. Russell, McCahon(Kan.), 39; Bry- Y. Superior Ct. 275; Hanfl v. How-
ant V. Hunter, 6 Bush, 75; Burnam ard, 8 Jones (N. Ca.), Eq. 440; Sum-
V. Burnam, 6 id. 389 ; Spalding v. may v. Patton, 1 Winst. (N. Ca.) Eq.
Wilson, 80 Ky. 589 ; Bu£Eum v. Buf- 53 ; Bank v. Sawyer, 38 Oh. St. 839,
turn, 49 Me. 108 ; Burnside v. Mer- 343 ; Greene v. Greene, 1 Oh. 535 ; 13
rick, 4 Met. 587; Dyer v. Clark, 5 id. Am. Dec. 643; Page v. Thomas, 43
.■563; 39 Am. Dec. 697; Howard v. Oh. St. 38; Tillinghastv. Champlin, 4
Priest, 5 id. 583 ; Scruggs v. Blair, B. I. 173 ; Bowman v. Bailey, 20 S.
44 Miss. 406 ; Carlisle v. Mulhern, Ca. 550 ; Hunt v: Benson, 3 Humph.
19 Mo. 56; Crow v. Drace, 61 Mo. (Tenn.) 459; Willis v. Freeman, 35

277

§ 282, CONDUCT OF THE BUSINESS,

So of property originally contributed as stock, or if orig-
inally paid for by each out of his separate means, or brought
into the use of the firm at its formation, and subsequently
agreed to be converted into partneirship property, it becomes
part of the capital.^

§ 282. improvements out of joint fund. — If the land

is owned in undivided interests by persons who compose a
firm, but had been paid for by the individual funds of the
owners, but is improved out of partnership funds for part-
nership purposes, or part of the purchase money is paid for
with the firm's assets, and the property is used for partner-
ship purposes, it is partnership property.^

And so, though the land belonged to one partner, yet, if
the firm places valuable and permanent improvements upon
it for firm pui-poses, and essential to the firm, this shows
an intention to make it firm property, and the firm owes
him the value at the time of the appropriation;' though

Vt. 44 ; Dewey v. Dewejr, 35 id. 555 ; to the distillery, and that the disil -
Pierce v. Trigg, 10 Leigh (Va.), 406; lery might well be an incident to the
Brooke v. Washington, 8 Gratt. 348 land, aud that the creditors of the
(56 Am. Dec. 142) ; Diggs v. Brown, firm were entitled to priority.
78 Va. 293; Hardy v. Norfolk Mfg. iSigourneyu Munn, 7 Conn. 11;
Co. 80 id. 404; Martin v. Smith, 25 Hogle v. Lowe, 13 Nev. 286; Way v.
W. Va. 579 ; Bii"d v. Morrison, 12 Stebbins, 47 Mich. 396 ; Wiegand v.
Wis. [138]; Bergeron v. Eichardott, Copeland, 14 Fed. Rep. 118; s. C. 7
55 Wis. 139 ; Martin v. Morris, 62 id. ^awy. 442 ; Arnold v. Wainwright,
418; Conger v. Piatt, 25 Up. Can. 6 Minn. 358.

Q. B. 277. And if bought by one 2 Roberts v. McCarty, 9 Ind. 16;
partner in the name of a third per- Smith v. Danvers, 5 Sandf. 669 ;
son, it can be followed and recov- Lane u. Taylor, 49 Me. 352; Collins
ered if no bona fide right intervene, v. Decker, 70 id. 23 ; Devehey v. Ma-
See §§ 544-546. In Spalding v. Wil- honey, 33 N. J. Eq. 347 ; Godfrey v.
son, 80 Ky. 589, on a contest between White, 43 Mich. 171 ; Boppu Fox, 63
partnership creditors and individual lU. 540; Geopper v. Kinsinger, 39
creditors of a partnership in a distil- Oh. St. 439; Winslow v. ,Chififelle,
lery, as to whether six hundred Harp. (S. Ca.) Eq. 35. See Newton v.
acres of land bought with' partner- Doran, 3 Grant's Ch. (Up. Can.) 353.
ship funds, and conveyed to the part- 3 Ballantine v. Frelinghuysen, 38
ners as tenants in common and used N. J. Eq. 266 ; Lane v. Tyler, 49 Me.
to raise corn for the distillery, was 353, 353. That it may be considered
individual or partnership property, as partnership property to the extent
it is held that the land was an incident of the value of the improvements,

278

REAL ESTATE. § 284.

merely using his land without paying hini for it, or giving
him a credit on the books, would not show such intention,'
or making mere temporary improvements on land held in
common with partners, as against written references by and
between the partners to the land as held in common.'' Or
paying incidentally a single instalment of purchase money
out of partnership funds on a prior contract on separate ac-
count gives no right except to reimbursement.'

§283. taken for debt. — Real estate taken by part-
ners in satisfaction of a debt, or I'eceived in the collection of
a claim, or purchased on foreclosure of a mortgage securing
a partnership debt, is deemed to be partnership property, .
and held in the proportion of their interest in the firm, in
the absence of evidence showing a conversion of it into sepa-
rate property.*

% 384. Books show intention. — But if purchased by one
partner in his own name, with partnership funds, and a
charge against him is made on the ledger for its reasonable
value, this shows a conversion into individual property;* or

Kendall v. Rider, 35 Barb. 100 ; that using partnership funds in im-

Averill v. Loucks, 6 Barb. 19, 470 ; proving it was equivalent merely

King V. Wilcomib, 7 Barb. 263. A to dividing and converting so much

lease by one pai'tner to the firm, and assets into separate property. And

improvements by them, makes dis- see Deloney v. HutCheson, 2 Rand,

tinct interests, and a mortgage by the ("Va. ) 183, 187.

lessor would not cover the firm's in- * Putnam v. Dobbins, 38 111. 394 ;

terest. Kerr v. Kingsbury, 39 Mich. Moran v. Palmer, 13 Mich. 368; Mor-

150. gan V. Olvey, 53 Ind. 6; Paton v.

. iBallantinev. Frelinghuysen, Baker, 62 Iowa, 704 ; Flanagan v.

supra;' Chamberlin v. Chamberlin, Shuck, 83 Ky. 617 ; Whitney v. Cot-

13 J. & Sp. (N. Y.) 116. ten, 53 Miss. 689 ; Morrison v. Menden-

2Frink v. Branch, 16 Conn. 360; hall, 18 Minn. 232; Buchanw. Sumner,

Robertson v. Corsett, 39 Mich. 777. 2 Barb. Ch. 165 ; Leinsinring v. Black,

» Wheatley v. Calhoun, 13 Leigh 5 Watts, 303 ; Collumb v. Read, 34 N.
(Va.), 364 (37 Am. Dec. 654). In Y. 505 ; Smith v. Ramsey, 6 111. 373.
Parker v. Bowles, 57 N. H. 491, it 5 Homer v. Homer, 107 Mass. 82;
was held that property not purchased Collumb u. Read, 34 N. Y. 505, 511;
with partnership funds, and there- Fairchild v. Fairchild, 64 N. Y. 471
fore held as tenants in common, (aff. 5 Hun, 407); Bergeron v. Rich-
could not be turned into partnership ardott, 55 Wis. 139; HaVvey v.
property by oral agreement, and Pennypacker, 4 Del. Ch. 445. And

279

§ 285. CONDUCT OF THE BUSINESS.

if being owned by liim it is credited to Him on the books,
this shows it is partnership property;^ or if the other part-
ner had half the cost charged against him on the books. ^
If bought with partnership funds, but is used for residences
of the-partners, but is treated as partnership property on
the books, it will be so regarded, though the dwellings were
built at individual expense, but the property was undivided.'
If bought on the credit of the firm, with funds raised by its
notes, with the intention of using it fot the firm's business,
which was never done, and the expense of discounting the
note and its payment and the taxes, are bharged against
one partner, it is his property, the credit of the firm being
loaned to him for the purpose, and profits on a resale are
therefore his.*

If the deed described the parties as partners this justifies
the inference that the land is partnership property.*

§ 285. Use of funds not conclusive. — The mere fact that
partnership funds have gone into a purchase of real estate
is very inconclusive as to the intention of the partners, for
they may have desired to make an investment of surplus
funds. It might be supposed that in the absence of evi-
dence of intention the legal estate would control, and the
grantees hold as tenants in common and not as partners;
yet this cannot be safely affirmed in view of the authorities.
All the circumstances must be looked to, such as the man-
ner of treating the pui'chase on the books, the use of the

see Ex parte McKenna, 3 De G. F. & SQffutt v. Scott, 47 Ala. 104, 126.

J. 659 ; Smith v. Smith, 5 Ves. 189 ; If land is bought with the joint

Leinsinring v. Black, 5 Watts, 303. funds, in the name of one partner.

Contra, if the books show no light who afterwards died, the presenta-

on the intention. King v. Weeks, tion by the surviving partner of a

70 N. Ca. 372. claim for his advances in the pur-

1 Eobinson v. Ashton, L. R 20 Eq. chase of the property against the
25. estate of the decedent does not estoj)

2 Collins V. Charlestown Mut. F. him to withdraw, and claim the prop-
Ins. Co. 10 Gray, 155. erty to be joint, where presentation

5 Ex parte McKenna, 3 DeG. F. & was not intended as an abandonment
J. 645. of it as such. Way v. Stebbins, 47

* Hay's Appeal, 91 Pa. St. 265. Mich. 269.|

280

REAL ESTATE. § 288.

property, who collected the rents, paid insurance or taxes;
yet none of these are alone conclusive.'

If the use were conclusive of the question, the land might
be real estate at one time and personalty at another. The use
is not the test, but is only evidence of the intention of the
■ parties, which is the test. ^

If such purchase was within the usual scope of the part-
nership business, as where the partnership are- dealers or
speculators in land, the purchase with partnership funds,
would no doubt be deemed as partnership property unless
the contrary were shown.'

§ 286. use of property not conclusive.— If payment

of purchase money out of joint fund is alode weak evidence
of intent to hold the property as joint, the mere use made
of property is, alone, still weaker. Thus, that a single part-
ner devotes his individual property to the business does not
make it partnership property.^ So, if the property belonged

1 Phillips V. Phillips, 1 Myl. & K. 2 Holmes v. Self, 79 Ky. 297 ; Hatch-

649; Hanson v. Eustace, ^ How. ett «. Blanton, 72 Ala. 431 ; Sumner ■«.

653; Hanks i;. Hinson, 4 Porter (Ala,), Hampson, 8 Oh. 328; 33 Am. Dec.

509; "Wood v. Montgomery, 60 Ala. 723; Fall Eiver Whaling Co. v.

SOO; Brewer w. Browne, 68 id. 210; Borden, 10 Cush. 458, 46i-3. That

Hatchett v. Blanton, 73 id. 423 ; the method of charging it upon the

McGaire v. Ramsey, 9 Ark. 518; books will control the use, see Ex

Tillotson V. Tillotson, 34 Conn. 335 ; parte McKehna, 3 DeG. F. & J. 645.

Price V. Hicks,' 14 Fla. 565 ; Matlock s gee Johnson v. Clark, 18 Kan.

V. Matlock, 5 Ind. 403 ; Indiana Pot- 157 ; Converse v. Citizens! Mut. Ins.'

tery Co. v.' Bates, 14 id. ■ 8; Morgan Co. 10 Cush. 37 ; Sumner v. Hamp-

V. Olvey, 53 id. 6 ; Buck v. Winn, 11 son, 8 Oh. 338 ; 33 Am. Dec. 723 ;

B. Mon. 330; Dyer v. Cfark, 5 Met. Wooldridge v. Wilkins,' 3 How.

563, 579; 39 Am. Dec. 697; Richards (Miss.) 360; Pugh v. Currie, 5 Ala.

V. Manson, 101 Mass. 483, 484-5; 446; Allen v. Withrow, 110 U. S.

Smith V. Jackson, 3 Edw. Ch. 38; 119, 130. Declarations of the part-

Collumb V. Re9,d, 34 N. T. 505, 511; ners that land is partnership prop-

Tarbel v. Bradley, 7 Abb. New Cas. erty is evidence of the fact. Rust v.

373; Baird v. Baird, 1 Dev. & Bat. Cliisholm; 57 Md. 376. So is pay-

(N. Ca.) Eq. 524; King v. Weekfe, 70 ment of mortgages upon it from

N. Ca.; 372; Ross v. Henderson, 77 id. partnership funds, and this may be

170 ; Lefevre's Appeal, 69 Pa. St. shown without producing the mort-

133; 8 Am. ^ep. 339; Providence i;. gages. Fairchild v. Fairchild, 64 N.

Bullock, 14 R. I. 353; Gaines v. Y. 471, 480 (aff. 5 Hun, 407).

Catron, 1 Humph. (Tenn.) 514. ^Burdon v. Barkus, 4 DeG. F. & J.

281

§ 287. CONDUCT OF THE BUSINESS.

to or was furnished by all the partners as tenants in com-
mon, using it for partnership purposes, as carrying on the
business upon it, does not impress upon it the character of
partnership property.'

Thns, if two persons are tenants in common of a colliery and
work it in partnership, this, as distinguished from acquiring it for
such purpose, does not make it partnership property.'

In Gordon v. Gordon, 49 Mich. 501, two of three partners in
farming owned the farm, and the articles of partnership gave the
third partner a right to a conveyance of one-third of the farm on
payment of one-third of the cost; and it was held that the farm was
not partnership property hefore such payment, and hence the lien
of a mortgagee of the share of one was good against the claim of
the other partners for advances, and that, in a suit for an account-
ing between the partners, the land could not be considered.

In Deloney v. Hutcheson, 2 Rand. 183, an allegation that partners
bought land on which their store was situated and held it as joint
stock, but not averring that it was bought with partnership funds,
was held consistent with payment by each of his proportion out of
his separate funds, and was not, therefore, sufficient.

Taking insurance in the firm name is evidence, but not con-
clusive.' Payment of taxes by the firm, and charging them to the
individual account of the partner who owned the land, is of course
evidence.*

§ 287. Co-owners going into business on their land. — But

if two co-owners of land subsequently go into partnership

43; Waithman u Miles, 1 Stark. 181; 2 Crawshay v. Maule, 1 Swanst.

Colnaghi v. Bluck, 8 C. & P. 464; 495, 518, 523.

Rapier v. Gulf City Paper Co. 64 Ala. 3 Hogle v. Lowe, 13 Nev. S86.

330 ; Goepper v. Kinsinger, 39 Oh. St. * Goepper v. Kinsinger, 39 Oh. St.

439; Chamberlin v. Chamberlin, 13 439,443. And see Hay's Appeal, 91

J. & Sp. (N. Y.) 116. Pa. St. 365. Statements of some of

1 Ware v. Owens, 43 Ala. 413 ; Grif- the partners that it is partnership

fie V. Maxey, 58 Tex. 310; Theriot v. property were admitted in Winslow

Michel, 38 La. Ann. 107 ; Eeynolds v. v. ChifEelle, Harp. (S. Ca.) Eq. 35, but

Ruckman. 35 Mich. 80; Gordon v. held to be mere opinion, especially

Gordon, 49 id. 501 ; Hogle v. Lowe, 13 where another, by mortgaging his

Nev. 386; Deloney v. Hutcheson, 3 share, has treated it otherwise, in

Rand. (Va.) 183; Moody v. Eathburn, Hogle v. Lowe, 13 Nev. 386.
7 Minn. 89.

EEAL ESTATE. § 287.

in a business carried on upon the land, this is not sufficient
to make them partners as to the real estate.

Thus, where two bought land jointly, and one, with the other's
consent, put a building upon it, the fact that they became partners
in carrying on a boarding-house therein will not prevent one from
suing the other for half the cost of the land and house.'

Where A. sold to B. and C. the undivided two-thirds of real estate
owii(^d by him, under agreement to go into partnership with them
in a livery-stable and saw-mill business upon the land, and the part-
nership was formed, this is not of itself sufficient to convert the
land into stock; hence it can be partitioned before the partnership
is wound up."

Two owners of a still-house were partners in the business carried
on therein; this is not sufficient to show a partnership in the prop-
erty ; hence, if they sold it and one receives all the purchase money,
thp other can sue him at law for his share.'

In Wheatley v. Coihoun, 12 Leigh (Va.), 264 (37 Am. Dec. 654),
it was said that real estate of milling, mining or farming partner-
ships is not deemed part of the stock, unless the intent is distinctly
manifested; hence the widow of one of a milling partnership was
held dowable in his moiety.^

If a person carrying on a business by himself upon his
own land devises the land to his children, together with his
business, which they continue, the land may or may not be
partnership property. If the land is "substantially in-
volved " in the business, as it is where a nurseryman devises
the land and business to this children, who continue, it is
partnership property.^ Yet even where the land so devised
is held as tenants in common and not as partnership prop-
erty, new land purchased with the profits or earnings of the
firm is partnership property. ^ In fact, whatever is purchased
with the funds or profits of a business is presumptively part-

1 Sikes V. Work, 6 Gray, 433. in partnership are not partners in

2 Alexander v. Kimbro, 49 Miss, the land. Pecot v. Ai'melin, 31 La.
5>9. Ann. 667.

3 Coles V. Coles, 15 Johns. 159 ; 8 5 Waterer v. Waterer, L. R. 15 Eq.
Am. Dec. 331. 403, per James, L. J.

< Heirs buying lands at a sale of 6 But see Stewards. Blakeway, L.
the estate and subsequently planting R. 4 Ch. App. 603.

383

§ 289. CONDUCT OF THE BUSINESS.

nership property, although in the name of one partner,
whether it be land' or even other property, as railroad stock,
if bought on account of the firm, though without authority.^

§ 288. Incoming partners. — Where three partners owning
land took in a fourth partner, and thereupon deeded the land to the
four, the court said that whether a deed in which the grantors
were also grante'fes changed the character of the property it oper-
ated as a grant of an undivided one-quarter from each to the new
partner.'

Where a firm of two partners, owning land in which the busi-
ness was carried on as partnership property, took in a new partner
and the new firm paid rent to the two original partners, the prop-
erty thereupon ceased to be partnership property and became real
estate.'' If the new firm, composed of the original partners with a
new partner, simply use the property, it does not become the prop-
erty of the new firm, not having been paid for by their funds.*
But if it was put into the new firm as part of the capital contrib-
uted by the original partners, it becomes partnership property of
the new firm.'

If partnership real estate is sold the presumption is that the
purchase money has gone to the use of the firm; hence, a mort-
gage back to secure the purchase money is partnership property.'
And if such real estate is in the name of one of three partners, and
upon dissolution he conyeys to another partner the part represent-
ing his interest, this will be deemed a conversion of the whole into
separate property and not of an undivided part only; hence he
holds the rest for himself and part for the third partner as tenants
in common of the equitable title.'

§ 289. Pennsylvania rule. — In Pennsylvania, the usual rules
as to the conversion of real estate of a partnership into personalty

1 Ex parte McKenna, 3 DeG. F. & 56 Am. Dec. 252 ; Bergeron v. Eich-
J. 645 ; Merot v. Burnand, 4 Euss. ardott, 55 Wis. 129 ; Marsh v. Davis,
247 ; 2 Bli. N. S. 315. 33 Kan. 336. And the statute of

* Ex parte Hinds, 3 DeG. & Sm. frauds does not apply whether the
613 ; and supra, % 361. real estate was put into the new firm

8 McFarland v. Chase, 7 Gray, 463 ; at its formation or subsequently pur-
such a deed is perfectly good Henry, chased, the title being in the names
V. Anderson, 77 Ind. 361. of the original partners. Marsh v.

*Eowley v. Adams, 8 Jur. 994. Davis, 33 Kan. 336.

»Hatchett v. Blanton, 73 Ala. 433. 'Lincoln v. White, 30 Me. 291.

'Andrews v. Brown, 21 Ala. 437; 8 Smith v. Eamsey, 6 111. 373.

284

REAL ESTATE. § 290.

apply as between the partners, but as to strangers tlie evidence or
fact of such, conversion must appear in writing and be recorded,
otherwise they are not bound by it; "hence a judgment against one
partner, or a inortgage by him on his undivided share, in the ab-
sence of such record is a lien on his moiety, superior to the equi-
ties of his copartners or the priority of partnership creditors on
distribution. The cases in Pennsylvania are very numerous; the.
following are but a part of them.' ' ' '

§ 290. Consequences of conversion — Heirship — Dower. —

To the extent in virhich real estate is converted into partner-
ship stock, all the incidents attach to it which belong to any
other stock, in so far as is consistent with the technical rules
of conveyancing; for example, each partner has a lien upon
the real estate, not only for the payment of creditors, hut
also for advances made by him, and for his share of surplus
on winding up, prior to all claim of separate creditors, or
incumbrancers of other partners, the same as in case of per-
sonal property.'
If the partner dies there can be no dower, or inheritance,

1 Shafer'B Appeal, 106 Pa. St. 49 ; 83 ; Pennypacker v. Leary, 65 id. 320 ;
Kepler V. Erie Dime Sav. & Loan Co. Thrall v. Crampton, 9 Ben. 218; 16
101 id. 603; Du Bree v. Albert, 100 Bankr. Reg. 361; Duryea d. Burt, 28
id. 483; Holt's Appeal, 98 id. 357; Cal. 569; Divine v. Mitchum, 4 B.
Black's Appeal, 89 id. 201 ; Geddes' Men. 488 (41 Am. Dec. 341) ; Hewitt
Appeal, 84 id. 483; Appeal of Second v. Sturdevant, 11 id. 453, 459; Bryant
Nat'l Bk. 88 id. 203; Fosters. Barnes, v. Hunter, 6 Bush, 75; Spalding v.
Slid. 377; Foster's Appeal, 74 id. 391; Wilson, 80 Ky. .589; Bm-leigh v.
15 Am. Rep. 553; 3 Am. Law Reo. White, 70 Me. 130; Dyer v. Clark, 5
230;Meilyv. Wood, 71 id. 488; 10 Met. 563; 39 Am. Deo. 697; Howards.
Am. Rep. 719 ; Jones' Appeal, 70 id. Priest, 5 id. 583 ; Fall River Whaling
169; Ebbert's Appeal, 70 id. 79; Co. v. Borden, 10 Cush. 458, 461 ; Ar-
Lefevre's Appeal, 69 i^. 133 ; 8 Am. nold v. Wainwright, 6 Minn. 358 ;
Rep. 329; McDermot v. Laurence, 7 Dilworth v. Ma'yfield, 36 Miss. 40;
S. & R. 438; 10 Am. Dec. 468; Hale Whitney v. Cotten, 53 id. 689; Priest
V. Henrie, 3 Watts, 143 ; 37 Am. Dec. v. Chouteau, 85 Mo. 398 ; Hiscock v.
389. Phelps, 49 N. Y. 97; Tarbel v. Prad-

^ This is sufiSciently obvious from ley, 7 Abb. New Cas. 373; Menden-
the rest of this chapter; neverthe- hallu Benbow, 84N. Ca. 646; Boyers
less, it was specifically ruled in these v. Elliott, 7 Humph. 204; Williams
cases. Taylor v. Farmer (111.), 4 N. v. Love, 3 Head, 80; Jones v. Jones,
E. Rep. 370 ; Roberts v. McCarty, 9 9 Lea, 627 ; Diggs v. Brown, 78 Va.
Ind. 16; Evans v. Hawley, 35 Iowa, 293.

385

§ 290. CONDUCT OF THE BUSINESS.

or distributive share claimed; the real estate or its proceeds
until creditors are paid and copartners' claims adjusted, and
dispositions of partnership real estate, whether before or
after the death of a partner, are free from any incumbrance
of inchoate dower, whether the sale be by the act of the
partners, or on foreclosure, or under execution, or by an
assignee in insolvency, or a receiver in winding up, or by
a surviving partner. And whether the title be in all the
partners or some of them, or solely in the husband of the
claimant, is wholly immaterial.' If, under the jurisprudence
of any state, dower is a legal, and not an equitable, estate,
so that a legal title would devolve upon the widow, she would
hold such title in trust for the purposes of the partnership.

1 Andrews v. Brown, 31 Ala. 437, Rep. 381 ; Conger v. Piatt, 35 Up.

443; 56 Am. Dec. 353; Loubat v. Can. Q. B, 377; Wylie v. Wylie, 4

Nourse, 5 Fla. 850; Price v. Hicks, Grant's Ch. (Up. Can.) 378; Sanborn

14 id. 565; Bopp v. Fox, 63 111. 540; v. Sanborn, 11 id. 859. Hence the
Simpson v. Leech, 86 111. 386; Trow- wife of a partner need not join in a
bridges. Cross, 117 id. 109; Matlock mortgage made by the firm, and is
V. Matlock, 5 Ind. 403; Hale v. not a necessary party to its fore-
Plummer, 6 id. 131 ; Huston v. Neil, closure. Huston v. Neil, 41 Ind. 504.
41 id. 504 ; Grissom v. Moore, 106 But in a suit in which the question
Ind. 396 ; Paige v. Paige (Iowa), 83 of whether land is partnership prop-
N. W. Rep. 360 ; Galbraith v. Gedge, erty or not is to be decided, a wife
16 B. Men. 680 ; Goodburn v. Stevens, of one of the partners, claiming the
1 Md. Ch. 420; Dyer v. Clark, 5 Met. property as homestead, is a neces-
.■563; 39 Am. Dec. 697; Burnside v. sary partyl Rhodes v. Williams, 13
Merrick, 4 id. 537, 544; Wooldridge Nev. 30. The subsequent taking in
V. Wilkins, 3 How. (Miss.) 360; Rob- of a partner by a man owning land,
ershaw v. Hanway, 53 Miss. 718; and conveying the property to the
Collins V. Warren, 39 Mo. 236 ; Wil- firm, does not divest inchoate dower,
let V. Brown, 65 id. 188; 37 Am. and if she join in conveying half to
Rep. 365 ; Uhler v. Sernple, 30 N. J. the other partner, her inchoate
Eq. 388; Stroud v. Stroud, Phil. (N. dower in the other half remains.
Ca.) L. 535; Greene v. Greene, 1 Oh. Grissom v. Moore, 106 Ind. 296. But
585; 13 Am. Dec. 643; Sumner v, as to land which is partnership prop-
Hampson, 8 id. 328 ; 33 Am. Dec. erty for the purposes of the partner-
722 ; Foster's Appeal, 74 Pa. St. 391 ; ship, a subsequent out and out con-

15 Am. Rep. 553; 8 Am. Law Rec. version of it into personalty does
330 ; Richardson v. Wyatt, 3 Desaus, not need the consent of the wife.
(S. Ca.) 471 ; Williamson v. Fontain, West Hickory Min. Ass'n v. Eeed^
7 Baxter, 313; Martin v. Smith, 35 80 Pa. St. 38, 50.

W. Va. 579; In re Ransom, 17 Fed.

386

REAL ESTATE. § 291.

§291. sales and incumbrances of share.— ^ Hence,

where one partner for his own benefit, and under the appear-
ance of being tenant in common, sells or mortgages an un-
divided share in the property, or, if he has the whole title, he
or his heirs seU or mortgage the whole, the vendee or mort-
gagee, unless he can claim as a bona fide buyer without
notice that it is partnership property, can only obtain the
partner's interest, which is his proportion in the surplus
after payment of all debts, both prior and subsequent, in-
cluding the claims of the other partners; ^ but if he is such
hona fide buyer without notice he is protected.*

1 §§ 180, 185. ker, 16 Grant's Ch. (Up. Can.) 330.

2 Cavander v. Bulteel, L. R. 9 Ch. In Cottle v. Harrold, 73 Ga. 830, a
App. 79; Hoxie v. Carr, 1 Sumner, mortgage by four but of five part-
0. C. 173 ; Frink v. Branch, 16 Conn, ners was held to convey the title of
260 ; Sigourney v. Munn, 7 Conn, the four ; but this is not consistent
334 ; Dupuy v. Leavenworth, 17 Cal. with the above. It seems to have
363; Duryea v. Burt, 38 id. 569; been thought in Hogle v. Lowe, 113
McNeil V. Congregational Soo. 66 id. Nev. 286, that a mortgagee of oho
105; Reeves v. Ayers, 38 111. 418; partner with notice took subject
Whitney v. Gotten, 53 Miss. 689 ; only to existing and not to subse-
Divine v. Mitchum, 4 B. Mon. 488 quent partnership debts. This is not
(41 Am. Dec. 341); Churchill «. Proc- elsewhere the law. See § 185. In
tor, 31 Minn, 139; Buck v. Winn, 11 Van Brunt v. Applegate, 44 N. Y.
B. Mon. 320; Flanagan v. Shuck; 83 544, it was held that a conveyance
Ky. 617 ; Arnold v. Wainwright, 6 of his moiety by one partner, in pay-
Minn. 358; Priest V. Chouteau, 85 ment of a partnership debt, vested a
Mo. 398; 12 Mo. App. 253; Crow v. good title to the moiety in the'
Drace, 61 Mo. 235; Cowdenw Cairns, grantee, and that the grantee did
28 id. 471; Hogle v. Lowe, 12, Nev. not become a trustee for the firm.
386; MesserlJ. Messer, 59 N. H. 375; Two judges dissented, and the case
Matlack v. Janies, 13 N. J. Eq. 126 ; is perhaps doubted, in Staats v.
Van Brunt v. Applegate, 44 N. Y. Bristow, 73 N. Y. 264. And so if one
544; Hiscock v. Phelps, 49 N. Y. 97 holds the entire title, a mortgage by
(below, 2 Lans. 106); Tarbel v. Brad- him, the proceeds of which went to
ley, 7 Abb. New Cas. 273; Ross v. pay partnership debts, was deemed
Henderson, 77 N. Ca. 170 ; Miller v. authorized by all, from then- having
Proctor, 20 Oh. St. 443, 448 ; Bank v. allowed the title to remain in him
Sawyer, 88 Oh. St. 339 ; Tillinghast alone. Chittenden v. (jerman Amer.
V. Champlin, 4 R, I. 173 ; Boyers v. Bk. 37 Minn. 143. Where the title
Elliott, 7 Humph. 304 ; Fowler v. of real estate of W., B. and C. was
Bailley, 14 Wis. 135; Bergeron v. in W., B.'s mortgage of his interest
Richardott, 55 id. 139 ; Mason v. Par- is not an incumbrance as against a

287

§ 292. CONDUCT OF THE BUSINESS.

Such incumbrance imposes no actual lien upon the prop-
erty, as against a subsequent buyer of the interest of the
entire firm for partnership purposes, whether before or after
dissolution;^ though it may be enforced as a priority upon
the debtor's surplus, if any is left for him.

Thus a judgment against one partner for his individual debt is,
after all creditors are paid, and it only remains to make settlement
between the partners, a lien to the extent of his surplus in land, so
that a subsequent mortgage by him on his share is postponed to it.'

The doctrines which apply to the levy of an execution on
the interest of a single party, at the suit of his individual
creditor, apply to a levy by such creditor on the real estate,
whether the title be in the debtor alone or in common. '

§ a 92. The legal title — Conreyances of it. — Keal estate
converted into personalty is so only in equity and not in
law, and a conveyance or mortgage, if in a court of law, is
neither a transfer of personalty nor a chattel mortgage, but
is governed by the statutes applicable to conveyancing of real
estate.* And so a judgment against the firm is a lien upon
real estate held in the names of the partners.'

corporation into which the firm was Ensign .v. Briggs, 6 Gray, 329 ; Col-
turned, the members receiving stock lins v. Warren, 39 Mo. 236; Blake i;.
for their shares. Tarbell v. West, 86 Nutter, 19 Me. 16: Cowdenw. Cairns,
N. Y. 280. In Jones u Neale, 2 Patt. 28 Mo. 471 ; Lang v. Waring, 17 Ala.

6 H. (Va.) 339, a conveyance by one 145 ; s. C. 25 id. 625 ; Caldwell v.
partner of real estate in trust, to se- Parmer, 56 id. 405. As to judgment
cure a partnership creditor, was held liens, see Foster v. Barnes, 81 Pa. St.
to pass good title to an undivided .377; Lauff er u. Cavett, 87 Pa. St. 479 ;
moiety, hoth in law and equity, giv- Stadler v. Allen, 44 Iowa, 198; and
ing the creditor priority over ofher • Bank of Louisville v. Hall, 8 Bush,
joint creditors. Contra, had it been 672. See, also, Averill v. Loucks, 6
to secure a private creditor. Barb. 19, 470.

1 See § 186 and Tarbel v. Bradley, < Lawrence v. Taylor, 5 Hill, 107 ;

7 Abb. NewCas. 273; Bank d. Saw- Miller v. Proctor, 20 Oh. St. 443, 448 ;
yer, 38 Oh. St. 338. But see Tread- Piatt v. Oliver, 3 McLean, 87 (aflE'd
well !/•. Williams, 9 Bosw. 649. on other grounds, 3 How. 333);

2 Hewitt V. Rankin, 41 Iowa, 35 ; Moreau v. Saflfarans, 3 Sneed, 595.
Johnson v. Rogers, 15 Bank. Reg. 1. 5 jje Codding, 9 Fed. Rep. 849. And

3 Page V. Thomas, 43 Oh. St. 38 ; see Overholt's Appeal, 12 Pa. St. 332 ;
Bryant v. Hunter, 6 Bush, 75 ; Erwi^i's Appeal, 39 id. 535.
McCauley v. Fulton, 44 Cal. 355;

288

REAL ESTATE. § 292.

Where an individual partner conveys the property, using
the names of all in a proper legal instrument which pur-
ports to be the act of each, the instrument satisfies the law,
leaving only the question of his authority open, and such
authority, even where seals are necessary, may be granted
by parol or ratified by subsequent parol assent, and both
authority and assent may be implied from, circumstances.
This has been more fully shown in treating of the power to
seal.^ The cases referring to real estate alone are those in
the note.^

la Sage v. Sherman, 2 N. Y. 417, 432, Strong, J., says: "I see
no reason why a valid general power for each to execute deeds as
attorney for the others might not be inserted in the articles of
partnership. The trust would not be greater nor more liable to
abuse than that which now exists in relation to the disposition of
personal property." Such a power may undoubtedly be so granted,
but the objection to granting it is that the grant of power ought
to appear of record for the protection of the grantee.

In Morrison v. Mendenhall, 18 Minn. 232, the articles of a part-
nership formed to loan money and buy and sell real estate pro-
vided that the business was to be transacted -by S., one of the
partners, and this was held sufficient to authorize S. to assign the
mortgage made to the partners, which act requires a seal in that
state. None of the partners, however, were contesting the act;
the ruling related to the assignee's title in a foreclosure suit.

In Napier v. Catron, 2 Humph. 534, 536, it was queried whether
a grant of power to bind the firm by deed was authority as to land
owned as tenants in common before the partnership was formed.

1 §§ 416, 417. of a sealed agreement to sell signed

2 Lawrence v. Taylor, 5 Hill,- 107; by one with assent of all. Moranu

Smith V. Kerr, 3 N. Y. 144; Hoi- Palmer, 13 Mich. 368, where the

brook V. Chamberlin, 116 Mass. 155, partner conveyed in his own name

and cases cited; Haynes v. Sea- alone, but put the proceeds into the

chrest, 13 Iowa, 455 ; Herbert v. Han- firm. But an acknowledgment by

rick, 16 Ala. 581; Grady v. Robinson, one for both before a notary is void,

28 id. 389; Gunter v. Williams, 40 Lemmon v. Hutchins, 1 Ohio C. C.

id. 561 ; Peine v. Weber, 47 111. 41 ; 388, 391. But see Wilson v. Hunter,

Stroman v. Varn, 19 S. Ca. 307. And 14 Wis. 683.
see Darst v. Roth, 4 Wash. C. C.'471,

Vol. I — 19 389

§ 294. CONDUCT OF THE BUSINESS.

This depends, of course, on whether it was made partnership prop-
erty.

§ 293. same in case of death. — Although -partner-
ship real estate is devoted to pay debts, including the claims
of creditor partners, and is considered personalty for that
purpose, the devolution of the title in case of death is gov-
erned by the legal rules applicable to real estate, and if
wholly or partly in one partner descends pro tanto upon his
heirs in trust for the settlement of the partnership. In
other words, the juS~uccrescendi applicable to personal estate
does not apply to the legal title of realty to place the title
in the surviving partner.'

§ 294. — — surviving partner aided Iby equity. — The

surviving partner, therefore, in exercising his right to sell
the property in order to wind up the concern and pay the
debts, though he can convey only his own interest in the
legal title, can sell the entire beneficial interest, and a court
of equity, at the suit of the grantee, will compel the widow
and heirs to convey their legal title to him.^

' See, for example, Pugh v. Currie, an action to recover damages as
5 Ala. 446; Andrews v. Brown, 21 against a railroad for the value of
id. 437 (56 Am. Dec. 253); Caldwell partnership land upon which the
V. Parmer, 56 id. 405 ; Aberuathy v. road is located must be brought in
Moses, 73 id. 381; Percit'uU v. Piatt, the name of the heirs and surviving
36 Ark. 456; McNeil v. Congrega- partner jointly if the legal title is in
tional Soc. 66 Cal. 105; Loubat v. them jointly. Whitman v. Boston
Nourse, 5 Fla. 350; Price v. Hicks, & Maine E. R. 3 Allen, 138. So of
14 id. 565 ; Cobble v. Tomlinson, 50 ejectment ; the holders of the legal
Ind. 550; Galbraith v. Gedge, 16 B. title, and not the surviving, partner
Mon. 630 ; Buffum v. Buffum, 49 as such, can maintain it. Percifull
Me. 108; Dyer v. Clark, 5 Met. 563 v. Piatt, 36 Ark. 456.
(39 Am. Dec. 697) : Howard u. Priest, « Shanks v. Klein, 104 U. S. 18;
id. 583; Whitman v. Boston & Me. Burnside v. Merrick, 4 Met. 537;
R. R. 3 Allen, 133 ; Merritt v. Dickey, Dyer v. Clark, 5 Met. 563 ; Howard v.
38 Mich. 41; Dilworth v. Mayfield, Priest, 5 Met. 583;-Keith v. Keith,
86 Miss. 40 ; Whitney v. Gotten, 53 143 Mass. 263 ; Tillinghast v. Champ-
id. 689; Buohan v. Sumner, 3 Barb, lin, 4 R. I. 173; Pugh v. Currie, 5
Ch. 165; King v. Weeks, 70 N. Ca. Ala. 446; Andrews v. Brown, 31 id.
372; Pierce u. Trigg, 10 Leigh (Va.), 487; 56 Am. Dec. 253; Murphy v.
406, and cases under §390. Hence, Abrams, 50 id. 393; Dupuy v. Leav-

290

REAL ESTATE. § 294.

Unless tlie price was grossly inadequate and there was probably
some collusion/ or the sale was not made for the purpose of wind-
ing up, nor as surviving partner;' and the decree need not give the
minor heirs a day after coming of age to show cause against the
decree.'

If the partners only have an equity and not a legal title, pro-
ceedings to subject it need only be against the surviving partner.*

Where a surviving partner, with the consent of the administra-
trix, continued the business and invested partnership funds in real
estate, and afterwards took in the minor heirs as partners, and later
the partnership was converted into a corporation, and stock was
given the minor heirs represented by their guardians for their in-
terest, and the corporation became insolvent and assigned for ben-
efit of creditors, the assignee was held entitled to obtain a decree
releasing the title of the minor heirs in the real estate, it being
personal property, for payment of debts."

So, in case of death, the surviving partner was held entitled to a
similar decree,' and so was an execution creditor.'

en worth, 17 Cal. 263; Galbraith v. ^McCaskill v. Lancashire, 83 N.

Gedge, 16 B. Mon. 630; Dilworth v. Ca. 393.

Mayfleld, 86 Miss. 40; Whitney v. sSprague Mfg. Co. v. Hoyt, 39

Gotten, 53 id. 689; Matthews u'Hun- Fed. Rep. 431; Francklynu Sprague,

ter, 67 Mo. 393 ; Easton v. Court- 131 U. S. 215.

Wright, 84 id. 37 ; Griffey v. North- « Gray v. Palmer, 9 Cal. 616. And

cutt, 5 Heisk. 746 ; Pierce v. Trigg, see Hanway v. Rbbertshaw, 49 Miss.

10 Leigh (Va.), 406; Conger v. Piatt, 758. In Gray v. Palmer, 9 Cal. 616,

25 Up. Can. Q. B. 377. it seems that the surviving partner

1 Lang V. Waring, 35 Ala. 635 ; 60 was allowed to file a bill against the
Am. Dec. 533. administrator and heirs to get pos-

2 McNeil V. Congregational Soc. 66 session of real estate held in the de-
Cal. 105; Martin v. Morris, 63 Wis. 418. cedent's name, in order to pay debts

'Creath «. Smith, 30 Mo. 113. It and for partition of the balance. No

has also been held that in the ab- presentation for allowance to the ad-

sence of a necessity for sa^e, as if ministrator is necessary,
there are no debts, the heirs could t Scruggs v. Blair, 44 Miss. 406, 413.

retain. the title undisturbed and the Some cases have held that the right

land would be divided, in Way v. of the surviving partner to resort to

Stebbins, 47 Mich. 296 ; Lang v. War- the real estate is limited by the ne-

ing, 35 Ala. 625 ; 60 Am. Dec. 533 ; cessity of so doing, that is, the per-

Buchan v. Sumner. 2 Barb. Ch. 165, sonal property proper must be first

206. And see Strong v. Lord, 107 111. resorted to and exhausted. Easton

25; and Godfrey v. White, 43 Mich. v. Courtwright, 84 Mo. 27; Stroud v.

171; but see §974. Stroud, Phil. (N. Ca.) L. 525; Fos-

291

§ 295. CONDUCT OF THE BUSINES^.

Where the administrator of the deceased partner brought pro-
ceedings to sell real estate of which the decedent held the title, and
under a decree of the probate court the property was sold, the
surviving partner, if he consented to such sale, may compel the
administrator to account to him for the purchase money.' If a
trustee under the will of a partner has the legal title, and in con-
junction with the surviving partner sells the property, a valid title
is conveyed.''

Where different tracts of land were bought in the name of differ-
ent partners, their recovery against administrators and heirs can-
not be obtained in the same suit, since the heirs of some of the
defendants would have a title and interest in some of the lands, and
others in others.'

§ 295. Notice to third persons. — The foregoing doctrines
raise the very important question of what is notice of the
partnership equities to one receiving title to a share of the
real estate from or through a single partner, for if without
notice of the partnership equities he acquires a good title.
A brief notice of all the partnership cases upon this question
will be given. ^

' A recital in a deed that the conveyance is to S. and M., partners as
S. & Co., or other similar description, is sufficient to put a mort-

ter's Appeal, 74 Pa. St. 391,396; 3 263; Reeves v. Ayers, 38 111. 418;
Am. Law Eec. 330 ; 15 Am. Eep. 553. Hiscook v. Phelps, 49 N. Y. 97 (2
But this is contrary to the principle Lans.^105); Miller v. Proctor, 20 Oh.
that winding up will not be by piece- St. 443, 448 ; Mason v. Parker, 16
meal, therefore these cases are anom- Grant's Ch. (Up. Can.), 330, and
alous, §§ 974-977. And contra in cases cited in the succeeding notes.
Tennessee by statute. Contra in N. Ca. Ross v. Henderson,
IDyer v. Clark, 5 Met. 563; 89 Am. 77 N. Ca. 170. But a mortgagee for
Dec. 697; Merritt v. Dickey, 38 Mich, an antecedent separate debt is not a
41. And see Burnside v. Merrick, 4 bona fide buyer as against partner-
Met. 537, 544, and Greene v. Graham, ship creditors. Lewis v. Anderson,
5 Oh. 264; Mendenhall v. Benbow, supra. But see Reeves v. Ayers, 88
84 N. Ca. 646. III. 418. Nor is a judgment creditor

2 West of England, etc. Bk. v. of one partner a bona fide buyer,
March, L. R. 33 Ch. D. 138 ; Corser either as against prior or subsequent
V. Cartwright, L. R. 7 H. L. 731. creditors, mortgagees or buyers. See

3 Keith V. Keith, 143 Mass. 263. §§ 184, 391.
<Dupuy V. Leavenworth, 17 Cal.

398

REAL ESTATE. , § 205.

gagee of one of them on inquiry.' If the title is in one partner
a purchaser from the other in whom is nO legal title has notice."

Where the father of one of the partners was the purchaser the
court set aside the deed in fayor of the firm's assignee, for the bene-
fit of creditors, because he must have had notice.*

Where the partnership used and occupied the property for its
business, this was held of itself sufficient notice to a morigagee
that he could only take subject to equities.*

But the contrary was ruled in two earlier Michigan cases, on the
ground that this is consistent with individual ownership; and it is
common knowledge that firms occupy real estate either without
title or as tenants in common, and the buyer can rely on the rec-
ord.'

Whether the occupancy ought to convey notice was held a' ques-
tion of mixed law and fact, because not inconsistent with a tenancy
in common.'

Where the surviving partner, having the legal title to an undi-
vided half of the land, sold the undivided half to a person who
knew it was partnership property, instead of selling it all as a sur-
viving partner may do, such sale of part, it was held, should have
given the buyer presage of the intent of the seller to convert the

1 Sigourney v, Munn, 7 Conn. 384 ; N. J. Eq. 334 ; Bergeron v. Richar-
Brewer v. Browne, 68 Ala. 210 ; Mar- dott, 55 Wis. 139 ; Hoxie v. Carr, 1
tin V.Morris, 62 Wis. 418, 429; Boyce Sumn. 173, 193. In North Carolina
V. Coster, 4 Strob. Eq. 25, of a recital it makes no difference whether the
of an agreement. vendee of the interest of a partner

2 Williams v. Love, 2 Head, 80. had notice or not that it was part-
'Matlack v. James, 13 N. J. Eq. nershi^ property: he takes subject to

126. If the mortgagee by inquiry of debts. Ross v. Henderson, 77 N. Ca.

the tenant in possession would have 170.

learned of the firm's ownership, she 5 Hammond v. Paxton, 58 Mich,

is affected with notice, Baldwin v. 393 ; Reynolds v. Ruckman, 35 id.

Johnson, 1 N. J. Eq. 441. 80. And in Frink ?;. Branch, 16 Conn.

4 Cavander v. Bulteel, L. R. 9 Ch. 260, 271 ; Forde v. Herron, 4 Munf.

App. 79 ; Duryea v. Burt, 28 Cal. 569 ; (Va. ), 316, and all the Pennsylvania

Reeves v. Ayres, 38 111. 418 ; Divine cases.

V. Mitohum, 4 B. Mon. 488 (41 Am. « In Parker v. Bowles, 57 N. H.

Dec. 341); Buck v. Winn, 11 id. 330, 491 ; and the point was raised but not

333 ; Kerr v. Kingsbury, 39 Mich, decided in Cowden v. Cairns, 38 Mo.

150; Churchill v. Proctor, 31 Minn. 471, and Bank v. Sawyer, 38 Oh. St.

129; Mechanics' Bank v, Godwin, 5 339.

293

§ 296. CONDUCT OF THE BUSINESS.

proceeds to his own use, and the buyer attempting to acquire title
to a part' only, takes it at his peril.'

§ 296. ConTeyances in a firm name. — Strictly speaking,
the title to land can only be held by or conveyed to a legal
person, natural or artificial, and cannot be held by a con-
ventional person not recognized as a distinct entity in the
law; hence, a deed or mortgage to or by such person,
whether the name be wholly fictitious or composed of sur-
name & Co.,, or surnames combined, passes nothing at law,
partly because of the technical absence of a legal grantee
and partly because public policy requires a certainty in titles,
and a surname may apply to many persons, and often there
are several in the same firm of the same surname.^

If the firm name contains the name of an individual with
" & Co.," thus W. W. Phelps & Co., the individual receives
the title, and equity will hold him as a trustee for the firm.'

Thus, in Chavener v. Wood, supra, J. D. Haines, of J.
D. Haines & Bro., mortgaged real estate of the firm in the
firm name with the assent of the other partner, and the in-
vestment was held a good legal mortgage as' against him,
and an equitable mortgage as to the interest of the other;
but that a subsequent legal mortgage signed by both to a
person without, notice of the former mortgage was a prior
lien as to the intetest of the other partner.*

A deed invaUd at law because made to an indefinite grantee,
as a deed to Todd, Gorton & Co., or to any unincorporated
society in its society name, will found an equity in the mem-
bers of the firm.*

iTillinghast v. Champlin, 4 R. I. Percifull v. Piatt, 36 Ark. 456, 464;

173. 218-320. See Martin v. Morris, Moreau v. Saflfarans, 3 Sneed, 595;

62 Wis. 418. Contra, OflEutt v. Scott, Lindsay v. Jaffray, 55 Tex. 626, 641 ;

47 Ala. 104. Chavener v. Wood, 2 Oregon, 183.

2Tidd«. Rines, 26 Minn. 201; 10 ^And see Brunson v. Morgan, 76

Cent. L. J. 102; Percifull v. Piatt, Ala. 593.

36 Ark. 456, 464 ; Rammelsberg , v. 5 Tidd v. Rines, 26 Minn. 201 ; 10

Mitchell, 29 Oh. St. 22, 53. And see Cent. L. J. 103 ; Douthitt v. Stinson,

McMurry v. Fletcher, 24 Kan. 574 ; 73 Mo. 199 ; Byam v. Biotford, 140

28 id. 337. Mass. 31.

'Arthur v. Weston, 23 Mo. 378;

294

REAL ESTATE. § 297.

But in many states this rule has been relaxed, and a deed or
mortgage to A. & B. or A. & Co. has been held valid, or at least
not void for uncertainty on proof of identity, doubtless on the
principle of id certum quod reddi certum potest; and probably in
all states such a deed or mortgage to or by partners in the firm
name would be enforced in equity, where the defect could be cured,
where the litigation is between partners, or between a firm and its
grantee or mortgagee, and there is no dispute as to priorities of
other liens.'

And so in Hoffman v. Porter, 2 Broet. 158, a deed was made to
Peter Hoffman & Son, a firm, and John Hoffman, the son, brought a
suit as surviving partner for breach of the covenant for quiet en-
joyment; it was held that the recital of the fact of partnership
sufficiently designates which son is intended, and such son can take
under the deed and maintain the suit. And in Jones v. Neale, 2
Pat. & H. (Va.) 339, 350, a'deed to two persons by their firm name of
Neale & Bennett was held valid even to convey the legal title to
them as partnership property.

§ 297. Surplus is real estate in this country.^ The great
point of difference between the English and American law
is in the degree of conversion. In England it seems to be
now settled that a partner's share in the assets of the firm
is personal property for all purposes, no matter of what it
consists; and that, after satisfying partnership liabilities and
equities, the balance is still divisible as personalty and goes
to the representative and not to the heir, and is not subject
to dower. ^

1 Hoffman v. Porter, 3 Brock. 158; Hunter v. Smith, 14 Wis. 683; Sherry

Beaman v. Whitney, 20 Me. 413; v. Gilmore, 58 id.' 334. And see

Lindsay v. Hoke, 31 Ala. 543, 544; Printup v. Turner, 65 Ga. 71 ; Batty

Slaughter v. Doe ex d. Swift, 67 id. v. Adams County, 16 Neb. 44. A

494 ; Brunson v. Morgan, 76 id. 593. lease signed in the firm name by one

And see Elliott v. Dycke, 78 id. 150, partner, after occupancy by the firm

156; Chicago Lumber Co. v. Ash- and payment of r^it for two years,

worth, 26 Kan. 313 ; Orr v. How, 55 was enforced as an agreement for a

Mo. 338; Donaldsons. Bank of Cape lease, in Kyle vlRobe^if 6 Leigh

Fear, 1 Dev. Eq. 103; Hunter v. Mar- (Va.), 495. •

tin, 3 Rich. (S. Ca.>L. 541; Morse v. 2 Darby v. Darby, 3 Drewry, 495;

Carpenter, 19 Vt. 613; Baldwin v. Murtagh v. Costello, 7 Irish L. R.

Richardson, 33 Tex. 16; Jones v. 428; Att'y Gen'l v. Hubbuck, 10 Q.

Neale, 3 Pat. & H. (Va.) 339, 350; B. D. 473; 13 id. 375. And so appar-

295

§ 298. CONDUCT OF THE BUSINESS.

But the now unanimous American doctrine is, that after
the partnership demands are satisfied the unexhausted sur-
plus is real estate. The basis of absolute or partial conversion
into personalty is the presumed intention, and equity will
not go further and- convert it into personalty for additional
purposes, such as for the mere purpose of division, unless
the intention to convert for more than partnership purposes
appears; hence, in this country, the widow has dower out
of a partner's shai'e in the surplus, and the share goes to
the heir and not to the executor.^

§ 298. Out and out conversion into personalty. — ^But the

partners can, if they choose, convert their real estate into
personalty out and out,^ so that the surplus is personalty and
goes to the administrator and next of kin as against the heirs.
They have been held to have done so in a partnership to
deal in land, the real estate being a commodity.' Or if by

ently in Canada, Wylie v. Wylie, 4 50 N. Y. Superior Ct. 275 ; Summey
Grant's Ch. 278; Sanborn v. San- v. Patton, 1 Winst. (N. Ca.) Eq. 52;
born, 11 id. 359. Ferguson v. Hass, Phil. (N. Ca.) Eq.
1 Logan V. Greenlaw, 25 Fed. Eep. 113; Stroud v. Stroud, Phil. (N. Ca.)
299; Murrett v. Murphy, 11 Bankr. L. 525; Greene v. Graham, 5 Oh. 264;
Reg. 181 ; Offutt v. Scott, 47 Ala. Eammelsberg v. Mitchell, 29 Oh. St.
104; Brewer u Browne, 68 id. 210, 22, 53; Foster's Appeal, 74 Pa. St.
213; Espy v. Coiner, 76 id. 501; 391; 15 Am. Rep. 553; 8 Am. Law
Lenow v. Fones, 48 Ark. 557 ; Strong Reo. 230 ; Leaf's Appeal, 105 Pa. St.
V. Lord, 107 111. 35; Hale v. Plum- 505; Bowman u Bailey, 30 S. Ca. 550
mer, 6 Ind. 131 ; Matlock v. Matlock, Piper v. Smith, 1 Head (Tenn.), 93
5 id. 403 ; Grisson v. Moore, 106 Ind. Williamson v. Fontain, 7 Baxter, 212
296 ; Galbraith v. Gedge, 16 B. Hon. GrifEey v. Northcutt, 5 Heisk. 746
630, and Lowe v. Lowe, 13 Bush, 688, Diggs v. Brown, 78 Va, 393 ; Martin
limiting intervening cases; Buffum v. Morris, 62 Wis. 418. Contra, see
V. Buflfum, 49 Me. lOS, 110-12; Good- Hoxie v. Carr, 1 Sumner, 173 (die-
burn u. Stevens, 5 Gill (Md.), 1; s. C. turn). The former contrary rule in
1 Md. Ch. 430; Shearer v. Shearer, 98 Kentucky, Buck v. Winn, 11 B. Mon.
Mass. 107; Wilcoxu Wilcox, 13 Allen, 330; Bank of Louisville v. Hall, 8
358; Scruggs v. Blair, 44 Miss. 406; Bush, 676, has been limited by Lowe
Holmes v. HcGee, 37 Mo. 597; Camp- v. Lowe, 13 Bush, 688.
bell V. Campbell, M N. J. Eq. 415; 2 Davfs v. Christian, 15 Gratt. 11.
Buckley v. Buckley, 11 Barb. 43; 3 Galbraith v. Gedge, 16 B. Mon.
Buchan v. Sumner, 3 Barb. Ch. 630 ; Ludlow v. Cooper, 4 Oh. St. 1.
165 ; Fairchild v. Fairchild, 64 N. Y. Contra, Strong v. Lord, 107 111. 25,
471 (affi. 5 Hun, 407) ; Rank v. Grote, Hewitt v. Rankin, 41 Iowa, 35.

396

REAL ESTATE. § 299.

the articles of partnership or agreement the surviving or
other partner on dissolution may take the entire assets,
there is no reconversion into realty and the deceased part-
ner's share is personalty.^ Or if the articles, or even an oral
agreement, require the real estate to be held solely for part-
nership purposes, this has been regarded as an out and out
conversion.^ The agreement to convert into personalty
for 3,11 purposes, so that a surplus is not realty, must be
clear.'

.§ 299. Power of individual partners to Ibind firm as to
real estate. — The power of disposition of real estate in an
individual partner has not yet been treated, for it is a ques-
tion independent of the power to use a seal or the form of
the conveyance, for the want of a power to bind under seal
does not exist in several states, and the question of .the
validity of a contract to convey must be solved independent
of the doctrine of seals and independent of the form of
legal conveyances requiring the signatures of each. The
solution of the question requires a distinction to be made
between partnership real estate held as part of the capital

1 Leaf's Appeal, 105 Pa. St. 505 ; sidered case, in which the court be-
West Hickory Min. Ass'n v. Reed, 80 lieves it has found the doctrine that
id. 38, 50 ; Maddock v. Astbury, 32 will reconcile the American cases.
N. J. Eq. 181. 3 Flanagan v. Shuck, 83 Ky. 617,

2Rammelsberg v. Mitchell, 29 Oh. 630; Lenow v. Fones, 48 Ark. 557,
St. 22, 53 (one judge dissenting) ; Col- 563. In Berry v. Folkep, 60 Miss. 576,
lumbu Read, 84 N. Y. 505 (but much 604^-5, an agreement by which two
of the language in this case seems not persons bought a plantation on
consistent with the Fairohild case in credit, to work and improve it, using
64 N. Y. 471, which professes to ap- the profits each year to pay the pur-
prove it). See, also, Goodburn v. chase price, and, when paid for, to
Stevens, 5 Gill, 1 ; and such agree- divide it, was said to be a partner-
ment may be implied from the nat- ship, converting land into person-
ure and use of t^ie property, Cornwall alty only for a certain time, the
V. Cornwall, 6 Bash, 369; Bank of lands being partnership lands so far
Louisville v. Hall, 8 id. 673 ; but as to be bound for debtsj of the firm,
these three cases must be read But when the partnership ends a
with Lowe v. Lowe, 13 Bush, 688, tenancy in common begins, and the
which professes to approve, but lands would then go to heirs, and
limits them ; — a most carefully con- are to be partitioned, not sold.'

397

§ 299. CONDUCT OF THE BUSINESS.

or for the occupation and use of the business of the firm,
and that acquired by the firm as a commodity.^

1st. A partner has no imphed power to sell or incumber
the real estate of a firm not engaged in the business of buy-
ing and selhng real estate, or to bind the others by a con-
tract to do so, and such attempted contract will not be
specifically enforced. I have elsewhere urged ^ that the
partnership power of selhng, which is loosely said to be a
power to sell the entire property of the firm, is confined to
property acquired for the purposes of sale.'

2d. Where the real estate is not a mere incident of a
commercial partnership, but is the distinct substratum of
its business, as where that consists in the buying and sell-
ing of real estate, or the subdivision and sale of a tract, so
that such real estate becomes partnership stock in the sense

1 In Moran u Palmer, 13 Mich. 367, implied an authority, Mussey v.
a deed by one partner in his own Holt, 4 Foster (34 N. H.), 348 (55 Am.
name of partnership i-eal estate in Dec. 334); Shaw v. Farnsworth, 108
the name of all the partners, with Mass. 357. There are many other
the firm's knowledge and aoquies- cases where an attempted convey-
cence, the firm receiving the avails, ance or incumbrance by one partner
was held valid against heirs of a under seal was held or stated obiter
subsequently dying partner., to be invalid as against aU the part-
is §§ 403^05. ners except the signer, on the ground
3 Robinson v. Crowder, 4 MoCord that he could not bind the firm under
(S. Ca.), L. 519, 586; 17 Am. Dec. seal. These cases, therefore, do not
763 ; Ruffner v. McCannel, 17 111. 313; help us. Such cases will be found
63 Am. Dec. 363 ; Lawrence v. Tay- elsewhere ; amoqg those particularly
lor, 5 Hill, 107; Dillon v. Brown, 11 relating to real estate are, Dillon v.
Gray, 179, 180; Sutlive v. Jones, 61 Brown, 11 Gray, 179; Weeks v. Mas-
Ga. 676 ; Willey v. Carter, 4 La. Ann. coma Rake Co. 58 N. H. 101 ; Bald-
56; Keck v. Fisher, 58 Mo. 533, 535; win v. Richardson, 33 Tex. 16; An-
Arnold v. Stevenson, 3 Nev. 334; thony v. Butlerj 13 Pet. 433. The
McWhorter v. MoMahan, Clarke, Ch. power of contracting to sell land
400 ; 10 Paige, 386. See Elliott v. which may exist in a surviving or
Dycke, 78 Ala. 150, 156; Donaldson liquidating partner rests on the
V. Bank of Cape Fear, 1 Dev. Eq. power to wind up and is elsewhere
103. Leases made by one partner in treated, or where a partner has ab-
the prosecution of the business were sconded, see Assignment for Credit-
recognized where the nature and ob- ors.
jeot of the partnership necessarily

398

REAL ESTATE. § 300.

of a commodity, and the rules of an ordinary commercial
partnership apply, each partner, by the great preponderance
of authority, can bind the firm by contracts for its disposi-
tion, since the very scope of the business implies the exist-
ence of such power. ^

In Chester v. Dickerson, supra, a firm possessed a privilege or
bond for the purchase of land; one partner poured coal oil on the
property and passed it off to plaintiff as oil lands, and the entire
firm was held bound by the contract to sell, and consequently liable
for the deceit.'

But it must be conveyed as real estate in all cases, that is, in the
name of each partner, whether it be converted out and out into
personalty or not.'

§ 300. Survmng partner. — The surviving partner has
more than a mere lien to have the propertj'' applied to pay-
ing debts, but an equitable estate; he has the right to control
the property, and to treat it as personalty in order to wind
up.^ He can sell the entire beneficial interest without proceed-
ings to get a decree for that purpose,' and the buyer is noT;
obliged to see to the application of the purchase money,
as such burden w^ould greatly reduce the value; ^ or convey

1 Thompson v. Bowman, 6 Wall. it. In Morse v, Richmond, 6 111.
316; Sage v. Sherman, 2 N. Y. 417, App. 168(aflE'd, 97 111. 803), an express
431 ; Chester v. Dickerson, 45 N. Y. power to borrow, granted to one
836 ; 54 id. 1 ; 13 Am. Rep. 550 (aflE. member of a firm dealing in real es-
52 Barb. 349) ; Robinson v. Crowder, tate, was held to carry the power to
4 McCord (S. Ca.), L. 519, 536-7; 17 give a mortgage, the title being in
Am. Dec. 763 (per Johnson, J.); such partner as trustee.

Batty V. Adams County, 16 Neb. 44; 3 Davis v. Christian, 15 Gratt. 11.
Baldwin v. Richardson, 83 Tex. 16. * Cobble v. Tomlinson, 50 Ind. 550;

But see Lawrence v. Taylor, 5 Hill, Merritt v. Dickey, 38 Mich. 41, 44.

107. And see cases cited under § 294.

2 It was said, however, in Foster's 5 Shanks v. Klein, 104 U. S. 18;
Appeal, 74 Pa. St. 391, 396-7 ; 15 Am. Easton v. Courtwright, 84 Mo. 37 ;
Rep. 553 ; 3 Am. Law Rec. 330, per 17 Cal. 263 ; Tillinghast v. Cham-
Sharswood, J., to result from the plin, 4 R. I. 173; Griffey i;. North-
statute of frauds, that real estate cutt, 5 Heisk. 746 (by statute in Ten-
never became so far stock as to give nessee).

one partner implied power to dispose ^ See Tillinghast v. Champlin,
of the entire interest of the firm in supra; Griffey v. Northcutt, supra.

399

§ 301. CONDUCT OF THE BUSINESS.

to secure or compromise debts.* Hence rents derived from
the property between the death and the time of sale go to
the surviving partner.^

§301. Statute of frauds. — Where a partnership holds
land not as the chief purpose of its existence, but as an in-
cident to its business, the statute of frauds does not apply,
and the land may be shown to be part of the partnership
stock and affected with partnership equities by oral evi-
dence. The partnership i-equires no writing to prove it,
and exists outside of the ownership of real estate. ^

But the contrary is also held to some extent, and that lands ac-
quired in the name of one member of an oral partnership could not
be shown to be partnership lands.*

1 Murphy v. Abrams, 50 Ala. 293 ; verted into partnership property by
Breen v. Richardson, 6 Colorado, 605 ; oral agreement because of the statute
Van Staden v. Kline, 64 Iowa, 180. of frauds, nor on the doctrine of re-
And see § 731. suiting trusts, because the trust does

2 Dyer v. Clark, 5 Met. 562 ; 39 Am. not arise by implication of law, Par-
Dec. 697 ; CiUey v. Huse, 40 N. H. ker v. Bowles, 57 N. H. 491. Person-
358; Hartnettu. Fegan, 3 Mo. App. 1. ettet?. Pry me, 34 N. J. Eq. 26, seems

3 Be Farmer, 18 Bankr. Reg. 207 ; to be opposed to this, where two ten-
Lyman v. Lyman, 2 Paine, O. C. 11, ants in common of a iirm orally
22 ; Causler v. Wharton, 62 Ala. 358 ; formed a partnership in the land and
Scruggs V. Russell, McCahon (Kan. ), its management. Where a partner-
39 ; Marsh v. Davis, 33 Kan. 326 ; ship orally agreed to extend its deal-
Fall River Whaling Co. v. Borden, ings into real estate, if the laud was
10 Cush. 458 ; Sherwood v. St. Paul bought in the names of all, it could
& Chic. R'y, 21 Minn. 127 ; Baldwin be shown to be partnership prop-
V. Johnson, 1 N. J. Eq. 441 ; Per- erty, for this is not inconsistent with
Bonette v. Pryme, 34 id. 26 ; Fair- the title, but if bought in the name
child V. Fairchild, 64 N. T. 471 (aff. of one, it could not be, was held in
5 Hun, 407); Smith v. Tarlton, 2 Bird u Morrison, 12 Wis. [138]. Sev-
Barb. Ch. 336; Thompsons. Egbert, eral of the above cases are directly
3 N. Y. Supreme Ct. 474 ; Knott v. opposed to the latter proposition.

. Knott, 6 Oreg. 142; Brooke v. Wash- * Smith v. Burnham, 3 Sumn. 435;
ington, 8 Gratt. 348 ; 56 Am. Deo. Bird v. Morrison, 12 Wis. 153 [138] ;
143; McCullyu. McCuUy, 78 Va 159; York v. Clemens, 41 Iowa, 95; Ever-
Newton v. Doran, 3 Grant's Ch. (Up. hart's Appeal, 106 Pa. St. 349. Also,
Can.) 353. Contra, that real prop- Larkins u. Rhodes, 5 Porter, 195, and
erty not bought with partnership Rowland v. Boozer, 10 Ala. 690, in
funds, and* held, therefore, as ten- both of which cases relief was
ants in common, cannot be con- granted on other grounds. Dunbar

300

REAL ESTATE. § 302,

§ 302. same as to partnership to trade in lands. — The

authorities are divided on the question whether a partnership
to trade in lands may be proved by parol in order to affect
the lands .with partnership liabilities and equities. The pre-
ponderance is in favor of considering that the statute does
not apply if the land was or is to be purchased with the
joint fund, whether the title be taken in one or all.*

That recogaition of the partnership claim in letters to third per-
sons, written transactions, books of account and schedules of prop-
erty is sufficient to satisfy the statute.^ Third persons are not
confined to written proof of the existence of a partnership to deal in

V. BuUard, 2 La. Ann. 810 ; Benton v. Essex v. Essex, 20 Beav. 442 ; Bunnel
Roberts, 4 id. 316; Gray i;. Palmer, 9 v. Taintor, 4 Conn. 568; Chester v.
Cal. 616, 639 (a dictum). Question Dickorson, 54 N. Y. 1; 18 Am. Rep.
raised but not decided in Fall River 550 ; 52 Barb. 369 ; Traphagen v. Burt,
Whaling Co. v. Borden, 10 Cush. 458. 67 id. 30; Williams v. Gillies, 75 id.
That relief will be granted on the 197, 201 (rev. 18 Hun, 432) ; Richards
ground of a resulting trust if the evi- v. Grinnell, 63 Iowa, 44 ; 50 Am. Rep.
dence is clear and certain, Lai-kins v. 727 ; Pennybacker v. Leary, 65 id.
Rhodes, 5 Porter, 195; Piatt u Oliver, 320; Holmes v. McCray, 51 Ind. 358;
3 McLean, 367. But after sale of the 19 Am. Rep. 753 ; Clagett v. Kil-
lands, oral proof of an interest in the bourne, 1 Black, 846 ; Hunter v.
proceeds on the part of the copart- Whitehead, 42 Mo. 524 ; Springer v.
ners was permitted as being person- Cabell, 10 id. 640; Harbour v. Reed-
alty. Everhart's Appeal, 106 Pa. St. ing, 3 Montana, 15. And see Snyder
349. And damages for breach of an v. Walford, 33 Minn. 175 ; Wormser
agreement to contribute a certain v. Meyer, 54 How. Pr. 189 ; Bissell v.
shave of the capital in an oral part- Harrington, 18 Hun, 81 ; Knott v.
nersbip to buy a certain ti'act was Knott, 6 Oregon, 148 ; Piatt v. Oliver,
allowed, not being an action to con- 2 McLean, 267 ; 3 How. 401 ; Smith v.
vey title or recover price. Meason Tarlton, 3 Barb. Ch. 336. See Carr
V. Kaine, 63 Pa. St. 335. And land v. Leavitt, 54 Mich. 540. Contra,
bought with individual funds and Smith v. Burnham, 3 Sumner, 435,
owned by the partners as tenants in .458 (this case and Dale v. Hamilton,
common, upon which the partner- supra, are the two great leading ad-
ship conducts its business, cannot be versary cases on the whole subject) ;
subsequently converted into partner- Gantt v. Gantt, 6 La. Ann. 677 ; Pecot
ship personalty without writing; u Armelin, 21 id. 667.
hence partition cannot be defeated 2 gee Fall River Whaling Co. v.
by such oral evidence. Alexander v. Borden, 10 Cush. 458 ; Montague v.
Kimbro, 49 Miss. 539. Hayes, 10 Gray, 609 ; Rowland v.

1 Dale V. Hamilton, 5 Hare, 369 ; Boozer, 10 Ala. 690. '

801

§ 802, CONDUCT OF THE BUSINESS.

real estate to affect the property; the statute of frauds only applies
inter se.'

That a parol agreement by the huyer of lands to admit another
into partnership with him is void under the statute of frauds, as
not different from the contract of buyer and seller.' A difference
between these cases and those in the note above must be noticed. In
those the partnership was formed to deal in land, but was not itself
a transfer of the title, the land not being bought by the contract of
partnership, but in pursuance of it and out of the partnership
funds. In the present class of cases the contract itself purports to
be a transfer of interest.

1 In re Warren, 3 Ware, 332. Directly contra is York v. Clemens,

2 Henderson v. Hudson, 1 Munf. 41 Iowa, 95; Holmes v. McCrary, 51
(Va.)510; In re Warren, 2 Ware, 332. Ind. 358; 19 Am. Rep. 735.

302

CHAPTEE IV.

DUTY TO OBSERVE GOOD FAITH.

§ 303. The partners owe to each other the most scrupu-
lous good faith. Each one has a right to know all that the
others know, and their connection is one of great confidence;
and the uberrima fides of a fiduciary relation will be the
standard of fidelity exacted from them.

For example: A partner employed to buy goods for the firm, if
he buy for them goods of his own at the market price, must ac-
count to them for the profit, for otherwise he would be tempted, it
a skilful buyer, to use his judgment as to the fluctuations of the
market for his own benefit.^

In Burton v. Wookey, 6 Madd. 367, B. & W. formed a partner-
ship to deal in lapis calaminaris, which W. was to buy from the
miners on behalf of the firm. W. was' a shop-keeper, and the
miners were many of them his customersj but he paid cash for the
mineral and they paid cash for his goods, and after the partnership
had been in existence for some time, he adopted the course of pay-
ing for the mineral in goods out of his store, the change being
alleged to be on account of hard times, but charged B. as for
cash paid out. Sir John Leach, V. C, held that as W. stood in a
relation of trust and confidence towards B., and as the profit of
purchasing the mineral cheap would be divided between him and
B., but the profit of paying a high price for it in store goods wo^^ld
be exclusively his own, he would be biassed against duly discharg-
ing his duty to B., and must therefore account to B. for profits
upon the goods, and he was compelled to divide those profits.

Any secret agreement by one partner on behalf of his firm, made
with another firm in which he has an interest, prejudicial to his co-
partners will not bind them." Nor can a partner buy from the
firm without his copartner's assent. His power to sell is not a power
to sell to himself, and no title is conveyed by such transfer.' Even

1 Bentley v. Craven, 18 Beav. 75. ' Cotnstock v. Buchanan, 57 Barb.

2 Goodwin v. Einstein, 51 How. 137.

Pr. 9.

303

§ 304. CONDUCT OF THE BUSINESS.

in an auction sale of damaged goods of the firm, if one partner
purchase it will be deemed as on joint account, and he must ac-
count for profits upon it.'

Bad faith, however, will not be presumed; and where a partner
received money of the firm to buy goods for it, and was never heard
of afterwards, the loss must fall upon the firm in a controversy be-
tween the other partner and a person appointed administrator of
the absentee on a presumption that he was dead.'

So where M. & J. were partners as storage merchants, and M. as
manager had received for storage a lot of grain receipting for it in
the firm name, and, it having been lost or converted, gave a part-
nership note for it, the fact that J. did not know of the transaction,
and that M. and the owner had separate transactions together, and
the owner wrote t,o M. individually, does not show the note to be
■the liability of M. alone.'

§804. In all stages of their connection. — The same strict
degree of good faith is required of partners who are such
only in a single enterprise as a general partnership.'* So of
partners negotiating to form a partnership. While in bargain-
ing vfith each other they may have the rights of strangera
with adverse interests, and each obtain as large a share in
the contemplated firm as he justly can, for here the rule of
caveat emptor applies,^ yet in buying from third persons
the land or stock which the proposed partnership is designed
to manage, "he cannot retain a secret advantage." So of
partners who have dissolved but not yet wound up the busi-
ness. Until their connection with their former associates is
completely severed, their conduct will be tested by the same
principles.'

1 Zimmerman v. Huber, 29 Ala. benefit, Iddings v. Bruen, 4 Sandf.
379. A., who was largely in debt, Ch. 223.

took B. into partnership. B. brought 2 Jenkins v. Peckinpaugh, 40 Ind.
in no capital, but the firm assumed 183.

A.'s debtsj and made immense prof- ^ pierce v. Jackson, 31 Cal. 636.
its. A debt of A. of $800,000 was ■! yeoman u Lasley, 40 Oh. St. 190;
compromised at $200,000, and other Hulett v. Fairbanks, 40 id. 233.
debts in like proportion. Here A. .^Uhler u Semple,'20 N. J. Eq. 288.
does not become creditor of the 6 Densmore Oil Co. v. Densmore,
firm for half the difference between 64 Pa. St. 48, 50.
that and the original amount, but "Lees v. Laforest, 14 Beav. 250;
the compromise inures to the firm's Clegg v. Fishwick, 1 Mac. & Or. 294 ;

304

DUTY TO OBSERVE GOOD FAITH, § 305.

§ 305. Buying interests in ;flrm's property. — If one part-
ner buys an outstanding adverse title to property belonging
to the firm, or acquires an interest in its property without
his copartner's assent, which would be beneficial to the firm,
the purchase is deemed to be for the firm.'

A partner who clandestinely obtains in his own name a
renewal of the lease of the premises used by the firm must
hold it as partnership property.^ So, though the renewal is
for a term beyond the agreed duration of the partnership,
it inures to the benefit of the estate of the other partner
who has since died;' and though he notifies his copartners
of his intended action beforehand and the partnership is at
will.* And even if the renewal is to begin from the expira-
tion of the partnership, yet if the partnership had made
improvements and enhanced its value by creating a good
will, having built a hotel thereon, and though the lessor
might not have granted the new lease to the firm or to the
other partners, the renewal must inure to the benefit of alL*

Clements u Hall, 3 DeG. & J. 173; Washburn, 23 Vt. 576. And the
Warren v. Schainwald, 63 Cal. 56. same rule applies to the obtaining of
Jones V. Dexter, 180 Mass. 380 ; 89 any other exclusive use of a right
Am. Eep. 459; Beam v. Macomber, beneficial to the firm. Weston: %
33 Mich. 137 ; Betts v. June, 51 N. Y. Ketoham, 39 N. Y. Superior Ct. 54.
274, 278. Thus, If continuing part- But if the firm had merely a pos-
ners who are to account for coUec- sessory title, and the surviving part-
tions to a retiring partner, neglect to ner bought the interest of the de-
get in the debts, or think fit to enter ceased in this from the administrator,
into new arrangements with debtors his purchase of the fee will not be
by which they become debtors of the for the benefit of the heirs. Blatoh-
new firm, such partners are liable to ley v. Coles, 6 Colorado, 349.
the retiring partner for the amount '^ Featherstonhaugh v, Fenwick, 17
of the debts the same as if collected. Ves. 298,311; Clegg v. Fishwick, 1
Lees V. Laforesfc, 14 Beav. 250. Macn. & G. 294; Struthers v. Pearpe,
1 Kinsman v. Parkhurst, 18 How. 51 N. Y. 357 ; Clements v. Hall, 3
289 (of a patent); Eakin v. Shu- De G. & J. 173; Alder u Fouracre, 8
maker, 13 Tex. 51 ; Forrer v. Forrer, Swanst. 489.

29 Gratt. 134 (by a surviving part- 3 Leach v. Leach, 18 Pick. 68 j

ner) ; Gillett v. Gaffney, 3 Colorado, Clegg v. Fishwick, 1 Macn. & G. 294>

351. The above cases are of pur- * Clegg v. Edmondson, 8 De G. M.

chases of adverse interests. See, & G. 787, 807.

also, Burn v. Strong, 14 Grant's Oh. 5 Mitchell v. Read, 61 N. Y. 128; 19

(Up. Can.) 651; and Washburn v. Am. Eep. 253 (reversing 61 Barb. 310);
Vol,. 1—20 305

§ 805. CONDUCT OF THE BUSINESS.

But in such case the pivotal fact is underhand or secret
dealing; and if this element is absent and the firm is dis-
solved, as where one partner in a hotel business dies and the
surviving partner procures a renewal of the lease, he is not
obliged to hold it for the joint benefit, for he cannot be ex-
pected to run all the risk and divide the contingent profits.'
And so even though a representative of the estate is willing
to join as partner in continuing the business, for that would
be forcing a partner upon him.^ And the same rules apply-
to a renewal of a lease by the surviving partner in his own
name before his connection with the representative of the
deceased is ended.'

And so carefully does the law guard against abuses of
this fiduciary relation that if the lease contains no privilege
of renewal, yet the expectation, opportunity or chance of
renewal will be treated as an asset, and a new lease by one
pai'tner in his own name will be 'held to be in trust for the
firm*

These principles do not apply where the property interest m a
lease is not in the firm but exclusively in the partner himself.

s. 0. 84 N. Y. 556 (affirming 19 Hun, ored with the utmost inrlustry and

418). good faith to sell at an advance the

1 Chittenden v. Witbeck, 50 Mich, joint property in which the partners
401. _ had a privilege of purchase within a

2 Id. 419, 420. limited time, and after the partner-

3 Clements v. Hall, 3 DeG. & J. 173, ship has proved an utter failure he
186; Betts v. June, 51 N. Y. 274, 278; buys the property with his private
Clegg V. Fishwick, 1 Macn. & G. 294 ; means to save the forfeiture, he was
Leach v. Leach, 18 Pick. 68. not held to account for half to his

* Spiess V. Rosswogg, 16 Jones & copartner. Kayser v. Maugham, 8
Sp. 135; 63 How. Pr. 401; Johnson's Colorado, 232 ; s. c. id. 339. InAmeri-
Appeal (Pa. 18S7), 8 Atl. R. 36. And can Bank Note Co. v. Edson, 56
so of partners in agencies, as for in- Barb. 84 (1 Lans. 388), where a part-
surance companies, where one on ner purchased a patent right in an
dissolution procures a renewal of the article useful for the business and
agtencies for himself, although the offered to sell it to the firm at an ad-
other designs going out of business, vance, not disclosing the purchase
See Read v. Nevitt, 41 Wis. 348, ab- price, but they preferred to pay a
stracted in § 239. But there must royalty, it was held that any original
be limit to the incapacity of a part- right to claim the benefit of the pur-
ner to buy, as where he has endeav- chase expired at dissolution.

308

DUTY TO OBSERVE GOOD FAITH. § 306.

R. & S. p., being lessees for three years longer of three stone
quarries, with a privilege of renewal for three years, formed a part-
nership with P. to prepare stone for building, the partnership to
continue for three years and so much longer as R. & S. P. should
continue lessees under such lease. At the end of the three years
R. & S. P. refused to renew the lease, but took a new lease of two
of the quarries and formed a new partnership with another person.
Held, the iirst partnership expired by limitation at the end of
the three years. The articles did not oblige R. & S. P. to renew
the lease, as they might have done, and the court cannot add such .
provision. The lease did not belong to the firm, the articles of
partnership only providing that the lessees should furnish the firm
with stone at cost. R. & S. P. could refuse to renew the lease for
the purpose of ending the partnership if they desired. The part-
nership is as if it were for three years, renewable for three more at
S. & R.'s option. And so, although they may have spoken and
acted during the partnership as if they expected to renew the
lease, but not so as to amount to a new contract.'

§ 306. Competittg with firm. — If a partner speculate
with the firm's funds or credit he must account to his co-
partners for the profits, and bear the whole losses of such
unauthorized adventures himself.^ And if he go into com-
peting business, depriving the firm of the skill, time or dili-
gence of fidelity he owes to it, so he niust account to the
firm for the profits made in it;^ and a managing partner

1 Phillips V. Tleeder, 18 N. J. Eq. and by the above California case,
95. Whether a partner can buy in and was a dictum, for the case de-
fer his own use the reversion of land cides that where the other partner is
occupied by the firm under a term of negotiating for the same purchase
years, or per autre vie, is not clear for the firm, with the concurrence of
on the authorities. It was held that the copartner, the latter cannot ob-
a managing partner could not do so tain the property for himself, though
in Lafifan v. Naglee, 9 Gal. 663, and the renewal of the partnership is not
that an ordinary partner could do so fully adjusted as to terms.
in Batchelor v. Whitaker, 88 N. Ca. 2 See under Accounting, § 793,
350; general language to the effect 3 Todd v. Rafferty, 30 N. J. Eq. 264;
that he can do so in Anderson v. Bast's Appeal, 70 Pa. St. 301 ; McMa-
Lemon, 8 N. Y. 236 (reversing 4 hon v. McClernan, 10 W. Va.- 419;
Sandf. 553), was disapproved in Fletcher v. Ingram, 46 Wis. 191;
Mitchell V. Eead, 61 N. Y. 133, 143, Lockwood v. Beckwith, 6 Mich, 16a

807

§ 80G. CONDUCT OF THE BUSINESS.

will be enjoined from carrying on the same business for
his own benefit.^

A partner cannot prefer his own interest to the firm's.
He cannot keep the benefit of a good bargain to himself; and
any private advantages he may obtain by secret stipulations
of this kind must be shared with his copartners.''

The assent of the other partners must be very clear, and
will not be inferred from slight circumstances/ nor even
from several years' delay if they reasonably thought he
might ultimately account.''

Mere ownership in a similar business may not be inconsistent
with the duties of a partner. Thus, a person may be a partner in
many newspapers." So iu a partnership to store cotton, if the
other partner refuses to engage further warehouses, a managing
partner doing so at his own expense, without neglecting his duties
as partner, is not accountable for the profits." And a dormant or
silent partner who only lends capital or credit to the firm may con-
sistently have an antagonistic interest if there is no deception.'

A partner may traffic outside of the scope of the business for
his own benefit. Thus, a partner, authorized to collect a debt
secured by mortgage, bought in the land for himself at the fore-
closure. The debt being paid in full, he was held not to be account-
able for profits, especially as the other partners intended to " bluff
the creditors," having liens adverse to them, and get the land at an
undervalue; equity will not aid them against their copartner.' And
if copartners consent to a partner spending his time, and perhaps
their materials, in making improvements, from which they get a
benefit, on machines dealt in by the firm, his inventions are 'his
own, though the articles of partnership required each to devote his
time. to the business, even if he has violated his agreement.'

Injunction will be granted against a partner who has covenanted
to " exert himself for the benefit of the partnership " from break-

1 Marshall v. Johnson, 33 Ga. 500. 6 Parnell v. Robinson, 58 Ga. 36.

'i Lowry v. Cobb, 9 La. Ann. 593. ' Pierce v. Daniels, 35 Vt. 624, 634.

3 Todd V. Raflerty, 30 N. J. Eq. » Wheeler «. Sage, 1 Wall. 518. See

354, 356. Dean v. Macdowell, 8 Ch. D. 245.

< Bast's Appeal, 70 Pa. St. 801. 9 Belcher v. Whittemore, 134 Mass.

s Glassington v. Thwaites, 1 Sim. & 330.
Stu. 134, 133.

808

' DUTY TO OBSERVE GOOD FAITH. § 308.

ing the agreement by engaging in the same trade with others,' or
not to engage in any other business,' and against using what be-
longs to the partnership in competition with it, but not against a
mere temptation to do so.'

§ 307 . Commissions obtained from those dealing with firm.
Where a firm is formed for the purpose of purchasing and
dealing in a tract of land, or where a firm buys land, a
secret arrangement between the seller and one partner by
which the latter obtains a reward for inducing the firm to
buy, or a commission on the sale, or where such partner,
having an option to buy, sells to the firm at an advance, he
will of course be compelled to account for his gains.*

But M'here one partner, without objection from the other, em-
ployed another firm in which he was a partner to sell the firm's
commodities on commission, whereby the firm's expenses of trans-
portation were diminished, and also sold to the other firm, in order
to enable them to fill contracts, at a larger price than they paid,
he will not be compelled to account for his share of- the profits
made by such other firm.'

§ 308. Buying out or selling to copartner. — There is no
principle of law that prevents one partner buying out the
interest of the other or selling to him in good faith, provided
he acquires no secret benefit for himself at the expense of

1 Kemble v. Kean, 6 Sim. 333. him for accounting for it all ; that is

2 Dean T. Macdowell, 8 Ch. D. 345. his own loss. Grant v. Hardy, 33
' Glassington v. Thwaites, 1 Sim. & Wis. 668 ; and see Bast's Appeal, 70

Stu. 124. Pa. St. 301. The copartners can

iFawcett v, Whitehouse, 1 Euss. withdraw and recover their capital

& M. 131 ; Hodge v. Twitchell, 83 if they desire. Short v. Stevenson,

Minn. 389 ; Densmore Oil Co. v. supra. But whether they can, with-

Densmore, 64 Pa. St. 48, 50 ; Short out dissolving, compel repayment of

V. Stevenson, 63 Pa. St. 95; Emery the excess, see Faulds v. Yates,

V. Parrott, 107 Mass. 95; Dunlop v. supra. A person vcith vrhom the

Richards, 2 E. D. Smith, 181 ; Grant wrong-doer goes into partnership to

V. Hardy, 83 Wis. €68; ^Faulds v. assist in effecting the scheme, if cog-

Yates, 57 111. 416; Delmonico v. nizant of the improper conduct, is

Roundebush, 3 McCrary, C. C. 18. liable jointly and severally with the

And the fact that such partner was partner to the other associates, Em-

to divide his ■ commissions with a ery v. Parrott, 107 Mass. 95.
third person, and therefore does not 6 Freck v. Blakiston, 83 Pa. St.

realize the whole, will not relieve 474.

809

§ 309. CONDUCT OF THE BUSINESS.

his copartner by suppressing information or concealing' facts
which the latter was entitled to know.

In Oassels v. Stewart, L. R. 6 App. Cas. 64, it was so ruled even
though there was a*clause in the articles that an assignment of his
share by a partner should be null, and that the others should have
the option of buying, when this was merely to prevent the inter-
ference of strangers in the firm.

Geddes' Appeal, 80 Pa. St. 482, decides that if partners desirous
of selling get their price, it makes no difference that the purchaser
is secretly buying for the other partners, where there was no mis-
representation, although, in fact, the relations of the partners not
being amicable, the seller would have charged them more, and
though one of the selling partners was paid $2,000 more than the
other.

Bradbury v. Barnes, 19 Cal'. 120, decides that he may even buy the
interest of the other at sheriff's sale if with his own funds.

§ 309. But deception of any kind, or the non-disclosure of
material facts, especially by a managing partner, will vitiate
the sale.'

In O'Connor v. Naughton, 13 Grant's Ch. (Up. Can.) 428, where
a partner was induced to agree on a dissolution and settlement
under an erroneous impression that one of the others was about
to retire, and was therefore equally interested with himself in
having a fair valuation, whereas such partner had secretly agreed
with the rest to continue after settling with the first, the sale
was held not binding by reason of the deceit.

Maddeford v. Austwick, 1 Sim. 80,' ruled that a managing part-
ner cannot buy out his copartner for a consideration which he
knows is inadequate, but conceals the fact.'

So if a surviving partner refuses information to enable represent-
atives to determine whether to sell.*

In Brooks v. Martin, 2 Wall. 70, it was held that to sustain a
purchase by a managing partner from a copartner ignorant of the

1 In White?;. Cox, 3 Hay. (Tenn.)79, 's. P. Brigham v. Daua, 29 Vt. 1;
one bought out the other at an unrea- Stephens v. Orman, 10 Fla. 9 ; Hop-
sonable price by getting him drunk, kins u Watt, 13 111. 398; Sexton v.
and the court required an accounting. Sexton, 9 Gratt. 304.

8 Affirmed without opinion in 2 * Clements v. Hall, 2 De G. & J.
Myl. & K. 379. 173.

310

DUTY TO OBSERVE GOOD FAITH. § 309.

state of business, the price must be at least approximately adequate,
and that all information possessed by him necessary to enable the
seller to form a sound judgment must have been communicated.'

In Pomeroy v. Benton, 57 Mo. 531 (s. c. 14 Am. Law Reg. N.
S. 306); s. 0. 77 Mo. 64, the managing partner used the credit of the
firm in outside speculations, and by a false balance sheet not men-
tioning these, induced his copartner to sell out to him, the sale was
reopened, although the selling partner had not been vigilant.

In Jones v. Dexter, 130 Mass. 380; 39 Am. Rep. 459, it was held
that a partner acting for his copartner in winding up the partner-
ship, who at his own sale of the remaining assets procures another,
person to bay for him, even at public auction, and though the other
partner also bid, must account to him as if no sale had been made.

It was, however, held in Geddes' Appeal, 80 Pa. St. 482, that
where a selling partner was requested by the buyer to examine the
books, and could have done so but did not, and sold his share \o a
person who was secretly buying for the other partner for $28,000,
when it was worth f34,000, this is not so inadequate nor such
fraud that a court would set it aside after six years' delay, although
the business -was so prosperous afterwards that the share was paid
for out of profits.

In Nicholson v. Janeway, 16 N. J. Eq. 285, the court, recognizing
that concealment is as bad as misrepresentation, said it must be as to
a material fact; and that where the selling partner was induced to
agree to an accounting, or promise to receive notes for the balance
found due, the managing partners having become convinced that
nothing would be found due, but not telling him so, is not ground
for decreeing his reinstatement in the firm, for he received all he
was entitled to and the other partners have been deprived of his
aid during the interim.

In'Kintrea v. Charles, 12 Grant's Ch. (Up. Can.) 117, the partner
who had charge of the books and finances sold out to the other,
but by mistake of the book-keeper, of which the buying partner
was innocent, but should have been aware, the latter appeared as
creditor of the firm when he was really debtor, he was required to
account to the seller." ,

1 And BO in Heath v. Waters, 40 bfetween partner being opened for
Mich. 457, of a purchase by a surviv- fraud, but not disturbed for mere mis-
ing partner from an executrix. take, are numerous and will be found

2 The cases of an agreed settlement in §§ 759-763 ; and for purchases by a

311

§ 311. CONDUCT OF THE BUSINESS.

§ 310. A partner who purchases the interest of another
partner, in this case in a mine, without the knowledge of
his copartners, violates no trust or confidence towards his
other partners mei-ely by so doing.' But a partner may buy
out one of several other partners, although with perfect
fairness between buyer and seller, yet under such circum-
stances as to be held accountable to the other partners for
the purchased share as if bought for joint benefit, if he by
deception prevents them from buying.

In Warren v. Schainwald, 62 Cal. 56, certain partners proposed
to buy out the interest of a deceased partner, but were prevented
from doing so by the false statement of one of their number that
he had already bought it; his subsequent purchase was held to
inure to the joint benefit after reimbursing him for i?he outlay.
But in Bissell v. Foss, supra^ nearly the contrary was held in the
case of a mining partnership, where one of the other partners had
expected that one of the purchasers would buy for him and had
been led by the latter so to expect."

§ 311. Buying at execution sale. — There does not seem to
be any reason why a partner may not be a purchaser on his
own behalf at an execution sale of the partnership property.

Yet it has been held that a partner is disabled to become a pur-
chaser of the firm's property at an execution sale against the firm,
except in trust for the partnership, and a purchaser from him with
notice occupies the same position.' Certainly if he pays by check-
surviving partner from the adminis- ures to all. But in Bradbury v.
trator of the deceased partner, see Barnes, 19 Cal. 130, it was said that
§ 743. one partner could buy at a sheriffs

1 Bissell V. Foss, 114 U. S. 253 (afiE'g sale on execution levied on the "inters
s. C. sub. nom. First Nat'l B'k v. est of his copartner in the firm ; this,
Foss, 4 Fed. Rep. 694, and 2 McCrary, however, was a mining partnership.
73). And in McKenzie v. Dickinson, 43

2 And see, also, Blaylook's Appeal, Cal. 119, it was held that one partner
73 Pa. St. 146. engaged in settling up after dissolu-

3 Lamar v. Hale, 79 Va. 147, lo8 ; S. P. tion could buy a judgment rendered
Farmer v. Samuel, 4 Litt. (Ky.) 187 ; against his copartner and enf yrce it
14 Am. Dec. 106 ; Evans v. Gibson, 89 by levy and sale of the debtor's inter-
Mo. 323. In this case it was likened est in the firm, and by buying there-
to a tenant in common buying in an at become sole owner of the assets;
outstanding incumbrance which in- and this was placed on the ground

313

DUTY TO OBSERVE GOOD FAITH. § 312.

ing on the firm's deposit, the sale will be set aside and will not be
even a dissolution.' And so, if be has in bis hands more money.of
tbe firm than the amount of the judgments, unless the other part-
ner choose to insist on tbe sale.^ Certainly, if there is tbe least
collusion or procurement of the forced sale by tbe buying partner
to get the property at a discount,^ or to force a dissolution.''

B. & W., being embarrassed, dissolved, putting all the assets in
W.'s hands in trust to wind up, with power to mortgage the part-
nership real estate for that purpose. The firm was indebted to
W.'s father, who died, and W. was one of his executors. A mort-
gage by W. to his co-executors to secure the debt was held valid,
and at foreclosure sale, udder the mortgage, W.'s purchase for the
benefit of the estate, he being the only executor who had qualified
in this state, is valid, being in good faith and for a fair price, al-
though he W3,s interested as devisee. His purchase is not as trustee,
but as agent of the mortgagees."

§ 312. Abandonment or neglect by complaining partner. —

If a partner abandons the enterprise and leaves his associ-
ates to bear the burden alone, the original degree of obliga-
tion towards him does not subsist; " and the inequitable

that, outside of the conduct of the he had promised to buy for joint

business, each could traffic for his benefit and the general partners had,

own profit without restraint. therefore, not prepared for the sale,

1 Helmore v. Smith, 35 Ch. D. 436. hp was on this account compelled to

2 Bradbury v. Barnes, 19 Cal. 120. carry- out his promise. In Pereus v.
See, also, Hulettu Fairbaiiks, 40 Oh. Johnson, 3 Sm. & G. 419, the sheriff
St. 233, where a partner, having the concealed the fact that a seam of
funds of the firm, held them back so coal in mining property was nearly
as to force a forfeiture of a con- reached.

tract to buy land, in order to buy 3 Pierce ■;;. Daniels, 25 Vt. 624.

up the forfeited rights himself. And < Renton v. Chaplin, 9 N. J. Eq. 62.

in Catron v. Shepherd, 8 Neb. 308, a So bankruptcy of one partner will

partner who, having a large surplus not dissolve the firm, if brought

of partnership profits in his posses- about by the other for that purpose,

sion, bought up a claim against his- Amsinck v. Bean, 22 Wall. 395.

copartner for twenty-five cents on » Wilson v. Bell, 17 Minn. 61. W

the dollar, was allowed to turn it in was more interested as partner than

on accounting only for what he gave as executor.

for it. In Blaylock's Appeal. 73 Pa. eReilly v. Walsh, 11 Irish Eq. 22;

St. 146, a special partner purchased McLure v. Ripley, 3 Macn. & G.

on execution against the firm, but as 374.

313

§314. CONDUCT OF THE BUSINESS.

conduct of the injured partner may be such as to deprive
him of the right to complain that his copartner had retained
to himself the benefit of advantageous transactions.^

In Rhea v. Tathem, 1 Jones (N. Ca.), Eq. 290, A., B., C. andD.,
several persons, formed a partnership to buy lands of the estate and
mine, A. and B. alone giving a title bond for the lands. B., C. and
D. abandoned the works for several years, and A. in good faith sur-
rendered the land to the state, and afterwards obtained a pre-
emption right on it as an actual settler, and sold it, and he was
held not to be accountable for the purchase money.

§ 313. Duty to keep accounts. — It is the. right of each
partner that precise and accurate accounts be kept of the
business and transactions of the firm, always ready for in-
spection at its place of business and free of access.^ Where
no partner has the specific charge of the accounts, but each
keeps the memorandum of his own transactions, he will be
held to the strictest account for the non-performance of his
duty that the proofs will justify.' And if one partner has the
duty of keeping the books, and does not do so properly,
every presumption will be against him; he may be charged
with interest if no account of profits can be given; he will
be charged with sums coming into his hands unless their
application to joint benefit is most satisfactorily proved.*

§ 314. Access to books. — The books should be kept at the
place of business, and though their removal without con-

iLowry V. Cobb, 9 La. Ann. 592. tbey been kept as they ought to have

2 On the general duty to keep ac- been." Godfrey v. White, 43 Mich,

counts, see Goodman v. Whitcomb, 171, 174., And in other cases the court

1 Jao. & W. S89, 593 ; Rowe v. have, after repeated attempts to do

Wood, 2 id. 553, 558-9; Ex parte justice between the partners, been

Yonge, 3 Ves. & B. 31, 36; Chandler compelled to dismiss the bill and di-

V. Sherman, 16 Fla. 99. The im- vide the costs. Vermillion v. Bailey,

portance of keeping proper books is 27 111. 230. And may do this rather

too obvious to need argument or than grope in darkness in imder-

illustration. In one case an eminent taking to establish claims on mere

judge was led to say: "Nearly all contingencies and possibilities. Hall

the questions we are called on to de- v. Clagett, 48 Md. 223.
termine should have been easily set- 3 Pierce v. Scott, 87 Ark. 308.
tied by the partnership books, had * See § 765.

814

DUTY TO OBSERVE GOOD FAITH. § 314.

sent of a partner is not ground for dissolution and receiver,*
it is ground for injunction.^

In Greatrex v. Qreatrex, 1 De G. & S. 692, the books
when last seen were being carried down the road in a wheel-
barrow by defendant. The injunction was not mandatory
to bring them Jback, but was against his keeping them at
any other place than the counting house.

It is the right of each partner to have free access to the
books, and make copies or extracts from them.

Hence, where a person callad on for discovery makes answer that
the information was contained in books of a firm to which he be-
longed,,and that, on applying to his partners for permission to'make
extracts, they refused, this is not sufficient; he was not obliged to
ask permission unless he had given up his right of access by con-
tract.'

And though a person entitled to receive a share of the profits
has by contract agreed that he was to have no right to see the
books and accounts, but will take the defendant's word, yet if there
is a dispute as to what per cent., of profits it was agreed he should
have, and the books will settle the dispute, the court will not per-
mit the defendant to withhold the evidence.* Nor can a partner
who keeps the accounts in a private book of his own, though he
transcribe them into the partnership books for inspection, withhold
such private book from the inspection of his partners." And if the
copartners permit a partner to keep his accounts of outside mat-
ters, as of an estate of which he is executor, in the partnership
books, they must submit to his being compelled to produce them.'

1 Goodman v. Whitcomb, 1 Jac. & case, Ward v. Apprice, 6 Mod. 264,
W. 589, 593. bas held that a court of law could

2 Charlton v. Poulter, cited in note not enforce a partner's right to have
to Norway u Rowe, 19 Ves. 144, 149; the books produced at atrial between
Greatrex v. Greatrex, 1 DeG. & S. the partners.

692 ; Taylor v. Davis, cited in note to * Turner v. Bay ley, 34 Beav. 105,

Whittaker v. Howe, 3 Beav. 383, 388, aflEg. S. C. as Turney v. Bayley, 4

where, however, there was an ex- DeG. J. & S. 332.

press stipulation in the articles. 6 Toulmin v. Copland, 3 Y. & C. Ex.

8 Stuart V. Lord Bute, 12 Sim. 460 ; 625, 660-1.

Taylor v. Rundell, 1 Ph. 223 (aflfg. 6 Freeman v. Fairlie, 3 Mer. 34, 43.
1 Y. & C. 0. 0. 128.) An antiquated

315

CHAPTEE V.

IMPLIED POWERS OP EACH PARTNER.

§ 315. General principles. — Every partner is the general
agent of the firm to carry out its objects and transact its
business in the usual and ordinary way. He is not the
agent of each partner individually, and hence cannot bind
them severally, or any member of them less than all; ^ but
unless his power i^ limited by the articles, and the restric-
tion is known, he represents all the powers of the firm
within the scope of its ordinary business.

The authority of a partner as affecting third persons toay
be of two kinds: the real authority derived from the articles,
or nature of the business in the absence of articles, and the
apparent authority derived from the nature of the business,
though withheld by the articles. If, for example, the nat-
ure of the business does not warrant supposing a power to
exist, but the articles grant such power, a person in igno-
rance of the articles, dealing with a partner in such matter,
can hold the firm, for the partner is acting within his
actual authority. If, however, the articles forbid to a single
partner the exercise of a power which the apparent scope of
the business warrants, a person dealing with him in igno-
rance of the secret restrictions of the articles can hold the
firm.

Hence one of the most important matters in partnership
law is to ascertain what is included in the apparent scope of
the business. Scope may be generally described as includ-
ing what is reasonably necessary for the successful conduct

1 Elliot V. Davis, 3 B. & P. 338; Christy, 17 Iowa, 332. And see Mar-
Gillow V. Lillie, 1 Bing. N. C. 695 ; lett v. Jackman, 3 Allen, 287, 291 ;
Terrell v. Hurst, 76 Ala. 588 ; Shaw Snow v. Howard, 35 Barb. 55; Mar-
V. State, 56 Ind. 188 ; Ryerson v. vin v. Wilber, 52 N. T. 270.
Hendrie, 32 Iowa, 480 ; Sherman v,

316

IMPLIED POWERS GF EACH PARTNER. § 316.

of the business, measured by the nature of the business, the
usages of those engaged in the same, occupation in the same
locahty, and subject to be enlarged also by the known habits
and conduct of the pa,rticular firm itself. Each of these ele-
ments must be particularlj^ examined.

The fact that to one partner is assigned the care of one department
of the business, as buying or selling, does not prevent another
partner binding the firm by a contract in such department.' And
appointing a partner special agent to manage the business does not
necessarily limit his powers as a partner, but he retains them the
same as if not constituted an agent; " and the fact that a partner
has contributed services only, and not capital, does not ajBfect his
powers."

§ 316. Nature of the business. — The most important ele-
ment to be relied upon by persons dealing with the firm
through one partner, to determine his authority, is the nat-
ure of the particular business in which it is engaged. Every
occupation has certain essential characteristics determining,
in the absence of notice to the contrary, what powers a
partner may be assumed to possess; and the articles almost
never enumerate a partner's powers, and are rarely, if ever,
seen; hence the public can judge only by appearances, and
the articles cannot be used to control the apparent scope of
the business as against one who had no notice of them.

Where a partnership business was the manufacture and selling
of huUess oats, the restriction as to the kind of oats dealt in being
kept secret, a purchase by one partner or an agent of common
oats, being within the apparent scope, is binding.^ So where the
business was the buying and selling of hogs, a person justified in
believiiig the business included the sale of hogs on commission can
hold the firm on a contract with a partner who received his hogs
to sell on commission and failed to account for the proceeds."

In Maltby v. Northwestern Ya. R. R. Co. 16 Md. 422, where the

1 Barker v. Mann, 5 Bush, 672; i ^McNeish v. HuUess Oat Co. 57
Sweet V. Morrison, 103 N. Y. 335; Vt. 316.

Morans V- Armstrong, Arms. M. & b Jackson u. Todd, 56 Ind. 406, and

O.Irish N. P. Rep. 25. Todd v. Jackson, 75 id. 272; but

2 Hoskisson v. Eliot, 63 Pa. St. 398, there was proof that the other part-
* Kennedy v. Kennedy, 3 Dana, 239. ners were aware of the contract,

317

§ 81 7. CONDUCT OF THE BUSINESS.

principal business of the firm was the packing and transporting of
oysters to the west, but the partners had formerly owned a line of
wagons, bought and sold real estate in their joint names, owned
vessels and employed them in the coasting trade, and subscribed
for and bought and sold railroad stock, a jury was held warranted
in finding that a particular subscription to railroad stock by one
partner in the firm name was within the scope of the business.'

§317. same as against third persons. — On the

other hand, the nature of every business implies certain in-
trinsic restrictions, to exceed which requires express author-
ity, and which third persons dealing with a partner must
observe. The powers of a partner do not extertd beyond
what may fairly be regarded as coming within the ordinary
necessities of the business.^ A partner can only bind the
firm within the scope of the business, and a firm is not
bound by a purchase of goods by one partner which is out-
side the real or apparent- scope. When that limit is de-
parted from the act is analogous to the act of a member of
a non-trading firm, and every person must tak^ notice of
this fact.-' Almost all partnerships are, in one sense, par-
ticular partnerships. It is very rare that more than on6
branch of business is in view or that all varieties of trade
are embraced;* and the intrinsic characteristics of well-
known callings are recognized by the court as presumptive

lAnd if specially authorized the How. (Miss.) 432; Livingston v,

subscription may. be in the firm Roosevelt, 4 Johns. 251 (4 Am. Dec,

name, though each subscriber is by 273) ; Briggs v. Hubert, 14 S. Ca. 620;

statute required to subscribe his Venable v. Levick, 2 Head, 351

name. Ogdensburgh, etc. R. R. v. Bankhead v. Alloway, 6 Cold. 56

Frost, 21 Barb. 541 ; Union Hotel Co. Goode v. McCartney, 10 Tex. 193

V. Hersee, 79 N. T. 454. And if not Fraser v. McLeod, 8 Grant's Ch. (Up.

authorized the signer is himself lia- Can.) 268. Scope was said to be a

ble. Union Hotel Co. v, Hersee, question of law in Banner Tobacco

supra. Co. v. Jenison, 48- Mich. 459; and of

2 Hotchin v. Kent, 8 Mich. 526. fact in Taylor v. Jones, 42 N. H. 25;

3 Irwin V. Williar, 110 U. S. 499, Hodges v. Ninth Nat'l B'k, 54 Aid.
505 ; U.. S. Bank v. Binney, 5 Mason, 406.

176 ; Thompson v. Head, 2 Ind. 245 ; * Livingston v. Roosevelt, 4 Johns,
Wayne v. Clay, 1 A. K. Mar. 257; 251, 277 (4 Am. Dec. 278); Waldentt
Maltby v. Northwestern Va. R. R, Sherburne, 15 id. 409, 423.
Co. 16 Md. 422 ; Goode v. Linecum, 1

818

IMPLIED POWERS OF EACH PARTNER. § 317.

limitations.^ And some extreme examples will now be
given, showing that scope is a proper matter of judicial cog-
nizance; and though scope may in general be a question of
fact, yet many acts have become settled, as matter of law,
to be within or without the implied powers of a partner.

Thus it is not within the scope of a grocery firm to buy dry goods ; '
nor of millers and grain dealers to deal in futures for purposes of
speculating on the market;' nor of partners in an iron furnace to
buy a distillery and give the firm's note for it;^ nor of a printing
and newspaper ofSce to accept an agency to sell pianos ; ° nor of a mer-
cantile partnership to furnish railroad ties ; ' nor of machinists to sub-
scribe to an association to keep a harbor open and free from ice;'
nor of a storage and commission house to engage in cotton specula-
tion;' nor of a firm formed to buy hides and furs in Montana and
sell them in Chicago to purchase groceries." A member of a part-
nership in a patent right for the navigation of steam vessels can-
not bind the firm by a contract to build steamboats." The active
partner in a planting and farming business cannot bind his co-
partner by opening a store to sell merchandise;" nor can one of a
firm of millers open a grocery; " nor one of a firm to build and run
a railroad buy a competing road — the objects of the partnership are
confined to a definite purpose;" nor is it in the scope of a ware-
house, commission, receiving and forwarding business to receive
uncurrent bank-notes for sale and conversion into current funds; "

1 With this caution, however, that i" Lawrence v. Dale, 3 Johns. Cli,
as all acts beyond such limits may 33.

be binding by express authority or n Humes v. O'Bryan, 74 Ala. 64, 82.

subsequent ratification, or known I2 Banner Tobacco Co. v. Jenison,

usage of the firm, the objection 48 Mich. 459. In this case a stock of

should be raised at the trial, where goods had been taken by one partner

these replies can be made. Shaw v. for a debt and the debtor employed

McGregory, 105 Mass. 96, 102. as an agent to sell them, but for

2 Ferguson v. Shepherd, 1 Sneed four years the agent, under the direc-
(Tenn.), 354. tiou ot the partner, had bought new

3 Irwin V. Williar, 110 U. S. 499. goods to replenish the stock and
* Waller v. Keyes, 6 Vt. 357. did business in the name of the
» Board man V. Adams, 5 Iowa, 224. firm, and it was held that slight
« Rimel v. Hayes, 83 Mo. 200. circumstances, such as not dissent-
1 Wells V. Turner, 16 Md. 133. ing, would be sufficient to show rati-
8 Freeman v. Bloomfleld, 43 Mo. fication.

391_ 13 Roberts' Appeal, 93 Pa. St. 407.

9 Taylor v. Webster, 39 N. J. L. 102. "Goodman v. White, 25 Miss. 163.

319

§ 318. CONDUCT OF THE BUSINESS.

nor of a sugar refining firm to give a note for brandy,' though a note
for wine was deemed within the apparent scope of a manufacturer
of cider and vinegar."

One of a partnership to buy and sell merchandise cannot under-
take the collection of notes or moneys for others.' Thus in Toof v.
Duncan, 45 Miss. 48, P., one of a firm to ship and sell cotton, be-
ing on a trading expedition for the firm, was asked by D. to collect
a draft for him. F. indorsed the draft to his firm and asked to
have it put to his credit. The firm collected the draft, and P. with-
drew the amount and did not pay it to D., and the other partners
were held not liable to D. for it. The court said that had D. drawn
the draft payable to the firm, instead of to F. alone, the firm would
have been liable. This is no doubt true, since it passed through
their hands; but had F. collected it himself withotxt their knowl-
edge, the mere form of the draft would not have affected them, for,
being outside the scope of the business, their knowledge is necessary
to an assent. Or receive a deposit of bonds. A habit of receiving
deposits of money and paying interest on them does not give the
authority to receive bonds, for money, would be a benefit to it.*
And hence, too, where a ferry boat operated in partnership cannot
run by reason of low water, a partner is not authorized to bind the
firm by a contract to assist in swimming cattle across, and if the
cattle are drowned the other partner is not liable.'

In Battle v. Street (Tenn.), 2 S. W. Rep. 384, a firm bought and
paid for property; the vendor then deposited the money with one
partner "without the knowledge of the rest, to be held until the
buyers were satisfied with the title; the firm was held not responsi-
ble for the money.

§ 318. Usages of similar flrras. — The usages of those en-
gaged in a similar pursuit is an element in determining the
scope of a business, because each partner is presumed to
have intended to clothe his copartners with all the powers
incidental to and usually exercised in the same business in
that locality, for the public can only measure a partner's

1 Livingston v. Roosevelt, 4 Johns. Toof v. Duncan, 45 Miss. 48 ; Hutch-
351; 4 Am. Dec. 373. ins v. GUman, 9 N. H. 359.

2 Augusta Wine Co. ■«. Weippert, *Hatheway's Appeal, 53 Mich. 113,
14 Mo. App. 483. 6 Einstman v. Black, 14 111. App.

spickels V. McPherson, 59 Miss. 381.
316 ; Hogan v. Reynolds, 8 Ala, 59 ;

320

IMPLIED POWERS OF EACH PARTNER. §319.

powers by the nature of the business in connection with
such usage, and can assume that the business is to be con-
ducted in the usual and ordinary manner. Hence the com-
mon and usual dealings of persons engaged in the same
business in the locality are competent to show the nature
and scope of a partnership; ' and their common opinion and
usage furnishes the only practical and safe rule to deter-
mine it.^ The scope of the business may be one thing in
Brazil, another in Indiana, and another in Baltimore. It
may be different where the business is alone from one in
connection with a mill in a town.'

Where the usage of river carriers, when freights are dull, is to pur-
chase cargoes of salt to be sold on the return up trip, such purchase
by a partner binds the firm to pay the seller.". So if the usage of
boatmen on a particular river, as an incident to the procuring of
freight, is not only to^ carry, but, if requested, to sell the cargo and
bring back the proceeds, a partner in a boating firm, who so sells
on request and fails to account for the proceeds, is acting as part-
ner and not as the owner's agent,, and the firm is accountable,^ al-
though -but for the usage such a contract would have been entirely
outside the limits of the business." '

It has been held that the usage must be sufBciently notorious,
common and public, that the copartners can be presumed to have
had notice of it.'

§ 319. Usage of the same firm. — And within powers
granted by the articles may be included powers granted by
implication from a general usage or habit of the firm,
acquiesced in by aU the partners, for this is equivalent to
an agreed enlargement of the articles.

Acts, declarations and the course of business determine its
nature and extent.^ In so far as scope is to be determined

1 Smith V. Collins, 115 Mass. 388 ; 5 Galloway v. Hughes, 1 BaU. (S.

Irwin V. Williar, 110 U. S. 499; Ca.) L. 553.

Pierce v. Jarnagin, 5 Miss. 107. 6 Nichols v. Hughes, 3 Bail. (S. Ca.)

3 Galloway v. Hughes, 1 Bail. (S.Ca.) L. 109.

L. 553, 563. ' Prince v. Crawford, 50 Miss. 844.

3 Per Matthews, J., in Irwin v. s Waller v. Keyes, 6 Vt. 257, 264;

Williar, 110 Mass. 499. Kelton v. Leonard, 54 id. 380 ;

* Waring V. Grady, 49 Ala. 465. McNeish v. Hullesa Oat Co. 57 id.
Vol. 1 — 21 321

§ 320. CONDUCT OF THE BUSINESS.

from the habit of the particular partnership, an act or con-
tract must appear to have been authorized by the general
course of dealing/ but by these a firm formed for a dry
goods and grocery business may, by a habit of trading in
everything, become liable for a purchase of hogs in its name
by one partner.^ Hence prior similar acts, or habit of the
firm, are evidence of authority.' But the partners are not
liable merely because they have sometimes done a thing of
unusual or rare occurrence.*

So where one partner in a newspaper and printing office under-
took to sell pianos for the firm, after both partners had accepted
an agency for the sale of the pianos, each became liable for the acts
of the other in the scope of the new business.'

And where a firm is formed to sell on consignments alone, that
is, without power to buy, a managing partner having for two years
purchased stock upon credit, the ignorance of the other partner
was held to be no defense, and the firm appearing to be an ordi-
nary commercial firm, the right to btiy on credit to replenish
stock was implied.'

§320. Necessity as an element of scope. — The phrase
necessities of the business, used above in defining the term
scope, is not a necessity arising from peculiar exigencies nor
an exceptional and individual emergency, but moans vfhat
is necessary to carry on the business in the ordinary vs^ay.
A partner's power is to do only what is usual, and not what is
unusual because necessary.' For example, if the borrowing
power is not necessary to the conduct of the business in the

316 ; Lyman v. Lyman, 3 Paine, C. C. in the articles may be entirely abro-

11, 15; Irwin v. Williar, 110 U. S. gated by the practice of the firm as-

499, 505. sented to by all the' partners. See

1 Catlin V. GUders, 3 Ala. 586, 546. g 211.

2 Id. 4 Eraser D. McLeod, 8 Grant's Ch.
sPahlman v. Taylor, 75 III. 629; (Up. Can.) 268.

■ Folk V. Wilson, 21 Md. 538; Hamil- 5 Boardman v. Adams, 5 Iowa, 324;

ton V. Phoenix Ins. Co. 106 Mass. Williar u. Irwin, 11 Biss. 57 (reversed

895; Holt v. Simmons, 16 Mo. App. on other points in 110 U. S. 499).

97; McGregor v. Cleveland, 5 Wend. 6 Ala. Fertilizer Co. v. Reynolds, 79

477; Hoskisson v. Eliot, 63 Pa. St. Ala. 497.

393; Lee v. Maodonald, 6 Up. Can. 'See Eicketts v. Bennett, 4 C. B.

Q. a (Old Ser.) 130. Restrictions 686 ; Berry u. Folkes, 60 Miss. 576, 609.

323

IMPLIED POWERS OF EACH PARTNER. § 320.

ordinary way, an extraordinary emergency rendering it
necessary to have money enough to save it from ruin will
not create the power or render the firm liable for a loan;^
nor, vice versa, that a firm is rich and does not need money
does not deprive a partner of the borrowing power. ^

In Berry v. Folkes, 60 Miss. 576, two persons agreed to buy a
plantation on credit, manage it in partnership, use the profits to
pay for it, and then divide it. One of the partners died, requesting
by his will that the partiiership continue. The plantation was
going to waste, and the surTiving partner, with the assent of the
administrator and widow, to save it, made a contract with H., by
which "H. was to carry on and improve the plantation for a salary
and was to have one-third of it at the end of five years, or a propor-
tion for a less time. This contract was held beyond the partner's
powers and not binding on the heirs, for, if he could sell part, he
could sell the whole.

It was held, however, in Seaman v. Ascherman, 57 Wis. 547,
where a firm occupied part of plaintiff's building and the exigencies
of their business made the whole of the building necessary to carry
on the business in the ordinary way, this fact made binding upon
the whole, firm a contract on its behalf by one partner to take a
five years' lease of the entire building. But so, where a firm added
to its business an iron foundry situated upon leasehold property,
at the expiration of the lease, one partner has no implied power to
renew it or to lease other premises; and, semble, it would be the
same if the premises burned down: one could not contract to rebuild
in the name of thfe firm without authority.'

Though necessity will not create a non-existent power, yet the
limits of existing powers may expand or contract according to ex-
ceptional emergencies in the exercise of a bona fide discretion.* Thus
the frequent absence of one partner may enlarge the ordinary

1 Hawtayne v. Bourne, 7 M. & W. » Clements v. Norris, 8 Ch. D. 129.
595 ; Ex parte Chippendale, 4 DeG. ^ As in the case of Woodward v.
M. & G-. 19. Both of these cases were Winship, 13 Pick. 430, abstracted in
of loads to obtain money to pay ar- the next section. Arnold v. Brown,
rears of wages, for which distress 34 Pick. 89; 35 Am. Dec. 396; Ex
warrants had been obtained against parte Chippendale, 4 DeG. M. &G. 19;
the property. Pierce v. Jarnagin, 57 Burdon v. Barkus, 4 DeG. F, & J, 35,
Miss. 107, 111. ' 40, 51.

2 Pierce v, Jarnagin, supra.

§ 321. CONDUCT OF THE BUSINESS.

powers of the otlier.' So where partners in the business of buying
cattle in Texas and bringing them to Virginia to sell, found the
price in Virginia very low, and could neither sell nor obtain past-
urage. Thereupon some of the partners contracted to sell the
cattle, guarantying a certain profit at the end of the next year, and
this was held, under the circumstances, not to be in excess of their
powers.'

§ 321. Incidental benefit. — As unforeseen emergencies do
not enlarge the usual scope of implied powers, so the mere
fact of benefit" being derived does not render a contract in
the firm name by one partner binding upon it.

Thus, a member of a partnership in the manufacture of paper,
who is to sell the paper and buy stock, cannot bind the firm by the
purchase of a bale of cloth, intending to exchange it for paper rags
at a profit for common benefit, for which he gave the firm's note.'
So a member of a firm engaged in transporting passengers by a line
of stages cannot bind the firm by a contract to convey a person a
certain distance within a specified time.* Where the custom of a
person cannot be retained in any other way than by 9,llowing
his debt to the firm to be canceled by set-off of the debt of one part-
ner to him, this gives the debtor partner no power so to do; ? but
the usage of country stores to trade out debts may render such con-
tracts valid; ° nor can one partner guaranty in the firm's name for a
third person, even though reasonable and cojivenient for the pur-
poses of the business.'

Where a firm had a mortgage on a crop, and a creditor of the
mortgagee attached the crop, and one of the partners procured a
person to become surety on a forthcoming bond to release the at-
tachment, as being for the firm's benefit, this was said not to be
binding on the other partner.'

So where the firm of K. & M. were creditors of W., an insolvent,
whose assignee had sold property of the estate to the plaintiff, and
some of W.'s creditors, denying the assignee's right to sell, had re-

1 Lamb v. Durrant, 18 Mass. 54, 56; ' Cotzhausen v. Judd, 43 Wis. 313 ;
7 Am. Dec. 31 ; Forkner v. Stuart, 6 28 Am. Eep. 589.

Gratt. 197. , « Eaton v. Whitcomb, 17 Vt. 641.

2 Jordan v. Miller, 75 Va. 443. ' Brettel v. Williams, 4 Exch. 623.
' Thomas u Harding, 8 Me. 417. 'Moore v. Stevens, 60 Miss. 809;
* Walcott V. Canfield, 3 Conn. 194. Eussell v. Annable, 109 Mass. 78.

834

IMPLIED POWERS OF EACH PARTNER. § 321,

plevied the goods from plaintiff, and thereupon M. promised plaint-
iff that if he wonld sue the replevying creditors, instead of the
assignee, the firm of K. & M., being interested in sustaining the
assignee's title, would indemnify him ag-ainst loss if his action failed,
this promise does not bind the firm."

C, of B. & C, partners in the lumbering business, subscribed the
name of the firm to stock for a plank road, which would benefit
the firm's business. B. is of course not b'ound.^ So in a partnership
to build, equip and operate a railroad, no part of the partners less
than all can bind the firm to purchase a competing road, however
desirable.^

In Andrews v.. Congar (Supreme Ct. U. S. 1881), 20 Am. Law
Reg, (N. S.) 328; Lawyers' Coop. Book 26, page 90, where partners
owned a majority of the stock of a corporation, it was held that the
guaranty by the firm name, by one partner, of notes of the corpo-
ration to protect and improve the stock, bound the firm, because it
was for the common benefit. If this decision is correct, it must be
not because of the benefit, but because of a right to protect the
joint property.' The report however is meager, and does not even
show whether the stock was held jointly or individually. The
same ruling has just been made in Morse v. Hagenah (Wis.), 32 N.
W. Rep. 634, where partners in several kinds of trading and manu-
facturing business took stock in a woolen mill, and one partner was
held to. have power to sign the firm name to a note with other
stockholders to raise money to run the mill.''

In Woodward v. Winship, 12 Pick. 430 (the same firm of John
Winship, as in Winship v. Bank of U. S. 5 Pet. 629), the business
being the manufacture of soap and candles and exporting them to
foreign markets, and the purchase of a return cargo, Winship, the
managing partner, shipped all he had on hand, chartering a schooner
for the purpose, and as the cargo was not completed, he filled it up
by a purchase of pork and fiour, for the price of which the note
sued on was given. It was held proper to instruct the jury that
this purchase jjn'ma /am was not within the scope of the business,
but that if exportation was within the scope, and the purchase was
in behalf of the firm and to promote this principal object, and

1 Macklin v. Kerr, 38 Up. Can. C. * See Hodges v. Ninth Nat. Bk. 54
p. 90. Md. 408, where a somewhat similar

2 Barnard v. Lapeer, 6 Mich. 274. question was left to the jury.
8 Roberts' Appeal, 93 Pa. St. 407.

.835

§ 322. CONDUCT OF THE BUSINESS.

Winship acted bona flde and. in the exercise of a reasonable discre-
tion, he might be considered as acting within the scope. This is
not making his discretion the standard, but permits an exercise of
discretion at peril, within the general intent of the partnership.

§ 332. Restrictions iu the articles not binding on third
persons. — It follows, from the fact that the public judges
of the scope of a partner's powers from the nature of the
business and the usage of similar occupations, and the acts
and habits of the firm, that restrictions contained in the
articles or partnership contract limiting the powers that are
incident to the occupation or trade do not affect the public,
who are not made aware of them.^ This is not inconsistent
with the rule that one dealing with a special agent must

iCox V. Hickman, 8 H. C. L. 304; 335; Davis v. Richardson, 45 Miss.
U. S. Bank v. Binney, 5 Mason, 176 ; 499, 507 ; Prince v. Crawford, 50 id.
Winship v. Bank of U. S. 6 Pet. 539 ; 344 ; Bloom v. Helm, 53 id. 31 ; Pierce
Kimbro v. Bullitt, 23 How. 356, v. Jarnagin, 57 id. 107, 111 ; Lynch v.
366; Michigan Ins. Bank i;! Eldred, Thompson,' 61 id. 354; Cargill v.
9 Wall. 544 ; Andrews v. Congar Corby, 15 Mo. 435 ; Lomme v. Kint-
(Supreme Ct. U. S. 1881), 30 Am. zing, 1 Montana, 290; Bromley v.
LawEeg. (N. S.), 338; s. o. Lawyers' Elliot, 38 N. H. 287, 303; Eljiot v.
Coop.' Ed. Bk. 26, p. 90; Humes v. Stevens, 38 id. 311; Corning v. Ab-
O'Bryan, 74 Ala. 64, 84 ; Guice v. bott, 54 id. 469 ; Wagner v. Freschl,
Thornton, 76 id. 466; Ala. Fertilizer. 56 id. 495; Bank of Rochester u Mon-
Co. V. Reynolds, 79 id. 497; Manville teath, 1 Den. 403; 43 Am. Dec. 681;
V. Parks, 7 Colorado, 128 ; Bradley Tradesmen's Bank v. Astor, 11
V. .Camp, Kirby (Conn.), 77; 1 Am. Wend. 87, 90; Frost v. Hahford, 1
Deo. 13 ; Everitt v. Chapman, 6 E. D. Smith, 540 ; Nat'l Union Bk. v.
Conn. 347 ; Butler v. American Toy Landon, 66 Barb. 189 (afld. on other
Co. 46 Conn. 136; Pursley v. Ram- points, 45 N. Y. 410) ; Sage u Thomas,
sey, 31 LGa. 403; Stark v. Corey, 45 3 N. T. 417, 436-7; Seybold v. Green-
Ill. 431 ; Devin V. Harris, 3 G. Grepne wald, 1 Disney, 425 ; Benninger v.
(Iowa), 186; Medberry v. Soper, 17 Hess, 41 Oh. St. 64 ; Tillier i;. White-
Kan. 869 ; Miller u. Hughes, 1 A. K head, 1 Dall. 369; Churchman v.
Mar. (Ky.) 181; Bank of Ky. v. Smith, 6 Whart. 146; Hoskisson v.
Brooking, 3 Litt. 41 ; Barker v. Mann, Eliot, 63 Pa. St. 393; Nichols v.
5 Bush, 673 ; Williams v. Rogers, 14 Cheairs, 4 Sneed, 339 ; Coons v. Ren-
Bush^ 776; White v. Kearney, 3 La. ick, 11 Tex. 134, 138; Waller v.
Ann. 639 ; Maltby v. N6rth western Va. Keyes, 6 Vt. 257, 264 ; Barrett v. Eus-
■ R. R! 16Md.433; Brent v. Davis, 9 Md. sell, 45 id. 43; Kelton v. Leonard, 54
217; Taylor v. Hill, 36 id. 494, 501; id. 330; McNeish v. HuUess Oat Co.
Stimson v. Whitney, 130 Mass. 591 ; 57 id. 316.
Perry v. Randolph, 6 Sm. & Mar.

336

IMPLIED POWERS OF EACH PARTNER. g 323.

ascertain the extent of his powers, for a partner is presum-
ably a general agent for all the legitimate purposes of the firm,
and his powers are almost never enumerated in the articles,
and arise from the relation of partner and the general prin-
ciples of the commercial law, and not from any special
grant.

§ 323. unless known. — If restrictions or limitations

on the powers of the partners, or of some or one of them,
are known to a person, his attempt to deal with a partner
in violation thereof would be a fraud upon or an invasion of
the rights of the others, and he will be deemed to have
treated with such partner in his individual capacity, and
cannot look to the partnership, although it received the
benefit of such dealing.^

For example, the restrictions may be on the power of all
but one to make or indorse notes and bills; a person know-
ing this is bound, ^ even though it be in renewal.' Or the re-
strictions may be upon the right to dispose of property; a
buyer knowing this gets no title in violation of it; * or if it

1 Alderson v. Pope, 1 Camp. 404 ; 490 ; Hastings v. Hopkinson, 28 Vt. -
Ex parte Holdsworth, 1 M. D. & D. 108 ; Chapman v. Devereux, 33 id.
475; N. T. F. Ins. Co. v. Bennett, 5 616; 9 Am. Law Reg. (O. S.) 419;
Conn. 597, 598 ; Urquhart v. Powell, Coleman v. Bellhouse, 9 Up. Can. C.
54 Ga. 39 ; Radcliffe v. Varner, 55 id. P. 31. And see further §§ 335, 336.
437; Knox v. BufiBngton, 50 Iowa, Where a client knows that a law
320; Williams v. Barnett, 10 Kan. partnership is formed to do busi-
455; Combs V. Boswell, 1 Dana, 473; ness in a certain city, he cannot
Brent v. Davis, 9 Md. 217 ; Bailey v. hold the firm on a receipt in its
Clark, 6 Pick. 373 ; Boardman v, name by one partner of a note for
Gore, 15 Mass. 339 ; Wilson v. Rich- collection elsewhere. Brent v. Davis,
ards, 28 Minn. 337 ; Langan v. Hew- 9 Md. 217.

ett, 21 Miss. 123; Pollock v. Will- 2 Cargill t;. Corby, 15 Mo. 425 ; Wil-
iams, 43 id. 88; Cargill v. Corby, 15 son v. Richards, 38 Minn. 337. See
Mo. 425; Nolan v. Lovelock, 1 Mon- Guice v. Thornton, 76 Ala. 466.
tana, 334; Dow v. Say ward, 13 N. H. 3 Wilson v. Richards, supra.
271, 275; Bromley v. ElUot, 38 id. ^Eadcliflfe ii. Varner, 55 Ga. 427;
387, 303; Ensign u Wands, 1 Johns. Williams v. Barnett, 10 Kan. 455;
Cas. 171 ; Gram v. Cadwell, 5 Cow. Anthony v. Wheatons, 7 R. I. 490.
489; Mason v. Partridge, 66 N. Y. And see Ensign v. Wandg, 1 Johns.
633; Baxter v. Clark, 4 Iredell L. Cas. 171; Chapman u Devereux, 32
127 ; Anthony v. Wheatons, 7 R. I. Vt. 616 ; 9 Am. Law Reg. (O. S.) 419,

327

§ 324, CONDUCT OF THE BUSINESS.

be upon the right to purchase necessaries or hire labor, a
contract in known violation thereof creates an individual
and not a partnership debt.' Or the restriction may be a
limitation of the liability of one partner within a certain
amount. Here a knowledge of the limitation must be accom-
panied by a knowledge of its violation, for in the nature of
things notice of such limitation is not a contract by a cred-
itor not to collect his entire debt.''' The court in subjecting
the individual property of partners may observe this restric-
tion, even if not known, by selling in the order of liability,'
or the purchases must be for cash.*

§ 324. proof of knowledge. — As to what is sufficient

proof of notice to or knowledge of such restriction on the

where the restriction was against Ala. 497; Williams v. Eogers, 14

selling on credit, and a custom that Bush, 776 ; Perry v. Randolph, 6 Sm.

thirty days' time is the same as cash & Mar. 335.

was held void. 3 Kent v. Chapman, 18 W. Va. 485.

1 Urquhart v. Powell, 54 Ga. 29 ; * Johnson v. Bernheim, 76 N. Ca.
Eadcliffe v.'Varner, 55 id. 437; Dow 139, and s. c. Johnston v. Bernheim,
V. Sayward, 13 N. H. 371, 375; 86 id. 339 ; Hotchin «. Kent, 8 Mich.
Lynch i). Thompson, 61 Miss. 354; 526. In the latter case it was held
Miller v. Hughes, 1 A. K. Mar. 181 ; that the reception of the goods by
Frost V. Hanford, 1 E. D. Smith, the guilty partner, who was man-
540 ; Pollock v. Williams, 43 Miss, ager, is not a ratification, because
88, where a contractor knew that he could not ratify his own wrong,
one partner was to furnish the labor and the other pal'tners may have
at his own expense. thought the goods were paid for.

2 Butler V. American Toy Co. 46 Sir N. Lindley, in his admirable
Conn. 136; Nichols v. Cheairs, 4 work on Partnership, p. 332, sug-
Sneed, 339 ; Mason v. Partridge, 66 gests the ingenious distinction that
N. Y. 633 ; Lomme v. Kintzing, 1 notice of a stipulation between
Montana, 290. See Greenwood's partners, that one or all shall not
Case, 8 DeG. M. & G. 476 ; The State have a certain usual power, is not
F. Ins. Co., Meredith's Case, 1 B. & notice that they will not be an^wer-
P. New Rep. 510. But if the agree- able for the acts of a member he-
rn ent be that a person held out as a yond these limits, but. is inter se
partner shall have no interest or lia- only ; and he examines the English
bility of any kind, or a limited lia- cases with reference to this, and
bility, he is not a partner to those finds their statements to the con-
cognizant thereof, but is to every trary to be dicta, and that the ques-
one else. Phillips v. Nash, 47 Ga. tion is still open. The American
218 ; Saufley v. Howard, 7 Dana, 367 ; cases above given, however seem to
Ala. Fertilizer Co. v. Reynolds, 79 exclude this distinction.

338

IMPLIED POWERS OF EACH PARTNER. § 325.

part of the person dealing with a partner, such proof may
be circumstailtial, as from pubHcation of the objects of the
partnership, its sign and usual business.^ Thus, it has been
held that one partner's having for many years had the ex-
clusive conduct of the business, and that his interest was
known to be large and the other's small, was ' evidence. ^
Though merely that one partner usually signed the notes
and checks is not sufficient.^

Information of facts which should have led a reasonably
prudent and cautious man to inquire has been said to be
sufficient.* So, also, that the partnership, one of a peculiar
and widely known class, based on the principle of purchas-
ing for cash only, as in the case of certain co-operative
stores or protective unions.'

If a partner seeks to prove a restriction in the articles, he
must do so by producing the articles themselves and not by
the testimony of a Copartner; ^ though creditors probably
could prove it independently of the articles, and clearly so
after notice to produce them.'

It has been held that merely telling a third person that
one has ceased to ^e a partner, but that his name is to con-
tinue for a certain tinie, is not a sufficiently distinct warn-
ing or disclaimer of future contracts and debts.*

§ 325. Revocation of power Iby dissent of one partner;
certainly in a partnership of two where each has an eq[ual
voice. — A partner may, within certain limits, revoke or re-
strict a copartner's power as to future or executory con-

1 Livingston v. Roosevelt, 4 Johns. 393. And see Wagner v. Fresohl, 56
251 ; 4 Am. Dec. 273. Though id. 495.

mefely constructive or implied no- 5 Chapman v. Deyereux, 32 Vt. 616 ;

tice, never really brought to the at- 9 Am. Law Reg. (O. S.) 419. And

tention of the third party, is not see Skinner v. Dayton, 19 Johns,

sufficient, it is like actual notice of 513 ; 10 Am. Deo. 286 (rev. s. C. 5

dissolution. Devin v. Harris, 3 G. Johns. Ch. 351).

Gr. (Iowa) 186. ^ Hastings v. Hopkinson, 38 Vt.

2 Anthony v. Wheatons, 7 R. I. 490. 108.

STilford v. Ramsey, 37 Mo. 563, "Id. 117; Bogart v. Brown, 5 Pick.
566. 18.

* Bromley V. Elliot, 38 N. H. 287, 8 Brown v. Leonard, 3 Chit. 130.

339

§ 325. CONDUCT OF THE BUSINESS.

tracts, or can dissent from a particular contract, and, by
notice to the non-partner, can relieve himself from liability as
to it if made in disregard of such dissent.' It may be sug-
gested, however, that such dissent is only possible of the
implied powers of a partner, and not of those given by ex-
press contract in the articles, as to which the only revoca-
tion is by dissolution.

The intention thus to interfere must be clear and beyond rea-
sonable doubt.' But a notice by a person that he is not a partner
and would not he responsible for the debts is good though he was
and continued to be a partner, unless he adopts or receives a bene-
fit from the contract.' The fact that the avails of a contract, for
example, a purchase of goods forbidden by one partner, came to
the use of the firm, does not necessarily benefit the dissenting
partner, for the bargain may be a losing one though the firm used
them, and if he should be compelled to pay for a purchase by
which the firm is ruined because the goods came into the firm, his
right of disclaimer would be defeated.'* But the fact of benefit re-
ceived has been held to bind the firm on a sale for its legitimate
use."

Where the partnership consists of more than two persons
it has been held that on a dissent of one a third person acts

1 Willis V. Dysou, 1 Stark. 164; 7 Colorado, 531. Contra, see Graser
Galwayu Mathew, 10 East, 264; s. 0. v. Stellwagen, 25 N. Y. 315, and
as Galway v. Matthew, 1 Camp. 403 ; Campbell v. Bowen, 49 Ga. 417, ,
Eooth V. Quin, 7 Price, 193 ; Minnet ^ Tyler v. Scott, 45 Vt. 261 ; Sea^
V. "Whitney, 5 Bro. P. C. 489; Anon, man v. Ascherman, 57 Wis. 547, 5"53.
V. Layfield, 1 Salk. 291 ; Griswold v. See Cannon v. Wildmann, 28 Conn.
Waddington, 16 Johns. 438, 491; 472,493.

Teager v. Wallace, 57 Pa. St. 365; s Matthews v. Dare, 20 Md. 348;
Williams v. Roberts, 6 Cold w. 493; Leavitt v. Peck, 3 Conn. 134; 8 Am.
Monroe v. Conner, 15 Me. 178 ; 83 Deo. 157. See Brown v. Leonard, 2
Am. Dec. 148 ; Matthews v. Dare, 20 Chit. 130, noticed under i^ 324.
Md. 248; Knox v. Bufflngton, 50 ^Monroe «. Conner, 15 Me. 178; 32
Iowa, 320 ; Tyler v. Scott, 45 Vt. 261 ; Am. Dec. 148. See Hotchin v. Kent,
Hastings v. Hopkinson, 28 id. 108, 8 Mich. 536, noticed under g 323.
117; Leavitt u. Peck, 3 Conn. 134; 8 5 Campbell Vi Bowen, 49 Ga. 417;
Am. Dec. 157; Noyes v. N. Haven, Johnson v. Bernheim, 76 N. Ca. 139;
etc. R. R. 30 id. 1,14; Bowen v. s. c. as Johnston u Bernheim, 86 id.
Clark, 1 Biss. 138, 133 ; Bull v. Harris, 339. Contra, Galway v. Matthew,
18 B, Mon. 195 ; Wilcox v, Jackson, 1 Camp. 402.

330

IMPLIED POWERS OF EACH PARTNER. § 326.

at his peril, and cannot hold the dissenting partner liable,
unless the liability, arises from the articles or nature of the
partnership, but that in all matters within the scope of the
business, the majority must control, and the minority can-
not stop the business.^

§ 326. limit on the right to dissent. — The power

to forbid a person to deal with a copartner cannot be exer-
cised to prevent a debtor of the firm paying his debt to such
partner, for if so the other partner or partners, by a similar
notice, could disable the debtor from being able to make a
payment or tender to any one, and ho debts could be col-
lected at all.^

A debtor of the firm has nothing to do with quarrels be-
tween the partners, and if relief is necessary between them
a court of equity must be applied to.

In Noyes v. New Haven, etc. R. R. 30 Conn. 1, N., the partner
of a firm engaged on a contract to build a road, and being the part-
ner with whom the defendant had generally dealt, told the de-
fendant not to pay the final estimate to his copartner, E., but the
defendant and E. secretly met, keeping watches out to see that N.
did not come upon them, arranged the amount of the final estimate,
and E. received nearly the whole of it in final settlement, and E.
after paying some debts kept the balance. In an action for the
amount in the name of N. & E. the payment was held valid, and
a promise by the president of the defendant to N. not to pay E.
was held not to be a binding promise, nor could it be said that

1 Johnston v. Dutton, 27 Ala. 245 ; quire the seller to sell on time; the
Nolan V. Lovelock, 1 Montana, 224, court ruling that, in the absence of
237. See §§ 431-435. Both these cases restrictions in the articles, one part-
however, recognize the duty not to ner cannot limit the exercise of the
make a contract from which a co- other's legitimate powers,
partner dissents if the firm consists 2 Noyes v. New Haven, etc. R. R.
of two only. In Johnson v. Bern- 30 Conn. 1 ; Granger v. McGilvra,
heim, 76 N. Ca. 139, where one part- 24 111. 153 ; Steele v. First Nat'l B'k,
ner in a firm of two had power to 60 111. 33 ; Carlisle v. Niagara Dock
purchase eitlier for cash or on time, Co. 5 Up. Can. Q. B. (Old Ser.) 660,
it was held that the other could not where each partner forbade pay-
limit this by notice forbidding pur- ment to the other. And see Cannon
chases on time ; or, viae versa, if one v. Wildman, 38 Conn. 473, 493.
offer to buy for cash, he cannot re-

331

§ 327. CONDUCT OF THE BUSINESS.

the transaction was a fraud, for E. may liave been entitled to the
whole.

In Ayer v. Ayer, 11 Vt. 346, one partner placed the accounts in
the hands of an attorney, and ahsconded. The other partner notified
a debtor to pay no one but himself, but the debtor paid the attor-
ney; and the absconding partner approved it after an action in the
name of the firm had been begun against such debtor. The action
was sustained; the court holding that the attorney was agent of
the firm and not of one partner, and was accountable to either, and
was subject to the control of one as much as of the other, and the
partner had the right to demand back the accounts, discharge the
attorney and do his own collecting, and the notice not to pay was
such discharge, and that the subsequent approval of the other part-
ner could not give efficacy to the attorney's unauthorized act.

In Wilkins v. Pearce, 5 Den. 541, a person had indorsed for the
accommodation of the firm, and one partner had agreed in the firm
name to indemnify him, and it was held that the disssent of the
other partner at the time did not affect the right to act in defiance
of such dissent."

§ 327. What are trading partnerships. — In determining
what is the scope of a business, a distinction is nearly uni-
versal between what are called trading and non-trading part-
.nerships. Trading partnerships are ' frequently also called
commercial or mercantile partnerships, but these terms seem
to be somewhat too narrow, for among trading partnerships,
as we shaU see, are included manufacturing and mechanical
partnerships, the test being founded, not on the nature of
the. articles they deal in, but in the character of their deal-
ings.

Buying and selling has been said to be the test of a trading
partnership.^ Biit that a partnership is formed to sell is no
test at all; and it is difficult to conceive of a partnership in
which purchases are not sometimes necessary, and in many
non-trading firms constantly necessary; thus, farmers must

iThe case was aflarmed but on fokd, J., in Kimbro v. Bullitt, 22
other grounds in Pearce v. Wilkins, How. 256 ; Holt v. Simmons, 16 Mo.
2N. Y. 469. App. 97 : Pinkerton v. Ross, 33 Up.

2 Marshall, C. J., in Winship v. Can. Q. B. 508, 514.
Bank of U. S. 5 Pet. .529, 561; Clif-

832

IMPLIED POWERS OF EACH PARTNER. § 328.

constantly buy their seeds, miners their blasts, lawyers their
stationery. It should rather be said that, if the partnership
contemplates the periodical or continuous or frequent pur-
chasing, not as incidental to an occupation, but for the
purpose of selling again the thing purchased, either in its
original or manufactured state, it is a trading partnership,
otherwise it is not.

§ 338. For example, the following have been held to be
trading partnerships involving the power to borrow and sign
mercantile paper. It will be seen that they include retail
dealers as well as large concerns and manufacturers. Some
of the cases are also of partnerships in occupation, but here
the cases are not unanimous, and each must stand on its
peculiar objects.

Buying and selling of cattle;' of pork, hogs and meat;' buying
and killing cattle for sale and dealing in vegetables;' in a country
store;* dry goods." Parties casually met together and agreed to
buy what goods they could jointly or separately, and on reaching
market sell for joint benefit; this is a trading partnership, with a
right to borrow and give'notes and bills.* Drugs, partnership to sell.'

Manufacturers for sale of soap and candles; ' of pressed brick; ' of
refrigerators and saloon fixtures; '" of carriages; " of cooperage com-
bined with farming; '^ saw-mill, including buying and selling of lum-
ber; " steam saw-mill combined with farming; " merchant tailors; '*
clothing and furnishing ;'" wholesale lumber dealers ;" sugar refinery."

I Smith V. Collins, 115 Mass. 388. 12 McGregor v. Cleveland, 5 Wend.
2Gano V. Samuel, 14 Oh. 593. 477 (dictum).

3 Wagner v. Simmons, 61 Ala. 143. is Copley v. Lawhead, 11 La. Ann,

<Dow V. Moore, 47 N. H. 419. 615.

5 Walsh V. Lennon, 98 111. 27; 38 WKimbro v. Bullitt, 23 How. 256.
Am. Rep. 75. See Johnston v. Button, 27 Ala. 245.

6 Howze V. Patterson, 53 Ala., 205 ; Contra, partners in a steam saw-mill
25 Am. Rep. 607. were also held not to constitute a

'Gregg V. Fisher, 3 111. App. 261; trading firm, Lanier v. McCabe, 2

Lindh v. Crowley, 29 Kan. 756., Fla. 32; 48 Am. Dec. 173.

8 Winship v. Bank of XJ. S. 5 Pet. w Ah Lep v. Gong Choy, 13 Oregon,

539 ; Deitz v. Regnier, 27 Kan. 94. 205.

» Hoskisson v. Eliot, 63 Pa. St. 393. 16 Palmer v. Scott, 68 Ala. 380.

10 Holt V. Simmons, 16 Mo. App. 97. " Feurt v. Brown, 23 Mo. App. 333.

II Cowand v. Pulley, 11 La. Ann. 1. w TwibUl v. Perkins, 8 La. Ann. 183.

333

§ 329. CONDUCT OF THE BUSINESS.

Pork packers;' tannery and finishing-shop.'
Whether wharfigers and forwarders constitute a trading partner-
ship is a question which has been raised hut not decided.'

§ 329. Non-trading firms. — On the other hand the follow-
ing have been held to be non-trading partnerships. It will
be noticed that they are all partnerships in occupation. All
of the following, like the preceding cases, arose on questions
of the borrowing power and the right to sign mercantile
paper.

These partnerships in occupations, however, which gener-
erally imply non-trading concerns, may be so constituted as
to be in reality mercantile concerns. This has several times
been ruled in the case of mining firms.*

Attorneys or solicitors do not constitute a trading firm, and one
has no implied authority to bind the firm by note.'

Srokers, who' merely negotiate contracts for others, relative to
property not in their custody.'

Contractors to build a road are not.'

Farming or planting partnerships are non-commercial ones, and
the members have no implied power to sign negotiable paper.'

iBenninger v. Hess, 41 Oh. St. 64. Am. Rep. 733; Smith v. Sloan, 87

2Stimson v. "Whitney, 130 Mass. Wis. 285; 19 Am. Eep. 757; Work-

591. Contra, Newell v. Smith, 23 man v. MoKinstry, 21 Up. Can. Q. B.

Ga. 170 (dictum). 623, 625 ; Wilson v. Brown, 6 Ont.

SRoth V. Colvin, 32 Vt. 125, 133; App. 411.

Van Brunt v. Mather, 48 Iowa, 503. « First Natl. Bk. v. Snyder, 10 Mo.

*Thicknesse v. Bromilow, 3 Cr. & App. 311.

J. 425; Channell, B., in Brown v. 'McOord v. Field, 37 Up. Can. C.

Kidger, 3 H. & N. 858, 859; Decker P. 391. See Gavin v. Walker, 14

V. Howell, 42 Cal. 636. Lea (Tenn.), 643; and Roberts' Ap-

5 Levy V. Pyne, Car. & M. 458; peal, 92 Pa. St. 407.

Harman v. Johnson, 2 E. & B. 61 8 Greenslade v. Dower, 7 B. & C.

(rev. s. c. 8 Car. & K. 273); Garland 635; 1 Man. & Ry. 640; Brown v.

V. Jacomb, L. R. 8Ex. 318; Hedley v. Byers, 16 M. & W. 252; Kimbro v.

Bainbridge, 3 Q. B. 816; Forster «. Bullitt, 23 How. 256, 267; McCrary

Mackreth, L. R. 2 Ex. 163; Friend v. Slaughter, 58 Ala. 230; Ulery «.

V. Duryee, 17 Fla. Ill ; 35 Am. Rep. Ginrich, 57 III. 531 ; Davis v. Rich-

89 ; Miller v. Hines, 15 Ga. 197 ; ardson, 45 Miss. 499, 507 ; Prince v.

Breckinridge v. Shrieve, 4 Dana, 375 ; Crawford, 50 id. 344 ; Hunt v. Cbapin,

Marsh v. Gold, 2 Pick, 385; Pooley 6 Lans. 139; Pooley v. Whitmore, 10

V. Whitmore, 10 Heisk. 639, 636; 37 Heisk. 629, 636; 37 Am. Eep. 733.

334

IMPLIED POWERS OF EACH PARTNER. §329.

Mining or quarrying partnerships are not in a" trading business,
and a partner has prima facie no authority to bind the concern on
mercantile paper.'

Livery-stable.^

Pottery ware manufacturers cannot make notes.'

Printing establishment.*

Peal estate, insurance and collecting."

Single enterprise. Generally, in a partnership in a single enter-
prise, one partner has no power to make notes.'

So of stevedores.''

Tavern-keepers.^

Theater. Partnership to conduct, is a non-trading firm.'

Threshing machine. Partners in are non-trading.'"

Some cases seem to ignore the difference between trading and
non-trading partnerships, and adopt the single test of scope of the
business. In Hoskisson v. Eliot, 62 Pa. St. 393, the managing
partner of a firm in the business of making pressed brick borrowed
money on the firm's note. The court held that no distinction was

1 Dickinson v. Valpy, 10 B. & C. agents, money and commission brok-
138; Brown v. Kidger, 3 H. & N. ers," where the articles provided for
853 ; Skillman v, Lachman, 23 Cal. paying interest on any excess of the
199 ; Jones v. Clark, 42 id. 180 ; agreed cash capital furnished by one
Decker v. Howell, 42 id. 636 ; Charles partner, and securities for money
V. Eshelraan, 5 Colorado, 107 ; Man- were to be approved by all, and no
villa V. Parks, 7 id. 128 ; Higgins v. funds were to be drawn out, unless
Armstrong (Col. 1886), 10 Pac. Rep. there is sufficient to meet liabilities,
232; Judge v. Braswell, IB Bush, 67; these provisions were held to show
26 Am. Rep. 185; Shaw v. McGreg- more than a mere brokerage busi-
ory, 105 Mass. 96, 102, a quarrying ness, but that the facts of funds, a
firm ; Pooley v. Whitmore, 10 Heisk. cash capital and loans of money im-
629, 636 ; 37 Am. Rep. 733. ply a power in each to borrow on the

2 Hickman v. Kunkle, 27 Mo. 401, credit of the firm, especially as the
404 (overruled on other points by business of making' loans may fre-
Deardorf v. Thacher, 78 id. 128) ; quently require a borrowing.

Lev: V. Latham, 15 Neb. 509; 48 Am. 6 Gray v. Ward, 18 111. 32; Bentley
Rep. 361. V. White, 3 B. Mon. 263; 38 Am. Dec.

3 Bradley w. Linn, 19 111. App. 833. 185.

<Bays V. Conner, 105 Ind. 415. ''Benedict v. Thompson, 33 La.
Contra, Porter v. White, 39 Md. 613." Ann. 196.

s Deardorf v. Thacher, 78 Mo. 128 ; « Cocke v. Branch Bank, 3 Ala. 175.
47 Am. Rep. 95. In Freeman v. ' Pease v. Cole, 53 Conn. 53.
Carpenter, 17 Wis. 136, a partnership i»H*orn v. Newton City Bank, 32
" in the general business of land Kan. 518.

335

.§329. CONDUCT OF THE BUSINESS.

to be made between mecbanical, manufacturing and commercial
partnerships, and the necessity for borrowing may be as great in
the former as in the latter. In this case the jury found that bor-
rowing was within the scope of the business, and mor«OTer, there
was evidence of a usage of the firm to borrow, known to the other
. partners.

336

CHAPTER VI.

PARTICULAR POWERS BEFORE DISSOLUTION.

Following are specific applications of the foregoing prin-
ciples, and an alphabetical enumeration of the most fre-
quently occurring examples in which it is sought to invoke
an implied power in an individual partner to bind the rest.
Powers after dissolution will be hereafter considered.

§ 330. Accounts. — A statement by or in the handwriting
of one partner, made during the existence of the partnership,
is competent against the other as to the correctness of the
balance, as being an account stated by the firm.^ And so of
his admission that a debt once due to the firm has been
paid.^ So an admission by one partner of an amount due is
competent against the firm.'

§ 331. Admissions. — The competency of an admission or
declaration of a person to prove his partnership with an-
other, or to prove that a transaction in his name was on
account of his firm, will be elsewhere considered. But con-
ceding or having proved aliunde the existence of the part-
nership, the competency of the admissions of one member
as evidence against the firm is founded on the agency of a
partner and may be therefore treated here.

It is well settled that the acts, admissions or declarations
of a partner during the existence of the partnership, while
engaged in ti'ansacting its business, or relating to matters
within the scope of the partnership, are evidence against the
firm.*

1 Ferguson v. FyfEe, 8 01. & Fin. SQulick v. Gulick, 14 N. J. L.

131; Burgan v. Lyell, 3 Mich. 103; 578; Phillips u Purinton, 15 Me. 435;

55 Am. Dec. 53; Cunningham v. Wickham v. Wickham, 3 K. & J.

Sublette, 4 Mo. 234; Cady v. Kyle, 491.

47 id. 346. 4 Wood v. Braddick, 1 Taunt. 104;

2Munson v. Wickwire, 21 Conn. Thwaites i>. Richardson, 1 Peake, 23

513. [16]; Nlcholls v. Dowding, 1 Stark.
Vol. I — 23 337

§ 831. CONDUCT OF THE BUSINESS.

For example: Declarations of the partners that their men were
to he paid for the time they were idle if they remained with the
firm are competent.'

An admission of one partner that the firm could pay in full,
where the other partners by misrepresenting its condition had
procured a settlement of thirty-three cents on the dollar, is eompo.
tent in impeachment of the release.''

An admission by a partner tliat an agent who signed the firm
name to a note was authorized to do so is good evidence, even
though one partner could not have subsequently ratified such
signing if not authorized.'

A person about to buy a partnership note, and on inquiry being
told by a partner that it would be paid, can use such declaration to
prevent the partners defending on the ground that it was given to
pay a purchase made on misrepresentations.*

Where partners had collected insurance money by fraudulent

81 ; Sangster v. Mazarredo, I id. 161 ; Mass. 39 ; Collett v. Smith (Mass.),
Wright V. Court, 2 C. & P. 233; '10 N. E. Rep. 173; Burgan v. Lyell,

Wickham v. Wickham, 2 K. & J. 2 Mich. 103; 55 Am. Dec. 53; Faler

478, 491;Eapp u. Latham, 3 B. & v. Jordan, 44 Miss. 283; Cunningham

Aid. 795 ; Corps v. Robinson, 2 Wash. v. Sublette, 4 Mo. 234; Cady v. Kyle,

C. C. 388 ; Fail v. McArthur, 81 Ala. 47 Mo. 346 ; Henslee'u. Cannefex, 49

26; Smitha v. Cureton, 31 id. 652; id. 295; McCann v. McDonald, 7

Jemison v. Minor, 34 id. 33; Talbot Neb. 305; Jones v. O'Farrel, 1 Nev.

V. Wilkins, 31 Ark. 411; Munson v. 354; Webster v. Stearns, 44 N. H.

Wickwire, 31 Conn. 513; McCutchen 498; Gulick v. Gulick, 14 N. J. L.

». Banston, 3 Ga. 244; Dennis «. Ray, 578; Euckman v. Decker, 23 N. J.

9 id. 449; (Jlayton v. Thompson, 13 Eq. 283 (reversal in 28 id. 614. is on

id. 306; Drumrightt). Philpot, 16 id. other grounds); Hoboken Bank v.

434; 60 Am. Dec. 738; Kaskaskia Beckman, 36 N. J. Eq. 83 (affd. 37

Bridge Co. v. Shannon, 6 111. 15; id. 331); Fogerty u. Jordan, 3 Eobt.

Hurd V. Haggerty, 34 111. 171; Boor (N. Y.) 319; Hilton v. McDowell, 87

r.Lowrey,103 Ind. 468; First Nat'l N. Ca. 364; Allen u Owens, 2 Spears

Bk. V. Carpenter, 34 Iowa, 433; (S. Ca.), 170; Fisk v. Copeland, 1

Wiley V. Griswold, 41 id. 375 ; Spears Overton (Tenn,), 883 ; Adams v.

». Toland, 1 A. K. Mar. 203; Boyce Brownson, 1 Tyler (Vt.), 453; West-

V. Watson, 3 J. J. Mar. 498; Phillips ern Assur. Co. v. Towle, 65 Wis.

V. Purinton, 15 Me. 425; Gilmore v. 347.

Patterson, 36 id. 544; Fiokett v. i Wiley u Griswold , 41 Iowa;, 375.

Swift, 41 id. 65; Doremus u. McCor- ^Doremua v. McCormick, 7 Gill,

mick. 7 Gill, 49; Harryman v. Kob- 49.

arts, 52 Md. 64, 77 ; 30 Am. Law Reg. ' Odiome v. Maxoy, 15 Mass. 39.

(N, S.) 373; Odiome v. Maxcy, 15 ^Henslee u. Cannefex, 49 Mo. 395.

338

PARTICULAR POWERS BEFORE DISSOLUTION. § 332.

proofs of loss, and an action to recover it again was brought by the
insurer, admission of a partner that he had set the property on fire
is competent.'

§ 332. And it makes no difference that the declarant is
a dormant partner;^ and the fact that the admission or
declaration, if within the scope of the business, was honestly
or dishonestly intended, or in hostility to his copartner or
not, goes to its credibility and not to its competency.'

But admissions or declarations not in the scope of the
business, or relating to matters outside of the scope, are not
competent either as to such matters or to bring them within
the partnership business.*

In Boor v. Lowrey, 103 Ind. 468, two physicians were employed
to treat a patient. In an action by the patient for malpractice,
opinions of one, made after the conclusion of the employment, in
regard to the propriety of the treatment, are not competent against

) Western Assur. Co. v. Towle, 65 6 111. 15 ; Weed v. Kellogg, 6 McLean,
Wis. 247. The admission may be made 44. See Shepard v. Ward, 8 Wend,
in the answer of one partner in chan- 542.

eery. Hutchins v. Childress, 4 Stew. 3 Webster v. Steams, 44 N. H. 498 ;
& Por. 34; Dennis v. Ray, 9 Ga. 449 ; Western Assur. Co. v. Towle, 65
Clayton v. Thompson, 19 id. 206; Wis. 247. The mere order of evi-
Williams v. Hodgson, 3 Har. & J. dence is immaterial provided the ex-
474, 477; Ohapin v. Coleman, 11 istence of the partnership is proved^
Pick. 331. But the others must be Its proof after the admission has
alive and able to contradict it. Parker gone in cures the error. Lea v.
V. Morrell, 3 Ph. 453 ; Dale v. Hamil- Guice, 13 Sm. & Mar. 656 : Fogerty
ton, 5 Hare, 869, 393. And unless the v. Jordan, 3 Robfc (N. Y.) 319. And
complainant stands in the shoes of the preliminary evidence of the ex-
the declarant, and the declaration is istence of the partnership is within
not against the firm but against the the discretion of the judge, and, like
other partner, as where a judgment matters of voir dire, is not subject to
creditor of one partner files' a bill to review. Hilton v. McDowell, 87 N.
reach the debtor's interest in the firm, Ca. 364.

and the debtor's answer claims that a * Boor v. Lowrey, 103 Ind. 468 ;
large balance is coming to him from Stockton v. Johnson, 6 B. Mon. 408 ;
the firm, this is not evidence against Wells v. Turner, 16 Md. 133; Hefl-
his copartner, for it is his own favor, ron v. Hanaford, 40 Mich. 805 ;
Lewis V. Allen, 17 Ga. 300. Or in a > Jones v. O'Farrel, 1 Nev. 354 ;
garnishee process, Anderson u. Wan- McLeod v. Lee, 17 id. 108; McLeod
zer, 5 How. (Miss.) 587. v. BuUard, 84 N. Ca. 515; Oakley v.

« Kaskaskia Bridge Co. v. Shannon, Aspinwall, 2 Sandf. 7.

§ 333. CONDUCT OF THE BUSINESS.

the other. The report is not clear as to whether the defendants
were general partners or only in this one case. And an admission
by a partner is not evidence to establish the extent of his own
powers,' or to prove that he was partner of another.'

§333. As agents of others. — If partners are appointed
the agents of a person or employed for a certain business
the question arises whether an execution by a single one is
sufficient. If the power is granted to them as individuals
its exercise must be by the concurrent act of all. But where
the power or agency is within the scope of the ordinary
business of the firm, an act of a single partner in executing
it is an act in the management of the general business of
the firm and in its behalf, and binds both the firm and the
principal. A joint exercise is not necessary, but each can
act in the name of and with the powers of all.

Thus in a firm of insurance agents each can bind the company
within their powers, the same as the firm, as by signing instru-
. ments, making oral insurances or otherwise.'

So if a firm of attorneys employed to litigate a claim is au-
thorized to compromise it, either may exercise the power even after
dissolution.* And so, though the letter of instructions be ad-
dressed to but one of the firm (of attorneys) and the other receives
and acts upon it, the principal is bound.' So if corporate shares
are assigned to two copartners, with a power to both to transfer
them on the books of the company, and by a by-law shares are
transferable only at the ofBce by the holder personally, a demand
for transfer by one partner for both is sufScient.'

But where a deed of trust was made providing that, on the
trustee's ceasing to act, B. D. B. and J. T. P., partners under the

1 Ex parte Agace, 3 Cox, 313. * Jeffries v. Mut. L. Ins. Co. 110 U.

2 See § 1146. S. 305. In this case the employment

3 Kennebec Co. v. Augusta Bank- to litigate was on a share of pro-
ing Co. 6 Gray, 304; Purinton v. ceeds and hence like a power
Ins. Co. 73 Me. 33; Gordon v. coupled with an interest, but I do
Buchanan, 5 Yerg. 71. And see not think that affects the princi-
Newman v. Springfield F. & M. Ins. pie.

Co. 17 Minn. 133, where, however, s Beck v. Martin, 2 McMuU. (S. Ca.)
one partner alone had the certificate 360.

of agency, but the company had 6 Sargent v. Franklin Ins. Co. 8
recognized both. Pick. 90.

340

PARTICULAR POWERS BEFORE DISSOLUTION. § 334.

name of B. & P., should appoint a successor, an appointment of a
successor loj one partner in the firm name is not valid, for a part-
ner is not an agent of the firm, except in its ordinary business, and
the power here was to them as indiyiduals and both must concur
in the act.'

That a partner in oiie firm is also a member of another firm does
not make the latter agent of the former, or its acts binding on the
former. This is well illustrated by the case of Wright v. Ames.'

B. & C. were warehousemen, and C. had wheat, his individual
property, stored with them, and a firm composed of C, D. and
E., doing business under the name of D. & E., also had wheat
stored with them. C. sold his own wheat to the defendants, but
surreptitiously removed and converted part of it, in consequence
whereof B., his copartner in the warehouse, delivered to defendants
some of the wheat of the 'firm of D. & E., thus, in effect, paying
C.'s private debt with their property. It was held that D. & E.'s
title was not divested and they could recover it from the defendants.

§ 334. Agents and employees of the firm. — Each partner
in the prosecution of the business has implied power to
employ labor or engage services, such as are necessary to
conduct the ordinary business of joint enterprise.' The
principle that an agent cannot delegate his powers does not
apply in so far as the partner acts as partner, because he is
a principal, although in so far as powers are in excess of
the usual powers of a partner, and are derived from some
special delegation or appointment from the firm, it doubt-
less would apply.

Thus, each member of a mining partnership has authority to
employ laborers." So of a partnership to cut and sell timber — per-
sons employed by an active partner to carry on the business can
recover from the firm." So if land or goods be taken by a partner-
ship for a debt, one partner can employ a broker or agent to obtain

ICummings V. Parish, 39 Miss. 413. * Nolan v. Lovelock, 1 Montana,

22 Keyes, 221; 4 Abb. App. Dec. 224; Burgan v. Lyell, 3 Mich. 102; 55

644. Am. Dec. 53 ; Potter v. Moses, 1 R. I.

3 Beckhani v. Drake, 9 M. & W. 79 ; 430, 441.

Carley v. Jenkins, 46 Vt. 721 ; Mead 6 Mead v. Shepard, 64 Barb. 474 ;

«. Shepard, 54 Barb. 474; Smith v. Coons v. Renick, 11 Tex. 134, 138; 60

CSsson, 1 Colorado, 29. Am. Dec. 230.

841

§ 335. CONDUCT OF THE BUSINESS.

a purchaser for it.' One partner can employ an attorney to ap-
pear and represent the firm in suits.' Contra, in a mining partner-
ship, for this is not a necessary part of its business.*

A partner can employ a person to perform services to be com-
pensated by a division of the proceeds of the employee's labor, as
to buy and ship cattle on a share of the profits; but here the other
partners sued the employee for the proceeds and he claimed a part-
nership;^ or to furnish wool and oversee its manufacture and sell.'

Where an iron-foundry concern, in arrears to its workmen for
wages, was sold to the defendant partnership, and one of the part-
ners, to induce the men to continue working, promised to pay them
the same wages as before at the end of each week, and that the ar-
rears should be paid, one-half in the following January and one-
half in February,' the promise was held to be withinthe scope of
the business and the firm is bound by it.'

Where some of the partners went to California to prosecute the
mining with hands hired by the firm, on a share of the profits, and
they deserted, it was doubted whether those partners could engage
new hands at wages instead of a share of profits.' In Carnes v.
White, 15 Gray, 378, a member of an insolvent manufacturing firm
which had on hand unfinished articles was held authorized, in
order to finish them, to contract with a person to finish the articles
at his own expense and sell them to reimburse himself his ad-
vances.*

§ 336. An agent or employee is equally accountable to
and subject to the control of one partner as much as of

1 Durgin v. Somers, 117 Mass. 55 ; 8 a partner may appoint and de-
Banner Tobacco Co. v, Jenison, 48 pute a clerk or agent to act for the
Mich. 459. firm. Harvey v. McAdams, 32 Mich.

» Wheatleyi;. Tutt, 4 Kan. S40. 472; Bank of N. A. v. Embury, 21
» Charles v. Eshelman, 5 Colorado, How. Pr. 14, by a sole resident part-
107. ner about to be absent. In Tillier v.

* Frye v. Sanders, 31 Kan. 26; 30 Whitehead, 1 Dall. 369, a partner was
Am. Eep. 421. held to have power to authorize a

6 Swan V. Stedman, 4 Met. 548, 553, clerk to sign checks, notes, etc., for

but the powers of each partner were the firm ; but in Emerson v. The

unlimited ; he could engage in any- Providence Hat Mfg. Co. 13 Mass.

thing that he deemed of mutual in- 237, 243, it was doubted whether one

terest. partner alone could authorize an-

• Wills V. Cutler, 61 N. H. 405. other person to give a note in the
T Potter V. Moses, 1 R. I. 430, 441. firm's name.

343

PARTICULAR POWERS BEFORE DISSOLUTION. § 33(>.

another, subject to the powers of the majority, which are
elsewhere considered. And where the firm consists of two
partners only, each has the power, in the absence of dissent
by the other, to discharge a person employed by the other. ^

And so, if a partner employ a clerk and pay him, he is entitled
to reimbursement where the other partner does not dissent from
the employment, although he disapproved." But an employment
pi an incompetent relative by one partner without the other's
knowledge was held not to bind the latter to pay him.' The only
limitation that can be laid down upon the power to employ or dis-
charge where the partners are equallj'- divided, and there is positive
dissent, is that those in favor of things remaining as they are must
control.

ARBITRATION.

§ 336. No power to submit to. — A partner has no implied
power to bind the firm by a submission to arbitration. This
falls within the category of sealed instruments, and like
them, and especially like a confession of judgment, its
rationale is that a partner ought not to have the power to
bind not only the joint estate but also the individual prop-
erty of a copartner, with the additional reason that a sub-
mission excludes resort to the regular tribunals, cuts off the
rights of appeal or error, and is a delegation of power to
others. The power of a partner is of necessity dangerously
broad and should not be extended beyond what is requisite
to carry on the business in the ordinary way, and a power
to submit to arbitration is not necessary to any business.
Certainly, if a partner cannot enter an appearance for the
firm, or where service upon one partner gives no jurisdic-
tion over the copartners, as is so in many states, there can be
no power to create a court for them and bind the firm by its
decision.^

lAyer v. Ayer, 41 Vt. 346; Don- Stead v. Salt, 3 Bing. 101; s. c. 10

aldson v. Williams, 1 Cr. & M. 343. Moore, 38& ; Karthaus v. Ferrer, 1

2 Holloway v. Turner, 61 Md. 317.' Pet'. 232-338 ; Hall v. Lanning, 1

3 Baste ». His Creditors, 15 La. Ann. Otto, 160, 170; Fanohon v. Bibb

55. Furnace Co. (Ala.) 3 So. Rep. 368;

, « Strangford v. Green, 3 Mod. 328 : Jones v. Bailey, 5 Cal. 345 ; Wpody

343

§ 83C, CONDUCT OF THE BUSINESS.

The authority may be conferred by parol, and need not,
therefore, appear on the record.^ Or a subsequent ratifica-
tion may cure the want of authority.^

V. Pickard, 8 Blackf. 55; Armstrong proof of a previous assent by the part-
V. Robinson, 5 Gill & J. 412; Buchoz ner who had not signed had not been
V. Grand jean, 1 Mich. 367; Backus o£Eered, so that the case virtually de-
V. Coyne, 35 Mich. 5 ; Walker v. cided that assent need not be shovs'n
Bean (Minn. 1886), 36 N. W. Eep. by the plaintiffs.
233 ; Buchanan v. Curry, 19 Johns. i Davis v. Berger, 54 Mich. 653. See
137; 10 Am. Dec. 200; McBride v. Wilcox v. Singletary, Wright (O.),
Hagaa, 1 Wend. 326 ; Harrington v. 420; and see Karthaus v. Ferrer, 1
Higham, 13 Barb. 660; s. c. 15 id. Pet. 223, 231. Tliat one of the part-
5^4; Wood v. Shepherd, 3 Patt. & H. ners had kept a ship insured for sev-
(Va.) 442 ; Martin v. Thrasher, 40 Vt. eral years by time policies containing
460. Contra, Hallack v. March, 35 an arbitration clause without ob-
III. 48; Taylor v. Coryell, 12 S. & E. jection, was- held evidence of au-
243 ; Gay V. Waltman, 89 Pa. St. 453; thority to submit to arbitration a
Southard v. Steele, 3 Mon. (Ky.) 435. claim for loss under a like policy.
Of the above cases, the following Hamilton v. Phoenix Ins. Co. 106
limit the want of power to asubmis- Mass. 395. Thus, if the other part-
sion under seal: Armstrong v. Eob- ner had previously read and ap-
inson, 5 Gill & J. 413; Buchanan v. proved the submission, and was in
Curry, 19 Johns. 137; 10 Am. Dec. the store at the time it was signed,
300. While the following concede this is suflScient to bind both. Mackay
this power, assigning as the reason v. Bloodgood, 9 Johns. 385.
that a seal is not necessary: Hallack ^pgi-haps so, even when an ac-
V. March, 25 111. 48 ; Gay v. Walt- knowledgment is required, provided
man, 89 Pa. St. 453. Southard v. the one who executed acknowledged
Steele, 3 Mon. 435, and Taylor v. in the name of both, but not if only
Coryell, 13 S. & E. 343, that a sub- in his own name. Abbott v. Dexter,
mission, if not sealed, is in the 6 Cush. 108, 110. All the partners
power of each. But the Vermont joining in a writ of error to the
case puts it on the ground that the award is a ratification. Davis v.
exigencies and convenience of busi- Berger, 54 Mich. 653. So receiving
ness do not require a partner to pos- the avails of it by the partner
sess any such power, and that the who executed it is either a ratifica-
question of seal or no seal is of no tion by the firm, or an accord and
consequence. Martin v. Thrasher, satisfaction. Buchanan v. Curry,
40 Vt. 460; Harrington v. Higham, 19 Johns. 137; 10 Am. Dec. 300. The
13 Barb. 660 ; Stead v. Salt, 3 Bing. presence and participation of the
101 ; s. C. 10 Moore, 389. It was other partner at the hearing is an
held that a partner haJ this power assent (Hallack v. March, 25 ill.
in Wilcox u. Singletary, Wright (O.), 48); but may not be conclusive, as
430 ; but in that case the partners where the other is a foreigner and
were suing on the award, and it was does not understand what is going
merely objected to by defendant that on. Martin u Thrasher, 40' Vt. 460.

844

PARTICULAR POWERS BEFORE DISSOLUTION. § 337.

The submission, however, has been held to bind the one
that executed it, for he promised on behalf of the firm, and
his partner's refusal is a breach by him,' unless the defect
is want of a statutory acknowledgment and not want of
authority, since the one who signed did not agree to submit
by himself alone. ^

The question refers not merely to a formal submission to
arbitration, but includes any agreement of reference of a
dispute to a third person; ^ but a mere agreement by a part-
ner purchasing logs to adopt the run at the mill as the meas-
ure of quantity is not an arbitration and binds the firm.*

§ 337. A surviving partner can submit to an arbitration with
tke administrator of the deceased partner as to the state of accounts
between the partners.^ But he cannot arbitrate these matters with
the widow, he, himself being also the administrator; for she is
neither debtor nor creditor, and he represents both, being in a
double capacity." An administrator of both partners can submit
to arbitration with a creditor of the firm, and an award may be
against the estate of the last surviving partner, and the costs a
charge on the partnership funds.'

An award against the firm in the firm name, not showing who
the partners were, was held bad because it might compel the court
to try over again the question of who constituted the firm.' But
this objection would doubtless not hold in states where partners
can be sued in the firm name.

If all' have assented to the submis- Harrington v. Higham, 15 Barb.

sion a notice to one is thereafter no- 524 ; Wood v. Shepherd, 3 Patt. &

tic6 to all, Haywood v. Harmon, 17 H. (Va.) 443.

111. 477. But as the award must b^ 2 Abbott v. Dexter, 6 Gush. 108.

mutual, it was held that a subsequent 3 For example see Backus v. Coyne,

ratification against the will of the 35 Mich. 5 ; Brink v. New Amster-

other party does not bind him. dam Ins. Co. 5 Robt. (N. Y.) 104, as

Buchoz V. Grandjean, 1 Mich. 367. to the extent of loss under an insur-

Contra, see dissenting opinion of ance policy.

bwight, J., in Becker v. Boon, 61 N. i Perkins v. Hoyt, 35 Mich. 506.

Y. 317. 5 Clanton v. Price, 90 N. Ca. 96.

1 Jones V. Baile^r, 5 Cal. 345 ; Arm- 6 Boynton v. Boynton, 10 Vt. 107.

strong V. Robinson, 5 Gill & J. 413; ' Whitney v. Cook, 5 Mass. 139.

Strangford v. Green, 3 Mod. 338; 8 Wesson v. Newton, 10 Cush. 114.
McBride v. Hagan, 1 Wend. 336;

845

§ 338. CON-DUCT OF THE BUSINESS.

ASSIGN FOR CREDITORS.

§ 3 38. Cannot assign for creditors. — The implied power of
a partner over the assets of the firna, which is so great as to en-
able him to couvey the whole of that part of them intended
for disposition, is limited to a transfer in the conducting of
the business of the firm, and does not extend to a transfer
which ipso facto is a dissolution and destructive, as distin-
guished from a transfer, which, like a transfer of all assets
held for sale, may lead to a dissolution, though not such
per se. The difference is that the latter is in the exercise
of a power to preserve, and the former is exercising a power
to destroy, and is not acting as agent, but Is appointing
an agent irrevocably, who supersedes the other principals.
Hence it is by the weight of authority not within the implied
power of one partner, or of any number less than all, to
assign the entire effects of the firm for the benefit of
creditors, when the other partners can be consulted or are
within communicable distance: It is not within the scope
of the business to deprive all the copartners of the posses-
sion and control of the partnership property.'

1 Bo wen v. Clark, 1 Bjss. 128; 511; Kelly v. Baker, 2 Hilt. 531;
Pearpoirrt v. Graham, 4 Wash. C. C. Deming v. Colt, 3 Sandf. 284, folL by
232, 234; Wooldridge U.Irving, 23 Hayes v. Heyer, id. 393; Fisher u
Fed. Rep. 676; Dunklin ?;. KimbalJ, Murray, IE. D. Smith, 341; Wetter
50 Ala. 251; Wilcox v. Jackson, 7 uSchlieper, 4 id. 707; 15 How. Pr.
Colorado, 531 : Loeb v. Pierpoint, 58 268; Coope v. Bowles, 43 Barb. 87; 18
Iowa, 469 ; 43 Am. Rep. 123 ; Bull v. Abb. Pr. 442 ; Palmer v. Myers, 43
Harris, 18 B. Mon. 195 ; Maughlin v. Barb, 509-; 29 How. Pr. 8 ; Holland
Tyler, 47 Md. 545, 550 ; Kirby v. In- v. Drake, 29 Oh. St. 441 ; Ormsbee v.
gersoll, 1 Doug. (Mich.) 477 (affg s. Davis, 5 R. I. 442; Petition of Dan-
C. Harr. Ch. 173) ; Stein v. La Dow, iels, 14 id. 500; Henderson v. Haddon,
13 Minn. 413; Hughes v. Ellison, 5 12 Rich. (S. Ca.) Eq. 393; Williams
Mo. 463; Hook v. Stone, 34 id. 329; v. Roberts, 6 Cold. (Tenn.) 493, 497;
Steinhart u Fyhrie, 5 Montana, 463; Dana v. Lull, 17 Vt.' 391, 393-4;
Petteet". Orser, 6 Bosw. 123;18How.' Brooks v. Sullivan, 33 Wis. 444;
Pr. 443; Haggerty v. Granger, 15 Rumery v. McCuUoch, 54 id. 565;
How. Pr. 243 ; Paton v. Wright, 15 First Nat'l B'k v. Hackett, 61 id. 335,
id. 481 ; Welles v. March, 30 N. Y. 343-; Coleman v. Darling, 66 id. 155 ;
344, 350; Fish v. Miller, 5 Paige, 26; Cameron v. Stevenson, 12 Up. Can.
Havens v. Hussey, 5 Paige, 30 ; C. P. 389 ; Stevenson v. Brown, 9 L.
Hitchcock V. St. John, Hoflf. Ch. J. Chy. (Up, Can.) 110; 3 Bell's Com.

346

PAETICULAR POWERS BEFORE DISSOLUTION. >§ 339.

There are a few decisions, however, that hold it to be within the
implied power of a partner to make a general assignment for the
benefit of creditors, seeming to consider this as a necessary conse-
quence of the power of disposition of the entire partnership prop-
erty.'

§339. Eatification. — Prior authority or subsequent rati-
fication of the copartners will validate the act, as in other
cases of acts beyond authority.^

Thus in Osborne v. Barge, 29 Fed. Rep. 725, B. & K., part-
ners, had agreed to assign for benefit of creditors, and had

(Scotland) 615. In Wooldridge v. assignment without the assent of a
Irving,, 33 Fed. Rep. 676, the power special partner, is very doubtful,
was denied though the firm was See authorities collected in Bates on
hopelessly insolvent, the other part- Limited Partnership, pp. 189 to 192.
ner an imbecile, and the assigning In Whitworth v. Patterson, 6 Lea
partner had a power of attorney to (Tenn.), 119, holding that where there
transact all busiuess. The assign- was no actual partnership, but a
ment was, however, held void on mere holding out, the real owner
other grounds also. could assign for creditors, it was

1 Hennessy v. Westerly Bank, 6 said that the same rule would obtain
Watts. & S. 300; 40 Am. Dec. 560; in case the non-assenting partner
Robinson v. Crowder, 4 McCord (S. were a dormant one ; and the' same
Ca.), 519, 538, where, however, the suggestion was made in Drake v.
assignment was held invalid on other Rogers, 6 Mo. 317. A single partner
grounds ; Gordon v. Cannon, 18 may apply to the court of insolvency-
Gratt. 387, 404; Scruggs v. Burruss, for proceedings against the firm,
5J5 W. Va. *670; Lasell v. Tucker, 5 Durgini;. Coolidge, 8 Allen, 554, 555;
Sneed (Tenn.), 33 (regretted in Bar- or may sign for the firm a petition
croft V. Snodgrass, 1 Cold. 430, 440, for its bankruptcy, Pleasants v.
and is distinguishable because the Meng, 1 DaU. 380.
non-assenting partner was, in fact, 2 Pearpoint v. Graham, 4 Wash. C.
absent ; and in Williams v. Roberts, C. 233 ; Dunklin v. Kimball, 50 Ala.
6 Cold. 493, 497, it was said that if 251 ; Rumery v, McCullooh, 54 Wis.
one partner is present the other can- 565 ; Adee v. Cornell, 93 N. Y. 572
not assign without his assent). See (aff. 25 Hun, 78); Wiles v. March,
Graves v. Hall, 32 Tex. 665, and 30 N. Y. 344, and cases cited in the
Donoho V. Fish, 58 Tex. 164, where next sentence ; Baldwin v. Tynes,
the question whether a managing 19 Abb. Pr. 32; Ely v. Hair, 16 B.
partner could so assign was said Mon. 230 ; Sheldon v. Smith, 28 Barb,
not to arise " because it does not ap- 593; Roberts v. Shepard, 2 Daly, 110;
pear that he had not authority." McNutt u Strayhorn, 39 Pa. St. 269 ;
Whether the general partner, even Baldwin v. Tynes, 19 Abb. Pr. 32.
of a limited partnership, can make an

347

§ 339. CONDUCT OF THE BTTSINESS.

directed their attorney to draw the papers. A day or two
afterwards, at 8 A. M., B. executed the assignment, and at
10 A. M. K. made a chattel mortgage to the plaintiff to
secure a partnership debt. It was held that the assignment
executed by one partner, having been agreed upon by both,
was valid, and the power to make the mortgage was gone.*
The ratification cannot relate back to interfere with interven-
ing liens. ^ The failure of the non-assenting partner to re-
pudiate when told of the assignment, and his allowing the
assignee to make sales of the firm property, was held not
to estop him to resist replevin by the assignee to get posses-
sion of partnership property in his hands. '

If one partner cannot so assign before dissolution, a forti-
ori he cannot after it.* But where one partner sells his inter-
est in the firm to a third person, the other partners may
afterwards assign for benefit of creditors, for the sale was a
dissolution. The retired partner has no further authority,
and his vendee has only a claim to a share of the surplus after
payment of debts.*

An attempted assignment by one partner is an unau-
thorized exclusion of the copartner which will justify the
appointment of a receiver and an injunction against the
assignee.*

1 In Steinhart v. Fyhrie, 5 Montana, Coleman v. Darling, 66 Wis. 155. And
463, it was said that the act was so see Loeb v. Pierpoint, 58 Iowa, 469 ;
important and solemn that public 43 Am. Eep. 122; and Steinhart v.
policy requires that the authority be Fyhrie, 5 Montana, 463. But see
given in advance, and under such Adee v. Cornell, 93 N. Y. 573.
circumstances that no question can ' Brooks v. Sullivan, 32 Wis. 444.
arise as to it; and in Holland v. See, also, Steinhart v. Fyhrie, 5
Drake, cited in the next note, it was Montana, 463.

said that a ratification could not re- ^ Deckert v. Filbert, 3 Watts & S.

late back, because attaching credit- 454 ; Holland v. Drake, 29 Oh. St. 441 ;

ors might go on in ignorance of it Mygatt v. McClure, 3 Head (Tenn.),

and perhaps be finally defeated by 495.

the ratification and left to pay costs ; 6 Clark u. Wilson, 19 Pa. St. 269;

a reason which requires a public and Clark v. McClelland, 3 Grant's Cas.

not a secret ratification. 31.

2 Stein V. La Dow, 13 Minn. 413; sOrmsbee v. Davis, 5 R, I. 443.
Holland v. Drake, 29 Oh. St. 441;

348

PARTICULAR POWERS BEFORE DISSOLUTION. § 340.

§ 340. Absence of copartner an authorization. — Where,
however, the other partner is absent, and his whereabouts
is unknown, or if very distant and the emergency is such
that he cannot be communicated with, such power is deemed
to exist in the resident partner. Thus, where the other
partner had absconded under such circumstances as to im-
ply an abandonment, and consent to the exclusive dontrol
of the other, the latter may assign in the firm name for .
the benefit of creditors.' Or where he was absent, no one
knew where, and was believed to have absconded, and a
crisis had to be met, the assignment was held good, though
the absentee afterwards returned.^ So where the other
partners are absent at a great distance, as in Europe, leav-
ing the assignor as the sole manager in this country, and
an exigency arises, his assignment for the benefit of credit-
ors to prevent involuntary preferences is valid.'

But mere temporary absence of the other partner from the
state is not sufScient.* Where the absentee lived only seventy-five
miles away, with telegraph and daily mail communication between
the towns, the assignment is unauthorized.' Though the absentee

iNewhall v. Buckingham, 14 111. Gregory, 29 Barb. 560 (the action of

405 ; National Bk. of Bait. v. Sack- the court of appeals on this case is

ett, 3 Daly, 395 ; Welles v. March, 30 stated in Wells v. Marsh, 30 N. Y.

N. Y. 344; Kemp d. Carnley, 3Duer, 344, 350).

1; Palmer v. Myers, 43 Barb. 509; « Dunklin v. Kimball, 50 Ala. 251;

29 How. Pr. 8; Sullivan v. Smith, 15 Petteeu Orser, 6Bosw. 123; 18 How.

Neb. 476; 47 Am. Rep. 354; Deckard Pr. 442, where the assignment was

V. Case, 5 Watts, 23; 30 Am. Dec. with preferences. But in McCul-

287 ; Rumery v. McCulloch, 54 Wis. lough v. Sommerville, 8 Leigh, 415,

565. See, also, Dupuy v. Leaven- an assignment with preferences by

worth, 17 Cal. 263. But not even a managing partner was upheld, the

then with preferences. Wetter v. other partners being resident in an-

Schlieper, 4 E. D. Smith, 707 ; 15 other state. And whei-e the articles

How. Pr. 268. provided for equal payment to all

2 Petition of Daniels, 14 R. I. 500. creditors, an assignment with prefer-

8 Harrison v. Sterry, 5 Cranch, 389 ; ence by one partner, in violation

Anderson v. Tompkins, 1 Brock. 456; thereof, was held void in Marsl^ v.

Robinson v. Crowder, 4 McCord (S. Bennett, 5 McLean, 117.

Ca.), L. 619 ; 17 Am. Dec. 763 ; Forbes 8 See Hunter v. Waynick, 67 Iowa,

V. Scannell, 13 Cal. 243 ; Williams v. 555.
Frost, 27 Minn. 255; Robinson v.

§ 341. CONDUCT OF THE BUSINESS.

is the most active member of the firm, and his absence was in an-
other state, and was unexpectedly protracted, and the partnership
was deeply involved and creditors were urging payment, these
facts will not support the assignment, for there is no extraordinary
emergency here.'

An assignment in good faith by one partner in the other's ab-
sence, to prevent one creditor from seizing the entire assets, has
been upheld.'

BILLS AND NOTES.

§ 341. In trading firms. — One of the most ordinary inci-
dents of the business of any trading firm, and closely allied to
the power to borrow and to buy on credit, is the power to
make, draw, accept or indorse mercantile paper; hence, as part
of the usual routine of business, each partner in a trading
firm has authority to sign the name of the firm to negotiable
paper.' <

In Davison v. Robertson, 3 Dow. 218, each of two partners gave
a bill in the name of the firm without the knowledge of the other
for the same debt, and the firm was held liable on both to a bona
fide holder.

In Wilson v. Richards, 28 Minn. 337, a partner who had bought
lumber from his firm gave his note to it, and the firm indorsed the
note and got it discounted. A renewal of the note by stich part-
ner and indorsement of the firm was held to be within the scope
of his authority, and not using the firm name for his private debt,
for it was a debt of the firm.

1 Stein V. La Dow, 13 Minn. 413. 318 ; Brown v. Kidger, 3 H. & N.

2 In Graves v. Hall, 33 Tex. 665, 853; Stephens w. Reynolds, Sid. 513;
but here the other partner made no Ex parte Darlington Banking Co. 4
complaint. And see Lasell v. Tucker, DeGr. J. & S. 581 ; Sutton v. Gregory,
5 Sneed, 33. The right of a surviving 2 Peake, 150 ; Lewis v. Eeilly, 1 Q.
partner stands on a different basis, B. 349; Swan v. Steele, 7 East, 310; 3
for he is in legal contemplation the Smithy 189 ; Winship v. Bank of U. S.
sole owner, and his power to assign 5 Pet. 589;Kimbro v. Bullitt, 33 How,
for creditors is generally conceded. 256 ; Cocke v. Branch Bank, 8 Ala.
See § 732. 175 ; Howze v. Patterson, 53 id. 305

3 Pinkney v. Hall, Ld. Baym. 175 (25 Am. Rep. 607) ; Wagner v. Sim-
(1 Salk. 136) ; Smith v. Bailey, 11 mons, 61 id. 143 ; Palmer v. Scott, 68
Mod. 401; jEJcjjarfeBonbonus, 8Ves. id. 380; Storer v. Bjnkley, Kirby
540; Davison v. Robertsoii, 3 Dow. (Conn.), 147 ; Champion t). Mumford,

350

PARTICULAB POWERS BEFORE DISSOLUTION. § 341.

And the power to renew a note is the same as the power to give
one,' but is no greater; and as one partner cannot enlarge an ex-
traneous liability, be cannot renew an accommodation note where
the firm is surety, or extend the time,' or alter the note of a non-
trading firm.'

But a partner can alter the note of a trading firm by inserting a
place of payment,* or destroy it and substitute another,' and can
waive demand and notice.' And where debts-of a prior firm have
been assumed, the same right to give notes for them exists as for
other debts.'

The power must be exercised, however, in the usual
course of business, otherwise a payee knowing this cannot
hold the firm upon it.

Thus, in Whitman v. Leonard, 3 Pick. 177, one of two partners
had absconded, and thereupon the other partner gave to a creditor
a new note in the name of the firm, payable on demand, in place
of a note not due, to enable him to attach, and this was held not
in the usual course of business, and the attachment would be set
aside at the instance of other creditors. Although, if such ab-
sconding bfe a dissolution," the creditor had no notice of the dissolu-

id. 170; Pease v. Cole, 53 Conn. 53; 118; Crosthwalt v. Ross, 1 Humph,

Dow V. Phillips, 24 111. 249; Walsh 23, 29 (34 Am. Dec. 613); Crozier v.

V. Lannan, 98 id. 27 (38 Am. Rep. 75); Kirker, 4 Tex. 253 (51 Am. Dec. 724);

Gregg V. Fisher, 3 111. App. 261 ; Michael v. Workman, 5 W. Va. 391.

Sherwood v. Snow, 46 Iowa, 481 (26 For the power to indorse as involved

Am. Rep. 155) ; Deitz v. vRegnier, 27 in the power of disposition of paper

Kan. 94; Lindh v. Crowley, 29 id. belonging to the firm, § 401. As in-

756; Smith v. Turner, 9 Bush, 417; volved in a power to give security,

Judge V. Braswell, 13 Bush, 67, 75 § 349.

(26 Am. Rep. 185); Coursey v. Baker, iTilford v. Ramsey, 37 Mo. 563.

7 Har. & J. 28 ; Richardson v. French, 2Milmine v. Bass, 29 Fed. Rep.

4 Met. 577; Smith v. Collins, 115 633; Tilford v. Ramsey, 37 Mo. 563,

Mass. 388; Stimson v. Whitney, 130 567.

id. 591; Carrier v. Cameron, 31 Mich. 3 Horn v. Newton City Bank, 32

478; Faler v. Jordan, 44 Miss. 283; Kan. 518.

Holt «. Simmons, 16 Mo. App. 97; ^Pahlman u. Taylor, 75 III. 639.

Feurt V. Brown, 23 id. 332; Roney v. 'Moseley v. Ames, 5 Allen, 168.

Buckland, 4 Nev. 45 ; Dow v. Moore, « See g§ 397-400.

47 N. H. 419; Benninger v. Hess, 41 7 See § 347.

Oh. St. 64 ; Hoskisson v. Eliot, 02 Pa. 8 Which was denied in Arnold v.

St. 393 ; Moorehead v. Gilmore, 77 id. Brown, 34 Pick. 89.

351

§ 842. CONDUCT OF THE BUSINESS.

tion, for notice is either not necessary in sucli case or is implied in
the nature of the transaction.

In Hicks v. Russell, 72 111. 230, one firm gave a note secured by
the individual mortgage of one partner to another firm; then both
firms dissolved without giving notice of dissolution, and the partner
of the maker firm who gave the mortgage made new notes in the
firm's name and delivered them to one of the payee firm, who released
the mortgage. This was held not in the ordinary course of trade and
neither firm is bound; and there is no power to issue a, note or bill
in blank, as where an acceptance is issued without any drawer, and
only a bona fide buyer of such paper after the insertion of the name
could sue upon it.'

§ 34:2. The fact that the articles forbid any or all partners
to make negotiable paper does not affect the validity of the
paper in the hands of a payee who was not aware of the
restriction, as we have seen, § 322.^

Even if a partner draw bills on the firm in fictitious names
and i-aise money for the firm by,using its name on such
paper, all the partners are liable.'

In Burgess v. Northern Bank of Ky. 4 Bush, 600, a draft was
drawn in the forged name of E. B. as drawer, on the firm of J. &
B., and accepted by J., who then forged the name of E. B. as
payee and procured the plaintiff bank to discount it, arid then, by
forging a check in E. B.'s name, drew from the bank the proceeds
of the discount. It was urged that the bank had no title because it
claimed through a forged indorsement, and that a firm is not liable
•for the crime of a partner; but it was held that as a partner issued
the- paper the firm was estopped to deny the genuineness of the
indorsement.

Where partners own property as tenants in common and not as
partnership property, the implied power of a partner does not ex-
tend to making negotiable paper in relation to it. Thus, one part-
ner cannot bind the firm by a note for a premium of insurance
upon a vessel ®wned as tenants in common.*

1 The power to indorse over paper 2 Bloom v. Helm, 53 Miss. 21 ; Ben-
made to the firm involves the power ninger v. Hess, 41 Oh. St. 64.
of disposition and is treated under 'Tliicknesse «. Bromilow, 2 Cr. &
§ 401. Hogarth v. Latham, 3 Q. B. J. 435.

D. 643. <Lime Eock F. & M. Ins. Co. v.

Treat, 58 Me. 415.
852

PARTICULAR POWERS BEFORE DliiSOLUTION. § 343.

§ 343. In non-trading firms.— The general rule in non-
trading partnerships is that no authority to sign mercantile
paper is implied, and it makes no difference that it was for
the benefit of the firm. Nevertheless, there are a number
of cases in which mercantile paper has been held binding
on such firms. The test seems to be whether the paper is
essential to carry into effect an ordinary purpose for which
the partnership was formed. By such test it would seem
that a note to pay a debt or to borrow money, even though
it be borrowed to pay a debt or make a purchase, may not
be binding without "proof of assent of the other partners or
a usage of such business. Yet no doubt each partner can
draw a sight check ^ on the firm's deposits or a draft on a
debtor of the firm, or indorse over paper which belongs to
and is payable to the firm. But each partnership must
stand largely on the nature of its peculiar business, and no
rule of universal application is possible.

■ In Pooley v. Whitmore, 10 Heisk. 629 (27 Am. Eep. 733), it was
held error to charge a jury that if the nature of the business was
such that a partner might or might not sign negotiable paper, the
partners are liable upon a note made by one partner in the hands
of a bona fide holder. In other words, in case of doubt the power
is not deemed to exist.

In Sherman v. Kreul, 42 Wis. 33, it was held that a power in a
non-trading firm to buy on credit does not involve the power to
bind by a negotiable note, and hence, in an action on a note given
by one partner. in the firm name for a span of horses, a charge to
the jury that if the copartners had authorized the purchase on
credit the verdict should be for the plaintiff is erroneous.^

It makes no difference that the consideration of the note was
applied to the benefit of the firm or to pay a debt owed by it. If

iThat he can do so in a trading flrm, as a firm of lawyers; cannot

firm, Forster v. Mackreth, L. R. 3 issue it.

Ex. 163; Bull «. O'Sullivan, L. R. 6 2 The same ruling was made in

Q. B. 209; Commercial Bank v. Bradley v. Linn, 19 111. App. 333;

Proctor, 98 HI. 558. It must be re- and also in Skillman v. Lachman, 38

membered that a post-dated check Cal. 199, w'here, however, the note

is equivalent to a tirne draft, and a was for three per cent, a month,
member of a strictly non-trading

Vol. I— 23 353

§ 343. CONDUCT OF THE BUSINESS.

giving a note is outside the scope of the business, the note is not
binding unless authority to issue it was given or is implied from
the usage of the firm or the business.' Hence, if the firm can be
sued upon the original consideration, damages upon the protested
paper cannot be included in the recovery.'

In Horn v. Newton City Bank, 32 Kan. 518, as a partnership in
the operation of a threshing machine is not a trading one, an
alteration of the purchase money note given for the machine, by
substituting another payee by consent of one partner, was held not
binding, and to be a release of the other partner from the note.'

A partner in a farming partnership cannot bind the firm
by a note;* nor of a firm of tavern keepers;^ nor one of a
steam saw- mill firm.* So of a partnership in a patent to
clarify sugar, even though bound for the consideration of
the note.^ And if the partnership is to buy and sell to In-
dians in the Indian territory, this was held of itself to show-
that a partner had no power to make a note.*

1 Hedley v. Bainbridge, 3 Q. B. could give a note for a stove ; and

316, of a law firm to pay a debt due Doty v. Bates, 11 Johns. 544, that

to a client. Glreenslade ■;;. Dower, 7 the note of a firm engaged in tan-

B. & C. 685, of a farming partner- ning. currying and shoemaking was

ship to pay a debt for the property, presumed to be authorized. Lanier

Smith V. Sloan, 37 Wis. 285; 19 Am. v. McCabe, 3 Fla. 32, 40; 48 Am.

Rep. 757, of a law firm to pay office Dec. 173, hints that the note might

rent which they owed. Bays v. Con- have been good if it had been to pay

ner, 105 Ind. 415, for a loan to pay a a debt.

debt. Sheewood, J., in Deardorf v. ^Hermanos v. Duvigneaud, 10 La.

Thacher, 78 Mo. 128, 133; 47 Am. Ann. 114.

Eep. 95 ; Breckinridge v. Shrieve, 4 3 Greenslade v. Dower, 7 B. & O.

Dana, 375, to borrow to pay a debt. 635 ; 1 Man. & Ry. 640.

Benton v. Roberts, 4 La. Ann. 217, * Greenslade v. Dower, 7 B. & C.

of a planting partnership to pay for 635 ; Benton v. Roberts, 4 La. Ann.

the land held in common. Prince u 216; Prince v. Crawford, 50 Miss.

Crawford, 50 Miss. 344, of a planting 344 ; Hunt v. Chapin, 6 Lans. 139;

partnership for necessaries. Ulery Ulery v. Ginrich, 57 111. 581.

V. Ginrich, 57 111. 531, of a farming ^Cocke v. Branch Bank at Mobile,

partnership in part to pay debts. 3 Ala. 175.

Hermanos v. Duvigneaud, 10 La. « Lanier v. McCabe, 3 Fla. 33; 48

Ann. 114; McCord v. Field, 37 Up. Am. Dec. 173.

Can. C. P. 391. But Hickman v. ' Hermanos v. Duvigneiaud, 10 La.

Kunkle, 27 Mo. 401, held that one, of Ann. 114.

livery-stable keepers, prima facie, 8 Cargill v. Corby, 15 Mo. 435.

354

PARTICULAR POWERS BEFORE DISSOLUTION. § 344.

So a firm in tlie dry goods business, wliicli also carries on a plan-
tation, is as to the latter a non-trading firm, and a note given to
carry on the plantation is presumptively unauthorized, unless in
the hands of a bona fide buyer.' So of the note of a partnership
in the operation of a furnace, given for the purchase of a distillery.'
So of a note for a lightning rod to the mill.'

§ 344. There are, however, a number of cases holding
that a note for the purchase of supplies by a member of a
non-trading partnership is valid.

In Johnston v. Dutton, 27 Ala. 245, a purchase on credit by
one partner in a steam saw-mill firm of groceries and provisions
necessary for the hands, and giving a note therefor, is within the
scope. So in Gavin v. Walker, 14 Lea, 643, a note to borrow money
for supplies was held binding on a firm formed to grade a railroad
line.

In Miller v. Hines, 15 Ga. 197, 201, it was said that a note given
by a member of a law firm for the purchase of law books for the
firm would be binding.

And in Crosthwait v. Ross, 1 Humph. 23 (34 Am. Dec. 613), the
same was held of a purchase by note of medicines, instruments,
etc., by one of a medical firm.

In Newell v. Smith, 23 Ga. 170, proof that a note of a tannery
firm was given by one partner for the hire of labor was held to re-
move "the onus of proving authority.

In Pease v. Cole, 63 Conn. 53, 72, it was said that proof that the
firm got the benefit of the note would perhaps tend to show that
it was the firm's note.

In Hickman v. Kunkle, 27 Mo. 401, 404 (a case overruled in sev-
eral respects in 78 id. 128), it was said that a note by a member of
a iivery-stable firm for $71 for stoves was not necessarily outside
the scope, as it might need one or more stoves for heating, whereas
for a purchase of fifty or a hundred stoves would be clearly out-
side.

And in Levi v. Latham, 15 Neb. 509 (48 Am. Rep. 361), also a
livery-stable firm, the court, in ruling the note to be void where
the signing partner kept the proceeds, seem to say that if the

iHunt». Chapin, 6 Lans. 139. 'Graves v. Kellenberger, 51 Ind.

« Waller v. Keyes, 6 Vt. 257. 66, the other partner owned the mill.

S55

v^

§ 345. CONDUCT OF THE BUSINESS.

holder could show that the note is necessary to carry on the busi-
ness, this would show power to make it. ,

In Voorhees v. Jones, 29 N. J. L. 270, the note of a firm whose
business was a contract to build a railroad was held binding on all
the partners.

In Davis v. Cook, 14 Nev. 265, 2^3, the opinion o£ the court is
to the effe^that a power to purchase being given involves the
power to^p'e notes for the purchase, where, as in the example put
by the cdart, the purchase of a hotel, the transaction is so large as
to involve deferred payments; but the actual controversy in the
case was over the purchase of a stock to open a branch store,
clearly a trading firm; and so of Brooke ». Washington, 8 Gratt.
248, of notes by managing partners of an iron manufacturing
partnership to buy timber land to get fael from. The notes were
held valit. The power to buy the land seems to have been as-
sumed, spd the only question was on whose credit it was bought.

In De'ardorf ». Thacher, 78 Mo. 128, 135 (47 Am. Eep. 95), it was
said by Henkt, J., that if the holder could have shown that the
consideration of the note was articles or labor necessary in the
business of the firm, the firm would have been bound; whereas
Sherwood, J., p. l33, said that the note would not be binding, even
if given for the purposes of the firm and though the firm would be
charged with the debt created.

In Brayley v. Hedges, 52 Iowa, 623, one of a firm of agents to
sell machines gave a note to pay a debt, and it was held valid. So
in Van Brunt v. Mather, 48 Iowa, 503, of a storage, forwarding
and collecting firm.

§ 345. : doctrine of bona fide buyer does not cure. —

The doctrine of bona fide buyer does not apply to the pur-
chaser of the note of a non-trading firm. If there was no
authority to make the note, the payee cannot convey a
greater title than he had, and the buyer takes it at his peril,
for he must inquire whether the nature of the business iri-
volves the power to issue mercantile paper, and if it does
not he has, by law, notice of that fact.^

1 Dickinson u.Valpy, 10 B. & C. 128; v. Thompson, 33 La. Ann. 196; Leviw.
Cocke V. Branch Bank, 3 Ala. 175; Latham, 15 Neb. 509 (48 Am. Kep.
Pease v. Cole, 58 Conn. 53 (a very 361); Deardorf v. Thacher, 78 Mo.
carefully considered case); Benedict 128 (47 Am. Rep. 95); Prince v. Craw-

356

PARTICULAR POWERS BEFORE DISSOLUTION. § 346.

As in case of all other powers, want of implied power is suppliel
by previous express authorization or subsequent ratification ; hence
if T. agrees to convey land to E. & S., partners, payable in their
notes, a tender of notes signed by E., in the firm name, is a good
tender.' But an express authority given to a partner to indorse
over notes received in payment, in order to turn them into money,
will not bind the firm by an accommodation indorsement outside
the scope of the business, in the hands of an innocent holder for
value."

§ 34:6. Joint and several notes. — As a partner represents
the firm, and is not the agent of each partner separately, it
follows that he has no implied power to bind by a joint and
several note, or to bind each individually, or any number
less than all.'

Such note, however, whether made expressly as a joint
and several note, or using the phrase " I promise " with the
individual names appended, is, if possible, constr,ued as a valid
joint note; * but where the signatures are so placed that the
apparent interests and legal ' obligations of the partners
would be different, as where one appears as maker, and the
other as surety, it is doubtful whether the non-assenting one
is bound at all.*

The signing partner, however, is bound severally as well
as jointly, though the firm name be signed; ^ but though the
words "I promise" signed by several, import a joint and
several promise, yet if the signature is in a firm name, the

ford, 50 Miss. '34A ; Lynch v. Thomp- homestead exemptions in individual

son, 61 id. 354; Judge v. Braswell, 13 property or any other personal priv-

Bush, 67 (26 Am. Rep. 185). See, ilege. Terrell v. Hurst, 76 Ala. 588.

also, Gi-eenslade v. Dower, 7 B. & C. ^ Maclae v. Sutherland, 3 El. & B.

635; Williams v. Thomas, 6 Esp. 18. 36; Doty v. Bates, 11 Johns. 544;

1 Smith V. Jones, 13 Me. 332. Sherman v. Christy, 17 Iowa, 323.

2 Hotchkiss V. English, 4 Hun, 369 ; 6 Stroh v. Hinchman, 37 Mich. 490.
6 N. Y. Supreme Ct. 658. 6 Elliot v. Davis, 3 B. & P. 338;

sPerringu Hone, 4 Bing. 28, 32; Sherman v. Christy, 17 Iowa, 322;
2 C. & P. 401 ; Sherman v. Christy, Fulton v. Williams, 11 Cush. 108,
17 Iowa, 323, 834; Marlett v. Jack- 109; Snow v. Howard, 35 Barb. 55.
man, 3 Allen, 287, 291 ; Snow v. See, also, Gillow v. Lillie, 1 Bing. N.
Howard, 35 Barb. 55. Or to waive Gas. 695.

357

§347.

CONDUCT OF THE BUSINESS,

note is joint only, and even the signer himself cannot be
sued alone. ^

But if on a joint and seyeral note, signed in the firm name, the
name of a third person is also added, the words jointly and sev-
erally apply to bind the firm, as one person, and the other signer as
another person severally, but not the partners severally apart from
each other.'

The firm is liable, but only jointly, whether the note be " I prom-
ise " and signed by " A. B." or " A. B., C. D., E. F.; " = or we jointly
and severally promise for the firm.*

§ 347. Bill or note for separate debt. — A partner cannot
bind the firm by giving a note to pay his separate debt, un-
less authorized by his copartners, and this fact is a perfect
defense except as against a bona fide indorsee of the cred-
itor. Such a note is a gross fraud on the copartners.*

1 Ex parte Buckley, 14 M. & W.
469; 1 Ph. 563 (overruling Hall v.
Smith, 1 B. & C. 407); s. 0. as Ex
parte Clarke, DeGex, 153; (reversing
s. C. as Ex parte Christie, 3 M. D. &
DeG. 736) ; Browm v. Fitch, 33 N. J.
L. 418; Doty v. Bates, 11 Johns. 544;
Van Tine v. Crane, 1 Wend. 534.

2 Van Tine v. Crane, 1 Wend. 534;
Ue Holbrook, 3 Low. 359.

» Gal way v. Matthew, 1 Camp. 403 ;
Ex parte Buckley, 14 M. & W. 469 ;
1 Ph. 563 ; Ex parte Clarke, DeG. 153,
reversing Ex parte Christie, 3 M. D.
& DeG. 736; Doty v. Bates, 11 Johns.
544.

^Maclaeu. Sutherland, 3 E. & B.
1 ; Se Holbrook, 3 Low. 359 ; Brown
V. Fitch, 38 N. J. L. 418; Van Tine
V. Crane, 1 Wend. 534; Snow v.
Howard, 35 Barb. 55.

5 See, for example, Scott v. Dansby,
13 Ala. 714; Freeman v. Boss, 15
Ga. 353; Gray u. Ward, 18 111. 33;
Wittram v. VanWormer, 44 lU. 535 ;
Taylor v. HiUyer, 3 Blaokf . 433 (36
Am. Dec. 430); Hagar v. Mounts, 3

Blackf. 57, 361 ; Hickman v. Eeine-
king, 6 Blackf. 387 ; Flagg v. Upham,
10 Pick. 147, 148-9; Adams Bank r.
Jones, 16 id. 574; Roberts v. Pepple,
55 Mich. 367; Robinson u Aldridge,
34 Miss. 353; Klein v. Keyes, 17 Mo.
336; Ferguson u Thacher, 79 Mo. 511;
Davis V. Cook, 9 Nev. 134; Daven-
port V. Runlett, 3 N. H. 886 ; Will-
iams V. Gilchrist, 11 id. 585 ; Dob v.
Halsey, 16 Johns. 34, 39 (8 Am. Dec.
393); Williams i;. Walbridge, 3 Wend.
415; Gansevoort v. Williams, 14 jd.
133; Rustw. Hauselt, 9 Jones & Sp..
467 (affd. 76 N. T. 614); Gale v.
MiUer, 54 N. Y. 536; Atlantic
State Bank v. Savery, 83 N. T. 391
(a|fg. 18 Hun, 36) ; Cotton v. Evans,
1 Dev. & Bat. Eq. 384; Weed v.
Richardson, 3 Dev. & Bat. L. 535 ;
Miller v. Richafdson,' 3 Ired. L. 350 ;
Himelright v. Johnson, 40 Oh. St.
40 ; Baird v. Cochran, 4 S. & R. 397 ;
397; Porter v. Gunnison, 3 Grant's
Cas. 397; McKinney v. Bradbury,
Dallam (Tex.), 441 ; Van Alstyne v.
Bertrand, 15 Tex. 177 ; Poindexter v.

358

PARTICULAR POWERS BEFORE DISSOLUTION. § 347.

Nor has he any right to issue the note of a new firm to
pay the debts of a prior firm composed in part of the same
individuals, whether with or without new partners;* or for
a loan to himself or other individual purpose.^

But if the new firm assume the debts of the old firm, one partner
may give a note for them.' And a new firm getting goods pur-
chased before by one partner and agreeing to take and pay for them
assumes the debt for a valuable consideration, and one partner can
give a note for the price.*

That a note for a separate debt includes a small firm debt does
not make it valid; ° but the note can be enforced to the extent of
the valid consideration, there being no fraud."

A power to use the fitm name for private purposes is implied, if •
necessary to perfect a joint transaction; as where partners divided
notes payable to the firm, each can indorse over to himself the

Waddy, 6 Munf. (Va.) 418 (8 Am. 2 Newman u Richardson, 4 Woods,

Dec. 749); Beals v. Sheldon, 4 Up. C. C. 81; 9 Fed. Rep. 865; Rutledge

Can. Q. B. (Old Ser.) 303. And see v. Squires, 23 Iowa, 53; Be Forsyth,

§ 1038. And accommodation parties 7 Bankr. Reg. 174; Potter v. Dillon,

upon the paper are not estopped to 7 Mo. 228 ; 37 Am. Dec. 185 ; Bank of

dispute its validity in the hands of Commerce v. Selden, 3 Minn. 155;

the creditor of one partner. Garland Stainer v. Tysen, 3 Hill, 279 , Noble

V. Jacomb, L. R. 8 Ex. 316. And see v. McClintock, 3 W. & S. 153; GuUat

Russell V. Annable, 109 Mass. 73 (12 v. Tucker, 3 Cranch, C. C. 33.

Am. Rep. 165) ; but see § 428. 3 Randall v. Hunter, 86 Cal. 518;

1 Shirre£E v. Wilks, 1 East, 48; Hes- Shaw v. McGregory, 105 Mass.. 96.

ter «. Lumpkin, 4 Ala. 509; Bryan w. ^Markham v. Hazen, 48 Ga. 570;

Tooke, 60 Ga. 437 ; Waller v. Davis, Morris v. Marqueze, 74 id. 86 ; Silver-

59 Iowa, 103 ; Elkin v. Green, 13 man v. Chase, 90 111. 37 ; Johnson v.

Bush, 612 ; Spaunhorst v. Link, 46 Barry, 95 id. 483.

Mo. 197 ; Howell v. Sewing Machine 6 Bell v. Faber, 1 Grant's Gas. (Pa.)

Co. 13 Neb. 177 ; Guild v. Belcher, 119 31 ; King v. Faber, 32 Pa. St. 21.

Mass. 257. And see further, §§557,558. « Wilson v. Lewis, 2 M. & G. 197;

Contra, if composed of part of the s. C. as Wilson v. Bailey, 9 Dowl, 18;

same individuals without new part- Gamble v. Grimes, 2 Ind. 392; Guild

ners, Foster v. Hall, 4 Humph. 346; v. Belcher, 119 Mass. 357; EUston u

but where the new firm is indebted Deacon. L. R. 2 C. P. 30, but here the

to the old and to its members, a note court amended (jhe declaration by

by one partner in the name of the adding a count for the consideration,

new to a creditor of the old was held Perhaps this would not be so in case

valid. Hester v. Lumpkin, 4 Ala. of collusion., See Snyder v. Luns-

509. ford, 9 W. Va. 323, given under § 410.

§ 348, CONDUCT OF THE BUSINESS.

notes allotted to him.' And on the same principle, if a firm of
mechanics assign a claim to one partner, he can use the firm's name
to perfect a lien on the debtor's property.'

§ 34^8. subseqtTient misappropriation distinguished. —

If a partner borrow money or buy goods for the firm on a note
made by the firm, or lead the lender or seller to believe that
the transaction is for the firm, the subsequent misappropri-
ation of the avails by such partner does not affect the payee's
right against the firm, where borrowing or buying is within
the scope of the firm's business.' And so if a person signs
as surety for the firm at the request of a partner, supposing
he is signing for the firm, he is a creditor of the firm, though
such partner misappropriates the note or its proceeds.*

1 Mechanics' Bank v. Hildreth, 9 Barb. 290 ; Miller v. Manice, 6 Hill,
Gush. 356. 114, 119; Wharton v. Woodburn, 4

i Jones v. Hurst, 67 Mo. 568 ; Bus- Dev. & Bat. L. 507 ; Dickson v. Alex-
fleld t». Wheeler, 14 Allen, 139. ander, 7 Ired. L. 4; Kleinhaus v.

8 Bond t;. Gibson, 1 Camp. 185; Genei-ous, 25 Oh. St. 667.; Haldeman
Kimbro v. Bullitt, 23 How. 256; v. Bank of Middletown, 28 Pa. St.
Winship v. Bank of U. S. 5 Pet. 529, 440; Windham Co. Bank v. Kendall,
566;Howzet'. Patterson, 53 Ala. 205; 7 R. I. 77; Crosthwait v. Ross, 1
25 Am. Rep. 607 ; Carver u. Dows, 40 Humph. 23, 29; 34 Am. Dec. 613;
111. 374; Stark v. Corey, 45 id. 431 ; Venable v. Levick, 2 Head, 351; Van
Gregg V. Fisher, 3 111. App. 261 ; Da- Alstyne v. Bertrand, 15 Tex. 177 ;
Tis V. Blackwell, 5 id. 32; Rend v. Gilchrist v. Brande, 58 Wis. 184;
Boord, 75 Ind. 307 ; Sherwood v. Simpson v. McDonough, 1 Up. Can.
Snow, 46 Iowa, 481 ; 26 Am. Rep. 155 ; Q. B. 157.

Lemon v. Fox, 21 Kan. 152, 159; 4Capelle v. Hall, 12 Bankr. Reg.
Lindh v. Crowley, 29 id. 756 ; Warren i ; Deitz v. Regnier, 27 Kan. 94 ; Lit-
V. French, 6 Allen, 317; Hay ward v. tell v. Fitch, 11 Mich. 535; Bank of
French, 12 Gray, 453 ; Littell v. Fitch, St. Albans v. Gilliland, 23 Wend. 311 ;
11 Mich. 535; Sylverstein v. Atkin- 35 Am. Dec. 566; Stockwell v. Dill-
son, 45 Miss. 81 ; Bascom v. Young, ingham, 50 Me. 442 ; Wilkins v.
7 Mo. 1 ; Bank v. St. Jos. Lead Co. 12 Pearce. 5 Den. 541 (aff'd in 3 N. Y.
Mo. App. 587 ; "Wagner v. Freschl, 56 469). Though the* note was under
N. H. 495; Church v. Sparrow, 5 seal, Wharton i;. Woodburn, 4 Dev. &
Wend. 323 ; Whitaker ■;;. Brown, 16 Bat. L. 507 ; Purviance v. Sutherland,
id. 505 ; Onondaga Co. Bank v. De 2 Oh. St. 478. But whether a surety
Puy, 17 id. 47; Bank of St. Albans v. who has not paid a sealed note can
Gilliland, 23 Wend. 311 ; 35 Am. Dec. claim thewant of authority apparent
566 ; National Bank v. Ingraham, 58 on the face of the paper, see § 423.

360

PARTICULAR POWERS BEFORE DISSOIsUTION. § 349,

lu Stocbwell V. Dillingham, 50 Me. 442, D. advanced Ms note to
a person represented by one of the partners as a person who had
loaned himmonej'- to pay bills of the firm, and now wanted it back.
D. may properly suppose the person's claim to be a debt of the
firm. And if a partner borrows for the use of the firm, if not ex-
pressly on his individual liability, it is a firm debt and D. can hold
the firm.

§ 349. Signing firm name for security or accommodation.

A partner has uo implied authority to use the name of the
firm as security for others. It is no part of the business of
a partnership or the agency of a partner to guaranty the
debts of others or to lend their credit by giving accommo-
dation paper or going surety, and such act by one partjier
without the consent of the others is a fraud on them; and
a payee of a bill or note who knows that the name is signed
as surety by a partner is not a hona fide holder, and cannot
recover against the partnership/ even though reasonable

1 Crawford v. Stirling, 4 Esp. 207; Redlon v. Churchill, 73 M6. 146 (40

Duncan v. Lowndes, 3 Camp. 478; Am. Rep. 345); Hopkins v. Boyd, 11

Brettel v. Williams, 4 Ex. 633.; Md. 107 ; Sweetser v. French, 3 Cush.

Hasleham v. Young, 5 Q. B. 833; 309 (48 Am. Dec. 666); Butterfield v.

Re Irving, 17 Bankr. Reg. 33; Rol- Hemsley, 13 Gray, 236 ; Natl. Bk. of

Eton V, Click, 1 Stew. 536; Mauldin Commonwealth v. Law, 127 Mass.

V. Branch Bk. at Mobile, 2 Ala. 503, 73 ; Freeman's Natl. Bk. v. Savery,

513; Kibbler v. De Forest, 6 id. 93; 137 id. 75; HefiEron v. Hanaford, 40

Lang V. Waring, 17 id. 145 ; Hendrie Mich. 305 ; Moynahan v. Hanaford,

V. Berkowitz, 37 Cal. 113; N. Y. 43 id. 339; Selden v. Bank of Com-

Tiremen's Ins. Co. v. Bennett, 5 merce, '3 Minn. 166; Osborne v.

Conn. 574 (13 Am. Deo. 109); Mix v. Stone, 30 id. 35; Osborne v. Thorap-

Muzzy, 38 id. 186; Mayberry v. Bain- son, 35 id. 329; Andrews v. Planters'

ton, 3 Harr. (Del.) 24; Marsh *. Bank, 7 Sm. & Mar. 193 (45 Am.

Thompson Natl. Bk. 2 111. App. 217 ; Dec. 300) ; Langan v. Hewett, 13 id.

Davis V. Black well, 5 id. 33; Beach 133; Sylverstein v. Atkinson, 45

V, State Bank, 2 Ind. 488; Whitmore Miss. 81; Bloom v. Helm,- 53 id. 31;

V. Adams, 17 Iowa, 567; Clark v. Kidder v. Page, 48 N. H. 380; Liv-

Hyraan, 55 id. 14; Silvers v. Foster, ingston v. Roosevelt, 4 Johns. 351

9 kan. 56; Wagnon v. Clay, 1 A. K. (4 Am. Dec. 273); Foot v. Sabin, 19

Mar. (Ky.) 357; Chenowith w. Cham- Johns. 154; Schermerhorn v. Scher-

berlin, 6 B. Mon. 60 (43 Am. Dec. merhorn, 1 Wend. 119; Laverty v.

145); Vredenburg v. Lagan, 38 La. Burr, 1 id. 539; Boyd v. Plumb, 7

Ann, 941 ; Darling v. March, 23 Me. id. 309 ; Mercein v. Andrus, 10 id.

184; Eollins v, Stevens, 31 id. 454; 461; Joyce v. Williams, 14 id. 141;

361

g 349. CONDUCT OF THE BUSINESS.

and convenient for the purposes of the business; no mere
benefit can suspend a restriction so essential.^

The partner who signed the firm name without authority
is himself bound, the same as if he had signed his own
name.^

■^Vilson V. Williams, 14 id. 146 (28 stacle to commerce, Hemming v.
Am. Deic. 518); Stall v. Catskill Prescott, 3 Rich. (S. Ca.) L. 307 (45
Bank, 18 id. 466 (aff. s. O. 15 id. 864); Am. Dec. 766); Ex parte Gardom,
Gansevoort v. Williams, 14 id. 133; 15 Ves. 386. And if a firm has
Elliott V. Dudley, 19 Barb. 326; become surety, a partner cannot
Mechanics' Bank v. Livingston, 33 alter the contract, as by extending
id. 458; Fielden v. Lahens, 9 Bosw. the time, § 341. A sole manager
436 (3 Abb. Deo. Ill); Butler v, under no written articles and of pre-
stocking, 8 N. Y. 408; Chemung sumed unlimited authority was held
Canal Bank v. Bradner, 44 id. 680 ; authorized to bind the firm by recog-
Atlantio State Bk. v. Savery, 83 id. nizing an agent's notes, given as
291 (aff. 18 Hun, 36); Long v. Carter, security for a third person, in Odiorne
3 Ired. (N. Ca.) L. 238; Smith v. v. Mascy. 15 Mass. 39. In First
Loring, 3 Oh. 440 ; Gano v. Samuel, Natl. Bk. v. Carpenter, 41 Iowa, 518,
14 id! 593, 600 ; Sutton v. Irwine, 13 the question was submitted to the
S. & R. 13 ; Bell V. Faber, 1 Grant's jury whether the guarantying a
Cas. (Pa.) 31; Bowman v. Cecil customer's paper was within the
Bank, 3 id. 33 : MoQuewans v. Ham- scope of the business of a banking
lin, '35 Pa. St. 517; Kaiser v. Fen- firm. But see Selden v. Bank of
drick, 98 Pa. St. 538; Shaaber v. Commerce, 3 Minn. 166.
Bushong, 105 id. 514; Berryhill v. iBrettel v. Williams, 4 Ex. 633,
McKee, 1 Humph. 31, 37; Whaleyu where one of a firm of contractors
Moody, 2 Humph. (Tenn.) 493 ; Bank guarantied that a subcontractor
of Tenn. v. Saffarrans, 3 id. 597 ; would pay for goods delivered.
Scott u Bandy, 2 Head, 197; Pooley ^ Myatts v. Bell, 41 Ala. 333, 233;
V. Whitmore, 10 Heisk. 629 '(37 Am. Eliot v. Davis, 3 B. & P. 388; Rams-
Rep. 733); Huntington v. Lyman, 1 bottom ?;. Lewis, 1 Camp. 379; Owen
D. Chip. (Vt.) 488 (12 Am. Dec. 716); v. Van Uster, 20 L. J. C. P. 61; 10
Jones V. Booth, 10 Vt. 268; Tomp- C. B. 318; NichoUs v. Diamond, 9
kins V. Woodyard, 5 W. Va. 216; Ex. 154; First Natl. Bk. v. Carpen-
Avery v. Rowell, 59 Wis. 82 ; Harris ter, 34 Iowa, 483 ; Silvers v. Foster,
V. McLeod, 14 Up. Can. Q. B. 164 ; 9 Kan. 56 ; Fowle v. Harrington, 1
Henderson v. Carveth, 16 id. 324; Cush. 146; Wiggin ■;;. Lewis, 13 id.
Macklin v. Kerr, 28 Up. Can. C. P. 486 ; Brown v. Broach, 52 Miss. 536;
90; McConnell v. Wilkin.s, 13 Ont. Ferguson v. Tbacher, 79 Mo. 511;
App. 438 ; Stewart v. Parker, 18 New Merchant v. Belding, 49 How. Pr.
Brunswick, 233. Contra: that a 344; Parker ?;. Jackson, 16 Barb. 33;
partner has a right to sign the name Stiles v. Meyer, 64 Barb. 77 ; 7 Lans.
of the firm as accommodation, hold- 190 ; Hubbard v. Matthews, 54 N. Y.
ing the contrary- rule to be an ob- 43, 48 (13 Am. Rep. 562); Avery v.

363 ■

PARTICULAR POWERS BEFORE DISSOLUTION. § 351.

§ 350. The same principle applies to using the firm name as
security in other ways. Thus, signing it as security upon an ap-
peal bond for others is unauthorized, and the signer alone is bound.
Where the firm is prosecuting or defending a suit on its own be-
half, one partner can give necessary attachment or appeal bonds in
the firm name or procure sureties upon the credit of the firm; '^ but
where a firm is acting for other persons, as where attorneys are
prosecuting or defending an action for clients, one attorney cannot
bind his partners by agreeing to indemnify one who will become
surety on an injunction bond,' or to indemnify an officer for mak-
ing an attachment or arrest,^ or promise to pay a debt in order to
get the client out of jail.'

It has been held that, where a firm is a member of another firm,
a partner can bind it by a guaranty of a debt to be incurred by the
latter in the prosecution of its business; as where one of a stage
company guaranties that another company of which it is a mem-
ber will pay tolls.*

In Andrews v. Cougar,' it seems to have been held, where part-
ners own a majority of the stock of a corporation, that it is within
the scope of the powers of each to guaranty a note made by the cor-
poration to protect its stock, because for the common benefit, al-
though the articles of partnership forbade assuming liabilities
outside the business. The report, however, does not show whether
they owned the stock as a firm or individually, nor the business ot
the firm, or of the corporation, or how the note benefited the firm.

§ 351. Real transaction considered. — The form of a note,
however, is of the slightest prima facie evidence of the
true relation of the parties, for the actual debtor may appear
as surety, acceptor, indorser, etc., as well as maker. Hence,
where the partnership name appears as surety, but is not

Rowell, 59 Wis. 83 ; Wilsen v. Brown, 6 Princeton & Kingston Turnpike

6 0nt. App. 411. And see §§431, 691. Co. i;. Gulick, 16 N. J. L. 161, 169.

1 Charman v. McLane, 1 Oregon See Hodges v. Ninth Nat'l B'k, 54
339. Md. 406.

2 Down. Smith, 8 Ga. 551; Durant 7 Supreme Ct. U. S. 1881; 30 Am.
V. Rogers, 87 111. 508. Law Reg. N. S. 338; Lawyers' Coop.

3 White V. Davidson, 8 Md. 169. Book 36, page 90, not reported in the
* Marsh v. Gould, 3 Pick. 285. regular series. And see cases cited
5 Hasleham v. Young, 5 Q. B.. 833 ; with this under § 370.

Dav. & Mar. 700.

363

§ 351. CONDUCT OF THE BUSINESS.

really such, the actual nature of the transaction, and not its
apparent character, governs.

Thus if the firm name is indorsed on the note of a third
person by one partner apparently as security, but in fact for
a debt of or loan to the firm, all the partners are bound.'

Thus in TruUinger v. Corcoran, 81^ Pa. St. 395, Croft was fur-
nishing goods to defendants' firm, and purchasing the goods from
plaintiff, and, by arrangement of all parties, plaintiff furnished the
goods directly to the defendants, and were paid by defendants' notes
made to Croft's order. These notes were afterwards renewed by
Croft's notes made to his own order, on which the defendants' firm
name was indorsed by the acting partner, who gave as a reason
that he did not wish any more of the firm's paper to be out. This
was held sufficient, and that plaintiff was not put upon inquiry as to
the bona fides of the notes, although the defendants' name appeared
as accommodation, yet being in fact so for their own benefit.

So a partner in selling notes payable to the firm can guaranty
them,'' or under the borrowing power may exchange accommoda-
tion acceptances.'

Where the financial partner of defendants exchanged the
firm's note with N., who obtained money upon it from
plaintiff, as the partners are liable upon this, since plaintiff
had no notice of their credit being so used, they were held
liable on another note used to take it up, made by IST., on
which their name appeared as indorsers.* And where a
partner who had made a purchase from his firm gave it his
note, which the firm indorsed and got discounted, a renewal
of the note by such partner indorsing the firm name is not
giving the firm name for- his private debt, and is an the scope
of his power.*

I iLangan v. Hewett, 13 Sm. & Mar. 32 (dictum); Gano v. Samuel, 14 Oh

(Miss.) 132 ; Day v. McLeod, 18 Up. 593.

Can. Q. B. 356; Saltmarsh v. Bower, 2 Day v. McLeod, 18 Up. Can. Q. B.

23 Ala. 331 ; Bank of Coiumonwealth 356.

V. Mudgett, 44 N. Y. 514 (afl. 45 Barb. 3§ 373.

663j; Faler v. Jordan, 44 Miss. 383; i Steuben Co. Bank iJ. Alburger (N.

Winship v. B'k of U. S. 5 Pet. 539, Y. 1886), 4 N. E. Rep. 341.

666 ; Davis v. Blackwell, 5 111, App. 5 Wilson v. Richards, 28 Minn. 337.

864

PARTICULAR POWERS BEFORE DISSOLUTION. § 352.

. § 353. Bona Me holder protected. — A bona fide holder or
indorsee, that is one for value, in due course of business, be-
fore maturity and without notice, can recover against the
firm, the scope of whose business includes the issuance of
negotiable paper or paper signed with its name by one part-
ner, in fraud of the rights of his copartners. That is to say,
the signature is not, like a forgery, wholly void; but being
capable of ratification, and by one who is a principal as well
as an agent, is voidable only, and the usual rules of mercan-
tile paper apply. That is to say, if the firm's business is
such that the making of any notes is in its scope, a bona fide
buyer can hold the firm, and need not inquire whether the
note was issued within the scope of the business or not, or
whether it was to pay or secure a separate debt of a partner, '
or was for the accommodation of a third person, or for a loan
to the signing partner, or in any other way in fraud of the
rights of copartners. The doctrine is also frequently rested
on the principle that when one of two innocent parties must
suffer, the loss falls upon the one who has put it in the
power of the guilty person to perpetrate the fraud.^

But if the scope of the business does not authorize the making of
notes by one partner, the paper is as invalid in the hands of an in-

1 Lewis V. Reilly, 1 Q. B. 349 ; Bush Bank, 18 Wend. 466 (aflE'g, s. C. as
V. Crawford, 7 Bankr. Reg. 299; Catskill Bk. v. Stall, 15 id. 364) ; Wells
Mauldin v. Branch Bk. at Mobile, 3 v. Evans, 23 id. 334; Lockw." Rev.
Ala. 503, 513; Knapp v. MoBride, 7 Cas. 390 (rev. 30 Wend. 251); Austin-
id. 19; Rich v. Davis, 4 Cal. 33; s. 0. v. Vandermark, 4 Hill, 359; Mechan-
6 id. 141 ; Beach v. State Bank, 3 Ind. ics' Bank v. Foster, 19 Abb. Pr. 47 ;
488; Freeman v. Ross, 15 Ga. 353; 44 Barb. 87; 29 How. Pr. 408; First
Wright V. Brosseau, 73 111. 381 ; Wal- Nat. Bk. v. Morgan, 78 N. T. 593
worth u Henderson, 9 La. Ann. 839 ; (aflE'd, 6 Hun, 346) ; Atlantic ' State
Waldo Bank v. Lumbert, 16 Me. 416; Bank v. Savery, 83 N. Y. 291 (aff'g,
Boyd V. McCann, 10 Md. 118; Hop- 18 Hun, 36); Cotton u Evans, IDev.
kins u Boyd, 11 id. 107; Boardman & Bat. Eq. 384; Sedgwick v. Lewis,
V. Gore, 15 Mass. 881 ; Connecticut 70 Pa. St. 217 ; Moorehead v. Gilmore,
River Bk. v. French, 6 Allen, 318; 77 id. 118; 18 Am. Rep. 435; Parker
Blodgett V. Weed, 119 Mass. 315; v. Burgess, 5 R. I. 377; Hawes v.
Nichols V. Sober, 38 Mich. 678 ; Bloom Dunton, 1 Bailey (S. Ca.), 146 ; 19 Am.
V. Helm, 53 Miss. 21; Murphy u Cam- Dec. 663; Duncan v. Clark, 3 Rich.
den, 18 Mo. 116; Livingston v. Roose- L. 587; Roth v. Colvin, 33 Vt. 135.
velt, 4 Johns. 251 ; Stall v., Catskill

865

§ 353. CONDUCT OF THE BUSINESS.

nocent holder for value as it was in the hands of the original payee.
The buyer of a note signed in the name of a non-trading firm buys
at his peril."

§ 353. who is a bona Me buyer. — As already said,

the rules of mercantile paper apply to determine who are
entitled to the rights of hona fide purchaser. Thus a pur-
chaser after maturity is not a hona fide buyer in this sense. ^
But if his assignor was a hona fide holder, the assignee or
indorsee gets the assignor's title, though he himself knew of
the fraud or want of authority.'

In Grubb v. Cottrell, 62 Pa. St. 23, H., a member of two firms,
without the knowledge of his copartners in either, drew a draft in
the name of H. & Gr. on a person who accepted it in favor of H., C.
& E., and indorsed it in their names and procured a bank to dis-
count it and kept the proceeds. The bank sued the indorsers, H.,
C. & E., and C. and E. paid the draft and now sue G. for contribu-
tion. It was held that the money got by H. from the discount was
the money of H., C. & E.; the other parties were accommodation
parties for H., C. & E., and though H. intended to defraud them all,
he only defrauded H., C. & E., and C. and E. did not get the bank's
superior title as innocent purchasers, but only their own old title
back again, and could not recover.

A payee's belief, on loaning money, that it was for the private
use of the partner, does not prevent his recovery on the note signed
in the firm name, if the loan really was for the firm and used for
its benefit; an intent to do an unjust act being of no effect unless
the fact correspond with the intention.''

Where a partner states to the lender that he desires the money in
order to retire the notes of certain customers withoilt his copart-
ners' knowledge, this is notice that he is giving the firm name in
accommodation by making his copartners believe that the notes are
paid, and the lender cannot recover on the partnership note from
them." And where C, of the firm of C. & U., made an unauthorized
note in the firm name to V., who used it to take up a note made by
C, on which he (V.) was an indorser, • the bank which held the

1 § 345. * Hamilton v. Summers, 13 B, Mon.

2 Rich V; Davis, 4 Cal. S3 ; Freeman 11 ; 54 Am. Deo. 509.

V. Ross, 15 Ga. 253. 5 McConnell v. Wilkins, 13 Ont. ■

»Boyd V. McOann, 10 Md. 118. App. 438.

866

PARTICULAR POWERS BEFORE DISSOLUTION. § 35*.

former note is affected with notice and U. is not liable on the
note.'

Knowledge of the indorsee that the note made in the firm name
had been given to pay for land is not suflBcient notice that it was
not authorized, for partners often buy land."

The fact that plaintiff knew that the guilty partner had previ-
ously given firm notes for his private purposes is admissible, as
tending to show plaintiff's knowledge that the note in suit was un-
authorized.' But the mere fact of a lender having had previous
dealings with such partner on his individual account, but in his
own name, carries no notice of an intent to appropriate the pro-
ceeds of a partnership note discounted by the lender.*

In Clark v. Johnson, 90 Pa. St. 4i2, 0., the acting partner of J.
& 0., dealers in drugs, paints, etc., bought of plaintiff, who lived in
another city, four barrels of spirits at different times in the name of
the firm. At the time of buying one of the barrels he ordered it
sent to T. & Co., a firm in which he was a partner but J. was not,
and it never was entered on J. & O.'s books; the court said that, in
view of a frequent custom of dealers in merchandise to have goods
sent to a customer direct from the person from whom they them-
selves buy, the fact of such order creates no presumption to put a
prudent vendor on inquiry, and J. is liable with 0. for the pur-
chase.

§ 354. negligent bnyer of paper. — In some cases it

has been held that, although the holder did not have actual
notice, but by the exercise of proper diligence would have
had notice, or vphere the facts would have put him on in-
quiry but for his culpable negligence, he cannot claim to be
a bona fide buyer.''

But on this question treatises on bills and notes should
be examined, and partnership paper examined by the light
of the general law of mercantile paper, the rules of which
have been of late years, in most jurisdictions, changed in
favor of its free circulation and the necessities of commerce,

1 Union Bank v. Underbill, 31 Hun, * Hayward v. French, 12 Gray, 453.
178. s N. Y. Firemen's Ins. Co. v. Ben-

2Dudley u Littlefleld, 21 Me. 418. nett, 5 Conn. 074, 580 (13 Am. Dec.

3 Eastman «. Cooper, 15 Pick. 276; 109); Cotton v. Evans, 1 Dev. &
26 Am. Dec. 600. Bat. Eq. 284.

367

§ 35C. CONDUCT OF THE BUSINESS.

SO as to exclude evidence of slight circumstances putting a
person upon inquiry to affect his title. Thus, mere circum-
stances which might have aroused a prudent buyer's sus-
picion are not sufficient to defeat the buyer's claim upon the
firm.^

In Roth V. Colvin, 32 Vt. 125, the purchaser of notes signed by
a firm knew that the firm was in New York and were wharfingers,
needing but little money, and that the partner living in Vermont
was not an active partner, and that the payee was insolvent, and
the notes were for a large amount and for even numbers. A
finding that the purchaser had not exercised due diligence to ascer-
tain whether the firm and the Vermont partner had authorized
the notes was held proper.

In Royal Canadian Bank v. Wilson, 24 Up. Can. C. P. 362, the
firm's acceptance was in the handwriting of the partner who drew
the bill, and the firm was located at a distant place, but the draft,
being dated on the same day, shows that the buyer knew the ac-
ceptance was written by the drawer.

§ 355. broker is not agent of buyer. — A note broker

in whose hands the note was placed by the payee for sale
is agent of the seller and not of the buyer, though the
buyer has had previous dealings with him; hence, although
purchasing direct from the payee would have shown that
the defendants were sureties only, their firm name being
indorsed after that of the payee's by a partner common to
both firms, persons buying of note brokers need not inquire
whom they represented; it would hamper commerce.^

§356. usury. — That the purchaser from a broker

of a note signed by the firm name buys it at a usurious
rate of discount does not afford a reasonable cause to sus-
pect fraud any more than if the partner had sold it,' nor

1 Freeman's Nat'l Bk. v. Savery, Harmoii, 14 Me. 271; Freeman's
137 Mass, 75; Stimson v. Whitney, Bank v. Savery, 127 Mass. 75; Eed-
130 id. 591, 595; Nichols v. Sober, 38 lonu. Churchill, 73. Me. 146; 40 Am.
Mich. 678; Walker v. Kee, 14 S. Ca. Rep. 345; 14 Centr. L. J. 412; Parker
143 ; Cotton v. Evans, 1 Dev. & Bat. v. Burgess, 5 R. I. 377.

Eq. 384. 3 Connecticut River B'k v. French,

2 Moorehead I). Gilmore, 77 Pa. St. 6 Allen, 313; Sprague v. Zunts, 18
118; 18 Am. Rep. 435; Emerson v. Ala. 383.

868

PARTICULAR POWERS BEFORE DISSOLUTION. § 358.

that the note calls for usurious interest ' and is payable on
demand.*

§ 357. — — renewals. — Where a firm note, signed as accom-
modation by a partner, is in the hands of an innocent buyer and
enforcible by him, renewals of the same with accrued interest,
made by the same partner at a time when such holder had notice
of the defects in the note, were held also enforcible, for if not, his
title in the original would be made valueless.^

In Mix V. Muzzy^ 28 Conn. 186, plaintiff signed an accommoda-
tion nate, payable to the firm of M. & H., and delivered it to M.,
supposing it was to be used for the firm's benefit, and M. made the
firm's note to him in exchange, and gave his note to one G. in pay-
ment of a private debt, G. knowing all the facts. Plaintiff, learn-
ing the fraudulent use of his note, took it up when due by giving
another to G. direct, and surrendered to M. the note of M. & H.,
receiving back another note made by M. in the name of M. & H.
Plaintiff paid his note to'G. when it came due and sued M. & H.
Held, 1st, G. could not have sued the firm or plaintiff on the first
note; it was a fraud on the firm. 2d. Plaintiff, knowing all the
facts when he gave the second note and took a new one, cannot re-
cover on the latter. 3d. As he knew he was not bound to pay G.
on the original note, his doing so gave him no right against the
firm as for money paid to its^ use.

§ 358. Notice from form of the paper. — The paper itself
may convey notice that the firm are merely sureties upon it,
either by so stating, or by the position of the name upon the
paper, as where it is not in the chain of title, which is as
distinct a notice that their liability is secondary as if the
word sureties had been appended. In any of these cases it
is manifest that no one could be an innocent buyer. Thus
the -word' " sureties " opposite the name of the firm is notice
to every buyer of the paper that the signature will not bind
the firm unless authorized by all the partners.*

So in National Security Bank v. McDonald, 127 Mass. 82, where
K., on procuring plaintiff to discount for him a note made by G.,

JHurd V. Haggerty, 34 III. 171; ^Foot v. Sabin, 19 Johns. 154 (10

Blodgettt). Weed, 119 Mass. 315. Am. Dec. 208); Rollins v. Stevens,

2 Blodgett V. Weed, supra. 31 Me. 454 ; Marsh v. Thompson Nat'l

3 Hopkins v. Boyd, 11 Md. 107. Bk. 3 111. App. 217.

Vol. I — 24' 869

§ 358. CONDUCT OF THE BUSINESS.

gives plaintiff as collateral a note made by the defendant partner-
ship, payable to K., on the back of which K. had signed a mem-
orandum, "this note is held by me for a note signed by Gr.," this
memorandum was held to carry notice to plaintiff that the partner-
ship note was made as security only, and that the consent of all
the partners, or that it was given in the course of the firm's busi-
ness, is necessary.

That an indorsement of the firm's name is not in the chain of
title carries the presumption that it is signed for accommodation or
as security only.'

Thus in Wilson v. Williams," D. purchased goods, and gave in
payment to the seller his note, on which W., of W. & Co., iudorsed
the name of W. & Co. This carries notice to the payee, that W. &
Co.'s signature is for accommodation or security. That the payee
parted vdth his goods on the faith of it is, of course, immaterial,
for the liability of the other partners of W. & Co. is a question not
of good faith, but of contract.

■ So in National Bank of Common wealth v. Law,' a partner made
a note in his individual name payable to a third person, and in-
dorsed the name of the firm above the payee's indorsement. This
carries notice that the indorsement is for accommodation, and puts
the payee on inquiry.

So where a borrower or purchaser gives a draft on a firm which
is 'accepted by one partner, the lender or seller has notice that the
firm name is signed as surety.''

Hence, also, if paper on which the name of a firm is indorsed is
received from the maker himself, or from a broker known by the
buyer to be selling it for the maker, this is notice that the firm's
name is signed as accommodation."

In Mecutchen v. Kennady, 27 N. J. L. 230, a note in the fii'm

1 Bowman v. Cecil Bank, 3 Grant's ^127 Mass. 73; s. P. Moynahan v.
Cas. (Pa.) 33; Harris v. McLeod, 14 Hanaford, 43 Mich. 329.
Up. Can. Q. B. 164; St. Nicholas < Joyce v. Williams, 14 Wend. 141,
Bank v. Savery, 18 Jones & Sp. (45 explained in Stall v. Catskill Bank,
N. Y. Super.) 97; per Walworth, C, 18 Wend. 466; Bloom v. Helm, 58
in Stall V. Catskill Bank, 18 Wend. Miss. 21. It must be remembered that
466, 478; Chenowith u.Chamberlin, 6 a partner can bind the firm by ac-
B. Mon. 60 (48 Am. Dec. 145). And a cepting a draft on it in his own name,
seal has been held to to import notice § 441.
of want of authority. See § 438. 5 Hendrie' v. Berkowitz, 37 Cal. 113;

2 14 Wend. 146 (38 Am. Dec. 518). ■ Tevis v. Tevis, 24 Mo. 535 (dictum).

370

PARTICULAR POWERS BEFORE' DISSOLUTION. § 353.

name payable to a third person andsindorsed by bim was used by
a partner to pay his own debt. This was presumed in fraud of the
firm. Had the creditor received it from the payee this might have
been otherwise; but in the hands of the partner, even if he got it
from the payee, the presumption is that the firm's name is for ac-
commodation or the property of the firm. Bat contra, if the maker
is one of the partners, and the note payable to the firm is indorsed
with its name, for the note is then presumably the property of the
firm, and as any partner has the power to dispose of property of
the firm when not palpAbly so doing for his own purposes."

In Bank of Commerce v. Selden, 3 Minn. 155, a check was
drawn by a member of a banking firm on the firm, which he ac-
cepted in the firm name, to get money from a third person who
claimed that the loan was for the firm and not for the partner. As
a check purports to be on the drawer's own deposit, it is presumably
a loan to the partner, and is not like a note made by a partner to
the order of the firm on which he indorses the firm's name.

But where the unauthorized indorsement of the firm name is in
the chain of title, a purchaser of the paper from a person other
than one of the parties to it, prior to the unauthorized indorsement,
has no notice from the paper itself. Thus, in Redlon v Churchill,"
a partner made a note in his own name to his own order, then in-
dorsed his own name, and then indorsed his firm's name after his
own, and delivered it to a broker to sell, from whom plaintiff bought
it. Here the firm's name being in the chain of title, the form of
the note gives no notice, and the broker may be supposed by the
buyer to be, if not the owner, the agent of the last indorser,
and the fact that the maker was a member of the firm of last in-
dorsers affords no conclusive presumption.

In Moorehead v. Gilmore,^ A. made'a note to'W. & Co., who in-
dorsed it, and then the name of M., A. & Co. was indorsed by A.,
and the paper was plajsed in the hands of a third person, who sold
it to plaintiff. The fact that the name of A. occurred as maker and
as a member of the second indorser firm, and in the same hand-

1 Manning v. Hays, 6 Md. 5 ; Teyis 2 73 Me. 146 (40 Am. Rep. 345 ; 14
V. Tevis, supra; Wait v. Tiiayer, 118 Centr. Law Jour. 412).
Mass. 473, where the maker also filled 3 77 Pa. St. 118, 138 (18 Am. Eep.
up blanks in the plaintiff's presence, 485). ,

but it was left to a jury to say
whether there was notice.

371

g SCO. CONDUCT OF THE BUSINESS.

writing, was held not sufficient to put the buyer on notice that the
firm name was misused, or that the partner was acting in bad faith,
for the power of a partner in a trading firm to raise money for the
firm extends to indorsing as well as making notes.

§ 359. memlber of sereral firms. — A member of sev-
eral firms may draw and indorse the same paper, as the repre-
sentative of each, without affecting a holder with suspicion
that his action in behalf of one firm is in bad faith towards
another.

In Freeman's Natl. Bk. v. Savery, 127 Mass. 75, the note of an
individual partner payable to his firm, with their names indorsed
thereon, was indorsed after their names by such partner with the
name of the defendant firm, in which also he was a member, in
fraud of their rights. The fact that the holder purchased the note
from a broker or from another member of the payee firm does not
put the holder on notice of the fraud on the defendant firm, for he
may fairly assume that the person selling the paper holds it indi-
vidually by blank indorsement from the last indorsing firm.'

In Walker v. Kee, 14: S. Ca. 142, Kee had made notes payable to
the firm of S. & C, on which C. indorsed the firm name of the
payees, and then, as member of another firm of C, A. & Co., trans-
ferred them to plaintiff as security for advances to C, A. & Co.
Plaintiff's title is good against assignees for the creditors of S. & C,
for he could assume that S. & C. transferred the notes to C, A.
& Co.

. § 360. illustrations. — In Chemung Canal Bank v. Brad-

ner, 44 N. Y. 680, Carroll, of Bradner & Carroll, a firm, dissolved
without notice of dissolution, of which he had been the active part-
ner, signed its name as drawers to a draft, of which the drawee,
payee and amount were left blank, and delivered it to Lowrey, of
Lowrey, Strong & Co., for the accommodation of the latter firm.
Lowrey took it to the plaintiff for discount, and in plaintiff's pres-
ence filled in the names of Lowrey, Strong & Co. as drawees, him-
self as payee, and inserted the amount, and plaintiff discounted it,
and Lowrey, Strong & Co. afterwards accepted the draft and received

1 See, also, Stimson v. Whitney, Stone, 3 McLean, 172, where he drew
130 Mass. 591 ; Ihmsen v. Negley, 35 a bill in the name of one firm on the
Pa. St. 397; Miller v. Consolidation other, payable to himself, and ao-
Bank, 48 Pa. St. 514 ; Babcocjk v. cepted it in the' drawee's name.

■373

PARTICULAR POWERS BEFORE DISSOLUTION. § 360.

the avails of it, and the drawer^, Bradner & Carroll, were held liable.
For had Bradner signed the drawers' name, and Carroll given it to
Lowrey, certainly Bradner & Carroll, the drawers, would have been
liable, and the bank had therefore no reason to suppose that Brad-
ner & Carroll did not authorize it; and there is nothing in the fact
of Lowrey's possession to show that it was made for his or his firm's
accommodation; for the natural inference was that the drawers'
desired to transfer to him their funds in the hands of Lowrey,
Strong & Co., or desired him to raise for them the amount of the
draft.'

In Darlington v. Garrett, li 111. App. 238, a draft in the firm
name on a debtor of the firm, payable to one partner, was held
binding; because each partner has power to collect debts, although
the partner absconded with the money, and although the draft was
for more than the drawee owed, and was therefore pro tanto a bor-
rowing, and the debtor could recover of the firm the overpayment.
And that the fact that the draft was drawn away from the home
office in another city has nothing suspicious in , it, to put the
drawee on inquiry. The court give the additional reason for the
shape of the paper not being notice, namely, that the payee part-
ner might be borrowing to repay himself an advance to the firm.
But is not this latter reason objectionable, for it assumes that a
person may pay a partner for the purpose of enabling him to ap-
propriate the amount, and convert joint into separate property,
independent of the consent of the copartners? ^

In Adams v. Ruggles, 17 Kan. :237, a note in the firm name,
made by one partner, payable to his own order, and indorsed by him
to the plaintiff, was held presumptively valid against the firm, and

1 See, also, Tirtt v. Addams, 24 Mo. the firm's benefit, and discounted by

186, where D. & T. S. McDonnell a plaintiff, who had discounted previ-

tirm, paid a debt due by them to ous similar notes, which had been

plaintiff, by a draft drawn on paid, was held good in his hands

McDonnell & Addams, which was without proof of assent, in Bank of

accepted in their names by T. S. Commonwealth v. Mudgett, 44 N. Y.

McDonnell, who was a partner in 514 (affg. 45 Barb. 663). But a sinii-

both firms. This was held not to be lar note was held bad, in Davis v.

notice to the creditor of an improper Blackwell, 5 III. App. 33.
use of the acceptors' names. A note 2 gee on this latter point Royal

made by a partner individually to Canadian Bank v. Wilson, 24 Up.

his own order, on which he indorsed Can. C. P. 363; Ex parte Darlington

the firm's name, stating it to be for Banking Co. 4 DeGr. J. & S. 581.

378

§ 361. CONDUCT OF THE BUSINESS.

collectible out of their insolvent estate, in the absence of evidence
rebutting the presumption; but the creditor of an individual part-
ner, recovering from him in payment a note of the firm, payable to
the debtor's order, is of course not a bona fide holder as against the
firm.'

From the fact that a note is signed as maker by one partner, who
misappropriated the proceeds, and also by the firm name after his,
as co-makers, no inference can be drawn that the latter are sure-
ties.' But this fact, on a note reading " I promise," was regarded
a circumstance to be considered in conneetioi; with others to as-
certain if the plaintiif should have taken notice.'

§ 361. Bardea of proof; presumed given for firm. — As-
suming the firm to be one in which each partner has the
power to use the joint name on mercantile paper for the
purposes of the firm, the firm name on such paper is pre-
sumptively placed there by authority ; if as makers, it is
presumptive evidence of a joint debt ; if as indorsers in the
chain of title, it is presumptive evidence of a transfer by the
firm, or by one partner, for partnership purposes, or with
authority. The fact of good faith between the partners, or
that the name was used as a joint undertaking in the regu-
lar course of business, is presumed; that is, the note is taken
to be what it purports to be, and the burden of proof is on
the defendants, the partners, to show the contrary ; as, for
example, if the credit or name of the firm was used by the
signing partner to pay his own debt, or as accommodation
or security for others, or to obtain a loan for himself, or is for
a purchase or a purpose outside the scope of the business, this
is matter of defense, and the burden, therefore, up to this
point, is upon the partners resisting payment to show this
state of facts and the payee's knowledge of it.*

1 Gale V. Miller, 54 N. Y. 536. Dearing, 41 id. 283; Ensminger v.

2 Sylverstein v. Atkinson, 45 Miss. Marvin, 6 Blackf. 310 ; Miller v. Hines,
81. 15 Ga. 197, 200; Gregg v. Fisher, 3

' In Sherwood v. Snow, 46 Iowa, 111. App. 261 ; McMuJlan v. Mackenzie,
481 (36 Am. Eep. 155). 2 G. Greene (Iowa), 368; Adams v.

*Le Roy v. Johnson, 2 Pet. 186, 197 ; Euggles, 21 Kan. 237 ; Deitz v. Reg-
Jones V. Rives, 3 Ala. 11; Knapp v. nier, 17 id. 94; Lindh v. Crowley, 39
McBride, 7 id. 19, 37; Jemison v. id. 756 ; Rochester v. Trotter, 1 A. K.

374

PARTICULAR POWERS BEFORE DISSOLUTION. § 362.

§ 362. - — sMfting of this presumption. — When the
firm is sued upon their signature placed upon an instrument
by one partner in fraud of the firm, whether it be for his
separate debt or for the accommodation of another, or for a
purpose outside of the ^scope of the business, and the- other
partners make the issue of want of authority, the instru-
ment, under the foregoing authoritiesj not being presumed
to have been issued for a separate debt, or as security, or for
other unauthorized purpose, but being, taken prima facie
to represent a partnership transaction, the partners first re-
but this presumption by showing the fact that it was not on
a partnership consideration. Frequently the paper will
speak for itself, as already shown; and so also if given for
an individual debt the creditor cannot fail to know the want
of authority; or if the paz'tnership is not a commercial or
trading one, this fact is notice that a note not assented to
by all is unauthorized. This proof, tlien, having been given,
and the presumption in favor of the regularity of the in-
strument rebutted, it devolves upon the holder, if he is not
an innocent buyer before maturity, without notice, to prove
that the partners authorized the issue of the paper or rati-
fied it subsequently.

Mar. (Ky.) 54; McGowan v. Bank of Davis v. Cook, 14 Nev. 265; Drake v.

Ky. 5 Litt. 271; Magill v. Merrie, 5 B. Elwyn, 1 Caines, 184; Doty v. Bates,

Men. 168; Hamilton v. Summers, 13 11 Johns. 544; Vallett v. Parker, 6

id. 11 (54 Am. Dec. 509); Walworth Wend. 615 ; Whitaker v. Brown, 16

«. Henderson, 9 La. Ann. 339; Wald'o id. 505; Farmers', etc. Bank v.

Bank u.- Greely, 16 Me. 419; Barrett Butchers', etc. B'k, 16 N. Y. 125,

V. Swann, 17 id. 180 ; Davenport v. 135 ; First Nat'l B'k v. Morgan, 73 N.

Davis, 23 id.. 24; Thurston v. Lloyd, Y. 593 (aff. 6 Hun, 346); Nat'l Union

4 Md. 383 ; Manning v. Hays, 6 id. 5 ; B'k v. Landon, 66 Barb. 189 ; Cotton

Porter v. White, 39 id. 613; Manu- v. Evans, 1 Dev. & Bat. (N. Ca.) Eq.

' facturers', etc. Bank v. Winship, 5 384; Chaffln v. Chaffin, 3 id. 355;

Pick. 11 ; Littell v. Fitch, 11 Mich. Foster v. Andrews, 3 Pa. 160 ; Hogg

535; Carrier v. Cameron, 31 id. 873 v. Orgill, 34 Pa. St. 844; McKinney v.

(18 Am. Rep. 192) ; Robinson v. Al- Bradbury, Dallam (Tex.), 441 ; Cro-

dridge, 34 Miss. 353 ; Laler u Jordan, zier v. Kirker, 4 Tex, 353 (51 Am.

44 id. 383 ; Sylverstein v. Atkinson, Dec. 734) ; PoweU v, Messer, 18 id.

45 id. 81 ; Hickman v. Kunklo, 37 401 ; City of Glasgow Bank v. Mur-
Mo. 401 (overruled on other points in dock, 11 Up. Can. C. P. 138; Stew-
Deardorf i;. Thacher. 78 id. 138) ; art v. Parker, 18 New BrunswicTi, 223.

875

1362.

CONDUCT OF THE BUSINESS.

The rule imposing this burden upon the holder is nearly
universal.^ Many of the earlier American decisions an-

' Leverson v. Lane, 13 C. B. N. S.
278 ; Re Riches, 5 N. K. 287 ; Rolstou
V. Click, 1 Stew. 526; Mauldiu v.
Branch B'k at Mobile, 2 Ala. 502, 513 ;
Hibbler v. De Forest, 6 id. 92 ; Scott
V. Dansby, 12 id. 714; Tyree v. Lyon,
67 id. 1; Guice v. Thornton, 76 id.
466 ; Hendrie v. Berkowitz, 37 Cal.
113; N. Y. Firemen's Ins. Co. v. Ben-
nett, 5 Conn. 574, 580 (13 Am. Dec.
109) ; Miller v. Hines, 15 Ga. 197, 200;
Bryan v. Tooke, 60 id. 437; Lucas w.
Baldwin, 97 Ind. 471 ; Chenowith v.
Chamberlin, 6 B. Mon. 60 ; Mech. &
Traders' Ins. Co. v. Richardson, 33
La. Ann. 1308; 39 Am. Rep. 290;
Mutual Nat'l Bank v. Richardson, id.
1312; Darling v. March, 22 Me. 184;
Chazournes v. Edwards, 3 Pick. 5;
Eastman v. Cooper, 15 Pick. 276 (25
Am. Dec. 600); Sweetser v. French,
2Cush. 309 (48 Am. Dec. 666); Na-.
tional Security B'k v. McDonald, 127
Mass. 82; Hefifron v. Hanaford, 40
Mich. 305 ; Selden v. Bank of Com-
merce, 3 Minn. 166 ; Osborne v. Stone,
SO Minn. 25; Robinson v. Aldridge,
34 Miss. 562 ; Deardorf v. Thacher, 78
Mo. 128 (47 Am. Rep. 95) ; Davenport
V. Runlett, 3 N. H. 386 ; Mecutchen
V. Kenpady, 27 N. J. L. 230 ; Living-
.ston V. Hastie, 2 Caines, 246 ; Dob v.
Halsey. 16 Johns. 34, 39 (8 Am. Dec.
393); Foot v. Sabin, 19 id. 154 (10
Am. Dec. 208); Schermerhorn v.
Schermerhorn, 1 Wend. 119; Laverty
V. Burr, 1 id. 529; Williams v. Wal-
bridge, 3 id. 415 ; Boyd v. Plumb, 7
id. 309; Gansevoort v. Williams, 14'
id. 133; Wilson v. Williams, 14 id.
146 (28 Am. Dec. 518); Butler v.
Stocking, '? N. Y. 408 ; Rust v. Hau-
selt, 9 Jones & Sp. 467 (afif'd 76 N. Y.
614); St. Nicholas B'k v. Savery, 13

3';

Jones & Sp. 97 ; Weed v. Richardson,

2 Dev. & Bat. L. 535 ; Himelright v.
Johnson, 40 Oh. . St. 40; Porter v.
Gunnison, 3 Grant's Cas. (Pa.) 297;
Bowman v. Cecil Bank, 3 id. 33;
Bank of Tennessee v. Saffarrans, 3
Humph, 597; Powell v. Messei-, 18
Tex. 401 ; Goode v. McCartney, 10 id.
193; Young v. Read, 25 Tex. Sup.
113; Huntington v. Lyman, 1 D.
Chip. (Vt.) 438 (12 Am. Dec. 716);
Waller v. Keyes, 6 Vt. 257 ; Tomp-
kins V. Woodyard, 5 W. Va, 216;
Royal Canadian Bank v. Wilson, 24
Up. Can. C. P. 363 (but see Hender-
son V. Carveth, 16 Up. Can. Q. B.
324). Contra, Flemmiug v. Prescott,

3 Rich. (S. Ca.) L. 307 (45 Am. Dec.
766), holding the contrary rule to be
an obstacle to commerce ; and in First
Nat'l B'k V. Carpenter, 34 Iowa, 433;
s. c. 41 id. 518, holding that a bank-
ing firm's guaranty is presumably by
authority. Fuller ■;;. Scott. 8 Kan. 25,
where an indorsement of a firm name
not in the chain of title, and there-
fore as guarantors, was said to be
presumed to have been made in the
firm's business, but' this was not nec-
essary to the decision, for there was
evidence that it was in fact in the
business, and the other; partner's an-
swer was of want of consideration
for the indorsement and not want of
authority. In Chazournes v. Ed-
wards, 3 Pick. 5, it was held that ac-
commodation indorsers on a note
made by one partner in the name of
the firm for his separate debt, and
therefore in fraud of the copartners,
are presumed to have intended to
indorse for the firm and not for the
guilty partner, and the burden of
proof is on the creditor to show that

PARTICULAR POWERS BEFORE DISSOLUTION. § 36lf.

nominee it as an American rule, and that the English rule is
otherwise. This notion as to the English rule is erroneous.
It was founded on the supposed authority of Eidley v. Tay-
lor, 13 East, 1T5, and that dase has consequently been again
and again denied in this country. The English rule, how-
ever, is now settled to be the same as ours.

The burden is also on the plaintiff to show that he is a
bona fide holder for value.'

§ 363. Eatiflcation. — Precedent authority or subsequent
ratification need not be proved by express words, or direct
and positive proof, but may be sustained by circumstantial
evidence; thus, it may be inferred from the common course
of business, previous dealings between the parties, or their
acts or omissions after knowledge is brought home ,tb them.

The rule against using the firm name in accommodation or for
other unauthorized purposes is not to be nullified by presuming
assent on slight and inconclusive circumstances." But entering the
transaction on the books, charging it to that partner, or crediting
the third person with goods sold by the partner, are suificient; the
court in this case saying that slight evidence of assent is sufiicient."

In Howell v. Sewing Machine Co. 12 Neb. 177, the fact that a
new partner said he had no loose money about him and would like
to give new notes for the old ones was held not to be assent, the
court saying that mere willingness to lend credit is not authority.

A written ratification by one partner of a purchase by another
outside the scope of the business, which, writing shows that the
partner thought the purchase was to be paid for by the notes of all
the partners, shows that he thought it was to bind all or hone, and,
therefore, does not render him individually liable, all not being
bound.''

they knew the note was made for a St. Albans v. Gilliland, 23 Wend. 311
separate debt, and were therefore (So' Am. Dec. 563); Clark v. Dear-
indorsing a note inherently bad, or born, 6 Duer, 309.
he cannot recover from them. See 2 Wilson v. Williams, 14 Wend.
'Williams v. Walbridge, 8 Wend. 146; 28 Am. Dec. 518; Gray u Ward,
415. 18 111. 82; Sutton v. Irwine, 13 S. &

1 Heath v. Sansom, 3 B. & Ad. 291 ; R. 13.
Hogg V. Skeen, 18 C. B. N. S. 426; 3 Warder t'. Newdigate, 11 B. Mon.
Wright V. Brosseau, 78 111. 381 ; Mun- 174 (53 Am. Deo. 567).
roe V. Cooper, 5 Pick. 413 ; Bank of ^ Roberts' Appeal, 93 Pa. St. 407.

877

§ 365. CONDUCT OF THE BUSINESS.

§ 364. by habit or usage. — A habit of the partners

to exercise such authority with the knowledge of all with-
out dissent by them, or interchanges of partnership names
with other firms, so frequent as to imply a knowledge of the
other partners, or a practice of paying private debts with
joint funds, known to all, or a habit of indorsing for the same'
party with the copartners' knowledge, will be sufficient evi-
dence of authority.' So the fact that the other partner had
done the same on other occasions with the knowledge of
this partner tends to prove mutual authority.^

§ 365. by acknowledgment. — A statement of the co-
partner to others that he had the note to pay and would pay it,
and had paid a similar note before, and a promise to pay, is evi-
dence of ratification.* So of a statement on a prior occasion that
the use of the firm name was all right, and, after failure of the ac-
commodated party, stated that he did not know the extent of his
hability on account of such party."* So a promise to pay, induc-
ing the payee to forbear suit,° or a promise to see it paid in con-
sideration that the holder would lend the note to the innocent
partner to try to collect, thus suspending the holder's control of
the note."

But a letter regretting that the firm would lose is not a ratifica-
tion or proof of authority;' nor is a promise to pay, if he could
get the books and ci^jcounts from the guilty party, sufficient evi-
dence of ratification;' but accepting an indemnity against the
guaranty was held to ratify it.'

1 Duncan v. Lowndes, 3 Gamp. 478; Whitmore, 10 Heisk. 639 ; 27 Am.

Pahlman v. Taylor, 75 111. 629; Ditts Rep. 733; Workman v. McKinstry,

V. Lonsdale, 49 Ind. 531 ; First Nat'l 21 Up. Can. Q. B. 633.

Bk. V. Breese, 89 Iowa, 640 ; Bank of 2 Levy v. Pyne, Car. & Marsh. 453;

Ky. V. Brooking, 3 Littell, 41 ; Darl- Workman u MoKinstry, 31 Up. Can.

ing V. March, 23 Me. 184; Porter v. Q. B. 633.

White, 39 Md. 613; Haynert;. Crow, 3 Jones v. Booth, 10 Vt. 368.

79 Mo. 393 ; Holt v. Simmons, 16 Mo. 4 Butler v. Stocking, 8 N. Y. 408.

App. 97; Bank of Rochester u Bowen, * Wheeler v. Rice, 8 Cush. 205;

7 Wend. 158; Gansevoort v. Will- Rice v. Barry, 3 Cranch, C. C. 447.

lams, 14 Wend. 133; Steuben Co. ' epiagg t). Upham, 10 Pick. 147.

Bank v. Alburger (N. T. 1886), 4 N. E. '' Berryhill v. McKee, 1 Humph. 31.

Rep. 341 ; Bank of Tennessee v. Saf- * Burleigh v. Parton, 31 Tex. 585.

farrans, 3 Humph. 597; Scott v. 9 Clark u Hyman, 55 Iowa, 14.
Bandy, 3 Head, 197; Pooley v.

378

PARTICULAR POWERS BEFORE DISSOLUTION, § 36G.

A guaranty signed in the firm name by one partner is not Toid
as to the others, under the statute of frauds, if authority is shown; '
but a subsequent verbal promise by the innocent partner was held
void under the statute of frauds.''

A new firm with an incoming partner is not liable upon an oral
promise to pay the debts of the old firm.^ The question is, how-
ever, whether the old debts have been assumed by the new firm on
a new consideration, so as to become their debts, and such assump-
tion may be oral, and the release of an outgoing partner may be
the consideration.*

In Stearns v. Burnham, 4 Me. 84, one partner made a note in
the firm name for his separate debt, after dissolution of the firm,
known to the creditor. A suit on the note against both was com-
promised, the innocent partner giving his note for half the debt
and subsequently paying part on the new note; he was held not
liable for the balance of the new note.

§ 366. by acting under the unauthorized act. — Act-
ing under or taking any advantage of the fraudulent signa-
ture is a ratification.

Thus, where a firm note was given by one partner for the unau-
thorized purchase of land out of the scope of the business, the
title of which is taken in the name of both, the other partner
joining in a contract to convey it to others, though stating that he

1 Duncan v. Lowndes, 3 Camp. 478 ; Cranch, C. 0. 447. And if the con-
and see g§ 3d3, 364 ; Moran v. Prather, tract of purchase of goods by a firm
23 Wall. 493; and see Princeton & be that the price may be credited
Kingston Tp. Co. v. Gulick, 16 N. J. upon the debt of one partner, it is
L. 161 ; Cockroft v. Claflin, 64 Barb, valid, though oral, of course, as an
464(affd. in 53 N. Y. 618); Butler i;. original contract desiguating the
Stocking, 8 N. Y. 408. " mode of payment, Rhodes v. Mc-

2 In Taylor v. Hillyer, 3 Blackf. Kean, 55 Iowa, 547. If an act in
433 (36 Am. Dec. 430), and Wagnon the name of the firm by one partner
V. Clay, 1 A.- K. Mar. (Ky.) 357. outside the scope of the business is
Contra, McGiU v. Dowdle, 33 Ark. adopted by the flrrn, or they receive
311 ; Marsh v. GoM, 3 Pick. 285 ; the benefit of it, their oral ratifica-
Jones V. Booth, 10 Y'- ^^^J and see tionor promise is good, Succession
Greenleaf v. Burbank, 13 N. H. 454. of Arick, 22 La. Ann. 501.

An oral promise by one partner to 3 Paradise v. Gerson, 33 La. Ann.
pay a debt of his copartner, in con- 533. Contra, Wilson v. Dosier, 58
sideration of the creditor's forbear- Ga. 602.
ance to levy upon the firm's assets, « See § 505.
was held valid in Rice v. Barry, 3

879

§ 368. CONDUCT OF THE BUSINESS.

had no interest and only did so for his partner's benefit, ratifies the
purchase and notes, for he has alienated the property.'

So where the innocent partner borrows the note from the holder
in order to pursue the guilty partner, who had moved to another
state, and collect it, and guarantying its payment in consideration
thereof.''

So where one partner bought a store and stock in another town,
though taking the title in his own name, the other partners pro-
claiming by their acts that they had opened a store in that place
is evidence of ratification or of prior authority.^

§ 367. By silence. — Mere silence or failure to make prompt
denial of the copartner when informed of the existence of the un-
authorized note, without any element of estoppel in it, is not of
itself evidence of ratification.^

Yet failure to repudiate or deny in a reasonable time has been
held evidence of ratification.'

§ 368. Prior authority deviated from. — Where the plaint-
iff relies upon an express authority giv«n by the firm to one part-
ner, the contract sued upon must be within the terms of the powers
granted to the same extent that obtains in other cases of agency.
Hence, express or implied authoritj' to make accommodation in-
dorsements is not authority to sign as co-maker or surety." Nor
does an agreement of a firm of agents to sell, to " guaranty all
notes good when taken," give a partner authority to sign the firm's
name, as co-makers with the principal debtor.' Nor does authority
to sign a note authorize the individual names of the partners to be

1 Dudleyi). Littlefield, 21 Me. 418; sReubin v. Cohen, 48 Cal. 545;
Porter V. Curry, 50 lU. 319. Eoberts v. Barrow, 53 Ga. 314;

2 Flagg V. Uphara, 10 Pick. 147 ; Sweetser v. French, 2 Cush. 309, 315
for other assumptions of the debt (48 Am. Dec. 666); Foster v. An-
Bee Cockroft v. Claflin, 64 Barb. 464 drews, 2 Pa. 160 ; Woodward v. Win-
(aff'd, without opinion, in 53 N. Y. ship, 12 Pick. 430.

i 618) ; Be Dunkle, 7 Bankr. Reg. 107. « Early v. Reed, 6 Hill, 12 ; McGuire
i 3 Davis V. Cook, 14 Nev. 265. v. Blauton, 5 Humph. 361 (the stat-
' 4 Tyree v. Lyon, 67 Ala. 1 ; Hendrie ute of limitations being different in
V. Berkowitz, 37 Cal. 113; Marsh v. this ^tate as to indorsers and co-
Thompson Nat'l Bk. 2 HI. App. 217 ; makers).

Hayes v. Baxter, 65 Barb. 181. 'Brayley v. Hedges, 52 Iowa, 623,

Contra, if the firm was benefited, 625.
silence is a ratification, Stewart v.
Caldwell, 9 La. Ann. 419.

380

PARTICULAR POWERS BEFORE DISSOLUTION. § 370,

SO placed as to render their apparent legal obligations inter se hos-
tile, such as signing the name of one as maker and one as surety."

So, also, written authority given to one partner to sign the name
of the firm or the separate name of one partner is not authority
to pay a bond given in his separate name for a joint debt.'

So authority to indorse to the extent of $150 is not authority to
indorse a note for $600 as security for $150.'

A power to receive a deposit of money and paying interest on it
does not include a power to bind the firm by receiving a deposit of
bonds, because money, unlike bonds, would be a benefit to the firm.^

So a note made by all the partners for one purpose is not a debt
of the firm when applied to another purpose.' And where both the
partners joined in making a note payable to a bank, to be dis-
counted, in order to pay partnership debts, and one of the partners
delivered it to his separate creditor without authority, and the bank
refused to discount the note or allow the creditor to sue in its
name, the. creditor cannot recover from the partners. Both part-
ners must assent to the issuing as well as signing, to constitute it a
note.'

§ 369, declarations. — The declarations of the guilty part-
ner at the time of giving the firm's note for the debt of another
fitm, that the former had asssumed the debts of the latter, or had
received a consideration, are not admissible against his copartners.'

Nor is a prior agreement to guaranty, signed in the handwriting
of the partner who subsequently gave the guaranty.*

Conversations aud transactions between the partners at dissolu-
tion and attempted settlement in the absence of the payee, show-
ing that the innocent partner did not know such paper was out-
standing, are competent in his own favor to rebut any inference of
assent drawn from such occurrences.'

BORROWING POWER.

§ 370. In trading firms. — This is the most dangerous of
powers and yet one of the very necessary ones in a com-

1 Stroh V. Hinchman, 37 Mich. 490. 574. Contra, Cfhenango Bank v.

2 United States v. Astley, 3 Wash. Hyde, 4 Cow. 567.

C. C. 508. " Kaiser v. Fendrick, 98 Pa. St. 528 r

3 Mercein v. Andras, 1 0 Wend. 461. Heffron v. Hanaford, 40 Mich. 305.
* Hathe way's Appeal, 52 Mich. 112. s Osborne v. Stone, 30 Minn. 25.
liGuice V. Thornton, 76 Ala. 466. 9 Gale v. Miller, 54 N. Y. 536 (affg.
6 Adams Bank v, Jones, 16 Pick, 1 Lans. 451 ; 44 Barb. 430).

381

§ 370. CONDUCT OF THE BUSINESS.

mercial partnership. It is very closely allied to the power
to make notes and bills; seems to be always accompanied
by the latter power,^ and generally by the power to pledge
or mortgage to secure the loan.^ It is, of course, a much
broader power than that to obtain goods or supplies on
credit, and hence is broader than a power to incur debts,
and is not, therefore, included in the latter. In a trading
partnership, however, the power is deemed always to exist
by implication, and to follow as a legal consequence when
that relation is established, unless the lender has notice' of
the purpose for which it is wanted and that purpose is not
within the scope.'

And it seems that the power to borrow extends to assisting the
running of other enterprises in which the firm has taken an inter-
est, as for a mill in which it owns stock.*

We have elsewhere seen ' that money borrowed on the individual
credit of one partner does not become a debt of the firm by being
applied to its ase.

1 See supra, Bills and Notes. lins, 115 Mass. 388; Faler v. Jordan,

•■2 See §406. 44 Miss. 283; Bascom v. Young, 7

s Rothwell V. Humphreys, 1 Esp. Mo. 1 ; Roney v. Buckland, 4 NeV.

406 ; Thicknesse v. Bromilow, 3 Cr. 45 ; Church v. Sparrow, 5 "Wend. 233 ;

& J. 425 ; Lane v. Williams, 2 Vern. Whitaker v. Brown, 16 id. 505 ; On-

277, 293; Denton v. Bodie, 3 Camp, ondaga Co. Bank v. DePuy, 17 id.

493 ; ^a; parte Bonbonus, 8 Ves. 540; 47; Miller v. Manice, 6 Hill, 119;

Uoyd V. Freshfield, 2 C. & P. 333; Seybold t;. Greenwald, 1 Disney, 425 ;

Brown V. Kidger, 3 H. & N. 853; Gano v. Samuel, 14 Oh. 593; Klein-

Winship v. Bank- of U. S. 5 Pet. 539, haus v. Generous, 25 Oh. St. 667;

563; 5 Mason, 176; Saltmarsh v. Benninger v. Hess, 41 id. 64 ; Hoskis-

Bower, 23 Ala. 321 ; Howze v. Pat- son v. Eliot, 62 Pa. St. 393 ; Steel v.

terson, 53 Ala. 305 (25 Am. Eep. 607); Jennings, Cheves (S. Ca.), 183; Ford

Wagner v. Siinmons, 61 id. 143; v. McBryde, 45 Tex. 498; Michaels.

Decker v. Howell, 42 Cal. 636; Pahl- Workman, 5 W. Va. 891. See, also,

man v. Taylor, 75 111. 629; Walsh v. the cases cited under Power to Give

Lennon, 98 lU. 27 (38 Am. Rep. 75) ; Bills and Notes, § 341.

Gregg V. Fisher, 3 111. App. 361; * Morse v. Hagenah (Wis.), 33 N.

Hunt V. Hall, 8 Ind. 215; Leffler v. W. Rep. 634; Andrews v. Cougar

Rice, 44 id. 103 ; Sherwood v. Snow, (Supreme Ct. U. S. 1881), 30 Am.

46 Iowa, 481 (36 Am. Rep. 155); Law Reg. (N. S.) 338; Lawyers'

Deitz V. Eegnier, 37 Kan. 94; Lindh Coop. Book, 36, p. 90, noticed fuUy

V. Crowley, 39 id. 756 ; Emerson v. under § 349.

Harmon, 14 Me. 371; Etheridge v. 6§446.
Binney, 9 Pick. 273; Smith v. Col-

PARTICULAR POWERS BEFORE DISSOLUTION. § 371.

And that where one partner borrows money not expressly upon
his individual credit, and it is shown to have been borrowed for
and used for the firm, the firm will be liable; * and if the name of
one partner is the name of the firm, what circumstances make the
loan a firm debt.*

And that a loan on the credit of the firm is a partnership
debt, although the money is misapplied by the borrowing partner
to his own purposes, if the lender did not participate in the mis-
use."

§ 371. Non- trading firm. — The borrowing power, how-
ever, is confined strictly to trading partnerships, and does
not exist in non-trading firms unless specially granted,
either by the articles or for the occasion, or by specific au-
thority or by subsequent ratification;* and the same rule
applies where the articles of partnership have forbidden
borrowing and the lender has notice of the restriction.*

But there is no implied power to borrow in order to found the
partnership, and if an express power is granted the authority does
not extend beyond the terms of the power. Thus, where A. and
B. agreed to buy a farm of C. in partnership, to be paid for in bills
at three and six months, and B., by agreement with C, drew the
bills at six and twelve months without A.'s knowledge, A. is not
liable upon the bills.'

Nor is there any agency in partners for each other to borrow in
order to increase the fixed capital of the firm, and a lender know-
ing this is the purpose of the loan cannot charge the other part-
ners with the loan.'

1 § 447. C. P. 391 ; Wilson v. Brown, 6 Ont.

2 §443. App. 411. See Freeman v. Carpen-

3 § 348. ter, 17 Wis. 126.

■• Forster v. Macki-eth, L. R. 8 Ex. 5 jjg Worcester Corn Exchange Co.

163; Plumer v. Gregory, L. R. 18 8 DeG. M. & G. 180. And see § 333.

Eq. 621; Pease w. Cole, 58 Conn. 53; Contra, if for the purchase of sup-

Ulery v. Ginrich, 57 III. 531 ; Bays plies essential to prosecution of the

V. Conner, 105 Ind. 415 ; Breckin- enterprise. Gavin v. Walker, 14 Lea.

ridge v. Shrieve, 4 Dana, 875 ; Davis 643.

V. Richardson, 45 Miss. 499 ; Prince ^ Greenslade v. Dower, 7 B. & C.

V. Crawford, 50 id. 344 ; Hunt v. 635. See, also, § 446.

Chapin, 6 Lans. 139; Orosthwait v. 7 Fisher v. Tayler, 3 Hare, 318.

Ross, 1 Humph. 33 (34 Am. Dec. Tlie apparent inconsistency in the

618; McCord v. Field, 37 Up. Can. phrase borrow to increase capital,

3S3

g 87?;. . CONDUCT OF THE BUSINESS.

§372. Form of borrowing. — A partner's right to raise
money for the firm extends to indorsing notes as well as
making them,' or to borrow indorsements,^ or to borrow a
note or signature in accommodation,' or exchange notes or
acceptances,* or borrow securities, as United States bonds.'

And in a partnership to buy and sell oats, one partner borrowed
oats, the loan to be repaid in oats. This was held valid.' And a
member of a manufacturing firm having unfinished articles on
hand may deliver them to another to finish and sell to reimburse
himself his advances.'

A borrowing at a usurious rate, being illegal, was held not bind-
ing on the non-assenting partners, except to the extent of the
principal and legal interest.'

And it has been said that a partner can contract to pay a share
of profits in lieu of interest;' but a managing partner's contract
to pay twenty-five per cent, of the net profits in lieu of interest on
a loan of $2,000, where the aggregate capital is $16,000, and the
interest would amount to more than the lender's proportion of
profits, if a partner, would have amounted to, was held not within
his authority.'"

BUYING."

§ 373. In trading firms. — Each member of a trading
partnership, part of whose ordinary business is the purchas-
ing of goods, has implied authority to purchase in the name

because the increase is balanced by Rep. 383. See Hogan v. Reynolds,

the debt, and is, therefore, delusive 8 Ala. 59.

unless the borrowing js on individual < Gano v. Samuel, 14 Oh. 593.

credit, is noticed by Mr. Lindley, ^ Roney v. Buckland, 4 Nev. 45.

Partnership, p. 274. 6 Adee v. Demorest, 54 Barb. 433.

1 Miller v. Consolidation Bank, 48 ' Games v. White, 15 Gray, 378.

Pa. St. 514; Moorehead v. Gilmore, "DiUon v. McRae, 40 Ga. 107.

77 Pa. St. 118^ 18 Am. Rep. 435; See Chandler t;. Sherman, 16 Fla. 99.

Manning v. Hays, 6 Md. 5 ; Emerson ^ Ford v. McBryde, 45 Tex. 498.

V. Harmon, 14 Me. 371. '" Chandler v. Sherman, 16 Fla. 99.

21^elfz v. Regnier, 27 Kan. 94; n As to when the power to purchase

Roney v. Buckland, 4 Nev. 45; begins and as to the right to buy

Hutchins v. Hudson, 8 Humph. 426. before the partnership is formed,

3 Johnson v. Peck, 3 Stark. 66; but in contemplation of it, has been

Faler v. Jordan, 44 Miss. 283 ; treated under the head of Inchoate

Sorg V. Thornton, 1 Cin, Super. Ct. Partnerships, § 80.

384

PARTICULAR POWERS BEFORE DISSOLUTION. § 374.

of the firm whatever is necessary to carry on its business in
the usual way, and may pledge its credit for paymen t. '

If the purchase is outside the real and apparent scope of,
the partnership business, the firm is not bound by it, unless
all the partners assented, for all firms are to some extent
limited, and outside the scope they stand on the same plane
as non- trading firms. ^

§ 374, In non- trading firms. — It is difiScult to conceive of
a partnership which does not require some purchases to be
made in the usual course of its business, and in this power
there is less difference between trading and non-trading
firms than in other powers; and in a non-commercial part-
nership, the power to purchase on credit such articles as are
necessary to a prosecution of the business or enterprise in the
ordinary way, or to carry into effect the purposes for which
it was created, as distinguished from purchases to enlarge
the business or for mere convenience, seems clearly to exist.
Not that a mere bona fide sale to one partner binds the firm
to pay the seller, but that the existence of authority which
the seller must prove may be shown by the nature of the
business itself, and if not, then the further fact of necessity
for the ordinary purposes of the business will establish it
without proof of express authority.

In Gardiner v. Childs," printers and publishers in partnership in
the profits of a publication to be made are all liable for a purchase
of paper by the publishers for the purpose of the publication.
Contra if each is to purchase his own supplies and contribute them
as part of his share in the enterprise."

iHyat V. Hare, Comb. 383; Bond 257; Maltby «. Northwestern Va. R.
V. Gibson, 1 Camp. 185, where R. Co. 16 Md. 432; Goode 'v. Line-
one of a firm of liarness makers cum, 1 How. (Miss.) 381 ; Livingston
bought on the firm's credit bits v. Roosevelt, 4 Johns. ^51; 4 Am.
for making bridles, but appropriated Dec. 273 ; Briggs v. Hubert, 14 S.
them to his own use; Ala. Fertilizer Ca. 620; Venable v. Levick, 2 Head,
Co. V. Reynolds, 79 Ala. 497; Dick- 351; Bankhead v. AUoway, 6 Cold,
son V. Alexander, 7 Ired. L. 4; Ven- 56; Fraser v. McLeod, 8 Grant's Ch.
able V. Levick, 3 Head, 351. (Up. Can.) 268.

2 Irwin V. Williar, 110 U. S. 499, 3 8 C. & P. 345.
505 ; U. S. Bank v. Binney, 5 Mason, 4 Wilson v. Whitehead, 10 M. & W.

176; Wagnon v. Clay, 1 A. K. Mar. 503.
Vol. 1—25 385

§ 874. CONDUCT OF THE BUSINESS.

In McCrary v. Slaughter, 58 Ala. 230, two persons, each own-
ing an undivided half of a plantation, formed a partnership, one to
furnish the mules and half the laborers and the other his services
and half the laborers, neither to have power to bind the other
by any contract. One of the partners made a purchase of mules
on the credit of the firm, and this was held not to bind his copart-
ner. The court said that a purchase of mules was not necessary or
appropriate to the business; that no contract by one, except for
something necessary to the successful conduct of the business,
would be supported; that if this contract was within the scope, a
contract for the purchase or rent of land or purchase of a gin
would be, and that it was better to let the power to contract stand
on express authority than to indulge implications to support; it.

In Burnley v. Rice, 18 Tex. 481, 494, in a partnership for the cul-
tivation of cotton, a debt incurred by one with a view to culti-
vating sugar was within the apparent scope of the business as
planters, but in this case there was abundant evidence of ratifica-
tion.

In Lynch v. Thompson, 61 Miss. 354, a partnership was formed
for a single enterprise, the raising and selling the material of a
sunken steamer, and the power to buy on credit was exercised by
one partner and was sustained by the court. It was ruled that, to
have an implied power to purchase, the partners need not be gen-
eral traders; -that the scope was to be judged by the nature of the
business; and as the purchase on credit of appliances, or of whatever
is essential to promote the enterprise, may be required, the neces-
sary authority to make them is implied and need not be inquired
into by a perso^ dealing with one partner.

One of a mining firm can bind it for purchases essential to carry
on and accomplish the purposes of the business; ' one of a firm of
stone masons with contracts for building may order stone from the
owner of a quarry; ^ one of a firm of contractors to build or grade
a railroad route may purchase supplies;' one of a firm running a
saw-mill may purchase necessary grocerie's and supplies for the
hands.* In a partnership to buy a single drove of cattle to be
shipped to the southern market, the power of purchasing is ex-

! Jones V. Clark, 43 Cal. 180 ; Man- 2 Kenney v. Altvater, 77 Pa. St. 34.
viUe V. Parks, 7 Colorado, 128. And 3 Gavin v. Walker, 14 Lea, 643.
see Higgins v. Armstrong, 10 Pac. < Johnston u Dutton, 37 Ala. 345.
Rep. 333.

8S6

PARTICULAR POWERS BEFORE DISSOLUTION. § 374.

hausted when the droTe is hought, and a partner who, on the way
to the market, makes additional purchases in the name of the firm,
does not bind his copartner thereby."

In Tate v. Clements, 16 Fla. 76 (26 Am. Rep. 709), the man-
aging partner in a saw-millbought a lot of chopped corn, repre-
senting that it was required in the business; and this, with proo;f
that it was actually used in the business, was held sufficient to
establish a presumption that the purchase was in the scope of the
business, and the jury might decide whether it was legitimately
connected therewith or not. The court further stated that it would
be equally difficult to say if the purchase of horses would be neces-
sary to haul logs, and so of feed for the horses. Yet there was no
direct evidence in the case that the firm used cattle.

In Leffler v. Rice, U Ind. 103, and Polk v. Wilson, 21 Md. 538,
a purchase of middlings and grain for the mill by one partner was
held to be reasonably and properly connected with the business.

In Judge w.Braswell, 13 Bush, 67 (26 Am. Rep. 185), in a part-
nership to prospect for and mine ore on the partnership's lands, and
on other lands which it might secure, and to sell these privileges,
the articles forbidding any tumber less than all to buy lands, one
partner purchased additional lands in the name of the firm, and
drew on the others for the purcha^ie money, and the vendors
brought an action on their refusal to pay the drafts. It was held
that, being a non-commercial partnership, the plaintilf must show
the authority of a single partner to make the contract sued on;
and as no proof of authority by usage of similar partnerships
is shown, and as no rule of law gives such authority, all the
power a partner has to make such contract is derived from the ar-
ticles, and the articles putting such purchases within the scope of
the business, at the same time withhold such power from a single
partner, and the plaintiff cannot recover.

In a partnership to buy and sell lands any partn'er has the right
to buy land for the firm, and bind the members for payment.'

In Davis v. Cook, 14 Nev. 2'65, it was held that authority given
to a partner to open a store in another place involves authority to
purchase a store and stock of goods there on credit. The court,
putting certain supposititious cases, which are not of trading part-
nerships, though this difference is not noted, says that a partner-
iBentley v. White, 3 B. Mon. 363 2 Sage v. Sherman, 2 N. Y. 417, 433.
(88 Am. Dec. 185).

887

§ 375. CONDUCT OF THE BUSINESS.

ship formed in one place to keep a hotel in another impliedly gives
power to the managing .partner to buy a hotel on credit there.
And that a managing partner in a stage line has implied power to
make a purchase of barns. So in Stillman v. Harvey, 47 Conn. 26,
a partnership being formed to cairy on a brewing business, but
having no brewery, a purchase by one partner of the unexpired
lease of a brewery, in the firm name, was held to be witlpn the
scope of his powers. In this case, however, the firm took possession
and prosecuted their business in it, which of course cured any de-
fect of power.

A few cases have gone further, and permitted the purchase on
credit of appliances convenient rather than strictly necessary, to
effect the purposes of the partnership; as stoves in a livery-stable,'
law books for a law firm,' medicines by a medical firm.' And in a
partnership to manufacture iron, the acting and only resident
partners were held authorized to buy timber land, to get fiiel for
the business.^ ,

If one partner is deprived of all authority to buy supplies, and
the other is to furnish all tools, but refuses to do so, this was held
to constitute an implied assent to the former's purchase of them,
and he will be reimbursed out of the crops.'

§ 375. Delivery to one partner. — Delivery to one partner
of goods ordered by the partnership is delivery to the firm; "
and so of delivery of a deed ; ' hence delivery to one partner
cannot be in- escrow.'

In Byiugton v. Gaff, 44 111. 510, a firm contracted to buy a steam-
boat, the defendant guarantying payment, and the vendor made
out a bill of sale to one partner alone and delivered the boat to him.
The defendant claimed this was a new sale, but being apparently
intended in fulfillment of the contract, the guarantor was held
liable^; both partners had assented to the delivery, however. ,

In Cameron v. Blackman, 39 Mich. 108, the managing partner

1 Hickman v. Kunkle, 27 Mo. 401, 8 Nichol v. Stewart, 36 Ark. 613 ;
404. but see Morgan v. Pierce, 59 Miss.

2 Miller u. Hines, 15 Ga. 197, 301. 210.

3 Crosthwait v. Ross, 1 Humph. 33 * Kenney v. Altvater, 77 Pa. St. 34 ;
(34 Am. Dec. 613). Crosswell v, Lehman, 54 Ala. 563.

* Brooke V. Washington, 8 Gratt. 'Henry d. Anderson, 77 Ind. 361.
348. * Moss V. Eiddle, 5 Cranch, 351.

PARTICULAR POWERS BEFORE DISSOLUTION. § 376.

authorized the vendor to deliver goods to one F. P., a young relative
- of the partners and onee in their employ, and the firm was held
liable, on the doctrine that it is usual and proper for merchants in
different businesses to furnish each other's customers with articles,
which are charged to the house and not to the buyer, and the court
will take judicial notice of such custom. No one thinks of ask-
ing why such credits are sought, or whether the partnership articles
contemplate it, and whether the 'goods are desired for clerks or cus-
tomers or strangers does not concern the seller; he has a right to
presume such dealings are within the power of all business houses.'
§ 376. yarying the contract. — The power of one part-
ner to vary a contract of purchase made by the firm is treated under
the power of control over its property.' If goods are sold and de-
livered to a firm on credit, one partner has power to return
them on account of the inability of the firm to paJ^' So if the
firm having agreed to sell" goods deliver inferior articles, a partner
may agree to take' them back and return the consideration." So
where a partner authorized to sell sold with warranty of soundness,
and proving unsound, he can take them back and bind the firm to
return the price."

Other branches of the law of partnership as applied to purchases
•have been considered under other heads. Thus, where purchases
on credit are forbidden and this is known to the seller.* When
purchases by a single partner inure to the benefib of the firm, see
under Good Faith.' When an unknown partner is bound, see
Dormant Partner;' and when the partnership name has not been
used.' As to purchases by a partner to contribute as his share of
the capital, or by one who subsequently takes in a partner." As
to what purchases are in the scope of the business generally."
When a partner purchases for his own use in the name of the
firm."' When a partner purchases without stating for whom the

1 But contra, see Pinckney v. Key- ^ See § 333.
ler, 4 B. D. Smith, 489. ' § 305 et seq.

2 See §• 408, and Leiden v. Law- 8 g 156.
rence, 3 N. R. 383; Detroit v. Robin- Ǥ 305.
son, 43 Mich. 198. ' "gg 80, 446.

3 De Tastet v. Carroll, 1 Stark. 88. " §§ 816-839.

* Wilson V. Elliott, 57 N. Y. 316. 12§ 447.

* Huguley v. Morris, 65 Ga. 666. '

§377. CONDUCT OF THE BUSINESS.

goods are intended.' When a partner subsequently misappropri-
ates the purchase to his own use.' »
Checks. — Power to draw.'

CONFESSIONS OF JUDGMENT BY ONE PAETNEK.

§ 377. No such power, and why. — The rule is nearly uni-
versal that one partner cannot execute a power to confess a ^
judgment against the firm without the consent of his co-
partners. I have not been able to ascertain the origin of the
rule; although some cases put it upon the want of power to
bind the firm by a sealed instrument, yet this cannot be the
true reason. No seal was needed at common law to such an
instrument. Nor is there any such magic in a scrawl; and
as there is no difference in effect or consequences whether
the judgment was on a power, with or without seal, the
reason is unworthy.

Money is generally not paid without deliberation, but
promises may be very rashly made, and the true grounds are
probably more practical ones, and are three: 1st. It enables
one partner to create liens on the private and individual
property of his copartners; this objection is removed where
the partnership can be sued in the firm name. 2d. Such a
power is not necessary tothe. management of the joint en-
terprise, and is capable of great abuse, for it is an unlimited
power to alienate, incumber and materially change, not
only the transitory property of the firm, but its permanent
investments, and enables one partner alone to plunge the
firm into inextricable debt, which might absorb the whole
fund and the private fortunes of each. 3d. It deprives the
other partners of opportunity to make a defense, and cuts
off a resort to the regular tribunals quite as effectually as
the power to submit to arbitration, which is also denied to
a partner. And being capable of such abuse, the proper
ground for denying the power is that it is outside the scope

1§447. Ex. 163; Bull v. O'SuUivan, L. E. 6

2 §348. Q. B. 309; Commercial Nat. Bank «!.

' See Forster v. Mackreth, L. R. 3 Proctor, 98 111. 558.

390

PARTICUIAR POWERS BEFORE DISSOLUTION. § 377.

of the business and beyond the true Umits of the partnership
relation.

It is true that in many states, when a firm has been
sued, judgment may be rendered to bind the partnership
property, though but one partner has been served with
process; but there is in that case, at least, time and oppor-
tunity to learn of the suit. This will be treated hereafter.
What follows here relates wholly to warrants of attorney to
confess judgment given when there is no suit pending.^

Code provisions allowing a confession of judgment only apply
to pending cases, and do not apply to warrants of attorney.''

Of the above cases, the following base the invalidity of the judg-

1 The following are the authorities ridge, 11 Oh. 323; Rfohardson v. Ful-
denying to a partner the power to ler, 3 Oreg. 179; Gerard v. Basse, 1
execute a warrant to confess judg- Dall. 119; Bitzler v. Shunk, 1 Watts
iiient against the firm without the & S. 340; 37 Am. Dec. 469; Cash v.
assent of the copartners: Hambridge Tozer, 1 Watts & S. 519; Harper v.
V. De la Crouee, 8 C. B. 742; Hall v. Fox, 7 W. & S. 143; York Bank's
Lanning, 91 U. S. 160, 170; Elliott t». Appeal, 36 Pa. St. 458; Trenwith v.
Holbrook, 33 Ala. 659 ; Wilcoxson v. Meeser, 13 Phila* 366 ; Hoskisson v.
Burton, 27 Gal. 328; Greeu v. Rand, Eliot, 63 Pa. St. 393; Mills v. Dick-
2 Gonn. 354; Sloo 'v. State Bank of 111. son, 6 Rich. (8. Ga.) L. 487 ; Shedd v.
2 111. 438 ; Barlow v. Reno, 1 Blackf . Bank of Brattleboro, 33 Vt. 709 ;
253; Hopper V. Lucas, 86 Ind. 43 ; Remington u Gummings, 5 Wis. 138 ;
Ohristy v. Sherman, 10 Iowa, 535 ; Holme v. Allan, Tayl. (Up. Can.) 348 ;
Edwards v. Pitzer, 12 Iowa, 607; Huff v. Cameron, 1 Up. Can. Prac.
North V. Mudge, 13 Iowa, 596; Rep. 255; Gandda Lead Mine Co. v.
Rhodes v. Amsinck, 38 Md. 845, 854; Walker, 11 Low. Can. 483, 435. Even
Soper V. Fry, 37 Mich. 236; Hull v. the borrowing power in a trading
Garner, 31 Miss. 145; Morgan v. partnership will not authorize one
Richardson, 16 Mo. 409 ; 5" Am. Dec. member to secure the loan by a
335 ; Flannery v. Anderson, 4 Nev. sealed power to confess judgment.
437 ; Ellis v. ^Ellis, 47 N. J. L. 69 ; Hoskisson v. Eliot, 63 Pa. St. 393.
Green v. Beals, 3 Caines, 354; Crane Even if the warrant to confess is
v.- French, 1 Wend. 311; Stouten- signed by two persons, it is pre-
burgh a. Vandenburgh, 7 How. Pr. sumably for their individual indebt-
329 ; Everson v. Gehrman, 10 id. 301 ; edness, unless proved to be for part-
Lambert, i'. Converse, 22 id. 265; nership debt. McKenna's Estate, 11
Bridenbecker v. Mason, 16 id. 208 ; Phila. 84 ; EUinger's Appeal (Pa.), 7
McKee «. Bank of Mt. Pleasant, 7 Atl. Rep. 180.

Oh. 2d pt, 175 ; McNaughten v. Part- 2 Richardson v. Fuller, 2 Oreg. 179.

391

g 379. CONDUCT OF THE BUSINESS.

ment on the want of power in one partner to bind another under
seal.'

That the copartner had absconded does not, it seems, authorize
the confession of judgment. See facts in Gerard v. Basse, 1 Dall.
119. Compare, however, the doctrine of an assignment for the
benefit of creditors by one partner in such cases."

§ 378. Assent and ratification. — Prior parol assent of the
other partner is sufficient authority.'

The cognovit or judgment may be ratified by the other
partner, and this may be proved by circumstances showing
assent;* as delay to object to the judgment for eighteen
months;^ or admitting that it was "all right;"" but is
only good from the date of ratification.'

§ 379. Talid against the partner in fault. — The judgment,
however, is valid against the jjarty who executed the power,
and binds his individual property and his individual interest
in the partnership property, the same as any otlier separate
judgment.'

1 Gerard v. Bas|e, 1 Dall. 119; can complain, for the former may-
Green V. Beals, 3 Calnes, 254; ratffy. Hamilton's Appeal, 103 Pa.
McNaughten v. Partridge, 11 Oh. St. 368; Grier v. Hood, 25 id. 430.
223 ; Remington v. Cummlngs, ^ But if the- confession is in favor of
Wis. 138; Ellis v. Ellis, 47 N. J. L. the separate creditor of the individ-
69. And the warrj^nt was also un- ual partner, it is a fraud on the cred-
der seal in Ellis v. Ellis, 47 N. J. L. itors of the.firm, and they can attack'
69; Hoskisson v. Eliot, 62 Pa. St. it collaterally on distribution of the
393; Shedd v. Bank of Brattleboro, fund realized. McNaughton's Ap-
32 Vt. 709; Cash v. Tozer, 1 Watts & peal, 101 Pa. St. 550.

S. 519. ' Brulton v. Burton, 1 Chit. 707.

2 In Pennsylvania, although the * Bivingsville Cotton Mfg. Co. v.
earlier decisions denied the power, Bobo, 11 Rich. (S. Ca.) L. 386; Cash
under the later ones, a judgnaent on v. Tozer, 1 Watts & S. 519 ; Overton
a cognovit note, by one partner, not v. Tozer, 7 Watts, 331.

under seal, is good against the part- 5 Brown v, Cinqmars, 2 Up. Can.

nership property. Kneib v. Graves, Prac. Rep. 205.

72 Pa. St. 104; Ross v. Howell, 84 « Record v. Record, 21 New Bruns-

Pa. St. 129. Even if the partner wick, 277.

confessed the judgment in favpr of " Wilcoxson v. Burton, 27 Cal. 22 '.

himself as guardian. Hamilton's * Gerard u Basse, 1 Dall. 119; Hojj-

Appeal,. 103 Pa. St. 368. Only the per v. Lucas, 86 Ind. 43; North v.

other partners and not the creditors Mudge, 13 Iowa, 506; Rhodes uAm-

393

PARTICULAR POWERS BEFORE DISSOLUTION. § 380.

Hence, if one partner without authority confesses a judgment
against the firm, and then both confess judgment in favor of an-
other creditor, the latter has a priority over the other on distribu-
tion."

If the individual names are not given, the judgment cannot be a
lien on the land, even of the signing partner.''

§ 380. Remedy of the non-assenting partner. — TheEnglish
rule has been said to be, if an attorney has confessed judg-
ment on the unauthorized warrant executed by one part-
ner, and is in solvent circumstances, to uphold the judgment
against the firm, and leave the other partner to his remedy
against the attorney.'

This rule seems in every way unreasonable. It is a trap for the
lawyer, and gives the innocent partner the expense of a law-suit,
and that too against an officer of the court, incumbers judicial rec-
. ords with an additional action, and perhaps discriminates against
the needy ones of the lawyers. Such rule was not applied where an-
execution against the person instead of against the property of the
other partnet was issued, because he could not be compensated for
the loss of his liberty, and justice would not be complete without
setting aside the judgment, whiph was done.*

, The rule in the United States, however, distinctly, is to re-
lieve the non-assenting partner.

Some cases hold that the judgment will be set aside as to the
non-consenting partner; ' others that execution will be restrained

sinck, 38 «Md. 345, 354 ; Flannery v. all powers of attornej' to confess

Anderson, 4 Nev. 437 ; Green «. Beals, judgment, the judgment was held

2 Caines, ,854; Crane v. French, 1 wholly void and not merely voidable,

Wend. 311 ; York^ Bank's Appeal, 36 and third persons can impeach it.

Pa. St. 458; Mair v. Beck .(Pa.). 3 Mills «. Dickson, 6 Rich. (S. Ca.) L.

Atl., Rep. 318; Bitzer v. Shunk, 1 487.

Watts & S. 340'; 37 Am. Dec. 469. » See Hambridge v. De la Crouee,

And see g 481. But see Trenwith v. 3 C. B. 733.

Mee.ser, 13 Phila. 366. * Hambridge v. De la Ci-ouee, supra.

1 Crane v: French, 1 Wend. 311. In And so where three partners had
so far as this case holds the judg- agreed to give the warrant of attor-
ment to merge the liability of the ney, and only two signed it, the judg-
other partners for the debt, it is not ment was set aside as to them for
the general rule. See Merger. imperfect execution. Harris v.

2 York Bank's Appeal, 36 Pa. St. Wade, 1 Chit. 833.

458. Under a statute making void 5 Gerard v. Basse, 1 Dall. 119;

393

§ 380. CONDUCT OF THE BUSINESS.

as against individual property of the other partner.' • Or, as there
is a remedy in the court rendering the judgment, a remedy cannot
be sought in chancery;' nor in the court of error;' nor by col-
lateral impeachment, as when sued in an action on the judgment."
The court will not infer without proof that the confession was
unauthorized.'

McKee v. Bank of Mt. Pleasant, 7 Oh. was no suggestion that the attorney

3d pt. 175. And see Morgan v. Rich- was irresponsible, the court refusing

ardson, 16 Mo. 409 ; 57 Am. Dec. 235; to go behind the record to inquire

Thompson v. Emmert, 15 111. 415; into the authority. Hammond v.

Everson v. Gtehrman, 10 How. Pr. Harris, 3 How. Pr. 115. . Contra, if

301. he is irresponsible. Groesbeck v.

1 Morgan u. Eichardson, 16 Mo. Brown, 3 How. Pr. 31. In St. John
409; 57 Am. Dec. 235; Ellis v. Ellis, v. Holmes, 20 Wend. 609, the court
47 N. J. L. 69; Christy.^. Sherman, refused to set aside the judgment on
10 Iowa, 535; Green v. Beals, 3 the application of creditors, or of
Caines, 254. the partner who executed the war-

2 McKee v. Bk. of Mt. Pleasant, 7 rant, saying that only the party
Oh. 2d pt. 175 ; Shedd v. Bk. of Brat- aggrieved could complain ; and in
tleboro, 33 Vt. 709. Stoutenljurgh v. Vandenburgh, 7

' Remington v. Cummings, 5 Wis. How. Pr. 229, the judgment was
138. said to be void as to those who did

* Elliott V. Holbrook, 38 Ala. 659. not authorize it ; and on confession
In an aotjon already pending in a pending action the non-assent-
against the firm, since the statute in ing partner was let in to defend, the
New York. allowing judgment to be judgment standing, however, as se-
rendered against a firm, where all curily, in Grazebrook v. McCreedie,
the partners have been sued though 9 Wend. 437; and Sterne v. Bentley,
service is had on but one, that one 3 How. Pr. 331. And see Everson v.
can execute a warrant to confess Gehrraan, 10 How. Pr. 301; 1 Abb.
judgment against the firm. Graze- Pr. 1B7, where the judgment was
brook V. McCreedie, 9 Wend. 437; againstthe explicit and known wishes
Pardeezj.Haynes, 10 Wend. 631;War- of the other partner. Of course, in
ingi;. Robinson, Hoffi. (N. Y.) Ch. 524; case of coUusion, the creditors could
Blodget v. Conklin, 9 How. Pr. 443; attack the judgment. Stouteuburgh
Leahey v. Kingon, 33 How. Pr. 309 ; v. "Vandenburgh, supra. An appear-
s. C. asLahey v. Kingon, 13 Abb. Pr. ance in admiralty by a proctor for
193 ; Binney v. Le Gal, 19 Barb. 592 ; all the defendants is sufficient, al-
1 Abb. Pr. 383. But even this rule though no authority for one is shown.
as to pending cases does not apply Hills' v. Rose, 3 Dall. 331.
where the partner seeks to confess 5 Edwards v. Pit^er, 13 Iowa, 607;
in person and' not by attorney, for Remington v. Cummings, 5 Wis. 13;^ ;
there is no presumption of authority Elliott v. Holbrook, 83 Ala. 659. 1.'
then. Binney u! Le Gal, supra. The the record states that the cognov t
English rule was applied where there was "by the defendants," this is

394

PABTICULAR POWERS BEFORE DISSOLUTION. § 881.

After dissolution tbere is, of course, no sucli power, for the party
is no longer a partner and cannot bind the firm to any new
liability.'

Contracts. — See §§ 376 and 392; to convey real estate,
§299.

DEBTS.

§381. Power to collect and receipt for debts due to firm.

Each partner in every firm has implied power to collect the
debts due the firm. This follows from necessity, for the
power must be exercised by some one, and it would be too
inconvenient and perhaps impossible for it to be by the joint
act of all; hence payment to any one partner extinguishes
the debt, whether before or after dissolution.^

And this is true even after another partner has directed
the debtor to pay to a particular partnership creditor.

As where a firm procured advances from a bank to buy goods,
and a factor who held the proceeds of the goods for the firm after
Sa'e was ordered to paj'^ them to the bank, the factor's subsequent

construed to mean by aU who were P. 555 ; Porter v. Taylor, 6 Moo. & S.

served with process. Hull v. Garner, 156; Stead v. Salt, b Bing. 103; Re

31 Miss. 145. . Barrett, 2 Hughes, 444 ; Williams v.

1 Rathbone v. Drakef ord, 4 Moo. & More, 63 Gal. 50 ; Brown v. Law-
P. 57 ; Mitchell v. Rich. 1 Ala. 228 ; rence, 5 Conn. 897 ; Noyes v. New
Waring i;. .Robinson, Hoffm. (N. Y.) Haven, etc. R. R. 30 id. 1; Gregg v.
524; Mair v. Beck (Pa. 1886), 2 Atl. James, Breese, 107; Gordon v. Free-
Rep. 218; Bennet v. Marshall, 3 Miles man, 11 111. 14; Granger v. McOilvra,
(Pa.), 436; Canada Lead Mine Co. v. 24 id. 152; Steele v. First Nat'l B'k,
Walker, 11 Low. Cap. 433; but see 60 id. 23, 26; Yandes v. Lefavour, 2
Taylor v. Hill, 36 Md. 494. Hence a Blackf. 371 ; Selking v. Jones, 52 Ind.
surviving partner cannot confess 409 ; White* «. Jones, 14 La. Ann. 681 ;
judgment in the firm name, and ex- Codman v. Armstrong, 28 Me. 91;
ecution against the firm property Vanderburg r. Bassett, 4 Minn. 243;
thereon will be set aside. "Castle v. Morse v. Bellows, 7 N. H. 568 ; Black
Reynolds, 10 Watts, 51; but query, u Bird, 1 Hayw. (N. Ca.) 273; Salmon
had he confessed in his own name. v. Davis, 4 Bin. (Pa.) 375 ; Allen v.
Id. Farrington, 2 Sneed, 526; Scott v.

2 Anon. 12 Mod. 446; Duff v. East Trent, 1 Wash. (Va.) 77; Carlisle v.
India Co. 15 Ves. 198; Brasier v. Niagara Dock Co. 5 Up. Can. Q. B.
Hudson, 9 Sim. 1 ; King v. Smith, 4 (Old Series) 660. Hence a note to one
C. &JP. 108: McKee ?;. Stroup, Rice, partner of a creditor firm by a debtor
291 ;■ Tomfin v. Lawrence, 3 Moo. & of the partnership has the same

395

g 3S2. CONDUCT OF THE BUSINESS.

payment to another partner discharges him, the bank having no
lien upon the fund.'

And if a note is made to one partner, expressing on its face to
be a firm debt, and the payee assigns it to another partner, yet be-
ing partnership property, and hence held for the firm, payment to
any of the partners is valid. °

If a creditor firm has a partner in common with another firm
"and transfers the debt to the latter, payment to the former firm
will disqualify the latter from suing upon it. Thus an accepted
bill between third persons was indorsed to the firm of Blair &
Jacaud, and by this firm to Jacaud & Gordon, these two firms hav-
ing a common partner, Jacaud. Before maturity, the drawer paid
to Blair & Jacaud securities for the extinguishment of this paper,
but Blair & Jacaud appropriated the property to their own use and
did not notify Jacaud & Gordon of the deposit so made by the
maker. Jacaud & Gordon sued the acceptor. Lord EUenborougli
held that Jacaud, as a partner of Blair, must be deemed to have
received the funds fi-om the drawers to take up this bill, and can-
not, as a partner of Gordon, contravene his own act and sue upon
it when it is already satisfied as to him. His individuality cannot
be severed.'

W6 have elsewhere* seen that the ^ight to pay any partner can-
not be restricted by notice from the other partners' not to do so,
for if such revocation of authority were permitted the whole fon-
cern could be stopped and a debtor would be unable to pay at all.

§■382. Payments not in money.' — A partner may take a
bill in payment of a debt/ even in his own name/ and pay-
effect as a note to the firm. Coursey to one partner, and thus made his
V. Baker, 7 Har. & J. 28. One joint individual property, and the amount
lessor can appoint a bailiff to distrain ought not to be paid to another part-
for rent due to all. Robinsoji v. ner where the maker has notice of
Hofman, 4 Bing. 562; 1 Moo. & P. the transfer. Stevenson v, Wood-
474. So one partner can agree that hull, 19 Eed. Eep. 575.
a bank account due the firm may be 3 Jacaud v. French, 12 East, 317.
transferred to the bank's successor. 4 g 326.
Beale v. Caddick, 2 H. & N. 326. 8For the power to trade out debts

1 Steele V. First Nat'l Bank, 60111. in property for separate use, see
23. §.411.

2 Black V. Bird, 1 Hayw. (N. Ca.) ^Heartt v. Walsh, 75 111. 200.

273. But this does not apply to a note ' Tomlin v, Lawrence, 3 Moo*. & P.
made to the firm and indorsed by it 555 ; Coursey v. Baker, 7 Har. & J. 28 ;

396

PARTICULAR POWERS BEFORE DISSOLUTION. § 382,

ment of such note or of a judgment confessed to one partner
on a firm debt satisfies the partnership debt.^

As it is not in the scope of business to take notes for collection,
if a partner receives the note of a third person from a debtor of the
fifm to collect, pay the firm and give -the debtor the balance, but
uses th6 balance in the business of the firm, he, and not the firm,
is debtor for the balance." But where a debtor gives a partner
notes to collect and apply the proceeds on the debt, and the part-
ner collects one and indorses the. amount upon the debtor's note to
the firm, this binds the firm, although the notes were receipted for
by the partner in his individual name.'

A partner has power also to compromise debts due to the
firm; * hence, one partner can bind an absent partner by
approval of an extent of insurance loss," and can settle the
loss.* And the power to collect implies the power toper-
feet a mechanic's lien to secure the debt.''

Authority to receive payment of a debt in money is certainly not
authority to receive it in any other way, and it has been stated to
be a general rule that one partner cannot receive payment of a debt
in property.' But such rule is subject to many qualifications, for
the nature of the business or usage of the trade may allow debts to
be traded out or sales to be made payable in goods." Or the other

Hogarth v. Wherley, L. R. 10 C. P. disabled to sue, because he, as a nec-

630. essary co-plaintiff, is thus in the

iChapin v. Clemitson, 1 Barb. 311. position of a person repudiating his

But an agent of the firm cannot do So. own act, as to make the limits of the

2Pickels v. McPherson, 59 Miss, power difficult to ascertain. ^

216. See Hogan v. Reynolds, 8 Ala. ^ Brink v. New Amsterdam Ins.

59, ,., Co. 5 Robt. (N. Y.) 104.

3 Brown v. Lawrence, 5 Conn. 397. * Brown v. Hartford P. Ips. Co.

4 Noyes v. Newhaven, etc. R. R. 30 117 Mass. 479.

Conn. 1 ; Doremus u Mceormick, 7 'German Bank v. Schloth, 59

Gill, 49 ; Pierson v. Hooker, 8 Johns. Iowa, 516.

70; Cunningham v. Littlefield, 1 ^Lee v. Hamilton, 12 Tex. 413.

Edw. Ch. 104. This doctrine is, how- Contra, see dictum in Vanderburgh

ever, so entangled with th6 doctrine v. Bassett, 4 Minn. 243.

that one partner having by settle- ^ Lee v. Hamilton, 13 Tex. 413, 418 ;

ment with a debtor disqualified him- Warder?;. Newdigate, 11 B. Hon. 174,

self from suing, the firm is also 177 ; 52 Am. Dec. 567.

397

§ 883. CONDUCT OF THE BUSINESS.

partners, by retaining the property thus acquired, may ratify the
transaction.'

Although the right to take land in compromise and settlement
of a sale of stock may exist in an emergency where there is no time
to consult, yet if there is ample time and no emergency, and a part-
ner takes the deed in his own name, though in good faith, the
courts are not willing to recognize the right to do so and will treat
him as a trustee who buys in "the trust property, and compel him to
account in money and not in a share of the land.°

The power to collect a debt by process of law is inTolved in the
ordinary power of collection, but in resorting to coercive measures
the tortious employment of extortionate methods does not render
the innocent partners liable.'

Any partner can act in relation to the proof of debts in bank-
ruptcy of the debtor, and can vote upon the choice of an assignee
and sign the certificate.''

§ 383. Releases. — One partner has power to release a
claim due to the firm and to bind the other partners thereby,
whether it be a claim on contract or in tort, or before or •
after dissolution, provided there be no fraud or bad faith or
collusion.*

After an action by the firm has been begun, one partner
can release the claim to recover which it. is brought,* even

iMichigan AirLineR'yuMellen, 44 .Eb parie Hall, 1 Rose, 2; Ex parte

Mich. 331; howerj v. Drew, 18 Tex. Bignold, 2 Mont. & A. 633, 655; Se

786. In Banner Tobacco Co. u. Jeni- Barrett, 2 Hughes, 444; Re Purvis,

son, 48 Mich. 459, it was said that a 1 Bankr. Reg. 163 ; Emerson v.

partner in the milling business could Knower, 8 Pick. 63.
take a stock of groceries in payment ; 6 Hawkshaw v. Parkins, 2 Swanst.

the question was not squarely pre- 539 ; Arton v. Booth, 4 J. B. Moore,

sented, however, for it arose four 193; Furnival v. Weston, 7 id. 856;

years afterwards in seeking to hold Metcalfe v. Rycroft, 6 M. & S. 75;

the other partner on new purchases Wallace v. Kelsall, 7 M. & W. -264;

to replenish the stock of groceries. Phillips v. Clagett, 11 id. 84; Nottidge

2 Russell V. Green, 10 Conn. 369. v. Prichard, 2 CI. & Fin. 879 ; Dyer v.

3 See t:'§ 465-468. Sutherland, 75 111. 588 ; Emerson v.

* Ex parte Mitchell, 14 Ves. 597 ; Knower, 8 Pick. 63 ; Bulkley v. Bay-
Ex parte Hodgkinson, 19 id. 391, 293 ; ton, 14 Johns. 887. And see § 396.
Ex parte Shaw, 1 Glyn & Jam. 137; 'Barken;. Richardson, 1 Younge&
Ex parte Bank of England, 2 id. 363; J. 363, 366; Arton «. Booth, 4 Moore,

PAETICULAR POWERS BEFORE DISSOLUTION. § 383.

where such partner had agreed not to interfere with the col-
lection of debts/ and can release the judgment if not fraudu-
lently done." But if there was fraud and collusion the
coui'ts will protect the other partners and not allow the de-
fense to be pleaded;' and if the protection of the copartner
requires it, the court will not permit one partner to discon-
tinue an action.'' A release by one partner by fraudulent
connivance or collusion with the defendant is void.'

Where a canal company owed two contractors, partners, over
$100,000 for construction of the canal, and procured a secret release
from one for a consideration of about $5,000, this was held to be
a gross fraud upon the other partner, and his action in his own
name to recover for work and labor and foreclose a mechanic's
Hen was sustained, the court saying that the other partner was not
a necessary party because in the position of one who had assigned
his interest.'

On the other hand, on proof of collusion between the_ debtor and
some of the partners, it is held in New York that the other part-
ners cannot set aside the settlement and recover thq debt or their
share of it, but only damages for waste of partnership funds, to be as-
certained on accounting. That they have the right to be placed as
if the full debt were honestly paid and they had their aliquot shares,

193; Furnival v. Weston, 7 id. 356; Loring v. Brackett, 3 Pick. 403. And

Langdale v. Langdale, 13 Ves. 167; see Holkirk v. Holkirk, 4 Madd. 50,

Jones V. Herbert, 7 Taunt. 431 ; Perl- and Winslow v. Newlan, 45 111. 145.

berg V. Gorham, 10 Cal. 130; Wilson But where a statute provides that a

V. Mower, 5 Mass. 411; Noonanu Or- non-consenting joint claimant may

ton, 31 Wis. 365. be made defendant, the objecting

1 Arton V. Booth, 4 Moo. 1,93. partner may be allowed to withdraw

2 Romain v. Garth, 3 Hun, 314. and the court will permit the other

3 Barker v. Richardson, 1 Y. & J. partners to make him a defendant.
363; Jones v. Herbert, 7 Taunt. 431 ; Noonan v. Orton, 31 Wis. 365.
Phillips V. Clagett, 11 M. & W. 84; ^Barkeru Richardson, 1 Younge'
Loring v. Brackett, 3 Pick. 403; & J. 363; Beatson v. Harris, 60 N.
Noonan V. Orton, 31 Wis. 365 ; Sloan H. 83 ; Sweet v. Morrison, 103 N. Y.
V. McDowell, 71 N. Ca. 356, 359-61. 335; Noonan v. Orton, 31 Wis. 365.
And see Skaife v. Jackson, 1 B. & 0. And see Loring v. Brackett, 3 Pick.
431. 403.

* Cunningham v. Carpenter, 10 Ala. « Canal Co. v. Gordon, 6 Wall. 561.
109; Daniel v. Daniel, 9 B. Mon. 195;

399

§ 383. CONDUCT OF THE BUSINESS.

and can make the debtor pay tliis when ascertained, even if they
had to pay the full amount less the part paid.'

A covenant not to sue is . not, however, a release, and will not
constitute a defense.' So of an agreement by one partner to pay
the debt and save him harmless,' for these are not actual releases;
the debtor's remedy is by action for breach of contract against the
partner; though to aVpid circuity of action, if no injustice would
be done, it might be treated as a release in a proper case, just as a
set-oif, possibly, against one partner, might be allowed in some
cases. A covenant by all the partners not to sue would, however,
operate as a release.''

In Richards v. Fisher, 2 Allen, 527, the firm of T., B. & R made
a demand note to the partner B.; afterwards P. retired from the
firm, H. taking his place, and T., B. & H. gave F. a bond that they
would pay all the debts of the late firm; an indorsee of the note
sued the old partners upon it, including F., who claimed that the
bond released him. It was held that the bond was no release of the
note, but was merely equivalent to a covenant not to sue, and such
covenants are only good as releases to avoid circuity of action
when no injustice will be done. If here judgment went against
T. and B. alone they could not recover from H., for in the bond
H. only agreed to save F., whereas if judgment is rendered against
F., he can, by ssuit on his bond, compel H. as well as T. and B. to pay.

A release by a partner after he had sold his interest to a
third person is fraudulent.^ So a release by one partner of

1 Sweet v. Morrison, 103 N. Y. 235. *Deux v. Jeffries, Croke's Eliz.
See Longman v. Pole, 1 Moo. & M. 233, 853.

that the other partners can jointly sBrayley v. Goff, 40 Iowa, 76.

sue a third ijeison who colluded with Here two persons bought a machine

a partner to injure them. ' This sub- in partnership, with warranty, and

ject is complicated with the doctrine gave a note in payment. In an ac-

tliat a partner who has disqualified tion on the note one can set up

himself to sue cannot, as co-plaintiff, breach of warranty, although the

seek to I'epudiate his own act, and other refuses to defend, and a re-

hence the action is defeated as to all. lease of damages by the latter after

See §g 1035-1048. . he had sold his interest in the ma-

2 Walmsley r. Cpoper, 11 A. & E. chine was held fraudulent. Dunck-
316; 3 Per. & Dav. 149; Emerson v. lee v. Greenfield Steam Mill Co. 3
Baylies, 19 Pick. 55. And see § 385. Foster, 345, where a partner, after

3 Emerson v. Baylies, 19 Pick. 55. the firm had sold a claim, attempted

400

PARTICULAR POWERS BEFORE DISSOLUTION. § 384.

a firm debt in consideration of a discharge of his separate
debt due to the partnership debtor is a fraud upon the co-
partners.^

And after a partner has sold to his copartner all his interest in
the assets, his discharge of a debt without consideration will not
bind the buyer.'' And where, after dissolution, it is agreed that
one partner shall collect the debts, a release by the other in order
to defeat an action and to subserve his private ends will not be per-
mitted to be set up as a defense.^

§ 384. Debts due from the firm. — Each member of the
firm has implied power to pay its debts.*

In Bray v. Morse, 41 Wis. 34:3, B. sued M. and P., former part-
ners, on notes made by the firm. P. made default, but M. pleaded

to release it by dating the release 2 Lunt v. Stevens, 24 Me. 534, And
back. see Gram v. Cad well, 5 Cow. 489;
1 Kendal v. Wood, L. R. 6 Ex. 243; Combs v. Boswell; 1 Dana, 473. See
Farrar v. Hutchinson, 9 Ad. & El. Legh v. Legh, 1 B. & P. 447.
641 ; Barker v. Richardson, 1 Younge * Barker v. Richardson, 1 Younge
& J. 362; Piercy v. Fynney, L. R, & J. 362; Gram v. Cad well, 5 Cow.
12 Eq. 69 ; Harper v. Wrigley, 48 Ga. 489. A composition of the debts of
495; Casey v. Carver, 42 111. 225; an insolvent debtor was signed by
Bennett v. District. Twp. of Colfax, his creditors, amongthem by E., but
53 Iowa, 689 ; Jackson v. Holloway, it did not appear whether his signa-
14 B. Mon. 108 ; Williams ■;;. Brim- ture was intended to apply to a debt
hall, 13 Gray, 462; Craig v. Hul- due him individually or a debt due
BChizer, 34 N. J. L. 363 ; Chase v. Buhl his firm. It was considered to in-
Iron Works, 55 Mich. 139; Gram v. elude the latterj and the burdeii is
Cadwell, 5 Cow. 489 ; Evernghim v. on the firm to show the contrary.
Ensworth, 7 Wend. 326; Beudel v. Emerson v. Knower, 8 Pick. 63. See
Hettrick, 45 How. Pr. 198; Broaddus Rice v. Woods, 21 Pick. 30; and Hal-
V. Evans, 63 N. Ca. 633 ; Thomas v. sey v. Whitney, 4 Mason, 206, 231.
Peunrich, 28 Oh. St. 55; Clark v. ^Innes v. Stephenson, 1 Moo. &
Sparhawk (Pa.), 2 Weekly Notes, Ry. 145; Cheap u Cramond, 4 B. &
115; Vilesw. Bangs, 36 Wis. 131 ; and Aid. 6G3; Cannon v. Wildman, 28
see §§ 410, 411. As to ratification. Conn. 472, 498; Murrell v. Murrell,
see § 427. Contra., sustaining the 33 La. Ann. 1233; Averill v. Lyman,
power to do so: Combs v. Boswell, 1 18 Pick. 351 ; Tapley v. Butterfield, 1
Dana, 473(dicfMm); Owings v. Trot- Met. 515; 35 Am. Dec. 874; Osborn
ter, 1 Bibb, 157 ; Beckham v. Peay, 3 v. Osborn, 36 Mich. 48 ; Tyson v.
Bailey (S. Ca.), L. 133; Hells v. Coe, Pollock, 1 Pa. 375; Moist's Appeal,
4 MoCord, L. 136: In Lamb u. Saltus, 74 Pa. St. 166; Scott v. Shipherd, 3
3 Brev. (S. Ca.) 130, the court were Vt. 104. And see cases under § 386
equally divided. ef seg.
Vol. I— 26 401

§ 385. CONDUCT OF THE BUSINESS.

that the firm had given B. collaterals on part of which he had
realized, hut had not credited the amount on the firm's notes. It
appeared that P., who was B.'s son-in-law, and an executor of her
husband's estate, and her manager, had taken notes and mort-
gages made to the firm and set them aside as collaterals to the
firm's debt to B., and had received payments on them, for which,
however, he had not accounted to B., and had received a convey-
ance to himself in payment of one of the mortgages. B. never
had possession of any of the collaterals and never .authorized P. to
hold them for her. M. now claimed credit for the payments and
deed to P. Held^ after the dissolution, one partner cannot act as
agent of a creditor in holding obligations due the firm as collat-
eral for the creditor; he cannot act as agent for both sides. Such
conveyance and payment may inure to the benefit of the firm, but
not of B.'

A promise by one partner, after dissolution, to pay a debt due
by the firm is the promise of the firm. As where a debtor of the
firm, in payment, transferred his claim against another firm, one
of the partners in which promised the creditor firm to pay it to
them;' or where partners are engaged with others in operating a
lottery scheme, and the plaintiff delivered his lottery ticket to one
partner, who promised to pay him the benefits, the whole firm is
liable for the prize drawn by it.'

§ 385. Release of one partner by creditor. — The general
rule, both of law and equity, that a release of one joint
debtor from liability releases all, & fortiori applies to dis-
charge copartners.*

» Whether k partner can keep a Elliott v. Holbrook, 33 Ala. 659, 667 ;
debt alive for liis own benefit after Kendrick v. O'Neil, 48 Ga. 631 ; Will-
he has paid it, see § 53L iamson v. McGiunis, 11 B. Men. 74;

2Laoy V. MoNeile, 4 Dow. & Ey. 7; Tuckerraan v. Newhall, 17 Mass. 581;

Peyton v. Str.\tfcon, 7 Gratt. 380. American Bank v. Doolittle, 14 Pick.

'Anon. V. Layfield, Holt, 434. As 123, 126; Rice v. Woods, 21 id. 30,

to the eflfect of a promise by one 33; Le Page «. McCrea, 1 Wend. 164;

partner upon the statute of limita- 19 Am. Dec. 469; Burson u. Kincaid,

tions, see S5§ 702-705. 1 Pa. (Pen. & W.) 57. To te effect-

* Cocks V. Nash, 9 Bing. 841; ual, such a release must have a

Cheetham v. Ward, 1 B. & P. 680; consK.eration, but the promise of

United States v. Thompson, Gilpin, the other partners to be solely re-

614; Willings v. Consequa, Pet. C. C. sponsible is a consideration. See

801, 307; Gray 7J. Brown, 33 Ala. 268; §505. Whether release of a per-

402

PARTICULAR POWERS BEFORE DISSOLUTION. § 385.

Only a technical release of one joint debtor is available as a de-
fense to his co-debtors. A mere promise to release a partner,
where the promise is not acted on, and no security is parted with,
is a nudum pactum, and no defense, either for such partner or his
copartners, unless under seal so as to import consideration.' An
agreement- to save harmless or indemnify is not a release, and,
therefore, no defense to the copartner; even though, to save cir-
cuity of actions, it might be so treated if there were only two per-
sons concerned." A covenant not to sue one pattner does not
release the other, for its effect is merely an agreement to indemnify
against the consequences of a suit.'

An agreement of partnership creditors to look only to the part-
nership property and to discharge one partner does not give the
separate creditors any additional rights, for it does not injure them,
nor does it bind the other partner if he pays.^

son includes debts owed by him Am. Dec. 584); Kendrick v. O'Nieil,

jointly with another depends on the 48 Ga. 631 ; Shotwell v. Miller, 1 N.

intention of the parties as shown by J. L. 95 [81].

the terms of the release. A release 3 Dean v. Newhall, 8 T. R. 168;
of all causes of actions, suits, debts, Walmesly v. Cooper, 11 Ad. & El.
etc., which the releasors now have 316; Roberts r. Strang, 38 Ala. 566;
or ever have had in respect to any Mason v. Jouett, 2 Dana, 107 ; Walker
matter from the beginning of the v. McCuUoch, 4 Me. 431; Lunt v.
world, includes liabilities as partner,' Stevens, 24 id. 534; McLellan v. Cum-
Hall V. Irons, 4 Up. Can. C. P. 351. berland Bank, 24 Me. 566; Shaw v.
A release of a partner from all Pratt, 22 Pick. 305 ; Bemis v. Hoseley,
claims individually, and as one of 16 Gray, 63; Berry v. Gillis, 17 N. H.
the firm, is a discharge of him in 9 (43 Am. Dec; 584) ; Harrison v.
his capacity of surviving partner. Close, 3 Johns. 448; Rowley u Stod-
the copartner having subsequently dard, 7 id. 207 ; Catskill Bank v. Mes-
died. Beam v. Barnum, 21 . Conn, senger, 9 Cow. 37 ; Bank of Chenango
200. A release of all demands, made v. Osgood, 4 Wend. 607 ; De Zeng v.
lo a debtor after he had assigned all Bailey, 9 id. 336; Hosack v. Rogers,
of his property to a preferred cred- 8 Paige, 229. See, also, Clayton v.
itor, for the benefit of his creditors, Kynaston, 2 Salk. 573 ; Lacy v. Kyn-
is void for fraud, if such preferred aston, id. 575; ILd. Raym. 688; Hut-
creditor was the debtor's dormant ton v. Eyre, 6 Taunt. 289; Price v.
jiartner and this fact was concealed. Barker, 4 E. & B. 760; Dureil v.
(^arter v. Connell, 1 Whart. 393. Wendell, 8 N. H. 369; Couch v. Mills,

1 Evans v. Carey, 29 Ala. 99 ; Fagg 31 Wend. 424.

V. Hambel, 31 Iowa, 140. * Witter v. Richards, 10 Conn. 37.

2 Berry v. GiDis, 17 N. H. 9 (43

403

§ 387. CONDUCT OF THE BUSINESS.

§ 386. reserving claim against rest. — If the release

is clearly intended not to prevent an action against all the
debtors including the releasee, and is for his benefit alone, it
is no discharge of the debt, as where there is a reservation of
the right to sue all. This is in effect an agreement not to
make the debt out of the private property of the rieleasee.'

So if one of the partners is severally as well as jointly liable, as
where one partner is drawer or acceptor of a bill on or by the firm,
a release of the other partners is not a release of him,' nor is a
release of the drawer a release of his liability in the capacity of one
of the drawee firm.'

In Gilpatrick v. Hunter, 24 Me. 18, it was held that, in case - of
tort against the person, the damages can be neither estimated nor
divided, and a release of one releases all; but in McCrillisi). Hawes,
38 Me. 566, it was held that if the tort was conversion of property,
a settlement with one partner for his half did not preclude an ac-
tion against the other, and the declaration could be for conversion of
half, although it was agreed that under such declaration but half
of the half could be recovered.

A release of a partner, reserving the claim against the
other, is no discharge of the latter's liability on whatever re-
mains due.*

§ 387. Statutes. — Many of the United States have stat-
utes enabling a creditor to compromise and settle with or

1 Solly V. Forbes, 3 Brod. & Bing, ler v. Herrick, 19 Johns. 129 ; Bank
38. And see the fallowing cases: of Chenango v.[ Osgood, 4 Wend.
Thompson v. Springall, 3 C. B. 540 ; 607 ; Green wald v. Raster, 86 Pa. St.
Willis V. DeCastro, 3 C. B. N. S. 216 ; 45 ; Williams v. Hitchings, 10 Lea
Price V. Barker, 4 E. & B. 760. And (Tenn.), ,338. And see Kirbyu. Tay-
see Bateson 1). Gosling, L. E. 4 C. P. 9. lor, 6 Johns. Ch. 242; Lysagt v.

2 Hartley v. Manton, 5 Q. B. 247. Phillips, 5 Duer, 106. But see Parme-

3 Pearce v. Wilkins, 3 N. Y. 469. lee v. Lawrence, 44 111. 405. A re-

4 Browning v. Grady, 10 Ala. 999 ; lease of all claims against J. S. was
Northern Ins. Co. v. Potter, 63 Cal. held not to be a release of J. S.'is
157; Beam v. Barnum, 31 Conn. 300; firm, in Reading R, R. v. Johnson, 7
Seymour v. Butler, 8 Iowa, 304; W. & S. 317. The other partners are
Gardner v. Baker, 35 id. 343 ; Clagett only liable for the balance, although
V. Salmon, 5 Gill & J. 314, 351 ; their ratable proportion exceeds it.
Shed V. Pierce, 17 Mass. 623; Good- Lowell Nat'l B"k v. Train, 3 Mich,
now v. Smith, 18 Pick. 414; Chand- Lawyer, 27.

404

PARTICULAR POWERS BEFORE DISSOLUTION. § 388.

release one joint debtor without prejudice to his claim against
the rest.'

These statutes apply to partnerships, for partners are
joint debtors.^

If one partner is thus released pendente lite and dismissed from
the case the issue is not changed, and depositions already taken
are competent, and if notes are sued upon they in effect stand for
the balance due.*

Under these statutes a release may be made in and under the
law of one state and sought to be availed of in another state. In
such case its construction, at least inter se, would be governed by
the law under which it purported to be made.* But its effect on
the other partner would be controlled by the law of the forum.'

§ 388. Inter se. — In'Lord v. Anderson, 16 Kan. 185, a partner
sued his equal copartners for an accounting and settlement, and
pending suit settled with one of them for $100 for his share of the
estimated balance. It turned out that the entire balance due the
complainant from the two defendants was $1,281. It was of course,
held that this released one-half the debt, and he could only recover
.50 from the other defendant.

1 This Is true of Calipoenia, Con- 109. And although the considera-
NECTICUT, Dakota, Kansas, Michi- tion of the relpase was taken out of
GAN, Minnesota, Mississippi, Mis- partnership funds. Stitt v. Cass, 4
sonRi, Montana, Nevada, New Barb. 93. That "joint debtors" in a
■Jersey, New Yoek, Ohio, Pbnn- statute includes partners is shown
sylvania, Rhode Island, South elsewhere by the cases on statutes
Carolina, Vermont, Virginia, Wis- allowing service of summons on one
CONSIN. And that the settlement is joint debtor to bind the rest.

in full of each partner's entire share ? Holdridge v. Farmers' & Mech.

of liability, whether in fact so or Bank, 16 Mich. 66.

not, is enacted in Michigan. Minne- ^geymour v. Butler, 8 Iowa, 304;

SOTA. Montana, New Jersey, Ohio, - Holdridge u Farmers' & Mech. Bank,

Rhode Island, South Carolina, 16 Mich. 66.

Vermont. The copartners' right to 5 Seymour u.'Butler, supra; Green-
call upon such partner for their pro- wald v. Kastpr, 86 Pa. St. 45 ; but see
]5ortion is reserved in Kansas, Mich- Beam v. Barnum, 31 Conn. 200 ; Rice
IGAN, Minnesota, Missouri, Mon- u McMaitin, 39 id. 573; Holdridge «;.
TANA, New Jersey, New York, Farmers' & Mech. B'k, 16 Mich. 66,
Ohio, Pennsylvania, South Caro- which seem to regard the effect of
UNA. . ' the release on the other partners as

2 Northern Ins. Co., u. Potter, 63 not a matter of remedy and to be
CaL 157 ; Grants v. Holmes, 75 Mo. governed by the lex loci contractus.

405

§ 389. CONDUCT OF THE BUSINESS.

In a foot-note the reporter suggests a supposed case, viz. : Had
the partners believed that $1,200 would be found due the complain-
ant and one of them had settled with him for $600, and it was
found that but $400 in all was due him, would he be allowed to re-
cover half of this from the other partner and thus receive $800
where only $400 was due ? Clearly the payment by the released
partner was at his own peril, and whether he could recover it back
or not is, as to the other defendant, res inter alios acta.*

NOTICE TO ONE.

§ 389. is notice to all. — Eesulting from the agency

of a partner, it follows that notice to one member of a firm
of matters within the scope of the business, or in reference
to a partnership transaction, and which it is his duty to com-
municate to his copartners, if he is within reach and able to
tell them, is notice to all. In such cases, if he fail to notify
the other partners, they cannot avail themselves of their
' ignorance of the transactioiis of one of their number in act-
ing as their agent.

Thus, notice served upon one of the defendant partners to take
depositions is notioe to all; * and notice of appeal by one partner ia
notice to all.' If partners have signed a submission to arbitration,
notice to one partner thereafter is sufficient.* Notice to one of a
firm of consignees or factors to sell is notice to all.' If partners
are lessees, no doubt notice to one to terminate the tenancy is suf-
ficient.' Plaintiff's acceptance of a guaranty made by a firm, noti-
fied to the partner who delivered it to him, is notice to the firm of
the acceptance.'

So of a demand on the firm in the scope of its business; as where
a firm of attorneys receives money belonging to a client who de-
mands it of one, this jis a demand on the firm.' And if partners are

' 1 A mei-e majority has no power to * Howland v. Davis, 40 Mich. 545.

release the liability of one partner to * See Walker v. Sharpe, 103 Mass.

the firm. § 433. 154.

2 Cox V. Cox, 3 Porter (Ala.), 533; 'New Haven Co. Bk. v. Mitchell,

, Spaulding v. Ludlow Woolen Mill, 36 15 Conn. 308, 319^

Vt. 150. 8 McFarland v. Crary, 8 Cow. 253

3 Miller v. Perrine, 1 Hun, 620. (afiPd, 6 Wend. 397).
* Haywood v. Harmon, 17 111. 477.

406

PARTICULAR POWERS BEFORE DISSOLUTION. § 390.

mortgagees, a request to one to cancel the mortgage is a request to
all, so as to make them liable to a statutory penalty.'

So demand upon and refusal by one partner is competent evidence
of a conversion by the firm.''

§ 390. So of knowledge of one partner. — Where one partner
of a legal firm had drawn up the defendants' articles of partnership
and knew that certain partners were not liable for the services sued
. for, this is knowledge on the part of all the plaintiffs.'

Where the debtor of a firm paid the debt to one partner, but told
another that he had not paid, whereupon the other, in winding up
the firm, sued him, he is not precluded to deny his latter statement;
the other should have known.^

Where D. bought land of a person, giving his notes with sureties,
and agreed with the sureties to secure the notes by shipping bark
to the firm of B. & Co., the proceeds to be applied to take up the
notes, and. B. had notice of the purpose of the shipments, B. & Co.
having bought the notes, cannot sue the sureties in violation of the
agreement."

A firm bought logs on credit and sdught a rescission on the
ground that it was represented that the logs were afloat, but one
partner knew they were not afloat; this is knowledge on the part of
all.'

F. was trustee of Mrs. T. to manage a fund free from her hus-
band's control; he loaned the trust money to his firm, who secured
it by a note and mortgage payable to Mrs. T. Payments were
made on the note to her husband without her authority. F.'s
knowledge of the husband's disability to control her property is
notice to the firm.'

A. & B., partners, bought lumber of the defendant. B. measured
the lumber before dissolution and found a deficiency in quantity.

1 Renfro v. Adams, 62 Ala. 303. it into ties or staves and the firm

2 Nisbet V. Patton, 4 Rawle, 120 ; purchased it after one partner had
Holbrook v. Wight, 24 Wend. 169 ; notice. Tucker v. Cole, 54 Wis. 539 ;
Mitchell V. Williams, 4 Hill, 18; ex- Gerhardt v. Swaty, 57 id. 24.

cept where the taking or detention is sBurritt v. Dickson, 8 Cal. 118.
not a partnership act, as in Taylor v. » < Bigelow v. Henniger, 33 Kan. 362.
Jones, 42 N. H. 25. So if the firm SBaugher v. Duphorn, 9 Gill, 314.
purchases property from a person fSHubbardston Lumber Co. v,
whom one partner knows to have ob- Bates, 31 Mich. 158.
tained it by trespass, as where the i Tucker v. Bradley, 33 Vt. 324.
seller cut plaintiff's timber and made

407

§ 392. CONDUCT OF THE BUSINESS.

A., after dissolution, paid the note. The knowledge of the former
is that of the latter; A. cannot sue for money had apd received.
The court say B. knew it, therefore A. knew it.'

§ 391. Notice before the partnership is formed. — ^^Incom-

ing partners may be likewise affected.

Where H. contracted to deliver glass to defendants at a certain
pric?, and afterwards proposed a different price, to which they
did not accede, and H. then transferred the contract to his firm, and
they, supposing the price to be that last mentioned, filled the or-
der, they are affected with notice of all that he knew, and can only
recover the contract price.'

Where W. was tenant in common of oyster beds with B-', who
lived in another town, and W. took in D. as a partner, and shipped
R.'s share of the oysters to D., W.'s knowledge is notice to D., and
R. can compel D., as surviving partner, to account.^

But notice before the firm is formed is not sufficient.

Where M. and G. were negotiating to form a firm, pending
which G. was negotiating' to buy premises for the future firm, and
on the (lay before the purchase M. learned that the seller was de-
frauding his creditors in this disposition of his property, this
does not affect G. The court say the authorities are limiting "the
doctrine of constructive notice, and that they will not stretch it to
affect an innocent man who pays cash down, even though the other
partner was to get an interest in the purchase.''

And where a person holds property with notice of an unrecorded
license to use it, and another, without such notice, is about to form
a partnership with him, and buys an undivided interest in the
property, to be held by both for the use of the firm, he holds his
share free from the incumbrance, for they were not then partners;
but if he afterwards buys out his partner, he holds as tenant in
common with the licensee, having had notice on buying the second
half.'

§392. On purchases of property. — So, where partners
make a purchase, the knowledge of one of their number

1 Snarr v. Small, 13 Up. Caa. Q. B. 283, 389 (reversed on other points.
135. in 38 id. 614).

2HoltonuMcPike, 27Kan. 286. *Duflail v. Goodwin, 33 (irant'.s

SRuckman v. Decker, 38 N. J. Eq. Oh. (Up. Can ) 431.

5 Herbert v. Odlin, 40 N. H. 267.
408

PARTICULAR POWERS BEFORE DISSOLUTION. § 393.

of a claim or lien upon the property is knowledge of the
firm. Thus, where partners tooli a mortgage upon land,
and one partner knew of a prior mortgage upon it, the record
of which was not constructive notice because of defective
execution, this is notice to all.'

B. owed H. $205, and in payment conveyed land to him, tak-
ing back a bond for reconveyance on repayment, but never re-
corded the bond, and conveyed the land to the defendant firm, in
payment of his debt to them, C, the active partner, having notice
of the bond. B. paid C. the $205, and C. agreed that a reconveyance
should be made, instead of which the firm dissolved, C. deeply in-
debted to another partner, J., to whom he conveyed the land, J.
having no knowledge of the bond or the payment. J. is affected
with notice, and is bound to carry out C.'s agreement to reconvey.'

§ 393. Of defenses to mercantile paper. — So, where a
partnership becomes possessed of mercantile paper, the
knowledge of defenses on the part of one partjier is notice
to the firrh. As where one partner knew that a note dis-
counted by him for the firm was void for usury,' or where
an accommodated party is a member of a firm to whom the
paper subsequently comes, the firm has notice that it is ac-
commodation paper.* So, if a note is made to one partner,
and he transfers it to the other, or to his firm, the latter is
not a bona fide holder without notice.'

In Liddell v. Grain, 53 Tex. 549, it was held that, where one
partner made false representations in a sale of his individual inter-
est in the partnership property, for which he received the buyer's
note, the other partner could have the rights of an innocent holder

1 Watson «. Wells, 5 Conn. 468; Stockdale «. Keyes, 79 id. 251 ; Pease
Herbert v. OJlin, 40 N. H. 267, v. McClelland, 3 Bond, 43, where

2 Barney I). Currier, 1 D. Chip. (Vt.) they were partnei's for that trans-
315 (6 Am. Dec. 739) ; and another action only ; Hubbard v. Galusha, 83
example of such notice will be found Wis. 398. In Stockdale v. Keyes,
in Marietta & Cin. R. R. v. Mo wry, where a factor of a flrmcollusively
38 HuQ, 79. - procured the firm's signature to an

* PovsseU V, Waters, 8 Cow, 669, 691. accommodation note, and a banking
< Sparrow v. Chismau, 9 B. & C. partnership in which he was a mem-

241 ; Quinn v. Fuller, 7 Cush. 334. ber discounted it, his knowledge was
5 Otis V. Adams, 41 Me. 258 ; held to be theirs.

McClurkan v. Byers, 74 Pa. St. 405;

409

§ 394. CONDUCT OF THE BUSINESS.

of the note, if he had no notice, because the sale, being of his indi-
vidual interest, and not of partnership property, was not a trans-
action in the scope of the business.

Where the burden of proof is upon partners who are plaintifi^, as
indorsees of a note, in aa action upon it, to show that they took it
in good faith, they must prove that, all the partners were ignorant
of the fraud or defense between the maker and payee, for, as notice
to one is notice to all, ignorance of one cannot be" ignorance of all.
Otherwise an ignorant partner could be put forward to purchase
because of his innocence.'

§ 394:. Knowledge obtained in other capacities. — Where a
partner was the director and vice-president of a bank, in which the
firm owned stock, and the firm sold its stock to one H., who was
indebted to the bank, and H.- sold the stock to the bank, and got
credit for money to pay the firm for it, upon which he checked in
favor of the firm, the director partner is affected with knowledge
that H. had no funds, except what he got from the sale of the stock,
and the bank had no power to buy its own stock; therefore, the
,bank can compel the firm to take back the stock and return the
money to it.'

Transfer of a note to a firm, one of its members being trustee of
the company owning the note, is with notice of want of authority
in the company tq transfer it.^

D. was a director in a corporation which was indebted to the firm
of D. & Co., of which he was a member, and the corporatiomnade
a note payable to a bank, agreeing that if its discount was procured
they would pay D. & jCo. their debt. The note was delivered to
D. to procure such loan, and the bank discounted it and handed
him the proceeds; but he paid only part of the debt to D. & Co.,
and used the balance for other purposes. Here- it was held that the
debt was not paid, because D. took the note, and received the
money in the capacity of director, and not of partner, and it was
therefore the defendant's money.*

So where one firm receives a note indorsed by another firm, in
payment of the individual debt of a member of the latter, and
therefore knows the note is unauthorized, and the firm sold the

1 Frank v. Blake, 58 Iowa, 750. 3 Smith v. Hall, 5 Boavr. 319.

2 Savings Bank v. Wulfekuhler, 19 * Duncklee v. Greenfield Stearu
Kan. 60. See, also, Merchants' Bank Mill Co. 3 Foster (33 N. H.), 245.

V. Rudolf, 5 Neb. 537.

410

PAETICULA.R POWERS BEFORE DISSOLUTION. .§ 395.

note to a bank in which one of its partners was director, his knowl-
edge is not its knowledge, because not acquired in its business.'

§ 395. As affected by. scope of business. — The notice to a
partner, to affect the firm, must be a notice in reference to a
transaction within the scope of the business.'^

In Bignold v. Waterhouse,^ one member of a firm of carriers
collusively agreed, for a consideration for his own benefit, to carry
parcels for B. free of charge. B. was aware of a rule of the firm
not to be liable for parcels of over £5 value, without notice of the
fact and entry of the parcel as such. Here the agreement to carry
free of charge being outside the scope of the partner's authority,
such partner's knowledge of the value of the parcel is not notice
to the firm.^

So where he has trust funds in his hands, and uses them for the
firm, his knowledge as trustee of the abuse of trust is not notice to
the firm of the nature of the funds.'

And for the same reason notice to a firm will not, as a construct-
ive notice, affect the separate individual interests or rights of a
membernot connected with thosei of the firm." Of course where an
averment charges partners with notice, the default of one part-
ner is not an admission of notice against copartners who plead
want of it.'

And vice versa if one partner is the agent of a third person, his
knowledge of the limitations upon the powers of the partners is
not knowledge of such person in matters not relating to the agency.
As where T. & Co., being agents of the plaintiff, dissolved, and T.
formed the new firm of W., T. &. Co., the new 6xm agreeing not to
deal in repairs, and T. then obtained a renewal of the agency from'
the plaintiff, and receipted to. the plaintiff for work done in repair-
ing, T.'s knowledge as a member of the firm is not the knowledge

1 Atlantic State B'k v. Savery, 82 pther partner of the character of the
N. Y. 291 (aff. 18 Hun, 36). funds, notice to the firm. Evans v.

2 Coon V. Pruden, 25 Minn. 105. Bidleman, 3 Cal. 435.

3 1 M. & S. 253'. , 6 Goon v. Pruden, 35 Minn. 105 ;
■•And see Laopy v. Hill, 4 Ch. D. Boiling t;.. Anderson, 4 Baxt. (Tenn.)

537, that knowledge of the clerks of 550.

the firm, of the guilty partner's con- ' Pengnet v. McKenzie, 6 Up. Can.
duct, is not notice to the firm. C. P. 308 ; Petty v. Hannum, a

'See § 481. Nor is notice to an- Humph. 102.

411

g ;;»G. CONDUCT OF THE BUSINESS. ~

of the plaintiff, for in contracting to form the relation of principal
and agent, they are in antagonistic positions.'

Where a member of two firms made a note in the name of one
firm, payable to a member of the other for a loan by him to it, and
the articles of the maker firm were claimed in argument to' exclude
the power to borrow, it was urged that the knowledge of the com-
mon partner was notice to the payee, but a recovery was allowed
by the court without noticing the point.''

A., being indebted to B. & C, proposed that B. & G. should make
advances to him against consignments by him to his agents abroad,
the proceeds of sales above the advances to be credited on the debt.
And B. & C. accordingly made the advances, and afterwards di-
rected the consignees to remit to the firm of C. & D., bankers,
instead of to themselves; C. being a common partner in both firms.
B. & C. became bankrupt. It was held that C. & D. had notice
through the common partner that the ■ remittances were appropri-
ated: 1st, to repay the advances (which had been made by accept-
ances); 2d, to discharge the old claim against A.*

§ 396. As affected by duty and opportunity to communi-
cate.— The knowledge of an absent partner, where.it is not
of a matter which it was his duty to communicate to his
copartners, as in some business done or commenced by him,
is not constructive notice to the firm.

Thus, where defendant buys goods of a firm, without disclosing
that he is buying as agent of another, he is personally liable
therefor, although on a previpus occasion he had notififid the now
•absent partner that he desired to buy as such agent, which was
then refused because the firm did not have the goods on hand.'*

So, where the firm of R., H. & E. having hay to sell, the defend-
ant L. asked R. to sell to him, stating that he desired to purchase as
the agent of K. R.. replied that the hay was not ready, and L. said
he would call again. Four weeks afterwards L. bought the hay of
H., another partner, not disclosing that he purchased as agent. L.
was held personally liable as an agent dealing in his own name,

1 Aultman & Taylor Mfg. Co. i). Gano v. Samuel, 14 Oh. 593, that tlio
Webber, 4 III. App. 427. partner had power to borrow,

2 Moore v. Gano, 13 Oh. 300. It 3 Steele v. Stuart, L. R. 2 Eq. 84.
was subsequently held, however. In * Baldwin v. Leonard, 39 Vt. 2 0.

413

PARTICULAR POWERS BEFORE DISSOLUTION. g 398.

the agency being unknown. The prior conversation with R. is not
part of the bargain, because R. was not in duty bound to communi-
cate it, and could assume that L. would notify the other partners if
he bought from them.'

§ 397. Protesting notes, etc. ; demand on one. — If the firm
is the maker of a note or acceptor of a bill, presentation to
one partner or demand of payment upon one is sufficient to
cliarge the iijdorsers. ^

And after dissolution a demand upon one is a demand
upon all to charge indorsers. This follows from the author-
ity of each partner to wind up, and in so doing to pay debts,
and hence each represents all."

§ 398. notice to one of indorsing firm. — If the firm

is an indorser, notice of non-payment or protest served upon
one partner binds the firm.*

If, however, one partner lives where the note is protested, and
the other has moved away, it is not due diligence to send notice
only to the one abroad, and the one at home is not bound by it."

Where C, in San Francisco, was a partner in the house of Page,
Bacon & Co., of St. Louis, and drew a draft in their names, notice
of dishonor on the firm in St. Louis binds the partners there.*

1 Baldwin v. Leonard, 39 Vt. 260. makers, who suffer judgment by de-

2 Porthouse v. Parker, 1 Camp. 82 ; fault, service of n rule nisi upon ooo
Mt. Pleasant Branch of State Bank of the defendants to compute prin-
V. McLeran, 26 Iowa, 306 ; Shed v. cipal and interest is service upon all,
Brett, 1 Pick. 401; Hunter i". Hemp- because they are as to it partners,
stead,! Mo. [67]. 48 (13 Am. Dec. CoUyer'on Part. § 443, citing Fig-
468); Erwin v. Downs, 15 N. Y. 575. gins v. Ward, 2 Or. & M. 424; Garter

3 Brown v. Turner, 15 Ala. 832; v. Southall, 5 M. & W. 128.

Barry v. Crowley, 4 Oill, 194; Gates <Hume v. Watt, 5 Ean. 34; Nott
V. Beecher,. 60 N. Y. 518 (19 Am. v. Douming, 6 La. 684; Magee v.
Rep. 207) (infra, 3 Th. & C. 404); Dunbar, 10 id. 546; Dabney u. Stid-
Fourth National Bank v. Heu- ger, 4 Sm. & Mar. 749 (with a doubt,
schen, 52 Mo. 207. And demand upon however, in case the indorsement is
the agent of one partner when both not joint); Bouldin v. Page, 24 Mo.
are absent is sufBcient. Brown v. 594; Miser v. Trovinger, 7 Oh. St.
Turner, SMpra. Demand after death 281, 287; Burnet u Howell, 8 Phila.
should, of course, be upon the sur- 531.

vivor. Cayuga Co. Bank d. Hunt, 6 Hume v. Watt, 6 Kan. 34.
2 Hill, 635. So under tlie old English « Bouldin v. Page, 24 Mo. 594.
practice, in an action against joint

413

§ 399. CONDUCT OF THE BUSINESS.

Statutes making partnership (contracts joint and several affect the
remedj' only, and do not alter the rule that notice to, one is notice
to all.'

And notice of protest to one partner of non-payment of a
note or bill maturing after dissolution is notice to all, for
th6 same reason that demand upon one is demand upon the
firm.' And after death of a partner, notice to the surviving
partner binds the estate of the decedent.'

§ 399. dispensed with.— One partner of an indorsing

firm may waive demand and notice,'' even after dissolution,
provided the note be not yet matured, because it is not a
new contract, but a dispensing with certain evidence;' or
may direct the particular mode or place of notice.*

If the drawer is partner of the acceptor firm, or if a part-
ner draws upon his firm, the dishonor of the bill need not
be notified to the drawer; the knowledge of the firm is his
knowledge.' So of a draft by the firm upon one partner.'

1 Dabney v. Stidger, 4 Sm.' & Mar. son Nat'l Bk. 66 Md. 488. Hence, an
749. , admission of liability by one partner

2 Coster V. Thomason, 19 Ala. 717 ; was held competent evidence as tend-
Nott V. Douming, 6 La. 684 ; Slocumb ing to prove notice or waiver. First
V. Lizardi, 21 La. Ann. 355; Hub- Nat'l Bk. v. Carpenter, 34 Iowa, 433.
bard v. Matthews, 54 N. Y. 43 (13 If the note was indorsed for accom-
Am. Eep. 563), where the dissolution modation, and the holder knew this,
was by war, and the partner in hos- it was held that one partner could
tile territory was held bound by not bind another by any promise as
notice on the residents; Bank of to its payment, because as to this
Commonwealth v. Mudgett, 44 N. Y. they are not partners. Baer v. Lep-
514, on the facts; Burnet v. Howell, pert, 13 Hun, 516.

8 Phila. 581. sNutt v. Hunt, 4 Sm. & Mar. 703;

3 Dabney v. Stidger, 4 Sm. & Mar. Windham Co. Bk. v. Kendall, 7 E.
749. See Cocke v. Bank of Tenn. 6 I. 77.

Humph. 51. ' Porthouse v. Parker, 1 Camp. 82 ;

4 Star Wagon Co. v. Swezey, 53 Rhett v. Poe, 3 How. 457; Fuller v.
Iowa, 394; S. C. 59 id. 609; Darling Hooper, 3 Gray, 334; Gowanv. Jack-
V. March, 23 Me. 184; Farmers' & son, 30 Johns. 176; West Branch
Mer. Bk. v. Lonergan, 31 Mo. 46 ; Bank v. Fulmer, 3 Pa. St. 399 ; Har-
Windham Co. Bank v. Kendall, 7 R. wood v. Jarvis, 5 Sneed (Tenn.), 375.
I. 77. 8 Porthouse v. Parker, 1 Camp. 83 ;
, 6 Darling v. March, 33 Me. 184; Star N. Y. & Ala, Contrac, Co. v, Meyer,
Wagon Co. v. Swezey, 52 Iowa, 394 ; 51 Ala. 325.

s. c. 69 id. 609; Seldner v. Mt. Jack-

414

PARTICULAR POWERS BEFORE DISSOLUTION. § 400.

§ 400. partner common to two firms. — So if a part-
nership draws on another partnership and the latter accepts, if one
of the partners is a member of both firms, no notice of dishonor
is necessary to charge the drawers.'

Where one partner made a note to the order of his firm and they
indorsed it over, but the maker did not pay it and it was not pro-
tested, the release of the firm by not protesting does not release
him as the original promisor;" nor does his knowledge of the dis-
honor bind them, for his promise as maker is distinct from their
liability as a firm. Their contract is to be liable on condition of
demand and notice, and performance of the condition is not .ex-
cused by the relation between them. The firm would not have
been charged by actual infornjation of dishonor."

And if one firm makes a note to another firm having a partner
common to both, the latter firm are not liable as indorsers unless
there has been due demand and notice.'

So if maker and indorser are or had formerly been partners and
the note was for a partnership debt.*

The difference between the last three cases and those which pre-
cede is this: In the last, non constat biit that if the note had been
presented it would have been paid, for the parties previously liable
may have funds of which the drawer or indorser has no knowledge.
But in the former cases of a draft by a partner on his firm, he
knows at the time of drawing whether they are solvent or not, or
whether they have funds belonging to him with which to meet the
paper.

Deeds.— See Sealed Instruments, § 413.
Delivery. — § 375; tender to one partner, § 390.
Guaranty, security and accommodation. — The want of
power in a partner to use the firm name for such purposes

1 N. Y. & Ala. Contracting Co. v. s Dwight v. Scovil, 2 Conn. 654;

SelmaSav. Bk. 51 Ala. 305; 23 Am. Poland u Boyd, 33- Pa. St. 476. That

Rep. 552; Woodbury w. Sackrider, 2 the indorser was a member of the

Abb. Pr. 403 ; West Branch Bank v. maker firm does not excuse want of

Fulmer, 3 Pa. St. 399. In Taylor v. protest, though the firm was insolv-

Young, 3 Watts, 389, the bill by an ent and the indorser knew the note

outgoing partner upon his firm was was not paid. iJe Grant, 6 Law Re-

professedly on his own behalf and porter, 158.

protest was held necessary. ^ Morris v. HuBSon, 4 Sandf. 93.

2 Coon V. Pruden, 25 Minn, 105.

415

§401. CONDUCT "OF THE BUSINESS.

as these was considered, for the sake of convenience, with
the power to make bills and notes. ^

Indorse, power to. — As a power of disposition, § 401 ; in
accommodation, § 349.

Insure. — Power to procure insurance on property, § 409.

To mortgage personal property, §§ 403, 406 et seq.

To pay.— See § 384, et seq.

To pledge.— §406.

PERSONAL PROPERTY", POWER OVER.

§ 4:01. Power to sell. — Each partner has, by reason of
his agency, power to sell any specific part of the partner-
ship property which is held for the purpose of sale, and
make a valid transfer of the entire title of the firm in it. ^

Some of the cages and many of the dicta seem to apply this rule
to chattels of erery kind, whether held by the firm for purposes of
sale or not.' Thus, a sale or mortgage of a ship by one partner in
the firm name has been held good.* But I have no doubt but that
the power of sale must be confined to those things held for sale,
and that the scope of the business does not [include the sale of
property held for the purposes. of the business and to make a profit
out of it, and that this only is the true rule."

The power of disposition is not confined to tangible chat-
tels, but extends to choses in action. 'Each partner has the-
same power to sell and assign them that he has over other

1 § 349 et seq. ^ Hewitt v. Sturdevant, 4 B, Mon.

2 For power to contract to convey 453, that a sale of a steamboat
real estate, see § 299. owned for'profit is void. Cayton v.

3 Clark V. Eives, 33 Mo. 579. Hardy, 87 Mo. 536, that a sale of
*Ex parte Howden, 3 Mont. D. & working oxen by one of a farming

DeG. 574; Lamb v. Durant, 12 Mass. partnership is void. Mussey ^..Holt,

54, 57 (7 Am. Dec. 31); Patch v. 24 N. H. 248 (55 Am. Deo. 234), of

Wheatland, 8 Allen, 102 [contra, a lease of partnership real estate by

Hewitt V. Sturdevant', 4 B. Mon. one partner. Hudson v. McKenzie,

453); The Wm. Bagaley, 5 Wall. 377, i E, D. Smith, 338. These questions

406. But a sale by a partner in charge have more frequently arisen on at-

of a ship at sea will give title as 'tempts to sell the entire effects of

against a prior sale of the partner the firm and will be considered more

at home. Lamb v. Durant,, supra. fully in treating of such attempts,

416

PARTICULAR POWERS BEFORE DISSOLUTION. § 401.

personal property;^ as to change the bank account of a firm
conducted in the name of one partner to a distinctively firm
account.^

So a member of a mining partnership can agree that ore shall be
delivered to a mill in sufficient quantities.^

Each partner has the same right to sell and indorse over
mercantile paper belonging to the firm that he has to sell
any other property before dissolution.^

An indorsement of a note payable to the firm by one partner in
his individual name, though it does not convey the legal title in
the note, is a good assignment and conveys the entire beneficial in-
terest of all the partners.'

So where a note was payable to Propeller Ira Chaffee, an indorse-
ment of it in that name by the managing partner binds the firm.'

An indorsement thus: " I hereby assign," etc., signed in the firm
name, conveys the firm's title.'

Where the partners divide the 'notes of the firm between them,
each can indorse the firm name on his own notes to perfect his
own title.*

As attorneys sell claims when authorized, a sale of notes by
one of the firm, if within the apparent scope of the business, may
bind the owner of them and the copartners, although there was
in fact no right, to sell them.'

Where a note was made to partners in their individual names,

1 CuUum V. Bloodgood, 15 Ala. 34; Alabama Coal Min. Co. v. Brainard,
Caulfleld v. Sanders, 17 Cal. 569 ; 35 id. 476 ; Manning v. Hays, 6 Md.
MillsuBarber, 4Day, 428; RaDdolph 5; First Nat'l B't v. Freeman, 47
Bank v. Armstrong, 11 Iowa, 515, Mich. 408; Commercial B'k t;. Lewis,
assignment of a judgment ; Everit v. 13 Sm. & Mar. 336 ; Windham Co.
Strong, 5 Hill, 163; McClelland v. B'k v. Kendall, 7 R. L 77; Walkers.
Remsen, 36 Barb, 633; 14 Abb. Pr. Kee, 14 S. Ca. 143; 18 id. 76; Barrett
831 ; 33 How. Pr. 173 ; 3 Keyes. 454 ; v. Russell, 45 Vt. 43.

3 Abb. App. Dec. 74; KuU v. Thomp- 5. Planters' & Mer. Bank v. Willis,

son, 38 Mich. 685; Clarke v. Hoge- 5 Ala. 770; Alabama Coal Min. Co.

man, 13 W. Va. 718. v. Brainard, 85 id. 476. See § 194.

2 Commercial Nat'l B'k v. Prootor, 6 First Nat'l B'k v. Freeman, 47
98 111. 558. Mich. 408.

3 Pearson v. Post, 3 Dak. 330, 349. ^ George v. Tate, 103 U. S. 564.

* Planters' & Mer. B'k v. Willis, 5 s Mechanics' B'k v. Hildreth, 9
Ala. 770; Cullumv. Bloodgood, 15 id. Cush. 356.

34; Halstead, v. Shepard, 23 id. 558; 9 Pierce v. Jamagin, 57 Miss. 107.
Vol. I — 27 417

§ 403. CONDUCT OF THE BUSINESS.

and the partner assigns it by indorsing the firm's name, this proves
title in the assignee as against the maker.'

§ 402. sales with warranty. — The usual rule of

agency, that a power to sell implies a power to warrant
quality or soundness, obtains in sales by one partner.^

So of a sale of notes falsely stating the indorser and maker to
he worth a certain sum. The firm was held liable on the warranty.'
But the contrary has been held of a sale of a judgment guaraintying
its payment without proof of usage.*

In Jordan v. Miller, 75 Va. 442, a partnership was formed to buy
cattle in Tennessee, and bring them to Virginia for sale, and cattle
were purchased, but the price in Virginia was found to be very
low, and neither sales nor pasturage could be obtfwned. Under these
circumstances some of the partners made a contract to sell the cat-
tle, guarantying a certain profit at the end of the next year, and
under the circumstances this was held not to be in excess of pow-
ers.

§ 403. Power to sell the whole property. — As a partner
has the power to sell whatever is held for sale, and as it is
impossible to say at what point the power ceases, it follows
that he has the power to sell all such property in bulk or as
an entirety. But one of the reasons which forbid him to
assign all the property for the benefit of creditors without
the consent of his copartners, if they are accessible, viz. : that
this is not transacting the business of the firm, but destroy-
ing it, applies here to limit the power of selling to carrying
out the business of the firm, and furthering its objects.

On principle it would seem to make no difference whether
the property is real or personal. If it is property in the con-
tinued use of which the transaction of the firm's business
depends, he has no implied power to sell it, whether it be
the store or factory in which the trade is carried on, or the
office furniture or safe, or partnership books,' or the ploughs,

1 Mick V. Howard, 1 Ind. 350. * The case of Dore v. Wilkiason,

2 Di-umright v. Philpot, 16 Ga. 434 ; 3 Stark. 287, is not to the effect that
60 Am. Dec. 738. a partner can sell the books, but the

» Sweet V. Bradley, 24 Barb. 549. dictum is that if the purchaser from
< Hamilton u. Purvis, 2 Pa. 177. a partner had bought a new set of

418

PARTICULAR POWERS BEFORE DISSOLUTION. § 403.

horses or implements of a farming partnership, or the tools
and machinery of a mechanical occupation, or the library
and instruments of a professional one.

It is, or until a recent date was, a very common assertion,
that each partner had the power to dispose of the entire
partnership effects. In the note are collected not only the
decisions, but most of the dicta sustaining this power more
or less broadly.^

A partner has a power to mortgage the entire stock, sub-
ject to the same limitations, doubjtless, as in selling the
whole. ^

Many authorities, recognizing that this assertion is entirely too
broad, have stated it in a narrower shape, namely, that every part-
books, even as agent of the selling v. Olai'k, 1 Biss. 128, 136); Graser v.
partner, he would have a lien on Stellwagen, 35 N. Y. 315; Wetter v.
them to the extent of his outlays Schlieper, 4 E. D. Smith, 707, 717;
made in the business since his pur- Willett v. Stringer, 17 Abb. Pr. ^ 153.
chase. See High v. Lack, Phil. (N. Ca.) Eq.

1 Lambert's Case, Godbolt, 244; 175; McGregor v. Ellis, 2 Disney,
Fox V. Hanbury, Cowp. 445, 448 ; 386 ; Deckard v. Case, 5 Watts, 23,
Pearpoint v. Graham, 4 Wash. C. C. 24; 30 Am. Dpc. 387; Dickinson v.
232 ; Anderson v. Tompkins, 1 Brock. Legare, 1 Desaus. 537 ; Mygatt v.
456, 459; Halsteadu Shepard, 23 Ala. McClure, 1 Head, 495, 497; Barcroft
558, 573; Hyrschfelder v. Keyser, 59 v. Snodgrass, 1 Cold. 430. 444; Will-
id. 338 ; Mills v. Barber, 4 Day, 438, iams v. Roberts, 6 id. 493 ; Lasell v.
430; Drake i). Thyng, 37 Ark. 328; Tucker, 5 Sneed, 38, 36 ; Schneider u
Mason v. Tipton, 4 Cal. 276 ; Crites Sansom, 62 Tex. 201 ; 50 Am. 'Rep.
V. Wilkinson, 65 id. 559; Williams 531; Williams v. Sommerville, 8
V. Barnett, 10 Kan. 455 ; Lamb v. Leigh, 415, 430 ; Forkner v. Stuart, 6
Durant, 12 Mass. 54, 56 ; Montjoys Gratt. 197 ; Fox v. Rose, 10 Up. Can.
V. Holden, Litt. Sel. Cas. 447; 13 Am. Q. B. 16; Paterson v. Maughan, 39
Di-c. 331 ; Arnold v. Brown^ 24 Pick. id. 371.

89 ; 35 Am. Dec. 296 ; Tapley v. But- 2 Osborne v. Barge, 29 Fed. Rep.

terfleld, 1 Met. 515; 35 Am. Deo. 735; Wilcox u Jackson, 7 Colorado,

374; Kirby v. Ingersoll, 1 Doug. 531; McCoy v. Boley, 31 Pla. 803;

(Mich.) 477, 488 (aff. S. C. Har. Ch. 173) Bull v. Harris, 18 B. Mon. 195; Tap-

(see Sirrine v. Briggs, 31 Mich. 443, ley v. Butterfleld, 1 Met. 515; 35 Am.

444); Whitton v. Smith, 1 Freem. Dec. 374; Holt v. Simmons, 16 Mo.

(Miss.) Ch. 231; Cayton v. Hardy, 27 App. 97; Wille;f;t v. Stringer, 17 Abb.

Mo. 536; Holt V. Simmons, 16 Mo. Pr. 153; Arnold u Morris, 7 Daly,

App. 97, 114; Mabbett v. WhitCj 13 498; Paterson v. Maughan, 39 Up.

N. Y. 443 (explained in Pettee v. Can. Q. B. 371.
Orser, 6 Bosw. 133, 137 ; and Bowen

419

§ 404. CONDUCT OF THE BTTSINE3S.

ner lias tlie power to sell or transfer the entire personal property,
excluding the real estate, thus seeming to put a generally just and
proper restriction on the power of sale upon the mistaken ground
of the nature of the property and the technical rules of convey-
ancing, which require a deed signed by each partner who holds the
legal title, instead of on the ground of want of power to act out-
side of the scope of the business.'

Other authorities have sought to find the limit to the general
power of selling in the doctrine that the power is -to be exercised
in subordination to the joint benefit.' This limitation, in so far as
it applies, extends to sales of property held for sale where the gen-
eral power of disposition is undisputed, for even of such property
a conveyance to pay a private debt of the selling partner, or with
an intent to defraud the other partners known to the buyer, is not
within the power; but the limitation as above expressed would
permit the sale of any property provided it be for joint benefit, and
under it a partner could transfer property held for continued use
to pay debts or to raise money to pay debts, without the assent of
his copartners.

§ 404. The true principle, undoubtedly, is that stated
above (§401), that the scope of the business gives an im-
plied power of sale only of the property held for the pur-
pose of sale, or which appears to the buyer to be such, and
that property owned for continued use cannot be sold with-
out express authority from the copartners. ,The following
cases, as well as the doctrine against the power to assign
for benefit of creditors, explain and enforce this doctrine.

In Sloan v. Moore, 37 Pa. St. 217, the partnership was in run-
ning a newspaper, and being about to close, or having already
closed, one partner sold out the whole concern. It was ruled that

iBarcroft v. Snodgrass, 1 Cold. 558, 573; Williams v. Roberts, 6
(Temi.)430, 444; Williams v. Eoberts, Cold. 493. A sale of the whole, being
6 id. 493; McCullough v. Sommer- an unusual transaction, may excite
villa, 8 Leigh, 415, 430; Tapley v. suspicion and may be found not to
Butterfield, 1 Met. 515, 519 (35 Am. be bona fide. Stegall v. Coney, 49
Dec. 374); Goddard «;. Eeuner, 57 Miss. 761. And if sold at half price,
Ind. 533 ; Keck v. Fisher, 58 Mo. 533, notice that it is not in the course of
535 ; Weld v. Peters, 1 La. Ann. 432. business may be irriplied. Wallace

'Williams v. Barnett, 10 Kan. 455, v. Yeager, 4 Phila. 351.
458; Halstead v. Shepard, 23 Ala.

420

PARTICULAR POWERS BEFORE DISSOLUTION. § 404.

where a partnership is formed not to buy or sell, but for a business
in which continued ownership is indispensable, neither can sell,
eTen to pay creditors, and an injunction was allowed.

In Myers v. Moulton (Cal.), 12 Pac. Rep. 505, it was held that a
partner had no power to sell a stallion kept for breeding, the only
property of the firm, because it was not merchandise.

In Cayton v. Hardy, 27 Mo. 536, a partner in a farming part-
nership attempted to sell a yoke of working oxen. It was held
that this was not within the scope of the business, which did not
contemplate such sales, and that the sale was void. The court said
the same rule would apply to an attempt to sell the farm, the
brood mares and the utensils.

In Drake v. Thyng, 37 Ark. 228, one partner in the business of
making brick, in the temporary absence of his copartner, sold the
whole concern, including bricks made and partly made, implements,
lease, fire-wood, etc., the buj^er knowing it was partnership prop-
erty. It was held that if selling is in the scope of the business
one partner could sell part or all of the effects intended for sale,
but not the business itself, nor the effects, including the means
necessary to carry it on, and that the buyer would be held to a
strict accountability as a trustee for the assets of the firm that had
come to his hands, and the sale would be canceled.

So in Grossman v. Shears, 3 Ont. App. 583, it was held that one
of the partners in managing a hotel could not sell out the lease
and furniture, and that the other was not estopped by having re-
mained passive.'

Iji Blaker v. Sands,, 29 Kan. 551, in a partnership at will in the
increase and improvement of a flock of sheep, there being no sales
intended, except of culls of the flock, it was said that one partner
had no power of sale of the flock, being indispensable to the firm,
for there is no agency in one partner to destroy the firm b}'' strip-
ping it of its property, and the sale does not bind the copartner.

In Shellito v. Sampson, 61 Iowa, 40, the question was raised
whether one partner can bind the firm by an agreement to rescind
a contract, the business under which constitutes the whole busi-
ness of the firm, and a rescission of which would work a practical
dissolution.

1 See, also, Goddard v. Renner, 57 brewery could not sell the brewery
Ind, 538, holding that a partner in a lot.

431

§ 405. CONDUCT OF THE BUSINESS.

In Hunter v. Waynick, 67 Iowa, 555, it was said that one part-
ner lias no power to sell the entire property of the firm where the
other partner lived only seventy-five miles away, with a telegraph
and daily mail communication between the towns.

In Henderson v. Nicholas, 67 Cal. 152, it was held that one part-
ner could not convey the interest of hoth in a water right acquired
by them by appropriation.

§ 405. The powder to sell even property held for sale
must be exercised in the course of business; hence if the
dissent of the copartner in a firm of only two is known to
the buyer, the power is revoked;^ or if the sale or transfer
is to pay the private debt of the selling partner,^ or if there
is fraudulent collusion, the sale is void.'

Hence, a sale of the whole stock by a single partner while
abroad, to secure a creditor, is void in the absence of assent by the
copartners.'' A sale, in order to break the firm, has been held void,"
and it has been doubted whether a partner could terminate the
partnership by a sale of all its effects.'

In Arnold v. Brown, 24 Pick. 89 (35 Am. Dec. 296), the firm's
business was to buy goods and sell them at retail; one partner ab-
sconded and creditors were threatening, and the remaining partner
sold the entire stock as an entirety to one person. The court said
that while the ordinary business of the firm was to buy in large
quantities and sell in small quantities, yet this could not restrain
the general power to buy and sell; that the authority to sell will
expand or contract according to emergencies that may arise; thus,
if a favorable opportunity occurred, one partner could sell a great
part or the whole at once, and here an exigency had arisen which
rendered a sale highly expedient, and the sale was held valid.'

1 See § 325. , f ense was want of insurable inter-

2 §410. est, one partner having previously
*Hale D. Railroad, 60 N. H. 333; sold out the insured property.

Edgar v. Donnally, 3 Munf. (Va.) ' Pearpoint v. Graham, 4 Wash. C.

387; Fox v. Eose, 10 Up. Can. Q. C. 233; Osborne v. Barge, 29 Fed.

B. 16. Eep. 725. See Simne v. Briggs, 31

< Dickinson v. L'egare, 1 Desaus. Mich. 448, 444.

537. ' And see, also, as to absence af-

* Kimball v. Hamilton F. Ins. Co. fecting authority. Lamb v. Durant,
8Bosw. 495. This was an action on a 12 Mass. 54, 56 (7 Am. Dec. 31) ; Hun-
fire insurance policy, and one de- ter v. Waynick, cited in the previous

422

PARTICULAE P0WEE3 BEFORE DISSOLUTION. § 406.

§ 406. Power to pledge or mortgage. — The power to bor-
row and .the power to pay debts both imply a power to
pledge or give a mortgage upon the property of the firm
which is held for sale, or any part of it,' or to secure future
advances of merchandise,^ or work to be performed upon
the articles pledged to secure payment for the work,' and
for this purpose may assign notes and claims,^ or may sell
and deliver goods to a creditor in payment.*

A tender by one partner is tender by the firm/ and a refusal to
pay by one partner on demand of the creditor, though the firm
had previously tendered the amount, is a refusal by the firm.'

The power of one partner to make a chattel mortgage is
the- same as a power to pledge, and is involved in the power
of a partner to sell and pay debts,' and the power to incufn-
ber the entire stock is involved in the power to sell the
whole stock.'

section ; Forkner v. Stuart, 6 Gratt. MiUs v. Barber, 4 Day, 428 ; Com-
197. For the remedy of the injured meroial B'k v. Le\yis, 13 Sm. & Mar.
partners, see §§ 276, 1035-1048. 226; McClelland v. Remsen, 36 Barb.

1 Nelson v. Wheelock, 46 111. 25 ; 622; 14 Abb. Pr. 331 ; 23 How. Pr.
Fromme v. Jones, 13 Iowa, 474; Gal- 175; 3 Keyes, 464; G Abb. App. Dec.
way V. FuUerton, 17 N. J. Eq. 389; 74.

McGregor v. Ellis, 2 Disney, 286; sscott v. Shipherd, 3 Vt. 104; Bos-
CuUum V. Bloodgood, 15 Ala. 34; well u Green, 25 N. J. L. 390; Fork-
Mills V. Barber, 4 Day, 428 ; MoClel- ner v. Stuart, 6 Gratt. 197.
land V. Remsen, 3 Keyes, 454 ; 3 Abb. 6 Douglas v. Patrick, 3 T.' R. 683.
App. Dec. 74 ; 36 Barb. 622 ; 23 How. ^ Peirse v. Bowles, 1 Stark. 323.
Pr. 175; 14 Abb. Pr. 331; George v. 8 Gates v. Bennett, 33 Ark. 475;
Tate, 102 U. S. 564; Milton u Mosher, Wilcox v. Jackson, 7 Colorado, 521 ;
7 Met. 244; Roots v. Salt Co. 27 W. McCoy «. Boley, 21 Fla. 803; Fromme
Va. 483, 493 ; Tapley v. Butterfield, 1 v. Jones, 13 Iowa, 474; Nelson v.
Met. 515, 518(35 Am. Dec. 374); Holt Wheelock, 46 111. 25; StockweU v.
.•y. Simmons, 16 Mo. App. 97; Arnold Dillingham, ,50 Me. 442; Tapley v.
V. Morris, 7 Daly, 498. And see Butterfield, 1 Met. 515 ; 35 Am. Dec.
Richardson v. Lester, 83 111. 55; 374; Patch u Wheatland, 8 Allen,
Morse v. Richmond, 6 111. App. 166 102; Keck «. Fisher, 58 Mo. 533; Holt
(aflE'd, 97 111. 308), of a real estate v. Simmons, 16 Mo. App. 97 ; Willett
mortgage to secure a loan. v. Stringer, 17 Abb. Pr. 152 ; Roots v.

2Keegan v. Cox, 116 Mass. 289; Salt Co. 27 W. Va. 483, 493.
McGregor v. Ellis, 2 Disney, 286. 9 As to which, see § 403. As to

s Games u White, 15 Gray, 378. the power of a surviving part-

<Cullum V. Bloodgood, 15 Ala. 34; ner, see below, § 731. The power of

423

§ 407. CONDUCT pF THE BUSINESS.

And it was held that each partner could mortgage the
entire personal property of the firm as security for debts.'

§ 407. Execution of the mortgage. — Where both paartners
are named individually as mortgagors, giving also the firm name, a
signature in the firm name is sufficient; ' and if signed in the firm
name the acknowledgment or affidavit of one partner in his own
name is sufficient.' Contra, if signed by the individuals.'' That
the affidavit may be by such partner in the firm name was held
sufficient.* The mortgage may be executed by the partner's signing
tlie individual names of all the copartners instead of the firm
name."

As a chattel mortgage does not require a seal, the act of one part-
ner in putting on a seal is like the use of an unnecessary seal on
other instruments and does not invalidate it, and it was so held.'

The mortgage by a partner in his own name passes no title to
the property,* and as a mortgage on his separate interest it is not
a mortgage on " goods and chattels," and filing it is not notice; and
it only covers the balance due the mortgagor after paying all joint
debts.' But while a mortgage by a partner of his interest in the

all the partners to give a mortgage partner, was doubted by Snyder, J.,
to pay the debt of one partner in- in Roots v. Salt Co. 27 W. Va. 483,
volves the question of fraudulent 493.

conveyances, which -is treated in 2 McCoy v. Boley, 21 Fla. 803;
§ 565. Sloan v. Owens, Lane & Dyer Mach.

1 Reid V. Hollinshead, 4 B. & C. Co. 70 Mo. 206.
867 ; Donald v. Hewitt, 33 Ala. 534, 3 McCoy v. Boley, 21 Fla. 803. See
551 ; Tapley v. Butterfield, 1 Met. 515 Gibson v. "Warden, 14 Wall. 244.
(85 Am. Deo. 374); Clark v. Rives, < Sanders©. Pepoon, 4 Fla. 465.
33 Mo. 579, 583; Willett i;. Stringer, » Randall v. Baker, 20 N. H. 335.
17 Abb. Pr. 153. Unless the lender Contra, Sloan v. Owens, Lane &
knows the partner -will appropriate Dyer Mach. Co. 70 Mo. 206.
the avails to his own use. Ex parte o Patch v. Wheatland, 8 Allen; 103 ;
Bonbonus, 8 Ves. 540. For a similar Tapley v. Butterfield, 1 Met. 515
power in surviving partners, see (35 Am. Dec. 374). And see § 200.
§731. And see Ppwer after Dissolu- ' Sweetzyr j;. Mead, 5 Mich. 107;
tion, § 686. Contra, if it practically Milton v. Mosher, 7 Met 244; Tapley
terminates the business. Osborne v. v. Butterfield, 1 Met. 515 (35 Am.
Barge, 39 Fed. Rep. 725. And see Dec. 374) ; Woodruff v. King, 47 Wis.
§ 405. Whether one partner could 261. And see § 418.
pledge the property of the firm to 8 Clark v. Houghton, 12 Gray, 38.,
secure a debt due to another firm, in 9 Tarbel v. Bradley, 7 Abb. New
which also he had a large interest as Cas. 273. And see § 183.

424

PARTtCULAR POWERS BEFORE DISSOLUTION. § 408.

firm to his separate creditor is, as against^ the claims of the firm's
creditors, both prior and subsequent, and of copartners for their
balances, a nullity, yet any surplus coming to the mortgagor after
satisfying those claims will be appropriated to the mortgagee as
against other separate creditors of the mortgagor or his assignee
in -bankruptcy or insolvency.'

As to the filing of chattel mortgages, see § 179.

§ 408. Power OTer contracts.^ — Where a firm filled or-
ders with inferior articles, a contract by one partner to take
them back and pay for them is within the scope of his
powers.' So where a sale was with warranty of soundness,
if the article prove unsound a partner can take it back and
give a note for the price in the name of the firm.*

So one partner may extend the time for filling a contract
with the firm.

Thus in Leiden v. Lawrence, 2 New Eep. 283 (Ex.), Lawrence, the
inventor of an ice machine, having an exclusive grant from the em-
peror of Brazil to use it there for ten years, contracted with the
firm of Leiden & Rautenfeld, in consideration of £3,300, of which
£1,100 was cash, to give them the exclusive right of using it in the
province of Rio de Janeiro, and contracted to make a machine for
them by the end of January following. In an action by Leiden to
recover back the cash payment, he having rescinded the agreement
because the machine was not ready on time, proof that Rautenfeld
had extended to Lawrence the time for completing it was held a
defense; the court further saying that one partner had power to
exonerate the defendant from the terms of the contract.^

But where the contract is an extraneous liability outside of the
scope of the business, one partner, it seems, has no power to alter
it; for example, to alter a note made by non-trading partners, or
to consent to an extension of time where the firm is surety."

1 See § 18(5. of its patent pavement used, it is not

2 See, also, § 376. in the scope of a partner's powers to

3 Wilson V. Elliott, 57 N. H. 316. vary the contract, as by agreeing to
And see Torrey v. Baxter, 13 Vt. 453. put down a street of such pavement

* Huguley v. Morris, 65 Ga. 666. and pay the royalty himself. Detroit

5 See, also, Holton v. McPike, 27 v. Robinson, 43 Mich. 198; but it is

Kan. 886, noticed under g 391. And difficult to reconcile this case with

where a city had agreed to pay to a Leiden v. Lawrence, supra.

firm a royalty on every square yard « See under Bills and Notes, § 341.

' 435

§ 410, CONDUCT OF THE BUSINESS.

§ 409. To insure or protect property. — A partner's right
to procure insurance on the entire property, unlike that of a
part owner, would seem to be clear on principle as well as
authority. Insurance is so general a precaution that the
want of it in one having the management of property would
be deemed an imprudence.'

A partner can give notice of abandonment for the firm," and can
consent to the cancellation of a policy of insurance and bind his
copartner thereby,' and can settle a loss; * but as to his authority to
act for the firm under the arbitra,tion clause of a policy.'

§410. Use of assets to pay separate debts. — From the
fad that a partner's power of disposition is confined to so
doing in the prosecution of the business of the firm, and for
its benefit, as well as from the fact that a partner has no
specific ownership in any chattel, and the copartners have
an equity for the application of the property to the debts,
and adjustment of mutual accounts, it follo\\'s that a part-
ner's attempt, without the assent of his copartners, to use an
asset of the firm to pay his separate creditor, is a fraud on
the firm."

A partner cannot appropriate assets of the firm without

1 Hooper v. Lusby, 4 Camp. 66; owns the mill in which the firm con-
Armitage v. Winterbottom, 1 M. & ducted its business of milling, the
G. 130; per Marshall, C. J., Graves other partner has no power to bind
V. Boston Mar. Ins. Co. 3 Cranoh, the firm for the expense of a lightning
419, 439; Pennsylvania Ins. Co. v. rod to protect the mill, for this
Murphy, 5 Minn. 36. And see Clem- power is not necessary to carry on
ent V. British Amer. Assur. Co. 141 the business in the ordinary way,
Mass. i298, of a limited partnership; and a note for it is not good against
Robinson v. Gleadow, 3 Bing. N. the other partner. Graves v. KeUen-
Cas. 156, where there was evidence bprger, 51 Ind. 66.

of authority. ^Cook v. Bloodgood, 7 Ala. 683;

2 Hunt V. Royal Exchange Assur. Fall River Un. B'k v. Sturtevant, 12
Co. 5 M. & S. 47. Cush. 372 ; Chase v. Buhl Iron Works,

3 Hillock V. Traders' Ins. Co. 54 55 Mich. 139 ; Clark v. Sparhawk, 3
Mich. 531. W. N. (Pa.) 115; Vance v. Campbell,

* Brown v. Hartford F. Ins. Co. 8 Humph. 524; Converse v. McKee.
117 Mass. 479; Brink v. New Amster- 14 Tex. 20. And see §§347-8,388,
dam Ins. Co. 5 Robt. (N. Y.) 104. 1035-1048.

6 See § 337. Where one partner

436

Px\RTICULAR POWERS BEFORE DISSOLUTION. § 410.

his copartner's assent, even to pay a debt which both owe,
individually, and not as partners.'

Where a debtor partner has not delivered assets or money
of the firm, in payment of his separate debt, but has merely
promised that he would do so, his creditor, who is also
debtor to the firm, cannot insist on a credit, on account
of such promise, when sued by the firm,^ or credited the
amount.'

If the fraudulent transferee of partnership property, who
received it from one partner with knowledge Of his want of
authority, transfers it to another person, who has notice or
gives no consideration, the latter also holds in trust for or
subject to the rights of the firm.^

In Flanagan v. Alexander, 50 Mo. 50, a partner told his private
creditor to take whisky of the firm, then in bond, pay the tax and
sell it to pay his individual debt; the pledge was held valid to the
extent that the creditor paid the tax, and void onlj- as to the bal-
ance.

In Snyder v. Lunsford, 9 W. Ya. 223, the firm owned a privilege of
purchase of real estates; one partner procured the deed to be made
to his private creditor. This was held void in toto, and not even
good for a partnership debt which formed part of the consideration.
But see the cases of a note enforced to the extent of a valid consid-
eration, in § 347.

1 Hilliker v. Francisco, 65 Mo. 598. claim the amount from both of the
See, also, Johnson v. Hersey, 73 Me. partners, as the other partner could
291. not gainsay the receipt, but would

2 See Pierce v. Pass, 1 Porter (Ala.), have a remedy against his partner,
232; Harlow v. Rosser, 28 Ga. 319; or any remedies the client would
Price u Hunt, 59 Mo. 258 ; Armistead have, such as execution. Cook v.
V. Butler, 1 Hen. & M. (Va.) 176. Bloodgood, 7 Ala. 683, 688.

8 Minor v. Gaw, 11 Sm. & Mar. 323. ' * Croughton v. Forrest, 17 Mo. 131 :

A firm of attorneys employed to col- Forney v. Adams, 74 Mo. 138 ; Vance

lect a claim, having got judgment on v. Campbell, 8 Humph. 524; Fall

it, the debtor gave up to the sheriff River Tin. Bank v. Sturtevant, 12

notes he held against one of the firm, Cush. 372, holding that knowledge of

and the judgment was receipted as the cashier of an indorsee bank is

paid. It was held that the client notice to the bank. See, also,

could have repudiated such payment §§ 544-546. For remedy, see §§ 1035-

and had the receipt vacated, or could 1048.

437

§ 411. CONDUCT OF THE BUSINESS.

§ 411. Trading out debts. — The fact that the creditor of
one partner is induced by him to trade out the debt with
the firm, or take out the debt in goods, and that the goods
were received on this .condition, and perhaps ' would not
have been otherwise purchased, will not bind the non-assent-
ing partner.^

A person can make a purchase from a firm, under a con-
temporaneous agreement to pay in some other currency than'
money, such as goods, and it will be a valid contract, pro-
vided he intends the articles for the firm, and it is within
the apparent scope of the business to receive them, and he
does not know of a design on the part of the parther with
whom he is bargaining to accept them for his own use.^

The same rule against appropriatiiig firm assets to pay private
debts applies where the chief feature of the partnership business is
the labor or services of the partners, as in a mechanical or profes-
sional partnership. Such services belong to the firm, and an agree-
ment by one partner, to pay his private debt by rendering services,
is as much a fraud on the firm as if he had appropriated joint prop-
erty.'

When the creditor of a person is not aware of the partnership,

1 Harper v. Wrigley, 48 Ga. 495; may be explained as cases of pay-
Todd V. Lorali, 75 Pa. St. 155 ; War- ment in goods.

der V. Newdigate, 11 B. Mon. 174; 'Warder ii. Newdigate, 11 B. Mori.
Cadwallader u Kroesen, 23 Md. 200 ; 174 (53 Am. Dec. 567); Lemon v.
Johnson v. Crichton, 56 id. 108, 112; Fox, 31 Kan. 153, 159; Hoodi;. Eiley,
McNair V. Piatt, 46 111. 211; Broad- 15 N. J. L. 127; Liberty Sav. Bank
dus V. Evans, 63 N. Ca. 633; Liberty v. Campbell, 75 Va. 534. The above
Savings B'k v. Campbell, 75 Va. 534 ; is probably the true reconciliation of
Ramey v.'McBride, 4 Strob. (S. Ca.) the cases cited, and yet some have
L. 12. Contra, Tyler v. Scott, 45 Vt. gone much further. Thus, in White
261; Strong v. Fish, 13 Vt. 277; u Toles, 7 Ala. 569, a contract wit 1 1
Mitchell V. Sellman, 5 Md. 376, but one partner that the firm should do
I here the partner had been authorized work for the party, to be paid for by
to arrange the mode of payment for boarding such partner, was sus-
the new purchases. Arnold^y. IBrown, tained. See, also, Greeley «, Wyeth,
34 Pick. 89 (35 Am. Dec. 296), (but 10 N. H. 15.

see Williams v. Brimhall, 13 Gray, 3 Williams v. Brimhall, 13 Gray,
463.) Kirkpatriok v. TurnbuU, Addi- 462; Ramey v. McBride, 4 Strob. (S.
son (Pa.), 259; McKeeu Stroup, Eice Ca.) L. 13.
(S. Ca.), 391, but the three last cases

438

PARTICULAE POWERS BEFORE DISSOLUTION. § 412.

and employs the services of the partner for the purpose of extin-
guishing the debt, or where a person employs a partner, not heing
aware of his partnership, and by the contract is to pay him in arti-
cles, which are for his own use alone, such payment is a good dis-
charge or set-off,' on the same principle that allows a set-off
against the ostensible partner in a dormant partnership.

§ 412. appropriation of payments. — If a person is

creditor of the firm and of one partner also, payments by
the latter with partnership funds will be credited on the
partnership debt.

Campbell v. Mathews, 6 Wend. 551, where a partner paid a judg-
ment against him with partnership property, and the creditor, with
the consent of the other partner, applied the payment upon the
partnership debt and issued execution on the judgment, notwith-
standing his receipt that the payment was applied upon the judg-
ment.

Downing v. Linville, 3 Bush, 472, where a surety of D. & W.and
of W. individually received partnership funds and was directed by
W. to apply them to his debt, and did so, but having afterwards •
paid the partnership debts with his' own money, was held to be
deemed to have paid them with the partnership funds which he had
undertaken to credit upon W.'s debt.''

And the same principle, as far as possible, will be applied
where the firm and also one partner are creditors of "the
same person.

In Eaton v. Whitcomb, 17 Vt. 641, W. was indebted to E. & S.,
and S., having authority from the firm to trade out the debt, agreed
that W. might furnish lumber to him individually in payment. W.
furnished lumber to him and also to the firm and overpaid the debt,
and it was held that his delivery, to the firm must be first credited
and the delivery to S. next, and hence the overplus after discharg-
ing the debt became a claim against S. alone.

Scott V. Trent, 1 Wash. (Va.) 77, where, in an action by part-
ners, the defendant put in set-off receipts signed by one partner, but

1 Bryant v. Clifford, 37 Vt. 664 ; 2 See, also, Cornells v. Stanhope, 14
McBalnv. Austin, 16 Wis. 87; Strong R. I. 97; Davis v. Smith, 27 Minn.
V. Fish, 13 Vt. 277. 390,

429

§ 413. CONDUCT OF THE BUSINESS.

as they did not specify the payments to be on partnership account,
they were disallowed.

Release, power to. — See Debts, §383; Under Seal, §416.

SEALED INSTRUMENTS.

§ 413. A partner has no implied power to bind the firm
by an instrument under seal. This rule is universal. It
originated in the doctrine that, if he could do so, it would
enable him to convey the real estate of the firm or create
liens upon it to the preference of favorite creditors, and thus
enlarge partnership functions beyond the limits of chattel
interests and personal estate and the course of trade. The
original statement of the rule was that a partner could not,
unless authorized, bind another by deed. The deeds spoken
of undoubtedly meant such as reach real estate, and the en-
largement of the word deed to include any specialty was a
subsequent interpretation of the older cases.

These reasons are not sufficient to justify the rule, because the
legal title of real estate, if in the name of more than one partner,
is held by them as tenants in common, and a tenant in common
can convey only his own share; and so of creating liens if by
mortgage; and if by confession of judgment, it is only necessary to
say that, at common law, no seal was necessary to a warrant for
such purpose, and the want of a power to execute such an instru-
ment must therefore rest on other grounds; though the doctrine is
often resorted to in such cases as the foundation of the court's
opinion, in place of searching for the truer and worthier reason
that the act is intrinsically beyond the scope of the partnership re-
lation, whether sealed or unsealed. And if the limitation on the
fiower to do these acts is not based on a better reason, the curious
result will follow that the abolition in foiirteen of our states of all
difference between sealed and unsealed instruments has unavoidably
enlarged the implied powers of partners already quite large enough.
A more substantial reason, though seldom referred to, is that the
seal imports a consideration, and to that extent forestalls inquiry.
But in proportion as the policy of the courts reduces the import

4S0

PARTICULAR POWERS BEFORE DISSOLUTION. § 4t-t.

of a seal to a mere prima facie presumption of consideration this
reason fails.'

§ 414:. With the introduction of scrawl seals, the doctrine de-
nying the power to seal becomes still more technical and fallacious;
and where the reasons for the rule have ceased to exist, its reten-
tion is a m^re survival, productive of no advantage; and a very
cursory examination of the . cases will convince that to attribute
such magic to a scrawl has more frequently defeated than promoted
the just intent of the parties, has led to frequent injustice, and has
been a snare and a trap, because the misstep is 'rarely discovered
until the instrument is placed in professional hands for coercive
proceedings.

Although the rule has been relaxed so as to let in releases and
to permit authorization by parol, yet the rule itself everywhere
remains, excepting only as influenced by the entire abolition of
seals in certain states."

All the cases cited in this chapter recognize and enunciate the
doctrine that a partner has no implied power to bind the iirm un-
der seal.'

The fact that the articles are under seal gives a partner no
power to bind the firm under seal.* The question is not as

1 Where the statute raises notes to 111. 3 El. 428, 442-4 ; Henry County
the dignity of sealed Instruments it v. Gates, 26 Mo. 315, 317 ; Montgom-
does not limit the power of a partner ery v. Boone, 2 B. Mon. 344; Straffin
to make a note. Southard v. Steele, v. Newell, T. U. P. Charlton (Ga.),
3 Mon. 438 ; Montgomery v. Boone, 3 163 (4 Am. Dec. 703).

B. Mon. 244. 3 In addition are the following

2 Opinions giving reasons for sus- cases which have not been cited
taining the rule will be found in more particularly: Dodge v. McKay,
Green v. Beals, 2 Caines, 254, 255; 4 Ala. 346 ; Posey u Bullitt, 1 Blackf.
McBride v. Hagan, 1 Wend. 326, 334; 99; Albers v. Wilkinson, 6 Gill & J.

, Fisher v. Tucker, 1 McCord (S. Ga.), 358; People v. Judges of Duchess, 5
Ch. 169; McDonald v. Eggleston, 26 Cow. 34; Anonymous, 2 Hayw. (N.
Yt. 154, 160 (60 Am. Deo. 303); Dob Ca.) 99; Anonymous, Tayl. (N. Ca.)
ex dem. Smith v. Tupper, 4 Sm. & 113; McKee w. Bank of Mt. Pleasant,
Mar. 261 (43 Am. Dec. 483); 7 Oh. 3d pt. 175 ; Gerard v. Basse,!
McKnight v. Wilkins, 1 Mo. 308, 309. Dall. 119; Trimble v. Coons, 3 A. K.
Opinions criticising the rtile will be Mar. 375 ; McCart v. Lewis, 3 B.
found in Gram v. Seton, 1 Hall, 262 ; Mon. 367 ; Nunnely v. Doherty, 1
Drumright v. Philpot, 16 Ga. 424 (60 Yerg. (Tenn.) 36, 30.
Am. Dec. 738) ; Gwinn v. Rooker, 34 < Harrison v. Jackson, 7 T. E. 207.
Mo. 390, 393; Sloo v. State Bank of

431

§ 41(5. CONDUCT OF THE BUSINESS.

to the 'form in which the power is created, but whether it exists
at all.

§ 415. Release under seal. — A well settled limitation on
the denial of the right to execute a sealed instrument was
early established and ever since maintained, namely, a part-
ner may execute a release under seal.' The ground of this
is that the release creates no obligation, and imposes no
fresh burthen, for it only bars a right of action, and results
merely from the right to collect debts.

§ 416. Parol authority or assent. — If the jspecialty is ex-
ecuted by one partner in the presence of the rest, signing
their names by their^ direction, it is their act, and all are
bound.'' But in England, and in a few American cases, it
is held that the authority to bind a partner not present by
seal must be conferred by a sealed instrument, and that an
authority or ratification by parol was not sufficient.' But
there has- been a steady and progressive relaxation of this

1 Hockless V. Mitchell, 4 Esp. 86 ; partner could release a debtor under
Hawkshaw v. Parkins, 3 Swanst. seal he could delegate this power by
539 ; Halsey v. Whitney, 4 Mason, executing a power of attorney under
206, 231 ; United States v. Astley, 3 seal to discharge the debt.
Wash. C. C. 508; McLane u Sharpe, 2^all v. Dunsterville, 4 T. R. 313;
3 Harr. (Del.) 481 ; Morse v. Bellows, Burn v. Burn, 3 Ves. 578.
7 N. H. 549 ("28 Am. Dec. 372) ; Smith ' 3 Steiglitz v. Egginlon, Holt, N. P.
V. Stone, 4 Gill & J. 310 ; Allen v. 141 ; Harrison v. Jackson, 7 T. R. 207 ;
Cheever, 61 N. H. 33; Pierson v. Cummins v. Cassily, 5 B. Mon. 74;
Hooker, 3 Johns. 68 (3 Am. Dec. Doe v. Tupper, 13 Miss. 261 ; Bentzen
467); Bruen v. Marquand, 17 Johns, v. Zierlein, 4 Mo. 417; Turbeville v.
58 ; Wells u Evans, 20 Wend. 251 (re- Ryan, 1 Humph. 113, 129 (34 Am. Dec.
versed in part in Evans v. Wells, 22 632); Little v. HaJszard, 5 Harr. (Del.)
Wend. 324); Beach v. Ollendorf, 1 291; Sellers v. Streater, 5 Jones,
Hilt. 41 ; Perlberg i;. Gorham, 10 Cal. L. 261; Fisher v. Pender, 7 id.
120; Gates v. Pollook, 5 Jones (N. 483; Tappan v. Redfleld, 1 Halst.
Ca.),L. 344;anddicfoinFoxu Nor- (N. J.) Ch. 339; Trimble v. Coons,
ton, 9 Mich. 207, 208; McBride v. 2 A. K. Mar. 375. And if granted
Hagan, 1 Wend. 336, 834. But see in articles of partnership, under
Waldo Bank u Lumbert, 16 Me. 416, seal, the dissolution revokes it, and
419. In Wells v. Evans, 20 Wend, a renewal of the firm, in order to
351 (reversed on other points in wind up, does not revive the power.
Evans v. Wells, 23 id. 824; Lockw. Napier v. Catron, 3 Humph. 534.
Rev. Cas. 390), it was held that as a

433

PARTICULAR POWERS BEFORE DISSOLUTION. ' § 41C.

rule, and several of the above decisions are inconsistent with
later cases in the same states; and it is now virtually a uni-
versal American doctrine, that the prior assent or subsequent
ratification may be by parol, and may be implied from
declarations or from circumstances, as being present at the
execution without objection, or knowingly acting under and
receiving the benefits of the transaction.^

The ratification may be after dissolution, and no more express
acts are necessary than before.' The assent or ratification need not
be simultaneous by all, but may be by one at one time, and another
at another.'

1 Gibson ■«. Warden, 14 Wall. 244; Gwinn w. Rooker, 24 Mo. 290 ; Mackay
Anthony v. Butler, 13 Pet. 423 ; v. Bloodgood, 9 Johns. 285 ; Skinner
United States?;. Astley, 3 Wash. C. v. Dayton, 19 id. 513; Gates v. Gra-
C. 508; Darst u Roth, 4 Wash. C. C. ham, 12 Wend. 53; Gram v. Seton,
471; Hawkins v. Hastings Bank, 1 1 Hall, 263; Pettis v. Bloomer, 21
Dill. 462 ; 4 Bankr. Reg. 108 ; Be Law- How. Pr. 317 ; Smith v. Kerr, 3 N. Y.
renoe, 5 Fed. Rep. 349; Henderson 144; Person v. Carter, 3 Murph. (N.
V. Barbee, 2 Biatohf. 26 ; Herbert v. Ca.) 321 ; Fichthorn v. Boyer, 5
Hanrioh, 16 Ala. 581 ; Grady v. Rob- Watts, 159 ; Purviance v. Snther-
inson, 28 Ala. 389; Gunter v. land, 3 Oh. St. 478 ; Bond w. Aitkin,
Williams, 40 Ala. 561 ; Lee v. Onstott, 6 Watts & S. 165 (40 Am. Dec. 550) ;
1 Ark. 306; Hobson v. Porter, 2 Col- Taylor v. Coryell, 13 8. & R. 348, 349;
orado, 38; Jeffreys v. Coleman, 20 Johns v. Battin, 30 Pa. St. 84;
Fla. 536 ; Drumright v. Philpot, 16 Schmertz v. Shreeve, 62 Pa. St. 457
Ga. 424 (60 Am. Deo. 738); Sutlive w. (1 Am. Rep. 439); Fleming v. Dun-
Jones, 61 id. 676; Peine v. Weber, bar,' 2 Hill (S. Ca.), L. 532; i.ucas v.
47 111. 41; Wiloox v. Dodge, 13 111. Sanders, 1 McMuU. 311; Fantu. West,
App. 517; Modisett v. Lindley, 2 10 Rich. L. 149 ; Stroraan u Yarn, 19
Blackf. 119; Price u Alexander, 3 G. S. Ca. 307; Lambden v. Sharp, 9
Greene (Iowa), 427 (53 Am. Dec. 526) ; Humph. 234 (34 Am. Dec. 642) ; Low-
Haynes v. Seachrest, 13 Iowa, 455 ; ery v. Drew, 18 Tex. 786, 793 ; Bald-
Craig w Alverson, 6 J. J. Mar. (Ky.) win v. Richardson, 33 Tex. 16;
609: I)aniel v. Toney, 3 Met. (Ky.) McDonald v. Eggleston, 36 Vt. 154,
533; McCart v. Lewis, 3B. Mon. 367; 161 (60 Am. Dec. 303); Black v.
Pike V. Bacon, 21 Me. 380 (38 Am. Campbell, 6 W. Va. 51 ; Wilson v.
Dec. 259); Herzog v. Sawyer, 61 Md. Hunter, 14 Wis. 683; Moor v. Boyd,
344; Cady V. Shepherd, 11 Pick. 400 15 Up. Can. C. P. 513; Bloomley w.
(33 Am. Dec. 379) ;.Swan v. Stedman, Grinton, 9 Up. Can. Q. B. 455 ; Howell
4 Met. 548 ; Russell v. Annable, 109 v. McFarland, 2 Ont. App. 31.
Mass. 73 ; Holbrook v. Chamberlin, 2 Swan v. Stedman, 4 ,Met. 548 ;
116 id. 155; Sweetzer v. Mead, 5 Gwinn v Rooker, 34 Mo. 390.
Mich. 107; Fox v. Norton, 9 id. 307; 3 Sweetzer v. Mead, 5 Mich. 107,
Shirley' v. Fearne, 33 Miss. 653; 110.
Vol. 1 — 28 433

§ 417. CONDUCT OF THE BUSINESS.

§ 417. Assent as to coiireyances of real estate. — The title
and the conveyance of real estate constitute an independent
branch of law. The title must stand in the name of an
actual, whether real or fictitious, and not a conventional
person, as a partnership is, and therefore cannot be held in
the firm name. The partners who hold the title hold it as
tenants in common in law, and partnership rights affect
only the beneficial interest recognizable in equity.

So, too, conveyances of real estate are governed by the
law of conveyancing and not by the principles of partner-
ship law. This is treated of in the chapter on real estate,
and is mentioned here lest the foregoing doctrine be pushed
too far, for it must not be thought that a parol ratification
of or authority for an act done in the firm name can be a
substitute for a deed of real estate.^

1 § 392. Nevertheless, in Robinsou executed in its name by one partner,
V, Crowder, 4 McCord (S. Ca.), L. whet'e all went into possession, was ■
519, 536-7 (17 Am. Dec. 763), it was thereby ratified. And real estate
said that if the business of the firm mortgages executed in the firm name
was dealing in lands as a commod- by one partner were held validated
ity, one partner might bind the firm by parol assent or ratification in Gun-
by a transfer; but the question was ter y. Williams, 40 Ala. 561; and
ratlier of scope of authority than of see Stroman v. Varn, 19 S. Ca. 307;
form. And in Haynes ?J. Seachrest, Anthony v. Butler, 13 Pet. 433;
13 Iowa, 455, and Herberts. Hanrick, Holdeman v. Knight, Dallam (Tex.),
16 Ala.' 581, parol ratification was 556. But these cases do not impugn
held to make a deed good against the general rule that conveyances of
the partners ; and in Grady v. Rob- real estate, in the absence of statu-
inson, 38 Ala. 289, that a sealed tory provision, must be in the name
contract to sell lands could be rati- of all of the partners, whether signed
fled or authorized by parol ; and in by each for himself or by procura-
Baldwin ?;. Richardson, 33 Tex. 16, tion and hot in the firm name, except
that the parol assent created an that in some states leases for short
equity enforcible against the part- terms, given in a firm name, have
ners. In Dillon v. Brown, 11 Gray, been recognized by the courts. A
179, it was held that one pairtner real estate conveyance purporting to
could not give a lease, but that all be of the property of two partners,
must sign; but in Peine v. Weber, but executed by one only, was held
47 111. 41, and Smith v. Kerr, 3 N. Y. validated by the acknowledgment of
144, the contrary was held ; and in the other before a notary that his
Holbrook v. Cliamberlin, 116 Mass. partner was authorized, Holdeman
153, and Kyle v. Roberts, 6 Leigh v. Knight, Dallam (Tex.), 556. And
(Va.), 495, that a lease to a firm where one partner executed the con-

434

PARTICULAR POWERS BEFORE DISSOLUTION. § 418.

§ 418. Unnecessary seal as snrplnsage. — Where the act
is in the ordinary scope of the partnership business, that is,
does not require a seal, the mere addition of the seal is
held in many cases not to vitiate the contract, except in a
state, as Pennsylvania, where a different statute of limita-
tions applies to a contract under seal, in which case the nat-
ure of the contract is changed; but if not changed in its
natutethe act is stijl a partnership act.^

Au executed contract, such as a bill of sale accompanied by de-
livery, stands on a different ground, f©r the delivery consummates
the transaction and the instrument is the mere evidence of it, and
a seal added does not affect the title.^

veyance in the firm name, and the Deokard v. Case, 5 Watts, 33 (30 Am.

official acknowledgment was by him Dec. 387) ; Dubois' Appeal, 38 Pa. St.

as his free act and deed on behalf of 331; Schnjertz v. Shreeve, 63 Pa.

the firm, this was held valid on evi- St. 457 (1 Am. Rep. 439) ; Robinson

(Jence of authority by the copartners, w. Crowder, 4 McOord, 519 (17 Am.

Wilson V. Hunter, 14 Wis. 744. Oon- Dec. 763) ; Lasell v. Tucker, 5 Sneed

tra, Leramon v. Hutchins, 1 Ohio (Tenn.), 33 (a bill of sale); McDon-

Cir. Ct. 388, 391. aid v. Eggleston, 36 Vt. 154 (60 Am.

1 Hunter u Parker, 7 M. &W. 333; Dec. 303); McCullough u Sommer-

Gibson v. Warden, 14 Wall. 344 ; An- ville, 8 Leigh, 415 ; Woodruff v.

derson v. Tompkins, 1 Brock. 456; King, 47 Wis. 361 (a chattel mort-

Hawkins V. Hastings Bank, 1 Dillon, gage); Bloomley v. Grinton, 9 Up.

463; 4 Bankr. Reg. 108; Drumright Can. Q. B. 455. See, also, article in

V. Philpot, 16 Ga. 434 (60 Am. Dec. 9 Am. Law Reg. N. S. 264, May,

738); Walsh v. Lennon, 98 111. 37 (38 1870. That the seal will be regarded

Am. Rep. 75) ; Price v. Alexander, 3 as added by mistake where it is un-

G. Greene (Iowa), 437 (53 Am, Dec. necessary and was intended to bind

536); Van Deusen v. Blum, 18 Pick, the firm, Wharton v. Woodburn, 4

339 (39 Am. Deo. 583) ; Tapley «. But- Dev. & Bat. L. 507; Purviance v.

terfield, 1 Met. 515 (35 Am. Dec. 874, Sutherland, 3 Oh. St. 478. In Dillon

achattelmortgage);Miltonu. Mosher, v. Brown, 11 Gray, 179, a sealed lease

7 id. 344 (a chattel mortgage) ; Sweet- by one partner in the name of the

zer V. Mead, 5 Mich. 107 (a chattel firm for a short term, for which no

mortgage); Moore v. Stevens, 60 seal is required, was held not to pass

Miss, 809, 815 ; Henry County v. the estate of the other partners ; but

Gates, 36 Mo. 315, 317; Human v. this was because of the law govern-

Guniflfe, 33 Mo. 316 ; Despatch Line ing real estate, as to which the part-

V. Bellamy Man. Co. 13 N. H. 305, ners are tenants in common, and

335 (a corporation) ; Purviance v. therefore all must have signed or as-

Sutherland, 3 Oh. St. 478; Patten v. sented even had there been no seal.

Kavanagh, 11 Daly, 348; Everit v. ^Schmertz v. Shreeve, 63 Pa. St.

Strong, 5 Hill, 168 (aff'd, 7 id. 585); 457, 460 (1 Am. Rep. 439); Deckard

485

§ 420. • CONDUCT OF THE BUSINESS.

So in states where all distinctions between sealed and unsealed
instruments are abolished, a contract by one partner under seal is
valid.'

§ 41 9. A single seal for all. — Where an authorized sealed
instrument is made in the firm name there is rarely more
than one seal affixed. But it is of importance in aver-
ring upon such an instrument to note the exact meaning
of this seal. A firm has no common seal; and while the
single seal is perfectly valid, it is so, not as the seal of the
firm, hut of each member, the partners having adopted the
same seal. Hence it must not be averred that the firm
sealed with their seal, for the firm has pone; but that the
partners in the firm name sealed.^

§ 4-20. Merger. — It has been said by very high authority
that a sealed note executed in the firm name by one partner
extinguished the original debt as to all, by merging it in the
higher security.'

V. Case, 5 Watts, 33 (30 Am. Dec. 2 That a single seal is sufficient is

387); Dubois' Appeal, 38 Pa. St. 331 ; expressly ruled in the following

'Everit v. Strong, 5 Hill, 163; 7 id. cases: Ball v. Dunsterville, 4 T. R.

583; Forknerw. Stuart, 6 Gratt. 197; 313; Henderson v. Barbee, 6 Blatch.

McClelland v. Remsen, 3 Keyes, 454; 26; Leew. Onstott, 1 Ark. 206; Day v.

3 Abb. App. Dec. 74 ; 36 Barb. 23 ; LafEerty, 4 id. 450 ; Massey v. Pike, $0

23 How. Pr. 175; 14 Abb. Pr. 331; id. 92; Witter v. McNeil, 4 111. 433,

Anderson v. Tompkins, 1 Brock. 456 ; 436-7 ; Modisett v. Lindley, 2 Blaokf.

Hennessy v. Western Bank, 6 Watts 119 ; Price v. Alexander, 2 G. Greene

& S. 300 (40 Am. Dec. 560) ; Moore v. (Iowa), 427 ; 52 Am. Dec. 526 ;■ Pike v.

Stevens, 60 Miss. 809, 815 ; Petition Bacon, 31 Me. 380 ; 38 Am. Dec. 259

of Daniels, 14 R. I. 500. In McDon- McKnight v. Wilkins, 1 Mo. 220

aid V. Eggleston, 36 Vt. 154, 159-60 (60 Mackay v. Bloodgood, 9 Johns. 335

Am. Dec. 303), it is intimated, but I Pettis v. Bloomer, 21 How. Pr. 317

believe erroneously, that disregard- Button u Hampson, Wright (O.), 93

ing an unnecessary seal is confined Lambden v. Sharp, 9 Humph. 384

to transactions that transfer an in- 84 Am. Dec. 643 ; Moor v. Boyd, 15

terest, and does not apply to one Up. Can. C. P. 513 (but the ruling

creating an obligation. _ was doubted, in Moor t). Boyd, 33 Up.

1 Pearson v. Post, 2 Dakota, 320, Can. Q. B. 459). And see cases gen-
348. Seals have been abolished in erally under § 416.

Arkansas, California, Dakota, ' Morris v. Jones, 4 Harr. (Del.)

Indiana, Iowa, Kansas, Kentucky, 428 ; Williams t. Hodgson, 2 Har. <%

Mississippi, Montana, Nebraska, J. (Md.) 474; Davidson v. Kelly, 1

Ohio, Oregon, Tennessee, Texas. Md. 493; Settle v. Davidson, 7 Mo.

486

PARTICULAR POWERS BEFORE DISSOLUTION. § 4^0.

But the point was not.necessary to be decided in any one of these
eases. It might be more reasonable to urge that the instrument
being made' and taken as binding all, and failing in its design,
binds no one, not even the signer, who would be held only on an
implied warranty that he was authorized. It does, however, bind
the signer, as is shown by the authorities cited in the next section.

But by the overwhelming weight of authoiity and reason
such unauthorized sealed instrument in the firm name does
not merge the debt as against the other partners, for the
creditor did not intend to release, but to bind them. ^

If, however, the sealed obligation of one partner is in his

604; Gwinn v. Rooker, 24 id. 391; 12 N. H. 205,235. And in Walsh v.

Clement ■u. Brush, 3 Johns. Gas. 180; Le^non, 98 111. 27; Daniel v. Toney,

SkinHer v. Dayton, 19 Johns. 513, 3 Met. (Ky.) 523; Van Deusen v.

531 ; Spear v. Gillet, 1' Dev. (N. Ca.) Bium, 18 Pick. 339; 29 Am. Dec. 582;

Eq. 466 ; Bond v. Aitkin, 6 W. & S. and Despatch Line v. Bellamy Man.

165; Harris v. Miller, Meigs (Tenn.), Co. 13 N. H. 205, 335, it was held not

158; 33 Am. Dec. 138; Nunuely u even to be a merger as to the signing

Doherty, 1 Yerg. 36 ; Waugh v. Car- partner, and that all the partners

rjger, id. 31. That it is presumed could be sued on the original consid-

to be intended to merge the debt, eration as on an implied contract.

McNaughten v. Partridge, 11 Oh. In Doniphan v. Gill, 1 B. Men. 199,

333, 283 ; 38 Am. Dec. 731. it was held that a plea of non est

J Walsh V. Lennon, 98 111. 37 ; factum to an action on the. sealed

Daniel v. Toney, 2 Met. (Ky.) 523; note was an estoppel to claim a

Doniphan v. Gill, 1 B. Mon. 199 ; Van merger in an action on the original

Deusen v. Blum, 18 Pick. 239 ; 29 Am. debt. In Van Deusen v. Blum, 18

Dec. 583 ; Despatch Line v. Bellamy, Pick. 339, 331 (29 Am. Deo. 583),

13 N. H. 205, 285; Walden v. Sher- where the unauthorized seal was

burne, 15 Johns. 409 ; Blanchard v. upon a contract to build a dam for

Pasteur, 3Hayw. (N. Ca.) 393; Spear the firm, for a purpose within the

V. Gillet, 1 Dev. Eq. 466, if the con- scope of the business, it was said that

tract is joint and several, but not the firm, having received a benefit,

otherwise ; Horton v. Child, 4 Dev. L. was liable on an implied promise to

460 ; Purviance v. Sutherland, 3 Oh. pay ; that the express contract does

St. 478; Hoskissonv. Eliot, 63 Pa. St. not exclude the implied one that the

393; Fleming v. Lawthorn, Dudley plaintiff is not bound to rely on his

(S. Ca.), L. 860; Pierce ■;;. Cameron, 7 remedy against the executory part-

'Rich. L. 114; Pelzer v. Campbell, 15 -ner alone; that as there was no con-

S. Ca. 583 ; Sale v. Dishman, 3 Leigh tract binding on the firm in exist-

(Va. ), 548. And see Froneberger v. ence, the services were not rendered

Henry, 6 Jones, L. (N. Ca.), 348, and in performance of the contract.
Despatch Line v. Bellamy Man. Co.

437

§ 421. CONDUCT' OF THE BUSINESS.

own name, it extinguishes the simple contract debt of the
firm in the higher security and makes it his separate debt.^

But if tlie debt be a judgment, the bond is lio higher security,
and therefore may or may not be a satisfaction, for it may be merely
collateral, and evidence is necessary to show which.'

A sealed note, made by the ostensible partner in his own name,
the firm having no other name, does not merge the original cause
of action against the secret partner, for if it did, the latter could
always escape liability.'

§421. The executing partner is bound. — The partner
who has executed an instrument in the firm name under
seal without authority, although the firm is not bound by
it, is himself bound.* «

The instrument must be averred to be the bond pf the individual
partner, and it is improper to declare on it as the joint covenant
of all,* for it is not that; and so if executed in the name of such

1 United States v. Astley, 3 Wash. 344; Fletchers. Vanzant, 1 Mo. 196;
C. C. 508; Settle v. Davidson, 7 Mo. Bentzen v. Zierlein, 4 id. 417; Settle
604; Reedu Grirty, 6Bosw. 567; Bax- v. Davidson, 7 id. 604; Weeks v.
ter V. Bell, 19 Hun, 367 (reversed, 86 Mascoma Rake Co. 58 N. H. 101 ;
N. Y. 195) ; Bennett v. Cadwell, 70 Green v. Beals, 2 Caines, 254 ; Clem-
Pa. St. 253, 260 ; Jacobs V. McBee, 3 ent v. Brush, 3 Johns. Cas. 180;
McMuU. 348. See §§ 535-539. Niday . Skinner v. Dayton, 19 Johns. 518;
V. Harvey, 9 Gratt. 454 ; In re Inter- MoBride v. Hagan, 1 Wend. 326 ;
national Contract Co. L. R. 6 Ch. Gates v. Graham, 13 id. 53; James
App. 525. But see Dickinson v. Le- v. Bostwick, Wright (6.), 143; Mc-
gare, 1 Desaus. (S. Ca.) 537. Naughten v. Partridge, 11 Oh. 323

■-i Bennett •«. Cadwell, 70 Pa. St. 253. Pierce v. Cameron, 7 Rich. L. 114

3 Chamberlain v. Madden, 7 Rich, Pelzer v. Campbell, 15 S. Ca. 581
L. 895. And see Robinson u. Wilkin- Sloe u Powell, Dallam (Tex.), 467
son, 3 Price, 538. The contrary was Regina v. McNaney, 5 Up. Can. P. O.
said to be the rule, however, in Da- 438. And see the cases cited under
vidson V. Kellyi 1 Md. 493 ; Ander- § 379. Contra, because not made as
son V. Levan, 1 W. & S. 334, and his own act and deed. Sellers v.
Ward V. Motter, 3 Rob. (Va.) 536. Streater, 5 Jones, L. 261 ; Fisher v.

4 Elliot V. Davis, 3 B. & P. 338; Pender, 7 id. 483; Harti;. Withers, 1
Lay ton v. Hastings, 3 Harr. (Del.) Pa. 385 ; Lucas v. Sanders, 1 McMulL
147; Morris D. Jones, 4 id. 438; Will- 311.

iams V. Hodgson, 3 Har. & J. (Md.) SHerzog v. Sawyer, 61 Md. 344;
474; Armstrong v. Robinson, 5 Gill Lucas v. Sanders, 1 MoMuU. (S. Ca.)
& J. 412; Herzog v. Sawyer, 61 Md. 311; Henry County v. Gates, 26 Mo.

438

PARTICULAR POWERS BEFORE DISSOLUTION. § 423.

partner alone and purporting to bind him only, though expressed
to be for the firm, and is approved by the other partner, it can
only be declared on as the act of both.^

§ 422. Remedy in equity. — In states where the sealed instru-
ment merged the debt against the partner executing it, but not
that of the copartners, it followed that they could not be sued in
assumpsit against objection because of the non-joinder of .the exe-
cuting partner, and he could not be joined because only liable in
covenant, so that in effect the debt against all would be merged.
To avoid this it has been held that equity will give the creditor
a remedy against the other partners; ' or equity will enforce the
debt on the ground of mistake.^ And in such case the sealed in-
strument becomes evidence that the transaction is a partnership
matter, and of the amount of the debt as an admission.*

In Horton v. Child, 4 Dev. (N. Ca.) L. 460, a bond in the firm
name was given for a purchase of goods, but on learning that it
did not bind the firm, the executing partner, with the obligee's
consent, erased the seal and redelivered it, and it was held valid
against the firm as a note.

If the sealed note was in fraud of the other partner a judgment
taken on it against both partners will be relieved against in equity."

§ 423. Riglits of a surety on the instrument.— Where the
unauthorized sealed instrument is signed also by a third person as
surety, it is held in some cases that the surety's knowledge of the
seal prevents his raising the question of want of authority or
claiming exoneration, because of having erroneously supposed the

31.5, 317 ; Hart v. Withers, 1 Pa. 285 viance v. Sutherland, 3 Oh. St. 478 ;

(31 Am. Dec. 382). Sale v. Dishman, 3 Leigh (Va.), 548;

1 Tuttle V. Eskridge, 3 Munf. (Va.) Weaver v. Tapscott, 9 id. 434 ; Brooke
330, of a lease from one partner in v. Washington, 8 Gratt. 248. And
his own name. see Hoskisson v. Eliot, 62 Pa. St. 393.

2 James v. Bostwick, Wright (O.), ^Purviarice v. Sutherland, 3 Oh.
143; Blanchard v. Pasteur, 3 Hay w. St. 478 ; Foster v. Rison, 17 Gratt.
(N. Ca.) 393 ; Boston, etc. Smelting 321 ; Hoskisson v. Eliot, 63 Pa. St.
Co. V. Smith, 13 R. I. 37 (43 Am. 393'; Froneberger v. Henry, 6 Jones,
Rep. 3); Niday v. Harvey, 9 Gratt. L. 548. Contra, Hart v. Withers, 1
454. Pa. 385 (31 Am. Dec. 383); United

3 Wharton v. Woodburn, 4 Dev. & States v. Astley, 3 Wash. C. C. 508.
Bat. 507; McNaughten v. Partridge, 5 Morgan v. Scott, Minor (Ala.), 81
11 Oh. 223 (38 Am. Dec. 731); Pur- (13 Am. Dec. 35).

439

§ 424. CONDUCT OF THE BUSINESS.

firm bound by the signature.' On the other hand, it is held that
if the principal, namely, the firm, is not bound the surety also is
not bound."

To sell personal property, § 401 et seq.; real property,
§ 299.
To warrant property sold, § 402.

RATIFICATION AND AUTHORITY.

§ 424. This subject has already been considered incident-
ally,' and it is only necessary here to state the general prin-
ciples.

Whatever is in the power of one partner to do, may, if'
done by an agent, be made to bind the firm by the ratifica-
tion of one partner.* So, also, an act which a majority can-
not do, cannot be ratified by the majority.

But the act relied on as a ratification must have been done on
behalf of the firm, that is, in the capacity of a partner, otherwise it
will not bind the firm ; for example, where a clerk without author-
ity made and signed a note in the firm name to one partner, who

1 Harter ■;;. Moore, 5 Blackf . 367 ; really for himself, and paid it volun-
Stewart v. Behm, 2 Watts, 356 ; Pel- tarily, he can recover from the iirm ;
zer V. Campbell, 15 S. Ca. 581. the seal was used by mistake in this

2 Russell V. Annable, 109 Mass. 72 case, and Wharton v. Woodburn, 4
(12 Am. Rep. 665); and see Garland Dev. & Bat. L. 507. That' the surety
V. Jacomb, L. R. 8 Ex. 216. See on the bond can sue the firm for
§§ 347, 351. In Purviance v. Suther- money which he lent to the execut-
land, 2 Oh. St. 478, it was ruled ing partner to take up the bond, but
that, as equity will give a remedy not if he had taken up the bond
against all the partners, a surety who himself, Walden v. Sherburne, 15
has been compelled to pay the debt Johns. 409.

was held to have a remedy in as- ^Bj an infant, §145; of deviation
sumpsit against the firm, of which from the firm name, § 203 ; of an as-
he could not be deprived by the cred- signment for creditors, §S39; of un-
itor's obtaining judgment against' authorized note?, § 363 ef seg.; of con-
the executing partner alone, and this fessions of judgment, g 378; of sealed
reason also influenced the court in instniments, § 413.
Pelzer v. Campbell, supra. And * Lyell v. Sanbourn, 2 Mich. 109, of
where one became surety on 9, bond borrowing by an agent to pay a firm
in the firm name made by one part- debt. And see Odiorne v. Maxcy,
ner, professedly for the firm, but 15 Mass. 89, 43.

440

PARTICULAR POWERS BEFORE DISSOLUTION. g 425.

indorsed it over, this act of the partner being in his own behalf
does not prove authority in the clerk.' So an agent without au-
thority to accept bills is not invested with authority by the fact of
the bills being drawn upon him by one of the partner^ in his capac-
ity as partner of another firm, for his act is as a member of the
drawer and not of the drawee firm.''

And a written ratification by one partner, the terms of which
show that he thought the unauthorized contract was to bind all or
none, does not bind him if the rest refase to ratify.''

If the partners desire to ratify and hold the other party, they
must ratify the contract as made; they cannot modify its terms or
ratify in part.*

And no new consideration moving to the firm or the other part-
ner is necessary to such assent.* Nor does the statute of frauds
apply to permission to charge to the firm supplies furnished to one
partner, for the firm is not a person apart from its members, and
such sale is in fact to the firm, though for the benefit of one part-
ner. °

The partnership books and accounts showing that the appropria-
tion of assets to pay a separate debt was. charged to the account
of the partner is evidence of the assent of the copartner.'

If an unauthorized executory contract has been ratified, and then
is not performed, the other partner can recover from both partners
the payments made by him, though the money was received by the
one alone who had made the contract.*

§ 425. Creditor partner's authority.— Where the partner
who pays his private debt out of the assets of the firm is a
creditor of the firm to a larger amount than he pays out,
and acts in good faith, and the outside debts of the firm are
all paid, the other partner suffers no injury, and the appro-
priation has been sustained in such case.'

1 Miller v. House, 67 Iowa,' 737. 6 Davis v. Dodge, 30 Mich. 367. See

2 Bank of Montreal v. Page, 98 111. § 365.

109. 'Foster «. Fifield, 29 Me. 136, 139;

3 Roberts' Appeal, 93 Pa. St. 407. Hood v. Riley, 15 N. J. L. 137.

i Frye v. Sanders, 31 Kan. 36, 30 8 Lawrence v. Taylor, 5 Hill, 107.
(30 Am. Rep. 43.1). ' Corwin v. Suydam, 34 Oh. St. 309;

SFoster V. Fifield, 39Me. 136;Wil- Sloan v. McDowell, 71 N. Ca. 356,
son u Dargan, 4 Rich. L. 544. But 859-61 (citing Piefcyv, Fynney, L. R.
see §g 565, 566. 12 Eq 69, 74, in which the plaintiff

441

§ 427. CONDUCT OF THE BUSINESS.

§ 426. Knowledge necessary. — No acts will amount to a
ratification unless the partner has knowledge of what he is
ratifying; ' and if the alleged prior authority is by way of
estoppel, as in the nature of holding the partner out as
authorized, it must have been known and relied upon by
the plaintiff.^

§ 427. Prior acts. — Prior similar acts are evidence of the
scope of the business, if doubtful, and a habit of the firm
is evidence of authority.' Thus, a habit or usage between
the members of the firm to settle their private accounts by
delivering goods of the firm, is evidence of authority.*

And such custom may be incident to the business; as a
neighborhood custom in a country store to trade out debts
may be evidence of authority in a partner to collect by re-
ceiving articles for his own use.*

Yet such custom, practiced by a sole managing partner without
the knowledge of the copartner, is no proof of the latter's assent.'

A single prior act outside of the scope is not a habit nor proof
of authorit3^'

But merely that such payment of an individual debt in goods is
necessary to retain the creditor's custom is no evidence of author-
sued only for his share). Contra, 477; Carter v. Beeman, 6 Jones (N.
Stewart v. Mcintosh, 4 Har. & J. Ca.), L. 44; Hoskisson v. Eliot, 62
(Md.) 333. Pa. St. 393; Lee v. Macdonald, 6 Up.

1 Andrews v. Planters' Bk. of Miss. Can. Q. B. (Old Ser.) 130.

7 Sm. & Mar. 192 (45 Am. Dec. 300); *Tay v. Ladd, 15 Gray, 296, 298;
Norton v. Thatcher, 8 Neb. 186; Davis v. Dodge, 30 Mich. 267; Ev-
Biggsu. Hubert, 14 S. Ca. 620; Gray ernghim i;. Ensworth, 7 Wend. 836;
V. Ward, 18 111. 32; Hotohin v. Kent, Carter v. Beeman, 6 Jones (N. Ca.),

8 Mich. 526. Ih Woodward v. Win- L. 44. And is binding on the firm
ship, 13 Pick. 430, knowledge of a after a new partner has been admit-
purchase was held a ratification ted if the private creditor was not
though there was no knowledge that aware of the change. Tay v. Ladd,
it was on credit. But see Hotohin supra.

V. Kent, 8 Mich. 526. 5 Eaton v. Whitcomb, 17 Vt. 641.

2 Wilson u Brown, 6 Ont. App. 411. 6 Thomas ii. Stetson, 63 Iowa, 537

3 Gray v. Ward, 18 111. 32; Folk v. (49 Am. Rep. 148).

Wilson, 31 Md. 538; Hamilton v. ■ Levi v. Latham, 15 Neb. B09 (48
Phoenix Ins. Co. 106 Mass. 895; Holt Am. Rep. 361), where a non-trading
V. Simmons, 16 Mo. App. 97; firm once before borrowed and gave
McGregor v. Cleveland, 5 Wend, a note.

443

PAETIOULAR POWERS BEFORE DISSOLUTION. § 42i.

ity, for tlie firm, and not tlie debtor partner, must decide on such
application of property,'

The mere fact that one partner had occasionally drawn orders on
the firm to pay his separate debts, not amounting to a uniform
practice and not known to the creditor, is no proof of assent to
the other's using the funds.^ A custom between the partners,
when one owes a debt, to charge his account with it and assume
the debt, is not broad enough to authorize his use of joint prop-
erty to pay his debt.' Nor will a custom to allow debts due by
one partnei; to be set off against claims of the firm apply only to
demands that could be legally collected against the firm, and not
to an illegal tavern bill.^ '

§ 428. Failure to dissent. — ^ After the act has beeu done,
a failure to dissent, on being informed, is not a recognition
of liability, though it may be evidence tending to show it,
if he is silent when he ought to speak; ^ and delay of a co-
partner to repudiate at an early moment the use of assets to
pay a private debt ratifies it.^

But the acquiescence must be voluntary and not enforced; thus^
if a partner obtains the exclusive use of a right which he ought to
hold for the firm, the omission of the other partners to complain
is not an assent.'

Remaining passive after the sale of a hotel business, lease and
furniture by one partner was held not to be an estoppel;' nor is

iCotzhausen v. Judd, 43 Wis. 213 Ferguson v. Shepherd, 1 Sneed, 254;
(28 Am. Rep. 539). .Bankhead v. Alloway, 6 Cold. 56, 96;

2Brewsteru Mott, 5 111. 378. Hewes v'. Parkman, 20 Pick. 90;

3 Forney v. Adams, 74 Mo. 138. Todd v. Lorah, 75 Pa. St. 155. See

1 Evernghim v. Ensworth, 7 Wend. Liviqgst'on v. Pittsb. & Steub. R. R.
326. A habit of the active partner 3 Grant's Cas. 219 ; Lowery v. Drew,
to indorse for the accommodation of 18 Tex. 786 ; Miller v. Dow, 17 Vt.
others, where the other partner, 2g5.

though he frequented the store, was 6 Casey v. Carver, 42 111. 225; Ma-
not a manager, and is not shown to rine Co. v. Carver, 42 id. 67 ; Cotz-
have known of it or of the notices Viausen v. Judd, 43 Wis. 213, 216 (28
coming to the store, is not sufficient Am. Rep. 539).

to show an assent. Andrews v. ^ Weston v. Ketcham, 39 N. Y. Su-
Planters' Bank of Miss. 7 Sm. & Mar. perior Ct. 54.
192 (45 Am. Dec. 300). s Grossman v. Shears, 3 Ont. App.

s Barnard v. Lapeer, 6 Mich. 274; 583.

443

§ 430. CONDUCT OF THE BUSINESS.

knowledge of an intended sale of the whole assets by one partner
an assent.'

§ 429. Acting under unauthorized contract. — Accepting
the benefits or acting under the disputed contract tends to
prove a ratification,^ but not if in ignorance of the source of
the benefit;' and so of acquiescence in one partner engag-
ing the firm in a new enterprise with others.^

An offer by the other partner in tryiiig to collect the amount
due the firm to allow the set-off, if the debtor will pay the balance,
is not a ratification,' but pajdng a subsequent debt so created is
evidence of assent."

§ 430. Practice. — Assent of the copartner maybe shown to
validate the appropriation, and a subsequent ratification is as effect-
ual as prior assent ; ' but an assent after an assign ment by the firm for
the benefit of creditors is too late, and will not relate back.' The bur-

1 Sloan V. Moore, 37 Pa. St. 217. 31 N. W. Rep. 533, partial payments

2 Drumright v. PMlpot, 16 Ga. to an attorney employed by the other
424 (60 Ara. Dec. 738), dividing -pro- partner in a matter not strictly in
ceeds of an unauthorized contract of the scope of business but beneficial
sale ; Michigan Air Line E'y v. Mel- to it'; Jones v. Clark, 43 Cal. 180,
len, 44 Mich. 331, dividing bonds paying interest on a note given by
taken for a debt in lieu of cash, by the iilanaging partner of a mine for
one partner ; Banner Tobacco Co. v. a purchase of property ; Livingston
Jenison, 48 Mich. 459 ; Levick's Ap- v. Pittsb. & Steub. R. E. 3 Grant's
peal (Pa.), 2 Atl. Rep. 533, dividing Cas. (Pa.) 319, permitting stock sub-
the avails of an unauthorized sale of scribed for without authority to be
the whole assets; Waller v. Keyes, voted; Porter v. Curry, 50 111. 319,
6 Vt. 257, accepting a deed for an selling a chattel bought by the co-
unauthorized land purchase ; Lynch partner without authority or for
V. Flint, 56 Vt. 46 ; Burnley v. Rice, himself.

18 Tex. 481, 494. * Tabb v. Gist, 1 Brock. 33; Mason

sBriggs V. Hubert, 14 S. Ca. 620; v. Connell, 1 Whart. 381; Wood v.

Hotchin v. Kent, 8 Mich. 526, of a Connell, 3 id. 542; Buckiugham v.

silent partner drawing share of Hanna, 30 Ind. 110.

profits partly derived from unau- 5 Hurt v. Clarke, 56 Ala. 19 (38

thorized speculations; Eaton v. Tay- Am. Rep. 751).

lor, 10 Mass. 54, partial payments on 6 Carter v. Beeman,* 6 Jones (N.

a note given after dissolution ; Clark Ca.), L. 44.

V. Hyman, 55 Iowa, 14, accepting se- ^ Noble v. Metoalf, 20 Mo. App. 360.

curity against an unauthorized guar- » Clark v. Sparhawk, 3 Weekly

anty given by one partner in the firm Notes (Pa.), 115. But see the case

name ; Holmes v. Kortlander (Mich.), cited, supra, p. 133, notes.

444

PARTICULAR POWERS BEFORE DISSOLUTION. § 430.

den of proof is on the person claiming the existence of such authority
or assent to show it, for such appropriation is prima facie fraudulent
and collusive.' That the assent must be clearly and distinctly
proved.'' If the property delivered to one partner is such as he
would need for partnership purposes, as provisions where he boarded
the shop hands, assent will be presumed.^ Where the action is on
a note signed in the firm name, an answer of one partner that it
was made by the other partner, without knowledge and consent,
for his separate debt, is sufficient without averring that the firm
did not assume it. The plaintiff must reply the assumption in
order to rely upon it.*

The fact of ratification is a question for the jury,° and whether the
act was in the scope of the business is a question for the jury.'

1 Johnston v. Crichton, 56 Md. 108; = Johnson v. Crichton, 56 Md. 108;
Kemeys v. Richards, 11 Barb. 313; Hewes v. Parkman, 20 Pick. 90;
Corwin v. Suydam, 24 Oh. St. 209. Windham Co. Bank v. Kendall, 7 R.

2 Hamilton v. Hodges, 80 La. Ann. I. 77; Jones v. Booth, 10 Vt. 268.
Part II, 1290; Haynest)! Sechrest, 13 SMaltby v. Northwestern Va. R.
Iowa, 455; Wise v. Copley, 36 Ga. R. Co. 16 Md. 423; Hodges v. Ninth
508; Gray v. Ward, 18 111. 32; Ke- Natl B'k, 54 id. 406; Briggs r. Hubert,
meys v. Richards, 11 Barb. 313. 14 S. Ca. 630; Crozier v. Kirker, 4

3 Greeley v. Wyeth, 10 N. H. 15. Tex. 253 (51 Am. Dec. 784) ; McNeish
♦Fordice v. Scribner, 108 Ind. 85. v. HuUess Oat Co. 57 Vt. 316.

445

CHAPTER VII.

POWER OF A MAJORITY.

§ 431. As to third persons. — Whatever a single partner
can do a majority can do. The power of an individual
partner to bind the firm to third persons depends on the
nature or scope of the business, as well as upon the powers
conferred, and this subject has been treated of in the pre-
ceding pages. But the converse of this is not so true, that
is, it cannot be said always that the revocation of power,
which one partner can exercise in a firm of two, would bind
the majority. This is particularly noticeable in two aspects.
In a firm of two, one partner may prevent a change of the
internal arrangpment or management, because of the prin-
ciple of in re communi potior est conditio prohibentis; and
yet a majority could overrule such objection, if it be one
not fundamental.

Again, one partner in a firm of two can, by notice to third
persons, revoke the agency of the other in minor matters,
in which a majority could overrule the objection.*

§ 432. Inter se. — The power of a majority of the part-
ners to act against the wishes of the minority must be con-
sidered in two classes:

1st. In matters of administration of the business.

2d. In matters of a permanent or fundamental character.

As to the transaction of the ordinary business of the firm,
and the carrying out of the declared objects of its forma-
tion, in the usual way, within the scope of the business, it
follows of necessity that the majority must control, and
that the minority cannot arrest the business or suspend, its
operations. If there are no stipulations or covenants as to

1 Nolan V. Lovelock, 1 Montana, Iowa, 504. See Anon. v. Layfield, 1
234, 237; Jolmston v. Dutton, 37 Ala. Salk. 393; and Carrithers v. Jarrell,
345 ; Western Stage Co. v. Walker, 3 30 Ga. 843.

446

POWEE OF A MAJORITY. § 433.

particular practices or mode of conducting ordinary trans-
actions, or regulating the internal affairs of the partnership,
the majority miist decide.'

A majority may order a division of profits, while debts are un-
provided for,' but not a dividend out of capital, no profits being
made;' or may settle and agree upon an account of the profits of a
voyage,^ but not for a return of capital.'

So, if the majority decide to sell the stock which is held for sale,
the decision being in perfectly good faith and not to oppress the
minority, they are not accountable for not getting a better price
than they did.'

§ 433. Illustrations. — In Kirk v. Hodgson, 3 Johns. Ch. 400,
the firm employed a clerk for two years, with an agreement for an
increase of his compensation as business increased. During the
third year he was found to have appropriated moneys; nevertheless
the majority continued him in the firm's employ, and he was held
entitled to the increased com^pensation. The act of the majority
binds, good faith being all that can be required, and their continu-
ing him is an admission that he has not forfeited the increase.

So, where partners in the business of conducting a newspaper
had agreed that a publisher should be selected for a term not ex-
ceeding five years, they have fixed the maximum and not the mini-
mum term, and a publisher having been selected for no fixed time,
and he neglects his duties and is engaged in other enterprises, the
action of the majority in turning him out and selecting another
^publisher must control the minority.'

In a mining partnership the majority can control the method of

1 Const i). Harris, Turn. & R. 496 ; 465 ; and see Stupart v. Arrowsmith,
Blisset'y. Daniel, 10 Hare, 493; John- 3 Sm. & G. 176.

ston V. Dutton, 27 Ala. 245; Western SGfansevoort v. Kennedy, 30 Barb.

Stage Co. V. Walker, 2 Iowa, 504 ; 379.

Nolan V. Lovelock, 1 Montana. 334, 6 staples v. Sprague, 75 Me. 458;

337; Zabriskie u. Hackensack & N. Western Stage Oo. u Walker, 3 Iowa.

Y. R. R. 18 N. J. Eq. 178, 183; Kirk 504.

V. Hodgson, 3 Johns. Ch. 400, and 'Peacock v. Cummings, 46 Pa. St.

cases cjited below. 434 ; also reported in 5 Phila. 253.

2 Stevens v. South Devon R'y Co. But the majority in certain cases
9 Hare, 313, 336. may not have power to change the

sMacdougall v. Jersey Imperial management. 0., B. &,Q. R. R, v.
Hotel Co. 2 Hem. & M. 528. Hoyt, 1 111. App. 374.

i Robinson v. Thompson, 1 Vernon,

447

§ 434, CONDUCT OF THE BUSINESS,

working and the conduct of the business, provided the exercise of
such power is within the limits of what is necessary and proper to
carry on the enterprise for the benefit of all.'

The majority, however, must exercise its powers, whether ex-
pressly conferred or existing by implication of law, in good faith
for the interest of the firm, and not for the interest of any part of
the members or from personal motives." The dissenting partner
has a right to be heard and an opportunity to urge his objection.'
Thus, an agreement between some of the partners to overrule the
rest, whatever they might wish, is not in good faith, and the court
could compel them to rescind such agreement.*

§ 434. in fundamental matters. — While the limits

of justifiable deviation are difficult to defiue, there are cer-
tain conditions in the relationship of partners of the char-
acter and authority of permanent constitutional restrictions
or fundamental limitations, and whether they belong to this
class from the nature of the partnership or by the express
provisions of the articles, they bind all as a solemn contract,
alterable only by unanimous concurrence.

Even if the articles provide that the majority shall gov-
' ern,° or that a general meeting may amend, alter or annul
the articles, it seems that this class of limitations cannot
be invaded by any number less than the whole.®

A majority cannot take up" a new kind of business or
change the nature of the business. The partnership being
formed to pursue one kind of business, the right to confine
it to that is a fundamental part of the contract rights of

1 Dougherty v. Creary, 30 Cal. 290. 2 Const v. HaTris, Turn. & Euss,
Where the majority of stockholders 496, 518, 535; Blisset v. Daniel, 10
in a mining corporation which had Hare, 493, 533, 537.
leased its land bought out the lessee ' Const v. Harris, Turn. & R. 496;
and formed a partnership, agreeing Western Stage Co. v. Walker, 3
to work together as shareholders in Iowa, 504.

electing directors favorable to them- * Const v. Harris, Turn. & E. 496,
selves, and not to sell or buy its 518.

stock except on joint account, this 5 Livingston v. Lynch, 4 Johns. Ch.
is not against public, policy, but a 573.

prudent management, no other stock- 6 Smith v. Goldsworthy, 4 Q. B.
holder being injured or complaining. 430, where it was sought to reduce
Faulds V. Yates, 57 HI. 416. the capital.

448

POWER OF A MAJORITY. § 435.

each partner;^ or engage the firm in another partnership;''
or reorganize the partnership and increase the number of
shares,' or reduce the capital;^ or agree to dissolve and re-
pay one funds he had advanced; * or make a loan outside
the scope of the business.^

If persons subscribe to form a joint .stock partnership and the
majority procured the incorporation of the company, the subscrip-
tions cannot be collected from those who did not assent.'

A stipulation against trading in spirituous liquors, if put in the
articles, is made fundamental and material, and if the majority
change it a non-assenting partner may withdraw and dissolve the.
firm."

Nor can a majority release a partner from his contingent liability
to the firm.'

Nor will a final settlement of accounts between two of three
partners bind the third."

§ 435. We have elsewhere shown that a majority cannot
convert the joint, assets into separate property by dividing
up any part of it, for the equitable lien of each partner ex-
tends to the whole property.

Th*us, two of three partners in the purchase and subdivision of
a tract of land cannot, without the consent of the third, agree that
one of them shall have a particular part of it, although the court
may protect his improvements by awarding him this part if con-
sistent with the rights of the third partner; ". nor assign a. claim
to one partner if there is a dissenting partner.^' If the, -articles

iNatusch V. Irving, 2 Cooper's 7 Southern Steam Packet Co. v.
Ch. 358; Const u. Harris, Turn. & R. Magrath, McMuU. (S. Ca.) Eq. 93.
517, the two leading cases, both by 8 Abbot v. Johnson, 33 N. H. '9.
Lord Eldon ; Zabriskie v. Hacken- 9 Bill v. Porter, 9 Conn. 33.
sack & N. Y. R. R. Co. 18 N. J. Bq. lOQhadsey v. Harrison, 11 111. 151;
178, 183. Cooper v. Frederick, 4 G. Greene,

2Tabb V. Gist, 6 Call (Va.), 379. 403; Lamalere v. Caze, 1 Wash. 0.

8 Livingston v. Lynch, 4 Johns. . C. 435. See Gansevoort V. Kennedy,
Ch. 573. 30 Barb. 379.'

^ Smith V. Golds worthy, 4 Q. B. n Cooper u. Frederick, 4 G. Greene
430. ■ (Iowa), 403. And see Gregory v.

s Gansevoort v. Kennedy, 30 Barb. Patchett, 33 Beav. 595.
279. 12 Bird v. Fake, 1 Pin. (Wis.) 290;

6 Cooke V. Allison, 30 La. Ann. Horback v. Huey, 4 Watts, 455 ; Buu
Part II, 983. 'v. Morris, 1 Caines,'54.

Vol. 1,-29 449

435. CONDUCT OF THE BUSINESS.

provide that in case of sale of the firm's mill before dissolution
the proceeds should be divided equally between the three partners,
this is made a property right, and two cannot give the proceeds to
one of them and deprive the third of his agreed share, though he
had assigned his share as security to such one;' nor agree that a
purchaser from the firm could settle his debt by crediting it on his
individual account against one partner." Nor can a general meet-
ing transfer the available property to certain shareholders in lieu
of their shares, practically putting an end to the couipany and
throvring the debts on the rest.'

So there are other rights and duties, as the duty to observe good
faith and not to compete, etc., of which no iiumber of partners
less than all can permit a violation." So no majority could bind
the members of the firm jointly and severally by contracts even in
the scope of the business, but jointly only. So no majority could
admit a new member. "

The non-consenting partner or partners may retire," or may
obtain an injunction;' but failure to object after knowledge, if
amounting to acquiescence, will supply the want of authority.'

1 Moore v. Knott, 13 Oregon, 260. porations than to the powers of part-

2 Harter v. Wrigley, 48 Ga. 495. ners. They can be found in Lindley

3 Gregory v. Patchett, 33 Beav. 595. on Partnership, pp. 604-5.

♦ See generally under Good Faith. , * Abbot v. Johnson, 33 N. H. 9.

5 In the English decisions are many - ' Natusch v. Irving, 2 Cooper's Ch.
interesting cases as to the powers of 358.

a majority in joint stock associa- 8 Natusch v. Irving, supra; Tabb v.
tions. These are analogous rather Gist, 6 C^Il (Va.), 279. And see Ab-
to the doctrine of ultra vires in cor- bot v. Johnson, 33 N. H. 9,

450

CHAPTER VIII.

CONTRACTS WITH ONE PARTNER.

§436. General rules of agency. — 1st. On contracts not
under seal and other than negotiable paper, if the principals
are disclosed it is their contract, and so if the fact of agency
is disclosed but not the name of the principal. If the fact
of agency is not disclosed and the agent acts as if he were
principal, the person dealing with him may, on discovery of
the principal, hold either at his election.

2d. If the contract is under seal, and is executed by the
agent in his own name, he alone can sue or be sued upon it,
even' if the fact that he is but an agent be disclosed.

3d. If the contract be negotiable paper, only the persons
named in it can sue or be sued on the paper, though the
paper does not necessarily merge the liability on the original
consideration.

The case of a partner contracting in his own name, though gen-
erally called a case of undisclosed principal, is not strictly such,
but is rather a case of an agent of two principals, one an individual
and the other composed of several joint principals, including the
individual principal, thus raising the question whether he acted for
his sole principal or for the body. For a partner is not agent of
the others or of each of them, but for the firm as a body, including
himself, and either represents all or himself alone.

§437. Simple contracts other than mercantile paper. —
Apart from sealed instruments and mercantile paper, simple
contracts entered into in the naxne of one pai-tner will bind
the firm, if he was in fact acting on its behalf, although the
other party was not aware of the existence of the partner-
ship. This is on the ground that such partner is an agent
acting for an undisclosed principal.

So if a partner makes an oral contract, saying nothing as
to whether it is for himself or for the firm, if it be in fact

451

§ 437. CONDUCT OF THE BUSINESS.

on behalf of the firm, or in the scope of its business, it will
be deemed to be a partnership transaction. Thus a sale to
a partner of goods for the firm is prima facie a sale to the
firm.' A sale by a partner of merchandise of the firm is a
sale by the firm.^ A contract by a partner with reference
to the business is the contract of the firm.'

An employment of one partner in the scope of the busi-
ness is deemed to be the employment of the firm.

Thus, where a person employs an attorney, it is ordinarily an
employment of the firm, so that the client may pay any partner,
and any partner may perform the services.* The employment, of
course, may specially stipulate that one partner alone is to perform
the service, and in such case if another partner attend to the case
it is a breach of contract, but the damages are only nominal, if no
injury is sustained, the value of the services not being in the name,
as in a work of art; andif the particular partner die, the client may
go elsewhere, on payment to the survivor for the services as far as
rendered.^ But the contract is partnership property, although one
partner is specially employed, and all niust sue upon it.'

In Spruhen v. Stout, 52 Wis. 517, plaintiff was in the employ of
a partnership in work upon a mill, and part of the time was di-
rected by one partner to get brick from ruins belonging to such
partner, some of which material did not go into the mill. There was
no notice to the plaintiff that this work was for the partner in-
dividually, and he was held entitled to assume that he was in the
partnership employ all the time, and can look to the firm and have
a lien upon their building for the whole amount.

So a contract made by one partner in his own name, if in fact a
partnership transaction, must be enforced in the names of all the
partners.' And any. promise to one pa;-tner inures to the benefit

1 Mills V. Barber, 4 Day, 430 ; Dou- De Tastet v. Carrol, 1 Stark. 88 ;

gal V. Cowles, 5 id. 515 ; Booe v. Clement v. British Amer. Assur. Co.

Caldwell, 12 Ind. 13 ; Walden v. 141 Mass. '298.

Sherburne, 15 Johns. 432; Augusta < Williams v. More, 63 Cal. 50;

Wine Co. v. Weippert, 14 Mo. App. Harris v. Pearce, 5 111. App. 632;

483. So of 'a loan, Sherwood u Eggleston v. Boardman, 87 Mich. 17.

Snow, 46 Iowa, 481 ; 26 Am. Rep. 155. 5 Smith v. Hill, 18 Ark. 173.

2 Lambert's Case,! Godbolt, 244; 6 Jackson u Bohrman, 59 Wis. 433.

Badger j;. Daenieke, 56 Wis. 678. 7 Gage v. Rollins, 10 Met. 348;

3 Anon. V. Layfield, 1 Salk. 391; Jackson v, Bohrman, 59 Wis. 423.

453

CONTRACTS WITH ONE PARTNER. § 438.

of all; ' hence, a law firm may sue upon the special employment of
one partner.'*

The most usual mstances of contracts by one partner upon
which the entire firm is held arise where the copartners are either
actually dormant, or the existence of the partnership is unknown
to the other party, in which case they are treated as dormant as to
him.

§ 438. Sealed instruments in the na;ne of one partner. —

It is to be noticed that we are considering th& liability on
contracts made in the name of a single partner. If the con-
tract is in the name of the firm, it purports on its face to be
intended as a partnership act, and the questio.n then raised
is as to the power of a partner. For this subject see Sealed
Instrument.

Applying the rules stated in § 436 to partnerships, if a
partner contracts in his own name under seal, he alone and
not the firm is bound.' Thus where a partner gives his in-
dividual bond or note under seal, it cannot be shown that
credit was given to the firm.^ So of a lease by one partner
in his own name,* or a purchase, and bond and mortgage
to secure the price, all in the name of one partner.*

1 White V. Williams, Willm. WoU. illegal. HopkinsSn v. Smith, 1 Bing.
>fcHod. 53. This subject will appear 13.

more fully when we come to consider 3 Hancock v. Hodgson, 4 Bing. 269 ;

who may be plaintiffs. § 1019. Hall v. Bainbridge, 1 M. & G. 43.

2 Jackson 17. Bohrman, 59 Wis. 433. ^Tomu Goodrich, 3 Johns. 313;
But where an attorney keeps an of- Willis v. Hill, 3 Dev. & Bat. (N. Ca.)
fice in a town other than that in L. 231; Moore v. Stevens, 60 Miss.
which he "practices, which is in 809; UnitedStates?;, Ab-tiey, 3 Wash.
charge of a clerk, and the attorney C. C. 508 ; North Pennsylvania Coal
is employed in that town, but the en- Co.'s Appeal, 45 Pa. St. 181; Krafts
tire service is performed by the clerk, v. Creighton. 3 Rich. (S. Ca.) L. 273;
collection of fees was defeated either and see Walden v. Sherburne, lb
on the ground of public policy, the Johns. 423 ; Butterfleld v. Hemsley,
courts desiring to keep the profes- 13 Gray, 326 ; Harris v. Miller, Meigs
sion pure, and not allow employ- (Tenn.), 158 (33 Am. Dee. 138).
ments to be attended to by clerks, 5 Tuttle v. Eskridge, 3 Munf. 330.
who should be with the attorney re- 6 Williams v. Gillies, 75 N. Y. 197
ceiving instruction, or on the ground (rev. 13 Hun, 433). Contra, if he
that there was a partnership between was authorized to make the transac-
the attorney and the clerk, which is tion, Morse 'v. Richmond, 97 111. 303

(a£f. 6 lU. App. 166).
453

g 439. CONDUCT OF THE BUSINESS.

This rule does not apply if the copartner was secret, else
the latter could always escape liability.^
§ 439. Negotiable paper made iu the name of one partner.

A firm name being the agreed symbol representing all the
partners, whether named in it or not, is the signature of all,
whether they be ostensible or dormant or nominal, (see
under Name), even though the firm name be the name of one
partner alone, as to which see hereafter. But where there
is a firm name which is other than the name of the partner,
and a creditor takes negotiable paper bearing the name of
one partner alone, the general rule is that the firm cannot
be held as parties to such paper. ^

Thus, where a note was taken in the name of one partner, evi-
dence of the maker's declarations at the time cannot be given to
show a loan to the firm, where the other partner had not consented
to notes being given in the name of one alone, and the payee knew
the firm name was not that of such partner."

1 Chamberlain v. Madden, 7 Rich. 318; Siege! v. Chidsey, 38 Pa. St. 379;
L. 395. Contra, see Davidson v. National Bank v. Thomas, 47 N. Y.
Kelly, 1 Md. 493. 15; Holmes v. Burton, 9 Vt. 353; 31

2 Sififkin V. Walker, 3 Camp. 808 ; Am. Dec. 631 ; Cunningham v. Smith-
Emly V. Lye, 15 East, 7; Lloyd v. son, 13Lelgh(Va.), 33; Goldieu. Max-
Ashby, 3 0. & P. 138; Ex parte Bo- weU, 1 Up. Can. Q. B. 434. Contra,
litho, Buck. 100 ; Bevan v. Lewis, 1 Seekel v. Fletcher, 53 Iowa, 330 ;
Sim. 376 ; Driver v. Burton, 17 Q. B. Paine v. Dwinel, 53 Me. 53 ; Tucker v.
989 ; Nicholson v. Ricketts, 3 E. & E. Peaslee, 86 N. H. 167 ; Hill v. Voor-
497; Williams r. Thomas, 6 Esp. 18; hies, 33 Pa. St. 68; Puckett v. Stokes,
Murray v. Somerville, 8 Camp. 99; 2 Baxter (Tenn.), 443; Burnley v.
Bottomley w. Nuttall, 5 0. B. (N. S.) Rice, 18 Tex. 481, 497; Sessums v.
133; Miles' Claim, L. R. 9Ch. 635; Le Henry, 38 id, 87; Foster v. Hall, 4
Roy V. Bayard, 3 Pet. 186 ; Coote v. Humph. (Tenn.) 346. Where two
Bank of U. S. 3 Cranch, 0. 0. 95 ; Be establishments in the same place
Herrick, 13 Bankr. Reg. 313; Ripley v. and same business were conducted
Kingsbury, 1 Day, 150, n. a; Strauss by the same person as proprietor of
V. Waldo, 25 Ga. 641; Macklin v. one and partner in the other, and he
Crutcher, 6 Bush, 401 ; Ostrom v. obtains money from a bank on
Jacobs, 9 Met. 454 ; Uhler v. Brown- checks signed by him as agent, the
ing, 38 N. J. L. 79 ; Graefl v. Hitch- firm may show that they do not owe
man, 5 Watts, 454 ; Farmers' Bank v. the bank. Mechanics & Traders' Bk.
Bayless, 35 Mo. 428 ; Dryer v. San- v. Dakin, 34 Wend. 411.

der, 48 id. 400; Coster v. Clarke, 3 'Ostrom v. Jacobs, 9 Met. 454;
Edw. Ch. 411; Allen v. Ooit, 6 Hill, Coote v. Bank of U. S. 3 Cranch, 0.

454

CONTRACTS WITH ONE PARTNER, , § 440.

In Crozier v. Kirker, 4 Tex. 252, 257 (51 Am. Dec. 724), it was
said thatjf the note signed by one partner appear on its face to
have a joint operation and to be on partnership account, the payee
CUQ sue the maker or all the partners at his election.

In Lemon v. Fox, 21 Kan. 152, the manager of a bank, author-
ized to sign certificates of deposit in his own name, omitted the
designation " manager " on signing one, with the intention of tak-
ing the money as a loan to himself, the depositor, however, intend-
ing it as a deposit, and not noticing the change, and all the partners
were held liable on the certificate.

If the paper given is not negotiable paper the question does not
arise. Thus, weighers' tickets addressed only to the purchasing
partners is not an agreement to look to them alone.' And so of a
receipt in the name of one partner.'^

§ 440. Lialbility of firm on original consideration when
not bound by the paper. — Where the individual paper of
one partner is taken, yefc if the sale was made to and upon
the credit of the firm, the other partners will be liable for
the original consideration as for money lent or goods sold,
although they are not liable upon the paper, which is merely
collateral.' ■

In Sorg V. Thornton, 1 Ciat. Super. Ct. Rej). 383, T., P. & Co.,
who had been in the habit of borrowing from the plaintifi', took in
a new partner, D., and the name was changed to P. & Co. T.,
who was still a partner, applied to the plaintiff for a loan for the

C. 95; Uhler v. Browning, 28 N. J. ^ Ex parte Bvown, cited in 1 Atk.

L. 79. Yet whetlier a personal cheek 225 ; Siffkin v. Walker, 2 Camp. SOS ;

for the loan was payment so as to Denton v. Rodie, 3 Camp. 493; MafEet

take away recourse on the firm or v. Leuckel, 93 Pa. St. 468; Burns u

not was held a question of intention Parish, 3 B. Mon. 8; Macklia v.

or agreement, to be left to the jury, Crutcher, 6 Bush, 401 ; Allen v. Coit,

in Smith v. Collins, 115 Mass. 388. 6 Hill, 318; Smith v. Collins, 115

As to the effect of an indorsement Mass. 388 ; Duval v. Wood, 8 Lan-

over by one partner in his own name sing, 489; Graeff v. Hitch man, 5

of a note in the name of the firm, see Wdtts, 454 ; Hoeflinger v. Wells, 47

c; 300. Wis. 628 ; Sorg v. Thornton, 1 Cint.

1 Smith V. Smyth, 43 Iowa, 493. Super. Ct. Rep. 383 ; Weaver v. Tap-

^Reevs v. Hardy, 7 Mo. 348; Her- scott, 9 Leigh (Va.), 424; Cunning-

som u Henderson, 3 Foster (23 N. ham v. Smithson,'12 Leigh, 33. And

H.), 498, 504; Brown v. Lawrence, 5 see Beebe v. Rogers, 3 G. Greene

Conn. 397. (Iowa), 319.

455

§ 441. CONDUCT OF THE BUSINESS.

new firm, the plaintiff being ignorant of the change of name, and
gave him a note in the name of the old firm. The new firm was
held liable for the loan, for T. had power to borrow, and his giving
a worthless note does not exonerate the firm from liability for
money lent.

So the note of one partner may be taken as collateral and not
as payment unless paid.

In Emly v. Lye, 15 East, 7, a leading case, Geo. Lye and E. L.
Lye, partners as Geo. Lye & Son, employed Home as their book-
keeper, and he procured the discount of bills from one Borrough,
some drawn in the firm name and some in the names of G. Lye
only and of E. L. Lye only. The proceeds of all the bills were used
for the partnership and Borrough believed the firm was held on
all. In an action against both partners on bills by E. L. Lye, the
count on the bill was abandoned and reliance was placed on the
money counts alone, which Lord EUenborough held to be proper,
unless it was desired to pursue E. L. Lye only, as the names of
others than the signer could not be supplied by intendment.

So in Siffkin v. Walker, 2 Camp. 308, Walker & Roulstone being
indebted to the plaintiff, a note for the debt was given him signed
by Walker, and both were sued upon it, but it was held that the
remedy was either against both on the debt, or against ' Walker
alone on the note as a separate security for a joint debt.

§ 441. Bills on, or to account of, the firm.— As a bill
could be accepted orally, an acceptance of a draft upon the
firm by one partner in his o-wn name binds the firm, unless
the statute requires an acceptance td be in writing.' But

1 Wells V. Masterman, 3 Esp. 731 ; Up. Can. C. P. 330, on the ground
Mason v. Eunisey, 1 Camp. 384; Jen- that a partner can only bind the
kins u Morris,. 16 M. & W. 879; Dol- firm in the firm name. In the latter
man u Orchard, 3C. & P. 104; May case, however, the payee had con-
V. Hewitt, 33 Ala. 161; Dougal v. structive notice that the acceptance
Cowles, 5 Day, 511, 515; PannelH'. was unauthorized for other reasons.
Phillips, 55 Ga. 618; Beach v. State And see Taber v. Cannon, 8 Met. 456.
Bank, 3 Ind. 488 ; Cunningham v. In Markham v. Hazen, 48 Ga. 570,
Smithson, 13 Leigh, 32 ; Tolman v. a bill was drawn upon a firm in its
Hanrahan, 44 Wis. 133. But contra, correct name, The Republican Asso-
where the acceptance is required to ciation, whose business was the pub-
be written, Be Adansonia Co. L. R. lication of a newspaper called The
9 Ch. App. 635; Heenan v. Nash, 8 Opinion. One partner accepted the
Minn. 407, and Hovey v. Cassels, 30 bill thus: " Accepted for The Opinion

456

' CONTRACTS WITH ONE PARTNER. § 441.

the accepting partner may be sued separately if his accept-
ance was unau,thori2;ed and not binding on the firm.^

Where a pa,rtner accepts in the firm name, and adds his
own name also, no individual liability is created.^

If a partner draws a bill in his own name on his firm for
its use, it is, in legal contemplation, an acceptance of the
firm, and the firm can be sued upon it.'

In Bank of Eochester v. Monteath, 1 Den. 402 (43 Am. Dec.
681), the partnership did business in Rochester in the name of
John Allen, and in Albany in the name of Wm. Monteath, and
the former drew a hill on the latter, who accepted; it was held to
be a bill on themselves on which both could be held as drawers or
indorsers as well as for money lent.'

So if a partner authorized to raise money draw on a debtor or
correspondent of the firm, directing the amount to be charged to
the firm's account, the payee' can recover of the firm on the draft.^
But the draft of a third person on one partner "on account of"
the firm, and accepted by him in his own name, was held to be his
personal acceptance only, though the firm might be "liable for its
..amount.'

If a bill is drawn upon a firm by an incorrect name, but
is accepted in the right name, the firm is bound.'

newspaper," and signed his initials. ^s. P. Wright v. Hooker, 10 N. Y.

This was held sufficient, but was put 51, approving the "above case, and

upon the ground that it sufficiently disapproving Allen v. Coit, 6 Hill,

identified the firm. 318, and Rogers v. Coit, id. 323, if

1 Owen V. Van Uster, 10 C. B. 318. they are inconsistent with it.

2 Re Barnard, 33 Ch. D. 447; Mai- SReimsdyk v. Kane, 1 Gall. 680;
colmson v. Malcolmson, 1 Irish L. R. Farmers' Bank v. Bayliss, 41 Mo.
Ch. D. 338, where he accepted for 374, 387. And' see Beebe v. Rogers,
the M. Spinning Co. and self. For 3 Iowa, 319; Morse v. Richmond, 97
cases of use by a partner of a nanae 111. 303 (afl'd, 6 111. App. 166), where
varying from the firm name, see a partner holding the title to real es-
§ 199. tate was authorized to borrow and

SDougal V. Cowl'es, 5 Day, 511; signed in his own name as "trustee."
McKinney v. Bradbury, Dallam « Cunningham v. Smithson, 13
(Tex.), 441; Beach v. State Bank, 3 Leigh, 33.

Ind. 488. And see Denton v. Rodie, 'f As where a bill was drawn upon
3 Camp. 493, where the firm was Ashby & Rowland in the name of
held liable not on the paper but as Ashby & Co., but accepted as Ashby
for a loan to it! & Rowland, the acceptance binds all

457

§ 443. CONDUCT OF THE BUSINESS.

But a bill drawn upon one partner and accepted by him
in the name of the firm will not bind the firm.V
§ 442. Renewal of firm debt hy individual note.— Where

a firm debt is renewed on the individual note of a single partner,
with the assurance that the other is to sign, and the latter com-
plained of the omission of his name, as showing a design to cheat
him out of the profits, the firm continues liable."

After the retirement of a partner known to the creditor, the effect
of an extension of the debt to the continuing partner belongs to
another subject. See §§ 532-534.

§ 443. Firm in the name of one partner. — But the name
of one partner may itself, by prior agreement, represent all
the partners, as where it is the usual firm name, or has
been permitted to be used as such for certain purposes, of
which the act in question is one. Where this is the case,
his signature to a note or contract, or any other act done by
him or in his name, may be an individual act or a partner-
ship act, and hence is necessarily equivocal. The guides for
determining whom the name represents are as follows:

1. Prima facie, that is, in the absence of all other evi-
dence, the signature of the individual is taken to be what it
purports to be, his personal act. In other words, the name
presumptively represents the person, and not the firm.'

the partners, Lloyd v. Ashby, 3 B. & 369) ; Etheridge v. Binney, 9 Pick.

Ad. 33. See Faith v. Richmond, 11 373, 374; U. S. Bank v. Binney, 5

A. &E. 389. An order on H., "gen- Mason,. 178; Gernon v. Hoyt, 90 N.

era! partner," and accepted in the Y. 631 ; Buckner v. Lee, 8 Ga. 385 ;

firm name, is an order on the firm, Strauss v. Waldo, 35 Ga. 641; Boyle

which consisted of H. and a special v. Skinner, 19 Mo. 83 ; Mercantile B'k

partner, Carney v. Hotchkiss, 48 v. Cox,. 38 Me. 500, 506; Oliphant v,

Mich. 376. Mathews, 16 Barb. 608 (cited approv-

iNiohoUs V. Diaraond, 9 Ex. 154; ingly in Yorkshire Banking Co.. «.

Mare v. Charles, 5 E. & B. 978. Beatson, 4 C. P. D. 304); Nat'l Bank

2 Horsey v. Heath, 5 Oh. 353 ; v. Ingraham, 58 Barb. 390 ; Puckett
McKee v. Hamilton, 88 6h. St. 7. v. Stokes, 3 Baxter, 443 ; and see

3 Ex parte Bolitho, Buck. -100; Williams u. Gillies, 75 N. Y. 197 (rev.
Yorkshire Banking Co. v. Beatson, 4 13 Hun, 433). Contra, that it is pre-
C. P. D. 304 ; Bank of Rochester v. sumably a partnership act, Mifflin v.
Monteath, 1 Den. 403, 405 (43 Am. Smith, 17 S. & R. 165 (which was
Dae. 681) ; Manufacturers', etc. Bank doubted in Burroughs' Appeal. 36
V. Winship, 5 Pick. 11 (16 Am. Dec. Pa. St. 364, but said in Jones v.

458 .

CONTRACTS WITH ONE PARTNER. § 443.

In Fosdick v. Vaa Horn, 40 Oh. St. 459, L.& E. were doing sev-
eral kinds of business in the same firm name, and Fosdick was a
dormant partner in one of them, and a note was given in the firm
name, and it was held that this note is presumed to be the note of
the firm not containing the dormant partner, unless it be proved
to have been on the credit or for the business of the other firm, and
this may be proved by representations made at the time of borrow-
ing, oz by other circumstances; and the dormant partner, on his side,
may show that the books of his firm contain no entry of the trans-
action.'

If the partnership is not a trading one, or a partnership where
there is implied power to give notes, the note is an individual mat-
ter, unless there was special authority to make it; and so if the
transaction was not within the scope of the business."

If there is evidence that the transaction was a partnership
matter, as where the partner declared the purchase or loan
was for the business, or for the firm, if the plaintiff knew
there was a firm, or if the plaintiff himself at the time
avowed to the partner that he was dealing with him in the
capacity of partner or was trusting the firm, this shows
the transaction to be a partnership one, and the name then
represents and binds all the partners.'

So if mercantile paper payable to one partner belongs to the
firm, whose name is also his name, the fact of the partnership be-
ing concealed, his indorsement of the notes renders his secret part-
ners liable.''

Fegely, 4 Phila. 1, 3, never to have ney, 5 Mason, 176 ■, Winship v. B'k

been overruled); Yorkshire Banking of U. S. 5 Pet. 539 533. See Theilen

Co. V. Beatson, 4 C. P. D. 304; 5 id. v. Hann, 37 Kan. 778; Macklin v.

109, presumed to be for the firm, if Crutcher, 6 Bush, 401 ; Moale v. Hol-

maker had no other business. lins, 11 Gill & J. 11; Getchell u Fos-

1 S. P. In re Munn, 8 Biss. 443. So ter, 106 Mass. 43 ; Thorn v. Smith, 21
of insurance on partnership prop- Wend. 364, 36S-7; National Bank v.
erty. I • Ingraham, 58 Barb. 290; Crocker

2 As in Marvin v. Buchanan, 63 v. Colwell, 46 N. Y. 213 ; Gernon v.
Barb. 468. Hoyt, 90 N. Y. 631 ; Gavin v.

' Stephens v. Reynolds, 5 H. & N. Walker, 14 Lea, 643,
513; 1 F. & F. 739; 2 id. 147; York- * Mohawk Nat'l ^'k v. Van Slyck,
Bhire Banking Co. v. Beatson, 4 C. P. 29 Hun, 188.
D. 204; 5 id. 109; U. S. Bankt). Bin-

459

§ Hi. COxXDUCT OF THE BUilXESS.

Of course, if there is a firm name, a partner cannot cast upon the
firm the burden of loans incurred by himself in his own name by
declaring they were for the firm.'

If the partner borrows on his own account, merely representing
that the money is to be used in the firm's business is not sufiBcient.
The lender must understand that he is dealing with the firm,
through the partner.''

That insurance upon partnership property of a partnership,
where the firm name is the name of one partner, and the insurance
is taken in his name without disclosure of the fact of partnership,
which was a limited one, will cover the entire interest, and a proof
of loss, stating that such partner is the ,sole owner, is not false
swearing, for the property belongs to the firm of that name.'

It has been also held that, if the maker has no other business, his
signature to a note will be deemed to represent the partnership."*

§ 444. These rules also apply where the partners have
not adopted the name of one as their firm name generally,
but it is so used with, their express or implied authority.*

As if the partners sometimes dealt in the name of one partner as
a firm name, this may be left to the jury as evidence that it was
the firm name in the transaction in question;" oi where no firm
name had been agreed on, each partner can use his individual name
to represent the firm;' so where the acting partner, no name hav-
ing been agreed on, introduced a name without the concurrence of
the rest.' ^

1 Uhler V. Browning, 38 N. J. L. 79 ; reconciles any seeming inconsist-
Dryer v. Sander, 48 Mo. 400. ency in the decisions as to the lia-

2 Ah Lep V. Grong Choy, 13 Oregon, bility of the firm of John Winship in
205. Manufacturers', etc. Bank v. Win-

3 Clement v. British Am. Assur.- ship, 5 Pick. 1 (16 Am. Dec. 369), and
Co. 141 Mass. 398. A note given by Winship v. Bank of U. S. 5 Pet. 539.
the ostensible partner in whose name s in re Warren. 2 Ware, 332 ; South
the firm was carried on, to his dor- Carolina Bank v. Case, 8 B. & C.

imant partner, for the amount of 427; 2 Man. &Ey. 459. See Morsel),

capital the latter had contributed, is Richmond, 97 111. 303 (a£f. 6 111. App.

the maker's individual note. Be 166).

Waite, 1 Low. 307. ^ Le Eoy v. Johnson, 2 Pet. 186,

4 Bank of Rochester v. Monteath, 1 300.

Den. 403 (43 Am. Dec. 681); York- 'Kitner v. Whitlock, 88 111. 513-;
shire Banking Co. V. Beatson, 4 C. Getchell v. Foster, 106 Mass. 43.
P. D. 304; S. C. 5 id. 109. And this « Holland "y. Long, 57 Ga. 36, 40.

460

CONTRACTS WITH ONE PARTNER. §445.

In Crocker v. Colwell, 46 N. T. 212, the firm of Colwell & Dim-
mick kept their bank account in the' name of Dimmick alone, and
hence all checks were drawn in his name; hence, where Dimmick
drew his 'check, with the amount left blank, for the purchase of
stock for the firm, and an agent of the firm filled up the amount
and procured the plaintiff to cash it, and the agent claimed to have
lost part of the amount, Dimmick's name was held to be the firm
name for the purpose of drawing checks, and the firm was held
liable on the check.

So if all the partners assent to the use of the name of one to des-
ignate the firm in certain transactions, though there be a firm
name,' or even in a single transaction,'' or where the bank account
is kept in the name of one partner alone, his check on partnership^
account binds the firm.^

§ 145. dormant and undisclosed partnerships. — If

the plaintiff did not know of the existence of a partnership,
as where the other partner was a dormant one, or though
an active partner was not disclosed to the plaintiff, or the
partner was authorized by the firm to use his own name in
a class of transactions, and the plaintiff did not know of
the existence of a firm, here the rules of agency as to the
liability of an undisclosed principal fol- acts of the agent in
his own nam6, of which the principal , gets the benefit, ap-
ply.* In other words, a person dealing with a firm is pre-
sumed to trust to all who composed it, known or unknown.

1 Palmer v. Stephens, 1 Den. 471. S44; Tucker v. Peaslee, 36 N. H. 167;

2 Seekel v. Fletcher, 53 Iowa, 830; Baxter v. Clark, 4 Ired. (N. Ca.) L.
Sprague v. Ainsworth, 40 Yt. 47. 127: Poole v. Lewis, 75 N. Ca. 417;
And see Folk v. Wilson, 21 Md. 538. Reynolds v. Cleveland, 4 Cow. 283

3 Crocker v. Colwell, 46 N. Y. 313. (15 Am. Dec. 369); Howell v. Adams,
*S. Ca. Bank v. Case, 8 B. &C. 437; 68 N. Y. 314, 330; Poillon v. Secor,

Vere v. Ashby, 10 B. & C. 288; LI. 61 id. 456; Crocker v. Colwell, 46 id.

& W. 20; Wintle v. Crowther, 1 Cr. 312; Ever'ot v. Cliapman, 6 Conn.

& J. 316 ; 9 L. J. Ex. 65 ; In re War- 347 ; Graeff v. Hitchman, 6 Watts,

ren, 2 Ware, 333; Palmer ■;;. Elliot, 1 454; Mifflin v. Smith, 17 S. & R. 165;

Clift. 63; Esc parte Ls,w, 8 1)63.0.54:1; McNair v. Rewey, 63 Wis. 167;

Bigelow V. Elliot, 1 Cliff. 38 ; Bisel v. Holmes v. Burton, 9 Vt. 353 (31 Am.

Hobbs, 6 Blackf . 479 ; Morse v. Rich- Dec. 621) ; Strauss v. Jones, 37 Tex.

mond, 97 111. 303 (aff. 6 111. App. 166) ; 313 ; Davidson v. Kelly, 1 Md. 493 ;

Richardson v. Farmer, 36 Mo. 35; Kennedy v. Bohannon, 11 B. Mon.

Smith V. Smith, 7 Foster (27 N.H.), 118; Farr v. Wheeler, 30 N. H. 569;

461

§ 446. CONDUCT OF THE BUSINESS.

This does not mean that every note by a person having a dor-
mant partner, for a purchase of goods to be put into the firm, is a
partnership liability. If the signer intended the note to be his in-
dividual liability, the payee must sue the firm on the original lia-
bility and not on the note.' And so held even when the lender or
seller believed it was for the firm, in the absence of any act of the
partner inducing such belief."

In Ontario Bank v. Hennessey, 48 N. Y. 545, one partner was au-
thorized to draw drafts to pay for purchases and did so. There
was no firm name and the lender did not know there any partners.
It was held that his name was to all intents the name of the firm
and the draft was deemed to be a firm act, and that the question
need not be submitted to the jury." Ip Poole v. Lewis, 75 N. Ca.
417, 423, where the firm of P., Y. & Co. was a member of the firm
of P., L. & Co., and bought goods to be put into the latter firm,
and the vendor charged them to the former firm, it was said that,
to show that the vendor credited the buyer also, where the fact of
a partnership was not disclosed, he must be proved to have known of
the partnership and to have elected to look to the buyer alone, be-
cause he will not be supposed to have taken less security than he
was entitled to.

In the cases where the fact of partnership was unknown to the
other party, he can sue the person who contracted with him alone.
(See Defendants, § 1052.)

§ 446. Firm not liable by getting benefit of contract of
partner. — The mere fact that the firm received the benefit
of a loan to or purchase by an individual partner does not
make it liable. The debt being his debt, his disposition of
the proceeds or consideration has no effect on the creditors'

Hersom v. Henderson, 3 Foster (33 mant. Contra, Miller v. Manioe, 6
N. H.), 498, 504. The New Hamp- Hill, 114.

shire cases seem to go a little farther i Palmer v. Elliot, 1 Cliff. '63.
than the others in holding the firm 2 Manufacturers', etc. Bank v. Win-
liable. Griffith wBuffum, 33 Vt. 181 ship, 5 Pick., 11 (16 Am. Deo. 369);
(54 Am. Dec. 64); Goddard v. Brown, Buckner v. Lee, 8 Ga. 385. But see
11 Vt. 378, that the partner cannot § 447.

object to being sued alone. Alexan- 8 One judge dissented, and the case
der V. McGinn, 3 Watts, 320, that he is questioned in Williams v. Gillies,
can object where the other partners, 75 N. Y. 197.
though not disclosed, were not dor-

463

CONTRACTS WITH ONE PARTNER. § 446.

relations to the debt or debtor, and does not enable the
creditor either to look to the firm or to shai-e pari passu
with partnership creditors in the distribution of its assets.
He can look only to the person he trusted, unless that per-
son was in fact an agent, and it is in the determination of
this fact that the difficulty lies; but assuming that the con-
tracting partner was acting for himself alone and was the
sole debtor, no subsequent enjoyment or benefit of the pro-
ceeds implicates the firm, except the partner from whom it
receives the contribution.^ Thus, where a partner borrows
money or procures merchandise for the purpose of contrib-
uting it as the share of the capital agreed to be paid in by
him.^ So if a person borrows money or purchases goods
and afterwards takes in a partner, and the firm gets the ben-
efit of the loan or purchase, this does not make the incoming
partner liable.'

Thus, where Hunter ^ Co; had ordered goods for shipment to
ajad sale in the Baltic, and afterwards agreed with Hoffman & Co.
to share the profit and loss of the adventure with them, they are
not liable to the seller.* Even though the purchase was made in
the name of the expected firm, if the incoming partner does not

' This doctrine is considerably mod- 20 New Brunswick, 367. On this

ifled in Louisiana, if the' firm has re- principle it was decided in Barton v.

ceived the benefit. Roth v. Moore, Hanson, 3 Taunt. 49, that, if several

19 La. Ann. 86 ; Penn ■;;. Kearny, 31 persons haul with their individual

id. 21; Lagan v. Cragin, 37 id. 353. horses the several stages of a coach,

2 Evans v. Winston, 74 Ala. 349; sharing the profits, they are not

Ferson v. Monroe', 1 Foster (31 N. H.), jointly liable for the feed of the

463 ; Elliot v. Stevens, 38 N. H. 311 , horses.

McLinden v. Wentworth, 51 Wis. 3 Young v. Hunter, 4 Taunt. 683;
170; Logan V. Bond, 13 Ga. 193; Mat- Atwood v. Lockhart, 4 McLean, 350;
lack V. James, 13 N. J. Eq. 126, Pol- Smith v. Hood, 4 111. App. 360: Watt
lock V. Williams, 42 Miss. 88; Burns v. Kirby, 15 111. 300; Duncan v.
V. Mason, 11 Mo. 469; Wittram v. Lewis, 1 Duv. (Ky.) 183; Ketchum u
Van Wormer , 44 111. 535 , Bank v. Durkee, Hoffm. (N. Y.) 538 ; Brooke-
Sawyer, 38 Oh. St. 339, 342 ; Valen- v. Evans, 5 Watts, 196 ; Donally v.
tine v..Hickle, 39 id. 19, 37, Donally Ryan, 41 Pa. St. 306; Bank u Gray,
V. Ryan, 41 Pa. St. 306; Fosters 13 Lea (Tenn.), 459; Taggart v.
Barnes, 81 id. 377; McNaughton's Phelps, 10 Vt. 318; Howell u Sewing
Appeal, 101 id. 550; Stebbins v. Wil- Machine Co. 12 Neb. 177, 179.
lard, 53 Vt. 665; Robertson v. Jones, * Young H, Hunter, 4 Taunt. 582.

463

8 446. CONDUCT OF THE BUSINESS.

authorize it.' But the principle was held not to apply where the
delivery of the articles so purchased was made to the firm and on
its credit/" unless made to the partner alone.' Yet if the firm gets
the benefit of the transaction, and it is but justice that it assume
the debt, such assumption has been held to convert it into a claim
against the firm.*

So where a partner borrows money on his own responsi-
bility and credit, from one who has knowledge of the exist-
ence of the firm, and uses the money for the firm or pays it
into the firm, it is his debt alone. ^

So if a person receives money not in the scope of the business,
and uses it for the benefit of the partnership, this does not charge
the other partners. In Pickels v. McPherson, 59 Miss. 216, P., be-
ing indebted to the firm of D. & M., delivered to D. a note made by
a third, person, to collect, it being outside the scope of the busi-
ness to take notes for collection; D. agreed to pay the debt due
to the firm out of the avails, and give P. the balance; but D. used
the balance in the firm's business, by paying its debts with it. The
claim for the balancfe was held to be D.'s individual debt, and for
which M. was not liable."

iGaus V. Hobbs, 18 Kan. 500. In "Wiggins v. Hammond, 1 Mo. 131;
Evans v. "Winston, 74 Ala. 349, 353, a Asbury v. Flesher, 11 Mo. 610; Farm-
mortgage was made by one partner ers' Bank v. Bayless, 35 Mo. 438 ;
in consideration of $150, loaned by Farmers' Bank v. Bayliss, 41 Mo. 274 ;
the mortgagee to the mortgagor, Tucker u Peaslee, 86 N. H. 167; Cos-
" then entering into a partnership ter v. Clarke, 3 Edw. Ch. 411 ; Ryder
with R. in the name of R. &N.," and v. Gilbert, 16 Hun, 163; National
the court said that this might mean Bank v. Thomas, 47 N. Y. 15 ; "Willis
in order to replenish the stock, v. Hill, 3 Dev. & Bat. (N. Ca.)L. 331;
which would be a partnership debt ; Peterson v. Roach, 33 Oh. St. 374
or to provide his share of the capital, (30 Am. Rep. 607) ; Bank v. Sawyer,
which would be his individual debt, 38 Oh. St. 339 ; aVi Lep v. Gong
and there was an equipoise. Choy, 13 Oregon, 305 ; GraefE v.
2 Watt V. Kirby, supra. Hitchman, S "Watts, 454 ; Foster v,
3 Id. ; Taggart v. Phelps, supra. Hall, 4 Humph. (Tenn.) 346; Union
* See S 515. & Planters' Bk. v. Day, 12 Heisk. 413 :
5 LeRoy v. Johnson, 3 Pet. 186, 199 ; McLinden v. "Wentworth, 51 Wis.
Smith V. Hoffman, 2 Cranch, C. C. 170, 181 ; Willis v. Bremner, 60 Wis.
-651; Guicet;. Thornton, 76 Ala. 466; 632; McCord v. Field, 37 Up. Can.
Mechanics' & T. Ins. Co. v. Richard- C. P. 391.

son, 33 La. Ann. 1308 (39 Am. Rep. ^Hogan v. Reynolds, .8 Ala. 59;

390); Green v. Tanner, 8 Met. 411; Dounce v. Parsons, 45 N. Y. 180.
Goodrich v. Leland, 18' Mich. 110:

464

CONTRACTS WITH ONE PARTNER. § 447.

So if a sale of goods is made, with knowledge of the ex-
istence of the firm, but on the individual credit of one part-
ner alone, though the goods are turned over by him to the
firm, or bought with that intention.^

One partner purchased flour on his own behalf, hut this being
tlie business of the firm, the firm claim the benefits of it; but this
right cannot avail any one else, and hence the seller cannot hold
the firm."

§ 447. When the firm is trusted, and when one partner
only. — As already suggested, difficulty, especially on oral
contracts, frequently attends determining whether credit was
in fact given to the individual partner or to the firm. The
question is one of intention to be determined by the jury
from the circumstances, unless the contract is written, and
is on its face conclusive, which it sometimes is, though
oftener not.

If the contract is within the scope of the business, the
mere fact that a sijigle partner is dealt with is immaterial,
where not expressly on his individual credit, and the con-
tract will be deemed to be with the firm unless the contrary
appears.'

So ■ a person paying money at the request of a member of a firm
for an apparently firm purpose, as on a note signed by the firm, can

1 Law V. Cross, 1 Black, 533, fol- the contract does not bind the firm,
lowed without comment in Simpson the partners are Hable in proportion
V. Baker, 2 id. 681; Bird v. Laniiis, 7 to their number for the benefits re-
Ind. 615; Wittram v. Van Wormer, ceived. Lallande v. McRae, 16 La.
44 111. 525; Lafon v. Chinn, 6 B. Ann. 193.

Mon. 305 ; Bracken v. March, 4 Mo. 3 Church v. Sparrow, ,5 Wend. 223 ;
74; Gates v. Watson, 54 Mo. 585; Walden ^. Sherburne, 15 Johns. 409 ;
Nichols V. English, 3 Brewster (Pa.), Hamilton v. Einer, 20 La. Ann. ^1 ;
260; McDonald v. Parker, Sneed Stecker v. Smith, 46 Mich. 14; Au-
(Ky.), 208 ; Macklin v. Crutcher, 0 gusta Wine Co, v. Weippert, 14 Mo.
Bush, 401; Venable v. Levick, 2 App. 483; McKinney v. Bradbury,
Head (Tenn.), 351 ; Holmes v. Bur- Dallam (Tex.), 441 ; Allen v. Owens,
ton, 9 Vt. 252; 31 Am. Dec. 621; 2 Spears (S. Ca.), 170 ; Stark «. Corey,
Chapman v. Devereux, 32 Vt. 616 ; 9 45 111. 431 ; Steel v. Jennings, Cheeves
.^m. Law Reg. (O. S.) 419. (S. Ca.), 183; Venable v. Levick, 3

2 Lockwood V. Beckwith, 6 Mich. Head (Tenn.), 351.
168. In [Louisiana, however, while

Vol. 1—30 465

§ 448. CONDUCT OF THE BUSINESS.

hold the firm, unless he knew that it Was an individual matter or a
forgery.'

In Baker v. Nappier, 19 Ga. 520. the plaintiff sold goods to K.,
supposing in the exercise of ordinary care that they were for the
firm of K. & A., but K. intended them for K. & B., and it was ruled
that he could hold K. & A., the goods being suitable for that firm ;
though the general rule is that ordinary care on the part of the
seller, knowing of the existence of both firms, requires him to in-
quire whicli fitm is intended, if the buyer does not indicate which.

So of a loan of money; the lender may assume it is for the firm,
unless it is stated to be for individual purposes.''

In Mills V. Bunce, 29 Mich. 364, it was said that in determining
whether the firm or one partner was dealt with, a considerable de-
gree of latitude in the proof tending to show that the other part-
ner knew the plaintiff understood himself to be dealing with all
should be allowed.

If the contract on which it is sought to hold the firm was a
matter not connected with the business, it is presumptively a per-
sonal contract with the individual partner, though in the firm
name.'

§ 448. evidence cliai'ging the firm. — Merely that the

other partners were aware that the money was to be borrowed or
contract made does not make the borrower an agent of the firm in
the matter;* nor a mere request that plaintiff become surety on
the note of the borrowing partner, for that is not a promise to in-
demnify, and does not make the loan a partnership debt; ' yet the
acquiescence of the other in plaintiff's performing for the firm serv-
ices contracted for with one partner is evidence of joint liability.'

The firm may assume the debt with the creditor's assent. Here
the consideration must be considered to-be the release of the in-

i Bllnn V. Evans, 24 III. 317. for the balance, yet it was held that

2 Sherwood ?;. Snow, 46 Iowa, 481 C. could recover the balance from

(26 Am. Rep. 155). In Rose v. Baker, the firm.

13 Barb. 230, A. & P., in 1847, were sRutledge v. Squires, 28 Iowa, 53;

partners in buying wheat. C. let A. and see generally under Scope of the

have $300, which was used to pay Business, and §§ 349, 421.

for wheat bought for the firm. A * Farmers' Bank v. Bayliss, 41 Mo.

few days afterwards A. gave C. 274.

his individual note, and a jear after- 5A.sbury v. Flesher, 11 Mo. 610.

wards, and after dissolution, A. paid ^Bowne v. Thompson, 1 N. J.

a part and gave his individual note L. 2.

CONTRACTS WITH ONE PARTNER. § 448.

dividual liability of the borrowing partner, since the past benefit
or moral consideration is not sufficient."

In Union Bank p. Eaton, 5 Humph. (Tenn.) 501, it was held
that if money was borrowed by -a partner on his own credit, and
his own note was given, but the money went to the use of the
'firm, it was no fraud on his copartners to substitute the firm note
afterwards for his own, and if the money was borrowed for and on
the credit of the firm, the firm is liable on a partnership note sub-
stituted for the individual note, though there was no proof that the
money was actually so applied."

But in McCord v. Field, 27 Up. Can. 0. P. 391, where a partner
borrowed money, giving his individual notes, and used it for the
firm, and to secure them signed another note in the firm name, it
was held that there could be iio recovery on the latter against the
firm.'

And in Gansevoort v. Williams, 14 Wend. 133, it was held that
a note of the firm to renew a note of one partner did not have
the appearance of beiiig the act of the firm, and that the creditor
must show that it was authorized.

In Header v. Malcolm, 78 Mo. 550, the lender took the individual '
note of the partner, not noticing the signature, and not so intend-
ing, but afterwards, on discovering this, immediately insisted upon
and procured a note signed in the firm name by such partner, and
it was held that the facts could be shown and the firm made liable
on the latter note.

And after the partner who made the note has paid it it is ex-
tinguished, and an assignee of it from him cannot recover on the
naked promise of the other partner to pay it.*

In Ostrom v. Jacobs, 9 Met. 454, the action was on a note signed
by one partner in his own name alone, and evidence that one of
the other partners recognized the note as a firm debt, and tried to
borrow money to pay it, was held not admissible against a third
partner, unless it is shown that he consented to or knew this.

1 Barcrof t v. Snodgrass, 1 Cold. 2 gee, also, Hurd v. Haggerty, 84

(Tenn.) 430; Nichols v. English, 3 HI. 171; Davidson v. Kelly, 1 Md.

Brewster (Pa.), 260; Siegel «. Chid- 493.

sey, 38 Pa. St. 379; Smith v.. Turner, 'See, also, Guice v. Thornton, 76

9 Bush, 417 ; McCreary v. Va:n Hook, Ala. 466.

35 Tex. 631 ; Hotchkiss v. Ladd, 36 * Sprague v. Ainsworth, 40 Vt. 47.
Vt 698; 43 idi 345.

467

§ 449. CONDUCT OF THE BUSINESS.

In Benmnger v. Hess, 41 Oh. St. 64, a partner borrowed money,
saying it was for the firm, and two days afterwards brought his in-
dividual note indorsed in the firm name. This was held not conclu-
sive of notice that he borrowed for himself because the note was
not delivered until after the loan was made.

If the borrowing partner give as security the firm's acceptance
of another's draft, this is evidence that the loan was made to the
firm.' Especially where similar prior partnership indorsements
had been paid by him.'

§449. admissions in books and letters. — That the

plaintiff had charged the goods furnished or money loaned
on his books to the individual partner is not conclusive to
exonerate the firm.' And that the firm have the debt en-
tered on their books as a liability is not conclusive against
them that it is so. Where the maker of the note is, as to
the creditor, the only debtor, the manner of keeping books
is not conclusive, though competent evidence, as an admis-
sion, as is any evidence that it was treated as a firm debt. ■*

Letters addressed by the lender to the managing partner, who
had appropriated the loan to his own use personally, do not show
him to be the sole borrower, for it is natural to - write to the
manager.' The stub or counterfoil of the lender's check book was
held competent as evidence that the credit was to the firm. The
check was payable " to currency." " The books of the firm were
held competent in their, own favor to show that the partner alone
was credited with the amount where the creditor was aware that
the other partner, who ■ had also signed the note, was surety only
and the creditor had extended the time without his consent,' or to
show that no entry of the transaction was made upon them of any
kind.'

iSaltmarsh v. Bower, 23 Ala. 231. the Clerk made the entry without

2 Bank of Commonwealth v. Mud- directions.

gett, 44 N. T. 514 (afl. 45 Barb. 663); 4 Tucker v. Peaslee, 36 N. H. 167;

but see Davis v. Blaokwell, 5 111. Strong tJ. Baker, 35 Minn. 443; Wil-

App. 33. lis V. Bremner, 60 Wis. 633 ; Scott v.

3 Richardson v. Humphreys, Minor Shipherd, 3 Vt. 104.

(Ala.), 383; Baring v. Crafts, 9 Met. 5 stark v. Corey, 45 111. 431.
380 ; Braches v. Anderson, 14 Mo. 6 id. ged qu.
441 ; Gates v. Watson, 54 Mo. 585 ; ^ Strong v. Baker, 25 Minn. 442.
Bracken v. March, 4 Mo. 74, where 8Fosdicku.VanHorn,40Oh.St.459.

468

CONTEAOTS WITH ONE PARTNER. § 451.

§ 450. contemporaneous declarations. — Declarations

of the contracting partner, at the time of procuring the
goods or money, that it was for the use of the firm, are com-
petent and cogent evidence that the credit was given to the
firm.i

Oa the other hand, in Mills v. Kerr, 32 Up. Can. C. P. 68, where
the payee of a note signed in the firm name refused to treat with
the firm, and declared that he looked only to the partner who ex-
ecuted it and would have nothing to do with the others, it was held
that he could not rank with creditors of the partnership on distri-
bution.

§ 451. The indiTidual partner and his sureties.^- As be-
tween the contracting partner who has pledged his sole
credit, and his firm, who received the benefit of it, such
benefit is regarded as an advance by him to the firm.^

It is, of course, inaccurate to say, as some of the cases do, that
as between the partners such partner is a creditor of the firm, for
that depends upon what a general balance would show, and such
balance may fluctuate daily; hence, a surety for such partner who
pays his note is not a creditor of the firm, for his principal, the in-
dividual partner, is not a creditor.'* And if such surety became such
on the assurance of the contracting partner that it was a firm debt
and the usual way of signing partnership notes, and tha,t the co-
partners would also sign, such surety, after paying the debt, is a

1 Tremper v. Conklin, 44 N. Y. 58 (30 Am. Rep. 607) ; Asbury v. Flesher,
(aflf. 44 Barb. 456); Crocker, v. Col- 11 Mo.~ 610; Moore v. Stevens, 60
well, 46 N. Y. 213; Smith v. Collins, Miss. 809; Tom v. Goodrich, 3 Johns.
115 Mass. 388; Benninger v. Hess, 41 213; Krafts v. Creighton, 3 Rich. L.
Oh. St. 64; Stockwell u Dillingham, 273, In Walden vl Sherburne, 15
50 Me. 443 ; Peterson v. Roach, 33 Oh. Johns. 423, it was held that if the
St. 374 (30 Am. Jlep. 607) ; MafEet v. debt of the partner is a sealed ob-
Leuckel, 93 Pa. St. 468. Declarations ligation for customs duties, given by
or admissions of a partner after the him in his own name because the
fact stand on a differentlground. See other partner was abroad, althougli
Admissions, §§ 381-3. had the surety on such bond pp,id it

2 Green v. Tanner, -8 Met. 411; he could have recovered only from
Dewey v. Dewey, 35 Vt. 555, 559 ; such partner, yet if he furnishes the
Sprague v. Ainsworth, 40 Vt. 47 ; partner with money to pay it, can
Farmers' Bant v. Bayliss, 41 Mo. 374. hold the firm for the loan, since it is

i* Peterson v. Roach, 33 Oh. St. 374 a partnership charge.

469

§ 452. CONDUCT OF THE BUSINESS.

creditor of the firm; for the request of one partner of the firm
within the scope of the business is the request of the firm, and on
the principle stated in the preceding section.' So, if a partner
hire slaves with the consent of and for the firm, biit gives his own
note, although the firm is not bound by the note, yet the consider-
ation is their debt, and a surety who pays the note can hold the
firm.' But a mere statement of the contracting partner, to induce
one to become surety, that the firm wanted money for its business,
is not sufficient to control or vary the written evidence of the in-
dividual note.'

The question whether the contract is one of the individ-
ual partner on behalf of the firm, or on his own behalf, is a
question of fact for the jury. '

§ 452. Note signed Iby each indiyidually. — Allied to the
preceding subject is that of the liability of the firm on notes
signed by each and all of the partners individually, instead
of in the collective or firm name. The importance of the
question arises when the holder of such note seeks to rank
with partnership creditors, in insolvency or in any distribu-
tion of the assets of the firm; for, if he is a creditor of the
individual partners and not of the firm, he cannot share
pari passu with the creditors of the firm. It may also arise
where a. partner, on buying out copartners, assumes all the
liabilities of the firm.

A note signed by each member of the firm purports, of
course, on its face to be the note of a number of individua,ls,
and the mere fact that a partnership exists between them
does not connect the note with the firm, and such fact alone
is immaterial. Prima facie, therefore, the note is the sev-

iMcKeew. Hamilton, 33 Oh. St. 7. Johnson, 2 Pet. 186, 300; Poole w

2 Burns v. Parish, 3 B. Mon. 8; Lewis, 75 N. Ca. 417; Benninger v.
Weaver v. Tapscott, 9 Leigh (Va.), Hess, 41 Oh. St. 64. The evidence of
424. a witness that the partner contracted

3 Uhler V. Browning, 88 N. J. L. individually is not conclusive, for it
79. is matter of opinion rather than of

* Smith V. Collins, 115 Mass. 388; fact, and is the very point in dis-
Stecker V. Smith, 46 Mich. 14; Bowne pute. Stecker v. Smith, 46 Mich.
V. Thompson, 1 N. J. L. 2 ; Le Roy v. 14.

470

CONTRACTS WITH ONE PAETNER. § 453.

eral obligation of each, whether it be in terms joint, or joint
and several.'

Separate notes by eacli partner for his portion of a debt due by
the firm are not partnership liabilities," but the debt itself remains
a partnership debt/

In Hilliker v. Francisco, 65 Mo. 598, a contract in the names of
the individual partners, though signed in the firm name, was held
to be the contract of the individual partners, and not of the firm,
and hence the objection that a third partner should have been co-
plaintiif in an action upon it is hot sustainable, nor will the part-
nership assets be applied in equity to pay it.

§ 453. May be shown to be a partnership note. — Such
note may, however, be shown to be the note of the firm in
certain cases. A mere intention that it shall be a firm debt
is sufficient inter se, but this is not sufficient as against firm
creditors on distribution, unless it is equitable that it should
be so by reason of the consideration or use of the note
having been for partnership purposes.*

1 Re Roddin, 6 Biss. 377; De Jar- s Taylor v. Farmer (111.), 4 N. E.
nette v. McQueen, 31 Ala. 230 ; Free- Rep. 870. See Gandolfo v. Appleton,
man v. Campbell, 55 Cal. 197; Pahl- 40 N. Y. 583.

man v. Taylor, 75 III. 639; Mack v. * Ex parte Stone, 8 Ch. App. 914;

Woodruff, 87 id. 570; Wellman v. iJe Warren, 3 Ware, 332; Trowbridge

Southard, 30 Me. 425; Ex parte «. Cushman, 24Pick. 310;Maynard'W.

Weston, 13 Met. 1 (cited in Harmon Fellows, 48 N. H. 255; Gay v. John-

V. Clark, 18 Gray, 114) ; Ensign v. son, 45 N. H. 587 ; Kendrick v. Tar-

Briggs, 6 Gray, 339; Dunnica v. bell, 37 Vt. 513; Mix ?;. Shattuck, 50

Clinkscales, 73 Mo. 500; Buffum v. id. 431 (38 Am. Rep. 511); Berkshire

Seaver, 16 N. H. 160; Turner v. Jay- Woolen Co. v. Juillard, 75 N. Y. 585;

cox, 40 N. Y. 470 (dictum is explained 31 Am. Rep. 4S8 (aff. 13 Hun, 506) ;

in Berkshire Woolen Co. v. Juillard, Nelson v. Healey, 63 Ind. 194 ; Spald-

75N. T. 535;31 Am. Rep. 488);Gan- ing u Wilson, 80 Ky. 589, 595;

dqlfo V. Appleton, 40 id. 583; Ellin- Mitchell v. D'Armond, 30 La. Ann.

ger's Appeal (Pa.), 7 Atl. Rep. 180. P. I, 396; Clanton v. Price, ^0 N. Ca.

And see McKenna's Appeal, 11 Phila. 96, 99 ; Richardson v. Huggins, 33 N.

84, and Dabney v. Stidger, 4 Sm. & H. 133 ; Carson v. Byers, 67 Iowa,

Mar. 749; Fowlkesw. Bowers, 11 Lea, 606; McKee v. Hamilton, 83 Oh. St.

144; Walsh v. Moser, 38 Tex. 390. 7, 13; Turner v. Jaycox, 40 N. Y.

And see cases cited in the next sec- 470 ; In re Waldron, 98 N. Y. 671 ;

tion. Frow, Jacobs & Co.'s Estate, 73 Pa.

2 See Emanuel v. Martin, 13 Ala. St. 459; In re Thomas, 8 Biss. 139;
233, 17 Bankr. Reg. 54; De Jarnette v.

471

§ 453. CONDUCT OF THE BUSINESS.

Where no firm name had been adopted, a note signed by
each partner for a partnership debt binds the firm.' And
though they had a firm name, but their customary way of
executing partnership notes was in the individual names,
and the note in question was so intended.^ And so of a
note or other instrument signed by one partner with the
individual names of each, for a partnership purpose, is the
same as if the firm name were signed.'

But prosecuting an action against one partner alone is treating
the note as the debt of the partners and not of -the firm;* and if
such note was made before the partnership was formed, but the
avails of it were treated as a partnership fund, it is a partnership
debt."

A note signed by one partner and indorsed by the other, if for
partnership purposes, may be treated as a debt of the firm." So of
a draft by one partner on the other to pay for goods bought on

McQueen, 31 Ala. 230, 231; Crouch 2McKee v. Hamilton, 33 Oh. St.

V. Bowman, 3 Humph. 209. And see 7, 12.

Smith V. Felton, 43 N. Y. 419 ; Filley ' Norton v. Seymour, 3 C. B. 798 ;

V. Phelps, 18 Conn. 294, and Aga- 16 L. J. C. P. 100; 11 Jur. 313; Hol-

wam Bank v. Morris, 4 Cush. 99. den v. Bloxum, 35 Miss. 381 ; Patch

CoMira, that a joint and several note ■;;. Wheatland, 8 Allen, 102; Crouch

signed by the partners individually v. Bowman, 3 Humph. 209 ; McGregor

and by other makers is the several v. Cleveland, - 5 Wend. 475. See

note of each, and not provable Austin v, Williams, 2 Oh. 61.

against the joint estate. Be Hoi- iPage v. Carpenter, 10 N.'H. 77;

brook, 3 Low. 359. And though the Gay v. Johnson, 45 id. 587.

payee refused to receive the note in 5 JJe Thomas, 17 Bankr. Reg. 54; 8

the firm name, Kendrick v. Tarbell, Biss. 139.

27 Vt. 512. And so though made after 6 city Bank of New Haven's Ap-

dissolution, De Jarnette «. McQueen, peal (Conn.), 7 Atl. Rep. 548; Ex

31 Ala. 230. But compare Ensign v. parte First Natl. Bank,- 70 Me. 369 ;

Briggs, 6 Gray, 329. Or though sub- Smith v. Felton, 43 N. T. 419 •

stituted after dissolution for a note Thayer u Smith, 116 Mass. 363. See

in the firm name, this does not sliow also. Booth v. Farmers' & Mech.

an intent to make it an individual Bank, 74 N. Y. 228 (aflf. 11 Hun

debt, the form of negotiable paper 258), where four partners signed the

being very slight evidence, Maynard note and the fifth indorsed it; and

V. Fellows, 43 N. H. 355. Contra, see Ladd v. Griswold, 9 IlL 25 (IS

Crocker y. Crocker, 52 Me. 367. Am. Dec. 443).

1 Ex parte Nason, 70 Me. 363 ; Ex
parte First Natl. Bank, 70 Me. 369.

473

CONTRACTS WITH ONE PARTNER. * § 453a.

joint account.' So if the note for a partnership deht is signed by
one partner as principal and the other as surety."

In Filley v. Phelps, 18 Conn. 294, three persons formed a part-
nership in the livery business and bought out a stable, giving their
joint and several notes. These were held partnership debts, en-
titled to rank on the joint estate to the exclusion of separate cred-
itors of each.

So in Prow, Jacobs & Co.'s Estate, 73 Pa. St. 459, the joint and'
several obligation of continuing partners, signed individually, to
the retiring partner, to pay the debts and indemnify him, is inferred
from the nature of the transaction to be a partnership and not an
individual obligation, and the retiring partner, having paid the un-
paid debts, is entitled to a dividend from the assets of thefljew firm
in insolvency.

If the note v?as given for a purpose not connected with
the partnership business it will be treated as the separate
debt of the individuals.' It was so held where the partnets
had signed as sureties,^ and where one partner made a loan,
giving his individual note which the other partner also
signed or indorsed.*

§453 a. election to treat it as separate or joint. — If

the note by being for partnership purposes is a debt of the firm, it
is such at the election of the creditor — certainly in states where
separate creditors of each partner do not have a priority in his in-
dividual assets over partnership creditors — and the creditor can
rank on the separate or joint estate, but not on both. Suing the
members jointly and not as partners is an election to treat the note
as a separate debt, for^as the note does not appear to be a partner-
ship act, it must be declared on as such to hold the firm.'

A note signed both in the individual names and in the firm's

1 Addison v. Burckmyer, 4 Sandf. ^ Sg Bucyrus Machine Co. 5 Bankr.
Oh. 498. Reg. 303 ; Drake v. Taylor, 6 Blatch.

2 Pollard V. Stanton, 5 Ala. 451. 14; Ex parte Stone, L. R. 8 Ch. App.
» Forsyth u "Woods, 11 Wall. 484. 914; Maynard v. Fellows, 43 N. H.
< Spalding v. Wilson, 80 Ky. 589, 255; Page v. Carpenter, 10 id. 77;

595; Ex parte Weaton, 12 Met. 1. Ex parte First Nat'l Bank, 70 Me.
» Pahlman v. Taylor, 75 111. 629 ; 869. Compare Agawam Bank v.
LiU V. Egan, 89 111. 609 ; Burns v. Morris, 4 Cush. 99.
Mason, 11 Mo. 469.

473

§ 453a. CONDUCT OF THE BUSINESS.

name may be held both ways. If the creditor can get the addi-
tional security he is is entitled to it.'

In Donley v. Bank, 40 Oh. St. 47, 51, a note signed in the firm
name was indorsed by the partners individually, and it was said
that generally such double execution was to dispense with proof
of the membership of the firm; but it was also said that the indi-
viduals are sureties for the firm.

But in Tuten v. Ryan, 1 Spears (S. Ca.), 240,° one of the part-
ners indorsed his individual name on the firm's note, and it was
held that he was not chargeable, either as indorser or maker; that
nothing was thereby added to his liability.

Where a bill is drawn on a firm and is accepted in the firm name
by a par> er who adds his individual name underneath, no separate
liability is created thereby.'

No agreement can be inferred from signing a note for a partner-
ship debt individually, that the parties are to contribute to each
other, but the usual rule that one cannot sue the other at law for a
firm matter applies."

A letter thus: " We hereby guaranty," signed in the firm name
and also by each partner, was held to be the contract of the firm
and of each partner separately.'

iFowlkes V. Bowers, 11 Lea, 144; - »iJe Barnard, 32 Ch. D. 447; Mal-
Re Farnum, 6 Law Rep. 21 ; Re colmson v. JIalcolmsion, 1 Irish L. R.
Bradley, 2 Biss. 515 ; Re Adams, 39 Ch. D. 228.

Fed. Rep. 843; National Bank v. *De Jarnette v. McQueen, 31 Ala.
Bank of Commerce, 94 lU. 271. 280, 233 ; Booth v. Farmers' & Mech.

2i2e Blumer, 13 Fed. Rep. 632; Bank, 74 N. Y. 228 (afl. 11 Hun, 258).
Fayette Nat'l B'k v. Kenney, 79 Ky. And see Kendrick v. Tarbell, 27 Vt.
133. And see Stevens v. Wegt, 1 512.

How, (Miss.) 308. • ^ Ex parte Harding, 13 Ch. D, 557.

474

CHAPTER IX.

DEGREE OF LIABILITY ON CONTRACTS.

' § 454. Contracts are joint, and not joint and seyeral. — In

the eye of the law, as distinguished from equity, partner-
ship contracts are considered to be joint; but it is often said
that in equity they are joint and several, and it is certainly
true that death does not in equity release the estate of the
■ deceased partner from liability, and, in this sense, the con-
tract is in equity deemed to be joint and several; but it
seems not in any other sense, either to permit a set-off in
equity of partnership and individual debts or otherwise; and
the latest expression of eminent English judges is that the
phrase partnership debts are in equity joint and several is
not to be understood in the proper and technical sense of
the words, but refers only to the remedy and not the nature
of the debt.'

1 See the opinions of Lord Cairns, v. Graham, 46 Miss. 435, 437 (but see
Lord Hatherley, Lord O'Hagan and Keerl v. Bridgers, 10 Sm. & Mar.
Lord Selborne in Kendall v. Hamil- 613) ; BoWen v. Crow, 16 Neb. 556 ;
ton, L. R. 4App. Cas. 504; s. C. 3 C. Tinkum v. O'Neale, 5 Nev. 93; Cur-
P. D. 403. And see Beresford v. tis v: HoUingshead, 14 N. J. L. 403,
Bi owning, L. R. 20 Eq. 564, 573, 577, 409; Marvin v. Wilber, 53 N. Y. 370;
where the doctrine of joint and sev- Cowdin v. Hurford, 4 Oh. 133; Weil
eral liability was affirmed as to com- v. Guerin, 43 Oh. St. 399, 302 ; Kamm
mercial firms, but the M. R. was v. Barker, 3 Oreg. 308; Wiesenfeld
non-committal as to any other part- v. Byrd, 17 S. Ca. 106, 113-14; Davis
nerships. That partnership Gon- u Willis, 47 Tex. 154; Washburn u.
tracts are at law joint only was held Bank of Bellows Falls, 19 Vt. 378,
in Harrison v. McCormick, 69 Cal. 28S. As a consequence, all the part-
616; Currey v. Warrington, 5 Harr. ners must sue and be sued, and the
(Del.) 147 ; Wiley v. Sledge, 8 Ga. property of one cannot be attached
532 ; Thornton v. Bussey, 37 id. 303 ; if he is a non-resident, as will be
Crosby v. Jeroloman, 37 Ind. 364 ; elsewhere shown. In Strong v. Niles,
Boorum v. Ray, 73 id. 151 ; Scott v. 45 Conn. 53, a firm of four dissolved,
Colmesnil, 7 J. J. Mar. 416 ; Will- three of them forming a new part-
iams V. Rogers, 14 Bush, 776 ; Irby nership and employing the former

« 475

§ 455. CONDUCT OF THE BUSINESS.

In law a partnership contract is several to the extent that if a
single partner or a number less than all are saed and do not -plead
non-joinder of the others, a recovery against him or them alone
may be had.'

We have already seen that a partner is agent for all, and not for
each, and cannot therefore, without special authority, make joint
and several contracts; but if he does so, he is severally liable upon
them and the firm jointly only.

§ 455. Inter se. — The balance owed by debtor partners to a
creditor partner on final accounting is owed by them each for his
own amount, and a decree against them jointly is erroneous;* ex-
cept where they have in bad faith excluded him from participation
in the business and profits, and from knowledge of the books, in
which ease they have been held jointly and severally liable for his
final balance;'' or, used the assets to pay the debts of their former
firm, of which he was not a member;* or where surviving partners
book-keeper, who transferred to his Woodworth v. SpafEord, 3 McLean,
own account in tli.e new firm a bal- 168. Lord Mansfield's dic^MW in Rice
ance due him by the old for salary, v. Shute, 5 Burr. 2611, that it is joint
The new firm afterwards paid him and several, means so only to the
their account without knowing that above extent.

it consisted in part of the debt of the ^ Starr v. Case, 59 Iowa, 491 ; Rhiner
old firm. The payment was partly v. Sweet, 2 Lans. 386 ; Portsmouth v.
in cash and partly by a note. In an Donaldson, 33 Pa. St. 202 ; Eaiguel's
action by him on the note the de- Appeal, 80 Pa. St. 234, 350 ; 9 Phila.
,f endants attempted to offset the 275. And so where two partners buy
cash, but it was held that the plaint- out the interest of a third, signing iu
iff could retain the cash payment, their individual capacities, each is
The court say this is because they liable for half, and not in' solido.
are jointly and severally liable. Lush v. Grraham, 31 La. Ann. 159.
which is not true. In fact, the as- Unless by the agreement of dissolu-
sets of the new firm were thus ap- tion, the continuing partners have
plied to discharge a debt of the part- jointly covenanted with the retiring
ners as individuals and not a firm partner, and he stands on the cove-
debt. The word joint, in the sense nant. Wilmer v. Currey, 3 DeGr. &
j that death released one of the joint Sm. 347; Beresford v. Browning, 1
' promisors entirely so that his estate Cli. D. 30, wliere the covenant wS(s
was liable neither to the creditor nor held to be joint and several,
to contribute to payments by the SBloomfield v. Buchanan, 14 Ore-
survivors, is perhaps nearly obsolete gon, 181; Allison v. Davidson, 3Dev.
except in so far as it affects the Eq. 79.
remedy. *Wentworth v. Raiguel, 9 Phila.

1 Mason v. Eldred, 6 Wall. 281, 285 ; 275 ; Eaiguel's Appeal, 80 Pa. St.
Barry v. Foyles, 1 Pet. 311, 317; 234.

476

DEGREE OF LIABILITY ON CONTRACTS. § 457.

have divided up the assets among themselves, they are jointly liable
to the executor for the decedent's share.'
. , § 456. Contra by statute. — The statutes of several states
haVe, however, made joint debts joint and several, and this applies
to partnerships. Such are the statutes of Alabama, |Akkan"SAS,
Colorado, Georgia, Iowa, Illinois, KaJtsas, Kentucky, Missis-
sippi, Missouri, Montana, New Jersey, New Mexico, North
Carolina and Tennessee.''

A statute that contracts by several persons shall be joint and
several does not apply to partnerships.'

When such a statute is in force, an action on a foreign judgment
rendered against partners need not be ' brought against them all.''

§457. In solido. — Each partner is liable in solido for all
debts of the firm. This does not mean that one partner can
be sued alone, which depends upon whether the liability is
joint or several, but means that the entire fortune of each
partner, not only that embarked in the business, but what-
ever he may own, is liable to ^nake good the firm's debts,
whether the other partners are able to contribute or not;
and regardless of the amount or proportion of his interest
in the fi.rm, whether it be large or small,' the consequence is
the same.'

1 Bundy v. Toumans, 44 Mich. 376 ; ' Currey v. Warrington, 5 Harr.

Birdsall v. Bemiss, 2 La. Ann. 449. (Del.) 147 ; Kamna v. Harker, 3 Oreg.

2See.Conklin v. Harris, .'5 Ala. 313; 208.
Travis v. Tartt, 8 id. 574; Pearce v. <Bellerville Sav. Bk. v. Winslow,
Shorter, 50 id. 318; Hall v. Cook, 69 30 Fed. Rep. 488.
id. 87; Hamilton V. Buxton, 6Ark. 24; ssee, for example, Rice v. Shute
Burgen v. Dwinal, 11 id. 314; Kent 5 Burr. 2611; Abbot r. Smith, 3Wm,
V. Walker, 21 id. 411 ; Cannon v, Bl. 947 ; Wright i). Hunter, 1 East,
Dunlap, 64 Ga. 680 ; Williams v. 20 ; Doddington v. Hallet, 1 Ves. Sr,
Muterbaugh, 39 Kan. 730; Wright u. 497; Rex v. Dodd, 9 East, 516; Sal-
, Swayne, 5 B. Mou^ 441 ; Williams v. toun v. Honstoun, 1 Bing. 433, 444
Rogers, 14 Bush, 776; Nuttv. Hunt, Medberry v. Soper, 17 Kan. 369
4Sm. &Mar. 703; Miller u Northern Benchley v. Chapin, 10 Cush. 173
Bank, 34 Miss. 413 ; Wilson v. Home, Morrell v. Trenton Mut. L. & F. Ins
37 id. 477 ; Griffin v. Samuel, 6 Mo. Co. 10 Cush. 282 ; 57 Am. Dec. 93
20; Puinamw. Ross, 55 id. 116; Gates Hanson v. Paige, 3 Gray, 239, 343
V. Watson, 54 id. 585, 595; Simpson Collins v. Charlestown Mut. F. Ins,
V. Schulte, 21 Mo. App. 639; Logan Co. 10 Gray, 155; Nebraska R. R,
V, Wells, 76 N. Ca. 416 ; Gratz v. Co. v. Colt, 8 Neb. 351 ; Judd Lin-
Stump, Cooke (Tenn.), 493, 496. seed & Sperm Oil Co. v. Hubbell, 76

477

§ 459 CONDUCT OF THE BUSINESS.

Hence a creditor of the fii'in bas.an insurable interest in the life
of one of the partners, although the other is solvent.' And hence
if one partner becomes assignee in insolvency of a creditor of the ,
firm, he must charge himself in the account with the fuU amount
of the debt and not with the proceeds merely of a sale of it. Thus,
in Bencbley v. Cbapin, 10 Cush. 173, where B., of B. & J., a firm,
became assignee in insolvency of one L., and among the assets of L.
was a note and mortgage made by B. & J., and B., as such assignee^
sold the note at auction, and it was bought for half its amount, and
he charged himself with the proceeds in his account, it was held that
he must charge himself with the whole amount. For as partner of
B. & J. he is liable in soli do for its debts; therefore it is his own
debt. The person to whom he sold is entitled to collect the whole,
therefore the creditors would lose one-half, if this sale is allowed,
and that, too, through the default of the person who should protect
their rights. Hence, also, the lien of a corporation on stock in the
name of a person will secure debts owing to it by his firm as well
as by himself.' And, as we shall see, a judgment creditor of the
firm can levy execution for the entire debt upon the property of
any of the partners.

§ 458. Joint stock companies. — This doctrine of unlimited
liability applies also to all unincorporated joint stock com-
panies as well as to ordinary partnerships.'

§ 4-59. Limited by contract. — There is no reason why the
liability may not be limited, if so agreed by all parties, in-

N. Y. 543 ; Allen v. Owens, 3 Spears i Morrell v. Trenton Mnt. L. & F.
(S. Ca.), 170. In Louisiana, however, Ins. Co. 10 Cush. 282; 57 Am. Dec.
partners in commercial partnerships 93.

are liable in solido. Villa v. Jonte, 2 j^ Bigelow, 1 Bankr. Reg. 667.
17 La. Ann. 9; Gumbel v. Abrams, 'Lindley on Partnership, p. 376.
30 id. 568. But in ordinary partner- See, also, Hodgson v. Baldwin, 65 111.
ships each is liable only for his share. 533 ; Greenup v. Barbee, 1 Bibb, 830 ;
Jones V. Caperton, 15 La. Ann. 475 ; Wright v. Swayne, 5 B. Mon. 441 ;
Hyams v. Rogers, 34 id. 230 ; Payne Robinson- v. Robinson, 10 Me. 240 ;
V. James, 36 La. Ann. 476, a plant- Frost v. Walker, 60 id. 468; Hess v.
ing partnership ; Hardeman v. Tab- Werts, 4 S. & R. 148 ; Whitman v.
ler, 86 La. Ann. 555, a partnership Porter, 107 Mass. 533, 534; Cutler v.
to construct a riailroad. But may Thomas, 35 Vt. 73; First Nat. Bank
become liable in solido by special v. GoflF, 31 Wis. 77 ; Coleman v, BeU-
contract. Payne v. James, 36 La. house, 9 Up. Can. C. P. 31.
Ann. 476.

478

DEGEEE OF LIABILITY ON CONTRACTS. § 460.

eluding the creditor. A provision in the articles that one
partner shall not be generally liable for losses will be of no
effect as to creditors who did not have notice of this pro-
vision at the time of contracting.^

And that the partner whose liability is attempted to be limited
is a dormant partner does not relieve him.'' The stipulation is
valid inter se, and the partner who is not to share losses may re-
quire reimbursement if compelled to pay.' And the burden Jo
prove notice of the restriction is upon the partner who claims it.
And a particular creditor may agree with one partner not to hold
him liable for the debt.*

§ 4:60. statutory; limited partnerships.— There is a stat-
utory form of partnership based on a limited liability, called limited
partnership, provided for by statute in Upper Canada or On-
tario, and the District of Columbia, and in all the states of the
Union, and in all the organized territories except Arizona, Idaho
and New Mexico,'' in which some of the partners, called special,
risk merely their capital, and the others, called general, incur an
unlimited liability. Limited partnerships arose in Italy in the early
middle ages-, and are much in vogue in the continental European
countries. They were first introduced here in New York, but in
this country they difFer from the European system in the great
strictness with which statutory requirements of paying in the cap-
ital, recording, advertising and non-interference of the special part-
ner and suppression of his name must be observed, for the special
partner is not allowed to take any part in the management of the
business., lest an appearance of being a general partner be held out.

lAla. Fertilizer Co. u Reynolds, 79 270,; Gillan v. Morrison, 1 DeG. & S.

Ala. 497 ; Phillips v. Nash, 47 Ga. 218; 431.

Saufley v. Howard, 7 Dana, 367 ; < Batty v. McCundie, 3 0. & P. 203 ;

Williams v. Rogers, 14 Bush, 776; Cannop v. Levy, 11 Q. B. 769. See

Perry v. Randolph, 6 Sm. & Mar. 335 ; Hart's C^ise, 1 Ch. D. b07. It has been

Lynch v. Thompson, 61 Miss. 854; held that a person dealing with a

Coleman v. Bellhouse, 9 Up. Can. C. joint stock company of a kind where

P. 31, unlimited liability is generally stipu-

2 Phillips V. Nash, 47 Ga. 218. See lated against, is aflfected with notice

Winsbip v. U. S. Bank, 5 Peters, of such custom, but this doctrine is

529. not favorably regarded.

s Geddea v. Wallace, 2 Bligh's Rep. * Alaska and the Indian Territory

not being organized.
479

§ 460. CONDUCT OF THE BUSINESS.

There is also another form of limited association permitted by stat-
ute in Michigan, New Jersey, Ohio, Pennsylvania and Virginia,
wherein all the partners are special, governed by managers, and
the name of which must be followed by the word " limited." There
is a large body of law relating to these various limited partnerships,
which has been made the subject of a separate treatise by the
author of this work.

480

CHAPTEE X.

LIABILITY FOR TORTS.

§ 461. Each partner being the agent of the firm, the firm
is Hable for his torts committea M^ithin the scope of his
agency, on the principle of respondeat superior, in the same
way that a master is responsible for his servant's torts, and
for the same reason the firm is liable for the torts of its
agents or servants. On the other hand, if the tort was not
committed in the prosecution of the joint business or within
its scope, the mere relation of partners does not make the
conduct of the individual imputable to the firm, unless it
was authorized by the copartners.

The test is often laid down that partners are not liable for each
others' wilful torts. Many of the cases in this chapter are entirely
inconsistent with such a distinction, unless wilful is strained, into
the meaning of outside the scope pf business. If the partner goes
out of his way to commit the tort, whether wilful or not, the other
partners are not liable for it.'

The effect of subsequent approval, and the consequences if ' the
innocent partners get the benefit of the act,. knowingly or not, will
be hereafter considered.

§ 462. Illustrations.— In Moreton v. Hardern, 4 B. & C. 223;
6 Dow. & Ry. 275, all members of a firm of stage-coach propri-
etors are liable to an action on the case for the negligent driving
of one who ran into the plaintiff and broke his leg. Trespass
would have lain against the negligent partner, but not against the
innocent ones. So for injury to a passenger by one owner of a line
of coaches.^ Where one of a firm of common carriers took freight
to be put off at a particular place and the boat neglected to stop

1 Pollock's Dig. of Partn. art. 24. 2 Champion v. Bostwick, 18 Wend.

175 (31 Am. Dec. 376).
Vol. I— 31 481

§.462. CONDUCT OF THE BUSINESS.

there, it was urged that he had no right to so agree, but the act
being within the apparent scope of the business all were held
liable.' ■

In Plet&her v. Ingram, 46 Wis. 191, plaintiff's property in the
custody of another was attached as the property of third persons
and bought in by the custodian and sold by him to a member of
the defendant's firm and paid for out of their funds and resold by
the firm; all the partners are liable for the conversion. If a part-
ner borrows^ horse to be used in the partnership business, and by
negligence loses him, the firm is liable.'' So if one partner put
property hired for the use of the firm to a use not stipulated, both
are liable.' Or tore out inside partitions of leased propertj' for the
benefit of the firm." Where one partner knew that qertain lumber
was made by a trespasser out of timber belonging to the plaintiff,
the firm having bought and received them from the trespasser is
liable for conversion.'

In G-wynn ». Duffield, 66 Iowa, 708, one member of a firm of
apothecaries negligently permitted the plaintiff to help himself
to a dose of medicine, without paying for- it, and -by mistake
plaintiff took a poison and became sick. The copartner wtis
held not liable, on the ground that giving away medicines was not
part of the firm's business. But the tort of a partner of one firm
is no defense to an action by another firm, in which there is a
partner common to both firms. Thus where the plaintiffs, part-
ners, sued a railroad company for neglect to receive and carry their
grain, the fact that another firm, of which one of the plaintiffs was

I Heirn v. McCaughan, 33 Miss. 17. Co. to cure pork for the Confedei-ate

2Witcher v. Brewer, 49 Ala. 119. ' troops, and on the retreat of the lat-

3 Myers v. Gilbert, 18 Ala. 467. ter burned down the establishment

< Brewing v. Berryman, 15 New to prevent its falling into the hands

Brunswick, 515. of the Union army. It was held

5 Tucker u. Cole, 54 Wis. 539; Ger- that Bruce was a co- trespasser with

hardt v. Swaty, 57 id. 24. In Lucas the Confederate general, and he and

V. Bruce (Louisville Chancery Ct. his non-resident partners, who were

1864), 4 Am. Law Reg. (N. S.) 95, a innocent of the matter, further than

Confederate general took possession that they had formed the firm to

of a town where Lucas' pork pack- make money out of the Confeder-

ing establishment was, and, at the ates, were liable to Lucas, although

instigation of Bruce, compelled Lu- Lucas, had he remained, would have

cas to rent the premises to Bruce & also furnished pork to them.

\A

LIABILITY FOR TORTS. § 465.

a member, had by its neglect to receive its grain blockaded the rail-
road, is no defense.'

§ 463. Negligence of servants. — A partnership is liable
for the negligence of one of its servants acting within the
scope of his employment.^

In Linton v. Hurley, 14 Gray, 191, the defendants were partners
as stevedores, and while one partner was unloading a vessel, in the
absence of the other, the plaintiff's leg was broken, through the
liegligenee bf servants acting under him. It was contended that
the absent partner was not liable. But it was held that the firm
was liable for injuries by negligence of servants employed by both
or by one of the defendants, while acting within the scope of the
partnership and transacting the business of the firm.

Even where the servant is employed and paid exclusively by one
partner who has sole charge of a branch of the partnership busi-
ness, as a section of a line' of coaches, the copartners are liable.*

§ 464. Scope of authority. — The great difficulty is to de-
termine whether the tort was committed within the scope
of the partner's representative authority. Upon this it may
he said generally that all the partners are liable, if they
would be liable had the same act been committed by an agent
intrusted with the management of its business. Where one
partner purchases goods with the fraudulent intention of
not paying for them, the other, who was ignorant of the in-
tent, is liable only on contract, and not for the fraud. ^

§ 466. in collecting deMs. — Where a partner is' en-
gaged in collecting a debt due to the firm by the usual
methods, legal process, and in so doing commits or author-
izes the commission of a tort in regard to the subjection of
property to the debt, he is deemed to be a,cting within the
scope of his agency, and the firm is liable.

In Loomis v. Barker, 69 111. 360, a firm of three persons, having
got judgment against a person, one of the partners caused execu-

1 Cobb V. I. C. E. R. Co. 38 Iowa, 601. ' Champion v. Bostwick, 18 Wend.
• 2 Stables v. Eley, 1 C. & P. 614; 175 (31 Am. Dec. 376); Laugher v.
Bowas V. Pioneer ToW Line, 2 Sawy. Pointer, 5 B. & C. 547, 570.
21; White V. Smith, 13 Rich. L- 595; < Stewart v. Levy, 36 Oal. 159.
Woodu Luscomb, 33 Wis. 287.

483

§ 465. CONDUCT OF THE BUSINESS.

tion to be levied upou property in the debtor's hands, which be-
longed to a third person; the property was sold, and the firm got
the proceeds. It was held that the plaintiff was entitled to recover
against the firm. The judgment was put not on the ground that
the firm received the benefit, in which case they would have been
exonerated had the partner appropriated the proceeds, but on the
ground that a tort had been committed in the course of business.'

In Harvey v. Adams, 32 Mich. 472, an execution in favor of a
firm was levied, with the assent of one partner, upon property upon
which the plaintiff had chattel mortgages, in disregard of the mort-
gages, and with knowledge of them. It was held that the firqi was
liable for the sheriff's acts, authorized by one partner, in collecting
a debt, and that the firm who desired to get the benefit of the act,
if justified, could not repudiate it if tortious.

• Rolfe V. Dudley, 58 Mich. 208, held that if one member of a cred-
itor firm received property on a void judgment, and refused to give
it up, and the other member referred the owner to the former, botli
were liable; and it was said that whatever one did in the collection
of a debt was presumed to be with the assent of the other.

In Kuhn v. Weil, 73 Mo. 213, all the partners were held liable
for a wrongful attachment by one partner in an action in the name
of the firm to collect a debt; and the same ruling was made in Gur-
ler V. Wood, 16 N. H. 539, where it was added that any doubt of
the liability of the others, arising from their non-concurrence, was
removed by the application of the proceeds of sale to the benefit of
the firm. .

InTajdor v. Jones, 42 N. H. 25, however, the sheriff levied upon
goods marked with the debtor's name, but; in fact, belonging to a
.third person, who demanded them of one partner. The latter's
neglect or refusal to give them up was held not to make the co-
partner liable merely because he was partner, but that the question
whether the other was acting in the proper scope and business of
the partnership must be left to the jury. The tort here was not in
the levy, but in the refusal to release.

In Durant v. Rogers, 71 111. 121, one partner caused the seizing
of the property of another person for a debt due the firm, and being
sued alone on the appeal bond, his surety had to pay; it was held

Is. p. Chambers v. Clearwater, I'Keyes, 310; 1 Abb. App. Dec. 341 (aflg.
41 Barb. 200).

484

LIABILITY FOR TORTS. § 466.

that the surety could not recover. But iu s. c. 87 111. 508, it hav-
ing appeared that the, firm had received the avails of the property^
thereby increasing its assets, the other partners vfere held liable.

In McClure v. Hill, 36 Ark. 268, a debtor of a firm mortgaged
his horse to the firm as security; on default one partner took the
horse illegally by force or fraud., It was held that both were liable,
the trespass being committed in the course of the business. In this
case the firm got the benefit of the act, for the other partner know-
ingly participated in its fruits.

Each partner in eifecting a compromise of their debts is the agent
of the firm, and any dishonest act or misrepresentation in carrying
out the agreement avoids it as to both.'

In Mcllroy v. Adams, 32 Ark. 315, a note belonging to a third
person came into the hands of a member of a firm of brokers and
bankers, and he sued the makers of it in the firm name without
knowledge of his copartners, and, by swearing that the firm owned
the note, deprived the makers of a good defense available to them
against the real owner, and levied execution upon the maker's prop-
erty, greatly injuring it. The innocent partner was held liable for
the injury caused by the unauthorized act. It is, however, dif&cult
to see how the use of the firm name for the convenience of another
can be within the scope of the business.

§ 466. But whatever be the extent of implied authority in
collecting a debt, it does not extend beyond the ordinary
ways of collection to render an innocent copartner charge-
able for unusual methods of extortion.

Thus in Woodling v. Knickerbocker, 31 Minn. 268, one member
of a firm of furniture dealers put a placard upon a table in the
store, thus: " Taken back from W. Moral: Beware of deadbeats."
It was held that, there being nothing in the furniture business to
warrant one partner to bind another by uttering libel, a partner
who did not know of the act is not liable, but one who knew and
did not remove the table is liable.

In Rosenkrans v. Barker, 115 111. 331, the malicious arrest and im-
prisonment of a debtor of the firm by one partner, in absence and
without the consent or knowledge of a copartner, was held not to
make him liable, the act failing to be of any benefit to the firm. It

1 Doremus v. McCormick, 7 Gill, 49 ; Pierce v. Wood, 3 Foster (23 N. H.),
519.

485

§ 467. CONDUCT OF THE BUSINESS,

was also }ield that, even if the innocent partner subsequently ap-
prove the act, exemplary damages cannot he recovered from him.'

Nevertheless, the firm was held liable in the two following cases:

In Robinson v. Goings, 63 Miss. 500, a firm had a deed of trust
on cotton of plaintiff, grown on certain property, but owed noth-
ing to the firm, and one partner, having met a wagon containing
other cotton of plaintiffs, compelled the driver to take it to the firm's
warehouse and leave it there, saying they had a deed of trust of it,
and would hold it till hell froze over. The cotton was not that
covered by the deed of trust, and the plaintiff owed the firm noth-
ing. It was held that the partner acted as agent of the firm, and
in the prosecution of its business, and under a claim of title for the
firm, and that all the partners were liable and in punitive damages.*

In Vanderburg v. Bassett, 4 Minn. 242, property had been re-
plevied from a firm, and hence the remedy by replevin had been
exhausted; nevertheless, one partner, in the firm name, replevied the
property again; his non-resident copartner was held liable for the
conversion.

§ 467. wilful torts and yiolations of statutes. — The

scope of the business does not generally make copartners
liable by imputation for the wilful or malicious torts of
one member of the firm, but, as pointed out above, the state-
ment in the following cases, ■* that the copartners are not
liable because the tort was wilful, is inaccurate; it is because
the tort is not in the scope of employment; such as a
mahcious prosecution by one partner on a charge of steal-
ing partnership property,^ committing a libel upon a non-
paying customer; ' a wrongful ejectment by -one of a firm
of real estate agents.*

In Grund v. Van Vleek, 69 111. 478, R. & J. had been agents for
the owiier of property in renting a house. The tenant not paying,
J., on behalf of the landlord and in the absence of R.j had the ten-
ant expelled and his goods removed. This was held not to be in
the ordinary course of business, nor in the nature of a taking which
is available to the partnership, and is ratified, and R. was held not

1 And see Arbuckle v. Taylor, 3 ' Woodling v. Knickerbocker, SI
Dowl. 160. ~ Minn. 268.

2 Arbuckle v. Taylor, 3 Dowl. 160; ^And see Petrie v, Lamont, 1 Car.
Rosenkrans v. Barker, 115 111, 831. & M. 83.

486

LIABILITY FOR TORTS. § 408.

liable in trespass. It was also said that R. would not have been
liable even if he had afterwards sanctioned the act, which, however,
he had not done.

In Abraham v. Hall, 59 Ala. 386, one partner in a mercantile
house took possession of a bale of cotton on which the complainant
had a landlord's lien and marked his own initials upon it. The
mere fact of partnership does not make the copartners liable
unless the act is shown to be in the scope of the business.

In Crumiess v. Sturges, 6 Heisk. 190, the government postoffice
was kept in the store of a partnership by one of the firm's clerks
for the absent postmaster. One partner is not liable for the illegal
act of the other in using the postoffice money; nevertheless, if
clearly committed in the prosecution of the business and for its
benefit, all may be liable.

Thus in Lothrop v. Adams, 133 Mass. 471 (43 Am. Rep. 528), the
business of the firm consisted in the ownership of a newspaper, and
all were held liable for a libel published by one partner with ma-
licious intention. The test of liability for a partner's acts was
said to be, would they be liable if an agent intrusted with the man-
agement of the business had committed the tort ? And if the lia-
bility of the principal be limited to cases where he derives benefit
from the agent's act, there is a benefit in this case shared by all.'

§ 468. An act which is illegal as being contrary to a stat-
ute will not be regarded as within the scope of the business
to charge the other partner by construction merely.

Thus in Graham v. Meyer, 4 Blatchf. 129, where a statute makes
a usurious loan void, one partner took a chattel m'ortgage on a
steamboat to secure a usurious loan made by him without the co-
partner's knowledge. In an action against the partnership as for
conversion of the boat, it was held that the innocent partner would
not be held liable in tort for a violation of law without proof of
authority or ratification, and the loan will not be regarded as in the '
scope of the business.

So in Schreiber v. Sharpless, 6 Fed. Rep. 175, a qui tarn action
was brought against one partner for the act of another in permit-
ting lithographic copies of a copyrighted photograph belonging to a
third person to be printed on goods of the firm. The statute under

1 See, also, Robinson v. Goings, 63 Miss. 500.

487

§ 4G8. CONDUCT OF THE BUSINESS.

which the action "was brought being penal, the innocent partner.3
were held not liable.

If one partner is guilty of a breach of the revenue laws in
conducting the firm's business the copartners are liable for
the amount and for penalties whether they knew and con-
sented or not. The penalties in such cases are no doubt re-
garded as indemnity to the government for its trouble.*

In Stockwell v. United States, 13 Wall. 531 (aff. 3 Cliff. 284), one
partner purchased goods for the firm on which he knew the gov-
ernment had been defrauded of revenue, and the firm received the
property and had the profits of its sale. The firm was held liable
for the statutory penalty of double the value without proof of
knowledge on thepaj-t of the other partners, for the goods them-
selves became liable to seizure, and the act of the partner was an
interference with the government rights of property, and the lia-
bility is not penal, but indemnity only.'

Exemplary or punitive damages, it has been held, can be recov-
ered from the firm for the tort of one partner in a proper case; '
but as he is not a participant in' the fraud of his copartner he is
not to be subject to arrest on civil process for fraud,' nor to be
found guilty of actu.al fraud,' nor liable for penalty,^ nor subject, if
an attorney, to summary application to pay money appropriated
by his copartner, he being neither guilty nor negligent.'

'Attorney-General v. Strangforth, did not know it, but afterwards as-
Bunb. 97; Attorney-General v. Bur- sented. Exemplary damages were
ges, id. 223 ;■ Attorney-General v. allowed .sgainst Jiim. See Peckham
Weekes, id. 223; Rex v. Manning, Iron Co. v. Harper, 41 Oh. St. 100,
Comyn, 616; Stockwell v. United 109. ConlEra, see Eosenkrans r, Bar-
States, 13 Wall. 531 (aff. s. a 3 Cliff, ker, 115 III. 331.

284); United States u Thomasson, 4 <McNeely v. Haynes, 76 N. Ca.

Biss. 99 •, Graham D. Pocook, L. R. 3 122; National Bank of Commoii-

P. O. 345. wealth v. Temple, 39 Howi Pr. 432.

2 But see Rex v. Manning, Comyn, 5 Stewart v. Levy, 36 Cal. 159.
616. 6 Porter v. Vance, 14 Lea, 627, that

3 Robinson v. Goings, 63 Miss. 500 an attorney is not liable for penalty
(in full, § 466); Brewing v. Berry- and disbarment for his partner's fail-
man, 15 New Brunswick, 515; bere ure to pay over collections.

an active partner tore out inside par- T Ex parte Flood, 28 New Bruns-
titions of leased property for the wick, 86,
benefit of the firm. The copartner

488

LIABILITY FOR TORTS. § 471.

§ 469. Eatiflcation. — On the principle that a person does
not make himself liable by ratifying an illegal act of another
unles.3 the act was done on his behalf or for his benefit, if a
partner commit a tort outside the scope of the business and
of no benefit to the firm, nor on its behalf or in its interest,
his copartner's subsequent approval of it will not make him
liable. 1

In Riley v. Noyes, 45 Yt. 455, plaintiff's cow trespassed upon a
farm managed by defendant and his son in partnership. The son,
instead of taking the cow to the pound, locked her up in the barn
and refused to allow plaintiff to remove her unless he paid for the
damage she had done. It was not decided whether the defendant's
interest in the damages would have alone rendered him liable for
his partner's acts, but his assent to the detention wfis held to ren-
der him liable, because of such joint interest in the detention as a
mode of recovering the damages.

§ 470. Nominal partner.— In Stables v. Eley, 1 0. & P. 614,
a retired partner whose name remained on the wagon which was
driven over the plaintiff by an employee of the continuing part-
ner was held liable. A person is liable by holding out only upon
the ground of estoppel. It cannot be said that if the name had,
not been on the wagon the plaintiff could have avoided being run
over. The only estoppel apparent in the case is that he was in-
duced to sue the retired partner supposing him to be a member of
the firm, which is not sufScient, or upon the ground that suffering
the name to continue proves a partnership in fact and not by es-
toppel. ,

§471. Liability is joint and several. — The liability of
partners for the tort of one member of the firm or for the
lort of a servant is, as in all cases of torts, joint and sev-
eral. This is not a violation of the rule that a partner is r
the agent of all and not of each, but rests on the usual doc-
trine of torts tha,t joint principals are jointly and severally
liable for torts. Hence the action may be against all the
partners or against one, or against some of them less than
all.^

1 Wilson V. Turnraan, 6 M. & Gr. 2 Edmonson v. Davis, 4 Esp. 14;
236 ; Grund v. Van Vleck, 69 111. 478 ; Attorney-General v. Burges, Bunb.
Sosenkrans u. Barker, 115 111. 331. 333; Stockton v. Fry, 4 Gill, 406;

48S)

§ 472, CONDUCT OF THE BUSINESS.

FRAUDS AND MISREPRESENTATIONS,

§ 472. Deceit in regard to their own property. — The sub-
ject of the liabiUty of partners for the deceits, frauds or
misrepresentations of each other is separated from their
liabihty for other torts because, unhke the latter, the ha-
bihty for deceits cannot be joint and several, but joint only.
This seems apparent from the fact that the partners are
held to the truth of the appearances they have made, and
are not liable to a greater extent for the falsity than they
Would have been had the appearances been as represented.
I have no autliorities on the distinction, however.

The firm is liable for the frauds and misrepresentations of
one partner in the disposition of partnership property held
for sale, for such representations are within the apparent
scope of the business.

Thus in Chester v. Dickerson, 54 N. Y. 1; 13 Am. Rep. 550
(aff'g 52 Barb. 349), a partnership existed in the business of buy-
ing and selling lands. One partner, by pouring coal oil upon a
tract of land and passing it o£f as oil land, procured a sale. All
the partners were held liable, although the others are entirely in-
nocent.

So where commodities are agreed to be sold by the firm or by a
partner, and one partner substitutes different or inferior articles,
the firm is liable.'

In Cook V. Castner, 9 Cush: 266, 276, the partner making a sale
stated to the buyer that his copartner had told him that he (the
copartner) had examined the property and found it sound and
right, and referred the buyer to the copartner. This is a misrep-
resentation, and the rule that a person is not bound by statements
made as received from another to whom he refers does not applj-,
for if the copartner had not so informed him both are bound by

Head vi .Goodwin, 37 Me. 181; Berryman, 15 New Brunswick, 515.

McCrillis v. Hawes, 38 id. 566; Howe And so for fraud or misappropria-

V. Shaw, 56 Me. 291 ; Morgan v. tion or conversion. Sadler v. Lee, 6

Skidmore, 55 Barb. 263 ; Roberts v. Beav. 334.

Johnson, 58 N. Y. 613 ; Mode v. Pen- i Locke v. Steams, 1 Met. 560 (35

land, 93 N. Ca. 292 ; White v. Smith, Am. Dec. 382) ; Wolf v. Mills, 56 111.

12 Rich. (S. Ca.) L. 595; Wood v. 360.
Luscomb, 23 Wis. 287; Brewing v.

490

LIABILITY FOR TORTS. § 473.

his false statement, and if the copartner had made the statement
then the latter's misrepresentation hound both.

In Strang v. Bradner, 114 U. S. 555 (aff'g Bradner v. Strang,
89 N. Y. 299), plaintiifs, who had been in the habit of lending
their notes as an accommodation to the firm of S. & H., by request,
delivered to S. & H. four notes, to be used by S. & H. in their busi-
ness. Afterwards S., without H.'s knowledge, falsely represented
tJ'.at they had been unable to negotiate the notes because made
payable at the of&ce of S. & H., and requested other notes in
their place, in reliance on which plaintiffs sent other notes, and S.
procured tlie discount of them all and put the avails iuto the firm's
business. The fraud being in the course of business was held to
render the innocent partner liable.

In Thwing v. Clifford, 136 Mass. 482, a broker employed to sell
a house agreed with another broker to divide the commissions if
the latter procured a purchaser. The second broker, purporting to
represent possible purchasers, got the owner to name a price by
assuring him that no other broker had anything to do with the
trade, and a sale was effected. The innocent partner s action for
commissions prosecuted for joint benefit was held to be defeated by
the fraud.

In Hawkins v. Appleby, 2 Sandf. 421, plaintiffs sold goods to a
firm, and were induced to take the note of a third person in pay-
ment on the representation of one partner that it was good, he
knowing the maker to be insolvent. All the partners are liable in
case for deceit as well as in assumpiit for the value of the goods.'

So the representations of a partner to third persons about to
purchase notes made by the firm," as to their validity, bind the firm ;
but not if such partner did not know the inquiry was made with a
view to purchase.' So in selling notes belonging to the firm, rep-
resentations of a partner as to the maker's solvency bind the firm.^
§ 473. Other frauds. — So of other misrepresentations and
frauds in the conduct of the business of the firm, all the
partners are estopped by the false representations of a part-
-ner if they would have bound the firm if true.

' See Reynolds v. Waller, 1 Wash. ^ jn re Schuchardt, 15 Bankr.
(Va.) 164. ■ Eeg. 161.

2 French v. Rowe, 15 Iowa, 563; ^ Sweet v. Bradley, 24 Barb. 549.
McKee v. Hamilton, 33 Oh. St. 7.

491

§ 473a. CONDUCT OF THE BUSINESS.

Rapp V. Latham, 2 B. & Aid. 795, is a'leading and very severe ap-
plication of this rule. There the firm of P. & L., liquor merchants,
were employed by the plaintiff to buy and sell wine for him. P.,
the active partner, desiring to raise money, wrote to the plaintiff
that the firm had effected a purchase for him, and the plaintiff' re-
mitted the necessary money. P. afterwards wrote him that the wine
had been sold at a profit, and remitted the profits. A number of
purchases and sales were reported as made, and sums were remitted
by P. In fact, however, all the purchases and sales were fictitious,
but more money had been remitted to the plaintiff than he had ad-
vanced; yet it was held that both partners were estopped to deny
that the transactions were actual, and were held liable for the re-
ported profits in addition to the original advance.

In Coleman v. Pearce, 26 Minn. 123, C. consigned wheat to 0.
to sell on commission when ordered. 0. took in P. as a partner, and
both notified D. thereof, and accounts were rendered to him in the
firm name, showing that the property and account was transferred
to the new firm, in reliance upon which the plaintiff did not order
a sale for several months, and then learned that 0. had converted
the wheat to his own use prior to the formation of the partner-
nership. Both partners were held estopped to' deny the truth of
their false representations.

In Griswold v. Haven, 25 N. Y. 595, the managing partner of a
firm of warehousemen issued certificates showing the deposit of
grain when none had been deposited. A person who had loaned
money to a holder of one of these over-issued certificates upon its
security can hold the firm liable for conversion for refusal to de-
liver the grain, the partners being estopped to deny its existence.

§ 473a. A partner's fraud in selling an individual interest
in the partnership is not chargeable to his copartners, for it
is not an act in the conduct of the business, nor a sale of its
property, but is in the sale of the property of the individual.

} Thus in Schwabacker v. Riddle, 84 111. 517, P., a member of a
firm, persuaded R. to buy out the partners of F., agreeing that he
could buy at the invoice price, and fraudulently representing that
the invoice was $14,000, when it was in fact but 811,000. The other
partners, who were ignorant of the deceit, are not liable, for P. was
not their agent in the sale.
In Chamberlin v. Prior, 2 Keyes, 539; 1 Abb. App. Dec. 388. a

492

LIABILITY FOR TORTS. § 474.

sale of an interest in a firm was made by the ostensible partners by-
fraudulent statements. A dormant partner innocent of the fraud
was held not to be liable in damages therefor.

MISAPPLICATIONS OP MONEY OR PROPERTY.

§ 474. If the firm has charge or obtains possession of the
money or property of others, or, what is the same thing, if
property is delivered to one partner as representative of the
firm, to dispose of it in a way that is within the apparent
•scope of the business, all the partners are liable for the mis-
application or conversion of the same by one partner to
such uses as cause its loss to the owner.'

In Sadler v. Lee, 6 Beav. 32 1, stock was sent to a banking firm
to receive dividends and sell. One partner clandestinely sold it
and the firm liad credit for the proceeds. The partners were held
liable severally, and the court said would have been held though the
proceeds had not been put to the firm's credit.

In Hammond v. Heward, 11 Up. Can. C. P. 261, plaintiff made
two notes to the order of the firm of H. & G., defendants, brokers,
to get discounted for him. The defendants did not get them dis-
counted before dissolution, and after dissolution Gr. indorsed the
firm name, procured a discount of the paper and applied the pro-
ceeds to his own use. Both partners were held liable to the plaint-
iff, who had been compelled to pay the notes.'^

In Peckham Iron Co. v. Harper, 41 Oh. St. 100, one partner of a
firm employed to sell the plaintiff's iron, finding the market to be
rising,' procured a third person to purchase it for the benefit of
such partner and reported to the plaintiff that it was sold, the

1 Ex parte Biddulph, 3 De G, & iff sued H. & Q. for money had and
Sm. 587 ; Sadler v. Lee, 6 Beav. 324 ; received and for negligence in in-
Kisbet V. Patton, 4 Rawle, 120 (26 dorsing before dissolution, and were
Am. Dec. 122) ; Blair v. Bromley, 2 held not liable on either count, for
Ph. 3o4 ; 5 Hare, 542 ; St. Aubyn v. the money was not received by the
Smart, L. E. 3 Ch. App. 646; Pluraer firm but by G., holding that it was
V. Gregory, L. R. 18 Eq. 631. not negligence or breach of duty in

2 In Hammond v. Heward, 20 Up. G. to discount the notes, that being
Can. Q. B. 86, the facts are about tlie the purpose for which he held them,
same as in the foregoing case, except and for the wrong of not paying
only that the firm's indorsement was over the proceeds H. was not lia-
made before dissolution. The plaint- ble.

493

§ 475. CONDUCT OF THE BUSINESS.

other partners being innocent of the facts. All the partners were
held liable.

So in Castle v. Bullard, 23 How. 172. The firm held goods of the
plaintiff to be sold on commission. One or two of the partners
induced the plaintiff to consent to a sale of the goods to an insolv-
ent person by false and fraudulent representations as to his charac-
ter and standing. All the partners were held liable for the loss.

It was on this principle, that the series of cases arising out of the
Fauntleroy forgeries ' were decided. Fauntleroy (who was after-
wards tried and executed for one of these crimes) and others, being
trustees of stock under a will, forged the names of his co-trustees
upon the certificates to enable a banking firm in which he was a
partner to sell the stock. The bank sold the stock through a
broker, who deposited the proceeds to the credit of the bank in
another bank, which was its agent and with which its accounts of
sales of stock were kept. The proceeds of the sale were thus in the
custody of the former bank. Fauntleroy drew it out for his own
purposes, on checks made by him in the firm name. On the bank-
ruptcy of the bank the trustees were held entitled to prove the
amount against its estate as a debt. Had the money been deposited
in the names of the trustees, Fauntleroy could not have drawn it
out in his capacity of partner in the bank. The fact that the other
partners were not aware of the sale and receipt of the proceeds
makes no difference, because it is part of the ordinary business of
bankers to sell stock."

§ 475. Where the property of a person is in the custody

1 Stone V. Marsh, Ry. & Moody, placed the ruling on the ground of
364 ; 6 B. & C. 551 ; 8 Dow. & Ryl. negligence, in that the money having
71 ; Keating v. Marsh, 1 Mont. & A. come into the custody of the firm
583 ; aflf. on app. Marsh v. Keating, 1 the other partners should liave
Bing. N. C. 198; 3 CI. & Fin. 350; known of it; and not having been
Ex parte Bolland, Mont. & Mac. 315 ; placed to the account of the trustees,
1 Mont. & A. 570; Hume v. Bolland, must be taken to have remained in
Ey. & Moody, 370 ; 1 Cr. &^. 130 ; the custody of the house. Mr. Pol-
3 Tyr. 575. lock, in his admirable Digest of Law

2 This explanation of these cases, of Partnership, article 34, note, says:
that it is because the scope of the "One can hardly see what the
business included sales of stock, is knowledge or raeans of knowledge^
not original with me, but is given has to do with it, if covered by the
by Sir N. Lindley and was that given scope of the business."

in the later cases. The earlier cases

494

LIABILITY FOR TOETS. § 47G

ot a firm and the owner gives to one partner a special au-
thority to act in regard to, it, which the other partners do
not have, and such partner uses the power to appropriate
the property to his own uses, the mere fact that his mem-
bership in the firm afforded the opportunity is not sufficient
to make the partnership hable.

Ex parte. Eyre, 1 Ph. 227 (aff 'g 3 Mont. D. & DeG. 12), is the
leading case upon this subject. There a customer deposited with
his bankers a box containing certain securities, and afterwards
loaned some of the securities to one of the partners for his own pur-
poses, upon his substituting in their place other securities to secure
the replacement of those borrowed. The borrowing partner after-
wards secretly removed the substituted securities for his own pur-
poses and put in their place others of less value. The firm was held
not liable for a loss resulting from this conversion, they having re-
ceived no benefit, and the transaction having been with the partner
in his individual capacity, and the securities being in effect in his
individual custody.'

In Pierce v. Jackson, 6 Mass. 243, 245, a firm made a note pay-
able to a company, and one of the partners, forged the name of the
company upon it to give the plaintiff title to sue upon it; this fraud
was held to give the plaintiff no cause of action against the other
partner. But see the comments on this case in Locke v. Stearns, 1
Met. 564.

§ 476. If money or property is procured by a partner, os-
tensibly on behalf of the firm and within the apparent scope
of his authority, it is within the custody of the firm, and the
firm is liable for it, although he misappropriates it.

Thus, if part of 'the business of a firm is investing money for
others, and money is received to be invested in a mortgage, and one
of the partners forges a mortgage without the other's knowledge
and keeps the money, the other is liable.'' So of an attorney who
collects -money for a chent and absconds with it, his partner is
liable.'

In Alexander v. Georgia, 56 Ga. 478, a firm was selling merchan-

1 See, also, Coomer v. Bromley, 5 2 willet v. Chambers, Cowp. 814.
DeG. & Sm. 532; Bishop v. Countess SMcFarland v. Crary, 8 Cow. 253;
of Jersey, 2 Drew. 143. Dwight v. Simon, 4 La. Ann. 490.

495

§ 477, CONDUCT OF THE BUSINESS.

dise to the W. & A. R. R., the bills being paid by the state. The
active partner, by duplicate bills and bogus accounts, defrauded the
state out of a large sum ; the innocent copartner was held liable to
refund, bat contra of bills outside of and unconnected with the
partnership business; and if the paying agent of the state knew the
partner was acting in violation of his duty to the firm, the innocent
partner would not be liable. It did not appear that the money
went into the firm.'

§ 477. If money or property comes into the hands of a
•partner for pm^poses not within the scope of the business,
his misuse of it does not affect the innocent copartners.

Where a firm of solicitors are acting for an estate, and bonds
payable to bearer are deposited with one partner individually with-
out the knowledge of the copartners and he misappropriates them,
the firm is not liable.^ So where money is paid to or borrowed b}'
one of a firm of solicitors, to be invested in mortgages, and is mis-
applied by him, the firm is not liable, without evidence that the
scope of the business included investing.'

The facts that letters referring to the matter are copied into the
firm's letter-book and included in the firm's statement of account
to the estate, and that the partner paid some of the interest by
drawing a firm check, but on each occasion repaid the amount to
the firm by his private check, were held to be too ambiguous to
affect the other partners with acquiescence in such partner's custody
being the firm's business.*

In Bounce v. Parsons, 45 N. Y. 180, M., H. & Co. dissolved by
the retirement of one partner and the coming in of a new member,
the new firm using the same name as the old. B., one of the orig-
inal and continuing partners, informed plaintiff that the debts of
the old firm could be bought at a discount, and plaintiff advanced
him money to buy them up. B. then drew up notes in the firm
name, dated back, and gave them to plaintiff as being the debts of
the old firm. B. placed the money of plaintiff thus obtained in the
new firm and got credit for it on their books, and used it to pay the

1 See, also, Royer v. Aydelotte, 1 3 Harman v. Johnson, 2 El. & Bl.
Cint. Superior Ct. Rep. 80, cited 61 ; Plumer v. Gregory, L. R. 18 Eq.
under §480. 631.

2 Cleather v. Twisden, 24 Ch. D, ^ Cleather v. Twisden, supra.
731 ; 28 id. 340.

496

LIABILITY FOR TORTS. § 478.

debts of the old firm. His partners knew nothing of the arrange-
ment or the deception, and the new firm was held liable to plaintiff.
There was either a loan to B., outside of the firm's business, or B.
was trustee of the money and put it into the new firm as his own.
The fraud was not in the procuring of the money, but in the means
used to conceal its misappropriation.

In Adams v. Sturges, 55 111. 468, the owner of shares of stock
gave a power of attorney for their sale to a person who then trans-
ferred them to his firm, and then in the firm's name transferred
them and took them back himself; the copartners, knowing nothing
of the matter, are not liable for the conversion.

In Toof V. Duncan, 45 Miss. 48, F., a member of a cotton ship-
ping firm, being sent out on a trading expedition for the firm, was
asked by one D. to collect a draft for him, which he drew payable
to F. F. indorsed the draft to the firm, requesting to have it put
to his credit. The firm collected the draft, and F. withdrew the
amount and did not pay it over t6 D. The partners are not liable
to D., though had the draft been payable to the firm it would have
been otherwise.

In Linn v. Ross, 16 N. J. L. 55, R., being indebted to the firm, of
L. & H., handed a note owned by him to L. to collect for him; and
either hand him the proceeds or apply it on the debt. L. did. not
account for the proceeds, and it was held that the firm was not
liable.

MONEY OR PROPERTY WRONGFULLY OBTAINED BY ONE PART-
NER FOR THE FIRM.

§ 478. A firm has frequently been held liable for the torts
or frauds of a partner, of which it received the benefit, not
committed in transacting the business of the firm or within
the apparent scope of his agency. As where a partner ob-
tains money by crime or fraud, or converts property and
uses the fund for the firm, either by direct contribution or
paying its debts, where it is manifestly just that the de-
frauded person should be deemed a creditor of the firm,
and not merely of the guilty partner. Liability in such
cases has been sometimes put upon the ground of an im-
plied ratification, arising from receiving a benefit. But this
ground is not the true one. Ratification never takes place
Vol, 1 — 33 497

§ 479. CONDUCT OF THE BUSINESS.

■without knowledge, and we have already seen that, in cases
of contract, a partnership never becomes debtor by receiving
the benefit of a transaction made on the credit of an indi-
vidual partner.

In the case of money which has no ear-marks, and to which,
therefore, the wrongful holder cap. pass a good title, yet the wrong-
ful holder himself cannot he said to have title, and perhaps a gra-
tuitous transferee would have no better right to retain the benefit
of it. Where, therefore, a partner wrongfully obtains money for
the firm, the innocent partners are obviously not liable ex ddicto,
but the firm is chargeable for money had and received.

In the case of property tortiously obtained for the firm by one
partner, without complicity on the part of his copartner, if no title
has passed, the firm may be liable for a conversion; and if used by
such partner for the firm, or if obtained under such circumstances
that the partner could have invested a bona fide buyer with title,
yet the firm does not stand in the relation of a purchaser for value,
and the right of the original owner to rescind and demand back his
property must be deemed still available to him. It seems to me that
the above is the true explanation of the decisions and dicta following.

§ 479. In the case of money so obtained, a distinction must be
made between a conversion for the firm and a conversion by a part-
ner, and a subsequent application of the money to the use of the
firm. There is certainly a difference between the case of stealing
money or raising it on forged paper for a firm, and a case of so ob-
' taiuing money and afterwards forming a partnership, contributing
such money as capital. Yet in the latter case, had goods been so
obtained and contributed, the owner could hold all the partners
for a conversion, if they refused to deliver.

Thus, in Rapp v. Latham, 2 B. & Aid. 795, the money was pro-
cured by the false pretenses of one partner, and used for the firm;
the firm was held liable for money received for its use.

In Manufacturers' & Mecb. Bank v. Gore, 15 Mass. 75 (8 Am.
Dec. 83), a partner obtained money on a note signed in the firm
name, upon which the name of a third person as indorser was
forged, and the proceeds went to the use of the firm. ' The lender can
immediately, without awaiting the maturity of the note, sue both
partners for money had •. and received, lent, etc., although one was
innocent.

498

LIABILITY FOR TORTS. § 480.

In Wallace v. James, 5 Grant's Ch. (Tip. Can.) 163, a person pro-
cured money from plaintiff by selling forged paper to him, and
put the money into his partnership. The guilty partner absconded,
and the other partner assigned for benefit of creditors. The plaintiff
has a right to be paid out of the partnership assets.

§ 4-80. So in the case of goods obtained by fraud, no title
in them vests in the firm, as where a partner orders goods
with a preconceived design to raise money upon them and
absconds.

Thns, in Kilby v. Wilson, Ryan & Moo. 178, plaintiffs as brolcers
purchased cottons for T. & Co., and paid for them with the check
of T. & Co., received by them from T., and delivered to T. the v?ar-
rants for the cotton, which T. then deposited as security with the
defendants, and absconded, and the check was dishonored, and T.
& Co. became bankrupt. In trover for the cottons. Lord Tenter-
den instructed the jury that, if T. procured the cottons with a pre-
conceived design of not paying for them, plaintiffs could recover,
but not if the design to defraud was formed, after he had got pos-
session.'

Where a partner 'wrongfully took the property of a. third person
and put it into the assets of the firm, thereby increasing them,
the firm was held liable.'' So if procured by fraud.^

In Miller v. Manice, 6 Hill, 114, 123-4, Walworth, J.: If one
partner procures from a third person his note by falsely represent-
ing that he can obtain money for him, and then appropriates the
note, he alone is liable for the conversion or in assumpsit waiving
the tort. But if he applies the proceeds of the note to the benefit
of his firm, as by paying a partnership, debt, all the partners may
be held liable or the tort-feasor alone.

In Royer v. Aydelotte, 1 Cint. Superior Ct. Rep. 80, P., owning
a government voucher for $1,440, transferred it to A., the plaintiff,
in payment of a, debt she owed him. P. was also indebted to the

1 Stewart v. Levy, 36 Cal. 159, was would have been liable to imprison-
also an action arising outof th6 pur- ment under a statute,
chase of a partner with the inten- 2 Durant v. Rogers, 87 111^ 508 ;
tion of riot paying ;' but the action Royer v. Aydelotte, 1 Cint. Superior
was for the deceit, and the guilty. Ct. Rep. 80.

partner alone was held liable in s Blight v. Tobin, 7 Monroe, 612 (18
tort, otherwise the innocent partner Am. Dec. 219); Olmsted v. Hotail-

ing, 1 Hill, 317.
499

§ 481. CONDUCT OF THE BUSINESS.

■firm of R., C. & T., and C, by fraudulent representations, induced
A. to let him hold it. C. collected tlie voucher, paid the debt dut
from P. to the firm with the proceeds and gave the balance to P.,
who was insolvent, and thus A. lost it all. R. and T. were held
liable for the full amount, and not merely for what they got. The
court place the liability of the defendants on the ground that C.
committed the tort in the course of the business, which is hardlj
tenable.

Receiving a benefit from the fraud of a partner was also men-
tioned as a reason for holding the firm, including the innocent
partners, liable in the following cases.'

TRUST FUNDS USED FOK FIRM.

§ 481. Innocent partners not liable. — If a partner has
possession of the funds of others in trust, as where he is an
executor, guardian, trustee, and the like, and improperly
uses the trust funds for the benefit of the firm, the nature
of the copartners' liability depends on whether they par-
ticipated in the breach of trust.

If the trustee, without his ,copartner.=! knowing that -the_ money
is held in trust, uses it to pay debts of the firm,'' or applies it to
other partnership uses,' or lends it to the firm," or puts it in as
capital,' the cestui que trust does not become a creditor of the
firm, and can neither maintain an action against them or prove
against the joint estate in bankruptcy. The transaction is regarded
merely as an advq,nce by the guilty partner to his firm. On the
other hand, had the use of the money for the firm by the trustee
been with the permission of the cestui, it would have been a loan
by him to the firm and he would have had the rights of a creditor.'

1 Sadler v. Lee, 6 Beav. 334; De- ^ As in Ex parte Apsey, 3 Bro.C.C.
vaynes v. Noble, Clayton's Case, 1 265; E'a;j3aHe White.L. R. 6Ch. 397.
Mer. 575; Devaynes v. Noble, Bar- ^Ex parte Heaton, Buck, 886;
ing's Case, 1 Mer. 611 ; Castle v. Bui- Jaques v. Marquand, 6 Cow. 497; 8,
lard, 23 How. 173, 189; Strang v. Wend. 490; Tallmadge I).. Penoyer,'
Bradner, 114 U. S. 555; Gray v. 35 Barb. 120 ; Wlllett v. Sti-inger, 17
Cropper, 1 Allen, 837; Doremus'i;. Abb. Pr. 153.
McCormick, 7 Gill, 49; Fripp v. *Evans u Bidleman, 3 Cal. 435.
Williams, 14 S. Ca. 5C3; Gerhardt v. » Harper v. Lamping, 83 Cal. 641.
Swaty, 57 Wis. 1^4; Re Ketchum, 1 eWhitaker v. BrowH, 16 Wend.
Fed. Rep. 815. 505 (overrules s. o. 11 id. 75).

600

> LIABILITY FOR TORTS. § 483.

These principles and authorities show that this liability of the
partners is not a proper partnership liability, for those partners
alone who were cognizant of the misapplication of the trust are
chargeable, and hence the ground of liability is that they are joint
wrong-doers, and not that they are partners."

The knowledge of the guilty partner is not the knowledge of
the firm, because it is outside of the firm's business. Nor will the
fact that one of the other partners knew and agreed to the im-
proper application of the fund make the firm liable.'

In Davis v. Gelhaus, 44 Oh. St. 69,' a public officer put public
moneys into the firm, with his partner's knowledge, and both
were held liable, although on dissolution the officer took all the
assets, and agreed to pay all the debts, and, having paid back the
monej"-, it was held that he could not enforce contribution from his
copartner, the misappropriation being criminal by statute.

§482. Incoming partners. — Where the misuse of the
funds has taken place before the admission of a partner into
the firm, he would not be liable, because not a participator
in the misuse.* .

Where the new firm has agreed to be liable for all debts for
goods, this was held to include a claim for public, money applied to
paj'for the goods by the partner while county treasurer.'' And if,
on the formation of the firm, one partner contributes trust property
as his agreed share of the capital, without notice of the trust t6 his
copartners, they are not debtors to the cestui, nor can Jie follow
the funds or claim more from the firm than the trustee could have
done.'' But if, on the formation of the firm, one partner's capital
was composed of trust funds, and the other knew this, both are
liable.' And if the copartner knew the fund belonged to another,
although he supposed that the owner had loaned it to the partner
to enable him to make his contribution, it is a partnership debt.'

§ 483. Participants all liable. — But if the other partners
have knowledge of the nature of the funds at the time of

lAnd per Lord Cairns, Vj'se v. * Hollembaek u. More, 44 N. Y. Su-

Foster, L. R. 7 H. L. 318, 334. peiior Ct. 107.

2 Evans v. Bidleman, 3 Cal. 435. * See« Emerson u. Durand, 64 Wis.
And see Ex parte Heaton, Buck, 386. Ill, 116.

3 Twyford v. Trail, 7 Sira. 98. ' Houser v. Riley, 45 Ga. 126.
* Hutchinson v. Smith, 7 Paige, 26.

501

§ 484. CONDUCT OF THE BUSINESS.

such misappropriation, they are imphcated in the breach of
trust, and become themselves, at the election of the cestui
que trust, his debtors, or even trustees of the fund, as having
connived at the violation.'

And if the copartners know the fund belongs to an estate, the.y
are bound to inquire on what trusts it is held, and knowledge of
the powers of the trustee partner is imputed to them, whether
they had actual notice or not.''

In Price v. Mulford, 36 Hun, 247, a partner holding a trust fund
took an asset of the firm, being a certificate of indebtedness duq
from a third person, and reported that he had invested the trust
money in it, and reimbursed the firm by canceling a balance due
to himself from it. Here the firm were held to become trustees,
and both partners liable to the cestui' que trust, although the firm
received no benefit from the transaction.'

And if the copartners were innocent of the violation of the trust,
and the guilty partner subsequently gives the note of the firm to
the owner of the fund for the amount, the firm has been held liable
upon the note.*

§ 484. The liability is a joint and several one," and the succeed-
ing representative of the trust can sue the firm as for a debt,' and

1 Travis v. Milne, 9 Hare, 141 ; In re that the knowledge of the copartners
Jordan, 2 Fed. Rep. 3i9; Trull v. is unimportant, if the partnership re-
Trull, 13 Allen, 407 ; Colt w. Lasnier, ceived the beneiit, and the firm is
9 Con'. 320 ; Hutchinson v. Smith, 7 liable to the owner of money held by
Paige, 26; Price v. Mulford, 36 Hun, one partner as his agent, if it was ap-
247; Stoddard v. Smith, 11 Oh. St. plied to the business of the firm.
581 ; Davis v. Gelhaus, 44 id. 69 ; Emer- Welker <v. Wallace, 31 Ga. 363 ; Pal-
son u Durand, 64 Wis. Ill, 116. Even mer v. Scott, 68 Ala. 380. Contra,
if he be a limited partner, who takes after dissolution, when there is no
no part in the management of the power to create new liabilities. Dun-
business. Guillou V. Peterson, 89 lap v. Limes, 49 Iowa, 177.

Pa. St. 168 (rev. s. C. 9 Phila. 225). * Palmer v. Scott, 68 Ala. 380 ;

But see comments on the case in Richardson v. French, 4 Met. 577,

Bates on Limited Partnership, p. 82. where the note was made to a cred-

2 Travis v. Milne, 9. Hare, 141. And itor of the cestui by agreement.

see Houser v. Riley, 45 Ga. 126. Or 6 Flockton v. Bunning, L. R. 8 Ch.
even, it has been said. If by reasona- App. 223 ; In re Jordan, 3 Fed. Rep.
iile inquiry he could have ascertained 319.

the source of the funds. In re ^ In re Jordan, 3 Fed. Rep. 319
Ketchum, 1 Fed. Rep. 815. '(dictum); Bush v. Bush, 33 Kan,

3 Some cases, however, have ruled 556.

502

LIABILITY FOR TORTS. § 485.

prove in bankruptcy against the joint estate of tlie firm, and tlie ,
separate estate of the trustee partner.'

A partner in a banking firm deposited money in the bank as
executor of an estate. In his capacity of executor he is a creditor of
the firm.'^ And if he takes as security from his Erm a note and mort-
gage payable to his cestui, the delivery to him, although he is one
of the makers and grantors, -is good, he having control of the cestui' s
property, for he receives it as representative.^

§ 485. Accountalbility is for profits or interest. — The rule
where a trustee employs the trust funds in trade or specu-
lation, that he must account for profits or interest at the
cestui'' s election, applies where he has engaged the funds in
a firm of which he is partner.*

And although a mere- borrower of trust money is not lia-
ble for profits made by its use, yet the trustee, who is also a
partner, is liable for them. The amount of profits will be
the proper share of the trustee. There is great force in the
argument that he should account for all the profits which
the fund has earned, although he was compelled to allow his
copartners to participate in them, but the law is as above
stated.^

In Seguin's Appeal, 103 Pa. St. 139, a guardian put his ward's
money into his firm with the knowledge of his copartner. The
ward having declined to elect between interest , and profits, it was
held not error for the court to elect for her. The profits she is en-
titled to is what was earned by her capital excluding those attrib-
utable to her trustee's skill, industry and labor in conducting the
business. Thus she may be awarded a proportion of the gross
profits in the ratio of her capital, less proper allowances for carry-
ing on the business, not exceeding what would have been paid to

1 In re Jordan, 3 Fed. Rep. 319. 5 Vyse v. Foster, L. R. 7 H. L. 318,

^McCracken v. Milhous, 7 111. App. and 8 Ch. 309; Laird v. Chisholm, 30

169. Scottish Jurist, 583; Jones v. Foxall,

3 Tucker v. Bradley, 33 Vt. 334. 15 Beav. 388, 895 ; Palmer v. Mitoli-

■iThe cases where the trust fund ell, 3 M. & K. 673; Seguin's Appeal,

was already in the firm, or is put in 103 Pa. St. 139 ; Long v. Majestre, 1

as part of the capital, are elsewhere Johns. Ch. 305.

considered. See AccouNTiNa.

503

§ 487. CONDUCT OF THE BUSINESS.

hire the same number of persons as the number of partners to do
what they did.'

§ 486. Following the fund. — The doctrine that trust funds
can be followed into whatever investments they are placed,
where the claim of bona fide buyer cannot be interposed,
applies.

Thus in Vanderwyck v. Summer!, 2 Wash. C. C. 41, a claim be-
longing in part to A. and part to B., having been decided in their
favor, the proceeds were remitted to the firm of A. & C, to be cred-
ited to A., who was indebted to the firm, but C. knew that B. had
an interest in it. B. can recover his proportion from the firm.

So in Carter v. Lipsey, 70 Ga. 417, a guardian loaned the trust
funds to his firm, and died. His surviving partner, with knowledge
of the nature of the claim, assigned for benefit of creditors. It was
held that the cestuiconW- compel repayment by the assignee in pref-
erence to creditors, because he took only the surviving partner's
title, and the survivor could not change the nature of the claim.

In Stoddard v. Smith, 11 Oh. St. 581, United States land scrip
certificates, issued to one in trust for named and unnamed heirs,
were used by him and his partners in payment for lands, the named
heirs consenting, and the title was taken in the name of another
partner. The lands were held chargeable with the trust in favor of
the unnamed heirs, notice of the trust appearing on the face of the
certificates.

Somewhat similar is Wallace v. James, 5 Glrant's Ch. (Up. Can.)
163, where a person procured money from plaintiff by selling forged
paper to him, and put the money into his firm; he then absconded •
and the other partner assigned for benefit of creditors. It was
held that plaintiff was entitled to be paid out of the assets.

Where an officer of a bank lends its funds to his firm without
sufficient security and they become mingled with other partnership
property they cannot be followed.'

§ 487. Eepayment to the trustee. — Where an executor
loaned the trust funds to his firm, the other partners know-
ing the nature of the funds, repayment to him will exoner-

1 As to accounting for interest, see 2 Case v. Beauregard, 1 Woods, C.
§ 787. C. 125. (99 U. S. 119.)

601

LIABILITY FOR TORTS. ' g 488.

ate them, if he has power to I'eceive the amount and release
the claim. In fact they have no other way of discharging
the debt.i

As a factor cannot sell his principal's goods to a firm of which he
is a member, the firm having received and sold the goods will prima
facie be deemed to have the proceeds for the owner; and in such
case it has said to be doubtful whether they could be exonerated by
accounting to the factor.''

But merely turning over to the trustee partner the assets upon
dissolution of the firm, and his agreeing to pay the debts, is not
such payment as will exonerate the retiring partner.'

CRIMES.*

§ 488. A partner is not liable to conviction by the state
for the crimes of his partner unless he has participated ,
in them, else a good man might be liable for a bad one.
Assent or participation is necessary; mutual agency to vio-
late penal laws not being implied.' Sometimes, however,
the contrary is enacted by statute in cases of illegal sale of
intoxicating liquor.*

An of&cer of a national bank who allows his firm to overdraw
with intent to defraud the bank is guilty of a misapplication of its
money under the Revised Statutes of United States, § 5209.'

A partnership cannot be indicted in the firm name ; the individual
members alone can be indicted and convicted.' They may be jointly
indicted if their act is joint, as where they made and signed a false

1 Sherburue v. Goodwin, 44 N. H. the property of the firm, see § 377.

271, holding that payments to him estate?;. Coleman, Dudley (S. Ca.),

from time to time, not stating? in L. 32; State v. Bierman, 1 Strob. L.

what account, and charged to his 256; Acree v. Commonwealth, 13

private account, could, on subse- Bush, 353.

quent adjustment,' be debited to him •> Whitton v. State, 37 Miss. 379 ;

as executor. State v. Neal, 27 N. H. 131.

ZMartinu Moulton, 8N.-H. 504. 'United States v. Fish, 24 Fed.

3 Smith V. Jameson, 5 T. R. 601 ; Rep. 585.

. Dickenson v. Lockyer, 4 Ves. 36 ; 8 Peterson v. State, 32 Tex. 477 ;

Davis V. Gelhaus, 44 Oh. St. 69. Allen v. State, 84 id. 230.

* For crimes by one partner against '

505

§ 488. CONDUCT OF THE BUSINESS.

return to tlie assessor of internal revenue; ' or if they sold liquors
without a license as a firm.'''

In an indictment for obtaining goods by false pretenses from a
firm, the ownership of the goods may be averred to be in the firm
and the misrepresentations made to the former in the firm name;"
and so of embezzling partnership money."

An indictment for forgery upon several persons who are partners
need not allege the partnership name.' And an intent to defraud a
firm being an intent to defraud each of its members, an indictment
for uttering a counterfeit with intent to defraud A. is sustained
by proof of intent to defraud the firm of A. & B.'

> United States v. McGinnis, 1 Abb. * State v. Mohr, 68 Mo. 303.
D. S. 120. sDurbam V. People, 5 111. 172.

! Lemons v. State, 50 Ala. 130. « Stoughton v. State, 2 Oh. St. 562.

» State V. Williams, 103 Ind. 235.

506

CHAPTER XI.

PAYMENT, NOVATION AND MEEGEE.
APPLICATION OP PAYMENTS.

■§ 489. The general rules for the application of payments
by a person who owes several debts to the same creditor, and
pays money on account, are:

I. The debtor may require the appropriation to be made
upon any of the debts which it will pay in full, provided he
exercises the right at the time of payment.

He need not, however, expressly declare such intent. It is suf-
ficient if the intent can be gathered from circumstances.'

Thus if a partner pays money with instructions to credit it upon
his individual debt, it cannot be credited upon a debt due from his
firm, unless it is partnership money thus used.^

If a person is indebted on several accounts to a firm, an agree-
ment with one partner as to which account an intended payment
should be applied is admissible to show the intention of a subse-
quent general payment by him to the firm's book-keeper.'

II. If the debtor has not signified the appropriation, the
creditor may apply the money as he chooses; but after he
has done so, and notified the debtor of it, he cannot change
the appropriation.

The creditor need not make the appropriation immediately. He
has at least a reasonable time in which to do it before a contro-
versy has begun.*

1 See Shaw v. Picton, 4 B. & C. 3 Wittkowsky v. Eeid, 83 N. Ca.
715; Waters u Tompkins, 2 C. M. & 116.

R. 733; Peters v. Anderson, 5 Taunt". ^Faircliild v. Holly, 10 Conn. 175,

596; Wittkowsky v. Eeid, 83 N. Ca. 184; Philpott v. Jones, 3 A. & E. 41 ,

116; Lysaght v. Davern, 5 Bli. N. R. Mills v. Fowkes, 5 Bing. N. C. 455;

1 ; City Discount Co, v. McLean, L. Simson v. Ingham, 3 B. & C. 65 ;

R. 9 C. P. 693. Alexandria, Mayor of, v. Patten, 4

2 Bray v. Grain, 59 Tex. 649; Miles Craneli, 317, 330.
V. Ogden, 54 Wis. 578.

507

§ 490. CONDUCT OF THE BUSINESS.

The creditor who has entered the payments in his private books
to one account may even subsequently change them to another ac-
count, if the debtor has not been informed of the original application
of them, for the uncemmunicated entries are not conclusive upon the '
creditor.' But after he has notified the debtor he cannot alter the
appropriation.' If the creditor is an executor of an estate which
is surety for the debtor, he cannot, even with the debtor's consent,
change an appropriation once made so as to revive a lapsed liabil-
ity of the estate.'

§ 490. Where firm and one partner are creditors. — Whei'e
the firm and one partner are creditors of the same person,
and a payment is made by him to the creditor partner,* it
has been suggested that the duty to observe good faith will
require him to apply it to the partnership debt.* This is no
doubt true, if the payment is made in the firm's place of
business, or in the course of a partnership dealing, or where
the partner is treated or is acting in his capacity as partner.
But where the payment is entirely outside of the firm's in-
terests, for example, where the debtor addresses a check to
the partner individually, no reason is perceived for such
stringency; a partner scarcely owes a greater duty to the
firm than to himself, and this is not competing with it.*

Where the creditor partner assigns his claim to the firm, pay-
ments by the debtor generally may be applied on either account.'

In Simson v. Ingham, 2 B. & C. 65, the creditor entered the
payments in his private book to one account, and subsequently,

1 Simson v. Ingham, noticed infra, of A. & B. As agent of A. & B., he

§ 501. And see Field v. Carr, 5 Bing. sent a bill of exchange which be-

13, where this was attempted .after longed to D. to Philadelphia, and in-

three years. structed the recipient to pass the

^Hooper 17. Keay, 1 Q. B. D. 178; proceeds to B.'s account, which was

Dorsey w. Wayman, 6 Gill, 59; Sey- done; yet the payment on B.'s ac-

Jmour V. Marvin, 11 Barb. 80. count was held to be a receipt of the

3 Merriman v. Ward, 1 J. & H. money by A. & B. to the use of D. ,

371. and both are liable to D. for it.

* Lindley, Part. p. 43'<J. 6 A dictum in Codman v. Arm-

6 See cases under § 413. And pos- strong, 28 Me. 91, would seem- to
sibly this proposition was involved permit an application of such pay-
in Wilkins v. Boyce, 3 Watts, 39. ment to the individual debt.
There C. owed B., and also -the firm ' Badger v. Daenieke, 56 Wis. 678.

508

PAYMENT, NOVATION AND MERGER. § 491.

changed them to another account. It was held that the entries
were not conclusive upon him until he had communicated the fact
to the debtor.

Where a partner shipped lumber of the firm, and also some of
his own to one E., to sell, without notifying E. of the different
ownerships, in consequence of which E. kept no separate accounts
of the lots, here the last amount paid by B. to such partner will be
considered as the avails of the partnership lumber, but here the
presumption was raised against the partner because of his negli-
gence.'

Where the partners by arrangement with the creditor divide the
debt, each assuming half, each is entitled to have subsequent pay-
ments made with partnership assets credited equally to each, for
one partner alone has no right to dictate the entire appropriation,
and such would be the presumed intention of the debtors."

§491. Firm and one partner as debtors. — Thus, if the
firm and also one pai-tner are debtors of a person, a pay-
■ ment generally by the debtor partnei- may be applied by the
creditor to either debt.' And if, after dissolution, one part-
ner continues to deal with a creditor of the firm and makes
payments generally, the creditor may apply them to the
individual debt.''

Where two firms, in both of which one B. was a partner, owe
the same creditor, and B. in part payment gives his individual
notes to the creditor, if the creditor proves the note against B.'s
administrator, disclaiming any particular application, he does not
waive his claim against either firm.'

*

1 Russell V. Green, lU Conn. 369. 3 Brown v. Brabham, 3 Oh. 375 ;

2 Moore v. Riddell, 11 Grant's Ch. Logan v. Mason, 6 W. & S. 9. And
Up. Can. 69, where one partner gave see cases under § 314. If these '
their creditor a mortgage on his were partnership funds the payment
separate property for half the debt, would undoubtedly be controlled by
and the other gave an indorsed note the rule in § 494.

for the other half. Subsequent pay- .^Sneed u Weister, 3 A. K. Mar.

ments out of the Arm's assets were (Ky.) 377; Fitch v. McCrimmoij, 30

applied by the creditor upon the note. Up. Can. C. P. 183 ; Simson v. Ing-

but it was held that the mortgagor ham, § 501, iw/ra.

was entitled to have half of them SYoumans v. Heartt, 34 Mich,

credited upon his mortgage. 397.

509

§ 494. CONDUCT OF THE BUSINESS.

§ 493., Partnership money to be applied to partnership
debts. — III. It is a general rule that if a person owes
debts in two capacities and makes a payment the credit will
be upon the debt in the capacity in which the money is held.
Where a payment is made by a partner to one who is cred-
itor both of himself and of the firm, if the payment is made
with partnership funds it must be credited to the partner-
ship debt. If the creditor knew of the nature of the fund
the rule is imperative and controls Kules I and II above,
for otherwise the creditor would be participant in a fraiid-
ulent use of the funds of the firm.

Thus, S., being indebted to C, took in F. as a partner, S. be-
ing the managing partner. C. then sold goods to the firm, and S.
made payments to C. upon his individual account in checks signed
in the firm name. In an action by C. against the firm it was held
that these payments must be credited upon the firm's debt; that C.
was put upon inquiry by the signature of the checks.'

So, where one who is surety both for a firm and one partner re-
ceives partnership funds and applies them to the individual debt, and
afterwards pays the partnership debt with his own money, his rights
are the same as if he had paid the latter debt with the firm's money.'

§494. if creditor has no notice of nature of the

fund. — The rule is doubtless the same when the creditor is
not aware of the nature of the fund and attempts to appro-
priate it to the individual debt of the partner from whom
he received it. We shall hereafter see that an unauthor-
ized application of partnership property to pay a separate
debt is held in not a few cases to give the creditor no right
to hold the property as against the firm, irrespective of his
knowledge of the fraud. These cases are all authorities to
sustain the above proposition, which, however, may be true
without relying upon them, since the court can rectify the
fraud without material injury to the creditor by applying
the fund to the joint debt.

1 Cornells v. Stanhope, 14 R. I. 97 ; case is modified in other respects by
Davis V. Smith, 37 Minn. 390 (this S. 0. 39 id. 301).

2 Downing v. Linville, 3 Bush, 473.
510

PAYMENT, NOVATION AND MERGER. § 495.

In Thompson v. Brown, 1 Mood. & Malk. 40, Brown was in-
debted to the plaintiffs and took Weston into partnership. The
plaintiffs continued to furnish goods to the firm. Brown paid the
plaintiff on general account a check of £60. The firm was after-
wards dissolved. Brown became insolvent, and the plaintiffs sued to
recover their claim, claiming that they had a right to apply the
check to the oldest item of the account; but Abbot, C. J., rule
that if the money paid be the money of the partners the creditor
not at liberty to apply it to the payment of the debt of the in-
dividual, and left it to the jury to say whose property the check
was, and the jury found for the defendants.

So in Wiesenfeld «7. Byrd, 17 S. Ca. 106, where a surviving part-
ner made payments generally from partnership funds, the creditor
must apply them to the partnership debt and not to the surviving
partner's individual debt.'

So in St. Louis Type Foundry Co. v. Wisdom, 4 Lea, 695, where
successive firms of the same name, but in part of different mem-
bers, had a running account with a creditor, payments made during
the last firm must be credited to the account of the firm whose
funds are thus used.

In Fitch V. McCrimmon, 30 Up. Can. C. P. 183, however, C. & L.,
partners, dissolved, L. agreeing to pay the debts, and C, to whom
the firm was indebted, taking the assets and continuing the busi-
ness. C. made purchases on his own account from a creditor of
the firm, and payments by him, it was held, could be credited upon
his individual account, although with money derived from the sales
of the partnership goods. L., howevfer, assented.

§ 495. individual money. — In the case of individual

money it is a little different. No doubt a payment by a
partner is presumptively on private account.^

• See, also, McClean v. Miller, 2 ally and as executor. Goddard v.

Cranch, C C. 620. Cox, 2 Stra. 1194; Sawyer v. Tappan,

2 So held in Gass v. Stinson, 3 14 N. H. 852; Fowke v. Bowie, 4

Sumn. 98, 109. And see Sneed v. Harr. &. J. 566. See Scott v. Ray,

Wiester, 3 A. K. Mar. 277 ; Baker v. 18 Pick. 360, where a payment to an

Stackpoole, 9 Cow. 420 (18 Am. Dec. assignee for creditors, who was also

008). Such would be the rule as to a himself a cre(^itor, was ordered cred-

payment by one who owes individu- ited on both accounts equally,

511

§ 497. CONDUCT OF THE BUSINESS.

But even then it would not be applied to such individual debts
as were afterwards created.'

Where a partner gives security to pay both debts, its proceeds
have been held first applicable to discharge his individual items.'

In Johnson v. Boone, 2 Harr. (Del.) 172, it was held that as a
payment generally, if of partnership money, must be applied to
the joint debt, so, vice versa, if out of individual money it must be
applied on the individual debt, unless the debtor's assent to the con-
trary application is shown. This, however, is not consistent with
the cases under § 491.

§ 496. If neither party specify appropriation. — IV. In the

absence of intention appearing from the acts of the parties,
the law will presume an intention to appropriate as follows:

1. To pay interest befoi'e principal.

2. To pay an unsecured debt before a secured debt, unless
the security be a third person or his property;' but money
reahzed from a security, will be applied to the debt it
secures.''

3. To pay legal and not illegal items."

4. To pay matured as against unmatured debts.'

5. To pay the earlier items of an entire account in prefer-
ence to the later.

§ 497. Running account. — The rule applying general pay-
ments to the earliest items of an entire account, or, as
otherwise expressed, the presumed intent that the first
credit item shall go to discharge the first debit item, raises
the very important question in partnership matters, what
constitutes a running account in case of dissolution when
the business is continued?

The various cases under the head of Devaynes v. Noble, 1
Mer. 529 (aff 'd 2 R. & M. 4d5), are loading cases on this sub-

1 Baker V. Staokpoole, supra; Miles ^ Sanders v. Knox, 57 Ala. 80;
V. Ogden, 54 Wis. 573. Jones v. Benedict, 83 N. Y. 79.

2 Lee V. Fontaine, 10 Ala. 755 (44 * Dunbar v. Garrity, 58 N. H. 575.
Am. Dec. 505). ^ Eichardson v. Coddington, 49

3 Garrett's Appeal, 100 Pa. St. 597; Mich. 1,
The Schooner Steelman, 5 Hughes,

O. C. 210.

613

PAYMENT, NOVATION AND MERGER §497.

ject. There were five partners in the banking business; one,
Devaynes, died, and the surviving partners continued busi-
ness in the old name, without opening new books or making
a rest in the accounts. On becoming- bankrupt, those, who
had been customers, both of the old and new firm, claimed
the right to resort to Devaynes' estate for the balances on
their running accounts. These creditors were divided into
classes. In Sleech's Case, Miss Sleech had continued to deal
with the new firm, by drawing out and not depositing. No
appropriation of these payments having been made at the
time, it was held to be too late then to make them, and they
were applied to extinguish the balance as it stood at De-
vaynes' death, and his estate was held to be subject to the
residue. In Clayton's Case, which represented the class of
creditors whose continued dealings consisted both in draw-
ing out and paying in, the balances constantly fluctuating,
but on the whole being increased, no specific appropria-
tion of payments having been made, it was held that the
payments made not only before further deposits must be
credited, as in Sleech's Case, on the old balance,- but that
the payments made after additional deposits were also to
be credited to the oldest items, and as they exceeded the old
balance, Devaynes' estate was wholly discharged.

Under the same principle, where, on the death of a person, his
account with a creditor wasbalanced, and formed the first item of
the new account with his widow, who continued the business, pay^
ments by her go to discharge the estate of the decedent.' So
where a partner retires, and another partner continues the busi-
ness, making purchases from an old creditor, the accounts being
blended in an unbroken series, payments may be credited on the
firm's debt." So if a continuing partner assumed the old debts.' So
in case of a dormant partner, the dealings being continued after
his retirement as an unbroken account, payments will be applied

iSterndale v. Hankinson, 1 Sim. Cush. 323; Birkett v. McGuire, 31

393. ' Up. Can. C. P. 430 ; Fitch v. McCrim-

2 Smith V. Wigley, 3 Moo. & Sc. mon, 80 id. 183.
174 ; Hooper v. Keay, 1 Q. B. D. 178 ; 3 Baker v. Stac^poole, 9 Cow. 420

City Discount Co. v. McLean, L. R. (18 Am. Dec. 508) ; Lockw. Rev. Cas.

9 C. P. 693, 701 ; Alcott v. Strong, 9 380.
Vol. 1 — 33 513

§ 499. CONDUCT OF THE BUSINESS.

to the earlier items, although this relieves the partner of whose
existence the creditor was ignorant,' or if the creditor does not
know of the addition of the incoming partner."

In Toulmin v. Copland, 2 CI. & Fin. 681; 3 Younge &C. Ex. 636,
one partner was to contribute, as his share of capital, £40,000 in
good debts, and persons owing him this amount to become custom-
ers of the firm, and their old and new debts were kept in a contin-
uous account. Payments by such custonjers to the extent of
£40,000 were made, and it was held that they should be applied to
the earliest items, and therefore in discharge of the partner's obli-
gation, and not of the later debts due the firm.

So where a person is surety to P., for advances to be made by
him to J. & T. T. having died, and thus released the surety from
liability for further advances, but the dealings being continued as if
nothing had happened, subsequent remittances not specifically appro-
priated will be applied to the earlier itejns, thus relieving the surety.'

§ 498. Change in debtor firm. — Where the change in the
debtor firm is by the introduction of a new partner, pay-
ments generally by the new firm cannot be credited upon
the old account, without the incoming partner's assent to a
blending of the accounts.

Thus, where A. buys out B.'s business, and assumes his debts,
and continues to deal with a creditor of B., a general payment on
account by A. cannot be credited on the debt of B., without A.'s
consent;'' unless the accounts are blended with his assent. See
Beale v. Caddick, § 499, and two cases where the change of the
debtor firm was by it becoming incorporated, the corporation as-
suming the debts of the firm.'

§ 499. Change in a creditor firm. — The same principles
apply where the change is in the creditor firm.

So where a person owes a firm, and, one member dying, he sub-
sequently incurs a debt to the surviving partner, payments by him
not appropriated by either party will be credited upon the older
account.'

• Brooke v. Enderby, 3 Brod. & B. 5 Whitwell v. Warner, 20 Vt. 435 ;
70 ; Newmarch v. Clay, 14 East, 239. Allen v. Frunet Min. & Smelt. Co.

2 Scott V. Beale. 6 Jur. N. S. 559. 73 Mo. 688.

s Sirason v. Cooke, 1 Blng. 453. 'Starr v. Case, 59 Iowa, 491.

* Burland v. Nash, 3 F. & F. 687.

514

PAYMENT, NOVATION AND MERGER. § 500.

In Bodenham v. Purchas, 2 B. & Aid. 39, P., being indebted to
tbe firm, of B., C. & D., bankers, gave them a bond, with surety,, to
pay the debt, and such other sums as they might advance. D.
died, and G. was taken into the firm and the name was changed,
but the old balances were carried into the new account without
change. Payments after D.'s death w;ere required by the court to
be credited on the old account. Whether these payments were be-
fore G. became a partner does not appear, but that this makes no
difference was held in the following cases, if the account is con-
tinuous:

In Pemberton v. Oakes, 4 Russ. loi, A. was indebted to B., C. &
D., bankers; B. died, and E. took his place in the firm, and A. con-
tinued dealing with them. It was urged that his payments to the
new firm, having a new partner, could not be applied by mere in-
tendment of law to the debt of the old firm, but it was held the rule
in Clayton's Case applied, and the oldest items were discharged by
it. If a new partner is added, and a debt against an old customer
is carried forward and treated as part of the accounts of the new
firm, general payments by him will be applied to the old balance
if no rights of sureties or third persons are involved.'

In Beale v. Caddick, 2 H. & N. 326, the firm of H. & C. owed R.,
its banker; R. transferred the account to the M. bank, H. assent-
ing, which one partner has the right to do; the M. bank had an
option to decline any account within a year. . Subsequent pay-
ments to the M. bank must be credited on the old account, and the
bank cannot thereafter exercise the option and credit the payments
to their own loans to H. & G.

§ 500. account not continuous. — But where the ac-
count does not appear to be continuous the new firm is
entitled to appropriate general payments.

In Jones v. Maund, 3 Younge & Coll. 347, the change was in the
creditor firm. A. owed a secured debt to B., C. & D., .coal mer-
chants, trading as B. & Co. B. and C. died, and D. afterwards
retired, selling her interest to E., who, with F., continued the busi-
ness as B. & Co., and A.- continued dealing with them and made
payments. It not being shown that A.'s debt to the original firm
had been made an item in the new account, it was held that A.

I Morgan v. TarbeU, 28 Vt, 498; Bradley v. Richardson, 33 id. 720.

515

§ 501. CONDUCT OF THE BUSINESS.

had no right to require his general payments to be credited on tlie
old secured debt.

In Taylor v. Post, 30 Hun, 446, A. boiTowed money from a firm,
giving it a mortgage for |4,000 for the present debt and future
advances; one partner died, and his administrators and surviving
partners, together with new partners, continued the business, and
it was agreed that the mortgage should secure further loans. Pay-
ments by A. cannot be applied to the old debt, for the second firm
is not the same as the old, nor a continuation of it.

§ 501. The creditor, however, may dissent from con-
tinuing the account. If he does not assent to making the
old balance an item. in the new account, payments will not
necessarily go upon the old account. Following is the lead-
ing case on this point. •

B. & J. Ingham, bankers, at Huddersfield, were indebted to
Bruce & Co., bankers, in London, on a running account for ad-
vances to them and their customers on their account. B. Ingham
died, but his surviving partners continued business. Bruce & Co.
at first continued the account without a break, crediting subse-
quent payments generally, bift without notifying the debtors
thereof; but by the advice of their solicitors changed this and sent'
an account to the debtors thus, " Debtors, Messrs. B. & J. Ingham
& Co. (old account), in account with Bruce & Co., creditors," and
the first item on the debit side was the last balance sent previous
to the death of B. Ingham. They also sent a second account in
the same form, styling it the " new account," and kept the accounts
separate on their books. The debtors did not object to this, but
on their own book,s kept but one account. The court held that
where the account is continued without a break bj' both parties
payments must go against the oldest item; but that the plaintiffs
had the right to distinguish, and were not precluded by the entrijes
in their private books not communicated to the debtors.'

In Burns v. Pillsbury, 17 N. H. 66, a person who had made con-
signments to a, firm, and was its creditor on account thereof, con-
tinued to consign after dissolution, of which he had notice, to the
continuing partner. A distinction was made between the case and

1 Simson y. Ingham, 2 B. & C. 65 ; change in creditor firm by the ad-
3 Dow. & R. 249.' See, also, Morgan dition of a partner, the accounts
V. Tarbell, 28 Vt. 498, 501, of a being separated,

516

PAYMENT, NOVATION AND MERGER. §*503.

cases of banking houses, which are often continued through gen-
erations, and it was held that the consignor was not compelled to
credit remittances to the old account unless proved to be of money
of the old firm. This case proceeds on the basis that transactions,
after a change of firm, &vq prima facie deemed to be the independ-
ent transactions of the new firm, except in banking houses, and
that merely striking a balance and car-fyingit to the new account
does not affect the original debt. This distinction might also rec-
oncile Pemberton v. Oakes and Jones v. Maund, supra.

In Botsford v. Kleinhaus, 29 Mich. 332, plaintiffs were shipping
wheat to B., B. & H. as their factors; afterwards H. retired and the
firm became B. & B. Plaintiffs continued their shipments, and B.
& B. transferred the old account to their books and continued it
without change. Oa the old firm being sued by plaintiffs, it was
held that plaintiffs' assent to the transfer and continuance of the
account must be shown in order to include inquiry into the deal-
ings with the new firm in the action, and that the plaintiffs had a
right to assume that the business would be kept separate and were
not bound by the unauthorized entries.

NOVATION.

§ 502. When a firm dissolves, whether the dissolution be
by the retirement of an old partner or the introduction of a
new one, or both, and one partner or the new firm assumes
•the debts of the old, the dissolution and agreement do not
ipso facto release the old liability to the creditor nor create a
new one. To accomplish that result action or assent on the
part of the three parties: the original debtors, the person or
persons "^ho assume the debts, and the creditor, is necessary.

We have already seen that the release of one partner by a
creditor may release the entire firm,^ when not accompanied
by a promise of the other partners to pay or a reservation of
rights as against them.^ The question in this chapter is,
what' is a sufficient substitution of debtors 6r agreement to
look to some of the partners and discharge the others?

§ 503. Creditor must assent. — An agreement between the
old and new partners that the latter wiU assume or wiU

1 § 385. 2 g 387.

517

§503. CONDUCT OF THE BUSIJN ESS.

pay their share of the debts, or that the new firm will as-
sume the debts, if made without the creditor being a party,
or without notice to or consultation with and assent by him,
cannot be taken advantage of by him. It does not convert
the separate into a joint debt, but is merely like the agree-
ment of one partner with another to pay a debt of the firm.
The principle that a promise made to one person for the
benefit of another can be sued upon by the latter does not
apply, for this is clearly not a promise between the partners
for the benefit of the creditor, but is purely for their own
benefit, and as to him is res inter alios acta}

Where the joint property is a leasehold, and one assigns his in-
terest to the other, the landlord may recover the entire rent from
the latter, for he is liable for half as tenant in common by privity
of estate and of contract, and half by privity of estate.'

In Wild V. Dean, 3 Allen, 579, it was held that the rule that a
creditor cannot prove his debt against the separate estate of a part-
ner who had bought out his copartner and given him a bond to
pay all the debts is not changed by the creditor's having notified
such partner, or both of them, that he elected to treat it as the
separate debt of such partner, without proof of the latter's assent.

1 Following are cases where the Following are cases where the dis-

iiew firm included an incoming part- solution was by the retirement of a

ner: Ex parte Williams, Buck, 13; partner without the addition of a

Ex parte Freeman, id. 471 ; Ex parte new one: Ex parteBieiAhuiy, 4Deac.

Fry, 1 Gl. & J. 90; Ex parte Faiker, 202; Eobb v. Mudge, 14 Gray, 534;

2 M. D. & Di 511 ; Ex parte Peele, 6 Wild v. Dean, 3 Allen, 579 ; Fpwle v.

Ves. 602; Vere v. Ashby, 10 B. & 0. Torrey, 181 Mass. 289; Ayres v. Gal-

288-, Ee Isaacs, 3 Sawy. 35; 6 Bankr. lup, 44 Mich. 13; Spaunhorst v. Link,

lleg, 93; Lee v. Fontaine, 10 Ala. 46 Mo. 197; Merrill v. Green, 55

755 ; 44 Am. Dec. 505 ; Hicks v. Wy- N. Y. 270 ; Macintosh v. Fatman, 38

att, 23 Ark. 55 ; Goodenow v. Jones, How. Pr. 145 ; Campbell v. Lacook,

75 111. 48; Locke V.Hall, 9 Me. 133; 40 Pa. St. 448. In Shoemaker v.

Manny i\ Frasier, 27 Mo. 419; Parm- King, 40 Pa. St. 107, a firm sold out

alee v. Wiggenhorn, 5 Neb. 322 ; its entire business to a third person,

Morehead v. Wriston, 73 N. Ca. 398; who assumed the debts, and a cred-

Torrens v. Campbell, 74 Pa. St. 470 ; itor attempted to sue the buyer and

Kountz V. Holthouse, 85 id. 233; failed.

Piano Co. v. Bernard, 3 Lea,, 358, 360; 2 Dwight v. Mudge, 12 Gray, 23.
McKeand v. Mortimore, 11 Up. Can.
Q. B. 433.

518

PAYMENT, NOVATION AND MERGER. § 504.

As the debtor cannot convert a joint into a separate debt without
the creditor's assent, neither can the creditor without the debtor's
assent. The agreement is only a private executory ag^reement be-
tween the partners, to regulate their duties between themselves, to
which the creditors were neither parties ,nor privies. The cases
which have gone the farthest show a promise by the partner to
take on himself the burden of payment.

In Parmalee v. Wiggenhorn, 5 Neb. 322, C. had agreed to sell all
the produce of his mill for a year to the plaintiff. He then sold
half the mill to W. and formed a partnership with him and con-
tinued to' deliver to plaintiff; He then sold the other half to G.,
who knew of .the contract and assumed all C.'s responsibilities, and
W. & Gr. agreed- to continue to deliver the produce, but after-
wards refused to do so. These facts were held not to show a cause
of action against the new firm in favor of plaintiff, for there must
be a novation of all the parties, extinguishing the old contract and
creating a new liability on some consideration, and a mere receipt
of payment by the new firm does not raise a presumption of an
agreement to be liable for the breach.'

§ 504. contrary authorities. — Some other states,

however, repudiate this doctrine, in part at least, that the
creditor cannot take advantage of the agreement between
the new and old firms, by which the latter assumes the
debts and agrees to pay them.^

And others hold that where the new firm receives assets
for which their assumption of the debts was part considera-

1 Where a partaer, indebted tp one there was no incoming partner:
Y., retired, in consideration of which Hood v. Spencer, 4McLean, 168; Hoyt
the remaining partners assumed this v. Murphy, 18 Ala. 816, allowing a
debt to Y., and Y. thereupon orally set-off of the claim; Devol v. Mcln-
released the retiring partner, and an tosh, 23 lud. 539 ; Hardy v. Blazer,
agent of the remaining partners by 29 id. 226; Dunlap v. McNeil, 35 id.
mistake placed the amount of the 316 ; Haggerty v. Johnston, 48 id. 41 ;
debt on the books to the credit of X. Way v. Fravel, 61 id. 162; Powers v.
& Y.. instead of to Y. alone, but X. Fletcher, 84 id. 154. Following are
claimed no Interest in it, Y. can the cases where there was an incom-
avail himself of the credit and hold ing partner: Poole v. Hintrager, 60
the remaining partners. There is a Iowa, 180 ; Colt v. Wilder, 1 Edw.
complete novation. York v. Orton, Ch. 484 ; Arnold v. Nicliols, 64 N. Y.
65 Wis. 6. ' ll'i'. See Smead v. Lacey, 1 Disney,

2 Following are the cases where 289, noticed fully under § 510.

519

§ 605. CONDUCT OF THE BUSINESS.

tion, aud agrees to apply these assets to the debts, this prom-
ise inures to creditors.^

In Arnold v. Nichols, 64 N. T. 117, a person in business by
himself took in a partner and transferred the assets to the firm in
consideration that the firm would pay the debts of .the business
and apply the assets to such debts. It was held that a creditor
could sue the firm on such an agreement, as being made for his bene-
fit, for the agreement was not primarily for the benefit of the
original debtor."

In Osborn v. Osborn, 36 Mich, 48, C, of A., B. & C, sold his in-
terest to D., who assumed C.'s share of the liabilities and tools: his
place inihe firm. A creditor of A., B. & C. then sued A., B. & D.,
averring a promise by them to pay the debt, and it was held she
could recover, but that this was not on the principle of a promise
made between the partners for her benefit, and that payments on
the debt by the new firm was evidence of a substitution by consent
of both parties. That her husband, who was also a member of the
firm, made the payments is immaterial, since this is supposed to be
known to all the partners where no circumstances of secrecy are
shown. It is to be noticed of this case, however, that the retiring
partner had assigned to the creditor all claim he had against the
new partners on the agreement between them.

In Francis v. Smith, 1 Duv. 121, the retiring partner having
obtained a judgment against the incoming partner on his agree-
ment to pay debts, a creditor of the firm was, on the retiring
partner's consenting thereto, entitled to be substituted to such judg-
ment.

§ 505. Consideration. — The creditor's promise to one part-
ner to release him, although made after dissolution upon

1 See Torrens v. Campbell, 74 Pa. effects. On taking the effects he be-
st. 470, 474-6; Kountz v. Holthouse, comes liable to the attorneys. McKil-
85 Pa. St. 233; and Arnold ■«. Nichols, lip v. Cattle, 13 Neb. 477.
64 N. Y. 117. And see Hopkins v. 2 s. p. Turner v. Jaycox, 40 N. Y.
Johnson, 3 La. Ann. 843; Sedam v. 470, 474; but contra, where there
Williams, 4 McLean, 51; Marsh v. was no incoming partner, Merrill v.
Bennett, 5 id. 117. A firm indebted Green, 55 N. Y. 270. Possibly AIh-
for legal services was dissolved by bama and Michigan also make a dis-
decree fixing the shares of each part- tinction between oases where there
ner, and adjudging that one partner is and is not an incoming partner,
on paying this debt should take the Compare the foregoing list of cases.

530

PAYMENT, NOVATION AND MERGER. § 506.

the retirement of such partner, when not accompanied by a
promise of the other partner to the creditor to assume the
entire debt, or by a change of security, is a nudum pactum,
because founded on no consideration whatever.^ So a mere
promise by the new concern to pay the debt is a nudum pac-
tum; as where a firm indebted to the plaintiff became incor-
porated, the president of the corporation promised a creditor
of the firm that it would pay the debt, the promise is with-
out consideration.^ But if the other partner promise the
creditor to assume and pay the entire debt, and the creditor
promises to look to him alone, a substitution of debtors is
effected, and the other partner is i-eleased. This is founded
on the doctrine that the sole liability of one of two debtors
may, under many circumstances, be more beneficial and
convenient than the joint liability of two, and therefore the
change is founded upon a valuable consideration; and
whether it was actually a benefit in each particular case
will not be looked into, but the agreement will be sustained.^
§ 506. Original debtor still liaMe. — In the absence of a
novation, the original debtor or debtors continue liable, of
course, for a debtor cannot affect his own sole liability by

1 Thomas v. Shillabeer, 1 M. & W. Early v. Burt, 68 Iowa, 716; Wild v.
124; Clark «. Billings. 59 Ind. 508; Dean, 3 Allen, 579, 581. And see
Eagle Mfg. Co. v. Jennings, 29 Kan. Walstrom v. Hopkins, 103 Pa. St.
657 (44, Am. Rep. 638); Chase v. 118; and Clark v. Billings, 59 Ind.
Vaughan, 30 Me. 412 ; Wildes v. 508. Claj-k v. Brooks (Pa. Com. PI.
Fessenden, 4 Met. 12; Walstrom v. 1887), 19 Weekly Notes, 333, that a
Hopkins, 103 Pa. St. 118; Collyer v. release of retiring partner, and tak-
Moulton, 9 R; I. 90. ing note of the new firm, is not sus-

2 Georgia Co. v. Castleberry, 43 Ga. tained by any consideration if no new
1S7. partner has come' in. The cases of

3 Thompson v. Percival, 5B. & Ad. Lodge v. Dicas, 3 B: & Aid. 611, and
935; Lyth v. Ault, 7 Ex. 667; Be David^u. EUice, 5 B. & C. 196 ; 7 Dow.
Clap, 3 Low. 226; Backus v. Fobes, & Ry. 690; atf' g 1 C. & P. 368, which
20 N. Y. 204; Collyer v. Moulton, 9 also helJ that such mere promise, no
R. I. 90 ; MtxiSi Ins. Co. v. Peck, 28 note being given, was not a consid-
Vt. 93. Contra, that being merely a eration, are in this respect overruled
promise to pay his own debt, it is no by Thompson v. Percival, 5 B. &
consideration for a release of the co- Aid. 925 ; Lyth v. Ault, 7 Ex. 667,
partner where no new note or exten- and Hart v. Alexander, 2 M. & W.
sion of time or other change is made, 484.

521

§ 507. CONDUCT OF THE BUSINESS.

going into partnership. And the same principle applies to
executory contracts; as where services are agreed .to be
rendered to a person, or goods supplied to him, and he takes
in a partner, and the services or goods are received by the
partnership, the original debtor still continues chargeable
on the contract.

Thus, where the plaintiff contracted to enter the employment o£
defendant, and defendant took in a partner; or, if a firm, and it
took in a new partner, and the services were then rendered to the
firm, the original contract is not extinguished, and a new one with
the firm substituted, and the continuance of his duties by the em-
ployee is not a waiver of the contract.'

So, where T. engaged P. to board one of his hands, and T. after-
wards took in G. as a partner, and the hand became the employee .
of the firm, P. can sue T. alone for subsequent board, until he has
knowledge of such facts as render it imperative upon him to
change his mode of charging.'

So, if a tenant from year to year takes in a partner in the busi-
ness for which the premises were used, this does not alter his sole
liability to his landlord.'

§507. Incoming partner not liable for old debts. — The

more difficult question arises, what facts are sufficient to
show an agreement by the creditor to discharge some of the
partners and look to the rest as his sole debtors? A substi-
tution of debtors does not require an express agreement, but
results from the intention of the parties' gathered from their
acts and declarations, inconsistent with a continuance of the
original liability.

A person becoming a member of an existing firm, or form-
ing a partnership with another in the latter's existing busi-
ness, does not thereby become hable for the debts already
incurred, nor does the new firm become liable for them. An
agreement, express ou implied, is necessary to create such
liability, not only between the creditors and the new- firm
but also as between the partners; that is to say, the pre-

iFifield V. Adams, 3 Iowa, 487; 3 Barlow v. Wainwright, 23 Vt. 88
Froun v. Davis, 97 Ind. 401. (53 Am. Dec. 79). See § 508.

s Taggart v. Phelps, 10 Vt. 318.

533

PAYMENT, NOVATION AND MERGER. § 507.

sumption is against the assumption of such liability, and the
burden to prove it is upon the one who asserts it. This is
like the principle governing the cases where a contract is
made with one partner, or a credit is extended to one of a
firm, upon which the copartners are not liable.^

In Gaus V. Hobbs, 18 Kan. 500, P. and H. met on September
9th., and conversed about forming a partnership but came to no
agreement. Shortly afterwards P. bought from plaintiffs the goods
for which this action was brought, in the name of P. & H. On
October 19th, P. and H. met again and formed a partnership, P.
putting in the goods as part of his capital, H. being ignorant of
the facts of the purchase, and it was held that H. was not liable. It
was further said, p. 504, that even had H. learned of the facts, he
would not have been bound to repudiate accountability, for an
incoming partner is not obliged to act to prevent responsibility,
but must act in order to incur one.

In Shafer's Appeal, 99 Pa. St. 246, Shafer owed the banking firm

lAtwood V. Lookhart, 4 McLean, Sewing Machine Co. 13 id. 177;

350; Butler v. Henry, 48 Ark. 551; Durand u. Curtis, 57 N. Y. 7; Sizer

Citizens' BankuHine, 49 Conn. 236; v. Ray, 87 id. 330; Fuller v. Eowe,

Bryan v. Tooke, 60 Ga. 437 ; Bracken 57 id. 23; Pierce v. Alspaugh, 83 N.

V. EUsworth, 64 id. 343 ; Morris v. Ca. 358; Brooke v. Evans, 5 Watts,

Marqneze, 74 id. 86 ; Watt v. Kirby, 196 ; Babcock v. Stewart, 58 Pa. St.

15 111. 300; Wright v. Brosseau, 73 179; Sham burg d. Ruggles, R3id. 148;

id. 381 ; Goodenow v. Jones, 75 id. 48 ; Hart v. Kelley, 83 id. 386 ; Morrison's

Smith V. Hood, 4 111. App. 360; Appeal, 93 id. 336; Shafer's Appeal,

Wheat V. Hamilton, 53 Ind. 356; 99 id. 246; Holmes v. Caldwell, 8

Tifleldr. Adams, 3 Iowa, 487; Stern- Rich. (S. Ca.) L. 347; Piano Co. v.

burg V. Callanan, 14 id. -251; Cad- Bernard, 3 Lea (Tenn.), 358; Bank u.

wallader v. Blair, 18 id. 430; Waller Gray, 13 id. 459; Adkins v. Arthur,

V. Davis, 59 id. 103; Cross v. National 33 Tex. 431, 440; Hart v. Tomlinson,

Bank, 17 Kan. 336; Gaus v. Hobbs, 3 Vt 101; Poindexter v. Waddy, B

18 id. 500 ; Duncan v., Lewis, 1 rfuv. Munf. 418 (8 Am. Dec. 749) ; Peters v.

(Ky.) 183; Meador v. Hughes, 14 McWilliams, 78 Va. 567; McLinden

Bush, 653; Mosseau v. Thebens, 19 v. Wentworth, 51 Wis. 170, 181;

La. Ann. 516; Beall v. Poole, 37 Md. Hiue v. Beddome, 8 Up. Can. C. P.

615; Guild v. Belcher, 119 Mass, 257; 881; McKeaud v. Mortimore, 11 Up.

• Lake v. Muuford, 4 Sm. & Mar. Can. Q. B. 438. For Louisiana law

313; Fagan v. Long, 30 Mo. 333; as to liability of widow who has ao-

Deere v. Plant, 43 id. 60 ; Wilgus v. cepted the succession of her husband

Lewis, 8 Mo. Ap^. 336; Parmalee v. for prior debts of the firm, see Hen-

Wiggenhorn, 6 Neb. 333; Howell v. derson v. Wadsworth, 115 U. S. 264.

523

§ 608. CONDUCT OF THE BUSINESS.

of D. & Co. on a note on which he had paid them usurious inter-
est. One of the partners having died the survivors and another
formed a new firm under the old name, but assumed none of the
old debts. Shafer borrowed money of the new firm wherewith to
pay his debts to the old. It was held that he could not compel the
application of the usury paid the old firm on account of the debt to
the new. The new partner cannot be prejudiced by the slaim
against the old firm.

In Morrison's Appeal, 93 Pa. St. 326, B., of B. &'L., bought out
L., but, while still in debt to L. for part of the purchase money,
failed. While B. was still in business he gave accommodation
, notes to L., then trading under the name of L. & W., which L.
agreed to protect. Afterwards L. took in T. and M. as partners,
still under the name of L. & W. As the note matured, B. gave
other notes to L. & W. to take up the old ones, and the new firm
indorsed and used them for that purpose, and when B. failed tliese
notes were proved against his estate. As the new firm of L. & W.
received none of the proceeds of the renewal notes, it was held that
they owed nothing to B., and therefore could prove against his
estate a claim for goods sold by them to B.

Where a claim was placed for collection in the hands of a firm of
attorneys who afterwards dissolved and formed a new firm with
another partner, and the new firm dissolved before any steps to
collect the claim were taken, and the collection was then made by
the original partner of the new firm, the incoming partner was
held not to be liable to the client for the amount.'

§ 508. Even where the partners have before forming the
partnership made contracts, each upon his individual credit,
though with the intention and under the agreement to con-
tribute the goods or money thereby obtained to the projected
firm, and has brought them in as agreed, the firm or the
other partners are not liable on such contracts. The part-
inership until actually formed is inchoate, and the agency
of each partner to act for the others has not begun. The
fact that the new firm received the benefit of the contracts
' does not create a liability. These principles have been ex-
amined in treating of contract with one partner, and inchoate
partnerships.

1 Ayrault v. Chamberlin, 26 Barb. 83.

534

PAYMENT, NOVATION AND MERGER. § 508.

A quite usual application of the doctrine is where a person
leases property for the purposes of his business, and then
takes in partners. The latter do not thereby become liable
for the rent merely by becoming partners and occupying.*

"Where the order is for a definite quantity of goods, the
incoming partners are, of course, not liable for subsequent de-
liveries under the contract under the principles stated in the
foregoing sections; ^ but even here, if the subsequent delivery
be made to and on the credit of the, firm, and received by
them, not on behalf of the original contractor, but on joint
account, at the request of the original contractor, for the
latter, such request renders the firm liable for the price, for
the contractor has the same power to receive them on
joint account, where the title has not already passed to him,
that he has to'make a new contract of purchase for the firm.'

Where the contract is not for the delivery of a definite
number or amount of goods, but is a continuing contract
for delivery at a certain. price, the goods supplied after the
partnership has been formed are deemed to be delivered as
upon a tacit , con tract with the new firm.*

And in sucli cases, if the change is in the retirement of a partner,
he is not exonerated by the fact of notice to the shipper that tlie

1 Durand v. Curtis, 57 N. Y. 7 ; into partnerstiip. Subsequent de-
Pierce V. Alspaugh, 83 N. Ca. 258 ; liveries were held to be on the credit
Brooke v. Evans, 5 Watts, 196 ; Bar- of the firm and on its implied agree-
low V. Wainwright, 33 Vt. 88 (53 men to pay for them; although had A.
Am. Dec. 79). And see Lucas v. contracted at first for the entire quan-
Coulter, 104 Ind. 81; Wilgus v. tity, he alone would have been liable
Lewis, 8 Mo. App. 336 ; Jackson v. for them. Helsby v. Mears, 5 B. &
Salmon, 4 Wend. 327. C. 504 (as explained in Beale v.

2Gooderiow v. Jones, 75 lU. 48; Mouls, 10 Q. B. 976), where the

Duncan u 'Lewis, 1 Duv. 183; Beale owner of certain coaches contracted

V. Mollis, 10 Q. B. 976. with B. for the carriage of parcels

» Smith V. Hood, 4 111. App. 360 ; which B. was in the habit of send-

Watt V. Kirby, 15 lU. 200 ; Johnson ing to various places. This contract

V. Barry, 95 id. 483. was held to bind incoming partners.

< Dyke tt Brewer, 2 Car. & K. 838, Compare, also, Winston v. Taylor,

where bricks were to be supplied by 28 Mo. 83, noticed at the end of this

plaintiff to A. at a certain price, but section.

of no definite quantity. A. took B. • .

535

§ 509. CONDUCT OF THE BUSINESS.

property so bailed is turned over to the new firm, for he cannot
release himself without the consignor's assent.'

But in Winston v. Taylor, 28 Mo. 82, where cattle were delivered
to be herded, and some were lost after one bailee had retired, it
was held that if property is not bailed for a definite time, the bailor,
on notice of retirement of a partner, must remove his property
within a reasonable time,, or look to the new firm alone. Directing
the new firm to sell and remit was held to be taking a control that
absolves the ex-partner.'

And where a person holds the merchandise or other prop-
erty of another for sale for him, for example, as agent .or
factor, and takes in partners, and the new firm sells the
goods so consigned, they are liable for the proceeds to the
consignor or owner, for the.firm only takes the title of the
original consignee.'

§ 509. note of new firm without consent of inc6ming

partner. — If, after the new partner is taken in, one or all of
the original partners make a note or bill in the name of the
new firm for a debt of the old, without the assent of the in-
coming partner who had not assumed the old debts, this
note is in violation of the rights of the new firm, and
is governed by the same rules that apply to any other note
or use of the partnership name by one partner without au-
thority for his own benefit. That is, the note does not bind
the non-assenting partners in the hands of the payee or any
one holding under him, other than a bona fide indorsee be-
fore maturity without notice.*

Where, however, the members of C. & Co.,' with other persons,
formed another firm of H. & Co., and C. & Co. had a sum standing- to

1 Dean v. McFaul, 23 Mo. 76; Wilson «. Bailey, 9 Dowl. P. C. 18
Holden v. MoFaul, 31 id. 215 ; Hall Citizens' Bank v. Hine, 49 Conn. 236
V. Jones, 56 Ala. 493. Baxter v. Plunkett, 4 Houst. 450

2 Hall V. Jones, 56 Ala., 493. , Bryan v. Tooke, 60 Ga. 437 ; Wright

3 Dix V. Otis, 5 Pick. 88 ; Piaiio Co. v. Brosseau, 73 111. 381 ; Waller v.
V. Bernard, 2 Lea, 358. . Davis, 59 Iowa, 103 ;. Guild*. Belcher,

^Shirreff u Wilks, 1 East, 48; Ex 119 Mass. 257; Fagan v. Long, 30
parte Goulding, 2 GI. & J. 118; Wil- Mo. 332; Howell v. Sewing Machine
Bon#. Lewis, 2 M. & G. 197; s. C. as Co. 13 Nebr. 177.

536

PAYMENT, NOVATION AND MERGER. § 510.

its credit on the books of H. & Co., and C, of botli firms, drew on
the new firm in favor of a creditor of C. & Co. for an amount less
than the credit on the books, and accepted the draft in the name
of the new firm, the new firm is bound by the draft, for this is
merely paying the debt of the new firm to the old.' ' *

Where the new note includes a debt of the new firm with that of
the old, the payee can recover upon it against the new firm to the
extent of the valid consideration, the payee having acted in good
faith in receiving the note."

§ 510. may adopt old debts. — The incomiag partner

may, however, become liable for the existing indebtedness
by an express promise to pay it, or by an assumption of the
debt on proper consideration.'

1 Hester v. Lumpkin, 4 Ala. 509. Curtis, 57 N. Y. 7 ; Arnold v. Nichols,

2 Guild «. Belcher, 119 Mass. 257; 61 id. 117; Bate u. McDowell, 17 Jones
Wilson V. Lewis, 3 M. &G. 197; s. C. & Sp. 106; Abpt v. Miller, 5 Jones
as Wilson v. Bailey, 9 Dowl. P. 0. 18. (N. Ca.), L. 33 ; Broaddus v. Evans, 63

SBurritt v. Dickson, 8 Gal. 113; N. Ca. 638; Morehead i». Wriston, 73

Markham v. Hazen, 48 Ga. 570 ; Wil- N. Ca. 398 ; Smead v. Lacey, 1 Disney,

son V. Dozier, 58 id. 603 ; Bracken v. 239 ; Torrens v. Campbell, 74 Pa. St.

Ellsworth, 64 id. 243 ; Morris v. Mar- 470 ; Shamburg ?;. Ruggles, 83 id. 148 ;

queze, 74 id. 86 ; Warren v. Dickson, Hart v. Kelley, 83 id. 386 ; Kountz v.

30 III. 363; GoodenowtJ. Jones, 75 id. Holthouse, 85 id. 333? White v. Thiel-

48; Silverman v.- Chase, 90 id. 37; ens, 106 i(J. 173; Earon v. Mackey,

Johnson v. Barry, 95 id. 483; Frazer 106 id. 453; Updike v. Doyle, 7 R. I.

V. Howe, 106 id. 563 ; McCracken v. 446 ; Piano Co. v. Bernard, 3 Lea

Milhous, 7 111. App. 169; Lucas v. j(Tenn.), 358; Wallace v. Freeman, 35

Coultqr, 104 Ind. 81; Sternburg v. Tex. Sup. 91; Allen v. Atchison, 36

Callanan, 14 Iowa, 351; Preusser v. Tex., 616, 638; Hobbs v. Wilson, 1

Henshaw, 49 id. 41; Poole v. Hin- W. Va. 50 ; Jones u Bartlett, 50 Wis.

trager, 60 id. 180; Cross v. National 589; Hine ?;. Beddome, 8 Up. Can. C.

Bank, 17 Kan. 336; Beall v. Poole, P. 881. In Smead v. Lacey, 1 Dis-

27 Md. 645 ; Shaw v. McGregory, 105 ney, 339, this assumption of old

Mass. 96; Botsford v. Kleinhaus, 39 debts by the new firm was held in-

Mioh. 333 ; Osborn v. Osbor'n, 36 f erable from the facts that the

Mich. 48 ; Coleman v. Pearce, 26 course of business was to pay old

Minn. 133; Mueller v. Wiebracht, 47 debts indiscriminately, without

Mo. 468 ; Baum v. Fryrear, 85 id. charging them up to the old firm,

151 : Parmalee v. Wiggenhorn, 5 Neb. and no accouut of stock was taken

323 ; Howell v. Sewing Machine Co. on the new partner coming in, or any

13 id. 177; Morrison v. Blodgett, 8 change made in the books or new

N, H. 238 (39 Am. Dec. 653) ; Colt v. ones opened, and old and new cred-

Wilder, 1 Edw. Ch. 484 ; Durand v. itors were held to be payable equally

537

§ 51 1. CONDUCT OF THE BUSINESS.

A mere promise by the incoming partner alone to a cred-
itor to pay the debt where the original liability of the former
partners is not released is within the statute of frauds as a
promise to pay the debt of another.' There must be a prom-
ise to the creditor upon a new consideration or a release of
the pi-ior individual or former firm.'^ A promise, however,
by the new firm which the creditor accepts, and in doing so
releases the former debtor or debtors, is not collateral and
not within the statute of frauds.'

§ 511. Assumption shown by acts; estoppel.— But the as-
sumption of the debts in favor of the creditor may be im-
plied from acts and conduct towards the creditor.*

The incoming partner may also become liable by so acting
towards the creditor as to be estopped to deny an assump-
tion of the debt by him.

In Burritt v. Dickson, 8 Cal. 113, the creditor demanded his debt,
and the new partner, knowing the creditor did not know whether
the new firm was or was not liable, did not deny the liability, and

, the creditor was thus induced to sue the new firm. This was ruled
to constitute an estoppel, though on rehearing the judgment was
set aside, as the plaintiif was found to have drawn the partnership

. articles and therefore knew that there was no liability.

In Coleman v. Pearce, 26 Minn. 123, C. consigned wheat to 0.,
to be sold when ordered by him, on commission. Before order to
sell, 0. took in P. as partner, both of them notifying C. thereof,
and accounts were rendered in the firm name to C, showing that
C.'s accoiant and the consigned property had been' transferred to
the firm. C, trusting to the firm's responsibility, did not order

on the insolvency of the new firm. ^.Morris v. Marqueze, 74 Ga. 86;
It nowhere appears from the report Goodenow v. Jones, 75 111. 48 ; Shoe-
that the old creditors assented to the maker v. King, 40 Pa. St. 107.
novation. 3 Wallace v. Freeman, 25 ^ex.
1 Bracken v. Ellsworth, 64 Ga. 243 ; Supp. 91 ; Shoemaker v. King, 40 Pa.
Sternbiirg v. Callanan, 14 Iowa, 251. St. 107. See White v. Thielens, 106
But see Poole v. Hintrager, 60 Iowa, Pa. St. 173.

180. But after payments by the new * McCracken v. Milhous, 7 111. App.

firm, credited by their agreement on 169 ; Lucas v. Coulter, 104 Ind. 81 ;

the old account, it is too Jate to raise Beall v. Poole, 27 Md. 645 ; Updike

the question of the statute of frauds, v. Doyle, 7 R. I. 446 ; Piano Co. v.

Mueller v. Wiebracht, 47 Mo. 468. Bernard, 2 Lea, 858, 360.

528

PAYMENT, NOVATION AND MERGER. § 51 1.

sale for several months, and tlien learned that 0. had converted the
wheat to his own use prior to forming the partnership. It was held
that both partners were estopped to deny the truth of their false
representations.

Slight evidence will be sufficient to warrant the court in infer-
ring that the incoming partner or the new firm has assumed the
debts of the old, especially if he or they have received the benefit
of those debts.'

If, on the death of a partner, his widow takes his place in the
firm, intending there shall be no change in the business operations,
and a current contract is continued to be carried out, and she de-
rives a benefit from it, the conclusion may be drawn that she
intended to assume the same burdens that the husband would, if
living, have had;'' and if she gives a mortgage for his partnership
debts, it will be presumed that she intended to become liable for
them; and that the mortgage is on valid consideration, as against
other creditors.' So writing to the creditor, recognizing the debt,
and scheduling it as a partnership debt, shows an assumption.^

But a mere statement by the new partner, that he would like to
give new notes for the old, and had no loose money about him, is
not an assent to the making of notes, any more than a willingness
to lend credit is authority to use the firm name;° and agreeing
with the former partners, that the cost of fitting up the premises
shall be considered as expenses, before dividing profits, is not as-
suming the debt therefor, except so far as there may be profits out
of which to pay it.'

A rendering of an annual account, by the new firm, with the old
balance as part of it, does not make the new firm liable; ' but if so
done at the creditor's suggestion, or with his assent, is evidence of
his adoption of the new firm as his debtors, if they had assumed
the debt.«

^Ex parte Peele, 6 Ves. Jr. 603, SFrazer u Howe, 106 III. 563.

604; Ex -parte Jackson, 1 id. 131; "Preusseru Henshaw, 49Iowa, 41.

Wheat V. Hamilton, 53 Ind. 256; < White v. Thielens, 106 Pa. St, 173.

Cross V. National Bank, 17 Kan. 336. 5 Howell v. Sewing Machine Co. 13

See Smead v. Lacey, 1 Disney, 239, Nebr. 177.

abstracted in § 510. Contra, that he « Hart v. Kelley, 83 Pa. St. 286.

should not be held liable on slight 7 Ex parte Parker, 3 M. D. & D.

circumstances, Bracken v. Ells- 511.

worth, 64 Ga. 243 ; Beall v. Poole, 37 s Hine v. Beddome, 8 Up. Can. C.

Md. 645. P. 381,
Vol. I — 34 539

§ 512. CONDUCT OF THE BUSINESS.

So payment of interest, or a partial payment, to the creditor, by
the new firm, though it may be some evidence of an assumption by
it of the debt, as between the partners, is not with the creditor.' And
where the new firm agreed with the retiring partner to continue
delivery of produce, under a contract with plaintiff, the mere re-
ceipt of payments from the plaintiff does not raise a presumption
that the new firm had agreed to be liable to the plaintiff for refusal
to continue delivery.'

§ 512. entries on books of new flrra.— Entering the

old debt in the books as a debt of the new concern fixes
upon the incoming partner the consequences of a knowl-
edge that it is claimed to be their debt, and is evidence that
it is so;' but contra if the incoming partner had no access
to the books, and did not know of such entries.*

So carrying on the accounts of the new firm in the old
books, without any line of demarcation or distinction be-
tween the payments, balances, debts or assets of the old and
new concerns, as a continuous business, raay be evidence of
an assumption of the earlier part of a continuing unbroken
account.*

The doctrine of the application of payments, where an account
is kept on in an unbroken line, through changes in the membership
of firms, has been already considered.

1 Ex parte Parker, 3 M. D. & D. Cross v. National Bank, 17 Kan. 336 ;
511; Beale v. Mouls, 10 Q. B. 976; Abpt u Miller, 5 Jones (N. Ca.), L.
Moreheadii. Wriston, 73 N. Ca. 398; 33; Updike v. Doyle, 7 E. I. 446;
Shamburg v. Euggles, 83 Pa. St. 148. Piano Co. v. Bernard, 3 Lea, 358;
Contra, that it is evidence of a nova- Hine v. Beddorae, 8 Up. Can, C. P.
tion by consent of both parties. Os- 381.

born V. Osborn, 36 Mich. 48; Cross *Ea;parfe Peele, 6 Ves. 603; Piano

V. National Bank, 17 Kan. 336. Co. v. Bernard, 2 Lea, 358. .

2 Parmalee v. Wiggenhorn, 5 Neb. 5 Rolfe v. Flower, L. E. 1 P. C. 40 ;
333. And see Goodenow v. Jones, Bate v. McDoWeU, 17 Jones & Sp.
75 111. 48. 106; Smead v. Lacey, 1 Disney, 339;

3 Ex parte Kedie, 3 Deac. & C. 321 ; Shamburg v. Euggles, 83 Pa. St. 148 ;
Ex parte Whitmore, 3 M. & A. 627; Earon v. Mackey, 106 Pa. St. 452;
3 Deac. 365; s. 0. on appeal as Ex Updike v. Doyle, 7 E. I. 446. But
parte Jackson, 3 M. D. & D. 146; will not control other improbabili-
Eolf e V. Flower, L. E. 1 P. C. 27 ; ties, Ex parte Sandham, 4 Deac. &
Ex parte Griffin, 3 Ont. App. 1 ; Ch. 813.

530

PAYMENT, NOVATION AND MERGER. §514.

§ 513. examples of agreements inter se. — A written

agreement between the owner of a business carried on in a store
leased by him and an incoming partner, that the partners should be
equ9,lly liable for debts and liabilities suffered or created on account
of the firm, does not include the rent accruing after dissolution of
the new firm, and the incoming partner is not liable for it, although
there had been a prior parol agreement that the firm should be
liable for the rent during the whole unexpired term.'

Where H. bought half of B.'s business and went into partnership
with him, agreeing to assume and pay half the debts owing on the
stock, but having failed to do so, and B. having paid nearly all the
debts, it was held that a debt due from B. for work in the store
could be proved against the firm's assignee for creditors; that the
words owing on the stock should not receive a narrow construc-
tion, but should be held to mean incurred on account of the con-
cern.'

Where one partner of an existing firm assigns part of his inter-
est to a person by agreement, constituting such person " a partner in
the firm to the amount of one-eighth of all its profits and losses from
the time the firm began business," and such person is received by the
firm as a member, he is a partner from the beginning and liable for
existing debts. No other construction is reasonable, especially
where there is no change of name or of accounts or new books.'

Where a person bought out the business of Z. & C, a partnership,
and C. & T. then formed a partnership and bought out from him
the same business iinder articles providing that C. & T. would as-
sume the debts of Z. & C, it was held that T. could show by parol
that he was induce,d to enter the contract by C.'s exhibiting to him
a list of the debts of Z. & C, from which oue debt was omitted, as
evidence that, as between the partners, that debt was not assumed."

§ 514. fraud on the incoming partner.— Where fraud

has been practiced on the incoming partner to induce him to enter
the firm and assume part of the debts, he can make any defense
against the claim of a creditor of the former firm that he could if
his copartner were suing him on the contract to assume, where
the creditor is seeking to recover on the contract between the

1 Durand v. Curtis, 57 N. Y. 7. < Torrens v. Campbell, 74 Pa, St.

2 Jones V. Bartlett, 50 Wis. 589. 470, 474.

3 Earon v. Mackey, 106 Pa. St. 453.

531

§ 516. CONDUCT OF THE BUSINESS.

partners, for tlie creditor's claim is subject to any weakness in sucli
contract, as fraud, mistake, want of consideration, and the like."

But the incoming partner must have repudiated or rescinded the
contract on discovery of the fraud, otherwise he cannot make such
defense, for he cannot retain the fruits of it, especially where the
assets transferred were sufficient to pay the debts, and refuse to per-
form."

§ 615. —. — note for debt assumed by new firm. — If a

partnership is formed before goods purchased by one of the
partners are paid for, and the partners agree that the new
firm shall use and pay for the goods, and one of them gives
the firm's note or acceptance to the seller in payment, this
binds the firm. It is held to be on a perfectly good consid-
eration, and it is but just that the firm should assume th(>
debt.'

If a note is given by one partner for the debt of the prior
firm, a recognition of the note and promise to the creditor to pay
it on the part of the new partner is evidence that he assumed
the debts and makes the note valid.* Or an assent to the issu-
ing of the new note by being present when its propriety was dis-
cussed.'

If, after a partner has sold out to a third person who forms a new
firm with the continuing partner, execution against the old firm is*
levied on the goods, and the new firm receipts to the sheriff and
promises to pay or re-deliver, the promise is good, for the goods
ought to pay the debt.'-

§516. assent of creditor. — Except in those few

states where the creditor can sue the new firm on their as-
sumption of the debts of the old without his being a party
to such change, a request to the creditor and his assent are
necessary in the above cases to render the new firm liable

1 Torrens v. Campbell, 74 Pa. St. Barry, 95 id. 483; Rice v. Wolff, 65
470, 474. And see Morris v. Mar- Wis. 1.

queze, 74 Ga. 86. 4 Wilson v. Dozier, 58 Ga, 602;

2 Arnold v. Nichols, 64 N. Y. 117. Cross v. National Bank, 17 Kan. 336.
8Markham v. Hazen, 48 Ga. 570; * See Shaw i>. McGregory, 105 Mass.

Morris V. Marqueze, 74 id. 88; Silver- 96.

man v. Chase, 90 111. 37 ; Johnson v. « Morrison v. Blodgett, 8 N. H. 238;

29 Am. Dec. 653.
532

PAYMENT, NOVATION AND MERGER. § 518.

to him on its agreement to pay the debts of the old. With-
out this there is no novation.

Such assent may be proved by acts. Thus, where the creditor,
on request of the new firm, made up his account and drew on the
new firm for the amount, this is evidence of assent.' A former at-
tachment by the creditor for the same' debt against the new firm is
evidence of his intent to release the retiring partner and charge the
new firm.''

It is too late for the creditor to assent to holding the new firm
liable in place of the old after the incoming partner has retired
from the new firm;' or after the bankruptcy of the new firm, for
tliey cannot then contract.''

The fact that the creditor was a lunatic makes no difference.'

§ 517. practice. — A declaration against four persons as

partners for goods sold and delivered, money lent, work done, etc.,
will sustain proof that the debts were incurred by two partners,
and that the other two subsequently joined the firm, and the new
firm agreed to pay. This is not a variance, it not being averred
that they were partners at the date of the delivery or lending.'

But where there are retired partners, as well as new ones, there
can be no action against all jointly unless there was a joint prom-
ise by all, for either the old firm or the new is liable.'

§518. Change without incoming partners. — Where a
firm is dissolved by the retirement of a partner, no new
partner coming in, a creditor's continued dealing v^^ith the

1 Ex parte Jacksoa, 3 M. D. & D. point, but illustrates the principle.
146; s. C. in the court below as Ex There S., of R. & Co., retired and B.
parte Whitniore, 3 M. & A. 627 ; 3 took his place, the firm name re-
Deac. 365; or included the old bal- maining the same, but no notice of
ance in the new account at his re- dissolution was given, and an old
quest, Hine v. Beddome, 8 Up. Can. customer, ignorant of the change,
C. P. 381. sold goods to the last firm. It was
2Baum t;. Fryrear, 85 Mo. 151. held that the liability of the old
3 McKeand v. Mortimore, 11 Up. firm was by estoppel to deny a con-
Can; Q. B. 438. tinuance of the agency of the part-
ita; parte Freeman, Buck, 471. ners to bind it, and that of the new

5 ^a; parte Parker, 3 M. D. &D. 511. firm was on the facts, and there

6 Beall V. Poole, 37 Md. 645. could not be a joint liability of old
'See Scarf v. Jardine, L. R. 7 App. ^nd new partners, but the creditor

Oas. 345. This is not directly in must elect.

583

§519. CONDUCT OF THE BUSINESS. *

new firm is not alone sufficient to show an intention on his
part to deprive himself of a right to resort to the retired
partner and to look to the new firm alone; and where the
dissolution is without a continuance of the business and no
new dealing, his treating a partner who had assumed the
debts as his sole debtor would seem to be still less final as
an evidence of such intention.

Where several persons were in partnership and one dies or re-
tires, customers who, knowing of the change, continue to deal
with the surviving partners who carry on the same business with-
out a break, can hold the estate of the deceased partner liable for
the balance due at his death, deducting subsequenj; payments.'
Such estate is liable for securities wrongfully sold in the life-time
of the decedent, for the additional reason that the customer could
not elect to discharge it without knowledge of the misappropria-
tion.'

Where the creditor, after dissolution, by which one partner as-
sumed the debts, had transferred upon his books the account against
the firm to the account of such partner, with whom he had had
intermediate dealings without the privity of any of the partners,
this does not prevent his recharging the firm and holding them.'

So where the creditor stated an account against the partner who
had assumed the debts, 'this does not discharge the other^ partner;
nor although in stating an account against the firm he omitted
such debt;* or drew upon him;' or dealt with him in finishing a
contract of employment made with the firm as attorneys to con-
duct a suit.'

§ 5 1 9. And slight circumstances only are required to justify a
finding that a creditor of the former firm, who had knowledge of

1 Devaynes v. Noble, Sleeoh's Case, « Waldeck v. Brande, 61 Wis. 579.
1 Mer. 539, 569; id. Clayton's Case, Where partners claim in defense that
ill. 572, 604; Botsford v. Kleinhaus, the plaintiff had agreed to transfer
29 Mich. 333. the amount due him to the account

2 Clayton's Case, 1 Mer. 579. of one partner as a debt due the lat-

3 Barker «. Blake, 11 Mass. 16, it ter from the others, their book was
was said that there was no consider- held admissible in evidence to show
ation for the change; but this is performance of the agreement on
not so. their part. Moore v. Knott, 14 Ore-

< Averill v. TLyman, 18 Pick. 846. gon, 35. j

s Skannel v. Taylor, 12 La. Ann. 773.

534

PAYMENT, NOVATION AND MERGER. §519.

tlie dissolution and assumption of debts, lias accepted the new firm
in place of the old as his debtor.'

Merely crediting the new firm, which had assumed the debts of
the old, with payments by them, is no evidence that the creditor
relinquished his claim against the old firm and the retiring part-
ners,' nor is expressing satisfaction at the change.' Merely accepting
payments from the continuing partners, though at an increased rate
of interest, does not show an agreement to release the retired
partner,^ or even taking new security from them.'

In Wildes v. Fessenden, 4 Met. 12, F. & S. owed W.for loans, and
F. also had an individual account with him. S., who had funds in
F.'s hands, requested F. to remit them to W. and close the account
of F. &S. F. remitted to W. with a request to credit the remit-
tances to F. generally, and to debit the loans of F. & S. to F. indi-
vidually. S. saw these letters. W. answered that he had received
the letter and " noted its contents." F. failed, largely indebted to
S., and after four and one-half months of silence, W. sued both F.
& S. on his account. W.'s letter was held not to be an agreement
to discharge S. The phrase " contents noted " does not imply a

1 Regester v. Dodge, 6 Fed. Rep. 6 ; not to exonerate him. Scull v. Alter,
19 Blatchf. 79 ; 61 How. Pr. 107, hold- 16 N. J. L. 147. See Botsford v.
ing that proving the debt in bank- Kleinhaus, 29 Mich. 332.

fuptcy against the new firm, and an 'Smith v. Rogers, 17 Johns. 340;
omission during the life-time of the Clark v. Billings, 59 Ind. 508 ; Chase
retiring partner to allege a claim v. Vaughan, 30 Me. 412; Lewis v.
against him, and a delay of five Westover, 39 Mich. 14 ; Walstrom v.
years to look to his estate, by which Hopkins, 103 Pa. St. 1 18.
the retiring partner had been de- i Heath v. Percival, 1 P. Wms.
prived of the opportunity to partici- 683; 1 Stra. 403. Here E. & P., part-
pate in the distribution in bank- ners, dissolved in 1693, dividing the
ruptcy, were held sufficient. Shaw stock between them, and giving
V. McGregory, 105 Mass. 96, 103, hold- notice to creditors either to receive
ing that receiving and discussing the their money or look to E., who had
old and new bills without objection agreed with P. to pay all debts. In
was sufficient. Both these cases state 1708 a bond creditor i-enewed his
that slight evidence will justify the debt with E., at sixpercent. interest.
inference that the new firm assumed In 1711 E. became insolvent. The
the old debt. creditor could have collected his debt

2 Hall V. Jones, 56 Ala. 493, where before. It was held that P. was still
the creditor demanded payment from liable, but only at five per cent. And
the new firm, and I'eoeived pay- see Harris v. Farwell, 15 Beav. 31.
ments from them, and made no de- 5 Thompson v. Percival, 5 B. &
mand on the ex-partner, was held Ad. 935.

535

§ 620. CONDUCT OF THE BUSINESS.

promise, and if he had promised there was no consideration to
support the promise.

And the course of dealing may he looked to to ascertain the in-
tent, and if thus shown, an agreement need not be proved.' Thus,
proving a debt against the estate of the partner who had assumed
the debts might be equivocal, but receiving a dividend discharges
all claim against the other partner." Receiving a dividend and re-
leasing the new firm releases the retiring partner,^ unless the cred-
itor shows that he did not know of the dissolution and thought it
was the old firm that had gone into insolvency.^ A former attach-
ment against the new firm for the same debt is evidence of an
intent to release the retired partner.'

In Gates v. Hughes, 44 Wis. 332, it was said that if the evidence
was conflicting as to whether the note of a former partner was
taken as payment, the amount and value of the property received
by him, he having agreed to assume the debts, and his ability to
pay the creditor, is material evidence as to whether the creditor
discharged the other partner.

Where a new note has been taken from the continuing partners
when they have assumed payment of the debts, to the prejudice of
the retired partner, another element is introduced, viz., as to how
far a retired partner can claim the rights of a surety, which has
been elsewhere considered. (§§ 532-534.)

§ 520. We have elsewhere 'seen that an incoming partner
does not become liable for the old debts, unless he expressly
agree to be so. But if the new firm does assume the debts
of the old, a tacit agreement on the part of the creditor,
to substitute them as his debtors, and discharge the retired
partners, can be perhaps more easily inferred.

In Shaw v McGrregory, 105 Mass. 96, 102, holding that slight
evidence would justify the inference that the new firm assumed the
debt of the old, it was ruled that receiving and discussing the old
and new bill together, without objection that part was for the old
firm, was sufficient.

1 Bell V. Barker, 16 Gray, 63. 3 Bank of Wilmington v. Almond.

2Bucklini;. Bucklin, 97 Mass. 256; 1 Wliart. 169.
that proving the debt is sufficient, * Buxton v, Edwards, 134 Mass
Eegester v. Dodge, 19 Blatohf. 79 ; 6 567.

Fed. Rep. 6; 61 How. Pr. 107. 5Baum v. Fryrear, 85 Mo. 151.

536

PAYMENT, NOVATION AND MERGER. § 620.

In Hart v. Alexander, 2 M. & W. 484 (7 C. & P. 746), A., B., C.
and D. were bankers, as A. & Oo. A. retired and E. took his place.
The plaintiff, a depositor with the original firm, constantly received
accounts current from the new firm, and they paid him interest
from time to time at varying rates. The court found that the
creditor had knowledge that A. had retired, and that the new firm
had assumed the debts, and held that the discharge of A. followed
from the new dealings, with knowledge of this fact.'

Oakeley v. Pasheller, 10 Bligh, N. R. 548; 4 CI. & Fin. 207, is
like Hart v. Alexander, except that the dissolution was by death ot
a partner, in whose place a new partner was taken in, and the
plaintiff thereafter received accounts in which the old and new
debts were united, and was paid interest.

In Harris v. Lindsay, 4 Wash. 0. C. 98, 271, A. & B. dissolved, A.
assuming the debts, of which plaintiff, a creditor, had notice. A.
formed a new partnership, to which the plaintiff gave credit, and
it dissolved in debt to him. Notes were given foi^ the consolidated
amounts of the old and new debts, but none ol the notes corre-
sponded with any of the balances due from A. & B., and the plaint-
iff agreed to credit A. with the notes when paid. B. was held to
be discharged.

In Watts V. Robinson, 32 Up. Can. Q. B. 362, where one part-
ner retired, and a third person took his place, and the new firm
assumed the debts, a creditor of the old firm taking the note of the
new, with knowledge of these facts, releases the retiring partner.

In'Heroy v. Van Pelt, 4 Bosw. 60, Van Pelt and JST. E. 'Smith were
partners, as Van Pelt & Smith. Smith retired, and J. B. Smith
became partner in his place; the old name being retained. Van
Pelt gave plaintiff a note signed in the firm name, for a debt of the
old firm. Plaintiff sued the old firm for goods sold, and N. E.
Smith claimed the note was a payment. This question was left to
the jury. Here it appeared that plaintiff didnot know of the change
of membership.

Where a firm indebted to the 'plaintiff took in a new partner,
who brought in no capital, and the new firm assumes the debts
of the old, and the accounts are continued without change, and

1 Parke, B., p. 492, doubts David v. former and Ljodge v. Dicas are much
Eaice, 5 B. & 0. 196; 7 D. & R. 690, shaken by Thompson ■;;. Percival, 3
and Barwan v. Kirwan, 3 C. & M. Nev. & M. 167; 5 B. & Ad, 935.
617; 4 Tyr. 491, and says that the

537

§ 521. CONDUCT OF THE BUSINESS.

the creditor is partly paid out of the blended assets of the new and
old firms, and continues his dealing, knowing of the change, and
treating the new firm as his debtors, he can hold them liable for the
balance.'

In Thomas v. Shillabeer, 1 M. & W. 124, the" plaintiif, an em-
ployee of S. & M., a firm, deposited with it a sum of money, as
security for good conduct. The firm dissolved and divided the
business, each partner agreeing to employ part of the servants, and
pay part of the debts; M. to take the plaintiff and pay his debt.
A verdict was ordered for the plaintiff against S. non obstante., on
a plea that plaintiff had assented to discharge S.; for a mere assent
is not an agreement, whereby, in consideration of releasing one
partner, the other undertakes to pay.

§ 521. Old firm must Ibe discharged. — But evidence of a
willingness on the part of the creditor to look to the new-
firm is not sufficient without some evidence of an intention
to discharge the old firm, and of an intention on the part of
the new firm to be liable to him, shown by acts that extend
beyond merely carrying out their agreement with the old
firm, to assume the debts.

In Kirwan v. Kirwan, 2 Cr. & M. 617, plaintiff had money de-
posited with a firm of three partners, A., B. & C, and annual
accounts were rendered to him. B. and C. successively retired, and
A., took in K. as a new partner, with a large amount of capital. The
plaintiff's account was transferred to the new firm, and plaintiff
said he had no claim upon the retired partners. The firm sent an-
nual accounts, and paid interest and part of the principal to the
plaintiff. There was held to be no evidence of assent by the plaint-
iff to look to the new firm alone, and in the absence of such assent
it could not be inferred that K. intended to assume the debt. Bol-
land, J., said that it was conceivable, also, thatK. may have known
nothing about the account, and doubted whether plaintiff could
have sued the new firm.^

In Lewis v. Westover, 2^ Mich. 14, a debtor of a firm sold an
interest owned by him, to one of the partners, on his personal ac-
count, the partner agreeing, as part payment, to settle the debtor's

1 Rolf e V. Flower, L. R. 1 P. C. 37. 2 gee, also, Gough v. Davies, 4
And see Smead v. Lacey, 1 Disney, Price, 200 ; Blew v. Wyatt, 5 C. & P.
239, noticed in § 510. 397.

538

PAYMENT, NOVATION AND MERGER. § 523.

note held by the firm. The fact that the firm was pleased with the
arrangement, and hoped payment of the note from it, and per-
mitted delay in that hope, does not show an agreement to accept
the partner as their debtor, in place of the maker, and the maker
and indorsers are still liable.

§ 522. As against sureties. — As against sureties, however,
a more plain expression of intention than appears from
mere inference may be required.

In Cochrane v. Stewa,rt, 63 Mo. 421, the firm of S. & A. owed
plaintiffs, among other persons, for sewing machines. H. bought
out A.'s interest, and the firm of S. & H. was formed, and the new
firm receired the machines from the old firm, and assumed its debts.
S. & H. then gave a bond to plaintiffs, conditioned to pay them all
the debts of the new firm existing or to be incurred. It was held
that the bond would not be construed to bind the sureties for the
debts of S. & A. to plaintiffs.

See, also, Childs v. Walker, 2 Allen, 259, where C. & C. had given
notes for a firm debt, and then W. joined the firm, which then be-
came C, C. & Co., and the new firm assumed the payment of the
notes. Afterwards one of the C.'s retired, and the two others, C.
and W., gave him a bond to pay the debts of C, G. & Co. The retired
partner was compelled to pay one of the notes, and thereupon sued
on the bond. It was held he could not recover; the reason given
being that the assumption by C, C. & Co. of the debts of C. & C.
did not bring those debts within the terms of the bond until the
creditors had agreed to the substitution.

§ 523. Note or Mil as evidence of novation.— It is certain,
however, that if the agreement to accept one partner as sole
debtor and release the other is accompanied by a change in
the form of the debt, or by new security or additional or
other sureties, the substitution is valid. Thus, if the cred-
itor promises to release one partner and takes the note of the
other for the entire debt, it is a valid substitution of debtors
and the other partner isreleased.^

1 Thompson v. Peroi val, 5 B. & Ad. Farwell, 15 Beav. 31 ; Bensoa ■;;. Had-
935 ; Evans v. Drummond, 4 Esp. 89 ; field, 4 Hare, 33 ; Harris v. Lindsay,
Reed v. White, 5 id. 133; Kirwan v. 4 Wash. C. C. 98 and 371 ; Be Clap, 3
Kirwan, 2 Or. & M. 617; Hart v. Lowell, 336; Tillolson w. Tillotson, 34
Alexaiider, 3M. & W. 484; Harris v. Conn. 835; West v. Chasten, 13 Fla.

539

§ 624. CONDUCT OF THE BUSINESS.

The creditor's agreement with one partjier, that, if he gives notes
for one-half the debt and pays them, he will release him from the
other half, is on valuable consideration and binding. The reasons
assigned in the case cited below are that it gives the creditor equal-
ity in the separate estate with individual creditors, and the maker's
time being extended, he cannot pay and sue his partner for contri-
bution.' It may be observed of these two reasons that the former
would apply to a mere promise to release when there were but two
partners, and the latter reason would not apply when cash instead
of notes is given.

An agreement between two partners and a creditor to submit to
arbitration to divide the assets and determine which partner shoul.l
pay the creditor is suiBcient consideration for the creditor's releas3
of the other.'

§ 524. Note of one partner before dissolution. — Merely
taking the individual note of one partner while the firm is
going on is not deemed to be payment of a partnership debt
so as to be evidence of ah intention or agr^eement to release
the copartners, but collateral merely, and if taken in renewal
of a firm note is not deemed a payment unless such inten-
tion .is proved; while an original transaction contracting
with or charging one partner or sending an account to him
personally has great force in showing that credit was given
to him alone. But the taking security for an existing part-
nership debt, or changing the form of the original charge, is
of very little weight.' Even though such partner give ad-

315 ; Hopkins v. Carr, 31 Ind. 260 ; 431 ; Hoskisson v. Eliot, 62 Pa. St.
Macklin v. Crutcher, 6 Busli, 401 ; 393 ; Nicliols v. Cheairs, 4 Snped, 329
Smith?;. Turner, 9 id. 417; Turnbow Stephens v. Thompson, 28 Vt. 77
V. Broach, 12 id. 455; Williams v. Bowyer v. Knapp, 15 W. Va. 277
Rogers, 14 id. 776 ; Hoopes v. McCan, Gates v. Hughes, 44 Wis. 332 ; Hoef-
19 La. Ann. 201; Meyer u Atkins, 29 linger v. Wells, 47 id. 638; Port t)ar-
.id. 586; Folk u Wilson, 21 Md. 538; lington Harbour Co. v. Squair, 18
■Hotchin v. Secor, 8 Mich. 494; Up. Can. Q. B. 533.
Keerlu Bridgers, lOSni. &Mar. 613; i Ludington i;. Bell, 77 N. "Y. 138
Moore v. Lackman, 53 Mo. 333; (33 Am. Rep. 601). See, also, Max-
Titus V. Todd, 35 N. J. Eq. 458; well tJ. Day, 45 Ind. 509.
Waydell v. Luer, 3 Den. 410 ; Gan- 2 Backus v. Fobes, 20 N. Y. 204.
dolf V. Appleton, 40 N. Y. 533 ; Lud- 3 Loveridge v. Larned, 7 Fed. Rep.
ington V. Bell, 77 N. Y. 138 (33 Am. 294; Tyner v. Stoops, 11 Ind. 23;
Kep, 601); Bank v. Green 40 Oh. St.~ Maxwell v. Day, 45 Ind. 509; Lingen-

540

PAYMENT, NOVATION AND MERGER. § 525.

ditibnal security, as a mortgage upon his own individual
property.'

The individual note of one or all the partners rnay be pay-
ment, and the debt of all may become the debt of one if so
agreed by the creditor. The question of such intent is one
of fact for the jury.^

§ 525. Note of ostensiMe partner. — Taking the note of
ostensible partners is no discharge of a dormant partner, for
the creditor cannot be regarded as intending to part with a
security of which he was ignorant.' Nor will any of the

felser v. Simon, 49 id. 82; Harrison that taking a mortgage ftom one

V. Pope (Iowa Dist. Ct. 1855), 4 Am. partner is an extinguishment of the

Law Reg. (O. S.) 313; Folk v. Wil- debt, Loomis v. Ballard, 7 Up. Can.

son, 31 Md. 538; Hotchin v. Secor, 8 Q. B. 366.

Mich. 494 ; Keerl v. Bridgers, 10 Sm. ^ Thompson v. Percival, 5 B. & Ad.

& Mar. (18 Miss.) 613; Rose z). Baker, 935; Hopkins v. Carr, 31 Ind. 260-

13 Barb. 330 ; Wiison v. Jennings, 4 Maxwell v. Day, 45 id. 609 ; Hotchin

Dev. L. 90; Horsey t). Heath, 5 Oh. v. Secor, 8 Mich. 494; Keerl -u. Bridg-

353; McKee v. Hamilton, 33 Oh. St. ers, 10 Sm. & Mar. 613; Mason v.

7; Tyson v. Pollock, 1 Pa. 375; Allen Wickersham, 4 W. & S. 100; Tyson

u Owens, 3 Spears (S. Ca.), 170; Nich- ■«. Pollock, 1 Pa. 375; Stephens v.

ols V. Cheairs, 4 Sneed, 229 ; Dillon v. Thompson, 38 Vt. 77 ; Dages v. Lee,

Kauff man, 58 Tex. 696 ; Hoeflinger v. 20 W. Va. 584 ; Port Darlington Har-

Wells, 47 Wis. 628 ; Booth v. Ridley, bour Co. v. Squair, 18 Up. Can. Q. B.

8 Up. Can. C. P. 464 ; Port Darlington 533. In Rose v. Baker, 13 Barb. 230,

Harbour Co. v. Squair, 18 Up. Can. A. & B., being partners in buying

Q. B. 538. Oontra, Anderson v. Hen- wheat, C. let A. have $300 which was

shaw, 3 Day, 273. In Maine, Massa- used in buying grain for the firm,

chusetts, Vermont, and formerly in and was regarded by the court as

Arkansas (but not now, see Brug- constituting a partnership debt. A

man v. Maguire, 32 Ark. 733), giving few days afterwards A. gave C. his

a note is prima facie absolute pay- individual note, and a year after-

ment, though rebuttable. If paper wards, and after dissolution, A. paid

is outstanding in .the hands of third part and gave his individual note for

persons, it is to be allowed for as a tiie balance. It was held that C. still

part payment, Getchell v. Foster, 106 had a- claim against the firm.
Mass. 42. • " Robinson v. Wilkinson, 3 Price,

ILoveridge v. Larned, 7 Fed. Rep. 538; Sneed v. Wiester, 3 A. K. Mar.

394 ; Maxwell v. Day, 45 Ind. 509 ; 277 ; Scott v. Colmesnil, 7 J. J. Mar.

Harrison v. Pope (Iowa Distr. Ct. 416; Baring v. Crafts, 9 Met. 380, 394;

1855), 4 Am. Law Reg. (O. S.)313; Watson v. Owens, 1 Rich. L. Ill;

Baxter v. Bell, 86 N. Y. 195 ; Pierce Nichols v. Cheairs, 4 Sneed, 239 ; Vao

V. Cameron, 7 Rich. L. 114; Dillon caro t). Toof, 9 Heisk, 194.
V. Kauffman, 58 Tex. 696. Contra,

541

§ 520. ■ CONDUCT OF THE BUSINESS.

acts which are usually held to be a discharge have that effect
upon a dormant partner for the same reason.^ Perhaps
even though the note be under seal.^

§ 626. Note in firm name after dissoiution. — As a partner
has no power after dissolution to bind the firm by new con-
tracts, a note in the firm name after dissolution, unless
made with the assent of all the partners, binds only the per-
son who made it. Such a note, therefore, does not extin-
guish the debt, for the firm cannot insist that it is bad to
create a debt and yet good to pay one, and the creditor not
having what was designed, namely, a partnership note, no
intent to release the other partners will be presumed on
his part, although he may have surrendered the original
paper.'

In Miller v. Miller, 8 W. Va. 542, M., of M. & Co., in order to
raise money for the firm, procured R. M., who did not know who
the other partners were, to indorse its paper, and K. cashed the
paper, knowing who they were, and the proceeds went into the ,
firm; then C, one of the partners, retired, publishing a notice of
dissolution; then K. agreed to renew the note with the same in-
dorser, and R. M. indorsed the renewal, not knowing of any change

1 Robinson v. Wilkinson, 3 Price, Perrin v. Keene, 19 Me. 355 ; 36 Am.
588. Whether a sealed note by one Dec. 759 ; Parham Sewing Mach. Co.
partner in the firm name, without v. Brock, 113 Mass. 194; Goodspeed
authority, will merge the antecedent v. South Bend Plow Co. 45 Mich. 287 ;
or contemporaneously incurred debt, Yarnell v. Anderson, 14 Mo. 619;
see §430. Moore u Lackman, 53 id. 833; Ver-

2 Chamberlain v. Madden, 7 Rich, non v. Manhattan Co. 33 Wend. 183;
(S. Ca.) L. 395 ; Beckford v. Hill, 124 17 id. 524 ; Gardner v. Conn, '34 Oh.
Mass. 588. Contra, that the sealed St. 187 ; Burris v. Whitner, 3 S. Ca.
instrument merges the simple con- 510; Seward v. L'Estrange, 36 Tex.
tract debt. Davidson u. Kelly, 1 Md. 295; Torrey v. Baker, 13 Vt. 453;
493; Ward v. Motter, 2 Rob. (Va.) Parker v. Cousins, 3 Gratt. 873; 44
536. But a subsequent firm note re- Am. Dec. 388 ; Miller v. Miller, 8 W.
vives the original debt again. David- Va. 542. Contra, that it merges the
son V. Kelly, 1 Md. 493. debt, Fowler v. Richardson, 3 Sneed,

3 Spenceley v. Greenwood, 1 F. & 508. In an action, upon such note re-
F. 397, where it seems "to have been covery upon the original considera-
left to the jury; Myatts v. Bell, 41 tion may be had. Perrin v. Keene
Ala. 233 ; Bayburn v. Day, 37 111. 46 ; and Burris v. Whitner, supra,
Turnbow v. Broach, 13 Bush, 455;

S43

PAYMENT, NOVATION AND MERGER. §527.

in the firm, and ultimately had to pay it. He can recover o£ the
firm, including C, for the renewal is not payment.

In Goodspeed v. South Bend Plow Co. 45 Mich. 237, a firm gave
an order for goods payable in a liote without interest, and the firm
dissolved without notice to or knowledge of the vendor, who shipped
the goods after dissolution, and the partner who had ordered them
sent a note hearing ten per cent, interest after the vendor had
notice of the dissolution. The retiring partners are not liable on
the note, for, although agreed to be given, it varied from the pro-
posed terms, and hence was not binding after dissolution and is
not payment, and they are liable on the original account.

§ 627. Nor is the individual note of one partner after dis-
solution payment of a firm debt without proof of agreement
to that effect/ especially if the partnership note is not sur-
rendered.^

But a mere neglect to surrender the partnership note does not
'invalidate an agreement to accept the note of one partner with a
.third person, as payment, nor constitute failure of consideration.^

Acts and declarations inconsistent with an intent to take the
note merely as collateral may be shown.^ And a surrender of the
partnership note and marking it canceled, and taking the note of
an individual partner, was held to be meaningless unless done for
payment;^ and the note of a third person in exchange for the firm's

1 Swire v. Redman, 1 Q. B. D. 536 ; discharged by an extension of time

Medberry v. Soper, 17 Kan. 369 ; to the primary debtor. § 534. And

Yarnell v. Anderson, 14 Mo. 619; where a note is considered as higher

Leabo v. Goode, 67 id. 136; E!ls- security than a simple contract debt

wanger v. Coleman, 7 Mo. App. 582 ; it may be a merger of it. Isler v.

Rose V. Baker, 13 Barb. 230; Leach Baker, 6 Humph. 85.

V. Kagy, 15 Oh. St. 169; Little v. 2 Estate of Davis, 5 Whart. 530 ; 34

Quinn, 1 Cint. Superior Ct. Rep. 379 ; Am. Deo. 574 ; Little v. Quinn, 1

Estate of Davis, 5 Whart. 530 (34 Cint. Superior Ct. Rep. 379. And see

Am. Dec. 574); Mason, v. "Wicker- Kimberly's Appeal (Pa.), 7 Atl. Rep.

sham, 4 W. & S. 100; Nightingale v. 75.

Chaffee, 11 R. I. 609 (23 Am. Rep. SDages v. Lee, 20 W. Va. 584.

rSl). See, also, Featherstone u. Hunt, ^Bank v. Green, 40 Oh. St. 431.

1 B. &'C. 113; 2 Dow. & Ry. 233. And see Hoopes v, McCan, 19 La,

Unless, in many states, he assumed Ann. 201.

all the debts, so that the other part- 5 Moore v. Lackman, 53 Mo. 323,
ner became in effect a surety, wlio la

543

§ 528. CONDUCT OF THE BUSINESS.

paper was held to be a discharge, except where some of the names
were forged.'

So if the note is accepted as a payment or merger of the debt
the other partner is released." Exchanging a partnership note
'after dissolution for a note signed by each partner was held to have
converted the debt into the separate debt of each partner.' And
so is taking the note of each partner for a proportion of the debt."

Where a firm of two partners assigned for benefit of creditors,
with a condition that the assignment should inure to those alone
who would look to each partner individually for half the balance,
and the creditors covenanted to look to each for the half only, this
was held to be no severance of the debt until or unless the part-
ners covenant individually to pay the half, and hence an action
must be against both.'

§ 528. Of continuing partner who assumed debts. —
Where one of the partners retires and the other assumes the
debts and continues the business, the creditor taking the
paper of the continuing partner shows an assent to the
change and will be deemed to look to the latter alone. This
also involves in many jurisdictions the position of the retir-
ing partner as a surety, who is released by an extension of
time to the principal. This will be next examined.

Thus, in Evans v. Drummond, 4 Esp. 89, two partners gave a
bill and dissolved, and it was renewed by the continuing partner.
The creditor knowing of the change in the firm, the other partner
was held to be released.'

In Thompson v. Percival, 5 B. &-Ad. 925, A. & B., partners, dis-

1 Pope V. Nance, 1 Stew. (Ala.) 354 ; s Le Page v. McCrea, 1 "Wend. 164
Nance v. Pope, id. 230. (19 Am. Dec. 469).

2 Smith V. Turner, 9 Bush, 417; 6 This was followed in Eeed v.
Bowyer v. Knapp, 15 W. Va. 277 ; White, 5 Esp. 123, and Springer v.
Macklin v. Crutcher, 6 Bush, 401. Shirley, 11 Me. 204. In Hoopes v.

sCrooker v. Crooker, 53 Me. 267; McCan, 19 La. Ann. 201, the note

Bowyer v. Knapp, 15 W. Va. 277; was in full settlement. Townsends

Arnold v. Camp, 13 Johns. 409. v. Stevenson, 4 Rich. (S. Ca.) L. 59,

* Maxwell v. Day, 45 Ind. 409 ; but here the firm's notes were sur-
Luddington v. Bell, 77 N. Y. 138; 33 rendered on taking those of the con-
Am. Rep. 601 (rev. 11 J. & Sp. tinning partners. Cowira, Keating u.
557). Sherlock, 1 Cint. Superior Ct. Rep. 357.

544

PAYMENT, NOVATION AND MERGER. § 529.

solyed, B. continuing the business and assuming all the debts, and
having sufficient partnership assets left with him for the purpose.
C, a creditor, who knew of these facts, was informed that A. did
not know that the firm was indebted to him and that he must look
to B. alone, and he assented and drew on B., who accepted the bill.
This was held evidence to go to the, jury of C.'s assent to look to
B. alone. The court, Denraan, C. J., cites Evans v. Drummond
and Reed v. White, and express disapproval of David v. EUice.'

But, even in this case, if the creditor expressly reserves his claim
against the other partners, the note is not a payment.'' And merely
drawing on the continuing partners does not establish a novation.^

§ 529. Note of surTiying partners. — A note by surviving
partners' for a partnership debt will not be deemed a pay-
ment unless such was the agreement,* though the creditor
continue to deal with the surviving partner and receive par-
tial payments from him.^ An agreement to accept the new
firm must be clearly proved.^

If the creditor did not know of the death or other dissolu-
tion, and the new firm is in the same name as the old, their
note is, of course, not an extinguishment of the debt.'

iln Davidu Ellice, 5B. &C. 196; Leach v. Church, 15 Oh. St. 169;

7 D.& R. 690, afHrming 1 0. & P. 368, Titus v. Totld, 25 N. J. Eq. 458; Boat-

A., B. & C, partners, were indebted men's Sav. Instit. v. Mead, 53 Mo.

to D. A. retired. B. & C. assumed 543, but here there was a special

the debts, of which D. had notice stipulation that the estate of the de-

and assented to a transfer of his cedent should not be discharged,

claim upon the books of B. & C. to See Thompson v. Percival, 5 B. &

themselves. He afterwards drew on Ad. 935.

the new firm and they accepted, paid 5 Hamersley v. Lambert, 3 Johns,

part, and became insolvent. It was Oh. 508 ; Fogarty v. CuUen, 49 N. Y.

held that A. was liable, and so al- Superior Ct. 397.

though D. could have collected his ^ Fogarty v. CuUen, 49 N. Y. Su-

debt before. perior Ct. 169; Leach v. Church, 15

2 Bedford v. Deakin, 3 B. & Aid. Oh. St. 169; Bank v. Green, 40 Oh.
310; Boatmen's Sav. Instit. v. Mead, St. 431. Contra, that a note of the
53 Mo. 543. new firm is prima fade a payment.

3 Skannel v. Taylor, 13 La. Ann. Lewis v. Davidson, 39 Tex. 660.
773. ' ' Mason v. Tififany, 45 111. 393; Ber-

4J2e Clap, 3 Low. 236, although the nard v. Torrance, 5 Gill & J. 383;
old note was surrendered ; Thompson Buxton v. Edwards, 134 Mass. 567 ;
V. Briggs, 8 Foster (38 N. H,), 40; First Nat'l Bk. v. Morgan, 73 N. Y.
Mebane v. Spencer, 6 Ired. L. 433; 593(aflf. 6 Hun, 346).
Vol. 1—35 545

§ 530. CONDUCT OF THE BUSINESS.

§ 530. Creditor and debtor becoming partners.— Compli-
cations of an interesting sort occasionally arise by the forma-
tion of a partnership between a debtor and creditor. If the
debt is not implicated in the partnership, no reason is per-
ceived why it is not still enforcible at law as any cause of
action between partners dehors the firm may be, as will be
shown hereafter. And if the debt is contributed by the cred-
itor as his share of the capital, the debtor partner is debtor
to that extent still, and the note representing his debt is
still in force.

In Cunningham v. Ihmsen, 63 Pa. St. 351, A. gave to his cred-
itor I. a bond and warrant to confess judgment. A. & I. then
formed a partnership, I. contributing the bond as his share of the
capital, it being agreed that on dissolution he should have it back.
On dissolution and redelivery of it to I., he entered up judgment
on it, and issued execution, and a subsequent execution creditor of

A. attacked its validity. The court held that, not being fraudulent
in fact as to creditors, it was not merged in the partnership, and a
stranger could not assail it on that ground.

la Mitchell v. Dobson, 7 Ired. Eq. (N. Ca.) 34, A. & B., partners,
gave a partnership note to their creditor C, and then dissolved, B.
assuming all the debts. B. & 0. afterwards formed a partnership;

B. contributing the note as part of his capital. The note was held
not to be thereby extinguished.

In Gulick v. Gulick, 16 N. J. L. 186, A. & B., partners, made a
note to the plaintiff. They then dissolved by A. buying out B. and
assuming all the debts, and giving his note for the purchase money
to B. with the plaintiff as surety. A. and the plaintiff then went
into partnership in the Same kind of business. It was held that
plaintiff could enforce his note against A. & B. His going security
for A. & B. does not release their joint liability. He had a right to
go into partnership with A., and his doing so does not make the
joint liability several.

In an actibn on a partnership note against the surviving partner,
the fact that the plaintiff and the deceased partner had covenanted
to indemnify the surviving partner against debts of the firm, and all
actions on them, was held a bar to the suit to avoid circuity of ac-
tions."

» Whitaker i'. Salisbury, 15 Pick. 534.

516

PAYMENT, NOVATION AND MEEGER. § 531.

Where D., being iadebted to 0. and others, conveyed all his
business to 0., who then conveyed it to F., in trust to pay D.'s debts,
and hold the balance for D. 0. then went into partnership with
F. in the business for some years. Losses having occurred, 0. was
held estopped to enforce the trust, for he has rendered it impossible,
and F. having conveyed the property back to D., and hence O.'s
creditors cannot enforce the trust and collect payment therefrom.'

§ 531. Payment by one exWguishes debt as to alL — Part-
ners being all liable for debts, and being unable to sue each at
law, for reasons elsewhere given, it follows that if one part-
ner pays a debt or judgment he cannot keep it alive by sub-
rogation, but the liability is extinguished, and the payment
is a rnere item in the general account.^

There is no reason, however, for extending the rule to the
purchase by one firm of a note made by another firm hav-
ing a common partner with it, and though the former firm
is under a disability to sue its indorsee is not.'

On the other hand, where the protection of the partner
who pays a debt of the firm makes it equitable, he has been
allowed to keep the debt alive and to be subrogated to the

iWilkinsu. Fitzhugh, 48 Mich. 78. ^0°^ to keep the judgment alive
2Bartlett v. Waring, 4 Ala. 688, against the bail of the other partner,
where the administrator of a de- Holding also that after such pay-
ceased partner paid a judgment ™ent the bail cannot arrest the other
against himself and the survivor, partner, for the debt is paid. Dana
(Contm, Sells u.Hubbell, 2 Johns. Ch. v. Conant, 30 Vt. 246, where one
394) ;HoganuEeynolds, 21 Ala. 56(56 of an indorsing firm took up the
Am. Dec. 236), where one partner fur- note, and subsequently reissued it
nished money to a stranger to pay to his individual creditor. Hardy
the judgment and hold it alive over v. Norfolk Mfg. Co. 80 Va. 404,
the others; Le Page u McCrea, 1 where the partner who paid a debt
Wend. 164(19 Am. Dec. 469); where secured , by mortgage took assign-
the creditor, after compromise by ment of it, and attempted to reas-
one partner against the other, under- sign it to another person. Conrad
took to keeji the other alive. Booth v. Buck, 21 W. Va. 396, where the
V. Farmers' & Mech. Bk. 74 N. Y. 238 assignee of one partner for benefit
(aff, 11 Hun, 258), a judgment on a of creditors paid a firm note to pre-
note signed by four partners, and vent its being sued in order that he
indorsed by the fifth ; the latter paid might sell property at his leisure;
it J he cannot hold it over the others, he does not become assignee of the
Hinton v. Odenheimer, 4 Jones, Eq. note.

406, where the paying partner undier- s Fulton v. Williams, 11 Gush. 108L

547

g 531. CONDUCT OF THE BUSINESS.

securities or the judgment incident to the debt. This is not
allowed that he may make a profit out of it, but solely as a
protection.'

Thus where a partner pays a debt of the firm out of his own
money which the firm should have paid, he can do so in such a
way as to show an intent to keep the debt alive.'

So an administraitor of a partner who paid the whole of a part-
nership debt has been substituted to the creditor's place to recover
contribution from the surviving partner.' Or. if a partner pays a
mortgage on joint property which the other should have paid, he
can require indemnity through the mortgage;^ and so if he pays
a judgment note which it was agreed on dissolution should be paid
by the copartner.'

Where a note, and mortgage on partnership property securing
it, were made by a firm, a partner was deemed entitled to insist on
foreclosure before personal judgment against him on the note, and
if sued on the note, and has to pay it, it was held would be subro-
gated to the mortgage."

Bnt a partner who has partnership funds in his hands has no
such right. Thus where a firm, with others, became incorporated,
but by reason of continuing business in the firm name are made
liable to a creditor of the corporation; and after the death of one
partner the corporation assigns for the benefit of creditors to the
surviving partner, and he pays a judgment creditor in full, having
assets of the corporation to do it with, but for fear of being liable

1 Coleman v. Coleman, 78 Ind. 344 ; signee could. He was not an active

Booth V. Farmers' & Mech. Bank, 74 partner. Chappell v. Allen, 38 Mo.

N. Y. 338 (afif'g 11 Hun, 358), where 313, where a partner who had taken

a judgment was allowed to stand as up partnership notes with his own

security for any balance that might money was allowed to assign them

be found due on an accounting. to pay his private debt.

. JMclntire v. Miller, 13 M. & W. sin Sells v. Hubbell, 3 Johns. Ch.

735, where a member of a joint stock 394; Dahlgren i). Duncan, 7 Sm. &

company, making such payment, Mar. 380; but contra, Bartlett v.

had the debt transferred to a trustee Waring, 4 Ala. 688, supra,

for himself. Kipp v. McChesney, 66 * Laylin vl Knox, 41 Mich. 40.

lU. 460, where a partner in a sort of 5 Brown v. Black, 96 Pa. St.. 483 ;

joint stock concern bought its notes Suydam v. Cannon, 1 Houst. (Del.)

with his own money as an invest- 431, and see the cases cited in the

ment, it was held that, though he next section.

could not sue upon them, his as- ^ Wairen v. Hayzlett, 46 Iowa, 235,

548

PAYMENT, NOVATION AND MERGER. § 532.

to otter creditors of the corporation seeks to charge the payment
as made by himself instead of by the fund, and attempts to re-
cover one-half of it from the estate of the deceased partner, it was
held that he should have charged the fund and could not tecoTer.'

RETIRING PARTNER AS SURETY.

§ 532. Inter se. — Where a. partner retires from the firm
under an agreement by the continuing partners to assume
or pay all liabilities, he acquires as between the partners,
irrespective of the rights of creditors, which will be here-
after considered, the rights Of a surety. Hence, if he is
compelled to pay a debt of the firm, he can set off the
amount against the continuing partners' clfiim against him.^
And a debt of the firm which he is compelled to pay will be
kept alive for his benefit, or he can have the judgment as-
signed to him;' and he is entitled to be subrogated to all
securities held by or for the creditor,^ and to participate with
creditors of the new firm on distribution of its assets in
insolvency or bankruptcy.' On being sued, he can apply to
court to compel the continuing partners to pay debts.*

If the continuing partners have given the retired partner a
bond, with security, conditioned to pay off liabilities and become

1 Willey u Thompson, 9 Met' 339. Frow, Jacobs & Co.'s Appeal, 73 Pa.

2Rodgers v. Maw, 15 M. & W.444; St. 459; Scott's Appeal, 88 idi 173.
S. C. 4 Dow. & L. 66 ; or sue them in ^ Frow, Jacobs & Co.'s Appeal,

assumpsit, Shamburg v. Abbott, 113 supra; Moody v. King, 3 B. & C. 558.
Pa. St. 6; Hupp v. Hupp, 6 Gratt. «See §§554, 634-641, and West v.

310. Chasten, 13 Fla. 315; and see Kin-

3Suydam v. Cannon, 1 Houst. ney v. McCullough, 1 Sandf. Ch. 370;

(Del. ) 431, of a judgment ; Chandler queried but not decided in Croone

V. Higgins, 109 111. 602; Laylin v. v. Bivens, 2 Head, 339; and so

Knox, 41 Mich. 40 ; Frow, Jacobs & though the others have not assumed

Co.'s Appeal, 73 Pa. St. 459; Brown the debts. Moras v. Gleason, 64 N.

V. Black, 96 id. 483; Redfibld, C. J., Y. 304 (aff. 3 Hun, 31 ; 4 Thomp. &

in ^tna Ins. Co. v. Wires, 38 Vt. 93. C. 374); Ketchum v. Durkee, Hoflf.

And see Soott's Appeal, 88 Pa. St. Ch. 538; and if they misapply the

173. assets are individually bound to re-

i Conwell V. McCowan, 81 111. 285 ; Imburse him for payments, Peyton

Johnson v. Young, 20 W. Va. 614 ; v. Lewis, 13 B. Mon. 356.

549

g 53S. CONDUCT OF THE BUSINESS.

insolvent, the payee of a firm note may avail himself of the bond
as in other cases of securities held by a surety.'

Whether, if the continuing -partner, wlio has agreed to pay the
debts, goes into bankruptcy, the retired partner can prove his
claim as surety as the holder of a contingent claim, and hence, if
he fails to do so, the claim is discharged by a discharge in bank-
ruptcy of the debtor.'

Where retired partners thus become sureties and the new firm
creates a debt, and by collusion with the creditor procures him to
recover judgment against them with the new firm, and the retired
partners pay part of it in separate sums, it was held that they
could join in an action against the actual partners.'

§ 533. As to creditors; English cases. — In 1836 the House
of Lords, in Oakelej v. Pasheller, 4 Clark & Fin. 207; s. c.
10 Bligh, N. E. 548, applied the doctrine of the suretyship
of a retired partner to a creditor, and held that if a part-
ner retires, and his copartners, continuing, assume the
debts, and a creditor of the firm is aware of this (the syl-
labus is of course wrong in stating that the creditor had
no notice), the continuing partners alone are the principal
creditors, and the retiring partner but a surety for them,
even as to the creditor, and with the rights of a surety, and
therefore a contract between the creditor and continuing
partners extending the time of payment releases' him. In
fact, however, in that case, a third person had become
partner with the continuing members, and the creditor's
taking the bond of such new firm for the extended debt
was a substitution of debtors or novation, and therefore
a release independent of the assumption of suretyship of the
retiring partner. /

In Rodgers v. Maw, 15 M. & W. M4; s. c. 4 Dow. & L. 66, the
exchequer in 1846 applied the doctrine as between the partners, so

iBurnside v. Fetzner, 63 Mo. 107; McLean, 11 Md. 93. For other rul-

Wilson V. Stilwell, 14 Oh. St. 464 ; ings that the retired partner is inter

and see § 636. se a surety, see Morss v. Gleason, 64

2 So held in Fisher v. TiflEt, 137 N. Y. 204 (s. C. below, 3 Hun, 81;

Mass. 313. Contra, Fisher v. Tifft, 4 Thomp. & C. 374) ; Bays v. Conner,

13 R. I. 56; s. c. with note, 18 Am. 105 Ind. 415.

Law Reg. (N. S.) 9, and Berry v. s In Abbot v. Johnson, 83 N. H. 9.

550

PAYMENT, NOVATION AND MERGER. § 53S.

that a debt assumed by the continuing partners, which the retired
partner had to pay, could be set off by him against their claim, on
his agreement to pay them a certain sum in consideration of their
assumption of debts. This case is undoubtedly good law here and
in England.

In Oakford v. European and Am. Steam Shipping Co. 1 Hen. &
Mil. 182 (Cases in Chancery, 1863), Oakeley v. Pasheller was called,
p. 190, a strong decision, and was held not to be extended to dis-
charge the retired partner by reason of acts within the scope of the
continuing partners' powers. And where a contract between the
original firm and a third person provided for the submission of dis-
putes to arbitrators, one of whom was to be selected by the firm,
his selection by the continuing partners alone, and waiving a
doubtful point of construction, was held not to discharge the retired
partner.

In Wilson v. Lloyd, L. R. 16 Eq. 60, the doctrine of Oakeley v.
Pasheller was applied in 1873, to the effect that a composition in
bankruptcy, whereby creditors agreed to take their claims from
the continuing partners in instalments, was held to release the re-
tired partner by extending the time. This decision is of doubtful
authority in either country, for in Ex parte Jacobs, lO Ch. App.
211, it was disapproved, and a creditor voting to release a debtor
in bankruptcy was held not to release a co-debtor. The debt in
this case was, however, a several note signed by each.

In 1876, in Swire v. Eedman, 1 Q. B. D. 536, Cockbueu", C. J.,
reading the opinion explaining Oakeley v. Pasheller, and showing
that Maingay v. Lewis, Irish Reports, 5 Com. L. 229, reversing s. c.
3 id. 495, which had followed the doctrine under protest, and by
a bare majority had misunderstood the case in not understanding
that the creditor had assented to a substitution of debtors, holds
that partners cannot change their relation to their creditor without
his assent; and though one may become inter se a surety, yet the
creditor can treat all as principals, and therefore does not discharge
a -retired partner by giving time on fresh acceptances to the con-
tinuing partner who had agreed to pay debts. This ruling is
weakened by his finding that a previous habit of the partners to
renew by such acceptances before dissolution was a species of
authority (which I submit it is not).

In Bedford v. Deakin, 2 B. Aid. 210; s. o. 2 Stark. 178, there had
been an express reservation of rights against the retired partner:

551

§ 534. CONDUCT OF THE BUSINESS.

and in Little v. Quinn, 1 Cint. Super. Ct. 379, the old note had
been retained, and the remedy upon it had therefore not been ex-
tended."

§534. American cases. — In America the authorities

are divided as to whether a retired partner has the rights of
a surety against a creditor who knows of the fact that the
continuing partner has assumed the debts. Following the
supposed doctrine of Oakeley v. Pasheller, and holding that
he has such right, and is therefore discharged by a binding
extension of time on the debt, given without his assent, or a
compromise of the debt, or release of security of the prin-
cipal, are the following.^

Voting for the discharge in bankruptcy of the continuing part-
ner on composition of his debts is not regarded as a compromise,
but a discharge by operation of law, and does not release the retired
partner.'

In McClean v. Miller, 2 Cranch, C. C. 620, where the continuing
partner with the creditor's knowledge received all the effects, and
agreed to pay the debts, and the creditor makes new advances to
him on his individual account, it was held that the creditor could
not in good conscience take a lien on the effects for the new debt,
so as to render the retiring partner liable on the old, after the assets
were exhausted.

In McNeal v. Blackburn, 7 Dana, 170, it was held that when the
creditor became security for the continuing to the retiring part-

i That neglect to pursue a surviv- Hun, 103) ; Palmer v. Purdy, 83 id.

ing partner is no discharge of the 144; Morrison v. Perry, 11 Hun, 33;

estate of the deceased partner, see Doddu Dreyfus, 17Hun, 600 ;57How.

Surviving Partner. Pr. 319 (latter report is best); Math-

2Stone V. Chamberlin, 30 Ga. 259; ews v. Colburn, 1 Strob. (S. Ca.) L.

Hoopes V. McCan, 19 La. Ann. 201 ; 358 ; Johnson v. Young, 20 W. Va.

Barber v. Gillson, 18 Nev. 89; Bell v. 614; Gates v. Hughes, 44 Wis. 383;

Hall, 5 N. J. Eq. 477 ; Wilde v. Jen- Birkett v. McGuire, 31 Up. Can. Com.

kins, 4 Paige, 481 ; Thurber v. Corbin, PI. 430. And see Smith v. Shelden, 35

51 Barb. 315; s. C. as Thurber v. Jen- Mich. 43, and cases cited in § 533.

kins, 36 How. Pr. 66 ; Maier v. Cana- In Bays v. Conner, 105 Ind. 415; the

van, 8 Daly, 373 ; Savage v. Putnam, creditor had apparently agreed to

33 N. Y. 501 ; Millerd v. Thorn, 56 id. the substitution of debtors.

402; Colgroye v. Tallman, 67 id. 95 3 Hill v. Ti-ainer, 49 Wis. 537; Ex

pa Am. Eep. 90) ; (afE. 3 Laus. 97 ; 5 parte Jacobs, 10 Ch. App. 311.

553

PAYMENT, NOVATION AND MERGER. § 534.

ner that all debts should be paid, he has released the retiring
partner.

Agreeing with the latest English doctrine, and holding
that mere knowledge on the part of a creditor of the new
arraijgement of the partners does not make him a party to
it, and that they cannot change their relation towards him
without his assent, are the cases in the subjoined note.^

Nor can he notify the creditor to sue pursuant to the statute, for
the statute only applies to those who were sureties from the be-
ginning.''

In Rawson v. Taylor, supra, it was said that such agreement,
with notice, would impose on the creditor the duty of acting in
good faith and with reasonable diligence in the preservation of liens
and application of payments.

In Faulkner v. Hill, 104 Mass. 188, partners pledged goods as
collateral for a debt then due and dissolved, conveying all the assets
to one who agreed to pay all the debts, and they empowered him
to wind up, execute releases, etc., of all of which the pledgee had
notice, but did not agree to substitute L. as his debtor. L. paid
part of the debt and took back from the pledgee what was thought
to be a proportitinal part of the yalue of the collateral, but in fact
a much more valuable part; hence the sale of the rest did not pay
the remainder of the demand, L. having died insolvent; but this
excessive delivery to L. was held not to be such a dealing with the
collateral as to make the pledgee answerable for more than he had
received — the syllabus adds, the invoice not showing that it was
excessive, but this is not in the opinion.

Where one partner retired, leaving assets with the other partner
for the purpose of paying debts, and a creditor covenanted with the
latter partner, on receiving security for part of the debt, not to sue
him; and consented to his delivering part of the assets to a surety
for the firm, this does not release the retired partner beyond the

1 Mason v. Tiffany, 45 111. 393; Will- Barb. 461, and Ward v. Woodburn,

iams V. Boyd, 75 Ind. 286 ; Aiken v. 37 id. 346, which of course are not

Thompson, 43 Iowa, 506 ; Smith v. law in so far as inconsistent with the

Shelden, 35 Mich, 43; 34 Am. Eep. holdingsof the court of appeals given

539 ; Hayes v. Knox, 41 id. 539 ; Raw- in a preceding section. See, also, Nor-

Bon V. Taylor, 30 Oh. St. 389; 37 Am. ton v. Richards, 13 Gray, 15, as lim-

Rep. 464 ; Whittier v. Gould, 8 Watts, ited by Fisher v. Tifft, 137 Mass. 313.
485. See, ailso, Umbargeri;. Plume, 36 2 pensler v. Prather, 43 Ind. 119,,

553

§ 535. CONDUCT OF THE BUSINESS.

secured part of the debt, because the assets delivered to the surety
were not lost to the defendant partner. The fact that the surety
did not use them to pay debts makes no difference, for that is not
the creditor's fault.'

MERGER.

The subject of the merger of a debt m a sealed instrument
has already been treated.^

§535. Judgment against one partner. — The doctrine of
the merger of a debt in a higher security applies to a judg-
ment on a partnership debt obtained against one or less than
all the paiouers. The nearly universal rule is that this ex-
tinguishes recourse on the partners who were not made
parties, though judgment is not collectible on execution.
The contrary; rule laid down in Sheehy v. Mandeville, 6
Oranch, 254, after being disapproved in England and in
nearly every state of the Union, has been since in effect
overruled by the supreme court of the United States.'

1 Roberts v. Strang, 38 Ala, 566. son, 13 Mass. 148 ; Tinkum v. O'Neale,

2 § 420. 5 Nev. 93 ; Stevenson v. Mann, 13 id.
s Brown v. Wooton, Cro. Jac. 73; 268, 374; Nat'l Bank v. Sprague, 20

Kendall v. Hamilton, 4 App. Cas. N. J. Eq. 13, 31 (reversed on other
504 ; S. C. below, 3 0. P. D. 403 ; Ex points; in 31 id. 530) ; Robertson v.
parte Higgins, 3 DeG. & J. 33; Cam- Smith, 18 Johns. 459; Penny v. Mar-
befort V. Chapman, 19 Q. B; D. 229 ; tin, 4 Johns. Ch. 566 ; Peters v. San-
Mason V. Eldred, 6 Wall. 231 ; 7 Am. ford, 1 Den. 224 ; Averill v. Louoks, 6
Law Reg. (N. S.) 402; Wood worth v. Barb. 19; Olmstead v. Webster, 8 N.
SpaflEord, 2 McLean, 168; Sedam v. Y. 413;Suydam v. Barber, 18 id. 468
Williams, 4 id. 51 ; Re Herrick, 13 (rev. 6 Duer, 34) ; Sloo v. Lea, 18 Oh.
Bankr. Reg. 312 ; Filley v. Phelps, 18 279 ; Anderson v. Levan, 1 Watts & S.
Conn. 394, 305; Suydam v. Cannon, 1 334; Smith v. Black, 9 Serg. &R. 142;
Houst. 431 ; Nicklaus v. Roach, 3 Ind. 11 Am. Dec. 686 ; Nichols v. Anguera,
78; North v. Mudge, 13 Iowa, 596; 2 Miles (Pa.), 390; Gaut v. Reed, 34
Wann v. McNulty, 7 111. 355; 43 Am. Tex. '46, 55; How v. Kane, 2 Pin.
Dec. 58 ; Thompson v. Emmert, 15 id. (Wis.) 531; S. c. 2 Chand. 222; 54 Am.
415; Crosby v. Jeroloman, 37 Ind. Dec. 153. There are a few author-
364; Barnett v. Juday, 38 id. 86; Hoi- ities to the contrary. Sheehy v. Man-
man V. Langtree, 40 id. 349 ; Lingen- deville, 6 Cranch, 254 (now overruled,
felser v. Simon, 49 id. 82; Scott v. as already stated); Watsonu. Owens,
Colmesnil, 7 J. J. Mar. 4l6;Moale'y. 1 Rich. (S. Ca.) L. Ill, and Union
Hollins, 11 Gill & J. 11; Loney Bank i>. Hodges, 11 id. 480, in both
V. Bailey, 43 Md. 10 ; Ward v. John- of which cases the non-joined part.

554

PAYMENT, NOVATION AND MERGER. § 537.

Although the partners who were not made parties were
secret partners, yet all claim against them individually is
merged.^

§ 536. A judgment against ostensible partners neverthe-
less binds the interest in the partnership assets of dormant
partners who were not made parties to the action.^ And
where some of the partners plead the personal privilege of
infancj'', and judgment is therefore against the adults only,
it is a partnership debt, and entitled to share on distribu-
tion pari passu with judgments where no such plea was
interposed.'

In Olmstead v. Webste^, 8 N. Y. 413, it was held that the vacat-
ing of the judgment by mutual agreement of the plaintiff and the
defendant partner would not revive the cause of action against
the other partner. Probably, however, this cannot be so; for as
the judgment no longer exists, the doctrine of merger cannot ap-
ply; and on the doctrine of election, the right to retract is open
until judgment, and besides there could be no election when as
here the other partner was unknown.

§ 537. Where partners are jointly and severally liable. —

A judgment against one partner upon a joint and several
debt is not a merger of, the several liability of the other
partners.*

ners were unknown to the plaintiff. Anguera, 2 Miles (Pa. ), 390 ; How v.
Arid, vice versa, it has been held that Kane, 2 Pin. 531 ; s. C. 2 Chand. 232
a joint judgment against all the part- (54 Am. Dec. 152) ; Mason v. Eldred,
hers bars action on a note given by 6 Wall. 231, 338; 7 Am. Law Reg.
one or more of them ^or the same (N. S.) 403. Contra, Watson v.
debt. Doniphan v. Gill, .1 B. Mon. Owens, 1 Rich. (S. Ca.) L. Ill, and-
199. But see the principle stated in Union Bank v. Hodges, 11 id. 480.
§537, ' 2 §1053.

1 Kendall v. Hamilton, 4 App. Gas. 3 § 149.
504; Lingenfelser v. Simon, 49 Ind. 4 King v. Hoare, 13 M. & W. 495;
83 ; Scott v. Colmesnil, 7 J. J. Mar. Traf ton v. United States, 3 Story, C.
416; Moale v. Hollins, 11 Gill & J. O. 646; Sherman?;. Christy, 17Iowa,
11; Penny v. Martin, 4 Johns. Ch. 333; Pierce v. Kearney, 5 Hill, 83;
566; Robertson v. Smith, 18 Johns. Gilman «. Foote, 33 Iowa, 560, where
459; Olmstead v. Webster, 8 N. Y. one partner individually signed a
413; Anderson v. Levan, 1 Watts & note made by his firm, and a judg-
S. 334; Smith v. Blalck, 9 Serg. & R. ment on his several liability as
143 (11 Am. Dec. 686) ; Nichols v. maker was held not to merge the

555

§ 538. CONDUCT OF THE BUSINESS.

In some states there are statutes providing that a firm
debt, either generally or on negotiable paper, shall be re^
garded as joint and several, or permitting a judgment to
be had against some of the joint debtors without operating
as a merger, as in Alabama, Arkansas, Colorado, Dela-
ware, Illinois, Kansas, Kentucky, Maryland, Missis-
sippi, Missouri, Montana, New Jersey, New Mexico,
, Pennsylvania and Tennessee. ^

It was held, also, that where the other joint debtor was
out of the jurisdiction a judgment against the resident was
not a merger.''

In Suydam v. Barber, 18 N. Y. 468 (reversing 6 Duer, 34), it was
held that as a judgment in Missouri against one partner was not a
merger the same effect would be given here to the judgment.'

§ 538. When the note of one partner is taken as collateral
merely, or if the note of a new firm or of one partner after
dissolution is not a payment of the original debt, a judg-
ment upon the new note, if not paid, has no greater effect
than the note itself had.^

claim against the Arm. But see the 2 Ells v. Bone, 71 Ga. 466 ; Yoho v.
query in Smith v. Exchange Bank, McGovern, 43 Oh. St. 11 ; but in the
26 Oh. St. 141, 153, as to a judgment latter state at least, the proper course
against a drawer who is also a mem- is to make all the partners parties,
ber of the firm which accepted a take judgment against those on
bill. whom service was had, and file a

1 William v. Rogers, 14 Bush, 776; petition to make the others parties
Bryant v. Hawkins, 47 Mo. 410, and to the judgment.
Suydam v. Barber, 18 N. T. 468, also 3 s. p. Mason v. Eldred, and Reed
on the Missouri statute ; Loney v. v, Girty, 6 Bosw. 567, which case is
Bailey, 43 Md. 10; Hyman v. Stad- a later stage of Suydam v. Barber,
ler, 63 Miss. 363; Bennett v. Cadwell, supra.

70 Pa. St. 353; Lowry v. Hardwicke, ^oflutt v. Scott, 47 Ala. 104, 139
(4 Humph. (Tenn.) 188, and Nichols Brozee v. Poyntz, 8 B. Mpn. 178
V. Cheairs, 4 Sneed, 339; and in Ma- Hawks v. Hinchcliff, 17 Barb. 493
son ?;. Eldred, swpra, it is said/ that Bigelow w. Lehr, 4 Watts, 878 ; Davis
a statute of Michigan providing that v. Anable, 2 Hill, 339 ; First Nat')
such judgment is, in favor of the B'k v. Morgan, 78 N. Y. 593 (6 Hun,
defendant, only evidence of the ex- 346) ; Kauffman v. Fisher, 3 Grant's
tent of plaintiff's demand, alters the Cas. (Pa.) 303; Watson v. Owens, 1
rule and permits a further recovery Rich. L. Ill; Haslett v. Wother-
against the rest. spoon, 2 Rich. Eq. 395 ; Carruthers

556

PAYMENT, NOVATION AND MERGER. § 539.

In one case one partner confessed a judgment against himself
alone without the creditor's knowledge or ratification; this was
held, of course, not to merge the original right of action against
the firm." And it is enacted that a judgment against some of
joint debtors shall not bar action against the rest in District oe
Columbia, Iowa, EENTtrcKT, Missouri, New Mexico and Ver-
mont.

§ 539. This rule of merger has no application to a claim'
against a firm where one partner is alive and the other dead.
The rule that the decedent's estate cannot t»e pursued unless
there are no available firm -assets nor living solvent partner
prevents a merger, for the debt is no longer joint.^

V. Ardagh, 20 Grant's Ch. (Up. Can.) ence that the creditor could and did

579. See Thurber v. Jenkins, 36 pursue the estate first, his remedy

How. Pr. 66; s. c. as Thurber v. against the surviving partner was

Corbin, 51 Barb. S15, but here the not thereby merged. See First Nat'l

note itself would have discharged B'k v. Morgan, 73 N. Y. 593 (afl'g 6

the retired partner. Hun, 346). That a judgment against

^Haggerty v. Juday, 58 Ind. 154. the survivor bars proceedings at law

See similar authorities under the against the estate of decedent, leav-

subject of release of one partner. ing a remedy in equity only. Phil-

^Hence in In re Hodgson, 31 Ch. son v. Bampfleld, 1 Brev. (S, Ca.)

D, 177, it was held to make no differ- 202.

557

CHAPTEE XII.

CONVERSION OF JOINT INTO SEPARATE PROPERTY.

§ 540. In speaking of the nature of a partner's share or
interest in the firm (§ 180), it was shown that such interest
was in effect a right to share in the surplus left after dis-
charging all debts, and including the claims of individual
partners for advances. Each partner has the right to re-
quire that all the assets be applied to the payment of debts,
for otherwise his own liability in solido for them all would
be undiminished. This is a right which appertains to him
personally, and not to the partnership creditors. In case
the assets pass under the control of the courts for distribu-
tion, either by reason of bankruptcy, death, or suit for ac-
counting and dissolution, not only will the rights of the
partners to have the debts paid be carried out, but the court
will subrogate the creditors to this right, and treat it as an
obligation, provided it had not been parted with by the part-
ners at the time the court came into possession of the fund.
This doctrine of the partner's lien passing to the creditors,
when the court is distributing the funds, is extended further
in some jurisdictions than in others, and in many is accom-
panied by recognizing a correlative ppority of separate cred-
itors in individual property. These ramifications of the
doctrine will be explained hereafter.'

Partners have the same right to terminate their joint in-
terest in any part or all of the property that they have to
dissolve by mutual agreement. This can be done by divid-
ing the property among them, or by selling, or giving a part
of it to one of their number, or by one buying out his co-
partners."

1 § 825. to settle partnership accounts is

2 After the fund has passed into pending, the court may refuse to en-
the control of court, as where a suit force a give or take contract between

558

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 541.

§ 541. Inchoate transfers inter se.^An agreement for
the conversion into separate property is not effectual to
pass title until it is executed. The law of sales rather than
of partnership applies to this. -While the division is in-
choate or conditions unperformed, the property continues
joint, although divided into parts.

Thus after a mere dissolution and retirement of a partner, with-
out an assignment of his interest to the continuing partner, the
property will be treated in bankruptcy as still joint estate,' though
accompanied by a request to pay to one partner.'' Contra where
the notice announces that the retired partner has sold his interest."
And in the case of real estate, mere agreement, not sealed or re-
corded, does not convert it into separate property, but the title must
be divested.^ Actual separation into parcels, assigning one parcel
to each, terminates the joint ownership, so that each can sue the
other for possession."

So, where a division is to be accompanied by giving security, the
mere separation and taking possession does not divide or vest the
title until the agreement is executed.* But if the seller allow the
buyer to continue to transact business, and dispose of the assets as
his own, without giving the indemnity, he cannot recall the prop-
erty.' So if one partner oh dissolution takes out what he deems
to be his share, but the rest is afterwards lost, he must account to
the other partners for the part withdrawn.^

If land is conveyed to one of three partners, by a debtor of the

t

the partners as, to parts of the prop- the business (croppers) is to divide

erty, if the state of the accounts ren- the crop into parts, and give each

der this advisable, and one of the possession of part as his separate

partners is resisting it. Buckingham crop, without intention to terminate

V. Ludlum, 29 N. J. Eq. 845, 360. joint ownership, for then the posses-

'i^ Ex parte Cooper, 1 M. D. & DeG. sion of one is the possession of all.

358. Usry v. Rainwater, 40 Ga. 328.

^ Ex parte Sprague, 4 DeG. M. & 6 Fitzgerald v. Cross, 20 N. J. Eq.

J. 866. 90 ; Ex parte Wheeler, Buck, 25 ;

3 Armstrong v. Fahnestock, 19 Md. Ex parte Wood, 10 Ch. D. 554.

58. ' ' Tracy v. Walker, 1 Flip. ,41 ; 3

4 Jones V. Neale, 2 Patt. & H. (Va.) West Law Month. 574.

339. ' Allison v. Davidson, 3 Dev. (N.

6 Hunt V. Morris, 44 Miss. 314; Ca.) Eq. 79. And see Solomon v.
Koningsburg v. Launitz, 1 E. D. Solomon, 3 Ga. 18.
Smith, 215. Contra if the usage of

559

§ 54a. CONDUCT OF THE BUSINESS. .

firm, in payment of a debt, and the grantee conveys part to one of
the other partners as his share, the whole is converted into separate
property, not only the part conveyed, but the part held by him for
himself and the third partner, for if the share of one ceased to be
partnership property the rest did also.'

§ 54:3. To defeat the priority of joint creditors the con-
summation of an executory contract to sell a share must be
clearly proved.

Thus, where G. & A., partners, indebted to K., agreed to con-
tinue business until January 1st, and A. should then ta,ke the
assets and pay the debts, but A. died before that date, appointing
G. & M. his executors, G. continued business and paid A. in full,
but finding A.'s estate insolvent brought suit against K. for the
return of the paj'ment over a pro rata dividend, it was held that
the transfer to defeat priorities of creditors must be clearly proved,
and assets in the hands of G. would be deemed to be held by him
as surviving partner and not as executor. Hence, that his pay-
ment to K. was as surviving partner, and as in that capacity he
need not pay pro rata, the payment cannot be got back."

An appropriation may be revoked if not fully executed. Thus,
a consent that a partner may apply a check to his individual debt
is revocable before such application by notice.'

But the transfer is none the less final because accompa-
nied by a stipulation that deficiencies or excess in the final
settlement of the interest of such partner shall be equalized
by his paying or receiving, or even by his restoration of part
of the property, without specifying any particular part.*

1 Smith V. Eamsey, 6 111. 373. If ' National Bank u. Mapes, 85 111; 67.

the title to land is in one partner, < Mafflyn v. Hathaway, 106 Mass.

and on his death the other partner 414; Sharpe v. Johnston, 59 Mo. 557;

presents a claim against the estate Murchison v. Warren, 50 Tex. 27.

for his advances in its purchase, he And see Beckwith v. Manton, 12 E.

may withdraw the claim and is not I. 442, where two partners holding

estopped thereby, if such presenta- the legal title to land give to the

tion and abandonment of the land as third a contract to convey a tract as

partnership property, and an assent his estimated share of the profits,

to its being regarded as individual, and he gives in return a receipt for a

Way V. Stebbins, 47 Mich. 296. sum of money to bear seven per cent.

'i Kreis v. Gorton, 28 Oh. St. 468. The receipt has become joint prop-

560

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 543.

§543. Choses in action. — Choses in action may be di-
vided by any assignment that would be sufficient to trans-
fer them from one individual to another as by transfer to
each other. ^ Thus the firm may indorse a note payable to
it to one partner; '^ or, if a single claim, by release of in-
terest by one to the other, or indorsement by one joint
payee to the other;' or by procuring the debtor to make a
note or other promise to each partner for his proportion of
the debt.*

So where a person who has collected funds for two part-
ners pays one of them his share, the balance may be re-
garded as belonging to the other, and his separate creditors
can attach it if there do not appear to be any partnership
creditors.' Or by one partner making his note to the other.
Such notes form no part of the firm's assets.*

So division may be inferred, as where a firm of attorneys received
a claim for collection, and, after dissolving, one does all the work
of collecting, the jury may, in a suit by him in his own name, find
that it was awarded to him by the terms of dissolution.'

Where the firm's bank account was kept in the name of one
partner alid mixed with his private funds at the wish of the other
partners, and they were consulted as to the propriety of leaving
the funds in the bank after its paper had begun to depreciate, loss

erty in place of the land, and a con- 3 Sneed v. Mitchell, 1 Hayw. (N.

veyance can be required independent Ca.) 289.

of the state of accotints. ^ Morse v. Green, 13 N. H. 33 (38

1 Lawrence v. Vilas, 20 Wis. 381 ; Am. Dec. 471) ; Marlin v. Kirkey, 23
McLanahan v. EUery, 3 Mason, 267; Ga. 164; McDougald v. Banks, 13
Rowand v. Eraser, 1 Rich. (S. Ca.) L. Ga. 451 ; Shafer's Appeal, 106 Pa. St.
325; Jackman v. Partridge, SI Vt. 49.

558; Belknap v. Cram, 11 Oh. 411; 3 Robinson v. Moriarity, 2 G. Gr.

Mechanics' Bank v. Hildreth, 9 Cush. (Iowa) 497; Harlan v. Moriarty, id.

356. 486.

2 Merrill v. Guthrie, 1 Pin. (Wis.) ^Lamkin v. Phillips, 9 Porter
435; Stevenson v. WoodhuU, 19 Fed. (Ala.), 98; Waterman v. Hunt, 3 R.
Rep'. 575; Baring v. Lyman, 1 Story, I. 398, 303; Belknap v. Cram, 11 Ola.
C. C. 396 ; Smith v. Lasher, 5 Cow. 411 ; Glynn v. Phetteplace, 36 Micli.
688; Manegold v. Dulau, 30 Wis. 383.

541 ; and see Kirby v. Coggswell, 1 7 Anderson v. Tarpley, 6 Sua. &
Cai. 505. Mar, 507.

Vol. 1 — 36 561

§ 544. CONDUCT OF THE BUSINESS.

by failure of the bank cannot be thrown upon such partner. No
appropriation can be inferred.'

Where Myers furnished the money to buy a drove of cattle on
joint account, and, the objects of the partnership having been com-
pleted, each of the other partners handed a certain amount of
money to one of their number for Myers, this made it his individ-
ual property, and the depositarj"^ who had allowed another partner
to use part of the fund was held liable to Myers at law therefor."

§ 544. Tating funds without consent of all. — The con-
sent or concurrence of all the partners is necessary to accom-
plish a severance of the joint title and convert an asset into
individual property; one partner cannot appropriate the
property to himself or to another partner, nor can a major-
ity do so. The power of each partner to sell and give a
good titleto a bona fide buyer is not a power to appropriate,
or permit a copartner to appropriate, an asset without the
consent of all, and partnership property thus improperly
taken away, or funds invested, can be followed and sub-
jected as held on a resulting trust, unless it comes into the
hands of a bona fide buyer.*

Hence a partner cannot make a note to himself, and charge the
firm with it.* Or, if he confess judgment against the firm for his
separate debt, the creditors can attack the judgment collaterally,
on distribution of the fund.' And if a partner who has procured a

1 Campbell v. Stewart, 34 111. 151. Dev." (N. Ca.) Eq. 481; Clement v.

2 Myers u. Winn, 16 III. 135. Foster, 3 Ired. Eq. 313; Eason v.
'West V. Skip, 1 Ves. Sr. 239, 243; Cherry, 6 Jones, Eq. 361; Chipley v.

Ex parte Uamn, 6 Yes: 119; Fhilips Keaton, 65 N. Ca. 534; Thomas u

V. Crammond, 2 Wash. C. C. 441; Lines, 83 N. C^. 191 ; Moore u Knott,

Crosswellu Lehman, 54 Ala. 863 (25 12 Oreg. 360; 'Horback v. Huey, 4

Am. Dec. 684); King v. Hamilton, 16 Watts, 455; McNaughton's Appeal,

111. 190; Barkley u Tapp, 87 Ind. 25; 101 Pa. St. 550; Hunt v. Benson, 3

Cooper?;. Frederick, 4 G. Gr. (Iowa), Humph. (Tenn.) 459; Piano Co. v.

403; Saylor v. Mockbie, 9 Iowa, 209; Bernard, 8 Lea, 358, 364; Wood v.

Wilson V. Davis, 1 Montana, 183; Shepherd, 3 Patt. & H. (Va.) 443;

Croughton v. Forrest, 17 Mo. 131 ; Bird u. Fake, 1 Pin. (Wis.) 290.

Uhler V, Semple, 20 N. J. Eq. 388 ; * Browii v. , Haynes, 6 Jones, Eq.

Shaler v^ Trowbridge, 28 id. 595 ; Par- (N. Ca.) 49. And see § 347.

tridge v. Wells, 30 id. 176; Bun v. 5 McNaughton's Appeal, 101 Pa. St.

Morris, 1 Caines, 54 ; Rhodes v. Wil- 550.
liams, 12 Nev. 30- Bufordt-. Neely, 2

563

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 645.

loan for a firm, on the security of his indiyidual property, receives
partnership assets assigned to him to be appropriated to pay the
lender, he cannot use them for any other purpose, nor can a person
to whom he assigns them to pay an individual debt.'

Charging property to one partner upon the books is evidence of
its conversion to his separate estate," or depositing it to his credit
in bank.' So if property exempt from execution, as the tools of
the partners, are delivered to them by the firm's assignee for bene-
fit of creditors, the transfer does not revive the partnership in
them.* And where ships owned in partnership by persons belong-
ing to different countries are captured by the cruisers of a country
at war with that of one of the partners, and not of the others, a
sum paid as indemnity to the two latter, excluding the former, is
the separate property of the recipients."

§ 5 4 5- Following the funds.— Hence, also, if one partner,
in fraud of his copartners' rights, abstract funds and invest
them in property in his own name, or^n that of- his wife, or
of a third person, or use them to payoff incumbrances upon
his own property or that of his wife, the defrauded partners
can follow the funds.*

But it seems that there must be some element of fraud in

lOwensv. Miller, 39 Md. 144. ' Price, 20 id. 117; Bergeron v. Rich-

2 See § 284. ardott, 55 id. 139 ; Prentiss v. Bren-

8 Rhoton's Succession, 34 La. Ann. nan, 1 Grant's Ch. (Up. Can.) 484.

893. As to accountability for profits made

♦Wells «. Ellis (Cal.), 9 Pac. Rep. by speculating or trading with funds

80. ■ ot the partnership, see §g 790-801. In

5 Campbell v. MuUett, 3 Swahst. Howell v. Howell, 15 Wis. 60, this
551.. The doctrine of good faith was held not to be a trust, and the
would seem to require a different statute of limitations began to run as
rule ; but in this case the court per- upon an adverse possession. In Rus-
haps could not grant rights to an sell v. Miller, 36 Mich. 1, the action
alien enemy, not because the prop- was brought to obtain the benefit of
erty was not joint, but because of land bought in the name of the de-
liis domicile. fendant, on an allegation of an ex-

6 Kelley V. Greenleaf , 3 Story, 93 ; press agreement to buy for the firm.
Shinn v. Macpherson, 58 Cal. 596; But it was held that this would not
Kayser v. Maughan, 8 Col. 839 ; Ren- sustain a recovery on the theory of
frew V. Pearce, 68 111. 135 ; Qrough-_ a resulting trust arising from a mis-
ton V. Forrest, 17 Mo. 131 ; Holdrege use of partnership funds by investing
V. Gwynne, 18 N. J. Eq. 26 ; Howell them in land in defendant's name.
V. Howell, 15 Wis. 60 [551 ; Miller 0.

663

§ 547. CONDUCT OF THE BUSINESS.

the appropriation; thus mere overdrafts give no right to pro-
ceed against the separate estate.'

Thus where a partner drew out money and expended it on his
wife's land, there was held to be no lien for it unless the taking was
surreptitious or in bad faith.' So where a partner paid taxes on his
own property with partnership funds.' And where a partner pays
a private debt with partnership funds, if the transaction is small,
and there is no reasonable apprehension of injury to others, it may
be sustained as an exercise of a right to draw funds for the part-
ner's support.* And where a salaried partner whose salary was in
arrear drew money, charged it to himself on the books, and invested
it in stock, the creditors cannot, upon the firm becoming insolvent,
claim the stock to be partnership property.'

§ 546. implied assent.^ The assent of the copartners

may, however, be implied, as by a habit of all the partners
of applying assets to separate use; thus where a partner
bought a slave, paying a small part of the price out of part-
nership funds, the partnership has no lien upon the slave for
the amount.*

So where some of the partners without objection from the rest
largely overdrew their accounts and bujlt themselves fine residences,
all supposing the partnership to be prosperous. The firm failed;
one of the partners, to whom a balance was due, had, been engaged
in selling for the firm, and had less opportunity than the rest to
know its condition or to know of. this use of its funds, but the-
books were always open to him., and the entries of these transac-
tions were upon them, and it was held in a suit for an accounting
that he could not assert a lien< upon these houses.'

§547. Delivery or change of possession.— As between
partners, as the chattels are already in the possession of each
as well as of all, delivery does not so much consist of actual
tradition, as in the surrender and relinquishment of the

1 See § 839. * Williams v. Barnett, 10 Kan. 455,

3 Sharp V. Hibbins, 43 N. J. Eq. 463; Crozieru Shants, 43 Vt. 478.

543. sjnaybin v. Moorman, 21 S. Ca.

3 United States v. Duncan, 4 346.

McLean, 607, but it was the creditors ^ Cabaniss v. Clark, 31 Miss. 433.

and not the partners who complained ^ McCormick v. McCormick, 7 Neb.

bere. 440.

664

CONVERSION OF JOINT INTO SEP AE ATE PROPERTY. § 547.

seller's possession, and is rather a matter of form than a sub-
stantial part of the conveyance; nevertheless it is necessary
when required under the statute of frauds as applied to the
law of sales; but of chattels scattered in different places a
symbolic delivery is enough, or a delivery of part for all.*
Yet such conversion into separate property by division, or
by sale from one partner to another without change of pos-
session may be valid inter se and as to individual creditors;
it has nevertheless been held void as to partnership cred-
itors without notice thereof for want of change of possession.*
And conversely where a person buys an interest in a firm,
no formal delivery is necessary inter se.'

In Birks v. French, 21 Kan. 238, B., of L., W. & B., bona fide
bought a herd of cattle then in pasture from his firm, and after-
wards L., in the name of the firm, sold the same herd to P., a former
dealer with the firm, who had no notice of the change of title. F.'s
title was held better than B.'s. The reason given was that the sale
to B. was a .dissolution of partnership as to this herd, and not bind-
ing on a prior dealer until notice.

Where the firm shipped articles to a partner who had purchased
them from it, and on the same day both went into insolvency, the
actual appropriation is sufficient to constitute them part of his
separate estate while in transit.'*

Where one partner goes away, and the other takes possession and
pursues and buys out the former, the title of the buyer is complete
without further delivery under the statute of frauds as against an
attachment.'

The mere fact that the purchasing partner by agreement contin-
ues business in the same name, sign, business cards and same form
of bank account, and employing the outgoing partner as clerk at a
salary, was held not to warrant the inference that the property

1 ShurtlefEu. Willard, 19 Pick. 203. Wagon Co. 121 U. S. 310, because a"

2 Page V. Carpenter, 10 N. H. 77 ; creditor who has no lien cannot ob-
Criley v. Vasel, 52 Mo. 445 ; Newell v. ject to changes of ownership ; but
Desmond, 63 Cal. 243 ; lie Tomes, 19 this is different from change of pos-
Bankr. Reg. 36 ; Moline Wagon Co. session. See § 105.'

V. Eummell, 2 McCrary, 307; 13 Fed. 3 Ritchie v. Kinney, 46 Mo. 398.
Rep. 658; 14 id. 155; but this case is « Fisher v. Minot, 10 Gray, 260.
reversed as Huiskamp v. Moline SBoynton v. Page, 13 Wend. 485,

565

g 518. CONDUCT OF THE BUSINESS.

was still that of the outgoing partner transferred in fraud of cred-
itors, and is not, therefore, subject to levy by a subsequent cred-
itor.'

Where L., of L. & M., who owned lumber in partnership, sold out
his interest to D., and the lumber was marked D. & M., and M.
thereupon employed L.'s as his agent to takfe charge of his interest,
here L.'s continued possession does not make his sale to D. void as
to his creditors, for D. could do no more; he could not exclude M.'s
agent from possession.'

§ 548. sale by one partner to a third person. —

Where a partner sells or. assigns his share to a third person
in a partnership, change of possession is not possible and
manual delivery is not essential to the validity of the con-
veyance. The ground upon vrhich this is based in some of
the cases below is not the true one. The parties are not
tenants in fcommon, but the assignment conveys a right in
the nature of a chose in action not capable of delivery, and
notice of the assignment to the holder of the fund or to
third persons is all that is essential, and even that as be-
tween the assignor and the assignee is not necessary.

In Whigham's Appeal, 63 Pa. St. 194, H., T. & A. were partners
in a portable saw-mill, A. being the manager and in possession.
H. sold his interest to W. and A. recognized W.'s title, but there
was no change of possession. The sale was held valid against
creditors of H. because not capable of further delivery, and because
the possession of one tenant in common is the possession of all.

In Eaiguel's Appeal, 80 Pa. St. 234, 247-8, one partner assigned
all his interest in a dissolved partnership to a creditor as security.
The ihaster held this to be valid against the execution sale of his
interest by another creditor, and the buyer, on execution, took
nothing.

In Wallace's Appeal, 104 Pa. St. 559, A., while indebted to S.
for $9,500, and having $3,000 capital in a firm, in order to increase
his interest in the business borrowed $14,500 of W., and to secure
it gave W. a written transfer of all his interest in the firm, with a
clause that on default W. could take possession. S. got judgment

iHamill v. Willett, 6 Bosw. 533; apiert;. Duff, 63 Pa. St. 59.
Criley v. Vasel, 53 Mo. 445. '

566

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 548.

against A. and A.'s interest; was . sold on execution, his copartners
buying it in for $10,000, W. notifying all at the sale that it was
pledged to him, and S. was paid in full out of the proceeds. On
bill by W. for an accounting, it was Iield that possession was not
necessary to the pledgee's title, being impossible, and this is an ex-
ception to the general rule, and that the pledge is good against
every one but buyers without notice; that W.'s' right to take pos-
session meant a right to call for an account, and A.'s copartners as
buyers of his interest only acquired any surplus in it, and must
pay W. his claim if they desire to hold A.'s share.'

In Collins' Appeal, 107 Pa. St. 590, A. borrowed money of B. for
the purpose of forming a limited partnership, and as security
pledged all his interest in the future partnership. The partnership
was formed, but under another than the then intended name and
with additional parties, and at its expiration and winding up A.'s
'share was paid to his executors. It was held, that a pledge could
be made of a thing not in esse, and the partnership formed being
in fact the one intended, the pledge is good against general credit-
ors of A. and against all but buyers without notice, and even against
subsequent partnership creditors.

The original draft of a notice of dissolution reading as follows:
" B. having disposed of his interest in the firm of A. & B. to A.,
the firm is this day dissolved," etc., was held a sufiBcient Writing tp
transfer B.'s interest to A."

In Whittle v. Skinner, 23 Vt. 531, an assignment by C, a part-
ner, of, all his interest in the firm, or in the unascertained balance-
that might be due him on settlement, as security for an individual
debt, but with the assent of his copartner, was held to be void, be-
cause it is an assignment of an uiiliquidated claim or a virtual sale
of suits, which is void for maintenance, and also' because an assign-
ment by way of pleidge is inoperative without delivery, and is
therefore a mere agreement to assigp ; and hence on subsequent
settlement, a balance of |50 in the hands of his copartner being
due C, an agreement by C. that it should remain in his hands and
be credited on a note of C. to the partner is not interfered with
by the attempted prior assignment.

1 This case had a variety of 107 Pa. St. 590 ; and lastly as Wal-
branches, viz.: in the Orphans' Ct. lace's Appeal, 104 id.
as Hulse's Estate, 11 Weekly Notes '-i Armstrong u. Fahnestock, 19 Md.
(Pa.), 499 ; then as Collins' Appeal, 58.

567

§ 650. CONDUCT OF THE BUSINESS.

§ 54:9. An offer by one partner to sell out to the other at a cer-
tain sum, the offer to continue for a certain time, but in the mean-
time the business to go on, new debts being created and old ones
paid, will be construed as an offer to sell the interest as it existed
at that date, and an acceptance at the end of the time of the in-
terest as it then stood, at the original price, is no acceptance.'

Where a firm had valuable contracts for furnishing articles to be
manufactured under its patents, and one partner having died, his
executor sold to the surviving partner the decedent's half of the
stock, fixtures, etc., according to a schedule, but no reference was
made to the contracts, and afterwards sold to him all the decedent's'
interest in the patents and the lease of the place of business, the
survivor assuming the payment of all salaries due since the death,
the contracts being of no value apart from the patents, the infer-
ence will be drawn that the executor intended to reserve no benefit
in the fulfillment of the outstanding contracts and that the sur-
vivor's continuance of business was on his own sole account.'

An assignment by one partner of all his interest in a contract
of partnership "by which he is entitled to one-third the net
profits," was held not to transfer his right to a salary and expenses
in managing the Ijusiness.^ A conveyance of half a partner's in-
terest in a gold company, with a subsequent clause that the buyer
was not to be a partner but to have only half the seller's interest
in the metals obtained, is modified by the subsequent clause and
passes no interest in the outfit.* '

EETIRESTG PARTNER'S EQUITABLE LIEN.

§ 650. Betiring partner has no lien.-^The right of a
partner to have the assets applied to pay the debts ceases
when he parts with his interest in the assets, as where part-
ners convert their joint interests into separate interests.

1 Eggleston v. Wagner, 46 Mich, for five years, but at the end of a

610. year dissolved and sold out to the

2ColIender v. Phelan, 79 N. Y. plaintiff all their rights secured by

366. the indenture, this conveys not only

3 Stewart t). Stebbins, 30 Miss. 66. the original contributions for the

4 Phillips V. Jones, 20 Mo. 67. rest of the five years, but also all
Where partners who, by indenture, subsequent purchases made with
had specified how much each should partnership funds, Caswell v. How-
contribute and agreed to continue ard, 16 Pick. 562.

5C8

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 550.

Honce, where a partner retires from the firm, selling or as-
signing his interest to the continuing or remaining partners,
he loses his Equitable right and can no longer apply as part-
ner for an accounting and receiver, but becomes a mere un-
secured creditor for whatever may be or become due him,
and, like any other creditor, has only the personal security
of his former copartners to look to.^

Some eases, however, give the retiring partner, as a surety, rights
and powers to compel application of assets to debts, which are
nearly equivalent to the lien of a partner.''

Where one partner sold his entire interest to a third person; the
other partner then used partnership funds to buy land in his own
name, the retired partner has no lien on the lands.' A partner
who conveys his interest in partnership land to his copartner is
entitled to a vendor's lien for the price, provided there are no joint
creditors;* but any such lien or a mortgage to secure the purchase
money would be subject to the claims of joint creditors.^ But the
mortgalge in the hands of an assignee for value was held good
against the attachments of joint creditors in Scudder v. Delashmut,
7 Iowa, 39.

In Seaman v, Huffaker, 21 Kan. 254, M., of H. & M., partners,
owning real and personal property, sold in writing all his interest
in the property to his partner, H., in consideration of H.'s promise
to pay him $1,500 and to pay the debts. The real estate remained
in the name of both and was mortgaged by H. to secure a partner-
ship creditor. The creditor, having foreclosed, was held entitled
to a decree for the title against both partners, for the entire equi-
table title being in H., he could mortgage it, and the claim for a
firm debt is prior to M's claim for |1,500, which is an individual
debt.

In Low V. Allen, 41 Me. 248, L. sold out- to his partner A. all his
interest in the firm of L. & A., A. giving him in payment notes

iLingen v. Simpson, 1 Sim. & Stu. here because not elsewhere specifio-
600; Ex parte Ruffin, 6 Ves. 119; ally noticed under this head.
Jones V. Fletcher, 43 Ark. 423 ; Mar- 2 See g 534.
lin V. Kirksey, 23 Ga. 164; Wilson v. SBarkley v. Tapp, 87 Ind. 35.
Soper, 13 B. Mon. 411 (56 Am.-^Dec. -iReese v. Kinkead, 18 Nev. 126.
573). And see § 189, and cases in. ^Seaman w. Huflfaker, 21 Kan. 254;
the succeeding notes of this topic Low v. Allen, 41 Me. 248; Savage «.
passim, the foregoing being cited Carter, 9 Dana, 408.

569

g 661. CONDUCT OF THE BUSINESS.

and a mortgage upon tte partnership property " to secure him for
his liability on the debts and for the ultimate payment of the
notes." The property being sold by consent and the proceeds
coming into L.'s hands, it was held that he could appropriate it to
partnership liabilities before applying it to the jiotes.

§ 551. GontinuiDg partners assuming debts. — The fact
that the continuing partner, or if a third person, who buys the
interest and becomes a partner, assumes the debts and agrees
with the retiring partner to Indemnify or save him harmless
or to pay the debts, does not preserve the lien. The contract
is a personal obligation only, and is equivalent merely to
deferring the payment of the consideration. Hence the
property is converted into separate property and the buyers
can deal with it as they please, for the retiring partner is a
mere creditor, and not a cestui que trust}

I Ex parte EulBn, 6 Ves. 119, 128; Rankin v. Jones, 3 Jones (N. Ca.),
Ex parte Williams, 11 id. 3; Crane Eq. 169; Allen v. Grissom, 90 N. Ca.
V. Morrison, 17 Bankr. Reg. 393; 90; Miller v. Estill, 5 Oh. St. 508,
Reese v. Bradford, 13 Ala. 837, 847; 517-18 ; Baker's Appeal, 21 Pa. St.
Griffin u Orman, 9 Fla. 22 ; West V. 76; Clarke's Appeal, 107 id. 436;
Chasten, 12 Fla. 315; Ladd v. Gris- Croone v. Bivens, 2 Head, 389; Smith
■wold, 9 111. 25 (46 Am. Dec. 443); «. Edwards, 7 Humph. 106; HoUis u.
Hapgood V. Corn well, 48 id. 64; Staley, 3 Baxter, 1'67; White v.
Goembelu Arnett, 100 id. 34; Will- Parish, 20 Tex. 688; and see Wagner
iamson v. Adams, 16 111. App. 564; v. Wagner, 50 Cal. 76. Contra, De-
Trentman v. Swartzell, 85 Ind. 443 ; veaii v. Fowler,- 3 Paige, 400 ; Olson
Maquoketa, City of, v. Willey, 35 v. Morrison, 39 Mich. 395. It will
Iowa, 323 ; Gi'iffith v. Buck, 13 Md. be remembered that if a continuing
102; Armstrong v. Fahnestock, 19 partner agrees to pay the debts and
id. 58 ; Robb v. Mudge, 14 Gray, 534 ; not merely to indemnify, the retiring
Howe V, Lawrence, 9 Cusli. 553, 558 partner has a right of action against
(57 Am. Dec. 68); Andrews u Mann, him upon non-payment, without
81- Miss. 323; Fulton v. Hughes, 68 himself having first paid anything
id. 61 ; Vosper v. Kramer, 81 N. J. (§ 636). This, however, is an action
Eq. 430 ; Dayton v. Wilkes, 5 Bosw. at law for money damages and not
655 ; Cory v. Long, 3 Sweeny (N. Y.), an equitable right to have the spe-
491 ; Weber v. Defor, 8 How. Pr. cific assets applied to partnership
503 ; Parks v. Corastock, 59 Barb. 16 ; debts to the exclusion of separate
Dimon v. Hazard, 83 N. Y. 65; debts, which is what we are here
Emerson v. Parsons, 46 id. 560 (aff'g considering, and which carries with
2 Sweeny, 447) ; Stanton v. Westover, it a right to injunction and receiver,
N. Y. (1886) 4 N. E. Rep. 539; Latham and which a court will enforce in
V, Skinner, Phil. (N, Ca.) Eq. 293 ; favor of the firm creditors in case

570

' CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 551.

Thus, in Griffith v. Buck, 13 Md. 102, one partner sold out to the
other, who assumed the debts and agreed that the latter should be
released therefrom. The continuing partner afterwards sold out
the whole concern to Gr., leaving the debts unpaid. The creditors
claimed that the retired partner had a lien to have the debts paid,
which lien the creditors could use to set aside the sale to G. But
it was held that the partnership effects on voluntary dissolution
could be transferred bona fide to one or more partners or to a
stranger, and though the consideration be that the buyer shall pay
the debts this will not aid the creditors.

In Lingen v. Simpson ' the partners dissolved and divided up the
tangible property of the firm between them, agreeing that the
debts owing to the firm should be appropriated to pay those owing
by it. This fund proved deficient, but it was held . that neither
partner had a lien upon the share of property alloted to the other
for ^he deficiency.

In Langmead's Trusts,'' one partner retired, assigning all his in-,
terest in the firm to the other, subject to debts, the other agreeing
to pay debts and indemnify him. The continuing partner after-
wards assigned a policy of insurance which had been an asset of
the firm to a mortgagee with notice of the terms of dissolution.
One judge held that no lien was intended to be reserved; the rest
held that, whether intended or not, the mortgagee need not see to
the application of the mortgage money.

In Giddings v. Palmer,* partners on dissolution divided the
assets between them and 'each assumed specified liabilities. B.,
one of the partners, who had agreed to pay a partnership note due

the assets are being judicially dis- his vendee, who had also bought out

tributed. The above two cases of the other partner. It was also

Deveau v. Fowler and Olson v. Mor- held there that the defendant could

rison were covenants to pay the not insist that the creditors should

debts, and the courts held that such first obtain judgment against the

a covenant recognizes or preserves partners, for he had no right to re-

the lien^ in the former case the re- quire those to be pursued whom he

tiring partner was allowed an in- had undertaken to relieve. See, also,

junction and receiver on charges of § 929.

insolvency and using the assets to i ISim. &Stu. 600;S. P. Whitworth

pay private debts, and in the latter v. Benbow, 56 Ind. 194; and see Rob-

the fflrm creditors and the retiring ertson v. Baker, 11 Pla. 193.

partner jointly obtained injunction 2 7 De G. M. &G. 353.

and other relief in equity against 3 107 Mass. 369.

571

§ 552. .CONDUCT OF THE BUSINESS.

to his father, instead of applying the assets allotted to him to its
payment, devoted them to the discharge of individual debts which
he owed his father. The father, who, at the time, knew of the
agreement and its violation, brought an action on the note against
the other partners. It was held that each partner received his al-
lotted assets absolutely, and not subject to any trust, and each
had released his lien to have them applied to debts and relied upon
the other's promise, and the father could maintain the action.-

§ 552. Retention of lien by the contract. — There seems,
however, no reason why the retiring partner may not re-
tain a lien by agreement, and if the terms of sale so ex-
press, or an intention to that effect appears, the lien will be
preserved; ' and if the purchasing partner agrees to pay the
debts with or out of the assets, or to apply the assets or
the profits to the debts, a trust fund is created, or rather
the retiring party has preserved his equity to insist upon an
application of the assets to the debts, and the courts will
enforce it.^

But a promise to do the best he could with the assets towards
the firm debts creates no lien,' and it was doubted whether a sale
" subject to the payment of debts " with an agreement of indem-
nity shows an intention to reserve a lien ; * but if the sale is to a
third person on such terms, the title was held not to have passed,

1 Savage v. Carter, 9 Dana, 408; (N. Y. ) 669 ; Cory u Long, 3 Sweeny,
Croone v. Bivens, 2 Head, 339 ; Grif- 491 ; Eobb v. Stevens, 1 Clarke, Ch.
flth V. Buck, 13 Md. 103, 116; Rogers 195; Rogers v. Nichols, 30 Tex. 719;
V. Nichols, 30 Tex. 719, 734. As to Shackelford v. Shackelford, 33 Gratt.
the rights of a retiring partner in 481; and Roop v. Herron, 15 Neb.
those states where he is regarded as 78, might have been put on this
a surety to compel continuing part- groundi In this case, after a partner
ners to pay the debts, see §583. had retired, merely assigning his in-

2 Payne v. Hornby, 25 Beav. 380 ; terest to his copartner, who agreed
jKelseyt). Hobby, 16 Pet. 269; Mat- to pay the debts, the firm being
. ter of Shepard, 3 Ben. 347 ; Sedam v. insolvent, the counsel of 1;he out-
Williams, 4 McLean, 51 ; Marsh v. going partner was regarded as nee-
Bennett, 5 McLean, 117 ; Talbot v. essary to a transfer of assets to pay
Pierce, 14 B. Moh. 158 ; Bowman v. the separate debt of the remaining
Spalding (Ky.), 3 S. W. Riep. 911; partner.

Harmon v. Clark, 13 Gray, 114 ; Top- 3 Hapgood v. Cornwell, 48 111. 64
liBv. Vail, 1 Harr. Ch. (Mich.) 840; <Langmead's Trusts, 7 DeG. M. &
"Wildes V. Chapman, 4 Edw. Ch. G. 353.

573

CONVERSION OF JOINT IN'-Q SEPARATE PROPERTY. § 653.

and therefore not to be affected by execution for a prirate debt of
the buyer.'

If the retiring partner reserves a lien for the payment of
debts, such lien extends to the entire assets and. not merely
to his proportion of them or of the tangible property,'^ but
not to subsequent acquisitions.'

§ 553.. Illustrations. — Where the buying partner agrees to
pay all the debts and wind up the business, applying the assets as
fast as realized to the debts and keep an account, this shows an in-
tention to preserve the lien, and the contract makes the buyer a
trustee; hence on his death that part o£ his estate consisting of the
former partnership assets will be applied to the firm's debts.*

In Menagh v. Whitwell," it was said by Allek, J., that the
sale by one partner to another reserves no lien when new rights
have attached by reason of such change of interest, as where the
transfer is to a sole partner and the rights of his individual credit-
ors have accrued, or the new firm has exercised the jus disponendi
which they have, or there are creditors of the new firm. But there
is no reason why, when no adverse or paramount rights have at-
tached to the joint property, the same equity should not be
recognized in the retiring partner as if he had been a continuing
partner."

In Harmon v. Clark,' a dissolution and conveyance by one
partner of all the assets to the other, who agreed to pay all the
debts, and after their payment to convey one undivided half back
to the retiring partner, was held not to be a conveyance and con-
version of the joint property into separate property, leaving no
duty on it, and taking only the personal agreement of the co-
partner to pay debts, but it fixes a trust upon the property for
the benefit of the retiring partner and creates a clear equity in his
favor. The rig.ht to enforce this trust devolves, in case of insolv-
ency, on the joint creditors^ who can insist that the equitable claim

1 Stevenson u Sexsmith, 21 Grant's 653 N. Y. 1-46,167 (11 Am. Rep.
Oh. (Up. Can.) 855. 683).

2 Northrup v. McGill, S7 Mich. 234. « This idea was also suggested

3 Kerr v. Bradford, 36 Up. Can. C. in Shackelfprd v. Shackelford, 33
P. 318. Gratt. 4S1, 503.

4 Shackelford «. Shackelford, 33 "13 Gray, 114.
Gratt. 481.

673

§ 554. CONDUCT OF THE BUSINESS.

of the partner shall be worked out and the property applied to
the payment of the joint debts and not to separate debts.

In Kitchen v. Lee,' K. & L. were partners, and L. was a minor.
They dissolved, K. conveying to L. all his interest in the firm on
condition that L. would pay the debts. L. subsequently refused to
pay them on the ground of infancy. Here it was held that he
could not retain the assets and refuse to pay the debts.'

When, however, the retiring partner is to receive a bond to se-
cure the purchase money agreed to be paid to him, the contract is
executory until it is given, and his lien continues until then.'

§ 554. Remedies in such case. — If a lien is reserved it can
be enforced against a voluntary transferee.* But a purchaser
for value of an asset is not bound to see to the application of
the purchase money, and is justified in assuming it will
be properly applied.' The lien being retained, it and a rem-
edy upon it are the same as in case of dissolution without
sale,* and the rights of firm creditors to be subrogated to it
when the court is administering the concern is the same as
before.'

In Kellogg ». Fox,' K., of B. & K., sold oiit his interest in the
firm to F. & M., with whom B. then went into partnership as B.,
F. & Co., the terms of sale being that the interest sold should remain
K.'s property until paid for. Afterwards the new firm sold some of

1 11 Paige, 107. an adequate remedy at law, no dis-

2 Contrary to the above cases it- covery being sought and the ac-

was held in Clarice's Appeal, 107 Pa. counts being all on one side, ' nor

St. 436, where the articles of part- could the bill be sustained on the

nership provided that any partner ground of a trust.

could sell his share, and in that case *See § 540 ; Ex parte Wood, .10 Ch.

the continuing partners and the D. 554; Fitzgerald v. Cross, SON. J.

buyer of the share were bound to ex- Eq. 90.

onerate him from all debts, and ap- * Wildes v. Chapman, 4 Edw. Ch.

ply the assets to pay the debts. The 669.
' plaintiffs sold'their shares, but were *Per Knight Bruoe, L. J., in

afterwar'ds compelled to pay debts, Langmead's Trusts, 7 De G. M, & Q.

and applied to equity for reimburse- 353;

ment ; that equity had no jurisdic- * Rogers v. Nichols, 30 Tex. 719.

tion to wind up and compel a reim- ' Buck Stove Co. v. Johnson, 7 Lea

bursement ; that the plaintiffs were (Tenn.), 288.

creditors and not partners, the same ' 45 Vt. 348. ,

as any partner who has sold and had

574

CONVERSION OF JOINT INTO SEPARATE PROPBRTT. § 555.

the prpperty in good faith, but P. & M. appropriated the avails to
their own use without paying K., who brought trover. It was held
that the action would not lie. The reservation of interest by K.
was only as partner of B., and B. had the same power of disposition
after as before the dissolution, and F. & M. are not liable for par-
ticipation in a sale which B. had the right to make.

,In McGown v. SpragUe,' it was held that if the partner who buys
out the other and assumes the debts, absconds without paying
debts, the selling partner could consider himself released from the
contract, and a court would release him from it and reinstate him
in his original rights as partner and restore his lien, and he could
thereupon have the assets applied to t'he partnership debts prior to
the individual debts of the copartner; Liqon, J., dissenting.

A retiring partner who has reserved his lien can file a bill to have
the assets applied to the firm's debts in case of breach of duty or
contract, or in case of fraud; " though not on mere apprehension of
loss without misconduct; ' that he can file such a bill against the
administrator of the continuing partner, who is .under an insuffi-
cient administration bond.^

Where on dissolution a partner merely left an amount of assets
equal to the debts in the hands of a cbpartner without selling to
him, and the latter agreed to pay the debts but kept on in business,
incurred new debts,, and after execution had been levied on the
stock assigned for the benefit of creditors, the former partner can
insist on his lien.^

SUCCESSIVE FIRMS.

§ 555. The foregoing priticiples afford an easy solution to
the question of the disti'ibution of the assets, of successive
partnerships in the same business. These changes of part-
nership may occur in various w^ays, as by a partner selling
hfs ijiterestto a third person who is taken into the firm in
his place. Or by a partner retiring or dying, the business

1 33 Ala. 524. ' Parker v. Merritt, 105 111. 293.

2 Darden v. Crosby, 30 Tex. 150. And see Williamson v. Adams, 16

3 Walker v. Trott, 4 Edw. Ch. 33. 111. App. 564. And see § 105.

4 Shackelford v, Shackelford, 33
Gratt. 481.

575

g 55!!. COPTDUCT OF THE BUSINESS.

being continued, or by a firm taking in a new partner, with-
out the retirement of any member.

In all these cases the property of the old firm is converted
into that of the new, and the partners in the new firm have
an equitable lien to have it applied to the creditors of the
latter firm, whicji lien the court will use in favor of such
creditors until they are paid in full, to the exclusion of cred-
itors of former firms. ^

§ 556. Illnstrations; retirement of old without new part-
ner.— We have already seen that a partner who retires
suffering the continuing - partners to go on with the old
assets as a new firm has lost his equity to compel their ap-
plication to the debts of the original firm.^ From this it
follows that the original creditors whose priority is worked
out through the partners' equity is also gone, and the prop-
erty will be devoted first to the debts of the new concern.'

For example, if, of a partnership of five persons, two retire and
the remaining three agree to pay the debts and form a new firm,
then one of these retires and the other two form a firm with the
remaining assets, but become insolvent and assign for the benefit of
their creditors, creditors of the former firms cannot claim any part
of the fund until those of the last firm are paid in full.*

So where C. & Co., who were indebted to the plaintiff, dissolved,
and two of its members formed a new firm as C. & B., taking the
assets and assuming the debts, the plaintiff, however, not assenting
to the substitution of debtors, and C. & B. assigned for benefit of
creditors and as a firm, this was held equivalent to three assign-
ments, and the plaintiff cannot come in as a creditor of the firm of
C. & B., for he is a creditor of 0. and of B. as individuals.*

1 Camp V. Mayer, 47 Ga. 414 ; Gor- firm has no creditors, Dennis v, Eay,
don V. Cannon, 18 Gratt. 387 ; Hobbs 9 Ga. 449.

V. Wilson, 1 W. Va. 50 ; Tracy v. * Baker's Appeal, 31 Pa. St. 76.
Walker, 1 Flip. 41; 3 West Law sgcuU v. Alter, 16 N. J. L. 147.
Month. 574, and the illustrations in This case also held that plaintiff can-
next section. not come upon the separate estates

2 g 550. until he has exhausted the partnei-

3 That the old creditors can compel ship assets of C. & Co. or shown that
the new firm to account if the new firm also to be insolvent. This is on

/ 676

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 557.

Hence, also, the assignment for creditors by the new firm must
be for the creditors of the new firm and cannot provide for pay-
ment of those of the old on an equality with them.'

Where the dissolution is by the death of a partner, and the execu-
tor does not part with his equitable right to require debts to be
paid, a continuance of business by the survivor with the old assets
cannot avail to postpone the old debts to the new ones.' And as
the property of the creditors of the new firm may have added to the
funds, both sets of creditors will share pari passu, the representa-
tives of j;he deceased partner who permitted the business to go on
not being allowed to complain.'

In Hoyt V. Sprague,* the lien of the executor of a deceased part-
ner who had acquiesced in the continuance of the business with the
old assets is lost as to new property which, in the course of busi-
ness, takes the place of the old, and he is not even a creditor of the
new firm and cannot share pari passu with the new creditors; but
the opinion seems to regard his lien as continuing to exist in such
of the old assets as remain in specie.' ' ,

§ 557. New partner on retirement of old.— An old firm
dissolves, and a partner receives from it a specific portion of the
assets, for. which he is to pay a certain sum, but never does so, and
these assets are transferred to him for the purpose of contributing
them as his share of the capital of a new firm, composed of some

the d.octrine that a person having a ^ Xn New Hampshire, where the

lien upon two funds must exhaust creditors' priority is in some degree

that first on which others have no inherent in themselves and not

lien, and is not universally accepted worked out through , a.> partner's

as the rule. equity, their paramount iright is not

IXesterw. Pollock, 3 Robt, (N. Y.) intercepted by any management of

691 ; s. C. as Lester v. Abbott, S8 How. the surviving partners among them-

Pr. 488 ; Smith v. Howard, 20 How. selves, and any property of the orig-

Pr. 131. ■ inal firm which can be traced through

2Deveau Vi Fowler, 2 Paige, 400. successive firms will be devoted to

Here there was but one survivor, and the original creditors, as against later

hence not a new .firm. The act of debts or attachments or seizures by

the executor here would not gen- creditors of the new firms. And the

erally be regarded as a reservation of administrator's assent makes no dif-

his lien. ference, as he has nothing to do with

3 Filley v. Phelps, 18 Conn. 294, 304. the assets. Benson v. Ela, 35 N. H.

And: Bee Ex parte Chack, SBing. 469, 402. This rule would, perhaps, also

cited in § 558. obtain in Vermont and Missouri.

4 103 U. S. 613.

Vol. I— 37 577

§ 557. CONDUCT OF THE BUSINESS.

members of the old firm and others, and are so contributed. But
the new firm shortly dissolved, some of the members taking all the
assets, and giving him a note for the valuation of all the goods he
,had so contributed, being the same amount which he owes the old
firm for them. The proceeds of this note when collected belong to
his personal estate, although the. old firm is insolvent and his debt
to it has not been paid.'

X., of G, & X., sold out to H. all his interest in the firm, H.
covenanting to pay debts and hold him harmless, and the partner-
ship of G. & H. was then formed. G. & H. having assigned for the
benefit of creditors, the creditors of Q. & X. claimed a lien and
charge iipon the property of Q. & X. and a right to follow that
property into the new firm as against its creditors. But as the
priority of creditors is only through the partners, no such relief
can be granted.^

Indeed, a person who transfers to another goods for the purpose
of being contributed by the latter to the capital of a new firm of
which he is becoming a member, cannot reserve a lien or claim or
trust in the interest of such person in the new firm or in such
property without the assent of the other pai-tners.'

But where the property to be contributed is not the entire in-
terest, but a specific share, subject to a purchase money mortgage
to, the retiring partner, such mortgage will have priority oven
mortgages by the new firm to subsequent creditors. Thus, where
by agreement of both partners of a firm of two, one -sold out his
interest to a third person, in order that the latter might form a
partnership with the continuing partner, and deeded to him an un-
divided half of the partnership real estate. The new partner
mortgaged back the real estate to the retiring partner to secure the
price and payment of his share of the debts. Th« new firm after-
wards mortgaged the property to subsequent partnership creditors.

1 Richardson V. Tobey, 3 Allen, 81. ley v. Winkelmeyer, 58 Mo. 562;

2 Allen V. Grissom, 90 N. Ca. 90. Hart v. Tomlinson, 2 Vt. 101. Con-
'For other cases of one partner going tra, in New Hampshire, for in that
out and' a new one coming in, hold- state the creditors' priority is inher-
ing as above, see Crane v. Morrison, ent in them and not entirely de-
4 Sawy. 138; 17Bankr. Reg. 393; Ut- pendent on the partner's equity,
ley V. Smith, 34 Conn, 290; Menagh Spurr v. Russell, 59 N. H. 338.

V. Whitwell, 53 N. Y. 146; McCauly ' Richardson v. Tobey, 3 Allen, 81,
V. McFarlane, 3 Desaus. (S. Ca.) 239; 83.
Dayjon v. Wilkes, 5 Bosw. 655 ; Ack- ' '

578

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 658.

The former mortgage was held the superior lien, as not being a
mortgage of the mere surplus or individual interest, but the in-
terest in such property had in effect been converted into separate
property, and the continuing partner had waived the lien in it as
against the mortgage; hence the creditors could assert none."

§ 558. New partner, no qld one retiring. — Where a firm
takes in another partner, the lien of one of the original
partners to have the assets subjected to the debts of the old
firm is lost, and after dissolution of the new firm by death
of one of the original partners, and a finding by court of the
amount due his administrator and its payment to him, such
fund cannot be reached on behalf of creditors of the old
flrm.^

So, where 0. & D., a firm, incurred a debt, then M. came
into the firm, the business being continued in the old name,
then the creditor attached j this is governed by the rules ap-
plicable to the attachment of the interest of an individual
partner for his separate debt, and the claims of the creditors
of the new firm, including the claims of the new partner,
will be protected as prior.'

Where the incoming partner comes in as a secret partner, the
assets 'will be treated as still those of the ostensible partners and
both sets of creditors share pari passu.^ And so if the new firm
has assumed the debts of the old,' but not if the creditor has not

1 Beecher v. Stevens. 43 Conn. 587. New Hampshire, where the cred-

2 CoflSn V. McCuUpugh, 30 Ala. 107. Iter's priority is independent of the
And see Header v. Hughes, 14 Bush, partner's equitable lien, the creditors
652. of the old firm will share equally

8 Meyberg v. Steagall, 51 Tex. 351. with those of the new, for all assets

See, aJso, Childs v. Walker, 2 Allen, and liabilities continue after the ad-

259, 263; Locke v. Hall, 9 Me. 188; mission of a new partner the same as

Hurlbut V. Johnson, 74 111. 64, where before, and the creditors of the old

a person in business and in debt took firm have rather the higher equity.

in a partner and they bought more Shedd v. Bank of Brattleboro, 32

goods on credit, at least all the as- Vt. 709, 714 ; Spurr v. Russell, 59 N.

sets, except the original partner's in- H. 388.

terest in the prior good's so far as * Ex parte Chuck, 8 Bing. 469; and

they can be identified, must be first see Filley v. Phelps, 18 Conn. 294, .

used to pay those who sold the new 304, cited in § 556.'

goods. In Vermont, however, as in 5 Smead v. Lacey, 1 Disney, 339.

579

§559. CONDUCT OF- THE BUSINESS.

assented to tte novation.' Hence, where a firm took in a new
partner, the new firm receiving all the effects of the old, and the
partners agreeing with each other to pay its debts, and the new
firm became insolvent, and a creditor of the old attached its stock,
and subsequently creditors of the new firm attached, the sheriff is
not liable to the creditor of the old for giving priority to the latter
attachments. The promise of the partners w^er se to pay- the old
debts is not available to the creditor until he knows of and assents
to it.'

FRAUDULENT CONVEYANCES.

§ 559. Sal6 Ibetween partners. — It is clear that while the
partnership is solvent and going on, the partners may by
unanimous assent or joint act do what they please with the
assets, if the act is bona fide. The creditor has no equity
against the property; and if one partner assigns his interest
to the copartner, the creditor can obtain judgment against
all, and levy on the property of each, and if the execution is
against the partnership effects, he holds them not in respect
of any interest as mere J9int creditor, but by -virtue of the
execution. Where the assignment by one partner to the
other is on a consideration paid, or, what is equal to con-
sideration, an agreement to pay debts and indemnify against
them, it is a change of joint into separate property. The
only question is upon the bona fides of the transaction. If
such an arrangement could not be made a partner never
could retire.

In Ex parte EufSn, 6 Ves. 119, before Lord Eldon, 1801, a
leading case, Thomas Cooper and James Cooper were partners, and
dissolved, Thomas retiring and selling his interest to James at a
valuation to be made, James covenanting to pay debts and indem-
nify Thomas against them, and giving him a bond with surety for
£3,000, the estimated value of his interest. A year and a half
afterwards, James became bankrupt. The joint creditors claimed a
priority on distribution in the partnership effects remaining in
specie. Lord Eldon stating that creditors of a partnership had no
lien, but only a right to sue; and that in case of dissolution by

1 Scull V. Alter, 16 N. J. L. 147; 2 Locke u. Hall, 9 Me. 133.
Locke V. Hall, 9 Me. 133 ; and see § 503.

580

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 560.

death or bankruptcy, where the court administers, the joint credit-
ors are first paid, in order to do justice to the partners themselves,
the equity being that of the partners and not of the creditors; but
where the dissolution is a partner's own act, and, instead of calling
on the effects according to his equity to pay the debts, he assigns
his interest to the other to deal with as he pleases, the equity is
gone, the assignment not being m^de subject to the payment of
debts, but in consideration of a personal obligation of the assignee
to pay the debts. The creditors therefore cannot rest upon the
equity of the partner going out.'

§ 560. authorities holding it valid. — A sale for

valuable consideration by one partner, not made in contem-
plation of bankruptcy, to his copartner or to a third person,
of all his interest in the firm, unlike the case of a, gift or
payment of the separate debt of a copartner, is as valid to
, transfer the entire property to the vendee as is a sale be-
tween any individuals, although the buyer and seller are in-
solvent and thus defeat their creditors; and as the firm
creditors have no lien, the buyer can dispose of the prop-
erty as his own and pay his separate creditors, to the ex-
clusion of joint creditors, or vice versa.'

1 This case is approved and ex- Pfirrman ^ ■;;• Kooh, 1 Cint. Superioir
,plainedfurtherinJ7a; parte Williams Ct Rep. 460; Gallagher's Appeal
llVes. 3. Also Huiskamp u Moline (Pa.), 7 Atl. R. 337; Waterman v. -
Wagon Co. 121 U. S. 310 (reversing . Hunt, 3 R. I. 298, 303; Shackelford
S. c. as Moline Wagon Co. v. Rum- v. Shackelford, 33 Gratt. 481.
meU, 3 McCrary, 307; 13 Fed. Rep. 'i Ex parte Peake, 1 Mad. 846; Ex
658; 14 id. 155); Fitzpatrick v. Flan- parte Carpenter, Mont. & McA. 1;
nagan, 106 U. S. 648, 655-6; Shimer Parker v. Ramsbottom, 3 B. & O.
V. Huber, 19 Bankr. Reg. 414 ; Aus- 257 ; 5 Dow. & Ry. 138 ; Case v. Beau-
tin V. Seligman, 21 Blatchf. 506; 18 regard, 99 U. S. 119; 1 Woods, C. C.
Fed. Rep. 519; Lamkin v. Phillijis, 9 127; Fitzpatrick v. Flannagan, 106
Porter (Ala.), 98; Mayer v. Clark, 40 U. S. 648, 655-6 ; Huiskamp u. Moline
Ala. 359 ; Robertson v. Baker, 11 Fla. Wagon Co. 121 U. S. 310 (reversing
193 ; McDonald v. Beach, 2 Blackf . s. C. as Moline Wagon Co. v. Rum-
55; Upson v. Arnold, 19 Ga. 190 (63 mell, 2 McCrary, 307; 13 Fed. Rep.
Am. Dec. 303); Wilsqn v. Soper, 13 658; 14 id. 155); Be Bjornstad, 18
B. Mon. 411(56 Am. Dec. 573); Coak- Bankr. Reg. 282; lie Downing, 1
ley V. Weil, 47 Md. 277; Parish v. Dill. 33; i2e Wiley, 4 Biss. 214, here
Lewis, 1 Freem. (Miss.) Ch. 299 ; Field all the property was conveyed to one
V. Chapman, 15 Abb. Pr. 434; partner and he became bankrupt;
McGregor v. Ellis, 2 Disney, 386; Tracy v. Walker, 1 Flip. 41 ; s. c. 3

581

§060.

CONDUCT OF THE BUSINESS.

So one partner may buy out the other, and the property being
thus his separate estate, may claim exemptions in lieu of execution
or homestead in it.'

West. Law Month. 574; Shimer v.
Huber, 19 Baukr. Reg. 414.; Reese v.
Bradford, 13 Ala. 846; Lamkin v.
Phillips, 9 Porter (Ala.), 98; McGown
V. Sprague, 23 Ala. 524; Mayer v.
Clark, 40 Ala. 259, held to be sepa-

596 ; Dimon v. Hazard, 32 N. Y. 65,
here the buyer assigned for benefit
of his creditors; Stanton v. West-
over (N. Y. 1886), 4 N. E. Rep. 529,
here the buyer was largely a cred-
itor of the firm ; the firm was heav-

rate property on contest between an ily in debt; he transferred to a single

execution creditor of the firm and a
mortgagee for a past debt of the
transferee partner ; Jones v. Fletcher,
42 Ark. 432 ; Allen v. Center Valley
Co. 21 Conn. 130 (54 Am. Dec. 333),
where the firm sold the property and
divided the proceeds while insolvent ;
Upson V. Arnold, 19 Ga. 190 (63 Am.
Dec. 302), where the buyer subse-

joint creditor; Rankin v. Jones, 2
Jones (N. Ca.), Eq. 169, here the
buyer assigned for benefit of credit-
ors ; Potts V. Blackwell, 4 Jones, Eq.
58 ; McGregor v. Ellis, 2 Disney, 286 ;
Pfirrman v. Koch, 1 Cincinnati Su-
perior Ct. Rep. 460 ; Wilcdx v. Kel-
logg, 11 Oh. 394; Belknap v. Cram,
11 id. 411 ; Miller v. Estill, 5 Oh. St.

quently became insolvent ; Hapgood 508,516-17; Clark v. M6Clelland, 2

V. Cornwell, 48 lU. 64; Goembel v.
Arnett, 100 111. 34; Williams v. Ad-
ams, 16 111. App. 564; Dunham v.
Hanna, 18 Ind. 270; Trentman v.
Swartzell, 85 Ind. 443; George v.
Wamsley, 64 Iowa, 175; Wilson v.
Soper, 13 B. Mon. 411 (56 Am. Dec'
573); Armstrong v. Fahnestock, 19
Md. 58, here all w^ere insolvent and
the buyer assigned all to an individ-
ual creditor; Coakley v. Weil, 47
Md. 377; Guild v. Leonard, 18 Pick.
511; Richardson v. Tobey, 3 Allen,
81, here the firm was insolvent;
Kimball v. Thompson, 13 Met. 283;
Howe V. Lawrence, 9 Cush. 553 (57

Grant's Cas. (Pa.) 31, the buyer be-
came insolvent ; Waterman v. Hunt, ,
2 R. I. 298, 303; White v. Parish, 20
Tex. 688, 693 ; Shackelford v. Shack-
elford, 33 Gratt. 481 ; David v. Birch-
ard, 53 Wis. 492, 497. And see Vosper
V. Kramer, 31 N. J. Eq. 430. See,
also, the extreme cases under § 568.
In Howe v. Lawrence, 9 Cush. 553,
557 (57 Am. Dec. 68), it was said
that the right of a partner to sell
out his entire interest to a copartner,
wholly free from the claims of joint
creditors, since they have no lien,
although the firm and both partners
are insolvent, must be exercised bona

Am. Deo. 68), here the firm and fide for the purpose of closing the
both partners were insolvent; Rich- affairs of the partnership,
■ards V. Manson, 101 Mass. 482 ; Par- i Burton v. Baum, 32 Kan. 641
ish V. Lewis, 1 Freem. (Miss.) Ch. Worman v. Giddey, 30 Mich. 151
399 ; Fulton v. Hughes, 63 Miss. 61, State v. Thomas, 7 Mo. App. 205
here the buyer turned over the stock Mortley v. Flanagan, 38 Oh. St. 401
to his separate creditor as payment ; Gill v. Lattimore, 9 Lea, 381 ; Grifiie
Kobb V. Stevens, Clarke, Ch. (N. Y.) v. Maxey, 58 Tex. 310. Contra,
191, here the buyer assigned for that if the conversion from joint to
creditors; Sage v. ChoUar, 21 Barb, separate' is on the eve of insolvency

583

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 560.

In Hapgood v. Cornwell, 48 111. 64, H., a private creditor of one
of three partners, believing his debt to be in danger, persuaded the
debtor to buy out his copartners, advancing to him over $10,000
for the purpose, and to turn the stock thus purchased over to him,
whereupon a judgment creditor of the firm filed a bill against H.
The transaction was • held to be legal, and' the buying partner to
have received the stock discharged of any claim of partnership
creditors, they having no lien except through the partners.

In Second Nat'l Bk. v. Farr (N. J.), 7 Atl. Eep. 892, a partner
personally liable for debts, by false statements of his ability to pay
his separate and the firm's debts induced his copartner to sell out
to him his interest in the partnership and then assigned for the
benefit of creditors, thus letting in his separate creditors firs.t. The
sale was set aside at the suit of judgment creditors of the partner-
ship, as in fraud of their rights.

In Hawk Eye Woolen Mills v. Conklin, 26 Iowa, 422, J. and V.,
partners, were indebted to the plaintiff. J. retired, V. agreeing to
pay the debts. V. then sold one-half the stock to C, and V. and
C. became partners. C. had to borrow to pay for his half, and V.
with one M. became his sureties, and V. gave M. a mortgage on
the partnership property to secure him as surety and the mortgage
was foreclosed. Plaintiifs brought an action, claiming that as J. &
V.'s assets or V.'s assets went to paj' C.'s debt, he should have a
claim against C. This was refused, the court holding that joint
creditors have no lien and can work out their priority only through
a partner, and if the partners make an absolute sale of the property,
the creditors are cut off.

The partners becoming incorporated and transferring the part-
nership property to the corporation, taking stock in it in their
individual names in exchange, is not per se fraudulent as to the
joint creditors.'

or for the purpose of enabling the 381; Chalfant.v. Grant, 3 id. 118;
partners to claim homesteads, it is Mortley v. Flanagan, 38 Oh. St. 401.
fraudulent as against the joint cred- i Persse & Broois Paper Works v.
itors. Be Sautholf, 8 Biss. 35; 16 Willett, 1 Robt. 131; 19 Abb. Pr. 416;
Banlir. Eeg. 181; 5 Am. Law Rec. Beitman v. McKenzie, 11 Ohio
173; Commercial & Sav. Bk. v. Cor- Weekly Law Bulletin, 273 ; and see
bett, 5 Sawy. 543 ; lie Melvin, 17 the facts in Case v. Beauregard, 99
Bankr. Reg. 543 ; Bishop u Hubbard, U. S. 119, and see Francklyn v.
23 Cal. 514; GiU v. Lattimore, 9 Lea, Sprague, 131 U. 8. 315, 338.

583

§ 562. CONDUCT OF THE BUSINESS.

§ 561. DMding up the assets. — So if the partners divide
up the property between themselves, the same rule applies.
This is in effect a sale by each to the other, the release of the
separate interests being the consideration; neither has a lien
on the share of the other, and the joint creditors therefore
can obtain none.'

A sale or division of property could not become unlawful
as to individual creditors, of one of them, for the other part-
ners in effect acquire no property in his share, but only
separate their own from his.^

§ 562. Authorities restricting the right to sell. — Many
cases hold that if the firm is insolvent, or on the eve of in-
solvency, and both partners are also insolvent, a purchase
by one-partner of the interest of the other in consideration
of the former's assumption of the debts is upon a considera-
tion which is of no value whatever, and, according to the
English and many American authorities', no equivalent hav-
ing been given, the transfer is in effect voluntary, and its
only effect, if sustained, would be to hinder partnership
creditors, and hence is deemed ineffectual to convert the
joint ■ property into separate property as against the cred-
itors.

1 Llngen u. Simpson, 1 Sim. & Stu. Parks,. 3 Humph. 95: Holmes v.

600; Crane u Morrison, 4 Sawy. 138; Hawes, 8 Ired. (N. Ca.) Eq. 21;

17 Bankr. Reg. 393; Moline Wagon McKinney v. Baker, 9 Oregon, 74

Co.w Eummell, 14 Fed. Eep. 155; 13 (they divided assets, each assuming

id. 658 ; 3 McCrary, 307 (reversed in certain debts and one assigning his

part as Huiskamp v. Moline Wagon share for the benefit of his creditors) ;

Co. 131 U. S. 310); Robertson i>. ' Wiesenf eld u Stevens, 15 S. Ca. 554;

Baker, 11 Fla. 193; Marlin v. Kirk- Burtus v. Tisdall, 4 Barb. 571; and

sey, 23 Ga. 164 ; Poole v. Seney, 66 see § 283. Contra, Ra-nsom v. Van

Iowa, 503, they divided the prop- Deventer, 41 Barb. 307; Schiele v.

erty and each mortgaged his share Healy, 61 How. Pr. 73; Wilkinson v.

for individual debts, held not fraud- Yale, 6 McLean, 16.
ulent per se; Jones v. Lusk, 2 Met. 2 Atkins v. Saxton, 77 N. Y. 195

(Ky.) 356; Mechanics' Bank v. Hil- Weaver v. Ashoroft, 50 Tex. 427

dreth, 9 Cush. 356 ; Giddings v. Pal- Darland v. Rosencrans, 56 Iowa, 133

mer, 107 Mass. 269; Crosby v. Nichols, Griffin v. Cranston, 10 Bosw. 1 ; 1 id.

8 Bosw. 450; Sigler v. Knox Co. 381.
Bank, 8 Oh. St. 511; Whitmore v.

584

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 563.

In Ex parte Mayou, 4 DeG. J. & S. 664; 11 Jur. N. S. 433; 12 L.
T. N. S. 629, the partners were in financial straits and were being
sued, and having failed to obtain a renewal of accommodation, de-
termined to dissolve, and one conveyed all his interest to the other,
the latter expressing in the deed his intention of continuing the'
business and covenanting to pay all the debts within three years
and to indemnify the other against them; but as both partners were
insolvent the covenant was worthless, and hence was not a consid-
eration. A few days afterwards a petition in bankruptcy was filed
against them and the deed was attacked as in fraud of creditors.
The transfer was held fraudulent under the bankrupt law, and
under the statute as to voluntary conveyances, " because it had for
its immediate and necessary object and consequence the alteration of
the property in such a mariner as would defeat or delay the joint
creditors." '

§ 563. Examples.^ In Sanderson v. Stockdale, 11 Md. 563, the
court stating that partnership creditors have no greater rights or
lien than do separate creditors in individual property, and that the
joint property may therefore be bona Jide assigned to one or more
partners, say that a fraudulent assignment by an insolvent firm to de-
fraud creditor^will be relieved against, holding that on bill by a part-
nership creditor charging that the firm is insolvent, that the effects

1 In re Caton, 34 Up. Can. C. P. 308, Caldwell v. Bloomington Mfg. Co. 17
following above case ; Ex parte id. 489 ; Moorehead v. Adams (Neb.),
Walker, 4 DeG. F. & J. 509 ; Ander- 36 N. W. Rep. 343 ; Tenney v. John-
Bon V. Maltby, 3 Ves. Jr. 344; BuUiter son, 43 N. H. 144; Caldwell v. Scott,
V. Young, 6 El. & B. 40; Ex parte -54= id. 414; Burtus v. Tisdall, 4 Barb.
Sliouse, Crabbe, 483 ; Collins v. Hood, 571 ; Ransom v. Van Deventer, 41 id.
4 McLean, 186 ; Wilkinson v. Yale, 6 307 ; Heye v. Bolles, 3 Daly, 331 ; 83
id. 16; Iri re Waite, 1 Low. 307; 1 How. Pr. 366; Menagh v. Whitwell,
Bank'r. Reg. 373; In re Cook, 3 Biss. 53 N. Y. 146, 163; 11 Am. ReiD. 683
133 ; Re Long, 7 Ben. 141 ; 9 Bankr. (but in Stanton v. Westover, 4 N. E.
■ Reg. 337 ; Re Tomes, 19 Bankr. Reg. Rep. 539, the transfer was sustained,
36 ; Johnston v. Straus, 36 Fed. Rep. both parties believing themselves
57; Conroy v. Woods, 13 Cal. 636; solvent and the buyer's failure not
Saloy V. Albrecht, 17- La. Ann. 75 ; having occurred until five months
Sanderson v. Stockdale,' 11' Md. 563; afterwards, during all of which time
Flack V. Charron, 39 id. 311 ; Phillips the property could have been levied
V. Ames, 5 Allen, 183; Phelps v. on and he was ready to pay debts);
McNeely, 66 Mo. 554; 37 Am.- Rep. Weaver v. Ashcrof t, 50 Tex. 437 ; Da-
378; Roop v. Hferron, 15 Neb. 73, and vid v. Birchard, 53 Wis. 493, 497.
comments on this case in 17 id. 489 ;

585

§ 563. CONDUCT OF THE BUSINESS.

have been and are being misapplied and appropriated to the private
purposes of individual partners, by which the creditors are hindered
and defrauded, that a dissolution by the retirement of tvro partners
was in furtherance of the scheme and irreparable damage is threat-
ened; an injunction will be granted to prevent the transfer of all
partnership effects, including those in the possession of any indi-
vidual partner and those belonging to the -late firm and conveyed
by it to any partner by any act not bona fide, and a receiver will be
appointed if necessarj'.'

In Phelps V. McNeely, QQ Mo. 534 (27 Am. Rep. 378), where the
firm was insolvent and one partner sold out to the other and re-
tired, the latter agreeing to pay the debts, and afterwards mort-
gaged all the assets for an individual debt incurred before dissolution,
the dissolution and mortgage was held a nullity as against the prior
claims of joint creditors. This case follows Tenney v. Johnson, 43
N. H. 144,' but it must be remembered that in New Hampshire the
partnership creditors' equity is inherent in themselves and not en-
tirely dependent upon the equity of the partners.'

In Marsh v. Bennett, 5 McLean, 117, the retiring partner as-
signed all his interest to his copartner, " for the purpose of paying
off the creditors," and the vendee's subsequent assignment for cred-
itors with preferences was called a violation of the trust. In this
action the firm was much embarrassed at the time of the sale, and
eight months afterwards the continuing partner went into bank-
ruptcy, and on distribution of the assets the sale was held void, as
depriving the creditors of their priority over the separate creditors
of the bankrupt.

In Roop V. Herron, 15 Neb. 73,* a retirement by one partner and
conveyance by him of all his interest to the other, who agreed to
pay the debts, butturned over $500 worth of assets in paymeoit of
a debt of $250 to his separate creditor, all the parties knowing the

'S. p. Johnston v. Straus, 26 Fed. take all the assets and pay all the

Eep. 57 ; but Coakley v. Weil, 47 Md. debts, and thereupon his separate

277, recognizes an assignment for the creditors levied attachments, but the

equal benefit of joint and separate partnership creditors were held to

creditors. have superior rights.

2 Tenney v. Johnson was where 3 s. P. Collins v. Hood, 4 McLean,

partners submitted their disagree- 186.

ments to arbitration and an award * And comments on it in Caldwell

was made that one partner should v. Bloomington Mfg. Co. 17 Neb. 489.

586

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 563.

firm to be insolvent, was held void as against the joint creditors,
who attached subsequently, the court saying that a partner in an
insolvent firm could not divest the property of its distinctive char-
acter by simply assigning his interest to the copartner.

In Ex parte Morley, 8 Ch. App. 1026, by the articles of partnership
between T. White, Sr., and his sons, on the dea,th of T. White, Sr.,
all the property and business was to belong ,to his representatives,
who were to continue the business, paying the junior partners cer-
tain amounts for their interests, and the firm was insolvent at the
death of T. White, Sr., and one son, who was the exfecutor, con-
tinued the business and bought more assets, it was held that the
original assets which remained in specie continued joint propertj^;
that the deed did not change the right of the surviving partners,
they being liable for the debts, to insist on the assets being applied
to them. Perhaps in such a case the provision of the articles should
be regarded as impliedly conditioned on insolvency of the firm.'

In Re Walker, 6 Ont. App. 169, the business was continued by
oue of the partners who assumed the liabilities, and original assets
remaining in specie were held primarily applicable to the joint
debts. The case follows Ex parte Morley, supra, but the terms of
contract between the outgoing and continuing partnersi are not
given.

In Bank v. Smith, 26 W. Va. 541, the partners of an insolyent
firm tried to conv'ey away partnership real estate to avoid the judg-
ment of debts, and the conveyances were set aside and the land sold
on application of the creditors. The court will grant the relief with-
out decreeing a dissolution or settling the accounts of the partners
inter se.

A sale of his interest to his copartner by an insolvent copartner
is void as in fraud of the bankrupt act, if within the forbidden
period.''

A conveyance by an insolvent firm to one partner in fraud of the
bankrupt law can be assented to by the joint creditors, who can
thus come upon the separate estate pari passu with the separate
creditors.'

iSeelwre Simpson, 9 Ch. App. 471; Crampton v. Jerowski, 3 Fed.,
T'll'i; Ex parte Dear, 1 Ch. D. 519; Rep. 489; Be Johnson, , 2 Lowell,
Ex parte Manchester Bank, 13 id.

it.
587

129.

9 17 \Ex parte Butcher, 13 id. 465. ' Be Johnson, 3 Low. 129 ; Be Long,

2 Wilson «. Greenwood, 1 Swanst. 7 Ben. 141; 9 Bankr. Eeg. 237.

§ 564. CONDUCT OF THE BUSINESS.

§ 564. Withdrawing funds if a gift is fraudulent.— If the
firm is insolvent, a withdrawal of the amount of funds or
of his original capital by one partner, or otherwise drawing
from the joint fund an amount in excess of what he is en-
titled to, knowing that the joint creditors will not have suf-
ficient, whether this is by gratuitous permission of his
copartners or under a right tp do so given by the articles of
partnership, is, as a matter of course, a conveyance in fraud
of the rights of partnership creditors, and doubtless also of
the separate creditors of the other partners, foi* it is in ef-
fect a gift; and if the court can get possession of the fund
before the retiring partner has collected it, they will treat it
as partnership assets.

In In re Kemptner, L. R. 8 Bq. 286, K., in the firm of K. & Co.
of Yokohtima, Japan, being about to go to England, sought to
■withdraw £4,000, standing to his credit on the books, which under
the articles he was entitled to do, and bills for the amount drawn
to the firm's order by Japan banks on London banks were purchased
with partnership moneys and delivered to him. K. died on the pas-
sage over, and the surviving partner having assigned in bankruptcy,
their trustees and K.'s executors both claimed the bills. Sir R.
Malins, V. C, held that, whether fraudulently intended or not,
made no difference; the firm being deeply insolvent, K. must be
taken to know this, and cannot treat his firm as solvent. And in
such a case if any accident has prevented the partner from possessing
himself of the assets of the creditors, the court is bound to exercise
all its power to prevent a transaction so grossly improper as this.'

1 Se SauthofE, 16 Bankr. Reg. 181 ; was indebted for buildings upon it,
8 Biss. 35 ; 5 Am. Law Rec. 173, used partnership funds to pay these
where on dissolution the partners debts ; this was held fraudulent as to
divided the assets, and one invested creditors. Edwards v. Entwisle, 3
his in a homestead; this was held Mapkey (D. C), 43, 61, here a partner
subject to partnership debts. Be bought property in his wife's name
Melvin, 17 Bankr. Reg. 543, here the with firm funds, " thus compelling
partners sold some of the assets and partnership creditors to pay oontri-
divided the proceeds when insolvent, bution to separate creditors," and
investing them in property claimed Cartter, C. J. , said that the part-
as exempt. Phipps v. Sedgwick, 95 nership creditors could recover.
U. S. 3, here one partner who had Ransom v. Van Deventer, 41 Barb,
bought property for his wife, and 307, here they divided up the assets,

588

CONVERSION OF- JOINT INTO SEPAr.VTE PROPERTY. §505.

Drawing reasonably small amounts for individual expenses and
obligations, although, the firm is in some difficulty, but with rea-
sonable hope of extricating it, is not fraudulent so as to sustain at-
tachment.' In Turner v. Jaycox, 40 N. Y. 470, 475, part of the
contract of partnership was that, if either of the partners, who
were brothers, owed any debt, it was to be paid out of the common
stock, and a note of the firm was given to pay their board bills, and
this was held to be a partnership debt which could be preferred
in an assignment for creditors.

§565. Paying a delbt of one partner. — A not uncommon
use of the right of absolute disposition of partnership prop-
erty is to employ firm funds to pay the separate debt of a
single partner, or mortgage the joint property to secure it.
These are not cases of the attempt of a single partner to
pay his debt with joint funds which are elsewhere exam-
ined, but of the power of all the partners^ or of one by con-
sent of all, to so appropriate their property, and they have
the same right to do so that an individual has to give away
his property; that is, an unlimited power of disposition ex-
cept as controlled by statutes against voluntary conveyances
in fraud of creditors and the similar provisions of the bank-
rupt law." .

And each used his part to pay ^Huiskamp v. Moline Wagon Co.
separate creditors ; held a fraud on 121 U. S. 310; Jewett v. Meech, 101
the joint creditors and void. Greene Ind. 289; Fisher v. Syfers, 109 Ind.
V. Ferrie, 1 Desaus. (S. Ca.) 164, here 514; Woodward v. Horst, 10 Iowa,
they divided up the supposed profits, 130; Fargo v. Adams) 45 id. 491;
and one invested his share in real George v. Wamsley, 64 id. 175 ; Jones
estate; this was ordered resold to pay v. Lusk, 3 Met. (Ky.) 356; Schmid-
a creditor of the firm ; the court held lapp v. Currie, 55 Miss. 597 (30 Am.
that their want of knowledge of Dec. 530) ; Whitney v. Dean, 5 N. JS.
their insolvency was immaterial. S49 ; Nat'l Bank v. Sprague, 20 N. J.
See, also, Richards v. Manson, 101 Eq. 13 (reversed on other points, 21
Mass. 483, 485 (dictum). Contra, id. 530) ; Potts v. Blackwell, 3 Jones
Allen V. Center Valley Co. 21 Conn. (N. Ca.), Eq. 449 ; 4 id. 58 ; Anderson
130, here they sold some of the as- v. Norton, 15 Lea, 14, 32 ; DeCaussey
sets and divided the proceeds, and it v. Bailly, 57 Tex. 665; Churchill v.
was held to be a valid conversion of Bowman, 39 Vt. 518; Camp v. Page,,
joint into separate property. 43 Vt. 739. See the criticisms upon

iMcKlnneyv. Rosenband, 33 Fed. Jones v. i Lusk, Schmidlapp v. Cur-
Rep. 785. rie, and Whitney v. Dean, and other

§ 565. CONDUCT OF THE BUSINESS.

In In re Kahley, 2 Biss. 383, the 'partners gave their notes and
mortgage to a person for an interest in their business sold by the
payee to one partner, and for money consideration put into the
'business for another partner. The bankruptcy proceedings were
begun eight months afterwards and the mortgage was sustained.

In Fargo v. Adams, 45 Iowa, 491, after a mortgage ' had been
given by one partner on the whole partnership stock to secure his
individual debt, his copartner released to him all his interest in the
stock. The mortgage was held to become valid on the entire stock
and to be superior to a later attachment for a joint debt.

In Woodward v. Horst, 10 Iowa, 120, H. & S. furnished goods to
defendant inpayment of his claim against S.' H. & S. afterward
dissolved, S. conveying his interest in the firm to H., who subse-
quently assigned for benefit of creditors. The assignee cannot re-
cover the value of the goods from defendant.

Where B., of D. & B., a firm, died indebted on individual account
to C, and his surviving partner, B., supposing the firm to be solvent,
paid C. with partnership assets and took a receipt from D.'s admin-
istratrix, and she took one from C, B.'s remedy to recover back the
money is against D.'s administratrix and not against C

In Potts V. Blackwell, 3 Jones, Eq. 449 (and on rehearing, 4 id.
58), one partner conveyed to the other by mortgage all the .effects
for alleged debts due between them, and the mortgagee assigned the
mortgage and effects to ionafide creditors of his. This was held
valid as against creditors of the firm.

Anderson v. Norton, 15 Lea, 14, held that a note by a partner in
his own name for his individual debt, with the other partners as
sureties, and secured by a mortgage, signed by all, upon real estate
of the firm, created a valid lien prior to the claims of joint cred-

itOBS.

Churchill v. Bowman, 39 Vt. 518, that the offset of a claim due
from one partner against a claim due to the firm, if consented to
by all the partners, was binding; but here there were no rights of
joint creditors involved.''

cases, in § 568. In a court of law, an i Bailey v. Clark, 6 Pick. 373.

assignment by partners of choses in 2 And so in Camp v. Page, 48 Vt.

action to the separate creditor of one 739,, where the same agreement was

will convey a, valid title as against made and the contest was between

creditors: their remedy is in equity, the partners.
Morris v. Vernon, 8 Eich. L. 13.

590

CONTERSION OF JOINT INTO SEPARATE PROPERTY. § 56G.

In Saunders v. Reillx, 105 N. Y. 12, a judgment against all the
partners on a joint debt owed by tbem as individuals, not a part-
nership debt, w.as levied upon the partnership property, which was
sold, and the buyer was held to acquire a good title, for general
creditors have no lien, and can only acquire a lien when the part-
ners have preserved their equity, and cannot therefore forbid a sale
by the sheriff when they have no judgment or execution.'

§566. Same when a fraud on creditors. — On the other
hand, however, a partnership has no greater right to make
voluntary conveyances of its property, or, what is the same
thing, use its property to pay or secure debts not its own,
when it is insolvent, or when such payment will leave it in-
solvent, or hinder or delay existing creditors, than an indi-
vidual of his separate property. A partner using his private
property to pay a joint debt is paying his own debt, though
in so doing he may prejudice his separate creditors; but a
partnership paying the private debt of one of its members
is paying what it is not liable for in law, equity or morals,
and is in effect giving away its property, and such convey-
ance, no bona fide rights intervening, is fraudulent and void
as to existing creditors if they are prejudiced thereby," as
well as to the separate creditot-s of the other partner whose
individual interest in the firm is thus given away.^

1 See, also, Marks v. Hill, 15 Gratt. 427 ; Rhodes v. Williams, 13 Nev. 20 ; '
400,^cited.in§ 567. French v. Lovejoy, 13 N. H. 458;

2 Anderson v. Maltby, 3 Vea. Jr. Ferson v. Monroe, 31 id. 463; Elliot
344; Esc parte Snowball, L. R. 7 Ch. v. Stevens, 38 id. 311 ; Kidder u Page,
App. 534 ; Brecher 'v. Fox, t Fed. 48 id. 880 ; FarwelL v. Metcalf, 63 id.
Rep. 373; Re Lane, 3 Low. 383; 10 376; Black well ?;. Rankin, 7 N.J. Eq.
Bankr. Reg. 135; Re Sauthoff, 16 153, 165; National Bank v. Sprague,
Bankr. Reg. 316; Goodbaru. Gary, 4 21 id. 580, 544; Clements v. Jessup,
Woods, 663; 16 Fed. Rep. 316; Ed- 36 id. 569, 573; Kirby v. Schoon-
wards v. Entwisle, 3 Mackey (D. maker, 3 Barb. Ch. 46, 51 ; Geortner
Col.), 43, 61 ; Keith v. Fink, 47 111. v. Canajoharie, 2 Barb. 625 ; Burtus
273 ; Patterson v. Seaton, 70 Iowa, v. Tisdall, 4 id. 571 ; Dart v. Farmers'
689;Saoly u. Albrecht, 17 La. Ann. 75; Bank, 37 id. 337; Cox v. Piatt, 33 id.
Carter v. Galloway, 36 id. 473 ; Flack 136 ; 19 How. Pr. 131 ; Knauth v. Bas-
V. Charron, 29 Md. 311 ; Phillips v. sett, 34 Barb. 31 ; Walsh v. Kelly, 43
Ames, 5 Allen, 183 ; Heineman v. id. 98; 37 How. Pr. 859 ; Lester v. Pol-
Hart, 55 Mich. 64; Cron v. Cron, 58 Iqck, 3 Eobt. 691; 38 IJow. Pr. 488;
id. 8; Kitchen v. Reinsky, 43 Mo. O'Neil v. Salmon, 35 How. Pr. 346;

591

§ 567. CONDUCT OF THE BUSINESS.

And an assignment for benefit of creditors by a firm preferring
individual creditors is fraudulent at least to that extent.'

And the same principle governs the appropriation of part-
nership funds to such individual purposes as place it out of
the reach of creditors, such as improving the homestead of a
partner, or his wife's property, or to purchase property in
the name of his wife, if the firm is insolvent."

Where, however, a firm borrowed money to pay the private debt
of one partner, as the lender well knew, but did not know that the
firm was insolvent, and gave the lender a chattel mortgage to se-
cure the loan, the chattel mortgage is valid against the firm's assignee
for the benefit of creditors.' ,

An appropriation of firm assets to pay the debt of one partner
is invalid oi^ly against existing creditors, and is valid against sub-
sequent liabilities of the firm.''

In George v. Wamsley, 64 Iowa, 175, the fitm paid a debt of one
partner, in consideration of his continuing to contribute peculiar
skill to the firm, instead of withdrawing as he desired. The consid ■
eration was held sufficient against a garnishment, by creditors of
the firm, of the money in the hands of the separate creditdr.

§ 567. Assumption of debt on moral consideration. — If,

however, the debj^ although contracted by a single partner,
be one of which the firm got the benefit, and equitably
should pay, a payment or securing of such debt by the firm

Ruhl V. Phillips, 3 Daly, 45 ; Heye v. cure it, will not be effectual against
Bolles, 3 id. 331; 33 How. Pr. 366; existing partnership creditors. Kid-
Wilson V. Robertson, 31 N. Y. 587; derv. Page, 48 N. H. 380.
Hurlbert v. Dean, 3 Keyes, 97; 3 i Jackson v. Coi'nell, 1 Sandf. Ch.
Abb. App. 438 ; Menagh v. Whitwell, 348 ; Sohiele v. Healy, 61 How.' Pr.
53 N. Y. 146 (11 Am. Rep. 688); 73; Vernon v. Upson, 60 Wis. 418;
Walker v. Marine Nat'l B'k of Erie, Willis v. Bremner, id. 633.
98 Pa. St. 574; Henderson v.Haddon, 2 place i;. Sedgwick, 95 U. S. 8;
13 Rich. Eq. 393; Snyder v. Luns- Rhodes v. Williams, 13 Nev. 30; Re
ford, 9 W. Va. 333, 338; Keith v. Sauthofl, 16 Bankr. Reg. 181; Ed-
Armstrong, 65 Wis. 335. And an im- wards v. Entwisle, 3 Mackey (D. C),
proper increasing of claims is as ille- 43, 61; Bishop v. Hubbnrd, 33 Cal.
gal as an improper diminution of 514; Stegall u Coney, 49 Mo. 761.
assets: hence, signing the firm name 3 Assignment of Stewart, 63 Iowa,
as surety for.the existing debt of one 614.

partner, or giving a mortgage to se- < Farwell v. Metcalf, 63 N. H. 376.

593

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 568.

has been held by some highly respectable authorities not to
be in fraud of creditors, though the principle on which this
rests seems rather nebulous.*

In Blackwell v. Rankin, 7 N. J. Eq. 152, 154, a confession of
judgment by a firm of R. & W. L., for a debt of an antecedent firm
of R. & W. L., was held to be the same as a confession of judgment
for the separate debt of one partner, and fraudulent; and in Hilli-
ker V. Francisco, 65 Mo. 598, it was held that a partner could not
appropriate the assets of the firm to pay debts due from the two
partners as individuals and not as a firm.

It may be stated generally that if funds are taken from one firm
and put into another, or where a new firm succeeds a former one,
and the new firm has its own creditors, they have priority in dis-
tribution of the assets over creditors of the old."

§ 568. Important cases which rest on no principle what-
eyer. — The following cases, which are too important not to
deserve specific notice, are in part contrary to the above
principle and allow the partners to use their property to pay

1 Gwin V. Selby, 5 Oh. St. 96, where the use of the flrm, and this was sus-
one partner made a purchase or loan tained. Walker t7. Marine Nat'l B'k of
for the flrm on his own credit, and Erie, 98 Pa. St. 574, where a partner,
his surety had to pay the debt; s. P. after giving his daughter a lot, and
Siegel V. Chidsey, 28 Pa. St. 279 ; Ha- promising her a deed for it, sold the
ben V. Hershaw, 49 Wis. 379, a debt lot and put the proceeds into the firm,
for supplies furnished to one partner, and the firm while insolvent gave a
but consumed by all the partners, judgment note for the debt; s. P.
who constituted one family. In Cof- Siegel v. Chidsey, 28 Pa. St. 279;
fin's Appeal, 106 Pa. St. 280, 286, this Marks v. Hill, 15 Gratt. 400, where all
principle was said to apply where a the capital was borrowed by each in-
firm assumed the debt of a partner, dividually, and the partners, finding
Incurred in borrowing his agreed themselves failing, agree that both
capital; Head v. Horn, 18 Cal. 211. debts shall be paid out of the joint
But the contrary was held in Elliot v. fund; S. P. Saunders v. Reilly, 105 N.
Stevens, 38 N. H. 311, following Far- Y. 12, 18.

son V. Monroe, 21 id. 462, and in 2 Coffin u McCuUough, 30 Ala. 107 ;

McNaughton's Appeal, 101 Pa. St. McCauly v. McFarlane, 2 Desaus. (S.

550. And so in Rose v. Keystone Ca.) 289; Menagh v. Whitwell, 53

Shoe Co. (Supr. Ct. Pa. 1886) 18 N. Y. 146; Crane v. Morrison, 4

Weekly Notes, 565, a firm confessed Sawy. 188 ; 17 Bank. Reg. 893. See

judgment in favor of the wife of a Lester v. Pollock, 3 Robt. (N. Y.) 691 ;

partner, from whom her husband and §§ 555-558.
borrowed money, which had gone to
Vol. 1—38 593

§ 5G8. CONDUCT OF THE BUSINESS.

the debt of one of their number, leaving partnership cred-
itors unable to obtain payment. Granting that the partners
have the same right of absolute disposition that an indi-
vidual has, and that insolvency or inability to pay is too
uncertain a test to mark the point where they should be de-
prived of that right; granting further that one partner may
sell out his interest to the other, who then holds the assets
as his individual property and can assign it for the benefit
of creditors without distinction of class, letting the separate
creditors in pari passu with the joint creditors, or can pay
them preferentially, yet even here the retiring partner has
not given away his property, but has sold it to his copart-
ner and received value, and in legal contemplation the value
he has received can be reached by creditors, though subject
to homestead or exemption laws. But the class of cases
below ought not to have been decided as belonging to the
above categories, for they sustain the voluntary use of one
partner's property in the firm to pay the separate debts of
the other partner at the expense not only of his own sepa-
rate creditors, but, of the partnership creditors. The state-
ments that there was no fraud and that a fair price was
given are but a Juggle of words. No price was given to the
person whose property was placed beyond the reach of his
creditors. As to him it was a gift, and not a sale, and, if
so, is fraudulent in law, independent of motive, and should
be governed by the statutes as to voluntary conveyances,
namely, that a gift by a person in debt is valid if he have
sufficient property left to warrant his being generous before
he is just, and if not, not. The mere fact that no benefit
was reserved should not determine the validity of the trans-
action.

la Sigler v. Knox County Bank, 8 Oh. St. 511, the facts, some-
what simplified, are as follows: Wm. H. and S. A. Sigler were part-
ners, having a stock of goods which invoiced at full value $3,230.94
W. H. Sigler was indebted on his private account to his father,
Jacob Sigler, for money loaned and as surety for him for ovei
$1,200. The firm was indebted to A., H. & Co. for $1,000 and to
the Wayne County Bank for $l,000,-for both of which debts Jacot

594

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 668.

was surety. The firm also owed the Knox County Bank $500.
The two partners sold, and delivered to Jacob their entire assets at
the full value of $3,230.94, to be paid for by him by paying, first,
his own claim; second, the firm's debt to A., H. & Co.; and, third,
the firm's debt to the Wayne County Bank. The Knox County
Bank, having obtained judgment against the firm on its debt, now
seeks to subject the assets in the hands of Jacob to payment. The
coijrt found that there was no actual fraud in the transfer, and that
Jacob, being apprehensive of the solvency of the firm, desired
merely to secure himself. The court state the general doctrine that
creditors have no lien; that the right to have assets applied to debts
is a personal right of the partners themselves, and that when the
partners have parted with this right the priority worked out by
courts to the creditors is also extinguished. That the partners, by
unanimous consent, can appropriate the assets to pay the debt of
one of their number. They deny that this right of appropriation
can be exercised only while the firm is actually solvent and carry-
ing on its business, and hold that mere insolvency, no fraud inter-
vening, will not deprive the partners of their right to sell and
dispose o£ the property as they deem just and proper. That it
would never do to adopt a rule so uncertain as that the power of
the partners' over the joint property is to cease whenever the assets
for the time being are insufiicient to discharge their liabilities, for
such a rule would be productive of much inconvenience, injustice
and uncertainty. That the true rule should be that the power of
partners thus to act ceases upon the issuing of a commission of
insolvency, but not from mere inabiliiy at the time to pay debts;
and the court reversed the decree of the lower court, which had
awarded a recovery against Jacob as a trustee to the creditors. ■

In McDonald, v. Beach, 2 Blackf. 55, a somewhat similar trans-
action was sustained on the same ground.

In Schmidlapp v. Currie, 55 Miss. 597 (80 Am. Rep. 530), two
partners in the liquor business assented to the transfer by one of
them of the entire stock to pay an individual debt of such member.
The court sustained the transaction because joint creditors have no
lien, and the partners have a right of disposition and reserved no
benefit to themselves.

So in Whitney v. Dean, 5 N. H. 249, two of three partners, with
the assent of the third, pledged partnership property to pay a note

595

§ 569. CONDUCT OF THE BUSINESS.

of the two, and the firm failed two or three days afterwards. The
transaction was held valid.

In Woodmansie v. Holcomb, 34 Kan. 35, the entire stock was
sold to the father of one of the partners, the consideration consist-
ing chiefly in debts due him from the son. A refusal to charge
that a transfer of partnership property to pay a separate creditor
is fraudulent as to creditors if no property is found for them to
levy upon was held properly refused because it would include a
, transfer by a solvent partnership. The court say that by the weight
of authority, mere insolvency, where no actual fraud intervenes,
will not deprive the partners of their legal control and right of dis-
position, and if the separate creditor purchases from the firm in
good faith and for a fair price, such purchase is not per se fraudu-
lent as against separate creditors.

In Schseffer v. Fithian, 17 Ind. 463; Jones v. Lusk, 2 Met. (Ky.) 356,
and Nat'l Bank of the Metropolis v. Sprague, 20 N. J. Eq. 13, both
partners were indebted as individuals to the person to whom they
conveyed or mortgaged property of the firm to pay or secure the
debt to the prejudice of partnership creditors; but the courts up-
holding the transaction do not do so upon the ground that this
may have relieved the cases from being the use of the property of
one man to pay the debts of another, for the relative interest of
each partner in the firm is not disclosed, but the cases are put upon
the ground of absolute right of disposition.

But in Day v. Wetherby, 29 Wis. 363, A. & B., a firm indebted
to a bank, dissolved and took in C, forming a new firm, which pur-
chased property chiefly with the assets of the old firm, and con-
veyed the property to secure the debt due the bank by the old firm,
and this conveyance was held valid against creditors of the new
firm; or if C. intended the conveyance to secure a debt due from the
new firm, this efiect will not be given to it beyond the extent of
his interest. And see Fisher ii Syfers, 109 Ind. 514.

§ 669. Convey ances of separate property. — A conveyance
or application by a partner of his individual property to 'pay
a partnership debt is not regarded as fraudulent towards his
separate creditors, for he is merely making preferences
among his own creditors.^

1 Elgin National Watch Co. v. Loan Soo. v. Gibb, 21 Cal. 595 ; Utley
Meyer, 30 Fed. Eep. 659; Savings & v. Smith, 24 Conn, 290; Evans v.

596

CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 569.

In Utley v. Smith, 24: Conn. 290, C, the owner of a husiness, took
in as partners two of his principal creditors, they believing that
the profits would be such as to pay or secure their claims, and act-
ing in good faith, and this was held not to be a fraud on other
creditors. After dissolution and an assignment by 0. for benefit of
creditors, one of the partners paid certain debts of the firm out of
funds conveyed by C. to the firm. This was held to be a proper
application of the funds, because they are partnership property.

In states where the creditors of the individual partner
are preferred to the joint creditors in the distribution of the
separate estate, an assignment by a partner of his separate
property for the benefit of or preferring his separate cred-
itors is valid,' and the instrument will be construed, if pos-
sible, as intended to avoid the appropriation of either kind
of property to the other set of creditors, but will devote each
to its own class, even though no distinction has been made
by the assignor; ^ and an assignment of the separate prop-
erty for the benefit of joint creditors is either void or inures
to the separate creditors.'

Hawley, 3,5 Ind. 83; Hardy u Over- 2 Bank of Mobile v. Dunn, 67 Ala.

man, 36 Ind. 549; TIalbot v. Pierce, 381; Murrill «. Neill, 8 How. (U. S.)

14 B. Mon. 158 ; Newman v. Bagley, 414 ; Eyre v. Beebe, 38 How, Pr. 333 ;

16 Pick. 570 ; Kirby v. Schoonmaker, Friend v. Michaelis, 15 Abb. N. Gas.

3 Barb. Ch. 46, 50 ; Crook v. Rinds- 354 ; Crook v. Rindskopf, 105 N. Y.

kopf, 105N. Y.'476{rev. s. C. 34Hun, 476; Andress v. Miller, 15 Pa. St.

457); Auburn Exchange Bank v. 316; McCullough v. Sommerville, 8

Fitch, 48 Barb. 344 ; Evans v. Howell, Leigh, 415.

84 N. Ca. 460; Gadsden v. Carson, SHolton v. Holton, 40 N. H. 77;

9 Rich. Eq. 253; Gallagher's Appeal Jackson v. Cornell, 1 Sandf. Ch. 348;

(Pa.), 7 Atl. Rep. 337; Whitmore v. O'Neil v. Salmon, 35 How. Pr. 248;

Parks, 3 Humph. 95 ; Straus v. Kern- Pennington v. Bell, 4 Sneed, 200,

good, 21 Gratt. 584, 590 ; Morris v. though a firm debt is joint and sev-

Mprris, 4 Gratt. 393 ; Stewart v. eral. In Collomb v. Caldwell, 16 N.

Slater, 6 Duer, 83, but this case Y. 484,Jt was held that if an assign-'

seems to say that the separate cred- ment for the benefit of partnership

itors, as a class, could successfully creditors include separate property,

attack the conveyance, though it is leaving out separate creditors, it is

lield not to be void. void. And see Stewart v. Slater, 6

1 Evans v. Winston, 74 Ala. 349 ; Duer, 83 ; Smitli v. Howard, 20 How.

Lord V. Devendorf, 54 Wis. 491 ; Hoi- Pr. 131 ; Averill v. Loucks, 6 Barb,

ton V. Holton, 40 N. H. 77, and 470 ; Van Rossum v. Walker, 11 id.

earlier N. H. cases therein cited. 237. Contra, that the separate cred-

597

§ 58». CONDUCT OF THE BUSINESS.

A voluntary conveyance by a. partner of his individual estate
may be attacked by a partnership creditor as well as by an individ-
ual creditor. Whether a judgment and execution must first be
had depends on the practice in each state governing fraudulent
conveyances.'

itoi's have not such an exclusive elusion of partnership debts, is

claim upon the separate property void.

that an assignment of it for the bene- 'Randolph v. Daly, 16 N. J. Eq.
fit of partnership creditors is void, 313 (holding, also, that the other part-
Newman V. Bagley, 16 Pick. 570 ; ner is not a necessary party) ; Forbes
Gadsden «. Carson, 9 Rich. Eq. 253. v. Davison, 11 Vt. 660; Barhydt v.
In Morris v. Morris, 4 Gratt. 293, it Perry, 57 Iowa, 416 (holding, also,
was held that if a partner by will that subsequent creditors whose
subjects his real estate to the pay- property had gone to pay off prior
ment of his debts the joint creditors creditors would be subrogated to
could share with the separate cred- their right to attack the conveyance),
itors. See, also, Straus v. Korngood, Hardy v, Mitchell, 67 Ind. 485, holds
21 Gratt. 584, 590. In Goddard v. that the partnerehip creditor must
Hapgood, 25 Vt. 851 (60 Am. Dec. aver that there are no separate debts,
272), it was said that an assignment or that there would be a surplus after
of separate property to pay individ- payment of them. Also, that both
nal debts and return the residuum sets of creditors could join in set-
to the assignor, if it means the ex- ting aside the conveyance.

598

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