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 \WE UNIVERS/^ 

 
 THE LAW 
 
 OF 
 
 PAETNEESHIP. 
 
 BY 
 
 CLEMENT BATES, 
 
 JCDOE OF THE COMMON PlEAS CoUET, HAMILTON CJonNTY, OhIO; 
 
 author of 
 
 "Ohio Digest," "Pleadings, Parties and Forms dndeb 
 THE Code," and "Limited Paetnebship." 
 
 YOL. I. 
 
 CHICAGO: 
 
 T. H. FLOOD AND COMPANY. 
 
 1888.
 
 t 
 % 
 
 Entered according to Act of Congress, in the year 1888, by 
 
 CLEMENT BATES, 
 In the Office of the Librarian of Congress, at Washington. 
 
 -r , 
 
 \2t2 
 
 STATE JOURNAL PRINTING COMPANY, 
 
 PBINTEUS and STEHEOTYPEItS, 
 MAUISON, 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 index. To find this, involved 
 examining each volume of reports, one by one, and making 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 Bruns^vick, 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 
 
 723538
 
 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 
 iwhich 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 been 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. 
 
 ClNOIN']S"ATI, jAiTUARY, 1888.
 
 CONTENTS. 
 
 VOLUME I. 
 PART I. NATUEE AND FORMATION. 
 
 CHAPTER I. PARTNERS AND PARTNERSHIP DEFINED. 
 
 Definition, 1. Kinds of Partners and Partner- 
 
 Is a contract relation, 8. ship. 
 
 Not created by implication of Active and ostensible, 9. 
 
 law, 3. Secret or dormant, 10. 
 
 Defective corporations, 4-7. Nominal, 11. 
 
 Firm becoming incorporated, 8. Kinds of partnerships, 12. 
 
 Universal partnerships, 13. 
 
 Mining partnership, 14. 
 
 CHAPTER II. TESTS OF A PARTNERSHIP. 
 
 Inter se and as to third persons, 15. II. Sharing Profits, Nothing Be- 
 
 Earlier English law, 16. ING Said as to Losses. 
 
 Intention, 17. With joint capital, 81. 
 
 Mutual agency a test of intention, 18. Illustrations of true partnerships, 32. 
 
 Modern law — English, 19. Illustrations of partnership as to 
 
 Independent contractors dividing third persons, 33. 
 
 profits of a job, 20. Where one furnishes all the capi- 
 
 Loan on profits as interest ; annuity tal, 34. 
 
 creditor, 21. Investments on joint account, 35. 
 
 Same with large powers of control, Without co-ownership in the. busi- 
 
 23- ness, 36. 
 
 Influence of Cox v. Hickman in Control or power of disposition as a 
 
 America, 23. test, 37. 
 
 Proximate tests of intention, 24. Contracts to manufacture in which 
 
 , „ ^ ^ ^ each is principal, 39. 
 
 I. Sharing Both Profits AND Loss. ,ht, S^^- • • ., , .„ 
 
 Where profit is a joint fund, 40. 
 
 With a common stock, 26. Services in procuring sales, 41. 
 
 Same ; services, 27. Arrangements to collect a debt, 42. 
 
 Wlien one contributes whole capi- Profits as compensation for services, 
 
 tal. 28. 43. 
 
 Sharing profit and loss, when not a Profits as rent, 45. 
 
 partnership, 29. Profits as interest on loans, 47. 
 
 V
 
 VOL.L 
 
 CONTENTS. 
 
 Part I, Ca V. 
 
 Executors and trustees as partners, 
 
 51. 
 Other representatives, 54, 
 Annuitants, 55. 
 
 IIL Sharing Profits With Stipu- 
 lation Against Losses, 56. 
 
 Sharing losses only, 57. 
 
 IV. Sharing Gross Receipts, 58. 
 Working or letting on shares, 59. 
 
 brokers, 60. 
 
 though both furnish ez])enBe8 
 
 or outlays, 61. 
 
 herding, 62. 
 
 tenants in common dividing re- 
 turns, 63. 
 
 Joint enterprise not for profit, 64. 
 
 pooling arrangements, 66. 
 
 common fund, 67. 
 
 Cheese factory, 68. 
 
 Patents, 69. 
 
 Ship-owners, 70. 
 
 Joint cargo, 71. 
 
 CHAPTER III. JOINT STOCK COMPANIES, CLUBS AND GRANGES. 
 
 Joint stock companies, 72. 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 futuro, 81. Promoters of corporations, 89. 
 Conditions precedent, 83. 
 
 CHAPTER V. BY HOLDING OUT. 
 
 In general, 90. 
 
 Plaintiff's knowledge necessary, 91. 
 Holding out to the world is erro- 
 neous, 93. 
 criticism and suggestion, 93. 
 
 Language amounting to a holding 
 
 out, 101. 
 In tort, 102. 
 
 Confers no rights inter se, 103. 
 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, lOS. 
 98. Actions by and against nominal part- 
 
 What constitutes a holding out, 99. ners, 109. 
 
 retaining the old name, 100. 
 
 vi
 
 Vol. L 
 
 CONTENTS. 
 
 Part I, Ch. VIL 
 
 CHAPTER VL ILLEGAL PARTNERSHIPS. 
 
 As to persons, 110. 
 
 in a public office, 111. 
 
 As to occupations, 118. 
 
 bidders on public contracts, 
 
 113. 
 
 nontracts 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. 
 
 L Refused between wrong-doers, 119. 
 
 part of the business legal and 
 
 part not, 121. 
 Motives, 122. 
 
 II. Where the illegality is wholly a 
 thing of the past, 123. 
 
 III. When not wholly past, 124. 
 Brooks V. Martin, 125. 
 Explanations of Brooks v. Martin, 
 
 126. 
 
 Cases enforcing payment of bal- 
 ances, 127. 
 
 Cases denying payment, 128. 
 
 Neglect to register, 129. 
 
 CHAPTER VII. 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. 
 
 Married 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, 142. 
 Rights and powers iiiter 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. 
 Judgiueut a partnership debt, 149. 
 Firm as partner in another firm, 1-50. 
 
 Dormant Partner. 
 
 Who is a, 151. 
 
 the firm name not decisive, 152. 
 
 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. 
 
 Delectus Personarum. 
 
 In general, 158. 
 
 Cannot make the firm partner in 
 other concerns, 159. 
 
 Consent in advance, 160. 
 
 Ratification and acquiescence, 161. 
 
 Effect inter se of sale of share, 163. 
 
 Partnerships without delectus per- 
 sonarum, 163. 
 
 Sub-Partnerships. 
 
 Sub-partner not a member of princi- 
 pal firm inter se, 165, 
 
 Nor has he a right to accounting, 
 167. 
 
 Nor is he a partner as to creditors, 
 16S. 
 
 Rights of sub-partners inter se, 169. 
 
 Vll
 
 Vol. L 
 
 CONTENTS. 
 
 Part II, Ch. I. 
 
 CHAPTER VnL FIRM AS AN ENTITY. 
 
 Opposing conceptions of a firm, 170. Licenses, 178. 
 
 Taxation of a firm, 175. Filing of chattel mortgages, 179. 
 
 Branch business, 177. , 
 
 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, 
 
 Assignee's rights, 187. 
 
 Mortgage of share to a partner, 
 
 188. 
 Whether sale of shares separately la 
 
 a sale of the whole, 189. 
 
 186. 
 
 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. 
 
 Power 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, 203. 
 Other name by assent, 203, 
 Particular authority executed in 
 
 wrong name, 204, 
 Credit to firm under wrong name, 
 
 205. 
 Where the partners are plaintiffs, 
 
 206. 
 
 PART 11. CONDUCT OF THE BUSINESS. 
 
 CHAPTER I. ARTICLES OF PARTNERSHIP, 207. 
 
 Statute of frauds, 208. 
 
 Oral evidence, 210. 
 
 Altered by conduct and construed by 
 
 practice, 311. 
 Provisions not acted on, 213. 
 unanimous assent necessary, 
 
 213. 
 
 suggested restriction of above 
 
 principle, 814, 
 Ambiguities construed by firm's 
 
 practice, 215. 
 
 Continue in force if firm continues 
 after term, 216. 
 
 So of a new firm, 317. 
 
 Clauses which do not continue, 318. 
 
 Rights of third persons in, 219. 
 
 Firm name, 220. 
 
 Time partnership begins, 221. 
 
 Duration, 233. 
 
 Business to be stated, 223. 
 
 Fidelity to the firm; competing; com- 
 pensation, 224. 
 
 vm
 
 Vol. I. 
 
 CONTENTS. 
 
 Part II, Ch. III. 
 
 books and accounts, 225. 
 
 Capital, 226. 
 
 Real estate, 227. 
 
 Division of profits, 228. 
 
 Meaning of profits, 229. 
 
 Net profits, 230. 
 
 Losses, 231. 
 
 Restrictions on powers, 233. 
 
 Arbitration clause, 233. 
 
 power of arbitrators, 234. 
 
 Allowances for subsistence, 235. 
 Interest, 236. 
 Expenses, 237. 
 Dissolution, 238. 
 
 Covenant to indemnify outgoing 
 partner, 239. 
 
 Outgoing partner not to compete, 
 240. 
 
 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, 
 
 245. 
 
 representatives and assignees 
 
 bound, 246. 
 
 Specific performance, 247. 
 
 Good wUl, 248. 
 
 Continuance after death ; represent- 
 atives; annuitants, 249. 
 
 Penalty, 250. 
 
 CHAPTER II. CAPITAL AND PROPERTY. 
 
 What is capital, 251. 
 Other than money, 253. 
 Contribution should be free of liens 
 
 and charges, 254. 
 Right to increase it, 255. 
 Is not individual property, 256. 
 Partnership in profits alone, 257. 
 When not, 258. 
 Purchases with profits, 261. 
 Purchase by one may be advances, 
 
 262. 
 Incoming partners, 2G3, 264. 
 Acquired with joint funds, 265. 
 
 Individual property acquired at 
 
 firm's expense, 266. 
 Claims outside of scope, 267. 
 Claims for damages. 268. 
 Personal benefit, 269. 
 Insurance cases, 270. 
 
 taking in a partner, 271. 
 
 retirement of one of several 
 
 partners, 272. 
 retirement of one of two part- 
 
 ners, 273. 
 Possession, 274. 
 
 No crime against possession, 277. 
 Exclusive right of possession, 278. 
 
 CHAPTER III. REAL ESTATE. 
 
 In general, 279. 
 
 When it is part of the joint stock, 280. 
 
 procured with partnership 
 
 funds, 281. 
 improvements out of joint funds. 
 
 283. 
 — taken for debt, 283. 
 
 Books show intention, 284. 
 Use of funds not conclusive, 285. 
 Use of property not conclusive, 286. 
 Co-owners going into business, 287. 
 
 Incoming partners, 288. 
 Pennsylvania rule, 289. 
 Consequences of the conversion, 290. 
 Sales and incumbrances of share, 
 
 291. 
 The legal title; conveyances of it, 
 
 292. 
 
 same in case of death, 293. 
 
 surviving partner aided by 
 
 equity, 294. 
 Notice to third persons, 295.^ 
 
 IX
 
 Vol. I. 
 
 CONTENTS. 
 
 Part II, Ch. VI. 
 
 Conveyances in a firm name, 296. 
 
 Surplus is real estate in this country, 
 297. 
 
 Out and out conversion into person- 
 alty, 298. 
 
 Power of individual partners to bind 
 
 firm, 299. 
 Surviving partner, 300. 
 Statute of frauds, 301. 
 Partnership to trade in lands, 303. 
 
 CHAPTER IV. DUTY TO OBSERVE GOOD FAITH. 
 
 In general, 303. 
 
 in all stages, 304. 
 
 Buying interests in firm's property, 
 
 305. 
 Competing with the firm, 306. 
 Commissions from dealers, 307. 
 
 Buying out or selling to a copartner, 
 308. 
 
 Buying at execution sale, 311. 
 
 Abandonment or neglect by com- 
 plaining partner, 312. 
 
 Duty to keep accounts, 313. 
 
 Access to books, 314. 
 
 CHAPTER V. IMPLIED POWERS OF EACH. 
 
 In general, 315. 
 
 Nature of the business, 316. 
 
 -: — same as against third persons, 
 
 317. 
 Usages of similar firms, 318. 
 Usages of the same firm, 319. 
 Necessity as an element of scope, 
 
 320. 
 Incidental bent?fit, 321. 
 
 Restrictions in ai-ticles, 322. 
 
 unless known, 3i3. 
 
 proof of knowledge, 324. 
 
 Revocation of power by dissent of 
 one, 325. 
 
 limit on the right to dissent, 326. 
 
 What are trading partnerships, 327. 
 Same, 328. 
 Non-trading firms, 329. 
 
 CHAPTER VI. PARTICULAR POWERS BEFORE DISSOLUTION. 
 
 Accounts, 330. 
 
 Admissions, 331-332. 
 
 As Agents of Others, 333. 
 
 Agents and Employees of the 
 Firm, 334. 
 
 Arbitration, 336. 
 
 Assign for Creditors. 
 
 In general, 338. 
 
 Ratification, 389. 
 
 Absence as authorization, 340. 
 
 Bills and Notes. 
 In trading firms, 341. 
 In non-trading firms, 343. 
 Joint and several, 346. 
 For separate debt, 347. 
 
 Subsequent misappropriation distin- 
 guished, 348. 
 
 Signing firm name as security, 349. 
 
 real transaction considered, 351. 
 
 Bona fide holder protected, 352. 
 
 who is a bona fide holder, 353. 
 
 negligent buyer of paper, 354. 
 
 broker is not agent of buyer, 355. 
 
 usury, 356. 
 
 renewals, 357. 
 
 Notice from form of paper, 358. 
 
 Member of several firms, 359. 
 
 illustrations, 360. 
 
 Burden of proof; presumed given 
 for firm, 361. 
 
 shifting of this presumption, 
 
 362. 
 
 Ratification, 363.
 
 Vol. L 
 
 CONTENTS. 
 
 Part II, Ch. VI. 
 
 — by habit or usage, 364. 
 
 — by acknowledgment, 365. 
 
 — by acting under the unauthor- 
 ized act, 3G6. 
 
 ■by silence, 367. 
 
 Prior authority deviated from, 868. 
 declarations, 369. 
 
 Borrowing Power. 
 
 In trading firms, 370. 
 Non-trading firm, 371. 
 Form of borrowing, 372. 
 
 Buying. 
 
 In trading firms, 373. 
 
 non-trading firms, 374. 
 
 delivery to one, 375. 
 
 varying the contract, 376. 
 
 Confessions op Judgments. 
 
 No such power, and why, 377. 
 
 Assent and ratification, 378. 
 
 Valid 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, 383. 
 
 Debts due from 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, 389. 
 
 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, 395. 
 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 Property. 
 
 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, 412. 
 
 Sealed Instruments. 
 
 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, 420. 
 
 Executing partner bound, 431. 
 Remedy in equity. 423. 
 Rights of surety on the instrument, 
 
 423. 
 
 Ratification and Authority. 
 
 In general, 424. 
 
 Creditor partner's authority, 425. 
 
 Knowledge necessary, 426. 
 
 Prior acts, 427. 
 
 Failure to dissent, 428. 
 
 Acting under unauthorized contract, 
 
 429. 
 Practice, 430. 
 
 XI
 
 Vol. I. CONTENTS. Part IT, Ch. X 
 
 CHAPTER VII. POWERS OF A MAJORITY. 
 
 As to third persons, 431. In fundamental naatters, 434. 
 
 Inter se, 432. 
 
 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, 443. may be shown to be partner- 
 Firm in the name of one partner, ship note, 453. 
 
 443. election to treat it as separat« 
 
 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 stock 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 Trust Funds Used for Firm. 
 
 statutes, 467. Innocent partners not liable, 481. 
 
 Ratification, 469. Incoming partners, 482. 
 
 Nominal partner, 470. Participants all liable, 483. 
 
 Liability is joint and several, 471. Liability is joint and several, 484. 
 
 Accountability is for profits or in- 
 Frauds and Misrepresentations. terggt 435 
 
 Deceit in regard to their own prop- Following the fund, 486. 
 
 erty, 472. Repayment to the trustee, 437. 
 
 Other frauds, 473. 
 
 Misapplications of Money oe 
 Property, 474-477. 
 
 zii 
 
 Crimes, 488.
 
 Vol. I. 
 
 CONTENTS. 
 
 Part II, Ch. XIL 
 
 CHAPTER XL PAYMENT, NOVATION AND MERGER. 
 
 Application of Payments. 
 
 In general, 489. 
 
 Where firm and one partner are 
 creditors, 490. 
 
 Where firm and one partner are 
 debtors, 491. 
 
 Partnership money to be applied to 
 its debts, 493. 
 
 if creditor has no notice of nat- 
 ure of fund, 494. 
 
 individual money, 495. 
 
 If neither party specify appropria- 
 tion, 496. 
 Running account, 497. 
 
 change in debtor firm, 498. 
 
 change in creditor firm, 499. 
 
 accounts not continuous, 500. 
 
 Novation. 
 
 In general, 502. 
 
 Creditor must assent, 503. 
 
 Consideration, 505. 
 
 Original debtor still liable, 506. 
 
 incoming partner not liable for 
 
 old debts, 507. 
 may adopt old debts, 510. 
 
 assumption shown by acts; 
 
 estoppel, 511. 
 
 entries on books of new firm, 513. 
 
 examples of agreements inter 
 
 se, 513. 
 
 fraud on the incoming partner, 
 
 514 
 
 note for debt assumed by new 
 
 firm, 515. 
 
 assent of creditor, 616. 
 
 practice, 517. 
 
 Change without incoming partner, 
 518. 
 
 Old firm must be discharged, 531. 
 
 As against sureties, 523. 
 
 Note or bill as evidence of novation, 
 533. 
 
 Note of one partner before dissolu- 
 tion, 524. 
 
 Note of ostensible partner, 525. 
 
 Note in firm name after dissolution, 
 526. 
 
 Of continuing partner who assumed 
 debts, 528. 
 
 Note of surviving partner, 529. 
 
 Creditor and debtor becoming part- 
 ners, 530. 
 
 Payment by one extinguishes the 
 debt, 531. 
 
 Ektirinq Partner as Surety. 
 
 Inter se, 533. 
 
 As to creditors ; English cases, 533. 
 
 American cases, 534. 
 
 • Merger. 
 
 Judgment against one partner, 535. 
 Where partners are jointly and sev- 
 erally liable, 537-539. 
 
 CHAPTER XII. 
 
 CONVERSION OF JOINT INTO SEPARATE 
 PROPERTY. 
 
 In general, 540. 
 
 Inchoate transfers inter se, 541. 
 
 Choses in action, 543. 
 
 Taking funds without consent of all, 
 
 544. 
 Following the funds, 545. 
 
 implied assent, 546. 
 
 Delivery or change of possession, 
 
 547. 
 sale by one partner to a third 
 
 person, 548. 
 
 xm
 
 Vol. II. 
 
 CONTENTS. 
 
 Part III, Ch. IL 
 
 Retirino Partner's Equitable 
 Lien. 
 
 Retiring partner has no lien, 550. 
 Continuing partner assuming debts, 
 
 551. 
 Retention of lien by the contract, 
 
 552. 
 Remedies in such cases, 554. 
 
 Successive Firms. 
 
 In general, 555. 
 
 Retirement of old without new part- 
 ners, 556. 
 
 New partner and retirement of old, 
 557. 
 
 New partner, no old one retiring, 
 658. 
 
 Fraudulent Conveyances. 
 
 Sale between partners, 559. 
 
 authorities holding it valid, 560. 
 
 Dividing up the assets, 561. 
 
 Authorities restricting the right to 
 sell, 503. 
 
 Examples, 563. 
 
 Withdrawing funds if a gift is 
 fraudulent, 564. 
 
 Paying a debt of one partner, 565. 
 
 Same, when a fraud on creditors, 
 566. 
 
 Assumption of debt on moral con- 
 sideration, 567. 
 
 Important cases which rest on no 
 principle whatever, 568. 
 
 Conveyances of separate property, 
 569. 
 
 YOLUME II. 
 
 PART III. DISSOLUTION. 
 
 CHAPTER I. CAUSES OF DISSOLUTION. 
 
 Any change of membership, 570. 
 Partnership at will, 571. 
 Partnership for indefinite term, 572. 
 Notice to dissolve, 574. 
 Evidence of dissolution, 575. 
 
 change of name, 576. 
 
 Right 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, 586. 
 
 Sale of the entire effects, 587. 
 
 Marriage, 588. 
 
 Abandonment, 589, 590. 
 
 Misconduct, 591. 
 
 Hopelessness of success, 593. 
 
 Dissensions, 594. 
 
 Deception, 595. 
 
 Completion of enterprise, 596. 
 
 Date of dissolution, 697. 
 
 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 OF DISSOLUTION. 
 
 Necessity of, 606. 
 Dormant partner, 608. 
 Dissolution 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, 631. 
 Notoriety as a substitute for notice, 
 
 633. 
 Notice by change of name, 633. 
 Long interval of time or space, 634 
 To whom to give notice, 635. 
 On what contracts, 636. 
 Pleading and evidence, 627. 
 Holding out after, 628. 
 
 CHAPTER IV. CONTRACTS OF DISSOLUTION. 
 
 Debts due by or from retiring part- 
 ner extinguished, 629. 
 Sale to third persons. 631. 
 Debts not on the books, 632. 
 What passes by a sale of a share, 633. 
 
 Assumption of Debts by Continu- 
 iNa Partnebs. 
 
 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 api^ly assets, 641. 
 
 Examples of constructions of cove- 
 nants, 643. 
 
 What debts are included, 643. 
 
 Liabilities concealed by retiring part- 
 ner, 644. 
 
 Incoming partners, 645. 
 
 Existing claims on the property, 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 VL GOOD WILL, 657. 
 
 Does not survive, 658. Seller's solicitation of old customers, 
 
 Incident to locality oftener than to 666. 
 
 stock, 659. limitation of this doctrine, 667. 
 
 Court will protect it to effect sale, Professional partnerships, 668. 
 
 660. 
 Valuation of good will, 661, 
 in case of misappropriation, 668. 
 
 Sale of good will, 663. 
 Seller can resume business, 664. 
 So can surviving partner, 665. 
 B 
 
 Eight to Firm Name after Disso- 
 lution, 669. 
 
 Buyer's right to the old name, 670. 
 Retiring partner's name not to be 
 used, 671. 
 
 XV
 
 Vol, II. 
 
 CONTENTS. 
 
 Part III, Ch. VIII. 
 
 Continuing partner's right to old 
 
 name, 673. 
 Surviving partner's right to use 
 
 name, 673. 
 Trade name, 674. 
 Trade mark, 675. 
 
 Agreements Not to Compete. 
 
 Reasonableness of, 676. 
 Breaches, 677. 
 Injunction, 678.' 
 
 CHAPTER VII. BIPLIED POWERS AFTER DISSOLUTION. 
 
 Implied Po'wers after Dissolu- 
 tion. 
 
 In general, 679. 
 
 Power to pay debts, 680. 
 
 Power to collect and receipt for 
 
 debts, 681. 
 Power not revocable by copartners, 
 
 683. 
 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 winding 
 
 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 authority, 698. 
 Admissions after dissolution, 699. 
 Statute of limitations, 703. 
 
 revive an extinct debt, 703. 
 
 to prolong time, 704. 
 
 Contra, 705. 
 
 Unfulfilled contracts, 707. 
 
 Distinctions, 703. 
 
 time contracts, 709. 
 
 Surviving partners, 711. 
 
 CHAPTER VIIL 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, 780. 
 
 pardon of survivor, 731. 
 
 cannot join administrator as co- 
 plaintiff, 733. 
 
 Set-off of individual debts, 723. 
 
 Practice, 734. 
 
 death of a partner pen derafe lite, 
 
 725. 
 
 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, 738. 
 
 XVI
 
 Vol. II. 
 
 CONTENTS. 
 
 Part III, Ch. IX. 
 
 Duty of administrator, 740. 
 
 in case of misconduct of sur- 
 vivor, 741. 
 
 Survivor appointed executor, 743. 
 
 Purchase by survivor from executor, 
 743. 
 
 same where survivor is execu- 
 tor, 744. 
 
 ratification of same, 745. 
 
 Creditors' Remedy. 
 
 Against surviving partner, 746. 
 Estate of decedent liable, 747. 
 Englisli law, 748. 
 American law, 749. 
 Private creditors of decedent's estate, 
 751. 
 
 Solvent Partner, 752-755. 
 
 Remaining 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. 
 
 Through culpability, 761. 
 
 as to amount, 763. 
 
 Mistakes of judgment, 763. 
 Diligence, 764. 
 
 Must account for assets he has re- 
 ceived, 765. 
 
 Expenses and Outlays, 766. 
 
 Useless expenditures, 767. 
 Permanent improvements, 768. 
 After dissolution, 769. 
 
 Extra Compensation. 
 
 No right to, 770. 
 
 compensation for winding up, 
 
 771. 
 
 so of surviving partner winding 
 
 up, 773. 
 
 services in excess of mere wind- 
 ing up, 773. 
 
 Express agreements for, 775. 
 
 services in other capacity than 
 
 as partner, 776. 
 
 Implied agreements for, 777. 
 
 Amount of, 778. 
 
 Interest Charges or Allowances. 
 
 On capital, 781. 
 
 Special agreement for interest, 782. 
 
 ends at dissolution, 783. 
 
 Usury laws, 784. 
 On advances or loans, 785. 
 On general accounting, 786. 
 On balance struck, 787. 
 Misconduct, 788. 
 Compound, 789. 
 
 Clandestine Profits. 
 
 Before dissolution, 790. 
 
 Implied duty not to compete, 793. 
 
 Dealings not in competition with 
 
 firm, 793. 
 After dissolution, 794. 
 On unfinished contracts, 795. 
 Wrongful dissolutions, 796. 
 What amount to be accounted for, 
 
 797. 
 Survivor's occupation of property, 
 
 798. 
 Purchase of share at a valuation, 799. 
 Interest in lieu of profits, 801. 
 
 xvu
 
 Same when one furnishes all capital, 
 815. 
 
 Vol. 11. CONTENTS. Part IV, Ch. I. 
 
 Return of PREMnni. Capital to be repaid before dividing 
 
 In general, 802. ' P^o^ts, 813. 
 
 Partnerships at will. 803. ^°^^^^ ^^^° ^^P'^^^ '' impaired, 
 
 813 
 Options to dissolve on notice, 804. 
 
 Misconduct, 805. 
 Voluntary dissolutions, 806. 
 
 Death and bankruptcy, 807. Contrary case, 816 
 
 . ^. . onn Examples of calculatmg, 817. 
 
 Apportionment, 809, ^ , , , , r,.o 
 
 Rule altered by agreement, 818. 
 
 Order of Distribution Between Partnership in profits without title 
 
 Partners. in the property, 819. 
 Statement of the account, 810. 
 Order of distribution, 811. 
 
 CHAPTER X. DISTRIBUTION AS TO THIRD PERSONS. 
 
 Partner's lien and its consequences, what is " no living solvent part- 
 
 830. ner," 834. 
 
 The lien is not for separate debts, 821. No interest to the separate creditors. 
 
 Reaches real estate and property in 835. 
 
 name of one partner, 833. Separate estate cannot prove against 
 but not debtor's individual prop- joint estate, 836. 
 
 erty, 823. Exceptions, 837. 
 
 Creditors have no lien, 834. Joint estate cannot prove against 
 
 Joint creditors prior in joint prop- separate estate, 838. 
 
 erty and separate in separate, 835. fraud, 839. 
 
 Contrary cases, 826. dormant partnerships, 840. 
 
 Kentucky rule, 837. Double proof, 841. 
 
 So in case of deceased partner, 828. separate security, 843. 
 
 .Joint debts which are not partner- One partner cannot compete with 
 
 ship debts, 839. joint creditors against separate es- 
 
 Petitioning creditor, 830. tate, 843. 
 
 Exception in favor of government, fraud, 844. 
 
 831. but can compete with separate 
 
 No joint estate and no living solvent creditors, 845. 
 
 partner, 833. Legal liens on separate estate, 847. 
 what is " no joint estate," 833. Marshaling, 848. 
 
 PAET ly. EEMEDIES. 
 
 CHAPTER I. ACTIONS AT LAW BETWEEN PARTNERS. 
 
 In general, 849. Labor and services, 854. 
 
 Set-off, 850. Rent, 855. 
 
 Advances or loans, 851. Share of collections, 856. 
 
 Debts paid by one partner, 853. For final balance, 857. 
 
 Goods sold, 853. Express promise, 858. 
 
 xviii
 
 Vol. IL . CONTENTS. Part IV, Cn. III. 
 
 Must be in full settlement, 859. Note by one partner to another, 880. 
 
 What is an agreed final balance, 8G0. Note by firm to a partner, 882. 
 
 Partial balauce, 861. Note by partner to firm, 883. 
 
 Pleading, 862, 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- 
 
 872. 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. 
 
 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 III. SUIT FOR ACCOUNTING. 
 
 Equity jurisdiction. 907. Sometimes considered, 919. 
 Probate and admiralty jurisdiction, set off against balance, 920. 
 
 ^ ■ , . „ u ^ 4. -f Who Can Enforce an AccouNTiNa 
 
 Refused if unnecessary, but not if 
 
 merely difficult, 909. Partners, 921. 
 
 Employee on share of profits, 922. 
 
 Partial Accounting. Representatives, 923. 
 
 Must seek dissolution and winding Widow and heirs generally cannot, 
 
 up, 910. 924-926. 
 
 When granted, 911-915. Assignee, etc., of share, 927. 
 
 Settlements periodically or of dis- Sale of share on execution, 928. 
 
 tinct transactions, 916. Creditor at large, 929. 
 
 Individual Matters. Defendants. 
 
 Not included in an accounting, 917. All partners are actors and neces- 
 
 illustrations, 918. sary, 930. 
 
 xix
 
 Vol, IL 
 
 CONTENTS. 
 
 Paet IV, Ch. IV. 
 
 Successors in interest, 931-933, 
 Multifariousness, 934. 
 Creditors' rights, 935. 
 
 Pleadinq. 
 
 In general, 936-938. 
 Prayer, 939. 
 Answer, 941. 
 
 Defenses — Statute op Limita- 
 tions. 
 In general, 942. 
 Merchants' accounts, 943. 
 Contrary cases, 944. 
 When the statute begins to run, 945. 
 
 special circumstances, 946. 
 
 fraud, 947. 
 
 doctrine tliat time runs only 
 
 from last item, 949. 
 
 adverse possession, 950. 
 
 demand, 951. 
 
 laches, 952. 
 
 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 judgment or of law, 960. 
 
 Fraud, 961. 
 Burden of proof, 963. 
 Laches, 963. 
 
 Whether corrected or wholly opened, 
 964. 
 
 Practice. 
 
 Pendency of another suit, 965. 
 Decree, 966. 
 Master's report, 968. 
 Issue out of chancery, 969. 
 Keview, 970. 
 
 Personal judgment for balances, 
 971-973. 
 
 Sale. 
 
 In general, 974. 
 Specific division, 976. 
 Manner of sale, 977. 
 
 Evidence in Accountino. 
 
 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, 988. Against surviving or liquidating 
 
 Pending action for account, 989. 
 After dissolution, 990. 
 Exclusion of a partner, 991. 
 Mutuality, 993. 
 Receiver, 993. 
 Before dissolution, 994. 
 After dissolution, 995. 
 Exclusion of a partner, 996. 
 Same in winding up, 997. 
 Disagreement on winding up, 998. 
 
 partner, 999. 
 injunction against 
 
 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, 100" 
 Miscellaneous, 1008.
 
 Vol. n. CONTENTS. Pakt IV, Ch. VIL 
 
 CHAPTER V. SPECIFIC PERFORMANCE. 
 
 Generally refused, and why, 1009. 
 Older leading cases, 1010. 
 Partnerships at will, 1011. 
 for a term, 1013. 
 
 Partial performance, compelled 
 
 when, 1013. 
 In winding up, 1015. 
 
 CHAPTER VI. ACTIONS WITH THIRD PERSONS. 
 
 Parties Plaintiff. 
 
 On sealed contracts, 1016. 
 
 On mercantile paper, 1017. 
 
 On other simple contracts, 1018. 
 
 On contract with one partner, 1019- 
 1021. . 
 
 Dormant partners as co-plaintiffs, 
 1033. 
 
 Nominal partners as co-plaintiffs, 
 1033. 
 
 Assignments between partners, 1024. 
 
 Substitution of creditors; new firm 
 suing on contract of old, 1035. 
 
 After bankruptcy of one partner, 
 1026. 
 
 Non-consenting partner made de- 
 fendant. 1037. 
 
 Too numerous parties, 1028. 
 
 Amendments, 1029. 
 
 Torts against Partners. 
 
 In general, 1030. 
 
 Joint action for libel on the fii*m, 
 
 1031. 
 Separate action for libel on the firm, 
 
 1032. 
 Joint action for libel on one, 1033. 
 Other torts, 1034. 
 
 Disqualification of Plaintiff. 
 
 In general, 1035. 
 
 Authorities sustaining the disqualifi- 
 cation, 1037. 
 
 Authorities refusing to apply the 
 doctrine, 1038. 
 
 Defrauded partner cannot sue alone, 
 1039. 
 
 Disqualification as to others than de- 
 fendant, 1040. 
 
 Transaction treated as a sale, 1043. 
 
 Doctrine not applicable to counter- 
 claims, 1043. 
 
 Action sustained when guilty part- 
 ner not party, 1044. 
 
 Creditor not disqualified, 1045. 
 
 Creditor's innocence, 1046. 
 
 Bank paying individual note with 
 firm's money, 1047. 
 
 Payment in money different from 
 assets, 1048. 
 
 Defendants. 
 
 All must be joined, 1049. 
 Non-joinder, how objected to, 1050. 
 Statute making joint and several, 
 
 1051. 
 Dormant partners, 1052. 
 judgment against ostensible 
 
 alone, 1053. 
 Nominal partner, 1054. 
 Death pendente lite, 1055. 
 Amendments, 1056. 
 Appeal and error, 1057. 
 Removal to United States court, 
 
 1058. 
 
 CHAPTER VII. ACTIONS IN THE FIRM NAME. 
 
 In general, 1059. Practice, 1061. 
 
 Individual using a firm name, 1060. Summons, 1063. 
 
 xxi
 
 Vol. II. 
 
 CONTENTS. 
 
 Part IV, Ch. li. 
 
 Judgment, 1063. 
 Execution, 1064. 
 
 Cured by amendment or by judg- 
 ment and verdict, 1065. 
 Action on the judgment, 1066. 
 
 CHAPTER VIII. PLEADING. 
 
 Averment of plaintiff's partnership, 
 1087. 
 
 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, 
 1072. 
 
 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. 
 
 By or against 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. 
 
 Actual and not ostensible rights re- 
 garded, 1082. 
 Dormant partners, 1083. 
 Insolvency or non-residence, 1084. 
 
 Summons on Part. 
 
 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 genei'al, 1093. 
 
 Where some are not liable, 1094. 
 
 If all liable, 1095. 
 
 CHAPTER IX. EXECUTION AGAINST ONE. 
 
 In general, 1097. 
 
 What is the interest to be taken, 1098. 
 
 This chapter applies to firm creditor 
 
 pursuing single partner, 1099. 
 How to reach the interest; earlier 
 
 legal theory, 1100. 
 Levy on specific chattels less than 
 
 whole, 1101. 
 Title not affected, 1102. 
 Garnishment of debtors of firm, 1103. 
 Surviving partner, 1104. 
 Levy by taking exclusive possession, 
 
 1105. 
 
 Levy by a constructive seizure only, 
 in some states, 1106. 
 
 Sale of more than debtor's interest a 
 trespass, 1108. 
 
 Relief by injunction until account- 
 ing had, 1109. 
 
 Purchaser's rights, 1111. 
 
 Consequence of above doctrine, 1112. 
 
 Garnishing the other partner, 1113. 
 
 Priorities between the levy and iMer 
 levies for firm debts, 1114. 
 
 Dormant partnership, 1116. 
 
 xxu
 
 Vol. II. CONTENTS. Part IV, Ch. XI. 
 
 CHAPTER X. ATTACHMENT AGAINST THE FIRM. 
 
 Grounds, 1117. Partners as Garnishees. 
 
 On property of one for firm debt, Service upon part only, 1127. 
 
 1118. 
 
 Act of oue partner as a ground, 1120. Execution of Judgment against 
 
 Bond, 1121. ^"'^• 
 
 Miscellaneous, 1122. Property of each liable to execution, 
 
 Affidavit, 1123. ' ^^^^• 
 
 Misnomer, 1124. Exemption and Homestead Claims, 
 
 1131-1134. 
 
 CHAPTER XI. EVIDENCE OF PARTNERSHIP. 
 
 Whether a question of law or fact. Reputation, 1155. 
 
 1135. notoriety as evidence of notice, 
 
 Inter se, 1136. 1157. 
 
 By Plaintiffs or Defendants, of ^P^'^^^f ' , .', 
 
 Themselves. ^'"^^ *^ ^^'"^^ P'^^^^ "^^^ '^^^^*^' 
 
 1159. 
 By admission of opposite party, 1142. p^.j^j. judgment as evidence, 1160. 
 In disproof of alleged partnership, 
 
 1^^^' Witnesses. 
 
 By Plaintiffs or Defendants, of Except where statutes have removed 
 
 THE Opposite Party. disqualification for interest, 1162. 
 
 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 gestce, ll5i. 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. 
 
 xxiii
 
 TABLE OF CASES. 
 
 A. 
 
 ADat V. Penny, 19 La. Ann. 
 
 289, .... 174, 570 
 Abbot V. Johnson, 33 N. H. 
 
 9, - - - 213, 434, 435, 533, 
 
 574, 591 
 
 V. Smith, 2 W. Bl. 947, - 457, 
 
 1130 
 Abbott V. Dexter, 6 Cash. 108, 336 
 
 V. Jackson, 43 Ark. 212, - 136 
 
 V. Omaha Smelting Co. 4 
 
 Neb. 416, - ... 5 
 
 V. Pearson, 130 Mass. 191, 981, 
 
 1147 
 Abel V. Love, 17 Cal. 233, - 59 
 
 V. Sutton, 3 Esp. 108, 606, 685, 
 
 690, 691, 695 
 A bell. Ex parte, 4 Ves. 837, - 830 
 Abernathy v. Latimore, 19 Oh. 
 
 286, 1065 
 
 V. Moses, 73 Ala. 381, - 293 
 
 Abpt V. Miller, 5 Jones (N. Ca.), 
 
 L. 32, - - - - 510, 512 
 Abraham v. Hall, 59 Ala. 386, 467 
 Abrahams v. Myers, 40 Md. 
 
 499, .... 572, 597 
 Ackerman v. King, 29 Tex. 
 
 291, 643 
 
 Ackley v. Staehlin, 56 Mo. 558, 1038, 
 
 1042, 1046 
 V. Winkelmeyer, 56 Mo. 
 
 563, .... 557, 607 
 
 Acree v. Commonwealth, 13 
 
 Bush, 353, .... 488 
 Adam v. Townend, 14 Q. B. D. 
 
 103, 1088 
 
 Adams, Re, 29 Fed. Rep. 843, 453a 
 
 Adams, Ex parte, 3 Mont. & 
 Ayr. 157, - - - . 842 
 
 , Ex parte, 1 Rose, 305, 830, 843 
 
 V. Adams, 7 Abb. New 
 
 Cas. 292, - - 670, 671, 672 
 
 V. Bingley, 1 M. & W. 193, 679 
 
 V. Brown, 16 Oh. St. 75, 108 
 
 V. Brownson, 1 Tyler (Vt.), 
 
 452, 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, 27 N. H. 289 
 
 (59 Am. Dec. 376), - 719, 723 
 V. Kable, 6 B. Mon. 384 
 
 (44 Am. Dec. 772), 795, 917, 931 
 
 V. May, 27 Fed. Rep, 907, 1019, 
 
 1058 
 
 V. Pugh, 7 Cal. 150, - 88 
 
 V. Ruggles, 17 Kan. 237, 360. 
 
 361 
 
 V. Sturges, 55 III. 468, 477, 848 
 
 V. Ward. 26 Ark. 135, 718, 737 
 
 V. Wood, 9 Cal. 31, - 1006 
 
 V. Woods, 8 Cal. 152, - 935 
 
 Adams Bank v, Jones, 16 Pick. 
 
 574, - . - - 347, 368 
 V. Rice, 2 Allen, 480, 56, 81 
 
 Adansonia Co., Re, L. R. 9 Ch. 
 
 App. 635, - ... 440 
 Addams v. Tutton, 39 Pa. St. 
 
 447, 873 
 
 Addison v. Burkmyer, 4Sandf. 
 
 Cli. 498, .... 453 
 
 XXV
 
 Ade.] 
 
 TABLE OF CASES. 
 
 [All. 
 
 Adee v. Cornell, 93 N. Y. 573 
 (aff. 25 Hun, 78), - - - 339 
 
 V. Demorest, 54 Barb. 433, 372 
 
 Adickes v. Lovviy, 15 S. Ca. 
 
 128, 825 
 
 Adkins v. Arthur, 33 Tex. 431, 507, 
 
 1063 
 
 ^tna Ins. Co. v. Peck, 28 Vt. 
 93, 505 
 
 V. Wires, 28 Vt. 93, - - 533 
 
 Agace, Ex parte, 2 Cox, 312, 333, 
 
 1151 
 
 Agawam Bank v. Morris, 4 
 Cush. 99, - - - 453, 453a 
 
 Ah Lep V. Gong Choy, 13 Ore- 
 gon, 205, - 328, 443, 446, 1094 
 
 Aicardi v. Strang, 38 Ala. 326, 1167 
 
 Aiken v. Ogilvie, 12 La. Ann. 
 353, ... - 764,976 
 
 V. Thompson, 43 Iowa, 
 
 506, 534 
 
 Airey v. Borhani, 29 Beav. 
 
 620, 769, 773, 780, 796, 797, 809 
 
 Ajacio V. Forbes, 14 Moo. P. C. 
 
 160, 1021 
 
 Akliurst V. Jackson, 1 Swanst. 
 85, 807 
 
 Alabama Coal Mines Co. v. 
 Brainard, 35 Ala. 476, 194, 401 
 
 Alabama Fertilizer Co. v. Rey- 
 nolds & Lee, 79 Ala. 497, - 214, 
 257, 319, 322, 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, Re, 16 Ch. 
 
 D. 83, 181 
 
 Albretcht v. Sussmann, 2 Ves. 
 
 &B. 323, .... 110 
 Albright v. Voorhies, 36 Hun, 
 
 437, .... 639,633 
 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 
 Aid rich v. Lewis, 60 Miss. 
 
 229, .... 854,890 
 V. Wallace, 8 Dana (Ky. ), 
 
 287 (33 Am. Dec. 495), - 
 Alexander v. Alexander, 12 
 
 La. Ann. 588, ... 
 V. Barker, 2 Cr. & J. 133; 
 
 1101 
 
 885 
 1020 
 
 2 Tyrw. 140, - 
 
 — V. Coulter, 2 S. & R. 494, 716 
 
 — V. Crosthwaite, 44 111. 
 
 1167 
 
 476 
 
 359, 
 
 V. Georgia, 56 Ga. 478, - 
 
 V. Gorman (R. I.), 7 Atl. 
 
 832 
 
 Rep. 243, 
 
 V. Jacoby, 23 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, 220, 445, 
 
 1052 
 
 V. Morgan, 31 Oh. St. 546, 138 
 
 V. Stern, 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. 132 Mass. 423 (6 Am. & 
 Eug. R. R. Cas. 562), - 57, 66 
 
 Allan V. Garven, 4 Up. Can. Q. 
 
 B. 242, 861 
 
 Allen V. Anderson, 13 111. App. 
 
 451, 855 
 
 V. Atchison, 26 Tex. 616, 510, 
 
 646 
 
 v. Blanchard, 9 Cow. 631, 728, 
 
 1166 
 
 V. Brown, 39 Iowa, 330, 155 
 
 V. Center Valley Co. 21 
 
 Conn. 130 (54 Am. Dec. 333), 560, 
 
 564. 824 
 V. Cheever, 61 N. H. 32, - 415 
 
 XXVI
 
 All.] 
 
 TABLE OF CASES. 
 
 [And. 
 
 Allen V. Coit, 6 Hill, 318, - 439, 440, 
 
 441, 978 
 V. Davis, 13 Ark. 28, - 61 
 
 V. Duun, 15 Me. 292 (33 
 
 Am. Dec. 614), - - 91, 104 
 
 V. Erie City Bank, 57 Pa. 
 
 St. 129, - - - - 903 
 
 V. Farrington, 2 Sneed, 
 
 526, 381 
 
 V. Frunet Min. & Smelt. 
 
 Co. 73 Mo. 688, - - - 498 
 
 V. Grissom, 90 N. Ca. 90, 551, 
 
 557, 824 
 
 V. Hawley, 6 Fla, 142 (63 
 
 Am. Dec. 198), - 70, 660, 974, 
 
 820, 1007 
 
 V. Hill, 16 Cal. 113, - 715, 726, 
 
 731 
 
 V. Kilbre, 4 Madd. 464, - 754 
 
 V. Maddox, 40 Iowa, 124, 1081 
 
 V. Nat'l Bank, 6 Lea, 558, 731, 
 
 739 
 
 V. Owens, 2 Spears (S. Ca.), 
 
 170, - - 331, 447, 457, 524 
 
 V. Eostain, 11 S. & R. 
 
 362, 1155 
 
 V. Russell (Louisville Ch. 
 
 Ct. 1863), 3 Am. Law Reg. 
 
 N. S. 361, - - - - 582 
 
 V. St. Louis Bank, 120 
 
 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 (afld. on appeal, 19 W. R. 
 
 35), 
 
 V. Taylor, 24 L. T. 249; 19 
 
 677 
 677 
 
 W. R. 556, - 
 V. Wells, 23 Pick. 450 (33 
 
 Am. Dec. 757), - - 747, 847 
 V. White, Minor (Ala.), 
 
 365, 1023 
 
 V. Withrow, 110 U. S. 119, 285 
 
 V. Woousocket Co. 11 R. 
 
 I. 288, - 134, 583, 657, 943, 945 
 AUfrey v. Allfrey, 1 Mac. & G. 
 
 87, 
 
 964 , 
 xxvii 
 
 Allison V. Davidson, 1 Dev. & 
 
 Bat. Eq. 46, - - - - 716 
 V. Davidson, 3 Dev. Eq. 
 
 79, 455, 541, 760, 761, 822, 930, 971 
 Alsop V. Mather, 8 Conn. 584 
 
 (21 Am. Dec. 703), - 53, 750 
 Alspaugh V. Mathews, 4 Sneed, 
 
 216, 261 
 
 Alston V. Rowles, 13 Fla. 117, - Ihd 
 V. Sims, 24 L. J. Ch, 553 ; 
 
 1 Jur. N. S. 458, - - - 269 
 Alvord V. Smith, 5 Pick. 233, 72, 74 
 Ambler v. Bolton, L. R. 14 Eq. 
 
 427, ... - 269, 974 
 
 V. Bradley, 6 Vt. 119, - 43, 61 
 
 V. Whipple, 20 Wall. 546, 589, 
 
 591, 592, 910 
 Ambs V. Caspari, 13 Mo. App. 
 
 586, ... - 722, 724 
 American Bank v. Doolittle, 
 
 14 Pick. 123, ... - 385 
 American Bank Note Co. v. 
 
 Edson, 56 Barb. 84 ; 1 Lans. 
 
 388, 305 
 
 American Iron Mountain Co. 
 
 V. Evans, 27 Mo. 552, - 700, 701 
 American Linen Thread Co. v. 
 
 Wortendyke, 24 N. Y. 550, - 623 
 Amidown v. Osgood, 24 Vt. 
 
 278 (58 Am. Dec. 171), - 613, 628 
 Amsinck v. Bean, 23 AVall. 395, 311, 
 583, 753, 754, 836, 838, 843, 845 
 Anderson v. Ackerman, 88 
 
 Ind. 481, - - - 715, 739 
 
 V. Anderson, 25 Beav. 190, 591 
 
 V. Beebe, 22 Kan. 768, 739, 908 
 
 V. Chenney, 51 Ga. 372 - 1113 
 
 V. Henshaw, 2 Day, 272, - 524 
 
 V. Holmes, 14 S. Ca. 162, - 1025 
 
 V. Howard, 49 Ga. 313, - 646 
 
 V. Lemon, 8 N. Y. 236 (re- 
 versing 4 Sandf. 552), - - 305 
 
 v. Levan, 1 Watts & S. 334, 420, 
 
 535 
 
 V. Maltby, 2 Ves. Jr. 244, 562, 
 
 566 
 V. Martindale, 1 East, 497, I0l6
 
 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 Btock. 
 
 456, - - 340, 403, 418, 583 
 V. Wanzer, 5 How. (Miss.) 
 
 587 (37 Am. Dec. 170), - 331, 1127 
 
 V. White, 39 Mich. 130, - 1094 
 
 V, Whitlock, 2 Bush, 398, 114, 
 
 123, 790 
 Andrcss v. Miller, 15 Pa. St. 
 
 316, 
 
 Andrew, Succession of, 16 La. 
 
 Ann. 197, ... - 
 Andrews, Ex parte, 25 Ch. D. 
 
 505, 
 
 V, Alexander, L. R. 8 Eq. 
 
 569 
 978 
 836 
 
 75 
 
 176, 
 
 — V. Allen, 9 Serg. & R. 
 
 241, - - - 735, 858, 860 
 
 — V. Brown, 21 Ala. 437 (50 
 Am. Dec. 252), - 288, 290, 293, 
 
 294, 719 
 
 — V. Congar (S. C. U. S. 
 1881), 20 Am. Law Reg. (N. 
 S.)328; Law. Coop. Bk. 26, 
 
 p. 90, - - 321, 322, 350, 370 
 
 — V. Ennis, 16 Tex., 45, - 1085 
 
 — V. Garstin, 10 C. B. (N. S.) 
 
 444, 595 
 
 — V. Keith, 34 Ala. 722, - 1105, 
 
 1111 
 
 — V. Mann, 31 Miss. 322, - 551 
 
 — V. Planters' Bank, 7 Sm. 
 
 & Mar. (Miss.) 192 (45 Am. 
 Dec. 300), - - 349, 426, 427 
 — V. Wall, 3 How. 568, - 908 
 
 Angier v. Webster, 14 Allen, 
 211, 
 
 678 
 xxviu 
 
 Anglesea Colliery Co., Re, L. R. 
 
 2 Eq. 371 ; 1 Ch. App. 555, - 813 
 Anonymous, Z, v. X. 2 Kay & 
 
 J. 441, - - - . 581, 991 
 
 , 12 Mod. 446, ... 381 
 
 , 2 Ves. Sr. 629, - 870, 1010 
 
 , 1 Bank. Reg. 187, - - 1131 
 
 , 2 Hayw. (N. Ca.) 99, - 414 
 
 :; , Tayl. (N. Ca.) 113, - - 414 
 
 V. Layfield, Holt, 434, - 384 
 
 V. Layfield, 1 Salk, 292, - 325, 
 
 431, 437 
 An sly n v. Frank, 11 Mo. App. 
 
 598, 1159 
 
 Anthony v. Butler, 13 Pet. 
 
 423, - - - 299, 416, 417 
 
 V. Wheatons, 7 R. I. 490, 323, 
 
 424 
 Apperly v. Page, 1 Phil. 779, - 914 
 Appleby v. Brown, 24 N. Y. 
 
 143, 899 
 
 Appleton V. Smith, 24 Wis. 
 
 331, 33 
 
 Apsey, Ex parte, 3 Bro. C. C. 
 
 2G5, 481 
 
 Arbuckle v. Taylor, 3 Dowl. 
 
 160, .... 466, 467 
 
 Archer v. Walker, 38 Ind. 472, 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. 253, .... 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. Fahnestock, 19 Md. 58, 541, 
 
 548, 551, 560, 585
 
 Arm.] 
 
 TABLE OF CASES. 
 
 [Atw. 
 
 Armstrong v. Hiissey, 12 S. & 
 
 R. 315, COS 
 
 V. Kleinhaus, 82 Ky. 303, 674 
 
 V. Robinson, 5 Gill & J. 
 
 412, 191, 336, 431, 1016, 1018, 1049, 
 
 1072 
 Arnett v. Finney, 41 N. J. Eq. 
 
 147, .... 942, 952 
 Arnold v. Angell, 62 N. Y. 508, 47 
 
 V. Arnold, 90 N. Y. 580, 859, 
 
 930 
 
 V. Brown, 24 Pick. 89 (35 
 
 Am. Dec. 296), 320, 341, 403, 405, 
 411, 583, 584, 587, 589 
 
 V, Camp, 12 Johns. 409, 527 
 
 V. Hamer, 1 Freem. 
 
 (Miss.) Ch. 509, - - 825, 832 
 
 V. Kreutzer, 67 Iowa, 214, 676 
 
 V. Morris, 7 Daly, 498, 403, 406, 
 
 1052 
 
 V. Nichols, 64 N. Y. 117, 504, 
 
 510, 514 
 V. Stevenson, 2 Nev. 234, 299 
 
 V. Wainwright, 6 Minn. 
 
 358, - - 281, 290, 291, 822 
 Arthur v. Weston, 22 Mo. 378, 296 
 Arton V. Booth, 4 Moo. 192, 383, 684 
 Arundell v. Bell, 52 L. J. Ch. 
 
 537; 49 L. T. 345; 31 W. R. 
 
 477, 668 
 
 Asbury v. Flesher, 11 Mo. 610, 446, 
 
 448, 610 
 
 V. Mcintosh, 20 Mo. 278, 734 
 
 Ash V. Guie, 97 Pa, St. 493 (39 
 
 Am. Rep. 818; 10 Am. Law 
 
 Rec. 278; 12 Reporter, 281), 75, 
 
 1066 
 Ashby V. Porter, 26 Gratt. 455, 825, 
 
 828, 841 
 
 V. Shaw, 82 Mo. 76, 29, 37, 62 
 
 Ashhurst v. Mason, L. R. 20 
 
 Eq. 225, - - - 119, 761 
 
 Askew V. Odenheimer, Bald. 
 
 C. C. 380, - - . - 983 
 
 V. Poyas, 2 Desaus. 145, 966 
 
 V. Springer, 111 111. 662, 770, 
 
 775, 779, 945, 949, 976 
 
 Aspinall v. London & N. W. 
 
 R'y Co. 11 Hare, 325, - - 584 
 Aspinwall v. Williams, 1 Oh. 
 
 84, 201 
 
 Astle V. Wright, 23 Beav. 77, 805, 
 
 800, 809 
 Astley V. Weldon, 2 B. & P. 
 
 346, 250 
 
 Atchison Sav. Bank v. Tem- 
 plar, 26 Fed. Rep. 580, - - 1092 
 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, 72, 76, 
 
 81, 87 
 V. Prescott, 10 N. H. 
 
 120, - - - 1103, 1127, 1128 
 
 V. Saxton, 77 N. Y. 195, 561, 
 
 1108 
 
 V. Tredgold, 2 B. & C. 25, 704, 
 
 746 
 Atkinson v. Cash, 79 111. 53, - 938 
 Atlanta v. Dooby, 74 Ga. 702, 725, 
 
 1029 
 Atlantic State Bank v. Savery, 
 
 82 N. Y. 291 (affg. 18 Hun, 
 
 36), - - - 347, 349, 352, 394 
 Attaway v. Third Nat'l Bank, 
 
 15 Mo. App. 577, - - - 127 
 Attorney-General v. Burges, 
 
 Bunb. 223, - - - 468, 471 
 V. Hubbuck, 10 Q. B. D. 
 
 473; 13 id. 275, - - - 297 
 V. State Bank, 1 Dev. & 
 
 Bat. Eq. 545, - - - - 916 
 
 V. Strangforth, Bunb. 97, 468 
 
 V. Weekes, Bunb. 223, - 468 
 
 Attwood V. Rattenbury, 6 J. B. 
 
 Moore, 579, - - - - 1067 
 Atwater v. Fowler, 1 Edw. 
 
 Ch. 417, - - - - 952, 963 
 Atwood V. Impson, 20 N. J. 
 
 Eq. 150, - - - - - 1109 
 V. Lockhart, 4 McLean, 
 
 350, .... 446, 507 
 
 XXIX
 
 Atw.] 
 
 TABLE OF CASES. 
 
 [Bai. 
 
 Atwood V. Maude, L. R. 3 Ch. 
 
 App. 369, - 594, 805, 806, 809 
 
 V. Meredith, 37 Miss. 635, 136, 
 
 1101, 1105, 1113, 115^, 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, 2 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 
 
 (affd. in S. C. 3 DeG. & J. 62C), 216 
 
 661, 668 
 Austin V. Bostwick, 9 Conn. 
 
 496 (25 Am. Dec. 43), - - 701 
 
 V. Cummings, 10 Vt. 26, 641 
 
 V. Holland, 69 N. Y. 571 
 
 (25 Am. Rep. 246), - 614, 616 
 
 ' V. Jackson, 11 Ch. D. 943, 987 
 
 V. Seligmau, 31 Blatchf. 
 
 506 ; 18 Fed. Rep. 519, - - 559 
 
 V. Thompson, 45 N. H. 
 
 113, - - - - - - 64, 75 
 
 V. Vandermark, 4 Hill, 
 
 359, 353 
 
 V. Vaughan, 14 La. Ann. 
 
 43, 849, 850 
 
 V. Walsh, 3 Mass. 401, - 1034 
 
 V. Williams, 3 Oh. 61, 200, 201, 
 
 453, 1153 
 Autenreith v. Hessenbauer, 43 
 
 Cal. 356, .... 754 
 
 Autrey v. Frieze, 59 Ala. 587, 26, 38 
 Aver ill v. Loucks, 6 Barb. 19, 282, 
 
 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 
 
 Aveiy 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 
 
 Azelv. Betz, 3 E. D. Smith, 
 
 188, 374 
 
 B. 
 
 Babb V. Reed, 5 Rawle, 151 
 
 (28 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. 204, 505, 523 
 
 V. Taylor, 84 Ind. 504, - 618 
 
 Bacon v. Cannon, 2 Houst. 47, 70 
 
 V. Hutchings, 5 Bush, 595, 205, 
 
 1167 
 Badeley v. Consolidated Bank, 
 
 34 Ch. D. 536, ... 50 
 Badger v. Daenieke, 56 Wis. 
 
 678, - - 437, 490, 1019 
 
 Baer V. Leppert, 12 Hun, 516, 399 
 Bagaley, The Wm. 5 Wall. 
 
 377, ... 70, 401, 582 
 Bagley v. Smith, 10 N. Y, 489 
 
 (61 Am, Dec. 756; s. C. 19 
 
 How. Pr. 1), - - - 578, 873 
 
 Bagot T, Easton, 9 Ch. D, 1, 
 
 595 
 
 Bagwell v, Bagwell, 72 Ga. 92, 828 
 Bailey v. Bancker, 3 Hill, 188, 883 
 
 V. Clark, 6 Pick. 373, 47, 56, 57, 
 
 333, 565 
 
 XXX
 
 Bai.] 
 
 TABLE OF CASES. 
 
 [Ban. 
 
 Bailey v. Ford. 13 Sim. 495, 593, 977 
 
 V. Kennedy, 2 Del. Cli. 12, 825 
 
 V. Macaulay, 19 L. J. Q. B. 
 
 73, 89 
 
 V. Moore, 25 111. 347. - 904 
 
 V. Starke, 6 Ark. 191, - 874 
 
 Baird's Case, L. R. 5 Ch. App. 
 
 725, - . - 73, 187, 602 
 Baird v, Baird, 1 Dev. & Bat. 
 
 (N. Ca.) Eq. 524, 285, 910, 948, 976 
 
 V. Cochran, 4 S. & R. 397, 347 
 
 V. Planque, 1 F. & F. 344, 91 
 
 Baker's Appeal. 21 Fa. St. 76 551, 
 
 (59 Am. Dec. 752), 551, 556 
 
 Baker v. Casey, 19 Grant's Ch. 
 
 (Up. Can.) 537, - - - 70 
 
 V. Charlton, Feake, 80, 107, 196 
 
 V. Dawbarn, 19 Grant's 
 
 Ch. (Up. Can.) 113, 825, 828, 839, 
 
 845 
 V. Finney, 2 Pears. (Pa.) 
 
 177, 847 
 
 V. Jewell, 6 Mass. 460, - 1024 
 
 V. Mayo, 129 Mass. 517, 785, 788 
 
 V. Nachtrieb, 19 How. 126, 13 
 
 V. Napier, 19 Ga. 520, - 447 
 
 V. Sheehan, 29 Minn. 235, 1131 
 
 V. Stackpoole, 9 Cow. 420 ; 
 
 Lockvv. Rev. Cas. 389 (18 
 
 Am. Dec. 508), - 495, 497, 700 
 
 V. Wimpee, 19 Ga. 87, - 847 
 
 Baldwin v. Bald, 48 N. Y. 673, 629, 
 
 682 
 
 V. Burrows, 47 N. Y. 199, 65, 79 
 
 V. Johnson, 1 N. J. Eq. 
 
 441, - - 295, 301, 680, 689 
 
 V. Leonard, 39 Vt. 260, - 396 
 
 V. Richardson, 33 Tex. 16, 296, 
 
 299, 416, 417 
 
 V. Tynes, 19 Abb. Pr. 33, 339 
 
 Ball V. Britton, 58 Tex. 57, - 873 
 V. Duusterville, 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 F. Ins. Co. 
 
 44 Mich. 137, - - - 655 
 Ballantine v. Frelinghuysen, 
 
 38 N. J. Eq. 266, 282, 598, 601, 603 
 Ballard v. Callison, 4 W. Va. 
 
 326, - 577, 5S5, 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 
 Bankv.Galliott, 1 McMull. 209- 
 
 (36 Am. Dec. 256). - - 631, 694 
 
 V. Gray, 13 Lea (Tenn.), 
 
 459, - - - - 446, 507, 928 
 
 V. Green, 40 Oh. St. 431, 523, 
 
 527, 529, 694, 698 
 V. Hall, 35 Oh. St. 158, 4, 6, 7 
 
 V. Harvey, 12 Mo. App. 
 
 588, 1046 
 
 V. Railroad Co. 11 Wall. 
 
 624, 158, 183, 184, 577, 585, 927, 
 
 930. 931 
 
 V. Sawyer, 38 Oh. St. 339, 184. 
 
 185, 186, 281, 291, 295, 446, 1055 
 
 V. Smith, 26 W. Va. 541, 8, 
 
 563, 910, 1147 
 V. St. Jos. Lead Co. 12 
 
 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, 360, 398, 448. 
 
 613 
 Bank of England, 2 Glyn & J. 
 
 363, 382 
 
 Bank of Kentucky v. Brook- 
 ing, 3 Litt. 41, - - 323, 364 
 
 ZXXl
 
 Ban.] 
 
 TABLE OF CASES. 
 
 [Bar, 
 
 Bank of Louisville v. Hall, 8 
 Bush, 673, - - 291, 297, 298 
 
 Bank of Mobile v. Andrews, 3 
 Sneed(Tenn.), 5J5, - 570,697 
 
 V. Dunn, 67 Ala. S81, - 569 
 
 Bank of JMontreal 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. 371, 373, - - - - 720 
 
 Bank of Port Gibson v. Baugh, 
 9 Sui. & Mar. 290, 689, 693, 727, 
 
 731 
 
 Bank of Rochester v. Bowen, 
 
 7 Wend. 158, - - - 364 
 V. Moiiteath, 1 Den. 403 
 
 (43 Am. Dec. 681), 56, 195, 322, 
 
 441, 443 
 Bank of St. Albans v. Gilli- 
 
 land, 23 Wend. 311 (35 Am. 
 
 Dec. 566), - - - 348, 362 
 Bank of St. Marys v. St. John, 
 
 25 Ala. 566, - - 152, 153, 1023 
 Bank of Scotland v. Christie, 
 
 8 CI. & Fin. 214, - - 653, 656 
 Bank of S. Ca. v. Humphreys, 
 
 1 McCord. L. 888, - 617, 694, 698 
 
 Bank of Tennessee v. Saflfar- 
 rans, 3 Humph. 597 349, 363, 364 
 
 Bank of Toronto v. Nixon, 4 
 Ont. App. 346, - - - 170 
 
 Bank of U. S. v. Broad foot, 4 
 McCord, 30, - - - - 1086 
 
 Bank of Vergennes v. Cam- 
 eron, 7 Barb. 143, - - - 700 
 
 Bank of Wilmington v. Al- 
 mond, 1 Whart. 169, - - 519 
 
 Bankhead v. Alio way, 6 Cold. 
 56, - - - 317, 373, 438, 960 
 
 Banks v. Allen, 26 Ga. 5G8, - 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- 
 sou, 48 Mich. 459, 283, 317, 334, 
 
 429 
 Barber, Ex parte, L. R. 5 Ch. 
 App. 687, - - - 215, 954 
 
 V. Barber, 18 Ves. 2S6, - 943 
 
 V. Barnes, 53 Cal. 650, 584, 589 
 
 V. Cazalis, 30 Cal. 93, - 59 
 
 V. Gillson, 18 Nev. 89, - 534 
 
 V. Hartford B'k, 9 Conn. 
 
 407, - - - 719, 1103, 1104 
 Barclay's Appeal (Pa.), 8 Atl. 
 
 Rep. 169, - - - - 795 
 Barclay v. Lucas, 3 Doug. 331 ; 
 
 1 T. R. 291n, - - - 651 
 
 — r- V. Phelps, 4 Met. 397, - 835 
 Barcroft v. Ha worth, 39 Iowa, 
 
 463, 101, 201, 205, 1151, 1154 
 
 V. Snodgrass, 1 Cold. 430, 338, 
 
 403, 448, 726, 732, 740 
 Bardwell v. Perry, 19 Vt. 293 
 (47 Am. Dec. 687). 824, 836, 828, 
 832, 847, 848, 929 
 Barfield v. Loughborough, L. 
 
 R. 8 Ch. App. 1, - - - 783 
 Barfoot v. Goodall, 3 Camp. 
 
 147, 633 
 
 Barger v. Collins, 7 Har. & J. 
 
 213. 958 
 
 Barhydt v. Perry, 57 Iowa, 416, 569 
 Baring's Case. See Devayues 
 
 V. Noble. 
 Baring v. Crafts, 9 Met. 380, 168, 
 191, 201, 449, 525, 1154 
 
 V. Dix, 1 Cox, 313, - - 593 
 
 V. Lyman, 1 Story, C. C. 
 
 396, - - - 543, 883, 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, Mann, 5 Bush, 673, 315, 323 
 
 V. Parker, 1 T. R. 287, - 51 
 
 XXXll
 
 Bar.] 
 
 TABLE OF CASES. 
 
 [Bat. 
 
 Barker v. Ricliardson, 1 Younge 
 
 &J. 363, .... 383 
 V. Watertown, 137 Mass. 
 
 237, 177 
 
 Barkley v. Tapp, 87 Ind. 25, - 544, 
 
 550, 585 
 Barklie v. Scott, 1 Huds. & 
 
 Br. 83, 54 
 
 Barlow v. Coggan, 1 Wash. 
 
 T'y, 257, .... 750 
 
 V. Reno, 1 Blackf. 253, - 377 
 
 V. Wain Wright, 23 Vt. 88 
 
 (52 Am. Dec. 79), - - 506, 508 
 Barnard, Re, 33 Ch. D. 447, - 453a, 
 
 441 
 
 V. Lapeer, 6 Mich. 274, 331, 428 
 
 Barnes v. Elinbinger, 1 Wis. 
 
 56, 
 
 V. Jones, 91 Ind. 161, 
 
 Barnett v. Smith, 17 Hi. 565. - 
 V. Watson, 1 Wash. (Va.) 
 
 372, 
 
 V. Juday, 38 Ind. 86, 
 
 V. Smith, 17 111. 565, 
 
 1067 
 996 
 650 
 
 1093 
 535 
 650 
 Barney v. Currier, 1 D. Chip. 
 
 315 (6 Am. Dec. 739), - - 392 
 
 V. Earle, 20 Ala. 405, - 1168 
 
 V. Smith, 4 Har. & J, 485 
 
 (7 Am. Dec. 679), 719, 733 
 
 Barns v. Barrow, 61 N. Y. 39, 650, 
 
 1019 
 Barrett, Re, 2 Hughes, 444, 381, 382 
 
 V. I. & St. lI R. R. 9 Mo. 
 
 App. 226, - - - - 67 
 
 V. McKenzie, 24 Minn, 20, 928, 
 
 1103, 1105, 1111 
 
 V. Russell, 45 Vt. 43, 323, 401 
 
 V. Smith, 17 111. 565, - 104 
 
 V. Swann, 17 Me. 180 (22 
 
 Am. Dec. 233), - - 32, 361 
 Barron v. MuUin, 21 Minn. 377, 1008 
 Barrow, Ex parte, 2 Rose, 253, 164, 
 
 167 
 Barry v. Barry, 3 Cranch, C. C. 
 
 120, 985 
 
 V. Briggs, 22 Mich. 201, - 715, 
 
 719, 726, 731, 999 
 
 Barry v. Crowley, 4 Gill, 194, 397 
 V. Fisher, 8 Abb. Pr. (N. 
 
 S.) 369; 39 How. Pr. 521. - 1103 
 
 V. Foyles, 1 Pet. 311, 454, 1068 
 
 V. Nesham, 3 C. B. 641, - 16 
 
 Barstow v. Gray, 3 Me. 409, - 1023 
 Bartlett v. Jones, 2 Strob. L. 
 
 471 (49 Am. Dec. 606), 43, 257, 258, 
 
 260, 1110 
 
 V. Parks, 1 Cush. 83, 931, 932 
 
 V. Waring, 4 Ala. 688, - 531 
 
 Bartley v, Williams, 66 Pa. 
 
 St. 329, 278 
 
 Barton v. Hanson, 2 Taunt. 
 
 49, 257, 446 
 
 Bascom v. Young, 7 Mo. 1, 348, 370 
 Basdell v. Souther, 6 Gray, 149, 216 
 Bass, Ex parte, 36 L. J. Bkcy. 
 
 39, - 844 
 
 Bass V. Emery, 74 Me. 338, - 734 
 
 V. Estill, 50 Miss. 300, - 848 
 
 V. Taylor, 34 Miss. 343, 680, 933 
 
 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 
 Batchelor v. Whitaker, 88 N. 
 
 Ca. 350, 305 
 
 Bate, Ex parte, 3 Deac. 358, - 843 
 V. McDowell, 17 Jones & 
 
 Sp. 106, .... 510. 518 
 Bates V. Halliday, 3 Ind. 159, - 1080 
 Bateson v. Gosling, L. R. 4 C. 
 
 P. 9, 386 
 
 Battaille v. Battaille, 6 La. 
 
 Ann. 682, - - - - 873 
 Battle V. Street (Tenn.), 3 S. 
 
 W. Rep. 384, - - - 317 
 Battley v. Lewis, 1 M. & G. 
 
 155, 221 
 
 Batty V. Adams County, 16 
 
 Neb. 44, - - - - 296, 299 
 V. McCundie, 3 C. & P. 203, 459 
 
 XXXUl
 
 Bat.] 
 
 TABLE OF CASES. 
 
 [Bec. 
 
 Batzer v. Batzer, 28 N. J. Eq. 
 
 13G, 181 
 
 Bauerman, Ex parte, 3 Dea. 476, 834 
 Baugher v. Duphorn, 9 Gill, 
 
 314, 390 
 
 Baum V. Fryrear, 85 Mo. 151, 510, 
 
 516, 519 
 Bawden v. Howell, 3 Man. & 
 
 G. G38, 1017 
 
 Baxter, Re, 18 Bankr. Reg. 62, 841 
 V. Bell, 19 Hun, 367 (re- 
 versed in 86 N. Y. 195), - 420 
 
 V. Bell, 86 N. Y. 195, 420, 524, 
 
 848 
 V. Buchanan, 3 Brewst. 
 
 (Pa.) 435, .... 1002 
 V. Clark, 4 Ired. (N. Ca.) 
 
 L. 127, .... 323, 445 
 V. Connoly, 1 Jac. & 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. Schofield, 1 M. & S. 
 
 338, 238 
 
 Bays V. Conner, 105 Ind. 415, 329, 
 343, 371, 532, 534 
 Beacannon v. Liebe, 11 Oregon, 
 
 443 (19 Reporter, 183), - 900, 904 
 Beach v. Hay ward, 10 Oh. 
 
 455, . 154, 715. 722, 723, 1083 
 V. Hotchkiss, 2 Conn. 425 ; 
 
 id. 697, .... 849,860 
 
 V. State Bank, 2 Ind. 488, 349, 
 
 352, 1441 
 
 V. Ollendorf, 1 Hilt. 41, - 415 
 
 Beacham v. Eckford, 2 Sandf. 
 
 Ch. 116, - . 215. 786, 787, 788 
 Beal V. Snedicor, 8 Porter 
 
 (Ala.), 5-33, - - - 1091, 1092 
 Beale v. Caddick, 2 H. & N. 
 
 328, . - . 881, 498, 499 
 
 V. Mouls, 10 Q. B. 976, 508, 51 1 
 
 Beall V. Lowndes, 4 S. Ca. 258, 107, 
 
 108 
 
 Beall V. Poole, 27 Md. 645, 85, 507, 
 510, 511, 517, 1147 
 Beals V. Sheldon, 4 Up. Can. Q. 
 
 B. (old ser.) L;02, - - - 347 
 Beam v. Baruum, 21 Conn. 200, 885, 
 
 386, 887 
 
 V. Macomber, 38 Mich. 127, 304 
 
 Beaman v. Whitney, 20 Me. 
 
 413, 76, 296 
 
 Bean v. Gregg, 7 Colorado, 493, 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, 772 
 
 Beaumont v. Boulther, 5 Ves. 
 
 485; 7 id. 599, - - .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. 230, 912 
 
 V. Martin, 2 McMuU. (S. 
 
 Ca.)260, ... - 883 
 Becker v. Boon, 61 N. Y. 317, 336 
 Becket v. Sterrett, 4 Blackf. 
 
 499, 277 
 
 Beckford v. Hill, 124 Mass. 
 
 588, ... - 5':5, 1150 
 
 Beckham v. Drake, 9 M. & W. 
 
 79, 334, 1023 
 
 V. Peay, 1 Bailey, 121, - 701 
 
 V. Peay, 2 Bailey, L. 133, 383, 
 
 1079 
 Beckley v. Munson, 22 Conn. 
 
 299, . . i - . 629 
 Beckwith v. Manton, 12 R. L 
 
 442, .... 542, 1014 
 
 V. Talbot, 95 U. S. 289; 
 
 s. c. 2 Colo. 639, - - 45, 62 
 
 XXXIV
 
 Bed.] 
 
 TABLE OF CASES. 
 
 [Ben. 
 
 Bedford v. Brutton, 1 Bing. 
 
 N. C. 399, - - - - 878 
 V. Deakia, 2 B. & Aid. 
 
 210; 2 Stark. 178, - - 528, 533 
 Beebe v. Rogers, 3 G. Greene 
 
 (Iowa), 319, - ... 440 
 Beecher v. Busl), 45 Mich. 188 
 
 (40 Am. Rep. 4Go), 17, 23, 30, 45, 
 
 59, 61 
 
 V. Stevens, 43 Conn. 587, 184, 
 
 185, 557 
 Beesley v. Lawrence, 11 Paige, 
 
 581, 842 
 
 Beevan v. Lewis, 1 Sm. 376, - 1109 
 Beitman v. McKenzie, 11 Ohio 
 
 Weekly Law Bulletin, 272, - 560 
 Belcher v. Conner, 1 S. Ca. 88, 2, 
 
 127 
 
 V. Vundusen, 37 111. 281, - 278 
 
 V. Whittemore, 134 Mass. 
 
 330, - - . . 2G6, 300 
 Belknap v. Cram, 11 Oh. 411, 543, 
 
 560 
 V. Wendell, 1 Foster (21 
 
 N. H.), 175, .... 27 
 Bellv. Barker, 16 Gray, 62, - 5l9 
 
 V. Ellis, 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, - 7o3 
 
 V. Newman, 5 Serg. & R. 
 
 78, 827, 828 
 
 V. Norwood, 7 La. 95, - 655 
 
 V. Thompson, 34 111. 529, 1165 
 
 Bellairs v. Ebsworth, 3 Camp. 
 
 53, 655 
 
 Bellerville Sav. Bk. v. Wins- 
 low, 30 Fed. Rep. 488, - - 456 
 Belote V. Wayne, 7 Yerg. 
 
 (Tenn.)534, - - - - 703 
 Belton V. Fisher, 44 111. 32, 722, 724 
 Bemis v. Boston, 14 Allen, 
 
 366, 177 
 
 V. Hoseley, 16 Gray, 63, 
 
 Benchley v. Chapin, 10 Cash. 
 
 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, 009, 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. 
 
 222 (modifies s. c. 53 Barb, 
 
 578; 5 Abb. Pr, N, S, 412); 
 
 S, C, 76 N. Y. 386, - 686, 687 
 
 V. Cad well, 70 Pa. St. 253, 420, 
 
 537, 640 
 
 V. Dean, 35 Mich, 306, - 1138 
 
 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. 531, 1088 
 
 V. W^in field, 4 Heisk, 
 
 (Tenn.) 440, .... 141 
 
 V, Woolfolk, 15 Ga, 213, - 115, 
 
 121, 9(J7, 939 
 Benninger v. Gall, 1 C. S. C. 
 
 R. 331, 1028 
 
 V. Hess, 41 Oh. St. 64, - 322, 
 
 328, 341, 342, 370, 448, 450, 451 
 Benson v. Ela, 35 N. H. 402, - 558, 
 
 719, 824, 828 
 - — V. Hadfield, 4 Hare, 
 
 32, 523 
 
 V, Ketcham, 14 Md, 331, 43 
 
 V. Morgan, 50 Mich. 78, - 141 
 
 V. Tilton, 54 N. H, 174, - 875 
 
 XXXV
 
 Ben.] 
 
 TABLE OF CASES. 
 
 [Bm. 
 
 Bentley v. Bates, 4 Younge & 
 
 C. Ex. 182, 163, 184, 186, 586, 927 
 
 V. Craven, 18 Beav. 75, - 303 
 
 V. Harris, 10 R. I. 434 (14 
 
 Am. Rep. 095), - - 43, 922 
 V. White, 3 B. Mon. 263 
 
 (38 Am. Dec. 18oj, 329, 374, 700 
 Benton v. Chamberlain, 23 Vt. 
 
 711, - - - 152, 608, 609 
 - — V. Roberts, 4 La. Aijn. 
 
 216, .... 301, 343 
 Bentzen v. Zierlein, 4 Mo. 417, 416, 
 
 421 
 Beresford v. Browning, L. R. 
 
 20 Eq. 564 (affd. 1 Ch. D. 30), 239, 
 
 454 
 
 V. Browning, 1 Ch. D. 30, 455, 
 
 642 
 Bergeron v. Richardott, 55 
 
 Wis. 129, 281, 284, 288, 291, 295, 
 
 545, 790 
 Berkey v. Judd, 22 Minn. 287, 933, 
 
 961 
 Berks v. French, 21 Kan. 238, 611 
 Berkshire Woolen Co. v. Jiiil- 
 
 lard, 75 N. Y. 535 (31 Am. 
 
 Rep. 488; aff. 13 Hun, 506), - 452, 
 
 453 
 
 V. Juillard, 13 Hun, 506, - 841 
 
 Bernard v. Torrance, 5 Gill & 
 
 J. (Md.) 383, - 153, 156, 529, 607, 
 
 608, 609, 1157 
 ■ V. Wilcox, 2 Johns. Cas, 
 
 874, .... 719, 723 
 Bernie v. Vandever, 16 Ark. 
 
 616, - - - 794, 801, 968 
 
 Berolzheiraer v. Strauss, 51 N. 
 
 Y. Superior Ct. 96, 716, 724, 735 
 Berrian, Re, 6 Ben. 297 (aflfg. 
 
 44 How. Pr. 216), - - 825, 835 
 Berry v. Folkes, 60 Miss. 576, 51, 
 
 298, 320, 571, 573, 577, 597, 599, 603, 
 767, 770, 774, 785, 801 
 V. Gillis, 17 N. H. 9 (43 
 
 Am. Dec. 584), - - - 385 
 -^v. Harris, 22 Md. 30, 719, 723, 
 
 723, 1104 
 
 Berry v. Jones, 11 Heisk. 206, 770, 
 
 771, 772, 1003 
 V. Kelly, 4 Robt. (N. Y.) 
 
 106, 1108 
 
 V. McLean, 11 Md. 92, 532, 636 
 
 V. Masters, 18 111. 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 
 
 89f 
 Betts V. June, 51 N. Y. 274, - 304 
 
 305, 719, 72'r 
 Beudel v. Hettrick, 45 How. 
 
 Pr. 198 ; 3 Jones & Sp. 405, 43, 56- 
 
 383, 102" 
 Beulali Park Estate, Re, L. R. 
 
 15 Eq. 43, - - - - 78"^ 
 Bevan v. Lewis, 1 Sim. 376, - 439 
 Bevans v, Sullivan, 4 Gill 
 
 (Md.), 383, 770, 909, 983, 1151, 1159 
 Beveridge v. Hewitt, 8 111. 
 
 App. 467, .... 1151 
 Biddlecombe v. Bond, 4 Ad. 
 
 & E. 332, - - - - 238 
 Biddulph, Ex parte, 8 DeG. & 
 
 Sm. 587, - - - 474, 842 
 
 Bidwell V. Madison, 10 Minn. 
 
 18, 88 
 
 Biernan v. Braches, 14 Mo. 
 
 24, 864, 868 
 
 Bigelow, In re, 1 Bankr. Reg. 
 
 667, 457 
 
 , In re, 2 Bankr. Reg. [121] 
 
 371; 3 Ben. 146, - - - 841 
 
 V. Eliot, 1 Cliff. 28, 35, 445, G08 
 
 V. Gregory, 73 111. 197, - 5 
 
 V. Lehr, 4 Watts, 378, - 538 
 
 V. Henuiger, 33 Kan. 362, 3'.;0 
 
 Biggs V. Hubert, 14 S. Ca. 620, 426 
 Bignold, Ex parte, 2 Mont. & 
 
 A. 633, 383 
 
 xxxvi
 
 Bio.] 
 
 TABLE OF CASES. 
 
 [Bla. 
 
 Bignold V. Waterhouse, 1 M. 
 
 & S. 255, .... 895 
 Bill V. Barker. 16 Gray, 63, - 653 
 
 V. Porter, 9 Conn. 23, 434, 1151, 
 
 11.54, 1162, 1168 
 Billings V. Meigs, 53 Barb. 272, 1038. 
 
 1047 
 Billingsley v. Dawson, 27 
 
 Iowa, 210, - - - 193, 576 
 Bilton V. Blakely, 6 Grant's 
 
 Cb, (Up. Can.) 575, 685, 6S9. 715. 
 
 731, 997 
 Binpham v. Shaw, 16 Grant's 
 
 Ch. 373, .... 987 
 
 Bininger v. Clark, 60 Barb. 
 
 113; 10 Abb. Pr. (N. S.) 264, 660, 
 
 669 
 Biuuey v. Le Gals, 19 Barb. 
 
 592; 1 Abb. Pr. 283, - - 880 
 Binns v. Waddill, 32 Gratt. 
 
 588, .... 1038, 1046 
 Birchett v. Boiling, 5 Munf. 
 
 (Va.)442, .... 1014 
 Bird V. Austin, 8 Jones & Sp. 
 
 109, 709 
 
 V. Bird, 77 Me. 499; 1 Atl. 
 
 Rep. 455, .... 736 
 
 V. Caritat, 3 Johns. 342, - 1026 
 
 V. Fake, I Pin. (Wis.) 290, 435, 
 
 544, 1022 
 
 V. Lake, 1 H. & N. 338, - 677 
 
 V. Lanius, 7 Ind. 615, - 446 
 
 V. Morrison, 12 Wis. 158 
 
 [138], .... 281, 801 
 
 V. Plerpoint, 1 Johns. 118, 1026 
 
 Birdsall v. Bemiss, 2 La. Ann. 
 
 449, 455 
 
 V. Colie, 10 N. J. Eq. 63, 995 
 
 Birdsoug v. McLaren, 8 Ga. 
 
 521, 1121 
 
 Birkett v. Hird, 55 Wis. 650, - 902 
 V. McGuire, 31 Up. Can. 
 
 Com. PI. 430, - - - 497, 534 
 Bnks V. French, 21 Kan. 238, 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 
 
 Bischoff V. Blease, 20 S. Ca. 
 4ii0, 1067 
 
 B.schoiTsheim v. Baltzer, 20 
 
 Fed. Rep. 890, - - - 722 
 
 Bisel V. Hobbs, 6 Blackf. 479, 156, 
 
 199, 445, 1143 
 
 Bishop V. Brecles, Hoflfu). (N. 
 Y.) Cli. 534, - - - 517, 594 
 
 V. Countess of Jersey, 3 
 
 Drew. 143, - - - - 475 
 
 V. Georgeson, 60 111. 484, 95, 
 
 1151 
 
 V. Hall, 9 Gray, 430, - - 1023 
 
 V. Hubbard, 23 Cal. 514, 560, 
 
 566, 1131, 1133 
 
 Bispham v. Patterson, 2 Mc- 
 Lean, 87, - - - - 700 
 
 V. Price, 15 How. 162, - 960 
 
 Bissell V. Adams, 35 Conn. 
 
 299, .... 703, 705 
 
 V. Araes, 17 Conn. 121, - 933 
 
 V. Foss, 114 U. S. 253 
 
 (afFg. s. c. as First Nat'l B'k 
 
 V. Foss, 4 Fed. Rep. 694, and 
 
 2 McCrary, 73), - 
 V. Harrington, 18 Hun, 
 
 81, 
 
 V. M. S. & N. I. R. R. Cos. 
 
 310 
 
 303 
 133 
 
 23 N. Y. 258, 
 Bitter v. Rath man, 61 N. Y. 
 
 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. 
 
 383, .... 560, 1131 
 
 Black's Appeal, 89 Pa. St. 201, 289 
 
 , 44 Pa. St. 503, 825, 827 
 
 Black V. Bird, 1 Hayw. (N. 
 
 Ca.) 273, .... 281, 381 
 V. Bush, 7 B. Mon. 210, 717 
 
 XXXVll
 
 Bla.] 
 
 TABLE OF CASES. 
 
 [Blo. 
 
 Black V. Campbell, 6 W. Va. 
 
 51, 41G, 1165 
 
 V. Merrill, 65 Cal. 90, - 964 
 
 V. Struchers, 11 Iowa, 459, 737, 
 
 746 
 Blackett v. Weir, 5 B. & C. 385, 1169 
 Blackiston's Appeal, 813^ Pa. 
 
 St. 389, 268 
 
 Black well v. Clay well, 75 N. 
 
 Ca. 213, - - - - 583, 943 
 
 V. Rankin, 7 N. J. Eq. 152, 566, 
 
 567, llO'J 
 
 V. Reid, 41 Miss. 102, 
 
 Blain, Ex parte, 12 Ch. D. 522, 
 Blair v, Bromley, 2 Ph. 354; 
 
 5 Hare, 542, - - - - 
 
 — V. Johnston, 1 Head, 13, - 
 
 T. Snover, 10 N. J. L. 153, 
 
 V. Wood, 108 Pa. St. 278, 
 
 Blaisdell v. Pray, 68 Me. 269, 
 
 1049 
 1059 
 
 474 
 
 763 
 
 1024 
 
 749 
 
 900, 
 
 902 
 
 Blake v. Buchanan, 22 Vt. 548, 1166 
 
 V. Dorgan, 1 G. Greene 
 
 (Iowa), 537, - - 577, 578, 594 
 
 V. Langdon, 19 Vt. 4S5 (47 
 
 Am. Dec. 701), - - - 1082 
 
 V. Nutter, 19 Me, 16, 186, 291 
 
 V. Smiley, 84 Ind, 212, - 825 
 
 V. Ward, 137 Mass. 94, - 90S 
 
 V. Wheaton, 2 Hay w. (N. 
 
 Ca.) 109;TayI. 70, - - 882,884 
 Blakeley v. Le Due, 22 Minn. 
 
 476, 268 
 
 Biakely v. Bennecke, 59 Mo. 
 
 193, 75 
 
 Blakeney v. Dufaur, 15 Beav. 
 
 40, 996 
 
 Blaker v. Sands, 29 Kan. 551, 276, 
 
 404, 585, 587, 733 
 
 Blakly v. Graham, 111 Mass. 8, 861 
 
 Blanchard v. Coolidge, 23 
 
 Pick. 151, 43. 257, 260, 1107, 1110 
 
 V. Kaull, 44 Cal. 440, - 4, 7 
 
 V. Paschal, 08 Ga. 32 (45 
 
 Am. Rep. 474), - - - 1131 
 
 V. Pasteur, 2 Hayw. 393, 420, 
 
 422 
 
 BlasdeU v. Souther, 6 Gray, 
 
 149, 
 
 Blatcliley v^ Coles, 6 Colorado, 
 
 349, 
 
 Blaylock's Appeal, 73 Pa. St. 
 
 146, .... 310, 311 
 Blew V. Wyatt, 5 C. & P. 897, 
 Bliffinsv. Wilson, 113 Mass. 248, 
 Blight V. Ewing, 1 Pittsb. 275, 
 V. Tobin, 7 Monroe, 612 
 
 (18 Am. Dec. 219), 
 Blin V. Pierce, 20 Vt. 25, 
 Blinu V. Evans, 24 111. 317, - 
 Biiss V. Swartz, 7 Lans. 187; 
 
 64 Barb. 215, 
 Blisset V. Daniel, 10 Hare, 493; 
 
 1 Eq. 484, 241, 242, 432. 433, 913 
 Block V. Fitchburg R, R, 139 
 
 Mass. 308, - - 
 Blodget V. Conkliu, 9 How. 
 
 Pr. 442, , - - . . 
 V. Muskegon (Mich. 1886), 
 
 217 
 
 305 
 
 521 
 
 967 
 
 43 
 
 480 
 
 1052 
 
 447 
 
 101 
 
 66 
 
 380 
 
 176 
 
 1131 
 
 27 N. W. Rep. 686, 
 Blodgett, Re, 10 Bankr. Reg. 
 
 145, 
 
 V. Amer. Nat'l Bk. 49 
 
 Conn. 9, - - - 598, 602 
 
 V. Jackson, 40 N. H. 21, - 191 
 
 V. Sleeper, 67 Me. 499, - 1037 
 
 V. Weed, 119 Mass. 215, 215, 
 
 352, 356 
 Bloodgood V. Bruen, 8 N. Y. 
 
 362 ... 703, 706, 750 
 Bloom V. Helm, 53 Miss. 21, - 322, 
 342, 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. 
 
 &G. 11, 
 
 Blount V. Williams, 28 Ark. 
 
 374, 
 
 Bloxham v. Pell, cited in 2 
 
 W. Bl. 999, - - - 16, 47, 55 
 
 860 
 869 
 
 XXXVUl
 
 Blu.J 
 
 TABLE OF CASES. 
 
 [Boo. 
 
 Bluck V. Capstick, 12 Ch. D. 
 
 863, .... 805, 806 
 
 Blue V. Leathers, 15 111. 31, - 59, 61 
 Blum V. Thomas. 60 Tex. 153 
 
 (10 Reporter, 732), - - 1058 
 
 Blumenthal, Re, 18 Bankr. 
 
 Reg. 555. - . - - 43 
 
 Blumer, Re, 13 Fed. Rep. 489, 825, 
 
 833, 833 
 
 , In re, 13 Fed. Rep. 633, 453a, 
 
 841 
 Blunt V. Williams, 28 Ark. 374. 874 
 Blythe, Ex parte, 16 Ch. D. 
 
 630, 836 
 
 Boardman, Ex parte, 1 Cox, 
 
 275, 835 
 
 V. Adams. 5 Iowa, 234, 317, 319 
 
 V. Close, 44 Iowa, 438, - 316, 
 
 217, 770, 775 
 
 V. Gore, 15 Mass. 331, 333, 353 
 
 V. Keeler, 3 Vt. 65, 43, 1033. 
 
 1053 
 Boast V. Firth, L. R. 4 C. P. 1, 334, 
 
 770, 780 
 Boatmen's Sav. Inst. v. Mead, 
 
 53 Mo. 543, - - - 528, 529 
 Boddam v. Ryley, 1 Bro. C. C. 
 
 239 ; 2 id. 2 ; 4 Bro. P. C. 561, 788 
 Bodenham v. Purchas, 2 B. & 
 
 Aid. 39, 499 
 
 Bodwell V. Eastman, 106 Mass. 
 
 525, - - - - 72, 73, 74 
 Bofenschen, Succession of, 29 
 
 La. Ann. 711, - - - 198 
 Bogerau v. Gueriuger, 14 La. 
 
 Ann. 478, .... 690 
 Bogart V. Brown, 5 Pick. 18, 334. 
 
 1145 
 Boggess V. Lilly, 18 Tex. 200, 113. 
 
 137 
 Boggs V. Johnson, 26 W. Va. 
 
 821, ... - 949, 950 
 Bogue's Appeal, 83 Pa. St. 101, 1114 
 Bohler v. Tappan, 1 Fed. Rep. 
 
 469; 1 McCrary, 134, 715, 719, 731 
 Bohm V. Dunphy, 1 Montana, 
 
 333, 722 
 
 Bohrer v. Drake, S3 Minn. 408, 26, 
 
 590, 761 
 Boire v, McGinn, £ Oregon, 
 
 466, - - - 978, 979, 935 
 Boisgerard v. Wall, 1 Sm. & 
 
 Mar. Ch. 404, - 72, 211, 914 
 
 Bolckow V. Foster, 24 Grant's 
 
 Ch. (Up. Can.) 333; affd. 25 
 
 id. 476, overruling 9 id. 9, - 191, 
 
 723, 724 
 V. Foster, 25 Gj-ant's Ch. 
 
 (Up. Can.) 470, - - - 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. Dec. 550). 416, 430 
 
 V. Bemis, 55 Mo. 534, - 853 
 
 V. Gibson, 1 Camp. 185, - 348, 
 
 373 
 
 V. Hays, 18 Mass. 34, 864,888 
 
 V. Milbourn, 30 W. R. 197, 664, 
 
 804 
 
 V. Nave, 63 Ind. 505, - 835, 
 
 1138, 1151 
 
 V. Pittard, 3 M. & W. 357, 55, 56 
 
 Bonfield v. Smith, 13 M. & W. 
 
 405, 106 
 
 Bonis V. Louvrier, 8 La. Ann. 
 
 4, 761, 780 
 
 Bonnaffe v. Fenner, 6 Sm. & 
 
 Mar. 212 (45 Am. Dec. 278), 880, 
 
 1136 
 Bonney v. Stoughton, 18 III. 
 
 App. 563, - - - - 942 
 Bonsall v. Conily, 44 Pa. St. 
 
 413, 1131 
 
 Booe v. Caldwell. 13 Ind. 13, 94, 437 
 Booker v. Kirkpatrick, 26 
 
 Gratt. 145, - - - - 582 
 xxxix
 
 Boo.] 
 
 TABLE OF CASES. 
 
 [Bow. 
 
 Boor V. Lowrey, 103 Ind. 4G8, 331, 
 
 333 
 Boorum v. Ray, 73 Ind. 151, - 454, 
 
 1049, 1117, 1119 
 Booth V. Briscoe, 2 Q. B. D. 496, 1033 
 
 V. Clark, 17 How. 333, - 1005 
 
 V. Curtis, 17 W. R. 393; 
 
 30 L. T. N. S. 153, - - 659 
 V. Farmers' & Mech. B'k, 
 
 74. N. Y. 228 (aflF. 11 Hun, 
 
 258), - 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, ... 155, nil, 1112 
 
 Bosanquet v. Wray, 6 Taunt. 
 
 597, - - - 900, 902, 905 
 Bostick V. Brittaiii, 25 Ark. 
 
 483, 278 
 
 Bostwick V. Isbell, 41 Conn. 
 
 305, 1004 
 
 Boston & Albany R. R. v. 
 
 Pearson, 128 Mass. 445, 73, 73, 74 
 Boston, etc. Smelting Co. v. 
 
 Smith, 13 R. I. 27 (43 Am. 
 
 Rep. 3), - - - 23, 47, 1135 
 
 Boswell V. Dunning, 5 Har. 
 
 (Del.) 231, .... 1067 
 
 V. Green, 25 N. J. L. 390, 406 
 
 Bosworth V. West, 68 Ga. 825, 1095 
 Bothara v. Keefer, 2 Out. App. 
 
 595, 32 
 
 Botifeur v. Wyman, 1 McCord, 
 
 Ch. IGl, .... 964 
 
 Botsford V. Kleinhaus, 29 
 
 Mich. 333, - 501, 510, 518, 519 
 
 Bottomley v. Nuttall, 5 C. B. 
 
 (N. S.) 123, .... 439 
 Boughner v. Black, 83 Ky. 531, 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. 
 
 632, 79, 99 
 
 V. Woold ridge, 10 B. Mon. 
 
 492, .... 1079, 1083 
 
 Boutelle v. Smith, 116 Mass. 
 
 Ill, *.-.-- 677 
 Bouton V. Bouton, 43 How. 
 
 Pr. 11, - - - - 971, 973 
 Bovill V. Hammond, 6 B. & C. 
 
 149, ... - 856, 865 
 V. Wood, 2 M. & S. 25, - 746 
 
 Bowas V. Pioneer Tow Liue, 3 
 Sawy. 31, - - - 67, 463 
 
 Bowden, Ex parte, 1 Deac. & 
 Ch. 135, - ... 843 
 
 ■ V. Schatzell, Bail. (S. Ca.) 
 
 Eq. 360 (33 Am. Dec. 170), - 1114 
 Bowen v. Billings, 13 Neb. 
 
 439, 1103 
 
 V. Clark, 1 Biss. 138, 325, 338, 
 
 403 
 
 y. Crow, 16 Neb. 556, - 454 
 
 V. Richardson, 133 Mass. 
 
 293, - - - - 111, 120 
 V. Rutherford, 60 111. 41 
 
 (14 Am. Rep. 25), - - 94, 1155 
 V. Troy Portable Mill Co. 
 
 31 Iowa, 460, - - - 1055 
 
 Bower v. Douglass, 25 Ga. 714, 694, 
 
 698 
 Bowers v. Whittle, 63 N. H. 
 
 147 (56 Am. Rep. 499), - - 677 
 Bowie V. Maddox, 29 Ga. 
 
 285, 91,97 
 
 Bovvin V. Sutherlin, 44 Ala. 
 
 278, 1083 
 
 Bowker v. Bradford, 140 Mass. 
 
 531, 139 
 
 V. Gleason (N. J.), 7 Atl. 
 
 Rep. 885, - - - 257, 259 
 
 xl
 
 Bow.] 
 
 TABLE OF CASES. 
 
 [Bra. 
 
 Bowkerv. Smith, 48 N. H. Ill 
 
 (3 Am. Rep. 189), - - - 847 
 Bowler v. Huston, 30 Gratt. 
 
 2G6 (33 Am. Rep. 673), 1089, 1093 
 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, 2 Met. 308, - 693 
 
 V. Cecil Bank, 3 Grant's 
 
 Cas. (Pa.) 33, - 349, 353, 362 
 
 V. O'Reilly, 31 Miss. 261, 180 
 
 V. Spalding, 2 S. W. Rep. 
 
 (Ky.)911, .... 553 
 Bowne v. Thompson, 1 N. J. L. 
 
 2, - - - - 448, 451, 1081 
 Bowsher v. Watkins, 1 Russ. & 
 
 M. 277, 926 
 
 Bowyer v. Anderson, 2 Leigh 
 
 (Va.), 550, - - - - 45, 46 
 
 V. Kuapp, 15 W. Va. 277, 537 
 
 Boyce v. Coster, 4 Strob. (S. 
 
 Ca.) Eq. 25, - - - 184, 295 
 V. Watson, 3 J. J. Mar. 
 
 498, 331 
 
 Boyd V. Brown, 2 La. Ann. 
 
 218, 868 
 
 V. Foot, 5 Bosw. 110, 765, 766, 
 
 938, 980 
 
 V. McCann, 10 Md. 118, - 100, 
 
 353, 353, 575, 637 
 
 V. Myuatt, 4 Ala. 79, 86, 213, 
 
 780, 876 
 
 V. Plumb, 7 Wend. 309, - 349, 
 
 363 
 
 V. Ricketts, 60 Miss. 63, - 150, 
 
 608, 1147, 1151, 1157 
 .Boyer v. Knapp, 15 W. Va. 
 
 277, .'---- 523 
 Boyers v. Elliott, 7 Humph. 
 
 204, - - - 290, 291, 822 
 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, .... 237, 739 
 
 V. Page, 13 Wend. 425, - 277, 
 
 547 
 Bozon V. Farlow, 1 Mei\ 
 
 459, 008 
 
 Bracken v. Ellsworth, 64 Ga. 
 
 243, - - 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. 
 
 214, .... 1079, 1080 
 Bradbury, Ex parte, 4 Deac. 
 
 203, 503 
 
 Bradbury v. Barnes, 19 Cal. 
 
 120, .... 308, 311 
 
 V. Dickens, 37 Beav. 53, - 660, 
 
 664, 990 
 
 V. Smith, 21 Me. 117, 256, 258, 
 
 1105 
 Bradford v. Johnson, 44 Tex. 
 
 381, 138 
 
 V. Kimberly, 3 Johns. Ch. 
 
 431, .... 770. 777 
 
 V. Peckhara, 9 R. I. 250, - 677 
 
 V. Spyker, 32 Ala. 134, - 943 
 
 V. Taylor, 61 Tex. 508, - 1074 
 
 Bradley, Re, 2 Biss. 515, - 453a, 841 
 V. Brigham, 137 Mass. 
 
 545, - - - 782, 783, 788 
 V. Camp, 1 Kirby (Conn. ), 
 
 77 (1 Am. Dec. 13), 323, 618, 681, 
 
 693 
 
 V. Chamberlin, 16 Vt. 613, 216, 
 
 771 
 
 V. Harkness, 26 Cal. 69, - 59 
 
 V. Linn, 19 111. App. 323, 329, 
 
 343 
 
 V. Richardson, 23 Vt. 720, 499 
 
 V. White, 10 Met. 303 (43 
 
 Am. Dec. 435), ... 43 
 
 Bradner v. Strang, 89 N. Y. 
 299 (affd. in S. v. B. 114 U. S. 
 
 555), 472 
 
 xli
 
 Bra.] 
 
 TABLE OF CASES. 
 
 [Bel 
 
 Bradshavv v. Appersou, 3G Tex. 
 
 133, .... 43, 150 
 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. 103, - - - - 1028 
 Braitbwaite v. Skotield, 9 B. & 
 
 C. 401, 75 
 
 Braley v. Goddard, 49 Me. 115, 37 
 Brampton v. Beddoes, 13 C. B. 
 
 N. S. 538, ... - 677 
 Branch v. Adam, 51 Ga. 113, 1103, 
 
 1113 
 
 V. V/iseman, 51 Ind. 1, 1101, 
 
 1105 
 Brand v. Buulcott, 2 B. & P. 
 
 2-.i5, 1021 
 
 Brande v. Bond, 63 Wis. 140, 1106 
 Brandon v. Nesbitt, 6 T. R. 23, 110 
 Brannon v, Hursell, 112 Mass. 
 
 63, 1153 
 
 Brasfield v. French, 59 Miss. 
 
 632, - - 52, 136, 600, 601, G03 
 Brasier v. Hudson, 9 Sim. 1, 381, 
 
 681, 726 
 Brassfipld v. Brown, 4 Rich. 
 
 (S. Ca.) ^. 293, - - - 873 
 Braun's Appeal, 105 Pa. St. 
 
 414, 229 
 
 Braxton v. State, 25 Ind. 82, 749 
 Bray v. Grain, 59 Tex. 649, - 489 
 
 V. Froraont, 6 Madd. 5, 158, 164, 
 
 167 
 
 V. Morse, 41 Wis. 343, - 384 
 
 V. Seligman, 75 Mo. 31, - 1130 
 
 Brayley v. Goff, 40 Iowa, 76, 383 
 
 V. Hedges, 52 Iowa, 623, 344, 
 
 3G8 
 Brazee v. Woods, 35 Tex. 302, 634, 
 
 640, 647 
 Bread v. Lynn, 126 Mass. 367, 268 
 
 Brealsford v. Meade, 1 Yeates, 
 
 483, 1125 
 
 Brecher v. Fox, 1 Fed. Rep. 
 
 273, 566 
 
 Breckinridge v. Shrleve, 4 
 
 Dana (Ky.), 375, - 329. 334, 371 
 Bredow v. Mut. Sav. Inst. 28 
 
 Mo. 181, - 690, 718, 731, 733 
 Breed v. Judd, 1 Gray, 455, - 144 
 Breen v. Richardson, 6 Colo- 
 rado, 60.~, . . - 300, 731 
 Breuchley, Ex parte, 2 GI. & 
 
 J. 127, 906 
 
 Brent v. Davis, 9 Md. 217, 322, 323 
 Breslin v. Brown, 24 Oh. St. 
 
 565, 2, 112 
 
 Bret V. Beckwith, 3 Jur. N. S. 
 
 31, 27 
 
 Brettel v. Williams, 4 Exch. 
 
 623, 321, 349 
 
 Brewer v. Browne, 68 Ala. 210, 181, 
 285, 295, 297, 942, 948, 949 
 V. Norcross, 17 N. J. Eq. 
 
 219, 934 
 
 V. Worthington, 10 Allen, 
 
 329, 636 
 
 V. Yorke, 46 L. T. N. S. 
 
 289, .... 805, S09 
 Brewing v. Berryman, 15 New 
 
 Brunswick, 515, - 462, 468, 471 
 Brewster v. Hammet, 4 Conn. 
 
 540, .... 1109, 1110 
 
 V. Hardeman, Dudley 
 
 (Ga.), 138, - - - 700, 705 
 
 V. Mott, 5 111. 378, 427, 629, 632 
 
 1037, 1038, 1044, 1046 
 
 V. Sterrett, 32 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. 35S). - - - 701 
 
 V. McCuUough, 27 Ala, 
 
 661, .... 825, 828 
 
 xlii
 
 Bui.] 
 
 TABLE OF CASES. 
 
 [Bro. 
 
 Bridge v. Swain, 3 Redf. (N. 
 
 Y.)4S7, ... - 714, 7;-)0 
 Bridges v. Sprague, 57 Me. 543, 45, 59 
 Brien v. Harriman, 1 Tenn. 
 
 Ch. 407, 593 
 
 Brierlv 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 
 
 (aff. s. c. 20 Barb. 477), - 707 
 
 V, Daugherty, 48 lud. 247, 849 
 
 V. Hubert, 14 S. Ca. 620, 817, 
 
 373, 429, 430 
 V. Leitelt, 41 Mich. 79, - 179 
 
 V. Vauderbilt, 19 Barb. 
 
 222, . - - . 66, 134 
 Brigliam v. Clark, 100 Mass. 
 
 430, .... 33, 1144 
 
 V. Dana, 29 Vt. 1, - 49, 309, 
 
 766, 792 
 V. Smith, 3 E. & A. (Up. 
 
 Can.) 46, .... 122 
 Bright V. Sampson, 20 Tex. 21, 1090 
 Brinegarv. Griffin, 2 La. Ann. 
 
 154, 894 
 
 Brink v. New Amsterdam F, 
 
 Ins. Co. 5 Robt. (N. Y.) 104, 78, 
 
 336, 382, 409 
 Brinkerhoff v. Marvin, 5 Johns. 
 
 Ch. 320, ... - 189 
 
 Brinkley v. Harkins, 48 Tex. 
 
 225, - - - - 32, 35, 815 
 
 Brinley v. Kupfer, 6 Pick. 179, 864 
 Brisban v. Boyd, 4 Paige, 17, 84, 
 
 607, 700 
 Bristol V. Sprague, 8 Wend. 
 
 423, 611 
 
 Bristow V. Taylor, 2 Stark. 50, 681, 
 
 684 
 Broaddus v. Evans, 63 N. Ca. 
 
 633, - - - 383, 411, 510 
 Brock V. Bateman, 25 Oli, St. 
 
 609 (15 Am. Law Reg. N. S. 
 
 216), - - - 827, 832, 833 
 Brockman v. Aulger, 12 111. 
 
 277, .... 968, 978 
 
 Brockway v. Burnap, 16 Bnrb. 
 
 309 (12 Barb. 347), - 16, 43 
 
 Broda v. Greenwald, 63 Ala. 
 
 53S, 849 
 
 Bromley v. Elliot, 38 N. H. 
 
 287, - 23, 30, 33, 150, 322, 323, 324 
 Brook V, Enderby, 2 Brod. & 
 
 B. 70, 497 
 
 Brooke v.Evans, 5 Watts, 193, 80. 
 
 446, 507, 508 
 V. Garrod. 2 DeG. & J. 62 ; 
 
 3 K. & J. 608, - - - 249 
 V. Washington, 8 Gratt. 
 
 248 (56 Am. Dec. 142), 150, 281, 
 
 301, 344, 374, 422 
 
 Brooks V. Brooks, 12 Heisk. 12, 714, 
 
 738, 828 
 
 V. McKinney, 5 111. 309, 1169 
 
 V. Martin, 2 Wall. 70, 125, 309 
 
 V. Sullivan, 32 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, - - - 1024 
 Broughton v. Brougliton, 44 L. 
 
 J. Ch. 526 ; 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. 225, .... 440 
 V. Agnew, 6 W. & S. 
 
 238, .... 583,866 
 
 V. Allen, 35 Iowa, 306, 722, 
 
 724, 1170 
 
 V. Atkinson, 91 N. Ca. 389, 1153 
 
 V. Belches, 1 Wash. (Va.) 
 
 9, - - ... 1093 
 
 V. Birdsall, 29 Barb. 549, 151, 
 
 1052 
 xiiii
 
 Bro.] 
 
 TABLE OF CASES. 
 
 [Bry. 
 
 Brown v. Black, 96 Pa. St. 483, 
 V. Bostian, 6 Jones (N. 
 
 531, 
 
 532 
 
 378 
 
 695 
 
 1155 
 
 181 
 
 Ca.), L. 1, - - - - 1016 
 
 V. Brabham, 3 Oh. 275, - 491 
 
 V. Broach, 52 Miss. 536, 349, 
 
 694, 695 
 
 V. Brown, 4 Taunt. 752, 1167 
 
 V. Byers, 16 M. & W. 252, 329 
 
 V. Chancellor, 61 Tex. 437, 136, 
 
 139, 588, 695 
 V. Cinqmars, 2 Up. Can. 
 
 Prac. Rep. 205. - 
 
 V. Clark, 14 Pa. St. 469, - 
 
 V. Crandall, 11 Conn. 92, 
 
 V. Dale, 9 Ch. D. 78, 
 
 V. De Tastet, Jacob, 284 ; 
 
 4 Russ. 126, 164, 167, 773, 794 
 
 V. Fitch, 33 N. J. L. 418, 346 
 
 V. Gellatly, 31 Beav. 243, 743 
 
 V. Gordon, 16 Beav. 302, - 706 
 
 V. Hartford F. Ins. Co. 
 
 117 Mass. 479, - 143, 382, 409 
 
 V. Haynes, 6 Jones, Eq. 
 
 (N. Ca.) 49, 237, 544, 917, 918, 983 
 
 V. Hicks, 8 Fed. Rep. 155, 593 
 
 V. Hicks, 24 Fed. Rep. 811, 43 
 
 V. Higginbothara, 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. 230, - 136, 
 
 195 
 
 V. Jones, 18 N. H. 230, - 135 
 
 V. Kidger, 3 H. «& N. 853, 329, 
 
 341, 370 
 
 V. Lawrence, 5 Conn. 397, 199, 
 
 381, 382, 4.39 
 
 V. Leonard, 3 Chit. 120, 324, 325 
 
 V. O'Brien, 4 Neb. 195, - 1149 
 
 V. Overstreet, 4 McCord, 
 
 79, 1086 
 
 V. Pickard (Utah), 9 Pac. 
 
 Rep. 573, - - 101, 201, 1094 
 V. Rains, 53 Iowa, 81, 1151, 1155 
 
 Brown v. Robbins. 3 N. H. 64, 63 
 
 V. Shackelford, 53 Mo. 
 
 122, .... 790, 791 
 
 V. Tapscott, 6 M. «fe W. 
 
 119, ... 56, 852," 876 
 
 V. Torver, Minor (Ala.), 
 
 370, 884 
 
 V. Turner. 15 Ala. 832. 397. 697 
 
 V. Vidler, cited in 2 Russ. 
 
 325, 341, .... 796 
 
 V. Wooton, Cro. Jac. 73, - 535 
 
 Brownell v. Brownell, 2 Bro. 
 
 C. C. 61 ; 1 Mac. & G. 94, 958, 964 
 Browning v. Browning, 31 
 
 Beav. 316, .... 245 
 
 V. Grady, 10 Ala. 999, - 386 
 
 V. Marvin, 22 Hun, 547, 753 
 
 Brownlee v. Allen, 21 Mo. 123, 88 
 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, 42 Mo. 276, - 734 
 Brugman v. McGuire, 32 Ark. 
 
 733, - - 101, 1C9, 5U, 1094 
 Bnimskill v. James, 11 N. Y. 
 
 294, 1094 
 
 Brundred v. Muzzy, 25 N. J. L. 
 
 268, • .... 23 
 
 Brunson v. Morgan, 76 Ala. 
 
 593, 296 
 
 Brutton v. Burton, 1 Chit. 707, 378 
 Bry v. Cook, 15 La. Ann. 493, 963 
 Bryan v. Tooke, 60 Ga. 437, . 347, 
 362, 507, 509, 1171 
 Bryant v. Clifford, 27 Vt. 664, 411, 
 
 1083 
 
 V. Hawkins, 47 Mo. 410, 537, 
 
 709 
 
 V. Hunter, 6 Bush, 75, . 281, 
 
 290, 291, 822. 1111, 1163 
 V. Lord, 19 Minn. 396, 690, 694 
 
 xliv
 
 Brt.] 
 
 TABLE OF CASES. 
 
 [Bum. 
 
 Bryant v. Proctor, 14 B. Mon. 
 
 saa, 589 
 
 Bryden v. Taylor, 2 Har. & J. 
 
 396, .... 1150, 1155 
 Brydolf v. Wolf, 82 Iowa, 
 
 509, 1087 
 
 Bryer v. Weston, 16 Me. 261, - 1145, 
 
 1154 
 Bryson v. Whitehead, 1 Sim. 
 
 & Stu. 74, - - - - 657 
 Buchan v. Sumner, 2 Barb. 
 
 Ch. 165, 281, 283, 293, 294, 297, 
 
 820, 976, 1111 
 Buchanan v. Comstock, 57 
 
 Barb. 568, .... 977 
 V. Curry, 19 Johns. 137 (10 
 
 Am. Dec. 200), - - 336, 582 
 
 V. Meisser, 105 111. 638, - 882 
 
 Buchoz V. Grandjean, 1 Mich. 
 
 367, 336 
 
 Buck V. Dowley, 16 Gray, 555, 43, 47 
 
 V. Mosley, 24 Miss. 170, 1038, 1046 
 
 V. Smith, 2 Colorado, 500, 1159 
 
 V. Smith, 29 Mich. 166 (18 
 
 Am. Rep. 84), - - 1011, 1012 
 - — V. Winn, 11 B. Mon. 320, 281, 
 285, 291, 295, 297 
 Buck Stove Co. v. Johnson, 7 
 
 L^a (Tenn.), 282, - - - 554 
 Bai khause. Re, 3 Lowell, 331 ; 
 
 10 Baukr. Reg. 206, 837, 905, 906 
 Buckingham v. Hanna, 20 Ind. 
 
 110, .... 161, 429 
 V. Ludlum, 29 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. 562; S. C. as ' 
 Ex parte Clarke, DeGex, 153 
 (reverses s. C. as Ex parte 
 Christie, 3 M. D. D. 736), 200, 346 
 
 V. Barber, 6 Exch. 164, - 718 
 
 V. Buckley, 11 Barb. 43, 297 
 
 V. Carlisle, 2 Cal. 420, - 274 
 
 V. Garrett, 47 Pa. St. 204, 273 
 
 Bucklin v. Bucklin, 97 Mass. 
 
 250, 
 
 Buckmaster v. Gowen, 81 111. 
 
 153, 
 
 Bucknam v. Barnum, 15 Conn. 
 
 67, 
 
 Buckner v. Calcote, 28 Miss. 
 
 432, .... 195, 837 
 
 v. Lee, 8 Ga. 285, 45, 443, 445 
 
 V. Ries, 34 Mo. 357, - - 865 
 
 619 
 
 877 
 
 35 
 
 Bucyrus Machine Co., Re, 5 
 
 Baukr. Reg. 303, - - - 453a 
 Buell V. Cole, 54 Barb. 353, 849, 881 
 Buffalo City Bank v. Howard, 
 
 35 N. Y. 500, - - - 013, 649 
 Buffum v. Buffum, 49 Me. 108, 281, 
 
 293, 297 
 
 V. Seaver, 16 N. H. 160, - 180, 
 
 452, 829 
 Bufkin V. Boyce, 104 Ind, 53, 995 
 Buford V. Neely, 2 Dev. (N.Ca.) 
 
 Eq. 481, 544, 577, 585, 770, 773, 
 
 796, 927,931 
 Bulfinch V. Winchenbach, 3 
 
 Allen, 161, - - - 27, 1103 
 Bulkley v. Dayton, 14 Johns. 
 
 387, 383 
 
 Bull V. Harris, 18 B. Mon. 195, 325, 
 
 338, 403 
 
 V. Lambson, 5 S. Ca. 288, 1093, 
 
 1094 
 V. O'Sullivan, L. R. 6 Q. B. 
 
 209, .... 343, 376 
 
 V. Schuberth, 2 Md. 38, 36, 43 
 
 Bullard v. Kinney, 10 Cal. 60, 853 
 BuUen v. Sharp, L. R. 1 C. P. 
 
 86, - - - 18, 21, 29, 47 
 Bulliter v. Young, 6 El. & B. 40, 563 
 BuUoc V. Pailhos, 20 Mart. 172, 43 
 Bullock V. Ashley, 90 III. 102, 183 
 V. Chapman, 2 DeG. & Sm. 
 
 211, 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. 34), - 875 
 
 V
 
 Bun.] 
 
 TABLE OF CASES. 
 
 [Bur. 
 
 Bun V. Morris, 1 Caines, 54, 435, 544 
 Bundy v, Youmans, 44 Mich. 
 
 3TG, - - 455, 739. 785, 973 
 
 Bunn V. Morris, 3 Caii\es, 54, 1024 
 Bunnel v. Taintor. 4 Conn. 568, 303 
 Bunton 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. 261 ; 43 id. 474, - 663 
 
 Burckle v. Eckart, 1 Den. 337 
 
 (aff'd, 3 Den. 279 ; 3 N. Y. 132), 43 
 Burden v. Burden, 1 Ves. & B. 
 
 172, - - 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 Giflf. 413 
 
 (affd. in 4 DeG. F. & J. 42), 
 
 263. 
 768 
 
 V. Barkus, 4 DeG. F. & J. 
 
 43 (affg. 4 Giff. 413), 209, 363, 286, 
 
 330, 573, 766, 768, 769, 803, 974 
 
 Burfield v. Rouch, 31 Beav. 241, 661 
 
 Burgan v. Cahoon, 1 I'enny- 
 
 packer (Pa.), 330, - - - 101 
 
 V. Lyell, 3 Mich. 103 (55 
 
 Am. Dec. 53), 72, 330, 331, 334, 
 
 613 
 Burgen v. Dwinal, 11 Ark. 314, 456, 
 
 1051, 1068 
 Burge.ss v. Atkins, 5 Blackf. 
 
 337, 
 
 V. Merrill, 4 Taunt. 468, - 
 
 V. Northern B'k of Ky. 
 
 4 Bush, 600, - . - - 
 Burgwyn v. Hostler, Tayl. (N. 
 
 Ca.) 134; 1 Am. Dec. 583, - 
 Burk V. Morrison, 8 B. Mon. 
 
 131, 
 
 Burke v. Maxwell, 81 Pa. St. 
 
 139, .... 
 
 1105 
 148 
 
 343 
 
 750 
 
 1072 
 
 Burke v. Roper, 79 Ala. 138, 75 
 
 Burland v. Nas.h, 2 F. & F. 6S7, 498 
 Burleigh v. Parton, 21 Tex. 
 
 585, 365 
 
 V. Whito, 70 Me. 130, 237, 290, 
 
 766. 823, 939 
 Burley v. Harris, 8 N. H. 233 
 
 (39 Am. Dec. 650), - - 883 
 
 Burlington & Mo. Riv. R. R. 
 
 V. Dick, 7 Neb. 243, - 1059, 1005 
 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, 
 
 3S9, .... 
 Burnell v. Hunt, 5 Jur. 650, 
 
 V. Mi not, 4 Moore. 340 
 
 V. Weld, 59 Me. 423,, 
 
 281 
 1106 
 
 000 
 1103 
 
 880 
 
 Burnes v. Scott, 117 U. S. 583, 
 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. 344 
 
 (atfd. 11 J. & Sp. 238); S. C. 
 
 81 N. Y. 550 (37 Am. Rep. 
 
 537); 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), 23, 
 164, 16G, 168, 586 
 
 V. Sullivan, 58 Tex. 535, 
 
 Burnett Line of Steamers v. 
 
 Blackman, 53 Ga. 98. - 
 Burney v. Boone, 33 Ala. 486, 
 
 Burnham v. Hopkinson, 17 N. 
 
 H. 259, 
 
 V. Whittier, 5 N. H. 334, 
 
 1086, 
 1093 
 
 1147 
 
 850, 
 
 856 
 
 1113 
 1017 
 26, 
 
 - 1080 
 
 Burnley v. Rice, 18 Tex. 481, 
 
 439, 439 
 Burns v. Harris, 67 N. Ca. 140, 1131 
 V. McKenzie, 23 Cal. 101, 700 
 
 xivi
 
 Bur.] 
 
 TABLE OF CASES. 
 
 [Box. 
 
 Burns v. Mason, 11 Mo. 469, 446, 453a 
 
 V. Nottingham, 60 111. 531, 849. 
 
 858, 859, 81>1 
 
 V. Parish, 3 B. Men. 8, 440, 451 
 
 V. Pillsbury, 17 N. H. 66, 501 
 
 Burnside v. Fetzner, 63 Mo. 
 
 107, 533 
 
 V. Merrick, 4 Met. 537, 281, 
 
 - 290, 294, 732 
 
 V. Savier, 6 Oregon, 154, 734 
 
 Burpee v. Buun, 22 Cal. 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 
 Burria v. Whitner, 3 S. Ca. 
 
 510, 526 
 
 Burritt v. Dickson, 8 Cal. 113, 56, 
 
 390, 510, 511 
 Burroughs' Appeal, 26 Pa. St. 
 
 264, 443 
 
 Burrows v. Foster, cited in 
 Clark V. Leach, 32 Beav. 14, 
 
 18, 663 
 
 Burson v. Kincaid, 1 Pa. (Pen. 
 
 &W.), 57, - - - - 385 
 Burt V. Lathrop, 53 Mich. 106, 75 
 
 V. Wilson, 28 Cal. 632, - 868 
 
 Burton v. Baum, 32 Kan. 641, 5C0, 
 
 1133 
 
 V. Goodspeed, 69 111. 237, 43 
 
 V. Rutherford, 49 Mo. 255, 733 
 
 V. Wigley, 1 Bing. N. C. 
 
 665, 234 
 
 V. Wookey, 6 Madd. 867, 303 
 
 Burtus V. Tisdall, 4 Barb. 571, 561, 
 
 562, 566 
 Burwell v. Cawood. See Bur- 
 well V. Mandeville. 
 
 V. Mandeville, 2 How, 560, 580, 
 
 598, 600, 601, 610, 750, 1038 
 
 Burwell v. Springfield, 15 Ala. 
 
 273, 1038 
 
 Bury V. Allen, 1 Coll. 589, 591, 594, 
 595, 7t0, 805, 8U6, 809 
 
 V. Bedford, 4 De G. J. & 
 
 Sm. 353, ... - 675 
 
 V. Harris, 22 Md. 30, - 719 
 
 Busby V. Chenault, 13 B. Mon. 
 
 554, 845 
 
 Busfield v. Wheeler, 14 Allen, 
 
 139, 347 
 
 Bush V. Bush, 33 Kan. 556, - 484 
 
 V. Clark, 127 Mass. Ill, - 718, 
 
 825, 828 
 
 V. Crawford, 7 Bankr. 
 
 Reg.L299, - - - - 352 
 
 V. Guion, 6 La. Ann. 797, 764, 
 
 765 
 
 v. Linthicum, 59 Md. 344, 143, 
 
 144, 147 
 Butchart v. Dresser, 4 De G. 
 M. & G. 542; 10 Hare, 463, 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, 323, 333, 580 
 
 V. Burleson, 16 Vt. 176, - 676, 
 
 678 
 
 V. Finck, 21 Hun, 210, 43, 1135 
 
 V. Henry, 43 Ark. 551, - 507, 
 
 1159 
 
 V. Kirby, 53 Wis. 188, - 746 
 
 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. 
 
 412, - - - - 72, 74, 931 
 
 V. Hemsley, 13 Gray, 226, 205, 
 
 349, 438 
 
 V. Lathrop, 71 Pa. St. 225, 68 
 
 Button V. Hampson, Wright 
 
 (O.), 93, .... 419 
 
 xlyii
 
 But.] 
 
 TABLE OF CASES. 
 
 [Cam. 
 
 Butts V. Genung, 5 Paige, 254, 749, 
 
 750 
 
 V. Tiffany, 21 Pick. 95, - 1146 
 
 Buxton V. Edwards, 134 Mass. 
 
 587, - - 519, 529, 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. Bickford, 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, 503, - - - 1061 
 V. Woodward, 9 Iowa, 
 
 360, 1159 
 
 Byrd v. Charles, 3 S. Ca. 352, 1081 
 
 V. Fox, 8 Mo. 574, - 865, 870 
 
 Byrne, Re, Bankr. Reg. 464, - 832 
 
 546 
 
 c. 
 
 Cabaniss v. Clark, 31 Miss. 
 
 423, 
 
 Cabell V. Vaughan, 1 Saund. 
 
 291, 1016 
 
 Cadwallader v. Blair, 18 Iowa, 
 
 420, 507 
 
 V. Kroesen, 22 Md. 200, 411, 
 
 1044 
 Cady V. Kyle, 47 Mo. 346, 330, 331 
 V. Shepherd, 11 Pick. 400 
 
 (22 Am. Dec. 379), - 416, 701, 707 
 
 V. Smith, 12 Neb. 628, - 1065 
 
 Cahoon v. Hobart, 38 Vt. 244, 621, 
 
 • 707 
 Calder v. Rutherford, 8 Brod. 
 
 & Bing. 802; 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, 563, 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, - 562, 
 
 1045, 1146 
 
 V. Sithens, 5 Blackf. 99, - 197 
 
 V. Stileman, 1 Rawle, 212, 610, 
 
 708, 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. 
 
 152, 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, 728, 
 
 731, 773 
 Calvit V. Markham, 3 How. 
 
 (Miss.) 343, - - - 900,905 
 Cambefort v. Chapman, 19 Q. 
 
 B. D. 229, - - - - 535 
 Camblat v. Tupery, 2 La. 
 
 Ann. 10, - - - - 853 
 Cambridge Water Wks. v. 
 
 Somerville Dyeing, etc. Co. 
 
 14 Gray, 193, - - - - 5 
 Cameron v. Bickford, 11 Ont. 
 
 App. 52, - 110, 117, 120, 800 
 V. Canieo, 9 Bankr. Reg. 
 
 527, 173 
 
 V. Francisco, 26 Oh. St. 
 
 190, - - - 770, 773, 774 
 V. Stevenson, 12 Up. Can. 
 
 C. P. 389, - - - 338,583 
 V. Watson, 10 Rich. Eq. 
 
 64, - - - 761, 762, 816, 980 
 
 zlviii
 
 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.), 212, - - - - 715 
 V. Grant, 21 Conn. 41 (54 
 
 Am. Dec. 321), - 749, 826, 828 
 
 V. Mayer, 47 Ga. 414, - 555 
 
 V. Montgomery, 74 Ga. 
 
 (1886), 56 
 
 V. Page, 42 Vt. 739, 
 
 565 
 
 Campbell v. Blanke, 13 Kan. 
 
 62, 1067 
 
 V. Bowen, 49 Ga. 417, 325, 1094 
 
 y. 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. 325, 23, 45, 
 
 1149, 1152, 1153 
 V. Genet, 2 Hilt. 290, - 1079 
 
 V. Hastings, 29 Ark. 512, 95, 
 
 159, 1146, 1147, 1151, 1155 
 
 Hood, 6 Mo. 211, - 109, 1023, 
 
 1139, 1145 
 
 V. Lacock, 40 Pa. St. 448, 503 
 
 V. Mathews, 6 Wend. 551, 412 
 
 V. Moore, 3 Wis. 767, - 1136 
 
 V. MuUett, 2 Swanst. 551, 70, 
 
 269, 544 
 V. Pedan, 3 Up. Can. L. J. 
 
 68, 1113 
 
 V. Stewart, 34 111. 151, 543, 763 
 
 V. Whitley, 39 Ala. 172, - 86 
 
 Canada v. Barksdale, 76 Va. 
 
 899, .... 32, 974 
 Canada Lead Mine Co. v. 
 
 Walker, 11 Lower Canada, 
 
 433, .... 377, 380 
 Canal Co. v. Gordon, 6 Wall. 
 
 561, .... 276, 383 
 Candler v. Candler, Jac. 225; 
 
 6Madd. 141, .... 110 
 
 V. Stange, 53 Mich. 479, 970 
 
 Canfield v. Hard, 6 Conn. 180, 111, 
 
 716 
 Cannon v. Copeland, 43 Ala. 
 
 201, .... 735, 736 
 
 V. Dunlap, 64 Ga. 680, - 456, 
 
 1119 
 
 V. Wildman, 28 Conn. 472, 325, 
 
 326, 384, 680, 683 
 Cannopv. 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. Hall, 12 Bankr. Reg. 
 
 1, 348 
 
 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, 1053 
 V. Burruss, 20 W. Va. 571 
 
 (43 Am. Rep. 790), - 136, 137 
 
 Carfraev.Vanbuskirk,l Grant's 
 
 Ch. (Up. Can.) 539, - 1151 
 
 Cargill V. Corby, 15 Mo. 425, 322, 
 
 323, 348 
 Carillon v. Thomas, 6 Mo. App. 
 
 573, 1105 
 
 Carl V. Knott, 16 Iowa, 379, 629 
 
 Carleton v. Jenness, 43 Mich. 
 
 110, _ 727 
 
 Carlew v. Drury, 1 Ves. & B. 
 
 157, 73 
 
 Carley v. Jenkins, 46 Vt. 731, 834 
 Carlin v. Donegan, 15 Kan, 
 
 495, - - 761, 780, 937, 969 
 Carlisle v. Mulhern, 19 Mo. 
 
 56, 281 
 
 V. Niagara Dock Co. 5 
 
 Up. Can. Q. B. (Old Ser.) 660, 326, 
 
 381 
 
 V. Tenbrook, 57 Ind. 529, 231, 
 
 815 
 Carlon v. Ruffner, 13 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 
 Carries v. White, 15 Gray, 378, 834, 
 
 372, 406 
 Carney v. Hotchkiss, 48 Mich. 
 
 276, - . - - 199, 441 
 
 Carpenter, Ex parte, 1 Mont. 
 
 & Mac. 1, - - - 560, 846 
 
 V. Wells, 65 III. 451, - 869 
 
 Carper v. Hawkins, 8 W. Va. 
 
 291, 972 
 
 Carr v. Catlin, 13 Kan. 393, 733, 734 
 
 V. Leavitt,-54 Mich. 540, - 301 
 
 V. Roberts, 5 B. & Ad. 78, 638, 
 
 640 
 
 V. Smith, 5 Q. B. 128, - 861 
 
 V. Wilkins, 44 Tex. 424, - 1025 
 
 Carrere v. Spofford, 46 How. 
 
 Pr. 294, - - 714, 715, 746 
 
 Carrier v. Cameron, 31 Mich. 
 
 3T3 (18 Am. Rep. 192), 341, 361, 
 
 1069 
 Carrillon v. Thomas, 6 Mo. 
 
 App. 574, - - - - 1101 
 Carrington v. Cantillon, Bunb. 
 
 107, 1085 
 
 Carrithers v. Jarrel, 20 Ga. 842, 228, 
 
 431 
 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, - 1002 
 
 Carruthers v. Ardagh, 20 
 
 Grant's Cb. (Up. Can.) 579, 538 
 Carson v. Byers, 67 Iowa, 606, 453 
 Carter, Ex parte, 2 Gl. & J. 
 
 233, 843 
 
 V. Adamson, 21 Ark. 287, 636, 
 
 639 
 V. Bailey, 64 Me. 458, - 69 
 
 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, 5G6 
 
 V. Lipsey, 70 Ga. 417, - 486 
 
 V. Pomeroy, 80 Ind. 438, 698 
 
 V. Roland, 53 Tex. 540, - 584, 
 
 801, 1111, 1113 
 
 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. 125 (99 U. S. 119), 486, 560, 
 
 824 
 
 V. Beauregard, 99 U. S. 
 
 119 (1 Woods, C. C. 125), 560, 824 
 
 V. Cushman, 3 Watts & S. 
 
 544 (39 Am. Dec. 47), 632, 644, 961 
 
 V. Fish, 58 Wis. 56, 105-7, 114 
 
 V. Maxey, 6 Cal. 276, - 850 
 
 Casebolt v. Ackermau, 46 N. J. 
 
 L. 169, 705 
 
 Casey v. Brush, 2 Caines, 293, 849 
 
 v. Carver, 42 111. 225, 383, 428, 
 
 1037 
 Cash v. Earushaw, 66 111. 403, 591, 
 
 592 
 
 V. Tozer, 1 Watts & S. 519, 377, 
 
 878 
 Cassels v. Stewart, L. R. 6 App. 
 
 Cas. 64, 308 
 
 Cassidy v. Hall, 97 N. Y. 159, 23, 
 36, 47, 91, 95, 101 
 
 1
 
 CAS.J 
 
 TABLE OF CASES. 
 
 [Cha. 
 
 Castle V. Bullard, 23 How. 172, 474, 
 
 480, 1094 
 
 V. Reynolds, 10 Watts, 51, 380, 
 
 727 
 Castly V. Towles, 46 Ala, 600, 923 
 Caswell V. Cooper, 18 111. 
 
 532, - . - - - 892 
 
 V. Howard, 16 Pick. 562, 549 
 
 Catlin V. Gilders, 3 Ala. 536, 2, 319, 
 
 698 
 Caton, In re, 24 Up. Can. C. 
 
 P. 308, 562 
 
 Catron v. Shepherd, 8 Neb. 
 
 308, .... 311, 790 
 Catskill Bank v. Gray, 14 Barb. 
 
 471 (s. c. at a later stage, 5 
 
 Gray, 574), - - - 133, 134 
 
 133, 
 825 
 
 385 
 
 V. Hooper, 5 Gray, 574, - 
 
 V. Messinger, 9 Cow. 37, 
 
 V. Stall, 15 Wend. 364 
 
 (affd. in Stall v. Catskill 
 
 Bank, 18 id. 466), - - - 352 
 Caulfleld v. Sanders, 17 Cal. 
 
 569, 401 
 
 Causten v. Burke, 2 Har. & G. 
 
 295 (18 Am. Dec. 297), - - 854 
 Causler v. Wharton, 62 Ala. 
 
 358, .... 301, 1171 
 Caussey v. Baily, 57 Tex. 665, 1121 
 Cavander v. Bulteel, L. R. 9 
 
 Ch. App. 79, - 185, 186, 291, 295 
 Cavitt V, James, 39 Tex. 189, 731 
 Cay ton v. Hardy, 27 Mo. 536, 401, 
 
 403, 404 
 Cayuga Bank v. Hunt, 2 Hill, 
 
 635, 397 
 
 Central City Sav. Bank v. 
 
 Walker, 66 N. Y. 424 (aff. 5 
 
 Hun, 34), - - - - 4. 23 
 Central Sav. Bank v. Mead, 
 
 52 Mo. 546, - - 694, 696, 727 
 Central R. R. & Banking Co. 
 
 V. Smith, 76 Ala. 572, 1147, 1151, 
 
 1155, 1157, 1158, 1160 
 
 Chace v. Hinman, 8 Wend. 452, 638, 
 
 639, 640 
 
 Chadsey v. Harrison, 11 111. 
 
 151, - . - 434, 849, 881 
 Chaffe V. Ludeling, 27 La. 
 
 Ann. 607, .... 5 
 
 Chaffee v. Jones, 19 Pick. 260, 173 
 
 V. Rentf roe, 32 Ga. 477, - 1147, 
 
 1154 
 Chaffin V. Chaffin, 2 Dev. & 
 
 Bat. Eq. 255, - 361, 630, 934 
 
 ChafiFraix v. Lafitte, 30 La. 
 
 Ann. Pt. I, 631, - - 23, 29, 43 
 
 V. Price, 29 La. Ann, 176, 43 
 
 Chaffy, In re, 30 Up. Can. Q. 
 
 B. 64, - - - 841, 882, 884 
 Chalfant v. Grant, 3 Lea 
 
 (Tenn.), 118, - - 560, 1131, 1133 
 Chalk V. Bank, 87 N. Ca. 200, 933 
 Chamberlain v. Dow, 10 Mich. 
 
 319, 609 
 
 V. Hite, 5 Watts, 373, - 1019 
 
 V. Jackson, 44 Mich. 320, 1135 
 
 V. Madden, 7 Rich, (S. Ca,) 
 
 L. 395, - - - 420, 438, 525 
 
 V. Walker, 10 Allen, 429, 868, 
 
 878 
 Chamberlin v. Chamberlin, 12 
 
 Jones & Sp. (N. Y.) 116, 282, 286 
 V. Madden, 7 Rich. (S. Ca,) 
 
 L. 20, 1163 
 
 V. Prior, 2 Keyes, 539; 1 
 
 Abb. App. Dec. 338, • 473a, 897 
 Chambers v, Clearwater, 1 
 
 Keyes, 310; 1 Abb, App. 
 
 Dec. 341 (affg. 41 Barb. 
 
 200), .... 
 
 V. Crook, 42 Ala. 171, 
 
 V. Howell, 11 Beav. 6, 
 
 465 
 810 
 743 
 
 Chambovet v. Cagney, 35 N. 
 
 Y. Superior Ct. 474. - - 139 
 Cliampion v. Bostwick, 18 
 
 Wend. 175 (31 Am. Dec. 
 
 376), - - 67, 257, 462, 463 
 V. Mumford, Kirby 
 
 (Conn,), 170, - - - 341, 1068 
 Charaplin v. Tilley, 3 Day, 
 
 303, - . . 1094,1143, 1154 
 Chandler, Ex parte, 9 Ves. 35, 825
 
 Cha.J 
 
 TABLE OF CASES. 
 
 [Chb. 
 
 Chandler v. Brainard, 14 Pick. 
 
 285, 79 
 
 V. Chandler, 4 Pick. 78, 1G7, 
 
 945, 948 
 
 V. Drew, 6 N. H. 469, - 1083 
 
 V. Herrick, 19 Johns. 129, 386 
 
 V. Higgius, 109 111. 602, - 532 
 
 V. Lincoln, 52 111. 74, 1105, 1111 
 
 V. Parkes, 8 Esp. 76, - 148 
 
 V. Sherman, 16 Fla. 99, 813,372, 
 
 761, 982, 986 
 
 V. Wilson, 52 111. 74, - 1112 
 
 Channel v. Fassitt, 16 Oh. 166, 164, 
 
 166 
 Channon v. Stewart, 103 111. 
 
 541, 922 
 
 Chapin v. Clemitson, 1 Barb. 
 
 311, . - - . 265, 382 
 
 V. Coleman, 11 Pick. 331, 331 
 
 Chapline v. Couant, 8 W. Va. 
 
 507, - - - - 23, 29, 45 
 Chapman v. Beckinton, 3 Q. 
 
 B. 703, - - - 580, 649, 651 
 
 V. Chapman, 13 R. L 680, 736 
 
 V. Devereux, 32 Vt. 616 (9 
 
 Am. Law Reg. (O. S.) 419), 72, 323 
 
 324, 446 
 
 V. Eames, 67 Me. 452, - 31, 62 
 
 V. Koops, 3 B. & P. 289, 928 
 
 V. Lipscomb, 18 S. Ca. 222, 61 
 
 V. Wilson, 1 Rob. (Va.) 
 
 267, .... 26, 1147 
 Chappell V. Allen, 38 Mo. 213, 531, 
 
 690, C91 
 
 V. Cox, 18 Md. 513, - 259, 1110 
 
 Chardon v. Olipbant, 3 Brev. 
 
 183 (6 Am. Dec. 572), - - 701 
 Charles v. Eshelmau, 5 Col- 
 orado, 107, - 329, 334, 825, 828 
 Charleston Fruit Co. v. Bond, 
 
 26 Fed. Rep. 18, - - - 250 
 Charlesworth v. Jennings, 34 
 
 Beav. 96, - - - - 595 
 Charllon v. Poulter, cited in 
 
 note to 19 Ves. 148, - 314, 990 
 Charman v. Henshaw, 15 Gray, 
 
 293, 191 
 
 Charman v. McLane, 1 Oregon, 
 
 339, 350 
 
 Chase v. Barrett, 4 Paige, 143, 37, 
 
 43, 257 
 
 V. Bean, 58 N. H. 183, - 1046 
 
 V. Buhl Iron Works, 55 
 
 Mich. 139, - - - 383, 410 
 
 V. Deming, 42 N. H. 274, 151, 
 
 1052 
 
 V. Garvin, 19 Me. 211, - 888 
 
 V. Kendall, 6 Ind. 304, - 695 
 
 V. Scott, 33 Iowa, 309, - 276 
 
 V. Steel, 9 Cal. 64, - - 184 
 
 V. Stevens, 19 N. H. 465, 1135, 
 
 1150 
 
 V. Vaughan, 30 Me. 412, 505, 
 
 519 
 Chavener v. Wood, 2 Oregon, 
 
 182, - - - - - 296 
 Chazournes v. Edwards, 3 
 
 Pick. 5, 863 
 
 Cheap V. Cramond, 4 B. & Aid. 
 
 663, .... 16, 384 
 Cheeny v. Clark, 3 Vt. 431, - 75 
 Clieeseman v. Sturges, 6 Bosw. 
 
 520 ; 9 id. 246, - . - 791 
 v. Wiggins, 1 Thomp. & 
 
 C. 595, . . . 739, 923, 937 
 Cheesman v. Price, 35 Beav. 
 
 142, 591 
 
 Cheetham v. Ward, IB. & P. 
 
 630, 385 
 
 Cheever v. Lamar, 19 Hun, 130, 978 
 Chemung Canal Bk. v. Brad- 
 
 ner, 44 N. Y. 680, - - 349, 860 
 Chenango Bank v. Hyde, 4 
 
 Cow. 567, ... 368 
 
 Cheney v. Newberry, 67 Cal. 
 
 126, 129 
 
 Chenowith v. Chamberlin, 6 
 
 B. Mon. 60 (43 Am. Dec. 145), 172, 
 
 349, 358, 363 
 Cheshire, The, 8 Wall. 231, . 114 
 Cliester v. Dickerson, 54 N. Y. 
 
 1 (13 Am. Rep. 550), (affg. 52 
 
 Barb. 849; 45 How. Pr. 320). 150, 
 279, 299, 302, 473 
 
 ill
 
 Chi. J 
 
 TABLE OF CASES. 
 
 [CiT. 
 
 Chicago V. Garrity, 7 111. App. 
 
 474, 661 
 
 Chicago, Burlington & Quincy 
 
 R. R. V. Hoyt, 1 111. App. 
 
 374, 433 
 
 Chicago Life Ins. Co. v. Audi- 
 tor, 101 111. 82, - - - 661 
 Chicago Lumber Co. v. Ash- 
 worth, 26 Kan. 212, - - 296 
 Child V. Swain, G9 Ind. 230, 872, 897 
 Childress v. Emory, 8 Wheat. 
 
 642, 1070 
 
 Childs V. Hyde, 10 Iowa, 294, 725, 749 
 
 V. Seabury, 35 Hun, 548, 645 
 
 V. Walker, 2 Allen, 259, - 522, 
 
 558, 643, 655 
 Chipley v. Keaton, 65 N. Ca. 
 
 534, 544 
 
 Chipman, In re, 14 Johns. 217; 
 
 16 id. 102, - - - - 1117 
 Chippendale, Ex parte, 4 De G. 
 
 M. & G. 19, - 320, 766, 769, 785 
 Chisholm v. Cowles, 42 Ala. 
 
 179, - - 1135, 1136, 1139 
 
 Chissum v. Dewes, 5 Russ. 29, 657 
 Chittenden v. German Amer. 
 
 Bk. 27 Minn. 148, - - - 291 
 
 V. Witbeck, 50 Mich. 401, 305, 
 
 659, 768, 794, 798, 976 
 Choppinv. Wilson, 27 La. Ann. 
 
 444, .... 584, 756 
 Chouteau v. Barlow, 110 U. S. 
 
 238, 944 
 
 V. Raitt, 20 Oh. 132, 26, 153, 
 
 1018, 1022, 1158, 1162 
 Christian v. Crocker, 25 Ark. 
 
 327, 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. 562), - - 846 
 V. Clarke, 16 Up. Can. 
 
 Com. PI. 544, - - - 668 
 
 Christman v. Baurichter, 10 
 
 Phila. 115, - - - - 181 
 
 Christy v. Sherman, 10 Iowa, 
 
 535, ... - 377, 880 
 Chubruck v. Vernam, 42 N. Y. 
 
 432, - - - - 962, 964 
 Chuck, Ex parte, 8 Bing. 469, 55, 
 
 155, 556, 558 
 Church V. First Nat'l Bank, 87 
 
 111. 68, - - - - 1037, 1039 
 
 V. Knox, 2 Conn. 514, - 1103 
 
 V. Sparrow, 5 Wend. 223, 348, 
 
 447 
 Churchill v. Bailey, 13 Me. 
 
 64, 1165 
 
 V. Bowman, 39 Vt. 518, - 565 
 
 V. Proctor, 31 Minn. 129, 185, 
 
 291. 295, 927 
 Churchman v. Smith, 6 Whart. 
 
 146, .... 322, 983 
 
 Churton v. Douglas, H. V. 
 
 Johns. 174; 5 Jur. N. S. 887; 
 
 28 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, ... 83, 507, 509 
 
 Citizens' Mut. Ins. Co. v. Ligon, 
 59 Miss. 305, 52, 53, 603, 727, 
 
 741, 1000 
 
 City Bk. of Brooklyn v. Dear- 
 born, 20 N. Y. 244, - - 1160 
 
 V. McChesney, 20 N. Y. 
 
 240, .... 613, 618 
 City Bank of New Haven's 
 
 Appeal (Conn.), 7 Atl. Rep. 
 
 548, 453 
 
 City Bank of New Orleans v. 
 
 Stagg, 1 Handy, 382, - - 173 
 City Discount Co. v. McLean, 
 
 L. R. 9 C. P. 692, - - 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, 861 
 
 liii
 
 C3LA.J 
 
 TABLE OF CASES. 
 
 [Cla. 
 
 Claflin V. Butterly, 3 Abb. Pr. 
 
 446, 1094 
 
 Clagett V. Kilbourue, 1 Black, 
 
 346. 73, 379, 303. 937, 938, 1111 
 
 V. Salmon, 5 Gill & J. 
 
 314, - - - - - 386 
 Clan ton v. Price, 90 N. Ca. 96, 837, 
 
 453 
 
 Clap, Re, 3 Lowell, 168, - 601, 739, 
 
 746, 794, 838, 933, 939 
 
 , 2 Low. 236, - 505, 533, 539 
 
 Clapham v. Crabtree,73 Me. 473 
 
 (Crabtree v. Clapham, 67 id. 
 
 335), 274 
 
 Clapp V. Rogers, 12 N. Y. 283 
 
 (aff. 1 E. D. Smith, 549), 613, 614 
 
 V. Upson, 13 Wis. 493, - 634 
 
 Clark's Appeal, 73 Pa. St. 143, 360 
 Clark, Re, 3 D. & R. 860, - 110 
 V. Allee, 3 Harr. (Del.) 80, 1114 
 
 V. Billings, 59 Ind. 508, 505, 
 
 519 
 V. Brooks (Pa. Com. PL 
 
 1887), 19 Weekly Notes, 333, 505 
 V. Clark, 4 Porter (Ala,), 
 
 9, - - - 635, 636, 637, 879 
 
 V. CuUen, 9 Q. B. D. 355, 1066 
 
 V. Cashing, 53 Cal. 617, 1101, 
 
 1105 
 
 V. Dearborn, 6 Duer, 309, 
 
 V. Dibble, 16 Wend. 601, 
 
 V. Dunnam, 46 Cal. 305, 
 
 363 
 
 858 
 787, 
 
 970 
 1063 
 150, 
 
 V. Evans, 64 Mo. 358, 
 
 V. Fletcher, 96 Pa. St. 416, 
 
 153, 619, 633 
 
 V. Fowler, 57 Cal. 143, - 634 
 
 V. Gilbert, 33 Barb. 576, - 43 
 
 V. Gridley, 41 Cal. 119, 910, 957 
 
 V. Gridley, 49 Cal. 105, 38, 979 
 
 V. Holmes, 3 Johns. 148, 151, 
 
 1053 
 
 V. Houghton, 13 Gray, 38, 184, 
 
 201, 407 
 
 V. Howe, 23 Me. 560, - 732 
 
 V. Huflfaker, 26 Mo. 364, 1143, 
 
 1143 
 
 Clark V. Hyman, 55 Iowa, 14, 849, 
 
 365, 43» 
 
 V. Johnson, 90 Pa. St. 443, 353 
 
 V. Jones, 50 Cal. 435, - 758 
 
 V. Kensall, Wright (O.), 
 
 480, .... 1067, 1154 
 V. Leach, 33 Beav. 14 
 
 (affd. in 1 De G. J. & Sm. 
 
 409), - 316, 318, 341, 663, 667 
 V. McClelland, 3 Grant's 
 
 Cas. (Pa.) 31, - - - 339, 560 
 V. McKellar, 13 Up. Can. 
 
 C. P. 563, .... 42 
 
 V. Rives, 33 Mo. 579, 401, 406 
 
 v. Smith, 52 Vt. 529, 87, 43, 61 
 
 V. Sparhawk, 2 Weekly 
 
 Notes (Pa.), 115, - 383, 410, 430 
 
 V. Stoddard, 3 Ala. 366, • 1088, 
 
 1093 
 
 V. Taylor. 68 Ala. 453, - 1151 
 
 V. Thompson, 43 Tex. 138, 1087 
 
 V. Warden, 10 Neb. 87, - 781 
 
 V. Watkins, 9 Jur. N. S. 
 
 143; 8L. T. 8; 11 W. R. 319, 
 
 V. Wilson, 15 N. H. 150, - 
 
 V. Wilson, 19 Pa. St. 414, 
 
 677 
 1127 
 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. 633 
 
 (affg. 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, 
 846 
 835 
 931 
 
 241 
 
 25a 
 
 28 
 
 1022 
 
 825 
 
 liv
 
 Cla.] 
 
 TABLE OF CASES. 
 
 [Coc. 
 
 Clay, Ex parte, 2 De G, M. & G. 
 230, 833 
 
 V. Giubb, 1 Litt. (Ky.) 
 
 222, 278 
 
 V. Van Winkle, 75 Ind. 
 
 239, ... - 137, 139 
 
 Clayton's Case. See Devayues 
 
 V. Noble. 
 Clayton v. Kynaston, 2 Salk. 
 
 573, 885 
 
 V. May, 67 Ga. 769, - - 686 
 
 V. May, 63 Ga. 27, - 848, 1064, 
 
 1130 
 
 V. Thompson, 13 Ga. 206, 331 
 
 Cleather v. Tvvisden, 24 Ch. D. 
 
 731 ; 28 id. 340, - - - 477 
 Clegg V. Edmondson, 8 De G., 
 
 M. & G, 787, .... 305 
 V. Fisliwick, 1 Mac. & G. 
 
 294, - - - 304, 305, 996 
 
 V. Houston, 1 Phila. 352, 1131 
 
 Cleghorn v. Ins. Bank of 
 
 Columbus, 9 Ga. 319, - - 847 
 
 V. Johnson, 11 Iowa, 293, 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 
 
 V. Bowes. 17 Sim. 167, - 914 
 
 V. Hall, 2 De G. & J. 173, 304, 
 
 309, 801 
 
 V. Jessup, 36 N. J. Eq. 
 
 572, - - 256, 506, 1111, 1112 
 
 V. Lee, 8 Tex. 374, - - 951 
 
 V. Mitchell, Phil. (N. Ca.) 
 
 Eq. 3, 980 
 
 V. Norris, 8 Ch. D. 129, - 320 
 
 Cleveland v. Woodward, 15 
 
 Vt. 302 (40 Am. Dec. 682), . 1053 
 Cleverdon, Re, 4 Ont. App. 
 
 185, ... 785 786, 846 
 
 Click V. Click, Minor (Ala.), 79, 1091 
 Clifton V. Howard, 89 Mo. 193, 29 
 Cline V. Caldwell, 4 La. 137, - 43 
 V. Wilson, 26 Ark. 154, - 78 
 
 Clinton Lumber Co. v. Mitchell, 
 
 61 Iowa, 132, - - - 1154 
 
 Clonan v. Thornton, 21 Minn. 
 
 380, .... 854, 1138 
 Clouch V. Moyer, 23 Kan. 
 
 404, 960 
 
 Clough, In re, 31 Ch. D. 324. - 731 
 
 V. Hoffman, 5 Wend. 499, 635, 
 
 640 
 Coakley v. Weil, 47 Md. 277, - 559, 
 
 560, 503, 824 
 Coalter v. Coalter, 1 Rob. (Va.) 
 
 79, ... 943, 943, 945 
 Cobb V. Abbot, 14 Pick. 289, - 67 
 V. L 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. 262, 72, 
 
 577, 585 
 Cochrane v. Allen, 58 N. H. 
 
 250, 858 
 
 V. Stewart, 63 Mo. 424, 522, 655 
 
 Cock V. Carson, 45 Tex. 429, - 604, 
 
 727 
 V. Evans, 9 Yerg, (Tenn.) 
 
 287, 255 
 
 Cockburn v. Thompson, 16 
 
 Ves. 321, .... 1028 
 Cocke V. 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, Munf. (Va.) 
 
 464, 749 
 
 Cockerell v. Aucompte, 2 C. B. 
 
 N. S. 440, .... 75 
 Cockrell v. Thompson, 85 Mo. 
 
 510, - - - 761, 853, 1081 
 
 Iv
 
 Coc] 
 
 TABLE OF CASES. 
 
 [(DOL. 
 
 Cockroft V. Claflin, 64 Barb. 
 
 464 (aff'd without op. 53 N. 
 
 Y. 618), ... - 365, 367 
 Cocks V. Nash, 9 Bing. 841, - 385 
 Codding, Re, 9 Fed. Rep. 849, 292 
 Coddington v. Hunt, 6 Hill, 
 
 595, - - - 621, 622, 624 
 
 V. Idell, 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. Huling, 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, 8 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. lOS, 59 
 
 V. McCullough, 30 Ala. 
 
 107, - - 558, 567, 645, 824 
 Coffing V. Taylor, 16 111. 457, 629 
 Coggswell V. Cavis, 65 Wis. 
 
 191, - - - 623, 627, 1156 
 
 V. Wilson, 11 Oregon, 
 
 371, 86 
 
 Coit V. Owen, 2 Dessaus. 456, - 1160 
 Colbeck, In re, Buck, 48, - 55 
 
 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, 1027 
 Colehour v. Coolbaugh, 81 111. 
 
 29, 976 
 
 Coleman v. Bellhouse, 9 Up. 
 
 Can. C. P. 31, - 3:23, 458, 459 
 V. Coleman, 78 Ind. 344, 5, 531 
 
 Coleman v. Coleman, 12 Rich. 
 
 (S. Ca.) L. 183, - - 879, 893 
 
 V. Darling, g66 Wis. 155, - 838, 
 
 889 
 
 V. Eyre, 45 N. Y. 38, 2, 169, 
 
 208 
 V. Garlington, 2 Spears 
 
 (S. Ca.), L. 238, - - - 784 
 V. Lansing, 65 Barb. 54 ; 1 
 
 Thorn p. & C. 8, - - - 640 
 
 V. Pearce, 26 Minn. 123, - 473, 
 
 510, 511 
 Coles V. Coles, 15 Johns. 159 (8 
 
 Am. Dec. 231), - - 287, 868 
 
 V. Gurney, 1 Madd. 187, 1085 
 
 Colgate V. Colgate, 23 N. J. 
 
 Eq. 372, ... - 744, 801 
 Colgin V. Cummins, 1 Port. 
 
 (Ala.) 148, - - 772, 774, 789 
 Colgrove v. Tallman, 67 N. Y. 
 
 95 (23 Am. Rep. 90), (aff. 3 
 
 Lans. 97; 5 Hun, 103), - 534 
 
 CoUamer v. Foster, 26 Vt. 754, 874, 
 
 876, 889, 892 
 Collender v. Phelan, 79 N. Y. 
 
 366, - - - 549, 785, 795 
 
 CoUett V. Smith (Mass.), 10 N. 
 
 E. Rep. 173, - - - - 381 
 Colley V. Smith, 2 Moo. & Rob. 
 
 96, 
 
 Collie, Re, 3Ch. D. 481, - 
 Collier, Re, 12 Bankr. Reg. 266, 
 V. Cairns, 6 Mo. App. 188, 
 
 851 
 842 
 832 
 726, 
 734 
 
 V. Chadwick, not yet re- 
 
 666 
 
 ported, - - - - 
 
 V. Cross, 20 Ga. 1, 1078, 1159, 
 
 1160 
 Collinge, Ex parte, 4 D. J. & 
 
 S. 533, 843 
 
 Collins' Appeal, 107 Pa. St. 590, 548 
 Collins V. Butler, 14 Cal. 223, 268, 
 
 1079, 1084 
 V. Charleston Mut. F. Ins. 
 
 Co. 10 Gray, 155, - 265, 284, 457 
 
 V. Collins, 26 Beav. 300, - 247 
 
 V. Decker, 70 Me. 23, - 282 
 
 Ivi
 
 Col.] 
 
 TABLE OF CASES. 
 
 [Con. 
 
 Collins V. Dickinson, 1 Hayw. 
 
 (N. Ca.) 240, - - - 571, 577 
 
 V. Hood, 4 McLean, 186, 562, 
 
 563 
 — — V. Jackson, 31 Beav. 645, 181, 
 
 269 
 
 V. Jackson, 54 Mich. 186, 657 
 
 V. Owens, 34 Ala. 66, - 810 
 
 V. Warren, 29 Mo. 286, - 290, 
 
 291 
 Collomb v.^ Caldwell. 16 N. Y. 
 
 484, 1 .... 569 
 Colloway T. Tate, 1 Hen. & M. 
 
 (Va.)9, .... 978 
 
 Collumb V. Read, 24 N. Y. 505, 283, 
 
 284, 285, 298 
 Collyer v. Moulton, 9 R. I. 90, 505 
 Colnaghi v. Bluck, 8 C. & P. 
 
 464, .... 286, 709 
 Colt V. Lasnier, 9 Cow. 320, - 483 
 V. Wilder, 1 Edw. Cli. 
 
 484, .... 504, 510 
 
 Columbian Government v. 
 
 Rothschild, 1 Sim. 94, - 938 
 
 Columbian Mfg. Co. v. Dutch, 
 
 13 Pick. 125, .... 1167 
 Colville V. Oilman, 13 W. Va. 
 
 314, 910 
 
 Col well V. Britton, 26 N. W. 
 
 Rep. 538 ; 59 Midi. 350, - 23 
 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. ) 226, 401, 406 
 
 V. Mitchell, 58 Cal. 42, - 189, 
 
 928, 1114 
 
 V. Wilkins, 9 Me. 28, 186, 1102 
 
 1112, 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 
 
 Commonwealth V. Bennett, 118 
 
 Mass. 443, ... - 43 
 
 V. Sumner, 5 Pick. 300, - 894 
 
 Comstock V. Buchanan, 57 
 
 Barb. 127, - - - - 303 
 
 V. Hier, 73 N. Y. 269, - 1170 
 
 V. White, 31 Barb. 801, 974, 977 
 
 Conant v. Frary, 49 Ind. 530, 184, 
 
 185 
 Condy v, Mitchell, 87 L. T. N. 
 
 S. 766; 26 W. R. 269 (affg. 37 
 
 L. T. N. S. 268), - - - 675 
 Conery v. Hayes, 19 La. Ann. 
 
 325, - * - . . - 700 
 
 Congdon v. Monroe, 51 Tex. 
 
 109, 1094 
 
 Conger v. Cotton, 37 Ark. 286, 647 
 V. Piatt, 25 Up. Can. Q. B. 
 
 277, - - - 281, 290, 294 
 
 Conkey v. Barbour, 22 Ind. 
 
 196, * 703 
 
 Conklin v. Barton, 43 Barb. 
 
 435, - - - 37, 43, 98, 257 
 V. Cabanne, 9 Mo. App. 
 
 579, 1019 
 
 v.^ Harris, 5 Ala. 213, 456, 1119 
 
 V. Leeds, 58 111., 178, - 275 
 
 V. Ogborn, 7 Ind. 553, 694, 695, 
 
 698 
 Conley v. Chapman, 74 Ga. 
 
 709, 1089 
 
 Couuecticut, etc. Ins. Co. v. 
 
 Bowler, 1 Holmes, 263, - 653 
 
 Connecticut River B'k v. 
 
 French, 6 Allen, 313, - 352, 356 
 Connell, Ex parte, 3 Deac. 201, 261, 
 
 843 
 V. Owen, 4 Up. Can. C. P. 
 
 113, .... 711, 730 
 
 Conner v. Abbott, 35 Ark. 865, 6 
 
 Connolly v. Davidson, 15 Minn. 
 
 519, .... C6, 67 
 
 Conrad v. Buck, 21 W. Va. 396, 531, 
 583, 695, 708, 704, 769 
 Conroy v. Campbell, 45 N. Y. 
 
 Superior Ct. 326, - - - 813 
 v. Woods, 13 Cal. 626, 562, 929 
 
 Ivii
 
 Con.] 
 
 TABLE OF CASES. 
 
 [Coo. 
 
 Consolidated Bank v. State, 5 
 La. Ann. 44, - - - - 56 
 
 Const V. Harris, Turn. & Euss. 
 496, - 211, 213, 433, 433, 434 
 
 Converse v. Citizens' Mut. Ins. 
 Co. 10 Cush. 37, - - 271, 285 
 
 V. McKee, 14 Tex. 20, 410, 988 
 
 V. Shambaugh, 4Neb, 376, 1151, 
 
 1154 
 
 Conwell V. McCowan, 81 111. 
 
 285, 
 
 — V. Sandidge, 5 Dana, 210, 
 
 — V. Sandidge, 8 Dana, 273, 
 
 532 
 
 181, 
 
 182 
 
 188, 
 
 629, 631, 810 
 
 Cony V. Wheelock, 33 Me. 306, 690 
 
 Cook, Ex parte, 2 P. Wms. 500, 825 
 
 , Ex parte, Montagu, 228, 837 
 
 , In re, 3 Biss. 122, - - 563 
 
 V. Arthur, 11 Ired. (N. 
 
 Ca.) L. 407, - - - - 1103 
 
 V. Batchellor, 3 B. & P. 
 
 150, 1031 
 
 V. Bloodgood, 7 Ala. 683, 410 
 
 V. Carpenter, 34 Vt. 121, 86 
 
 V. Castner, 9 Cush. 266, - 472 
 
 V. CoUiugridge, Jac. 607 
 
 (and decree in 27 Beav. n.), - 244, 
 605, 665, 744, 796, 799, 974, 975 
 
 V. Frederick, 77 Ind. 406, 1147 
 
 V. Garrett, 1 Brev. (S. Ca.) 
 
 856 
 234 
 662 
 
 676 
 733 
 
 1073 
 
 779 
 
 388, 
 
 — V. Jenkins, 35 Ga. 113, - 
 
 — V. Jenkins, 79 N. Y. 575. 
 
 — V. Johnson, 47 Conn. 175 
 (36 Am. Rep. 64), - 
 
 — V. Lewis, 36 Me. 340, 
 
 — V. Martin, 9 Sm. & Mar. 
 
 379, 
 
 V. Phillips, 16 III. App. 
 
 446, .... 
 
 — V. Port Fulton, 106 Ind. 
 
 170, 175 
 
 — V. Rogers, 3 Fed, Rep. 69 
 
 (8 Am. Law Rec. 641), 600, 601 
 
 — V. Slate Co. 36 Oh. St. 
 
 135, - - - 91,609,1155 
 
 Cooke, Re, 13 Bankr. Reg. 30, 838 
 
 V. Allison, 30 La. Ann. 
 
 Part II, 963, - - 434, 761 
 
 V. Benbow, 3 Do G., J. & 
 
 Sm. 1 ; 6 New Rep. 135, 263, 781, 
 
 786 
 
 V. Cooke, L. R. 4 Eq. 77, 233 
 
 V. Seeley, 2 Ex. 746, - 1019 
 
 Cookingham v. Lasher, 38 
 
 Barb. 656; 2 Keyes, 454 
 
 (1 Abb. App. 436), - , 151, 1053 
 
 Cookson V. Cookson, 8 Sim. 
 
 529, 216 
 
 CooJey V. Broad, 29 La. Ann. 
 
 315 (29 Am. Rep. 332), - - 17, 67 
 
 V. Sears, 25 111. 613, - 275, 1081 
 
 Coomer v. Bromley, 5 De G. & 
 
 Sm. 532, .... 475 
 
 Coon V. Pruden, 25 Minn. 105, 395, 
 
 400 
 Coons V. Renick, 11 Tex. 134 
 
 (60 Am. Dec. 230), - 322, 334 
 
 Coope V. Bowles, 43 Barb. 87; 
 
 18 Abb. Pr. 442, . . .338 
 
 V. Eyre, 1 H. Bl. 37, 65, 71, 80 
 
 V. Webb, 15 Sim, 454. - 914 
 
 Cooper, Ex parte, 1 M. D. & 
 
 De G. 358, .... .541 
 
 V. Bailey, 53 Me. 230. 194, 1091 
 
 V. Coates, 21 Wall. 105, . 1067 
 
 V. Drouillard, 5 Blackf. 
 
 152, 
 
 — V. Frf'derick, 4 G. Greene 
 
 1070 
 
 (Iowa), 403 (F. v. C. 3 id. 171), 434, 
 
 435, 544, 936 
 V. Hood, 26 Beav. 293, - 247 
 
 V. McNeill, 14 111. App. 
 
 403, .... 78G, 788 
 
 V. Metropolitan Bd. of 
 
 Wks. 25 Ch. D. 473, - - 659 
 
 V. Reid, 2 Hill (S. Ca.) Ch. 
 
 549, .... 743, 772 
 
 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. 287), - 190, 1114 
 
 Iviii
 
 Cop.] 
 
 TABLE OF CASES. 
 
 [Cou. 
 
 Copcutt V. Merchant, 4 Bradf. 
 
 18, 747, 750 
 
 Cope V. Warner, 13 S. & R. 
 
 411, 747 
 
 Copeland v. Crane, 9 Pick. 73, 937 
 Copes V. Fultz, 1 Sm. & Mar. 
 
 (Miss.) G23, - - - 714, 723 
 Copland v. Toulmin, 7 CI. & 
 
 Fin. 349, . - - - 181 
 Copley V. Lawliead.ll La. Ann. 
 
 615, 328 
 
 Coppage V. Barnett, 34 Miss. 
 
 621, 1153 
 
 Corbett, Re, 5 Sawy. 206, 1131,1133 
 Corbin v. McChesney, 26 III. 
 
 231, 647 
 
 Cornells v. Stanhope, 14 R. 1. 
 
 97, - - - - 412, 493, 1037 
 Corner v. Oilman, 53 Md. 364, 932, 
 
 934 
 Corning v. Abbott, 54 N. H. 
 
 469, 323 
 
 V. Grohe, 65 Iowa, 328, - 779 
 
 Cornwall v. Cornwall, 6 Bush, 
 
 369, 298 
 
 Corps V. Robinson, 2 "Wash. C. 
 
 C. 388, ... - 331, 1154 
 Corrie v. Calder, 6 Rich. (S. 
 
 Ca.) L. 198, .... 1169 
 Corser v. Cartwright, L. R. 7 
 
 H.L.731, .... 294 
 Corwin v. Suydam, 24 Ohio St. 
 
 209, - - - 425, 430, 1048 
 
 Cory V. Long, 2 Sweeny (N. 
 
 Y.), 491, - - - 551, 552 
 
 Cosio V. DeBernales, Ryan & 
 
 Moody, 102, - ... 139 
 Costeker v. Horrox, 3 Young 
 
 & C. Ex. 530, - - - 972 
 
 Coster V. Bank of Georgia, 24 
 
 Ala. 37, ... 186, 1102 
 
 V. Clarke, 3 Edw. Ch. 411, 439, 
 
 446 
 V. Murray, 5 Johns. Cb. 
 
 523, 943 
 
 ▼. Thomason, 19 Ala. 717, 398, 
 
 697 
 
 Costello V. Nixdorfif, 9 Mo. 
 
 App. 501, .... 614 
 Costley V. Towles, 46 Ala. 660, 739 
 
 V. Wilkerson, 49 Ala. 210, 714, 
 
 722 
 Cothay v. Fennell, 10 B. & C. 
 
 671, .... 1020, 1023 
 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, 72 
 
 Cottle V. Harrold, 72 Ga. 830, - 291 
 
 V. Leitch, 35 Cal. 434, 591, 939 
 
 Cotton V, Evans, 1 Dev. & Bat. 
 
 (N. Ca.) Eq. 284, 347, 353, 354, 361 
 
 693, 1081 
 Cottrill V. Vanduzen, 32 Vt. 
 
 511, .... 1151, 1154 
 
 Cotzliausen v. Judd, 43 Wis. 
 
 213 (28 Am. Rep. 539), - 321, 427, 
 
 428, 1038, 1044 
 
 Couch V. Mills, 21 Wend. 424, 385 
 
 V. Woodruff, 63 Ala. 466, 17, 
 
 28, 479 
 Couchman v. Maupin, 78 Ky. 
 
 33, 824 
 
 Coudrey v. Gilliam, 60 Mo. 86, 942, 
 
 949, 950 
 Couilliard v. Eaton, 139 Mass. 
 
 105, - - - • - 
 Couldery v. Bartrum, 19 Ch. 
 
 D. 394, 
 
 Course v. Prince, 1 Mill (S. 
 
 Ca.), 413, 
 V. Prince, 1 Mill (S. Ca.), 
 
 881 
 843 
 274 
 853 
 
 416 (12 Am. Dec. 649), - 
 Coursen v. Hamlin, 2 Duer, 
 
 513, .... 770, 771 
 Coursey v. Baker, 7 Har. & J. 
 
 28, . - - - 341, 381, 383 
 Coursin's Appeal, 79 Pa. St. 
 
 220, 70 
 
 Courtney v. Wagstaff, 16 C. 
 
 B. N. S. 110, - ... 88 
 Courts V. Happle, 49 Ala. 254, 59 
 
 Ux
 
 Cov.J 
 
 TABLE OF CASES. 
 
 [Cra. 
 
 Coventry v. Barclay, 33 Beav. 
 
 1 ; and on app. 3 De G. J. & 
 
 Sm. 320, - - - - 245 
 V. Barclay, 3 D. J. & S. 320 
 
 (on app. from 33 Beav. 1), 211, 
 
 215, 245, 954 
 Coverly v. Braynard, 28 Vt. 
 
 738, 1126 
 
 Coville V. Oilman, 13 W. Va. 
 
 314, - - - 910, 914, 1160 
 
 Covington v. Leak, 88 N. Ca. 
 
 133, 854 
 
 Co%van v. Baird, 77 N. Ca. 
 
 201, 1067 
 
 V. Gill, 11 Lea (Tenn.), 
 
 674, - - 825, 828, 838, 839 
 V. Iowa State Ins. Co. 40 
 
 Iowa, 551 (20 Am. Rep. 583), 271 
 
 V. Kinney, 33 Oh. St. 422, 1151, 
 
 1154 
 V. Mclntyre, 19 Up. Can. 
 
 Q. B. 607, .... 1056 
 Cowand v. Pulley, 11 La. Ann. 
 
 1, 328 
 
 Cowart V. Perrine, 18 N. J. Eq. 
 
 454, - - - - 942, 946 
 Cowden v. Cairns, 28 Mo. 471, 291, 
 
 295 
 
 V. Elliott, 2 Mo. 60, - - 723 
 
 Cowdin V. Hurford, 4 Oh. 132, 454, 
 1049, 1117, 1118, 1119 
 Cowell V. Sikes, 2 Russ. 191, - 832 
 Cowles V. Garrett, 30 Ala. 341, 64 
 Cox V. Cox, 2 Porter (Ala.), 
 
 533, 389 
 
 V. Delano, 3 Dev. L. 89, - 38 
 
 V. Harris, 48 Ala. 538, - 1066 
 
 V. Hickman, 8 H. L. 268, 18, 
 
 19, 42, 47, 55, 323, 1052 
 
 V. Hubbard, 4 C. B. 317, 1023 
 
 V. McBurney, 3 Sandf. 
 
 561, 281 
 
 V. Miller, 54 Tex. 16, 139, 826 
 
 V. Peters, 13 N. J. Eq. 39, 993, 
 
 997 
 V. Piatt, 82 Barb. 126; 19 
 
 How. Pr. 121, - - - 566 
 
 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. 
 
 320; 72 id. 473, . - 274,275 
 
 V. May, 1 B. Mon. 289, - 145 
 
 V. Randall, 133 Mass. 552, 788, 
 
 801 
 Craft V. McConoughy, 79 111. 
 
 346, .... 112, 119 
 Cragg V. Ford, 1 Younge & 
 
 Coll. Ch. 280, 
 
 762, 763 
 1160 
 
 Cragin v. Carleton, 21 Me. 493, 
 V. Gardner (Mich.), 31 N. 
 
 W. Rep. 206, - . 725, 1065 
 Craig V. Alverson, 6 J. J. Mar. 
 
 609, . . . 96,416,700 
 V. Chandler, 6 Colorado, 
 
 543, .... 136, 938 
 V. Hulschizer, 34 N. J. L. 
 
 363, - - . 383, 1037, 1039 
 Cram v. Union Bank of Roch- 
 ester, 4 Keyes, 558; 1 Abb. 
 
 App. Dec. 461 ; 42 Barb. 426, 633 
 Cramer v. Bachmann, 68 Mo. 
 
 310, .... 775, 777 
 
 707 
 
 V. Metz, 57 N. Y. 659, 
 
 Crampton v. Jerowski, 2 Fed. 
 
 Rep. 489, .... 563 
 Crane v. Barry, 60 Ga. 362, . 942 
 
 V. French, 1 Wend. 311, 377, 
 
 379, 1114 
 
 V. Gloster, 13 Nev. 379, . 1170 
 
 V. Morrison, 4 Sawy. 138; 
 
 17 Bankr. Reg. 393, 551, 557, 561, 
 
 567, 1109 
 Cranor v. Winters, 75 Ind. 301, 137 
 Crary v. Williams, 2 Oh. 65, . 201 
 Craven v. Edmonson, 6 Bing. 
 
 734, 750 
 
 V. Knight, 2 Ch. Rep, 226, 845 
 
 Crawford v. Austin, 34 Md. 49, 43 
 
 V. Baum, 12 Rich. L. 75, - 1114 
 
 V. Collins, 45 Barb. 269; 
 
 30 How. Pr. 398, - - - 193
 
 Cra.] 
 
 TABLE OF CASES. 
 
 [Ceo. 
 
 Cmwford v. Hamilton, 3 Madd. 
 
 254, - - - - - 158 
 
 V. Spotz, 11 Phila. 255, - 761 
 
 V. Stirliu-, 4 Esp. 207, - 349 
 
 V. Thoroughmau, 13 Mo. 
 
 App. 579, .... 862 
 Ci'awshay v. Collins, 15 Vqs. 
 
 218; 1 J. & W. 267; 2 Euss. 
 
 325, 316, 255, 658, 755, 794, 796, 
 
 797, 967, 971, 974 
 
 V. Maule, 1 Swanst. 495, - 158, 
 
 163, 257, 281, 286, 573, 603, 679, 977, 
 
 1013 
 Creath v. Smith, 20 Mo. 113, - 294 
 Creel v. Bell, 2 J. J. Mar. 309, 1030 
 Cregler v. Durham, 9 Ind. 375, 150, 
 
 375, 1143 
 Cremer v. Higginson, 1 Mason, 
 
 823, - - . . 653, 656 
 Crenshaw v. Wickersham, 15 
 
 Iowa, 154, .... 1094 
 Crescent City v. Camp, 64 Tex. 
 
 521, . - - . 718, 719 
 Crescent Ins. Co. v. Baer (Fla. 
 
 1887), 1 So. R. 318, - 137, 1103 
 Cresson's Appeal, 91 Pa. St. 
 
 168, - ' - - - - 941 
 Cresswell v. Oberly, 17 III. 
 
 App. 281, - ... 4 
 
 Greswell v. Blank, 8 Grant's 
 
 Cas. (Pa.) 330, - - - 749 
 Crews V. Lackland, 67 Mo. 619, 1094 
 Criley v. Vasel, 53 Mo. 445, - 547 
 Crisp, Ex parte, 1 Atk. 133, - 830 
 Crites v. Wilkinson, 65 Cal. 
 
 559, 403 
 
 Crocker v. Col well, 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, Re, 17 Bankr. Reg. 324; 
 
 8 Biss. 188, .... 1131 
 V. B. & O. R. R. 1 Mac- 
 Arthur (D. C), 493, - - 66 
 Cron V. Cron, 56 Mich. 8, - 566 
 
 Cronkhite v. Herrin, 15 Fed. 
 
 Rep. 888, .... 704 
 Cronly v. Bank of Ky. 18 B. 
 
 Mon. 405, - - - 094, 695 
 Crook V. Davis, 28 Mo. 94, - 1151 
 V. Rindskopf, 105 N. Y. 
 
 476 (rev. s. c. 34 Hun, 457), 5G9 
 V. Taylor, 12 111. 353, - 1169 
 
 Crooker v. Crooker, 46 Me. 250 
 (9 Am. Law. Reg. O. S. 539), 584, 
 
 1109 
 
 V. Crooker, 53 Me. 267, 453, 
 
 527, 820, 1111 
 Crooks V. Smith, 1 Grant's Ch. 
 
 (Up. Can.) 356, - . - 934 
 Croone v. Bivens, 2 Head, 339, 533, 
 
 551, 553 
 Cropper v. Coburn, 3 Curt. C. 
 C. 465, - - 915, 1106, 1107, 1109 
 
 v. Knapman, 2 Y. & C. 
 
 Ex. 338 ; 6 L. J. N. S. Ex, 
 
 Eq. 9, 935 
 
 Crosby v. Jeroloman, 37 Ind. 
 264, .... 454, 535 
 
 V. Dermitt, 7 Cal. 146, 276, 870, 
 
 871, 872, 873 
 
 V. Nichols, 3 Bosw. 450, 561, 
 
 893 
 Cross V. Cheshire, 7 Ex. 43, - 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. 
 
 363 (35 Am. Dec. 684), - 375, 544 
 Crosthwait v. Ross, 1 Humph. 
 33 (34 Am. Dec. 613), - 341, 344, 
 
 318, 371, 374 
 Crottes V. Frigerio, 18 La. 
 Ann. 383, .... 851 
 Ixi
 
 Ceo.] 
 
 TABLE OF CASES. 
 
 [CXJB. 
 
 Crouch V. Bowman, 3 Humph. 
 
 209, - - - 199, 200, 453 
 
 V. Woodruff, 63 Ala. 466, 779 
 
 Croughtoii V. Forrest, 17 Mo. 
 
 131, - - 410, 544, 545, 790 
 Crow V. Drace, 61 Mo. 225, 281, 291 
 
 V. Green, 111 Pa. St. 637, 882 
 
 V. Weidner, 36 Mo. 413, 726, 
 
 734 
 Crowder, Ex parte, 2 Vernon, 
 
 706, 825 
 
 Crovvell V. Western Reserve 
 
 Bk. 3 Oh. St. 406, - - 1147 
 
 Crowley v. Barry, 4 Gill, 194, 697 
 Crowninshield v. Strobel, 2 
 
 Brev. (S. Ca.)80, - - - 1130 
 Crozier v. Kirker, 4 Tex. 252 
 
 (51 Am. Dec. 724), 200, 341, 361, 
 
 430, 439 
 
 V. Shauts, 43 Vt. 478, 545, 1045 
 
 Cruess v. Fessler, 39 Cal. 336, - 657 
 Cruikshank v. McVicar, 8 
 
 Beav. 106, - - - - 919 
 Crumless v. Sturgess, 6 Heisk. 
 
 (Tenn.) 190, - - - 467, 700 
 Cruttwell V. Lye, 17 Ves, 335 ; 
 
 1 Rose, 123, 657, 664, 666, 667, 669 
 Cubitt V. Porter, 8 B. & C. 257, 274 
 Culbertson v. Townsend, 6 
 
 Ind. 64, 724 
 
 Culley V. Edwards, 44 Ark. 
 
 423, - - - - 23, 47, 908 
 Cullum V. Batre, 1 Ala. 126, - 746 
 
 V. Bloodgood, 15 Ala. 34, 401, 
 
 406 
 Cumraings' Appeal, 25 Pa. St. 
 
 268 (64 Am. Dec. 695), - - 847 
 Cummings v. Morris, 25 N. Y. 
 
 625, - - - 850, 880, 930 
 
 V. Fullam, 13 Vt. 441, - 1106 
 
 V. Parish, 39 Miss. 413, - 333 
 
 Cummins v. Cassily, 5 B. Mon. 
 
 74, 416 
 
 Cumpston v. McNair, 1 Wend. 
 
 457, - - - 26,33,1135 
 
 Cunliff V. Dyerville Mfg. Co. 7 
 
 R. L 325, - - - 770, 776 
 
 Cunningham v. Bragg, 37 Ala. 
 
 436, 694 
 
 V. Carpenter, 10 Ala. 109, 383, 
 
 1169 
 
 V. Green, 23 Ohio St. 296, 114, 
 
 784 
 
 V. Gushee, 73 Me. 417, - 
 
 V. Ihmsen, 63 Pa. St. 351, 
 
 847 
 
 530, 
 
 881 
 
 V. Littlefield, 1 Edw. Ch. 
 
 104, 
 
 383 
 
 V. Munroe, 15 Gray, 471, 754, 
 
 1026 
 
 V. Smith, 11 B. Mon. 325, 764, 
 
 978, 985 
 
 V. Smithson, 13 Leigh, 33, 439, 
 
 440, 441, 1056, 1057 
 
 V. Sublette, 4 Mo. 224, 330, 331 
 
 Currey v. Warrington, 5 Har. 
 
 (Del.) 147. - - 454. 456, 750 
 Currier v. Bates, 63 Iowa, 537, 763 
 
 V. Rowe, 46 N. H. 73, - 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. 279, - 690 
 
 V. Fowler, 87 N. Y. 33 (41 
 
 Am. Rep. 343), (affg. 14 Jones 
 
 & Sp. 195), - - - 23, 47, 49 
 
 V. Kurtz, 33 Miss. 24, - 700 
 
 V. Roundtree, 51 Cal. 184, 1095, 
 
 1096 
 
 V. Stokes, 12 R. L 53, - 1057 
 
 V. White, 51 Cal. 530, 094, 700, 
 
 704 
 Curtin v. Munford, 53 Ga. 168, 1007 
 Curtis V. Belknap, 31 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, 58 Wis. 
 
 499 (46 Am. Rep. 647), 833, 834 
 
 Izii
 
 Cur.] 
 
 TABLE OF CASES. 
 
 [Dav. 
 
 Curyea v. Beveridge, 94 HI. 
 
 424, 966 
 
 Gushing v. Marston, 12 Cush. 
 
 431, 1018 
 
 V. Smith, 43 Tex. 261, 107, 108 
 
 Cushman v. Bailey, 1 Hill, 536, 47 
 Cutler V. Hake, 47 Mich. 80, - 262 
 
 V. Thomas, 25 Vt. 73, 72, 73, 
 
 458, 1136, 1145 
 V. Winsor, 6 Pick. 335 (17 
 
 Am. Dec. S85), - - - 45, 59 
 Cutts V. Haynes, 41 Me. 560, - 1094 
 
 D. 
 
 Dabney v. Stidger, 4 Sm. «fe 
 
 Mar. 749, - - - 398, 452 
 
 Daby v. Ericsson, 45 N. Y. 
 
 786, 722, 731 
 
 Dages V, Lee, 20 W. Va. 584, 524, 
 
 527 
 Dahlgreen v. Duncan, 7 Sm. & 
 
 Mar. 280, - - 531, 747, 825, 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, 
 
 803, 331 
 
 V. Kent, 58 Ind. 584, - 930 
 
 V. Thomas, 67 Ind. 570, - 853. 
 
 866 
 
 V. Pierce, 85 Pa. St. 474, 41, 43 
 
 Dales V. Weaber, 18 W. R. 993, 677 
 Dalton City Co. v. Dalton Mfg. 
 
 Co. 83 Ga. 243, - - 45, 723 
 
 V. Haws, 37 Ga. 115, - 45 
 
 Dampf s Appeal, 106 Pa. St. 73, 926, 
 
 966 
 Dana v. Barrett, 3 J. J. Mar. 
 
 (Ky.)8, .... 858 
 
 V. Conant, 30 Vt. 246, 531, 690 
 
 V. Gill, 5 J. J. Mar. 243 
 
 (20 Am. Dec. 255), 275, 856, 889 
 
 V. Lull, 17 Vt. 391, - 338, 583 
 
 V. Stearns, 3 Cush. 372, - 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. 84, 650 
 
 Danforth v. Carter, 1 Iowa, 
 
 546, 1121 
 
 V. Carter, 4 Iowa, 230, - 1143, 
 
 1158 
 Daniel v. Daniel, 9 B. Mon. 195, 383, 
 
 1033, 1042 
 
 V. Nelson, 10 B. Mon. 316, 700 
 
 V. Owens, 70 Ala. 297, - 1101, 
 
 1108, 1111 
 
 V. Toney, 2 Met. (Ky.) 
 
 523, .... 416, 420 
 
 V. Townsend, 21 Ga. 155, 750 
 
 Daniels, Petition of, 14 R. I. 
 
 500, - - - 338, 340, 418 
 Danvers v. Dorrity, 14 Abb. 
 
 Pr. 206, .... 976 
 
 Dauvill Co. V. Parks, 88 111. 
 
 170, 177 
 
 Darby v. Darby, 3 Drewry, 
 
 495, - - - 279, 297, 974 
 Darden v. Crosby, 30 Tex. 150, 554 
 Darland v. Roseucrans, 56 
 
 Iowa, 122, ... - 561 
 Darling v. Bellhouse, 19 Up. 
 
 Can. Q. B. 263, - - - 23, 83 
 V. Boston & C. R. R. 11 
 
 Allen, 295, .... 66 
 
 V. Magnan, 13 Up. Can. 
 
 Q. B. 471, - - - 609,618 
 
 V. March, 22 Me. 184, 349, 362, 
 
 364, 899, 696 
 Darlington v. Garrett, 14 111. 
 
 App. 238, - - - ' - 360 
 Darlington Banking Co., Ex 
 
 parte, 4 Da G. J. & S. 581, 341, 
 
 360 
 Darrow v. St. George, 8 Colo. 
 
 592, ... - 40, 43 
 
 Darst V. Roth, 4 Wash. C. C. 
 
 471, .... 293, 416 
 Dart V. Farmers' Bank, 27 
 
 Barb. 337, .... 566 
 Davenport v. Davis, 23 Me. 24, 361 
 
 E 
 
 Ixiii
 
 Day.] 
 
 TABLE OF CASES. 
 
 [Day. 
 
 Davenport v. Gear, 3 111. 495, 
 V. Ruulett, 3 N. -H. 386, 
 
 8G1 
 
 347, 
 
 3G2 
 
 David V. Birchard, 53 Wis. 
 493, - - - 147, 560, 562 
 
 V. Ellice, 5 B. & C. 196; 
 
 7 D. & R. 690 (affirming s. C. 
 as David v. Ellis, 1 C. & P. 
 
 368), '- - - 505, 520, 528 
 
 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, 31 Ala. 125, - 1091 
 
 V. Thirkell, 3 Grant's Ch. 
 
 (Up. Can.) 330, 595, 780, 785, 897 
 
 V. Weems, 58 Ala. 187, 722, 724 
 
 D?,vies V. Davies, 2 Keen, 534, 743, 
 
 924, 926 
 
 V. Hodgson, 25 Beav. 177, 664, 
 
 665 
 • V. Skinner, 58 Wis. 638 
 
 (46 Am. Rep. 65), - - - 893 
 Davis, Estate of, 5 Whart. 
 
 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, - 232 
 
 V. Anable, 2 Hill, 339, - 538 
 
 V. Berger, 54 Mich. 652, - 336 
 
 V. Blackwell, 5 111. App. 
 
 32, - - 348, 349, 351, 360, 448 
 
 V. Briggs, 39 Me. 304, 683, 884 
 
 V. Buchanan, 12 Iowa, 575, 1064 
 
 V. Choteau, 33 Minn. 548, 1029 
 
 V. Christian, 15 Gratt. 11, 298, 
 
 299, 598, 600, GDI 
 V. Church, 1 "Watts & S. 
 
 240, 722 
 
 V. Church, 1 E. D. Smith, 
 
 279; 8N. Y. 452, - - - 1031 
 
 V. Cook, 9 Nev. 184, - 347, 1058, 
 
 1086 
 
 V. Cook, 14 Nev. 265, 344, 361, 
 
 367 
 
 Davis V. Davis, 60 Miss. 615, 910, 913 
 
 V. Dodge, 30 Mich. 267, - 424, 
 
 427, 647 
 
 V. Evans, 39 Vt. 182, - 78 
 
 V. Gelhaus, 44 Oh. 69, 481, 483, 
 
 487 
 
 V. Grove, 2 Robt. (N. Y.) 
 
 134; id. 635 (27 How. Pr. 70), 929, 
 
 995 
 V. Howell, 33 N. J. Eq. 72, 825, 
 
 833 
 
 V. Keyes, 38 N. T. 94, - 621 
 
 V. Kline, 76 Mo. 310, - 1065 
 
 V. Lane, 10 N. H. 161, - 581 
 
 V. Merrill, 51 Mich. 4S0, 882, 884 
 
 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, 27 Minn. 390; 
 
 29 id. 201, 412, 493, 1043, 1047, 
 
 1048 
 
 ■ V. Sowell, 77 Ala. 262, 711, 715, 
 
 716, 726, 730 
 
 V. Spencer, 24 N. J. 386, - 1080 
 
 V. Werden, 13 Gray, 305, 1118 
 
 V. White, 1 Houst. 223, - 1105 
 
 V. Willis, 47 Tex. 154, 454, 613, 
 
 1049, 1050 
 Davison v. Robertson, 3 Dow. 
 
 218, 341 
 
 Daw V. Rooke. See Rooke v. 
 
 Nisbet, 804 
 
 Dawson v. Beeson, 22 Ch. D. 
 
 504, .... 242, 667 
 
 v. Dawson, 1 Atk. 1, - 963 
 
 V. Gurley, 22 Ark. 381, - 59 
 
 V. Wilson, 55 Ind. 216, - 1079 
 
 Day V. Lafferty, 4 Ark. 450, - 419 
 
 V. Lockwood, 24 Conn. 
 
 185, - - 758,764,781,899 
 
 V. McLeod, 18 Up. Can. 
 
 Q. B. 256, - - - - 351 
 
 Ixiv
 
 Day.] 
 
 TABLE OF CASES. 
 
 [Dem. 
 
 Day V. McQuillan, 13 Minn. 
 
 205, 1103 
 
 V. Stevens, 88 N. Ca. 83 
 
 (43 Am. r.ep. 732), - - Gl 
 
 V. Wetherby, 20 Wis. 3_G3, 5G8 
 
 Dayton v. Bartlett, 38 Oh. St. 
 
 357, - - - . 714, 772 
 
 V. Wilkes, 17 How. Pr. 
 
 510, - - - 660,664,669 
 
 V. Wilkes, 5 Bosw. 655, 551, 
 
 557, 927 
 Deal V. Bogue, 20 Pa. St. 228 
 
 (57 Am. Dec. 702), 1106, 1111 
 
 Dean v. Dean, 54 Wis. 23, 252, 605 
 
 V. Emerson, 102 Mass. 480, 676, 
 
 677 
 V. Harris, 33 L. T. N. S. 
 
 639, 22, 47 
 
 V. McFaul, 23 Mo. 76, - 508 
 
 V. Macdovvell, 8 Ch. D. 
 
 345, .... 306, 793 
 
 V. Nevvhall, 8 T. R. 168, - 385 
 
 V. Phillips, 17 Ind. 406, - 825, 
 
 847, 848 
 Deane v. Hutchinson, 40 N. J. 
 
 Eq. 83, - - - - 1111, 1112 
 Dear, Ex parte, 1 Ch. D. 519, 563 
 Dearborn v. Keith, 5 Cush. 
 
 224, .... 583, 754 
 
 V. Patton, 44 Ala. 584, - 1065 
 
 Deardorf v. Thacher, 78 Mo. 
 
 128 (47 Am. Rep. 95), - 329, 343, 
 344, 345, '361, 363 
 Dearing v. Smith, 4 Ala. 433, 1158 
 De Berkom v. Smith, 1 Esp. 
 
 29, 91 
 
 De Caussey v. Baily, 57 Tex. 
 
 665, - - - 565, 824, 1109 
 Deckard v. Case, 5 Watts, 23 
 
 (30 Am. Dec. 287), 340, 403, 418, 
 
 583, 587 
 Decker v. Howell, 43 Cal. 636, 329, 
 
 370 
 V. Ruckman, 28 N. J. Eq. 
 
 614, 114 
 
 Deckert v. Filbert, 3 Watts & 
 
 S. 454, - - - - 339, 688 
 
 Decreet v. Burt, 7 Cush. 551, 883 
 Deoks V. Stanhope, 14 Sim. 
 
 57, - - - - - 914 
 
 Deere v. Plant, 43 Mo. 60, - 507 
 Deering v. Flanders, 49 N. H. 
 
 225, - - 150, 608, 618, 625 
 Deeter v. Sellers, 103 Ind. 458, 184 
 De Grieil v. Wilson, 30 N. J. 
 
 Eq. 435, - - - - - 1016 
 De Groct v. Darby, 7 Rich. L. 
 
 18, 1024 
 
 Dehority v. Nelson, 56 Ind. 
 
 414, 936 
 
 Degan v. Singer, 41 111. 28, 
 
 1151 
 
 Deitz V. Regnier, 27 Kan. 94, - 323, 
 341, 348, 361, 370, 372, 1153 
 De Jarnette v. McQueen, 31 
 Ala. 230, 453, 453, 453a, 853, 859, 
 
 881 
 Delaney v. Dutcher, 23 Minn. 
 
 373, 
 
 V. Tlmberlake, 23 Minn. 
 
 383, 
 
 53 
 
 43 
 
 75 
 
 764 
 
 127 
 
 Delauney V. Stickland, 2 Stark. 
 
 416, 
 
 De Lazardi v. Hewitt, 7 B. 
 
 Mon. 697, .... 
 De Leon v. Trevino, 49 Tex. 
 
 88, 
 
 Delhasse, Ex parte, 7 Ch. D. 
 
 511, - - - - 17, 29, 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 
 
 Ixv
 
 Dem.] 
 
 TABLE OF CASES. 
 
 [Dio. 
 
 Demott V. Swaira, 5 Stew. & 
 
 Por. 293, . - - - 10D2 
 Denithorne v. Hook, 113 Pa. 
 
 St. 240, 95 
 
 Denman v. Dosson, 19 La. 
 
 Ann. 9, 612 
 
 Dennis v. Ray, 9 Ga. 449, 331, 556 
 Denny v. Cabot, 6 Met. 83, 39, 43 
 
 V. Metcalf, 28 Me. 389, 900, 904 
 
 V. Piiraeau, 35 Mo. 529, - 733 
 
 V. Turner, 3 Mo. App. 53, 733, 
 
 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, 30G 
 
 Dent V. Slough, 40 Ala. 518, - 925 
 
 V. Turpin, 2 J. & H. 139, 69 
 
 Denton v. Erwin, 6 La. Ann. 
 
 317, . - - . 954, 1137 
 
 V. Rodie, 3 Camp. 493, 370, 440, 
 
 441 
 Denver v. Roane, 99 U, S. 355, 589, 
 
 711, 730, 739, 770, 773, 773, 775, 916, 
 
 923 
 De Pusey v. Dupont, 1 Del. Ch. 
 
 83, 283 
 
 Derraani v. Home Mut. Ins. 
 
 Co. 26 La. Ann. 69, - - 273 
 Derby v. Gage, 38 111. 37, 788, 930 
 Desha v. Holland, 12 Ala. 513 
 
 (46 Am. Dec. 261), - - 1023 
 
 V. Smith, 20 Ala. 747, - 781, 
 
 978, 979 
 Despatch Line V. Bellamy Man. 
 
 Co. 13 N. H. 205, - - 418, 420 
 Dessaint v. Elling, 31 Minn. 
 
 3S7, .... 1067, 1073 
 
 De Tastet v. Bordenave, Jac. 
 
 516, 995 
 
 V. Carroll, 1 Stark. 88, 376, 437 
 
 V. Shaw, 1 B. & Aid. 064, 883 
 
 Delhlefs v. Tamsen, 7 Daly, 
 
 354, - . - - 663, 664 
 Detroit v. Robinson, 48 Mich. 
 
 193, .... 376, 408 
 
 Deux V. Jeffries, Croke's Eliz. 
 
 353, 883 
 
 Devall V. Burbridge, 6 W. & S. 
 
 529, 761 
 
 Devaynes v. Noble, 1 Mer. 529 
 
 (affd. in 2 R. & M. 495), 496, 748 
 V. Noble (Baring's Case), 
 
 1 Mer. 611, T - - - 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, 2 Paige, 400, 551, 
 
 556, 739 
 Deveney v. Mahoney, 23 N. J. 
 
 Eq. 247, - - - - 283 
 
 Devin v. Devin, 17 How. Pr. 
 
 514, 141 
 
 V. Harris, 3 G. Greene 
 
 (Iowa), 186, - - - 333, 334 
 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. Howland, 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, 421, - - - 676 
 
 Dickin, Ex parte, L. R.^20 Eq. 
 
 249, - - - "- - 842 
 Dickenson v. Lockyer, 4 Ves. 
 
 36, 487 
 
 Dickerson v. Wheeler, 1 
 
 Humph. 51, - - - - 690 
 Izvi
 
 Die. J 
 
 TABLE OF CASES. 
 
 [Don. 
 
 Dickinson v. Bold, 3 Desaus. 
 
 (S. Ca.) 501, - - - - 575 
 V. Dickinson, 29 Conn. 
 
 600, 974 
 
 V. Dickinson, 25 Gratt. 
 
 331, - - - 610, 612, 021 
 
 V. Granger, 18 Pick. 315, 864 
 
 V. Legare, 1 Desaus. (S. 
 
 Ca.) 537, - - 403, 405, 420 
 
 V. Vulpy, 10 B. & C. 128, 83, 
 
 87, 91, 94, 329, 345 
 Dickson v. Alexander, 7 Ired. 
 
 L. 4, - - - 348, 373 
 
 V. Burke, 28 Tex. 117, - 1057 
 
 V. Collins, 17 Ala. 635, - 1168 
 
 V. Indianapolis Cotton 
 
 Mfg. Co. 03 Ind. 9, - - 709 
 Dickson Crucible Co. v. Gug- 
 genheim, 2 Brewst. 321, - 672 
 Dieckmann v. St. Louis, 9 Mo. 
 
 App. 9, 823 
 
 Digby, Ex parte, 1 Deac. 341, 44 
 Diggs V. Brown, 78 Va. 293, - 281, 
 
 290, 297, 823 
 Dillard v. Scruggs, 36 Ala. 670, 43, 60 
 Dillon V. Brown, 11 Gray, 179, 299, 
 
 417, 418 
 
 V. Kauffman, 58 Tex. 696, 524 
 
 V. McRae, 40 Ga. 107, - 372 
 
 Dils V. Bridge, 23 W. Ya. 20, 42, 43 
 Dilworth v. Mayfield, 36 Miss. 
 
 40, - - - 290, 293, 294, 822 
 Dimon v. Hazard, 32 N. Y. 65, 551, 
 
 560 
 Dimond v. Henderson, 47 Wis. 
 
 172, - - - 788, 918, 983 
 Dinham v. Bradford, L. R. 5 
 
 Ch. App. 519, - 247, 785, 1012 
 D'Invillier'a Estate, 13 Phila. 
 
 362, .... 825, 833 
 
 Dishon V. Schorr, 19 111. 59, - 1080 
 Ditsche v. Becker, 6 Phila. 
 
 170, 43,44 
 
 Ditts V. Lonsdale, 49 Ind. 521, 364 
 Divine v. Mit6hum, 4 B. Mon. 
 
 483 (41 Am. Dec. 241), 281, 290, 
 291, 295, 823, 1111 
 
 Dix V. Mercantile Ins. Co. 23 
 
 111. 273, 273 
 
 V. Otis, 5 Pick. 38, 85, 508, 1140 
 
 Dixon V. Barclay, 23 Ala. 370, 1153 
 
 V. Dixon, 19 Iowa, 513, - 1029 
 
 V. Hammond, 3 B. & Al. 
 
 310, 723 
 
 V. Hood, 7 Mo. 414(38 Am. 
 
 Dec. 461), - -1151,1154,1163 
 Doak V. Swann, 8 Me. 170, - 33 
 Doane v. Adams, 15 La. Ann. 
 
 350, 229 
 
 Dob V. Halsey, 16 Johns. 34 (8 
 
 Am. Dec. 293), 347, 363, 1043, 1048, 
 
 1083 
 Dobell V. Loker, 1 Handy, 574, 1065 
 Dobson V. Chambers, 78 N. Ca. 
 
 334, 1154 
 
 Dodd V. Dreyfus, 17 Hun, 600 ; 
 
 57 How. Pr. 319, - - - 534 
 Doddington v. Hallet, 1 Ves. 
 
 Sr. 497, .... 70, 457 
 Dodds V. Rogers, 68 Ind. 110, 1153, 
 
 1170 
 Dodge V. McKay, 4 Ala. 346, - 414 
 Dodgson, Ex parte, Mont. & 
 
 Mac. 445, - . - - 164 
 Dodson V. Dodson, 6 Heisk. 
 
 (Tenn.) 110, - - - 742, 771 
 Doe ex dem. Colnaghi v. Bluck, 
 
 8 C. & P. 464, - - 286, 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 lU. 560 (48 
 
 Am. Rep. 565), - 750, 825, 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. 
 
 [Dra. 
 
 Donaldson v. Bank of Cape 
 Fear, 1 Dev. (N. Ca.) Eq. 103 
 (18 Am. Dec. 577), 183, 184, 296, 
 
 299, 927 
 
 V. Williams, 1 Cr. & M. 
 
 345, 
 
 335 
 
 Donally v. Ryan, 41 Pa. St. 
 30G, 446 
 
 Donellan v. Hardy, 57 Ind. 
 
 393, ... - 1102, 1111 
 Doiielson v. Posey, 13 Ala. 
 
 753, 181 
 
 Doner v, Stauffer, 1 Pa. (Pen. 
 
 & W.) 198 (31 Am. Dec. 370), 190, 
 824, 1111, 1113 
 Doniphan v. Gill, 1 B. Mon. 
 
 199, 420, 535 
 
 Donley v. Bank, 40 Oh. St. 47, 454, 
 
 655 
 
 V. Hall, 5 Bush, 549, - 86 
 
 V. Hall, 40 Oh. St. 47, - 655 
 
 Donnell v. Harshe, 67 Mo. 170, 29, 
 
 37, 61 
 V. Jones, 13 Ala. 490 (18 
 
 Am. Dec. 59), . - 1031, 1034 
 V. P. & O. R. R. 76 Me. 
 
 33, 1081 
 
 Donoho V. Fish, 58 Tex. 164, - 338 
 Doro V. Wilkinson, 2 Stark. 
 
 287, 403 
 
 Doremus v. McCormick, 7 Gill 
 
 (Md.), 49, - 831, 382, 465, 480 
 Dorsey v. Dashiell, 1 Md. 198, 630. 
 
 638 
 
 V. Wayman, 6 Gill, 59,' - 489 
 
 Doty V. Bates, 11 Johns. 544, 197, 
 
 343, 846, 361 
 Doubleday v. Muskett, 7 Bing. 
 
 110, 74, 89 
 
 Dougal V. Cowles, 5 Day, 511, 437, 
 
 441 
 Dougherty v. Smith, 4 Met. 
 
 (Ky.), 279, .... 1024 
 
 V. Creary, 30 Cal. 290, 163, 433 
 
 V. Van Nostrand, 1 Hoff. 
 
 Ch. 68, . - 658, 7T0, 785, 974 
 Douglas V. Patrick, 3 T. R. 683, 406 
 
 Ixviii 
 
 Douglas V. United States, 14 
 
 Ct. of Claims, 1, - - - 582 
 
 V. Winslow, 20 Me. 89, - 180, 
 
 1105, 1114 
 Douglass V. Brown, 37 Tex. 
 
 528, 905 
 
 Bounce v. Parsons, 45 N. Y. 
 
 180, .... 446, 477 
 
 Doupe V. Stewart, 13 Grant's 
 
 Ch. (Up. Can.) 637, 578, 995, 997, 
 
 1003 
 Douthitt V. Stinson, 73 Mo. 199, 296 
 Dow V. Sayward, 13 N. H. 271 
 
 (affd. 14 id. 9), - 67, 323, 1113 
 
 V. Sayward, 14 N. H. 9, 67, 
 
 180, 1106, 1122 
 
 V. Smith, 8 Ga. 551, 350, 1121 
 
 Dowell V. Mitchell, 105 U. S. 
 
 430, 749 
 
 Dowling V. Clarke, 13 R. I. 134, 849 
 Downer v. Harrison, 2 Gratt. 
 
 250, 1065 
 
 Downing, Re, 1 Dili 33; 3 
 
 Bankr. Reg. 748, - . 560, 882 
 
 V. Linville, 3 Bush, 472, 412, 
 
 493 
 Downs V. Collins, 6 Hare, 418, 51, 
 
 249 
 Dowzelot V. Rawlings, 58 Mo. 
 
 75, - 609, 626, 693, 700, 1151 
 
 Doyle V. Bailey, 75 III. 418, . 78 
 Dozier v. Edwards, 3 Litt. (Ky.) 
 
 67, 930 
 
 Drake, Ex parte, cited in 1 
 
 Atk. 225, .... 845 
 V. Blount, 2 Dev. (N. Ca.) 
 
 Eq. 353, - - . 717, 750 
 
 V. Brander, 8 Tex. 351, - 1121 
 
 V. Elwyn, 1 Caines, 184 
 
 (overruled in part in 1 N. 
 
 Y. 242), - - 191, 201, 8G1, 1135 
 
 — V. Moore, 66 Iowa, 58, . 1131 
 
 — V. Ramey, 3 Rich. L. (S. 
 
 Ca.) 37, ... 43, ic8 
 
 — V. Rogers, 6 Mo. 317, - 338 
 
 — V. Taylor, 6 Blatch. 14, . 453a, 
 
 641
 
 Dra.] 
 
 TABLE OF CASEfe. 
 
 [Dun. 
 
 Drake v. Thyng, 37 Ark. 228, - 403, 
 
 401 
 
 V. Williams, 18 Kan. 98, 629 
 
 Draper v. Bissell, 3 McLean, 
 
 275, .... G94, 698 
 Drcner v. ^tna Ins. Co. 18 
 
 Mo. 128, . ... 273 
 
 Drenncn v. London Assur. 
 
 Corp. 20 Fed. Rep. 657 (re- 
 versed in part, 113 U. S. 51. 
 
 See Loudon Assur. Corp. v. 
 
 Drenuen, 116 U. S. 461), 81, 271, 
 
 272 
 Dresser v. Wood, 15 Kan. 844, 1085 
 Drew V. Beard, 107 Mass. 64, 793, 
 
 936, 988 
 V. Drew, 2 Ves. Sc Bea. 
 
 159, 966 
 
 V. Person, 22 Wis. 651, 852, 854 
 
 Driggs V. Morely, 2 Pin. (Wis.) 
 
 403; 2Chand. 59, - - - 927 
 Driver v. Burton, 17 Q. B. 989, 438, 
 
 1017 
 Drumright v. Philpot, 16 Ga. 
 
 424 (60 Am. Dec. 738), 331,402, 
 414, 416, 418, 429 
 Drury v. Roberts, 2 Md. Ch. 
 
 157, ... 993, 997, 999 
 Dry v. Boswell, 1 Camp. 329, 16, 59 
 v. Davy, 10 A. & E. 30; 2 
 
 Perry & Dav. 219, - - 649 
 Dryer v. Sander, 48 Mo. 400, 201, 
 
 205, 439 
 Dubois' Appeal, 38 Pa. St. 231, 418 
 Duborrow's Appeal, 84 Pa. St. 
 
 404, - - - 928, nil, 1112 
 Du Bree v. Albert, 100 Pa. St. 
 
 483, 289 
 
 Dudley v. Little, 2 Oh. St. 504, 113 
 
 V. Littlefield, 21 Me. 418, 194, 
 
 279, 353, 367 
 Duff V. East India Co. 15 Ves. 
 
 198, - - - 381, 681, 683 
 
 V. Maguire, 107 Mass. 87, 770, 
 
 776, 854 
 Duffield V. Brainerd, 45 Conn. 
 
 424, - - - - 218, 580 
 
 Duffill V. Goodwin, 23 Grant's 
 
 Ch. Up. Can. 431, - - 891 
 
 Duffy V. Gray, 53 Mo. 523, - 1031, 
 
 1033 
 
 V. Shockey, 11 Ind. 71, - 677 
 
 Dulaney v. Rogers, 50 Md. 
 
 524, 803 
 
 Dulles V. De Forest, 19 Conn. 
 
 190, 651 
 
 Dumont v. Ruepprecht, 38 Ala, 
 
 175, 230, 255, 591, 594, 597, 775 
 
 Dunbar v. Bullard, 2 La. Ann. 
 
 810, 301 
 
 v. Garrity, 58 N. H. 575, 496 
 
 Duncan, Re, 10 Daly, 95, - 835 
 
 v. Clark, 2 Rich. L. 587, - 352 
 
 v. Lewis, 1 Duv. (Ky.) 183, 446, 
 
 507, 508 
 
 V. Lowndes, 3 Camp. 478, 349, 
 
 364, 365 
 
 V. Rawls, 16 Tex. 478, - 963 
 
 V. Tombeckbee Bank, 4 
 
 Porter (Ala.), 181, - 1091,1093 
 Duncklee v. Greenfield Steam 
 
 MiU Co. 3 Foster, 245, 883, 394 
 
 Dunham v. Gillis, 8 Mass. 463, 863, 
 
 872, 873. 889 
 
 V. Hanna, 18 Ind. 270, 5G0, 834 
 
 V. Murdock, 2 Wend. 553, 1114 
 
 -:: V. Presby, 120 Mass. 285, 114, 
 
 119, 121, 128 
 
 V. Rogers, 1 Barr, 255, 43, 45 
 
 Dunkerson, Re, 4 Biss. 277, - 835 
 Dunkerson, Re, 4 Biss. 323; 12 
 
 Bankr. Reg. 391, - - - 825 
 Dunkle, Re, 7 Bankr. Reg. 107, 367 
 Dunklin v. Kimball, 50 Ala. 
 
 251, - - - 338, 839, 340 
 Dunlap V. Limes, 49 Iowa, 
 
 177, .... 483, 693 
 
 V. McNeil, 35 Ind. 316, - 604 
 
 V. Odeua, 1 Rich. (S. Ca.) 
 
 Eq. 273, - - - - 229 
 
 V. Watson, 124 Mass. 305, 770, 
 
 771, 788 
 
 Dunlop V. Richards, 2 E. D. 
 
 Smith, 181, - - - - 307 
 Ixix
 
 Dun.] 
 
 TABLE OF CASES. 
 
 [Ear. 
 
 Dunman v. Coleman, 59 Tex. 
 
 199, . - . . 725, 1029 
 Dunn V. McNaught, 38 Ga. 
 
 179, .... 595, 993 
 
 Dunne v. O'Reilly, 11 Up. Can. 
 
 C. P. 404, .... 110 
 Dunnell v. Henderson, 23 N. 
 
 J. Eq. 174, 226, 254. 7G8, 780, 978 
 Dunnica v. Clinkscales, 73 Mo. 
 
 500, 452 
 
 Dunns v. Jones, 4 Dev. & 
 
 Bat. 154, .... 1057 
 Dun ton v. Brown, 31 Mich. 
 
 182, .... 143, 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, 
 
 2 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, 405, 
 
 480 
 Durbin v. Barber, 14 Oh. 311, 577, 
 589, 597, 761, 797, 1007 
 Durden v. Cleveland, 4 Ala. 
 
 225, 868 
 
 Durell V. Wendell, 8 N. H. 369, 385 
 Duress v. Horneffer, 15 Wis. 
 
 (195), 215 (see H. v. D. 13 id. 
 
 603), 137 
 
 Durgin v. Coolidge, 3 Allen, 
 
 554, 338 
 
 V. Somers, 117 Mass. 55, 384, 
 
 1158 
 Durham v. Hartlett, 32 Ga. 22, 630, 
 
 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, 69 
 
 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. Scovil, 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. 503, - - - 174, 1059 
 Dyer v. Clark, 5 Met. 562 (39 
 
 Am. Dec. 697), 281, 285, 290, 293, 
 294, 300, 822, 1114 
 
 V. Sutherland, 75 111. 586, 383, 
 
 1035 
 Dyke v. Brewer, 3 Car. & K. 
 
 833, 508 
 
 E. 
 
 Eads V. Mason, 16 111. App. 
 545, 749 
 
 Eager v. Crawford, 76 N. Y. 
 
 97, - - - - 23, 47, 1137 
 
 V. Price, 3 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, 957, 
 
 960 
 
 V. Shu maker, 12 Tex. 51, 305 
 
 Earbee v. Ware, 9 Porter, 295, 1093 
 Earl V. Hurd, 5 Blackf. 248, - 1155 
 Early v. Burt, 68 Iowa, 716, - 505 
 
 Ixx
 
 Ear,] 
 
 TABLE OF CASES. 
 
 [Ell. 
 
 Early v. Reed, 6 Hill, 12, 
 
 868 Edwards v. Hughes, 20 Mich. 
 
 Earon v. Mackey, 106 Pa. St. 
 
 452, - - 510, 512, 513, G96 
 
 Eason v. Cherry, 6 Jones, Eq. 
 
 201, 544 
 
 Easter v. Farmers' Nat'l B'k, 
 
 57 111. 215, - - 625, 694, 698 
 Eastman v. Clark. 53 N. H. 276 
 
 (16 Am. Rep. 192), - 16, 23, 59 
 V. Cooper, 15 Pick. 276 (26 
 
 Am. Dec. 600), - - 353, 362 
 Easton v. Couitwright, 84 Mo. 
 
 27, - 294, 300, 726, 733, 734 
 
 Easterly * Bassignano, 20 Cal. 
 
 489, .... 1168 
 
 Eaton V. Able, 91 Ind. 107, - 832 
 
 V. Taylor, 10 Mass. 54, 429, 694, 
 
 698 
 
 V. Whitcomb, 17 Vt. 641, 321, 
 
 412, 427, 1025 
 Eaton, Cole & Burnham Co. v. 
 
 Avery, 83 N. Y. 31, - - 1155 
 Ebbert's Appeal, 70 Pa. St. 79, 2S9 
 Ebert v. Ebert, 5 Md. 353, - 234 
 Eckerly v. Alcorn, 62 Miss. 
 
 228, 616 
 
 Eckhardt v. Wilson, 8 T. R. 
 
 140, .... 753, 1026 
 Eddie v. Davidson, Dougl. 650, 1100 
 Eden v. Lingeufelter, 39 Ind. 
 
 19, 978 
 
 Edens v. Williams, 36 111. 252, 634, 
 
 893 
 Edgar v. Cook, 4 Ala. 588, 51, 603 
 
 V. Donnally, 2 Munf. 387, 405 
 
 Edgell V. Macqueen, 8 Mo. 
 
 App. 71, .... 1153 
 
 Edgerly v. Gardner, 9 Neb. 1.30, 56, 76 
 Edmonds, Ex parte, 4 De G., 
 
 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, 2 Mackey 
 
 (Dist. Col.), 43, - - 564, 566 
 
 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, 5S9 
 
 V. Tracy, 62 Pa. St. 374, 29, 43, 
 
 1151, 1154 
 
 Egberts v. Wood, 3 Paige, 517, 580, 
 
 688, 722, 726, 732, 739 
 
 Ege v. Kyle, 2 Watts, 221, - 10G7 
 
 Eggleston v. Boardman, 37 
 
 Mch. 17, 
 V. Wagner, 46 Mich. 610, 
 
 437 
 
 549 
 
 1151 
 
 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, .... 
 Einstmanv. Black, 14111. App. 
 
 381, 
 
 Elder's Appeal, 39 Mich. 474, 
 Elder v. Hood, 38 111. 533, 
 Eld red 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, 
 
 EUicott V. Nichols, 7 Gill, 85, 
 V. Smith, 2 Cranch, C. C. 
 
 75 
 
 1114 
 
 43 
 
 317 
 850 
 868 
 743 
 
 876 
 
 569 
 
 107, 
 
 609 
 703 
 
 543, 
 
 1125 
 
 Ellinger's Appeal, 7 Atl. Rep. 
 
 180; 114 Pa. St. 505, - 377, 452 
 EUiot V. Davis, 3 B.&P. 338, 315, 
 
 346, 349, 421 
 
 v. Stevens, 38 N. H. 311, 105, 
 
 322, 446, 566, 567, 840, 1052, 1053 
 
 Ixxi
 
 Ell.] 
 
 TABLE OF CASES. 
 
 [ESH. 
 
 Elliott V. Deason, 64 Ga. 63, 851, 878 
 
 V. Dudley, 19 Barb. 326, - 349 
 
 V. Dycke, 78 Ala. 130, 296, 299 
 
 V. Hoi brook, 33 Ala. 659, 377, 
 
 380, 385 
 Ellis, Ex parte, 2 GI. & J. 312. 843 
 
 V. Bronson, 40 III. 455, 618, 628 
 
 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. Jamesoa, 17 Me. 235, - 1160 
 
 V. Lauve, 4 La. Ann. 245, 1168 
 
 Ells V. Bone, 71 Ga. 466, - - 537 
 EUston V. Deacon, L. R. 2 C. P. 
 
 20, 347 
 
 Ellswangerv. Coleman, 7 Mo. 
 
 App. 582, .... 527 
 Ellsworth V. Pomeroy, 26 Ind. 
 
 158, .... 41, 43 
 V. Tartt, 26 Ala. 733 (63 
 
 Am. Dec. 749), . - 66, 134 
 Elton, Ex parte, 3 Ves. Jr. 238, 825, 
 
 830 
 Elverson v. Leeds, 97 Ind. 336 
 
 (49 Am. Rep. 458), . 107, 611 
 Ehvooil V. Western Un. Tel. 
 
 Co. 45 N. Y. 545, - . 878, 881 
 Ely V. Hair, 16 B. Mon. 230, - 339, 
 
 824 
 
 V. Horine, 5 Dana, 398, 715, 716 
 
 Emanuel v. Bird, 19 Ala. 596 
 
 (54 Am. Dec. 200), 750, 825, 828, 
 
 833 
 
 V. Draughn, 14 Ala. 303, 28 
 
 V. Mariin, 12 Ala. 233, - 453 
 
 Emerson v. Baylies, 19 Pick. 
 
 55, - - . - 383, 1079, 1083 
 
 V. Duraud, 64 Wis. Ill, - 482, 
 
 483, 777, 785, 940 
 
 V. Harmon, 14 Me. 271, - 355, 
 
 370. 372 
 V. Knower, 8 Pick. 63, 383, 383 
 
 V. Parsons, 46 N. Y. 560 
 
 (all g 2 Sweeny, 417), - 551, 575 
 
 — — V. Providence Hat Mfg. 
 Co. 12 Mass. 237, ... 334 
 
 Emerson v. Senter, 118 U. S. 3, 726, 
 
 732 
 Emery v. Canal Nat'l Bank, 7 
 
 Bankr. Reg. 217; 3 Cliff. 
 
 507, 341 
 
 V. Parrott, 107 Mass. 95, 807, 
 
 896 
 
 V. Wilson, 79 N. Y. 78, - 885 
 
 Euily, Ex parte, 1 Rose, 64, - 266 
 
 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, - 211, 213, 988, 1010, 1013 
 
 V. Downs, 6 Beav. 269, . 659 
 
 V. England, 1 Baxter, 108, 45 
 
 Engle V. Bucher, 6 Oh. St. 
 
 295, 589 
 
 Englis V. Furniss, 4 E. D. 
 
 Smith, 587; 3 Abb. Pr. 333, 900, 
 
 905 
 English & American Bank, Ex 
 
 parte, L. R. 4 Ch. App. 49, 843 
 English & Irish Cliurcb, etc. 
 
 Assur. Soc, In re, 1 Hen. & 
 
 M. 85, 19 
 
 Enix V. Hayes, 48 Iowa, 86, . 1023 
 Eniiis V. Williams, 30 Ga. 691, 613 
 Ensign v. Briggs, 6 Gray, 339, 291. 
 
 453, 453 
 
 V. Wands, 1 Johns. Cas. 
 
 171, 333 
 
 Ensmingerv. Marvin, 5 Blackf. 
 
 210, .... 361, 1008 
 
 Ellsworth V. Curd, 08 Mo. 2S3, 908 
 Eppinger v. Canepa, 20 Fla. 
 
 263, 1171 
 
 Erwin's Appeal, 39 Pa. St. 
 
 535, 293 
 
 Erwin v. Downs, 15 N. Y. 575, 897 
 Eshleman v. Harnish, 76 Pa. 
 
 St. 97, - - - - 39, 47, 48 
 Ixxii
 
 Esp.] 
 
 TABLE OF CASES. 
 
 [Fai. 
 
 Esposito V. Bowden, 7 EI. & 
 
 BI. 763, 583 
 
 Espy V. Comer, 76 Ala. 501, 281, 
 
 297, 703, 706 
 Ess, lu re, 3 Biss. 301, - - 150 
 Ess ^x V. Essex, 20 Beav. 442, 216, 302 
 Estabrook v, Messersmith, 18 
 
 Wis, 545, - - - 1037, 1038 
 
 V. Smith, 6 Gray, 570, - 194 
 
 Estes, Re, 3 Fed. Rep. 134; 6 
 
 Sawy. 459, - - - - 825 
 
 V. Whipple, 12 Vt. 373, - 855 
 
 Etcliemende v. Stearns, 44Cal. 
 
 583, 1151 
 
 Etheridge v. Binney, 9 Pick. 
 
 273, .... 370, 443 
 Evans v. Bidleman, 3 Cal. 435, 395, 
 
 481 
 
 V. Bradford, 35 Ind. 527, 175 
 
 V.Bryan, 95 N. Ca. 174, 821, 
 
 917, 1132 
 
 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, -■ - - . - 7S8 
 
 V. Drummond, 4 Esp. 89, 150, 
 
 523, 528, 608, 600 
 
 V. Dunn, 26 Oh. St. 439, - 970 
 
 V. Evans, 9 Paige, 178, - 994 
 
 V. Gibson, 29 Mo. 223, 311, 790 
 
 V. Hanson, 42 111. 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, - 073 
 
 — - V. Montgomery, 50 Iowa, 
 
 325, - - - 595, 909, 984 
 
 V. Richardson, 3 Her. 469, 110, 
 
 119 
 
 V. Silverlock, 1 Peake, 31, 1024 
 
 v. Wells, 22 Wend. 324 ; 
 
 Lockw. Rev. Cas. 390 (rev. 
 
 W. v. E. 20 'id. 251), - - 415 
 
 Evans v. Winston, 74 Ala. 349, 446, 
 
 509, 825 
 
 Everet v. Williams, 2 Pothier 
 on Obi. 3; Europ. Mag. 1787, 
 vol. 2, p. 360, - - 1 19, 127 
 
 Everett v. Backhouse, 10 Vea. 
 
 100, 834 
 
 V. Coe, 5 Den. 180, - - 47 
 
 Everhart's Appeal, 106 Pa. St. 
 
 349, 301 
 
 Everit v. Strong, 5 Hill, 163; 
 
 affd. 7 id. 585, - - 401, 418 
 Everitt v. Chapman, 6 Conn. 
 
 347, - 32, 58, 80, 323. 445, 1135 
 
 Everughim v. Ensworth, 7 
 
 Wend. 336, - - 383, 427, 1044 
 Everly v. Durborrow, 8 Phila. 
 
 93 ; 1 Pa. Leg. Gaz. 127, - 816 
 Eversou v. Gehrman, 10 How. 
 
 Pr. 301 ; 1 Abb. Pr. 167, 377, 380 
 Ewing V. Ewing, L. R. 8 App. 
 
 Cas. 822, . ... 245 
 
 V. Trippe, 73 Ga. 776, 607, 608 
 
 Exchange Bank v. Ford, 7 Col- 
 orado, 314, - - - - 1049 
 
 V. Tracy, 77 Mo. 594, 598, 599 
 
 Ex parte. See under the names. 
 Eyre, Ex parte, 1 Ph. 227 (aff. 
 
 3 M. D. D. 12), - - - 475 
 V. Beebe, 28 How. Pr. 333, 569 
 
 F. 
 
 Fabian v. Callahan, 56 Cal. 159, 139 
 Fagan v. Long. 30 Mo. 222, 507, 509 
 Fagg V. Hambel, 21 Iowa, 140, 385 
 Faikney v. Reynous, 4 Burr. ■ 
 
 2009, ... - 113, 127 
 Fail V. McArthur, 31 Ala. 26, 331 
 
 V. McRee, 36 Ala. 61, - 63 
 
 Fain v. Jones, 3 Head, 303, - 824 
 Fairbank v. Leary, 40 Wis. 637, 1 12. 
 
 117, 119 
 
 V. Newton, 50 Wis. 628, - 113 
 
 Fairbanks v. Kittridge, 24 Vt. 
 
 9, m 
 
 Ixxiii
 
 Fai] 
 
 TABLE OF CASES. 
 
 [Fas. 
 
 Fairchild v. Amsbaugh, 22 Cal. 
 
 572, 1167 
 
 V. Fairchild, 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. Siocum, 19 Wend. 329 
 
 (affd. 7 Hill, 292), - - 67 
 
 V. Valentine, 7 Robt. (N. 
 
 Y.) 5G4, - - - - 939 
 
 Fairhohn v. Marjoribanks, 3 
 
 Ross. Lead. Cas. 697, - 164, 168 
 Fairlee v. Blooraingdale, 14 
 
 Abb. New Cas. 341; 67 How. 
 
 Pr. 292, - - - - 139 
 
 Fairtborne 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, 
 841, 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, 30Ind. 436, 694 
 Fanclier 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. Wells, 45 Iowa, 491, - 184 
 
 Farley v. Lovell, 103 Mass. 387, 1037 
 
 V. Moog, 79 Ala. 148, 715, 741, 
 
 74G, 756, 927, 928. 1111 
 Farmer, Re, 18. Bankr. Reg. 
 
 207, 301 
 
 V. Samuel, 4 Litt. (Ky. ) 
 
 18T(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, 624, 1147, 
 
 1148 
 
 Farmers' & Mer. Bank v. 
 
 Lonergan, 21 Mo. 46, - - 399 
 
 Farmers' & Traders' Sav. Inst. 
 V. Garesche, 12 Mo. App. 
 584, 734 
 
 Farnam v. Brooks, 9 Pick. 212, 958, 
 
 962 
 
 Farnswortb v. Boardman, 131 
 Mass. 115, - . 629, 636, 879 
 
 V. Whitney, 74 Me. 370, 629, 
 
 632 
 
 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. 522, . 181 
 
 V. Pearce, 3 Madd. 74, 665, C68, 
 
 807 
 
 V. Wheeler, 20 N. H. 569, 3, 
 
 445, 1150 
 Farrand v. Gleason, 56 Vt. 
 
 633, - - - .29, 59, 68 
 
 Farrarv. Beswick, 1 Moo. & R. 
 
 527, 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. - - - . 636 
 
 Farwell v. Davis, 66 Barb. 73, 151, 
 
 724, 1024, 1052. 
 
 V. Metcalf, 63 N. H. 
 
 276, - - . ■ . - 566 
 
 Ixxiv
 
 FAK.J 
 
 TABLE OF CASES. 
 
 [Fie. 
 
 Farwell v. Tyler, 5 Iowa, 535, - 865 
 Faulds V. Yates, 57 111. 416, - 307, 
 
 433, 433 
 Faulkner v. Brigel, 101 Ind. 
 
 839, - - 1019, 1117, 1131 
 
 V. Hill, 104 Mass. 188, - 534 
 
 V. Whitaker, 15 N. J. L. 
 
 438, - 173, 1117, 1119, 1151 
 
 Faust V. Burgevin, 23 Ark. 170, 636, 
 
 879 
 Faver v. Briggs, 18 Ala. 478, - 1091 
 Fawcett v, Odborn, 33 111. 411, 29, 
 
 36, 39, 43, 257 
 V. Whitehouse, 1 Russ. & 
 
 M. 133, - - - 307, 913, 937 
 Fay V. Davidson, 13 Minn. 533, 66 
 V. Duggan, 123 Mass. 243 
 
 (21 Am. Law Reg. N. S. 799), 1029, 
 
 1073, 1106 
 
 V. Finloy, 14 Phila. 206, - 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. 233, - 537 
 Featherslonliaugh v. Fenwick, 
 
 17 Ves. 298, - 218, 305, 571, 573, 
 
 794, 974 
 
 V. Turner, 25 Beav. 382, 243, 
 
 778, 797, 803 
 Feder v. Epstein, 69 Cal. 456, 10S5 
 Feigley v. Whitaker, 23 Oh. 
 
 St. 606 (10 Am. Rep. 778), - 701 
 Felder v. Wall, 26 Miss. 595, - 930, 
 
 938 
 Felichy v. Hamilton, 1 "Wash. 
 
 C. C. 491, - - - - 26 
 Fellows V. Greenleaf, 43 N. H. 
 
 431, .... 825, 937 
 
 V. Wyman, 33 N. H. 351, 690, 
 
 695, 1037, 1044 
 Feltonv. Deall, 23Vt. 170, - 45 
 V. Reid, 7 Jones (N. Ca.), 
 
 L. 269, - - - 713, 714, 733 
 Fenn v. Bolles, 7 Abb. Pr. 303, 673 
 V. Timpson, 4 E. D. Smith, 
 
 276, 1154 
 
 Fensler v. Prather, 43 Ind. 119, 534 
 
 Fenton v. Block, 10 Mo. App. 
 536, .... 1039, 1045 
 
 V. Folger, 21 Wend. 676, 1114 
 
 Fereday v. Horderu, Jac. 141, 16, 
 
 47,56 
 
 V. Wjghtwick, 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. Fylle, 8 CI. & Fin. 
 
 121, - - - - - 330 
 
 V. Hass, Phil. (N. Ca.) Eq. 
 
 113, 297 
 
 V. King, 5 La. Ann. 642, 191 
 
 V. Shepherd, 1 Sneed, 254, 317, 
 
 428 
 
 V. Thacher, 79 Mo. 511, - 347, 
 
 349 
 
 V. Wood, 23 Tex. 177, - 1073 
 
 V. Wright, 61 Pa. St. 258, 849 
 
 Fern v. Gushing, 4 Gushing, 
 
 357, - - - 180, 755, 1122 
 
 Ferrero v. Buhlmeyer, 34 How. 
 
 Pr. 33, - - - - 577, 585 
 Ferris v. Thaw, 5 Mo. App. 
 
 279, .... 75, 191 
 Person v. Monroe, 1 Foster (21 
 
 N. H.), 462, - 446, 566, 567, 824 
 Fessler v. Hickernell, 83 Pa. 
 
 St. 150, 853 
 
 Fetz V. Clark, 7 Minn. 217 (over- 
 ruled), - - - . 1074, 1094 
 Feurt V. Brown, 23 Mo. App. 
 
 333, - - - 328, 341, 866 
 
 Fichthorn v. Boyer, 5 Watts, 
 
 159, 
 
 Pick V. Mulholland, 48 Wis. 
 
 413, 
 
 Fickett V. Swift, 41 Me. 65, - 
 Fidler v. Delavan, 20 Wend. 
 
 57, 
 
 Field V. Carr, 5 Bing. 13, 
 V. Chapman, 15 Abb. Pr. 
 
 434, 559 
 
 V. Cooks, 16 La. Ann. 153, 5 
 
 416 
 
 1151 
 331 
 
 1033 
 489 
 
 Ixxv
 
 Vie.] 
 
 TABLE OF CASES. 
 
 [Fit. 
 
 Field V. IMalone, 103 Ind. 251, - 1124 First Nat'l Bank v. Hackett, 61 
 
 V. Tenney, 47 N. H. 513, 
 
 1136, 
 1140 
 
 Fielden v, Lahens, 2 Abb. 
 
 App. Dec. Ill; 9 Bosw. 430, 
 Fifield V. Adams, 3 Iowa, 487, 
 Figgius V. Ward, 2 Cr. & M. 
 
 424, - - - - - 
 Filley v. McHenry, 71 Mo. 417, 
 V. Phelps, 18 Conn. 294, - 
 
 184, 453, 535, 556, 558, 719, 745, 747, 
 
 750, 848, 1114 
 Fillyau v. Laverty, 3 Fla. 72, - 749, 
 
 750 
 Finch, Ex parte, 1 D. & Ch. 
 
 274, 
 
 V. De Forest, 16 Conn. 
 
 349 
 506 
 
 397 
 1151 
 180, 
 
 754 
 
 445, 
 
 194 
 
 Finckle v. Stacey, Sel. Cas. in 
 Ch. 9, 59 
 
 Findlay, Ex parte, 17 Ch. D. 
 
 334, 835 
 
 Fink V. Patterson, 21 Fed. Rep. 
 
 603, ..... 929 
 Finley v. Fay, 17 Hun, 67 (re- ' 
 versed as Finley v. Finley, 
 96 N. Y. 663), - - - 629 
 
 V. Finley, 96 N. Y. 6G3 
 
 (rev. s. C. as Finley v. Fay, 
 
 7 Hun, 67), .... 639 
 
 V. Lycoming Mat. Ins. 
 
 Co. SO Pa. St. 311, - - 273 
 Finney v. Allen, 7 Mo. 416, - 1094 
 
 V. Turner, 10 Mo. 207, - 850 
 
 First Nat'l Bank, Ex parte, 70 
 Me. 309, - - - 453, 453a 
 
 V. Almy, 117 Mass. 476, - 4 
 
 V. Breese, 39 Iowa, 640, - 364 
 
 V. Carpenter, 34 Iowa, 433, 331, 
 
 349, 362, 399 
 
 V. Carpenter, 41 Iowa, 518, 349 
 
 V. Ells, 68 Ga. 192, - - 695 
 
 V. Bissell, 4 Fed. Rep. 694; 
 
 2 McCrary, 73 (afifd. as Bis- 
 sell V. Foss, 114 U. S. 252), - 310 
 
 V. Freeman, 47 Mich, 408, 401 
 
 V. Goflf, 31 Wis. 77, 72, 73, 458 
 
 Wis. 335, - - - 338, 1133 
 
 V. Hall, 101 U. S. 43, 054, 710 
 
 V. M6)-gan, 73 N. Y. 593 
 
 (affd. 6 Hun, 346), 853, 361, 529, 
 
 538, 747, 750 
 
 V. Snyder, 10 Mo. App. 211, 329 
 
 Fischer v. Raab, 57 How. Pr. 
 
 87, 594 
 
 Fish V. Dana, 10 Mass. 46, 639, 640 
 
 V. Gates, 133 Mass. 441, - 1018 
 
 V. Lightner, 44 Mo. 263, - 264 
 
 V. Miller, 5 Paige, 26, - 338 
 
 Fisher v. Bowles, 20 111. 398, - 109 
 
 V. Minot, 10 Gray, 260, - 547 
 
 V. Murray, 1 E. D. Smith, 
 
 341, 838 
 
 V. Pender, 7 Jones, L. 483, 416, 
 
 421 
 V. Stovall (Tenn.), 3 S. W. 
 
 Rep. 567, .... 930 
 
 V. Sweet, 67 Cal. 233, 33, 849 
 
 V. Syfers, 109 Ind. 514, 565, 568 
 
 V. Tayler, 3 Hare, 218, - 371 
 
 V. Tifft, 127 Mass. 313, 532, 534 
 
 V. Tifft, 12 R. L 56 (S. C. 
 
 with note, 18 
 Reg. N. S. 9), 
 
 Am. Law 
 
 532 
 
 V. Tucker, 1 McCord (S. 
 
 Ca.), Ch. 169, 414, C90, 701, 703, 
 
 709, 747, 750 
 Fisk V. Copeland, 1 Overton 
 
 (Tenn.), 383, .... 831 
 
 V. Gould, 13 Fed. Rep. 
 
 373, 939 
 
 v. Herrick, 6 Mass. 271, - 1103 
 
 Fiske V. Hills, 11 Biss. 294, 935, 929 
 Fitch V. Hall, 25 Barb, 13, - 43 
 
 V. Harrington, 13 Gray, 
 
 408 (8 Am. Law Reg. N. S. 
 
 688), - - - 91, 93, 164, 168 
 
 V. McCrimmon, 30 Up. 
 
 Can. C. P. 183, - 491, 494, 497 
 
 Fitchter v. Fitchter, 11 N. J. 
 
 Eq. 71, - - 990, 993, 995, 1003 
 Fithian v. Jones, 13 Phila. 
 
 201, 794 
 
 Ixxvi
 
 Fit.] 
 
 TABLE OF CASES. 
 
 [For. 
 
 Fitzgerald v. Boehm, 7 J. B. 
 
 Moore, 333, - - - 74G 
 
 V. Cross, 20 N. J. Eq. 90, 553, 
 
 541 
 V. Grimmell, 64 Iowa, 
 
 261, - - 173, 1059, 1061, 1063 
 Fitzpatrick v. Flannagan, 106 
 
 U. S. 648, 559, 560, 737, 738, 731, 
 
 794, 824, 929 
 Hack V. Charron, 29 Md. 311, 503, 
 
 500 
 Flagg V. Stowe, 85 111. 164, 5, 6, 181, 
 
 257 
 
 V. Upbam, 10 Pick. 147, - 347. 
 
 365, 367 
 Flammer v. Green, 47 N. Y. 
 
 Superior Ct. 538, - - - 591 
 Flanagan v. Alexander, 50 Mo. 
 
 50, 410 
 
 V. Shuck, 83 Ky. 617, 283, 291, 
 
 298 
 Flannagan v. Maddin, 81 N. 
 
 Y. 623, 985 
 
 Flannery v, Anderson, 4 Nev. 
 
 437, ' - - - 377, 379, 1086 
 Fleming v. Billings, 9 Rich. Eq. 
 
 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, 362 
 Flemyug v. Hector, 2 M. & W. 
 
 173, 75 
 
 Fleshman v. Collier, 47 Ga. 
 
 253, - - 78, 1154, 1159, 1160 
 Fletcher V. Anderson, 11 Iowa, 
 
 228, 691 
 
 V. Hawkins, 2 R. I. 330, - 239 
 
 V. Ingram, 46 Wis. 191, 306, 463 
 
 V. Pollard, 2 Hen. & M. 
 
 (Va.) 544, - - - 978, 982 
 
 V. Reed, 131 Mass. 312, - 571, 
 
 785, 917, 918 
 
 Fletcher v.Yan Dusen, 52 Iowa, 
 
 448, - 741, 1000, 1001, 1004 
 
 V. Vanzant, 1 Mo. 196, - 431 
 
 Flint V. Marble Co. 53 Vt. 009, 39 
 Flintoff V. Dickson, 10 Up. 
 
 Can. Q. B. 438, - - - 1114 
 Flockton V. Bunning, L. R. 8 
 
 Ch. A pp. 223, - - - 484 
 Flood, Ex parte, 23 New Bruns- 
 wick, 86, - - - - 468 
 Florida Territory v. Redding, 
 
 1 Fla. 279, - ... 715 
 Flournoy v. ■Williams, 68 Ga. 
 
 707, 1151 
 
 Flowers v. Helm, 29 Mo. 324, 700 
 Floyd V. Miller, 61 Ind. 224, 694, 
 
 1159 
 Flynn v. Fish, 7 Lansing, 117, 276 
 Foerster v. Kirkpatrick, 2 
 
 Minn. 210, ... - 1067 
 Fogarty v. Cullen, 49 N. Y. 
 
 Superior Ct. 397, - - 529, 746 
 Fogerty v. Jordan, 2 Robt. (N. 
 
 Y.) 319, ... - 331, 332 
 Fogg V. Greene, 16 Me. 2S3, - 1160 
 V. Johnston, 27 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, 524, 981, 
 
 1147, 1150, 1151 
 
 Foltz V. Pourie, 2 Desaus. (S. 
 
 Ca.) 40, .... 695 
 
 Fontaine v. Lee, 6 Ala. 889, 694, 695 
 Foot, Re, 12 Bankr. Reg. 337; 8 
 
 Ben. 228, - - - 841, 842 
 
 V. Hunkins, 14 Allen, 15, 1103 
 
 V. Ketchum, 15 Vt. 258 
 
 (40 Am. Dec. 678), - - 1082 
 
 V. Sabin, 19 Johns. 154 (10 
 
 Am. Dec. 208), - 349, 858, 362 
 Forbes v. Davison, 11 Vt. 660, 569, 
 
 1140 
 
 V. Scannell, 13 Cal. 243, 340, 825 
 
 Ford V. Clark, 73 Ga. 760, - 703 
 Ixxvii
 
 For.] 
 
 TABLE OF CASES. 
 
 [Fox, 
 
 Ford V. Kennedy, 64 Ga. 537, 1151, 
 
 1154, 1170 
 
 V. McBryde, 45 Tex. 498, 370, 
 
 372 
 
 V. Smith, 27 Wis. 261, 36, 43, 
 
 1108, 1110 
 Forde v. Herron, 4 Muuf. (Va.) 
 
 316, 295 
 
 Fordice v. Scribner, 108 Ind. 
 
 85, 430 
 
 Fordyce v. Shriver, 115 111. 530, 761, 
 
 967 
 Forkner v. Stuart, 6 Gratt. 197, 320, 
 40;J, 405, 406, 418 
 Forman v. Homfray, 3 Ves. & 
 
 Bea. 329, - - - - 910 
 Forney v, Adams, 74 Mo. 138, 410, 
 
 427, 1038, 1043 
 Forrer v. Forrer, 29 Gratt. 
 
 (Va.) 134, - - 305, 770, 777 
 Forrester v. Oliver, 1 111. App. 
 
 259, 727 
 
 Forsaith v. Merritt, 1 Low. 
 
 366; 3 Bankr. Reg. 11, - 753, 755 
 Forster v. Lawson, 3 Bing. 
 
 453; 11 Moo. 360, - - - 1031 
 
 V. Mackreth, L. R. 2 Ex. 
 
 163, - - 329, 343, 371, 376 
 
 Forsyth, Re, 7 Baukr. Reg. 174, 347 
 
 V. Woods, 11 Wall. 484, - 111, 
 
 128, 173, 453, 829 
 Fortune v. Brazier, 10 Ala. 793, 1024 
 
 V. Hayes, 5 Rich. (S. Ca.) 
 
 Eq. 112, 704 
 
 Forward v. Forward, 6 Allen 
 
 494, 706, 742, 746, 788, 925, 926 
 
 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. 230), 289, 290, 294, 297, 
 
 299, 743 
 Foster v. Allanson, 2 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, 813 
 
 V. Donald, 1 Jac. & W. 
 
 252, ... - 971, 972 
 
 V. Fifield, 29 Me. 136, 424, 647, 
 
 701, 978, 1048 
 V. Hall, 4 Humph. (Tenn.) 
 
 346, 216, 347, 439, 446, 584, 727, 
 
 1168 
 
 V. Rison, 17 Gratt. 321, - 861, 
 
 949, 950, 952, 957, 958 
 
 -'v. Shephard, 33 Tex. 687, 741, 
 
 1003 
 V. Vanauken, 4 N. J. L. 
 
 109, 865 
 
 V. Ward, 1 Cababe & El- 
 lis, 168, 90f 
 
 Foulks V. Rhodes, 12 Nev. 225, 850 
 
 874, 88^ 
 Fourth National Bank v. Heu- 
 
 schen, 52 Mo. 207, - 397, 69' 
 
 Fowke V. Bowie, 4 Har. & J. 
 
 566, 49''r 
 
 Fowle V. Harrington, 1 Cush. 
 
 146, - - 349, 690, 694, 695 
 
 V. Torrey, 131 Mass. 289, 503 
 
 Fowler v. Bailley, 14 Wis. [125] 
 
 136. - - - - 2'Jl, 1086 
 V. Reynal, 2 DeG. & Sm. 
 
 749; 3 M. & G. 500, - - 174 
 
 V. Richardson, 3 Sneed 
 
 (Tenn.), 508, - - 526, 094, 095 
 
 V. Tuttle, 24 N. H. 9, - 268 
 
 V. Williams, 02 Mo. 403, - 1065 
 
 Fowlkes V. Baldwin, 2 Ala. 
 
 705, - - - 1074, 1086, 1087 
 V. Bowers, 11 Lea (Tenn.), 
 
 144, - 452, 453a, 825, 828, 841 
 
 Fox V. Clifton, 6 Bing. 776; 4 
 
 M. &P. 713, - 72,74,83,95,160 
 
 V. Haubuiy, Cowper, 445, 184, 
 
 274, 403, 583, 610, 754, 755 
 
 V. Johnson, 4 Del. Ch, 580, 141 
 
 V. Norton, 9 Mich. 207, - 215, 
 
 416 
 V. Rose, 10 Up. Can. Q. B. 
 
 16, 276, 403, 405, 577, 585, 756 
 
 Ixxviii
 
 Fka.] 
 
 TABLE OF CASES. 
 
 [Fro. 
 
 Francis, In re, 2 Sawy. 286 ; 7 
 
 Bankr. Reg. 359, 23, bo, 43, 47, 49 
 
 , The. 1 Gall. 618, - 191, 793 
 
 V. Dickel, 68 Ga. 255, 139, 1094 
 
 V. Lavine, 21 La. Ann. 
 
 265, 930 
 
 V. Rand, 7 Conn. 221, - 1079, 
 
 1080 
 
 V. Smith, 1 Duv. 121, - 504 
 
 Francisco v. Fitch, 25 Barb. 
 
 130, 730 
 
 Fraucklyn v. Sprague, 131 
 
 U. S. 215, - - 294, 500, 645 
 Frank v. Anderson, 13 Lea 
 
 (Tenn.), 695, - - - 136, 137 
 V. Beswick, 44 Up. Can. Q. 
 
 B. 1, - - - - 243, 580 
 
 V. Blake, 58 Iowa, 750, - 393 
 
 V. Peters, 9 Ind. 343, - 824 
 
 Fraser v. Kershaw, 2 Kay & 
 
 J. 496, ... - 754, 755 
 V. McLeod, 8 Grant's Ch. 
 
 (Up. Can.) 208, - - 310, 373 
 Frazer v. Howe, 106 111. 503, 510, 
 
 511 
 Frazier v. Frazier, 77 Va. 775, 770, 
 
 774 
 Freck v. Blakiston, 83 'Pa. St. 
 
 474, - - - 307, 793, 903 
 Frederick, The, 5 Rob. Adra. 
 
 8, 59 
 
 V. Cooper, 3 Iowa. 171 (C. 
 
 V. F. 4 G. Greene, 403), 182, 216, 
 
 779, 931, 936 
 Freeland v. Stansfeld, 3 Sm, .& 
 
 G. 479, - 241, 755, 805, 807, 808, 
 
 809, 820, 995 
 Freeman, Ex parte. Buck, 471, 503, 
 
 516 
 
 V. Bloomfield, 43 Mo. 391, 159, 
 
 165, 317 
 
 V. Campbell, 55 Cal. 197, 453 
 
 V. Campbell, 56 Cal. 039, 189 
 
 V. Carhart, 17 Ga. 348, - 10S8 
 
 V. Carpenter, 17 Wis. 126, 329, 
 
 371 
 
 V. Fairlie, 3 Mer. 24, - 814 
 
 F 
 
 Freeman v. Falconer, 44 N. Y. 
 
 Superior Ct. 132, - - - 628 
 
 V. Freeman, 136 Mass. 200, 739, 
 
 794, 795, 923, 974 
 
 V. Ross, 15 Ga. 252, 347, 352, 353 
 
 V. Stewart, 41 Miss. 138, 749, 
 
 824, 929 
 Freeman's Nat'l B'k v. Savery, 
 
 127 Mass. 75, 349, 354, 355, 359 
 
 Frcese v. Ideson, 49 111. 191, - 1136 
 French v. Andrade, T. R. 
 
 582, 723 
 
 V. Barron, 49 Vt. 471, - 101 
 
 V. Chase, 6 Me. 106, - 155 
 
 V. Donohue, 29 Minn. Ill, 133 
 
 V. Hayward, 16 Gray, 
 
 512, 736 
 
 V. Lovejoy, 13 N. H. 458, 566, 
 
 723, 731, 1045 
 
 V. Price, 24 Pick. 13, - 71 
 
 V. Rowe, 15 Iowa, 563, - 472 
 
 V. Styring, 2 C. B. N. S. ^ 
 
 357, . ... 63, 257 
 
 V. Wall, 2 Tex. 288, - - 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 v. Friermuth, 40 
 
 Cal. 42, 746 
 
 Frigerio v. Crottes, 20 La. 
 
 Ann. 351, - - - - 813 
 Frink v. Branch, 16 Conn. 260, 282, 
 
 291, 295 
 V. Ryan. 4 III. 323, - 
 
 Fripp V. Williams, 14 S. Ca. 
 
 502, 
 
 Frith V. Lawrence, 1 Paige, 
 
 424, 
 
 From me v. Jones, 13 Iowa, 
 474, 
 
 Fromont v. Coupland, 2 Bing. 
 
 170, - 67, 257, 850, 856, 861 
 Froneberger v. Henry, 6 Jones, 
 L. 348, .... 420, 432 
 Ixxix 
 
 887 
 480 
 822 
 406
 
 Feo.] 
 
 TABLE OF CASES. 
 
 [Gal. 
 
 590 
 
 506 
 
 59 
 
 Frost V. Hanford, 1 E. D. 
 Smith, 540, - - - 332, 323 
 
 V. Moulton, 21 Beav. 596, 164, 
 
 169 
 
 V. Schackleford, 57 Ga. 
 
 260, .... 1067, 1070 
 
 V. Walker, 60 Me. 468, - 72, 
 
 78, 74, 458 
 Frothingham v. Seymour, 121 
 Mass. 409, - - - - 
 Froun v. Davis, 97 Ind. 401, - 
 Frout V. Hardin, 56 Ind. 165, 
 Frow, Jacobs & Co.'s Estate, 
 
 73 Pa. St. 459, 453, 532, 848, 879 
 Fry, Ex parte. 1 GI. & J. 96, - 503 
 
 V. Hawley, 4 Fla. 258, - 164 
 
 V. Potter, 12 R. I. 542, - 865 
 
 Frye v. Sanders, 21 Kan. 26 (30 
 
 Am. Rep. 421), - 334, 424, 905 
 Fullam V. Abrahams, 29 Kan. 
 
 725, - . . . 825, 847 
 
 Fuller V. Benjamin, 23 Me. 255, 930, 
 
 931, 933 
 
 V. Ferguson, 26 Cal. 546, 189 
 
 V. Hooper, 3 Gray, 334, 399, 
 
 841 
 
 V. Miller, 105 Mass. 103, - 230, 
 
 779, 922 
 Nelson, 35 Minn. 213, 1016 
 Percival, 126 Mass. 381, 895 
 
 V. Rowe, 57 N. Y. 23 (rev. 
 
 59 Barb. 344), - - 5, 7, 507 
 
 V. Scott, 8 Kan. 25, - - 362 
 
 Fullerton v. Seymour, 5 Vt. 
 
 249, 10G8 
 
 Fulmer's Appeal, 90 Pa. St. 143, 182, 
 
 252, 255 
 Fulton's Appeal, 95 Pa. St. 323, 852 
 Fulton V. Central B'k of Pitts- 
 burg, 62 Pa. St. 112, - - 695 
 
 V. Golden, 12 N. J. Eq. 37, 978 
 
 Hughes, 63 Miss. 61, 551, 560 
 
 Maccracken, 18 Md. 528, 191 
 
 Thompson. 18 Tex. 278, 580, 
 
 710, 711, 731, 741, 1000 
 
 V. Williams, 11 Cush. 108, 346, 
 
 531, 882, 884 
 
 V. 
 V 
 
 V. 
 
 V. 
 
 V. 
 
 Funck V. Haskell, 132 Mass. 
 
 580, - - - - - 779 
 Funk V. Leachman, 4 Dana, 24, 780 
 Fuqua v. Mullt-n, 13 Bush, 467, 724 
 Furlong v. Bartlett, 21 Pick. 
 
 401, 147 
 
 Furnival v. Weston, 7 J. B. 
 
 Moore, 350, - - - - 883 
 
 G. 
 
 Gaar v. Huggins, 12 Bush, 
 
 259, - - - 618, 625, 1157 
 
 Gable v. Williams, 59 Md. 46, 732, 
 
 741, 1000, 1001 
 Gabriell v. Evill, 9 M. & W. 
 
 297 ; Car. & Marsh. 358, - 83 
 Gadsden v. Carson, 9 Rich. Eq. 
 
 252, - . . . 569, 825 
 
 Gaflfney v. Hoyt (Idaho), 10 
 
 Pac. Rep. 34, - - . 1155 
 Gage V. Angell, 8 How. Pr. 335, 850 
 V. Canada Pub. Co. 11 
 
 663 
 211, 
 
 Out. App. 402 (affg. 6 id. 68), 
 
 V. Parmalee, 87 III. 329, 
 
 777, 786, 95!:!, 979, 981, 983 
 
 V. Rollins, 10 Met. 348, 205, 
 
 437, 1020 
 Gaines v. Beirne, 3 Ala. 114, 1055, 
 
 1127 
 
 V. Catron, 1 Humph. 
 
 (Tenn.) 514, .... 285 
 
 V. Coney, 51 Miss. 323, - 180 
 
 Galbraith v. Gedge, 16 B. Mon. 
 
 630, 290, 293, 294, 297, 298, 822 
 
 Galbreath v. Moore, 2 Watts, 
 
 86, 865 
 
 Gale V. Leckie, 2 Stark. 107, 870, 
 
 873, 874 
 V. Miller, 54 N. Y. 536 
 
 (affg. 1 Lans. 451 ; s. C. at an 
 
 earlier stage, 44 Barb. 420), 347, 
 300, 369, 626, 691 
 Gallagher's Appeal, 7 Atl. R. 
 
 237; 114 Pa. St. 353, - 559, 569 
 Gallop V. Newman, 7 Pick. 282, 47 
 
 Ixxz
 
 Gal.] 
 
 TABLE OF CASEa 
 
 [Gat. 
 
 Galloway v. Hughes, 1 Bail, 
 
 (S. Ca.) L. 553, - -' - 818 
 Gallway v. Mathew. See Gal- 
 way V. Matthew. 
 Galway v. Fullerton, 17 N. J. 
 
 Eq. 389, 406 
 
 V. Mattliew, 1 Camp. 403 
 
 (S. C. as Gallway v. Mathew, 
 
 10 East, 2G4), 197, 200, 325, 346 
 
 Gamble v. Grimes, 2 Ind. 392, 347 
 Gammon v. Huse, 9 111. App. 
 
 557 (affd. 100 111. 234), 882, 884 
 V. Huse, 100 111. 234 (affg. 
 
 9 111. App. 557), - 211,882,884 
 Gandolfo v. Appleton, 40 N. 
 
 Y. 533, - 452, 523, 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, 372, 395 
 Gansevoort v. Kennedy, 30 
 
 Barb. 279, - - - 432, 434 
 V. "Williams, 14 AVend. 
 
 133, - 317, 349, 362, 364, 448 
 Gantt V. Gautt, 6 La. Ann. 
 
 677, 
 
 Garbett v. Yeale. 5 Q. B. 408; 
 
 13 L. J. Q. B. 98, - 
 Gard v. Clark, 29 Iowa, 189, - 
 
 Garland v. Agee, 7 Leigh (Va.), 
 362, 701 
 
 V. Jacomb, L. R. 8 Ex. 
 
 216, - - 329, 347, 423, 691 
 
 Garner v. Myrick, 30 Miss. 
 
 302 
 
 1102 
 
 692, 
 
 693 
 
 Gardenhire v. Smith, 39 Ark. 
 280, 59 
 
 Gardiner v. Bataille, 5 La. 
 Ann. 597, - - - - 575 
 
 v. Fargo, 58 Mich. 72, - 639, 
 
 850, 856 
 
 V. Levaud, 2 Yeates, 185, 1162 
 
 Gardner v. Baker, 25 Iowa, 
 
 343, 386 
 
 V. Conn, 34 Oh. St. 187, - 526, 
 
 694 
 
 V. Northwestern Mfg. Co. 
 
 52 111. 367, - - - 1151, 1153 
 Gardom, Ex parte, 15 Ves. 286, 349 
 Garland, Ex parte, 10 Ves. 110, 51, 
 
 600, 739 
 
 448, 
 
 1168 
 5, 8 
 
 Garnett v. Richardson, 35 Ark. 
 
 144, 
 
 Garnier v. Gebhard, 33 Ind. 
 
 225, 633 
 
 Garrard v. Dawson, 49 Ga. 434, 749 
 Garret v. Taylor, 1 Esp. 117, 1024 
 Garrett's Appeal, 100 Pa, St. 
 
 597, 496 
 
 Garrett v. Bradford, 28 Gratt. 
 
 609, . . - . 764, 775 
 V. Handley, 5 Dow. & R, 
 
 319; s. C. 4 B. & C. 664; S. 
 
 C. 3 id. 463, - - - - 
 
 V. Muller, 37 Tex. 589, - 
 
 Garretson v. Weaver, 3 Edw. 
 
 Ch. (N. Y.) 385, - 
 Gartside Coal Co. v. Maxwell, 
 
 22 Fed. Rep. 197, 
 Garvin v. Paul, 47 N. H. 158, 1072, 
 
 1106 
 Gaselys v. Separatists' Soc. 13 
 
 Oh. St. 144, .... 
 Gaslin v. Pinney, 23 Minn. 26, 
 Gass V. N. Y., Providence & 
 
 Boston R. R. 99 Mass. 220, - 
 
 V. Stinson, 3 Sumn. 93, 
 
 V. Wilhite, 2 Dana, 170, 
 
 Gaston v. Drake, 1 Nev. 175, 
 Gates V. Beecher, 60 N. Y. 518 
 
 (19 Am. Rep. 207) {infra, 3 
 
 Th. & C. 404), - - 397, 697 
 
 V. Bennett, 33 Ark. 475, 406 
 
 V. Fisk, 45 Mich. 523, 704, 705 
 
 V. Fraser, 6 111. App. 229, 209, 
 
 573, 932 
 
 V. Graham, 12 Wend. 53, 410, 
 
 421 
 
 V. Hughes, 44 Wis. 332, - 519, 
 
 523, 534 
 
 V. Mack, 5 Cush. 613, - 1094 
 
 V. Manny, 14 Minn. 21, - 1158 
 
 1019 
 1023 
 
 993 
 
 4,7 
 
 13 
 
 233 
 
 66 
 
 495 
 
 18 
 
 111 
 
 Ixxxi
 
 Gat.] 
 
 TABLE OF CASES. 
 
 [Gil. 
 
 Gates V. Pollock, 5 Jones (N. 
 
 Ca.), L. 844, - - - - 415 
 
 V. Watson, 54 Mo. 585, - 101, 
 
 446, 419, 456. 1051, 1068 
 Gathriglit v. Burke, 101 lud. 
 
 590, G21 
 
 Gauger v. Pautz, 45 Wis. 449, 887 
 Gault V. Calland, 7 Leigh, 594, 732 
 Gaus V. Hobbs, 18 Kau. 500, 78, 446, 
 
 507 
 Gaut V. Reed, 24 Tex. 4^, 246, 535, 
 
 743, 744, 749 
 
 Gavin v. Walker, 14 Lea, 643, 156, 
 
 157, 329, 344, 371, 374, 443, 1153 
 
 Gay V. Bo wen, 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. 537, 453 
 
 V. Seibold, 97 N. Y. 472 
 
 (49 Am. Rep. 533), - - 198 
 V. Waltinan, 89 Pa. St. 
 
 453, ... - 336, 1072 
 Gaylord v. Irahoff, 26 Oh. St. 
 
 317 (20 Am. Rep. 762 ; 15 Am. 
 
 Law Reg. (N. S.) 477), - - 1131 
 Geddes' Appeal, 84 Pa. St. 482, 239, 
 
 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 Russ. & My. 
 
 281, 926 
 
 Geery v. Cockroft, 33 N. Y. 
 
 Superior Ct, 146, - - - 1046 
 
 V. Geery, 79 N. Y. 565, 971, 972 
 
 Gellar, Ex parte, 1 Rose, 297, 16, 
 
 258 
 Geller, Ex parte, 3 Mad. 263, - 833 
 Genesee Sav. Bank v. Mich. 
 
 Barge Co. 53 Mich. 164, - 1155 
 George v. Tate, 102 U. S. 564, 401, 
 
 406 
 
 George v. Wamsley, G4 Iowa, 
 
 175, - - - 560, 565, 566 
 Georgia Co. v. Castleberry, 43 
 
 Ga. 187, . - - . 505 
 
 Geortner v. Canajoharie, 3 
 
 Barb. 625, - - - 566, 994 
 Gerard v. Basse, 1 Dall. 119, 377, 
 
 379, 380, 414 
 V. Gateau, 84 111. 121 (25 
 
 Am. Rep. 438), - - - 594 
 Gere v. Clarke, 6 Hill, 350, - 714 
 Gerhardt v. Swaty, 57 Wis. 24, 389, 
 
 463, 480 
 German Bank v. Schloth, 59 
 
 Iowa, 516, - - - 265, 382 
 Gernon v. Hoyt, 90 N. Y. 
 
 631, 443 
 
 Getchell v. Foster, 106 Mass. 
 
 42, 28, 191, 200, 201, 443, 444, 524 
 Gething v. Keighley, 9 Ch. D. 
 
 547, - - . - 959, 964 
 
 Gibbs V. Bates, 43 N. Y. 192, - 629 
 
 V. Merrill, 3 Taunt. 307, 148 
 
 Giblett V. Read, 9 Mod. 459, - 005 
 Gibson v. Lupton, 9 Bing. 287, 65 
 
 V. Moore, 6 N. H. 547, 861, 866 
 
 V. Oliio Farina Co. 3 Dis- 
 ney, 499, - - - - 905 
 
 V. Stevens, 7 N. H. 353, 53, 598, 
 
 599, 1106 
 V. Stone, 43 Barb. 385 ; 28 
 
 How. Pr. 468, ... 60 
 
 V. Warden, 14 Wall. 344, 407, 
 
 416, 418 
 Giddings v. Palmer, 107 Mass. 
 
 269, . . - - 551, 561 
 
 V. Seevers, 34 Md. 863, - 646 
 
 Gilbank v. Stephenson, 31 Wis. 
 
 593, 85 
 
 Gilbert's Appeal, 78 Pa. St. 
 
 266, 744 
 
 Gilbert v. Whidden, 20 Me. 
 
 367, - - - 1140, 1142, 1159 
 
 V. Wiman, 1 N. Y. 550, 630, 
 
 639 
 Gilbraith v. Lineberger, 69 N. 
 Ca. 145, . - - - 99, 1148 
 
 Ixxxii
 
 Gil.] 
 
 TABLE OF CASES. 
 
 [God. 
 
 Gilchrist v. Brande, 58 Wis. 
 
 184, - 348, C03, C21, 1151, 1153 
 Gilhooly v. Hart, 8 Daly, 176, 770, 
 
 783 
 Gill V. Geyor, 15 Ob. St. 899, - 2:10, 
 
 231, 815 
 
 V. Ferris, 83 Mo. 156, 43, 193, 
 
 576 
 
 V. Kulin, 6 S. & R. 333, - 17 
 
 V. Lattimore, 9 Lea, 381, 5C0, 
 
 1131, 1133 
 V. Morrison, 26 Up. Can. 
 
 C. P. 134, .... 68 
 Gillan v. Morrison, 1 DeG. & 
 
 S. 421, ... - 459, 759 
 Gillaspy v. Peck, 46 Iowa, 461, 847 
 Gillett V. Gaffuey, 3 Colorado, 
 
 351, 305 
 
 V. Hall, 13 Conn. 426, 907, 984 
 
 V. Thornton, L. R. 19 Eq. 
 
 599, - - - - 216, 223 
 
 V. Walker, 74 Ga. 291, - 10G2 
 
 Gillies V. Colton, 23 Grant's 
 
 Ch. (Up. Can.) 123, - 59, 69 
 
 Gillig V. Lake Bigler Road Co. 
 
 3 Nev. 214, - - - - 1063 
 Gillham v. Kerone, 45 Mo. 487, 257. 
 
 260, 1110 
 Gillilan v. Sun Mut. Ins. Co. 
 
 41 N. Y. 376, - - 681, 6S2, 633 
 Gillow V. Lillie, 1 Bing. N. 
 
 Cas. 695, - - - 315, 346 
 
 Gilly V. Singleton, 3 Litt. (Ky.) 
 
 219, 
 
 Oilman v. Foote, 32 Iowa, 560, 
 V. Vaughan, 44 Wis. 646, 
 
 697 
 
 5:37 
 
 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 
 
 Gilpatrick v. Huuter, 34 Me. 18, 386 
 Gilpin V. Enderbey, 5 B. & 
 Aid. 954, - - - 16, 47, 56 
 
 Ginesi v. Cooper, 14 Ch. D. 
 
 596, - 663, 664, C66, 667, 668 
 
 Giovanni v. First Natl. Bk. 55 
 
 Ala. 305 (38 Am. Rep. 723) 
 
 (overruling s. c. 51 id. 17()), 1131 
 Glass Co. v. Ludlum. 8 Kan. 40, 734 
 Glasscock v. Smith, 25 Ala. 
 
 474, ... - 690, 691 
 Glassington v. Thwaites, 1 
 
 Sim. & Stu. 124, - - 306, 988 
 V. Thwaites, Coop. temp. 
 
 Brougham, 115, - - - 243 
 Gleadow v. Hill Glass Co. 13 
 
 Jur. 10-20, .... 767 
 Gleason v. Clark, 9 Cow. 57, - 700 
 
 V. McKay, 134 M iss. 419, 176 
 
 V. Van Aernam, 9 Oregon, 
 
 343, .... 859, 919 
 
 V. White, 34 Cal. 258, - 735 
 
 Glen & Hall Mfg. Co. v. Hall, 
 
 61 N. Y. 226 (rev. 6 Lans. 
 
 158), 663 
 
 Glenn v. Arnold, 56 Cal. 631, - 189 
 V. Caldwell, 4 Rich. Eq. 
 
 (S. Ca.) 168, - - - - 883 
 
 V. Gill, 3 Md. 1, 103, 104, 105, 
 
 834 
 Glidden v. Taylor, 16 Oh. St. 
 
 509, 140 
 
 Glossop V. Coleman, 1 Stark. 
 
 35, - . - - - - 1023 
 Glover v. Tuck, 24 Wend. 
 
 153, 876 
 
 Glyn V. Hood, 1 Giff. 328; 1 
 
 De G. F. & J. 334, - - 927 
 Glynn v. Phetteplace, 26 Mich. 
 
 383, - - 543, 852. 910, 931 
 Goble V. Gale, 7 Blackf. 218 
 
 (41 Am. Dec. 219), - - 1023 
 
 V. Howard, 13 Oh. St. 165, 894 
 
 Goddard v. Brown, 11 Vt. 278, 445, 
 
 1053 
 
 V. Cox, 2Stra. 1194, - 495 
 
 V. Hapgood, 25 Vt. 351 (CO 
 
 Am. Dec. 272), - - - 569 
 
 V. Hodges, 1 Cr. & M. 33, 55, 
 
 852, 854 
 
 Ixxxiii
 
 God.] 
 
 TABLE OF CASES. 
 
 [Gou. 
 
 Goddard v. Ingram, 3 Q. B. 839, 703 
 
 V. Pratt, 16 Pick. 412, 33, 64, 
 
 83, 150, 153, 589, 608, 609, 
 611, 622, 1156 
 
 V. Eenner, 57 Ind. 532, 403, 404 
 
 Godden v. Kimmell, 99 U. S. 
 
 201, 942 
 
 Godfrey v. White, 43 Mich. 171, 282, 
 
 294, 313, 767, 770, 775, 777, 
 
 785, 907, 974, 975, 976, 977 
 
 Goedde, Re, 6 Baukr. Reg. 295, 832, 
 
 833 
 Goelet V. McKinstry, 1 Johns. 
 
 Gas. 405, - - - 724, 746 
 Goell V. Morse, 126 Mass. 480, 63 
 Goembel v. Arnett, 100 111. 34, 551, 
 
 560 
 Goepper v. Kinsinger, 39 Oh. 
 
 St. 429, - - - 283, 286 
 
 Goesele v. Bimeler, 14 How. 
 
 589 (a Jig. 5 McLean, 223), - 13 
 Goldie V. Maxwell, 1 Up. Can. 
 
 Q. B. 424, - - - 205, 439 
 Golding V. Vaughan, 2 Chitty, 
 
 436, . . - . 722, 723 
 
 Goldman v. Page, 59 Miss. 404, 1028 
 Goldshorough v. McWilliams, 
 
 2 Cranch, C. C. 401, - - 858 
 Goldsmith v. Sachs, 17 Fed. 
 
 Rep. 726; 8 Saw. 110, 13, 870, 872 
 Goll V. Hinton, 8 Abb. Pr. 122, 1105 
 
 V. Hubbell, 61 Wis. 293, 1132 
 
 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, 290, 297, 298, 580, 
 
 794, 801 
 Goode V. Harrison, 5 B. & Aid. 
 
 147, - - - 143, 146, 611 
 V. Linecum, 1 How. (Miss.) 
 
 281, .... 317, 373 
 
 V. McCartney, 10 Tex. 193, 43, 
 
 317, 362, 1040 
 
 Goodenow v. Jones, 75 111. 48, 503, 
 
 507, 508, 510, 511 
 
 Goodin v. Ai-mstrong, 19 Ohio, 
 44, 858, 860 
 
 Goodman V. Henderson, 58 Ga. 
 567, 676 
 
 v.Whitcomb, 1 Jac. & W. 
 
 589, .... 313, 314 
 
 V. White, 25 Miss. 163, - 317 
 
 Goodnow V. Smith, 18 Pick. 
 
 414, 386 
 
 Goodrich v. Leland, 18 Mich. 
 
 110, 446 
 
 Goodson V. Cooly, 19 Ga. 599, 870 
 Good speed v. South Bend Plow 
 
 Co. 45 Mich. 237, - 526, 694, 707 
 
 V. Wiard Plow Co. 45 
 
 Mich. 322, ... . 707 
 
 Goodwin v. Einstein, 51 How. 
 
 Pr. 9, 803 
 
 Gordon's Estate, 11 Phila. 136, 836 
 Gordon v. Bankard, 37 111. 147, 199, 
 
 1154 
 
 V. Boppe, 55 N. Y. 665, - 875, 
 
 877 
 
 V. Buchanan, 5 Yerg. 7, - 333 
 
 V. Cannon, 18 Gratt. 387, 338, 
 
 555, 825 
 
 V. Freeman, 11 III. 14, - 381, 
 
 583, 681, 684 
 
 V. Gordon, 49 Mich. 501, 286, 
 
 917 
 
 V. Janney, Morris (Iowa), 
 
 183, 1143 
 
 V. Kennedy, 36 Iowa, 167, 828 
 
 V. Tyler, 53 Mich. 629, - 1039, 
 
 1040 
 Gorham v. Farson, 10 N. E. 
 
 Rep. 1; 119 111. 425, . - 918 
 
 Gorman v. Russell, 14 Cal. 531, 7, 
 
 75, 241, 591, 1028 
 
 V. Russell, 18 Cal. 688, - 75 
 
 Gossett V. Weatherly, 5 Jones 
 (N. Ca.), Eq. 46, - - . 570 
 
 Gott V. Dinsniore, 111 Mass. 
 45, 73, 73 
 
 Gough V. Davies, 4 Price, 200, 521 
 
 Gould V. Gould, 35 N. J. Eq. 
 37; id. 563; 36 id. 380, - 141 
 
 Ixxxiv
 
 Gou.] 
 
 TABLE OF CASES. 
 
 [Gea. 
 
 Gould V. Gould, 6 Wend. 263 
 
 (aff'g s. c. 8 Cow. 168), - 181, 1019 
 
 V. Horner, 12 Barb. 601, 216 
 
 V. Kendall, 15 Neb. 549, - 111, 
 
 114, 119, 137, 128 
 Gould ing. Ex parte, 2 Gl. & J. 
 
 118, 509 
 
 Gouthwaite v. Duckworth, 2 
 
 East, 421, .... 80 
 Gover v. Hall, 3 Har. & J. 
 
 (Md.) 43, ... 952, 903 
 Gow V. Forster, 26 Ch. D. 672, 605 
 Go wan v. Jackson, 20 Johns. 
 
 176, - - 399, 1155, 1158, 1159 
 V. Jeffries, 2 Ashmead, 
 
 296, 591 
 
 V. Tun no. Rich. Eq. Cas. 
 
 (S. Ca.) 369, - - - 750, 847 
 Grabenheimer v. Riudskoff, 64 
 
 Tex. 49, - - 43, 105, 1109 
 
 Grace v. Smith, 2 W. Bl. 998, 16, 47 
 Grady v. Robinson, 28 Ala. 
 
 2S9, - 72, 74, 83, 293, 416, 417 
 
 Graeff 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. Boy n ton, 35 Tex. 
 
 712, 1124 
 
 V. Holt, 3 Ired. (S. Ca.) L. 
 
 300 (40 Am. Dec. 408), - - 856 
 
 V. Howell, 50 Ga. 203, - 1171 
 
 V. Meyer, 4 Blatchf. 129, 468 
 
 V. Pocock, L. R. 3 P. C. 
 
 345, 468 
 
 V. Robertson, 2 T. R. 282, 753, 
 
 895, 8915 
 313, 703, 
 
 Granger v. McGilvra, 24 111. 
 
 152, - 326, 331, 681, 682, 1039 
 Grant, Re, 6 Law Reporter, 
 
 158, 400 
 
 V. Bryant, 101 Mass. 567, 230 
 
 V. Crowell, 43 N. J. Eq. 
 
 V. Selover, 59 Barb, 
 
 1 C. & M 
 
 704 
 
 -~ — V. Whichelo, 
 
 188, 709 
 
 Gram v. CadweU, 5 Cow. 489, 823, 
 
 383, 683, 684, 1044 
 
 V. Seton, 1 Hall, 262, 414, 416 
 
 524, 
 
 — V. Hardy, 33 Wis. 6G8, - 
 
 — V. Holmes, 75 Mo. 109, - 
 
 — V. McKinney, 36 Tex. 62, 
 
 — V. Masterton, 55 Mich. 161, 
 
 — V. Poillon, 20 How. 162, - 
 
 — V. Shurter, 1 Wend. 148, 
 
 753 
 307 
 387 
 742 
 981 
 908 
 747 
 Graser v. Stellwageu, 25 N. Y. 
 
 315, .... 325, 403 
 Grasswitt v. Connally, 27 
 
 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. 2 
 
 Cranch, 419, .... 409 
 
 V. Cook, 2 Jur. N. S. 475, 876 
 
 V. Hall, 33 Tex. 605, 338, 340 
 
 V. Kellenberger, 51 Ind. 
 
 66, ... 257, 343, 409 
 
 V. Merry, 6 Cow. 701 (16 
 
 Am. Dec. 471), - 613, 618, 698 
 Gray v. Badgett, 5 Ark. 16, - 1079 
 
 V. Brown, 22 Ala. 263, - 385 
 
 V. Chiswell, 9 Ves. 118, 825, 828 
 
 V. Clement, 12 Mo. App. 
 
 579, 734 
 
 V. Cropper, 1 Allen. 337, 480 
 
 V. Gibson. 6 Mich. 300, 78, 1140 
 
 V. Haig, 20 Beav. 219, - 983 
 
 V. Larrimore, 3 Abb. (U. 
 
 S.) 542, .... 930 
 
 V. McMillan, 22 Up. Can. 
 
 Q. B. 456, 635, 636, 637, 640, 879 
 
 V. Palmer. 9 Cal. 616, 13, 150, 
 
 279, 294, 301, 9T0, 976 
 
 V. Rollo, 18 Wall. 631, - 1081 
 
 V. Steedman, 63 Tex. 95, 1121 
 
 V. Ward, 18 111. 32, - 329, 347 
 
 363, 420, 437, 430 
 
 Ixxxv
 
 Gka.] 
 
 TABLE OF CASES. 
 
 [Gel 
 
 Gray v. Washington, Cooko, 
 321, 964 
 
 V. Williams, 9 Humph. 
 
 503, .... C36, 640 
 
 Grazebroolr, Ex parte, 2 Deac. 
 & Ch. 186, - - - 634, 843 
 
 V. McCreedie, 9 Wend. 
 
 437, 
 
 380 
 
 Greathouse v. Greathouse, 60 
 
 Tex. 597. .... 850 
 Greatrex v. Greatrex, 1 DeG. 
 
 & S. 693, .... 814 
 Great Westei'n R'y v. Preston 
 
 & Berlin R'y, 17 Up. Can. Q. 
 
 B. 477, 45 
 
 Great Western Tel. Co., Re, 5 
 
 Biss. 363, - - - - 208 
 Greeley v. Wyeth, 10 N. H. 15, 411, 
 
 430, 1037 
 Gregg V. Fisher, 3 111. App. 
 
 261, - 328, 341, 348, 361, 370 
 V. James, Breese (111.), 107 
 
 (12 Am. Doc. 151), 381 681, 1079 
 Gregory v. Dodge, 4 Paige, 
 
 557, 1169 
 
 V. Martin, 78 111. 38, - 1154 
 
 V. Menefee, 83 Mo. 413, 733 
 
 742, 772, 78o 
 
 V. Patchett, 33 Beav. 593, 435 
 
 Green v. Beala, 2 Caines, 254, 377, 
 379, 380, 414, 421 
 V. Beesley, 2 Biug. N. Cas. 
 
 108, 27,67 
 
 — - V. Briggs, 6 Hare, 395, - 70 
 V. Castlebury, 77 N. Ca. 
 
 164, 908 
 
 V. Caulk, 16 Md. 556, - 1159 
 
 V. Chapman, 27 Vt. 236, 899, 
 
 900, 905, 1095 
 
 V. Edick, 50 N. Y. 613, - 1170 
 
 V. Pyne, 1 Ala. 235, - - 1051 
 
 V. Raud, 2 Conn. 254, - 377 
 
 V. Tanner, 8 Met. 411, 446, 451 
 
 V. Virden, 22 Mo. 506, - 733 
 
 V. Waring. 1 W. Bl. 475, 
 
 Greene v. Ferrie, 
 (S. Ca.) 164, - 
 
 1 Desaus. 
 
 234 
 
 564 
 
 Greene v. Graham, 5 Oh. 264, 294, 
 
 297, 975 
 V. Greene, 1 Oh. 535 (13 
 
 Am. Dec. 642), - - 281, 290 
 Greenebaum v. Gage, 61 III. 46, 677 
 Gieenewald 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 (23 
 
 Am. Dec. 145), - - - 705 
 Greenslade v. Dower, 7 B. & 
 
 C. 635; 1 Man. & Ry. 640, 329, 
 
 343, 345, 371 
 Greentree v. Rosenstock, 01 
 
 N. Y. 583, .... 1124 
 Greenup v. Barbee, 1 Bibb, 
 
 320, - - - - 72, 73, 458 
 Greenwald v. Kaster, 86 Pa. 
 
 St. 45, - - - - 386, 387 
 Greenwood's Case, 3 De G. M. 
 
 & G. 470, ... 72, 323 
 Greenwood v. Brodhead, 8 
 
 Barb. 593, .... 929 
 
 V. Sheldon, 31 Minn. 254, 219 
 
 Greer v. Bush, 57 Miss. 575, 650, 651 
 Gribbia v. Thompson, 28 111. 
 
 61, 1094 
 
 Gridley v. Conner, 2 La. Ann. 
 
 87, - . - 786, 907, 933, 993 
 
 V. Dole, 4 N. Y. 486, 851, 868, 
 
 878, 881 
 Grieff v. Boudousquie, 18 La. 
 
 Ann. 631, .... 91 
 
 V. Kirk, 15 La. Ann. 320, 1086 
 
 V. Kirk, 17 La. Ann. 25. - 653 
 
 Grioner v. Ulerey, 20 Iowa, 
 
 206, 1143 
 
 Grier v. Hood, 25 Pa. St. 430, - 377 
 Griffey v. Northcutt, 5 Heisk. 
 
 746, 294, 297, 300, 769, 770, 773 
 
 Griffie v. Maxey, 58 Tex. 210, 286, 
 560, 1131, 1132, 1133 
 Griffin, Ex parte, 3 Ont. App. 
 
 1, 513 
 
 Ixxxvi
 
 Gel J 
 
 TABLE OF CASES. 
 
 [Gwi. 
 
 Griffin v. Cranston, 10 Bosw. 1 ; 
 
 1 id. 281, ... - 562 
 V. Doe ex dem. Stoddard, 
 
 12 Ala. 783, - - - - 1145 
 
 V. Orman. 9 Fla. 22, - 551, C39 
 
 V. Samuel, 6 Mo. 20, - - 45(5 
 
 V. Spence, 69 Ala. 393, 714, 717 
 
 Griffith V. Buck, 13 MJ. 102, 551, 
 
 552, 638, 824 
 V. Buffuni, 22 Vt. 181 (54 
 
 Am. Dec. 64), 32, 156, 157, 445 
 
 V. Carter, 8 Kan., 565, - 175 
 
 V. Chew, 8 S. & R. 17, - 900 
 
 V. Vanheythuysen, 9 
 
 Hare, 85, - - - - 923 
 
 V. Willing, 3 Bin. 317, - 899 
 
 Griffitlis V. Griffitlis, 3 Hare, 
 
 587, 710 
 
 Griggs V. Clark, 23 Cal. 427, - 181, 
 
 770, 772, 773, 907, 908 
 
 Grigsby v. Nance, 3 Ala. 347, 875, 
 
 876, 880 
 Grim's Appeal, 105 Pa. St. 375, 735, 
 739, 743, 745, 923 
 Grinnan v. Baton Rouge Co. 7 
 
 La. Ann. 638, - - - 618 
 Grissom v. IMoore, 106 Ind. 296, 290, 
 
 297 
 Grisvvold v. Griswold, 14 How. 
 
 Pr. 446, .... 1086 
 
 V. Haven, 25 N. Y. 595, 473 
 
 V. Hill, 1 Paine, C. C. 390, 941 
 
 V. Waddington, 16 Johns. 
 
 438 (affg. 15 id. 57), 325, 570, 581, 
 
 582, 610 
 Groenendyke v. Coffeen, 109 
 
 111, 325, - 952, 954, 955, 963 
 
 Groesbeck v. Brown, 2 How. 
 
 Pr. 21, 3S0 
 
 Grossini v. Perazzo, 66 Cal. 
 
 545, ... - 753, 935 
 Grosvenor v. Austin, 6 Oh. 103 
 
 (25 Am. Dec. 743), - 828, 832 
 
 V. Lloyd, 1 Met. 19, 152, 157, 
 
 608 
 Grove v. Fresh, 9 Gill & J. 
 
 280, .... 764,900 
 
 Grove v. Miles, 85 111. 85, - 761 
 Groves v. Tallraan, 8 Nev. 178, 936 
 
 Grozier v. Atwood, 4 Pick. 234, 
 
 59 
 
 Grubb V. Cottrell, 62 Pa. St. 23, 353, 
 
 903, 1038 
 Grund v. Van Vleck, 69 111. 
 
 478, .... 407, 469 
 Guckenheimer v. Day, 74 Ga. 
 
 1, 1123 
 
 Guerand v. Dandelet, 32 Md. 
 
 561, 676 
 
 Guice V. Thornton, 76 Ala. 466, 84, 
 322, 323, 362, 308, 440, 483, 1140 
 Guidon v. Robsoo, 2 Camp. 
 
 302, .... 1023, 1067 
 Guild V. Belcher, 119 Mass. 257,' 347, 
 
 507, 509 
 
 V. Leonard, 18 Pick. 511, 560 
 
 Guillou V. Peterson, 89 Pa. St. 
 
 163 (rev. S. C. 9 Phila. 225), - 483 
 Guimond v. Nast, 44 Tex. 114, 1086 
 Guion V. Trask, 1 DeG. & J. 
 
 379, 185 
 
 Gulick 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, 347 
 
 Gullich V. Alford, 61 Miss. 224, 86 
 Gumbel v. Abrams, 20 La. 
 
 Ann. 568, - - - . 457 
 
 V. Koon, 59 Miss. 264. 155, 193 
 
 Gunn V. Central R. R. Co. 74 
 
 Ga. 509, .... 
 
 Gunnell v. Bird, 10 Wall. 304, 
 
 Gunter v. Jarvis, 25 Tex. 581, 
 
 V. Williams, 40 Ala. 561, 
 
 133 
 
 810, 
 
 812 
 
 725, 
 
 1057 
 
 416, 417 
 Guptil V. McFee, 9 Kan. 30, - 1131 
 Gurler v. Wood, 16 N. H. 539, 405 
 Gurr V. Martin, 73 Ga. 528, - 59 
 Guyton v. Flack, 7 Md. 398, - 824, 
 
 929, 1003 
 Gwin V. Selby, 5 Oh. St. 96, - 5G7 
 Ixxxvii
 
 Gwi.] 
 
 TABLE OF CASES. 
 
 [Hai» 
 
 Gwinn v. Rooker, 24 Mo. 290, 414, 
 
 416, 420 
 Gwynn v. Duffield, 66 Iowa, 
 
 708. 462 
 
 Gvger's Appeal, 62 Pa. St. 73 
 '(1 Am. Rep. 382), - 769, 770, 773, 
 785, 786, 791, 798, 927, 986, 987 
 Gjnne v. Estes, 14 Lea, 062, - 740 
 
 H. 
 
 Haas V. Roat, 16 Hun, 526 
 
 (affd. in 26 Hun, 633), - 
 V. Shaw. 91 Ind. 884 (46 
 
 47 
 139 
 567 
 
 Am. Rep. 607), - - - 
 Haben v. Haishaw, 49 Wis. 
 
 379, 
 
 Habershon v. Blurton, 1 De G. 
 
 & Sm. 121, - - 584, 928, 1103 
 Hacker v. Johnson, 66 Me. 21, 1105, 
 
 1107, 1111, 1112 
 Hackett v. Multnomah R'y Co. 
 
 12 Oregon, 134, - - - 133 
 Hackley v. Patrick, 3 Johns. 
 
 536, - . - . 699, 700 
 Hackwell v. Eustman, Cro. 
 
 Jac. 410, - - - . 739 
 
 Hadden v. Shortridge, 27 Mich. 
 
 212, .... 1140, 1158 
 Haddock v. Crocheron, 32 Tex. 
 
 276 (5 Am. Rep. 244), 623, 694, 695, 
 
 704 
 Haddon v. Ayres, 1 E. & E. 
 
 118, 879 
 
 Hafer, In re, 1 Bankr. Reg. 
 
 [147] 547, - - - - 1131 
 Had Held v. Jameson, 2 Munf. 
 
 (Va.) 53, .... 895 
 
 Hagar v. Graves, 25 Mo. App. 
 
 164, 1039 
 
 V. Mounts, 3 Blackf. 57 ; 
 
 id. 261, 347 
 
 V. Stone, 20 Vt. 106, 152, 1052 
 
 Haggart v. Allan, 4 Grant's 
 
 Ch. (Up. Can.) 36, - - 952 
 Haggerty v. Granger, 15 How. 
 
 Pr. 243, 338 
 
 Haggerty v. Johnston, 48 Ind. 
 
 41, - - - - 504, 634, 647 
 
 V. Juday, 58 Ind. 154, - 538 
 
 Hague V. Rolleston, 4 Burr. 
 
 2174, 583 
 
 Hahn v. St. Clair 'Sav. & Ins. 
 
 Co. 50 111. 456, - - - 1151 
 Haig v. Gray, 3 De G. & Sm. 
 
 741, 723 
 
 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 v. Halderman, 
 
 Hempst. C. C. 559, - 852, 858 
 Hale V. Brennan, 23 Cal. 511, 978, 
 
 .1136 
 V. Henrie, 2 Watts, 143 
 
 (27 Am. Dec. 289), - - 289 
 
 V. Plummer, 6 Ind. 121, 290, 
 
 297 
 
 V. Railroad, 60 N. H. 333, 405 
 
 V. Van Saun, 18 Iowa, 19, 1091 
 
 V. Wetmore, 4 Oh. St. 
 
 600, .... 11C8, 1169 
 
 V. Wilson, 112 Mass. 444, 871, 
 
 897 
 Haley v. Bellamy, 137 Mass. 
 
 357, 233 
 
 Halfhide v. Penning, 2 Bro. 0. 
 
 C. 336, 233 
 
 Hall, Ex parte, 1 Rose, 2; 17 
 
 Ves. 63 (latter is fuller), - 382, 
 
 680 
 
 , Ex parte, 3 Deac. 125, - 634, 
 
 843 
 V. Bainbridge, 1 M. & G. 
 
 42, 438 
 
 V. Barrows, 4 DeG. J. & 
 
 S. 150, - - 058, G03, 665, 675 
 
 V. Clagett, 48 Md. 233. 313, 765, 
 
 909, 953, 983 
 V. Cook, 69 Ala. 87, 450, 1051 
 
 Ixxxviii
 
 Hat..] 
 
 TABLE OF CASES. 
 
 [Han. 
 
 Hall V. Curzon, 9 B. «fe C. 646, 1169 
 
 r V. Edson, 40 Mich. 651, 43, 78 
 
 V. Hall, 13 Beav. 414; 20 
 
 id. 139 ; 3 Macn. & G. 79, 603, 988, 
 
 991 
 
 V. Hall, 3 McCord, Ch. 269. 825 
 
 V. Irons, 4 Up. Cau. C. P. 
 
 351, 385 
 
 V. Jones, 56 Ala. 493, 508, 519, 
 
 616, 621, 707 
 V. Lannin, 30 Up. Can. 
 
 C. P. 204, - - - 864, 806 
 
 V. Lanuing, 91 U. S. 160, 336, 
 
 377, 1086, 1089, 1090, 1092 
 
 V. Lonkey, 57 Cal. 80, 939, 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. 
 
 562), 346 
 
 V. Tay, 131 Mass. 192, - 650 
 
 V. Thayer, 12 Met. 130, - 75 
 
 Hallack v. March, 25 111. 48, - 336 
 Haller v. Willamowicz, 23 
 
 Ark. 566, 761, 770, 777, 898, 978, 
 
 979 
 Hallet V. Desban, 14 La. Ann. 
 
 529, 43 
 
 Hallett V. Cumston, 110 Mass. 
 
 29, 672 
 
 V. Cumston, 110 Mass. 33, 922 
 
 Halliday v. Bridewell, 36 La. 
 
 Ann. 238, .... 43 
 
 V. Carman, 6 Daly, 422, - 879 
 
 V. Doggett, 6 Pick. 359, - 1018 
 
 V. McDougall, 20 Wend. 
 
 81 (rev. in part, 22 id. 264), 1155, 
 
 1156, 1157 
 Halsey v. Norton, 45 Miss. 703 
 
 (7 Am. Rep. 745), 583, 753, 1026 
 
 V. Whitney, 4 Mason, 206, 383, 
 
 415 
 Halstead v. Shepard, 23 Ala. 
 
 558, 276, 401, 403, 689, 991, 1039 
 Halbted v. Schmelzel, 17 Johns. 
 
 80, - - - - 849, 865 
 
 Ham V. Hill, 39 Mo. 275, - G36, 637 
 Hambridge v. De la Crouee, 3 
 
 C. B. 742, - - - 377, 380 
 Hamer v. Giles, 11 Ch. D. 943, 987 
 .Haraersley v. Lambert, 2 
 Johns. Ch. 508, 529, 747, 749, 750, 
 
 925 
 Hamil v. Stokes, 4 Price, 161 ; 
 
 Dan. 20, - 595, 805, 807, 809 
 
 Hamill v. Hamill, 27 Md. 679, 589, 
 
 756, 999 
 
 v.Willett, 6 Bosw. 533, 105,547 
 
 Hamilton's Appeal, 103 Pa. St. 
 
 308, - * - - - - 377 
 
 Hamilton, lu re, 1 Fed. Rep. 
 
 800, - - 150, 838, 839, 845 
 
 V. Buxton, 6 Ark. 24, 456, 1051, 
 
 1068 
 
 V. Douglas, 46 N. Y. 218, 138 
 
 V. Einer, 20 La. Ann. 391, 447 
 
 V. Hodges, 30 La. Ann. 
 
 Pt. II, 1390, - - - 430 
 
 V. Phoenix Ins. Co. 106 
 
 Mass, 395, - - 319, 336, 427 
 
 V. Purvis, 2 Pa. 177, - 403 
 
 V. Smith, 5 Jur. N. S. 32, 89 
 
 V. Seaman, 1 Ind. 185, - 695 
 
 V. Summers, 12 B. Mon. 
 
 11 (54 Am. Dec. 509), 353, 361, 
 
 700, 737 
 Hammond v. Aiken, 3 Rich. 
 Eq. (S. Ca.) 119, - - 612, 619 
 
 658 
 949 
 380 
 
 ■ V. Douglas, 5Ves. 539, 
 V. Hammond, 20 Ga. 556, 
 V. Harris, 2 How. Pr. 115, 
 V. He ward, 11 Up. Can. C. 
 
 474 
 
 P. 261, 
 
 V. Heward, 20 Up. Can. 
 
 Q. B. 36, ... 474, 1094 
 
 V. Paxton, 58 Mich. 393, 295 
 
 V. St. John, 4 Yerg. 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, 722 
 
 Ixxxix
 
 Han.] 
 
 TABLE OF CASES. 
 
 [Hae. 
 
 Hancock v. Hintrager.CO Iowa, 
 
 374, .... 109,205 
 Handlin, Re, 12 Bankr. Reg. 
 
 49; 3Biss. 290, - - - 1131 
 
 V. Davis, 81 Ky. 34, - - 88 
 
 Hanff V. Howard, 3 Jones (N. 
 
 Ca.), Eq. 440, - - - 281 
 
 Hanger v. Abbott, 6 Wall. 533, 
 
 535, 582 
 
 Hankey v. Becht, 25 Minn. 
 
 212, .... 257, 259 
 V, Hammock, Buck, 210; 
 
 3 Madd. 138, .... GOO 
 Hanks v. Baber, 53 111. 292, - 770, 
 
 815, 888, 917 
 
 V. Hinson, 4 Porter (Ala.), 
 
 509, 285 
 
 Hauna v. Andrews, 50 Iowa, 
 
 462, 6G7 
 
 V. Flint, 14 Cal. 73, - - 43, GO 
 
 V. Wray, 77 Pa. St. 27, - 737, 
 
 1170 
 Hanson v. Dodge, 134 Mass. 
 
 273, 655 
 
 V. Eustace, 2 How. 053, . 2S5 
 
 V. Paige, 3 Gray, 239, 457, 754 
 
 Han way v. Robertshaw, 49 
 
 Miss. 753; R. v. H. 53 id. 713, 719 
 Hapgood V. Cornwell, 48 111. 
 
 64, - - - - 551. 553,500 
 Haralson v. Campbell, 63 Ala. 
 
 278, .... 1004, 1130 
 
 Harbour v. Reeding, 3 Mon- 
 tana, 15, ... - 303 
 Hardeman v. Tabler, 33 La. 
 
 Ann. 555, - . - . 457 
 Harding, Ex parte, 13 Ch. D. 
 
 557, 45oa 
 
 V. Foxcroft, 6 Me. 76, - 70, 71 
 
 V. Glover, 18 X^s. 281, - 995 
 
 V. Hagar, 03 Me. 515, 178, 2G:J 
 
 Hardy v. Blazer, 29 Ind. 226, - 504 
 
 V. Cheney, 42 Vt. 417, - 1050, 
 
 1151, 1152 
 
 V. Donellan, 33 Ind. 501, 409 
 
 V. Mitchell, 67 Ind. 4y5, 5G9, 
 
 825 
 
 Hardy v. Norfolk Mfg. Co. 80 
 
 Va. 404, . - 72,281,531,882 
 
 V. Overman, 36 Ind. 519, 569, 
 
 848, 1130 
 Hare, Ex parte, Deac. 16; 2 
 
 Jlont. & A. 478, - - - 263 
 Harferd v. Street, 46 Iowa, 
 
 594, 1091 
 
 Hargrave v. Conroy, 19 N. J. 
 
 Eq. 281, - - - 43, 49, 923 
 
 Hargreaves, Ex parte, 1 Cox, 
 
 440, - ' - - - - 837 
 Harkey v. Tillman, 40 Ark. 
 
 551, 278 
 
 Harlan v. Moriarity, 3 G. 
 
 Greene (Iowa), 486, - - 543 
 Harland v. Lilienthal, 53 N. Y. 
 
 438, 110 
 
 Harlow v. Rosser, 28 Ga. 219, 410 
 Haruian v. Johnson, 2 E. & B. 
 
 61 (rev. s. C, 3 Car. & K. 
 
 272), .... 329, 477 
 Harmon v. Clark, 13 Gray, 
 
 114, - 453, 553, 553, 838, 843 
 Harper, Ex parte, 1 De G. & 
 
 J. ISO, 249 
 
 V. Fox, 7 Watts & S. 143, 377 
 
 V. GodsL41, L. R. 5 Q. B. 
 
 433, 274 
 
 V. Lamping, 33 Cal. 641, 481, 
 
 810, 973, 974, 976 
 
 V. Wrigley, 48 Ga. 495, 383, 
 
 411, 435 
 Harrington v. Churchward, 29 
 
 L. J. Ch. 521 ; 6 Jur. N. S. 
 
 576 ; 8 W. R. 303, - - 923 
 V. Ilighara, 13 Barb. 6G0; 
 
 15 id. 534, ... - 336 
 Harris. Ex parte, 1 Rose, 437; 
 
 2 Ves. & B. 210, 830, 837, 833, 839 
 
 V. Farewell, 15 Beav. 31, 519, 
 
 523 
 
 V. Farwell, 13 Beav. 403, 828 
 
 V. Fleming. 13 Ch. D. 208, 907 
 
 V. Harris, 15 Ala. 710, - 860 
 
 V. Harris, 39 N. H. 45, - 849, 
 
 852, 861 
 
 xo
 
 Has.] 
 
 TABLE OF CASES. 
 
 [Hab. 
 
 Harris v. Hillegass, 54 Cal. 403, 49, 
 575, 589, 945, 952 
 v.^Lintlsay, 4 Wash. C. C. 
 
 9S, id. 271, - - 520, 523 
 
 V. McGregor, 29 Cal. 124, 5 
 
 V. McLeoJ, 14 Up. Can. 
 
 Q. B. 1G4, - - - 349, 358 
 V, Miller, Meigs (Tenn.), 
 
 158 (33 Am. Dec. 13S), 205, 420, 438 
 
 V. Peabody, 73 Me. 2G2, 824, 
 
 825, 832, 833 
 
 V. Pearce, 5 111. App. 022, 437, 
 
 723 
 
 V. Visscher, 57 Ga. 229, - 1131 
 
 V. Wade, 1 Chit. 322, - 380 
 
 V. Wilson, 7 Wend. 57, - 701 
 
 Hairison, Ex parte, 2 Rose, 70, 70 
 
 V. Armitage, 4 Mad. 143, 910, 913 
 
 V. Bevington, 8 C. & P. 
 
 703, ... - 
 V. Close, 2 Johns. 448, 
 
 V. Dewey, 40 Mich. 173, - 
 
 V. Farrington, 36 N. J. 
 
 Eq. 107(affa. 37 id. 316), 
 V. Farrington, 38 N. J. 
 
 Eq. 1, 
 
 -v. Farrington, 38 N. J. 
 
 1033 
 385 
 932 
 
 Eq. 358, ... - 
 
 V. Farrington, 40 N. J. 
 
 Eq. 553, - - - - 
 V. Fitzhenry, 3 Esp. 238, 
 
 940 
 
 964 
 
 964 
 
 984 
 1016, 
 1023 
 
 V. Gardner, 2 Madd. 198, 603 
 
 V. Jackson, 7 T. R. 207, 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, 524 
 
 V. Righter, 11 N. J. Eq. 
 
 389, .... 924, 925 
 
 V. Sterry, 5 Cranch, 289, 340 
 
 Harrod v. Hamer, 32 Wis. 16?, 3 
 
 Harry man v. Roberts, 52 Md. 
 64-77 ; 20 Am. Law Reg. (N. 
 y.)873, - - - - 331 
 
 Harshfield v. aaflin, 25 Kan. 
 
 100(37 Am. Rep. 237), - - 1101 
 Hart's Case, 1 Ch. D. 307, - 459 
 Hart V. Alexander, 7 C. & P. 
 
 746, - - - 520, 010, 621, 622 
 V. Alexander, 2 M. & W. 
 
 484, 505, 520, 523, 616, 617, 621, 622 
 
 V. Anger, 3S La. Ann. 341, 598 
 
 V. Clarke, 6 DeG. M. & G. 
 
 232 (reverses 19 Beav. 349) ; 
 
 affd. in Clarke V. Hart, 6 H. 
 
 L. C. 633, - - - 241, 785 
 V. Clarke, 6 H. L. Cas. 633 
 
 (aflfg. 6 DeG. M. & G. 232), 574 
 
 V. Kelley, 83 Pa. St. 286,- 23, 
 
 47, 48, 507, 510, 511 
 
 V. Long, 1 Rob. (La.) 83, 696 
 
 V. Tomlinson, 2 Vt. 101, 507, 557 
 
 V. Withers, 1 Pa. 285 (21 
 
 Am. Dec. 382), - - 421, 422 
 
 Y. Woodruff, 24 Hun. 510, 700 
 
 Hartan v. Eastern R. R. 114 
 
 66 
 423 
 
 272 
 
 886 
 
 1045 
 
 825 
 
 Mass. 44, ' 
 Harter v. More, 5 Blackf. 3G7, 
 Hartford F. Ins. Co. v. Ross, 
 
 23 Ind. 179, ... - 
 Hartley v. Manton, 5 Q. B. 247, 
 
 V. White, 94 Pa. St. 31, - 
 
 Hartman's Appeal, 107 Pa. 327, 
 Hartman v. Woehr, 18 N. J. 
 
 Eq. 383, 86, 577, 578, 589, 591, 780, 
 
 781 
 Hartness v. Thompson, 5 Johns. 
 
 100, 148 
 
 Hartnett v. Fegan, 8 Mo. App. 
 
 1, 300, 734 
 
 Hartung v. Siccardi, 3 E. D. 
 
 Smith, 560, - - - - 1080 
 Hartz V. Scbrader, 8 Ves. 317, 741, 
 
 99'J, 1000, 1003 
 Harvey V. Childs, 28 Oh. St. 
 
 319 (22 Am. Rep. 387), 23, 47 
 
 V. Crickett, 5 M. & S. 336, 755 
 
 V. McAdams, 32 Mich. 472, 334, 
 
 405 
 V. Penny backer, 4 Del. Ch. 
 
 445, .... 384, 909 
 
 zci
 
 Har.] 
 
 TABLE OF CASES. 
 
 [Hay. 
 
 Harvey v. Varney, 98 Mass. 118, 114, 
 
 123, 921 
 
 V. Varney, 104 Mass. 436, 766, 
 
 789, 9S3, 1005 
 Harwood v. Jarvis, 5 Sneed, 
 
 375, 399 
 
 Hasbrouck v. Childs, 3 Bosw. 
 
 105, - - - 813, 816, 818 
 
 Haseltine v. Madden, 7 Rich. 
 
 (S. Ca.) L. 16, - - - 1162 
 Haskell v. Adams, 7 Pick. 59, 72, 
 
 V. Cliampion, 30 Mo, 136, 201 
 V. Moore, 29 Cal. 437, 239, 850, 
 
 881 
 V. Vaughn, 5 Sneed, 618, 851 
 
 Haskins v. Alcott, 13 Oh. St. 
 
 210, ... - 1061, 106G 
 
 V. Burr, 106 Mass. 48, - 81 
 
 V. D'Este, 133 Mass. 356, 174, 
 
 191, 1073 
 
 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, 10.)2 
 V. Wotherspoon, 2 Rich. 
 
 (S. Ca.) Eq. 395, - - 8, 538 
 Hasselman v. Douglass, 52 
 
 Ind. 252, - - - 629, 632 
 
 Hastings v. Hopkinson, 28 Vt. 
 
 108, - - 95, 323, 324, 325 
 
 Hastings Nat. Bank v. Hib- 
 
 bard, 48 Mich. 452, 100, 107, 196 
 Hatch V. Wood, 43 N. H. 633, 1023, 
 
 1054 
 Hatchett v. Blanton, 72 Ala. 
 
 423, - - - 281, 285, 288 
 Hathe way's Appeal, 52 Mich. 
 
 112, - - - 317, 368, 700 
 Hatt, In re, 7 Up. Can. L. J. 
 
 103, - - - - 175, 176 
 Hatton V. Stewart, 2 Lea, 233, 694, 
 
 695, 698 
 Hatzenbuhler v. Lewis, 51 
 
 Mich. 585, .... 1070 
 
 Haughey v. Strickler, 2 Watts 
 
 & S. 411, ... - 1154 
 
 Havana, Rantoul & Eastern R. 
 
 R. V. Wash, 85 111. 58, - - 1019 
 Haven v. Goodel, 1 Disney, 26, 694, 
 
 695 
 
 V. Wakefield, 39 III. 509, 900, 
 
 905 
 Havens v. Hussey, 5 Paige, 80, 338, 
 
 583 
 Hawes v. Dun ton, 1 Bailey 
 (S. Ca.), 146 (19 Am. Dec. 
 
 663), 352 
 
 v. Tillinghast, 1 Gray, 289, 71 
 
 V. Waltham, 18 Pick. 
 
 451, 1103 
 
 Hawkeye Woolen Mills v. 
 
 Conklin, 26 Iowa, 422, - 560, 824 
 Hawkins v. Appleby, 2 Sandf. 
 
 421, - - -^ - - 472 
 
 V. Hastings Bank, 1 Dil- 
 lon, 462; 4 Bankr. Reg. 108, 416. 
 
 418 
 
 V. Lasley, 40 Oh. St. 37, - lUOG 
 
 V. Lee, 8 Lea, 42, - - 700 
 
 V. Mclntire, 45 Vt. 496, 43, 59, 
 
 66 
 Hawks V. Hinchcliff, 17 Barb. 
 
 492, 53S 
 
 Hawkshaw v. Parkins, 2 
 
 Swanst. 539, - - - 383, 415 
 Hawley v. Atherton, 39 Conn. 
 
 309, 1126 
 
 V. Dixon, 7 Up. Can. Q. B. 
 
 218, 45 
 
 V. Hurd, 56 Vt. 617, . 1068 
 
 V. Keeler, 62 Barb. 231 
 
 (affd. 53 N. Y. 114), - . 68 
 
 Hawtayne v. Bourne, 7 M. & 
 W. 595, 320 
 
 Hayden, Ex parte, 1 Brown's 
 Ch. 453, 832 
 
 V. Cretcher, 75 Ind. 108, 693, 
 
 694 
 
 V. Hill, 52 Vt. 259, - - 655 
 
 Haydon v. Crawford, 8 Up. 
 Can. Q. B. (old ser.) 583, - 45, 59 
 xcii
 
 Hay.] 
 
 TABLE OF CASES. 
 
 [Heu 
 
 Hayes v. Baxter, 65 Barb. 181, 8G7 
 
 V. Bement, 3 Sandf. 394, - 906 
 
 V. Fish, 3G Oh. St. 498, - 855 
 
 V. Heyer, 3 Sandf. 293, - 338 
 
 V. Heyer, 4 Sand. Ch. 485, 931 
 
 V. Heyer, 35 N. Y. 326, - 900 
 
 V. Knox, 41 Mich. 529, - 534 
 
 Hayraan, Ex parte, 8 Ch. D. 1 1, 105, 
 
 155, 840 
 Hayner v. Crow, 79 Mo. 293, - 364 
 Haynes v. Carter, 13 Heisk. 7, 612, 
 
 616, 617 
 
 V. Sechrest, 13 Iowa, 455, 292, 
 
 416, 417, 430 
 Hay's Appeal, 91 Pa. St. 205, - 284, 
 286, 794, 797, 1171 
 Haythorn v. Lawson, 3 C. & 
 
 P. 196, 1031 
 
 Hayward v. French, 12 Gray, 
 
 453, - - - 848, 353, 1170 
 Haywood v. Harmon, 17 111. 
 
 477, - - - 336, 389, 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. & 
 
 For. 259, - - - 882, 884 
 Head v. Goodwin, 87 Me. 181, 471 
 
 V. Horn, 18 Cal. 211, - 567 
 
 Headley v. Shelton, 51 Ind. 
 
 388, 629 
 
 Health v. Percival, 1 P. Wms. 
 
 682; IStra. 403, - - - 619 
 Heap V. Dobson, 15 C. B. N. S. 
 
 460, 80 
 
 Heartt v. Corning, 3 Paige, 566, 978, 
 
 979 
 
 V. Walsh, 75 111. 200, - 383, 
 
 682, 709, 715, 726 
 Heath v. Goslin, 80 Mo. 310 (50 
 
 Am. Eep. 505), ... 75 
 
 V. Sansom, 2 B. & Ad. 172, 362, 
 
 570, 577, 585, 597, 608, 694 
 
 V. Waters, 40 Mich. 457, 309, 
 
 738, 743, 770, 775, 789 
 
 Heathcot v. Ravenscroft, 6 N. 
 
 J. Eq. 113, - - - 995, 998 
 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, 825 
 
 Hedden v. Van Ness, 2 N. J. L. 
 
 84, 749 
 
 Hedge & Horn's Appeal, 63 Pa. 
 
 St. 273, .... 72, 74, 83 
 Hedges v. Armistead, 60 Tex. 
 
 276, 1086 
 
 Hedley v. Bainbridge, 3 Q. B. 
 
 316, .... 329, 343 
 Hedrick v. Osborne, 99 Ind. 
 
 143, 1121 
 
 Heeuan v. Nash, 8 Minn. 407, 199, 
 
 441 
 Hefferman v. Brenham, 1 La. 
 
 Ann. 146, - . - 1059, 1062 
 Heffron v. Hanaford, 40 Mich. 
 
 305, . 333, 349, 3(32, 369, 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. NeviU, L. R. 4 C. P. 
 354, - 750, 1044, 1046, 1048 
 
 Heimstreet v. Howland, 5 
 Den. 68, ... 45, 59 
 
 Heineman v. Hart, 55 Mich. 
 64, 566 
 
 Heintz v. Cahn, 29 III. 808, - 1072 
 
 Heirn v. McCaughan, 33 Miss. 
 17, - - - ■ - - - 462 
 
 Heise v. Barth, 40 Md. 259, - 33 
 
 Hellman v. Reis, 1 Cint. Su- 
 perior Ct. Rep. 30 (affd. in 
 25 Oh. St. 180), - . - 761 
 
 Hells V. Coe, 4 McCord, L. 
 136, 383 
 
 xciu
 
 HEL.J 
 
 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 
 Helbby v. Mears, 5 B. & C. 
 
 504, 508 
 
 Henderson v. Barbee, 2 
 
 Blatchf. 26, - - - 416, 419 
 V. Carveth, 16 Up. Can. 
 
 Q. B. 324, - - - 349, 362 
 V. Haddon, 12 Rich. (S. 
 
 Ca.) Eq. 393, - - 338, 566, 1109 
 V. Hudson, 1 Munf. (Va.) 
 
 510, ----- 303 
 
 V. Nicholas, 07 Cal. 152, - 404 
 
 V. Stetter, 31 Kan. 56, - 1029 
 
 V. Wadsworth, 115 U. S. 
 
 2G4, 507 
 
 Hendrick v. Gunn, 35 Ga. 234, 57 
 Hendrie v. Berkowitz, 37 Cal. 
 
 113, - - 349, 358, 362, 367 
 Hendry v. Turner, 32 CIi. D. 
 
 855, - . . . 610, 618 
 
 Henley v. Soper, 8 B. «& C. 16; 
 
 2 Man. & Ry. 166. - - 800 
 
 Heun V. Walsh, 2 Edw. (N. Y.) 
 
 Ch. 129, 594 
 
 Hennegin v. Wilcoxon, 13 La. 
 
 Ann. 283, - - - . 851 
 V. Wilcoxon, 13 La. Ann. 
 
 576, 852 
 
 Hennessy v. Westei'n Bank, 6 
 
 Watts & S. 300 (40 Am. Dec. 
 
 560), - • - - - 338, 418 
 Henning v. Raymond, 35 Minn. 
 
 229, 1008 
 
 Henry v. Anderson, 77 Ind. 
 
 361, - - 173, 184, 288, 375 
 
 V. Bassett, 75 Mo. 89, 181, 589, 
 
 770, 780 
 
 V. Jackson, 37 Vt. 431, 76, 211, 
 
 760, 907 
 V. Mahone, 23 Mo. App. 
 
 83, 708 
 
 V. Willard, 73 N. Ca. 35, 1151 
 
 Henry County v. Gates, 26 Mo. 
 
 315, - - - 414, 418, 421 
 
 Henshaw v. Root, 60 Ind. 220, 1074, 
 
 1145 
 Henslee v. Cannefex, 49 Mo. 
 
 295, 831 
 
 Hepburn, In re, 14 Q. B. D. 
 
 3U4, 843 
 
 Heran v. Hall, 1 B. Mon. 159 
 
 (35 Am. Dec. 178), - 43, 819 
 
 Herbert v. Hanrick, 16 Ala. 
 
 581, . . - - 292, 417 
 
 V. Hanrich, 16 Ala. 289, - 416 
 
 V. Odlin, 40 N. H. 267, 391, 392 
 
 Hercy v. Birch, 9 Ves. Jr. 357, 1011 
 Herd v. Delp, 1 Heisk. 530, - 731 
 Herfoot v. Cramer, 7 Colorado, 
 
 483, 057 
 
 Herkimer, The, Stew. Adm. 
 
 23, 2 
 
 Hermanos v. Duvigneaud, 10 
 
 La. Ann. 114, - -61,69,343 
 Heroy v. Van Pelt, 4 Bosw. 60, 520 
 Herrick, Re, 13 Bankr. Reg. 
 
 312, . - - 205, 439, 535 
 
 V.Ames, 8 Bosw. 115, - 790 
 
 Herriott v. Kersey, G9 Iowa, 
 
 111, 901 
 
 Hershfield v. Claflin, 25 Kan. 
 
 166 (37 Am. Rep. 237), - 584, 1105 
 Hersoni v. Henderson, 3 Fos- 
 ter (23 N. H.), 498, 265, 439, 445 
 Herty v. Clark, 46 Ga. C49, - 959 
 Herzog v. Sawyer, 61 Md. 344, 416, 
 
 421 
 Hesham, Ex parte, 1 Rose, 146, 837 
 Heshion v. Julian, 83 Ind. 57(3, 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, 347, 
 
 509 
 Heward v. Slagle, 52 111. 336, 742 
 Hewes v. Bayley, 20 Pick. 96, 1039 
 
 V. Parkman, 20 Pick. 90, 428, 
 
 430 
 Hewitt V. Kuhl, 25 N. J. Eq. 
 
 24, 850 
 
 xciv
 
 Hew.J 
 
 TABLE OF CASES. 
 
 [HiN. 
 
 Hewitt V. Rankin, 41 Iowa, 35, 291, 
 
 298 
 v. Sturdevant, 4 B. Mon. 
 
 4.j3, - - 70, 290, 401, 822 
 
 Heydon v, Heydon, 1 Salk. 
 
 392, 1100 
 
 Heye v. Bolles, 2 Daly, 231 ; 33 
 
 How. Pr. 266, - - 562, 566 
 Heyhoe v. Binge, 9 C. B. 431, 2, 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. 101, .... 10^6 
 Hibbert v. Ilibbert, cited in 
 
 Collyer on Partnership, § 203, 1013 
 Kibbler v. De Forest, 6 Ala. 
 
 92, 349, 362 
 
 Hickman v. Cox, 3 C. B. N. S. 
 
 523, 19 
 
 V. Kunkle, 27 Mo. 401, 329, 343, 
 
 344, 361, 374 
 V. Reineking, 6 Blackf. 
 
 387, 347 
 
 Hicks V. Cram, 17 Vt. 449, - 109, 
 
 1052. 11.53, 1155 
 
 V. Mauess, 19 Ark. 701, - 1051 
 
 V, Russell, 72 111. 230, 341, 615, 
 
 626 
 
 V. Wyatt, 23 Ark. 55, - 503 
 
 Higdon V. Thomas, 1 Har. & 
 
 G. (Md.) 139, - - - - 1020 
 Higgins, E.x parte, 3 De G. & 
 
 J. 33, 535 
 
 V. Armstrong (Colorado), 
 
 10 Pac, Rep. 232, - - 329, 374 
 V. Bailey, 7 Robt. (N. Y.) 
 
 613, - - - - - 1002 
 
 V. Rector, 47 Tex. 361, 749, 826, 
 
 828, 832 
 Higginson v. Air, 1 Desaus. 
 ' 427, - - - 994, 999, 1003 
 High V. Lack, Phil. (N. Ca.) 
 
 Eq. 175, - 276, 408, 991, 9U6 
 
 riill. Ex parte, 2 B. &P. 191, 
 
 note, - - - - 832, 833 
 
 a 
 
 Hill V. Beach, 12 N. J. Eq. 31. 6, 820, 
 821, 813, 845, 917, 1103 
 V. Bellhouse, 10 Up. Can. 
 
 C. P. 122, ... 23, 88 
 
 V. Hill, 55 L. T. N. S. 709, 677 
 
 V. Matta, 12 La. Ann. 179, 770 
 
 V. McPherson, 15 Mo. 204, 882, 
 
 884 
 
 V. Marsh, 46 Ind. 218, - 1027 
 
 V. Palmer, 56 Wis. 123 (43 
 
 Am. Rep. 703), - 870, 872, 889 
 
 V. Trainer, 49 Wis. 537, - 534 
 
 V. Treat, 67 Me. 501, - 733 
 
 V. Voorheis, 22 Pa. St. 68, 439 
 
 V. Wiggin, 31 N. H. 292, 186, 
 
 1102, 1105, 1106 
 Hilliard v. EifTe, 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. 
 
 Dec. 286), - 1019, 1020, 1022 
 
 Hillman v. Moore, 3 Tenn. Ch. 
 
 454, ... - 105, 155 
 
 Hillock V. Traders' Ins. Co. 54 
 
 Mich. 531, - - - - 409 
 Hills V. Bailey, 27 Vt. 548, 779, 854 
 
 V. McRae, 9 Hare, 297, - 748- 
 
 V. Nash, 1 Oh. 594, - - 930 
 
 V. Ross, 3 Dall. 331, - 380- 
 
 Hilton V. McDowell, 87 N. Ca. 
 
 364, - - - 331, 332, 1151^ 
 V. Vanderbilt, 82 N. Y. 
 
 591, 683 
 
 Himelright v. Johnson, 40 Oh. 
 
 St. 40, - - - - 347, 363 
 Hinds, Ex parte, 3 De G. & Sm. 
 
 613, - - - 201, 287, 838 
 
 Hine v. Beddome, 8 Up. Can. 
 
 C. P. 381, 507, 510, 511, 512, 516 
 Hines v. Driver, 71 Ind. 125, - 657 
 
 V. Kimball, 47 Ga. 587, - 1123 
 
 Hinkle v. Reid. 43 Ind. 390, - 635 
 
 Hiiiklcy V. Gilligan, 84 Me. 
 
 101, 701 
 
 xcv
 
 HiN.] 
 
 TABLE OF CASES. 
 
 [Hoo 
 
 Hinkley v. St, Anthony's Falls 
 Water Power Co. 9 Minn. 55, 1137 
 
 Hinnian v. Littell, 23 Mich. 
 484, 99 
 
 Hinton v. Law, 10 Mo. 701, - 70 
 
 V. Odenheimer, 4 Jones' 
 
 Eq. 400, .... 531 
 Hirley v. Walton, 63 111. 260, - 59 
 Hirsch v. Adler, 21 Ark. 838, - 933 
 V. Im Thurn, 4 C. B. N. S. 
 
 509, 233 
 
 Ilirth V. Pfeifle, 42 Mich. 31, - 1125 
 Iliscock V. Phelps, 49 N. Y. 
 
 97 (below, 2 Laos. 106), 184, 185, 
 187, 290. 291, 295, 822 
 Hitchcock V. St. John, Hoff. 
 
 Ch. 511, . ... 338 
 
 Hitchens v. Congreve, 1 R. & 
 
 M. 150, 912 
 
 Hitchicgs 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 
 nixon V. Pixley, 15 Nev. 475, - 621, 
 
 622, 624, 628 
 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, 
 
 521, 83, 1002 
 
 V. Howard, 9 Mass. 304, - 629 
 
 Hobbs V. McLean, 117 U. S. 
 
 567, Ill, 822 
 
 V. Memphis Ins. Co. 1 
 
 Sneed (Tenii.), 444, - - 273 
 
 V. Wilson, 1 W. Va. 50, - 510, 
 
 565, 634, 635 
 Hoboken Bank v. Beckman, 36 
 
 N. J. Eq. 83 (affd. 37 id. 331), 331 
 Hobson V. Porter, 2 Colorado, 
 
 28, 416 
 
 Hockless V. Mitchell, 4 Esp. 86, 415 
 Hockwell V. Eustman, Cro. 
 
 Jac. 415, - - - - 923 
 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. 215, - 43 
 
 V. Iloleraan, 1 Dana, 50, - 184, 
 
 820, 8-2 
 
 V. Kimball, 49 Iowa, 577, 
 
 10-9 
 V. Ninth Nat. Bk. 54 Md. 
 
 406, - - 317, 321, 350, 430 
 V. Parker, 17 Vt. 242 (44 
 
 Am. Dec. 331), - - - 785 
 Hodgkins v. Merritt, 53 Me. 
 
 208, 726 
 
 Hodgkinson, Ex parte, 19 Ves. 
 
 291, - - - 155,382,831 
 
 Hodgman v. Smith, 13 Barb. 
 
 303, 43 
 
 Hodgson, Ex parte, 2 Brown's 
 
 Ch. 5, - - - - 835, 834 
 
 , III re, 31 Ch. D. 177, 539, 748 
 
 V. Baldwin, 05 111. 533, 73, 76, 
 
 458 
 Hoeflinger v. Wells, 47 Wis. 
 
 628, - - - 440, 533, 524 
 
 Huffman v. ^tna F. Ins. Co. 
 
 33 N. y. 4U5 (affg. 1 Robt. 
 
 501; 19 Abb. Pr. 235), - 272, 273 
 
 V. Porter, 2 Brock. 158, - 296 
 
 Hogan V. Calvert, 21 Ala. 194, 036, 
 
 637, 879 
 
 V. Reynolds, 8 Ala. 59, - 317, 
 
 372, 382, 44vi 
 V. Reynolds, 21 Ala. 56 (56 
 
 Am. Due. 336), - - - 531 
 Hogarth v. Latham, 3 Q. B. D. 
 
 643, ----- 341 
 
 Hogeboom v. Gibbs, 88 Pa. St. 
 
 235, 1168 
 
 Hogendobler v. Lyon, 12 Kan. 
 
 276, 
 
 685, 689, 1055 
 
 XCVl
 
 Hoa.] 
 
 TABLE OF CASES. 
 
 [HOL. 
 
 Hogg V. Ashe, 1 Hay w. (N. Ca.) 
 471 ; S. C. Cam. & N. 3, 718, 723, 
 
 724, 731 
 
 V. Orgill, 34 Pa. St. 344, - 361, 
 
 700 
 
 V. Skeen, 18 C. B. N. S. 
 
 426, 362 
 
 Hogle V. Lowe, 12 Nev. 286, - 2S1, 
 
 286, 291 
 Hogarth V. Wherley, L. R. 10 
 
 C. P. 630, - ... 382 
 Hoile V. York, 27 Wis. 209, - 87 
 Holbrook, Re, 2 Low. 259, 346, 453. 
 
 842 
 
 V, Chamberlin, 116 Mass. 
 
 155, - - - 292. 416, 417 
 
 V. Lackey, 13 Met. 132 (46 
 
 Am. Dec. 726). - 718, 722, 723 
 
 V. Oberne, 56 Iowa, 324, - 43 
 
 V. St. Paul F. & M. Ins. 
 
 Co. 25 Minn. 229, - - - 5, 6 
 
 389 
 
 V. Wight, 24 Wend. 169, 
 
 Holdane v. Butterworth, 5 
 
 Bosw. 1, - - 608, 622, 623 
 
 Holdeman v. Knight, Dallam 
 
 (Tex.), 556, - - - - 417 
 Holden v. Bloxura, 35 Miss. 
 
 381, .... 200, 435 
 
 V. French, 68 Me. 241, - 59 
 
 V. McFaul, 21 Mo. 215, - 508 
 
 V. McMakin, 1 Pars. Sel. 
 
 Cas. (Pa.) 270, - - 658, 1001 
 V. Peace, 4 Ired. (N. Ca.) 
 
 Eq. 223, - - 783, 787, 793 
 
 Holderness v. Shackela, 8 B. & 
 
 C. 162, - - - - 753, 845 
 Holdrege v. Gwynne, 18 N. 
 
 J. Eq. 26, - - - 545, 790 
 Holdridge v. Farmers' & Mech. 
 
 B'k, 16 Mich. 66, - - - 387 
 Holdsworth, Ex parte, 1 M. D. 
 
 & D. 475, - ... 323 
 Hoi i field V. White, 52 Ga. 567, 61 
 Holkirk v. Holkirk, 4 Madd. 
 
 50, 383, 1027 
 
 IloUaday v. Elliott, 3 Oregon, 
 
 340, .... 591, 936 
 
 xcvii 
 
 Holladay v. Elliott, 8 Oregon, 
 
 84, - - - - 572, 593, 796 
 Holland v. Drake, 29 Oh. St. 
 441, ... - 338, 339 
 
 V. Fuller, 13 Ind. 195, 184, 731 
 
 V. King, 6 C. B. 727, - 249 
 
 V. Long, 57 Ga. 36, - 96, 156, 
 
 201, 444, G08 
 
 V. Teed, 7 Hare, 50, - 649 
 
 HoUembaek v. More, 44 N. Y. 
 
 Superior Ct. 107, - - - 482 
 Hoi I is V. Staley, 3 Baxter, 167, 551 
 Hollister. Re, 3 Fed. Rep. 452, 825 
 
 V. Barkley, 11 N. H. 501, 764 
 
 Holloway v. Brinkley, 42 Ga. 
 
 236, 59 
 
 V. Turner, 61 Md. 217, 335, 692, 
 
 785, 786, 935, 949 
 Hoi man 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. 
 
 218, - - - 18. 52, 154, 747 
 
 Holmes' Appeal, 79 Pa. St. 279, 743 
 Holmes v. Bigelow, 3 Desaus. 
 
 (S. Ca.) 497, ... - 761 
 
 V. Brooks, 68 Me. 416, - 733, 
 
 1170 
 V. Burton, 9 Vt. 252 (31 
 
 Am. Dec. 621), - 439, 445, 446 
 V. Caldwell, 8 Rich. (S. 
 
 Ca.) L. 247, ... - 507 
 V. D'Camp, 1 Johns. 34 (3 
 
 Am. Dec. 293), - - 719, 722 
 V. Hawes, 8 Ired. (N. Ca.) 
 
 Eq. 21, 5G1 
 
 V. Higgins, 1 B. & C. 74, 8!). 
 
 770. 8o4 
 
 V. Hubbard, 60 N. Y. 183, 644. 
 
 961 
 V. Kortlander (Mich.), 31 
 
 N. W. Rep. 532, - - - 429 
 
 V. McCray, 51 Ind. 358 
 
 (19 Am. Rep. 735), - - 302
 
 HOL.] 
 
 TABLE OF CASES. 
 
 [Bos. 
 
 Holmes v. McDowell, 15 Hun, 
 
 585 (affd. without opinion, 
 
 76 N. Y. 596), - - 935, 1006 
 
 V. McGee, 27 Mo. 597, - 297 
 
 V. Meuze, 4 A. & E. 127, 1109 
 
 V. Old Colony R. R. 5 Gray, 
 
 58, . - - . 43, 45, 46 
 
 V. Porter, 39 Me. 157, 231, 1139 
 
 V. Self, 79 Ky. 297, - 285 
 
 V. Shands. 27 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, 337, 323, 341, 364, 403, 
 
 408, 427, 607. 611, 631, 970 
 Holtgreve v. Wintker, 85 111. 
 
 470. .... 621, 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, - 1037 
 
 Homfray v. Fothergill, L. R. 
 
 1 Eq. 567, - ... 243 
 H jney. Ex parte, L. R. 7 Ch. 
 
 App. 178, .... 841 
 Honore v. Colmesnil, 1 J. J. 
 
 Mar. 506, 181, 182, 761, 764, 771. 
 
 963, 985, 1003 
 
 V. Colmesnil, 7 Dana, 199, 788, 
 
 976 
 Hood V. Aston, 1 Russ. 412, - 989 
 
 V. Riley, 15 N. J. L. 127, 411, 
 
 434 
 
 V. Spencer, 4 McLean, 168, 504, 
 
 636, 637, 879 
 Hook V. Stone, 34 Mo. 329, - 338 
 Hook ham v. Pottage, L. R. 8 
 
 Ch. 91; 27 L. T. N. S. 595; 
 
 21 W. R. 47, - 663, 664, 066, 669 
 
 Hooley v. Gieve, 9 Daly, 104; 
 
 9 Abb. New Cas. 271 (affd. 
 
 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, - - 523, 537, 538, 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. 260, 533, 524, 
 
 647 
 
 V. Forsyth, 14 Pa. St. 34, 70 
 
 V. Hull, 17 Md. 72, - - 1052 
 
 V. Johnson, 2 La. Ann. 
 
 842, 504 
 
 V. Watt, 13 111. 298, - 309 
 
 Hopkinson v. Smith, 1 Bing. 
 
 13; 7 Moo. 242, - - 110, 437 
 Hopley V. Wakefield, 54 Iowa, 
 
 711, 954 
 
 Hopper V. Lucas, 86 Ind. 43, 377, 
 
 379 
 Horback v. Huey, 4 Watts, 
 
 455, - - - 435, 544, 1024 
 
 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, 12, 442, 
 
 524, 747, 750 
 Horton's Appeal, 13 Pa. St. 67, 276, 
 
 570, 577, 585 
 Horton v. Child, 4 Dev. L. 460, 420, 
 
 422 
 Horton Mfg. Co. v. Horton 
 
 Mfg. Co. 18 Fed. Rep. 816, 671, 672 
 Hosack V. Rogers, 8 Paige, 229, 385 
 Hoskins v. Johnson, 24 Ga. 
 
 625, 1125 
 
 Iloskisson v. Eliot, 62 Pa. St. 
 
 393, 315, 319. 323, 338, 339, 341. 
 
 370, 377, 430, 433, 427, 523, 724, 749 
 
 XCVUl
 
 Hos.] 
 
 TABLE OF CASES. 
 
 [IIox. 
 
 Hosmer v. Burke. 26 Iowa, 353, 172 
 
 Hotchin v. Kent, 8 Mich. 526, 317, 
 
 323, 325, 426, 429 
 
 V. Secor, 8 Midi. 494, 523, 524 
 
 Hotclikiss V. English, 4 Hun, 
 
 369; 6 N. Y. Supreme Ct. 
 
 658, .... 43, 345 
 
 V. La(kl, 36 Vt. 593, - 448, 647 
 
 V. Ladd, 43 Vt. 345, - 448 
 
 Hot Springs R. R. v, Trippe, 
 
 42 Ark. 465 (48 Am. Rep. 65), 66, 
 
 134 
 Hottenstein v. Conrad, 9 Kan. 
 
 435, .... 993,1002 
 Hough V. Perkins, 2 How. 
 
 (Miss.) 724, - - - 636, 637 
 Houlton's Case. See Devaynes 
 
 V. Noble. 
 Hourquebie v. Girard, 2 Wash. 
 
 C. C. 212, - - - 799. 800 
 House V. Thompson, 3 Head 
 
 (Tenn.), 512, - - - 847, 848 
 riouseal's Appeal, 45 Pa. St. 
 
 484, .... 836, 837 
 
 Houser v. Irvine, 3 Watts & S. 
 
 345 (38 Am. Dec. 768), 695, 700, 705 
 
 V. Riley, 4.") Ga. 126, 482, 483 
 
 Houston V. Brown, 23 Ark. 
 
 333, - - - 849, 851, 1081 
 
 V. Stanton, 11 Ala. 412, - 13 
 
 Hovey v. Cassels, 30 Up. Can. 
 
 C. P. 230, .... 441 
 How V. Kane, 2 Pin. (Wis.) 
 
 531; 2 Chand. 223 (54 Am. 
 
 Dec. 152). - - 153. 155, 535 
 Howard, In re, 4 Bankr. Reg. 
 
 571, 841 
 
 V. France, 43 N. Y. 593, - 868 
 
 V. Henriques, 3 Sandf. 
 
 725, 674 
 
 V. Jones, 50 Ala. 67 (now 
 
 overruled), .... 1131 
 V. McLaughlin, 98 Pa. St. 
 
 440, 1103 
 
 V. Patrick, 38 Mich. 795, 850, 
 
 981, 1136 
 V Patrick, 43 Mich. 121, 1137 
 
 Howard v. Priest, 5 Met. 582, 281, 
 290, 293, 294, 823 
 V. Shaw, 91 Ind. 384; 46 
 
 Am. Rep. 607, - - - 136 
 
 V. Stephens, 52 Miss. 239, 136, 
 
 137 
 Howden, Ex parte, 2 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. Savery, 49 Barb. 403; 
 
 51 N. Y. 631, - - - 1022 
 V. Searing, 6 Bosw. 354; 
 
 10 Abb. Pr. 264, 657, 658, 664, 671 
 
 V. Shaw, 56 Me. 291, - 471 
 
 V. Snow, 3 Allen, 111, -1079. 
 
 1084 
 
 V. Thayer, 17 Pick. 91, - 623, 
 
 627, 1109 
 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, 592. 
 593, 595, 931, 932, 988 
 
 V. Howell, 15 Wis. [55J 60, 545. 
 
 790 
 
 V. McFarland, 2 Ont. App. 
 
 31, 416 
 
 V. Reynolds, 12 Ala. 128, 1024 
 
 V. Sewing Mach. Co. 13 
 
 Neb. 177, 347, 363, 446, 507, 509, 
 
 510, 511 
 V. Teel, 29 N. J. Eq. 490, 847 
 
 Howland v. Davis, 40 Mich. 
 
 545, 389 
 
 Howry v. Eppinger, 34 Mich. 
 
 29, 901 
 
 Howze V. Patterson, 53 Ala. 
 
 205 (25 Am. Rep. 607), 328, 341. 
 
 348, 370 
 Hoxie V. Carr, 1 Sumner, C. C. 
 
 173, 281, 291, 295, 297, 824, 932 
 V. Chaney, 143 Mass. 592, 663. 
 
 664, 669 
 
 xcix
 
 noY.] 
 
 TABLE OF CASES. 
 
 [Hun. 
 
 Hoyt V. Bonnett, 50 N. Y. 538 
 
 (rev. 58 Barb. 529), - - 750 
 V. Hoyc, 69 Iowa, 174, - 1131 
 
 V. Murphy, 18 Ala. 316, 504. 
 
 1081, 1083, 1169 
 
 V. Murphy, 23 Ala. 456, 1167, 
 
 1168 
 
 V. Robinson, 10 Gray, 371, 
 
 372, 1125 
 
 V. Sprague, 103 U. S. 613, 556, 
 
 739, 743, 952 
 
 V. Sprague, 12 Chic. Leg. 
 
 News, 25 (affd. 103 U. S. 613), 743 
 
 Hubbard v. Curtis, 8 Iowa. 1, 825, 
 
 928, 1109, nil, 1112 
 
 V. Galusha, 23 Wis. 398, 393 
 
 V. Guild, 1 Duer, 662, 241, 583, 
 
 754, 995, 1003 
 
 V. Matthews, 54 N. Y. 43 
 
 (13 Am. Rep. 562), 86, 349, 398, 
 
 707 
 
 V. Miller, 27 Mich. 15, - 676 
 
 V. Pace, 34 Ark. 80, - 761 
 
 V. Winsor, 15 Mich. 146, 176 
 
 Hubbardston Lumber Co. v. 
 
 Bates, 31 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, ... 6G4, 667, 669 
 V. Robinson, 4 M. & S. 
 
 475, 11G9 
 
 Hudson V. Simon, 6 Cal. 453, - 1147 
 Huff V. Cameron, 1 Up. Can. 
 
 Prac. Rep. 255, - - - 377 
 V. Lutz, 87 Ind. 471, 735, 825 
 
 Huffman v. Copeland, 86 Ind. 
 
 224, .... 139, 140 
 
 Hughes, Re, 16 Bankr. Reg. 
 
 464, ... - 
 
 V. Devlin, 23 Cal. 501, 
 
 V. Ellison. 5 Mo. 463, 
 
 V. Trahern, 64 111. 148, 
 
 V. Walker, 4 Blackf. 50, 
 
 Huguley v. Morris, 65 Ga. 666, 
 
 1131 
 976 
 338 
 723 
 1067 
 376, 
 408 
 
 Huiskamp v. Molina Wagon 
 
 Co. 121 U. S. 310 (reversing 
 
 S. C. as Moline Wagon Co. v. 
 
 Rummell, 2 McCrary, 807; 
 
 12 Fed. Rep. 658; 14 id. 155), 547, 
 559, 560, 561, 565 
 Hulett V. Fairbanks, 40 Oh. St'. 
 
 233, ... 82, 304. 311 
 
 Hull V. Garner, 31 Miss. 145, 377, 
 
 380 
 Hulse's Estate, 11 Weekly 
 
 Notes (Pa.), 499, - - 548,829 
 Human v. Cuniffe, 33 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, 
 
 317, 322, 1143, 1151, 1153, 1155, 1156, 
 
 1157 
 Humplireys v. Matthews, 11 
 
 111. 471, - - - - 894 
 
 v. Mooney, 5 Col. 282, - 4 
 
 Humpliries v. Chastaiu, 5 Ga. 
 
 166 (48 Am. Dec. 247), 690, 694 
 
 V. McCraw, 5 Ark. 01, - 64 
 
 Hunnicutt v. Summey, 63 Ga. 
 
 580, ... - 1131, 1132 
 
 Hunt V. Benson, 2 Humph. 
 
 (Tenii.) 459, - - - 281. 544 
 
 V. Chapiu, 6 Lans. 139, - 329. 
 
 343, 371 
 V. Drane, 32 Miss. 243, - 723
 
 Hun.] 
 
 TABLE OF CASES. 
 
 [Huw. 
 
 Hunt V. Erikson, 57 Mich. 330, 38 
 
 V. Gookin, 6 Vt. 4G3, - 736 
 
 V. Gorden, 52 Miss. lU, 899, 937 
 
 V. Hall, 8 Ind. 215, - 370, 607 
 
 V. Hard wick, 08 Ga. 100, 961 
 
 V. Jucks, 1 Hayw. (N.Ca.) 
 
 173 (1 Am. Dec. 555), - 1155 
 
 V. Morris, 44 Miss. 314, 278, 
 
 541, 858, 892 
 
 V. Pfeiffer, 108 Ind. 197, 113, 
 
 128 
 V. Reilly, 50 Tex. 99. - 889 
 
 V. Rogers, 7 Allen, 469, 
 
 634, 
 
 635, 647 
 • V. Royal Exchange Assur. . 
 
 Co. 5 M. & S. 47, - 
 
 V. Roylance, 11 Cush. 117, 
 
 V. Semouin, 79 Ky. 270, - 
 
 V. Smith, 3 Rich. Eq. 465, 
 
 V. Stuart, 53 Md. 225, 
 
 V. Tibbetts, 70 Me. 221, - 
 
 Hunter, Ex parte, 1 Atk. 228, - 
 
 V. Aldrich, 52 Iowa, 442, 
 
 V. Belcher, 3 De G., J. & 
 
 Sm. 194, .... 
 V. Hempstead, 1 Mo. [07] 
 
 409 
 1143 
 
 195 
 184, 
 
 187 
 
 964 
 
 663 
 825, 
 
 836 
 978, 
 
 979 
 
 954 
 
 48 (13 Am. Dec. 468), - - 397 
 
 — V. Hubbard, 26 Tex. 537, 150, 
 
 701, 1135 
 
 — V. Land, 8H Pa. St. 296, - 873 
 
 — V. Martin, 2 Rich. (S. Ca.) 
 L. 541, 
 
 V. Martin, 57 Cal. 365, - 
 
 V. Parker, 7 M. & W. 322, 
 
 — V. Smith, 14 Wis. 683, - 
 
 296 
 
 1068 
 
 418 
 
 296 
 
 V. Waynick, 67 Iowa, 555, 340, 
 
 404, 405 
 
 V. Whitehead, 43 Mo. 534, 303 
 
 Huntington v. Lyman, 1 D. 
 Chip. (Vt.) 438 (13 Am. Dec. 
 716), . - - - 349, 363 
 
 V. Potter, 32 Barb. 300, 681, 683 
 
 Huntley v. Huntley, 1 14 U. S. 
 394, - . - - 208, 209 
 
 Huntoon v. Dow, 29 Vt. 215, - 1045 
 Hupp V. Hupp, 6 Gratt. 310, - 532, 
 
 635, 879 
 Hurd V. Haggerty, 24 111. 171, 331, 
 - 448, 356, 1152 
 Hurlbert v. Dean, 2 Keyes, 97 
 
 (2 Abb. App. 428), - - 566 
 
 Hurlbut V. Johnson, 74 111. G4, 558, 
 
 1109 
 
 V. Post, 1 Bosw. 28, - 151, 1053 
 
 Hurst V. Hill, 8 Md. 399 (63 
 Am. Dec. 705), 
 
 Hurt V. Clarke, 56 Ala. 19; 28 
 
 Am. Rep. 751, - - - 
 
 V. Salisbury, 55 Mo. 310, - 
 
 694 
 
 429 
 5 
 
 Huston V. Neil, 41 Ind. 504, - 290, 
 
 927 
 Hutcheson v. Smith, 5 Irish 
 
 Eq. 117, - - 770, 780. 788 
 
 Hutchins v. Bank of Teun. 8 
 Humph. 418, - - 613, 616 
 
 V. Buckner, 3 Mo. App. 
 
 594, .... 78, 1137 
 
 V. Childress, 4 Stew. & 
 
 Por. 34, - - - - - 331 
 V. Gilman, 9 N. H. 359, - 317 
 
 V. Hudson, 8 Humph. 
 
 426, .... 372, 613 
 
 V. Sim, 8 Humph. 423, - 613 
 
 Hutchinson v. Dubois, 45 
 Mich. 143, ... - 1106 
 
 V. Onderdonk, 6 N. J. Eq. 
 
 277 (reversed, id. 633), - 767, 771 
 
 V. Paige, 67 Wis. 203, - 930 
 
 V. Smith, 7 Paige, 26, 482, 483, 
 
 726, 733 
 Hayes 
 - 234, 575 
 
 V. Whitfield, 
 
 (Irish), 78, - 
 Hvitton V. Bullock, L. R. 8 Q. 
 
 B. 331 (affd. in 9 id. 572), - 
 
 V. Eyre, 6 Taunt. 289, 
 
 V. Laws, 55 Iowa, 710, 
 
 80 
 385 
 923. 
 924 
 Hutzler v. Phillips (S. Ca.), 1 
 
 S. E. Rep. 502, - - 826, 847 
 Huwer v. Dannenhoffer, 82 N. 
 Y. 499, .... 663, 675 
 
 ci
 
 HUY.] 
 
 Huyck V. Meador, 24 Ark. 191, 
 Hyams v. Rogers, 24 La. Ann. 
 
 230, 457 
 
 Hyat V. Hare, Coniberbach, 
 
 383, - - 373, 722, 724, 746 
 Hyde v. Easter, 4 Md. Ch. 80, 798 
 Hydeville v. Barnes, 37 Vt. 
 
 588, 899 
 
 Hyer v. Burdett, 1 Edw. Ch. 
 
 325. .... 924, 925 
 
 Hyman v. Stadler, 63 Miss. 
 
 362, .... . 537 
 Hynes v. Stewart, 10 B, Mon. 
 
 429, 595 
 
 Hyrschf elder v. Keyser, 59 
 
 Ala. 338, - - - - 403 
 
 I. 
 
 Iddings V. Bruen, 4 Sandf. Ch. 
 
 223, .... 303, 645 
 
 V. Pierson, 100 Ind. 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, Re, 5 Boston Law Rep. 
 
 401, 825 
 
 Ingersoll v. Robinson, 35 Ala. 
 
 292, 1081 
 
 Inglebright v. Hammond, 19 
 
 Oh. 337 (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 
 
 TABLE OF CASES. 
 880 
 
 [Jac. 
 
 Iowa Seed Co. v. Dorr (Iowa), 
 
 30 N. W. Rep. 866, - 667, 669 
 Irby V. Graham, 46 Miss. 425, 454, 
 
 749, 825, 828 
 
 V. Viniug, 2 McCord (S. 
 
 Ca.), L. 379, - 618, 621, 623, 624 
 Irish V. Snelson, 16 Ind. 8G5, . 850 
 Irvin V. Conklin, 86 Barb. 64, 91 
 V. Nashville, Ciiat. & St. 
 
 L. R'y Co. 92 111. 103 (34 Am. 
 
 Rep. 116), - - 57, 66, 134 
 Irvine v. Myers, 4 Minn. 229, 1057 
 V. Young, 1 Sim. & Stu. 
 
 333, 955 
 
 Irving, Re, 17 Bankr. Reg. 22, 349 
 Irwin V. Bid well, 72 Pa. St. 
 
 244, 16. 23, 45, 47, 48, 49, 88, 188 
 V. Williar, 11 Biss. 57 (re- 
 versed in 110 U. S. 4£3), - 319- 
 
 V. Williar, 110 U. S. 499, 317, 
 
 318. 319, 373 
 Isaacs, Re, 3 Sawy. SI; 6 
 
 Bankr. Reg. 93, - - - 503 
 Isler V. Baker, 6 Humpli. 
 
 (Tenn.) 85, - - 527,581,694 
 Ives V. Miller, 19 Barb. 196, 850, 852 
 Ivey V. Hammock, 68 Ga. 428, 278 
 Ivy V. Walker, 58 Miss. 253, 849, 893 
 
 J. 
 
 Jacaud v. French, 12 East, 317, 171, 
 
 381 
 Jackman v. Partridge, 21 Vt. 
 
 558, 543 
 
 Jackson, Re, 1 B. & C. 270, - 110 
 
 , Ex parte, 1 Ves. Jr. 131, 511 
 
 , Ex parte, 2 M. D. & D. 
 
 146 (s. c. below as Ex parte 
 
 Whitmore, 5 M. & A. 637; 
 
 3 Deac. 365), - - - 512, 516 
 
 V. Alexander, 8 Tex. 109, 1022 
 
 V. Bohrman, 59 Wis. 422, 437, 
 
 1019 
 
 V. Clymer, 43 Pa. St. 79, - 1081 
 
 V. Cornell, 1 Sandf. Ch. 
 
 848, .... 566, 569 
 
 ou
 
 J AC] 
 
 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, G60, 1007 
 
 -■ — V. Hollo way, 14 B. Mon. 
 108, 383 
 
 V. Jackson, 1 Sm. & G. 
 
 184, 247 
 
 V. Johnson, 11 Hun, 509, 781 
 
 V. Jones, 13 Ala. 121, - 1167 
 
 V, King, 8 Leigh, 669, - 749 
 
 V. King, 12 Gratt. 499, - 750 
 
 V. Lahee, 114 111. 287, - 1006 
 
 V. Litchfield, 8 Q. B. D. 
 
 474, 1063 
 
 • V. Robinson, 3 Mason, 138, 70, 
 
 71, 1081 
 
 - V. Salmon, 4 Wend. 327, - 508 
 
 V. Sedgwick, 1 Swanst. 
 
 460, ... - 86, 212 
 
 V. Stopherd, 3 Cr. & M. 
 
 361, 892 
 
 V. Todd, 56 Ind. 406 (s. C. 
 
 as Todd v. Jackson, 75 id. 273), 316 
 Jackson Ins. Co. v. Partee, 9 
 
 Heisk. 296, - - - 824, 825 
 Jacobs, Ex parte, 10 Ch. App. 
 
 311, ... - 533, 534 
 
 V. McBee. 2 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 ; 46 L. T. N. S. 740, - - 676 
 Jacques V. Hulit, 16 N. J. L. 38, 858, 
 
 860 
 Jacquin v. Buisson, 11 How. 
 
 Pr. 385, .... 51, 994 
 Jaffray v. Frebain, 5 Esp. 47, 148 
 James v. Bostwick, Wright 
 
 (O.), 142, - - - 421, 423 
 
 V. Brooke, 15 La. Ann. 
 
 541, 1167 
 
 V. Browne, 1 Ball. 339, - 899 
 
 V. Dixon, 21 Mo. 538, - 734 
 
 James v. Pope, 19 N. Y. 324, - 615 
 V. Stratton, 32 111. 202, - 83 
 
 Jameson v. Franklin, 6 How. 
 
 (Miss.) 376, - - - 701, 1074 
 Janson, Ex parte, 3 Madd. 239; 
 
 Buck, 337, - - - 833, 834 
 January v. Poyntz, 3 B. Mon. 
 
 404, 834 
 
 Jaques V. Marquaud, 6 Cow. 
 
 497 ; 8 Wend. 490, - - - 481 
 Jardine v. Hope, 19 Grant's 
 
 Ch. (Up. Can.) 76, - 770, 781, 7f^3 
 Jarvis v. Brooks, 3 Foster (33 
 
 N. H.), 136, - - 824, 825, 847 
 
 V. Brooks, 27 N. H. 37 (59 
 
 Am. Dec. 359), - - 189, 281 
 
 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 Russ. 158, 158, 
 160, 163, 343, 934 
 Jeffreys v. Coleman, 30 Fla. 
 
 536, 416 
 
 Jeffries v. Castleman, 75 Ala. 
 
 263, 700 
 
 V. Mut. L. Ins. Co. 110 U. 
 
 S. 305, - - - - 333. :07 
 
 V. Evans, 6 B. Mon. 119, 1081. 
 
 1084 
 Jell V. Douglass, 4 B. «& A. 374, 716 
 Jemison v. Bearing, 41 Ala. 
 283, .... 361, 10(i8 
 
 V. Minor, 34 Ala. 33, 193, 333 
 
 V. Webb, 30 Ind. 167, - 880 
 
 Jenkins v. Davis, 54 Wis. 253, 1159 
 
 V. De Groot, 1 Cai. 122, - 747 
 
 V. Howard, 31 La. Ann. 
 
 597, .... 278, 86" 
 
 V. Morris, 16 M. & W. 879, 441 
 
 V. Peckiupaugh, 40 Ind. 
 
 133, .... 303, 765 
 
 Jenness v. Carleton, 40 Midi. 
 
 343; 42 id. 110, - - 691, 7:27 
 
 V. Smitii, 58 Mich. 2S0, 930, 931 
 
 Jennings v. Baddeley, 3 K. & 
 J. 78, 5;;3 
 
 cm
 
 Jen.] 
 
 TABLE OF CASES, 
 
 [JOH. 
 
 Jennings v. Broughton, 17 
 Beav. 234 (affd. in 5 De G.^ 
 M. & G. liiG), - - - 595 
 
 V, Chandler, 10 Wis. 18 
 
 [21], 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; 80 N. Y. 441, 
 V. Cook, 6 N. J. L. 434, - 
 
 972 
 
 9S9 
 
 rG4. 
 
 899, 954, 985 
 Jestons V. Brooke, Cowp. 793, 16 
 Jewell V. Ketclium, 63 Wis. 
 
 628, .... 635, 879 
 Jewett, In re, 1 Baiikr. Reg. 49 1, 832 
 , In re, 1 BauKr. Reg. 495 
 
 (7 Am. Law Reg. (N. S.) 291), 836 
 , Re, 7 Biss. 328 ; 15 Bankr. 
 
 Reg. 126, .... 95 
 
 V. Bacon, 6 Mass. 60, - 1125 
 
 V. Meech, 101 Ind. 289, - 565 
 
 V. Phillips, 5 Allen. 150, 825 
 
 Johnes' Case. See Devaj'nes v. 
 
 Noble. 
 Johns V. Battin, SO Pa. St. 457, 410 
 Johnson's Appeal (Pa. 1887), 8 
 
 Atl. R<'p. 36, ... 305 
 
 Johnson, Re, 2 Lowell, C, 
 
 129, .... 
 
 C. 
 
 5(J3, 832 
 154, 715 
 - 942 
 347, 508, 
 510, 515 
 . 84 111. 54 
 (25 Am. Rep. 427), - - 731 
 — V. Bernheim, 76 N. Ca. 139 
 
 V. Ames, 6 Pick. 330, 
 V. Ames, 11 Pick. 173, 
 V. Barry, 95 111. 483, 
 
 V. Berlizheimer, 
 
 (9. C. as Johnston v. B. 86 id. 
 
 339), - - - 323, 325, 1069 
 
 V. Boone, 2 Harr. (Del.) 
 
 172, 
 
 V. Buttler, 31 N. J. Eq. 35, 
 
 V. Clark, 18 Kan. 157, - 
 
 V. Coffee, 1 Ash mead, 96, 
 
 V. Curtis, 2 Bro. C. C. 311, 
 
 495 
 938 
 285 
 642 
 
 note, 
 
 962 
 
 ci 
 
 Johnson v. Evans, 7 M. & G. 
 
 240, 1105 
 
 V. Gallivan, 52N. H.U3, - 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 ; 2 
 
 DeG. J. & S. 446 (afiE. 10 Jur. 
 N.S. 1141 ; 34 L. J. Ch. 32), - 664, 
 
 665, 974 
 
 V, Hersey, 70 Me. 74 (35 
 
 Am. Rep. 303); 8 Am. Law 
 Rec. 720 (73 Me. 291). - - 1015 
 
 — V. Hersey, 73 Me. 291, - 410 
 
 — V. Kaiser, 40 N. J. L. 286, 723 
 
 — V. Kelly, 2 Hun, 139; 4 
 Thomp. & C. 417, - 813, 849 
 
 — V. Xing, 6 Humph. 
 (Teun.)233, - - - - 1103 
 
 — V. Mantz, 69 Iowa, 710, 971, 974 
 
 — V. Marsh, 2 La. Ann. 772, G95 
 
 — V. Mdler, 16 Oh. 431, 42, 43, 45 
 
 — V. Peck, 3 Stark. 66, 372, 1035 
 
 — V. Rogers, 15 Bankr. Reg. 
 
 1 ; 5 Am. Law Rec. 536, 184, 186, 
 
 291 
 
 — V. Short, 2 La. Ann. 277, 894 
 
 — V. Straus, 4 Hughes, 621 
 
 (S. C. as Johnston v. Straus, 
 26 Fed. Rep. 57). See John- 
 ston V. Straus. 
 
 V. Totten, 3 Cal. 343 (58 
 
 Am. Dec. 412), - - - 707 
 
 V. Wilcox, 25 Ind. 182, 709, 711 
 
 V. Wilson, 54 111. 419, 850, 855. 
 
 888 
 
 V. Young, 20 W. Va. 614, 532, 
 
 534 
 
 Johnston v. Bernheim, 86 N. 
 Ca. 339 (s. C. as Joiinsou v. 
 B. 76 id. 139). - - 323, 325 
 
 V. Clements, 25 Kan. 376, 1151 
 
 V. Crichton, 56 Md- 108, 411, 
 
 430, 1038, 1046
 
 JOH.] 
 
 TABLE OF CASES. 
 
 [JOK, 
 
 Johnston 
 245, 
 
 230, 
 
 — V, 
 
 Button, 37 Ala. 
 - 325, 328, 344, 374, 431, 
 432, 577, 619 
 Eichelberger, 13 Fla. 
 
 83 
 
 Freer, 51 Ga. 97, - - 959 
 
 V. Freer, 51 Ga. 313, - 930 
 
 V. Straus, 26 Fed. Rep. 57 
 
 (s. C. as Johnson V. Straus, 4 
 Huglies, 621), - 562, 263, 929 
 
 V. Warden, 3 Watts, 101, 156, 
 
 1143, 1151, 1154 
 Jones' Appeal, 70 Pa. St. 169. 190, 
 
 251, 289 
 Jones V. Anderson, 7 Leigh 
 (Va.), 308, - - - - 1121 
 
 V. Bailey, 5 Cal. 345, - 330 
 
 V. Bartlett, 50 Wis. 589, 510,513 
 
 V. Benedict, 83 N. Y. 79. 496 
 
 V. Blair, 57 Ala. 457, 10-9, 1080 
 
 V. Bliss, 45 111. 143, - 
 
 V. Booth, 10 Vt. 268, 
 
 — V. Butler, 87 N. Y. 
 (aff. 23 Hun, 3o7), 
 
 — V. Call, 93 N. Ca. 170, 
 
 - 629 
 349, 365, 
 
 430 
 613 
 
 - 814 
 26, 1135 
 
 — V, Capertou, 15 La. Ann. 
 
 475, 457 
 
 -^ V. Clark, 42 Cal. 180, 329, 374, 
 
 429, 580, 931 
 
 — V. Dexter, 130 Mass. 380 
 
 (39 Am. Rep. 459), - - 804, 309 
 
 V. Fegely, 4 Phila. 1, 152, 443 
 
 V. Fletcher, 42 Ark. 422, 550, 
 
 570, 907, 1102, 1115 
 
 — V. Foster, 67 Wis. 293, - 709 
 
 — V. Foxall, 15 Beav. 388, 485 
 
 — V. Hardesty, 10 Gill & J. 
 
 (Md.) 404 (32 Am. Dec. 180), 
 
 V. Heavens, 4 Ch. D. 636, 
 
 V. Herbert, 7 Taunt. 421, 
 
 V. Howard, 53 Miss. 707, 
 
 V. Hurst, 67 Mo. 568, 
 V. Jones, 12 Ala. 244, 
 V. Jones, 23 Ark. 212, 
 
 91^ 
 
 746 
 
 677 
 
 383 
 
 57, 
 
 1023 
 
 347 
 
 1081 
 
 918, 
 
 920 
 
 Jones V. Jones, 1 Ired. (N. Ca.) 
 
 Eq. 332, - - - 181, 785, 963 
 V. Jones, 9 Lea (Tenn.), 
 
 627, 
 
 — V. Lloyd, L. R. 18 Eq. 265, 
 
 290 
 
 574, 
 
 581 
 
 V. Lusk, 2 Met. (Ky.) 356, 561, 
 
 565, 568, 821, 929, 1120 
 
 V. McMichael, 12 Rich. (S. 
 
 Ca.) L. 17o, - 32, 58, 01, 208, 580 
 
 V. Mars, 2 Camp. 305, - 1068 
 
 V. Maund, 3 Y. & C. 347, 500 
 
 V. Morehead, 3 B. Mon. 
 
 377, - - - 795, 873, 986 
 
 V. Neale, 2 Patt. & H. 
 
 (Va.) 339, 183, 184, 291, 236, 541 
 
 V. Newsom, 7 Biss. 321, - 754 
 
 V. Noy. 2 Myl. & K. 123, 581 
 
 V. OTanel, 1 Nev. 354, 331, 332 
 
 V. Parker, 20 N. H. 31, 107, 134. 
 
 196 
 
 V. Parsons, 25 Cal. 100, 184. 186. 
 
 1129 
 
 V. Perchard, 2 Esp. 507, - 111 
 
 V. Rives, 3 Ala. 11, - - 3G1 
 
 V. Sco'.t, 2 Ala. 58, - 158, 162 
 
 V. Shaw, 67 Mo. 607, 850, 880, 
 
 881 
 
 V. Shears, 4 Ad. & El. 832, 174 
 
 V. State, 76 Ala. 8, - - 277 
 
 V. Stevens, 5 Met. 373, - 1151 
 
 V. Thompson, 12 Cal. 191. 977, 
 
 1109, nil 
 
 V. Thorn, 2 Mart. (La.) N. 
 
 S. 463, 731 
 
 V. Walker, 103 U. S. 444, 55. 
 
 598, 600 
 
 V. Yates, 9 B. & C. 532, - 1037, 
 
 1038, 1044 
 Jordan, In re, 2 Fed. Rep. 319, 483, 
 
 484, 841 
 
 V. Miller, 75 Va. 443, 208, 320, 
 
 402, 949, 972 
 
 V. Smith, 17 Up. Can. Q. 
 
 B. 590, - - - 100, 623, 62S 
 
 V. Wilkins, 3 Wash. C. C. 
 
 110, - - - 56,66,1072 
 
 cv
 
 Jos.] 
 
 TABLE OF CASES. 
 
 [Keu 
 
 Joseph V. Fisher, 4 111. 137, - 1155, 
 
 1158 
 Jovvers v. Baker, 57 Ga. 81, - 876 
 Joy V. Allen, 2 Woodb. & M. 
 
 303, 59 
 
 Joyce V. Williams, 14 Wend. 
 
 141 (explained in Stall v. 
 
 Catskill Bank, 18 Wend. 
 
 400), - - - - 349, 358 
 Judd V. Wilson, 6 Vt. 185, 859, 8G0 
 Judd Linseed & Sperm Oil Co. 
 
 V. Hubbell, 76 N. Y. 543, - 457, 
 
 1096 
 Judge V. Brasvvell, 13 Bush, 67 
 
 (26 Am. Rep. 185), 329, 341, 345 
 Judson V. Adams, 8 Cash. 
 
 556, - . - - 39, 43 
 
 Julian V. Wrightman, 73 Mo. 
 
 5G9, 1131 
 
 Julio V. Ingalls. 1 Allen, 41, 32. 258 
 
 K. 
 
 Kahl V. Sneed, 59 Pa. St. 388, 278 
 
 Kahley, In re, 2 Biss. 383, - 565 
 
 Kahn v. Boltz, 39 Ala. 66, - 978 
 
 V. Central Smelting Co. 
 
 103 U. S. 641, - - 163, 585 
 
 Kaiser v, Fendrick, 98 Pa. St. 
 
 528, - - - 349, 369, 1151 
 V. Lawrence Sav. B'k, 56 
 
 Iowa, 104, - - - - 5 
 
 V. Wiihelm, 2 Mo. A pp. 
 
 596, 770 
 
 Kale V.Elliott, 18 Hun, 198, - 1170 
 Kamra v. Harker, 3 Oreg. 208, 454, 
 
 456, 1049, 1056 
 Karthaus v. Ferrer, 1 Pet. 222. 336 
 Kaskaskia Bridge Co. v. Shan- 
 non, 6 111. 15, 154, 331, 332, 1145, 
 
 1151 
 Kassou V. Brocker, 47 Wis. 
 
 79, 1121 
 
 Kauffnian v. Fisher, 3 Grant's 
 
 Cas. (Pa.) 303, - - 538, 703 
 Kaufman v. Schoeffel, 37 
 Hun, 140, - - - - 139 
 
 Kayser v. Maugham, 8 Col, 232 
 
 (S. C. id. 839), - - - 305 
 
 V. Maugham, 8 Col. 339, 305, 
 
 545, 790 
 Keasley v. Codd, 2 C. & P. 
 
 408, n., 
 
 Keating v. Marsh, 1 Mont. & 
 
 A. 582 (aff. on app. Marsh v. 
 
 Keating, 1 Bing. N. C. 198; 
 
 2 CI. & Fin. 250), - 
 V. Sherlock, 1 Cint. Supe- 
 
 73 
 
 474 
 528 
 
 rior Ct. Rep. 257, - 
 Keaton v. Mayo, 71 Ga. 649. 810. 812 
 Keck V. Fisher, 58 Mo. 532, 299, 405, 
 
 406 
 Kedie, Ex parte, 2 Deac. & C. 
 
 331, 512 
 
 Keegan v. Cox, 116 Mass. 289, 145, 
 
 275, 406 
 Keeler v. Niagara F. Ins. Co. 
 
 16 Wis. 535, - - - - 273 
 Keeney v. Home Ins. Co. 71 N. 
 
 Y. 396 (27 Am. Rep. 60), - 1003 
 Keerl v. Bridgers, 10 Sm. & 
 
 Mar. (Miss.) 612, - 454, 523, 524 
 Keese v. Coleman, 72 Ga. 65S, 825 
 Keiser v. State. 58 Ind. 379, 43, 45, 
 
 46 
 Keith V. Armstrong, 65 Wis. 
 
 235, ... - 566, 1118 
 
 V. Fink, 47 III. 272, - - 566 
 
 V. Keith, 143 Mass. 263, - 294 
 
 Kell V. Nainby, 10 B. & C. 20, 1023 
 Keller v. Stolzenbach, 20 Fed. 
 
 Rep. 47, - - - - 266 
 
 V. Tracy, 11 Iowa, 530, - 1038 
 
 Kelley v. Greenleaf, 3 Story, 
 
 93, .... 545, 790 
 
 V. Hurlburt, 5 Cow, 534, 150, 
 
 608 
 Kellogg V. Fox, 45 Vt. 348, 274, 554 
 
 V. Griswold, 13 Vt. 291, 37, 39. 
 
 43 
 
 V. Moore, 97 111. 283. - 887 
 
 V. Tolten. 16 Abb. Pr. 35, 663 
 
 Kellogg Newspaper Co. v. Far- 
 
 rell, 88 Mo. 594, - - - 23, 4u 
 
 cvi
 
 Kel.] 
 
 TABLE OF CASES. 
 
 [Ker. 
 
 Kelly V. Baker, 2 Hilt. 531, - 
 
 V. Clancey, 16 Mo. App. 
 
 549, 
 
 V. Crawford, 5 Wall. 7S8, 
 
 V. Devliu, 15 Jones & Sp. 
 
 338 
 
 203 
 698 
 
 555 (58 How. Pr. 487), - 114, 1186 
 
 — V. Eckford, 5 Paige, 548, 978 
 
 — V. Gaines, 24 Mo. App. 
 
 506, - - - - 23, 40, 61 
 
 — V. Hutton, L. R. 3 Ch. 
 App. 703, - ... 927 
 
 — V. Hutton, L. R. 9 Ch. 
 App. 690, - - - - 185 
 
 — V. Murphy (Cal.), 12 Pac. 
 
 480 
 
 722 
 340 
 
 Rep. 467, - - - - 278 
 
 V. Scott, 49 N. Y. 595, - 105 
 
 V. Scotto, 49 L. J. Ch. 383 ; 
 
 42 L. T. N. S. 827, - - - 22, 47 
 Kelsey v. Hobby, 16 Pet. 269, 552 
 Kelton V. Leonard, 54 Vt. 230, 319, 
 
 322 
 Kembie v. Farren, 6 Bing. 
 
 141, - - -■ - - 250 
 
 V. Kean, 6 Sim. 333. - 306 
 
 V. Mills, 9 Dowl. 446, - 890 
 
 Kemeys v. Richards, 11 Barb. 
 
 312,' 
 
 Kemp V. Andrews, Carth. 170; 
 
 3 Lev. 290 ; 1 fehow. 188, 189, 
 
 V. Carnley, 3 Duer, 1, 
 
 V. Cook, 18 Md. 130, 142, 145 
 
 V. Doggett, 3 G. Greene, 
 
 190, 695 
 
 Kempner, In re, L. R. 8 Eq. 
 
 286, 564 
 
 Kendal v. Wood, L. R. 6 Ex. 
 
 243, - - - 383, 1046, 1048 
 Kendall, Ex parte, 17 Ves. 514, 747, 
 
 843 
 
 V. Garland, 5 Cush. 74, - 1073 
 
 V. Hamilton, 4 App. Cas. 
 
 504 (s. c. below, 3 C. P. D. 
 
 403), - - - 454, 535, 748 
 
 V. Rider, 35 Barb. 100, 282, 844 
 
 V. Riley, 45 Tex. 20, - 693 
 
 Kendrick v. Campbell, 1 Bai- 
 ley (S. Ca.). 522, - - - 701 
 
 Kendrick v. O'Neil, 48 Ga. 631, ,385 
 
 V. Tarbell, 27 Vt. 512, 188, 453. 
 
 453a, 631, 852, bSl 
 Kenedy v. Cunningham, 
 
 Cheves (S. Ca.), 50, - - lOSl 
 Kennard v. Adams, 11 B. Mon. 
 
 102, 894 
 
 Kennebec Co. v. Augusta 
 
 Banking Co. 6 Gray, 204, - 333 
 Kennedy, Ex parte, 2 De G. M. 
 
 & G. 228, .... 833 
 V. Bohannon, 11 B. Mon. 
 
 118, 152, 156, 445, 608, 612, 618 
 
 V. Kennedy, 3 Dana, 239, 228, 
 
 315, 591, 594, 988, 994 
 
 V. Lee, 3 Mer. 452, - - 664 
 
 V. McFadoD, 3 Har. & J. 
 
 194, 853 
 
 V. Shilton, 1 Hilt. 546; 9 
 
 Abb. Pr. 157, n., - - - 964 
 Kenney v. Altvater, 77 Pa. St. 
 
 34, - - 374, 375, 607, 615, 707 
 Keuney's Patent Button Hole- 
 
 ingCo. V. Somervell, 3S L. T. 
 
 N. S. 878 ; 26 W. R. 786, - 258 
 Kenniston v. Avery, 16 N. H. 
 
 117, 705 
 
 Kensington, Ex parte, 14 Ves. 
 
 447, ... - 833,834 
 
 Kent V. Chapman, 18 W. Va. 
 
 485, .... 333, 963 
 
 V. Holliday, 17 Md. 387, 1049, 
 
 1050 
 
 V. Jackson, 2 DeG. M. & 
 
 G. 46, 958 
 
 V. Mojonier, 36 La. Ann. 
 
 259, 198 
 
 V. Wells, 21 Ark. 411, . 450, 
 
 1051, 1068 
 Kenton Furnace & Mfg. Co. v. 
 
 McAlpiu, 5 Fed. Rep. 737, 261, 720 
 Keu worthy v. Sawyer, 125 
 
 Mass. 28, 29, - - - . u\ 
 Kepler v. Erie Dime Sav. & 
 
 Loan Co. 101 Pa. St. 002, - 289 
 Kerr v. Bradford, 26 Up. Can. 
 
 C. P. 318, .... 55? 
 
 cvu
 
 Ker.] 
 
 TABLE OF CASES. 
 
 [Kin. 
 
 Kerr v. Kingsbury, 39 Mich. 
 
 150, .... 282, 295 
 
 V. Potter, G Gill, 404, 17, 43, 
 
 103, 104, 105 
 Kerrick v. Stevens, 55 Mich. 
 
 167, - - - - - 81, 82 
 Kerrigan v. Kelly, 17 Mo. 275, 870 
 Kershaw v. Matthews, 2 Russ. 
 
 (52, 249 
 
 Ketchain v. Clark, 6 Johns. 
 
 144, - . - 611, 618, 621 
 Ketchum, In re, 1 Fed. Rep. 
 
 815, .... 480, 483 
 
 V. Durkee, Hoffm. Ch. 
 
 (N. Y.) 538, - - - 446, 532 
 
 V. Ketchum, 1 Abb. Pr. 
 
 (N. S.) 157, - - - - 894 
 Kettelle v. Wardell, 2 111. 592, 627, 
 
 1073 
 Kickman v. Kunkle, 27 Mo. 
 
 401, 343 
 
 Kidd V. Brown, 2 How. Pr. 20, 1086 
 Kiddei- v. Mcllhenuy, 81 N. Ca. 
 
 123, 880 
 
 V. Packard, 13 Mass. 80, - 1127 
 
 V. Page, 48 N. H. 380, 349, 566 
 
 Kilby V, Wilson, Ry. & Moo. 
 
 178, 480 
 
 Kilgour V. Finlyson, 1 H. Bl. 
 
 155, - - - 693, 694, 695 
 
 Killani v. Preston, 4 Watts & 
 
 S. 14, - - - - 858, 860 
 Killock V. Greg, 4 Russ. 285, - 922 
 Kilshaw v. Jukes, 3 Best & Sm. 
 
 847, - - 18, 20, 29, 39. 61 
 Kimball v. Hearhart, 12 Cal. 27, 241 
 V. Hamilcon F. lus. Co. 
 
 8 Bosw. 495, - - - - 405 
 V. Lincoln, 5 III. App. 316 
 
 (reversed, 7 id. 470, and 99 
 
 111. 578), - - - 772, 774 
 V. Lincoln, 99 111. 578 
 
 (afTg. s. c. 7 111. App. 470, 
 
 which reversed 5 111. App. 
 
 316), - - 743, 772, 774, 976 
 
 V. Thompson, 13 Met. 283, 190, 
 
 560 
 
 Kimball v. Walker, 30 111. 482, 629 
 Kimberly's Appeal (Pa.), 7 Atl. 
 
 Rep. 75, .... 527 
 
 Kimble v. Seal, 92 Ind. 276, - 937 
 Kimbro v. Bullitt, 22 How. 
 
 256, 322, 327, 328, 329, 341, 348, 
 
 1049 
 Kimmel v. Shultz, Breese(Ill.), 
 
 128, 1094 
 
 Kimmins v. Wilson, 8 W. Va. 
 
 584, - - . - 2, 72, 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. 35, - 146, 
 
 611, 1151, 1154 
 
 V. Bell, 13 Neb. 409, - 1055, 
 
 1068 
 
 V. Chuck, 17 Beav. 335, - 217 
 
 V. Courson, 57 Ga. 11, - 629 
 
 V. Faber, 22 Pa. St. 21, - 347 
 
 V. Ham, 4 Mo. 275, - - 1154 
 
 V. Hamilton, 16 111. 100, - 259, 
 
 262, 544, 766 
 
 V. Hoare, 13 M. & W. 495, 537 
 
 V. Leigh ton, 100 N. Y. 386 
 
 (rev. 22 Hun, 419), - 583, 795 
 
 V. Smith, 4 C. & P. 108, - 381, 
 
 681, 684 
 V. Wartelle, 14 La. Ann. 
 
 740, .... 942, 976 
 
 V. Weeks, 70 N. Ca. 372, - 284, 
 
 285, 293 
 
 V. Wilcoinb, 7 Barb. 263, 282 
 
 V. Winants, 71 N. Ca. 469, 113, 
 
 119, 127 
 Kingman v. Spurr, 7 Pick. 235, 72, 
 
 74, 1113 
 Kingsland v. Braisted, 2 Lans. 
 
 17, 905 
 
 Kingsley v. Hubbard, 39 Cal, 
 
 655, 1131 
 
 Kinkead, In re, 3 Biss. 405; 7 
 
 Batikr. Reg. 439 (U. S. D. C. 
 
 111.), 139 
 
 cvia
 
 Kin.] 
 
 TABLE OF CASES. 
 
 [Kno. 
 
 Kiiiloch V. Hamlin, 2 Hill (S. 
 Ca.), Ch. 19 (27 Am. Dec. 441), 577. 
 
 578, 855, 889 
 Kinney v. McCullough, 1 
 Sandf. Ch. 370, - - - 532 
 
 V, Robison, 52 Mich. 389, 855, 
 
 874 
 Kinsler v. McCants, 4 Rich. (S. 
 Ca.) L. 46 (53 Am. Dec. 711), 685, 
 
 713, 722, 724 
 Kinsman v. Barker, 14 Ves. 
 579, 962 
 
 V. Castleraan. 1 Mon. 
 
 (Ky.)210, - - - . 201 
 
 V. Dallam, 5 Mon. (Ky.) 
 
 383, 202 
 
 V. Parkhurst, 18 How. 
 
 289. .... 116, 305 
 
 Kintrea v. Charles, 12 Grant's 
 
 Ch. (Up. Can.) 117, - 309, 632 
 Kious V. Day, 94 Ind. 500, - 884 
 Kipling V. Turner, 5 B. & 
 
 Aid. 261, .... 651 
 
 Kipp V. McChesney, 66 111. 460, 531 
 Kirby v. Cannon, 9 Ind. 371, - 148, 
 
 1094 
 
 V. Carpenter, 7 Barb. 373, 825 
 
 V. Carr, 3 Younge & Coll. 
 
 Ex. 184, .... 581 
 
 V. Coggswell, 1 Cai. 505, 543, 
 
 1017 
 
 V. Hewitt, 26 Barb. 607, - 199 
 
 V. Ingersoll, 1 Doug. 
 
 (Mich.) 477 (aff. s. c. Harr. 
 
 Ch. 172), - - - 838, 403 
 V. Lake Shore & M. S. R. 
 
 R. 8 Fed. Rep. 463 ; s. c. 14 
 
 id. 261, - - - - 717, 722 
 V. Taylor, 6 Johns. Ch. 
 
 242, 386 
 
 V. Schoonmaker, 3 Barb. 
 
 Ch. 46, - - - - 566, 569 
 Kirk V. Blurton, 9 M. & W. 
 
 284; 12 L. J. Ex. 117, - 192, 199, 
 
 201, 203 
 
 V. Hartman, 63 Pa. St. 97, 91 
 
 V. Hiatt, 2 Ifid. 332, 681, 701, 704 
 
 Kirk V. Hodgson, 3 Jolins. Ch. 
 
 400, .... 432, 4m 
 Kirkman v. Booth, 11 Beav. 
 
 273, - - - 599, 600, 739 
 
 Kirkpatrick v. McElroy, 41 N. 
 
 J. Eq. 5;!9, .... 1006 
 V. Turnbull, Addison (Pa.), 
 
 259, 411 
 
 Kirwan v. Kirwan, 2 Cr. & 
 
 M. 617; 4 Tyr. 491, 520, 531, 523 
 Kistner v. Sindlinger, 33 Ind. 
 
 114, ... 184, 186, 824 
 Kitchen v. Lee, 11 Paige, 107, 144, 
 
 553 
 
 V. Reinsky, 42 Mo. 437, - 566 
 
 Kitchin v. Wilson, 4 C. B. N. 
 
 S. 483, 1085 
 
 Kitner v. Whitlock, 88 III. 513, 191, 
 
 200, 444, 978, 979 
 
 Klase V. Bright, 71 Pa. St. 186, 629, 
 
 630, 850, 958 
 Klein v. Keyes, 17 Mo. 326, - 347 
 Kleinhaus v. Generous, 25 Oh. 
 
 St. 667, 370 
 
 Klock V. Beekman, 18 Hun, 
 
 502, .... 701, 1153 
 
 Klotz V. Macready (La.), 2 So. 
 
 Rep. 203, .... 741 
 Knapp V. Edwards, 57 Wis. 
 
 191, - - 816, 970, 984, 987 
 
 V. Levanway, 27 Vt. 298, 245, 
 
 1125 
 
 V. McBride, 7 Ala. 19, - 353, 
 
 361, 691 
 Knauth v. Bassett, 34 Barb. 
 
 31, 566 
 
 Knebell v. White, 2 Y. & C. 
 
 Ex. 15, 910 
 
 Kneib v. Graves, 72 Pa. St. 
 
 104, 377 
 
 Knerr v. Hoffman, 65 Pa. St. 
 
 126, - 858, 860, 865, 928, 1106 
 Knight, Re, 2 Biss. 518; 8 
 
 Bankr. Reg. 430, - - - 832 
 
 V. Ogden, 2 Tenn. Ch. 473, 258, 
 
 1105, 1110, 1111 
 Knode v. Baldridge, 73 Ind. 54, 1006 
 
 cix
 
 Kno.] 
 
 TABLE OF CASES. 
 
 [Lak. 
 
 Knott V. Knott, 6 Oregon, 142, 139, 
 140, 181, 301, 302, 937, 9S6 
 
 V. Stephens, 3 Or. 269, - 731 
 
 Knowles v. Haughton, 11 Ves. 
 
 168 (more fully rep. in CoU- 
 
 yer. Partnership, 198), - - 913 
 Knowlton v. Reed, 38 Me. 246, 59, 70 
 Knox V. Buffington, 50 Iowa, 
 
 320, ... - 323, 325 
 
 V. Gye, L. R. 5 H. L. 656, 718, 
 
 719, 942. 945, 948, 949 
 V. Schepler, 2 Hill (S. Ca.), 
 
 L. 595, ... - 719, 1104 
 Koehler v. Brown, 21 How. Pr. 
 
 235, 858 
 
 Kohler v. Mattlage, 42 N. Y. 
 
 Superior Ct. 247, - - - 636 
 Koningsburg v. Launitz, 1 E. 
 
 D. Smith, 215, - - 541, 892 
 Kottwitz V. Alexander, 34 Tex. 
 
 689, - - - 598. 602, 714 
 KouDtz V. Holthouse, 85 Pa. 
 
 St. 233, - - - 503, 504, 510 
 Krafts V. Creighton, 3 Rich. L. 
 
 273, - - . . 438, 451 
 
 Kramers v. Artliur, 7 Barr, 
 
 165, .... 1H6, 1102 
 
 Kreis v, Gorton, 23 Oh. St. 
 
 468, - - - 53, 542, 726 
 
 Kritzer v. Sweet, 57 Mich. 617, 96 
 Krouskop V. Shontz, 51 Wis. 
 
 204, 217, - - - - 140 
 
 Krueger, Re, 2 Low. 03; 5 
 
 Bankr. Reg. 439, - - 100, 628 
 Kriitz V. Craig, 53 lud. 561, - 738, 
 
 849 
 Kuehnemundt v. Haar, 58 
 
 How. Pr. 464, - - - 933 
 Kuhn V. Abat, 2 Martin (La.), 
 
 N. S. 168, - - - - 655 
 
 V. Newman, 49 Iowa, 424, 28, 
 
 274, 275 
 
 V. Weil, 73 Mo. 213, - 465 
 
 Kuhne v. Law, 14 Rich. L. 18, 825, 
 
 847 
 KuU V. Thompson, 33 Mich. 
 
 685, - - - . 401, 1010 
 
 Kutcher v. Williams, 40 N. J. 
 
 Eq. 436, ... - 136, 138 
 Kyle V. Roberts, 6 Leigh (Va.), 
 
 495, - . . . 296, 417 
 
 L. 
 
 Labouchere v. Dawson, L. R. 
 
 13 Eq. 332, - - - 664, 666 
 V. Tapper, 11 Moo. P. C. 
 
 198, 51 
 
 Lacey v. Hill, 4Cii. D. 537 (aff. 
 
 S. c. as Read v. Bailey, L. R. 
 
 3 App. Cas. 94), - - 395, 839 
 V. Hill. L. R. 8 Ch. App. 
 
 441, 
 
 Lacoste v. Bexar County, 28 
 
 Tex. 420, . - - - 
 Lacy V. Kynaston, 2 Salk. 575; 
 
 1 Ld. Rayni. 688, - 
 
 V. Le Bruce, 6 Ala. 904, - 
 
 V. McNeile, 4 Dow. & Ry. 
 
 816 
 
 700 
 
 385 
 902 
 
 7, 884 
 
 V. Woolcott, 2 Dow. & Ry. 
 
 458, - . - . 628, 750 
 
 Ladd V. Griswold, 9 111. 25 (46 
 
 Am. Dec. 443), - - 551, 832 
 Ladiga Saw Mill Co, v. Smith, 
 
 78 Ala. lOS, - - 106-', 1088, 1093 
 Ladue v. Hart, 4 Wend, 583, - 1079 
 Laffan v. Naglee, 9 Cal. 662, 26, 305 
 Lafonv. Chiun, 6 B. Mon. 305, 446 
 Lafond v. Deems, 81 N. Y. 
 
 507 (52 How. Pr. 41 ; 1 Abb. 
 
 N. Cas. 318), - - 75, 593, 594 
 Logan V. Cragin, 27 La. Ann. 
 
 352, 446 
 
 Lahey V. Kingon, 13 Abb. Fr. 
 
 192; S. c. as Leahy v. King- 
 on, 22 How. Pr. 209, - 380, 1086 
 Laing v. Campbell, 36 Beav. 3, 958 
 Laird v. Chisholm, 30 Scottish 
 
 Jurist, 582, - - - - 485 
 
 Y. Ivens, 45 Tex. 021, - 021 
 
 V. Umberger, 1 I hila. 518, 1049 
 
 L;ike v. Craddock, 3 P. Wnis. 
 
 15S; 1 Eq. Cas. Abr.- 290, - 186 
 
 ex
 
 Lak.] 
 
 TABLE OF CASES. 
 
 [Lat. 
 
 Lake v. Duke of Argyll, 6 Q. B. 
 477, 98 
 
 T. Muuford, 4 Sm. & Mar. 
 
 312, .... 187, 507 
 Laler v. Jordan. 44 Miss. 283, - 361 
 Lallancle v, McRae, 16 La. 
 
 Ann. 193, ... - 446 
 Lainalere v. Gaze, 1 Wash. C. 
 
 C. 435, - . 434, 849, 858, 860 
 Lamar v. Hale, 79 Va. 147, 163, 311 
 I^mb V. Brolaski, 38 Mo. 51, 1082, 
 
 1083 
 V, Durant, 12 Mass. 54 (7 
 
 Am. Dec. 31), 70, 401, 403, 405 
 
 V. Grover, 47 Barb. 317, - 43 
 
 V. Saltus, 3 Brev. (S. Ca.) 
 
 L. 130, 383 
 
 V. Singleton, 2 Biev. (S. 
 
 Ca.)490, - ... 607 
 
 Lambden v. Sharp, 9 Humph. 
 
 224 (34 Am Dec. 642), - 416, 419 
 Lambert's Case, Godbolt, 244, 403, 
 
 437 
 Lambert v. Converse, 22 How. 
 
 Pr. 265, 377 
 
 V. Griffith, 44 Mich. 65, - 962, 
 
 978, 979 
 
 V. Griffith, 50 Mich. 2S6, - 6-J9 
 
 Lamkin v. Pliillips, 9 Porter, 
 
 (Ala.), 98, - - 543, 559, 5G0 
 LAraont v. Fullam, 133 Mass. 
 
 583, 60 
 
 Lamphire v. Cowan, 39 Vt. 
 
 420. 234 
 
 Larapton v. Nicliols, 1 Cint. 
 
 Superior Ct. Rep. 166, - - 986 
 Lancaster Bank v. Myley, 13 
 
 Pa. St. 544. - - - 186. 1102 
 Lane, Re, 2 Low. 333 ; 10 Bankr. 
 
 'Reg. 135, - 566, 836. 837, 838 
 
 V. Arnold, 13 Abb. New 
 
 Cas. 73, 198 
 
 V. Jones, 9 Lea (Tenn.), 
 
 627, - - - - b20, 822 
 
 V. Roche, Rih-y (S. Ca.). 
 
 Ch. 215, - - - . 770, 8;0 
 
 V. Tyler. 43 JL-. 252, - 282 
 
 H cxi 
 
 Lane v. Thomas, 87 Tex. 157, 119, 
 
 121 
 V, Williams, 2 Vernon, 
 
 292, ... - 370, 747, 750 
 Lanford v. Patton, 44 Pa. 584, 1065 
 Lang V. Keppele, 1 Bin. (Pa.) 
 
 123, .... 747, 750 
 
 V. Oppenheim, 96 Ind. 47, 849 
 
 V. Waring, 17 Ala. 145 (25 
 
 id. 625), - - - 291, 349, 727 
 V. Waring, 25 Ala. 625 (CO 
 
 Am. Dec. 533), - 291, 294, 976 
 Langan v. Hewett, 13 Sm. & 
 
 Mar. (Miss.) 122, - 323, 349, 351 
 Langdale, Ex parte, 18 Ves. 
 
 300, 16 
 
 V. Langdale, 13 Ves. 167, 883 
 
 Langdon v. Hughes, 107 Mass. 
 272, 
 
 Lange v. Kennedy, 20 Wis. 
 
 279, - . . - . 
 
 V. Werk, 2 Oh. St. 519, - 
 
 981 
 
 694 
 
 676 
 
 Langmead's Trusts, 7 DeG. M. 
 
 & G. 353, - - 551, 552, 554 
 Lanier v. McCabe, 2 Fla. 32 
 
 (48 Aui. Dec. 173), 328, 343, 884 
 V. Macon, 59 Ga. 187, - 175 
 
 Lannan v. Clavin, 3 Kan. 17, 968, 974 
 L.insing v. Gaine, 2 Johns. 300 
 
 (3 Am. Dec. 422), - 618, 626, 691 
 Lape V. Parvin, 2 Disney, 560, 70 
 Lapham v. Green, 9 Vt. 407, 1022, 
 
 1083- 
 Larkins v. Rhodes, 5 Porter 
 
 (Ala.), 195, ... - 301 
 Lasell V. Tucker, 5 Sneed 
 
 (Tenn.), 33, - 338, 340, 403, 418- 
 Lassiter v. Jackman, 88 Ind. 
 
 118, 854 
 
 Laswell v. Robbins, 39 111. 209, 259, 
 262, 765, 970, 982, 984 
 Latham v. Keuniston, 13 N. H. 
 
 203, - - 759, 1160, 1168, 1169 
 V. Simmons, 3 Jones (N. 
 
 Ca.), L. 27, - 1105, 1111, 1112 
 V. Sk inner, Phil. (N. Ca.) 
 
 Eq. 292, ... - 551
 
 Lat.] 
 
 TABLE OF CASES. 
 
 [Lee. 
 
 Lathrop v. Atwood, 21 Conn. 
 
 117, - - 636, 637, 639, 879 
 
 V. Brown, 23 Iowa, 40, - 1064 
 
 V. Kuapp. 37 Wis. 307, 876, 973 
 
 V. Snell, 6 Fla. 750, - - 195 
 
 Lauferty v. Wheeler, 11 Daly, 
 
 194, 198 
 
 Lauffer v. Cavett, 87 Pa. St. 479, 29 1 
 Laugher v. Pointer, 5 B. & C. 
 
 547, 570, .... 463 
 
 Laughlin v. Lorenz, 48 Pa. St. 
 
 275, 600, 601 
 
 Laurens v. Hawkins, 1 Desaus. 
 
 144, 740 
 
 Laverty v. Burr, 1 Wend. 529, 349, 
 
 362 
 Law, Ex parte, 3 Deac. 541, - 155, 
 
 445 
 
 V. Cross, 1 Black. 533, . 446 
 
 V. Ford, 2 Paige, 310, 993, 998, 
 
 1003 
 
 V. Law, 2 Coll. 41, - - 926 
 
 Lawes v. Lawes, 9 Ch. D. 98, 211, 245 
 Lawrence, Re, 5 Fed. Rep. 349, 416 
 V. Clark, 9 Dana (Ky.), 257 
 
 (35 Am. Dec. 133), . 852, 865 
 V. Dale, 3 Johns. Ch. 23, 317 
 
 V. Robinson, 4 Colorado, 
 
 567, 571 
 
 V. Rokes, 61 Me. 38, - 951, 952 
 
 V. Tayloi", 5 Hill, 107, 292. 299, 
 
 424 
 
 V. Trustees of Leake & 
 
 Watts Orphan House. 2 Den. 
 
 577 (aff. 11 Paige, 80), 737, 750, 
 - — V. Vilas, 20 Wis. 381, 543, 723 
 Lawson v. Bank of London, 18 
 
 C. B. 84, - . - -" . 674 
 
 V. Glass, 6 Colorado, 134, 875 
 
 Laylin v. Knox, 41 Mich. 40, 531, 
 
 533 
 Layton v. Hall, 25 Tex. 404, . 979 
 V. Hastings, 2 Harr. (Del.) 
 
 147, 421 
 
 Lea V. Guice, 13 Sm. & Mar. 
 
 (Miss.) 656, 156, 157, 191, 332, 1151, 
 
 1153 
 
 Leabo v. Goode, 07 Mo. 123, - 527 
 
 V. Renshaw, 61 Mo. 292, 850 
 
 Leach v. Church, 15 Oh. St. 
 
 1G9, 529 
 
 V. Cook, 10 Vt. 239, - - 1117 
 
 V. Kagy, 15 Oh. St. 169, . 537 
 
 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, 
 
 208 
 Leaf V. Coles, 1 De G. M. & G. 
 
 171, 581 
 
 Leahey v. Kingon, 23 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 
 Leavitt v. Comer, 5 Cush. 
 
 129, 23t 
 
 V. Gooch, 13 Tex. 95, 942, 943 
 
 V. Peck, 3 Conn. 124 (8 
 
 Am. Dec. 157), - - - 325 
 Led den v. Colby. 14 N. H. 83 
 
 (40 Am. Dec. 173), - 722,724 
 
 Lee V. Abrams, 12 111. Ill, - 899 
 
 V. Davis, 70 Ind. 464, . 777 
 
 V. Dolan, 39 N. J. Eq. 193, 767 
 
 V. Fontaine, 10 Ala. 755 
 
 (44 Am. Dec. 505), 495, 503, 634, 
 
 047 
 
 V. Haley, L. R. 5 Ch. App. 
 
 674 
 383, 
 1007 
 1142 
 
 161, 
 
 — V. Hamilton, 12 Tex. 413, 
 
 — V. Hardgrave. 3 Mich. 77, 
 
 — V. Lashbrooke, 8 Dana 
 (Ky.), 214, 181, 764, 770, 777, 
 
 781, 785, 798 
 
 — V. Macdonald, 6 Up. Can. 
 
 Q. B. (old series) 130, 319, 427, 1154 
 
 cxu
 
 Lee.] 
 
 TABLE OF CASES. 
 
 [Lev. 
 
 Lee V. Onstott, 1 Ark. 206, 416, 419 
 V. Page, 7 Jur. N. S. 768; 
 
 80 L. J. N. S. Ch. 857, 233, 806, 
 
 987 
 
 V. St:>we, 57 Tex. 444, 693, 707 
 
 V. Templeton, G Gray, 579, 177 
 
 V. Wilkins, 65 Tex. 295, 1105, 
 
 1108 
 Ijeeds Banking Co., In re, L. R. 
 
 1 Ch. App. 231, - - - 51 
 Lees V. Laforest, 14 Beav. 250, 304 
 Leese v. Martin, L. R. 13 Eq. 
 
 77, 1085 
 
 Le Fanu v. Malcomson, 1 H. L. 
 
 C. 637; 8 Irish L. R. 418, - 1031 
 Lefever v. Underwood, 41 Pa. 
 
 St. 505, .... 763 
 
 Lefevre's Appeal, 69 Pa. St. 
 
 123 (8 Am. Rep. 229), - 285, 289 
 Lefevre v. Boyle, 3 B. & Ad. 
 
 877, 1020 
 
 Leffler v. Rice, 44 Ind. 103, - 370 
 Leftwich v. Clinton, 4 Lans. 
 
 176, 127 
 
 Leftwitch v. Leftwitch, 6 La. 
 
 Ann. 346, .... 983 
 I^ggett V. Hyde. 58 N. Y. 272 
 
 (17 Am. Rep. 244), (affg. 1 N. 
 
 Y. Supreme Ct. 418), 23, 47, 50 
 Leggott V. Barrett, 15 Ch. D. 
 
 300, .... 664, 666 
 
 Legli V. Legh, 1 B. & P. 447, 383 
 Leicestershire Banking Co., Ex 
 
 parte, De Gex, 292, - - 842 
 Leiden v. Lawrence, 2 New 
 
 Rep. 283, - - 63, 376, 408 
 Leidy v. Messinger, 71 Pa. St. 
 
 177, - . - . 852, 865 
 Leighton v. Hosmer, 39 Iowa, 
 
 594, 780 
 
 Leinkauff v. Munter, 76 Ala, 
 
 194, 1130 
 
 Leinsinring v. Black, 5 Watts, 
 
 303, .... 283, 284 
 Leland, Re, 5 Ben. 168; 5 
 
 Bankr. Reg. 222, - - 825, 832 
 V. Newton, 102 Mass. 350, 742 
 
 Le Levre v. Castagnio, 5 Col- 
 orado, 564, - - - - 23, 47 
 Lemmon v. Hutchins, 1 Ohio 
 
 Cir. Ct. 388, - - 292, 417 
 
 Lemon v. Fox, 21 Kan. 152, 348, 
 
 411,439 
 Lemons v. State, 50 Ala. 180, 178, 
 
 AS6 
 Lengle v. Smith, 48 Mo. 276, - 35 
 Lenow v. Fones, 48 Ark. 557, 297, 
 
 298 
 Leonard v. Leonard, 1 W. & 
 
 S. 342, 964 
 
 V. New York Tel. Co. 41 
 
 N. Y. 544. - ... 43 
 
 V. Robbins, 13 Allen, 217, 893 
 
 V. Wilde, 36 Me. 265, - 698 
 
 V. Winslow, 2 Grant's Cas. 
 
 Pa. 139, .... 1038 
 
 Le Page v. McCrea, 1 Wend. 
 
 164 (19 Am. Dec. 4G9), - 385, 527, 
 
 531 
 Le Roy 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 Robt. 691, which see). 
 V. Pollock, 3 Robt. (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, 5^4, 1064 
 Leveck v. Shaftoe, 2 Esp. 468, 152, 
 
 1022 
 Level V. Farris, 24 Mo, App. 
 
 445, - - 825, 826, 828, 835 
 Leverson v. Lane, 13 C. B. N. 
 
 S. 278, 362 
 
 Levi V. Karrick, 8 Iowa, 150, - 660, 
 
 974, 1007 
 
 V. Karrick, 13 Iowa, 344, 237, 
 
 777, 938, 954 
 
 CXIU
 
 Lev.] 
 
 TABLE OF CASES. 
 
 CLiT. 
 
 Levi V. Latham, 15 Neb. 509 (48 
 
 Am. Rep. 361). 829, 344, 345, 427 
 Levick's Appeal (Pa.), 2 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. Dec. 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, 1131 
 
 Lewis, Re, 8 Bankr. Reg, 546; 
 
 2 Hughes. 320, - 841, 842, 847, 
 
 848 
 
 V. Alexander, 51 Tex. 578, 101, 
 
 114, 127 
 
 V. Allen, 17 Ga. 300. - 331 
 
 V. Anderson, 20 Oh. St. 
 
 281, .... 187, 295 
 
 V. Culbertson, 11 S. «fe R. 
 
 48, 723 
 
 V. Davidson, 39 Tex. 6C0, 529 
 
 V. Edwards, 7 M. &W. 
 
 300, 856 
 
 V. Greider, 51 N. Y. 231 
 
 (affg. 49 Barb, 605). - . 43 
 
 V. Harrison, 81 Ind. 278, 821 
 
 V. Langdon, 7 Sim. 421, - 658, 
 
 673 
 
 V. Motfett, 11 m. 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, 341, 352, 
 
 626, 690, 691 
 
 V. TJlton, 64 Iowa, 220 
 
 (52 Am. Rep. 436), - . 75 
 
 V. Westover, 29 Mich. 14, 519, 
 
 521 
 
 Liberty Savings Bank v. Camp- 
 bell, 75 Va. 534, 411, 1038, 1043, 
 
 1046 
 Liddell v. Grain, 53 Tex. 549, - 393 
 Ligare v. Peacock, 109 111. 94, 181, 
 589, 770, 781, 795, 798, 1151 
 Lill V. Egan, 89 111. 009, - - 4530 
 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, - 382 
 Linderman v. Disbrow, 31 Wis. 
 
 465, .... 850, 892 
 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, 185 
 
 V. Guy, 57 Wis. 200, - 981, 
 
 1147 
 
 V. Hoke, 21 Ala. 542, 296 
 
 V. Jaff ray, 55 Tex. 636, - 296, 
 
 1072 
 Lindsey v. Edmiston, 25 III. 
 
 359, .... 156, 1150 
 
 Li 11 ford V. Linford, 28 N. J. L. 
 
 113, .... 834, 1114 
 Lingen v. Simpson, 1 Sim. & 
 
 Stu. 600, - - 550, 551, 561 
 
 Lingenfelser v. Simon, 49 Ind. 
 
 82, 524, 535 
 
 Lingood v. Eade, 2 Atk. 501, 
 
 505, 231 
 
 Lininger v. Raymond, 9 Neb. 
 
 40, 1131 
 
 Linn v. Buckingham, 2111. 451, 1121 
 v. Ross, 16 N. J. L. 55, - 477 
 
 Linner v. Dare, 2 Leigh (Va.), 
 
 588, 747- 
 
 Liutner v. Millikin, 47 111. 178, 47, 
 
 1135, 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, - 1073 
 
 cxiv
 
 Lit.] 
 
 TABLE OF CASES. 
 
 [LON. 
 
 Littell V. Fitch, 11 Mich. 525, 348, 361 
 Little V. Cambridge, 9 Cush. 
 
 298, .... 176, 177 
 
 V. Fei-guson, 11 Mo. 598, - 700 
 
 V. Hazzard, 5 Hair. (Del.) 
 
 291, .... 416, 1169 
 
 V. Merrill, 62 Me. 328, - 70 
 
 V. Quinn, 1 Cint. Superior 
 
 Ct. Rep. 379, - - - 527. 533 
 
 V. Snedecor, 53 Ala. 167, 281, 
 
 936 
 IiivL'rpool, 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, 271 
 
 Livingston v. Blancbard, 130 
 
 Mass. 341, - - - 231, 812 
 
 V. Hastie, 2 Caines, 246, - 362 
 
 V. Lynch, 4 Johns. Ch. 
 
 573, ... 17, 213, 434 
 V. Pittsb. & Steub. R. R. 
 
 2 Grant's Cas. (Pa.) 219, 428, 429 
 
 V. Ralli, 5 E. & B. 132, - 233 
 
 — — V. Roosevelt, 4 Johns. 251 
 
 (4 Am. Dec. 273), 13, 317, 334, 349, 
 
 352 
 Uoyd, Re, 23 Fed. Rep. 88 ; 5 
 
 Am. Law Rec. 079, - - 832 
 
 , Re, 23 Fed. Rep. 90, 825, 837 
 
 V. Archbovple, 2 Taunt. 
 
 324, 1022 
 
 V. Ashby, 3 B. & Ad. 23, 199, 
 
 441 
 
 V. Ashby, 2 C. & P. 138, - 439 
 
 V. Carrier, 2 Lans. 364, 783, 785 
 
 V. Freshfield, 2 C. & P. 
 
 333, 
 
 70 
 
 V. Loaring, 6 Ves. 773, 75, 1028 
 
 V. Thomas, 79 Pa. St. 68, 695 
 
 L,()bdell V. Mclits. & Man. Bk. 
 
 33 Mich. 408, - - - 1074 
 
 Lociiraue v. Stewart (Ky.). 3 
 
 S. W. Rep. 903, - - - 708 
 Locke V. Hall, 9 Me. 133, 503, 55^, 
 
 1114 
 
 Locke V. Lewis, 124 Mass. 1, - 1046 
 V. Stearns, 1 Met. 560 (35 
 
 Am. Dec. 383), - - 473, 475 
 Lockhart v. Lytle, 47 Tex. 453, 852, 
 
 943 
 Lockridge v. Wilson, 7 Mo. 500, 1 140, 
 
 1143, 1155 
 Lock wood V. Beckwith, 6 
 
 Mich. 168, - - 306, 446, 1153 
 - — V. Corastock, 4 McLean, 
 
 383, .... 694, 695 
 
 V. Doane, 107 111. 335, 35, 1029 
 
 V. Mitchell, 7 Oh. St. 387, 715 
 
 Lodge, Ex parte, 1 Ves. Jr. 166, 833 
 
 V. Dicas, 3 B. & Aid. 611, 505 
 
 V. Prichard, 1 DeG. J. & 
 
 S. 610, - - - - 825, 828 
 
 V. Weld, 139 Mass. 499, - 671 
 
 Loeb V. Pierpoint, 58 Iowa, 
 
 469 (43 Am. Rep. 122), - 338, 339 
 Loeschigk v. Hatfield, 51 N.Y. - 
 
 660 (aff. 5 Robt. 26 ; 4 Abb. 
 
 Pr. (N. S.) 210), - 726, 731, 732 
 Loesser v. Loesser, 81 Ky. 139, 962 
 Logan V. Bond, 13 Ga. 192, - 446 
 V. Greenlaw, 29 Fed. Rep. 
 
 299, .... 297, 737 
 
 V. Mason, 6 W. & S. 9, - 491 
 
 V. Wells, 76 N. Ca. 416, - 456, 
 
 1051 
 Logic V. Black, 24 W. Va. 1, - 36 
 Lomme v. Kintzing, 1 Mon- 
 tana, 290, - - 322, 323, 1055 
 Loudon 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, 257, 
 
 271, 272 
 London Syndicate v. Lord, 8 
 
 Cii. D. 84, - - - - 972 
 Loney v. Bailey, 43 Md. 10, 535, 537, 
 
 1049 
 Long. Re, 7 Ben. 141; 9 Bankr. 
 
 Reg. 227, - - 562, 563, &32 
 v. Carter, 3 Ired. (N. Ca.) 
 
 L. 338, 849 
 
 cxv
 
 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. 
 
 305, . - - . 485, 794 
 
 V. Story, 10 Mo. 636, 607, 695 
 
 V. Story, 13 Mo. 4, - - 1167 
 
 Longman v. Pole, 1 Moo. & M. 
 
 223, - - . . 383, 896 
 
 Loomis V. Armstrong, 49 Mich. 
 
 521, .... 770, 772 
 V. Ballard, 7 Up. Can. Q. 
 
 B. 366, 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 
 
 (30 Am. Dec. 598), 16, 23, 89, 43 
 
 V. McKenzie, 31 Iowa, 425, 594, 
 
 994 
 — — V. Pearson, Harper, L. (S. 
 
 Ca.) 470, - - - 694, 1093 
 
 Looney v. Gillen waters, 11 
 
 Heisk. (Tenn.) 133, - 761, 917 
 Loosemore v. Radford, 9 M. & 
 
 W. 657, 036 
 
 Lorch V. Ault^an, 75 Ind. 162, 1008 
 Lord V. Anderson, 16 Kan. 185, 388, 
 
 812 
 
 V. Baldwin, 6 Pick. 348, - 155, 
 
 1053, 1083 
 
 T. Davis, 3 Allen,- 131, 140, 141 
 
 V. Devendorf, 54 Wis. 491, 569, 
 
 825 
 
 V. Paiker, 3 Allen, 127, 139, 
 
 140 
 
 V. Proctor, 7 Phila. 630, 16, 
 
 23, 47 
 Loring v. Brackett, 3 Pick. 403, 383 
 Loscombe v. Russell, 4 Sim. 8, 910 
 Lothrop V. Adams, 133 Mass. 
 
 471 (43 Am. Rep. 528), - 467 
 V. Wightraan, 41 Pa. St. 
 
 297, 1111 
 
 Loubat V. Nourse, 5 Fla. 350, 70, 
 
 281, 290, 29;i 
 
 Louden v. Ball, 93 Ind. 232 (18 
 
 Ceutr. L. J. 401, and note), 847 
 Love V. Blair, 72 Ind. 281, - 1061 
 
 V. Carpenter, 30 Ind. 284, 790 
 
 V. Payne, 73 Ind. 80 (38 
 
 Am. Rep. Ill), - - 158, 161 
 
 V. Rhyne, 86 N. Ca. 576, 850 
 
 Lovegrove v. Nelson, 3 M. & 
 
 K. 1, 160 
 
 Lovejoy v. Bowers, 11 N. H. 
 
 404, - - - - 181, 185 
 
 V. Spafford, 93 U. S. 430, 618, 
 
 622 
 Lovel V. Whitridge, 1 McCord, 
 
 L. 7, - - - - - 1079 
 Lovell v. Gibson, 19 Grant's 
 
 Ch. (Up. Can.) 280, - - 739 
 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, 210 
 
 Lowell Natl. Bk. v. Train, 2 
 
 Mich. Lawyer, 27, - - 886 
 Lower v. Denton, 9 Wis. 268, 854, 
 
 871, 873 
 Lowery v. Drew, 18 Tex. 786, 382, 
 
 416, 428 
 Lowry v. Brooks, 2 McCord (S. 
 
 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 lud. 471, 362, 
 
 1068 
 
 V. Beach, 1 M. «& G. 417, 854, 
 
 868 
 V. Bruce (Louisville Chan- 
 cery Ct. 18G4), 4 Am. Law 
 
 Reg. (N. S.) 95, - - - 462 
 
 V. Cole, 57 Mo. 143, - - 81 
 
 V. Coulter, 104 Ind. 81, - 508, 
 
 510, 511 
 
 CXVl
 
 Luc] 
 
 TABLE OF CASES. 
 
 [McC. 
 
 Lucas V. De La Cour, 1 M. & S. 
 
 249, ... 1020, 1021 
 
 V. Sanders, 1 McMull. 311, 410, 
 
 421 
 Luce V. Hartshorn, 7 Lans. 331 
 
 (affd. in56N. Y. C21), - - 820 
 Lucht V. Behrens, 28 Oh. St. 
 
 231, .... 600, 739 
 Ijuckombe v. Ashton, 2 F. & F. 
 
 705, 75 
 
 Luddington v. Bell, 77 N. Y. 
 
 133 (33 Am. Rep. GOl; rev. 11 
 
 J. & Sp. 557), - - 523, 527 
 Ludington v. Taft, 10 Barb. 
 
 447, 936 
 
 Ludlc vv V. Cooper, 4 Oh. St. 1, 298, 
 
 743, 924 
 Ludlurn v. Buckingham, 85 N. 
 
 J. Eq. 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, 73 111. 230, - - - 79 
 ' Lyell V. Saubourn, 2 Mich. 109, 424 
 Lyle V. Jacques, 101 111. 644, - 170 
 Lyles V. Styles, 2 Wash. C. C. 
 
 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. 238, ... 955 
 
 V. Fhnt, 56 Vt. 46, - - 429 
 
 V. Swanton, 53 Me, 100, - 1100 
 
 V. Thompson, 61 Miss. 354, 33, 
 
 322, 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, 621. 624 
 
 Lyon V. Knowls, 3 Best & Sra. 
 
 556, .... 45, 59 
 V. Malone, 4 Porter (Ala.), 
 
 497, 878 
 
 V. Tweddell, 17 Ch. D, 
 
 529, .... 597, 802 
 Lyons v. Jackson, 1 How. 
 
 (Miss.) 474, ... - 1093 
 Lysaght V. Davern, 5 Bli. N. 
 
 R. 1, 489 
 
 Lysagt v. Phillips, 5 Duer, 106, 386 
 Lyth V. Ault, 7 Ex. 667, - - 505 
 
 M. 
 
 McAdams v. Hawes, 9 Bush, 
 
 15, - - 110, 582, 585, 790 
 
 McArthur v. Chase, 13 Gratt. 
 
 683, 906 
 
 V. Ladd, 5 Oh. 514, 41, 43, 
 
 873 
 
 V. Oliver, 53 Mich. 299, - 698 
 
 MrBain v. Austin, 16 Wis. 87, 411 
 MoBirney v. Harran, 5 Irish 
 
 Law Rep. 428, - - - 1017 
 McBride v, Hagan, 1 Wend. 
 
 326, . - 336, 414, 415, 421 
 
 v. Stradley, 103 lud. 465, 770, 
 
 775 
 McCabe v. Franks, 44 Iowa, 
 
 208, - - - 983, 984, 985 
 v. Morrison, 2 Harr. (Del.) 
 
 66, 1022 
 
 McCallum v. Buffalo & Lake 
 
 Huron R'y Co. 19 Up. Can. 
 
 C. P. 117, - ... 67 
 McCameut v. Gray, 6 Blackf. 
 
 233, 942 
 
 McCandless v. Had den, 9 B. 
 
 Mon. 186, - 715, 722, 725, 1029 
 McCann v. McDonald, 7 Neb. 
 
 305, - 331, 1094, 1151, 1154 
 
 McCart v. Lewis, 2 B. Mon. 
 
 207, .... 414, 410 
 
 McCarthy v. Nash, 14 Minn. 
 
 127, .... 1140, 1141 
 V. Pealie, 18 How. Pr, 133, 960 
 
 CXVU
 
 Mc'C] 
 
 TABLE OF CASES. 
 
 [McC. 
 
 McCartney v. Garneau, 4 Mo. 
 
 App. 5G6-7, - - - - 734 
 
 V. Hubbell, 52 Wis. 360, - 722 
 
 V. NixoQ, 2 Dall. G5, n., - 722 
 
 McCarty v. Emlen, 2 Dall. 277; 
 
 2 Yeates. 190, - - - 1103 
 
 V. Nixon, 2 Dall. 05, 66, - 716 
 
 M^Caskill v. Lancashire, 83 N, 
 
 Ca. 393, .... 294 
 
 McCauley v. Cleveland, 21 Mo. 
 
 438, -...,. 257 
 
 V. Fulton, 44 Cal. 355, 184, 281, 
 
 291, 1102 
 V. Gordon, 64 Ga. 221 (37 
 
 Am. Rop. 68), - - - 194 
 McCauly v, McFarlane, 2 De- 
 
 saus. (S. Ca.) 239, - 557, 567, 906 
 McClean v. Kennard, L. R. 9 
 
 Ch. App. 336, - - 795, 974 
 V. Miller, 2 Cranch, C. C. 
 
 620, .... 494, 534 
 :»rClelland v. Remseii, 36 Barb. 
 
 622 ; 14 Abb. Pr. 331 ; 23 How. 
 
 Pr. 175 ; 3 Keyes, 454; 3 Abb. 
 . App. Dec. 74, 401, 406, 518, 686 
 McClinch v. Sturgis, 72 Me. 
 
 288, 4 
 
 McCloskey v. Strickland, 7 
 
 Iowa, 259, .... 1068 
 V. Wingfield, 29 La. Ann. 
 
 141, 653 
 
 McClungv. Capehart, 24 Minn. 
 
 17, - - - - 942, 949, 951 
 McClure v. Hill, 36 Ark. 268, - 465 
 McClurg V. Howard, 45 Mo. 
 
 365, 705 
 
 McClurkan v. Byers, 74 Pa. 
 
 St. 405, 393 
 
 McColl V. Oliver, 1 Stew. (Ala.) 
 
 610, .... 787, 858 
 McConeghy v. Kirk, 68 Pa. St. 
 
 200, 194 
 
 McConnell v. Denver, 35 Cal. 
 
 365, 72, 73 
 
 V. Gardner, Morris (Iowa), 
 
 272, -" - - 75, 1024, 1028 
 V. Hector, 3 B. & P. 113, 110 
 
 McConnell v. Wilkins, 13 Ont. 
 
 App. 438, - - - 349, 853 
 McCord v. Field, 27 Up. Can. 
 
 C. P. 391, 329, 343, 371, 446, 448 
 
 v. Seale, 56 Cal. 262, - 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. 
 
 252, 845 
 
 McCormick v. Gray, 13 How. 
 
 26, 234 
 
 V. Largey, 1 Montana, 
 
 158, 865 
 
 v. McCormick, 7 Neb. 440, 546, 
 
 786 
 McCowin v. Cubbison, 72 
 
 Pa. St. 358, - - - - 695 
 McCoy V. Anderson, 47 Mich. 
 
 502, .... 176, 177 
 
 V. Boley, 21 Fla, 803, 403, 406, 
 
 407 
 
 V. Watson, 51 Ala. 466, - 1064 
 
 McCracken v. Millions, 7 III. 
 
 App. 169, - 484, 510, 511, 808 
 McCrae v. Robeson, 2 Murph. 
 
 (N. Ca.) 127, - - - - 765 
 McCrary v, Menteer, 58 Mo. 
 
 446, 734 
 
 v. Slaughter, 58 Ala. 230, 329 
 
 McCreary t. Van Hook, 35 
 
 Tex. 631, - - - 448, 647 
 McCredie v. Senior, 4 Paige, 
 
 378, 989 
 
 McCrillis v. Hawes, 38 Me. 566, 386, 
 
 471 
 McCulloch V. Judd, 20 Ala, 
 
 703, 1051 
 
 McCullough v. Sommerville, 8 
 
 Leigh (Va.), 415, - 340, 403, 418, 
 
 569, 825 
 M'Culloh V. Dashiell, 1 Har. & 
 
 G. (Md.) 96 (18 Am. Dec. 
 
 271), 747, 825, 828, 832, 833, 884 
 McCully V. McCuUy, 78 Va. 159, 301 
 cxviii
 
 McC] 
 
 TABLE OF CASES. 
 
 [McL 
 
 McCutchen v. Banston, 2 Ga. 
 
 244, - - - - - 331 
 
 V. Rice, 56 Miss. 455, - 1170 
 
 McDauiel v. Wood, 7 Mo. 542, 690 
 McDermot v. Laurence, 7 S. & 
 
 R. 433 (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 
 45 
 543 
 1081 
 
 McDonnell v. Battle House Co, 
 
 67 Ala. 90 (43 Am. Rep. 99), 
 McDougald v. Banks, 13 Ga, 
 
 451, 
 
 McDowell V. Tyson, 14 S. & R 
 
 300, . . - - . 
 McEIroy v. Ludlum, 32 N. J. 
 
 Eq. 828, 701 
 
 V. Melear, 7 Cold. 140, - 698 
 
 McElvey v. Lewis. 76 N. Y. 
 
 373, - - - 571, 994, 998 
 McEwan, Re, 12 Bankr. Reg. 
 
 11; 6Biss. 294, - - 833, 838 
 
 V. Gillespie, 3 Lea, 204, - 944 
 
 McFadden v. Hunt, 5 W. & S. 
 
 468, 882 
 
 McFadgen v. Stewart, 11 
 
 Grant's Ch. (Up. Can.) 272, - 942, 
 
 948 
 McFarland v. Carey, 8 Cow. 
 
 253 (affd. 6 Wend. 297), - 889 
 
 V. Chase, 7 Gray, 462, - 288 
 
 V. Crary, 8 Cow. 253, - 475 
 
 V. Lewis, 8 111. 344, - - 1146 
 
 V. Stewart, 2 Watts, 111, - 657 
 
 McFerran v. Filhert, 102 Pa. . 
 
 St. 73, - - - - 224, 590 
 McGar v. Drake (Tenn. 1877), 5 
 
 Reporter, 347, ... 80 
 McGliee v. Dougherty, 10 Ala. 
 
 863, 858 
 
 McGill V. Do wdle, 33 A r k. 3 1 1 , 64. 
 
 365 
 
 McGill V. McGill, 2 Met. (Ky.) 
 
 258, - - 709, 711, 747, 750 
 McGilway v. Clement, 6 Mo. 
 
 App. 597, - - - 714, 733 
 McGiuty V. Flannagan, 106 U. 
 
 S. 661, 741 
 
 McGlensey v. Cox. 1 Phila. 
 
 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, o6l 
 
 McGowan Bros. Pump & Mach. 
 
 Co. V. McGowan, 22 Oh. St. 
 
 370 (aff. 2 Superior Ct. Rep. 
 
 313), - - - 671, 672, 690 
 McGown V. Sprague, 23 Ala. 
 
 524, .... 554, 500 
 
 McGraw v. Pulling, 1 Freem. 
 
 (Miss.) Ch. 357, - - - 211 
 McGregor v. Cleveland. 5 
 
 Wend. 475, 200, 319, 33S. 427, 453. 
 1067, llo9, 1140 
 
 V. Ellis, 2 Disney, 2SG, 403, 40(), 
 
 559, 560, 824 
 McGrew v. Walker, 17 Ala. 824, 1 149, 
 
 1158 
 McGuire v. Blantou, 5 Humph. 
 
 361, 868 
 
 V. O'Halloran, Hill & D. 
 
 Supp. 85, . - - - 1155 
 
 V. Ramsey, 9 Ark. 518, 285, 942, 
 
 948, 950 
 McGunn v. Hanlin, 29 Mich. 
 
 476, 114, 127, 142, 864, 961, 903 
 
 McHale v. Oertel, 15 Mo. App. 
 
 582, ... - 164, 881 
 Mcllreath v. Margetson, 4 
 
 Doug. 278, - - - - 7(11 
 Mcllroy v. Adams, 32 Ark. 
 
 315, 4 5 
 
 Mcllvaine v. Fi-anklin, 2 La. 
 
 Ann. 622, - - - • IKiS 
 Mclntire v. McLaurin, 2 
 
 Humph. 71 (36 Am. Dec. 
 
 600), 194 
 
 cxix
 
 McL] 
 
 TABLE OF CASES. 
 
 [McN. 
 
 Mclntire v. Miller, 13 M. & W. 
 
 725, 531 
 
 V. Oliver, 2 Hawks (N. 
 
 Ca.), 209, ... - 703 
 
 V. Yates, 104 111. 491, 825. 848 
 
 Mclntyre v. Belcher, 14 C. B. 
 
 N. S. 654, - - - - 219 
 McKaig V, Hebb, 42 Md. 227, - 908, 
 
 930, 912, 945 
 McKay v. Joy, 70 Cal. 581 (9 
 Pac. Rep. 910), 715, 716, 735, 909 
 
 V. Overton, 65 Tex. 82, 786, 880 
 
 V. Rutherford, 12 Jur. 21, 208 
 
 McKean v. Vick, 108 111. 373, 740 
 McKeand v. Mortimore, 1 1 Up. 
 
 Can. Q. B. 428, - 503, 507, 516 
 McKee v. Bank of Mt. Pleas- 
 ant, 7 Oh. 2d pt. 175, 377, 380, 
 
 414 
 
 V. Hamilton, 33 Oh. St. 7, 442, 
 
 451, 453, 472, 524 
 
 V. Stroup, Rice (S. Ca.), 
 
 291, - - ■ - - 381, 411 
 
 McKelvy's Appeal, 72 Pa. St. 
 
 409, - - 583, 942, 943, 945 
 
 McKeniia's Appeal, 11 Pliila. 
 
 84, 377, 452 
 
 McKenna, Ex parte, 3 DeG. F. 
 
 & J. 645, - - 284, 285, 287 
 McKenzie v. Dickinson, 43 Cal. 
 
 119. - - - - - 311 
 
 McKersher, Re, 8 Bankr. Reg. 
 
 409. 1131 
 
 McKillip V. Cattle, 12 Neb. 
 
 477, 504 
 
 McKinney v. Baker, 9 Oregon, 
 
 74, 5G1 
 
 V. Bradbury, Dallam 
 
 (Tex.), 441, - 347,361,441,447 
 
 V. Rosenband, 23 Fed. 
 
 Rep. 785, - - - 561, 1120 
 McKnight v. McCutchen, 27 
 Mo. 436, .... 856 
 
 V. Wilkins, 1 Mo. 220 
 
 [30S], .... 414, 419 
 
 McKowen v. McGuire, 15 La. 
 Ann. 637, - - - 715, 718 
 
 McLain v. Carson, 4 Ark. 164 
 
 (37 Am. Dec. 777), - - 749 
 McLanahanv. EUery, 3 Mason, 
 
 267, 543 
 
 McLane v. Sharpe, 2 Harr. 
 
 (Del.) 481, - - - 415, 1035 
 McLaughlin v. Simpson, 3 
 
 Stew. & Por. (Ala.) 85, 739, 923 
 McLauriii v. McColl, 3 Strob. 
 
 L. 21, 69 
 
 McLean, Re, 15 Bankr. Reg. 
 
 o33, .... 832, 8u8 
 
 McLellan v. Cumberland Bank, 
 
 24 Me. 534, .... 385 
 V. Detroit File Works, 56 
 
 Mich. 579, .... 8 
 
 McLelland v. Rulgeway, 12 
 
 Ala. 482, - - - - 1160 
 
 McLeod V. Bullard, 84 N. Ca, 
 
 315, 332 
 
 V. Lee, 17 Nev. 103, - 332 
 
 McLewer v. Hall, 103 K Y. 
 
 039, 99 
 
 McLinden v. "Wentworth, 51 
 
 Wis. 170, - - 199, 446, 507 
 McLucas V. Durham, 20 S. Ca. 
 
 302, .... 632, 959 
 McLure v. Ripley, 2 Macn. & 
 
 G. 274, 312 
 
 McMahan v. Thornton, 4 Mon- 
 tana, 46, ^10 
 
 McMahon v. McClernan, 10 W. 
 
 Va. 419, - 300, 571, 792, 1007 
 V. O'Donnell, 20 N. J. Eq. 
 
 306, 43 
 
 V. Rauhr, 47 N. Y. 07, 75, 1028 
 
 McMichael v. Raoul, 14 La. 
 
 Ann. 307, - - - - 771 
 McMillan v. Hadley, 78 Ind. 
 
 590, .-"... 1103 
 McMuUan v. Mackenzie, 2 G. 
 
 Greene (la.), 368, - 361.1135,1138 
 McMurry v. Fletcher, 24 Kan. 
 
 574; 28 Kan. 337, - - 296 
 
 McNair v. Fleming, cited in 3 
 
 Dow. 218, 229, - - • 107 
 V. Piatt, 46 111. 211, - - 411 
 
 cxx
 
 McN.] 
 
 TABLE OF CASES. 
 
 [Mad. 
 
 McNair v. Ragland, 1 Dev. Eq. 
 
 516, .... 704, 787 
 
 V Rewey, 62 Wis. 167, - 445, 
 
 1131, 1133 
 McNally v. Kerswell, 37 Me. 
 
 550, 714 
 
 McNamara v. Dratt, 33 Iowa, 
 
 385, 1144 
 
 McNaughten v. Partridge, 11 
 
 Oh. 223 (38 Am. Dec. 731), - 377, 
 
 420, 421, 422 
 McNaughton's Appeal, 101 Pa. 
 
 St. 550, - - 416, 544, 567, 1045 
 McNaughton's Appeal, 103 Pa. 
 
 St. 368, 377 
 
 McNaughton v. Moore, 1 Hay w. 
 
 (N. Ca.) 189, - - - - 580 
 McNeal v. Blackburn, 7 Dana, 
 
 170, 534 
 
 McNeely v. Haynes, 76 N. Ca. 
 
 122, .... 408, 1120 
 
 McNeil V. Congregational Soc. 
 
 60 Cal. 105, - - 291, 293, 294 
 McNeill V. Reid, 9 Bing. 68, - 870 
 
 V. Reynolds, 9 Ala. 313, - 1147 
 
 McNeillie v. Acton, 4 DeG. M. 
 
 & G. 744, .... 601 
 McNeish v. Hulless Oat Co. 57 
 
 Vt. 316, 72, 316, 319, 322, 430, 580, 
 
 1153 
 McNicol V. McEwen, 3 Up. 
 
 Can. Q. B. (old ser.) 485, - 858 
 McNutt V. King, 59 Ala. 597, 583 
 V. Strayhorn, 39 Pa. St. 
 
 269, ... - 190, 339 
 McPeters v. Ray, 85 N. Ca. 462, 960 
 McPherson v. Pemberton, 1 
 
 Jones, L. 378, - 116, 122, 1105 
 
 V. Rathbone, 11 Wend. 98, 1155 
 
 McQuewans v. Hamlin, 35 Pa. 
 
 St. 517, 349 
 
 McRae v. McKenzie, 2 Dev. & 
 
 Bat. Eq. 232, - 764, 910, 968 
 
 McRobert v. Crane, 49 Mich. 
 
 483, 1071 
 
 McShcrry v. Brooks, 46 Md. 
 
 103, - - 801, 880, 881. 8b7 
 
 McStea v. Matthews, 50 N. T. 
 166; 91 U. S. 7, - - 86,682 
 
 McWhorter v. McMahan, 
 Clarke, Ch. 400; 10 Paige, 
 380, 299 
 
 V. Sell, 66 Ga. 139, - - 1170 
 
 McWilliams Mfg. Co. v. Blun- 
 dell, 11 Fed. Rep. 419; 22 
 Pat. Off. Gaz. 177, - - 206 
 
 Mabbett v. White, 12 N. Y. 442 
 (explained in Petlee v. Orser, 
 6 Bosvv. 123, 137j, - - 180, 403 
 
 Mardougall v. Jersey Imperial 
 Hotel Co. 2 Hem. & M. 528, 432 
 
 Machinists' Nat'l Bank v. Dean, 
 
 124 Mass. 81, - - - 72, 73, 580 
 
 Macintosh v. Fatinan, 38 How. 
 
 Pr. 145, 503 
 
 Mack V. Spencer, 4 Wend. 411, I0o8 
 
 V. Woodruff, 87 III. 570, - 452, 
 
 821, 8-:9, 920 
 
 Mackay v. Blood good, 9 Johns. 
 
 285, - - - 336, 416, 419 
 
 Mackenna v, Parkes, 36 L, J. 
 
 Ch. 306; 15 W. R. 217, - 805, 807 
 
 Mackey, Re, 2 A. «& E. 250, - 234 
 
 V. Auer, 8 Hun, 180. - 858 
 
 Mackinnon Pen Co. v. Foun- 
 tain Ink Co. 48 N. Y. Su- 
 perior Ct. 442, - - - 678 
 
 Macklin v. Crutcher, 6 Bush, 
 401, 205, 439, 440, 443, 446. 523, 527 
 
 V. Kerr, 28 Up. Can. C. P. 
 
 90, ... - 321, 349 
 
 Maclae v. Sutherland, 3 E. & 
 
 B. 1, 340 
 
 Maclay v. Freeman, 48 Mo. 234, 1085 
 
 Macomber v. Wright, 35 Me. 
 
 156, .... 1125, 1127 
 
 Macy V. Combs, 15 Ind. 469, 23, 43, 
 
 1155 
 
 V. De Wolf, 3 Woodb. & 
 
 M. 193, 70 
 
 Maddeford v. Austwick, 1 Sim. 
 80 (aff'd 2 Myl. & K. 279), - 309 
 
 M iddofk V. Astbury, 32 N. J. 
 I Eq 181, - - - 247, 298, 1012 
 XX i
 
 TJad.] 
 
 TABLE OF CASES. 
 
 [Man. 
 
 Matldox V. Stephenson, 60 Ga. 
 
 125, 985 
 
 Madge v. Puig, 12 Han, 15, 873, 874 
 Madgwick v. W imble, 6 Beav. 
 
 495. ... - 51, 249 
 Maffet V. Leuckel, 93 Pa. St. 
 
 468, .... 440, 450 
 Mafflyn v. Hathaway, 106 
 
 Mass. 414, - - - - 542 
 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. Men. 
 
 168, - - 301, 597. 608, 012 
 
 Magovern v. Robertson, 40 
 
 Hun, 106, - - - - 23,47 
 Mahan v. Sherman, 7 Blackf. 
 
 378. ... - 880, 901 
 
 Maher v. Bull, 44 111. 97, 591, 761. 
 764, 780. 988, 994 
 Mahnke v. Neale, 23 W. Va. 
 
 57, 962 
 
 Maiden v. Webster, 30 Ind. 
 
 517, 200 
 
 Maier v. Canavan, 8 Daly, 272, 534 
 
 V. Horman, 4 Daly, 168, 676 
 
 Main v. Howlaud, Ricli. Eq. 
 
 Cas. 352. - - - 954, 958 
 
 Maingay v. Lewis, Irish Rep. 
 
 5 Com. L. 229 (rev'g 3 id. 
 
 495), 533 
 
 Mainwaring v. Newman. 2 B. 
 
 6 P. 120, - - - 883, 900 
 Mair v. Bacon, 5 Grant's Ch. 
 
 (Up. Can.) 338, - - 164, 165 
 
 V. Beck (Pa.), 2 All. Rep. 
 
 218, - - - 379,380,688 
 
 V. Glennie, 4 Jl. & S. 240, 59 
 
 Maitland v. Goldney, 2 East, 
 
 4-20, 1051 
 
 Major V. Hawkes, 12 111. 298, 681, 
 
 682 
 Malbec de Montjoc v. Sperrv, 
 
 95 U. S. 401, - 974. 976, 1075 
 
 Malcolinson v. Malcohnson, 1 
 Irish L. R. Ch. D. 228, 441, 453a 
 
 ex 
 
 Malley v. Atlantic Ins. Co. 51 
 
 Conn. 222, - - 256, 263, 271 
 Maltby v. Northwestern Va. R. 
 
 R. Co. 16 Md. 422, 316, 317, 322, 
 
 373, 430 
 Manchester v. Mathewson, 3 
 
 R. I. 237, - - - - 942 
 Manchester Bank, Ex parte, 12 
 
 Ch. D. 917, - - - - 563 
 Manchester, etc. Bank, Ex 
 
 parte, L. R. 18 Eq. 249, - 842 
 Manegold v. Dulau, 30 Wis. 
 
 541, .... 543, 1017 
 
 Manhattan Co. v. Ledyard, 1 
 
 Caines, 192. - - - - 1008 
 Manhattan Brass &Mfg. Co. v. 
 
 Sears, 45 N. Y. 797 (6 Am. 
 
 Rep. 177); rev. s. C. 1 
 
 Sweeney, 426, - - 17, 47 
 
 Manhattan Ins. Co. v. Web- 
 ster, 59 Pa. St. 227, - 261, 271 
 Manley v. Taylor, 50 N. Y. 
 
 Sup. Ct, 26, - - - - 818 
 Mann v. Flanagan, 9 Oregon, 
 
 425, . - . . 770, 777 
 
 V. Higgins, 7 Gill, 265, - 823^ 
 
 V. Locke, 11 N. H. 246, - 701, 
 
 704 
 
 V. Taylor, 5 Heisk. 267, - 59 
 
 Manning v. Biickell, 2 Hayw. 
 
 (N. Ca.) 13:J, - - 081, 722, 1006 
 
 V. Gasharie, 27 Ind. 399, - 76 
 
 V. Hays, 6 Md. 5, 358, 36 J, 372, 
 
 401 
 
 V. Smith, 16 Nev. 85, - 722 
 
 V. Williams, 2 Mich. 105, 749 
 
 Manny v. Frasier, 27 Mo. 419, 503 
 Manson, Town of, y. Ware, 63 
 
 Iowa, 345. - - - 101, 1154 
 Mant V. Mainwaring, 8 Taunt. 
 
 139; 2 Moore, 9, - - - 1167 
 Manuel v. Escolle, 65 Cal. 110, 735 
 Manuf. & Mech. Bk. v. Gore, 
 
 15 Mass. 75 (8 Am. Dec. 83), 479 
 Manufacturers', etc. Bank v. 
 Winsiiip, 5 Pick. 11 (16 Am. 
 Dec. 369), - 192, 361, 443, 445 
 xii
 
 Man.] 
 
 TABLE OF CASES. 
 
 [Mar. 
 
 551 
 441 
 
 10G7 
 
 393 
 
 133 
 428 
 
 Manville v. Parks, 7 Colorado, 
 
 128, - - - 322, 329, 374 
 Maquoketa, City of, v. Willey, 
 
 35 Iowa, 323, 
 Mare v. Charles, 5 E. & B. 978, 
 Maret v. Wood, 3 Cranch, C. 
 
 C. 2, 
 
 Marieuthal v. Am burgh, 2 Dis- 
 ney, 586, - - - 1005, 1088 
 Marietta & Cin. R. R. v. 
 
 Mowry, 28 Hun, 79, 
 Marine Bank v. Ogden, 29 III. 
 
 248, 
 
 Marine Co. v. Carver, 42 111. 67, 
 Maritime Bank of Bangor v. 
 
 Rand, 24 Conn. 9, - - 105G, 1065 
 Markham v. Buckingham, 21 
 
 Iowa, 494, - - - 1059, 10G4 
 
 V. Gehan, 43 Mich. 74, - 1103 
 
 V. Hazeu, 48 Ga. 570, 199, 347, 
 
 441, 510, 515 
 
 V. Jones, 7 B. Mon. 456, 91, 91 
 
 Marks v. Hill, 15 Gratt. 400, 565, 567 
 
 V. Say ward, 50 Cal. 57, - 184 
 
 V. Sigler, 3 Oh. St. 358, - 1100 
 
 V. Stein, 11 La. Ann. 509, 17, 
 
 32. 853 
 Marlatt v. Scantland, 19 Ark. 
 
 443, 715, 716 
 
 Marlett v. Jackman, 3 Allen, 
 
 287, - - 315, 340, 580, 610, 1073 
 Marlin v. Kirksey, 23 Ga. 164, 543, 
 
 550, 561 
 Marquand.v. N. Y. Mfg. Co. 17 
 
 Johns. 525, 577, 583, 585, 788, 812 
 
 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, 552. 563, 641 
 
 V. Davis, 33 Kan. 326, 283, 301 
 
 V, Dawes, 3 Biss. 351, - 43 
 
 V. Gold, 2 Pick. 285, 339, 350, 365 
 
 V. Keating, 1 Bing. N. C. 
 
 198; 2 CI. & Fin. 250 (affirms 
 
 Keating v. Marsh, 1 Mont. 
 
 & A. 583), .... 474 
 
 Marsh v. Mead, 57 Iowa, 535, - 1063 
 V. Northwestern Nat'l Ina. 
 
 Co. 3 Biss. 351, ... 29 
 V. Russell, 66 N. Y. 283 
 
 (rev, 2 Lans. 340), - 27, 113 
 V. Thompson Nat'l Bk. 2 
 
 111. App. 217, - 349, 358, 867 
 
 Marsliall v. Colmau, 2 Jac. & 
 
 W. 266, - - - - 199, 988 
 
 V. Johnson, 33 Ga. 500, - 300 
 
 v. McGregor, 59 Barb. 519, 1101 
 
 V. Watson, 25 Beav. 501, - 990 
 
 V. Winslow, 11 Me. 58 (25 
 
 Am. Dec. 264), - - - 875 
 Marsteller v. Weavei', 1 Gratt. 
 
 391, 949 
 
 Marston v. Dewberry, 21 La. 
 
 Ann. 518, - - - 1101, 1113 
 
 V. Gould, 69 N. Y. 220, - 56 
 
 Marten v. Van Schaick, 4 
 
 Paige, 479, 660, 993, 994, 998, 1003. 
 
 1007 
 Martien v. Manheim, 80 Pa. 
 
 St. 478, 107;; 
 
 Martin v. American Express 
 
 Co. 19 Wis. 3J6, - - - 10:.> 
 V. Crump, 2 Salk. 444; 1 
 
 Ld. Ray. 340; Comb. 274, - 733 
 
 V. Davis, 21 Iowa, 535, - 1099 
 
 V. Fewell, 79 Mo. 401, - 5, 611 
 
 V. Good, 14 Md. 398, - 893 
 
 V. Kirk, 2 Humph. 529, 695, 
 
 700 
 
 V. Morris, 02 Wis. 418, 281, 294, 
 
 295, 297 
 
 V. Moulton, 8 N. H. 504, - 487 
 
 V. Searles, 28 Conn. 43, 618, 622 
 
 V. Smith, 25 W. Va. 579, 281, 
 
 290 
 
 V. Solomon, 5 Harr. (Del.) 
 
 344, 858 
 
 V. Stubbings, 29 111. App. 
 
 381, 881 
 
 V. Thraslier, 40 Vt. 460, 336 
 
 V. Walton, 1 McCord (S. 
 
 Cn.), L. 16, - 617, 618, 621, 695 
 
 V. Young. 85 N. Ca. 156, 103!» 
 
 CXXUl
 
 Mar.] 
 
 TABLE OF CASES. 
 
 [May. 
 
 Martyn v. Gray, 14 C. B. N. S. 
 
 824, - - - - 90, 91, 99 
 
 V. Knowlrs, 8 T. R. 146, 274 
 
 Marvin v. Buclianan, 62 Barb. 
 
 4G8, 443 
 
 V. Dutcher, 26 Minn. 391, 1171 
 
 V. Wilber, 52 N. Y. 270, 315, 154 
 
 Warwick, Re, 2 Ware, 233, 832, §33, 
 
 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. 612 
 
 (affd. 15 id. 64), - - 149, 1087 
 
 V. Denison, 15 Wend. 04, 148, 
 
 149 
 V. Eldred, 6 Wall. 231 ; 7 
 
 Am. Law Reg. (N. S.) 402, 454, 
 
 535. 537, 1086 
 
 V. Hackett, 4 Nev. 420, - 43 
 
 V. Jouett, 2 Dana, 107, - 385 
 
 V. Parker, 16 Grant's Ch. 
 
 (Up. Can.)2o0, - 187,291,295 
 
 V. Partridge, 66 N. Y. 633, 323 
 
 V. Potter, 26 Vt. 722, - 39, 43 
 
 V. Rice, 66 Iowa, 174, - 1121 
 
 V. Runisey, 1 Camp. 384, 441 
 
 V. Titlany, 45 111. 31)2, 529, 534, 
 
 707, 711, 730,749, 750 
 
 V. Tipton, 4 Cal, 276, 275, 276, 
 
 403 
 V. Wickersham, 4 Watts 
 
 & S. 100, - - - 524, 527 
 Massey v. Pike, 20 Ark. 92, - 419 
 
 V. Tingle. 29 Mo. 437, - 94D 
 
 Masters v. Freeman, 17 Oh. St. 
 
 323, ... - 863, 1029 
 
 M.asterson v. Goodlett, 46 Tex. 
 
 402. 723 
 
 Mathers v. Green, L. R. 1 Cli. 
 
 App. 29, .... 69 
 
 Mathews V. FelcU. 25 Vt. 536, 115G 
 Mathewson v. Clarke, 6 How. 
 
 122, - - - 164, 167, 927 
 
 Matlack v. James, 13 N. J. Eq. 
 
 120, - 184, 281, 291, 295, 440 
 
 ex 
 
 Matlock V. Matlock, 5 Ind. 403, 281, 
 
 285, 290, 297 
 Matney v. The Gregg Bros. 
 
 Co. 19 Mo. App. 107, - 722,724 
 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. .... 582 
 
 V. Wallwyn, 4 Ves. 118, - 958, 
 
 964 
 Mauck V. Mauck, 54 III. 281, - 977 
 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 Mtl. 545, 338 
 Mauldin v. Branch Bk. at Mo- 
 bile, 2 Ala. 502, 349, 352, 362, 618, 
 
 621 
 Maulson v. Peck, 18 Up. Can. 
 
 Q. B. 113, .... 23 
 Maund v. Allies, 5 Jur. 860, 958, 964 
 Mauney v. Coit. 80 N. Ca. 300 
 
 ^30 Am. Rep. 80), - - 095, 696 
 Maunsell v. Willett, 30 La. 
 
 Ann. 322, - - - - 43, 59 
 Mawmau v. Giliett, in note to 
 
 2 Taunt. 324, - - - 1022 
 
 Maxey v. Averill, 2 B. Mon. 
 
 107, 749 
 
 V. Strong, 53 Miss. 280, - 694, 
 
 695, 700 
 Maxwell v. Allen, 78 Me. 33, - 250 
 
 V. Day, 4") ind. 509, 523, 524. 527 
 
 V. Gibbs, 32 Iowa, 32, 102, 109 
 
 V. Port Teuuant Co. 24 
 
 Beav. 495, .... 1012 
 V, Wheeling, 9 W. Va. 
 
 206, - - - 184, 189, 824 
 
 May, Re, 17 Baukr. Reg. 192, 842, 
 
 848 
 
 , Re, 19 Bankr. Reg. 101, - 838 
 
 xiv
 
 May.] 
 
 TABLE OF CASES. 
 
 [Mel, 
 
 May V. Hewitt, 33 Ala. 161, - 441 
 Mayberg v. Steagall, 51 Tex. 
 
 351, 558 
 
 Mayberry v. Bainton, 2 Harr. 
 (Del.) 24, ... 349, 1088 
 
 V. Willoughby, 5 Neb. 368 
 
 f25 Am. Rep. 491), - - 704 
 
 Maybiii v. Moorman, 21 S. Ca. 
 
 346, 54") 
 
 Mayer v. Clark, 40 Ala. 259, - 559, 
 
 560, 824 
 
 V. Taylor, 69 Ala. 402, - 646 
 
 Mayliew's Case, 5 De G. M, & 
 
 G. 837, .... 160, 187 
 May hew v. Heri'ick, 7 C. B. 
 
 229. .... 274, 1108 
 
 Mayuard v. Briggs, 26 Vt. 94, 1022, 
 
 1025 
 
 V. Fellows, 43 N. H. 255, 435. 
 
 453a, 1068 
 996 
 959 
 139 
 
 V. Railey, 2 Nev. 313, 
 
 Mayo V. Bosson, 6 Oh. 525, 
 
 V. Soyster, 30 Md. 402, ■ 
 
 Mayou, Ex parte, 4 DeG. J. & 
 
 S. 664 ; 11 Jur. N. S. 433 ; 12 
 
 L. T. N. S. 629, . . - 562 
 Mayrant v. Marston, 67 Ala. 
 
 453, 66 
 
 May son v. Beazley, 27 Miss. 
 
 106, - - - . 763, 794 
 Meacliam v. Batchelder, 3 Pin. 
 
 (Wis.)281; 3Chand. 316, - 1068 
 Mead v. Bank of Fayetteville, 
 
 2 Bankr. Reg. [65] 173; 6 
 
 Blatch. 180; 7 Am. Law 
 
 Reg. (N. S.) 818, ... 841 
 
 V. Byington, 10 Vt. 116, . 742 
 
 V. Raymond, 52 Mich. 14, 724 
 
 V. Shepard, 54 Barb. 474, 334 
 
 Meader v. Leslie, 2 Vt. 569, 723, 724 
 
 V. Malcolm, 78 Mo. 550, . 448 
 
 V. Scott, 4 Vt. 26, . . 723 
 
 Meador v. Hughes, 14 Bush 
 
 (Ky.), 653, 27, C8, 507, 558, 822 
 
 Meaher v. Cox, 37 Ala. 201 (S. 
 
 C. Ala. Sel. Cas. 15()). 26. 67, 158, 
 161, 233, !:76, 594 
 ex 
 
 Meason v. Kaine, 63 Pa. St. 
 
 335, - , - - 301, 865, 1012 
 
 Mebane v. Spencer, 6 Ired. L. 
 
 423, 529 
 
 Mechanics' Bank v. Foster, 19 
 
 Abb. Pr. 47; 44 Barb. 87; 29 
 
 How. Pr. 408, . . - 352 
 
 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, 295, 577, 585, 586, 927 
 Mechanics' & Farmers' Bk. v. 
 
 Dakin, 24 Wend. 411, 107, 196, 439 
 Mechanics' & Traders' Ins. Co. 
 
 V. Richardson, 33 La. Ann. 
 
 1308 (39 Am. Rep. 290), 362, 446 
 Mecutchen v. Kennady, 27 N. 
 
 J. L. 230. - - - 358, 362 
 Med berry v. Soper, 17 Kan. 
 
 369, . . . 322, 457, 527 
 Medbury V. Watson, 6 Met. 246 
 
 (3'J Am. Dec. 726), - - 1034 
 
 Meddl V. Collier, 16 Oh. St 
 
 599, 4, 7 
 
 Med win v. Ditcham, 47 L. T. 
 
 N. S. 250, .... 939 
 Meech v. Alien, 17 N. Y. 300, . 825, 
 
 847, 8J8 
 Meehan v. Valentine, 29 Fed. 
 
 Rep. 276, . . . . 23, 47 
 Meeker v. Thompson, 43 Conn. 
 
 77, 1079 
 
 Meggett V. Finney. 4 Strobh. 
 
 (S. Ca.)L. 220, - . . 704 
 Meily v. Wood, 71 Pa. St. 488 
 
 (10 Am. Rep, 719) (rev. 8 
 
 Phila. 517), - 173, 186, 289, 1102 
 Mellendy v. New Engl. Prot. 
 
 Union, 36 Vt. 31, - - . 20:) 
 
 Mellersh v. Keen, 27 Beav. 236, 574. 
 
 581, 597, 664, 769, 773, 794 
 
 V. Keen, 28 Beav. 453, . 661 
 
 Mellinger v. Parsons, 51 Iowa, 
 
 58, 193, 57G 
 
 XV
 
 Mi^L.] 
 
 TABLE OF CASES. 
 
 [MiG 
 
 l^Hltzer V. Doll, 91 N. Y. 3G5, - 1147 
 Melvin, Re, 17 Bankr. Reg. 
 
 543, - - - 500, 564, 1171 
 Menagh v. Wliitwell, 52 N. Y. 
 
 146 (11 Am. Rep. 683), 189, 553, 
 557, 562, 566, 567, 1111 
 Mendenhall, Re, 9 Bankr. Reg. 
 
 497. 5 
 
 V. Benbow, 84 N. Ca. 640, 290, 
 
 294, 719, 823 
 Jlercantile Bk. v. Cox, 88 Me. 
 
 500, 443 
 
 Mercein v. Andrus, 10 Wend. 
 
 461, . - - - 349, 368 
 
 Mercer v. Say re, Anth. (N. Y.) 
 
 119, 7C0 
 
 Merchant v. Belding, 49 How. 
 
 Pr. 344, 349 
 
 Merchants' Bk. v. Rudolf, 5 
 
 Neb. 527, 
 
 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, - - - - 822 
 Merot V. Burnand, 4 Russ. 247; 
 
 2 Bli. N. S. 215, - - - 287 
 Meriick v. Brainard, 38 Barb. 
 
 574, ----- 
 V. Gordon, 20 N. Y. 93, - 
 
 158 
 66 
 70 
 
 Merrill v. Bartlett, 6 Pick. 46, 
 
 V. Green, 55 N. Y. 270, 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, 33 N. J. L. 32 
 
 (20 Am. R.'p. 362), - - 705 
 
 V. Dickey, 38 Mich. 41, 29:?, 2d4, 
 
 COO, 715 
 
 Merritt v. Pollys, 10 B. Mon. 
 355, - - 607. 604, 703, 706 
 
 V. Walsh, 32 N. Y. 085, 
 
 089, 70 
 
 Merriwether v. Hardeman, 51 
 
 Tex. 436, 785, 814. 852, 801, 961 
 Mershon v. Hobensack, 22 N. 
 
 J. L. 372, - 1050, 1154, 1156 
 
 Merwin v. Playford, 3 Robt. 
 
 702. 43 
 
 Meserve v. Andrews, 104 Mass. 
 
 360, 43 
 
 V. Andrews, 1€6 Mass. 
 
 419, - - 230, 231, 767, 815 
 Messer v. Messer, 59 N. H. 375, 281, 
 
 291 
 Messner v. Lewis, 20 Tex. 221, 193, 
 
 195 
 Metcalf V. Bruin, 12 East, 400 
 (aff. Metcalfe v. Bruin, 2 
 Camp. 422), - - - - 651 
 
 V. Fonts, 27 111. 110, - 887 
 
 V. Officer, 1 McCrary, 325; 
 
 2 Fed. Rep. 040, - 150, 152, 1155, 
 
 1150 
 V. Redmon, 43 111. 264, 78, 83 
 
 Metcalfe v. Rycroft, 6 M. & S. 
 
 75, .... 383, lOlfl 
 
 Mi^zner V. Baldwin, 11 Minn. 
 
 150, 78 
 
 Mexican Mill v. Yellow Jacket 
 
 Mine, 4 Nev. 40, - - 1018,1065 
 Mcyberg v. Steagall, 51 Tex. 
 
 351, 1109 
 
 Meyer v. Atkins, 29 La. Ann. 
 
 586, . - - - 523, 694 
 
 V. Krohn, 114 111. 574, 164, 168, 
 
 616 
 V. Schacher, 33 L. T. N. S. 
 
 37, 
 
 V. Sharpe, 5 Taunt. 74, 
 
 78 
 258 
 
 40 
 110 
 
 Meyers v. Field, 37 Mo. 434, • 
 Meymot'sCase, 1 Atk. 193, 
 Meymottv. Meymott, 31 Beav. 
 
 445, 786 
 
 Micliael v. Workman, 5 W. 
 
 V,t. 391, - - 193. 19\ 341, 370 
 cxxvi
 
 Mic] 
 
 TABLE OF CASES, 
 383 
 
 [Mri„ 
 
 Michell, Ex parte, 14 Ves. 597, 
 Michigan Air Line R'y v. 
 
 Mellen, 4-t Mich. 3-31, - 332, 429 
 Micliigau Ins. Bank v. Eldred, 
 
 9 Wall. 544, - - - - 322 
 Mick V. Howard, 1 Ind 250, 194, 401 
 Mickle V. Peet, 43 Conn. G5, 849, 851 
 Middled itch v. Sharland, 5 
 
 Ves. 87, 904 
 
 Mifflin V. Smith, 17 S. & R. 
 
 165, - 202, 203, 216, 443, 445 
 Mil burn v. Codd, 7 B. & C. 
 
 419, 854 
 
 Miles' Claim, L. R. 9 Ch. 635, - 439 
 Miles V. Ogden, 54 Wis. 573, - 489, 
 
 495 
 
 V. Pennock, 50 N. H. 564, 847 
 
 V. Wann, 27 Minn. 50, 54, 1004 
 
 789 
 993 
 
 772 
 882 
 
 Mil ford V. Milford, McCl. & 
 
 Y. 150, 957 
 
 Millv. Sheibly, 68 Ga. 556, - 33 
 Millar v. Craig, 6 Beav. 433, - 782, 
 
 9G4 
 Millaudon v. Sylvestro, 8 La. 
 
 263, 
 
 Mill bank v. Revett, 2 Mer. 405, 
 MUler's Appeal (Pa.), 7 Atl. 
 
 Rep. 190, - - - - 
 Miller v. Andres, 18 Ga. 366, - 
 
 V. Bartlet, 15 S. & R. 137, 16, 43 
 
 V. Brigham, 50 Cal. 615, 158, 
 
 276, 577, 585, 756, 927 
 V. Cliandler, 29 La. Ann. 
 
 88, 43 
 
 V. Clarke, 37 Iowa, 325, - 825 
 
 V. Consolidation Bank, 48 
 
 Pa. St. 514, - - - 359, 373 
 V. Creditors, 37 La. Ann. 
 
 604, 106 
 
 V. Dow, 17 Vt. 235, - - 428 
 
 V. Estill, 5 Oh. St. 508, - 551, 
 
 560, 832, 833 
 
 V. Florer, 15 Oh. St. 148, 687, 
 
 1082 
 
 V. Harris, 9 Baxter, 101, - 944 
 
 V. Hiaes, 15 Ga. 197, 329, 344, 
 
 361, 362, 374 
 I czxvii 
 
 Miller v. Hoffman, 20 Mo. App. 
 
 199, 780 
 
 V. House, 67 Iowa, 737, - 424 
 
 V. Howard, 26 N. J. Eq. 
 
 166, ... - 982, 985 
 
 V. Hughes, 1 A. K. Mar. 
 
 (Ky.) 181, - - 44, 323. 33.5 
 
 V. Jones, 39 111. 54, - 715, 739, 
 
 765, 923, 101)1, 1003 
 
 V. Knauff, 2 Pa. L. J. 
 
 Rep. 11, .... 903 
 
 V. Lord, 11 Pick. 11, 785, 78'.), 
 
 939 
 
 V. McClauachan, 1 Yeates 
 
 (Penn.), 144, .... 1168 
 
 V. Manice, 6 Hill, 114, 348, 370, 
 
 445, 4S0 
 
 V. Marx, 65 Tex. 131, 136, 137, 
 
 139 
 
 V. Miller, 8 W. Va. 542^ - 526, 
 
 694 
 
 V. Neimerick, 19 111. 172, 710 
 
 V. Northern Bank, 34 Miss. 
 
 413, , - - - - 456, 1051 
 
 V. Perrine, 1 Hun, 620, - 389 
 
 V. Price, 20 Wis. 1 17, 33, 545, 
 
 790, 1039 
 
 V. Proctor, 20 Oh. St. 442. 184, 
 
 187, 291, 292, 295 
 V. Bay Circuit Judge, 41 
 
 Mich. 326, .... 
 
 — V. Richardson, 2 Ired. L. 
 250, 
 
 — V. Sims, 2 Hill (S. Ca.), L. 
 
 479, 
 
 — V. Sullivan, 1 Cint, Su- 
 
 perior Ct. Rep. 271, 
 
 — V. Talcott, 54 N. Y. 144 
 
 1119 
 
 • 
 
 347 
 145 
 258 
 
 (affg. 46Barb. 171), - - 880 
 Miller's River Nat'l Bank v. 
 
 Jefferson, 138 Mass. Ill, 843, 884 
 Millerd v. Thorn, 50 N. Y. 403, 534. 
 
 loer 
 
 Millett V. Holt, 60 Me. 169, - 63 
 
 Milliken v. Loring, 37 Me. 408, 687 
 
 V. Milliken, 8 Irish Eq. 16, 249 
 
 Mills, Ex parte, 8 Ch. D. 669, 50
 
 Mil.] 
 
 TABLE OF CASES. 
 
 [Moi. 
 
 Mills, Ro, 11 Baiikr. Reg. 74, - 82S 
 
 V. Barber, 4 Day, 4:28, 401, 408, 
 
 406, 437 
 
 V. Bunce, 29 Mich. 364, - 447, 
 
 1073 
 V. Dickson, G Rich. (S. 
 
 Ca.) L. 4S7, - - - 877, 379 
 V. Fellows, 80 La, Ann. 
 
 (Part II), 824, - - 7G2, 770 
 V. Fovvkes, 5 Binj]:. N. C. 
 
 455, 
 
 — V, Hanson, 8 Ves. 68, 
 
 — V. Kerr, 83 Up. Can. C. P. 
 
 63. 
 
 489 
 971 
 
 450 
 
 Milmine v. Bass, 29 Fed. Rep. 
 
 632, 341 
 
 Milne v. Bartlett, 3 Jur. 353, 581 
 Miluer v. Cooper, 05 Iowa, 180, 729, 
 
 731, 999 
 Milton V. Mosher, 7 Met. 244, 406, 
 
 407, 418 
 Minchiu, Ex parte, 2 Gl. & J. 
 
 287, 835 
 
 Miner v. Downer, 19 Vt. 14, 196, 205 
 
 V, Downer, 20 Vt. 461, 195, 205, 
 
 11 G5 
 
 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) 322, - - 410,1038,1040 
 Miser v. Trovlngcr, 7 Oh. St. 
 
 281, 287, .... 398 
 
 Mitchel V. Read, 61 N. Y. 123 
 
 (19 Am. Rep. 252), (reversing 
 
 61 Barb. 310); s, C. 84 N. Y. 
 
 55G (affirmiug 19 Hun, 518), 
 V. Reynolds, 1 Sm. Lead. 
 
 Cas. 503, - - - . 
 
 Mitchell V. D'Armoud, CO La. 
 
 Ann. Part I. 396, - 
 V. Colman, 2 Jac. & Walk. 
 
 266, 
 
 V, Dall, 2 Ear. & Gill, 159, 152, 
 
 153, 1022 
 
 305 
 676 
 
 453 
 
 988 
 
 Mitchell V. Dobson, 7 Ircd. (N. 
 Ca.) Eq. 34, - - - 530, 881 
 
 V. Gieenwald, 43 Miss. 
 
 167, - - . . 1085, 1103 
 
 V. O'Nealo, 4 Nev. 504, - 3, 13 
 
 V. Read, 19 Hun. 418 (afTd. 
 
 in 84 N. Y. 556), - - 305, 603 
 
 V. Read, 84 N. Y. 556 
 
 (alT'g 19 Hun, 418), - 3a5, 761 
 
 V. Rich, 1 Ala. 228, - 380, 1091 
 
 V. Sell man, 5 Md. 376, 410, 411 
 
 V. Wells, 54 Mich. 127, 875, 881 
 
 V. Williams, 4 Hill, 13, - 389 
 
 Mitchum v. Bank of Ky. 9 
 
 Dana, 106, - - - 612, 618 
 Mittnight v. Smith, 17 N. J. 
 
 Eq. 259. - - 824, 929, 1109 
 
 Mix V. Muzzy, 28 Conn. 186, 319, 
 
 357 
 V. Shattuck, 50 Vt. 421 (28 
 
 Am. Rep. 511), - 453, 704, 705 
 Moale V. Hollius. 11 Gill & J. 
 
 11, - - - 156, 157, 443, 535 
 Mobley v. Lonbat, 7 How. 
 
 (Miss.) 318, .... 1103 
 Moddewell v. Keevcr, 8 Watts 
 
 &S. 63, - - - - 583, 1169 
 JMode V. Penland, 93 N. Ca. 292, 471 
 Modisett v, Lindley, 2 Blackf. 
 
 119, .... 416, 419 
 
 M(;fl"at V. Farquharson, 2 Bro. 
 
 C. C. 333, - - - - 269 
 V. McKissick, 8 Baxter, 
 
 517, - - - 195, 199, 203 
 
 Moflatt V. Thomson, 5 Rich. (S. 
 
 Ca.) Eq. 155 (57 Am. Dec. 
 
 737), - 736, 738, 821, 917, 920 
 Mogford V. Courteuay, 45 L. 
 
 T. 303 ; 29 W. R. 804, - - 666 
 Mohawk Nat. Bank v. Van 
 
 Slyck, 29 Hun, 188, - 26, 443 
 Mohawk & Hudson R, R. v. 
 
 Niles, 3 Hill (N. Y.), 162, 43, 66 
 Moies V. O'Neill, 23 N. J. Eq. 
 
 207, ... - 593, 999 
 
 Moist's Adra'rs' Appeal, 74 Pa. 
 
 St. 106, ... - 384, 680 
 
 CXXVlll
 
 MOL.] 
 
 TABLE OF CASES. 
 
 [Moo. 
 
 Molea V. Orr, 44 Ark. 486, - 1024, 
 
 10:29 
 Moley V. Brine, 120 Mass. 324, 144, 
 
 181, 815 
 Moline Wagon Co. v. Rum- 
 mell, 2 McCrary, 807 ; 12 Fed. 
 Rep. 658 ; 14 id. 155 (reversed 
 by Huiskanip v. Molino 
 Wagon Co. 121 U. S. 210), 105, 
 547, 559, 5C0, 5G1, 607 
 Moline Water Power & Mfg. 
 Co. V. Webster, 2G 111. 233, 825, 
 
 828 
 Moll wo, March & Co. v. The 
 Court of Wards, L. R. 4 P. C. 
 419, .... 23, 47 
 
 Monroe v. Conner, 15 Me. 178 
 (32 Am. Dec. 148), - - 825 
 
 V. Greeuhoe, 54 Mich, 9, 29 
 
 V. Hamilton, 47 Ala. 217, 919 
 
 V. Hamilton, 60 Ala. 226, 577, 
 
 585, 586 
 Montague v, Hayes, 10 Gray, 
 609, ... - 302, 781 
 
 V. Reakert, 6 Bush, 393, - 694 
 
 V. Weil, 30 La. Ann. 50, - 1091 
 
 Montgomery, Re, 3 Bankr. 
 Reg. 429, - - - - 825 
 
 V. Boone, 2 B. Mon. 244, 213, 
 
 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), 275, 
 
 276, 403, 
 
 Montefiori v. Lloyd, 15 C. B. 
 
 N. S. 203. - - - - 
 
 Montross v. Mabie, 30 Fed. 
 
 Rep. 234, - . - - 
 
 Montz V. Morris, 89 Pa. St. 
 
 392, 
 
 Moody V. Downs, 63 N. H. 50, 
 
 V. King, 3 B. & C. 558, 532, 846 
 
 V. Payne, 2 Johns. Ch. 
 
 548, ... - 1109 
 
 Moody V. Rathburn, 7 Minn. 89, 257, 
 
 286, 583, 585 
 V. Thomas, 1 Disney, 294, 664 
 
 655 
 
 265 
 
 1080 
 733 
 
 Mooe V. Story, 8 Dana, 226, 788, 
 
 978, 983,987 
 
 Moor V. Boyd. 15 Up. Can. C. 
 P. 513 (doubted in s. C. 23 
 Up. Can. Q. B. 459), - 416, 419 
 
 Moore's Appeal, 34 Pa. St. 411, 749 
 
 Moore, Ex parte, 2 Gl. & J. 
 
 166, ... - 760,845 
 
 V. Ay res, 5 Sm. «fe Mar. 
 
 310, 194 
 
 V. Bare, 11 Iowa, 198, - 181 
 
 V. Brink, 4 Hun, 403; 6 
 
 N. Y. Supreme Ct. 22, - 72, 750 
 
 V. Burns, 60 Ala. 2G9, - 1018 
 
 V. Curry, 106 Mass. 409, 59, 70 
 
 V. Davis, 11 Ch. D. 261, 17, 26, 
 
 38 
 
 V. Gano, 13 Oh. 300, 395, 901 
 
 V. Huntington, 7 Hun, 425, 43, 
 
 257 
 
 V. Huntington, 17 Wall. 
 
 417, 931 
 
 V. Knott, 12 Oregon, 260, 435, 
 
 544, 586 
 
 V. Knott, 14 Oregon, 35, - 518 
 
 V. Lackman, 53 Mo. 323, - 533, 
 
 526, 537, 694 
 
 V. Otis, 20 Mo. 153, - - 1119 
 
 V. Pennell, 53 Me. 163, - 1105, 
 
 1108 
 
 V, Riddell, 11 Grant's Ch. 
 
 (Up. Can.) 69, ... 490 
 
 V. 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, 
 
 812, 957, 971 
 Moorehead v. Adams (Neb.), 
 26 N. W. Rep. 242, - - 563 
 
 CXXIS
 
 Moo] 
 
 TABLE OF CASES. 
 
 [MoR. 
 
 Moorehead v. Gilmore, 77 Pa. 
 
 St. 118 (18 Am. Rop. 435), - 341, 
 852, 355, 358, 372 
 Mooreraan v. Graffenread, 2 
 
 Mill(.S. Ca.), 195, - - - 11G4 
 Morau v. Le Blanc, 6 La. Ann. 
 
 113, 8()6 
 
 V. Palmer, 13 Mich. 367, - 283, 
 
 292, 299 
 
 V. Prather, 23 Wall. 492, 365 
 
 Morans v. Armstrong, Arms. 
 
 M. & O. Irish N. P. Rep. 25, 315 
 Moraviav.Levy, 2T. R. 483, n., 858 
 More V. Bonnet, 40 Cal. 251, - 676 
 
 V. Rand, 60 N. Y. 208, 595, 897 
 
 Moreau v. SafTarans, 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. 326, 
 
 Morgan v. Adams, 37 Vt. 233, 
 V. Marquis, 9 Exch. 145, 
 
 402 
 995, 
 1005 
 964, 
 967 
 583, 
 610, 755 
 
 -V. Morgan, 68 Ala. 80, - 741 
 
 V. Nunes, 54 Miss. 308, - 874 
 
 V. Olvey, 53 Itid. 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. Y. 490 
 
 (35 Am. Rep. 543). - 008, 671 
 
 V. Scott, Minor (Ala.), 81 
 
 (12 Am. Dec. 35), - - - 422 
 
 V. Skidmore, 55 Barb. 263, 471 
 
 V. Stearns, 41 Vt. 398, - 29 
 
 V. Tar bell, 28 Vt. 498, 499, 501 
 
 Morganstern v. Thrift, 66 Cal. 
 
 577. 274 
 
 Moriarty v. Bailey, 46 Conn. 
 
 .592, .... 1047, 1048 
 
 Morin v. Martin, 25 Mo. 360, - 852 
 Morisou V. Moat, 9 Hare, 241, 258, 
 
 261, 669 
 
 Moritz V. Peebles, 4 E. D. 
 
 Snuth, 135, - - - 793, 889 
 Morley, Ex. parte, L. R. 8 Ch. 
 
 App. 1026, - - - 253, 563 
 
 V. Newman, 5 D. «& R. 317, 231 
 
 Morrell v. Trenton Mut. L. & 
 
 F. Ins. Co. 10 Cush. 282 (57 
 
 Am. Dec. 92), 
 
 457 
 
 179 
 
 88 
 
 44, - 
 
 — V. 
 
 — V. 
 
 V. 
 
 V. 
 
 61, 
 
 V. 
 
 V 
 
 428, 
 
 - V. 
 
 Morrill v. Sanford, 49 Me. 565, 
 
 V. Spurr, 143 Mass. 257, - 
 
 Morris v. Allen, 14 N. J. Eq. 
 
 - 763, 785 
 Barrett, 3 Y. & J. 384, 205 
 Col man, 18 Ves. 437, - 988 
 Harrison, Colles. 157, - 954 
 Hillery, 7 How. (Miss.) 
 
 900, 902 
 Husson, 4 Sandf. 93, - 400 
 Jones, 4 Harr. (Del.) 
 
 . 420, 421 
 Litchfield, 14 111. App. 
 
 64 
 
 V. Marqueze, 74 Ga. 86, - 347, 
 
 507. 510, 514, 515 
 
 V. Morris, 4 Gratt. 293, - 569, 
 
 736, 825, 841, 845 
 
 V. Moss, 25 L. J. C!i. 194, 659 
 
 V. Peckham, 51 Conn. 128, 208, 
 
 572, 1011, 1012 
 Morris Run Coal Co. v. Barclay 
 
 Coal Co. 68 Pa. St. 173. 
 Morrissey v. Schindler, 18 Neb. 
 
 672, 
 
 Morrison's Appeal, 93 Pa. St. 
 
 83, 
 
 112 
 
 1094 
 
 326, 507 
 
 Morrison v. Blodgett, 8 N. H. 
 
 238 (29 Am. Dec. G53), - 510, 515, 
 1105, 1100, nil, 1113 
 
 V. Cole, 30 Mich. 102, - 41, 43 
 
 V. Kramer, 58 Ind. 38, 761, 780 
 
 V. Meudenhall, 18- Minn. 
 
 232, ... - 283, 292 
 
 V. Perry, 11 Hun, 33, 534, 607, 
 
 694 
 
 V. Smith, 81 111. 221, 
 
 V. Stockwf'll, 9 Dana, 172, 
 
 V. Winn , Hardin (Ky.), 480, 
 
 763 
 
 882 
 
 722 
 
 cxxx
 
 MOR.] 
 
 TABLE OF CASES. 
 
 [MUN. 
 
 Morrow v. Riley, 15 Ala. 710, 849, 
 
 8G0 
 
 Morse, Re, 13 Bankr. Reg. 376, 825 
 
 V. Bellows, 7 N. H. 549 
 
 (28 Am. Dec. 372), 381, 415, G81, 
 
 687, 690, 1035 
 
 V. Carpenter, 19 Vt. 613, - 296 
 
 V. Chase, 4 Watts, 456, - 1022 
 
 V. Gleasou, 64 N. Y. 204 
 
 (aff. 2 Huu, 31 ; 4 Thomp. & 
 
 C. 274), - - - - 582, 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, 071 
 
 V. Hutcliins, 102 Mass. 439, 897 
 
 V. Richmond, 97 HI. 303 
 
 (affg. 6 111. App. 160), 26, 204, 299, 
 406, 438, 441, 444, 445 
 V. Richmond, 6 111. App. 
 
 166 (affd. 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, 1024 
 
 Moss V. Jerome, 10 Bosw. 220, 57 
 
 V. McCall, 75 111. 190, - 786 
 
 V. Riddle, 5 Cranch, 351, - 375 
 
 Mossop V. Mason, 18 Grant's 
 
 Ch. (Up. Can.) 453 (affg. 16 
 
 id. 303, and 17 id. 360), 664, 669 
 Mosteller v, Bost, 7 Ired. (N. 
 
 Ca)Eq. 39, - - - 823, 829 
 Motley V. Jones, 3 Ired. Eq. 
 
 144, 44 
 
 Moulston V. Wire, 1 Dow. & L. 
 
 527, 1085 
 
 Mount V. Chapman, 9 Cal. 
 
 394, 858 
 
 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 
 Moyuahan v, Hanaford, 43 
 
 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. 42, 922 
 Mullany v. Keenan, 10 Iowa, 
 
 224, 869 
 
 MuUendore v. Scott, 45 Ind. 
 
 113, .... G36, 879 
 Mumford v, MuiTay, 6 Johns. 
 
 Ch. 1, 766 
 
 V. Nicoll, 4 Johns. Ch. 522 
 
 (rev. in part in 20 Johns. 611), 
 — V. Nicoll, 20 Johns. 611 
 
 917 
 
 (reversing s. C. 4 Johns. Ch. 
 
 522), ... 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. 
 
 1063, 1088 
 
 ox XXI
 
 MUB.] 
 
 TABLE OF CASES. 
 
 [Nal. 
 
 Murchison v. Warren, 50 Tex. 
 27, 542 
 
 Murdock v. Martin, 20 Miss. 
 
 (12Sm. &M.)GG1, - - 8G1 
 
 V. Melilhop, 26 Iowa, 213, 629, 
 
 C30 
 Murpliy V. Abrams, 50 Ala. 
 
 293, .... 294, 300 
 
 ■ V. Camden, 18 Mo. IIG, 352 
 
 V. Crafts, 13 La. Ann. 519, 7G1, 
 
 7G2 
 
 V. Whitlow, 1 Ariz. 340, 1154 
 
 V, Yeonaans, 29 Up. Can. 
 
 C. P. 421, - - - 086,687 
 Murray v. Bogart, 14 Johns. 
 
 318 (7 Am. Dec. 466), - 1G4, 1G5, 
 
 852, 858 
 V. Elston, 24 N. J. Eq. 310 
 
 (affd. id. 589), - - - 958 
 V. Jolmson, 1 Head (Tenn. ), 
 
 353, 780 
 
 V. Mumford, 6 Cow. 441 
 
 (rev. Anthon's N. P. 294), G85, 713, 
 
 715, 722 
 V. Murray, 5 Johns. Cli. 
 
 60, - - - - 753, 754, 1026 
 V. Pinkett, 12 CI. & Fin. 
 
 764 (s. C. as Pinkett v. 
 
 Wright, 2 Hare, 120), - - 187 
 
 V. Somerville, 2 Camp. 99, 439 
 
 V. Stevens, Rich. Eq. Cas. 
 
 (S. Ca.) 205, - - - - 61 
 Murrell v. Murrell, 33 La. Ann. 
 
 1233, ... 13, 384, 792 
 Murrott v. Murphy, 11 Bankr. 
 
 Keg. 131, .... 297 
 Murrill v. Neill, 8 How. (U. S.) 
 
 414, - - 569, 825, 830, 832 
 
 Murtagh v. Costello, 7 Irish L. 
 
 R. 428, 297 
 
 Muse V. Donelson, 2 Humph. 
 
 (Tenn.) IGG (36 Am. Dec. 
 
 309), 704 
 
 Musier v. Trumpbour, 5 Wend, 
 
 274, ... 61, 67, 8G5 
 
 Musselman's Appeal, 63 Pa. St. 
 
 81, .... (3.09, 661 
 
 Musser v. Brink, 68 Mo. 242; 
 
 80 id. 350, - - - 29, 37, 61 
 Mussey v. Holt, 4 Foster (24 N. 
 
 H.), 248 (55 Am. Dec. 234), 299, 
 
 401 
 Musson V. May, 3 Ves. & B. 
 
 194, 637 
 
 Mut. Ben. L. Ins. Co. v. Hill- 
 yard, 87 N. J. L. 444, - - 583 
 Mutual L. Ins. Co. v. Sturges, 
 
 33 N. J. Eq. 328 (rev. 32 id. 
 
 678), 718 
 
 Mutual Nat'l Bank v. Richard- 
 son, 33 La. Ann. 1312, - 363 
 Mut. Sav. Institution V. Enslin, 
 
 37 Mo. 453, - - 690, 713, 731 
 Muzzy v.,Whitney, 10 .Joiins. 
 
 22G, - - - - 41. 43, 47 
 
 Myatts V. Bell, 41 Ala. 223, 349, 526 
 
 095, 704 
 My cock V. Beatson, 13 Ch. D. 
 
 384, - - - 595. 805, 808 
 Myers v. Bennett, 3 Lea 
 
 (Tenn.), 184, - - 810, 978 
 
 V. Edge, 7 T. R. 254, - 649 
 
 V. Gilbert, 18 Ala. 467, - 462 
 
 V. Huggins, 1 Strob. L. 473, C95 
 
 V. Kalamazoo Buggy Co. 
 
 54 Mich. 215, - - 669, 674 
 V. Moulton (Cal.), 12 Pac. 
 
 Rep. 505, .... 404 
 
 V. Smith, 15 Iowa, 181, - 635 
 
 V. Smith, 29 Oh. St. 120, 1103, 
 
 1113 
 
 V. Standart, 11 Oh. St. 29, 696, 
 
 700, 701 
 
 V. Winn, 16 111. 135, 543, 805 
 
 Mygatt V. McCIure, 1 Head 
 
 (Tenn.), 495, - - - 339, 403 
 Mynderse v. Snook, 53 Barb. 
 
 234; 1 Lans. 488, - 1017, 1021 
 
 Myrick v. Dame, 9 Cush. 248, 853, 
 
 1035, 1037 
 
 N. 
 
 Naglee v. Minturn, 8 Cal. 540, 935 
 Nail V. Mclntyre, 31 Ala. 532, 1040 
 
 CX.\X11
 
 Nal.] 
 
 Nalle V. Gates, 20 Tex. 315, • 
 
 Nance v. Pope, 1 Stew. (Ala.) 
 230 (id. 3o4), - - - - 527 
 
 Nanson v. Gordon, 1 App, Gas, 
 
 195 (affJ. 10 Ch. App. IGO), SSP), 
 
 844 
 
 Napier v. Catron, 2 Humph. 
 534, - - - - 293, 416 
 
 V. McLcod, 9 Wend, 130, 181, 
 
 G84 
 
 Napoleon v. State, 3 Tex. App. 
 532, ... - 83, 277 
 
 Nash V. Brophy, 13 Met. 476, 1125 
 
 Nashville & Chat. R. R. v. 
 
 Spraybeny, 9 Heisk. 853, - 63 
 
 Nasou, Ex parte, 70 Me. 363, 453, 
 
 841 
 
 National Bank v. Bank of Com- 
 merce. 94 111. 371, 825, 841, 8S0 
 
 TABLE OF CASES. 
 700 
 
 [New. 
 
 V. Gushing, 53 Vt. 321, 
 
 843 
 
 V. Ingraham, 58 Barb. 290, 34S, 
 
 443 
 
 V. Mapes, 85 111. 67, - - 543 
 
 V. Norton, 1 Hill, 573, 607, 613, 
 
 625, 694, 695 
 V. Sprague, 20 N, J. Eq. 
 
 13 (reversed in part, 31 id. 
 
 530), 138, 281, 535, 585, 566, 568, 
 
 1130 
 
 V, Thomas, 47 N. Y. 15, 439, 
 
 446 
 National Bk. of Bait. v. 
 
 Sackett, 2 Daly, 395, - - 340 
 Natl. Bk. of Commonwealth 
 
 V. Law, 127 Mass. 72, - 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. 127 Mass. 83, 358, 362 
 Nat'l Union Bk. v. Landon, 66 
 
 Barb. 189 (alld. iu part, 45 
 
 N, Y. 410), - - - 323, 361 
 National Bk. of Watertown v. 
 
 Landon, 45 N. Y. 410, - 4, 5, 7 
 
 National Ins. Go, v. Bowman, 
 
 60 JIo. 253, - - - - 1068 
 Nat'l Shoe & Leather Bk. v. 
 
 Hcrz, 89 N. Y. 639, - - 616 
 Natusch V. Irving, 2 Cooper's 
 Ch. temp. Cottenham, 35S, 431. 
 
 435, 938 
 Nave V. Sturges, 5 Mo. App. 
 
 557, - - - 55, 598. 603 
 
 Naylor v. Sidener, 100 Ind. 179, 991, 
 
 998 
 Neale v. Turton, 4 Biug. 149, 8S0, 
 
 883 
 Near v. Lowe, 49 Mich. 483, - 933, 
 
 950 
 Nebraska R. R. Co. v. Colt, 8 
 
 Neb. 251, - - - - 457 
 Neel V. Keel, 4 T. B. Mon. 162, 899 
 Neely v. Morris, 2 Head, 505, 1067 
 Negus, Ex parte, 7 Wend. 499, 638 
 Nehrboss v. Bliss, 88 N. Y. 6U0, 714, 
 
 732, 74a 
 Neil V. Greenleaf, 26 Oh. St. 
 
 567, - - - 850, 893, 956 
 Neilson v. Mossend Iron Co. 
 
 L. R. 11 App. Cas. 293, - 218 
 
 Nelson v. Hayner, 66 111, 487, 744 
 
 V. Healey, 63 Ind. 194, - 453 
 
 V. Plill, 5 How. 137, - - 749 
 
 V. Lloyd, 9 Watts, 22, - 1095, 
 
 1151 
 
 V. Neely, 63 Ind. 194, - 200 
 
 V. Tenuey, 36 Hun, 327, 726, 
 
 733 
 
 V. Wheelock, 46 111. 25, - 406 
 
 Nerot V. Bernand, 4 Russ. 247 ; 
 
 2 Bli. N. S. 215, - - - 794 
 Neudecker v. Kohlberg, 3 
 
 Daly, 407, - - 810, 813, 813 
 Nevius V. Townsend, 6 Conn. 
 
 5, 882, 884 
 
 New V. Wright, 44 Miss. 203, 988. 
 
 993 
 Newberger v. Fields, 23 Mo. 
 
 App. 631, - - - 29, 37, 257 
 Newbigging v. Adam, 34 Ch. 
 
 D. 583, - - - 595, 805, 897 
 
 CXXXUl
 
 New.] 
 
 TABLE OF CASES. 
 
 [NIC. 
 
 Newbrau v. Snider, 1 W. Va. 
 
 153, - - 35, 258, 259, 8J9 
 
 Newcomet v. Brotzman, 69 
 
 Pa. St. 185, - - - - 62:i 
 Newell V. Desmond, 63 Cal. 
 
 243, 517 
 
 V. Humphrey, 37 Vt. 265, 766, 
 
 773, 795, 923 
 
 V. Smith, 23 Ga. 170, 328, 3-14 
 
 V. Towusend, 6 Sim, 419, 720 
 
 Newen v. Wetten, 31 Beav. 
 
 315, - - . . 957,907 
 Newhall v. Buckingham, 14 
 
 111. 405, - 340, 928, 1105, 1100, 1111 
 New Haven Co. Bk. v. Mitcli- 
 
 ell, 15 Conn. 206, 389, 653, C98, 70S 
 Newland v. Champion, I Ves. 
 
 Sr. 105, 925 
 
 V. Tate, 3 lied. Eq. (N. 
 
 Ca.) 221), - 161, 166, 168, 770 
 Newley v. Oregon Co. 1 Dead)^, 
 
 609, 674 
 
 Newling v. Dobell, 38 L. J. Ch. 
 
 Ill; 19L. T. 408, - - - 677 
 Newlou V. Heaton, 42 Iowa, 
 
 593, - - 173, 1059, 1091, 1092 
 
 Newman v. Bagley, 16 Pick. 
 
 570, 569 
 
 V. Bean, 21 N. H. 93, 43, 1106 
 
 V. MuComas, 43 Md. 10, - 703 
 
 V. Morris, 52 Miss. 4U2, 136, 137 
 
 V. Kichardson, 4 Woods, 
 
 C. C. 81 ; 9 Fed. Rep. 808, - 
 — V. Springfield F. & M. Ins. 
 
 347 
 
 Co. 17 Minn. 123, - - - 333 
 Newmarch v. Clay, 14 East, 
 
 239, . - - . 497, 608 
 
 New Maiket Bank v. Locke, 
 
 89Ind. 428, - - - - 825 
 Newsome v. Coles, 3 Camp. 
 
 617, - - - 97, 100, 009 
 Newsoni v. McLendon, Ga. 
 
 27, 848 
 
 Newton v. Doran, 3 Grant's 
 
 Ch. (Up. Can.) 353, 282, 301, 591 
 V. Doran, 1 Grant's Ch. 
 
 (Up. Can.) 590, - - - 591 
 
 N. Y. & Ala. Contracting Co. 
 
 V, Meyer, 51 Ala. 325, - - 899 
 V. Selma Sav. Bk. 51 Ala. 
 
 305 (23 Am. Rep. 552), - - 400 
 N. Y. Dry Dock Co. v. Tread- 
 
 well, 19 Wend. 525, - - 1053 
 N. Y. Firemen's Ins. Co. v. 
 
 Bennett, 5 Conn. 571 (13 Am. 
 
 Dec. 109), - 323, 319, 354, 363 
 New York Iron Mine v. Ne- 
 
 gaunee, 39 Mich. 644, - - 4 
 
 New York & Sliaron Canal Co. 
 
 V. Fulton Bank, 7 Wend. 413, ' 
 
 414, " 183 
 
 Niagara Co. Nat'l Bk. v. Lord, 
 
 33 Hun. 557, - - - - 183 
 Nichels v. Mooring, 10 Fla. 760, 681, 
 
 958 
 Nichol V. Stewart, 80 Ark. 613, 226, 
 
 230, 254, 276, '374, 766, 780, 821, 824, 
 
 917, 927 
 Nicholaus v. Thielges, 50 Wis. 
 
 491, . - - . 43, 1150 
 
 Nicliolls V. Diamond, 9 Exch. 
 
 154, - - - . 349, 441 
 
 V. Dowding, 1 Stark. 81, - 331 
 
 Nichols V. Anguera, 3 Miles 
 
 (Pa.), 290, - ... 535 
 
 V. Cheairs, 4 Sneed, 229, 322, 
 
 323, 523, 524, 525, 537 
 V. English, 3 Brewster 
 
 (Pa.), 260, - - - 446, 448 
 V. Hughes, 2 Bail. (S. Ca.) 
 
 L. 109, 318 
 
 V. James, 130 Mass. 5S9, - 109 
 
 V. Prince, 8 Allen, 404, - 635, 
 
 638, 643 
 
 V. Sober, 38 Mich. 678, 353, 354 
 
 V. White, 85 N. Y. 531, 700, 1151 
 
 Nicholson v. Janeway, 16 N. 
 J. Eq. 285, - - - 309, 958 
 
 V. Moog, 65 Ala. 471, 96, 613, 
 
 618 
 
 V. Ricketts, 3 E. & E. 534, 154, 
 
 489 
 Nicklaus v. Dahn, 63 Ind. 87, 723, 
 
 724, 1170 
 
 ex XXIV
 
 NIC] 
 
 Nicklaus v. Roach, 3 Ind. 78, 
 NicoU V. Muuiford, 4 Johns. 
 
 Ch. 532 ; 20 Johns. Gil, - 823 
 
 Niday v. Harvey, 9 GratL 454, 4'20, 
 
 422 
 Niehoff V. Dudley, 40 111. 406, 23, 47. 
 
 48 
 Nightingale V. Chaffee, 11 R. I. 
 
 6::9 (23 Am. Rep. 531), - - 527 
 
 V. Scaunell, G Cal. 506, - 1027, 
 
 1162 
 Niles V. Williams, 24 Couu. 
 
 27d, ..,.-. 007 
 Niiiis, Re, 16 Blatchf. 439 (re- 
 versing s. c. 18 Baukr. Reg. 
 
 91, 10 Ben. 53), - - - 829 
 V. Bigelow, 44 N. H. 
 
 876, 858 
 
 V. Nims, 20 Fla. 204, - 966 
 
 V. Nims (Fla. 1887', 1 
 
 South. Rep. 527, 812, 917. 936, 968 
 Nisbet V. Nash, 52 Cal. 540, 163, 910 
 
 V. Patton, 4 Rawie, 120 
 
 (26 Am. Dec. 122), - 3S9, 474 
 
 Niven v. Spickerman, 12 
 
 Johns. 401, - 72, 849, 1024, 1028 
 Nixon V. Downey, 42 Iowa. 78, 1087 
 
 V. Nash, 12 Oh. St. 647, - 584, 
 
 928, 1101, 1105, 1109, 1111 
 Noakes v. Barlow, 26 L. T. N. 
 
 S. 36, 
 
 Noble V. McCIintock, 2 Watts 
 
 &S. 152, . - . . 
 
 V. Metcalf, 20 Mo. App. 
 
 TABLE OF CASES. 
 535 
 
 [Not. 
 
 360, 
 
 29 
 347 
 430 
 
 780 
 
 Noel V. Bowman, 2 Litt. (Ky.) 
 46, 
 
 Nolan V. Lovelock, 1 Mon- 
 tana, 224, 323, 325, 334, 431, 432 
 
 Noonan v. McNab, 30 Wis. 
 277, 243 
 
 V. Orton, 31 Wis. 265, 243, 383, 
 
 1027 
 
 V. Orton, 32 Wis. 106, - 1032 
 
 Norcross, Matter of, 1 N. Y. 
 Leg. Obs. 100, - - - 583 
 
 V. Clark, 15 Me. 80, - - 1072 
 
 Norfolk, Ex parte, 19 Ves. 455, 155, 
 
 840 
 Norman v. Conn, 20 Kan. 159, 812 
 
 V. Huddlestou, 64 111. 11, 629 
 
 V, Norman, 2 Yeates 
 
 (Penn.), 154, - - - - 1169 
 Norment v. Hull, 1 Humph. 
 
 320, 
 
 Norris v. Howard, 41 Iowa, 
 
 508, 
 
 V. McCanna, 29 Fed. Rep. 
 
 757, 
 
 — V. Rogers, 107 111. 148, - 
 
 — V. Vernon, 8 Rich. L. 13, 
 
 43 
 
 667 
 
 138 
 796 
 190 
 
 North V. BIoss, 30 N. Y. 374, 150, 
 
 153, 1052 
 
 V. Mudge, 13 Iowa, 593, 377, 
 
 379, 535 
 North Pennsylvania Coal Co.'s 
 
 Appeal, 45 Pa. St. 181, - 438 
 
 North River Bank v. Stewart, 
 4 Bradf. (N. Y.) 254; 4 Abb. 
 Pr. 408, - - - - 825, 832 
 Northern Bank of Ky. v. 
 
 Keizer, 2 Duv. 169, - 827, 834 
 Nurtlieni Ins. Co. v. Potter, 63 
 
 Cal. 157, - - - 386, 387 
 
 Northern R'y Co. v. Patton, 15 
 
 iTp. Can. C. P. 332, - - 43 
 Northup V. McGill, 27 Mich. 
 
 234, - . - . 181, 552 
 
 Northrup v. Phillips, 99 111. 
 
 449, - - 115, 121, 12S, 2G1 
 
 Norton v. Richards, 13 Gray, 
 
 15, 534 
 
 V. Seymour, 3 C. B. 792, 
 
 16 L. J. C. P. 100; 11 Jur. 
 
 312, - - - 200, 453, 1147 
 
 V. Thacher, 8 Neb. 186, 199, 
 
 426, 1068 
 Norway v. Rowe, 19 Ves. 144, 314, 
 
 992, 1002 
 Norwich Yarn Co., In re, 22 
 
 Beav. 113, - - - - 785 
 Nott V. Douming, 6 La. 680, 612, 
 
 694 
 V. Douming, 10 La. 546, - 398 
 
 exxxv
 
 Not.] 
 
 TABLE OF CASES. 
 
 [Ond. 
 
 Nottiflge V. Pi-ichard, 2 CI. & 
 
 F. 379 (all. S Bli. N. R. 493), 383, 
 
 681 
 No well V. Nowell, L. R. 7 Eq. 
 
 538, 813 
 
 Noyes v. Crawley, 10 Ch. D. 
 
 31, 942 
 
 V, Cushman, 25 Vt. 390, 61, 
 
 81, 1151, 1154 
 V. New Haven, etc. R. R. 
 
 30 Conn. 1, - 325,326,381,383 
 
 V. Sawyer, 3 Vt. 160, - 1016 
 
 Nugent V. Locke, 4 Cal. 318, - 70 
 Nunnely v. Doherty, 1 Yerg. 
 
 (Tenn.), 20, - - - 414, 420 
 Nussbauuier v. Becker, 87 111. 
 
 281 (29 Am. Rep. 53), - - 608 
 Nutt V. Hunt, 4 Sm. & Mar. 
 
 (Miss.) 702, - 399, 450, lOol, 1068 
 Nutting V. Aslicral'c, 101 Muss. 
 
 300, ... - 256, 825 
 V. Colt, 7 N. J. Eq. 539, 43, 103 
 
 o. 
 
 Oakey v. Rabb, 1 Freem. (Miss.) 
 
 Ch. 540, ... - 825, 832 
 Oakford v. European and Am. 
 
 Steam Siiipping Co. 1 Hen. 
 
 & Mil. 182, - - - 533, 709 
 Oiikeley v. Pasliollor, 4 Clark 
 
 & Fin. 207; 10 Bligh. N. R. 
 
 548, .... 520, 533 
 
 Oakley v. Aspinwall, 2 Sandf. 
 
 7, 1 332 
 
 Oakraan v. Dorchester Mut. F. 
 
 Ins. Co. 98 Mass. 57, - - 722 
 Ober V. Indianapolis & St. L. 
 
 R. R. 13 Mo. App. 81, - 635, 713 
 O'Brien v. Cook, Irish L. R. 
 
 5 Eq. 51, . . - . 990 
 
 V. Hanley, 80 111. 278, - 978 
 
 O' Bryan v. Gibbons, 2 Md. Ch. 
 
 9, 995, 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, 319, 
 
 424 
 
 V. Woodman, 39 N. H. 541, 850 
 
 O'Donnell v. Battle House Co. 
 
 67 Ala. 90 (42 Am. Rep. 99), 59 
 
 Offutt V. Scott, 47 Ala. 104, 281, 284, 
 
 295, 297, 538, 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, .... 310 
 Ogilby, Ex parte, 3 Ves. & B. 
 
 133; 2 Rose, 177, - - - 845 
 Ogle, Ex parte, Mont. 3'0, - 835 
 O'Gorman v. Fink, 57 "Wis, 649 
 
 (40 Am, Rep, 58), - - - 1131 
 Olcott V, Wing, 4 McLean, 15, 815, 
 
 974 
 Oliphant v, Mathews, 16 Barb, 
 
 60S, 443 
 
 Oliver V. Forrester, 96 111. 315, 707. 
 711, 728, 729, 730 
 
 V. Gray, 4 Ark. 425, 17, 57, 63 
 
 V. Hamilton, 2 Anstx\ 
 
 453, 993 
 
 V. Liverpool & Loudon L. 
 
 & F. Ins. Co. 100 Mass. 531, 170 
 V. Lynn, 130 Mass. 143, - 176 
 
 Olleman v. Reagan, 28 Ind. 
 
 109, - - - 730, 832, 845 
 
 01 instead v. Hill, 2 Ark. 346, - 43 
 
 V, Webster, 8 N. Y, 413, 535, 
 
 530 
 Ohnsted v. Ilotailing, 1 Hill, 
 
 317, 480 
 
 O'Lone v. O'Loue, 2 Grant's 
 
 Ch. (Up. Can.) 125, 245, 779, 788 
 
 917, 918, 987 
 Olsou V. Morrison, 29 Midi, 
 
 395, - - - 551. 636. 637 
 
 O'Mealey v, Wilson, 1 Camp. 
 
 482, 110 
 
 Onderdonk v. Hutchinson, 6 
 
 N. J. Eq. 632 (rev. id. 277), - 767 
 
 CXXXVl
 
 O'Ne.] 
 
 TABLE OF CASES. 
 
 [Pah, 
 
 O'Neil V. Salmon, 25 How, Pr, 
 
 24G, .... 56G, 569 
 O'Neill V. Brown, Gl 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 Cii. (Up. 
 
 Can.) 540, . . . 8G, 134 
 Oppenheinier v. Clemmons, 18 
 
 Fed. Rep. 886, - . - 43, 49 
 Oran v. Rothermel, 98 Pa. St. 
 
 300, 719 
 
 Ord V. Portal, 3 Camp. 239, - 10G7 
 Oregon Steam Nav. Co. v. 
 
 Winsor, 20 Wall. 04, . . 676 
 O'Reilly v. Brady, 28 Ala. 530, 769, 
 
 773, 970 
 Ormsbee v. Davis, 5 R. I. 443, 3oS, 
 
 339, 991, 996 
 Orr V. How, 55 Mo. 328, - - 29G 
 Orrick v, Valiey, 49 Ux 428. - 733 
 Osborn v. McBride, 3 Sawy. 
 
 590; 16 Bankr. Reg. 22, 189, 1109 
 
 V. Osborn, 36 Mich. 48, - 141, 
 
 884, 504, 510, 511 
 Osborne v. Bai'ge, 29 Fed. Rep. 
 
 725, - - 339. 403, 405, 406 
 V. Brennan, 2 Nott & McC. 
 
 427; (10 Am. Dec. 614), . 1149 
 
 V. Haiper, 5 East, 225, 895, 896 
 
 V. Stone, 30 Minn. 25, - 349, 
 
 362, 369 
 ■ V. Thompson, 35 Minn. 
 
 229, 349 
 
 Osbrej v, Reimer, 51 N. Y. 630 
 
 (affg. 49 Barb. 265), 29, 43, 47, 922 
 Osburn v. Farr, 43 Mich. 134, - 148 
 Odmeut V, McElrath, 68 Cal. 
 
 466, . - - 771, 773, 791 
 
 Ostrom V. Jacobs, 9 Met. (Mass.) 
 
 454, - 199, 439, 448, 700, 1153 
 
 Otis V. Adams, 41 Me. 258, - 393, 
 
 10S3 
 Ovens V. Bull, 1 Ont. App. 63, 1106 
 
 Over V. Hetherington, 06 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, . . . 263, 263 
 
 , Ex parte, 13 Q. B. D. 113, 754, 
 
 102o 
 V, Van Uster. 20 L. J. C. 
 
 P. Gl; IOC. B. 318, . 349,441 
 Owens V. Davis, 15 La. Ann. 
 
 22, 70 
 
 V. Mackall, 33 Md. 383, - 53, 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. 
 
 18S, 1171 
 
 Packing Provision Co. v. Cas- 
 ing Co. 34 Kan. 340, - - 1085 
 Page V. Brant, 18 111. 37, 625, 1049, 
 
 1050, 1053 
 
 V. Carpenter, 10 N. H. 77, 453, 
 
 453a, 547. 1106 
 
 V. Cox, 10 Hare, 163, 51. 219, 
 
 249, C03 
 
 V. Morse, 128 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, .... 2i)0 
 Pahlman v. Graves, 2G 111. 405, 825. 
 
 832 
 cxxxvii
 
 Pah.] 
 
 TABLE OF CASES. 
 
 [Par. 
 
 Pahlman v. Taylor, 75 III. G29, 319. 
 
 341, 364, 370, 452, 4o3 
 
 Paine v. Dwiuel, 53 Me. 52, - 439 
 
 V. Moore, G Ala. 129, - 8G8 
 
 V. Paine, 15 Graj', 299. - 9G8 
 
 V. Tliacber, 25 Wend. 450, 770, 
 
 775. 854, 885 
 Painter v. Painter, 68 Cal. 395, 630. 
 
 735 
 Palmer v, Bagg, 56 N. Y. 523, 655 
 
 V. Dodg(>, 4 Oh. St. 21 (62 
 
 Am. Dec. 271), - 618, 693, 695 
 
 V. Elliot, 1 Cliff. 63. - 445 
 
 V. Mitchell, 2 Myl. & K. 
 
 672, - . . . 4S5, 605 
 
 V. Meyers. 43 Barb. 509 ; 
 
 29 How. Pr. 8, - - 338, 340 
 
 — V. Pinkliam, 37 Me. 252, - 91 
 
 V. Purdy. 83 N. Y. 144, - 534 
 
 V. Sawyer, 114 Mass. 1, - 709 
 
 V. Scott, 68 Ala. 380, 328, 341, 
 
 483, 1073 
 
 V. Stephens, 1 Den. 471, 193, 
 
 199, 203, 444 
 
 V. Tyler, 15 Minn. 106, 86, 822. 
 
 932 
 Pannell v. Phillips, 55 Ga. 618, 441 
 Paradise v. Gersou, 32 La. Ann. 
 
 532, 365 
 
 Parch en v. Anderson, 5 Mon- 
 tana, 438, - - - 23, 47, 64 
 Pardee v. Haynes, 10 Wend. 
 
 681, .... 3-0, 1086 
 Pardridge v. Ryan, 14 111. App. 
 
 598. 1135 
 
 Parham Sewing Mach. Co. v. 
 
 Block, 113 Mass. 194, 526, 655, 694 
 Pariente v. Lubbock, 8 De G. 
 
 M. & G. 5, - - - - 651 
 Paris, etc. Rond Co. v. Weeks, 
 
 11 Up. Can. Q.B. 56, - - 67 
 Parish v. Lewis, 1 Freem. 
 
 (Miss.) Ch. 299, - 559. 560, 824 
 Parker, Ex parte, 2 M. D. & D. 
 
 511, - - - 503,511,516 
 , Succession of, 17 La. 
 
 Ann. 28, - - 942 
 
 Parker v. Bowles, 57 N. H. 491. 282, 
 
 295, 301 
 
 V. Burgess, 5 R. I. 277, 352, 355 
 
 V. Canfield, 37 Conn. 250 
 
 (9 Am. Rep. 317), 30, 47, 49, 156, 
 
 157, 607 
 
 V. Cousins, 2 Gratt. 372 
 
 (44 Am. Dec. 388), - 526, 695 
 
 V. Danforth, 16 Mass. 299, 1025, 
 
 108G, 1127, 1128 
 
 V. Fergus, 43 111. 437, 43, 45, 
 
 46, 99 
 {'. Gossage, 2 Cr. M. & R. 
 
 617, 
 
 — V. Hills, 5 Jur. N. S. 609 ; 
 
 238 
 
 7 id. 833, .... 203 
 
 — V. Jackson, 16 Barb. 33, 349, 
 
 750, 1094 
 
 — V. Jonte, 15 La, Ann. 290, 978 
 
 — V. Maconiber, 18 Pick. 
 
 505, - - - 090, 091, 095 
 
 V. Merrill, 6 Me. 41, 
 
 V. Merritt, 105 111. 293, - 
 
 V. Morrell, 2 Ph. 453, 
 
 V. Muggeridge, 2 Story, 
 
 701 
 554 
 331 
 
 334, 337, .... 754 
 
 — V. Pistor, 3 B. & P. 2i-8. - 1109 
 
 — V. Ramsbottom, 3 B. & C. 
 
 257; 5 Dow. & Ry. 138, 560. 846 
 
 G08 
 
 1103 
 
 643, 
 
 055 
 
 Parkhurst v. Kinsman, 1 
 
 Blatchf. 488. - - - 69, 585 
 
 V. Muir, 7 N. J. Eq. 307, - 996 
 
 V. Muir, 7 N. J. Eq. 555, - 957 
 
 V. Wooten, 35 Ala. 242, - 
 
 V. Wright, 66 Me. 392, - 
 
 Parkes v. Parker, 57 Mich. 56, 
 
 902 
 
 551 
 
 1100 
 
 Parkinson v. Hanburj', L. R. 3 
 
 IL L. 1, .... 
 
 Parks V. Comstock, 59 Barb. 16, 
 
 V. Mosher, 71 Me. 304, - 
 
 Parmalee v. Wiggenhorn, 5 
 
 Neb. 322, - 503, 507, 510, 511 
 Parnu'lce v. Lawrence, 44 111. 
 
 405, 386 
 
 Paruell v. Robinson, 58 Ga. 26, 228, 
 
 306 
 cxxxviii
 
 Par.] 
 
 TABLE OF CASES. 
 
 [Pea. 
 
 Parr, Ex parte, 1 Rose, 76, - 843 
 Parry v. Hencierson, 6 Blackf. 
 
 72, 1074 
 
 Parsliall v. Fisher, 43 Mich. 
 
 529, - - - 101, 138, 1158 
 
 Parsons v. Hayward, 31 Beav. 
 
 199 (affd. in 4 DeG. F. & J. 
 
 474), - - - 216, 575, 794 
 V. Hayward, 4 DeG. F. & 
 
 J. 474, 575 
 
 V. Tilhnan, 95 lud. 453, - 884 
 
 Partridge v. Wells, 30 N. J. Eq. 
 
 176, - - - 544, 790, 947 
 Patch V. Wheatland, 8 Allen, 
 
 103, - 200, 401, 40G, 407, 453 
 
 Pate V. Bacon, 6 Munf. (Va.) 
 
 219, .... 1049, 1065 
 
 Paterson v. Maughan, 39 Up. 
 
 Can. Q. B. 371, - - - 403 
 
 V. Zachariah, 1 Stark, 71, 694 
 
 Paton V. Baker, 63 Iowa, 704, 283 
 
 V. Wright, 15 How. Pr. 
 
 481, 338 
 
 Patridge v. Kingman, 130 
 
 Mass. 476, - - - 43, 104 
 Pattee v. Gilmore, 18 N. H. 
 
 460 (45 Am. Dec. 385), - - 701 
 Patten v. Cunningham, 03 Tex. 
 
 666, 1086 
 
 V. Gurney, 17 Mass. 183, 1034 
 
 V. Kavanagh, 1 1 Daly, 348, 418 
 
 V. Whitehead, 13 Rich. L. 
 
 156, 1072 
 
 Patterson's Appeal (Supreme 
 Ct. Pa. 1883), 13 Weekly 
 Notes, 154, - - - 112, 128 
 Patterson v. Blake, 13 Ind. 436, 976 
 
 V. Brewster, 4 Edw. Ch. 
 
 352, . - - - 151, 205 
 
 V. Chalmers, 7 B. Mon. 
 
 595, . - - - 
 
 V. Lilly, 90 N. Ca. 83, 
 
 V. Martin, 6 Ired. L. Ill, 
 
 V. Seaton, 70 Iowa, 689, - 
 
 V. Silliman, 28 Pa. St. 304, 
 
 70, 724 
 
 949, 950 
 
 629. 
 
 630 
 
 566 
 
 241, 
 
 243 
 
 Patterson v. Trumbull, 40 Ga. 
 
 104, 
 
 V. Ware, 10 Ala. 444, 
 
 - 1113 
 800, 910 
 
 Pattison v. Blanchard, 6 Barb. 
 
 537, 
 
 V. Blanchard, 5 N. Y. 186, 
 
 Patton V. Calhoun, 4 Gratt. 
 138, - - - 
 
 849 
 66 
 
 772 
 
 886 
 
 Paul V. Edwards, 1 Mo. 30, ■ 
 Pawsey v, Armstrong, 18 Ch. 
 
 D. 698, - - - - 28, 060 
 Payne v. Freer, 91 N. Y. 43 
 
 (43 Am. Rep. 640; aff'g 25 
 
 Hun, 124), - - - 784, 851 
 V. Gardiner, 29 N. Y. 146 
 
 (aff. S. C. as Payne v. Slate, 
 
 39 Barb. 634), - - - 693 
 
 V. Hornby, 25 Beav. 280, - 553 
 
 V. James, 36 La. Ann. 476, 457 
 
 V. Matthews, 6 Paige, 19, 845 
 
 V. O'Shea, 84 Mo. 129, - 1079 
 
 V. Slate, 39 Barb. 634 (affd. 
 
 as Payne v. Gardiner, 29 N. 
 
 Y. 146), - - - 693, 703, 704 
 V. Tliompson, 44 Oh. St. 
 
 193, 139 
 
 Peabody v. County Conim'rs, 
 
 10 Gray, 97, - - - - 175 
 Peace, Re, 13 Bankr. Reg. 168, 833 
 Peacey v. Peacey, 27 Ala. 683. 337, 
 
 338, 636, 879 
 Peacock, Ex parte, 2 Gl. & J. 
 
 27, 842 
 
 V. Cummings, 46 Pa. St. 
 
 434 (5 Phi la. 253), - 
 
 — V. Peacock, 2 Camp. 45, 
 
 — V. Peacock, 16 Ves. 49, 
 
 — V. Stott, 90 N. Ca. 518, 
 
 433 
 
 181. 
 
 257 
 
 679, 
 
 1003 
 
 1170 
 
 560 
 
 833 
 
 Pearce v. Chamberlain, 3 Ves. 
 
 Sr. 33, - - - - 158, 581 
 
 V. Cooke, 13 R. L 184, 747, 750, 
 
 826 
 V. Ham, 113 TJ. S. 585, 573, 796 
 
 Peake, Ex parte, 1 Mad. 340, 
 , Ex parte, 3 Rose, 54, 
 
 CXXXIX
 
 Pea.] 
 
 TABLE OF CASES. 
 
 [Peo. 
 
 Pearce v. Hewitt, 31 Beav, 22, 805 
 
 V. Lindsay, 3 De G. J. & 
 
 Sm. 139, - ... 575 
 
 V. Madison & Indianapolis 
 
 R. R. 21 How. 441, - - 133 
 
 V. Pearce, 77 111. 284, 259, 788, 
 
 813, 983, 983 
 
 V. Sliorter, 50 Ala. 318, - 456, 
 
 1103, 1119 
 
 V. Wilkins, 2 N. Y. 4G9, - 3i6, 
 
 38G 
 Pearl v. Harris, 121 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. IGO), 742, 746, 929 
 
 V. Pearson, 27 Ch. D. 145, 661, 
 
 G6G 
 
 V. Post, 2 Dakota, 220, - 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. 22, 808, 809 
 
 V. Hirst, 10 B. & C. 122; 
 
 5 M. & R. 88, - 651, 1016, 1017 
 V, McClelland, 2 Bond, 42, 393 
 
 V. Morgan, 7 Johns. 4G8, 1068 
 
 V. Rush, 2 Minn. 107, - 1017 
 
 Peck V. Boggcss, 2 111. 281, - 960 
 V. Fisher, 7 Cush. 386, - 1102, 
 
 1107, 1114, 1115 
 
 V. Parch en, 52 Iowa, 46, - 1056 
 
 V. Schultze, 1 Holmes, C. 
 
 C. 28, - - - - 1107, 1109 
 V. Wakely, 1 McCord, Ch. 
 
 43, 881 
 
 Pecker v. Hall, 14 Allen, 532, 612 
 Peckham lion Co. v. Harper, 
 
 41 Oh. St. 100, - - 468, 474 
 Pecks V. Baruum, 24 Vt. 75, - 173, 
 
 1127, 1128 
 
 Pecot V. Armelin, 21 La. Ann. 
 
 C67, .... 287, 303 
 
 Peel V. Bryson, 72 Ga. 331, - 1085 
 
 V. Ringgold, 6 Ark. 546. - 1026 
 
 Peele, Ex parte, 6 Ves. Jr. C03, 503, 
 
 511, 512, 1016 
 Pegg V. Plank, 3 Up. Can. C. P. 
 
 396, 1079 
 
 Peine v. Weber, 47 111. 41, 292, 416, 
 
 417 
 Peirce v. Tobey, 5 Met. 168, - 704 
 Peirse v. Bowles, 1 Stark. 323, 406 
 Peltz V. Eichele, 62 Mo. 171, - 676 
 Pelzer V. Campbell, 15 S. Ca. 
 
 581, .... 420, 431 
 Pemberton v. Oakes, 4 Russ. 
 
 154, - - 499, 649, 650, 656 
 Pence v. McPhersou, 30 Ind. 
 
 68, 
 
 Pendleton v. Phelps, 4 Day, 
 
 481, 
 
 V. Wambersie, 4 Cranch, 
 
 183 
 747 
 927 
 895 
 
 73, 
 
 Penguet v. McKenzie, 6 Up 
 
 Can. C. P. ; 08, - - • 
 Pcnn V. Kearny, 21 La. Ann. 
 
 21, 446 
 
 V. Stone, 10 Ala. 209, - 869 
 
 V, Whitehead, 17 Gratt. 
 
 503, .... 136, 142 
 
 Penniraan v. Munson, 26 Vt. 
 
 164. 69 
 
 Pennington v. Bell, 4 Sneed 
 
 (Tenn.), 200, - - - 5C9, 825 
 Pennoyer v. David, 8 Mich. 
 
 407, 701 
 
 Pennsylvania Ins. Co. v. 
 
 Murphj', 5 Minn. 36, - - 409 
 Penny v. Black, 9 Bosw. 310, 264 
 V. Martin, 4 Johns. Ch. 
 
 5G6, 535 
 
 Pennybacker v. Leary, Ql Iowa, 
 
 220, - 290, 302, 823, 974, 975 
 
 Pennyman v. Jones, 58 N. H. 
 
 G47. ----- 932 
 
 People V. Judges of Duchess, 5 
 
 Cow. 34, 414 
 
 0x1
 
 Peo.] 
 
 TABLE OF CASES. 
 
 [Pfe, 
 
 People V. Lott, 36 III. 447, - 740 
 
 V. White, 11 111. S41, 715, 740. 
 
 741, 743, 1000 
 People's Bank v. Shryock, 48 
 Md. 427 (30 Am. Dec. 470), - 1103, 
 
 1111 
 Pepper v. Labrot, 8 Fed. Rep. 
 
 29. 674 
 
 Percifull v. Piatt, 36 Ark. 456, 293, 
 
 296 
 Perens v. Johnson, 3 Sra. & G. 
 
 419, ... - 311, 788 
 
 Perkins v. Iloyt, 35 Mich. 506, 336 
 
 V. Perkins, 3 Gratt. 364, 86 
 
 V. Walker, 16 Vt. 240, - 1121 
 
 V. Young, 16 Gray, 389, 880, 
 
 8S1 
 Perlberg v. Gorham, 10 Cal. 
 
 120, . - . . S83, 415 
 Perley v. Brown, 13 N. H. 
 
 493, ... .849 
 
 Perrin v. Kerne, 19 Me. 355 (36 
 
 Am. Dec. 159), - - 526, 695 
 Perrine v. Hankinson,!! N. J. 
 
 L. 181, 45 
 
 Perring v. Hone, 4 Bing. 28 (3 
 
 C. & P. 401), 72, 74, 346, 851, 878, 
 
 900 
 Perrott v. Bryant, 2 Young & 
 
 C. Ex. 61, - - - - 59 
 Perry v. Butt, 14 Ga. 699, 33, 981 
 
 V. Hale, 143 Mass. 540, 595, 897 
 
 V. Holloway, 6 La. Ann. 
 
 265, 180 
 
 V. Randolph, 6 Sm. & Mar. 
 
 335, - 323, 323, 459, 1150, 1163 
 
 V. Spencer, 23 Mich. 89, - 642 
 
 Person v. Carter, 3 Murph. 
 
 (N. Ca.)321, .... 416 
 
 V. Wilson, 25 Minn. 189, 262 
 
 Fsrsonette v. Pry me, 34 N. J. 
 
 Eq. 26, - - - - 301, 907 
 Persse & Brooks Paper Works 
 
 V. Willett, 1 Robt. 131; 19 
 
 Abb. Pr. 410, - - - 560 
 
 Perzell v. Shook, 53 N. Y. Su- 
 perior Ct. 501, - - - 250 
 
 Peteetv. Crawford. 51 Miss. 43, 959 
 Peters v. Anderson, 5 Taunt. 
 
 596, 489 
 
 V. Davis. 7 Mass. 257, - 722 
 
 V. McWiliiams, 78 Va. 
 
 567, .... 507, 570, 763 
 
 V. Sanford, 1 Den. 224, - 535 
 
 Peterson v. Roach, 32 Oh. St. 
 
 374 (30 Am. Rep. G07), 446, 450, 
 
 451 
 V. Humphrey, 4 Abb. Pr. 
 
 391, .... 609, 673 
 V. State, 33 Tex. 477, - 488 
 
 Petit V. Chevelier, 13 N. J. Eq. 
 
 181, 991 
 
 Petrie v. Han way, 3 T. R. 418, 112, 
 
 127 
 V. Lament, 1 Car. & M. 
 
 93, 467 
 
 V. Newell, 13 111. 647, - 10G8 
 
 Pettee v. Appletou, 114 Mass. 
 
 114, - - . . 33, 47 
 V. Orser, 6 Bosw. 123; 18 
 
 How. Pr. 413, - ■ 338. 340, 403 
 
 Pettes V. Spalding. 21 Vt. 00, 1125 
 Pettingill v. Jones, 28 Kan. 
 
 749, SG5 
 
 Pettis V. Atkins, GO 111. 451, 72, 74, 
 
 1049, 1050 
 V. Bloomer, 21 How. Pr. 
 
 317, .... 416, 419 
 
 Petty V. Hannum, 2 Humph. 
 
 103, 395 
 
 Pettyt V. Janesou, 6 Madd. 
 
 146, 245 
 
 Petzer v. Campbell, 15 S. Ca. 
 
 581, 423 
 
 Peyton v. Lewis, 12 B. Mon. 
 
 356, - - - 533, 634, 635 
 
 V. Stratton, 7 Gratt. 380, 384, 
 
 693 
 Pfau V. Lorain, 1 Cinti. Supe- 
 rior Ct. 73, - - - - 1071 
 Pf effer v. Steiner, 27 Mich. 537, 719, 
 
 Pfeifer v. Chamberlain, 53 
 Miss. 89, - - - - 1135 
 cxU
 
 Pfe.] 
 
 TABLE OF CASES. 
 
 [Pie. 
 
 Pfoiffer V. Maltby, 38 Tex. 523 
 
 (see Pfeuffer v. Maltby, 54 id. 
 
 454), 127 
 
 Pfeuffer v. Mallby, 54 Tex. 454, 114, 
 
 127 
 Pfirrman v. Koch, 1 Cincinnati 
 
 Superior Ct. Rep. 4G0, 559, 560 
 
 Pfister V. Wade, C9 Cal. 133, - 1007 
 Pliaup V. Stratton, 9 Gratt. 
 
 G15, 1073 
 
 Pliclan V. Hutchison, Phil. 
 
 (N. Ca.)Eq. 11(5, - - 7G4, 765 
 Phelps, Re, 17 Bankr. Reg. 144, 640 
 V. Brewer, 9 Cush. 390 (57 
 
 Am Dec. 56), - 1088, 1089, 1090 
 
 . V. Lyle, 10 A. & E. 113, 1017 
 
 V. McNeely, 06 Mo. 554 (37 
 
 Am. Rep. 378), - - 563, 563 
 Phelps Mfg. Co. V. Eng. 19 
 
 Conn. 58, ... - 
 Philippi V. Philippi, 61 Ala. 41, 
 Philips V. Crammond, 3 Wash. 
 
 C. C. 441, ... - 
 
 V. Henry. 2 Head, 133. - 
 
 V. Pliilips, 8 Hare. 381, - 
 
 V. Samuel, 76 Mo. 657, - 
 
 V. Turner, 2 Dev. & Bat. 
 
 Eq. 133, - 770, 968, 978, 979 
 
 Pliillips V. Ames, 5 Allen, 183, 562, 
 
 566 
 
 V. Blatchford, 137 Mass. 
 
 510, 51, 52, 73, 187, 003, 853, 905, 
 
 910 
 
 V. Clagett, 11 M. & W. 84, 383 
 
 V. Cook, 24 Wend. 389, - 1101, 
 
 1105. 1109, 1111, 1112 
 
 V. Jones, 20 Mo. 67, - 549 
 
 V. Lockliart, 1 Ala. 251, - 852 
 
 V. Nash, 47 Ga. 218, - 86, 152, 
 
 156, 157, 333, 459, 597, 608 
 
 V. Penny wit, 1 Ark. 59, - 70, 
 
 148, 1023, 1033 
 
 V. Phillips, 1 Myl. & K. 
 
 649, 285 
 
 V. Phillips, 49 111. 437, - 3 
 
 V. Purington, 15 Me. 425, 70, 
 
 ior)9 
 
 952 
 
 544 
 
 1168 
 
 726 
 
 55 
 
 330, 331, 1143 
 
 Phillips V. Reeder, 18 N. J. Eq. 
 
 95, - - 305, 596, 6S9, 797 
 V. Reeder, 18 N. J. Eq. 614, 085 
 
 V. Trezevant, 67 N. Ca. 
 
 370, 994 
 
 Philson V. Bampfield, 1 Brev. 
 
 (S. Ca.)303, - - - - 538 
 Fhipps V. Sedgwick, 95 U. S. 3, 564 
 Phoanixins. Co. v. Moog(Ala.), 
 
 1 South. Rep. 108, - 725, 1029 
 
 Piano Co. v. Bernard, 2 Lea, 
 
 358, 503, 507, 508, 510, 511, 513, 
 
 544. 978, 979 
 Piatt V. Oliver, 8 McLean, 37 
 
 (affd. 3 How. 333), 113, 241, 293, 
 
 £01, 303 
 Pickels V. McPherson, 59 Miss. 
 
 216, - - - 317, 383, 416 
 
 Pickett V. Cloud, 1 Bailey (S. 
 
 Ca.), 363, - - - - 1166 
 Pico V. Cuj-as, 47 Cal. 174, 209, 855 
 Pier V. Duff, 63 Pa. St. 59, - 547 
 Pierce v. Alspaugh, 83 N. Ca. 
 
 258. .... 507, 508 
 V. Camei'on, 7 Rich. (S. 
 
 Ca.) L. 114, - - 420, 421, 524 
 
 V. Covert, 39 Wis. 253, - 976 
 
 V. Daniels, 25 Vt. 624, 300, 311, 
 
 761, 770, 773 
 
 V. Fuller, 8 Mass. 223, - 678 
 
 V. Jackson, 21 Cal. 636, - 303 
 
 V. Jackson, 6 Mass. 243, 475, 
 
 1112, 1114, 1115 
 
 V. Jarnagin, 57 Mass. 107, 318, 
 
 320, 322, 401 
 
 V. Kearney, 5 Plill, 83, 537, 1168 
 
 V. Kingsbury, 03 Mo. 259, 1106 
 
 V. McClellan, 93 111. 245, 942, 
 
 945 
 
 - 1151 
 
 — V. McCoimell, 7 Blackf 
 170, ... - 
 
 — V. Nashua F. Ins. Co. 50 
 
 N. H. 297 (9 Am. Rep. 235), 272, 273 
 
 — V. Pass, 1 Porter (Ala.), 232, 4l0 
 
 — V. Plumb, 74 111. 320, - 636 
 
 — V. Scott, 37 Ark. 308, 313, 770, 
 
 9o2 
 
 cxlii
 
 Pie.] 
 
 TABLE OF CASES, 
 
 [Plo 
 
 Pierce v. Shippee, 90 III. 
 
 371, 28 
 
 V. Thompson, 6 Pick. 193, 894, 
 
 S9S 
 V. Tiernan, 10 Gill & J. 
 
 853, - - - . 821,917 
 V. Trigg, 10 Leigh (Va.), 
 
 406, - - 281, 293, 294, 974 
 
 V.Whitley, 39 Ala. 172, 1136 
 
 V. Wood,*3 Foster (23 N. 
 
 H.), 519, - - - 465, 701 
 
 Piercy v. Fynney, L. R. 12 Eq. 
 
 C9, - - - 383, 425, 1039 
 
 Pierson v. Hooker, 3 Johns. 68 
 
 (3 Am. Dec. 467), - - 382, 415 
 V. Steinmyer, 4 Rich. L. 
 
 309, . . - - 16, 47 
 
 Pigott V. Bagley, McCl. & Y. 
 
 569, - - - - 51, 249 
 
 Pike V. Bacou, 21 Me. 280 (38 
 
 Am. Dec. 259), - - 410, 419 
 
 V. Bateman, 1 Iowa, 309, 72 
 
 V. Douglass, 28 Ark. 59, - 78 
 
 V. Hart, 30 La. Ann. Part 
 
 II, 868, 848 
 
 Pilcher, Succession of, 1 South. 
 
 Rep. 929, - - - - 172 
 Pillans V. Harkness (H. of L. 
 
 1713), Collos, 442, - - 595,805 
 Pilliug V. Pilling, 3 De G. J. & 
 
 Sm. 162, - - 211, 263, 783 
 Pillabury v. Pillsbury, 20 N. H. 
 
 90, 876 
 
 Pirn V. Harris, Irish Rep. 10 
 
 Eq. 412, 782 
 
 Pinckney v, Keyler, 4 E. D. - 
 
 Smith, 469, - - - 45, 375 
 
 V. Wallace, 1 Abb. Pr. 82, 722, 
 
 731 
 Pine V. Ormsbee, 2 Abb. Pr. (N. 
 
 S.)375, - - - - 571,794 
 Pingree v. Coffin, 12 Gray, 288, 
 
 314, 711 
 
 Pinkerton, Ex parte, 6 Ves. 
 
 814, n., 834 
 
 V. Ross, 33 Up. Can. Q. B. 
 
 508, . - - 82, 129, 327 
 
 Pinkett v. Wright, 2 Hare, 120 
 
 (S. C. as Murray v. Pinkett, 
 
 12 CI. & Fin. 764), - - 187 
 
 Piukney v. Hall, Ld. Raym. 
 
 175 ; 1 Salk. 126, - - - 841 
 Pinschower v. Hanks, 18 Nev. 
 
 99, 1052, 1053 
 
 Piper V. Smith, 1 Head, 93, 297, 770, 
 
 772 
 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, 622, 
 
 882, 884, 904 
 Pitkin V. Pitkin, 7 Conn. 307 
 
 (18 Am. Dec. Ill), 55, 580, 598, 
 
 599, 600 
 
 V. Roby, 43 N. H. 138, - 1029 
 
 Pitt V. Cholmondeley, 2 Ves. 
 
 Sr. 565, 964 
 
 Pittman v. Planters' Bk. 1 
 
 How. (Miss.) 527, - - - 1085 
 V. Robicheau, 14 La. Ann. 
 
 108, 1113 
 
 Pitts V. Brewster, 4 Edw. Ch. 
 
 322, - ■- - - - 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, 1022 
 V. Piatt, 61 Barb. 52; 11 
 
 Abb. Pr. (N. S.) 110, - - 715 
 Pleasants v. Meng, 1 Dall. 380, 338, 
 
 583 
 Plews V. Baker, L. R. 16 Eq. 
 
 564, 571, - - - - 233 
 
 Ploss V. Thomas, 6 Mo. App. 
 
 157, . - . . 139, 140 
 
 Plowden, Ex parte, 2 Dea. 456 ; 
 
 3 Mont. & A. 402, - - 760 
 
 Plowman v. Riddle, 7 Ala. 
 
 775, 1071 
 
 K 
 
 cxliii
 
 Plu.] 
 
 TABLE OF CASES, 
 
 [POS. 
 
 Plumer v. Gregory, L. R. 18 
 
 Eq. 621, - - 371, 474, 477 
 
 V. Lord, 5 Allen, 460, 136, 139 
 
 V. Lord, 7 Allen, 481, 33, 139 
 
 Plummer, Re, 1 Ph. 56, - - 842 
 
 V. Trost, 81 Mo. 425, 61, 140 
 
 Plunkett V. Dillon, 4 Del. Ch. 
 
 198, 47,49 
 
 Poclielu V. Kemper, 14 La. 
 
 Ann. 308, . - - - 4 
 
 Pogson V. Owen, 3 Desaus. 31, 1027 
 Poillon V. Secor, 61 N. Y. 456, 92, 93, 
 
 445 
 Poindexter v. Waddy, 6 Munf. 
 
 (Va.) 418 (8 Am. Dec. 749), 347, 
 
 507 
 Pointon v. Pointon, L, R. 12 
 
 Eq. 547, ... - 925 
 
 Polk V. Buchanan, 5 Sneed 
 
 (Tenn.), 721, - - - 23, 43, 47 
 
 V. Oliver, 56 Miss. 566, 97, 618 
 
 Pollard V. Brady, 48 N. Y. 
 
 Superior Ct. 476, - - - 198 
 
 V. Stanton, 5 Ala. 451, 453, 852 
 
 V. Stanton, 7 Ala. 761, - 17, 56 
 
 Pollock V. Glazier, 20 Ind. 262, 1068, 
 
 1094 
 
 V. McClurken, 42 111. 370, 1164 
 
 V. Williams, 42 Miss. 88, 323, 
 
 446, 523 
 Pollexfen v. Sibson, 16 Q. B. D. 
 
 792, - - - - 1059, 1062 
 
 Pomeroy v. Benton, 57 Mo. 
 
 531 (14 Am. Law Reg. N. S. 
 
 306), - - 309, 790, 958, 901 
 
 V. Benton, 77 Mo. 64, 309, 789, 
 
 961, 983 
 
 V. Coons, 20 Mo. 597, - 615 
 
 V. Sigerson, 22 Mo. 177, - 00 
 
 Pond V. Clark, 24 Conn. 370, - 182, 
 
 963, 978, 979 
 
 V. Cummins, 50 Conn. 372, 43 
 
 V. Kimball, 101 Mass. 105, 1131 
 
 Pool V. Delaney, 11 Mo. 570, - 850 
 
 V. Perdue, 44 Ga. 454, - 8G0 
 
 Poole V. Fisher, 62 111. 181, - 91, 94 
 V. Gist, 4 McCord, L. 259, 709 
 
 Poole V. Hintrager, 60 Iowa, 
 
 180, - - - 504, 510, 1094 
 
 V. Lewis, 75 N. Ca. 417, 445, 451 
 
 V. Seney, 66 Iowa, 502, - 561 
 
 Pooley V. Driver, 5 Ch. D. 458, 1,17, 
 18, 35, 49, 50, 173 
 V. Whitmore, 10 Heisk. 
 
 (Tenn.) 629 (27 Am. Rep. 
 
 733), - - 329, 343, 349, 304 
 Pope V. Bateman, 1 Iowa, 309, 1028 
 V. Cole, 55 N. Y. 124 (14 
 
 Am. Rep. 198), - - 747, 750 
 
 V. Hays, 19 Tex, 375, 639, 640 
 
 V. Nance, 1 Stew, (Ala.) 
 
 354 ; id. 220, - - - - 527 
 
 V. Randolph, 13 Ala. 214, 858 
 
 V. Risley, 23 Mo. 185, 621, 700 
 
 • V, Salsman, 35 Mo. 362, - 939 
 
 Popper V, Scheider, 7 Abb. Pr, 
 
 (N. S.) 56 ; 38 How. Pr. 34, - 1003 
 Porche v. Le Blanc, 12 La. 
 
 Ann, 778, . - - - 1103 
 
 Porter v. Graves. 101 U. S. 171, 1154 
 
 Port Darlington Harbor Co. v. 
 
 Squair, 18 Up. Can. Q. B 
 
 533, ... - 523, 524 
 
 Porter v. Curry, 50 111. 319, 367, 429 
 
 V. Ewing, 24 111, 617, - 43 
 
 V, Gorman, 65 Ga. 11, - 664 
 
 V. Gunnison, 2 Grant's 
 
 Cas. (Pa.) 297, - - 347, 363 
 
 V. McClure, 15 Wend. 187, 64 
 
 V. Parmley, 52 N. Y. 185, 179 
 
 V. Taylor, 6 Moo. & S, 156, 381, 
 
 684 
 V, Vance, 14 Lea, 627, - 468 
 
 V. Wheeler, 37 Vt. 281, 766, 
 
 899 
 
 V, White, 39 Md. 613, 329, 361, 
 
 364 
 Porthouse v. Parker, 1 Camp. 
 
 83, 397, 399 
 
 Portland Bank v, Gershom, 11 
 
 Me, 196, - - 882,884,900 
 
 Portsmouth v. Donaldson, 32 
 
 Pa, St. 202, - 274, 275, 455, 973 
 Posey V. Bullitt, 1 Blackf. 99, 414 
 
 cxliv
 
 Pos.] 
 
 Post V. Kimbeily, 9 Johns. 470, 71 
 Postlewait v. Howes, 3 Iowa, 
 
 365, 749 
 
 Pote V. Phillips, 5 Cranch, C. 
 
 C. 154, 858 
 
 Pott V. EytoD, 3 C. B. 32, 43, 91, 95 
 Potter V. Dillon, 7 Mo. 323 (37 
 
 Am. Dec. 185), - - - 847 
 
 V. Greene, 9 Gray, 309, - 96 
 
 V. Jackson, 13 Ch. D. 845, 987 
 
 V. Moses, 1 R. I. 430, 43, 334, 
 
 572, 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. 425, - - - - 849 
 V. Graves, 9 La. Ann. 435, 880 
 
 V. Hopson, 13 La. Ann. 
 
 626, 598 
 
 V. Maguire, 43 Cal. 11, 78, 113, 
 
 870 
 
 V. Messer, 18 Tex. 401, 361,362, 
 
 1046 
 
 V. North, 3 Ind. 392 (56 
 
 Am. Dec. 513), - - 604, 727 
 
 V. Robinson, 58 Ga. 26, - 795 
 
 V. Waters, 8 Cow. 659, - 393 
 
 TABLE OF CASES. [Pri. 
 
 Pratt V. Willard, 6 McLean, 
 
 Power V. Kirk, 1 Pittsburg 
 
 Rep. 510, - - - 585, 688 
 Powers V. Dickie, 49 Ala. 81, 970, 982 
 
 V. Fletcher, 84 Ind. 154, 504 
 
 V. Guardian Ins. Co. 136 
 
 Mass. 108 (49 Am. Rep. 20), 273, 
 
 278 
 Powrie v. Fletcher, 2 Bay (S. 
 
 Ca.), 146, - - - - 1079 
 Pratt V. Langdon, 97 Mass. 97 ; 
 
 12 Allen, 546, - - - 40, 91 
 V. McHatton, 11 La. Ann. 
 
 260, 76 1, 766, 775, 782, 789, 930, 974, 
 
 986 
 V. Ogdensburg & Lake 
 
 Champlain R. R 103 Mass. 
 557, . ... 66, 134 
 
 — V. Page, 33 Vt. 18, 608, 609, 626 
 
 37, 1067 
 
 Pray v. Mitchell, 60 Me. 430, - 856 
 Prentice v. Elliott, 72 Ga. 154, 785, 
 
 786, 949 
 Prentiss v. Brennan, 1 Grant's 
 
 Ch. (Up. Can.) 484, - 545, 790 
 
 V. Foster, 28 Vt. 743, - 695 
 
 V. Sinclair, 5 Vt. 149 (20 
 
 Am. Dec. 288), - - 618, 621 
 President v. Cornen, 37 N. Y. 
 
 320, 625 
 
 Pressley v. Harrison, 102 Ind. 
 
 14, 995 
 
 Preston v. Colby, 117 111. 477, 835, 
 
 b47 
 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. 92, .... 942 
 Price's Estate, 81 Pa. St. 263, - 987 
 Price, Re, 6 Bankr. Reg. 400, - 1131 
 V. Alexander, 3 G. Greene 
 
 (Iowa), 437 (52 Am. Dec. 526), 43, 
 45, 416, 418, 419 
 
 V. Barker, 4 E. & B. 760, 385, 
 
 386 
 
 V. Gavins, 50 Ind. 122, - 845 
 
 V. Drew, 18 Fla. 670, 849, 851, 
 
 852, 858, 865 
 
 V. Groom, 2 Ex, 542, - 53, 88 
 
 V. Hicks, 14 Fla. 565, 281, 885, 
 
 290, 393, 736 
 
 V. Hunt, 59 Mo. 258, 410,1141, 
 
 1145 
 
 V. Mulford, 36 Hun, 347, 483 
 
 V. Towsey, 3 Litt. (Ky.) 
 
 433, 612 
 
 Priest V. Chouteau, 13 Mo. 
 
 App. 353 (affd. 85 Mo. 398), - 26, 
 
 261, 291, 1147 
 V. Chouteau, 85 Mo. 398 
 
 (aff. 12 Mo. App. 252), 26, 261, 290, 
 
 391, 832, 1147 
 
 cxlv
 
 Pri.] 
 
 TABLE OF CASES. 
 
 [Rad. 
 
 Prince v. Crawford, 50 Miss. 
 
 344, 318, 322, 329, 343, 345, 371 
 
 Princeton & Kingston Turn- 
 pike Co. V. Gulick, 16 N. J. 
 
 L. IGl, - 13, 350, 365, 009, 615, 624 
 Pringle v. Leverich, 16 Jones 
 
 & Sp. 90, 94, - - - - 92 
 V. Leverich, 97 N. Y. 181 
 
 (49 Am. Rep. 522), - - 700 
 
 Priutup V. Turner, 05 Ga. 71, - 296, 
 
 1086, 1093 
 Pritt V. Clay, 6 Beav. 503, - 959 
 Prize Cases, 2 Black, 635, 114, 582 
 Prosser v.' Hartley, 35 Minn. 
 
 340, 1131 
 
 Proudfoot V. Bush, 7 Grant's 
 
 Ch. (Up. Can.) 518, - - 229 
 Prouty V. Swift, 51 N. Y. 
 
 594, .... 36, 43 
 
 Providence v, Bullock, 14 R. L 
 
 353, 285 
 
 Prudhonime v. Henry, 5 La. 
 
 Ann. 700, - - - - 695 
 Puckett V. Stokes, 2 Baxter 
 
 (Tenn.), 442, - - - 439, 443 
 Pugh V. Currie, 5 Ala. 446, 285, 293, 
 
 294 
 Pullen V. Whitfield, 55 Ga. 174, 747, 
 
 750 
 Punnett, Ex parte, 16 Ch. D. 
 
 226, 659 
 
 Purdy V. Powers, 6 Pa. St. 
 
 442, ... - 1038, 1046 
 Purinton v. Ins. Co. 72 Me. 22, 333 
 Pursley v. Ramsey, 31 Ga. 403, 191 
 
 193, 322, 618 
 Purviance v. Dryden, 3 S. & R. 
 
 402, 1162 
 
 V. Edwards, 17 Fla. 140, - 1087 
 
 V. McClintee, 6 S. & R. 
 
 259, 44 
 
 v. Sutherland, 2 Oh. St. 
 
 478, 348, 416, 418, 420, 422, 423 
 
 Purvines v. Champion, 67 111. 
 
 459, - - - 858, 866, 892 
 rurvis, Re, 1 Bankr. Rog. 163, 382 
 Puschel v. Hoover, 16 111. 340, 1050 
 
 Put man v. Fife Lake Twp. 45 
 
 Mich. 125, - - - 176, 177 
 Putnam v. Dobbins, 38 111. 394, 283 
 
 v. Parker, 55 Me. 235, 733, 734 
 
 V. Ross, 55 Mo. 116, 456 1051 
 
 V. Wise, 1 Hill, 234, - 61 
 
 Pyke V. Searcy, 4 Porter (Ala.), 
 52, 742 
 
 Q. 
 
 Quackenbush v. Sawyer, 54 
 
 Cal. 439, - - - 31, 45, 63 
 
 Quagle v. Guild, 91 III. 378, - 942 
 Queen v. Mallinson, 16 Q. B. 
 
 367, - . - . 277, 898 
 v. Robson, 16 Q. B. D. 
 
 137, 75 
 
 Quillen v. Arnold, 12 Nev. 234, 722, 
 
 724 
 Quincy v. Young, 5 Daly, 327 
 
 (rev. in part, 63 N. Y. 370), - 1149 
 Quine v. Quine, 9 Sm. & Mar. . 
 
 155, 
 
 IJ 
 
 Quinlan v. Keiser, 66 Mo. 603, 959 
 Quinlivan v. English, 42 Mo. 
 
 362, 921 
 
 V. English, 44 Mo. 46 
 
 (limiting 42 id. 362), - 993, 999 
 Quinn v. Fuller, 7 Cush. 224, - 393, 
 
 1044 
 
 R. 
 
 Raba v. Ryland, Gow, N. P. 
 
 133, 258 
 
 Rabby v. O'Grady, 33 Ala. 255, . 1144 
 Rabe v. Wells, 3 Cal. 148, - 617 
 Rackstraw v. Imber, Hc>lt, N. 
 
 P. 368, 858 
 
 Radcliff V. Woods, 25 Barb. 52, 1131, 
 
 1133 
 Radcliffe v. Varner, 55 Ga. 427, 323, 
 
 1084 
 Radenhurst v. Bates, 8 Bing. 
 
 463, 890 
 
 cxlvi
 
 Eai.] 
 
 TABLE OF CASES. 
 
 [Rea. 
 
 Raiguel's Appeal, 80 Pa. St. 234 
 
 (as Wentworth v. Raiguel, 9 
 
 Phila. 275), - . 43, 455, 548, 931 
 Railroad Co. v. Bixby, 55 Vt. 
 
 235, .... 133, 1111 
 
 V. Sprayberry, 8 Bax. 341, 66 
 
 Eainey v. Nance, 54 111. 29, 1109, 
 
 1111 
 Ralph V. Lockwood, 61 Cal. 
 
 155, 129 
 
 Ralston v. Moore, 105 Ind. 243, 749 
 Raraey v. McBiide, 4 Strob. (S. 
 
 Ca.) L. 12, - - - - 411 
 Rammelsberg v, Mitchell, 29 
 
 Oh. St. 22, 244, 296, 297, 298, 598, 
 599, 661, 665, 743 
 Rarasbottoni v. Lewis, 1 Camp. 
 
 179, .... 349, 695 
 Ramsey v. Barbaro, 12 Sm. & 
 
 Mar. (20 Miss.) 661, - - 894 
 Randall v. Baker, 20 N. H. 
 
 335, 407 
 
 V. Hunter, 66 Cal. 513, - 347 
 
 V. Johnson, 13 R. L 338, 1105, 
 
 1108, 1111 
 V. Morrell, 17 N. J. Eq. 
 
 343, 995 
 
 Randegger v. Holmes, L. R. 1 
 
 C. P. 679, - - • - - 233 
 Randel v. Yates, 48 Miss. 685, 1137 
 Randle v. Richardson, 53 Miss. 
 
 176, 181, 764, 765, 770, 795, 812, 
 
 982, 985 
 
 V. State, 49 Ala. 14, 
 
 43 
 
 Randolph, In re, 1 Ontario 
 App. 315, - - - - 23 
 
 V. Daly, 16 N. J. Eq. 313, 569, 
 
 1130 
 
 V. Govan, 14 Sm. & Mar. 
 
 9, 1135 
 
 V. Peck, 1 Hun. 138, - 698 
 
 Randolph Bk. v, Armstrong, 
 
 11 Iowa, 515, - - - 401 
 
 Rank v. Grote, 50 N. Y. Supe- 
 rior Ct. 275, - - - 281, 297 
 
 Rankin v. Harley, 12 New 
 Brunswick, 371, - - - 1158 
 
 Rankin v. Jones, 2 Jones (N. 
 
 Ca.), Eq. 169, - - - 551, 560 
 
 V. Shephardson, 89 111. 445, 646 
 
 Ransom v. Loyless, 49 Ga. 471, 612 
 V. Van Deventer, 41 Barb. 
 
 307, - - - 561, 562, 564 
 Rapier v. Gulf City Paper Co. 
 
 64 Ala. 330, .... 286 
 Rapp V. Latham, 2 B. & Aid. 
 
 795, - - - 331, 473, 479 
 
 V. Vogel, 45 Mo. 534, - 1149 
 
 Ratlibone v. Drakeford, 4 
 
 Moo. & P. 57, - - - 380 
 Rathwell v. Rathwell, 26 Up. 
 
 Can. Q. B. 179, - - 718, 741 
 Ratzer v. Ratzer, 28 N. J. Eq. 
 
 136, 1136 
 
 Rau V. Boyle, 5 Bush, 253, - 819 
 Ravenscraft v. Pratt, 22 Kan. 
 
 20, 926 
 
 Rawlins v. Wickham, 3 De G. 
 
 & J. 304 (S. C. below, 1 Giflf. 
 
 355), 595 
 
 Rawlinson v. Clark, 15 M. & 
 
 W. 292, 43 
 
 V. Moss, 7 Jur. N. S. 1053, 710 
 
 Rawson v. Pratt, 91 Ind. 9, 657, 659 
 V. Taylor, 30 Oh. St. 389 
 
 (27 Am. Rep. 464), - - 534 
 
 Ray V. Bogart, 2 Johns. Ch. 
 
 433, 953 
 
 V. Powers, 134 Mass. 23, - 75 
 
 Rayburn v. Day, 27 111. 46, - 526 
 Raymond, Sir Charles' Case, 
 
 cited in 2 Rose, 252, 255, - 167 
 
 v.'Bigelow, 11 N. H. 466, 643 
 
 — ;- V. Came, 45 N. H. 201, - 930 
 — ^ V. Putnam, 44 N. H. 160 
 
 (S. C. as Raymond v. Came, 
 
 45 id. 201), - 150, 255, 813, 813, 
 
 817, 930 
 V. Vaughan, 17 III. App. 
 
 144, 
 
 581 
 
 Read v. Bailey, L. R. 3 App. 
 Cas. 94 (aff. S. C sub. nom. 
 Lacey v. HiU, Ch. D. 537), 836, 
 
 839 
 
 cxlvii
 
 Re A.] 
 
 TABLE OF CASES. 
 
 [Rel 
 
 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. v. Johnson, 7 
 
 W. & S. 317, ... 386 
 
 Rebel- v. Columbus Mach. Mfg. 
 
 Co. 12 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, 21 New 
 
 Brunswick, 277. - - - 378 
 Reddington v. Lanahan, 59 
 
 Md. 429, - - - 17, 43 
 
 Rediieffer v. Leather, 15 Mo. 
 
 App. 12, ... - 710 
 
 Redlon v. Churchill, 73 Me. 
 
 146 (40 Am. Rep. 345; 14 
 
 Centr. L. J. 412), - 349, 355, 358 
 Redmayne v. Forster, L. R. 2 
 
 Eq. 467, - - 163, 185, 927 
 
 Redmond v. Stausbury, 24 
 
 Mich. 445, - - - - 10G7 
 Reece v. Hoyt, 4 Ind. 169, 276, 577. 
 
 585, 750 
 Reed V. Girty, 6 Bosw. 567, 420, 537 
 V. Hanover Branch R. R. 
 
 105 Mass. 303. - - - 1018 
 v. Hussey, Blatchf. & H. 
 
 Adm. 525, - - - - 59 
 
 V. King, 23 Iowa, 500, 644, 951 
 
 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 (52 Am. Dec. 
 
 520), 43,45 
 
 V. Shepardson, 2 Vt. 120 
 
 (19 Am. Dec. 697), 1101, 1105, 1107 
 
 V. Vidal, 5 Rich. (S. Ca) 
 
 Eq. 289, 1012 
 
 Reed v. White, 5 Esp. 122, 533, 528 
 V. Whitney, 7 Gray, 533, 1081 
 
 Reeder v. Sayre, 70 N. Y. 180, 
 
 190, 724 
 
 Reese v. Bradford, 13 Ala. 837, 551, 
 
 560, 824, 929 
 
 V. Kindred, 17 Nev. 447, 722, 
 
 724 
 
 V. Kinkead, 18 Nev. 126, - 550, 
 
 1067 
 
 Reeve, Ex parte, 9 Ves. 583. - 436, 
 
 835, 836, 843, 845 
 
 Reeves v. Ayers, 38 111. 418, - 187, 
 
 291, 295 
 V. Denicke, 12 Abb. Pr. 
 
 N. S. 92, - - - - 
 
 — V. Goff, 3 N. J. L. 194, 454, 
 
 609, 
 
 Reevs v. Hardy, 7 Mo. 348, 
 Reg. V. Warburton, L. R. 1 Cr. 
 
 Cas. 274; 11 Cox, C. C. 584, 
 Regester v. Dodge, 19 Blatchf. 
 
 79; 6 Fed. Rep. 6; 61 How. 
 
 Pr. 107, 
 
 Regina v. Evans, 9 Jur. N. S. 
 
 184, 
 
 V. McDonald, 7 Jur. N. S. 
 
 1127; 31 L. J. M. C. 67, 
 V. McNaney, 5 Up. Can. 
 
 670 
 
 70 
 439 
 
 277 
 
 519 
 
 277 
 43 
 
 P. C. 438, - - - - 421 
 Rehill V. McTague (Pa.), 7 Atl. 
 
 Rep. 224, - - 955, 959, 961 
 Reid, Ex parte, 2 Rose, 84, 155, 840, 
 
 846 
 V. Eatanton Mfg. Co. 40 
 
 Ga. 98, 8 
 
 V. Godwin, 43 Ga. 527, 188, 884 
 
 V. Hollinshead, 4 B. & C. 
 
 867 ; 7 Dow. & Ry. 444, - 60, 65, 
 
 258, 406 
 
 V. McLeod, 20 Ala. 576, - 1125 
 
 V. McQuesten, 61 N. H. 
 
 421, ... - 780, 868 
 Reilly v. Reilly, 14 Mo. App. 
 
 62, 167, 169 
 
 V. Smith, 16 La. Ann. 31, 612, 
 
 017 
 
 cxlviii
 
 Rei J 
 
 TABLE OF CASES. 
 
 [Ria 
 
 Reilly v. Walsh, 11 Irish Eq. 
 
 OQ - - . . - - 
 
 313 
 
 Eeirasdyk v. Kane, 1 Gall. 
 
 630, - - - 204, 441, 705 
 
 Eeinheimer v. Hemingway, 35 
 
 Pa. St. 432, - - - - 1111 
 Reis V. Hellman, 25 Oh. St. 
 
 180, - - 158, 761, 870, 871 
 Reiter v. Morton, 96 Fa. St. 
 
 229, - - - 210, 591, 873 
 Remick v. Emig, 42 111. 342, - 181, 
 
 727 
 Remington v. Allen, 109 Mass. 
 
 47, 275 
 
 V. Cunimings, 5 Wis. 138, 377, 
 
 380 
 Rencher v, Anderson, 95 N. 
 
 Ca. 208, .... 944 
 
 Rend v. Boord, 75 Ind. 307, - 348 
 Renfrew v. Pearce, 68 111. 125, 545, 
 
 790 
 Renfro v, Adams, 62 Ala. 302, 389 
 Renny's Patent Button-Hole- 
 
 ing Co. V. Somervell, 38 L. 
 
 T. N. S. 878; 26 W. R. 786, - 669 
 Reno V. Crane, 2 Blackf. 217, 266 
 Rensselaer Glass Factory v. 
 
 Reid, 5 Cow. 587, 785, 786, 788 
 
 Renton v. Chaplain, 9 N. J. 
 
 Eq. 62, 311, 583, 584, 585, 754, 756, 
 
 993, 999, 1111 
 Reppert v. Colvin, 48 Pa. St. 
 
 248, 703 
 
 Reubin v. Cohen, 48 Cal. 545, 367 
 Revis V. Lamme, 2 Mo. [207] 
 
 168, 1049 
 
 Rex V. Dodd, 9 East, 516, 73, 457 
 
 V. Hodgson, 12 Price, 537, 831 
 
 V. Manning, Comyn, 616, 468 
 
 V. Rock. 2 Price, 198, - 831 
 
 V. Sanderson, Wightwick, 
 
 50, 831 
 
 Reynell v. Lewis, 15 M. & W. 
 
 517; 1 Sim. N. S. 178, - 79, 89, 99 
 Reynold v. Bullock, 47 L. J. 
 
 Ch. 773; 39 L, T. N. S. 443; 
 
 26 W. R. 678, - - 661, 665 
 
 Reynolds v. Austin, 4 Del. Ch. 
 
 24, 581, 1003 
 
 V. Bowley, L. R. 2 Q. B. 
 
 474, ... - 155, 840 
 ■ V. Cleveland, 4 Cow. 282 
 
 (15 Am. Dec. 369), - - 445 
 
 V. Hicks, 19 Ind. 113, 164, 168 
 
 V. Mardis, 17 Ala. 32, - 781 
 
 V. Patrick, 52 Mich. 590, - 634 
 
 V. Pool, 84 N. Ca. 37 (37 
 
 Am. Rep. 607), - - - 61 
 
 V. Ruckman, 35 Mich. 80, 286, 
 
 295 
 
 V, Toppan, 15 Mass. 370, - 45 
 
 V. Waller, 1 Wash. (Va.) 
 
 164, 472 
 
 Rhea v. Tathem, 1 Jones (N. 
 
 Ca.), Eq. 290, - - 312, 589 
 
 — — V. Vannoy, 1 Jones, Eq. 
 
 (N. Ca.) 282, - - - - 589 
 Rheam v. Smith, 2 Ph. 726, - 934 
 Rhett V. Poe, 2 How. 457, - 399 
 Rhiner v. Sweet, 2 Lans. 386, 455, 
 
 888, 973 
 Rhodes v. Amsinck, 38 Md. 
 
 345, - - - 377, 379, 935 
 
 V. McKean, 55 Iowa, 547, 365, 
 
 647 
 
 V. Williams, 12 Nev. 20, 290, 
 
 544, 566, 933, 970, 977 
 Rhoton's Succession, 34 La. 
 
 Atm. 893, - ... 544 
 Rianhard v. Hovey, 13 Oh. 300, 73 
 Riarl v. Wilhelm, 3 Gill (Md.), 
 
 356, - - - 856, 858, 863 
 Rice, Appellant, 7 Allen, 112, 746, 
 
 749, 750 
 
 , Re, 9 Bankr. Reg. 373, - 832 
 
 V. Austin, 17 Mass. 197, 33, 47, 
 
 59, 257 
 V. Barnard, 20 Vt. 479 (50 
 
 Am. Dec. 54), - - 13, 824 
 
 V. Barrett, 116 Mass. 312, 109 
 
 V. Barry, 2 Cranch, C. C. 
 
 447, 365 
 
 V. Culver, 32 N. J. Eq. 
 
 601, 897 
 
 cxlix
 
 Ric] 
 
 TABLE OF CASES. 
 
 [Rig. 
 
 Rice V. Doniphan, 4 B. Mon. 
 
 123, 1085 
 
 V. McMartin, 30 Conn. 
 
 573, - - - 387, 680, 685 
 
 V. Richards, Busb, (N. 
 
 Ca.) Eq. 277, - - - 716, 722 
 
 V. Shute, 5 Burr. 2611, - 454, 
 
 457 
 
 V. Wolflf, 65 Wis. 1, - - 515 
 
 V. Woods, 21 Pick. 30, 883, 385 
 
 Rich T. Davis, 4 Cal. 22, - 352, 353 
 
 V. Davis, 6 Cal. 141, - - 352 
 
 V. Davis, 6 Cal. 1G3, - 150, 154 
 
 V. Flanders, 39 N. H. 304, 701, 
 
 1140 
 
 V. Husson, 4 Sandf. 115, - 1168 
 
 V. Roberts, 48 Me. 548 ; 50 
 
 id. 395, 179 
 
 Richards v. Baurman, 65 N. 
 
 Ca. 162, - - - 572, 577, 998 
 
 V. Burden, 59 Iowa, 723, - 795 
 
 V. Butler, 65 Ga. 593, - 628 
 
 V. Davies, 2 Russ. & M. 
 
 347, .... 910, 913 
 
 V. Fisher, 2 Allen, 527, - 383, 
 
 635, 884 
 V. Grinnell, 63 Iowa, 44 
 
 (50 Am. Rep. 727), 32, 302, 815, 
 
 949, 951 
 
 V. Haines, 30 Iowa, 574, - 1106, 
 
 1113 
 V. Heather, 1 B. & Aid. 
 
 29, - - - - 714,724,746 
 
 V. Hunt, 65 Ga. 342, - 628 
 
 V. Hunter, 2 B. & B. 302, 724 
 
 V. Manson, 101 Mass. 482, 285, 
 
 560, 584 
 
 V. Todd, 127 Mass. 167, 595, 775, 
 
 780, 805, 897 
 Richardson, Ex parte, 3 Madd. 
 
 138, 600 
 
 , Re, 5 L. J. Ch. 129, - 906 
 
 , Re, 11 Bankr. Reg. 114, - 1131 
 
 V. Adler, 46 Ark. 43, - 1131 
 
 V. Bank of England, 4 
 
 Myl. & Cr. 1G.5, - 851, 883, 971 
 V. Coddington, 49 Mich. 1, 496 
 
 Richardson v. Dickinson, 6 
 
 Foster (26 N. H.), 217, - - 169 
 
 V. Farmer, 36 Mo. 35, 156, 445 
 
 V. French, 4 Met. 577, 341, 483 
 
 V. Fuller, 2 Oreg. 179, - 377 
 
 V. Hastings, 7 Beav. 323, 914 
 
 V. Huggins, 23 N. H. 106, 200, 
 
 453 
 V. Hughitt, 76 N. Y. 55 (32 
 
 Am. Rep. 267), - - 23, 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. 128, - 5 
 
 V. Smith, 21 Fla. 336, - 1049 
 
 V. Snider, 72 Ind. 425 (37 
 
 Am. Rep. 1G8), - - - 625 
 
 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, - - 362 
 Richmond v. Heapy, 1 Stark. 
 
 202, .... 1035, 1038 
 
 V. Judy, 6 Mo. App. 465, 75 
 
 Richter v. Poppenhausen, 42 
 
 N. Y. 373 (9 Abb. Pr. N. S. 
 
 263; 39 How. Pr. 82), 52, 53, 747, 
 
 750 
 Rick V. Neitzy, 1 Mackey (D. 
 
 C), 21, 909 
 
 Ricker v. American Loan & 
 
 Trust Co. 140 Mass. 346, - 72 
 Ricketts v. Bennett, 4 C. B. 686, 320 
 Rickey v. Bowne, 18 Johns. 
 
 131, 899 
 
 Ridenour v. Mayo, 40 Oh. St. 
 
 9, 6, 1158 
 
 Ridgen v. Pierce, 6 Mad. 353, 974 
 Ridgway v. Clare, 19 Beav. 
 
 Ill, 828 
 
 V. Grant, 17 111. 117, - 890 
 
 Rieser, Re, 19 Hun, 202, - 836, 837 
 Ridden v. Pierce. 6 Madd. 
 
 244 
 
 353, 
 
 cl
 
 Eia.] 
 
 TABLE OF CASES. 
 
 [Rob. 
 
 Riggs V. Hawley, 116 Mass. 
 596, 958 
 
 Riley v. Noyes, 45 Vt. 455, - 469 
 
 Rimel v. Hayes, 83 Mo. 200, 91, 98, 
 
 109, 317, 1151 
 
 Riper v. Poppenhausen, 43 N. 
 Y, 68 (see Richtei- v, Poppen- 
 hausen), ... - 750 
 
 Ripley v. Colby, 28 N. H. 438, 1142 
 
 V. Kingsbury, 1 Day, 150, 
 
 n. a, 439 
 
 V. People's Savings Bank, 
 
 18 lU. App. 430. - - - 1103 
 
 V. Thompson, 12 Moore, 
 
 55, 1168 
 
 Rippey v. Evans, 22 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 
 
 V. Elliot, 1 N. H. 184, - 1125 
 
 Rizer v. James, 26 Kan. 221, - 04, 
 
 1155 
 Roach V. Brannon, 57 Miss. 
 
 490, 726, 728, 731, 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 
 
 Roakes v. Bailey, 55 Vt. 542, - 612 
 Robb v. Bailey, 13 La. Ann. 
 
 457, 1067 
 
 V. Mudge, 14 Gray, 534, - 503, 
 
 551, 691, 833 
 V. Stevens, Clarke, Ch. (N. 
 
 Y.) 191, - - - 552, 560, 824 
 Robbins v. Fuller, 24 N. Y. 
 
 570, - - 681, 686, 687, 689 
 
 V. Laswell, 27 111. 365, 35, 56, 
 
 216, 257, 972 
 V. Willard, 6 Pick. 464, - 1151 
 
 Roberts' Appeal, 93 Pa. St. 
 
 407, - 317, 321, 329, 363, 424 
 Roberts v. Adams, 8 Porter 
 
 (Ala.), 297 (33 Am. Dec. 291), 691 
 
 V. Atwood, 8 B. Mon. 209, 1073 
 
 V. Barrow, 53 Ga. 314, - 367 
 
 V. Cuffin, 2 Atk. 112. - 960 
 
 V. Fitler, 13 Pa. St. 265, - 850 
 
 V. Gr is wold, 35 Vt. 498, - 650, 
 
 655 
 
 V. Johnson, 58 N. Y. 613, 471 
 
 V. Kelsey, 38 Mich. 602, - 580, 
 
 738 
 V. Law, 4 Sandf. (N. Y.) 
 
 642, '738 
 
 V. McCarty, 9 Ind. 16, 282, 290, 
 
 823 
 
 — V. McKee, 29 Ga. 161, - 990 
 
 — V. Oldham, 63 N. Ca. 297, 848, . 
 
 1114 
 
 — V. Pepple, 55 Mich. 367, - 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, 3 Daly, 110, 339 
 
 — V. Spencer, 123 Mass. 397, 617, 
 
 621 
 
 — V. Strang, 38 Ala. 566, 385, 534 
 
 V. Totten, 13 Ark. 609, 761, 764, 
 
 961. 964 
 
 V. Yarboro, 41 Tex. 449, 1170 
 
 Robertshaw v. Hanway, 52 
 
 Miss. 713, - 290, 719, 746, 1131 
 Robertson v. Baker, 11 Fla. 
 
 193, - - 281, 551, 559, 561 
 
 V. Corsett, 39 Mich. 777, 173, 
 
 282 
 
 V. Findley, 31 Mo. 384. - 634 
 
 V. Gibb, 38 Mich. 165, 970, 983 
 
 V. Jones, 20 New Bruns- 
 wick, 267, - - - - 446 
 
 V, Lockie, 15 Sim. 285; 10 
 
 Jur. 533, - - - 574, 581 
 
 V. Mcllhenny, 59 Tex. 615, 1029 
 
 V. Miller, 1 Brock. 428, - 217 
 
 cli
 
 Rob.] 
 
 TABLE OF CASES. 
 
 [Roa. 
 
 Robertson v. Mills, 3 Harr. & 
 
 Gill, 93, 1163 
 
 V. Quiddington, 28 Beav. , 
 
 529, ... - 657, 673 
 
 V. Read, 17 Gratt. 544, - 810 
 
 V. Smith, 18 Johns. 459, 535 
 
 Robias v. Warde, 111 Mass. 
 
 244, . - - - 981, 1147 
 
 Robinson's Case, 6 DeG. M. & 
 
 G. 572, 73 
 
 Robinson, Ex parte, 3 Dea. & 
 
 Ch. 37G ; 1 Mont. & A. 18, - 755 
 
 V. Aldridge, 34 Miss. 352, 347, 
 
 361, 362 
 V. Anderson, 20 Beav. 98 ; 
 
 7 D. M. G. 289, - 181. 770, 780 
 
 V. Ashtou, L. R. 20 Eq. 25, 256, 
 
 284 
 
 V. Bland, 2 Burr. 1086. - 758 
 
 V. Bullock, 58 Ala. 618, 61, 876 
 
 V. Crowder, 4 McCord (S. 
 
 Ca.), L. 519 (17 Am. Dec. 
 
 762), - 299, 338, 340, 417, 418 
 V. Crowde]-, 1 Bail. (S. Ca.) 
 
 185, 1120 
 
 V. Davison, L. R, 6 Exch. 
 
 269, - - - 224, 770, 780 
 
 V. GilQllan, 15 Hun, 267, 261, 
 
 274, 981 
 V. Gleadow, 2 Bing. N. 
 
 Cas. 156, .... 409 
 — V. Goings, 63 Miss. 500, - 466, 
 
 467, 408 
 V. Green, 5 Harr. (Del.) 
 
 115, - 854, 1135, 1136, 1139 
 
 V, Gregory, 29 Barb. 560, 340 
 
 V. Haas, 40 Cal. 474, 62, 1143, 
 
 1153 
 
 V. Hall, 3 Met. 301, - - 1128 
 
 V. Hofman, 4 Bing. 562; 
 
 1 Moo. & P. 474, - 
 
 — V. McFaul, 19 Mo. 549, - 
 
 — V. Mcintosh, 3 E. D. 
 
 381 
 1167 
 
 Smith, 22, - - - - 1015 
 
 — V. Magarity, 28 111. 423, - 191 
 
 — V. Mansfield, 13 Pick. 139, 1022 
 
 — V. Marchaut, 7 Q. B. 918, 1032 
 
 Robinson v. Moriarity, 2 G. 
 
 Greene (Iowa), 497, - - 543 
 
 V. Robinson, 10 Me. 240, - 458 
 
 V. Taylor, 4 Pa. St. 242, - 695 
 
 V. Tevis, 38 Cal. 611, 180, 1102, 
 
 1103 
 V. Thompson, 1 Vernon, 
 
 465, .... 432, 958 
 V. Thompson, Sm. & Mar. 
 
 Ch. (Miss.) 454, - - - 722 
 V. Turner, 3 G. Greene 
 
 (Iowa), 540, ... - 1163 
 
 V. Ward, 13 Oh. St. 293, 176 
 
 V. Wilkinson, 3 Price, 
 
 538, .... 420, 525 
 
 V. Williams, 8 Met. 454, 858, 
 
 863 
 
 V. Worden, 33 Mich. 316, 623 
 
 V. Wright, Brayton (Vt.), 
 
 22, 738 
 
 Robley v. Brooke, 7 Bligh, 90, 265 
 Robson V. Curtis, 1 Stark. 78, 853, 
 
 872 
 V. Drummoud, 2 B. & Ad. 
 
 303, - - - - 710, 1020 
 
 Rochester v. Monteath, 1 Den. 
 
 402 (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, - 453, 829 
 Rodcnv. Roland, 1 Stew. (Ala.) 
 
 266, 1121 
 
 Rodes V. Rodes, 6 B. Mou. 
 
 400, 766 
 
 Rodgers v. Maw, 15 M. & W. 
 
 444; 4 Dow. & L. 66, - 532, 533 
 
 V. Meranda, 7 Oh. St. 179. 824, 
 
 825, 828, 832, 836, 837 
 Rodriguez v. Hcffernan, 5 
 
 Johns. Ch. 417, - - - 184 
 Rogers v. Batchelor, 13 Pet. 
 
 221, .... 1038, 1040 
 
 v. Coit, Hill, 323, - - 441 
 
 V. Nichols, 20 Tex. 719, - 263, 
 
 ■552, 554,1101, 1109 
 
 clu
 
 Roo.] 
 
 TABLE OF CASES. 
 
 [Eow. 
 
 Rogers v. Nuckolls, 2 Colorado, 
 
 281, 1073 
 
 V. Rogers (Conn.), 21 Rep. 
 
 394, 674 
 
 V. Rogers, 5 Ired. (N. Ca.) 
 
 Eq. 31, - - - - 900, 905 
 
 V. Suttle, 19 lU. App. 163, 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, 530 
 
 — V. Rolfe, 15 Sim. 88, - 677 
 Rollins V. Stevens, 31 Me. 454, 349, 
 
 358 
 Rolston V. Click, 1 Stew. (Ala.) 
 
 526, .... 349, 363 
 Romain v. Garth, 3 Hun, 214, 383 
 Roney v. Buckland, 4 Nev. 45, 341, 
 
 370, 373, 1170 
 Rooke V. Nisbet, 50 L. J. C)i. 
 
 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, 335, 618 
 Roots V. Salt Co. 27 W. Va. 
 
 483, - 406, 689, 693, 694, 770 
 Ropes V. Upton, 125 Mass. 258, 676, 
 
 678 
 Rose V. Baker, 13 Barb. 230, - 447, 
 
 524, 537 
 V. Coffield, 53 Md. 18 (36 
 
 Am. Rep. 389), - - 613, 618 
 - — V. Guun, 79 Ala. 411, 737, 737 
 
 V. Keystone Shoe Co. 
 
 (Sup. Ct. Pa. 1886) 18 Weekly 
 Notes, 585, - - - - 567 
 
 Rosenfeld v. Haight, 53 Wis. 
 
 260 (40 Am, Rep. 770), 17, 49, 50 
 Rosenkrans v. Barker, 115 111. 
 
 331, . - 466, 467, 468, 469 
 Rosenstiel v. Gray, 112 111. 282, 161, 
 167, 184, 917, 918, 931, 971, 972 
 Roseuzweig v. Thompson, 66 
 
 Md. 593, . . - 934, 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, 285, 291, 295, 834, 1099, 
 
 nil, 1112 
 
 V. Howell, 84 Pa. St. 
 
 129, 377 
 
 V. McLauchlan, 7 Gratt. 
 
 86, 963 
 
 V. Parky ns, L. R. 20 Eq. 
 
 331, 43 
 
 V. Pearson, 21 Ala. 473, - 723, 
 
 736, 738 
 V. Titsworth, 37 N. J. Eq. 
 
 333, . - . 834, 935, 1006 
 V. West, 2 Bosw. 360, . 893 
 
 Roth V. Colvin, 33 Vt. 135, 338, 353, 
 
 354 
 
 V. Moore, 19 La. Ann. 86, 446 
 
 Rothwell V. Humphreys, 1 
 
 Esp. 406, .... 370 
 Roulston V. Washington, 79 
 
 Ala. 529,r .... 908 
 RoLiten V. Bostwick, 59 Ala, 
 
 360, 980 
 
 Routh V, Peach, 3 Anstr. 637, 234 
 
 V. Webster, 10 Beav. 561, 672, 
 
 990 
 Rowand v, Fraser, 1 Rich. (S. 
 
 Ca,) L. 335, .... 543 
 Rowe V. Wood, 2 Jac, & W, 
 
 589, 313 
 
 Rowland, Re, L, R, 1 Ch. App. • 
 
 421, . - . . *. 105 
 
 V, Boozer, 10 Ala. 690, 301, 303, 
 
 893 
 V. Long, 45 Md. 439, . 4 1, 56 
 
 cliii
 
 Row.] 
 
 TABLE OF CASES. 
 
 [Sag. 
 
 Rowland v. Header Furniture 
 
 Co. 38 Oh. St. 269, - - 4 
 
 V. Miller, 7 Phila. 3G2, - 812 
 
 Rowlands v. Evans, 30 Beav. 
 
 202, ... - 581, 977 
 Rowlandson, Ex parte, 1 Rose, 
 
 89, IG, 44 
 
 Rowley v. Adams, 8 Jur. 994, 288 
 
 V. Stoddard, 7 Johns. 207, 385 
 
 Rowsey v. Lynch, 61 Mo. 560, 636 
 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 
 Ruffner v. Hewitt, 7 W. Va. 
 
 585, 680 
 
 V. Hewitt, 14 W. Va. 737, 938 
 
 V. McConnel, 17 111. 212 
 
 (63 Am. Dec. 362), - - 299 
 
 Ruhev. Burnell, 121 Mass. 450, 1151, 
 
 1152 
 Ruhl V. Phillips, 2 Daly, 45, - 560 
 Rumery v. McCuUoch, 54 Wis. 
 
 565, - - - 338, 339, 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 
 Rushton V. Rowe, 64 Pa. St. 63, 1 124 
 Russ V. Fay, 29Vt. 381, - - 1105 
 Russell v. Annable, 109 Mass. 
 
 72 (12 Am. Rep. 665j, - 321, 347 
 
 416, 423 
 • V. Byron, 2 Cal. 86, - 849, 856 
 
 Russell V. Convers, 7 N. H. 343, 1045 
 
 V. Green, 10 Conn. 269, 32. 382, 
 
 490, 788, 982 
 
 V. Grimes, 46 Mo. 410, 8«7, 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 (aflfd. 76 N. Y. 614), 347, 363 
 Ruth V. Lovvrey, 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, 168, 181, 
 
 446, 1114 
 
 V. Wilcox, 103 Mass. 24, 17, 32, 
 
 35, 873, 878 
 Ryerson v. Hendrie, 22 Iowa, 
 
 480, 315 
 
 Ryhiner v. Feickert, 92 111. 305 
 
 (34 Am. Rep. 130), - - 1142 
 
 s. 
 
 Sabin v. Cooper, 15 Gray, 532, 1125 
 Sadler, Ex parte, 15 Ves. 52, - 832, 
 
 834 
 
 V. Lee, 6 Beav. 324, 471, 474, 
 
 480, 581 
 
 V. Nixon, 5 B. & Ad. 936, 852 
 
 Sage V. Chollar, 21 Barb. 596, 560 
 V. Ensign, 2 Allen, 245, - 705 
 
 cliv
 
 Sag.] 
 
 TABLE OF CASES. 
 
 [Sar. 
 
 Sage V. Sherman, 2 N. Y. 417, 201, 
 279, 292, 299, 322, 1050 
 
 V. Woodin, 6G N. Y. 578, 743 
 
 Sager v. Tupper, 38 Mich. 258, 1143, 
 
 1144, 1155, 1159 
 Sailors v. Nixon-Jones Printing 
 
 Co. 20 111. App. 509, - - 17, 88 
 St. Armand v. Long, 25 La. 
 
 Ann. 167, - ... 156 
 St. Aubyn v. Smart, L. R. 3 > 
 
 Ch. App. 646, - - - 474 
 St. Barbe, Ex parte. 11 Ves. 413, 837 
 St. Denis v. Saunders, 36 Mich. 
 
 369, - - - - 61, 970 
 
 St. James Club, 2 De G. M. & 
 
 G. 383, 75 
 
 St. John V. Hendrickson, 81 
 
 Ind. 350, .... 897 
 
 V. Holmes, 20 Wend. 609, 380 
 
 St. Louis Ins. Co. v. St. Louis, 
 
 Vandalia, etc. R. R. 104 U. S. 
 
 146 (3 Am. & Eng. R. R. Cas. 
 
 . 563), 66 
 
 St. Louis Type Foundry v. Wis- 
 dom, 4 Lea, 695, - - - 494 
 St. Niciiolas BIj. v. Savery, 13 
 
 Jones & Sp.(45 N. Y. Superior 
 
 Ct.) 97, - - - - 358, 363 
 St. Victor V. Daubert, 9 La. 
 
 314, 43 
 
 Sale V. Dishman, 3 Leigh (Va.), 
 
 548, - - 420, 423, 747, 750 
 Salmon v. Davis, 4 Binn. (Pa.) 
 
 375 (5 Am. Dec. 410), - 3S1, 1035 
 Saloy V. Albrecht, 17 La. Ann. 
 .75, - - 562, 566, 583, 756 
 
 Salsbury v. Ellison, 7 Colorado, 
 
 167 (49 Am. Rep. 347), - 726, 732 
 Salt Co. V. Guthrie, 35 Oh. St. 
 
 666, 112 
 
 Salter v. Ham, 31 N. Y. 321, - 47 
 Saltmarsh v. Bower, 22 Ala. 
 
 231, - - - 351, 370, 448, 
 Saltoun V. Houstoun, 1 Bing. 
 
 433, - 239, 457, 635, 643, 879 
 
 Sampson v. Shaw, 101 Mass. 
 
 145, - - - 112, 119, 749 
 
 Sanborn v. Dwinell, 135 Mass. 
 
 336, 934 
 
 V. Royce, 132 Mass. 594 
 
 (21 Am. Law Reg. N. S, 799), 1106 
 V. Sanborn, 11 Grant's 
 
 Ch. (Up. Can.) 359, - 290, 297 
 Sander v. Hoffman, 64 N. Y. 
 
 248 (rev. 7 J. & Sp. 307), - 677 
 
 V. Sander, 2 Coll. 276, - 581 
 
 Sanders v. Knox, 57 Ala. 80, - 496 
 
 V. Pepoon, 4 Fla. 465, - 407 
 
 V. Scott, 68 Ind. 130, - 788 
 
 V. Young, 31 Miss. Ill, - 584, 
 
 1101, 1105, 1109 
 Sanderson v. Milton Stage Co. 
 
 18 Vt. 107, - - - 575, 607 
 
 V. Sanderson, 17 Fla. 820, 789, 
 
 793, 925, 947 
 
 V. Sanderson, 20 Fla. 293, 787, 
 
 793 
 
 V. Stockdale, 11 Md. 563, 562, 
 
 563, 939 
 Sandham, Ex parte, 4 Deac. & 
 
 Ch. 812, 512 
 
 Sandusky, Re, 17 Bankr. Reg. 
 
 452, .... 847, 848 
 Sandy v. Randall, 20 W. Va. 
 
 244, 949 
 
 Sanford v. Mickles, 4 Johns. 
 
 224. .... 690, 695 
 Sanger v. Overmier, 64 Tex. 
 
 57, - - - - 1086, 1088, 1091 
 Sangster v. Mazarredo, 1 
 
 Stark. 161, - - - - 331 
 Sangston v. Hack, 52 Ind. 173, 43, 
 
 216, 217, 775, 785, 789, 814, 952, 978 
 San Jose Indiano, 2 Gall. 268, 191, 
 
 793 
 Sankey v. Columbus Iron 
 
 Works, 44 Ga. 228, 32, 43, 1151, 
 
 1158 
 Sanson v. Lathrop, 25 Barb. 
 
 455, 825 
 
 Santa Clara Min. Ass'n v. 
 
 Quicksilver Min. Co. 17 Fed. 
 
 Rep. 657 ; 8 Sawy. 330, - - 907 
 Sarchet v. Sarcbet, 2 Oh. 320, 920 
 
 civ
 
 Sar.] 
 
 TABLE OF CASES, 
 
 [SCO. 
 
 Sargent v. Collins, 3 Nev. 260, 1150 
 
 V. Downey, 45 Wis. 498, - 68 
 
 V. Franklin Ins. Co. 2 
 
 Pick. 90, .... 333 
 Satterthwait v. Marshall, 4 
 
 Del. Ch. 337, - - - 1012, 1013 
 Sanfley v. Howard, 7 Dana, 
 
 367, - - 80, 84, 101, 323, 459 
 Saul V. Kruger, 9 How. Pr. 569, 277 
 Saunders v. Bartlett, 12 Heisk. 
 
 316, 1105 
 
 V. Bcntly, 8 Iowa, 516, - 1086 
 
 V. Duval, 19 Tex. 467, 978, 979 
 
 V. Rcilly, 105 N. Y. 12, - 190, 
 
 565, 567, 824, 829, 1130 
 
 V. Wood, 15 Ark. 24, 930, 938 
 
 Sauntry v. Dunlap, 12 Wis. 
 
 364, 1045 
 
 Sauthoff, Re, 8 Biss. 35; 16 
 
 Bankr, Reg. 181; 5 Am. Law 
 
 Rec. 173, - SCO, 564, 1131, 1133 
 
 566 
 
 -, Re, 16 Bankr. Reg. 316, 
 
 Savage, Re. 16 Bankr. Reg.3G8, 825, 
 
 836, 837 
 
 V. Carter, 9 Dana, 403, - 188, 
 
 550, 552, 766, 973, 1111 
 
 V. Putnam, 32 N. Y. 501, 187, 
 
 534, 
 Savannah v. Hines, 53 Ga. 616, 175 
 Savery v. Thurston, 4 111. 
 
 App. 55, - - - 231, 815 
 
 Saville v, Robertson, 4 T. R. 
 
 720, 71, 80 
 
 Savings Bk. v. Wulfekuhler, 
 
 19 Kan. 60, - - - - 394 
 Savings & Loan Soc. v, Gibb, 
 
 21 Cal. 595, - - - - 
 Sawyer v. Proctor, 2 Vt. 580, - 
 v. Tappan, 14 N. H. 352, - 
 
 569 
 899 
 495 
 
 581 
 
 Sayer v. Bennett, 1 Cox, 107, ■ 
 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. Jurdine, L. R. 7 App. 
 
 Cas. 345, 109, 517, 612, 626, 1054 
 
 Schaeffer v. Fithian, 17 Ind. 
 
 463, .... 568, 824 
 Schalck v. Harmon, 6 Minn. 
 
 265, - 180, 680, 754, 824, 1111 
 
 Scharringhausen v. Luebsen, 
 
 52 Mo. 337, - - - - 247 
 Schenkl v. Dana, 118 Mass. 
 
 236, ... - 773, 773 
 
 Schermerhorn v. Schermer- 
 
 horn, 1 Wend. 119, - 349, 363 
 Schiele v. Healy, 61 How. Pr. 
 
 73, 561, 566 
 
 Sch later v. Winpenny, 75 Pa. 
 
 St. 321, - - - 611, 631, 708 
 Schraidlapp v. Currie, 55 Miss. 
 
 597 (30 Am. Rep. 530), 565, 5G8, 835 
 Schmidt V. Lebby, 11 Rich. Eq. 
 
 329, 955 
 
 Schmertz v. Shreeve, 63 Pa. 
 
 St. 457 (1 Am. Rep. 439), 416, 418 
 Schnader v. Schnader, 26 Pa. 
 
 St. 384, 1162 
 
 Schneider v. Sansom, 62 Tex. 
 
 201 (50 Am. Rep. 531), - - 403 
 Scholefield v. Eichelberger, 7 
 
 Pet. 586, - - - 580, 598 
 
 Schoneman v. Fegley, 7 Pa. St. 
 
 433, 696 
 
 Schooner Ocean Belle, 6 Ben. 
 
 253, 908 
 
 Schooner Steelman, 5 Hughes, 
 
 C. C. 210, - . - - 496 
 Schorten v. Davis, 21 La. Ann. 
 
 173, 613 
 
 Schreiber v. Sharpless, 6 Fed, 
 
 Rep. 175, - - - - 468 
 Schriber v. Rapp, 5 Watts, 
 
 351, 13 
 
 Schuchardt, In re, 15 Bankr. 
 
 Reg. 161, - . - 472 
 
 Schulte v, Anderson, 13 Jones 
 
 & Sp. 489 (45 N. Y. Superior 
 
 Ct.), .... 810,817 
 Schwabacker v. Riddle, 84 III. 
 
 517, 473a 
 
 Scott's Appeal, 88 Pa. St. 173, 533, 
 
 845, 846 
 
 clvi
 
 SCO.] 
 
 TABLE OF CASES. 
 
 [See. 
 
 Scott V. Bandy, 2 Head, 197, - 349, 
 
 364, 1168 
 
 V. Beale, 6 Jur. N. S. 559, 497 
 
 V. Bogait, 14 La. Ann. 
 
 2G1, 1085 
 
 V. Campbell, 30 Ala. 728, 26, 
 
 850, 874, 876 
 
 V. Caruth, 50 Mo. 120, 849, 853, 
 
 858 
 
 V. Clark, 1 Oh. St. 382, 169, 770 
 
 V. Colmeanil, 7 J. J. Mar. 
 
 416, 156, 157, 454, 525, 535, 608 
 
 V. Conway, 58 N. Y. 619, 139, 
 
 1052 
 
 V. Dansby, 12 Ala. 714, - 347. 
 
 362, 1152 
 
 V. Goodwin, 1 B. & P. 67, 1016 
 
 V. Green, 89 N. Ca. 278, - 904, 
 
 905 
 
 V. Jones, 5 Ala. 694, - 1167 
 
 V. Kenan, 94 N. Ca. 296, - 1131 
 
 V. Mcintosh, 2 Camp. 238, 865 
 
 V. McKinney, 98 Mass. 344, 265 
 
 V. Miller, H. V. Johns. 220, 110 
 
 V. Pinkerton, 3 Edw. Ch. 
 
 70, 930, 938 
 
 V. Ray, 18 Pick. 360, - 495 
 
 V. Rayment, L. R. 7 Eq. 
 
 112, .... 870, 1012 
 V. Rowland, 26 L. T. N. 
 
 S. 391 ; 20 W. R. 508, - 671, 672 
 V. Searles, 5 Sm, & Mar. 
 
 25, 738 
 
 V. Shipherd, 3 Vt. 104, - 384, 
 
 406, 449, 979 
 
 V. Trent, 1 Wash . (Va. ) 77, 412, 
 
 1079 
 V. Trent, 1 Wash. (Va.) 
 
 526, 381 
 
 V. Tupper, 8 Sm. & Mar. 
 
 280, - - 731, 732, 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, - - - 852 
 
 Scroggs V. Cunningham, 81 
 
 111. 110, 788 
 
 Scruggs V. Blair, 44 Miss. 406, 281, 
 
 294, 297, 1117 
 
 V. Burruss, 25 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, 742, 
 
 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, 842 
 Sculthorpe v. Bates, 5 Up. 
 
 Can. Q. B. 318, - - - 1149 
 Seabrook v. Rose, 2 Hill (S. 
 
 Ca.), Ch. 553, - . . 70 
 
 Seaman v. Ascherman, 57 
 
 Wis. 547, - - - 320, 325 
 
 V. Huffaker, 21 Kan. 254, 188, 
 
 550 
 868 
 
 V. Johnston, 46 Mo. Ill, - 
 
 V. Waddington, 16 Johns. 
 
 510, 
 
 Sears v. Munson, 23 Iowa, 380, 
 
 582 
 63, 
 773 
 Sechel v. Mosenthal, 30 Beav. 
 
 371, 1010 
 
 Second Nat'l Bk., Appeal of, 83 
 
 Pa. St. 203, - - - - 289 
 Second Nat'l Bk. v. Farr (N. 
 
 J.), 7 Atl. Rep. 892, - - 560 
 Secor V. Keller, 4 Duer, 416, - 1022 
 Sedam v. Williams, 4 McLean, 
 
 51, - - - - 504, 535, 552 
 Sedgwick v. Lewis, 70 Pa. St. 
 
 217, 352 
 
 Seekell v. Fletcher, 53 Iowa, 
 
 333, - - 201, 439, 444, 1158 
 
 Seeley v. Boehm, 2 Madd. 176, 925 
 Seely v. Schenck, 2 N. J. L. 75, 1018, 
 
 1065 
 
 clvii
 
 See.] 
 
 TABLE OF CASES. 
 
 [Sha. 
 
 Seely v. Beck, 42 Mo. 143, - 111 
 Seelyi; v. Taylor, 33 La. Ann. 
 
 1115, 849 
 
 Seguin's Appeal, 103 Pa. St. 139, 485 
 Seighortner v. Weissenborn, 
 
 20 N. J. Eq. 172 (rev. in part 
 
 in 31 id. 483), 577, 591, 593, 851 
 
 Selden v. Bank of Commerce, 
 
 3 Minn. 166, - - - 349, 363 
 Seldner. v. Mt. Jackson Nat'I 
 
 Bk. 66 Md. 468, - - 399, 696 
 Seligman v. Kalkman, 17 Cal. 
 
 152, ... - 753, 935 
 
 Selking v. Jones, 53 Ind. 409, 381 
 Sellers v. Streater, 5 Jones, L. 
 
 261, .... 416, 421 
 
 Sellew V. Chrisfield, 1 Handy, 
 
 86, 1117 
 
 Sells V. Hubbell, 2 Johns. Ch. 
 
 394, . - - - 531, 739 
 
 Selzer v. Beale, 19 W. Va. 274, 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, 792, 795, 930, 931, 
 
 933 
 Settle V. Davidson, 7 Mo. 604, 420, 
 
 421 
 Setzer v. Beale, 19 West Va. 
 
 274, 158, 164, 165, 166, 771, 981 
 
 Seward v. L'Estrange, 36 Tex. 
 
 295, .... 526, 694 
 
 Sewell v. Cooper, 21 La. Ann. 
 
 583, 881 
 
 Sexton v. Lamb, 27 Kan. 426, 254, 
 
 780 
 
 V. Sexton, 9 Gratt. 204, - 309 
 
 Seybold v. Green wald, 1 Dis- 
 ney, 425, - - - 322, 370 
 Seymour v. Butler, 8 Iowa, 
 804, .... 386, 387 
 
 V. Freer, 8 Wall. 202-215, 43 
 
 V. Marvin, 11 Barb. 80, - 489 
 
 V. Western R. R. Co. 106 
 
 U. S. 320, - - 
 
 Shaaber v. Bushong, 105 Pa. 
 
 St. 514, 349 
 
 Shackelford v. Shackelford, 32 
 
 Gratt. 481, 552, 553, 554, 559, 500, 
 
 824, 978 
 Shackleford v. Clark, 78 Mo. 
 
 491, .... 826,848 
 
 Shafer's Appeal, 99 Pa. St. 246, 507 
 Shafer's Appeal, 106 Pa. St. 49, 289, 
 
 543, 868 
 Shafer v. Hockheimer, 36 Oh. 
 
 St. 215, 218, .... 1063 
 V. Randolph, 99 Pa. St. 
 
 250, 101 
 
 Shaffer v. Snyder, 7 S. & R. 
 
 503, 623 
 
 Shaler v. Trowbridge, 38 N. J. 
 
 Eq. 595, - - - 544, 790, 791 
 Shamburg v. Abbott, 113 Pa. 
 
 St. 6, - - - - 72, 533 
 
 V. Ruggles, 83 Pa. St. 148, 153, 
 
 507, 510, 511, 512, 609 
 Shanahan, Re, 6 Biss. 39, - 754 
 Shanks V. Klein, 104 U. S. 18, 281, 
 
 294, 300, 733 
 Shannon v. Wright, 60 Md. 
 
 520, 994 
 
 Shapard v. Lightfoot, 56 Ala. 
 
 506, - - 1085, 1086, 1093 
 
 Sharp V. Hibbins, 42 N. J. Eq. 
 
 543, - - - 545,921,937 
 
 V. Taylor, 3 Phil. 801, 114, 125, 
 
 126 
 Sharpe v. Cummings, 2 Dow. 
 
 & L. 504, - - - - 181 
 
 V. Johnston, 59 Mo. 557, 277, 
 
 542 
 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. & 
 1016 I Jam. 127, - - - - 382 
 clviii
 
 Sha.] 
 
 TABLE OF CASES. 
 
 [Sho. 
 
 Shaw V. Farnsvvorth, 108 Mass. 
 
 357, 299 
 
 V. Gait, 16 Irish Com. L. 
 
 357, 43 
 
 V. Gandolfo, 9 La. Ann. 
 
 32, 819 
 
 V. McDonald, 21 Ga. 395, 184, 
 
 186, 1044 
 
 — V. McGregoiy, 105 Mass. 
 
 96, 317, 339, 347, 510, 515, 519, 520 
 
 V. Pictou, 4 B. & C. 715, - 489 
 
 V. Pratt, 22 Pick. 305, - 385 
 
 V, State, 56 Iiid. 18S, 269, 315 
 
 V. Vanduseu, 5 Up. Can. 
 
 Q. B. 353, . . . - C55 
 Sliea V. Donahue, 15 Lea, 160, 229, 
 
 812 
 Shearer v. Paine, 12 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. 623, - 386 
 
 Shedd V. Bank of Brattleboro, 
 
 32 Vt. 709, 
 
 377, 380, 558 
 1109 
 
 V. Wilson, 27 Vt. 478, - 
 
 Sheedy v. Second Nat'l Bk. 62 
 
 Mo. 17 (21 Am. Rep. 407), - 
 Sheehy v. Graves, 58 Cal. 449, 
 V. Mandeville, 6 Cranch, 
 
 254, 
 
 Sheen, Ex parte, 6 Ch. D. 235, 
 
 843, 846 
 Sheenefield v. Dutton, 85 111. 
 
 503, 
 
 Sheffield Gas, etc. Co. v. Har- 
 rison, 17 Bpav. 294, 
 Sheldon v. Smith, 28 Barb. 593, 
 Shellito V. Sampson, 61 Iowa, 
 
 40, 
 
 Sliel mire's Appeal, 70 Pa. St. 
 
 281, .... 946, 1154 
 Shelton v. Cocke, 3 Muuf. 
 
 (Va.) 191, - - - 700, 705 
 
 V. Knight, 68 Ala. 598, 770, 772, 
 
 773 
 
 184 
 
 535 
 836, 
 
 879 
 
 1012 
 339 
 
 404 
 
 Shepard, Matter of, 3 Ben. 347, 552 
 
 V. Pratt, 16 Kan. 209, 43, 1153 
 
 V. Richards, 2 Gray, 424, 864 
 
 V. Ward, 8 Wend. 542, - 331 
 
 Shepherd v. Allen, 33 Beav. 577, 597 
 
 V. Frys, 3 Gratt. 442, - 1067 
 
 Sheppard v. Boggs, 9 Neb. 257, 660, 
 
 661, 974 
 V. Oxenford, 1 K. & J. 
 
 491, 
 
 914 
 
 Sherburne v. Goodwin, 44 N. 
 
 H. 271, 487 
 
 Sheridan v. Medara, 10 N, J. 
 
 Eq. 469, .... 47 
 
 Sherman v. Christy, 17 Iowa, 
 
 322, - - 315, 346, 537, 1051 
 V. Elder, 1 Hilton (N. Y.), 
 
 178, - - - - 139, 140, 
 
 V. Kreul, 42 Wis. 33, 109, 343, 
 
 750, 1055, 1094 
 Sherrod v. Langdon, 21 Iowa, 
 
 518, .... 101, 102 
 
 Sherry v. Gilmore, 58 Wis. 324, 296 
 Sherwood v. St. Paul & Chi. 
 
 R'y, 21 Minn. 127, - - 301 
 V. Snow, 46 Iowa, 481 (26 
 
 Am. Rep. 155), 341, 348, 380, 370, 
 
 437, 447 
 Shiddell v. Messick, 4 B. Mon. 
 
 157, 794 
 
 Shields v. Fuller, 4 Wis. 102, 716, 722 
 
 V. Oney, 5 Munf. (Va.) 550, 1050 
 
 Shimer v. Huber, 19 Bankr. 
 
 Reg. 414, - - - 559, 560 
 
 Shine v. Central Sav. Bank, 70 
 
 Mo. 524, ... - 193, 655 
 Shinnv. Macpherson, 58 Cal. 
 
 593, . - - . 545, 790 
 
 Ship man. Re, 61 How. Pr. 518, 835 
 Shipwright v. Clements, 19 W. 
 
 R. 599, 
 
 Shirley v. Fearne, 33 Miss. 653, 
 Shirreff v. Wilks, 1 East, 48, 
 
 663 
 
 416 
 
 347, 
 
 609 
 
 Shoe and Leather Bank v. 
 Herz, 89 N. Y. 629 (allg. 24 
 Hun, 260), . - - - 
 cliz 
 
 613
 
 Sho.] 
 
 TABLE OF CASES. 
 
 [Sim. 
 
 Shoemaker v. Benedict, 11 N. 
 
 Y. 176, 704 
 
 V. King, 40 Pa. St. 107, 503, 510 
 
 Shorbe v. Beaudry, 5G Cal. 
 
 44G, 5, 6, 5S9 
 
 Short V. Magruder, 22 Fed. 
 
 Rep, 46, 1131 
 
 V. Stevenson, 63 Pa. St. 95, 307 
 
 Shorter v. Hightower, 48 Ala. 
 
 526, 
 
 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, 5G2 
 Shropshire v. Shepperd, 3 Ala. 
 
 733, 43 
 
 Shubrick v. Fisher, 2 Desaus. 
 
 148, 27 
 
 Shufeldt V. Seymour, 21 111. 
 
 524, 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. 172 (partly reversed 
 
 in \V. V. Seighortner, 21 id. 
 
 483), ... - 277, 993 
 Siffkiu V. Walker, 2 Camp. 
 
 308, .... 439, 440 
 
 Sigler V. Knox Co. Bank, 8 
 
 Oh. St. 511, - - - 5G1, 568 
 
 V. Piatt, 16 Mich. 206, - 704 
 
 Sigourney v. Munn, 7 Conn. 
 
 11; id. 824, - 281,291,295,974 
 Sikes V. Parker, 65 N. Ca. 232, 1170, 
 
 1171 
 
 V. Work, 6 Gray, 433, 64, 287, 
 
 864, 868 
 
 SiUitoe, Ex parte, 1 Gl. & J. 
 
 374, .... 836, 837 
 Silver v. St. L. I. M. & S. R'y, 
 
 5 Mo. App. 381 (afld. 72 SIo. 
 
 194), 865 
 
 Silverman v. Chase, 90 111. 37, 347, 
 
 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. 310, - 957 
 Simmondsv. Swaine, 1 Taunt. 
 
 549, 234 
 
 Simmons v. Curtis, 31 Me. 373, 583, 
 
 587 
 
 V. Leonard, 3 Hare, 581, - 212, 
 
 245 
 Simonds v. Speed, 6 Rich. L. 
 
 390, 1049 
 
 V. Strong, 24 Vt. 642, 623, 624 
 
 Simonton v. McLain, 37 Ala. 
 
 663, 921 
 
 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. 602), 36, 43, 788 
 V. Henniug, L. R. 10 Q. B. 
 
 406, 841 
 
 V. Leech, 86 111. 286, - 290 
 
 V. McDonough, 1 Up. 
 
 Can. Q. B. 157, - - - 348 
 
 V. Schulte, 21 Mo. App. 
 
 639, .... 456, 749 
 Simrall v. O'Bannons, 7 B. 
 
 ]\Ion. 60S, - - 849, 882, 884 
 Sims V. Bond, 5 B. & Ad. 389, 1020 
 V. Brittain, 4 B. & Ad. 
 
 375, 1020 
 
 V. Jacobson, 51 Ala. 186, 1081, 
 
 10G5 
 
 V. McEwen, 27 Ala. 184, 680, 
 
 1014 
 
 V. Ross, 8 Sm. & Mar. 
 
 557, ... - 1026, 1072 
 
 clx
 
 Sim.] 
 
 TxVBLE OF CASES. 
 
 [Smi. 
 
 Sims V. Smith, 11 Rich. (S. Ca.) 
 
 L. 5G5, - 596, G81, 682, 684, 1044 
 V. Willing, 8 Serg. & R. 
 
 103. - - - G7, 259, 263 
 
 Simson v. Cooke, 1 Bing. 452, 497, 
 
 653 
 V. Ingham, 2 B. & C. 65; 
 
 3 Dow. & Ry.' 249, 489, 490, 491, 
 
 501 
 Sinclair v. Wood, 3 Cal. 98, - 1147, 
 
 1158 
 Singer v. Heller, 40 Wis. 544, 594, 
 
 780 
 Singer Mfg. Co. v. Allen, 122 
 
 Mass. 467, .... 655 
 Singerly v. Fox, 75 Pa. St. 112, 935 
 Sinsheimer v. Tobias, 53 N. Y. 
 
 Superior Ct. 508, - - - 636 
 Sir Charles Raymond's Case, 
 
 cited in 2 Rose, 252, 255, - 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. 220, 507, 643 
 Skaife v. Jackson, 1 B. & C. 
 
 421, 383 
 
 Skaunel v. Taylor, 12 La. Ann. 
 
 773, .... 518, 528 
 Skidmore v. Collier, 8 Hun, 
 
 50. 794 
 
 Skillen v. Jones, 44 Ind. 136, 739 
 Skilluian v. Lachman, 23 Cal, 
 
 199, - - 163, 329, 343, 585 
 
 Skinner v. Dayton, 19 Johns. 
 
 513 aO Am. Dec. 286), (rev. 5 
 
 Johus. Ch. 351), 72, 73, 324, 416, 
 
 420, 421, 577 
 V. Shannon, 44 Mich. 86 
 
 (38 Am. Rep. 232), - - 1131 
 
 V. Stocks, 4 B. & Aid. 437, 1019, 
 
 1021 
 
 V. Tinker, 34 Barb. 333, 571 
 
 Skipp V. Harwood, 2 Swanst. 
 
 586, .... 584, 1111 
 Skipwith V. Lea, 16 La. Ann. 
 
 247, 718 
 
 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, 2 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, 24 Oh. St. 
 
 209, 425 
 
 V. Moore, 37 Pa. St. 217, 276, 
 
 404, 428, 594, 991, 994, 998 
 
 V. Owens, Lane & Dyer 
 
 407 
 833 
 
 Mach. Co. 70 Mo. 206, - 
 Slocum, Re, 5 Fed. Rep. 50, 
 V. Hooker, 13 Barb. 536 
 
 (reversing s. C. 12 id. 563), - 148 
 Slocumb V. Lizardi, 21 La, 
 
 Ann. 355, .... 398 
 Sloo V. Lea, 18 Oh. 279, - . 535 
 
 V. Powell, Dallam, 467, - 421 
 
 V. State Bank of 111. 2 111. 
 
 428, .... 377, 414 
 Slutts V. Chafee, 48 Wis. 617, 1049 
 Smale v. Graves, 19 L. J. (N. 
 
 S.) Ch. 157 ; 14 Jur. 662, - 668 
 Small V. Riddle, 31 Up. Can. 
 
 C. P. 373, - - - 852, 881 
 Smead v. Lacey, 1 Disney, 239, 504, 
 510, 511, 512, 520, 558, 848 
 Smelting Co. v. Smith, 13 R. L 
 
 27 (43 Am. Rep. 3), . - 422 
 Smith's Estate, 11 Phila. 131, - 580, 
 
 731 
 cLxi
 
 SMI.] 
 
 TABLE OF CASES. 
 
 [Smi. 
 
 1105 
 
 825 
 971 
 
 802 
 
 603 
 841 
 
 Smith, Ex parte, 3 Madd. 03, - 263 
 
 , Ex parte, 1 Glyn. & J. 74, 838 
 
 , Matter of, 16 Jolins. 103 
 
 (1 Am. Ijead. Cas. 457), (now- 
 overruled), - - - - 
 
 , Re, 13 Bankr. Reg. 500, - 
 
 , Re, 16 Bankr. Reg. 113, - 
 
 V. Allen, 18 Johns. 245, - 
 
 V. Andrews, 49 111. 28, - 184. 
 
 186 
 
 V. Ayer, 101 U. S. 320, - 
 
 V. Bailey, 11 Mod. 401, - 
 
 V. Barringer, 74 N. Ca. 
 
 665, .... 964, 967 
 
 V. Barrow, 3 T. R. 476, 722, 868 
 
 V. Black, 9 Serg. & R. 143 
 
 (11 Am. Dec. 686), - - 535 
 V. Bkitchford, 3 Ind. 184 
 
 (53 Am. Dec. 504), - - 1070 
 
 V. Bodine, 74 N. Y. 30, - 43 
 
 V. Book, 5 Up. Can. Q. B. 
 
 (O. S.)556, - ... 274 
 
 V. Bryan, 60 Ga. 628, 1057, 1085 
 
 V. Bryson, Phil. (N. Ca.) 
 
 Eq. 257, 923 
 
 V. Buruham, 3 Sumner, 
 
 435, .... 150, 301 
 
 V. Cahoon, 37 Me. 281, - 1104 
 
 V. Canfield, 8 Mich. 493, - 1049 
 
 V. Chenault, 48 Tex. 455, 1131, 
 
 1133 
 
 V. Cisson, 1 Colorado, 29, 334, 
 
 1146 
 
 V. Collins, 115 Mass. 888, 318, 
 
 328, 339, 341, 370, 440, 450, 451, 
 
 1154 
 V. Cooke, 31 Md. 174, 1049, 1050 
 
 V. Cooper, 5 Abb. New 
 
 Cas. 274, - - - 669, 672 
 
 V. Craven, 1 Cr. & J. 500, 80 
 
 V. Cropper, L. R. 10 App. 
 
 Cas. 249, .... 
 
 V. Danvers, 5 Sandf. 669, 
 
 V. Dennison, 101 111. 531, 
 
 V. Duke of Chandos, Bar- 
 
 nardiston, 419; 3 Atk. 453, - 
 
 1071 
 
 283 
 
 680, 
 
 687 
 
 213 
 clxii 
 
 Smith V. Edwards, 3 liar. & G. 
 
 (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, 26 Oh. 
 
 St. 141, 537 
 
 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, 434 
 
 V. Gregg, 9 Neb. 313, - 1061 
 
 V. Griffith, 3 Hill. 333, - 1155 
 
 V. Hall, 5 Bo.sw. 319, - 394 
 
 V. Harris, 76 Ind. 104, - 1131 
 
 V. Hazleton, 34 Ind. 481, 761, 
 
 780, 810, 9:38 
 
 V. Hill. 13 Ark. 173, - 437 
 
 V. Hill, 45 Vt. 90 (13 Am. 
 
 Rep. 189), ... - 98 
 V. Hoffman, 3 Cranch, C. 
 
 C. 651, 446 
 
 V. Hollister, 33 Vfc. 695, 76, 1033, 
 
 1135, 1146 
 
 V. Hood, 4 lU. 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, 031 
 
 V. Jackson, 3 Edw. Ch. 38, 285 
 
 V. Jameson, 5 T. R. 601, - 487 
 
 V. Jeyes, 4 Beav. 503, 990, 994 
 
 V. Jones, 13 Me. 333, - 345 
 
 V. Kerr, 3 N. Y. 144, 393, 416, 
 
 417 
 V. Knight, 71 111. 148 (33 
 
 Am. Rep. 94), - 23, 47, 1167
 
 Smi.] 
 
 TABLE OF CASES. 
 
 [Snb. 
 
 Smith V. Ledyard, 49 Ala. 279, 703 
 
 V. Loriag, 2 Oli. 440, 349, 761 
 
 V. Lowe, 1 Edw. Ch. (N. 
 
 Y.)14, 995 
 
 V. Ludlow, G Jolms. 207, 703 
 
 V. Lusher, 5 Cow. 088, 543, 882, 
 
 884 
 -^— V. McMicken, 3 La. Ann. 
 
 819, 1103 
 
 V. Mallory, 24 Ala. 628, - 825, 
 
 828 
 
 V. Moynihan, 44 Cal. 53, 59 
 
 V. Mules, 9 Hare, 550, 241, 269, 
 
 574, 974 
 V. Mulock, 1 Robt. (N, Y.) 
 
 569; 1 Abb. Pr. (N. S.) 374, 575 
 
 V. Onell, 1 East, 308, - 755 
 
 V. Orser, 42 N. Y. 132 (aff. 
 
 S. C. 43 Barb. Ib7), - - 1105 
 
 V. Parkes, 16 Beav. 115, 184, 
 
 723 
 
 V. Perry, 29 N. J. L. 74, - 43 
 
 V. Ramsey, 107 Mass. 82, 283 
 
 V. Ramsey, 6 111. 373, 288, 541, 
 
 790 
 
 V. Riddell, 87 111. 105, - 877 
 
 V. Rogers, 17 Johns. 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. 233, 26, 274, 
 
 894 
 
 V. Smith, 5 Ves. 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, 42 Iowa, 493, - 439 
 
 V. Stone, 4 Gill & J. 310, 415 
 
 V. Sum merlin, 48 Ga. 425, 59 
 
 V. TarltoD, 2 Barb. Ch. 
 
 336, - - 208, 281, 801, 303 
 V. Teer, 21 Up. Can. Q. B. 
 
 412, .... 637, 640 
 
 Smith V. Tupper, 4 Sm. & Mar. 
 261. See Doe ex dem. Smith 
 V. Tupper. 
 
 V. Turner, 9 Bush, 417, 341, 
 
 418, 533, 527 
 
 V. Vanderburg, 46 111. 34, 45, 
 
 47, 48, 587, 589 
 
 V. Walker, 38 Cal. 335, - 719 
 
 V. Walker, 57 Mich. 456, 675, 
 
 1136 
 
 V. Walker, 6 S. Ca. 100, - 1018 
 
 V. Watson, 2 B. & C. 401; 
 
 8 D. & R. 751, 16, 258, 200, 1110 
 
 V. Wigley, 3 Moo. & Sc. 
 
 174, 497 
 
 V. Winter, 4 M. «fe W. 454, 690, 
 
 691, 698 
 
 V. Wood, 31 Md. 393, 716. 719, 
 
 722, 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 
 
 Smock V. Pierson, 68 Ind. 405, 657 
 Smyth, Ex parte, 3 Dea. 597, 838, 
 
 843 
 
 V. Harvie, 31 111. 63, - 709 
 
 V. Strader, 9 Porter (Ala.), 
 
 446 ; 4 How. (U. S.) 404, 626, 691, 
 
 883, 884 
 V. Strader, 4 How. (U. S.) 
 
 404 ; S. C. 9 Porter (Ala.), 448, 626, 
 
 691, 883, 884 
 Snaith v. Burridge, 4 Taunt. 
 
 684, 1046 
 
 Snarr v. Small, 13 Up. Can. 
 
 Q. B. 125, .... 390 
 Suead v. Barringer, 1 Stew. 
 
 (Ala.) 134, - . . 156, 157 
 Sueed. v. Kelley, 3 Dana, 538, 195 
 
 V. Mitchell, 1 Hayw. (N. 
 
 Ca.)289, .... 543 
 
 V. Wiester, 2 A. K. Mar. 
 
 (Ky.) 277, - . 491, 495, 525 
 
 clxiii
 
 Sne.] 
 
 TABLE OF CASES. 
 
 [Spb. 
 
 566 
 
 886 
 
 968 
 
 259, 
 
 912 
 
 Snell V. Crowe, 3 Utah, 20, - 1105, 
 
 1103, 1113 
 
 V. De Land, 43 HI. 323, - 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. 55, 315, 
 
 346, 1051 
 Snowball, Ex parte, L. R. 7 
 
 Ch. App. 534, 
 Snyder v. Baber, 74 Ind. 47, - 
 
 V. Hall, 10 111. App. 235, - 
 
 V. Lunsf ord, 9 W. Va. 223, 
 
 261, 347, 410, 5G5 
 
 V. Walford, 33 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, 057, 659, 671, 673 
 Sollee 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, 020. 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, - 049 
 Somerby v. Buntin, 118 Mass. 
 
 279, - - 26, 32, 1012, 1013 
 Somerset Potters' Works v. 
 
 Miuot, 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, - 808 
 
 V. Hay ward, 1 Cal. 345, 258, 277 
 
 894 
 
 43 
 
 650 
 
 386 
 
 Soules V. Burton, 36 Vt. 652, 761, 
 
 762, 1138 
 
 South Boston Iron Co. v. 
 Holmes, 4 Cliff. 313, - - 825 
 
 South Canadian Bank v. Case, 
 8 B. & C. 427, - . 444, 445 
 
 South Wales Atlantic Steam- 
 ship Co., Re, 2 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, McMull. (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 Vfc. 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. Wilsou, 80 Ky. 589, 281, 290 
 
 453, 823 
 Sparhawk v. Drexel, 12 Baukr. 
 
 Reg. 450, - ... 195 
 
 V, Russell, 10 Met. 305, 826, 828 
 
 Sparman v. Keim, 83 N. Y. 245, 144 
 Sparrow v. Chisman, 9 B. & C. 
 
 241, .... 393, 1035 
 
 V. Kohn, 109 Pa. St. 359, 198 
 
 Spaulding v. Holmes, 25 Vt. 
 
 491, - . . - - 904 
 V. Ludlow Woolen Mill, 
 
 30 Vt. 150, - - 389, 621, 623 
 
 V. Smith, 10 Me. 303, - 1168 
 
 Spaunhorst v. Link, 40 Uo. 197, 347, 
 
 503, 585 
 Speak V. Kinscy, 17 Tex. 301, 1125 
 Speake v. Barrett, 13 La. Ann. 
 
 479, 623 
 
 V. Prewitt, 6 Tex. 252, 150, 152, 
 
 1019, 1022 
 
 clxiv
 
 Spe.] 
 
 TABLE OF CASES. 
 
 [Sta. 
 
 Speake v. White, 14 Tex. 304, 700 
 Spear v. Gillet, 1 Dev. (N. Ca.) 
 
 Eq. 4G6, .... 420 
 V. Newell, 2 Paine, C. C. 
 
 2G7, 899 
 
 V. Newell, 13 Vt. 388, 849, 91-1 
 
 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, 628 
 
 Speis;hts V.Peters, 9 Gill (Md.), 
 
 472, - - - 997, 998, 1002 
 Spence v. Whitaker, 3 Porter 
 
 (Ala.), 297, - - - 187, 777 
 Spenceley v. Greenwood, 1 F. 
 
 & F. 297, .... 
 Spencer v. Billing, 16 Oh. St. 
 
 75, 
 
 Sperry, Ex parte, 1 Ashm. 347, 
 Spiers v. Houston, 4 Bligh, N. 
 
 R. 515, - - - - 650, 656 
 Spiess V. Rosswogg, 16 Jones 
 
 &Sp. 135; 63 How. Pr. 401, 
 Spiro V. Paxton, 3 Lea (Tenn.), 
 
 75 (31 Am. Dec. 630), - 
 Sprague, Ex parte, 4 DeG. M. 
 
 & J. 866, .... 
 
 V. Ainsworth, 40 Vt. 47, 
 
 526 
 
 107 
 832 
 
 305 
 
 - 1131 
 
 541 
 444, 
 448, 451 
 
 V. Zunts, 18 Ala. 382, - 356 
 
 Sprague Mfg. Co. v. Hoyt, 29 
 
 Fed. Rep. 421, - - - 294 
 Sprawles v. Barnes, 1 Sm. & 
 
 Mar. (iMiss.) 629, - - 725, 1029 
 Spring V. Gray, 6 Pet. 151, - 943 
 Spring Valley Water Works v. 
 
 Schottler, 63 Cal. 69, 118, - 661 
 Springer v. Cabell, 10 Mo. 640, 302, 
 
 851, 856 
 
 V. Shirley, 11 Me. 204, - 528 
 
 Sprout V. Crowley, 30 Wis. 
 
 187, - - 28, 852, 874, 876 
 
 Spruhen v. Stout, 52 Wis. 517, 437 
 Spnrck v. Iieonard, 9 111. App. 
 
 174, - - 615, 624, 626, 694 
 
 cl 
 
 Spurr V. Cass, L. R. 5 Q. B. 
 
 656, - - - 1019, 1023 
 
 V. Russell, 59 N. H. 338, 557, 558 
 
 Squires v. Anderson,' 54 Mo. 
 
 103, 229 
 
 Staats V. Bristow, 73 N. Y. 264, 180, 
 
 186, 291, 1099, 1102, 1111, 1112, 1117, 
 
 1122 
 
 V. Howlett, 4 Den. 559, 197, 073 
 
 Stables v. Eley, 1 C. «&; P. 614, 102. 
 
 463, 470 
 Stacey v. Decy, 2 Esp. 469, n. 
 
 (s. c. as Stracey v. Deey, 7 T. 
 
 R. 361, n. c), - - - - 1083 
 Stadler v. Allen, 44 Iowa, 198, 291 
 Stafford v. Gold, 9 Pick. 533, 722 
 Stafford Bank v. Palmer, 47 
 
 Conn. 443, - - - - 4, 7 
 Stahl V. Stahl, 2 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. 234, 607, 613 
 V. Catskill Bk. 18 Wend. 
 
 466 (affirms Catskill Bk.'v. 
 
 Stall, 15 id. 364), 349, 852, 358, 1153 
 Stallings v. Corbett, 2 Spears 
 
 (S. Ca.), L. G13, - - - 763 
 Stanberry v. Cattell, 55 Iowa, 
 
 617, 
 
 r35 
 
 Standbridge v. Catanach, 83 
 
 Pa. St. 368, - - - - 1170 
 Stanford v. Lockwood, 95 N. 
 
 Y. 5S2, 5S8, - - - - 733 
 Stanhope v. Suplee, 2 Brewst. 
 
 (Pa.) 453, - - 718,741,1000 
 Stannary v. Smith, 40 Vt. 513, 64 
 Stanton v. Buckner, 24 La. 
 
 Ann. 391, - ... 856 
 
 V. Lewis, 20 Conn. 444, 686, 687 
 
 V. Westover (N. Y. 188(3), 
 
 4 N. E. Rep. 529. - 551, 560, 563 
 
 XV
 
 Sta.] 
 
 TABLE OF CASES. 
 
 [Ste. 
 
 Stauwood V. Owen, 14 Gray, 
 
 195, - - - 598, GOl, 602 
 Staples V. Sprague, 75 Me. 458, 32, 
 
 432 
 Stapleton v. King, 33 Iowa, 28 
 
 (11 Am. Rep. 109), - - . G2 
 Star AVagon Co. v. Swezey, 52 
 
 Iowa, 394 ; 59 id. 609, - 399, 090, 
 
 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, 2G9, 
 
 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, . 1 ... 43 
 
 V. Gerhardt, 3 Jones (N. 
 
 Ca.), L. 178, - - - 178, 269 
 
 V. How, 1 Mich. 512, - 4 
 
 V. Linaweaver, 3 Head, 
 
 61, 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, .... 5G0, 1133 
 
 V. Wiggin, 20 N. H. 449, - 100, 
 
 1150 
 
 . V. Williams, 103 Ind. 235, 488 
 
 V. Woods, 36 Mo. 73, - 734 
 
 State ex rel. v. Bowden, 18 Fla. 
 17, 1131 
 
 V. Donegan, 12 Mo. App. 
 
 190 (affd. 83 Mo. 374), - 734, 736 
 V. Emmons, 99 Ind. 452, - 1181 
 
 V. Finn, 11 Mo. App. 546, 257, 
 
 260, 1110 
 
 V. Merritt, 70 Mo. 275, - 1019 
 
 V. Spencer, 64 Mo. 355 (27 
 
 Am. Rep. 244), - - - 1131 
 State F. Ins. Co., Mei-edith's 
 
 Case, 1 B. & P. New Rep. 
 
 510, 323 
 
 Stauffer, Succession of, 21 La. 
 
 Ann. 520, .... 1131 
 Stead V. Salt, 3 Bing. 101 ; 10 
 
 Moore, 389, - - - 336, 381 
 Stead well v. Morris, 61 Ga. 97, 959, 
 
 963 
 Steamboat Orleans v. Phoebus, 
 
 11 Pet. 175, ... - 908 
 Stearns v. Burnham, 4 Me. 84, 365 
 
 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. 23, - - - - 326, 381 
 v. Grossmith, 19 Grant's 
 
 Ch. (Up. Can.) 141, - - 996 
 V. Jennings, 1 McMull. 
 
 (S. Ca.) 297, - - - - 703 
 V. Stuart, L. R. 2 Eq. 
 
 84, 395 
 
 Stegall V. Coney, 49 Miss. 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. 412, 338, 
 
 839, 340 
 
 V. Robertson, 80 Ala. 286, 86, 
 
 143, 181 
 Steinhart v. Fyhrie, 5 Mon- 
 tana, 463, ... 338, 339 
 Stephens v. Orman, 10 Fla. 9, 216, 
 
 309, 794, 961 
 
 V. Parkhurst, 10 Iowa, 70, 1091 
 
 V. Reynolds, 5 H. & N. 
 
 513; IF. &F. 739; 2 id. 147, 341, 
 
 443 
 
 V. Thompson, 28 Vt. 77, 523, 
 
 524 
 Stephenson v. Chiswell, 3Ves. 
 
 566, 748 
 
 V. Jackson, 9 Bankr. Reg. 
 
 378; 2 Hughes, 204, 
 
 841 
 
 Sterling v, Brightbill, 5 Watts, 
 
 229 (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. 
 
 893, 497 
 
 Sterne v. Bentley, 3 How. Pr. 
 
 331, 380 
 
 Stettauer v. Carney, 20 Kan. 
 
 474, 42 
 
 Stettheiraer v. Killip, 75 N. Y. 
 
 282, 958 
 
 Steuben Co. Bank v. Alburger 
 
 (N. Y. 1880), 4 N. E. Rep. 
 
 341, .... 351, 364 
 Stevpns, Re, 5 Bankr. Reg. 
 
 112; 1 Sawy. 397, - - - 828 
 V. Bank of Central N. Y. , 
 
 81 Barb. 290, - - - 1099 
 V. Penning, 1 K. & J. 
 
 168 ; 6 DeG. M. & G. 223, - 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, 
 
 62 Tex. 499, - - - - 17 
 
 V. Lunt, 19 Me. 70, - - 1079 
 
 V. Perry, 113 Mass. 380, - 847, 
 
 1118 
 
 V. Rollins, 34 Me. 226, - 722, 
 
 724 
 
 V. South Devon R'y Co. 9 
 
 Hare, 313, .... 43.' 
 V. Stevens, 39 Conn. 474, HOD 
 
 V. West, 1 How. (Miss.) 
 
 308, ... - 453a, 841 
 
 V. Yeatman, 19 Md, 480, - 980 
 
 Stevenson v. Brown, 9 L. J. 
 
 Chy. (Up. Can.) 110, - . 338 
 
 V. Farnsworth, 7 111. 715, . 1071 
 
 V. McLean, 11 Up. Can. 
 
 C. P. 208, .... 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, . - 552 
 V. Woodhull, 19 Fed. Rep. 
 
 575, - - . . 381, 543 
 
 Steuart v. Gladstone, 10 Ch. D. 
 
 626, .... 241, 661 
 Steward v. Blakeway, L. R. 4 
 
 Ch. 603, .... 257, 287 
 Stewart's Appeal, 105 Pa. St. 
 
 307, .... 703,719 
 Stewart, Assignment of, 63 
 
 Iowa, 614, - - - - 566 
 
 , Re, 13 Bankr. Reg. 295, - 1131 
 
 V. Bedell, 79 Pa. St. 336, - 676 
 
 V. Behm, 2 Watts, 356, . 423 
 
 V. Brown, 87 N. Y. 350, - 1131 
 
 V. Burkhalter, 28 Miss. 
 
 396, .... 742, 925 
 V. Caldwell, 9 La. Ann. 
 
 419, 867, 626 
 
 V. Challacombe, 11 111. 
 
 App. 379, .... 676 
 
 V. Erie &, Western Transp. 
 
 Co. 17 Minn. 372, - - . 1028 
 
 clxvii
 
 Ste.] 
 
 TABLE OF CASES. 
 
 [Sto. 
 
 Stewart v. Forbes, 1 Hall & Tw. 
 
 461 ; 1 Macn. & G. 137, - 181, 215 
 
 V. nuuter, 1 Handy, 23, 1105, 
 
 1109 
 V. Kerr, 1 Morr. (Iowa) 
 
 240, 899 
 
 V. Levy, 36 Cal. 159, 464, 4G8, 
 
 480 
 V. Mcintosh, 4 Har. & J. 
 
 233, - - 114, 119, 128, 425 
 V. Parker, 18 New Bruns- 
 wick, 223, - - - 349, 3G1 
 
 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. Stebbins, 30 Miss. 66, - 549, 
 
 789 
 Stickney v. Smith, 5 Minn. 
 
 486, 191 
 
 Stidger v. Reynolds, 10 Oh. 
 
 351, - - 252, 763, 770, 771 
 Stiles V. 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. L 452, 927 
 Stilling V. Heintzman, 42 
 
 Midi. 449, - - - - 1060 
 Stirnermaun v. Cowing, 7 
 
 Johns. Ch. 275, - - - 707 
 Stitt V. Cass, 4 Barb. 92, - - 387 
 Stix V. Mathe%v8, 63 Mo. 371, 1068 
 Stoalliugs V. Baker, 15 Mo. 481, 61 
 Stockdale v. Keyes, 79 Pa. St. 
 
 251, 393 
 
 V. Ullery, 37 Pa. St. 486, 988 
 
 Stocken v. Davison, 6 Beav. 
 
 371, 
 
 V. Dawson, 9 Beav, 239, 
 
 and on app, 17 L. J. Ch. 282, 
 Stocker v. Brockelbauk, 3 
 
 Mac. & G. 250, 
 
 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. 
 
 286, 176 
 
 V. Dillingham, 50 Me. 442, 348, 
 
 406, 450 
 V. United States. 13 Wall. 
 
 531 (aff. 3 Cliff. 284), - - 468 
 Stoddard v. Smith, 11 Oh. St. 
 
 581, .... 483, 486 
 
 V. Wood, 9 Gray, 90, - 629 
 
 Stoildart v. Key, 62 How. Pr. 
 
 137, 198 
 
 V. McMahan, 35 Tex. 367, 1143, 
 
 1154 
 
 V. Van Dyke, 13 Cal. 437, 1094 
 
 Stokes V. Hodges, 11 Rich. Eq. 
 
 138, 781 
 
 Stone, Ex parte, L. R. 8 Ch. 
 
 App. 914, - 200, 453, 453a, 841 
 
 V. Boone, 24 Kan. 337, - 894 
 
 V. Chamberlin, 20 Ga. 259, 534 
 
 V. Dennis, 3 Porter (Ala.), 
 
 231, - - - 870,871,873 
 
 V. Fouse, 3 Cal. 293, 873, 890 
 
 V. Manning, 3 111. 530, - 108 
 
 V. Marsh, Ry. & Moody, 
 
 3G4 ; 6 B. & C. 551 ; 8 Dow. & 
 
 Ryl. 71, 
 
 V. South Carolina, 117 U. 
 
 S. 430, 
 
 V. Wendover, 3 Mo. App. 
 
 247, 
 
 474 
 
 1058 
 
 889 
 
 848 
 
 Stoney V. Shultz, 1 Hill(S. Ca.), 
 
 Ch. 465, - - - - - 
 
 Storer v. Hinkley, Kirby 
 
 (Conn.), 147, - - 341, 747, 750 
 Storm V. Cumberland, 18 
 Grant's Ch. (Up. Can.) 245, - 183, 
 
 949 
 
 V. Roberts, 54 Iowa, 677, - 1063 
 
 Story V. Moon, 3 Dana, 331, - 764, 
 
 765, 973 
 Stothert v. Knox, 5 Mo. 113, - 853, 
 
 856 
 
 clxviii
 
 Sto.] 
 
 TABLE OF CASES. 
 
 [Sun. 
 
 Stoughton V. Lynch, 1 Johns. 
 
 Ch. 467, - - 237, 789, 790, 791 
 
 V. Lynch, 2 Johns. Ch. 209, 787, 
 
 789, 790, 791, 798 
 
 V. State, 2 Oh. St. 562, - 488 
 
 Stout V. Baker, 32 Kan. 113. - 1064 
 
 V. Fortner, 7 Iowa, 183, - 1109 
 
 V. Hicks, 5 Blackf. 49, - 1070 
 
 V. Seabrook, 30 N. J. Eq. 
 
 187(affd. without op.' 32 id. 
 
 820), 952 
 
 V. Zulick (N. J.). 7 Atl. 
 
 Rep. 362, .... 4 
 
 Stoutenburgh v. Vandenburgh, 
 
 7 How. Pr. 229, - 377, 380, 1086 
 Stovc4d, Ex parte, 1 Glyn. & J. 
 
 303, 1003 
 
 Stowe V. Sewall, 3 Stew. & 
 
 For. (Ala.) 67, - - - 860 
 Stracey v. Deey, 7 T. R. 361, 
 
 n. c; S. C. as Stacey v. Decy, 
 
 2 Esp. 469, n., - - - 1083 
 Strader v. White, 2 Neb. 348, - 44 
 Straffin v. Newell, T. U. P. 
 
 Charlton, Ga. 163 (4 Am. 
 
 Dec. 705), .... 414 
 Strang v. Bradner, 114 U. S. 
 
 555 (aff. 89 N. Y. 299), - 472, 480 
 
 V. Hirst. 61 Me. 9, - 722, 733 
 
 Strange v. Graham, 56 Ala. 
 
 614, - - 685, 713, 719, 942 
 
 V. Lee, 3 East, 484, - 649, 656 
 
 Strangford v. Green, 2 Mod. 
 
 228, 336 
 
 Strathy v. Crooks, 3 Up. Can. 
 
 Q. B. 51, .... 716 
 Strattan v. Tabb, 8 111. App. 
 
 225, - - - 770, 830, 845 
 Straus V. Kerngood, 21 Gratt. 
 
 584, - 569, 825, 828, 832, 847 
 Strauss v. Frederick, 91 N. Ca. 
 
 121, .... 740, 824 
 
 V. Jones, 37 Tex. 313, - 445 
 
 V. Waldo, 25 Ga. 641, 192. 205. 
 
 439, 443 
 Strecker v. Conn, 90 Ind, 
 
 469, 612 
 
 Street v. Rigby, 6 Ves. 613, 
 
 618, 233 
 
 Stretch v. Talmadge, 65 Cal. 
 
 510, 957 
 
 Stroll V. Hinchman, 37 Mich. 
 
 490, .... 34G, 36S 
 Sti-oman v. Yarn, 19 S. Ca. 307, 292, 
 
 416, 417 
 Strong V. Baker, 25 Minn. 412, 449 
 
 V. Clawson, 10 III. 31G, - 927 
 
 V. Fish, 13 Vt. 277, 411, 412, 
 
 1044 
 
 V. Lord, 107 111. 25, 294, 297, 
 
 298, 976 
 
 V. Niles, 45 Conn. 52, - 454 
 
 V. Place, 51 N. Y. 627; 4 
 
 Robt. 385, - - - - 48, 78 
 Stroud V. Stroud, Phil. (N. Ca.) 
 
 L. 525, - - - 290, 294, 297 
 Struthers v. Chrystal, 3 Duly, 
 
 327, 987 
 
 V. Pearce, 51 N. Y. 357, - 305 
 
 Stuart V. Lord Bute, 12 Sim. 
 
 460, 314 
 
 V. McKithan, 74 111. 122, 978 
 
 Stultzraan v, Yeagley, 32 Up. 
 
 Can. Q. B. 630, - - - 881 
 Stumph V. Bauer, 76 Ind. 157, 257, 
 
 260, 1101, 1110 
 Stupart V. Arrowsmith, 3 Sra. 
 
 & G. 176, - - - 432, 958 
 Sturges V. Beach, 1 Conn. 507, 737, 
 
 750, 1160 
 
 V, Swift, 32 Miss. 239, 861, b80 
 
 Sullivan v. Murphy, 23 Minn. 
 
 6, 1154 
 
 V. Smith, 15 Neb. 476 (47 
 
 Am. Rep. 354), ... 340 
 
 V. Sullivan, 20 S. Ca. 79, - 7 
 
 Summey v. Patton, 1 Winst. 
 
 (N. Ca.) Eq. 52, - - 281, ^97 
 Sumner v. Powell, 2 Mer. 30 
 
 (affd. T. & R. 423), - . 239 
 v. Hampson, 8 Oh. 328 
 
 (32 Am. Dec. 722), - 285, 290 
 
 Sun Ins. Co. v, Kouutz Line, 
 
 122 U. S. 583, - - - 101 
 clxix
 
 SUR,] TABLE OF CASES 
 
 Surrogate Court, Re, 44 Up. 
 
 [Tam. 
 
 Can. Q. B. 207, - - - 743 
 Sutcliffe V. Dohrman, 18 Oh. 
 
 181 (51 Am. Dec. 450), - 1109, 1111 
 Sutlive V. Jones, Gl Ga. 676, - 184, 
 
 299, 41G 
 Sutro V. Wagner, 23 N. J. Eq. 
 
 388 (afra. 24 id. 589), - 591, 994 
 Sutton V. Dilluye, 3 Barb. 529, G93 
 
 V. Gregory, 2 Peake, 150, 841 
 
 V. Irwiue, 12 Serg. & R. 
 
 13, 349, 363 
 
 V. Mandeville, 1 Cranch, 
 
 C. C. 2, 979 
 
 Suydani v. Barber, 18 N. Y. 
 
 468 (rev. 6 Duer, 31), - 535, 537 
 V. Cannon, 1 Houst. (Del.) 
 
 431, - - - 531, 532, 535 
 
 Swails V. Coverdill, 17 lud. 
 
 337, 1024 
 
 Swallow, The Steamboat, 01- 
 
 cott, 334, - ... 67 
 
 V. Thomas, 15 Kan. 66, - 175, 
 
 176 
 Swan V. Scott, 23 Up. Can. Q. 
 
 B. 434, 110 
 
 V. Stedman, 4 Met. 548, - 334, 
 
 416, 698 
 
 V.Steele, 7 East, 210; 3 
 
 Smith, 199, - - 107, 196, 341 
 Swann v. Sanborn, 4 Woods, 
 
 C. C. 625, - - - 47, 95, 105 
 Swasey v. An tram, 24 Oh. St. 
 
 87 (13 Am. Law Reg. (N. S.) 
 
 577), 138 
 
 Swearingen v. Bassett, 65 Tex. 
 
 2G7, .... 1131, 1133 
 Sweeney v. Neely, 53 Mich. 
 
 421, .... 766, 786 
 
 V. Stanford, 67 Cal. 635, - 129 
 
 Sweet V. Bradley, 24 Barb. 
 
 549, .... 402, 472 
 
 V. Ervin, 54 Iowa, 101, - 1061 
 
 V. McCounel. 2 Neb. 1, - 629 
 
 V. Morrison, 103 N. Y. 235, 315, 
 
 383, 89a 
 V. Read, 12 R. L 121, - 1103 
 
 I Sweet V. Taylor, 36 Hun, 256, - 716 
 Sweetser v. French, 2 Cush. 
 
 309 (48 Am. Dec. 666), 343, 363, 
 
 367 
 Sweetzer v. Mead, 5 Mich. 107, 407, 
 
 416, 413 
 Swinney v. Burnside, 17 Ark. 
 
 38, 10G8 
 
 Swire v. Redman, 1 Q. B. D. 
 
 536, - - - 537, 533, 709 
 Switzer v. Smith, 35 Iowa, 269, 1114, 
 
 1115 
 Syers v. Syers, L. R. 1 App. 
 
 Cas. 174, - - 257, 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, - 1052 
 
 T. 
 
 Tabb V. Gist, 1 Brock. 33, - 161, 
 
 429 
 
 V. Gist, 6 Call (Va.), 279, 434, 
 
 435 
 Taber v. Cannon, 8 Met. 456, - 441 
 Tnft V. Buffum, 14 Pick. 322, 585 
 
 V. Schwamb, 80 111. 289, 181, 
 
 182, 231, 256, 815 
 
 V. Ward, 106 Mass. 518, 73, 73, 
 
 74 
 
 V. Warde, 111 Mass. 518, 73, 7i 
 
 Taggart v. Phelps, 10 Vt. 318, 416, 
 
 506 
 Taitt, Ex parte, 16 Ves. 193, - 825 
 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 
 Tall mad ge v. Penoyer, 35 
 
 Barb. 130, - - - - 481 
 Tams V. Hitner, 9 Pa. St. 441, 107 
 clxx
 
 Tap.] 
 
 TABLE OF CASES. 
 
 [Tay. 
 
 Tapley v. Butterfield, 1 Met. 
 515 (35 Am. Dec. 374), - 384, 403, 
 
 406, 407, 418 
 Tappan v. Blaisdell, 5 N. H. 
 
 190, .... 189, 1114 
 
 V. Kimball, 30 N. H. 136, 704, 
 
 705 
 
 V. Redfield, 1 Halst. Ch. 
 
 (N. J.) 339, - - - - 416 
 Tarbel v. Bradley, 7 Abb. New 
 Cas. 273, 184, 180, 385, 290. 291, 
 
 407, 823 
 Tavbell 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. Dec. 65), - 700 
 
 V. Churcli, 6 Watts & S. 
 
 465 (40 Am. Dec. 575). - - 900 
 Tatara v. Williams, 3 Hare, 
 
 347, 158 
 
 Tate V. Mutual F. Ins. Co. 13 
 
 Gray, 79, - - - - 272 
 
 V. Tate, 35 Ark. 289, 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, - 33 
 Tayloe v. Bush, 75 Ala. 433, 17, 43, 59 
 Taylor, Ex parte, 8 De G. M. & 
 G. 254; 25 L. J. Bkr. 35; 3 
 Jur. N. S. 320, - - - 144 
 
 , Ex parte, 3 Rose, 175, - 845 
 
 V. Bemis, 4 Biss. 406, - 657 
 
 V. Bothin, 5 Sawy. 584 
 
 (8 Reporter, 516), - - - 675 
 
 V. Castle, 43 Cal. 367, 163, 585 
 
 V. Cawthorne, 2 Dev. Eq. 
 
 221, 987 
 
 V. Church, 1 E. D. Smith, 
 
 279; 8N. Y. 453, - - - 1033 
 
 Taylor v. Coffing, 18 111. 422, - 813, 
 
 814 
 V. Coryell, 13 Serg. & R. 
 
 243, ... - 336, 416 
 V. Davis, cited in note to 
 
 Whittaker v. Howe, 3 Beav. 
 
 383, 388, .... 314 
 V. Farmer (111. 188G), 4 N. 
 
 E. Rep. 370, - 290, 452, 821, 822 
 V. Fields, 4 Ves. 396 (ex- 
 
 plained in 15 id. 559, n.), 845, 1111 
 
 — V. Gilleau, 23 Tex. 508, - 100(5 
 
 — V. Hare, 1 B. & P. N. R. 
 
 260, 809 
 
 — V. Haylin, 2 Bro. C. C. 310, 962 
 
 — V. Heudersou, 17 S. & R. 
 
 453, .... 1093, 1169 
 
 — V. Herring, 10 Bosw. 447, 979 
 
 — V. Hill, 36 Md. 494, 323, 380, 6 13 
 
 — V. Hillyer, 3 Bluckf. 433 
 
 (26 Am. Dec. 430), 847, 365, 647, 
 
 694, 701 
 
 — V. Holman, 1 Mill (S. Ca.), 
 
 173, 889 
 
 — V. Hutchison, 25 Gratt. 
 
 536 (18 Am. Rep. 699), - 582, 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.), 
 
 241, - - - 942,948,952 
 
 V. Penny, 5 La. Ann. 7, - 158 
 
 V. Post, 30 Hun, 446, - 500 
 
 V. Rundell, 1 Ph. 222 (aff'g 
 
 1 Y. & C. C. C. 128), - 
 — V. Stbt. Robt. Campbell, 
 
 314 
 1020 
 
 20 Mo. 254, . - - 
 
 V. Shaw, 2 Sm. & Stu. 12, 958 
 
 V. Smith, 3 Cranch, C. C. 
 
 241, 854 
 
 V. Sotolingo, 6 La. Ann. 
 
 154, 43 
 
 clxxi
 
 Tay.] 
 
 TABLE OF CASES. 
 
 [Tna 
 
 Taylor v. Taylor, 28 L. T. 189, 912 
 V. Taylor, 3 Murph. (N. 
 
 Ca.)TO. 181 
 
 V. Tonne, 3 Har. & J. 505, 44 
 
 V. Webster, 39 N. J. L. 
 
 102, ... - 317, 1155 
 
 V. Wilson, 58 N. H. 465, - 105 
 
 V. Young, 3 Watts, 339, - 400, 
 
 620 
 
 V. Young. 2 Bush, 438, 780, 788 
 
 Teague v. Hubbard, 8 B. & C. 
 
 315, 882 
 
 Tebbetts v. Dearborn, 74 Me. 
 
 392, 791 
 
 Teed v. Ehvorthy, 14 East, 210, 148 
 Tell V. Beyer, 38 N. Y. 161, 162, 275 
 Temple v. Seaver, 11 Cush. 
 
 314, - - - 691, 882, 884 
 Tench v. Roberts, 6 Madd. 145, 110 
 Tennant, Ex parte, G Ch. D. 
 
 303, 21, 47 
 
 Teuney v. Foote, 95 111. 99, 112, 128 
 
 V. Johnson, 43 N. H. 144, 562, 
 
 563, 824, 1114, 1115 
 V. New Engl. Protec. 
 
 Union, 37 Vt. 64, - 72, 76, 580 
 Terrell, Ex parte. Buck, 345, - 845 
 
 V. Goddard, 18 Ga. 664, - 997 
 
 V. Hurst, 70 Ala. 588, 315, 346, 
 
 1131 
 
 V. Ingersoll, 10 Lea, 77, - 1008 
 
 Terrill v. Richards, 1 Nott & 
 
 McC. (S. Ca.) 20, - 870, 875, 876 
 Terry v. Berry, 13 Nev. 514, - 1131 
 
 V. Butler, 43 Barb. 395, - 825 
 
 V. Carter, 25 Miss. 168, - 873 
 
 V. Ragsdale, 33 Gratt. 342, 1171 
 
 Tesson, Re, 9 Bankr. Reg. 378, 841 
 Tevis V. Tevis, 24 Mo. 535, - 358 
 Texas Banking & Ins. Co. v. 
 
 Cohen, 47 Tex. 406 (26 Am. 
 
 Rep. 298), - - - - 272 
 Texas Ins. Co. v. Cohen, 47 
 
 Tex. 406, .... 273 
 Texas & St. Louis R'y Co. v. 
 
 McCaughey, 63 Tex. 271, - 1086, 
 
 1091 
 clx 
 
 Thacker v. Shepherd, 2 Chit. 
 
 652, 
 
 Thackray's Appeal, 75 Pa. St. 
 
 Tharp v. Marsh, 40 Miss. 158, - 
 Thayer v. Augustine, 55 Mich. 
 
 188 (40 Am. Rep. 465), - 
 V. Buffum, 11 Met. 398, - 
 
 1021 
 
 659 
 37 
 
 V. Smith, 116 Mass. 3C9, 
 
 V. Younge, 86 Ind. 259, 
 
 Theall v. Lacey, 5 La, Ann. 548, 
 Theilen v. Haun, 27 Kan. 778, 
 
 45 
 
 - 882, 
 
 884 
 
 - 453 
 676, 678 
 
 984 
 
 192, 
 
 443 
 
 908 
 
 Theller v. Such, 57 Cal. 447, 
 Theriot v. Michel, 28 La. Ann. 
 
 107, ... 70, 286, 587 
 Thibodaux v. Keller, 29 La. 
 
 Ann. 508, 509, - - - 176 
 Thick nesse v. Bromilow, 2 Cr. 
 
 & J. 425, - - 329, 342, 370 
 Thomas, Re, 17 Bankr. Reg. 
 
 54; 8 Biss. 139, 200, 453, 841, 842 
 
 V. Adams, 2 Porter, 196, 1079 
 
 V. Alherton, 10 Ch. D. 185, 761, 
 
 763 
 
 101 
 
 321, 
 
 1151 
 
 211, 
 
 213, 252, 544 
 
 V. Green, 30 Md. 1, - 
 
 V. Harding, 8 Me. 417, 
 
 V. Lines, 83 N. Ca. 191, 
 
 V. Lusk, 13 La. Ann. 319, 
 V. Miles, 3 Oh. St. 274, - 
 V. Minot, 10 Gray, 263, 
 
 1103 
 676 
 825, 
 835 
 1107 
 1149 
 383, 
 
 V. Mohler, 25 Md. 36, 
 
 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 
 
 xii
 
 Tuo.] 
 
 TABLE OF CASES. 
 
 [Tie. 
 
 Thomason v. Frere, 10 East, 
 
 418, - - 610, 750, 755, 1020 
 Thompson, Ex parte, 3 Deac. 
 
 & Ch. 012, - - - . 90G 
 V. Andrews, 1 Myl. & K. 
 
 116, 600 
 
 V. Briggs, 8 Foster (28 N. 
 
 n.), 40, 529 
 
 V. Bowman, 6 Wall. 316, 279, 
 
 280, 299, 587, 700 
 V. Brown, 1 Mood. & Malk. 
 
 40, 494 
 
 V. Brown, 4 Johns. Ch. 
 
 619, ... - 604, 727 
 
 V. Egbert, 3 N. Y. Su- 
 preme Ct. 474, ... 301 
 
 V. Emmert, 15 111. 415, 380, 535 
 
 V. Franks, 37 Pa. St. 327, 1164 
 
 V. First Nat'lB'k, 111 U. 
 
 S. 529, - - - - 91, 92, 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. 
 
 925; 3 Nev. & M. 167, - 505, 519, 
 
 520, 523, 524, 528, 529 
 
 V. Rogers, 69 N. Ca. 357, 731, 
 
 763 
 V. Eyan, 3 Swanst. 565, - 269 
 
 V. Snow, 4 Me. 264 (16 
 
 Am. Dec. 263), ... 45 
 
 V. Spittle, 102 Mass. 207, - 183 
 
 V. Springall, 3 C. B. 540, - 886 
 
 V. Stbt. Julius D. Mor- 
 ton, 3 Oh. St. 26 (59 Am. 
 Dec. 658), .... 882 
 
 V. Tinnin, 25 Tex. Sup. 56, 1109 
 
 V. Williamson, 7 Bligh, 
 
 N. R. 432, .... 181 
 
 V. Waithman, 3 Drew. 
 
 628, 706 
 
 Thomson's Estate, 12 Phila. 36. 73 
 Thomson v. Thomson, 1 Bradf. 
 (N. Y.) 24, - - - - 714 
 
 Thorn v. Smith, 21 Wend. 365, 443, 
 
 701, 1153, 1153 
 Thorndike v. DeWolf, 6 Pick. 
 
 120, 70 
 
 Tliornton, Ex parte, 5 Jur.N. S. 
 
 213, 842 
 
 V. Bussey, 27 Ga. 302, 454, 825, 
 
 847 
 V. Dixon, 8 Brown's Ch. 
 
 Cas. 199, .... 974 
 
 V. Kerr, 6 Ala. 833, - - 1151 
 
 V. McNeill, 23 Miss. 
 
 369, ... . - - 962 
 
 V. Proctor, 1 Anstr. 94, - 7G6, 
 
 770, 780 
 Thorpe v. Jackson, 2 Y. & C. 
 
 Ex. 553, .... 748 
 
 Thrall v. Crampton, 9 Ben. 
 
 218; 16 Baukr. Reg. 361, 290, 822 
 
 V. Seward, 37 Vt. 573, - 211, 
 
 681, 1025, 1171 
 V. Waller, 13 Vt. 231 (37 
 
 Am. Dec. 593), - - - 860 
 Thurber v. Corbin, 51 Barb. 
 
 215 (S. C. as Thurber v, Jen- 
 
 kins, 36 How. Pr. 66), - 534, 5c8 
 V. Jenkins, 36 How. Pr. 
 
 66 (S. c. as Thurber v. Cor- 
 bin, 51 Barb. 315), - 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, 86, 611 
 
 Thwaites v. Richardson, 1 
 
 Peake, 23 [16J, - - - 331 
 Thwing V. Cliflford, 136 Mass. 
 
 483, .... 60, 473 
 
 Tibbetts v. Magruder, 9 Dana, 
 
 79, 878 
 
 Tidd V. Rines, 36 Minn. 201 ; 10 
 
 Cent. L. J. 102, - - .296 
 Tiemann v. MoUiter, 71 Mo. 
 
 513, .... 737, 733 
 Tiernan v. Doran, 19 Neb. 492, 267, 
 
 1061 
 clxxiii
 
 Tip. J 
 
 TABLE OF CASES. 
 
 [Tou. 
 
 Tiffany v. Crawford, 14 N. J. 
 
 Eq. 278, .... 848 
 
 TifielJ V. Adams, 3 Iowa, 487, 507 
 Tilford V. Ramsey, 37 Mo. 563, 199, 
 
 202, 324, 341 
 Till's Case, 3 Neb. 261, - - 1131 
 Tillier v. Whitehead, 1 Dall. 
 
 269. . - - . 322, 334 
 Tillinghast v. Champliu, 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. Dever, 52 Mich. 
 
 34 (50 Am. Rep. 240), - - 676 
 Tiudal V. Bright, 1 Minor (Ala.), 
 
 103, 900 
 
 Tiner v. Christian, 27 Ark. 300, 908 
 Tiukum v. O'Neale, 5 Nev. 93, 454, 
 
 535, 1049, 1055 
 Tipton V. Vance, 4 Ala. 194, - 884 
 Tirrell v. Jones, 39 Cal. 655, - 781 
 Tissard v. Warcup, 2 Modern, 
 
 279, 746 
 
 Titus V. Follet, 2 Hill, 318, - 1031 
 
 V. Todd, 25 N. J. Eq. 458, 523, 
 
 529 
 Tobey v. McFarlin, 115 Mass. 
 
 98, ... 180, 1103, 1113 
 
 Tobias v. Blin, 21 Vt. 544, - 45, 59 
 Todd V. Clapp, 118 Mass. 495, - 136, 
 
 145 
 
 V. Daniel, 16 Pet. 521, - 1057 
 
 V. Jackson, 75 Ind. 272 s. C. 
 
 aa 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 
 
 Tolford V. Tolford, 44 Wis. 
 
 547, 863 
 
 Tolman v. Hanrahan, 44 Wis. 
 
 133, 441 
 
 Tom V. Goodrich, 2 Johns. 213, 438, 
 
 451 
 Tombeckbee Bk. v. Dumell, 5 
 
 Mason, 56, .... 694 
 Tomes, Re, 19 Bankr. Reg. 36, 105, 
 
 547, 562 
 Tomlin v. Lawrence, 3 Moo. & 
 
 P. 555, .... 199, 381 
 Tomlinson v. Hammond, 8 
 
 Iowa, 40, - - - 632, 644 
 
 V. Nelson, 49 Wis. 679, - 850, 
 
 852 
 
 V. Ward, 3 Conn. 396, 761, 767 
 
 Tompkins v. Tompkins, 18 S. 
 
 Ca. 1, - - - - 711, 730 
 V. Woodyard, 5 W. Va. 
 
 216, - - - . 349, 362 
 
 Tone V. Goodrich, 2 Johns. 213, 746 
 Tonne, Re, 13 Bankr. Reg. 170,. 1131 
 Toof V. Duncan, 45 Miss. 48, - 317, 
 
 477 
 Toombs V. Hill, 28 Ga. 371, 825, 828 
 Topliff V. Jackson, 13 Gray, 
 
 565, - - - 641,978,979 
 V. Vail, 1 Harr. Ch. (Mich.) 
 
 340, 552 
 
 Topping, Ex parte, 4 De G. J. 
 
 & S. 551, - - - 844, 846 
 
 V. Paddock, 92 111. 92, 251, 785 
 
 Torrens v. Campbell, 74 Pa. St. 
 
 470, - 503, 504, 510, 513, 514 
 Torrent v. Yager, 52 Mich. 506, 177 
 Torrey v. Baker, 13 Vt. 452, 526, 692 
 
 V. Baxter, 13 Vt. 452, 408, 694 
 
 V. Twombley, 57 How. Pr. 
 
 149, 853 
 
 Totty V. Donald, 4 Uuut (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. 
 
 [Tuc. 
 
 Towle V. Meserve, 33 N. H. 9, 849, 
 
 856 
 V. Pierce, 12 Met. 329 (46 
 
 Am. Dec. 679), - 907, 933, 936 
 Town V. Hendee, 27 Vt. 238, - 101 
 
 V. Washburn, 14 Minn. 26^, 706, 
 
 1094 
 Towne v. Leach, 32 Vt. 747, - 1103 
 Townend v. Towneod, 1 Giff. 
 
 201, 800 
 
 Towner v. Lane, 9 Leigh (Va.), 
 
 262, - - - - - 181 
 
 Townes v. Birchett, 12 Leigh, 
 
 173, 1055 
 
 Townsend v. Goewey, 19 
 
 Wend. 424, - - - 874, 876 
 
 V. Long. 77 Pa. St. 143, - 647 
 
 V. Neale, 2 Camp. 189, - 1019 
 
 Townsends v. Stevenson, 4 
 
 Rich.(S. Ca.)L. 59, - - 528 
 Tozier v. Crafts, 123 Mass. 480, 1153 
 Tracy v. McManus, 58 N. Y. 
 
 257, 1150 
 
 V, Walker, 1 Flip. 41 ; 3 
 
 West. Law Month. 574, 541, 555. 
 
 560, 755, 952 
 Tradesmen's Bank v. Astor, 11 
 
 Wend. 87, 90, - - - 322 
 Trafford v. Hubbard, 15 R. I, 1105, 
 
 1107 
 Trafton v. United States, 3 
 
 Story, C. C. 646, - - - 537 
 Trammell v. Harrell, 4 Ark. 
 
 602, - - - - 718, 723 
 Trann v. Gorman, 9 Porter, 
 
 456, 1081 
 
 Trapliageu v. Burt, 67 N. Y. 
 
 30. 303, 913 
 
 Travers v. Dyer, 16 Blatchf. 
 
 178, 899 
 
 Travis v. Milne, 9 Hare, 141, - 483, 
 
 926 
 
 V. Tartt, 8 Ala. 574, 456, 1125 
 
 Treadway v. Ryan, 3 Kan. 437, 858, 
 
 860, 894 
 Treadwell v. Brown, 41 N. H. 
 
 12, - - - - 825, 928, 1113 
 
 Treadwell v. Brown, 43 N. H. 
 
 290, .... 1106, 1113 
 
 V. Wells, 4 Cal. 260, 617, 622. 
 
 624 
 
 V. Williams, 9 Bosw. 649, 186, 
 
 291 
 Tredwell v. Rascoe, 3 Dev. (N. 
 
 Ca.) L. 50, - - - 1105, 1111 
 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, 12 PhiJa. 
 
 366. - - - . 377, 379 
 Trickett v. Moore, 34 Kan. 755, 110:5 
 Trimble v. Coons, 2 A. K. Mar. 
 
 (Ky.) 375, - - - 414, 416 
 Tripp V. Williams, 14 S. Ca. 
 
 502, .... 701, 1151 
 
 Troughton v. Hunter, 18 Beav. 
 
 470, 
 
 610, 07 
 
 M 
 
 Troup's Case, 29 Beav. 143, - 785 
 Trowbridge v. Cross, 117 111. 
 
 109, - - - 180, 290, 1131 
 
 V. Cushman, 24 Pick. 310, 453. 
 
 1099, 1114' 
 
 V. Scudder, 11 Cush. 83, 4, 7- 
 
 Troy Iron & Nail Factory v. 
 
 Winslow, 11 Blatchf. 513, 750, 1055' 
 True V. Congdon, 44 N. H. 48, 1072- 
 Truesdell v. Baker, 2 Rich. (S. 
 
 Ca.)L. 351, - - - - 575 
 Truitt V. Baird, 12 Kan. 420, - 876' 
 Trull V. Trull, 13 Allen, 407, - 483 
 TruUinger v. Corcoran, 8H Pa. 
 
 St. 395, 351 
 
 Trumlin v. Goldsmith, 40 Ga. 
 
 221, 1147 
 
 Trump V. Baltzell, 3 Md. 295, 629, 
 
 632, 775 
 
 Tucker v. Adams, 03 N. H. 361, 114. 
 
 116, 129, 1105,110(5 
 
 V. Bradley, 33 Vt. 324, 390, 484 
 
 clxxv
 
 Tuc] 
 
 TABLE OF CASES. 
 
 [Uhl. 
 
 Tucker v. Cole, 54 Wis. 539, ,889, 642 
 
 V. Oxley, 5 Cranch, 34 
 
 (rev. 1 Cr. C. C. 419), - - 1081 
 
 V. Peaslee, 36 N. H. 167, 15G, 
 
 157, 439, 445, 446, 449, 852, 978 
 Tuckeiman v. Newhall, 17 
 
 Mass. 581, - - - - 385 
 Tudor V. White, 27 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. 135, 258 
 
 Turbeville v. Ryan, 1 Humph. 
 
 113, 129 (34 Aro. Dec. 622), - 416 
 Turk V. Nicholson, 30 Iowa, 
 
 407, 1081 
 
 Turnbow v. Broach, 12 Bush, 
 
 455, - - - 523, 526, 694 
 Turner, Ex parte, 4 D. «& C. 
 
 169 ; 1 Mont. & A. 54, - - 838 
 V. Bayley, 34 Beav. 105 
 
 (affg. s. c. as Turney v. Bay- 
 ley, 4 D. J. & S. 332), - 314, 922 
 
 V. Bissell, 14 Pick. 192, 16, 39, 
 
 43, 59, 1094 
 V. Burkinshaw, L. R. 2 
 
 Ch. App. 488, - - - 786 
 V. Evans, 2 E. & B. 512 (2 
 
 D. M. G. 740), - - - 677 
 V. Jaycox, 40 N. Y. 470 
 
 (explained in Berkshire Wool 
 
 Co. V. Juillard, § 452), 452, 453, 504, 
 
 564 
 
 V. McIIhany, 8 Cal. 575, - 1155, 
 
 1158 
 
 V. Mayor, 8 Giff. 442, 660, 794 
 
 V. Otis, 80 Kan. 1, - 788, 9(54 
 
 V. Reyuell, 14 C. B. N. S. 
 
 328, 110 
 
 V. Ross, 1 R. I. 88, - 703, 705 
 
 V. Smith, 1 Abb. Pr. N. S. 
 
 304, 1109 
 
 Turney, Ex parte, 3 M. D. & 
 D. 576, 843 
 
 V. Bayley, 4 De G. J. & 
 
 Sm. 332, - - - 314, 922, 
 Turnipseed v. Goodwin, 9 Ala. 
 
 372, - 181, 182, 781, 785, 917 
 Tuiquand, Ex parte, 2 M. D. 
 
 & D. 339, ... 87, 808 
 Tustin V. Cameron, 5 Whart. 
 
 379, 1080 
 
 Tuten V. Ryan, 1 Spears (S. 
 
 Ca.), 240, .... 454 
 Tutt V. Adams, 24 Mo. 186, - 360 
 
 V. Cloney, 62 Mo. 116, - 68;) 
 
 V. Land, 50 Ga. 339, 255, 702, 
 
 781, 819 
 Tuttle V. Cooper, 5 Pick. 414, 1152 
 
 V. Cooper, 10 Pick. 281, 148, 
 
 1094 
 
 V. Eskridge, 2 Munf. 
 
 (Va.) 330, - . - 421, 438 
 
 Tweed v, Lowe, 1 Arizona, 
 
 488, 1137 
 
 Twibill V. Perkins, 8 La. Ann. 
 
 132. 328 
 
 Twiss V. Massey, 1 Atk. 67, . 825 
 Twogood V. Swanston, 6 Ves. 
 
 485, 964 
 
 Twyford v. Trail, 7 Sim. 92, - 482 
 Tylei- V. Scott, 45 Vt. 261, 28, 33, 
 
 325, 411 
 Tynberg v. Cohen (Tex), 2 S. 
 
 W. Rep. 734, - - - 1053 
 
 Tynerv. Stoops, 11 Ind. 22, - 524 
 Tyng V. Thayer, 8 Allen, 391, 681, 
 
 692, 795, 937 
 Tyree v. Lyon, 67 Ala. 1, 362, 367 
 Tyrrell v. Washburn, 6 Allen, 
 
 4(J6, 73 
 
 Tyson v. Pollock, 1 Pa. (Pen- 
 rose & Watts) 375, - 384, 524 
 
 u. 
 
 Uberoth v. Union Nat'I Bk. 9 
 
 Phila. 83, - - - - 715 
 Uhl V. Bingaman, 28 Ind. 365, 631 
 
 clxxvi
 
 Uhl.] 
 
 TABLE OF CASES. 
 
 [Van. 
 
 Uhl V. Harvey, 78 Ind. 26, 619, 1147, 
 
 1155, 1157 
 XThler v. Browning, 28 N. J. L. 
 
 79, 201,205,439,443,451,701,1152 
 
 V. Semple, 20 N. J. 288, 290, 304, 
 
 544, 820, 821, 1101 
 Ulcry V. Ginrich, 57 111. 531, 329, 
 
 343, 371 
 Umbarger v. Plume, 26 Barb. 
 
 461, 
 
 Union Bk. v. Eaton, 5 Humph. 
 
 501, 
 
 V. Hall, Harper (S. Ca, ), 
 
 245, 
 
 V. Hodges, 11 Rich. (S. 
 
 Ca.) L. 480, - - - . 
 
 V. Underbill, 21 Hun, 178, 
 
 Union Nat'l Bk. v. Underbill, 
 
 102 N. Y. 336, 
 Union & Planters' Bank v. Day, 
 
 12 Heisk. 413, 
 Union Hotel Co. v. Hersee, 79 
 
 N. Y. 454, .... 
 United States v. Am. Bell Tele- 
 phone Co. 29 Fed. Rep. 17, - 
 V. Athens Armory, 35 Ga. 
 
 344, 
 
 V. Aslley, 3 Wash. C. C. 
 
 508, 205, 368, 415, 416, 420, 422, 
 
 438 
 
 V. Duncan, 4 McLean, 607, 545, 
 
 831 
 
 V. Fish, 24 Fed. Rep. 585, 488 
 
 V. Glab, 99 U. S. 225, 178, 269 
 
 V. Hack, 8 Pet. 271, 831, 832 
 
 V. Hallock, U. S. Supreme 
 
 Ct. Book 17, Lawy. Coop. 
 
 Ass'n, p. 568, ... 
 V. Lewis, 92 U. S. 618 
 
 (affg. 13 Bankr. Reg. 33), - 
 V. McGiunis, 1 Abb, U. S. 
 
 534 
 
 448 
 
 680 
 
 585 
 353 
 
 1152 
 446 
 316 
 
 1086 
 721 
 
 114 
 
 831 
 
 120, 
 
 — V. 
 
 — V. 
 
 V. 
 
 V. 
 
 236, 
 
 Sbelton, 1 Brock. 517, 
 
 Thomasson, 4 Biss. 99, 
 
 Thompson, Gilpin, 614, 
 
 "Williams, 4 McLean, 
 
 1105, 1106, 1111 
 
 488 
 831 
 4G8 
 385 
 
 U. S. Bank v. Binney, 5 Mason, 
 176, 150, 156, 216, 317, 373, 443, 
 
 608, 922, 978, 979 
 University of Cambridge v. 
 
 Baldwin, 5 M. & W. 580, - 653 
 Updike V. Doyle, 7 R. I. 446, - 510, 
 
 511, 512, 935 
 Upham V. Hewitt, 42 Wis. 85, 33 
 
 V. Naylor, 9 Mass. 490, - 1103 
 
 Upson V. Arnold, 19 Ga. 190(63 
 
 Am. Dec. 302), - - 559, 560 
 Urqubart v. Powell, 54 Ga. 29, 61, 
 
 323 
 Usher v. Dauncey, 4 Camp. 
 
 97, 199, 691 
 
 Usry V. Rainwater, 40 Ga. 328, 541 
 Utley V. Smith, 24 Conn. 290, 557, 
 
 569 
 
 V. 
 
 Vaccaro v. Toof, 9 Heisk. 
 
 (Tenn.) 194, - - - 525, 608 
 Valentine v. Farnsworth, 21 
 
 Pick. 176, - 610, 644, 713, 737 
 
 v. Hickle, 39 Oh. St. 19, 80, 446 
 
 Valett v. Parker, 6 Wend. 615, 361, 
 
 1063 
 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. 281, - - - 858, 861 
 Van Brunt v. Applegate, 44 N. 
 
 Y. 544, 291 
 
 v. Mather, 48 Iowa, 503, - 328 
 
 Vance v. Blair, 18 Oh, 532 (51 
 
 Am. Dec. 467), - 78. 870, 871, 872 
 v. Campbell, 8 Humph. 
 
 524, 410 
 
 v. Cowing, 13 Ind. 460, 747, 750 
 
 Vanderburgh v. Bassett, 4 
 
 Minn. 242, . . 381, 383, 466 
 V. Hull, 20 Wend. 70, - 43 
 
 Vandervoort v. Palmer, 4 
 Duer, 677, 679, ... 1086 
 
 clxxvii
 
 Van.] 
 
 TABLE OF CASES. 
 
 [Via 
 
 Vanderwyck v. Summerl, 2 
 
 Wash. C. C. 41, - - - 486 
 Van Deusen v. Blum, 18 Pick. 
 
 229 (29 Am. Dec. 583), - 418, 420 
 Vandike v. Rosskam, 67 Pa. 
 
 St. 330, - - - . 1101, 1106 
 Van Doren v. Horton, 19 Hun, 
 
 7, 687 
 
 Vanduzer v. McMillan, 37 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. 322), - 703 
 Van Kirk v. Wilds, 11 Barb. 
 
 520, .... 1118, 1119 
 Van Kuren v. Trenton Locom, 
 
 & Mach. Mfg. Co. 13 N. J. 
 
 Eq. 302, - - 17, 33, 133, 577, 991 
 Vanness v, Dubois, 04 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 Reimsdyk v. Kane, 1 Gall. 
 
 371 : id. 630, - - - - 
 Van Rensselaer v. Emery, 9 
 
 How. Pr. 135, 
 Van Rossum v. Walker, 11 
 
 Barb. 237, .... 
 Van Sandan v. Moore, 1 Rusa. 
 
 464, - - - - 574, 1011 
 
 Van Scoter v. Lefferts, 1 1 Barb. 
 
 140, 629 
 
 Van Staden v. Kline, 04 Iowa, 
 
 180, - - - SOO, 705, 706 
 Vansyckle v. Rorback, 6 N. J. 
 
 Eq. 234, . ... 147 
 
 Van Tine v. Crane, 1 Wend. 
 
 524, 346 
 
 Van Valen v. Russell, 13 Barb, 
 
 590, - - - 155, 840, 1053 
 Van Valkenburg v. Bradley, 
 
 14Iowa, 108, - - - 695,698 
 Van Wagner v. Chapman, 29 
 
 Ala. 173, - - - 825, 833 
 Vanzant v. Kay, 2 Humph. 
 
 106, - - . 694, 1168, 1169 
 Varnum v. Campbell, 1 
 
 McLean, 313, - - - 1067 
 
 Vassar v. Camp, 14 Barb. 341 
 
 (affd. 11 N. Y. 441), - -33,82 
 Veale v. Hassan, 3 McCord, L. 
 
 278, .... 693, 705 
 
 Venable v. Levick, 2 Head 
 
 (Tenn.), 351, 317, 348, 373, 440, 447 
 Venning v. Deckie, 13 East, 7, 874, 
 
 875 
 Verderwater v. Blills, 19 How. 
 
 82 (affg. McAll. 9), - - 908 
 Vera v. Ash by, 10 B. & C. 288, 64, 
 
 221, 445, 503 
 Vermillion v. Bailey, 27 111. 
 
 230, 313 
 
 Vernon v. Hallam, 34 Ch. D. 
 
 748, - - 6G4, 660, 676, 677 
 
 V. Jeffrys, Str. 1140, - 1016 
 
 V. Manhattan Co. 22 
 
 Wend. 183 (aff. s. c. 17 id. 
 524), - 536, 606, 613, 617, 618 
 
 — V. Upson, CO Wis. 418, - 566 
 
 — V. Vundry, 2 Atk. 119, - 964 
 
 — V. Vernon, 7 Lans. 492 
 
 (modified 53 N. Y. 351), ■ - 603 
 Vetter v. Lentzinger, 31 Iowa, 
 
 182, 265 
 
 Vetterlein, In Matter of, 5 Ben. 
 
 C. C. 311, .... 195 
 V. Barnes, 6 Fed. Rep. 
 
 693, - - - - 717, 755 
 Vice V. Fleming, 1 Tounge & 
 
 J. 227, 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. 529, .... 247, 1012 
 clxxviii
 
 'Vie.] 
 
 TABLE OF CASES. 
 
 [Wal. 
 
 Vienne v. Harris, 14 La. Ann. 
 383, - - - ' - - 1069 
 
 V. McCarty, 1 Ball. 154, 720, 924 
 
 Vilas V. Farwell, 9 Wis. 460, 580. 884 
 Viles V. Bangs, 36 Wis. 131, - 383, 
 
 1024, 1038 
 Villa, V. Jonte, 17 La. Ann. 9, 
 V)nal V. Burrill, 16 Pick. 401, 
 
 457 
 
 701, 
 
 864 
 
 V. West Va. Oil, etc. Co. 
 
 110 U. S. 215, - - - 1018 
 
 Vincent v. Martin, 79 Ala. 540, 59S, 
 
 601, 742, 908 
 
 Vinsen v. Lockard, 7 Bush, 
 458, 142 
 
 Vinson v. Beveridge, 3 Mac Ar- 
 thur (Distr. Col.), 597, - 23, 91, 99 
 
 Von Pheel v. Connally, 9 Por- 
 ter (Ala.), 453. - - - 1081 
 
 Von Phul V. New Orleans, 24 
 La. Ann. 261. - - - 176 
 
 Voorlioes v. Jones, 29 N. J. L. 
 270, - - 33,33,37,43,344 
 
 Voorhis V. Baxter, 18 Barb. 
 593, 750 
 
 V. Childs, 17 N. Y. 354, - 747, 
 
 748, 750 
 
 Vose V. Singer, 4 Allen, 226, - 69 
 
 Vosper V. Kramer, 31 N. J. Eq. 
 420, - - - 551, 560, 732 
 
 Vredenburg v. Behan, 33 La. 
 Ann. 027, . - - . 5 
 
 V. Lagan, 28 La. Ann. 941, 349 
 
 Vulliamy v. Noble, 4 My. & 
 Cr. l09;3Mer. 619, - 610, 747 
 
 Vyse V. Foster, L. R. 8 Ch. 
 App. 309, and L. 7 H. L. 318, 481. 
 
 485, 797 
 
 w. 
 
 VVaddell V. Cook, 3 Hill, 47, - 1108 
 
 Wade V. Jenkins, 3 Giff. 509, - 661 
 
 V. Metcalf, 16 Fed. Rep. 
 
 130, 206 
 
 V. Rusher, 4 Bosw. 537, - 932 
 
 Wadley v. Jones, 55 Ga. 329, 885, 
 
 910, 916 
 
 Wadsworth v. Manning, 4 Md. 
 
 59, - - 40, 264, 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. - - - 832. 324, 348 
 
 V. Simmons, 61 Ala. 143, 328, 
 
 341, 370 
 
 V. Wagner, 50 Cal. 76, - 551 
 
 Wagnon v. Clay, 1 A. K. Mar. 
 
 (Ky.) 257, - - 319, 365, 373 
 Waiuvvright v. Waterman, 1 
 
 Ves. Sr. 311, - - - - 249 
 Wait, Re, 1 Jac. & W. 605, - 755 
 
 V. Brewster, 31 Vt. 516, - 100 
 
 V, Thayer, 118 Mass. 473, 353 
 
 Waite, In re, 1 Low. 207; 1 
 
 Bankr. Reg. 373, - - 443, 563 
 
 V. Dodge, 34 Vt. 181, 152, 153 
 
 609, 1022, 1023 
 
 V. Foster, 33 Me. 424, - 690 
 
 V. Mathews, 50 Mich. 393, 1131 
 
 V. Merrill, 4 Me. 103, - 13 
 
 Walcott V. Canfield, 3 Conn. 
 
 194, 331 
 
 Waldeck v. Brande, 61 Wis. 
 
 579 (21 N. W. Rep. 533), 518, 709 
 Walden v. Sherburne, 15 
 
 Johns. 409, 12, 56, 317, 420, 423, 
 437, 438, 447, 451, 700 
 Waldo Bank v. Greely, 16 Me. 
 
 419. 301 
 
 V. Lumbert, 16 Me. 416, 352, 415 
 
 Waldron, In re. 98 N. Y. 671, - 
 V. Simmons, 28 Ala. 639, 
 
 453 
 
 747, 
 
 750 
 
 Wales V. Chamberlin, 19 Mo. 
 
 500, 
 
 v\ alkenshaw v. Perzel, 4 Robt. 
 
 426 ; 32 How. Pr. 233, - 
 Walker, Ex parte, 4 De G. F. 
 
 & J. 509, .... 
 
 , Re, 6 Ontario App. 169, - 
 
 825, 833 
 V. Bean (Minn. 1886), 26 
 
 N. W. Rep. 233, - - - 336 
 
 1073 
 
 931 
 
 563 
 563, 
 
 cixxix
 
 Wal.] 
 
 TABLE OF CASES. 
 
 [Wan. 
 
 Walker v. Clark, 8 Iowa, 474, lOSG 
 
 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. 39, - 998 
 
 V. Kee, 14 S. Ca. 142, 854, 859, 
 
 401, 1040 
 
 V. Kee, 16 S. Ca. 76, - 1040 
 
 V. McCuUoch, 4 Me. 431, - 385 
 
 V. Marine Natl. Bank of 
 
 Erie, 98 Pa. St. 574, - 566, 567 
 
 V. Mattliews, 58 111. 193, - li:J7 
 
 V, Mottram, 19 Ch. D. 355, 667 
 
 V. Sharpe. 103 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. & 
 
 M. (19 Miss.) 574, - - - 1028 
 Wallace's Appeal, 104 Pa. St. 
 
 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. - - 1103 
 
 V. Jaaies, 5 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 
 
 Waller v. Davis, 59 Iowa, 103, 347» 
 507, 509, 570, 585 
 
 V. Keyes, 6 Vt. 257, 317, 319, 
 
 322, 343, 362, 439 
 Wallingford v. Burr, 17 Net. 
 
 137, 657 
 
 Wallis V. Carpenter, 13 Allen, 
 
 19, 234 
 
 V. Wallace, 6 How. (Miss.) 
 
 254, 1121 
 
 Walhvorth v. Holt, 4 M. & Cr. 
 
 619, 914 
 
 Walrasley v. Cooper, 11 A. «fc 
 
 E. 216 ; 3 Per. & Dav. 149, 383, 385 
 
 V. Mendelsohn, 31 La. 
 
 Ann. 152, - - - - 738 
 
 V. Walmsley, 3 Jones & 
 
 Latouche, 556, - - 983, 983 
 
 Wain V. Hewes, 5 S. & R. 
 
 467, 723 
 
 Walpole V. Ren f roe, 16 La. 
 
 Ann. 92, .... 761 
 Wahath v. Viley, 2 Bush, 478, 91 
 Walsh V. Adams, 3 Den. 125, 1108 
 V. Lennon, 98 III. 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. 359,- - - 566, 1153 
 
 V. Moser, 38 Tex. 290, - 452 
 
 V. Yeager, 4 Pliila. 251, - 403 
 
 Wallenstein v. Selizman, 7 
 Bush, 175, .... 1084 
 
 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. 593, 012, 
 
 618 
 Walworth v. Henderson, 9 La. 
 
 Ann. 339, - - - 353, 361 
 Warnsley v. Lindenberger, 2 
 
 Rand. (Va.) 478, - - - 148 
 Waiin V. Kelly, 5 Fed. Rep. 
 
 584; 2 McCrary, 628, 113, 127, 865 
 
 clxxx
 
 Wan.] 
 
 TABLE OF CASES. 
 
 [Wat. 
 
 Wann v. McNulty, 7 111. 355 (43 
 Am. Dec. 58), - - - 535 
 
 Want V. Reece, 1 Bing. 18, - 879 
 
 Ward's Appeal, 8H Pa. St. 
 270, , . . - nil, 1113 
 
 Ward, Re (U. S. D. C. Tenn., 
 
 1879), 8 Reporter, 136, - - 23, 47 
 
 V. Apprice, 6 Mod. 264, 314, 
 
 978 
 V. Barber, 1 E. D. Smith, 
 
 423, .... 681, 692 
 V, Bodeman, 1 Mo. App. 
 
 272, 45, 70 
 
 V. Brigham, 127 Mass. 24, 4 
 
 V. Chase, 35 Me. 515, - 1162 
 
 V. Coulter, 4 N. J. L. 208, 1104 
 
 V. Dow, 44 N. H. 45, - 1008 
 
 V. Gore, 37 How. Pr. 119, 965 
 
 V. Johnson, 13 Mass. 148, 535 
 
 V. Motter, 2 Rob. (Va.) 
 
 536, - . - . 420, 525 
 
 V. Newell, 37 Tex. 261, - 1079 
 
 V. Pine, 50 Mo. 38, - - 1065 
 
 . V. Smith, 6 Bing. 749, - 1031 
 
 V. Thompson, 22 How. 
 
 330 (affg. Newb. 95), - 32, 908 
 V. Wood burn, 27 Barb. 
 
 846, 
 
 534 
 954 
 
 Warden v. Marcus, 45 Cal. 594, 
 Warder v. Newdigate, 11 B. 
 
 Mod. 174 (52 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, 825, 848 
 Wardwell v. Haight, 2 Barb. 
 
 549, 613 
 
 Ware v. Owens, 42 Ala. 412, - 286 
 Warfield v. Booth, 33 Md. 63, 676 
 Waring v. Crow, 11 Cal. 366, 589 
 V. Robinson, Hoffm. (N, 
 
 Y.) Ch. 524, - - - 380, 1006 
 
 V. Waring, 1 Redf. 205, - 715 
 
 Warner, Re, 7 Bankr. Reg. 47, 150 
 
 V. Griswold, 8 Wend. 665, 111, 
 
 1019 
 1127 
 
 Warner v. Smith, 1 De G. J. 
 
 & S. 337, 
 
 172, 183 
 
 Warren, Re, 2 Ware, C. C. 323, 26, 
 200, 279, 302, 444,, 415, 453, 825 
 
 V. Able, 91 Ind. 107, - 825 
 
 V. Ball, 37 111. 76, - 152, 609 
 
 V. Chambers, 12 111. 124, 1074 
 
 V. Chapman. 105 Mass. 
 
 87, 114, 128 
 
 510 
 
 832 
 
 348 
 
 531 
 
 1125 
 
 304, 
 
 810 
 
 184, 821 
 
 - 1105 
 
 - 1109 
 
 - 931 
 
 - 735, 
 849, 852, 854 
 
 Warring v. Grady, 49 Ala. 465, 318 
 V. Hill, 89 Ind. 497, - 
 
 V. Dickson, 30 111. 363, - 
 V. Farmer, 100 Ind. 593, - 
 V. French, 6 Allen, 317, - 
 V. Hayzlett, 45 Iowa, 235, 
 V. Perkins, 8 Cuah. 518, - 
 V. Schainwald, 63 Cal. 56, 
 
 ■ V.Taylor, 60 Ala. 218, 
 
 • V. Wallis, 38 Tex. 225, 
 
 • V. Wallis, 42 Tex. 473, 
 V. Warren, 56 Me. 360, 
 V. Wheelock, 21 Vt. 323, 
 
 891 
 1126 
 
 V. Perkins, 8 Cush. 518, 
 
 Wart V. Mann, 124 Mass. 586, 
 Wartelie v. Hudson, 8 La. 
 
 Ann. 486, - - - - 194 
 WarLh V. Radde, 18 Abb. Pr. 
 
 396, 1038 
 
 Warthen v. Brantley, 5 Ga. 
 
 571, 934 
 
 Warwick v. Richardson, 10 M. 
 
 & W. 284, - . - 638, 640 
 Washburn v. Bank of Bellows 
 
 Falls, 19 Vt. 278, - 454, 824, 825. 
 929, 1109, 1115 
 
 V. Goodman, 17 Pick. 519, 580, 
 
 707, 744, 769, 772, 774, 782, 
 788, 795, 797, 935 
 V. Walworth, 133 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 
 
 clxxxi
 
 Wat.] 
 
 TABLE OF CASES. 
 
 [Wek, 
 
 Waterman v. Hunt, 2 R. I. 298, 543, 
 559, 5G0, 882, 884 
 
 V. Johnson, 49 Mo. 410, - 597 
 
 V. Lipman, 67 Cal. 26, - 10G6 
 
 Waters v. Taylor, 15 Ves. 10, 233 
 
 993, 999 
 
 V. Taylor, 2 V. & B. 299, - 581 
 
 V. Tompkins, 2 C. M. & 
 
 R. 723, 489 
 
 Wat kins v. Fakes, 5 Heisk. 
 
 185, - 726, 739, 740, 923, 935 
 V. Terre Haute, etc. R. R. 
 
 8 Mo. App. 569, ... 66 
 Watkinson v. Bank of Penn. 4 
 
 Whart. 482 (34 Am. Dec. 
 
 521), .... 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, 1 12, 1 16, 
 
 119, 127 
 
 V, Gabby, 18 B. Mon. 658, 1105, 
 
 1109 
 
 V. Lovelace, 49 Iowa, 558, 1137 
 
 V. Miller, 55 Tex. 289, - 722 
 
 V. Murray, 23 N. J. Eq. 
 
 257, .... 112, 119 
 V. Owens, 1 Rich. (S. Ca.) 
 
 L. Ill, - - - 525, 535, 538 
 
 V. Wells, 5 Conn. 468, - 392 
 
 V. Woodman, L. R. 20 Eq. 
 
 721, 704 
 
 Watt V. Kirby, 15 111. 200, 446, 507, 
 
 508 
 Watterson v. Patrick (Pa. 
 
 1885), 1 Atl. Rep. 602, - 603, 610 
 Wattles V. Moss, 46 Mich. 52, - 1158 
 Watts V. Rice, 75 Ala. 289, - 1064 
 V. Robinson, 32 U. C. Q. 
 
 B. 362, 520 
 
 V. Say re, 76 Ala. 397, - 1079, 
 
 1084 
 Waugh V, Cariger, 1 Yerg. 31, 420 
 V. Mitchell, 1 Dev. & Bat. 
 
 Eq. 510, .... 977 
 
 Waugh V. Carver, 2 H. BI. 235 ; 
 
 1 Sm. Lead. Cas. 908, 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. 
 
 272; Holt, N. P. 227, - - 67 
 Wayne v. Clay, 1 A. K. Mar. 
 
 257, 317 
 
 Wayt V. Peck, 9 Leigh, 434, - 740 
 Weatherly v. Hard man, 68 Ga. 
 
 592, 647 
 
 Weaver, Re, 9 Bankr. Reg. 132, 694 
 
 V. Ashcroft, 50 Tex. 427, 561, 
 
 562, 1105 
 
 V. Carpenter, 42 Iowa, 343, 10s5, 
 
 1080 
 
 V. Rogers, 44 N. H. 112, - 1037 
 
 V. Tapscott, 9 Leigh (Va. ), 
 
 424, - - 205, 422, 440, 451 
 
 ^ — V. Weaver, 46 N. H. 188, 825, 
 
 832. 843, 847 
 Webb, Re, 2 J. B. Moore, 500, 761 
 
 V. Fordyce, 55 Iowa, 11, - 765, 
 
 982, 984 
 
 V. Helion, 3 Robt. (N. Y.) 
 
 625, 932 
 
 V. Liggett, 6 Mo. App. 345, 80 
 
 Webber v. Williams, 36 Me. 
 
 512, - - - . 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, 
 
 332 
 
 V. Webster, 3 S wanst. 490, 6 1 0, 
 
 673 
 Wedderburn v. Weddtrburn, 
 
 2 Keen, 722 ; 4 M. & Cr. 41 ; 
 
 22 Beav. 84, 658, 744, 745, 794, 797, 
 
 798 
 Weed v. Kellogg, 6 McLean, 
 
 44, .... - 833 
 V. Peterson, 12 Abb. Pr. 
 
 N. S. 178, - - - - 670 
 
 clxxxii
 
 Wee.] 
 
 TABLE OF CASES. 
 
 [Wes. 
 
 Weed V. Richardson, 2 Dev. & 
 
 Bat. L. 535, - - - 347, 363 
 Weeks v. Mascoma Rake Co, 
 
 58N. H. 101, - - - 299,431 
 Weems V. Stalliugs, 3 Har. & 
 
 J. 865, 43 
 
 Weil V. Guerin, 42 Oh. St. 299, 
 
 303, 454 
 
 V. Jones, 70 Mo. 560, 718, 733, 
 
 1079 
 Weinrich v. Koelling, 21 Mo. 
 
 App. 133, ... - 1133 
 Weisman v. Smith, 6 Jones 
 
 (N. Ca.), Eq. 124, - - - 942 
 Weissenborn v. Seighortner, 
 
 21 N. J. Eq. 483, - 
 Welboru v. Coon, 57 Ind. 270, 
 
 992 
 
 717, 
 723 
 403 
 
 Weld V. Peters, 1 La. Ann. 433, 
 Weldon v. Beckel, 10 Daly, 
 
 473, 761 
 
 Welker v. Wallace, 31 Ga. 362, 483 
 Welland v. Huber, 8 Nev. 203, 961 
 Welles V. March, 30 N. Y. 344, 338, 
 
 340, 583 
 WellesforJ v. Watson, L. R. 8 
 
 Ch. App. 473, - - - 233 
 Well man v. Barker, 3 Oreg. 
 
 253, ... - 990, 999 
 
 V, Southard, 80 Me. 425, - 453 
 
 Wellover v, Soule, 30 Mich. 
 
 481, 1125 
 
 Wells V. Babcock, 56 Mich. 
 
 276, 782, 788, 788, 917, 919, 1136 
 
 V. Carpenter, 65 111. 447, 893 
 
 V. Collins. 11 Lea. 213, - 907 
 
 V. Ellis, 68 Cal. 243 (9 Pac. 
 
 Rep. 80). - 544, 588. 587, 1131 
 V, Erstein, 24 La. Ann. 
 
 817, 958 
 
 V. Evans. 20 Wend. 251 
 
 (reversed in part in Evans v. 
 Wells, Lockw. Rev. Cas. 890; 
 
 22 id. 324), - - - 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, 
 
 620, 138 
 
 V. Strange, 5 Ga, 23, 930, 932 
 
 V. Turner, 16 Md. 133, 317, 333 
 
 V. Wells, 1 Ventr. 40, - 893 
 
 Wells, Fargo & Co. v. Clark- 
 son, 5 Montana, 330, - - 1094 
 Welsh V. Canfield, CO Md. 469, 230 
 V, Speakman, 8 Watts & 
 
 S. 357, ... - 1147, 1154 
 Wendall v. Osborne, 03 Iowa, 
 
 99, 1005 
 
 Wentworth v. Raiguel, 9Phila. 
 
 275 (s. c. as Raiguel's Appeal, 
 
 80 Pa. St. 234), - 455. 645, 761 
 Werner v. Leisen, 31 Wis. 169, 73, 
 
 591, 910. 939 
 Wesson v. Newton, 10 Cush. 
 
 114, 337 
 
 West v. Chasten, 13 Fla. 315, - 533, 
 
 532, 551 
 v. Citizens' Ins. Co. 37 
 
 Oh. St. 1 (22 Am. Rep. 294), 272. 
 
 1024 
 
 v. Kendrick, 46 Ga. 526, 1081 
 
 V. Randall. 2 Mason, 181, 7J0 
 
 V. Skip, 1 Ves. Sr. 239, - 184, 
 
 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. 23 Ch. D. 138, 394 
 West Hickory Min. Ass'n v. 
 
 Reed, 80 Pa. St. 38, - 290, 298 
 West Point Foundry Ass'n v. 
 
 Brown, 3 Edw. Ch. 384, - 89 
 Westbay v. Williams, 5 111. 
 
 App. 531, - - - - 833 
 Westcott, Ex parte, L. R. 9 
 
 Ch. App. 626, - - 836, 844 
 V. Nickerson, 120 Mass. 
 
 410, COS 
 
 V. Price, Wright (O.), 330, 78, 
 
 883 
 
 clxxxiii
 
 Wes.] 
 
 TABLE OF CASES. 
 
 [Wm. 
 
 Westerlo v. Evertson.lWend. 
 
 632, - . - - 852, 861 
 Western Assur. Co. v. Towle, 
 
 65 Wis. 247, - - - 331, 332 
 Western Stage Co. v. Walker, 
 
 2 Iowa, 504, 431, 432, 433, 686, 707 
 Weston, Ex parte, 12 Met. 1, 452, 
 
 453, 829 
 V. Barton, 4 Taunt. 673, 649, 651 
 
 V. Kftcham, 39 N. Y. Su- 
 perior Ct. 54, - - 305, 428 
 
 Westphal v. lleunoy, 49 Iowa, 
 
 542, .... 930, 932 
 
 Wetherbee v. Potter, 99 Mass. 
 
 854, 875 
 
 Wetherwax v. Paine, 2 Mich. 
 
 555, 1125 
 
 Wetraore v. Baker, 9 Johns. 
 
 307, .... 06, 861 
 
 V. Woodbridge, Kirby 
 
 (Conn.), 104, .... 849 
 
 Wetter v. Schheper, 4 E. D. 
 
 Smith, 707 ; 15 How. Pr. 208, 338, 
 
 340, 403 
 Weyer v. Thorn burgli, 15 Ind. 
 
 124, - - 824, 825, 828, 832 
 
 Whaley v. Moody, 2 Iluniph. 
 
 (Tenn.)^95, .... 349 
 Wharton v. Douglass, 76 Pa. 
 
 St. 273, 850 
 
 V. May, 5 Ves. 27, - - 904 
 
 V. Woodburn, 4 Dev. & 
 
 Bat. L. 507, - 348, 418. 422, 423 
 Wheat V. Hamilton, 53 Ind. 
 
 256, - - 175, 507, 511, 640 
 Wheatcroft v. Hickman, 9 C. 
 
 B. N. S. 47 (s. c. on appeal as 
 
 Cox V, Hickman), - - 19 
 
 Wheatley v. Calhoun, 12 Leigh 
 
 (Va.), 204 (37 Am. Dec. 054), 282, 
 
 287, 839 
 
 V. Tutt, 4 Kan. 240, - 334, 1088 
 
 V. Wheeler, 34 Md. 02, 978, 979 
 
 Wheeler, Ex parte. Buck. 25, 541 
 
 V. Arnold, 30 Mich. 304, - 864 
 
 V. Farmer, 38 CaL 203. 59. 69, 
 
 " fc94 
 clxx 
 
 Wheeler v. McEldowney, CO 
 
 111. 358, 94 
 
 V. Page, 1 Wall. 518, - 306 
 
 V. Rice, 8 Cush. 205, - 365 
 
 V. Van Wart, 9 Sim. 193, 574 
 
 V. Wheeler, 111 Mass. 247, 864 
 
 Wheelock v. Doolittle, 18 Vt. 
 
 440(40 Am. Dec. 103), - 703, 705 
 Whelen v. Watraough, 15 S. 
 
 & R. 153, .... 274 
 Whetham v. Davey, 30 Ch. D. 
 
 574, 185 
 
 Wlietstone v. Shaw, 70 Mo. 
 
 575, .... 860, 862 
 Whigbam's Appeal, 63 Pa. St. 
 
 194, . . . 548, 1101, 1108 
 
 Whincup V. Hughes, L. R. 6 C. 
 
 P. 78, 807 
 
 Whipple V. Parker, 29 Mich. 
 
 309, - - . 0, 8, 72, 208 
 Whitaker v. Bledsoe, 34 Tex. 
 
 401, 881 
 
 V. Brown, 16 Vvend. 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, 
 
 231, 813, 816, 819 
 
 V. Whiting, Dougl. 052, - 705 
 
 White, Ex parte, L. R. 6 Ch. 
 
 397, 481 
 
 , In re, 4 Ont. App. 410, - 634 
 
 V. Ansdell, Tyr. & Gra. 
 
 785, 879 
 
 V. Barton, 18 Beav. 192, - 972 
 
 v. Bullock, 18 Mo. 16, - 817 
 
 V. Chapin, 134 Mass. 230, - 716 
 
 V. Conway, GO Cal. 383, - 970 
 
 V. Cox, 3 Hay. (Tenn.) 79, 309 
 
 V. Davidson, 8 Md. 169, - 350 
 
 v. Dougherty, Mart. & 
 
 Yer. (Tenn.) 309, 184, 820, 842, 848 
 
 V. Fitzgerald, 19 Wis. 480, 
 
 64 
 
 V. Gardner, 37 Tex. 407, 598, 742 
 
 xiv
 
 Whl] 
 
 TABLE OF CASES. 
 
 [Wm. 
 
 White V. Gibson, 11 Ired. L. 
 
 283, 1153 
 
 V. Hale, 3 Pick. 291, - 705 
 
 V. Harlow, 5 Gray, 463, - 852 
 
 V. Jones, 38 111. 159, 1105, 1111 
 
 V. Joues, 14 La. Ann. 681, 381, 
 
 692 
 
 V. Jones, 1 Robt. 321; 1 
 
 Abb. Pr. (N. S.) 328. - 664, 669 
 
 V. Kearney, 2 La. Ann. 
 
 639, .... 322, 707 
 
 V. Lea\itt, 20 Tex. 703, - 1094 
 
 V. Magann, 65 Wis. 80, 644, 983 
 
 V. Murphy, 3 Rich. L. 
 
 369, 612 
 
 V. Parish, 20 Tex. 088, 551, 560, 
 
 713, 824 
 
 V. Russell, 79 111. 155, 735, 730 
 
 V. Savery, 50 Iowa, 515, - 1024 
 
 V. Schuebly, 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. 509, - - 411 
 
 V. Tudor. 24 Tex. 639 (T. 
 
 V. W. 27 id. 584), - 618, 690, 695, 
 
 1171 
 V. Union Ins. Co. 1 Nott 
 
 & McC. 556 (9 Am. Dec. 726), 723, 
 
 732 
 V. Waide, Walk. (]\Iiss.) 
 
 263, .... 735, 849 
 
 V. White, 5 Gill, 359, 570, 934 
 
 V. White, 4 Md. Ch. 418, - 931 
 
 V. Williams, Willm. Woll. 
 
 & Hod. 52, .... 437 
 V. Woodward, 8 B. Mon. 
 
 484, 1101, 1105, 1109, 1111, 1112 
 Whiteliead v. Bank of Pitts- 
 burg, 2 Watts & S. 172, 695, 1105 
 V. Chadwell, 2 Duvall, 432, 827 
 
 V. Hughes, 2 Cr. & M. 
 
 318; 4 Tyiwh. 92, - - - 1020 
 Whitehill v. Shickle, 43 Mo. 
 637, .... 56. 879 
 
 Wliite Mountain Bank v. West, 
 
 46 Me. 15, - - - 259, 262 
 
 Whitesides v. Collier, 7 Dana, 
 
 283. .... 274, 275 
 
 V. Lafferty, 3 Humph. 150. 795 
 
 V. Lee, 2 111. 548, - 627, 1073 
 
 Whiting V. Farrand, 1 Conn. 
 
 00, 707 
 
 V. Leakiu, 66 Md. 255, 43, 571, 
 
 948, 1142, 1147 
 
 V. Withington, 3 Gush. 
 
 413, 
 
 1094 
 181 
 
 Whitis V. Polk, 36 Tex. C03, - 
 
 Whitley v. Lowe, 25 Beav. 421 ; 
 2 DeG. & J. 704. - - - 705 
 
 Whitlock V. McKechnie, 1 
 
 Bosw. 427. - - - 191, 1025 
 
 Whitman v. Boston & Me. R. 
 
 R. 3 Allen, 133, - - - 293 
 
 V. Keith, 18 Oh. St. 134, - 173, 
 
 1059, lOai, 10a2, 1091), 1128 
 
 V. Leonard, 3 Pick. 177, - 341, 
 
 589, 626 
 
 V. Porter, 107 Ma.ss. 522, 72, 73 
 
 458, ",(50 
 
 V. Robinson, 21 Md. 30, - 574, 
 
 594, 597, 998 
 
 V. Wood, 6 Wis. [G70J. Co2, 1073 
 
 Whitmore, Ex parte, 3 M. & 
 A. 627 ; 3 Deac. 365 iS. C. on 
 appeal as Ex parte Jackson, 
 2 M. D. & D. 146), - 512, 516 
 
 V. Adams, 17 Iowa, 507, - 349 
 
 V. Mason, 2 Johns. & 
 
 Hem. 204, - - - . 
 — V. Parks, 3 Humph. 95, 
 
 246 
 
 561. 
 
 569 
 
 V. Shiverick, 3 Nev. 238. 184, 
 
 186, 1086, 1129 
 Whitney v. Burr, 115 111. 289, - 788 
 
 V. Cook, 5 Mass. 139, 336, 337, 
 
 714 
 
 V. Gotten, 53 Miss. 689, - 283, 
 
 290, 291, 293, 294, 822, 931, 940 
 
 V. Dean. 5 N. II. 249. 505, 568 
 
 V. Dutcli. 14 M It; •.. 457 (7 
 
 Am. Dec. 22D). - - 142, 145 
 
 clxxxv
 
 Wm.] 
 
 TABLE OF CASES. 
 
 IWiu 
 
 Whitney v. Farrand, 1 Conn. 
 
 (50, 707 
 
 V. LacUI, 10 Vt. 165, - - 1105 
 
 V. Ludiiigton, 17 Wis. 140, 35, 88 
 
 V. Punington, 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. 
 
 3S3, - - - - 314, 678 
 Wliittemore 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.) Ch. 172, - - 403, 587 
 
 V, State, 37 Miss. 379, - 488 
 
 Whitwell V. Arthur, 35 Beav. 
 
 140, 581 
 
 V. Warner, 20 Vt. 425, - 498 
 
 Whitworth v. Ballard, 56 lud. 
 
 279, 690 
 
 V. Benbow, 56 Ind. 194, - 551 
 
 V. Harris, 40 Miss. 483, - 1014 
 
 V. Patterson, 6 Lea, 119, - 43, 
 
 105, 155, 338, 608 
 Wickham v. Davis, 24 Minn. 
 
 167, - . . . 930, 1109 
 
 v. Wickham, 2 K. & J. 478, 330, 
 
 331 
 Wickliflfe v. Eve, 17 How. 468, 739, 
 
 923 
 Wicks V. Lippman, 13 Nev. 
 
 499, - - - 858, 887, 893 
 
 Widdifield V. Widdifield, 2 
 
 Bin. 245, - - - - 1145 
 Wiegand v. Copeland, 14 Fed. 
 
 Rep. 118; 7 Sawy. 442, 281, 970, 
 
 974, 977 
 Wiesenfeld v. Byrd, 17 S. Ca. 
 
 106, - - 454, 494, 727, 749 
 
 clxx 
 
 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 Cush. 48G, 349, 1094 
 
 Wiggins V. Graham, 51 Mo. 17, 43 
 
 V. Hammond, 1 Mo. 121, 446 
 
 Wightman v. Tovvnroe, 1 M. 
 
 & S. 412, ... - 51 
 Wilby V. Phiuney, 15 Mass. 
 
 116, - 735, 772, b58, 864, 886 
 
 V. Sledge, 8 Ga. 532, - 1049 
 
 Wilcox V. Dodge, 12 III. App. 
 
 517, 416 
 
 V. Jackson, 7 Colorado, 
 
 521, - . 325, 338, 403, 406 
 
 560 
 1150 
 
 336 
 
 722 
 
 297 
 
 106/ 
 
 V. Kellogg, 11 Oil. 394, - 
 V. Matthews, 44 Mich. 192, 
 V. Singletary, Wright (O.), 
 
 420, 
 
 V. Soper, 13 B. Mon. 411, 
 V. Wilcox, 13 Allen, 252, 
 V. Woods, 4 111. 51, - 
 
 Wilcoxsou V. Burton, 27 Cal. 
 
 228, .... 377, 378 
 
 Wild V. Davenport, 48 N. J. L. 
 
 129. . - 23. 51, 52. 53, 601 
 
 V. Dean, 3 Allen, 579, 502, 503, 
 
 505, 832 
 
 V. Milne, 26 Beav. 504, 974, 977 
 
 Wilde, Succession of, 21 La. 
 
 Ann. 371, .... 764 
 
 V. Jenkins, 4 Paige, 481, - 261, 
 
 205, 534, 962 
 
 Wilder v. Keeler, 3 Paige, 107. 747, 
 
 750, 825, 832, 842, 848 
 
 V. Morris, 7 Bush, 420, - 764 
 
 V. Savannah, 70 Ga. 700 
 
 (48 Am. Rep. 598), - - 175 
 
 Wildes V. Chapman, 4 Edw. 
 
 Ch. (N. Y.)C09, - - 552,554 
 
 V. Fessenden, 4 Met. 12, 505, 519 
 
 Wiles V. Maddox, 26 Mo. 77. 1101. 
 
 1105, 1106, 1109, 1111 
 
 V. March, 30 N. Y. 344, - 33'J 
 
 XVI
 
 WIL.] 
 
 TABLE OF CASES. 
 
 [WiL. 
 
 Wiley's Appeal, 8 Watts & S. 
 
 244, 668 
 
 Wiley. Re, 4 Biss. 214, - - 560 
 V. Bamngnrdner, 97 Ind. 
 
 66 (49 Am. Rep. 427), - 664, 676 
 
 V. Giiswoli'l, 41 Iowa, 375, 331 
 
 V. Logan, 95 N. Ca, 358, - 1019 
 
 V. Sledge, 8 Ga. 533, 454, 746, 
 
 1117 
 Wilgus V. Lewis, 8 Mo. App. 
 
 336. 507, 508 
 
 Wilhelni v. Caylor, 32 Md. 151, 899. 
 
 943. 943, 946 
 Wilkea v. Clark, 1 Dev. (N. Ca.) 
 
 L. 173, - ~ - - - 33, 1022 
 Wilkins v. Boyce, 3 Watts, 39, 490 
 V. Davis, 2 Lowell. 511 ; 15 
 
 Baakr. Reg. 60, 583, 753, 754, 1020 
 
 V. Earl, 44 N. Y. 173, - 1159 
 
 530 
 
 V. Fitzhugh, 48 Mich. 78, 
 
 V. Pearce, 5 Den. 541 (affd. 
 
 in 2 N. Y. 469), - - 326, 348 
 V. Wardens, etc. of St. 
 
 Mark's Cliurch. 52 Ga. 351, - 75 
 Wilkinson v. Frasier, 4 Esp. 
 
 182, 16, 59 
 
 V. Gilchrist, 5 Ired. L. 
 
 228,' ----- 1057 
 
 V, Henderson, 1 M. & K. 
 
 582, - - - -, - 748 
 
 V. Jett, 7 Leigh (Va.), 
 
 115 (30 Am. Dec. 493), - - 41, 43 
 
 V. Page, 1 Hare, 226, 
 
 234 
 
 V. Tilden, 9 Fed. Rep. 683, 990 
 
 V. Yale, 6 McLean, 16, 561, 562 
 
 Willet V. Brown, 65 Mo. 138 
 
 (27 Am. Rep. 2G5), - 281, 290 
 
 V. Chambers, Cowp. 814, 199, 
 
 475 
 Willett V. Blanford, 1 Hare, 
 
 253, 797 
 
 - — V. Stringer, 17 Abb. Pr. 
 
 152, - - - 403, 406, 481 
 Willey V, Carter, 4 La. Ann. 
 
 56, 299 
 
 V. Thompson, 9 Met. 329, 531, 
 
 611. 737 
 
 William Bagaley, The, 5 Wall. 
 
 377, - - - 70. 401, 582 
 Williams, Ex parte, U Ves. 3, 551, 
 
 559, 679 
 , Ex parte, 3 M. D, & D. 
 
 433, 837 
 
 , Ex parte. Buck. 13. 503, 1016 
 
 , Re, 3 Woods, C. C. 493, 195 
 
 , Re, 5 Boston Law Rep. 
 
 402, 825 
 
 V. Adams, 16 111. App. 
 
 564, 560 
 
 V. Bariiett, 10 Kan. 455, - 323, 
 
 403, 545, 1044 
 
 V. Barton, 3 Bing. 139 
 
 (affg. 5 B. & Aid. 395), - 278 
 
 V. Beaumont, 10 Bing. 
 
 260, 1031 
 
 V. Bingley, 2 Vern. 278, - 990 
 
 V. Bowers, 15 Cal. 321, - 612, 
 
 613 
 
 V. Boyd, 75 Ind. 286, - 534 
 
 V. BrimhalJ, 13 Gray, 462, 383, 
 
 411, 1046, 1079, 1084 
 
 V. Butler, 35 111. 544, - 105 
 
 V. Connor, 14 S. Ca. 621, 1 IJ, 
 
 117, 631, 113". 
 
 V. Donaghe, 1 Rand. (Va.) 
 
 300, 104:j 
 
 V. Frost, 27 ]\Iinn. 253, - 340 
 
 V. Gage, 49 Miss. 777, 824, 1103, 
 
 nil 
 V. Gilchrist, 11 N. H. 535, 347 
 
 V. Gillies, 75 N. Y. 197 
 
 (rev. 13 Hun, 423), 205, 303, 438, 
 
 443, 445 
 
 V. Hamilton, 4 N. J. L. 
 
 250, 1081 
 
 V. Hayes, 20 N. Y. 58, - 91 1 
 
 V. Henshaw, 11 Pick. 79 
 
 (23 Am. Dec. 366), 858, 864, 875. 
 
 876, 877 
 
 — V. Henshaw, 13 Pick. 378 
 
 (23 Am. Dec. 614), - - 864 
 
 — V. Hitchings, 10 Lea, 326, 386 
 
 — V. Hodgson, 2 Har. & J. 
 
 474. - - - 331,430,421 
 
 clxxxvii
 
 WlL.] 
 
 TABLE OF CASES. 
 
 [Wiu 
 
 Williams v. Jones, 5 B. & C. 
 
 108, . - - 85, 208, 221 
 
 V. Lawrence, 47 N. Y. 463, 70 
 
 V. Lawrence, 53 Barb. 320, 184 
 
 V. Love, 2 Head, 80, 184, 290. 
 
 295, 739, 822 
 
 V. Mathews, 14 La. Ann. 
 
 11, 610 
 
 V. Manning. 41 How. Pr. 
 
 454 (Ct. App. 1870, not else- 
 where reported), - - - 700 
 
 V. Moore, Pliila. (N. Ca.) 
 
 Eq. 211, - - - - 735. 1003 
 
 V. More, G3 Cal. 50, - 381, 437 
 
 V. Muthersbaugh, 29 Kan. 
 
 730, - - - 456, 1117, 1119 
 
 V. Roberts, 6 Cold. 403, - 335, 
 
 338, 403 
 V. Rogers, 14 Bash, 776, - 54, 
 
 822, 323, 454, 456, 459, 533, 537, 610, 
 
 638. 1094, 1147 
 
 V. Saginaw. 51 Jlich. 120. 176 
 
 V. Smith, 4 Bush, 510, 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, 720, 
 
 733 
 
 V. Whitmore, 9 Lea, 263, 709 
 
 V. Williams, L. R. 3 Ch. 
 
 App. 294, - ... 209 
 V. Wilson, 4 Sandf. Ch. 
 
 379, .... 058, 607 
 Williamson v. Adams, 16 Hi. 
 
 App. 564, - . . 551, 554 
 V. Fontain, 7 Baxter 
 
 (Tenn.), 212, - - - 290, 297 
 
 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, .... 385 
 
 V. Wilson, 1 Bland (Md. 
 
 Ch.),418, - - - 593,994 
 
 Willings V. Consequa, Pet. C. 
 
 C. 301-307, .... 885 
 Willis V. Bremner, 60 Wis. 
 
 633, - . . 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, 281, 
 
 1111 
 
 V. Henderson, 43 Ga. 324, 1113 
 
 V. Hill, 2 Dev. & Bat. (N. 
 
 Ca.) L. 231, - 438, 446, 700, 705 
 V. Jernegan, 2 Atk. 251, 954 
 
 V. Morrison, 44 Tex. 27, - 1094 
 
 Wills V. Cutler, 61 N. H. 407, 334 
 V. Simmonds', 8 Hun, 189 
 
 (affg. 51 How. Pr. 48), 42, 874, 889 
 Willson V. Nicholson, 61 Ind. 
 
 241, - - - 715, 723, 731 
 
 V. Owen, 30 Mich. 474, 73, 1 15, 
 
 137 
 Wiln\er v. Currey, 3 De G. & 
 
 Sm. 347, - - 239, 455, 643 
 
 Wilson, Ex parte, L. R. 7 Ch. 
 
 App. 490. .... 841 
 
 V. Albright, 2 G. Greene 
 
 (Iowa), 125, •- - . - 1125 
 
 V. Bailey, 9 Dowl. P. C. 
 
 18 (s. c. as Wilson v; Lewis, 
 
 2 M. & G. 197), - - 847, 509 
 
 V. Bell, 17 Minn., 61, . 311 
 
 V. Brown, 6 Ont. App. 
 
 411, - - 329. 349, 371, 430 
 
 V. Campbell, 10 ill. 38;J, 78, 870 
 
 V. Clarke, 27 Miss. 270, - 1163 
 
 V. 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, 87!) 
 
 V. Dargan, 4 Rich. L. 544, 424 
 
 clxxxviii
 
 WlL.] 
 
 TABLE OF CASES. 
 
 [Win. 
 
 Wilson V. Davis, 1 Montana, 
 
 183, - - 544, 587, 591, 820 
 V. Dosier, 58 Ga. 603, 3G5, 510, 
 
 515 
 V. Elliott, 57 N. H. 31G, 876, 
 
 408 
 
 V. Forder, 20 Oh. St. 89 
 
 (5 Am. Rep. 627), - - - 698 
 V. Genesee Mut. Ins. Co. 
 
 16 Barb. 511, - - - 273 
 V. Greenwood, 1 Swanst. 
 
 471, 246, 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, 524 
 
 V. Johnstone, L. R. 16 
 
 Eq. 605, - - 805, 806, 809 
 
 V. Keedy, 8 Gill, 195, - 1081 
 
 • V. King, Morris (Iowa), 
 
 105. ... - 1059, 1065 
 V. Lewis, 2 M. & O. 197 
 
 (S. C. as Wilson v. Bailey, 9 
 
 Dowl. P. C. 18), - - 317, 509 
 ■ V. Linoberger, 83 N. Ca. 
 
 524, - - - 217, 766, 775 
 
 V. Lloyd, L. R. 16 Eq. 60, 533 
 
 V. Loomis, 55 111. 353, 139, 140 
 
 V. McCarty, 25 Grant's 
 
 Ch. (Up. Can.) 153, 781, 783, 788 
 V. McConnell, 9 Rich. Eq. 
 
 600, 825 
 
 V. Mower, 5 Mass. 411, - 383 
 
 V. Niles, 2 Hall (N. Y.), 
 
 358, 1089 
 
 V. Richards, 28 Minn. 337, 323, 
 
 341, 351 
 
 V. Robertson, 21 N. Y. 587, 566 
 
 V. Runkel, 38 Wis. 526, - 1081 
 
 V. Simpson, 89 N. Y. 619, 218, 
 
 593 
 V. Soper, 13 B. Mon. 411 
 
 (56 Am. Dec. 573), 550, 559, 560, 
 
 629, 715, 718, 726, 731, 733, 739, 7-13, 
 
 851 
 V. Stanhope, 2 Coll. 629, 914 
 
 Wilson V. Stilwell, 9 Oh. St. 
 
 467, 637 
 
 V. Stilwell, 14 Oh. St. 464, 532 
 
 V. Strobach, 59 Ala. 488, 928, 
 
 1109, 1111, 1113 
 V. Torbert, 3 Stew. (Ala.) 
 
 206 (21 Am. Dec. 632). - 701 
 
 V. Turnman, Q M. & G. 
 
 236, 469 
 
 V. Wallace, 8 Serg. & R. 
 
 53. 1019,1023 
 
 V. Waugh, 101 Fa. St. 233, 704 
 
 V. Whitehead, 10 M. & W. 
 
 503, 374 
 
 V. Williams, 14 Wend. 
 
 146 (28 Am. Dec. 518), - 349, 358. 
 
 363, 363 
 Wilt V. Bird, 7 Blackf. 258, - 850 
 Wirapee v. Mitchell, 29 Ga. 
 
 ^6, 
 
 839 
 
 1153 
 
 868 
 
 Winchester v. Whitney, 138 
 Mass. 549, - . - - 
 
 Windham v. Patterson, 1 
 
 Stark. 144, - 
 Windham Co. Bk. v. Kendall, 
 
 7 R. L 77, - 348, 399, 401, 480 
 Winship v. Bank of United 
 
 States, 5 Pet. 529 (5 Mason, 
 
 176), 150, 156, 157, 193, 203, 321, 
 
 333, 337, 341, 348, 351, 370, 443, 
 
 459, 1153 
 Winslow V. ChifTelle, Harp. 
 
 (S. Ca.) Eq. 25, - - 282,286 
 
 V. Newlan, 45 111. 145, 383, 700 
 
 Winsor v. Savage, 9 Met. 346, 788 
 Winston v. Ewing, 1 Ala. 129 
 
 (34 Am. Dec. 76S), - - 1103 
 
 V. Taylor, 28 Mo. 83, - 508 
 
 Winter v. lunes, 4 My. & Cr. 
 
 101, .... 748,750 
 V. Wheeler, 7 B. Mon. 25, 962 
 
 Winters, Estate of, 1 Myrick 
 (Cal.), Prob. Rep. 131, - 
 
 Wintersmith v. Pointer, 2 Met. 
 (Ky.)457, - - - 
 
 Winile V. Crowther, 1 Cr. & J, 
 313; 9 L. J. Ex. 65, 
 clxxxix 
 
 - 1111 
 
 445
 
 Wm.] 
 
 TABLE OF CASES. 
 
 [Woo. 
 
 Wirthman v. Miles, 1 Stark. 
 
 181, 286 
 
 Wise V. Copley, 36 Ga. 508, - 430, 
 
 1083 
 V. Frey, 7 Neb. 134 (29 
 
 Am. Rep. 380), - - - 1131 
 V. Patterson, 3 G. Greene 
 
 (Iowa), 471, ... - 1162 
 Wish V. Small, 1 Camp. 331, - 45 
 Wisham v. Lippincott, 9 N. J. 
 
 Eq. 353, 847 
 
 Wiswall V. Ayres, 51 Mich. 
 
 324, 984 
 
 Wit Cher v. Brewer, 49 Ala, 
 
 119, 463 
 
 Witherhead v. Allen, 28 Barb. 
 
 661, 1094 
 
 Withers v. Withers, 8 Pet. 
 
 3 '5, - - 237, 766, 978, 979 
 Withington v. Herring, 3 Moo. 
 
 & P. 30, 44 
 
 Witraer v, Schlatter, 2 Ravvie, 
 
 359, ..-.'. 8 
 
 Witt V. Corcoran, cited in 
 
 notes to Wellesford v. Wat- 
 son, L. R. 8 Ch. A pp. on p. 
 
 -<7(3. and further explained in 
 
 Pl*^ws 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, 83 N. Ca. 
 
 116, 489 
 
 Wittram v. Van Wormer, 44 
 
 111. 525, ... - 347, 446 
 Woddrop V. Price, 3 Desaus. 
 
 (S. Ca.) 203, - - - - 825 
 Wolbert v. Harris, 19 Grant's 
 
 Cli. (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, ISl 
 
 Wolle V. Brown, 4Whart. 365, 1145 
 Wood's Estate, 1 Ashm. (Pa.) 
 
 514, 
 
 739 
 
 Wood, Ex parte, 2 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, 32, 228, 
 
 591 
 
 V. Braddick, 1 Taunt. 104, 331, 
 
 699 
 
 V. Connell, 1 Whart. 381, 429 
 
 V. Connell, 2 Whart. 542. 156, 
 
 161 
 
 V. Cullen, 13 Minn. 394, - 86, 
 
 854, 1057 
 
 V. Dodgson, 2 M. & S. 195 ; 
 
 2 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. 72 N. Y. 
 
 190 (affg. 9 Hun, 648), - - 198 
 
 V. Fox, 1 A. K. Mar. (Ky.) 
 
 451, 575 
 
 V. Gault, 2 Md. Ch. 433, 575, 
 
 954 
 
 V. Johnson, 13 Vt. 191, - 899 
 
 V. Luscomb, 23 Wis. 287, 463, 
 
 471 
 
 V. Merrow, 25 Vt. 340, - 899 
 
 V. Montgomery, 00 Ala. 
 
 500, 285 
 
 V. O'Kelley, 8 Gush. 406, 1022 
 
 V. Pennell, 51 Me. 53, 91, 93, 94, 
 
 90, 97, 1157 
 
 V. Scoles, L. R. 1 Cli. 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. 
 
 241, 234 
 
 V. Witiierow, 8 Phila. 517. 
 
 (Reversed b}' Meily v. Wood, 
 71 Pa. St. 488, q. v.) 
 
 cxc
 
 Woo.] 
 
 TABLE OF CASES. 
 
 [Wri. 
 
 Wood V. Woad, L. R. 9 Ex. 
 
 190, - - - - 241, 243 
 
 V, Wood, 26 Barb. 356, - 775 
 
 Woodbridge v. Swann, 4 B. & 
 
 Ad. 633, .... 755 
 
 Woodburn v. Winship, 12 Pick. 
 
 430, 426 
 
 Woodbury v. Sackrider, 2 Abb. 
 
 Pr. 402, .... 400 
 
 Woodford v. Dorwin, 3 Vt. 83 
 
 (21 Am. Dec. 573), - - 691 
 Woodling V. Knickerbocker, 
 
 31 Minn. 268, - - 466, 467 
 
 Woodmansie v. Holcomb, 34 
 
 Kan. 35, .... 568. 
 Woodruff V. King, 47 Wis. 
 
 261, - - - 407, 418, 607 
 Woods V. Quarles, 10 Mo. 170, 1139, 
 
 1143 
 V. Wilder, 43 N. Y. 164 (3 
 
 Am. Rep. 684), - - - 582 
 Woodward v. Clark, 30 Kan. 
 
 78, 101 
 
 V. Cowing, 41 Me. 9, - 37, 75 
 
 V. Francis, 19 Vt. 434, 
 V. Horst, 10 Iowa, 120, 
 V. Lazar, 21 CaL 448, 
 V. Newhall, 1 Pick. 500, 
 
 629 
 
 565 
 
 674 
 
 148, 
 
 1094 
 
 V. Schatzell, 3 Johns. Ch. 
 
 412, 995 
 
 V. Winfrey, 1 Cold. 478, - 629 
 
 V. Winship, 12 Pick. 430, 320, 
 
 321, 367 
 Woodworth v. Bennett, 43 N. 
 
 Y. 273, 113, 119, 120, 121, 127, 128 
 V. Downer, 13 Vt 522 (37 
 
 Am. Dec 611), - - 694, 701 
 
 V. Fuller, 24 111. 109, - 1067 
 
 V. Spafford, 2 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, 23 Fed. 
 
 Rep. 676, - - - 338, 1131 
 
 N cxci 
 
 Wooldridge v.Wilkins, 3 How. 
 
 (Miss.) 360, - - - 285, 290 
 Worcester Corn Exchange 
 
 Co., Re, 3 DeG. M. & G. 180, 371 
 Workman v. McKinstry, 21 
 
 Up. Can. Q. B. 623, - 329, 364 
 Woiman v. Giddey, 30 Mich. 
 
 151, .... 560, 1133 
 Woimser v. Meyer, 54 How. 
 
 Pr. 189, 302 
 
 Worth V. Bloss, 30 N. Y. 374, 
 
 151 
 
 251 
 930 
 
 380, 
 
 Worthington v. Macdonnell, 9 
 
 Duval (Canada), 327, - 
 V. White, 42 Mo. 462, 
 
 Worthy v. Brower, 93 N. Ca. 
 
 344, .... 181, 923 
 Wotherspoon v. Wotherspoon, 
 
 49 N. Y. Superior Ct. 152, - 1154 
 Wray v. Milestone, 5 M. & W. 
 
 21, 858 
 
 Wrenshall v. Cook, 7 Watts, 
 
 464, - - - 1079, 1080, 1034 
 Wrexham v. Huddleston, 1 
 
 Swanst. 504, n., - - - 581 
 Wright V. Ames, 3 Keyes, 231 ; 
 
 4 Abb. App. Dec. 644, - 333, 1041 
 
 V. Boynton, 37 N. H. 9, 97, 1086 
 
 V. Brosseau, 73 III. 381, 352, 
 
 363, 507, 509 
 
 V. Cobleigh, 21 N. H. 339, 849, 
 
 856, 861 
 V. Condict (Supr. Ct. U. S. 
 
 1881), 26 Coop. 562, - 753, 1026 
 
 ■ V. Court, 2 C. & P. 233, - 331 
 
 V. Cumpsty, 41 Pa. St. 103, 865 
 
 V. Curtis. 37 111. 514, - 1067 
 
 V. Davidson, 13 Minn. 449, 35 
 
 V. Delaware & Hudson Ca- 
 
 nal Co. 40 Hun, 343, - - 43 
 
 V. Funck. 94 Pa. St. 26, - 1165 
 
 V. Herrick, 125 Mass. 154, 1032, 
 
 1053, 1053 
 
 V. Hooker, 10 N. Y. 51, 195, 441 
 
 V. Hunter, 1 East, 20, 70, 457, 
 
 845 
 V. Hunter, 5 Ves. 792, - 759
 
 Wri.] 
 
 TABLE OF CASES. 
 
 [You. 
 
 Wright T. Jacobs, 61 Mo. 19, - 850, 
 
 853, 858 
 
 V. Michie, 6 Gratt. 354. - 876 
 
 V. Powell, 8 Ala. 560, - 91 
 
 V. Russell, 2 W. Bl. 934; 
 
 3 Wils. 530, .... 650 
 
 V. Storrs, 6 Bosw. 600, 
 
 609 (affd. 31 N, Y. 691), - 713 
 
 V. Swayne, 5 B. Men. 441, 456, 
 
 458 
 
 V. Troop, 70 Me. 346, 639, 630, 
 
 854 
 
 V. Ward, 65 Cal. 525, 907, 931, 
 
 933, 1105, 1111, 1113 
 Wycoff V. Purnell, 10 Iowa, 
 
 333, .... 858, 862 
 Wylie V, Wylie, 4 Grant's Ch. 
 
 Up. Can. 278, - - 290, 297 
 Wyman v. Chicago & Alton 
 R. R. 4 Mo. App. 35, - - 67 
 
 V. Stewart, 42 Ala. 163, - 1062, 
 
 1064 
 Wynne t. Millers, 61 Ga. 
 343 1071 
 
 Y. 
 
 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, .... 536, 537 
 Yates V. Finn, 13 Ch. D. 839, 216, 
 
 794, 797 
 
 V. Lyon, 61 N. Y. 344, - 147 
 
 Yeager v. Wallace, 57 Pa. St. 
 
 305, 325 
 
 Yeakle v. George, 12 Rich, L. 
 
 153, 1163 
 
 Yeatman v. Yeatman, 7 Ch. D, 
 ■ 210, .... 743, 926 
 
 Yeoman v. Lasley, 40 Oh. St. 
 
 190, - - - - 32, 304 
 Yocum V. Benson, 45 111, 435, 1071, 
 
 1094, 1147 
 Yohe V. Barnet, 3 Watts & S. 
 
 81, ... 816, 858, 860 
 
 Yoho V. McGovem, 42 Oh. St. 
 
 11, 537 
 
 Yonge, Ex parte, 3 Ves. & B. 
 
 31, - - - 313, 838, 839, 845 
 York V. Clemens, 41 Iowa, 95, 301, 
 
 303 
 
 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, - - - 192, 443 
 Youmans v. Heartt, 34 Mich. 
 
 397, 491 
 
 Young, Ex parte, 2 Ves. & 
 
 Bea. 343, .... 70 
 
 , Ex parte, 19 Ch. D. 134, 1059 
 
 , Re, 3 Bankr. Reg. Ill, - 1131 
 
 V. Allen, 52 Cal. 466, - 930 
 
 V. Axtell, 2 H. Bl. 242, - 93 
 
 V. Brick, 3 N. J. L. 241, 70, 849 
 
 V. Brick, 3 N. J. L, 663, - 856 
 
 V. Buckett, 51 L. J. Ch. 
 
 504, .... 660, 1001 
 
 V. Clute, 13 Nev. 31, 643, 769 
 
 V. Davidson, 31 Tex. 153, 1096 
 
 V. Frier, 9 N. J. Eq. 465, 824, 
 
 929, 1109 
 
 V. Hunter, 4 Taunt. 583, 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, .363, 
 
 1046, 1169 
 
 V. Smith, 25 Mo. 341, 109, 1143 
 
 V. Tibbitts, 33 Wis, 79, - 620 
 
 Younglove v. Liebhart, 13 
 Neb. 557, - 770, 852, 854, 1075 
 cxcii
 
 Zab.] 
 
 TABLE OF CASES. 
 
 [ZUE. 
 
 z. 
 
 Z. V. X. 3K. & J. 441, - - 581 
 
 Zabriskie v. Hackensack & N. 
 
 Y. R. K. 18 N. J. Eq. 178, 433, 434 
 
 Zimmerman v. Erhard, 8 Duly, 
 311; 58 How. Pr. 11 (atfd. 83 
 N. Y. 74), - - - 189, 198 
 
 - — V, Erhard, 83 N. Y. 74, 139, 198 
 
 Zimmerman v. Huber, 29 Ala. 
 
 379, - 303, 766, 767, 770, 968 
 Zink V. Attenburg, 18 How. 
 
 Pr. 108, .... 1094, 1095 
 ZoUar V. Janvrin, 47 N. H. 324, 617, 
 
 621, 1155 
 Zuel V. Bowen, 78 DI. 334, - 1073 
 
 CZCIU
 
 THE LAW OF PARTNERSHIP. 
 
 PART I. 
 
 NATUHE AND FOMATION. 
 
 CHAPTER I. 
 
 PARTNERS AND PARTNERSHIP DEFINED. 
 
 § 1. Defluition. — 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 number 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 is broad enough to include a corpora- 
 tion. This, however, is not quite correct, for an agreement 
 never constitutes a corporation, but rather the action of the 
 state operating upon the agreement and erecting it into a dis- 
 tinct body. All 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. R,, 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 Roman societas, which was 
 either societas universorum honorum, or communion of all 
 property; universormm quce ex qucestu veniunt, or trade 
 partnership, the usual kind, and which was presumed to be 
 intended in the absence of contrary proof; negotiation is 
 alicujus, 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 its 
 
 1 5 Ch. D. 458. 
 
 3
 
 PARTNERS AND PARTNERSHIP DEFINED. § 3. 
 
 existence or non-existence binds the parties to the case 
 only, and not third persons.^ 
 
 An agreement of partnership, Hke any other contract, 
 must be founded on a consideration either of mutual prom- 
 ises or contributions. A mere promise 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, but 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 asa. 
 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 o£' 
 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. 
 
 364. 5 Coleman v. Ej^re, 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
 
 g 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 patriarchal system, and their business grew 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 Avithout 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 bona fide 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. 3 Phillips v. Phillips, 49 III 437. 
 
 2 Estate of Winters, 1 My rick (Cal.) < Farr v. Wheeler, 20 N. H. 569. 
 Prob. Rep. 131. 
 
 4
 
 PARTNERS AND PARTNERSHIP DEFINED. § 4. 
 
 defective. Trowbridge v. Scudder, 11 Cusli. 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. Brighani, 127 Mass. 21, where officers were elected who 
 transacted business before the organization was completed. Cen- 
 tral City Sav. Bk. v. Walter, 66 N. Y. 424 (aflf. 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 thej' 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 Avere 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 partners. 
 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. Rep. 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 employee 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 Co. v. Maxwell, 22 Fed. Rep. 197, where the defect 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
 
 § 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 v. 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; Cresswell v. Oberly, 17 III. App. 281. 
 
 § 5. 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 Baukr. Reg. 497, and National 
 Bank of Watertown v. Landon, 45 N. Y. 410 {^^ Barb. 189), where 
 stockholders continued business after the expiration of the charter, 
 and each was held liable m solldo for the acts of their managing 
 agent. Bigelow 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, 
 liable 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. Martin 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 v. Cooks, 
 16 La. An. 153, the certificate of the district judge was omitted; 
 
 6
 
 PARTNERS AND PARTNERSHIP DEFINED. § 6. 
 
 held liable as partners. So in Chaffe v. Ludeling, 27 La. An. 607, 
 there was no pretense of any charter, the parties having bonglit 
 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 officers were lield 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, 38 
 Mich. 770, 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. 4:-iQ; 
 Fuller V. Rowe, 57 N. Y. 193 (rev. s. c. 59 Barb. 341); 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 infer se, that an accounting 
 and sharing of losses can be had, including a reasonable rent for 
 the property. And see § 6. 
 
 § 6. inteiitioual yiolation of cliarter powers. — If the 
 
 parties, even though organized as a corporation, knowingly 
 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 N. J. Eq. 31, holds, where persons go to an- 
 other state to be incorporated for the purpose of doing business in 
 
 1 Ridenour v. Mayo, 40 Oh. "St. 9.
 
 § 8. NATURE AND FORMATION. 
 
 tlie state where they live, 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 tlie 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 liabiUty to a participant, for example, to the 
 solicitor who helped to organize knowing there were more than the 
 statutory number of meuibers;^ 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 Tbecoming 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, 22 Fed. Rep. 
 
 Whipple V. Parker, 29 Mich. 3G9 ; 197. Tiiat the liability is in tort for 
 
 and see Holbrooku. St. Paul F. & M. acting as agents without authority, 
 
 Ins. Co. 25 Minn. 229, and Shorb v. and cannot be iu 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, 
 
 ^ London Assur. Co. v. Drennen, also, Sullivan v. Sullivan, 20 S. Ca. 
 
 116 U. S. 461. 79. 
 
 SMedill V. Collier, 16 Oh. St. 599; iBe South Wales Atl. Steamsh. 
 
 Bank v. Hall, 35 Oh. St. 158, 166 ; Staf- Co. 2 Ch. D. 763. 
 
 ford Bank v. Palmer, 47 Conu. 443, 5 Fuller v. Rowe, 57 N. Y. 23 (rev. 
 
 448-9 ; National Bank of Watertown 59 Barb. 344). 
 
 V. Landon, 45 N. Y. 410. See, also, 6 Bank v. Smith, 26 W. Va. 541, 553, 
 
 Blanchard v. KauU, 44 Cal. 440, the court saying the incorporation 
 
 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 corporation 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 OF PARTNERS AND PARTNERSHIPS. 
 
 Leaving out of view the classes of partners in limited 
 partnerships, wdiich are the general and special partners, 
 members of ordinary partnerships may be divided generally 
 into (1) Active and ostensible; (2) Secret or dormant; and 
 (3) Nominal. 
 
 § 9. Active and ostensiMe 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 ma}'' 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 
 
 Garuett v. Richardson, 35 Ark. 144; SReid v. Eatanton Mfg. Co. 40 Ga. 
 
 Witmer v. Schlatter, 2 Rawle, 359. 98. 
 
 1 Whipple u. Parker, 29 Mich. 369; SMcLellan v. Detroit File Works, 
 
 Haslett V. Wotherspoon, 2 Rich. 56 Mich. 579. 
 (S. Ca.) Eq. 395.
 
 § 12. NATURE AND FORMATION. 
 
 partners are not only secret, but by tbe partnership articles 
 are excluded from participating in the management of the 
 business; while others do not participate, and yet are 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 limitation 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 none 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 in part on the faith of his appearance as a mem- 
 ber of it. This subject will be treated more fully under 
 Holding Out. 
 
 § 1 2. 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 pecuhar class, owing 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 primary 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 ouo 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- 
 nershij)s 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. TTiiiversal 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 universonim 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, 
 251, 277 (4 Am. Dec. 273) ; Walden v. 356. 
 Sherburne, 15 id. 409, 422. 
 
 11
 
 § 13. NATURE AND FORMATION. 
 
 ance; aud the sociefas wiiversorum quce ex qucestu veniunt, differing 
 from the former iu that real estate aud 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 occasionally oc- 
 curred approximating closely to aimlversal 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, aud to the Avife of one, were included. Gaselys v. 
 Separatists' Soc. 13 Oh. St. Ill, 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 
 Avas 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.' 
 
 iMurrell v. Murrcll, 33 La. An. Williite, 3 Dana, 170. Of the Har- 
 
 1233. raony Society. Baker v. Nachtrieb, 
 
 2 See flirt lu^r as to this society Goe- 19 How. 126; Schriber v. Rapp, 5 
 
 sele V. Biin^ler, 14 How. 589, aff'g 5 Watts, 351. 
 
 !McLean, 223. So of the Shakers. ^s. P. Houston v. Stanton, 11 Ala, 
 
 Waile V. Merrill, 4 Me. 102; Gass v. 413. 
 
 12
 
 PARTNERS AND PARTNERSHIP DEFINED. § 14. 
 
 But the court will not liold 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 persoJiarum, 
 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. Gulick, 16 N. J. L. 
 ell r. O'Neale, 4 Nev. 504, 514. 161; Goldsmith v. Sachs, 17 Fed. 
 
 2 Such were Catlin v. Gilders, 3 Rep. 726 ; 8 Sawy. 110. 
 Ala. 536; Princeton & Kingston 
 
 13
 
 CHAPTER 11. 
 
 TESTS OF A PARTNERSHIP. 
 
 § 15. Inter se and as to third persons. — The very great 
 importance of this, the most perplexed and difficult part of 
 partnership 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 
 interests 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 tliat they re- 
 ceived part of the fund upon which creditors depended for 
 payment, and this whether such person intended to be a 
 l^artner 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 PARTNERSHIP. g 16. 
 
 annonncecl to have reacbecl tlie modern point; for in all the Ameri- 
 can states the early decisions, Avhile 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 tbe later decisions, English 
 and American, do not generally profess to 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 iyiter se are 
 always liable as partners to third persons, and that persons who 
 are found not to be partners as 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 £4,000 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 share 
 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 relied 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 influence. 
 
 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 arrangement was a device to obtain more than legal 
 
 15
 
 § 16. NATURE AND FORMATION. 
 
 interest, and lieiice 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 on 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 b}^ 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 as 
 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." 
 
 1 This 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 in- ^ Ex jjcirte Hamper, 17 Ves. 403, 
 
 terse; Fereday v. Ilordern, Jac. 144; 412; Ex x>^^'te Langdale, 18 id. 300; 
 
 and see Jestons v. Brooke, Cowp. 793. Ex parte Watson, 19 id. 459, 401 ; Ex 
 
 2 And by Heyhoe v. Burge, 9 C. B. par^e Rowlandson, 1 Rose, 89; Brock- 
 431. See, also, Hesketh v. Blanchard, way v. Burnap, 16 Barb. 309; Pierson 
 4 East, 144 ; Smith v. Watson, 2 B. & v. Steinmyer, 4 Ricli. L. 309 ; Loomis 
 C. 401, of a broker paid by a share of v. Marshall, 12 Conn. 69; Turner v. 
 profits in lieu of commission; Barry Bissell, 14 Pick. 193; Miller v. Bart- 
 V. Neshara, 3 C. B. 641, a seller of a let, 15 S. & R. 137; Lord v. Proctor, 
 business guarantying certain profits 7 Phila. 630; Irwin v. Bid well, 72 Pa. 
 to the buyer, but to have all above St. 344. The fullest examination of 
 that himself ;£'a;par/eGellar, 1 Rose, the old cases will be found in East- 
 297. For the modern law, see § 00. man v. Clark, 53 N. H. 276. A very 
 
 3 Dry V. Boswell, 1 Camp. 329, of a neat resuvii 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. Intention. — 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.^ 
 
 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 r. Woodruff, 63 Ala. 4665. 
 Marks v. Stein, 11 La. Ann. 509; Tayloe u Bush, 75 id. 433. 
 
 Kerru. Potter, 6 Gill, 401; Redding- spooley v. Driver, 5 Ch. D. 458; 
 
 ton V. Lanahan, 59 Md. 429; Gill u. Ex parte Delhasse, 7 id. 511; Moore 
 
 Kuhn, 6 S. & R. 383. 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. 302; Bloomfield v. Bush, 45 Midi. 188, 194 (40 Am. Rep. 
 Buchanan, 13 Oregon, 108; Ryder v. 465); Manhattan Brass & Mfg. Co. v. 
 Wilcox, 103 Mass. 24, 27; Greenham Sears, 45 N. Y., 797 (0 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, 372 ; 
 are not in question will be liberally Stevens v. Gainesville Nat'l Bank, 62 
 construed in reference to the actual Tex. 499, 503 ; Duryea v. Whitcomb, 
 understanding of the parties and the 31 Vt. o9.j; Rosentield v. Haight, 53 
 purposes they had in view. Hitch- Wis. 260. 
 
 ings V. Ellis, 12 Gray, 449, 452 ; and 
 Vol. 1 — 2 17
 
 g 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 iutentioii. — It is impos- 
 sible to lay down any absolute rule to .-ascertain the presence 
 of an intention to create a partnership. The earliest of the 
 modern English cases, Cox v. Hickman, sugf^ests 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 Cleasby, in Holme v. Hammond/ 
 saj's: "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 than 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 latter s con- 
 
 1 Oliver u Gray, 4 Ark. 425 ; Dwi- gestcd by Cleasby, B., Holme v. 
 
 nel V. Stone, 30 Me. 384; Sailors v. Hammond, L. R. 7 Ex. 218, 233: — if 
 
 Nixon-Jones Printing Co. 20 111. A. puts in tlie capital, and B. and C. 
 
 App. 509; McDonald v. Matney. 83 are to carry on the business in their 
 
 Mo., 358, 3%; Livingston v. Lynch, own names, A. not to appear at all, 
 
 4 Johns. Ch. 573, 592. or interfere, or buy or sell, or sign 
 
 ^Agency was also adopted as the negotiable paper, here there is no 
 
 test in Kdsliaw v. Jukes, 3 Best &Sm. agency, although a person becoming 
 
 847; Bulleri v. Sharp, L. R. 1 C. P. 86; aware of tlie dormant partner, but 
 
 In re English and Irish Church, etc. not of the limitation upon his au- 
 
 Assur. Soc. 1 Plen & M. 85. Agency thority, could bind the firm by deal 
 
 is not a perfect test, for parties may ing with him. 
 
 bo partners inter se because they so * 5 Ch. Div. 458. 
 
 intend, although one is deprived of * L. R. 7 Ex. 218. 
 
 all authority, as in the case sug- • 
 
 18
 
 TESTS OF A PARTNERSHIP. § 19. 
 
 sent, bankruptcy, insolvency, death or assignment; and conversely, 
 if lie 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 of 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 liar- 
 ble as partners ? The judges in the exchequer chamber were equally 
 divided. Of the lords, composed of the Chancellor (Cami)bell), 
 Cran worth and Wensleydale, 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 Cranworth, Avho 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 couclusive, evidence that the trade in which the profits have 
 
 >8H. of L. Cas. 268 (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 b}^ 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 Wensletdale 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 a piece 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 
 
 Js. C. as Wheatcroft v. Hickman, Scac, which afHrmed the Common 
 9 C. B. N. S. 47 ; reversing Hickman Pleas in 18 C. B. 617. 
 V. Cox, 3 C. B. N. S. 533, in the Cam. 
 
 20
 
 TESTS OF A PARTNERSHIP. § 21. 
 
 completion of the buildings, and all were liable to the vendors for 
 the purchase money. The timber bought of plaintiif 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 & Wyun's, and if the proceeds should be in- 
 sufficient to repay Jukes he was to be a loser, and he gave no 
 authority to Till & Wynn to order timber on bis account. Black- 
 BUiiH, 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 similar 
 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. R. 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. Blackbukx, J., says that the trustees taking the profits 
 
 21
 
 § 22. NATURE AND FORMATION. 
 
 as a reserve fund to meet the emergencies o-f the business, and not 
 causing the business to be carried on for 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. Bramwell, 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? " 
 " If 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 Mollwo, 
 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 with 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 i)aid off, and should also pay him twelve 
 per cent, interest on the debt. In fact the rajiih 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. 
 
 iThis case was followed in Ex j^'frte Tennant, G Ch. D. 303. 
 
 22
 
 TESTS OF A PARTNERSHIP. § 22. 
 
 Sir Montague Smith, rendering the decision of tlie 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 which had been supposed to exist, and laid 
 down principles of decision by which the determination of cases of 
 this kind is made to 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 Zd. 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. Hickman 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 is an actual partner inter se, the 
 case of holding out of course apart. 
 
 This doctrine is announced as the law in the followino- 
 cases, which will be examined seriatim^ with a simplified 
 statement of the facts of each; for in some of them the 
 court has seized 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 $10,000, 
 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, 
 13 not contrary to the modern law. 
 
 In re Francis, 2 Sawy. 286; s. c. 7 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, 136 (U. 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 Culley 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 PARTNERSHIP. §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 and adopt 
 the doctrines of Cox v. Hickman and the other later English cases, 
 th 3ugh the question in the case was inter se and not as to third 
 persons. 
 
 In Le Levre v. Castagnio, 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 untij repayments. This was held not to be a partnership inter se 
 or as to third persons. 
 
 In Vinson v. Beveridge, 3 MacArthur (D. C), 597, 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 be 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 pai't in the business. 
 
 lln 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 tlie facts of 
 nership, held not absolute; the inten- this case see § 48. 
 tion governs; and here there being 
 
 25
 
 § 23. NATURE AND FORMATION. 
 
 This, with other evidence, was deemed to show a partnership; but 
 as the judgment was reversed because some of tlie 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. Lalitte, 30 La. An. Part I, 031 (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 (10 Am. Rep. 465), it was held 
 that where a person hires a hotel from 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 deception. The court (Cooley, J., pp. 200- 
 202) approve the late English decisions to the full extent, and say 
 that the elements of partnership are communit}'^ 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. Farrell, 88 Mo. 504 (1888), 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 $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 Colvvell v. Brittou (Mich.), 26 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 affairs, and the one- half the proceeds to be paid him was 
 merely compensation.' 
 
 In Parchen v. Anderson, 5 Montana, 438 (1885), N. let two parfc- 
 D:'rs, 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 X." 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 shtir- 
 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, 58 
 N. Y. 272, 281 (17 Am. Rep. 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. v. Walker, 6Q 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, 332, 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 third 
 
 Waugh V. Carver (§ 16) was said to persons. Thus the opinion denies 
 
 be bad law, both in England and this Cox v. Hickman and ailoptsit in full 
 
 country. immediately afterwards. 
 
 2 The same statement was again 
 
 27
 
 § 23. NATURE AND FORMATION. 
 
 •430, Allen, J., said that to constitute a partnership as to tliird 
 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 profits 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, 18 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 trader 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 money's 
 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, 
 and, therefore, not liable on a subsequent note made by Brundred 
 
 iln Richardson v. Ilughitt, 76 N. Fowler, 87 id. 33 (41 Am. Rep. 343), 
 
 Y. 55 (33 Am. Rep. 267), where tlie (aff'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. Robertaon, 40 Hun, 166. 
 
 28
 
 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 Bruudred & Son. 
 
 In Harvey v. Childs, 28 Oh. St. 319 (23 Am. Rep. 387), P. had 
 contracted for two car loads of hogs and agreed that if C. would 
 lend him money enough to pay for them and others, enough to 
 make up two car loads, C, could take possession as securit}', sell 
 them and keep one-third of the net profits, but the money was to 
 be repaid in full in case the proceeds were insufiicieut, so that C. 
 should have no loss. There was a loss, but P. repaid C. in full, but 
 had not paid for the hogs, aad the vendor sued C. for the price, and 
 the arrangement was held not to 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 
 lender 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, etc. 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 in- 
 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 
 
 Is. p. also Irwin v. Bidwell, 72 Pa. ceive a share of profits and a sum 
 St. 244, and Lord v. Proctor, 7 Fliila. equal to a share of profits seems to be 
 630; but iu Pennsylvania the old dif- recognized. Lord v. Proctor, 7 Phila. 
 fereuce between an agreement to re- 630 ; Irwin v, Bidwell, 72 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 Bnzard v. First Nat. Bank (Tex. 1886), 2 S. W. Rep. 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 prif^es 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 was held that 
 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. Va. 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 wJiich C. and the trustee, Vv^., 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 pa3^ableto VV. 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. Plickman 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 PARTNERSHIP. § 24. 
 
 trol over 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'^t^m, 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, aud 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 be given; for even if the 
 vast mass of cases were 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 will be considered in the following principal 
 
 classes: 
 
 I. Where the agreement is to share both profit and loss. 
 
 1 To tlie 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 wert- decided while Cox old stock, this was held not to make 
 
 V. Hickman was pending in the assenting creditors partners therein, 
 
 house of lords. the power to purchase being only as 
 
 In MuuLson ?;. Peck, 18 Up. Can. absolutely necessary aud not to make 
 
 Q. B. 113, tru.stees under an assign- money, 
 ment for the benefit of creditors, 
 
 31
 
 g 26. 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. 
 
 rV. 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. Witlr 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 liis 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, ^. ?., 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 
 
 I See Mooie v. Davis, 11 Ch, D. 201 ; v. Buutiii. 118 Mass. 279; Bohrer v. 
 
 In re Warren, 2 Ware, C. C. 322; Drake, 33 Minn. 408; Priest u. Chou- 
 
 Felichy v. Hamilton, 1 Wash. C. C. teau, 13 Mo. App. 253 (aff. 85 Mo. 
 
 491; Scott V. Campbell, 30 Ala, 728; 398); Cumpston v. McNair, 1 Wend. 
 
 Meaheru. Cox, 37 Ala. 201; Autrey 457; Smith v. Small, 54 Barb. 223; 
 
 V. Frieze, 59 id. 587 ; Laffau v. Naglee, Arguimbo v. Hillier, 17 Jones & Sp. 
 
 9 Cal. 663; Solomon v. Solomon, 2 253; 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, 16«); Aultnian v. ley v. Rice, 18 Tex. 481, 496; Duryea 
 
 Fuller, 53 Iowa, 60 (in effect revera- v. Whitcomb, 31 Vt, 395; Chapman 
 
 ing Iliff V. Braz.ll, 27 id, 131); Star- V. Wilson, 1 Rob, (Va.) 267. 
 buck V. Shaw, 10 Gray, 492 ; ^ cm i by 
 
 33
 
 TESTS OF A PARTNERSHIP. §27. 
 
 severance until final accounting, and they relied on the proceeds 
 and property for reimbursement aud not on individual credit." 
 
 That a certain class of losses is not to be divided makes no differ- 
 ence; thus, where two steamboat owners agreed 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, one 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 w^here 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. Whitcomb, 31 Vt. strong presumptive evidence of a 
 395. partnership, but conclusive of it. 
 
 2 Mealier v. Cox, 37 Ala. 201. * Morse v. Richmond, 97 111. 303 
 
 3 Scott V. Campbell, 30 Ala. 738. (affirming 6 III. 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. 1 — 3 33
 
 § 28. NATURE AND FORllATION. 
 
 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 emplo3'ment.' 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 stock 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, 12 W. Va. 730. 'Pawsey v. Armstrong, 18 Ch. D. 
 
 2 Belknap v. Wendell, 1 Foster (21 698 (doubted in Walker v. Hirsch, 27 
 N. H.), 175. id. 460); Emanuel v. Draugliu, 14 
 
 3 Marsh v. Russell, 66 N. Y. 288. Ala. 303; Couch v. Woodruff, 03 Ala. 
 ^Bulfinchu.Winchenbach, 3Allen, 466; Clark v. Gridley, 49 Cal. 105; 
 
 161. Pierce v. Shippee, 90 111. 371 ; Kuhn 
 
 5 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 underwriters agreeing to Allen, 21 Mo. 123; Mulhall r. Cheat- 
 share profit and loss of their busi- ham, 1 Mo. App. 476 ; Tyler v. Scott, 
 nesses; s. P. Shubrick v. Fisher, 2 45 Vt.. 261; Sprout v. Crowley, 30 
 Desaus. 148. Wis. 187. 
 
 6 Green v. Beesley, 2 Bing. N. Gas. 
 108. 
 
 84
 
 TESTS OF A Partnership. § 2j>. 
 
 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., nor 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.^ 
 
 § 2\). Sharing profit and loss when not a partnership. — 
 
 But an agree nieiifc to share profit and. loss does not abso- 
 lutely constitute a partnership as a conclusion of law. If 
 other circumstances show that no partnership was intended 
 or created they will control.^ A conspicuous example of 
 this is whqre 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 attempted 
 
 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 ; Chaffraix 
 
 2Pierce V. Shippee, 90 111. 371. v. 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 
 
 4 Bullen V. Sliarp, L. R. 1 C. P. 86 this point was shaken on the affirm- 
 {supra, ^ 21) ; Kilshaw v. Jukes, 3 Best ance of the case in 4 Abb. App. Dec. 
 & Smith, 847 [supra, § 20) ; Ex parte 274. 
 
 Delhasse, 7 Ch. D. 511, 521 ; Walker 
 
 85
 
 § 20. 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 sura 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, the}' 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 were 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- 
 2Fawcett v. Osborn, 33 111. 411. It third the losses, and to attend to the 
 is not certain whether tlie 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. 4S3. partnership inter se, but that it is a 
 3Snell V. De Land, 43 III. 323. question of intention, each case to 
 * Monroe V. 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. Matuey, 82 Mo. 
 350; Ashby v. Shaw, 82 Mo. 76. la 358. 
 
 one case B,, the owner of a bank, 6 Clifton v. Howard, 89 Mo. 193. 
 
 36
 
 TESTS OF A PARTNERSHIP. § 29. 
 
 and one-lialf 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 interest 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 Y. 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 V. and 
 X., paying all expenses and to sell no other goods, and to receive a 
 coDimission equal to one-half the net profits on sales, and pay one- 
 half 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 probably 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, whether 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 t). Tracy, 62 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 be liable " sharing the profits and 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. 398, 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
 
 § 30. NATURE AND FORMATION. 
 
 was no agreement for partnersliip, 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.' 
 
 n. 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 differ- 
 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, 5G 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 each 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 there 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 partnershij"), 
 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.^ 
 
 1 Bromley v. Elliot, 38 N. H. 287, Beecher v. Bush, 45 Mich. 188, 195 
 304; and see Parker v, Canfield, 37 (40 Am. Rep. 465). 
 Conn. 250, 267 (9 Am. Rep. 317) ; 2 Quackenbush v. Sawyer, 54 CaL 
 
 39
 
 § 32. NATURE AND FORMATION. 
 
 § 32. Illnstrations of true partnerships. — W. contributed 
 a steamboat to T., to be pat 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 officers and crew; 
 but W. was to appoint the clerk and -disbursing officer, and the re- 
 ceipts were to be applied in the following order: Expenses, insur- 
 ance $6,000, to W.; $300 to T.; balance to be equally divided. 
 This was held to 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 bu,y land 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 iiiter 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. G99. 
 
 Me. 452, 5 Marks v. Stein, 11 La. Ann. 509; 
 
 1 Ward V. Thompson, 22 How. 330, and see Everitt v. Cliapmau, G Conn, 
 
 aff'g Newb. 95. 347. 
 
 - Yeoman v. Lasley, 40 Oh. St. 190 ; g Sankey v. Columbus Iron Works, 
 
 Hulett V. Fairbanks, 40 id. 233; Can- 44 Ga. 238, So if one furnishes the 
 
 ada i;. Barksdalo, 76 Va. 899; Brink- mill and the other the timber; for 
 
 ley u. Harkins, 48 Tex. 225; Russell there is a community of interest 
 
 V. Grocn, 10 Conn. 269, of lumber in the sawed lumber. Jones v. 
 
 so bought. McMichael, 12 Rich, L, 176. 
 
 3 Fisher v. Sweet, 67 Cal, 228. 
 
 40
 
 TESTS OF A PARTNERSHIP. g 32. 
 
 vest 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, assigning to each specific departments of duty ^nd 
 providing that each shall receive a stated salary, but saying noth- 
 ing about either profit or loss, it is a partnership inter se.^ 
 
 An a2:reement between A. and B. that B. should furnish a 
 vessel and cargo, and A. should take charge and prosecute avoyage 
 at monthly wages of ^50 and one-fifth interest in the voyage and 
 should furnish $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 
 invested 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, constitutes 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 name, are partners infer 
 se, so that a suit for an accounting by one against the other will 
 
 lie.» 
 
 By an agreement between W. and R., 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 
 
 iMillu. Sheibly, 68 Ga. 556. firmed in Barrett v. Swanu, 17 id. 
 
 2 Richards v. Grinnell, 63 Iowa, 180 (32 Am. Dec. 223). 
 44; 50 Am. Rep. 727. •» Julio v. Ingalls, 1 Allen, 41. 
 
 3Doak V. Swarin, 8 Me. 170; af- 5Staplesu Sprague, 75 Me. 458. 
 
 6Heise v. Bartli, 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 Jet 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 one 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.'a 
 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. Buffum, 23 Vt. 181 ; 54 
 
 2Someiby v. Buutin, 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 the 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 partiiersliip 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 and 
 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 $iOO, 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 
 
 2Goddard v. Pratt, 16 Pick. 413, true partnerships, but I classify them 
 
 426; Pinkerton v. Ross, 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; PJumer v. Lord, 7 Allen, 5 Tyler v. Scott, 45 Vt. 201. 
 
 481 ; Tyler v. Scott, 45 Vt. 261 ; Voor- 6 Brigham v. Clark, lOO Mass. 430. 
 
 hees V. Jones, 29 N. J. L. 270. '^Peltee v. Appleton, 114 Mass. 114. 
 
 43
 
 § 33. NATURE AND FORMATION, 
 
 H. & L., a ruannfacturing 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, that they should share 
 in the profits from that date. The joint stock company Avas 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 secret agreement avoided common ownership in 
 the stock and personal liability for engagements.' 
 
 A. contributed a foundry at a rental 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 pajnng 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. affiriued ou other grounds in 11 N. Y. 
 
 2 Bromley v. Elliot, 38 N. H. 287. 441. 
 
 8 Van Kuren v. Trenton Locomo- 8 Wilkes V. Clark, 1 Dev. L. 178. 
 
 tive & Mach. Mfg. Co. 13 N. J. Eq. 303. 
 
 44
 
 TESTS OF A PARTNERSHIP. § 33. 
 
 A contract was held to constitute a partnership /^f^r 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 labor, 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 ofl&ce, 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, 206. 
 
 2Lyuch V. Thompson, 61 Miss. 354. InCumpston v. McXair, IWend. 457, 
 * Appleton V. Smith, 24 Wis. 331. two persons jointly owning salt 
 
 45
 
 § 35. NATURE AND FORMATION. 
 
 §34. Where one funiislies all tlie 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. 
 
 And 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 acconnt 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 hoth 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, iu other words, both are principals. 
 This rule is, however, imperfect, since the difficulty some- 
 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. Greenliam was to work it, 
 to have ''full and absolute control," to employ 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 
 with the goods, C. to travel about there and sell, B. to receive a 
 
 1 Per Jessel, 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 r. Gray, 4 Irish Com. 
 
 wood V. Doane, 107 111. 285; Ryder L. 501. 
 
 V. Wilcox, 103 Mass. 24, 27 ; Ee 3 Bigelow v. Eliot, 1 Cliff. 28. 
 Francis, 2 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 $25i, which L. agrees to invest in 
 cattle, feed them, and in a 3^ear sell them, the cattle to belong to 
 R. until the money is repaid, profits to be equall}'' divided; L. guar- 
 antying that R.'s profits shall not be less than twenty per cent., 
 this was held to be a true partnei'ship 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 oysters 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 of 
 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 Avhere S. gave N. S300 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 in 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 
 
 iBucknamv. Barnum, 15 Conn. 67. J. Eq. 614, but this point is not af- 
 
 2Robbins v. Laswell, 27 III. 365. ' fected thereby. 
 
 3 Bearce v. Washburn, 43 Me. 564 ; » Lengle v. Smith, 48 Mo. 276. 
 
 Wi-'ght V. Davidson, 13 Minn. 449. 6Biinkley v. Harkins, 48 Tex. 225. 
 
 ^Ruckman f. Decker, 23 N. J. Eq. T Newbiau v. Snider, 1 W. Va, 
 
 283. The case was reversed in 28 N. 153. 
 
 48
 
 TESTS OF A PARTNERSHIP. § 3G. 
 
 make certain repairs and to run tlie mill, the lumber 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 reut, 81. To 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 
 atd boy for a corn-shelling machine, the other to go around with 
 the machine and do the Avork, 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-ownersliip of the Tbiisiuess. — 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 and 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 whisk}^ 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. 602. 
 
 a Gilbanky. Stephenson, 31 Wis. 593. ^Holt v. Kernodie, 4 Ired. L. 199. 
 Vol. I — 4 49
 
 § 3G. 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, avIio 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 iijterest 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-ia-law could work, them for five years, he and the}'' 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 his 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 representative 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 daring 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, 27 AVis. 261. See 
 
 zProuty V. Swift, 51 N. Y. 594. Dwiuel v. Stoue, 30 Me. 384 (g 37). 
 
 SLogie V. Black, 24 W. Va. 1. 6Atherton v. Tilton, 44 N. H. 452. 
 
 <Bull V. Schuberth, 2 Md. 38. "Chase r. Barrett, 4 Paige, 148. 
 
 50
 
 TESTS OF A PARTNERSHIP. § 37. 
 
 R. Co., reciting that fhey 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 proportiou 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 F. 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 sp.. 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,^ G., 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 
 
 iCassidyu. Hall, 97N. Y., 159. Shaw, 82 Mo. 76; Newberger v. 
 
 2 Stevens u. Faucet, 24 111. 483. See Fields, 23 Mo. App. 631; Conklin v. 
 
 the same partnership, Fawcett V. Os- Barton, 43 Barb. 435; Voorhees v. 
 
 born, 33 id. 411. Jones, 29 N. J. L. 270; Kellogg v. 
 
 • Dwinel v. Stone, 30 Me. 384; Bra- Grisvvold, 12 Vt. 291 ; Clark v. Smith, 
 
 ley V. Goddard, 49 id. 115; Tharp v. 52 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. 
 
 63 Mo. 242; SO id. 350; Ash by v. 6 49 Me. 115. 
 
 51
 
 § 3S. NATURE AND FORMATION. 
 
 G. was entitled to take it at the price. This was held not to con- 
 stitute a partnership i7iter 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 F. 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 not 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 Avas 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 in the estate, would be unmeaning; and the clause 
 
 153 vt. 529. 429; and see Whitney v. Ludington, 
 
 2Autrey v. Frieze, 59 Ala. 587; 17 Wis. 140. 
 Farmers' Ins. Co. v. Ross, 29 Oh. St. 3 11 Ch. D. 2G1. 
 
 53
 
 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 mannging 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 the 
 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 wliicli eacli 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. Ei-ikson, 57 Mich. 330. 847 (§ 20), is somewhat of this kind. 
 
 3 Meador 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, devoting 
 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 work 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 yard 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 sa}' 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 time or expenses, and A. to peddle or sell the same with- 
 
 1 13 Conn. 69; 30 Arn. Dec. 596. See, (§ 29), where the agreement was to 
 also, Kellogg v. Griswold, 13 Vt. 391 ; share profit and loss, 
 also, Fawcett v. Osborn, 33 111. 411, 2 Flint v. Marble Co. 53 Vt. 669. 
 and Stevens v. Faucet, 24 id. 483 a Clement v. Hadlock, 13 N. H. 185. 
 
 * Denny v. Cabot, 6 Met. 83. 
 64
 
 TESTS OF A PARTNERSHIP. § 40. 
 
 out charge for tirae or expenses; eacli to pay half the expense of 
 extra work, wool and wear of machinerj'-, and the proceeds, less cost 
 of work, to be divided. This was held not to be a partnership; the 
 court saj'ing 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 610,000 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, F. to manufacture them, T. 
 & Co. to sell and pay him the profits, kss 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 of 
 B. 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 be evidence of a partnership. 
 Whether the contract is to be construed as providing such a 
 fund depends often upon the length of the chancellor's foot, jj 
 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 Mason v. Potter, 26 Yt. 723. 3 Judson v. Adams, 8 Cush. 556. 
 
 2 Eshleman v. Harnish, 76 Pa. St. * Turner v. Bissell, 14 Pick. 192. 
 97. SHitchings v. Ellis, 12 Gray, 449. 
 
 55
 
 § 40. NATURE AND FORMATION. 
 
 years at §10 per tou, thej^ to proricle suitable building and machin- 
 ery, to be paid for out of tbe 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 ?old the corn to M., because he had no interest in the 
 profits while they were accruing, and the contract is one for 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. G. advanced money to pay land, D. to make all sales, and 
 
 1 Wadsworth v. Manning, 4 Md. 59. < Pratt i\ Langdon, 97 Mass. 97; 12 
 s Kelly V. Gaines, U Mo. App. 506. Allen, 546. 
 » Meyers v. Field, 37 Mo. 434. 
 
 56
 
 TESTS OF A PARTNERSHIP. § 42. 
 
 after return of tlie purchase money and paying expenses and costs, 
 the net profits were to be divided. Tliis contract is consistent with 
 either a partnership or an employment. The referee having found 
 it to be the latter, the court affirmed the finding.' 
 
 § 41. Services 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 that the 
 latter shall enter, locate and survey them for a share 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 C'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.^ 
 
 § 42. 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, 26 Ind. 
 592. 158. 
 
 2 Morrison v. Cole, 30 IMich. 102. 5 Dale v. Pierce, 85 Pa. 474. 
 'Muzzy V.Whitney, 10 Johns. 226. 6 Wilkinson v. Jett, 7 Leigh (Va.), 
 *McArthur t>. Ladd, 5 Oh. 514; 115; 30 Am. Dec. 493. 
 
 57
 
 g 42. NATURE AND FORJtIATION. 
 
 tioii 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 Avheat. 
 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 means furnished by him and his compensation, to apply 
 the surplus to the debt. This was held not to be a partnership 
 inter se.^ 
 
 Parties to whom B. was indebted were 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 profit and loss, and 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. 2G8 lake, 23 Minn. 383, where one part* 
 {supra, 55 19). ner agreed to pay out of pi-ofits the 
 
 2 Johnson v. Miller, 16 Oh. 431. deht owed by a tliird person to the 
 
 3 Dils V. Bridge, 23 W. Va. 20. firm. Such person is not made a 
 < Clark V. McKellar, 12 Up. Can. C partner as sharing profits. 
 
 P. 563. 6 Wills V. Simmonda, 51 How. Pr. 
 
 8 Drake v. Ramey, 3 Rich. L. (S. 48 ; S. C. 8 Hun, 189. 
 Ca.) 37 ; and see Delaney v. Timber- 
 
 58
 
 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 salary 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 contract 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.^ 
 
 i Stettauer v. Carney, 20 Kan. 474. 
 
 2Regina v. McDonald, 7 Jur. N. S. 
 1127 ; 31 L. J. M. C. 67 ; Geddes v. 
 Wallace, 2 Bligh, 270 ; Pott v. Eyton, 
 3 C. B. 33; Rawlinson v. Clark, 15 M. 
 & W. 292; Stocker v. Brockelbank, 3 
 Mac. & G. 250 ; Ross v. Parkyns, L. 
 R. 20 Eq. 331 ; Berthold v. Goldsmith, 
 24 How. 536 ; Seymour v. Freer, 8 
 Wall. 202, 215; Be 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 v. Shep- 
 perd, 3 Ala. 733 ; Hodges v. Dawes, 
 6 Ala. 215; Moore v. Smith, 19 Ala. 
 774; Dillard v. Scruggs, 36 Ala. 670; 
 Randle v. State, 49 id. 14 ; Tayloe v. 
 Bush, 75 id. 432 ; Olmstead v. Hill, 
 3 Ark. 346; Christian v. Crocker, 
 
 25 Ark. 327; Hanna v. Flint, 14 Cal. 
 73; Darrow v. St. George, 8 Colo- 
 rado, 592; Pond v. Cummins, 50 
 Conn. 372 ; Sankey v. Columbus Iron 
 Works, 44 Ga. 228 ; Stevens v. Fau- 
 cet, 24 111. 483 ; Porter v. Ewing, 24 
 
 id. 617; Fawcett v. Osborn, 32 id. 
 411 ; Burton v. Goodspeed, 69 id. 237; 
 Macy V. Combs, 15 Ind. 469; Ells- 
 worth V. Pomeroy, 26 id. 158; Em- 
 mons V. Newman, 38 id. 372 ; Keiser 
 V. State, 58 id. 379; Heshion v. Ju- 
 lian, 82 Ind. 576; Price v. Alexan- 
 der, 2 G. Greene (Iowa), 427; 52 
 Am. Dec. 526 ; Reed v. Murphy, 2 G, 
 Greene (Iowa), 574; Ruddick v. Otis, 
 33 Iowa, 402 ; Holbrook v. Oberne, 56 
 Iowa, 324; Shepard v. Pratt, 16 Kan. 
 209; Heran v. Hall, 1 B. Mon. 159; 
 Bulloc V. Pailhos, 20 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; Chaff raix v. Price, 
 id. 176; Maunsell v. Willett, 36 id. 
 322; Halliday v. Bridewell, 36 id. 
 238; Dwinel v. Stone, 30 Me. 384; 
 Weems v. Stalliugs, 2 Har. & J. 365 ; 
 Kerr v. Potter, 6 Gill, 4U4 ; Bull v. 
 Schuberth, 2 Md. 38; Benson v. 
 Ketchum, 14 id. 331 ; Crawford v. 
 
 59
 
 §43. 
 
 NATURE AND FORMATION. 
 
 !N"or 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, 
 52 id. 173, 192-3; Reddington v. Lan- 
 ahan. 59 id. 429 ; Whiting v. Leakin, 
 66 id. 255; Blanchard v. Coolidge, 23 
 Piclc. 151 ; Judson v. Adams, 8 Cush. 
 556; Baxter v. Rodman, 3 Pick. 435; 
 Bradley v. White, 10 Met. 303; 43 
 Am. Dec. 435 ; Denny v. Cabot, 6 
 Met. 82; Buck v. Dowiey, 16 Gray, 
 555; Hohnes v. Old Colony R. R. 5 
 Gray, 58, GO; Emmons v. Westfield 
 Bank, 97 Mass. 230; Haskinsu War- 
 ren, 115 id. 514; Commonwealth v. 
 Bennett, 118 id. 443; Partridge v. 
 Kingman, 130 id. 476: Morrison v. 
 Cole, 30 Mich. 102 ; Wiggins v. Gra- 
 ham, 51 Mo. 17; State 7). Donnelly, 
 
 9 Mo. App. 519; Gill v. Ferris, 82 Mo. 
 15G, 167; Mason v. Hackett, 4 Nev, 
 420; Clement v. Hadlock, 13 N. H. 
 185; Newman v. Bean, 21 id. 93; 
 Atherton v. Tilton, 44 id. 452; Nut- 
 ting v. Colt, 7 N. J. Eq. 539; Har- 
 grave v. Conroy, 19 id. 281 ; McMa- 
 hon u. O'Donnell, 20 id. 306 ; Smith 
 V. Perry, 29 N. J. L. 74 ; Voorliees V. 
 Jones, 29 id. 270; Muzzy v. Whitney, 
 
 10 Johns. 22G; Vanderburgh v. Hull, 
 20 Wend. 70; Chase v. Barrett, 4 
 Paige, 148; Burckle v. Ec-kart, 1 
 Den. 337 (aff'd 3 Den. 279; 3 N. Y. 
 132); Ross v. Drinker, 2 Hall, 415; 
 Mohawk R. R. v. Niles. 3 Hill, 162; 
 Hodgmnn v. Smith, 13 Barb. 302; 
 Brorkway v. Burnap, 16 id. 309 (12 
 id. 347); Clark v. Gilbert. 32 id. 576; 
 Conklin v. Barton, 43 id. 435; Lamb 
 V. Grover, 47 id. 317; Merwin v. Play- 
 ford, 3 Robt. 702; Strong v. Place, 4 
 id. 3'^5 '51 N. Y. 627) ; Leonard v. New 
 York Tel. Co. 41 N. Y. 544; Lewis v. 
 Greider, 51 id. 231 (aflf. 49 Barb. 605); 
 Osbrey v. Reimer, 51 N. Y. 630 (aflf. 
 49 Barb. 265); Prouty v. Swift, 51 N. 
 
 Y. 594; Smith v. Bodine, 74 id. 30; 
 Moore v. Huntington, 7 Hun, 425; 
 Butler V. Finck, 21 id. 210; Beudel 
 V. Hettrick, 45 How. Pr. 198; 3 Jones 
 & Sp. 405; McArthur v. Ladd, 5 Oh. 
 514; Johnson v. Miller, 16 id. 431; 
 Ditsohe v. Becker, 6 Phila. 170; 
 Blight V. Ewing, 1 Pittsb. 275; Miller 
 V. Bartlet, 15 S. & R. 137; Raiguel'3 
 Appeal. 80 Pa. St. 234 ; Dale v. Pierce, 
 85 id. 474; Potter v. Moses, 1 R. L 
 430; Bentley v. Harris, 10 id. 434; 
 Simpson v. Feltz, 1 McCord, Ch. 213; 
 Dowry u. Brooks, 2 McCord, L. 421; 
 Bartlett v. Jones, 2 Strob. L. 471 (47 
 Am. Dec. 606); Norment v. Hull, 1 
 Humph. 320; Bell v. Hare, 12 Heisk. 
 615; Whitworth v. Patterson, 6 Lea, 
 119, 124; Goodey. McCartney, lOTex. 
 193 ; Bradshaw v. Apperson, 3G id. 133; 
 Cothran v. Marmaduke, 60 id. 370; 
 Grabenheimer v, Rindskoff, 64 id. 
 49; Boardman v. Keeler, 2 Vt. 65; 
 Ambler v^ Bradley, 6 id. 119; Kel- 
 logg V. Griswold, 12 id, 291; 
 Stearns v. Haven, 16 id. 87; Mason 
 V. Potter, 26 id. 722; Bruce v. Has- 
 tings, 41 id. S80, 384; Clark v. Smith, 
 53 id. 529; Hawkins v. Mclntire, 45 
 id. 496; Wilkinson v. Jett, 7 Leigh 
 (Va.), 115; 30 Am. Dec. 493; Dils v. 
 Bridge, 33 W. Va. 20; Sod;ker v. Ap- 
 plegate, 24 id. 411 ; 49 Am. Rep. 252; 
 Ford V. Smith, 27 Wis. 261 ; Nicholaus 
 V. Thielges, 50 id. 491 ; Northern 
 R'y Co. V. Patton, 15 Up. Can. C. P. 
 332. 
 
 1 Hazard v. Hazard, 1 Story, 371; 
 Shaw V. Gait, 16 Irish Com. L. 357; 
 Berthold v. Goldsmith, 24 How. 536; 
 Re Francis, 3 Sawy. 286; 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 indefinite 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. 215; Loomis v. Marshall, 12 
 Conn. 69; Parker v. Fergus, 43 111. 
 437; Burton v. Goodspeed, G9 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. 30 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. 
 303; 43 Am. Dec. 435; Meserve v. 
 Andrews, 104 Mass. 360; 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 
 Deu. 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, 721; 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; 
 ExjMvteDighj, 1 Deac. 341; W'ith- 
 ington V. Herring, 3 Moo. & P. 30; 
 Miller v. Hughes, 1 A. K. Mar. (Ky.) 
 181; Taylor v. Terme, 3 Har. & J. 
 505 ; Rowland v. Long, 45 Md. 439 ; 
 Strader v. AVhite, 2 Neb. 348, where 
 
 the arrangement was a device; Mot- 
 ley r. 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. Heck man have since been adopted. 
 
 2 Wish V. Small, 1 Camp. 331 ; Lyon 
 V. Knowles, 3 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, 3 id. 427; 52 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. 1S8; 40 Am. Rep. 
 465; Thayer v. Augustine, 55 id. 187; 
 Ward V. Bodeman, 1 Mo. App. 272, 
 281 ; Campbell v. Dent, 54 Mo. 325 ; 
 Kellogg Newspaper Co. v. Farrell. 
 88 id. 594; Perrine v. Hankissou, 11 
 N. J. L. 181 ; Heimstreet v. How- 
 land, 5 Den. 68; Piuckney u Keyler, 
 4 E. D. Smith, 469 ; Johnson v. Mil- 
 ler, 16 01). 431 ; Dunham v. Rogers, 
 1 Barr, 255 ; Irwin v. Bidwell, 72 Pa. 
 St. 244, 251 ; Brown v. Jaquette, 94 
 
 61
 
 § iG. NATURE AND FORMATION. 
 
 persons, because of sharing the profits, for exactly the same 
 reasons that protect an employee so paid.^ 
 
 § 4:6. illustrations. — F. sued P. and X. as partners in an 
 
 opera house for work done in printing bills. P. denied lie 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 was 
 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 corn- 
 id. 113; 89 Am. Rep. 770; England 188; 40 Am. Rep. 465 (^ 23); Ward 
 V. England, 1 Baxter, 108; Tobias v. v. Boderaan, 1 Mo. App. 272, 281; 
 Blin, 21 Vt. 5U; 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; Cbaplineu Conant, Mo. 594 (§ 23); Heimstreet v. How- 
 3 AV. Va. 507; Haydon v. Crawford, land, 5 Den. 68; Dunham v. Rogers, 
 3Up. Can. Q. B. (oldser.)5S3;Hawley 1 Barr, 255; England v. England, 1 
 V. Dixon, 7 Up. Can. Q. B. 218; Great Baxter, 108; Felton v. Deall, 22 Vt. 
 Western R'y v. Preston & Berlin 170; Bowyer v. Anderson, 2 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 bilityas partners to third persons is 
 V. Fergus, 43 111. 437: Smith v. Van- thereby created. Buckner v. Lee, 
 derburg, 46 111. 34; Bridges v. 8 Ga. 2S5 ; Dalton City Co. u Dalton 
 SpraguG, 57 Me. 543 ; Reynolds v. Mfg. Co. 33 id. 243 ; Dalton City Co. 
 Toppan, 15 Mass. 370; Cutler v. r. Hawes, 37 id. 115. 
 Wiusor, 6 Pick. 335 ; 17 Am. Dec. 2 Parker v. Fergus, 43 111. 437. 
 385; Holmes v. Old Colony R. R. 5 3Keiserv. State, 58 Ind. 379. 
 Gray, 58; Beecher v. Bush, 45 Mich. 
 
 62
 
 TESTS OF A PARTNERSHIP. § 47. 
 
 pany does not become a partner thereby even as to third persons, 
 for the lessee pays all the bills, owns the supplies bought aad the 
 money taken in.* 
 
 The owner of a ferry leased it to F. for two years for $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 82,000 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 money at a 
 rate determinable by results and the use of services or prop- 
 erty, yet the fact that such compensation produced in the 
 fi.rst 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 onl}'- by the later decisions,* 
 
 1 Holmes v. Old Colony R. R. 5 Del. Ch. 198; Slade u Paschal, 67 Ga. 
 
 Gray, 58. 541; Niehoff 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 
 
 3 Grace v. Smith, 2 Wm. Bl. 998; v. Funk, 53 id. 219; Hefner v. Palmer, 
 
 Gilpin V. Enderbey, 5B. & Aid. 954; 67 id. 161; Smith v. Knight, 71 id. 
 
 Fereday V. Hordern, Jac. 144; Blox- 148; 22 Am. Rep. 94; Williams v. 
 
 ham V. Pell, 2 Wm. Blacks. 999. Soutter, 7 Iowa, 435; Bailey v. Clark, 
 
 * Pennsylvania also has such a stat- 6 Pick. 372 ; Gallop v. Newman, 7 id. 
 
 ute. Moore u. Walton, 9 Bankr. Reg. 282; Wall v. Balcom, 9 Gray, 92; 
 
 402; Be Francis, 2 Sawy. 286; 7 Buck v. Dowley, 16 id. 555; Rice v. 
 
 Bankr. Reg. 359 ; Re Ward (U. S. D. Austin, 17 Mass. 197 ; Emmons v. 
 
 C. Tenn. 1879), 8 Reporter, 136; Westfield Bank, 97 id. 230; Parchen 
 
 Swann v. Sanborn, 4 Woods, C. C. v. Anderson, 5 Montana, 438 ; Muzzy 
 
 625 ; Meehan v. Valentine, 29 Fed. v. Whitney, 10 Johns. 226 ; Osbrey v. 
 
 Rep. 276; Smiths. Garth, 32 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, 62 id. 508; Richard- 
 
 Am. Rep. 317 ; Plunkett v. Dillon, 4 son v. Hughitt, 76 id. 55 ; Eager v. 
 
 63
 
 §18. 
 
 NATURE AND FORIMATION. 
 
 but by a statute called Bovill's act. Nor are they partners 
 as to third persons.^ 
 
 § 48. illustrations. — M. furnislied 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 jpartners 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 of&ce 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, 
 72 Pa. St. 244 ; Hart v. Kelley, 83 id. 
 286; Eshlemau v. Harnish, 76 id. 97; 
 Boston, etc. Smelting Co. v. Smith, 
 13 R. I. 27; 43 Am. Rep. 3; Polk v. 
 Buchanan, 5 Sneed (Teuu.), 721; 
 Cooper V. Tappan, 9 Wis. 361 ; Mun- 
 sou /•. Hall,10GranfsCh.(Up.Cau.)61. 
 1 Bullen V. Sharp, L. R. 1 C. P. 80 ; 
 Ex parte Teunant, 6 Ch. D. 303; 
 Mollvvo, March & Co. v. Court of 
 Wards, L. R. 4 P. C. 419; Dean v. 
 Harris, 33 L. T. N. S. 639 ; Kelly v. 
 Scotto, 49 L. J. Ch. 383; 42 L. T. N. S. 
 827; Cully u. Edwards, 44 Ark. 423, 
 this was inter se, but the principles 
 laid down make it applicable to third 
 persons by abolishing the distinction 
 between partnerships inter se and as 
 to third persons. Le Levi-e v. Cas- 
 tagnio, 5 Colorado, 564. In Smith v. 
 Knight, 71 111. 148 (22 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, 
 
 433; Parchen v. Anderson, 5 Mon- 
 tana, 438; Richardson v. Hughitt, 76 
 N. y. 55 (32 Am. Rep. 267); Eager u. 
 Crawford, 76 id. 97 ; Curry v. Fowler, 
 87 id. 33 (41 Am. Rep. 343), affirming 
 14 Jones & Sp. 195 ; Cassidy v. Hall, 
 97 id. 159; Magovern v. Robertson, 
 40 Hun, 166; Harvey v, Childs, 28 
 Oh. St. 319; 22 Am. Rep. 387; Bos- 
 ton, etc. Smelting Co. v. Smith, 13 
 R. I. 27; 43 Am. Rep. 3; Polk v. Bu- 
 chanan, 5 Sneed, 721. — (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, 526; 
 Everett v. Coe, 5 Den, 180; Manhat- 
 tan Co. V. Sears, 45 N. Y. 797; Haas 
 V. Roat, 16 Hun, 526, aff'd 26 id. 632; 
 Leggett V. Hyde, 58 N. Y. 272 ; 17 
 Am. Rep. 244, aU'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. 372 
 (dictum); Pettee v. Appleton, 114 
 Mass. 114; Sheridan v. Medara, ION. 
 J. Eq. 469; Pierson v. Steinmeyer, 4 
 Rich. L. 309 ; Cothran v. Marmaduke, 
 CO Tex. 370, 373 ; but query, repudi- 
 ated in Buzard v. Fii-st Nat'I Bank, 2 
 S. W. Rep. 54, in full above. 
 2 Slade V. Paschal, 67 Ga. 541. 
 64
 
 TESTS OF A PARTNERSHIP. § 4s. 
 
 ners; aud the execution of tliis 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 
 F. 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 F. 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 theoi 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. 810,000, 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 iwo rata with other 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 Niehoff V. Dudley, 40 111. 406. 3 Eshleinau v. Harnish, 76 Pa. St. 97. 
 
 2 Smith V. Vauderburg, 4G 111. 34. See, also, Hart v. Ivelley, S3 Pa. St. 286, 
 
 Vol. 1 — 5 65
 
 §50. 
 
 NATURE AND FORMATION. 
 
 and trusted tliem as partners on the faith of it, it mip^ht have con- 
 stituted them such by hoklinj^ out.' 
 
 § 40. What is a loan.— The facfc, however, that the in- 
 terest expected or received is disproportionate and ths con- 
 tract usurions 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.* 
 
 1 Irwin V. Bidwell, 72 Pa. St. 244. 
 
 2 Pluukett V. Dillon, 4 Del. Ch. 198; 
 Richardson v. Hughitt, 76 N. Y. 55; 
 32 Am. Rep. 267 ; Cuiry v. Fowler, 
 87 id. 33 ; 41 Am. Rep. 343 (aflf. 14 J. & 
 Sp. 195); Irwin v. Bidwell, 72 Pa. 
 St. 244. Contra, Hargrave v. Conroy, 
 19 N. J. Eq. 28L 283; Oppenheimer 
 V. Clemmons, 18 Fed. Rep. 886. See 
 Brigham v. Dana, 29 Vt. 1, 8; Be 
 Francis, 2 Sawy. 286 ; 7 Bankr. Reg. 
 359 (§23); Parker v. Canfield, 37 
 Conn. 250 (9 Am. Rep. 317); in this 
 case C. 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 j^aid back in 
 
 tliree 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 partnei's. 
 
 This decision was doubted in Rich- 
 ardson V. Hughitt, 76 N. Y. 55 ; 33 
 Am. Rep. 267. 
 
 ^Ex parte Delhasse, 7 Ch. D. 511 ; 
 Pooley V. Driver, 5 Ch. D. 458; Har- 
 ris V. Hillegass, 54 Cal. 463; Wood 
 V. Vallette, 7 Oh. St. 172 ; Brigham 
 V. Dana, 29 Vt. 1, 7; Rosenfeld r. 
 Haight, 53 Wis. 260; 40 Am. Rep. 
 770. 
 
 *Ex parte Mills, 8 Ch. D. 569,
 
 TESTS OF A PARTNERSHIP. § 5'J. 
 
 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, but any excess of profits received during the terra 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 defendants were to receive a proportion of 
 profits in lieu of interest, 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 S3,000 per annum. As security for the 
 loan, H. was to have a lien upon all the property of the firm. N. 
 
 574-6 ; Bacleley 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 
 
 iug to the law of partnership except was in tlie above case, 
 to provide that on distribution the 2pooley u Driver, 5 Ch. D, 453. 
 creditors must be paid before the 
 
 67
 
 § 52 NATURE AND FORIMATION. 
 
 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 hira. H. was Jield 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. Y. 272, as being analogous.' 
 
 § 51. Executors or trustees as partuers. — 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 
 partner 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 reason of the executor's withdrawal, and the exec- 
 utor is entitled to a decree for dissolution.' 
 
 § 52. without 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 creditors, for he is not a principal, and the 
 surviving partners are not his agents, and the principles of 
 Cox V. Hickman apply,* even though he intentionally leaves 
 
 iRosenfeld v. Haight, 53 AVis. 260 sPigott v. Bayley, McCl. &Y. 569; 
 
 (40 Am. Rep. 770). Madgvvick v. Wimble, 6 Beav. 495; 
 
 2 Barker v. Parker, 1 T. R. 287; Downs u Collins, 6 Hare, 418; Page 
 
 Wightmanr.Townroe, IM. &S. 412; v. Cox, 10 id. 163; Edgar v. Cook, 4 
 
 Labouchere v. Tupper, 11 Moo. P. C. Ala. 588; Phillips v. Blatchford, 137 
 
 198; Ex parte Garland, 10 Ves. 110; Mass. 510; Berry v. Folkes, CO Miss. 
 
 In re Leeds Banking Co. L. R. 1 Cli. 57G, G13; Jacquinu. 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 apphed, altliougli an executor entered into 
 written articles of partnership with the surviving 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 ill the business. — But if the exec- 
 utor engages personally in the husiness, 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.) 263; 39 How. 
 
 129; Avery v. Myers, 60 Miss. 367; Pr. 82; Phillips v. Blatchford, 137 
 
 and see Brower v. Creditors, 11 La. Mass. 510, 514. 
 
 Ann. 117. 2 Owens v. Mackall, 33 Md. 382, 
 
 1 Holme V. Hammond, L. R. 7 Ex. 3 Citizens' Mut. Ins. Co. v. Ligon, 
 
 218; Price v. Groom, 2 Ex. 512; 59 Miss. 305, 314; Richter u Poppen- 
 
 Wild V. Davenport, 48 N. J. L. hausen, 42 N. Y. 373; Avery r. My- 
 
 129: Owens v. Mackall, 33 Md. 382; ers, CO Miss. 367; Owens v. Mackall, 
 
 Brastield v. French, 59 Miss. 032 ; 33 Md. 382. 
 
 Richter v. Poppenhausen, 42 N. Y. ■* Alsop v. Mather, 8 Conn. 584; 21 
 
 69
 
 § 54. NATUEE AND FORMATION. 
 
 A mere request to a dealer with tlie firm to contiune the fulfill- 
 ment of a contract for which the estate is already chargeable is not 
 taking 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 delivery under the contract to the surviving 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 lial)le 
 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. Otlier 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, 3 Gibson v. Stevens, 7 N. H. 352. 
 
 48 N. J. L. 129; Citizens' Mut. Ins. 4 Barklie v. Scott, 1 Huds. & Br. 
 
 Co, V. Ligon, 59 Miss. 305; Gibson v. 83. This case was approved in Owens 
 
 Stevens, 7 N. H. 352, 356. See Kreis v. Mackali, 53 Md. 382. 
 
 V. Gorton, 23 Oh. St. 468. » Miles v. Wann, 27 Minn. 56. Or if 
 
 1 Richter v. Poppenhausen, 42 N. he appears as the partner to the 
 Y. 373; 9 Abb. Pr. (N. S.) 263. world, Williams u. Rogers, 14 Bush, 
 
 2 Delanej 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, Avas represented by four shares, of which Slaney held two and 
 T. the other two, and T. agreed to sell his two shares to Slaney, 
 wlio, not having the money, procured Starr to buy them in his, 
 Slaney's, name, agreeing to repurchase from 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 is 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 will, 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, 22 Md. 58. instead. Goddard v. Hughes, 1 Cr. 
 
 2 Bloxham v. Pell, cited in 2 W. BI. & M. 33. 
 
 999; £'a;parie Chuck, 8 Bing. 469; Jji 3 Jones ij. Walker, 103 U. S. 444; 
 reColbeck, Buck, 48; Exj^arteJIam- Pitkin v. Pitkin, 7 Conn. 307; 18 Am. *: 
 per, 17 Ves. 403, 412; Bond v. Pit- Dec. Ill; Heighe v. Littig, 63 Md. 
 tard, 3 M. & W. 357. And where 301 ; Philips v. Samuel, 76 Mo. 657. 
 an executor was held to be a partner Contra, Naveu. Sturges, 5 Mo. App. 
 it was said that his cestuis que trust- 557. 
 
 ent could have been held as such < Jones v. "Walker, supra; Pitkin 
 
 V, Pitkin, supi^a. 
 71
 
 § 56. NATURE AND FORMATION. 
 
 m. SHARING PROFITS ^VITH STIPULATION AGAINST LOSSES. 
 
 § 5G. 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 contraoi; 
 being one of partnership if it would otherwise be such.^ 
 
 A writing, " Received of Gr. & Co. $2,000 to invest in wool. Said 
 Gr. & Co. to receive two-thirds of t]^e 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 infer 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 
 
 1 Gilpin V. Enderbey, 5 B. & A. selling 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, 2 Bligh, 270; ing to inder^nify W. against loss for 
 Brown v. Tapscott, 6 M. & W. 119; four months, and at the end of a year 
 Pollard V. Stanton, 7 Ala. 7G1 ; Camp S. was to assign to "W. one-third of 
 V. Montgomery, 74 Ga. (1886); Con- the patent. At the end of the four 
 solidated Bank v. State, 5 La. Ann. 44; montiis W. gave up business and 
 Bobbins v. Laswell, 27 111. 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 being 
 Sherburne, 15 Johns. 409. Contra, clauses consistent only with the 
 that if one guaranties the other theory of a partnership, that contract 
 against loss, there cannot be a part- was said to be at most one wliich 
 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 cense business. 
 
 537. In this case W, agreed with S. siiuddick v. Otis, 33 Iowa, 403; 
 to give his whole time to making and Marstou v. Gould, 69 N. Y. 220. 
 
 73
 
 ' TESTS OF A PARTNERSHIP. § 57. 
 
 » 
 
 of liis deatli, 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 formed that day, and they acted and 
 contracted as partners. On A.'s death, within the year, B. was held 
 to have 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- 
 sons if there is a holding out. If the arrangement is merely 
 to share an expense of keeping property, as where two joint 
 owners of a horse agree in writing that one shall keep him 
 for a certaiil 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 arrangement 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 merely furnishes a rule 
 for settlements between themselves.^ 
 
 On the other hand, however, where Gr. 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, 3 Allen, < £owry u Brooks, 2 McCord. 421 ; 
 
 480. Bailej' v. Clark, 6 Pick. 372 ; Moss v. 
 
 2Burritt v. Dickson, 8 Cal. 113; Jerome, 10 Bosw. 220; Ala. Fertil- 
 Bailey v. Clark, 6 Pick. 372 ; 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 tnferse, Jones v. How- 
 Jordan V. Wilkins, 3 Wash. C. C. ard, 53 Miss. 707. 
 110. SAJgen v. Boston & Maine R. R. 
 
 3 Oliver v. Gray, 4 Ark. 425; Ala. 132 Mass. 423; and see Irvin v. Nash- 
 
 Fertilizer Co. v. Reynolds & Lee, 79 ville, Cliat. & St. L. R'y Co. 92 lU. 103 
 
 .Via. 497. (34 Am. Rep. 116). 
 
 73
 
 § u9. NATURE AND FORMx\TION. 
 
 paid on his advances to tlie firm, it was lield 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. The 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 haul;* or parties agree- 
 ing to divide a reward when obtained;^ or coach owners 
 
 1 Hendrick v. Gunn, 35 Ga. 234. merlin, 48 id. 43o; Giirr v. Martin, 73 
 
 2Everiltu Cliapman, 6 Conn. 347; id. 528; Blue v. Leathers, 15 III. 31; 
 
 Brady v. Colhouu, 1 Pa. 140; Jones Front v. Hardin, 56 Ind. 1C5; McLau- 
 
 V. McMichael, 12 Rich. (S. Ca.) L. 176. rin v. McColl, 3 Strob. L. 21; Mann 
 
 3 Courts V. Happle, 49 Ala. 254; r. Taylor, 5 Heisk. 267 ; Albee v. Fair- 
 
 Tayloer. Bush, 75 Ala. 432; Christian banks, 10 Vt. 314; Haydon v. Ci-aw- 
 
 V. Crocker, 25 Ark. 327; Gardenhire ford, 3 Up. Can. Q. B. (old ser.) 583. 
 V. Smith, 39 id. 280; Hollo way v. 4 Hii-Jey y. Walton, 63 III. 260. 
 Brinkley, 42 Ga. 226; Smith v. Sum- 5 Dawson v. Guriey, 22 Ark. 381. 
 
 74
 
 TESTS OF A PARTNERSHIP. 
 
 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 who 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 the 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 lighter 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. 192. 
 
 2 Holden v. French, 68 Me. 241. 
 
 3 Mauusell v. Willett, 36 La. Ann. 
 323. 
 
 4 Barber v. Cazalis, 30 Cal. 92. 
 
 5 Fiuckle v. Stacey, 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. Moynihan, 44 Cal. 53, where 
 a boiler-maker and a builder of steam- 
 engines jointly agreed with the 
 owner of a boat to put in an engine. 
 
 9 Bowman v. Bailey, 10 Vt. 170; 
 Tobias v. Blin, 21 id. 544; Cutler v. 
 Winsor, 6 Pick. 335; 17 Am. Dec. 3S5, 
 
 10 Wheeler v. Farmer, 38 Cal. 203 ; 
 Gillies V. Colton, 22 Grant's Ch. (Up. 
 Can.) 123. 
 
 11 Bradley v. Harkness, 26 Cal. 69 ; 
 but see Abel v. Love, 17 Cal. 233. 
 
 12 Lyon V. Knowles, 3 B. & S. 556. 
 
 13 Dry V. Boswell, 1 Camp. 329. 
 i^Mair v. Glennie, 4 M. & S. 240; 
 
 Wilkinson v. Frasier, 4 Esp. 182. See 
 Perrott v. Bryant, 2 Young & C. 
 Ex. 61; The Frederick, 5 Rob. Adm. 
 8; Reed v. Hussey, Blatchf. & H. 
 
 not specifying what part each was to Adm. 525 ; Duryee v. Elkins, 1 Abb. 
 
 do or defining their relations. The 
 employee of one sued both ; presum- 
 ably they are not partners. 
 
 8 O'Donnell v. Battle House Co. 67 
 Ala. 90; 43 Am. Rep. 99; Beecher v. 
 Bush, 45 Mich. 188 ; 40 Am. Rep. 465 ; 
 Fa-rrand v. Gleason, 5G Vt. 633. 
 
 7Knowlton v. Reed, 38 Me. 246. 
 
 8 Heimstreet v. Howland, 5 Den. 68. 
 
 Adm. 529; Coffin i;. Jenkins, 3 Story, 
 C. C. 108; Baxter v. Rodman, 3 Pick. 
 435; Grozier v. At wood, 4 id. 234; 
 Turnery. Bissell, 14 id. 192; Rice v. 
 Austin, 17 Mass. 197, 205. See 
 Bridges v. Sprague, 57 Me. 543; 
 Holden v. French, 68 id. 241 ; Moore 
 V. Curry, 106 Mass. 409; Joy v. 
 Allen, 2 Woodb. & M. 303. 
 
 T*;
 
 § GO. 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 commission 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 an-angement between commission merchants in one city 
 and their coi-respondents in another, that, on all sales of produce 
 shipped by the former to the latter, part of the hitter's commis- 
 sions should he 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 Lowry v. Brooks, 3 McCord (S. ments to be partnerships as to third 
 Ca.), "L. 421. persons, see § 16. In TInving v. 
 
 2 For example, see Dillard v. Clifford, 136 Mass. 483, an agreement 
 Scruggs, 3G Ala. G70; and see the by a broker employed to sell a horse, 
 cases cited under § 43. So of an ex- to sliare' commissions witli another 
 partner receiving a percentage on broker if he will procure a buyer, 
 gross sales for his influence, Gibson was said to constitute tiieni partners 
 V. Stone, 48 Barb. 385; 38 How. Pr. in the transaction. So that a fraud 
 468. by the latter upon the owner, where- 
 
 3Hanna v. Flint, 14 Cal. 73. by the owner was induced to name 
 
 * Wass V. Atwater, 83 Minn. 83. a price on a false basis and a sale 
 
 5 Pomeroj' v. Sigerson, 23 Mo. 177. was effected, bars the innocent 
 
 For the English cases prior to Cox broker's action for commissions. 
 
 V. Hickman, holding such arrange- ^ Reid v. Hollinshead, 4 B. & C. 867. 
 
 76
 
 TESTS OF A PARTNERSHIP. § 01. 
 
 ,§ 61. though l)oth fiiriiisli expenses or outlay. — Tlie 
 
 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 he shall cut the 
 timber, each pajang certain of the expenses and divide the profits;' 
 or, if B. is to build 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 a 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. Leathers, 15 111. 31 ; Donuell u. 5 Leigh (Va.), 583; 27 Am. Dec. 618. 
 
 Harshe, 67 Mo. 170 ; Musser v. Brink, Contra, Donnell v. Harsche, 67 Mo. 
 
 (38 Mo. 242; 80 id. 350; Putnam v. 170. 
 
 Wise, 1 Hill, 234 ; Day v. Stevens, 88 s st. Denis v. Saunders, 36 Mich. 
 
 N. Ca. 83; 43 Am. Rep. 732 (limit- 369. 
 
 ing Curtis v. Cash, 84 id. 41); Brown ^Bisbee v. Taft, 11 R. L 307. See 
 
 V. Jaquette, 94 Pa. St. 113; 39 Am. Kilshaw v. Jukes, § 20. 
 
 Rep. 770; Murray v. Stevens, Rich. SHobinsonu Bullock, 58 Ala. 618; 
 
 Eq. Cas. (S. Ca.) 205. See, also, Stoallings v. Baker, 15 Mo. 481; Kelly 
 
 Clark u. Smith, 52 Vt., 529; and Her- v. Gaines, 24 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 iJ. McMichael, 12 Rich. L. 170. 
 
 S8; Holifield v. White, 52 Ga. 567; 6 Laraont u Fullam, 133 Mass. 583 ; 
 
 Adams v. Carter, 53 Ga. 160. Chapman v. Lipscomb, 18 S. Ca. 222. 
 
 2Urquhart v. Powell, 54 Ga. 29; ^ogoh. St. 429. The case is criti- 
 
 Plummer v. Trost, 81 Mo. 425; Rey- cised in Beecher v. Bush, 45 Mich. 
 
 Holds V. Pool, 84 N. Ca. 37 ; 37 Am. 188, 197-8. 
 
 77
 
 § 63. NATURE AND FORMATION. 
 
 for breach of contract of sale made by one of them. Tlie court held 
 there was a partnership, because a joint sale, and not a separate 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 agi*eed 
 to buru 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.'' 
 
 § 62. liertliiig. — 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 uf)on the herd 
 and divide the excess, is held not 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 flock 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, real 
 
 iln Aubroyu Frieze, 59 Ala. 587, ^Beckwith v. Talbot, 95 U. S. 289 
 
 crops jointly produced at joint ex- (s. C. 2 Colorado, G39). 
 
 pense were to be divided, but the 5 Stapleton 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 
 
 2Musieru, Trumpbour, 5Wend.274. the price obtained for the cattle 
 
 3 Robinson v. Haas, 40 Cal. 474; which they were jointly taking to a 
 
 Asliby V. Shaw, 82 Mo. 76. market. 
 
 78
 
 TESTS OF A PARTNERSHIP. § G3. 
 
 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 Vt. 380, Hastings had agreed to buy a 
 farm from one N. ; he then agreed 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 carr3'ing out a single specific 
 purpose or enterprise, or a tenancy in common, except that they 
 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, 2 C. B. N. S. 4 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, 28 id. 380. 
 
 79
 
 § 04. NATURE AND FORMATION. 
 
 afterwards rented and tlie rents divided, does not make them part- 
 ners in the property.' So a contract to buy certain hxnd, erect a 
 mill upon it, sharing the expenses, and to divide the profits arising 
 from selling or leasing it, does not create a partnership, hut is a 
 mere tenancy in coramoa, 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 as^ree 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 proceeds.* 
 
 If the article alleged to be owned in common was procm^ed 
 as subsidiary to the carrying on of a business with it, there 
 is a partnership; as where A. and B. agree to buy C.'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 C. for keeping 
 
 house together, to lessen expenses, C. to pay rent and 
 
 butcher bills, and B. all other bills, is no partnership, and 
 
 0. cannot bind B. for the rent.'^ An agreement to buy or 
 
 , hold land in common does not create a partnership;^ nor 
 
 iTreibcr v. Lanahan, 23 Md. 116. cer, 4 Cow. 108, whei'e one attempted 
 
 2 Farraud v. Gleason, 56 Vt. 633. to sign for both on the purchase 
 
 SGoell -y. 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 V. Holt, CO Me. 169. holding that a writing by F., iu 
 
 5 Fail u. McRee, 36 Ala. 61. whose name tlie title stood, stating 
 
 6 Leiden v. Lawrence, 2 N. R. 283 the following is the property ovs'ned 
 (Exch.). jointly by G. F. and J. W.: one hun- 
 
 ■- 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 which W. received $1,000; two 
 
 •ber V. Lanahan, 23 Md. 116; Sikes v. «icres each had half in full, sold to 
 
 Work, 6 Gray, 433; Ballou v. Spcn- F. for $3,600, 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 conti-acts 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 not 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- whei'e a person agreed to pay half 
 
 iug 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 be is not liable on the contracts of 
 
 that others were co-owners with de- the owners of the vessel for work, 
 
 fendant in land does not make them * Section 69. 
 
 partners in his scheme to develop a ^Cowles v. Garrett, 30 Ala. 841; 
 
 mine upon it, and bis employee can Goddard v. Pratt, 16 Pick. 412, 425 ; 
 
 sne him alone for services. Vere v. Asbby, 10 B. & C. 288; Par- 
 
 1 Humphries u. 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. 371 ; Gib- 
 
 2 De Wolf ^;. Howland, 2 Paine, C. son v. Lupton, 9 Bing. 287; Coope 
 C. 356. V. Eyre, 1 PI. Bl. 37; Reid r. Hollius- 
 
 3 Porter v. McClure, 15 Wend. 187; head, 4 B. & C. 867. 
 
 Noyes v. Gush man, 25 Vt. 390; Mor- '^Huckabee v. Nelson, 54 Ala. 12. 
 Vol. 1 — 6 81
 
 § 6G. NATURE AND FORIklATION. 
 
 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 selling 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 tliat 
 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, tliis 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. Burrows, 47 N, Y. R. R. 114 Mass. 44; Algen u Boston 
 199. & Maine R. R. 133 id. 423 (6 Am. 
 
 2 Croft u. B. &0. R. R. 1 MacArthur & Eug. R. R. Cas. 562); Watkins v. 
 (D. C), 492; Ellsworth -y. Tar tt, 26 Terre Haute, etc. R. R. 8 Mo. 
 Ala. 733 (62 Am. Dec. 749); Hot App. 569; Wetmore v. Baker, 9 
 Springs R. R. v. Trippe, 42 Ark. 465 Johns. 807; Pattison v. Blauchard, 5 
 (48 Am. Rep. 65) ; Irvin v. Nashville, N. Y. 186 ; Merrick u Gordon, 30 
 C. & St. L. Co. 93 111. 103 (34 Am. id. 93; Briggs u Vanderbilt, 19 Barb. 
 Rep. 116); Atchison. Topeka & Santa 222; Mohawk & Hudson R. R. v. 
 Fe R. R. V. Roach, 35 Kan. 740; Dar- Nilcs, 8 Hill (N. Y.), 162; Railroad v. 
 ling v. Boston & C. R. R. 11 Allen, Sprayberry, 8 Bax. 841; Nashville 
 295; Gass v. N. Y, Providence & & Chat. R. R. v. Sprayberry, 9 Heisk. 
 Boston R. R. 99 Mass. 220 ; Pratt v. 853. And see St. Louis Ins. Co. v. S( . 
 Ogdensburg& Lake Champlain R. R. Louis, Vandalia, etc. R. R. 104 U. S. 
 103 id. 557, 567 ; Hartan v. Eastern 146 (3 Am. & Eng. R. R. Cas. 563). Br. I 
 
 82
 
 TESTS OF A PARTNERSHIP. § 67. 
 
 If two firms agree to divide equally profits, on compressing and 
 shipping cotton, of the business after excluding a certain amount, 
 viz., the first fifty thousand hales, 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 make contracts with third per- 
 sons in their separate names for the sale and delivery of flour 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 firms 
 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. 
 271, affirming 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, 
 but a 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 mier 
 
 senting them all makes them jointly se. An agreement that they should 
 
 and severally liable for a loss, Block work against each other A-aj by day 
 
 V. Fitchburg R, R. 139 Mass. 308. means merely that if one worked 
 
 1 Mayraut v. Marston, G7 Ala. 453; when the other did not he should be 
 Jordan v. Wilkins, 3 Wash. C. C. 110. allowed for it. Hawkins v. Mcln- 
 
 2 Where M., having a contract to tyre, 45 Vt. 496. 
 
 finish a church, agreed with H. to 3 Fay v. Davidson, 13 Minn. 523. 
 work it together, dividing receipts, < Connolly v. Davidson, 15 Minn, 
 less expense of material and help, this 519. 
 
 83
 
 § G7. NATURE 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 such 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, all 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. 329 
 
 V, Elkins, 1 Stark. 272; Holt, N. P. (aff'd, 7 Hill, 292). One railway com- 
 
 227 ; Fromont V. Coupland, 2 Bing. pany working the lines of another 
 
 170, and Connolly v. Davidson, su- company in connection with its own, 
 
 2Jra; The Stbt. Swallow, Olcott, 334; on a division of net receipts, was held 
 
 Meaher v. Cox, 37 Ala. 201 ; Bowas v. not to form a partnership though 
 
 Pioneer Tow Line, 2 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 supro, §61. See, also. Green Co. 19 Up. Can. C. P. 117. On this 
 
 V. Beesley, 2 Bing. N. C. 108, where, principle of mixing in a joint fund, 
 
 liowever, 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 
 
 (29 Am. Rep. 832); Dow v. Say ward, flour belonging in part to A., part to 
 
 12 N. H. 271 (aff'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 
 
 cago & 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. 
 
 § G8. Cheese factory. — The patrons of a cheese factory, 
 that is, persons who send milk to the estabhshment founded 
 by tlieni, 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 applicable; ^ nor a joint 
 interest in a patent.* 
 
 § 70. Sliip-owiiers. — 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. Hallet, 1 
 Ves. Sr. 497, was overruled by Lord Eldon in Ex parte 
 Young, 2 Ves. & Bea. 342, and Ex parte Harrison, 2 
 Rose, 7G.» 
 
 iButterfield v. Lathrop, 71 Pa. St. 488; Pitts v. Hall, 3 id. 201; Penni- 
 
 225 ; 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. 
 124; Hawley v. Keeler, 62 Barb. 231 ^ Ex parte Young, 2 V. & B. 242; 
 
 (aff'd, 53 N. Y. 114), Ex parte Harrison, 2 Rose, 76 ; Helme 
 
 2 Wheeler u. 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. iara Bagaley, 5 Wall. 377; Macy v. 
 Can. 123. DeWolf, 3 Woodb. & M. 193; Jack- 
 
 3Hermanos v. Duvigneaud, 10 La. son v. Robinson, 3 Mason, 138; Don- 
 Ann. 114. aid V. Hewitt, 33 Ala. 534; Bacoa 
 
 4 Carter v. Bailey, 64 Me. 458. As v. Cannon, 2 Houst. 47 ; Loubat v. 
 
 to trade-mark, Dent v. Turpin, 2 J. & Nourse, 5 Fla. 350 ; Allen v. Hawley, 
 
 H. 139. 6 id. 142 (63 Am. Dec. 198) ; Patterson 
 
 sParkhurst v. Kinsman, 1 Blatchf, v. Chalmers, 7 B. Mon. 595; Owens^ 
 
 85
 
 §71. 
 
 NATURE AND FORMATION. 
 
 A ship or steamboat ma}^, hovv^ever, 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 
 contribute 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- 
 
 mg.* 
 
 V. Davis, 15 La. Ann. 22; Theriot v. 
 Michel, 28 La. Ann. 107; Harding ^;. 
 Foxcroft, 6 Me. 7G; Knowlton v. 
 Reed, 38 id. 246; Little v. Merrill, 62 
 id. 328; Merrill v. Bartlett, 6 Pick. 
 46. And see Thorndike v. DeWolf, 
 6 id. 120; Moore u Curry, 106 Mass. 
 409 ; Cinnamond v. Greenlee, 10 Mo. 
 578; Ward v. Bodeman, 1 Mo. App. 
 272; Muniford v. Nicoll, 20 Johns. 
 611 (reversing 4 Johns. Ch. 522): 
 Stedman v. Feidler, 20 N. Y. 437; 
 Williams v. Lawrence, 47 N. Y. 462 ; 
 Scottin V. Stanley, 1 Dall. 129; Coe 
 V. Cook, 3 Whart. 569; Hopkins v. 
 Forsyth, 14 Pa. St. 34; Coursin's Ap- 
 peal, 79 Pa. St. 220 ; 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, 2 Hill (S. Ca.). Ch. 553. 
 
 1 Campbell v. Muliett, 2 Swanst. 
 551 ; Nugent v. Locke, 4 Cal. 318; 
 Loubat V. Nourse, 5 Fla. 350 ; Allen 
 V. Havvley, 6 id. 142 (63 Am. Dec. 
 198) ; Hewitt v. Sturdevant, 4 B. Men. 
 453, 459; Phillips v. Purington, 15 
 Me. 425; Lamb v. Durant, 12 Mass. 
 54 (7 Am. Dec. 31) ; Miimford v. Nicoll, 
 
 20 Johns. 611, 628 (rev. S. C. 4 Johns. 
 
 Ch. 52); Williams v. Lawrence, 47 
 N. Y. 462; Lape v. Parviu, 2 Disney, 
 560 ; and cases in the next notes. 
 
 2 The William Bagaley. 5 Wall. 
 377, 406 ; Lamb v. Durant, 12 Mass. 
 54 (7 Am. Dec. 31). And see Hewitt v. 
 Sturdevant, 4 B. Mon. 453; Ex parte 
 Howden, 2 M. D. & D. 574. 
 
 3 Loubat V. Nourse, 5 Fla. 350; Allen 
 V. Hawley, 6 id. 142 (63 Am. Dec. 198) ; 
 Williams v. Lawrence, 47 N. Y. 462; 
 Wright V. Hunter, 1 East, 20. 
 
 ••Phillips V. Penny wit, 1 Ark. 59; 
 Starbucks. Shaw, 10 Gray, 492; Rus- 
 sell V. Minnesota Outfit, 1 Minn. 162; 
 Young u. Brick, 3 N. J. L., 241, 490, 
 664 ; Reeves v. Goff, 3 id. 194, 454, C09 ; 
 Mumford v. Nicoll, 20 Johns. 611 (re- 
 versing 4 Johns. Ch. 522); Merritt 
 u Walsh, 82 N. Y. 685, 6^9; Will- 
 iams V. Lawrence, 47 id. 462 ; Coe v. 
 Cook, 3 Whart. 569 ; Baker v. Casey, 
 19 Grant's Ch. (Up. Can.) 537. 
 
 5 Saville v. Robertson, 4 T. R. 720 ; 
 Hoare v.- Dawes, 1 Dougl. 371 ; Coope 
 V. Eyre, 1 H. Bl. 37; Harding v. 
 Foxcroft, 6 Me. 76; Holmes ij. United 
 F. Ins. Co. 2 Johns. Cas. 329 ; Post v. 
 Kimberly, 9 Johns. 470; French v. 
 Price, 24 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 v. ^ Hawea v, Tillinghast, 1 Gray, 
 Rowland, 2 Paine, C. C. 356; 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 55 Am. Dec. 53;Butterfield v. Beards- 
 
 V. Hone, 4 Bing. 28; Fox v. Clifton, 
 6 id. 776; Clagett v. Kilbourne, 1 
 Black, 346; Montgomery v. Elliott, 6 
 Ala. 701 ; Gi'ady v. Robinson, 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 u. Walker, 
 60 Me. 468 ; Alvord v. Smith, 5 Pick. 
 232; Haskell v. Adams, 7 id. 59; 
 Kingman v. Spurr, id. 235 ; Tyrrell 
 V. Washburn, Allen, 466; Taft v. 
 Ward, 106 Mass. 518; Bod well 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 R. R. v. 
 Pearson, 128 id. 445; Phillips v. 
 Blatchford, 137 id. 510; Ricker v. 
 American Loan & Trust Co. 140 id. 
 346; Burgan v. Lyell, 2 Mich. 102; 
 
 ley, 28 Mich. 412; Whipple v. Parker, 
 29 id. 369; Willson v. Owen, 30 id. 
 474; Boisgerard v. Wall, 1 Sm. & 
 Mar. Ch. 404 ; Atkins v. Hunt, 14 N. 
 H. 205; Niven v. Spickerman, 12 
 Johns. 401; Skinner v. Dayton, 19 id. 
 513 (10 Am. Dec. 286) : rev. 5 Johns. 
 Ch. 351 ; Moore v. Brink, 4 Hun, 402; 
 6 N. Y. Supreme Ct. 22; Riauhard v. 
 Hovey, 13 Oh. 300; Cochran v. Perry, 
 8 W. & S, 262; Pledge & 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 Reg. 
 O. S. 419); Walker v. Wait, 50 Vt. 
 668 ; McNeish v. Hulless Oat Co. 57 
 Vt. 316; Hardy v. Norfolk Mfg. Co. 
 80 Va. 404; Kimmins v. Wilson, 8 
 W. Va. 584; First Nat'l Bank v. Goff, 
 31 Wis. 77; Werner v, Leisen, 31 
 Wis. 169. 
 
 88
 
 JOINT STOCK COMPANIES. § 73. 
 
 ekill, 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 tliat 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 liow enforced. — Although by the 
 
 law of the state in which the association was organized, 
 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 bo 
 enforced in the first instance.^ 
 
 iPer James, L. J., Baird's Case, 7 skinner v. Dayton, 5 Johns. Ch. 
 
 L. R. 5 Ch. App. 725, 733. 351. 
 
 2Cothrau v. Perry, 8 W. & S. 262. STaft v. Warde, 106 Mass. 518; Bos- 
 
 3 Baird's Case, L. R. 5 Ch. App. ton & Albany R. R. v. Peaison, 128 
 
 725; Machinists' Nat'l B'k v. Dean, Mass. 445; and cases cited, all of 
 
 124 Mass. 81; Tenney v. New Engl, them being upon the New England 
 
 Protec. Un. 37 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 
 
 i Machinists' Nat'l B'k v. Dean, 124 Biss. 273. 
 Mass. 81, 84. STaft v. Warde, 106 Mass. 518; 
 
 5 McNeish v. Hulless Oat Co. 57 Gott u. Dinamore, 111 id. 45; Boston 
 
 Vt. 316. & Albany R. R. v. Pearson. 128 id. 
 
 6 Greenwood's Case, 3 DeG. M. & 445. See Cutler v. Thomas, 25 Vt. 
 
 G. 459, 477. 73. 
 
 89
 
 § 74. NxlTURE AND FORMATION. 
 
 The members are individually liable in solldo 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.* 
 
 § 7 1. what constitutes memlbership. — 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 meeting, but who agreed to take it, although 
 he has not paid or 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 subscription and payment of assessments is 
 sufficient proof of membership, without showing by whom 
 the names were signed.^'' And proof that the party was a 
 
 iCarlewu, Drury, 1 Ves. &B. 157; mcConnell v. Denver, 35 Cal. 
 
 Keasley v. Codd, 2 0. & P. 403, n. ; 365. 
 
 R. V. Dodd, 9 East, 516; Robinson's 5 Whitman v. Porter, 107 Mass. 
 Case, 6 DeG. M. & G. 572; Hodgson 522. As to the personal liability of 
 V. Baldwin, 65 111, 532; Greenup v. purchasers of shares for antecedent 
 Barbee, 1 Bibb, 320; Frost V.Walker, liabilities for which their assignors 
 60 Me. 468; Whitman v. Portei', 107 were chargeable, see § 187, 
 Mass. 522, 524; Gott v. Dinsmore, ^Perring t\ Hone, 4 Bing. 28; But- 
 Ill Mass. 45; Skinner v. Dayton, 19 terfield v. Bt-ardsley, 28 Mich, 412, 
 Johns. 537 ; Hess v, Werts, 4 S. & R. 7 Boston & Albany R. R. v. Pear- 
 361; Cutler v. Thomas, 25 Vt. 73; son, 128 Mass. 445; Frost v. Walker, 
 First Nai'l Bank v. Goff, 31 Wis. 77. 60 Me. 408. 
 
 2 Bodwell V. Eastman, 106 Mass. s Grady v. Robinson, 28 Ala. 289, 
 S25. 9 Hedge & Horn's Appeal, 63 Pa. 
 
 3 Machinists' Nat'l B'k v. Dean, 124 St. 273; Fox v. Clifton, 6 Bing. 77G. 
 Mass. 81. 10 Frost v. Walker, 60 Me. 468. 
 
 90
 
 JOINT STOCK COMPANIES. § 76 
 
 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. Clubs. — 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 
 tlie 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. 
 
 iBoclwell V. Eastman, 106 Mass. H. 113, and the cases cited through 
 
 525, 52C. And see Taf t v. Warde, HI this section. The contrary expres- 
 
 Mass. 518; Pettis u. Atkins, 60111. 454; sion in Babb v. Reed, 5 Rawle, 151 
 
 Doubleday v. Muskett, 7 Bing. 110. (28 Am. Dec. 650), has been limited 
 
 2 Kingman v. Spurr, 7 Pick. 235; in Ash v. Guie, 97 Pa. St. 493. For 
 
 Perrino- v. Hone, 4 Bing. 28. promoters of corporations, see §89, 
 
 SAlvord V. Smith. 5 Pick. 232. ^Lafond v. Deems, 81 N, Y. 507. 
 
 <St. James Club, 2 DeG. M. & G. 6Danbury Cornet Baud v. Bean, 
 
 383 ; Andrews v. Alexander, L. R. 8 54 N. H. 524. 
 Eq. 176; Austin v. Thomson, 45 N. 
 
 91
 
 § 75. NATURE AND FORMATION. 
 
 Thus, in Richmond v. Judy, 6 Mo. App. 465, it was hekl 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. Guie, 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, 52 Mich. 106, the members of an associa- 
 tion to resist the claims of a patentee, the conditions of member- 
 ship being an initiation fee and^;ro 7'ata 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 accounting.^ 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. Gra3% 23 Oh. St. 189. house. Contra, Cheeny v. Clark, 3 
 
 2 Ferris u. Thaw, 5 Mo. App. 279; Vt. 431. 
 
 Eichbaum v. Irons, 6 W. & S. GT; < Hall u. Thayer, 12 Met. 130. See 
 
 Blakely v. Bennecke, 59 Mo. 193; Caklicott u. Griffiths, 8 Exch. 898. 
 
 Lewis V. Tilton, (54 Iowa, 220; 53 Am. 5Qneen v. Robson, IG Q. B. D. 137. 
 
 Rep. 436; Heath v. Goslin, 80 Mo. The ekler of a church cannot sue in 
 
 310 ; 50 Am. Rep. 505 ; Ray v. Powers, liis own name to secure a title to the 
 
 134 Mass. 22; Cross v. Williams, 7 11. lot, but the members must join, or 
 
 & N. 675 ; Cockerell v. Aticompto, 2 C. part may sue on behalf of all if very 
 
 B. N. S. 440; Burls u. Smith, 7 Bing. numerous. McConnell v. Gardner, 
 705; Luckombe v. Ashton, 2 F. & F. Morris (Iowa), 273; Lloyd v. Loaring, 
 705 ; Delauney y. Stickland, 2 Stark. 6 Ves. 773, a masonic lodge. And a 
 41G; Braithwaite v. Skofield, 9B. & suit against them nmst be against the 
 
 C. 401. memliers 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. Maik's Church, 
 
 53 Ga. 351. 
 93
 
 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,- 
 
 § 7 6. Grang-es and co-operative 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- 
 age 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.* 
 
 1 McMahon v. Rauhr, 47 N. Y. Atkins v. Hunt, 14 N. H. 205 ; Far- 
 
 67. num v. Patch, 60 id. 294; Edgerly v. 
 
 -'Beaumont v. Meredith, 3 Ves. & Gardner, 9 Neb. 130; Smith v. Hol- 
 
 B. 180; Gorman v. Russell, 14 Cal. lister, 33 Vt. 695; Stimson v. Lewis, 
 
 531 ; 18 id. 683. Contra, Buxke v. Ro- 36 Vt. 91; Tenney v. New Engl. 
 
 per, 79 Ala. 138. Protec. Union, 37 Vt. 64; Henry 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, 20 Me. 413; 435. 
 
 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, tliat on the death of 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 beneiit, 
 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 
 
 > Brink v. New Amsterdam F. Ins. 418. And in Reboul v. Chalker, 27 
 
 Co. 5 Robt. (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. 532; 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, Jletzner 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 partnersliip, 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 186S, agreed 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 in pre- 
 smti, 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. 
 264, 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-se'fen 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. Buckner, 3 Mo. App. 
 594. And see Gray v. Gibson, 6 Mich. 
 300. 
 
 2Snodgrass 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- 
 sixteentlis interest in all Schacher 
 Bros, business, including the steamer, 
 this agreement does not constitute 
 M. their partner in the steamer, the 
 £4,000 never having been fully paid. 
 Meyer v. Schacher, 38 L. T. N. S. 
 37. 
 
 3 Cline V, Wilson, 26 Ark. 154. 
 
 95
 
 § 80. NATURE AND FORMATION. 
 
 D. would cut timber from II.'s land in partnership witli liim, 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." 
 
 § 7y. intention to form a i)Jirtnersliii). — 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 oa 
 account of the company, does not prove a partnership inter 
 fip; hence one who paid the debts can sue the rest at law for 
 contribution."^ 
 
 § 80. Pnrcliases in contemplation of a partnership. — So, 
 
 contracts made and liabilities incurred by individuals upon 
 their separate credit and on their own account, under an 
 
 iHall V. Edson, 40 Mich. 651. An Thebens, 19 La. Ann. 51G. See Lowe 
 
 agreement by a firm of sf)ice dealers v. Dixou, 16 Q. B. D. 405, where all 
 
 with a person to admit him to a share were held liable, 
 
 in an investment, if his secret infor- spike v. Douglass, 3S Ark. 59; 
 
 mation of changes in the tariff ob- Fleshmanu. Collier, 47 Ga. 253; West- 
 
 tained from a congressional commit- cott v. Price, Wriglit (O.), 320. An 
 
 tee prove true, is not a partnersliip. 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 tlie 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. r. Barringer, 
 
 purchases in the name of all without 73 111. 230; Bourne v. Freeth, 9 B. «fc 
 
 the knowledge of the others, for C. 632; Reynell v. 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. » Chandler v. Brainard, 14 Pick. 
 
 Hobbs, 18 Kan. 500; Mousseau v. 285. 
 
 96
 
 INCHOATE PARTNERSHIPS. § 80. 
 
 agreement by whicli 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 aDytliing 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 McGar v. Drake (Tenn. 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 McG-ar. So, also, Webb v. Liggett, 6 Mo. App. 
 845, where L. and D. were to furnish' animals, tools and money to 
 cultivate hemp, and G. 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-tbird 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 
 
 iHeapu. Dobson, 15 0. B. N. S. 460; Baxter v. Plunkett, 4 Houst. 450; 
 
 Smith V. Craven. 1 Or. & J. 500; Brooke v. Evans, 5 Watts, 196; Webb 
 
 Coope V. Eyre, 1 H. Bl. 37; SaA'ille v. v. Liggett, (5 Mo. App. 345 ; Valentine 
 
 Robertson. 4 T. R. 720; Young v. v. Hickle, 39 Ohio St. 19; Heckert u. 
 
 Hunter, 4 Taunt. 582; Huttonv. Bui- Fegely, 6 W. & S. 139; McGar v, 
 
 lock, L. R. 8 Q. B. 331; 9 id. 572; Drake (Tenn. 1877), 5 Reporter, 347. 
 Vol. 1 — 7 97
 
 § 81. NATURE AND FORMATION. 
 
 not a partnership, for tlicre 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. WliJit are not in futuro. — If, however, the contract 
 of partnership either expresses an existing 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 in futuro. 
 
 Thus, a recital that the parties " have entered " into a partnership, 
 and fixing no time for its commencement, has been i«»)garded 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 
 
 1 This case is very close. See, also, 2iQgraham u. Foster, 31 Ala, 123, 
 Everitt V. Chapman, 6 Conn. 347. 
 
 98
 
 INCHOATE PARTNERSHIPS. § 81. 
 
 into operation. Thus, one was to build the 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 be 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. Rice, 2 Allen, 480, A. said to B. that he 
 needed a partner 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, Noyes v. Cushman, 25 Mich. 167, analyzed under the next 
 Vt. 390, wiiich is very similar to section, 
 this; aud Kerrick v. Stevens, 55 
 
 99
 
 § 82. NATURE AND FORMATION. 
 
 mitted into a business on the 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. 48, defendant, desiring to secure 
 plaintiff's services in his factory business, and plaintiff, 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 members of P. 
 
 100
 
 INCHOATE PARTNERSHIPS. g 83. 
 
 & Co. to get the 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- 
 ent partnership. 
 
 § 83. 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 Si, 500, of which he paid $1,295; but the 
 terms were that he was not to share profits or be an acting partner 
 until fall payment; 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 Jolmston 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. 128, 142; Metcalf v. Redmon, 43 111. 
 Y. 441. 204, noticed fully (§ 78, note). 
 
 2 Dickinsoa v. Valpy, 10 B. & C. * See, also, Stevenson v, Mathers, 
 
 67 111. 123. 
 101
 
 § 84. 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 that 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 bind 
 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 aa 
 to raise a presumption that they are so. 
 
 Thus, in Durant v. Rhener, 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 plaintiffs 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 \s on 
 joint account, and B. and S. wrote, consenting, and requested B. 
 and II. to designate and mark the cotton on joint account and ad- 
 vise them when it was shipped, this constitutes a contract, and the 
 
 102
 
 INCHOATE TARTNERSHIPS. g SO. 
 
 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 into 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 he in pref^entiiYova. 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 Grady 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 lauds, and, on failure to comply, 
 his interest was to be forfeited. A p3rson 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 by launching. — 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; Williama 
 See Saufley v. Howard, 7 Dana, v. Jones, 5 B. & C. 108. 
 367. s Beall v. Poole, 27 Md. 645. 
 
 103
 
 g 86, NATURE AND FORMATION. 
 
 gether, although something remains to bo 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 all 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, 31 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. 221, where Gr., 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; ILutman t;. Woehr, 18 N. J. Eq. 
 
 551; McStea v. Matthews, 50 N. Y. 383; Pitlmer u. Tyler, 15 Minn. 106; 
 
 166, and on the same instrument, Coggsvvell y. Wilson, 11 Oregon, 371; 
 
 Hubbard v. Matthews, 54 N. Y. 43 ; Boyd v. Mynutt, 4 Ala. 79 ; Camp- 
 
 13 Am. Rep. 562. And see Wood v. bell v. Whitley, 39 id. 172; Jackson 
 
 CuUen, 13 Minn. 394, where one v. Sedgwick, 1 Swanst. 460, See Per- 
 
 partner had notsigned the articles but kins u Perkins, 3 Gratt. 3C4. 
 •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 fruits 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 partnersbip. — Bat 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 an 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 an 
 employee or others of the firm may, after a certain time, 
 become a partner, or may have an option to be a partner 
 
 iHubbpll V. "Woolf, 15 Ind. 204; 3per Parke, J., in Dickinson v. 
 Hoile V. York, 27 Wis. 209. Valpy, 10 B. & C. 128, 141 ; and tliia 
 
 2 Ex parte Turquand, 2 M. D. & D, was quoted and held to be the law in 
 339. Atkins v. Hunt, 14 N. H. 205. 
 
 105
 
 § 88. NATURE AND FOR^IATION. 
 
 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.^ 
 
 Ill Sailors v. Nixon-Jones Printing Co. 20 111. App. 509, three 
 persons, each owning a third interest in a business, made a con- 
 tract called " partnership," by which two of them were to carr}' 
 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 liave profits and not interest, but B. continued 
 to credit interest, upon A.'s bringing suit upon the notes, the 
 court can hold that 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 salaiy 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 fiom the be- 
 ginning." 
 
 1 Ex parte Davis, 4 DeG. J. & Sm. 2 See Courteuay v. Wagstaff, 16 C. 
 
 523; Gabriell v. Evill, 9 M. & W. B. N. S. 110. 
 
 297, and Car. & Marsh. 353; Price v. 3 A partnership may be contracted 
 
 Groom, 2 Ex. 542 ; 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. 403; Irwin v. Bidwell, 34. 
 
 72 Pa. St. 244; Darling v. Bellhouse, ^ Morrill v. Spurr, 143 Mass. 257. 
 
 19 Up. Can. Q. B. 268; Hill v. Bell- 6 Bidwell v. Madison, 10 Minn. 13 
 house, 10 Up. Can. C. P. 123. 
 
 106
 
 INCHOATE PARTNERSHIPS. § 85). 
 
 § 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 pi-e- 
 Hminary 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 rest, he 
 can recover from them at law.^ And if the board of whicli 
 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, Reynell v. been ruled in Holmes r. Higgins, 1 
 
 Lewis, 15 M. & W. 517; 1 Sim. N. B. & C. 74, but this is clearly not so. 
 
 S. 178- Hamilton t'. Smith, 5 Jur. N. SDoubleday v. Muskett, 7 Bing. 
 
 S. 32; West Point Foundry Ass'u v. 110. 
 
 Brown, 3 Edw. Ch. 284; Sylvester 4 Bailey v. Macaulay, 19 L. J. Q. 
 
 V. McCuaig, 28 Up. Cau. C. P. 448. B. 73; Wood v. Duke of Argyll, 6 
 
 2 Hamilton v. Smith, 5 Jur. N. S. Man. «& Gr. 926. As to the liability 
 
 32; Sylvester v. McCuaig, 28 Up. of stockholders 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 condact 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 Martyn v. *Qui facit per alium, must face 
 Gray, 14 C. B. N. S. 824, 841. it liimself. Punch. 
 
 2EYBE. C. J., Wuugh V. Carver, 2 
 H. Bl. 235. 
 
 108
 
 BY HOLDING OUT OR ESTOPPEL. § 01. 
 
 plaintiff, therefore, must have rehed 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. Plaintiff'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 the 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; "VValrath v. 
 
 Vice V. Lady Anson, 7 B. & C. 409, Viley, 3 Bush. 478 ; Grieff 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. Piukham, 37 id. 252 ; Wood 
 
 1 F. & F. 344; Pott v. Eyton, 3 C. 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. Reg. (N. S.) (388; Rimel v. Hayes, 83 
 
 & F. 504; Benedict v. Davis, 2 Mo. 200; Irvin u. 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. 36 Oh. St. 135. 139; 
 
 Powell, 8 Ala. 560; Vinson v. Bever- Kirk v. Hartman, 63 Pa. St. 97. 
 
 idge, 3 MacArthur (D. C), 597, 601; 2 Thompson v. First Nat'l Bank, 
 
 Bowie V. Maddox, 29 Ga. 2^5; Hef- 111 U. S. 530. 
 ner r. Palmer, 67 III, 161 ; Maikhara 
 
 109
 
 § 92. NATURE AND FORMATION. 
 
 J. conducted a shop for E., paying hini 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 plaintift" 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 pn 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 
 
 2Maityn 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 
 
 Rob. 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. Laiigdon, 97 Mass. 97, 100; altbougli the plaintilT 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 Waugli u. Carver, 1 Smith's Lead, 
 
 and declarations to third persons Cas. 507, and Wood v. Pennell, 5l 
 
 were admitted in Poole v. Fisiier, G3 Me. 52. 
 111.181. 5 Pars. Part. p. 119. 
 
 < In Young v. Axtell 2 H. Bl. 242. ePoiilon v. Secor, 61 N. Y. 456. In 
 
 110
 
 BY HOLDING OUT OR ESTOPPEL. g 93. 
 
 § 93. Criticism and suggestion. — If there is anything left 
 of Lord Mmsfield's rule, it cannot be as broad as that adopted by 
 the New York court. The rule there attempted to be laid down 
 might have been more plausibly stated, thus: The permitted use of 
 a person's name in the firm style is proof of an actual and not 
 nominal partnership. 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 adistinc 
 tion between holding out by consent and by negligence. Ever. 
 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 dicta are against it.* 
 
 The rule, however, in Poillon v. Secor is objectionable. Acts 
 and declarations of the alleged partner before third persons and 
 unknown to plaintiff may be proved by him if they are evidence 
 of an actual partnership, but if insufficient 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 extending 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. 529, criticises 
 as Secor, Swan & Co., and it appeared Poillon r. Secor as the only Ameri- 
 on bill-lieads. aiU^ertisenients, etc. can case sustaining the doctrine, 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 iield liable for the text, 
 above reasons, adopting Mr. Parsons' i See § 102 and § 1147. 
 rule. Tlie same ruling was made in 2Fitch v. Harrington, 13 Gray, 
 Pringle v. Leverich, 16 Jones & Sp. 468; 8 Am. Law Reg. (N, S.)688. 
 
 Ill
 
 § 94. NATURE AND FORMATION. 
 
 § 04. Probable explanation of the cases.— Tlie proper 
 explanation of the cases given below lies rather in the re- 
 garding representations to the world generally of the fact of 
 partnership, sach 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 probable 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. 358, 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 visite.l 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 Bowen v. Rutherford, 60 III. 41 (14 Am. Hep. 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. Pounell, 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, 12 lad. 12; 
 
 held himself out — not to the world, Rizur v. James, 38 Kan, 221. And 
 
 ■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, 67 111. 
 
 circumstances of publicity that the IGI; Benedict u. Davis, 2 McLean, 
 
 plaintiff knew it and believed him to 317, 350. 
 be a partner, he would be liable." 
 
 112
 
 BY HOLDING OUT OR ESTOPPEL. § 90. 
 
 A person representing himself to a few third persons as a part- 
 ner is not such a hokling out to the worhl 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 held 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, 
 
 § i)5. Defendant's knowletV^'e. — 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 knowledge of it, creates no liability; for no 
 estoppel arises where he is not in fault. The unauthorized 
 use of one's nauie 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' n^mes 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. Acqniescence. — 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 Markbam v. Jones, 7 B. Mon. 4r)6 ; ler, 24 Mo. App. 76 ; Bishop v. George- 
 Vice V. Lady Anson, 7 B. & C. 4p9; son. 60 111. 484; Campbell u Hastings, 
 
 5 C. & P. 19; Benedict v. Davis, 3 29 Ark. 512; Cassidj' v. Hall, 97 N. 
 McLean, 347. Y. 159; Denithorne v. Hook, 112 Pa. 
 
 2 Fox V. Clifton, 6 Bing. 776; 4 M. St. 240; Benjaraiu v. Covert, 47 Wis. 
 
 6 P. 718 ; Hastings v. Hopkinson, 28 375, 384. And see Gay v. Fretwell, 9 
 Vt. 108, 114; Swanu v. Sanborn, 4 Wis. 186; Pott v. Eyton, 3 C. B. 32. 
 Woods, C. C. 625; Re Jewett, 7 Biss. 3 Holland v. Long, 57 Ga. 36. 
 
 528; 15 Bankr. Reg. 126 ; Cole z?. But- 4 Nicholson v. Moog, 65 Ala. 471; 
 Vol. 1 — 8 113
 
 § 97. NATURE AND FOR^IATION. 
 
 SO as to justify an inference of acquiescence, must depend 
 on the facts of each case. 
 
 g 1)7. 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 a 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, G J. J. Mar. 609 ; this comes to the plaintiff's knowl- 
 
 Wood V. Pennell, 51 Me. 52; Kritzer edge, before selling, although the 
 
 V. Sweet, 57 Mich. 617. plaintiff had not previously heard 
 
 1 And see Wood v. Pennell, 51 Me. that he was a partner, but there had 
 
 52. And so if a retired partner been no notice of dissolution. Ben- 
 
 knowingly allows a reputation to ex- jam in v. Covert, 47 Wis. 375, 384. 
 ist that he is still in the firm, and 
 
 114
 
 BY HOLDING OUT OR ESTOPPEL. § 98. 
 
 In Tlirasen v. Lathrop, 104 Pa. St. 3G5, the city directory gave 
 Domenec Ilimseii as a partner, whereas he was only manager, and 
 his son Domenec 0. Ihmsen was the partner; and the court said 
 this coiikl 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 iiiiknowii acts of liolding out. — Estoppel being 
 the sole ground upon which a person c?ai 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 that acts of holding 
 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.^ 
 
 1 Rimel v. Hayes, 83 Mo. 200, 209. occasion Harrington made a similar 
 
 Nevertheless several of the few cases note, and Hill remonstrated and 
 
 in which this apparently obvious made Harrington promise not to use 
 
 principle was brought directly to the ^^'^ name so as to hurt him ; and this 
 
 attention of the court seem to have ^as construed to mean not to use 
 
 disregarded it. In Smith v. Hill, 45 ^^^ °ame beyond an ability to indem- 
 
 Vt. 90 (12 Am. Rep. 189), Harrington nifj !"•». 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, Slader. Pasciial, 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
 
 § 99. NATURE AND FORMATION. 
 
 § 99. What constitutes a holding out.— 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. & Gr. 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 the 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. 
 
 fendants gave the bond to obtain a 2Hinnian v. Littcll, 23 Mich, 484. 
 
 tavern-keeper s license was admitted 3 Gilbraith v. Lineberger, G9 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 F. & 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.^ 
 
 § 1 00. retaining tlie 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 
 nam^ 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. Beveridge, 3 MacAr- Dorn, 34 Ga. 213, Especially where 
 
 thur (D. C), 597. it is the principal part of tlie firm 
 
 2Martyn v. Gray, 14 C. B. N. S. name and is retained by consent, 
 
 824, 841. Speer v. Bishop, 24 Oh. St. 598. That 
 
 3 Bourne v. Freeth, 9 B. & C. 632; merely keeping the old name over 
 Reynell v. Lewis, 15 M. & W. 517. the door is not sufficient of itself to 
 And see § 79, supra. render the retired partner liable, 
 
 4 And see Notice of Dissolution. Boyd v. McCann, 10 Md. 118. See 
 Re Krueger, 2 Low. 66; 5 Bankr. Newsome r. Coles, §97, sitpra. And 
 Rrg. 439; State v. Wiggin, 20 Me. the fact 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 
 V. Brewster, 31 Vt. 516; Fleming u. Mich. 452, 456. 
 
 117
 
 § 101. NATURE AND FORMATION. 
 
 the old name, 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 sold 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. Y. 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. Pickard (Utah), 9 Pac. < Barcrof t v. Haworth, 29 Iowa, 
 Rep. 573; French v. Barrow, 49 Vt. 462; Manson, Town of, v. Ware, 63 
 471. Iowa, 345; Burgan v. Gaboon, 1 Pen- 
 
 2 Edmundson v. Thompson, 2 F. & nypacker (Pa.), 320 ; Lewis v. Alex- 
 'f. 564. ander, 51 Tex. 578. 
 
 3 Sun Ins. Co. v. Kountz Line, 122 SBHss v. Swartz, 7 Lans. 187; 64 
 U. S. 583; Bruginan v. McGuire, 32 Barb. 215. 
 
 Ark. 733; Sherrod v. Langdon, 21 ewooilward v. Clark, 30 Kan. 78: 
 Iowa, 518; Parsliall v. Fisher, 43 Thomas v. Green, SO Md. 1; Ri(pey 
 Mich. 529; Smith v. Smith, 7 Foster v. Evans, 22 Mo. 157; Gates v. Wat- 
 (N. II.), 244; Shafer v. Randolph, 99 son, 54 Mo. 585. 
 
 Pa. St. 250. 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 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, for the price of which the note in suit was given, in boxes 
 marked with a firm name composed of defendants' names, was held 
 sufiicieut evidence of a holding out. 
 
 In Humes v. O'Bryan, 7-i Ala. 64, 83, it was said that the fact 
 that two persons were actually partners in a planting or farming 
 business was a link in the evidence to prove that 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 firm.^ 
 
 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 SheiTod V. Langdon, 21 Iowa, the doctrine that a name in the firm 
 518. style is proof of actual and not nom- 
 
 2 Maxwell u. Gibbs, 33 Iowa, 32. inal partnership, if such were the 
 ^ The case might be sustained on law. See § 98. 
 
 119
 
 g 104. NATURE AND FORMATION. 
 
 other in relation to the property in the absence of liabihty 
 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, 
 though 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 no joint assets.^ 
 
 § 104. Strangers, how affected. — From the fact that the 
 liability is only to those who gave credit, it follows 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. Smith, 17 111. 565, S., a banker, under the name of 
 S. & Co., employed a teller, 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. 
 
 tingu Colt, 7 N. J. Eq. 539. In the 3 Glenn v. Gill, 2 Md. 1; Kerry, 
 latter case, however, p. 543, it was Potter, G 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. 292; 33 
 
 complainant's conhdence and showed Am. Dec. 614; Partridge V. King- 
 
 a disposition to withdraw the assets man, 130 Mass. 476. 
 
 120 '
 
 BY HOLDING OUT OR ESTOPPEL. § 105. 
 
 of the case as an authority is, however, dimiuished by the fact 
 that W. was an actual partner.* 
 
 § 105. Creditors, how 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, ordei* 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 Be Rowland, L. R. 1 Ch. App. 421, C. contracted to employ 
 R. on a salary and share of profits, they 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 Hay man, 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- 
 
 Minot, 19 Gush. 592, 595-6, where ject to the correlative right of pri- 
 
 creditors of a firm desiriug to share ority of separate creditors in the 
 
 imri passu with the individual cred- separate estate. The contrary, how- 
 
 itors of one partner in his separate ever, was 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 firm was nominal merely; knew he was no partner. Kerr v. 
 
 but the court said that as the parties Potter, 6 Gill, 404, and Glenn v. 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 
 doctrine 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 lien upon the assets as 
 against the creditors of the business establishment or sup- 
 posed firm. Again, the creditors' priority arises out of and 
 
 1 Elliot V. Stevens, 38 N. H. 311. 
 
 2 Molina Wagon Co. v. Rummell, 2 
 McCrary, 307 ; 12 Fed. Rep. 658 ; 14 
 id. 155. And see Birksu. French, 21 
 Kan. 238; Hamill v. Willett, 6 
 Bosw. 533; Grasswitt v. Connalij'-, 27 
 Gratt. 19; Ee 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 
 tiie nominal partners, but upon an 
 expected priority in the partnership 
 pro[)erty, and on this ground the 
 actual partner and those claiming 
 under him, as his assignee for the 
 benefit of creditors, have been lield 
 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 -y. Scott, 49 N. 
 Y. 595. And see Hillman v. Moore, 3 
 Tenn. Ch. 454. 
 
 In Williams v. Butler, 35 111. 544, 
 
 Mrs. A., living in Massachusetts, 
 gave her son general power of attor- 
 ney to manage and invest for her in 
 Chicago. He made a partnership be- 
 tween her and W. as W. & Co., 
 which was carried on for two yeara 
 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 in the prayer. 
 The prayer was granted, on the 
 ground that ratification of the agent's 
 act established a partnership, and, 
 tliough generally ratification will 
 not relate back to cut off intervening 
 rights, yet for the protection of a 
 clearly superior equity it would 
 do so. 
 
 122
 
 BY HOLDING OUT OR ESTOPPEL. § 107. 
 
 through the equity of each partuer 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 and in 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. iDartner, 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, 64Tex. 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 incase sgcuU's Appeal (Pa. 1886), 7 Atl. 
 
 of a nominal partnership. Whit- Rep. 588; Miller u Creditors, 37 La. 
 
 worth V. Patterson, 6 Lea, 119. And Ann. G04; 2 Bell's Com. on Law of 
 
 a mortgagee of a person is not pre- Scotland, 625. 
 
 vented by the fact that the mort- ^Bonfield v. Smith, 12 M. & "W. 
 
 gagor holds himself out to others as a 405 
 
 123
 
 § 107. NATURE AND FORMATION. 
 
 but one firm; but if there is a partner in one who is not in 
 the otlier, they are distinct firms. 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 will 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 with 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 beUeving he is dealing with the firm he ia 
 not dealing with, and in such cases he can hold the other firm.* 
 
 Where a father sold out his busine&s to his son, 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 
 
 c-ided tliat if several firms had the Biss. 442. 
 
 same name, a partner in one could » Jones v. Parker, CO N. H. 31. 
 
 not show that a bill in the firm name * Fosdick v. Van Horn, 40 Oh. St. 
 
 Avas drawn on account of the part- 459. 
 
 nersiiip in which he was not a 5 gpencer u. Billing, 16 Oli. St. 75; 
 
 member. In McNair v. Fleming, Gushing v. Smith, 43 Tex. 261 ; Beall 
 
 cited in Davison r. Robertson, 3 Dow. v. Lowndes, 4 S. Ca. 258; Hastings 
 
 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 liolder 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. *> Preston v. Foellinger, 24 Fed. 
 
 2Elkin V. Green, 13 Bush, 612; Rep. 680. 
 
 Gushing v. Smith. 43 Tex. 261 ; Hast- ^ Elverson v. Leeds, 97 Ind. 336 ; 49 
 
 ings Nat. Bk. v. Hibbard, 48 Midi. 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 puhlic, 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 with the former, 
 it was held she could recover for the loss of her gold from 
 the former.^ 
 
 § 109. Actions by 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 other 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 issue 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. v. Brown, 16 Oh. trager, 60 Iowa, 374; Campbell v. 
 St. 75. See, also, S. P. Cushing v. Hood, 6 Mo. 211; Eippey v. Evans, 
 Smith, 43 Tex. 261 ; Beall v. Lown- 22 id. 157 ; Young v. Smith, 25 id. 311 ; 
 des, 4 S. Ca. 258. Eimel v. Hayes, 83 id. 200; Reber v. 
 
 2 Nichols V. James, 130 Mass. 589; Columbus Mach. Mfg. Co. 12 Oli. St. 
 Rice V. Barrett, 116 Mass. 312 ; Fisher 175 ; Reed v. Kremer, 111 Pa. St. 482 ; 
 V. Bowles, 20 111. 396; Brugman v. Hicks u. Cram, 17 Vt.449; Sherman 
 McGuire, 32 Ark. 783; Maxwell v. v. Kreul, 42 Wis. 33, 40. 
 
 Gibbs, 32 Iowa, 32; Hancock v. Hin- 
 
 125
 
 § 109. NATURE AND FORMATION. 
 
 a partner; ^ certainly unless he also show plaintiff knew 
 of it. 2 
 
 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 u Hayes, 83 Mo. 200. 
 
 credit he did the work, hut not that 3 Scarfe v. Jardine, L. B. 7 App. 
 
 he would not have done it on the Gas. 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 w^ar with this, even bring 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.' 
 
 1 Evans 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. dier. Jac. 225; 6 Madd. 141, of an or- 
 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, 2 Ves. & B. profits as salary was called illegal, 
 
 323. See § 582. as an evasion of the statutes, in 
 
 5 Read v. Smith, 60 Tex. 379. Tench v. Roberts, 6 Madd. 145; Re 
 
 6 Scott V. Miller, H. V. Johns. 220. Jackson, 1 B. & C. 270; Ee Clark, 3 
 T Turner v. Reynell, 14 C. B. N. S. D. & R. 260 ; Hopkinson v. Smith, 1 
 
 328; Harland 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 FOLIATION. 
 
 § 11 1. ill pulilic 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 oflBce. As in the 
 office of sheriff,' or of a district attoruej'';^ 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 
 v^ill be granted between them; ^ nor in the profits of a licensed 
 Indian trader.^ Attorneys at law are not officers, and a partner- 
 ship betweeu them is legal. ^ Tlie 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.* 
 
 §112. As to occupation. — A partnership maybe 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, 
 
 liarl he not done so the rule of Cox u, l Jones v. Perchard, 2 Esp. 507; 
 
 Hickman would have required the Canfield v. 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 ^Bowen v. Richardson, 133 Mass. 
 
 iron 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. Gtiswold, 8 Wend. 665. 
 the partners, see Cameron v, Bick- ■? Wolcott v. Gibson, 51 111. 69. 
 ford, 11 Ont. App. 52. 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 from 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 buj' 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 corubination to bid at execution sales, is not illegal Avhen not 
 amounting to an agreement 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 com- 
 petition or furnish 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; Craft. «. 
 
 Watson V. Fletcher, 7 Gratt. 1. Or McConoughy, 79 III. 346. 
 
 lottery. Watson v. Murray, 23 N. J. 4 Sampson v. Shaw, 101 Mass. 145. 
 
 Eq. 257; Sykeg v. Beadon, L. R. 11 sPairbank v. Newton, 50 Wis. 628; 
 
 Ch. D. 170. Fairbank v. Leary, 40 id. 637. 
 
 2 Faikney v. Reynous, 4 Burr. 6 King v. Winants, 71 N. Ca. 469; 
 
 2069; Petrie v. Hanway, 3 T. R. 418; Hunt v. Pfeiffer, 108 lud. 197. 
 
 Patterson's Appeal (Supreme Ct. Pa. 7 Breslin v. Brown, 24 Oh. St. 565. 
 
 1883), 13 Weekly Notes of Cas. 154; But see Woodvvorth v. Bennett, 43 
 
 Wann v. Kelly, 5 Fed. Rep. 584; N. Y. 273. 
 
 Tenney v. Foote, 95 111. 99; Williams 8 Dudley v. Little, 2 Oh. St. 504. 
 
 V. Connor, 14 S. Ca. 621. 9 Piatt v. Oliver, 2 McLean, 207. 
 
 8 Salt Co. V. Gutlirie, 35 Oh. St. lo Marsh v. Russell, 66 N. Y. 288 
 
 666 ; Morris Run Coal Co. v. Barclay (rev. 2 Lans. 340). 
 Vol. 1 — 9 129
 
 § 114. NATURE AND FORMATION. 
 
 lature b}' 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 Toitl l)y law; war. — So, where a class of 
 contracts is made void by law, a partnership for such traffic 
 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 foi-bade 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 military occupation, or with the 
 enemy or in the enemy's commodities;^ as trafficking in 
 Confederate money.* In such 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. Ruckraan, 28 N. J. Eq. 614, a partnership was 
 formed in New Jersey to plant oysters 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; McGunn v. Hanlin, 29 Mich. 476; reported. 
 
 Tucker v. Adams, 63 N. H. 3G1. ^ Stewart v. Mcintosh, 4 Har. & J. 
 
 2 Kelly V. Devlin, 58 How. Pr. 487. 233. 
 
 3 Suell V. Dvvight, 120 Mass. 9 ; Dun- ' Gould v. Kendall, 15 Neb. 549. 
 ham V. Presby, 120 id. 285; Lewis v. 8 Sharp v. Taylor, 2 Phil. Ch. 801. 
 Alexander, 51 Tex. 578. In Durant v. Rhener, 26 Minn. 363, 
 
 < Anderson v. Whitlock, 2 Bush, it was even held that partnership 
 398; Pfeuffer v. Maltby, 54 Tex. 454. formed on Sunday was void; and 
 
 5 The Cheshire, 3 Wall. 231; Prize contra if formed subsequently in 
 Cases, 2 Black, 635 ; U. S. v. Hallock, pursuance of an agx-eement made ort 
 U. S. Supreme Ct. Book 17, Lawy. Sunday. 
 
 130
 
 ILLEGAL PARTNERSHIPS. ■ § 116. 
 
 latter, and this ngreemeut was held valid between the partners, 
 though it woukl 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 where the business of the firm is to act as agent 
 for others, and the partnership receives a bribe or commis- 
 sion from the parties with 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. More}'', 39 Yt. 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 ground 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 upon 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- 
 
 iCase V. Fish, 58 Wis. 56, 105-7; < See § 121. 
 
 Cunninghatn v. Green, 23 Ohio St. SBennet v. Woolfolk, 15 Ga. 213. 
 
 296. As to partnerships carried on under 
 
 2 Todd V. Rafferty, SO N. J. Eq. 254; an illegal name, as where a statute 
 
 Northrup V. Phillips, 99 111. 449. forbids the use 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 gambhng firm bought and used a house for gaming 
 purposes, the surviving partner cannot impeach tlie title of his 
 partner's grantor on that ground; '^ but in McPherson v. Pemberton, 
 1 Jones' L. 378, it was held that persons who 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. J udicial 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. 
 8 In case of the illegality of a < Meymot's Case, 1 Atk. 198, 199. 
 
 patent in which a firm is formed to * Williams v. Connor, 14 S. Ca. 
 
 deal, the patentee not being the orig- 631. 
 
 inal and first inventor, an account- 6 Whitcher v. Morey, 39 Vt. 459. 
 
 ing between the partners may be had ; And see Fan-bank v. Leary, 40 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. 
 
 132
 
 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 accountSj and nothing re- 
 mains but to pay over. This is disputed. 
 
 I. 
 
 § 1 1 0. 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, will 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 
 twohigliwaymen, whether legendary or not, is far from un- 
 instructive, since it shows by a reductio adabsurdum 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 given in 
 Lindley on Partnership and Pollock on Contracts by G. W. 
 Wald.' 
 
 1 Everet v. 'Williams, 3 Pothier on in the said business with good suo- 
 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 tlie piaiotifT was skilled in deal- watch, and afterwards the said 
 ihg 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 dlesex, 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 afore- 
 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 ac- 
 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 
 
 133
 
 §119. 
 
 NATURE AND FORMATION. 
 
 This was held of a partnership in a lottery or a gambling 
 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 bidders 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 
 BlackheatU who had a good horse, 
 saddle, bridle, watch, sword, cane 
 and other things to dispose of, which 
 he believed might be liad for little or 
 no money; and they accordingly 
 wen.t and met with the said gentle- 
 man, and after some small discourse 
 they dealt for tlie said horse, etc, ; 
 that your orator and the said Joseph 
 Williams continued their joint deal- 
 ing together until Michaelmas, and 
 dealt togetlier in several places, viz., 
 at Bagshot in Surry, Salisbury in 
 Wiltshire, Hampstead in Middlesex, 
 and elsewhere, to the amount of 
 £2,000 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 
 Ginller, 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 £30 each; and ordered that 
 Jonathan Collins, Esq., the counsel 
 who signed the bill, should pay the 
 costs. The plaintiff was executed 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, 23 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. C37. 
 
 5 King V. Winants, 71 N. Ca. 469. 
 eSuell V. Dwight, 120 Mass. 9; 
 
 Dunham v. Presby, 120 Mass, 2S5; 
 Stewart v. Mcintosh, 4 Har. & J. 
 233; Lane v. Thomas, 37 Tex. 157. 
 
 ^ Sampson v. Shaw, supra. 
 
 8 Read v. Smith, 60 Tex. 379. 
 
 134
 
 ILLEGAL PARTNERSHIPS. § 120. 
 
 obtained the con tract, and sold out their 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- 
 utes 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 transaction would be de- 
 creed. 
 
 In Bowen v. Richardson, 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 trust or 
 fraud appears, it seems that an accounting will not be refused. 
 
 Thus, in Cameron v. Bickford, 11 Out. 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. 
 
 1 Woodworth v. Bennett, 43 N. Y. 5 Woodworth v. Bennett, 43 N. Y. 
 273. 273, of a partnership in a state 
 
 2 Durant v. Rhener, 26 Minn. 363. contract between an engineer of the 
 ■J Gould V. Kendall, 15 Neb. 549. state and a contractor. 
 
 ■ Evans V. Richardson, 3 Mer. 469. 
 
 135
 
 g 121. 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 take 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 his 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. Rafferty, 30 N. J. Eq. 2 Anderson v. Powell, 44 Iowa, 
 
 254 ; Northrup v. Phillips, 99 111. 449. 20. 
 
 A dictum in Woodworth v. Bennett, SBennet v. Woolfoik, 15 Ga. 213. 
 
 43 N. Y. 273, seems to imply that ^Lane v. Thomas, 37 Tex. 157, 
 
 an accounting has been carried to where part of the profits were based 
 
 the limit of including illegal gains upon traffic in Confederate money. 
 of a legal partnership. 
 
 136
 
 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 v^^here 
 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.^ 
 
 n. 
 
 § 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 all the illegal transactions, and have ascertained 
 
 1 Harvey V. Varney, 98 Mass. 118; maintain trespass q. c. f. against 
 Brigham v. Smith, 3 E. & A. (Up. one wlio seized their goods. 
 Can.) 46. Contra, McPherson v. 2See Anderson u.Whitlock, 2 Bush, 
 Pemberton, 1 Jones, L. 378, holding 398, 404-5 ; 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 between 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. 
 
 § 125. Brooks t. Martiu. — The leading and much-criti- 
 cised case granting relief in this class of cases is Brooks v. 
 Martin, 2 Wall. 70. In that case a partnership was formed 
 to buy up soldiers' 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 
 
 133
 
 ILLEGAL PARTNERSHIPS. g 126. 
 
 is filed. Dogs it lie in 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 wore illegal, 
 have become accomplished facts and cannot be aifected by 
 any action of the court in this case." 
 
 The case of Brooks v. Martin relied upon the earlier English 
 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 Cotten"h^m 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 illegal 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 lottery. An action was brought 
 against its trustees for breach of trust, which had caused a loss ot 
 part of the fund. Jessel, 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 Pfeuffer 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 Pfeiffer v. Maltby, selling pools, and the illegality was 
 38 Tex. 523, a caseof tratficking with said to appear incidentally only, 
 the enemy (but Pfoufler u 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 tiie highwaymen in 
 V. Martin). Lewis v, Alexander, 51 Everet v. Williams invested their 
 Tex. 578, also a case of prohibited profits in other forms, an accounting 
 traffic during the war; Attaway v. would have been granted, unless we 
 Third Nat'l B'k, 15 Mo. App. 577; distinguish between ma^awi in se and 
 Wann v. Kelly, 5 Fed. Rep. 584, malum prohibitum. 
 
 140
 
 ILLEGAL PARTNERSHIPS. § 127. 
 
 Che security was held enforceable as a new contract not in- 
 fected by the original transaction.^ 
 
 So wliere 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 only 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 Belcher v. Conner, 1 S. Ca. 88, a partnership to buy and sell 
 slaves. The constitution, article 4, section 34, made contracts the 
 consideration of which is the purchase of slaves, null. A demand 
 
 J Faikney v. Reynous, 4 Burr. 2069 ; tinction between contracts made 
 
 Petrie v. Hanway, 3 T. R. 418. with specific reference to direct aid 
 
 Woodworth v. Bennett, 43 N. Y. 273, 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 
 
 2Boggess 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 bet%veen 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 traffic in Confederate AVatson v. Fletcher, 7 Gratt. 1 ; Left- 
 money and cotton, where tlie dis- wich v. Clinton, 4 Lans. 176. 
 
 141
 
 §129. 
 
 NATURE AND FORMATION. 
 
 for an accounting between the parties was sustained on the theory 
 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 refusini? 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 
 
 iTodd V. Rafferty, 30 N. J. Eq, 
 254; Woodworth v. Bennett, 43 N, 
 Y. 273, where the fund was all in the 
 hands of one partner. Stewart v. 
 Mcintosh, 4 Har. & J. 233, 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. 
 Cas. 154, whei-e 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 covirt 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 its bene- 
 fits, no action by him for a share of 
 profits will lie. Gould v. Kendall, 15 
 Neb. 5-19, 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 
 between 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 pa)-, 
 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 incase 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 is 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, §§ 27-29. with the product, it would be. 
 
 2 Fabian v. Callahan, 56 Cal, 159. ^McCord v. Seale, 56 Cal. 262. 
 
 3 Pinkerton v. Ross, 33 Up. Can. Q. 5 Ralph v. Lockwood, 61 Cal. 155. 
 B. 508, the court saying, p. 514, that 6 Tucker v. Adams, 63 N. H. 361. 
 a firm making bricks on its own ^ Byers r. Bourret, 64 Cal. 73. 
 land would not be within the statute, 8 Sweeney v. Stanford, 67 Cal. 635. 
 whereas if it purchase the clay, 9 Cheney v. Newberry, 67 Cal. 126. 
 
 143
 
 CHAPTEK VII. 
 
 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 vvhat 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 partnersliip with an individual or with an- 
 
 IMagdalena Steam Nav. Co. v. s.SeegllO. 
 Martin, 2 E. & E. 94. « 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 Locomotive & Macb. 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 tbe 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 iilt7'a vires was no- 
 defense in an action by an injured passenger against two raih-oad 
 corporations which bad 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.* 
 
 iWhitteuton Mills v. Upton, 10 (N. H.) 13 Am. and Eng. R. R. Cas. 94; 
 Gray, 583 ; 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, 29 111. 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 wt-re said to be partners in 
 ex rel. Pearson v. Concord R. 11. Co. Cutskill 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 sui'viv- 
 ing partners and the representatives 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. 288, 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.) 540, 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 
 
 B. c. at an earlier stage, Catskill B'k i A corporation was also a partner 
 V. Gray, 14 Barb. 471, 582. in Jones v. Parker, 20 N. H. 31, 
 
 14G
 
 PERSONS COMPOSING THE FIRK g ICG. 
 
 ttie 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 
 states, 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, I 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 huslband 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. ^ 
 
 I See Hot Springs R. R. v. Trippe, v. Vanderbilt, 19 Barb. 233. And see 
 
 43 Ark. 465; 48 Am. Rep. 65; Ells- supra, §65. 
 
 worth V. Tartt, 26 Ala. 733 ; 63 Am. 2 Thus, where the husband has 
 
 Dec. 749; Irvin u. Nashville, C. & St. been absent and unheard from for 
 
 L. R'y, 92 111. 103; 34 Am. Rep. 116; seven years, see Brown v. Jones, 18 
 
 Tratt V. Ogdensburg & Lake Cham- N. H. 230. 
 
 plain R. R. 103 Mass. 557, 5G7 ; Briggs 3 piumer v. Lord, 5 Allen, 460; Ab- 
 
 147
 
 gl37. 
 
 NATURE AND FORMATION. 
 
 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 
 from the husbands, since they are agents and not owners.^ 
 
 But where the statutes give her no power or only a limited 
 power to become 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/ Noi- 
 can bis 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. 212 ; Dupuy 
 V. Sheak, 57 Iowa, 361; Silveus v. 
 Porter, 74 Pa. St. 448; Newman v. 
 Morris, 52 Miss. 402. 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 appeal's: Craig 
 V. Cliandler, 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. 
 Raymond, 27 Wis. 569; Atwood v. 
 Meredith, 37 Miss. 635; Bitter v. 
 Rathman, 61 N. Y. 512; Penn v. 
 Whitehead, 17 Gratt, 503. A mar- 
 ried executrix of the estate of a de- 
 ceased partner, the firm being con- 
 tinued by wife, is not a partner, for 
 she receives profits as executrix and 
 not from her own estate. Brasfield 
 i\ French, 59 Miss. 632. Of the 
 above cases the husband was the 
 wife's manager in the conduct of the 
 business in Kutcher v. WilUams, 
 40 N. J. Eq. 436 ; Penu v. Wliitehead, 
 
 17 Gratt. 503; Atwood v. Meredith, 
 37 Miss. 635; Newman v. Morris, 53 
 Miss. 402; Dupuy v. Sheak, 57 Iowa, 
 361. 
 
 2Bradstreet v. Baer, 41 Md. 19; 
 Frank v. Anderson, 13 Lea (Tenn.), 
 695; Carey v. Burruss, 20 W. Va. 571; 
 43 Am. Rep. 790; Brown v. Jewett, 
 
 18 N. H. 230; Todd v. Clapp, 118 
 Mass. 495; and dicta in Howard t?. 
 Shaw, 91 Ind. 384; 46 Am. Rep. 607; 
 Brown v. Chancellor, 61 Tex. 437, 445; 
 Miller v. Marx, 65 id. 131; Howard 
 V. Stephens, 52 Miss. 239. Neverthe- 
 less tlie question was raised wliether 
 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. 239. 
 
 <Maghee v. Baker, 15 Ind. 254; 
 Horneffer 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 Horneffer v. Duress, supra. 
 
 •Frank v, Anderson, 13 Lea, 695. 
 148
 
 PERSONS CO^IPOSING THE FIRM. § 138. 
 
 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.* 
 
 8 138. 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. 512. 6 Alexander v. Morgan, 31 Ob. St. 
 
 2 Carey v. Burruss, 20 W. Va. 571 ; 546. 
 
 43 Am. Rep. 790. Ud. 551. 
 
 3 Newman v. Morris, 52 Miss. 402; 8 National Bank v. Sprague, 20 N. 
 Miller v. Marx, 65 Tex. 131. And see J.Eq. 13. The reversal of this case 
 Clay V. Van Winkle, 75 Ind. 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 Bradstreet 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 was rate property it would 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)iliiy, because the partnership prop- may tlierefore join him as defend- 
 crty was bound for the debts. .ant, and she may be stricken out of 
 
 ^ Miller v. Marx, 65 Tex. 131; the judgment, his consent to the 
 Cranor v. Winters, 75 Ind. 301, 303. rendition of the judgment being 
 
 5 Swasry V. Antram, 24 Oh. St. 87 ; deemed a ratification of her purchase 
 13 Am. Law Reg. (N. S.) 577. of goods the price of which waa 
 
 149
 
 ^ 139. 
 
 NATURE AND FORMATION. 
 
 And where the hushand is allowed to act and appear ag 
 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 husfeand. — 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 give 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 business in his own 
 name, he, and not she, is liable for 
 the debts thereafter contracted, 
 Hamilton v. Douglas, 46 N. Y. 218. 
 
 iParshall v. Fisher, 43 Mich. 529; 
 Norris v. McCanna, 29 Fed. Rep. 757. 
 
 2 Lord V. Parker, 3 Allen, 127 ; 
 Plumer v. Lord, 5 id. 4C0; S. C. 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. Now Cas. 
 341; 67 How. Pr. 293; Kaufman v. 
 Schoeffel, 37 Hun, 140 {contra, Graff 
 V. Kinney, id. 405 ; 15 Abb. N. Cas. 
 397) ; Wallace v. Finberg, 46 Tex. 35; 
 Cox V. Miller, 54 Tex. 16; Boyle'a 
 Estate, Tucker (N. Y.), 4; Brown v. 
 Chancellor, 61 Tex. 437, 445; Mdler u. 
 Marx, 65 id. 131 ; Cosio v. De Bernales, 
 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, 
 142, 150; Wilson v. Looniis, 55 111. 
 352; Huffman v. Copeland, 86 Ind. 
 224. 227; Sherman v. Elder, 1 Hilton 
 (N. Y.), 178; Chambovet v. Cagney, 
 35 N. Y. Superior Ct. 474; and lli > 
 point was raised but not decided in 
 
 150
 
 PERSONS COMPOSING THE FIRM. 
 
 §140. 
 
 The partnership assets are liable for the partnership dehts; as 
 where 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 in 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. Dickel, 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 cases 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 
 lawin Fairlee V. Bloomington, supra; 
 Ploss V. Thomas, 6 Mo. App. 157, in 
 which case it was admitted that con- 
 tracts were not enforceable against 
 her; Edwards v. McEnhill, 51 Mich. 
 160, the court refused to decide the 
 point, saying that if she had such 
 capacity the facts showing it must 
 l)e stated; and In re Kinkead, 3 
 Biss. 405; 7 Bankr. Reg. 439 (U. S. 
 D. C. 111.), wherein Blodgett, J., 
 says: "lean see nothing in the re- 
 lation of husband and wife which 
 would prevent the wife from being 
 her husband's partner in business if 
 she could be a partner with any 
 other person." In Graff v. Kinney, 37 
 Hun, 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- 
 rate property, on the ground that she 
 could employ him as agent, and a 
 
 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 liad a dormant part- 
 ner, viz., her husband, but is held to 
 the truth of the appearance ahe 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. 500. That the other part- 
 ners cannot deny her a share in the 
 profits (the husband does not appear 
 to claim it as his in this case), Knott 
 V. Knott, 6 Oregon, 142, 150. That 
 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 husband, but is liable for 
 his debts, Wilson v. Loomis, 55 111. 
 352. That it ceases to be her sepa- 
 rate property and becomes his. Lord 
 V. Parker, 3 Allen, 127, 129; and dio- 
 tuvi in Sherman v. Elder, 1 Hilt. 
 (N. Y.) 178. Where both are in the 
 "business" of carrying on a farm. 
 
 151
 
 3 142. NATURE AND FORMATION. 
 
 § 14:1. Wife's claim agaiust her husband's firm. — Where 
 the wife of one of the partners lent money to or performed 
 service for the firm, or wlaere a woman wlio is creditor of a 
 firm marries one 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 fii-m ; ^ 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. 
 
 § 142. Voidable, 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- 3 Kenworthy v. Sawyer, 125 Mass. 
 
 erty, both were held liable on a joint 28; Edwards v. Stevens, 3 Allen, 315. 
 
 note, on the principle that she can < Kenworthy v. Sawyer, 125 Mass. 
 
 incur debts on the credit of her sep- 28, 29. 
 
 arate property. Krouskop v. Shontz, 5 id. 
 
 51 Wis. 204, 217. « Lord v. Davis, 3 Allen, 131. A 
 
 1 Bennett v. Winfield, 4 Heiok. wife was creditor of the firm of A., 
 (Tenn.)440; Devinu. Devin, 17How. B. & C. 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, 502; 36 id. 380; Benson v. Mor- ments by him 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 of 
 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 
 
 *Fox V. 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 forming 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. Riglits and powers inter se. — While the mfant 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, 36 Mich. 48. party to a suit for an accounting, 
 
 1 Goode V. Harrison, 5 B. & Aid. McGunn v. Hanlin, 29 Mich. 476. 
 
 147; Whitney v. Dutch, 14 Mass. 2 Kemp v. Cook, 18 Md. 130, 138. 
 
 457 ; 7 Am. Dec. 229 ; Dunton v. 3 Thus, where au infant was a secret 
 
 Brown, 31 Mich. 182, and the numer- 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. Whiteliead, 17 Gratt. 503. 
 
 153
 
 § 144. NATURE AND FORSIATION. 
 
 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 iufant 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 must payback the whole amount, although the infant waa 
 unable to restore his share.^ 
 
 § 1 44. 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. Linthicura, 59 Md. 344, 349. sideratiou of an outfit to enable him 
 
 2 Id. 355. to go to California on a mining ad- 
 8 Stein V. Robertson, 30 Ala. 286. venture, agreed to give one- third of 
 4 Brown v. Hartford F. Ins. Co. the profits to the person wl)o fur- 
 
 117 Mass. 479. nished the outfit, and having sent 
 
 5 Gay u Jolinson, 32 N. H. 167. back the agreed one-third of the 
 
 <>Bush V. Lintliicum, 59 Md. 344 profits, sought to rescind and recover 
 
 (holding tliat he cannot be made per- them again, deducting tlie amount 
 
 eonally answerable for the costs); of the outfit; but tiie 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 com- 
 
 Judd, 1 Gray, 455, an infant, in con- pensation for his risk. 
 
 154
 
 PERSONS COMPOSING THE FIRM. § Uo. 
 
 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 disaffirmance 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. Ratiflcatiou. — 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 continuauce was deemed not to show sucli 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 * 
 
 1 Page V. Morse, 128 Mass. 99 ; a partnership, he cannot recover it \ 
 
 Moley V. Brine, 120 Mass. 324; Dun- back, and consequently could not 
 
 ton V. Brown, 31 Mich. 182. In Dun- prove it against his partner's estate 
 
 tonv. Brown, 31 Mich. 182, 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. 229. 
 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- ler u. 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 
 Keiin, 83 N. Y. 245, however, he with the goods for whicli 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, 3 Cush. 372, 376, 
 In Ex parte Taylor, 8 De G. M. & G. to go beyond any case within the 
 254; 25 L. J. Bkr. 35; 2 Jur. (N. S.) knowledge of the court. 
 220, it_was_decixled that if an infant ■•Minock v. Sliortridge, 21 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 new 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 contracts 
 
 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 contrary.* 
 
 §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 the 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 
 
 iKeegan v. Cox, 116 Mass. 289. Bush v. Linthicum, 59 Md. 344, 349; 
 
 2 Dana u. Stearns. 3 Gush. 372,376. Whittemore v. Elliott, 7 Ilun, 518. 
 
 3 Todd V. Clapp. 118 Mass. 495. See Furlong v. Bartlett, 21 Pick. 401. 
 *Kemp V. Cook, 18 Md. 130. A minor, whose contribution to the 
 6Goode V. Harrison, 5 B. & Aid. capital of the firm was $1,000, but 
 
 147. But see King v. Barbour, 70 who had sold out liis interest to his 
 Ind. 35. copartner for that sum, and thus 
 
 6 Yates u. Lyon, 61 N. Y. 344, 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. Actious l)y and against. — In actions to collect de- 
 mands due tlie 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 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; moreover, he has a right to be heard.^ 
 
 On plea of infancy by the minor defendant, plaintiff may 
 reply confirmation of the contract by him after coming of 
 
 age. 
 
 § 149. Jndgment 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, Vansyckle v. 
 Rorback, 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, 210; 
 Osburn v. Farr, 42 Mich. 134. A 
 dictum to the contrary occurs in 
 Phillips V. Penny wit, 1 Ark. 59. 
 
 3 Wamsley v. Lindenberger, 3 
 Rand. (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 
 proper not to join him as defendant; 
 and when his nou-joiniler was 
 pleaded, to reply that tlie partner not 
 joined was an infant. Burgess v. 
 
 Merrill, 4 Taunt. 408; Gibbs v. Mer- 
 rill, 3 id. 307; Jaff ray u. 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 omitted 
 partner, as in some states in the 
 cases of married women. 
 
 4 Kirby u. 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 
 on plea of infancy, judgment can go 
 against the adults. Tuttle v. Cooper, 
 10 Pick. 281; Hartness v. Thompson, 
 5 Johns. 160. 
 
 167
 
 § 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; 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 firm. — 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 
 
 iWliitteniore v. Elliott, 7 Ilun, Mason v. Denison, 11 Wend. dVZ 
 518; Gay v. Johnson, B2 N. H. 167. (affd, 15 id. G4J. 
 
 2'A statute authorizing a judgment 3 See, also, Raymond v. Putnam, 
 against all joint debtors, though 44 N. H. IGO; Gulick v. Gulick, l4 
 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, G Cal. 
 
 1G3; Bullock v. Hubbard, 23 id. 495. 
 153
 
 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 
 essential, independent of the manner of exposure; and un- 
 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 have been thouglit 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 
 
 1 Metcalf r. Officer, 1 McCrary, 325 ; SGoddard v. Pratt, 16 Pick. 412, 
 
 2 Fed. Rep. 640; In re Ess, 3 Biss. 429; Metcalf v. Officer, 1 McCrary. 
 
 301; Cregler v. Durham, 9 Ind. 875; 325; 2 Fed. Rep. 640; North v. Bloss, 
 
 Kelley v. Hurlburt, 5 Cow. 534; 30 N. Y. 374, 379; Cregler v. Dur- 
 
 Davis V. Allen, 3 N. Y. 108; North v. ham, 9 Ind. 375; Hunter r. Hubbard, 
 
 Bloss, 30 N. Y. 374, 3S0 ; Fosdick v. 26 Tex. 537. 
 
 Van Horn, 40 Oil. St. 459. < Smith v. Burnham, 3 Sumner, 
 
 2 Evans v. Drummond, 4 Esp. 89; 435; Pitts v. Waugli, 4 Mass. 424; 
 
 U. S. Bank v. Binney, 5 Mason, 176 Patterson v. Brewster, 4 Edw. Ch. 
 
 (aff'd as Winshipu. Bank of U. S. 5 352; Speake v. Prewitt, 6 Tex. 252 
 
 Pet. 529) ; Boyd v. Ricketts, 60 Miss, (a dictum). 
 
 62; Deering v. Flanders, 49 N. H. 5 Chester u. Dickerson, 54 N. Y. 1, 
 
 225; Clark v. Fletcher, 96 Pa. St. 416; 10; Benners v. Harrison, 19 Barb. 53, 
 
 Benjamin r. Covert. 47 Wis. 375, 3S2. 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. 143). And see more 
 
 Bank of U. S. 5 Pet. 529, 574. fully in the chapter on Real Estate. 
 
 159
 
 § 152. NATURE AND FORaiATION. 
 
 to sue such partner alone -without 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 inclnded in the firm 
 style, or under a general designation as & Co., 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 haa 
 a collective expression, the legal presumption is that both 
 partners are ostensible.^ 
 
 J De Mautort v. Saunders, 1 B. & < Shamburg v. Buggies, 83 Pa. St. 
 
 Ad. 398; Chase v. Deming, 43 N. H. 148; Clark v. Fletcher, 90 id. 416, 
 
 274, where he denied there were 419. Yet see Bernard v. Torrance, 5 
 
 others ; Clark v. Holmes, 3 Johns, Gill & J. 383. 
 
 148; Hurlbut v. Post, 1 Bosw. 28; ^See the facts in the following 
 
 Brown V. Burdsal, 29 Barb. 549; Cook- cases: Metcalf v. Officer, 1 McCrary, 
 
 iugham v. Lasher, 38 id. 656; 2 Keyes, 325 ; 2 Fed. Rep. 640 ; Warren v. Ball, 
 
 454; 1 Abb. Dec. 436; Farwell v. 37 III. 76; Kennedy y. Bohaiinon, 11 
 
 Davis, 66 Barb. 73; Worth v. Bloss, B. Men. 118; Goddard v. Pratt, 16 
 
 30 N. Y. 374, 380; Leslie v. Wiley, 47 Pick. 412, 428; Grosvenor v. Lloyd, 1 
 
 id. 648. See§ 1052. Met. 19; Benton v. Chamberlain, 23 
 
 ^Leveck v. Shaftoe, 2 Esp. 468; Vt. 711; Waite v. Dodge, 34 id. 181. 
 
 Bank of St. Marys v. St. John, 25 Ala. See Hagar v. Stone, 20 Vt. 106, 111. 
 
 566; Mitchell v. Dall, 2 liar. & Gill, 6 Metcalf v. Officer, 1 McCrary, 325; 
 
 159, 172; Cammack v. Johnson, 2 N. J. 2 Fed. Rep. 610 ; Shamburg v. Rug- 
 
 Eq. 163; Mason v. Connell, 1 Whart. gles, 83 Pa. St. 148, 151. But see facts 
 
 381,385; Jones u. Fegely, 4 Phila. 1; in Grosvenor v. Lloyd, 1 Met. 19, 
 
 Shamburg v. Riiggles, 83 Pa. St. 148, where I. Stone and D. Stone were 
 
 150; Speake v. Prewitt, 6 Tex. 252. partners as I. Stone & Co., but the 
 
 sphillips V. Nash, 47 Ga. 218; 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 articles 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 partnership, will 
 
 1 Bauk of St. Marys v. St. John, 25 ably not biud it ; citing Nicholson v. 
 Ala. 566; Mitchell v. Dall, 2 Har. & Ricketts, 2 E. & E. 524; Cleasby, 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 Cal. 
 459, 466. 163. 
 
 2 Waite V. Dodge, 34 Vt. 181 ; How ^Cammack v. Johnson, 2 N. J. Eq. 
 v: Kane, 2 Pin. (Wis.), 531 ; 2 Chand. 163. See Holme v. Hammond, supra. 
 222 (54 Am. Dec. 152). '•Kaskaskia Bridge Co. v. Shannon, 
 
 3 Choteau v. Raitt, 20 Oh. 132, 144-5. 6 111. 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 
 * If in fact he has no actual power Johnsou 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- 
 firm, it was said by Mr. Justice Lind- ner can wind up, see Bates' Limited 
 ley, Partnership, 238 (d), would prob- Partnership, j). 197, 
 Vol. I— 11 161
 
 §15G. 
 
 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 
 
 Gumbel 
 
 1 Ex parte Norfolk, 19 Ves. 455 ; £"0; 
 parte Law, 3 Deac. 541 ; Ex parte 
 Chuck, 8 Bing. 469 ; French v. Chase, 
 6 Me. 166; Lord v. Baldwin, 6 Pick. 
 348; Cammacku. Johnson, 2N. J. Eq. 
 16:3; 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, 
 123; 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, all the 
 
 property is treated as his. 
 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 his 
 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 Hoilgkinson, 19 
 Ves. 294; Ex parte Norfolk, 19 Ves. 
 455; Ex parte Cliuck, 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 hona 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 partnei*, Reynolds v. Bow- 
 ley, L. R. 2 Q. B. 474; Ex parte 
 Hay man, 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 could not, Talcott v. 
 Dudley, 5 111. 427. 
 
 163
 
 PERSONS COMPOSING THE FIRM. § 156. 
 
 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 part^ier, 
 but is made not only on his individual credit, but for his 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 
 contractu ^ihowgh. the plaintiff was ignorant of his 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 
 
 iWinship V. Bank of U. S. 5 Pet. Tucker v. Peaslee, 36 N. H. 167; 
 
 529; U.S. Bank r. Binney, 5 Mason, Bromley v. Elliot, 38 id. 287, 303; 
 
 176; Snead v. Barringer, 1 Stew. Johnston u. Warden, 3 Watts, 101; 
 
 134; Parker v. Caufield, 37 Conn. Lea v. Guice, 13 Sm. & Mar. 656; 
 
 350 ; 9 Am. Rep. 317 ; Phillips r.Nash, Gavin v. Walker, 14 Lea, 643 ; Brad- 
 
 47 Ga. 218 ; Holland v. Long, 57 id. shaw v. Apperson, 36 Tex. 133 ; Grif- 
 
 36, 40; Lindsey v. Edmiston, 25 111. fith v. Buffum, 23 Vt. 181; 54 Am. 
 
 359; Bisel v. Hobbs, 6 Blackf. 479; Dec. 64. 
 
 Gilmore v. Merritt, 63 Ind. 535; 2See /n ?-e Munn, 3 Biss. 443. 
 Scott V. Colmesnil, 7 J. J. Mar. 416; 3 Winship v. Bank of U. S. 5 Pet. 
 
 Kennedy r. Bohannon, 11 B. Mon.. 529 ; Gavin u. Walker, 14 Lea, 643. 
 118; St. Armand V. Long, 25La. Ann. ^ Johnston v. Warden, 3 Watts, 
 
 167; Bernard v. Torrance, 5 Gill & 101. 
 
 J. 383; Moale v. Hollins, 11 id, 11 ; * Gilmore i?. Merritt, 62 Ind. 325. 
 Richardson v. Farmer, 36 Mo. 35; 6 Lindsey v. Edmiston, 25 111. 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 
 funds, he v?as not liable to creditors.' 
 
 § 157. Rationale of liis liability. — The liability of a dor- 
 raant 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 hability 
 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 would have been 
 an election to take the signer alone, but here there is no op- 
 portunity to elect. The name of the signing partner will be 
 regarded as the firm name.* 
 
 DELECTUS PERSONARUM. 
 
 § 158. Partnership being a relationship created by agree- 
 ment and founded upon and requiring a degree of mutual 
 
 1 Mason r. Connell, 1 Whart. 381, 529; Parker v. Canfield, 37 Coun. 
 and Wood v. Connell, 2 id. 543. 250, 270(9 Am. Rep. 317); Grosvenor 
 
 2 Waugh V. Carver, 2 H. Bl. 235 ; for v. Lloyd, 1 Met. 19 ; Tucker v. Pea.s- 
 example, Phillips v. Nash, 47 Ga. 218 ; lee, 3G N. H. 167. 
 
 Lea V. Guice, 13 Sm. & Mar. 656; Fos- ^Snead v. Barringer, 1 Stew. 134; 
 
 dick V. Van Horn, 40 Oh. St. 459, 466. Parker v. Canfield, 37 Conn. 250 ; 9 
 
 aWinship v. Bank of U. S. 5 Pet.- Am. Rep. 317; 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. 35; Griffith v. Buffum, 23 
 
 *Winship v. Bank of U. S. 5 Pet. Vt. 181; 54 Am. Dec. 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 t;. Chamberlain, 2 Ves. Sr. Brainard, 38 Barb. 574; Mason v. 
 
 33; Crawford v. Hamilton, 3 Madd. Connell, 1 Whart. 381 ; McGlensey v. 
 
 254: Bray v. Fremont, 6 id. 5; Craw- Cox, 1 Phila. 387; Setzer v. Beale, 19 
 
 shay V. Maule, 1 Swanst. 495 ; Tatam W. Va. 274, 
 
 V. Williams, 3 Hare, 347. 3 Numerous authorities on the gen- 
 
 2Jefiferys v. Smith, 3 Russ. 158; eral proposition will be found under 
 
 Bank v. Railroad Co. 11 Wall. 024; Sub- partnership. 
 
 Jones V. Scott, 2 Ala. 58; Meaher v. ^Reis v. Hellman, 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. 391. 
 
 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. 
 
 § 1 60. Consent in advance. — The consent to the admis- 
 sion of a new member may be given in advance; 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 not 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. Ratification 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. 35i, Hill & James being partners 
 in a particular kind of business, James formed a partnership with 
 
 j 1 Fox V. Clifton, 9 Bing. 119; May- SMeaher v. Cox, 37 Ala. 201 ; Ros- 
 
 . hevv's Case, 5 De G. M. & G. 837. enstiel v. Gray, 112 111. 282. 
 
 2Lovegiove v. Nelson, 3 M. & K. CLove v. Payne, 73 Ind. 80; 38 
 
 1, 20. Am. Rep. 111. 
 
 3 Jefferys V. Smith, 3 Russ. 158. 'Tabb v. Gist, 1 Brock. 33; Mason 
 
 *McGlensey v. Cox, 1 Phila. 387; v. Council, 1 Whart. 381; Wood v. 
 
 5 Pa. L. J. 203; 1 Am. Law Reg. Connell, 2 id. 542. 
 
 ^O. S.) 34. « Buckingham v. Hanua, 20 Ind. 110. 
 
 1G6
 
 PERSONS COMPOSING THE FIRM. § 163. 
 
 others, as OTarrell, James & Co. in a different business, being an 
 enterprise to improve HilTs property. Hill was held not bound to 
 notify the 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 tlie 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 delectns personarum. — 
 
 There are two exceptions to the right of delectus person- 
 arum — one in the case of joint stock companies with trans- 
 ferable shares (§ 72); this is not really an exception because 
 transfer without dissolution is designed and agreed upon' 
 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 j^er son- 
 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- ^ 
 
 ZBeutley v. Bates, 4 Y. & C. 182; rado Coal & Iron Co. 9 Col. 60; * 
 
 Redmayne v. Forster, L. R. 2 Eq. Southmayd v. Southinayd, 4 Mon- 
 
 467; Kahn v. Central Smelting Co. tana, 100, 113; Lamar v. Hale, 79 
 
 103 U. S. 641 ; Skillmau v. Lachman, Va. 147. 
 
 23 Cal. 199; Duryea v. Bart, 28 id. 3jefferys v. Smith, .3 Russ. 158; 
 
 569; Dougherty v. Creary, 30 id. 290; Crawshay v. Maule, 1 Svvanst. 518. 
 
 Taylor v. Castle, 42 id. 367 • Nisbet v. 
 
 167
 
 § 164. NATURE AND FORJ^IATION. 
 
 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. sho-uld 
 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 socius, meus socius Gray, 4G8; 8 Ara. Law Reg. (N. S.) 
 non est. Dig. lib. 17, tit. 2, i? 20. 688; Shearer v. Paine, 12 Allen, 289; 
 
 2 fix' parte Barrow, 2 Rose, 252; McHale v. Oertel, 15 Mo. App. 582; 
 Brown v. De Tastet, Jac. 284; Bray Murray v. Bogart, 14 Johns. 318; 
 V. Fromont, 6 Matkl. 5; Ex parte 7 Am. Dec. 46G; Burnett v. Snyder, 
 Dodgson, Mont. & McAr. 445; Frost 76 N. Y. 344 (aff'g, II Jones & Sp. 
 V. Moulton, 21 Beav. 596; Fairholm 238); s. c. 81 N. Y. 550; 37 Am. Rep. 
 V. Marjoribanks. 3 Ross, L. C. 097 (a 527; (rev. 13 J. & Sp. 577); New laud 
 Scotch case); Mathewson v. Clarke, tJ. Tate, 3 Ired. Eq. 226; Cliaunel v. 
 6 How. 122; Bybee v. Hawkett, 12 Fassitt, 16 Oh. 166; Setzer v. Beale, 
 Fed. Rep. 649; 8 Sawy. 176; Fry v. 19 W. Va. 274; Mair v. Bacon, 5 
 Hawley, 4 Fla. 258; Meyer v. Krohn, Grant's Ch. (Up. Can.) 338. 
 
 114 111. 574, 581: Reynolds v. Hicks, 3 Shearer v. Paine, 12 Allen, 289. 
 19 Ind. 113; Fitch v. Harrington, 13 
 
 168
 
 PERSONS COMPOSING THE FIRM. § 167. 
 
 who is afterwards compelled to pay a judgment against the firm 
 cannot sue the sub-partners for contribution.' Nor 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 ihat 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 firni.^ 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; 5 Newland v. Tate, 3 Ired. Eq. 226. 
 7 Am. Dec. 466; Setzer v. Beale, 19 6Setzer v. Beale, 19 W. Va. 274, 
 W. Va. 274 ; Mair v. Bacon, 5 Grant's 297. 
 
 Ch. (Up. Caru) 338. "^ Sir Charles Raymond's Case, cited 
 
 2 Freeman v. Bloomfield, 43 Mo. 391. in Ex parte Barrow, 2 Rose, 252, 255 ; 
 
 3 Shearer v. Paine, 12 Allen, 289, Brown v. De Tastet. Jacob, 284; 
 supra; Channel ij. Fassitt, 16 Oh. 166; Bray v. Fromont, 6 Madd. 5; Math- 
 Setzer v. Beale, 19 W. Va.274, 291-2. ewson v. Clarke, 6 How. 122; Reilly 
 
 * Burnett v. Snyder, 81 N. Y. 550; v. Reilly, 14 Mo. App. 62. 
 37 Am. Rep. 527 (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
 
 § 1G9. NATURE AND FORMATION. 
 
 Yet it has been lield that the other principal partners could be 
 mafic 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 raaj' 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 prior to dissolution.^ 
 
 § 108. 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 Cox 
 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, 
 a 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. Rep. 527 (rev. 13 Jones 
 
 2 Rosenstiel v. Gray. 112 111. 282. & Sp. 577). and given fully above. See 
 
 3 Mathewson v. Clarke, 6 How. Drake v. Ramey, 3 Rich. L. 37. Con- 
 122. And see Shearer v. Paine, 12 tra, Baring v. Crafts, 9 Mtt. 380; 
 Allen, 289, cited fully supra. Fitch v. Harrington, 13 Gray, 46S (8 
 
 *Fairholmv. Marjoribanks, 3 Ross, Am. Law Reg. (N. S. ) r88^: and 
 
 Lead. Cas. 697; Bybee v. Hawkett, 12 dictum in Newland v. T; te, 3 Ired. 
 
 Fed. Rep. 619; 8 Sawy. 170; Mp}'er Eq. 226. But tliese cases are not 
 
 V. Krohn, 114 111. 574, 581-2; Re}^- founded on principle, 
 nolds V. Hicks, 19 Ind. 113; Burnett 6 Coleman u. Eyre, 43 N. Y. 38, 
 
 V. Snyder, 76 N. Y. 344 (aff. 11 where tlie statute of frauds was 
 
 Jones & Sp. 238); S. C. 81 N. Y. urged ajjainst an oral contract to 
 
 " 170
 
 PERSONS COMPOSING THE FIRM. § 1G9. 
 
 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 tte original 
 firm, the amount of profits of the latter being a mere fact 
 to be proved,- 
 
 In Richardsori v. Dickinson, 6 Foster (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 Jinal distribution of 
 the company's 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 S2,000. 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 C. 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 tlie inter- 598 ; both parties liere testified that 
 est of one person in the shipment, there was no limit, 
 but it was held to be a sale. 2 Reilly v. Reilly, 14 Mo, App, 62. 
 
 iFi-ost V. Moulton, 21 Beav. 596, 
 
 171
 
 CHAPTER VIII. 
 
 THE FIRM AS AN ENTITY. 
 
 § 170. Opposing conceptions of a firm.— 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 tlie 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 
 not a thing distinct from the members composing it, nor 
 was it an entity at all, but a mere expression of the relation 
 
 iln Bank of Toronto v. Nixon, 4 legallj^ makes a dissolution and new 
 Ont. App. ;54G, the court construed a firin and not an alteration, regard- 
 statute referring to an alteration or ing tlie legislature as more probably 
 change of partnership to apply to familiar witli 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 lions 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 repudiate 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 has been carried to such raon 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, 317. 
 
 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 liabiUties, 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 requh-ed 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 person which has ages were allowed on protested bills 
 peculiar rights and attributes, and drawn on persons " without tlie 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. r. 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 
 
 3 Chaffee v. Jones, 19 Pick. 260 : Hos- drawn on " Taylor & Cassilly, New 
 mer y. Burke, 26 Iowa, 353; Warner Orleans," and accepted by C. in Con- 
 V. Smith, 1 De G. J. & S. 337, of divis- necticut for the New Orleans house, 
 
 174
 
 THE FIRM AS AN ENTITY. § 173. 
 
 § 4.73. And judicial declarations that a firm is a distinct entity 
 are now frequently to be met with. 
 
 Jessel, M. R., in Pooley r. 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 partlj'- understood in the courts of equity 
 before it was part of the whole law of the land, as it now «s." 
 
 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 ua- 
 frequent.' 
 
 Other examples of an unconscious instinct in courts towards 
 
 this was held not to be drawn on the ^ Forsyth v. 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 declai'ed upon as 
 twoprecedingonesmay, however, be such. Bracken u. EUsworth, 64 Ga. 
 explained as merely carrying out the 243, 251 ; Hemy v. Anderson, 77 Ind, 
 contract of the parties. See, also, 361,363; Fitzgerald u. Grimmell, 64 
 City Bank of New Orleans v. Stagg, Iowa, 261 ; Cross v. National Bank, 
 1 Handy, 382, illustrating the doc- 17 Kan. 336, 340; Robertson v. Cor- 
 trine that the domicile of the drawee sett, 39 Mich. 777; Roop v. Herron, 
 determines the right to damages on 15 Neb. 73; Curtis v. HoUingshead, 
 protest and holding a billon a foreign 14 N. J. L. 402, 410; Faulkner v. 
 house payable there, and accepted Whitaker, 15 id. 438; Meily y. Wood, 
 by a partner residing here. So 71 Pa. St. 488, 492; 10 Am. Rep. 719; 
 Chenowith t\ Chamberlin, 6B. Mon. and a firm is spoken of as having a 
 60 (43 Am. Dec. 145), of a resident domicile in Cameron v. Canieo, 9 
 drawing on his firm domiciled out Bankr. Reg. 527; Pecks v. Barnum, 
 of the state. ' 24 Vt. 75, 79. 
 
 175
 
 § 1 74. NATURE AND FORMATION. 
 
 treating a, firm as an entity, as far as possible, may perhaps IJG 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 meml)er 
 in common with it, and have gone 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 firm 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 roach 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 boar 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. taicen 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 AVagon Co. J4 Neb. 106, 108; Whit- 
 6uch statutes in Newlon v. Heaton, man v. Keith, 18 Oh. St. 134, 144. 
 43 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 alter 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 in 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.« 
 
 iDyasr. Dinkgrave, 15 Ln. Ann. 503. 8 Cook v. Port Fulton, 106 Ind. 170; 
 
 2Abat V. Penny, 19 La. Ann. 289. Peabody v. County Comm'ra, 10 
 
 3 Fowler v. Reynal, 2 DeG. & Sm. Gray, 97; In 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. & EI. 833. L. 143, it was said that a firm has uo 
 
 5 Haskins v. D'Este, 183 Mass. 356. domicile apart from the joint domi- 
 
 6 Griffith V. Carter, 8 Kan. 565 (now cile of the jjartners, 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. 143. where the business is carried on. 
 
 '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. 1 — 13 177
 
 § 17G. NATURE AND FORMATION. 
 
 If all the partners live in the same town the assessment may be 
 either against the partners individually or against tlie 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 a tax 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.* 
 
 § 176. 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 Avas 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 reduction must show 
 the firm's business and property was the amount of debts owing and his 
 in Jersey City, and one partner projDortion 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 u. Walworth, 133 Mass. 
 was held proper to tax the three 499. 
 
 non-residents where the property was ' Evans v. Bradford, 35 Ind. 527. 
 
 and the other partner at Elizabeth. < Wlieat v. Hamilton, 53 Ind. 256. 
 
 A provision that a firm shall pay but SThibodaux v. Keller, 29 La. Ann. 
 
 one tax was said to be right in prin- 50S, 509; Stockwell v. Brewer, 59 
 
 ciple, and that it would be unjust Me. 286; Hubbard v. Wiusor, 15 
 
 and unequal to tax each partner Mich. 146; Putman v. Fife Lake 
 
 separately in addition, Savannah v. Township, 45 id. 125; McCoy v. 
 
 Ilines, 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, 43 N. J. L. 142; Ward, 13 Oh. St. 293; In re Hatt, 7 
 
 State V. Parker, 34 id. 71. And see Up. Can. L. J. 103. 
 
 Swallow V. Thomas, 15 Kan. 66. In 6 Hubbard v. Winsov, 15 Mich. 146. 
 
 either case the whole property must 7 Swallow v. Thomas, 15 Kan. 60; 
 
 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 office, 
 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 justification of this policy is in the fact that the 
 
 1 Oliver v. Liverpool & Loudou L. Contra, Von Phul v. New Orleans, 
 & F. Ins. Co. 100 Mass. 531. . 24 La. Ann. 261. 
 
 2 Hoadley u County Comm'rs, 105 SBlodgett v. Muskegon (Mich. 
 Mass. 519. In Gleason v. McKay, 1886), 27 N. W. Rep. 686. 
 
 134 Mass. 419, a tax on partnerships, ^Putnaan 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. 502. 
 
 assignable shares, was ruled to be 8 Torrent v. Yager, 52 Mich. 506. 
 
 unconstitutional. For as a tax on In Barker v. Watertown, 137 Mass. 
 
 property it is not proportional; but 227, 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 
 
 * Lyle V. Jacques, 101 111. 644. orders received at B., one of the part- 
 
 * Oliver v. Lynn, 130 Mass. 143. ners going each 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 othei 
 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 tbe 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 of 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 Tvvp. 45 Mich. 
 
 to customers. It was held that the 125 ; McCoy v. Anderson, 47 id. 502. 
 
 firm had a "place of business" at < United States v. Glab, 99 U. S. 
 
 W., where goods were "employed" 225; 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 5 Webber v. Williams, 36 Me. 512. 
 
 that a distinct firm may do work And in U. S. v. Glab, 99 U. S. 225, 
 
 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 liave continued 
 
 Cush. 298. So if sent there for sale, had the change been by the addition 
 
 Fairbanks v. Kittridge, 24 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. 130, 
 
 Boston, 14 Allen, 3G6. ^Briggs v. Leitelt, 41 Mich. 79; 
 
 1 McCoy V. Anderson, 47 Mich. 502. Stewart v. Piatt, 101 U. S. 731 ; Rich 
 
 2 Lee V. Templeton, 6 Gray, 579. v. Roberts, 48 Me. 548; 50 id. 395. 
 » Danville Co. v. Parks, 88 111. 170; 7 Morrill r. Sanford, 49 Me. 566. 
 
 Hittinger v. Westford, 135 Mass. 258; 
 
 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 of 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. 
 •ion for the mortgagee, the property 2 g 407. 
 
 181
 
 CHAPTER IX. 
 
 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 
 personaruin, 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 
 80 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 Farquliar v. Haddeu, L. R. 7 Cli. id. 264. Many other cases to this ef- 
 
 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, 03 id. 540; Ferry 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 v. McFar- the partners lived in another state 
 
 lin, 115 Mass. 98; Schalck v. Har- and the place of business was there, 
 
 nion, 6 Minn. 265, 269; Bowman v. wliether the interest of one partner 
 
 O'Reilly, 31 Miss. 261 ; Gaines v. could be said to exist in this state so 
 
 Coney, 51 id, 323; Buffum v, Seaver, as to form the subject of an attach- 
 
 16 N. H. 160; Mabbett v. White, 12 nient here. Dow v. Say ward, 14 N. 
 
 N. Y. 442, 455 ; Staata v. Bristow, 73 H. 9, 13. 
 
 183
 
 INTEREST OR SHARE OF EACH. 
 
 §1S1. 
 
 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 ; Robinson 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. 137 ; 1 Hall 
 & Tw. 4G1 ; 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. 752; Stein v. 
 Robertson, 30 id. 286; Brewer v. 
 Browne, 68 id. 210; Griggs v. Clark, 
 23 Cal. 427 ; Roach v. Perry, 16 111. 
 87; Farr v. Johnson, 25 id. 522; 
 Remick v. Emig, 42 id. 342, 348; 
 Taft V. Schwanib. 80 id. 289; Flagg 
 V. Stowe, 85 id. 164; Ligare v. Pea- 
 cock, 109 id. 94; Moore v. Bare, 11 
 Iowa, 198; Honore v. Colniesnil, 1 
 J. J. Mar. 506; Pirtle v. Penn, 3 
 Dana, 247 (28 Am. Dec. 70); Conwell 
 V. Sandidge, 5 id. 210; Lee v. Lash- 
 brooke, 8 id. 214; Wolfe v. Gilmer, 7 
 La. Ann. 583; Northrup v. McGill, 
 27 Mich. 234; Randle v. Richardson, 
 53 Miss. 176; Henry v. Bassett, 75 
 
 Mo. 89; Ratzer v. Ratzer, 28 N. J, 
 Eq. 136; Buckingham v, Ludlum, 
 29 id. 345 ; Gould -y. Gould, 6 Wend. 
 263; Ryder v. Gilbert, 16 Hun, 103; 
 Taylor v. Taylor, 2 Murph. (N. Ca.) 
 70; Jones v. Jones, 1 Ired. Eq. 332; 
 Worthy v. Brower, 93 N. Ca. 344; 
 Knott V. Knott, 6 Oregon, 142, 150; 
 Christman v. Baurichter, 10 Phila. 
 115; Whitis v. Polk, 36 Tex. 602. 
 
 According to the Scotch law it is 
 not necessarily presumed that part- 
 ners share equally, but is a question 
 for the jury, considering all the cir- 
 cumstances, including good will, 
 skill, capita], labor, etc., what should 
 be the share of profit and loss. 
 Thompson v. Williamson, 7 Bligh. 
 N. R. 432. And so, also, by two 
 earlier English cases, Peacock v. 
 Peacock, 2 Camp, 45; Sharpe v. 
 Cummings, 2 Dow & L. 504. And 
 was doubted in Towner v. Lane, 9 
 Leigh (Va.), 262. 
 
 2 See, for example, Flagg v. Stowe, 
 85 111. 164; Whitcomb v. Converse, 
 
 119 Mass, 38, 42; Moley v. Brine, 
 
 120 id. 324. 
 
 3 lie Albion L. Ass. See. 16 Ch. D. 83. 
 
 183
 
 § 182. 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 j^rofit 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 i?npairment 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 §211. sPirtle v. Penn, 3 Dana, 247 (88 
 
 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. 289. 
 Mar. 506; Conwell v. Sandidge, 5 » Pence u McPherson, 30 Ind. 66, 
 Dana, 210; Turnipseed v. Goodwin, 6 Storm v. Cumberland, 18 Grau^ ^ 
 9 Ala'. 372. Ch. (Up. Can.) 245. 
 
 184
 
 INTEREST OR SHARE OF EACH. § 183. 
 
 vided in the proportion that the interests of each bear 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 hnd desired and offered io put in an equal amount, 
 but 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 S 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 $100 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 plaintiff's 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 Frederick r. Cooper, 3 Iowa, 171. |1,120, B. is entitled to one-third and 
 'Pond V. Clark, 24 Conn. 870. 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-thirds 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, 90 111. 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. Yet 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 Sijiis in rem.^ 
 
 1 § 158. rights nor transfer to him the newly 
 
 2 Thompson v. Spittle, 103 Mass. acquired property. In Mosely v. 
 207, and cases cited in this chapter Garrett, 1 J. J. Mar. (Ky.) 213, it 
 generally. was held that if one partner mort- 
 
 3 The assignee was distinctly held gages his interest to secure inrlorsers, 
 not to be a tenant in common in and procure fuudj 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 
 Thompson v. Spittle, 103 Mass. 207, partnersliip debts. In Jones v. 
 210, it was said that a mortgage by Neale, 2 Patt. & H. (Va.) 339, it was 
 one partner of Ids interest in a firm held that a conveyance by one part- 
 and its property could not take ner to secure a partnership creditor 
 effect upon subsequently acquired would pass a good title, both in law 
 property, and that the purcliase of and equity, to his individual moietj-. 
 Other goods, and mingling them, superior to the claims of other part- 
 could neither divest the mortgagee's nership creditors; but not so of a 
 
 isa
 
 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 liis copartners 
 or the priority of tlie 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 all 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 own name passes no title in the property.* So 
 
 conveyance to secure a separate 
 creditor; but see § 548. 
 
 1 Smith V. Parkes, 16 Beav. 115; 
 Fox V. Hanbury, Cowper, 445 ; West 
 V. Skip, 1 Ves. Sr. 239; Young v. 
 Keighly, 15 Ves. 557; Bentley v. 
 Bates, 4 Younge & C. 183, 190; 
 Warren v. Taylor, 60 Ala. 218; Chase 
 V. Steel, 9 Cal. 64 ; Burpee v. Bunn, 
 22 Cal. 194 ; Jones v. Parsons, 25 id. 
 100 ; Sheehy v. Graves, 58 id, 449 ; Fil- 
 ley V. Phelps, 18 Conn. 294; Beecher 
 V. Stevens, 43 Conn. 587; Sutlive 
 V. Jones, 61 Ga. 676; Shaw v. McDon- 
 ald, 21 Ga. 395; Smith u. Andrews. 
 49 111. 28; Kistner v. Sindlinger, 
 33 Ind. 114; Smith u. Evans, 37 Ind. 
 536; Conant v. Frary, 49 id. 530; Henry 
 V. Anderson, 77 id. 381 ; Deeter v. 
 Sellers, 102 id. 458; Fargo -u. Wells, 
 45 Iowa, 491 {dictum); Hodges v. 
 Holman, 1 Dana, 50; Whitmore v. 
 Shiverick, 3 Nev. 2S8; Lovejoy v. 
 Bowers, 11 N. H. 404; Receivers of 
 Mechanics' Bank v. Godwin, 5 N. J. 
 Eq. 334; Matlacku James, 13 id. 126; 
 Hiscock V. Phelps, 49 N. Y. 97, 103-4; 
 Tarbell v. West, 86 id. 280; Tarbel 
 V. Bradley, 7 Abb. N. Cas. 273; 
 Williams v. Lawrence, 53 Barb. 320, 
 324; Bank of N. Ca. v. Fowle, 4 
 Jones' Eq. 8 ; Ross v. Henderson, 77 
 
 N. Ca. 470 ; Burbank v. Wiley, 79 id. 
 501 ; Bank v. Sawyer, 38 Oh. St. 339 ; 
 Hunt V. Smith, 3 Rich. Eq. 465; 
 White V. Dougherty, Mart. & Yer. 
 (Tenn.) 309; Williams v. Love, 2 
 Head, 80; Stebbins v. Willard, 53 
 Vt. 665; Jones v. Neale, 2 Patt. & H. 
 (Va.)339. 
 
 2 Jones V. Parsons, 25 Cal. 100; 
 Beecher v. Stevens, 43 Conn. 587; 
 Whitmore v. Shiverick, 3 Nev, 288; 
 Tarbell v. West, 86 N. Y. 280 ; Tarbel 
 V. Bradley, 7 Abb. N. Cas. 273; Miller 
 V. Proctor, 20 Oh. St. 442 ; Bank u 
 Sawyer, 38 Oh. St. 339. 
 
 3 Bank v. Railroad Co, 11 Wall. 624; 
 Burpee I'. Bunn, 22 Cal. 194; Marks 
 V. Say ward, 50 id. 57 {dictum) ; Yale 
 V. Yale, 13 Conn. 185; 33 Am, Dec. 
 393 ; Matlack v. James, 13 N, J, Eq. 
 126; Rosenstielv. Gray, 112 III. 282; 
 Holland v. Fuller, 13 Ind. 195; Donald- 
 son V. Bank of Cape Fear, 1 Dev, (N, 
 Ca.)Eq. 103; Rodriguez u. Heflfernan, 
 5 Johns. Ch. 417; Ross v. Hender- 
 son, 77 N, Ca. 170; Boyce v. Coster, 
 4 Strob, (S, Ca,) lEq, 25; Williams v. 
 Love, 2 Head, 80. 
 
 4 Clark V. Houghton, 12 Gray, 38; 
 Deeter ?;. Sellers. 102 Ind. 458; Smith 
 V. Andrews, 49 111. 28; Yale v. Yale, 
 13 Conn, 185; 33 Am. Dec. 393. 
 
 187
 
 § 185. NATURE AND FORMATION. 
 
 of the lien upon partnership real estate of a judgment 
 against one partner.' 
 
 If the conveyance by a partner of liis interest be a sale of real es- 
 tate, of which the legal title is in the partners as tenants in com- 
 nLon, 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 propertj^ 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 partnership 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 n\em- 
 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 McK. 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 sul)se(iueiit 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 Gal. 355. subsequently collected and was then 
 See Marks v. Saywaid, 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. § l8b. 
 
 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, the 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 subsequent 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 
 
 ICavander v. Bulteel, L. R. 9 Ch. N. J. Eq. 334, 338;Hiscock v. Phelps, 
 App. 79-, Kelly v, Hutton, 3 id. 690; 49N. Y. 97, 103-4; Bank of N. Ca. v. 
 Whetham v. Davey, 30 Ch. D. 574; Fowle, 4 Jones (N. Ca.), Eq. 8; Bur- 
 Lindsay u Gibbs, 3 DeG. & J. 690; bank v. Wiley, 79 N. Ca. 501; Bank 
 Guion V. Trask, 1 id. 379; Beecher v. Sawyer, 38 Oli. St. 339; Page v. 
 V. Stevens, 43 Conn. 587 {dichim); Tliomas, 43 id. 38, 44-5. 
 Conantu. Frary, 49 Ind. 530; Church- 2 whetham v. Davey, 30 Ch. D. 
 ill V. Proctor, 31 Minn. 129; Love- 574; Cavander v. Bulteel, L. R. 9 Ch. 
 joy V. Bowers, 11 N. H. 404; Receiv- App. 78; Kelly v. Hutton, 3 id. 703; 
 ers of Mechanics' Bank v. Godwin, 5 Redmayne v.Forster, L. R. 2 Eq. 407. 
 
 189
 
 § 186. NATURE AND FOR^IATION. 
 
 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 lienor right under the pre- 
 vious individual act of mortgaging or assigning a separate 
 share.^ 
 
 Thus, where Y. & H. were deeply involved, and Y., 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.^ 
 
 1 Cavander v. Bulteel, L. R. 9 Ch. of Georgia, 24 Ala. 37 ; Evans v. 
 
 App. 79; Jones v. Parsons, 25 Cul. Hawley, 35 Iowa, 83; Kramers v. 
 
 100; Yale v. Yale, 13 Conn. 185; S3 Arthur, 7 Barr, 163; Lancaster Bank 
 
 Am. Dec. 893; Shaw v. McDonald, 21 v. My ley, 13 Pa. St. 544: Meily v. 
 
 Ga. 395 ; Tarbell v. West, 86 N. Y. Wood, 71 Pa. St. 4S8 (rev. 8 Phila. 
 
 280; Tarbelv. Bradley, 7 Abb. N. Cas. 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 
 
 100. But see Tread well v. Williams, v. Nutter, 19 Me. 16. 
 9 Bosw. 649. ^ Evans v. Hawley, supra. 
 
 '^Ya\e V. Yale, supra. cSinith v. Andrews, 49 111. 28; 
 
 »Shaw V. McDonald, 21 Ga. 395. Robinson v. Tevis, 38 Cal. 611 ; Com- 
 
 <Lakeu. Craddock, 3 P. Wras. 158; mercial Bank v. Wilkins, 9 Me. 28; 
 
 1 Eq. Cas. Abr. 290; Coster v. Bank Hill v. Wiggin, 31 N. H. 293; Staats 
 
 190
 
 INTEREST OR SHARE OF EACH. § 187. 
 
 Tlias, 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 mortafasfe; 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, 
 und a buyer from the firm, either during the partnership or in 
 winding up, gets title discharged of it, whether he had notice or 
 act. 
 
 § 187. Assignee's rights. — But the assignee of a share, of 
 course, incurs no personal liability for a deficit in case the 
 3hare will not pay debts and balances, and no personal judg- 
 ment can be awarded against him, unless he has agreed to 
 assume that burden; 2 and so even if he is taken 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 sell shares being a main inducement to take them.* 
 
 V. Bristow, 73 N. Y. 264; Kistner v. Phillips r. Blatchford, Vdl Mass. 510; 
 
 Sindlinger, 33 Ind. 114; Whitmorei;. Baird's Case, L. R. 5 Ch. App. 725. 
 
 Shiverick, 3 Nev. 288. But see Lake v. Munford, 4 Sm. & 
 
 1 Smith V. Andrews, 49 111. 28. Mar. 312. 
 
 2 Hunt V. Smith, 3 Rich. Eq. 465. &Pinkett v. Wright, 3 Hare, 120; 
 
 3 See § 507. S. C. as Murray v. Pinkett, 12 CI. & 
 
 4 Mayhew's Case, 5 DeG. M. & G. Fin. 764. See Spence v. Whitaker, 3 
 837; Savage v. Putnam, 33 N. Y. 501 ; Porter (Ala.), 297. 
 
 191
 
 § 188. NATURE AND FORMATION. 
 
 Incident to the right of the assignee or mortgagee to share 
 in the snrplus 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. Morti^age 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 p:lrt^ers buj's out another, the interest pur- 
 chased by liim is subject to the claims of the third partner on such 
 share; and if the third partner pa}^ 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 ^§ 927, 928. For as the lien no knowledge ; but here he at least 
 of tlie otlier partners is not nfTected had notice that there was a partner- 
 by the mortgage of an interest, they ship. Settembre v. Putnam, 30 CaL 
 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 iiartnership, if tosecure 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 partnersliip liabilities. Hiscocku. 
 202; Reeves v. Ayers, 38 111. 4r8; His- Phelps, 49 N. Y. 97, 103-4; Lewis v, 
 cock V. Phelps, 49 N. Y. 97 (S. C. be- Anderson, 20 Oh. St. 281, 285. But 
 low. 2Lans. 106) ; Lewis u. Anderson, see Reeves v. Ayers, 38 III. 418. 
 20 Oil. St. 281, 28.") ; Miller v. Proctor, 3 Irwin v. Bidwell, 72 Pa. St. 244, 
 id. 442, 448; Mason v. Parker, 16 250. The mortgage itself is not part- 
 Grant's Ch. (Up. Can.) 230. As to nership assets, Niagara Co. Nat. 
 what constitutes notice of the part- Bank v. Lord, 33 Hun, 557; but has 
 nership, see § 295. Where the title been held good in tlie hands of a &o?ia 
 to a mine is in two partners, a pur- ^ide 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. 527. 
 partners, of whose existence he had <Kendrick v. Tarbell, 27 Vt. 512. 
 
 192
 
 INTEREST OR SHARE OF EACH. g l!S'.). 
 
 the firm, and the retiring partner takes a mortgage from the vendee 
 of the share sokl 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 propert}' 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 pa}'' 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 share, 
 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 assets 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 Con well V. Sandid^e, 8 Dana, 273 ; 2 Low i\ Allen, 41 Me. 248. 
 Savage v. Carter, 9 id. 408, where the ' Seaman t\ Huffaker, 21 Kan. 
 lien was reserved on specific prop- 254. 
 erty. 
 
 Vol. I — 13 193
 
 g 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 bona 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 Menagh 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- 
 fifths of the factory, property, accounts, etc., to secure his individ- 
 ual debt. Another partner gave a like mortgage for a like 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 diff'erent 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 oidy tlieir interest in 
 the surplus and that the property was still subject to levy by joint 
 creditors. Kapallo, 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 debts of 
 $150,000. Here the interest of each partner is $50,000. Now if 
 
 194
 
 INTEREST OR SHARE OF EACH. § 189. 
 
 the members are individually indebted, and one sells his interest 
 for $50,000 and the share of another is sold on execution at $50,000, 
 its full value, the equity of the joint creditors can be 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- 
 terests 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. Reg. 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 
 pav 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- 
 p-ao-es, 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, 
 
 1 The earliest case upon the subject of the same creditor on partnership 
 had been that of Brinkerhoff v. Mar- debts, and the partnership property 
 vin, 5 Jolms. Ch. 320, in which each was held to be bound, as there was 
 partner had successively confessed a one consolidated judgment for the 
 judgment against himself in favor whole against both partners. 
 
 195
 
 § 190. NATURE AND FOiniATION. 
 
 In Maxwell v. Wheeling, 9 W. Va. 206, M., of M. & McK., a firn;, 
 conveyed all his interest to S. to secure his individual debt to ii 
 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 beinsi 
 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 
 whose share has not been sold has the right to insist upon 
 tlie 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, 
 itor has more than a mere derivative on discharge in insolvency, the part- 
 equity, but lias an inherent priority, nersiiip creditors can still sue and at- 
 not dependent upon the equity of tach. Glenn v. Arnold, 56 Cal. 631 j 
 the partners; and in California 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 lessen 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 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 Couehman 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 tlie interest of one partner is sold 
 
 faff'g 3 Phila. 2s7). 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. 
 
 'And yet in Pennsylvania the Jones' Appeal, 70 Pa. St. 169. 
 
 197 
 
 usual doctrine is recognized that if
 
 § 100. NATURE AND FORMATION. 
 
 became a Hen from sucli time; before actual levy tbe partners 
 conveyed all the assets to a trustee for the 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.* 
 
 »S.P.Saunder8V.ReiU7, 105N.Y. 12. each partner seems to have made 
 'In Norrisw. Vernon, 8 Rich. L. 13, separate assignments of his share. 
 
 198
 
 CHAPTER 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 necessarily 
 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 all 
 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 ^?'mare — 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- sHaskins v. D"Este, 133 Mass. 356; 
 
 ring to the body, it is synonymous Ferris v. Thaw, 5 Mo. App. 279, 28ii; 
 
 with partnership; thus, wherea rec- Baring v. Crafts, 9 Met. 380, 392. 
 
 ord finds a mortgage was to secure * See § 453. 
 
 the " firm " it does not mean as ten- 5 Fulton v. Maccracken, 18 Md. 
 
 anta in common ; hence the surviving 538, 544. 
 
 199
 
 S 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 ludiano, 2 id. 268; Ferguson v. ner v. Whitlock, 88 III. 513; Getchell 
 King, 5 La. Ann. G43; Whitlock u v. Foster, 100 Mass, 42, 47; Haskins 
 McKechnie, 1 Bosw. 427; Armstrong v. D'Este, 133 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; 
 dKtum). Lessing v. Hulzbacher, 35 Mo. 445. 
 
 2 Whitlock V. McKechnie, supra; Drake v. Elwyn, 1 Gaines, 184 (not 
 Ferguson v. King, aupra; Charman overruled on this point in s. C. 1 N. 
 V. Henshaw, 15 Gray, 293. And Y. 242.) 
 
 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. & Mech, Bank v. Win- 
 such firm name in order to indorse ship, 5 Pick. 11; Winship v. Bank of 
 the note over. Blodgett v. Jackson, U. S. 5 Peters, 529, 
 40 N. H. 21. For the effect upon a ^ See § 443; Yorkshire Banking Co. 
 priority of business creditors over v. Beatson, L. R. 4 C. P. Div. 204; 
 separate creditors wliere a person Winship u. Bank of U. S. 5 Pet. 529; 
 carries on business by himself, but Strauss v. Waldo, 25 Ga. 641; Thei- 
 in a firm name, see § 106. len v. Hann, 27 Kan. 778. In Bank 
 »Le Roy U.Johnson, 2 Pet. 186, 198; of Rochester v, Monteath, 1 Den 
 
 200
 
 THE FIRM NAME. § 191. 
 
 § 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:. Sulbstituting 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 v. Stephens, 1 Den. 471; Folk w. 
 
 statute that if a person transact Wilson, 21 Md. 538. 
 
 business as a trader in partnership *Le Roy v. Johuson, 2 Pet. 186, 
 
 ■without the words & Co., or by a 198. 
 
 like designation fail to disclose, part- < Michael u. Workman, 5 W. Va. 
 
 nership property shall be treated as 391, 393. 
 
 his; and under this statute it was ^ Crawford u. Collins, 45 Barb. 269 ; 
 
 held that cotton bouglit by a person 30 How, Pr. 398 ; Messner v. Lewis, 
 
 in his own name was liable to exe- 20 Tex. 221, where the partners sued 
 
 cution on a judgment rendered be- in their individual names, joiuiug 
 
 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, 264, 6 §453; Mick v. Howard, 1 Ind. 
 
 1 Gill 17. Ferris, 83 Mo, 156; Shine 250; Dudley v. Littlefield, 21 Me. 
 
 V. Central Sav, Bk. 70 id, 524; Mel- 418, And see Cooper v. Bailey, 53 id. 
 
 linger v. Parsons, 51 Iowa, 58 ; Bil- 230, 
 lingsley v. Dawson, 27 id. 210, 
 
 201
 
 § 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 hidorsement 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 title, 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. Olio firm witb 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 maybe 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, 6S Pa. St. Brainard, 35 id. 476; Wartelle v. 
 
 200. But contra as to the proposi- Hudson, 8 La. Ann. 486. 
 
 tion that ihe indorsement of one in- ^McCauley v. Gordon, 64 Ga. 221; 
 
 dividual name will convey title to a 37 Am. Rep. 68. 
 
 note payable to the firm, Mclntire < Finch w. De Forest, 16 Conn. 445. 
 
 V. McLaurin, 2 Humph. 71; 36 Am. 5 Michael v. Workman, 5 W. Va. 
 
 Dec. 300 ; Moore v. Ayres, 5 Sm. & 391 ; Moffat v. McKissick, 8 Baxter, 
 
 Mar. 310; Estabrook v. Smith, 6 517. 
 
 Gray, 570, where one of the payee 6 Hunt v. Semonin, 79 Ky. 270. 
 
 firm in his individual name indorsed 7 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 tliey were known as "Farm- 
 Ala. 770; Ala. Coal Mining Co. v. ers «& Mechanics," and as "Farmers 
 
 203
 
 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 Avith 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.* 
 
 «fe Mechanics' Co.," and as "Fai-mers of Rochester v. Monteath, 1 Den. 402; 
 & Mechanics' Store." Where Taylor 43 Am. Dec. 681; In re Williams, 3 
 & Cassily had a business house in Woods, C. C. 493 ; 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. 432, 
 lived, dealing with each other as in- 585-9 ; Anderson v. Norton. 15 Lea, 
 dependent firms, a bill drawn in Cin- 14; Messner ??. Lewis, 20 Tex. 221; 
 cinnati on "Taylor & Cassily, New Sneed v. Kelly, 3 Dana, 538. 
 Orleans," is subject to damages on 2 Campbell v. 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 ; In re Will- 
 Valley Bank, 6 Oh. St. 168. iams, 3 Woods, C. C. 493. See 
 iJn Matter of Vetterlein, 5 Ben. Buckner v. Calcote, 28 Miss. 432, 
 C. C. 311; Sparhawk v. Drexel, 12 585-9. 
 
 Bankr. Reg. 450; Lathrop u. Suell, 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, 613. 
 
 203
 
 § 1{)6. 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 Natl 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. & G., 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 thai 
 the loan was upon the credit of the original firm, the plaint- 
 iff cannot elect which firm to sue, and cannot bold the new partner 
 liable. It was said (p. 45S) that bad 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 was necessary 
 
 1 Jones V. Parker, 20 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, liovvever. for the indorse- 
 
 80, that where several partnerships ment of the debt of tlie grocer house 
 
 had the same name, a partner in one was notice to the plaiutitf 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 which 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- 
 
 7 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 bill 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. Dakiii, 24 Wend. 411; and 
 
 a debt of the grocer firm, yet, be- Re Munn, 3 Biss. 442. 
 cause the indorsement represented 
 
 204
 
 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 si^nin^. — 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 r. Green, 13 Bush, 613. 291; Morse v. Hall, 109 id. 409; 
 
 2 Miner V. Downer, 19 Vt. 14, See Sohier u. Johnson, 111 id. 238. 
 
 § 107. The consequences of an inten- sju France, Codede Commerce, 21, 
 
 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. Howlett, 4 Deu. 559; in the firm. 
 
 Caldwell v. Sithens, 5 Blackf. 99. 9 Gay v. Seibold, 97 N. Y. 472, 476 ; 
 
 * Pearson v. Post, 2 Dakota, 220. 49 Am. Rep. 533 ; Lauferty v. 
 
 5 Doty u. Bates, 11 Johns. 544. Wheeler, 11 Daly, 194. 
 
 6 Walker v. Wait, 50 Vt. 668. lo Zimmerman v. Erhard, 83 N. Y. 
 'This statute will be found con- 74. 
 
 siiued in Rogers v. Taintor. 97 Mass. 
 
 205
 
 § 198. NATURE AND FORMATION. 
 
 property is sliipped 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 obtiining 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 
 recover 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 implied 
 powers. 
 
 1 Wood V. Erie R. R. Co. 72 N. Y. 6 Lane v. Arnold, 13 Abb. New 
 196; 28 Am. Rep. 125 (aff'g, 9 Hun, Gas. 73. 
 
 (348). 7 Stoddart v. Key, 62 How. Pr. 137 ; 
 
 2 Pollard V. Brady, 48 N. Y. Supe- Succession of Bofenschen, 29 La. 
 riorCt. 476. Ann. 711. 
 
 3 Sparrow v. Kohn, 109 Pa. St. 359. 8 Hazard v. Caswell, 93 N. Y. 259 
 ♦Thompson v. Gray, 11 Daly, 183. (rev. 14 J. & Sp. 559). For the right 
 5 Gay V. Seihold, 97 N. Y. 472; 49 to use the name after death or other 
 
 Am. Rep. 533 ; Kent v. Mojonier, 36 dissolution, see Good Will, 
 La. Ann. 259. 
 
 206
 
 THE FIRM NAME. § 1{>». 
 
 § 199. Cannot bind 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 ou 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 U. S. 3 Cranch, of covenant for a partner to sign A. 
 
 C. C. 95; Kirby v. Hewitt, 2G 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 Kirku. Blurton, 9 M. & W. 
 
 Ex. U? ; Gordon v. Bankstead, 37 111. 284 ; 12 L. J. Ex. 117, where the firm 
 
 147; Tilford u. 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 v. Wilson, 24 Bank v. Wilson, 24 Up. Can. C. P. 
 
 Up. Can. C. P. 362. And see McLin- 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 
 
 2See§441. In Marshall r. Colraan, months later, was held not to bintl 
 
 2 Jac. & W. 266, 267-8, Lord Eldon the firm ; the partner had signed 
 
 said that if the agreed firm name for bis 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 §g 436-454. GaflF, 44 111. 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. 
 
 s Usher v. Dauncey, 4 Camp. 97. ^^453^ 
 
 < Wiilet V. Chambers, Cowp. 814; ^Qahvay v. Matthew, 1 Camp. 
 
 Brown v. Lawrence, 5 Conn. 897, 40a ; Norton u. Seymour, 3 C. B, 792; 
 
 where one partner receipted in his Richardson r. Huggius, 23 N. H. 106; 
 
 own name for notes to be collected Patch v. WJieatland, 8 Allen, 102, a 
 
 and the proceeds credited on the mortgage of a ship; Holden v, 
 
 bailor's debt to the firm; Tomlin v. Bloxum, 35 Mins. 381, a note for a 
 
 Lawrence, 3 Moo. & P. 555, a draft by pui'chase 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 
 
 Ihe draft has been dishonored by the gone to the firm's use. McGregor v. 
 
 debtor; Bisel v, 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, Cleveland had been ratified 
 
 o 
 
 08
 
 THE FIRM NAJME. § 201. 
 
 In Norton v. Seymour, 3 C. B. 792/ Tliomas 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 Seymour & Ayres with the addition of their respective Christian 
 names;" and Manle, 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 lias 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 the 
 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 Be Warren, 3 Wai'e, 322 ; Ee Thomas, 
 
 was signed "Frederick Cleveland 17 Bank r. Reg. 54; 8 Biss. 139. 
 
 and Rufus Cleveland," and while it is. c. 16 L. J. C. P. 100; 11 Jur. 
 
 does not appear that the firm re- 812 (1847). 
 
 ceived the consideration, it also does 2 Austin v. Williams, 2 Oh. 61; 
 
 not appear that they had adopted Aspinwall v. Williams, 1 id. 84; 
 
 any firm name. Kitner v. Whitlock, Kinsman v. Castleman, 1 Mon. (Ky.) 
 
 88 111. 513, on notes; Maiden v. Web- 210; Drake v. Elwyn, 1 Caines, 184; 
 
 8ter, 30 Ind. 317; Nelson v. Neely, 63 Brown v. Pickard (Utah), 9 Pac. R. 
 
 Ind. 194 ; Iddings v. Pierson, 100 Ind. 573. • 
 
 418; Crozier v. Kirker, 4 Tex. 252; s Sage r. Sherman, 2 N. Y. 417. 
 
 51 Am. Dec. 724 ; Getchell v. Foster, ^Getchell v. Foster, 106 Mass. 42. 
 
 106 Mass. 42; Austin v. Williams, 2 It must not be forgotten that if 
 
 Oh. 61 {dictum); Ex parte Bncklej, 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 Gex, 153; Ex own name upon the firm by declar- 
 
 jjar^e Stone, L. R. 8 Ch. App. 914; ing they are for the firm. Uhler u. 
 Vol. 1 — 14 209
 
 §201. 
 
 NATURE AND FORJIATION. 
 
 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 i^artner- 
 ship debt, though no note was given. ^ 
 
 But if the partners have a name, no such hberty 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; Dryer 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. Elwyu, 1 Caines, 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 Elwyn's Store 
 and sometimes Elwyn's & Whitta- 
 ker's Store. 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, 29 Iowa, 462, it 
 was said that if it was intended to 
 bind the firm, any signature would 
 suffice, 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 bo 
 
 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, 2 Oh. 65. And 
 see Baring v. Crafts, 9 Met. 380. 
 
 3 Kirk V. Blurton, 9 M. & W. 284; 
 12 L. J. Ex. 117, In 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. 
 
 4 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 released. It was said on page 189 
 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. Tlie 
 only proper explanation of this die- 
 
 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 shght 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. 
 330; 3 P. & D. 187 (1840), where three partners, Richmond, Bar- 
 boui and Hannay, carried on bxsniess under the name of " The New- 
 castle & Sunderhmd 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., sayiug 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 ALDERSOisr, 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 Johu Blurton & Co. are not substantially the same. So where 
 a firm's name is Charles G. Ramsey & Co. and a partner signed a 
 notetChas. 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 
 
 fwm is that the firm would be liable iTilford v. Ramsey, 37 Mo. 563, 
 upon the original consideration and 567 ; Kinsman v. Dallam, 5 Mon. 
 not upon the paper. See § 440. (Ky.) 383. And see Mifliin 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 Maloue, 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 had 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 172, 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 
 
 ^Moffatv. McKissick, 8 Baxter, 517. on in the name of N. Smith. Pal- 
 
 8 Williamson v. Johnson, 1 B. & mer v. Stephens, 1 Den. 471, where 
 
 C. 146; 2D. & R., 281 (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. 389; 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, 21 
 Mellendy v. New Engl. Prot, Union, Md. 538, where firm's notes in the 
 36 Vt. 31, where the name of the name of one partner had been recog- 
 New England Protective Union, Di- nized, 
 
 212
 
 THE FIRM 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 III. 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." 
 
 § ^05. 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. Hutchings, 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 firm 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 g§ 436-447. Goldie v. Maxwell, 1 
 
 cided on the ground that the firm Up, Can. Q. B. 424, anote in individ- 
 
 was liable on the original considera- ual name for partnership purposes; 
 
 tion and not on the paper, adistinc- s. P. Re Herrick, 13 Bankr. Reg. 312; 
 
 tion which the court recognized in Strauss v. Waldo, 25 Ga. 641. See 
 
 Macklin v. Crutcher, 6 Bush, 401, Butterfield v. Herasley, 12 Gray, 
 
 Barcrof t v. Haworth, 29 Iowa, 463 ; 226. 
 
 Farmers' Bk. v. Bayliss, 41 Mo. 274, 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, Meiga 
 
 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 u. Tap- Huu, 422); Patterson v. Brewster, 4 
 
 scott, 9 Leigh (Va.), 424. And see Edw. Ch. 353, 355; U. S. v. Astley, 3 
 
 Miner V, Downer, 19 Vt, 14; 20 id, 461, Wash. C. C, 508. 
 
 213
 
 § 206. NATURE AND FORj^IATION. 
 
 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 binds 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 plamtifFs. — 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.* 
 
 » Dryer v. Sander, 48 Mo. 400. « Miner v. Downer, 19 Vt. 14; 20 id. 
 
 'Hancock v. Hintrager, 60 Iowa, 461, and § 196. 
 874. ^ See under Remedieai 
 
 2U
 
 PART II. 
 
 CONDUCT 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 liabilities. 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 appeared 
 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 Re Great Western Tel. Co. 5 Biss. action for an account cannot be de- 
 
 363; Smith v. Tarlton, 2 Barb, Ch. feated in the latter state for such 
 
 336; Coleraau 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, 12 Rich. L. 
 
 Jordan v. Miller, 75 Va. 442. And 176. 
 
 if formed in a state where it must be 3 Morris v. Peckham, 51 Conn. 128; 
 
 written, but is to be executed in a Williams v. Jones, 5 B. & C. 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 huyer, 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 as 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 
 
 2 Williams v, Jones, 5 B. & C. 108, promises. 
 
 110. For the subject of the statute of 3 Morris v. Peckham, 51 Conn, 
 
 frauds as applied to real estate, see 128. 
 
 §301. In Huntley V. Huntley, 114 U. 'iPicou. Cuyas, 47 Cal. 174. See, 
 
 S. 394, the query was raised whether also, Baxter v. West, 1 Dr. & Sm. 
 
 the sale of a share in a partnership 173; W^illiams u. 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. 42 ; Gates v. Fraser, ft 
 
 of £10 or upwards. But in Coleman 111. App. 229; Southmayd v. South- 
 
 t?. Eyre, 45 N. Y. C8, 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.) 
 
 wlio 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 f" Huntley v. Huntley, 114 U. S. 
 
 of frauds, but an agreement to share 394. 
 
 216
 
 ARTICLES OF PARTNERSHIP. §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 delivery, 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 all 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-annual settlement.* 
 
 1 Evans v. Hanson, 42 111. 234. Pilling, 3 DeG. J. & Sm. 163 ; Hall v. 
 
 ZReiteru. Morton, 96 Pa. St. 229, Sannoner, 44 Ark. 34; Boisgerard v. 
 
 241. Wall. Sni. & Mar. Ch. 404 ; McGraw 
 
 8 Lowe V. Thompson, 86 Ind. 503. v. Pulling, 1 Freem. (Miss.) Ch. 357; 
 
 4 Const u. 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. 
 820, on app. f r. 33 Beav. 1 ; England » Lawes v. Lawes. 9 Ch. D. 98. 
 V. Curling, 8 Beav. 129 ; Pilling v. 
 
 217
 
 § 212. CONDUCT OF THE BUSINESS. 
 
 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 charges as to them on 
 the books of the firm, this acquiescence will prevent his claiming 
 that the fees are not a partnership demand." 
 
 § 212. provisions not acted on.— So a provision in 
 
 the articles that has never been acted upon will be regarded 
 as expunged. Thus, in Jackson v. Sedgwick, 1 Svvanst. 
 4G0, it was agreed that annual settlements should be had, 
 and in case of death an allowance to the representatives in 
 lieu 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 
 
 1 Per Lord Eldon, Const v. Har- articles provide that tlie 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 
 <Ged(le3 v. Wallace, 2 Bligh, 270. property of the firm. See Jiij 56, 59. 
 * Thrall v. Seward, 37 Vt. 573. 6 And see Simmons u. Leonard, 3 
 
 Other examples occur where the Hare, 581. 
 
 218
 
 ARTICLES OF PARTNERSHIP. §214. 
 
 ill Boyd V. Mynatt, 4 Ala. Y9, 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- 
 l)ressly 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.* 
 
 § 21-t. 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, 
 
 ^Contra, see Smith v. Duke of Livingston v. Lynch, 4 Johns, Ch. 
 Chandos, Barnardiston, 419 ; a 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, S Beav. 4 Const v. Harris, Turn. & E. 496, 
 139; Abbot v. Johnson, 32 N. H. 9; 524, 
 
 s§316. 
 219
 
 § 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 may render him 
 liable 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 au 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 the}'^ 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 j'ear, 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. 
 
 lu 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 § 323. Beacliani v. Eckford, 3 Sandf. Ch. 
 
 2 Ala. Fertilizer Co. v. Reynolds & 116, 120. 
 
 Lee, 79 Ala. 497. * Coventry v. Barclay, 3 D. J. S. 
 
 »Gedde8 v. Wallace, 2 Bli. 270, 297; 320. 
 
 220
 
 ARTICLES OF PARTNERSHIP. § 216. 
 
 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, are 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 continues; ^ 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 
 his executor,' or at a valuation,^ applies to the continued 
 partnership; but this cannot be exercised several years after 
 
 1 It is 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. 173 ; Blasdell v. Souther, 6 Gray, 
 the boolis to be the understanding of 149; Mifflin v. Smith, 17 S. & R. 165; 
 the firm, are as conclusively estab- Bradley v. Chamberlin, 16 Vt. 613. 
 lished as if in a regular contract. See Gould v. Horner, 12 Barb. 601. 
 Stewarts. Forbes, 1 Hall &Tw. 461; 3 Bradley u Chamberlin, 16 Vt. 
 1 Macn. & G. 137. 618; Boardmau v. Close, 44 Iowa, 
 
 2 Cox V. Willougliby, 13 Ch. D. 863; 428. 
 
 Clark V. Leach, 32 Beav. 14 (aff'd in ^Qillett v. Thornton, L. R. 19 Eq. 
 
 1 DeG. J. & Sm. 409); Austen v. 599, a statute having made this 
 
 Boys, 24 Beav. 598 (aff'd in 2 DeG. & clause enforcible. 
 
 J. 626); Booth v. Parks, 1 Moll. sCox u. 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. 529. 
 
 Mason, 176, 185 ; Stephens v. Orman, 6 Essex v. Essex, 20 Beav. 442. 
 
 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 j^ear, 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 F. 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- 
 
 iSce Yates v. Finn, 13 Ch. D. 839. as to surviving partners continuing 
 
 2 Austen v. Boys, 24 Beav. 598 vt^ithout settlement, Foster v. Hall, 
 (aff'd in 2 DeG. & J. G2G). 4 Humph. (Tenn.) 346. 
 
 3 Bobbins v. Laswell, 27 111. 365. 6 King v. Chuck, 17 Beav. 325 ; 
 * Burn V. Strong, 14 Grant's Ch. Robertson v. Miller, 1 Brock. 466. 
 
 (Up. Can.) 651. ''Boardman v. Close, 44 Iowa, 428; 
 
 » Parsons v. Hay ward, 31 Beav. 199; Sangston v. Hack, 52 Md. 173. 
 aff'd m 4 DeG. F. & J. 474. Contra, 
 
 223
 
 ARTICLES OF PARTNERSHIP. § 219. 
 
 out interruption, the compensation must be allowed as under the 
 old articles.* 
 
 § 2 1 8. Clauses which do 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 
 Buch person may, perhaps, collect his amounts as they fall due, he 
 cannot have an action against the partners for refusing to go on 
 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 
 
 524. 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- 2Featherstonhaugh v. Fenwick, 17 
 
 lives 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 Duffield v, Brainerd, 45 Conn. 424. 
 
 objected to the agreement being con- ^ Clark v. Leach, 32 Beav. 14 ; aflf'd 
 
 tinned, 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 5 Greenwood v. Sheldon, 31 Minn, 
 
 partner, and the subsequent admis- 254. 
 
 223
 
 § 221. CONDUCT OF THE BUSINESS. 
 
 a partner who has agreed to paj' 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 cannot 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 controversy 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, <j,nd 
 partly because an express covenant to that effect can be en- 
 forced by injunction.^ 
 
 § 221. Time partnership begins. — 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; audit 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, iu 
 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- 
 assumimt^ 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 
 
 iMnlntyre v. Belcher, 14 C. B. N. SThis is fully considered under lu- 
 S. G5i. choate Partnerships, § 80. 
 
 3Seeg§199, 660. 
 
 234
 
 ARTICLES OF PARTNERSHIP. g 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.' 
 
 § 222. 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 liability to his copartners, however ruin- 
 ous the consequences to them. But the agreement for a 
 fixed term need not be express; it may appear by implica- 
 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 
 
 2Vere v. Ashby, 10 B. & C. 288. not know this. The lender cannot 
 
 In this case, on June 24, C. agreed to hold C. upon the paper, 
 become a member o? the firm of A. 'See Battley v, Lewia, 1 M. & Q, 
 
 & B., the partnership to be consid- 155. 
 ered as beginning from M;)y 18. On 
 
 Vol. 1—15 235
 
 § 224. CONDUCT OF THE BUSINESS. 
 
 and to tlie 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 fidelity 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 of 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." 
 
 * 55 158. 4 McFerran v. Filbert, 103 Pa. St. 73. 
 
 *§816. 8 Boast V. Firth, L. R. 4 C. P. 1; 
 
 3 See § 770. Robinson v. Davison, 6 Exch. 269. 
 
 226
 
 ARTICLES OF PARTNERSHIP. g 225. 
 
 And for the same reason, if a partner is to be permitted to 
 hacve 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 except time for fulfilling the duties of any 
 oflSce 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 
 firm 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 
 be 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 affirmative 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 
 
 1 § 306. 3 § 313. 
 
 2 See §269. <§314. 
 
 227
 
 § 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 
 
 1 §§ 959, 961. to be reimbursed to him out of the 
 
 2 § 781. crop. Nichol v. Stewart, 36 Ark. 
 
 3 § 255. 612. If a partner contributes the use 
 * An agreement in the articles of a of a mill, macJiinery, etc., the firm 
 
 planting partnership that one part- is not bound to leave it in good re- 
 
 uer 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 Dunnell v. Henderson, 23 N. J. 
 
 plies consumed in the use were Eq. 174. 
 
 228
 
 ARTICLES OF PARTNERSHIP. § 22S. 
 
 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 division, 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 tVere 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 § 297. case that the question was of the 
 
 2 Kennedy v. Kennedy, 3 Dana, 239. riglit to take possession of an article 
 
 3 In Canithers 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, 2G0. 
 
 229
 
 § 229. CONDUCT OF THE BUSINESS. 
 
 In Parnell v. Robinsou, 58 Ga. 26, a firm for tlie storage and 
 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 adujinis- 
 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 be3^ond 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 jDrofits. 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 bad debts, 
 decay of goods and inevitable accidents excepted. The proper 
 construction is not that bad debts are to be deducted out of the 
 
 •See Doane v. Adams, 15 La. Ann. S'jO; Shea v. Donahue, 15 Lea, 160. 
 
 230
 
 ARTICLES OF PARTNERSHIP. § 230. 
 
 capital but out of the profits; there would be no profits 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, in Braun'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 inciden tal expenses.* 
 
 § 230. - — net profits. — The term net profits means, in 
 effect, the same thing as profits, and the term gross profits 
 
 I 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 
 §§ 781, 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 th;it if the net profits in any one year should be so 
 small that W.'s portion should not amount to $2,5t)0, his account 
 should be credited with enough to make up that sum. Heavy 
 losses having occurred, W. claimed that he 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 v. Miller, 105 Grants. Bryant, 101 Mass. 567; Du- 
 Mass. 103. So are losses by fire, mont v. Ruepprecht, 38 Ala, 175. 
 Gill V. Geyer, 15 Oh. St, 399; Me- But if a partner is to get half the 
 serve v. Andrews, 106 Mass. 419; and crop after all supplies which he had 
 see next section. So if one partner furnished were paid, the payment . 
 guaranties to the other $10,000 profits 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. 613. 
 made, this means that the former's 
 
 232
 
 ARTICLES OF PARINERSHIP. § 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 debts, 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 to 
 draw checks or 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 
 
 iWhitcombv. Converse, 119 Mass. 5 Where one partner was to fur- 
 
 38, 43; 20 Am. Rep. 311, nish all the capital, payable in sucL 
 
 2 Gill V. Geyer, 15 Oh. St. 399. And sums as nray be drawn for by the 
 
 see Meserve V. Andrews, 106 Mass. operating agent, to be used in buying 
 
 419. logs, but neither of the partners nor 
 
 5 Carlisle v. Tenbrook, 57 Ind. 529 ; the agent were to sign the firm name 
 
 Taft u. 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 oa 
 
 Geyer, 15 Oh. St. 399; 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. Gasliu v. Piuuey, 23 
 
 Mass. 341. This subject is treated Minn. 26. 
 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 between 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 bo 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 cannot compel the arbitrators to 
 act or to decide.* True, the 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 
 
 1 See §326. < Tattersall v. Groote, 2 B. & P. 
 
 2 See Davis v. Amer, 3 Drew, 64. 131; but in Liviogston v. Ralli, 5 E. 
 
 3 Street v. Righj, 6 Ves. 615, 618; & B. 132, the action was lield to lie. 
 Tattersall v. Groote, 2 B. & P. 131, 5 Cooke v. Cooko, L. R. 4 Eq. 77, 
 135; Leeu. 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. 201 ; s. c. Ala. 
 121 Mass. 390; Page v. Vankirk, 6 Sel. Cas. 156; Page v. Vaiikirk, 6 
 Phila. 264; 1 Brewst. 282. The case Pliila. 264; s. C. 1 Brewst. 2»2. See 
 of Hulfhide v. Fenning, 2 Bro. C. C. De Pusey v. Dupont, 1 Del. Ch. 82. 
 336, has been overruled upon this But see Russell v. Russell, 14 Ch. D. 
 point in numerous cases not involv- 471. 
 
 ing partnerships. 6 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 settlemeut 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 specificallj' 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 
 
 » Waters u. Taylor, 15 Ves. 10. < Green v. Waring, 1 W. Bl. 475; 
 
 2 Page V. Vankirk, 6 Phila. 264 ; 1 Hutchinson v. Whitfield, Hayes 
 
 Brewst. 283. (Irish), 78. The dissolution was 
 
 8 Haley v. Bellamy, 137 Mass. 357. awarded as of a day then past in 
 
 In England the statute, 17 and 18 Routh v. Peach, 3 Anstr. 637. And if 
 
 Vic. ch. 125, § 11, now controls, and the articles provide that dissolution 
 
 provides that if parties have agreed must be by deed, an award under 
 
 in writing to submit disputes to arbi- seal satisfies them. Hutchinson v. 
 
 tration, and shall nevertheless com- Whitfield, supra. 
 
 mence suit, the court may, if there sSimmonds 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 2 Cr. M. & 
 
 may take place. This provision was r, 241 ; Leavitt v. Comer, 5 Cush. 
 
 acted upon in Plews v. Baker, L. R. jgg. 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. 509; 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 iishnient to B., he to pay its debta 
 
 V. Russell, L. R. 14 Ch. D. 471. and R. $4G8. A creditor of the mei> 
 
 235
 
 S 2;m. 
 
 CONDUCT OF THE BUiJlNE-S. 
 
 ■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;* or 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- 
 
 chaudising establishment got judg- ^ Cook v. Jenkins, 35 Ga. 113; Bur- 
 
 ment and levied on individual estate ton w. Wigley, 1 Bing. N. C. 665. 
 
 of R. and B. respectively. R. asked 7 Cook v. Jenkins, su^jra. 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 
 
 tiie injunction would be dissolved; and make other disposition of the 
 
 for eacii part of the award depends property. McCormick v. Gray, 13 
 
 on the other parts. Runyon v. Bro- How. 26. 
 
 kaw, 5 N. J. Eq. 340. 8 Lingood v. Eade, 2 Atk. 501, 505. 
 
 1 Wood V. Wilson, 2 Cr. M. & R. 241. Nevertheless he did so by appointing 
 
 2 Lingood u Eade, 2 Atk. 501, 505. a person for tlie purpose, tlie coui-t 
 
 3 Burton v. Wigley, 1 Bing. N. C. 
 6i)5. 
 
 *Simmonds v. Swaine, 1 Taunt. 
 54'd ; Byers v. Van Deusen, 5 Wend. 
 268. 
 
 saying nothing as to the authority in 
 Routh V. Peach, 2 Anstr. 519. 
 
 ^Ee IMackey, 2 A. & E. 356. 
 
 10 Burton v. Wigley, 1 Bing. N. C. 
 665 : Morley v. Newman, 5 D. & R. 
 
 6 Hutchinson v. Wliitfield, Hayes 317; Green v. Waring, 1 W. Bl. 475, 
 (Irisii), 78; Cook v. Jenkins, 35 Ga. 1 13. 
 
 236
 
 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- 
 tei's, 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 partnership 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 sufficiently 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 
 
 I Wilkinson v. Page, 1 Hare, 226. 2 Leavitt v. Comer, 5 Cush. 129. 
 In Tattersall v. Groote, 2B.& P. 131, 3Ebert v. Ebert, 5 Md. 353. Two 
 where a partner liad paid a sum of persons formerly partners submit all 
 money or premium for admittance matters between tlieni to arbiti'ation. 
 into the firm, it was held that the After the hearing had begun they 
 arbitrator could not award its return and anotlier person, who had trans- 
 unless the question was Bpecifically acted part of their business, submit 
 submitted, because its payment and to the same arbitratoi's all unsettled 
 tlie formation of the partnership matters between them, and an 
 was the consideration for sustaining award was made in the second arbi- 
 the covenant to submit to arbitra- tration that a certain sum was due 
 tion, and if tlie 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 punter, 13 Allen, 19. 
 only question is what was submitted. •• Lamplure v. Cowan, 39 Vt. 480. 
 
 237
 
 §237. CONDUCT OF THE BUoINESS. 
 
 periodical sum for support. It ouglit 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 than his 
 amount. 
 
 § 23 <). 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 be at " no expense," this means that 
 outlays for the business would 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 bi'nefit, 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 in the prosecution of 
 
 ^ § 781. 3 Brown v. Hayues, 6 Jones' Eq. 
 
 zstoughton V. Lynch, 1 Johns. Ch. (N. Ca.) 49. 
 467. <\Vitlier8 v. Witliers, 8 Pet. 355. 
 
 238
 
 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 hira." 
 
 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 givir.j^- 
 notice to copartners 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- 
 
 l§766. tire expense will be apportioned to 
 
 2 Burleigh v. 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 towards 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 344. 
 
 were in different proportions in the ^ § 574. 
 
 different lots, each partner is to be * Parker v. Gossage, 2 Cr. M. & R. 
 
 charged his proportion of the ex- 617; Biddlecombe u. Bond, 4 Ad. & 
 
 penses of raising the mineral on E. 332. , 
 
 each lot, but during the time in ^ See Bayley r. Schofield, 1 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- '' t^g 633-640. 
 
 239
 
 S 241. CONDUCT OF THE BUSINESS. 
 
 though the liahihty of the copartners to pay out a retiring 
 partner may be joint and several,^ yet on the bond or cove- 
 nant of indemnity their liabiHty 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 cov'enant,^ 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 uf 
 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 competitio^n, 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 plaintift and 
 
 Eq. oG-1 ; aff'd, 1 Ch. D. 30. defendants again became partners, 
 
 , '-' Wilmer t7. Currey, 2 DeG. & Sm. defendants covenanting to indemnify 
 
 347. against liabilities connected witii the 
 
 3 Sumner I'. Powell, 2 Mer. 30; aff'd, business the i)arties were formerly 
 
 T. & R. 43 '. in, this covenant refers to the time 
 
 * Saltoun i\ Iloustoun, 1 Bing. 433. they were all together and not to tlie 
 
 5 See § 550. time when the plaintiff was alone. 
 
 6 Where plaintiff and defendants Haskell v. Moore, 29 Cal. 437. 
 were in business together and de- ^ g 664. 
 
 feudants 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 1)8 exercised bona fide. — The power must 
 
 be exercised bona 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 hmitations, even though the power 
 
 1 Clarke v. Hart, 6 H. L. C. 633 ' Smith v. Mules, 9 Hare, 556. 
 (aff'g Hart v. Clarke, 6 DeG, M. & G. ssteuart v. Gladstone, 10 Ch. D, 
 232, and reversiug 19 Beav. 349). 626; Wood v. Woad, L. R. 9 Ex. 190. 
 
 2 Hubbard v. Guild, 1 Duer, 662. And see Blisset v. Daniel, 10 Hare, 
 But the solvent partner can obtain a 493 ; 1 Eq. 484 ; Russell v. Russell, 14 
 receiver if necessary. Id., and Free- Ch. D. 471. 
 
 land V. Stansfeld, 2 Sm. & G. 479. 9 Sleuart v. Gladstone, 10 Ch. D. 626. 
 
 3 Piatt V. Oliver, 3 McLean, 27 ; w Blisset v. Daniel, 10 Hare, 498 ; 1 
 Patterson v. Silliinan, 28 Pa. St. 304. Eq. 484. Where the accounts were to 
 
 4 Kimball V. Gearhart, 12 Cal. 27. be taken each year of all assets " sus- 
 
 5 Gorman v. Russell, 14 Cal. 531. ceptible 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, 28 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. 626. 
 
 Vol. I — 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 BHsset v. Daniel, 10 Hare, 403; s. c. 1 Eq. 484, articles 
 between seven partners provided that it should be lawhil for the 
 hoklers 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 alieu- 
 
 ner, he has not suffered damage and ation of it was involuntary, Dawson 
 
 cannot sue at law. Wood v. Woad, v. Beeson, 23 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 
 
 and accounting may be decreed, or assignee of a share a partner, see 
 
 Patterson v. Silliman, 28 Pa. St. 304. § 163. 
 
 The expelled partner going into busi- » Jefferys v. Smith, 3 Russ. 158, 
 
 ness again, althougli the other part- 168. 
 
 243
 
 ARTICLES OF PARTNERSHIP. § 244. 
 
 right 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 buj'' 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.* 
 
 § 244. 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 ordenng 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. 5 Noonan v. McNab, 30 Wis. 277. 
 
 B. 1. See, also, dictum in Noonau v. Orton, 
 
 2Glassington v. Thwaites, Coop. 31 id. 265. In the case cited the 
 
 115. But such notice had been adopted partnership was at will, and not for 
 
 under previous sales by the partners, a fixed term; hence the restriction 
 
 sHomfray v. Fothergill, L. R. 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. S. 9. Beav. 382. 
 
 243
 
 § 214. 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, Avliich, 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 in 2 Cook v. Collingridge, Jac. GOT; 
 some jurisdictions in case of the Rigden v. Pierce, G Madd. 353. 
 death of a partner. See Rammels- ' Nevertheless, this was done and 
 berg V. Mitchell, 29 Oh. St. 22. carried into effect in Cox v. Wil- 
 
 loughby, 13 Ch. D. 863. 
 244
 
 ARTICLES OF PARTNERSHIP. § 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 N.'s letters of solicitation to the companies are com- 
 petent evidence to show that he was a continuing partner. 
 
 § 245. if last valuation is imperfect. — In construing 
 
 and applying the right 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 will 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 settlemeiit 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 specified.' 
 
 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. 
 aud on app. 3 DeG. J. & Sm. 330. 
 
 245
 
 § 245. CONDUCT OF THE BUSINESS. 
 
 substituted for March 25, aud required an accounting as of Novem- 
 ber 5, 1812, aud 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; aud 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. Browning, 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.' 
 
 ilf 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, 2 Grant's 
 
 six months up to five years, "with Ch. (Up. Can.) 125. If two partners 
 
 interest tliereon 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 tliuse paid, Ewingu. Ewing, one of tliem, with the otlier's con- 
 
 L. E. 8 App. Cas. 822. 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-lialf 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, Knapp v. Levan- 
 
 £150 more than the other, these way, 27 Vt. 298. 
 clauses construed together mean that 
 
 246
 
 ARTICLES OF PARTNERSHIP. §21*. 
 
 §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 surviving partners to buy the 
 share of the deceased partner at a valuation, 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, and an agreement 
 as to paying for the good will, "etc.," as a separate item, the et 
 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. 
 
 2 Id. sDinham v. Bradford, L. R. 5 Ch. 
 
 i^Whitmore v. Mason, 2 Johns. & App. 519; Maddock v. Astbury, 33 
 
 Hera. 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 survivoi", and he ^ Cooper v. Hood, 26 Beav. 293. 
 
 shall be debtor to the decedent's 8 gee Vickers v. Vickers, L. R. 4 Eq. 
 
 executor, if bona fide, and for valu- 529 ; 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.' 
 
 § 24-8. 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, as 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 suc^ 
 
 ' Scharringhausen v. Luebsen, 53 ^%651etseq. 
 Mo. 337. 
 
 248
 
 ARTICLES OF PARTNERSHIP. § 249. 
 
 cessor 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 
 from 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 decatli — 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 sudden 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
 
 § 219. 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 
 agi-eement 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 lie 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 sufficient.* 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, who 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, GG Mo. 4G8. 
 
 2Pager. Cox, 10 Hare. 1G3; Wain- 6 Holland v. King, 6 C. B. 727. 
 
 wrij;ht v. Waterman, 1 Ves. Sr. 311. And see Brooke v. Garrod, 2 De G. & 
 
 3 Kershaw v. Matthews, 2 Russ. 62 ; J. 62 ; 3 K. & J. 608. 
 
 Downs V. Collins, C Hare, 418 ; Madg- ^ Jlilliken v. Milliken, 8 Irish Eq. 16. 
 
 wick V. Wimble, G Beav. 49.'5. 8 g GOO. 
 
 « Pigott V. Bagley, McCl. & Y. 569. » g§ 51-55. 
 
 250
 
 ARTICLES OF PARTNERSHIP. § 250. 
 
 partner, and there are no profits, lie need not pay it; lience, 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.' 
 
 § 250. 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 w^ill not be enforced unless actual 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 oth^r, 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 any 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 
 
 ^ Ex parte Havper,! Be Q. & J. 'iSO. 3 To use the expression of Cham- 
 2Kemble v. Farren, 6 Bing. 141; bre, J., in Astley v. Weldon, 2 B. & 
 
 Charleston Fruit Co. v. Bond, 26 P. 346. 
 
 Fed. Rep. 18. 
 
 251
 
 § 250. CONDUCT OF THE BUSINESS. 
 
 which are in their nature iincertain.' And where a Large sura 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 payuient 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; Perzell v. Shook, 53 N. Y. 
 
 2 See Clarke v. Lord Abingdon, 17 Superior Ct. 501. 
 
 253
 
 CHAPTER 11. 
 
 CAPITAL AND PROPERTY. 
 
 §251. What 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 upon 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, and 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 $iO,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 §16,000, being the difference between these 
 sums.' 
 
 1 Foster v. Chaplin, 19 Grant's Ch. 2 Topping v. Paddock, 93 111. 92. 
 (Up. Can.) 251. See, also, Wood v. ^Worthington v. Macdonell, 9 
 Scoles, L. R. 1 Ch. App. 369. Duval (Canada), 327. 
 
 253
 
 § 2o'-». CONDUCT OF THE BUSINESS. 
 
 "Whore 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 how 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 used 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 aSect the construction, since but for the 
 will the entire $13,000 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.* 
 
 iBall V. Farley (Ala.), 1 South. 90 Pa. St. 143, 146. In Stidger v. 
 
 Hep. 253; Evans v. Hanson, 42 111. Reynolds, 10 Oh. 351, money got on 
 
 234. See Jones' Appeal, 70 Pa. St. joint credit was called floating capi- 
 
 169. tal in distinction to fixed capital, 
 
 2 Dean v. Dean, 54 Wis. 23. but this is incorrect; borrowing on 
 
 3 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 Fulmer's Appeal, thereby created. 
 
 254
 
 CAPITAL AND PROPERTY. § 255. 
 
 § 253. Other than money. — Capital need not be contrib- 
 uted in 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. Contriljution slionld |je free of liens and charges. — 
 
 If 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 Bunnell v. Henderson, 23 N. J. more than that amount, L. is not a 
 Eq. 174. And if a person agrees to partner in the excess, and if less, L. 
 "advance" teams 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. 
 613. Where S. takes L. into partner- 426. 
 
 ship in a stock of ice, the articles re- 2Crawshay r. Collins, 3 Russ. 325; 
 citing that, in consideration of $150, 15 Ves. 218; 1 Jac. & W. 267; 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 Am. Dec. 106) ; Cock v. Evans. 9 Yer. 
 ice house," if S.'s stock of ice is (Tenn.) 287, 295-7. 
 
 255
 
 § 2oG. CONDUCT OF THE BUSINESS. 
 
 Thus, in Fulmer's Appeal, 90 Pa. St. 143, 146, a partnersliip 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 contribution 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. 330, 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- 
 maiuv 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 mon?y. Hence, as he had never 
 parted Avith his individual right to it, the interest to be received 
 upon increase of capital was not allowed.' 
 
 § 250. Is not iiidividujil 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 further point in this case drawn profits were added to the 
 see § 252. original capital. 
 
 2 s. P. Dumont v. Kuepprecht, 38 3 Wliere the use only of a thing is 
 Ala. 175. But see Raymond v. Put- contributed, the thing itself is not 
 nam, 44 N. H. IGO, 16y, where un- capital because it is not contributed. 
 
 25G
 
 CAPITAL AND PROPERTY. §257. 
 
 ors in them on dissolution, although no credit upon the 
 books was given him 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, contribute 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 Robiuson v. Asliton, L. R. 20 Eq. his own horses ; Crawshay v. Maule, 
 25 ; Ex parte Morley, L. R. 8 Ch. 1 Swanst. 523 ; Peacock v. Peacock, 
 App. 1026; Clements u. Jessup, 30 N. 1 Camp. 45; Ex parte Hamper, 17 
 J. Eq. 569. Ves. 403 ; Steward v. Blakeney. L. 
 
 2 Taft V. Schwamb, 80 III. 289. R. 4 Ch. 603; London Assur. Co. v. 
 
 3 See, for example, Malley i'. At- Dreunen, 116 U. S. 461, perhaps not a 
 lantic Ins. Co. 51 Conn. 222; Brad- partnership; Berthold v. Goldsmith, 
 bury V. Smith, 21 Me. 117; Nutting u. 24 How. 536; Stevens v. Faucet, 24 
 Ashcraft, 101 Mass. 300. 111. 483, and Fawcett v. Osborn, 33 
 
 4 French v. Sty ring, 2 C. B. N. S. id. 411, one owned the hides, the 
 857, 363, in the earnings of a race- other to work on them — probably 
 horse; Fromont u Coupland, 2 Bing. not a partnership, though called 
 170, and Barton r. Hanson. 2 Taunt, so; Robbins v. Laswell, 27 111. 365, 
 (9, in a stnge route, each providing one owned the cattle; Flagg v. 
 
 Vol. I — 17 257
 
 § 258. CONDUCT OF THE BUSINESS. 
 
 i 
 
 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 Mo, App. 631 ; Syers v. Syers, L. R. 
 
 machinery, a patent, and lands sep- 1 App. Cas. 174; Chase v. Barrett, 4 
 
 arately owned ; Graves v. Kellen- Paige, 148. 
 
 berger, 51 Ind. 66; Stumph v. Bauer, iSce §§ 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- 
 
 ouly the use of a mill and teams con- ring, 2 C. B. N. S. 357, 363, a race- 
 
 tributed; Blanchard v. Coolidge, 22 horse owned in common, but per- 
 
 Pick. 151; Howe v. Howe, 99 Mnss. haps not a partnership. See, also, 
 
 71, 73; Moody v. Rathburn, 7 Minn. Rushing v. Peoples, 43 Ark. 390, of 
 
 89; Han key v. Becht, 25 id. 212; goods held in common. 
 
 McCauleyu. Cleveland, 21 Mo. 438; 3 Reid v. Hollinshead, 4 B. & C. 
 
 Gillham v. Kerone. 45 Mo. 487; State 867; 7 D. & R. 444; Raba v. Ryland, 
 
 ea;reZ. u. Finn, 11 Mo. App. 546; Bow- Gow. N. P. 133; Tupper v. Hay- 
 
 ker V. Gleason (N. J.), 7 Atl. Rep. thorne, id. 135;/ie Gellar. 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 tlie hotel, they Cal. 345. See Julio v. Ingalls, 1 Al- 
 
 were partners in running it; Mooi'e len, 41. 
 
 V. Huntington, 7 Hun, 425; Bisbee y. * Tin's 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. 600). The Smith v. Watson, 2 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, 2 Strob. L. 
 
 made that a partnership in the 471, and those in §g 34-40. 
 
 profits and in the property must s Bradbury v. Smith, 21 Me. 117; 
 
 go together, in Dwinel v. Stone, 30 Knight v. Ogden, 2 Tenn. Ch. 473; 
 
 Mo. 384; Newberger v. Fields, 23 Newbrau r. Snider, IW.Va. 153. And 
 
 258
 
 CAPITAL AND PROPERTY. § 259. 
 
 § 259. Examples. — Where A. agreed to build houses for B. 
 at actual cost, the houses and lots to 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 construed 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 means 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- ^Bisbee v. Taft, 11 R. I. 307. 
 
 ure under a secret process, the in- 2 Pearce v. Pearce, 77 111. 284. 
 
 vention will be deemed to belong 3 Snyder v. Lunsford, 9 W. Va. 
 
 to all the partners, and each can use 223. 
 
 it after dissolution unless the right *Sims 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, 39 111.209; King 
 
 Holeing Co. v. Somervell, 38 L. T. v. Hamilton, 16 HI. 190. 
 
 N. S. 878; 26 W. R. 786. » Hankey v. Becht, 25 Minn. 213. 
 
 259
 
 g 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. buys 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, good 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 tlie 
 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. 112. 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 b}'' 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 
 
 1 Newbrau v. Snider, 1 W. Va. * Smith v. Watson, 2 B. «fe C. 401 ; 
 
 1 53. 3 D. & R. 751 ; Blanchard v. Coolidge, 
 
 -'Bowker v. Gleason (N. J.), 7 AU. 23 Pick. 151; Dupuy v. Sheak, 57 
 
 Rep. 885. lou'a, 3Cl;Gillham v. Kerone, 45 
 
 'Sturaph V. Bauer, 76 Ind. 157. Mo. 487; State ex rel. v. Finn, 11 
 
 And see Rushing v. Peoples, 42 Ark. Mo. App. 546 ; Bartlett v. Jones, 2 
 
 890. Strob. L. 471 (47 Am. Dec. 606). 
 
 260
 
 CAPITAL AND PROPERTY. § 2G1. 
 
 right 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, 
 procures 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. Gilfillan, 15 Hun, Fed. Rep. 737. A partnership to 
 267. build a railroad does not carry the 
 
 2 Snyder r. Lunsford, 9W. Va. 223. stock already held by each, and one 
 But the mere fact that advertising, partner cannot deal with the others' 
 of which tlie 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 & Northrup v. Phillips, 99 111. 419. 
 the advantages of the publicity. ^ Manhattan Ins. Co. v. Wheeler, 59 
 
 Morison v. Moar, 9 Hare, 241, 2(56. Pa. St. 227. 
 
 3 Ex parte Connell, 3 Deac. 201 ; " Priest v. Chouteau, 12 Mo. App. 
 Ex parte Hinds, 3 De G. & S. 013; 252; 85 Mo., 898; Morton v. Ostrom, 
 Wilde V. Jenkins, 4 Paige, 481 ; Ken- 33 Barb. 256. 
 
 ton Furnace Mfg. Co. v. McAlpin, 5 8 g 395. 
 
 261
 
 § 203. CONDUCT OF THE BUSINESS. 
 
 §262. Purchases hj one may Ibe 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 contributed.^ 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 wliich 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 
 
 ^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 remain his own 
 Sm. 351, of office furniture; i^ajpar^c property, and if consuilied 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. Claucey, 16 Mo. 
 firm, see § 104. App. 549. 
 
 'Person v. Wilson, 25 Minn. 189. ^ Ex parte Owen, 4 DeG. & Sm. 
 
 ^Laswell v. Robbins. 39 111. 209; 351; Parker v. Hills, 5 Jur. N. S. 
 Kingv. Hamilton, 16111. 190; White 809; 7 id. 833. And see Pilling v. 
 Mountain Bank v. West, 46 Me. 15. Pilling, 3 DeG. J. & S. 163. 
 There is one decision holding that 
 
 263
 
 CAPITAL A^D 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 terra 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 Lis two sons as 
 partners, he putting in liis 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.* 
 
 § <iG4r. 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 partnei-ship 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 vsrere 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., 
 
 » Malley v. Atlantic lus. Co. 51 2 Morton u Ostrom, 33 Barb. 256. 
 Conn. 223; Sims v. Willing, 8 S. & sBurdon v. Barkus, 4 Giff.'412; 
 R. 103; Rogers v. Nichols, 20 Tex. aflf'd in 4 DeG. F. & J. 43. 
 719. Here A. contracted to buj' a ^Cook v. Ben bow, 3 DeG. J. & 
 storehouse and merchandise, and Sm. 1. 
 
 then took B. and C. into equal inter- » Wadsworth 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. 
 
 263
 
 ^ 2C5. CONDUCT OF THE BUSINESS. 
 
 whereupon lie 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 Ijalance.' 
 
 §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 does 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 ti-nst 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. 268. 7 See §§ 545-6. A firm of mechan- 
 
 2Wilde V. Jenkins, 4 Paige, 481 ; ics engaged to do ceitaiu 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, 
 
 ject is considered further under Real may file the lien, but holds it for the 
 
 Estate, § 279 et seq. benefit of the last firm, which owns 
 
 'Hersom v. Henderson, supra, the debt, though as to tlie employer, 
 
 * Vetterr. Lentzinger, 31 Iowa, 182. the subsequent firms may be regard- 
 
 *Montross v. Mabie, 30 Fed. Rep. ed as agents of the original to do the 
 
 234. work. German Bank v. Schloth, 59 
 
 •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. individual property acquired at firm's ex- 
 pense. — Proi3erty 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 macliine 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 invention to the firm's machines, 
 each member can after dissolution continue the use of those ma- 
 chines with the invention embodied in them.* 
 
 §267. Claims outside 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 u. Lidgerwood, 69 N. Y. Rep. 47; McWilliams Mfg. Co. v. 
 
 198. Blundell, 11 Fed. Rep. 419: 23 Pat. 
 
 2 Reno V. Crane, 2 Blackf. 217; Oflf. Gaz. 177. 
 
 Smith V. Smith, 5 Ves. 189; Walton 5 Belcher v. Whitteniore, 134 Mass. 
 
 V. Butler, 29 Beav. 428; Ex parte 330; Burr v. De La Vergue, 102 N. 
 
 Emly, 1 Rose, 64. And see similar Y". 415. 
 
 cases under Real Estate, § 284. 6 Wade v. Metcalf, 16 Fed. Rep. 
 
 «See Smith v. Smith, 5 Ves. 189, 130. 
 
 * Keller v. Stolzenbach, 20 Fed. 
 
 265
 
 § 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 se-wer 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 vvhil- 
 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 their 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 bj 
 recovered by the firm.* 
 
 § 269. Personal benefit. — 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 office, the emoluments of the 
 office are generally presumed to be individual property;^ but 
 the emoluments may be assets if the general scope of the 
 
 iTiernanu. Doran, 19 Neb. 493. 551. See Thompson v. Ryan, 2 id. 
 
 2 Collins V. Butler, 14 Cal. 223. 565, that if tlic property itself be 
 
 < Bread v. Lynn, 126 Mass. 3G7. restored, its joint character has con- 
 
 ♦Blakeley V. Le Due, 22 Minn. 476. tinned. Moft'at v. Farqnharson, 2 
 
 5 Blackislon's Appeal, 8 1^ Pa. St. Bro. C. C. 338. 
 
 839. 8 Alston v. Sims, 24 L. J. Ch. 553; 
 
 6 Fowler v. Tnttie, 24 N. H. 9. 1 Jur. N. S. 458; Starr v. Case, 59 
 'Campbell v. MuUett, 2 Swanst. Iowa, 491 (g 224). 
 
 266
 
 CAPITAL AND PROPERTY. § 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 tlie 
 latter his agent, but agent of the firm." A license to a firm will 
 authorize the continuing partner to act alone; * but q_um'e had the 
 change bsen 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 contaiued 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. 045, 4 Webber v. Williams, 36 Me. 512; 
 of one attorney holding a clerkship. Shaw v. State, 56 Ind. 188. 
 
 2 Caldwell V. Leiber. 7 Paige. 483, s United States v. Glab, 99 U. S. 
 where one partner acted as deputy 225; State v. Gerhard t, 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. R. 14 Eq. license to act as broker. 
 
 427 ; Smith v. Mules, 9 Hare, 556. ^ United States v. Glab, supra. 
 
 267
 
 g 272. CONDUCT OF THE BUSINESS. 
 
 sentiug 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 owfns, per 
 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- 2 go 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 'Ins. Co. v. Verdier, 35 Mich. 3 Hoffman v. JEtmi 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- 47 Tex. 406; 20 Am. Rep. 293; 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 III. 272; Hart- 
 void, ford F. Ins. Co. v. Ross, 23 Ind. 179. 
 
 268
 
 CAPITAL AND PROPERTY. 
 
 §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, hecause watchfulness was not stipulated for, and he 
 could abstain, even while a partner, from care or attention for any- 
 thing in the polic3^' 
 
 § 273. retirement of one of two partners. — And the 
 
 same reasoning was adopted to 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 
 possession where it was. Drennen 
 V. London Assur. Corp. 20 Fed. Rep. 
 657 (dictum); reversed on other 
 points, 116 U. S. 461. Other cases deny 
 recovery on the technical ground 
 that no number less than all those 
 originally contracted with can sue, 
 and all cannot sue, because one has 
 no interest remaining. Baltimore F. 
 Ins. Co. V. McGowan, 16 Md. 45; Tate 
 V. Mutual F. Ins. Co. 13 Gray, 79; 
 Tillou V. Kingston Mut. Ins. Co. 5 
 N. Y. 405 (rev. s. c. 7 Barb. 570). 
 This ground is answered in West v. 
 Citizens' Ins. Co. 27 Oh. St. 1, sus- 
 taining a suit under the code in the 
 name of the continuing partners, and 
 is ignored in Powers v. Guardian Ins. 
 Co. 136 Mass. 108, sustaining suit in 
 the names of all the original insured. 
 
 1 Powers V. Guardian Ins. Co. 136 
 Mass. 108; 49 Am. Rep. 20; Hoffman 
 V. ^tna F. Ins. Co. 32 N. Y. 405; 
 West V. Citizens' Ins. Co. 27 Oh. St. 
 1 ; 22 Am. Rep. 294. 
 
 2 Burnett v. Eufaula Home Ins. Co. 
 46 Ala. 11 ; 7 Am. Rep. 581 ; Dermani 
 V. Home Mut. Ins. Co. 26 La. Ann. 
 69; Powers v. Guai-dian Ins. Co. 136 
 
 Mass. lOS; 49 Am. Rep. 20 (the 
 clause here was against a sale and 
 not against change of title, and sale 
 was said to mean sale of the whole ; 
 this case also suggests tlie entity 
 theory, holding that the firm is con- 
 tracted with as one person and inter- 
 nal changes are not considered) ; 
 Pierce v. Fire Ins. Co. 50 N. H. 297 ; 
 9 Am. Rep. 235; Combs v. Shrews- 
 bury Ins. Co. 34 N. J. Eq. 403, 411- 
 12; Hoffman v. JEtna. F. Ins. Co. 32 
 N. Y. 405 (aff'g 1 Robt. 501; 19 Abb. 
 Pr. 235) ; W^ilson v. Genesee Mut. Ins. 
 Co. 16 Barb. 511; Hobbs u. Memphis 
 Ins. Co. 1 Sneed (Tenn.), 444, here a 
 transfer or sale of property was not 
 forbidden, but only an assignment of 
 the policy ; hence the buying partner 
 can recover for his own original in- 
 terest. Texas Ins. Co. v. Cohen, 47 
 Tex. 406. Contra, Finley v. Lyco- 
 ming Mut. Ins. Co. 30 Pa. St. 311, 
 forbidding alienation by sale; Buck- 
 ley V. Garrett, 47 id. 204; Keeler v. 
 Niagara F. Ins. Co. 16 Wis. 523. A 
 dissolution and division of goods 
 was lield a change of title, avoiding 
 a policy, Dreher v. ^tna Ins. Co. IS 
 Mo. 128. 
 
 269
 
 § 275. CONDUCT OF THE BUSINESS. 
 
 partner by anofclier 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 
 trovor against the other,^ unless there was a destruction of 
 tlie property or what amounts to a destruction of it, as far 
 as the plaintiff is concerned.' 
 
 § 275. Ajiplications. — Hence, if tlie 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. Clapliam, 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, judgment 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 hitter 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 
 Whitesides v. Collier, 7 Dana, 283; Martyn u. Knowles, 8 T. R. 146. 
 Crabtree v. Clapham, 67 Me. 326; 3 Jacobs v. Seward, L. R. 5 H. L. 
 Clapham v. Crabtree, 72 id. 473; Azel 464; Mayhew v. Ilerrick, 7 C. B. 229, 
 V. Betz, 2 E. D. Smith, 188; Wiielen where a sale of tlie whole on an exe- 
 V. Watmouf^h, 15 S. & R. 153; Ports- cution against one was held to be 
 mouth V. Donaldson, 32 Pa. St. such a destruction by the sheriff, 
 202; Course v. Prince, 1 Mill (S. Ca.), And see Execution, § 1108. Cubitt 
 413 (12 Am. Dec. 049). v. Porter, 8 B. *fc C. 257; Stedman 
 
 2 Fox V. Hanbury, Cowp. 445; Har- v. Smith, 8 E. & B. 1. 
 
 per V. Godaell, L. R. 5 Q. B. 422; < Kuhn v. Newman, 49 Iowa, 424. 
 Robinson v. Gilfillan, 15 Hun, 2G7; And see Remington v. Allen, 109 
 Morganstern v. Tiuift, G6 Cal. 577; Mass. 47. 
 Kellogg V. Fox, 45 Vt. 348; Smith v. 
 
 270
 
 CAPITAL AND PROPERTY. ^5 275. 
 
 his balance at the end of a suit for an accounting. It was queried, 
 however (pp. 477-8), whether the plaintiff had not, by replevying, 
 estopped himself to claim that it was partnership property and 
 therefore must pay in full. 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- 
 f-iudants, 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 wliere S. and H., partners, being sued on their notes, H. 
 pleaded that they g,ssigned 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, 32 Pa. ing that had the goods been actually 
 
 St. 202. destroyed perhaps an action might 
 
 2Cooley V. Sears, 23 111. 613. lie; Danau Gill, 5 J. J. Mar. 242; 20 
 
 aConkliri v. Leeds, 58 111. 178. Am. Dec. 255; Whitesides v. CoUier, 
 
 * Whitesides v. Collier, 7 Dana, 283. 7 Dana, 283; Mason v. Tipton, 4 Cal. 
 
 * Montjoys v. Holden, Litt. Sel. 276. 
 
 ( as. 447 (12 Am. Deo. 331), suggest- 6 Per Hunt, C. J., Tell v. Beyer, 
 
 271
 
 ^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 awa)'' 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 
 
 iff'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. 289. cannot sue the other partner for con- 
 
 iFox v. Rose, 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 S 383. 3 Sloan v. Moore, 37 Pa. St. 217: 
 
 nieaher v. Cox, 1 Sel. Cas. Ala. High v. Lack, Phil. (N. Ca.) Eq. 175; 
 
 156; 37 Ala. 201; Nichol v. Stewart, Halstead v. Shepard, 23 Ala. 558, 
 
 36 Ark. 612, 621; Miller v. Brigham, 573. 
 
 50 Cal. 615; Reece v. Hoyt, 4 Ind. ••Soule v. Hay ward, 1 Cal. 345; 
 169; Chase v. Scott, 33 Iowa, 309; State v. Butman, 61 N. H. 511; Na- 
 Flynn v. Fish, 7 Lansing, 117; Hor- poleon v. State, 3 Tex. App. 522. 
 ton's Appeal, 13 Pa. St. 67; Mont- Here N. and R. were to become part- 
 joys u. Holden, Litt. Sel. Cas. 447; ners with equal capitals. R. handed 
 12 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, where 
 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 money 
 
 273
 
 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 ho 
 ever enter again, may be bound over to keep the peace,* 
 
 If a partnership asset 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 this was held ^Reg. v. Evans, 9 Jur. N. S. 184. 
 
 not to reduce the crime from murder 2Cary v. WiUiams, 1 Duer, 667; 
 
 to manslaughter. Alfele v. Wright, Soule v. Hayward, 1 Cal. 345. 
 
 17 Oh. St. 238, one partner saying of ^Reg. v. Warburton, L, R. 1 Cr. 
 
 theother 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 pe?- .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 not 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 tlie embezzlement, if he converts the 
 
 firm, when, being indebted to it, he proceeds, is not malicious, 
 
 stealthily removes and appropriates 6 gaul v. Kruger, 9 How. Pr. 569. 
 
 them, Sieghortner v. Weissenborn, ''In Boynton v. Page, 13 Wend. 
 
 20 N. J. Eq. 172, 185 (rev. on other 425, one partner was to find stock 
 
 points, 21 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
 
 g278. CONDUCT OF THE BUSINESS. 
 
 §278. Exclusive right of possession in one. — But if 
 
 the partners have agreed that one of their number shall 
 have exckisive 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 vi^ould 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 will 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, C8 Ga. 428 ; 
 before it was worked up, the partner Belcher v. Van Dusen, 37 111. 281. 
 who was to furnish the stock re- » Harkey v. Tillman, 40 Ark. 551 ; 
 plevied it in his own name alone; it Kahleu. 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; Hum 
 til work had begun upon it, since any v. Morris, 44 Miss. 314. 
 other stock would have sufficed the * Kelly v. Murphy (Cal.), 13 Pac. 
 copartner. The defense, however, Rep. 467. 
 
 did not plead that title was in the 8 clay v. Grubb, 1 Litt. (Ky.) 222. 
 
 firm. 6 "Williams v. Barton, 3 Bing. 139 ; 
 
 » Bostick V. Brittain, 25 Ark. 482. aff'g 5 B. & Aid. 395. 
 
 274
 
 * CHAPTER HL 
 
 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. Tlie English law and our own are in general har- 
 mony upon the subject, except 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 
 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 
 may now be the commodity or stock dealt in by a partner- 
 
 275
 
 § 2S0. 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 tlie 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 accounting, 
 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 persons 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. Dickerson, 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, 322 ; Clagett v. Kilbourne, 1 Cal. 616. 
 
 Black, 346; Thompson v. Bowman, 2 Thompson v. Bowman, 6 Wall. 
 
 6 Wall. 316 ; Dudley v. Littlefield, 316. See § 287. 
 21 Me. 418; Sage v. Sherman, 2 N. Y. 
 
 27G
 
 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 v^hen 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 firm.- 
 
 i§ 239. 225, 237; Willet v. Brown, 65 id. 138; 
 
 2 Crawshay v. Maule, 1 Swanst. 27 Am. Rep. 265 ; Hogle v. Lowe, 12 
 495, 518; Hoxie v. Carr, 1 Sumner, Nev. 286; Jarvis v. Brooks, 27 N. H. 
 C. C. 173; Shanks v. Klein, 104 U. 37; 59 Am. Dec. 359; Cilley v. Huse, 
 S. 18; Oflfutt V. Scott, 47 Ala. 104, 40 id. 358; Messer v. Messer, 59 id. 
 125; Little v. Snedecor, 53 id. 167; 375; Matlack v. James, 13 N. J. Eq. 
 Hatchett v. Blanton, 73 id. 43a; 126; National Bank v. Sprage, 20 id. 
 Espy V. Comer, 76 id. 501 ; McCauley 13 (reversed on other points, 21 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 
 53 id. 6; Loubat u. Nourse, 5 Fla. 350; v. Sumner, 2 Barb. Ch, 105; Smith 
 Robertson u. 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. Hon. 320; Divine v. Mitchum, McBurney, 2 Sandf. 561; Deming v. 
 4 id. 488; 41 Am. Dec. 241; Scruggs Colt, 3 id. 284; Rank v. Grote, 50 N. 
 V. Russell. McCahon(Kan.), 39; Bry- Y. Superior Ct. 275; Hanff v. How- 
 ant V. Hunter, 6 Bush, 75; Burnam ard, 3 Jones (N. Ca.), Eq. 440; Sum- 
 V. Burnam, 6 id. 389; Spalding v. mey v. Patton, 1 "Winst. (N. Ca.) Eq. 
 Wilson, 80 Ky. 589 ; Buff um v. Buf- 52 ; Bank v. Sawyer, 38 Oh. St. 339, 
 fum, 49 Me. 108; Burnside v. Mer- 342; Greene v. Greene, 1 Oh. 535; 18 
 rick, 4 Met. 537; Dyer v. Clark, 5 id. Am. Dec. 042; Page v. Thomas, 43 
 563; 39 Am. Dec. 697; Howard v. Oh. St. 38; Tillinghastr. Champlin, 4 
 Priest, 5 id. 582; Scruggs v. Blair, R. I. 173; Bowman u. Bailey, 20 S. 
 44 Miss. 406 ; Carlisle v. Mulhern, Ca. 550 ; Hunt v. Benson, 2 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 partnership 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 purposes, 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. Dewey, 35 id. 555 ; to tlie 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. 248 land, and that the creditors of the 
 
 (56 Am. Dec. 143) ; Diggs v. Brown, firm were entitled to priority. 
 
 78 Va. 292; Hardy v. Norfolk Mfg. iSigourneyu Munn, 7 Conn. 11; 
 
 Co. 80 id. 404; Martin v. Smith, 25 Hogle v. Lowe, 12 Nev. 286; Way v. 
 
 W. Va. 579; Bird v. Morrison, 12 Stebbins, 47 Mich. 296; Wiegand v. 
 
 Wis. [lyS]; Bergeron v. Richardott, Copeland, 14 Fed. Rep. 118; s. C. 7 
 
 55 Wis. 129; Martin r. Morris, 62 id. Sawy. 442; Ai'nold v. Waiuwright, 
 
 418; Conger v. Piatt, 25 Up. Can. 6 Minn. o58. 
 
 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 v. Taylor, 49 Me. 252; Collins 
 ered if no bona fide riglit intervene, v. Decker, 70 id. 23; Deveney v. Ma- 
 See §8 544-546. In Spalding v. Wil- honey, 23 N. J. Eq. 247; Godfrey v. 
 son, 80 Ky. 589, on a contest between White, 43 Mich. 171 ; Bopp v. Fox, 63 
 partnership creditors and individual 111. 540; Geopper v. Kinsinger, 39 
 creditors of a partnership in a distil- Oh. St. 429; Winslow v. Chiffelle, 
 lery, as to whether six hundred Harp. (S. Ca.) Eq. 25. See Newton tJ. 
 acres of land bought with partner- Doran, 3 Grant's Ch. (Up. Can.) 353. 
 ship funds, and conveyed to the part- SBallantine 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 252, 253. That it may be considered 
 individual or partnership property, as partnership property to tiie extent 
 itisheld that the land was an incident of the value of the improvements, 
 
 278
 
 REAL ESTATE. § 284. 
 
 merely using his land without paying him for it, or giving 
 hira 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. — Eeal estate taken by part- 
 ners in satisfaction of a debt, or received 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.* 
 
 § 284. Books sliow 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 r. Loucks, 6 Barb. 19, 470; proving it was equivalent merely 
 King V. Wilcomb, 7 Barb. 263. A to dividing and converting so much 
 lease by one partner 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. 3G8; Mor- 
 150. gan V. Olvey, 53 Ind. 6; Paton v. 
 
 iBallantine v. Frelinghuysen, Baker, 62 Iowa, 704; Flanagan v. 
 supra; Chamberlin v. Chamberlin, Shuck, 82 Ky. 617; Whitney i\ Cot- 
 12 J. & Sp. (N. Y.) IIG. ten, 53 Miss. 689 ; Morrison y. Menden- 
 
 2Frink v. Branch, 16 Conn. 260; hall, 18 Minn. 232; Buchant?. Sumner, 
 Robertson v. Corsett, 39 Mich. 777. 2 Barb. Ch. 165; Leinsinringu. Black, 
 
 ■nVheatley v. Calhoun, 12 Leigh 5 Watts, 303; Collunab u. Read, 24 N. 
 (Va.). 264 (37 Am. Dec. 654). In Y. 505; Smith v. Ramsey, 6 III. 373. 
 Parker v. Bowles, 57 N. H. 491, it 5 Homer v. Homer, 107 Mass. 82; 
 •was held that property not purchased Collumb v. Read, 24 N. Y. 505, 511; 
 with partnership funds, and there- Faircliild v. Fairchild, 64 N. Y. 471 
 fore held as tenants in common, (aflf. 5 Hun, 407); Bergeron v. Rich- 
 could not be turned into partnership ardott, 55 Wis. 129; Harvey v. 
 property by oral agreement, and Pennypacker, 4 Del. Ch. 445. And 
 
 279
 
 § 285. CONDUCT OF THE BUSINESS. 
 
 if being owned by him 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 for the firm's business, 
 which was never done, and the expense of discounting the 
 note and its payment and the taxes, are charged 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 fimtls 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 purchase on the books, the use of the 
 
 see Ex parte McKenna, 3 De G. F. & ooflfutt v. Scott, 47 Ala. 104, 126. 
 
 J. C59; 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 afterwai'ds died, tlie 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 Robinson v. Ashton, L. R. 20 Eq. chase of the property against the 
 25. estate of the decedent does not estop 
 
 2 Collins V. Charlestown Mut. F. him to withdraw, and claim the prop- 
 Ins. Co. 10 Gray, 155. erty to be joint, where presentation 
 
 3 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. § 286. 
 
 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 
 w^ould no doubt be deemed as partnership property unless 
 the contrary were shown. ^ 
 
 § 286. use of property not conclusive.— If payment 
 
 of pui-chase money out of joint fund is alone 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 u. Self, 79 Ky. 297;Hatch- 
 
 649; Hanson v. Eustace, 2 How. ett v. Blanton, 72 Ala. 421 ; Sumner u. 
 
 653;Hanksu.Hinson, 4 Porter (Ala.), Hampson, 8 Oh. 828; 32 Am. Dec. 
 
 509; Wood v. Montgomery, 60 Ala. 722; Fall River Whaling Co. v. 
 
 500; Brewer v. Browne, 6S id. 210; Borden, 10 Cush. 458, 462-3. That 
 
 Hatchett v. Blanton, 72 id. 423; the method of charging it upon the 
 
 McGuire v. Ramsey, 9 Ark. 518; books will control the use, see Ex 
 
 Tillotson V. Tillotson, 34 Conn. 335 ; parte McKenna, 3 DeG. F. & J. 615. 
 
 Price V. Hicks, 14 Fla. 565; Matlock 3 See Johnson v. Clark, 18 Kan. 
 
 V. Matlock, 5Ind. 403; Indiana Pot- 157; Converses. 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. 328; 32 Am. Dec. 722; 
 
 B. Mon. 320; Dyer v. Clark, 5 Met. Wooldridge v. Wilkins, 3 How. 
 
 562, 579; 39 Am. Dec. 697; Richards (Miss.) 360; Pugh v. Currie, 5 Ala. 
 
 V. Manson, 101 Mass. 482, 484-5; 446; Allen v. Withrow, 110 U. S. 
 
 Smith V. Jackson, 2 Edw. Ch. 28; 119, 130. Declarations of the part- 
 
 Collumb V. Read, 24 N. Y. 505, 511; ners that land is partnership pi-op- 
 
 Tarbel v. Bradley, 7 Abb. New Cas. erty is evidence of the fact. Rust v. 
 
 273; Baird v. Baird, 1 Dev. & Bat. Cliisholm, 57 Md. 376. So is pay- 
 
 (N. Ca.) Eq. 524; King v. Weeks, 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- 
 
 122; 8 Am. Rep. 229; Providences, 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
 
 § 2S7. CONDUCT OF THE BUSINESS. 
 
 to or was faniished 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.^ 
 
 Thus, if two persons are tenants in common of a colHery 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 partuersliip 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 before 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 
 
 42; Waithman u. Miles, 1 Stark. 181; 2 Crawshay r. Maule, 1 Swanst. 
 
 Colnaghi v. Black, 8 C. & P. 464; 495,518, 523. 
 
 Rapier v. Gulf City Paper Co. 64 Ala. 3 Hogle v. Lowe, 12 Nev. 286, 
 
 330 ; Goopper v. Kinsinger, 89 Oli. St. ■* Goepper v. Kinsinger, 39 Oh. St. 
 
 429; Chambtrlin v. Chaaiberlin, 12 429,443. And see Hay's Appeal, 91 
 
 J. & Sp. (N. Y.) 116. Pa. St. 265. Statements of some of 
 
 1 "Ware y. Owens, 42 Ala. 412; Grif- the partners that it is partnership 
 
 fie V. Maxey, 58 Tex. 210; Theriot v. property were admitted in Winslow 
 
 Michel, 28 La. Ann. 107; Reynolds r. r. Chiffelle, Harp. (S. C;i.) Eq. 25. but 
 
 Ruckman. 35 Mich. 80; Gordon v. held to be mere opinion, especiall}- 
 
 Gordon, 49 id. 501; Hogle v. Lowe, 12 where another, by mortgaging his 
 
 Nev. 280; Deloney v. Hutcheson, 2 share, has treated it otherwise, in 
 
 Rand. (Va.) 183; Moody v. Rathburn, Hogle v. Lowe, 12 Nev. 286. 
 7 Minn. 89. 
 
 282
 
 REAL 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, tlie fact that they became partners 
 in carr\'ing 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. thenndivided two-thirds of real estate 
 owri<'d by him, under agreement to go into partnership Avith 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, 
 tlie other can sue him at law for his share.* 
 
 In Wheatley v. Colhoun, 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- 
 
 iSikesu. Work, 6 Gray, 433. in partnersliip are not partners in 
 
 2 Alexander v. Kiuibro, 49 Miss, the land. Pecot v. Armelin, 21 La. 
 
 529. Ann. 6G7. 
 
 'Coles V. Coles, 15 Johns. 159; 8 & Waterer u Waterer, L. R. 15 Eq. 
 
 Am. Dec. 231. 402, per James. L. J. 
 
 •* Heirs bu.ying lands at a sale of « But see Stewards. Blake way, L. 
 
 the estate and subsequently planting R. 4 Ch. App. 603. 
 
 283
 
 § 289. CONDUCT OF THE BUSINESS. 
 
 nership property, although in the name of one partner, 
 whether it be lancP or even other property, as raih'oad 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 hind to the 
 four, the court said that whether a deed in wliich the grantors 
 were also grantees 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 husi- 
 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 conveys 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 personalt}'' 
 
 1 Ex parte McKenna, 3 DeG. F. & 56 Am. Dec. 253 ; Bergeron v. Rich- 
 
 J. 645; Meiot v. Burnand, 4 Russ. ardott, 55 Wis. 129; Marsh v. Davis, 
 
 247; 2 Bli. N. S. 215. 33 Kan. 326. And the statute of 
 
 ^ Ex parte Hinds, 3 DeG. & Sni. frauds does not apply whether the 
 
 G13 ; and supra, % 261. real estate was put into the new firm 
 
 3McFarland v. Chase, 7 Gray, 462; at its formation or subsequently pur- 
 
 Buch a deed is perfectly good Henry, chased, the title being in the names 
 
 V. Anderson, 77 Ind. 361. of the original partners. Marsh v, 
 
 * Rowley V. Adams, 8 Jur. 994. Davis, 33 Kan. 326. 
 
 sHatchett v. Blanton, 72 Ala. 423. 7 Lincoln v. White, 30 Me. 291. 
 
 6 Andrews v. Brown, 21 Ala. 437; 8 Smith v. Ramsey, 6 111. 373. 
 
 284
 
 REAL ESTATE. § 290. 
 
 apply as between the partners, but as to strangers the 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 mortgage 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.* 
 
 § 2 90. Consequences of conversion — Heirship — Dower. — 
 
 To the extent in which 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, but 
 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, 
 
 iShafer's Appeal, 106 Pa. St. 49; 83; Pennypackeru Leary, 65 id. 220 ; 
 
 Kepler u. Erie Dime Sav. & Loan Co. Thrall v. Crampton, 9 Ben. 218; 16 
 
 101 id. 602; Du Bree v. Albert, 100 Baukr. Reg. 261; Duryea v. Burt, 28 
 
 id. 483; Holt's Appeal, 98 id. 257; Cal. 569; Divine v. Mitchum, 4 B. 
 
 Black's Appeal, 89 id. 201 ; Geddes' Men. 488 (41 Am. Dec. 241) ; Hewitt 
 
 Appeal, 84 id. 482; Appeal of Second v. Sturdevant, 11 id. 458, 459; Bryant 
 
 Nat'l Bk. 83 id. 203; Foster u Barnes, v. Hunter, 6 Bush, 75; Spalding v. 
 
 Slid. 377; Foster's Appeal, 74 id. 391; Wilson, 80 Ky. 589; Burleigh v. 
 
 15 Am. Rep. 553; 3 Am. Law Rec. White, 70 Me. 130; Dyer v. Clark, 5 
 
 230;Meilyr. Wood, 71 id. 488; 10 Met. 562; 39 Am. Dec. 697; Howard w. 
 
 Am. Rep. 719; Jones' Appeal, 70 id. Priest, 5 id. 582; Fall River Whaliug 
 
 169; Ebbert's Appeal, 70 id. 79; Co. v. Borden, 10 Cush. 458, 461 ; Ar- 
 
 Lefevre's Appeal, 69 id. 122; 8 Am. nold v. Wainwright, 6 Minn. 358; 
 
 Rep. 229; McDermot v. Laurence, 7 Dil worth v. Mayfield, 36 Miss. 40; 
 
 S. & R. 438; 10 Am. Dec. 468; Hale Whitney v. Gotten, 53 id. 689; Priest 
 
 V. Henrie, 3 Watts, 143; 27 Am. Dec. v. Chouteau, 85 Mo, 398; Hiscock v. 
 
 289. Phelps, 49 N. Y. 97; Tarbel v. Brad- 
 
 ^ This is sufficiently obvious from ley, 7 Abb. New Cas. 273; Menden- 
 
 the rest of this chapter; neverthe- hall v. Benbow, 84 N. Ca. 646; Beyers 
 
 less, it was specifically ruled in these v. Elliott, 7 Humph. 204; Williams 
 
 cases. Taylor v. Farmer (111.), 4 N. v. Love, 2 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, 292. 
 
 285
 
 g 200. 
 
 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, 21 Ala. 437, 
 442; 56 Am. Dec, 252; Loubat v. 
 Nourse, 5 Fla. 350; Price v. Ilicks, 
 
 14 id. 565 ; Bopp v. Fox, 63 111. 540 ; 
 Simpson v. Leech, 86 111. 286; Trow- 
 bridge u. Cross, 117 id. 109; Matlock 
 V. Matlock, 5 Ind. 403; Hale v. 
 Plummer, 6 id. 121; Huston v. Neil, 
 41 id. 504; Grissom v. Moore, 106 
 Ind. 296; Paige v. Paige (Iowa), 32 
 N. W. Rep. 3G0 ; Galbraith v. Gedge, 
 16 B. Mon. 630 ; Goodburn v. Stevens, 
 1 Md. Ch, 420 ; Dyer v. Clark, 5 Met. 
 .562; 39 Am. Dec. 697; Burnside v. 
 Merrick, 4 id. 537, 544; Wooldridge 
 V. Wilkins, 3 How. (Miss.) 360; Rob- 
 ershaw v. Hanway, 52 Miss. 713; 
 Collins r. Warren, 29 Mo. 236; AVil- 
 let V. Brown, 65 id. 138; 27 Am, 
 Rep. 265 ; Uhler v. Semple, 20 N. J. 
 Eq. 288; Stroud v. Stroud, Phil. (N. 
 Ca.) L. 525; Greene v. Greene, 1 Oh. 
 535; 13 Am. Dec. 642; Sumner v. 
 Hampson, 8 id. 328; 32 Am. Dec. 
 722; Foster's Appeal, 74 Pa, St. 391 ; 
 
 15 Am. Hep. 553; 3 Am. Law Rec. 
 230; Richardson v. Wyatt, 2 Desaus. 
 (S. Ca.)471; Williamson v. Fontain, 
 7 Baxter, 212; Martin v. Smith, 25 
 W. Va. 579 ; In re Ransom, 17 Fed. 
 
 Rep, 331; Conger v. Piatt, 25 Up, 
 Can. Q. B. 277 ; Wylie v. Wylie, 4 
 Grant's Ch. (Up. Can.) 278; Sanborn 
 V. Sanborn, 11 id. 359. Hence the 
 wife of a partner need not join in a 
 mortgage made by the firm, and is 
 not a necessary party to its fore- 
 closure. Huston V. Neil, 41 Ind, 504, 
 But in a suit in which the question 
 of whether land is partnersliip prop- 
 erty or not is to be decided, a wife 
 of one of the partners, claiming the 
 property as homestead, is a neces- 
 sary party. Rhodes v. Williams, 12 
 Nev, 20. The subsequent taking in 
 of a partner by a man owning land, 
 and conveying the property to the 
 firm, does not divest inchoate dower, 
 and if she join in conveying half to 
 the other partner, her inchoate 
 dower in the other half remains. 
 Grissom v. Moore, 106 Ind, 296, But 
 as to laud which is partnersliip prop- 
 erty for the purposes of the partner- 
 ship, a subsequent out and out con- 
 version of it into personalty does 
 not need the consent of the wife. 
 West Hickory Min. Ass'n v. Reed, 
 80 Pa. St. 38, 50, 
 
 286
 
 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 sell 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 tlie claims of the other partners; ^ but if he is such 
 bona fide buyer without notice he is protected.'' 
 
 1 §§ 180, 185. 
 
 2 Cavander v. Bulteel, L. R. 9 Ch. 
 App. 79; Hoxie v. Carr, 1 Sumner, 
 C. C. 173; Frinkv. Branch, 16 Conn. 
 260; Sigourney v. Munn, 7 Conn. 
 324; Dupuy v. Leavenworth, 17 Cal. 
 263; Duryea v. Burt, 28 id. 569; 
 McNeil V. Congregational Soc. 66 id. 
 105; Reeves v. Ayers, 38 111. 418; 
 Whitney v. Gotten, 53 Miss. 689; 
 Divine v. Mitchum, 4 B. Mon. 488 
 (41 Am. Dec. 241); Churchill v. Proc- 
 tor, 31 Minn. 129; Buck v. Winn, 11 
 B. Mon. 320; Flanagan v. Shuck, 82 
 Ky. 617; Arnold v. Wainwright, 6 
 Minn. 358; Priest v. Chouteau, 85 
 Mo. 398; 13 Mo. App. 253; Crow v. 
 Drace, 61 Mo. 225 ; Cowden v. Cairns, 
 28 id. 471; Hogle v. Lowe, 12 Nev. 
 286; Messer v. Messer, 59 N. H. 375 ; 
 Matlackv. James, 13 N. J. Eq. 126; 
 Van Brunt v. Applegate, 44 N. Y. 
 544; Hiscock v. Phelps, 49 N. Y. 97 
 (below, 2 Lans. 106); Tarbel v. Brad- 
 ley, 7 Abb. New Cas. 273; Ross v. 
 Henderson, 77 N. Ca. 170; Miller v. 
 Proctor, 20 Oh. St. 443, 448 ; Bank v. 
 Sawyer, 38 Oh. St. 389 ; Tillinghast 
 V. Champlin, 4 R. I. 173; Boyersu. 
 Elliott, 7 Humph. 204; Fowler v. 
 Bailley, 14 Wis. 125; Bergeron v. 
 Richardott, 55 id. 129; Mason v. Par- 
 
 ker, 16 Grant's Ch. (Up. Can.) 230. 
 In Cottle V. Harrold, 73 Ga. 830, a 
 mortgage by four out of five part- 
 ners was held to convey the tii4e -«f 
 the four; but this is not consistent 
 with the above. It seems to have 
 been thought in Hogle v. Lowe, 12 
 Nev. 286, that a mortgagee of one 
 partner with notice took subject 
 only to existing and not to subse- 
 quent partnership debts. This is not 
 elsewhere the law. See § 185. In 
 Van Brunt v. Applegate, 44 N. Y. 
 544, it was held that a conveyance 
 of his moiety by one partner, in pay- 
 ment of a partnership debt, vested a 
 good title to the moiety in the 
 grantee, and that the grantee did 
 not become a trustee for the firm. 
 Two judges dissented, and the case 
 is perhaps doubted, in Staats v. 
 Bristow, 73 N. Y. 264. And so if one 
 holds the entire title, a mortgage by 
 him, the proceeds of which went to 
 pay partnership debts, was deemed 
 authorized by all, from their having 
 allowed the title to remain in him 
 alone. Cliittenden v. German Amer. 
 Bk. 27 Minn. 143. Where the title 
 of real estate of W., B. and C. was 
 in W., B.'s mortgage of his interest 
 is not an incumbrance as against a 
 
 287
 
 § 292. CONDUCT OF THE BUSINESS. 
 
 Such incumbrauce imposes no actual lien upon the prop- 
 erty, as against a subsequent buyer of the interest of the 
 entire firm for partnersliip 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.' 
 
 § 292. The legal title — Conveyances of it. — Real 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 stocli lins u. Warren, 29 Mo. 236; Blake u. 
 for their shares, Tarbell v. West, 86 Nutter, 19 Me. 16: Cowden r. Cairns, 
 N. Y. 280. In Jones v. 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; Lauffer u Cavett, 87 Pa, St. 479 ; 
 moiety, both in law and equity, giv- Stadler v. Allen, 44 Iowa, 198; and 
 ing the creditor priority over other 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. 
 
 iSeeg 186 and Tarbel v. Bradley, 4 Lawrence v. Taylor, 5 Hill, 107; 
 
 7 Abb. NewCas. 273; Bank v. Saw- Miller v. Proctor, 20 Oh. St, 442, 448 ; 
 yer, 38 Oh, St, 338. But see Tread- Piatt v. Oliver, 3 McLean, 37 (aff'd 
 well V. Williams, 9 Bosw. 649. on other grounds, 3 How, 333); 
 
 2 Hewitt V. Rankin, 41 Iowa, 35; Moreau v, Saffarans, 3 Sneed, 595. 
 Johnson v. Rogers, 15 Bank, Reg, 1, ^ Re Codding, 9 Fed. Rep. 849, And 
 
 3 Page V. Thomas, 43 Oh. St. 38; see Overholt's Appeal, 12 Pa. St, 222; 
 Bryant v. Hunter, 6 Bush, 75; Erwin's Appeal, 39 id. 535, 
 McCauley v. Fulton, 44 Cal, 355; 
 
 288
 
 REAL ESTATK g 292. 
 
 Wliere 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. 2 
 
 In Saga v. Shennan, 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 hable to 
 ibuse 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. Moran v. 
 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- fiim. But an acknowledgment by 
 rick, 16 Ala. 581 ; Grady v. Robinson, one for both before a notary is void, 
 28 id. 289; Gunter v. Williams, 40 Lenimon v. Hutchins, 1 Ohio C. C. 
 id. 561 ; Peine v. Weber, 47 111. 41 ; 388, 891. 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 — 19 289
 
 § 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 p>'0 tanto upon his 
 heirs in trust for the settlement of the partnership. In 
 other words, the jus accresce?^c?^ 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 by 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.'^ 
 
 1 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 ; Abernathy v. road is located must be brought in 
 Moses, 73 id. 381 ; Percifull 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 R. R. 3 Allen, 133. 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 
 Hon. 630 ; Buffum v. Buff um, 49 as such, can maintain it. Percifull 
 Me. 108; Dyer v. Clark, 5 Met. 562 v. Piatt, 36 Ark. 456. 
 (39 Am. Dec. 697) : Howard r. Priest, 2 Shanks v. Klein, 104 U. S. 18; 
 id. 582; 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; KeiCh v. Keith, 
 36 Miss. 40; Whitney v. Cotten, 53 143 Mass. 262; Tillinghast u. Champ- 
 id. 689; Buchan v. Sumner, 2 Barb, lin, 4 R. I. 173; Pugh v. Currie, 5 
 Ch. 165; King v. Weeks, 70 N. Ca. Ala. 446; Andrews v. Brown, 21 id. 
 372; Pierce r. Trigg, 10 Leigh (Va.), 437; 56 Am. Dec. 252; Murphy v. 
 406, and cases under § 390. Hence, Abrams, 50 id. 293; 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 iti 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.^ 
 
 enworth, 17 Cal. 263; Galbraith v. '^McCaskill v. Lancashire, 83 N. 
 
 Gedge, 16 B. Mon. 630; Dilworth v. Ca. 393. 
 
 Mayfield, S6 Miss. 40; Whitney v. ssprague Mfg. Co. v. Hoyt, 29 
 
 Gotten, 53 id. 689 ; Matthews v. Hun- Fed. Ri p. 421 ; Francklyn v. Sprague, 
 
 ter, 67 Mo. 293; Easton v. Court- 121 U. S. 215. 
 
 Wright, 84 id. 27 ; Griffey v. North- 6 Gray v. Palmer, 9 Cal. 616. And 
 
 cutt, 5 Heisk. 746; Pierce v. Trigg, see Han way u. Robertshaw, 4!) Miss. 
 
 10 Leigh (Va.), 406; Conger v. Piatt, 758. In Gray v. Palmer, 9 Cal. 616, 
 
 25 Up. Can. Q. B. 277. it seems that the surviving partner 
 
 1 Lang V. Waring, 25 Ala. 625 ; 60 was allowed to file a bill against the 
 Am. Dec. 533. administrator and heirs to get pos- 
 
 2 McNeil r. Congregational Soc. 66 session of real estate held in the de- 
 Cal. 105; Martin v. Morris, 62 Wis. 418. cedent's name, in order to pay debts 
 
 sCreath v. Smith, 20 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 sale, as if ministrator is necessary, 
 there are no debts, the heirs could 7 Scruggs u. 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, 25 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. Court wright, 84 Mo. 27; Stroud v. 
 
 171; but see §974. Stroud, Phil. (N. Ca.) L. 525; Fos- 
 
 291
 
 § 295. CONDUCT OF THE BUSINESS. 
 
 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 sa,le, 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- 
 
 I 
 
 ter's Appeal, 74 Pa. St. 391, 396; 3 262; Reeves v. Ayers, 38 III. 418; 
 
 Am. Law Rec. 230; 15 Am. Rep. 553. Hiscock v. Phelps, 49 N. Y. 97 (3 
 
 But this is contrary to the principle Lans. 105) ; Miller v. Proctor, 20 Oh. 
 
 that winding up will not be by piece- St. 442, 448 ; Mason v. Parker, 16 
 
 meal, therefore these cases are anom- Grant's Ch. (Up. Can.), 230, and 
 
 alous. §§ 974-977. And contra in cases cited in the succeeding notes. 
 
 Tennessee by statute. Contra in N. Ca. Rossu. Henderson, 
 
 1 Dyer v. Clark, 5 Met. 562 ; 39 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 ci-editors. Lewis u. Anderson, 
 5 Oh. 264; Mendenhall v. Benbow, supra. But see Reeves v. Ayers, 38 
 84 N. Ca. 646. 111. 418. Nor is a judgment creditor 
 
 2 West of England, etc. Bk. v. of one partner a bona fide buyer. 
 Murch, L. R. 23 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, 291. 
 *Dupuy V. Leavenworth, 17 Cal. 
 
 29a
 
 REAL ESTATE. § 295. 
 
 gagee of one of tliem on inquiry.' If the title is in one partner 
 a iDurchaser 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 favor 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 mortgagee 
 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 
 
 iSigourney v. Munn, ^ Conn. 324; N. J. Eq. 334; Bergeron v. Richar- 
 Brewer u. Browne, 68 Ala. 210; Mar- dott, 55 Wis. 129; Hoxie v. Carr, 1 
 tin u. 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 wiiether 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- 
 
 3Matlack u. James, 13 N. J. Eq. nership 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. Baldwins. 393; Reynolds u. Ruckman, 35 id. 
 Johnson, 1 N. J. Eq. 441. 80. And in Frink v. Branch, 16 Conn. 
 
 4 Cavander v. Bulteel, L. R. 9 Ch. 260, 271 ; Forde v. Herron, 4 Munf. 
 App. 79; Duryeau. Burt. 28 Cal. 569; (Va.), 316, and all the Pennsylvania 
 Reeves v. Ayres, 38 111. 418; Divine cases. 
 
 V. Mitchum, 4 B. Mon. 488 (41 Am. « In Parker v. Bowles, 57 N. H. 
 Dec. 241); Buck v. Winn, 11 id. 320, 491 ; and the point was raised but not 
 323 ; Kerr v. Kingsbury, 39 Mich, decided in Cowden v. Cairns, 28 Mo. 
 150; Churchill v. Proctor, 31 Minn. 471, and Bank v. Sawyer, 38 Oh. St. 
 129; Mechanics' Bank v. Godwin, 5 339. 
 
 293
 
 § 206. 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. Conveyances 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 interest of the other partner.^ 
 
 A deed invalid 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.' 
 
 1 Tillinghast v. Champlin, 4 R. I. Percifull v. Piatt, 36 Ark. 456, 404; 
 
 173. 218-220. See Martin v. Morris, Moreau v. Saffarans, 3 Sneed, 595; 
 
 62 Wis. 418. Contra, Oflfutt v. Scott, Lindsay v. Jaffray, 55 Tex. 626, 641 ; 
 
 I 47 Ala. 104. Chavener v. Wood, 2 Oregon, 182. 
 
 -'Tidd V. 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. 'Tidd r. Rines, 26 Minn. 201; 10 
 
 Mitchell, 29 Oh. St. 22, 52. And see Cent. L. J. 102; Douthitt v. Stlnson, 
 
 McMurry v. Fletcher, 24 Kan. 574; 73 Mo. 199; Byam v. Bickford, 140 
 
 28 id. 337. Mass. 31. 
 
 •Arthur v. Weston, 22 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 certiim potest; and probably in 
 all states such a deed or mortgage to or b}'' 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 Brock. 158, a deed was made to 
 Peter lioffman & 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. (Ya.) 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.2 
 
 1 Hoffman v. Porter, 2 Brock. 158; Hunter v. Smith, 14 Wis. 683; Sherry 
 
 Beaman v. "Whitney, 20 Me. 413; v. Gilmore, 58 id. 324. And see 
 
 Lindsay v. Hoke, 21 Ala. 543, 544; Priutup v. Turner, 65 Ga. 71 ; Batty 
 
 Slaughter v. Doe ex d. Swift, 67 id. v. Adams County, 16 Neb. 44. A 
 
 494; Brunsou u. 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; Cliic-ago Lumber Co. v. Ash- and payment of rent for two years, 
 
 worth. 26 Kan. 212; Orr v. How, 55 was enforced as an agreement for a 
 
 Mo. 328 ; Donaldson v. Bank of Cape lease, in Kyle v. Roberts, 6 Leigh 
 
 Fear, 1 Dev. Eq. 103; Hunter v. Mar- (Va.), 495. 
 
 tin, 2 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 I v. Hubbiick, 10 Q. 
 
 Neale, 2 Pat. & H. (Va.) 339, 350; B. D. 473; 13 id. 275. 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 share 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 partnersliip to 
 deal in land, the real estate being a commodity.* Or if by 
 
 ently in Canada, Wylie v. 'Wj'lie, 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 Baukr. L. 525 ; Greene v. Graham, 5 Oh. 264; 
 Eeg. 131 ; Offutt v. Scott, 47 Ala. Rammelsberg v. Mitchell, 29 Oh. St. 
 104; Brewer u Browne, G8 id. 210, 22, 53; Foster's Appeal, 74 Pa. St. 
 213; Espy v. Comer, 76 id. 501; 391; 15 Am. Rep. 553; 3 Am. Law 
 Lenow v. Fones, 48 Ark. 557; Strong Rec. 230; Leaf's Api^eal, 105 Pa, St. 
 V. Lord, 107 III. 25; Hale v. Plum- 505; Bowman u. Bailey, 20 S. Ca. 550 
 mer, 6 Ind. 121 ; 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 -y. Gedge, 16 B. Mon. Griffey v. Northcutt, 5 Heisk. 748 
 630, and Lowe v. Lowe, 13 Bush, 688, Diggs v. Brown, 78 Va. 292 ; Martin 
 limiting intervening cases; Buffum v. Morris. 62 Wis. 418. Contra, see 
 V. Buffum, 49 Me. 108, 110-12; Good- Hoxie v. Carr, 1 Sumner, 173 {die- 
 hum v. Stevens, 5GilI(Md.), 1; s. C. turn). The former contrary rule in 
 1 Md. Ch. 420; Shearer v. Shearer, 98 Kentucky, Buck v. Winn, 11 B. Mon. 
 Mass. 1 07; Wilcox U.Wilcox, 13 Allen, 320; Bank of Louisville v. Hall, 8 
 252; Scruggs v. Blair, 44 Miss. 406; Bush, 676, has been limited by Lowe 
 Holmes v. McGee, 27 Mo. 597; Camp- v. Lowe, 13 Bush, 688. 
 bell V. Campbell, 80 N. J. Eq. 415; 2 Davis v. Christian, 15 Gratt. 11. 
 Buckley v. Buckley, 11 Barb. 43; 3 Galbraith v. Gedge, 16 B. Mon. 
 Buchan v. Sumner, 2 Barb. Ch. 630 ; Ludlow v. Cooper, 4 Oh. St. 1. 
 165; Fuirchild f. Fuirchild, 64 N. Y. Contra, Strong u. Lord, 107 III. 25> 
 471 (aff. 5 Hun, 407) ; Rank v. Grote, Hewitt v. Rankin, 41 Iowa, 35. 
 
 296
 
 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 all 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 Miu. Ass'n v. Reed, 80 lieves it has found the doctrine that 
 id. 38, 50 ; Maddock v. Astbury, 32 will reconcile the American cases. 
 K J. Eq. 181. s Flanagan v. Slmck, 83 Ky. 617, 
 
 2Rammelsberg v. Mitchell, 29 Oh. 620; Lenow v. Fones, 48 Ark. 557, 
 St. 22, 53 (one judge dissenting); Col- 562. In Berry v. Folkes, CO Miss. 576, 
 lumb V. Read, 24 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 Fairchild case in credit, to work and improve it, using 
 64 N. Y. 471, which professes to ap- the profits each year to pay tiie pur- 
 prove it). See, also, Goodburn v. chase price, and, when paid for, to 
 Stevens, 5 GjU, 1 ; and such agree- divide it, was said to be a partner- 
 ment may be implied from the nat- ship, converting land into person- 
 ureand use of the property, Cornwall alty only for a certain time, the 
 V. Cornwall, 6 Bush, 369; Bank of lands being partnership lands so far 
 Louisville v. Hall, 8 id. 672; but as to be bound for debts of the firm, 
 these three cases must be read But when the partnership ends a 
 with Lowe ii. 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. 
 
 297
 
 § 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 selling 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 (24 N. H.), 248 (55 Am. 
 name of partnership real estate in Dec. 234); Shaw v. Farusworth, 108 
 the name of all the partners, with Mass. 357. There are many other 
 the firm's knowledge and acquies- cases where an attempted convey- 
 cence, the firm receiving the avails, ance or incumbrance by one pai'tner 
 was held valid against heirs of a under seal was held or stated obiter 
 subsequently dying partner. to be invalid as against all the part- 
 
 2 §§ 403-105. ners except the signer, on the ground 
 
 3 Robinson V. Crowder, 4 McCord that he could not bind the firm under 
 {S. Ca), L. 519, 536; 17 Am. Dec. seal. These cases, therefore, do not 
 762; Riiffnert'. McCannel, 17111. 212; help us. Such cases will be found 
 63 Am. Dec. 362 ; Lawrence v. Tay- elsewhere ; among 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 u. Mas- 
 Ga. 676; Willey u 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, 2 Nev. 234; thony v. Butler, 13 Pet. 423. The 
 McWhorter u McMahan, 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 natui-e and ob- ora. 
 
 ject of the partnership necessarily 
 
 293
 
 EEAL 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 foi' 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. Surviving partner. — The surviving partner has 
 more than a mere lien to have the propert}" 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 tho buyer is not 
 obliged to see to the application of the purchase money, 
 as such burden would 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. 166(aff'd, 97 111. 303), an express 
 431 ; Chester v. Dickerson, 45 N. Y. power to borrow, granted to one 
 336; 54 id. 1; 13 Am. Rep. 550 (aff. 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. 762 (per Jolmson, J.); such partner as trustee. 
 
 Batty V, Adams County, 16 Neb. 44; 3 Davis v. Christian, 15 Gratt. 11. 
 Baldwin v. Richardson, 33 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 i^ 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. 27; 
 Rep. 553; 3 Am. Law Rec. 230, per 17 Cal. 262; Tillinghast v. Cham- 
 Sharswood, J., to result from the plin, 4 R. I. 173; Griffey v. 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 6 gee Tillinghast v. Champlin, 
 of the entire interest of the firm in supra; Griffey v. NortLcutt, supra. 
 
 299
 
 §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 requires no writmg 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. Abiams, 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. 
 And see § 731. 
 
 2 Dyer v. Clark, 5 Met. 5G2; 39 Am. 
 Dec. 697 ; Cilley v. Huse, 40 N. H. 
 358; Hartnettu. Fegan, 3 Mo. App. 1. 
 
 of frauds, nor on the doctrine of re- 
 sulting trusts, because tlie trust does 
 notarise by implication of law. Par- 
 ker V. Bowles, 57 N. H. 491. Person- 
 ette V. Pryme, 34 N. J. Eq. 26, seems 
 3 Re Farmer, 18 Bankr. Reg. 207 ; to be opposed to this, where two ten- 
 Lyman v. Lyman, 2 Paine, C. C. 11, ants in common of a firm orally 
 22; Causler v. Wharton, 62 Ala. 358; formed a partnership in the land and 
 Scruggs u, Russell, McCahon (Kan. ), its management. Where a partnex'- 
 39 ; Marsh v. Davis, 33 Kan. 326 ; ship orally agreed to extend its deal- 
 Fall River Whaling Co. v. Borden, iugs into real estate, if the land was 
 10 Cush. 458; Sherwood v. St. Paul bought in the names of all, it could 
 «fc Chic. R'y, 21 Minn. 127; Baldwin be shown to be partnership prop- 
 V. Johnson, 1 N. J. Eq. 441; Per- ert}', for this is not inconsistent with 
 sonette v. Pryme, 34 id. 26 ; Fair- the title, but if bought in the name 
 child V. Fairchild, 64 N. Y. 471 (afT. 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. 386; Thompson v. Egbert, 
 8 N. Y. Supreme Ct. 474; Knott v. 
 Knott, 6 Oreg. 142 ; Brooke v. Wash- 
 ington, 8 Gratt. 248; 56 Am. Dec. 
 
 eral of the above cases are directly 
 opposed to the latter proposition. 
 
 4 Smith V. Burnham, 3 Sumn. 435; 
 Bird V. Morrison, 12 Wis. 153 [138]; 
 
 142; McCullyr. McCuUy, 78 Va. 159; York u. Clemens, 41 Iowa, 95; Ever- 
 
 Newton v. Doran, 3 Grant's Ch. (Up. hart's Appeal, 106 Pa. St. 349. Also, 
 
 Can.) 353. Cou^ra, that real prop- Larkins v. Rhodes, 5 Porter, 195, and 
 
 erty not bought vrith 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 liabihfcies 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 recognition of the partnership claim in letters to third per- 
 sons, written transactions, books of account ajicl schedules of prop- 
 erty is suiScient to satisfy the statute.* Third persons are not 
 confined to written proof of the existence of a partnership to deal in 
 
 V. Bullard, 2 La. Ann. 810; Benton v. 
 Roberts, 4 id. 216; Gray v. Palmer, 9 
 Cal. GIG, 639 (a dictum). Question 
 raised but not decided in Fall River 
 Whaling Co. v. Borden, 10 Cusli. 458. 
 That relief will be granted on the 
 ground of a resulting trust if the evi- 
 dence is clear and certain. Larkins v. 
 Rhodes, 5 Porter, 195 ; Piatt v. Oliver, 
 2 McLean, 267. But after sale of the 
 lands, oral proof of an interest in the 
 proceeds on the part of the copart- 
 ners was permitted as being person- 
 alty. Everhart's Appeal, 106 Pa. St. 
 349. And damages for breach of an 
 agreement to contribute a certain 
 share of the capital in an oral part- 
 nership to buy a certain tract was 
 allowed, not being an action to con- 
 vey title or recover price. Meason 
 V. Kaine, 63 Pa. St. 385. And land 
 bought with individual funds and 
 owned by the partners as tenants in 
 common, upon which the partner- 
 ship conducts its business, cannot be 
 subsequently converted into partner- 
 ship personalty without writing; 
 hence partition cannot be defeated 
 by such oral evidence. Alexander v. 
 Kimbro, 49 Miss. 529. 
 iDale V. Hamilton, 5 Hare, 369; 
 
 Essex V. Essex, 20 Beav. 442; Bunnel 
 V. Taintor, 4 Conn. 568; Chester v. 
 Dickerson, 54 N. Y. 1 ; 13 Am. Rep. 
 550 ; 52 Barb. 369 ; Traphagen v. Burt, 
 67 id. 30 ; Williams v. Gillies, 75 id. 
 197, 201 (rev. 13 Hun, 422); Richards 
 V. Grinnell, 63 Iowa, 44 ; 50 Am. Rep. 
 727; Pennybacker v. Leary, 65 id. 
 230; Holmes v. McCray, 51 Ind. 358; 
 19 Am. Rep. 753; Clagett v. Kil- 
 bourne, 1 Black, 346; Hunter v. 
 Whitehead, 42 Mo. 524; Springer v. 
 Cabell, 10 id. 640 ; Harbour v. Reed- 
 ing, 3 Montana, 15. And see Snyder 
 V. Walford, 33 Minn. 175 ; Wormser 
 V. Meyer, 54 How. Pr. 189 ; Bissell v. 
 Harrington, 18 Hun, 81 ; Knott v. 
 Knott, 6 Oregon, 142; Piatt v. Oliver, 
 2 McLean, 267; 3 How. 401 ; Smith v. 
 Tarlton, 2 Barb. Cli. 336. See Carr 
 V. Leavitt, 54 Mich. 540. Contra, 
 Smith V. Burnham, 3 Sumner, 435, 
 458 (this case and Dale v. Hamilton, 
 supra, are the two great leading ad- 
 versary cases on the whole subject) ; 
 Gantt V. Gantt, 6 La. Ann. 677 ; Pecot 
 V. Armelin, 21 id. 667. 
 
 2 See Fall River Whaling Co. v. 
 Borden, 10 Cush. 458; Montague v. 
 Hayes, 10 Gray, 609; Rowland v. 
 Boozer, 10 Ala. 690. 
 
 301
 
 § 302. CONDUCT OF THE BUSINESS. 
 
 real estate to affect the property ; the statute of frauds only applies 
 inter se? 
 
 That a parol agreement by the buyer 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 preseilt class of cases the contract itself purports to 
 be a transfer of interest. 
 
 1 In re Warren, 2 Ware, 323. Directly contra is York v. Clemens, 
 
 2 Henderson v. Hudson, 1 Munf. 41 Iowa, 95 ; Holmes v. McCrary, 51 
 (Va.)510; J?i re Warren, 3 Ware, 322. Ind. 358; 19 Am. Rep. 735. 
 
 303
 
 CHAPTER 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 tbe profit, for otherwise he would be tempted, ii 
 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 customers, 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 would 
 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. 3 Comstock v. Buchauaa, 57 Barb. 
 
 2 Goodwin r. Einstein, 51 How. 127. 
 Pr. 9. 
 
 '303
 
 g 304. CONDUCT OF THE BUSINESS. 
 
 in an auction sale of damaged goods of tlie firm, if one partner 
 purchase it will be deemed as on joint account, and lie 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 to M. individually, does not show the note to be 
 the liability of M. alone.^ 
 
 § JJ04r. In all stages of tlieir 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 with each other they may have the rights of strangers 
 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 133. 
 
 A.'s debts, and made immense prof- 3 Pierce v. Jackson, 21 Cal, 636. 
 
 its. A debt of A. of $800,000 was 4 Yeoman n Lasley, 40 Oh. St. 190; 
 
 compromised at $200,000, and other Hulett v. Fairbanks, 40 id. 233. 
 
 debts in like proportion. Here A. 5 Uhler v. 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. 43, 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. & G. 294 ; 
 
 304
 
 DUTY TO OBSERVE GOOD FAITH. § 305. 
 
 § 305. Buying interests in firm'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 propei'ty.^ 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, tlie renewal must inure to the benefit of all.* 
 
 Clements r. Hall, 2 DeG. & J. 173; Washburn, 23 Vt. 576. And the 
 Warren v. Schainvvald, 63 Cal. 56. same rule applies to the obtaining of 
 Jones V. Dexter, 130 Mass. 3S0 ; 39 any other exclusive use of a right 
 Am. Rep. 459; Beam v. Maconiber, beneficial to the firm, Weston v. 
 33 Mich. 127; Betts v. June, 51 N. Y. Ketcham, 89 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 purcliase of the fee will not be" 
 by which they become debtors of the for the benefit of the heirs. Blatch- 
 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. Laforest, 14 Beav. 250. Macn. & G. 294; Struthers v. Pearce, 
 1 Kinsman v. Farkhurst, 18 How. 51 N. Y. 357; Clements v. Hall, 3 
 289 (of a patent); Eakin v. Shu- De G. (S; J. 173; Alder v. Fouracre, 3 
 maker, 12 Tex. 51 ; Forrer v. Forrer, Swanst. 489. 
 
 29 Graft. 134 (by a surviving part- * Leach v. Leach, 18 Pick. 68; 
 
 ner) ; Gillett v. Gaffney, 3 Colorado, Clegg v. Fishwick, 1 Macn. & G. 294. 
 
 351. The above cases are of pur- ^ Clegg v. Edraoudson, 8 De G. M. 
 
 chases of adverse interests. See, & G. 787, 807. 
 
 also. Burn v. Strong, 14 Grant's Cii. 5 Mitchell v. Rea<l, 61 N. Y. 123; 19 
 
 (Up. Can.) 651; and Wasliburn v. Am. Rep. 2")2 (reversing 81 Barb. 310); 
 Vol. 1 — 20 30.1
 
 § 305. 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 
 partner 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. C. 84 N. Y. 556 (affirming 19 Hun, ored with the utmost industry and 
 
 418). good faith to sell at an advance the 
 
 1 Chittenden v. Witbeck, 50 Mich, joint property in veliich the partners 
 
 401. had a privilege of purchase within a 
 
 2Id. 419, 420. limited time, and after the partner- 
 
 3 Clements V. Hall, 2 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 bis 
 
 * Spiess V. Rosswogg, 10 Jones & copartner. Kayser v. Maugham, 8 
 Sp. 135; 63 How. Pr. 401; Johnson's Colorado, 232; S. C. id, 339. In Ameri- 
 Appeal (Pa. 1837), 8 Atl. R. 36. And can Bank Note Co. v. Edsou, 50 
 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 
 agencies 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. 
 
 806
 
 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 first 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. Competing 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 or fidelity he owes to it, so he must account to the 
 firm for the profits made in it;^ and a managing partner 
 
 1 Phillips V. Eeeder, 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 Laff an v. Naglee, 9 Cal. 662, 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, SON. J. Eq. 254; 
 that he can do so in Anderson v. Bast's Appeal, 70 Pa. St. 301 ; McMa- 
 Lem'on, 8 N. Y. 236 (reversing 4 hon v. McClernan, 10 W. Va. 419; 
 Sandf. 552), was disapproved in Fletcher v. Ingram, 46 Wis. 191; 
 Mitchell V. Read, 61 N. Y. 123, 142, Lockwood v. Beckwith, 6 Mich. 16a 
 
 307
 
 § 306. 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 in 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 " blufi" 
 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- 
 
 ^ Marshall v. Johnson, 33 Ga. 500. 6 Parnell v. Robinson, 58 Ga. 26. 
 
 '■i Lowry v. Cobb, 9 La. Ann. 593. " Pierce v. Daniels, 25 Vt. 624, 634. 
 
 3 Todd V. Rafferty, 30 N. J. Eq. 8 Wheeler u Sage, 1 Wall. 518. See 
 
 254, 256. Dean v. Macdowell, 8Ch. D. 245. 
 
 * Bast's Appeal, 70 Pa. St. 301. 9 Belcher v. Whittemore, 134 Mass. 
 
 ^Glassingtou v. Thvvaites, 1 Sim. & 330. 
 Stu. 124, 132. 
 
 308
 
 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 pm'pose of purcliasing and 
 deahng 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 rewai'd 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 where 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 V. Macdowell, 8 Ch. D. 345. liis own loss. Grant v. Hardy, 33 
 8 Glassington v. Tliwaites, 1 Sim. & Wis. 668; and see Bast's Appeal, 70 
 
 Stu. 134. Pa. St. 301. The copartners can 
 
 *Fawcett v. Whitehouse, 1 Russ. withdraw and recover their capital 
 
 & M. 131 ; Hodge v. Twituhell, 33 if they desire. Short v. Stevenson, 
 
 Minn. 389; Densmore Oil Co. v. supra. But whether they can, with- 
 
 Densmore, 64 Pa. St. 43,50; Shoi't out dissolving, compel repayment of 
 
 t-. Stevenson, 63 Pa. St. 95; Emery the excess, see Faulds v. Yates, 
 
 V. Parrott, 107 Mass. 95; Duulop v. supra. A person with whom the 
 
 Richards, 2 E. D. Smith, 181 ; Grant wrong-doer goes into partnership to 
 
 V. Hardy, 33 Wis. 668 ; Faulds v. assist in effecting the scheme, if cog- 
 
 Yates, 57 111. 416; Delmonico v. nizant of the improper conduct, is 
 
 Roundebush, 2 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 try v. Parrott, 107 Mass. 95. 
 third person, and therefore does not & Freck v. Blakiston, S3 Pa. St. 
 
 realize the whole, will not relieve 474. 
 
 309
 
 § 309. CONDUCT OF THE BUSINESS. 
 
 his copartner by suppressing information or concealing facts 
 which the latter was entitled to know. 
 
 In Cassels v. Stewart, L. R. 6 App. Cas. 64, it was so ruled even 
 thongh 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 u. Cox, 3 Hay. (Tenn.)79, 3 s. p. Brigham v. Daua, 29 Vt. 1; 
 one bought out the other at an unrea- Stephens v. Orman, 10 Fla. 9; Hop- 
 tionable price by getting him drunk, kins v. Watt, 13 111. 298; Sexton v. 
 and the court required an accounting. Sexton, 9 Gratt. 204. 
 
 2 Affirmed without opinion in 2 < Clements v. Hall, 2 De G. & J. 
 Myl. (fe K. 279. 173. 
 
 310
 
 DUTY TO OBSERVE GOOD FAITH. g 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. c. 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 buy 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 to a 
 person who was secretly buying for the other partner for $28,000, 
 when it was worth $34,000, 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 so in Heath v. Waters, 40 between 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
 
 g 311. CONDUCT OF THE BUSINESS, 
 
 § 310. A partner who purchases the interest of another 
 partner, in this case in a mine, without tlie knowledge of 
 his copartners, violates no trust or confidence towards his 
 other partners merely 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. Scliainwald, 62 Cal. 56, certain partners proposed 
 to buy out the interest of a deceased partner, but were prevented 
 from doinof 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 the outlay. 
 But in Bissell v. Foss, supra,^ nearl}" 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.'' 
 
 § 31 1. 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. 120, it was said that 
 § 743. one partner could buy at a slierififs 
 
 1 Bissell V. Foss, 114 U. S. 252 (aff'g sale on execution levied on the inter- 
 B. C. sub. nom. First Nat'l B'k r. 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, Blaylock's Appeal, Cal. 119, it was held that one partner 
 73 Pa. St. 146. engaged in settling up after dissolu- 
 
 s Lamar v. Hale, 79 Va. 147, 158 ; S. P. tion could buy a judgment rendered 
 Farmer v. Samuel, 4 Litt. (Ky.) 187; against his copartner and enf.jrce it 
 14 Am. Dec. 106 ; Evans v. Gibson, 29 by levy and sale of the debtor's inter- 
 Mo. 223. 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 
 
 312
 
 DUTY TO OBSERVE GOOD FAITH. § 312. 
 
 injy on tlie firm's deposit, the sale will be set aside and will not be 
 even a dissolution.' And so, if he has in his hands more money of 
 the firm than the amount of the judgments, unless the other part- 
 ner choose to insist on the sale.* Certainly, if there is the least 
 collusion or procurement of the forced sale by the buying partner 
 io 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, under 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 was 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. he was on tliis account compelled to 
 
 2 Bradbury v. Barnes, 19 Cal. 120. carry out his promise. In Perens v. 
 See, also, Hulett v. Fairbanks, 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, iu order to buy 3 Pierce v. Daniels, 25 Vt. 624. 
 
 up the forfeited rights himself. And < Renton v. Cliaplin, 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 iu his posses- about by the other for that purpose. 
 
 Bion, bought up a claim against his Amsinck v. Bean, 22 Wall. 395. 
 
 copartner for twenty-five cents on » Wilson r. 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. eReiUy 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 274. 
 
 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. Tatliem, 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. 
 
 § 81.3. 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 hi3 
 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 vi^ill be against him; he may be charged 
 vv^ith 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 bekeptattho 
 place of business, and though their removal witliout con- 
 
 1 Lowry v. Cobb, 9 La. Ann. 593. they been kept as they ought to havo 
 
 2 On the general duty to keep ac- been." Godfreys Wliite, 43 Mich, 
 counts, see Goodman u Whitcorab, 171,174. And in other cases the court 
 1 Jac. & W. 589, 593; Kowe 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 tlie bill and di- 
 V. Sherman, 16 Fla. 99. The im- vide the costs. Vermillion v. Bailey, 
 portance of keeping proper books ia 27 111. 230. And may do this rather 
 too obvious to need argument or than grope in darkness in under- 
 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, 37 Ark. 308. 
 tied by the partnership books, had * See § 765. i 
 
 314
 
 DUTY TO OBSERVE GOOD FAITH. g 314. 
 
 sent of a partner is not ground for dissolution and receiver,' 
 it is ground for injunction.'^ 
 
 In Greatrex v. Greatrex, 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 back, 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 called 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 obligai 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 eoiitract 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 i'. Whitcomb, 1 Jac, & case, Ward v. Apprice, 6 Mod. 264, 
 W. 589, 593. has held that a court of law could 
 
 2 Charlton v. Poulter, cited in note not enforce a partner's riglit to have 
 to Norway v. Rowe, 19 Ves. 144, 149; the books producedat atrial between 
 Greatrex v. Greatrex, 1 DeG. & S. the partners. 
 
 692; Taylor u Davis, cited in note to * Turner v. Bayley, 34 Beav. 105, 
 
 Whittaker v. Howe, 3 Beav. 383, 388, aflfg. s. C. as Turney v. Bayley, 4 
 
 where, however, there was an ex- DeG. J. & S. 332. 
 
 press stipulation in the articles. 5 Toulmin v. Copland, 3 Y. & C. Ex. 
 
 s Stuart V. Lord Bute, 12 Sim. 460; 625, 600-1. 
 
 Taylor v. Rundell, 1 Ph. 222 (aflfg. 6 Freeman v. Fairlie, 3 Mer. 34, 43. 
 1 Y. & C. C. C. 128.) An antiquated 
 
 315
 
 CHAPTER V. 
 
 IMPLIED POWERS OF 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 is 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 may 
 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, 2 B. & P. 838; Christy, 17 lowt., S33. And see Mar- 
 Gillow V. Lillie, 1 Bing. N. C. 695; lett v. Jackmau, 8 Allen, 287, 291; 
 Terrell v. Ilurst, 76 Ala. 588; Shaw Snow r. Howarn, 35 Barb. 55; Mar- 
 V. State, 56 Intl. 188 ; Ryerson v. via v. Wilber, 52 N. Y. 270. 
 Hendrie, 22 Iowa, 480 ; Sherman v. 
 
 316
 
 IMPLIED POWERS OF EACH PARTNER. § 310. 
 
 of the business, measured by the nature of the business, the 
 usages of those engaged in the same, occupation in the same 
 locaUty, and subject to be enlarged also by the known habits 
 and conduct of the particular 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 affect his 
 powers.* 
 
 § 316. IS^ature 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 hulless 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 
 believing the business included the sale of hogs on commission can 
 hold the firm on a contract Avith a partner who received his hogs 
 to sell on commission and failed to account for the proceeds.* 
 
 In Maltby v. Northwestern Va. R. R. Co. 16 Md. 422, where the 
 
 » Barker v. Mann, 5 Biiyh, 672; <McNeish v. Hulless Oat Co. 57 
 
 Sweet V. Morrison, 103 N. Y. 2::^5; Vt. 316. 
 
 Morans v. Armstrong, Arms. M. & 5 Jackson v. Todd, 56 Ind. 406, and 
 
 O. Irish N. P. Rep. 25. Todd v. Jackson, 75 id. 272; but 
 
 2Hoskiason v. Eliot, 62 Pa. St. 393. there was proof that the other part- 
 
 * Kennedy v. Kennedy, 3 Dana, 23!». nera were aware of the contract. 
 
 317
 
 §317. 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 extend 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 take notice of 
 this fact.' Almost all partnerships are, in one sense, par- 
 ticular partnerships. It is very rare that more than one 
 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 
 
 1 And if specially authorized the How. (Miss.) 422; 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. Y. 454. And if not Eraser v. McLeod. 8 Grant's Ch. (Up. 
 authorized the signer is himself lia- Can.) 2G8. Scope was said to be a 
 ble. Union Hotel Co. v. Hersee, question of law in Banner Tobacco 
 supra. Co. v. Jenisou, 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 Md. 
 505; U. S. Bank v. Binuey, 5 Mason, 406. 
 
 176; Thompson v. Head, 2 Ind. 245; < Livingston r. Roosevelt, 4 Johns 
 Wayne v. Clay, 1 A. K. Mar. 257; 251, 277 (4 Am. Dec. 273); Waldenv. 
 Maltby v. Nortli western Va. R. R. Sherburne, 15 id. 409, 423. 
 Co. 16 Md. 422; Goode v. Linecum, 1 
 
 318
 
 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 oflBce 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 l" Lawrence v. Dale, 3 Johns. Ch. 
 as all acts beyond such limits may 23. 
 
 be binding by express authority or li Humes t;. O'Bryan, 74 Ala. 64, 82. 
 
 subsequent ratification, or known 12 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.), 2o4. tion of the partner, had bought new 
 
 5 Irwin u Williar, 110 U. S. 499. goods to replenish the stock and 
 * Waller v. Keyes, 6 Vt. 257. did business in the name of the 
 8 Board man v. Adams, 5 Iowa, 224. firm, and it was held that slight 
 
 6 Rimel v. Hayes, 83 Mo. 200. circumstances, such as not dissent- 
 
 7 Wells V. Turner, 16 Md. 133. ing, would be sufficient to show rati- 
 
 8 Freeman v. Bloomfield, 43 Mo. fication. 
 
 891. 13 Roberts' Appeal, 92 Pa. St. 407. 
 
 •Taylor v. Webster, 39 N. J. L. 102. i< Goodman v. White," 25 Miss. 163 
 
 319
 
 § 318. CONDUCT OF THE BUSINESS, 
 
 nor of a sugar refining firm to give a note for brandy,' tliongli 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, F., one of a firm to ship and sell cotton, be- 
 ing on a tradiug 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 F. 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 without 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 Avitli 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 firms. — The usages of those en- 
 gaged ill 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 powders 
 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 r. Duncan, 45 Miss. 48; Hutch- 
 251; 4 Am. Dec. 273. ius v. Gilman, 9 N. H. 359. 
 
 2 Augusta Wine Co. v. Weippert, *Hatheway's Appeal, 53 Mich. 113. 
 14 Mo. App. 483. 5 Eiustman v. Black, 14 111. App. 
 
 sPickels V. McPherson, 59 Miss. 381. 
 216; Hogan v. Reynolds, 8 Ala. 59; 
 
 320
 
 IMPLIED POWERS OF EACH PARTNER. §310. 
 
 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 tlie same 
 business in the locality are competent to sliow 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 boatiug 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 sufficiently 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 all 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 Bail. (S. 
 Irwin V. Williar, 110 U. S. 499; Ca.) L. 553. 
 
 Pierce v. Jaruagin, 5 Miss. 107. 6 Nichols v. Hughes, 2 Bail. (S. Ca.) 
 
 2 Galloway u. Hughes, 1 Bail. (S.Ca.) L. 109. 
 
 L. 553, 5G3. " Prince v. Crawford, 50 Miss. 344. 
 
 3 Per Matthews, J., in Irwin v. 8 Waller u. Keyes, 6 Vt. 257, 264; 
 Williar, 110 Mass. 499. Kelton v. Leonard, 54 id. 230; 
 
 < Waring v. Grady, 49 Ala. 465. McNeish v. Hulless 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 buy 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 what 
 is necessary to carry on the business in the ordinary way. 
 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, 2 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. Gilders, 8 Ala. 536, 546. g 211. 
 
 2 Id. * Fraser v. McLeod, 8 Grant's Ch. 
 sPahlman v. Taylor, 75 111. 629; (Up. Can.) 268. 
 
 Folk V. Wilson, 21 Md. 538; Hamil- 5 Boardman v. Adams, 5 Iowa, 224; 
 
 ton v. Phoenix Ins. Co. 106 Mass. Williar v. Irwin, 11 Biss. 57 (reversed 
 
 395; Holt v. Simmons, 16 Mo. App. on other points in 110 U. S. 499). 
 
 97 ; McGregor v. Cleveland, 5 Wend. « Ala. Fertilizer Co. v. Reynolds, 79 
 
 477 ; Hoskisson v. Eliot, 62 Pa. St, Ala. 497. 
 
 393 ; Lee v. Macdonald, 6 Up. Can. 7 See Ricketts v. Bennett, 4 C. B. 
 
 Q. B. (Old Ser.) 130. Restrictions 686 ; Berry v. Folkes, 60 Miss. 576, 609. 
 
 323
 
 IMPLIED POWERS OF EACH PARTNER. § 32 ^. 
 
 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.^ 
 
 Ill 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 Avill that the partnership continue. The plantation was 
 going to waste, and the surviving partner, with the assent of the 
 administrator and widow, to save it, made a contract with H., by 
 which II. 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 the 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, 3 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, 12 Pick. 430, abstracted in 
 of loans to obtain money to pay ar- the next section. Arnold v. Brown, 
 rears of wages, for which distress 24 Pick. 89; 35 Am. Dec. 296; 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. 
 
 823
 
 §321. CONDUCT OF THE BUSINESS. 
 
 powers of tlio other.' So where partners iii the business of bu3'ing 
 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 allowing 
 liis 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 convenient 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, 12 Mass. 54, 56; 5 Cotzliausen v. Judd, 43 Wis. 213; 
 7 Am. Dec. 31 ; Forkner v. Stuart, 6 28 Am. Rep, 539. 
 
 Gratt. 197. , 6 Eaton v. Whitcomb, 17 Vt. 641. 
 
 2 Jordan v. Miller, 75 Va. 442. ^ Brettel v. Williams, 4 Exch, 623. 
 » Thomas V. Harding, 8 Me. 417. 8 Moore v. Stevens, 60 Miss. 809; 
 < Walcott V. Canfield, 3 Conn. 194. Russell v. Annable, 109 Mass. 72. 
 
 824
 
 IMPLIED POWERS OF EACH PARTNER. § 321. 
 
 plovierl the goods from plaintiff, and thereupon M. promised plaint- 
 iff that if he would sue the replevying creditors, instead of the 
 assignee, the firm of K. & M., being interested in sustaining the 
 assignee's title, would indemnify him against 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 bound.'' 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. 529), 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 flour, for the price of which the note 
 sued on was given. It was held proper to instruct the jury that 
 this purchase jJ^iina facie 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, 28 Up. Can. C. * See Hodges v. Ninth Nat. Bk. 54 
 P. 00. Md. 406, where a somewhat similar 
 
 2 Barnard v. Lapeer, 6 Mich. 274. question was left to the jury. 
 •Roberts' Appeal, 92 Pa. St. 407. 
 
 825
 
 § 322. CONDUCT OF THE BUSINESS. 
 
 Winsliip acted bona jide and iu the exercise of a reasonable discre- 
 tion, lie 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. 
 
 §32:3. Restrictions in the articles not binding on tliird 
 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. Binuey, 5 Mason, 176; 499, 507; Prince v. Crawford, 50 id. 
 Wiuship V. Bank of U. S. 5 Pet. 529; 344; Bloom v. Helm, 53 id. 21 ; Pierce 
 Kimbro v. Bullitt, 22 How. 25G, v. Jarnagin, 57 id. 107, 111; Lynchu. 
 266; Micliigan Ins. Bank v. Eldred, Thompson, 61 id. 354; Cargill v. 
 9 Wall. 544; Andrews v. Congar Corby, 15 Mo. 425; Lomme v. Kint- 
 (Supreme Ct. U. S. 1881), 20 Am. zing, 1 Montana, 290; Bromley v. 
 Law Reg. (N. S.), 328; S. C. Lawyers' Elliot, ^38 N. H. 287, 302; Elliot 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. 4G6; Ala. Fertilizer 56 id. 495; Bank of Rochester u Mon- 
 Co. V. Reynolds, 79 id. 497; Manville teath, 1 Den. 402; 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. Ha n ford, 1 
 Dec. 13; Everitt v. Chapman, 6 E. D. Smith, 540; Nat'l Union Bk. t?. 
 Conn. 347 ; Butler V. American Toy Landon, 66 Barb. 189 (affd. on other 
 Co. 46 Conn. 136; Pursley v. Ram- points, 45 N. Y. 410); Sage u. Thomas, 
 sey, 31 Ga. 403; Stark v. Corey, 45 2 N. Y. 417, 426-7; Seybold v. Green- 
 Ill. 431 ; Devin v. Harris, 3 G. Greene wald, 1 Disney, 425; Benninger v. 
 (Iowa), 186; Medberry v. Soper, 17 Hess, 41 Oh. St. 64; Tillier v. White- 
 Kan. 369 ; Miller v. Hughes, 1 A. K. head, 1 Dall. 269; Churcliman v. 
 , Mar. (Ky.) 181; Bank of Ky. v. Smith, 6 Whart. 146; Hoskisson v. 
 Brooking, 2 Litt. 41; Barker v. Mann, Eliot, 62 Pa. St. 393; Nichols V. 
 5 Bush, 672 ; Williams v. Rogers, 14 Cheairs. 4 Sneed, 229 ; Coons v. Ren- 
 Bush, 77(i; White u Kearney, 2 La. ick, 11 Tex. 134, 138; Waller v. 
 Ann. 63!i ; Maltby u. Northwestern Va. Keyes, 6 Vt. 257, 264 ; Barrett v. Rus- 
 R. R. 16 Md. 422; Brent v. Davis, 9 Md. sell, 45 id. 43 ; Kelton v. Leonard, 54 
 217.; Taylor v. Hill, 36 id. 494, 501; id. 230; McNeish v. Hulless Oat Co. 
 Stimson v. Whitney, 130 Mass. 591; 57 id. 316. 
 Perry r. Randolph, 6 Sm. & Mar. 
 
 326
 
 IMPLIED POWERS OF EACH PAPtTNER. g 32S. 
 
 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- 
 €iples 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 
 
 lAlderson v. Pope, 1 Camp, 404; 490; Hastings v. Hopkinson, 28 Vt. 
 
 Ex parte B-oldsworih, 1 M. D. & D. 108; Chapman v. Devereux, 82 id. 
 
 475; N. Y. 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. 29; Radcliffe v. Varnev, 55 id. P. 31. And see further §§ 825, 326. 
 
 427; Knox v. Bufifington, 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 u Davis, 9 Md. 217; Bailey u. hold the firm on a receipt in its 
 
 Clark, 6 Pick. 372; 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. 122; Pollock v. Will- 2 Cargill u. Corby, 15Mo. 425; Wil- 
 
 iams, 42 id. 88; Cargill v. Corby, 15 son v. Richards, 28 Minn. 337. See 
 
 Mo. 425; Nolan v. Lovelock, 1 Mon- Guice v. Thornton. 76 Ala. 466. 
 
 tana, 224; Dow v. Say ward, 12 N. H. 3 Wilson v. Richards, supra. 
 
 271, 275; Bromley v. EU'ot, 38 id. < Radcliflfe t;. Varner, 55 Ga. 427; 
 
 •287, 303; Ensign u Wands, 1 Johns. Williams v. Barnett, 10 Kan. 455; 
 
 Cas. 171 ; Gram v. Cadwell, 5 Cow. Antliony v. Wheatons, 7 R. I. 490. 
 
 489; Mason v. Partridge, 66 N. Y. And see Ensign v. Wands, 1 Johns. 
 
 633; Baxter v. Clark, 4 Iredell L. Cas. 171; Ciiapman v. Devereux, 33 
 
 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; Wiliiams v. Rogers, 14 
 
 selling on credit, and a custom tliat Bush, 776; Perrj v. Randolph, 6 Sm. 
 
 thirty days' time is the same as cash & Mar. 335. 
 
 was held void. 3 Kent v. Chapman, 18 VV. Va. 485. 
 
 lUrquhart v. Powell, 54 Ga. 29; < Johnson v. Bernheim, 76 N. Ca. 
 
 Radcliffe v. Varner, 55 id. 427; Dow 139, and s. C. Johnston v. Bernheim, 
 
 V. Say ward, 12 N. H. 271, 275; 88 id. 339; Hotchin v. Kent, 8 Mich, 
 
 Lynch v. Thompson, 61 Miss. 354; 
 Miller v. Hughes, 1 A. K. Mar. 181 ; 
 Frost V. Hanford, 1 E. D. Smith, 
 540; Pollock v. Williams, 42 Miss. 
 
 526. In the latter case it was held 
 that the reception of the goods by 
 the guilty partner, who was man- 
 ager, is not a ratification, because 
 
 88, where a contractor knew that he could not ratify his own wrong, 
 one partner was to furnish tlie labor and the other partners may have 
 
 at his own expense. 
 
 2 Butler V. American Toy Co. 46 
 Conn. 136; Nichols v. Cheairs, 4 
 Sneed, 229; Mason v. Partridge, 66 
 N. Y. 633; Lomme v. Kintzing, 1 
 Montana, 290. See Greenwood's 
 
 thought the goods were paid for. 
 Sir N. Lindley, in his admirable 
 work on Partnership, p, 332, sug- 
 gests the ingenious distinction tiiat 
 notice of a stipulation between 
 partners, that one or all shall not 
 
 Case, 3 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 auswer- 
 P, New Rep. 510, But if the agree- able for the acts of a member be- 
 nient 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 Englisli 
 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 u. Howard, 7 Dana, 367; cases above given, however, seem to 
 Ala. Fertilizer Co. v. Reynolds, 79 exclude this distinction. 
 
 328
 
 IMPLIED POWERS OF EACH PARTNER. § 325. 
 
 part of the person dealing with a partner, such proof may 
 be circumstantial, as from pubhcation of the objects of the 
 partnershiiD, 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 thera.^ 
 
 It has been held that merely telling a third person that 
 one has ceased to be a partner, but that his name is to con- 
 tinue for a certain time, 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 eqnal 
 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. 303. And see Wagner v. Freschl, 56 
 251 ; 4 Am. Dec. 273. Though id. 495. 
 
 merely constructive or implied no- 5 chapman t?. Devereux, 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. Dec. 286 (rev. s. c. 5 
 
 dissolution. Devin v. Harris, 3 G. Johns. Ch. 351). 
 
 Gr. (Iowa) 186. ^ Hastings v. Hopkinson, 28 Vt. 
 
 2 Anthony v. Wheatons, 7 R. I. 490. 108. 
 
 STilford v. Ramsey, 37 Mo. 563, vjd. 117; Bogart u. Brown, 5 Pick. 
 566. 18. 
 
 < Bromley v. Elliot, 38 N. H. 287, 8 Brown v. Leonard, 2 Chit. 120. 
 
 329
 
 g 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 
 imi^lied powers of a partner, and not of those given by ex- 
 press contract in the articles, as to which the only reroca- 
 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 be 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 Stavk. 164; 7 Colorado, 521. Contra, see Graser 
 
 Galwayr. Mathew, 10 East, 2(i4; s. c. v. Stellwagen, 25 N. Y. 315, and 
 
 as Galvvay v. Matthew, 1 Camp. 403; Campbell v. Bovven, 49 Ga. 417. 
 
 Rooth V. Quiu, 7 Price, 198; Winnet 2 Tyler v. Scott, 45 Vt. 261; Sea- 
 
 V. Whitney, 5 Bro. P. C. 489; Anon, man v. Ascherman, 57 Wis. 517, 553. 
 
 V. Layfield, 1 Salk. 291; Griawold v. See Cannon V. Wildmann, 28 Conn. 
 
 Waddington, 16 Johns. 438, 491; 472,493. 
 
 Yeager U.Wallace, 57 Pa. St. 365; Matthews v. Dare, 20 Md. 248; 
 
 Williams v. Roberts, 6 Coldw. 493; Leavitt v. Peck, 3 Conn. 124; 8 Am. 
 
 Monroe v. Conner, 15 Me. 178; 32 Dec. 157. See Brown v. Leonard, 2 
 
 Am. Dec. 148; Matthews v. Dare, 20 Chit. 120, noticed under t^ 324. 
 
 Md. 248; Knox v. Buffington, 50 < Monroe v. Conner, 15 Me. 178; 32 
 
 Iowa. 320; Tyler v. Scott, 45 Vt. 201 ; Am. Dec. 148. See Hotchin v. Kent, 
 
 Hastings v. Hopkinson, 28 id. 108, 8 Mich. 520, noticed under g 323. 
 
 117; Leavitt u. Peck, 3 Conn. 124; 8 5 Campbell v. Bowen, 49 Ga. 417; 
 
 Am. Dec. 157; Noyes v. N. Haven, Johnson v. Bernheim, 70 N. Ca. 139; 
 
 etc. R. R. 30 id. *1, 14; Bowen v. s. c. as Johnston v. Bernheim, 86 id. 
 
 Clark, 1 Biss. 128, 133; Bull u. Harris, 339. Contra, Galvvay 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 disseut.— 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 no 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, K, 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 
 227. See §g 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, 
 helm, 76 N. Ca. 139, where one part- 24 III. 153; Steele v. First Nat'l B'k, 
 ner in a firm of two had power to 60 111. 23 ; Carlisle v. Niagara Dock 
 purchase either 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- 
 hmit this by notice forbidding pur- ment to the other. And see Cannon 
 chases on time ; or, vice versa, if one v. Wildmau, 28 Conn. 472, 493. 
 offer to buy for cash, he cannot re- 
 
 331
 
 g 327. CONDUCT OF THE BUSINESS. 
 
 the transaction was a fraud, for E. may liave been entitled to tlie 
 whole. 
 
 In Ayer v. Ayer, 41 Yt. 3i6, one partner placed the accounts in 
 the hands of an attorney, and absconded. 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 parLuer, 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 ef&eacy to the attorney's unauthorized act. 
 
 In Wilkins v. Pearce, 5 Den. oil, 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 tradiiij; 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 somewliat too narrow, for among trading partnerships, 
 as we shall 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.^ But 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 
 
 1 The case was affirmed but on fokd, J., in Kimbro v, Bullitt, 23 
 other grounds in Pearce v. Wilkins, How. 256; Holt v. Simmons, 16 Mo. 
 2 N. Y. 400. App. 97: Piiikerton 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- 
 
 332
 
 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. 
 
 § 328. For example, the following have been held to be 
 trading partnerships involving the power to bori^ow 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." 
 
 1 Smith V. Collins, 115 Mass. 388. 12 McGregor v. Cleveland, 5 Wend. 
 
 2 Gano V. Samuel, 14 Oh. 592. 477 (dictum). 
 
 3 Wagner v. Simmons, 61 Ala. 143. 13 Copley v. Lawhead, 11 La. Ann. 
 
 4 Dow V. Moore, 47 N. H. 419. 615. 
 
 .5 Walsh V. Lenuon, 98 111. 27; 38 14 Kimbro v. Bullitt, 22 How. 256. 
 
 Am. Rep. 75. See Johnston v. Dutton, 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, 3 
 
 LIndh V. Crowley, 29 Kan. 756. Fla. 32; 48 Am. Dec. 173. 
 
 sWinship v. Bank of U. S. 5 Pet. 15 Ah Lep u. Gong Choy, 13 Oregon, 
 
 529 ; Deitz v. Regnier, 27 Kan. 94. 205. 
 
 9 Hoskisson v. Eliot, 63 Pa. St. 393. I6 Palmer v. Scott, 68 Ala. 380. 
 
 10 Holt V. Simmons, 16 Mo. App. 97. i^ Feurt v. Brown, 23 Mo. App. 332. 
 
 11 Cowand v. Pulley, 11 La. Ann. 1. is Twibill v. Perkins, 8 La. Ann. 133. 
 
 333
 
 § 329. CONDUCT OF THE BUSINESS. 
 
 Pork packers;' tannery and finisliing-sliop.* 
 Whether wharfigers and forwarders constitute a trading partner- 
 ship is a question which has been raised but not decided.' 
 
 § 329. Non-trading firms. — On the other hand the follow- 
 ing have heen 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.* 
 
 Attorneijs or solicitors do not constitute a trading firm, and one 
 has no implied authority to bind the firm by note.* 
 
 Brokers, 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.* 
 
 1 Benninger v. Hess, 41 Oh. St. 64. Am. Rep. 733 ; Smith v. Sloan, 37 
 
 2Stimson v. Whitney, 130 Mass. Wis. 285; 19 Am. Rep. 757; Work- 
 
 591. Contra, Newell v. Smith, 23 man v. McKinstry, 21 Up. Can. Q. B. 
 
 Ga. 110 (dictum). 623, 625; Wilson v. Brown, 6 Ont. 
 
 3 Roth V. Colvin, 32 Vt. 125, 132; App. 411. 
 
 Van Brunt v. Mather, 43 Iowa, 503. 6 First Natl. Bk. v. Snyder, 10 Mo. 
 
 ^Thicknesse v. Bromilow, 2 Cr. & App. 211. 
 
 J. 425; Channell, B., in Brown v. ^McCord v. Field. 27 Up. Can. C. 
 
 Kidger, 3 H. & N. 858, 859; Decker P. 391. See Gavin v. Walker, 14 
 
 V. Howell, 42Cal. 636. Lea (Tenn.), 643; and Roberts' Ap- 
 
 5 Levy V. Pyne, Car. & M. 453 ; peal, 92 Pa. St. 407. 
 
 Harman u Johnson, 2 E. «fe B. 61 8 Greenslade v. Dower, 7 B. & C. 
 
 (rev. s. C. 3 Car. & K. 272); Garland 635; 1 Man. & Ry. 640; Brown v. 
 
 V. Jacomb, L. R. 8 Ex. 218 ; Hedley u Byers, 16 M. & W. 252; Kimbro v. 
 
 Bainbridge, 3 Q. B. 316; Forster v. Bullitt, 22 How. 256, 267; McCrary 
 
 Mackreth, L. R. 2 Ex. 163 ; Friend v. Slaughter, 58 Ala. 230 ; Ulery v. 
 
 V. Duryee, 17 Fla. Ill; 35 Am. Rep. Ginrich, 57 111. 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, Chapin, 
 
 Marsh v. Gold, 2 Pick. 285; Pooley 6 Lans. 139; Pooley v. Whitmore, 10 
 
 V. Whitmore, 10 Heisk. 629, 636; 27 Ileisk. 629, 636; 27 Am. Rep. 733. 
 
 334
 
 IMPLIED POWERS OF EACH PARTNER. 
 
 §329. 
 
 Mining or quarrijing partnerships are not in a trading business, 
 and a partner has prima facie no authority to bind the concern on 
 mercantile paper.' 
 
 Livery-stahle} 
 
 Potter II tvare manufacturers cannot make notes.' 
 
 Printinrj establishment.* 
 
 Be<d 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. 
 128; Brown v. Kidger, 3 H. & N. 
 853; Skillman v. Lachman, 23 Cal. 
 199; Jones v. Clark, 42 id. 180; 
 Decker v. Howell, 42 id. 636; Charles 
 V. Eshelman, 5 Colorado, 107; Man- 
 ville V. Parks, 7 id. 128; Higgins v. 
 Armstrong (Col. 1886), 10 Pac. Rep. 
 232; Judge v. Braswell, 13 Bush, 67; 
 26 Am. Rep. 185; Shaw v. McGreg- 
 ory, 105 Mass. 96, 102, a quarrying 
 firm ; Pooley v. Whitmore, 10 Heisk. 
 629, 636 ; 27 Am. Rep. 733. 
 
 2 Hickman v. Kunkle, 27 Mo. 401, 
 404 (overruled on other points by 
 Deardorf v. Thacher, 78 id. 128); 
 Lev: V. Latham, 15 Neb. 509; 48 Am. 
 Rep. 361. 
 
 3 Bradley v. Linn, 19 111. App. 323. 
 *Bays V. Conner, 105 Ind. 415. 
 
 Contra, Porter v. White, 39 Md. 613. 
 5 Deardorf r. Thacher, 78 Mo. 128; 
 47 Am. Rep. 95. In Freeman v. 
 Carpenter, 17 Wis. 126, a partnership 
 " in the general business of land 
 
 agents, money and commission brok- 
 ers," where the articles provided for 
 paying interest on any excess of the 
 agreed cash capital furnished by one 
 partner, and securities for money 
 were to be approved by all, and no 
 funds were to be drawn out, unless 
 there is sufficient to meet liabilities, 
 these provisions were held to show 
 more than a mere brokerage busi- 
 ness, but that the facts of funds, a 
 cash capital and loans of money im- 
 ply a power in each to borrow on the 
 credit of the firm, especially as the 
 business of making loans may fre- 
 quently require a borrowing. 
 
 6 Gray v. Ward, 18 111. 32; Bentley 
 V. White, 3 B. Mon. 263; 38 Am, Dec. 
 185. 
 
 ■^ Benedict v. Thompson, 33 La. 
 Ann. 196. 
 
 8 Cocke V. Branch Bank, 3 Ala. 175. 
 
 9 Pease v. Cole, 53 Conn. 53. 
 
 10 Horn v. Newton City Bank, 32 
 Kan. 518. 
 
 335
 
 g 329. CONDUCT OF THE BUSINESS. 
 
 to bo made between mechanical, 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 bnsiness, and moreover, there 
 was evidence of a usage of the firm to borrow, known to the other 
 
 partners. 
 
 336
 
 CHAPTER VL 
 
 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 dissokition 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 aUuncle 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 transacting its business, or relating to matters 
 within the scope of the partnership, are evidence against the 
 firm.* 
 
 1 Ferguson v. Fyffe, 8 CI. & Fin, 3 Gulick v. Gulick, 14 N. J. L. 
 
 121; Burgan v. Lyell, 2 Mich. 103; 578; Phillips v. Purinton, 15 Me. 425; 
 
 55 Am. Dec. 53; Cunningham v. Wickham v. Wickhara, 3 K. «S; J. 
 
 Sublette, 4 Mo. 224; Cady v. Kyle, 491. 
 
 47 id. 346. 4 Wood v. Braddick, 1 Taunt. 104; 
 
 2Mutison V. Wickwire, 21 Conn. Tlnvaites t\ Rich»nison, 1 Peake, 23 
 
 513. flO]; Nicholla v, Dowding, 1 Stark. 
 Vol. 1 — 23 837
 
 S^331. 
 
 CONDUCT OF THE BUSINESS. 
 
 For example: Declarations of the partners that their men were 
 to be 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 compe- 
 tent in impeachnient of the release.* 
 
 An admission by a partner that 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, t id. 161 ; 
 Wright V. Court, 2 C. «fe P. 233; 
 Wickluim V. Wickham, 2 K. & J. 
 478,491; Rapp u. Latham. 2 B. & 
 Aid. 795 ; Corps V. Robinson, 2 Wash. 
 C. C. 388 ; Fail v. McArthur, 31 Ala. 
 26; Smitha v. Cureton, 31 id. 652; 
 Jemison v. Minor, 34 id. 33; Talbot 
 V. Wilkins, 31 Ark. 411; Miinson v. 
 Wickwire, 21 Conn. 513; McCutcheu 
 V. Banston, 2 Ga. 244; Dennis v. Ray, 
 9 id. 449; Clayton v. Thompson, 13 
 id. 206; Drumrighty. Philpot, 16 id. 
 424; 60 Am. Dec. 738; Kaskaskia 
 Bridge Co. v. Sliannon, 6 111. 15; 
 Hurd V. Haggerty, 24 111. 171 ; Boor 
 u. Lowrey, 103 Ind. 468; First Nat'l 
 Bk. V. Carpenter, 34 Iowa, 433; 
 Wiley V. Griswold, 41 id. 375; Spears 
 V. Toland, 1 A. K. Mar. 203 ; Boyce 
 V. Watson, 3 J. J. Mar. 498; Phillips 
 V. Purinton, 15 Me. 425; Gilmore v. 
 Patterson, 36 id. 544; Fickett v. 
 Swift, 41 id. 65; Doremus v. McCor- 
 mick. 7 Gill, 49; Harryman v. Rob- 
 ens, 53 Md. 64, 77; 20 Am. Law Reg, 
 (N. S.) 373; Odiorne v. Maxcy, 15 
 
 Mass. 39; Collett v. Smith (Ulass.), 
 10 N. E. Rep. 173; Burgan v. Lyell, 
 2 Mich. 103; 55 Am. Dec. 53; Faler 
 V. Jordan, 44 Miss. 283; Cunningham 
 V. Sublette, 4 Mo. 224; Cady v. Kyle, 
 47 Mo. 316 ; Henslee v. Cannefex, 49 
 id. 295; McCann v. McDonald, 7 
 Neb. 305; Jones v. O'Farrel, 1 Nev. 
 354; Webster v. Stearns, 44 N. H. 
 498; Gulick v. Gulick, 14 N. J. L. 
 578; Ruck man v. Decker, 23 N. J. 
 Eq. 283 (reversal in 28 id. 614. is on 
 other grounds); Hoboken Bank v. 
 Beckman, 38 N. J. Eq. 83 (affd. 37 
 id. 331); Fogerty v. Jordan, 2 Robt. 
 (N. Y.) 319; Hilton v. McDowell, 87 
 N. Ca. 364; Allen v. Owens, 2 Spears 
 (S. Ca.), 170; Fisk v. Copeland, 1 
 Overton (Tenn,), 383; Adams v. 
 Brownson, 1 Tyler (Vt.). 453; West- 
 ern Assur. Co. V. Towle, 65 Wis. 
 247. 
 
 1 Wiley V. Griswold, 41 Iowa, 375. 
 
 2 Doremus V. McCormick, 7 Gill, 
 49. 
 
 'Odiorne v. Maxcy, 15 Mass. 39. 
 < Henslee v. Cannefex, 49 Mo. 295. 
 
 S38
 
 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 
 
 1 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. Stearns, 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, 2 Hai'. & J. dence is immaterial provided the ex- 
 
 474, 477; Chapin 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, 2 Ph. 453; Dale v. Hamil- Guice, 13 Sm. & Mar. 656; Fogerty 
 
 ton, 5 Hare, 369, 3D3. And unless the v. Jordan, 2 Robt. (N. Y.) 319. And 
 
 complainant stands in the shoes of the preliminaiy evidence of the ex- 
 
 the declaraut, 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. 
 
 i-each 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. 305 ; 
 
 Lewis V. Allen. 17 Ga. 300. Or in a Jones v. O'Farrel, 1 Nev. 354; 
 garnishee process, Anderson v. Wan- McLeod v. Lee, 17 id. 103 ; McLeod 
 
 zer, 5 How. (Miss.) 587. v. Bullard, 84 N. Ca. 515; Oakley tt. 
 
 'ELaskaskia Bridge Co. v. Shannon, Aspinwall, 2 Sandf. 7. 
 
 339
 
 § 383. 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 bj^aw shares are 
 transferable on\y at the office by the holder personally, a demand 
 for transfer by one partner for both is sufficient.^ 
 
 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 
 
 > Ex parte Agace, 2 Cox, 313. < Jeffries v. Mat. L. Ins. Co. 110 U. 
 
 2 See § 114(3. 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, 204; Purinton v. ceeds and hence like a power 
 Ins. Co. 72 Me. 23; 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. 123, where, however, 5 Beck v. Martin, 2 McMull. (S. Ca.) 
 one partner alone had the certificate 260. 
 
 of agency, but the company had 6 Sargent v. Franklin Ins. Co. 8 
 recognized both. Pick. 90. 
 
 340
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § liU. 
 
 name of B. & P., should appoint a successor, an appointment of a 
 successor by 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 poAver here was to them as individuals and both must concur 
 in the act/ 
 
 That a partner in one 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 efiect, payiug 
 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. 412. 4 Nolan v. Lovelock, 1 Montana, 
 
 22 Keyes, 231; 4 Abb. App. Dec. 224; Burgan v. Lyell, 2 Mich. 102; 55 
 
 644. Am. Dec. 53; Potter v. Moses, 1 R. I. 
 
 3 Beckham v. Drake, 9 M. & W. 79 ; 430, 441. 
 
 Cariey V. Jenkins, 46 Vt. 721; Mead 5 Mead v. Shepard, 54 Barb. 474; 
 
 V. Shepard, 54 Barb. 474; Smith v. Coons u. Renick, 11 Tex. 134, 138; 60 
 
 Cissou, 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 p?5omise was held to be within the 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.* 
 
 § 335. An agent or employee is equally accountable to 
 and subject to the control of one partner as much as of 
 
 * 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, 33 Mich. 
 
 2 Wheatley V. Tutt, 4 Kan. 240. 473; 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, 21 Kan. 26; 30 Whitehead, 1 Dall. 2G9, a partner was 
 
 Am. Rep. 421. held to have power to authorize a 
 
 f' 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. 12 Mass. 
 
 thing that he deemed of mutual in- 237, 243, it was doubted whether one 
 
 terest. partner alone could authorize an- 
 
 • Wills r. Cutler, 61 N. H. 405. other person to give a note in the 
 "> Potter V. Moses, 1 R. I. 4;i0, 441. firm's name. 
 
 342
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 33b. 
 
 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 bim, he is entitled 
 to reimbursement wbere the other partner does not dissent from 
 the employment, although he disapproved.' But an employment 
 of 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 equall}-^ 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.^ 
 
 1 Ayer v. Ayer, 41 Vt. 346 ; Don- Stead v. Salt, 3 Bing. 101 ; s. c. 10 
 
 aldson u. "Williams, 1 Cr. & M. 343. Moore, 389; Karthaus v. Ferrer, 1 
 
 2Hollowayu Turner, 61 Md. 217. Pet. 222-238; Hall v. Lanniug, 1 
 
 5 Besteu. His Creditors, 15 La. Ann. Otto, 160, 170; Fanchon v. Bibb 
 
 55. Furnace Co. (Ala.) 2 So. Rep, 268; 
 
 « Strangford v. Green, 2 Mod. 228 : Jones v. Bailey, 5 Cal. 345 ; Woody 
 
 343
 
 §330. 
 
 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 proofof a previous assent by the part- 
 V. Robinson, 5 Gill & J. 412; Buchoz ner wlio had not signed had not been 
 V. Grand jean, 1 Mich. 367; Backus offered, so that the case virtually de- 
 
 V. Coyne, 35 Mich. 5; Walker v. 
 Bean (Minn. 1886), 26 N. W. Rep. 
 232; Buchanan v. Curry, 19 Johns. 
 137; 10 Am. Dec. 200; McBride v. 
 Hagan, 1 Wend. 320; Harrington v. 
 Higham, 13 Barb. 060; S. C. 15 id. 
 524; Wood V. Sheplierd, 2 Palt. & H. 
 
 cided that assent need not be shown 
 by the plaintiffs. 
 
 1 Davis V. Berger, 54 Mich. 052. See 
 Wilcox V. Singletary, Wright (O.), 
 420; and see Kartiiaus v. Ferrer, 1 
 Pet. 222, 231. That one of the part- 
 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, 25 an arbitration clause without ob- 
 111. 48; Taylor v. Coryell, 12 S. & R. 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 a submis- Mass. 395. Thus, if the other part- 
 sion under seal: Armstrong v. Rob- ner liad previously read and ap- 
 inson, 5 Gill & J. 412; Buchanan r. proved the submission, and was in 
 Curry, 19 Johns. 137; 10 Am. Dec. the store at the time it was signed, 
 200. While the following concede this is sufficient to bind both. Mackay 
 this power, assigning as the reason v. Bloodgood, 9 Johns. 285. 
 that a seal is not necessary: Hallack 2 Perhaps 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, 12 S. & R. 243, 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. 652. So receiving 
 ness do not require a partner to pos- the avails of it by the partner 
 Bess 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. 200. The 
 13 Barb. 600; 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 had this power assent (Hallack v. March, 25 111. 
 in Wilcox i;. Singletary, Wright (O.), 48); but may not be conclusive, as 
 420 ; 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 v. 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 iirm, and an award ma}'^ 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, 2 Patt. & 
 
 tice to all. Haywood v, Harmon, 17 H. (Va.) 443. 
 
 III. 477. But as the award must be 2 Abbott v. Dexter, 6 Cush. 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. Grand jean, 1 Mich. 367. to the extent of loss under au insur- 
 
 Contra, see dissenting opinion of ance policy. 
 
 Dwight, J., in Becker v. Boon, 61 N. * Perkins v. Hoyt, 35 Mich. 506. 
 
 y. 317. 5 Clanton v. Price, 90 N. Ca. 96. 
 
 1 Jones V. Bailey, 5 Cal. 345; Arm- CBoynton v. Boynton, 10 Vt. 107. 
 
 strong V. Robinson, 5 Gill & J. 413; 7 Whitney v. Cook, 5 Mass. 139. 
 
 Strangford v. Green. 2 Mod. 238; "Wesson v. Newton, 10 Cush. 114. 
 
 -'o' 
 
 McBride v. Hagan, 1 Wend. 326; 
 
 315
 
 §338. CONDUCT OF THE BUSINESS. 
 
 ASSIGN FOR CREDITORS. 
 
 § 338. Cannot assign for creditors. — The implied power of 
 a partner over the assets of the firm, which is so great as to en- 
 able him to convey 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 Biss. 128; 511; Kelly v. Baker, 2 Hilt. 531; 
 
 Pearpoint v. Graham. 4 Wash. C. C. Deming v. Colt, 3 Saudf. 284, foil, by 
 
 232,. 234; Wooklridge r. Irving, 23 Hayes v. Heyer, id, 293; Fisher u 
 
 Fed. Rep, 670; Dunklin v. Kimball, Murray, 1 E. D. Smitli. 341; Wetter 
 
 50 Ala. 251; Wilcox v. Jackson, 7 v. Schlieper, 4 id. 707; 15 How, Pr. 
 
 Colorado, 531 ; Loeb v. Pierpoint, 58 268; Coope v. Bowles, 42 Barb. 87; 18 
 
 Iowa, 409; 43 Am, Rep. 122; BiiUu, Abb. Pr, 442; Palmer v. Myers, 43 
 
 Harris, 18 B. Mon. 195; Maughlin u. Barb. 509; 20 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. 172); Stein v. La Dow, iels, 14 id. 500; Henderson u. Haddon, 
 
 13 Minn. 412; Hughes v. Ellison, 5 13 Rich. (S. Ca.) Eq. 39:3; Williams 
 
 Mo, 403; Hook v. Stone, 34 id. 329; v. Roberts, 6 Cold. (Tenn.) 493, 497; 
 
 Steinhartu Fyhrie, 5 Montana, 463; Dana v. Lull, 17 Vt, 391, 393-4; 
 
 Petteef. Orser, 6 Bosw. 123; 18How. Brooks v. Sullivan, 33 Wis. 444; 
 
 Pr. 442; Haggerty v. Granger, 15 Rumery v. McCulloch, 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, 80; C. P. 389; Stevenson v. Brown, 9 L. 
 
 Hitchcock V. St. John, Hoff, Ch. J, Chy. (Up. Can,) 110; 2 Bell's Com, 
 
 840
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 330. 
 
 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. Ratification. — 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. Eep. 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, 23 Fed. Rep. 076, 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 Partnersiiip, pp. 189 to 192. 
 
 ner an imbecile, and the assigning In Whitworth v. ^Jfatterson, 6 Lea 
 
 partner had a power of attorney to (Tenn.), 119, holding that where there 
 
 transact all business. The assign- was no actual partnership, but a 
 
 ment was, however, held void on mere holding out, tiie real owner 
 
 other grounds also. could assign for creditors, it was 
 
 1 Henuessy v. Western Bank, 6 said that the same rule would obtain 
 
 Watts. & S. 300; 40 Am. Dec. 560; in case the non-assenting partner 
 
 Eobinsou 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, 
 
 25 W. Va. 670; Lasell v. Tucker, 5 Durgin u. Coolidge, 3 Allen, 554, 555; 
 
 Sneed (Tenn.), 33 (regretted in Bar- or may sign for the firm a petition 
 
 croft V. Snodgi-ass, 1 Cold. 430, 440, for its bankruptcy. Pleasants v. 
 
 and is distinguishable because the Meng, 1 Dall. 380. 
 non-assenting partner was, in fact, spearpoint v. Graham, 4 Wash. C. 
 
 absent; and in Williams v. Roberts, C. 232; Dunklin v. Kinibali, 50 Ala. 
 
 6 Cold. 493, 497, it was said that if 251; Rumery v, McCulloch, 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 bo assign was said Mon. 230; Sheldon v. Smitli, 28 Barb, 
 
 not to arise " because it does not ap- 593; Roberts v. Shepard, 2 Daly, 110; 
 
 pear that he had not authority." McNutt v. 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 BUSINESS. 
 
 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, G6 Wis. 155. And 
 
 463, it was said that tlie act was so see Loeb v. Pierpoint, 58 Iowa, 469; 
 
 important and solemn that public 43 Am. Rep. 123; and Steinhart v. 
 
 policy requires that the autliority be Fyhrie, 5 Montana, 463. But see 
 
 given in advance, and under such Adee v. Cornell, 93 N. Y. 572. 
 
 circumstances that no question can 3 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. 403. 
 
 said that a ratification could not re- < Deckert v. Filbert, 3 Watts & S. 
 
 late back, because attaching credit- 454 ; Holland u. 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; 8 Clark v. Wilson, 19 Pa. St. 269; 
 
 a reason which requires a public and Clark v. McClelland, 2 Grant's Cas. 
 
 not a secret ratification. 31. 
 
 2Stein V. La Dow, 13 Minn. 412; eormsbee v. Davis, 5 R. I. 442. 
 Holland v. Drake, 29 Oh. St. 441; 
 
 343
 
 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 exckisive control 
 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 sufficient/ 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, 2 Daly, 395; Welles v. March, 30 stated in Wells v. Marsh, 30 N. Y. 
 N. Y, 344; Kemp v. Carnley, 3 Duer, 344, 330). 
 
 1; Palmer v. Myers, 43 Barb. 509; 4 Dunklin v. Kimball, 50 Ala. 251; 
 29 How. Pr. 8; Sullivan v. Smith, 15 Pettee r. Orser, 6 Bosw. 123; 18 How. 
 Neb. 476; 47 Am. Rep. 354; Deckard Pr. 442, where the assignment was 
 V. Case, 5 Watts, 22; 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 where the articles 
 How. Pr. 26a. • provided for equal payment to all 
 
 2 Petition of Daniels, 14 R. I. 500. creditors, anassignment withprefer- 
 'Harrison u. Sterry, 5Cranch, 289; ence by one partner, in violation 
 Anderson v. Tompkins, 1 Brock. 416; thereof, was held void in Marsh v. 
 Robinson v. Crowder, 4 McCord (S. Bennett, 5 McLean, 117. 
 Ca.), L. 519; 17 Am. Dec. 763; Forbes 5 See Hunter v. Waynick, 67 Iowa, 
 V. Scannell, 13 Cal. 242; Williams v. 555. 
 Frost, 27 Minn. 255; Robinson v. 
 
 349
 
 g 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.' v 
 
 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 uplield.* 
 
 BILLS AND NOTES. 
 
 § 311. In trailing 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 such 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 u. La Dow, 13 Minn. 413. 218; Brown v. Kidger, 3 H. & N. 
 
 2 In Graves V. Hail, 33 Tex. 665, 853; Stepliens u Reynolds, 5 id. 513; 
 
 but here the otiier partner made no Ex parte Darlington Bauldug Co. 4 
 
 complaint. And see Lasell v. Tucker, DeG. J. & S. 581 ; Sutton v. Gregory, 
 
 5Sneed, 33. The right of a surviving 2 Peake, 150; Lewis v. Reilly, 1 Q. 
 
 partner stands on a different basis, B. 349; Swan v. Steele, 7 East, 210; 3 
 
 for he is in legal contemplation the Smith, 119 ; Winship v. Bank of U. S. 
 
 sole owner, and his power to assign 5 Pet. 529;Kiml)ro u. Bulliit, 23 How. 
 
 for creditors is generally conceded. 256 ; Cocke v. Branch Bank, 3 Ala. 
 
 See § 733. 175 ; Howze v. Patterson, 53 id. 205 
 
 sPinkney v. Hall, Ld. Raym. 175 (25 Am. Rep. G07); Wagner v. Sim- 
 
 (1 Salk. 120); Smith v. Bailey, 11 mons, 61 id. 143 ; Palmer u. Scott, 68 
 
 Mod. 401; -E^cpaWeBonbonus, 8 Ves. id. 380; Storer v. Hinkley, Kirby 
 
 540; Davison v. Robertson, 3 Dow. (Conn.), 147 ; Champion r. Mumford, 
 
 350
 
 PARTICULAR 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 be a dissolution,* the creditor had no notice of the dissolu- 
 
 id. 170; Pease v. Cole, 53 Conn. 53; 118; Crostliwait v. Ross, 1 Humph. 
 
 Dowr. 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. 252 (51 Am. Dec. 734); 
 
 Gregg V. Fisher, 3 111. App. 261; Michael r. Workman, 5 W. Va. 391. 
 
 Sherwood v. Snow, 46 Iowa, 481 (26 For the power to indorse as involved 
 
 Am. Rep. 155); Deitz v. Regnier, 27 in the power of disposition of paper 
 
 Kan. 94; Liudh 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, i Tilford v. Ramsey, 37 Mo.'563. 
 
 7 Har. & J. 28; Richardson V. French, 2Milmine v. Bass, 29 Fed. Rep. 
 
 4 Met. 577; Smith v. Collins, 115 632; Tilford v. Ramsey, 37 Mo. 563, 
 
 Mass. 388; Stimson v. Whitney, 130 567. 
 
 id. 591; Carrier u. Cameron, 31 Mich. 3 Horn v. Newton City Bank, 32 
 
 473; Faler v. Jordan, 44 Miss. 283; Kan. 518. 
 
 Holt V. Simmons, 16 Mo. App. 97; ^Pahlman r. Taylor, 75 111. 629. 
 
 Feurt V. Bniwn, 23 id. 332; Roney v. SMoseley v. Ames, 5 Allen, 163. 
 
 Buckland, 4 Nev. 45; Dow v. Moore, fiSee §§ 397-400. 
 
 47 N. H. 419; Benninger v. Hess, 41 'See § 347. 
 
 Oh. St. 64;Ho9kisson r. Eliot, 62 Pa. 8 Which was denied in Arnold v. 
 
 St. 393; Moorehead v. Gilmore, 77 id. Brown, 24 Pick. 89.
 
 § 842. CONDUCT OF THE BUSINESS. 
 
 tion, for notico is either not necessary in such 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 honajide buyer of such paper after the insertion of the name 
 could sue upon it.' 
 
 § 342. Tlie fact that the articles forbid any or all partners 
 to make negotiable paper does not afliect 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 raise 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, and 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 docs 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 owned as tenants in common.^ 
 
 1 The power to indorse over paper 2 Bloom v. Helm, 53 Miss. 21; Ben- 
 luade to the firm involves the power ninger t\ Hess, 41 Oh. St. C4. 
 of disposition and is treated under STliicknesse v. Bromilow, 2 Cr. & 
 § 401. Hogarth v. Latham, 3 Q. B. J. 42.'). 
 
 D. 643. 4 Lime Rock F. & M. Ins. Co. v. 
 
 Treat, 58 Me. 415. 
 852
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 343. 
 
 §343. In iioii-tratling firms.— The general rule in non- 
 trading partnerships is that no autliority 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 tlie paper is 
 essential to carry into effect an ordinary purpose for wliich 
 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, ma}^ 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. Rep. 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 ihe 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 firm, as a firm of lawyers, cannot 
 
 firm, Forster v. Mackreth, L. R. 2 issue it. 
 
 Ex. 1C3; Bull u. O'Sullivan, L. R. 6 2The same ruling was made in 
 
 <3. B. 209; Commercial Bank v. Bradley v. Linn, 19 III. App. 322; 
 
 Proctor, 98 111. 558. It must be re- and also in Skillmau v. Lachman, 23 
 
 membered that a post-dated check Cal. 199, where, however, the note 
 
 is equivalent to a time draft, and a was for three per cent, a mouth, 
 member of a strictly non-trading 
 
 Voul— 23 353
 
 § 313. CONDUCT OF THE BUSINESS. 
 
 giving a note is ontside tlie scope of the business, the note is not 
 biudiiig 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 ludian 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 
 
 31G, of a law firm to pay a debt due Doty v. Bates, 11 Johns. 514, that 
 
 to a client. Greenslade v. Dower, 7 the note of a firm engaged in tan- 
 
 B. & C. 635, of a farming partner- ning. cm-rying 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, 2 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 u. Con- have been good if it had been to pay 
 
 ner, 105 Ind. 415, for a loan to pay a a debt, 
 debt. Sherwood, J., in Dcardorf v. 2Hermanos v. Duvigneaud, 10 La. 
 
 Thacher, 78 Mo. 128, 133; 47 Am. 
 Rep. 95; Breckinridge v. Slirieve, 4 
 Dana, 375, to borrow to pay a debt. 
 Benton v. Roberts, 4 La. Ann. 217, 
 
 Ann. 114. 
 
 3 Greenslade v. Dower, 7 B. & C. 
 635; 1 Man. & Ry. 640. 
 
 ^Greenslade v. Dower, 7 B. & G. 
 
 of a planting partnership to pay for 635; Benton v. Roberts, 4 La. Ann. 
 the land held in common. Prince r. 216; Prince v. Crawford, 50 Miss. 
 Crawford, 50 Miss. 344, of a planting 344; Hunt v. Chapin, 6 Laus. 139; 
 partnership for necessaries. Ulery Ulery v. Ginrich, 57 111. 531. 
 r. Ginrich, 57 111. 531, of a farming 5 Cocke v. Branch Bank at Mobile, 
 partnership in part to pay debts. 3 Ala. 175. 
 
 Hermanos v. Duvigneaud, 10 La. 6 Lanier v. McCabe, 2 Fla. 32; 48 
 Ann. 114; McCord v. Field, 27 Up, Am. Dec. 173. 
 
 Can. C. P. 391. But Hickman v. 7 Hermanos t>. Duvigneaud, 10 La. 
 Kunkle, 27 Mo. 401, held that one of Ann. 114. 
 
 livery -stable keepers, prima facie, scargillv. Corby, 15 Mo. 425. 
 
 854
 
 PAETICULAR POWERS BEFORE DISSOLUTION. § S44. 
 
 So a firm in the diy 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 sui3plies by a member of a 
 non-tracling partnership is valid. 
 
 In Johnston v. Button, 27 Ala. 245, a purchase on credit by 
 one partner in a steam saw-mill firm of groceries and previsions 
 necessary for the hands, and giving a note therefor, is virith'n the 
 scope. So in Gavin v. Walker, 11 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 iu 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, 53 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 livery-stable firm for §71 for stoves was not necessarily outside 
 the scope, as it might need one or more stoves for lieating, 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 
 
 iHuntr. Chapin, 6 Lans. 139. 'Graves v. Kellenberger, 51 Ind. 
 
 2 Waller v. Keyes, 6 Vt. 257. 66, the other partner owned the milL 
 
 855
 
 § 315. CONDUCT OF THE BUSINESS. 
 
 holder could show that the note is necessary to carry on the husi- 
 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, 283, the opinion of the court is 
 to the effect that a power to purchase being given involves the 
 power to give notes for the purchase, where, as in the example put 
 by the court, 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 v. Washington, 8 Gratt. 
 248, of notes by managing partners of an iron manufacturing 
 partnership to buy timber land to get fuel from. The notes were 
 held valid. The power to buy the land seems to have been as- 
 sumed, and the only question was on whose credit it was bought. 
 
 In Deardorf v. Thacher, 78 Mo. 128, 135 (47 Am. Rep. 95), it was 
 said by Henry, 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. 133, said tliat 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 bnyer 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 in- 
 volves the power to issue mercantile paper, and if it does 
 not he has, by law, notice of that fact.^ 
 
 1 Dickinson y. Valpy, 10 B. & C. 138 ; v. Thompson, 33 La. Ann. 196 ; Levi v. 
 Cocke V. Branch Bank, 3 Ala. 175; Latham, 15 Neb. 509 (48 Am. Rep. 
 Pease v. Cole, 53 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 otlier powers, want of implied power is snppliel 
 by previous express authorization or subsequent ratification; lunce 
 if T. agrees to convey land to E. & S., partners, payable in their 
 notes, a tendar of notes signed by IJ., 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.* 
 
 § IM6. Joint and several notes. — As a partner represents 
 the firm, and is not th3 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, construed 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 '*! promise" signed by several, import a joint and 
 several promise, yet if the signature is in a firm name, the 
 
 ford, 50 Miss. J544 ; Lynch v. Thonip- homestead exemptions. in individual 
 
 son, 61 id. 354; Judge v. Braswell, 13 property or any other pergonal priv- 
 
 Bush, G7 (26 Am. Rep. 185). See, ilege. Terrell v. Hurst, 76 Ala. 588. 
 
 also, Greenslade v. Dower, 7 B. & C. ■* Maclae v. Sutherland, 3 El. & B. 
 
 635; Williams u. Thomas, 6 Esp. 18. 36; Doty v. Bates, 11 Joliiis. 544; 
 
 1 Smith V. Jones, 12 Me. 332. Sherman y. Christy, 17 Iowa, 322. 
 
 2 Ilotchkiss V. English, 4 Hun, 369; 5 Stroh v. Hinchman, 37 Mich. 490. 
 6N. Y. Supreme Ct. 658. 6 Elliot v. Davis, 2 B. & P. 338; 
 
 sPerring u. Hone, 4 Bing. 28, 33; Sherman v. Christy, 17 Iowa, 322; 
 2 C. & P. 401; Sherman v. Christy, Fulton v. Williams. 11 Cush. 108, 
 17 Iowa, 322, 324; Marlett v. Jack- 109; Snow v. Howard, 35 Barb. 55. 
 man, 3 Allen, 287, 291; Snow v. See, also, Gillow u. Lillie, 1 Bing. N. 
 Howard, 35 Barb. 55. Or to waive Cas. 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 several 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 pej'son, and the other signer as 
 another jjerson 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."* 
 
 § 34:7. 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. Blackf. 57, 261 ; Hickman v. Reine- 
 469; 1 Ph. 562 (overruling Hall v. kiiiff, 6 Blackf. 387: Flagg u. Upham, 
 Smith, 1 B. & C. 407); s. C. as Ex 10 Pick. 147, 148-9; Adams Bank u. 
 par/e Clarke, DeGex, 153; (reversing Jones, 16 id. 574; Roberts v. Pepple, 
 S. C. as Ex parte Christie, 3 M. D. & 55 Mich. 367; Robinson v. Aldridge, 
 DeG. 736); Brown v. Fitch, 33 N. J. 34 Miss. 352; Klein v. Keyes, 17 Mo. 
 L. 418; Doty v. Bates, 11 Johns. 544; 326 ; Ferguson u Thacher, 79 Mo. 511; 
 Van Tine v. Crane, 1 Wend. 524. Davis v. Cook, 9 Nev. 134; Daveu- 
 
 2 Van Tine v. Crane, 1 Wend. 524; port v. Runlett, 3 N. H. 386; Will- 
 J2e Hulbrook, 2 Low, 259. iams u. Gilchrist, 11 id. 535; Dob r. 
 
 3 Gal way v. Matthew, 1 Camp. 403; Halsey, 16 Johns. 34. 39 (8 Am. Dec. 
 Ex parte Buckley, 14 M. & W. 469; 293); Williams i?. Walbridge, 3 Wend. 
 IPh. 5G2; Ex parte Clarke, DeG. 153, 415; Gansevoort v. Williams, 14 id. 
 reversing Ex parte Christie, 3 M. D. 133; Rust v. Hauselt, 9 Jones & Sp. 
 & DeG. 73ij; Doty V.Bates, 11 Johns. 467 (aflfd. 76 N. Y. 614); Gale v. 
 544. Miller, 54 N. Y. 536; Atlantic 
 
 <Maclaeu. Sutherland, 3 E. & B. State Bank v. Savery, 83 N. Y. 291 
 
 1; Re Holbrook, 2 Low. 259; Brown (affg. 18 Hun, 36); Cotton v. Evans, 
 
 V. Fitcii. 33 N. J. L. 418; Van Tine 1 Dev. & Bat. Eq. 284; Wrt-d v. 
 
 .V. Crane, 1 Wend. 524; Snow v. Ricliardson. 2 Dev. & Bat. L. 535; 
 
 t Howard, 35 Barb. 65. Miller u. Richardson, 2 Ircd. L. 250; 
 
 5 See, for exam pie, Scott V. Dansby, Himelright v. Johnson, 40 Oh. St. 
 
 12 Ala. 714; Freeman v. Ross, 15 40; Baird v. Cochran, 4 S. & R. 397; 
 
 Ga. 252; Gray u. Ward, 18 111.32; 397; Porter u. Gunnison, 2 Granfs 
 
 Wittramv. VanWormer,44 111. 525; Cas. 297; McKinuey u. Bradbury, 
 
 Taylor v. llillyer, 3 Blackf. 433 (26 Dallam (Tex.), 441; Van Alstyne'r. 
 
 Am. Dec. 430); Hagar v. Mounts, 3 Bertrand, 15 Tex. 177; Poiudexter v. 
 
 358
 
 PARTICULAR POWERS BEFORE DISSOLUTION. ' § 347. 
 
 Nor has ho 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 firm 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. 
 Dec. 749); Deals v. Sheldon, 4 Up. 
 Can. Q. B. (Old Ser.) 302. And see 
 § 1038. And accommodation parties 
 U])on tlie paper are not estopped to 
 dispute its validity in the hands of 
 the creditor of one partner. Garland 
 V. Jacomb, L. R. 8 Ex. 216. And see 
 Russell V. Annable,.109 Mass. 72 (12 
 Am. Rep. 165); but see § 423. 
 
 iShirreff v. Wilks, 1 East, 48; Hes- 
 ter V. Lnmpicin, 4 Ala. 509; Bryan v. 
 Tooke, 60 Ga. 437 ; Waller v. Davis, 
 59 Iowa, 103; Elkin v. Green, 13 
 Bush, 612; Spaunhorst v. Link, 46 
 Mo. 197; Howell v. Sewing Machine 
 Co. 12 Neb. 177; Guild v. Belcher, 119 
 Mass. 257. And see further, 65)^557,558. 
 Contra, if composed of part of the 
 same individuals without new part- 
 ners, Foster v. Hall, 4 Humpli. 346; 
 but where the new firm is indebted 
 to tlie old and to its members, a note 
 by one partner in the name of the 
 new to a creditor of the old was held 
 valid. Hester v. Lumpkin, 4 Ala. 
 609. 
 
 2 Newman v. Richardson, 4 Woods, 
 C. C. 81 ; 9 Fed. Rep. 865; Rutledge 
 V. Squires, 23 Iowa, 53 ; i?e Forsyth, 
 7 Bankr. Reg. 174 ; Potter v. Dillon, 
 7 Mo. 228; 37 Am. Dec. 185; Bank of 
 Commerce v. Selden, 3 Minn. 155; 
 Stainer v. Tysen, 3 Hill, 279, Noble 
 V. McClintock, 2 W. & S. 152; Gullat 
 V. Tucker, 2 Cranch, C. C. 33. 
 
 3 Randall v. Hunter, 66 Cal. 512; 
 Shaw V. McGregory, 105 Mass. 96. 
 
 ^Markham v. Hazeu, 48 Ga. 570; 
 Morris v. Marqueze, 74 id. 86; Silver- 
 man V. Chase, 90 111. 37; Johnson v. 
 Barry, 95 id. 483. 
 
 5 Bell V. Faber, 1 Grant's Cas. (Pa.) 
 31 ; King v. Faber, 92 Pa. St. 21. 
 
 6 Wilson V. Lewis, 2 M. & G. 197; 
 S. C. as Wilson v. Bailey, 9 Dowl. 18; 
 Gamble u Grimes, 2Ind. 392; Guild 
 V. Belcher, 119 Mass. 257; Ellstou v. 
 Deacon. L. R. 2 C. P. 20, but here the 
 court amended the declai'ation by 
 adding a count for the consideration. 
 Perhaps this would not be so in case 
 of collusion. See Snyder x\ Luns- 
 ford, 9 W. Va. 223, given under § 410. 
 
 859
 
 § 348. CONDUCT OF THE BUSINESS. 
 
 notes allotted to liim.' And on the same principle, if a firnl of 
 mechanics assign a claim to one partner, he can use the firm's name 
 to perfect a lien on the debtor's property.' 
 
 § 348. subsequent 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. Hildieth, 9 Barb. 290; Miller v. Manice, G Hill, 
 Cush. 356. 114, 119; Wharton v. Woodburn, 4 
 
 2 Jones V. Hurst, 67 Mo. 5G8; Bus- Dev. & Bat. L. 507; Dickson v. Alex- 
 fieW u. Wheeler, 14 Allen. 139. ander, 7 Ired. L. 4; Kleinhaus v. 
 
 3 Bond 17. Gibson, 1 Camp. 185; Generous, 25 Oh. St. CG7; Haldemaa 
 Kimbro v. Bullitt, 23 How. 256; v. Bank of Middletovvn, 28 Pa. St. 
 Winship v. Bank of U. S. 5 Pet. 529, 440; Windliam Co. Bank v. Kendall, 
 566; Howze I'. Patterson, 53 Ala. 205; 7 R. I. 77; Crosthwait v. Ross, 1 
 25 Am. Rep. 607; Carver v. Dows, 40 Humph. 23, 29; 34 Am. Dec. 013; 
 111. 374; Stark v. Corey, 45 id. 431; Venable v. Levick, 2 Head, 351; Van 
 Gregg u Fisher, 3 111. App. 261; Da- Alstyne v. Bertrand, 15 Tex. 177; 
 vis V. Blackvvell, 5 id. 32; Rend v. Gilchrist v. Braude, 58 Wis. 184; 
 Boord, 75 Ind. 307; Siierwood v. Simpson u. McDonough, 1 Up. Can. 
 Snow, 46 Iowa, 481 ; 26 Am. Rep. 155 ; Q. B. 157. 
 
 Lemon v. Fox, 21 Kan. 152, 159; 4 Capelle v. Hall, 12 Bankr. Reg. 
 Lindh v. Crowley, 29 id. 756; Warren l; Deitz v. Regnier, 27 Kan. 94; Lit- 
 V. French, 6 Allen, 317; Hay ward v. tell v. Fitch, 11 Mich. 525; Bank of 
 French, 12 Gray. 453 ; Littell v. Fitch, St. Albans v. Giililand, 23 Wend. 311; 
 11 Mich. 525; 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 2 N. Y. 
 Mo. App. 587; Wagner u. Freschl, 56 469). Though the note was under 
 N. H. 495; Cimrch v. Sparrow, 5 seal, Wharton r. Woodburn, 4 Dev. & 
 Wend. 223; Whitaker v. Brown, 16 Bat. L. 507; Piirvianceu. 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 
 Giililand, 23 Wend. 311; 35 Am. Dec. claim the want of authority apparent 
 566 ; National Bank v. Ingraham, 58 on the face of the paper, see § 423. 
 
 860
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 349. 
 
 In Stoclcwell V. Dillingliain, 50 Mc. 443, D. advanced liis note to 
 a person represented by one of the partners as a person who had 
 loaned him money 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. 
 
 § 341). Signing iirm name for security or accommodation. 
 A partner has no 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 pai'tner to guaranty the 
 debts of others or to lend their credit by giving accommo- 
 dation paper or going surety, and such act by one partner 
 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 bona fide holder, and cannot 
 recover against the partnership/ even though reasonable 
 
 1 Crawford v. Stirling, 4 Esp. 207; Redlon v. Churchill, 73 Me. 146 (40 
 
 Duucau V. Lowndes, 3 Camp. 478; Am. Rep. 345); Hopkins v. Boyd, 11 
 
 Brettel v. Williams, 4 Ex, 623; Md. 107 ; Sweetser ?;. French, 2 Cush. 
 
 Hasleham v. Young, 5 Q. B. 833; 309 (48 Am. Dec. 666); Butterfield v. 
 
 Be Irving, 17 Bankr. Reg. 22; Rol- Herasley, 12 Gray, 226; Natl. Bk. of 
 
 ston V. Click, 1 Stew. 526; Mauldin Commonwealth v. Law, 127 Mass. 
 
 V. Branch Bk. at Mobile, 2 Ala. 502, 72; Freeman's Natl. Bk. v. Savery, 
 
 513; Hibbler v. De Forest, 6 id. 93; 127 id. 75; Heffron v. Hanaford, 40 
 
 Lang V. Waring, 17 id. 145; Hendrie Mich, 305; Moynahan v. Hanaford, 
 
 V. Berkowitz, 37 Cal. 113; N. Y. 42 id. 329; Selden v. Bank of Com- 
 
 Firemen's Ins, Co, v. Bennett, 5 merce, 3 Minn, 166; Osborne v. 
 
 Conn, 574 (13 Am. Dec. I09j; Mix v. Stone, 30 id, 25; Osborne v. Thomp- 
 
 Muzzy, 28 id. 186; May berry u. Bain- son, 35 id, 229; Andrews v. Planters* 
 
 ton, 2 Harr. (Del.) 24; Marsh v. Bank, 7 Sm, & Mar, 192 (45 Am. 
 
 Tiiompson Natl. Bk. 2 111. App. 217; Dec. SOO); Langan v. Hewett, 13 id. 
 
 Davis V. Black well, 5 id. 32; Beach 122; Sylversteia v. Atkinson, 45 
 
 V. State Bank, 2 lud. 488; Whitmore Miss. 81; Bloom v. Helm. 53 id, 21; 
 
 V. Adams, 17 Iowa, 507; Clark v. Kidder v. Page, 48 N, H, 380; Liv- 
 
 Hyraan, 55 id, 14; Silvers r. Foster, ingston v. Roosevelt, 4 Johns. 251 
 
 9 kan, 56; Wagnon v. Clay, 1 A. K. (4 Am. Dec. 273); Foot v. Sabin. 19 
 
 Mar, (Ky.) 257; Chenowith u Cham- Johns. 154; Schermerhorn v. Scher- 
 
 berlin, 6 B. Mon. 60 (43 Am. Dec. merhorn, 1 Wend. 119; Laverty v. 
 
 145); Vredenburg v. Lagan, 28 La, Burr, 1 id, 529; Boyd v. Plumb, 7 
 
 Ann 941; Darliug v. March, 22 Me. id, 309; Mercein i\ Andrus, 10 id, 
 
 184; Rollins v. Stevens, 31 id. 454; 461; Joyce v. Williams,* 14 id. 141; 
 
 361
 
 g340. 
 
 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.^ 
 
 Wilson V. Williarng, 14 id. 146 (28 stacle to commerce, Flemming v. 
 
 Am. Dec. 518); Stall v. Catskill Prescott, 3 Rich. (S. Ca.) L. 007 (45 
 
 Bank, 18 id. 406 (aff. s. C. 15 id. 364); Am. Dec. 766); Ex parte Gardom, 
 
 Gansevoort r. Williams, 14 id. 133; 15 Ves. 286. And if a firm lias 
 
 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. 
 436 (3 Abb. Dec. Ill); Butler v. 
 
 the time, § 341. A sole manager 
 under no written articles and of pre- 
 
 stocking, 8 N. Y. 408; Chemung sumed unlimited autliority was held 
 
 Canal Bank u Bradner, 44 id. 680; authorized to bind the firm by recog- 
 
 Atlantic 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. Maxcy, 15 Mass. 39. In First 
 
 Loring, 2 Oh, 440 ; Gano v. Samuel, Natl. Bk. v. Carpenter, 41 Iowa, 518, 
 
 14 id. 592, 600; Sutton v. Irvvine, 12 the question was submitted to the 
 
 S. & R. 13; Bell v. Faber, 1 Grant's ju'T whether the guarantying a 
 
 Cas. (Pa.) 31; Bowman v. Cecil customer's paper was within the 
 
 Bank, 3 id. 33 : McQuewans 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. lOG. 
 Bushong, 105 id. 514; Berryhill v. iBrettel v. Williams, 4 Ex. 623, 
 
 McKee, 1 Humph. 31, 37; Wlialeyy. where one of a firm of contractors 
 
 Moody, 2 Humph. (Tenn.) 49 >; Bank guarantied that a subcontractor 
 
 of Tenn. v. Saffarrans, 3 id. 597; would pay for goods delivered. 
 Scott V. Bandy, 2 Head, 197; Pooley 2 Myatts v. Bell, 41 Ala. 223, 232; 
 
 V. Whitmore, 10 Heisk. 629 (27 Am. Eliot v. Davis, 2 B. & P. 338; Rams- 
 
 Rep. 733): Huntington v. Lyman, 1 bottom V.Lewis, 1 Camp. 279; Owen 
 
 D. Cliip. (Vt.) 438 (12 Am. Dec. 716); v. Van Uster. 20 L. J. C. P. 61 ; 10 
 
 Jones V. Booth, 10 Vt. 268; Tomp- C. B. 318; Nichoils v. Diamond. 9 
 
 kins V. Woodyard, 5 W. Va. 216; Ex. 154; First Natl. Bk. v. Carpen- 
 
 Avery v. Rowell, 59 Wis. 83; Harris ter, 34 Iowa, 433; Silvers v. Foster, 
 
 V. McLcod, 14 Up. Can. Q. B. 164; 9 Kan. 56; Fowle v. Harrington,! 
 
 Henderson v. Carvetli, 16 id. 324; Cusii. 146; Wiggin v. Lewis, 12 id. 
 
 Macklin v. Kerr, 28 Up. Can. C. P. 486; Brown v. Broach, 52 Miss. 536; 
 
 90; McConnell v. Wilkins, 13 Ont. Ferguson v. Thacher, 79 Mo. 511; 
 
 App. 438; Stewart V. Parker, 18 New Merchant V. Beiding, 49 How. Pr. 
 
 Brunswick, 223. Contra: that a 344; Parker t;. Jackson, 16 Barb. 33; 
 
 partner has a right to sign the name Stiles v. Meyer, 61 Barl). 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. 
 
 362
 
 PARTICULAR POWERS BEFORE DISSOLUTION. g 351. 
 
 § 350. The same principle applies to using ths 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 
 tlie 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 b}' 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 hy 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. Congar,' 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, 
 how^ever, is of the slightest jjrima 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, bub is not 
 
 Rowell, 59 Wis. 82; Wilson i\ Brown, G Princeton & Kingston Turnpike 
 
 60nt. App. 411. And see §§421, 691. Co. u. Gulick, 16 N. J. L. 1«1, 1(39. 
 
 1 Charman v. McLaue, 1 Oregon See Hodges v. Ninth Nat'l Bk, 54 
 
 339. Md. 406. 
 
 2Dow V. Smith, 8 Ga. 551; Durant -Supreme Ct. U. S. 18^-1; 20 Am. 
 
 V. Rogers, 87 111. 508. Law Reg. N. S. 328; Lawyers' Coop. 
 
 3 White V. Davidson, 8 Md. 169. Book 26, page 90, not reported in the 
 
 < Marsh t'. Gould, 2 Pick. 285. regular series. And see cases cited 
 
 6Hasl.ham v. Young, 5 Q. B. 833; with this under § 370. 
 
 Dav. «& Mer. 700. 
 
 363
 
 § 351. CONDUCT OF THE BUSINESS. 
 
 really such, the actual nature of the transaction, and not its 
 apparent cliaracter, 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 boand,^ 
 
 Thus in TruUinger v. Corcoran, 81^ Pa. St. 395, Croft was fur- 
 nisliins^ 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 sutficient, 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 maj' 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 N., 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 in the scope 
 of his power. ^ 
 
 iLangan v. Hewett, 13 Sni. & Mar. 32 (dictum); Gano v. Samuel, 14 Oh 
 
 (Miss.) 122; Day u McLe(f<l, 18 Up. 593. 
 
 Can. Q. B. 256; Saltmarsli v. Bower. 2 Day u McLeod, 18 Up. Can. Q. B. 
 
 22 Ala. 221 ; Bank of Commonwealth 256. 
 
 V. Mudgett, 44 N. Y. 514 (aff. 45 Barb. 3 g 373. 
 
 663); Faler v. Jordan, 44 Miss. 2^3; < Steuben Co. Bank f. Alburger (N. 
 
 Winship v. B'k of U. S. 5 Pet. 52!>, Y. 1888), 4 N. e". Rep. 311. 
 
 566; Davis v. Blackwell, 5 111. App. 5 Wilson v. Richards, 28 Minn. 337. 
 
 364
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 352. 
 
 § 352. Bona fide holder protected. — A bona fide holder or 
 indorsee, that is one for value, in due course of husiness, he- 
 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 sepai-ate debt of a partner, 
 or was for the accommodation of a third person, or for a loan 
 to the signing partner, or in au}^ 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 faff'g, s. C. as 
 
 V. Crawford, 7 Bankr. Reg. 299 ; Catskill Bk. v. Stall, 15 id. 864) ; Weils 
 
 Mauldin v. Branch Bk. at Mobile, 3 v. Evans, 22 id. 324; Lockw. Rev. 
 
 Ala. 502, 513; Knapp v. McBride, 7 Cas. 390 (rev. 20 Wend. 251); Austin 
 
 id. 19; Rich v. Davis, 4 Cal. 23; s. C. v. Vaudermark, 4 Hill, 259; Mechan- 
 
 6 id. 141 ; Beach v. State Bank, 3 Ind. ics' Bank v. Foster, 19 Abb. Pr. 47 ; 
 
 488; Freeman v. Ross, 15 Ga. 252; 44 Barb. 87; 29 How. Pr. 40S; First 
 
 Wright V. Brosseau, 73 111. 381 ; Wal- Nat. Bk. v. Morgan, 73 N. Y. 593 
 
 worth V. Henderson, 9 La. Ann. 339; (aff'd, 6 Hun, 346); Atlantic State 
 
 Waldo Bank v. Lumbert. 16 Me. 416; Bank v. Savery, 82 N. Y. 291 (aff"g. 
 
 Boyd V. McCann, 10 Md. 118; Hop- 18 Hun, 36); Cotton v. Evans, 1 Dev. 
 
 kins V. Boyd, 11 id. 107; Boardman & Bat. Eq. 284; Sedgwick v. Lewis, 
 
 V. Gore, 15 Mass. 331; Connecticut 70 Pa. St. 217; Mooreheadu Gilmore, 
 
 River Bk. v. French, 6 Allen, 313; 77 id. 118; 18 Am. Rep. 435; Parker 
 
 Blodgett V. Weed, 119 Mass. 215; v. Burgess, 5 R. I. 277; Hawes v. 
 
 Nichols V. Sober, 38 Mich. 678 ; Bloom Dunton, 1 Bailey (S. Ca.), 146 ; 19 Am. 
 
 V. Helm, 53 Miss. 21; Murphy V. Cam- Dec. 663; Duncan v. Clark, 2 Rich, 
 
 den, 18 Mo. 116; Livingston v. Roose- L. 587; Roth v. Colvin, 32 Vt. 125. 
 velt, 4 Johns. 251 ; Stall v. Catskill 
 
 • 365
 
 § 353. CONDUCT OF THE BUSINESS. 
 
 nocent lioldcr 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 perih* 
 
 § 353. who is a bona fide buyer. — As already said, 
 
 the rules of mercantile paper apply to deterniiiie who are 
 entitled to the rights of bona fide purchaser. Thus a pur- 
 chaser after maturity is not a bona fide buyer in this sense. ^ 
 But if his assignor was a bona 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. & G. 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 indorsevs, 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 owi^ 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.* 
 
 AVhere a partner states to the lender that he desires the money in 
 order to retire the notes of certain customers without 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 recov^er 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, 12 B. Mon. 
 
 2 Rich V. Davis, 4 Cal. 23; Freeman 11 ; 54 Am. Dec. 509. 
 
 r. Ross, 15 Ga. 252. oMcConnell v. Wilkins, 13 Ont. 
 
 »Boyd V. McCaun, 10 Md. 118. App. 438. 
 
 366
 
 PARTICULAR POWERS BEFORE DISSOLUTION. '§ 354. 
 
 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 sufficient 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 b}'' the lender.* 
 
 In Clark v. Johnson, 90 Pa. St. 442, 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 differeut times in the name of 
 the firm. At the time of buying one of the barrels he ordered it 
 sent to Y. & 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, iu 
 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 buyer 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 where 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, 21 Hun, < Hayward v. French, 12 Gray, 453. 
 178. ^N. Y. Firemen's Ins. Co. v. Ben- 
 
 2 Dudley v. Littlefield, 21 Me. 418. nett, 5 Conn. 574, 580 (13 Am. Dec. 
 ' Eastman i>. Cooper, 15 Pick. 276; 109); Cotton v. Evans, 1 Dev. &. 
 
 26 Am. Dec. 600. Bat. Eq. 284. 
 
 367
 
 § 350. 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 Yt. 125, the purchaser of notes signed by 
 a firm knew that the firm was in New York and were wharfino-ers, 
 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 tlie 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, altbough 
 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, Harmou, 14 Me. 271; Freeman's 
 
 127 Mass. 75 ; Stimson v. Whitney, Bank v. Savery, 127 Mass. 75 ; Red- 
 
 130 id. 591, 595; Nichols v. Sober, 38 Ion r. Churchill, 73 Me. 146; 40 Am. 
 
 Mich. 678; Walker v. Kee, 14 S. Ca. Rep. 345; 14 Centr. L. J. 412; Parker 
 
 142; Cotton v. Evans, 1 Dev. & Bat. v. Burgess, 5 R. I. 277. 
 Eq. 234. 3 Connecticut River B'k v. French, 
 
 2Mooreheadv. Gilraore, 77 Pa. St. 6 Allen, 313; Sprague v. Zunts, 18 
 
 118; 18 Am. Rep. 435; Emerson v. Ala. 383. 
 
 368
 
 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 bnyer 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 note, payable to the firm of M. & H., and delivered it to M., 
 supposing it was to be us'd for the firm's benefit, and M. made the 
 firm's note to him in exchange, and gave his note to one 6. 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. Avhen it came due and sued M. & H. 
 Held, 1st, G. could not have sued the firm or plaintiff ou 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 liabihty 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 plaintiif to discount for him a note made by G., 
 
 iHurd V. Haggerty, 24 III. 171; * Foot v. Sabin, 19 Johns. 154 (10 
 Blodgettu. Weed, 119 Mass. 215. Am. Dec. 20S); Rollins v. Stevens, 
 
 2 Blodgett V. Weed, supm. 31 Me. 454 ; Marsh v. Thompson Nat'l 
 
 s Hopkins v. Boyd, 11 Md. 107. Bk. 2 111. App. 217. 
 
 Vol. 1 — 24 369
 
 § 35 S. CONDUCT OF THE BUSINESS. 
 
 gives plaintiff as collateral a note made by the defendant partncr- 
 sLip, 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 G.," 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., indorsed 
 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 with 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 Commonwealth 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 firm 
 
 1 Bowman v. Cecil Bank, 3 Grant's 8127 Mass. 73; S. P. Moynahan v. 
 Cas. (Pa.) 33; Harris v. McLeod, 14 Hanaford, 42 Mich. 329. 
 
 Up. Can. Q. B. 164; St. Nicholas 4 Joyce v. Williams, 14 Wend. 141, 
 Bank v. Savery, 13 Jones & Sp. (45 explained in Stall v. Catskill Bank, 
 N. Y. Super.) 97; per Walworth, C,, 18 Wend. 466; Bloom v. Helm, 53 
 in Stall r. Catskill Bank, 18 Wend. Miss. 21. It must be rememhered that 
 466, 478; Chenowith v.Chamberlin, 6 a partner can bind the firm by ac- 
 B. Mon. 60 (43 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 § 423. 5 Hendrie v. Berkowitz, 87 Cal. 113; 
 
 2 14 Wend. 146 (28 Am. Dec. 518). Tevis v. Tevis, 24 Mo. 535 {dictum). 
 
 370
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 358. 
 
 name pa3'able to a third person and indorsed by liira 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 
 witli 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 b}'' 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 plain tiif 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 placed 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; Tevig 273 Me. 146 (40 Am. Rep. 345; 14 
 V. Tevis, supra; Wait v. Thayer, 118 Centr. Law Jour. 412). 
 Mass. 473, where the maker also filled 3 77 Pa. St. 118, 123 (18 Am. Rep. 
 up blanks in the plaintiff's presence, 435). 
 but it was left to a jury to say 
 whether there was notice. 
 
 871
 
 § 3 GO. CONDUCT OF THE BUSINESS. 
 
 writing, was held not sufficient to put the huj'er 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 tirni to raise money for the 
 firm extends to indorsing as well as making notes. 
 
 § 359. member of several 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. 113, 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. 
 Phiintiff '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, 41 N. Y. 680, Carroll, of Bradner & Carroll, a firm, dissolved 
 without notice of dissolution, of wliich 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. AVhitney, Stone, 3 McLean, 173, where he drew 
 130 Mass. 591 ; Ihmsen v. Negley, 25 a bill in the name of one firm on tlie 
 Pa. St. 297; Miller v. Consolidation other, payable to himself, and ac- 
 Bank, 48 Pa. St. 514; BaLcock v. cepted it in the drawee's name. 
 
 373
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 360. 
 
 tlie avails of it, and the drawers, 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 paj-ee part- 
 ner might ba 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, Tutt v. Addams, 24 Mo. the firm's benefit, and discounted by 
 
 186, where D. & T. S. McDonnell a plaintiff, who had discounted previ- 
 
 firm, 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. Commoawealth v. Mudgett, 44 N. Y. 
 
 McDonnell, who was a partner in 514 (afifg. 45 Barb. 663). But a simi- 
 
 botli 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 See 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. 362; Ex parte Darlington 
 
 the firm's name, stating it to be for Banking Co. 4 DeG. J. &. S. 581. 
 
 373
 
 § 3G1. 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 paj^ment a note of the firm, payable to 
 the debtor's order, is of course not a bona fule 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 connection with others to as- 
 certain if the plaintiff should have taken notice.' 
 
 § 361. Burden 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 Vv^ith 
 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.* 
 
 j 1 Gale V. Miller, 54 N. Y. 536. Dearing, 41 id. 283; Ensminger v. 
 2Sylverstein v. Atkinson, 45 Miss. Marvin, 5 Blackf. 210; Miller v. Hiues, 
 81. 15 Ga. 197, 200; Gregg v. Fisher, 3 
 3 In SlierwoofI v. Snow, 46 Iowa, 111. App. 261 ; McMiillan u. Mackenzie, 
 481 (2 5 Am. Rep. 155). 2 G. Greene (Iowa). 308; Adams v. 
 <LeRoy v. Johnson, 2 Pet. 186, 197; Ruggles, 2-7 Kan, 237; Deitz v. Reg- 
 Jones V. Ri es, 3 Ala. 11; Knapp v. nier, 17 id. 94; Lindh v. Crowley, 29 
 McBride, 7 id. 19, 27; Jemison v. id. 756; Rochester t;. Trotter, 1 A. EI. 
 
 374
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 3G2. 
 
 § 3G2. shifting of tins 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 authorities, 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 partnership is not a commercial or 
 trading oqe, this fact is notice that a note not assented to 
 by all is unauthorized. This proof, then, 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. 2G5; Drake v. 
 
 Ky. 5 Litt. 271; Magill v. Merrie, 5 B. Elwyn, 1 Caines, 184; Doty v. Bates, 
 
 Men. 168; Hamilton v. Summers, 12 11 Johns. 544; Vallett v, Parker, 6 
 
 id. 11 (34 Am. Dec. 509); Walworth Wend. ■615; Whitaker v. Brown, 16 
 
 V, Henderson, 9 La. Ann. o39; Waldo id. 505; Farmers', etc. Bank v. 
 
 Bank »'. Greeiy, 16 Me. 419; Barrett Butchers', etc. B'k, 16 N. Y. 125, 
 
 V. Swann, 17 id. ISO; Davenport v. lo5; First Nat'l B'k v. Morgan, 73 N. 
 
 Davis, 22 id. 24; Thurston v. Lloyd, Y. 593 (aff. 6 Hun, 346); Nat'l Union 
 
 4 Md. 283; 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. Sc Bat. (N. Ca.) Eq. 
 
 facturer.s', etc. Bank v. Winship, 5 284; CiiafRn v. Challiu, 2 id. 255; 
 
 Picii. 11; Littell v. Fitch, 11 Mich. Foster v. Andrews, 2 Pa. 160; Hogg 
 
 525; Carrier v. Cameron, 31 id. 873 r. Orgill, 34 Pa. St. 344; McKinney v. 
 
 (18 Am. Rep. 192); Robinson v. Al- Bradbury, Dallam (Tex.), 441; Cro- 
 
 dri(>ge, 34 Miss. 352 ; Laler v. Jordan, zier v. Kirker, 4 Tex. 252 (51 Am. 
 
 44 id. 283; Sylverstein u. Atkinson, Dec. 724); Powell %i. Messer, 18 id. 
 
 45 id. 81; Hickman v. Kuukle, 27 401; City of Glasgow Bank v. Mur- 
 Mo. 401 (overruled on other points in dock, 11 Up. Can. C. P. 138; Stew- 
 Deardorf v. Thacher, 78 id. 128) ; art v. Parker, 18 New Brunswick, 223. 
 
 375
 
 §3GS 
 
 CONDUCT OF THE BUSINESS, 
 
 The rule imposing this burden upon the holder is nearly 
 universal.^ Many of the earlier American decisions an- 
 
 1 Leverson v. Lane, 13 C. B. N. S. 
 278 ; Re Riches, 5 N. R. 287 ; Rolstou 
 V. Click, 1 Stew. 526; Mauldin 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, CO id. 437; Lucas v. 
 Baldwin, 97 Ind. 471; Chenowilh u. 
 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, 
 2 Cush. 309 (48 Am. Dec. 6G6j ; Na- 
 tional Security B'k v. McDonald, 127 
 Mass. 82; Heffron 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. Kennady, 27 N. J. L. 230; Living- 
 ston V. Hastie, 2 Caines, 246 ; Dob v. 
 Halsey, 16 Johns. 34, 39 (8 Am. Dec. 
 293); 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, 8 N. Y. 408 ; Rust v. Han- 
 sel t, 9 Jones & Sp. 467 (aff d 76 N. Y. 
 614); St. Nicholas B"k v. Savery, 13 
 
 Jones & Sp. 97 ; Weed v. Richardson, 
 2 Dev. & Bat. L. 535; Himelright V. 
 Johnson, 40 Oh. St. 40; Porter v. 
 Gunnison, 2 Grant's Cas. (Pa.) 297; 
 Bowman v. Cecil Bank, 3 id. 33; 
 Bank of Tennessee v. SafTarrans, 3 
 Humph. 597; Powell v. Messer, 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, Flemming v. Piescott, 
 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 Icjwa, 433; 
 s. c. 41 id. 518, holding that a bank- 
 ing firm's guaranty is presumably by 
 authoi-ity. Fuller v. 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 lield 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 fur the 
 guilty partner, and tlie burden of 
 proof is on the creditor to show that 
 
 376
 
 PARTICULAR POWERS BEFORE DISSOLUTION, § 363. 
 
 nounce 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, 175, and that case 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. ^ 
 
 § 3G3. Ratification. — 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 maybe inferred from the common course 
 of business, previous dealings between the parties, or their 
 acts or omissions after knowledge is brought home to them. 
 
 The rule against using tlie 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 thu partner, are sufiicient; the 
 court in this case saying that slight evidence of assent is sufficient.' 
 
 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 Avas to bind all or none, 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 (35 Am. Dec. 566); Clark v. Dear- 
 indorsing a note mherently bad, or born, 6 Duer, 309. 
 he canuot recover from them. See 2 Wilson u. Williams, 14 Wend. 
 Williams v. Walbridg^, 3 Wend. 146; 28 Am. Dec. 518; Gray v. Ward, 
 415. 18 111. 32; Sutton v. Irwine, 12 S. & 
 
 1 Heath v. Sansom, 2 B. & Ad. 291 ; R. 13. 
 Hogg V. Skeen, 18 C. B. N. S. 426; 3 Warder u Newdigate, 11 B. Mon. 
 Wright V. Brosseau, 73 111. 381 ; Mun- 174 (52 Am. Dec. 567). 
 roe V. Cooper, 5 Pick. 412; Bank of ••Roberts' Appeal, 92 Pa. St. 407. 
 
 377
 
 § 3G5. CONDUCT OF THE BUSINESS. 
 
 § 304. by lialbit 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 pi-ivate 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 acliiiowledgmeiit. — A statement of the co- 
 partner to others that he had the note to pay and would pay it, 
 and bad 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 
 liability 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 cijcounts 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 Camp. 478; Whitmore, 10 Heisk. G29; 27 Am. 
 
 Palilmauu. Taylor, 75 111. 621); Ditts Rep. 733; Workman v. McKinstry, 
 
 V. Lonsdale, 49 Ind. 521 ; First Nat'l 21 Up. Can. Q. B. C23. 
 
 Bk. V. Bieese, 39 Iowa, 640; Bank of 2 Levy v. Pjne, Car. & Marsh. 453; 
 
 Ky. V. Brooking. 3 Littell, 41; Darl- Workman v. McKinstry, 21 Up. Can. 
 
 iiig V. March, 22 Me. 184 ; Porter v. Q. B. 623. 
 
 Wliite, 39 Md. 613; Ilayneru. Crow, 3 Jones v. Booth, 10 Vt. 26S. 
 
 79 Mo, 2U3; Holt v. Simmons, 16 Mo. 4 Butler v. Stocking, 8 N. Y. 408. 
 
 App. 97; Bank of Rochester u Bo wen, » Wheeler v. Rice, 8 Cusii. 205; 
 
 7 Wend. 158; Gansevoort v. Will- Rice v. Barry, 2 Cranch, C. C. 447. 
 
 iams, 14 Wend. 133; Steuben Co. epiagg v. Upham, 10 Pick. 147. 
 
 Bank v. Alburger (N. Y. 18S0), 4 N. E. ^ Bei ryliill v. McKee, 1 Humph. 31. 
 
 Rep. 341; Bank of Tennessee v. Saf- 8 Burleigh v. Parton, 21 Tex. 585. 
 
 farrans, 3 Humph. 597; Scott v. 9 Clark v. Hyman, 55 Iowa, 14. 
 Bandy, 2 Head, 197; Pooley v. 
 
 378
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 3GG. 
 
 A guaranty signed in tlie firm name hy one partner is not void 
 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 npon 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 
 tlie consideration.* 
 
 In Stearns v. Burnham, 4 Me. 81, 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. C. 447. And if the con- 
 and see^§ 3(53, 3G4; Moranu. Prather, tract of purchase of goods by a firm 
 23 Wall. 492; and see Princeton & be tliat the price may be credited 
 Kingston Tp. Co. v. Guhck, IG N. J. upon the debt of one partner, it is 
 L. 161 ; Cockroft v. Clafliu. 64 Barb, valid, tliough oral, of course, as au 
 464 (nffd. in 53 N. Y. 618); Butler u. original contract designating the 
 Stocking. 8 N. Y. 408. mode of payment, Rhodes v. Mc- 
 
 2 In Taylor v. Hillyer, 3 Blackf. Kean, 55 Iowa, 517. If an act in 
 433 (26 Am. Dec. 430), and Wagnon the name of the firm by one partner 
 V. Clay, 1 A. K. Mar. (Ky.) 257. outside the scope of the business is 
 Contra, McGill v. Dowdle, 33 Ark. adopted by tlie firm, or they receive 
 311; Marsli V. Gold, 2 Pick. 285; the benefit of it, their oral raiifica- 
 Jones V. Booth, 10 Vt. 268; and see tion or 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, 32 La. Ann. 
 pay a debt of his copartner, in con- 532. Contra, Wilson v. Dosier, 53 
 sideration of the creditor's forbear- Ga. C02. 
 ance to levy upon the firm's assets, ^See § 505. 
 was held valid in Rice v. Barry, 2 
 
 379
 
 § 3GS. 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 given 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 authority 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 Dudley u Littlefield, 21 Me. 418; SReubin v. Cohen, 48 Cal. 545; 
 
 Porleru Curry, 50 III. 319. Roberts v. Barrow, 53 Ga. 314; 
 
 ^Flagg V. Upham, 1(» Pick. 147; Svveetser v. French, 2 Cush. 309, 315 
 for other assumptions of the debt (48 Am. Dec. 6GG); Foster v. An- 
 sae Cockroft V. Clallin, 64 Barb. 464 drews, 2 Pa. 160; Woodward t;. Win- 
 (aff'd, vvitliout opinion, in 53 N. Y. ship, 12 Pick. 430. 
 618); Be. Dunkle, 7 Bankr. Reg. 107. 6 Early v. Reed, 6 Hill, 12; McGuire 
 
 3 Davis V. Cook, 14 Nev. 265. V. Blanton, 5 Humijli. 361 (llie stat- 
 
 ^Tyree v. Lyon, 67 Ala. 1 ; Hendrie utc of limitations being different in 
 V. Berkovvitz, 37 Cal. 113; Marsh v. tliis state as to indorsers and co- 
 Thompson Nat'l Bk. 2 111. App. 217; makers). 
 
 Ilayes v. Baxter, 65 Barb. 181. 7 Bray ley r. Hedges, 53 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. g 370. 
 
 SO placed as to render their apparent legal obligations infer 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 Avell as signing, to constitute it a 
 note.* 
 
 § 369. declarations. — Thedeclarationsof the guilty part- 
 ner at the time of giving the firm's note for the debt of another 
 firm, that the former had asssumed the debts of the latter, or had 
 received a consideration, are not admisrible against his copartners.'' 
 
 Nor is a prior agreement to guaranty, signed in the handwriting 
 of the partner who subsequently gave the guaranty.* 
 
 Conversations and transactions between the partners at dissolu- 
 tion and attempted settlement in the absence of the payee, show- 
 ing that the iunocent 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 Stroll V. Hiuchman, 37 Mich. 490. 574. Contra, Chenango Bank v. 
 
 2 United States v. Astley, 3 Wash. Hyde, 4 Cow. 567. 
 
 C. C. 508. ' Kaiser v. Fend rick, 98 Pa. St. 528 ; 
 
 3 Mercein v. Andrus, 10 Wend. 461. Heffron v. Hanaford, 40 Mich. 305. 
 ■* Hatheway's Appeal, 53 Mich. 112. 8 Osborne v. Stone, 30 Minn. 25. 
 5Guice 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. 420). 
 
 381
 
 
 0. 
 
 CONDUCT OF THE BUSINESS. 
 
 raercial 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 use. 
 
 1 See supra, Bills and Notes. 
 
 2 See § 403. 
 
 !<Rothwell V. Humphreys,! Esp. 
 
 lins, 115 Mass. 388; Faler v. Joi'dan, 
 44 Miss. 283; Bascora v. Young, 7 
 Mo. 1 ; Roney v. Buckland, 4 Nev. 
 
 406; Thicknesse y. Bromilow, 2 Cr. 45; Church v. Sparrow, 5 Wend. 223; 
 
 & J. 4:^5 ; Lane v. Williams, 2 Vern. 
 277. 292; Denton v. Rodie, 3 Camp. 
 493; Ex parte Bonbonus, 8 Ves. 510; 
 
 VVhitaker v. Brown, 16 id. 505; On- 
 ondaga Co. Bank v. DePuy, 17 id. 
 47; Miller v. Manice, 6 Hdl, 119; 
 
 Lloyd V. Fresh field, 2 C. & P. 383; Seybold v. Green wald, 1 Disney, 425; 
 
 Brown v. Kidger, 3 H. & N. 853; 
 Winship v. Bank of U. S. 5 Pet. 529, 
 563; 5 Mason, 176; Saltmarsh v. 
 Bower, 22 Ala. 221 ; Howze v. Pat- 
 terson, 53 Ala. 205 (25 Am. Rep. 607); 
 Wagner v. Simmons, 61 id. 143; 
 Decker u Howell, 42 Cal. 636; Pahl- 
 man v. Taylor, 75 111. 629; Walsh v. 
 Lennon, 98 111. 27 (38 Am. Rep. 75) ; 
 Gregg V. Fisher, 3 111. App. 201; 
 Hunt V. Hall, 8 lud. 215; Leffler v. 
 Rice, 44 id. 103; Sherwood v. Snow, 
 46 Iowa. 481 (26 Am, Rep. 155); 
 Deitz V. Regnier, 27 Kan. 94; Lindh 
 V. Crowley, 29 id. 750; Emerson v, 
 Harmon, 14 Me. 271; Etheridge v. 
 Binney, 9 Pick. 272; Smith v. Col- 
 
 882 
 
 Gano V. Samuel, 14 Oh. 593; Klein- 
 haus V. Generous, 25 Oh. St. 667; 
 Benninger v. Hess, 41 id. 64; Hoskis- 
 son V. Eliot, 62 Pa. St. 893 ; Steel v. 
 Jennings, Cheves (S. Ca.), 183; Ford 
 V. McBryde, 45 Tex. 498 ; Michael v. 
 Workman, 5 W. Va. 391. See, also, 
 the cases cited under Power to Give 
 Bills and Notes, § 341. 
 
 4 Morse v. Hagenah (Wis.), 33 N. 
 W. Rep. 634; Andrews v. Congar 
 (Supreme Ct. U. S. 1881), 20 Am. 
 Law Reg. (N. S.) 328; Lawyers' 
 Coop. Book, 26, p. 90, noticed fully 
 under § 349. 
 
 5g446.
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 371. 
 
 And that where one partner borrows money not expressly upon 
 his individnal 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 confineci strictly to trading partnerships, and does 
 not exist in non-trading firms unless specially granted, 
 either by the articles oc 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.' 
 
 ig447. C. P. 391; Wilson v. Brown, 6 Ont. 
 
 2 §443. App. 411. See Freeman v. Carpen- 
 
 3 §348. ter, 17 Wis. 126. 
 
 ^Forster v. Mackreth, L. R. 3 Ex. 5 ijg Worcester Com Exchange Co. 
 
 168; Plumer v. Gregory, L. R. 18 3 DeG. M. & G. 180. And see § 322. 
 
 Eq. 621; Pease V. Cole, 53 Conn. 53; Contra, if for the purchase of sup- 
 
 Ulery v. Ginrich, 57 111. 531; Bays piles essential to prosecution of the 
 
 V. Conner, 105 Ind. 415; Breckin- enterprise. Gavin u Walker, 14 Lea. 
 
 ridge v. Shrieve, 4 Dana, 375 ; Davis 643. 
 
 V. Richardson, 45 Miss. 499 ; Prince 6 Greenslade v. Dower, 7 B. & C. 
 
 V. Crawford, 50 id. 344 ; Hunt v. 635. See, also, § 446. 
 
 Chapin, 6 Lans. 139; Crosthvvait v. ^ Fisher v. Tayler, 2 Hare, 218. 
 
 Ross, 1 Humph. 23 (34 Am. Dec. The apparent inconsistency in the 
 
 613; McCord v. Field, 27 Up. Can. phrase borrow to increase capital, 
 
 383
 
 § STJJ. CONDUCT OF THE BUSINESS. 
 
 §372. Form of borrowing. — A partner's right to raise 
 money for the Arm 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 is on individual ^Ganou Samuel, 14 Oh. 593. 
 
 credit, is noticed by Mr. Lindley, ^ Roney t\ Buckland, 4 Nev. 45. 
 
 Partnership, p. 274. ^ Adee v. Demorest, 54 Barb. 433. 
 
 1 Miller v. Consolidation Bank, 48 ^Carnesu White, 15 Gray, 378. 
 
 Pa. St. 514; Moorehead v. Gilmore, « Dillon v. McRae, 40 Ga. 107. 
 
 77 Pa. St. 118; 18 Am. Rep. 435; See Chandler v. Sherman. 16 Fla. 99. 
 
 Manning v. Hays, 6 Md. 5 ; Emerson ^ Ford v. McBryde, 45 Tex. 498. 
 
 V. Harmon, 14 Me. 271. lo Chandler v. Sherman, 16 Fla. 99. 
 
 2Deitz 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, g 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 payment.^ 
 
 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 flrnis. — It is difficult to conceive of 
 a partnership wiiich 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 bo7iafide 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 iin 
 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 t?. Northwestern Va. R.. 
 V. Gibson, 1 Camp. 185, where R. Co. 16 Md. 422; Goode v. Line- 
 one of a firm of harness makers cum, 1 How. (Miss.) 281 ; Livingston 
 bought on the firm's credit bits v. Roosevelt, 4 Johns. 251 ; 4 Am. 
 f oi making bridles, but appropriated Dec. 273 ; BViggs v. Hubert, 14 S. 
 t!iem to his own use ; Ala. Fertilizer Ca. 620 ; Venable v. Levick, 2 Head, 
 Co. V. Reynolds, 79 Ala. 497; Dick- 351; Bankhead v. Alloway, 6 Cold. 
 son V. Alexander, 7 Ired. L. 4 ; Ven- 56 ; Eraser v. McLeod, 8 Grant's Ch. 
 able V. Levick, 2 Head, 351. (Up. Can.) 268. 
 
 2 Irwin V. Williar, 110 U. S. 499, 38 C. & P. 345. 
 505; U. S. Bank v. Binney. 5 Mason, * Wilson r. Whitehead, 10 M. &W. 
 
 176; Wagnon v. Clay, 1 A. K. Mar. 50;). 
 Vol. 1 — 25 3S.>
 
 § ;{74. 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, 491, 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 bj' a person dealing with one partner. 
 
 One of a mining firm can bind it for purchases essential to carr^' 
 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 ma}' purchase supplies;^ one of a firm running a 
 saw-mill may purchase necessary groceries 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, 42 Cal. 180 ; Man- 2 Kenney v. Altvater, 77 Pa. St. 34 
 ville V. Parks, 7 Colorado, 128. And « Gavin v. Walker, 14 Lea, 643. 
 see Higgins v. Armstrong, 10 Pac. < Johnston u. Button, 27 Ala. 245, 
 Rep. 332. 
 
 886
 
 ■ PARTICULAR POWERS BEFORE DISSOLUTION. § 874. 
 
 hausted when the drove is bought, 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-mill bought a lot of chopped corn, repre- 
 senting that it was required in the business; and this, with proof 
 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, 44 Ind. 103, and Folk 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 V. 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 number less than all to buy lands, one 
 partner purchased additional lands in the name of the firm, and 
 drew on the others for the purchase money, and the vendors 
 brought an action on their refusal to pay the drafts. It Avas held 
 that, being a non-commercial partnership, the plaintiff 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 tiuie withhold such power from a single 
 partner, and the plaintiff cannot recover. 
 
 In a partnership to buy and sell lands any partner has the right- 
 to buy land for the firm, and bind the members for payment.* 
 
 In Davis v. Cook, 14 Nev. 265, 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. 263 2 Sage v. Sherman, 2 N. Y. 417, 432, 
 (38 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 carry 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 within 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 fuel 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, SNichol t>. Stewart, 36 Ark. 612; 
 404. but see Morgan v. Pierce, 59 Miss. 
 
 2 Miller v. Hines, 15 Ga. 197, 201. 210. 
 
 sCrosthwait v. Ross, 1 Humph. 23 SKenney r. Altvater, 77 Pa. St, 84; 
 (84 Am. Dec. C13). Crosswell v. Lehman, 54 Ala. 563. 
 
 ♦Brooke r. Washington, 8 Gratt. ■< Henry v. Anderson, 77 Ind. 861. 
 248. 8 Moss V. Riddle, 5 Cranch, 351, 
 
 388
 
 PARTICULAR POWERS BEFORE DISSOLUTION. g •)-«. 
 
 authorized the vendor to deliver goods to one F. C, a young relative 
 of the partners and once 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. varying 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 pay.' 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 benefit 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- 6 gee § 323. 
 ler, 4 E. D. Smith, 469. ' § 305 et seq. 
 
 2 See § 408, and Leiden v. Law- 8 1^ ise. 
 rence. 2 N. R. 283 ; Detroit v. Robin- » § 205. 
 son, 42 Mich. 198. logg 80, 446. 
 
 3 De Tastet v. Carroll, 1 Stark. 88. " §§ 316-339. 
 
 4 Wilson V. Elliott, 57 N. Y. 316. 1^§ 447. 
 8 Huguley t\ Morris, 65 Ga. 666. 
 
 3S9
 
 ^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 PARTNER. 
 
 § 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 to the 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 
 
 i§447. Ex. 163: Bull v. O'Sullivan, L. R. 6 
 
 2§ 348. Q. B. 209; Commercial Nat. Bank v. 
 
 i See Forster v. Mackreth, L, R. 2 Proctor, 98 111. 558. 
 
 390
 
 PARTICULAR POWERS BEFORE DISSOLUTIOxX, § 377. 
 
 of the business and beyond the true hmits 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- 
 
 *The following are the authorities ridge, 11 Oh. 233; Richardson v. Ful- 
 denying to a partner the power to lor, 2 Oreg. 179; Gerard v. Basse, 1 
 execute a warrant to confess judg- Dull. 119; Bitzler v. Shunk, 1 Watts 
 nient against the firm without the & S. 340; 37 Am, Dec. 4(J9; Cash v. 
 assent of the copartners: Hambridge Tozer, 1 Watts & S. 519; Harper v. 
 V. De la Crouee, 3 C. B. 742 ; Hall v. Fox, 7 W. & S. 143 ; York Bank's 
 Lanning. 91 U. S. 160,170; Elliott u. Appeal, 36 Pa. St. 458; Trenwith 7>. 
 Holbrook, 33 Ala. 659; Wilcoxson r. Meeser, 12 Phila. 366; Hoskisson v. 
 Burton, 27 Cal. 228; Green v. Rand, Ehot. 62 Pa. St. 393; Mills v, Dick- 
 2 Conn. 254; Sloo v. State Bank of 111. son, 6 Rich. (S. Ca.) L. 487; Shedd v. 
 2 111. 428 ; Barlow r. Reno, 1 Blackf. Bank of Brattleboro, 32 Vt. 709, 
 253; Hopper v. Lucas, 86 Ind. 43; Remington u. Cummings, 5 Wis. 138; 
 Christy v. Sherman, 10 Iowa, 535; Holme u. Allan, Tayl. (Up. Can.) 348; 
 Edwards v. Pitzer, 13 Iowa, 607; Huff v. Cameron, 1 Up. Can. Prac. 
 North V. Mudge, 13 Iowa, 596; Rep. 355; Canada Lead Mine Co. v. 
 Rhodes v. Amsinck, 38 Md. 345, 354; Walker, 11 Low. Can. 433, 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; 57 Am. Dec. member to secui'e the loan by a 
 235; Flannery v. Anderson, 4 Nev. sealed power to confess judgment. 
 437; EIUs v. Ellis, 47 N. J. L. 69; Hoskisson v. Eliot, 63 Pa. St. 393. 
 Green r. Beals, 3 Caines, 254; Crane Even if the warrant to confess is 
 V. French, 1 Wend. 311; Stouten- signed by two persons, it is pre- 
 burgh V. Vandenburgh, 7 How. Pr. sumably for their individual indebt- 
 229; Everson v. Gehrman, 10 id. 301 ; edness, unless proved to be for part- 
 Lambert V. Converse, 22 id. 265; nership debt. McKenna's Estate, 11 
 Bridenbecker v. Mason, 16 id. 203; Phila. 84; EUinger's Appeal (Pa.), 7 
 McKee v. Bank of Mt. Pleasant, 7 Atl. Rep. 180. 
 
 Oh. 3d pt. 175; McNaughten v. Part- 2 Richardson v. Fuller, 3 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. Asseut 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.^ 
 
 § 3 7 9. Yalid against the partner in fault. — The judgment, 
 however, is valid aganist the party who executed the power, 
 and binds his individual property and his individual interest 
 in the partnership property, the same as any other separate 
 judgment.^ 
 
 1 Gerard v. Basse, 1 Dall. 119; cau complain, for the former may 
 Green v. Beals, 2 Caines, 254; ratify. Hamilton's Appeal, 103 Pa. 
 McNaughten v. Partridge, 11 Oh. St. 368; Grier v. Hood, 25 id. 430. 
 223; Remington v. Cummings, 5 But if the confession is in favor of 
 Wis. 138; Ellis v. Ellis, 47 N. J. L. the separate creditor of the iudivid- 
 69. And the warrant 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 tiiey can attack 
 69; Hoskisson v. Eliot, 62 Pa. St. it collaterally on distribution of the 
 393; Shedd v. Bank of Brattleboro, fund realized. MuNaughton's Ap- 
 82 Vt. 709; Cash v. Tozer, 1 Watts & peal, 101 Pa. St. 550. 
 
 S. 519. 3 Brutton 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 judgment 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, 3 Up. Can. 
 nership property, Kneib v. Graves, Prac. Rep. 205. 
 
 72 Pa. St. 104; Ross v. Howell, 84 « Record r. Record, 21 New Bruns- 
 Pa. St. 129, Even if the partner wick, 277. 
 
 confessed the judgment in favor of "> Wilcoxson v. Burton, 27 Cal, 22 \ 
 himself as guardian. Hamilton's 8 Gerard u Basse, 1 Dall. 119; Hop- 
 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 v. Am- 
 
 393
 
 PARTICULAR POWERS BEFORE DlSbOLUTiON, § 3S0. 
 
 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, — The English 
 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 partner 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, which 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 
 
 Binck, 38 Md. 345, 354; Flannery v. all powers of attorney to confess 
 
 Anderson, 4 Nev, 437; Green V. Beals, judgment, the judgment was held 
 
 2 Gaines, 254; Grane v, Freneli, 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.), 2 Mills v. Dickson, 6 Rich. (S. Ca.) L. 
 
 Atl. Rep. 218; Bitzer v. Shuuk, 1 487. 
 
 Watts & S. 340 ; 37 Am. Dec. 469. 3 See Hambridge v. De la Grouee, 
 
 And see g 421. But see Trenwith v. 3 C. B. 732. 
 
 Meeser, 12 Phila. 366. * Hambridge v. De la Grouee, supra. 
 
 iGraner. French, 1 Wend. 311. In And so where three partners had 
 60 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 tlie 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. 3,'2. 
 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 
 
 2d pt. 175. And see Morgan v. Rich- was irresponsible, the court refusing 
 
 a rdson, 16 Mo. 409; 57 Am. Dec. 235; to go behind the record to inquire 
 
 Thompson v. Eramert, 15 111. 415; into the authoiMty. Hammond v. 
 
 Everson v. Gehrman, 10 How. Pr. Harris. 2 How. Pr. 115. Contra, if 
 
 301. * he is irresponsible. Groesbeck v. 
 
 1 Morgan v. Richardson, 16 Mo. Brown, 2 How. Pr. 21. In St. John 
 409; 57 Am. Dec. 235; Ellis v. Ellis, v. Holmes, 20 Wend. 60E), the court 
 47 N. J. L. 69; Christy v. Sherman, refused to set aside the judgment on 
 10 Iowa, 535; Green v. Beals, 2 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, 32 Vt. 709. Stoutenburgh v. Vandenburgh, 7 
 
 3 Remington r. Curamings, 5 Wis. How. Pr. 229, the juilgment was 
 138. said to be void as to tbose who did 
 
 * Elliott V. Holbrook, 33 Ala. 659. not authorize it ; and on confession 
 
 In an action 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 i?. -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 Gehrman, 10 How. Pr. 301 ; 1 Abb. 
 
 judgment against the firm. Graze- Pr. 107, where the judgment was 
 
 brook V. McCreedie, 9 Wend. 437; against the explicit and known wishes 
 
 Pardeeu. Haynes, 10 Wend. 031; War- of the other partner. Of course, in 
 
 ingu. Robinson, Hoff. (N. Y. j Ch. 524; case of collusion, the creditors could 
 
 Blodget u. Conklin, 9 How. Pr. 442; attack the judgment. Stoutenburgh 
 
 Leahey v. KingAn, 22 How. Pr. 209 ; v, Vandenburgh, siqjra. An appear- 
 
 s. C. asLahey v. Kingon, 13 Abb. Pr. ance in admiralty by a proctor for 
 
 192; Binney V. Le Gal, 19 Barb. 592; all the defendants is sulHcient, al- 
 
 1 Abb. Pr. 283. But even this rule though no authority for one is shown, 
 
 as to pending cases does not apply Hills v. Rose, 3 Dull. 331. 
 where the partner seeks to confess 5 Edwards v. Pitzer, 12 Iowa, 60. 
 
 in person and not by attorney, for Remington v. Curamings, 5 Wis. 13" : 
 
 there is no presumption of authority Elliott v. Holbrook, 33 Ala. 659. I 
 
 then. Binney u. Le Gal, swpra. Tlie the record states that the cojnov i 
 
 English rule was applied where there was "by the defendants," this Ja 
 
 394
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 381. 
 
 After dissolution there is, of course, no such 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 aud receipt for debts due to firm. 
 
 Each partner in every firm has implied power to collect thi.' 
 debts due the firm. This follows from necessity, for tlu 
 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 
 sale was ordered to pa}'' 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 u. Garner, 156; Stead v. Salt, y Bing. 103; Re 
 
 31 Miss. 145. Barrett, 2 Huglies, 444; Williams v. 
 
 1 Rathbone v. Drakeford, 4 Moo. «& More, 63 Cal. 50; Brown v. Law- 
 P, 57; Mitchell v. Rich. 1 Ala. 228; rence, 5 Conn. 397; Noyes v. New 
 Waring v. 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, 2 Miles man, 11 111. 14; Granger v. McGilvra, 
 (Pa.), 436; Canada Lead Mine Co. v. 24 id. 152; Steele v. First Nat'l B'k, 
 Walker, 11 Low. Can. 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 v. Jones, 14 La. Ann. 681 
 judgment in the firm name, and ex- Cod man v. Armstrong, 28 Me. 91 
 ecution against the firm property Vanderburg v. Bassett, 4 Minn. 242 
 thereon will be set aside. Castle v. Morse v. Bellows, 7 N. H. 568; Black 
 Reynolds, 10 Watts, 51 ; but query, v. 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 Soiies) 060. Hence a note to one 
 C. & P. 108; McKee v. Stroup. Rice, partner of a creditcr firm by a debtor 
 291 ; Tomlin V. Lawrence, 3 Moo. & of the partnership has the same 
 
 S95
 
 S 382. CONDUCr 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 k 
 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 dej^osit so made by the 
 maker, Jacaud & Gordon sued the acceptor. Lord EUeuborough 
 held that Jacaud, as a partner of Blair, must be deemed to have 
 received the funds from 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.' 
 
 We have elsewhere* seen that the right 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 con- 
 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. Baiter, 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. Robinson 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 Fed. Rep. 575. 
 a bank account due the firm may be 3 jacaud v. French, 13 East, 317. 
 transferred to the bank's successor. 4^326. 
 Beale v. Caddick, 2 H. & N. 326. 5 For the power to trade out debts 
 
 1 Steele v. First Nat'l Bank, GO 111. 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 ^ Tomliu v. Lawrence, 3 Moo. & P. 
 made to the firm and indorsed by it 555 ; Coursey v. Baker, 7 Har. & J. 23 ; 
 
 896
 
 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 
 firm to collect, pa}' the firm and give the debtor the balance, but 
 uses the 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 difificult to ascertain. 
 
 216. See Hogan V. Reynolds, 8 Ala. ^ Brink v. New Amsterdam Ins. 
 
 59. Co. 5 Robt. (N. Y.) 104. 
 
 * Brown v. Lawrence, 5 Conn. 397. ^ Brown v. Hartford F. Ins. Co. 
 
 * Noyes v. Newhaven, etc. R. R. 30 117 Mass. 479. 
 
 Conn. 1; Doremus v. McCormick, 7 ^ German Bank v. Schloth, 59 
 
 Gill, 49; Piersonu. Hooker, 3 Johns. Iowa, 516. 
 
 70; Cunningham v. Littlefield, 1 ^Lee v. Hamilton, 13 Tex. 413. 
 
 Edw. Ch. 104. This doctrine is, how- Contra, see dictum in Vanderburgh 
 
 ever, so entangled with the doctrine v. Bassett, 4 Minn. 242. 
 
 that one partner having by settle- 9 Lee u. Hamilton, 12 Tex. 413, 418; 
 
 ment with a debtor disqualified him- Warder u. Newdigate, 11 B. Mon. 174, 
 
 self from suing, the firm is also 177; 52 Am. Dec. 567. 
 
 307
 
 § 3S3. 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 
 liim as a trustee who buys in the trust propertj^ 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 involved 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 
 
 1 Michigan AirLineR'y v. Mellen, 44 Ex parte Hall, 1 Rose, 2; Ex parte 
 Mich. 321; Loweiy u. Drew, 18 Tex. Bignold, 2 Mont. & A. 633, 655; Re 
 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 ; * 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 192; Furnival v. Weston, 7 id. 356; 
 
 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 replonisli the stock of groceries. Phillips u. CIngett, 11 id. 84: Nottidge 
 
 2 Russell V. Green, 10 Conn. 269. v. Prichard, 2 CI. & Fin. 379; Dyer v. 
 
 sSeet-g 405-468. Sutherland, 75 III. 583: Emerson v. 
 
 *Ex parte Mitchell, 14 Ves. 597; Knower, 8 Pick. 63; Bulkley v. Day- 
 Ex parte Hodgkinson. 19 id. 291, 293; ton, 14 Johns. 387. And see g 396. 
 Ex parte Shaw, 1 Glyn & Jam. 127: * Barker r. Richardson, 1 Younge& 
 Ex parte Bank of England, 2 id. 363; J. 362, 366; Arton u. Booth, 4 Moore.
 
 PARTICULAR POWERS BEFORE DISSOLUTION. g 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 
 courts 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 $.3,000, 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 
 lien 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 the 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, 
 
 192; Furnival v. Weston, 7 id. 356; Loring r. Brackett, 3 Pick. 403. And 
 
 Langdcile 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. 120; Wilson But where a statute provides that a 
 
 V. Mower, 5 Mass. 411; Noouanv. Or- non-consenting joint claimant may 
 
 ton, 31 Wis. 265. be made defendant, the objecting 
 
 1 Arton V. Booth, 4 Moo. 192. partner may be allowed to withdraw 
 
 2 Romain v. Garth, 3 Hun, 214. and tlie court will permit the other 
 
 3 Barker v. Richardson, 1 Y. & J. partners to make him a defendant. 
 362; Jones v. Herbert, 7 Taunt. 421 ; Noonan v. Orton, 31 Wis. 265. 
 Phillips V. Cl.igett, 11 M. & W. 84; & Barker v. Richardson, 1 Younge 
 Loring V. Brackett, 3 Pick. 403; & J. 362; Beatson v. Harris, 60 N. 
 Noonan v. Orton, 21 Wis. 265; Sloan H. 83; Sweet v. Morrison, 103 N. Y. 
 V, McDowell, 71 N. Ca. 356, 359-61. 235; Noonan v. Orton, 31 Wis. 265. 
 And see Skaife v. Jackson, 1 B. & C. And see Loring v. Brackett, 3 Pick. 
 421. 403. 
 
 < Cunningham v. Carpenter, 10 Ala. ^Canal Co. v. Gordon, 6 Wall. 561. 
 109; Daniel v. Daniel, 9 B. Mon. 195; 
 
 399
 
 § 3S3. CONDUCT OF THE BUSINESS. 
 
 and can make the debtor pay this 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 avoid circuity of action, if no injustice would 
 be done, it might be treated as a release in a proper case, just as a 
 set-off, 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. & F. made 
 a demand note to the partner B.; afterwards F. 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 buit 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. 4 Deux v. Jeffries, Croke's Eliz. 
 
 See Longman v. Pole, 1 Moo. & M. 223, 352. 
 
 that the other partners can jointly SBrayley v. Goff, 40 Iowa, 76. 
 
 sue a third person 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- 
 
 that 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 repudiate 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 §^ 1035-1048. he had sold his interest in the ma- 
 
 2\Valmsley r. Cooper, 11 A. & E. chine was held fraudulent. Dunck- 
 
 21G; 3 Per. & Da v. 149; Emerson v. lee v. Greenfield Steam Mill Co. 3 
 
 Baylies, 19 Pick. 55. And see § 385. Foster, 245, 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 witho^it 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 deftjat an action and to subserve his private ends will not be per- 
 mitted to be set up as a defense.^ 
 
 § 084. Debts due from the firm. — Each member of the 
 firm has implied power to pay its debts.* 
 
 In Bray v. Morse, 41 Wis. 343, 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 
 back. 
 
 1 Kendal v. Wood, L. R. 6 Ex. 248; 
 Farrar v. Hutclunson, 9 Ad. & El. 
 Ml ; Barker v. Richardson, 1 Younge 
 & J. 3.2; Piercy v. Fynney, L. R. 
 12 Eq. C9 ; Harper v. Wrigley, 48 Ga. 
 49r); Casey v. Carver, 43 III. 2':5; 
 Bennett V. District Twp. of Colfax, 
 53 Iowa., 089; Jackson v. Holloway, 
 14 B. Mon. 108; Williams v. Brim- 
 hall, 13 Gray, 463; Craig V. Hul- 
 Bchizer. 34 N. J. L. 33 i : Chase v. Buhl 
 Ironworks, 55 Mich. 139; Gram v. 
 Cadvvell, 5 Cow. 489; Evernghim v. 
 Ensworth, 7 Wend. 336; Beudel V. 
 Ilettrick. 45 How. Pr. 19S; Broaddus 
 V. Evans, 63 N. Ca. 633 ; Thomas v. 
 Pennrich, 28 Oh. St. 55; Clark v. 
 Sparhawk (Pa.), 2 Weekly Notes, 
 115; Viles v. Bangs, 36 Wis. 131 ; and 
 see §^ 410, 411. As to ratification, 
 see § 427. Contra, sustaining the 
 power to do so: Combs v. Boswell, 1 
 Dana, 473 (dictum) ; Ovvings v. Trot- 
 ter, 1 Bibb, 157; Beckham u Peay, 2 
 Billey (S. Ca.), L. 133; Hells v. Coe, 
 4 McCord, L. 133. In Lamb v. Saltus, 
 3 Brev. (S. Ca.) 130, the court were 
 equally divided. 
 
 2Lunt V. Stevens, 24 Me. 534. And 
 see Gram v. Cadvvell, 5 Cow. 489; 
 Combs u. Boswell, 1 Dana, 473. See 
 Legh V. Legh. 1 B. & P. 447. 
 
 3 Barker v. Richardson, 1 Younge 
 & J. 363; Gram v. Cad well, 5 Cow. 
 489. A composition of the debts of 
 an insolvent debtor was signed by 
 his creditors, among them by E., but 
 it did not appear whether his signa- 
 ture was intended to apply to a debt 
 due him individually or a debt due 
 his firm. It was considered to in- 
 clude the latter, and the burden is 
 on the firm to show the contrary. 
 Emerson v. Knower, 8 Pick. 63. See 
 Rice V. Woods, 21 Pick. 30; and Ilal- 
 sey V. Whitney, 4- Mason, 200. 231. 
 
 ^Innes v. Stephenson, 1 Moo. & 
 Ry. 145; Cheap v. Cramond, 4 B. & 
 Aid. 603; Cannon v. Wiklman, 23 
 Conn. 473, 493; Murrell v. Murrell, 
 33 La. Ann. 1233; AveriU v. Lyman, 
 18 Pick. 351 ; Tapley v. Butterfield, 1 
 Met. 515; 35 Am. Dec. 374; Osborn 
 V. Osborn, 30 Mich. 48; Tyson v. 
 Pollock, 1 Pa. 375 ; Moist's Appeal, 
 74 Pa, St. 106; Scott v. Shipherd, 3 
 Vt. 104. And see cases under § 386 
 et seq. 
 
 Vol. 1-23 
 
 401
 
 § 3S5. CONDUCT OF THE BUSINESS. 
 
 that tho firm had given B. collaterals on part of which he had 
 realized, but 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 tho 
 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 coUat- 
 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 plaintifi" 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 Iby creditor. — The general 
 rule, both of law and equity, that a release of one joint 
 debtor from liability releases all, a fortiori applies to dis- 
 charge copartners.* 
 
 1 Whether a partner can keep a Elliott u Holbrook, 33 Ala. 659, 667; 
 debt alive for his own benefit after Kendrick v. O'Neil, 48 Ga. 631 ; Will- 
 he has paid it, see § 531. iamson v. McGinnis, 11 B. Mon. 74; 
 
 2 Lacy V. McNeile, 4 Dow. & Ry. 7: Tuckerman v. Newhall, 17 Mass. 581 ; 
 Peyton v. Stratton, 7 Gratt. 880. American Bank v. Doolittle, 14 Pick. 
 
 3 Anon. V. Layfield, Holt, 434. As 123, 126; Rice v. Woods, 21 id. SO. 
 to the effect of a promise by one 33; Le Page v. McCrea, 1 Wend. 164; 
 partner upon the statute of limita- 19 Am. Dec. 469; Burson u. Klncaid, 
 tions, see S§ 702-705. 1 Pa. (Pen. & W.) 57. To be effect- 
 
 * Cocks V. Nash, 9 Bing. 341 ; ual, such a release must have a 
 Cheetham v. Ward, 1 B. & P. 630; consideration, but the promise of 
 United States v. Thompson, Gilpin, the other partners to be sofely re- 
 614; Willings v. Consequa, Pet. C. C. sponsible is a consideration. See 
 301, 307; Gray i;. Brown, 22 Ala. 262; §505. Whether release of a per- 
 
 402
 
 FARTICULAR POWERS BEFORE DISSOLUTION. § 3S5. 
 
 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, eitlier lor 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 partner 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); Keudrick v. O'Neil, 
 
 jointly with another depends on the 4S Ga. G31; Sliotweli v. Miller, 1 N. 
 
 intention of the parties as shown by J. L. 95 [81]. 
 
 the terms of the release. A release ^Dean v. Newhall, 8 T. R. Ifi8; 
 of all causes of actions, suits, debts, Walmesly v. Cooper, 11 Ad. & El. 
 etc., which the releasors now have 216; Roberts v. 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. McCulloch, 4 Me. 421; Luut v. 
 world, includes h'abilities as partner, Stevens, 24 id. 534 ; McLellan v. Cum- 
 Hall V. Irons, 4 Up. Can. C. P. 351. berland Bank, 24 Me. 5G6; Shaw v. 
 A release of a partner from all Pratt, 22Pick. 305; Bemisv. 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, 2 Johns. 44y; Rowley r. 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; DeZeng v. 
 to 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 ; 1 Ld. Raym. G88 ; Hut- 
 creditor was the debtor's dormant ton v. Eyre, 6 Taunt. 289; Price v. 
 partner and this fact was concealed. Barker, 4 E. «fc B. 760; Durell v. 
 Carter v. Connell, 1 Whart. 392. Wendell, 8 N. H. 369; Couch v. Mills, 
 
 1 Evans v. Carey, 29 Ala, 99; Fagg 21 Wend. 424. 
 
 V. Hambel, 21 Iowa, 140. * Witter v. Richards, 10 Conn. 37. 
 
 2 Berry v. GiUis, 17 N. H. 9 (43 
 
 403
 
 § 387. CONDUCT OF THE BUSINESS. 
 
 § 380. 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 releasee. • 
 
 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 McCrillis^;. 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 hability 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, 2 Brod. & Bing, ler r. Herrick, 19 Johns. 129; Bank 
 38. And see the following cases: of Chenango v. Osgood, 4 Wend. 
 Thompson v. Springall, 3 C. B. 540; 607; Greenwald v. Raster, 86 Pa. St. 
 Willis u. DeCastro, 3 C. B. N. S. 216; 45; Williams v. Hilchings, 10 Lea 
 Price V. Barker, 4 E. & B. 760. And (Tenn.), 326. And see Kirby u. Tay- 
 see Bateson r. Gosling, L. R. 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, 2 N. Y. 469. lee v. Lawrence, 44 111. 405. A re- 
 ■* 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.'s 
 
 157; Beam v. Barnum, 21 Conn. 200; firm, in Reading R. R, v. Johnson, 7 
 
 Seymour r. Butler, 8 Iowa, 304; W. & S. 317. The other partners are 
 
 Gardner v. Baker, 25 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 Bk v. Train, 2 Mich, 
 
 nowv. Smith, 18 Pick. 414; Chand- Lawyer, 37. 
 
 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 iiendente lite and dismisserl 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 
 $640.50 from the other defendant. 
 
 1 This is true of California, Con- 109. And although the considera- 
 NECTICUT, Dakota, Kansas, Michi- tion of the release was taken out of 
 GAN, JIlNNESOTA, MISSISSIPPI, Mis- partnership funds. Stitt v. Cass, 4 
 souRi, Montana, Nevada, New Barb. 92. That "joint debtors" in a 
 Jersey, New Yors:, Ohio, Penn- 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 SHoldridge v. Farmers' & Mech. 
 
 of liability, whetlier in fact so or Bank, 16 Mich. 66. 
 
 not, is enacted in MICHIGAN. MiNNE- 4 Seymour v. Butler, 8 Iowa. .304; 
 
 SOTA. Montana, New Jersey, Ohio, Holdridge v. Farmers' & Mech. Bank, 
 
 Rhode Island, South Carolina, 16 Mich. 66. 
 
 Vermont. The copartners' right to 5 Seymour v. Butler, supra; Green- 
 call upon such pai'tner for their pro- wald v. Kaster, 86 Pa. St. 45; but see 
 portion is reserved in Kansas, Mich- Beam v. Barnum, 21 Conn. COO; Rice 
 igan, Minnesota, Missouri, Mon- r. McMartin, 39 id. 573; HoMridgeu. 
 tana, New Jersey, New York, Farmers' & Mech. B"k, 16 Mich. 66, 
 Ohio, Pennsylvania, South Caro- which seem to regard the effect of 
 LINA. the release on the other partners as 
 
 2 Northern Ins. Co. v. Potter, 63 not a matter of remedy and to be 
 Cal. 157 ; Grant^ v. Holmes, 75 Mo. governed by the lex loci contractus. 
 
 405
 
 § 389. CONDUCT OF THE BUSINESS. 
 
 In a foot-note tlie reporter suggests a supposed case, viz.: Had 
 tLe partners believed that ^1,200 would be fouud due the complain- 
 ant and one of them had settled with him for ^600, and it was 
 found that but SiOO 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 $100 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. 
 
 § 380. is notice to all. — Resulting 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 
 io;norance of the transactions of one of their number in act- 
 ing as their agent. 
 
 Thus, notice served upon one of the defendant partners to take 
 depositions is notice to all; ^ and notice of appeal by one partner is 
 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 Avhcre 
 a firm of attorneys receives money belonging to a client who de- 
 mands it of one, this is a demand on the firm.' And if partners are 
 
 • A mere majority has no power to 5 Howland v. Davis, 40 Mich. 545. 
 
 release the liability of one partner to <>See Walker v. Sharpe, 103 Mass. 
 
 the fum. § 433. 154. 
 
 2 Cox V. Cox. 2 Porter (Ala.), 533; "i New Haven Co. Bk. v. Mitchell, 
 
 Spaulding v. Ludlow Woolen Mill, 36 15 Conn. 2013, 219. 
 
 Vt. 150. 8 McFarland v. Crary, 8 Cow. 253 
 
 3 Miller v. Perrine, 1 Huu, 620. (aff'd, 6 Wend. 297). 
 
 •Haywood v. Harmon, 17 111. 477. 
 
 406
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 390. 
 
 mortgagees, a request to one to cancel tlie mortgage is a request to 
 all, so as to make tliem liable to a statutorj' penalty.' 
 
 So demand upon and refusal by one partner is competent evidence 
 of a conversion by the firm.* 
 
 § 3 90. 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 sought a rescission on the 
 
 ground that it was represented that the logs were afloat, but one 
 
 pnrtner knew they were not afloat; this is knowledge on the part of 
 .,11 « 
 
 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. Paj'ments 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. 
 
 iRinfrov. Adams, 63 Ala. 302. it into ties or staves and the firm 
 
 2Nisbet V. Pattou, 4 Rawle, 120; purchased it after one partner had 
 
 Holbrook V. Wight, 24 Wend. 169; notice. Tucker r. Cole, 54 Wis. 539 ; 
 
 Mitchell V. Williams, 4 Hill, 13; ex- Gerhardt v. Swaty, 57 id. 24. 
 
 cept where the taking or detention is sBurritt v. Dickson, 8 Cal. 113. 
 
 not a pari nei ship act, as in Taylor v, * Bigelosv v. Henniger, 33 Kan. 363. 
 
 Jon.'s. 42 N. H. 2'). So if the firm 5 Baugher v. Duphorn, 9 Gill, 314. 
 
 purcliases property from a person sHubbardston Lumber Co. v, 
 
 whom one partner knows to have ob- Bates, 31 Midi. 158. 
 
 tained it by trespass, as wliere the ■? Tucker u. Bradley, 33 Vt. 324. 
 
 seller cut plaintifl'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 and received. 
 The court say B. knew it, therefore A. knew it.* 
 
 § 31)1. 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 teuant in common of oyster beds with R., 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 day 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.' 
 
 §1^92. On purchases of property. — So, where partners 
 make a purchase, the knowledge of one of their number 
 
 iSnarrv. Small, 13 Up. Can, Q. B. 283, 289 (reversed on oilier points. 
 125. in 28 id. 614). 
 
 ^Holtonv.McPike, 27Kan. 286. < DuffiU v. Goodwin, 23 Grant's 
 
 'Ruckman v. Decker, 23 N. J. Eq. Ch (Up. Can ) 431. 
 
 5 Herbert v. Odlin, 40 N. H. 267. 
 408
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 393. 
 
 of a claim or lion upon the property is knowledge of the 
 firm. Thus, where partners took 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, aud 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.* 
 
 § 3i)3. Of defenses to mercantile paper. — So, where a 
 partnership becomes possessed of mercantile paper, the 
 knowledge of defenses on the part of one partner is notice 
 to the firm. 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 Llddell 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 V. Wells, 5 Conn. 468; Stockdale v. Keyes, 79 id. 251 ; Pease 
 Herbert v. O llin, 40 N. H. 2G7. v. McClelland, 2 Bond, 43, where 
 
 2 Barney t\ Currier, 1 D. Chip. (Vt.) they were partners for that trans- 
 815 (6 Am. Dec. 739); and another action only; Hubbard u. Galusha, 23 
 example of such notice will be found Wig. 398. In Stockdale v. Keyes, 
 in Marietta & Ciu. R. R. v. Mowry, where a factor of a firm collubively 
 28 Hun, 79. procured the firm's signature to an 
 
 ' Powell r. Waters, 8 Cow, GG9, 691. accommodation note, and a banking 
 
 * Sparrow v. Chisman, 9 B. & C. partnership in which he was a mem- 
 241; Quinu v. Fuller, 7 Cush. 224. ber discounted it, his knowledge was 
 
 * 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 lie 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 plaintiffs, as 
 indorsees of a note, in an 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. KnoAvledge 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 11. 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 to 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 corporation made 
 a note payable to a bank, agreeing that if its discount was procured 
 they would pay D. & Co. 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 mone}-.'' 
 
 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. » Smith v. Hall, 5 Bosw. 819. 
 
 2 Savings Bank u. Wulfekuhler, 19 ^Duncklee v, GreenfielJ Stearu 
 Kan. GO. See, also, Merchants' Bank Mill Co. 3 Foster (23 N. H.), 245. 
 
 V. Rudolf, 5 Neb. 527. 
 
 410
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 395. 
 
 note to a banlc in which one of its partners was director, his knowl- 
 edge is not its knowledge, because not acquired in its business.' 
 
 § 305. 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 o£ the business.^ 
 
 In Bignold v. Waterhouse,' one member of a firm of carriers 
 colhisively agreed, lor 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, aff'ect the separate individual interests or rights of a 
 member not connected with those 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 verm 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 firm 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, 83 other 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. Bidlemau, .3 Cal. 435. 
 
 s 1 M. & S. 255. 6 Coon v. Pruden, 25 Minn. 105; 
 
 < And see Lacey v. Hill, 4 Ch. D. Boiling v. Anderson, 4 Baxt. (Tenn.) 
 537, that knowledge of the clerks of 550. 
 
 the firm, of the guilty partner's con- " Pengnet v. McKenzie. G Up. Can. 
 duct, is not notice to the firm. C P. oOS ; Petty v. Hauuum, 3 
 
 8 See § 481. Nor is notice to an- Humph. 103. 
 
 411
 
 § S»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. &C. should make 
 advances to him against consignments l)y 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.' 
 
 § 390. As affected by duty and opportunity to oonimuni- 
 
 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 previous occasion he had notified 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. v. Gano v. Samuel, 14 Oli. 593, that tlie 
 Webber, 4 111. App. 437. partner had power to borrow, 
 
 2 Moore v. Gano, 12 Oh. 300. It 3 Steele v. Stuart, L. R. 2 Eq. 84. 
 was subsequently held, however, in * Baldwin v. Leonard, 39 Vt. 2C0. 
 
 412
 
 PARTICULAR POWERS BEFORE DISSOLUTION. g 398. 
 
 the agency being unknown. The prior conversation with U. 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 tho 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 indorsers. ^ 
 
 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 S.in 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- 
 
 2Porthouse v. Parker, 1 Camp. 83; fault, service of a rule nisi upon one 
 
 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 r. Hemp- because they are as to it partners. 
 
 Btead, 1 Mo. [67J, 4S (13 Am. Dec. Collyer on Part. § 443, citing Fig- 
 
 468); Erwiu v. Downs. 15 N. Y. 575. gins v. Ward, 2 Cr. & M. 424; Carter 
 
 3 Brown v. Turner, 15 Ala. 832; u. Southall, 5 M. & W. 128. 
 
 Barry v. Crowley, 4 Gill, 194; Gates ^Hume v. Watt, 5 Kan. 34; Nott 
 
 V. Beecher, CO N. Y. 518 (19 Am. v. Douming, 6 La. 084; 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 partuer when both not joint); Bouldin r. Page, 24 Mo. 
 
 are absent is sufficient. Brown v. 594; Miser v. Trovinger, 7 Oh. St. 
 
 Turner, sitpra. Demand after death 281, 287; Burnet t7. Howell, 8 Phila. 
 
 should, of course, be upon the sur- 531. 
 
 vivor. Cayuga Co. Bank u. Hunt, » Hume r. Watt, 5 Kan. 34. 
 
 2 Hill, 635. So under the old EngUsh « Bouldin v. Page, 24 Mo. 594. 
 practice, in an action against joint 
 
 413
 
 § 399. CONDUCT OF THE BUSINESS. 
 
 Statutes malving partnership contracts joint and several affect the 
 remed}' 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 dissolation is notice to all, for 
 the 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 witb.— 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 dravv^er 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 Sin. & Mar. son Nat'l Bk. 6G M.l. 488. Hence, an 
 749. admission of liability l.y 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. Carjjenter. U Iowa, 4o3. 
 bard u. Matthews, 54 N. Y. 43 (13 If the note was indorsed for accom- 
 Am. Rep. 562), where the dissolution modation, and the lioMer 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, 12 Hun, 516. 
 
 8 Piiila. 531. 6Nutt v. Hunt, 4 Sru. &. Mar. 702; 
 
 »Dabiley v. Stidger, 4 Sm. & Mar. Windham Co. Bk. v. Kendall, 7 R. 
 
 749. See Cocke v. Bank of Tenn. 6 I. 77. 
 
 Humph. 51. 7porthouse v. Parker, 1 Cnnip. 82; 
 
 ^Star Wagon Co. v. Swezey, 53 Rhett v. Poe, 2 How. 457; Fuller u. 
 
 Iowa, 394; s. C. 59 id. 609; Darling Hooper, 3 Gray, 334; Gowan r. Jack- 
 
 V. March, 22 Me. 184; Farmers' & son, 20 Johns. 176; West Branch 
 
 Mer. Bk. v. Lonergan, 21 Mo. 46; Bank v. Fulmer, 3 Pa. St. 3!:9; Har- 
 
 Windham Co. Bank v. Kendall, 7 R. wood v. Jarvis, 5 Sneed (Tenn.), 37."). 
 
 !• "^T- 8 Porthouse v. Parker, 1 Camp. 83 ; 
 
 5 Darling v. March, 22 Me. 184; Star N. Y. & Ala. Contrac. Co. v. Meyer, 
 
 Wagon Co. v. Swezey, 52 Iowa, 394; 51 Ala. 325. 
 S. c. 59 id. 609 ; Seldner v. Mt. Jack- 
 
 414
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 400. 
 
 § 400. partner common to two firms. — So if a part- 
 
 nereliip 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 origiual 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 information 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, 7ion constat but 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. 3 Dwight v. Scovil, 2 Conn. 654; 
 Selma Sav. Bk. 51 Ala. 305; 23 Am. Poland v. Boyd, 23 Pa. St. 476. Tliat 
 Rep. 552 ; Woodbury v. Sackrider, 2 the indorser was a member of the 
 Abb. Pr. 402 ; West Brancli Bank v. maker firm does not excuse want of 
 Fulnier, 3 Pa. St. 399. In Taylor v. protest, though the firm was insolv- 
 Young, 3 Watts, 339, the bill by au ent and the indorser knew the note 
 outgoing partner upon his firm was was not paid. Re Grant, 6 Law Re- 
 professedly on his own behalf and porter, 158. 
 protest was held necessary. * Morris v. Husson, 4 Sandf. 93. 
 
 * 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 hills 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, 400 et seq. 
 
 To pay.— See § 384, et seq. 
 
 To pledge.— §406. 
 
 PERSONAL PROPERTY, POWER OVER. 
 
 * § 401. Power to sell. — Each partner has, hy 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 cases and many of the dicfa seem to apply this rule 
 to chattels of every 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 § 849 et seq. 5 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. Cay ton v. 
 
 3 Clark V. Rives, 33 Mo. rm. Hardy, 27 Mo. 536, that a sale of 
 * Ex parte Howden, 2 Mont. D. & working oxen by one of a farming 
 
 De G. 571; Lamb v. Durant, 12 Mass. parLnersiiip is void. Mussey v. Holt, 
 
 54, 57 (7 Am. Dec. 31); Patch v. 24 N. H. 248 (55 Am. Dec. 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, 1 E. D. Smith, 358. 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 sufiBcient 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, 
 
 ICuUum V. Bloodgood, 15 Ala. 34; Alabama Coal Min. Co. v. Brainard, 
 
 Caulfield v. Sanders, 17 Cal. 569 ; 35 id. 476 ; Manning v. Hays, 6 Md. 
 
 Mills r. Barber, 4 Day, 428 ; Randolph 5; First Nat'l B'k v. Freeman, 47 
 
 Bank v. Armstrong, 11 Iowa, 515, Mich. 408; Commercial B'k u. Lewis, 
 
 assignment of a judgment; Everit v. 13 Sm. & Mar. 226; Windham Co. 
 
 Strong, 5 Hill, 163; McClelland u. B'k r. Kendall, 7 R. L 77; Walker v. 
 
 Remsen, 36 Barb. 622 ; 14 Abb. Pr. K^e, 14 S. Ca. 142 ; 16 id. 76 ; Barrett 
 
 331 ; 23 How. Pr. 175; 3 Keyes, 454; v. Russell, 45 Vt. 43. 
 
 3 Abb. App. Dec. 74; Kull v. Tliomi> & 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, 35 id. 476. See § 194. 
 
 2 Commercial Nat'l B'k v. Proctor, 6 First Nat'l B'k v. Freeman, 47 
 98 111. 558. Mich. 408. 
 
 3 Pearson v. Post, 2 Dak. 220, 249. 7 George v. Tate, 102 U. S. 564. 
 
 4 Planters' & Mer. B'k t?. Willis, 5 s Mechanics' B'k v. Hildreth, 9 
 Ala. 770; Cullum v. Bloodgood, 15 id. Cash. 356. 
 
 34 ; Halstead v. Shepard, 23 id. 558 ; » Pierce v. Jarnagin, 57 Miss. 107. 
 Vol. 1 — 27 417
 
 § 40J. 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 
 be worth a certain sum. The firm was held liable on the warranty.^ 
 But the contrary has been held of a sale of a judgment guarantying 
 its payment without proof of usage.* 
 
 In Jordan v. Miller, 75 Va. 442, a partnership was formed to bay 
 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 obtained. 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 lad. 250. 6 The case of Dore v. Wilkinson, 
 
 2Diumright v. Philpot, IG Ga. 434; 2 Stark. 287, is not to the effect that 
 60 Am. Dec. 738. a partner can sell the books, but the 
 
 3 Sweet V. Bradley, 24 Barb. 549. dictum is that if tlie purchaser from 
 * Hamilton u. Purvis, 2 Pa. 177. a partner had bought a new set of 
 
 418
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 40:j. 
 
 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, doubtless, 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. Clark, 1 Biss. 128, 136); Graser v. 
 partner, he would have a lien on Stellwagen, 25 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; 286; Deckard v. Case, 5 Watts, 22, 
 Pearpoint v. Graham, 4 Wash. C. C. 24; 30 Am. Dec. 287; Dickinson v. 
 232 ; Anderson v. Tompkins, 1 Brock. Legare, 1 Desaus. 537 ; Mygatt v. 
 456, 459; Halstead v. 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, 428, iams v. Roberts, 6 id. 493; Lasell v. 
 430; Drake v. Thyng, 37 Ark. 228; Tucker, 5 Sneed, 33, 36 ; Schneider v. 
 Mason v. Tipton, 4 Cal. 276; Crites Sansom, 62 Tex. 201; 50 Am. Rep. 
 V. Wilkinson, 65 id. 559; Williams 521; 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 u. Rose, 10 Up. Can. 
 V. Holden, Litt. Sel. Cas. 447; 12 Am. Q. B. 16; Paterson v. Maughan, 39 
 Dec. 331 ; Arnold v. Brown, 24 Pick. id. 371. 
 
 89; 35 Am. Dec. 296; Tapley v. But- 2 Osborne v. Barge, 29 Fed. Rep. 
 terfield, 1 Met. 515; 35 Am. Dec. 725; Wilcox u Jackson, 7 Colorado, 
 374; Kirby v. Ingersoll, 1 Doug. 521; McCoy v. Boley, 21 Fla. 803; 
 (Mich.) 477, 488 (aff. s. c. Har. Ch. 172) Bull v. Harris, 18 B. Mon. 195; Tap- 
 (see Sirrine v. Briggs, 31 Mich. 443, ley v. Butterfield, 1 Met. 515; 35 Am. 
 444); Whittou v. Smith, 1 Freem. Dec. 874; Holt v. Simmons, 16 Mo. 
 (Miss.) Ch. 231; Cayton v. Hardy, 27 App. 97; Willett v. Stringer, 17 Abb. 
 Mo. 536; Holt v. Simmons, 16 Mo. Pr. 152; Arnold v. Morris, 7 Daly, 
 App. 97, 114; Mabbett v. White, 12 498; Paterson v. Maughan, 39 Up. 
 N. Y. 442 (explained in Pettee v. Can. Q. B. 371. 
 Orser, 6 Bosw. 123, 137 ; and Bowen 
 
 419
 
 § 40-t. CONDUCT OF THE BUSINESS. 
 
 ner has tlie power to sell or transfer tlie entire personal propert}', 
 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 autliorities 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 
 
 1 Barcroft v. Snodgrass, 1 Cold. 558, 573 ; Williams v. Roberts, 6 
 (Tenu.)430, 444; Williams v. Roberts, Cold. 493. A sale of the whole, being 
 6 id. 493; McCullough v. Sommer- an unusual transaction, may excite 
 ville, 8 Leigh. 415, 430; Tapley v. suspicion and may be found not to 
 Butterfield, 1 Met. 515, 519 (35 Am. be bo7ia fide. Stegall v. Coney, 49 
 Dec. 374); Goddard v. Reuner, 57 Miss. 761. And if sold at half prio«s, 
 Ind. 533 ; Keck v. Fisher, 58 Mo. 533, notice that it is not in the course of 
 535; Weldu. Peters, 1 La. Ann. 433. business may be implied. Walla.f"« 
 
 2 Williams v. Barnett, 10 Kan. 455, v. Yeager, 4 Phila. 251. 
 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, 
 even 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 efiiects 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.' 
 
 In 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 loAva, 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. 
 
 iSee, also, Goddard v. Renner. 57 brewery could not sell the brewery 
 Ind. 532, holding that a partner in a lot. 
 
 421
 
 § 405. CONDUCT OF THE BUSINESS. 
 
 In Ilunter v. Waynick, 67 Iowa, 555, it was said that one part- 
 ner has 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 Hefiderson v. Nicholas, 67 CaL 152, it was held that one part- 
 ner could not convey the interest of both in a water right acquired 
 by them by appropriation. 
 
 § 405. The power 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.' 
 
 lSee§325. feuse was want of insurable inter- 
 
 2§ 410. est, one partner having previously 
 
 3 Hale u. Railroad, 60 N, H. 333; sold out the insured property. 
 
 Edgar v. Donnally, 2 Munf. (Va.) * Pearpoint v. Graham, 4 Wash. C. 
 
 387; Fox V. Rose, 10 Up. Can. Q. C. 232; Osborne v. Barge, 29 Fed. 
 
 B. 16. Rep. 725. See Sirrine v. Briggs, 31 
 
 * Dickinson v. Legare, 1 Desaus. Mich. 443, 444. 
 537. 'And see, also, as to absence af- 
 
 6 Kimball v. Hamilton F. Ins. Co. fectiug autliority. 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 i'. Waynick, cited in the previous 
 
 423
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 40G. 
 
 § 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 incum- 
 ber the entire stock is involved in the power to sell the 
 whole stock. ^ 
 
 eection ; Forkner v. Stuart, 6 Gratt. Mills v. Barber, 4 Day, 438 ; Com- 
 197. For the remedy of the injured mercial B'k v. Lewis, 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, 454; 3 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- 
 €uUum V, Bloodgood, 15 Ala. 34; well u. Green, 25 N. J. L. 390; Fork- 
 Mills V. Barber, 4 Day, 428 ; McClel- 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; 30 Barb, 622; 23 How. ^Peiise v. Bowles, 1 Stark. 323. 
 Pr. 175; 14 Abb. Pr. 331; George v. » 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 u 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; Stockwell V. 
 V. 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 III. 55; 374; Patch v. Wheatland, 8 Allen, 
 Morse v. Richmond, 6 III. App. 166 102; Keck u. Fisher, 58 Mo. 532; Holt 
 (aff'd, 97 111. 303), 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, 492. 
 McGregor v. Ellis, 2 Disney, 286. • 9 As to which, see § 403. As to 
 
 sCarnesv. 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 OF 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 partners 
 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 Avas held 
 sufiBcient.* The mortgage may be executed by the partner s signing 
 the 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 
 to pay the debt of one partner in- 
 volves the question of fraudulent 
 conveyances, which is treated in 
 § 565. 
 
 1 Reid V. Hollinshead, 4 B. & C. 
 867; Donald v. Hewitt, 33 Ala. 534, 
 551 ; Tapley v. Butterfield, 1 ]\Iet. 515 
 (35 Am. Dec. 374); Clark v. Rives, 
 33 Mo. 579, 582; Willett v. Stringer, 
 17 Abb. Pr. 152. Unless the lender 
 knows the partner will appropriate 
 the avails to his own use. Ex parte 
 Bonbonus, 8 Ves. 540. For a similar 
 power in surviving partners, see 
 § 731. And see Power after Dissolu- 
 tion, § 686. Contra, if it practically 
 terminates the business. Osborne v. 
 Barge, 29 Fed. Rep. 725. And see 
 § 405. Whether one partner could 
 pledge the property of the firm to 
 secure a debt due to another firm, in 
 which also he had a large interest as 
 
 partner, was doubted by Snyder, J., 
 in Roots V. Salt Co. 27 W. Va. 483^ 
 493. 
 
 2 McCoy V. Boley, 21 Fla. 803 •, 
 Sloan V. Owens, Lane & Dyer Mach. 
 Co. 70 Mo. 206. 
 
 3 McCoy V. Boley, 21 Fla. 803. See- 
 Gibson V. Warden, 14 Wall. 244. 
 
 4 Sanders v. Pepoon, 4 Pla. 405. 
 
 5 Randall v. Baker, 20 N. H. 335, 
 Contra, Sloan v. Owens, Lane & 
 Dyer Mach. Co. 70 Mo. 206. 
 
 6 Patch V. Wheatland, 8 Allen, 102; 
 Tapley v. Butterfield, 1 Met. 515- 
 (35 Am. Dec. 374). And see g 200. 
 
 'Sweetzer v. Mead, 5 Mich. 107;. 
 Milton V. Mosher, 7 Met. 244; Tapley 
 V. Butterfield, 1 Met. 515 (35 Am. 
 Dec. 374) ; Woodruff v. King, 47 Wis. 
 261. And see g 418. 
 
 8 Clark V. Houghton, 12 Gray, 38. 
 
 9 Tarbel v. Bradley, 7 Abb. New 
 Cas. 273. And see § 183. 
 
 421
 
 PARTICULAR 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, 3'et 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 over contracts.- — Where a firm filled or- 
 ders with inferior articles, a contract hy 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 Rep. 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 terras 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.* 
 
 ' See g 183. of its patent pavement used, it is not 
 
 - 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, 18 Vt. 452. 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, 286, noticed under g 391. And difficult to reconcile this case with 
 
 where a city had ag'reed 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 p)rocure insuraiace on the entire property, unUke 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 arbitration clause of a policy.* 
 
 § 410. Use of assets to pay separate debts. — From the 
 fact 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 coj)artners have 
 an equity for the application of the property to the debts, 
 and adjustment of mutual accounts, it follows 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- 
 Arraitage v. Winterbottom, 1 M. & ducted its business of milliug, the 
 G. 130; per Marshall, C. J., Graves other partner has no power to bind 
 v. Boston Mar, Ins. Co. 2 Cranch, the firm for the expense of a lightning 
 419, 4o!); Pennsylvania Ins. Co. v. rod to protect the mill, for this 
 Murphy, 5 Minu. 36. And see Clem- power is not necessary to carry ou 
 ent V. Biitish Amer. Assur. Co. 141 the business in the ordinary way, 
 Mass. 298, of a limited partnei'ship; and a note for it is not good against 
 Robinson v. Gleadow, 2 Bing. N. the other partner. Graves v. Kellen- 
 Cas. 156, where there was evidence berger, 51 Ind. 60. 
 
 of authority. 6 Cook v. Bloodgood, 7 Ala. 683; 
 
 2 Hunt V. Royal Exchange Assur. Fall River Un. B"k v. Sturtevaut, 13 
 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, 2 
 Mich. 531. AV. N. (Pa.) 115; Vance u Campbell, 
 
 * Brown v. Hartford F. Ins. Co. 8 Humpli. 524; Converse v. McKee, 
 117 Mass. 479; Brink v. New Amster- 14 Tex. 20. And see §g 347-8, 383, 
 dam Ins. Co. 5 Robt. (N. Y.) 104. 1035-1048. 
 
 6 See § 337. Where one partner 
 
 426
 
 PARTICULAR POWERS BEFORE DISSOLUTIOIi. § 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 i3artner 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. Va. 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 otlier 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. 219; or any remedies the client would 
 Price V. Hunt, 59 Mo. 258; Armistead have, such as execution. Cook v. 
 V. Butler, 1 Hen. & M. (Va.) 176. Bloodgood, 7 Ala. 683, 688. 
 
 'Minor v. Gaw, 11 Sm. & Mar. 323. * Croughton v. Forrest, 17 Mo. 131 : 
 
 A firm of attorneys emjjloyed to col- Forney v. Adams, 74 Mo. 138; Vance 
 
 lect a claim, having got judgment ou v. Campbell, 8 Humph. o2i; Fall 
 
 it, the debtor gave up to the sheriff River Un. 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 g§ 544-546. For remedy, see §§ 1035- 
 
 and had the receipt vacated, or could 1048. 
 
 427
 
 § 411. CONDUCT OF THE BUSINESS. 
 
 § •111. 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 partner with 
 whom he is bargaining to accept them for his own use.^ 
 
 The same rule against appropriating 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 u Newdigate, 11 B Mon. 
 
 Cadwalladeru. Kroesen. 22Md. 200; 174 (53 Am. Dec. 567); Lemon v. 
 
 Johnson v. Crichton, 56 id. 108, 112; Fox. 21 Kan. 152, 159; Hood v. Riley, 
 
 McNair v. Piatt, 4(5 111. 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 df 
 
 Ramey v. McBride, 4 Strob. (S. Ca.) the cases cited, and yet some have 
 
 L. 12. Contra, Tyler u Scott, 45 Vt. gone much further. Thus, in White 
 
 261; Strong v. Fish, 13 Vt. 277; v. Toles, 7 Ala. 569, a contract witli 
 
 Mitchell V. Sellman, 5 Md. 376, but one partner that the firm should do 
 
 here the partner had been authorized work for the party, to be paid for by 
 
 to arrange the mode of payment for boarding sucli partner, was sus- 
 
 the new purchases. Arnold v. Brown, tained. See, also, Greeley u. Wyeth, 
 
 24 Pick. 89 (35 Am. Dec. 296), (but 10 N. H. 15, 
 
 see Williams v. Brimhall, 13 Gray, 3 Williams v. Brimhall, 13 Gray, 
 
 463.) Kirkpatrick v. TurnbuU, Addi- 462; Ramey v. McBride, 4 Strob. (S. 
 
 son (Pa.), 259; McKee v. Stroup, Rice Ca.) L. 13. 
 (S. Ca.), 291, but the three last cases 
 
 428
 
 PARTIGULzVR POWERS BEFORE DISSOLUTION. § 412. 
 
 and emploj^s the services of the partner for the purpose of extin- 
 guishing the debt, or where a person employs a partner, not being 
 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, IT 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 himber 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, 27 Vt, 664; 2 See, also, Cornells v. Stanhope, 14 
 McBain v. 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, § 415. 
 
 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 hiAV, 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 
 power to do these acts is not based on a better reason, the curious 
 result will follow that the abolition in fourteen 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 
 
 430
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 414. 
 
 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 mere survival, productive of no advantage; and a very 
 cursory examination of the cases Avill 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 firm 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 III. 3 111. 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. 244; StrafEn 
 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. 705). 
 
 B. Mon. 244. ^ 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. 
 Fishery. Tucker, 1 McCord (S. Ca.), 358; People v. Judges of Duchess, 5 
 Ch. 169; McDonald v. Eggleston, 26 Cow. 34; Anonymous, 2 Hayw. (N. 
 Vt. 154, 160 (60 Am. Dec. 303); Doe Ca.) 99; Anonymous. Tayl. (N. Ca.) 
 ex dem. Smith v. Tupper, 4 Sm. & 113< McKee v. Bank of Mt. Pleasant, 
 Mar. 261 (43 Am. Dec. 483); 7 Oh. 2d pt. 175; Gerard v. Basse, 1 
 McKnight v. Wilkins, 1 Mo. 308, 309. Dall. 119; Trimble v. Coons, 2 A. K. 
 Opinions criticising the rule will be Mar. 375 ; McCart v. Lewis, 2 B. 
 found in Gram v. Seton, 1 Hall, 262 ; Mon. 267 ; Nunnely v. Doherty, 1 
 Drumright v. Philpot, 16 Ga. 424 (60 Yerg. (Tenn.) 26, 30. 
 
 Am. Dec. 788) ; Gwinn v. Rooker, 24 * Harrison v. Jackson, 7 T. R. 207. 
 Mo. 290, 292 ; Sloo v. State Bank of 
 
 431
 
 § 416. 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 instrumenb 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. 
 
 § 41tj. Parol authority or assent. — If the specialty 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 
 
 iHockless V. Mitchell, 4 Esp. 80; partner could release a debtor under 
 Hawkshaw v. Parkins, 2 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 v. Sharpe, 2 Ball v. Dunsterville, 4 T. R. 813; 
 2 Harr. (Del.) 481 ; Morse v. Bellows, Burn v. Burn, 3 Ves. 578. 
 7 N. H. 549 (28 Am. Dec. 372); Smith 3 Steiglitz v. Egginton, Holt, N. P. 
 V. Stone, 4 Gill & J. 310 ; Allen v. 141 ; Harrison v. Jackson, 7 T. R. 207 ; 
 Cheever, 61 N. H. 32; Pierson v. Cummins v. Cassily, 5 B. Mon. 74; 
 Hooker, 3 Johns. 68 (3 Am. Dec. Doe v. Tupper, 12 Miss. 261 ; Bentzen 
 467); Bruen v. Marquand, 17 Johns, v. Zierlein, 4 Mo. 417; Turbeville v. 
 58 ; Wells v. Evans, 20 Wend, 251 (re- Ryan, 1 Humph. 113, 120 (34 Am. Dec. 
 versed in part in Evans v. Wells, 22 622); Little v. Hazzard, 5 Harr. (Del.) 
 Wend. 324); Beach v. Ollendorf, 1 291; Sellers v. Streater, 5 Jones, 
 Hilt. 41 ; Perlberg v. Gorham, 10 Cal. L. 261 ; Fisher v. Pender, 7 id. 
 120; Gates v. Pollock, 5 Jones (N. 483; Tappan v. Redfield, 1 Halst. 
 Ca.),L. SU; and dicta in Fox V. 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. 326, 334. 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 
 251 (reversed on other points in wind up, does not revive the power. 
 Evans v. Wells, 22 id. 324; Lockw. Napier v. Catron, 2 Humph. 534. 
 Rev. Cas. 390), it was held that as a 
 
 482
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 416. 
 
 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 froro 
 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 v. Warden, 14 Wall. 244; 
 Anthony v. Butler. 13 Pet. 423; 
 United States v. Astley, 3 Wash. C. 
 C. 508; Darst v. Roth, 4 Wash. C. C. 
 471 ; Hawkins v, Hastings Bank, 1 
 Dill. 462 ; 4 Bankr. Reg. 108 ; Re Law- 
 rence, 5 Fed. Rep. 349 ; Henderson 
 V. Barbee, 2 Blatchf. 26; Herbert v. 
 Hanrich, 16 Via. 581; Grady v. Rob- 
 inson, 28 Ala. 289; Gunter v. 
 Williams, 40 Ala. 561 ; Lee v. Onstott, 
 1 Ark. 206 ; Hobson v. Porter, 2 Col- 
 orado, 28; Jeffreys v. Coleman, 20 
 Fla. 536; Drumriglit v. Philpot, 16 
 Ga. 424 (60 Am. Dec. 738) ; Sutlive v. 
 Jones, 61 id, 676; Peine v. Weber, 
 47 111. 41 ; Wilcox v. Dodge, 12 111. 
 App. 517; Modisett v. Linclley, 2 
 Blackf. 119; Price v. Alexander, 2 G. 
 Greene (Iowa), 427 (52 Am. Dec. 526) ; 
 Haynes v. Seachrest, 13 Iowa, 455; 
 Craig V. Alverson, 6 J. J. Mar. (Ky.) 
 609: Daniel v. Toney, 2 Met. (Ky.) 
 523 ; McCart v. Lewis, 2 B. Mon. 267 ; 
 Pike V. Bacon, 21 Me. 280 (38 Am. 
 Dec. 259) ; Herzog v. Sawyer, 61 Md. 
 344 ; Cady v. Shepherd, 1 1 Pick. 400 
 (22 Am. Dec. 379); Swan v. Stedman, 
 4 Met. 548; Russell v. Annable, 109 
 Mass. 72; Holbrook v, Chamberlin, 
 116 id. 155; Sweetzer v. Mead, 5 
 Mich. 107; Fox v. Norton, 9 id. 207; 
 Shirley v. Fearne, 33 Miss. 653; 
 
 Gwinn v. Rooker. 24 Mo. 290 ; Mackay 
 V. Bloodgood, 9 Jolms. 2S5 ; Skinner 
 i\ Dayton. 19 id. 513; Gates v. Gra- 
 ham, 12 Wend. 53; Gram i\ Seton, 
 1 Hall, 262; Pettis v. Bloomer, 21 
 How. Pr. 317; Smith v. Kerr, 3 N. Y. 
 144; Person v. Carter, 3 Murph. (N. 
 Ca.) 321; Fichthorn v. Boyer, 5 
 Watts. 159; Purviance v. Suther- 
 land, 2 Oh. St. 478; Bond v. Aitkin, 
 6 Watts & S. 165 (40 Am. Dec. 550) 
 Taylor v. Coryell, 12 S. & R. 243, 249 
 Johns V. Battin, 30 Pa. St. 84 
 Schmertz v. Shreeve, 62 Pa. St. 457 
 (1 Am, Rep. 439); Fleming v. Dun- 
 bar, 2 Hill (S. Ca.), L. 532; Lucas v. 
 Sanders, 1 McMull. 311 ; Fant y. West, 
 10 Rich. L. 149; Stroman v. Varn, 19 
 S. Ca. 307; Lambden v. Sharp, 9 
 Humph. 224(34 Am. Dec. 642); Low- 
 ery v. Drew, 18 Tex. 786, 792 ; Bald- 
 win V. Richardson, 33 Tex. 16; 
 McDonald v. Eggleston, 26 Vt. 154. 
 161 (60 Am. Dec. 303): Black v. 
 Campbell, 6 W. Va. 51; Wilson v. 
 Hunter, 14 Wis. 683; Modr v. Boyd, 
 15 Up. Can. C. P. 513; Bloomley r. 
 Grinton, 9 Up. Can. Q. B. 455; Howell 
 V. McFarland, 2 Out. App. 31. 
 
 2 Swan V. Stedman, 4 Met. 548; 
 Gwinn u Rooker, 21 Mo. 290. 
 
 3 Sweetzer v. Mead, 5 Mich. 107, 
 110. 
 
 Vol. I — 28 
 
 433
 
 j5 4i; 
 
 CONDUCT OF THE BUSINESS. 
 
 § 417. Assent as to conyeyances 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.^ 
 
 ^ § 293. Nevertheless, in Robinson executed in its name by one partner, 
 V. Crowder, 4 McCord (S. Ca.), L. whei'e all went into possession, was 
 519, 536-7 (17 Am. Dec. 7G3), 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 v. Williams, 40 Ala. 561; and 
 rather of scope of authority than of see Stroman v. Varn, 19 S. Ca. 307; 
 form. And in Haynes u. Seachrest, Anthony v. Butler, 13 Pet. 423; 
 13 Iowa, 455, and Herberts. Hanrick, Holdeman v. Knight, Dallam (Tex.), 
 16 Ala. 581, parol ratification was 55(5. 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, 28 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 
 fied or authorized by parol; and in by each for himself or by procura- 
 Baldwin v. Richardson, 33 Tex. 16, tion and not 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 partner 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 III. 41, and Smith v. Kerr, 3 N. Y. validated by tlie acknowledgment of 
 144, the contrary was held ; and in the other before a notary that his 
 Holbrook v. Chamberlin, 116 Mass. partner was authorized, Holdeman 
 155, 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. 
 
 §41B. 
 
 § 418. Unnecessary seal as surplusage. — 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 
 nature the act is still 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 
 official acknowledgment was by him 
 as his free act and deed on behalf of 
 the firm, this was held valid on evi- 
 dence of authority by the copartners. 
 Wilson V. Hunter, 14 Wis. 744. Con- 
 tra, Lemmon v. Hutchins, 1 Ohio 
 Cir. Ct. 388, 391. 
 
 1 Hunter v. Parker, 7 M. & W. 822 ; 
 Gibson v. Warden, 14 Wall. 244 ; An- 
 derson V. Tompkins, 1 Brock. 456; 
 Hawkins v. Hastings Bank, 1 Dillon, 
 462; 4 Bankr. Reg. 108; Drumright 
 V. Philpot, 16 Ga. 424 (60 Am. Dec. 
 738); Walsh v. Lennon, 98 III. 27 (38 
 Am. Rep. 75) ; Price v. Alexander, 2 
 G. Greene (Iowa), 427 (53 Am. Dec. 
 526); Van Deusen v. Blum, 18 Pick. 
 229 (29 Am. Dec. 582) ; Tapley v. But- 
 terfield, 1 Met. 515 (35 Am. Dec. 374, 
 achattel mortgage); Milton v. Mosher, 
 7 id. 244 (a chattel mortgage) ; Sweet- 
 zer V. Mead, 5 Mich. 107 (a chattel 
 mortgage); Moore v. Stevens, 60 
 Miss. 809, 815; Henry County v. 
 Gates, 26 Mo. 315, 317; Human v. 
 Cuniffe, 32 Mo. 316; Despatch Line 
 V. Bellamy Man. Co. 12 N. H. 205, 
 235 (a corporation); Purviance v. 
 Sutherland, 2 Oh. St. 478 ; Patten v. 
 Kavanagh, 11 Daly, 348; Everit v. 
 Strong, 5 Hill, 163 (aff'd, 7 id. 585); 
 
 Deckard v. Case, 5 Watts, 22 (30 Am. 
 Dec. 287) ; Dubois' Appeal, 88 Pa. St. 
 231; Schmertz v. Shreeve, 62 Pa. 
 St. 457 (1 Am. Rep. 439); Robinson 
 V. Crowder, 4 McCord, 519 (17 Am. 
 Dec. 762); Lasell v. Tucker, 5 Sneed 
 (Tenn.), 33. (a bill of sale); McDon- 
 ald V, Eggleston, 26 Vt. 154 (60 Am. 
 Dec. 303); McCullough v. Sommer- 
 ville, 8 Leigh, 415; Woodruff v. 
 King, 47 Wis. 261 (a chattel mort- 
 gage); Bloomley v. Grinton, 9 Up. 
 Can. Q. B. 455. See, also, article in 
 9 Am. Law Reg. N. S. 264, May, 
 1870. That the seal will be regarded 
 as added by mistake where it is un- 
 necessary and was intended to bind 
 the firm, Wharton v. Woodburn, 4 
 Dev. & Bat. L. 507; Purviance v. 
 Sutherland, 2 Oh. St. 478. In Dillon 
 V. Brown, 11 Gray, 179, a sealed lease 
 by one partner in the name of the 
 firm for a short term, for which no 
 seal is required, was held not to pass 
 the estate of the other partners ; but 
 this was because of the law govern- 
 ing real estate, as to which the part- 
 ners are tenants in common, and 
 therefore all must have signed or as- 
 sented even had there been no seal. 
 2 Schmertz v. Shreeve, 62 Pa. St, 
 457, 460 (1 Am. Rep. 439) ; Deckard 
 
 435
 
 §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, but 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 none; but that the 
 partners in the firm name sealed. - 
 
 § 420. 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, 23 (30 Am. Dec. 2 That a single seal is sufficient ia 
 
 287); Dubois' Appeal, 38 Pa. St. 231 ; expressly ruled in the following 
 
 Everit v. Strong, 5 Hill, 163; 7 id. cases: Ball v. Dunsterville, 4 T. R. 
 
 585: Forkner r. Stuart, 6 Gratt. 197; 313; Henderson v. Barbee, 6 Blatch. 
 
 McClelland v. Remsen, 3 Keyes, 454; 26; Lee v. Onstott, 1 Ark. 206; Day v. 
 
 3 Abb. App. Dec. 74; 36 Barb. 22; Lafferty, 4 id. 450; Massey u. Pike, 20 
 
 23 How. Pr. 175 ; 14 Abb. Pr. 331 ; id. 92 ; Witter v. McNeil, 4 111. 433, 
 
 Andersons. Tompkins, 1 Brock. 456; 436-7; Modisett v. Lindley, 2 Blackf. 
 
 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, 21 Me. 2S0; 38 Am. Dec. 259 
 
 of Daniels, 14 R. I. 500. In McDon- McKnight v. Wilkins, 1 Mo. 220 
 
 aid V. Eggleston, 26 Vt. 154, 159-60 (60 Mackay v. Bloodgood, 9 Johns. 285 
 
 Am. Dec. 303), it is intimated, but I Pettis v. Bloomer, 21 How. Pr. 317 
 
 believe erroneously, that disregard- Buttons. Hampson, Wright (O.), 93 
 
 ing an unnecessary seal is confined Lambden v. Sharp, 9 Humph. 224 
 
 to transactions that transfer an in- 34 Am. Dec. 642; 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 v. Boyd, 23 Up. 
 
 1 Pearson v. Post, 2 Dakota, 220, Can. Q. B. 459). And see cases gen- 
 
 248. Seals have been abolished in erally under § 416. 
 Arkansas, California, Dakota, ' Morris ?'. Jones, 4 Harr. (Del.) 
 
 Indiana, Iowa, Kansas, Kentucky, 423; Williams v. Hodgson, 2 Har. «fe 
 
 Mississippi, Montana, Nebraska, J. (Md.) 474; Davidson v. Kelly, 1 
 
 Ohio, Oregon, Tennessee, Texas. Md. 492; Settle v. Davidson, 7 Mo. 
 
 436
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 4'iO. 
 
 But the point was not necessary to be decided in any one of these 
 cases. 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 authority 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 obhgation of one partner is in his 
 
 604; Gwinn v. Rooker, 24 id. 291; 12 N. H. 205,235. And in Walsh v. 
 Clement v. Brush, 3 Johns. Cas. 180; Lennon, 98 111. 27; Daniel v. Toney, 
 Skinner v. Dayton, 19 Johns. 513, 2 Met. (Ky.) 523; Van Deusen v. 
 531 ; Spear v. GiUet, 1 Dev. (N. Ca.) Biura, 18 Pick. 229; 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. 12 N. H. 205, 235, it was held not 
 158; 33 Am. Dec. 138; Nunnely r. even to be a merger as to the signing 
 Doherty, 1 Yerg. 26 ; Waugh v. Car- partner, and that all the partnei-s 
 riger, 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. Mon. 199, 
 223, 232; 38 Am. Dec. 731. it was held that a plea of non est 
 1 Walsh V. Lennon, 98 111. 27 ; 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. 229; 29 Am. debt. In Van Deusen v. Blum, 18 
 Dec. 582; Despatch Line v. Bellamy, Pick. 229, 231 (29 Am. Dec. 582), 
 12 N. H. 205, 235; Walden v. Sher- wliere the unauthorized seal was 
 burne, 15 Johns. 409; Blanchard v. upon a contract to build a dam for 
 Pasteur, 2 Hay w. (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; Hortonu. Child, 4 Dev. L. was liable on an implied promise to 
 4.30; Purviance v. Sutherland, 2 Oh. pay; that the express contract does 
 St. 478; Hoskissonv. Eliot, 62 Pa. St. not exclude the implied one that the 
 393; Fleming v. Lavvthorn, Dudley plaintiff is not bound to rely on his 
 (S. Ca.), L. 300; Pierce u 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 the debt be a judgment, the bond is no 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 of 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 ; Fletcher v. Vanzaiit, 1 Mo. 196 ; 
 C. C. 508; Settle v. Davidson, 7 Mo. Bentzen v. Zierlein, 4 id. 417; Settle 
 604 ; Reed u Girty, 6 Bosw. 567 ; Bax- v. Davidson, 7 id. C04; Weeks v. 
 ter V. Bell, 19 Hun, 367 (reversed, 86 Mascoma Rake Co, 58 N. H. 101 ; 
 N. Y. 195); Bennett v. Cad well, 70 Green v. Beals, 2 Caines, 254; Clem- 
 Pa. St. 253, 260 ; Jacobs v. McBee, 2 ent v. Brush, 3 Johns. Cas. 180; 
 McMull. 348. See §§ 535-539. Niday Skinner v. Dayton, 19 Johns. 518; 
 V. Harvey, 9 Gratt. 454 ; In re Inter- McBride 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 (O.), 142; Mc- 
 gare, 1 Desaus. (S. Ca.) 537. Naughten v. Partridge, 11 Oh. 223; 
 
 ■•^ Bennett u 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 j 
 L. 395. And see Robinson u. Wilkin- Sloo v. Powell, Dallam (Tex.), 467; 
 son, 3 Price, 538. The contrary was Regina v. McNaney, 5 Up. Can. P. O. 
 eaid to be the rule, however, in Da- 438. And see the cases cited under 
 vidson V. Kelly, 1 Md. 492 ; 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, 2 Rob. (Va.) 536. Streater, 5 Jones, L. 261; Fisher v. 
 
 4 Elliot V. Davis, 2 B. & P. 338; Pender, 7 id. 483; Hart v. Withers, 1 
 Lay ton v. Hastings, 3 Harr. (Del.) Pa. 285 ; Lucas v. Sanders, 1 McMull. 
 147; Morris v. Jones, 4 id. 428; Will- 311. 
 
 iams V. Hodgson, 3 Har. & J. (Md.) SHerzog v. Sawyer, 61 Md. 344; 
 474; Armstrong v. Robinson, 5 Gill Lucas r. Sanders, 1 McMull. (S. Ca.) 
 & J. 413; 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 foUovved 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. 4G0, 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. Rights 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 
 
 315, 317; Hart v. Withers, 1 Pa. 285 viance v. Sutherland. 3 Oh. St. 478; 
 
 (21 Am. Dec. 382). Sale v. Dishman, 3 Leigh (Va.), 548; 
 
 1 Tattle V. Eskridge, 2 Munf. (Va.) Weaver v. Tapscott, 9 id. 424 ; 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.), ^Purviance v. Sutherland, 2 Oh. 
 142; Blan chard r. Pasteur, 2 Hayw. St. 478; Foster v. Rison, 17 Gratt. 
 (N. Ca.) 393; Boston, etc. Smelting 321; Hoskisson v. Eliot, 62 Pa. St. 
 Co. V. Smith, 13 R. I. 27 (43 Am. 393; Froneberger u Henry, 6 Jones, 
 Rep. 3); Niday v. Harvey, 9 Gratt. L. 548. Contra, Hart v. Withers, 1 
 454. Pa. 283 (21 Am. Dec. 382); United 
 
 8 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- (12 Am. Dec. 35). 
 
 439
 
 .^ 424. CONDUCT OF THE BUSINESS. 
 
 firm bound by the signature.' On tlie 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 
 
 iHarter v. Moore, 5 Blackf. 367; really for himself, and paid it volun- 
 
 Stewart v. Behm, 2 Watts, 356 ; Pel- tariiy, he can recover from the firm ; 
 
 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 u Wood burn, 4 
 
 (12 Am. Rep. 665) ; and see Garland Dev. & Bat. L, 507. Tliat 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- 3 By 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, §339; of un- 
 
 itor's obtaining judgment against authorized notes, § 363 ei seg,; of con- 
 
 the executing partner alone, and this fessions of judgment, g 378; of sealed 
 
 reason also influenced the court in instruments, § 413. 
 
 Pelzer v. Campbell, supra. And * Lyell v. Sanbourn, 2 Mich. 109, of 
 
 where one became surety on a 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. 39, 43. 
 
 440
 
 PARTICULAR POWERS BEFORE DISSOLUTION. § 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 partners 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 b}^ 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 refuse 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. 267. See 
 
 2 Bank of Montreal v. Page, 98 111. § 365. 
 
 109. 7 Foster v. Fifield, 29 Me. 136, 139; 
 
 s Roberts' Appeal, 92 Pa. St. 407. Hood v. Riley, 15 N. J. L. 127. 
 
 •*Fiye V. Sanders, 21 Kan. 26, 30 8 Lawrence u Taylor, 5 Hill, 107. 
 
 (30 Am. Rep. 421). 9 Corwin v. Suydam, 24 Oh. St. 209 ; 
 
 5Fosterv. Fifield, 29 Me. 136; Wil- Sloan v. McDowell, 71 N. Ca. 356. 
 
 son V. Dargan, 4 Rich. L. 544. But 359-61 (citing Piercyr. Fynney, L. R. 
 
 see §§ 565, 566. 12 Eq 69, 74, in which the plaintiff 
 
 441
 
 § 427. CONDUCT OF THE BUSIN*ESS. 
 
 § 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 authority.' 
 
 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.) 233. Pa. St. 393; Lee v. Macdonald, 6 Up. 
 
 1 Andrews v. Planters' Bk. of Miss. Can. Q. B. (Old Ser.) 130. 
 
 7Sm, &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- 
 
 Biggs u. Hubert, 14 S. Ca. 620; Gray ernghim r. Ensworth, 7 Wend. 326; 
 
 V. Ward, 18 111. 32; Hotchin v. Kent, Carter v. Beeman, 6 Jones (N. Ca.), 
 
 8 Mich. 526. In Woodward v. Win- L. 44. And is binding on the firm 
 
 ship, 12 Pick. 430, knowledge of a after a new partner has been adrait- 
 
 purchase was lield 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 Hotchin supra. 
 V. Kent, 8 Mich. 526. 5 Eaton v. Whitcomb, 17 Vt. 641. 
 
 2 Wilson V. Brown, 6 Ont. App. 411. 6 Thomas u. Stetson, 62 Iowa, 537 
 
 3 Gray V. Ward, 18 111. 32; Folk v. (49 Am. Rep. 148). 
 
 Wilson, 21 Md. 538; Hamilton v. -Levi??. Latham, 15 Neb, 509 (48 
 Phoenix Ins. Co. 106 Mass. 395; 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
 
 PARTICULAR POWERS BEFORE DISSOLUTION. §42^. 
 
 ity, for tlie firm, and not the 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 partner 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 been 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 tc 
 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 
 
 1 Cotzhaiisen v. Judd, 43 Wis*. 213 Ferguson v. Shepherd, 1 Sneed, 254 
 
 (28 Am. Rep. 539). Bankhead v. AUoway, 6 Cold. 56, 96 
 
 2Brewsterv. Mott, 5 111. 378. Eewes v. Paikman, 20 Pick. 90 
 
 3 Forney u Adams, 74 Mo. 138. Todd v. Lorah, 75 Pa. St. 155. See 
 
 ^Evernghim v. Ensworth, 7 Wend. Livingston v. Pittsb. & Steub. R. R. 
 
 326. A habit of the active partner 2 Giant's Cas. 219; Lowery u Drew, 
 
 to indorse for the accommodation of 18 Tex. 786; Miller u. Dow, 17 Vt. 
 
 others, where the other partner, 235. 
 
 though he frequented the store, was 6 Casey v. Carver, 43 111. 225; Ma- 
 
 not a manager, and is not shown ti?^ vine Co. v. Carver, 42 id. 67 ; Cotz- 
 
 have known of it or of the notices hausen 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. 7Sm. & Mar. perior Ct. 54. 
 
 192 (45 Am. Dec. 310). 8 Crossman v. Shears, 3 Ont. App. 
 
 'Barnard v. Lapeer, 6 Mich. 274; 583. 
 
 443
 
 § *ao. 
 
 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 ofiPer by the other partner in trying to collect the amount 
 due the firm to allow the set-off, if the debtor will pay the balance, 
 is not a ratification,' but paying 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 au assent after an assignment 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. 
 
 2 Drumright v. Philpot, 16 Ga. 
 434 (GO Am. Dec. 738), dividing pro- 
 ceeds of an unauthorized contract of 
 sale ; Michigan Air Line R'y v. Mel- 
 len, 44 Mich. 321, dividing bonds 
 taken for a debt in lieu of cash, by 
 one partner; Banner Tobacco Co. v. 
 Jenison, 48 Mich. 459; Levick's Ap- 
 peal (Pa.), 2 Atl. Rep. 532, dividing 
 the avails of an unautliorized sale of 
 the whole assets; Waller v. Keyes, 
 6 Vt. 257, accepting a deed for an 
 unauthorized land purchase ; Lynch 
 V. Flint, 50 Vt. 46 ; Burnley v. Rice, 
 18 Tex. 481, 494. 
 
 3 Briggs V. Hubert, 14 S. Ca. 620 ; 
 Hotchin v. Kent, 8 Mich. 526, of a 
 silent partner drawing share of 
 profits partly derived from unau- 
 thorized speculations; Eaton v. Tay- 
 lor, 10 Mass. 54, partial payments on 
 a note given after dissolution ; Clark 
 V. Hyman, 55 Iowa, 14, accepting se- 
 curity against an unauthorized guar- 
 anty given by one partner in the firm 
 name; Holmes u. Kortlauder(Mich.), 
 
 31 N. W. Rep. 532, partial payments 
 to an attorney employed by the other 
 partner in a matter not strictly in 
 the scope of business but beneficial 
 to it; Jones v. Clark, 42 Cal. 180, 
 paying interest on a note given by 
 the managing partner of a mine for 
 a purchase of property; Livingston 
 V. Pittsb. & Steub. R. R. 2 Grant's 
 Cas. (Pa. ) 219, permitting stock sub- 
 sci'ibed for without authority to be 
 voted; Porter v. Curry, 50 111. 319, 
 selling a chattel bought by the co- 
 partner without authority or for 
 himself. 
 
 4Tabb V. Gist, 1 Brock. 33; Mason 
 V. Connell, 1 Whart. 381; Wood v. 
 Counell, 2 id. 542; Buckingham v. 
 Hanna, 20 Ind. 110. 
 
 5 Hurt V. Clarke, 56 Ala. 19 (28 
 Am. Rep. 751). 
 
 6 Carter v. Beeman, 6 Jones (N. 
 Ca.), L. 44. 
 
 7 Noble V. Metcalf, 20 Mo. A pp. 360. 
 « Clark V. Sparhawk, 2 Weekly 
 
 Notes (Pa.), 115. But see the case 
 cited, supra, p. 122, 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; 5 Johnson v. Crichton, 56 Md. 108; 
 Kemeys-r. Richards, 11 Barb. 312; Hewes v. Parkman, 20 Pick. 90; 
 Corwin v. Suydam, 24 Oh. St. 209. Windham Co. Bank v. Kendall, 7 R. 
 
 2 Hamilton v. Hodges, 30 La. Ann. I. 77 ; Jones v. Booth, 10 Vt. 268. 
 Part n, 1290; Haynes u, Sechrest, 13 SMaltby v. Northwestern Va. R. 
 Iowa, 455; Wise v. Copley, 36 Ga. R. Co. 16 Md. 422; Hodges v. Ninth 
 508; Gray v. Ward, 18 111. 32; Ke- Natl B'k, 54 id. 406; Briggs y. Hubert, 
 meya v. Richards, 11 Barb. 312. 14 S. Ca. 620; Crozier v. Kirker. 4 
 
 3 Greeley v. Wyeth, 10 N. H. 15. Tex. 252 (51 Am. Dec. 724) ; 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 arrangement 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 tiansaction of the ordinary business of the firm, 
 and the carrying out of the declared ol)jects 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 
 224, 227; Jolmsion v. Dutton, 27 Ala. Salk. 202; and Cuirithers v. Jarrell, 
 245 ; Western Stuge Co. v. Walker, 2 20 Ga. 842. 
 
 446 .
 
 POWER OF A MAJORITY. g 433. 
 
 particular practices or mode of conducting ordinary trans- 
 actions, or regulating the internal affairs of the partnership, 
 the majority must 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 compensation. 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 V. Harris, Turn. & R. 496 ; 4G5 ; and see Stupart v. Arrovvsmith, 
 Blisset V. Daniel, 10 Hare, 493; John- 3 Sm. & G, 176. 
 
 ston V. Dutton, 27 Ala. 245; Western SGansevoort v. Kennedy, 30 Barb. 
 
 Stage Co. V. Walker, 2 Iowa, 504; 279. 
 
 Nolan V. Lovelock. 1 Montana. 224, ^ staples v. Sprague, 75 Me. 458; 
 
 227; Zabrislvie V. Hackensack & N. Western Stage Co. u. Walker, 2 Iowa, 
 
 Y. R. R. 18 N. J. Eq. 178, 183; Kirk 504. 
 
 t'. Hodgson, 3 Johns. Ch. 400, and "Peacock r. Cummings, 46 Pa. St. 
 
 cases cited 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, 326. may not have power to change the 
 
 sMacdougall v. Jersey Imperial management. C, B. & Q. R. R. v. 
 Hotel Co. 2 Hem. & M. 528. Hoyt, 1 111. App. 374. 
 
 « Robinson v. Ihompson, 1 Vernon, 
 
 447
 
 § 434. CONDUCT OF THE BUSINESS. 
 
 workinj^ 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 thej' might wish, is not in good faith, and the court 
 could compel them to rescind such agreement.^ 
 
 § 434. in fiiiulamental matters. — While the limits 
 
 of justifiahle deviation are difficult to define, 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 r. Creary, 30 Cal, 290. 2 Const v. Harris, Turn. & Russ, 
 
 "Where the majority of stockholders 496, 518, 525; Blisset v. Dauiel, 10 
 
 in a mining corporation which had Hare, 493, 523, 527. 
 
 leased its hind bouglit out tlie lessee 3 Const v. Harris, Turn. & R, 496; 
 
 and formed a partnership, agreeing Western Stage Co. v. Walker, 2 
 
 to vvorli. together as shareholders in Iowa, 504. 
 
 electing directors favorable to tliem- . ^ Const v. Harris, Turn. & R. 496, 
 
 selves, and not to sell or buy its 518. 
 
 stock except on joint account, this 5 Livingston r. Lynch, 4 Johns. Ch. 
 
 is not against public policy, but a 573. 
 
 prudent management, no other stock- » Smith v. Goldsworthy, 4 Q. B. 
 
 holder being injured or complaining. 430, where it was sought to reduce 
 
 Faulds V. Yates, 57 111. 416. the capital. 
 
 448
 
 POWER OF A MAJORITY. g 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 
 cliange 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. 
 
 Thus, 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 ■? Southern Steam Packet Co. v. 
 
 Ch. 358; Const r. Harris, Turn. & R. Magrath, McMull. (S. Ca.) Eq. 93. 
 
 517, the two leading cases, both by 8 Abbot v. Johnson, 32 N. H. 9. 
 
 Lord Eldon ; Zabriskie v. Hacken- 9 Bill v. Porter, 9 Conn. 23. 
 
 sack & N. Y. R. R. Co. 18 N. J. Eq. lOChadsey v. Harrison, 11 111. 151; 
 
 178, 183. Cooper v. Frederick, 4 G. Greene, 
 
 2Tabbr. Gist, 6Call(Va.), 279. 403; Lamalere v. Caze, 1 Wash. C. 
 
 3 Livingston v. Lynch, 4 Johns. C. 435. See Gansevoort v. Kennedy, 
 
 Ch. 573. 30 Barb. 279. 
 
 * Smith V. Goldsworthy, 4 Q. B. ^^ Cooper v. Frederick, 4 G. Greene 
 430. (Iowa), 403. And see Gregory v. 
 
 * Gansevoort v. Kennedy, 30 Barb. Patcliett. 33 Beav. 595. 
 
 279. 12 Bird v. Fake, 1 Pin. (Wis.) 290 ; 
 
 "Cooke V. Allison, 30 La. Ann. Horback v. Huey, 4 Watts, 455; Bun 
 
 Part II, 903. V. Morris, 1 Caines, 54. 
 
 Vol. I — 29 449
 
 436. 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 companj'- and 
 throwing 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 number 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 knowledgCj if 
 amounting to acquiescence, will supply the want of authority.* 
 
 1 Moore v. Knott, 12 Oregon, 260. porations than to the powers of part- 
 2Harter v. Wrigley, 48 Ga. 495. ners. They can be found in Lindley 
 
 2 Gregory v. Patchett, 33 Beav. 595. on Partnership, pp. 604-5. 
 
 * See generally under Good Faith. ^ Abbot v. Johnson, 32 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 Call (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 jn 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 name of one partner 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. 
 
 oa 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 alono 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; and if 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 must 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 partner inures to the benefit 
 
 1 Mills V. Barber, 4 Day, 430 ; Dou- De Tastet v. Carrol, 1 Stark. 88 
 gal V. Covvles, 5 id. 515; Booe v. Clement v. British Amer. Assur. Co, 
 Caldwell, 13 Ind. 12; Walden v. 141 Mass. 208. 
 
 Sherburne, 15 Johns. 422; Augusta < Williams v. More, 63 Cal. 50 
 
 Wine Co. v. Weippert, 14 Mo. App. Harris v. Pearce, 5 111. App. 622 
 
 483. So of a loan, ' Sherwood v. Eggleston v. Boardman, 37 Mich. 17, 
 
 Snow, 46 Iowa, 481 ; 26 Am. Rep. 155. 5 Smith v. Hill, 13 Ark. 173. 
 
 2 Lambert's Case, Godbolt, 244; 6 Jackson u. Bohrman, 59 Wis. 422 
 Badger V. Daenieke, 56 Wis. 678. 7 Gage v. Rollins, 10 Met. 348; 
 
 3 Anon. V, Layfield, 1 Salk. 291 ; Jackson v. Bohrman, 59 Wis. 422. 
 
 452
 
 CONTRACTS WITH ONE PARTNER. § 438. 
 
 of all;' hence, a law firm may sue upon the special employment of 
 one partner." 
 
 The most usual instances 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 name of one partner. — 
 
 It is to be noticed that we are considering the 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 question 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. Woll. illegal. Hopkinson v. Smith, 1 Bing. 
 
 & Hod. 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. 
 
 zjacksou tj. Bohrman, 59 Wis. 422. * Tom r. Goodrich, 2 Johns. 213; 
 
 But where an attorney keeps an of- Willis v. Hill, 2 Dev. & Bat. (N. Ca.) 
 
 fice in a town other than that in L. 231; Moore v. Stevens, CO Miss, 
 
 which he practices, which is in 809; United States i;, Atstiey, 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 pei'formed by the clerk, v. Creighton. 3 Rich. (S. Ca.) L. 273; 
 
 collection of fees was defeated either and see Walden v. Sherburne, 15 
 
 on the ground of public policy, the Johns. 423; Butterfield v. Hemsley, 
 
 courts desiring to keep the profes- 12 Gray, 226; Harris v. Miller, Meigs 
 
 sion pure, and not allow employ- (Tenn.), 158 (33 Am. Dec. 138). 
 
 ments to be attended to by clerks, 8 Tuttle V. Eskridge, 2 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, 422). 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 
 
 (aff. 6 111. App. 166). 
 453
 
 §439. 
 
 CONDUCT OF THE BUSINESS. 
 
 This rule does not apply if the copartner was secret, else 
 the latter could always escape liability.^ 
 
 § 439, Nogotial)Ie paper made in the name of one partner. 
 
 A fii'in name being the agreed sytnbol 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.' 
 
 I Chamberlain v. Madden, 7 Rich. 
 L. 395. Contra, see Davidson v. 
 Kelly, 1 Md. 492. 
 
 2SiflFkin v. Walker, 2 Camp. 308; 
 Emly V. Lye, 15 East, 7; Lloyd v. 
 Ashby, 3 C. & P. 138; Ex parte Bo- 
 litho, Buck. 100; Bevan v. Lewis, 1 
 Sim. 376; Driver v. Burton, 17 Q. B. 
 989 ; Nicholson v. Ricketts, 2 E. & E. 
 497; Williams v. Thomas, 6 Esp. 18; 
 Murray v. Somerville, 2 Camp. 99; 
 Bottomley v. Nuttall, 5 C. B. (N. S.) 
 122; Miles' Claim, L. R. 9 Ch. 035; Le 
 Roy V. Bayard, 2 Pet. 186 ; Coote v. 
 Bank of U. S. 3 Cranch, C. C. 95 ; Re 
 Herrick, 13 Baukr. Reg. 312; Ripley u. 
 Kingsbury, 1 Day, 150, n. a; Strauss 
 
 ]v. Waldo, 25 Ga. 641; Macklin v. 
 
 ' Crutcher, 6 Bush, 401 ; Ostrom v. 
 Jacobs, 9 Met. 454; Uhler v. Brown- 
 ing, 28 N. J. L. 79 ; Graeff v. Hitch- 
 man, 5 Watts, 454; Farmers' Bank v. 
 Bayless, 35 Mo. 428; Dryer v. San- 
 der, 48 id. 400; Coster v. Clarke, 3 
 Edw. Ch. 411; Allen v. Coit, 6 Hill, 
 
 318; Siegel v. Chidsey, 28 Pa. St. 279; 
 National Bank v. Thomas, 47 N. Y. 
 15; Holmes v. Burton, 9 Vt. 252; 31 
 Am. Dec. 621 ; Cunningham v. Smith- 
 sou, 12 Leigh (Va.;, 32 ; Goldie v. Max- 
 well, 1 Up. Can. Q. B. 424. Contra, 
 Seekel v. Fletcher, 53 Iowa, 330; 
 Paine v. Dwinel, 53 Me. 52; Tucker v. 
 Peaslee, 36 N. H. 167 ; Hill v. Voor- 
 hies, 22 Pa. St. 68; Puckett v. Stokes, 
 2 Baxter (Tenn.). 442; Burnley v. 
 Rice, 18 Tex. 481, 497; Sessums v. 
 Henry, 38 id, 37; Foster v. Hall, 4 
 Humph. (Tenn.) 340. Where two 
 establishments in the same place 
 and same business were conducted 
 by the same person as proprietor of 
 one and partner in the other, and ho 
 obtains money from a bank on 
 checks signed by him as agent, the 
 firm may show that they do not owe 
 the bank. Mechanics & Traders' Bk. 
 V. Dakin, 24 Wend. 411. 
 
 3 Ostrom V. Jacobs, 9 Met. 454; 
 Coote V. Bank of U. S. 3 Cranch, C. 
 
 454
 
 CONTRACTS WITH ONE PARTNER. § 440. 
 
 In Crozier v. Kirker, 4 Tex. 252, 257 (51 Am. Dec. 724), it was 
 said that if the note signed by one partner appear on its face to 
 have a joint operation and to be on partnership account, the payee 
 can 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. Liability of firm on original consideration when 
 not bound by the paper. — Where the individual paper of 
 one partner is taken, yet 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 Cint. Super. Ct. Rep. 383, T., P. & Co., 
 who had been in the habit of borrowing from the plaintiff, 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. 308 ; 
 
 for the loan was payment so as to Denton v. Rodie, 3 Camp. 493; Maffet 
 
 take away recourse on the firm or v. Leuckel, 93 Pa. St. 468; Burns v. 
 
 not was held a question of intention Parish, 3 B. Mon. 8 ; Mackliu v. 
 
 or agreement, to be left to the jury, Crutcher, 6 Bush, 401 ; Allen v. Coit, 
 
 in Smith v. ColUns, 115 Mass. 388. 6 Hill, 318; Smith v. Collins, 115 
 
 As to. the effect of an indorsement Mass. 388; Duval v. Wood, 3 Lan- 
 
 over by one partner in his own name sing, 489; Graeff v. Hitchman, 5 
 
 of a note in the name of the firm, see Watts', 454; Hoeflinger v. Wells, 47 
 
 § 200. Wis. 628 ; Sorg v. Thornton, 1 Cint. 
 
 1 Smith V. Smyth, 42 Iowa, 493. Super. Ct. Rep. 383; Weaver v. Tap- 
 
 '-JReevs v. Hardy, 7 Mo. 348; Her- scott, 9 Leigh (Va.), 424; Cuuuing- 
 
 som V. Henderson, 3 Foster (23 N. ham v. Smithson, 12 Leigh, 32. 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 boo,k- 
 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 Ellenborough 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 own name binds the firm, unless 
 the statute requires an acceptance to be in writing.^ Bat 
 
 1 Wells V. Masterman, 2 Esp. 731 ; Up. Can. C. P. 230, on the ground 
 Mason v. Rumsey, 1 Camp. 384; Jen- that a partner can only bind the 
 kins V. Morris, 16 M. & W. 879; Dol- firm in the firm name. In the latter 
 man r. Orchard, 2 C. & 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; Pannell r. was unauthorized for other reasons. 
 Phillips, 55 Ga. 618; Beach v. State And see Taber v. Cannon, 8 Met. 456. 
 Bank, 2 Ind. 488; Cunningham v. In Markham v. Hazen, 48 Ga. 570, 
 Sinithson, 12 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, whoso business was the pub- 
 be written, Re Adansonia Co. L. R. lication of a newspaper called Tlie 
 9 Ch. App. 635; Ileenan v. Nash, 8 Opinion. One partner accepted tlio 
 Minn. 407, and Hovey v. Cassels, 30 bill thus: " Accepted for The Opinioii 
 
 456
 
 CONTRACTS WITH ONE PARTNER. § 441. 
 
 the accepting partner may be sued separately if his accept- 
 ance was unauthorized and not binding on the firm.^ 
 
 Where a partner 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 Rochester 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 bill 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 ita 
 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. T. 
 
 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 
 
 lOwen V. Van Uster, 10 C. B. 318. they are inconsistent with it. 
 
 2i2e Barnard, 33 Ch. D. 447; Mai- sheimsdyk v. Kane, 1 Gall. 630; 
 
 colmson v. Malcolmson, 1 Irish L. R. Farmers' Bank v. Bayliss, 41 Mo. 
 
 Ch. D. 228, where he accepted for 274, 287. And see Beebe v. Rogers, 
 
 the M. Spinning Co. and self. For 3 Iowa, 319; Morse r. Richmond, 97 
 
 cases of use by a partner of a name 111. 303 (aff'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. Cowles, 5 Day, 511; signed in his own name as "trustee," 
 
 McKiuney v. Bradbury, Dallam « Cunningham v. Smithson, 12 
 
 (Tex.), 441 ; Beach v. State Bank, 2 Leigh, 32. 
 
 Ind. 488. And see Denton v. Rodie, "As where a bill was drawn upon 
 
 3 Camp. 493, where the firm was Ashbj' & Rowland in the name of 
 
 held liable not on the paper but as Ashby & Co., but accepted as Ash by 
 
 for a loan to it. & Rowland, the acceptance binds all 
 
 457
 
 § 413. 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.' 
 
 § 44:2. Renewal of firm debt by individual note.— Where 
 
 a firm debt is renewed on the individual note of a single partner, 
 with tlie assurance that the other is to sign, and the latter com- 
 plained of the omission of his name, as showing a desigii 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 
 w^hich 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, 2 B. & 369); Etheridge v. Binney, 9 Pick. 
 
 Ad. 23. See Faith v. Richmond, 11 272, 274; U. S. Bank v. Binney, 5 
 
 A. «& E. 339. An order on H., "gen- Mason, 17G; Gernon v. Hoyt, 90 N. 
 
 eral partner," and accepted in the Y. 031; Buckner v. Lee, 8 Ga. 285; 
 
 firm name, is an order on the firm, Strauss v. Waldo, 25 Ga. 041; Boyle 
 
 which consisted of H. and a special v. Skinner, 19 Mo. 82; Mercantile B'k 
 
 partner, Carney v. Hotchkiss, 48 v. Cox, 38 Me. 500, 50(5 ; Oliphant v. 
 
 Mich. 276. Mathews, 16 Barb. 008 (cited appro v- 
 
 iNicl.olls V. Diamond, 9 Ex. 154; ingly in Yorkshire Banking Co. v. 
 
 Mare v. Charles, 5 E. & B. 978. Beatson, 4 C. P. D. 204); Nat'l Bank 
 
 2 Horsey v. Heath, 5 Oh. 353; v. Ingraliam, 58 Barb. 290; Puckett 
 
 McKee v. Hamilton, 33 Oh. St. 7. v. Stokes, 2 Baxter, 442 ; and see 
 
 ^Ex parte Bolitho, Buck. 100; Williams v. Gillies, 75 N. Y. 197 (rev. 
 
 Yorkshire Banking Co. v. Beatson, 4 13 Hun, 422). Contra, that it is pre- 
 
 C. P. D. 204; Bank of Rochester v. suinably a partnership act, MilBln v. 
 
 Monteath, 1 Den. 402, 405 (43 Am. Smith, 17 S. & R. 165 (svhich was 
 
 Dec. 681); Manufacturers', etc. Bank doubted in Burrouglis' Appeal, 26 
 
 V. Winship, 5 Pick. 11 (16 Am. Dec. Pa. St. 204, but said in Jones v. 
 
 458
 
 CONTRACTS WITH ONE PARTNER. § 443. 
 
 In Fosdick v. Van Horn, 40 OIi. 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 he 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, o^ 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 kimself 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 jDartners.'' 
 
 Sv5 if mercantile paper payable to one partner belongs to the 
 firm, whose name is also his name, the fact of the partnership be- 
 ino- concealed, his indorsement of the notes renders his secret part- 
 ners liable.* 
 
 Fegely, 4 Phila. 1, 2, never to have ney, 5 Mason, 176 •, Wiusliip v. B'k 
 
 been overruled); Yorkshire Banking of U. S. 5 Pet. 539 532. See Tlieilen 
 
 Co. t?. Beatson, 4 C. P. D. 204; 5 id. v. Hann, 27 Kan. 778; Macklin v. 
 
 109, presumed to be for the firm, if Crutcher, 6 Bush, 401; Moaler. Hol- 
 
 maker had no other business. lins, 11 Gill& J. 11 ; Getchell v. Fos- 
 
 1 S. P. In re Munn, 3 Biss. 442. So ter, 106 Mass. 42; Thorn v. Smith, 21 
 of insurance on partnership prop- Wend. 364, 36 J-7; National Bank v. 
 erty. Ingraham, 58 Barb. 290; Crocker 
 
 2 As in Marvin v. Buchanan, 62 v. Colwell, -^6 N. Y. 212; Gernon v. 
 Barb. 468. Hoyt, 90 N. Y. 631 ; Gavin v. 
 
 3 Stephens v. Reynolds, 5 H. & N. Walker, 14 Lea, 643. 
 
 513; 1 F. & F. 739; 2 id. 147; York- 4 Mohawk Nat'l B'k r. Van Slyck, 
 Bhire Banking Co. v. B atson, 4 C. P. ,29 Hun, 1S8. 
 D. 204; 5 id. 109; U. S. Banku Bin- 
 
 459
 
 g 444. CONDUCT OF THE BUSINESS. 
 
 Of course, if tlieve is a firm name, a partner cannot cast upon the 
 firm tlio 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 sufficient. 
 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;^ or 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 r. Browning. 28 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. Gong Choy, 13 Oregon, bility of the firm of Jolin Winship in 
 205. Manufacturers', etc. Banii v. Wm- 
 
 3 Clement v. British Am. Assur. ship, 5 Pick. 1 (16 Am. Dec. 3G9), and 
 Co. 141 Mass. 298. A note given by Winship v. Bank of U. S. 5 Pet. 539. 
 the ostensible partner in whose namo 5 Jn re Warren. 2 Ware, 322 ; South 
 the firm was carried on, to his dor- Carolina Bank v. Case, 8 B. & C. 
 mant partner, for the amount of 427; 2 Man. & Ry. 459. See Morse v. 
 capital the latter had contributed, is Richmond, 97 111. 303 (aff. 6 111. App. 
 tlie maker's individual note. i?e 166). 
 
 Waite, 1 Low. 207. 6Le Roy r. Johnson, 2 Pet. 186, 
 
 ♦ Bank of Rochester v. Monteath, 1 200. 
 Den. 402 (43 Am. Dec. 681); York- ^Kitner r. Whitlock, 88 III. 513-; 
 shire Banking Co. v. Beatson, 4 C. Getcliell v. Foster, lOG Mass. 42. 
 P. D. 204 ; s. C. 5 id. 109. And this « Holland v. Long, 57 Ga. 36, 40. 
 
 460
 
 CONTRACTS WITH ONE PARTNER. § 445. 
 
 Ill Crocker v. Colwell, 46 N. Y. 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, Dimniick'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.^ 
 
 § 445. 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 w^as 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 for acts of the agent in 
 his own name, 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. 244; Tucker v. Peaslee, 36 N. H. 167; 
 
 2 Seekel v. Fletcher, 53 Iowa, 330; Baxter v. Clark, 4 Ired. (N. Ca.) L. 
 Sprague v. Ainsworth, 40 Vt. 47. 127; Poole v. Lewis, 73 N. Ca. 417; 
 And see Folk v. Wilson, 21 Md. 538. Reynolds v. Cleveland, 4 Cow. 2!!<3 
 
 3 Crocker v. Colwell, 46 N. Y. 212. (15 Am. Dec. 369); Howell v. Adams, 
 «S, Ca. Bank v. Case, 8 B. & C. 427; 68 N. Y. 314, 320; Poillon v. Secor, 
 
 Vera v. Ashby, 10 B. & C. 288; LI. 61 id. 456; Crockery. Colwell, 46 id. 
 
 & W. 20; Wintle v. Crowther, 1 Cr. 213; Everi'tt v. Cliapman, 6 Conn. 
 
 & J. 316; 9 L. J. Ex. 65; Jn re War- 347; Graeff v. Hitchman, 5 Watts, 
 
 ren, 2 W^are, 322; Palmer v. Elliot, 1 454; Mifflin v. Smith, 17 S. & R. 165; 
 
 CliiT, 63; ^-jcj^arfe Law, 8 Deac. 541; McNair v. Rewey, 62 Wis. 167; 
 
 Bigelow V. Elliot, 1 Cliff. 28 ; Bisel v. Holmes v. Burton, 9 Vt. 252 (81 Am. 
 
 Hobbs, 6 Blackf. 479; Morse r. 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, 20 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.^ In 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 pm'chase 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 (23 mant. Contra, Miller v. Manice, 6 
 N. H.), 498, r)04. The New Hamp- Hill, 114. 
 
 shire cases seem to go a little farther l Palmer v. Elliot, 1 Cliff. 63. 
 than the others in holding the firm 2 Manufacturers', etc. Bank v. Win- 
 liable. Griffith uBuffum, 22 Vt. 181 ship, 5 Pick. 11 (16 Am. Dec. 369); 
 (54 Am. Dec. 64); Goddard v. Brown, Buckner v. Lee, 8 Ga. 285. But see 
 11 Vt. 278, that tlie partner cannot g 447. 
 
 object to being sued alone. Alexan- 3 One judge dissented, and the case 
 der V. McGinn, 3 Watts, 220, 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 PAETNER. § 446. 
 
 relations to the debt or debtor, and does not enable the 
 creditor either to look to the firm or to share 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 
 and 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, 267. On this 
 
 ified in Louisiana, if the firm has re- principle it was decided in Barton v. 
 
 ceived the benefit. Roth v. Moore, Hanson, 2 Taunt. 49, that, if several 
 
 19 La. Ann. 86; Penn v. Kearny, 21 persons haul with their individual 
 
 id. 21 ; Lagan v. Cragin, 27 id. 352. horses the several stages of a coach, 
 
 2 Evans v. Winston, 74 Ala. 349; sharing the profits, they are not 
 
 Person V. Monroe, 1 Foster (21 N. H.), jointly liable for the feed of the 
 
 462; Elliot v. Stevens, 38 N. H. 311, horses. 
 
 McLinden v. Wentworth, 51 Wis. 3 Young v. Hunter, 4 Taunt. 582; 
 
 170; Logan v. Bond, 13 Ga. 192; Mat- Atwood v. Lockhart, 4 McLean, 350; 
 
 lack V. James, 13 N. J. Eq. 126, Pol- Smith v. Hood, 4 III. App. 360; Watt 
 
 lock r. Williams, 42 Miss. 88; Burns v. Kirby, 15 111. 200; Duncan v. 
 
 V. Mason, 11 Mo. 469; Wittram v. Lewis, 1 Duv. (Ky.) 183; Ketchum v. 
 
 Van Wormer, 44 111. 525, Bank v. Durkee, Hoffm. (N. Y.) 538; Brooke 
 
 Sawyer, 38 Oh. St. 339, 342; Valen- v. Evans, 5 Watts, 196; Doually v. 
 
 tine V. Hickle, 39 id. 19, 27, Donally Ryan, 41 Pa. St, 306; Bank v. Gray, 
 
 V. Ryan, 41 Pa. St. 306; Foster v. 12 Lea (Tenn.), 459; Taggart v. 
 
 Barnes, 81 id. 377; McNaughton's Phelps, 10 Vt. 318 ; Howell v. Sewing 
 
 Appeal, 101 id. 550; Stebbins v. Wil- Machine Co. 12 Neb. 177, 179. 
 lard, 53 Vt. 665 ; Robertson v. Jones, * Young v. Hunter, 4 Taunt. 582. 
 
 463
 
 g44G. 
 
 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 balance Avas 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. 121; 
 Evans v. Winston, 74 Ala. 349, 352, a Asbuiyr. Flesher, 1 1 Mo. GIG; Farm- 
 mortgage was made b\' one partner ers' Bank v. Bayless, So Mo. 428; 
 
 in consideration of $150, loaned by 
 tbe mortgagee to tlie mortgagor, 
 "then entering into a partnership 
 with R. in the name of R. &N.," and 
 the court said that this might mean 
 in order to replenish the stock, 
 
 Farmers' Bank v. Bayliss, 41 Mo. 274; 
 Tucker v. Peaslee, 36 N. H. 167; Cos- 
 ter V. Clarke, 3 Edw. Cli. 411 ; Ryder 
 V. Gilbert, IG Hun, 163; National 
 Bank v. Thomas, 47 N. Y. 15; Willis 
 V. Hill, 2 Dev. & Bat. (N. Ca.)L.231; 
 
 which would be a partnership debt ; Peterson v. Roach, 33 Oli. St. 374 
 or to provide his share of the capital, (30 Am. Rep. 607); Bank v. Sawj'er, 
 
 which would be his individual debt, 
 and there was an equipoise. 
 
 2 Watt V. Kirby, supra. 
 
 aid. ; Taggart v. Phelps, supra. 
 
 4 See 5^515. 
 
 s LeRoy v. Johnson, 2 Pet. 186, 199 
 Smith V. Hoffman, 2 Cranch, C. C 
 G51 ; Guicc v. Thornton, 76 Ala. 466 
 Mechanics' & T. Ins. Co. v. Richard 
 son, 33 La. Ann. 1308 (39 Am. Rep, 
 290); Green v. Tanner, 8 Met. 411 
 Goodrich v. Leland, 18 Mich. HO 
 
 S8 Oh. St. 339; Ah Lep v. Gong 
 Choy, 13 Oregon, 205 ; Graeff v. 
 Hitchman, 5 Watts, 454; Foster i: 
 Hall, 4 Humph. (Tenu.)346; Union 
 & Planters' Bk. v. Day, 12 Heisk. 413 ; 
 McLindeu v. Wentworth, 51 Wis. 
 170, 181; Willis v. Bremuer, 60 Wis. 
 622; McCord v. Field, 27 Up. Can. 
 C. P. 391. 
 
 6Hogan V. Reynolds, 8 Ala. 59; 
 Dounce v. Parsons, 45 N. Y. 180. 
 
 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- 
 ])QV alone, though the goods are turned over by him to the 
 tii-m, or bought with that intention.^ 
 
 One partner purcha'^ed flour on his own behalf, but this being 
 tlie business of the firm, the firm claim the benefits of it; but this 
 light 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 single 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- tlie contract does not bind the firm, 
 
 lowed without comment in Simpson the partners are liable in proportion 
 
 V. Baker, 3 id. 581 ; Bird v. Lanius, 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. Cliinn, 6 B. Ann. 193. 
 
 Mon. 305; Bracken v. March, 4 Mo. 3 church u. Sparrow, 5 "Wend. 223 
 
 74; Gates v. "Watson, 54 Mo. 585; "Walden u. Sherburne, 15 Johns. 409 
 
 Nichols V. English, 3 Brewster (Pa.), Hamilton v. Einer, 20 La. Ann. 391 
 
 250; McDonald v. Parker, Sneed Sleeker v. Smith, 46 Mich. 14; Au- 
 
 (Ky.), 208 ; Macklin v. Crutcher, 6 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 r. Corey, 
 
 Chapman v. Devereux. 32 "Vt. 616; 9 45 111. 431 ; Steel v. Jennings, Cheeves 
 
 Am. Law Reg. (O. S.) 419. (S. Ca.), 183; Venable v. Levick, 3- 
 
 2Lockwood V. Beckwith, 6 Mich. Head (Tenia.), 351. 
 163. 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 which firm 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 eliarging 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 mera 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 dehi with the creditor s assent. Here 
 the consideration must be considered to be the release of the in- 
 
 iBlinn v. Evans, 24 111. 317. for the balance, yet it was held that 
 
 2 Sherwood r. Snow, 40 Iowa, 481 C. could recover the balance from 
 
 (26 Am. Rep. ISo). In Rose v. Baker, the firm. 
 
 13 Barb. 230, A. & P., in 1847, were SRulledge v, Squires, 23 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 §§ 340, 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 year after- 6 Asbury v. Flesher, 11 Mo. 610. 
 
 wards, and after dissolution, A. paid <»Bo\vne v. Thompson, 1 N. J. 
 
 a part and gave his individual note L. 2. 
 
 466
 
 CONTRACTS WITH ONE PARTNER. § 448. 
 
 dividual liability of the borrowing partner, since the past benefit 
 or moral consideration is not sufficient.' 
 
 In Union Bank v. 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. C. 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 no 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 being the act of the firm, and that the creditor 
 must show that it was authorized. 
 
 In Meader 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 Barcroft v. Snodgrass, 1 Cold. 2 gee, also, Hurd v. Haggerty, 24 
 
 (Tenn.) 4E0; Nichols v. English, 3 111. 171 ; Davidson v. Kelly, 1 Md. 
 
 Brewster (Pa.), 260; Siegel v. Chid- 492. 
 
 sey, 28 Pa. St. 279; Smith v. Turner, 3 See, also, Guice v. Thornton, 76 
 
 9 Bush, 417; McCreary v. Van Hook, Ala. 466. 
 
 35 Tex. 631 ; Hotchkiss V. Ladd, 36 < Sprague v. Ainsworth, 40 Vt. 47. 
 Vt. 593; 43 id. 345. 
 
 467
 
 § 449. CONDUCT OF THE BUSINESS. 
 
 In Benninger v. Hess, 41 Oh. St. 6-4, 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, 22 Ala. 221. the clerk made the entry withoni, 
 
 2 Bank of Commonwealth v. Mud- din^ctions. 
 
 gett, 44 N. Y. 514 (aff. 45 Barb. 063); * Tucker v. Peaslee, 36 N. H. 167; 
 
 but see Davis v. Blackwell, 5 111. Strong u. Baker, 25 Minn. 442; Wil- 
 
 App 32. lis V. Bremner, 60 Wis, 622; Scott v. 
 
 s Richardson v. Humphreys, Minor Shipherd, 3 Vt. 104. 
 
 (Ala.), 388; Baring v. Crafts, 9 Mot. s Stark v. Corey, 45 111. 431. 
 
 380; Braclies v. Anderson, 14 Mo. ^ Id. sedqu. 
 
 411; Gates i'. Watson, 54 Mo. 585; ^ strong v. Baker, 25 Minn. 443. 
 
 Bracken v. March. 4 Mo. 74, where ^Fosdick y.Van Horn,40Oh.St.459, 
 
 468
 
 CONTRACTS 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.^ 
 
 On the other hand, in Mills v. Kerr, 32 Up. Can. C. P. 68, where 
 the pa^^ee 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 individual partner and Ms 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 that the co- 
 partners would also sign, such surety, after paying the debt, is a 
 
 iTremper v. Conklin, 44 N. Y. 58 (30 Am. Rep. 607); Asbury u. Flesher, 
 
 (aflf. 44 Barb. 450); Crocker, v. Col- 11 Mo. 610; Moore v. Stevens, 6U 
 
 well, 46 N. Y. 213; Smith v. Collins, Miss. 809; Tom v. Goodrich, 2 Johns. 
 
 115 Mass. 388; Benninger v. Hess, 41 213; Krafts v. Creighton, 3 Rich. L. 
 
 Oh. St. 64; Stockwellv. Dillingham, 273. In Walden v. Sherburne, 15 
 
 CO Me. 442 ; Peterson v. Roach, 32 Oh. Johns. 423, it was held that if the 
 
 St. 374 (30 Am. Rep. 607); Mafltet 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 d life reut|ground. See other partner was abroad, although 
 
 Admissions, §§ 331-2. had the surety on such bond paid 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' Bank v. Bayhss, 41 Mo. 274. hold the firm for the loan, since it is 
 
 "Peterson v. Roach, 32 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, but 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 thi' 
 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.' 
 
 §462. Note signed by eacli individually. — 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, assuiues 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 individuals, 
 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- 
 
 1 McKee V. Hamilton, 33 Oh. St. 7. Johnson, 2 Pet. 186. 20O; 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. Tlie evidence ot 
 424. a witness that the partner contracted 
 
 3Uhler V. Browning, 28 N. J. L. individually is not conclusivo, for it 
 79. is matter of opinion rather than ol 
 
 < Smith V. Collins, 115 Mass. 388; fact, and is the very point in dis- 
 Stecker r. 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 PARTNER. § 453. 
 
 eral obligation of each, whether it be in terms joint, or joint 
 and several,^ 
 
 Separate notes by each partner for his portion of a debt due by 
 the firm are not partnership habiUties/ 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- 
 plaintiff in an action upon it is not 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. B77: De Jar- 3 Taylor v. Farmer (111.), 4 N. E. 
 nette v. McQueen, 31 Ala. 230; Free- Rep. 370. See Gandolfo v. Appleton, 
 man v. Campbell, 55 Cal. 197; Pahl- 40 N. Y. 533. 
 
 manv. Taylor, 75 111. 629; Mack v. * Ex parte Stone, 8 Ch. App. 914; 
 
 Woodruff, 87 id. 570; Wellman v. i^e Warren. 2 Ware, 332; Trowbridge 
 
 Southard, 30 Me. 425; Ex parte u. Cushinau, 24Pick. 310;Maynard v. 
 
 Weston. 12 Met. 1 (cited in Harmon Fellows. 43 N. H. 255; Gay v. John- 
 
 V. Clark, 13 Gray, 114); Ensign v. son, 45 N. H. 587; Kendrick v. Tar- 
 
 Briggs, 6 Gray, 329; Duunica v. bell, 27 Vt. 512; Mix v. Shatluck, 50 
 
 Clinkscales, 73 Mo. 500; Buffum v. id. 421 (28 Am. Rep. 511); Berkshire 
 
 Seaver, 16 N. H. 160; Turner v. Jay- Woolen Co. v. Juillard, 75 N. Y. 535; 
 
 cox, 40 N. Y. 470 (dtc;?/m is explained 31 Am. Rep. 488 (aff. 13 Hun, 506); 
 
 in Berkshire Woolen Co. v. Juillard, Nelson v. Healey, 63 Ind. 194 ; Spald- 
 
 75N. Y. 535;31 Am. Rep. 488);Gan- ing u Wilson, 80 Ky. 589, 595; 
 
 dolfo V. Appleton, 40 id. 533; Ellin- Mitchell v. D'Armond, 30 La. Ann. 
 
 ger's Appeal (Pa.), 7 Atl. Rep. 180. P. I, 396; Clanton v. Price, 90 N. Ca. 
 
 And seeMcKenna's Appeal, 11 Phila. 96, 99; Richardson v. Huggins, 23 N. 
 
 84, and Dabuey v. Stidger, 4 Sm. & H. 122; Carson v. Byers, 67 Iowa, 
 
 Mar. 749; Fowlkesu Bowers, 11 Lea. 606; McKee v. Hamilton, 33 Oh. St. 
 
 144; Walsh v. Moser, 38 Tex. 290. 7, 12; 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, 12 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 3 Norton v. Seymour, 3 C. B. 793; 
 
 V. Phelps, 18 Conn. 294, and Aga- IG L. J. C. P. 100; 11 Jur. 312; Hoi- 
 
 warn Bauk v. Morris, 4 Cush. 99. den v. Bloxum, 35 Miss. 381 ; Patch 
 
 Conira, that a joint and several note u 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 Oli. 61. 
 
 against the joint estate, Be Hoi- ^Page v. Carpenter, 10 N. H. 77; 
 
 brook, 2 Low. 259. And though the Gay v. Johnson, 45 id. 587. 
 
 payee refused to receive the note in si^e Thomas, 17 Bankr. Reg. 54; 8 
 
 the firm name, Kendrick v. Tarbell, Biss. 139. 
 
 27Vt. 512. And BO though made after 6 City Bank of New Haven's Ap- 
 
 dissolution, De Jarnetteu. McQueen, peal (Conn.). 7 Atl. Rep. 548; Ex 
 
 31 Ala. 230. But compare Ensign v. parte First Natl. Bank, 70 Me. 3G9 ; 
 
 Briggs, 6 Gray, 329. Or though sub- Smith v. Folton, 43 N. Y. 419; 
 
 stituted after dissolution for a note Thayer u. Smith, 116 Mass. 363. See, 
 
 in the firm name, this does not show also. Booth v. Farmers' & Mech. 
 
 an intent to make it an individual Bank, 74 N. Y. 228 (aff. 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. 255. Contra, see Ladd v. Griswold, 9 111. 25 (46 
 
 Crooker v. Crooker, 52 Me. 267. Am. Dec. 443). 
 
 » Ex parte Nason, 70 Me. 363 ; Ex 
 parte First Natl. Bank, 70 Me. 369. 
 
 473
 
 CONTRACTS WITH ONE PARTNER. § 4oba. 
 
 joint account.' So if the note for a partnership debt is signed by 
 one partner as principal and the other as surety.' 
 
 In Filley v. Phelps, 18 Conn. 291, 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 Frow, 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 the new firm 
 in insolvency. 
 
 If the note was 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 partners 
 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 
 
 i Addison v. Burckrayer, 4 Sandf. ^Re Bucyrus Machine Co. 5Bankr. 
 
 Ch. 498. Reg. 303; Drake v. Taylor, 6 Blatch. 
 
 2PoIlard V. Stanton, 5 Ala. 451. 14; Ex parte Stone, L. R. 8 Ch. App. 
 
 •Forsyth V. 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 Weston, 12 Met. 1. Ex parte First NatT Bank, 70 Me. 
 
 • Pahlman v. Taylor, 75 111. 629; 369. Compare Agawam Bauk v. 
 
 lill 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; bat it was also said that the indi- 
 viduals are sureties for the firm. 
 
 But in Taten 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 iudorser 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 partner 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.* 
 
 iFowlkea v. Bowers, 11 Lea, 144; SiJe Barnard, 33 Ch. D. 447; Mal- 
 ice Farnum, 6 Law Rep. 21 ; Re colmson v. Malcolmson, 1 Irish L. R. 
 Bradley, 2 Biss. 515; Re Adams, 29 Ch. D. 228. 
 
 Fed. Rep, 843; National Bank v. < De Jarnette v. McQueen, 31 Ala. 
 
 Bank of Commerce, 91 111. 271. 230, 232; Booth v. Farmers' & Mech. 
 
 2iJe Blumer, 13 Fed. Rep. 622; Bank, 74 N. Y..228 (aff. 11 Ilun, 258). 
 
 Fayette Nat'l B'k v. Kenney, 79 Ky. And see Kendrick v. Tarbeil, 27 Vt. 
 
 133. And see Stevens v. West, 1 512. 
 
 How. (Miss.) 308. ^ Ex parte Harding, 12 Ch. D. 557. 
 
 474
 
 CHAPTER IX. 
 
 DEGREE OF LIABILITY ON CONTRACTS. 
 
 § 454. Contracts are joint, and not joint and several. — 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.^ 
 
 iSee the opinions of Lord Cairns, v. Graham, 46 Miss. 425, 427 (but see 
 
 Lord Hatherley, Lord O'Hagan and Keerl v. Bridgers, 10 Sm. & Mar. 
 
 Lord Selborne in Kendalls. Hamil- 612); 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. Hollingshead, 14 N. J. L. 402, 
 
 Bi owning, L. R. 20 Eq. 564, 573, 577, 409; Marvin v. Wilber, 52 N. Y. 270; 
 
 where the doctrine of joint and sev- Cowdin v. Hurford, 4 Oh. 132; Weil 
 
 eral liability was affirmed as to com- v. Guerin, 42 Oh. St. 299, 802; Kamni 
 
 mercial firms, but the M. R. was v. Harker, 3 Oreg. 208; Wiesenfeld 
 
 non-committal as to any other part- v. Byrd, 17 S. Ca. lOG, 112-14; Davis 
 
 nerships. That partnersliip con- v. "Willis, 47 Tex. 154; Washburn v. 
 
 tracts are at law joint only was held Bank of Bellows Fulls, 19 Vt, 278, 
 
 in Harrison v. McCormick, 69 Cal. 288. 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, 27 id. 302; if he is a non-resident, as will be 
 
 Crosby v. Jeroloman, 37 Ind. 264; elsewhere shown. In Strong u. Niles, 
 
 Boorum v. Ray, 72 id. 151; Scott v. 45 Conn. 52, 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 formey 
 
 475
 
 g 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 sued 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. Ijiter se. — The balance owed b}' 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 participatio)i 
 in the business and profits, and from knowledge of the books, in 
 which case 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. Spafford, 2 McLean, 
 
 own account in the new firm a bal- 168. Lord Mansfield's dic^(«/rt in Rice 
 
 ance due him by the old for salary, v. Shute, 5 Burr. 2G11, tliat 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 2Starr v. Case, 59 Iowa, 491 ;Rhiner 
 old firm. The i)ayment was partly v. Sweet, 3 Lans. 886 ; Portsmouth r. 
 in cash and partly by a note. In an Donaldson, 82 Pa. St. 202; Raiguel's 
 action by him on the note the de- Appeal, 80 Pa. St. 234, 250; 9 Phila. 
 fendants 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 in 
 iff could retain the cash payment, their individual capacities, each is 
 The court say this is because they liable for half, and not in soUdo. 
 are jointly and severally liable. Lush v, Graham, 21 La. Ann. 159. 
 which is not true. In fact, tlic as- Unless by the agreement of dissolu- 
 Bets 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, a'bd he stands on the cove- 
 debt. The word joint, in the sense nant. Wilmer v. Currev, 2 DeG. & 
 tliat death released one of the joint Sm. 347; Beresford v. Browning, 1 
 promisors entirely so that his estate Ch. D. 30, wliero the covenant was 
 was liable neitlier to the creditor nor held to be joint and several, 
 to contribute to payments by the 3 Bloomfiild v. Buchanan, 14 Ore- 
 survivors, is perliaps nearly obsolete gon, 181; Allison u. Davidson, 2 Dev. 
 except in so far as it affects the Eq. 79. 
 
 remedy. nVentworth v. Raiguel, 9 Phila, 
 
 iMason V. Eldred, 6WalI. 231, 235; 275; Raiguel's Appeal, 80 Pa. St. 
 
 Barry v. Foyles, 1 Pet. 311, 317; 234, 
 
 470
 
 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, Arkansas, 
 Colorado, Georgia, Iowa, Illinois, Kansas, 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 make 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 firm, whether it be large or small, the consequence is 
 the same.* 
 
 'Currey v. Warrington, 5 Harr. 
 (Del.) 147; Kamm v. Barker, SOreg. 
 
 iBundy v. Youmans, 44 Mich. 376; 
 Birdsall v. Bemiss, 2 La. Ann, 449. 
 
 2 See Conklin v. Harris, 5 Ala. 213; 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?;. Buxton, 6 Ark. 24; 5 gee, for example. Rice v. Shute, 
 Burgen u Dwinal, 11 id, 314; Kent 5 Burr. 2611; Abbott'. Smith, 2 Wra 
 V. Walker, 21 id. 411; Cannon v. Bl, 947; Wright v. Hunter, 1 East 
 Dunlap, 64 Ga, 680; Williams v. 20; Doddington v. Hallet, 1 Ves, Sr, 
 Muterbaugh, 29 Kan. 730; Wright v. 497; Rex v. Dodd, 9 East, 516; Sal 
 Swayne, 5 B. Mon. 441 ; Williams v. toun v. Honstoun, 1 Bing. 433, 444 
 Rogers, 14 Bush, 776; Nutt u. Hunt, Medberry v. Soper, 17 Kan. 369 
 4 Sm. & Mar. 702 ; Miller u. Northern Benchley v. Chapin, 10 Cush, 173 
 Bank, 34 Miss. 412; 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. 92 
 30; Putnam r. Ross, 55 id. 116; Gates Hanson v. Paige, 3 Gray, 239, 243 
 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. r. Colt, 8 Neb. 251; Judd Lin- 
 Stump, Cooke (Tenn.), 493, 496. seed & Sperm Oil Co. v. Hubbell, 76 
 
 477
 
 § 469 CONDUCT OF THE BUSINESS. 
 
 Hence a creditor of the firm lias 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 full amount 
 of the debt and not with the proceeds merely of a sale of it. Thus, 
 in Benchloy v. Chapin, 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 snlido 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.' 
 
 § 451). 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, 2 Spears i Moirell v. Trenton Mnt. L. & F. 
 
 (S. Ca.), 170. In Louisiana, however, Ins. Co. 10 Cush. 282; 57 Am. Dec. 
 
 partners in commercial partnerships 92. 
 
 are liable in solido. Villa v. Jonte, ^Re Bigelow, 1 Banki*. Reg. 6G7. 
 17 La. Ann. 9; Gumhel v. Abrams, SLindley on Partnership, p. 37R. 
 20 id. 508. But in onlinary partner- See, also, Ilnrlgson v. Baldwin, 65 111. 
 ships each is liable only for his share. 532; Greenup i\ Barbtv, 1 Bibb, 320; 
 Jones u. Caperton, 15 La. Ann. 475; Wright v. Swayne, 5 B. Mon. 441; 
 Hyams u. Rogers, 24 id. 230; Payne Robinson v. Robinson, 10 Me. 240; 
 V. James, 36 La. Ann. 476, a plant- Frost v. Walker, 60 id, 468; Hess r. 
 ing partnership; Hardeman u. Tab- Werts, 4 S. & R. 148; Whitman v. 
 ler, 36 La. Ann. 555, a partnership Porter, 107 Mass. 522, 524; Cutler v. 
 to construct a railroad. But may Thomas, 25 Vt. 73; First Nat. Bank 
 become liable in solido by special v. Gofl, 31 Wis. 77; Coleman v. Bell- 
 contract, Payne v. James, 30 La. house, 9 Up. Can. C. P. 31. 
 Ann. 476. 
 
 478
 
 DEGREE OF LIABILITY ON CONTRACTS. § 400. 
 
 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 r;^- 
 quire reimbursement if compelled to pay.* And the burden to 
 prove notice of the restriction is upon the partner who claimj it. 
 And a particular creditor may agree with one partner not to hold 
 him liable for the debt.* 
 
 § 4:00. statutory; limited partnersliips.— 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 diflFer from the European system in the great 
 strictness with which statutory requiremeuts 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. 
 
 1 Ala. Fertilizer Co. v. Reynolds, 79 270; Gillan v. Morrison, 1 DeG. «& S. 
 
 Ala. 497 ; Phillips v. Nash, 47 Ga. 218; 431. 
 
 Saufley v. Howard, 7 Daua, 307; * Batty u. McCundie, 3 C. & P. 20;J ; 
 
 Williams v. Rogers, 14 Bush, 77G; Cannop v. Levy, 11 Q. B. 769. See 
 
 Perry v. Randolph, 6 Sm. & Mar. 335 ; Hart's Case, 1 Ch. D. 307. It has been 
 
 Lynch v. Thompson, 61 Miss. 354; held that a person dealing witli a 
 
 Coleman v. Bellhouse, 9 Up. Can. C. joint stock company of a kind where 
 
 P. 31. • unlimited liability is generally stipu- 
 
 zPhiUip* V. Nash, 47 Ga. 218. See lated against, is affected with notice 
 
 Winsbip v. U. S. Bank, 5 Peters, of such custom, but this doctrine is 
 
 r29. not favorably regarded. 
 
 5 Geddes v. Wallace, 2 Bligh's Rep ^ Alaska and the Indian Territory 
 
 not being organized. 
 479
 
 § ICO. 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
 
 CHAPTER X. 
 
 LIABILITY FOR TORTS. 
 
 § 461. Each partner being the agent of the firm, the firm 
 is Hable for his torts committed within 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 of 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 herealter 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 iuto 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 Weod. 
 
 175 (31 Am. Dec. 376). 
 Vol. 1 — 31 481
 
 § 4G2. 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 Fleteher 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 a 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 property for the 
 benefit of the firm."* Where one partner knew that certain 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 Gwynn v. Duffield, QQ 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 was 
 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 
 
 1 Heirn v. McCaughan, 32 Miss. 17. Co. to cure pork for the Confederate 
 
 2Witcher v. Brewer, 49 .4.1a. 119. troops, and on the retreat of the lat- 
 
 'Myei's 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 
 
 * Tucker V. 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, altliough 
 
 instigation of Bruce, compelled Lu- Lucas, had he remained, would have 
 
 cas to rent the premises to Bruce & also furnished pork to them, 
 
 482
 
 LIABILITY FOR TORTS. § 465. 
 
 a member, had by its neglect to receive its grain blockaded tbe rail- 
 road, is no defense.' 
 
 § 403. 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 oue partner was unloading a vessel, in the 
 absence of the other, the plaintiff's leg was broken, through the 
 nesliffence of 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.* 
 
 § 4(>4. 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- 
 be 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.* 
 
 § 465. in collecting debts. — 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 acting 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. R. R. Co. 38 Iowa, 601. 3 Champion v. Bostwick, 18 Wend. 
 
 2St:.bles 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, 12 Rich. L. 595; * Stewart v. Levy, 36 Cal. 159. 
 Woodu Luscomb, 23 Wis. 287. 
 
 483
 
 § 4G5. CONDUCT OF THE BUSINESS. 
 
 tion to be levied upon property in the debtor's hands, which be- 
 longed to a third person; the property Avas 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 firm 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. Dudlej', 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, both 
 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 Kulin 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. 
 
 In Taylor 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 
 
 1 s. p. Chambers v. Clearwater, 1 Keyes, 310 ; 1 Abb. App. Dec. 341 (affg. 
 41 Barb. 200). 
 
 484
 
 LIABILITY FOR TORTS. § 466. 
 
 that tlie surety could not recover. But in s. c, 87 111. 503, it hav- 
 ing appeared that the firm had received the avails of the property, 
 thereby increasing its assets, the other partners were 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 eJBFecting 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, difficult 
 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
 
 § 4G7. CONDUCT OF THE BUSINESS. 
 
 was also lield that, even if the innocent partner sulDScquently ap- 
 prove the act, exempLary damages cannot be 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 violations 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 
 malicious 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 Vleck, 69 111. 478, R. & J. had been agents for 
 the owner of property in renting a house. The tenant not paying, 
 J., on behalf of the landlord and in the absence of R., 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 3 Woodliug v. Knickerbocker, 31 
 Dowl. 160. Minn. 268. 
 
 2 Ai buckle v. Taylor, 3 Dowl. 160; ^And see Petrie v. Laraont, 1 Car. 
 Rosenkrans v. Barker, 115 III. 331. & M. 93. 
 
 486
 
 LIABILITY FOR TORTS. § 468. 
 
 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 Crumless 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, 13i 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 mortgage 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 tam 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 
 
 I See, also, Robinson v. Goings, 63 Miss. 500. d 
 
 487
 
 § 4G8. CONDUCT OF THE BUSINESS. 
 
 which the action was brought being penal, the innocent partner?^ 
 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 the part 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 actual 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.' 
 
 1 Attorney-General v. Strangforth, did not know it, but afterwards as- 
 Bunb. 97; Attorney-General v. Bur- sented. Exemplary damages were 
 ges, id. 233; Attorney-General v. allowed against liim. See Peckham 
 Wcekes, id. 233; Rex v. Manning, Iron Co. v. Harper, 41 Oli. St. 100, 
 Comyn, 016; Stockwell v. United 109. Contra, see Rosenkrans r. Bar- 
 States. 13 Wall. 531 (aff. s. C. 3 Cliff, ker, 115 111. 331. 
 
 284); United States v. Tliomasson, 4 ^McNeely v. Haynes, 76 N. Ca.. 
 
 Biss. 99; Graham v. Pocock, L. R. 3 123; National Bank of Common- 
 
 P. C. 345. wealth v. Temple, 39 How. Pr. 432. 
 
 2 But see Rex v. Manning, Comyn, 6 Stewart v. Levy, 36 Cal. 159. 
 616. 6 Porter v. Vance, 14 Lea, 627, that 
 
 s Robinson v. Goings, 63 Miss. 500 an attorney is not liable for penaltv 
 (in full, § 466); Brewing v. Berry- and disbarment for his partner's fail- 
 man, 15 New Brunswick, 515; here ure to pay over collections, 
 an active partner tore out inside par- T Ex parte Flood, 23 New Bruns- 
 titions of leased property for the wick, 86. 
 benefit of the firm. The copartner 
 
 488
 
 LIABILITY FOR TORTS. § 471. 
 
 § 469. Ratification. — On the principle that a person does 
 not make himself liable by ratifying an illegal act of another 
 unless 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.^ 
 
 In Riley v. Noyes, 45 Vt. 455, plaintiflF'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 plaintijff 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 was 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 C. & 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 sufficient, 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 liabiHty of 
 partners for the tort of one member of the firm or for the 
 Tort 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 
 the agent of all and not of each, but rests on the usual doc- 
 trine of torts that 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. Turnman, 6 M. & G. 2 Edmonson v. Davis, 4 Esp. 14; 
 236 ; Grund V. Van Vleck, 69 111. 478 ; Attorney-General v. Burges, Bunb. 
 Rosenkrans u. Barker, 115 111. 331. 223; Stockton v. Fry, 4 Gill, 406; 
 
 48J
 
 §472. CONDUCT OF THE BUSINESS. 
 
 FRAUDS AND MISREPRESENTATIONS. 
 
 § 472. Deceit in regard to their own property. — The sub- 
 ject of the hability of partners for the deceits, frauds or 
 misrepresentations of each other is separated from their 
 liabihty for other torts because, unlike the latter, the lia- 
 bility 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 authorities 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 off as oil land, procured a sale. All 
 the partners were held liable, although the others are entirel}' 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 apply, 
 for if the copartner had not so informed him both are bound by 
 
 Head v. Goodwin, 37 Me. 181 ; Berryman, 15 New Brunswir-k, 515. 
 
 McCrillis u. Hawes, 38 id. 566 ; Howe Aud so for fraud or inisappropria- 
 
 V. Shaw, 56 Me. 291; Morgan v. tion or conversion. Sadler v. Lee, 6 
 
 Skidraore, 55 Barb. 263; Roberts v. Beav. 324. 
 
 Johnson, 58 N. Y. 613; Mode v. Pen- i Locke v. Stearns, 1 Met. 560 (35 
 
 land, 93 N. Ca. 292; Wliite v. Smith, Am. Dec. 382); Wolf v. Mills, 56 111. 
 
 12 Rich. (S. Ca.) L. 595; Wood v. 360. 
 Luscomb, 23 Wis. 287; Brewing'?;. 
 
 490
 
 LIABILITY FOR TORTS. § 473. 
 
 his false statement, and if tlie copartner had made the statement 
 then the latter's misrepresentation bound both. 
 
 In Strang v. Bradner, 114 U. S. 555 (aff 'g Bradner v. Strang, 
 89 N. Y. 299), phiintiffs, 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 
 I). at they liad been unable to negotiate the notes because made 
 payable at the office of S. & H., and requested other notes in 
 their i)lace. in reliance on which plaintiffs sent other notes, and S. 
 procured tJie discount of them all and put the avails iato the firm's 
 business. The fraud being in the course of business was held to 
 render the innocent partner liable. 
 
 In Thwing v. Clifford, 138 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 assiiinp-^itiov 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 paii- 
 ner if they would have bound the firm if true. 
 
 ' See Reynolds u. Waller, 1 Wash. ^ In re Schuchardt, 15 Bankr. 
 (Va.) 1C4. Reg. 161. 
 
 2 French v. Howe, 15 Iowa, 563; < Sweet u. Bradley, 24 Barb. 549. 
 McKee v. Hamilton, 33 Oh. St. 7. 
 
 491
 
 § 473a. CONDUCT OF THE BUSINESS. 
 
 Rapp r. 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 plaintifi' 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 hefd 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 chargeahle to his copartners, for it 
 is not an act in the conduct of tlie 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, F., a member 3f a 
 firm, persuaded R. to buy out the partners of F., agreeing that he 
 could buy at the invoice price, and fraudulently representing thq.t 
 the invoice was $14,000, when it was in fact but $11,000. The other 
 partners, who were ignorant of the deceit, are not liable, for F. was 
 not their agent in the sale. 
 
 In Chamberlin v. Prior, 2 Keyes, 539; 1 Abb. App. Dec. 338. 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 OF 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 had 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 tiie 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. & G. for money had and 
 Sm. 587; Sadler v. Lee, 6 Beav. 324; received and for negligence in in- 
 Nisbet V. Patton, 4 Rawle, 120 (26 dorsing before dissolution, and were 
 Am. Dec. 122); Blair v. Bromley, 3 held not liable on either count, for 
 Ph. 354; 5 Hare, 542; St, Aubyn v. the money was not received by the 
 Smart, L. R. 3 Ch. App. 646; Pluraer firm but by G., holding that it was 
 V. Gregory, L. R. 18 Eq. 621. not negligence or breach of duty in 
 
 2 In Hammond v. Heward, 20 Up. G. to discount the notes, that being 
 Can. Q. B. 36, 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 bs 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 tliat the money having 
 71 ; Keating v. Marsh, 1 Mont. & A. come into the custody of the firm 
 582 ; aff. on app. Marsh u. Keating. 1 the other partners should have 
 Bing. N. C. 198; 2 CI. & Fin. 250; 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 
 Ry. & Moody, 370; 1 Cr. «fe M. 130; the custody of the house. Mr. Pol- 
 
 2 Tyr. 575. lock, in his admirable Digest of Law 
 
 2 This explanation of these cases, of Partnership, article 24, note, says: 
 that it is because the scope of the "One can hardly see what the 
 businc^Bs included sales of stock, is knowledge or means of knowledg<' 
 not original with rae, 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 TORTS. g 476 
 
 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 ^lot 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. 242, 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 client and absconds with it, his partner is 
 liable.' 
 
 In Alexander v. Georgia, 56 Ga. 478, a firm was selling merchan- 
 
 1 See, also, Coomer r. 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, bj'' duplicate bills and bogus accounts, defrauded the 
 state out of a lai-ge sum; the innocent copartner was lieLl liable to 
 refund, bat contra o£ bills outside of and unconnected with the 
 partnership business; and if the paying agent of the state knew the 
 partner was a'cting 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.' 
 
 § 4^77. If money or property comes into the hands of a 
 partner for purposes 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 by 
 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. ISO, 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 g 480. 621. 
 
 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. 46S, 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 to 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 WROXGFULLY 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 firjTi, 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
 
 g 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 can pass a good title, yet the wrong- 
 ful holder himself cannot be 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, tlie innocent partners are obviouslj' not liable ex ddido, 
 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 use<l by 
 such partner for the firm, or if obtained under such circumstances 
 that the partner could have invested a bona fide bu3'er Avith title, 
 yet the firm does not stand in the relation of a purchaser for value, 
 and the right of thef 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- 
 taining 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' & Mech. 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. (Up. 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. 
 
 § 480. 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. 
 
 Thus, in Kilby v. Wilson, Ryan & Moo. 178, plaintiffs as brokers 
 ])urchased cottons for T. & Co., and paid for them with the check 
 of T. & Co., received by them from T., and delivered to T. the war- 
 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 out of the pur- ment under a statute, 
 chase of a partner with the inten- 2Durant v. Rogers, 87 111. 508; 
 tion of not paying; but the action Royer v, Aydelotte, 1 Cint. Superior 
 was for tlie deceit, and the guilty Ct. Rep. 80. 
 
 jiartner alone was held liable in 3 Blight v. Tobin, 7 Monroe, 612 (18 
 lort, otherwise the innocent partner Am. Dec. 219); Olmsted v. Hotail- 
 
 ing, 1 Hill, 317. 
 499
 
 § 481. CONDUCT OF THE BUSINESS. 
 
 firm of R., C. & Y., and C, by fraudulent representations, induced 
 A. to let him hold it. C. collected the voucher, paid the debt due 
 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 Y. 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 hardly 
 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 FOR 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 copartners 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 advance 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 ce^tui^ 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. 324; De- 2^9 in JSrparfe Apsey, 3 Bro. C. C. 
 
 vaynes v. Noble, Clayton's Case, 1 2G"5; J^o^par^e White.L. R. 6 Ch. 397. 
 
 Mer. 575; Devaynes v. Noble, Bar- ^ Ex parte Heaton, Buck, 38G; 
 
 ing's Case, 1 Mer. 611; Castle v. Bui- Jaques v. Marquand, 6 Cow. 497; 8 
 
 lard, 23 How. 172, 189; Strang v. Wend. 490; Tallmadge v. Penoyer, 
 
 Bradner, 114 U. S. 555; Gray v. 35 Barb. 120; Willett r. Stringer, 17 
 
 Cropper, 1 Allen, 337; Dorenius v. Abb. Pr. 152. 
 
 McCormick, 7 Gill, 49; Fripp v. < Evans u. Bidleman, 3 Cal. 435. 
 
 Williams, 14 S. Ca, 5C2; Gerhardt y. » Harper v. Lamping, 33 Cal. 641. 
 
 Swaty, 57 Wis. 24; Re Ketcbum, I eWhitaker v. Brown, 16 Wend. 
 
 Fed. Rep. 815. 505 (overrules s. c. 11 id. 75). 
 
 500
 
 LIABILITY FOR TORTS. § 4S3. 
 
 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, 4i Oh, St. 69, a public ofiicer put public 
 moneys into the firm, Avith 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 
 pay 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 to his 
 copartners, they are not debtors to the cedui, nor can he 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 
 
 ^And per Lord Cairns, Vj'se v. SHolIerabaek t?. More, 44 N. Y. Su- 
 
 Foster, L. R. 7 H. L. 318, 334. perior Ct. 107. 
 
 2 Evans v. Bidleraan, 3 Cal. 435. «See Emerson v. Durand, 64 Wis. 
 And see Ex parte Heaton, Buck, 386. Ill, 116. 
 
 3 Tvvyford v. Trail, 7 Sim. 93. i 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, tliey 
 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, 217, a partner holding a trust fund 
 took an asset of the firm, being a certilicate of indebtedness due 
 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 trusty 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. 3l9; Trull v. is unimportant, if the partnership re- 
 Trull, 13 Allen, 407 ; Colt v. Lasnier, ceived the benefit, and the firm is 
 9 Cow. 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 wasap- 
 247; Stoddard v. Smith, 11 Oh. St. plied to the business of tlie firm. 
 581;Davi3tJ. Gelhaus,44id.69;Emer- Welker v. Wallace, 31 Ga. 362; Pal- 
 Bon V. 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. 163 (rev. s. O. 9 Phila. 225). < Palmer v. Scott, 68 Ala. 880; 
 
 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 SFlockton v. Banning, L. R. 8 Ch. 
 
 even, it has been said, if by reasona- App. 223; In re Jordan, 2 Fed. Rep. 
 
 ble inquiry he could have ascertained 319. 
 
 the source of the funds. In re ^In re Jordan, 2 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 the firm, and the 
 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 firm 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. Accoiintalbility 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 coj)artner. 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, 2 Fed. Rep. 319. » Vyse v. Foster, L. R. 7 H. L. 318, 
 
 2McCracken v. Milhous, 7 III. App. and 8 Ch. 309; Laird v. Chisholm, 30 
 
 169. Scottish Jurist, 582; Jones v. Foxall, 
 
 8 Tucker 17. Bradley, 33 Vt. 324. 15 Beav. 388, 895; Palmer v. Mitch- 
 
 *The cases where the trust fund ell, 2 M. & K. 672; 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 AccouNXiua. 
 
 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. Summerl, 2 Wash, C. C. 41, a claim bo- 
 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 ihe cestui could 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 scrij) 
 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 aj)pearing on the face of the 
 certificates. 
 
 Somewhat similar is Wallace v. James, 5 Grant'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 ofi&cer 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. Repayment 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- 
 
 * As to accounting for interest, see 2 Case v. Beauregard, 1 "Woods, C. 
 § 787. C. 125. (99 U. S. 119.) 
 
 604
 
 LIABILITY FOR TORTS. g 488. 
 
 ate them, if he has power to receive the amount and release 
 the claim. In fact they have no other way of discharging 
 the debt.^ 
 
 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^nwa 
 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.^ 
 
 CRBIES.'' 
 
 § 488. A partner is not hable 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 imphed.* Sometimes, however, 
 the contrary is enacted by statute in cases of illegal sale of 
 intoxicating liquor.® 
 
 An officer 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 Sherburne v. Goodwin, 44 N. H. the property of the firm, see § 277. 
 271, holding that payments to him 5 State i?, 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, 87 Miss. 379 ; 
 
 as executor. State v. Neal, 27 N. H. 131. 
 
 2 Martin v. Moulton, 8 N. H. 504. 7 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, 34 id. 230. 
 
 < For crimes by one partner against 
 
 505
 
 § 488. CONDUCT OF THE BUSINESS. 
 
 return to the 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 forgerj'' 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.* 
 
 1 United States v. McGinnis, 1 Abb. < State v. Mohr, 68 Mo. 303. 
 U. S. 120. 6 Durham r. People, 5 111. 173. 
 
 JLemonsu. State, 50 Ala. 130. eStoughton i». State, 2 Oh. St. 562. 
 
 » State V. Williams, 103 Ind. 235. 
 
 506
 
 CHAPTER XI. 
 
 PAYMENT, NOVATION AND MERGER. 
 APPLICATION OF PAYMENTS. 
 
 § 489, The general rules for the application of payments 
 bjr-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 tlie 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.* 
 
 iSee Shaw v. Picton, 4 B, & C. ^Wittkowsky v. Reid, 83 N. Ca. 
 
 715; Waters V. Tompkins, 2 C. M. & 116. 
 
 R. 723; Peters v. Anderson, 5 Taunt. ^Fairchild v. Holly, 10 Conn. 17."), 
 
 596; Wittkowsky v. Reid, 82 N. Ca, 184; Philpott v. Jones, 2 A. & E. 41 , 
 
 116; Lysaght v. Davern, 5 Bli. N. R. Mills v. Fowkes, 5 Bing. N. C. 455; 
 
 1; City Discount Co. v. McLeaa, L. Simson v. Ingham, 2 B. & C. 65; 
 
 R. 9 C. P. 692. Alexandria, Mayor of, v. Patten, 4 
 
 2 Bray v. Crain, 59 Tex. 649; Miles Cranch, 317, 320. 
 V. Ogden, 54 Wis. 573. 
 
 507
 
 g 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 uncommunicated 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 lajjsed liabil- 
 ity of the estate.^ 
 
 § 490. Where firm and one partner arc creditors. — Where 
 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. Iiisliam, noticed infra, of A. & B. As agent of A. & B,, he 
 §501. And see Field y. Carr, 5 Bing. sent a bill of exchange which be- 
 13, where this was attempted after longed to D. to Philadelphia, and ia- 
 three years. structed the recipient to pass the 
 
 2 Hooper r. Keay, 1 Q. B. D. 178; proceeds to B.'s account, which was 
 Dorsey v. Wayman, 6 Gill, 59; Sey- done; yet the payment on B.'s ac- 
 mour V. Marvin, 11 Barb. 80. count was held to be a receipt of the 
 
 ^Merrimaa 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'ii. 6 A dictum in Codman v. Arm- 
 
 * See cases under § 412. 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. Daeuieke, 58 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 E. 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 antl one partner as (lel)tors. — Thus, if the 
 firm and also one partner are debtors of a person, a pay- 
 ment generally by the debtor partner 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.' 
 
 "o"- 
 
 1 Russell u. Green, 10 Conn. 269. 3 Brown v. Brabham, 3 Oh. 275; 
 
 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 v. Weister, 2 A. K. Mar. 
 
 ments out of the firm's assets were (Ky.) 277; Fitch v. McCrimmon, 80 
 
 applied by the creditor upon the note. Up. Can. C. P. 183; Simson v. Ing- 
 
 but it was held that the mortgagor ham, § 501, infra. 
 
 was entitled to liave half of them SYoumans v. Heartt, 34 Mich, 
 
 credited upon his mortgage. 397. 
 
 509
 
 § 494. CONDUCT OF THE BUSINESS. 
 
 § 49,3. Partnersliip 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 imp irative and controls Rules I and II above, 
 for otherwise the creditor would be participant in a fraud- 
 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; thatC. 
 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. Stanhopp, 14 R. I. 97; case is modified in other respects by 
 Davis V. Smith, 27 Minn. 390 (this S. C. 29 id. 201). 
 
 2 Downing v. Linville, 3 Bush, 472, 
 510
 
 PAYMENT, NOVATION AND MERGER. § 49o. 
 
 In Thompson v. Brown, 1 Mood. & Malk. 40, Brown was in- 
 debted to the plaintiffs and took Weston into partnership. The 
 phaintiffs 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 6f 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 v. 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., however, assented. 
 
 § 495, indivitlual money.— In the case of individual 
 
 money it is a little different. No doubt a payment by a 
 partner is presumptively on private account. 
 
 2 
 
 '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. 352; Fowke v. Bowie, 4 
 Sumn. 98, 109. And see Sneed v. Harr. &. J. 566. See Scott v. Ray. 
 Wiester, 2 A. K. Mar. 277; Baker v. 18 Pick. 300, where a payment to an 
 Stackpoole, 9 Cow. 420 (18 Am. Dec. assignee for creditors, who was also 
 ."iOS). Such would be the rule as to a himself a creditor, was ordered cred- 
 ;>ayment 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 sucli individual dcbt^ 
 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 jiartnership 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 before principal. 
 
 2. To pay an unsecured debt before a secured debt, unless 
 the security be a third person or his property;' but money 
 realized 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 acconnt. — 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 E. & M. 4;i5), are loading cases on this sub- 
 
 1 Baker r, Stackpoole, s«2>'"; Milrs ^SuulerH v. Knox, 57 Ala. 80; 
 V. Ogtlen, 54 Wis. 573. Jnncs v. Benedict, 83 N. Y. 79. 
 
 2 Lee V. Fontaine, 10 Ala. 755 44 ^ Uunbar v. Garrity, 58 N. H. 575. 
 Am. Dec. 505). <> Richardson v. Coddington, 49 
 
 3 Garrett's Appeal, 100 Pa. St. 507; Midi. 1. 
 Tlie Schooner Stuelnian, 5 Iluglies, 
 
 C. C. 210. 
 
 512
 
 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 was balanced, 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 
 
 1 Sterndale 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, 30 id. 183. 
 
 174; Hooper v. Keay, 1 Q. B. D. 178; 3 Baker v. Stackpoole, 9 Cow. 420 
 City Discount Co. v. McLean, L. R. (18 Am. Dec. 508) ; Lockw. Rev. Cas. 
 9 C. P. 692, 701 ; Alcott v. Strong, 9 380. 
 Vol. 1 — 33 513
 
 g 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. G81; 3 Younge &C. Ex. Q'^Q, 
 one partner was to contribute, as his share of capital, £10,000 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 customers 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 items, 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 
 blinding 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.* 
 
 1 Brooke v. Enderby, 2 Bred, & B. 5 Whitwell v. Warner, 20 Vt. 425; 
 70; Newmarch u. Clay, 14 East, 239. Allen v. Frunet Min. & Smelt. Co. 
 •■i Scott V. Beale. 6 Jur. N. S. 559. 73 Mo. 688. 
 »Simson v. Cooke, 1 Binp^. 452. « Starr v. Case, 59 Iowa, 491. 
 
 * Burland v. Nash, 2 F. «fc F. 687. 
 
 514
 
 PAYMENT, NOVATION AND MERGER. § 500. 
 
 In Bodenhara v. Purchas, 2 B. & Aid. 39, P., being indebted to 
 the firm of B,, C, & D., bankers, gave tliera 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 were 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 
 differeT'Ce was held in the following cases, if the account is con- 
 tinuous: 
 
 In Pemberton v. Oakes, 4 Russ. 151, 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 pa3'ments by him will be applied to the old balance 
 if uo 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 j'ear. 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. & C. 
 
 § 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. 
 
 1 Morgan v. Taxbell, 28 Vt. 498 ; Bradley v. Richardson, 23 id. 720. 
 
 515
 
 § uOl. CONDUCT OF THE BUSINESS. 
 
 had no right to require his general payments to be credited on the 
 old secured debt. 
 
 In Taylor v. Post, 30 Hun, 44G, A. borrowed 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. 
 
 S 501. The creditor, however, mav dissent from con- 
 
 tinning the account. If he does not assent to making the 
 old balance an item in the new account, payments Avill 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. Ingliam 
 died, but his surviving partners continued business. Bruce & Co. 
 at first continued the account without a break, crediting subse- 
 quent payments generally, but 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 books kept but one account. The court held that 
 where the account is continued without a break b}' both parties 
 payments must go against the oldest item; but that the plaintiffs 
 had the right to distinguish, and were not precluded by the entries 
 in their private books not communicated to the debtors.' 
 
 In Burns v. Pillsbury, 17 N. H. 6Q, 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 Sinison v. 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 banldng liouses, which are often eontiuned through gpn- 
 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, ^xq prima facie deemed to be the independ- 
 ent transactions of the new firm, except in banking houses, and 
 that merely striking a balance and carrying it 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. On 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 who 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 or 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 will assume or will 
 
 1 § 385. 2 § 387. 
 
 517
 
 § 603. CONDUCT OF THE BUSINESS. 
 
 pay their share of the dehts, or that the new firm will as- 
 sume the debts, if made witliout 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 tlie 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- 
 new 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 parte Bradbury, 4 Deac. 
 Fry, 1 01. & J. yO; Ex parte Venker, 203; Robb v. Mudge, 14 Gray, 534; 
 2 M. D. & D. 511; Ex parte Peele, C Wild v. Dean, 3 Allen, 57U; Fowle v. 
 Ves. G02; Vera v. Ash by, 10 B. & C. Torrey, 131 Mass. 289; Ay res v. Gal- 
 288-. Re Isaacs, 3 Sawy. 35; 6 Bankr. lup, 44 Mich. 13; Spaunhorst v. Link, 
 Reg. 92; Lee v. Fontaine, 10 Ala. 4li Mo. 197; Merrill v. Green, 55 
 755; 44 Am. Dec. 505; Hicks v. Wy- N. Y. 270; Macintosh v. Fatman, 38 
 att, 23 Aik. 55; Goodenow v. Jones, How. Pr. 145; Campbell v. Lacock, 
 75 111. 48; Locke v. Hall, 9 Me. 133; 40 Pa. St. 448. In Shoemaker v. 
 Manny r. Frasier, 27 Mo. 419; Farm- King, 40 Pa. St. 107, a firm sold out 
 alee v. Wiggenhorn, 5 Neb. 323; its entire business to a third person, 
 Morehead v. Wristou, 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 
 Kounlz V. Holtliouse, 85 id. 233; failed. 
 
 Piano Co. v. Bernard, 2 Lea, 358, 3G0 ; 2 Dwight v. Mudge, 13 Gray, 23. 
 McKeand v. Mortimore, 11 Up. Can. 
 Q. B. 423. 
 
 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 agreement 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 plaintiif. He then sold the other half to Gr., 
 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.* 
 
 § 50i. -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 partner, indebted to one there was no incoming partner: 
 Y., retired, in consideration of wliich Hood v. Spencer, 4 McLean, 108; Hoyt 
 the remaining partners assumed this v. Murphy, 18 Ala. 316, allowing a 
 debt to Y.. and Y. thereupon orally set-off of the claim; Devol v. Mcln- 
 released tlie retiring partner, and an tosh, 23 lud. 529; Hardy u Blazer, 
 agent of the remaining partners by 29 id. 226; Dunlap v. McNeil, 35 id. 
 mistake placed the amount of tlie 316; Haggerty u. Jolmston, 48 id. 41; 
 debt on the books to the credit of X. Way v. Fravel, 61 id. 162; Powers u 
 & Y.. instead of to Y. alone, but X. Fletcher, 84 id. 154. Following are 
 claime 1 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. Nichols, 64 N. Y. 
 65 Wis. 0. in. See Smead v. Lacey, 1 Disney, 
 
 2 Following are the cases where 239, noticed fully under § 510. 
 
 519
 
 § 605. CONDUCT OF THE BUSINEiS. 
 
 tion, and agrees to apply these assets to the debts, this prom- 
 ise inures to creditors,^ 
 
 In Arnold v. Nichols, 64 N. Y. 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 hib oene- 
 fit, for the agreement was not primarily for the benefit of the 
 original debtor.'' 
 
 In Odborn 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 took his 
 place in the 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 br- 
 
 St. 470, 474-6 ; Kountz v. Holthouse, comes liable to the attorneys. McKil- 
 
 85 Pa. St. 233; and Arnold v. Nichols, lip v. Cattle, 13 Neb. 477. 
 64 N. Y. 117. And see Hopkins v. ^S. P. Turner v. Jaycox, 40 N. Y. 
 
 Johnson, 2 La. Ann. 842; Sedam v. 470, 474; but contra, where there 
 
 Williauis, 4 McLean, 51 ; Marsh v. was no incoming partner, Merrill v. 
 
 Bennett, 5 id. 117. A firm indebted Green, 55 N. Y. 270. Possibly Ala- 
 
 for legal services was dissolved by bama and Michigan also make a dis- 
 
 decree fixing the shares of each part- tinction between cases whi-re there 
 
 ner, and adjudging tliat one partner is and is not an incoming partner. 
 
 on paying this debt should take the Compare the foregoing list of cases. 
 
 520
 
 PAYMENT, NOVATION AND MERGER. § 500. 
 
 the retirement of such partner, when nol 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 imctum, 
 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 released. 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 liable.— In the absence of a 
 novation, the original debtor or debtors continue liable, of 
 course, for a debtor cannot affect his own sole liabihty by 
 
 1 Thomas v. Shillabeer, 1 M. & W. Early v. Burt, 68 Iowa, 716; Wild v. 
 124; Clark v. 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. 6J8); Chase v. 118; and Clark v. Billings, 59 Ind. 
 Vaughan, 30 Me. 412; Wildes v. 508. Clark 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, reltase 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 
 
 « Thompson v. Percival, 5B. & Ad. Lodge v. Dicas, 3 B. & Aid. 611, and 
 
 935; Lyth v. Ault, 7 Ex. C67; Re David^v. Ellice, 5 B. & C. l9o ; 7 Dow. 
 
 Clap, 2 Low. 226; Backus v. Fobes, & Ry. 690; aff' g 1 C. & P. 368, which 
 
 20 N. Y. 201; Collyer v. Moulton, 9 also held that such mere promise, no 
 
 R. I. 90; ^tna 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 exteu- 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 apphes to 
 executory contracts; as where services are agreed to be 
 rendered to a person, or goods supphed 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 emplojnnent of 
 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 C. 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 pai-tnership with another in the latter's existing busi- 
 ness, does not thereby become liable for the debts already 
 incurred, nor does the new firm become liable for them. An 
 agreement, express or implied, is necessary to create such 
 liability, not only between the creditors and the new firm 
 but also as between the jDartners; that is to say, the pre- 
 
 iFifieia V. Adams, 3 Iowa, 487; SBarlovv v. Wainwright, 23 Vt. 88 
 Froun u. Davis, 97 Ind. 401. (53 Am. Dec. 79). See § 503. 
 
 2Taggart v. Phelps, 10 Vt. 318. 
 
 533
 
 PAYMENT, NOVATION AND MERGER. 
 
 )07. 
 
 sumption is against the assumption of such hability, and the 
 burden to prove it is upon the one who asserts it. This is 
 hke 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 Hable.^ 
 
 In Gaus v. Hobbs, 18 Kan. 500, P. and H. met on September 
 9tli, and conversed about forming a partnership but came to no 
 agreement. Sliortly 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. 501, 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. Lockliart, 4 McLean, 
 350; Butler v. Henry, 48 Ark. 551; 
 Citizens' Bank v. Hine, 49 Conn 236; 
 Bryan v. Tooke, CO Ga. 437; Bracken 
 V. Ellsworth, 64 id. 213; Morris v. 
 Miirqueze, 74 id. 86; Watt v. Kirby, 
 15 111. 200; Wright v. Brosseau, 73 
 id. 381 ; Goodenow v. Jones, 75 id. 48 ; 
 Smith V. Hood, 4 111. App. 360; 
 Wheat V. Hamilton, 53 Ind. 256; 
 Tifield V. Adams, 3 Iowa, 487; Steru- 
 burg V. Callanan, 14 id. 251 ; Cad- 
 wallader v. Blair, 18 id. 420; Waller 
 V. Davis, 59 id. 103; Cross u. National 
 Bank, 17 Kan. 336; Gaus v. Hobbs, 
 18 id. 500; Duncan v, Lewis, 1 Duv. 
 (Ky.) 183; Meador v. Hughes, 14 
 Bush, 653; Mosseau v, Thebens, 19 
 La. Ann. 516; Beall v. Poole, 27 Md. 
 615; GudJ V. Belcher, 119 Mass, 257; 
 Lake v. Muuford, 4 Sm. & Mar. 
 312; Fagan v. Long, 30 Mo. 222; 
 Deere v. Plant, 43 id. 60; Wiigus v. 
 Lewis, 8 Mo. App. 336; Parnialee v. 
 Wiggenhorn, 6 Neb. 322; Howell v. 
 
 Sewing Machine Co. 12 id. 177; 
 Durand v. Curtis, 57 N. Y. 7 ; Sizer 
 V. Ray, 87 id. 220 ; Fuller v. Rowe, 
 57 id. 23; Pierce v. Alspaugh, 83 N. 
 Ca. 258; Brooke v. Evans, 5 Watts, 
 196; Babcock v. Stewart. 58 Pa. St. 
 179; Sham burg u Ruggles, S3 id. 148; 
 Hart V. Kelley, 83 id. 286 ; Morrison's 
 Appeal, 93 id. 326; Shafer's Appeal, 
 99 id. 246; Holmes v. Caldwell, 8 
 Rich. (S. Ca.) L. 247; Piano Co. v. 
 Bernard, 2 Lpa(Tenn.), 358: Bank v. 
 Gray, 12 id. 459; Adkins v. Arthur, 
 33 Tex. 431, 440; Hart v. Tomlinson, 
 2Vt. 101; Poindexter r. Waddy, 6 
 Munf. 418 (8 Am. Dec. 740); Peters v. 
 McWilliams. 78 Va. 567; McLinden 
 V. Wentworth, 51 Wis. 170, 181; 
 Hine v. Beddome, 8 Up. Can. C. P. 
 381; McKeaiid v. Mortimore, 11 Up. 
 Can. Q. B. 428. For Louisiana law 
 as to liability of widow who has ac- 
 cepted the succession of her husband 
 for prior debts of the firm, see Hen- 
 derson V. Wadsworth, 115 U. S. 264 
 
 523
 
 § 508. 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 nut 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 claim 
 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. fur 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 these 
 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 forminjij 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- 
 nership until actually formed is inchoate, and the ngency 
 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. 
 
 524
 
 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 dehvery 
 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, wdiere 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 contract with the new firm.* 
 
 And in such cases, if the change is in the retirement of a partner, 
 he is not exonerated by the fact of notice to the shipper that the 
 
 iDurand v. Curtis, 57 N. Y. 7; into partnership. 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, 22 Vt. 88 (52 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 r. Mears, 5 B. & 
 Salmon, 4 Wend. 327. C. 504 (as explained in Beale v. 
 
 2Goodenow u Jones, 75 111.48; Mouls, 10 Q. B. 976), where the 
 
 Duncan v. Lewis, 1 Duv. 183; Beale owner of certain coaches contracted 
 
 V. Mouls, 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 ILL 200; Johnson ing to various places. This contract 
 
 V. Barry, 95 id. 483. was held to bind incoming partners. 
 
 4 Dyke r. Brewer, 2 Car. & K. 828, Compare, also, Winston v. Taylor, 
 
 where bricks were to be supplied by 28 Mo. 82, noticed at the end of this 
 
 plaintiff to A. at a certain price, but section. s 
 
 of no definite quantity. A. took B. 
 
 525
 
 § 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 incoming 
 
 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 
 
 iDean v. McFaul, 23 Mo. 76; Wilson v. Bailey, 9 Dowl. P. C. 18 
 
 Holden V. McFaul, 21 id. 215; Hall Citizens' Bank u. 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 
 
 »Dixv. Otis, 5 Pick. 38 ; Piano Co. v. Brosseau, 73 111. 381; Waller r. 
 
 V. Bernard, 2 Lea, 358. Davis, 59 Iowa, 103 ; Guild v. Belcher, 
 
 ♦Sliirreff u. Wilks, 1 East, 48; £"03 119 Mass. 257; Fagan v. Long, 30 
 
 parte Goulding, 2 Gl. & J. 118; Wil- Mo. 222; Howell v. Sewing Machine 
 
 son V. Lewis, 2 M. & G. 197; s. c. as Co. 12 Nebr. 177. 
 
 526
 
 PAYMENT, NOVATION AND MERGER. g 510. 
 
 its credit on the books of H. & Co., and C, of both 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 incoming 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, 
 
 2Guild r. Belcher, 119 Mass. 257; 64 id. 117; Bate r. McDowell, 17 Jones 
 
 Wilson V. Lewis, 2 M. &G. 197; S. C. & Sp, 106; Abpt v. Miller, 5 Jones 
 
 as Wilson v. Bailey, 9 Dowl. P. C, 18. (N. Ca.), L. 32; Broaddus v. Evans, 63 
 
 'Burritt v. Dickson, 8 Cal. 113; N. Ca. 638; Morehead u. Wriston, 73 
 
 Markham v. Hazen, 48 Ga. 570; Wil- N. Ca. 398; Smead v. Lacey, 1 Disney, 
 
 son V. Dozier, 58 id. 602; Bracken v. 239; Torrens v. Campbell, 74 Pa. St 
 
 Ellsworth, 64 id, 243; Morris v. Mar- 470; Shamburgv. Ruggles, 83 id. 148; 
 
 queze, 74 id. 86 ; Warren v. Dickson, Hart v. Kelley, 83 id. 286 ; Kountz v. 
 
 30 111. 363; Goodenowu. Jones, 75 id. Holthouse, 85 id. 233; White v. Thiel- 
 
 48; Silverman v. Chase, 90 id. 37; ens, 106 id. 173; Earon v. Mackey, 
 
 Johnson r. Barry, 95 id. 483; Frazer 106 id. 452; Updike v. Doyle, 7 R. L 
 
 V. Howe, 106 id. 563 ; McCracken v. 446 ; Piano Co. v. Bernard, 2 Lea 
 
 Milhous, 7 111. App. 169; Lucas v. (Teun.), 358; Wallace v. Freeman, 25 
 
 Coulter, 104 Ind. 81; Sternburg v. Tex. Sup. 91; Allen v. Atchison, 26 
 
 Callanan, 14 Iowa, 251; Preusser v. Tex. 616, 628; Hobbs v. Wilson, 1 
 
 Henshaw, 49 id. 41 ; Poole v. Hin- W. Ya. 50 ; Jones v. Bartlett, 50 Wis. 
 
 trager, 60 id. 180 ; Cross v. National 589 ; Hine v. Beddome, 8 Up. Can. C. 
 
 Bank, 17 Kan. 336; Beall v. Poole, P. 381. In Smead v. Lacey, 1 Dis- 
 
 27 Md. 645 ; Shaw v. McGregory, 105 ney, 239, this assumption of old 
 
 Mass. 96; Botsford v. Kleiuhaus, 29 debts by the new firm was held in- 
 
 Mich. 333; Osborn v. Osborn, 86 ferable from the facts that the 
 
 Mich. 48; Coleman v. Pearce, 26 course of business was to pay old 
 
 Minn. 123; Mueller v. Wiebracht, 47 debts indiscriminately, without 
 
 Mo. 468; Baum v. Fryrear, 85 id. charging them up to the old firm, 
 
 151; Parmaleev. Wiggenhorn, 5Neb. and no account of stock was taken 
 
 322; Howell u. Sewing Machine Co. on the new partner coming in, or any 
 
 12 id. 177; Morrison v. Blodgett, 8 change made in the books or new 
 
 N. H. 238 (29 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 
 
 527
 
 § 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 liabilit}'^ of the former 
 partners is not released is within the statute of frauds as a 
 promise to pay the debt of another.^ There must b^ a prom- 
 ise to the creditor upon a new consideration or a release of 
 the prior 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 demauded his debt, 
 and the new partner, knowing the creditor did not know whether 
 the new firni 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 plaintiff 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 account 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. 2 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, -^0 Pa. St. 107. 
 novation. 3 Wallace v. Freeman,' 25 Tex. 
 1 Bracken v. Ellsworth, 64 Ga. 243; Supp. 91 ; Shoemaker v. King. 40 Pa. 
 Sternburg v. Callanan, 14 Iowa, 251. St. 107. See White v. Thielens, 106 
 But see Poole v. Hintrager, CO Iowa, Pa. St. 173. 
 
 180. But after payments by the new * McCracken v. Milhous, 7 111. App. 
 
 firm, credited by their agreement on 109; Lucas v. Coulter, 104 Ind, 81 ; 
 
 the old account, it is too late to raise Beall v. Poole, 27 Md. 645; Updike 
 
 tlie question of tlie statute of frauds, v- Doyle, 7 R. I. 44(5 ; Piano Co. v. 
 
 Mueller v. Wiebracht, 47 Mo. 468. Bernard, 2 Lea, 358, 360. 
 
 528
 
 PAYMENT, NOVATION AND MERGER. § 511. 
 
 sale for several months, and then 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.» 
 
 1 Ex parte Peele, 6 Ves. Jr. 603, 2 Frazer v. Howe, 106 111. 563. 
 
 004; Ex parte Jackson, 1 id. 131; » Preusserv. Henshaw, 49 Iowa, 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. 12 
 
 See Smead v. Lacey, 1 Disney, 239, Nebr. 177. 
 
 abstracted in § 510. Contra, that he 6 Hart v. Kelley, 83 Pa. St. 286. 
 
 should not be held liable on slight "^ Ex parte Parker, 2 M. D. & D. 
 
 circumstances. Bracken v. Ells- 511. 
 
 worth, 64 Ga. 243; Beall v. Poole, 27 8 Hine v. Beddorae, 8 Up. Can. C. 
 
 Md. 645. P. 381. 
 Vol. 1 — 34 529
 
 § 612. 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 boots of new firm. — 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, may 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. 
 
 > Ex parte Parker, 2 M. D. & D. Cross v. National Bank, 17 Kan. 336; 
 
 511; Beale v. Mouls, 10 Q. B. 97(5; Abpt u. Miller, 5 Jones (N. Ca.), L. 
 
 Morehead V. Wriston, 73 N. Ca. 5598; Zi; Updike v. Doyle, 7 R. I. 446; 
 
 Shamburgw. Ruggles, 83 Pa. St. 148. Piano Co. v. Bernard, 2 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, 86 Mici). 48; Cross < £"0; parfe Peele, 6 Ves. 602 ; Piano 
 
 V. National Bank, 17 Kan. 336. Co. v. Bernard, 2 Lea, 358. 
 
 2Parmalee v. Wiggenhorn, 5 Neb. & Rolfe v. Flower, L. R. 1 P. C. 40; 
 
 322. And see Goodenow v. Jones, Bate v. McDowell, 17 Jones & Sp. 
 
 75 III. 48. 106; Stnead v. Lacey, 1 Disney, 239; 
 
 * Ex parte Kedie, 2 Deac. &. C. 321 ; Sliamburg v. Ruggles, 83 Pa. St. 148; 
 
 ^icparfe Whitmore, 3 M. & A. 627; Earon v. Mackey, 106 Pa. St. 452; 
 
 3 Deac. 365; s. c. on appeal as Ex Updike v. Doyle, 7 R. I. 446. But 
 
 parte Jackson, 2 M. D. & D. 146; will not control other improbabili- 
 
 Rolfo V. Flower, L. R. 1 P. C. 27 ; ties, Ex parte Sandham, 4 Deac & 
 
 Ex parte Griffin, 3 Ont. App. 1 ; Ch. 812. 
 
 630
 
 PAYMENT, NOVATION AN£) MERGER. §614. 
 
 § 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 
 equally 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 thf* 
 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 b,eginning 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 under 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 induced to enter the contract by C.'s exhibiting to him 
 a list of the debts of Z. & C, from which one 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 the 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 discover}' 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.* 
 
 § 515. 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 the 
 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 
 necessarv in the above cases to render the new firm liable 
 
 « Torrens v. Campbell, 74 Pa. St. Barry, 95 id. 483; Rice u. Wolff, 65 
 470, 474. And see Morris v. Mar- Wis. 1. 
 
 queze, 74 Ga. 80. ^ Wilson v. Dozier, 58 Ga. 603; 
 
 2 Arnold v. Nichols, 64 N. Y. 117. Cross v. National Bank, 17 Kan. 336. 
 SMaikham v. Hazen, 48 Ga. 570; » See Shaw r. McGregory, 105 Mass. 
 Morris t'. Marqueze, 74 id. 86; Silver- 96. 
 
 man v. Chase, 90 111. 37; Johnson v. 6 Morrison v, Blodgett, 8 N. H. 238 j 
 
 29 Am. Dec. 653. 
 533
 
 PAYMENT, NOVATION AND MERGER. g 618. 
 
 to him on its agreement to pay the debts of the old. With- 
 out this there is no novation. 
 
 Sucli 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 
 they 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 with the 
 
 1 Ex parte Jackson, 2 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 Whitmore, 3 M. & A. 627 ; 3 took his place, the firm name re- 
 Deac. 365; or included the old bal- niaining 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 u. Fryrear, 85 Mo. 151. held that the liability of the old 
 SMcKeand v. Mortimore, 11 Up. firm was by estoppel to deny a con- 
 Can. Q. B. 4~'8. tinuance of the agency of the part- 
 * Ex parte Freeman, Buck, 471. ners to bind it, and that of the new 
 » £'a:;par^e Parker, 2 M. D. &D. 511. firm was on the facts, and there 
 6 Beall 17. Poole, 27 Md. 645. could not be a joint liability of old 
 f See Scarf v. Jardine, L. R. 7 App. and new partners, but the creditor 
 Gas. 345. This is not directly in must elect. 
 
 533
 
 g 619. 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 subsequent 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 
 Buch 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.* 
 
 § 511). And slight circumstances only are required to justify a 
 finding that a creditor of the former firm, who had knowkdge of 
 
 iDevaynes v. Noble, Sleech's Case, 6 Waldeck v. Brand e, 61 Wis. 579. 
 
 1 Mer. 539,569; id. Clayton's Case, Where partners claim in defense that 
 
 id. 572, 604; Botsford v. Kleinhaus, the plaintiff had agreed to transfer 
 
 29 Mich. 332. the amount due him to the account 
 
 2 Clayton's Case, 1 Mer. 579. of one partner as a debt due tlie lat- 
 
 3 Barker v. 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. Lyman, 18 Pick. 346. gon, 35. 
 »Skannel v. Taylor, 12 La. Ann. 773. 
 
 534
 
 PAYMENT, NOVATION AND MERGER. §610. 
 
 the dissolution and assumption of debts, has 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 
 P. 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, 
 19Blatchf.79;61 How. Pr. 107, hold- 16 N.J. L. 147. See Botsford v. 
 ing that proving the debt in bank- Kleinhaus, 29 Mich. 333. 
 
 ruptcy against the new firm, and an 3 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, 29 Mich. 14; VValstrom i'. 
 years to look to his estate, by which Hopkins, 103 Pa. St. 118. 
 the retiring partner had been de- 4 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- uers. dissolved in 1693, dividing the 
 ruptcy, were held sufficient. Shaw stock between them, and giving 
 V. McGregory, 105 Mass. 96, 102, hold- notice to creditoi's 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 renewed his 
 that slight evidence will justify the debt with E., at six percent, 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 fx'om liable, but only at five per cent. And 
 the new firm, and received pay- see Harris v. Farwell, 15 Beav. 31. 
 ments from them, and made no de- s Thompson v. Percival, 5 B. & 
 maud on the ex-partner, was held Ad. 925. 
 
 535
 
 § 520. CONDUCT OF THE BUSINESS. 
 
 promise, and if he had promised there was no consideration to 
 support the promise. 
 
 And the course of dealing may be 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 thouirht 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 McGregory, 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, 62. 3 Bank of Wilmington v. Almond. 
 
 ZBucklinr. Bucklin, 97 Mass. 256; 1 Whart. 1G9. 
 that proving the debt is sufficient, * Buxton v. Edwards, 134 Mass 
 Regesteru. Dodge, 19 Blatchf. 79; 6 567. 
 
 Fed. Rep. 6; 61 How. Pr. 107. sBaum v. Fryrear, 85 Mo. 151. 
 
 536
 
 PAYMENT, NOVATION AND MERGER. § 620. 
 
 In Hart v. Alexander, 2 M. & W. 481 (7 C. & P. 746), A., B., C. 
 and D. were bankers, as A. & Co. A. retired and E. took his place. 
 The p'aintiif, 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. C. 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 for the consolidated 
 amounts of the old and new debts, but none oi 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 dischai-ged. 
 
 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 N. 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 did not 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 Lodge v. Dicas are much 
 Ellice, 5 B. & C. 196; 7 D. & R. 690, shaken by Thompson v. Percival, 8 
 and Kirwan v. Kir%van, 2 C. & M. Nev. & M. 167; 5 B. & Ad. 925. 
 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 plaintiff, 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 plaintifi' 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 be 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- 
 laud, J., said that it was conceivable, also, that K. may have known 
 nothing about the account, and doubted whether plaintiff could 
 have sued the new firm.^ 
 
 In Lewis v. Westover, 29 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 Rolfe V. Flower, L. R. 1 P. C. 27. 2 See, 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. § 623. 
 
 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. Stewart, 63 Mo. 424, 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 received 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, C. & 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 bill 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 is released.^ 
 
 1 Thompson v. Percival, 5 B. & Ad. Farwell, 15 Beav. 31 ; Benson v. Had- 
 925; Evans V. Drummond, 4 Esp. 89; field, 4 Hare, 32; Harris v. Lindsay, 
 Reed v. White, 5 id. 122; Kirwan v. 4 Wash. C. C. 98 and 271 ; Re Clap, 2 
 Kirwan, 2 Cr. & M. 617; Hart v. Lowell, 226 ; Tillotson v. Tillotson, 34 
 Alexander, 2M. & AV. 484; Harris v. Conn. 335; West v. Chasten, 12 Fla. 
 
 539
 
 § 51' I. 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- 
 it}^ 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 should 
 pay the creditor is suflScient consideration for the creditor's releas.^ 
 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 an intention or agreement to release 
 the copartners, but collateral merely, and if taken in renew^al 
 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. Cair, 31 lad. 260; 431; Hoskissoa v. Eliot. 62 Pa. St. 
 Maeklin v. Crutcher, 6 Bash, 401; 393; Nichols v. Cheaiis, 4 Sneed, 229; 
 Smith r. Turner. 9 id. 417; Tiinibow 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 u. Hughes, 44 Wis. 332; Hoef- 
 19 La. Ann. 201; Meyer u. Atkins. 29 linger u Wells, 47 id. 028; Port Dar- 
 id. 5S(); Folk v. Wilson. 21 Md. 538; liugton Harbour Co. v. Squair, 18 
 Hotchin v. Secor, 8 Mich. 494; Up. Can. Q. B. 533. 
 Keerlt;. Bridgets, 10Sni.& Mar. 612; i Ludington v. Bell, 77 N. Y. 138 
 Moore V. Lackman. 52 Mo. 323; (33 Am. Rep. 601). See, also, Max- 
 Titus V. Todd, 25 N. J. Eq. 458; well u. Day, 45 lud. 509. 
 Waydell v. Luer, 3 Den. 410; Gan- 2 Backus v. Fobes, 20 N. Y. 204. 
 dolf V. Appleton, 40 N. Y. 533; Lud- SLoveridge v. Lamed, 7 Fed. Rep. 
 ington V. Bell, 77 N. Y. 138 (33 Am. 294; Tyner v. Stoops, 11 Ind. 22; 
 Rep, 601); Bank v. Green 40 OIi. St. Maxwell v. Day, 45 Ind. 509; Lingen- 
 
 640
 
 PAYMENT, NOVATION AND MERGER. 
 
 §625. 
 
 ditional security, as a mortgage upon his own individual 
 property.^ 
 
 The individual note of one or all the partners may 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 ostensible 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 from one 
 
 V. Pope (Iowa Dist. Ct. 1855), 4 Am. 
 Law Reg. (O. S.) 313; Folk v. Wil- 
 
 partner is an extinguisliment of the 
 debt, Loomis v. Ballard, 7 Up. Can. 
 
 son, 21 Md. 538; Hotchin v. Secor, 8 Q. B. 866. 
 
 Mich. 494; Keerl v. Bridgers, 10 Sm. 2 Thompson v. Percival. 5B. & Ad. 
 
 & Mar. (18 Miss.) 613; Rose v. Baker, 925; Hopkins v. Carr, 31 Ind. 260- 
 
 13 Barb. 230; Wilson v. Jennings, 4 Maxwell v. Day, 45 id. 509; Hotchin 
 
 Dev. L. 90; Horsey r. Heath, 5 Oh. v. Secor, 8 Mich. 494; Keerl u. Bridg- 
 
 353; McKee v. Hamilton, 33 Oh. St. 
 7; Tyson v. Pollock, 1 Pa. 375; Allen 
 V. Owens, 2 Spears (S. Ca.), 170; Nich- 
 ols V. Cheaii's, 4 Sneed, 229 ; Dillon v. 
 Kauffman, 58 Tex. 696; Hoeflinger v. 
 Wells, 47 Wis. G28 ; Booth v. Ridley, 
 8 Up. Can. C. P. 4U; Port Darlington 
 Harbour Co. v. Squair, 18 Up. Can. 
 
 ers, 10 Sm. & Mar. 612; Mason v. 
 Wickersham, 4 W. & S. 100; Tyson 
 V. Pollock, 1 Pa. 375; Stephens v. 
 Thompson, 28 Vt. 77 ; Dages v. Lee, 
 20 W. Va. 584; Port Darlington Har- 
 bour Co. V. Squair, 18 Up. Can. Q. B. 
 533. In Rose v. Baker, 13 Barb. 230, 
 A. & B., being partners in buying 
 
 Q. B. 533. Contra, Anderson v. Hen- wheat, C. let A. have $o00 wiiich was 
 
 shaw, 2 Da3% 272. In Maine, Massa- used in buying gi'ain for the firm, 
 
 chusetts, Vermont, and formerly in and was i-egarded 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 the balance. It was held tiiat 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, 2 A. K. Mar. 
 
 294; Maxwell v. Day, 45 Ind. 509; 277; Scott v. Colmesnil, 7 J. J. Mar. 
 
 Harrison v. Pope (Iowa Distr. Ct. 416; Baring r. Crafts, 9 Met. 380, 394; 
 
 1855), 4 Am. Law Reg. (O. S.)313; Watson r. Owens, 1 Rich. L. Ill; 
 
 Baxter v. Bell, 86 N. Y. 195; Pierce Nichols tj. Cheairs, 4 Sneed, 229; Vac- 
 
 V. Cameron, 7 Rich. L. 114; Dillon euro u. Toof, 9 Heisk. 194. 
 V. Kauffman, 58 T( x. 096. Contra, 
 
 541
 
 §526. CONDUCT OF THE BUSINESS. 
 
 acts which arc 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.'' 
 
 § 520. Note in firm name after dissolution. — 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 reneAv 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. 
 538. Whether a sealed note by one Dec. 759 ; Parliam 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. 237; 
 or contemporaneously incurred debt, Yarnell v. Anderson, 14 Mo. 619; 
 see § 420. Moore u. Lackman, 53 id. 333; Ver- 
 
 2 Chamberlain v. Madden, 7 Rich, non v. Manhattan Co. 23 Wend. 183; 
 (S. Ca.) L. 39.">; B.'ckford 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; 
 492; Ward v. Mutter, 2 Rob. (Va.) Parker v. Cousins. 2 Gratt. 373; 44 
 536. But a subsequent firm note re- Am. Dec. 388; Miller v. Miller, 8 W. 
 vives the original debt again. David- Va. 542. Co?ifr(f, that it merges the 
 son V. Kelly, 1 IMd. 493. debt. Fowler v. Richardson, 3 Sneed, 
 
 3 Spenceley v. Greenwood, 1 F. & 508. In an action upon such note re- 
 F. 297, 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. 222; Ray burn v. Day, 27 111. 46; and Burris v. Whitner, supra. 
 Turnbow v. Broach, 12 Bush, 455; 
 
 542
 
 PAYMENT, NOVATION AND MERGER. § 627. 
 
 in the firm, and ultimately had to pay it. He can recover of 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 note 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 bearing 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. 
 
 § 527. 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 ma}' 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 u. 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. 126; Ells- security than a simple contract debt 
 
 wanger v. Coleman, 7 Mo. App. 583 ; 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. Dec. 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, SO W. Va. 584. 
 
 r31). 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, who is 
 
 643
 
 § 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 coiitiuiiiii? partner who assumed debts. — 
 Where one of the partners retires and the other assumes the 
 debts and continues the husiness, 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; » Le Page v. McCrea, 1 Wend. 164 
 Nance v. Pope, id. 230. (19 Am. Dec. 469). 
 
 2 Smith V. Turner, 9 Bush, 417; ^This was followed in Rred v. 
 Bowyer v. Knapp, 15 W. Va. 277 ; White, 5 Esp. 122, and Springer v. 
 Macklin v. Crutciier, 6 Bush, 401. Shirley, 11 Me. 204. In Hoopes v. 
 
 aCrooker v. Crooker, 52 Me. 267; MeCan, 19 La. Ann. 201, the note 
 
 Bowyer v. Knapp, 15 W. Va. 277; was in full settlement. Townsenda 
 
 Arnold v. Camp, 12 Jolins. 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. (101 (rev. 11 J. & Sp. tinuing partners. Contra, Keating v. 
 557). Sherlock, 1 Cint. Superior Ct. Rep. 257. 
 
 644
 
 PAYMENT, NOVATION AND MERGER. § 529. 
 
 fiolved, B. continuing tlie business and assuming all the debts, and 
 having sufficient partnership assets left with hira 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, Denman, C. J., cites Evans v. Druminond 
 and Reed v. White, and express disapproval of David v. Ellice.' 
 
 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 docs not establish a novation." 
 
 § o'lS). Note of surviving 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.' 
 
 'In David u. Ellice, 5 B. & C. 196; Leach v. Cluircli, 15 Oh. St. 1G9; 
 
 7 D.& R. 690, affiimiug 1 C. & P. 308, Titus v. Todd, 20 N. J. Eq. 438; Boat- 
 
 A., B. & C, partners, were indebted men's Sav. Instit. v. Mead, 52 Mo. 
 
 to D. A. retired. B. & C. abSiimed 518, but iiere 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 tlie books of B. & C. to See Thompson v. Percival, 5 B. «fc 
 
 themselves. lie afterwards drew on Ad. 925. 
 
 the new firm and they accepted, paid 5 Hamersley v. Lambert, 2 Johns, 
 
 part, and became insolvent. It was Ch. 508; Fogarty v. Cullen, 49 N. Y. 
 
 held that A. was liable, and so al- Sups-rior Ct. 397. 
 
 though D. could have collected his 6 Fogarty v. Cullen, 49 N. Y. Su- 
 
 debt before. perior Ct. 1G9; Lrach v. Church, 15 
 
 2 Bedford v. Deakin, 2 B. & Aid. Oli. St. 1G9; Bank v. Green, 40 Oh. 
 210; Boatmen's Sav. Instit. v. Mead, St. 431. Contra, that a note of tbe 
 53 Mo. 543. new firm is prima facie a payment. 
 
 3 Skannel v. Taylor, 12 La. Ann. Lewis v. Davidson, 39 Tex. GGO. 
 773. 1 Mason v. Tiffany, 45 111. 392 ; Ber- 
 
 4 Re Clap, 2 Low. 226, although the nard v. Torrance, 5 Gill & J. 383 • 
 old note was surrendered ; Thompson Buxton v. Edwards, 184 Mass. 567; 
 V. Briggs, 8 Foster (28 N. H.), 40 ; First Nal'l Bk. v. Morgan, 73 N. Y. 
 Mebane v. Spencer, 6 Ired. L. 423 ; 593 (aff. G Hun, 346). 
 
 Vol. 1 — 85 545
 
 § olio. 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 tlie 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 liis 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 redeliverj'^ 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. 
 
 In Mitchell v. Dobson, 7 Ired. Eq. (N. Ca.) 3i, A. & B., partners, 
 gave a partnership note to their creditor C, and then dissolved, B. 
 assuming all the debts. B. & C. 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 action 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 r. Salisbury, 15 Pick. 534. 
 
 546
 
 PAYMENT, NOVATION AND MERGER. . § 531. 
 
 Where D., b3ing indebtel to 0. and others, conveyed all his 
 business to 0., who then conveyed it to F.,iu trust to pay D.'s debts, 
 and hold the balance for D. 0. then went into partnership with 
 F. in the businass for some years. Losses having occurred, 0. was 
 hehl estoppsd 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.' 
 
 § o.'Jl. Payment by one extinguishes 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, bat the liability is extinguished, and the payment 
 is a mei'e 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 
 
 IWilkins r. Fitzhugh, 48 Mich. 78. took to keep the judgment alive 
 ZBaillett V. Waring, 4 Ala. 688, against the bail of the other partner, 
 where the fidminiblrator of a de- Holding also that after such pay- 
 ceased partner paid a judgment i"t*nt the bail cannot arrest the other 
 against liimself and the survivor, partner, for the debt is paid. Dana 
 (Coji^m, Sells r.Hubbell, 2 Johns. Ch. v. Conant, 30 Vt. 246, where one 
 394); Hoganu. Reynolds, 21 Ala. f)6 (56 of an indorsing lirm took up the 
 Am. Dec. 230), 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 v. McCrea, 1 where the partner who paid a debt 
 Wend. 164(19 Am. Dec. 409), 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 keep the other alive. Booth v. Buck, 21 W. Va. 396, where the 
 V. Farmers' & Mech. Bk. 74 N. Y. 228 assignee of one partner for benefit 
 (aflf. 11 Hun, -iSS), a judgment on a of creditors paid a firm note to pre- 
 note Kigned by four partners, and vent its being sued in order that he 
 indorsed by the filth; the latter paid might sell property at his leisure; 
 it; he cannot hold it over tiie others, ho does not become assignee of the 
 Hinton v. OJenheimer, 4 Jones, Eq. note. 
 
 408, where the paying partner under- spulton v. Williams, 11 Cush. 108. 
 
 547
 
 § 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 administrator 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.' 
 
 But 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 lud. 344; signee could. He was not an active 
 
 Booth V. Farmers' & Mech. Bank, 74 partner. Cliappell v. Allen, 38 Mo. 
 
 N. Y, 228 (aff'g 11 Hun, 258), where 213, where a partner who iiud taken 
 
 a judgment was allowed to stand as up partnership notes with liis own 
 
 security for any balance that might money was allowed to assign them 
 
 be found due on an accounting. to pay his private debt. 
 
 niclntire v. Miller, 13 M. & W. 3 In Sells v. Hubbell, 2 Johns. Ch. 
 
 725, where a member of a joint stock 394; Dahlgren v. Duncan, 7 Sm. & 
 
 company, making such payment, Mar, 280; but contra, Bartlett v. 
 
 had the debt transferred to a trustee Waring, 4 Ala. 688, supra. 
 
 for himself. Kipp v. McChesncy, 06 ^Laylin v. Knox, 41 Mich, 40. 
 
 Ill, 400, where a partner in a sort of * Brown v. Black, 96 Pa. St. 482 ; 
 
 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- ^ Warren v. Hayzlett, 45 Iowa, 235. 
 
 548
 
 PAYMENT, NOVATION AND MERGER. § 632. 
 
 to other 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 recover.' 
 
 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, 
 ^respective 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' claim 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 V. Thompson, 9 Met. 339. Frow, Jacobs & Co.'s Appeal, 73 Pa. 
 
 aRotlgers v. Mdw, 15 M. & W.444; St. 459; Scott's Appeal, 86 id. 173. 
 S. C. 4 Dow. & L. 06; or sue them in spiow, Jacobs & Co.'s Appeal, 
 
 assumpsit, Shamburg v. Abbott, 113 siqjra; Moody v. King, 2 B. & C. 558. 
 Pa. St. 0; Hupp v. Hupp, 6 Gratt. «See g§ 554, 634-641, and West v. 
 
 810. Chasten, 12 Fla. 315; and see Kin- 
 
 sSuyd.im v. Cannon, 1 Houst. ney r. McCullough, 1 Sandf. Ch. 370; 
 
 (Del. )'131, of a judgment; Chandler queried but not decided in Croone 
 
 V. Higgiiis. 109 III. C02; Layliu v. v. Bivens, 3 Head, 339; and so 
 
 Knox. 41 Mich. 40; Frow, Jacobs & though the others have not assumed 
 
 Co.'s Ai)peal, 73 Pa. St. 459; Brown the debts, Morss V. Gleasou, 04 N. 
 
 V. Blick, 96 id. 482; Redfield, C. J., y. 204 (aff. 3 Hun, 31 ; 4 Tliomp. & 
 
 In ^tna Ins. Co. v. Wires, 28 Vt. 93.' C. 274); Ketcimm v. Durkee, Hotf. 
 
 And see Scott's Appeal, 88 Pa. St. Ch. 538; and if they misapply the 
 
 173. assets ai'e individually bound to re- 
 
 <Conwellu. McCowan, 81 111. 285; imburse him for payments, Peyton 
 
 Johnson v. Young, 20 W. Va. 614; v. Lewis, 13 B. Mon. 356. 
 
 549
 
 g 533. CONDUCT OF THE BUSINESS. 
 
 insolvent, the payee of a firm note may avail himself of the bond 
 as in other ciuses of securities held by a surety.' 
 
 Whether, if the continuing partner, who 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 
 creat s 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 the}' 
 could join in an action against the actual partners.' 
 
 § 533. As to creditors; English cases. — In 183G the House 
 of Lords, in Oakeley v. Pasheller, 4 Clark & Fin. 207; s. C. 
 10 Bligh, N. R. 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 
 therefor© 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 Rodger? v. Maw, 15 M. & W. 444; s. c. 4 Dow. & L. GO, the 
 exchequer in 1846 applied the doctrine as between the partners, so 
 
 iBui-nside v. Fetzner, 63 Mo. 107; McLean, 11 Mil. 92. For oilier lul- 
 
 Wilson V. Stihvell, 14 Oh. St. 4G4; ings that the retired iiartncr is inter 
 
 and see ij (/o6. se a surety, see Morss v. Gleason, 64 
 
 2So ht-Id in Fisher v. Tiflt. 127 N. Y. 204 (S. C. below, 2 llun. 31; 
 
 Mass. 313. Contra, Fisher v. Tifft, 4 Tliomp. & C. 274); Bays v. Conner, 
 
 12 R. I. 56; s. C. with note, 18 Am. lOo Ind. 415. 
 
 Law Reg. (N. S.) 9, and Berry v. 3 in Abbot v. Johnson, 32 N. H. 9. 
 
 550
 
 PAYMENT, NOVATION AND MERGER. § 533. 
 
 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 withiu the scope of tliO 
 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, 10 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. Redman, 1 Q. B. D. 536, Cockburn-, 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 t'.Deakin, 2 B. Aid. 210; s. c. 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 ta 
 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, T Dana, 170, it was held that when the 
 creditor became security for the continuing to the retiring part- 
 
 >That neglect to pursue a surviv- Hun, 103); Palmer v. Purely, 83 id. 
 
 ing partner is no discharge of the 144; Morrison v. Perry, 11 Hun. 3*; 
 
 estate of the deceased partner, see Doild t>. Dreyfus, 17 Hun, 600; 57 How. 
 
 Surviving Partner. Pr- 319 (latter report is best); Math- 
 
 2Stone V. Chamberlin, 20 Ga. 2^)0; ews v. Colburu, 1 Strob. (S. Ca.) L. 
 
 Hoopes V. McCan, 19 La. Ann. 201; 258; Johnson v. Young, 20 W. Va. 
 
 Barber 17. Gillson, 18 Nev. 89; Bell r. 614; Gates u. Huglies, 44 Wis. 332; 
 
 Hall, 5 N. J. Eq. 477; Wilde v. Jen- Birkett v. McGuire,31 Up. Can Com. 
 
 kins. 4 Paige, 481 ; Tliurber v. Corbin, PI. 430. And see Smith v. Shelden, .35 
 
 51 Barb. 215; s. C. as Tliurber u. Jen- Mich. 42, and cases cited in g 533. 
 
 kins, 36 How. Pr. 66; Maier u. Cana- In Bays v. Conner, 105 Ind. 415, the 
 
 van. 8 Daly, 272; Savage r. Putnam, creditor had apparently agreed to 
 
 82 N. Y. 501 ; Miilerd v. Thorn, 56 id. the substitution of debtors. 
 40-2; Colgrove v. Tollman, 67 id. 95 3 Hill v. Trainer, 49 Wis 537; Ex 
 
 (23 Am. Rep. 90); (afT. 2 Lans. 97; 5 par/e Jacobs, 10 Ch. App. 211. 
 
 552
 
 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 
 arrangement 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 uote.^ 
 
 Nor can he notify the creditor to sue pursuant to the statute, for 
 the statute only applies to those who were sureties from the bo- 
 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 liena 
 and application of payments. 
 
 In Faulkner v. Hill, lOi 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 proportional part of the value 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 be^'^ond the 
 
 1 Mason v. Tiffany, 45 111. 393; Will- Barb. 461, and Ward v. Woodburn, 
 
 iams V. Boyd, 75 Ind. 286; Aiken v. 27 id. o46, which of course nre not 
 
 Thompson, 43 Iowa, 506; Smith v. law in bo far as inconsistent wiili tlie 
 
 Shelden, 35 Mich. 42; 24 Am. Rep. holdings of the court of appeals given 
 
 529; Hayes v. Knox, 41 id. 529; Raw- in a preceding section. See also. Nor- 
 
 8on V. Taylor, 30 Oh. St. 389; 27 Am. ton t\ Richards, 13 Gray, 15, as liin- 
 
 Rep. 464 ; Whittier v. Gould, 8 Watts, ited by Fisher v. Tiff C, 127 JIass. 313. 
 485. See, also, Umbarger V. Plume, 26 2Fenslerv. 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. Jiulgnieiit against one partner. — The doctrine of 
 tlie 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 partners. 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 
 Cranch, 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.' 
 
 » Roberts v. Strang, 38 Ala. 5G6. 
 
 2 i^ 420. 
 
 3 Brown v. Wooton, Cro. Jac. 73; 
 Kend;i!l v. Hamilton, 4 App. Cas. 
 604 ; S. C. below, 3 C. P. D. 403 ; Ex 
 parte Higsins, 3 DeG. & J. 33; Cam- 
 befort V. (Jliapnian, 19 Q. B. D. 239; 
 Musou V. Eldicd, G Wall. 2il ; 7 Am. 
 Law Reg. (N. S.) 402; Wood worth v. 
 Spnfford, 2 McLean, 1G8; Sedam v. 
 Willi.iins, 4 id. 51; Re Herrick, 13 
 Bnnkr. Rig. 312; Filley v. Piielps, 18 
 Conn. 291, oO."); Suydam v. Cannon, 1 
 Houst. 431 ; Nicklatis v. Roach, 3Ind. 
 78; North v. Mudge, 13 Iowa, 596; 
 Wiinn r. MeNulty, 7 111. 35o; 43 Am. 
 Dec. 58; Thompson v. Kmraert. 15 id. 
 415; Cnisliy v. Jeroloman, 37 Ind. 
 264; Bninett v. Juday. 38 id. 8G; Hol- 
 man v. Langtree, 40 id. 349; Lingen- 
 felser v. Simon, 49 id. 82; Scott v. 
 Colniesnil, 7 J. J. Mar. 4lG; Moale v. 
 IIol litis. 11 Gill & J. 11; Loney 
 V. Bailey, 43 Md. 10; Ward v. John- 
 
 son, 13 Mass. 148; Tinkum v. O'Neale, 
 5 Nev. 93; Stevenson v. Mann, 13 id. 
 2G8, 274; Nat'l Bank v. Spnigue, 20 
 N. J. Eq. 13, 31 (reversed on other 
 points, in 21 id. 530) ; Robertson v. 
 Smith, 18 Johns. 459; Penny v. Mar- 
 tin, 4 Johns. Ch. 566; Peters v. San- 
 ford, 1 Den. 224 ; Averill v. Loucks, 6 
 Barb. 19; Olmstead v. Webster, 8 N. 
 Y. 413; Suydam v. Barber, 18 id. 468 
 (rev. 6 Duer, S4); Sloo v. Lea, 18 Oh. 
 279 ; Anderson v. Levan, I Watts & S. 
 334; Smith v. Black, 9 Serg. &R. 142; 
 1 1 Am. Dec. 686 ; Nichols v. Anguera, 
 2 Miles (Pa.), 290; Gaut v. Reed, 24 
 Tex. 46, 55; How v. Kane, 2 Pin. 
 (Wis.) 531; s. c. 2Chaad. 222; 54 Am. 
 Dec. 1")2. Thci'e are a few author- 
 ities to the contrary. Sheehy v. Man- 
 deville, G Cranch, 254 (now overruled, 
 as already staled); Watson v. Owens, 
 1 Rich. (S. Ca.) L. Ill, and Union 
 Bank v. Hodges, 11 id. 480, in both 
 of which cases tlie non-joined pait. 
 4
 
 PAYMENT, NOVATION AND MERGER. § 537. 
 
 Although the partners who were not made parties were 
 secret partners, yet all claim against them individually is 
 merged.^ 
 
 § 530. 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 
 iafanc}'', 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. Webster, 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 aa 
 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.), 290; How v. 
 
 And, vice versa, it has been held that Kane, 2 Pin. 531 ; s. C. 2 Chand. 223 
 
 a joint judgment against all the part- (54 Am. Dec. 152); Mason v. Eldred, 
 
 ners bars action ou a note given by 6 Wall. 231, 238; 7 Am. Law Reg. 
 
 one or more of them for 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 A pp. Gas. 3g 149. 
 
 504; Lingenfelser v. Simon. 41) Ind. ^Kmg v. Hoare, 13 M. & W. 495; 
 
 82; Scott V. Colmepnil, 7 J. J. M.ir. Traftou v. United States, 3 Story, C. 
 
 416; Moale v. HoUins, 11 Gill & J. C. 646; Sherman u. Christy, 17Iowa, 
 
 11; Penny v. Martin, 4 Jolms. Ch. 322; Pierce v. Kearney, 5 Hill, 82; 
 
 566; Robertson v. Smith, IS Johns. Oilman u. Foote, 22 Iowa, 500, 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. Black, 9 Serg. & R. ment on his several lability as 
 
 142 (11 Am. Dec. 686); Nichols v. maker was held not to merge the 
 
 555
 
 g 538. CONDUCT OF THE BUSINESS. 
 
 lu 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 firm. 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. wliom 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. Y. 468, also Sg. 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. 362; Bennett v. Cadwell, supra. 
 
 70 Pa. St. 253; Lowry v. Hardwicke, <OfTutt v. Scott, 47 Ala. 104, 129; 
 
 4 Humph. (Tenn.) 188, and Nichols Brozee v. Poyntz, 3 B. Mon. 178; 
 
 V. Ciieairs, 4 Sneed, 229; and in Ma- Hawks v. Ilinchcliff, 17 Barb. 492; 
 
 Bon V. Eldred, supra, it is said that Bigelow v. Lehr, 4 Watts, 378; Davis 
 
 a statute of Micliigan providing that v. Anable, 2 Hill, 339; First Nat'l 
 
 Buch judgment is. in favor of the B'k v. Morgan, 73 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. lll;Haslett v. Wother- 
 
 agaiust 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 of 
 Columbia, Iowa, Kentucky, 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 be pursued unless 
 there are no available firm assets nor living solvent partner 
 prevents a merger, for the debt is no longer joint. '^ 
 
 V. Ardagb, 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 Tlnirber v. against the surviving partner was 
 
 Corbin, 51 Barb. 215, but here the not thereby merged. See First Nat'l 
 
 note itself would have discharged B'k v. Morgan, 73 N. Y. 598 (aff'g 6 
 
 the retired partner. Hun, 346). That a judgment against 
 
 iHaggerty u. Juday, 58 Ind. 154. the survi%'or bars proceedings at law 
 
 See similar authorities under the against the estate of decedent, leav- 
 
 Bubject of release of one partner. ing a remedy in equity only. Phil- 
 
 2 Hence in In re Hodgson, 31 Ch. son v. Bampfield, 1 Brev. (S. Ca.) 
 
 D. 177, it was held to make no differ- 203. 
 
 557
 
 CHAPTER Xn. 
 
 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- 
 chai'ging 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 liabihty 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 priority 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 on 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 
 
 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. 345, 360. joint ownership, for then the posses- 
 
 ^ Ex parte Oooper, 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 
 
 « Jones V. Neale, 2 Patt. & H. (Va.) West Law Month. 574. 
 
 339. 8 Allison v. Davidson, 2 Dev. (N. 
 
 5 Hunt V. Morris, 44 Miss. 314; Ca.) Eq. 79. And see Solomon v. 
 
 Koningsburg v. Launitz, 1 E. D. Solomon, 2 Ga. 18. 
 Smith, 215. Contra if the usage of 
 
 659
 
 § 54SI. CONDUCT OF THE BUSINESS. 
 
 firm, in payment of a debt, and the grantee conveys part tq 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*2. 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 take 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 payment 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 ma}' 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. Ramsey, G III. 373. If 3 National Bank v. Mapcs, 85 111. 07. 
 
 the title to land is in one partner, * Mafllyn v. Hathaway, 106 Mass. 
 
 and on his death the other partner 414; Sharpe v. Johnston, 59 Mo. 557; 
 
 presents a claim against the estate Miuchison v. Warren, 50 Tex. 27. 
 
 for his advances in its purchase, he And see Beck with v. Manton, 13 R. 
 
 may witlidraw 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 
 
 partnersliip property, and an assent his estimated share of tbe 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. 
 
 ^Kreisu. Gorton, 23 Oh. St. 468. The receipt has become joint prop- 
 
 560
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. §643. 
 
 § 543. Glioses in action. — Glioses 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 
 not'e 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 makmg 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 and 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 Hay w. (N. 
 
 veyance can be required independent Ca.) 289. 
 
 of the state of accounts. * 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 
 Rowaud V. Eraser, 1 Rich. (S. Ca.) L. . Ga. 451 ; Shafer's Appeal, 106 Pa. St. 
 325; Jackman v. Partridge, 21 Vt. 49. 
 
 558; Bf^lknap v. Cram, 11 Oh. 411 ; 5 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.) CLamkin v. Phillips, 9 Porter 
 435; Stevenson v. Woodhull, 19 Fed. (Ala.), 98; Waterman v. Hunt, 2 R. 
 Rep. 575; Baring v. Lyman, 1 Story, L 298, 303; Belknap v. Cram, 11 Oh. 
 C. C. 396; Smith v. Lusher, 5 Cow. 411; Glynn v. Phetteplace, 26 Mich. 
 688; Manegold v. Dulau, 30 Wis. 383. 
 
 541 ; and see Kirby v. Coggswell, 1 " Anderson v. Tarpley, 6 Sm. & 
 Cai. 505. Mar. 507. 
 
 Vol. I — 36 561
 
 § 541. 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 depositary who had allowed another partner 
 to use part of the fund was held liable to Myers at law therefor.' 
 
 § 544. Taking funds witliout 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 title to 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 aw*ay, 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 y. Winn, 16 111. 135. Foster, 3 Ired. Eq. 213; Eason v. 
 
 3 West V. Skip, 1 Ves. Sr. 239, 242; Cherry, 6 Jones, Eq. 261 ; Chipley v. 
 iJcc parfe Ruffin, 6 Ves. 119; Piiilips Keaton, 65 N. Ca. 534; Thomas v. 
 V. Crammond, 2 Wash. C. C. 441.; Lines. 83 N. Ca. 191 ; Moore u Knott, 
 Crosswellv. Lehman, 54 Ala. 363(25 12 Oreg. 260; Horback v. Huey, 4 
 Am. Dec. 684); King u Hamilton, 16 Watts, 455; McNaughton's Appeal, 
 111. 190; Barkley V. Tapp, 87 lud. 25; 101 Pa. St. 550; Hunt v. Benson, 2 
 Cooper V. Frederick, 4 G. Gr. (Iowa), Humph. (Tenn.) 459; Piano Co. v. 
 403; Say lor v. Mockbie, 9 Iowa, 209; Bernard, 2 Lea, 358, 3G4; Wood v. 
 Wilson V. Davis, 1 Montana, 183; Shepherd, 2 Patt. & H. (Va.) 442; 
 Croughton v. Forrest, 17 Mo. 131 ; Bird v. Fake, 1 Pin. (Wis.) 290. 
 Uhler V. Semple, 20 N. J. Eq. 288; < Brown 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. 20- Bufordr. Neely, 2 
 
 562
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 545. 
 
 loan for a firm, on the security of liis individual property, receives 
 partnersliip 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 b}'' the firiTi'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 pi'operty of the recipients.* 
 
 § 545. 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 in 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 
 
 1 Owens V. Miller, 29 Md. 144. Price, 20 id. 117; Bergeron v. Rich- 
 
 2 See §284. ardott, 55 id. 129; Prentiss v. Bren- 
 3 Rhoton's Succession, 34 La. Ann. nan, 1 Grant's Ch. (Up. Can.) 484. 
 
 893. As to accountability for profits made 
 < Wells V. Ellis (Cal.), 9 Pac. Rep. by speculating or trading with funds 
 80. of the partnership, see §§ 790-801. lu 
 8 Campbell v. Mullett, 2 Swanst. 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, 26 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- 
 his domicile. fendant, on an allegation of an ex- 
 «Kelley v. Greenleaff 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. 339; Ren- sustain a recovery on the theory of 
 frew V. Pearce, 68 111. 125 ; Crough- 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 ; MiUer v. 
 
 663
 
 § 547. CONDUCT OF THE BUSINESS. 
 
 the appropriation; thus more overdrafts give no right to pro- 
 ceed against the separate estate,^ 
 
 Thus where a partner drew out money and expended it on his 
 vrife's land, there was held to he no lien for it unless the taking was 
 surreptitious or in bad fiiith." 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 
 largelj^ overdrew their accounts and built 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, 
 
 2 Sharp V. Hibbins, 42 N. J. Eq. 462; Crozieru Shauts, 43 Vt. 478. 
 543. SMaybin v. Moorman, 21 S. Ca. 
 
 'United States v. Duncan, 4 846. 
 McLean, 607, but it was the creditors « Cabaniss v. Clark, 31 Miss. 423. 
 and not the partners who complained "> McCormick v, McCormick, 7 Neb. 
 here. 440, 
 
 564
 
 CONVERSION OF JOINT INTO SEPARATE 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 buyg 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 F., 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 Shurtleff u. 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 u. ject to changes of ownership; but 
 Desmond, 63 Cal. 242; Re Tomes, 19 this is different from change of pos- 
 Bankr. Reg. 36 ; Moline Wagon Co. session. See § 105. 
 
 V. Rummell, 2 McCrary, 307; 13 Fed. 3 Ritchie v. Kinney, 46 Mo. 298. 
 
 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. 425, 
 
 565
 
 § 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.' 
 
 Whore 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 take 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 tliird 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 which this is based in some of 
 the cases below is not the true one. The parties are not 
 tenants in coinmon, 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. 19i, H., T. & A. were partners 
 in a portable saw-mill, A. beiug 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 Raiguel's Appeal, 80 Pa. St. 234, 2iT-8, one partner assigned 
 all his interest in a dissolved partnership to a creditor as security. 
 The master held this to be valid against the execution sale of his 
 interest by another creditor, and the buyer, ou execution, took 
 nothing. 
 
 In Wallace's Appeal, lOi 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; ^Pieru Duff, 63 Pa. St. 59. 
 Crilej V. Vasel, 53 Mo. 445. 
 
 666
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 548. 
 
 against A. aud A.'s interesf, 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 oui; of the proceeds. On 
 bill by W. for an accounting, it was lield 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, aud 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- i)i esse, and the partnership formed being 
 in fact the one intended, the pledge is good against general credit- 
 ors of A. aud against all but buyers without notice, aud 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 sufiicient writing to 
 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 unliquidated claim or a virtual sale 
 of suits, which is void for maintenance, and also because an assign- 
 ment by way of pledge is inoperative without delivery, and is 
 therefore a mere agreement to assign ; 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. 
 
 iThis case had a variety of 107 Pa. St. 590; and lastly as Wal- 
 branches, viz.: in the Orphans' Ct. lace's Appeal, lOi id. 
 as Hulse's Estate, 11 Weekly Notes ^ Armstrong u. Fahnestock, 19 Md. 
 (Pa.), 499; then as Collins' Appeal, 58. 
 
 567
 
 § 550. CONDUCT OF THE BUSINESS 
 
 § 549. An offer by one partner to sell out to the other at a cer- 
 tain sum, the oifer 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 business.^ 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.* 
 
 RETIRING partner's EQUITABLE LIEN. 
 
 § 550. Retiring 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 
 
 2Collender v. Phelan, 79 N. Y. plaintiff all their rights secured by 
 
 3G6. the indenture, this conveys not only 
 
 3 Stewart V. Stebbins, 30 Miss. 66. the original contributions for the 
 
 < 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- 
 
 conlribute and agreed to continue ard, 16 Pick. 563. 
 
 5G8
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY, § 550. 
 
 Hence, where a partner retires from the firm, seUing 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 cases, 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 liis 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 
 mortgage in the hands of an assignee for value was held good 
 against the attachments of joint creditors in Scudder v. Delashmut, 
 7 lo^^a, 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 
 
 iLiugen v. Simpson, 1 Sim. & Stu. here because not elsewhere specific- 
 
 600; Ex jparte Ruffin, 6 Ves. 119; ally noticed under this head. 
 
 Jones V. Fletcher, 42 Ark. 423 ; Mar- 2 See g 534. 
 
 lin V. Kirksey, 23 Ga. 164; Wilson v. SBarkley v. Tapp, 87 Ind. 25. 
 
 Soper, 13 B. Mon. 411 (56 Am. Dec. ^Reese v. Kinkead, 18 Nev. 126. 
 
 573). And see § 189, and cases in sgeaman v. Hufifaker, 21 Kan, 254; 
 
 the succeeding notes of this topic Low i". Allen, 41 Me. 248; Savage u. 
 
 passim, the foregoing being cited Carter, 9 Dana, 408. 
 
 569
 
 g 551. 
 
 CONDUCT OF THE BUSINESS. 
 
 and a mortgage upon the 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 app]3nng it to the notes. 
 
 § 551. Coutiuuing partners assuming detots. — 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} 
 
 1 Ex parte Ruffin, 6 Ves. 119, 126 ; 
 Ex x>arte^N\\\mms, 11 id. 3; Crane 
 V. IMorrisou, 17 Bankr. Reg. 893; 
 Reese v. Bradford, 13 Ala. 837, 847; 
 Griffin v. Ormaii, 9 Fla. 22; West v. 
 Chasten, 12 Fla. 315; Ladd v. Gris- 
 wold, 9 111. 25 (46 Am. Dec. 443j; 
 Hapgood V. Cornwell, 48 id. 64; 
 Goembelu Arnett, 100 id. 34; Will- 
 iamson V. Adams, 16 111. App. 564; 
 Trentman v. Swai'tzell, 85 Ind. 443; 
 Maquoketa, City of, v. Willey, 35 
 Iowa, 323 ; Griffith v. Buck, 13 Md. 
 102; Armstrong v. Fahnestock, 19 
 id. 58; Robb v. Mudge, 14 Gray, 534; 
 Howe V. Lawrence, 9 Cush. 553, 558 
 (57 Am. Dec. 68); Andrews v. Maun, 
 31 Miss. 322; Fulton v. Hughes, 63 
 id. 61; Vosper v. Kramer, 31 N. J. 
 Eq. 420 ; Dayton v. Wilkes, 5 Bosw. 
 655; Cory v. Long, 2 Sweeny (N. Y.), 
 491; Weber v. Defor, 8 How. Pr. 
 502; Parks v. Comstock, 59 Barb. 16; 
 Dimou V. Hazard, 32 N. Y. 65; 
 Emerson v. Parsons, 46 id. 500 (aff'g 
 2 Sweeny, 447) ; Stanton v. Westover, 
 N. Y. (1886)4 N. E. Rep. 529; Latham 
 V. Skinner, Phil. (N. Ca.) Eq. 292 ; 
 
 5 
 
 Rankin v. Jones, 2 Jones (N. Ca.), 
 Eq. 109; Allen v. Grissom, 90 N. Ca. 
 90; Miller v. Estill, 5 Oh. St. 508, 
 517-18; Baker's Appeal, 21 Pa. St. 
 76; Clarke's Appeal, 107 id. 436; 
 Croone v. Bivens, 2 Head, 339; Smith 
 V. Edwards, 7 Humph. 106; Hollis v. 
 Staley, 3 Baxter, 167; White v. 
 Parish, 20 Tex. 688 ; and see Wagner 
 V. Wagner, 50 Cal. 76. Contra, De- 
 veau V. Fowler, 2 Paige, 400; Olson 
 V. Morrison, 29 Mich. 395. It wdll 
 be remembei'ed that if a continuing 
 partner agrees to pay the debts and 
 not merely to indemnify, the retiring 
 partner has a right of action against 
 him upon non-payment, without 
 himself having first paid anything 
 (g 036). This, however, is an action 
 at law for money damages and not 
 an equitable right to have the spe- 
 cific assets applied to partnership 
 debts to the exclusion of separate 
 debts, which is what we are here 
 considering, and which carries with 
 it a right to injunction and receiver, 
 and which a court will enforce in 
 favor of the firm creditors in case 
 70
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY, g 551. 
 
 Thus, in Griffitli v. Buck, 13 Md. 102, one partner sold out to the 
 other, who assumed the debts and agreed that the hitter should be 
 released therefrom. The continuing partner afterwards sold out 
 the whole concern to G., 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 the 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 Avith 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 partnei-. It was also 
 Deveau v. Fowler and Olson v. JMor- 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 inirsued whom he 
 tiring partner was allowed an in- had undertaken to relieve. See, also, 
 junction and receiver on charges of g 929. 
 
 insolvency and using the assets to i 1 Sim. &Stu. 600;S. p. Whitworth 
 pay private debts, and in the latter v. Benbow, 56 Ind. 194; and see Rob- 
 the ?firm creditors and the retiring ertson ?;. Baker, 11 Fla. 193. 
 partner jointly obtained injunction 27 De G. M. &G. 353. 
 and other relief in equity against 3 107 Mass. 269. 
 
 571
 
 § 552. CONDUCT OF THE BUSINESS. 
 
 to his father, instead of applying the assets allotted to him to its 
 payment, devoted them to the dischai-ge of individual dehts 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 h}'' 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 v. Long, 2 Sweeny, 
 Croonev. Bivens, 2 Head, 339; Grif- 491; Robb v. Stevens, 1 Clarke, Ch. 
 fith V. Buck, 13 Md. 102, IIG; Rogers 195; Rogers v. Nichols, 20 Tex. 719; 
 U.Nichols, 20 Tex. 719, 724. As to Shackelford u. Shackelford, 32 Gratt. 
 the rights of a retiring partner in 481; and Roop v. Herron, 15 Neb. 
 those states where he is regarded as 73, might have been put on this 
 a surety to compel continuing part- ground. In this case, after a partner 
 ners to pay the debts, see § 532. had retired, merely assigning liis in- 
 
 2 Payne v. Hornby, 25 Beav. 2S0 ; terest to his copartner, who agreed 
 Kilseyu Hobby, IG Pet. 2G9; Mat- to pay the debts, the firm being 
 ter of Shepard, 3 Ben. 347 ; Sedam u. insolvent, the counsel of the 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. Mon. 158; Bowman i>. the separate debt of the remaining 
 Spalding (Ky.), 2 S. W. Rep. 911; partner. 
 
 Harmon v. Clark, 13 Gray, 114; Top- 3 Hapgood v. Cornwell, 48 111. 64. 
 liff u. Vail, 1 Harr. Ch. (Mich.) 310; ^Langmead's Trusts, 7 DeG. M. & 
 Wildes V. Chapman, 4 Edw. Ch. G. 353. 
 
 572
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 553. 
 
 and therefore not to be afifected by execution for a private 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 of his estate' consisting of the 
 former partnership assets will be applied to the firm's debts/ 
 
 In Menagh v. Whitwell,^ it was said by Allen", 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 
 tbe benefit of the retiring partner and creates a clear equity in his 
 favor. The right 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 5 52 N. Y. 146,167 (11 Am. Rep. 
 Ch. (Up. Can.) 355. 683). 
 
 2 Northrup V. McGill, 27 Mich. 234. ^This idea was also suggested 
 
 3 Kerr v. Bradford, 26 Up. Can. C. in Shackelford v. Shackelford, 32 
 P. 318. Gratt. 48], 503. 
 
 < Shackelford v. Shackelford, 32 "13 Gray, 114. 
 Gratt. 481. 
 
 573
 
 § 5c4. CONDUCT OF THE BUSINESS. 
 
 of the partner shall he worked out and the property applied to 
 the paj'raent of the joint dehts and not to separate dehts. 
 
 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 dehts. L. suhsequently 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 V. Fox,* K., of B. & K., sold out 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 
 
 111 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 Clarke'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 g 540; Ex parte Wood, 10 Ch. 
 
 the continuing partners and the D. 554 ; Fitzgerald v. Cross, 20 N. 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 CG9. 
 
 plaintiffs sold their shares, but were 'Per Knight Bruce, L. J., in 
 
 afterwards compelled to pay debts, Langmead's Trusts, 7 De G. M. & G. 
 
 and applied to equity for reimburse- 353. 
 
 ment; that equity had no jurisdic- 6 Rogers u. Nichols, 20 Tex. 719. 
 
 tion to wind up and compel a reim- '' Buck Stove Co. v. Johnson, 7 Lea 
 
 bursement ; that the plaintiffs were (Tenn.), 282. 
 
 creditors and not partners, the same 8 45 yt. 348. 
 
 as any partner who has sold and had 
 
 574
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 555. 
 
 the property in good faith, but F. & M. appropriated the avails to 
 their own use without paying K., who brought trover. It was hehl 
 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 paj'ing 
 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 
 therenpou have the assets applied to the partnership debts prior to 
 the individual debts of the copartner; Ligon, 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 copartner 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. 
 
 § 655. The foregoing principles afford an easy solution to 
 the question of the distribution of the assets of successive 
 partnerships in the same business. These changes of part- 
 nership may occur in various ways, as by a partner selling 
 his interest to a third person who is taken into the firm in 
 his place, or by a partner retiring or dying, the business 
 
 1 23 Ala. 524 5 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. 88. 111. App. 564. And see § 105. 
 < Shackelford v. Shackelford, 33 
 
 Gratt. 481. 
 
 575
 
 S 550. CONDUCT 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, which 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. ^ 
 
 § 55(). Illustrations; retirement of old witlioiit 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 
 tlie 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, hovvever, 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 C. and of B. as individuals.' 
 
 1 Camp V. Mayer, 47 Ga. 414 ; Gor- firm has no creditors, Dennis v. Ray, 
 don V. Cannon, 18 Gratt, 887 ; Hobbs 9 Ga. 449. 
 
 V. Wilson, 1 W. Va. 50; Tracy v. < Baker's Appeal, 21 Pa. Sfc. 76. 
 Walker, 1 Flip. 41; 3 West Law » Scull v. Alter, 16 N. J. L. 147. 
 Month. 574, and the illustx-ations in This case also held that plaintiff can- 
 next section. not come upon the separate estates 
 
 2 § 550. until he has exhausted the partuer- 
 
 3 That the old creditors can compel sliip assets of C. & Co. or shown that 
 the new firm to account if the new firm also to be insolvent. This is on 
 
 576
 
 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 okl 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 ^ari passu^ the representa- 
 tives of the 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 ^Xvcxre 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 okl. — 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 doctrine that a person having a 5 in New Hampshire, where the 
 
 lieu upon two funds must exhaust creditors' priority is in some degree 
 
 that first on which others have no inherent in themselves and not 
 
 lieu, and is not universally accepted worlied out through a partner's 
 
 as the rule. equity, their paramount right is not 
 
 1 Lester u. Pollock, 3 Robt. (N. Y.) intercepted by any management of 
 
 691 ; s. C. as Lester v. Abbott, 28 How. the surviving partners among them- 
 
 Pr. 483; Smith v. Howard, 20 How. selves, and any property of the orig- 
 
 Pr. 121. inal firm which can be traced through 
 
 2Deveau v. Fowler, 2 Paige, 400. successive fii-ms 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 see ^o; par ^e Chuck, 8 Bing. 469, 402. This rule would, perhaps, also 
 
 cited in g 558. obtain in Vermont and Missouri. 
 
 * 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 G. & X. claimed a lien and 
 charge upon the property of G. & 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 partners.' 
 
 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 over 
 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. The new firm after- 
 wards mortgaged the property to subsequent partnership creditors. 
 
 * Richardson V. Tobey, 3 Allen, 81. ley v. Winkelmeyer, 56 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- 
 4Sawy. 138; ITBankr. Reg. 393; Ut- pendent on the partner's equity, 
 ley V. Smith, 24 Conn. 290 ; Menagh Spurr v. Russell, 59 N. H. 338. 
 V. Whitwell, 53 N. Y. 146; McCauly 3 Richardson v. Tobey, 3 Allen, 81, 
 V. McFarlane, 2 Desaus. (S. Ca.) 239; 83. 
 Dayton v. Wilkes, 5 Bosw. 655 ; Ack- 
 
 578
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 5:)8. 
 
 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 old 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 
 firm.^ 
 
 So, where C. & D., a firm, incurred a debt, then M. came 
 into the firm, the business being continued in the old name, 
 then the creditor attached; 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 
 
 iBeecher t;. Stevens, 43 Conn. 587. New Hampshire, where the cred- 
 
 2 Coffin V. McCullough, 30 Ala. 107. iter's priority is independent of the 
 
 And see Meador v. Hughes, 14 Bush, partner's equitable lien, the creditors 
 
 653. of the old firm will share equally 
 
 s Meyberg v. Steagall, 51 Tex. 351. with those of the new, for all assets 
 
 See, also, Childs v. Walker, 2 Allen, and liabilities continue after the ad- 
 
 259, 262; Locke v. Hall, 9 Me. 133; 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. 338. 
 
 terest in the prior goods so far as ^ Ex parte Chnck, 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, 239. 
 
 679
 
 § 559. CONDUCT OF THE BUSINESS. 
 
 assented to the novation.' Hence, wliere 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 inter se to pay the old 
 debts is not available to the creditor until he knows of and assents 
 to it."* 
 
 FRAUDULENT CONVEYANCES. 
 
 § 559. Sale between 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 joint 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 Ruffin, 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 v. Hall, 9 Me. 133. 
 Locke V. Hall, 9 Me. 133 ; and see § 503. 
 
 580
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 560. 
 
 death or banlcruptcy, 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 dissohition 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 
 goae, the assignment not being made 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.' 
 
 § 5 GO. 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 Tliis case is approved and ex- Pfirrman v. Koch, 1 Cint. Superior 
 plained further in E'xparfe Williams Ct. Rep. 460; Gallagher's Appeal 
 llVes. 3. Also Huiskamp V. Moline (Pa.), 7 Atl. R. 237; Waterman v. 
 Wagon Co. 121 U. S. 310 (reversing Hunt, 2 R. I. 298, 303; Shackelford 
 S. c. as Moline Wagon Co. v. Rum- v. Shackelford, 32 Gratt. 481. 
 mell, 2 McCrary, 307; 12 Fed. Rep. ^Ex parte Peake, 1 Mad. 346; 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. & C. 
 V. Huber, 19 Bankr. Reg. 414; Aus- 257; 5 Dow. & Ry. 138; Case v. Beau- 
 tin V. Seligman, 21 Blatchf. 508; 18 regard, 99 U. S. 119; 1 W^oods, C. C. 
 Fed. Rep. 519; Lamkin v. Phillips, 9 127; Fitzpatrick v. Flannagan, 106 
 Porter (Ala.), 98; Mayer v. Clark, 40 U. S. 648, 655-6; Huiskamp u. Moline 
 Ala. 259; Robertson v. Baker, 11 Fla. Wagon Co. 121 U. S. 310 (reversing 
 192; 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; 12 Fed. Rep. 
 Am. Dec. 302); Wilson v. Soper, 13 658; 14 id. 155); Re Bjornstad, 18 
 B. Mon. 411 (56 Am. Dec. 573); Coak- Bankr. Reg. 282; Be Downing, 1 
 ley V. Weil, 47 Md. 277; Parish v. Dill. 33; J2e 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, 286; Tracy v. Walker, 1 Flip. 41 ; S. C. 3 
 
 581
 
 §560. 
 
 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. 596 ; Dimon v. Hazard, 33 N. Y. 65, 
 Huber, 19 Bankr. Reg. 414; Reese u here the buyer assigned for benefit 
 Bradford, 13 Ala. 846; Lamkin v. of his creditors; Stanton v. West- 
 Phillips, 9 Porter (Ala.), 98; McGown over (N. Y. 1886), 4 N. E. Rep. 529, 
 V. Sprague, 23 Ala. 534 ; Mayer v. here the buyer was largely a cred- 
 Clark, 40 Ala. 259, held to be sepa- 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 joint creditor; Rankin v. Jones, 2 
 mortgagee for a past debt of the Jones (N, Ca.), Eq. 169, here the 
 transferee partner; Jones v. Fletcher, buyer assigned for benefit of credit- 
 42 Ark. 422; Allen v. Center Valley ors; Potts v. Blackwell, 4 Jones, Eq. 
 Co. 21 Conn. 130 (54 Am. Dec. 333), 58; McGregor u Ellis, 2 Disney, 286; 
 where the firm sold the property and Pfirrman v. Koch, 1 Cincinnati Su- 
 divided the proceeds while insolvent; perior Ct. Rep. 460; Wilcox v. Kel- 
 Upson v. Arnold, 19 Ga. 190 (63 Am. logg, 11 Oh. 394; Belknap v. Cram, 
 Dec. 302), where -the buyer subse- n id. 411; Miller v. Estill, 5 Oh. St. 
 queutly became insolvent; Hapgood 508,516-17; Clark v. McClelland, 3 
 V. Cornwell, 48 111. 64; Goembel v. Grant's Cas. (Pa.) 31, the buyer be- 
 
 Arnett, 100 111. 34; Williams v. Ad- 
 ams, 16 111. App. 564; Dunham v. 
 Hanna, 18 Ind. 270; Trentman v. 
 Swartzell, 85 lud. 443; George v. 
 Wamsley, 64 Iowa, 175; Wilsson v. 
 Soper, 13 B. Mon. 411 (56 Am. Dec. 
 
 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. 420. See, 
 
 573) ; Armstrong v. Fahnestock, 19 also, the extreme cases under § 568. 
 
 Md. 58, here all were insolvent and 
 the buyer assigned all to an individ- 
 ual creditor; Coakley v. Weil, 47 
 Md. 277 ; Guild v. Leonard, 18 Pick. 
 611; Richardson v. Tobey, 3 Allen, 
 
 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 
 
 81, here the firm was insolvent; creditors, since they have no lien, 
 
 Kimball v. Thompson, 13 Met. 283; although the firm and both partners 
 
 Howe V. Lawrence, 9 Cush. 553 (57 are insolvent, must be exercised bona 
 
 Am. Dec. 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. 483 ; Par- l Burton v. Baum, 33 Kan. 641 
 
 ish V. Lewis, 1 Freem. (Miss.) Ch. Worman v. Giddey, 30 Mich. 151 
 
 299; 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; Griffie 
 
 Robb V. Stevens, Clarke, Ch. (N. Y.) v. Maxey, 58 Tex. 210. Contra, 
 
 191, here the buyer assigned for that if the conversion from joint to 
 
 creditors ; Sage v. Chollar, 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 810,000 
 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. Rep. 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 first. 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 Y., 
 partners, were indebted to the plaintiff. J. retired, V. agreeing to 
 pay the debts. Y. then sold one-half the stock to C, and Y. and 
 C. became partners. C. had to borrow to pay for his half, and Y. 
 with one M. became his sureties, and Y. gave M. a mortgage on 
 the partnership property to secure him as surety and the mortgage 
 was foreclosed. Plaintiffs brought an action, claiming that as J. & 
 Y.'s assets or Y.'s assets went to pay 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 jjer se fraudulent as to the 
 joint creditors,* 
 
 or for the purpose of enabling the S81 ; Chalfant v. Grant, 3 id. 118; 
 
 partners to claim homesteads, it is Mortley v. Flanagan, 3S Oh. St. 401. 
 fraudulent as against the joint cred- i Persse & Brooks Paper Works v. 
 
 itors. Re Sauthoflf, 8 Biss. 35; 16 Willett, 1 Robt. 131 ; 19 Abb. Pr. 416; 
 
 Bankr. Reg. 181 ; 5 Am. Law Rec. Beitman v. McKenzie, 11 Ohio 
 
 173; Commercial & Sav. Bk. v. Cor- Weekly Law Bulletin, 272; and see 
 
 bett, 5 Sawy. 543; Re 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; Gill v. Lattimore, 9 Lea, Sprague, 121 U. S. 215, 228. 
 
 583
 
 g 5G2. CONDUCT OF THE BUSINESS. 
 
 § 561. Dividing 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 formers 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 Lingen y. 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, V. Rummell, 14 Fed. Rep, 155; 12 (they divided assets, each assuming 
 
 id. 658; 2 McCrary, 307 (reversed in certain debts and one assigning his 
 
 part as Huiskamp v. Moline Wagon share for the benefit of his creditors) ; 
 
 Co. 121 U. S. 310); Robertson v. Wiesenf eld t;. Stevens, 15 S. Ca. 554; 
 
 Baker, 11 Fla. 192; Marlin v. Kirk- Burtus v. Tisdall, 4 Barb. 571; and' 
 
 sey, 23 Ga. 164; Poole v. Seney, 66 see §282. Contra, Ransom v. Van 
 
 Iowa, 502, 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 perse; Jones v. Lusk, 2 Met, 2 Atkins v. Saxton, 77 N. Y. 195; 
 
 (Ky.) 356; Mechanics' Bank u Hil- Weaver v. Ashcroft, 50 Tex. 427; 
 
 dreth, 9 Cush. 356; Giddings v. Pal- Darland v. Rosencrans, 56 Iowa, 122; 
 
 mer, 107 Mass. 269; Crosby v. Nichols, Griffin v. Cranston, 10 Bosw. 1 ; 1 id. 
 
 8 Bosw. 450; Sigler v. Knox Co. 281. 
 Bank, 8 Oh, St. 511; Whitmore v. 
 
 584
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. S 56S 
 
 OUtt. 
 
 In Ex parte Mayou, 4 DeG. J. & S. mi\ 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 indemnif}^ 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 Avas 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 manner 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 fide assigned to one or more 
 partners, say that a fraudulent assignment by an insolvent firm to de- 
 fraud creditors 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, 24 Up. Can. C. P. 308, Caldwell v. Bloomington Mfg. Co. 17 
 
 following above case; Ex parte id. 489; Mooi*ehead y. Adams (Neb.), 
 
 Walker, 4 DeG. F. & J. 509 ; Auder- 26 N. W. Rep. 243 ; Tenney v. John- 
 
 Bon V. Maltby, 2 Ves. Jr. 244; Bulliter son, 48 N. H. 144; Caldwell v. Scott, 
 
 V. Young. 6 El. & B. 40; Ex parte 54 id. 414; Burtus v. Tisdall, 4 Barb. 
 
 Shouse, Crabbe, 482; Collins v. Hood, 571 ; Ransom v. Van Devonter, 41 id. 
 
 4 McLean, 186 ; Wilkinson v. Yale^ 6 307 ; Heye v. BoUes, 2 Daly, 231 ; 83 
 
 id. 16; In re Waite, 1 Low. 207; 1 How. Pr. 266; Menagh v. Whitwell, 
 
 Bankr. Reg. 373; In re Cook, 3 Biss. 52 N. Y. 146, 163; 11 Am. Rep. 683 
 
 122; Re Long, 7 Ben. 141 ; 9 Bankr. (but in Stanton v. Westover, 4 N. E. 
 
 Reg. 227; Re Tomes, 19 Bankr. Reg. Rep. 529, the transfer was sustained, 
 
 36 ; Johnston v. Straus, 26 Fed. Rep. both parties believing themselves 
 
 57; Conroy v. Woods, 13 Cal. 626; 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, 29 id. 311; Phillips the property could have been levied 
 
 V. Ames, 5 Allen, 183; Phelps v. on and he was ready to pay debts); 
 
 McNeeiy, 66 Mo. 554; 27 Am. Rep. Weaver v. Ashcroft, 50Tex. 427; Da- 
 
 378; Roop v. Herron, 15 Neb. 73, and vid v. Birchard, 53 Wis. 492, 497. 
 comments on this case in 17 id. 489 ; 
 
 585
 
 § 563. CONDUCT OF THE BUSINESS. 
 
 hare been and are being misapplied and appropriated to the private 
 purposes of individual partners, by wliicli the creditors are hindered 
 and defrauded, that a dissolution by the retirement of two 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 bonafide^ and a receiver will be 
 appointed if necessary'.' 
 
 In Phelps V. McNeely, m Mo. 554 (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. 1-14,^ 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 
 ofif 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 Avas 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, but turned over $500 worth of assets in payment of 
 a debt of $250 to his separate creditor, all the parties knowing the 
 
 1 S. p. Johnston v. Straus, 26 Fed. take all the assets and pay all the 
 
 Rep. 57 : but Coakley v. Weil, 47 Md. debts, and thereupon his separate 
 
 277, recognizes an assignment for the creditors levied attachraeiits, but the 
 
 equal benefit of joint and separate partnership creditors were neld to 
 
 creditors. have superior rights. * 
 
 2 Tenney v. Johnson was where Sg. 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 Nob. 489. 
 
 586
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 563. 
 
 firm to be insolvent, was held void as against tlie 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 death of T. White, Sr., 
 all the property and business was to belong j^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 executor, con- 
 tinued the business and bought more assets, it was held that the 
 original assets which remained in specie continued joint property; 
 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 
 one 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 ot 
 contract between the outgoing and continuing partners are not 
 given. 
 
 In Bank v. Smith, 26 W. Va. 541, the partners of an insolvent 
 firm tried to convey away partnership real estate to avoid the judg- 
 ment of debts, and the conveyances were set aside and the laud 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, Avho can 
 thus come upon the separate estate pari passu with the separate 
 creditors.' 
 
 1 See In re Simpson, 9 Ch. App. 471 ; Crampton v. Jerowski, 2 Fed. 
 573; Ex parte Dear, 1 Ch. D. 519; Rep. 489; Re Johnson, 3 Lowell, 
 Ex parte Manchester Bank, 13 id. 129. 
 
 917; Ex parte Butcher, 13 id. 46"i. 3i?eJolmson, 3 Low. 129; i2e Long, 
 
 2 Wilson V. Greenwood, 1 Swanst. 7 Ben. 141 ; 9 Bankr. Reg. 227. 
 
 587
 
 § 664. 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 tlie joint creditors will nou have suf- 
 ficient, whether this is by gratuitous permission of his 
 copartners or under a right to 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, for 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 partnershi]) assets. 
 
 In In re Kemptuer, L. R. 8 Eq. 286, K., in the firm o£ K. & Co. 
 of Yolcoliama, 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 bo 
 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.' 
 
 ^ Re Sauthoff, 16 Bankr. Reg. 181; was indebted for buildings upon it. 
 8 Biss. 35; 5 Am. Law Rec. 173, vised partnership funds to pay tliese 
 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 Mackey (D. C), 43, 61, here a partner 
 subject to partnership debts. Re 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 contri- 
 divided the proceeds when insolvent, bution to separate creditors," and 
 investing tliem 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 SEPAPYTE PROPERTY. § 5(J5. 
 
 Drawing reasonabl}' 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 debt 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 singl4 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. 2 
 
 and each used his part to pay 2Huiskamp 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, 
 tliey divided up the supposed profits, 120; 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, 2 Met. (Ky.) 856; Schmid- 
 a creditor of the firm ; the court held lapp v. Currie, 55 Miss. 597 (30 Am. 
 that tlieir want of knowledge of Dec. 530) ; Whitney v. Dean, 5 N. H. 
 their insolvency was immaterial. 249 ; Nafl Bank t;. 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 u. 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. 42 Vt. 739. See the criticisms upon 
 1 McKinney v. Rosenband, 23 Fed. Jones v. Lusk, Schmidlapp v. Cur- 
 Rep. 785. rie, and Whitney v. Dean, and other 
 
 5S»
 
 § 665. 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 bankruptc}^ 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 in payment 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 bona fide 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- 
 itors. 
 
 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. 372, 
 
 assignment by partners of choses in 2 And so in Camp v. Page, 43 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 Rich. L. 13. 
 
 590
 
 CONVERSION OF JOINT INTO SEPARxVTE PROPERTY. § oGG. 
 
 In Saunders v. Reilly, 105 N. Y, 12, a judgment against all tlie 
 partners on a joint debt owed by tliem as individuals, not a part- 
 nership debt, was 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 creditors of the other partner whose 
 individual interest in the firm is thus given away.^ 
 
 1 See, also, Marks v. Hill, 15 Gratt. 437; Rhodes v. Williams, 12 Nev. 20; 
 400, cited in § 567. French v. Lovejoy, 12 N. H. 458; 
 
 2 Anderson v. Maltby, 2 Ves. Jr. Person v. Monroe, 21 id. 463; Elliot 
 244; Ex parte Snowball, L. R. 7 Ch. v. Stevens, 38 id. 311 ; Kidder ?7. Page, 
 App. 534; Brecher v. Fox, I Fed. 48 id. 380; Farwell v. Metcalf, 68 id. 
 Rep. 273; Re Lane, 2 Low. 333; 10 276; Blackwellu. Rankin, 7 N. J. Eq. 
 Bankr. Reg. 135; Re Sauthoff, 16 152, 165; National Bank v. Sprague, 
 Bankr. Reg. 316; Goodbarv. Gary, 4 21 id. 530, 544; Clements v. Jessup, 
 Woods, 603; 16 Fed. Rep. 316; Ed- 36 id. 569, 573; Kirby v. Schoon- 
 wards v. Entwisle, 2 Mackey (D, maker, 3 Barb. Ch. 46, 51; Geortner 
 Col.), 43, 61 ; Keith v. Fink, 47 111. v. Cana joharie, 2 Barb. 625 ; Burtus 
 272; Patterson r. Seaton, 70 Iowa, r. Tisdall, 4 id. 571 ; Dart v. Farmers' . 
 689;Saoly u. Albrecht, 17 La. Ann. 75; Bank, 27 id. 337; Cox v. Piatt, 33 id. 
 Carter v. Galloway, 36 id. 473 ; Flack 126 ; 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; 27 How. Pr. 359 ; Lester v. Pol- 
 Hart, 55 Mich. 64; Cron v. Cron, 56 lock, 8 Robt. 691; 28 How. Pr. 488; 
 id. 8 ; Kitchen v. Reinsky, 42 Mo. O'Neil v, Salmon, 25 How. Pr. 246 ; 
 
 591
 
 § 50 7. 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 only against existing creditors, and is valid against sub- 
 sequent liabilities of the firm.* 
 
 In George v. Wamsle}^, 6i Iowa, 175, the firm 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 creditor. 
 
 § 567. Assumption of deht on moral consideration. — If, 
 
 however, the debt, 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, 2 Daly, 45 ; Heye v. cure it, will not be effectual against 
 Bolles, 2 id. 231; 33 How. Pr. 266; existing partnership creditors. Kid- 
 Wilson V. Robertson, 21 N. Y. 587; der r. Pago, 48 N. H. 380. 
 Hurlbert y. Dean, 2 Keyes, 97; 2 i Jackson u. Cornell, 1 Sandf. Ch. 
 Abb. App. 428 ; Menagh V. Whitwell, 348; Schiele v. Healy, 61 How. Pr. 
 52 N. Y. 140 (11 Am. Rep. 683); 73; Vernon v. Upson, 60 Wis. 418; 
 Walker v. Marine Nat'l B'k of Erie, Willis v. Bremner, id. 622. 
 08 Pa. St. 574; Henderson v. Haddon, -'pjace v. Sedgwick, 95 U. S. 3; 
 12 Rich. Eq. 393; Snyder v. Luns- Rhodes v. Williams, 12 Nev. 20; Re 
 ford, 9 W. Va. 223, 228; Keith v. Sauthoff, 16 Bankr. Reg. 181; Ed- 
 Armstrong, 65 Wis. 225. And an ini- wards v. Entwisle, 2 Mackey (D. C), 
 proper increasing of claims is as ille- 43, 61; Bishop v. Hubbird, 23 Cal, 
 gal as an improper diminution of 514; Stegall z'. Coney, 49 Mo. 761. 
 assets: hence, signing the firm name 3 Assignment of Stewart, 62 Iowa, 
 as surety for the existing debt of one 614. 
 
 partner, or giving a mortgage to se- * Farwell v. Metcalf, 63 N. H. 276. 
 
 592
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 5G8. 
 
 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 Black well 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 firm, and this was sus- 
 one partner made a purchase or loan lained. Walker v. Marine Nat'l B'k of 
 for the firm 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 firmj. 
 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 u. Hill, ISGratt. 400, where all' 
 principle was said to apply wliere 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 Fer- Y. 13. 18. 
 
 son V. Monroe, 21 id. 462, and in 2 Coffin v. McCullough, 30 Ala. 107 ; 
 
 McNaughton's Appeal, 101 Pa. St. McCauly v. McFarlane, 2 Desaus. (S. 
 
 550. And so in Rose v. Keystone Ca.) 239; Menagh r. Whitwell, 52 
 
 Shoe Co. (Supr. Ct. Pa. 1886) 18 N. Y. 146; Crane v. Morrison, 4 
 
 Weekly Notes, 565, a firm confessed Sawy. 138; 17 Bank. Reg. 393. See 
 
 judgment in favor of the wife of a Lester u Pollock, 3Robt. (N. Y.)691; 
 
 partner, from whom her husband and §§ 555-558. 
 borrowed money, which had gone to 
 
 Vol. 1 — 38 698 
 
 ^
 
 § 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 tlie trans- 
 action. 
 
 In Sigler v. Knox County Bank, 8 Oh. St. 511, the facts, some- 
 what simplified, are as follows: Wm. H. and S. A. Siglcr 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 tc 
 the Wayne County Bank for $1,000, for both of which debts Jacob 
 
 594
 
 CONVERSION OF JOINT INTO SEPARATE PROPERTY. § 608. 
 
 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 
 court 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 of 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 insufficient 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 inability 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 (30 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
 
 § iG!). 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 Schfefifer 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 effect will not be given to it beyond the extent of 
 his interest. And see Fisher v. Syfers, 109 Ind. 514. 
 
 § 561). Conveyances 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 Soc. v. Gibb, 21 Cal. 595; Utley 
 Meyer, 30 Fed. Rep. 659; Savings & v. Smith, 24 Conn. 290; Evans v. 
 
 596
 
 CONVERSION OF JOINT INIO SEPARATE PROPERTY. § 5G9. 
 
 In Utley v. Smith, 24 Conn. 290, C, the owner of a business, 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 C. 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, 35 Ind. 83; Hardy u. Over- 2 Bank of Mobile v. Dunn, 67 Ala. 
 
 man, 36 Ind. 549; Talbot v. Pierce, 881; Murrill y. Neill, 8 How. (U. S.) 
 
 14 B. Mon. 158; Newman v. Bagley, 414; Eyre v. Beebe, 28 How. Pr. 383; 
 
 16 Pick. 570; Kirby u. Schoonmaker, Friend v. Michaelis, 15 Abb. N. Cas. 
 
 8 Barb. Ch. 46, 50; Crook, r. Rinds- 354; Crook v. Rindskopf, 105 N. Y. 
 kopf, 105 N. Y. 476 (rev. s. C. 34 Hun, 476 ; Andress v. Miller, 15 Pa. St. 
 457); Auburn Exchange Bank v. 316; McCullough v. Somnierville, 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. 252 ; Gallagher's Appeal Jackson v. Cornell, 1 Sandf. Ch. 348 
 (Pa.), 7 Atl. Rep. 237 ; Whitmore v. O'Neil v. Salmon, 25 How. Pr. 246 
 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- 
 Morris, 4 Gratt. 293; Stewart v. eral. In Collomb v. Caldwell, 16 N. 
 Slater, 6 Duer, 83, but this case Y. 484, it 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 
 held not to be void. void. And see Stewart v. Slater, 6 
 
 1 Evans v. Winston, 74 Ala. 349; Duer, 83; Smith v. Howard, 20 How. 
 Lord V. Devendorf, 54 Wis. 491 ; Hoi- Pr. 121 ; Averill v. Loucks, 6 Barb, 
 ton V. Holton, 40 N. H. 77, and 470 ; Van Rossum v. Walker, 1 1 id. 
 earlier N. H. cases therein cited. 237. Contra, that the separate cred- 
 
 597
 
 §509. 
 
 CONDUCT OF THE BUSLNESS. 
 
 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.' 
 
 itors have not such an exchisive 
 claim upon the separate property 
 that an assignment of it for the bene- 
 fit of partnership creditors is void, 
 Newman v. Bagley, IG Pick. 570; 
 Gadsden v. Carson, 9 Rich. Eq. 253. 
 In Morris v. Morris, 4 Graft. 293, it 
 was held that if a partner by will 
 subjects his real estate to the pay- 
 ment of his debts the joint creditors 
 could share with the separate cred- 
 itors. See, also. Straus v. Kerngood, 
 21 Graft. 584, 590. In Goddard v. 
 Hapgood, 25 Vt. 351 (60 Am. Dec. 
 272), it was said that an assignment 
 of separate property to pay individ- 
 ual debts and return the residuum 
 to the assignor, if it means the ex- 
 
 clusion of partnership debts, is 
 void. 
 
 1 Randolph v. Daly, 16 N. J. Eq. 
 313 (liolding, also, that the other part- 
 ner is not a necessary party); Forbes 
 r. Davison, 11 Vt. 660; Barhydt v. 
 Perry, 57 Iowa, 416 (holding, also, 
 that subsequent creditors whoso 
 property had gone to pay off prior 
 creditors would be subrogated to 
 tlieir right to attack the conveyance). 
 Hardy v. Mitchell, 67 Ind. 485, holds 
 that the partnei'ship creditor must 
 aver that there are no separate debts, 
 or that there wouhl be a surplus after 
 payment of them. Also, that both 
 sets of creditors could join in set- 
 ting aside the conveyance. 
 
 598 
 
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