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Full text of "A treatise on the law of partnership"

JU 



TREATISE 



ON THE 



LAW or PARTNERSHIP. 



BY 



THEOPHILUS PARSONS, LL.D. 

Ill 

DANE PROFESSOU OF LAW IN HAKVAKD UNIVERSITY, AT CAMBRIDGE. 



FOURTH EDITION, REVISED AND ENLARGED, 
BY 

JOSEPH HENRY BEALE, Jr. 

ASSISTANT PROFESSOR OF LAW IN HARVARD UNIVERSITY. 



BOSTON: 
LITTLE, BROWN, AND COMPANY. 

1893. 



T 



Entered according to Act of Congress, in the year 1866, by 

Theophilus Parsons, 

in the Clerk's OflSce of the District Court of the District of Massachusetts. 



Entered according to Act of Congress, in the year 1870, by 

Theophilus Parsons, 

in the Clerk's Office of the District Court of the District of Massachusetts. 



Entered according to Act of Congress, in the year 1878, by 

Theophilus Parsons, 
in the Office of the Librarian of Congress, at Washington. 



Entered according to Act of Congress, in the year 1893, by 

David L. Webster, Francis A. Dewson, and Charles M. Reed, Trustees, 

in the Office of the Librarian of Congress, at Washington. 



TTniversitt Press: 
John Wilson and Son, Cambridge, U. S. A. 



3^ 

a 

u. 



PREFACE 

TO THE LAW OF PARTXERSHIP. 



I HAVE followed the same plan in this as in my former 
works, judging from the favor they meet with and all 
I can learn about them that it is satisfactory to the 
profession. 

It may be briefly described thus : In the text, I state 
the law as clearly and succinctly as I can, enlarging upon 
the reasons and principles involved "when I treat of ques- 
tions more than usually important, difficult, or uncertain. 
In the notes, I give all that the complete library of this 
Law School could supply me with, of authorities needed 
to verify the law as stated, or exhibit the qualifications or 
modifications to which it is subject, and enable an inquirer, 
with a library at command, to make a thorough investiga- 
tion of any question. The great and still growing 
increase in the number of reports makes it very difficult 
for any individual to have a full collection of them ; and . 
leads me to believe that a work intended, on the one hand, 
to supply on its specific subjects the want of a library 
so far as any single work can hope to do this, and, on the 
other, to facilitate the use of a complete library for those 
who have access to one, will be found useful to students 
and practitioners. 



735706 



iv PREFACE. 

This work has been long in hand, and would have been 
published some years ago, had I not thought, with my 
publishers, that it was better to wait for peace. I shall 
not regret this delay, if it has enabled me, by additional 
labor and the use of recent authorities, to offer it in a less 
defective condition to the profession, whose kind reception 
of my other works gives me so much cause for gratitude. 

T. P. 

Cambridge, 1867. 



PREFACE 

TO THE FOURTH EDITION. 



Ix preparing a fourth edition of this work, two things 
have been kept in mind : first, to bring the work down to 
date not only in the citation of authorities, but also in the 
statement of principles ; second, to keep the work within 
the limits of a single easily-handled volume. In collecting 
new authorities the editor has attempted to give as many 
as possible of the English and American cases decided 
since the publication of the last edition, and to add such 
earlier authorities as would establish or illustrate the 
statements of principle added in this edition. Some such 
statements, which seemed necessary to a complete pres- 
entation of the subject, have been inserted in the text 
or added in the form of notes. The recent development 
in importance of new forms of business combination 
seemed to call for a brief statement of the principles 
governing such combinations, and a chapter has accord- 
ingly been added upon that subject. 

The important change in the conception of a partner- 
ship held by many legal minds, which was caused by the 
decision of the House of Lords in the case of Cox v. 
Hickman, — a change, the full significance of which is even 
yet scarcely apprehended, — made it necessary to rewrite 
the first and fifth chapters of this work. Much of the 
discussion in them was rendered unnecessary, and has 
been omitted ; and the mercantile conception of a partner- 



Vi PREFACE. 

ship, which seems in consequence of that decision to have 
become the legal conception also, has been carefully ex- 
plained. A comparison with the earlier editions will show 
with what sagacious legal insight the author himself 
arrived at what we must think very nearly the true 
conception of a partnership at a time when it had little 
recognition from bench or bar. Great acknowledgment is 
due to Prof. J. B. Ames, to whom" more than to any one 
in this country we owe the acceptance of the doctrine. 

With a view to prevent an increase of bulk, all that 
seemed unnecessary or obsolete in the last edition, both 
in the text and in the notes, has been omitted. Nothing 
pertinent to the subject, however, has been stricken out 
unless it was a restatement of matter found elsewhere in 
the work. Many notes have been materially shortened 
by compressing statements of cases contained in them. 

That the book might be more conveniently consulted, 
it has been divided into sections, and it has therefore been 
necessary to abandon the original paging. The index has 
been entirely rewritten and much enlarged, and no diffi- 
culty, it is hoped, will be experienced in finding a 
reference to an earlier edition. An appendix of Forms of 
Articles of Copartnership has been annexed, as useful to 
the practitioner. 

All matter added to the text and to the author's notes 
has been enclosed in brackets. The editor's notes are 
distinguished by being numbered. 

J. H. BEALE, Jr. 

Cambridge, September 1, 1893. 



CONTENTS. 



PAGE 

Table of Cases xi 

CHAPTER I. 
Definition and Nature of a Partnership 1 

CHAPTER 11. 
How Partnership may be made 5 

CHAPTER III. 
Of Partners 15 

CHAPTER IV. 
Of the Purposes and Kinds of Partnership 34 

CHAPTER V. 
Who are Partners 39 

CHAPTER VI. 
Who are liable as Partners as to Third Parties .... 72 



CHAPTER VII. 

Of the Rights and Duties of Partners between Them 

selves 

Sec. I. Rights and powers of a partner 

Sec. II, Extent of the power of a single partner . . 
Sec. III. Power of one partner to issue negotiable paper 
Sec. IV. Of the power of a majorit}- of the partners . 
Sec. V. Of the dut}^ of partners toward each other . 
Sec. VI. Interpretation of partnership agreement . . 
Sec. VII. Of the rights of property- of the partners inter se 



127 
127 

140 

lfi7 
1«7 
102 
20.5 
229 



viii CONTENTS. 

CHAPTER VIII. 

Of the Remedies of Partners inter se ....... . 246 

Sec. I. General considerations 246 

Sec. II. Questions between partners cognizable at law . . 251 
Sec. hi. Questions between partners cognizable only in 

equity 269 

Sec. IV. On the methods and processes of equity applicable 

in cases of partnership 278 

CHAPTER IX. 

Of Remedies by Partners against Third Parties • . . . 307 

CHAPTER X. 

Of the Remedies of Third Persons against the Partner- 
ship AND against Partners 324 ^ 

CHAPTER XI. 
Of the Real Estate of a Partnership 348 

CHAPTER XII. 
Of Dissolution 370 

CHAPTER XIII. 

Of a Change in the Partnership 398 

Sec. I. Of the effect of any change in the partnership . . 398 

Sec. II. Of a retiring partner 400 

Sec. III. Of an incoming partner 426 

Sec. IV. Of the death of a partner 431 

CHAPTER XIV. 
Of Dissolution by Decree 454 / 

CHAPTER XV. 

Of Bankruptcy and Insolvency 463 

Sec. I. When and how a bankruptcy dissolves a partner- 
ship 463 

Sec. II. Of the effect of the bankruptcy of a partner upon 

solvent partners 465 

Sec. III. How the funds are appropriated to the debts . . 475 
Sec. IV. What debts or funds are joint, and what are 

several 481 



CONTENTS. IX 

CHAPTER XVI. 

Of an Account 505 

Sec. I. When an account will be ordered 505 

Sec. II. Of opening an account for error 511 

Sec. III. How an account should be taken 517 

CHAPTER XVII. 

Of Limited Partnerships 532 

CHAPTER XVIII. 

Of Joint-stock Companies 549 

CHAPTER XIX. 

Business Combinations and " Trusts " 557 



Appendix of Eorms 569 



Index = . 579 



TABLE OF CASES. 



References are to pages. 



A. 

Aas V. Benham (1891, 2 Ch. 244) 
Abat V. Penny (19 La. Ann. 289) 
Abbot V. Bayley (6 Pick. 89) 

V. Smith (2 W. Bl. 947) 254, 

276, 
Abbott V. Jackson (43 Ark. 212) 

('. Jolinson C62 N. H. 9) 

V. Omaha Smelting Co. (4 Neb. 

416) 
Abbott's Appeal (50 Pa. 234) 
Abel V. Forgue ( 1 Root 502) 
V. Sutton (3 Esp. 108) 381, 382, 



Abell, Ex parte (4 Ves. 837) 478, 

V. Phillips (13 S. W. 109) 

Abernathy v. Moses (73 Ala. 381 

363, 
Abpt V. Miller (5 Jones .32) 172, 

Abrahams v. Myers (40 Md. 499) 
Ackerman, Ex />arte (14 Ves. 604) 
Ackley v. Staehlin (56 Mo. 558) 98, 
Adam, Ex parte (2 Rose 36, 1 Ves. & 
B. 493) 21, 488, 

Adams, Ex parte ( 1 Rose 305) 474, 

V. Adams (7 Abb. N. C. 292) 

V. Bankart (1 C. M. & R. 685) 

V. Carroll (85 Pa. 209) 

';. Carter (53 Ga. 160) 

V. Eatherly Hardware Co. (78 

Ga, 485, 3 S. E. 480) 

V. May (27 F. U. 907) 

V. Morrison (113 N. Y. 152, 20 

N. E. 829) 
r. Thornton (82 Ala. 260, 3 So. 

20) 134, 

V. Warren (11 So. 754) 

Adams Bank v. Rice (2 All. 480) 
Adamson, Ex parte (8 Ch. D. 807) 
Addams i;. Tutton (39 Pa. 447) 259, 
Adderly v. Dixon (1 Sim. & S. 610) 
Addis t'. Wright (2 Mer. 117) 3.30, 
Addison V. Overend (6 T. R. 766) 
Adee v. Cornell (93 N. Y. 572) 
Adickes v. Lowry (15 S. C. 128) 
Aflalo V. Fourdrinier (6 Bing. 309) 
Agace, Ex parte (2 Cox 312) 96, 99, 



198 
399 

23 
267, 
336 

23 
191 

50 
359 
144 
402, 
406 
491 
265 
359, 
364 
173 
159 
479 
100 

496 

497, 
499 
243 
148, 
152 
66 
58 

89 
334 

68 

1.35 
201 
5 
487 
875 
209 
444 
320 
135 
476 
499 
147 



Agawam Bank v. Morris (4 Gush. 99) 

182, 485 
Agnew V. Johnson (17 Pa. 373) 304 

y. Piatt (15 Pick. 417) 468 

Ah Lep V. Gong Choy (13 Ore. 205, 9 

Pac. 483) 89 

Airey v. Borham (29 Beav. 620) 530 

Akhurst v. Jackson (1 Swanst. 85, 1 

VVils. 47) 214, 276, 501, 528, 530 

Ala. Coal Min. Co. v. Brainard (35 

Ala. 476) 170 

Alabama Fertilizer Co. v. Reynolds 

(79 Ala. 497) 8.3, 103, 105 

Albers i;. Wilkinson (6 G. & J. 358) 150 
Albretcht v. Sussman (2 Ves. & B. 

323) 26, 309 

Alcock V. Taylor (1 Tam. 506) 372, 392 
Alder v. Fouracre (3 Swanst. 489) 288 
Alderson v. Pope (1 Camp. 404) 78, 105, 

164 
Aldrich v. Grimes (10 N. H. 194) 18 

V. Lewis (60 Miss. 229) 249 

Alexander, Ex parte (1 Glyn & J. 409) 109 
V. Alexander (85 Va. 353, 7 S. E. 

335) 1.55 

V. Barker (2 Cr. & J. 133) 143, 272 

316, 317, 498 
V. Gorman (15 R. L 421, 7 Atl. 

243) 478 

V. Handley (11 So. 390) 68, 104 

«;. Heriot (Bail. Eq. 223) 18 

V. Hutcheson (2 Hawks 535) 19 

V. Jones (90 Ala. 474, 7 So. 903) .309 

('. Kimbro (49 Miss. 529) 3-54 

V. King (87 Ala. 642, 6 So. 382) 309 

V. Stern (41 Tex. 193) 145 

Alexandria v. Patten (4 Cranch 317) 420, 

421 
Alfele V. Wright (17 Ohio 2-38) 138 

Alger V. Thacher (19 Pick. 51) 402 

Alkire v. Kahle (123 111. 496, 17 N. E. 

693) 352 

AUcott V. Strong (9 Cush. 323) 69, 164, 

422, 425 
Allegheny Nat. Bank v. Bailey (147 

Pa. HI, 23 Atl. 439) 539 

Allegre v. Insurance Co. (6 H. & J. 

413) 219 

Allen, In re (41 Minn. 430, 43 N. W. 

382) 537, 542 



xu 



TABLE OF CASES. 



Allen V. Blanchard (9 Cow. 631) 35 

V. Gary (33 La. Ann. 1455) 98, 186 

V. Centre Vale Co. (21 Conn. 

130) 327, 332, 339 

t'. Cheever (61 N. H. 32) 152 

V. Coit (6 Hill 318) 181, 520 

c. Davis (13 Ark. 28) 34,63 

V. Dunn (15 Me. 292) GO, 346 

V. Farrington (2 Sneed 626) 144 

f. Hill (16Cal. 113) 434 

V. Kilbre (4 Madd. 464) 503 

V. Owens (2 Speers 170) 164 

r. Rostain (11 S. & R. 362) 6 

V. Second Nat. Bank (6 Lea 558) 442 

V. Wells (22 Pick. 450] 329, 336, 338 

414, 446, 478 

V. Whetstone (35 La. Ann. 846) 351 

V. White (Minor 365) 109, 312 

V. Withrow (110 U. S. 119) 364 

V. Woonsocket Co. (11 R. I. 288) 27 

AUfrey v. Allfrey (1 McN. & G. 87) 514 
Alliance Bank v. Keaseley (L. R. 6 

C. F. 433) 147 

Allison V. Ferry (130 111. 9, 22 N. E 



492) 



7,349 

332 

445, 452 

339 

11, 130 

45 



Anderson v. Pollard (62 Ga. 46) 445 

V. Powell (44 la. 20) 9 

V. Taylor (2 Ired. Eq. 420) 200, 384 

V. Tompkins (1 Brock. 4-56) 131, 132, 

133, 134, 135, 153, 154, 367, 508 

f. Wallace (2 Moll. 540) 285 

V. Wanzer (5 How. Miss. 587) 164 

'•. Weston (6 Bing. N. C. 296) 406 

Andrew, Succession of (16 La. Ann. 
197) 464 

V. Boughey (Dyer 75 a) 484 

Andrews, Ex parte (25 Ch. D. 505) 497 

V. Brown (21 Ala. 437) 349, 356, 362, 

366, 367 

V. Conger (26 U. S. L. Co-op. Ed. 

87 

258, 

277 

5 

325 

82 



Alpaugh V. Savage (19 Atl. 380) 
Alsop V. Mather (8 Conn. 584) 
Alter I'. Brooke (9 Fhila. 258) 
Alvord V. Smith (5 Pick. 232) 
Ambler v. Bradley (6 Vt. 119) 

V. Whipple (20 Wall. 546) 455 

America, Bank of v. Shaw (142 Mass. 

290, 7 N. E. 779) 187 

American Bank v. Doolittle (14 Pick. 

126) 143 

American Bank Note Co. v. Edson 

(56 Barb. 84) 216 

American Biscuit & Mfg. Co. v. Klotz 

(44 F. R. 721) 559, 568 

American Exch. Bank v. Ga. Const. 

& Inv. Co. (87 Ga. 651, 13 S. E. 505) 98 
American Linen Tliread Co. v. Wor- 

tendyke (24 N. Y. -550) 402 

Ames V. Ames (37 F. R. 30) 352, 366 

V. Downing (1 Brad. 321) 436, 439, 

534, 543 
Amidown v. Osgood (24 Vt. 278) 406, 407, 

408 
Amory v. Francis (16 Mass. 308) 485 

Amoskeag Mfg. Co. v. Spear (2 Sandf. 

599) 244 

Amplilett V. Hubbard (29 Mich. 298) 491 
Anderson v. Ackerman (88 Ind. 481) 248. 

433 

V. Anderson (25 Beav. 190) 455 

V. Clav (1 Stark. 405) 6 

V. Henshaw (2 Day 272) 95 

I', Holmes (14 S. C. 162) 418 

V. Lemon (8 N. Y. 236, 4 Sandf. 

552) 196 

V. Levan (1 W. & S. 334) 69, 76, 93, 107 

V. Maltbv (4 Bro. C. C. 423, 2 

Ves. Jr. 244) 489 

V. Moncrieff (3 Desaus. 124) 209 

I'. Norton (15 Lea 14) 136 



90) 
V. Ellison (6 J. B. Moo. 199) 



V. Garstin (10 C, B. n. s. 444) 

V. Keith (34 Ala. 722) 

V. Lehott (10 Barr 47) 

V. Planters' Bank (17 Sm. & M. 

192) 185 

V. Schott (10 Barr 47) 543, 545 

Andriessen's Ajjpeal (123 Pa. 303, 16 

Atl. 840) 305 

Angler v. Webber (14 All. 211) 239 

Anon. (2 Ca. Ch. 38, 16 Vin. Abr. 242) 

132, 147, 290 

(12 Mod. 446) 

(W. Jones 253) 

(Styles 370 a) 

(2 Eq. Abr. 12) 

(1 Ves. 476) 

(2 Ves. Sen. 629) 

(1 Madd. Ch. 525) 

(2 K. & J. 441) 



434) 
Ansell 



(Taylor 113) 
(2 Hayw. 99) 
Lay field (1 



142, 144, 466 

320 

2, 168 

515 

291 

209, 279 

209 

284 

150 

150 

Salk. 292, Holt 

2, 142, 163, 185 
Waterhouse (6 M & S. 390) 254, 
267, 268. 269 
Anten v, Ellingwood (51 How. Pr. 

359) 57 

Anthon i'. Fisher (Doug. 649) 26 

Anthony v. Butler (13 Pet. 423) 150 

Apperly r. Page (1 Phil. 779) 510 

Ai)pleby, Ex parte (2 Deac. 482) 419. 484 
Apsey, Ex parte (3 Bro. C. C. 265) 123 
Arbonin, Ex parte (1 De Gex 359) 488, 

493, •194 
Arden v Sharpe (2 Esp. 525) 168, 170, 

180 

V. Tucker (4 B. & Ad 815) 317 

Areall v. Smith (3 Den 435) 547 

Arkwright, Ex parte (3 Mont. D. & D. 

129) 495 

Arlington v. Merrick (2 Saund. 412) 315 
Armsby v. Farnam (16 Pick. 318) 312, 

313, 416 
Armstrong v. Armstrong (2 M. & K. 
45) 8 

V. Fahnestock (19 Md. 59) 138 

V. Hussey (12 S. & R. 315) 74, 409 



TABLE OF CASES. 



XIU 



Armstrone )•, Lewis (2 C. & M. 274) 8, 10 

r. Kirbinson (5 (i. & J. 412) 14'J 

Arnold v. Arnold (UO N. Y. 580) 248 

V. Brown (24 Pick. 80) 132, 179, 301, 

392, 4(34 

V. Camp (12 .Johns. 400) 417 

V. Danziger (30 F. K. 898) 543 

V. Hagerman (45 N. J. Eq. 186, 

17 Atl. 03) 332 

Artisans' Hank v. Treadwell (34 Barb. 

553) 540, 542, 545 

Artman r. Ferguson (73 Mich. 146, 

40N. W. 907) 24 

Arton V. Booth (4 J. B. Moore 192) 142, 

145, 307 
Ash V. Guie (97 Pa. 493) 52 

Ashley v. Williams (17 Ore. 441, 21 

Pac. 550) 508 

Ashton V. Robinson (L. R. 20 Eq. 25) 354 
Ashuelot R. R. v. Elliot (57 N. H. 307) 203 
Ashworth v. Munn (15 Ch. D. 363) 360 
Askew V. Springer (HI 111. 602) 201, 300 
Aspinall v. London & N. W. Ry. (11 

Hare 325) 312, 342, 375, 392 

Aspinwall v. Williams (1 Ohio 38) 12, 

103, 110 
Astle V. Wright (23 Beav. 77) 530 

Astley V. Weklon (2 B. & P. 346) 224 
Atchison u. Jones (1 S. W. 406) 136 

Atchison Savings Bank v. Templar 

(26 F. R. 580) 
Atchison, T. & S. F. R. R. ;;. Roach 

(35 Kas. 740, 12 Pac. 93) 
Atherton v. Tilton (44 N. H. 452) 
Atkin V. Berry (1 Lea 01) 
Atkins f. Atkins (Buck 479) 

V. Hunt (14 N. H. 205) 

I,-. Prescott (10 N. H. 120) 

V. Tredgold (2 B. & C. 23) 156, 157, 

159, 448 
Atkinson v. Farmers' Bank (Crabbe 

529) 470 

V. Laing (D. & R. 16) 109, 312, 313, 

388 

V. Mackreth (L. R. 2 Eq. 570) 54, 118, 

247 
Atkyns v. Kinnier (4 Ex. 776) 
Atlantic Glass Co. v. Paulk (83 Ala. 

404, 3 So. 800) 
Atlantic State Bank v. Savery (82 

N. Y. 291) 
Atlas Nat. Bank v. Savery (127 Mass. 

75) 99, 187 

Attaway v. Third Nat. Bank (15 Mo. 

App. 577) 8 

Attorney-General v. Brooksbank (2 

Y. &j. 42) 518 

V. Burges (Bunb. 223) 124, 125 

V. Heelis (2 Sim. & S. 67) 553 

V. Hubbuck (13 Q. B. D. 275) 360 

V. Pamther (3 Bro. C. C. 441) 27 

V. Siddon (1 Cr. & J. 220) 124 

V. Strongforth (Bunb. 97) 124 

V. Wilson (Cr. & Ph. 1) 269 

Attwater v. Fowler (1 Hall 180) 260 



145 



65 



98 
470 



345 



225 
124 



187 



Attwater v. Fowler (1 Edw. 417) 519 

Attwood V. Banks (2 Beav. 102) 94 

V. Rattenbury (6 J. B. Moo. 579) 316 

Atwood V. xMaude (L. R. 3 Ch. 369) 530 
Aubert v. Maze (2 B. & P. 371) 9, 269 
Auld ('. Butclier (2 Kas. 135) 508 

Auley V. Osterman (65 Wis. 118, 25 

N. W. 657) 480 

Ault V. Goodrich (4 Russ. 430) 157, 193. 

384, 448 
Aultman v. Fuller (53 La. 60) 344 

Austin V. Appling (88 Ga. 54, 13 S. E. 

955) 409 

V. Bostwick (9 Conn. 496) 160, 162 

V. Holland (69 N. Y. 571) 407 

V. Vandermark (4 Hill 261) 184, 185 

V. Walsh (2 Mass. 401) 313 

V. Williams (1 Ohio 282) 12, 103 

Averill v. Lyman (18 Pick. 351) 143; 416 
Avery v. Louve (1 La. Ann. 457) 12, 13 

V. Myers (60 Miss. 367) 65, 452 

V. Rowell (59 Wis. 82, 17 N. W. 

875) 83 

Axe V. Clarke (2 Dick. 549) 290 

Ayer v. Tilden (15 Gray 178) 203 

Ayrault v. Chamberlin (26 Barb. 89) 409, 

428 
Ayres v. C. R. I. & P. R. R. (52 la. 

478, 3 N. W. 522) 435 
V. Gallup (44 Mich. 13) 429 



B. 



Babb V. Read (5 Rawle 151) 553 

Babcock c. Brashear ( 19 La. 404) 444 

V. Stewart (58 Pa. 179) 429 

V. Stone (3 McLean 172) 180, 247, 

308 
Babonneau v. Farrell (15 C. B. 360) 
Bachurst ;;. Clinkard (1 Show. 169) 



320 
324, 
339 
168 
476 
320 
404 



Backhouse v. Charlton (8 Ch. D. 444) 
Backus V. Murphy (39 Pa. 397) 

V. Richardson (5 Johns. 483) 

V. Taylor (84 Ind. 503) 

Badeley v. Consolidated Bank (38 Ch. 

D. 238) 42, 43, 47, 58 

Baer v. Wilkinson (35 W. Va. 422, 

14 S.E.I) 332 

Bagley v. Peddie (5 Sandf. 192) 223, 225 

v. Smith (10 N. Y. 489) 259 

Bagshaw v. Parker (10 Beav. 532) 460 
Bailey v. Clark (6 Pick. 372) 61, 78 

V. Ford (13 Sim. 495) 457 

V. Lyman (1 Story 396) 311 

V. Moore (25 111. 347) 506 

V. Starke (6 Ark. 191) 252, 257, 267 

Bainbridge n. Wilcocks (1 Bald. 536) 515 
Baird v. Baird (1 Dev. & B. 524) 280, 509 

V. Cochran (4 S. & R. 397) 97, 172 

V. Planque (1 F. & F. 344) 103 

Bake v. Smiley (84 Ind. 212) 476 
Baker, Ex parte (8 Law Rep. 461) 485 
V. Biddle (Bald. 418) 612, 515 



SIV 



TABLE OF CASES. 



Baker v. Charlton (1 Peake 80) 106, 

182, 

V. Jewell (6 Mass. 460) 

V. Mayo (129 Mass. 517) 

V. Middlebrooks (81 Ga. 491,8 S. 

E. 320) 

V. Nachtrieb (19 How. 126) 

V. Nappier (19 Ga. 520) 

V. Plaskitt (5 C. B. 2(52) 

I'. Slieelian (29 Minn. 235. 12 N. 

W. 704) 

V. Stackpoole (9 Cow. 420) 

r. Wheaton (5 Mass. 509) 

Baker's Appeal (21 Pa. 76) 

Baldey v. Bra';kenridge (39 La. Ann. 

660, 2 So. 410) 103, 

Baldney v. Ritchie (1 Stark. 338) 
Baldwin v. Johnson (Saxt. Cli. 441) 

V. Leonard (39 Vt. 260) 

V. Useful Knowledge Society (9 

Sim. 393) 
Ball V. Britton (58 Tex. 57) 372, 
V. Farley (81 Ala. 288, 1 So. 

253) 
Ballam i;. Price (2 J. B Moore 235) 
Ballard v. Callison (4 W. Va. 326) 
Ballon V. Spencer (4 Cow. 163) 
Balmain v. Shore (9 Ves. 500) 127, 
Balmer, Ex parte (13 Ves. 313) 
Baity de v. Trump (1 Md. Ch. 517) 
Bamford v. Baron (2 T. R. 594) 
Banchor v. Cilley (38 Me. 553) 
Bandier, Ex parte (1 Atk. 98) 
Bangor v. Warren (34 Me. 324) 
Bank, Appeal of (32 Pa. 440) 

, Ex parte (2 Glyn & J. 363) 

, (12 Ch. D. 917) 

I'. Alberger (101 N. Y. 202) 

V. Almy (117 Mass. 476) 50, 

V. Altheimer (91 Mo. 190, 3 S. 

W. 858) 68, 

V. Andrews (2 Sneed 535) 

V. Astor (11 Wend. 87) 

V. Avmar (3 Hill 262) 

V. Bailey (147 Pa. HI, 23 AtL 

439) 

V. Bangs (10 S. W. 633) 

V. Bank of Commerce (94 III. 

271) 475, 476, 
V. Barnes (86 Mich. 632, 49 N. W. 

475) 

V Baugh (9 Sm. & M. 290) 

V. Bavless (35 Mo. 428) 

V. Bayliss (41 Mo. 274) 89, 

V. Bigler (83 N. Y. 51) 

V. Binney (5 Mas. 176) 29, 36, 

212, 394, 443, 

V. Bowen (7 Wend. 158) 

V. Bradner (43 Barb. 379) 

V. Breese (39 la. 640) 

V. Brooking (2 Litt. 41) 



V.Burt (93 N. Y. 233) 
V. Cameron (7 Barb. 143) 



169, 
184, 
113, 

163, 



170, 
193 
313 
627 

363 

37 

106 

650 

335 
163 

468 
327 

805 
272 
367 
118 

278 
393 

252 
144 
293 

53 

432 

9 

200 

493 

48 
479 
483 
327 
146 
442 
168 
550 

187 
433 
206 
180 

539 
526 

487 

187 
381 
181 
181 
451 
114, 
520 
185 
177 
170 
180, 
206 
488 
180, 
184 



Bank v. Campbell (75 Va. 534) 
V. Carrollton K. R. (U Wall. 

624) 231, 

V. Carter (20 S. W. 836) 

u. Case (8 B. & C. 427) 113,114, 

181, 

V. Christie (8 CI. & F. 214) 

V. Clark (32 N. E. 255) 

V. Clarke (4 Leigh 603) 

V. Colgate (120 N. Y. 381, 24 N. 

E. 799) 
V. Collins (28 Eng. L. & Eq. 7) 

V. Conway (67 Wis. 210, 30 N. 

W. 215) 68, 69, 

V. Cox (38 Me. 500) 75, 

V. Davis (2 Hill 264) 

V. Day (12 Heisk. 413) 

V. Dearborn (20 N. Y. 244) 

V. Delafield (126 N. Y. 410, 27 

N. E. 797) 

V. De Puy (17 Wend. 47) 

V. Doolittle (14 Pick. 126) 

V. Dumell (5 Mas. 56) 381, 

V. Eaton (5 Humph. 499) 89, 

V. Fitch (49 N Y. 539) 

V. Foster (44 Barb. 87) 87, 

V. French (6 All. 313) 

V. Frye (148 Mass. 498, 20 N. E. 

325) 170, 

V. Furness (114 U. S. 376) 

V. Ga. &c. Inv. Co. (87 Ga. 651, 

13 S. E. 505) 

V. Gore (15 Mass. 75) 

V. Gould (6 Hill 309) 538, 540, 



V. Gray (14 Barb. 479) 
V. Green (30 N. J. 316) 
V. (40 Ohio St. 431) 



95, 
414 



V. Greely (16 Me. 419) 

V. Hackett (61 Wis. 335, 21 N. 

W. 280) 

('. Hale (8 Bush 672) 

V. Hall (101 U. S 43) 

V. (35 Ohio St. 158) 

V. ( 1 Harp. 245) 376, 

V. Hennessey (48 N. Y. 545) 

V. Herz (89 N. Y. 629) 

V. Hibbard (48 Mich. 452, 12 N. 

W. 651) 

V. Hildreth (9 Cush. 359) 

V. Hine (49 Conn. 236) 49, 

V Hooper (36 Me. 222) 

V. Horn (17 How. 157) 

V. Horton (1 Hill 572) 

V. Howard (35 N. Y 500) 

V. Hume (4 Mack. 90) 

V. Humphreys (1 McC. 388) 

V. Hyde (11 Me. 196) 270.271, 

V. Johnson (79 la. 290, 44 N. W. 

551) 134, 
V. (47 Oh. St. 306, 24 N. E. 

603) 



98 

340 

30 
168, 
206 
425 
642 
159 

543 

206, 
216 

405 
114 
413 

89 
408 

247 
143 
143 
403 
170 
345 
180 
170 

405 
427 

98 
119 
546, 
547 
28 
412 
380, 
415 
171 

335 
354 
427 
50 
377 
114 
404 

114 
382 
427 
420 
465 
381 
403 
186 
381, 
413 
807 

146 

351 



TABLE OP CASES. 



XV 



Bank v. Jones (119 111. 407, 9 N. E. 

885) 347 

V. Keasley (L. R 6 C. P. 433) 147 

V. Keech (2G Md. 521) 187 

y. Keizer (2 Duv. 109) 477 

V. Kendall (7 R. I. 77) 170 

V. Kenney (79 Ky. 133) 477, 487 

u. Klein (64 Miss. 141) 332 

V. Knapp (3 Pick. 113) 511 

V. Landon (45 N. Y. 410) 49, 51, 550 

V. Law (127 Mass. 72) 99, 187 

V. Lewis (13 Sm. & M. 226) 168, 180 

V. Locke (89 Iiid. 428) 476 

V. Luinbert ( 10 Me. 416) 180, 185, 186 

V. McCaskill (16 Col. 408, 26 Pac. 

821) 109, 171,404,405 

V. McChesney (20 N. Y. 240) 408, 411 

V. Matthews (49 N. Y. 12) 403 

V. Meader (40 Minn. 325, 41 N. 

W. 1043) 87, 89, 163 

V. Messenger (9 Cow. 37) 143 

V. Mitchell (58 Cal 42) 331 

V. (8 Yerg. Ill) 307 

V. Monteath ( 1 Den. 402) 110, 113, 

114,169,206 

V. Moore (13 N. H. 99) 69, 164 

V. Moorehead (5 W. & S. 542) 420 

V. Morgan (73 N. Y. 593) 96, 171.445 

V. Morris (4 Cush. 99) 182, 486 

V. Mudgett (44 N. Y. 514) 187 

y. (45 Barb. 663) 411 

0. Mumford (2 Barb. Ch. 696) 312 

V. My ley (12 Pa. 544) 361 

V. Needell ( 1 F. & F. 461) 410 

V. Norton (1 Hill 572) 379, 408, 413 

V. Noyes (62 N. H. 35) 83 

y. Ogden (29 III. 248) 28 

V. Osgood (4 Wend. 607) 144 

V. Padgett (69 Ga. 159) 50 

V. Page (98 III. 109) 168, 374 

V. Palmer (47 Conn. 443) 60 

V. Parsons (128 Ind. 147,27 N. E. 

486) 136 

V. Phetteplace (8 R. L 56) 354 

I'. Pratt (51 Me. 563) 380 

V. Rice (2 All. 480) 5 

V. Richardson (33 La. Ann. 1312) 98 

V. Ritter (12 Atl. 659) 136 

V. Rollins (13 Me. 202) 417 

V. Root (4 Cow. 126) 165 

V. Rudolf (5 Neb. 527) 118 

V. St. John (25 Ala. 566) 32, 273 

V. Saffarans (3 Humph. 597) 174, 184 

('. Savery (127 Mass. 75) 99, 187 

V. (82 N. Y. 291) 187 

V. Sawyer (38 Oh. St. 339) 351, 366 

V. Seton (1 Pet. 299) 469 

V. Shaw (142 Mass. 290, 7 N E. 

779) 187 

V. Shryock (48 Md. 427) 344, 345 

V. Sirret (97 N. Y. 320) 537 

y. Smith (26 W. Va. 641) 49 

V. Sprague (20 N. J. Eq. 13) 364, 490 

V. Stall (15 Wend. 364) 180, 185 

V. Stewart (4 Bradf. 254) 331 



Bank v. Stone (38 Mich. 779) 50 

i>. Strauss (32 N. E. 1066) 536, 540 

V. Templar (26 F. R. 580) 145 

V. Thomas (47 N. Y. 15) 89 

V. Tracy (77 Mo, 594) 432, 451 

V. Treadwell (34 Barb. 553) 540, 

542 545 
1-. Underbill (102 N. Y. 336, 7 

N. E. 293) 98, 99 

V. Vanderhorst (32 N. Y. 553) 432 

V. Walker (66 N, Y. 424) 50 

y. Warren (15 N. Y. 577) 173,187 

V. White (30 F. R. 412) 83, 87 

V. Whitney (4 Lans. 34) 540 

V. Wilkins (9 Me. 28) 137, 320, 325, 

327, 339, 344, 346, 500 
V. Williams (128 N. Y. 77, 28 N. E. 

33) 331 

V. Wilson (36 U. C. Q. B. 9) 171 

V. Winship (5 Pick. 11) 114, 171 

Bankhead v. Alloway (6 Cold. 56) 139, 

170 
Banks, Ex parte (1 Atk. 106) 487 

. (2 J. & La T. 212) 488 

V. Gibson (34 Beav. 566) 243 

V. Gould (Edw. Rec. 316) 301 

V. Mitchell (8 Yerg. Ill) 246 

V. Steele (27 Neb. 138, 42 N. W. 

883) 497 

Bannatyne v. Leader (10 Sim 350) 494 
Banner Tobacco Co. v. Jeni.son (48 

MiclL 459, 12 N. W. 655) 84 

Barber v. Backhouse (1 Peake61) 97, 176 

V. Hartford Bank (9 Conn. 407) 446 

Barclay, Ex parte ( 1 Glyn & J. 272) 485 

V. Gooch (2 Esp. 571) 269 

('. Lucas (1 T. R. 291) 314 

". Phelps (4 Met. 397) 470, 476, 486 

Barckle v. Eckart ( 1 Den. 337, 3 N- Y. 

1.32) 60 

Barcroft v. Snodgrass (1 Cold. 430) 96 

Bardwell v. Perry (19 Vt 292) 329, 3-36, 

.3.38, 36.5, 476 

Barfield v. Loughborough (L. R. 8 Ch. 

1) 202 

Barfoot v. Goodall (3 Camp. 147) 412 
Bargate v. Shortridge (5 H.L. C. 297) 130 
Barhydt v. Perry (57 la. 416, 10 N. W. 

820) 427 

Baring v. Crafts (9 Met. 380) 113, 128, 

416 

V. Dix (1 Cox 213) 455, 457, 462 

V. Lyman (1 Story 423) 247 

Barker r. Blake (11 Mass. 16) 96, 416, 422 

V. Burgess (3 Met. 273) 97 

V. Buttress (7 Beav. 134) 448 

V. Goodair (11 Ves. 78) 290, 391, 

463, 464, 466, 468, 470, 476, 503 

V. Parker (1 T. R. 287) 314, 452, 503 

V. Richardson (1 Y. & J. 362) 142, 

145 
Barklie v. Scott (1 H. & B. 83) 17, 48, 49 
Barlow v. Reno (I Blackf. 252) 155 

V. Wiley (3 A. K. Marsh 467) 22 

Barnard, In re (32 Ch. D. 447) 183 



XVI 



TABLE OF CASES. 



Barnes v Boyers (34 W. Va. 303, 12 

S. E. 708) 418 

V. Jones (91 Ind. 161) 293 

u Union Ins. Co. (51 Me. 110) 236 

Barnett, Ex parte (1 De Gex 194) 494 

V. Smith (17 111. 565) 107 

Barnewall, Ex parte (6 De G. M. & G. 

795) 487 

Barney v. Currier (I D. Chip. 315) 165 

r. Smith (4 H. & J. 485) 443 

Barnley v. Rice (18 Tex. 481) 167 

Barnstead v. Empire Mining Co (5 

Cal. 299) 454, 507 

Barratt y. Collins (10 J. B. Moo 446) 320 
Barrett v. Furnish (21 Ore. 17, 26 

Pac. 861) 336 
V. McKenzie (24 Minn. 20, 1 

N. W. 123) 340, 344, 345 

V. Swann (17 Me. 180) 58, 171 

Barring v. Dix (1 Cox 213) 371 
Barringer v. Sneed (3 Stew. 201) 162 
Barrow, Ex parte (2 Rose 252) 10, 70, 
128, 129, 138 
V. Rhinelander (1 Johns Ch. 

550) 511 

Barrows v. Downs (9 R. I. 446) 540, 547 
Barry i-. Nesham (3 C. B. 641) 40 

Barstow r. Adams ( 2 Day 70) 465 

V. Gray (3 Me 409) 273 

Barter v. Wheeler (49 N. H. 9) 65 

Bartle v. Coleman (4 Pet. 184) 8 

Bartlett v. Jones (2 Strobli. 471) 45, 56 
Barton v. Hanson (2 Camp. 97, 2 

Taunt. 49) 88, 103 

V Williams (5 B & Aid. 395) 54, 

131, 132, 303 
Barwis, Ex parte (6 Ves. 601) 21 

Bascom v. Young (7 Mo. 1) 142, 143 

Bass V Estill (50 Miss. 300) 331 

V Taylor (34 Miss. 342) 383 

Bassett v. Miller (39 Mich. 133) 333, 434 

a. Percival (5 All. 345) 239 

V. Shepardson (52 Mich. 3, 17 

N. W. 217) 388 

Batard v. Hawes (2 E. & B, 287) 254 

Bate, Ex parte (3 Deac. 358) 488 

Bates V Callender (3 Dak. 256, 16 

N. W. 506) 335 
V. Forcht (89 Mo. 121, 1 S. W. 

120) 206 
V Lane (62 Mich. 132, 28 N. W. 

753) 252 

Batson, Ex parte (1 Glyn & J. 269) 480 

, (Cooke, B. L. 503) 497 

, (2 Ca. Ch. 139) 499 

Battaille v. Battaille (6 La. Ann 682) 542 
Battley v. Bailey (1 Scott N. R. 143) 12 
Batty v. Adams Co (16 Neb. 44, 20 

N. W. 15) 352, 367 

V. McCnndie (3 C. & P. 202) 78 

Bawden v. Howell (3 M. & G. 638) 316 
Baxter v. Clark (4 Ired. 127) 74, 78 

V. Connoly ( 1 Jac. & W. 580) 240 

V. Plunkett (4 Houst. 450) 170 

V. Rodman (3 Pick. 435) 60, 61 



Baxter v. West (1 Dr. & Sm. 173) 454 
Baylis v, Dineley (3 M & S. 477) 16 

Bays V. Conner (105 Ind. 415, 5 N E 

18) 84 

Beacannon v. Liebe (11 Ore. 443, 5 

Pac. 273) 271 

Beach v. Hay ward (10 Ohio 455) 273,443 

f. Hotchkiss (2 Conn. 425) 250, 260, 

264, 507 

V. (2 Conn. 697) 

V. State Bank (2 Ind. 488) 



Beacham v. Eckford (2 Sandf. 

116) 
Beak v. Beak (3 Swanst. 627) 



313 
111, 169, 

185 
Ch 

507, 524 
380, 383, 

384 

521 
293, 

114, 316 
439, 527 
131, 425 

225 
426, 430 

105 



V. (Cas. t. Finch 190) 

Beakes v. Da Cunha (126 N. Y 

27 N E. 251) 
Beale v. Beale (2 N. E. 65) 

V Caddick (2 H. & N. 326) 

V. Hayes (5 Sandf. 640) 

V. Mouls (10 Q. B. 976) 

Beall V. Lowndes (4 S. C. 258) 

V. McCullough (27 Md. 645) 426 

Beaman v. Whitney (20 Me. 413) 12 

Bean v. Morgan (4 McC. 148) 23 

Beard v. Webb (2 B & P. 93) 22 

Beardsley v. Hall (36 Conn. 270) 160 

Beatson v. Harris (60 N. H. 83) 98 

Beatty v. Bates (4 Y. & C. 182) .34 

V. Wray (19 Pa. 516) 201, 439 

Beaumont r. Bramlev (1 Turn. 51) 512 

V. Meredith (3 Ves. & B. 180) 35, 

456, 462, 553 
Beauregard r. Case (91 U S. 134) 13, 58 
Beaver v. Lewis (14 Ark. 1.38) 371 

Beck, In re (19 Ore 503, 24 Pac. 1038) 

399, 431, 523 

V. Martin (2 McMull. 260) 142, 147 

Beckett v. Ramsdale (31 Ch. D. 177) 409 
Beckham v. Drake (9 M. & W. 79) 90 

V. Knight (4 Bing N. C. 243) 90 

V. Peag (2 Bail. 133) 178 

Beckford v. Wade (17 Ves. 87) 514 

V. Wildman (16 Ves. 438) 520 

Beck with v. Manton (12 R. I. 442) 350 

V. Talbot (95 U. S 289) 63 

V. (2 Col. 639) 57, 63 

Bedford v. Brutton (1 Scott 245, 1 
Bing. N. C. 407) 257, 258, 277 

V. Deakin (2 Stark 178, 2 B & 

Aid. 210) 387,416,417,418,482,485 
Beebe v. Rogers (3 Greene 319) 89 

Beech f. Eyre (5 M. &G. 415) 426 

Beecham v. Dodd (3 Harr. 485) 6, 45, 55 

V. Eckford (2 Sandf. Ch. 116) 199 

Beecher v. Bush (45 Mich. 188. 7 
N. W. 785) 46, 47, 51 

V. Guilhane (Mos. 3) 194 

Beers v. Reynolds (12 Barb. 288, 11 

N Y. 97) 539, 543, 544, 545 

Beitz V. Fuller (1 McC. 541) 159, 160 

Belknap v. Gibbens (13 Met. 471) 270 

Bell, Ex parteil M. & S. 761) 9, 269 



TABLE OP CASES. 



XVU 



Belly, Ansley (16 Kast 141) 318 

y. Banks (3 M. & G. 258) 91. 92 

.;. Baniett (21 VV K. 11<J) 204 

V. Hep worth (134 N Y. 442, 31 

N. E. 918) 451 

0. Hudson (73 Cal 285, 14 Pac. 

791) 512 

r. Laginaiis (1 Men 40) 304 

V. Morrison ( 1 I'et. 31J7) 150, 160, 102 

l: Newman (5 S. & R. 78) 327, 440, 

478, 500 

. i: riiyn (7 Ves. 453) 357 

Bellairs v P^lswortli (3 Camp 53) 315 

Belote V. Wynne (7 Yerg. 534) 100 

Belton r. Hodges (9 limg. .-JOo) 21 

Bendell r. Hettrick (45 H.nv. Pr. 198) 57 

Benedict v. Davis (2 McLean 347) 104, 

107 

Benfield ;'. Solomons (9 Ves. 76) 350 

Benhain o. Bishop (9 Conn. 330) 19 

r. Gray (5 C. B. 138) 377 

Benjamin u. Covert (47 Wis. 375, 2 N. 

W. 025) 409 

V. Porteus (2 H. Bl 590) 00 

■'. Stremple (13 111. 406) 304 

Bennet, Er parte (2 Atk. 527) 465 

, (Cooke B. L. 229) 4t)7 

Bennett, Re (2 Low 400) 463 

/■. Marsliall (2 Mills 436) 155 

0. Kiissell (34 Mo. 524) 200 

r. Smitli (40 Mich. 211) 249 

o. Stickney (17 Vt. 531) 145 

r. Woolfolk (15 Ga. 213) 9 

Bennett's Case (18 Beav. 339, 5 De G. 

M. & G. 284) 384 
Benmnger i'. Clarke (10 Abb. Pr n s. 

264) 

r. Hess (41 Oh. St. 64) 

Bensley r. Bignold (5 B. & Aid. 335) 
Benson, Ec parte (Cooke B. L. 278) 

IV Hadfield (4 Hare 32) 

V. Heathorn (1 Y. & C 326) 

V. McBee (2 McMuIl. 91) 



Bentley v. Bates (4 Jur. 552) 

c. (4 Y. & C. 182) 

r. Craven (18 Beav. 75) 

u. Harris (10 R. 1. 434) 

u. White (3 B. Mon 263) 



240 

87 

9 

496 

419 

384 

37, 50. 

59, 82 

281 

298 

197 

47 

37, 59,81, 

82, 163 

Benton v Chamberlin (23 Vt. 711) 409, 

410 

V. Roberts (4 La. Ann 216) 84 

Bergamini v. Bastian (35 La, Ann. 

60) 237 

Bergland v. Frawley (72 Wis. 559, 

40 N. W. 372) 99 

Berkeley v. Hardy (5 B. & C. 355) 150 
Berkshire v. Evans (4 Leigh 223) 9 

Berksliire Woolen Co, i: Juillard (75 

N. Y. 535) 182 

Bernard v. Torrance (5 G. & J, 383) 402, 

406, 410 

V. Wilcox (2 Johns. Cas. 374) 109 

Berryw. Cross (3 Sandf, Ch. 1) 450 



Berry v Folkes (60 Miss. 576) 293, 352, 
300, 367, 527 

V. Jones (11 Heisk. 200) 299 

Berthold v. Goldsmith (24 How 536) 00 
Besch V. Frolich (1 Phil. 172, 7 Jur. 

73) 38y, 460, 461 

Best V. Givens (3 B Mon. 72) 18 

Beste r. Burger (110 N. Y. 044, 17 N. 

E 734) 130 
V. His Creditors (15 La. Ann. 

55) 194 

Bethel v. Franklin (57 Mo. 460) 249,250 
Betts V. Bagley (12 Pick 572) 468 

L\ Letciier (40 N. W. 193) 351, 300 

Bevan, Ex parte (9 Ves. 222, 10 Ves. 

107) 480, 487, 488 

y. Lewis (1 Sim 370) 88,90,181, 

290, 344 
Be vans v. Sullivan (4 Gill 383) 09, 199, 

200 
Bewley v. Tarns (17 Pa. 485) 154 

Biddlecombe r. Bond (4 A. & E. 332) 219 
Biernan /■. Brasiies (14 Mo. 24) 252 

Bigelow, fn re (3 Ben. 146) 487 

V. Graniiis (2 Hill 120) 18 

r. Reynolds (08 Mich. 344, 36 

N. W. 95) .320 

Bigg, Et parte (2 Rose 37) 488, 496 

Biggs V. Fellows (8 B. & C. 402) 471 

V. Hubert (14 S. C. 620) 

V Lawrence (3 T. R 454) 

Bignold, Ex jiarte (2 Mont. & A. 655) 146 

t: Waterhouse (1 Moo. & S. 249) 86, 

142, 164, 413 
Bill a Porter (9 Conn. 23) 483 

Billings V. Meigs (53 Barb. 272) 97 

Binford r. Domniett (4 Ves. 756) 302,406 

I'. Dormnett (4 Ves 434) 498 

Bininger r. Clark (00 Barb. 113) 237,243 
Binney r. Le Gal (19 Barb. 592) 155 
r. Mutrie (12 App. Cas. 160) 222, 



8.3, 139 
323 



525 

98 

224 



Binns v. Waddill (.32 Gratt. 588) 
Birch V. Stephenson (3 Taunt. 409) 
Birchett v. Boiling (5 Munf. 442) 209, 279 
Bird i: Bird (77 Me. 499, 1 Atl. 4-55) 272 

i- Caritat (2 Johns. 342) 468 

V. Hamilton (Walk. Ch. 361) 5, 13 

;•. Lanius (4 Wis. 615) 88 

i: McCoy (22 la. 549) 

V. Morrison (12 Wis. 138) 

Birdsall v Colie (2 Stock. 63) 
Birks V. French (21 Kas. 238) 
Birtwhistlo r Woodward (95 Mo. 113, 

7 S. W. 405) 
Bisel V. Hobbs (6 Blackf. 479) 
Bishop V. Austin (66 Mich. 515,-33 N 

W. 625) 
V. Breckles (1 Hoff. Ch. 534) 



272 

7 

293, 297 

116 



340 
74 



49 
396, 
455 
109 

61 



r. Hall (9 Grav 4-30) 

/■. Shepherd (23 Pick. 492) 

Bisphain r. Patterson (2 McLean 87) 160, 

162, 104 
Bissell 1-. Adams (35 Conn, 299) 160 



XVIU 



TABLE OF CASES. 



Bissell V. Foss (114 U. S. 252) 3i 

Bitter v. liatlinian (01 N. Y, 512) 24 

liuztT v. yiiuiik (1 \V. & S. 340) 155 

Black V. Black (15 Ga. 445) 34'J 

V. Bush (7 B. xMuii 210) 327, 337 

Black's Appeal (44 Ta. 503) 470, 477 

Blackburn*, Er pane (10 Ves. 204) 400 

r McCallister (Peck 371) 150 

Blackett v. Weir (5 B. & C. 3^• ) 254, 207 
Blades v. Free ('J B. & C. 107) 387 

Blain v. Agar ( 1 Sim. 37) 277 

Blair V. Bioiuiey (5 Hare 542, 2 Pliil. 

354) 110, 142 

V. Snover (1 Halst. 153) 313 

v. Wood (108 Pa. 278) 445 

Blair Miller v. Douglas (Coll. Part 

495) 180 

Blake, A'.r fjarte (Cooke B. L 503) 490 

V. Dorgan (1 Greene 540) 371 

V. Nutter (19 Me. 10) 349 

V. Sweeting (121 III 07, 12 N. E. 

67) 306, 392 

V. Wlieadon (2 Hayw. 109) 308 

I'. Williams (0 Pick. 286) 468 

Blakeley r. Graham (111 Mass. 8) 259 
Blakeney i: Dufaur (15 Beav. 40) 294, 
295, 298, 456 
Rlaker v. Sands (29 Kas. 551) 84, 393 
Blanchard v. Coolidge (22 Pick. 151) 45, 

66,60 

V. Floyd (93 Ala. 53, 9 So 418) 351 

V Kaull (44 Cal. 440) 50 

V. Parteur (2 Hayw. 393) 93 

V. Paschal (68 Ga. 32) 335, 351 

Bland r. Haselrig (2 Vent. 152) 156 

Blankenliagen, £j: parte (Cooke B. L 

257) 487 

Blew V. Wyatt (5 C. & P. 397) 387, 419 
Bliuh V. Brent (2 Y. & C. 268) 554 

Blight V. Tobin (7 Mon. 617) 117 

Blin V. Pierce (20 Vt. 25) 272 

Blinn v. Evans (24 111. 317) 175 

Blisset V. Daniel (11 Hare 493) 193, 207, 
217, 391, 395, 399 
Bloch V. Price (32 F. R. 562) 404 

Blodgett, In re (10 N. B. R. 145) 335, 491 

V. Amer. Nat. Bank (49 Conn. 1) 451 

I'. Sleeper (67 Me. 499) 99 

V. Weed (119 Mass. 215) 87, 170 

Blood r. Goodrich (9 Wend. 75, 12 

Wend. 525) 1-50 

Bloodgood V. Zeily (2 Cai. Gas. 124) 511, 

512 
Blnomfield r. Buchanan (14 Ore. 181, 

12 Pac. 238) 524 

Blount V. Hipkins (7 Sim, 51) 555 

Bioxam v. Hubbard (5 East 407) 320 

Bloxham, Ex jmrte (6 Ves. 449) 485 

Bluck V. Capstick (12 Oh. D. 863) 214, 530 
Blue v. Leathers (15 111. 31 ) 53, 63, 262 
Blumer, In re (12 F. R. 489) 478 

, (13 F. R. 622) 487 

Blundell v. Winsor (8 Sim. 601 ) 384, 550, 

552. 554, 556 

Blytli V. Fladgate (1891, 1 Ch. 337) 121 



Blythe, Ex parte (16 Cli. D. 620) 497 

Board of Trade i;, Hayden (4 Wash. 

St. 203, 30 Pac. 87) ' 24 

Boardman v. Gore (15 Mass. 331) 78, 119 

122 

1-. Keeler (2 Vt. 65) 273, 498 

V. Mosman (1 Bro. C. C. 68) 123 

Bobo ('. Hansel! (2 Bail. 114) 18 

Bodenliam v. Purchas (2 B. & Aid. 

39) 425, 522 

Bodle V. Chenango Co. Ins. Co (2 

N. Y. 53) 235 

Boekle'n v. Hardenburgh (37 N. Y. 

Super. 110) 67 

Boggess V. Lilly (18 Tex. 200) 9 

Bogget c. Frier (11 East 301) 23 

BoKgs V. Curtin (10 S. & R. 2il) 317 

Bo'hler v. Tappan (1 F. R. 469) 135 

Boire i-. McGinn (8 Ore. 466) 519 

Bolitlio, Ex parte (Buck 100) 75, 89, 113, 

114, 181 
Bolland, Ex parte (Mont. & M 315) 121, 

122 
Boiling r. Boiling (5 Munf. 334) 512 

Bolton, Ex parte (Buck 18) 470 

V Puller (1 B. & P. 539) 70, 311, 491 

Bonbonus, Ex parte (8 Ves. 540) 99, 175, 

177,496 
Bond, Ex parte (1 Atk. 98) 
V. Aitkin (6 W. & S. 165) 



487, 496 

89, 92, 

151, 152 



V. Gibson (1 Camp. 185) 139 

V. Hayes (12 Mass. 34) 266 

V. Milbourn (20 W. R. 197) 529 

V. Nave (02 Ind. 505) 470 

r. Pittard (3 M. & W. 357) 54, 107 

Bonfield v. Smith (12 M. & W. 405) 272 
Bonnaffe v. Fenner (6 Sm. & M. 212) 6, 255 
Bunnell v. Chamberlin (20 Conn. 487) 95 
Bonner v. Campbell (48 Pa. 286) 357 
Bonney v. Ridgard (1 Cox 145) 514 
f. Stoughton (122 111. 536, 13 

N. E. 833) 306 
Bonsall v. Comly (44 Pa. 442) 491 
Bonsteel v. Vanderbilt (21 Barb 26) 66 
Boor r. Lowrey (103 Ind. 468) 105 
Booth V. Clark (17 How. .322) 296 
V. Farmers' «Sb Merchants' Bank 

(74 N. Y. 228) 204 

V. Hodgson (6 T. R. 405) 9, 269 

V. Merer ( 14 N. B. R. 575) 403 

V. Parks (1 Moll. 405) 212, 394, 436, 

438, 521 

V. Smith (3 Wend. 66) 483 

Borden v. Cuyler (10 Cush. 476) 487 

Boro i\ Harris (13 Lea 30) 344 

Bosanquet v. Wray (6 Taunt. 597) 70, 217, 
209, 271, 307, 309 
Boston & Col. Smelting Co. v. Smith 

(13RL27) 44,46,61 

Bostwick i\ Champion (11 Wend. 571, 

18 Wend. 175) 124 
Bosvil 1-. Brander (1 P. Wms. 458) 479 
Bos well r. Dunning (5 Harr. 231) 316 
I'. Green (1 Dutch. 390) 131, 134 



TABLE OF CASES. 



XIX 



Botifeur v. Weyman (1 McC. Ch. 15C) 

611, 512, 514 
Bottomley v. Nuttall (5 C. B. n. s 122) 

'Jo, 90 
Rousliner r. Black (83 Ky. 521) 303, y2'J 
Buuldin V. Page (24 Mo. 5y4) 165, 187, 413 
Boulter v. Peplow (9 C. B. 493) 255 

Bound V Lathrop (4 Conn. 38(3) 159, 164 

V. Freeth (9 B. & C 032) 105, 107 

Bourne -f. Wooldridge (10 B. Mon. 

4'.»2) 98 

Boussmaker, .Ex /var<e (13 Ves 71) 26 
Bovill V. Hammond (6 B. & C. 148, 

9 D & li. 186) 35, 55, 58, 248, 250, 203, 

205 
Bowas V. Pioneer Tow Line (2 Sawy. 

21) 06 

Bovvden v. Schatzell ( 1 Ball. Eq. 360) 

330, 444 
Bowen V. Argall (24 Wend. 496) 538, 545, 

546, 547 
V. Billings (13 Neb. 439, 14 N. W. 

152) 350, 

V Mead (1 Midi. 432) 

V. Kuthertord (OU III. 41) 

Bower v. Twadlin ( 1 Atk. 294) 
Bowers v. Still (49 Pa. 65) 
Bowie V. Maddox (29 Ga. 285) 103, 104 
Bowker v. Bradford (140 Mass. 521, 

5 N. E. 480) 24 

V. Burdekin (11 M. & W. 128) 154 

V. Smith (48 N. H. Ill) 

Bowler v. Huston (30 Gratt. 260) 
Bowman v. Bailey (20 S. C. 550) 

V. (10 Vt. 170) 

u. Spalding (2 S. W. 911) 231, 332 

Bowyer v. Anderson (2 Leigh 550) 35, 4-5, 

62, 63 
Bowzer v. Stoughton (119 111 

9 N. E. 208) 
Boyce v. Burcliard (21 Ga. 74) 

V. Coster (4 Strobh. Eq. 25) 

V. Owens (I Hill S. C. 8) 

V. Watson (3 J. J. Marsh, 498) 

Bovd V. Cann (10 Md. 118) 

— - l: Emerson (2 A. & E. 184) 

r. Mvnatt (4 Ala. 79) 

r. Ki'cketts (60 Miss. 62) 

r. Tliompson (25 Atl. 709) 

Boyden v. Boyden (29 N. H. 519) 



352 
172 

08 
143 

95 



336 

334 

363 

45 



47, 
248 
295 
337 
23 
103 
412 
148 
211,458 
69 
153, 155 
18 
Boyers i'. Elliott (7 Humph. 204) 361 

Boynton v. Page (13 Wend. 425) 199 

Boys V. Ancell (7 Scott 304) 223, 224 

Bozon r. Farlow (1 Mer. 459) 240, 241 
Brace i-. Taylor (2 Atk. 253) 517 

b: Washburn (43 Me. 504) 55 

Braches v. Anderson (14 Mo. 441) 74, 139 
Bracken v. Dillon (04 Ga. 243) 4, 427 

c. Kennedy (4 111. 558) 240, 268, 507, 

508 
Bracket v. Winslow (17 Mass. 153) 384 
Bradbury, Ex parte (4 Deac. 202) 484 

V. Barnes (19 Cal. 120) 355 

I'. Dickens (27 Beav. 53) 237 



V. Smith (21 Me. 117) 



545, 546 



Bradford v. Kimberly (3 Johns. Ch. 

431) 200, 384, 500 

V. Taylor (01 Tex. 508) 168 

Bradford Com. Banking Co. v. Cure 

(31 Ch. D. 324) 136 

Bradley v. Brigiiam (137 Mass 545) 527 

V. Chamberlin (16 Vt. 613) 212, 384, 

394, 443 

V. Ilarkness (26 Cal. 76) 128 

V. Holdsworth (3 M. & W. 422) 554 

V. White (10 Met. 303) 45 

Bradner >: Strang (89 N. Y. 299) 125 

Bradstreet ;•. Baer (41 Md. 9) 23 

Brady v. Calhoun (1 P. & W. 140) 35, 53, 

349 

V. Hill (1 Mo 315) 103 

Braithwaite v. Britain (1 Keen 200) 

444, 445, 482 
V Power (1 N. D. 455, 48 N. W. 

354) 105 

Bralev f. Goddard (49 Me. 115) t,0 

Brand v. Boulcott (3 B. & P. 235) 253 

Brandon v. Hubbard (4 J. B, Moore 

307) 36 

V. Nesbitt (6 T. U. 23) 26 

V. Kobinson (18 Ves. 429) 407 

Brandred v. Muzzy (1 Dutch. 268) 57 

Brandrum v. Wharton (1 B. & Aid. 

463) 157, 159 

Brannon v. Hursell (112 Mass. 63) 203 
Brasfield c. French (59 Miss. 632) 451 
Brasier v. Hudson (9 Sim. 1) 144 

Brassington v. Ault (2 Bing. 177) 273,498 
Braun's Appeal (105 Pa. 414) 222 

Bray v. Fromout (6 Madd. 5) 10, 128, 138, 

555 
Brazier v. Bryant (2 Dowl. Pr. 477) 420 
Brecher v. Fox (1 F. R. 273) 98 

Breckenbridge i-. Ormsby (1 J. J. 

Marsh 236) 16 

Breckinridge v. Shrieve (4 Dana 375) 82, 84 
Breen c. Richardson ((> Col. 605) 364 

Bremner i'. Chamberlayne (2 C. & K 

500) 
Brenan v. Prestsn (2 DeG. M. & G. 

813) 

Brenchley, Ex parte (2 Glyn & J. 127) 499 
Brennan v. Pardridge (67 Mich. 449, 

35 N. W. 85) 
Brent i-. Davis (9 Md. 217) 
Brett r. Beckwith (3 Jur. n. s. 31) 
Brettel v. Williams (4 Ex. 623) 
Brewer v. Browne (08 Ala. 210) 222. 306, 

361, 363 

V. Worthington (10 All. 329) 414 

V. Yorke (46 L. T. x. s. 289) 530 

Brewster v. Hammet (4 Conn. 540) 291, 

325, 344 

V. Hardemnn (Dud. Ga. 138) 100 

V. Mott (5 111. 378) 97, 99, 100, 173. 

179. 274 

V. Keel (74 la. 506, 38 N. W. 381) 99 

i: Wakefield (22 How. 118) 203 

Briar Hill Coal & Iron Co. v. Atlas 

Works (146 Pa. 290, 23 Atl. 326) 539, 549 



426 
298 



115 

78 
330 
186 



XX 



TABLE OF CASES. 



Briee's Case (1 Mer. 620) 387 

Brickhouse v. Hunter (4 Hen. & M. 

3(5o) 520 

Brickwood v. Miller (3 Meriv. 279) 468 
Bridge v. Grav (14 Pick. 55) 6y, 162, 104 

V. McCudough (27 Ala. 601) 331 

Brierly v. Cripps (7 C. & P. 709) 260, 204, 

265 
Briggs V. Vanderbilt (19 Barb. 222) 60 
Brigham, Ex parte (Cooke B L. 538) 

428 

V. Clark (100 Mass. 430) 55 

V Dana (29 Vt. 1) 51, 55, 200 

V. Eveletli (9 Mass. 538) 254, 263 

Bright V. liiitton (3 H. L C. 341) 52 

V. Rowland (3 How. Miss. 398) 225 

v. Sampson (20 Tex. 21) 145 

Brill V. Hoile (53 Wis. 537, 11 N. W. 

42) 414 

Brinley v. Knpfer (6 Pick. 179) 261, 265, 

522 
Brisban v Boyd (4 Paige 17) 163 

Briscoe i'. Anketell (28'Miss. 361) 161 
Bristow V. James (7 T. R 257) 469 

V. Tavlor (2 Stark. 50) 307 

IV Towers (6 T. R. 35) 26 

British N. America, Bank of r. Dcla- 

field (120 N. Y. 410, 27 N E. 797) 247 
Broad v. Joilyfe (Cro. Jac. 596) 401 

Broadbent,£'j://ar^e (I Mont &A. 635) 508 



]?roadus v. Evans (63 N. C. 633) 
Brock v. Bateman (25 Oh. St 609) 



97 
331, 

478 



Brockenbrough v. Hackley (6 Call 

51) ' 100 

Brockwav r. Burnap (16 Barb. 310) 45 
Brbda i-. Green wald (66 Ala. 538) 248 
Brooke v. Enderby (2 Br. & B. 70) 425 

V. Evans (5 Watts 190) 102 

V. Washington (8 Gratt. 248) 74, 350 

Brooks r. Martin (2 Wall. 70) 8, 193, 195 
Broom c. Broom (3 M. & K. 443) 350, 

364 
Broome, Ex parte (1 Rose 69) 11, 103, 277, 
. 455, 473, 499 
Brothrovd, In re (14 N. B. R. 323) 491 
Brown, 'Ex parte ( 1 Atk 225) 89, 92 
v. Agnew (6 W. & S. 235) 262, 266, 

268 
23, 168, 

38s 

r. Clark (14 Pa. 469) 381 

1-. ])e Tastet (Jac. 284) 10, 70, 128 

129, 438, 443, 466, 468, 501, 523 

r. Duncan (5 B. & C. 93) 8 

V. Duncanson (4 H. & McH. 350) 172 

r. Gordon (16 Beav. 302) 419 

I'. Grant (39 Minn. 404, 40 N. W. 

268) 104 

r. Hardcastle (63 Md. 484) 203 

V. Heathcote (1 Ves. 239) 137 

r. Hicks (24 F. R. 811) 60 

V. Higginbotham (5 Leigh 583) 45 

r. J.Tquette (94 Pa. 113) 53 

r. Jewett (18 N. H. 230) 23, 24, 389 



Chancellor (61 Tex. 437) 



Brown v. Lawrence (5 Conn. 397) 142 

V. Litton (1 P. Wms. 140) 194, 443, 

600 

v. (1 P. Wms. 224) 438 

V. Leonard (2 Chit. 120) 78, 403, 407 

V. McFarland (41 Pa. 129) 439 

17. Marsli (7 Vt. 327) 143 

V. Rains (53 la 81, 4 N. W. 867) 69, 

104 

V. Tapscott (6 M & W. 119) 57, 248, 

258, 264, 269, 507 

V. Turner (7 T. R. 630) 9 

V. Vidler (15 Ves 223, 2 Russ 

340) 443, 501 
f. Watson (66 Mich. 223, 33 

N. W. 493) 364 
V. (72 Tex. 216, 10 S. W. 

395) 60 

Brown's Appeal (89 Pa. 139) 201, 438. 

439, 526 
Browne v. Carr (7 Bing 508) 470 

V. Gibbins (5 Bro. P. C. 491) 101, 276 

Brownel v. Brownel (2 Bro. Ch 62) 515 
Srownell v. Steere (128 111. 209, 21 

N. E. 3) 522, 527 

Browning v. Marvin (22 Hun 547) 469 
Brownlee i'. Allen (21 Mo. 123) 63, 354 
Brownrigg v. Rae (5 Ex. 489) 133 

Brozel v. Poyntz (3 B. Mon. 178) 76 

Brubaker v. Robinson (3 Pen. & W. 

295) 
Bruen v. Marquand (17 Johns. 58) 



265 
152. 
307 
103 

65 



Brugman v. McGuire (32 Ark. 733) 
Brundred v. Muzzv (1 Dutch 268) 
Brunson v. Morgan (76 Ala. 593) 351, 367 

V. (84 Ala. 598, 4 So 589) 352 

Brutton v. Burton (1 Chit. 707) 151, 153, 

155 
Bry V. Cook (15 La. Ann. 493) 515 

Bryant r. Wardell (2 Ex. 479) 55 

Brvce v. Joynt (63 Cal. 375) 69, 164 

Bryden v. Taylor (2 H. & G. 400) 48 

Brydges v. BranfiU (12 Sim. 369) 116, 117 
Bryson v. Whitehead (1 Sim. & S. 74) 401 
Buchan v. Sumner (2 Barb. Cii. 165) 349, 
358, 361, 367,369 
Buchanan v. Curry (19 Johns. 137) 148, 



Buchoz V. Grandjean (1 Mich. 367) 
Buck V. Mosley (24 Miss. 170) 97, 98, 

r. Smith (29 Mich. 166) 

V. Winn (11 B. Mon. 320) 

Buck Stove Co. v. Johnson (7 Lea 

282) 
Bucki V. Cone (25 Fla. 1, 6 So. 160) 



149 
148 
274 

279 
362 

231 
125, 
338 



Buckingham v. Burgess (3 McLean 
364) 103, 104 

V. Hanna (20 Ind. 110) 127 

V. Ludlum (29 N. J. Eq. 345) 526 

V. (37 N. J. Eq. 137) 445 

Buckland r. Newsame (1 Taunt. 477) 146 
Buckley, Ex parte (14 M. & W. 469) 113, 

183 



TABLE OF CASES. 



XXI 



Buckley v. Bramhal (24 How. Pr. 455) 545, 

546 

V. Buckley (11 Barb. 43) 349, 354, 

358, 301 
Bucknal v. Roiston (Free. Ch. 285) 137 
Bucknam v. Barnuin (15 Conn. 67) 45, 53, 

164 
Buckner v. Lee (8 Ga. 285) 46, 114 

V. Kies (34 Mo. 357) 255 

Buell V. Cole (54 Barb. 353) 251 

Buffalo City Bank v. Howard (35 

N. Y. 500) 403 

Biiffum V. Buffum (49 Me. 108) 6, 3-50 
Biifkin v. Bovce (104 Ind. 53) 293 

Biifurd V. Nccly (2 Dev. Eq. 481) 
Biilfiiich u. Winclienbach (3 All. 161) 



391 
66. 
346 



Bulger f. Rosa (119 N. Y. 459, 24 N. E. 

8')3) 332 

Bulkley r. Dayton (14 Jolins. 387) 152 

u. Marks (15 Abb. Pr. 454) 539, 544, 

545, 546 
Bull V. Coe (77 Cal. 54, 18 Pac. 808) 252 

r. Scliuberth (2 Md. 38) 60 

BuUard v. Smith (139 Mass. 492, 2 

N. E. 86) 55 

Bullen v. Sharp (L. R. 1 C P. 86) 42, 61, 

129 

V. (18 C. B. N. s. 614) 129 

Bullock i: Boyd (1 Hoff. Cli. 294) 515 

V. (2 Edw. Ch. 293) 515 

V. Crockett (3 Giff. 507) 529 

Bumage v. Prosser (4 B. & C. 247) 320 
Bumpass v. Webb (1 Stew. 19) 252 

Bundy v. Bruce (61 Vt. 619, 17 AtL 

796) 69 
f;. Youmans (44 Mich. 376, 6 

N. \V. 851) 438 

Bunn i: Grey (4 East 190) 401 

Bunnel v. Taintor (4 Conn. 568) 7 

Burbauk v. Wilev (79 N. C. 501) 134, 231 
Burden v. Burden (I Ves & B. 170) 200, 
201. 384, 4.36, 439, 448 
Burdick i;. Green (15 Johns. 247) 483 

Burdon n. Dean (2 Ves. Jr. 607) 479 

Burgan v. Lyell (2 Mich. 102) 406 

Burgess, In re (83 Me. 339, 22 Atl. 

222) 254 

V. Atkins (5 Blackf. 337) 338 

r. Badger (124 111. 288, 14 N. E. 

850) 201, 222 

v. Burgess (3 DeG. M. & G. 896) 242, 

243 

v. Lane (3 Me. 65) 70 

r. Merrill (4 Taunt. 469) 22 

Burgue '•. Finnin (3 Stark. 53) 69 

Burk '•. McClain (1 H. & McH. 233) 468 
Burke V. Fuller (41 La. Ann. 740, 6 

So. 557) 512, 522 

r. Noble (48 Pa. 168) 144 

c. Roper (79 Ala. 138) 52 

r. Winkle (2 S. & R. 189) 23 

Burleigh v. Parton (21 Te.x 585) 173, 178 

V. Stott (8 B & C. 36) 157 

Burley «-. Harris (8 N. H. 235) 270, 271, 309 



Burmester v. Norris (6 Ex. 706) 82 

Burn, Ex parte (1 Jac. & \V. 378) 4W, 

493 

V. Burn (3 Ves. 578) 150, 151 

V. Morris (3 Cai. 54) 313, 317 

Burnell v. Hunt (5 Jur. 650) 5, 55 

r. Minot (4 J. B. Moo. 340) 254,265. 

267, 268 
Burnes v. Penned (2 H. L. C. 497) obo 
Burnett v. Eufaula Ins. Co. (46 Ala. 
11) 236 

V. Snyder (76 N. Y. 344, 81 N. 

Y. 550) 104, 128 

Buruham v. Whittier (5 N. H. 334) 169, 

311 
Burnhisel v. Firman (22 Wall. 170) 203 
Burns v. Harris (67 N. C. 140) 491 

r. McKenzie (23 Cal. 101) ■ 162 

V. Nottingham (60 III. 531) 261, 264 

v. Rowlands (40 Barb. 368) 77 

Burnside y. Merrick (4 Met. 537) 349,356, 
361, .364, 436 
Burr V. De La Vergne ( 102 N. Y. 415, 
7 N. E. 366) 198 

r. Williams (20 Ark. 171) 160 

J Burrell, Ex jxirte (Cooke B. L. 503) 497, 

499 
Burson v. Kincaid (3 Pen. & W. 57) 143 
Burt V. Lathrop (52 Mich. 106, 17 N. 

W. 716) 52 

Burton, Ex parte (1 G. & J. 207) 406, 494, 

495 

V. Baum (32 Kas. 641, 5 Pac. 3) 335 

V. Goodspeed (69 111 237) 46 

V. Issitt (5 B. & Aid 267) 145, 382 
196, 198, 
286, 287 
327, 328. 
329, 339 

Burwell v. Mandeville (2 How. 560) 432. 

447, 451 
Bury V. Allen (1 Coll. 589) 530 

Busby V. Chenault (13 B. Mon. 554) 446 
Bush y. Clark (127 Mass. HI) 438 

V. Crawford (9 Phila. 892) 170 

V. Linthicum (-59 Md. 344) 17 

Bushell, Ex parte (8 Jur. 937) 180 

Butchart r. Dresser (10 Hare 45-3, 
4 De G. M. & G. 542) 295, 376, 378, 
382, 383, 434 

V. (4 Russ. 430) 376 

Butcher, Ex parte (13 Ch. D 465) 442 

V. Forman (6 Hill 583) 25-3, 471,499 

Burler v. Amer. Toy Co. (46 Conn. 
136) 27 

f. Burleson (16 Vt. 176) 441 

V. Stocking (8 N. Y. 408) 185 

Butlin, Er parte (Cooke B. L. 257) 487 
Butte Hardware Co. r Wallace (59 

Conn. 3.36, 22 Atl. 330) 69 

Butterfield v. Hartshorn (7 N. H. 345) 

482 

V. Hensley (2 Gray 226) 77 

Button V. Hampson (Wright 93) 150 

Butts V. Dean (2 Met. 76) 483 



V. Wookey (6 Madd. 367) 

Burtus V. Tisdall (4 Barb. 571) 



XXll 



TABLE OF CASES. 



Buxton V. Edwards (134 Mass. 567) 160, 

162. 383 

V. Lister (3 Atk. 383) 209, 279 

Buzard v. First Nat. Bank (67 Tex. 
83, 2 S. W. 54) 60 

v. Jolly (6 S. W. 422) 69 

Bybee v. Hawkett ( 12 V. R. 649) 13, 128 
Byers v. Dobie (1 II. Bl. 2o6) 469 

V. Van Ueusen (5 Wend. 268) 462 

Byrd v. Fox (8 Mo. 574) 11, 210, 265 



Cabell V. Vaughan (1 Sannd. 291) 316, 320 
Caddeck v. Simpson (2 De G. & J. 52) 7 
Cadwallader v. Blair ( 18 la. 420) 9U. 427 

V. Kroesen (22 Md. 200) 98, 147 

Cadv 1-. Kyle (47 Mo. 340) 165 

'v. Shepherd (11 Pick. 400) 150, 151, 

162 
Calder v. Rutherford (1 Br. & B. 302, 

7 Moo. 158) 444 

Calder & H. Nav. Co v. Pilling (14 

M. & W. 200) 551 

Caldicott V. Griffiths (8 Ex. 898) 52, 277 
Caldwell v. Bloomington Mfg. Co. 
(17 Neb. 489, 23 N. W. 336) 332 

v. Gregory (1 Price 119) 468 

V. (2 Hose 149) 494 

('. Lawrence (20 Ga. 94) 161 

V. Lieber (7 Paige 483) 36, 198, 200, 

201,216,217,384,520 

V. Miller (127 Pa. 442, 17 Atl. 

983) 44, 46 

V. Scott (54 N. H. 414) 98, 332 

V. Siffourney (19 Conn. 37) 159 

r. Sitliens (5 Blackf. 99) 111 

V. Stileman (1 Rawle 212) 380 

Calkins v. Smith (48 N. Y. 614) 171, 180 
Callender v. Robinson (96 Pa. 454) 74 

Calhimb v. Reed (24 N. Y, 505) 358 

Calvert v. Marlow (6 Ala. 342) 260 

V. Miller (94 N. C. 600) 435 

Calvit r. Markham (3 How. Miss. 

,343) 270, 514 

Cambefort v. Chapman (19 Q. B. D. 

229) 334 

Camblat v. Tupery (2 La. Ann. 10) 280, 509 
Cambridge v. Hobart (10 Pick. 232) 159 
Cameron v. Blackman (39 Mich. 108) 140 

V. Havemeyer (25 Abb. N. C. 

438) 567 

Cammack v. Johnson (1 Green Ch. 

163 ) 1 1 5, 29 1 , 330, 344, 346, 444, 498 
Camp V. Gant {21 Conn. 41) 476 

Campanari v. Woodburn (15 C. B. 

400) 387 

Campbell v. Bowen (49 Ga. 417) 189 

V. Pol. Coal & Iron Co. (9 Col. 

60, lOPac.248) 113 

V. Coquard (16 Mo. App. 552) 527 

v. Dent (54 Mo. 325) 57 

r. Flovd (25 Atl. 10:«) 160, 378, 418 

V. Hastings (29 Ark. 512) 68, 463 



Campbell v. Mathews (6 Wend. 551; 143 

V. Mullett (2 Swanst. 551) 230, R07, 

327, 328, 338, 4S6, 468, 490, 500, 501 
V. Pence (118 Ind. 313, 20 N. E. 

840) 170 

K. Stewart (34 III. 151) 86 

Canada r. Barksdale (76 Va. 899) 35, 59 
Canadian Bank v. Wilson (36 U. C. 

Q. B. 9) 171 

Candler v. Candler (Jac. 225) 15, 241 

(,. (0 Madd. 141) 55 

Canfield r. Hard (6 Conn. 180) 36,432,447 
Cann v. Cann (1 P. Wms. 727) 511 

Cannan v. Bryce (3 B. & Aid. 179) 9 

Cannon v. Alsbury(l A. K. Marsh. 76) 21 

V. Lindsey (85 Ala. 198, 3 Ho. 

676) 97, 347 

Cape Sable Co.'s Case (3 Bland 606) 871, 

375, 459 
Capen v. Alden (5 Met. 268) 425 

V. Barrows (1 Gray 376) 257, 258, 261 

Capp V. Lacey (35 Conn. 463) 542 

Garden v. General Cemetery Co. (5 

Bing. N. C. 253) 553 

Carev v. Burruss (20 W. Va. 571) 23 

Cargiil r'. Corby (15 Mo. 425) 78, 82 

Carico v. Moore (29 N. E. 928) 110 

Carlen v. Drurv (1 Ves. & B. 154) 267, 
457, 549, 553 
Carleton v. Jenness (42 Mich. 110, 3 

N. W. 284) 168 

Carlisle r. Mulhern (19 Mo. 56) 364, 366 
Carlock v. Cagnacci (88 Cal. 600, 26 

Pac. 597) 228 

Carlton v. Coffin (28 Vt, 504) 159 

V. Cummins (51 Ind. 478) 529, 530 

V. Ludlow Woolen Mill (27 Vt. 

496) 161 

V. (28 Vt. 504) 160 

Carmichael v. Greer (55 Ga. 116) 103, 463 

V. Latimer (11 R. I. 395) 242 

Carpenter, Ex parte (1 Mont. & McA.l) 489 
Camp (39 La. Ann. 1024, 3 So. 



269) 



519 
42 

247 

225 

7 

263, 264 



V. Greenop (74 Mich. 664 

N. W. 276) 

V. Lockhart (1 Ind. 434) 

Carr v. Leavitt (54 Mich. 540) 

V. Smith (5 Q. B. 128) 

Carrie v. Clovcrdale B. & C. Co. (90 

Cal. 84, 27 Pac. 58) 132, 231 

Carrier v. Cameron (31 Mich. 373) 171 
Carrington v. Cantillon (Bunb. 107) 14i\ 
Carroll v. Blencow (4 Esp. 27) 2ii 

V. Gayarre (15 La. Ann. 671) 160 

V. Little (73 Wis. 52, 40 N. W. 

582) 529 

Carson v. Byers (67 la. 606, 25 N. W. 

826) 182 

V. Gillitt (50 N. W. 710) 69 

Carter, Ex parte (2 Glvn & J.233) 473, 499 

V. Flexner (17 S." W. 851) 363 

V. Galloway (36 La. Ann. 473) 333 

r. Home (1 Eq. Ca. Abr. "Ac- 
count" 13) 196 



TABLE OF CASES. 



XXlll 



Carter v. Roland (53 Tex. 540) 128, 389 

V. Soiithall (:'> M. & W. 128) 164 

V. Wluilley (1 li. & Ad. 11) 104, 403, 

40 J, 410 
Carver v Dows (40 III 374) 'JO 

Carver (iiii & Macli. Co. v. Bannon (85 

Tenn 712, 4 S. W. 831) 98, 332 

Carvick /;. Vickery (Doug. 653, Holt 

•207, March 61) 38, 48, 168, 532 

Cary v. Williams (I Duer 607) 303 

Casey Ai)eel(i Paige .303) 430 

V. Beauregard (00 U. 8. 110) 331, 

332, 442 

r. Maxey (6 Cal. 276) 255 

/'. Seger (4 Wash. St. 492, 30 Pao. 

616) 7, 352 

Casebolt o. Ackerman (46 N. J. 1) 160 
Casey v. Brusli (2 Caines 293) 262, 51!) 

V. Carver (41 III. 22-5) 07, 100 

Casli V. Tozer (1 W. & 8. 519) 1-55, 150 
Cassels v. Stewart (0 App. Cas. 64) 13J, 

193, 204 
Cassidy v. Hall (97 N. Y. 159) 61 

Castell, Ex parte (2 Glyn & J. 124) 474. 

4'.)9 
Castle, Ex parte (3 Mopt. D. & D. 117) 493 
Caswell u. Cooper (18 III. 532) 253, 255 
V. Hazard (121 N. Y. 484. 24 

N. E. 707) 238,243 

Cater v. Everleigli (4 Des. 19) 363 

Catron v. Shepherd (8 Seb. 308) 204 

Catskill Bank r. Gray (14 Barb. 479) 28 

u. Messenger (0 (^ow. 37) 143 

V. Stall (15 Wend. 304) 180, 185 

Catt r. Howard (3 Stark. 5) 428 

Caudell r. Shaw (4 T. R. 361) 22 

Cavanaugh v. Riley (19 S. W 745) 65 

Cavitt V. .James (39 Tex. 189) 

Cecil ('. Hicks (29 Gratt. 1) 

Central Bank v. Walker (6G N. Y 

424) 
Central Nat. B;ink v Frye (148 Mass. 

498, 20 i\. E. 325) 170, 405 

Central Trust Co. v. Ohio Central 

R. R. (36 F. R. 520) 559 

Chadsev v. Harris (11 111. 151) 262, 263, 

264 
Chadwick v. Clarke (1 C. B. 700) 246, 5-53 
(':hafEe r. Ludeling (27 La. Ann. 607) 50 
Chaffraix v. Lafitte (30 La. Ann. 631) 46, 

47 

r. Price (29 La. Ann. 176) 60 

Chalfant v. Grant (3 Lea 118) 351, 366 
Chalmers v. Bradlev (1 .lac. & W.51) 514 
Chamberlain v. Dow (10 Mich. 319) 3H7 

V. M.idden (7 Rich. 395) 76 

r. Walker (10 All. 429) 252, 253 

Chambers v. Clearwater (1 Abb. App. 

341) 119 

V. Goldwin (9 Ves. 2.54) 514, 515 

V. Howell (11 Beav. 6, 12 Jur. 

905) 437 

Champion v. Bostwick (18 Wend. 175) 46, 

55, 66 
V. Munford (Kirby 172) 169 



381 
203 



50 



Champion v. Rigby (1 Russ. &M. 5.39) 514 
Champlin v. Tilley (3 Day 307) 164 

Chandler, Ex parte (9 Ves. 35) 478, 479 

c. Brainard (14 Pick. 285) 48 

V. Herrick (19 Johna. 129) 144 

V. Jessup (31 N. E. 1109) 352 

V. Parkes (3 Plsp. 76) 22 

Chaimel ('. Fassit (16 Ohio 166) 10, 128 
Cliannell v. Ditchburn (5 M. & W. 

494) 157 

Chapin v. Coleman (11 Pick 331) 69 

Chapline «. Conant (3 W. Va. 507) 46, 57, 

62 
Chapman v. Beach (1 Jac. & W. 594) 455, 

456, 510 

V. Koops (3 B & P. 289) 250, 290, 

324, 33», 475 

r. Lipscomb (18 S. C. 222) . 53 

V. Thomas (4 Keves 216) 376 

V. Wilson (1 Rob. Va. 267) 5, 1U7 

Chappedelaine v. Dechenaux (4 

Cranch 306) 511,515 

Ghappel ;;. Brockway (21 Wend. 157) 401 
Chappell r. Allen (38 Miss. 213) 378 

Chappie «. Cadell (Jac. 537) 221, 510 

Charlton v. Poulter (19 Ves. 148) 2»5, 

286, 292 
v. Sloan (76 la. 288, 41 N W. 

303) 195 

Charman v. Henshaw (15 Gray 293) 115 
Charrington v. Laing (6 Bing. 242) 224 
Chase r. Barrett (4 Paige 14«) 55, 60, 63 

V. Bean (58 N. H. 183) 144 

V. Buhl Iron Works (55 Mich. 

139, 20 N. W. 827) 98 

V. Garvin (19 Me. 211) 264, 266 

v. Stevens (19 N. H. 465) 48 

Chavany v. Van Sommer (1 Swanst. 

512) 210, 285, 291, 371, 391, 395 

Chazournes v. Edwards (,3 Pick. 5) 96, 100, 
116, 172, 173 
Cheap V. Cramond (4 B. & Aid. 663) 35. 
40,41, .55, 58, 143, 164 
Cheddick v. Marsh (1 N. J. 463) 225 

Cheeny r. Clark (3 Vt. 431) 52, 82, 252 
Cheeseman v. Sturges (9 Bosw. 246) 131 
Chenango, Bank of, r. Osgood (4 

Wend. 607) 144 

('. Root (4 Cow. 126) 165 

Cheney r. Newberry (67 Cal. 126, 7 

Pac. 445) 228 

Chenowith i-. Chamberlin (6 B. Mon. 

60) 184 

Cheshire v. Barrett (4 McC. 241) 18 

Ches-son v. Chesson (8 Ired. Eq. 141) 512 
Chester r. Dickerson (54 N. Y. 1) 7, 35, 3t)7 

V. (52 Barb. 349) 116, 119 

Chesterfield v. Janssen (2 Ves. Sen. 

155) 514 

Chevalier, Ex parte (1 Mont. & A. 

345) 487, 496 

Chicago Gas Light & Coke Co. r. Peo- 
ple's Gas Light & Coke Co. (121 111. 

530, 13 N. E. 169) 567 

Chidney v. Porter (21 Pa. 390) 107 



XXIV 



TABLE OF CASES. 



CJiild V. Hudson's Bay Co. (2 P. Wms. 

309) 551 

Chilton V. L. & C. Ry. (IG M. & W. 

212) 551 

Chippendale v. Thurston (4 C. & P. 

9«, 1 M. & M. 411) 158 

V. Tomlinson (Cooke B. L. 431) 441 

Chissum v. Dewes (5 Kiiss. 29) 240 

Ciiittenden v. W'itheck (50 Mich. 401, 

15 N. \V. 526) 204, 236 

Chitty V. Naisli (2 Dowl. Pr. 511) 420 

Christ V. Firestone (11 Atl. 395) 131 

Christian v. Ellis (1 Gratt. 396) 508 

V. Lenhouse (19 Vt-s. 157) 298 

Christie, Ex parte (8 Jur. 919) 183 

I'. Bishop (1 Barh. Ch. 105) 69 

Chuck, Ex parte (8 Buig. 469) 30, 55, 65, 

494 

Church V. Knox (2 Conn. 514) 137, 291, 

325, 3.37, 345, 346, 446, 475 

V. Sparrow (5 Wetid. 223) 74, 89, 143 

Churton v. Douglas (Johns. 174) 236,237 
Cincinnati, H. & D. R. R. v. Spratt 

(2 Duv. 4) 65 

Cirkel v. Croswell (36 Minn. 323, 

31 N. W. 513) 103 

Citizens' Ins. Co. v. Kountz Line (4 

Woods 268) 65 

V. Ligon (59 Miss 305) 65, 168, 442, 

452 

V. Wallis (23 Md. 182) 479 

Citizens' Nat. Bank v. Hine (49 Conn. 

236) 49, 427 
,: Johnson (79 la. 290, 44 N. W. 

551) 134, 146 
V. Williams (128 N. Y. 77, 28 

N. E. 33) 331 

City Bank r. Dearborn (20 N. Y 244) 408 

V. McChesnev(20N. Y.240) 408,411 

Claflin c. Behr (89' Ala. 503, 8 So. 45) 476. 

487 

I'. Bennett (51 F. R. 693) 97, 512 

V. Ostrom (54 N. Y. 581) 95, 96 

Clagett r. Hall (9 G. & J. 81) 516 

Claggett r. Kilbourne (1 Black 346) 35 
Claiborne v. Creditors (18 La. 501) 456, 

462 
Clancarty v. Latouche (1 Ball & B. 

428) 518 

Claiicey v. Onondaga Fine Salt Mfg. 

Co. (62 Barb. 395) 568 

Clancy v. Craine (2 Dev. Eq. 363) 7 

Clap, In re (2 Low. 226) 95 

Clapp V. Rogers (12 N. Y. 283) 405, 406, 

408 
Clark, In re (3 D. & R. 260) 15 

V. Allee (3 Harr. 80) 344 

'•. Barnes (72 la. 563, 34 N. W. 

419) 61, 62 

V. Clement (6 T. R. 525) 144 

V. Cullen (9 Q. B. D. 355) 333 

o. Gushing (52 Cal. 617) 344 

V. Dibble (16 Wend. 601) 260, 265 

V. Fletcher (96 Pa. 416) 32, 409 

V. Flint (22 Pick. 231) 209 



Clark V. Hooper (10 Bing. 480) 158 

V. Houghton (12 Gray 38) 77 

V. Howe (23 Me. 560) 312, 443 

V. Huffaker (26 Mo. 264) 163 

V. Johnson (90 Pa. 442) 140 

V. Jones (87 Ala. 474, 6 So. 362) 50 

!•. Leach (8 L. T. n. s. 40) 213 

V. Miller (4 Wend. 628) 273 

V. Reid (11 Pick. 446) 48 

V. Sidway (142 U. S. 682) 59 

V. Sigourney (17 Conn. 511) 159 

V. Smith (52 Vt. 529) 60 

V. Taylor (68 Ala. 453) 87, 89, 347 

V. Van Reimsdyk (9 Cranch 153) 69 

V. Wilson (19 Pa. 414) 136 

V. Worden (10 Neb. 87) 527 

Clarke, Ex parte (1 De Gex 153) 488 

V. Hogeman (13 W. Va. 718) 131 

r. Imperial Gas Co. (7 Bing. 95, 

4 B. & Ad. 315) 555 
V. McAuliffe (81 Wis. 104, 51 

N. W. 83) 7 
V. Mills (36 Kas. 393, 13 Pac. 

569) 249 

V. Richards (1 Y. & C. 351) 36, 230 

V. Slate Valley R. R. (136 Pa. 

408, 20 Atl. 562) 192 

V. Tipping (9 Beav. 282) 515 

V. Wallace (1 N. D. 404, 48 N. W. 

339) 83 

Clarke's Appeal (107 Pa. 436) 254 

Clarkson, Ex parte (4 Deac. & Ch. 56) 

494 

V. Carter (3 Cow. 84) 273, 498 

Clay, Ex parte (6 Ves. 833) 

V. Cottrell (18 Pa. 408) 

V. Field (34 F. R. 375) 

V. Freeman (118 U. S. 97) 



329, 478, 491 

88, 97, 172 

363 

433, 435, 

439 

69 

322 

132 



V. Lanslow (1 M. & M. 45) 

V. Rufford (8 Hare 281) 

Clayton v. Hardy (27 Mo. 536) 
Clayton's Case (1 Mer. 572) 123,421,425, 

426, 522 
Cleather v. Twisden (28 Ch. D. 340) 121 
Clegg V. Fishwick (1 McN. & G. 294) 204, 

300, 383 

V. Houston (1 Phila. 352) 491 

Cleghorn v. Ins. Bank of Columbus 

(9 Ga. 319) 327 

Clement v. British America Assur. 

Co. (141 Mass. 298, 5 N. E. 847) 539 

V. Brush (3 Johns. Cas. 180) 91, 92, 

150, 154 
V. Clement (69 Wis. 599, 35 N. 

W. 17) 160, 403 

V. Ditterline (11 S. W. 658) 202, 508 

V. Foster (3 Ired. Eq. 213) 510 

V. Hadlock (13 N. H. 185) 4.5 

Clements v. Hall (2 De G. & J. 173) 204, 



V. Jessup (36 N. J. Eq. 569) 56, 

I'. Norris (8 Ch. D. 129) 

Clemontson v. Blessing (11 Ex. 135) 



383 
332, 
344 
192 
26 



TABLE OF CASES. 



XXV 



Cleveland v. Battle (68 Tex. Ill, 3 S. 

VV. 681) 480 

0. Woodword (15 Vt. SO'i) 272 

Cleveland Paj)C'r Co. v. Courier Co. 

(()7 Mich. 152, 34 N. W. 65G) 28 

Clifford V. Brooke (13 Ves. 131) 277 

Clift V. Moses (112 N. Y. 426, 20 N. E. 

392) 98 

Clifton V. Howard (89 Mo. 192, 1 S. 

VV. 2(3) 46, 53 

Clough V. Radcliffe (1 l)e G. & S. 164) 450, 

402 
Clowes, Ex parte (2 Bro. C. C. 595) 428 

V. Hawley (12 Johns. 487) 305 

Coakley v. Weil (47 Md. 277) 132 
Coate V. Williams (9 C. B. 481) 56 
Coates V. Coates (6 Madd. 287) 217, 287 
Coats V. Ilolbrook (2 Siuidf. Cli. 580) 244 
Cobb V. Abbot (14 I'ick. 289) 06, 124 
i;. Cole (44 Minn. 278, 46 N. W. 

804) 512 

V. 111. Cent. R. R. (38 la. 601) 107 

V. New Enjfland Ins. Co. (0 

Grav 192) 148 

Cobham, Ex parte (1 Bro. Ch. 576) 496 
Coiihran v. Anderson Co. Bank (83 

Ky. 30) 115 
V. Bartle (91 Mo. 636, 3 S. W. 

854) 52 

V. Perry (8 W. & S. 202) 11, 130, 

391 
Cochrane v. Allen (58 N. H. 250) 260 

Cock V. Bailey (146 Pa. 328, 23 Atl. 

370) 538 
Cockburn v. Thompson (16 Ves. 321) 553 
Cocke V. Branch Bank (3 Ala. 175) 82, 84 
17. Bank of Tennessee (6 Humph. 

51) 105,187 

Cockerell v. Aucompte (2 C. B. n. 8. 

410) 62 

V. Cholmeley (1 Russ. & M. 425) 514 

Cocks I'. Nash (9 Binjj. 341) 143 

Codding, In re (9 F. R. 849) 359, 300 

Coddington v. Hunt (6 Hill 595) 400 

V. Idell (29 N. J. Eq. 504) 201 

V. (30 N. J. Eq 540) 527 

Coder V. Huling (27 Pa. 84) 309 

Codman v. Rodgers (10 Pick. 112) 518 
Coffee u. Brian (10 J. B. Moo. 341, 3 

Bing. 54) 255, 256, 264 

Coffin r. Day (34 F. R. 687) 332 

V. Jenkins (3 Story 108) 61 

Coffin's Appeal (106 Pa. 280) 542 

Cofton v. Horner (5 Price 537) 291 

Coggswell V. Davis (05 Wis. 191, 26 

N. VV. 557) 405 

Cogswell V. Wilson (11 Ore. 371, 4 

Pac. 1130) 46, 51 

V. (17 Ore. 31, 21 Pac 388) 344 

Cohen •-. Gibbs (1 Hill S. C. 206) 465 

V. Hannam (5 Taunt. 101) 318, 319 

V. N. Y. Ins. Co. (50 N. Y. 610) 26 

Coit V. Tracy (9 Conn. 1) 159 

Colbeck, Li vp (Buck 48) 40, 65 

Colburn v. Phillips (13 Gray 64) 317 



Cole V. Albers (1 Gill 412) 490 

V. Pennell (2 Rand. 174) 22 

V. Pennoyer (14 111. 158) 17 

V. Reynolds (18 N. Y. 74) 307 

c. Sackett (1 Hill 516) 94, 483 

V. Terry (2 Dev. & B. 252) 304 

Coleman v. Coleman (78 Ind. 344) 50 

V. (12 Rich. 183) 254 

V. Darlmg (00 Wis. 155, 28 N. W. 

367) 

V. Fobes (22 Pa. 156) 

V. Pearce (26 Minn. 123, 1 N. W. 

840) 125 

Coles c. Coles (15 Johns. 159) 349, 367 

V. Gurney (1 Madd. 187) 145 

Collamer v. Foster (26 Vt. 754) 252, 255 
Collender v. Plielan (79 N. Y. 366) 527 
Coller V. Porter (88 Mich. 549, 50 

N. W. 658) 
Colley V. Smith (2 Moo. & R. 96) 
Collier v. Hanna (71 Md. 253, 17 Atl. 

390) 

V. Leech (29 Pa. 404) 

V. McCall (84 Ala. 190, 4 So. 

307) 
Collingwood v. Berkeley (15 C. B. n. s 

145) 
Collins V. Barker (1893, 1 Ch. 578) 



135 
160 



165 



99 
248 

480 
92 

121 



103 
293 
352 
143 
361, 362 
300 



V. Decker (70 Me. 23) 

V. Prosser (1 B. & C. 682) 

V. Warren (29 xMo. 230) 

V. Young (1 Macq. 385) 

CoUins's Appeal (107 Pa. 590) 
CoUner v. Greig (137 Pa. 606, 20 Atl. 

938) 
Collumb V. Read (24 N. Y. 505) 
Coliver V. Collyer (38 Pa. 257) 
Cohmghi v. Bluck (8 C. & P. 464) 377, 388 
Colt V. WooUaston (2 P. Wms. 154) 277, 

455 
Colton V. Stanford (82 Cal. 351, 23 

Pac. 16) 
Columbia Land & Cattle Co. v. Daly 

(46 Kas. 504, 26 Pac. 1042) 
Colwell V. Britton (59 Mich. 350, 26 

N. W. 538) 

V. Lawrence (38 Barb. 643) 

V. Weybosset Nat. Bank (16 R. I. 

288, 15 Atl. 80, 17 Atl. 913) 182, 347, 
475, 476, 480 
Combs V. Shrewsbury Ins. Co. (34 

N. J. Eq. 403) 235 

Commerce, Bank of, v. Meader (40 

Minn. 325, 41 N. W. 1043) 87, 89, 163 
Commercial Bank v. Lewis (l3 Sm. & 

M. 226) 168, 180 

V. Mitchell (58 Cal. 42) 331 

V. Warren (15 N. Y. 577) 173, 187 

V. Wilkins (9 Me. 28) 137, 320, 325, 

327, 339, 344, 346, 500 
Com. V. Bennett (118 Mass. 443) 57 

Commonwealth, Bank of, v. Law (127 

Mass. 72) 99, 187 

V. Mudgett (44 N. Y. 514) 18? 

V. (45 Barb. 663) 411 



231 

350 
351 
505 



37 

543 

46 
469 



XXVI 



TABLE OF CASES. 



Compton V. Greer (2 Dev. Ch. 93) 615 
Coinstock V. Smitli (23 Me. 302) 483 

Conant v. Frary (19 lad. 530) 333, 3G5, 

360 
Condrey v. Gilliam (60 Mo. 86) 305 

Conely v. Wood (73 Mich. 203, 41 

N. \V. 259) 83 

Conery v. Hays (19 La. Aun. 325) 103 
Congdon v. Morgan ( 13 S. C. 190) 167 
Conldin v. Barton (43 Barb. 435) 60 

Conkiing r. Washington University 

(2 Md. Ch. 497) 61 

Conley v. Chapman (74 Ga. 700) 334 

Connally v. Lyons (82 Tex. 064) 562 

Connecticut River Bank v. Frencii (6 

All. 313) 170 

Connelly v. Cheevers (16 La. 130) 444 
Conner v. Abbott (35 Ark. 365) 50 

Connolly v. Davidson (15 Minn. 519) 66 
Conrad V. Buck (21 W. Va. 396) 160, 168, 

383, 893 
Conro V. Port Henry Iron Co. (12 

Barb. 54) 405, 407 

Consequa v. Fanning (3 Johns. Ch. 

587, 17 Johns. 511) 515 

Const V. Harris (T. & R. 496) 188, 191, 

211, 294, 295, 29(5, 518 

Contee v. Dawson (2 Bland 264) 219, 516 

Continental Nat. Bank v. Strauss (32 

N. E. 1066) 636, 540 

Converse v. Norwich & N. Y. Tr. Co. 

(33 Conn. 166) 65 

V. 8hanibaugh (4 Neb. 376) 69 

Conwell V. Sandidge (8 Dana 278) 137, 

234, 326, 391, 443, 500, 531 

Cook, Ex parte (2 P. Wnis. 500) 329, 479, 

491 

, (8 Ves. 353) 

, (Mont. 228) 

V. Beech (10 Humph. 412) 



467 
474, 499 
312, 313, 

319 
5 

164 
439, 443, 



^ V. Carpenter (34 Vt. 121) 

V. Castner (9 Cush. 266) 

V. Collingridge (Jao. 607) 

467, 504, 509, 514, 523, 524, 531 

V. Fowler (L R. 7 H. L. 27) 203 

V. Jenkins (35 Ga. 113) 379 

V. Penrhyn Slate Co. (36 Oh. St. 

136) 104, 409 

V. Rogers (3 F. R. 69) 451 

Cooke V. Bachellor (3 B. & P. 150) 320 

V. Seeley (2 Ex. 746) 91, 312, 316 

Cookingham v. Lasher (2 Keyes454) 272 

y. (38 Barb. 656) 337 

Cookson V. Cookson (8 Sim. 529) 357, 

467, 509 
Coombs V. Boswell (1 Dana 473) 385 

Coomer v. Bromley (5 De G. & S. 

532) 116 

Coons V. Renick (11 Tex. 134) 146 

Coope V. Bowles (42 Barb. 87) 132, 135 

V. Eyre (1 H. Bl. 37) 34, 53, 54, 7'-, 

89, 532 
Cooper, Ex parte (1 Mont. D. & D. 

358) 494 



119 

217 

402 
476 



Cooper V. Henderson (6 Binn. 189) 465 

V. McClarkan (22 Pa. 80) 180, 187 

V. Prichard (11 Q. B. D. 351) 

V. Watlinglon (2 Chit. 451, 3 

Doug. 413) 
r. Watson (3 Doug. 443, 2 Chit. 

451) 
Cope's Appeal (39 Pa. 284) 
Copeland, Ex parte (2 Mont. & A. 

177, 3 1). & Ch. 199) 133 

Coppard r. Page (For. 1) 60 

Coover's Appeal (29 Pa. 9) 331, 345 

Corbett, In re (5 Sawy. 206) 335 

V. Poelnitz (1 T. R. 5) 22 

Corbin r. McChesney (26 111. 231) 99 

Corey v. Cad well (86 JNlich. 570, 49 

N. W. 611) 35,46,47,51,58 

V. Perry (67 Me. 140) 470 

Cork & B. R. R. v. Cazenove (11 Q. B. 

935) 20 

Cornells v. Stanhope (14 R. I. 97) 98, 308 
Cornhauser v. Roberts (75 AVis. 554, 

44 N. W. 744) 68, 103 

Cornwall v. Cornwall (6 Bush 369) 360 

V. Hoyt (7 Conn. 420) 23 

Corpe V. Overton (10 Bing. 252) 17 

Corps V. Robinson (2 Wash. C. C. 

383) 164 

Corwin v. Suydam (24 Oh. St. 210) 87 
Cosio V. De Bernales (R. & M. 102) 310 

V. (1 C. & P. 266) 22. 24 

Coslake v. Till (1 Russ. 376) 240, 441 

Costeker v. Horrox (3 Y. & C. 530) 517 

Coster V. Clarke (3 Edw. Ch. 238) 349, 

352, 361, 362 

V. Thomason (19 Ala. 717) 187 

Cothay v. Fennell (10 B. & C. 671) 272, 

317, 318, 498 

Cothran v. Knox (13 S. C. 496) 201 

V. Marmaduke (00 Tex. 370) 46, 60 

Cottle V. Leitch (35 Cal. 434) 455 

Cotton V. Bettner (1 Bosw. 430) 124 

V. Evans (1 Dev. & B. Eq 284) 97, 

99, 100, 172, 173 
Cottrell V. Mfg. Co. (64 Conn. 122, 6 

Atl. 791) 237 

Cottrill V. Vanduzen (22 Vt. 511) 77, 107 
Couch V. Mills (21 Wend. 424) 144 

V. Woodruff (63 Ala. 466) 47 

Couchman v. Maupin (78 Ky. 33) 331 
County V. Gates (26 Mo. 315) 160 
Course v. Prince (1 Mill 416) 248, 262, 263 
Coursen v. Hamlin (2 Duer 513) 200 
Coursey v. Baker (7 H. & J. 28) 169, 185 
Court r. Cross (3 Bing. 329) 157 
Cousten v. Burke (2 H. & G. 300) 255 
Cowan V. Burgess (Cooke 58) 303 
V. Creditors (77 Cal. 403, 19 Pac. 

755) 335 

('. Gill (11 Lea 674) 442, 472 

V. Iowa State Ins. Co. (40 la. 

551) 235 

V. Kinnev (33 Oh. St. 422) 69 

Coward r. Clanton (79 Cal. 23, 21 
Pac. 359) 7, 223 



TABLE OF CASES. 



XXVU 



Cowell V. Sikes (2 Russ. 191) 330, 482 
Cowen V. Eurtlierly Hardware Co. (11 

So. lyu) 98 

Cowles V. Garrett (30 Ala. 341) 127, 129, 3U2 
Cox, Kx parte (1 Glyn & J. 355) 146 

V. iimlfisli (35 Me. 302) 553 

I). Delano (3 Dev. 8'J) 45, 4G, 03 

V. iliekiiian ( 8 11. L. C. 268) 41, 05 

0. Hubbard (4 C. B. 317) 109 

V. Mcliiirney (2 Sandf. 501) 350 

y. Volkurt (rfO Mo. 505) 2:»2 

ij. VVillougliby (13 Ch. J). 803) 213 

Crabtree v. May ( 1 IJ. Moii. 289) 10, 17, 20 

V. Randall (133 Mass. 552) 52/" 

Craft V. McConoughy (79 111. 346) 9, 560 
Uragin c. Carleton (21 Me. 41)2) 70 
V. Gardner (64 Mich. 399, 31 

N. \V. 20(i) 333 

Craig V. Alverson (0 J. J. Marsh 609) 163 

: V. llulscliezer (34 N. J. 363) 274 

Cramer r. Baeiiniann ((J8 Mo. 310) 201 

V. Noonaii (4 Wis. 231) 322 

Crane v. Ford (Hopk. 114) 290 

('. Frencli (1 Wend. 311) 155, 3J3 

V. Morrison (4 Sawy. 138) 344 

Crater v. Binninger (45 N. Y. 545) 252 
Craven v. Kniglit (2 Chan. 226) 49'.) 

V. Widdows (2 Ch. Ca. 139) 200 

Crawford v. Austin (34 Md. 49) 57 

V. Bauni (12 Ricii. 75) 345, 470 

V. Collins (45 Barb. 209) 109, 227 

V. Hamilton (3 Madd. 251) 399 

V. Sterling (4 Esp. 207) 185, 186 

Crawshay v. Collins (15 Ves. 218, 2 

liuss. 342) 191, 200, 208, 212, 215, 240, 

241, 378, 394, 398, 434, 438, 440, 441, 

463, 400, 468, 501, 502, 501, 500, 509, 

523, 531 

V. Maule (1 Swanst. 495, 1 Wils. 

Ch. 181) 34, 127, 210, 294, 298, 299, 

371, 372, 378, 383. 388, 392, 390, 

398, 432, 434, 443, 448, 449, 459, 

463, 504, 531 

Creath v Sims (5 How. 192) 417 

Credit-Mobilier v. Com. (07 Pa. 233) 558 

Creel c. Bell (2 J. J. Marsh. 309) 310, 317 

Cremer v. Higginson (1 Mas. 338) 420 

Crescent Ins. Co. v. Bear (23 Fla. 50, 

1 So. 318) 10, 345 

V. Camp (64 Tex. 521) 236 

Cribb V. Morse (77 Wis. 322, 46 N. W. 

120) 3.32 

Crisdee v. Bolton (3 C. & P. 230) 224 

Crisp, Ex parte (1 Atk. 183) 479 

, (Willes467) 479 

Crispe v. Perritt (Willes 407, 1 Atk. 

133) 391, 464 

Crites V. Wilkinson (65 Cal. 559, 4 

Pae. 567) 1.32 

Crocker v. Colwell (46 N. Y. 212) 170 

V. Higgins (7 Conn. 342) 469 

Crockett V. Grain (33 N. H. 542) 331, 336 
Croft, In re (8 Biss. 188) 491 

■ V. Pyke (3 P. Wms. 112, 180) 137. 

330, 475 



Crompton v. Conkling (15 N. B. R. 

417) 469 

Cromwell v. County of Sac (96 U. S. 

51) 203 

Cronise v. Clark (4 Md. Ch. 403) 16 

Cronkhite v. llerrui (15 F. R. 888) 160 
Crooker v. Crooker (46 Me. 250) 344, 369 

V. (52 Me. 207) 95, 470, 482 

Cropper v. Coburn (2 Curt. 465) 344 

Crosbie v. Guion (23 13eav. 518) 432 

Crosby i;. Timolat (52 N. W. 520) 271 
Cross V. Burlington Nat. Bank (17 

Kas. 336) 3 

I'. Cheshire (7 Ex. 43) 25-5, 256, 259 

263, 264, 508 

V. Jackson (5 Hill 478) 2-58 

V. Langley (50 Ala. 8) 09 

Crossgrove c. Himmelrich (54 Pa. 203J 09 
Crossley v. T<iylor (83 Ind. 337) 248 

Crosthwait v. Ross (1 Humph. 23) 82, 84 
Crottes V. Frigerio ( 18 La. Ann. 283) 228 
Crouch V. Bowman (3 Humph. 209) 111, 

183 

V. Emmerson (3 Humph. 209) 182 

Croughton v. Forrest (17 Mo. 131) 132 
Crowder, Ex ]>arte (2 Vern. 706) 329 

Crowe V. Clay (9 E.x. 004) 483 

Crowther v. Thorley (32 W. R. 330) 557, 

561 
Croxton, Ex parte (1 De G. M. & G. 

600) 
Crozier v. Kirker (4 Tex. 252) 112 
Cruess i\ Fessler (39 Cal. 330) 
Cruinless v. Sturgess (6 Heisk. 190) 
Crusader, The (1 Ware 437) 
Cruttwell V. Lye (17 Ves. 335) 236, 237, 

239, 440 

V. (1 Rose 123) 

Cullen V. Queensbury (1 Bro. C. C. 

103) 
Cullum V. Bloodgood (15 Ala. 34) 
Cumming v. Forrester (1 M. & S. 497) 

V. Hackley (8 Johns. 202) 

Cummings ('. Howard (03 Cal. 503) 

V. Parish (30 Miss. 412) 

V. Powell (8 Tex. 80) 

Cummings's Appeal (25 Pa. 268) 
Cummins r.Cassily (5 B. Mon. 75) 150, 153 

V. Cummins "(8 Ired. Eq. 723) 385 

Cumpston v. McNair (1 Wend. 457) 37, 

58,59 
Cunliffe v. Dyerville (7 R. L 325) 201 
Cunningham v. Bragg (37 Ala. 436) 3«() 

V. Green (23 Oh. St. 296) 527 

V. Gusliee (73 Me. 417) 345 

V. Littlefield (1 Edw. Ch. 101) 144, 

507, 508 

V. Munro (15 Grav 471) 383, 409 

V. Ward (30 W. Va. 572, 5 S. E. 

646) 333, 366 

V. Woodbridge (76 Ga. 302) 123 

Currier r. Cameron (31 Mich. 373) 88 

V. Rowe (46 N. H. 72) 

V. Silloway (1 All. 19) 

V. Webster (45 IS. H. 226) 



207 
168 
237 
163 
01 



239 

553 
1.34 

318 
269 
203 
77 
17 
336 



252 

30 

252 



XXVIU 



TABLE OF CASES. 



Curry v. Fowler (87 N. Y. 33) 

V. Kurtz (33 Miss. 24) 

V. Larer (7 Barr 470) 

f. Wliite (51 Cal obO) 

Curtis V. Belkuap (21 Vt. 433) 



273, 



61 

163 
225 
IGU 
317, 
318 
53 
3 
496 

478 
152 
312 
103 

4(3 

489, 
497 
451 
6 
63 
164 

247 

22 
482 



V. Cash (84 N. C. 41) 

V. HoUingshead (2 Green L. 403) 

V. Perry (ii Ves. 747) 494, 

V. Woodward (58 Wis. 499, 17 

N. W. 328) 
Curtwel V. Brown (5 Jones 263) 
Cusliing V. Marston (12 Cusli. 431) 

V. Smith (43 Tex. 261) 

Cushnian v. Bailey (1 ildl 526) 
Cust, Ex parte (Cooke B. L. 548) 

Cuibush V. Cutbush (1 Beav. 184) 
Cutler V. Thomas (25 Vt. 73) 

V. Winsor (6 Pick. 335) 

Cutt V. Howard (3 Stark. 3) 
Cutting ?.'. Daigneau (151 Mass. 297, 

23 N. E. 839) 
Cutts V. Gordon (13 Me. 474) 
Cuxon V. Cliadley (3 B. & C. 591) 



D. 



Dabney v. Stidger (4 Sm. & M. 749) 165, 

187 
Dacie v. John (McClel. 206, 13 Price 

446) 520 

y. (McClel. 575) 302 

Dages 1-. Lee (20 W. Va. 584) 95 

Dailey v. Coons (64 Ind. 545) 103 

• (.-. Hall (5 Bush 549) 57 

Dain v. Cowing (22 Me. 347) 304 

Pakin v Demming (6 Paige 95) 512 

V. Graves (48 N. H 45) 255, 266 

V. Williams (17 Wend. 447, 22 . 

Wend. 201) 224 

Dale V. Hamilton (5 Hare 369) 6, 7, 35, 

349 
Dalton V. Dalton (33 Ga. 343) 55 

Dalton City Co. i: Hawes (37 Ga. 

115) ' 62 

Daly V. Bradbury (46 Minn. 396, 49 

N. W. 190) 333 

Dame v. Kempster (146 Mass. 454, 15 

N. E. 927) 51 

Dana v. Lull (17 Vt. 390) 134, 135 

V. Stearns (8 Cush. 342) 20 

Dance r. Girdier (1 B. & P. n. s. 34) 315 
Danforth r. Corter (4 la. 230) 163 

l^aniel '■. Cross (3 Ves. 277) 419 

r. Daniel (9 B. Mon. 195) 98, 99, 274, 

275, 337 

V. Nelson (10 B. Mon. 316) 163 

V. Owens (70 Ala. 297) 344 

V. Townsend (21 Ga. 155) 331 

Daniel Kaine, The (35 F. R. 785) 66 
Daniels, Petitioner (14 R. I. 500) 135 
V. Hammond (154 Mass. 165, 28 

N. E. 12) 99 



Dann v. Spurrier (7 Ves. 231) 
Darby v. Darby (3 Drew. 495) 



349, 



V. Gilligan (33 W. Va. 246, 10 

S. E. 400) 
Darling.?,-. Boston & C. R. R. (11 All. 

295) 

V. IMarch (22 Me. 184) 97, 99, 

172, 174, 376, 
Darracott v. Penington (34 Ga. 388) 
Darst V. Roth (4 Wash. C. C. 471) 

Dart V. Walker (3 Daly 136) 
Darthery v. Lee (2 Y. & C. 5) 
Davenport v. Gear (3 111. 495) 262, 

V. Rackstrow ( 1 C. & P. 89) 

V. Runlett (3 N. H. 386) 96, 100, 

David V. Birchard (53 Wis. 492, 10 N. 

W. 557) 
V. Ellice (5 B. & C. 196, 7 D. & R. 

690, 1 C. & P. 369) 94, 387, 415, 482, 
Davidson v. Bridgeport (8 Conn. 472) 

r. Robertson (3 Dow 22!>) 

Davies v. Atkinson (124 111. 474, 16 

N. E. 899) 

V. Games (12 Ch. D. 813) 360, 

V. Hawkins (3 Moo. & S. 488) 

272, 

V. Hodgson (25 Beav. 177) 

V. Penton (6 B. & C. 216) 

V. Spurliug (1 Tam. 199, 1 Russ. 

& M. 64) 
Davis, Estate of (5 Whart. 530) 

V. Allen (3 N. Y. 168) 

V. Berger (54 Midi. 652, 20 N. W. 

629) 

l: Briggs (39 Me. 304) 246, 

V. Burton (4 111. 41) 

V. Christian (15 Gratt. 11) 349, 

356, 362, 366, 367, 

I'. Church (1 W. & S. 240) 

V. Coleman (7 Ired. 424) 

v. Cock (14 Nev. 265) 

V. Davis (93 Ala. 173, 9 So. 736) 

V. (60 Miss. 615) 351, 352, 

V. (1 N. & McC. 290) 

V. Delaware & H. Can. Co. (109 

N. Y. 47. 15 N. E. 873) 

V. Desauque (5 Whart. 530) 

i: Howell (33 N. J. Eq. 72) 

V. Keyes (38 N Y. 94) 387, 402, 

V. Lane (10 N. H. 161) 

V. Mason (5 T. K. 118) 

V. Merrill (51 Mich. 480, 16 N. 

W. 864) 

r. Patrick (122 U. S. 138) 

V. Smitli (82 Ala. 198, 2 So. 897) 

V. (27 Minn. 390, 7 N. W. 

731) 

V. Sowell (77 Ala. 262) 435, 

Davison i^. Holden (55 Conn. 103, 10 

Atl. 575) 131, 

Dawes v. Head (3 Pick. 128) 
Dawson v. Ward (71 Tex. 72, 9 S. W. 

106) 



492 
357, 
358 

332 

65 
165, 
3«0 

54 
150, 
151 
119 
514 
264 
109 
172 

332 

484 
483 
169 

332 
364 
258, 
554 
238 
225 

515 

381 
406 

148 
308 
151 
355, 
432 
443 
159 
139 
333 
508 
320 

331 
96 
476 
407 
460 
401 

247 

65 
364 

98 
436 

549 
468 

10 



TABLE OF CASES. 



XXIX 



Day V. Lafferty (4 Ark. 450) 151 

V. Lockwood (24 Conn. 185) 202 

V. McQuillan (V.i Minn. 205) 4(38 

V. Stevens (88 N. C. 8;i) 53 

Dayton v. Bartlett (88 Oil. St. 357) 435 

V. Wilkes ( 17 How. Pr. 510) 237, 238 

Deal V. Bogue (20 Ta. 228) 320, 321, 325 

342, 343 
Dean v. Macdowell (8 Ch. D. 345) 198 

V. New hall (8 T. R. 1«8) 316 

I'. Plunkett (13G Mass. 105) 115 

V. Riclinioiid (5 Pick. 401) 23 

Deane i: Hutchinson (40 N. J. Eq. 83, 

2 Atl. 292) 344 

Dear, Er parte (1 Ch. 1) 514) 444 

Deardorf r. Tliacher (78 Mo. 128) 83, 84 
De Herensjer v. Hammeli (7 Jarm. 

Conv. 20) 45'5 

De Berkora v. Smith (1 Esp. 29) 37, 69, 

77, 81, 103, 107, 492 

De Caussey v. Baily (57 Tex. 005) 332, 

345 
Deckard v. Case (5 Watts 22) 133, 135, 

153 
Decker v. Howell (42 Cal. 63G) 
Decreet v. Burt (7 Cash. 551) 
Deering v. Flanders (49 N. H. 225) 



57,84 

247 

406, 

407 

22 



Deerly v. Mazarine (I Salk. 116) 
Deeter v. Sellers (102 Ind. 458, 1 

N. E. 854) 97, 231 

Deford r. Reynolds (36 Pa. 325) 405, 

407, 410, 411 
De Gallou r. L'Aigle (1 B. & P. 357) 23 
Degan v. Singer (41 111. 28) 69 

De Graura v. Jones (23 Fla. 83, 6 So. 

925) 23 

Degroot v. Darby (7 Rich. 117) 312, 313, 

319 
Deitz ('. Regnier (27 Kas. 94) 84, 171 

De Jarnette v. McQueen (31 Ala. 230) 

182, 183, 253, 266, 268 
Deland v. Amesburv Mgf. Co. (7 Pick. 

244) ' 416 

Delaney v. Hutcheson (2 Rand. 183) 

349, 359, 364 

V. Timberlake (23 Minn. 383) 57 

Delano v. Blake (11 Wend. 85) 18 

Delauney v. Strickland (2 Stark. 416) 

35, 52 
De Leon v. Trevino (49 Tex. 88) 9 

De Lizardi v. Gosset (1 La. Ann. 138) 

545 
Delmonico v. Guillaume (2 Sandf. 

Ch. 336) 325, 349 

Dl- Mautort v. Saunders (1 B. & Ad. 

398) 271, 272 

De Mazar v. Pvbus (4 Ves. 644) 36 

Deming v. Colt (3 Sandf. 290) 134, 135 
De Montmorency v. Devereux (1 Dru. 

& VV. 119) 514 

Demoss v. Brewster (4 S. & M. 661) 145 
Demott V. Swaim (5 St. & P. 293) 162 
Denithorne v. Hook (112 Pa. 240, 

3 AtL 777) 104 



Denman v. Dosson (18 La. Ann. 9) 

403, 407 
Deanery, hi re (89 Cal. 101, 26 Pac. 639) 4 
Dennett v. Chick (2 Me. 191) 76 

Dennis v. Green (20 Ga. 386) 339 

Denny v. Cabot (6 xMet. 82) 45, 46, 47, 78 

V. Metcalf (28 Me. 3»9) 270 

Denton v. Richmond (1 Cr. & M. 734) 224 

c. Rodie (3 Camp. 493) 89, 181 

Denver v. Roane (99 U. S. 355) 201, 202 
De Pusey v. Du Pont (1 Del. Ch. 82) 219 
Dermani v. Home Ins. Co. (26 La. 

Ann. 69) 235 

Descadillas v. Harris (8 Me. 298) 483 

Desha /•. Sheppard (20 Ala. 747) 200, 202 
Desher v. Holland (12 Ala. 513) 317 

Despatch Line v. Bellamy Mtg. Co. 

(12 N. H. 234) . 92 

DeTastet, Ex parte (1 Rose 10, 17 

Ves. 247) 479 

, (1 Rose 323) 485 

V. Bordenave (Jac. 516) 286, 302 

(;. Carroll (1 Stark. 88) 142, 471 

V. Shaw (1 B. & Aid. 664) 246, 250, 

271 309 

Deval V. Burbridge (6 W. & S. 529) ' 194 

Devan v. Fowler (2 Paige 400) 287 

Devaynes ('. Noble (1 Mer. 529) 320, 387, 

419. 421, 425, 426, 482, 522 

r. (2 Russ. & M. 495) 330, 445 

Devin v. Harris (3 Greene 186) 
Devore v. Woodruff (1 N. D. 

45 N. W. 701) 
Devoss V. Gray (22 Oh. St. 159) 
De Wahl v. Braune (1 H. & M. 178) 26 
Dewdney, E.v parte (15 Ves. 499) 479 

Dewey v. Chapin (156 Mass. 35, 30 

N. E. 223) 

V. Dewey (35 Vt. 555) 

Dexter v. Arnold (2 Sumn. 108) 

r. (3 Mass. 284) 

De Zeug v. Bailey (9 Wend. 336) 
Dial V. Agnew (28 S. C. 454, 6 S. E. 

295) 
Dickenson v. Holland (2 Beav. 310) 

V. Lockyer (4 Ves. 36) 385, 420 

Dickinson >:. Bold (3 Desaus. 501) 213, 443 

V. Dickinson (29 Conn. 601) 503 

V. (25 Gratt. 321) 387 

V. Granger (18 Pick. 315) 261, 263, 

266, 522 

V. Legare (1 Desans. 537) 135, 508 

V. Valpy (10 B. & C 128) 12, 82, 104 

Dickson, Ex parte (2 Mont. & A. 99) 485 

V. Alexander (7 Ired. 4) 142 

V. Indianapolis C Mgf. Co. (63 

Ind. 9) .385, 400 

Dietrichsen v. Cabburn (2 Phil. 52) 

278 279 
Diggs V. Brown (78 Va. 292) 352,' 360, 

366 
Dilk V. Keighlev (2 Esp. 480) 16 

Dillon V. Brown (11 Gray 179) 366 

Dilworth u. Mayfleld (36 Miss. 40) 349, 

356, 367 



206 
143, 
204, 249 



438 
362 
512 
526 
143 

333 

514 



XXX 



TABLE OF CASES. 



Dim on V. Hazard (32 N. Y. 65) 332, 401 
Dimoiid V. Henderson (47 Wis. 172, 

2 N. VV. 73) 199 

Dinham v. Bradford (L. R. 6 Ch. 519) 



Dinsniore i'. Dinsmore (21 Me. 433) 
Disideri, Re (L. K. 11 Eq. 242) 
Ditclibuni d. bpracklin (5 Esp. 31) 



202 
159 
403 
U9, 
469 
170 
302 



Ditts V. Lonsdale (49 Ind. 529) 
Divine v. Mitcluim (4 B. Mon. 488) 
Dix c. Mercantile Ins. Co. (22 111. 272) 

230 

13, 55 

139 

60 

58 

55, 96, 97, 



V. Otis (5 Pick. 38) 

Di.xon V. Alexander (7 Ired. 4) 

I'. Cooper (3 VVils. 40) 

Doak V. Swann (8 Me. 170) 
Dob V. lialsey (10 Johns. 34) 



126 



469 
129 



100, 173, 312 
Dobbin v. Foster (1 C. & K. 323) 313, 388 
Dobbins v. Tatem (25 Atl. 544) 372, 512 
Docker (;. Somes (2 M. & K. 656) 123 

Dodd V. Bishop (30 La. Ann. 1178) 103 
Doddington v. Hallet (1 Ves. Sen. 497) 

66 
Dodds V. Rogers (68 Ind. 110) 
Dodge I'. Dicas (3 B. & Aid. 611) 
Dodgson, Ex parte (Mont. & M. 445) 

V. Bell (5 Ex. 57) 24, 25 

V. (5 Ex. 967) 130 

Doe V. Halme (2 M. & R. 433) 165 

Doggett I'. Jordan (2 Fla. 541) 6 

Dolman v. Orchard (2 C. & P. 104) 77, 
107, 403, 407 
Dolph v. Troy Laundry Machinery 

Co. (28 F. R. 553) 566 

Dommett v. Bedford (6 T. R. 684, 3 

Ves. 149) 467 

Domville v. Solly (2 Russ. 372) 517 

Donaghue i'. Gaffy (53 Conn. 43, 2 Atl. 

397) 321 

Donaldson v. Kendall (2 Ga. Dec. 

227) 508 

V. Williams (1 Cr. & M. 345) 199 

Donelson v. Posey (13 Ala. 752) 234, 235 
Doner v. Stauffer (1 Pen. & W. 198) 137, 
325, 327, 331, 446, 500 
Doniphan v. Gill (1 B. Mon. 199) 92 

Donnally v. Ryan (41 Pa. 306) 89 

Donnell v. Harshe (67 Mo. 170) 53 

Doo V. Chippenden (Abb. Ship.) 272 

Dore V. Wilkinson (2 Stark. 287) 124 

Doremus v. McC(.rmick,(7 Gill 49) 116, 
14.3, 144, 307 

V. Selden (19 Johns. 21-3) 253, 817 

Doty V. Bates (11 Johns. 544) 112, 171, 

183 
Doiibledav v. Muskptt (7 Ring. 110) 103 
Dougal y.'Cowles (5 Day 511) 111, 139, 

169 
Dougherty v. Van Nostrand (1 Hoff. 

Ch. 68) 196, 200, 237, 239, 240, 241, 

384, 440, 443, 531 

Douglas V. Horsfall (2 Sim. & S. 184) 322 

V. Winslow (20 Me. 89) 325, 338, 344 



Dounce ('. Parsons (45 N. Y. 180) 
Dow IK Phillips (24 111. 249) 
V. Sayward (12 N. II. 271) 



128 

170 

78, 86, 
338 
291 
435 
248 



V. (14 N. II. 9) 

Dovvd V. Troup (57 Miss. 204) 
Oovvling V. Clarke (13 R. I. 134) 
V. Exchange Bank (145 U. S. 

512) . 
Downer v. Whittier (144 Mass. 448) 
Downhara v. Matthews (I Ves. Sen. 

497) 
Downing v. Linville (3 Bush 472) 
Downs V. Collins (6 Hare 418) 127, 447, 

450 

V. Gazebrooke (3 Meriv. 200) 514 

V. Jackson (33 111. 404) 269, 376 

Dowzelot V. Rawlings (58 Mo. 75) 103 

Doyle V. Bailey (75 111. 418) 508 

Drake v. Elwyn (1 Caiues 184) 6, 110, 

169 

V. Hill (53 la. 37) 

Moore (66 la. 58, 23 N. W 



84 
203 

210 

97 



95 



263) 



350 
61 
136 
132 
144 



Ramey (3 Rich. 37) 

V. Rogers (6 Mo. 317) 

I'. Thvng (37 Ark. 228) 

Dran ?-. Nc-whall (8 T. R. 168) 

Dreher v. ^.tna Ins. Co. (18 Mo. 128) 230 

Drennan r. London Assur. Corp. (20 

F. R. 657) 235 

Drennen v. House (41 Pa. 30) 103 

Drew V. Person (22 Wis. 651) 200 

i;. Power (1 Sch. & L. 182) 515 

Drewry v. Montgomery (28 Ark. 256) 354 
Driver v. Burton (17 Q. B. 989) 312 

Drucker v. Wellhouse (82 Ga. 129, 



8 S. E. 40) 
Drumrigiit v. Philpot (16 Ga. 424) 



480 
151, 

152 
295 



41, 45, 55 
315 



20 
271 

532 



Drury v. Roberts (2 Md. Ch. 157) 
Dry V. Boswell (1 Camp. 329) 

I'. Davy (10 A. & E. 30) 

Dublin & W. R. R. v. Black (8 Ex 

181) 
Dubois v. Ludert (5 Taunt. 609) 

V. Roosevelt (4 Johns. 262) 

Dubois's Appeal (38 Pa. 231) 139, 154 
Dubos V. Hoover (25 Fla. 720, 6 So. 

788) 58 

Du Bree v. Albert (100 Pa. 483) 350 

Duckworth v. Alison (1 M. & W. 412) 224 

V. Trafford (18 Ves. 283) 297 

Dudley v. Littlefield (21 Me. 418) 35, 180, 

349 
Duff V. Baker (78 la. 642, 43 N. W. 

463) 403 
V. East India Co. (15 Ves. 198) 144, 

385 

V. McGuire (99 Mass. 300) 57, 248 

Duhring v. Duhring (20 Mo. 174) 349, 
358, 362, 364, 366 
Dulles V. De Forest (19 Conn. 190) 426 
Dumas v. Jones (4 Mass. 647) 318. 319 
Dumont v. Ruejjprecht (38 Ala. 175) 454 



TABLE OF CASES. 



XXXI 



257 
47G 
2U7 
8 
45, 102 



Dunbar v. Lane (1 Bro. P. C. 3) 515 

Duncan i\ Clark (2 Rich. 587) 180 

V. Lewis (1 Duv. 183) 87 

u. Lowndus ('i Camp. 478) 185 

V. Lyon (3 Johns. Ch. 351) 252, 257, 

2t)7, 507 

V. Worrall (10 Price 31) 289 

Dunihass v. Gallajjher (4 Barr 205) 184 
Duniiani v. Gillis (8 Mass. 4G2) 

V. Hanna (18 Ind. 270) 

V. Jar vis (8 Barb. 88) 

. Presby (120 Mass. 285) 

V. Rogers (1 Barr 255) 

V. Shindler (17 Ore. 256, 20 Pac. 

320) 333 

Dunlap V. Limes (49 la. 177) 168 

V. McNeil (35 Ind. 316) 429 

V. Watson (124 Mass. 305) 202, 527 

Dunlop V. Gregory (10 X. Y. 241) 402 

Dunman v. Coleman (59 Tex. 199) 333 
Dunn V. Lee (1 J. B. Moo. 2) 
Dunnica v. Clinkscales (73 Mo. 500) 
Dunning's Appeal (44 Pa. 150) 
Dunton v. Brown (31 Mich. 182) 
Dupierris v. Hallisay (27 La. Ann. 

132) 
Dupuy V. Johnson (1 Bibb 502) 

V. Leavenworth (17 Cal. 262) 

V. Sheak (57 la. 3tJl) 

Durant i: Abeiidrotli (69 N. Y. 148) 
V. Rhener (26 Minn. 362, 4 N. VV. 

610) 
Durbin i-. Barber (14 Olno 311) 
Durham r. Hartlett (32 Ga. 22) 
Duryea v. Burt (28 Cal. 569) 
Duryee v. Elkins (1 Abb. Adm. 529) 
Dutton V. Morrison (17 Ves. 193) 

290, 391, 463, 465, 468, 470, 475, 503 

V. Woodman (9 Cush. 255) 164 

Duvergier v. Fellows (5 Bing. 248, 10 

B. & C. 826) 550, 554, 556 

D wight V. Brewster (1 Pick. 50) 124, 142 

V. Hamilton (113 Mass. 175) 236, 

238 

Dwinel *•. Stone (30 Me. 384) 6, 46, 55 

Dyer v. Clark (5 Met. 562) 137, 349, 350, 

351, 353, 354, 356, 358, 361, 362, 363, 

364, 369, 399, 432, 434, 436, 521, 522 

Dyke v. Brewer (2 C. & K. 828) 12, 73, 

139, 427 
Dyster, Ex parte (2 Rose 256) 494 



E. 



Eager v. Crawford (76 N. Y. 97) 61 

Eagle V. Bucher (6 Oh. St. 295) 394 

Early v. Reed (6 Hill 12) 185 

Eason v. Cherry (6 Jones Eq. 261) 194 

East India Co. r. Blake (Finch 117) 224 

V. Vincent (2 Atk. 83) 492 

Eastburn v. Kirk (1 Johns. Ch. 444) 292 
Eastman v. Clark (53 N. H. 276) 44, 46, 57 

V. Cooper (15 Pick. 276) 147 

V. Foster (8 Met. 19) 485 



269 

488 

542 

17 

165 
269 
350 
23 
539 



456 

529 

58 

60 

154 



Eastman v. Wright (6 Pick. 316) 142, 270. 

307, 312 
Easton *•. Courtwright (84 Mo. 27) 364 
V. Strother (57 Ga. 506, 10 N. W. 

877) 204 
Eastwood V. Brown (1 Ry. & M. 312) 493 
Eaton V. Boissoncault (67 Me. 540) 203 
V. Walker (76 Mich. 579, 43 

N. W. 638) 50 

Ebbert's Appeal (70 Pa. 79) 6, 359 

Eccleston v. Clipsham (1 Saund. 153) 207, 

216, 257 
Eddie v. Davidson (1 Doug. 650) 137, 446, 

475 
Edgar v. Donnally (2 Munf. 387) 

V. Fowler (3 East 222) 

Edger v. Knapp (6 Scott N. R. 707) 



360 
269 
255, 
269 
18 



Edgerly v. Shaw (25 N. H. 514) 
Edison Electric Bluminating Co. v. 

De Mott (25 Atl. 952) 
Edmiston v. Wright (1 Camp. 88) 
Edmondson v. Davies (4 Esp. 14) 
Edmund v. Caldwell (15 Me. 340) 
Edmunds v. Bushell (L. R. 1 Q. B 

97) 
Edmundson v. Thompson (2 F. & F. 

564) 

r. (31 L. J. Ex. 207) 

Edwards v. McFall (5 La. Ann. 167) 

c. Meyrick (2 Hare 60) 

c. Parker (88 Ala. 356, 6 So 684) 347 

V. Remington (51 Wis. 336, 8 

N. W. 193) 

c. Thomas (66 Mo. 468) 

V. Tracy (62 Pa. 374) 

Egbert v. Kimberly (23 Atl. 437) 
Egberts v. Wood (3 Paige 517) 135, 136, 
327, 436, 464, 468 
Ehle V. Purdy (6 Wend. 629) 316 

Eichel V. Sawyer (44 F. R. 845) 68 

Eighth Nat. Bank v. Fitch (49 N. Y. 

539) 
Finer v. Beste (32 Mo. 240, 39 Mo. 

69) 
Elder V. Hood (28 111. 538) 
Elderkin r. Winne (1 Chandl. 27) 
Electric Tel. Co. of Ireland, In re (22 

Beav. 471) 

Elgie V. Webster (5 M. & W. 518) 5, 252, 

507 
Elkin V Green (13 Busli 612) 
Elkinton v. Booth (143 Mass. 479) 
Ellicott V. Nichols(7 Gill 85) 
Elliot V. Davis (2 B. & P. 838) 
Elliot's Appeal (60 Pa. 161) 
Elliott V. Brown (9 Ves. 597) 

i\ (3 Swanst. 489) 288, 

v. Dudley (19 Barb. 326) 97, 99, 172, 

173 

V. Dvcke (78 Ala. 150) 367 

V. Holbrook (33 Ala. 659) 144 

V. Sleeper (2 N. H. 525) 483 

^^ Stevens (38 N. H. 311) 340 

Ellis, Ex parte (2 Glyn & J. 312) 473, 499 



497 
147 
125 
317 

115 

103 
104 
409 
514 



254 

432 

57,69 

539 



345 

134 
251 

70 

371 



427 
409 
160 
154 
236 
436 
377 



xxxu 



TABLE OF CASES. 



Ellis V. Allen (80 Ala. 515, 2 So. 670) 
131, 132, 

V. Bronson (40 111. 445) 403, 

V. Ellis (47 N. J. 69) 

V. Jameson (17 Me. 235) 

c. Watson (2 Stark. 453) 

Ellison V. Chapman (7 Blackf. 224) 

V. Dezell (1 Sel. N. P. 385) 

V. Lucas («7 Ga. 223, 13 S. E. 

445) 

V. Moffat (1 Johns. Ch. 46) 

c. Sexton (105 N. C. 356, 11 S. E. 

180) 
EUston u. Deacon (L; R. 2 C P. 20) 
Ellsworth V. Tartt (26 Ala. 733) 
Elmer r. Hall (28 Atl. 971) 248, 

Elmira I. & S. R. M. Co. v. Harris (124 

N. Y. 280, 26 N. E. 541 ) 32, 408, 
Elton, Ex parte (3 Ves. 238) 329, 477, 

Elverson v. Leeds (97 Ind. 3-36) 
Emanuel v. Bird (19 Ala. 596) 

V. Draughn (14 Ala. 303) 

Emberson v. McKenna (16 S. W. 419) 61 
Emerick v. Moir (124 Pa. 498, 17 

Atl. 1) 
Emerson v. Harmon (14 Me. 271) 142, 

V. Knower (8 Pick. 63) 152, 

V. Senter (118 U. S. 3) 

Emery v. Wilson (79 N. Y. 98) 
Emly V. Lye (15 East 7) 89, 

Emmet v. Butler (7 Taunt. 599) 
Enderby, Ex parte (2 B. & C. 389) 

England v. Curling (8 Beav. 129) 193, 

211, 

V. England (1 Baxt. 108) 

England, Bank of. Ex parte (2 Rose 
82) 487, 

Englis V. Furniss (4 E. D. Smith 587) 

271, 
English Society, Tn re (1 H. & M. 85) 
Ennis v. Williams (30 Ga. 691) 
Ensign v. Wands (1 Johns. Cas. 171) 

53, 81, 
Ensminger v. Marvin (5 Blackf. 210) 
Entwisle v. Mulligan (12 Atl. 766) 
Espy V. Comer (76 Ala. 501) 160, 

Essex V. Essex (20 Beav. 442) 357, 
Estabrook v. Messersmith (18 Wis. 
545) 

r. Smith (6 Grav 570) 

Estes r. Whipple (12 Vt. 373) 246, 
Estwick V. Conningsby (1 Vern. 118) 

300, 302, 
Etheridge v. Binney (9 Pick. 272) 74, 

143, 170, 
Etnyre r. McDaniel (22 111. 201) 
Eubanks v. Peak (2 Bail. 497) 
Eustis V. Bolles (146 Mass. 413, 16 

N. E. 286) 
Evans v. Bennett (1 Camp. 303) 
V. Bicknell (6 Ves. 174) 276, 



78, 
193 
409 
155 
70 
69 
257 
152 

332 
512 

405 

lOU 

66 

346 

409 
478, 
491 
405 
446 
58 
8,69 

223 
143, 
180 
307 
136 
255 
181 
407 
493, 
494 
209, 
456 
62 

496 
270, 
307 
65 
403 
37, 
532 
171 
105 
361, 
364 
358 

391 
311 
258 

294, 
436 

114, 

171 

203 

18 

403 
316 
512 



Evans v. Biddleman (3 Cal. 435) 88 

V. Bryan (95 N. C. 174) 98, 525 

r. Corriell (1 Greene 25) 69 

V. Drummond (4 Esp. 89) 69, 73, 95, 

387, 409, 416, 482, 484, 485 

V. Evans (9 Paige 178) 300, 434, 437, 

443, 504, 531 

V. Gibson (29 Mo. 223) 354, 364 

V. Silverluck (1 Peake 21) 275, 312 

r. Wells (22 Wend. 325, 20 Wend. 

251) 180 

V. Winston (74 Ala. 349) 475 

V. Yeatherd (2 Bing. 133) 254, 267 

Everard v. Heme (Litt. 191) 143 

Everet v. Williams (1 Lind. Part. 93) 9 
Everett v. Coe (5 Den. 180) 45, 46 

r. Stone (3 Storv 446) 470 

Everhart's Appeal (100 Pa. 349) 6 

Everit v. Strong (5 Hill 163, 7 Hill 

585) 134, 153 

i: Watts (10 Paige 82) 23 

Everitt v. Chapman (6 Conn. 347) 6, 53, 
74, 102, 229 
Evernghim v. Ensworth (7 Wend. 

326) 97, 178 

Ewing V. French (1 Blackf 353) 317 

V. Osbaldiston (2 My. & Cr. 53) 8, 9 

Exchange Bank v. Tracy (77 Mo. 

594) 432, 451 

V. White (30 F. R. 412) 83, 87 

Evrich v. Capital State Bank (67 

'iMiss. 60, 6 So. 615) 347 



F. 



Fagely v. Bellas (17 Pa. 67) 
Faikney v. Reynous (4 Burr. 2069) 
Fail r. McRee (36 Ala. 61) 
Fairburn v. Pearson (2 McN. & G. 

144) 
Fairchild v. Fairchild (64 N. Y. 471) 

V. Holly (10 Conn. 184) 421,423, 

Fairland v. Percy (L. R. 3 P. & D. 217) 
Fairthorne v. Weston (3 Hare 387) 

457, 
Faith V. Richmond (11 A. & E. 339) 

111, 
Falkland v. Cheney (5 Bro. P. C. 476) 
Fall River Whaling Co. v. Borden 

(10 Cush. 458) 7, 35, 349, 350, 353, 

Fancher v. Bibb Furnace Co. (80 Ala. 

481, 2 So. 268) 148, 

Fanning v. Cliadwick (3 Pick. 420) 

261, 263, 
Fanshawe t'. Lane (16 Abb. Pr. 71) 
Farber v. Granard (4 B. & P. 80) 
Fargo I'. Ames (45 la. 491) 
Farina v. Silverlock (1 De G & J. 434) 
Farley v. Moog (79 Ala. 148) 344, 
Farlovv, Ex parte (1 Rose 421) 
Farmer v. Russell (1 B. & P. 296) 
Farmers' Bank v. Bay less (35 Mo. 

428) 



154 

9 

53 

294 
350 
425 
563 
294, 
510 
110, 
112 
188 

354, 
356 

308 
260, 
266 
542 
23 
98 
244 
436 
468 
269 

181 



TABLE OF CASES. 



XXXlll 



Farmers' Bank v. Bayliss (41 Mo. 274) 89, 

181 

V. Clarke (4 Leifjh 603) 

V. Green (30 N. J. 316) 

V. liitter ( 12 Atl. Gu'J) 

c. Smith (20 \V. Va. 641) 

Farmers' Ins. Co. v. Ross (29 Oh. St 

429) 
Farnam v. Boutelle (13 Met. 159) 
Farnliam v. Bro.)k.s (9 Pick. 212) 
Farniim, /;( re (6 Law Kep 21) 

V. I'atch (tiO N. IL 294) 

Farr v. Johnson (25 111. 522) 

V. I'earce (3 Madd. 74) 241,242,440, 

441 

V. Smith (9 Wend. 338) 

Farrant r. Ohiiius (3 B. & Aid. 692) 
Farrar v. Beswick (1 M. & W. (585) 

V. (1 M. & \i. 527) 

V. Deflinne (1 C. & K. 580) 

V. Ilutciiinson (9 A. & E. 641) 

142, 178, 179 
Farrington v. Harrison (44 N. J Eq. 

232, 10 Atl. 105) 
Farwell r. Metcalt (63 N. H. 276) 
r. St. Paul Trust Co. (45 Minn. 

495, 48 N. \V. 326) 
Faulkner v. Bailey (123 Mass. 588) 

V. Wiiitaker (3 Green L. 438) 

Fawcett v. Osborn (32 111. 411) 

V. Wliitehouse (1 K. & M. 132) 

Fay V. Davidson (13 .Minn. 523) 

V. Noble (7 Cush. 188) 

Fayette Nat. Bank v. Kenney (79 Kv. 

123) 47"7, 

Fearns v. Young (9 Ves. 549) 443, 
Featiierstone v. Hunt (IB & C. 113) 387. 

418 
Featherstonhaugh v. Fenwick (17 

Ves. 298) 196, 204, 212, 240, 372, 373, 

384, 388, 392, 394, 443, 467, 504, 509, 531 

. f. Turner (25 Beav. 382) 530 

Feigley v. Sponeberger (5 W. & S. 

464) 

V. Whitaker (22 Oh. St. 606) 

Felichy i'. Hamilton (1 Wash. C C. 

491) 

Fell, Ex parte (10 Ves. 347) 326, .328, 338, 

490, 493, 494 

Fellows V. Wyman (.33 N. H. 351) 378, 

381 382 
Felton V. Deall (22 Vt. 170) ' (52 

Fenn i'. Bolles (7 Abb. Pr. 202) 243 

0. Craig (3 Y. & C. 216) 322 

V Timpson (4 E. 1). Smitli 276) 69 

Fennings i;. Grenville (1 Taunt. 241) 303, 

304 
Fenton v. HoUoway (1 Stark. 126) 27 
Fereday v. Hordern (Jac. 144) 52 

I'. Wightwick ( 1 Tam. 2.50) -34, 443, 

502, 503, 504, 531 

V. (1 R. & M. 45) 364 

Fereira i: Sayres (5 W. & S. 210) 383 

Ferguson v. Baker (116 N. Y. 257, 22 

N. E. 400) 254 



159 

412 

136 

49 

53, 58 
425 
514 

487 

49 

232 



303 
224 
303 
234 
409 
97, 



512 



98 

159 

3 

60 
196 

66 

50 

487 
.501 



79 
162 



54 



Ferguson v. Bell (17 Mo 347) 

V. Hanauer (19 S. W. 749) 

Fern r. Cusliing (4 Cush. 357) 
Fernald u. Clark (is4 Me. 234, 24 Atl. 

823) 
Ferris v. Burrows (.34 Hun 104) 

V. Myrick (44 N. Y. 315) 

Ferry v. Henry (4 Pick. 75) 47, 

Fessler v. Hickerneli (82 Pa. 150) 
Feucht r. Evans (52 Ark. 217) 
Fichtliorn v. Boyer (1 Watts 159) 
Fickett r. Switt (41 Me. 65) 
Fidgeon v. Sliarp (1 Marsh. 198) 

Field V. Carr (5 Bing. 13) 

V. Clark ( t Ves. 396) 

V. Crawford (6 Gray 116) 

u. Holland (6 Cranch 8) 

Fielden v. Lahens (9 Bosw. 436) 

Fife, Ex parte (2 Mont. & A. 577) 
Fifth Ave. Bank r. Colgate (120 N. Y. 

381, 24 N. E. 799) 
Figes, Ex parte (1 Glyn & J. 122) 

V. Cutler (3 Stark. 139) 11, 

Figgins V. Ward (2 C. & M. 424) 
Fightmaster v. Beasly ^7 J. J. Marsh. 

415) 
Filbrun v. Ivers (92 Mo. 388, 4 S W. 

674) 
Filley v. McHenry (71 Mo. 417) 
t' Phelps (18 Conn 294) 111, 



Finckle v. Stacy (Ca. Ch. 9) 
Finlay v. Stewart (56 Pa. 183) 



249, 



Finley i;. Fay (17 Hun 67) 

V. Lycoming Ins. Co. (30 Pa. 

311) 
Finney v. Bedford Ins. Co. (8 Met. 

348) 

r. Warren Ins. Co. (1 Met. 16) 

Fireman's Ins. Co. v. Floss (67 Md. 

403, 10 Atl 139) 
First Nat. Bank v. Almy (117 Mass. 

476) 50, 

V. Breese (-39 la. 640) 

V. Clark (32 N. E. 255) 

V Conwav (67 Wis. 210, 30 N. 

W. 215) ■ 68, 69, 
V. Hackett (61 Wis. 33-5, 21 N. 

W. 280) 135, 

(•. Hall (101 U S 4.3) 

v: Morgan (73 N Y. 593) 96, 171 

V. Parsons (128 Ind. 147, 27 N. 

E.486) 

V. Whitney (4 Lans. 34) 

Fisher v. Bowles (20 III. .396) 77, 

('. Mowbray (8 East 380) 

I'. Murray (1 E. D. Smitli .341) 

V. Sweet (67 Cal. 228, 7 Pac. 

657) 58, 

V Taylor (2 Hare 218) 

V. Tucker (1 McC. Ch. 169) 150, 



17 
368 
468 

414 

438 
663 
520 
248 
98 
151 
164 
470, 
490 
425 
446 
346 
•69 
170. 
173 
146 

543 
503 
210 
164 

.304 

204 
69 
183, 
445 
64 
256. 
266 
136 

235 

318 
318 

2-36 

,550 
170 
642 

,405 



427 
445 

1.36 
540 
103 
16 
135 

248 
147 
1.59, 

508 



XXXIV 



TABLE OF CASES. 



Fisk V. Copeland (1 Over. 383) 164 

V. Herrick (G Mass. 271) 137, 33'.l, 

345, 340, 44t) 
Fiske V. Foster (10 Met. 697) 468 

r. Gould (12 F. K. 372) 445 

Fitch V. Hall (25 Barb. IH) 45 

c. Harrington (13 Grav 4G8) 104, 

128, 474 

V. Stamps (6 How. Miss. 487) 1U4 

Fitzell V. Leaky (72 Cal. 477, 14 Pac. 

198) 53 

Fitzgerald v. Grimniell (64 la. 261, 20 

N. W. 179) 335 

Fitzpatriek o. Flannagan (106 U. S. 

648) 442 

Flack V. Charron (29 Md. 311) 332 

Flagg V. Upham (10 Pick. 147) 173 

Fliinaj>an (•. Shuck (82 Ky. 617) 360 

Fhuiagiu v. Champion (I Green Ch. 

51) 69, 162, 164 

Fleischmann v. Gottsclialk (70 Md. 

52:^, 17 Atl. 384) 222 

Fleming v. Uunbar (2 Hill S. C. 532) 150, 

151 

I'. McNair (1 Mont. Part. 37) 106 

Flemyng v Hector (2 M. & W. 172) 35, 52 
Fletcher v Dyche (2 T. K. 32) 224 

c. Pollard (2 Hen & M. 544) 520 

V. PuUen (70 Md. 205, 16 Atl. 

887) 105 
o. Reed (131 Mass. 312) 392, 393 



Vandusen (52 la. 448) 
Flood (.'. Yandes (1 Bhickf. 102) 
Flournoy r. Williams (68 Ga. 707) 
Flower r. Barnekoff (20 Ore. 132, 25 
Pac. 3;0) 

r. O'Connor (7 La. 194) 

Flovd V. Wallace (81 Ga 688) 

Fo.sg V. Green (16 Me. 282) 

V. Johnston (27 Ala. 432) 11, 



284 

151 

69 



444 

123 

70 

276, 



V. Lawry (68 Me. 7 

Foil r. McArthur (31 Ala 26) 
Folds r. Allardt (35 Minn. •: 

N. W. 201) 
Foley V. Hobards (3 Ired. 177) 
Folk V. Ru-sell (7 Baxt. 591) 
V. Wilson (21 Md. 538) 



277, 455, 456 
343 



164 
29 

17 

88 
160 
70, 89, 181 
16 



Forrester v. Bell (10 Tr. L. 656) 551 

Forsaith v. Merritt (1 Low. 336) 468 

Forster i\ Hale (5 Ves. 308) 302 

Forsyth r. Hastings (27 Vt. 646) 18 

V. Woods (11 Wall. 484) 4, 488 

Furtune o. Brazier (10 Ala. 791) 252, 258 

316 
Fosdick V. Van Horn (40 Oh St. 459) 114 
Foster v. AUanson (2 T. li. 479) 262, 267, 

507, 619 
V. Andrews (2 Pen. & W. 160) 169, 

173 

V. Barnes (81 Pa. 377) 361 

V. Donald (1 Jac. & W. 262) 214, 516 

i\ Hall (4 Humph. 346) 88, 89 

V. Jackson (Hob. 59) 144 

0. Lawson (3 Bing. 452) 320, 321 

y. United States Ins. Co (11 

Pick. 85) 146 

Foster's Appeal (74 Pa. 391) 359 

Fougner v. First Nat. Bank (30 N. E. 

442) 61 

Fourth Nat. Bank v. Altlieimer (91 

Mo. 190, 3 8 W. 858) 58, 187 

Foute V. Bacon (24 Mi.-^s. 156) 161 

Fowke V. Bowie (4 H. & J. 566) 420 

P'owle V. Harrington (1 Cush. 146) 381 
Fowler r. Bailey (14 Wis. 125) 350 

r. Lud«ig (34 Me. 455) 96, 483 

Fowlkes V. Bowers (11 Lea 144) 476, 487 

Fox V. Clifton (6 Bing. 776) 12, 30, 108, 

130, 140,252,554, 556 

V. (9 Bing. 115) 6, 11, 130, 554, 

556 

V. Hanburv (Cowp. 445) 129, 131, 

134, 136, 304, 324, 391, 463, 464, 465, 
466,471, 475, 531 

155 

68 
24 
427 
249 
.24, 
247 

118 
354 



Fonda V. Van Home (15 Wend. 631] 
Foot >\ Goldman (68 Miss. 629, 10 So. 

62) 17 

r. Sahin (19 Johns. 154) 96, 185 

Forbes a. Marshall (11 V.x. 176) 113 

V. Webster (2 Vt. 58) 269 

Ford r. Clark (72 Ga. 76(1) 160 

;• H ift (Writrht 118) 150 

r. Pliillips (1 Pick 202) 19 

Forde c. Herron (4 Munf. 316) 350, 867, 

369 
Fore r. Hittson (70 Tex. 517, 8 S. W. 

2' "2) 83 

Forkner i\ Stuart (6 Gratt. 197) 131 

Forman v. Homfray (2 Ves. & B. 329) 280. 



Forney v. Adams (74 Mo. 138) 



508, 510 
97 



V. Norton (9 Mich. 207) 

Francis, In re (2 Sawy. 286, 7 N. B. 
R. 359) 

V. Dickel (68 Ga. 265) 

r. Smith (1 Duv. 121) 

F>ancisco v. Fitch (25 Barb. 130) 
Frank v. Anderson (13 Lea 695) 23 

Blake (68 la. 760, 13 N. W. 



50) 



V. Branch (16 Conn 261) 
V. Webb (67 Miss. 462, 6 So 

(-.20) 
Frankland v. McGusty (1 Knapp Pr 

274) 99, 175, 176 

Franklin v. Brownlow (14 Ves. 550) 467 

V. Robinson (1 Johns Ch. 156) 200, 

384 

V. Thomas (3 Mer. 225) 

Franklin, The (6 C. Rob. 127) 
Franklin Bank v. Hooper (36 Me 

222) 
Franks, Er parte (1 Moo. & R. 1) 

r. De Pienne (2 Fsp. 687) 

Fraser v. Gates (118 111. 99, 1 N. E 

817) 
Frazer, Tn re (1892, 2 Q. R. 633) 
V Howe (106X11. 563) 



201 



290 
26 

420 
22 
23 

66 
405 
429 



TABLE OP CASES. 



XXXV 



Frazier v. Frazier (77 Va. 775) 
Fret'land v. (Jocke (2 Miiiif. ',ib'2) 

V. Heron (7 Crarich 147) 

V. Stansfield (16 Jur. 792) 

V. (2 Sm. & G. 479) 

Freeman, Ex parte (liuck 471) 



V. Bloomfield (43 Mo. 391) 

0. Cairpbell (05 Cal. 107) 

/'. Oarliart (17 Ga. 348) 

r. Carpenter (17 Wis. 126) 

i\ Ellison (37 Mich. 459) 

V. Fairlie (3 Mer. 44) 

0. Ross (15 Ga. 252) 

V. Smith (2 Wall. 160) 

('. Stewart (41 Miss. 138) 

Freeman's Bank v. Rollins (13 Me 

202) 
Freese v. Meson (49 111. 191) 
Freligh v. Miller (10 La. Ann. 418) 
French v. Andrade (6 T. R. 582) 



201 
515 
518 
2'M 
466, 530 
428, 490, 
499 
10,47 
182 
151 
177 
99 
123 
180 
70, 279 
500 



417 
57 
71 

438 



V. Chase (6 Me. 166) 
V. Fenn (3 Douf?. 257) 
V Price (24 Pick. 13) 
c. Rowe (15 la. 5()3) 
V. Styring (2 C. B. n. 



346, 446, 498 

500 

63, 66 

125, 163 

8. 357) 67, 

252 

94 

16 

84 

525 



Frentress v. Marble (2 Greene 563) 
Fridge v. State (3 G. & J. 103) 
F>ien<l v. Duryee (17 Fla. Ill) 
Frigerio v. Crottes (20 La. Ann. 351) 
Frink v. Ryan (4 111. 322) 220, 262, 265 
Fripp ('. Williams (14 S. C. 502) 162 

Frisbie v. Larned (21 Wend. 450) 483 
Fronime v. Jones (13 la. 474) 131 

Fromont v. Coupland (2 Bing. 170) 248, 

262, 519 
Frost V. Moulton (21 Beav. 596) 128, 373 

V. Wolf (77 Tex. 455, 14 S. W. 

440) 367 

Fry, Ex parte (1 (^ilyn & J. 96) 428, 490 

• y. Bennett (4 Duer 247) 322 

y. Potter (12 R. I. 542) 249 

Fuch V. Blakiston (15 Alb. L. J. 288) 623 



Fuldo ('. Griffin ( 1 F. & F. 147) 
FuUagar v. Clark (18 Ves. 481) 
Fullam V. Abrahams (29 Kas. 725) 
Fuller r. Ferguson (26 Cal. 546) 

V. McHenry (53 N. W. 896) 

V. Percival (126 Mass. 381) 

Fulmer's Appeal (90 Pa. 143) 



40 

514 

336 

24, 36 

24 

168 

193, 199, 

222 

Fulton V. Central Bank (92 Pa. 112) 168, 

378 
331 



V. Huglies (63 Miss. 61) 

V. Loughlin (118 Ind. 286, 20 

N. E. 796) 131 

I'. Williams (U Cash. 108) 246 

Furber v. Carter (11 Humph. 271) 77, 103 
Furlong v. Bartlett (21 Pick. 401) 304 

Furnival v. Weston (7 J. B. Moore 

356) 142, 145, 307 

Furze v. Sharwood (2 Q. B. 388) 114 



G. 

Gable v. Williams (59 Md. 46) 



136, 284, 
435, 480 
5, 6 



Gabriel v. Evill (9 M. & W. 297) 
Gage V. Parmalee (87 111. 329) 

V. Rollins (10 Met. 348) 

Gail V. Leckie (2 Stark. 107) 
Gainsborough v. Stork (Barn. Ch. 

312) 207.215,511 

Galbraith v. Gedge (16 B. Men. 631) 361, 

362 

V. Moore (2 Watts 86) 

Gale V. Leckie (2 Stark. 107) 

V. Miller (44 Barb. 420) 

V. Reed (8 East 80) 

V SuUoway (62 N. H. 67) 

Galigher v. Lockhart (11 Mont. 109, 

27 Pac. 446) 
Gallagher's Appeal (114 Pa. 353, 7 

Atl. 237) 

Galsworthy v. Strutt (1 Ex. 659) 224, 225 

Gait ('. Calland (7 Leigh 594) 94, 508 

Galway v. Matthew ( 1 Camp. 403) 79, 

111, 113, 183,387,402 

V. (10 East 264) 79,80,387, 

402 
Gamble v. Grimes (2 Ind. 392) 
Gannett v. Cunningham (34 Me. 56) 
Gano y. Samuel (14 Ohio 592) 184 



526 
312 
252 



254 
210 
87 
401 
525 

393 

332 



176 
380 
185, 
206 



Gansevoort v. Williams (14 Wend. 

133) 96, 99, 100, 172, 173, 174, 184 

Ganson v. Lathrop (25 Barb. 455) 184, 

331 
Garbett v. Veale (5 Q. B. 408) 344 

Gardenhire v. Smitli (39 Ark. 280) 53 

Gardiner v. Childs (8 C. & P. 345) 13, 101 
Gardner v. Baker (25 la. 34.3) 144 

v. Cleveland (9 Pick. 334) 66 

V. Conn (34 Oh. St. 187) 168, 380, 

400 

V. Northwestern Co. (52 III. 367) 69 

Gardom, Ex parte (15 Ves. 286) 142 

Gardon v. Slowden (12 CI. & F. 237) 8 

Garland, Ex parte (10 Ves. 110) 65, 450, 

451, 452, 503 

I'. Agee (7 Leigh 362) 162 

V. Davidson (3 Munf. 189) 150 

Hickey (75 Wis. 178, 43 N. W. 



832) 



Jaeomb (L. R. 8 Ex. 218) 
Noble (IJ B. Moore 187) 



146 
82 
148, 
320 
550 



Garrard v. Hardey (5 M. & G. 471) 
Garretson v. Weaver (3 Edw. Ch. 

385) 293, 295, .371, 456 

Garrett v. Handley (3 B. & C. 462) 312 

V. (4 B. & C. 664) 146, 316, 317 

V. Miss. & A. R. R. (1 Freem. 

Ch. 70) 289 

V. Robinson (80 Ala. 192) 525 

V. Taylor (1 Esp. 117) 313 

Gartside Cole Co. v. Maxwell (22 F. R. 

197) 60 



XXXVl 



TABLE OF CASES. 



Garvin v. Paul (47 N. H. 158) 339, 340 
Gass V. N. Y. P. & B. K. R. (99 Mass. 

220) 65 

V. Stimson (3 Sumn. 98) 425 

Gassie, Succession of (42 La. Ann. 

239, 7 So. 454) 508 

Gaston v. Kellogg (91 Mo. 104, 3 S. 

W. 589) 201 
Gates V. Bennett (33 Ark. 475) 134 
V. Fisk (45 Mich. 522, 8 N 



558) 



Graham (12 Wend. 53) 

V. Hughes (44 Wis. 332) 

V. Pollock (5 Jones 344) 

V. Watson (54 Mo. 585) 

Gathright v. Burke (101 Ind. 590) 
Gavin v. Walker (14 Lea (543) 
Gay V. Bovven (8 Met. 100) 

V. Jolinson (.32 N. H. 167) 

V. Seibold (97 N. Y. 472) 

V. Waltnian (89 Pa. 453) 

Gaylord v. Imhoff (26 Oh. St. 317) 



W. 

160, 101 

154, 155 

95, 414 

307 

90 

405 

74,87 



162 
22 
228 
149 
335, 
491 

Geddes v. Wallace (2 Bligh 270) 60, 107, 

269, 518 
Geerv v. Cockroft (33 N. Y. Super. 

140) 97 

Geise V. Ragan (80 Ga. 732, 6 S. E. 

697) 254 

Cellar, Ex parte (1 Rose 297) 59, 73, 133 
George (■. Claggett (7 T. R. 361) 272 

Geortner v. Trustees, &c. (2 Barb. 

625) 295, 381 

Gerard r. Basse (1 Dall. 119) 150, 155 

V. Bates (124 III. 150. 16 N. E. 

258) 343 

Gering, Ex parte (1 Ves. Jr. 168) 503 

German Mining Co., In re (27 Eng. 
L. & Eq. 158) 200, 203 

, (4 De G. M. & G. 19) 200, 202 

Gernon v Hoyt (90 N. Y. 631) 114 

Gervais v. Edwards (2 Dr. & W. 80) 278 
Gestons v. Brooke (Cowp. 793) 62 

Cetchell V. Foster (106 Mass. 42) 55 

V. Heald (7 Me. 26) 159 

Gibbons v. Wilcox (2 Stark. 43) 48, 60, 69 
Gibbs i\ Baltimore Gas Co. (130U S 



396) 

r. Bryant (1 Pick. 121) 

V. Merrill (3 Taunt. 307) 

Gibson v. Lupton (9 Bing. 297) 



566, 567 

76 

22 

48, 53, 

54,88 

V. Minet (1 C. & P. 247) 482 

V. Moore (6 N. H. 547) 255, 264, 265 

r. Smith (31 Neb. 354, 47 N. W. 

1052) 46, 51 

V. Stevens (7 N. H. 352) 320, 325, 343 

V. Stone (43 Barb. 285) 45 

V. Warden (14 Wall. 244) 150 

Giddings v. Palmer (107 Mass. 269) 328 
Giffin V. Ashby (2 C. & K. 139) 157 

Gilbert v. Dickerson (7 Wend. 449) 304 
Gilchrist ?•. Brande (58 Wis. 184, 15 

N. W. 818) 87, 143, 404 

Gildersleeve v. :Mahony (5 Duer 383) 180 



Gilfillan v. Henderson (2 CI. & F. 1) 15 
Gill V. Ferris (82 Mo. 156) 60, 111 

V. Geyer (15 Uhio 399) 221 

V. Kuhn (0 S. & R. 333) 47, 107, 263 

V. Lattimore (9 Lea 381 ) 335 

Gillaspy v. Peck (46 la. 461) 336 

Gillbank v. Stephenson (31 Wis. 592) 58 
Gille V. Hunt (25 Minn. 357, 29 N. W. 

2) 351 

Gillespie v. Hamilton (3 Madd. 251) 432 
Gillett V. Hall (13 Conn. 426) 507, 508 

V. Thornton (L. R. 19 Eq. 599) 213 

Gillighan v. Tebbetts (33 Me. 360) 163 
Gilly V. Singleton (3 Litt. 249) 164 

Giiman v. Cunningham (42 Me. 98) 53 

V. Vaughan (44 Wis. 646) 526 

Gilmore v. Black (11 Me. 485) 53, 127, 

138, 555 
Gilpin V. Enderbey (5 B. & Aid. 

954) 47, 51 

V. Temple (4 Harr. 1) 69 

Ginesi v. Cooper (14 Ch. D. 596) 237 

Given v. Albert (5 W. & S. 333) 48, 74, 

444 
Glasscock v. Smith (25 Ala. 474) 382 

Glassington v. Thwaites (1 Sim. & St. 

124) 70, 194, 197, 198, 216, 217, 220, 
285, 286, 294, 510 
Gleason v. Chicago, M. & S. P. R. R. 

(43 N. W. 517) 196 

V. Clark (9 Cow. 57) 163 

V. McKay (134 Mass. 419) 501 

V. Van Aernam (9 Ore. 343) 512 

i: White (34 Cal. 258) 434 

Glen V. Arnold (56 Cal. 631) 470 

Glossop V. Colman (1 Stark. 25) 17, 109 
Glover v. Austin (6 Pick. 209) 320 

V. Tuck (24 Wend. 153) 211, 257 

Glyn V. Caulfield (15 Jur. 807) 520 
Goble V. Howard (12 Ohio 165) 260 
Goddard v. Bulow (1 N. & McC. 45) 439 
V. Hodges ( 1 Cr. & M. 33, 3 Tvrw. 

209) 10, 128, 248,' 252, 553 

V. Ingram (3 Q. B. 839) 157, 158, 162 

V. Lyman ( 14 Pick. 268) 311 

V. Pratt (16 Pick. 412) 5, 29, 58, 375 

406, 410, 412 
Godfrey v. Browning (2 Ves. Sen. 33) 

431 

V. Macauley (1 Peake 155) 412 

V. Templeton (86 Tenn. 161, 

6S. W. 47) 201 

V. TurnbuU (1 Esp. 371) 402, 412 

V. White (43 Mich. 171, 5 N. W. 

243) 201, 361 

Goembel v. Arnctt (100 111. 34) 332 

Goepper v. Kinsinger (39 Oh. St. 429) 

352 
Goesele v. Bimeler (14 How. 589) 37 

Gold V. Canham (1 Cas. Ch. 311, 

2 Swanst. 325) 287, 516 

Golden State & M. I. W. r. Davidson 

(73 Cal. 389, 15 Pac. 20) 366 

Goldsmid v. Cazenove (7 H. L. Cas. 

785) 487 



TABLE OF CASES. 



XXXVll 



Goldsmith v. Eichold (94 Ala. 116, 
10 So. bO) 4, 204, 331 

V. Sachs (17 F. R. 726, 8 Savvy. 

110) 12, 259 

Gomersall v. Gomersall (14 All. 60) 248 
Good, J'! X parte (5 Ch. D. 40) 57, 144 

Goodbar v. Gary (16 K. K. old) 99, 332 
Goodburn v. Stevens (5 Gill 1) 350, 361, 

362 
Goodcliap V. Roberts (14 Ch. D. 49) 203 
Goode V. Harrison (5 B. & Aid. 147) 

10, 19, 103, 108 

V. Linecurn (1 How. Miss. 281) 

147 

y. McCartney (10 Tex. 193) 60,98, 

179, 274 
Goodenow ;;. Jones (75 111. 48) 429 

Gooding v. Morgan (37 Me. 419) 

483 
Goodman, Ex parte (3 >radd. 373) 485 

('. W'liitconib (1 Jac. & W. 674) 

199, 278, 284, 285, 293, 295, 2'JO, 455, 
456, 457. 510 

V. White (25 Miss. 103) 82, 147 

Goodnow V. Smith (18 Pick. 41G) 144 

Goodsell '•. Myers (3 Wend. 479) 19 

Goodspeed v Wiard Plow Co. (45 

Mich. 322, 7 N. W. 902) 380, 400 

Goodtitle V. Woodward (3 B. & Aid. 



689) 
Goodwin V. Parton (41 L. T. Rep. 91, 

42 L. T. Rep. 568) 
Gordon v. Buchanan (5 Yerg. 71) 

t'. Cannon (18 Gratt. 387) 

V. Ellis (7 M. &G. 607) 

r. (2 C. B. 821) 

V. Freeman (11 111. 14) 

c. Gordon (3 Swanst. 476) 

'■. Kennedy (36 la. 167) 

Gorham v, Thompson (Peake 42) 



165 



Gorman v Russell (18 Cal. 688) 



159 
147 
135 
179, 274 
116, 272 
386, 392 
511 
327 
406, 
411 
549 



Goss i: Duiresnoy (Davies B. L. 371) 49y 



510 
550 



19 



38 



335 
419 
144 
234, 235 
559, 564 
394 



Gossini v. Terazzo (66 Cal. 545) 

Gott V. Dinsraore (HI Mass. 45) 

Goudv V. Werbe (117 Ind. 154, 

N. E. 764) 
Gougli V. Davies (4 Price 200) 
Gould V. Gould (4 N. H. 173) 

r. (6 Wend. 263) 

>•. Head (38 F. R. 886) 

>■. Horner (12 Barb. 60l) 

Guuldmg, Ex parte (2 Glyu & J. 118) 

96, 175 

/•. Bain (4 Sandf. 716) 294, 297 

Gouthwaite v. Duckworth (12 East 

421) 73,102,229 

Gowan v. Jackson (20 Johns. 170) 165 

r. Jeffries (2 Aslim. 296) 294, 295, 

297, 300, 371, 391, 456, 463 
Gower v. Saltmarsh (11 Mo. 271) 225 

Grabenheimer v. Rindskoff (64 Te.x. 

49) 104, 475 
Grace v. Shurter (1 Wend. 148) 444 
V. Smith (2 W. Bl. 998) 39 



Graeflf v. Hitchman (5 Watts 454) 74, 89, 

114, 181 
Grafton v. United States (3 Story 640) 76 
Grafton Bank v. Moore (13 N. H. yt») 

69, 164 
Graham v Harris (5 G. & J. 489) 270 

V. Holt (3 Ired. 300) 249, 262, 264 

V. Hope (Peake 154) 406, 412 

V. Robertson (2 T. K. 282) 253, 254, 

266, 268, 40« 

v. Selover (59 Barb. 313) 160 

V. Taggart (11 Atl. 652) yy 

L\ Thornton (9 So. 292) 254 

V. Wichels (1 Cr. & M. 188) 385 

Gram c. Cadwell (5 Cow. 489) 78, 97, 178 

V. Seton (1 Hall 262) 151, 153 

Grant, In re (5 Law Rep. 303) 485 

0. Hawkes (Chit. Bills 42) 168, 179, 

206 

r. Jackson (Peake 203) 163 

V. Watts (10 Paige 82) 12 

Grasselli u Lowden (11 Oh. St. 349) 401 

Gratz V. Bayard (1 1 S. & R. 41) 127, 194, 

286, 300, 432, 455 

Graves v. Boston Ins. Co. (2 Crancli 

419) 146, 318 

V. Hall (32 Tex. 665) 135 

V. Kellenberger (51 Ind. 66) 170 

V. Key (3 B. & Ad. 318) 492 

V. Merry (6 Cow. 701) 403, 405 

V. Sawcer (T Raym. 15) 

Gray, Ex parte (4 Deac & Ch. 778) 
, In re (HI N. Y. 404, 18 N. E. 

719) 

V. Brown (22 Ala. 262) 

V Chiswell (9 Ves. 118) 

Church (84 Ga. 125, 10 S. E. 



303 

488 



478, 487 
143 



330 



539) 



118 
117 
223 
543, 547 
163 



Cropper (1 All. 337) 

V. Crosby (18 Johns 219) 

V. Gibson (6 Midi. 300) 

V. Hodson (1 Esp. 135) 

c. Palmer (9 Cal. 616) 349, 356, 359 

V. Portland Bank (3 Mass. 364) 221 

V. Smith (43 Ch. D 208) 242, 243, 

360 

V. Ward (18 111. 32) 82, 84 

r. Washington (Cooke 321) 511 

V. Wilson "(4 Watts 39) 220 

Grazebrook, Ex parte (2 Deac. & Ch. 

186) 473 

V. McCreedie (9 Wend. 437) 155 

Greathouse »'. Greathouse (60 Tex. 

.597) 254 

Greatrix v. Greatrix (1 De G. & S. 

692) 286 

Greddes v Wallace (2 Bligh 295) 207 

Greeley v. Wyeth (10 N. H. 15) 96, 97, 

140,178, 179, 274,312 

Green r. Barrett (1 Sim. 45) 11, 277, 455 

V. Beals (2 Caines 2-54) 150, 155 

V. Beesley (2 Bing. N. C 108) 57 

V. Bostwick (1 Sandf. Ch. 185) 302 

V. Bradfield (1 C. & K. 454) 490 

V. Briggs (6 Hare 395) 66 



XXXVlll 



TABLE OF CASES. 



Green v. Chapman (27 Vt. 236) 270, 307 

(• Drakin (2 Stark. 347) 96, 174 

V. Gieen (1 Ohio 24-4) 354, 'SCI 

V Tanner (8 Met. 411) »y, 181 

I'. Waco State Bank (78 Tex. 2) 392 

c. Waring (1 W. Bl 475) ^02 

Greene v. Butterwortli (45 N. J. Eq. 

738, 17 All. 949) 445 

I'. Greene (1 Ohio 244) 137, 3.io, 

302 
Greenleaf v. Quincy (12 Me. 11 ) 100 

Greenslade v. Dower (7 B. & C. 635) 82, 

84, 147 
Green wald v. Raster (86 Pa. 45) 
Greenwood v. Marvin (HI N. Y. 423, 

19 N. E. 228) 
Greer c Ferguson (19 S. W. 966) 
Gregg V. Brower (07 111. 525) 
c. Hord (129 111. 613, 22 N. E. 

528) 

I'. James (1 111. 107) 

Gregg Township v. Half-Moon Town- 

siiip (2 Watts 342) 55 

Gregory o. Bailey (4 Harr. 256) 273 

I'.'Forrester (McC Ch. 318) 512 

V. Gregory (Coop 201,Jac. 631) 514 



144 

366 
368 
251 

212 
144 



i\ Menefee (83 Mo 413) 

f. Paul (15 Mass. 31) 

V. Pierce (4 Met. 478) 

Grellier v. Neale (Peake 146) 
Gridiey v. Dole (4 N. Y. 486) 



201 

23 

23 

272 

255, 208, 

508 

Grieff v. Boudousquie (18 La. Ann. 

631) 72 

Grier v. Hood (25 Pa. 430) 155, 156 

Griffin v. Doe (12 Ala. 783) 6 

Griffith V. Buck (13 Md. 102) 328, 338 

r. Buffum (22 Vt 181) 58, 74, 102 

V. Chew (8 S. & R 30) 270, 307 

V. Wilbing (3 Binn. 317) 507 

Grigsbv v. Nance (3 Ala. 347) 255 

Grill, E.r parte (Cooke B. L. 503) 497 

Grim's Appeal (105 Pa. 375) 433, 434, 

43ti 
Grinnan v. Baton Rouge Mills Co. 

(7 La. Ann. 638) 408 

Gri.«soni I'. Moore (106 Ind. 296, 6 N. 

E, 029) 363 

Griswold v. Haven (25 N. Y. 595) 125, 161 

r. Waddington (15 Johns. 57) 10,26, 

12'.t, 403, 432, 459, 555 

(;. (16 Johns. 438) 26, 309, 310, 

390, 403, 463, 501 
Grosvenor, Er parte (14 Ves. 589) 503 

r. Lloyd (1 Met. 19) 74, 410 

Groth 1-. Payment (79 Mich. 290, 44 

N. W. 611) 457 

Grove v. Dubois (1 T. R. 112) 318 

Grover r Hall (3 H. & J. 43) 515 

V. Hugell (3 Russ. 432) 289 

Grow V Seligman (47 Mich. 607) 239 

Grozier v. Atwood (4 Pick. 234) 61 

Grand v. Van Vlack (69 III. 478) 118 

Gruner r. Slacken (39 La. Ann. 1076, 
3 So. 338) 206 



Gae'ringer v. His Creditors (33 

Ann. 1279) 
Guice V. Thornton (76 Ala. 466) 



La. 

476 

12, 89, 

98 

Guidon v. Robson (2 Camp. 302) 77, 107, 

108, 109, 273, 316, 492 

Guild V. Welch (119 Mass. 257) 87 

Guillon V. Peterson (9 Phila. 225) 120, 123, 

167 

,.. (89 Pa. 163) 123 

Gulick V. Gulick (2 Green 578) 260, 262 
Gunn V. Central R. R. (74 Ga. 509) 27 
Gunter v. Williams (40 Ala. 561) 93 

Guptil V. McFee (9 Kas. 30) 335 

Gurney, Ex parte (3 Mont. D. & D. 
541) 494 

V. Evans (3 H. & N 122) 103 

Guyther v. Pettijohn (6 Ired. 388) 303 
Gwinn v. Rooker (24 Mo. 290) 151 

Gwynn v. Gwynn (27 S. C. 527, 4 S. E. 

229) 23, 24 

G Wynne v. Estes (14 Lea 662) 434 

Gyger's Appeal (62 Pa. 73) 203, 526 



H. 



Haas V. Shaw (91 Ind. 384) 24 

Habershon v. Blurton (1 De G & S. 

121) 342,375,391,392 

Hacker v. Shepherd (2 Chitty 652) 469 
Hackett v. Multnomah Rv. (12 Ore. 

124, 6 Pac. 659) 27 
V. Stanley (115 N. Y. 625, 22 N. 

E. 745) 44 
Hackley v. Patrick (3 Johns. 536) 163 
Haddock v. Crocheron (32 Tex. 276) 160 
1-. Grinnell Mfg. Co. (109 Pa. 372, 

1 At!. 174) 543 

Hadfield r. Jameson (2 Munf. 53) 74, 

117, 124 
llagar v. Mounts (3 Blackf. 57, 261) 97, 

172 

V. Stone (20 Vt. 106) 272 

Hage V Campbell (78 Wis. 572, 47 N. 

W. 179) 98, 134 

Hagedorn v. Oliverson (2 M. & S. 

426) 318 

Haggart v. Morgan (4 Sandf. 198) 220 
Haggerty v. Foster (103 Mass. 17) 538 

V. Taylor (10 Paige 261 ) 544, 545 

Hague V. Rolleston (4 Burr. 2174) 129, 
391, 463,464,479 
Hahlo V. Mayer (102 Mo. 93, 13 S. W. 

804) 104 

Haldeman v. Bank of Middleton (28 

Pa. 440) 172, 187 

Halderman v. Halderman (1 Hempst. 

558) 264 

Hale V. Gerish (8 N H 374) 19 

V. Hale (4 Beav. .369) 295, 456 

y. (12 Beav. 414, 3 McN. & 

G. 79) 294 

V. Henrie (2 Watts 145) 369 

V. Wilson (112 Mass. 444) 805 



TABLE OF CASES. 



XXXIX 



Haley v. Case (142 Mass. 316, 7 X. E. 

877) 
Rallied v. Marke (3 Swanst. 444) 
Halifax, Ex parte (2 Mont. U. & D. 

544) 
Haipenny v. Pennock (33 U. C. Q. B. 

229) 
Halseliam v. Young ;5 Q B 833) 
Halsey v. Norton (45 Miss. 703) 463, 

V Whitney (4 Mas. 200) 150, 

Halstead v. Sliepard (23 Ala. 558) 97, 

132, 
HaUted c. Sclimelzel (17 Johns. 80) 

Halsy V Fairbanks (4 Mass. 206) 
Hall, At parte ('J Ves. 341») 478, 

, (1 Kose 2) 

V. Bainbridge ( I M. & G. 42) 

('. Barrows (33 L J. Ch. 204) 

V. Clagett (48 Md. 223) 231, 

V. Cook (69 Ala »7) 

i: Digbv (4 Bro. P. C 224) 

>•. Franklin (3 .M & \V. 259) 

r. Hall (12 Beav. 414) 295, 396, 

457, 
r. (2 McC. Cli. 302) 327, 



145, 



113, 
257, 



/■. Kimball (77 Hi. 101) 

c. Lanning (91 U S 160) 

V. Leigh (8 Crancli 50; 

r. Kichanlson (20 Atl. 978) 

r. Smith (1 B. & C 407) 

r. Stewart (12 Pa. 213) 

Hall's Appeal (60 Fa. 458) 
Hallack r. March (25 111. 48) 
Hallett r. Cumston (110 Mass. 29) 47, 

r. Dowdall (18 Q. B 2) 

r. Hallett (2 Paige 432) 

Hallidav i: Doggett (6 Pick. 359) 

316, 

r. Ward (3 Camp. 32) 

Halls V Coe (4 McC. 130) 142 178, 
Hallsted i-. Coleman (143 Pa. 352, 22 

Atl. 977) 
Hambidge r. De la Croue'e (3 C. B 

744) 148, 

Haniblin v. Dinnoford (2 Edw. Ch. 

52<J) 
Hamer, Ex parte (1 Rose 321) 
Hamil v. Flamil (27 Md. 679) 
Hamill v. Purvis (2 Barr 177) 
r. Stokes (Uaniell 20, 4 Price 

161) 
Hamilton, In re (1 F. R. 800) 

V. Benbiiry (2 Hayw. 385) 

I--. Cummings (1 Joiins Ch 517) 



295, 



276, 
29, 



125 
511 

494 

143 

185 
469 
152 
131, 
276 

58, 
262 
307 
479 
146 
149 
237, 
244 
248 
333 

68 

15 
456, 
458 
330, 
444 
271 
148 

54 
331 
183 
508 
2:-i8 
147 
242 
552 
520 
512, 
317 
157 
179 

68 

155 

278 
480 
465 
185 

530 
472 
420 
276, 

289 



V. Halpin (68 Miss. 99, 8 So 739) 37. 



Hamilton (18 Pa. 20) 262, 

Seaman (1 Ind 185) 379, 

Stokes (4 Price 161) 
Summers (12 B. Mon. 11) 



363 
508 
381 
455 
163, 
170 



Hamilton c. Van Rensselaer (43 N. Y. 244) 

203 
Hammatt v. VVyman (9 Mass. 139) 384 
Ilanimoii r. Roll (March 202) 143 

Hammond, Ex jjaile (L. li. 16 Eq. 

614) 470 

y. Douglas (5 Ves 539) 240, 438, 

441, 443,501 

V. Hammond (20 Ga. 556) 249 

Hamper, Ex parte (17 Ves. 403) 40, 46, 
56, 272, 498, 505 
Hamper's Appeal (51 Mich. 71, 16 

N. VV 236) 60 

Hanchett v. Gardner (138 111. 571, 28 

N. E. 788) 134 

Hand >j. Armstrong ( 18 la. 324) 203 

Haney Mfg C<>. r. Perkins (78 Mich. 

1, 4.; N. \V. 1073) 125 

Haiiff c. Howard (3 Jones Eq. 440) 361, 

367, 369 
Hanford i'. Prouty ( 133 111. 339, 24 

N E 565) 332 

Hankey r. Becht (25 Minn 212) 56 

V. Garrett (1 Ves. 236) 123, 489 

Hannigan v. Allen (127 N Y. 639, 27 

N. E. 402) 429 

Hanning u. Ferrers (1 Eq Cas. Abr. 

356) 492 

Hanover Nat. Bank v. Klein (64 Miss. 

141) 332 

Hanson ?•. Metcalf (46 Minn. 25, 48 

N. W. 441) 136, 364 

Hapgood V. Cornwell (48 111. 64) 332 

Haralson v. Campbell (63Ala. 278) 333, 334 
Harbster's Appeal (125 Pa. 1, 17 Atl. 

204) 439 

Harding r. Butler (156 Mass. 34, 30 

N. E. 168) 159 

i: Fo.xcroft (6 Me. 76) 48, 54, 66 

i: Glover (18 Ves. 281) 294, 295 

V. Norfolk Mfg. Co. (80 Va. 



Hardy 
403) 



r. Sproule (29 Me. 258) 

c. Waters (38 Me. 450) 

Hare, Ex parte (2 Mont. & A. 478) 

y. Waring (3 M. & W. 362) 

Harford r. Street (46 la 594) 
Hargrave v. Conroy (4 Green 281 ) 
Hargreaves, Ex parte (1 Cox 440) 



143, 366 
66 



Hargroves >•. Cooke (15 Ga. 221) 
Harman v. Johnson (2 E. &. B. 61) 
Harmon !• Clark (13 Gray 114) 



17 
490 
555 
334 

57 
474, 
499 
420 

82 
481 



Harper i: Fox (7 W. & S. 142) 
1-. Lamping (33 Cal. 641) 



148, 155 
123, 420, 
454 



'•, Ravmond (3 Bosw. 29, 7 Abb. 

Pr. 142)' 555 

r. Wrigley (48 Ga. 493) 171 

Harries v. Jamieson (5 T. R. 556) 414 
Harrington >• Churciiward (29 L. J. 

N. s. Ch. 521) 47 

r. Higham (13 Barb. 660) 148, 149 

Harris, Er parte (2 Ves. & B. 214, 1 

Rose 129, 437) 489, 491, 497, 498 



xl 



TABLE OF CASES. 



Harris, Ex parte (1 Madd. 583) 78, 79, 
88, 383, 500 

, Succession of (39 La. Ann. 443, 

2 So. 3i)) 222 

V. Baltimore (73 Md. 22, 20 Atl. 



Ill) 



84 



205 
542 

384 
478 
356 

18 
164 

66 



512 

109 



Crary (67 Tex. 383, 3 S. W 

316) 29, 103 

V. Farwell (13 Beav. 403) 330 

V. (15 Beav. 31) 96,387,416, 

417, 419, 482 
V. Harris (153 Mass. 439, 26 N. E. 

1117) 352, 359 

V. (39 N. H. 45) 248 

V. Lindsay (4 Wash. C. C. 98, 

271) 95, 414, 410, 417, 418, 484 
V. Lloyd (11 Mont. 390, 28 Pac 

736) 

V. Murray (28 N. Y. 574) 

V. North Devon Ry. (20 Beav 

384) 

V. Peabody (73 Me. 262) 

V. Pollard (3 P. Wms. 348) 

V. Wall (1 Ex. 122) 

V. Wilson (7 Wend. 57) 

Harrison, Ex parte (2 Rose 70) 

V. Arniitage (4 Madd. 143) 280, 281, 

293, 457, 508, 510 

. V. Bevington (8 C. & P. 708) 321 

V. Clare (2 Johns. 449) 143 

V. Dewey (46 Mich. 173, 9 N. W. 

152) 

V. Fitzhenry (3 Esp. 238) 

0. Gardner (2 Madd. 198) 237, 239, 

240, 287, 441 

V, Heathorn (0 M. & G. 81) 550, 554, 

556 

V. Jackson (7 T. R. 208) 145, 150, 

152, 167 

V. Sterry (5Cranch 289) 131, 134, 

135, 153, 408, 476, 479 

V. Tennant (21 Beav 482) 371, 456, 

462 

Harry man v. Roberts (52 Md 64) 165 

Hart V. Alexander (2 M. & W. 484) 95, 

320, 406, 407, 416, 417, 419, 482, 484, 485 

V. (7C. &P. 746) 387 

r. Clark (19 Beav. 349) 298 

r. Clarke (0 De G. M. & G. 232) 390 

V. Fitzgerald (2 Mass. 509) 320 

V. Kelley (83 Pa. 286) 61 

V. Palmer (12 Wend. 523) 164 

y. Tomlinson (2 Vt. 101) 427 

V. Withers (1 Barr 285) 94, 150, 154 

Hartford Ins. Co. v. Ross (23 Ind. 

179) 230 

Hartlev v Kirlin (45 Pa. 49) 427 

v'. Wharton (11 A. & E. 934) 18 

1-. White (94 Pa. 31) 98,3-33 

Hartman v. Woehr (3 Green 383) 374 
Hartness v. Thompson (5 Johns. 160) 22 
r. Wallace (106 N. C. 427, 11 

S. E. 259) 97 

Hartridge v. Rockwell (R. M. Charlt. 

264) 291 



Hartung v. Siccardi (3 E. D Smith 

560) 179 

Harvey v. Childs (28 Oh. St. 319) 44, 46, 

51,90 

V. Crickett (5 M. & S. 336) 250, 391, 

463, 464, 471 

V. Varney (98 Mass. 118) 215, 276, 

323, 506 

V. (104 Mass. 430) 296,523 

Harwood i'. Edwards (Gow Part. 65) 

145 
Haskell v. Adams (7 Pick 59) 261, 208 
Haskins v Warren (115 Mass. 514) 57 
Haslet V. Street (2 McC. 310) 145 

Haslett V. Witherspoon (2 Rich. Eq. 

395) 375 

Hassels r. Simpson (Doug. 92) 470 

Hastings v. Hopkinson (28 Vt. 108) 545 
Hastings Nat. Bank v. Hibbard (48 

Mich. 452, 12 N. W. 651) 114 
Hatch V. Crawford (2 Port. 54) 151 
Hatcher v. Seaton (2 M. & W. 47) 257 
Hatchett v. Blanton (72 Ala. 423) 352, 
353, 354, 427 
Hathaway v. Haskell (9 Pick. 42) 159 
r. State Ins. Co. (64 la. 229, 20 

N. W. 164) 236 

Hatheway's Appeal (52 Mich. 112) 163 
Haughey v. Slrickler (2 W. & S 411) 68 
Haupf V. Howard (3 Jones Eq. 440) 7 

Haven v. White (39 111. 509) 270 

Havens v. Hussey (5 Paige 31) 134, 135 
Haviland v. Chace (39 Barb 283) 539 

Hawes r. Dunton (1 Bail. 146) 169 

V. 'I'illinghast (1 Gray 289) 67 

V. Waltham (18 Pick. 451) 345 

Hawken v Bourne (8 M. & W. 703) 140, 

142, 206 

Hartz V. Schrader (8 Ves. 317) 2b8, 291, 

292, 300, 430 

Hawkins v. Appleby (2 Sandf. 421) 1 16 

V. Capron (24 Atl. 400) 434 

V. Hawkins (4 Jur. n. s. 1044) 377 

V. Lee (8 Lea 42) 103 

Hawkshaw v. Parkins (2 Swanst, 539) 152. 

154, 290 
Hawley v Campbell (62 Cal. 442) 470 

V. Cramer (4 Cow. 717) 273, 409 

V. Keeler (02 Barb. 231) 57 

Hawn V. Land & Water Co. (74 Cal. 

418, 16 Pac 196) 378 

Hawtayne v. Bourne (7 M. & W 595) 82 
Hay, Ex parte (15 Ves. 4) 485, 488 

V. Fairbairn (2 B. & Aid. 193) 493 

V. Mair (Ross Part. 639) 410 

Haycock v. Williams (54 Ark. 384, 16 

S. W. 3) 44, 53, 60 

Hayden. Ex parte (1 Bro Ch. 454) 329 

;;. Cretcher (75 Ind. 108) 168 

Hayes v. Bement (3 Sandf. 394) 540, 541 

542 

V. Flowers (25 Miss 168) 257 

V. Hayes (19 Atl. 571) 223 

(• Hever (3 Sandf. 293) 1.35, 542 

V. — - (4 Sandf. Ch. 485) 292, 295 



TABLE OF CASES, 



Xli 



Hayes v. Knox ^41 Mich. 529, 2 N. 
W. 670) 429 

L\ Ueese (34 Barb. 151) 508 

Ilavman, Er parte (8 Ch. D. 11) 475 

Haynes v. Brooks (IIG N. Y. 487, 22 

N. E. 1083) 136 
V. Short (88 Ala. 562, 7 So. 157) 213, 

306, 434 
Haythorn v. Lawson (3 C & P. 190) 320, 

322 
Hayward v. French (12 Gray 453) 87 

V. Harmon (17 111. 477) 164, 413 

Hazard v. Caswell (93 N. Y. 259) 244 

('. Hazard ( 1 Story 371) 47, 60 

Heald y. Warren (22 Vt. 410) 90 

Heane v. Rogers (9 B. & C. 580) 492 

Heap y. Dobson ( 15 C. B. n. s. 460) 170 
Heard v. Bowers (23 Pick. 4-55) 223, 224 
Heartt v. Corning (3 Paige 566) 215, 511, 

619, 520 

V. Rankin (41 la. 35) 354 

Heath, Ex parte (4 Jur. 28) 494 

V. Hall (4 Taunt. 326) 470 

V. Hubbard (4 East 110) 303 

r. Percival (1 P. Wms. 682, 1 Str. 

403) 387 

r. Sansom (2 B. & Ad. 291) 96, 179 

V. (4 B. & Ad. 172) 69, 375, 391, 

410, 462 

('. Waters (40 Mich. 457) 202, 4.35, .527 

Heathcote v. Hulme (1 Jac. & W. 722) 123, 

438 
Heaton, Ex parte (Buck 386) 123 

Heckert v. Fegely (6 W. & S. 139) 45, 63 
Heckman v. Messinger (49 Pa. 465) 477 
Hcdderly, Ex parte (2 Mont. D. & D. 

487) 485 

Hedge's Appeal (63 Pa. 273) 58, 550 

Hedges r. Armistead (60 Tex. 276) 334 
Hedley v. Bainhridge (3 Q. B. 316) 82, 84 



Heenan v. Nasli (8 Minn. 407) 
Hefferman v. Brenham (1 La. Ann. 

146) 
Heffron v. Hanaford (40 Mich. 305) 
Heflebower v. Buck (64 Md. 15) 
Hefner v. Palmer (67 III 161) 
Heimstreet v. Howland (5 Uen. 68) 



111 

35 
83 
293 
104 
45, 
46 
223 



Hellebush v. Cougldin (37 F. R. 294) 
Heline v. Smith (7 Bing. 714) 2.52, 254 
Heliuore i'. Smith (35 Cb. I). 436) 204, 237 
IleLsby v. Mears (5 B & C. 504, 8 D. 

& R. 289) 142, 427 

Hembree v. Blackburn (16 Ore. 153, 

19 Pac. 73) 134 

Henderson, Ex parte (4 Ves. 163) 21 

V. Barbee (6 Blackf. 28) 151 

/•. Hudson (1 Munf. 510) 6 

V. Wild (2 Camp. 561) 142, 144, 179 

Hendrick v. Gunn (35 Ga. 234) 75 

Hendricks r. Isaac (117 N. Y. 411, 22 

N. E. 1029) 24 

Hendry v. Turner (35 Ch. D. 355) 405 
Hendy v. March (75 Cal. 566, 17 Pac. 

702) 66, 306 



Henecy, Ex parte (1 Sch. & L 44) 467 
Henkel v. Hey man (91 111. 96) 546 

Henley v. Soper (8 B. & C. 16) 219, 260, 

262, 265 
Henn v. Walsh (2 Edw. Ch. 129) 284, 285, 
293, 294, 295, 455 
Hennegin v. Wilcoxon (13 La Ann. 

576) 248 

Hennessy i'. Griggs (1 N. Dak. 52, 44 

N. W. 1010) 375 
V. Western Bank (6 W. & S. 



300 



135, 153 
424, 425 
o03, 

293 

4, 350 

59, 202, 393 

457 



Henniker v. Wigg (4 Q. B. 793) 
Henning v. Raymond (35 Minn 

29 N. W. 1.32) 
Henry v. Anderson (77 Ind. 361 

V. Bassett (75 Mo. 89) 

V. Birch (9 Ves. 357) 

c. Chapman (16 S. W. 543) 512 

V. Jackson (.37 Vt. 431) 552 

V. Willard (73 N. C. 35) 69 

Henslee v. Cannefax (49 Mo. 295) 125 
Hepburn, In re (14 Q. B. D. 394) 497 

V. Curts (7 Watts 300) 270 

Heran v. Hall (1 B. Mon. 159) 222 

Herbert v. Hanrick (16 Ala. 581) 151 

Herberton v. Jeperson (10 Barr 124) 383 
Hercy v. Birch (9 Ves. 357) 209 

Herfort v. Cramer (7 Col. 483) 237 

Hergman v. Dettlebach (11 How Pr. 

46) 290 

Herkimer, Tiie (Stew. Adm. 2.3) 55 

Herrick, In re (13 N. B. R. 312) 96, 182 

y. Ames (8 Bos w. 115) 511 

Herries v. Jamieson (5 T. R. 556) 254, 267, 

336 
Herrin v. Eaton (13 Me. 193) 303 

Herzog v. Sawyer (61 Md. 344) 150, 151 
Hershfield v. Claflin (25 Kas. 166) 343 
Hesham, Ex parte (1 Rose 146) 474, 499 
Hesketh v. Blanchard (4 East 144) 40, 60, 

2.54 
Hess V. Werts (4 S. & R. 3-56) 549, 552 
Hewes v. Bayley (20 Pick. 96) 312 

Hewitt V. Sturdevant (4 B. Mon. 453) 66 
Heyden, Ex parte (Cooke B. L. 2-54) 496 
Heydon v. Heydon (1 Salk. 392) 324, 339 
Heyhoe r. Burge (9 C. B 431) 5,40 

Hey wood v. Watson (4 Bing. 496) 180 

V. Wingate (14 N. H. 73) 308 

Hiard v. Bigg (xMann Ind. P., A. (a) 5 ) 88 



Hibbert v. Hibbert (Coll. Part. 203) 



209, 
279 
318 
196 
514 
171 



V. Martin (1 Camp. 538) 

Flicliens v. Congreve (1 R. & M. 132) 
Hickes v. Cook (4 Dow. 16) 
Hickman v. Kunkle (27 Mo. 401) 

V. Reineking (6 Blackf. 387) 97, 172 

Hicks V. Cram (17 Vt. 449) 30, 104, 107 
Hickson v. Aylward (3 Moll. 14) 515 

Higgins y. Rector (47 Tex. .361) 445 

V. Thomas (8 Q. B. 908) 303 

Higginson v. Air (1 Desaiis. 427) .300 

V. Fabre (3 Desaus. 93) 516 

Higinbotham v. Holme (19 Ves. 88) 467 



xlii 



TABLE OF CASES. 



Hill, Ex parte (1 Cox 300) 467 

, (3 Mont. &, A. 176) 488 

V. Bell (19 S. W. 959) 17 

v. Burniiam (15 Ves. 218) 501 

V. Draper (54 Ark. 395, 15 S. W. 

1025) 437 

Hollister (1 Wils. 129) 219 

V. MoPlierson (15 Mo. 204) 247, 309 

V. Manchester & S. W. W. Co. 

(5 B. & Ad. 800) 555 

V. Marsh (40 Ind. 218) 307 

V. Miller (78 Cal. 149, 20 Pa. 

304) 204 
V. Palmer (56 Wis. 123, 14 N. W. 

20) 259 

V. Southerland (1 Wash. Va. 133) 

421 
V. Stetler (127 Pa. 145, 17 Atl. 

887) 538 

V. Voorhies (22 Pa. 68) 74, 95, 96, 

142 

V. Wiggin (31 N. H. 292) 291, 325, 

338, 343 
Hilliker v. Francisco (65 Mo. 598) 97 

V. Loop (5 Vt. 116) 273 

Hillock V. Trader's Ins. Co. (54 Mich. 

531) 146 

Hills v. Bailey (27 Vt. 548) 248, 258 

V. McRae (9 Hare 297) 330 

V. Nash (10 Jur. 148) 281 

V. Ross (3 Dall. 331) 145 

Hilton V. Eckersley (6 E & B. 47) 401, 402 

V. Granville (4 Beav. 130) 291 

V. Vanderbilt (82 N. Y. 591) 378 

Hinds V. Backus (45 Minn. 170, 47 

N. W. 655) 97 

V. Terry (Walk. 80) 304 

Hindy v. Margarity (3 Barr 428) 19 

Hine v. Lart (10 Jur. 106) 244 

Hinkie v. Reid (43 Ind. 300) 206 

Hinton, Ex parte (14 Ves. 598) 467 

, (De Gex 550) 487 

f. Law (10 Mo. 701) 66 

Ilirbour v. Reeding (3 Mont. 13) 7 

Hiscock V. Phelps (49 N. Y. 97) 333, 354, 

366 
Ch. 

135 
384 
403 

501 
223 

431 

26 



Hitchcock V. St. John (Hoff 

511) 
Hitew. Hite (1 B. Mon. 179) 
Hixon V. Pixley (15 Nev. 475) 
Hoadley v. County Comm'rs (105 

Mass. 519) 
Hoag V. McGinnis (22 Wend. 163) 
Hoard v. Clam (31 Minn. 186, 17 

N. W. 275) 
Hoare v. Allen (2 Dall. 102) 

V. Dawes (1 Doug. 371) 32, 53, 73, 

89, 107, 272 
V. Oriental Bank (2 App. Cas. 

589) 331, 488 

Hobart r. Andrews (21 Pick. 526) 

V. Howard (9 Mass. 304) 

Hobbs 0. Memphis Ins. Co. (1 Sneed 

444) 
V. Wilson (1 W. Va. 50) 



Hoby V. Roebuck (7 Taunt. 157) 385, 429 
Hodenpyl v. Vingerhold (Chit. Bills 

489) 164 

Hodge V. Twitchell (33 Minn. 389, 23 

N. W. 547) 196 

Hodges V. Dawes (6 Ala. 215) 45 

V. Harris (6 Pick .360) 134 

V. Hohnaii (1 Dana 53) 137, 500 

V. Parker (17 Vt. 242) 527 

r. Tarrant (31 S. C. 608, 9 S. E. 

1038) 68 

Hodgkinson, Ex parte (19 Ves. 291) 

40, 55, 95, 146, 271 

, (2 Rose 174) 146 

, (1 Coop. 101) 485, 498 

467 

520 

289 

8 

493 

514 

96 

274 



Hodgson, tx parte (2 Bro. Ch. 5) 

, (19 Ves. 206) 

, (2 Glyn & J. 21) 

V. Murray (2 Sim. 515, 3 Sim. 

382) 

V. Temple (5 Taunt. 181) 

Hodsden v. Staple (2 T. R. 697) 
Hoe V. Richards (2 Beav. 305) 
Hoeflinger v. Wells (47 Wis. 628, 

3 N. W. 589) 
Hoff 1-. Rogers (67 Miss. 208, 7 So. 



Aetna Ins. Co. (32 N 



515 
414 

235 
401 



358) 
Hoffman 

405) ■ 235 

V. Duncan (17 Jur. 825) 296 

V. (18 Jur. 69) 298 

V. Pitt (5 Esp. 25) 493 

V. Toll (28 N. E. 567) 84 

Hogaboom v. Herrick (4 Vt. 131) 417 

Hogan r. Reynolds (8 Ala. 59) 143, 147 
Hogg V. Ellis (8 How. Pr. 473) 542, 544 

V. Orgill (34 Pa. 344) 163, 171 

Hogle V. Lowe (12 Nev. 286) 354 

Holbrook, In re (2 Low. 259) 182, 481, 488 

c. Ins. Co. (25 Minn. 229) 110 

V. Lackey (13 Met. 1.32) 4.37 

r. O' Berne (9 N. W. 291) 60 

V. Wight (24 Wend. 169) 124 

Holcroft V. HofTgins (2 C. B. 488) 88 

Holden v. McMakin (1 Pars. Cas 270) 

242, 297, 440 

V. Peace (4 Ired. Eq. 223) 194, 527 

t: Trust Co. (100 U. S. 72) 203 

Holdernen v. Shackels (8 B. &C. 612) 

66, 137, 3.38, 500, 501, 503 
Holdredge v. Gwynne (18 N. J. Eq. 

26) 204 

Holdsworth, Ex parte (1 Mont. D. & D. 

475) 65 

Holifield V. White (52 Ga. 567) 53 

Holladay v. Elliott (8 Ore. 84) 4(i2 

Holland v. Drake (29 Oh. St. 441) 135 

V. Fuller (13 Ind. 195) 349, 361 

V. Holland (6 Ired. Eq. 407) 515 

V. Teed (7 Hare 50) 315 

V. Weld (4 Me. 255) 313 

HoUiday v. Camsell (1 T. R. 658) 304 
Hollister, In re (3 F. R. 452) 476 
HoUoway v. Rrinkley (42 Ga. 226) 63 
V. Turner (61 Md. 217) 306, 522 



TABLE OF CASES. 



xliii 



Holme V. Green (1 Stark. 488) 157 

V. Hammond (L. R. 7 Ex. 218) 

41,65 
Holmes v. Blogg (8 Taunt. 35) 17, 19 

V Burton ('J Vt. 252) 85, 88, 90 

V. Hawes (8 Ired. Eq. 21) 328, 338 

V. Higgins (1 B. & C. 74) 37, 59, 

200, 248, 252, 532, 549, 55;^ 
r. Holmes B. & A. Mfg. Co. (37 

Conn. 278) 243 
V. Kortlander (64 Mich. 591, 31 

N. W. 532) 83 

V. McCray (51 Ind. 358) 7 

c. Mentze (4 A. & E. 127) 338 

V. Old Colony li. U. (5 Gray 58) 

28,62 

V. Porter (39 Me. 157) 107 

V. Self (79 Ky. 297) 360 

V. United Ins. Co. (2 Johns. Cas. 

329) 54 

0. Williamson (6 M. & S. 158) 254, 

267, 268 
Holt u. Kernodle (1 Ire. 199) 46 

V. Ward (2 Stra. 937) 20 

Holt's Appeal (98 Pa. 257) 352 

Holyoke v. Mavo (50 Me. 385) 260 

Homer v. Wood (11 Cush. 62) 172, 179, 
246, 274. 275 
Homfray v. Fothergill (L. R. 1 Eq. 

567) 208,519 

Honore v. Colmesnil (7 Dana 201) 439, 

524 

V. (IJ. J. Marsh. 506) 194, 200, 

234 
Hood V. Aston (1 Russ. 412) 181, 286, 

288 322 
Hook V. Stone (34 Mo. 329) ' 134 

Hookham v. Pottage (L. R. 8 Ch. 91) 

237, 240, 243 
Hoop, The (1 C. Rob. 196) 26 

Hooper v. Baillie(118 N. Y. 413, 23 

N. E. 569) 135 

IJ. Lusby (4 Camp. 66) 146 

Hope 1-. Cust (1 East 48) 96,174,176, 

185 
Hopkins, Ex parte (104 Ind. 157, 2 

N. E. 587) 335, 480 

V. Banks (7 Cow. 650) 163 

V. Ciiittenden ( 10 Tex. 189) 203 

(•. Forsvtl) (14 Pa. 34) 66 

V. Smith (11 Johns. 161) 38, 48 

V. Thomas (61 Mich. 389, 28 N. 

W. 147) 143 

I'. Walt (13 111. 298) 195 

Hopkinson v. Smith (1 Bing. 13) 15 

Horbach v Huey (4 Watts 455) 312, 313 
Horn /;. Baker (9 East 215) 490, 493 

V. Clarkson (1 Cai. 276) 319 

V. Newton City Bank (32 Kas. 

518, 4 Pac. 1022) 84 
Horsey v. Heath (5 Oiuo 353) 445 
Horsley v. Rush (7 T. R. 209) 150 
Horton v. Child (4 Dev. 460) 92 
tj. New Pass Gold & Silver Min. 

Co. (27 Pac. 376) 46 



243 
144 

516 

327 

65 
170 



136 

387 

262 
476 
160 
76, 93 
163 



Horton v. Soyer (4 H. & N. 613) 148 

Horton's Appeal (13 Pa. 67; 128, 129, 

138, 391 
Horton Mfg. Co. v. Horton Mfg. Co 

(18 F. R. 816) 
Hosack V. Rogers (8 Paige 229) 

V. (9 Paige 468) 

Hoskins v. Johnson (24 Ga. 625) 
Hot Spring R. R. v. Trippe (42 Ark 

465) 
Hotchkiss V. English (4 Hun 369) 
Houghton, Ex parte (n Ves. 252) 490, 493 

c. Houghton (11 Sim. 491) 350, 362, 

364 
Houk V. Walker (30 N. E. 1080) 
Houlton's Case (1 Mer. 616) 
Hourguebie v. Girard (2 Wash. C 

212) 
Houseal's Appeal (45 Pa. 484) 
Houser r. Irvine (3 W. & S 345) 
How V. Kane (2 (Jhaudl. 222) 
Howard i; Cobb (3 Day 309) 

V. Priest (5 Met. 582) 349, 350, 351, 

361, 362, 364 
Howe V Dupoyster (7 S. W. 627) 44, 46 

f. Lawrence (9 Cush. 553) 332, 478 

V. Thayer (17 Pick. 91) 370, 398, 

408, 412 
Howell V. Adams (68 N. Y. 314) 407 

V. Brodie (6 Bing. N. C 44) 11, 12, 

252 

r. Com. Bank (5 Bush 93) 344 

V. Harvey (5 Ark. 270) 11, 276, 371, 

394, 455, 456, 457 

I'. Howell (15 Wis. 55) 355 

V. Moores (127 111. 67) 182 

V. Reynolds (12 Ala. 128) 312, 313, 

319 
V. Sewing Machine Co. (12 Neb. 

177, 10 N. W. 700) 99 

V. Teel (29 N. J. Eq. 490) 336 

Howken v. Bourned (8 M. & W. 703) 82 
Howland, In re (L. R. 1 Ch. 421) 491 
Hoxie V. Carr (1 Sumn. 173) 327, 352, 
353, 354, 356, 358, 500 
I'. Chaney (143 Mass. 592, 10 N. 

E. 713) 237, 238, 244 
Hoyt V. Holly (39 Conn. 326) 236 
V. Hoyt (69 la. 174, 28 N. W. 

500) 
V. McLaughlin (52 Wis. 280, 8 

N. W. 889) 

V. Sprague (103 U. S 613) 

Hubbard, Ex parte (13 Ves. 424) 

V. Callahan (42 Conn. 524) 

V. Curtis (8 la. 1) 325, 328, 331, 344 

V. Guild (1 Duer 662) 298, 300, 466 



350 

512 
442 

478 
203 



V. Matthews (54 N Y. 43 

V. Winsor (15 Mich. 146) 

Hubbell V. Woolf (15 Ind. 204) 
Hubert v. Nelson (Dav. B. L. 8) 
Hudson V. Barrett (1 Pars. 414) 
Huey V. Hoobach (4 Watts 455) 
Huggett V. Montgomery (5 B. 
446) 



281, 
& P. 



187 
360 
181 
168 
509 
312 

126 



xliv 



TABLE OF CASES. 



Iluglies, Ex parte (6 Ves. 617) 503 

V. Ellison (6 Mo. 4c;3) 134, 154 

V. Wheeler (8 Cow. 77) 483 

Huiskamp v. Moline Wagon Co. (121 

U. S. 310) 332 

Hulett V. Fairbanks {40 Oh. St. 

233) 35, 59 
Hull V. Garner (31 Miss. 145) 155 
V. Young (30 S. C. 121, 8 S. E. 

695) 150, 151 

Human v. Cuniffe (32 Mo. 316) 154 

Hume V. BoUand (1 C. & M. 130,2 

Tyr. 575) 122 

V. (R. &M.371) 123 

V. Watt (5 Kas. 34) 187 

Humes v. O'Bryan (74 Ala 64) 69, 87, 



Humphre3-s v. Mooney (5 Col. 282) 
Humphries v. Chastain (5 Ga. 166) 

V. McCraw (5 Ark. 65) 

Hundley v. Farris (103 Mo. 78, 15 S. 

W. 312) 
Hunnicutt v. Sumney (63 Ga. 586) 
Hunsden v. Cheyney (2 Vern. 150) 
Hunt V. Benson (2 Humph. 459) 349, 

V. Bridgham (2 Pick. 581) 

V. Chapin (6 Lans. 139) 

V. Clark (6 De G. M. & G. 232) 

V. Colorado M. & E. Co. (1 Col. 

App. 120. 27 Pac. 873) 

V. Gookin (6 Vt. 462) 

V. Hall (8 Ind. 215) 

V. Morris (44 Miss. 314) 

V. Ueilly (50 Tex. 99) 

i\ Royal Exch. Assur. Co. (5 

M. & S. 47) 

V. Waterman (2 R. I. 298) 

Hunter, Ex parte (1 Atk. 223) 



103 

50 

G81 

433 

476 
351 

492 

353 

159, 417 

82 

458 

404 

507 
143 

266 

258 



— (Buck 552) 

— (2 Rose 382) 
Galliers (2 T. R. 133) 
Pfeiffer (108 Ind. 197) 
Rice (15 East 100) 



164 

328, 338 
88, 181, 
496, 499 
472 
490 
467 
9 
494 



776) 



Waynick (67 



la. 555, 25 N. W. 

134, 135 



Huntington v. Potter (32 Barb. 300) 383 
Hurd y. Darling (14 Vt 214) 303 

V. Haggerty (24 111. 171) 172 

Hurley v. Walton (63 111. 260) 53 

Hurt V. Salisbury (55 Mo. 310) 50 

Husband, Ex parte (2 Glyn & J. 4, 5 

Madd. 419) 487, 495, 496 

Hussey ;;. Dole (24 Me. 20) 469 

V. Jewett (9 Mass. 100) 21 

Hutehins v. Bank of Tenn. (8 Humph 

418) 405, 408, 413 

V. Hope (7 Gill 119) 512 

V. Hudson (8 Humph, 426) 143, 408 

V. Sims (8 Humph. 423) 407, 408 

V. Turner (8 Humph. 415) 125 

Hutchmson v Smith (7 Paige 26) 123 

V. Whitfield (Hayes 78) 375 

Hutton V. Eyre (6 Taunt 289) 144, 253, 

269 



Hutzler v. Phillips (26 S. C, 136, 1 S. 

E. 502) 476 

Huvver v. Dannenhoffer (82 N. Y. 

499) 244 
Hyat V. Hare (Comb. 383) 139 
Hyde v. Brashear (19 La. 402) 444 
V. Stone (9 Cow. 230, 7 Wend. 

354) 303, 304, 321 

Hyues v. Stewart (10 B. Mon. 429) 11, 

276, 277 
Hyrne v. Erwin (23 S. C. 226) 125 



I. 



Ibbotson V. Elam (L. E. 1 Eq. 188) 



208, 

519 

417) 302 

182, 404 

162, 380 

187 

159, 483 



Iddings V. Bruen (4 Sandf. Ch 

V. Pierson (100 Ind. 418) 

Ide V. Ingraham (5 Gray 106) 
Ihmsen v. Negley (25 Pa. 297) 
Ilsley V. Jewett (2 Met. 168) 
Imperial Refining Co. v. Wyman (38 

F. R. 574) 549 

Inbusch V. Farwell (1 Black 566) 338 

India Bagging Assoc, v. Kock (14 La. 

Ann. 168) 566 

Indian Chief, The (3 C. Rob. 22) 26 

Indianapolis Board of Trade r. Wal- 
lace (117 Ind. 599, 18 N. E. 48) 477 
Ingliss V. Grant (5 T. R. 530) 491 
Ingraham v. Foster (31 Ala 123) 12, 277 
Lines V. Lansing (1 Paige 583) 430, 540 

V. Stephenson (1 M. & R. 145) 143 

Insurance Co. v. Bear (23 Fla. 50, 1 



So. 



318) 

. Bennett (5 Conn. 574) 



10, 345 
87, 180, 
184, 185 
315 



V. Bold (6 Q. B. 514) 

V. Camp (64 Tex. 521) 

V. Cotheal (7 Wend. 72) 

V. Drennan (116 U. S. 461) 

V. Floss (67 Md. 403, 10 Atl. 139) 

V. Hildyard (37 N. J. L. 444) 

V. Kountz Line (4 Woods 268) 

V. Ligon (59 Miss. 305) 65, 168, 442, 

452 

V. Murpliy (5 Minn. 56) 

V. Noves (32 N. H. 345) 

V. Railroad (104 U. S. 146) 

V. Richardson (33 La. Ann. 1308) 

V. Riker (10 Mich. 279) 

V. Ross (29 Oh St. 429) 

V. (23 Ind. 179) 

V. Scott (1 Johns. 106) 

V. Statliam (93 U. S. 24) 

V. Towle (65 Wis. 247) 

V. Treat (58 Me. 415) 

I'. Wallis (23 Md. 182) 

International Bank v. Jones (119 111. 

407, 9 N. E. 885) 
Iowa Seed Co. v. Dorr (70 la. 481, 30 

N. W. 866) 
Irby V. Brigham (9 Humph. 750) 



236 
318 
128 
236 
26 
65 



652 

20 

65 

08 

236 

63, 58 

236 

64, 57, 65 

26 

165 

170 

479 

347 

242 

165 



V. Graham (46 Miss. 425) 445, 446 



TABLE OF CASES. 



xlv 



Irbv V. Vining (2 McC. 379) 407 

Irvin V. Nashville, C. & S. L. Ry. (92 

III. 103) 65 

Irvine v. Forbes (11 Barb. 587) 189, 553 
Irving V. Excelsior Ins. Co. (1 Bosw. 

507) 146, 222, 319 
V Young (1 Sim. & St. 333, 1 

L. J. Cli. 108) 618, 519 

Irwin V Conklin (36 Barb. 64) 77 

v. Williar (110 U. S. 499) 206 

Isaacs. Ex parte (3 Sawy. 35) 429 

Isler V. Baker (6 Humph. 85) 416, 417, 

461 
Ives V. Miller (19 Barb. 196) 248, 251, 

254, 255 
Ivey V. Hammock (56 Ga. 428) 225 

Ivy V. Walker (58 Miss. 253) 249 



J. 



Jacaud v. French (12 East 317) 144 
Jackson, Ex parte (1 Ves. Jr. 131) 429, 

483, 490 

15 

273 

803 

492 

477 

157 

67 

67, 436 

E. 

172) 293 

333 



, In re (1 B. & C. 270) 
r. Alexander (8 Tex. 109) 
y Anderson (4 Taunt. 24) 
V. Cator (5 Ves. 688) 
f. Clymer (43 Pa. 79) 
V. Fairhank (2 H. Bl. 340) 
I'. Jackson (7 Ves. 535) 

r. (9 Ves. 591) 

V. Lahee (114 111. 287, 2 N. 



V. Litchfield (8 Q B. D. 474) 

V. McLean (100 Mo. 130, 13 S. 

W. 393) 8, 9, 10 

V. Mayo (11 Mass. 147) 21 

v. Porter (2 Mart. La. 200) 151 

V. Robinson (3 Mas. 138) 48, 54. 64, 

■ 66 

V. Sedgwick (1 Swanst. 460) 207, 208, 

211, 215, 282, 500, 518 

i: Sheldon (9 Abb. Pr. 127) 540 

V. Stanford (19 Ga. 14) 154, 356 

V. Stopherd (2 Cr. & M. 361, 4 

Tyrw. 330) 255, 263, 264, 607 
>:. Todd (56 Ind. 406, 75 Ind. 

472) 119 

Jacky V. Butler (2 Ld. Raym. 871) 324, 

339 
Jacobs V. Fatherstone (6 W. & S. 346) 23 

(• McBee (2 Mc.VluU. 348) 91 

Jacobsen v. Hennekenius (1 Bro. P 

C. 4.;2) 30, 302 

Jacobson v. Williams (1 P. Wms. 382) 479 
Jacquin v. Buisson (11 How. Pr. 385) 300, 
437, 536, 643 
Jaffe V. Krum (88 Mo. 669) 542 

Jaffray v. Frebain (5 Esp. 47) 22 

Jaggers I'. Binnings (1 Stark. 64) 164 

James v. Bostwick (Wright 142) 93, 608 

V. Stratton (32 111. 202) 338 

V. Woodruff (2 Den. 574) 556 

Janes v. Whitbread (11 C. B. 406) 66 



Jannev v. Springer (78 la. 617, 43 

N. W. 461) 98 

Jaques v. Hulit (16 N. J. 38) 262 

r. Marquand (6 Cow. 497) 88, 89, 123, 

181 
Jarvis v. Brooks (23 N. H. 136) 336, 478 

V. (27 N. H. 36) 350, 352, 369 

V. Hyer (4 Dev. 367) 338 

V. Peck ( 1 Hoff. Ch. 479) 401 

Jauncey v. Knowles (29 L. J. n. s. Ch. 

95) 529 

Jefferson, The (1 C. Rob. 325) 602 

Jefferson County v. Lewis (20 Fla. 

980) 203 

Jefferson Ins. Co. v. Cotheal (7 Wend. 



Jefferys v. Smith (3 Russ. 158) 
Jeffreys v. Small (1 Vern. 217) 



318 

391, 555 

2, 348, 

436 

V. Smith (1 Jac. & W. 298) 34, 298, 

372, 375 
Jeffries V. Castleman (76 Ala. 262) 163 
Jell V. Douglass (4 B. & Aid. 374) 312 
Jenkins v. Blizard (1 Stark. 418) 407, 412 

I'. Morris (16 M. & W. 877) 111 

Jenness v. Carleton (40 Mich. 343) 168 
Jennings v. Chandler (10 Wis. 21) 284 

V. Estes (16 Me. 323) 68, 107 

Jennings's Anpeal (16 Atl 19, 2 

Monag. 184) 192 

Jennison v. Hapgood (7 Pick 1) 603 

Jepson, Ex parte (19 Ves. 224) 480 

V. Beck (78 Cal. 540, 21 Pac. 

184) 268 

Jervis v. White (6 Ves 738) 517 

V. (7 Ves. 413) 288, 322 

Jessup V. Carnegie (80 N. Y. 441) 50 

V. Cook (1 Halst. 434) 194, 518 

Jewell V. Ketchum (63 Wis. 628, 23 

N. W. 709) 254 

Jevvett, In re (15 N. B. R. 126) 72, 103, 
463, 469, 480 
Jewson V. Moulson (2 Atk. 420) 479 

Johnes' Case (1 Mer. 619) 387 

Johns, Ex parte (Cooke B. L. 634) 499 

V. Battin (30 Pa. 84) 151 

Johnson, /« re (16 Ch. D. 648) 663 

v. Barry (95 111. 483) 140 

I'. Beardslee (15 Johns. 3) 159 

V. Bernheim (76 N. C. 130) 540 

V. Boone (2 Harr. 172) - 423 

V. Buttler (31 N. J. Eq. 35) 610 

V. Byerly (3 Head 194) 121 

V. Corser (34 Minn. 355, 25 N. W. 

799) 50, 52 

V. Crichton (56 Md. 108) 97 

V. Curtis (3 Bro. C. C. 226) 515 

V. Evans (7 M. & G. 240) 338, 339, 

340. 375. 392 

V. Hartshorne (52 N. Y. 173) 526,627 

y. Hudson (11 East 180) 8 

V. Kaiser (40 N. J. L. 286) 437 

V. Ketchum (3 Green Ch. 364) 511 

V. King (6 Humph. 233) 345 

V. Lewis (6 F. K. 27) 667, 661 



xlvi 



TABLE OF CASES. 



414 



204 
476 



Johnson v. McClary (131 Ind. 105, 

30 N. E. 888) , 08 

r. McDonald (2 Abb. Pr. 290) 546 

c. Miller (16 Ohio 431) 45, G2 

r. Peck (3 Stark. 66) 145, 179 

V. Robinson (68 Tex. 399, 4 S. 

W. 625) 134, 135 
r. Shrewsbury &c. Ky. (3 De G. 

M. & G. 927) 279 

v. Totten (3 Cal. 343) 406, 413 

v. Wilson (54 111. 419) 248 

V. Young (20 W. Va. 614) 

Johnson's Appeal (115 Pa. 129, 8 Atl 

36) 
Johnston, In re (17 F. R. 71) 

V. Dutton (27 Ala. 245)' 79, 189, 190 

(.-. Freer (51 Ga. 313) 305 

r. Straus (26 F. R. 57) 332 

V Trask (116 N. Y. 136, 22 N. E. 

377) 1.39 

V. Warden (3 Watts 101) 68, 88 

Jonan v. Blanchard (2 Rob. La. 513) 540 
Jones, Ex parte (18 Ves. 283) 480 

, (4 M. & S. 450) 490, 493 

V. Bailey (5 Cal. 345) 148, 149 

V. Booth ( 10 Vt. 268) 99, 173 

V. Butler (87 N. Y. 613) 223 

r. Caperton (15 La. Ann. 475) 35 

V. Clark (42 Cal. 180) 656 

v. Clavton (4 M. & S. 349) 336 

V. Dexter (1-30 Mass. 380) 204 

V. Dwyer (15 East 21) 493 

r. Fletcher (42 Ark. 422) 331 

V. Harraden (9 Mass. 540) 254 

V. Herbert (7 Taunt. 421) 142, 145 

V. Howland (8 Met. 377) 490 

r Jackson (14 Ala. 186) 125 

f. Jones (1 Ired. Eq. 332) 234, 527 

V. (13 la. 276) 474 

r. Latimer (1 Jur. 980) 515 

»'. Lees (1 H. &N. 189) 402 

V. Lusk (2 Met. Ky. 356) 327, 328, 

338 339 

IV McMichael (12 Rich. 176) 7, 432 

V. Mars (2 Camp. 305) 183 

V. Maund (3 Y. & C. 347) 420 

V. Morgan (16 Jur. 238) 276 

r. Neale (2 Pat. & H. 339) 349, 361, 362 

r. Noy (2 M. & K. 125) 458, 459 

r. Parsons (25 Cal. 100) 138 

V. Perry ( 10 Yerg 69) 289 

V Phoenix Bank (8 N. Y. 228) 20 

i\ Shaw (67 Mo. 667) 251 

r. Smith (31 S. C. 527, 10 S. E. 

340) 366 

v. Thompson (12 Cal. 191) 344 

V. U. S. (7 How 681) 425 

V. Walker (10:5 U. S. 444) 65, 461 

V. Yates (9 B. & C. 532) 98, 175, 179, 

270, 274, 275, 312, 455 
Jonge Pieter, Tiie (4 C. Rob. 79) 26 

Jons V. Perciiard (2 Esp. 507) 36 

Jordan, Tn re (2 F. R. 319) 123 

V. Lpwis (2 Stew. 426) 224 

V. Miller (75 Va. 442) 7, 293, 306 



Jordan v. Wilkins (3 Wash. C. C. 115) 78 
Joseph V. South wark F. & M. Co (10 

So. 327) 404. 405 

Josephs V. Pebrer (3 B. & C. 639) 650, 

554, 556 
.loslvn r. Smith (13 Vt 353) 159 

Joy V. Campbell (1 Sch. & L. 328) 494 
.Joyce V. Williams (14 Wend. 141) 172 
Judd V. Gibbs (Hill. Bkr. 114) 479 

V. Harris (6 Vt. 185) 250 

Judge V. Braswell (13 Bush 67) 83, 84 
Judson r. Adams (8 Cush. 556) 45 

V. Gibbons (5 Wend. 224) 22 

Julia, Tiie (1 C. Rob. 181) 26 

, (8 Cranch 195) 310 

Julian V. Wrightsnian (73 Mo. 569) 335 
Julio t'. Ingalls (1 All. 41) 7 



K. 



Kahn r. Boltz (39 Ala. 66) 

V. Central Smeltmg Co. (102 U. S. 

641) 
Kaiser v. Lawrence Savings Bank (56 

la. 104) 

V. Wilhelm (2 Mo. App 696) 

Kallenbach r. Dickinson (100 111. 427) 
Kane v. Scofield (2 Cai. .368) 
Kansh, Ex parte (32 S. C. 437, 11 

S. E. 298) 
Karthaus v. Ferrer (1 Pet 228) 
Kaskaskia Bridge Co. v. Shannon (6 

III. lo) 
Kasson v. Brocker (47 Wis. 79, 1 N. 

W. 418) 
Katsch V. Schenck (13 Jur. 668) 47, 

Katz V. Brewington (71 Md. 79, 20 
Atl. 139) 199, 

Kauffman v. Fisher (3 Grant 302) 
Kay V. Pienne (3 Camp. 123) 
Kayser v. Maugliara (8 Col. 3-39, 7 

Pac. 286) 
Kean v. Johnson (1 Stock. 401) 
Keane r Boycott (2 H. Bi. 511) 

r. Fisher (9 La. Ann. 70) 

Keasley v. Codd (2 C. & P. 408) 
Keating v. Marsh (1 Mont. & A. 670) 

Kedie, Ex parte (2 Deac. & Ch. 321) 

Keeler v. Niagara Ins. Co. (16 Wis. 

623) 
Keene v. Harris (17 Ves. 342) 
Keene's Executors, Ini-e (3 l)eG. M. 

& G. 272) 
Keeney v. Home Ins. Co. (71 N. Y. 

396) 236, 

Keesley v. Cadd (2 C. & P. 401 ) 
Kehoe v. Carville (51 N. W. 166) 
Keith V. Armstrong (65 Wis. 225, 26 

N. W. 445) 

V. Fink (47 III. 272) 332, 

Kelby v. Steel (5 Esp. 194) 



164 

34 

50 
523 
160 
168 

.351 
148 

164 

151 
295, 
605 

280 
160 

23 

204 
106 
16 
273 
553 
122, 
123 
483, 
484 

2.35 
242 

25 

292 
649 
404 

332 
490 
253 



TABLE OF CASES. 



xlvii 



Kell V. Nainby (10 B & C. 20) 22, 108, 

109 
Kelloy V. Bourne (15 Ore. 476, 16 Pac. 

40) 351 

r. Flory (51 N. W. 181) m2 

V. Greenleaf (3 Storv 93) 97, 194, 

200, 205, 276, 3S4 

V. Ilurllmrt (5 Cow. 534) 32, 74, •iO ) 

V. Kaiiifinun (18 Pa. 351) 266, 208 

Kelloffg V. Faiicher (23 Wis. 21) 97 

. Griswol.l (12 Vt. 291) 60 

r. Laveii.lcT (15 Neb. 256) 203 

r. Moore (97 111. 282) 254 

t.: Olson (31 Minn. 103, 24 N. W. 

364) 231 

Kellogg Newspaper Co. v. Farrell 

(88 Mo. 594) 46,47 

Kelly r. Eckford (5 Paige 548) 283 

Kelsliaw i: Jukes (8 L. T. n. s. 387) 57 
Kenil)le v. Farren (6 Bins?. 141) 223, 224 

c. Kean (6 Sim. 333) 278, 279 

Kemegs v. Hicliards (11 Barb. 312) 173 
Kemiiierer v. Kemnierer (52 N. W. 

194) 526 

Ketnp ('. Carnley (3 Duer 1) 135 

V. Coffin (3 Greene 190) 381 

Kendall, Ex parte (17 Ves. 614) 827, 330, 
482, 485, 603 

V. Hackwortb (66 Tex. 499) 350 

V. Rider (35 Barb. 100) 350 

Kendrick v. Campbell (1 Bail. 522) 162 

V. Tarbell (27 Vt. 512) 111, 182, 183 

Kennebec Co. r. Augusta Ins. & B. 

Co. (6 Gray 204) 147 

KenTiedy v. Boliannon (11 B. Mon. 

120) 409 

c. Kennedy (3 Dana 239) 371, 456, 

509 

V. Lee (3 Mer. 441) 237, 238, 240,441 

V. McFadon (3 H. & J. 194) 266, 268 

c. Porter (109 N Y. 526, 17 N. E. 

426) 205, 374 

Kenney v. Altwater (77 Pa. 34) 140, 407 
Kenniston c Avery (16 N. H. 117) 159, 

160 
Kensington, Ex parte (14 Ves. 447) 

329, 478 

. (2 Ves. & B. 79) 315 

Kenton Fiirnaoe R. R. & Mfg. Co. v. 

McAlpin (5 F R. 737) 146 

Kentucky, Bank of, v. Brooking (2 

Litt. 41j 169, 180, 184, 206 

Kepler v. Erie Dime Sav. & L. Co 

( 101 Pa. 602) 368 

Kerper v. Wood (48 Oh. St. 613, 29 

N. E. 501) 160,161 

Kerr i\ Haverstick (94 Ind. 178) 203 

('. Hawthorne (4 Yeates 170) 447 

V. Potter (6 Gill 404) 47 

Kerrick v. Stevens (55 Mich. 167, 20 

N. W. 888) 13 

Kerridge v. Hesse (9 C & P. 200) 426 
Kershaw y. Kelsey (100 Mass. 661) 26 

V. Matthews (2 Russ. 62) 295, 432, 

449 



Ketcham v. Clark (6 Johns. 144) 127, 138, 

403, 405, 407 

Ketchum, In re (1 F. R. 815) 121, 125 

V. Durkee (1 Ilotf. Ch. 528) 88, 426 

V. ( 1 Barb. Ch. 480) 436 

Keye's Appeal (65 Pa. 196) 624 

Kibbler v. De Forest (6 Ala. 92) 185 

Kidd V. Johnson (100 U. S. 617) 244 

Kidder o. Page ( 48 N. H. 380) 185, 332 
Kidwelly Coal Co. v. Raby (2 Price 

93) 
Kieran v. Sanders (6 A. & E 515) 

Kiffin V. Willis (4 Mod. 379) 
Kilbreth v. Root (33 W. Va. 600, 11 

S. E. 21) 
Kilby V. Wilson (R. & M. 178) 
Kilgore v. Powers (5 Blackf. 22) 
Kilgour V. Finlyson ( 1 H. Bl. 155) 

Killam v. Preston (4 W. & S. 14) 262, 264", 

619 
Killefer v. McLain (70 Mich. 508, 38 
^ N. W 455) 525 

Kimball v. Hamilton Ins. Co (8 Bosw. 
4'.i5) 

6-. Walker (30 111 482) 

V. Whitnev ( 15 Ind. 280) 

Kimberly v. Arms (129 U. S. 512) 



554 

109 
126 

293 
120 

203 
4U2, 
406 



135 

87 
445 
193. 
196 

278 
82,84 



r. Jennings (6 Sim. 340) 

Kimbro v. Bullitt (22 How. 256) 
Knig. See Re.v. 

\ Ex parte (17 Ves. 115) 472, 499 

, (1 Rose 212) 497 

, (Cooke B. L. 634) 499 

V. Accumulative Ass. Co. (3 

C B jj. s. 151) 373 

r. Faber (22 Pa. 21) 97, 172 

V. Hamilton (16 111. 190) 200 

'•. Hoare (13 M. & W. 494) 92 

V Leighton (100 N. Y. 386, 3 

N. E 594) 378, 435, 512 

V Lowry (20 Barb. 532) 66 

V. Rock (2 Price 198) 

V Sarria (7 Hun 167) 

V. Smith (4 P. & C. 108) 144, 



476 
547 
383, 
385 
354 



I'. Weeks (70 N. C. 372) 

r. White (63 Vt. 158, 21 Atl. 

535) 376, 512 

v. Winants (71 N. C. 469) 9 

Kingman v. Spurr (7 Pick 235) 10, 11, 
127, 128, 129, 130. 138, 555 
Kingsbury ;;. Tharp (61 Mich. 216, 23 

N. W. 74) 97 

Kinkead, In ?v (3 Biss. 405) 24 

Kinloch v. Hamlin (2 Hill Ch. 19) 607 
Kinnersley r. Mussen (5 Taunt 264) 155 
Kinney v. Maher (156 Mass. 252, 30 

N. E. 818) 202 

V. Robinson (66 Mich. 113, 38 

N. W. 172) 505 

V. Hobison (49 Mich. 247. 18 

N W 120) 252 



xlviii 



TABLE OF CASES. 



Kinsman v. Barker (14 Ves. 579) 

V. Dallam (5 Mon. 382) 

Kirby, Ex parte (Buck 511) 97, 

V. Cannon (9 Iiid. 371) 

V. Carr (3 Y. & C. 184) 459, 

y. Coggs well (1 Cai. 505) 16y, 

V. Hewitt (26 Barb. 007) 

V. IngersoU (1 Doug. Mich. 477, 

1 Hare Midi. 172) 134, 
V. L. S. & M. S. R. II. (8 E. K. 

462) 

V. (14 F. R. 261) 

Kirk V. Blurton (9 M. & VV. 284) 

r. Hiatt (2 Ind. 322) 160, 

V. Hodgsdon (3 Johns. Ch. 400) 

Kirkley v. Hodgson (1 B. & C. 580) 
Kirkman v. Booth (11 Beav. 273) 

V. Xewstead (1 Esp. 117) 

V. Snodgrass (3 Head 370) 

Kirkpatrick v. McEIroy (41 N.J. Eq. 

539, 7 Atl. 647) 

r. Turnbull (Add. 259) 

Kirkwood v. Cheetham (2 F. & F. 

798) 
Kirwan v. Henry (16 S. W. 828) 

V. Kirwan (2 Cr. & M. 617, 4 

Tyrw. 491) 95,387,414,419,429, 

Kitchen v. Bank (14 Ala. 233) 

r. Bartsch (7 East 63) 

Kittrell i'. Blum (77 Tex. 336, 1 4 S. W. 

69) 
Kleinhaus v. Generous (25 Oh. St. 

667) 
Kline r. Bebee (6 Conn. 494) 
Klotz V. Macredy (39 La. Ann. 638, 

2 So. 203) 
Klumpp V. Gardner (114 N. Y. 153, 

21 N. E. 99) 
Knapp V. Edwards (57 Wis. 191, 15 

N. VV. 140) 

V. McBride (7 Ala. 19) 171, 

Knebell r. White (2 B. & C. 15) 280, 
Knerr v. Hoffman (65 Pa. 126) 
Knight V. Marjorihanks (11 Beav. 

322, 2 McN. & G. 10) 

V. Plymouth (3 Atk. 480, Dick. 

120) 

Knott V. Morgan (2 Keene 213) 244, 
Knowles v. Haughton (11 Ves. 168) 
9, 281, 508, 
Knowlton v. Reed (38 Me. 246) 66, 
Knox V. Buffington (50 Li. 320) 

V. Campbell (1 Barr 366) 

V. Simmons (4 Yeates 477) 

Kountz V. Holthnnse (85 Pa. 235)427, 
Kramer v. Arthurs (7 Barr 165) 35, 
Krapp V. Aderholt (42 Kas. 247, 21 

Pac. 1063) 
Krebell v. White (2 Y. & C. 15) 
Krebs v. O'Grady (23 Ala. 726) 
Kritzer v. Sweet (67 Mich. 617, 24 

N. W. 764) 



514, 
515 
112 
175 

22 
460 
311 

69 

135 

435 

935 
110, 
113 
162 

189 
493 
458 
313 
407 

293 
132 

103 

199 

482. 
484 
203 
465 

135 

87 
20 

439 

135 

199 
432 

281 
339 

195 

453 
322 

510 
433 
81 
66 
476 
429 
369 

527 

510 

23 

103 



Krueger, In re (2 Low. 66) 103, 108, 387, 

403, 475 
V. Speith (8 Mont. 482, 20 Pac. 

664) 136, 437 

Kruschke v. Stefan (53 N. W. 679) 350, 

351 
Kuhn V. Newman (49 la. 424) 231 

V. Weil (73 Mo. 21-3) 125 

KuU V. Thompson (38 Mich. 685) 131 

Kutz c. Dreibelbis (126 Pa. 335, 17 

Atl. 6U9j 249, 434 
Kyle V. Kyle (1 Gratt. 526) 520 
V. Roberts (6 Leigh 495) 508 



Labouchere v. Dawson (L. R. 13 Eq. 

322) 237 

Lacey, £"x;;a>Ve (6 Ves. 628) 514 

Lachaise v. Marks (4 E. D. Smith 610) 539, 

642, 543, 544, 546 

La Choraette v. Thomas (1 La. Ann. 

120) 639. 543, 545 

Lacy (,-. Le Brun (6 Ala. 904) 307, 309 

V. McNeile (4 D. & R. 7) 142, 162, 

163, 164 

V. Waring (25 Ala. 625) 349 

V. Wolcott (2 D. & R. 458) 180, 467 

Ladbroke, Ex parte (2 Glyii & J. 81) 487 
Ladd V. Griswold (9 111. 25) 327 

La Flex v. Burss (77 Wis. 538, 46 

N. W. 801) 60 

Laflin & Rand Powder Co v. Steytler 

(146 Pa. 434, 23 Atl. 215) 538 

Lafon V. Chinn (6 B. Mon. 305) 88 

Laiond v. Deems (81 N. Y 507) 62 

LaForet, Ex parte (Cooke B. L. 251) 488 
La Forest, Ex parte (Cooke B. L. 276) 496 
Lagow I'. Patterson (1 Blackf. 262) 1.55 
Lake v. Argyll (6 Q. B. 477) 103 

>\ Gibson (1 Eq. Abr. 290) 2-32, 436 

i-. (3 p. Wms. 158) 4.36 

Lamar r. Hale (79 Va.l47) 34, 204, 205, 393 
Lamalere v. Caze (1 Wash. C. C. 435, 

2 Browne 128) 260, 262, 264, 518, 519 
Lamb r. Durant (12 Mass. 54) 66, 131 

V. Grover (47 Barb. 317) 222 

Lambden v. Sharp (9 Humph. 224) 151 
Lambert v. Griffith (50 Mich. 286, 15 

N. W. 458) 136 

Lambert's Case (Godb. 244) 131 

Lambeth v. Vawter (6 Rob. La. 127) 163 
Lamoille V. R. R. v. Bixby (55 Vt. 

235) 345 

Lamont v. Fullam (133 Mass. 58.3) 53 
Lancaster Bank ;;. My ley (12 Pa. 544) 361 
Lancaster Canal Co., Ex parte (1 

Deac. & Ch. 411, Mont. 116) 554 

Lanckton v. Wolcott (6 Met. 305) 485 
Lane, Ex parte (De Gex 300) 484, 488 

f. Felt (7 Gray 491) .346 

I'. Jones (9 Lea 627) 360 

V. Lenfest (40 Minn 375, 42 N. 

W. 84) 344 



TABLE OF CASES. 



xlix 



Lane v. Tyler (49 Me. 108) 260 

V. Williams (2 Vern. 277) 168, 170 

Lang V. Keppell (1 Biun. 123) 414 

V. Oppenljeim (90 Ind. 47) 248 

(,'. Waring (17 Ala 145) 184 

l: (25 Ala. 025) 34'), 356, 361, 

363, 365, 366, 367 
Langan v. Hewitt (13 Sm. & M. 122) 78, 

185 
Langdale, Ex parte (18 Ves. 300, 2 

Hose 444) 40, 51, 107, 302, 492 

Lange v. Kennedy (20 Wis. 279) 402 

Langliam (;. Bewett (Cro. Car. 68) 22 

Lanier i'. McCabe (2 Fla. 32) 82, 84, 97, 

172 
Laiisdale i'. Brashear (3 T. B. Mon. 

330) 34 

Lansing v. Gaine (2 Johns. 800) 82, 100, 

172, 381, 403, 406, 532 

I'. McKillup (7 Cow. 416) 145, 164, 

413 

V. Ten Eyck (2 Johns. 300) 81, 96 

Lapham v. Green (9 Vt. 407) 273, 317 

Larazzabcl y. Gorbea (2 Swanst. 572) 502 
Larkins v. Rhodes (5 Port. 195) 6 

Lascaridi v. Gurney (11 C. B. n. s. 

890) 5 

Lash V. Lambert (15 Minn. 416) 203 

Lassiter r. Jacknian (88 Ind. 118) 201 
Latham i-.Kenniston (13 N. H 203) 70, 254 
Lauder i\ Logan (123 Pa. 34, 16 Atl. 

44) 538 

LautTer v. Cavett (87 Pa. 479) .360 

Laugher v. Pointer (5 B. & C. 570) 124 
Lausldin v. Loreng (48 Pa. 275) 433 

Laverty v. Burr (1 Wend. 529) 96, 172, 

174, 185 
Law V. Cross (1 Black 533) 198 

V. Ford (2 Paige 310) 131, 297, 298, 

300 
Lawe's Case (1 De G. M. & G. 421) 207 
Lawless y. Mansfield (1 Dru. & W. 

557) 516 

Lawrence, Ex parte (1 De Gex 269) 493 

i-. Clark (9 Dana 257) 268 

V. Dale (3 Johns. Ch. 23, 17 

Joiins. 427) 147 

V. Sebor (2 Cai. 203) 318, 319 

V. Taylor (5 Hill 107) 153, 367 

V. Trustees of Orphan House (2 

Den. .577) 3-30 

Lawson v. Lovejoy (8 Me. 405) 16, 18 
V. Morgan (1 Price 303) 286, 291,292 



Leaf, Ex parte (1 Deac. 176) 
V. Coles (1 De G. M. & G. 171) 



406 



Laycock, Ex parte (1 Kose 32) 
Layfield's Case (1 Salk. 292) 
Layton, Ex parte (6 Ves. 438) 

i: Hnstings (2 Harr. 147) 

Lea V. Guice (13 Sm. & M. 656) 



480 

79 

272 

150, 1.54 

74, 82, 
164 
95 
95, 4M4 



Leabo v. (I ode (67 Mo. 126) 
Leach i: Church (15 Oh. St. 169) 

1-. Leach (IS Pick. 68) 196, 204,-384, 

443, 531 

V Milburn Wagon Co. (14 Neb. 

106, 15 N. W. 232) 334 



459 
360 
2 

126 

'2-2 



Leaf's Appeal (105 Pa. 505) 
Leake v. Craddock (3 P. Wms. 158) 
Leame ". Bray (3 East 593) 
Lean v. Schulz (2 W. Bl. 1195) 
Learned v. Ayres (41 Mich. 677, 3 

N. W. 178) 248 

Leather Cloth Co. v. Lorsont (L. R. 

9 Eq. 345) 566 

Leavitt v. Peck (3 Conn. 124) 78, 80, 108 
Leaycraft v. Dempsey (15 Wend. 83) 

515 
Lechmere v. Fletcher (1 Cr. & M 

635) 92, 487 

Ledam v. Hodges (4 McLean 51) 76, 93 
Lee, Ex pane (2 Rose 54) 478 

V. Davis (70 Ind. 464) 201 

V. Dolan (39 N. J Eq. 193) 522 

V. First National Bank (45 Kas. 

8, 25 Pac. 196) 84 

r. Gibbons (14 S. & R. Ill) 317 

V. Lashbrooke (8 Dana 214) 202, 

234, 384, 527 

V. Onstott (1 Ark. 206) 151 

V. Page (30 L. J. Ch. 857, 7 Jur. 

768) 5.30 

i". Reed (4 Dana 112) 511 

V. Stowe (57 Tex. 444) 380, 400 

V. Wilkins (65 Tex. 29.5) 344 

Leeds & T. R. R. y. Fearnley (4 Ex. 

26) 
Lees, Ex parte (1 Deac. 705) 

v. Laforest (14 Beav. 2.50) 

Le Fanu v. Malcomson (1 H L. C. 

637) 320, 321 

Lefever v. Underwood (41 Pa 505) 

193 
Lefevre v. Boyle (3 B. & Ad. 877) 

■ V. Castagnio (5 Col. 564) 

Lefevre 's Appeal (69 Pa. 123) 
Leftwich v. Clinton (4 Lans. 176) 
Legge v. Harlock (12 Q. B. 1015) 
Leggott V. Barrett (15 Ch. D. 306) 
Leidy v. Messinsrer (71 Pa. 177) 
Leigh V Everhart (4 T. B. Mon. 379) 



20 

21 

383 



316 
46, 60 
6 
3>8 
244 
237 
248 



Leighton v. Wales (3 M. & W. 545) 



289 



224 
3:14 



Leinkauff v. Munter (76 Ala. 194) 
Leiserinan v. Bernheimer (113 N. Y. 

39, 20 N. E. 869) 522 

Leithauser v. Baumeister (47 Minn. 

151, 49 N. W. 660) 414 

Lemiette u. Starr (6Q Mich 539, 33 

N. W. 8.32) P3 

Lenow r. Fones (48 Ark. 557, 4 S W. 

5f^) 3f.:; 

Lcri'ck V. Shaftoe (2 Esp. 468) 273 

Le Rov r. Jolm>on (2 Pet. 186) 88, T", 

111, 169, 180, 228, 40.; 

Lesernian r. Bernheimer (113 N. Y. 

3'.t. 2') \ v.. S(V.i) ■J->3 

Le^he u. Wil^y (47 N Y. 649) li'.t 



TABLE OF CASES. 



Lessig V. Langton (Bright. N. P. 191) 



McMaster (49 



292 



Levy V. Alexander (10 So. 394) 

V. Cadet (17 S & R. 126) 

V. Lock (5 Daly 46) 

V. Pyne (1 C & M. 453) 

V. Walker (10 Ch. D. 436) 

V. Williams (79 Ala. 171) 

Lewis, In re (8 N. B. H. 546) 

V. Alexander (51 Tex. 578) 

V. Anderson C^O Oil. St. 281) 



N. 



Letts-Fleteher Co. 

N. W. 1035) 134 

Levally v. FAWs (13 la. 544) 474 

Leverson v. Lane (13 C. B. n. s. 278) 

97, 173 
Levett, Ex parte (1 Glyn & J. 185) 520 
Levi y. Karrick (8 la. 150) 237 

V. Latham (15 Neb. 509, 19 N. W. 

4b0) 83, 84 

Levick's Appeal (2 Atl. 532) 144 

Levine v. Michel (35 La. Ann. 1121) 

284 

104 

160 

537 

82,84 

243 

350, 351 

336 

432 

333, 

366 

Chapman (19 Barb. 252, 16 

Y. 369) 320, 322 

V. Cline (5 So. 112) 333 

V. Conrad (11 la. 153) 474, 476 

('. Culbertson (11 S. & R. 48) 437 

V. Greider (51 N. Y. 231) 57. 60 

V. Langdon (7 Sim. 421) 240, 241, 

242, 243, 244, 289, 440, 441 

I'. Lee (3B. & C. 291) 23 

(,'. Moffett (11 111. 392) 201 

V. Pead (1 Ves. Jr. 19) 511 

y. Reilly (IQ. B. 349) 376,380 

V. Westner (29 Mich. 14) 87 

Liberty Savings Bank v. Campbell 

(75 Va 534) 98 

Liddel, Ex parte (2 Rose 34) 272, 487, 

496 
Liddell v. Crain (53 Tex. 549) 118 

Liddiard, Ex parte (4 Deac. & Ch. 

603) 95, 484 

Lieb V. Craddock (87 Ky. 525, 9 S. W. 

8.38) 68, 105, 409 

Ligare v. Peacock (109 111. 94) 201, 222, 
374, 376, 393, 527 
Lightfoot V. Heron (3 Yoim^e 586) 27 
Lightoller, In re (1 Madd. 346) 474 

Lill (• Egan (89 111. 609) 89 

Lilly r. Kroesen (3 Md. Ch. 83) 515 

Lime Rock Bank v. Phetteplace (8 

R. I. 5(i) 354 

Lime Rock Ins. Co. i'. Treat (58 Me 

415) 170 

Lindli r. Crowly (29 Kas. 756) 171 

Lindley v. Davis (6 Mont. 45-3, 13 

Pac. 118) 350, .351 

Lindsey v. Edminston (25 111. 359) -30 

V. Stranahan (129 Pa. 635, 18 

Atl. 524) 201 

Lindus V. Bradwell (5 C. B. 583) 111 

Lineweaver v. Slagle (64 Md. 465, 2 
Atl. 693) 537, 538, 543 



Cox (6 Barr 360) 
Hastie (2 Caines 246) 



Linford v. Linford (4 Dutch. 113) 345,476 
Lingard v. Bromley (1 Ves. & B. 114) 269 
Lingen v. Simpson (1 Sim. & S. 603) 137, 
278, 338, 489, 504 
Lintner v. Milliken (47 111. 178) 57 

Linton v. Hurley (14 Gray 191) 118 

Litchfield, In re (1 Atk 87) 473 

Littell r. Fitch (11 Midi. 525) 172 

Little V. McPherson (76 Ala 552) 335,361 

V. Snedecor (52 Ala. 167) 354 

Littlewood v. Caldwell (11 Price 97) 28-3, 
291, 45-5, 520 
Livermore v. Rand (26 N. H. 85) 425 

Liverpool B. & R. P. Nav. Co. v. Agar 

(14 F. R. 615, 4 Woods 201) 2 

Livingston v. Blanchard (130 Mass. 
341) 222 

35 

96, 172 

5.32 

r. Lvnch (4 Johns Ch. 573) 191,553 

V. Radcliff (6 Barb. 201) 94, 96 

V. Roosevelt (4 Johns. 251) 37, 84, 

85, 86, 96, 132 
Livingston n- Ralli (5 E. & B. 132) 148, 

219 220 
Lloyd, Ex parte (1 Mont & A. 494) ' 133 

, In re (22 F. R. 88) 478 

, (22 F. R. 90) 476 

V. Archbowie (2 Taunt. 324) 32, 273, 

498 

V. Ashbv (2 C. & P. 138) 75 

V. (2 B. & Ad. 23) 170 

(,'. Bellis (37 Eng. L. & Eq. 545) 124 

V. Loaring (6 Ves. 773) 188, 553, 

V. Passingiiam (Coop. 156) 512 

Lobb, Ex parte (7 Ves. 592) 483, 485 

Lobdell r. Slawson (90 Mich. 201, 61 

N. W. 349) 99 

Locke V. Lewis (124 Mass. 1) 98, 115 

V. Stearns (1 Met. 560) 116, 118, 

124 
Lockwood r. Bartlett (130 N. Y. 340, 29 



N. E. 257) 

V. Comstock (4 McLean 383) 



125 

379, 
381 
68 



V. Doane (107 111. 235) 

v. Middlesex Assur. Co. (47 

Conn. 553) 235 

Lockyer ;;. Savage (2 Str. 947) 467 

Lodge, Ex parte (1 Ves. Jr 165) 489, 491, 

497 

r. Dicas (3 B. & Aid. 611) 94,387, 

414,41.5,416, 482,484,486 
V. Weld (139 Mass. 499, 2 N E. 

95) 242, 243 
Loeb I). Morton (63 Miss. 280) 113 
V. Pierpoint (58 Ga. 469, 12 N. 

W. 544) 134, 135 

Loeschigk v. Addison (19 Abb Pr. 

169) 4.34 
Logan V. Bond (13 Ga. 192) 88, 89 
V. Dixon (73 Wis. 533, 41 N. W. 

713) 306 
V. Greenlaw (25 F. R. 299) 363, 364 



TABLE OF CASES. 



315 

128 
1»5 
404 
197, 
287 
381 

32 "2 
■34(5, 



479 



Logan V. Mason (6 W. & S 9) 425 
V. Trayser (77 Wis. 579, 46 N. 

W. 877) 2G8 

Lomas v. liradshaw (9 C. B. 620) 255 

Loomis V. Loomis (26 Vt. 198) 162 

V. McKenzie (31 la. 425) 293, 425 

V. Marsliall (12 Conn. 69) 45, 47, 53 

V. rierson (Harp. 470) 145 

London Assur. Co. v. Bold (6 Q. B. 

614) 

V. Drennan (116 U. S. 461) 

Long V. Carter (3 Ired. 238) 

y. Garnett (59 Tex. 229) 

V. Majestre (1 Johns. Ch. 305) 

V. Story ( 10 Mo. 636) 378, 

Longman v. Pole (1 D. & L. 126, 1 M. 

& M. 223) 117,179,275 

Lord V. Baldwin (6 Pick. 348) 273 

446, 498 

Loring v. Brackett (3 Pick 403) 145 

Loscombe v. Russell (4 Sim. 8) 280, 281, 

285, 455, 458, 510 

Lothrop V. Adams (133 Mass. 471) 119 

r. VVigtitman (41 Pa. 297) 

Lottimer v. Lord (4 E. D. Smith 183) 

800 
Louden v. Ball (93 Ind. 232) 336 

Louisville, Bank of, v. Hale (8 Bush 

672) 354 

Love n. Moynehan (16 111. 277) 23 

v. Payne (73 Ind. 80) 128 

V. Rliyne (86 N. C. 676) 508 

Lovejoy v. Bowers (11 N. H. 404) 137,337 

V. Spoffurd (93 U. S. 430) 387, 405 

Lovelace's Case (W. Jones 268) 150 

Lovell V. Hicks (2 Y. & C. 481) 244 

Lowe V. Fairlie (2 Madd. 102) 614 

V. Lowe (13 Bush 688) 360 

V. Miller (3 Gratt. 205) 304 

V. Peers (4 Burr. 2225) 224 

Lowell V. Hicks (2 Y. & C. 481) 117 

Lowery v. Drew (18 Tex. 786) 151 

Lowman v. Sheets (124 Ind. 416, 24 

N. E. 351) 84 

Lowndes v. Tavlor (1 Madd. 423) 290 

Lowry v. Brooks (2 McC. 421) 55, 60 

Loyd\;. Freshfield (2 C. & P. 325) 87, 88, 
142, 143, 181 
Lucas V. Bank of Parien (2 Stew. 

280) 146, 153, 406, 412, 413 
V. Beacli (1 Scott N. R. 350, 1 

M. &G. 417) 252,553 

/) De la Cour (1 M. & S. 249) 164 

c. Laws (27 Pa. 211) 325, 339, 340 

V. Sanders (I McMuU. 311) 150, 151 

Lucht V. Behrens (28 Oh. St. 231) 451 
Ludington r. Boll (77 N. Y. 138) 95 

Ludlow V. Cooper (4 Oh. St. 1) 85, 349, 

362 

V. Simond (2 Caines Cas. 1) 150 

Ludwick V. Huntsenger (5 W. & S. 

51) 203 

Lumberman's Bank v. Pratt (51 Me. 

563) 380 



Lumley v. Wagner (5 De G. & S. 485) 

278, 279 
Lunt V. Stevens (24 Me. 534) 143 

Lupton V. Janney (13 Pet. 381) 612 

Lusk V. Smith (8 Barb. 670) 381 

Lutterloh v. Mcllhenny Co. (74 Tex. 

73, 11 S. W. 1063) 400 

Lyles V. Styles (2 Wash. C. C. 224) 

131, 194 
Lyman v Lyman (2 Paine 11) 37, 201 

Lynch v. Bitting (6 Jones Eq. 238) 

215, 513 

V. Thompson (61 Miss. 354) 59, 87 

Lyndon v. Gorham (1 Gall. 367) 325, 339, 

345, 346 
Lyon V. Haines (5 M. & G. 641) 376 

V. Knowles (3 B & S. 656) 41 

V. Tweddell (17 Ch. 1). 529) 529 

Lyons v. Murray (95 Mo. 23, 8 S. W. 

170) 248 

Lysagt t'. Walker (5 Bligh n. s. 1) 424 
Lyster v. Dolland (1 Ves. Jr. 434) 436 

Lyth V. Auit (7 Ex. 667) 416, 482, 484 



M. 



Mabbett v. White (12 N. Y. 442) 135 

McAUester v. Sprague (34 Me. 296) 

144 
McAllister v. Montgomery (3 Hayw. 

94) .362 

McArthur v. Ladd (6 Ohio 614) 60, 151, 

257 

V. Bloom (2 Duer 151) 23 

McBride v. Hagan (1 Wend. 826) 149, 152, 

15.5, 307 
V. Protection Ins. Co. (22 Conn. 

248) 107 
V. Stradley (103 Ind. 465, 2 N. 

E. 358) 201 

McCall V. Moss (112 111. 493) 393, 527 
McCart v. Lewis (2 B. Mon. 267) 151 

McCarty v. Emien (2 Yeates 190, 2 

Dall. 277) 345 

V. Nixon (2 Dall. 65) 443 

V. Seisler (130 Ind. 63, 29 N. E. 

407) 134 
McCauley v. Cleveland (21 Mo. 438) 55 
V. McFarlane (2 Desaus. Ch. 

239) 489, 497 

McCleery v. Thompson (130 Pa. 443, 

18 Atl. 735) 155, 168 

McClelland v. Remsen (14 Abb. Pr. 

332) 184 

McClung V Capehart (24 Minn. 17, 1 

N. W. 123) 306, 506 

McClure v. Hill (.36 Ark. 268) 125 

McClurg V. Howard (46 Mo. 365) 160 

McClurkan v. Byers (74 Pa. 405) 119 

McCoU V. Oliver (1 Stew. 510) 260, 263 
McConkey v. Rogers (Bright. N. P. 

450) 270 
McConnell v. Denvers (35 Cal. 366) 556 
V. Hector (3 B. & P. 113) 26, 309 



lii 



TABLE OP CASES. 



McConnell v. McConnell (11 Vt. 290) 
McCoombe v. Dunch (2 Dall. 73) 
McCord V. Field (27 U. C. C. P. 391) 
McCormick's Appeal (55 Pa. 252) 

(57 Pa. 54) 

V. Stofer (12 S. VV. 151) 

McCov V. Brennan (61 Mich. 362, 28 

N. W. 129) 
McCracken v. Ware (3 Sandf. 688) 

McCrillis v. How (3 N. H. 348) 
McCulloh V. Dashiell (1 H. & G. 96) 

330, 444, 446, 479, 
McCuUough V. Sommerville (8 Leigh 
415) 131, 135, 

McCuUy V. McCully (78 Va. 159) 
McCutchin v. Bankston (2 Ga. 244) 

McCutchon v. Davis (8 S. W. 123) 
McDermot v. Lawrence (7 S. & R. 

438) 354, 
McDonald v. Eggleston (26 Vt. 154) 
V. Holmes (22 Ore. 212, 29 Pac. 

738) 248, 

V. Matney (82 Mo. 358) 

V. Millandon (5 La. 406) 

McDowall V. Wood (2 N. & McC. 

242) 
Mace V. Heath (30 Neb. 620, 46 N. W. 

918) 
McElroy v. Ludlum (32 N. J.Eq. 828) 

V. Swope (47 F. R. 380) 

McElvev V. Lewis (76 N. Y. 373) 293, 
McEvoy V. Bock (37 Minn. 402,34 N. 

W. 740) 
McEwan v. Western Ins Co. (1 Mich. 

N. P. 118) 
McFadden v. Hunt (5 W. & S. 468) 
;;. Leeka (48 Oh. St. 513, 28 N. 

E. 874) 131, 549, 

McFarland v. Bate (45 Kas. 1, 25 Pac. 

238) 

V. Crary (8 Cow. 258) 

V. Stewart (2 Watts 111) 

McGar v. Drake (5 Rep. 387) 
McGaw V. Marshall (7 Humph. 121) 
McGee, Ex parte (9 Ves. 697) 
MacGeorge v. Harrison Chemical 

Mfg. Co. (141 Pa. 575, 21 A.tl. 671) 
McGhees v. McCutchen (82 Ga. 788, 

9 S, E. 785) 
MoGill V. Brown (Bald 66) 
McGinn v. Shaeffer (1 Watts 412) 
McGinnis v. Farrelly (27 F. R. 33) 
McCrowan v. Bank of Ky. (5 Litt. 

271) 
V. Myers (66 la. 99, 23 N. W. 

282) 
McGowan, &c. Co. v. McGowan (22 

Oh. St. 370) 240, 

McGraw v. Pulling (1 Freem. Ch. 

357) 5, 
McGregor v. Bainbrigge (7 Hare 164) 
V. Cleaveland (5 Wend. 475) 



469 
476 
82 
474, 
476 
368 
223 

335 
296, 

297 

16 

327, 

500 

153 
352 
69, 
164 
344 

369 
151 

306 
46 
74 

23 

168 

162 

7 

392 



235 
270 

554 

480 
117 
237 
90 
16 
315 

554 

98 

553 

21 

538 

168 

293 

242 

211 
234 

82 



McGregor v. Ellis (2 Disn 286) 
McGuire v. Ramsey (9 Ark. 418) 
McGunn v. lianlin (29 Mich. 476) 
Machell, Ex parte (2 Ves. & B. 216) 

V. Kinnear (1 Stark. 499) 

Mcllreath v. Margetson (4 Doug. 

278) 
Mcllroy v. Adams (32 Ark. 315) 
Mclntire v. McLaurin (2 Humph. 71) 

V. Oliver (2 Hawks 209) 

Mclver v. Humble (16 East 169) 48, 

412, 
McKacy v. Hebb (42 Md. 227) 
McKay v. Bloodgood (9 Johns. 285) 

V. Joy (70 Cal. 581, 11 Pac. 832) 

V. Overton (65 Tex. 82) 251 

526, 
V. Rutherford (6 Moo. P. C. 413, 

13 Jur. 21) 
McKee v. Bank of Mount Pleasant (7 

Ohio 175) 93, 149, 
V. Hamilton (33 Oh. St. 7) 

r. Stroup (Bice 291) 142,144. 

Mackeller v. Wallace (8 Moo. P. C. 

378) 
Mackenna v. Parkes (36 L J. n. s. Ch. 

366) 
McKenzie v. Garrison (10 Rich. 234) 

V. Nevins (22 Me. 138) 

McKinney v. Alvis (14 111. 34) 

V. Baker (9 Ore. 74) 231, 

V. Brights (16 Pa. 399) 

McKnight v. McCutcheon (27 Mo. 

4.36) 
V. Ratcliffe (44 Pa. 156) 



117, 
McKowan u. McGuire (15 La. Ann. 

637) 
Maclae v. Sutherland (3 E. & B. 1 ) 

113, 
McLanahan v. Ellery (3 Mass 269) 
McLane v. Abrams (2 Nev. 199) 
McLean, In re (15 N. B. R. 333) 330, 

r. Fleming (96 U. S 245) 

McLellan v. Cumberland Bank (24 

:\Ie. 566) 
McLinden v. Wentworth (51 Wis 170, 

8 N. W. 118) 
McMaster v. Vernon (3 Duer 249) 
McMillan r. Hadley (78 Ind. 590) 
McMinn v. Richmonds (6 Yerg 9) 
McMuUan v. McKenzie (2 Greene 

368) 
McNamara v. Eustis (46 Minn. 311, 

48 N. W. 1123) 
McNaughten v. Partridge (11 Ohio 

223) 91, 92, 93, 149. 151, 

McNaughton's Appeal (101 Pa. 550) 
McNair y. Fleming (3 Dow 229) 170, 

V. Piatt (46 111. 211) 

r. Rewey (62 Wis. 167, 22 N. W. 

339) 
V. Wilcox (121 Pa. 437, 15 Atl. 

575) 98, 

McNeely v. Haynes (76 N. C. 122) 



131 

352 

9 

478 

316 

194 
125 
311 
160 
107. 
492 
508 
150 
434 
255. 
527 



155 
165, 
182 
179 

511 

530 
470 
425 

482 
335 
173 

250 
540 

4.34 
110, 
183 
312 
203 
500 
243 

144 

427 

92 

368 

16 

107 

69 

508 
99 

182 
97 

335 

308 
119 



TABLE OF CASES. 



liii 



McNeil V. Congregational Society (66 

Cai. 105) 368 
V. Reid (9 Bing. 68,2 Moo. & Sc. 

89) 11,210 

McNeish v. Hulless Oat Co. (57 Vt. 

316) 131, 433 

McNutt V. K'ng (59 Ala. 597) 469 

V. Stravhorii (39 Pa. 269) 134 

Macon Co. o. Kodgers (84 Mo. 66) 203 
McPlierson v. Katlibone (7 Wend. 

216) 69, 107 

McUae v. McKenzie (2 Dev. & B. 

232) 280, 509 

McSherry v. Brooks (46 Md 103) 255 
McStoa V. Mattliews (50 N. Y. 166) 103 
McVicker v. Cone (21 Ore. 353, 28 

Pac. 76) 49 

McWiiorter i'. McMahan (1 Clarke 

Ch. 400) 150, 153 



Macy V. Combs (15 Ind. 469) 

/•. De Wolf (3 W. & M. 193) 

Maddeford y. Austwick (1 Sim. 89) 

Maddick v. Marshall (16 C. B. n. s. 

387, 17 C. B. N. s. 829) 
Maddock v. Asibury (32 N. J. Eq 

181) 
Maddox i-. Dent (4 Md. Ch. 543) 
Madgwick v. Wimble (6 Beav. 495) 



60 

66 

195, 

199 

103 

360 
516 
297, 
300 



Madison County Bank v. Gould (5 

Hill 309) 538, 540, 546, 547 

Maffet V. Leuckel (93 Pa. 468) 96 

Magill V. Merrie (5 B. Mon. 168) 405, 406 
Magovern v. Robertson (116 N. Y. 

61, 22 N. E. 398) 61 

Mahnke v. Neale (23 W. Va. 57) 512 

JMainwaring v. Newman (2 B. & P. 

120) 270, 307 
Mair v. Glennie (4 M. & S. 240) 55, 60 
Maise v. Garner (Mart. & Y. 383) 289 
Major V. Hawkes (12 111. 298) 386 
V. Todd (84 Mich. 85, 47 N. W. 

841) 
Malcomson v. Malcomson (L. R. 1 Ire. 

228) 
Maley v. Newman (5 D. & R. 317) 
Mallory v. Hanauer Oil Works (86 

Tenn. 598, 8 S W. 396) 27, 
V. Russell (71 la. 63, 32 N. W. 

102) 
Maloney v. Bruce (94 Pa. 249) 
Maltby v. N. W. & R. Co. (16 Md. 

422) 
Manahan r. Gibbons (19 Johns. 109) 
Manchester Bank, Ex parte (12 Ch. D. 

917) 
Manchester Co., Ex parte (L. R. 18 

Eq. 249, 
Manck v. Manck (54 111. 281) 
Manderson's Appeal (113 Pa. 631) 
Manderston v. Robertson (4 M. & R. 

440) 
Mandeville v. Mandeville (35 Ga 243) 
Maneely v. McGee (6 Mass. 143) 



393 

183 
462 

564 

366 
537 



253 

442 

481 
354 
563 

157 
52 

483 



Manhattan Brass Co. v. Sears (45 N. 

Y. 797) 46 

Manhattan Co. v. Laimbeer (108 N. 

Y. 578, 15N. E. 712) 546 

V. Ledyard (1 Cai. 191) 168 

Manley v. Ins. Co. of N. Amer. (1 

Lans. 20) 235 

Mann v. Bowen (85 Ga. 616, 11 S. E. 

862) 259 

V. Connell (1 Whart. 388) 371 

V. Flanagan (9 Ore. 425) 201 

f. Locke (11 N. H. 246) 160,162 

Manning i-. Gasharie (27 Ind. 399) 550 

V. Hays (6 Md. 5) 171, 187 

V. Wadsworth (4 Md. 59) 209, 210, 

252, 257 
Mansfield u. Watson (2 Clarke 111) 27 
Manuf. & Mech. Bank v. Gore (15 

Mass 75) 119 

V. Winship (5 Pick. 11) 114, 171 

Manville v. Parks (7 Col. 128) 34, 52, 87 
Many, 7« re (17 N. B. R. 514) 125 

Marble v. Lypes (82 Ala. 322, 2 So. 

701) 
Marietta Iron Works v. Lattimer (25 

Oh. St. 621) 
Marine Bank i: Ogden (29 III. 248) 
Marine (l^o. of Chicago v. Carver (41 

III. 66) 
Mariott v. Shaw (Com. 277) 
Markham v. Gehan (42 Mich. 74) 

V. Jones (7 B. Mon. 456). 

V. Merritt (7 How. j\Iiss. 487) 

354, 355, 358, 362 
Marks v. Stein (11 La. Ann. 509) 248 
Marlett v. Jackman (3 AH. 290) 432, 433, 

436, 446 
Marquand v. New York Mfg. Co. (17 

Johns. 525) 10, 127, 128, 129, 138, 391, 
463, 465, 466, 555 
Marsh v. Davis (33 Kas. 326, 6 Pac. 

612) 7, 350 

V. Gold (2 Pick. 285) 35, 147 

V. Hutchinson (2 B. & P. 226) 22, 23 

V. Keating (1 Mont. & A. 592, 2 

CI. & F. 250) 122 

V. N. W. Ins. Co. (3 Biss. 351) 57 

.Marsh's Appeal (69 Pa. 30) 193, 201 

Marshall v. Colman (2 J. & W. 266) 111, 

227, 257, 284, 285, 288, 455, 456, 457, 

507, 510 



68, 104 



203 
28 

100 
324 
345 
104 
349, 



V. Johnson (33 Ga. 500) 

V. Lambeth (7 Rob. La. 471) 



216 
544, 
545 
372 
22 



V. Marshall (2 Bell Com. 641) 

V. Button (8 T. R. 545) 

Marten v. Van Schaick (4 Paige 479) 237, 

241, 293, 296, 297, 298 

Martin v. Brydges (3 C. & P. 83) 157 

V. Fewell (79 Mo 401) 49, 404 

V. Kirk (2 Humph. 529) 379, 381 

V. Mayo (10 Mass. 137) 18, 21 

V. Meyer (45 F. R. 435) 334 

1-. Morris (62 Wis. 418, 22 N. W. 

525) 364 



liv 



TABLE OF CASES. 



Martin v. Muncy (40 La. Ann. 190, 3 

So. 640) 168 

r. Hoot (17 Mass. 227) 159, 163 

V. Smith (25 W. Va. 579) ^03 

V. Thrasher (40 Vt. 460) 148 

V. Walton (1 McC. 10) 378, 406 

Martyn v. Gray (14 C. B. n. s. 824) 103 
Marvin y. Trumbull (Wright 386) 353 
Marx V. Goodnough (16 Ore. 26, 16 

Pac. 918) 343, 344 

Mason r. Oonnell (1 Whart. 381) 10, 128, 

142, 3y6, 555 

r. Eldred (6 Wall. 231) 76 

r. Hafkt'tt (4 Nev. 420) 57 

I'. Jouett (2 Dana 107) 144 

V. Potter (26 Vt. 722) 45, 60 

V. Kumsey (1 Camp. 384) 111 

V. Wicl<ersham (4 W. & S. 100) 96 

: V. Wright (13 Met. 306) 16 

Masonic Savings Bank v. Bangs (10 

S. W. 633) 526 

Masson, Ex parte (1 Rose 159) 487 

Master v. Kirton (3 Ves. 74) 286, 288, 874, 

456 
Mathews v. Felch (25 Vt. 536) 103, 107 
Mathewson v Clark (6 How. 122) 10, 128, 

138, 556 

Matlock V. Matlock (5 Ind. 403) 325, 327, 

349, 354, 361 

Matteson v. Nathanson (38 Mich. 377) 168, 

489 

Matthews, Ex parte (3 Ves. & B. 125) 77, 

106, 271, 498 

r. Dare (20 Md. 273) 402 

r. Hunter (67 Mo. 293) 364 

I'. Wallyn (4 Ves. 118) 516 

Mattison v. Farnham (44 Minn. 95, 46 

N. W. 347) 65, 452 

Maude v. Rodes (4 Dana 144) 456 

Maughlin v. Tyler (47 Md. 545) 134 

Mauldin v. Branch Bank (2 Ala. 511) 97, 
172, 180. 184, 185, 406 
Maund v. Allies (5 Jur. 860) 515 

Maunev v. Coit (80 N. C. 300) 168 

V.' (86 N. C. 463) 46 

Mawman ik Gillett (2 Taunt. 327) 30, 278 
Mawson r. Blane (10 Ex. 206) 18 

Maxey v. Strong (53 Miss. 280) 103 

Maxwell r. Day (45 Ind. 509) 94, 95 

V. Deare (8 Moo. P. C. 368) 488 

V. Jameson (1 B & Aid. 51) 269 

V. Port Tennant Co. (24 Beav. 

495) 384 

May V. Chapman(16 M. & W. 355) 175, 181 

V. Hewit (33 Ala. 161) 111 

V. New O & C. R. R. (44 La. 

Ann. 444, 10 So. 7.69) 351 

Mayberry v. Bainton (2 Harr. 24) 185 

V. Willoughby (5 Neb. 368) 160 

Mayer v. Clark (40 Ala. 259) 327, 38'^ 
V. Garber (53 La. 689, 6 N. W. 

68) 231 

Mayhew v Earaes (1 C. & P. 550) 164 

V. Herrick (7 C. B. 229) 303, 321, 

338, 339, 340 



Maymott v. Maymott ( 9 Jur. n. s. 

4',)6) 
Maynard v. Fellows (43 N. H. 255) 



Maynoketa v. Willey (35 la. 323) 
Mayou, Ex parte (4 De G. J. & S 

664) 
Mayrant v. Marston (67 Ala. 453) 
Mead v. Nat. Bank (6 Blatcli. 180) 

V. Tomlinson (1 Day 148) 

>:. Wheeler (13 N. H. 351) 

Meaders v. (iray (60 Miss. 400) 
Meador v. Hughes (14 Bush 652) 



202 
170, 

182 
328 



Meagham, In re (1 Sch. & L. 179) 



332 
47 

487 
89, 91 
224 
203 
29, 59, 
471 
467 



Meagher v. Reed (14 Col. 335, 24 Pac. 



681) 
Mealier v. 



Cox (37 Ala. 201) 



7, 12, 84 

129, 371, 

454, 566 

150 
249, 279 

514 



Mears v. Serocold (7 T. R. 208) 
Meason v. Kaine (63 Pa. 335) 
Mebane v. Mebane (1 Ired. Eq. 408) 
Mechanics' Bank v. Barnes (86 Mich. 

632, 49 N. W. 475) 187 

V. Foster (44 Barb. 87) 87, 180 

V. Hildreth (9 Cush. 359) 382 

V. Seaton (1 Pet. 299) 469 

Mechanics' & Traders' Ins. Co. v. 

Richardson (33 La. Ann. 1308) 98 

Medberry r. Soper (17 Kas. 869) 81 

Medbury r. Watson (6 Met. 246) 313, 320 
Medill V. Collier (16 Oh. St. 599) 50 

Meech v. Allen (17 N. Y. 300) 836 

Meehan v. Valentine (145 U. S. 611) 46, 

58,61 
Meggett V Finney (4 Strobh. 220) 162 
Meguiar v. Helm (14 S. W. 949) 212, 231 
Melioruchi v. Royal Ex. Ass. Co. (1 

Eq. Abr. 8) 516 

Mclledge v. B. Iron Co. (5 Cush. 170) m 
Mellen v. Whipple (1 Gray 317) 317 

Mellersh v. Keen (27 Beav. 236) 396, 460 

V. (28 Beav. 453) 237, 238 

Melville v. Brown (15 Mass. 82) 446 

Menagh v. Whitwell (52 N. Y. 146) 331, 

332, 310 
Mendenhall v. Benbow (84 N. C. 646) 360 
Meneely v. Meneely (62 N. Y. 427) 242 
Menkins v. Lightner ( 18 111. 282) 27 

Mercantile Bank v. Cox (38 Me. 500) 75. 

104 
Merchants' Bank v. Rudolf (5 Neb. 

527) 118> 

Merchants' & Manufacturers' Bank v. 

Stone (38 Mich. 779) 5(! 

Mercein v. Andrus (10 Wend. 261) 173 
Mercer v. Saver (Anth. N. P. 162) 163 
Meredith v. Ewing (85 Ind. 410) 217, 24^ 
Merrick v. Brainard (38 Barb. 574) 39] 

V. Gordon (20 N. Y. 93) 65 

Merrill, In re (13 N. B R. 91) 538 

MeMt V. Pollys (16 B. Mon. 355) 160, 406, 

407, 412 
Merritt v. Day (38 N. J. 32) 160, 162 
V. Dickey (38 Mich. 41) 363 



TABLE OF CASES. 



Iv 



Merritt v. Walsh (32 N. Y. 685) 60 

V. Williams (17 Kas. 2^1) 408 

Merrivveather v. llarduman (51 Tex. 

486) 248, 512 

Merry ». Hoopes (HI N. Y. 415, 18 

N. E. 714) 237,244 

Merry weather v. Nixon (8 T. R. 186; 254, 

267, 269 
Mersereau v. Norton (15 Johns. 179) 304 
Mershon v. Hobensack (2 Zab. 372) 108, 107 
Messer n. Messer (50 N. 11. 375) 352, 366 
Metcalfy. Bruin (12 East400, 2 Camp. 
422) 316 

V. Fouts (27 111. 110) 37'.) 

u Officer (2 F. R. 640) 32, 68 

y. Heiimon (43 111. 264) 10 

V. Royal Exch. Ass. Co. (Barn. 

343) 132, 302, 557 

Metcalfe v. Rycroft (6 M. & G. 75) 149, 

155, 316 
Metropolitan S Q. Co. v. Hawkins (4 

H. &N. 87) 322 

Metropolitan Nat. Bank v. Sirret (97 

N. Y. 320) 537 

Meux V. Humphrey (8 T. R. 25) 145, 183 
Meyberff y Steagall (51 Tex. 351) 344 
Meyer v. Atkms (29 La. Ann. 586) 168 

V. Krohn (114 111. 574,2 N. E. 

495) 28, 128, 404 

V. Larkin (3 Cal. 403) 88 

V. Sharpe (5 Taunt. 74) 55 

IMilbank v. Revett (2 Mer. 405) 294, 295 

Milburn v. Codd (7 B. & C. 419) 248,219, 

253, 2(57, 553 

V. (1 M. & R. 238) 553 

Michael u. Workman (5 W. Va 391) 110 
IMickle 0. Peet (43 Coini. 65) 248 

Mifflin V. Smith (17 S. & \l. 165) 37, 38, 
74,88, 111, 114,212.443 
Miles V. Thomas (9 Sim. 606) 194,388,510 

V. Wann (27 Mmn. 56) 49 

Millar r. Craig (6 Beav. 433) 515, 520 
Millard o. Hewlett (19 Wend. 301) 19 
Miller r. Andres (13 Ga. 366) 271, 508 

V- Bailey (19 Ore. 539, 25 Pac.27) 254 

V. Bartlet (15 S. & II. 137) 60 

V. Chambers (73 la. 236, 34 N. W. 

830) 393 

V. Chandler (29 La Ann. 88) 60 

V. Consolidation Bank (48 Pa. 

514) 182 

V. Estill (5 Oh. St. 508) 231, 327, 328, 

335, 338 

V. Fenton (11 Paige 18) 269 

V. Harris (9 Baxt. 101) 306 

V. Hines (15 Ga. 197) 82, 97, 99, 171 

V. Hughes (1 A. K. Marsh. 181) 58 

r. Jones (39 111 54) 293, 434 

V. Maince (6 Hill 114) 75, 143, 170 

V. Marx (65 Tex. 131 ) 23, 24, 25, 44 

V. Miller (8 W. Va. 542) 95 

0. Morrice (6 Hill 114) 88 

V. Neimerick (19 111. 172) 162 

V. Price (20 Wis. 117) 222 

V. Sims (2 Hill S. C. 479) 20 



Miller v. Thompson (3 M. & G. 576) 
V. Thorn (R. M. Charlt. 180) 



169 
307, 
309 
515 
435 
94 
615 
380 



V. Wornack (Freem. Cli. 486) 

Miller's Appeal (7 Atl. 190) 
Millerd v. Thorn (56 N. Y. 402) 
MiUiken v. Gardner (37 Pa. 456) 

i: Loring (37 Me. 408) 

Mills r. Argall (6 Paige 577) 136, 540 

V. Barber (4 Day 428) 131, 134, 139, 

150 

V. Boyd (6 Jur 943) 484 

V. Fellows (30 La. Ann. 824) 303 

v. Hanson (8 Ves. 08) 517 

V. Hurd (29 F. R. 410) 559, 560 

V. Osborne (7 Sim. 37) 219 

V. Thomas (9 Sim. 609) 285, 286 

Milmo Nat. Bank v. Carter (20 S. W. . 

836) 30 

Milne v. Bartlet (3 Jur. 358) 390, 461 

V. Moreton (0 Binn. 353) 468 

Milnes v. Cowley (8 Price 620) 512 

.Milton V. Mosher (7 Met. 244) 133, 153 
Miner r. Downer (19 Vt. 14) 106 

V. Pierce (38 Vt. 610) 97 

Minnit v. Whinnery (5 Bro. P. C. 

489) 79, 383, 406 

Minor v. Gaw (11 Sm. & M. 322) 98, 178, 

179 
Miser v. Trovinger (7 Oh. St. 281) 165 
Missouri Pac. Ry. v. Johnson (7 S. W. 

838) 60 

Mitchell, Ex parte (14 Ves. 597) 146 

v. Cockburne (2 H. Bl. 379) 9 

V. Dall (2 H. & G. 159, 4 G. & J. 

361) 32,273,410,420 

/•. Harris (2 Ves. Jr. 134) 220 

I'. Ostrom (2 Hill 520) 381 

V. Read (61 N. Y. 123, 84 N. Y. 

556) 196, 204 

>'. Reynolds (Fort. 296, 1 P. 

Wms. 181) 401 

V. Roulstone (2 Hall 351) 69 

r. Tarbutt (5 T. R. 649) 124, 125, 126 

('. William (4 Hill 13) 124 

Mitchum v. Bank of Ky. (9 Dana 

166) 406 

Mix V. Shattnck (50 Vt. 421) 160 

Moale V. HoUins (11 G. & J. 11) 76 

Mobile, Bank of, o. Andrews (2 Sneed 

535) 433 

Moddewell v. Keever (8 W. & S 63) 10, 
127, 128, 138, 555 
Mode V. Penland (93 N. C. 292) 120 

Moderwell v. MuUison (21 Pa. 257) 309 
Modisett v. Liiidley (2 Blackf. 120) 151 
Moffat V. McKissick (8 Baxt 517) 111 

p. Moffat (10 Bosw. 468) 77, 506 

V. Van xMillenger (2 B. & P. 124) 270, 

307 
Moffitt V. Roche (92 Ind. 96) 78, 168 

Mogul S. S. Co. V. McGregor, (1892, 

A. C. 25) 500, 566 

Mohawk & Hudson R. R. v. Niles (3 
Hill 162) 66 



Ivi 



TABLE OF CASES. 



17 
477 



55:^ 
4! (3 
273 



Moley V. Brine (120 Mass. 324) 
Moline Co. v. Webster (26 111 233) 
Moline Wagon Co. v. Rumniell (12 

F. K. 658, 14 F. R. 155) 97, 404 

Moller V. Lambert (2 Camp. 548) 316 

Mollwo V. Court of Wards (L. R 4 

P. C. 419) 42, 43 

Molony v. Davis (48 Pa. 512) 251 

Moneypenny c. Hartland (1 C. & P 

352, 2 C. & P. 378) 
Monkiiouse v. Hay (2 Br. & B. 114) 
Monroe v. Ezzell (11 Ala. 603) 

V. Conner (15 Me. 178) 80, 371 

Mont c. Mainwaring (8 Taunt. 139) 69 
Montague v. Hayes (10 Gray G09) 527 

f. ^mitli (13 Mass. 405) 316 

Montgomery, Ex jKirle (1 ulyn & J. 

341) 503, 531 

f. Boone (2 B Mon. 244) 150, 154 

Montgomery & E. Rv. v. Culver (75 

Ala. 587) 
Montjoys v. Holden (Litt. 447) 
Montreal, Bank of, v. Page (98 111. 

109) 168, 

Montz V. Morris (89 Pa. 392) 
Moody V. Downs (63 N. H. 50) 475, 476 

V. Lucier (62 N. H. 584) 836 

V. Payne (2 Johns. Ch. 548) 290, 325, 

338, 344, 391, 475 

V. Rathburn (7 Minn. 89) 5 

Mooers v. White (6 Johns. Ch. 360) 512 
Moon (•. Story (8 Dana 2:33) 
Moore, Ex parte ( 2 Glyn & J. 166) 

V. Bare (11 la. 198) 

V. Brink (6 Th. & C. 227) 

V. Davis (11 Cli. D. 261) 

V. Gano (12 Ohio 300) 

n. Hill (2 Peake 10) 

V. Huntington (17 Wall. 417) 

;• Knight (1891, 1 Ch. 547) 

r. Sample (3 Ala. 319) 

V. Smith (19 Ala. 774) 

r. Stevens (60 Miss. 809) 

Moore's Appeal (19 Atl. 753) 
Moorehead v Gilmore (77 Pa. 118) 168 
Moran v. Palmer (13 Mich. 367) 350 

Moravia v. Levy (2T. R. 483) 260, 262, 519 
Moreau v. Saffarans (3 Sneed 600) 352, 354 



65 
304 



374 
347 



439 

473 

138 

550 

59 

247 

312 

524 

121 

291, 344 

45, 60 

150, 151 

195, 523 



Moredon v. Wyer (6 M. & G. 278) 
Morehead v. Adams (18 Neb. 569, 26 
N. W. 242) 

V. Wriston (73 N. C. 398) 

Moreton v. Hardren (4 B. & C. 223) 



145 

332 
429 
124, 
126 
293 
146 



Morey v. Grant (48 Mich. 326) 
Morgan. Ex jmrte (Buck 109) 

v. His Creditors (20 Mart. 599) 330, 

444 

V. Pierce (59 Miss. 210) 84 

V. Richardson (16 Mo. 409) 155 

V. Schuyler (79 N. Y. 490) 243 

V. Skidmore (55 Barb. 263) 476 

r. Stearns (41 Vt. 397) 57 

Morganthau v. King (15 Col. 413, 24 
Pac. 1048) 347 



Morin v. Martin (25 Mo. 360) 249, 268 
Morisset v. King (2 Burr. 891) 62 

Montz V. Peebles (4 E. D. Smith 135) 217, 

279 
Morley, Ex parte (L. R. 8 Ch. 1026) 442 

V. Gaisford (2 H Bl 442) 126 

Moms V. Allen (1 McCart 44) 195, 203, 

527 

V. Barrett (3 Y. & J. 384) 350, 353, 

354 

216, 279 

202 

157) 449 

450, 518 



Colman (18 Ves. 437) 
Griffin (49 N. W. 846) 
Harrison (Colles P. C. 



V. Hillery (7 How. Miss. 61) 309 

V. Jones (4 Harr. 428) 150 

V. Kearsley (2 Y. & C. 1B9) 362, 364 

V. Peckham (51 Conn. 128) 7, 279 

Morris Run Coal Co. v. Barclay Coal 

Co. (68 Pa. 173) 9, 566 

Morrison v. Atwell (9 Bosw. 503) 139 

V. Blodgett (8 N. H. 231) 137, 291, 

325, 337, 338, 342, 343, 345 

V. Cole (30 Mich. 102) 57 

V. Kentz (15 111. 193) 331 

V. Stockwell (9 Dana 172) 255 

Morrow v. Riley (15 Ala. 710) 263, 508 

V. Saunders (1 Br. & B. 318) 211 

Morse c. Bellows (7 N. H. 567) 152, 382 
V. Hagenah (68 Wis. 603, 32 N. 

W. 6-34) 168 

V. Wilson (4 T. R. 35.3) 62 

Morss V. Gleason (64 N. Y. 204) 333 

Mortley v. Flanagan (.38 Oh. St. 401) 335 
Morton v. Croghan (20 Johns. 123) 22 

I'. Webb (7 Vt. 123) 273 

Moser v. Libenguth ( 1 Rawle 255) 94 

Moses r. Hatfield (27 S. C 324, 3 S. 

E. 538) 131 

Moss V. Jerome (10 Bosw. 220) 77 

V. McCall (75 111 190) 203, 212 

V. McCullough (5 Hill 1-35) 76 

Motley V. Dounman (3 My. & C 1) 322 
V. Frank (87 Va. 432, 13 S. E. 

26) 115 

V. Jones (3 Ired. Eq. 144) 60 

Motteux V. St. Aubin (2 W. Bl. 11-33) 155 
Moule, Ex parte (14 Ves. 602) 21 

r. HoUins (11 G. & J. 11) 91 

Moult, Ex parte (1 Deac. & Ch. 44, 

2 id. 419, 1 Mont. 292) 444, 487, 495, 

496 
Mounstephen v. Brooke (1 Chitty 391) 142 
Mo watt V. Howland (3 Day 353) 406 

Mover v. Drummond (32 S. C. 165, 

lb S. E. 952) 351 

Mudd V. Bast (34 Mo. 465) 32 

Mulford V. Griffin (1 F. & F. 145) 407 

MulhoUan v. Eaton (11 La. 291) 516 

Mullany v. Keenan (10 la. 224) 271 

MuUett V. Hook (1 M. & M. 88) 272 

Mumford v. McKay (8 Wend. 440) 376 

r. Murrav (1 Paige 620) 479 

V. Ni<'oir(20 Johns. 611) 37, 66, 81 

Munroe v. Cooper (5 Pick. 412) 180 



TABLE OF CASES. 



Ivii 



Munroe v. Ezzel (11 Ala. 603) 317 

Munsey v. Butterficld (133 Mass. 492) 238 
Munson v. Wickvvire (21 Conn. 513) 165 
Munzesheimer v. fleinze (74 Tex. 254, 

11 S. VV. 1094) 150 
Murpliy, In re (1 Sch. & L. 44) 467 
Murray, In re (13 K. R. 550) 104 
r. Ayer (16 U. I. 6(35, 19 Atl. 

241) 168 

V. Bogert (14 Johns 318) 10, 127. 

248, 260, 269, 555 

V. Col. Ins. Co. (11 Johns. 302) 319 

V. .Mumtbrd (6 Cow. 441 ) 304, 443, 447 

V. Murray (5 Jolins. Ch. 60) 137, 325, 

329, 330, 466, 469, 478, 500 

V. Richards (1 Wend. 58) 12 

V. Soiuerville (2 Camp. 99) 88 

V. Stevens (1 Rich. Cas. 205) 53 

V. Toland (3 Johns. Ch. 569) 518 

Murrell v. Mandlebauni (19 S. W. 

880) 350 

Murrill v. Neill (8 How. 414) 331, 479 

Murry v. Murry (5 Johns. Ch. 60) 436 
Muse V. Donelson (2 Hiunpli. 166) 160 
Musgrave v. Drake (5 Q. B. 185) 99, 180 
Musier v. Trumpour (5 Wend. 274) 53, 

265 
Musselman's Appeal (62 Pa. 81) 236, 238 
Musser v. Brink (68 Mo. 242, 80 Mo. 

350) 53 

Musson r. May (3 Ves. & B. 194) 447 

Mutual Benefit Ins. Co. v. Hildyard 

(37 N. J. L 444) 26 

Mutual Institution v. Euslen (37 Mo. 

453) 378 

Mut. Nat. Bank v. Richardson (33 La. 

Ann. 1312) 98 

Muzzy V. Wiiitney (10 Johns. 226) 60 

Myatts V. Bell (41 Ala. 222) 95, 160 

Mycock V. Beatson (13 Ch. D. 384) 305, 

529 
Myers v. Buggy Co. (54 Mich. 215, 19 

N. W. 961) 238 

V. Edge (7 T. R. 254) 314, 315 

V. Huggins (1 Strobh. 473) 379 

r. Smith (14 la. 181) 385 

V. (29 Oil. St. 120) 336. 345 

V. Standart (11 Oh. St. 29) 162, 163, 

380 

V. Winn (16 IIL 135) 253 

Myrick v. Dame (9 Cush. 248) 246 



N. 



Nadnay ;'. Harvey (9 Gratt. 466) 94 

Nail V. Mclntyre (31 Ala. 532) 97, 274 
Napier v. Catron (2 Humph. 534) 150, 

151,508 

i: McLeod (9 Wend. 120) 152, 383 

Nason, Ex parte (70 Me. 363) 182, 487 
National Exchange Co. v. Drew (2 

Macq. 103) 116, 124 

Natusch V. Irving (Gow Part. 398) 166, 

191, 212, 285 



Nay lor. In re (2 Deac. & Ch. 186) 473 

i;. Sidener (106 Ind. 179) 293 

Neale v. Turton (4 Bmg. 149) 246, 255, 553 
Near v. Lowe (49 Mich. 482, 13 N. W. 

825) 306 

Nedliam's Case (8 Co. 136) 143 

Nehrboss v. Bliss (88 N. Y. 600) 333, 434, 

437 
Neil v. Greenleaf (20 Oh. St. 567) 254, 255 
Neilson v. Moesend Iron Co. (11 App. 

Cas. 298) 
Nelms V. McGraw (93 Ala. 245, 9 So. 

719) 
Nelson, Ex parte (1 Cow. 424) 

V. Hill (5 How. 127) 

V. Lloyd (9 Watts 22) 

V. Tenney (36 Hun 327) 

Nerot V. Burnand (2 Russ. 56) 

V. (4 Russ. 247) 

Ness 1-. Antjas (3 Ex. 805) 

Newall V. Bartlett (114 N. Y. 399, 21 

N. E. 990) 

V. Hussev (18 Me. 249) 

Newbiggin v. Pillans (2 Bay 462) 
Newhigging v. Adam (34 Ch. D. 

582) 
Newbrau v. Snider (1 W. Va. 153) 
Newburg Petroleum Co. v. Weare 

(27 Oh. St. 343) 
Newhurgh, Bank of, i-. Bigler (83 N. 

Y. 51) 
Newby v. Harrell (99 N. C. 149, 5 S. 

E. 284) 
Newell V. Cochran (41 Minn. 374, 43 

N. W. 84) 7, 196 

V. Humphrey (37 Vt. 265) 439, 447 

v. Townsend (6 Sim. 419) 290 

Newliall V. Buckingham (14 111. 405) 344 
New Hampshire Ins. Co. v. No ves (32 

N. H. 345) ■ 20 

Newland v. Tate (3 Ired. Eq. 226) 129, 200, 

384 
Newman v. Bagley (16 Pick. 570) 446 

V. Baker (9 Johns. 207) 81 

V. Bean (21 N. H. 93) 60, 325, 338 

V. McComas (43 Md. 70) 160 

V. Milner (2 Ves. 483) 288 

V. Morris (52 Miss. 402) 24 

V. Payne (2 Ves. Jr. 199) 516 

V. Richardson (9 F. R. 865) 99 

Newmarch v. Clay (14 East 239) 421,424, 

425 
Newmarket Nat. Bank v. Locke (89 

Ind. 428) 476 

New Orleans v. Gauthreaux (32 La. 

Ann. 1126) 46 

New Orleans, Bank of, v. Matthews 

(49N. Y. 12) 403 

Newsome v. Coles (2 Camp. 617) 108, 403, 

412 
Newton v. Belcher (12 Q. B. 921) 427 
New Vienna Bank v. Johnson (47 Oh. 

St. 306, 24 N. E. 503) 351 

New York, Bank of, v. Vanderhorst 

(32 N. Y. 553) 432 



213 



57 

22 

445 

69 

136 

504 

389 

25, 130 



118 

483 

23 

305 

222 

50 
451 
304 



Iviii 



TABLE OF CASES. 



Kew York Ins. Co. v. Bennett (5 Conn. 

674) 87, 180, 184, 

(.'. Statliam (93 U. S. 24) 

Nicliol V. Stewart (oG Ark. urj) 97, 
Kicliolaus V. Thielges (50 Wis. 491, 7 

N. VV. 341) 
NiclioUs V. Dowding (1 Stark. 81) 

163, 
Nichols V. Anguera (2 Mills 290) 

V. Cheairs (4 Sneed 229) 75, 76, 

96, 

V. Hughes (2 Bail. 109) 

V. Sober (38 Mich. 678) 

17. White (85 N. Y. 531) 

Nicholson v. Janevvay (1 Green 285) 

r. Moog (G5 Ala. 471) 404, 

r. Kicketts (2 E. & E. 497) 

NicoU i: Glennie (1 M. & S. 588) 

V. Mumt'ord (4 Jolms. Ch. 522) 

66, 128, 137, 138, 
Niehoff V. Dudley (40 111. 406) 
Niemann v. Niemann (43 Ch. D. 198) 

Nightingale ?'. Scanimell (6 Cal. 506) 
Niras, In re (16 Blatch.439) 113, 

V. Bigelow (44 N. H 376) 

Nirdlinger v. Bernheimer (133 N. Y. 

45, 30 N. E. 561) 33, 128, 

Nisbet V. Nasli (52 Cal. 540) 34, 

1-. Patton (4 Kawle 120) 

Niven v. Spickerman (12 Johns. 401) 

258, 
Nixon V. Nash (12 Oh. St. 647) 344, 
Noble V. McClintock (2 W. & S. 152) 

Nobles V. Eatea (7 Cow. 307) 
Nockels V. Crosby (3 B. &C. 814, 5 D. 

& R. 751 ) 252, 456, 

Noel V. Bowman (2 Litt. 46) 
'Nokes, Ex parte (1 Mont. Part. 114) 

I'. Leppings (2 Phil. 19) 

Nolte, Ex parte (2 Glyn & J. 295) 185, 
Noonan v. McNabb (30 Wis. 277) 
V. Nunan (76 Cal. 44, 18 Pac. 

98) 10, 128, 343, 

Norfolk, Ex parte (19 Ves. 458) 271, 
Norman y. Huddleston (64 111. 11) 136, 
Norment v. Hull (1 Humph. 320) 

r. Johnson (10 Ired. 89) 

Norris v. Vernon ( 19 Md. 13) 
North V. Bloss (30 N. Y. 374) 
North British Bank v Colhns (28 Eng. 

L. & Eq. 7) 206. 

Northern Bank of Ky. v. Keizer (2 

Duv. 169) 
Northern Co. v. Potter (63 Cal. 157) 
North Penn. Coal Co.'s Appeal (45 

Pa. 181) 
North River Bank v. Aymar (3 Hill 

262) 

V. Stewart (4 Bradf. 254) 

Northrup v. Phillips (99 111. 449) 9, 
Northwestern R. R. v. McMichael 

(5 Ex. 114) 



185 

26 

231 

60 

164 

76 
,95, 
206 
147 

99 
163 
193, 
336 
407 
468 
124 

10, 
555 

58 
139, 
144 
320 
,488 
260 

506 
508 
124 
257, 
267 
476 
99, 
173 
401 

462 
251 
392 
516 
482 
213 

344 
498 
509 

60 
179 
138 

32 

216 

477 
144 

350 

180 
331 
198 

20 



563 
111, 
183 
110 

,366 
295, 
456 

412 

257, 
258 
406 
515 

222, 
525 
164 
54 
469 

454, 
507 
150 



Norton v. Phelps (54 Miss. 467) 
V. Seymour (3 C. B. 792) 110, 

r. Thatcher (8 Neb. 186) 77, 

Norwalk Nat. Bank t'. Sawyer (38 Oh. 

St. 339) 351 

Norway v. Rowe (19 Ves. 144) 292, 

298, 455, 

Norwich Nav. Co. v. Theobold (M. & 

M. 151) 
Notley, Ex parte (1 Mont. & A. 46) 

Nott V. Downing (6 La. G84) 165, 

Nourse v. Prime (7 Johns. Ch. 69) 
Nowell V. Nowell (L. R. 7 Eq. 538) 

623^ 
Noyes v. Brumaux (3 Yeates 30) 

V. Cushman (25 Vt. 390) 

V. Sawyer (3 Vt. 160) 

Nugent V. Locke (4 Cal. 318) 250, 

Nunnely v. Dolierty (1 Yerg. 26) 
Nutting, Ex parte (2 Mont. D. & D 

302) 496 
V. Colt (3 Halst. 539) 60 



o. 



Oakeley v. Pasheller (10 Bligh. 548, 

4 CI. & F 207) 95, 417, 485 

Oakley v. Aspinwall (2 Sandf. 7) 74 

O'Bannon v. Miller (4 Bush 25) 344 

O'Brien v. Currie (3 C. & P. 283) 21 

V. Eoglesong (31 Pac 1047) 333 

V. Smith (42 Kas 49, 21 Pac. 

784) 248 
O'Connor v. Stark (2 Cal. 155) 510 
Odiorne r Lyford (9 N. H. 511) 303 
V Maxcy (13 Mass. 182, 15 Mass. 

44) 164 

Ogden V Astor (4 Sandf. 311) 55, 60, 430, 

438, 443, 512, 515 

V. Kip (6 Johns. Ch. 160) 291 

I'. Saunders (12 Wheat. 213) 468 

Os:i\hy,Ex parteiSVes &B.133) 471,499 
Ogilvy, Ex parte (2 Rose 177) 472, 499 
Ogle, Ex parte (Mont. 350) 497, 499 

V. Barnes (8 T. H. 188) 126 

Ohio Salt Co. v. Guthrie (35 Oh. St. 

666) 566 

Olcott V. Wing (4 McLean 15) 35 

Oldaker v. Lavender (6 Sim 239) 216, 
277, 455, 511, 519 
Oliphant v. Mathews (16 Barb 608) 114 
Oliver V. Hamilton (2 Anst. 453) 293, 297, 

298, 457 

V. Burton (17 Q B. 989) 317 

V. Forrester (96 111. 315) 435 

V. Gray (4 Ark. 425) 48 

V. Palmer (11 G. & J 426) 469 

Olmstead r Hill (2 Ark. 346) 60 

O'Mealey v Wilson (1 Camp. 482) 26, 

309, 310 
O'Neill V. Brown (61 Tex. 34) 248 



TABLE OF CASES. 



lix 



Onondaga Bank v De Puy (17 Wend. 

47) 143 

Ontario Bank v. Hennessey (48 N. Y. 

64o) 114 

r Mumford (2 Barb. Ch. 596) 312 

Oppenlieimer v. Clenimons (18 F. R. 

880) 62, 69 

Oram v. Rothermel (08 Pa. 300) 363 

Ord V. Portal (3 Camp. 2!)3) 316 

Ordinary v. Wherry (1 Bail. 28) 19 

Oregon Steam Nav. Co. v. Winsor (20 

Wall. 64) 566 

Orplnm Board v. Van Keenen (I 

KiKipp 100) 514 

Orr V. Cliurcliill (1 H. Bl. 227) 223 

Orvis V. Kimball (3 N H. 314) 18 

Oiborn v. McBride ( 16 N. B. R. 22) 340, 

344 

V. U. S. Bank (9 Wheat. 788) 69 

Osborne r. Barge (29 F. R. 725) 134, 135 

V. Brennan (2 N & McC. 427) 54 

V. Harper (5 East 225) 253 

V. Stone (30 Minn. 25, 13 N. W. 

922) 83 
r. Thompson (35 Minn. 229, 28 

N. W. -M)) 83 

Osgood V. Glover (7 Daly 367) 146 

V. Spenser (2 H. & G. 133) 444 

Osmond y. Fitzroy (3 P. Wms. 130) 512 
Ostrom V. Jacobs (9 Met. 454) 69, 89 

Oteri r. Scalzo (145 U. S. 578) 305, 454, 

457 
Ottley V. Browne (1 Ball & B. 360) 9 

Over V. Heatherington (66 Ind. 365) 136 
Overall r. Taylor (11 So. 738) 118 

Overholt's Appeal (12 Pa. 222) 345,349 
Overton ?;. Tozer (7 Watts 333) 151, 155, 

156 
Owen, Ex parte (13 Q. B. D. 113) 293 

V. Body (5 A. & E. 28) 56, 65, 452 

V. Bowen (4 C. & P. 93) 482 

V. Van Uster (10 C. B. 319) 183 

Owens v. Collins (23 Ala. 837) 349, 353 

V. Mackall (33 Md. 382) 65 

Owings V. Low (5 G. & J. 134) 163 

Owston V. Ogle (13 East 538) 207, 267 
Oxley, Er parte ( 1 Ball & B. 257) 467 
Ozeas i". Johnson (1 Binn. 191, 4 Dall. 

434) 260, 262, 519 



Paden v. Bellenger (87 Ala. 575,6 So. 

351) 125 

Page V. Brant (18 111. 37) 272, 413 

V. Carpenter (10 N. II. 77) 338, 343 

V. Cox (10 Hare 163) 127 

V. Fry (2 B & P. 240) 319 

V. McCrea (1 Wend. 167) 384 

V. Morse (128 Mass. 99) 17 

V. Thomas (43 Oh. St. 38, 1 N. E. 

79) 352, 366 

r. Thompson (33 Ind. 137) 249 

c. Wolcott (15 Gray 536) 333 



450) 
Palmer v. Dodge (4 Oh. St. 21) 



Pahlman v. Graves (26 111. 405) 477 

Paige V. Paige (71 la. 318, 32 N. W. 

360) 4, 352, 362, 366 

Paine v. Thacher (25 Wend. 450) 200, 

258, 384 
Painter v. Painter (68 Cal. 395, 9 Pac. 

138 

168, 378, 

381 

75 

&B. 

151 
132, 135 
103 
168 
111,113 
508 



V. Elliott (1 Cliff. 63) 

V. Justice Assur. Co. (6 E 

1015) 

o. Myers (43 Barb. 509) 

V. Pinkbam (33 Me. 32) 

V. Scott (68 Ala. 380) 

V. Stephens (1 Den. 471) 

V. Tyler (15 Minn. 106) 

Paradise v. Gerson (32 La. Ann. 532) 427 
Parchen v. Anderson (5 Mont. 438, 5 

Pac. 588) 46, 104 

Park V. Ballentine (6 Blackf. 223) 469 

V. Wooten (35 Ala. 242) 402 

Parkburst v. Kinsman (1 Blatch. 488) 67, 

244, 391 

V. Muir (3 Halst. Ch. .307) 295 

Parker, Ex parte (Cooke B. L. 503) 497 

, In )e (19 N. B. R. 340) 95 

V. Barker (1 Br. & B. 9, 3 Moo. 

226) 492 

I'. (1 Clarke Ch. 1.36) 20 

V. Brewer (3 J. B. Moore 226) 69 

V. Broadbent (134 Pa. 322, 19 

Atl. 631) 
V. Canfield (37 Conn. 250) 



i: Cousins (2 Gratt. 372) 



439 

55, 57, 

61, 95 

96, 378. 

.381 

V. Fergus (43 111. 437) 57, 62 

V. Gossage (2 C. M. & R. 617) 219 

V. Gregg (23 N. H. 416) 312 

?'. Jonte' (15 La. Ann. 290) 515 

V. Macomber (18 Pick. 505) 247, 308, 

378, 379, 381 

v. Merrill (6 Me. 41) 162 

(;. Merritt (105 111. 293) 332 

V. Moore (2 La. Ann. 1017) 160 

V. Morrell (2 C. & K. 599) 162, 163 

r. (2 Ph. 453) 163 

V. Muggridge (2 Story 346) 471, 479, 

500 

V. Piiillips (2 Cush. 175) 380, 383 

V. Pistor (3 B. & P. 288) 250, 290, 

.324, 475 

V. Ramsbottom (3 B. & C. 257) 62, 

473, 489 

V. Wright (66 Me. 392) 345 

Parkin v. Carruthers (3 Esp. 248) 88, 403 

406, 407 

V. Fry (2 C. & P. 311) 553 

Parmalee v. Wiggenhorn (6 Neb. 322) 427, 

429 
Parmelee v. Lawrence (44 III. 405) 144 
Parnell v. Robinson (53 Ga. 26) 197, 524 
Parr, Ex parte (18 Ves. 65, 1 Rose 76) 480, 

485 



Ix 



TABLE OF CASES. 



Parrish v. Parrish (88 Va. 529, 14 

S. E. 325) 363 

Parsons v. Crosby (5 Esp. 199) 30, 77, 109, 

492 

V. Haywood (31 Beav. 199) 

• '•. Tillman (95 Ind. 452) 

Partridge v. Kingman (130 Mass. 476) 



213 
497 
60, 
104 
204 



V. Wells (30 N. J. Eq. 176) 

Paton V. Baker (62 la. 704, 15 N. W. 

586) 368 

Patten v. Garney (17 Mass. 182) 116, 320 

I'. Whitehead (13 Rich. L. 150) 113 

Patterson v. Blake (12 Ind. 436) 349 

(;. Brewster (4 Edw. Ch. 352) 35, 91, 

330, 331 

r. Chalmers (7 B. Mon. 595) li6 

V. Grace (10 Ala. 444) 349 

r. Maughan (39 U. C. Q. B.371) 143 

V. Silliman (28 Pa 304) 219 

V. Ware (10 Ala. 444) 214 

Patterson's Appeal (13 W. N. C. 154) 9 
Pattison v. Blanchard (5 N. Y. 186) 45, 66 

V. (6 Barb. 537) 262 

Patton V. Leftwich (86 Va. 421, 10 

S. E. 686) 136 

Paul V. CuUura (132 U. S. 539) 222 

Pawsey v. Armstrong (18 Ch. D. 698) 42, 

237 
Payne v. Freer (91 N. Y. 43) 

V. Hornby (25 Beav. 280) 

V. Ives (3 I). & R. 664) 

V. Matthews (6 Paige 19) 



527 
378 
185 
330, 444, 
500 



V. O'Shea (84 Mo. 129) 347 

V. State (39 Barb. 634) 160 

V. Thompson (44 Oh. St. 192, 5 

N. E. 654) 24 

Peacock v. Cummings (46 Pa. 4.34) 188 

V. Peacock (16 Ves. 49) 199, 291, 292. 

295, 302, 371, 378, 388, 392, 396, 
398 

V. (2 Camp. 45) 109, 232, 233, 

234 

Peake, Ex parte (1 Madd. 358) 328, 338, 

468, 474, 478, 489, 490 

Pearce v. Chamberlin (2 Ves. 33) 10, 129, 

432, 459 

V. Cooke (13 R. I. 184) 445 

V. Covert (39 Wis. 252) 354 

V. Hennessy (10 R. I. 223) 203 

0. Kearney (5 Hill 82) 92 

V. Piper (17 Ves. 1.) 553 

V. Wilkins (2 N. Y. 469) 80 

Pearpoint v. Graham (4 Wash. C. C. 

232) 131, 134, 371, 396 

Pearsall v. McCartney (28 Ala. 110) 490 
Pearson v. Keedy (6 B. Mon. 128) 327, 

V. Lord (6 Mass. 81 ) 318 

V. Parker (3 N. H. 366) 312, 316 

V. Pearson (27 Ch. D. 145) 237 

V. Skelton (1 M. & W. 504) 277 

r. Williams (26 Wend. 630) 224 

Pease v. Cole (53 Conn. 53) 83, 84 



Pease v. Hewitt (31 Beav. 22) 530 

V. Hirst (10 B. & C. 122) 158, 313, 

316 
Pechell V. Watson (8 M. & W. 691) 320 
Peck V. Fisher (7 Cush. 386) 350, 352, 361 

0. Schultze (1 Holmes 28) 344 

V. Thomas (29 Eng L. & Eq. 276) 12 

Pecker r. Hall (14 All. 532) 387 

Peckham Iron Co. v. Harper (41 Oh. 

St. 100) 119, 125 

Pecks V. Ellis (2 Johns. Ch. 131) 269 

Pecot V. Armelin (21 La. Ann. 667) 6 

Peele, Ex parte (Buck 457) 146 

, (6 Ves. 604) 175 

Peirce v. Jackson (6 Mass. 242) 475 

V. Tobey (5 Met. 168) 160 

Pelletier v. Couture (148 Mass. 269, 19 

N. E. 400) 17, 21 

Pemberton v. Oakes (4 Russ. 154) 425, 

448, 622 
Pendleton v. Cline (85 Cal. 142, 24 

Pac. 659) 228 

Penn v. Harrison (3 T. R. 760) 186 

V. Stone (10 Ala. 209) 308, 341 

V. Whitehead (17 Gratt. 503) 22 

Pennell v. Deffell (4 De G M. & G. 372) 425 
Penniman v. Jones (58 N. H. 447) 247 

;;. Munson (26 Vt. 164) 67, 244 

Pennoyer v. David (8 Mich. 407) 162 

Penn. Ins. Co. v. Murphy (5 Minn. 56) 552 
Penn. Nat. Bank v. Furness (114 U. S. 

376) 427 

Penny v. Black (9 Bosw. 310) 235 

V. Martin (4 Johns. Ch. 566) 76, 93 

Pennybacker v. Leary (65 la. 220, 21 

N. W. 575) 7, 350 

Pennypacker v. Umberger (22 Pa. 492) 420 
People V. Chicago Gas Trust (130 111. 

268, 22 N. E. 798) 5.59, 567 
V. North River S. R. Co. (121 N. 

Y. 582, 24 N. E. 834) 559, 661, 564 

V. Norton (1 Paige 17) 297 

V. Wemple (117 N. Y. 136, 22 N. 

E. 1046) 131, 551 

Peoples' Bank v. Keech (26 Md. 521) 187 

V. Shryock (48 Md. 427) 344, 345 

Pepper v. Peck (20 Atl. 16) 98, 331 
t;. Thomas (85 Ky. 539, 4 S. W. 

297) 352 

PercifuU v. Piatt (36 Ark. 456) 351, 363 
Perens v. Johnson (3 Sm. & G. 419) 375, 

383, 392 
Perham v. Raynal (2 Bing. 309) 156, 157 
Perkins v. Fisher (80 Ky. 11) 470 

V. Hart (11 Wheat. 237) 515 

Perminter v. Kelly (18 Ala. 716) 303 

Perrin !'. Keene (19 Me. 355) 381 

Perrine r. Hankinson (6 Halst. 181) 63 
Perring v. Hone (4 Bing. 28) 111, 183, 248, 

653 

V. (2 C. & P. 401 ) 474, 549 

Perrott i'. Bryant (2 Y. & C. 61) 60 

Perry, Ex parte (5 Ves. 575) 490 

V. Butt (14 Ga. 699) 46, 179 

V. Jackson (4 T. R. 519) 162 



TABLE OF CASES. 



Ixi 



Perry v. Randolph (6 Sm. & M 335) 77, 

107 

V. Taylor (1 Utah 63) 2U3 

Persou V. Carter (3 Murph. 321) 160, 151, 

152 
]\'rsonette c Pryme (34 N J. Eq. 26) 7 
Perth Amhoy Terra-Colta Co. v 

Wood (124 Pa. 307, 17 Atl. 4 ) 155 

Peter /;. Heverly (10 Pet. 5G7) 483 

Peters p. Anderson (5 Taunt. 596) 420 

V. Main (138 U. 8. 670) 475. 476, 480 

V. Davis (7 Mass. 256) 434, 443 

V. Sandfurd (1 Den. 224) 76, 92 

Peterson v. Humphrey (4 Abb. Pr. 

394) 242, 243 

/'. lloach (32 Oh. St. 374) 89 

Petrie p. IJury (3 B & C. 354) 316 

y. Hannay (3 T. R. 418) 9 

r. Lamont (1 C. & M. 93) 118 

Petrikin ik Collier (1 Barr 247) 37, 373 
Pettee o. Appleton (114 Mass. 114) 55, 58 
Pettis V. Atkins (60 111. 454) 65 

Pettit LK Shepherd (5 Paige 493) 89 

Pettyjohn v. Woodroof (86 Va. 478, 10 

S. 10. 715) 476 

Pettyt o. Janeson (6 Madd. 146) 215, 282, 

518 
Peyser v. Myers (135 N. Y. 599, 32 N. 

E. 699) 429 

Pfeffer v. Steiner (27 Mich. 537) 444 

Pfeuffer v. Maltby (54 Tex. 454) 8 

Phelps V Brewer (9 Cush. 390) 145 

V. McNeely (66 Mo. 654) 332 

Philippi u. Philippi (61 Ala. 41) 306 

Philips V. Belden (2 Kdw. Ch. 1) 515 

(I Samuel (76 Mo. 657) 46, 58 

u. Turner (2 Dev. & B. Eq 123) 200, 

201, 384, 520 
Phillips V. Ackerson (2 Bro. C. C 272) 309, 

436 

V. Blatchford (137 Mass. 510) 66, 248, 

433, 550 

r Clagett (11 M. & W. 84) 152, 307 

V Cook (24 Wend. 398) 290, 340, 343 

r. Pennywit (1 Ark. 69) 318 

V. Phillips (1 M. & K. 649) 360, 354 

V. (Biss. Part. 50) 364, 365 

V. Purington (15 Me. 425) 69 

i\ Trezevant (67 N. C. 370) 293 

t>. Trowbridge Furniture Co. (86 

Ga. 699, 13 S. E. 19) 69, 134 

Philson i\ Bampfield (1 Brev. 202) 76 

Phinsen v. Negley (25 Pa. 297) 171, 172 
Phoeni.x c. Ingraham (5 Johns. 412) 490 
Piatt V. Oliver (3 McLean 27) 214, 367 
Pickard u. Sears (6 A. & E. 469) 492 

Pickels V. McPherson (59 Miss 216) 84, 89 
Pickens i\ McCoy (24 W. Va. 344) 203 
Pickering r. Holt (6 Me. 160) 150 

V. Pickering (11 N. H 141) 320 

V. Rugbv (18 Ves. 484) 283 

Pigott V. Bagley (McC & Y. 569) 449, 

450, 610 
Pierce v. Barnham (4 Met. 303) 23 
r. Bryant (5 All. 91) 639, 545 



Pierce v. Cameron (7 Rich. 114) 94 

V. Covert (39 Wis 252) 361 

V. Daniels (24 Vt. 624) 193, 194 

V. Fuller (8 Mass 223) 401 

V. Jackson (21 Cal. 636) 172 

V, (6 Mass 242) 118, 137, 338, 

339, 346, 446 

V. Kearney (5 Hill 94) 76 

V. McClellan (93 111. 245) 306 

V. Nashua Ins Co. (60 N. H. 297) 235 

I'. Pass (1 Port. 232) 97, 99, 100, 179 

V. Pierce (89 Mich. 233, 50 N. W. 

851) 194 

V. Stockwell (11 Cush 236) 146 

V. Tiernan (10 G. & J. 253) 137, 600 

V. Tobey (5 Met. 168) 18 

V. Trigg (10 Leigh 246) 349, 361, 362 

363, 443 

V. Whitley (39 Ala. 172) 10 

Piersole v. Elliott (6 Pet. 95) 289 

Pierson v. Hooker (3 Johns 68) 131, 144, 

152 307 

V. Steinmyer (4 Rich. 309) 46, 62 

Pike V. Bacon (21 Me. 280) 151, 153 

V. Warren (16 Me. 390) 159 

Pilcher, Succession of (39 La. Ann 362, 

1 So. 929) 2, 335 
Pillans V. Harkness (CoUes P. C. 442) 11, 

276 
Pilling V. Pilling (3 De G. J. & S. 162) 202 
Pim V. Harris (Ir. Rep. 10 Eq. 442) 202 
Pinckney v. Keyler (4 E. D. Smith 

469) 

V. Wallace (1 Abb. Pr. 82) 

Pine, Ex parte (Cooke B. L. 503) 
Pinkerton, Ex parte (6 Ves. 814) 
Pinkett v. Wright (2 Hare 120) 
Pinkney v. Hall (1 Salk. 126, 1 

Raym. 175) 
Pio Pico V. Cuyas (47 Cal 174) 
Pipe V. Bateman (1 la. 369) 
Piper V. Smith (1 Head 93) 
Pirtle V. Penn (3 Dana 240) 
Pitcher v. Barrows (17 Pick. 361) 

406, 411, 412 
Pitkin V. Pitkin (7 Conn 307) 461 

Pitt V. Cholmondeley (2 Ves. Sen. 566) 

515 616 

V. Petway (12 Ired 69) ' 304 

V. Smith (3 Camp. 33) 27 

Pitts V. Mower (18 Me. 361) 317 

V. Spotts (86 Va 71, 9 S. E. 601) 

360 

V. Waugh (4 Mass. 424) 76, 348, 

349, 356 
Pittsburg Melting Co v. Reese (118 

Pa. 355, 12 Atl. 362) 663 

Place V. Sweetzer (16 Ohio 142) 291, 325, 

344 
Planter's & Miner's Bank v. Padgett 

(69 Ga. 159) 
Piatt V. Halen (23 Wend. 456) 
Plowden, Ex parte (3 Mont. & A. 402, 

2 Dcac. 456) 
Plummer, In re (1 Phil. 56) 



435 
497 
329 

554, 656 

Ld. 
2,167 
248 
653 
362 
281 

68, 308, 



60 
317 



472 
481 



Ixii 



TABLE OF CASES. 



Poillon V Lawrence (77 N. Y 207) 470 

i: becor (61 i\. Y. 456) 1U4 

Pomdexter v. Waddy (0 Alunf. 418) 172, 

427 
Polk V Buchanan (5 Sneed 721) 46 

V. Oliver (50 Miss 566) 405 

Pollock V. Williiuns (42 Miss. 88) 81 

Pomeroy u Ben tun (57 Mo. 531) 512 

V. (77 Mo 64) 527 

Porafret v. Wuidsor (2 Ves Sen. 482) 

515 

200 

60 



Pond 



. Clark (24 Conn. 370) 

r. Ounimins (50 Conn 372) 

c. Kimball (101 Mass 105) 335, 491 

Pontet V. Basingstoke Canal Co. (2 

Scott 543) 655 

Ponton V. Dunn (1 Russ & M. 402) 448 
Pool V. Delaney (11 Mo. 570) 252, 254, 

255 

V. Pratt (1 D. Chip. 252) 16 

Poole V. Hintrager (00 la 180, 14 

N. W. 223) 429 
V. Seney (66 la. 502, 24 N. W. 

27) 332 

Pooley V. Driver (5 Ch. D. 458) 1, 3, 43. 

61 

V. Whitmore (10 Heisk. 629) 84 

Poor V. Carleton (3 Suinn 81) 292 

Pope V. Cole (55 N Y. 124) 445 

('. Randolph (13 Ala. 214) 263, 264 

V. Rislev (23 Mo. 185) 163, 405, 413 

r. Salsman (35 Mo. 362) 508 

Popper (•. Scheider (7 Abb. Pr. n s 

56) 456 

Port Gibson, Bank of, v. Baugh (9 Sm. 

& M. 290) 381 

Porter v. Cumings (7 Wend. 172) 169, 183 

V. Currv (50 111 310) 139 

(,• Gorman (65 Ga. 11) 237 

V. McClure (15 Wend. 187) 53, 54, 



V. Taylor (6 Moo. & S. 156) 



66 
144, 
307, 385 
121 



384 
165 



307 
150 



i: Vance (14 Lea 629) 

V. Wheeler (37 Vt. 281) 

Porthouse v. Parker (1 Camp 82) 
Portland Bank i-. Hyde (11 Me. 196) 
270, 271, 
Po.eey V. Bullitt (1 Blackf. 99) 
Post V Kimberly (9 Johns. 470) 37, 54, 
81, 102, 229 
Postmaster-General v. Furber (4 Mas. 

332) 425 

Potomac, The (2 Black 481) 198 

Pott, Ex parte (2 Sim. 257) 495 

V. Eyton (3 C. B. 32) 41, 104 

Potter V. Commissioner (10 Ex. 147) 237 



Gray (1 R. I. 1) 

V. Greene (9 Gray 809) 

V. McCoy (26 Pa. 458) 

V. Moses (1 R. I 430) 

Potts i\ Bell (8 T. R. 548) 

V. Waugh (4 Mass 424) 

Powell V Heisler (16 Ore. 
Pac. 109) 



412, 



371, 373 

103 

96, 151 

55,60 

26 

35 

19 

512 



Powell i; Maguire (43 Cal 11) 259 

V. Messer (18 Tex 401) 171, 172, 

173 
V. Moore (79 Ga. 524, 4 S. E 

383) 

V. North (3 Ind. 392) 

V. Waters (8 Cow. 670) 

Powers I'. Guardian Jns. Co. 

Mass, 108) 
V. Large (69 Wis. 621, 35 N. 

53) 



44, 62 
452 

164,413 

(136 

235 

W. 
340 

V. Robinson (90 Ala. 225, 8 So. 

10) 351, 360 

Powles V. Page (3 C. B. 16) 119 

Pratt V. Hutchinson (15 East 511) 554, 

555, 556 

V. Langdon (12 All 544) 45, 46, 74 

V. (97 Mass. 97) 44, 45, 46 

Prentice v. Elliott (72 Ga. 154) 527 

Prentiss v. Savage (13 Mass. 20) 468 

V. Sinclair (5 Vt. 149) 40.3, 406 

Prescott, Ex parte (4Deac. & Ch. 23) 485 
Preston v. Stratton (1 Anst. 50) 255, 260, 

264, 265 
Price V. Alexander (2 Greene 427) 151, 

152, 

V. Drew (18 Fla. 670) 

V. Green (16 M. & W. 346) 

V. Groom (2 Ex. 542) 

V. Hicks (12 Fla. 365) 

Priest V. Chouteau (85 Mo. 398) 



153 
248 
224 

67 

354 

46, 47, 

51, 368 

82, 84 



Prince v. Crawford (50 Miss. 344 
Princeton & K. Turnpike Co. v. Gulick 
(16 N. J. 161) 403,406 



Pringle v. Leverich (97 N. Y. 181 
Printup V. Turner (65 Ga. 71) 351, 
Prichard v. Draper (1 Russ. & M. 191 ) 
69, 144, 168, 162, 
Pritt V. Clay (6 Beav. 503) 
Proctor V. Moore (1 Mass. 198) 

1-. Sargent (2 M. & G. 20) 

Prosser r. Hartley (35 Minn. 340, 29 

N W. 156) 
Protheroe v. Forman (2 Swanst. 227) 



163 

;67 



515 
468 
401 

335 

290 



Providence v. Bullock (14 R I. 353) 

352 
Prnyn i'. Milwaukee (18 Wis. 367) 203 
Publishing Co. v. Gage (11 Can. 306) 244 
Pugh V Currie (5 Ala. 446) 349, 350, 353, 
354, 362, 363, 366, 367 



Pullen V. Ready (2 Atk. 592) 

r. Whitfield (55 Ga. 174) 

Purcell V. Cole (1 L. & T. 449) 
Purdom v. Bovd (17 S. W. 606) 
Purdy V. Powers (6 Barr 492) 



179, 



511 
445 
514 
24 
274, 
276 



Purple V. Farrington (119 Ind 164, 21 
N. E. 543) 332 

Parsley v. Ramsey (31 Ga. 403) 113, 403 

Purviance v. McClintee (6 S. & R. 
259) 46 

V Sutherland (2 Oh. St. 478) 151, 

153, 154 



TABLE OF CASES. 



Ixiii 



Purvines v. Champion (67 111 459) 255 
Purvis V. Butler (87 Mich. 248, 49 

N. W. 5(J4) 65 

Putnaui V. Wise (1 Hill 234) 53, 54, U3, 

128, 555 



Q. 

Quayle i-. Guild (91 111. 378) 306 

Queen v. Robsoii (16 Q. B. D. 137) 52 

V. Whitmarsh (15 Q. B. 600) 52 

Quine v. Quine (9 Sin. & M. 155) 34, 58 
Qiiiner c. Marhleliead Social Ins. Co. 

(10 Mass. 482) 131 

Quinlan v. Kciser (66 Mo. 603) 512 

Quinlivan o. KnsiHsh (42 Mo. 362) 401 

;;. (44 Mo. 46) 293 

Quinn v. Quinn (81 Cal. 14, 22 Pac. 

264) 35 



R. 



Raba v. Ryland (Gow 132) 115, 133 

Rabitte v. (Jrr (88 Ala. 185, 3 So. 420) 49 
Rackstraw u. Iniber (Holt N. P. 368) 

262, 519 
Radcliffe v. Wightman (1 McC Ch. 

408) 512 

Radenhurst! v. Bates (3 Ring. 463) 258, 312 
Railroad v. Bixby (55 Vt. 235) 345 

r. Black (8 E.x. 181) 20 

('. Cazenove (11 Q. B. 935) 20 

r. Culver (75 Ala. 587) 65 

('. Elliot (57 N. H. 397) 203 

V. Fen rule V (4 Ex. 26) 20 

V. Hudson" (16 Beav. 485) 384 

V. Johnson (7 S. W. 838) 60 

V. McCaughev (62 Tex. 271) 334 

V. McMichael (5 Ex. 114) 20 

v. Niles (3 Hill 162) 66 

i: Roach (35 Kas. 740, 12 Pac. 93) 65 

V. Spratt (2 Duv. 4) 65 

V. Trippe (42 Ark. 465) 65 

Railsback v Lovejoy (116 111. 442, 6 

N. E. 504) 204, 350, 365 

Rainey v. Nunse (54 111. 29) 477 

Rains v. McNairv (4 Humph. 356) 303 
Raleigh, Er parte (3 .Mont. & A. 670) 73 
Ralston v. Moore (105 Ind 243) 445 

Ramey v. McBride (4 Strobh. 12) 179 

Rammelsberg v. Mitchell (29 Oh. St. 

22) 237, 238 

Ramsbottom v. Duck (1 Mont. Part. 

135) 471 

V. Parker (6 Madd. 5) 210 

Randall v. Hunter (66 Cal. 512) 98 

V. Johnson (13 R. I. 338) 343, 344 

V. Meredith (11 S. W. 170) 35 

f. (76 Tex. 669, 13 S. W. 

576) 81, 84 

V. Randall (7 Sim. 271) 357 

Randel v. Chesapeake Canal Co. (1 

Harr. 233) 219 



212 
222 

123 

6 

492 
492 
60 
499 
237 



347 
222 



^89, 459 



Randleson, Ex parte (1 Mont & M'A. 

36) 9 

, (2 Deac & Ch. 534) 426 

Randolph v Randolph (2 Call 537) 512 
Ransom, In re (17 F. R. 331) 7, 362, 364 

>:. Van Devcnter (41 Barb. 307) 471 

Rapid, Tiie (8 Cranch 160) 26, 3l0 

Rapier v. Gulf City Paper Co. (64 Ala. 

330) 399 

Rapp V Latham (2 B. & Aid. 795) 120, 163 
Ratcliffe v. Mason (17 8. W. 438) 352 

Rathbun V. McConnell (27 Neb. 239, 

42 N. W. 1042) 
Ratzer v. Ratzer (28 N. J. Eq. 136) 
Rau V. Small (144 Pa. 304, 22 Atl 

740) 
Raub V. Smith (61 Mich. 543, 28 N. W 

676) 
Raw V. Pole (2 Vern. 239) 

V. Potts (Prec. Ch. 35) 

Rawlinson v Clarke (15 M. & W.292) 
Rawson, Exparte (Jae. 277) 

V. Pratt (91 Ind. 9) 

Rawstorne v. Gandell (16 M. & W. 

304) 307, 312 
Ray ;;. Bogart (2 Johns. Cas 432) 512 
Raymond v. Carne (45 N. H. 201) 283 
V. Palmer (41 La. Ann 425, 6 So 

692) 

V. Putnam (44 N. H. 160) 

V. Vaughn (128 111. 256, 21 N. E 

566) 

Raymond's Case (2 Rose 255) 127, 138 
Rayner v. Pearsall (3 Johns. Ch. 578) 512 
Reab r. Pool (30 S. C. 140, 8 S. E. 703) 74 
Read v. Bowers (4 Bro. 441) 291 

V. Smith (60 Tex. 379) 8, 9 

V. White (5 Esp. 122) 482, 485 

Reade v. Bentley (3 Kay & J. 271, 4 

Kay & J. 65) 371, 373, 374 

Reber v. Col. Machine Mfg. Co. (12 

Oh. St. 175) 103 

Reddington v. Lanahan (59 Md. 429) 60 
Redlon v. Cimrcliill (73 Me. 146) 99, 187 
Redman v. Green (3 Ired. Eq. 54) 
Reece v. Hoyt (4 Ind. 169) 
Reed v. Boardman (20 Pick 441) 

V. Hussey (Bl. & H. 525) 

v. Murphv (2 Greene 574) 

V. Norris'(2 My. & C. 361) 

(;. Upton ( 10 Pick 525) 

V. Vidal (5 Rich. Eq. 289) 

V. White (5 Esp. 122) 95, 387, 416 

Reed Lumber Co. v. Lewis (94 Ala. 

626, 10 So. 333) 146 

Reese v. Bradford (13 Ala. 837) 327, 328, 

338 
Reeve, Ex parte (9 Ves. 588) 489, 497, 499 
Reeves r. Ayres (38 111. 418) 474 

Rehfuss V. Moore (134 Pa. 462, 19 Atl. 

756) 537 

Reid, Ex parte (2 Rose 84) 472, 498, 499 

V. HoUinshead (4 B. & C. 867, 7 

D. & R. 444) 55, 115, 133 
V. McQuesten (61 N. H. 421) 252 



515 
391 
421 
60 
45, 62 
503 
483 
279 



Ixiv 



TABLE OF CASES. 



Reilly v. Smith (16 La Ann. 31) 405 

Reimsdyk v. Kane (1 Gall. 630) 162. 164, 

169 
Regden v. Pierce (6 Madd. 353) 502, 503, 

504, 531 
Regester v. Dodge {6 F. R. 6, 19 

Blatcli. 79) 415 
Regina v. Mallinson (16 Q. B. 367) 303 
V. Registrar of J. S. Cos. (10 Q. 

B. 839) 551 

I'. Whitraarsh (19 L.J. Q. B. 185) 

551 
Remick v Emiz (41 111. 343) 434 

Remington v. Allen (109 Mass. 47) 248 

r. Cummings (2 Wis. 138) 155 

Rencher v. Anderson (95 N. C. 208) 204, 

306 
Renfrow v. Pearce (68 111. 125) 204 

Renton i-. Chaplain (1 Stock. 62) 292, 300 

391 392 
Reppert v. Colvin (48 Pa. 248) 
Reubin v. Cohen (48 Cal. 545) 
Rew V. Pettet (1 A. & E. 196) 
Rex V. Almon (5 Burr. 2686) 

V. Cole ( 1 Ld. Raym. 443) 

V. Dodd (9 East 516) 

V. Hard wick (11 East 578) 

V. Marsh (2 B. & C. 723) 

V. Pearce (Peake 75) 

V. Sanderson (1 Wightw. 50) 344, 475 

r. Topham (4 T. R. 126) 124 

V. Webb (14 East 406) 554, 556 

Reybold v. Dodd (1 Harr. 401) 200, 384 
Reyburn v. Mitchell (106 Mo. 365, 16 

S. W. 592) 
Reynard v. Chase (2 Wils. 40) 
Reynell v. Lewis (15 M. & W. 517) 
Reynolds v. Austin (4 Del. Ch. 24) 

V. Cleveland (4 Cow. 282) 37, 74, 81, 

91 

V. Hicks (19 Ind. 113) 127, 128 

V. Johnson (54 Ark. 449, 16 S. W. 

124) 332 

V. Mardis (17 Ala. 32) 201, 527 

V. Pool (84 N. C. 37) 53 

V. Toppan (15 Mass. .370) 45, 63 

V. Ward (5 Wend. 501) 

Rhea v. Rhenner (1 Pet. 105) 
Rliodes V. McKean (55 la. 547, 8 N 

W. 359) 
Rianhard r. Hovey (13 Ohio 300) 
Riarl v. Wilhelm (3 Gill 3-56) 
Rice, Appellant (7 All. 112) 
V. Austin (17 Mass. 197) 



160 
170 
157 
124 
21 
549, 553 
164 
124 
124 



332 
15 

105 
293 



41 
-23 



98 

50 

248 

445 

45, 61, 63, 

64, 325, 339 

V. Barnard (20 Vt. 479) 361 

V. Barrett (116 Mass. 312) 103 

V. Pennypacker (5 Houst. 279) 306, 

352 372 

V. Rockefeller (134 N. Y. 174, 3l' 

N. E. 907) 561, 562 

V. Shuman (43 Pa. 37) 5 

V. Shute (5 Burr. 2611) 469 

Rich V. Davis (4 Cal. 22) 180 
V. Flanders (39 N. H. 304) 162 



Rich V. Pilkinton (Carth. 171) 
Richards v. Baurman (65 N. C 162) 



125 

293, 
466 

V. Butler (65 Ga. 593) 405 

V. Davies (2 R. & M. 347) 280, 281, 

293, 456, 457, 510 

V. Dutch (8 Mass. 506) 468 

V. Grinnell (63 la 44, 18 N. W. 

7,306 
Heatlier (1 B. & Aid. 29) 

V. Hunt (65 Ga. 342) 

V. Manson (101 Mass. 482) 

V. Todd (127 Mass. 167) 

Richardson, Ex parte (Buck 209) 



668) 



444 
404 

332 

305, 529 

503 



(3 Madd. 138) 451, 452 

; In re (5 L. J. Ch. 129) 499 

, (11 N. B. R. 114) 491 

V. Adler (46 Ark. 43) 335 

v. Bank of England (4 My. & C. 

171) 214,249,517 

V. Boright (9 Vt. 368) 18, 20 

V. Buhl (77 Mich. 632, 43 N. W. 

1102) 567 

V. Davis (11 So. 790) 403 

V. Farmer (36 Mo. 35) 73 

V. French (4 Met 577) 123 

V. Gregory (126 111. 166, 18 N. E. 

777) 374 

V. Hastings ( 7 Beav. 301) 457, 510 

V. Hogg (38 Pa. 153) 538, 540 

V. Hughitt (76 N. Y. 55) 61 

u. Larpent (2 Y. & C. 507) 384 

V. Moies (31 Mo. 430) 381 

V. Pitts (71 Mo. 128) 50 

V. Snider (72 Ind. 425) 405 

V. Tobey (3 All. 81) 466 

V. Wyatt (2 Desaus. 471) 

V. Wyman (4 Gray 553) 

Richmond v. Heapy (1 Stark 202) 



485 

145, 

179 

52 



I'. Judy (6 Mo. App. 465) 

Richmond Ry. & Electric Co. v. Dick 

(52 F. R. 379) 119 

Richter v. Poppenhausen (42 N. Y. 

373) 65 

Ricker i^. Amer. L. & T. Co. (140 
Mass. 346, 5 N. E. 248) 131, 549, 559, 

560 
Ricketts v. Bennett (4 C. B. 686) 82 

Riddle v. Whitehill (135 U. S. 621) 306, 
352, 359, 393 
Ridenour v. Mayo (40 Oh. St 9) 51 

Ridgeley v. Crandall (4 Md. 4.35) 16 

Ridgley v. Carey (4 H. & McH. 167) 137, 

500 
Ridgway v. Clare (19 Beav. Ill) 325, 330, 

445 

V. Grant (17 111 117) 

V. Philip (1 C. M. & R. 415) 



1,. (5Tyrw. 131) 

Ridgway's Appeal (15 Pa. 177) 
Riding w. Smith (1 Ex D. 91) 
Ridlev V. Plymouth &c. G. & B. 
(2 Ex. 711) 



257, 258 
69, 105, 

164 

107 
354, 369 

236 
Co. 

551 



TABLE OF CASES. 



Ixv 



Ridley V. Tavlor (13 East 175) 96, 99, 108, 
172, 173, 175, 170 
Kiedeburg v. Sclimitt (71 Wis. 044, 38 

N. W. 330) 128 

Ricser, In re (19 Hun 202) 497 

Rigden v. Fierce (0 Madd. 353) 443, 407, 

609 
Righter V. Farrel (134 Pa. 482, 19 Atl. 

087) 65 

Riley V. Carter (25 Atl. 667) 186, 364, 
' 476 

Rilling V. Thompson (12 Bush 310) 203 
Rimel c Hayes (83 Mo. 200) 69, 104 

Rui'^o V. Wing (49 Ar.c. 457, 5 S. W. 

787) 118,231,427,429 

Riper v. Poppenhausen (43 N. Y. 08) 540 
Ripley v. Colby (23 N. H. 438) 37, 59, 110 

V. Water worth (7 Ves. 425) 357 

Rishton v. Grissell (L R. 5 Eq. 326) 524 
Rittenhouse v. Leigli (57 Miss. 697) 24 
Rizer v. James (20 Kas 221) 105 

Roauh /'. IJrannou (57 Miss. 490) 136, 437 

'). Perry (10 III. 37) 34, 200, 234 

Roache c Pendergrast (3 H. & J. 33) 253 
Robb V. Miidge (14 Gray 534) 402, 484 
Robbins (.'. Butler (24 111. 387) 550 

0. Cutler (26 N H. 173) 17 

V Fuller (24 N. Y. 570) 370 

V. Laswell (27 111. 3(55) 59 

y. Willard (6 Pick. 464) 164 

Robert c. Garnie (3 Cai. 14) 420 

Roberts v. Anderson (2 Johns. Ch. 

202) 
V. Eldred (73 Cal. 394, 15 Pac. 

16) 

V. Everhardt (1 Kay 148) 34, 293, 

294, 290, 298 

r Filler (13 Pa. 265) 251, 208 

V. Hardy (3 M. & S. 533) 20, 310 

V. Johnson (58 N. Y. 613) 

V. Kuffln (2 Atk. 112) 

c. Law (4 Sandf. 642) 

V. McCarty (9 Ind. 10) 

V. Oldham (03 N C. 297) 

r. Ripley (14 Conn. 513) 

V. Spencer (123 Mass 397) 

V. Strang (38 Ala. 560) 

V. Totten (13 Ark. 009) 124, 194, 215 

Robertson v. Corsett (39 Mich. 777) 3 

V. Lockie (10 Jur. 533) 460 

V. Mills (2 H. & G. 90) 172, 180 

V. Quiddington (28 Beav. 529) 237, 

243 

V. Smith (18 Johns. 478) 22, 70 

Robey v. Howard (2 Stark. 557) 37, 532 
Robins v. Eaton (10 N. H. 561) 18, 19 
Robinson, Ex parte (4 Deac. & Ch. 

9) 499 

, In re (1 Mont. & A. 18) 471 

V. Allen (85 Va. 721, 8 S. E. 835) 46, 

58, 333 

r. Anderson (20 Beav. 98, 7 De G. 

M. & G. 239) 221 

V. Bullock (58 Ala. 618) 53 

V. Crowder (4 McC. 519) 135, 153 



292 
521 



124 

515 
517 
354, 359 
345 
247 
407 
144 



Robinson v. Goings (63 Miss. 500) 



V. Gregory (30 N. Y. 350) 
V. Hotinan (4 Bing. 502) 
V. Hurlbut (34 Vt. 115) 
w. McDonnell (5 M. & S. 228) 
V. Mcintosh (3 E. D. Smith 221) 135, 
209, 252, 540, 545 



119, 
125 
135 
140 
95 
493 



V. Mansfield (13 Pick. 139) 

V. Marciiant (7 Q. B. 918) 

V. Reynolds (1 Aik. 174) 

V. Rudkuis (38 Eng. L. & Eq. 

372) 
V. Simmons (146 Mass. 167, 15 

N. E. 558) 

V. Taylor (4 Barr 242) 

V. Thompson (1 Vern. 465) 

V. Wilkinson (3 Price 538) 



320 

321 

23 

90 



V. Williams (8 Met. 454) 

Robson V. Curtis (1 Stark. 78) 



439 

381 

188 

75, 95, 

272, 387 

264 

248, 255, 

205 

V. Drumraond (2 B. & Ad. 303) 272, 

315,317,318 
Roby V. Colehour (135 111. 300, 25 N. 

E. 777) 204 

Rochester, Bank of, v. Bowen (7 Wend. 
158) 185 

V. Monteath (1 Den. 402) 110, 113, 

114, 169,206 
Rockafellow v. Miller (107 N. Y. 507, 

14 N. E. 433) 128 

Rockwell V. Wilder (4 Met. 556) 252, 253, 

255, 201, 265 

Rocky Mountain Nat. Bank v. Mc- 

Caskill (16 Col. 408, 26 Pac. 821) 169, 

171, 404, 405 

Rodgers v. Maw (4 D. & L. 66) 385 

V. Meranda (7 Oh. St. 179) 331, 476 

('. Nowell (5 C. B. 109) 244 

Rodney v. Hare (Mos. 296) 515 

Rodriguez v. Heffernan (5 Johns. Ch. 

417) 120,132,137,138,325,555 

Rod well V. Redge (1 C.& P. 220) 272,317 

Rogers v. Batchelor (12 Pet. 221) 96, 97, 

98, 100, 110, 132, 137, 147, 172, 173 

V. Coit (6 Hill 322) 111, 181 

V. Hurd (4 Day 57) 16 

V. Imbleton (5 B. & P. 117) 126 

V. Murray (110 N. Y. 658, 18 N. 

E. 261) 68 

V. Nichols (20 Tex. 719) 328, 338, 

391 

V. Priest (74 Wis. 538, 43 N. W. 

510) 84 

V. Reed (18 Me. 257) 370 

V. Rogers (1 Hall 391) 250 

(,.. (5Ired. Eq. 31) 270,307 

V. Taintor (97 Mass. 291) 243 

Rolfe V. Flower (L. R. 1 P. C. 27) 481, 



V. Peterson (2 Bro. P. C. 436) 

V. Rolfe (15 Sim. 88) 

Rollins V. Stevens (31 Me. 454) 
Rolston V. Click (1 Stew. 526) 



491 
224 

278 
185 
185 



Ixvi 



TABLE OP CASES. 



Rooke V. Nisbet (50 L. J. n. s. Ch. 

5bS) 52U, 530 

Roope V. Herron (15 Neb. 73, 17 N. 

W. 353) 4, 332 

Roosevelt v. Mark (6 Johns. Ch. 26G) 159 
Rootes V. Wellford (4 Muiif. 215) 1(33 

Rooth V. Quin (7 Price 193) (JO, 79, 387, 

402 
Roots V. Mason City Salt Co. (27 W. 

Va. 483) 201, 388 

V. Welford (4 Munf. 215) ' 37fi 

Rose V. Coffield (53 Md. 18) 404, 405 

V. Daniel (3 Brev. 438) 20 

V. Gunn (79 Ala. 411) 108 

V. Murckie (2 Call 409) 273 

V. Poulton (2 B. & Ad. 822) 271 

Rosenbaiun v. Hayden (22 Neb. 744, 

36 N. VV. 147) 115 

Rosenfield v. Haight (53 Wis. 260, 10 

N W. 378) 62 

Rosenkrans v. Barker (115 111. 331, 

3 N. E. 93) 125 

Rosenstein v. Burns (41 F. R. 841) 45-5, 

457, 402 
Ross ■;;. Cornell (45 Cal. 133) 

V. Decy (2 Esp. 469) 

y. Drinker (2 Hall 415) 

V. Henderson (77 N. C. 170) 



248 

75, 272 

60 

325,351, 

366 



156 

92 
437 
293 
538 
465 



V. Howell (84 Pa. 129) 

V. Lawhorn (Dud. 360) 

V. Pearson (21 Ala. 473) 

V. Titsworth (37 N. J. Eq. 333) 

Rothchild ,: Hoae (43 F. R. 97) 
Rothwell V. Dewees (2 Black 613) 

V. Humphreys (I Esp. 406) 89, 143 

Roulston V. Washington (79 Ala. 519) 361 
Ronquette v. Ryan (8 S. W. 702) 204 

Rousillon V. Rousillon (14 Ch. D. 

351 ) 566 

Rovelsky v. Brown (92 Ala. 522, 9 So. 

182) 367 

Rowe V. Wood (2 Jac. & W. 556) 194, 

199, 507 
Rowland, In re (L. R. 1 Ch. 421) 108, 463, 

475 

r. Boozer (10 Ala. 690) 349 

• V. Long (45 Md. 439) 55 

Rowlandsnn, Ex parte (1 Rose 89) 40, 56 

, (1 Rose 416) 468, 490, 493 

, (2 Yes. & B. 173) 326, 327 

. (3 P. Wms. 405) 487, 4»6 

Rowlev V. Adams (8 Jur. 994) 230 

V Stoddard (7 Johns. 207) 143 

Rowth r Howell (3 Ves. 565) 453 

Roxby, Ex parte (1 Mont, on Part. 

198) 485 

Rovs V. Vilas (18 Wis. 169) 434, 435 

Ruckman v. Decker (23 N. J. Eq. 

283) 118, 165, 361 

Ruddock's Case (6 Co 2-5) 152 

Ruff, Ex parte (6 Ves. 126) 475 

Ruffin, Ex parte (6 Ves. 119) 136, 137, 

326, 327, 328, 336, 338, 436, 463, 469, 
490, 494, 500 



Ruffner v. McConnell (17 111. 212) 153 
Rufford, Ex parte (1 Glyn & J. 41) 485 
Rumery v. McCuUoch (54 Wis. 565, 

12 N. W. 65) 151, 367 

Runnels v. Moffat (73 Mich. 188, 41 

N. W. 224) 06 

Rush V. Tliompson ( 112 Ind. 158, 13 

N. E. 665) 163 

Rushing v Peoples (42 Ark 390) 56 

liussell V. Annable (109 Mass. 72) 154 

o. Austwick (1 Sim. 52) 196 

u. Byron (2 Cal. 86) 248 

V. Grimes (46 Mo. 410) 266 

V. Leland (12 All. 349) 71 

V. Lennon (39 Wis. 570) 335 

V. Loscomb (4 Sim. 8) 508 

V. Miller (26 Mich. 1) 354 

V. Pellegrini (6 E. & B. 1020) 148, 

219 

V. Perkins (1 Mass. 368) 315 

V. Swan (16 Mass. 314) 311, 312 

Russia Cement Co. i'. Lepage (147 

Mass. 206, 17 N. E. 304) 242, 243 

Rust V. Cliisolm (57 Md. 376) 435 

Ruth V. Lowrey (10 Neb. 260, 4 N. W. 

977) 334, 478 

Rutherford v. Hill (22 Ore. 218, 29 

Pac. 546) 50 

Rutland Marble Co. v. Ripley (10 

Wall. 339) 284 

Rutledge v. Squires (23 la. 53) 97 

Rutter V. Tailis (5 Sandf. 610) 295 

Ryan v. Mackmath (3 Bro. C. C. 15) 209 



S. 



Sadler, Ex parte (15 Ves. 52) 

V. Lee (6 Beav. 324) 123, 142, 

V. Nixon (5 B. & Ad. 936) 

Sage V. Ensign (2 Ail. 245) 

V. Sherman (2 N. Y. 417) 

Sager v. Tupper (38 Mich. 258) 
St. Barbe, Ex parte (11 Ves. 413) 

Sainter v. Ferguson (7 C. R. 727) 
St. James's Club,/?/ re (2 De G. M. & 

G. 383) 
St. John V. Holmes (20 Wend. 609) 

V. Standring (2 Johns. 468) 

St. Johns, Ex parte (Cooke B. L. 

510) 
St. Marv's, Bank of, v. St. John (25 

Ala. 566) 32, 

Sale V. Dishman (3 Leigh 548) 
Salem, Bank of, v. Thomas (47 N. Y. 

15) 
Salinas v. Bennett (33 S. C. 285, 11 

S. E.968) 18, 

Salisbury's Case (6 Ves. 747) 474, 

Salland v. McRae (16 La. Ann. 193) 
Salmon v. Davis (4 Binn. 375) 152, 
Salomons v. Nissen (2 T. R. 674) 37 
139, 304, 



478 
4.59 
2-18 
160 
95 
68 
474, 
499 
224 

52 
155 
304 

474 

273 
94 

89 

367 
496, 
499 
86 
307 
,58, 
466 



TABLE OF CASES. 



Ixvii 



Salsbury v. Ellison (7 Col, 167, 2 Pac. 

y06, 3 Pac. 485) 136 

Salter V. Ham (31 N. Y. 321) 60, 505 

Saltmarsli v. Bower (22 Ala 221) 143 

Saitoun V. Houston (1 Bing 433) 430 

Sampson v. Shaw (101 Mass 145) 323 
Sanborn v. Merrill (15 Vt. 700) 304 

V. Royce (182 Mass. 5'J4) 343 

V. Stark (31 F R 18) 168 

Sander v. Sander (2 Coll. 270) 460 

Sanders v. RuJdle (2 T. 13. Mon. 

139) 118 

I'. Young (31 Miss 111) 344 

Sanderson v. Brooksbank (4 C. & P. 

286) 180 

V. Stockdale (11 Md 503) 476 

Sandham, Ex parte (4 Deac. & Ch. 

812) 428 

Sandilands v. Marsh (2 B. & Aid. 

673) 142, 103, 186, 206 

Sandusky, In re (17 N. B R. 452) 336 
Sanford v. Mickles (4 Jolins. 224) 381 
Sangster v. Mazarredo (1 Stark. 161) 68 
Sangston v. Hack (52 Md. 173) 47, 20], 
213, 222, 525, 527 
San Jose Indians, The (2 Gall. 208) 20, 234 
Santa Clara Min. Ass. v. Quicksilver 

Min. Co. (17 F. R. 657, 8 Sawy. 

330) 34 

Sargeant, Ex parte (1 Glyn & J. 183) 260 
Sargent v. Henderson (79 Ga. 268, 5 

S. E. 122) 85 

Saunders v Johnson (Skin. 401) 216, 257 
V. Reilly (105 N. Y. 12, 12 N. E 



170) 



331 
491 
463 
350 
468 
433 
400 



Sauthoff, //( re (16 N. B. R. 181) 
Savaoe. In re (16 N. B. R. -308) 

v. Carter (9 Dana 408) 

V. Marsii (10 Met. 594) 

V. Putnam (32 Barb. 425) 

V. Rockwell (32 X. Y. 501) 

Saville v. Robertson (4 T. R. 725) 73. 88, 
89, 101, 102, 184, 220, 430 
Saving & Loan Soc. v. Gibb (21 Cal. 

595) 438 

Sawver r. Proctor (2 Vt. 580) 264, 265 
Saver v. Bennet (1 Cox 107) 452, 458, 459 
Savre v Herick (7 W. & S. 383) 38 

Scaife v. Jackson (5 D. & R. 290, 3 B. 

&C. 421)" 483 

Scales u. Jacob (3 Bing. 652) 157 

Scanlon (•. Union Ins. Co. (4 Biss. 

511) 235 

Scarf V. Jardine (7 App. Cas. 345) 403 
Schack r. Autorg (1 M. & S 574) 316 
Schatzill V. Bolton (2 McC. 478, 3 

McC. 33) 345 

Scheifflin v. Stevens (1 Wins. 106) 405 
Schenierhorn v. Loines (7 Johns. 311) 95 
Schenkl v. Dana (118 Mass. 236) 200 

Schindel v. Gates (46 Md. 604) 160 

Schlapback v. Long (90 Ala. 525, 8 

So. 113) 24,103,335 

Schleicher v. Walker (28 Fla. 680, 10 

So. 33) 331, 333 



Schmertz v. Shreeves (02 Pa 457) 
Schmidlapp v. Currie (55 Miss. 597) 98, 
Schneider t: Sansom (62 Tex 201) 
Scholefield v. Eichelberger (7 Pet. 

585) 2(), 127, 399, 432, 

V. Heafield (7 Sim 667) 

Scholey v. Walton (12 M. & W. 510) 
Schollenberger v. Seldonridge (49 Pa. 

83) 95, 181, 

Schulten v. Lord (4 E. D. Smith 206) 

Sehurtz v. Romer (82 Cal. 474, 23 Pac 

118) 
Schwabacker v. Riddle (84 111. 517) 
Schwanck c. Davis (25 Neb. 196,41 

N. W. 141) 134, 

Scotland, Bank of, v. Christie (8 CI. 

& F. 214) 
Scott V. Avery (8 Ex. 487, 5 H. L. C. 

811) 148, 

V. Beale (6 Jur. n. ^. 559) 

V. Berkeley (3 C. B. 925) 

V. Buchanan (11 Humph. 468) 

V. Campbell (30 Ala. 728) 45, 

252, 

V. Colraesnil (7 J J. Marsh. 416) 

114, 

V. Dansley (12 Ala 714) 

V. Fisher (4 T. B. Mon. 387) 

V. Godwin (IB & P. 74) 

V. Mdne (5 Beav. 215, 7 Jur. 

709) 443, 

V. Raynient (L. R. 7 Eq. 112) 

v. Rowland (26 L. T. Rep. 391) 

Scott's Appeal (88 Pa. 173) 
Scruegs V. Blair (44 Miss. 406) 

"r. Burruss (25 W. Va. 670) 

r. Russell (McCah. 39) 

Scull's Appeal (7 Atl. 588) 

Sea, F. & L Ass. Soc. In re (5 De G. 

M. & G. 465) 
Seabury v. Bolles (51 N. J 103, 16 

Atl. 54) 103, 

Searle v. Adams (3 Kas 315) 
Sears v. Starbird (78 Cal. 225, 20 Pac 

547) 159, 160, 

Second Nat. Bank, Appeal of (83 Pa. 

203) 

V. Burt (93 N. Y 233) 113, 

V. Hall (35 Oh. St. 158) 

V. Hume (4 Mack, 90) 

Secor i\ Keller (4 Duer 416) 
Seddon, Ex parte (2 Cox 49) 483, 

V. Connell (10 Sun. 79) 

Sedgwick v. Daniell (2 H & N 319) 



154 
331 
132 

444 
444 

448 



Seelev v. Mitchell (85 Kv. 508, 4 S. W. 

190') 
Seibert v. Bakewell (87 Pa. 506) 
Seighortner v. Weissenborn (20 N. J. 

Eq 172) 455, 

Seldner v. Mount Jackson Nat Bank 

(66 Md. 488, 8 Atl. 262) 
Seldon v. Hickock (2 Cai. 167) 



542, 
545 

231 

118 

170 

425 

220 
427 
554 
17, 
20 
,48, 
254 
76, 
409 
112 
420 
316 

515 
210 
242 
254 
354 
135 
7 
478 

552 

104 
203 

268 

359 

488 
50 
186 
273 
485 
269 
255, 
269 

.368 
540 

456 

146 
303 



Ixviii 



TABLE OF CASES. 



Seligman i'. Heller Bros. Clo. Co. (69 

Wis 410, 34 N. W. 232) 347 

Sellers v. Shore (89 Ga. 416, 15 S. E. 

494) 335, 433, 435 

V. Streator (5 Jones 261) 154, 155 

Sells V. Hubhell (2 Johns. Ch. 397) 276 
Servant v. Rusk (43 Cal. 235) 491 

Servante v. James (10 B & C. 410) 207 
Serviss v. McDonnell (107 N. Y. 260, 

14 N. E. 314) 429 

Sessions v. Jones (0 How. Miss. 123) 289 

V. Kichinond (1 R. I. 298) 223 

Settenibre v. Putnam (30 Cal 490) 556 
Setzer r. Beale (19 W, Va. 274) 47, 128 
Sewall V. Cailin (3 Wend. 291) 320 

Sewel V. Bridge (1 Ves. Sen. 297) 615 
Sexton r. Anderson (95 Mo 373, 8 S. 

W. 564) 98, 331 



Se.xton (9 Gratt. 204) 
Shaaber v. Bushong (105 Pa. 514) 
Shackelford v. Clark (78 Mo 491) 



195 
83 

476, 
478 



r. Shackelford (32 Gratt. 481) 332 

Shackle v. Baker (14 Ves. 468) 237, 239, 240 



Shafer v. Randolph (99 Pa. 250) 
Shafer's Appeal (106 Pa. 49) 
Shaffer r. Snvder (7 S. & H. 503; 
Shakeshaft's Case (G Ves. 123) 



Trowbridge (28 N. J. 



10: 

350 

411 

474, 496, 
499 

Eq. 

97 
409 



Shaler 

595) 
Shaniburg v. Abbott (112 Pa 6) 

V Ruggles (83 Pa. 148) 409,429, 554 

Shanks v. Klein (104 U. S. 18) 364 

Shannon v. Wriglit (60 Md. 520) 284, 293 
Sharon Canal Co. (; Fulton Bank (7 

Wend. 412) 28 

Sharp V. Hibbins (42 N J. Eq 543, 9 

Atl. 113) 508 
V. Hutchinson (100 N. Y 533, 3 

N E. 500) 542 

r. Taylor (2 Phil. 801) 8, 269 

V. Warren (6 Price 131) 259 

Sharpe v Cummins (2 D. & L 504) 232 
Sbattuck V. Chandler (40 Kas. 516, 20 

Pac 225) 134, 136 

Shaw, Appellant (81 Me. 207, 16 Atl. 

662) 432, 451 

, Ex parte (1 Glvn & J. 129) 146 

V. Holland (15 M & W. 136) 550 

V. Picton (4 B & C. 715) 421 

V. Rhodes (2 Russ 539) 299 

V. Pratt (22 Pick. 305) 143 

V. Robbins (12 Wheat. 369) 468 

Shea V. Donahue (15 Lea 160) 223 

Shearer v. Paine (12 All. 289) 367 

V. Shearer (98 Mnss. 107) 354, 361 

Sheble v. Strong (128 Pa. 315, 18 Atl. 

397) 538 

Shed V. Pierce (17 Mass 623) 144 

Sheedy v. Bank (62 Mo. 17) 345 

Sheehy v. Graves (58 Cal 449) 231 

V. Mandeville (6 Cranch 253) 76. 

416, 417, 483, 484 
Shelby v. Mandeville (6 Cranch 264) 95 



Shelton V. Cocke (3 Munf. 191) 159, 160 

V Knight (68 Ala. 5U8) 201 

V. Pollock (1 H. & M 422) 150 

Shepard r Haw lev (1 Conn. 367) 38, 165 

V. Pratt (16 Kas. 209) 46 

Shepherd, Ex parte (2 Mont D & D 
204) 485 

V. Morris (4 Beav. 252) 514 

V. Towgood (T. & H. 379) 503 

Shepley v. Waterhouse (22 Me 497) 159 
Sheppard v. Boggs (9 Neb. 257, 2 N. W. 
370) 237 

V. Oxenford (1 K. & J 491) 298 

Sheridan v. Medara (2 Stockt. 469) 61 
Sherman v. Kreul (42 Wis. 33) 445 

Sherrod v. Langdon (21 la 518) 103 

Sherry r. Gilmore (58 Wis. 324, 17 

N. W. 252) 351 

Sherwood ?•. Barton (36 Barb, 284) 179 

V. Creditors (42 La. Ann. 103, 7 

So. 79) 231, 542 

V. Mar wick (5 Me. 295) 118 

V. St. P. R. R. (21 Minn 127) 7, 350 

V Snow (46 la. 481) 171, 187 

Shieknesse v. Bromilow (2 Cr & J. 

425) 82 

Shields v. Oney (5 Munf. 550) 272 

Shirley v Long (6 Rand. 735) 465 

Shirreff y. Wilks (1 East 4b) 96, 174, 176, 

• 427 
Shoe & Leather Bank v. Herz (89 N. 

Y. 629) 404 

Shoemaker v. Benedict (UN Y. 176) 160 
Shoemaker Piano Mfg. Co. v. Bernard 

(2 Lea 358) 427, 429 

Shorb V Benudrv (56 Cal. 446) 50 

Short V. Magruder (22 F. R. 46) 350 

Shotwell V. Miller (Coxe 181) 143 

Shriver r. McCloud (20 Neb 474, 30 

N. W 534) 9 

Shriver's Appeal (12 Atl 553) 201 

Shropshire v. Shepperd (3 Ala 733) 32, 45 
Shuggart v. Lycoming Ins. Co. (55 

Cal. 408) 2.35 

Shumway v. Reed (34 Me 560) 483 

Siiurlds v. Tilson (2 McLean 458) 406 
Shute V. Taylor (5 Met. 67) 225 

Sibley v. Lambert (30 Me. 2-53) 161 

V. Parsons (53 N. W. 786) 404 

V. Young (26 S. C. 415, 2 S. E. 

314) 150, 151 

Sickman v. Abernathy (14 Col. 174, 

23 Pac 447) 332 

Siddall, In re (29 Ch. D. 1) 557, 560, 561 
Siegel V. Chidsey (28 Pa. 287) 88, 46.3, 464 
Siegfried v. Ludwig (102 Pa. 547) 108, 378 
Sieghortner v. Weissenborn (20 N.J 

Eq. 172) 248 

Siffkin V. Walker (2 Camp 307) 181, 316 
Sigler V. Bank (8 Oh. St. 511) 332 

V. Piatt (16 Mich. 206) 160 

Sigourney v Drury (14 Pick. 387) 159 

V. Munn (7 Conn 11) 350, 436, 443, 

531 
Sikes V. Work (6 Gray 433) 261, 265 



TABLE OF CASES. 



Ixix 



Silk V. Osborn (1 Esp. 140) 

V. Prime (2 L. Cas. Eq. 318) 

Sillitoe, E.r parte (1 Glyn & J 374) 

49(5, 407, 
Silver v. St. Louis, I. M. & S. liy. (72 

Mo. 194) 
Silverman v. Chase (90 111. 37) 168, 

Simiiions v. Curtis (41 Me. 373) 

o. Leonard (3 Hare 581) 443, 

V. Swaine (1 Taunt. 540) 

Kimms v. Brutton (5 Ex. 802) 

V. Kirtley (1 T. B. Mon. 80) 

Simonds v. Strong (24 Vt. 042) 
Simpson, Ex jiarte (2 Rose 338) 

, (Mont. & Cii. (i()2) 

, In re (L. II. Cli. 572) 

V. Bloss (1 Taunt. 240) 

V. Feltz (1 McC. Ch. 21.3) 55, 439, 

/•. (iediles (2 Bay 538) 

,j. llowden (3 My. & C. 07) 

V. Leach (80 111. 280) 

V. Tenney (41 Kas. 501, 21 Pac. 

634) 
Sims V. Bond (5 B. & Ad 380) 273, 

i\ Brittain (4 B & Ad. 375) 

V. Brutton (1 E. & B. 446) 

V. Smith (12 Rich. L 085) 

V. Willing (8 S. & R. 103) 

Simson v. Cook (l Bii'g. 452) 
V. Ingiiam (2 B. & C. 05) 



315, 
420, 
423, 
Sindelare v. Walker (137 111. 43, 27 

N. E. 59) 
Singer v. Carpenter (125 111. 117, 17 
N. E. 701) 230, 

V. Kelly (44 Pa. 145) 540, 

V. Townsend (53 Wis. 120) 

Sitler V. Walker (1 Freem Ch. 77) 

Skaife v. Jackson (3 B. & C. 421) 
Skiffkiu V. Walker (2 Camp. 308) 
Skillings v. Coolidge (14 Mass 43) 
Skinner (;. Dayton (19 Johns. 513) 

151. 154, 371, 390, 508, 552, 

V. (5 Johns. Ch. 351) 151, 

V. Shannon (44 Mich. 86, 6 N. W. 

108) 

V. Stocks (4 B. & Aid. 437) 272, 

317, 318, 

V. Tinker (34 Barb. 333) 

Skip V. Harwood (1 Dick. 114) 

V. (2 Swanst. 586) 137, 290, 

Skipworth v. Lea (16 La. Ann. 247) 
Skirving v. Williams (24 Beav. 275) 
Slater, Ex parte (6 Ves. 140) 143, 

V. Arnett (81 Va. 432) 

V. Lawson (1 B. & Ad. 396) 157, 

Slaughter v. Doe (07 Ala. 494) 

Slee V. Bloom (20 Johns. 069, 5 Johns. 

Ch. 360) 
Sleech's Case (1 Mer. 530) 445, 470, 
Sleraraer's Appeal (58 Pa. 168) 



441 
440 
474, 

499 

512 
429, 
445 
135 
531 
402 
117 
520 
400 
480 
494 
442 
9 
524 
102 
289 
302 

50 
317 
317 
82 
87 
54 
425 
421, 
425 

308 

231 
542 
345 

291. 
344 
170 
89 
148 

150, 
553 
154 

335 
310, 
408 
392 
301 
391, 
392 
434 
453 
144, 
485 
508 
448 
351 

511 

482 
457 



Slipper V. Stidstone (1 Esp. 47, 5 T. 

R 493) 437 

Sloan V. Machine Co (70 Mo. 206) 146 

V. Moor? (37 Pa. 217) 294 

Slocomb V. Lizard i (21 La. Ann. 355) 187 
Slocum V Hooker (13 Barb. 530) 22 

Sloo c. Bank of Illinois (2 111. 441) 150, 

155, 156 
Small V. Arwood (Younge 456) 322 

V. Fitzwilliams (Prec. Ch. 102) 224 

Smith, Ex parte (3 Madd. 63, Buck 



149) 



226, 403 

463, 404 

472 

485 
487 
488 



(5 Ves. 295) 

, (Buck 492) 

, (3 Bro. C. C. 46) 

, (1 P. Wms. 237) 

, (1 Deac 3«5) 

, (lGlvn&J.74,6Madd.2) 489, 

491, 498 

, (2 Sim. 357) 495 

, (16 Joims. 102) 200, 324, 325, 

343, 475 

V. Abbott (5 Abb. N. C 274) 243 

V. Allen (18 Johns. 245) 248 

V. Anderson (15 Ch. D. 247) 557, 

558, 500, 561 

V. Argall (6 Hill 479, 3 Den. 

435) 638, 545, 547 

V. Ayer (101 U. S. 320) 451 

V. Ayrault (71 Mich 475, 39 N. 

W. 724) , 126 

V. Baily (11 Mod. 401) 142, 168, 183 

V. Barker (10 .Me. 458) 325 

V. Barrow (2 T, R. 476) 250, 256, 259 

I'. Black (9 S. & R. 142) 76, 93 

c. Burnham (3 Sumn. 435) 6, 35, 76 

V. Chandos (Barn. Ch. 419) 211 

V. Clay (3 Bro C. C. 639) 514 

r. Coleman (7 Jur. 1053) 82, 175 

V. Collins (115 xMass. 388) 34, 87, 95. 

105 

r. Craven (1 Cr. & J. 500) 89, 103 

>-. Cummings (2 Pars. Cas. 92) 202 

r. De Silva (Cowp. 409) 136, 403, 501 

V. Danvers (5 Sandf. 669) 301 

V. Edwards (2 H. & G. 411) 48 

V. (7 Humph. 100) 328,338 

V. Emerson (43 Pa. 466) 337 

V. Everett (27 Beav. 446) 237, 238 

V. (126 Mass. 304) 305 

V. Fromont (2 Swanst. 330") 284 

('. Goldsworthy (4 Q. B. 430) 551 

V. Griffith (3 Hill 3-33) 08 

V. Hall (5 Bosw. 319) 118 

V. Harris (76 Ind. 104) 335 

V. Hill (13 Ark 173) 35 

V. Hull Glass Co. (19 L. J. C. P. 

123) 551, 553 

0. Jackson (2 Edw. Ch. 28) 325. 302 

V. Jameson (6 T. R. 001) 123, 200, 

385, 420 

I'. Jarves (2 Ld. Ravm 1484) 168 

V. Jeyes (4 Beav. 503) 208, 293, 295. 

371, 456, 457 
V. Johnson (2 Edw. 28) 327 



Ixx 



TABLE OF CASES. 



Smith V. Jones (12 Mc. 332) 35, 76, 349 

V. (18 Neb. 481, 25 N. W. 

624) 352, 366 

V. Kane (2 Paige 303) 47!) 

V. Kerr (3 N. Y. 144) 151 

i". Knight (71 III. 148) 46 

V. Lowe (1 Etlw. Ch. 33) 296 

V. Ludlow (6 Johns. 257) 159 

V. Lusher (5 Cow. 688) 80, 168, 180, 

206, 246 

f. Mallory (24 Ala. 628) 446 

V. Mayo (9 Mass. 62) 16, 19 

V. Moynahan (44 Cal. 53) 57 

V. Oriell (1 East 368) 304, 391, 464, 

466, 471 

V. Perry (5 Dutch. 74) 

V. Rogers (17 Johns. 340) 



V. Shelden (35 Mich. 42) 

V. Sherwood (10 Jur. 214) 

V. Sinnott (44 La. Aun. 51 

So. 413) 

V. Sloan (37 Wis 285) 

(;. Smith (5 Ves. 189) 



60 

96, 418, 

482 

328, 381 

108 

10 

851 

82 

226, 353 



(80 Cal. 323, 21 Pac. 4, 22 



368 
248 
74, 107, 483 
468 
332 
304, 391, 463, 



Pac. 186, 549) 

I'. (33 Mo. 557) 

r. (27 N. H. 244) 

V. (2 Johns. 235) 

V. (50 N. W. 64) 

V. Stokes (1 East 363) 

464, 465, 466, 475 

V. Stone (4 Gill & J. 310) 152, 307 

V. Snmmerhn (48 Ga. 425) 53 

V. Tarlton (2 Barb. Ch. 336) 6, 7 

V. Tupper (4 Sm. & M. 261) 150, 156 

V. Tustin (5 Cow. 688) 308 

V. Vanderburi: (46 111. 34) 57, 81 

IK Walker (-57 Mich. 456, 24 N. 

W. 830, 26 N. W. 783) 244 

V. Warden (86 Mo. 382) 537 

V. Watson (2 B. & C. 401) 60, 492 

V. Wigley (3 Moo. & S. 174) 423, 425 

V. Winter (4 M. & W. 454) 151, 376, 

382 

v. Wright (5 Sandf. 113) 56 

v. (4 Abb App. 274) 57 

Smitha r. Cnreton (31 Ala 652) 164 

Smout V. Ilberv (10 M. & W. 1) 387 

/•. Harrie (31 111. 62) 385 

Smyth V. Hawthorn (3 Rawle 355) 443 

V. Smyth (1 Swanst. 2-52) 292 

V. Strader (4 How. 404) 180 

V. Tankerslev (20 Ala 212) 303 

Snaith >: Burridge (4 Taunt. 684) 96, 97, 

120, 133 
Snead t: Baringer (1 Stew. 134) 91 
Sneed i-. Cogle^(4 Lift. 162) 181 
V. Deaf (53 Ark. 152, 13 S. W. 

703) 204 

V. Wiester (2 A. K. Marsh. 277) 420, 

423 
Snell V. Crowe (3 Utah 26, 5 Pac. 522) 344 

c. D wight (120 Mass. 9) 8, 9 

Sniffer v. Sass (14 Rich. L. 20) 478 



Snodgrass v. Broadwell (2 Litt. 353) 312 

IV Reynolds (79 Ala 452) 12 

Snodgrass's Appeal (13 Pa. 471) 331 

Snow V. Howard (35 Barb. 55) 183 

Snowball, Ex parte (L. R. 7 Ch. 5-34) 332 
Snyder v. Burnhani (77 Mo. 52) 34 

V. May (19 I'a. 235) 150 

Sodiker /•. Applegate (24 W. Va. 411) 60 
Solomon r. Kirkwood (55 Mich. 256, 
21 N. W. 336) 393 

V. Solomon (2 Ga. 18) 87, 194, 211 

Solly r. Forbes (4 Moore 448, 2 Br. & 

B. 38) 144, 316 
Somerhy v. Buntin (118 Mass. 279) 7, 67, 

280 
SomerviUe r. Mackay (16 Ves. 382) 217, 

279' 
Soper V. Fry (37 Mich. 236) 155 

Soule (-•. Havward (1 Cal. 345) 58 

Soules V. Burton (36 Vt. 6-52) 198 

Southard v. Steele (3 T. B. Mon. 435) 149 
South Carolina Bank v. Case (8 B. & 

C. 427) 113, 114, 168, 181, 206 
V. Humphreys (1 McC. 388) 381, 

413 
Southern Cotton Oil Co. i\ Henshaw 

(89 Ala. 448, 7 So. 760) 351, 363 

Southern Fertilizer Co. r. Reams (105 

N. C. 283, 11 S. E. 467) 61 

Southmayd's Appeal (8 Atl. 72) 212 

Southwick r. McGoyern (28 la. 533) 69 
Spalding v. Hedges (2 Barr 240) 102 

V. Wilson (80 Kv. 589) 851 

Sparhawk v. Russell (10 Met. 305) 446 
Sparman v. Keim (83 Ky. 245) 17 

Sparrow v. Chisman (9 B & C. 241) 145, 

179 
Spaulding v. Ludlow Mills (36 Vt. 

150) 95,161,402 

Speake v. Prewitt (6 Tex. 252) 273, 312 
Spear v Gillet (1 Dev. Eq. 466) 93 

1-. Newell (13 Vt. 288) 250, 263, 264 

Spears v. Toland (1 A. K Marsh. 203) 163 
Speer r. Bishop (24 Oh St. 598) 103, 387 
Speights V. Peters (9 Gill 472) 295, 297 
Spencer v. Billing (3 Camp. 310) 105, 492 

V. Durant (Comb 115) 216, 257 

Spenceley c. Greenwood (1 F. & F. 

297) 88T 

Sperry, I» re (1 Ashm. 347) 327, 33(i 

Spicer v. James (Coll. Part 164) 241 

Spiers v. Houston (4 Bligh x. s. 515) 31fi 
Spiro r. Paxton (3 Lea 75) 351 

Sprague, Ex parte (4 De G. M. & G. 

866) 494 

V. Ainsworth (40 Vt. 47) 181 

Springer r. Cabell (10 Mo. 640) 248 

V. Foster (10 Met. 597) 468 

Spurr V. Cass (L. R. 5 Q. B. 6-56) 109 

Staats V. Bristow (73 N. Y. 264) 344 

V. Howlett (4 Den. 559) 183, 240, 

243 
Stables v. Eley (1 C. & P. 614) 407 

Stackpole v. Davoren (1 Bro. P. C.9) 514 
Stacy V. Decey (2 Esp. 169) 317 



TABLE OF CASES. 



Ixxi 



Stafford Nat Bank v. Palmer (47 

(.'on II. 44.'-J) 
Stair u. Uichanlsoii (108 Ind. 429,9 

N. E. 300) 
Stall <;. Catskill Hank (18 Wend.4G6) 

Stanliope v. Swaffurd (80 la. 45, 45 

N. VV. 40:i) 
Staiinanl r. VVIiittlesey (9 Conn. 556) 
StansfiL'ld (• Levy (o Stark. 8) 
Stanton ". i5iic-kner (24 La. Ann. 301) 
V. Westover (101 N. Y. 265, 4 N. 

E. 52;)) 231, 331, 

Stanton Iron Works Co., In re (21 

13eav. 164) 
Stanwood r. Owen (14 Gray 105) 
Sta[)ilton r. Stapilton (1 Atk. 10) 
Staples V. Sprague (75 Me. 458) 59, 
Star Wajron Co. ;,'. Swezey (52 la. 

;W1, 3 X. \V. 421) 
Stark r. 'I'aylor (4 McC. 413) 
Starnes /•• (^iiin (G Ga. 84) 
State ('. Biernian (1 Strobli. 256) 

r. Rowden (18 Fla 17) 231, 

/'. (\atskill Bank (18 Wend. 480) 

r. i)av (29 X. E. 430) 

-■. Enunons (99 Ind. 452) 

/•. Kenan (94 N C. 296) 

/'. Liiiaweaver (3 Head 51) 

r. Xeal (27 N. H. 131) 

IV Xebraska Distilling Co. (29 

Nel). 701), 46 N. W. 155) 559, 565, 

r. Spencer (64 Mo. 355) 

V. Standard Oil Co. (30 N.E. 279) 

564, 565, 
State Capital Bank v. Noyes (62 N H. 

35) 
Stead y. Salt (3 Ring, 101) 147, 148, 
Stearns v. Barrett (1 Pick. 443) 

V. Burnliani (4 Me. 84) 172, 

V. Haven (14 Vt. 540) 77, 103, 

r. (16 Vt. 87) 

. Hongiiton (38 Vt. 583) 

Siebbins, Ex parte (R. M. Charlt. 77) 
Steel r. Jennings (Ciieves 183) 142, 

r. Western (7 J B. Moo. 31) 

Steele l\ Jennings (1 McMull. 297) 

r. Stuart (L. K. 2 Eq. 84) 70, 

Steers v. Lashlev (6 !'. R. 61) 
Stegall r. Coney (49 .Miss 761) 
Steiglitz r. Eg^niirton (Holt 141) 
Stein V. La Dow (13 Minn. 412) 
V. Robertson (30 Ala 286) 



134, 
214, 



50 

108 
180, 
184 

125 

507 

272 
248 

335 

65 
387 
511 
192 

168 
23 
303 
117 
335 
174 
335 
344 
335 
118 
117 

566 
335 
559, 
566 

83 
152 
401 
173 
107 

60 
171 
327 
143 
273 
160 
118 
9 

97 
150 
135 
234. 



Steinhart i>. Fyhrie (5 Mont. 463, 6 

Pac. 367) 135 

Stephens v. Orman (10 Fla 9) 195, 513 

V. Revnolds (2 F & F. 147) 170 

/•. Thompson (28 Vt. 77) 416, 417 

Sterlinsi /•. Bock (40 Minn. 11, 41 N. 
W. 236) 151, 153 

r. Jandon (48 Barb. 459) 87 

Sternburg v. Callanan (14 la. 251) 99, 

427 
Sterndale v. Hankinson (1 Sim. 393) 425 



Sterry v. Clifton (9 C. B 110) 15, 36 

Steuart v. Gladstone (10 Ch. D. 628) 569 
Steuben Countv Bank v. Alberger 

(101 N. Y. 202) 168 

Stevens v. Hennnig (1 K. & J. 108, 6 

De G. M. & G. 223) 315 

V. Faucet (24 111, 483) 46, 60 

V. Gainesville Nat. Bank (62 Tex. 

499) 46 

(,-. Lunt (19 Me. 70) 312,316 

r. Morse (7 Me 36) 384 

u. Perry (113 Mass. 380) 336 

('. Yeatnian (19 Md 480) 384 

Stevenson /; Mailiers (67 111. 123) 508 
Steward r. Blakeway (L. R. 4 Ch. 

60!) 352 

/•. ( L. R. 6 Eq. 479) 358 

Stewart, In re (62 la. 614, 17 N. W. 

897) 

V. Brown (37 N. Y. 350) 

V. Forbes (1 McN. & G. 137) 



98 
491 
233, 
234 
119 
9 



V. Levy (36 Cal. 159) 117 

V. Mcintosh (4 H & J. 233) 

V. Robinson (115 N. Y. 328,22 

N. E. 160) 451 

i: Rogers (19 Md. 98) 428 

Stewart's Appeal (105 Pa. 307) 160 

Stileman i\ Ashdown (2 Atk. 480) 514 
Still V. Focke (66 Tex. 715, 2 S. W. 59) 231 
Stillman c. Harvey (47 Conn. 20) 139 

Stiinson /•. Lewis (.36 Vt. 91) 554 

V. Whitney (130 Mass. 591) 169, 403 

Stirling r. Heintzraan (42 Mich. 449, 

4 N. W. 165) 1, 115 

Stirrup's Case (6 Ves. 743) 474, 496, 499 
Sioal lings v. Baker (15 Mo. 481) 53 

Stockdale v. Ullery (37 Pa. 486) 171 

Stocken r. Dawson (6 Beav. 371) 201, 439, 

448 
Stocker v. Brocklebank (3 McN. & 

G. 250) 60 

Stockton V. Frey (4 Gill 406) 124, 125 
Stockwell v. Dillingham (50 Me. 442) 87 
Stoddard Mfg. Co. v. Krause (27 Neb. 

83, 42 N. W. 913) 404, 405 

Stokes r. Brown (4 Chand. 39) 20 

Stone, Ex parte (L. R. 8 Ch. 914) 282 

V. Chamberlin (20 Ga. 259) 94, 381 

V Dennis (3 Port. 231) 220 

V. Fouse (3 Cal. 294) 454, 507 

V. Marsh (6 B. & C 551) 121 

V. (R. & .M. 304) 121 

r. Mattinsily ( 19 S. W. 402) 248 

V. Sevmour (15 Wend 19) 420 

Storer v Flack (41 Barb. 161) 7 

V. Hinkley (Kirby 147) KiO 

V. Hunter (3 B. & C. 368) 493 

Storrs V. Birker (6 Johns. Ch. 166) 492 
Story V. Livingstone (13 Pet. 359) 469 

('. Moon (8 Dana 331 ) 456 

V Winsor (2 Atk. 6-30) 34 

Stouffer V. Coleman (1 Yeates 390) 465 
Stoughtou V. Lynch (1 Johns. Cii. 

467) 194, 443 



Ixxii 



TABLE OF CASES. 



Stougliton V. Lynch (2 Johns. Ch. 

209) 215, 511, 515, 516, 52U, 522 

Stout V. Baker (o2 Kas. llo, 4 Pac. 

141) 334 
V. Ennis Nat. Bank (09 Tex. 

384, 8 S. \V. 808) 143, 152 

V. P^ortnne (7 la. 183) 327, 328, 338 

V. McNeill (98 N. C. 1, 3 S. E. 

915) 335 
V. Zulick (48 N. J. 599, 7 Atl. 

362) 50 

Stoveld, Er parte (1 Glvn & J. 303) 298 

V. Eade (4 Bing. 154) 424 

Strain ?'. Wright (7 Ga. 568) 17 

Strang v. Bradner (114 U. S. 555) 124 
Stranae r. Lee (3 East 484) 315 

Strangford r. Green (2 Mod. 228) 149 

Straus V. Kerngood (21 Gratt. 584) 335 
Strauss v. Frederick (91 N. C. 121) 437 
Strecker v. Conn (90 Lid. 469) 105, 404 
Street v. Rigby (6 Ves. 815) 220, 462 

Stretch v. Talmadge (65 Cal. 510, 4 

Pac. 513) 512 

Stroller v. Elting (97 N. Y. 102) 45 

Stroman v Varn (19 S. C. 807) 151, 3fi7 
Strong V. Fish (13 Vt. 277) 179 

y. Foster (17 C. B. 201) 417 

V. Lord (107 111. 25) 359, 363 

V. Smith (62 Conn. 39, 25 Atl. 

395) 69 
V. Stapp (74 Cal. 280, 15 Pac. 

835) 393 

Stroud, Ex parte (2 Glyn & J. 127) 474, 499 
Struthers v. Pearce (51 N. Y. 357) 196, 

204 
Stuart V. Adams (89 Cal. 367, 26 Pac. 

970) 34 

17. Coming (32 Conn. 105) 333 

Studdy V. Sanders (2 D. & R 347) 69 

Stuniph V. Bauer (76 Ind 1-57) 56, 343 
Styles V. Cowper (3 Atk 692) 492 

Suau V. Caffe (122 N, Y. 308, 25 N. E. 

488) 24 
Sullivan v. Greaves (Park Ins. 8) 9, 269 
V. Smith (15 Neb. 476, 19 N. W. 

620) 367, 368 
V. Sullivan Mfg. Co. (20 S. C. 

79) 51 

Summerlot v Hamilton (121 Ind. 87, 

22 N. E. 973) 139 

Sumner v. Hampson (8 Ohio 358) 137, 

361, 304, 366, 500 

?•. Powell (2 Mer. 37) 330 

Sutcliffe V. Dohrman (18 Ohio 181) 325 
Sutro r. Wagner (23 N. J. Eq 388, 24 

N. J. Eq, .5^9) 293 

Sutton v. Clark (6 Taunt. 29) 125 

V. Gregory (2 Peake 150) 168, 180 

V. Irwine (12 S & R. 13) 185, 186 

Suydam v. Barber (6 Duer 34) 92 

V. Owen (14 Grav 195) 435 

Swan V. Stedman (4 Met. 548) 151 

V. Steele (7 East 210) 70, 73, 106, 

131. 142. 1-52. 168, 171 
Swasey v. Antram (24 Oh. St. 87) 24 



Swascy v. Vanderheyden (10 Johns. 

33) 16 

Swearingen v. Bassett (65 Tex. 267) 351 
Sweeney v. Neeley (53 Mich. 421, 19 

N. W. 127) 526 

Sweet V. Bradley (24 Barb 549) lb6 

V. Jacocks (6 Paice 355) 503 

V. Morrison ( 103 N. Y. 235, 8 N. 

E. 396) 192 

y. Read (12 R.I. 121) 345 

Sweotser v. French (2 Cush. 309) 184, 185 
Sweetzer v. Mead (5 Mich. 107) 133, 153 
Swift V. Ward (80 la. 700, 45 N. W. 

1044) 217, 392, 393, 529, 530 

Syers v. Syers (1 App. Cas. 174) 56 

Svkes v. Beadon (11 Ch. D. 170) 8, 9 

Sylvester v. Smith (9 Mass. 121) 88, 272 
Symonds v. Carter (32 N. H. 458) 322 



Taber v. Cannon (8 Met. 456) 111 

Tabler v. Brvant (62 Miss. 350) 333 

Taft V. Buffum (14 Pick. 322) 392 

V. Sergeant (18 Barb, 320) 17, 18 

V. Ward (111 Mass. 518) 550 

V. (106 Mass. 518) 550 

Taggard v. Loring (16 Mass. 336) 63 

Tait V. Murphv (80 Ala. 440. 2 So. 

317) ' ■ 231, 344 

Taitt, Et parte (16 Ves. 198) 479, 480 
Tallmadffe v. Penover (35 Barb. 120) 177 
Tanis V. Hetner (9Va.441) 111 

Tanner v. Hall (1 Barr 417) 97, 184, 187 
Tanner & Delaney Engine Co. ?'. 
Hall (86 Ala. 305, 5 So. 584) 68, 104, 

108 

Tapley v. Butterfield (1 Met. 515) 131, 

133, 134, 142, 153, 367 

Tappan v. Bailev (4 Met. 535) 553 

V. Blaisdeil (5 N. H. 190) 325, 338, 

345, 446 
159, 160 
468 
50 
368 
163 
270 
555 

236 



V. Kimball (30 N. H. 136) 

V. Poor (15 Ma.'is. 419) 

Tarbell r. Page (24 111.46) 

V. West (86 N. Y 280) 

Tassey v. Church (4 W. & S. 141) 

V. (5 W. & S. 468) 

Tatani v. Williams (3 Hare 347) 
Tate V. Citizens' Ins. Co. (13 Gray 

79) 

V. Clements (16 Fla. 339) 159, 160 

V. Mut. Ins. Co. (13 Gray 79) 311, 

312 
Tatlock V. Harris (3 T. R. 180) 386 

Tattersall v. Groote (2 B. & P. 131) 11, 
220, 276, 454 
Tav V. Ladd (15 Gray 296) 333 

Ta'yloe i\ Bush (75 Ala. 432) 46, 47, 60 

V. Sandiford (7 Wheat. 14) 420 

Taylor, Ex parte (8 De G. M. & G. 

254) 17 

, (2 Rose 175) 472, 409 

, (18 Ves. 284) 480 



TABLE OF CASES. 



Ixxiii 



Tavlor, Ex parte {'S\r,r\t. 240) 494 

— '-, In re (5 Biss. UU) 544 

0. Beniis (4 Biss. 40(3) 244, 531 

0. Carpenter (2 W. & M. 1, 11 

Paige 292, 2 Saridf. Cli. GO:}, 3 Story 

458) 244 

V. Castle (42 Cal. 367) 432, 556 

V. Cliurcii (8 N. Y. 452, 1 E. D. 

Smith 470) 820,321,322 

V. Cornell (12 S. & R. 243) 145, 149 

V. Davis (3 Beav. 388) 457 

V. Field (15 Ves. 550) 290, 503 

V. Fields (4 Ves. 300) 136, 290, 344, 

430, 475, 503 

V. Glassbrook (3 Stark. 76) 15 

V. Hamlin (2 Bro. C. C. 310) 515 

V. Hayling (1 (>)x 435) 515 

V. Henderson (17 S. & K. 453) 69, 107 

V. Herring ( 10 Bosw. 447) 65 

V. Higgings (3 East 16'.)) 269 

V. UiUyer (3 Blackf. 43.3) 162, 172, 173 

V. Hutciiinson (25 Gratt. 536) 524 

I'. Jones (2 Atk. 602) 514 

V. (42 N. H. 25) 117 

V. Kymer (3 B. & Ad. 320) 424, 425 

V. Neate (39 Cli. I). 538) 237 

V. Perkins (26 Wend. 124) 48 

I'. Ragland (42 La. Ann. 120, 8 

So. 467) 201, 202 

>\ Tavlor (2 Murph. 70) 234 

V. TeVme (3 H. & J. 505) 46 

r. Wilson (58 N. H. 465) 116 

V Young (3 Watts 339) 406 

Taylor's Case (1 Browne 73) 150 

Teague v. Hubbard (8 B. & C. 345) 246, 

255, 553 

r. (1 M. &R. 369) 553 

Tebbetts v. Dearborn (74 Me. 392) 204 
Teed v. Elwortliy (12 East 210) 22 

V. (14 East 210) 109 

Teller v. jNIuir (2 Penn. 548) 164 

Temperton v. Russell (37 Sol. Jour. 

423) 236 

Temple v. Seaver (11 Cush. 314) 308, 380 
Tenant v. Elliott (1 B. & P. 3) 269 

Tench v. Roberts (6 Madd. 145) 55 

Tennant, E.r parte (6 Cli. I). 303) 61 

Tennessee, Bank of, v. Saffarans (3 

Humph. 597) 174, 184 

Tenney v. Johnson (43 N. H. 144) 476 

V. N. E. Protect. Union (37 Vt. 64) 550 

Terrell v. Goddard (18 Ga. 664) 297, 384 

V. Hurst (76 Ala. 588) 146 

V. Pichards (N. & McC. 20) 6, 257 

V. RowIand(86Ky.67,4S.W.825) 201 

Terry v. Butler (43 Barb. 395) 477 

V. Carter (25 Miss. 168) 259 

Tevis V. Tevis (24 Mo. 535) 186, 187 

Te.xas & St. L. R. R. v. McCaughey 

(62Te.x. 271) 334 

Texiere v. Da Costa (Coll. Part. 354) 295 
Thatcher v. Massey (20 S. C. 542) 203 
Thayer v. Augustine (55 Mich. 187, 

20 N. W. 898) 62 
V. Buffum (11 Met. 398) 246, 308 



Thayer r. Lane (Walk. Cli. 200) 362, 364 

r. Smith (116 Mass. 363) 172 

Theller v. Such (57 Cal. 447) 438, 439 
Tliicknesse v. Bromilow (2 Cr. & J. 

425) 142, 143, 169 

Thimblethorp v. Hardesty (7 Mod. 

116) 216,257 

Thom V. Smith (21 Wend. 365) 89 

Thomas, Ex jnirte (3 Mont. D. & D. 

40, 2 id. 544) 494 

, In re (17 N. B. R. 54, 8 Biss. 139) 182, 

481 

V. Atherton (10 Ch. D. 185) 148, 523 

t: Elmaker (1 Pars. Cas. 108) 553 

V. Fredericks (10 Q B. 775) 220 

V. Harding (8 Me. 417) 147 

V. Litchfield (Coll. Part. 287) 276 

V. Pennrich (28 Oh. St. 55) 87 

r. Pyke (4 Bibb 418) 257 

V. Shillibeer (1 M. & W. 124) 95, 387, 

415 
V. Stetson (62 la. 537, 17 N. W. 

751) 98 

Thomason v. Frere (10 East 418) 149, 463, 

467, 469 
Thomasson v. Boyd (13 Ala. 419) 18 

Thompson v. Andrews (1 M. & K. 

116) 451 

V. Bowman (6 Wall. 316) 162, 353, 

367 

V. Brown (M. & M. 40) 423 

V. (4 Johns. Ch. 619) 452, 453, 503 

V. Charnock (8 T. R. 139) 219, 220 

y. First Nat. Bank (111 U. S. 

529) 104 

V. Frist (15 Md. 24) 344 

V. Graham (1 Paige 384) 289 

V. Howard (2 Ind. 245) 35, 82 

V. J. D. Morton, The (2 Oh. St. 

26) 271 

V. Ketcham (8 Johns. 189) 310 

V. Lay (4 Esp. 48) 19 

V. Lewis (34 Me. 167) 344, 345 

V. Lowe (HI Ind. 272, 12 N. E. 

476) 136, 247 

V. Percival (5 B. & Ad. 925) 94, 95, 

387, 416, 419, 4«2, 484, 485 

V. Ryan (2 Swanst. 555) 230, 501 

V. Snow (4 Me. 264) 63 

V. Thompson (7 Ves. 473) 269 

V. Walker (40 La. Ann. 676, 4 

So. 881) 512 
V. Wesieyan Newspaper Associa- 
tion 1 19 L.J. C. P. 114) 553 
V. Williamson (7 Bligh N. s. 

432, 5 W. & Sii. 16) 232, 234 

Thomson v. Cook (2 South. 580) 303 

Thorndike v. De Wolf (6 Pick. 120) 54, 

64,66 
Thornton v. Dixon (3 Bro. C. C. 200) 432 

V. Illingworth (2 B. & C. 824) 16, 22 

V. Kerr (6 Ala 823) 107 

V. Lambeth (103 N. C. 86, 9 S. 

E. 432) 90 
V. Proctor (1 Anst. 94) 200, 384 



Ixxiv 



TABLE OF CASES, 



Thorpe, Ex parte (3 Mont. & A. 716) 96, 

99, 175 

V. Jackson (2 Y. & C 553) 330, 444, 

445 
Thrall v. Seward (37 Vt. 573) 378, 427 
Thropp V. Richardson (132 Pa. 399, 

19 .\tl. 218) 254 

Thrupp V. Wilder (2 Esp. 628) 19 

Thurber v. Corbin (51 Barb. 215) 414 

Thurlow r. Gilmore (40 Me. 378) 18 

Thursby v. Lidsrerwood (09 N. ¥.198)378 
Tliurston v. Lloyd (4 Md. 283) 171 

Thwaites v. Kichardson (Peake 16) 164 
Thweatt v. Jones (1 Rand. 328) 269 

Tibbatts v. Tibbatts (6 McLean 80) 55,63 
Tickel V. Short (2 Ves. Sen. 239) 518 

Tidd V. Rines (26 Minn. 201, 2 N. W. 

497) 351 

Tiemann r. MoUiter (71 Mo. 512) 442 

Tilford V. Ramsey (37 Mo. 563) 87, 113 
Tilge V. Brooks (124 Pa. 178, 10 Atl. 

746) 409, 544 

Till's Case (3Neb. 261) 491 

Tillar v. Cook (77 Va. 477) 280, 508 

Tilley v. Phelps (18 Conn. 294) 325 

Tillier v. Whitehead (1 Dall. 269) 146, 

206 

Tillinghast v. Champlin (4 R. I. 173) 302, 

329, 349, 361, 369 

V. Gilmore (22 Atl. 942) 148 

V. Nourse (14 Ga. 641) 160 

Tillotson V. Tillotson (34 Conn. 335) 201, 

354, 524 
Tilson V. Warwick Gas Light Co. (4 

B. & C. 962) 553 

Timrall r. O'Bannon (7 B. Mon. 603) 309 
Tindal v. Bright (Minor 103) 246, 307 
Tinkler v. Walpole (14 P:ast 226) 69 

Tipton V. Nance (4 Ala. 194) 311 

Tirrell v. Jones (30 Cal. 655) 202 

Titus V. Todd (25 N. J. Eq. 458) 95 

Tobey v. McFarlin (115 Mass. 98) 345 
Tobias v. Blin (21 Vt. 544) 45 

Todd V. Jackson (75 Ind. 272) 121 

V. Pennington (21 Atl. 297) 9 

V. Raffertv (30 N. J. Eq. 254) 9, 198, 

512 
Tolman r. Hanrahan (44 Wis. 133) 111 
Tom r. Goodrich (2 Johns. 213) 91, 150 
Tombeckbee Bank ik Dumell (5 Mass. 

56) 381,403 

Tomlin v. Lawrence (3 Moo. & P. 555) 144, 

145 
Tomlinson v. Nelson (49 Wis. 679) 251 
Tompkins v. Tompkins (18 S. C. 1) 435, 

522 
r. Woodford (5 W. Va. 216) 170, 186, 

187 
Toof r. Brewer (3 So. 571) 24, 27 

Tooker's Case (2 Co. 68) 152 

Topliff V. Jackson (12 Gray 565) 415, 519 
Torrell, £'.r /-ar/e (Buck 345) 499 

Torrey r. Buck (1 Green 366) 289 

c. Twombly (57 How. Pr. 149) 248 

Towle V. Harrington (1 Cush. 146) 311 



Towle V. Meserve (38 N. H. 9) 

Towne r. Leach (32 Vt. 747) 

Townsend v. Bogart (11 Abb. Pr. 355) 117 

V. CJoewey (19 Wend. 424) 252, 262 

V. Neall (2 Camp. 190) 

V. Riddle (2 N. H. 448) 

V. Townsend (1 Cox 28) 

Townshend, Kx parte (2 Moll. 242) 

t'. Devaynes (Mont. Part. 96) 

Toulmin v. Copland (3 Y. & C. 625) 



249 

345 



36 
417 
514 

515 

350 
42.5, 



517, 520, 51: 



96 



177 

206 



344 



Tracy v. Pearl (20 Vt. 162) 
Trader's Bank v. Bradner (43 Barb. 

379) 
Tradesmen's Bank v. Astor (11 Wend. 

87) 
Trafford v. Hubbard (15 R. I. 326, 4 

Atl. 762) 

Trafton v. United States (3 Storv 648) 92 
Traphagen v. Burt (67 N. Y. 30") 351 

Travis v. Milne (9 Hare 153) 233 

Tread well r. Brown (43 N. H.290) 345, 346 

I'.Williams (9 Bosw. 049) 139, 368 

Tredwen v. Bourne (6 M. & W. 461) 82 
Trentman v. Swartzell (85 Ind. 443) 332 
Trickett v. Moore (34 Kas. 755, 10 

Pac. 147) 345 

Trimble v. Coons (2 A. K. Marsh. 

375) 149,150,154 

Troughton v. Hunter (18 Beav. 470) 410, 

456 
Troup I'. Haight (Hopk. 239) 515 

Trowbridge v. Cross (117 111. 109,7 

N. E. 347) 350 

V. Cushman (24 Pick. 310) 182, 345 

V. Scudder (11 Cush. 83) 50, 51 

Troy I. «& N. Factory v. Corning (45 

Barb. 231) 

V. Winslow (11 Blatch. 513) 

Trueman, Ex parte (1 Deac. & Ch. 

464 

V. Loder (11 A. & E. 589) 

Truitt V. Baird (12 Kas. 420) 
Trumbo i'. Hamel (29 S. C. 520, 

S. E. 83) 

Tubbs r. Richardson (6 Vt. 442) 303, 304 
Tucker v. Adams (63 N. H. 361) 10 
V. Cole (54 Wis. 639, 11 N. W. 

703) 

V. Moreland (10 Pet. 58) 

V. Oxley (5 Cranch 35) 

V Peaslee (36 N. H. 167) 

Tuckerman r. Newhall (17 Mass. 581) 
Tudor r. White (27 Tex, 584) 
Tuff, In re (19 Q. B. D, 88) 
Tumlin v. Goldsmith (40 Ga. 221) 
Tupper V. Haythorne (Gow 135) 115, 133 
Turbeville v. Ryan (1 Humph. 113) 151 
Turner, Ex parte (4 Deac. & Ch. 169) 489 

V. Bissell (14 Pick 192) 45 

V. Burrows (5 Wend. 541) 318, 319 

V. Duglass (77 Tex. 619, 14 

S. W. 221) ' 135 

V. Jaycox (40 N Y. 470) 182 

V. Major (3 GifE. 442) 237 



433 

445 

520 
114 

258 
8 
4, 480 



118 

16 

446 

89 

143 

407 

497 

69 



TABLE OF CASES. 



Ixxv 



Turner v. Ross (1 R. T. 88) 159, 160 

. Sm.irt (6 15. & C. 603) 157 

r. Turner (5 S. W. 457) 2^3 

Turnipseed v. Goodwin ('J Ala. 372) 214, 

234, 458 
Turton r. Tiirton (42 Cli. D. 128) 242 
Tutt r. Adams (24 Mo. 18G) 171, 172 

V. Laii.l (50 Ga. 338) 202 

Tuttle y. Cooper (5 Pick. 414) 69, 107 

V. ( 10 Pick. 281) 22, 469 

r. Kskri(I^;e (2 Muiif. 230) 150, 152 

Twiss r. iMassey (1 Atk. 07) 491 

Twopenny r. Youn^ (3 H & C. 208) 310 
Twyt'onl o. Trail (7 Sim. <J2) 123 

Tyler v. Scott (45 Vt. 261) 58 

Tylor I'. Taylor (8 Barb. 585) 303, 304 
Tynherg v. Cohen (67 Tex. 220, 2 

S. W. 734) 272 

Tyng (,. Thayer (8 All. 3',)1) 507, 522 

Tyree v. Lyon (07 Ala. 1) 99 

Tyrrell v. \Vaslii)urn (6 All. 466) 553 

Tyson v. Pollock ( 1 Barr 375) 143 



u. 



Uhl V. Bingaman (78 Ind. 365) 404 

r. Harvey (78 Ind. 26) 405 

Uliler V. Browning (4 Dutcli. 79) 172 

r. Semi)le (20 N. J. Eq. 288) 362 

Ulery r. Ginrick (57 111. 531) 82 

Ullman v. Myrick (93 Ala. 532, 8 So. 

410) 134 

Uimer v. Cunningham (2 Me. 118) 317 
Union Bank v. Bank of (Commerce 

(94 III 271) 475,476,487 

V. Day (12 Heisk, 413) 89 

r. Eaton (5 Humpli. 499) 89, 170 

V. Hall (1 Harp. 245) 376, 377 

V. Knapp (3 Pick. 113) 514 

r. Underhill (102 N. Y. 336, 7 

N. E. 293) 98, 99 

United Ins. Co. i'. Scott (1 Johns. 106) 

54, 57, 65 
U. S V. Astley (3 Wash. C. C. 508) 

91, 150, 152 

I'. Bainbridge (1 Mas. 71) 16 

V. Bradbury^ (2 Ware 146) 425 

i: Cuslniian (2 Sumn. 437) 76, 92 

V. Hack (8 Pet. 275) 325 

'•. Jellico Mt. Coal & Coke Co. 

(46 F. R. 432) 
V. Kirkpatrick (9 Wheat. 737) 



568 
421, 
425 
V. Lyman (1 Mas. 505) 91 

V. Thoniasson (4 Biss. 99) 119, 124 

V. Thompson (Gilp. 614) 143 

V. Trans. Missouri Freight 

Assoc. (53 F. K. 440) 560, 566, 568 

V. iJnion Pacific R. R. (98 U. S. 

569) 558 

V. Ward well (5 Mas 82) 425 

U. S. Bank r. Binney (5 Mas. 176) 29, 

36. 114, 212,394,443, 520 

V. Davis (2 Hill 264) 413 



U. S. Express Co. v. Bedbury (34 111. 

459) 333 

Univ. of Cambridge v. Baldwin (5 

M. & W. 580) 315 

Universities of Oxford & Cambridge 

V. Richardson (6 Ves. 706) 216 

Updyke r. Doyle (7 R. I. 446) 427 

Upham V. Hewett (42 Wis. 85) 58 

V. Naylor (9 Mass. 490) 346 

Usborne, A'x jjarte (1 Glyn. & J. 358) 

494, 495 
Usher v. Dauncey (4 Camp. 97) 180, 380 



Vail V. Winterstein (53 N. W. 932) 23 
Valentine r Ford (2 Browne 193) 23 

V. Hickle (39 Oh. St. 19) 90 

V. Wysor (123 Ind. 47, 23 N. E. 

1076) 435, 438, 512 

Vallett V. Parker (6 Wend. 615) 169, 

171, 180 
Van Aken v. Clark (82 la. 256, 48 

N. W. 73) 364 

Van Alstyne ;.'. Cook (25 N. Y. 489) 542 
Van Amringe v. Ellmaker (4 Barr 

281) 260, 262, 265, 508 

Van Brunt v. Matlier (48 la. 503) 84 

Vance v Blair (18 Oh. 532) 210, 259 

r. Campbell (8 Humph. 524) 82 

Vanderburgh v. Hull (20 Wend. 70) 

45,60 
Vanderhurst v. De Witt (95 Cal. 57, 

30 Pac. 94) 69 

Van Deusen v. Blum (18 Pick 229) 150, 

155 
Vandike v. Rosskane (67 Pa 330) 538 
Vanduzer r. McMillan (37 Ga. 299) 523 
Van Dyke v. Seelye (52 N. W. 215) 83 
Van Eps v. Dillage (0 Barb. 244) 
Van Epps v. Van Deusen (4 Paige 

64) 
Van heath v. Turner (Winch 24) 
Van Horn v. Corcoran (127 Pa. 255, 

18 Atl. 16) 

Van Ingen v. Whitman (62 N. Y. 513) 538 
Van Keuren v. Parmalee (2 N. Y. 

525) 140, 160, 163 

Vann v. Barnett (2 Bro. C. C. 158) 517 
Van Ness v. Forrest (8 Cranch 30) 76, 

256, 265 
-^ V. Van Ness (32 N. J. Eq. 669) 199 
Vannoy v. Klein (122 Ind. 416, 23 

N. E. 526) 69 

Van Ostrand v. Reed (1 Wend. 424) 483 
Van Reimsdvk v. Kane (1 Gall. 630) 69 
Van Sandau'y. Moore (1 Russ. 464) 209, 
394, 396, 397, 510 
Van Scoter v. Lefferts (11 Barb. 140) 136 
Van Slvck v. Skinner (41 Mich. 186, 

1 N. W. 971) 369 

Van Staden v. Kline (64 la. 180, 20 

N. W. 3) 350, 364 

Van Valen v. Russell (13 Barb. 593) 76 



95 



479 

2 

537 



Ixxvi 



TABLE OF CASES. 



Van Valkenburgh v. Bradley (2 la. 

108) 
Van Winkle v. Ketclium (3 Cai. 323) 
Vanzaiit r Kay (2 Humph. 106) 
Varner v. Nobleborough (2 Me 121) 
Varner's Appeal (16 All. U8, 2Monag. 

228) 
Vassar v. Camp (14 Barb. 356) 
Veal V. Keely Co. (86 Ga. 130, 12 S. E. 

297) 
Veale v. Hassan (3 McC 278) 
Venning v. Leckie (13 East 7) 
Vent )'. Osgood (19 Pick. 572) 
Venus, The (8 Cranch 253) 309, 

Vere, Ex jiarte (19 Ves. 93, 1 Rose 

281) 
c. Ashby (10 B. & C. 288) 



12, 
170, 
Vergennes, Bank of, v. Cameron (7 

Barb 143) 163, 180, 

Vermillion v. Bailey (27 111. 230) 
Vernon r. Brunson (25 Atl. 511) 

f. Hallam (34 Ch. 1). 748) 237, 

V. Jt-fferys (2 Stra. 114(1) 316, 

V. Manhattan Co. (17 Wend. 524, 

22 Wend. 183) 180, 405, 408, 
V Vawdrv (2Atk. 1 19, 2 Kq. Cas. 

Abr. 8, Barn. Cli. 280) 611,514, 
Vesey v. Mantel! (9 M. & W. 323) 
Vetterlin r. Barnes (0 F. R 693) 
Vez V. Emerv (5 Ves 144) 
Vibbard v Roderick (51 Barb C16) 
Vicary's Case (Bac. Abr. Eachnce 

623) 
Vice V. Anson (7 B. & C 409) 6, 

■ V. Fleming (1 Y. & J. 227) 79, 

383, 387, 
Vigers V. Sainet (13 La. 300) 
Villa V. Jonte (17 La Ann. 9) 6, 

Vinal Burrill (16 Tick. 401) 
Vincent v. Martin (79 Ala 540) 432, 

Viner v. Cadel (3 Esp. 90) 
Voorhees v. Wait (3 Green 343) 
Vose r. Grant (15 Mass. 521) 
Vosper V. Kramer (31 N. J. Eq. 420) 
VuUiamy v. Noble (3 Mer. 614) 399, 
446, 447, 467, 



381 
16 
69 

483 

512 
13 

98 
160 
257 

16 
310 

467 
75, 
430 

184 
508 
537 
239 
469 

412 

515 
257 
378 
453 
47 

164 
104 

,80, 
402 
549 
336 
162 

433, 
451 
503 
20 
269 
332 

432, 
482 



W. 

Waddell i'. Cook (2 Hill 47) 343 

Wade V. Jenkins (2 Giff. 509) 442 

?;. Pratt (12 Heisk. 231) 203 

Wadhams v. Page (1 Wash. St. 420, 

25 Pac. 462) 418 

Wadley v. Jones (55 Ga. 329) 266 

Wadsworth v. Manning (4 Md. 69) 68 
Wagner v. Freschl (56 N. H. 495) 168 

V. Wagner (50 Cal. 76) 508 

Wagnon v. Clay (1 A. K. Marsh. 257) 147, 

185 
Wainwriglit v. Waterman (1 Ves. 311) 449 
Wait, In re (IJac. & W. 005) 468, 470, 471 



Wait V. Brewster (31 Vt. 516) 
Waite V Dodges (.34 Vt. 181) 

V. Foster (33 Me. 424) 

r. Tliayer (118 Mass. 473) 

Waithman, Ex parte (2 Mont. 
364) 

V. Miles (1 Stark 181) 

V. (4 Camp. 373) 

Wakeham, In re (13 Q. B. D. 43) 



103 

82 

382 

87 

A 

164, 413 

374, 388 

377 

474 

Waland v. Elkins (1 Stark 272) 66 

Waiburn v. Ingilby (1 My. & K 61) 281, 

549, 652 

Walcott V. Canfield (3 Conn. 198) 147 

Waldeck v. Brande (61 Wis. 679, 21 

N W. 633) 400 

Walden v. Sherburne (15 Johns. 409) 132, 

139, 140, 150, 163, 1G4, 169, 206 

Waldo Bank r. Greely (16 Me. 419) 171 

r. Lunibert (16Me. 416) 180,185, 186 

Walford v De Pienne (2 Ksp. 554) 23 

Walker, Ex pmtf (1 Bose 441) 488, 496 

V. Bean (34 Minn. 427, 26 N W. 

148 

Brown (66 Tex. 556, 1 S. W. 

103, 104 

Grain (17 Barb. 119) 550 

])ul)eiTy (1 A. K. Marsh. 189) 163 
" • -- ■ 33Q 

211 
42, 60 
293, 297, 
300, 301 
16 S. C. 
76) ' ■ 131 

260 
143 
614 



V. Eyth (25 Pa. 216) 
V. Harris (1 Anst. 245) 
V. Hirscli (27 Ch. 1). 460) 
V. House (4 Md. Ch. 39) 

■V. Kee (14 S. C 142, 



Long (2 Browne 125) 

V. McCiilh)cli (4 Me 421) 

V. Symonds (3 Swanst. 64) 

V. Trott (4 Kdw. Ch. 38) 288, 295 

V. Wait (50 Vt. 608) 4, 159, 247, 433 

V. Whipple (58 Mich. 476, 25 

N. W. 472) 392, 393 

Wall V. File (37 Pa 394) 90, 488 

Wallace v. Agry (4 Mas. 3.36) 483 

V. Fairman (4 Watts 378) 92 

V. Fitzsimmons (1 Dall. 248) 386,443 

V. Kelsall (3 B & C. 273) 179 

V. (7 M. & W. 264) 179, 

274 

V. Patterson (2 H. & McH. 463) 468, 

476 
Wallace's Appeal (104 Pa. 569) 
Waller v. Davis (59 la. 103, 12 N. W. 

798) 
Walling V. Burgess (122 Ind. 299, 22 

N. E 419) 
Wallingford v. Burr (17 Neb 137) 
Wallis V. Hirsch (1 C. B. n. s. 416) 

V. Wallace (6 How. Miss. 254) 

V. Wood (7 S. W. 852) 

Wallworth v. Holt (4 My. & C. 619) 



344 

394 

361 
237 
219 
307 
68,69 
281. 



4.57, 510 
Walmsley v. Cooper (3 P. & D. 149) 145 

V. Walmsley (3 J & Lat. 556) 520 

Wain V. Hewes (5 S & R. 468) 437 

Walrath v. Viley (2 Bush 478) 103 



TABLE OF CASES. 



Ixxvii 



Walsh V. Adams (3 Denio 125) 



321, 325, 
343 
471 



525 
146 
160 
150 

22 



V. Kelly (42 Barb. <J8) 

V. McKeen (75 Cal. 519, 17 Pac 

673) 
Walton V. Dodson (3 C. & P. 1G2) 

V. Kohinsoii (5 Ire. 341) 

V. Tusten (40 Miss. 560) 

Waiiisley v. Lindeiiberger (2 Rand 

478) 

Wann v. Kelly (5 F. R. 584) 8 

Want i'. Roese ( I Bing 18) 257, 2G7 

Warbrittoii i\ Cameron (10 Ind. 302) 253 
Ward u. Bodenian (1 Mo. Ap]). 272) 

u. Brampston (3 Lev. 302) 

V. Brigiiam (127 Mas.s. 24) 

V. Dalton (7 C. B. 643) 

y. Gaunt (6 Dner 257) 

V. Jolinson (13 Mass 148) 

V. Leviston (7 Blaekf. 460) 

Morris (4 II. & McH. 330) 



66 

320 

50 

485 

54 

76, 01 

273, 317 

468 

Motter (2 Rob. Va. 536) 76, 91, 

93, 94 

V. Newell (42 Barb. 482) 539, 542 

V. Society of Attorneys (1 Coll. 

379) 551 

V. Tiiompson (1 Newb. Adm. 95; 12, 

55, 102 

r. Tyler (52 Pa. 393) 376 

Warden v. Hughes (3 Wend. 418) 172 
Warder v. Newdigate (11 B. Mon. 174) 179 
Wardwell r. Haight (2 Barb. 549) 408, 411 
Ware v. Clowny (24 Ala. 707) 320 

Warfield r. Booth (33 Md. 63) 236 

Waring ,: Cram (1 Pars. Cas. 522) 438,443 

V. Nat. Marine Bank (74 Md. 

278, 22 Atl. 140) 44, 47 

0. Robinson (1 Hoff. Ch. 524) 155,301 

Warner v. Cunningham (3 Dow 76) 127, 

432 

V. Griswold (8 Wend. 665) 35, 317 

V. Juif (38 Mich. 602) 203 

V. Smith (9 Jur. N. s. 168) 33 

Warren, hi re (Da v. 320) 7, 35, 74, 111, 

183, 349 

V. Ball (37 111. 76) 409 

». Batchelder (15 N. H. 129) 482 

V. Dickson (30 111. 363) 99 

V. Farmer ( 100 Ind. 593) 332, 478 

V. French (6 All. 317) 87 

V. Smitli (9 Jur. n. 8. 168) 523 

V. Taylor (8 Sim. 599) 278 

V. Wheelock (21 Vt. 323) 264 

V. Willis (38 Tex. 225) 337 

Warriner v. Mitchell ( 128 Pa. 153, 18 

Atl. 337) 182 

Warring v. Hill (89 Ind. 497) 254 

Warwick v Bruce (2 M. & S. 205) 20 

Washburn r. Bank of Bellows Falls 

(19 Vt. 278) 325, 327, 328, 330, 337, 338 

V. Goodman (17 Pick. 519) 380, 383, 

384, 399, 432, 436, 438, 443, 446 

V. Pond (2 AH. 474) 95 

Watchman, The (1 Ware 232) 468 

Waterer v. Waterer (L. R. 15 Eq. 402) 354 



Waters v. Taylor (15 Ves. 10) 280, 293, 
295, 296, 297, 298, 508, 510 

V. Taylor (2 Ves. & B. 299) 342, 371, 

391, 455, 456, 457, 458, 459 

V. Tompkins (2 C M. & R. 723) 158, 

421 
Watertown, Bank of, v. Landon (45 

N. Y. 410) 49, 51 

Watkins, Ex parte (1 Mont. & McA. 

57) 490,491,498 

V. Hill (8 Pick. 522) 483 

Watkinson v. Bank of Penn. (4 Whart. 

432) 403, 406, 413 

Watney v. Wells (L. R. 2 Ch. 250) 202, 

454, 527 
Watson, Ex parte (16 Ves. 265) 21 

, (19 Ves. 459) 30, 32, 40, 77, 109, 

271, 498 

, (2 Ves. & B. 414) 123 

, (4 Madd. 477, Buck 449, 

492) 472, 499 

V. Bourne (10 Mass. 337) 468 

V. Fletcher (7 Gratt. 1) 9, 10, 269 

V. Hinchman (42 Mich. 27, 3 

N. W. 236) 119 

V. Miller (55 Tex. 289) 333 

V. Murray (23 N. J. Eq. 257) 9 

V. Owens (1 Rich. Ill) 76 

V. Sheath (4 Madd. 477) 471 

V. Taylor (2 Ves. & B. 299) 475 

V. Wells (5 Conn. 468) 118. 165, 413 

V. Woodman (L. R. 20 Eq. 721) 159 

Watt V. Kirby (15 111. 200) 88 

Watts 0. Adler (130 N. Y. 646, 29 N. 

E. 131) 508 

r. Brook (3 Ves. 612) 9 

V. Patton (66 Miss. 54, 5 So. 628) 196 

V. Rice (75 Ala. 289) 321, 333, 3-34 

V. Say re (76 Ala. 397) 347 

Waugh V. Austen (3 T. R. 437) 469 

V. Carringer (1 Yerg. 31) 91 

V. Carver (2 H. Bl. 235) 30, 35, .39, 

40, 46, 64, 76, 77, 79, 2.59. 492 
Way V. Bassett (5 Hare 55) 157, 448 
V. Stebbins (47 Mich. 296, 11 N. 

W. 166) 352 

Waydell v. Luer (5 Hill 448) 94, 483 

r. (3 Den. 410) 95 

Wead V. Richardson (2 Dev. & B. 535) 97 
Weald of Kent Canal Co. v. Robinson 

(5 Taunt. 801) 555 

Weaver v. Ashcroft (50 Tex. 427) 231, 335 

V. Jones (24 Ala. 420) 17 

V. Upton (7 Ired. 458) 201, 248, 258 

V. Tapscott (9 Leigh 424) 94 

V. Weaver (46 N. H. 188) 336, 470 

Webb, In re {2 J. B. Moore -500) 194, 269 

, (4 Sawy. 326) 470 

V. Brooke (3 Taunt. 6) 9 

V. Fordyce (55 la. 11, 7 N. W. 

385) 199 

Webster v. Bray (7 Hare 159) 221, 233, 

234 
V. Lawson (73 Wis. 661, 41 N. 

W. 710) 254 



Ixxviii 



TABLE OF CASES. 



Webster v. Stearns (U N. H. 498) 91, 161 

0. Webster (3 iSwanst. 490) 242, 289, 

387, 441, 440 
Wedderburn v. VVedderburn (22 Beav. 

84) 236, 237, 440, 442, 443, 447, 523 
V. (2 Keen 722, 4 My. & C. 

41) 501,513,514 
Weed V. Kello-'',' (6 McLean 44) 165 
r. Richardson (2 Uev. & B. 535) 172 

V. Small (7 Paige 572) 515 

Weeks v. McClintock (50 Ark. 193, 6 

S. W. 734) 201,212 

— V. Mascoma Rake Co. (58 N. H. 
101) 150, 154 

i: Weeks (5 Ired. Eq. Ill) 304 

Weil V. Jones (70 Mo. 560) 347, 437 

r. Simmons (66 Mo. 617) 24 

Weisiger v. Wood (15 S. E. 597) 23, 24 
Weisman v. Smith (6 Jones Eq. 124) 305 
Weld V Oliver (21 Pick. 559) 303, 304 
Weller v. Baker (2 Wils. 414) 320 

Wells V. Brown (S3 Ala. 161, 3 So. 
439) 

I'. Carpenter (65 111. 447) 

V. ElUs (68 Cal. 243, 9 Pac. 80) 



30G 
266 
374, 
480 



152 
132 

180 
260 

82 
200 
222 

68 

492 



V. Evans (20 Wend. 251, 22 

Wend. 324) 

V. March (30 N. Y. 344) 

V. Masterman (2 Esp. 731) 

V. Simonds (51 How. Pr. 48) 

-— V. Turner (10 Ind. 133) 

V. Wells ( Ventr. 40) 

Welsh V. Canfield (60 Md 400) 

/'. Speakman (8 W. & S. 257) 

Wendell ;-. Van Rensselaer (1 Jolins 

Ch. 344) 

Wendling v. Jennisch (52 N. W. 341) 526 
Werner v. Leisen (31 Wis. 169) 450 

Wesson v. Washburn Iron Co. ( 13 All. 

95) 361 

West, Ex parte (2 De G. M. & G. 198) 21 

, In re (39 F. R. 203) 478 

V. Citizens' Ins. Co. (27 Oh. St. 1) 235 

V. Randall (2 Mass. 181) 469 

V. Skip (1 Ves. 237) 130, 137, 320, 

436, 465, 468, 475, 500, 524 
West Branch Bank v. Moorehead (5 

W. & S. 542) 
Westcott ('. Price (Wright 220) 

r. Tyson (38 Pa. 389) 

Westerls v. Evertson (1 Wend. 532) 35, 
262, 265, 268 
Western Assur. Co. v. Towle (05 Wis. 

247) 
Western Bank of Scotland v. Needell 

(1 F. & F. 401) 
Western Mass. Ins. Co. v. Riker (10 

Mich. 279) 
Western Stage Co. v. Walker (2 la. 

512) 140, 189, 190 

Weston, Ex parte (12 Met. 1) 182, 314, 

315, 488 
West Point Foundry Assoc, v. Brown 

(3 Edw. Ch. 284) 5 



420 
240 
471 



105 



410 



236 



West Virginia Transp. Co. i'. Oliio 

River Pipe Line Co. (22 W. Va. 617) 507 
Wetmore v. Baker (9 Jolins. 307) 05, 200 
Wetter v. Schlieper (4 E. D. Smith 

707) 135, 295, 297 

Weyer v. Thornburgh (15 Ind. 124) 477 
Wevlan v. Elkins (Holt 227, 1 Stark. 

•2.T2) 124 

Wiialey v. Moody (2 Humph. 495) 184 
Wharton v. Fisiier (2 S. & R. 178) 479 

V. Walker (4 B. & C. 103) 482 

V. Woodburn (4 Dev. & B. 507) 93 

Wiiately v. Manhim (2 Esp. 008) 69 

Wheatley v. Calhoun (12 Leigh 204) ,353 
Wheeler, Ex porle (Buck 25) 05, 494 

V. Arnold (30 Mich. 304) 249 

V. Sage (1 Wall. 518) 204 

V. Rice (8 Cush. 205) 173 

V. Van Wart (9 Sim. 193, 2 Jur. 

252) 371, 373, 374, 394, 396 

Wheelock v. Doolittle (18 Vt. 440) 159, 

160 
Whelen v. Watmough (15 S. & R. 153) 507 
Whetham v. Davey (30 Ch. D. 574) 521 
Whetstone v. Shaw (70 Mo. 575) 260, 268 
WhiUdin v. Bullock (4 W. N. C. 234) 547 
Whipple V. Parker (29 Mich. 370) 550 
Whitaker v. Brown (16 Wend. 509) 88. 89, 
90, 123, 143, 169, 172, 206 
Whitcomb v. Converse (119 Mass. 38) 202, 
222 5'''4 525 

V. Whiting (3 Doug. 652) 'l50,'l57, 

158, 159 
White, In re (1 Ch. D. 514) 444 

;;. Boone (12 S. W. 51) 400 

V. Dougherty (Mart. & Y.309) 481 

V. Eiseman (134 N. Y. 101, 31 N. 

E. 276) 533, 538 

V. Fitzgerald (19 Wis. 480) 302 

V. Gibson (11 Ired. 283) 

V. Hackett (24 Barb. 290) 

V. (20 N. Y. 178) 

V. Hale (3 Pick. 291) 

V. Harlow (5 Gray 403) 

V. Jones (38 111. 159) 

V. (14 La. Ann. 681) 

V. Murphy (3 Rioli. 369) 

V. Osborne (21 Wend. 72) 

v. Phelps (12 N. H. 386) 

r. Reed (124 N, Y. 408, 26 N. E. 

1037) 

V. Toles (7 Ala. 569) 

V. Tudor (24 Tex. 039) 

V. Union Ins. Co. (1 N. & McC. 

559) 399, 500 

V. Woodward (8 B. Mon. 484) 291, 

344 
Whitehead r. Barron (2 M. & R. 248) 426 

V. Cliadwell (2 Duv. 432) 477 

Wiiiteman r. Smith (12 Rich. L. 595) 126 
Whiteright r. Stimpson (2 Barb. 379) 436, 

540 
Whitesides v. Lafferty (3 Humph. 

150) 299 

Whiting V. Furanet (1 Conn. 60) 474 



164 
542 
542 

156, 160 
268 
340 
312 
413 

303, 321 
303 



524 
178 

381 



TABLE OF CASES. 



Ixxix 



VVliitinan v. B. & M. R. R. (3 All 133) 356 

/•. Bowdeii (27 S. C 53, 2 S. E. 

6;J0) 196 

V. Keith (18 Oh. St. 134) 4 

V. Leonard (3 Tick. 117) 414, 458, 

404 

/•. Porter ( 107 Mass. 522) 58, 561 

Whitman v. liohinson (21 Md 30j 208,293 
Wliitiiiore, J'Ji: j/(irtc (3 Deac 305j 42b 
, (.3 Mont. & A. 627j 482, 484, 



485 

173 

264 

18 

69, 107 

53,60 

316 



y. Adams (17 la, 567) 

Whitney v. Dean (5 N. II. 249) 
ij. Dutcli (14 Mass. 457j 

r. Ferris (10 Johns. 66j 

ij. Ludington (17 Wis. 140) 

f. McKechnie (1 Bosw. 427) 

r. Reese (11 Minn. 138) 160 

r. Sterling ( 14 Johns. 215) 69 

Whiltaker v. Howe (3 Beav. 389) 241 

Wliittenton Mills v. Upton (10 Gray 

582) 27 

Whittingham v. Hill (Cro. Jac. 494) 16 
Wliittle V. McFarlane (1 Knai)p 312) 200 
Wliitton V. Hulbert (Freem. Cli. 231) 131 

V. Smith (Freem. Ch. 231) 371 

Whitwell /'. Warner (20 Vt. 425) 375 

Whitworth r. Hams (40 Miss. 483) 279 
Wiivwall c. Champion (2 Stra. 1083) 16 
Wic-kliam ». Davis (24 Minn. 167) 344 

r. Wickham (2 Kay & J. 478) 424 

Widdifield V. Widdifield (2 Binn. 245) 6 
Wiegand v. Copeland [U F. R. 118) 352, 

360, 366 
Wiesenfeld v. Stevens (15 S. C. 554 1 351 
Wigfield V. Potter (45 L T. Rep. 612) 557, 

561 
Wiggin V. Cummings (8 All. 153) 249, 256 

y. Goodwin (63 Me. 389) 136, 509 

0. Tudor (23 Pick. 444) 143, 144 

Wiggins V. Hammond (1 Ma 121) 88 

Wightman v. Tovvnroe (1 M. & S. 412) 65, 

452, 503 

Wilby V. Phinney(15 Mass. 116) 261, 263, 

267, 384, 446 

Wilcox V. Jackson (7 Col. 521) 132, 135 

V. Kellogg (11 Oiiio 394) 332 

f. Koatli (12 Conn. 550) 19 

—:— V. Singletary ( Wright 420) 149 

Wild V. Dean (3 All 579) 429, 484 

V. Davenport (,48 N. J. L. 129, 7 

295) 46,51,65,451,452 



Atl. 
W^iide V. Jenkins (4 Paige 481) 

Wilder V. Keeler (3 Paige 167) 
Wildes V. Fessenden (4 Met. 12) 



512, 515, 

518 

330, 444 

94,415, 

484 

485 

337, 343 

165 



Wildman, Ex parte (1 Atk. 109) 
Wiles V. Maddox (26 Mo. 77) 
Wiley V. Griswold (41 La. 375) 
Wilkins V. Davis (15 N. B. R. 460) 463, 

466, 469 

• V. Pearce (5 Den 541) 79 

Wilkinson, Ex parte (13 Sim. 475) 495 
c. Candlish (19 L. J. Ex, 166) 82 



Wilkinson t'. Frasier (4 Esp. 182) 
V. Henderson (1 M. & K. 582) 

445, 

V. Jett (7 Leigh 115) 

V. Stafford (1 Ves. Jr. 41) 

V. Tilden (9 F. K. 683) 284, 286, 

V. Torkuigton (2 Y. & C. 726) 

Wilks V. Back (2 East 142) 
Willard V. Decatur (59 N. H. 137) 

(.'. Stone (7 C(jw. 22) 

Willett V. Blaudford (1 Hare 253) 

440, 

V. Brown (65 Mo. 138) 362, 

V. Chambers (Cowp. 814) 37, 

Williams, Ex parte ( 1 1 Ves. 3) 129, 
326, 327, 328, 338, 378, 383, 391, 
464, 465, 475, 490, 493, 494, 

, (Buck 13) 316, 428, 481, 

, (3 Mont. D. & D. 433) 

V. Attenborough (T. & R. 70) 

V. Bank of Michigan (7 Wend. 

542) 

V. Barrett (10 Kas 455) 

» V. Beaumont (10 Bing. 270) 

V. Bingley (2 Vern. 278) 

>\ Bowers (15 Cal. 321) 

V. Brimhall (13 Gray 462) 

V. Butler (35 111. 544) 

V. Farrand (88 Mich. 473, 50 N. 

W. 446) 237, 238, 239, 243, 
r. Fletcher (129 111. 356, 21 N. 

E. 783) 

V. Gage (49 Miss. 777) 327, 

V. Gdchnst (11 N H. 535) 96, 

V. Gillespie (30 W. Va 586, 5 S. 

E. 210) 

V. Gillies (75 N Y. 197) 

V. Gridley (9 Met 482) 

V. Henshaw (11 Pick 81) 252, 

257, 261, 262, 263, 265, 

V. (12 Pick 378) 

r. Hitchings (10 Lea 326) 

0. Hodgson (2 H & J. 474) 91 

93, 154, 164, 

V. Jones (oB.&C 108) 

r. Keats (2 Stark. 290) 107, 

V. Lewis (115 Ind. 45, 17 N. E. 



262) 

— V. Manning (41 How. Pr. 454) 

— V. Moor (11 M. & W. 256) 
V. Rawlinson (3 Bing. 7l) 

— V. Roberts (6 Cold 493) 118, 

— V. Savage Mfg Co. (1 Md. Cli. 
306) 

— V. Shelden (61 Mich. 311, 28 N. 
W. 115) 

— V. Soutter (7 la. 4-35) 

— V. Thomas (6 Esp. 18) 82, 

— V. Thorp (2 Sim. 263) 

— V. Walbridge (3 Wend. 415) 172, 

— V. Walshy (4 Esp. 220) 

— ('. Whedon (109 N. Y. 333, 16 N. 
E 365) 



60 
330 
482 

60 
453 
510 
210 
183 
293 

20 
200, 
523 
363 
116, 
532 
136, 
434, 
500 
483 

4r4 

34 

549 

97 

320 

286 

402 

97 

5 

244 

61 
345 
172 

135 

84 
161 
255 
522 
522 
144 

,92, 

508 

12 

403, 
407 

165 
163 
16 
425 
135 

515 

350 
46 
169 
495 
184 
150 

136 



Ixxx 



TABLE OF CASES. 



Williams v. Williams (2 Swanst. 253, 

1 Wils. Vh 478) 

V. Wilson (-1 Sandf. Ch. 379) 

241, 290, •2!)7, 
Williamson v. Barbour (9 Ch. D. 521)) 

u. Fox (38 Pa. 214) 

V. Havcock (11 la. 40) 

V. Johnson (1 li. & C 14G) 111, 

182, 

V. McGinnis(ll B. Mon 74) 12(5, 

V. Naylor (3 Y. & C. 208) 

V. Wilson (I Bland 418) 297, 

300, bOl, 391, 432,456, 
Willings V. Consoqua (1 Pet C C. 

301) 76,93, 

Willis I'. De Castro (4 C. B n s. 21G) 

V. Dvson (1 Stark. 164) 80, 387, 

V. Freeman (35 Vt. 44) 345, 350, 

V. Green (5 Hill 232) 

V. Hill (2 Dev. & B. 231) 88, 



V. Jerncsran (2 Atk. 251 ) 512, 

V. Hector (50 F. K. 684) 

V. Sharp (113 N. Y. 686, 21 N 

E. 705) 65, 451, 

Willison V. Patteson (7 Taunt. 439) 
Williston V. Camp (9 Mont. 88, 22 Pac 

501) 
WiUock, Ex parte (2 Rose 892) 
Wills V. Cutler (P.l N. H 405) 

V. Sinimonds(51 How. Pr 48) 

Willson (• Gomparts (11 Johns 193) 

V. Nicholson (61 Ind 241) 

V. Owen (30 Mich. 474) 

Wilniot V The Ouachita Belle (32 La. 

Ann. 607) 
Wilsford r. Wood (1 Esp. 182) 12, 
Wilson, Ex parte (18 Ves 439) 

I'. Bowden (8 Rich. 9) 

V. Campbell (5 Gilm 383) 

V. Comine (2 Johns. 280) 320, 

V Curzon (15 M. & W. 532) 

V. Cutting (4 Moo. & S 268) 

V. Fitchter (3 Stock. 71) 

V. Gibbs (2 Johns 282) 

V. Greenwood (1 Swanst 471) 

294, 295, 297. 298, 299, 378, 383, 
443, 456, 463, 464, 466, 501, 

V. Hirst ( 1 Nev. & M 742) 

V. Hunter (14 Wis. 683) 152, 

V. Johnstone (L. R 16 Eq. 606) 

V. Lassen (15 Cal 116) 454 

V. Lewis (2 M. & G. 197) 

V. (2 So. N. R. 115) 

V. Mower (5 Mass 411) 

V. Reed (3 Johns. 175) 303, 304. 

V. Richards (28 Minn. 337) 

V. Robertson (21 N. Y. 587) 332, 

V. Soper (13 B. Mon. 411) 136, 

328 

V. Stilwell (14 Ohio 464) 

V. Torbert (3 Stew. 296) 

V. Turnman (6 M. & G. 236) 



287 
239, 
440 
118 
405 
283 
113, 
•A2b 
. 144 
451 
298, 
,463 

143 
144 

402 
468, 
476 
38 
160, 
181 
518 
105 

452 
26 

374 

499 

83 

58 

470 

433 

9 

155 
313 
480 
138 
11 
476 
553 
254 
293 
475 
129, 
391, 
.509 
426 
355 
529, 
530 
,507 
97 
176 
145 
321 
168 
490 
327, 
338 
380 
160 
118 



Wilson V. Wallace (8 S. & R. 53) 113, 272 
273,312,498 

V. Waugh (101 Pa. 233) 160, 161, 

389 

V. Whitehead (10 M. & W. 503) 57, 

102 

V. Williams (14 Wend. 146) 96, 99, 

172, 174 
Windham County Bank v. Kendall 

(7 R. I. 77) 170 

Winchester v. Glazier (152 Mass. 316, 

25N. E. 728) 212 

Winget V. Heathcote (4 Y. & C. 187) 298 
Wing Ho ('. Baldwin (70 Cal. 194, 

11 Pac. 565) 228 

Winship v. Bank of U. S. (5 Mas. 

176) 74, 142, 143, 168, 170 

I, (5 Pet. 529) 32, 55, 73, 89, 

114, 131, 140, 142, 143, 168, 170, 206 
Winslow V. Newlan (45 111. 145) 103 
V. Wallace (116 Ind. 317, 17 N. 

E. 923) 477 

Winsor i-. Cutts (7 Me 261) 63 

Winsten v Ewing (1 Ala. 29) 325 

Winter v. Innes (4 Mv. & C. 101) 96, 482 

V. White (1 Br. & B 350) 260 

r. (3 J B. Moo 674) 265 

Wintermute v. Torrent (83 Mich. 555, 

47 N. W 358) 81, 247 

Wintle V. Crowther (1 C & G 316) 75,96, 
97, 142, 170, 176 
Wipperman v. Stacy (80 Wis 345, 50 

N. W. 336) 223 

Wise V. Copley (36 Ga. 508) 97, 99 

I'. Frey (7 Neb. 134) 335 

Wish V. Small (1 Camp. 331) 55, 63 

Wisham v. Lippincott (1 Stock. 353) 336 
Witter i: McNiel (4 111. 433) 151 

V. Richards (10 Conn. 37) 291, 325, 

327, 344, 498 
Withers v. Withers (8 Pet. 359) 520 

Wolbert v. Harris (3 Halst. Ch. 605) 295, 

296, 301 
Wolf V. Mills (56 111. 360) 119 

Wood, Ex parte (1 De G. M. & G. 272) 130 

, (1 De Gex 134) 488, 494 

, (3 Mont. D. & D. 314) 494 

V. Barber (90 N. C. 76) 159, 160 

V. Beath (23 Wis. 254) 55 

V. Bodwell ( 12 Pick. 268) 483 

V. Braddick (1 Taunt. 104) 158, 161, 

165, 376, 385 
V. Brush (72 Cal. 224, 13 Pac. 

627) 251 

;;. Connell (2 Whart. 542) 142 

V. Copper Miners' Co. (17 C. B. 

561) 220 

V. Dodgson (2 M. & S. 195) 472, 473. 

499 

V. Dummer (3 Mas. 312) 436 

V. Erie Ry. (72 N. Y. 196) 228 

V. O'Kelley (8 Cush. 406) 273, 817 

V. Pennell (15 Me. 52) 77, 104 

V. Rutland & A. Ins. Co (31 Vt. 

552) 235, 312, 313 



TABLE OF CASES. 



Ixxxi 



Wood 0. Scoles (L. R. 1 Ch. 3G9) 203, 519 

u. Slieplierd (2 Pat. & II. 442) i;J2, 

148, 149 

V. Vallette (7 Oh. St. 122) 55 

Woodbridge v. Swann (4 B. & Ad. 

633) 471 

V. Wilkins (3 How. Miss. 360) 349 

Wooddrop v. Wards (3 Dcsaus. 203) 327, 

500 
Woodford v. Downer (13 Vt. 522) 376 
Woodgate, Ex parte (2 Mont. D. & D. 

391) 494 

Woodling r. Knickerbocker (31 Minn. 

208, 17 N. W. 387) 125 

Wooiimansie ''. Holcomb (34 Kas. 35, 

7 Puc 003) 331, 332 

Woodruff V. King (47 Wis. 261, 2 

N. W. 4.52) 1.34 
V. Scaife (83 Ala. 152, 3 So. 311) 83 

V. Webb (32 Ark. 612) 203 

Woods *•. Wilder (43 N. Y. 164) 26 

Woodward, Ex parte (3 Mont. & A. 

232) 448 

, In re (4 Johns. 289) 16 

V. Cowing (41 Me. 1) 52 

V. (ijles (2 Vern. 110) 224 

u. Ntwhall (1 Pick. 500) 22 

V. Schatzell (3 Johns. Ch. 412) 288 

V. Winsidp (12 Pick. 430) 147 

Woodworth r. Bennett (43 N. Y. 273) 9 

V. Downer (13 Vt. 522) 162 

V. Fuller (24 111. 109) 307 

Wooley V. Batte (2 C. & P. 417) 2()7 

V. Kelly (1 B. & C. 68) 336, 414 

Worcester Corn Exchange Co., In re 

(4 I)e G. M. & (;. 180) 52, 78, 82, 118, 552 
Word r. Word (90 Ala. 81, 7 So. 412) 293 
Worniley r. Wormley (8 Wheat. 421) 514 
Worrall v. Munn (5 N. Y. 221) 151, 153 
Worsley v. De Mattos (1 Burr. 467) 493 
Worts V. Pern (3 Bro. P. C. 558j 282 

Wray v. Hutchinson (2M. & K. 235) 284, 

455, 458 

V. Milestone (5 M. & W. 21) 260, 262, 

265 
Wren r. Kirton (8 Ves. 502) 34 

Wrexham v. Hudleston (1 Swanst. 

514) 127, 458, 459 
Wright V. Cobleigh (21 N. H. 339) 249 
V. Cumpsty (41 Pa. 102) 253, 260 

i\ Davidson (13 Minn. 449) 55 

r. Hooker ( 10 N. Y. 51) 111 

V. Hunter (1 East 20) 2-53 

V. (5 Ves. 792) 254,267,276 

V. Michie (6 Gratt. 354) 252, 257 

V. Pratt (31 Wis. 99) 491 

V. Pulhani (2 Chit. 121) 403, 406, 412 

V. Hussell (13 Wils. 6-32) 314 

r. Ward (65 Cal. 525, 4 Pae. 534) 344 

V. Williamson (2 Penn. 978) 312, 316 

r. Wright (2 Desaus. 244) 23 

Wrightson r. Pullam (1 Stark. 375) 381, 

403, 406, 412 



Wyatt V. Hodson (8 Bing. 309) 157, 158 
Wycoff V. Purnell (10 la. 332) 253, 262 



Y. 



Yale V. Eames (1 Met. 486) 382, 443 

V. Yale (13 Conn. 185) 179 

Yallop, Ex parte (15 Ves. 60) 490, 493 
Yandes v. Lefavour (2 Blackf. 371) 144, 

160 
Yarbrough v. Bush (69 Ala. 170) 24, 333 
Yarneil v. Anderson (14 Mo. 619) 96, 417, 

419, 482 
Yates V. Finn (13 Ch. D. 839) 213, 439 

V. Lyon (61 N. Y. 344) 17 

Yeager v. Wallace (57 Pa. 365) 78, 188, 

302 
Yeatman ;•. Woods (6 Yerg. 20) 362 

Yeoman v. Lasley (40 Oh. St. 190) 35, 59 
Yetzer v. Applegate (50 N. W. 66) 195 
Yonge, Ex parte (3 Ves. & B. 34) 199, 471, 
489, 497, 498 

I,. (2 Rose 40) 497, 498 

York V. Clemens (41 la. 93) 7, 350 

V. Eaton (2 Freem. 23) 436 

York & N. M. Ry. v. Hudson (16 

Beav. 485) 384 

York Co. Bank, Appeal of (32 Pa. 

446) 327 

Y'orkshire Banking Co. v Beatson (5 

C. P. D. 109) 114 

Young, Ex parte (2 Ves. & B. 242) 66, 326 

, (Buck 179. 3 Madd. 124) 467 

, (2 Rose 40) 

V. Axtell (2 H. Bl. 243) 



V. Brick (3 N. J. L. 66.3) 

V. Clapp (32 N. E. 187) 

V. Goodson (2 Russ. 255) 

v. Hoglan (.52 Cal. 466) 

V. Hunter (4 Taunt. 582) 75, 



471, 474 
64, 76, 104, 
107 
249, 260 
331 
145 
508 
101, 



102, 426 

r. Keighly (15 Ves. 557) 134, 436, 

475, 554, 556 

V. Smith (25 Mo. 341) 163 

r. Tibbetts (32 Wis. 79) 407 

V. Timmins (1 Cr. & J. 331) 401 

V. Wheeler (34 F. R. 98) 6 

Y^ounglove v. Liebhardt (13 Neb. 557, 
14 N. W. 526) 248 



Zimmerman v. Chambers (79 Wis. 20, 
47 N. W. 947) 393 

V. Erhard (83 N. Y, 74) 228 

Zell's Appeal (126 Pa. 329, 17 Atl. 

647) 202 

Zent V. Heart (8 Barr 337 ) 1 59 

Zollar V. Janvrin (47 N. H. 324) 403, 407 
Zuel V. Bowen (78 111. 234) 170 



/ 



A TREATISE 



ON THE 



LAW OF PARTNERSHIP. 



THE LAW OF PARTNERSHIP. 



CHAPTER I. 

DEFINITION AND NATURE OF A PARTNERSHIP. 

§ 1. Definition of Partnership. — Partnership is a legal entity 
formed by the association of two or more persons for the purpose 
of carrying on business together and dividing its profits between 
theiu.^ 

The word " firm " is often used synonymously with " partner- 
ship," thougii it might better be restricted to its original meaning, 
the partners or members of the partnership taken collectively. 
As, however, the distinction is not made by the courts it is 
perhaps useless to insist upon it ; and the two words will in the 
following pages be used synonymously.^ 

§ 2. Origin of Law of Partnership. — The law of partnership, as 
it exists in England and in this country, constitutes a system liy 
itself. Its origin cannot be found, excepting in the law mer- 
chant, which is itself only the custom of merchants, adopted, 
systematized, and enforced by the courts, (a) 

(a) Thus the peculiar doctrines of the of the business), that the act of one 

law of partnership, which most distinguish partner, in reference to a partnership 

it from the common law, as that there is matter, is the act of all, are declared hy 

no survivorship of property or rights be- the eailiest authorities to be "per lectern 

tween partners (except for the settlement mercatoriam," and "pro benejicio com- 

1 This is the definition of the Civil Code of New York, with the addition of the 
worls " a legal entity formed by." It was criticised by Jessel, M. R., in Pooley v. 
Driver, 5 Ch. D. 458, on the ground that it allows the formation of a partnership for 
an illegal purpose. But an association for an illegal business would evidently be a 
partnership, though an illegal one. See post, § 8, note. A collection of the definitions 
which have been proposed for a partnership may be found in 1 Lindl. Part. p. 1 . 

2 There can be no firm without at least two partners. Therefore in a State where 
an action is allowed to be brought against a partnershi]) in the firm name the action 
altogether fails if the business, though carried on under the name of A. & Co., is 
owned by A. alone, Stirling v. Heintzman, 42 Mich. 449, 4 N. W, 165. 

1 



2 THE LAW OF PARTNERSHIP. [CH. I. 

Commercial partnerships were known to the Romans ; and 
their hiw recognized and regulated tliem. So far as commerce 
was then conducted in a similar manner and upon similar prin- 
ciples as at present, the rules of the Roman law are applicable 
now ; for that law, quite as much as our own, applied to tlie 
transactions of merchants a law founded upon their usages ; and 
to this extent we may regard the Roman civil law of partnership 
as similar to our own. As a very large part of commercial busi- 
ness consists in forming and executing contracts whicli must be 
governed by the law of contracts generally, and this is a part of 
the common law, many of the principles applicable to partnership 
are the same as those which regulate the common transactions of 
men ; and so far the law of partnership may be said to be founded 
upon the common law. We doubt, however, whether anything 
is gained by references of this kind. The supposed analogies 
between the law of partnersliip and other branches of the law, if 
they sometimes afford ample illustration, lead to confusion and 
error when we attempt to carry them far; or, by their help, 
deduce from other departments of the law a rule which may 
control and determine a question of partnership. 

§ 3. Mercantile Idea of Partnership. — That a partnership is an 
entity, distinct from the partners, is the view of the business world 
everywhere. Merchants and accountants alike look upon a firm 
as a body which has independent rights, as well against its mem- 
bers as against strangers. Accountants credit the partners with 
advances on the books of the firm, and debit them with over- 
drafts, the accounts being kept between each partner individually 
and the firm, not between the partners. 

Since the law of partnership is founded upon the law merchant, 
that is, the custom of merchants, we should expect to find the 
mercantile conception of a partnership recognized by the law. 
And such is the state of the law in those European countries 
where the civil law is in force, as for instance in Scotland,' and 
in Louisiana, where the Code is founded on the civil law.^ We 

mnrcii." Jenkins, 160 ; Co. Litt. 182 a ; are two joint trailers, and one accepts a 

2 Brown, 99 ; Jeffreys v. Small, 1 Vernon, bill drawji on botli for him and partner, 

217; Leaker. Craddock, 3 P. Wms. 158; it binds both if it concerns the trade; 

Vanheath v. Tnrner, Winch. 24 ; Molloy, otherwise, if it concerns the acceptor only 

b. 2, ch. 10, § 19. The case of Pinckney in a distinct interest and respect." v. 

V. Hall is thus reported in 1 Salk. 126 : Laytield, 1 Salk. 292. See also 2 Rol. 

"By the custom of England, where there Abr. 702, 370 ; Anon., Styles, 370 A. 

J Bell, Principles, § 357. 

2 Succession of Pilcher, 39 La Ann. 362, 1 So. 929 ; Liverpool, B. & R. P. Nav. Co. 
V. Agar, 14 F. R. 615, 4 Woods, 20L 



§ 4.] DEFINITION AND NATURE OP A PARTNERSHIP. 3 

have seen that the civil law of partnership was founded, equally 
with our own, upon the custom of merchants, and there should 
therefore be no difference in this respect between the rules of the 
civil law and those of our own. 

§ 4. How far recognized by Law. — In our law, however, the 
partnership has not been clearly recognized as an entity. In an 
action at law, at least, the partners alone are recognized as parties 
in interest, as owners of the firm property, and as principals in the 
firm business. Yet even at law certain doctrines are held which 
can be consistently explained only by recognizing the firm as 
an entity. The courts of equity show more recognition of the 
true character of a partnership ; but even in equity this has not 
been made clear until recently. There is now, however, a strong 
disposition on the part of the courts to recognize the mercantile 
doctrine. 

Perhaps the earliest statement of the doctrine was by Horn- 
blower, C. J., in Curtis v. Hollingshead.^ "The firm is the 
contracting party, not the individuals composing the firm ; the 
credit is given to the firm; the partnership, the ideal person, 
formed by the union of interest, is the legal debtor. A partner- 
ship is considered in law as an artificial person^ or heing^ distinct 
from the individuals composing it." 

The doctrine was well stated by Jessel, M. R., in Pooley v. 
Driver.2 " Everybody knows that partnership is a sort of agency, 
but a very peculiar one. You cannot grasp the notion of agency, 
properly speaking, unless you grasp the notion of the existence of 
the firm as a separate entity from the existence of the partners ; 
a notion which was well grasped by the old Roman lawyers, and 
which was partly understood in the courts of equity before it was 
part of the whole law of the land, as it is now. But when you 
get that idea clearly, you will see at once what sort of agency it 
is. It is the one person acting on behalf of the firm." ^ 

1 2 Green (N. J.) Law 403, 410 (1834). See Faulkner v. Whitaker, 3 Green Law 
438, 439. 

' 5 Ch. D. 458, 476. 

8 Language as clear as this has been used to describe a firm by some of the ablest 
judges in this country. " When one joins a partnership he makes himself a part of 
an entity already existing, which has acquired certain property and business, and in 
acquiring it has incun-ed certain indebtedness. The firm owns the property, holds the 
business, and owes the debts." Brewer, J., in Cross v. Burlington Nat. Bank, 17 Kas. 
336, 340. 

' ' The partnership for most legal purposes is a distinct entity, — having its own 
property, capable of contracting separate debts, having the right to sue in equity its 
several members, and to be protected against their conduct to the same extent that it 
might be against the conduct of strangers." Cooley, J., in Robertson v, Corsett, 39 
Mich. 777, 784. 



4 THE LAW OF PARTNERSHIP. [CH. I. 

§ 5, Relation between Partners and Partnership. — The relation 
between the partners and the firm is that of agent to principal; 
and the firm property, the legal title to which is held by the part- 
ners, is in trust for the firm. Each partner, in doing an act 
which is within the scope of his agency, is acting therefore for the 
firm. It is ordinarily said that the partners are agents for each 
other ; each partner when carrying on business being principal as 
to his own interest and agent as to the interests of his partners. 
A more exact conception of the transaction is however that 
already indicated : that each partner acts not as principal on his 
own account and also, in the same transaction, as agent for his 
copartners ; but that he acts in the single capacity of agent for 
the partnership, and neither for himself nor for his copartners. 

"A partnership, or joint stock company, is just as distinct and palpable an entity 
in the idea of the law, as distinguished from the individuals composing it, as is a 
corporation ; and can contract as an individualized and unified party, with an individ- 
ual person who is a member thereof, as effectually as a corporation can contract with 
one of its stockholders. The obligation and the liability, inter partes, are the same in 
the one case as the other. The only practical difference is a technical one, having 
reference to the forum and form of remedy." Barrett, J., in Walker v. Wait, 50 Vt. 
668, 676. See also Forsyth v. Woods, 11 Wall. 484 ; Goldsmith v. Eichold, 94 Ala. 
116, 10 So. 80 ; In re Dennery, 89 Cal. 101, 26 Pac. 639 ; Bracken v. Dillon, 64 Ga. 
243, 251 ; Drucker v. Wellhouse, 82 Ga. 129, 8 S. E. 40 ; Henry v. Anderson, 77 Ind. 
361 ; Paige v. Paige, 71 la. 318, 32 N. W. 360; Roop v. Herron, 15 Neb. 73, 80; 
Whitman v. Keith, 18 Oh. St. 134, 144 ; Trumbo v. Hamel, 29 S. C. 520, 8 S. E. 83. 
In some of these cases a statute provided that the partnership might sue and be sued 
by its name. This statute, however, since it applied only to the remedy, could not 
change the nature of a partnership. If, as is everywhere decided, it is an entity in 
the eye of the law after such a statute, it must really have been so before the passage 
of the statute. 



§«■] 



HOW PARTNERSHIP MAY BE MADE. 



CHAPTER II. 



HOW PARTNERSHIP MAY BE MADE. 



§ 6. Partnership by Express Contract. — There must be a lawful 
aud valid agreement to enter into partnership ; and this contract 
must be executed. And therefore courts do not declare persons 
to be partners under an agreement of partnership, without proof 
that some joint transactions have been undertaken in accordance 
with it, or some joint benefit received, (a) But a partnership may 
be made by an agent ; and, if by one not then an agent, a sub- 
sequent ratification mai<es the partnership effectual, {aa) Xot 
unt'requently in England, and more rarely here, the contract is 
sealed ; but this can seldom be useful, and is never necessary to 
its validity. Usually the contract is in writing; and should 
always be so, as a matter of reasonable precaution. But writing 



{a) Metcalf v. Royal Exch. Ass. Co., 
Barnard. 343 ; Heylioe v. Barge, 9 C. B. 
431 ; W'est Point Foundry Association v. 
Brown, 3 Edw. Ch. 284 ; Atkins v. Hunt, 
14 N. H. 205 ; Goddard v. Pratt, 16 Pick. 
412. If two or more persons, who agree 
to enter into partnership, stipulate each to 
furnish a certain amount of capital, com- 
pliance with this stipulation may be a 
condition precedent, without the fulfilment 
of whicdi no partnership will exist, unless 
it be waived by the consent of both parties. 
McGraw v. Pulling, 1 Freem. Ch. 357; 
Bird V. Hamilton, Walker Ch. 361. 
Where E. advanced money to W., to 
enable him to perfect and realize a certain 
invention, and W., besides expressly promis- 
ing to repay the advance, agreed that, if the 
invention should be one of public or pri- 
vate use, W. should have one-third of the 
profits thereof ; it was held that E. might 
sue W. for the sum so advanced. Elgie v. 
Webster, 5 M. & W. 518. So in Burnell 
r. Hunt, 5 Jur. 650, where B. was to 
receive from A., for superintending the 
latter's manufactory, half the profits as 
soon as any accrued, and, till that time, 
21. per week. No profits having ever 



arisen, the court held that there could be 
no partnership before that time. If a man 
make an agreement for a partnership, but 
expressly reserve for himself for twelve 
months the option of determining finally 
whether or not he will be a partner, he is 
not one until he exercises that option and 
declares himself such. Gabriel v. Evill, 
9 M. & W. 2H7. See Chapman v. AVilson, 
1 Rob. (Va.) 267 ; President, Directors, & 
Co. of the Adams Bank v. Rice, 2 Allen, 
480 ; Andrews v. Garstin, 10 C. B. x. s. 
444 ; Lascaridi v. Gurney, 11 C. B. x. s. 
890 ; Moody v. Rathburn, 7 Minn. 89 ; 
Cook V. Carpenter, 34 Yt. 121. W^here 
one permits another to bu}' stock on their 
joint account, in anticipation of forming a 
I)artnership, and immediately afterwards 
repudiates the agreement to become a 
partner, he is not entitled to any of the 
property bought, nor are his individual 
creditors. Rice v. Shuman, 43 Pa. 37. 
See, as to what connection in business 
constitutes a partnership, and the admis- 
sion of new members. Mealier v. Cox, 37 
Ala. 201. 

(aa) Williams v. Butler, 35 111. 544. 



THE LAW OF PARTNERSHIP. 



[CH. II. 



is not essential to render the general agreement, or any of its 
details, valid, (b) And though articles exist, the partnership may 
be proved by parol, if the question is between those who form the 
firm, and a stranger, [hh) 

Whether a partnership exists is a question of fact ; what a 
partnership is, is a question of law. (c) Sometimes the question 
occurs, whether the provisions of a partnership come within the 
requirement of the Statute of Frauds, and must therefore be in 
writing. [According to the weight of authority, a partnership, 
even if formed for the purpose of dealing in land, may be created 
by a verbal agreement : though according to some authorities it 
must be in writing.] (d) 



(li) The true meaning and ajiplication 
of this rule is clearly stated by Tiudal, C. 
J., in Fox V. Clifton, 9 Bing. 117. See 
also Smith v. Tarlton, 2 Barb. Ch. 336. 

(bb) Anderson v. ClaJ', 1 Stark. 405 ; 
Griffin v. Doe, 12 Ala. 783 ; Widdifield v. 
Widdifield, 2 Binn. 245 ; Bounatfe v. 
Fenner, 6 Sm. & M. 212 ; Allen v. Rostain, 
11 S. & R. 362. Otherwise, perhaps, 
where the question of partnership or no 
partnership arises between the partners 
themselves. Cutler v. Thomas, 25 Vt. 73. 
See Buffurn v. Buffum, 49 Me. 108, and 
Villa V. Jonte, 17 La. Ann. 9. 

(c) Gabriel v. Evill, Car. & M. 358 ; 
Drake v. Elwyn, 1 Caines, 184 ; Beechani 
V. Dodd, 3 Harr. (Del.) 485; Doggett v. 
Jordan, 2 Fla. 541 ; Everett v. Chapman, 
6 Conn. 347 ; Terrell v. Richards, 1 N. & 
McC. 20. See Dwinell v. Stone, 30 Me. 
384. 

{d) In Smith v. Burnham, 3 Sumn. 
435, the plaintiff brought his bill in equity, 
alleging an agreement of copartnership 
between himself and the defendant for 
general business purposes, and, among 
others, for the purchase and sale of lands, 
and praying for a general account of the 
affairs of the partnership. The existence 
of the partnership was attempted to be 
proved only by parol. Story, J., held 
that a verbal agreement to become inter- 
ested as ])artners in the purchase and sale 
of lands was a parol contract respecting 
an interest in lands within the Statute of 
Frauds, and therefore void. So in Vice v. 
Anson, 7 B. & C. 409 ; Henderson i'. Hud- 
son, 1 Mnnf. 510. Lefevre's Appeal, 69 
Pa. 123 ; Ebbart's Appeal, 70 Pa. 79. 



[Young V. Wheeler, 34 F. R. 98 ; Larkins 
V. Rhodes, 5 Port. 195 ; Everhart's Appeal, 
106 Pa. 349 ; Raub v. Smith, 61 Mich. 
543, 28 N. W. 676. In Louisiana a writ- 
ten contract of partnership is required by 
the code : Pecot v. Annelin, 21 La. Ann. 
667.] But in Dale v. Hamilton, 5 Hare, 
369, a different view prevailed. In that 
case, the bill of the jilaintiff, a land agent 
and surveyor, alleged a jiarol agreement of 
copartnership with the defendants, who 
■were capitalists, for the sole purpose of 
speculation in lands ; and that, by the 
terms of their agreement, each of the 
parties was to be interested one-third in 
profits and losses. Real estate had confess- 
edly been ac(|uired under some arrangement 
of this sort, which had since greatly risen 
in value. The prayer of the plaintiff was, 
that the affairs of the joint concern might 
be wound up, the lands sold for the mo.sc 
they would fetch, and the proceeds distri- 
buted by the court in accordance with the 
terms of the said contract. The Vice- 
Chancellor (after a statement of the 
question raised) said : " When the prop- 
osition was first advanced by the plaintiff, 
I confess, it appeared to me, that to admit 
the argument to the extent contended for 
would be virtually to repeal the Statute 
of Frauds, or nearly so." But, upon 
examination of the authorities, he felt 
himself bound to hold that the plaintiff 
might first prove by parol the existence of 
the partnership, as an independent fact, 
and, that being established, might then 
show by the same evidence his intej-est in 
the lands, considered as the substratum or 
stock of the partnership. An issue was 



§7.] 



HOW PARTNERSHIP MAY BE MADE. 



It becomes more important, and indeed necessary, that the 
contract should be reduced to writing, in proportion as it is com- 
posed of many articles, and {)rovides in detail for the transaction 
of the business of the firm, or for the rights and duties of the 
partners. Of the effect and construction of written articles we 
shall si)eak particulai'ly hereafter, (f) 

§ 7. Partnership without Express Agreement. — Partnership may 
be formed not only by express agreement, but may grow out of 
transactions or relations in which the word " partnership " is not 
uttered. If there is such a joinder of interests and action as the 
law considers as the equivalent of partnership, or rather, such as 
it regards as constituting partnership, it will give to the persons 



accordingly directed to determine whether 
such ail agreement of copartnersliii) as that 
aUeged ill tlie bill had been made. See 
Caddeck v. Simpson, 2 De G. & J. 52 ; 
Fall River Whaling Co. v. Borden, 10 
Cash. 458 ; Haiipf v. Howard, 3 Jones Eq. 
440, 445. The result of the cases, as well 
as of true reasoning upon the question, 
would seem to be that of the Vice-Chancel- 
lor in Dale v. Hamilton, supra. In re 
Warren, Davies, 320 ; York v. Clemens, 41 
la. 95 ; Scruggs v. Russell, McCah. (Kas.) 
39 ; Julio V. Ingalls, 1 All. 41 ; Sherwood 
V. R. R. Co., 21 Minn. 127 ; Chester v. 
Dickeison, 54 N. Y. 1 ; Smith v. Tarlton, 
2 Barb. Cli. 336 ; Storer v. Flack, 41 Barb. 
1(51 ; Jones v. McMichael, 12 Rich. L. 
176. [In re Ransom, 17 F. R. 331 ; Mc- 
Elroy V. Swope, 47 F. R. 380 ; Coward v. 
Clanton, 79 Cal. 23, 21 Pac. 359 ; Meagher 
V. l{ee<l, 14 Col. 335, 24 Pac. 681 ; Bunnel 
V. Taintor, 4 Conn. 568 ; Holmes v. Mc- 
Ciay, 51 Ind. 358 ; Richards v. Grinnell, 
63 la. 44, 18 N. W. 668 ; Peunybacker v. 
Leary, 65 la. 220, 21 N. W. 575 ; Collins 
V Decker, 70 Me. 23 ; Somerby v. Bun- 
tin, 118 Mass. 279 ; Newell v. Cochran, 
41 Minn. 374, 43 N. W. 84 ; Hirbour v. 
Rtieding, 3 Mont. 13 ; Personette v. Piyme, 
34 X. J. Eq. 26; Flowers. Barnekoff, 20 Ore. 
132, 25 Pac. 370 ; Case v. Seger, 4 Wash. 
St. 492, 30 Pac. 646. See also Allison v. 
Perry, 130 111. 9, 22 N. E. 492 ; Marsh v. 
Davis, 33 Kas. 326, 6 Pac. 612 ; Carr v. 
Leavitt, 54 Mich. 540. In Wisconsin it 
is held that where a partnership is formed 
for another purpose, and the partners agree 
verbally to buy land and take the title in 
the name of one parttier, the other is pre- 



vented by the Statute of Frauds from 
claiming any interest in the land. Bird 
V. Morrison, 12 Wis. 138 ; Clarke o. Mc- 
Aulitle, 81 Wis. 104, 51 N. W. Rep. 83. 

It has been held that a contract of part- 
nership to continue 7iiore than a year is 
within that provision of the Statute of 
Frauds which requires contracts not to be 
performed within a year to be in writing. 
Morris r. Peckhara, 51 Conn. 128 ; Jones 
V. McMichael, 12 Rich. 176. Such a con- 
tract, though not in writing, has, however, 
elsewhere been held valid. McKay v. 
Rutherford, 6 Moo. P. C. 413, 13 Jur. 21 ; 
Smith V. Tarlton, 2 Barb. Ch. 336 ; Jordan 
V. Miller, 75 Va. 442. 

There can be no doubt that the pre- 
vailing view is the better one. The con- 
tract is executed when the partnership 
relation is entered into. All that is done 
after that is done by and for the part- 
nership. If land is purchased it is the 
land of the partnership, and not of the 
individual partners. In short, the only 
action that could be brought for breach of 
the contract would be an action for failure 
to launch the partnership : any cause of 
action arising after the partnership was 
formed would arise out of the partnership 
relation. 

If, however, the contract calls for the 
purchase of land by one party from the 
other before the partnership comes into 
existence it is within the statute. Clancy 
V. Craiiie, 2 Dev. Eq. 363. And a contract 
which called for the entrance into a part- 
nership after the expiration of a year would 
doubtless lie held to be within the statute.] 

(e) Post, § 159 ct scq. 



8 THE LAW OF PARTNERSHIP. [CH. II. 

engaged in it all the rights, and lay upon them all the responsi- 
bilities, and give to third parties dealing with them all the 
remedies, which belong to partnership. Of this we shall treat 
somewhat in the succeeding chapters. 

§ 8. Illegal Partnerships. — That the Contract may be legal, it 
must be formed for a legal purpose. (,y) It is obvious that the 
law — through the courts — cannot protect or enforce what the 
law forbids. Hence a partnership would be deemed illegal, not 
only if it contemplated a business which the law expressly pro- 
hibits, as smuggling, gambling, making counterfeit bills or false 
coin to be used at home, or stealing, but also if it were formed for 
a purpose distinctly opposed to the principles or policy of the law ; 
as, to procure the election of persons to office, or the success of a 
political party, or for marriage brokerage, {h) ^ 

(ij) The English law has at different regulating the jjawnbrokers' trade. See 
periods laid various restrictions upon the Armstrong v. Lewis, 2 C. & JI. 274 ; 
formation of partnerships, some designed Armstrong v. Armstrong, 2 Mylne & K. 
to secure monopolies to one or several 45 ; Gardon r. Slowden, 12 Clark & F. 
large incorporated companies, and which 237. There have also been certain re- 
have since been repealed or greatly modi- strictive statutes, which have been passed 
fied, while others liave aimed at the more rather to protect the revenue of tlie realm 
laudable object of protecting the public than to afford security to the public, 
from the combinations and the delusive Hence it is held, in several cases, that, 
schemes of speculators. Thus the statute though a partnership be formed in disre- 
of 6 Anne, ch. 22, § 9, made it unlawful gard of the provisions of these statutes, 
for a partnership of more than six persons, yet such infringement will not deprive the 
other than the Bank of England, to carry partnership of the right to recover upon 
on banking business. By 6 Geo. 1, ch. 18, their contracts with third jiersons. Hodg- 
§ 12, partnerships were forbidden to engage son v. Temple, 5 Taunt. 181. Johnson v. 
in the business of marine insurance, or to Hudson, 11 East, 180 ; Brown v. Duncan, 
make loans upon bottomry. In like man- 5 B. & C. 93. [See the statutes collected 
ner, by 28 Geo. 3, ch. 53, § 2, partnerships and discussed, 1 Lindley, Part. *94 et seq.] 
of more than five persons for trading in (h) A distinction was formerly made 
lands are made illegal. See further 6 Geo. 1, between contracts of partnership for ob- 
ch. 18, § 18 ; also, 39 & 40 Geo. 3, ch. 99, jects which are viala in se and those for 

^ It is now everywhere acknowledged that the courts will not recognize an illegal 
contract of partnership, either by enforcing performance of the whole contract, Ewing 
V. Osbaldiston, 2 My. & Cr. 53; Durant v. Rhener, 26 Jlinn. 362, 4 N. W. 610; or 
by enforcing the obligation to account. Sykes v. Beadon, 11 Ch. D. 170; Bartle v. 
Coleman, 4 Pet. 184 ; Snell v. Dwight, 120 Mass. 9 ; Dunham v. Presby, 120 Mass. 
285 ; Jackson v. McLean, 100 Mo. 130, 13 S. W. 393 ; Read v. Smith, 60 Tex. 379. 

Some courts however allow a partner in an illegal partnership, after the business 
has been entirely wound up, the right to a share of such proceeds of the business as remain 
in his copartner's hands ; on the more or less clearly recognized principle that there is 
a constructive trust. Sharp v. Taylor, 2 Phillip.s, 801 (criticised adversely in Sykes v. 
Beadon, 11 Ch. D. 170) ; Brook.s v. Martin, 2 Wall. 70 ; Wann v Kelly, 5 F- R. 584 ; 
Attaway v. Third Nat. Bank. 15 Mo. App. 577 ; Pfeuffer v. j\Ialtby, 54 Tex. 454 
{wmble ; but see Kead v. Smith, 60 Tex. 379). See Snell v. Dwight, 120 Mass. 9, 18. 
In Texas the court interferes only if there has been an account stated, and a note given 



§M 



HOW PARTNERSHIP MAY BE MADE. 



§ 9. Partnership must be Voluntary. — The contract of partner- 
ship must be voluntary ; that is, all the partners must consent 

olijects which are only mala prohlbita. It v. Bignold, 5 B. & Aid. 335 ; Mitchell v. 

was held that contracts arising out of the Cockburne, 2 H. Bl. 379 ; Aubert v. Maze, 

transactions of a partnership, formed for 2 B. & P. 371 ; Ewing v. Osbaldistou, 

purposes which werg inhibited by positive 2 My. & Cr. 53. See also Cannan v. 

statute merely, might be recognized and Bryce, 3 B. & Aid. 179, Steers ?;. Lashley, 

enforced by the courts, if they were one 6 T. R. 61 ; Brown v. Turner, 7 T. K. 630 ; 

step removed from the illegal contract itself. Webb v. Brooke, 3 Taunt. 6; Simpson v. 

jKc/jrtrte Balmer, 13 Ves. 313; Faikney y. Bloss, 1 Taunt. 246; Ottley v. Browne, 

Reynous, 4 Burr. 2069 ; Petrie v. Haniiay, 1 Ball & B. 360 ; Ex farte Randleson, 

3 T. R. 418 ; Watts v. Brook, 3 Ves. 612. 1 Mont. & M'A. 36, and cases cited. Nor 

See also Berkshire v. Evans, 4 Leigh, 223. will the courts any more sustain an action 

But these cases were in conflict with i>re- brought in revocation and disaffirmance of 

vious adjudication, and cannot be regarded an illegal contract of partnership. Booth 

as decided upon sound principles. Sulli- v. Hodgson, 6 T. R. 405; Ex parte Bell, 

van V. Greaves, Park on Ins. 8 ; Bensley 1 M. k S. 751. 

for the balance. Boggess v. Lilly, 18 Tex. 200; De Leon v. Trevino, 49 Tex. 88; 
Kead v. Smith, 60 Tex. 379. See also McGunn v. Hanlin, 29 Mich. 476. 

But by the weight of authority a bill for an account will not lie in case of an 
illegal partnership, though the business is wound up and the assets are all in the hands 
of the defendant partner. IJveret v. Williams, 1 Lind. Part. * 93 n. ; Sykes v. Beadon, 
11 Ch. D. 170 (scmUc); Craft v. McConoughy, 79 111. 346 ; Hunter v. P'feitfer, 108 Ind. 
197 ; Snell v. Dwight, 120 Mass. 9, 18 (semble) ; Jackson v. McLean, 100 Mo. 130, 13 
S. yV. 393 ; Todd v. Rafferty, 30 N. J. £((. 254 ; Woodworth v. Bennett, 43 X. Y. 
273 ; King v. Winants, 71 N. C. 469 ; Watson r. Fletcher, 7 Gratt. 1. Nor is the 
action allowed though an account has been stated, and the defendant has expressly 
agreed to pay the balance. Stewart v. Mcintosh, 4 H. & J. 233 ; Patterson's Appeal, 
13 W. N. C. 154 ; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173. And though 
the business was legal where it was carried on, the courts of a State in which it is regarded 
as against public policy will not entertain a bill for an account. Watson v. Murra\', 23 
N. J. Eq. 257. But though erpiity will not sustain a bill for an account of illegal partner- 
ship transactions, yet, if a part of the business of the partnershij) be legal and a part 
illegal, an account of that which is legal may be directed ; as where the business of a firm 
was that of brokers and underwriters, the court dismissed so much of the bill as sought 
for an account of the profits of the underwriting business, but decreed an account of 
the other business. Knowles v. Haughton, 11 Ves. 168; Anderson r. Powell, 44 la. 
20 ; Willson v. Owen, 30 Mich. 474. And where the business was legal when the 
partnership was formed, but was afterwards forbidden by statute, a partner may have 
an accounting as to the business done before the statute came into effect. Bennett v. 
Woolfolk, 15 Ga. 213. 

Where it appears that the profits of the firm were swelled by cheating customers, 
the fact is no defence to a bill for an account brought by the innocent partner. Todd 
V. Pennington, 21 Atl. 297 (X. J.). And it has been held that even if both parties 
were concerned in the fraud upon customers, a bill will lie whenever the partnership 
was foi'med for a legal purpose. Shriver v, McCloud, 20 Neb. 474, 30 N. W. 534. In 
Illinois, on the other hand, where one member of a legal partnership received bribes 
in the course of the firm business the other partner was held not to be entitled to an 
account of the money thus received. Northrup v. Phillips, 99 111. 449. Where the 
business of pawnbrokers was carried on by two persons under a deed of partnership, 
but under the apparent conduct and in the name of one, and he only was licensed, 
semble, that although the parties might have made .themselves liable to the penalties 



10 THE LAW OF PARTNERSHIP. [CH. II. 

and ag-ree to it. This is so essential, that no person can be intro- 
duced into a firm without the consent of all who are members of 
it, (k) This consent may be implied ; (l) and even if one or more 
members were reluctant, and made objections, and never expressly 
gave their assent, still it might be inferred from their acts, if tlie 
alleged partner or partners were treated by the other partners 
and in their transactions as only a partner could be or should be 
treated. (11) Still there must be this consent ; and we shall 
presently see that if a partner sells out all his interest in a firm 

(k) Ex parte Barrow, 2 Rose, 255 ; lations in the articles of association that 

Kingman v. Spurr, 7 Pick. 235 ; Murray heirs or representatives sViould themselves 

V. Bogert, 14 Johns. 318 ; Channel v. be partners. Otherwise in the English 

Fassit, 16 Ohio, 166 ; Moddewell v. Keever, and American law. See post, § 106. 
8 W. & S. 63 ; NicoU v. Munitbrd, 4 (l) Mason v. Connell, 1 Whart. 381. 

Johns. Ch. 522. Partnershijis inter sesc The ijuestion in this case was, whether 

can only be formed by the contract of the the firm of A. & B. was partner with C. 

parties. ' Freeman v. Bloomfield, 43 Mo. The evidence oH'ered on this point was a 

391 ; Metcalf v. Redmon, 43 111. 264. See written agreement of copartnership to 

Brown v. De Tastet, Jacob, 284 ; Bray r. which was signed the name of C, and also 

Froniont, 6 Madd. 5; Mathewson y. Clark, the name of the firm of A. & B., in the hand- 

6 How. 122 ; Goddard v. Hodges, 1 Ci-. & writing of A. It was held that engaging 

M. 33. Upon this principle of diledus the firm in such a partnershij) was out of 

personcc, neither the representatives of a the ordinary commercial transactions, and 

deceased partner, nor the assignees of one was therefore presumed to be without the 

bankrupt, become partners with the sur- scope of one partner's authority. But, 

viviiig or solvent partners, but are simply though the consent of each partner was 

entitled to an account. Pearce v. Cham- absolutely necessary to constitute a part- 

berlin, 2 Ves. 33 ; Marquand v. N. Y. nership, yet that such consent might be 

Man. Co., 17 Johns. 525 ; Griswold v. testified in express terms, or the assent 

Waddington, 15 Johns. 82. [Noonan v. might be tacit, or to be implied solely 

Nunan, 76 Gal. 44, 18 Pac. 98.] In the from the acts and conduct of the parties, 
civil law, the doctrine was even carried to {11) Pierce v. Whitley, 39 Ala. 172. 

the length of making null and void stipu- 

imposed by 39 & 40 Geo. 3, ch. 99, yet that, it being no part of the contract to carry 
on the partnership in such a manner as to contravene the law, the contract was not 
void ; but that, had a collateral agreement to carry on the partnership, in violation of 
the act of parliament, been proved, no rights could have been acquired under it by 
either party. Armstrong v. Lewis, 2 Cr. & M. 274. 

It is clear that, at least as to third persons, the title to property is recognized as in 
the partnership. Crescent Ins. Co. v. Bear, 23 Fla. 50, 1 So. 318 ; Tucker v. Adams, 
63 N. H. 361. Real estate standing in the name of both partners belongs to them in 
common. Watson v. Fletcher, 7 Gratt. 1. 

It has been held that an association to build a railroad, by pr-ocuring a charter for a 
corporation of which the partners should be the stockholders, and then making a 
contract for construction between the corporation and the partnership liy which the 
stock and bonds of the railroad should be given to the latter and sold by it, was formed 
for a fraudulent purpose, and was therefore illegal. Jackson v. McLean, 100 Mo. 130, 
13 S. W. 393. On the other hand a partnership to buy land at a tax sale is not illegal 
without proof that it was formed or necessarily tended to stifle competition. Dawson 
V. Ward, 71 Tex. 72, 9 S. W. 106. 



§ 11.] HOW PARTNERSHIP MAY BE MADE. 11 

to a third person, and expressly agrees with him that he shall 
take the seller's place in the partnership, this will not make him 
a partner, unless the other partners receive him as such, (w) 

If the articles of the cojjartnership provided, somewhat in the 
way those of joint-stock companies do, that a copartner might, 
in a certain way, and upon certain terms, transfer all his interest 
and rights in the company to a third person, who should, by force 
of the transfer, become a copartner in the transferrer's stead, a 
(;()urt of equity generally woidd, and a court of law migiit, so 
fur recognize the force of this }>rovision as to hold such trans- 
feree partner at once, (n) It is certain, however, that a mere 
agreement to admit a new member into a partnershij), like an 
agreement to form a partnership, (o) however expressed, and on 
whatever consideration, would not of itself invest any person or 
persons with the character of partners, although the breach of it 
might give an action for damages, (p) 

We shall hereafter see that, in reference to transfer and to 
incoming partners, the courts pay great respect to that " dilectus 
personarum^'' by which partners, who are so much in the power 
of each other, may protect themselves from the danger of having 
that power pass into hands to whom they would not willingly 
intrust it. {q) 

§ 10. Partnership Agreement vitiated by Fraud. — Every contract 
that is vitiated by fraud, or by coercion, is thereby avoided and 
annulled. This is certainly true of the contract of partnership ; 
and, from the peculiar character of the relation of partners, and 
of their almost unrestricted capacity to do each other an injury, 
it may be thought that courts would be peculiarly watchful to 
require that this contract was formed deliberately and freely, and 
without deception or undue or wrongful influence, (r) 

§ 11. Parties must be competent. — So, too, that the contract of 
partnership may be lawful, it must be made by competent parties ; 
that is, by those who have a legal right to enter into it. And we 
shall hereafter see that competency to enter into partnership is 

(m) See post, § 106. 89 ; Byrd v. Fox, 8 Mo. 574. See post, 

(n) Fox V. Clifton, 9 Bing. 15. See § 191. 
Kingman v. Spurr, 7 Pick. 236; Alvord (q) See 2)ost, § 106. 
V. ^>mith, 5 Pick. 232 ; Cochran v. Perry, (r) Tattersall v. Groote, 2 B. & P. 

8 W. & S. 262. See also ;oos<, § 107. 131; Ex parte Broome, 1 Rose, 69; 

(o) Wilson V. Caniphf'll, 5 Oilman, Green v. Barrett, 1 Sim. 45 ; Pillans v. 

383 ; Howell v. Brodie, 6 Bingham, N. C. Harkness, Colles P. C. 442 ; Hynes v. 

44. Stewart, 10 B. Mon. 429 ; Howell i-. Har- 

(;>) Figes v. Cutler, 3 Stark. 139; vey, 5 Ark. 270; Fogg r. Johnston, 27 

M'Neil V. Reid, 9 Bing. 68, 2 Moo. & Sc. Ala. 432. See ;ws^ eh. 14. 



12 THE LAW OF PARTNERSHIP. [CH. II. 

almost or quite coextensive with a competency to transact business 
generally, (s) 

§ 12. Time of beginning. — It is sometimes important to deter- 
mine when a partnership begins. Usually, this is determined by 
the contract of partnei'ship. If not, it would ])robably be held as 
presumption of law that it began when the written articles were 
executed. (^) But even if in the contract of partnership it were 
expi-essly stipulated that it should have a retrospective effect, and 
that the partnership should begin a certain time before the date, 
it might bind the parties to it, for some purposes at least ; but 
could not make them partners at the time stipulated, in refer- 
ence to third parties, except from the date, (u) 

If the agreement of copartnership is executory and conditional, 
no partnership is created by it until all the conditions are 
fulfilled, (v) 

In one case, in which the partnership was unlawful if entered 
upon on the day of the date of the articles, and lawful if it began 
three months afterward, the court held it to be an absolute pre- 
sumption of law that it began on the day of the date, although 
nothing in the articles specially indicated it. And the court re- 
fused evidence that the bargain and intention of the parties was 
not to enter upon the partnership until it should be legal. This 
case seems not to be good law ; although it would be proper 
to exclude evidence which contradicted an express provision, (w) 

(s) See post, § 14. be not executed till tlie 18th of January. 

(t) Howell V. Brodie, 6 Bing. N. G. Battley v. Bailey, 1 Scott N. R. 143. 
108 ; Aspinwall v. Williams, 1 Ohio, 38 ; (v) Fox v. Clifton, 6 Bing. 776 ; Dick- 
Austin V. Williams, 1 Ohio, 282 ; Grant v. inson v. Valpy, 10 B. & C. 128 ; Murray 
Watts, 10 Paige, 82 ; Ingraliam v. Foster, v. Pilchards, 1 Wend. ^8. See further 
31 Ala. 123 ; Beaman v. Whitney, 20 Me. Ward v. Thompson, 1 Newb. Adm. 95 ; 
413. [Guice v. Thornton, 76 Ala. 466.] Bisset on Part., part 2d, ch. 6 ; Story on 

{ii) Thus, where A. & B. who were al- Part., § 150 ; Avery v. Louve, 1 La. Ann. 

ready in partnership, agreed on the 24th 457 ; post, ch. 18. See Peck v. Thomas, 

of June to become partners with C, and 29 Eng. L. & Eq. 276. [So where the 

it was farther agreed that the new pait- agreement contemplates the obtaining of 

nership should be considered as commenc- land, fiom which the partnership is to 

ing from the 18th of May preceding ; held, realize its profit, the partnershiji would 

that C. was not liable as a partner upon a not generally begin till the land is ob- 

bill of exchange indorsed by the firm of tained. Snodgrass v. Reynolds, 79 Ala. 

A. & B. upon the 19th of May. Vere v. 452 ; Meagher v. Reed, 14 Col. 335, 24 

Ashby, 10 B. & C. 288 ; Wilsford i'. Wood, Pac. 681. 

1 Esp. 1-82. See Dyke v. Brewer, 2 Car. An agreement to enter into a partner- 
& K. 828. On the other hand, if A., B., ship in the future does not make the par- 
and C. agree to enter into partnership on ties partners : thej' do not become so until 
the first of January, and from that time the agreement is performed and the part- 
regard themselves as partners, the partner- nership launched. Goldsmith v. Sachs, 17 
ship will be held to have commenced on F. R. 726, 8 Sawy. 110] 
that day, though the deed of partnership {w} Williams v. Jones, 5 B. & C. 108. 



§ 13.] HOW PARTNERSHIP MAY BE MADE. 13 

Where the partiicrshij) was not formed by any express ajrree- 
meut, written or oral, but implied by law from certain joint 
transactions, it would be held to begin when these transactions 
took i>lace, or perhaps when the agreement to enter into them 
was formed, (x) Thus, if there were such a joint buying of 
property with the intention of joint selling, as would make the 
parties partners in law as to their property or business, they 
would be partners, not only when the thing was bought, but they 
might become partners as to this ])urchase by their agreement to 
join and act, although no responsibilities as partners would rest 
upon them until something was done to carry the agreement into 
effect.i 

§ 13. Jurisdiction of Partnership Suits. — It may be well to 
remark, in this connection, that courts of common law cannot 
take cognizance of a large proj5ortion of the cases which arise 
under the law of partnership. Nearly all of those which relate to 
the rights and obligations of partners inter se go into a court of 
equity. AVe shall hereafter see that one partner can sue another 
at law only in a few exceptional cases. And when the settlement 
of the affairs of a partnership is required, or the taking of an 
account, or the prevention or discontinuance of some wrongful 
act, or the protection or enforcement of a right by other means 

See Dix v. Otis, 5 Pick. 38 ; Yassar v. partnership between the defendants and 
Camp, 14 Barb. .356 ; Bird v. Hamilton, A. and B. in certain publications for 
"Walker Ch. 361. In this last case the which the paper was furnished and used, 
contract of partnership was executed the put in evidence accounts between the two 
16th of May. The language imputed a firms, determining their respective shares 
partnership m jn-cesenti. But, inasmuch of the profits accruing from such publica- 
as the business of the partnership could tions. These accounts bore dates from 
not be entered upon until the 1st of July, Januarj', 1836, to February, 1837. The 
the court, regarding the situation of the paper was supplied in Apiil and May, 
parties, construed the partnership not to 1836. Upon this state of facts, Ld. Den- 
commence until that time. man, C. J., left it to the jury to say 
(x) Gardiner v. Childs, 8 C. & P. 345. whether, nt the time the goods in question 
The firm, C. & D., defendants, were prin- were furnished, the defendants were part- 
ters. The present action was brought to ners in the concern upon whose credit 
recover of them the price of a certain they were supplied. The jury finding that 
amount of paper delivered to them by the they were, judgment was rendered for the 
plaintiffs, but at the order and upon the plaintiff's. See Avery v. Louve, 1 La. 
credit of the firm of A. and B., publishers. Ann. 457. 
The plaintiffs, to prove the existence of a 

1 Where the agreement contemplates joint action at once, though not in the busi- 
ness of the partnership, — as where the parties are to join in equipping a factoiy, — 
the partnership begins at once. Kerrick v. Stevens, 55 Mich. 167, 20 N. W. 888. 
And so if action is to begin at once the partnership begins, though the profit is not to 
be divided till one of the partners is reimbursed for his outlay. Beauregard v. Case, 91 
U. S. 134; Bybee r. Hawkett, 12 F. R. 649. 



14 THE LAW OF PARTNERSHIP. [CH. II. 

than damages for a breach of it, the parties necessarily resort to 
equity. Hence there is certainly no branch of commercial law 
(to which partnership emphatically belongs) that so often finds 
the common-law jurisdiction inadequate to its wants, and is there- 
fore obliged to resort to equity for relief. As we go on, we shall 
endeavor to point out specifically, in reference to the various 
questions and conflicting claims which are frequently springing 
up under the law of partnership, the methods and measures of 
relief which equity administers. 



§ 14.] OF PARTNERS. 15 



CHAPTER III. 



OF PARTNERS. 



§ 14. Who may be Partners. — There is nothing in this country 
to prevent any number of persons from entering into partnership. 
Notliing but their own convenience and pleasure determine 
this, (a) 

As to personal competency, it may be said that any persons 
competent in law and in fact to transact ordinary business on 
their own account may enter into partnership for that purpose. 
For there is nothing in the status of partnership, which, on the 
one hand, confers a power to transact business on one who 
otherwise would have no power, or, on the other, restrains or 
diminislies the power in him who possesses it before or without 
partnership. 

We have said competent in law and in fact, because there 
are incompetencies created by the law, or absolutely presumed, 
without any reference to the actual fact ; (5) as in the case of an 

(a) But now, in England, by "The sons who have not been qualified in a 

Companies Act " of 25 & 26 Viet. 1862, prescribed legal way incompetent to exer- 

consolidating and amending former acts cise particular trades or professions. Thus, 

upon the subject, no partnersliip consist- by 5 Eliz. ch. 4, persons were piohibited 

ing of more than twenty persons, which from following any manual art or occupa- 

has for its object the acquisition of gain, tion who had not previously served an 

is allowed to carry on business without apprenticeship to the same. But one 

forming a company by registration ; and who, though he had not been appren- 

under the provisions of this act any seven ticed, was a partner with a brewer, was 

or more persons may so associate, with or held not within the statute, since he had 

without limited liability, as they may not acted in nor personally exercised the 

elect and declare. trade. Reynard v. Chase, 2 Wils. 40. See 

('j) In England, the statute 57 Geo. 3, 22 Geo. 2, ch. 46, § 11, an act to prevent 
ch. 99, § 3, rendered all s[iiritual persons imqualified persons from acting as attorn- 
iiicom[)eteat m law to carry on, by them- eys or solicitors. In re Jackson, 1 B. & 
selves or their agents, " any trade or deal- C. 270 ; In re Clark, 3 D. & R. 260 ; Hop- 
ing for gain or profit," and of course thereby kinson v. Smith, 1 Bing. 13; Candler »•. 
interdicted such persons from being part- Candler, Jac. 225 ; Sterry v. Clifton, 9 C. 
ners for that purpose. Hall v. Franklin, B. 110 ; Taylor v. Glassbrook, 3 Stark. 
3 M. & W. 259. See 1 & 2 Vict. ch. 106. 76. In Gilfillan v. Henderson, 2 CI. & F. 1, 
So also the law sometimes renders all per- two solicitors had entered into partner- 



16 THE LAW OF PARTNERSHIP. [CH, III. 

infant, who cannot lawfully do, the day before he is twenty-one, 
what he may do on that day. 80 a married woman is disabled at 
common law, althou<^h in fact she may have far greater business 
capacity than her husband. An insane person is disabled by the 
fact of his insanity ; and whether insanity exists, and in a 
sufficient degree to have this "effect, must be a question of fact 
only. And some difficulty, to say no more, attends the entering 
into a copartnership of a corporation as a member of the firm. 
We will, however, look at some of these questions more 
specifically. 

§ 15. Infants. — Infants are persons under twenty-one years of 
age ; and, for their own benefit and safety, the law considers them 
disqualified for the transaction of business. Their contracts or 
promises for necessaries — such as shelter, food, raiment, and 
sucli other means of support and education as are proper for them 
— are valid and obligatory, because it is for their interest that 
they should be able to bind themselves for the things they must 
have, or suffer from the want of them. But the promise of an 
infant in any business transaction is voidable by him ; because it 
is not necessary that he should earn money by buying and 
selling, (d) 

The promise is voidable only (if made by an infant mentally 
and physically able to make it), and not, in any case absolutely 
void, as it used to be called, (e) 

ship, one of whom could practise only in serted in a very great number of cases. 
a superior court, the other only in an iufe- Keane v. Boycott, 2 H. Bl. 511; Bayley, J., 
rior court. By their agreement the profits in Thornton v. lUingworth, 2 B. & C. 826 ; 
of their general business were to be divide<l; Fisher v. Mowbray, 8 East, 330 ; Baylis v. 
each was to recommend clients to the Dineley, 3 M. & S. 477 ; Tucker v. More- 
other, and the existence of the partner- land, 10 Pet. 58 ; Vent v. Osgood, 19 Pick, 
ship was to be kept secret. It was held 572 ; Lawson v. Lovejoy, 8 Me. 405 ; Rog- 
that the agreement was illegal and void, ers v. Hurd, 4 Day, 57 ; Pool v. Piatt, 
See Li re Woodward, 4 Johns. 289. 1 D. Chip. 252 ; McGaw v. Marshall, 

(d) 1 Rol. Abr. 729 ; Whittingham v. 7 Humph. 121 ; MMinn v. Richmonds, 

Hill, Cro. Jac. 494 ; Whywall v. Cham- 6 Yerg. 9 ; M'Crillis v. How, 3 N. H. 

pion, 2 Stra. 1083 ; Dilk v. Keighley, 348 ; Swasey v. Vanderheyden, 10 Johns. 

2 Esp. 480 ; Goode v. Harrison, 5 B. & 33 ; United States v. Bainbridge, 1 Mason, 

Aid. 147 ; Van Winkle v. Ketchum, 3 71 ; Fridge v. The State, 3 Gill & J. 

Gaines, 323 ; Smith v. Mayo, 9 Mass. 62 ; 103 ; Ridgeley v. Crandall, 4 Md. 435 ; 

Mason v. Wright, 13 Met. 306 ; Crabtree Cronise v. Clark, 4 Md. Ch. 403. But 

V. May, 1 B. Mon. 289. the doctrine of the text seems more sound 

(c) The supposed doctrine of the com- in principle and more practical of apjilica- 

mon law, that there are some contracts of tion, and is supported by the later authori- 

an infant, namely, those which the courts ties. Williams v. Moor, 11 M. k W. 256 ; 

can pronounce to be to his prejudice, which Fonda i'. Van Home, 15 Wend. 631; 

are absolutely void, is recognized and as- Breckenbridge v. Ormsby, 1 J. J. Marsh. 



§15.J 



OF PARTNERS. 



17 



The contract of partnership is like all other mercantile 
contracts, and may be made by an infant for his own benefit, 
subject to his right to avoid it. (ee) ^ 



236 ; Scott v. Buchanan, 11 Huniiih. 468 ; 
Cummings v. Powell, 8 'i'exa.s, 80 ; Cole v. 
Pennoyer, 14 111. 158 ; Robbins v. Cutler, 
26 N. H. 173; Weaver v. Jones, 24 Ala. 
420 ; Hardy v. Waters, 38 lie. 450 ; Fer- 
guson V. Bell, 17 Mo. 347; Strain v, 
Wright, 7 Ga, 568 ; 1 Am, Lead. Gas. 
103 ; Taft v. Seri^eant, 18 Barb. 320. 

{ce) Crabtree v. May, 1 B. Mon. 289 ; 
GIossop v. Colnian, 1 Stark. 25. Hence, 
an infant may be a partner in a mercan- 
tile house, his father supplying the capi- 
tal ; and if the transaction be a bona fide 
one, and the son be the real party in in- 
terest, and the father retain no power of 
withdrawing from the firm either the 
capital or the profits, an agreement that 
the firm shall account to the father as 
trustee for his son for one-third profit of 
his son's capital, or any loss that may 
accrue, and be governed by his advice iu 



all business matters, will not make the 
father a partner. Barklie v. Scott, 1 Hud. 
& Bro. 83. But, though an infant coming 
of age may avoid his contract, he cannot 
recover of persons wlio have dealt with the 
partnership money expended by him in its 
affairs, for which he has received and en- 
joyed a valuable consideration. Holmes 
V. Blogg, 8 'i'aunt. 508. But where A., 
an infant, made an agreement of copart- 
nersiii[) with B., and paid to him a hun- 
dred pounds, to be forfeited if, when he 
came of age, the partnershiit deed was not 
duly executed by him, the jury finding 
that A. had paid the money on a fraudu- 
lent representation in B.'s balance sheet, 
A., attaining his majority and disaffirm- 
ing the contract, was allowed to recover 
back the deposit, Corpe v. Overton, 10 
Bing. 252. This last case differs from 
Holmes v. Blogg iu many important fea- 



^ The infivnt partner who has not disaffirmed has all the rights and is subject to the 
duties of a partner. Thus his coi>aitner may maintain a bill for dissolution and 
account, because of the infant's misconduct. Bush v. Linthicum, 59 Md. 344. But 
he has a right to protection against liability, and therefore he may set up his infancy 
in defence to a personal claim against him by a partnership creditor, Pelletier v. 
Couture, 148 Mass. 269, 19 N. E. 400 : Folds v. Allardt, 35 Minn. 483, 29 N. W. 
201 ; and where his partner is allowed to file a bill for a dissolution, the infant cannot 
be charged with costs. Bush v. Linthicum, 59 Md. 344. 

Where the infant puts capital into the partnership, the better view is that he can- 
not u]>on disaffirming the contract withdraw his capital. Pelletier v. Couture, 148 
Mass. 269, 19 N. F. 400 ; Dunton v. Brown, 31 Mich. 182; Foot v. Goldman, 68 Miss. 
629, 10 So. 62 ; Hill v. Bell (Mo.), 19 S. W. 959. And if he gives his time to the 
business he cannot recover the value of his services from his copartner. Page v. Morse, 
128 Mass. 99. Even after dissolution, the assets are to be distiibuted according to tlie 
articles ; if there has been a loss, the infant must bear his share. Moley v. Brine, 120 
Mass. 324. 

If the infant paid a premium to gain entrance to the firm, he cannot upon disaffirm- 
ing the contract, recover the amount of the premium. Ex p'xrtc Taylor, 8 DeG. M. 
& G. 254. 

It has however been held in New York that an infant may rescind the contract of 
partnership and recover the amount of his contributions, less what he has received 
from the partnership. Sparman v. Keim, 83 N. Y. 245. Even in that State, however, 
it would seem that this cannot be done if it would prejudice creditors of the partner- 
ship. Yates V. Lyon, 61 N. Y. 344. 

The infant's right to disaffirm extends to all transactions, it would seem, except as 
llmiteil by rights acquired against the firm by third ))iuties. Thus he may avoid an 
assignment of the firm property for the benefit of creditors made either by himself or 
by his partner. Foot v. Goldman, 68 Miss. 529, 10 So. 62. 

2 



18 THE LAW OF PARTNERSHIP. [CH. III. 

§ 16. Ratification after Coming of Age. — A promise of ail infant 
may be ratilied by liini after he is of full age. And this ratifica- 
tion may be direct and express, or it may be implied by his acts, 
or even his silence, or inferred by law from circumstances. In 
England, no ratification, after full age, binds an infant, unless 
made in writing and signed by him. (/) A similar statute exists 
in Maine, {y) It is not quite certain how this requirement would 
affect a ratification by a continuance of the partnership and busi- 
ness. If, for exami^le, a young man of the age of twenty entered 
into a partnership, and at twenty-one took no notice of his having 
been an infant, but continued in the partnership and in the same 
business for a year or two more, and the firm was then called on 
to settle an account running through all these years, it is doubtful 
if, under this statute, the infant would be permitted to draw a line 
between the items, and hold himself responsible only for those 
which were subsequent to his majority. In this country generally, 
one who was an infant may not only ratify after coming of age 
any promise to which there is no other objection than the fact of 
the previous infancy, but may ratify this by any conduct of an 
unequivocal character, which must be understood either as a rati- 
fication, or else as fraud or as gross negligence on his part, {h) ^ 

tures. The court, however, distinguish it satisfied the statute, and that the date, 

from that case only upon the ground that address, and debt might be proved by 

in the one the infant had, and in the other parol. 

he had not, enjoyed a valuable consideia- ('/) Acts of Maine, 1845, ch. 166. See 

tion for the money he sought to recover Thurlovv v. Gilmore, 40 Me. 378. 
back. (h) Martin v. Mayo, 10 Mass. 137 ; 

(/) 9 Geo. 4, ch. 14, § 5. In the Whitney v. Dutch, 14 Mass. 457 ; Pierce 

construction of this statute, it has been v. Tobey, 5 Met. 168 ; Orvis v. Kimball, 

held that "any written instrument signed 3 N. H. 314 ; Aldrich v. Grimes, 10 N. H. 

by the party, which, in the case of adults, 194; Robins v. Eaton, 10 N. H. 561; 

would have amounted to the adoption of Edgei-ly v. Shaw, 25 N. H. 514 ; Boydeu 

the act of a party acting as agent, will, in v. Boyden, 29 N. H. 519; Delano v. 

the case of an infant who has attained his Blake, 11 Wend. 85 ; Bigelow v. Grannis, 

majority, amount to a ratification." Harris 2 Hill (N. Y. ), 120 ; Taft v. Sergeant, 18 

V. Wall, 1 Exch. 122. See Mawson v. Barb. 320 ; Law&on v. Lovejoy, 8 Me. 405 ; 

P.lane, 10 Exch. 206. In Hartley v. Richardson v. Bright, 9 Vt. 368 ; Best v. 

Wharton, 11 A. & E. 934, the writing by Givens, 3 B. Mon. 72 ; Cheshire v. Barrett, 

which the ratification was alleged to be 4 Me(.'ord, 241 ; Bobo v. Hansell, 2 Bailey, 

made was a letter, without date or address, 114: Eubanks v. Peak, 2 Bailey, 497; 

containing a promise to remit within a Alexander r. Heriot, Bailey Eq. 223 ; 

short time, but mentioning no sum nor Thnmasson v. Boyd, 13 Ala. 419 ; Forsyth 

any particular debt. It was held, never- v. Hastings. 27 Vt. 646. 
theless, that this was a ratification which 

^ An infant partner who continues his connection with the business after coming of 
age ratifies all partnership transactions during his infancy. Salinas v. Bennett, 33 S. 
C. 285, 11 S. E, 968. 



§1^-] 



OP PARTNERS. 



19 



But a mere acknowledgement that the debt exists is not of itself 
a ratification of a promise to pay the debt. {() 

If we suppose that an infant enters into a partnership, holding 
himself out by his declarations, or by the plain indication of cir- 
cumstances, as an adult, and, after he comes of age, does not 
expressly withdraw or give any equivalent notice, persons dealing 
with the firm in the belief that the former infant was still a part- 
ner would hold him liable ; because, whether he was a partner or 
not, he permitted the firm to use his credit, and he, and not an 
innocent third party, must suffer the consequences, (j) 

In general, an infant partner who comes of age should, with no 
unnecessary delay, leave the firm, and declare himself not respon- 
sible for its debts, if he intends to take that course ; for any 
considerable delay would bind him like a ratification, because it 
could be accounted for only by criminal neglect or fraud, (k) 



(i) Thrupp V. Wilder, 2 Esp. 628 ; 
Gooiisell I'. Myers, 3 Wend. 479 ; Millard 
V. Hewlett, 19 Wend. 301 ; Smith v. 
Mayo, 9 Mass. 62 ; Ford v. Phillips, 1 
Pick. 202 ; Thompson v. Lay, 4 Esp. 48 ; 
Benham v. Bishop, 9 Conn. 330 ; Wilcox 
V. Roath, 12 Conn. 550 ; Hale v. Gerish, 
8 N. H. 374 ; Robbins i'. Eaton, 10 N. H. 
561 ; Ordinary v. Wherry, 1 Bailey, 28 ; 
Alexander v. Hutcheson, 2 Hawks, 535 ; 
Hindy v. Margarity, 3 Barr, 428. 

{j) Goode V. Harrison, 5 B. & Aid. 
147. Goode & Bennion, defendants below, 
had held themselves out as general part- 
ners in trade, especially by a joint pur- 
chase of goods of the plaintiff in April, 
1818. At that time Bennion was an in- 
fant, though that fact was unknown to 
the plaintiff. There was evidence showing 
that Bennion did not intend to be a part- 
ner with Goode, except for the single 
transaction of April, 1818, and that he 
did not afterwards interfere with Goode's 
general business. In Maj- following he 
became of age ; but no notice of his hav- 
ing ceased to be a partner was ever given 
by him. Subsei|nently to his coming of 
age Goode bought more gootis of Harrison 
in the name of the firm, and accepted a 
bill for them in the name of himself and 
Bennion. It was held that Bi^nnion was 
liable on this bill ; for, having shortly be- 
fore he came of age represented himself 
as a partner, it was his duty to notify the 
plaintiff that he was not so when he came 



of age, as otherwise he facilitated the com- 
mission of a fraud upon the plaintiff. 

{k) See Holmes v. Blogg, 8 Taunt. 35 ; 
1 J. B. Moore, 466. In March, 1816, the 
firm of A. & B. leased certain premises for 
the purposes of their trade. A., an in- 
fant, in the presence of B., advanced one 
half of the amount of the rent. For the 
other half three bills were drawn upon the 
fii'm, and accepted by A. in the names of 
himself and [)artner, the first bill payable 
in four months. In June, A. reached his 
majority, and immediately dissolved the 
partnership ; but, though his name was 
taken from the door shortly afterwards, no 
notice w-as given of his avoidance of the 
lease till nearly four months afterwards. 
Dallas, J., said : "I agree that in every 
instance of a contract, voidable only by an 
infant on coming of age, the infant is 
bound to give notice of disaffirmance of 
such contract in i-easonable time ; and, 
if the case before the court were that sim- 
ple case, I should be disposed to hold, 
that, as the infant had not given express 
notice of disaffirmance within four months, 
he had not given notice of disaffirmance in 
reasonable time." But it seems that no- 
tice of disaffirmance of an infant's contract 
may be dispensed with by the acts of the 
party to whom it would otherwise be due. 
The lessor, in this case, having, after the 
dissolution of the partnership, made a new 
arrangement with B., A.'s copartner, by 
whicli a part of the rent was remitted, 



20 



THE LAW OF PARTNERSHIP. 



[CH. III. 



§ 17. Avoidance of Contract. — It may be well to remark that 
the right of an infant to avoid his contract gives no right of avoid- 
ance whatever to the other contracting party, who is bound if 
the infant does not choose to avoid the contract. {I) The 



and having, when the first bill became 
due, sued B. alone upon it, and having 
afterwards compromised tlie action, and 
accepted from B. alone a surrender of the 
lease, and cancelled the other bills, all 
this without the privity of A., it was 
held that there should be a new trial, 
in order that the jury might determine 
whether, upon these facts, notice of disaf- 
firmance had not been waived. The case, 
however, was ultimately decided upon 
other grounds. 8 Taunt. 508. The dic- 
tum of Dallas, J., above quoted, that an 
infant must disaffirm his contract within 
a reasonable time after coming of age, or 
his silence will bind him like a ratifica- • 
tion, is established law in the English 
courts, and has been approved by emi- 
nent judges in this country. Cork & 
Bandon R. R. Co. v. Cazenove, 11 Q. B. 
935 ; Leeds & Thirsk R. R. Co. v. Fearn- 
ley, 4 Exch. 26 ; Northwestern R. R. Co. 
V. M'Michael, 5 Exch. 114; Dublin & 
Wieklow R. R. Co. v. Black, 8 Exch. 181 ; 
Richardson v. Boright, 9 Vt. 368 ; Kline 
V. Bebee, 6 Conn. 494 ; Scott v. Buchanan, 
11 Humph. 468. But the weight of 
American authority cannot be said to be 
in favor of the proposition that mere neg- 
lect to disaffirm will of itself amount to 
a ratification. There must, beside, be 
positive action on the part of him who 
has come of age clearly indicating his 
intention to abide by the contract which 
he has made during his infancy. Thus, 
in Dana v. Stearns, 3 Cush. 342, B., an 
infant, and S. had been in partnership, 
which was, however, dissolved by mutual 
consent before B. came of age. B. sold 
out his share to S.. took therefor the note 
of S. with security, but never expressed 
any purpose of repudiating the partner- 
ship. In an action brought against B. & 
S. as partners, upon notes given by them 
while in business together, and in consid- 
eration of merchandise sold and delivered 
to them, it was contended that B. had 
ratified the partnership after coming of 
age, and therefore the notes iu suit, by 



retaining and attempting to enforce the 
note of S. above mentioned, which was 
given by S. not only for the amount of 
capital originally contributed by B., but 
also in addition for B.'s share of the protits 
realized by the firm during their continu- 
ance in business. But the court held that 
no sufficient ratification was proved from 
these facts, and that B. was not liable for 
the partnership debts. See, to the same 
point, the note to the case of Dublin & Wick- 
low R. R. Co. V. Black, 8 Exch. 181, where 
the American authorities are reviewed. 
See also Jones v. Phoenix Bank, 8 N. Y. 
228 ; N. H. Mut. F. Ins. Co. v. Noyes, 
32 N. H. 345 ; Stokes v. Brown, 4 Chand. 
39. A plea of infancy to a note executed 
by an infant partner in the name of the 
firm is not avoided by a replication that 
defendant had continued to be a partner 
for a year and more after he became of 
age, and had not during that time, nor 
for some years after, disaffirmed any note 
executed during his infancy in the name 
of the firm. There should also be an 
averment that he had knowledge of the 
particular contract declared on, and that 
he was looked to as a party to it. Crab- 
tree V. May, 1 B. Mon. 289. In Miller v. 
Sims, 2 Hill (S. C), 479, an action was 
brought on a note signed by Sims in the 
name of Sims & Ashford. Ashford was, 
at the time of signing, a minor. After lie 
came of age there was evidence that he 
received moneys due the firm, and signed 
the firm name, but refused to have any- 
thing to do with the note in question, 
and never ratified or confirmed it. The 
court held that if Ashford, after coming 
of age, did in any manner concur in carry- 
ing on the partnership business, or receive 
profits from it, it would amount to a rati- 
fi. ation ; and that, by affirming the part- 
nership, Ashford recognized and affirmed 
the agency of Sims. 

(0 Holt ?;. Ward, 2 Str. 937 ; Warwick 
V. Bruce, 2 M. & S. 205 ; Willard v. Stone, 
7 Cow. 22 ; Paikei- v. Barker, 1 Clarke Ch. 
136 ; Rose v. Daniel, 3 Brev. 438 ; Voor- 



. § 18.] 



OF PARTNERS. 



21 



infant's privilege of avoiding his contracts extends to his legal 
representatives, (m) 

A fiat or decree of bankruptcy against an infant is not voidable 
only, but wholly void at law. (n) Equity, however, will not declare 
it void if he has induced persons to give him credit as an adult 
member of the firm, but will leave him to his remedy at law. (o) 
But the fact that his name is used in the firm is not of itself suffi- 
cient to prevent equity from annulling the same, (p) 

§ 18. Effect of Plea of Infancy. — If a contract be made with a 
firm, one of the members being an infant, and repudiating his 
own liability, it seems to be doubted whether the contract can 
afterwards be treated as a contract made with the other part- 
ners, (pp) It would seem, however, that it may. The technical 



hees V. Wait, 3 Green, 343; M'Ginn v. 
Shaeffer, 1 Watts, 412 ; Camion v. Als- 
buiy, 1 A. K. Marsh. 76. 

(wi) Hussey v. Jewett, 9 Mass. 100 ; 
Martin c. Mayo, 10 Mass. 137 ; J;icksoii 
V. Mayo, 11 ilass. 147. 

(n) O'Brien v. Currie, 3 0. & P. 283 ; 
Beltoi) P. Hodges, 9 Ring. 365. The fiat 
is void, because a minors contracts of trade 
being voidable, he cannot be a bankrupt for 
debts which he is not obliged to pay. Ibid. ; 
Rex r. Cole, 1 Ld. Kaym. 443 ; Lord 
Eldon, in Ex parte Adam, 1 Ves. & B. 494 ; 
Ex parte Moule, 14 Ves. 602. Hence also 
a joint commission of bankruptcy against 
a firm, one of the members of which is an 
infant, will be superseded. Ex parte Hen- 
derson, 4 Ves. 163 ; Ex jxirte Barwis, 6 
Ves. 601. But where a statute provides 
that an adjudicated bankrupt, to test the 
validity of the commission, must show 
cause before the commissioner within 
seven days after the adjudication ; or, to 
dispute or annul the fiat, must commence 
proceedings within twenty-one days after 
the advertisement of the bankruptcy, — 
a partner adjudged a bankrupt while an 
infant cannot after the lapse of the pre- 
scribed period maintain a petition pray- 
ing, on the ground of his infancy, to have 
the adjudication and fiat annulled ; there 
being in this respect no exception made 
of infants in the statute. Ex parte West, 
2 De Gex, M. & G. 198. [But under the 
insolvency laws a firm may be declared 
insolvent though one partner sets up his 
infancy. The infant however cannot 



himself be involved in the proceedings. 
Pelletier v. Couture, 148 Mass. 269, 19 N. 
E. 400.] 

(o) Ex parte Watson, 16 Ves. 265. 
The Lord Chancellor delivered his opinion 
as follows: "As it appears in this case 
that the petitioner held himself forth to 
the world as an adult, and sici juris, and 
traded in that character, and. contracted 
debts to a considerable amount for two 
years previous to the commission, and as 
this i)etition is opposed on behalf of the 
creditors, I will make no order ; but leave 
the bankrupt to his action at law, if he shall 
think proper so to do. I consider him no 
more entitled to any favor or assistance 
than a feme covert who lives apart from 
her husband, and holds herself out as a 
feme sole, and contracts debts, is entitled 
to any summary relief from the judges at 
common law ; who always leave a woman 
of that description to make the best she 
can of her plea of coverture in any action 
brought against her, and constantly refuse 
to interfere so as to aff"ord her any sum- 
mary relief." 

{p) As where A. takes B., his minor 
son, sixteen years old, into partnership. 
Though the names of A. & B. are put over 
the door of their place of business, B. is 
not by that circumstance so held out to 
customers as an adult partner as to lose 
the right of having annulled a joint fiat of 
bankruptcy issued against the firm of A. 
& B. Ex parte Lees, 1 Deacon, 705. 

{pp) See Story Part. § 255. 



22 



THE LAW OF PARTNERSHIP. 



[CH. III. 



rules of pleading in England require that if an action be brought 
against an infant (or one who was an infant at the time of the 
promise) and others, and infancy is pleaded, the plaintiff cannot 
proceed against the others, but he may bring a new action against 
them alone, {q) And if he brings an action originall}' against 
them alone, and the non-joinder of the infant is pleaded in 
abatement, the infancy is a sufficient replication, (r) although a 
ratification by him who has been an infant would be a good 
rejoinder, (s) In Massachusetts, New York, New Hampshire, 
Indiana, and Maine, it has been held that an action brought 
against all may be continued against the other parties when 
one of them pleads infancy ; {t) and it is to be expected that 
this would be recognized as the American rule. 

§ 19. Married Women. — A married woman is, by common law, 
incapable of trade, and therefore of entering into partnership. 
But, by the " custom of London," married women may some- 
times be sole traders, (?^) and the courts of this country are quite 
indulgent in permitting women whose husbands have deserted 
them — voluntarily, or by compulsion of law — to enter into busi- 
ness for their support. And it seems that any married woman who 
is capable of being a sole trader may also enter into a commercial 
partnership, {v) 



{q) Chandler v. Parkes, 3 Esp. 76 ; 
Jatfray v. Frebain, 5 Esp. 47. 

(r) Burgess v. Merrill, 4 Taunt. 469 ; 
2 Yin. Ab. 68. 

(s) Gibbs 1-. Merrill, 3 Taunt. 307. But 
such rejoinder must be supported by proof 
of a ratification made before suit brought. 
Thornton v. Illingworth, 2 B. & C. 824. 
In an action for a partnership debt, an 
infant partner must be made co-plaintiff. 
Teed v. Elworthy, 12 East, 210 ; Kell v. 
Nainby, 10 B. & C. 20. 

(t) Woodward v. Newhall, 1 Pick. 500 ; 
Tuttle V. Cooper, 10 Pick. 281 ; Hartness 
V. Thompson, 5 Johns. 160 ; Robertson v. 
Smith, 18 Johns. 478 ; Morton v. Croghan, 
20 Johns. 123 ; Judson v. Gibbons, 5 
Wend. 224 ; Ex parte Nelson, 1 Cow. 
424 ; Cutts v. Gordon, 13 Me. 474. The 
same is the rule in Indiana. Kirby v. 
Cannon, 9 Ind. 371. So, too, in New 
Hampshire. Gay v. Johnson, 32 N. H. 
167. See also Wamsley v. Lindenberger, 
2 Rand. 478 ; Cole v. Pennell, 2 Rand. 
174 : Barlow v. Wiley, 3 A. K. Marsh. 
457 ; Slocum v. Hooker, 13 Barb. 536. 



(n) Langham v. Bewett, Cro. Car. 68. 
In this case, the custom of London was 
read, to wit : "That a feme sole merchant 
is where the/cme trades by herself in one 
trade, with which her husband doth not 
meddle, and buys and sells in that trade." 
But the city courts only, not the supei'ior 
courts at Westminster, take notice of this 
custom, so that a feme covert cannot, by 
virtue of it, sue or be sued in the latter 
without her husband. Caudell v. Shaw, 
4 T. R. 361 ; Beard v. Webb, 2 B & P. 93 ; 
Cosio V. De Bernales, 1 C. & P. 266, note. 

(i') [Penn v. Whitehead, 17 Graft. 503.] 
By the law of England a wife may act as 
a feme sole, if her husband has been ban- 
ished, or has abjured the realm, or been 
transported, or if he has professed the 
Catholic religion. Co. Litt. 132 b, 133 a ; 
Lean v. Schutz, 2 W. Bl. 1195; Corbet t z;. 
Poelnitz, 1 T. R. 5 ; Marshall v. Ruttoii, 
8 T. R. 545 ; Carroll v. Blencow, 4 Esp. 
27 ; Marsh v. Hutchinson, 2 V>. & P. 231 ; 
Ex parte Franks, 1 Moo. & Sc. 1. So, &ho, 
if her husband is an alien, who has never 
resided in England. Deerly v. Mazarine, 



20.J 



OF PARTNERS. 



23 



§ 20. statutory Changes. — Legislation in this country has made 
the most im|)(ji-t;uit and extensive additions to tlie powers of mar- 
ried women. So early as 1718, in Pennsylvania, and 1744, in 
South Carolina, the privileges oiferne aole traders by the custom 
of London were extended to married women in those States, 
which were then colonies, {w) Within the last few years, the 
legislatures of very many States have made much greater innova- 
tions upon the law of husband and wife. The various statutes 
differ of course in their details, but, in general, their object and 
scoi)e arc the same.^ 



1 Salk. 116 ; De rxallou v. L'Aigle, 1 B. 
& 1'. 357 ; Miiiwli v. Hutchiiisoii, 2 B. & 
?. 226 ; Farber v. Grauard, 4 B. & \\ 80 ; 
Walfonl V. De Pieiine, 2 Esj). .o54 ; Fiaiiks 
V. De Pitniiie, 2 Ksp. 587 ; Kay v. Pieiine, 
3 Camp. 12:3. Tlie priuciiile upon which the 
Eiii^li.sh courts have proceeded in these cases 
is, that, in the view of the law, the husband 
has no civil existence, and that the wife is 
tiieiefoie m a state of civil widowhood. In 
this country, the same exceptions to the 
disability of married women to make and to 
be bound by contracts have been recognized 
by the courts. Gregory v. Paul, 15 Mass. 
31 ; Robinson v. Reynolds, 1 Aik. 174 ; 
Cornwall v. Hoyt, 7 Conn. 420 ; Wright 
V. Wright, 2 Desau. 244 ; Boyce v. Owens, 
1 Hill (S. C), 8; M'Arthur v. Bloom, 2 
Duer, 151. And, if a man has never lived in 
that State of the Union in wliich his wife 
resides, be is, so far as that State is con- 
cerned, an alien, and his wife is treated as 
a feme sole. Abbot v. Baylc}', 6 Pick. 89. 
But American courts have also gone far- 
ther, and have held a separation from and 
abandonment of the wife, coupled with an 
intent to renounce dc facto the marital 
relation, to operate like an abjuration of 
the realm, and to invest the wife with the 
rights of ^ feme sole. And in some cases 
sliglit circumstances have been considered 



sufficient to constitute such desertion aiwi 
lenunciation. Bogget v. Frier, 11 East, 
301 ; Gregory i-. Pierce, 4 Met. 478 ; Rhea 
V. Rhenuer, 1 Pet. 105 ; Valentine v. 
Ford, 2 P. A. Browne, 193 ; Bean v. 
Morgan, 4 McCortl, 148 ; Love v. Moy- 
nehan, 16 111. 277 ; Krebs v. O'Grady, 
23 Ala. 726. In Massachusetts, a wife 
divorced a nnensa et thoro may sue and be 
sued as a feme sole. Dean v. Richmond, 
5 Pick. 461 ; Pierce v. Barnhani, 4 Met. 
303. Otherwise in England. Lewis v. 
Lee, 3 B. & C. 291. Where a feme covert 
entered into agreement of partnership, 
providing for its duration beyond the death 
of her husband, and this agreement was 
executed, ^nd the partnership continued 
beyond her husband's death until her own, 
it was held, that the copartnership related 
back to the execution of the articles, so as 
to give all parties the same rights and 
advantages as they would have been enti- 
tled to if tlie/e?)!e covert had been a feme 
sole at the date of their execution. Everit 
V. AVatts, 10 Paige, 82. 

(iv) Burke v. AVinkle, 2 S. & R. 189 ; 
Jacobs V. Fatherstone, 6 W. & S. 346 ; 
Newbiggin v. Pillans, 2 Bay, 462 ; Mc- 
Dowall V. Wood, 2 N. &'McC., 242; 
Stark V. Taylor, 4 McCord, 413. 



1 It is still true that in the absence of express statutory authority a married woman 
cannot (with the exceptions already noticed) be a partner. De Graum v. Jones. 23 
Fla. 83, 6 So. 925 ; Bradstreet v. Baer, 41 Md. 19 ; Brown v. Jewett, 18 N. H. 230 ; 
Gwynn v. Gwynn, 27 S. C. 525, 4 S. E. 229 ; Weisiger v. Wood, (S. C.) 15 S. E. 
597 ; Frank v. Anderson, 13 Lea, 695 ; Brown v. Chancellor, 61 Tex. 437 ; Miller j;. 
Marx, 65 Tex. 131 ; Carey v. Burruss, 20 W. Va. 571. 

But under statutes which allow her to carry on business as if sole, she may form a 
partnership. Abbott v. Jackson, 43 Ark. 212 ; Dupuy v. Sheak, 57 la. 361 ; Vail v. 



24 THE LAW OF PARTNERSHIP. [CH. III. 

rf a single woman was a member of a firm, — which she 
certainly may be, — no doubt the established principle, by which 
her marriage dissolved the partnership, would still prevail, 
generally at least, in this country, {y) 

§ 21. Ownership of Share in a Partnership. — There are kinds of 
partnership, as joint-stock companies and the like, in which a 
partner may only own stock or shares, and take no part whatever 
in the active management of the concern. There is nothing to 
prevent a wife from holding such stock or shares ; but her 
ownership — or partnership, if it should be so called — would 
seem to be that of her husband, and upon him would rest generally 
all the liabilities and obligations of a partner, {z) So, if a man's 

{y) Watson on Part. 384 ; Gow on the time of his marriage, his wife was a 
Part. 225. See post, ch. 12. And see legally registered owner. After their mar- 
Brown V. Jewett, 18 N. H. 230. ringe, the shares had continued to stand 

{z) Gow on Part. 2. In Dodgson v. in the maiden name of defendant's wife, 

Bell, 5 Exch. 57, the question was, wliether and she had received dividends and paid 

the defendant was a partner in a joint-stock calls in respect of them, though without 

banking compan}' in which, before and at the knowledge of her husband, who never 

Winterstein (Mich. ), 53 N. W. 932 ; Newman v. Morris, 52 Miss. 402. Contra, Haas 
V. Shaw, 91 Ind. 384 [scmbk). See Swasey v. Antram, 24 Oh. St. 87. 

It is generally held that tliese statutes do not permit a wife to enter into partner- 
ship with her husband. Haas v. Shaw, 91 Ind. 384 ; Bowker v. Bradford, 140 Mass. 
521, 5 N. E. 480 ; Artman v. Ferguson, 73 Mich. 146, 40 N. W. 907 ; Payne v. Thomp- 
son, 44 Oh. St. 192, 5 N. E. 654; Board of Trade v. Hayden, 4 Wash. St. 263, 30 Pac. 
87; Fuller v. McHenry (Wis.), 53 N. W. 896. Contra, In re Kinkead, 3 Biss. 405 
(scmble) ; Francis v. Dickel, 68 Ga. 255 (scmblc) ; Toof v. Brewer, (Miss.) 3 So. 571 
(sevibfc); Suau v. Gaffe, 122 N. Y. 308, 25 N. E. 488 (Court of Appeals, Second Division : 
three judges dissenting) ; but see Hendricks v. Isaacs, 117 N. Y. 411, 22 N. E. 1029. 

Where a statute expressly empowers a husband and wife to contract witli one anothei 
they may become partners. Schla]>back v. Long, 90 Ala. 525, 8 So. 113. 

According to the Spanish-Mexican law, a wife may be a partner with her husband. 
Gosio ;;. De Bernales, Ry. & Moo. 102 ; Fuller v. Ferguson, 26 Cal. 546. 

A doubt was suggested in Rittenhouse v. Leigh, 57 Miss. 697, as to the right to 
hold a married woman as partner by estoppel, wliere the statute gives her power to 
do business and enter into partiiershiji. Although the statute permits her to engage in 
business, it might well be held that she could render herself liable only by actually doing 
so. Where she cannot form a partnership she certainly cannot be charged with the 
liability of a partner by estoppel. Gvvynn v. Gwynn, 27 S. G. 525, 4 S. E. 229; 
Weisiger v. Wood, (S. G.) 15 S. E. 597."^ 

If a married woman, not empowered bj' statute, engages in business as member of a 
partnership, the capital that she puts into the enterprise is liable for the firm debts, 
though she is under no individual liability. Weil v. Simmons, 66 Mo. 617 ; Frank 
V. Anderson, 13 Lea, 695, (aemblc). And she has the corresponding right to call for an 
account. Bitter v. Rathman, 61 N. Y. 512. Where a statute permits the partnership 
to be sued in the firm name this may be done though a married woman is a member ; 
since execution issues in such a suit against firm property only. Yarbrough v. Bush, 
69 Ala. 170. 

In Texas it is held that the husband is the partner. Miller v. Marx, 65 Tex. 131 ; 
Purdom v. Boyd, (Tex.) 17 S. W. 606. 



§ 22.] OF PARTNERS. 25 

wife inherited an interest in a partnership, and ho, instead of 
having the accounts settled, and the interest withdrawn, as he 
might do, permitted it to continue in the husiness, this would 
make him a partner, even without his actually withdrawing and 
appropriating funds. It certainly would have this effect wherever 
the common law so far prevailed that all her share of the profits 
were at once his. If, however, the property or interest were given 
to trustees for the sole benefit of the wife, free from any right or 
control of the husband, then the mere fact of its continuance in 
the business would not render him liable as partner, although it 
would probably cast this responsibility on the trustees ; as otiier- 
wise it would be a kind of limited partnership, without the 
precautions and safeguards of the law on that subject. And if 
the law of the State where the case occurred gave to the wife, so 
far as her property was concerned, the status of a single woman, 
she might then be a partner. 

§ 22. Aliens. — An alien friend can be a partner in a com- 
mercial house ; for there is nothing to prevent his holding any 
personal property, or in bringing and maintaining or defending 
any suits, (a) If the property of the firm were in part or in whole 
real estate, a question might arise. If the estate was in a country 
in which aliens could not hold land, the legal title certainly could 
not be in him ; but we think that courts of equity would, in that 
case, recognize the fact that the partners possess the legal title as 
trustees for the partnership. They would certainly do this where 
one of many partners alone holds the title, and there Avere no 
aliens ; and we see no sufficient reason why they should not, if 
one or more of the cestuis que trustent were aliens. (6) 

in any way meddled with them. The and attended company meetings, at which 

company's deed of settlement provided, only shareholders were entitled to he 

that the husband of a female shareholder present. It is to be observed, that, in this 

should not, merely in respect of his wife's last case, upon the authority of which 

sliares, become a member of the company, Dodgson i'. IJell was decided, great stress 

but that he nmst tirst comply with certain is laid by the judges upon the fact that 

conditions. The defendant not having the remedy attempted to be enforced 

fulfilled these conditions, it was held, that against the defendant, as a partner by 

he was not a member against whom a sci. virtue of his wife's interest, was an extra- 

/a. to levy exeaution under Stat. Geo. 4, ordinary statutable remedy. In both these 

eh. 46, § 13, could issue. The same was cases the question was as to who were 

held in Ness v. Angas, 3 Exch. 806, where partners inter se, and not as to who were 

the defendant's wife had bought shares partners with respect to third persons. In 

after her marriage, with the consent of her re Keene's Executors, 3 De G. M. & G. 

husband, but out of the proceeds of her 272. 

own estate ; and this although her hus- [See Miller v. Marx, 65 Tex. 131.] 
band had received some of the dividends, (n) Co. Litt. 129 b. 

signed receipts therefor as her agent, (b) See/)os<, oh. 11. 



26 



THE LAW OF PARTNERSHIP. 



[CH. III. 



The rule is quite otherwise as to alieu enemies. Here partner- 
ship is impossible, (c) And if there be a partnership with an 
alien friend, and war breaks out between the countries, it entirely 
suspends the partnership. From the language sometimes used, it 
might be inferred that a war would terminate and annul such 
])artnership altogether ; (tf) and it might have this effect in many 
cases. But where the terms and business and state of affairs of 
the partnership were such that an entire suspension of all rights 
and intercourse during the war would still leave the partnership 
in a condition to go on as before when the war ended, we should 
say that the partnership revived by peace, and did not need to be 
created anew. 

No alien enemy can bring any action in any court of the hostile 
country, (e) And this rule has been applied to a citizen then 
resident in a foreign country, on the ground tliat if he prevailed, 
and funds in satisfaction of his judgment were remitted to the 
foreign country, it would be a strengtheiiing of the enemy. (/) 

There is nothing to prevent a firm consisting wholly of aliens 
from having an agency in this country, and bringing any personal 
actions. Even if husband and wife form a commercial partner- 



(c) The reason is, that the existence of 
a state of hostility between two countries 
renders illegal all comnieicial intercourse 
between their citizens. Bristow v. Tow- 
ers, 6 T. R. 35 ; Potts v. Bell, 8 T. R. 548 ; 
Willison ;;. Patteson, 7 Taunt. 439; The 
Hoop, 1 C. Rob. Adni. 196 ; The Indian 
Chief, 3 C. Rob. Adm. 22 ; The Jonge 
Pieter, 4 C. Rob. Adm. 79 ; The Franklin, 
6 C. Rob. Adm. 127 ; Ex parte Bouss- 
raaker, 13 Ves. 71 ; Griswold v. Wadding- 
ton, 15 Johns. 57, 16 Johns. 438 ; The 
Rapid, 8 Craneh, 155 ; The Julia, 1 C. 
Rob. Adm. 181 ; Scholefield v. Eichel- 
berger, 7 Pet. 585 ; The San Jose Indiano, 
2 Gall. 268. See upon this subject a 
learned note to the case of Clemontson v. 
Blessing, 11 Exch. 135. 

{d) See Griswold v. Waddington, 15 
Johns. 57 ; 16 Johns. 438. A commercial 
partnership between citizens of the respec- 
tive belligerents was dissolved by the late 
rebellion. Woods r. Wilder, 43 N. Y. 164. 
But the general doctrine of the text seems 
to lie upheld by the weight of modern au- 
thority. Kenshaw v. Kelsey, 100 Mass. 
561 ; Cohen i-. N. Y. Life' Ins. Co., 50 
xs. Y. 610. See also Mutual Benefit Life 



Ins. Co. V. Hildyard, 37 N. J. L. 444, 
where the cases upon the efl'ect of war 
upon the abrogation of contracts are fully 
collected. N. Y. Life Ins. Co. v. Statham, 
93 U. S. 24. 

(e) Co. Litt. 129 b ; Anthon v. Fisher, 
Dougl. 649, note ; Brandon v. Nesbitt, 
6 T. R. 23 ; Willison v. Patteson, 7 Taunt. 
439 ; Griswold v. Waddington, 15 Johns. 
57 ; 16 Johns. 438 ; Hoare v. Allen, 2 
Dallas, 102. And the disability to sue 
attaches to an alien carrying on trade in 
an enemy's country, though he resides 
there also as consul of a neutral country. 
His individual character for purposes of 
trade is not merged in his national char- 
acter. Albretcht v. Sussman, 2 Ves. & B. 
323. The wife of an alien enemy is also 
disabled from suing in her own name on 
a conti'act made either before or during 
coverture. De Wahl v. Braune, 1 H. & 
N. 178. 

(/) M'Connell v. Hector, 3 B. & P. 
113 ; O'Mealey v. Wilson, 1 Camp. 482 ; 
Rolierts v. Hardy, 3 M. & S. 533 ; The 
Julia, 8 Craneh, 181 ; Griswold v. Wad- 
dington, 16 Johns. 438. 



§ 24.] OF PARTNERS. 27 

ship in a foreign country in wliicli such a partnership could leually 
exist, it would be ditiicult to say that they could not maintain an 
action together in this country, even as joint plaintiffs, however 
unusual such a thing might be. (^) 

§ 23. Insane Persons. — A fatuous or insane person could 
neither transact business on his own account nor as a partner. 
The degree of mental incapacity which should have this effect is 
hardly capable of definition ; and the question whether it existed 
might bo a difficult ([uestion of mixed law and fact. So, if one were 
generally sane, with attacks of insanity, or generally insane, with, 
lucid intervals, it might be difficult to apply the rule ; (A) but the 
rule itself certainly must be that no one is incapacitated from 
becommg a partner who is able to transact business of his own. 

To those under guardianship as spendthrifts or otherwise, or 
whom habitual intoxication has enfeebled and stultified, a similar 
rule must apply, (i) They are incompetent to transact business 
on their own account, and therefore incapable of entering into a 
commercial partnership. Q") 

§ 24 Corporations. — The question has arisen whether a cor- 
poration, considered as a person, may become a partner, either 
with another corporation or with individuals.^ Perhaps no other 
general rule on this subject can be stated than that a corporation 
may incur the liability of a partner as to third persons, although, 

(g) See ch. 9. [If they have been sued clearly be avoided by proof that at the 

and judgment obtained in the jurisdiction time it was made one of the parties "had 

where they do business, the wife's separate not an agreeing mind " through temporary 

property will be held on the judgment in intoxication. Pitt v. Smith, 3 Camj). 33 ; 

a jurisdiction where husband and wife can- Fenton r. Holloway, 1 Stark. 126. See 

not be partners. Toof v. Brewer (Miss.), Lightfoot v. Heron, 3 Younge Exch. 586. 
3 So. 571.] (/) See further, on the subject of per- 

(h) See the impressive remarks of Lord sons of insufficient mind to contract, 1 

Chancellor Thurlow, in Attorney-General Fonbl. E(|. b. I, ch. 2, § 3 ; 1 Story Eq. 

V. Pamther, 3 Bro. Ch. 441. ch. 6, § 229 et seq. ; 1 Pars. Cont. (5th ed. ) 

(i) Menkins v. Lightner, 18 111. 282; b. 1, ck 20 ; 2 Pothier on Obligations, 

Mansfield v. Watson, 2 Clarke, 111. So App. Ko. 3, p. 23. 
an agreement to forui a partnei"ship would 

* It seems clear that a corporation may be empowered by its charter to form a part- 
nership with an individual. See Butler v. American Toy Co., 46 Conn. 136. But 
where no such power is given by the charter the entrance of a corporation into a ]iart- 
nership is iil/ra vires. Gunn v. Central R. R., 74 Ga. 509 ; Whittenton Mills v. 
Upton, 10 Gray, 582; Hackett v. Multnomah Ry., 12 Ore. 124 ; 6 Pac. 659; Mallory 
V. Hanaur Oil Works, 86 Tenn. 598 ; 8 S. W. 396. 

In Allen v. Woonsocket Co., 11 R. I. 288. it was held that a corporation might 
become partner with an individual where the charter did not specify the business of the 
corporation ; the individual was to have no voice in the partnership business, and all tlie 
stock of the corporation was in the hands of a single owner. The case therefore turned 
on special facts and is of no weight as an authority. 



28 



THE LAW OF PARTNERSHIP. 



[CH. III. 



on general principles, it would be inconvenient, if not impossible, 
for a corporation, which is only a legal person, to enter into a full 
copartnership, either with another legal person or with natural 
persons. (Ar) 

§ 25. Firms. — [An already existent firm may enter into a 
partnership with an individual. In such a case the new partner- 
ship will commonly be made up of the individual partners of the 
old firm, together with the new partner. The old firm as such 
will not generally become a member of the new partnership.^ 
But it is possible for two firms (or for a firm and an individual) 
to enter into a partnership upon such terms that the old firms, 



(A) As the whole power of a corpora- 
tion is derived from its charter, it may 
well be questioned whether it could enter 
into a partnership for the transaction of a 
business different from the object for which 
it was chartered. And it seems that two 
or more corporations cannot consolidate 
theii funds, or form a partnership, unless 
authorized by exjiress grant or necessary 
implication. In Sharon Canal Co. v. Ful- 
ton Bank, 7 Wend. 412, the court say : 
" It cannot be necessary to decide whether 
it is in the power of the two corporations, 
who are the plaintiffs, to consolidate their 
stock or to form a partnership. General 
princi[»les are against the power of corpo- 
rations to do such acts. They have no 
powers but such as are granted, and such 
as are necessarily incident to the grant 
made to them. Corporations at conmion 
law have certain power.s, but not such as 
Vould authorize the forming of a partner- 
ship, or the consolidation of two corpora- 
tions into one." It is a different iiuestion, 
whether a corporation may not render it- 
self liable to third parties as a quasi part- 
ner by its acts ; and we know of no rea.son 
why this might not be the case. The sub- 
ject was before the court in Holmes v. 
Old Colony R. R. Co., 5 Gray, 58 ; but as 
the acts of the corporation were held not 
sufficient to constitute a {partnership lia- 
bility as to third parties, there was no 
direct decision upon the question whether 
a corporation could be held as partner. 
In Catskill Bank v. Gray, 14 Barb. 479, 
one of the questions presented was whether 



a corporation could be a partner with an 
individual even as to liability. The lan- 
guage of the court is : " Strictly, perhaps, 
corporations should be and are restricted 
from contracting partnerships with indi- 
viduals or corporations, and as between 
the parties to the contract, acting upon 
equal knowledge, a question of validity 
might be raised ; but a corporation may 
contract with an individual in furtherance 
of the object of its creation, the effect of 
which contract may be to impose upon the 
company, as respects the community, the 
liabilities of a partner. I cannot think 
that a corporation may so shape its con- 
tracts, relating to the business for which 
it was incorporated, as to share jointly 
with an individual in the profits of such 
business ; subtract its interest in the profits 
from the fund on wliich the creditors of 
the concern had a right to rely for the 
payment of the debts due to them ; and, 
when called upon by such creditors, be 
permitted to escape liability altogethei, on 
the ground that the profits were realized 
as the partner of an individual, which re- 
lation the corporation could not legally 
occupy. I know of no sound reason why 
a corporation, more than a natural person, 
who participates in the profits as such of a 
particular business in which it may law- 
fully engage, should not be holden to the 
public for losses." See Marine Bank v. 
Ogden, 29 111. 248. [Cleveland Paper Co. 
V. Courier Co., 67 Mich. 152; 34 N. W. 
556] 



1 Meyer v. Krohn, 114 111. 574, 2 N. E. 495. 



§ 28.] OF PARTNERS. 29 

and not their individual members, should be the partners in the 
new firm.^] 

§ 26. The Kinds of Partners. Different names are given to 
partners, desci-ibing their respective relations to the partnership. 
The principal names are : 1. Ostensible, or Public. 2. Secret, 
or Unknown. 3. Nominal. 4. Silent. 5. Dormant. 6. Retiring. 
7. Incoming. 8. General. 9. Si)ecial. 

§ 27. Ostensible or Public Partners. — This name indicates that 
the partner is " shown forth " to the world as one. If this is 
done with his own consent, all the liability of a partner attaches 
to him. There is no special way of holding such partner forth. 
It may be done by having his name in the firm or style of the 
partnership, or on the signs at the door, or by advertisement, or 
by circular letters. (0 Indeed, if a partner generally unknown 
is made known as such in any way to any one man, with his own 
consent, he is, so far as that man is concerned, an ostensible 
partner in every legal aspect and liability, as much as if adver- 
tised to the world. In this sense, therefore, there would be a 
difference between the words " ostensible " and " public," — the 
latter meaning shown as a partner to all the world, — although 
these two words are commonly used as synonymous.''' 

§ 28. Secret or Unknown Partners. — He is a secret partner 
who keeps Iiimself concealed from the public, and from all the 
customers of the partnership. (?«) We shall hereafter see that 
neither the word " Co.," nor any other public designation of a 
copartnership is necessary to bind all the partners. But this 
important distinction is to be taken : A partner is liable either 
because he is one in fact, or because he holds himself out or 
suffers himself to be held out as one. In the latter case, he is 
liable whether actually a partner or not, as we shall presently see. 
But, in the former case, he is not liable, unless it can be shown 
that he is actually a partner. If he is, he has gained nothing by 
being secret. Of course, so long as he is undiscovered he is safe : 
but as soon as he is found to be a partner, even if this be not 
until after an action has been brought against the other partners, 

{I) Partners whose names are not ex- (»i) United States Bank v. Binney, 5 

pressed in the firm, but who are simjily Mason, 185. [Harris v. Crary, 67 Tex. 
indicated by the word "Co.," are not 383, 3 S. W. 316.] 
dormant, but ostensible, partners. God- 
dard V. Pratt, 16 Pick. 428. 

1 III re Hamilton, 1 F. R. 800. See also Meador v. Hughes, 14 Bush, 652. 

2 In Harris v. Crary, 67 Tex. 383, 3 S. W. 316, the term "ostensible partner" is 
used in the sense of "nominal partner." 



so 



THE LAW OF PARTNERSHIP. 



[CH. III. 



he becomes liable ; because, although he added no credit to the 
firm, and permitted no debt to be incurred on his credit, he is 
equally liable as if he had done this, from the mere fact that he 
shared the advantages of the partnership. 

If a secret partner is announced as a partner to a customer, 
without his own consent or connivance or ratification, his rights 
are wholly unaffected by the customer's knowledge, and dc)>end 
entirely upon the fact of his partnership. Not so, as we have 
seen in the preceding section, if he permits himself to be made 
known as a partner to a customer.^ 

§ 29. Nominal Partners. — Every ostensible partner is a nomi- 
nal or known partner ; but by this designation is usually meant, 
that the partner is only nominally one. (n) That is, he is so held 
forth as a partner, with his own consent, by any of the means 
usually employed for that purpose, as to make him liable as a 
partner on the ground that he has given his credit to the firm, 
and authorized engagements on his account, (o) It follows, 



(/t) Ex parte Chuck, 8 Bing. 469. See 
Cunier v. Silloway, 1 Allen, 19 ; Lindsey 
V. Edniin.ston, 25 111. 359 ; Jacobsen v. 
Hennekenius, 1 Bro. P. C. 432 ; Fox v. 
Clifton, 6 Bing. 795 ; Hicks v. Cram, 17 
Vt. 449. Hence one who is merely a 
nominal partner with another man may 
be called by him as witness. He is not 
incompetent on the score of interest. 
Parsons v. Crosby, 5 Esp. 199 ; Mawman 
V. Gillett, 2 Taunt. 327. 

(o) The ground of the liability of a 
nominal partner is thus stated in a leading 
case, Waugh v. Carver, 2 H. Bl. 235: "A 
case may be stated, in which it is the clear 
sense of the parties to the contract that 
they shall not be partners ; that A. is to 
contribute neither labor nor money, and, 
to go still farther, not to receive any j)rofits. 
But, if he will lend his name as a partner, 
he becomes as against all the rest of the 
world a partner, not upon the ground of 
tlie real tran.saction between them, but 
upon principles of general policy, to pre- 
vent the frauds to which creditors would 
be liable, if they were to suppose that 
they lent their money upon the apparent 
credit of three or four persons, when in 
fact they lent it only to two of them, to 
whom, without the others, they would 
have lent nothing." So in Ex parte V/at- 



son, 19 Ves. 461, Lord Eldon says : "There 
is a wide difference between a dormant and 
nominal partner. The former is liable in 
respect of the j)rofits ; . . . but if one, 
retiring or coming into the trade, suffers 
his name to be used, it is of no con- 
sequence whether he has a salary or sura 
of money, to be paid by others, or to be 
got out of the profits. It is the use of 
the name that makes him liable, as one of 
the persons by and to whom everything is 
bought and sold." So, in Hicks v. Cram, 
17 Vt. 449, the court say: " It is the rep- 
resenting one's self, or suffering one's self 
to be represented, as a partner, that creates 
a liability to third persons ; and this is 
sufficient to create a liability, notwith- 
standing the truth should prove to be, that 
the person so suff"ering himself to be held 
out as partner, in fact was not so. This 
is in order to preserve good faith and pre- 
vent fraud, and is almost the only ground 
of an estoppel m pais. If one man has 
made a representation which he expects an- 
other may or will act upon, and the otlier 
does in fact act upon it, he is esto{i])ed 
to deny the truth of the representation. 
So, too, equally, when one remains silent, 
and suffers another to make the representa- 
tion." 



1 Milmo Nat. Bank v. Carter (Tex.), 20 S. W. 836. 



§ 31.] OF PARTNERS. 31 

therefore, that if a person suffers himself to be regarded as a 
partner by any customer of the firm, to him he is liable as if he 
were one, although he is in fact no partner, and not generally 
supposed to be one. The nominal partner is the converse of the 
secret partner. 

§30. Silent Partners. — This name is pro])crly and generally 
ai)plied to those who take no active part whatever in the business 
of the firm, and exercise none of the rights of a partner, except 
that of receiving their share of the profits from time to time. He 
is a silent partner, whether his name be made known in any way 
as a partner or not. There is, however, a very common use of 
the word " silent," which differs somewhat from that above stated. 
It seems to be thought that he only is a silent partner who is 
silent to the world in respect to his interest in the firm, as well 
as silent within the firm in its transaction of business. In this 
sense, a silent partner is one who is both inactive and unknown. 
And there are those who go so far as to think the silence to the 
world to be the main thing, understanding by the phrase " silent 
partner" one who is not known as such, whether active or other- 
wise ; thus making the word " silent " synonymous with the word 
'•secret." But the definition first above given is the most reason- 
able, and is best sustained. 

§31. Dormant Partners. — This phrase also is used in some- 
what different senses. Indeed, there is much confusion and 
inaccuracy in the common use of the three words, — " secret," 
" silent," and " dormant." Many use this word as if it meant 
only unknown and secret ; and apply the designation of dormant 
or sleeping to partners whose names are concealed, however 
awake and active they may be in the business of the firm. 
Others consider the word as properly applied to those only who 
are wholly inactive in the business, whether known to have an 
interest or not. We think, however, the word implies both the 
qualities of secrecy and inactivity. (^) It seems to be most 

(p) These two qualities are attributed declarations of the acting, avowed part- 
to the dormant partner in the following ners : it may enable them to reach the 
expression of the difference between a dormant one, if the transaction is one in 
dormant and an open partnership. " It which he had an interest, but does not 
seems to me to be this : where the names alter its nature. The partnership remains 
of the partners do or do not appear in dormant as to all whose names do not 
their accounts, their advertisements, or appear on its transactions. The dormavf, 
their paper, — where the business is carried the sleeping, inactire partner may be known 
on in the name of all, it is open ; but, if by reputation, or the declaration of his 
any are kept hack, it is dormant ; that the copaitner ; but these do not make him an 
knowledge which the pulilic may have is avowed or active one, without the avowal 
not the test, when it is acquired from the and pledge of his name or paper." Per 



32 THE LAW OF PARTNERSHIP. [CH. III. 

coraraoii and most convenient to use the word as indicating a 
partner who both keeps himself concealed, and who also refrains 
from any active interference with the business or management of 
the firm. But the word is so often used as merely synonymous 
with " unknown," that we shall frequently be obliged to employ 
it or refer to it in this sense. 

§ 32. Retiring Partner. — He is one who leaves an existing firm. 
In law, as we shall see, the going out of a partner, by his own act, 
or decree of court, or by death, terminates that partnership. But 
in practice it is otherwise. Some old firms have continued to use 
the same style, and to transact their business as one and the same 
copartnership, with all the continuity of a corporation, although 
not only all the original members, but all who immediately suc- 
ceeded them, have passed away. In some of the commercial cities 
of Europe, there are said to be active firms established under their 
present names by the great grandfathers of those who are now 
members. In this country it is, however, more common to an- 
nounce these changes by a corresponding change in the style of 
the firm. 

§ 38. Incoming Partner. — This phrase designates a person who 
enters into an existing copartnership, and becomes a member of 
it. Here it may be said, as before, that any such change as the 
addition of a new member terminates the former copartnership in 
law and creates a new one. (/*jj) But in practice it is not so ; the 

Baldwin, J., in Winship v. Bank of the or traders with whom they engage in a gen- 
United States, 5 Pet. 573. In Mitchell v. eral partnership of all their stock and ef- 
Dall, 2 H. & G. 159, however, and Bank fects, yet not suffering their names to appear 
of St. Mary's v. St. John, 25 Ala. 566, in the copartnership firm, but at the same 
persons seem to have been held dormant time receiving a proportionate share of the 
partners, who, though tiieir names were i>rotits arising out of their joint trade, 
concealed, took an active part in the busi- bearing equally their risk of loss ; and 
ness of the firm. See Lloyd v. Archbowle, such are usually styled dormant partners." 
2 Taunt. 324 ; Kelly v. Hurlburt, 5 Cowen, See North v. Bloss, 30 N. Y. 374 ; Waite 
534 ; Hoare v. Dawes, 1 Dong. 371 ; Ex v. Dodges, 34 Vt. 181. [That a dormant 
parte Watson, 19 Ves. 461 ; Shropshire v. pai-tner must be both concealed and inact- 
Shepherd, 3 Ala. 733. The definition and ive, see Elmira Iron & Steel R. M. Co. v. 
illustration of dormant partner.ship in Harris, 124 N. Y. 280, 26 N. E. 541; 
Watson on Partnership, p. 46, seems compare Metcalf v. Officer, 2 F. R. 640. 
accurate: " Sometimes all the partners in Where the firm name does not contain 
tradedonotappearostensibly to the world, the name of partners, none of the 
though they share in the profits and loss ; partners seem to be dormant : since credit 
and it is not unusual for gentlemen of is given, not to known partners, but to all 
large and independent fortunes to embark who in fact are interested. Clark v. Flet- 
very considerable sums of money in trade, cher, 96 Pa. 416.] 

they being oftentimes ignorant of the {pp) Mudd v. Bast, 34 Mo. 465. 

science of commerce, and meaning to de- When two partners enter into another 

pend entirely upon the skill of merchants partnership with a third person they are 



§ 36.] OF PARTNERS. 33 

old firm being " kept up," as the common phrase is, by former 
members going out from time to time, and new members 
coming in. 

§ 34. General Partner. — This is a ncw phrase with us, and is, 
at least in our sense of it, unknown in the English law. It means 
one who is that member of a Limited Partnership, under our stat- 
utes, who transacts the l)usiness, whose name is used in the firm, 
and who is liable for all the debts and obligations of the firm, to 
their full amount. 

§ 85. Special Partner. — He is One who Supplies a certain 
amount of capital, and who, if he complies with all the re(|uire- 
ments of the statutes, is not liable for the debts of the firm beyond 
the amount which he contributes to the capital. 

§ 36. Sub-Partner. — [Sub-partner is the name often given to 
one with whom a partner shares his profits by agreement.^ Since, 
however, such a person is neithei- in fact a partner nor is he held 
liable as a partner, the term sub-partner is misleading and not to 
be commended.] 

We have been somewhat precise in defining these different 
classes or kinds of partners, because it will be seen in our subse- 
quent chapters that especial rights, obligations, liabilities, and 
remedies belong to them severally. 

in the new partnership as individuals, amongst the three. 'Warner v. Smith, 
and the profits are to be divided equally 9 Jur. N. s. 168. 

1 Nirdlinger v. Bernheimer, 133 X. Y. 45 ; 30 N. E. 561, 



34 THE LAW OF PARTNERSHIP. [CH. IV. 



CHAPTER IV. 

OF THE PURPOSES AND KINDS OF PARTNERSHIP, 

§ 37. Purposes for •which Partnerships may be formed. — Although 
partnerships are usually formed for commercial purposes, the}' are 
not always so, and tliere is scarcely any occupation which an indi- 
vidual can legally pursue that may not be the subject of partner- 
ship. In this counti-y we have a far wider extent in the variety 
of purposes for which partnerships are established, than anywhere 
else. Thus, we have partnerships not only for every known 
branch of commercial business, but for all kinds of farming, (a) 
or manufacturing, mining, (hy stage-driving, fishing, hunting, 

(a) See opinion of Gould, J., in Coope estates are quite different in the contempla- 

V. Eyre, 1 H. Bl. 37 ; Allen v. Davis, 13 tion of this court ; a colliery being always 

Ark. 28; Lansdale c. Biashear, 3 T. B. considered as a trade, the profits accruing 

Mon. 330 ; Quine v. Quine, 9 Smedes & from day to day as in all trading con- 

M. 155; Roach v. Perry, 16 111. 37. cerns." Story r. Ld. Winsor, 2 Atk. 630 ; 

Jointly buying and selling cattle may con- Wien v. Kirton, 8 Yes. 502; Crawshay 

stitute a tiading paitnersliip. Smith v. v. Maule, 1 Swanst. 495, 518 ; Fereday 

Collins, 115 Mass. 388. v. Wightwick, Tamlyn, 250 ; Jeffreys v. 

{/)) In England mines have never been Smith, 1 Jac. & W. 298. See Beatty v. 

regarded in equity as real estate, but uni- Bates, 4 Y. & C. Exch. 182 ; Roberts 

fornily as the regular subject and substra- v. Everhardt, 1 Kay, 148. The whole sub- 

tum of a trade. In Williams v. Attenbor- ject of partnership in mines, as treated in 

ough. Tarn. & Russ. 70, the language of the the English courls, is considered in a sepa- 

Lord Chancellor is : "Collieries and landed rate chapter in Collyer on Part. b. 5, ch. 2. 

1 A mining partnership is created when the owners of a mine operate it for their 
joint benefit. Manville (-. Parks, 7 Col. 128; Meagher f. Reed, 14 Col. 335, 24 Pac. 
681 ; Snyder v. Burnham, 77 Mo. 52. 

Mining partners own the mine in common ; and therefore in case of an action against 
the partnership only the shares of those partners who were served with jirocess can be 
sold on execution. Santa Clara Mining Assoc, v. Quicksilver Mining Co., 17 F. R. 
657, 8 Sawy. 330. 

There is no delectus pcrsonarum ; therefore a partner may convey his share in the 
mine without the consent of his copartners, and the a.ssignee becomes a i)artner. Nisbet 
V. Nash, 52 Cal. 540 ; Meagher r. Reed, 14 Col. 335, 24 Pac. 681. And the partner- 
ship is not dissolved by the death or bankruptcy of a partner, or by as.=ignment of a 
partner's interest to a stranger. Kahn v. Central Smelting Co., 102 IT. S. 641 ; Lamar 
V. Hale, 79 Va. 147. There is no fiduciary relation between the partners ; one jiartner 
may therefore buy up the share of another, and hold it against his copartners. Bissell 
V. Foss, 114 U. S. 252. 

A mining partnership imposes on the partners the liabilities of a true partnership, 
so that each is liable for the entire amount on all firm contracts. Stuart v. Adams, 89 



§38.] 



OF THE PURPOSES AND KINDS OP PARTNERSHIP. 



35 



lumbering, and the like, as well as the business of lawyers, (c) 
physicians, ((i) mechanics, artists, laborers, and, indeed, for almost 
all otlicr employments, (e) 

§ 38. Partnerships to deal in Land. — After some question, it 
seems to be settled, that there may be a partnersliip for the buy- 
ing and selling of land. (/) It is to be remembered, however, 
that the Statute of Frauds, and our Statutes of Conveyance, which 
re([uire that all interests in land should be transferred by a writ- 
ing signed and sealed by the grantor, and acknowledged and 
recorded, thus determine the legal title by different evidence and 
on different principles from those which ai>ply to personalty. 
This has sometimes an important effect upon the rights and obli- 
gations of partners in land speculations, and of those who deal 
with them. We have already alluded to this subject, and shall 
consider it hereafter, (/y) 



(c) Marsh v. Gold, 2 Pick. 286 ; West- 
eilo p. Evertson, 1 Wend. 532 ; Warner v. 
Griswold, 8 Wend. 665 ; Living.stou v. 
Cox, 6 Barr, 360 ; Smith v. Hill, 13 Ark. 
173. See Jones ». Caperton, 15 La. Ann. 
475. 

(d) Allen v. Blanchard, 9 Cow. 631 ; 
Tlionipsou p. Howard, 2 Ind. 245. 

(f) Thus, there may be a partner.shii» 
in a terry. Bowyer v. Anderson, 2 Leigh, 
550. An association for carrying personal 
property for hire in vessels is a commercial 
partnership by the laws of Louisiana. Hef- 
ferman o. Brenham, 1 La. Ann. 146. Ship 
agents and ship brokers may be in partner- 
shii* as to the profits of their resi)ective 
commissions. Waugh c. Carver, 2 H. Bl. 
235. See Bovill v. Hammond, 9 D. & K. 
186 ; Cheap v. Cramond, 4 B. & A. 663. 
Private associations and clubs for benevo- 
lent and other purposes have been regarded 
so far as partnerships that their members 
are subject to liabilities similar to those of 
partners. Beaumont r. Meredith, 3 Ves. 
& B. 180. See Delauney v. Strickland, 
2 Stark. 416. But their liability seems to 
rest on the authority given to the agents 
rather than on partner-ship. The points 
of difference between such associations and 
trading partnerships are stated and illus- 



trated in Flemyng v. Hector, 2 M. & W. 
172. See post, § 60. 

(/) Lands being now so far subject to 
commercial conditions, by the aid of equity, 
as to be capable of being held as incident 
to commercial partnerships, there would 
seem to be no sufficient reason why they 
may not, on the same principles, and by 
the same equitable conversion, be the sub- 
stratum itself of a copartnership. The 
later cases, both in England and in this 
country, leave little or rather no rooui for 
doubt upon this point. Dale v. Hamilton, 
5 Hare, 369 ; Potts v. Waugh, 4 Mass. 
424 ; Fall River Wh. Co. v. Borden, 10 
Cash. 458 ; Smith r. Burnham, 3 Sumn. 
435 ; Kramer v. Arthurs, 7 Barr, 165 ; 
Brady i-.' Calhoun, 1 P. & W. 140 ; Olcott 
V. Wing, 4 McLean, 15 ; Smith v. Jones, 
12 Me. 332 ; Dudley v. Littlefield, 21 Me. 
418 ; 1)1 re. Warren, Davies, 320 ; Ludlow 
V. Cooper, 4 Oh. St. 1 ; Chester i\ Dicken- 
son, 54 N. Y. 1. See Patterson v. Brew- 
ster, 4 Edw. Ch. 352; Claggett r. Kilbourne, 
1 Black, 346. [Corey v. Cadwell, 86 Mich. 
570 ; 49 N. W. 611 ; Yeoman v. Lasley, 
40 Oh. St. 190 ; Hulett r. Fairbanks, 40 
Oh. St. 233 ; Canada v. Barksdale, 76 Va. 
899. See fost, § 67.] 

((/) See ante, § 6, and -post, ch. 12. 



Cal. 367, 26 Pac. 970. But since it is a non-trading partnership, one partner has no 
authority to bind the firm by a firm note. See post, § 85. 

The owners of a mine may of course, if they choose, form an ordinary partnership 
for the purpose of carrying on the niine by entering into a partnership agreement. 
Quinn v. Quinn, 81 Cal. 14, 22 Pac. 264 ; Randall i;. Meredith (Tex.), 11 S. W. 170. 



36 



THE LAW OF PARTNERSHIP. 



[CH. IV. 



§ 39. Exercise of an Office. — It is obvious that there can be no 
partnership in a mere personal office, or in the discharge of its 
duties; as in the office of guardian, trustee, executor, or the 
like, (/i) These offices are often held by two or more persons 
together; but their powers and duties, and relations generally, 
are governed by rules entirely distinct from those of partnership. 

Tliere are additional and decisive reasons against the exercise 
of the powers or the discharge of the duties of any public office by 
a partnership. It might seem as if there were some offices, as 
that of postmasters, or of examiners of steamboats, or the like, 
which might be given to a firm ; but the principle of personal 
selection and personal responsibility make it difficult, if not 
imj)ossible,that a firm should hold such an appointment, although 
persons holding it sometimes become partners, and share in the 
profits of the appointment, (i) 

§ 40. Kinds of Partnership. — Partnerships may be general or 
special. In theory, it is said they may be universal ; but an 
instance can seldom occur in which tlie partners own everything 
in common, without the reservation of any private and exclusive 
property of either of them, (j) We have, however, in this country, 

(/() Thus, the office of sheriff's bailiff is the articles of agreement it was stipulated 

personal, and cannot be held by two in that B. should be a partner with A. in his 

partnership. Jons v. Perchard, 2 Esp. business, and " that the emoluments aris- 

507. See Canlield v. Hard, 6 Conn. 180. ing from the said offices, clei-k.ships, and 

Upon the same principle a mercantile stewardships as sliould be held by eitlier 

partnership, though it may act as execu- of them, the said- A. and B., during the 



tor, cannot be appointed guanl,ian. De 
Mazar v. Pybus, 4 Ves. 644. Where, by 
the usage of the herald's office, a herald 
and pursuivant were always in attendance, 
who shared the profits of any business 
which was begun while they were jointly 



partnershij), should be considered as part- 
nership property, and be distributable ac- 
cordingly." It was held that the above 
contract was not void as being an agree- 
ment for the sale of an office, either within 
the 5 & 6 Edw. 6, ch. 16, or within the 49 



on duty, it was held that they were in the Geo. 3, cli. 126. Sterry v. Clifton, 9 C. B. 
situation of copartners, and might main- 110. 



tain a joint action (for making out a pedi- 
gree) against the defendant, though he had 
contracted only with the herald. Town- 
send V. Neall, 2 Camp. 190. On the other 
hand, the appointment of one of a firm to 
the office of shcriH's replevin clerk will not 
enable the finn to bring a joint action for 
the expenses of preparing a replevin bond, 
although it was executed, and the stamp 
for it proviiJed, in their office. Brandon 
V. Hubbard, 4 .T. B. Moore, 367. See 
Clarke v. Eichards, 1 Y. & C. Exch. 3.51. 
A., an attorney holding numerous lucrative 
clerkship.s, stewardships, and other offices, 
entered into copartnership with B. By 



(i) See Caldwell v. Lieber, 7 Paige, 
483. 

(j) United States Bank v. Binney, 5 
Mason, 183. Story, J., said: "There is 
probably no such thing as a universal 
partnership, if by the terms we are to 
understand that everything done, bought, 
or sold is to be deemed on partnership 
account. Most men own some real or 
personal estate which they manage exclus- 
ively for themselves." [The so-called 
" partnership " between husband and wife, 
according to the Spanish-Mexican law, is 
however a universal partnership. Fuller 
V. Ferguson, 26 Cal. 546.] 



§40.] 



OF TUE PURPOSES AND KINDS OP PARTNERSHIP. 



37 



some associations whicli might perliai)S be regarded as universal 
partnerships, (/c) Special partnershijjs relate only to an owner- 
ship or use or employment by partners of one thing, or one cargo, 
or one mercantile adventure, (l) It has been said that if a note 



{k) Tlie case of Goe.s(;le v. Biiiieler, 14 
How, 589, would seem to establish, not 
only that such a partnership may exist, 
but that, under able administration and 
conduct, it is not inconsistent with a hifjh 
degree of individual social prosperity. 
The defendants in the case were members 
of a society called Se|)aratists, which 
emigrated from Germany to the United 
States in 1817, and settled in Ohio, In 
1819, articles of association were drawn 
up and signed by the members of the 
society, consisting of fifty-three males 
and one hundred and four females. By 
these articles, the signers surrendered all 
their individual property, real or personal, 
present or future, into the hands of three 
directoi's, elected annually by themselves. 
These officers were to conduct the business 
of the society, to manage all its property, 
and to account to the society for all their 
tiansactions. In 1824, the original articles 
were amended. An entire union of prop- 
erty, and an absolute renunciation of 
private ownership, were declared. Provi- 
sions were made for the admission of new 
members. The directors were to conduct 
tlie allairs of the society ; to apply them- 
selves for its benefit ; to provide for the 
boarding, lodging, and clothing of its 
members ; to provide for the children ; to 
determine disputes, &c. Other of the new- 
provisions related to the general welfare of 
the society. In 1832, a charter of incor- 
poration was granted them, in accordance 
with which they adopted a constitution, 
embodying, with others, substantially the 
same provisions as those contained in the 
articles of association above referred to. 
Tlie extent of the prosperit}', which, under 
this modified species of communism, the 
association had attained in the space of 
about thirty years, may be seen in the 
following extracts from the opinion of Mr. 
Justice McLean : " It appears, by great 
industrj', economy, good management, 
and energy, the settlement at Zoar has 
prospered more than any part of the sur- 
rounding county. It surpasses probably 
all other neighborhoods in the State in 



the neatness and jinjiiuctiveness of its 
agriculture, in the mechanic arts, in manu- 
facturing by machinery. The value of the 
property is now estimated by complainants' 
counsel to be more than a million of dollars." 
Further : "Tlie people . . . are proved to 
be moral and religious. It is said, that, 
although the society has lived at Zoar for 
more than thirty yeai's,no criminal jn-osecu- 
tion has been instituted against any one of 
its members." There is no legal objection, 
it seems, to such an association. See an 
example ^of a similar association called 
"The Harmony Society." Baker?;. Nach- 
trieb, 19 How. 126. See Lyman v. Lyman, 
2 Paine C. C. 11. [Hamilton v. Halpin, 
68 Miss. 99, 8 So. 739. In Colton v. 
Stanford, 82 Cal. 351, 23 Pac. 16, several 
capitalists a.ssociated for the purpose of 
controlling the operations of various rail- 
roads and entering into other enterprises. 
This was regarded as a partnership.] 

(I) The authority which is usually 
referred to for the distinction between 
general and special partnerships is a dictum 
of Lord Mansfield in Willett v. Cliarnbers, 
Cowp. 814. "Let us see, then," said he, 
"what was the nature of the partnership 
afterwards entered into between Dodley 
and the present defendant : whether it 
was a general partnership in all Dodley's 
business, or confined to one particular 
branch of it only ; for, to be sure, there 
may be such a confined partnership." 
Veiy many cases have since recognized and 
illustrated the distinction. Salmons v. 
Nissens, 2 T. R. 674 ; Robey v. Howard, 
2 Stark. 557 ; Holmes v. Higgins, 1 B. & 
C. 74 ; De Berkom v. Smith, 1 Esp. 29 ; 
Livingston v. Roosevelt, 4 Johns. 265, 
270 ; Post V. Kimberly, 9 Johns. 470 ; 
Mumford v. Nicoll, 20 Johns. 611 ; Ensign 
V. Wands, 1 Johns. Cas. 171 ; Reynolds 
V. CHeveland, 4 Cow. 282 ; Cumpston v. 
McNair, 1 Wend. 457 ; Mifflin v. Smith, 
17 S. & R. 165 ; Bentley v. White, 3 B, 
Mon. 263 ; Benson v. McBee, 2 McMull. 
91 ; Solomon v. Solomon, 2 Kelly, 18 ; 
Rijiley V. Colby, 23 N. H. 438 ; Petripin 
V. Collier, 1 Burr, 247. 



38 THE LAW OF PARTNERSHIP. [CH. IV. 

or bill of exchange be signed or indorsed by two or more persons 
jointly, this is a case of special partnership between those persons 
as to that note or bill, (w) The name, however, or the distinc- 
tion, is of little use, for all the laws of partnership apply as far, 
and only as far, as the partnership extends ; and there is no dis- 
tinct dividing line between general partnerships and those which 
have been called special. And the designation, by statute, of the 
partner in a limited partnership, who is liable only to the extent 
of the capital he supplies, as " special partner," is an additional 
reason for the disuse of the phrase " special partnership," in the 
sense above stated. 

Joint-stock companies will be treated by themselves. They are 
much used in England, and are there regulated by statute. Here 
they were quite common formerly. But incorporation may here 
be obtained with great facility for any legitimate purpose ; and 
wise and practical laws, in many of our States, give to corpor- 
ations all the freedom and all the facilities they can desire, and 
limit the responsibility of members as narrowly as a due regard 
for public safety, and, indeed, the safety of the membei's, permits ; 
and joint-stock companies are now comparatively rare. 

Limited partnerships, to which we have already alluded, we shall 
speak of more fully in a subsequent chapter, (w) 

(m) Gow on Part. 6 ; 3 Kent (8th ed.), the bill was payable. This verdict does 

p. 28. The only authority for considering not appear to have been disturbed. So 

such joint promise or indorsement as con- that, the result of the case being consid- 

stituting a partnership is the case of ered, it can hardly be said to be authority 

Carvick v. Vickerj', 3 Doug. 653, note, for the position that joint promisors or 

There the action was by the indorsee of a joint indorsers of a bill or note are quoad 

bill of exchange drawn upon defendants, hoc partners ; since the second verdict 

the Maydwells, by father and son, and could only have been upheld on the ground 

pa j-able "<o MS or oi<r orf?er," but indorsed that the defendants were not i)artners. 

only by the son. The father and son were The case does not seem to rest on sound 

admitted not to be partners. At the first principles, and is unsupported by any 

trial Ld. Mansfield nonsuited the plaintiff, other English authorities. In this coun- 

because the bill had not been indorsed by try, it has been distinctly repudiated. lu 

both the parties to whose order it was Willis v. Green, 5 Hill, 232, Nelson, C. J., 

payable. But a rule being obtained to says : " It was once supposed, in a like 

show why there should not be a new trial, case, that the indorsers were partners 

the court were unanimously of opinion quoad the particular transaction ; but tliat 

that the Maydwells, by making the bill doctrine was repudiated when the case 

payable "to our order," had made them- afterwards came on for trial before Lord 

selves partners as to this transaction, and Mansfield." Sayre v. Herick, 7 W. & S. 

the rule was made absolute. Upon the 383 ; Hopkins v. Smith, 11 Johns. 161 ; 

second trial, before Ld. Mansfield, a verdict Shepard v. Hawley, 1 Cojin. 367. See 

was again found for the defendants on the Mitflin v. Smith, 17 S. & R. 165. 

same ground, that the indorsement should (n) ^ee post, ch. 17. 
have been made by both parties to whom 



§ 42.] WHO ARE PARTNERS. 39 



CHAPTER Y. 

WHO ARE PARTNERS. 

§ 41. The Test of Partnership. — There is ordinarily no difficulty 
in establishing the existence of a partnership. The relation of 
the parties is usually fixed by a written agreement, known as 
" articles of co-partnership," which in almost every case provides 
at the outset for the formation of a partnership, and declares the 
parties to be partners. But in some cases an agreement, either 
oral or written, is entered into by the parties concerned, which 
does not profess to create a partnersiiip, yet it is contended that 
the effect of the agreement is to create one. A question of much 
difficulty is then presented, namely ; whether the agreement, the 
terms of which are known, does in fact create that sort of relation 
between the parties which the law considers a partnership. 

§ 42. Former doctrine in England. Sharing Profits. — Upon 
this point the view held l)y the English courts has within a few 
years undergone a remarkable change. Up to the year 1860, it 
appeared to be the law of England that the mere fact of parti- 
cipation in the profits of a business as such, made one a partner 
as a matter of law. This was combined with the doctrine that 
though such a partnersiiip existed as to third persons, a different 
rule must be applied to determine whether persons were partners 
inter se} 

^ The general doctrine appears to have been founded upon the language of De Grey, 
C. J., in Grace v. Smith, 2 W. Bl. 998. There Smitli & Robinson dissolved partnership. 
Hut, Robinson continuing the business, Smith left behind in the trade 4,000/., for 
which he was to receive five per cent, interest, and an annuity of 300/. a year. The 
question being whether Smith & Robinson were general partners, De Grey, 0. J., said: 
" Every man who has a share of the profits of a trade ought also to bear his share of 
the loss. And if any one takes part of the profits, he takes part of that fund on 
which the creditor of the trader relies for his payment ... I think the true criterion 
is to inquire whether Smith agreed to share the jirofits of the trade with Roliiuson, or 
wlicther he only relied on those profits as a fund of payment." — In Waugh v. C;)rver, 
2 H. Bl. 235, the distinction between [lartners inter se and partners as to thin! persons 
was first put forward. The (|uestion was, whether the defendants, the two Carvers and 
Giesler, were liable as ]iartners upon the true construction of certain articles of agree- 
ment. The material portions of their contract were these : The two Carvers, merchants 
and ship agents, residing in Gosport, agreed with Giesler, also a merchant and ship 
agent, that, for their mutual benefit, he should establish himself at Cowes, and there 



40 THE LAW OP PARTNERSHIP. [CH. V. 

This rule was however, confined to the case of participation in 
the net profits of a business ; one who had a share in the gross 

carry on a house in the agency line. The two Carvers were to recommend ships to 
Giesler, and were to receive a share in his commissions on such shijis, and in the dis- 
count of the bills of the tradesmen employed on them. Giesler was to act by the 
advice of the Carvers, to recommend ships to them, and to receive a share in their 
commissions on them, and in their discounts on tradesmen's bills, and also certain pro- 
portions of warehouse rent and agency. Eyre, C. J., said: "It is plain upon the 
construction of the agreement, if it be construed only between the Carvers and 
Giesler, that they were not, nor ever meant to be partners . . . But the question is, 
whether they have not, by parts of their agreement, constituted themselves partners 
in respect to other persons. The case, therefore, is reduced to the single ])oint, 
whether the Carvers did not entitle themselves, and did not mean to take a moiety of 
the profits of Giesler's house, generally and indefinitely as they should arise, at certain 
times agreed upon for tiie settlement of their accounts. That tliey have so done is 
clear upon the face of the agreement; and ujion the authority of Grace v. Smith, he 
who takes a moiety of all the profits indefinitely shall, by operation of law, be made 
liable to losses, if losses arise, upon the principle that, by taking a part of the profits, 
lie takes from the creditors a part of that fund vvhicli is the proper security to them for 
the payment of their debts." Waugh v. Carver was followed by later cases : Hesketh 
V. Bianchard, 4 East, 144 (scmblc) ; Cheap v. Cramond, 4 B. & Aid. 663 ; Barry v. 
Nesham, 3 C. B. 641 ; Heyhoe v. Burge, 9 C. B. 431. 

The distinction between profits as such and a sum equal to profits appears to have 
been introduced by Lord Eldon, who however professed to follow authority. In Ex 
parte Hamper, 17 Ves. 404, the facts were that Thomas & Rogers had been partners in 
a mercantile adventure to Cadiz, Rogers furnishing goods, and Tliomas going out with 
and selling them. Before the goods were all sold, Rogers entered into a new arrange- 
ment with Thomas, as follows : "I do agree to give Thomas one-half the profits he 
makes on my goods instead of a commission, after shipping, freiglit, and every expense 
paid ; I pay Thomas his passage out." This agreement was acted upon by the parties, 
and letters were in evidence from Thomas to Rogers, in which Thomas styled himself 
a ])artner, and other expressions indicating the existence of a partnership between 
Rogers and himself. 

Lord Eldon said : " The cases have gone to this nicety, upon a distinction so thin 
that I cannot state it as established upon due consideration, that, if a trader agrees to 
pay another person, for his labor in the concern, a sum of money, even in prf)portion 
to the profits, equal to a certain share, that will not make him a ])artner ; but if he 
has a specific interest in the profits themselves, as profits, he is a partner." Afterwards, 
in the same case, as if in explanation, and certainly in confirmation, of this, he says : '* It 
is clearly settled, though I regret it, that if a man stipulates that, as the reward of his 
labor, he shall have, not a specific interest in the business, but a given sum of money, 
even in proportion to a given quantum of the profits, tliat will not make him a part- 
ner ; but if he agrees for a part of the profits as such, giving him a right to an account, 
tliough having no ]iroperty in the capital, he is, as to third jiersons, a partner." In 
Ex pa,rte Kowlandson, 1 Rose, 91, he says, more briefly, but evidently intending to 
express the same rule • " The ground is settled, that, if a man, as a reward for his 
labor, chooses to stipulate for an interest in the profits of a business, instead of a cer- 
tain sum proportioned to those profits, he is, as to third persons, a partner." See to 
the same ett'ect Ex parte Langdale, 18 Ves. 300 ; Ex parte Watson, 19 Ves. 459 ; Ex 
parte Hodgkinson, 19 Ves. 291 ; In re Colbeck, Buck, 48. 

This declaration has had great influence upon the courts and the profession. Collyer 
says, "It must be admitted that his lordship's dicta upon this subject have received 
the sanction of the most eminent practitioners at the bar." Collyer on Partnership 
(Perkins's ed.) § 40. Nor is it difficult to account for this. For, to say nothing of 



§ 43.] WHO ARE PARTNERS. 41 

profits of a business, so called, that is, the gross earnings of the 
business, was not held as a partner even as to third persons.^ 

§ 43. Cox V, Hickman. — The earlier authorities, while not 
directly overruled, were rendered obsolete by the decision of the 
House of Lords in the case of Cox v. Hickman.^ In that case 
the creditors of an insolvent manufacturer agreed to carry on 
the ])usincss of the debtor, and to apply the net profits to the 
l^ayment of the deljts. This agreement was held by the House of 
Lords not to constitute the creditors partners even as to third' 
persons. Lord Cranworth said : " It is often said that the test, 
or one of the tests, whether a person not ostensibly a partner is 
nevertheless, in contemplation of law, a partner, is, whether he is 
entitled to participate in the profits. This, no doubt, is, in gen- 
eral, a sufficiently accurate test ; for a right to participate in 
profits affords cogent, often conclusive, evidence that the trade in 
which the profits have been made was carried on in part for or on 
behalf of the person setting up such a claim. But the real ground 
of the liability is that the trade has been carried on by persons 
acting on his behalf." Lord Wensleydale said : " The law as to 
partnership is undoubtedly a branch of the law of principal and 
agent." 

This case, decided in the highest court of England, was at once 
the end of the old theory of partnership, and the starting-point of 
a new doctrine. It put an end to two notions which had been 
regarded as fundamental ; first, that third persons may hold to 
the liability of partners those who in fact are not partners, merely 
because some other relation exists between them ; second, that 
participation in the profits of a business is conclusive of a part- 
nership. The case did not however offer any alternative test of 
a partnership ; for the suggestion of the necessity of an agency is 
of no assistance in a doubtful case. The agency is the result of 
the partnership, not vice versa.^ 

It was at first doubtful whether the case of Cox v. Hickman 
■was an illustration of a general principle, or was decided simply 

the immense authority of so eminent a judge, his words so understood supply a clear, 
simple, and easily applicable rule for the avoidance of a great danger. They tell the 
lawyer who would draw a contract of this kind, how, by a mere formula, he can guard 
his clients from a great uncertainty ; the inconvenience of which might otherwise 
suffice to prevent the proposed arrangement. As a convenient rule, much may be said 
of it ; but, as an accurate one, it must be spoken of \qvy ditferenth'. 

1 Dry V. Boswell, 1 Camp. 329. See Cheap v. Cramond, 4 B. & Aid. 663 ; Pott v. 
Eyton, 3 C. B. 32 ; Lyon v. Knowles, 3 B. & S. 556. 

2 8 H. L. C. 268 (i860). 

3 Cleasby, B., in Holme v. Hammond, L. K. 7 Ex. 218, 233. 



42 THE LAW OF PARTNERSHIP. [CH. V. 

on the facts, and of no general application. It was finally deter- 
mined that the former is true.^ 

§ 44. Sharing Profit and Loss. — The conclusiveness of a sharing 
of profits as a test of partnership has therefore been definitively 
denied. In its place, however, the theory was put forward by 
high authority that a sharing of profit and loss was necessarily 
conclusive of a partnership.^ But this theory is not now law in Eng- 
land. It has been finally held that although profit and loss are 
shared the parties are not partners if their intention was not to 
form a partnership relation.^ 

§45. Boviii's Act. — Meanwhile the legislature had attempted 
to remove the ditiiculties of this branch of the law of partnership 
by statute, by the passage of " Boviii's Act," 28 and 29 Vict. ch. 
86.* It would seem, however, that nothing was gained by the act: 

1 Bullen V. Sharp, L. R. 1 C. P. 86 (Exch. Cliamb.) ; Moll wo v. Court of Wards, 
L. R. 4 P. C. 419. In the former case Bramwell, B., said, as to the distinction some- 
times made between partnership inter se and as to third persons : "The burden of 
proof ... is on the plaintiffs. Now, what reason do they give ? They say that the 
defendant is a partner with his son ; and that, if not partners inter se, they are so as 
regards third parties. A most remarkable exj)ression ! Partnerslup means a relation 
between two parties. How, then, can it be correct to say that A and Baie not in jiart- 
nership a.s between themselves ; they have not held themselves out as being so, and yet 
a tliird person has a right to say they are so as relates to him ? But that must mean 
i7iter se ; for partnership is a relation inter se, and the word cannot be used except to 
signify that relation. A is not the agent of B ; B has never held him out as such ; 
yet C is entitled, as between himself and B, to say that A is the agent of B. Why is 
he so entitled, if the fact is not so, and B has not so represented ? " 

2 Lindley Part. * 10 ; Pawsey v. Armstrong, 18 Ch. D. 698. 

8 Walker v. Hirsch, 27 Ch. D. 460 (C. A.) ; Badeley v. Consolidated Bank, 38 Ch. 
D. 238 (C. A.). 

* By this Act, after reciting that it is expedient to amend the law relating to part- 
nership, it is therefore enacted as follows : 1. The advance of money by way of loan to 
a person engaged or about to engage in any trade or undertaking, upon a contract in 
writing with such person, that the lender shall receive a rate of interest varying with 
the profits, or shall receive a share of the profits arising from carrying on such trade or 
undertaking, shall not, of itself, constitute the lender a partner with the person or the 
persons carrying on such trade or undertaking, or render him responsible as such. 
2. No contract for the remuneration of a servant or agent of any person engaged in any 
trade or undertaking, by a share of the profits of such trade or undertaking, shall, of 
itself, render such servant or agent responsible as a partner therein, nor give him the 
rights of a partner. 3. No person, being the widow or child of the deceased partner 
of a trader, and receiving by way of annuity a portion of the profits made by such 
trader in his business, shall, by reason only of such receipt, be deemed to be a jiiirtner 
of or to be subject to any liabilities incurred by such trader. 4. No person receiving, 
by way of annuity or otherwise, a portion of the profits of any business, in consideration 
of the sale by him of the good-will of such business, shall, by reason only of such 
receipt, be deemed to be a partnei' of or be subject to the liabilities of the i)erson carry- 
ing on such business. 5. In the event of any such trader as aforesaid being adjudged 
a bankrupt, or taking the benefit of any act for the relief of insolvent debtors, or entering 
into an arrangement to pay his creditors less than 20s. in the pound, or dying in insol- 



§ 46,] WHO ARE PARTNERS. 43 

for the common law has since that time been declared to be in 
accordance with the provisions of the act, and courts of the high- 
est authority have said that it added nothing to the law.^ 

§ 46. Present English Doctrine. — The result of the English 
cases seems to be the abandonment of any artificial test of part- 
nership, and the adoption of what must be regarded as the true 
principle : that parties become partners only by agreeing to enter 
into an association wliich the law regards as a partnership.^ Tlie 
agreement, cither express or implied, to form such an association, 
is the only method by which one can become a true partner. 
Whether such an association is intended to be formed is a question 
of fact in each case ; and in deciding this question one obtains 
much assistance from the opinion of Jessel, M. R., in Pooley v. 
Driver : ^ " Partnership is a sort of agency, but a very peculiar 
one. You cannot grasp the notion of agency, properly speaking, 
unless you grasp the notion of the existence of the firm as 
a separate entity from the existence of the partners ; a notion 
which was well grasped by the old Roman lawyers, and which 
was partly understood in the courts of equity before it was part 
of the whole law of the land, as it is now. But when you get that 
idea clearly, you will see at once what sort of agency it is. It is 
the one person acting on behalf of the firm. He does not act as 
agent, in the ordinary sense of the word, for the others so as to 
bind the others; he acts on behalf of the firm of which they are 
members ; and as he binds the firm and acts on tiie part of the 
firm, he is properly treated as the agent of the firm. If you cannot 
grasp the notion of a separate entity for the firm, then you are 
reduced to this, that inasmuch as he acts partly for himself and 
partly for the others, to the extent that he acts for the others he 
must be an agent, and in that way you get him to be an agent for 
the other partners, but only in that way, because you insist upon 
ignoring the existence of the firm as a separate entity." 

The formation of a partnership, then, is the creation of a body, 



vent circumstances, — the lender of any such loan as aforesaid shall not be entitled to 
recover anj' portion of his principal, or of the profits or interest payable in respect of 
such loan, nor shall any such vendor of a good-will as aforesaid be entitled to recover 
any such profits as aforesaid until the claims of the other creditors of the said trader 
for valuable consideration in money or money's worth have been satisfied. 6. In the 
construction of this Act the word "person" shall include a partnership firm, a joint- 
stock company, and a corporation. 

1 Sir Montague Smith in Mollwo v. Court of Wards, L. R. 4 P. C. 419 ; Jessel 
M. R., in Pooley v. Driver, 5 Ch. D. 458. 

2 Badeley v. Consolidated Bank, 38 Ch. D. 238, 

3 5 Ch. D. 458, 476. 



44 THE LAW OF PARTNERSHIP. [CH. V. 

existent apart from the partners, for business purposes ; for which 
the partners are to act, and not directly for each other. 

§ 47. American Doctrine not Uniform. — The rules adopted upon , 
this subject by the American courts are, as we mig-ht expect, not 
harmonious. In the older States the rule laid down in Waugli v. 
Carver was followed before a more reasonable rule was made 
possible by the decision of Cox v. Hickman. The courts of some 
of these States felt themselves constrained by authority not to 
follow the later I^nglish decision, even though the rules laid down 
in it were more consonant with true principle. In other States, 
however, the true principles were recognized even before they 
were formulated in England. All that is now possible, therefore, 
is to examine in detail the rules laid down in the different juris- 
dictions in this country ; bearing in mind, throughout this ex- 
amination, the fact that the rules finally adopted by the English 
courts are the only ones consistent with principle. 

§ 48. Partnership inter se and as to Third Persons. — It is said 
in a number of recent cases that there may be a partnership as to 
third jjcrsons, though the parties are not partners ifiter se.^ It 
has however been held, in several important and well-reasoned 
cases, that there can be no partnership except one founded upon 
the intention of the parties.^ Indeed, it seems to be the view of 
a respectable author that the distinction between partnership niter 
se and partnership as to third parties has been abandoned in this 
country ; ^ but unfortunately it appears, from the authorities 
already cited, that the indefensible distinction still exists in 
many if not in most jurisdictions. No stronger argument need 
be made against it than that of Bramwell, B., previously quoted.* 

§ 49. Sharing Profits as such. — The rule generally followed in 
the earlier American cases was that suggested in some of the 
English cases : that where the party in question received from a 
business a sum equal to a certain proportion of the profits he was 
not a partner ; but if he received a proportional part of the profits 
themselves, he was a partner. In a less crude form, the rule 
came to be stated thus : that when the party has a proprietary 

1 Powell V. Moore, 79 Ga. .524, 4 S. E. 383 ; Howe v. Dupoyster (Ky.), 7 S. W. 
627 ; Waring i--. Nat. Marine Bank, 74 Md. 278, 22 Atl. 140 ; Pratt v. Langdon, 97 
Mass. 97 ; Hackett v. Stanley, 115 N. Y. 625, 22 N. E. 745 ; Caldwell v. Miller, 127 
Pa. 442, 17 Atl. 983 ; Miller v. Marx, 65 Tex. 131. 

2 Haycock v. Williams, 54 Ark. 384, 16 S. W. 3 (semhh) ; Eastman v. Clark, 53 
N. H. 276 ; Harvey v. Childs, 28 Oh. St. 319 ; Boston & Col. Smelting Co. v. Smith, 
13 R. I. 27. 

3 1 Bates Part. § 15. 
* Ante, % 43. 



§50.] 



WHO ARE PARTNERS. 45 



interest in the profits qua profits before division he is a partner, 
otlierwise not.^ 

§ 50, Distinction between Gross and Net Profits. — The distinc- 
tion between gross ])rofits and net pi'ofits has been pointed out 
by some American cases,^ following the English case of Dry v. 
Boswell,^ already examined. 

^ "The rule is ea.sily Liiil down ; the difficulty is in its application. Where a part 
of the profits themselves is the property of the party lie is then a partner. Where their 
amount merely ascertains the amount of a debt or duty, but they themselves do not 
belong to the party, there it is not a partnership." Henderson, C. J., in Cox v. Delano, 
3 Dev. 89. The leading and well-considered cases of Loomis v. Marshall, 12 Conn. 69, 
and Denny i-. Cabot, 6 Met. 82, are to tlie same effect. This rule seems to have been 
uniformly followed in Massachusetts. Reynolds v. Toppan, 15 Mass. 370 ; Kice v. 
Austin, 17 Mass. 197; Turner v. Bissell, 14 I'ick. 192; Blanchard v. Coolidge, 22 
Pick. 151 ; Bradley v. White, 10 Met. 303 ; Judson v. Adams, 8 Cu.sh. 556 ; Pratt v. 
Langdon, 12 All. 544, 97 Mass. 97. The same distinction seems to be recognized in 
all the earlier and a few later Ameiican authorities. Shropshire v, Shejjperd, 3 Ala. 
733 ; Hodges v. Dawes, 6 Ala. 215 ; Scott v. Campbell, 30 Ala. 728 ; Bucknam v. 
Barnum, 15 Conn. 67 ; Reed v. Murphy, 2 Greene (la.) 574; Clement v. Hadlock, 13 
N. H. 185 ; Fitch v. Hall, 25 Barb. 13 ; Brockway v. Burnap, 16 Barb. 310 ; Stroher 
V. Elting, 97 N. Y. 102 ; Johnson v. Miller, 16 Ohio, 431 ; Heckert v. Fegely, 6 W. 
& S. 139 ; Dunham v. Rogers, 1 Barr, 255 ; Bartlett v. Jones, 2 Strobh. 471 ; Tobias 
V. Blin, 21 Vt. 544 ; Bowyer v. Anderson, 2 Leigh, 550 ; Brown v. Higginbotham, 
5 Leigh, 583. 

2 Moore v. Smith, 19 Ala. 774 ; Turner v. Bissell, 14 Pick. 192 ; Beecham v. Dodd, 
3 Harr. Del. 485 ; Heimstreet v. Howland, 5 Den. 68 ; Everett v. Coe, 5 Den. 180; 
Pattison v. Bhmchard, 5 N. Y. 186 ; Gibson v. Stone, 43 Barb. 285 ; Ambler v. Brad- 
ley, 6 Vt. 119; Bowman v. Bailey, 10 Vt. 170; Mason v. Potter, 26 Vt. 722. In 
Loomis V. JLarsliall, 12 Conn. 67, the parties sought to be charged as partners were to 
divide between them the proceeds of the sales of the gooils, diminished only by the cost 
of selling. The difference between net profits and net sales was pressed upon the court. 
But it was not thought necessary to express any opinion upon the point. In Denny v. 
Cabot, 6 Met. 82, the fund to be divided was substantially the same : "For (to quote 
the language of the court) although, in terms, the agreement was to pay Cooper one 
third of the net earnings, yet that is explained by the words immediately following, by 
which it appears that Cooper was entitled to one third of the gross profits after deduct- 
ing certain specified charges ; and that in no event was he to be liable for any losses." 
The court then cite Loomis v. Marshall, supra; Reynolds v. Topham, 15 Mass. 370; 
Vanderburgh v. Hull, 20 Wend. 70 ; Turner v. Bissell, 14 Pick. 192 ; and proceed 
thus : " These cases appear to us fully to support the defence in the present case. 
Some of them may perhaps appear to clash with the distinction Haid down by Lord 
Ellenborough in Dry v, Boswell, 1 Camp. 329, and recognized in other cases) between 
sharing the gross earnings and sharing the net earnings of a business or adventure. 
But, however this may be, we think there is no sound distinction between an agree- 
ment to pay to a party a certain share of the gross profits and an agreement to pay a 
certain share of the net profits, as explained in the present contract ; the clear meaning 
of the terms of which is, that Cabot, Appleton & Co. were to pay Cooper one third part 
of the profits, after making certain specified deductions therefrom, and Cooper clearly 
was not to be liable for any losses. If he had stipulated for a share in the profits 
{whetlicr gross or net profits), so as to entitle him to an account, and to give him a 
specific lien, or a preference in payment over other creditors, and giving him the full 
benefit of the profits of the business, without any corresponding risk in case of loss, — 

3 1 Camp. 329. 



46 THE LAW OF PARTNERSHIP. [CH. V. 

§ 51. Sharing Profits generally. — It is still often laid down by 
the courts that one who shares the profit of a business is partner, 
no matter what was the intention of the parties ; following Waugh 
V. Carver to the fullest extent.^ Other cases however hold that 
in this case the relationship of the parties may be shown to be 
other than that of partners.^ And it may perhaps safely be said 
that every jurisdiction will eventually recognize the correctness of 
this rule. 

§ 52. Sharing Profit and Loss. — Even where the parties share 
both i)rofit and loss, they are not partners if they have not in fact 
created a partnership, but stand in some other relation to each 
other.3 

§ 53. Right to account as a Test. — An attempt has been made 
in this country to set up another test of partnership. It has been 
asserted, not only by text-writers, but by eminent judges, that a 
person is liable as a partner, to third parties, when he has such 
an interest in profits as will give him a right to an account, (a) 
Undoubtedly, every partner has a right to an account of the 

(a) 3 Kent Com. p. 25, note (b) ; Gary in Champion i;. Bostwick, 18 Wend. 184. 

on Part. 11, note (i) ; Collyer on Part. § 44, See also Heimstreet v. Rowland, 5 Denio, 

and note ; Lord Eldon in Ex parte Ham- 68 ; Denny i;. Cabot, 6 Met. 92. 
per, 17 V'es. 412 ; Chancellor Walworth 

justice to the other creditors would seem to require that he should be holden to be 
liable to third persons as a partner." 

1 Buckner v. Lee, 8 Ga. 285 ; Perry t). Butt, 14 Ga. 699; Howe v. Dupoyster (Ky.) 
7 S. W. 627 ; Taylor v. Ternie, 3 H. & J. 505 ; Pratt v. Langdon, 12 All. 544, 97 Mass. 
97 ; Champion v. Bostwick, 18 Wend. 184 ; Cushnian v. Bailey, 1 Hill, 526 ; Everett 
V. Coe, 5 Den. 180 ; Manhattan Brass Co. v. Sears, 45 N. Y. 797 ; Cox v. Delano, 
3 Dev. 89 ; Holt v. Keruodle, 1 Ire. 199 ; Mauney v. Coit, 86 N. C. 463 ; Purviance 
V. McClintee, 6 S. & R. 259 ; Caldwell v. Miller, 127 Pa. 442, 17 Atl. 983; Pierson v. 
Steinmyer, 4 Rich. 309 ; Cothran v. Marmaduke, 60 Tex. 370 ; Stevens v. Gainesville 
Nat. Bank, 62 Tex. 499. 

2 Meehan i;. Valentine, 145 U. S. 611 ; Le Fevre v. Castagnio, 5 Col. 564 ; Burton 
V. Goodspeed, 69 111. 237; Smith v. Knight, 71 111. 148; Williams v. Soutter, 7 la. 
435; Shepard v. Pratt, 16 Kas. 209; Beeclier t;. Bush, 45 Mich. 188, 7 N. W. 785; 
Cohvell V. Britton, 59 Mich. 350, 26 N. W. 538 ; Corey v. Cadwell, 86 Mich. 570, 49 N. 
"W. 611 ; Philips v. Samuel, 76 Mo. 657 ; Priest v. Chouteau, 85 Mo. 398 ; Parchen v. 
Anderson, 5 Mont. 438, 5 Pac. 588 ; Gibson v. Smith, 31 Neb. 354, 47 N. W, 1052 ; 
Horton v. New Pass Gold & Silver Mining Co., 27 Pac. 376 (Nev.) ; Eastman v. Clark, 
53 N. H. 276 ; Wild v. Davenport, 48 N. J. L. 129, 7 Atl. 295 ; Harvey v. Chiids, 28 
Oh. St. 319 ; Cogswell i;. Wilson, 11 Ore. 371, 4 Pac. 1130; Boston & Col. Smelting 
Co. V. Smith, 13 R. I. 27 ; Polk v. Buchanan, 5 Sneed, 721 ; Robinson v. Allen, 85 Va. 
721, 8 S. E. 835 {semb/c). 

3 Tayloe v. Bush, 75 Ala. 432 ; Stevens v. Faucet, 24 111. 483 ; ChaflTraix v. Lafitte, 
30 La. Ann. 631 (but see New Orleans v. Gauthreaux, 32 La. Ann. 1126) ; Dwinel v. 
Stone, 30 Me. 384 ; McDonald v. Matney, 82 Mo. 358 ; Kellogg Newspaper Co. t'. 
Farrell, 88 Mo. 594; Clifton v. Howard, 89 Mo. 192, 1 S. W. 26 ; Chapline v. Conant, 
3 W. Va. 507. See the English authorities, ante, § 44. 



5 54.1 WHO ARE PARTNERS. 47 

profits ; but the converse is not true, that every one who has such 
a right is a partner. There are many relations which a man 
may bear to another, and in tliat right be entitled to an account 
without being liable as a partner. And it has been well said by 
an American writer, " In all cases where a person is to be paid 
for his services by a sum proportional to the profits, he must be 
entitled to an account of profits. If not, how is he to ascertain 
that he has what he has stipulated for ? " (by 

§ 54. Intention the true Test. — The true test of partnership, 
then, is the intention of the parties. They have agreed together 
for a certain purpose. If the purpose was the formation of an 
associated body, different from the individual parties, for which 
they were thereafter to act, they have formed a partnership. If 
however the purpose was the entrance into a relationship in which 
one of the parties, at least, was to act as an individual solely for 
himself, without becoming a member of an associated body, there 
is no partnership formed and the parties are therefore not part- 
ners. The intention to form a partnership may be expressed in 
the contract, or it may be gathered from the acts and from all the 
circumstances which are available for the interpretation or con- 
struction of the contract.^ This does not mean that parties 
having formed their relationship are permitted to call it a part- 
nership or otherwise at will ; but that whether the parties formed 
the associated body which the law regards as a partnership depends 
upon whether they intended to form such a body. If they did so 
intend they are partners, though they were . ignorant of the legal 

(b) Bissett on Partnership, p. 14. 

* The right to go into equity for an account is not confined to a partner. Any 
employee paid by a share of the profits may maintain a bill for an account, though he 
is not a partner, since a court of law is unable to take such an account. Harrington 
V. Churchward, 29 L. J. N. s. Ch. .'521 ; Katsch v. Schenok, 13 Jur. 668 ; Ferry v. 
Henry, 4 Pick. 75 ; Hallett v. Cuniston, 110 Mass. 32 ; Bentley v. Harris, 10 R. I. 
434 (distinguishing Hazard v. Hazard, 1 Story, 371). 

2 Badeley v. Consolidated Bank, 38 Ch. Div. 238 ; Couch v. Woodruff, 63 Ala. 466 
(sanble) ; Mayrant v. Marston, 67 Ala. 453 ; Tayloe v. Bush, 75 Ala. 432 ; Loomis v. 
Marshall, 12 Conn. 69 ; Chaffraix v. Lafitte, 30 La. Ann. 631 ; Sangston v. Hack, 52 
Md. 173 ; Waring v. Nat. Marine Bank, 74 Md. 278, 22 Atl. 140 ; Denny v. Cabot, 

6 Met. 82 ; Beecher v. Bush, 45 Mich. 188, 7 N. W. 785 ; Corey v. Cadwefl, 86 Mirh. 
570, 49 N. W. 611 ; Priest v. Chouteau, 85 Mo. 398 ; Kellogg Newspaper Co. v. Far- 
rell, 88 Mo. 594; Vibbard v. Roderick, 51 Barb. 616; Setzer v. Beale, 19 W. Va. 
274. Hence, if persons who unite in a joint undertaking expressly declare that they 
do not mean to become partners, the law will not hold them partners as to each other, 
unless the actual relations into whieh they enter neutralize and negative their declara- 
tions. Gilpin V. Enderbey, 5 B. & Aid. 954 ; Kerr v. Potter, 6 Gill, 404 ; Freeman v. 
Bloomfield, 43 Mo. 391 ; Gill v. Kuhn, 6 S. & R. 333. 



48 



THE LAW OP PARTNERSHIP. 



[CH. V. 



nature of their relation, and even though they may have expressly 
provided in the articles that they should not become partners.^ 

And conversely, thou,<2;h they have declared themselves to be 
partners, if the relationship established was not one of partner- 
ship the parties will not be regarded by the law as partners.^ 

§ 55. Partnership inferred from Control of Business. — It is quite 
certain that no mere interfei'encc with the affairs of the partner- 
ship, no advice in respect to them, not even a control of them, not 
even the right or the duty of interference, advice, or control, as 
part of an express contract, can ahme make a party chargeable as 
a partner ; (c) although they might be very influential, in connec- 
tion with other circumstances, in determining the relation of a 
person to the partnership. Neither would the fact of joining in 
an order for the purchase or sale of goods, (cZ) or for any mercan- 
tile transaction, {e) suffice to create a partnership or its liabilities 
without other circumstances. 



(c) In Barklie v. Scott, 1 Hudson & 
B. 83, the court said : "As to the stipula- 
tion that the house should be governed 
and directed by the defendant's advice, 
this does not constitute him a partner, nor 
give him any legal interest in the firm ; it 
does not hold him out to the world as a 
partner, nor give him any share in the 
profits, nor em]io\ver him to dissolve, alter, 
or affect the partnership. Suppose that 
the defendant Jiad not been the party ad- 
vancing this money, but that the gift had 
been made by a third person, who had 
been desirous that the young man should 
have the advice of some skilful person 
engaged in trade, and had stipulated that 
the house should be directed by that ad- 
vice, — could such a person be considered 
as a partner ? " See Bryden v. Taylor, 2 
H. & G. 400 ; Taylor v. Perkins, 26 Wend. 
124 ; Smith v. Edwards, 2 H. & G. 411. 

(d) Gibson v. Lupton, 9 Bing. 297. 
The defendants, who were never general 
partners, ordered wheat of the plaintiffs, 
by an order containing the following 
words: "Payment for the same to be 
drawn upon each of us, in the usual man- 
ner." The i)laintiffs, in a letter addressed 
to each of the defendants, answered : 
"We have made a purchase for your joint 
account." At the same time, they drew 
upon the defendants for one-third of the 



price, upon each by a separate bill for one 
moiety of the third. They afterwards 
despatched the wheat, and drew other 
similar bills, in the same manner, for the 
remainder of the price ; having, however, 
previously written them : " We hold you 
both harn)less for the advance up to the 
period of lading and invoice." The bill 
of lading, on its reaching tlie defendants, 
was indorsed by each of them ; the freight 
and charges were paid by the money of 
each ; and the wheat was equally divided 
between them when it was warehoused. 
Upon these facts, it was held, that the 
defendants were not jointly liable as part- 
ners for the whole price of the goods. 
See also Jackson v. Robinson, 3 Mason, 
138 ; Harding v. Foxcroft, 6 Me. 76. 

(e) Thus the fact that two persons sign 
a note jointly is no evidence of copartner- 
ship between them. Hopkins v. Smith, 
11 Johns. 161. But it has been held 
otherwise where two persons draw a bill 
of exchange. Carvick v. Vickery, Doug. 
653, note. See also Given v. Albert, 5 
Watts & S. 339 ; M'lver v. Humble, 16 
East, 169 ; Gibbons v. Wilcox, 2 Stark. 
43; Chandler v. Brainard, 14 Pick. 285; 
Clark V. Keid, 11 Pick. 446; Banchor v. 
Cilley, 38 Me. 553; Chase v. Stevens, 19 
N. H. 465. 



1 Scott V. Campbell, 30 Ala. 728. 

2 Oliver c. Gray, 4 Ark. 425. 



§ 56.] WHO ARE PARTNERS. 49 

In Ireland, a father advanced a large sum to a partnership for 
his minor son, who l)ecame a partner, and the father was to have 
the right of knowledge, advice, <fec., and the accounts of the part- 
nership were rendered to him. But, the firm failing, he was 
adjudged not a partner ; because the articles did not provide that 
he might withdraw any part of the profits, and he did not with- 
draw them in fact. (/) 

But where one party really engages in the business, thougli he 
acts nominally for another, he may be held as a [)artner. Thus 
wdiere a business is carried on by a firm of which a married 
woman is nominally a member, though the husband transacts all 
the business, the intention is evidently that he shall engage in the 
business, and he is a partner. ^ 

So where one signed partnership articles in the name of his 
mother, but acted as partner in the business, he was held as such.^ 
So where a guardian entered into articles of copartnership in 
the name of his ward, but contributed his own money as capital, 
assisted in the business, and took the profits, he was held to be a 
partner, and not his ward.^ 

§ 56. Intention to escape Liability not Enough. — Since the 
intention of the parties to form an association which the law calls 
a partnership is the test, it is immaterial whether they expect to 
become individually liable. So wiiere certain persons subscribed 
money for carrying on the grocery business, and called themselves 
♦' stockholders," expecting to avoid individual liability, but took 
no steps to form a corporation, they were held partners.* So 
where a corporation is projected, but business is carried on by the 
intending corporators before they have taken steps to obtain a 
charter, they are lialjle as partners.^ They are also so liable when 
they vote, after the expiration of the charter, to continue the 
business.^ And where a corporation is in fact formed, but is a 
merely nominal one, the parties really acting for a partnership, 
they have been held partners.' Where three persons who had 
combined to deal in land and water rights under a contract 

(/) Barklie v. Scott, 1 Hudson & B. 83. 

1 Rabitte v. Orr, 83 Ala. 185, 3 So. 420. 

2 Bishop V Austin, 66 Mich. 515, 33 X. W. 525. 

* Miles V. Wann, 27 Minn. 56. 

* Farnum v. Patch, 60 X. H. 294. 

* Citizens' Bank v. Hine, 49 Conn. 236 ; Martin v. Fewell, 79 Mo. 401 ; McVicker 
V. Cone, 21 Ore. 353, 28 Pac. 76. 

8 Nat. Bank of AVatertown v. Landon, 45 N. Y. 410. 
7 Farmer's Bank v. Smith, 26 W. Va. 541. 

4 



50 THE LAW OF PARTNERSHIP. [CH. V. 

secured a charter for a corporation and took property in the cor- 
porate name, but never issued stock or engaged in business as a 
corporation, it was held that their relation was that of a partner- 
ship, the assets being the capital stock of the corporation.* And 
where individuals bought the assets of a railroad company but 
not the franchise, and carried on the road in the name of the 
corporation, they were held to be partners.^ Where there is 
shown to be an association for business purposes it is presumed 
to be a partnership ; if the associates wish to escape liability 
on the ground that the association is incorporated, they must 
prove that fact.^ 

8 57. Intention to form Corporation. — But where persons unite 
to form a corporation, and believe that they have done so, it is 
clear that they should not be held liable as partners ; for they 
never intended to form an association which the law calls a 
^partnership. In accordance with this principle it is generally 
held that where parties believe themselves to be stockholders in a 
legal corporation they cannot be held liable to third persons as 
partners, though there is no corporate liability ;* and it is imma- 
terial whether the corporate liability fails by reason of defective 
organization, expiration of charter powers, unconstitutionality of 
the law under which organization was attempted,^ excess of 
power, or for any other reason. It is however held in some 
jurisdictions that an intended corporation not legally formed is a 
partnership, and the stockholders are partners.^ 

Members of the supposed corporation who take part in creating 
a liability to a third party are individually liable to him.' And 

1 Shorb V. Beaudry, 56 Cal. 446. 

2 Chatfe V. Ludeling, 27 La. Ann. 607. 

8 Clark V. Jones, 87 Ala. 474, 6 So. 362. 

4 Gartside Coal Co. v. Maxwell, 22 F. R. 197 ; Blanchard v. Kaull, 44 Cal. 440 
{semble) ; Humphreys v. Mooney, 5 Col. 282 ; Stattoid Nat. Bank v. Palmer, 47 Conn. 
443 ; Planter's & Miner's Banlc v. Padgett, 69 Ga. 159 ; Tarbell v. Page, 24 111. 46 ; 
Fay V. Noble, 7 Cusli. 188 ; Trowbridge v. Scudder, 11 Cush. 83 ; First Nat. Bank v. 
Almy, 117 Mass. 476 [semble); Ward v. Brigham, 127 Mass. 24; Merchants & 
Manufacturers' Bank v. Stone, 38 Mich. 779 ; Stout v. Zulick, 48 N. J. L. 599, 7 Atl. 
362 ; Central Bank v. Walker, 66 N. Y. 424 ; Jessup v. Carnegie, 80 N. Y. 441 
(semble) ; Medill v. Collier, 16 Oh. St. 599 ; Newburg Petroleum Co. v. Weare, 27 
Oh. St. 343 ; Second Nat. Bank v. Hall, 35 Oh. St. 158. 

& Contra, Eaton v. Walker, 76 Mich. 579, 43 N. W. 638. 

6 Conner v. Abbott, 35 Ark. 365 ; Coleman v. Coleman, 78 Ind. 344 ; Kaiser v. 
LawTence Savings Bank, 56 la. 104; Hurt v. Salisbury, 55 Mo. 310; Richardson v. 
Pitts, 71 Mo. 128 ; Abbott v. Omaha Smelting Co., 4 Neb. 416. Even in these juris- 
dictions the stockholders could not be held as partners if the purpose of the corporation 
was not to do business, as where it was formed to extend and grade a street. Johnson 
V. Corser, 34 Minn. 355, 25 N. W. 799. 

' Rianhard v. Hovey, 13 Ohio, 300 ; Rutherford v. Hill, 22 Ore. 218, 29 Pac. 546. 



§ 59.] WHO ARE PARTNERS. 51 

therefore if all the stockholders of a corporation knowingly 
engage in a business not warranted by the charter,^ or continue 
business after the expiration of the charter,^ they are liable 
individually. It would seem, however, that even in this case the 
liability is not that of partners, but is either an imi)lied warranty 
of the corporate liability, analogous to the liability of one who 
assumes without autliority to act as an agent ; ^ or else a liability 
imposed by statute.* 

§ 58. Requisites of a Partnership. — Different phrascs have been 
employed by the courts to explaiu the requisites of a partnership. 
Thus it has been said that there must be a community of interest 
in property employed in business, and in the profits ; ^ a com-, 
munity of interest for business purposes ;*^ a comnmuity of interest 
in a business, as to wliich the partners are mutually principals 
and agents, with general powers within the scope of the business ;' 
a proprietary interest in the profits as such before division, as 
principal trader ; ^ and that the relation of agency must be 
created.^ These all approximate the true rule. They are so 
many attempts to state the necessity for the formation of a 
business association or entity, for which the parties are to act, 
and with which their relations are established. 

§ 59. Community of Loss not Essential. — Although it is 
undoubtedly true, that in much the greater number of partner- 
ships there is a comrauuity of loss as well as of profit, the weight 
of authority as well as of reason seems to be decidedly in favor of 
the rule that there may be a legal and valid partnership, although 
one or more of the partners are guaranteed by the others against 
loss.i** And even if one of the parties agrees to be liable for losses, 

1 Ridenour v. Mayo, 40 Oh. St. 9. 

2 Nat. Bank of Wateitown v. Landon, 45 N. Y. 410. 

3 Trowbridge v. Seudder, 11 Cush. 83. 

* Sullivan v. Sullivan Mfg. Co., 20 S. C. 79. 

5 Dame v. Kenipster, 146 Mass. 454, 15 N. E. 927. 

« Priest V. Chouteau, 85 Mo. 398. 

7 Beecher v. Bush, 45 Mich. 188, 7 N. W. 785. See Corey u. Cadwell, 86 Mich. 
570, 49 N. W. 611 ; Cogswell v. Wilson, 11 Ore. 371, 4 Pac. 1130. 

8 Gibson v. Smith, 31 Neb. 354, 47 N. W. 1052. 

9 Wild V. Davenport, 48 N. J. L. 129, 7 Atl. 295. 

1* In spite of numerous dicfa to the contniry, both in England and in this country, 
this appears to be the law. The true princiide seems to l)e laid down by Lord Eldon 
in Ex parte Langdale. 18 Ves. 300 : " A man, who is to have no profit, may be a part- 
ner, if holding himself out as such ; as by lending his name. He may also be a partner 
when the contract is that he shall suffer no loss ; and, I agree, it is not the less a part- 
nership becau.se part of the contract is, that they are not to suffer by bad debts, the 
personal negligence of him who has the custody of the articles, by fire, &c." See 
Brigham v. Dana, 29 Vt. 1. So in Giljtiii v. Enderbey, 5 B. & Aid. 954, where, though 



52 THE LAW OF PARTNERSHIP. [CH. V. 

although he is not to participate in the profits, it is possible that 
there may be a partnershi}).^ 

§ 60. Voluntary Associations and Clubs. — It WOuld seem that 
there must be a community of interest for business purposes ; 
though it cannot be said that partnership exists only for buyiiig 
and selling ; for, as we shall see, physicians and lawyers, who 
neither buy nor sell professionally, may yet form a professional 
partnership, which is entirely legal and to which all the rules and 
privileges of the law of partnership ai)ply. Usually, however, the 
purpose of the partnership is to buy goods and sell them again ; 
and in all cases it must exist for the purpose of making a profit. 
Hence, voluntary associations or clubs, for social and charitable 
purposes, and the like, are not proper partnerships ; nor have their 
members the powers and responsibilities of partners.^ 

§ 61. Purpose of realizing Profit essential. — If the intention of 
acting in common is limited to buying and making, or if a valu- 
able product arises from a contribution to common stock of one 



one of the parties was guaranteed against all delits and losses, there being no usurj' in 
the case, the court held that there was a partnership, though of a peculiar kind ; and 
the circumstance that one of the parties was not to bear any losses was not adverted to. 
See Fereday v. Hordern, Jacob, 144 ; Manville v. Parks, 7 Col. 128 ; Cochran . Bartle, 
91 Mo. 636, 3 S. W. 8.'i4 ; Pierson v. Sleinniyer, 4 Rich. 309. 

1 For such a case, see Mandeville v. Mandeville, 35 Ga. 243. 

2 Fleniyng v. Hector, 2 M. & W. 172. So "clubs" ai-e neither " partnerships" 
nor "associations" within the meaning of the Winding-up Acts. In re St. James's 
Club, 2 De G., M. & G. 383. Nor is a company, the purpose of which is the purchase 
of lands with funds raised by subscription, and the division of such lands amongst the 
subscribers, a company entitled to registration under 7 & 8 Vict. ch. 110, wliich (§ 2) 
applies only to associations formed " for any commercial or trading puriioses." Queen 
V. Whitmavsh, 15 Q. B. 600. See Delauney v. Strickland, 2 Stark. 416 ; Caldicott v. 
Griffiths, 8 Exch. 898 ; Cockerell v. Aucomjite, 2 C. B. N. s. 440 ; Briglit v. Hutton, 
3 H. L. C. 341. In re Worcester Corn Exchange Company, 3 DeG., M. & G. 180 ; 
Cheney v. Clark, 3 Vt. 431. Persons who subscribe in writing certain sums for the 
purpose of building a meeting-house, which, when completed, is to be the property of 
the subscribers in the proportion of their subscriptions, are not partners. Woodward 
V. Cowing, 41 Me. 1. 

So a voluntary association for charitable purposes is not a partnership. Burke v. 
Roper, 79 Ala. 138 ; Lafond v. Deems, 81 N. Y. 507. Such as a Young Men's Chris- 
tian Association, Queen v. Robson, 16 Q. B. D. 137 ; an unincorporated religious 
society, Devoss v. Gray, 22 Oh. St. 159 ; or a Masonic Lodge, Ash v. Guie, 97 Pa. 
493. An association formed to resist the claims of a certain patentee is not a partner- 
ship. Burt V. Lathrop, 52 Mich. 106, 17 N. W. 716. A political committee is not a 
piirtnership. Richmond v. Judy, 6 Mo. App. 465. An association formed to extend 
ami grade a street is not a partnership. Johnson v. Corser, 34 Minn. 355, 25 N. W. 
799. 

When such an association undertakes a liability only those members are liable who 
either voted to incur the liability or by taking some part in the business, or in some 
other way, ratified the act of those who actually incurred the liability. Devoss v. Gray, 
22 Ohio St. 159 ; Ash v. Guie, 97 Pa. 493. See ante, § 37. 



§ 61.] WHO ARE PARTNERS. 53 

thing by one and another thing by another, and a working on and 
with those tilings by both, this may constitute a partnei-sliip as to 
the ownership of that product, and in all the transactions which 
led to it, if the product itself is to be sold on common account, 
in order to realize a profit. This would be a numufacturing part- 
nership. But if the parties thus combine stock and work for a 
product to be divided between them, and not for sale, but for each 
party to keep and use the share that falls to him, it is not a partner- 
ship.^ So, where one party let another have all the timber on his 
land, and the other was to saw it, and pay to the first one-fifth of 
the gross proceeds, this did not constitute them partners.^ 

In short, the law of partnership requires a community of interest 
in the profits resulting from the business or work done. {<j) Thus, 

(g) Thus ill Hoaie v. Dawes, 1 Doug, wliere Lord Loughborough says : " If the 

371, several persons liad employed a broker j)arties be jointly concerned in the pur- 

to purchase a lot of tea, of which they were chase they must also lie jointly concerned 

to have a separate share. The (question in the future sale ; otherwise the}- are not 

being whether the employers of the broker partners.' On the same principle joint 

were partners, so as to make any one of purchases of land, or even of merchandise, 

them liable for the price of all the tea so by two or more cannot have the effect of 

purchased, it was held, that they were not ; making them partners, nor of raising a 

since there was no communion of prolit presumption that they are so. Porter v. 

and loss, but merely an undertaking wich M'Clure, 15 Wend. 187; Ballon u. Spencer, 

the broker by each for a particular ([uan- 4 Cow. 163 ; Brady c. Calhoun, 1 P. & W. 

tity. So in Coope v. Eyre, 1 H. Bl. 37, 140 ; Gilmore v. Black, 11 Me. 485 ; 

^ An agreement to cultivate a farm " on shares " is of this sort. The better view is 
that where the object is to divide the crop in kind between the partners it is no part- 
nership. Gardeniiire v Smith, 39 Ark. 280 ; Blue v. Leathers, 15 111. 31 ; Donnell v. 
Harshe, 67 Mo. 170 ; Musser v. Brink, 68 Mo. '242, 80 Mo. 350 : Clifton v. Howard, 89 
Mo. 192 ; Putnam v. Wise, 1 Hill, 234 ; Reynolds v. Pool, 84 N. C. 37 ; Day w. Stevens, 
88 N. C. 83 (explaining Curtis v. Cash, 84 N. C. 41) ; Brown v. Jaquette, 94 Pa. 113 ; 
Murray v. Stevens, 1 P»ich. Cas. 205. Contra, Holifield i*. White, 52 Ga. 567 (but see 
Holloway v. Brinkley, 42 Ga. 226 ; Smith v. Summerlin, 48 Ga. 425). 

In accordance with this princijile, it is almost universally held that a combination 
to produce something and divide the product is not a partnership. Gibson v. Lupton, 
9 Bing. 297. So of a combination to work a gold-mine and divide the gold, Gilnian v. 
Cunningham, 42 Me. 98 ; to fish and divide the fish caught. Hurley r. Walton, 63 111. 
260 ; to make and divide bricks, Haycock v. Williams, 54 Ark. 384, 16 S. W. 3 ; Lamont 
V. FuUam, 133 Mass. 583 ; Chapman v. Lipscomb, 18 S. C. 222 ; to manufacture and 
divide lumber, Robinson v. Bullock, 58 Ala. 618; Stoallings v. Baker, 15 Mo. 481. 
Contni, Musier v. Truni])bour, 5 Wend. 274. See Everitt v. Cliapman, 6 Conn. 347 ; 
Loomis V. Marshall, 12 Conn. 69 ; Bncknam c. Barnum, 15 Conn. 67, 73. 

So where the owner of land agreed to allow a ditch to be built through the land, and 
to pay a quarter of the expense, and he was to have a quarter interest in the ditch and 
water, this was held not to be a partnership. Fitzell v. Leaky, 72 Cal. 477, 14 Pac. 198. 

Where, however, the agreement is interpreted as securing a division of the proceeds 
of the product, and not of the product itself, there is a jiartnership. Ensign v. Wands, 
I Johns. Cas. 171 ; Farmers' Ins. Co. v. Ross, 29 Oh. St. 429 ; Whitney v. Ludington, 
17 Wis. 140. 

9 Fail V. McRee, 36 Ala. 61. 



54 THE LAW OF PARTNERSHIP. [CH. V. 

if persons purchase goods to be sent on a mercantile adventure, 
the proceeds to be reinvested in a return cargo, though there be a 
partnership in the buying of the goods, and in the sending of them 
abroad and tliere selling them, there is still no partnership in the 
purchase or the ownership of the return cargo, unless that cargo 
was to be sold for the common benefit. For if it is to be divided 
m specie, each of the company taking in severalty his share, it 
may be doubted whether it could be said that there was any 
partnership in the return cargo. (A) 

So if three or four persons agree to buy jointly all of a certain 
commodity in the market, and agree that one only shall buy for 
all, and that what he buys shall be divided between them, they 
are not partners, for the want of a community in the disposition 
of the merchandise. (^) 

§ 62. Professional Partnerships. — Professional men, like physi- 
cians or lawyers, are partners, if the earnings of all come into a 
common stock or fund, and not until then are divided and held in 
severalty, (j^ They may call themselves partners ; but if each 
charges in his own favor what he earns, and each has a right to 
demand and sue for this in severalty, they are not partners 
inter se, however liable they might be to others from calling 
themselves so. (k} 

§ 63. Contributions of Capital. — It is not necessary that each 
partner should bring into the common stock both labor and prop- 
erty. It is a familiar principle, quite frequently put in practice, 
that one or more of the partners may contribute money alone, 

Putnam v. Wise, 1 Hill, 234; Barton v. (j) Bond v. Pittard, 3 M. & W. 357. 

Williams, 5 B. & Aid. 395 ; Noyes v. In Darracott v. Penington, 34 Ga., the 

Cushman, 25 Vt. 390. court consider the nature and objects of a 

(/t) Holmes v. United Insurance Co., law partnership. See Atkinson v. Mac- 

2 Johns. Cas. 329 ; Post v. Kimberly, kreth, L. R. 2 Eq. 570. 

9 Johns. 470. See Thorndike v. De Woff, (k) Finckle v. Stacy, Sel. Ca. Ch. 9, 

6 Pick. 120 ; United Insurance Co. v. where joint articles were entered into by 

Scott, 1 Johns. 106. The same principle two persons for the doing a particular 

is frequently illustrated in cases where piece of work, on account of which several 

goods, purchased either with joint or sep- sums of money were jointly received by 

arate funds, are sent on a common adven- them, and immediately divided between 

ture, but are to be sold by the consignee them ; though the court was of opinion 

or agent on separate account. Harding v. that it was not to be considered a part- 

Foxcroft, 6 Me. 76 ; Jackson v. Eobinson, nership, but only an agreement to do a 

3 Mason, 138 ; Hall v. Leigh, 8 Cranch, particular act, between which there was 
50. See also Felichy v. Hamilton, 1 Wash, great difference ; and that it was so was 
C. C. 491 ; Osborne v. Brennan, 2 N. & plain, for the money which thej' received 
McC. 427 ; Gibson v. Lupton, 9 Bing. 297; they immediately divided, and did not lay 
Sims V. AVilling, 8 S. & R. 103. out on a common account. See also Por- 

(?) Coope V. Eyre, 1 H. Bl. 37. See ter v. Jl'Clure, 15 Wend. 187. 
Ward V. Gaunt, 6 Duer, 257. 



§63.] 



WHO ARE PARTNERS. 



55 



while one or two others may contribute labor and money, or 
labor alone. (/) And indeed all may contribute labor, and none 
money, (/n) 

The doctrine is laid down in some cases, that there may be a 
partnership in the i)rolits, where there is none in the property, (n) 
This seems opposed to the nature of a partnershij), in which there 



(/) Reid V. Hollinshead, 4 B. & C. 
867 ; Ex parte Chuck, 8 Bing. 469 ; Can- 
dler V. Candler, d Madd. 141 ; Bovill v. 
Hammond, 6 B. & C. 149 ; Dob v. Halsey, 
16 Johns. 34 ; Cregj^ Towtislii[i v. Halt- 
Moon Tovvnshijt, 2 Watts, 342 ; Simpson 
V. Fetz, 1 McCord Ch. 213 ; Potter v. 
Moses, 1 R. I. 430 ; Winship v. Bank 
of the United States, 5 Pet. 529 ; Tihhatts 
i;. Tibhatts, 6 Mcjjean, 80 ; Biace v. 
Washburn, 43 Me. 564; Wood v. Val- 
lette, 7 Oh. St. 122. See Dwinel v. 
Stone, 30 Me. 384 ; Wright v. Davidson, 
13 Minn. 449 ; Parker v. Cantield, 37 
Conn. 250 ; Pettee v. Appleton, 114 Mass. 
114 ; Howland v. Long, 45 Md. 439. So 
an agreement that A. shall fnriush a stock 
of goods, shop fixtures, &c., and that B. 
shall pay the rent of the shop, manage 
the business, and pay A. interest on one- 
half of the fixtures, the profits to be di- 
vided equally, renders A. and B. partners 
as to third jjarties, although it be orally 
understood, at the time of executing the 
agreement, that the share of profits to B. 
shall be in lieu of salary. Brighani v. 
Clark, 100 Mass. 430. Where one con- 
tributes the use of real estate, and the 
other furnishes eajjital and labor, where- 
by the former is utilized, the profits to 
be divided, a partnership is constituted. 
Wood V. Beath, 23 Wis. 254 ; Dalton v. 
Dalton, 33 Ga. 343. Anything of value 
for the use of the partnership, as for 
example a license to trade, is a sufficient 
contribution to the joint funds. The 
Herkimer, Stewart Adm. 23, 24. Nor 
need the property itself be put into the 
common stock. On the other hand, the 
capital of a firm may consist of the mere 
use of pioperty owned by the individual 
partners separately. Chancellor Wal- 
woi'th, in Champion v. Bostwick, 18 
Wend. 183. 

(hi) Not only may one partner con- 
tribute labor alone to the joint under- 
taking, Imt the contributions of all the 



partners, and the whole capital of the 
tirni, may consist substantially of per.sonal 
services, as is generally tlie case in piofes- 
sional partnershii)s between soiicitois, 
{•hysicians, ic. See Tench v. Roberts, 
6 Madd, 145, note (a). So where two 
commission houses, one in London, the 
other in Rio Janeiro, in accordance with 
mutual stipulations, recommend customers 
to each otlier, and divide equally the com- 
missions on the sitle of all goods thus re- 
commended by the one house to the other, 
quoad hoc they are partners, the capital of 
the partnership being the partners' mutual 
exertion of influence in each other's favor. 
Cheap V. Cramond, 4 B. «Ss Aid. 663. See 
Dix V. Otis, 5 Pick. 38. 

(a) Mever v. Sharpe, 5 Taunt. 74 ; 
Ex parte Hodgkinson, 19 Ves. 291 ; Dry 
V. Boswell, 1 Camp. 329 ; Wi.sh v. Small, 
1 Camp. 331, note; Patterson, J., in Bur- 
nell I'. Hunt, 5 Jur. 650 ; Mair v. Glennie, 
4 M. & S. 240; Ward v. Thompson, 1 Newb. 
Adm. 95 ; Bryant v. Wardell, 2 Exch. 
479 ; Brigham v. Dana, 3 Williani.s, 1. 
[Bullard V. Smith, 139 Mass. 492, 2 X. 
E. 86.] In Chase v, Barrett, 4 Paige, 
148, however, the doctrine is distinctly 
asserted by AVahvorth, Chancellor, that, 
to " constitute a partnership as between 
the parties themselves, there must be a 
joint ownership of the partnership funds, 
according to the intention of the ]>arties." 
See also Dwinel v. Stone, 30 Me. 384 ; 
Lowry v. Brooks, 2 McCord, 421 ; Ogden 
r. Astor, 4 San<lf. 322 ; Beecham v. Dodd, 
3 Harr. (Del.) 485; McCauley y. Cleveland, 
21 Mo. 438. So where three parties agree 
"to enter upon an operation embracing the 
purchasing and selling of shingles," — one 
to purchase, and the other two to receive 
and sell, the shingles to Vie the property 
of these two, who were to furnish the 
capital, — all to share equally the profits 
and losses, the}' are partners. Getchell 
V. Foster, 106 Mass. 42. 



56 



THE LAW OF PARTNERSHIP. 



[CH. V. 



is a contribution of something for the joint benefit. Whatever is 
contributed becomes the i)roi)erty of the partnership, and die 
partners have equal power over it. Tlie true explanation seems 
to be that in such cases, though the property itself is not owned 
by the partnership, yet the use of it forms part of the capital 
stock, and is the contribution of that partner to whom the property 
belongs, (o) ^ 

§ 64. Failure of essential Element of Partnership. — The ])rin- 
ciples or rules above stated as defining or describing a partner- 
ship, may be further illustrated by cases in which joint business 
transactions have been conducted, but were held not to constitute a 
partnership, for the want of some essential ingredient, as where the 
contributions of all the parties were not mingled into common 
stock. (/») So where the capital and labor employed were not 
combined together for business purposes and a common profit, (q) 



(o) Hence the creditors of one who is 
partner only in the profits cannot take in 
execution the property which is contribu- 
ted as capital wliolly by the other partner. 
Ej' pirtc Hamper, 17 Ves. 404 ; Ex jMrtc 
lioulandson, 1 Rose, 89 ; Blanchard v. 
Cor.lidge, 22 Pick. 151 ; Bartlett i;. Jones, 
2 Strobh. 471. 

(p) In Smith v. Wright, 5 Sandf. 113, 
two mercantile houses had carried on a 
joint business under the following ar- 
rangement: Each firm agreed, in its own 
name and with its own funds, to make 
purcliases and sales of flour and other 
produce. But all such contracts were to 
be made for the joint account and benefit of 
the two firms, who were to share equally 
in the profits and losses resulting from 
the separate dealings of each firm in this 
particular line of business. Upon the 
(question whether this agreement constit- 
uted the parties to it partners, Sand ford, 
J. , said : " There was no union of funds 
contemplated by the agreement. Each 
firm was to make and fulfil its own con- 
tracts. There was no union of services, 
because it might so happen that one ot 
the firms would be unable, or deem it 
unwise, to make any contracts at all ; and 



yet, in the absence of bad faith, it would 
participate in the profits, and would 
certainly be liable to share the losses of 
the contracts made by the other firm. 
The whole effect of the agreement was to 
bind two distinct mercantile houses, act- 
ing in their own names, separately and 
independently of each other, to share the 
profits and losses, when they should be 
ascertained, arising from one paiticular 
department of their trade. We think that 
this did not constitute the two firms copart- 
ners in the contracts, which the respective 
separate firms made in the transaction ot 
that portion of their business." Benson 
V. M'Bee, 2 McMullen, 91. 

(q) Thus a deed of assignment by a 
debtor of all his propeiiy to trustees for 
the benefit of creditors, contaiidng a 
clause by which the trustees are author- 
ized to carry on the trade of the debtor, 
will not make the creditors who sign the 
deed partners, if the carrying on of the 
business is merely auxiliary to winding 
up the debtor's affairs, and has in view 
merely the realization of his jnojierty. 
Owen V. Body, 5 A. & E. 28 ; Janes v. 
Wliitbread, 11 C. B. 4(/6 ; Coate v. Wil- 
liams, 9 C. B. 481. 



'■ See the .language of Lord Cairns in Syers v. Syers, 1 App. Ca.s. 174, 181. By 
agreement between the partners, the title to [iroperty used in the business may remain 
in one partner. In such a case the use of tiie proiieity is contributed, and belongs to 
the partnership. Rushing v. Peoyiles, 42 Ark. 390 ; Stumph v. Bower, 76 Ind. 157 ; 
Hankey v. Becht, 25 Minn. 212 ; Clements v. Jessup, 36 N. J. Eii- 569. 



§ 05.] 



WHO ARE PARTNERS. 



57 



And it seems that tlierc is a difference between an enterprise 
undertaken by a number of persons jointly, with the intent 
thereby to diminish a loss, and one for the sake of profit, properly 
speaking, (r) 

A mere contingent interest in proi)crty, without light in the 
property of the iirm and without responsibility for losses, 
constitutes no partnership, (s). 

^ ^jH. Typical Form of Partnership. — The mOSt unmistakable, 
and perhaps the most common, form of partnership, is where two 
or more persons agree to contribute both capital and labor, and to 
share in both prolit and loss, equally or in certain specified pro- 
])ortions. (i) Such an agreement being executed, there can be no 
question as to the existence of a complete partnership.^ 

(r) As where underwriters, having Talbot, 2 Gol. 639, contract to keep and 

separately insured, and separately accep- sell cattle ; Anten v. Ellingwood, 51 How. 

ted an abandonment of a vessel, then (Pr. ) 359, editing and conducting a 

unite in prosecuting the original voyage, newspaper ; Marsh v. Is. W. Ins. Co., 3 

"it is carrying the general principle too Biss. 351 ; Lewis v. Greider, 51 N. Y. 

far to consider them in the light of com- 231, single mercantile adventure, — series 

mon partners," since they take the vessel of adventures ; but see Smith v. Wright, 

only for the purpose of diminishing a i Abb. A]ip. 274 ; cheese-factory associa- 

loss, and with no other view than to sell tion, Hawley v. Keeler, 62 Barl). 231 ; 

her at its termination. Livingston, J., in purchase of land and erecting buildings 

United Lis. Co. v. Scott, 1 Johns. 112. thereon, Kelshaw v. Jukes, 8 L. T. N. s. 

So, where a debtor, in consideiation of 387 ; joint contract to perform labor and 

his indebtedness, transfers the control of furnish materials, each a sjiecific part, 

his business to his creditors, the latter to Smitli v. jMoynahan, 44 Cal. 53 ; advance 

receive a large share of the profits until of money for prosecution of business to 

the indebtedness of the former shall be be reiihbursed out of sales, with share of 

reduced to a specified amount, the debtor jirofits in lieu of interest, Lintner v. Mil- 

and his creditors are not partners. Bran- likin, 47 111. 178. See also Edwards v. 

dred v. Muzzy, 1 Dutch. 268. See Price Tracy, 62 Pa. 374 ; Dailey v. Hall, 5 Bush, 

V. Groom, 2 Exch. 542 ; post, § 74. 549 ; Freese v. Ideson, 49 111. 191 ; Par- 

(s) Com. V. Bennett, 118 Mass. 443; ker v. Canfield, 37 Conn. 317. A debt of 



Haskins v. Warren, 115 Mass. 514; 
Campbell v. Dent, 54 Mo. 325 ; Eastman 
V. Clarke, 53 N. H. 276; Bendell v. 
Hettrick. 45 How. (N. Y.) Pr. 198 ; 
Crawford v. Austin, 34 JMd. 49 ; Morgan 
V. Stearns, 41 Vt. 397 ; Chapline v. Con- 



A. is transferred to and assumed by B., 
who is to pay it out of the profits of a 
piartnership. This does not make A. a 
member of the firm. Delaney i\ Timber- 
lake, 23 Minn. 383. [So an agreement 
that one party should furnish logs, the 



ant, 3 W. Va. 507 ; Parker v. Fergus, 43 other saw them at his mill, and the pro- 
Ill. 437 ; Smith v. Vanderberg, 46 111. 34 ; ceeds after jiayment of the expense of 
Mason v. Hackett, 4 Nev. 420 ; Hargrave marketing and selling be divided, does 
V. Conroy, 4 Green (N. J.), 281. As to not create a partnership. Nelms v. Mc- 
special facts which do not constitute a Graw, 93 Ala. 245, 9 So. 719.] 
]iartnership, see further Morrison v. Cole, (t) As to what particular facts consti- 
30 Mich. 102, contract of one to deliver tute a partnership in special cases, see 
to the other hay, which the latter is to innher Ej: parf.e Good, 5 Ch. D. 46 ; Duff 
take to market and sell ; Beckwith v. v. McGuire, 99 Iklass. 300 ; Decker v. 

1 Metcalf V. Royal Exchange Assur. Co., Barnard. Ch. 343; Green v. Beesley, 2 Bing. 
N. C, 108 ; Brown v. Tapscott, 6 M. & W., 119 ; Wilson v. Whitehead, 10 M. & W. 



58 THE LAW OF PARTNERSHIP. [CH. V. 

Where parties agree to enter into an association for the pur- 
pose of buying and selling, and carrying on a joint business 
indefinitely, no stipulation for dividing profit and loss is necessary, 
as that is an incident to the prosecution of their joint business.^ 

An agreement for a division of profits raises a presumption of 
partnership.^ 

§ 66. Partnership in a single Transaction. — It not Ullfrequcntly 
happens, that persons enter into partnership without knowing it; 
that is, they make a bargain together, without knowing that it 
creates or involves a partnership, and subjects them to the law of 
partnership This occurs most frequently when the agreement 
relates to a single transaction, or to one or two only. There is a 
common impression that nothing is a partnership at law which 
does not cover the whole ground of some kind of business ; but 
this is not so. If, for example, one has goods in the hands of a 
factor or commission merchant, and he and another person enter 
into an agreement for a valid consideration to share the profit 
and loss of those goods, this constitutes them partners ; and the 
rule has been applied in such a case, where the owner of the goods 
agreed to guarantee to the other party the solvency of the com- 
mission house, (w) So persons associating, and contributing 

Howell, 42 Cal. 636 ; mining enterprises, Hedge's Appeal, 63 Pn. 273 ; lumbering 
Pettee «. Appleton, 114 Mass. 114 ; Adams enter])rise, U])ham v. Hewett, 42 Wis. '85. 
V. Carter, 53 Ga. 160 ; brickmaking, {u) Salomons v. Nissen, 2 T. R. 674. 
Farmer's Ins. Co. v. Ross, 29 Ohio St. So, it' two ineicantile houses recommend 
429 ; farming, Beauregard v. Case, 91 consignments to eacli other, and divide the 
U. S. 134 ; leasing a railroad. Wills v. gross commissions on all sales of goods so 
Sinimonds, 51 How. (Pr. ) 48 ; agreement recommended, 7«oa(^/ioc they are partners, 
between tinner and plumber to work to- Cheap v. Cramond, 4 B. & Aid. 663. So, 
gether, Tyler r. Scott, 45 Vt. 261 ; job- also, where two jointly undertake to pro- 
bing, Gillbank v. Stephenson, 31 Wis. 592; cure a caigo for a vessel, the commission 
agreement to jiurchase and man a ferry- therefor to be divided between them, 
boat. Whitman v. Porter, 107 Mass. 522 ; Bovill v. Hammond, 6 B. & C. 149. 
joint-stock association, unincorporated, for And where D. & W. were owners of a quan- 
purchase of land and boring for oil, tity of salt, taken to secure themselves 

503 ; Emanuel v. Draughn, 14 Ala. 303 ; Soule v. Hayward, 1 Cal. 345 ; Fisher v. 
Sweet, 67 Cal. 228, 7 Pac. 657 ; Doak v. Swann, 8 Me. 170 ; Wadsworth v. Manning, 
4 Md. 59 ; Goddard v. Pratt, 16 Pick. 412 ; Quine v. Quine, 9 Sm. & M. 155 ; Halsted 
V. Schmelzel, 17 Johns. 80 ; Cumpston v. McNair, 1 Wend. 457 ; Griffith v. Butfum, 22 
Vt. 181. 

1 Miller V. Hughes, 1 A. K. Marsh. 181 ; Barrett ;;. Swann, 17 Me. 180. 

2 Badeley v. Consolidated Bank, 38 Ch. Div. 238 ; Meehan v. Valentine, 145 U. S. 
611 ; In re Francis, 2 Sawy. 286, 7 N. B. R. 359 ; Duryea v. Burt, 28 Cal. 569 ; Dubos 
V. Hoover, 25 Fla. 720, 6 So. 788 ; Niehott" r. Dudley, 40 111. 406 ; Lockwood v. Bonne, 
107 111. 235 ; Corey v. Cadwell, 86 Mich. 570, 49 N. W. 611 ; Philips v. Samuel, To 
Mo. 657 ; Fourth Nat. Bank v. Althcimer, 91 Mo. 190, 3 S. W. 858 ; Piobinson n. 
Allen, 85 Va. 721, 8 S. E. 835 (scinhle). 



§ 69.] WHO ARE PARTNERS. 59 

money to obtain a Ijill for a railroad, in Parliament, were held to 
be partners in this enterprise, (v) A known and acknowledged 
partnership, doing a regular business, may enter into a bargain 
for purchase, sale, and joint profit, with a third party, in regard 
to some single transaction, which makes them all partners therein. 
In such case, the third person is not admitted into the former 
partnership ; nor is the partnership which is created by the bar- 
gain one between the old partnershi[) and the new man; but the 
members of the old partnership, and the third person, all as indi- 
viduals, constitute a new partnership, {w) 

§ 67. Partnership to deal in Land. — It is generally lield that 
where two agree to buy land and re-sell it, sharing the profit, this 
constitutes them partners.^ It makes no difference that one party 
furnishes the money and takes title to the land, while the other 
furnishes his own services.^ It has however been lield that such 
an agreement did not constitute a partnership, but was a single 
joint adventure.^ 

§ 68. Relationships other than Partnership. — In accordance with 
the principles that have been laid down, if the parties have formed 
a relation inter se which is not in fact the creation of a partner- 
ship, their act cannot be relied upon to make them partners. 
For instance, if one becomes the servant, creditor, or landlord 
of the other he cannot, merely by coming into such a relation, 
be declared a partner, though in fact he may receive compensa- 
tion in the form of profits. This is now generally recognized in 
the cases. 

§ 69. Agent or Servant. — It is now quite settled that one acting 

against their joint liability as iudorsers of White, 3 B. Mon. 268 ; Benson v. M'Bee, 

a note, and by agreement between them D. 2 MeMull, 91. 

took the salt to market to sell on joint (v) Holmes v. Higgins, 1 B. & C. 74 

account, and did sell it, and the proceeds {w) Ex parte Gellar, 1 Rose, 297. [For 

were applied for the joint benefit, it was other instances of partnerships in a single 

held, that D. & W. were partners in this transaction, see Bobbins ii. Laswell, 27 

transaction. Cnmpston v. MeNair, 1 III. 365 (buying and selling cattle) ; 

"Wend. 457. In like manner, if the pro- Meador v. Hughes, 14 Bush 652 (buying 

prietors of separate lines of stage-coaches and jiacking hogs) ; Staples v. Sprague, 

hire and keep a stable in common for their 75 Me. 458 (cutting and packing ice) ; 

coach horses, and em|>loy and pay a hostler Lynch v. Thompson, 61 Miss. 354 (raising 

at their joint expense, a partnership exists and dismantling a sunken vessel) ; Henry 

between them for these purposes. Ripley v. Bassett, 75 Mo. 89 (attorne3'S jointly 

V. Colby, 23 N. H. 438. See Bentlcy v. employed in a law-suit).] 

1 Moore v. Davis, 11 Cli. D. 261 ; Yeoman v. Laslej', 40 Oh. St. 190 ■• Hulett v. 
Fairbanks, 40 Oh. St. 233 ; Canada ■;;. Barksdnle, 76 Ya. 899. 

2 Simpson v. Tenney, 41 Kas. 561, 21 Pac. 634. 
8 Clark V. Sidway, 142 U. S. 682. 



GO THE LAW OP PARTNERSHIP. [CH. V, 

for another as agent or servant does not become a partner with 
liabilities as such, merely by receiving a certain proj)ortion of the 
pi'ofits as his compensation.^ Ho where a broker or factor is paid 
by a proportion of the profits of sale he is not a partner.^ So it 
is generally held that sailors, who receive in lieu of wages a 
certjrin share of the profits of a voyage, are not thereby made 
partners with the other participators in the })rofits.3 But where 

1 Wilkinson v. Frasier, 4 Esp. 182 ; Mair v. Glennic, 4 M. & S. 240 ; Gpddes v. 
Wallace, 2 Bligh, 270 ; Stocker v. Brocklebaiik, 3 MuN. & G. 250 ; Walker v. Hirsrh, 
27 Cli. D. 460 ; Berthold v. Goldsmith, 24 How. 536 ; Hazard v. Hazard, 1 Story, 371 ; 
Moore v. Smith, 19 Ala, 774 ; Tayloe v. Bush, 75 Ala. 432 ; Olmstead v. Hill, 2 Ark. 
346 ; Haycock v. VVillianis, 54 Ark. 334 ; Le Fevre v. (Jastagnio, 5 Col. 564 ; Pond v. 
CuMimiiis, 50 Conn. 372 ; Stevens v. Faucet, 24 HI. 483 ; Fawcett v. Osborn, 32 III. 
411 ; Macy «. Combs, 15 lad. 469 ; Holbrook o. O'B^^rne (la.), 9 N. W. 291 ; Chairraix 
V. Price, 29 La. Ann. 176 ; Miller v. Chandler, 29 La. Ann. 88 ; Allen v. Dunn, 15 
Me. 292; Braley v. (Joddard, 49 Me. 115 ; Bull v. Schuberth, 2 Md. 38 ; Keddington 
V. Lanahan, 59 Md. 429 ; Baxter v. lljdnian, 3 Pick. 435 ; Blanchard v. Coolidge, 22 
Pick. 151 ; Partridge v. Kingman, 130 Mass. 476 ; Hamper's Appeal, 51 Mich. 71, 
16 N. W. 236 ; Gill v. Ferris, 82 Mo. 156 ; Newnian v. Bean, 21 N. H. 93 ; Atherton 
V. Tilton, 44 N. H. 452 ; Nutting v. Colt, 7 N. J. E(i. (3 Halsted) 539 ; Smith v. 
Perry, 29 N. J. L. (5 Dutcher) 74 ; Chase v. Barrett, 4 Paige, 148; Vanderbui'gh v. 
Hull, 20 Wend. 70 ; Barckle v. Eckart, 1 Den. 337, 3 N. Y. 132 ; Lewis v. Greider, 
51 N. Y. 231; Conklin v. Barton, 43 Barb. 435; Ross v. Drinker, 2 Hall, 415; 
Ogden V. Astor, 4 Sandf. 311 ; Motley v. Jones, 3 Ired. E(i. 144 ; McArthur v. Ladd, 

5 Ohio 514 ; Miller v. Bartlet, 15 S. & R.' 137 ; Potter v. Moses, 1 R. L 430 ; 
Lowry v. Brooks, 2 McCord, 421 ; Norment v. Hull, 1 Hunii.h. 320 ; Goode v. McCart- 
ney, 10 Tex. 193 ; Cothran v. Marmaduke, 60 Tex. 370 ; Buzard v. First Nat. Bank, 
67 Tex. 83, 2 S. W. 54 ; Missouri Pac. Ry. v. Johnson (Tex.), 7 S. W. 838 ; Brown v. 
Watson, 72 Tex. 216, 10 S. W. 395 ; Wilkinson v. Jett, 7 Leigh, 115 ; Kellogg v. 
Griswold, 12 Vt. 291; Stearns v. Haven, 16 Vt. 87 ; Mason v. Potter, 26 Vt. 722; 
Clark V. Smith, 52 Vt. 529 ; Sodiker v. Applegate, 24 W. Va. 411 ; Whitney v. Lud- 
ington, 17 Wis. 140 ; Nicholaus v. Thielge.s, 50 Wis. 491, 7 N. W. 341 ; La Flex v. 
Burss, 77 Wis. 538, 46 N. W. 801. Thus, in Muzzy v. Whitney, 10 Johns. 226, A. 

6 B. had agreed with a turnpike cori)oration to build and complete a certain road. 
They afterwards contracted with C. "to let him have a share of the profits, if any, in 
making the second ten miles bf the road, in proportion to the help he afforded in com- 
pleting the same, the one half of it to be taken from A.'s part, and the other from B.'s 
jtart." It was held that this agreement constituted no partnership between the ]iai'ties, 
Init only ap[)eared to be a mode of paying C. for his help and labor. In Rawlinson v. 
Clarke, 15 M. & W. 292, A., a surgeon and apothecarj', sold out his business to B., and 
further agreed to employ him.self for a year in transferring his business to B., — in con- 
sideration whereof B. agreed to give A., during the year, a moiety of the clear profits of 
the trade. It was held that by this agreement A. & B. were not made partners ; and 
that, upon a view of the whole deed, it would bear no other construction than that A. 
was to receive nothing more than a salary for the services he was Vo afford to B., in 
helping him to continue the business. See Salter v. Ham, 31 N. Y. 321. 

- Benjamin v. Porteus, 2 H. Bl. 590; Dixon v. Cooper, 3 Wils. 40 ; Gibbons v. 
Wilcox, 2 Stark. 43 ; Hesketh v. Blanchard, 4 East 144 ; Smith v. Watson, 2 B. & C. 
401. 

2 Wilkinson v. Frasier, 4 Esp. 182 ; Perrott v. Bryant, 2 Y. & Coll. 61 (explaining 
Coppard V. Page, Forrest, 1) ; Mair v. Glennie, 4 J\I. & S. 240. Duryee v. Elkins, 1 
Abb. Adm. 529; Reed v. Hussey, Bl. & H. 525; Brown v. Hicks, 24 F. R. 811; 



§ 70.] WHO ARE PARTNERS. 61 

one agreed to enter into a business, advance a certain sum of 
money, and take general charge of the business, and was to 
receive as compensation a fixed sum weelvly and such proportion 
of the net profits as the sum he advanced bore to the wliole capi- 
tal, it was held that he became connected with the business, and 
was a partner.! 

§ 70. Creditor. — Where one lends money to be used in business, 
receiving a part of the profits of the business in lieu of or in 
addition to interest on the loan, taking however no part in the 
conduct of the business, he is not a partner.^ But in order that it 
should be a loan, and not capital of a partnership, it must be 
clear that the money is to be repaid at all events whether the 
business is successful or not.^ It must also be clear that the par- 
tics do not contemplate the formation of an entity which is in 
fact a partnership, of which the lender shall be a member. Thus 
in Pooley v. Driver,* where the agreement provided that the money 
lent should be emi)l()yed in the business, and should not be drawn 
out during the continuance of the partnei'ship which carried it on, 
and sliould be paid back six months after the end of the partner- 
ship, and that the lender should receive an amount of profits 
based on the proportion of the loan to the whole amount invested 
in the business, the agreement was held to create a partnership. 
In such a case the advance is really made to the firm, not to the 
other partner personally.^ It would seem, however, that the part- 

CofSn V. Jenkins, 3 Story, 108; The Crusadfr, 1 "Ware, 437 ; Eice v. Austin, 17 Mass. 
197 ; Baxter v. Rodman, 3 Pick. 435 ; Grozier v. Atwood, 4 Pick. 234. 

So, in Bishop v. Shepherd, '23 Pick. 492, 494, the court said: "It has often been 
held that upon these wlialing voj'ages, carried on under a shipping-paper and 
form of contract like that exhibited in the present case, although the officers and 
seamen respectively are to receive a share of the proceeds of the oil and other acquisi- 
tions of the ship as their only compensation, yet they are not partners or part- 
owners of the oil with the owners of the ship ; but, on the contrary, the oil, heprre 
division, is the property of the owners. The oil, in the first instance, being the 
property of the owners, it remains theirs until some settlement or adjustment." 

1 Fougner v. First Nat. Bank, (111.) 30 X. E. 442. 

2 BuUen v. Sharp, L. R. 1 C. P. 86 ; Ex jmrtc Tennant, 6 Ch. D. 303 ; Meehan v. 
Valentine, 145 U. S. 611 ; Williams v. Fletcher, 129 111. 356, 21 N. E. 783; Clark 
V. Barnes, 72 la. 563, 34 N. W. 419 ; Sheridan v. Medara, 10 N. J. Eq. (2 Stoct.) 
469 ; Richardson v. Hughitt, 76 N. Y. 55 ; Eager v. Crawford, 76 N. Y. 97 ; Curry 
V. Fowler, 87 N. Y. 33 ; Cassidy v. Hall, 97 N". Y. 159 ; Harvey v. Childs, 28 Oh. St. 
319 ; Hart v. Kelley, 83 Pa. 286 ; Boston & Colorado Smelting Co. v. Smith, 13 R. I. 
27. In Drake v. Ramey, 3 Rich. 37, where the profits of a partner were by agree- 
ment paid to his individual creditor, the latter was not a partner. 

But see contra Parker v. Canfield, 37 Conn. 250 ; Conkling v. Washington Cniver- 
sity, 2 Md. Ch. 497 ; Bailey v. Clark, 6 Pick. 372 [scmUe). 

3 Eager v. Crawford, 76 N. Y. 97. 
* 5 Ch. D. 458. 

ij See Magovern v. Robertson, 116 N. Y. 61, 22 N. E. 398 ; Southern Fertilizer Co. 



62 



THE LAW OF PARTNERSHIP, 



[CH. V. 



nership relation is not established where there is a mere loan of 
money, unless the lender gets a right to exercise some control 
over the business.^ 

If money be lent to a firm for more than legal interest, this 
would be a usurious loan, (a;) but would not make the lender a 
partner. 

§ 71. Lessor. — Where the owner of property leases it for busi- 
ness purposes, agreeing to receive in return a proportion of the 
profits of the business, he receives the amount merely as rent, 
and is not a partner in the business.^ 

So where one party took cattle of the other party to fatten, and 



(x) Gestons v. Brooke, Cowp. 793 ; 
Parker v. Rauisbottoui, 3 B. & C. 257. 
When the principal is at liazard, there can 
be no usury. Accordingly, in Morse v. 
Wilson, 4 T. R. 353, where the lender of 
money was to receive a share of the profits 
of a trade in addition to legal interest, and 
to he liable to no losses, it was contended in 
his behalf that the contract was not usuri- 
ous, inasmuch as, by sharing in the profits, 
he was liable to creditors for all the partner- 
ship debts, and thus his princijial was in 
hazard. But Lord Kenyon, C. J., said : 
"Nothing can be clearer than this case. 
The plaintiff, without having any part- 
nership in contemplation, lent 2,000/. to 
H. W^ilson, for which he was to receive, 
not only 51. per cent interest, but also 
such surplus profits as should arise from 
these two shares in the business, he him- 
self not being bound, on the other hand, 
to make good to the partners any part of 
the losses whicli the trade might sustain. 
The sinij)le cpiestion is. Why, then, this 
is not an agreement to receive more than 
the 51. per cent allowed by law for the 
forbearance of a loan ? Most unquestion- 
ably it is ; and it is therefore void. It 
has been argued, however, that this was 
not an usurious contract, because the 



principal was put in hazard, as it was 
liable to the partnership creditors : but 
it was no farther hazarded than in the 
case of every other loan, namely, by the 
risk of the borrower's insolvency ; for, as 
between the plaintiff and the partners in 
the business, he was not liable to contrib- 
ute to the losses in the trade." Buller, 
J. : " In this agreement provision is made 
to receive the profits, but none to engage 
for the losses, of the trade. And, there- 
fore, it is not true that the plaintiff's piin- 
cipal was at stake ; since, by the terms of 
the contract, the trade is to be carried on 
by the other partners, and the plaintiff is 
only liable to make good the losses of the 
trade in the event of the insolvency of 
the other partners. But, as between tliese 
parties, if there be any losses, they must 
be borne by the defendant and the other 
partner ; and, if there be any profit, the 
])laintiff is to receive his proportion of it." 
On the other hand, in Morisset v. King, 
2 Burr. 891, a stipulation between the 
parties, by which the person advancing 
money to a trader was to be liable for a 
moiety of the losses by the trade, seems 
to have determined the court in holding 
the transaction not to be usurious. 



V. Reams, 105 N. C. 283, 11 S. E. 467 ; Rosenfield v. Haight, 53 Wis. 260, 10 N. 
W. 378. 

1 Clark V. Barnes, 72 la. 563, 34 N. W. 419. 

2 Parker v. Fergus, 43 111. 437 ; Holmes v. Old Colony R. R., 5 Gray 58 ; Thayer 
V. Augustine, 55 Mich. 187, 20 N. W. 898 ; Reed v. Murphy, 2 Greene (la.), 574 ; John- 
son V. Miller, 16 Ohio, 431 ; England v. England, 1 Baxt. 108 ; Felton v. Deall, 22 Vt. 
170 ; Bowyer v. Anderson, 2 Leigh, 550 ; Chapline v. Conant, 3 W. Va. 507. 

Contra, Dalton City Co. v. Hawes, 37 Ga. 115 ; Powell v. Moore, 79 Ga. 524, 4 S. E. 
383 ; and see Oppenheimer i;. Cleramons, 18 F. R. 886. 



§71.] 



WHO ARE PARTNERS. 



63 



his compensation was fixed at half the net proceeds over the 
agreed value of the cattle, this did not create a partnership 
between them.^ 

So where an owner of a farm lets it on half profits, the landlord 
and tenant certainly are not partners ; (?/) for if we suppose tlie ten- 
ant should go into great ex})ense for some new mode of cultivation, 
and become insolvent, no one would thinly of calling on the land- 
lord as liable on the tenant's contracts. So, in the very comliion 
case of shipments on half profits, it is never supposed that such 
a shipment makes a partnership between the shipper and ship- 
owner ; (z) and the same principle has been applied where one 



(y) Perrine y. Hankinson, 6 Halst. 181. 
Here, the profits of a tavern, as well as of 
a farm, were to V)e divided. Putnam v. 
"Wise, 1 Hill, 234 ; Blue v. Leathers, 15 
111. 31 ; Chase v. Barrett, 4 Paige, 148. 
The lease of a ferry has been considered 
analogous to a fanning lease, and a stipu- 
lation by which tlie lessee thereof was to 
divide with the lessor all the profits above 
a certain amount was held not to make the 
lessor and lessee liable as partners. Bow- 
yer v. Anderson, 2 Leigh, 550. So, when 
coal mines were leased. Heckert v. Fegely> 
6 W. & S. 139, 143. In Tibbatts v. 
Tibbatts, 6 McLean, 80, John W. Tibbatts, 
and Ann Tibbatts, his wife, leased unto 
Leo Tibbatts a stock farm under covenants 
and conditions substantially as follows : 
The said Leo to pay no rents during the 
term of the lease, and to manage and con- 
duct tlie business of the farm in accordance 
with his own judgment ; the stock and 
farming utensils on the farm at the time 
of the lease to be fairly valued, and at the 
end tlicreof to be accounted back in equal 
value ; Leo to have one-third, and John 
"W. Tibbatts and wife two-thirds, of the 
net profits to accrue by the same, and cur- 
rent expenses to be paid out of the general 
stock funds of the concern. The real estate 
ta.x was to be paid by John W. Tibbatts, 
and six per cent, interest to be allowed on 
all advances made by either of the parties. 
Leo was to keep regular accounts of the 
business of the farm, subject at all times 
to the inspection of John W. Tibbatts 
and wife ; and, in case of Leo Tibbatts's 
death during the term of the lease, peace- 



able possession was to be given to John W, 
Tibbatts and wife. Tlie court held, that 
" looking at the nature of the, above con- 
tract, aud the language used by the parties, 
there was less difficulty in considering it a 
partnership agieement, than a mere lease 
for the term specified, paying rent." See 
also Rrownlee v. Allen, 21 Mo, 123 ; Allen 
i;. Davis, 13 Ark. 28. 

(z) Hice V. Austin, 17 Mass. 205, 206. 
So a contract by which the owner of a 
vessel lets her in consideration of a share 
of her earnings, or of the proceeds of the 
adventure, does not make the ship-owner 
and the charterer partners. Reynolds v. 
Toppan, 15 Mass. 370 ; Taggard v. Loring, 
16 Mass. 336 ; Thompson v. Snow, 4 Me. 
264 : Winsor v. Cutts, 7 Me. 261 ; Cutler 
V. Winsor, 6 Pick. 335. See Cox v. 
Delano, 3 Dev. 89. Li French v. Price, 
24 Pick. 13, the defendants were sub- 
scribers of a contiact by which they agreed 
to become interested in a voyage and ad- 
venture, in certain definite ])roportions. 
They also, by the same instrument, ap- 
pointed two of their number to manage 
the business abroad, who were to receive a 
commission and monthly wages as com- 
pensation for their services, and two others 
to manage the business in this country, 
purchase a suitable cargo, &c., and to be 
allowed to charge two and a half per cent, 
on the amount of invoice and profits, and 
the same on all returns, but no commission 
for purchase or sale of vessel. They there- 
by also ratified the purchase of a vessel, 
which had been made by the home agents. 
Upon the (juestion whether this agreement 



1 Wish V. Small, 1 Camp. 331 ; Beckwith v. Talbot, 2 Col. 639, 95 U. S. 289. 



64 



THE LAW OF PARTNERSHIP. 



[CH. V. 



advanced money to buy troous, and consigned them, to be repaid 
out of the goods, and to have a part of the net profits, (a) 

§ 72. Annuitant. — A person may be in receipt of a sum from 
the profits of a partnership, without being chargeable as a partner, 
when one is entitled to an annuity from the firm. This happens 
most frequently in the case of a retiring partner, who as a part of 
his several jjroperty, or instead of some portion of his share in 
the partnership property which he leaves behind, is to receive an 
annuity for life, or for a certain number of years. This may 
occur also by the bequest of a deceased partner, who leaves his 
funds or a part of them in the firm, and gives an annuity to his 
widow or some other person out of the profits. It is agreed that 
if this annuity be certain, and in no way dependent on the amount 
of the profits, although payable out of them, then the annuitant is 
not a partner, {b) According to the case of Waugh v. Carver, an 
annuity which took the form of a share of the profits would make 



made the signers thereof partners, Morton, 
J., said : " Similar transactions and enter- 
prises are very common in our country ; 
and I believe, among merchants, never are 
considered or treated as partnerships. 
Many cases occur in which it may be 
extremely difficult to determine whether 
the joint-owners of pioperty hold it as 
partners or as tenants in common. The 
case at bar may be one of them. But 
although the connection between the 
owners of the plant and cargo certainly 
£ontams many of the ingredients and pro- 
perties of a partnership, yet, si)eaking for 
myself, I must say that in my o])inion it 
does not come up to that relation. The 
case of Thorndike v. De Wolf & Tr., 6 
Pick. 121, bears some resemblance to this ; 
and that of Jackson v. Eobinson, 3 Mason, 
138, seems to me decisive." 

(a) In Rice v. Austin, 17 Mass. 197, 
Putnam, J., said : " So in the case of 
shipments to India upon half- profits, so 
generally practised in this country : it 
would hardly be contended that the 
numerous freighters, often unknown to 
each other, have by such shipments be- 
come answerable for each other, or in any 
way interested as partners with the ship- 
owner, in respect to the dollars, which 
constitute the adventures, and which he 
undertook to carry to India for half the 
profits. . . . The resemblance between 



the cases now mentioned and the case at 
bar is veiy strong. The plaintiff advanced 
his funds to be invested by Lindsay in live 
oak in Florida, to be procured, cut, and 
transported, at the expense of l^indsay, but 
on the account and risk of the plaintiff, to 
the navy-yards of the United States ; and 
for the services and disbursements of 
Lindsay, he was to have half the profits, 
as the owners of the freighting ships to 
India are compensated for their services 
and disbursements ; and the plaintiff, for 
his risks and advances, was to have his 
principal sum repaid, and the residue of 
the profits. But it has never been thought 
that the return cargo was liable for the 
debts of the ship-owner." 

(b) See Young v. Axtell, 2 H. Bl. 243. 
In Waugh v. Carver, 2 H. Bl. 235, Lord 
C. J. Eyre says : " This case lias been 
extremely well ai'gued, and the discussion 
of it has enabled me to make up my mind, 
and removed the only difficulty I felt, 
which was. Whether by construing this to 
be a ])artnership, we should not determine 
that if there was an annuity granted out 
of a banking-house to the widow, for 
instance, of a deceased partner, it would 
make her liable for the debts of the house, 
and involve her in a bankrujitcy ? But 
I think this case will not lead to that 
conclusion," 



§ 75.] WHO ARE PARTNERS. 65 

the annuitant a partner. ^ But according to the better doctrine, if 
the proportional part of the profits is received by one who is simply 
an annuitant, this does not make him a partner.^ 

§ 73. Assignee for Benefit of Creditors. — If two or more 
creditors take an assignment of their debtor's stock in trade, and 
agree together and with him to carry on the business under the 
management of the debtor liimself or of a creditor and apply the 
profits to the payment of their debts due them, this does not of 
itself make them partners in the business.^ 

§ 74. Executor. — When an executor of a partner, by reason of 
directions in tiie will or otherwise, takes part with the surviving 
partners in carrying on the business, he becomes a partner.* But 
if he merely leaves the interest of the testator in the business, 
receiving a share of the profits but taking no part in the business, 
he is not a partner.^ 

§ 75. Association of Carriers. — A traffic arrangement between 
carriers, by which a through line is established and a through rate 
agreed upon, to be divided m certain proportions, does not create 
a partnership.^ This is clear, for there was no intention to create 
a new body to operate the through line ; each carrier was to 
operate his own line. But if the carriers intend to create a new 

^ III re Colbeck, Buck, 48 ; Ex parte Wheeler, Buck, 25 ; Ex parte Chuck, 8 Bing. 
469. See opinion of Master of Rolls, In re Stanton Iron Co., 21 Beav. 164. 

2 Jones V. Walker, 103 U. S. 444. 

8 Cox V. Hickman, 8 H. L. C. 268 ; Re English Society, 1 H. & M. 85 ; Holme v. 
Hammond, L. R. 7 Ex. 218 ; Davis v. Patrick, 122 U. S. 138 ; Pettis t>. Atkin.s, 60111. 
454 ; Purvis v. Butler, 87 Mich. 248, 49 N. W^ 564 , Brundred v. Muzzy, 1 Dutch. 268 ; 
U. S. Ins. Co. i;. Scott, 1 Johns. 106 ; Righter v. Farrel, 134 Pa. 482, 19 Atl. 687. 
But see Owen i'. Bod}', 5 A. & E. 28 ; Taylor v. Herring, 10 Bosw. 447. Compare 
Cavanaugh v. Riley, (Ky.) 19 S. W'. 745. 

* Mattison i-. Farnham, 44 Minn. 95, 46 N. W^. 347 ; Citizens' Mut. Ins. Co. v. 
Ligon, 59 Miss. 305 ; Wihl v. Davenport, 48 X. J. 129, 7 Atl. 295 ; Willis v. Sharp, 
113 N. Y. 586, 21 X. E. 705. 

5 Holme V. Hammond, L. R. 7 Ex. 218 ; Owens v. Mackall, 33 Md. 382 ; Phillips 
V. Blatchford, 137 Mass. 510 ; Avery v. Myers, 60 Miss. 367 ; Wild v. Davenport, 48 
N. J. L. 129, 7 Atl. 295 ; Richter v. Poppenhausen, 42 N. Y. 373 ; Willis v. Sharp, 
113 N. Y. 586, 21 N. E. 705. 

Before the case of Cox v. Hickman the English decisions held the executor liable 
as partner, since he received a share of the profits. Wightman v. Townroe, 1 M. k S. 
412 ; Ex parte Garland, 10 Ves. 110 ; Ex parte Holdsworth, 1 Mont. D. & D. 475. 

8 Insurance Co. v. Railroad, 104 U. S. 146; Citizens' Ins. Co. v. Kountz Line, 4 
Woods, 268 ; Montgomery & E. Ry. v. Culver, 75 Ala. 587 ; Hot Springs R. R. v. 
Trippe, 42 Ark. 465 ; Converse v. Norwich & X. Y. Tr. Co., 33 Conn. 166 ; Irvin v. 
Nashville, C. & S. L. Ry., 92 111. 103 ; Atchison, T. & S. F. R. R. v. Roach, 35 Kas. 
740, 12 Pac. 93 ; Darling v. Boston & C. R. R., 11 All. 295 ; Gass v. N. Y. P. k B. R. 
R., 99 Mass. 220 ; Wetmore v. Baker, 9 Johns. 307 ; Merrick v. Gordon, 20 N. Y. 
93. But see Cincinnati, H. & D. R. R. v. Spratt, 2 Duv. 4 ; Barter v. Wheeler, 49 
N. H. 9. 

5 



66 THE LAW OP PARTNEKSHIP. [CH. V. 

body to operate the line, they become partners. Thus where the 
owners of several steamboats united to establish a line of steam- 
boats and divide the profits, they were held partners, thouuli cacli 
owner retained the title and control of his own boat.^ But if in 
such cases the carriers do not own the profits resultinir fi-om the 
whole road, as a common fund out of which each is entitled to 
draw a certain share, but each one of them receives only those 
profits and bears only those losses which accrue from his own 
particular piece of road, there is now no such community of 
interest between them as to make them partners,^ even though the 
carrier making the most profit divides the excess.^ The carriers 
in such cases may however be jointly liable, not by reason of a 
partnership, but because the agent for whose act suit was brought 
acted for them jointly.* 

§ 76. Ownership in Common. — Partnership must be distin- 
guished from the joint management of property owned in common. 
Where two parties own a chattel and make a profit by the use of 
it, they are not partners without some special agreement which 
makes them so. Thus the joint owners of vessels are not part- 
ners in the management of the vessels,^ unless they form a special 
partnership association.^ 

So where two men agreed to share the expense of getting a 
patent, and to be " equal partners " in all losses and expenses, and 
in gains and profits it was held not to constitute a partnership.'^ 

1 Waland v. Elkiiis, 1 Staik. 272 ; Bowas v. Pioneer Tow Line, 2 Sawy. 21 ; 
Meaher v. Cox, 37 Ala. 201 ; Connolly v. Davidson, 15 Minn. 519 ; Chanijiion v. 
Bostwick, 18 Wend. 175. 

2 Ellsworth V. Tartt, 26 Ala. 733 ; Mohawk & Hudson R. R. Co. v. Niles, 3 Hill, 
162 ; Briggs v. Vanderbilt, 19 Barb. 222 ; Bousteel v. Vanderbilt, 21 Barb. 26 ; 
Pattison v. Blanchard, 5 N. Y. 186. 

3 Fay V. Davidson, 13 Minn. 523. 

* Cobb V. Abbot, 14 Pick. 289. 

* Watson on Part. 5, 6 ; Ersk. Inst. b. 3, tit. 3, § 18 ; 2 Bell Comm. 655 (5th 
ed.); Ex parte Young, 2 V. & B. 242 (overruling Doddington v. Hallet, 1 Ves. Sr. 497); 
Ex parte Harrison, 2 Rose, 76; Green v. Briggs, 6 Hare, 395 ; Jackson v. Robinson, 3 
Mas. 138 ; The Daniel Kaine, 35 F. R. 785 ; Patterson v. Chalmers, 7 B. Mon. 595 ; 
Harding v. Foxcroft, 6 Me. 76 ; Knowlton v. Reed, 38 Me. 246 : Lamb v. Durant, 
12 Mass. 54 ; Thorndike v. De Wolf, 6 Pick. 120 ; French v. Price, 24 Pick. 13, 18, 
19 ; Runnels v. Moffat, 73 Mich. 188, 41 N. W. 224 ; Ward v. Bodeman, 1 Mo. 
App. 272; Porter v. McClure, 15 Wend. 187 ; Knox v. Campbell, 1 Barr, 366 ; Hop- 
kins V. Forsyth, 14 Pa. 34 ; Adams v. Carroll, 85 Pa. 209. 

6 Holderness v. Shackels, 8 B. & C. 612, 618 ; Macy v. De Wolf, 3 W. & M. 193 ; 
Hendy v. March, 75 Cal. 566, 17 Pac. 702 ; Hewitt i;. Sturdevant, 4 B. Mon. 453 ; 
Patterson v. Chalmers, 7 B. Mon. 595 ; Hardy v. Sproule, 29 Me. 258 ; Gardner 
I'. Cleveland, 9 Pick. 334 ; Bulfinch v. Winchenbach, 3 All. 161 ; Hinton v. Law, 10 
Mo. 701 ; Mumford v. Nicoll, 20 Johns. 611 (reversing Kicoll v. Mumford, 4 Johns. 
Ch. 522) ; King v. Lowry, 20 Barb. 532. See Merritt v. Walsh, 32 N. Y. 685. 

7 Fraser v. Gates, 118 III. 99, 1 N. E. 817. 



§ 77.] WHO ARE PARTNERS. 67 

But it is possible to form a partnership association, of wliich the 
contemplated patent shall constitute the capital.^ In the same 
way joint owners of a patent are not necessarily partners, though 
they may by agreement become so.^ In French v. Styring ^ two 
joint owners of a race-horse had entered into an arrangement 
by whicli one of them had the entire management of the horse, and 
paid in advance all the expenses of keeping, training, &c. Tlie other 
co-owner was to pay a moiety of these expenses, and to share equally 
in the earnings. One of tlie questions raised in the case was, 
whether that agreement constituted a partnership. On this ques- 
tion the court was divided ; but since they allowed the plaintiff to 
recover, the necessary result of the case would seem to be that no 
partnership existed. This is without doubt the true view. 

§ 77. Joint Legatees. — Where property is left to two or more 
persons by a will, in such a way that they would take it as joint 
tenants, or as tenants in common, and they take it as partners, 
and continue to hold and use it as partnership stock, their rights 
to and in the property, and against each other in relation to the 
property, are governed by the law of partnership, (c) To this it 
may be said, by way of exception, that if the will contained 
distinct expressions which would give to the property the quality 
of joint-tenancy, even when it should be lield in partnership, 
these words, in reference to the legatees, would take effect, (^d) 

(c) Jackson v. Jackson, 7 Ves. 535. the purposes to which the testator had 
Same case on appeal, 9 Ves. 591. In devoted his property, nor from any other 
this case, personal property, including consideration, gone the length of provid- 
leaseholds, property in trade, &c., was ing that the residuary legatees should not 
left to A. & B., as residuary legatees. By have any power of destroying the original 
both the Master of the Rolls, and the joint-tenancy by their acts and agreements. 
Lord Chancellor on appeal, it was held, A. & B. then possessing the power of sev- 
that they took it originally as joint- ering the joint-tenancy, he held, that they 
tenants. But the Master thought the had exercised it, both as to the capital 
bequest positive, and that there were no and the profits, by acting for twelve years 
circumstances by which he could be guid- as partners in trade therein ; and that, 
ed in giving to the words of the will any therefore, they were to be considered as 
other than their literal import. Therefore tenants in common of the property em- 
he decreed that, on the death of A., all barked in trade, from the time they were 
the property thus bequeathed, excepting let into possession. See 2 Hov. Supp. 66. 
a portion of the accrued profits, belonged {d) As where a testator, after making 
to B., the survivor. The Lord Chancellor, considerable pecuniary and other legacies, 
on the other hand, held, that the will without making any express disposition 
had, neither from the obvious intention, of the residue of his personal estate, con- 

1 Soraerby v. Buntin, 118 Mass. 279. 

2 Parkhurst v. Kinsman, 1 Blatch. 488 ; Boeklen v. Hardenburgh, 37 N. Y. Super. 
110; Penniman v. Munson, 26 Vt. 164. 

8 2 C. B. X. s. 357. See also Hawes v. Tillinghast, 1 Gray, 289. 



68 THE LAW OP PARTNERSHIP. [CH. V. 

§ 78. Proof of Partnership. — When joint defendants are sued 
as partners, the burden is on the plaintiff to prove them so.^ 
Partnership may be proved as well by circumstantial evidence as 
by direct proof ;2 but general reputation is not evidence of part- 
nership,^ or of its dissolution,* though if a partnership is proved, 
general reputation is admissible to prove whether or not a par- 
ticular partner is dormant or active,^ and it would seem that a 
disinterested person may testify who compose a firm.^ 

A member of a firm may of course testify who his partners 
are;' though if the agreement is proved, one party to it cannot 
testify that the other party is his partner, since that is a question 
of law rather than of fact.^ So the existence of a partnership 
may be proved by the separate admissions of all who are sued ; 
or by the acts, declarations, and conduct of the parties ; or by the 
act of one, and the declarations or conduct of others ; ^ and one 
who admits that he is partner in a business may be held liable 
personally, on his admission.^^ But the declaration of one who 

stituted his two eldest sons his executors, appeal, all agreed that actual dealing in 

Though the executors had carried on trade partnership with effects left to two jointly, 

together with a portion of the residue, it with intent that it should be a dealing 

was, nevertheless, held, that, upon the in partnership, though they had taken 

death of one of them, the whole of the under the will as joint-tenants, yet having 

residuum survived to the other. Hall v. once begun to act with the property as 

Digby, 4 Bro. P. C. 224. In 9 Ves. 596, merchants, would sever the joint-ten- 

the Lord Chancellor thus states the prin- ancy, unless the will contains something 

ciple upon which the case was decided : that would clothe the property, though 

"In that case Mr. Fazakerley, Sir John engaged in trade, with the quality of 

Strange, and the other considerable per- joint-tenancy." 
sons who signed the reasons upon the 

1 Eichel V. Sawyer, 44 F. R. 845 ; Lieb v. Craddock, 87 Ky. 525, 9 S. W. 838 ; 
Hallstead v. Coleman, 143 Pa. 352, 22 Atl. 977. 

' McEvoy V. Bock, 37 Minn. 402, 34 N. W. 740 ; Rogers v. MuiTay, 110 N. Y. 
658, 18 N. E. 261. 

3 Metcalf V. Officer, 2 F. R. 640 ; Marble v. Lypes, 82 Ala. 322, 2 So. 701 ; Tan- 
ner & Delaney Engine Co. v. Hall, 86 Ala. 305, 5 So. 584 ; Campbell v. Hastings, 29 
Ark. 512 ; Bowen v. Rutherford, 60 111. 41 ; Sager v. Tupper, 38 Mich. 258 ; Smith 
V. Griffith, 3 Hill, 333 ; Adams v. Morrison, 113 N. Y. 152, 20 N. E. 829 ; Wallis v. 
Wood, (Tex.) 7 S. W. 852; Emberson v. McKenna, (Tex.) 16 S. W. 419. 

* Pitcher v. Barrows, 17 Pick. 361. 

5 Metcalf V. Officer, 2 F. R. 640. 

6 Hodges V. Tarrant, 31 S. C. 608, 9 S. E. 1038. 

' First Nat. Bank of ^Yausau v. Conway, 67 Wis. 210, 30 N. W. 215. 

8 Alexander i'. Handley, (Ala.) 11 So. 390. 

9 Jennings v. Estes, 16 Me. 323; Welsh v. Speakman, 8 W. & S. 257 ; Hanghey i'. 
Strickler, 2 W. & S. 411 ; Johnston v. Warden, 3 Watts, 101 ; Cornhauser v. Roberts, 
75 Wis. 554, 44 N. W. 744. 

1'^ In Sangster v. Mazarredo, 1 Stark. 161, where the action was assumpsit against 
four as the acceptors of bills of exchange, three of whom resided abroad and had been 
outlawed, it was held, that an admission of partnership by one was evidence as against 



§ 78.] WHO ARE PARTNERS. 69 

claims to be partner in a business is not admissible against 
anotlier to prove bim a copartner.^ So the books of a firm 
cannot be admitted to prove one a partner in the firm, (e) 

(r) [Bryce v. Joynt, 63 Gal. 375.] So Barb. Ch. 105, 116 ; Cliapin v. Coleman, 
it seems to be settled, as a general rule, 11 Pick. 331. See Studdy v. Sanders, 2 
that a plaintiff cannot prove the part- D. & R. 347 ; Pritchard v. Draper, 1 Russ. 
nership of those whom he had made de- & M. 191 ; Bevans v. Sullivan, 4 Gill, 
fendants, by the admissions of one of 383. 

them made in his answer tiled to a bill It was held in one case, Whately v. 

in equity ngainst him. Rooth v. Quin, Manhim, 2 Esp. 608, that in an action 
7 Price, 193 ; Field v. Holland, 6 Cranch, by A. against B. & C. as partners, A. 
8, 24 : Van Reimsdyk v. Kane, 1 Gall, might establish the partnership by put- 
630, 635 ; Clark v. Van Reimsdyk, 9 ting in evidence a verdict on an issue 
Cranch, 1,53, 156 ; Osborn v. U. S. Bank, between B. & C. directed out of a court 
9 Wheat. 788, 832 ; Christie v. Bishop, 1 of equity, to try whether they were part- 
that one of a joint promise by the four ; since, in a future action by the present 
defendant against his co-defendants for contribution, the record in the present case 
would not' be sufficient evidence of the joint liability. See Ellis y. Watson, 2 Stark. 
453, 478. But an admission by one that he is a partner with others is to be construed 
with reference to the circumstances under which it is made, and, if fairly applicable 
only to a single transaction, will not be sufficient to establish a general partnership. 
De Berkom v. Smith, 1 Esp. 29. See Ridgway v. Philip, 1 Cr., M. & R. 415. Where 
the issue of partnershijt was raised by a plea in abatement for the non-joinder of {parties 
as defendants, the admission of liability as a partner by one not joined in the suit, being 
gooil in an action against him, was held to be also receivable on this issue to prove him 
a partner. 2 Greenl. Ev. § 484 ; Clay v. Lanslow, 1 Moody & M. 45. 

1 Mont V. Mainwaring, 8 Taunt. 139 ; Burgue v. Firmin, 3 Stark. 53 ; Dit(^hburn 
V. Spracklin, 5 Esp. 31 ; Tinkler v. Walpole, 14 East, 226 ; Gibbons v. Wilcox, 2 
Stark. 43 ; Parker v. Brewer, 3 J. B. ]\[oore, 226 (see Evans v. Drummond, 4 Esp. 89, 
91 ; Heath v. Sansom, 4 B. & Ad. 172, 175) ; Oppenheimer v. Clemmons, 18 F. R. 
886 ; Cross v. Langley, 50 Ala. 8 ; Humes v. O' Bryan, 74 Ala. 64 ; Vanderhurst v. 
De Witt, 95 Cal. 57, 30 Pac. 94 ; Butte Hardware Co. v. Wallace, 59 Conn. 336, 22 Atl. 
330 ; Giliiin v. Temple, 4 Harr. 1, 90 ; McCutchin v. Bankston, 2 Ga. 244 ; Tumliu 
V. Goldsmith, 40 Ga. 221 ; Flonrnoy v. Williams, 68 Ga. 707 ; Phillips v. Trowbridge 
Furniture Co., 86 Ga. 699, 13 S. E. 19 ; Southwick v. McGovern, 28 la. 533 ; Degan 
V. Singer, 41 111. 28 ; Gardner v. North-Western Co., 52 111. 367 ; Vannoy v. Klein, 
122 Ind. 416, 23 N. E. 526 ; Evans v. Cornell, 1 Greene (la.) 25 ; Brown v. Rains, 53 
la. 81, 4 N. W. 867 ; Phillips v. Purington, 15 Me. 425 ; Tuttle v. Cooper, 5 Pick. 
414 ; Bridge ??. Gray, 14 Pick. 55 ; Ostrom i;. Jacobs, 9 Met. 454 ; AUcott v. Strong, 9 
Cush. 323 ; McNamara v. Eustis, 46 Minn. 311, 48 N. W. 1123 ; Boyd v. Ricketts, 60 
Miss. 62 ; Filley v. McHenry, 71 Mo. 417 ; Rimel v. Hayes, 83 Mo. 200 ; Converse v. 
Shambaugh, 4 Neb. 376 ; Grafton Bank v. Moore, 13 N. H. 99 ; Flanagin v. Champion, 
1 Green Ch. 51 ; Whitney v. Ferris. 10 Johns. 66 ; Whitney v. Sterling, 14 Johns. 
215 ; McPherson v. Rnthbone, 7 Wend. 216 ; Mitchell v. Roulstone, 2 Hall, 351 ; Fenn 
I'. Timpson, 4 E. D. Smith, 276 ; Kirby v. Hewitt, 26 Barb. 607 ; Henry v. Willard, 
73 N. C. 35 ; Carson v. Gillitt (N. D.), 50 N. W. 710 ; Cowan v. Kinney, 33 Oh. St. 
422 ; Taylor v. Henderson, 17 S. & R. 453 ; Nelson v. Lloyd, 9 Watts, 22 ; Ander- 
son V. Levan, 1 W. & S. 334 ; Crossgrove v. Himmelrich, 54 Pa. 203 ; Edwards tJ. 
Tracy, 62 Pa. 374 ; Vanzant v. Kay, 2 Humph. 106 ; Buzard v. Jolly (Tex.) 6 S. W. 
422 ; Wallis v. Wood (Tex.) 7 S. iv. 852 ; Emberson v. McKenna, (Tex.) 16 S. W. 
419 ; Bundy v. Bruce, 61 Vt. 619, 17 Atl. 796 ; First Nat. Bank of Wausau v. Conway, 
67 Wis. 210, 30 N. W. 215 ; Strong v. Smith, 62 Conn. 39, 25 Atl. 395^ 



70 



THE LAW OF PARTNERSHIP. 



[CH. V. 



Whatever be the evidence offered to prove a partnership, it is 
said that parties denying it cannot give evidence of private 
conversation or correspondence to rebut that evidence, (eg) 

§ 79. Partnership in several distinct Firms. — There is nothing 
to prevent the same person from being a partner in several dis- 
tinct firms. (/) This may involve difficult questions of fact, or 
perhaps of law, arising from the complication of interests, 
especially in case of bankruptcy. (^) Some of these questions 
we shall hereafter consider, when we treat of bankruptcy and the 
settlement of a partnersliip estate. It seems, however, not only 
that a member of one partnership may become a member of 
another, but a member of one firm may enter into such a bargain 
with a third party, in respect to the interest of the first in the 
stock, business, or profits of his partnership, as shall constitute 
this third person and himself partners as to the interest of the 
first, although the partnerships are entirely distinct, the new from 
the old, and the third person acquires no rights and incurs no 
obligations in reference to the first partnership. (A) If the new 



ners. But this case has been questioned, 
by high authority, for reasons that seem 
entirely conclusive. 2 Stark. Ev. (7th 
Am. ed.) 808, n. And in Burgess v. Lane, 
3 Me. 65, it was held, that a verdict 
and judgment thereon can be admissible 
evidence of a copartnership in another 
action, only when both the parties to the 
second suit are the same as the parties to 
the first. See Fogg v. Greene, 16 Me. 282 ; 
Ellis V. Jameson, 17 Me. 235 ; Cragin v. 
Carleton, 21 Me. 492 ; Latham v. Ken- 
niston, 13 N. H. 203. See Folk v. Wilson, 
21 Md. 538. 

{ee) Freeman v. Smith, 2 Wall. 160. 

(J) Swan V. Steele, 7 East, 210 ; Bosan- 
quet V. Wray, 1 B. & C. 597 ; Elderkin v. 
W' inne, 1 Chand. 27. 

(g) See post, § 200 ; and Steele v. 
Stuart, L. E. 2 Eq. 84. 

(A) To this effect is tlie language of 
Eyre, C. J., in Bolton v. Puller, 1 B. & P. 
546 : " There can be no doubt that, as 
between themselves, a j)artnership may 
have transactions with an individual part- 
ner, or with two or more of the partners 
having their separate estate engaged in 
some joint concern in which the general 
partnership is not interested ; and that 
they may by their acts convert the joint 
j)roperty of the general partnership into 



the separate property of an individual part- 
ner, or into the joint property of two or 
more partners, or e converso. And their 
transactions in this respect will, generally 
speaking, bind third persons, and third 
persons may take advantage of them in 
the same manner as if the partnership 
were transacting business with strangers ; 
for instance, suppose the general partner- 
ship to liave sold a bale of goods to the 
particular partnership, a creditor of the 
particular partnership might take those 
goods in execution for the separate debt 
of that particular partnership. In some 
respects, therefore, an individual partner, 
or a particular partnership consisting of 
two or more of those persons who are 
partners in some larger partnership, may 
be consiilered as third persons in transac- 
tions in which the general partnership may 
happen to be engaged with their corre- 
spondent." The court proceeded upon the 
same principle in Brown v. De Tastet, Jac, 
284. There A., B., and C. being in part- 
nership, A. agreed with D. to give him a 
moiety of his share in the firm. It was 
held that an account might be decreed be- 
tween A. and D. without making B. and 
C. parties. See Glassington v. Thwaites, 

1 Sim. & S. 124. In Ex parte Barrow, 

2 Rose, 255, the two Slyths, father and 



§ 79.] 



WHO ARE PARTNERS. 



71 



partnership becomes insolvent, it would affect the old partnership 
only as the insolvency of any member tliereof would, (t) If a 
person belongs to two firms, lie may transfer to the credit of one 
of them his interest in the other, against the wishes of his part- 
ners in the second lirm ; nor would this necessarily operate a 
dissolution of the second firm, (j) i3ut it is so obvious that such 
complicated arrangements may bring ujton the j)arties great incon- 
venience and embarrassment, that they will continue to be very 
rare, even if they take place at all. 



son, were in partnership. They agreed 
to dissolve ; that the allairs of the i)art- 
nership should be settled by arbitration ; 
and that Slyth the younger should have 
one-third out of the prohts of the business, 
until some situation should be found for 
him. The affairs of the partnership were 
never adjusted ; but, shortly after, Slyth 
the elder, who remained in possession of 
the effects of the firm, formed a new jiart- 
nership with Gyles. A commission of bank- 
ruptcy having issued against the two SI yths, 
their assignees took possession of the effects 
of Slyth and Gyles, to an amount more 
than sufficient to pay the cre<Iitors of that 
firm. The question in the present case 
was to whom the sui-plus belonged, whether 
to the joint creditors of Slyth the elder 
and Slyth the younger, or to the separate 
creditors of Slyth the elder. The court 
lield that it was the separate ])ro[ierty of 
Slyth the elder. Lord Chancellor Eld(ju, 
in the course of his opinion, said: " Now 
Slyth the son was no partner in this (the 



new) partnership; for although Slyth the 
father might be obliged to give one-third 
of his profits to Slyth the son under this 
.arrangement, yet I take it to have been 
long since clearly established, that a man 
may become a partner with A., where A. 
and B. are partners, and yet not be a 
member of that partnership which existed 
between A. and B. In the case of Sir 
Charles Raymond, a banker in the city, a 
Mr. Fletclier agreed with Sir Charles 
Raymond that he should be interested so 
far as to receive a share of his profits of 
the business, and which share he had a 
right to draw out of the firm of Raymond 
& Co. But it was held that he was no 
partner in that partnership, had no de- 
auand against it, liad no account in it, 
and that he must be satisfied with a share 
of the ]ii'ofits arising and given to Sir 
Charles Raymond." See Freligh v. Miller, 
16 La. Ann. 418. 

(/) See preceding note. 

( j) Ru.ssell V. Leiand, 12 All. 849. 



72 THE LAW OF PARTNERSHIP. [CH. VI. 



CHAPTER VI. 

WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 

§ 80. General Grounds of Liability. — As we have seen tliat it is 
one of the essential qualities of partnership that upon each part- 
ner rests an absolute liability for the whole amount of every debt 
due from the partnership, it is of the utmost consequence, both to 
the creditors of a partnership and to actual or alleged members of 
it, to determine with certainty who they are upon whom this lia- 
bility rests ; or, in other words, who are partners in respect to 
third parties dealing with the firm. And this question is some- 
times as difficult as it is important. It is certain that persons 
may be held as partners as to third parties, who would not be 
deemed partners as between- themselves, (aa) 

The first thing to be remembered is, that persons may be 
charged as partners of a firm on either one of two perfectly dis- 
tinct grounds, to both of wliich we have already referred. One of 
these is, that the person actually is a partner. The other is, that 
he has, with his own knowledge and consent, been held forth as a 
partner, to the person having a claim, or to the public generally. 
In the great majority of cases these two causes unite ; that is, he 
is held forth as a partner who actually is one. The secret partner, 
on the one hand, or the merely nominal partner, on the other, are 
exceptions to the prevailing custom ; but such exceptions do occur, 
and not very unfrequently : and then the question is. What are the 
rules of law in regard to them ? 

The first which we state is, that the liability of a partner is 
fastened upon any person just as absolutely, and to all intents and 
purposes, by either one of these causes alone, as by both of them 
together. And the reason is obvious. If a man is in fact a part- 
ner in a mercantile or other partnership, the mere circumstance 

{aa) Grieff y. Boudousquie, 18 La. An. thority, and maybe held as partner, even 

631. A person may be so negligent as to though there be no community of interest 

be estopped to deny that a person who is or participation in profits. I71 re Jewett, 

managing his property is acting by his au- 15 N. B. R. 126. 



§ 80.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 78 



that he has been able to conceal this partnership from the world 
affords no reason whatever why he should not share in the lia- 
bilities of the known partners, (a) 



(a) That one who is a partner in fiict, 
though not known to be so, is liable upon 
all the partnership engagements to the 
same extent as though his name had never 
been concealed, is one of the oldest and 
best-established doctrines of partnership 
law. In Hoare v. Dawes, 2 Doug. 371, 
Lord Mansfield said : " I considered them 
at first as a sort of dormant partners. The 
law with respect to them is not disputed, 
namely, that they are liable when discov- 
ered, because they would otherwise receive 
usurious interest without risk." And in 
Saville v, Robertson, 4 T. R. 725, Lord 
Kenyon, C. J., said: "It is clear that if 
all these parties had been partners at the 
time when these goods were furnished, 
though that circumstance were not known 
to the plaintiff, they would all have been 
liable for the value of the goods. It is 
ejually clear that such an action might be 
maintained against the dormant partners 
alone, unless they pleaded in abatement." 
Coope V. Eyre, 1 H. Bl. 48 ; Gouthwaite 
V. Duckworth, 12 East, 421 ; Swan v. 
Steele, 7 East, 210; Ex parte Raleigh, 

3 Mont. & Ayr. 670 ; Evans v. Drummond, 

4 Esp. 89 ; Ex parte Cellar, 1 Rose, 297 ; 
Dyke v. Brewer, 2 C. & K. 828. The 
whole doctrine on the subject is thus stated 
by JIarshall, C. J., in Winship v. Bank of 
the United States, 5 Pet. 561 : " Partner- 
shifis for commercial purposes, for trading 
with the W'Orld, for buying and selling 
from and to a great number of individuals, 
are necessarily governed by many general 
principles, which are known to the public, 
which subserve the purpose of justice, and 
which societj' is concerned in sustaining. 
One of them is, that a man who shares in 
the profits, although his name may not be 
in the firm, is responsible for all its debts. 
Another more applicable to the subject un- 
der consideration is, that a partner, cer- 
tainly the acting partner, has power to 
transact the whole business of the firm, 
whatever that may be, and, consequently, 
to bind his partners in such transactions 
as entirely as himself. This is a general 
power, essential to the well conducting of 
business, which is implied in the existence 



of a partnership. When, then, a partner- 
ship is formed for a particular purpose, it 
is understood to be in itself a grant of 
power to the acting members of the com- 
pany to transact its business in the usual 
way. If that business be to buy and sell, 
then the individual buys and sells for the 
company ; and every person with whom he 
trades, in the way of its business, has a 
right to consider him as the company, 
whoever may compose it. It is usual to 
buy and sell on credit ; and, if it do so, 
the partner who purchases on credit in the 
name of the firm nmst bind the firm. This 
is a general authoiity held out to the world, 
to which the world has a right to trust. 
The articles of copartnei'ship are perhaps 
never published. They are rarely if ever 
seen, except by the partners themselves. 
The stipulations they may cont;iin are to 
regulate the conduct and rights of the par- 
ties as between theniselves. The trading 
world, with whom the company is in per- 
petual intercourse, cannot individually ex- 
amine these articles, but must trust to the 
general power contained in all partner- 
shij^s. The acting partners are identified 
with the company, and have a right to 
conduct its usual business in the usual 
way. This power is conferred by entering 
into the partnership, and is perhaps never 
to be found in the articles. If it is to be 
restrained, fair dealing requires that the 
restriction .should be made known. These 
stipulations may bind the partners, but 
ought not to affect those to whom they are 
unknown, and who trust to the ggneral 
and well-established commercial law. See 
Richardson v. Farmer, 86 JIo. 35. 

"The counsel for the plaintiff in error 
supposes that, though these principles may 
be applicable to an open avowed partner- 
ship, they are inapplicable to one that is 
secret. Can this distinction be main- 
tained ? If it could there would be a dif- 
ference between the responsibility of a 
dormant partner and one whose name was 
to the articles. But their res])onsibility, 
in all partnership transactions, is admitted 
to be the same. Those who trade with a 
firm on the credit of individuals whom 



74 



THE LAW OF PARTNERSHIP, 



[CH. VI. 



§ 81. Liability of Secret Partner, — A Secret partner is there- 
fore liable upon all the acting partner's contracts made within the 
usual scope of the partneishij) business,^ whether such contracts 
are really on partnership account or not. It might perhaps be 
said, that as no credit is given to the secret partner, and as his 
liability is wholly founded upon his interest, if it were shown that 
in fact he had no interest in a particular transaction, he ought 
not to be bound with reference to it, even though it were appar- 
ently within the regular course of the business carried on by the 
partnership. And there are cases in which the court seems to 
adopt this view. But the rule above stated rests upon the better 
reason and the stronger authority, {h) It has been held that a 



they believe to be lueiubcis of it take 
upon themselves the hazard that their be- 
lief is well founded. If they are mistaken, 
they must submit to the consequences of 
their mistake ; if their belief be verified by 
the fact, their claims on the partners, who 
were not ostensible, are as valid as on those 
whose names are in the firm. This dis- 
tinction seems to be founded on the idea 
that, if partners are not openly named, 
the resort to them must be connected with 
some knowledge of the secret stipulations 
between the partners, which may be in- 
serted in the articles. But this certainly 
is not correct. The responsibility of un- 
avowed partners depends on the general 
principles of commercial law, not on the 
particular stipulation of the articles." s. c. 
5 Mason, 176 ; Armstrong v. Hussy, 12 S. 
&R. 315; Mifflin v. Smith, 17 S. &R. 165; 
Graeff v. Hitchraan, 5 ^A'atts, 454 ; Given 
V. Albert, 5 W. & S. 333; Bisel v. Hobbs, 6 
Bla(;kf. 479 ; Braches v. Anderson, 14 Mo. 
441; Church v. Sparrow, 5 Wend. 223; Bax- 
ter i^. Clark, 4 Ired. 127; Everitt v. Chap- 
man, 6 Conn. 347; Reynolds v. Cleveland, 4 
Cow. 282; Kelley v. Hurlburt, 5 Cow. 534; 
In re Warren, 2 Ware ( ), Davies, 

324 ; Hadfield v. Jameson, 2 Munf. 66 ; 
Grosvenor v. Lloyd, 1 Met. 19 ; McDonald 
V. Millandon, 5 La. 406, 408; Lea v. Guice, 
13 S. & M. 656 ; Smith v. Smith, 27 N. H. 
244 ; Brooke v. Washington, 8 Gratt. 248 ; 
Hill V. Voorhies, 22 Pa. 680 ; Griffith v. 
Buffum, 22 Vt. 181 ; Pratt r. Langdon, 12 
Allen, 544. [Callender v. Robinson, 96 
Pa. 454; Gavin v. Walker, 14 Lea, 643.] 
A secret partner cannot avoid his liability 
to creditors by showing that, according to 



the law of the place where it was made, 
the contract of partnership as between the 
parties was void. Oakley v. Aspinwall, 
2 Sandf. 7. [Where a business is carried 
on by an ostensible sole trader, and he 
borrows money for the business, his secret 
partner is liable, though the money was 
misused. Gavin v. Walker, 14 Lea, 643.] 
{b) In Etheridge v. Binney, 9 Pick. 
272, where the two Binneys and John 
Winship carried on the manufacture of 
soap and candles in partnership, but in the 
name of John Winship alone, the principal 
question in the case being whether the 
Binneys were liable for moneys borrowed 
by Winship, the court instructed the jury 
that " the name of the firm here being 
only the name of the individual, a note 
offered in that name, unaccompanied by 
any representation, would of course import 
only a promise of John Winship alone ; 
and the credit being given to him alone, 
the creditor would not recover against the 
firm, without proving that the money 
actually went into the funds of the firm. 
But if the borrowing ]iartner states that 
he is one of a company, and that he bor- 
rows money for the company, or purchases 
goods for their use, then, as there is such 
company, and as they have given him 
authority to use the company credit to a 
certain extent, and as the creditor will 
have no means of knowing whether he is 
acting honestly towards his associates or 
otherwise, and he lends the money or sells 
the goods on the faith of such representa- 
tion, the company will be bound, unless 
they prove that the contract was for his 
private benefit, and known to be so by the 



1 Reab v. Pool, 30 S. C. 140, 8 S. E. 703. 



§ 81.J 



WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES, 75 



judgment obtained against an ostensible partner, upon a note given 
by him in his own name in the course of the partnership business, 



creditor." When two jiersons, under a 
piivate agreement, become [lartners as to 
third i)artie8, the contract specifying no 
firm name, but allowing each partner to 
purchase goods on his own individual 
creiiit, — one to transact the business, and 
tlie other to be unknown, — the dormant 
partner is not liable on a note for goods 
jiut into the concern by the other, and by 
him signed in his own name ; the signa- 
ture not being intended as the firm signa- 
ture, and the payee not having reason to 
su[)pose it to be such. Palmer v. Elliot, 1 
cut. 63. See also Mercantile Bk. i'. Cox, 
38 Me. 500. But see Hendrick v. Gunn, 
35 Ga. 234. In Lloyd v. Ashby, 2 C. & P. 
138, assumpsit was brought on a bill of 
exchange, accepted by " Ashby & Piow- 
land." The question was whether Shasv, 
a dormant partner with Ashby k liowland, 
was liable on the above acceptance. Shaw 
was not known as a partner, nor did his 
name appear in the partnership transac- 
tions. The bill in question was accepted 
in a matter having no relation to the part- 
nership business. Abbott, C. J.: "If 
Shaw had been known to be a partner, I 
should have held that it was taken on his 
credit ; and that, unless there was fraud in 
the plaintitf, he would be entitled to re- 
cover on it against Shaw ; but as the plain- 
tiff did not know that Shaw was a partner, 
and as he could not have taken the bill on 
Shaw's credit, I am of the opinion that 
the plaintitf cannot recover. I gi'ound 
myself on these circumstances, that ilr. 
Shaw was an unknown partner, and that 
the bill was not accepted for a debt from 
him, but for the raising of money from 
which he had no benefit." See also Young 
V. Hunter, 4 Taunt. 583, opinion of Gibbs, 
J. : Ex parte Bolitho, Buck, 100. See 
Miller v. Maince, 6 Hill, 114. But the 
doctrine of these decisions is certainly con- 
troverted by better considered and more 
weighty adjudications. Lloyd v. Ashby, 
supra, was afterwards reconsidered in the 
King's Bench ; and the court were of 
opinion that the plaintitf was entitled to 
recover, and a new trial was granted. 2 
B. & Aid. 23. The principle of the deci- 
sion in Vere v. Ashby, 10 B. & C. 288, is 



the same with that in 2 B. & Aid. 23 ; 
and in Wintle v. Crowther, 1 C. & G. 316, 
Bay ley, B., referring to the above cases, 
said; "Notwithstanding these cases, we 
are of opinion, that when a partnership 
name is pledged, the partnership, of whom- 
soever it may consist, and whether the 
partners are named or not, and whether 
they are known or secret partners, will be 
bound, unless the title of the person who 
seeks to charge them can be impeached." 
See Nichols v. Cheairs, 4 Sueed, 229. In 
Ross 17. Decy, 2 Esp. 469, the action was 
for goods sold and delivered ; plea set off. 
The plaintiffs entered into partnership as 
grocers, Ross to keep the shop in his own 
name only. He sold to the delendant the 
goods for the price of which the present 
action was brought. The defendant had 
done business for Ross on his separate 
account to a greater amount than the 
demand now made against him by the part- 
nership ; and this he offered to set off. 
Lord Kenyon was of opinion that the set- 
off was good. His lordship said, the j)lain- 
titfs had subjected themselves to it, by 
holding out false colors to the world, by 
permitting Ross to appear as the sole 
owner ; that it was possible the defendant 
would not have trusted Ross only, if he 
had not considered the debt due to himself 
as a security against the counter demand. 
Furtheimore, not only is a secret partner 
bound by all transactions within the scope 
of the partnership business, whether on 
partnership account in fact or not, but in 
Robinson r. W^ilkinson, 3 Price, 538, it is 
said to be " clear law that a dormant part- 
ner cannot discharge himself from liability 
to pay the debts of a creditor through the 
medium of his ostensible partner by any 
acts of his during the concealment of the 
unknown partner." There, Wilkinson 
•was a secret partner with Cay in a vessel. 
The plaintiff supplied the vessel with 
stores on the credit of Cay ; took Cay's 
sole bills for the amount of his debt ; 
allowed him to renew them when due, and 
afterwards, Cay proving insolvent, com- 
pounded with him for the unpaid portion 
of the debt, and received as security the 
acceptance of a third person. But the fact 



76 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



his copartner being unknown to the creditor was no bar to a joint 
action upon the same note against both the ostensible and the 
secret partner, (c) But this doctrine is opposed to the weight of 
American authority , and upon the ground that a partnership debt 
is, in this respect, joint only, and not joint and several, a judgment 
against the ostensible partner or partners, though unsatisfied, may 
be pleaded in bar to a subsequent suit upon the same cause of 
action, where both the ostensible and the secret partners are 
joined as defendants, {d) It has, however, been said, that the law 
as to dormant partners is confined to commercial partnerships, 
and does not extend to speculations in land, (g) 

§ 82. Liability of a Nominal Partner. — If such be the law in 
regard to one who is an actual but a secret partner, on the other 
hand, if he be not a partner in fact, but has, for or without a reason, 
suffered those who dealt with the firm, or any one of them, to 
believe that the firm had the guaranty of his liability as partner, 
and thus gave to the firm his credit, there are no grounds what- 
ever for permitting him to refuse to satisfy that guaranty, merely 
because the actual relation between him and the partnership 
would not of itself have created it. (/) To give to such a circum- 



of Wilkinson'.s interest in the ship being 
unknown to the jilaintitf during the time 
of these several transactions, it was hehi 
that he was not discharged by anything 
that had taken place. A similar decision 
was made in Chamberlain v. Madden, 7 
Rich. 395. 

(c) Sheehy v. Mandeville, 6 Cranch, 
253 (overruled in Mason v. Eldred, 6 
Wall. 231). See Van Ness v. Forrest, 8 
Cranch, 30 ; Watson v. Owens, 1 Rich. 
Ill ; Brozel v. Poyntz, 3 B. Mon. 178; 
Scott V. Cohncsnil, 7 J. J. Marsh. 416 ; 
Dennett v. Chick, 2 Me. 191 ; Nichols v. 
Cheairs, 4 Sneed, 229. 

(d) Robertson v. Smith, 18 Johns. 459; 
Ward V. Johnson, 13 Mass. 148 ; Smith v. 
Black, 9 S. &. R. 142 ; Moale v. Hollins, 
11 G. & J. 11 ; Willings v. Consequa, 1 
Pet. C. C. 301 ; Anderson v. Levan, 1 W. 
& S. 334. See further Pierce v. Kearney, 5 
Hill, 94; Mossu. McCullough, 5 Hill, 135, 
136 ; Ward v. Motter, 2 Eob. (Va.) 559, 
560 ; Nichols v. Anguera, 2 Mills, 290 ; 
Grafton v. The United States, 3 Story, 
649 ; United States v. Cushman, 2 Sumn. 
438 ; Gibbs v. Bryant, 1 Pick. 121 ; 
Peters v. Sandford, 1 Denio, 224 ; Van 
Valen v. Russell, 13 Barb. 593 ; Ledam 



V. Hodges, 4 McLean, 51 ; How v. Kane, 

2 Chand. 222 ; Philson v. Bampfield, 1 
Brev. 202. Whether, if a creditor has 
lost his right of action against all the 
partners, by obtaining judgment against 
the ostensible partner alone, equity will 
relieve him as against the dormant part- 
ners when discovered, see Penny i;. 
Morton, 4 Johns. Ch. 566 ; Willings v. 
Consequa, 1 Peters C. C. 301 ; Smith v. 
Black, 9 S. & R. 142 ; Ledam v. Hodges, 
4 McLean, 51 ; How v. Kane, 2 Chand. 
222. 

(e) Pitts V. Waugh, 4 Mass. 424 ; Smith 
r. Jones, 12 Me. 332 ; Smith v. Burnliam 

3 Sumn. 470. See post, § 269 [.scc^ (juery]. 

(/) Young V. Axtell, cited in Waugh 
V. Carver, 2 H. Bl. 235. There the ques- 
tion was, whether Mrs. Axtell was liable 
as partner with the defendant, for coals 
sold and delivered by the plaintiff. An 
agreement was in evidence, from which a 
partnership inter se was attempted to be 
proved ; but, it being shown that bills 
were made out for goods sold to her cus- 
tomers in their joint names, Lord Mans- 
field said : " However, as she suffered her 
name to be used in the business and held 
herself out as a partner, she was certainly 



§ 84.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PERSONS. 77 

stance this effect would be to sanction an obvious and easy fraud. 
It is, however, evident that he is liable as a partner only to those 
who have been led with his consent to believe him a partner, and 
who have trusted the firm on his credit, {jf) 

§ 83. General Authority of Partner, — The general principle 
which lies at the foundation of the partner's liability is, that every 
partner has full and absolute authority to bind all the partners by 
liis acts or contracts, in relation to the business of the firm, in the 
same manner and to the same extent as if he held full powers of 
attorney from all the members. No principle is better established 
than this : it rests not only on universal usage and universal author- 
ity, but on obvious reason and necessity ; because, if the rule were 
otherwise, a very large proportion of the advantages and facilities 
for which partnerships are formed would be lost. It must, however, 
be remembered that a partner binds the firm, necessarily only when 
he uses the name of the firm.^ Hence it has been held that the 
execution of a mortgage of personal property of a partnership, by 
one partner in his individual name, passes no title, (uii) 

§ 84. How far it may be limited. — This authority of each part- 
ner is only an implied one. It is a fair inference from the fact of 
partnership : it is an inference from the reason of the thing, as 
well as from the rules of law. But it is an inference which can- 
not be made when the partners disclaim it, honestly, in a reason- 
able way, and by act as well as word. Hence, if the act of a 
partner be forbidden by his copartners, and notice is given to the 
person with whom he deals, he no longer acts as their agent, and 

liable, though the plaintiti' did not, at the lentit only to two of them,to whom, without 

time of dealing, know that she was a partner, the others, they would have lent nothing." 

or that her name was used." The ground See further, in illustration of the general 

upon which persons held out as partners principle, De Berkom v. Smith, 1 Esp. 29; 

are made liable, as such, to third persons. Guidon v. Robson, 2 Camp. 302 ; Parsons 

is thus stated by Lord Chief Justice Eyre in v. Crosby, 5 Esp. 199; ^z parte Watson, 

AVaughv. Carver, supra: " Now, a case may 19 Ves. 461 ; Ex parte Matthews, 3 Ves, 

be stated in which it is the clear sense of & B. 125 ; Dolman v. Orchard, 2 C. & P. 

the parties to the contract that they shall 104 ; Stearns v. Haven, 14 Vt. 540 ; 

not be partners ; that A. is to contribute Cottrill v. Vanduzen, 22 Vt. 511 ; Furber 

neither labor nor money ; and, to go still v. Carter, 11 Humph. 271 ; Perry v. Pan- 

further, not to receive any profits. But, dolph, 6 S. & M. 335. See also post, § 93 ; 

if he will lend his name as a partner, he Fisher v. Bowles, 20 111. 396 ; Irwin v. 

becomes, as against all the rest of the Conklin, 36 Barb. 64 ; Bams v. Rowlands, 

world, a partner, not upon the ground of the 40 Barb. 368 ; Moss v. Jerome, 10 Bosw. 

real transaction between them, but upon 220 ; Moffat v. Moffat, 19 Bosw. 468. 
principles of general policy, to prevent (ff) Wood r. Pennell, 15 Me. 52. 

the frauds to which creditors would be (uu) Clark v. Houghton, 12 Gray, 38 ; 

liable, if they were to suppose that they and see Butterfield v. Hensley, 12 Gray, 

lent their money upon the apparent credit 226 ; and Cummings v. Parish, 30 Miss. 

of three or four persons, when in fact, they 41 2. 

1 Norton v. Thatcher, 8 Neb. 186. See post, § 98. 



78 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



his act is only his own. {iiuu') The great difiiculty is in drawing 
the line between a rule which would give to any partner, at his 
own pleasure, all the advantages and none of the liabilities of a 
partner, and, on the other hand, permitting reasonable and honest 
limitations or qualifications of liability which ought to operate on 
all who have contracted with full knowledge of t-liem, and have 
therefore assented to them, (v) It should be added, that the 



(mill) Yeager v. Wallace, .57 Pa. 365 ; 
[Ellis V. Allen, 80 Ala. 515, 2 So. 676 ; 
Moffitt V. Roche, 92 Ind. 96.] 

(y) Thus, in Aldeison v. Pope, 1 Camp. 
404 ; note (ri). Lord Ellen borough held, 
that when there was a stipulation between 
A., B., & C, who appeared to the world 
as copartners, that C. should not jiartici- 
pate in the profit and loss, and should not 
be liable as partner, C. was not liable as 
partner to those who had notice of this 
stipulation, and that notice to one mem- 
ber of a firm was notice to the whole 
])artnership. Compare with this case 
Brown v Leonard, 2 Chitty, 120. In 
Batty V. M'Cundie, 3 C. & ' P. 202, the 
defendants had become shareholders in a 
newspaper, the prospectus of which Col. 
Jones, one of the plaintiffs, who were 
partners, had been concerned in prepar- 
ing, and which stated that the subscribers 
were not to be partners, and were not to 
be liable for more than their subscrip- 
tions ; the present suit being brought for 
the price of stationery furnished for the 
newspaper. Parke, J. (in summing up), 
said : " The question is, whether Col. 
Jones, having a knowledge of all the 
circumstances, can maintain the action ; 
for it is clear that his knowledge is the 
knowledge of all the plaintiffs. There is 
no doubt that the defendants were pro- 
prietors ; but that will not make them 
partners. The question is, whether Col. 
Jones did not know that these persons, 
though called proprietors, were not to be 
deemed partners, and whether he did not 
give them an assurance that they would 
not be liable for more than their subscrip- 
tions ? The prospectus states that the 
subscribers are not to be partners ; and it 
is proved that he knew of that prospectus, 
and acted as treasurer under it. How can 
he, after this, say that the defendants are 
liable ? The question for our considera- 
tion is, whether Col. Jones does not accede 



to the proposition, that the defendants are 
not liable, and undertake that he will not 
look to them as responsible ? If you be- 
lieve the evidence in the sense that I have 
taken of it, I tell you, that, in point of 
law, the plaintiffs are not entitled to 
recover." In re Worcester Corn Exchange 
Co., 3 De G., M. & G. 180 ; Bailey v. 
Clark, 6 Pick. 372. See also Boardman 
V. Gore, 15 Mass. 339 ; Baxter v. Clark, 
4 Ired. 127 ; Denny v. Cabot, 6 Met. 93 ; 
Jordan v. Wilkins, 3 Wash. C. C. 115; 
Dow V. Sayward, 12 N. H. 271 ; Cargill 
V. Corby, 15 Mo. 425 ; Langan v. Hewett, 
13 S. & M. 122 ; Brent v. Davis, 9 Md. 
217. In Leavitt v. Peck, 3 Conn. 124, 
Hosnier, C. J., says : " It is a well-estab- 
lished principle, that the contract of a 
partner is obligatory for his copartner, by 
virtue of an implied authority, which 
may be rebutted by a refusal to be bound 
by his acts. By legal consequence, the 
partners whose authority is thus declined 
cannot bind the copartnership in favor of 
those who have knowledge of the fact . . . 
The principle under consideration is not 
founded at all on any supposed waiver of 
the creditor, but solely and exclusively on 
the declaration of the person declining to 
be bound. The implied authority of his 
partner he has annihilated ; and the con- 
tract in the name of the firm is of no 
validity beyond the personal obligation it 
imposes on the individual making it." 
So if, upon the dissolution of a copartner- 
ship, the outgoing partner assigns to the 
continuing partner all his interest in the 
outstanding partnership debts and ac- 
counts, the subsequent release of a debt 
by the outgoing partner to a debtor hav- 
ing notice of the agreement is void. 
Gram v. Cad will, 5 Cowen, 489. See Ex 
parte Harris, 1 Madd. 583. 

Partners sometimes give notice to 
particular persons, or to the public gen- 
erally, that they are not responsible for 



§ 8^-] 



WHO ARE LIABLE AS PARTNERS AS TO THIRD PERSONS. 79 



question whether, in any particular case, an alleged partner has 
disproved the evidence or rebutted the legal presumption of 



the acts of one or more of the other 
partners. Such repudiation of the ordin- 
ary liabilities of a partner, especially if it 
be with reference to a single transaction, 
is not, perhaps, necessarily inconsistent 
with the continuance of the [)artnership. 
But it more commonly happens when one 
or more of the partners wishes to dissolve 
the partnership and retire, while the rest 
choose to continue in the business. Such 
warnings by partners of limitations they 
mean to put to their own liability, and to 
the authority of the other partners, have 
the same effect, so far as third persons are 
concerned, as the communication of stip- 
ulations between partners restricting their 
liability, and upon similar principles. 
For, a partnership being once proved to 
exist, and the implied power of each part- 
ner to act for the others in everything 
within the scope of the partnership busi- 
ness being once given, the fair presump- 
tion upon which third parties are justified 
in acting is, that the partnership and the 
consequent implied authority of each 
partner still continue. But this pre- 
sumption is of course wholly rebutted by 
notice to the contrary, and can then no 
longer be a reason for holding the party 
giving the notice to liability as a partner. 
In Galway v. Matthew & Sniithson, 10 
East, 264, the defendants, partners in 
trade, were sued upon a promissory note. 
Matthew let judgment go by default ; but 
Smithson defended the action on the 
ground that the plaintiff, before he took 
the note in question, had notice of an 
advertisemrnt, then recently published in 
a newspaper by Smithson, wherein he 
warned all persons not to give credit to 
the defendant Matthew on his (Smith- 
son's) account, and that he would no 
longer be liable for drafts drawn by the 
other partners on the partnership account. 
The defendants having a verdict on this 
ground (Galway v. Matthew, 1 Camp. 
403), upon motion to set aside the non- 
suit. Lord EUenborough, C. J., said : 
" The general authority of one partner to 
draw bills or yjromissory notes to charge an- 
other, is onlyan implied authority; and that 
implication was rebutted in this instance by 



the notice given by Smithson, who is now 
sought to be charged, which reached the 
plaintiff, warning him that Matthew had 
no such authority. It is not essential to a 
partnership that one partner should have 
power to draw bills and notes in the part- 
nership firm to chaige the others : they 
may stij)ulate between themselves that it 
shall not be done ; and if a third person, 
having notice of this, will take such a se- 
curity from one of the partners, he shall 
not sue the others upon it, in breach of 
such stijiulation, nor in defiance of a notice, 
previously given to him by one of them, 
that he will not be liable for any bill or 
note signed by the others." Layfield's 
Case, 1 Salk. 292 ; Minnit v. Whinnery, 
2 Bro. P. C. 323, 16 Vin. Abr. 244 ; Ex 
parte Harris, 1 Madd. 583 ; Vice v. Flem- 
ing, 1 Y. & J. 227 ; Rooth v. Quinn, 
7 Price, 193 ; Feigley v. Sponeberger, 
5 Watts & S. 564 ; Johnston v. Button, 
27 Ala. 245. It has, however, been ques- 
tioned whether, if a firm consist of more 
than two members, the expressed and 
known dissent of one partner to a con- 
tract about to be entered into in good 
faith by a majority of the partners in the 
name of the firm will operate to free the 
dissenting partner from liability thereon. 
Story on Part. § 123, and notes ; 3 Kent 
Com. 45. This question will be consid- 
ered when we come to treat of the power 
of a majority of the partners to bind the 
partnership, jjosf, § 147. In one case, 
indeed, it was said : "By the act of enter- 
ing into a copartnership, each of its mem- 
bers becomes clothed with full power to 
make any and every contract within the 
scope and limits of the copartnership busi- 
ness. All such contracts will therefore be 
absolutely binding upon the several mem- 
bers. Tins power is incident to the co- 
partnership relation, and must exist, in 
defiance of expostulations and oT)iections, 
while the relation endures." Wilkins v, 
Pearce, 5 Denio, 541, 544. But, though 
the judgment in this case was affirmed in 
the Court of Appeals, the dictum just 
quoted does not appear to have been ap- 
proved. On the other hand, the acts of 
the protesting partner subsequent to his 



80 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



authority on the part of his partner, to bind, seems to be a 
question of fact, (tv) 

On the whole, it may be said that the law-merchant, as it is 
incorporated into the common law of England and of this country, 
does not permit one to secure to himself all the advantages and 
gains of partnership, and guard himself against all its liabilities 
and losses ; and that his attempt to do so would be defeated by 
casting upon him those liabilities. But stipulations are often 
entered into which must be understood as giving up, on the part 
of all the partners, or of a part, some of the powers and advan- 
tages of partnership, and providing against a proportionate 
measure of liability ; and any stipulations of this character would 
undoubtedly take effect as far as they were known. 

Thus, it is quite common, in continental Europe, for mercantile 
firms, in their circulars or other advertisements, to designate one 
or more of the partners as alone having authority to put the 



expression of dissent were held to amount 
to a waiver of it, and to a ratification of 
the transactions to which he had originally 
objected, s. c. 2 N. Y. 469, 472. See 
opinion of Golden, Senator, in Smith ?'. 
Lasher, 5 Cow. 689, 710. In Willis v. 
Dyson, 1 Stark. 164, Lord EUenborough 
held, "that after notice by one partner 
not to supply any more goods on the part- 
nership account, it would be necessary for 
the party .sending goods after such notice 
to prove some act of adoption by the part- 
ner who gave the notice, or that he had 
derived some benefit from the goods." This 
qualification of the rule, that a partner 
may limit his liability by giving notice to 
that effect, though reiterated upon the 
authoT'ity of this case by some of the writ- 
ers on partnership (see 3 Kent Com. 8th 
ed. 49 ; Gow on Part. 52), seems open to 
considerable question, as matter of princi- 
ple. Nor does it appear to have the sup- 
port of any other judicial decision. On 
the contrary, in Galway v. Smithson, su- 
pra, Matthew, for whose acts Smithson, 
his partner, had given the plaintiff' notice 
he would not be responsible, had, after 
the notice, borrowed money of the plaintiff, 
and had applied it mostly to the payment 
of partnership debts. Nevertheless. Smith- 
son was held not liable on a note given in 
the partnershij) name for the sum so bor- 
rowed. So in Leavitt v. Peck, 3 Conn. 
124. In Monroe v. Conner, 15 Me. 178, 



Shepley, J., after an examination of the 
point, comes to the conclusion that "it is 
more in accordance with the general prin- 
ciples of law, and with good faith and fair 
dealing, to hold that a partner is not bound 
by a contract after he has given notice, to 
the party proposing to make it, that he 
■would not be bound by it." When notice 
is given to a party proposing to make a 
certain contract, that one member of a firm 
will not be bound by the action of the other 
members, if the party thus notified still 
persi.sts in his purpose, and completes the 
contract, he must be presumed to have 
made it solely on the credit of the non- 
dissenting partners. But we shall see 
later (§ 88), that where credit is given 
to one or more of the individual partners, 
the other partners are not liable on such 
contracts, even though they inure to the 
benefit of the partnership. 

(w) Leavitt v. Peck, 3 Conn. 124; 
Willis V. Dyson, 1 Stark. 164 ; Vice v. 
Fleming, 1 Y. & J. 227. See authorities 
cited above. And if a partner, in the 
presence of a party dealing with another 
partner who acts in the name of the firm, 
refuses to be bound by the transaction, yet 
his subsequent acts and declarations may 
amount to a waiver of his dissent, and to a 
ratification of the transaction from which 
he thus at first dissented. Pearce v. Wil- 
kins, 2 N. Y. 469. 



§ 85.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PERSONS. 81 

name of the firm to negotiable paper. If a firm should so adver- 
tise in this country, it would undoubtedly prevent any person 
who knew of it from holding the firm on the signature of any 
other member. But it should not affect one who did not know 
it; because he migiit fairly imply the authority of each partner 
from the partnership. Formerly, the phrases special and limited 
partnerships, which now have a statute meannig, were applied 
quite loosely to those which were less general than usual ; (:r) 
and it was always held that, where these limitations were known 
to a customer, he was affected by them ; ^ and further, that this 
specialty or limitation may be inferred from facts. Limitations 
upon the authority of one partner to represent his copartners 
may also be imposed by the nature and usages of particular 
trades. 

§ 85. Limitation by Trade Usage. Non-trading Partnership. — 
The fact that a partnership is engaged in a particular trade being 
known, is sufficient notice to third persons of the limitations 
which the nature and customs of that trade place upon the power 
of each partner ;2 and third parties dealing with a partner in 
matters outside the scope of its usual business, to charge his firm 
therein, must show him to have i)ossessed special authority so to 
act. Thus, it has been held, that persons who are engaged in 
w^orking a mine or a farm, in partnership, give no implied author- 
ity to one another to borrow money or to draw bills of exchange 
on joint account and credit, even in promotion of the joint busi- 
ness. Hence, if money be borrowed, or a bill be drawn, by one 
of several persons jointly interested in a farm or a mine, the 

(x) See Lansing v. Ten Eyck, 2 Johns, who contracts with a partner in a matter 

304 ; Miimford v. Nicoll, 20 Johns. (524, J'or wliich he alone is responsible, the other 

629; Bentley v. White, 3 B. Mon. 2d3; Key- partners are not liable. Thus, A. and B. 

nolds V. Cleaveland, 4 Cow. 282 ; Lnsign are partners, A. agreeing to furnish capital, 

V. Wands, 1 Johns. Cas. 171. In these last and B. labor ; and C. knowing these facts 

two cases the word "limited" is used only contracts with B. to perform in pail the 

in the head-note. Ensign v. Wand.s, 1 labor which B. was to furnish. ('. nuist 

Johns. Cas. 171 ; De Berkom v. Smith, look to B. for his conipen.sation. Pollock 

1 Esp. 29 ; Post v. Kimberly, 9 Johns. 489. v. Williams, 42 Miss. 88 ; Newman v. 

When, by the terms of a partnership, the Baker, 9 Johns. 207; Medberry v, Soper, 

liability of each partner is limited, and 17 Kas. 369. 
this limitation is known to a third person 

1 The rights of third persons against a partnership will be limited by the special 
provisions of the articles of copartnership known to such third persons. Smith v. 
Vanderburg, 46 111. 34 ; Knox v. Buffington, 50 la. 320. So where a guardian was 
member of a firm, but not authorized to contract firm debts, and he put into tlie busi- 
ness money of his ward, making a firm note to himself as guardian, it was held that no 
recovery could be had. Wintermute v. Torrent, 83 Mich. 555, 47 N. W. 358. 

2 Randall v. Meridith, 76 Tex. 669, 13 S. W. 576. 

6 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



lender or holder cannot hold the other partners upon it, without 
showing that they had in some way authorized the acting partner 
so to bind them, (y) ^ 



(//) Dickiusoa v. Valpy, 10 B. & C. 
128 ; Kiuibro i-. Bullitt, 22 How. 256 ; 
Ulery v. Giiirick, 57 Iil. 531 ; Gieeiislade 
V. Dower, 7 111. 635 ; Kicketts v. Bennett, 
4 C B. 686. See Shicknesse v. Broniilow, 
2 Cr. & J. 425 ; Hawtayiie v. Bourne, 7 
M. & W. 59o ; Tredwen v. Bourne, 6 M. 
& W. 461 ; Howkeii v. Bourned, 8 M. & 
\V. 703 ; Burniester v. Korris, 6 Exch. 
796. But where it was shown that it was 
the custom of planters generally to borrow 



Ind. 133 ; Garland v. Jacomh, L. K. 8 
Ex. 218. In Wisconsin, after a careful 
review of the authorities, it was held that 
one member of a uon-trading partnership 
— law firm, for instance — cannot bind 
his copartner by a bill or note, drawn, 
accepted, or indorsed by him, even for a 
debt of the firm, unless specially authorized 
by his copartner, or it be necessary to 
carry on the i)artnership, or it be shown to 
be usual in similar partnerships ; and the 



money when necessary for the j)urposes of burden of proof of authority, necessity, and 



their business, it was held, that one of a 
firm engaged in the business of planting 
might bind his copartners by borrowing 
money for their business, and giving a 
note therefor. Lea v. Guice, 13 S. & M. 
656. And in McGregor v. Cleaveland, 5 



usage is upon the party claiming under the 
note. Smith v. Sluan, 37 Wis. 285 ; 
Hunt V. Chapin, 6 Lans. 139 ; McCord v. 
Field, 27 U. C. C. P. 391 ; Prince v. 
Crawford, 50 Miss. 344. In like manner, 
a jiartner in the practice of physic is not 



Wend. 475, a promissory note given for bound by a note drawn by his copartner in 



the firm by one of two partners in the 
business of farming and coopering was 
held good, and binding upon both. " An 
attorney, qua attorney, is not a scrivener : 
it is part of his business to prepare convey- 
ances and negotiate mortgages, and see 
that the deeds are executed and the trans- 
action completed. A scrivener is a person 
who receives money to lay out upon secu- 



the name of the firm, for the purpose of 
raising money, Crosthwait v. Ross, 1 
Humph. 23 ; nor by any other of his 
copartner's contracts which are not con- 
nected with their business as physicians, 
Thompson v.. Howard, 2 Ind. 245. So if 
four are interested as partners in two shares 
of the stock of a company formed for dig- 
ging tunnels, the peculiar and limited 



rity, and to hold the money in his hands character of the partnership business pre- 

until an opportunity ofl'ers for laying it eludes any legal implication that one of 

out." Hence, where two are in partner- the partners can bind the others by issu- 

ship merely as attorneys, one member of ing commercial paper in the partnership 

the firm is not rendered liable as partner name. Gray v. Ward, 18 111. 32. See 

by his copartner's receiving money indefi- Cocke v. Branch Bank, 3 Ala. 175, respect- 

nitely for the purpose of being laid out on ing the linutations to the authority of one 

mortgage security. Harman v. Johnson, of a firm of tavern-keepers. In re Wor- 

2 E. & B. 61, 188. See Sims v. Brutton, cester Corn Exchange Company, 3 De G., 

1 E. & B. 446 ; Wilkinson v. Candlish, 19 M. & G. 180 ; and (.heeny v. Clark, 3 Vt. 

L. J. Rep. Exch. 166. So, if persons are 431, as to the liability of members of a 

in partnership as attorneys, there is no building association. See also Williams v. 

imi)lied authority in one of them to bind Thomas, 6 Esp. 18 ; Bentley v. White, 3 

the rest by pledging the name of the firm B. Mon. 263 ; Vance v. Campbell, 8 

for a loan of money, Breckenridge v. Hum])h. 524 ; Lanier v. McCabe, 2 Fla. 

32 ; Miller v. Hines, 15 Ga. 197 ; Benson 



Shrieve, 4 Dana, 375 ; Hedley v. Bain- 
bridge, 3 Q. B. 316 ; or by put- 
ting the name of the firm in any 
shape to negotiable paper, Levy v. Pyne, 
1 C. & M. 453. See Smith v. Cole- 
man, 7 Jur. 1053 ; Wells v. Turner, 16 

1 Whether an act is outside the scope of a certain business in which a partnership 
is engaged, is a question of fact, depending upon the known customs and usages of that 



V. M'Bee, 2 McMullan, 91 ; Goodman v. 
White, 25 Miss. 163 ; Cargill v. Corby, 15 
Miss. 425 ; Lansing v. Gaine, 2 Johns. 
300. In Andrews v. Lehott, 10 Barr, 47, 
Andrews & Harris had agreed to fomi a 



§ 86.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PERSONS. 83 

§ 86. Limitation by Nature of Transaction. — A limitation or 
exception niay grow out of the nature of the particular transac- 

statutory limited partnership, Harris being creditor of the special partnership could 
the special partner. With that view, they not discharge, the special partner from the 
had placed upon record, and otherwise general liability fixed on him by statute, 
published to the world, in accordance with The court said: "If the })laintifrs knew 
the ])rovisions of the statute, the terms of they held themselves out as a limited 
their connection. A subsequent breach of partncrshii), they also knew that, if the 
the statute made Harris a general partner, defendants failed to coni{)ly with the requi- 
in an action against both the partners uj)on sition of the act, they became general part- 
contracts made in the name of the copart- ners, and were liable as such. Tlie 
nersiiip. Harris alleged in defence that presumption is, that the contract was 
the plaintilF, at the time the contracts made in reference to the legal rights of the 
were made, knew he was a special partner, parties ; and this presumption can alone 
and gave credit to the firm and the general be rebutted by clear proof of an express 
partners, and did not rely on him. But it contract, waiving all the plaintiffs rights 
was held, that this knowledge by the under the statute." 

business. If these customs and usages authorize a partner to do such an act on behalf 
of the firm, he may bind the firm by the act. Alabama Fertilizer Co. v. Reynolds, 79 
Ala. 497 ; Pease v. Cole, 53 Conn. 53 ; Judge v. Braswell, 13 Bush, 67 ; Nat. State 
Capital Bank v. Noyes, 62 N. H. 35 ; Biggs v. Hubert, 14 S. C. 620. 

If the act is necessary for carrying on the business, it is, of course, within the scope 
of the business. Nat. Exchange Bank v. White, 30 F. R. 412 ; Deardorf v. Thacher, 
78 Mo. 128 ; Levi v. Latham, 15 Neb. 509, 19 N. W. 460. If the act is not within 
the apparent scope of the business, the firm is not bound except upon evidence of 
express or implied authority of all the partners, or ratification by them. Such 
authority or ratification, however, makes the firm liable. Pease v. Cole, 53 t'onn. 53 ; 
Judge V. Braswell, 13 Bush, 67 ; Holmes v. Kortlander, 64 iMich. 591, 31 N. W. 532 ; 
Conely v. Wood, 73 Mich. 203, 41 N. W. 259 ; Deardorf v. Thacher, 78 Mo. 128 ; 
Nat. State Capital Bank v. Noyes, 62 N. H. 35 ; Clarke v. \Vallace, 1 N. D. 404, 48 
N. W. 339. 

The burden is on the plaintitf to prove authority or ratification. Judge v. Braswell, 
13 Bush, 67; Van Dyke v. Seelye (Minn.) 52 X, "W. 215. 

The payment of a stranger's debt is not within the scope of a partnership business ; 
consequently a firm note given by a partner for the accommodation of a stranger is not 
valid in the hands of one with notice. Heffron v. Hanaford, 40 Mich. 305 ; Van Dyke 
I'. Seelye (Alinn.), 52 N. W. 215. 

So a promise by one partner in the name of the firm to pay the debt of a third party 
is not valid against the firm. Shaaber v. Bushong, 105 Pa. 514. 

So one partner cannot bind the firm by guaranteeing the note or other debt of a third 
party. Osborne v. Stone, 30 Minn. 25, 13 N. 'W. 922 ; Osborne v. Thompson, 35 Minn. 
229, 28 N. W. 260 ; Clarke v. Wallace, 1 N. D. 404, 48 N. W. 339 ; Fore v. Hittson, 
70 Tex. 517, 8 S. W. 292. This is true even in case of guaranty of the rent of an 
employee of the firm, Avery v. Rowell, 59 Wis. 82, 17 N. W. 875 ; or of a promise to 
pay the medical expenses of an employee. Woodruff v. Scaife, 83 Ala. 152, 3 So, 311. 
Where, however, a partnership bought out a manufacturing business, and one partner 
agreed with the workmen that if they would continue at work the firm would pay their 
arrears of wages, this was held to be within the scope of the firm's business, and to bind 
the firm. "Wills v. Cutler, 61 N. H. 405. 

As to acts within the scope of a partnership, a fundamental distinction exists between 
commercial or trading partnerships and non-trading partnerships ; arising out of the 
fact that in a non-trading partnership there is no general power in the partners to do 
such acts as are customary in carrying on business. 

Thus a partner in a non-trading partnership does not generally have power to bind 



84 THE LAW OF PARTNERSHIP. [CH, VI. 

tion. Thus, if a partner of a firm which deals only in merchandise 
eives the note of the firm for a horse, it would be a fair presump- 
tion that the party receiving it — if he knew the general busiiiess 

the firm by signing the firm name to commercial paper given for borrowed money. 
This rule has been held to apply in the following sorts of business : — 

Farming, Greenslade v. Dower, 7 B. & C. 635 ; Kimbro v. Bullitt, 22 How. 256. 

Practising law, Hedley v. Bainbridge, 3 Q. B. 316 ; Levy v. Pyne, Car. & M. 453 ; 
Friend v. Duryee, 17 Fla. Ill ; Breckinridge v. Shrieve, 4 Dana, 375 ; Rogers v. Priest, 
74 Wis. 538, 43 N. W. 510. 

Carrying on saw-mill, Dowliug v. Exchange Bank, 145 U. S. 512 (but see Kimbro 
V. Bullitt, 22 How. 256). 

Keeping tavern, Cocke v. Bank, 3 Ala. 175. 

INlanagiug a theatre. Pease v. Cole, 53 Conn. 53, 22 Atl. 681. 

Carrying ou mill, Lanier v. McCabe, 2 Fla. 32. 

Digging tunnels. Gray v. Ward, 18 111. 32. 

Printing, Bays v. Conner, 105 Ind. 415, 5 N. E. 18. 

"Working threshing-machine, Horn v. Newton City Bank, 32 Kas. 518, 4 Pac. 1022. 

Real estate, Lee v. First Nat. Bank, 45 Kas. 8, 25 Pac. 196 ; Deardorf v. Thacher, 
78 Mo. 128. 

Mining, Judge v. Braswell, 13 Bush, 67 ; Randall v. Merideth, 76 Tex. 669, 13 
S. W. 576. (Aliter of a commercial parnership for currying on a mine. Decker v. 
Howell, 42 Cal. 636.) 

Planting, Benton v. Roberts, 4 La. Ann. 216 ; Prince v. Crawford, 50 Miss. 344 ; 
Morgan v. Pierce, 59 Miss. 210. 

Keeping livery stable, Levi v. Latham, 15 Neb. 509, 19 N. W. 460. 

Sugar refining, Livingston v. Roosevelt, 4 Johns. 251. 

Practising medicine, Crosthwait v. Ross, 1 Humph. 23. 

Publishing, Pooley v. Whitmore, 10 Heisk. 629. 

On the other hand, the firm has been held liable on firm paper made by one partner, 
where the business was collecting. Van Brunt v. ilather, 48 la. 503 ; and soap-making, 
Deitz V. Regnier, 27 Kas. 94. 

So a partner in a non-trading firm cannot ordinarily borrow money so as to make 
the firm liable. Harris v. Baltimore, 73 Md. 22, 20 Atl. Ill (street improvement) ; 
Williams v. Gillies, 75 N. Y. 197 (purchase of land on speculation). 

Where the object of a non-trading partnership is not to sell, one partner cannot sell 
firm property so as to pass all the interest of the firm. Lowman v. Sheets, 124 Ind. 
416, 24 N. E. 351 (keeping mare for breeding purposes) ; Blaker v. Sands, 29 Kas. 551 
(improving breed of sheep). 

Where a partnership is formed for a certain purpose, one partner has no power to 
bind the firm by engaging in Inisiness of another sort. So a partner in a commercial 
firm cannot bind the firm by taking a promissory note for collection. Pickels v. 
McPherson, 59 Miss. 216. 

On the other hand, when a firm has become the owner of a chattel mortgage and has 
foreclosed, one partner may bind the firm by creating an agency to sell the mortgaged 
goods. Banner Tobacco Co. v. Jenison, 48 Mich. 459, 12 N. AV. 655. And where a 
firm was formed to build a building according to certain plans, one partner in contract- 
ing for extra work is actinic within the apparent scope of the firm business, and binds 
the firm. Hoftinan v. Toll (Ind. ), 28 N. E. 557. 

Where there are written articles, the question whether a certain line of business is 
contemplated by the articles, and therefore within the scope of the partnership, is for 
the court. Banner Tobacco Co. v. Jenison, 48 Mich. 459, 12 N. W. 655. 

Where a partner does an unauthorized act in such a way that the firm is not bound 
it is valid as against the acting partner, and (if a sale) passes his interest in the prop- 
erty. Lowman v. Sheets, 124 Ind. 416, 24 N. E. 351 ; Blaker v. Sands, 29 Kas. 551 ; 
Rogers v. Priest, 74 Wis. 538, 43 N. W. 510. 



§ 87. J WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 85 



of the firm — should have supposed that the partner had no 
authority to give such a note, (z) The rule itself, which gives to 
a partner his authority, limits it, in perhaps all the authorities 
which assert the rule, to contracts or acts within or helonging to 
the business of the firm. The reason of this is perfectly obvious; 
and it would follow that as partners may certainly limit their 
business as they please, by so doing they place an analogous lim- 
itation to the authority of the partners, in reference to any one 
knowing the limitation of their business. 

§ 87. General Rule a Safeguard against Fraud. — One reason why 
all the {jartncrs are bound by the acts of one, is, that great and 
inevitable frauds would spring from the want of this rule. Thus, 
it would always be easy for a firm doing the largest business to 
have one partner (entitled to a very small share) without means, 
and therefore without risk, who should sign all their paper and 
execute all their contracts ; the other partners taking all the 
profits and casting all the losses on him. But it would as cer- 
tainly be a fraud, if a customer, who knew that a partner with 
whom he dealt had no authority to act for his partners in a cer- 
tain way or on certain terms, should nevertheless make that very 
bargain with him, relying on the j-esponsibility of the other 



(;) Holmes v. Burton, 9 Vt. 252 ; 
Liviiig.ston v. Hoosevelt, 4 Johns. 251. 
In this last case A. & B. formed a copart- 
nership under the style of A. & Co., in 
the business of sugar-refining, and so 
advertised the public. B. afterwards, 
without the knowledge of A., bought a 
quantity of brandy, for which he gave his 
note, payable to the firm, and indorsed by 
him with the name of the firm. The 
plaintiff, the indorsee of said note, took 
both the newspapers in which the charac- 
ter of the business of A. & Co. was ad- 
vertised. The question in the case being 
whether the copartnership was liable on 
the above note, Kent, C. J., said; "All 
partnerships are more or less limited. 
There is no one that embraces, at the 
same time, every branch of business ; and 
when a person deals with one of the part- 
ners in a matter not within the scope of 
the partnership, the intendment of law- 
will be, that he deals with him on his 
private account, notwithstanding the part- 
ner may give the partnership name, unless 
there be some circumstances in the case 
to destroy that presumption. * If,' said 
Lord Eldon (8 Vesey, p. 544), ' under the 



circumstances, the person taking the pa- 
per can be considered as being ad%-ertised 
that it was not intended to be a partner- 
ship proceeding, the partnership is not 
bound.' Public notice of the object of 
a copartnership, the declared and habitual 
business carried on, the store, the count- 
ing-house, the sign, &o., are the usual 
and regular indicia by which the nature 
and extent of a partnership are to be 
ascertained. When the business of a 
jiartnership is thus defined and publicly 
declaied, and the company do not depart 
from that particular business, nor appear 
to the world in any other light than the 
one thus exhibited, one of the partners 
cannot make a valid partnership engage- 
ment on any other than a partnership 
account. There must be some authority, 
beyond the mere circumstance of partner- 
ship, to make such a contract binding." 

[A partnership for raising and selling 
agricultural seeds is not bound by the 
purchase by one partner of a number of 
roses and other flowers, since such a pur- 
chase is not within the apparent scope of 
the business. Sargent v. Henderson, 79 
Ga. 268, 5S. E. 122.] 



86 THE LAW OF PARTNERSHIP. [CH. VI. 

partners, (rt) A firm may undoubtedly permit one of the part- 
ners to act in his own name, but for the interest and benefit of 
the firm, and then any loss in such transaction is a loss of the 
firm. As where one partner deposited the funds of the firm in a 
bank in his own name, with the consent and for the convenience 
of the firm, and the funds were charged to him in the books of 
the firm, but only to indicate in whose hands they were, and the 
bank became insolvent, — it was held to be the loss of the firm, 
and not of the partner, (aa^ 

We have already seen that any stipulations between partners 
bind them, and there is nothing to prevent them from agreeing 
that one shall share all the profits, but that the others shall bear 
all the losses. This, however, will not prevent a creditor of 
the firm from suing all, nor from levying an execution on the 
property of the partner thus exempted, unless the creditor had 
knowledge of the agreement, and made his bargain with the firm 
so far in acceptance of and accordance with that agreement, that 
he must be taken not to have given any credit to the exempted 
partner. If that partner is made to pay any share of loss, by the 
general law of partnership, he can turn round upon his partners, 
under their agreement, and recover it from them. 

It is well established that if a partner, in direct violation of his 
stipulations as partner, or in fraud of the partnership, enters into 
any contract on their part with a third person, the partners are 
not discharged by his breach of contract, or by his fraud, unless 
the third person was participant or conusant of it. (^) ^ 

(a) To a similar effect is the language famil}', — it could not be supposed by any 

of Kent, C. J., in Livingston v. Roosevelt, one that the company would be holden. 

4 Johns. 278, 279. He says that where These would be plain cases of a fraud, 

the particular business of a firm is made practised upon the firm, of which the 

known in a usual and reasonable way to creditor would be chargeable with notice, 

the public, "the creditor is advertised When the public have the usual means of 

that he is not dealing on a partnership ac- knowledge given them, and no means 

count ; and for him to take a partnership have been suffered by the partnership to 

engagement, without the consent of the mislead them, every man is to be presumed 

firm, is, in judgment of law, a fraud upon to know the extent of the partnership 

the firm. Suppose, in the case of a gen- with whose member he deals." Dow v. 

eral commercial ])artnership, a debt was Sayward, 12 N. H. 275. See Bignold v. 

to be contracted by one partner upon the Waterhouse, 1 Moore & S. 259 ; Maltby 

purchase of new lands; or suppose, in the v. N. W. & R. Co., 16 Md. 422. 
case of a partnership between two attor- {aa) Campbell v. Stewart, 34 111. 151. 

ueys, in law business, a partnership note (b) See pod, ch. 7, " Of the Rights 

was to be given by one of them uyion the and Duties of Partners between Theni- 

purchase of groceries or furniture for his selves." And see Salland v. McRae, 16 

1 Where a partner, acting within the scope of his authority, borrows money in the 
name of the firm, a misuse of the money by the partner does not excuse the firm 



§ 87.] WHO ARK LIABLE AS PARTNERS AS TO THIRD PARTIES. 87 

We add, that the person so dealhig with a fraudulent partner, 
ill actual ignorance of the fraud, but in an ignorance which implies 
gross negligence on his part, should not be permitted to hold the 
lirm. This would be an inference from the principles of agency. 
This rule has been applied to the holder of negotiable paper, 
and should be applied to every one dealing with such partner, (c) 



La. Ann. 193 ; Stockwell v. Dillingliam, 
5U Me. 442 ; Mechaiii(!s' Bank v. Foster, 
44 Bail). 87 ; Gale v. Miller, 44 Barb. 420 ; 
Tillbrd v. Ramsey, 37 Mo. 563 ; Haywanl 
V. French, 12 Gray, 453 ; Sterling v. 
Jamlon, 48 Barb. 459 ; Blodgett v. Weed, 
119 Mass. 215 ; [Andrews v. Conger, 2o U. 
S. Supr. Ct. (L. Co. op. Ed.) 90 ; Nat. 
Exchange Bank v. White, 30 F. R. 412 ; 
Humes y. O'Bryan, 74 Ala. 64; Manville 
V. Parks, 7 Col. 128 ; Lynch v. Thonii)- 
son, 61 Miss. 354 ; Benninger v. Hess, 41 
Oh. St. 64.] See also Guild v. Welch, 119 
Mass. 257. A ])artner cannot, for a pri- 
vate consideration, discharge a debtor of 
the firm, by an agreement to pay the 
debtor's note to the firm. Lewis v. West- 
uer, 29 Mich. 14. If a partner pays his 
[)rivate debts by receipting a bill due from 
his creditor to the firm, the firm, or its 
assignee, may nevertheless recover the 
amount of their bill. Thomas v. Penn- 
rich, 28 Ohio St. 55. If the appropriation 
by one partner of partnership property to 
pay his private debt, be made and received 
in good faith and under such circumstances 
that the other i)artners and the creditors 
are not defrauded, the money so appropri- 
ated cannot be recovered back. Corwiu 
V. Suydam, 24 Ohio St. 210. 

(c) Lloyd V. Freshlicld, 2 C. & P. 325 ; 
New York Fire Insurance Co. v. Bennett, 
5 Conn. 574. In this last case, Hosmer, 
C. J., says : " It is now insisted, that the 
payee of a promissory note, although he 
has knowledge that the maker or indorser 
in the name of the firm is making pay- 



ment by this act of his own debt, or is 
becoming the surety of another jierson, 
without the concurrence ot his partner-, 
and that neither the partnership covenant 
nor the interest of the partnership sanc- 
tions the act, yet that he has a right to 
subject the partnership. The principle, 
in direct hostility with justice and conve- 
nience, is endeavored to be sustained by 
tiie unwarranted supposition, that the 
payee, not having knowledge that special 
authority was not given the partner, may 
fold his arms, and reap a benefit from his 
supineness. Common sense and commou 
integrity require that he .should make in- 
(juiry, in such cases, and actually know 
that authority was given. He is bound, 
on legal and fair principles, to sustain the 
affirmative. He knows that the partner- 
ship is for mercantile operations. He 
knows that the partner, signing or indors- 
ing a note in the name of the firm, from 
the partnership contract, had no implied 
authority. He knows that the act can alone 
be authorized by the delegation of express 
power. And he knows that on the most 
common and best-established principles, in 
promotion of justice and prevention of 
fraud, the person claiming the obligation of 
contract against a partnership is bound to 
prove it." See Warren i\ French, 6 Allen, 
317; Kimball v. Walker, 30 111. 482; 
Duncan v. Lewis, 1 Duvall, 183 ; Sims v. 
Smith, 12 Rich. L. 685. Whether the 
plaintiff suing on such a note had such 
notice as ought to put him on inquiry, is 
a question for the jury. Waite v. Thnyer, 



from liability. National Bank of Commerce v. Meader, 40 Minn. 32.5, 41 N. W. 
1043; Kleinhaus v. Generous, 25 Oh. St. 667; Gilchrist i;. Brande, 58 Wis. 184, 15 
fN. W. 818. 

The declaration of the partner at the time of making a contract that it is for the 
firm is enough to charge the firm, if the contract is within the apparent i^cope nf the 
business. Clark v. Taylor, 68 Ala. 453 ; Dodds v. Rogers, 68 Ind. 110 ; Smith v. 
Collins, 115 Mass. 388 ; Benninger v. Hess, 41 Oh. St. 64 ; Gavin v. Walker, 14 Lea, 
643. 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



§ 88. Credit Given to one Partner Only. — He who gives credit 
to one partner alone, cannot call on the rest. This is true, how- 
ever the credit be given. As, if the creditor sold him goods ; {d) 
or sold to another goods on his guaranty ; or received him as 
surety in any way, or loaned him money, {e) If there is no 
evidence to show to whom credit was given, the fact that nionev 



118 Mass. 473. The burden of proof tluit 
a note given iii tiie tirm name by one of 
tlie partners is not on partnership account, 
is on the partnership. Currier v. lame- 
rou, 31 Mich. 373. 

{li) As where goods for the use of a 
stage-coach are supplied to one of several 
partneis in a stage-coach line by one 
knowing that the agreement between them 
is that each shall run and stock a particu- 
lar portion of the road at his own expense. 
Hiard v. Bigg, Mann. N. P. Index, Part- 
ners, A. («). 5; Barton v. Hanson, 2 Camp. 
97 ; 2 Taunt. 49. So where L. & C, by 
articles, entered into partnership for the 
manufacture of hemp ; L. to find the 
stock, and C. to furnish the machinery 
and operatives. The plaintiff's slave was 
employed, by C. alone, in the business of 
the firm, and the present action was as- 
sumpsit against the partners for the value 
of his services. The jilaintitf, as the only 
evidence of the lialnlity of the firm, ex- 
hibited tlie articles of copartnership, pro- 
viding for the arrangement above stated. 
It was held that, in the absence of evi- 
dence to the contrary, the plaintiH must 
be presumed cognizant of the duty of C. 
to furnish hands, and to have contracted 
solely npon the credit of C; to whom 
alone, therefore, he could look for pay- 
ment. Lafon V. Chinn, 6 B. Mon. 305. 
See Pinckney v. Keyler, 4 E. D. Smith, 
469. In Young v. Hunter, 4 Taunt. 583, 
Gibbs, ,T., said : " I am b\' no means of 
opinion that there may not be a case where 
two houses shall be interested in goods 
from the beginning of the purchase, yet 
not be both liable to the vendor : as if the 
parties agree amongst themselves that one 
house shall purchase the goods and let the 
other into an interest in them, that other 
being unknown to the vendor ; in such a 
case the vendor coitld not recover against 
him, although such other person would 
have the benefit of the goods." See fur- 



ther Saville v. Robertson, 4 T. K. 725; 
Gibson V. Lupton, 9 Bing. 297 ; Ex parte 
Hairis, 1 Madd. 583 ; Hokroft v. Hog- 
gins, 2 C. B. 488 ; Sylvester v. Smith, 
9 Mass. 121 ; Holmes v. Burton, 9 Vt. 
252; Ketchum v. Durkee, 1 Hoff. Ch. 
528 ; Watt v. Kirby, 15 111. 200 ; Meyer 
V. Larkin, 3 Cal. 403. In Joluistcm v. 
Warden, 3 Watts, 101, the court instructed 
the jury : "That if A. contract with B. to 
deliver articles at a sjiecified period, and if 
in the intermediate time B. and C. enter 
into a partnership, as upon such a con- 
tract, it is to be presumed that payment is 
to accompany delivery ; if credit is given 
at the time of delivery, it must be pre- 
sumed to be done upon the credit of the 
partners, and this whether the existence 
of the partnership was known to the plain- 
tiff who gave the credit or not. If the 
existence of the partnership was known at 
the tin)e no doubt could be raised ; but if 
a credit be given whei'e there is a secret 
|)artner, as the credit is supposed to be 
given as well to him as to those associated 
with him, npon the giound that he is en- 
titled to the jirofits, so he in equity should 
be responsible for the loss in the present 
case." 

(c) Fx park Hunter, 1 Atk. 223 ; 
Parkin v. Carruthers, 3 Esp. 248, per 
Le Blanc, J. ; Lloyd v. Freshfield, 2 C. & 
P. 325 ; Bevan v. Lewis, 1 Sim. 376 ; 
I\Iurray v. Somerville, 2 Gamp. 99 ; Le 
Roy V. Johnson, 2 Peters, 186 ; Mifflin v. 
Smith, 17 S. & R. 169; Willis v. Hill, 

2 Dev. & Bat. 231 ; Foley v. Kobards, 

3 Led. 177 ; Bird v. Lanius, 4 Wis. 615 ; 
Clay V. Cottrell, 18 Pa. 408 ; Wiggins v. 
Hammond, 1 Mo. 121 ; Siegel v. Chidsey, 
28 Mo. 279 ; Miller v. Morrice, 6 Hill, 
114 ; Holmes v. Burton. 9 Vt. 252 ; Evans 
V. Biddleman, 3 Cal. 435 ; Logan v. Bond, 
13 Ga. 192 ; Foster v. Hall, 4 Humj.h. 
346 ; Jaques v. Marquand, 6 Cow. 497 ; 
Whitaker v. Brown, 16 Wend. 505. 



§88.] 



WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 



89 



l)orro\ved by a partner comes to the use of a firm raises a pre- 
sianptiou that the loan was made by liini as partner, and, if not 
rebutted, will make the firm liable for the repayment. (/) If the 
creditor sold goods or loaned money to every one of the partners 
severally, on their several credit, he could not recover of them 
jointly, nor hold them mutually responsible, although the money 
or the goods were immediately used by the borrowers or buyers 
to make up the stock of the firm, or provide for its debts or 
business. (^) ^ 



(/) Jaques V. Maniuaiul, 6 Cow. 497; 
Rothwell I'. Huinphreys, 1 Esp. 406 ; 
Church V. Sparrow, 5 Wend. 223 ; Whit- 
aker v. Brown, 16 Wend. 505. If for 
money borrowed a partner gives his own 
bill, or note, or other simple contract se- 
curity, and suit is brouglit directly upon 
such individual security, " it cannot be 
allowed to supply by inten(hnent the names 
of others, in order to chaige them" ([)er 
Lord Ellenborough, C. J., in Emly v. Lye, 
15 East, 7) ; Skitfkin v. Walker, 2 Camp. 
308 ; Ex parte Brown, 1 Atk. 225, cited ; 
Ex, parte Bolitho, Buck, 103 ; though upon 
the connnon money counts the partnership 
may be charged, if the obligation of the 
borrowing partner was meant to be taken, 
not in lieu of, but simply in connection 
with the partnership liability. Ibid. ; 
Denton v. Rodie, 3 Camp. 493 ; Tucker v. 
Peaslee, 36 N. H. 167. If, however, the 
obligation of one partner be thus taken, 
not as a collateral, but as the sole security 
for the money loaned, the credit must be 
deemed to have been given solely to that 
partner, and the lender cannot recover for 
money had and received by the partner- 
ship, notwithstanding the loan went to its 



use. As where the transaction between a 
banker and one partner is in fact a dis- 
count by the former of the latter's paper ; 
notwithstanding the application of the 
funds so raised to the uses of the firm, 
and the understanding by the banker that 
they would be so applied, the discounter 
does not become a creditor of the partner- 
ship, but simply of the contracting part- 
ner ; for "the purchase or discount of a 
note is a contract wholly unconnected with 
the objects, uses, or application of the 
money paid." Per Baldwin, J., in Win- 
ship V. Bank of the United States, 5 Peters, 
567 ; Emly v. Lye, 15 East, 7 ; Denton v. 
Eodie, 3 Camp. 493 ; Graeff v. Hitchman, 

5 Watts, 454 ; Bond v. Aitkin, 6 Watts 

6 8. 165; Foster i-. Hall, 4 Humph. 346 ; 
Union Bank v. Eaton, 5 Hiimjih. 499 ; 
Green v. Tanner, 8 Met. 411 ; Ostrom v. 
Jacobs, 9 Met. 454 ; Thorn v. Smith, 21 
Wend. 365 ; Beebe v. Rogers, 3 Greene, 
(la.) 319; Mead v. Tomlinson, 1 Day, 148. 
See also Donnally v. Ryan, 41 Pa. 306 ; 
Folk V. Wilson, 21 Md. 538. 

{g) Saville v. Robertson, 4 T. R. 725. 
See Hoare v. Dawes, Dougl. 371 ; Coope 
V. Eyre, 1 H. Bl. 37 ; Smith v. Craven, 



1 The partnership is not liable for money loaned to the partner indivi<lually, though 
it was used for the purposes of the firm. Clark v. Taylor, 68 Ala. 453 ; Guice v. Thorn- 
ton, 76 Ala. 466 ; Logan v. Bond, 13 Ga. 192 : Lill v. Egan, 89 111. 609 ; Nat. Bank of 
Commerce v. Meader, 40 Minn. 325, 41 N. W. 1043 ; Farmers' Bank v. Bayliss, 41 Mo. 
274 ; Nat. Bank of Salem v. Thomas, 47 N. Y. 15 ; Peterson v. Roach, 32 Oh. St. 374 ; 
Ah Lep V. Gong Choy, 13 Ore. 205, 9 Pac. 483 ; Union Bank v. Day, 12 Heisk. 413. 

Accordingly, where one member of a commercial partnership took a note to collect 
(an act outside the scope of the partnershi]) business) the firm was not liable, though the 
proceeds were ajiplied to the payment of firm debts. The transaction of the owner of 
the note was with the individual partner. Pickels v. McPherson, 59 Miss. 216. 

In the same way, when goods are sold to a partner individually the firm is not liable 
for the price, although the goods are used by the firm. Adams v. Eatherly Hardware 



90 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



It must, however, be remembered, that this credit, to exonerate 
the other partners, must be given knowingly and vohintarily. For, 
if one sold goods actually to a firm, but through the agency of a 
partner wliom he did not know to be a partner, and accordingly 
charged the same to that partner alone, the firm would still be 
bound. This rule applies equally to all simple contracts, whether 
oral or written. (A) 



1 Cr. & J. 500 ; Bevan v. Louis, 1 Sim. 
376 ; Wall's Adin. v. Fife, 37 Pa. 394. So 
wliere two parties agree to buy separately 
certain amounts of a specitied kind of ))ro]>- 
erty, and then to form a partnership, each 
contributing his purchase to tlie firm, 
neither partner is liable for the purchase 
of the other, as for a partnership debt. 
McGar v. Drake, Sup. Ct. Tenn. 5 Rei)tr., 
387. [Valentine v. Hickle, 39 Oh. St. 19.] 
(h) It was held, in one case, in the 
Common Pleas in England, that there 
was a difference between a written and 
an oral contract, so far as regards the lia- 
bility of a dormant partner to be sued 
thereon, and that, in an action upon the 
former, it was not allowable to add as par- 
ties other persons than those whose names 
were signed to the agreement. Beckham 
V. Knight, 4 Bing. N. C. 243. The facts 
of the case are sufficiently set forth in the 
opinions of the judges. Tindal, C. J. : 
"The action is brought on an express 
contract between Kniglit & Surgey of the 
one part, and the plaintiff of the other 
part. It appears by the plea that three 
persons were carrying on business under 
the firm of Knight & Surgey, and that the 
defendant Drake was a dornjant partner. 
The agreement is in writing inter partes ; 
and it contains no intimation that Knight 
& Surgey were carrying on business as 
members of a more extensive firm. I 
know of no authority for introducing the 
name of a dormant partner into such a 
contract. In implied contracts, where the 
benefit is equal, and the liability not lim- 
ited, a dormant partner may be included ; 
but there is no authority which extends 



the principle to express contracts." Bosan- 
quet, J.: "The plaintiff" is precluded, by 
the form of the contract, from saying that 
any other person entered into it besides 
himself and Knight & Surgey." See also 
Robinson v. Rudkins, Exch. 38 Eng. L. & 
Eq. 372. But Beckham v. Knight, supra, 
was afterwards overruled in the Exchequer. 
In Beckham v. Drake, 9 M. & W. 79, upon 
the same state of facts. Lord Abinger, 
C. B., said : "I am of the same opinion 
that I was then, that the doctrine stated 
by the Court of Common Pleas that, when 
a contract is in writing between jiarties 
.signing their names to it, it cannot be used 
against other parties than those who signed 
their names to it, — cannot be supported 
either on principle or authority. That 
position, indeed, is contradicted by the 
whole series of authorities bearing on the 
subject. There is no question that a con- 
tract in writing by an agent, signed by 
himself, will bind his principal, when the 
other contracting party discovers the prin- 
cipal, although the contract was made 
without his knowing who the principal 
is ; as, for instance, in the case of a bill 
of lading signed by the master, where the 
action is brought against the owners. It 
is also the case of every charter-paity, 
which is signed by the owner, where the 
owner is rendered liable by the act of the 
master, because the master is his agent. 
So it is in a vast variety of other cases 
which frequently occur, all establishing 
the principle, that the parties really con- 
tracting are the parties to sue in a court 
of justice, although the contract be in the 
name of another. ... A contract under 



Co., 78 Ga. 485, 3 S. E. 430 ; Gates v. Watson, 54 Mo. 585 ; Harvey v. Childs, 28 Oh. 
St. 319 ; Holmes v. Burton, 9 Vt. 252. 

In such cases the partner who thus becomes the debtor is of course entitled to a 
credit to that amount on the books of the partnership. Thornton v. Lambeth, 103 
N. C. 86, 9 S. E. 432. 



§ 89.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 91 

§ 89. Partner Accepted as Creditor, rirm whether Discharged. — 
The firm would not be held, if the creditor of the firm had 
acce[)ted the individual security of the partner instead of the debt 
of the firm ; provided the new individual indebtedness be of a 
hitrher nature than the firm debt, or payable sooner, or attended 
with some other advantage, which might be regarded as a considera- 
tion, (i) And a judgment obtained against one partner, whether 



seal can bind none but those who sign and 
seal it. A contract not under seal is ojjen 
to all the cointnon-law requirements and 
incidents of a contract, whether in writ- 
ing or not. Suppose these two partners, 
Knight & Surgey, had made a contract 
verbally, not having said a word about 
Drake ; no question could then have arisen 
that Drake might nevertheless be liable 
upon it. How, then, does the fact of 
its being in writing, and of their having 
put their names to it, alter the case ? The 
])arties are just in the same situation, and 
there can be no difference. There is noth- 
ing affirmative on the face of the contract 
to show an intention to exclude everybody 
but themselves. It is open to the defend- 
ant Drake to show such an intention, but, 
unless it be shown, the objection does not 
arise." See Cooke v. Seeley, 2 E.xch. 746. 
See, to the same effect, Snead v. Baringer, 

I Stew. 134 ; Reynolds v. Cleaveland, 4 
Cow. 282 ; Mead v. Tomlinson, 1 Day, 
148. The question as to whom the credit 
was given is one for the jury. Webster v. 
Stearns, 44 X. H. 498. 

(i) As where the bond or other specialty 
of one partner is taken for the simple con- 
tract debt of the partnership, see Williams 
1-. Hodgson, 2 H. & J. 474 ; Tom v. Good- 
rich, 2 Johns. 214 ; Clement v. Brush, 3 
Johns. Cas. 180 ; Waugh v. Carriger, 1 
Yerg. 31 ; Ward v. Hotter, 2 Rob. (Va. ) 
536 ; Moule v. HoUins, 11 G. & J. 11 ; 
Jacobs V. McBee, 2 McMuUan, 348 ; Bell 
(;. Banks, 3 M. & G. 258 ; Ward v. John- 
son, 13 Mass. 150 ; Patterson v. Brewster, 
4 Edw. Ch. 352; McNaughten v. Partridge, 

II Ohio, 223. In United States v. Astley, 
3 Wash. C. C. 512, Washington, J., said : 
" The reason upon which the doctrine is 
founded is obvious. The bond is clearly 
obligatory upon the parties who executed 
it, and is therefore an extinguishment of 
the simple contract debt as to him. A 



joint action, therefore, to recover on the 
original debt could not be .supported 
against both partners. Neither could an 
action be maintained against the partner 
who did not execute the bond, because he 
has a right to insist that his partner 
should be joined with him in the action ; 
of which right the creditor and the other 
partner cannot, without his consent, de- 
prive him. It is precisely like the case of 
a release, which, if given to one joint 
debtor, dischaiges both. A bond given 
for a simple contract debt operates as a 
release of that debt, and creates another 
of a superior dignity, which can be enforced 
only against the person who executed the 
bond." 

The above reasoning seems conclusive, 
and appears to place the doctrine in ques- 
tion upon a foundation entirely independ- 
ent of the intentions of the parties. A 
different principle, however, is intimated 
in some of the authorities. Thus, in United 
States V. Lyman, 1 JIason, 505, 506, Story, 
J., says : "The doctrine, that in general 
a higher security taken from the debtor 
himself extinguishes the original contract, 
proceeds upon a presumption of law that 
it is taken in satisfaction of the original 
debt ; for, if it appear otherwise upon the 
face of the security, it will not operate as 
an extinguishment. ... It is, therefore, 
after all, a mere question of interest ; and 
the law, in the absence of all other evi- 
dence of the interest, construes the higher 
security of the debtor himself as an extin- 
guishment, because it gives a higher remedy. 
I admit, also, that a higher security by a 
third person, if taken at the time of mak- 
ing the original contract or afterwards, in 
satisfaction of the debt, operates as an 
extinguishment. But theie is this dif- 
ference between the case of a higher secu- 
rity of the debtor himself and of a third 
person, that, in the latter case, the law 



92 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



the others be ostensible or secret, discharges tlie firm from liability 
to be sued for the same debt. (?) 



does not presume the security taken in 
sutisfiiction, unless it is averred and proved 
to be the agreement of the parties so to 
consider it. Whether the receiving of a 
higher security from one partner for a part- 
nership debt be an extinguishment, unless 
expressly taken in satisfaction of such 
del it, may peihai)s admit of some doubt, 
notwithstanding the language of some 
highly respectable authorities." So in 
Bond V. Aitkin, 6 W. & S. 165, the lan- 
guage of the court is : " Where the bond 
of one of the partners is taken for an 
antecedent partnership debt, it may be 
considered either as payment and extin- 
guishment of such debt, or only a collateral 
security, according to the nature of the 
transaction and the circumstances attend- 
ing it. Wallace v. Fairman (4 Watts, 
378). But where there is no antecedent 
debt, but the bond of one partner is taken 
at the time money is loaned to the part- 
nership, and as the consideration for loan- 
ing the money, it can hardly be treated as 
a collateral security. It must be con- 
sidered as all one transaction, and the 
boud as the only security contemplated ; 
unless, perhaps, there were strong and 
positive evidence to show an express agree- 
ment to the contrary by all parties." See 
Collier v. Leech, 29 Pa. 404. And where 
two partners agieed to borrow money for 
partnership purposes, and, upon its being 
loaned to them, one of them gave his sole 
bond for the amount, with the other as a 
witness, it was held, upon the insolvency 
of the firm, that the obligee might be 
admitted as creditor under a joint commis- 
sion. Ex parte Brown, 1 Atk. 225, cited. 
See Horton v. Child, 4 Dev. 460 ; Ross v. 
Lawhorn, Dudley, 360 ; Doniphan v. Gill, 
1 B. Mon. 199. See Despatch Line of 
Packets v. Bellamy Mfg. Co., 12 N. H. 
234. But the ground upon which the 
rule is placed in the passage above quoted 
from Washington, J., certainly seems to 
be more consonant with the weight of the 
authorities. In Clement v. Brush, 3 Johns. 
Cas. 180, the understanding of the parties 
that the partnership was not to he released 
was evinced ou the face of the si)ecialty, 



which was taken by the creditor for the 
firm debt, by its being signeil by the part- 
ner with the name of the firm. But the 
court said : " One partner cannot bind his 
copartner by seal. The defendant Brush, 
who executed it, is alone bound by the 
specialty ; and, it being a debt of a higher 
nature, it extinguishes the simple contract 
or jiartnership debt." So in Williams v. 
Hodgson, 2 H. & J. 474, and in McNaugh- 
ten V. Partridge, U Ohio, 223. 

(/) King V. Hoare, 13 j\I. & W. 494 ; 
Maule, J., in Bell v. Banks, 3 M. & G. 
267 ; Lechmere v. Fletcher, 1 Cr. & M. 
635 ; Ti-afton v. United States, 3 Story, 
648, 651 ; United States v. Cushman, 2 
Sumn. 437, 440 ; Pearce v. Kearney, 5 
Hill, 82 ; Suydam v. Barber, 6 Duer, 34, 
38 ; McMaster v. Vernon, 3 Duer, 249 ; 
Peters v. Sandford, 1 Denio, 224. See, 
however. Collier r. Leech, 29 Pa. 404. 
But this is not upon the ground that the 
creditor who thus obtains judgment against 
one partner alone thereliy agrees, or is on 
that account presumed to agree, to release 
the other partners. If that were so, the 
presumption might be rebutted ; as, for 
instance, in the case of a secret partner, 
and the firm held, notwithstanding a prior 
judgment against one partner upon the 
same cause of action. But the real reason 
in case of a judgment, as well as of a bond, 
is, that the creditor, by taking the higher 
form of a judgment security against one 
partner for a debt due jointly from all the 
l)artners, thereby changes the relations 
and liabilities of the parties under the 
original contract, and cannot, therefore, 
afterwards hold them upon it, whatever 
may be his intention. Perhaps these two 
views of the effect of a creditor's taking 
the separate higher security of one partner 
for a partnership" debt arise from a partner- 
ship's being regarded in two different 
lights. If a partnership be treated as a 
person, entirely distinct from the indivi- 
dual partners, then a contract between a 
creditor of the firm and one of the partners, 
by which the former receives from the 
latter, for a firm debt, his sole obligation 
of a higher nature, is res inter alios acta. 



§ 89.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 93 



If a creditor of a firm has lost his remedy against the partner- 
ship by taking from one partner a security of a higher nature, it 
may not be quite determined whether equity will give relief ; or, 
if it can, under what circumstances and in what manner this 
relief will be afforded. Perhaps the question, in each case, would 
be determined by the intention of the parties ; for, if they pur- 
posed and desired to extinguish the joint debt and substitute an 
individual debt, neither equity nor law would keep the joint debt 
alive. It is held, in several cases, that it is no ground for the 
interposition of equity, that a creditor of a partnership has, in 
ignorance of a secret partner, extinguished his remedy at law 
against him by taking, for the debt of the firm, either a judgment 
against the ostensible partner, or his separate bond or specialty, (w) 
If, however, a partner attempts to bind the partnership by a spe- 
cialty, but, failing for want of authority, binds himself only, 
and thereby discharges the partnership at law altogether, — equity 
will give relief against the other partner, if it be shown that the 
contract was really on the partnership account, and was intended 
by all parties to bind the firm, (h) 



and may be said not to discharge the firm, 
unless clearlj' proved to have been intended 
by all the parties to have that effect. If, 
on the other hand, a partnership be con- 
sidered simply as so many persons, who 
contract and are bound jointly, but in no 
other way, a person who has made a con- 
tract with the partnership, but who after- 
wards in some way absolves one of the 
partners from liability to be sued upon it 
together with the other partners, has 
thereby precluded himself from suing on 
the original contract, because by his own 
act he has deprived himself of the proper 
parties. 

We have already seen that a judgment 
against an ostensible partner, upon a joint 
claim, though unsatisfied, and obtained 
during the concealment of the secret part- 
ner, is a bar to a subsequent suit upon the 
same cause of action brouglit against both 
the ostensible and the secret partners. 
Upon the same principles, the bond of an 
ostensible partner, taken for a partnership 
debt, extinguishes the claim as against a 
secret partner, who may be afterwards dis- 
covered. See a full discussion of this 
point in Ward v. Motter, 2 Rob. (Va.) 
536 ; also, Anderson v. Levan, 1 W. & S. 
334 ; Spear v. Gillet, 1 Dev. Eq. 466. 



(m) Penny v. Martin, 4 Johns. Ch. 
566 ; Willings v. Consequa, 1 Pet. C. C. 
301 ; Williams v. Hodgson, 2 H. & J. 
474; Smith v. Black, 9 S. & R. 142; 
How V. Kane, 2 Chand. 222 ; Ledam v. 
Williams, 4 McLean, 51. See Spear v. 
Gillet, 1 Dev. Eq. 466. 

(n) Wharton v. W^oodburn, 4 Dev. & 
Bat. 507 ; Blanchard v. Parteur, 2 Hayw. 
393 ; James v. Bostwick, Wright, 142 ; 
Gunter v. Williams, 40 Ala. 561. See 
McKee v. Bank of Mt. Pleasant, 7 Ohio, 
175. In McNaughten v. Partridge, 11 
Ohio, 223, one partner executed a bond for 
a joint debt in the name of his firm, all 
the parties to this instrument and all the 
partners suppo.sing, at the time, that the 
partnership was bound by such execution. 
It was held, that, on the ground of the 
mistake of the parties as to the legal 
effect of the execution of the bond, equity 
might relieve against the firm. But the 
obligee, having, after the discovery of the 
mistake, pursued his remedy against 
the executing partner individually, on the 
aforesaid bond, it was held, that this was 
a ratification of the arrangement by which 
the partnership had been discharged, and 
that equity could not now relieve. The 
doctrine in Virginia is thus set forth in 



94 



THE LAW ON PARTNERSHIP. 



[CH. VI. 



It has been argued that if there be no new consideration for 
the new promise, as all the partners were equally liable in solido 
for the firm debt, the new promise of any one of them to pay it, 
should, by itself alone, be no consideration for releasing the 
rest, (o) It is, however, the better doctrine, that it is for the jury to 
decide whether the creditor intended to accept the sole liability of 
a partner in discharge of the joint debt of the firm ; for if there 
was such an intention, and no fraud, the new promise would be 
supported on the ground that the sole promise must have been 
more beneficial than the joint promise, or it would not have been 
accepted instead of the joint promise. (^) ^ 



Nailnay v. Harvey, 9 Gratt. 466, by 
Dauiel, J.: "It may, however, I think, 
be stated as the well-settled doctrine of 
this court, that whilst the mere acceptance 
of such higher security by a creditor from 
one member of a firm, for a partnership 
debt due by simple contract, destroys the 
right of the creditor to proceed at law 
against the member who was not a party 
in giviug such higher security, yet that a 
court of equity will look at the original 
character of the debt, and will not with- 
hold relief against the member not unit- 
ing in the higher security, merely because 
of the merger and destruction of the legal 
remedy against him ; but will treat that 
simple contract as a debt still subsisting 
iji foro coiiscientice, unless it is shown that 
the creditor intended, by accepting such 
higher security, to abandon all recourse 
upon his original demand. In other 
words, that in a court of law the higher 
security operates per se a destruction of 
the simple contract ; but that, in a court 
of equity, whether such is to be the effect 
of the transaction, is a question to be 
decided by proof of the intention of the 
parties. If by taking such higher secur- 
ity it was not the design of the parties 
that the social debt should be wholly ex- 
tinguished, equity will still hold all the 
partners bound. If, on the other hand, 
the higher security is given and accepted 
as a substitute for the original simple 
contract of the firm, and with the inten- 
tion to absolve the firm, all remedy upon 
the latter is gone, in equity as well as at 



law." See Sale v. Dishman, 3 Leigh, 548; 
Gait V. Calland, 7 Leigh, 594 ; Weaver i;. 
Tapscott, 9 Leigh, 424 ; Ward v. Motter, 
2 Rob. (Va.) 552 ; Moser i-. Libenguth, 1 
Rawle, 255 ; Hart v. \Yithers, 1 Barr, 
285, 290. 

(o) Attwood V. Banks, 2 Beav. 192 ; 
Lodge V. Dicas, 3 B. & Aid. 611 ; Living- 
ston V. Radeliff, 6 Barb. 201 ; David v. 
EUice, 5 B. & C. 196 ; Cole i-. Sackett, 1 
Hill, 516 ; Waydell v. Luer, 5 Hill, 448 ; 
Wildes V. Fessenden, 4 Met. 12 , Frentress 
V. Marble, 2 Greene (la.), 553. See Pierce 
V. Cameron, 7 Rich. 114 ; Stone v. Cham- 
berlin, 20 Ga. 259. If a creditor of the 
firm, after dissolution, knowing that one 
or more of the partners have agreed to 
assume and pay the firm debts, accepts 
the note of those agreeing to pay, in pa}'- 
Dient of his debt, it is a discharge of the 
other partners. Millerd i>. Thorn, 56 N. 
Y. 402. So where each partner gives his 
note for his share of a debt, it is a dis- 
charge of the partnership debt. Maxwell 
V. Day, 45 Ind. 509. 

(/>) Tlius it was sai<l by Dennian, C. 
J., in Thompson v. Percival, 5 B. & Ad. 
925 : " Many cases may be conceived in 
which the sole liability of one of two 
debtors may be more beneficial than the 
joint liability of two, either in respect of 
the solvency of the parties or the con- 
venience of the remedy, as in cases of 
bankruptcy, or survivorship, or in various 
other wa3's ; and whether it was actually 
more beneficial in each particular case 
cannot be made the subject of inquiry. 



1 It is now everywhere admitted that where a partnership creditor accepts the note 
of a partner in satisfaction of the claim against the firm, the firm debt is gone. The 



§ 89. j WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 95 

From the language used in some cases, it might be inferred that 
the taking of a new security of the same class from one partner 
for a partnership debt is of itself sufficient to extinguish the 
partnership debt, and to discharge the firm. But the {principle 
now ai)plied, both in England and generally in this country, is, 
that the acceptance by a creditor of the firm of one partner's 
separate security of the same class with the joint security (as of a 
partner's promissory note for the firm debt) does not discharge 
the other partners unless an express or implied agreement that 
such shall be the effect of the transaction is clearly made out.(^)^ 



Kirwan v. Kirwan, 2 Cr. & M. 617, 623 ; said: "Is it to be endured, tluit, when 
Hart V. Alexander, 2 M. & \V. 484 ; partners have given their acceptance, and 
Waydell v. Ltier, 3 Denio, 410 ; Living- when perhaps one of two partners lias 
ston V. Radclitf, 6 IJarb. 301 ; Van Eps v. made provision for the bill, the holder 
Dillage, 6 Barb. 244 ; also, Hariis v. sliall take the sole bill of the other part- 
Lindsay, 4 Wash. 0. C. 271 ; Marshall, ner, and yet hold both liable? I am of 
C. J., in Shelby v. Mandeville, 6 ('ranch, opinion, that, when the holder chooses to 
264 ; Ex parte Liddiard, 4 Deacon & do so, he discharges the other partner." 
Ch. 603 ; Oakeley v. Pasheller, 10 Bligh, Acceptance by a firm creditor of a note 
548; Anderson v. Henshaw, 2 Day, 272 ; made by the surviving partner, who had 
Thomas v. Shillibeer, 1 M. & W. 124. The been authorized to take this in li(|uidatioii, 
principle of these latter cases seems also does not discharge the estate of the de- 
to have been asserted in Evans v. Drum- ceased partners. Titus v. Todd, 25 N. J. 
mond, 4 Esp. 92, and in Reed v. White, 5 Eq. 458. 
Esp. 122. In the former, Lord Kenyon (q) Ex parte Hodgkinson, 19 Ves. 295 ; 



partner is really a third party, the true debtor being the firm ; and it is well settled 
that a debt is discharged by accepting in payment of it the note of a third person. 
In addition to the authorities collected in note (p) see the following cases. Thompson 
V. Percival, 5 B. & Ad. 925 ; In re Parker, 19 N. B. R. 340 ; Myatts v. Bell, 41 Ala. 
222 ; Bonnell v. Chamberlin, 26 Conn. 487 ; Maxwell v. Day, 45 Ind. 509 ; Drake v. 
Hill, 53 la. 37 ; Crooker v. Crooker, 52 Me. 267 ; Washburn v. Pond, 2 All. 474 ; 
Ludington v. Bell. 77 N. Y. 138 ; Bank v. Green, 40 Oh. St. 431 ; Robinson v. Hurl- 
burt, 34 Vt. 115 ; Dages v. Lee, 20 W. Va. 584 ; Gates v. Hughes, 44 Wis. 332. 

If, however, the note of a partner is taken in payment of an existing firm debt, it 
will be presumed (in the absence of proof of an agreement to discharge) to be mere 
conditional payment, and if the new note is not paid at maturity the liability of the 
firm remains. 

Ill re Clap, at 2 Low. 226 ; Leabo v. Goode, 67 Mo. 126 ; Titus v. Todd, 25 X. J. Eq. 
458 ; Claflin v. Ostrom, 54 N. Y. 581 ; Leach v. Church, 15 Oh. St. 169 ; Spaulding 
V. Ludlow Mills, 36 Vt. 150 ; Miller v. Miller, 8 W. Va. 542. 

This is true even if the n^w note was given by an ostensible sole trader who in 
fact had a dormant partner ; on discovering that fact, the creditor may sue on the 
original claim, the new note remaining unpaid. Robinson v. Wilkinson, 3 Price, 
508; Parker v. Canfield, 37 Conn. 250; Schemerhorn v. Loines, 7 Johns. 311; Hill v. 
Vooi-hies, 22 Pa. 68 ; Nichols v. Cheairs, 4 Sneed, 229. 

1 If at the time a debt arises against the firm the note of a partner is taken, not to 
make him the debtor, but as collateral security or conditional payment, the firm is 
bound. Bottomley v. Nuttall, 5 C. B. N. s. 122; Smith v. Collins, 115 Mass. 388 ; 
Sage V. Sherman, 2 X. Y. 417 ; Bowers v. Still, 49 Pa. 65 ; Schollenberger v. Seldon- 



96 THE LAW OF PARTNERSHIP. [CH. VI. 

§ 90. Use of Firm Property for Private Purposes. — Instances of 
partners using the name or credit of the firm for their personal 
advantage, and without authority, are constantly occurring ; and, 
as we have seen, when this is known to the person dealing with 
them, the firm are not held. Some difficulty often arises as to 
the proof of such knowledge on the part of the creditor. There is 
a rule, however, which rests on strong authority, and is in itself 
reasonable, just, and convenient, which would settle most of these 
cases, or at least reduce them to mere questions of fact. It is, 
that whenever a party receives from any partner, in payment for 
a debt due from that partner only, whether the debt be created 
at the time or before existing, or by way of settlement of or 
security for a debt, the indebtedness or obligation of the firm in 
any form, the presumption of the law is, that the partner gives 
this and the creditor receives it in fraud of the partnership, and 
has consequently no demand upon them, (r) And upon the 

Harris v. Farwell, 15 Beav. 31 ; Winter itor where the partnership is dissolved by 

V. Inues, 4 Myl. & Cr. 101 ; Davis v. De- the retirement of one or more of its mem- 

sauque, 5 Whart. 530 ; Smith v. Rogers, bers. See § 324 et se.q. for a more detailed 

17 Johns. 340 ; Parker f. Cousins, 2 Gratt. examination of the cases. 
372 ; Mason v. Wickersham, 4 W. & S. (r) Hope r. Gust, cited in Shirreff v. 

100; Yarnell v. Anderson, 14 Mo. 619; Wilks, 1 East, 48; Ridley i). Taylor, 13 

Potter V. McCoy, 26 Pa. 458 ; Hill v. East, 175 ; Green v. Drakin, 2 Stark. 347; 

Voorhies, 22 Pa. ^8 ; Nichols v. Cheairs, Ex parte Goulding, 2 Glyn & J. 118 ; 

4 Sueed, 229. And even in those States, Heath v. Sansom, 2 B. & Ad. 291 ; Ex 
where, as in Maine, Massachussetts, and parte Thorpe, 3 Mont. & Ayr. 716 ; Wintle 
Vermont, the taking of a negotiable note v. Crovvther, 1 Cromp. & J. 316 ; Snaith 
or bill is regarded as jwima facie evidence v. Bnrridge, 4 Taunt. 684 ; Ex parte 
of payment of the debt, it may be believed Agace, 2 Cox, 312; Davenport ■u. Run- 
that the acceptance by a partnership lett, 3 N. H. 386 ; Greeley v. Wyeth, 10 
creditor of such separate security would N. H. 15 ; Williams v. Gilchrist, 11 N. 
not discharge the firm, unless it were H. 535 ; Livingston v. Ha.stie, 2 Caines, 
clearly shown that such was the intention 246 ; Lansing v. Ten Eyck, 2 Johns. 300 ; 
of the parties. Barker v. Blake, 11 Mass. Livingstone. Roosevelt, 4 Johns. 251; Dob 
20, 21. See also Melledge v. B. Iron Co., v. Halsey, 16 Johns. 34 ; Foot v. Sabin, 

5 Cush. 170; Fowler v. Ludwig, 34 Me. 19 Johns. 154; Laverty ■?;. Burr, 1 Wend. 
455 ; Tracy v. Pearl, 20 Vt. 162 ; Heald 529 ; Whitaker v. Brown, 11 Wend. 75 ; 
V. Warren, 22 Vt. 410. The .security of Gansevoort v. Williams, 14 Wend. 133 ; 
one or more of the partners for a firm Wilson v. Williams, 14 Wend. 146 ; 
debt is more frequently taken by a cred- Chazournes ?;. Edwards, 3 Pick. 5; Rogers i-. 

ridge, 49 Pa. 83 ; Maffet v. Leuckel, 93 Pa. 468 ; Barcroft v. Snodgrass, 1 Cold. 430 ; 
Hoeflinger v. Wells, 47 Wis. 628, 3 N. W. 589. 

According to the better view in these cases, the firm is not discharged even if the 
creditor has pursued his remedy against the partner to judgment, or has proved 
against the partner in bankruptcy ; the claim against the partner being merely 
cumulative. Bottomley v. Nuttall, 5 C. B. N. s. 122 ; Claflin v. O^trom, 54 N. Y. 
581 ; First Nat. Bank v. Morgan, 73 N. Y. 593. But see In re Herrick, 13 N. 
B. R. 312. 



§ 90.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 97 

same principle, if one partner releases a debt due to his firm, in 
consideration of a release to him of a debt due by him solely, the 
presumption will be that the transaction was fraudulent, (s) ^ 



Bitchelor, 12 Pot. 221 ; Baud v. Cochran, 
4 S. & It. 397 ; Cotton v. Evans, 1 Dev. 
& B. Va[. 284 ; Wead i;. Richardson, 2 
Dev. & B. 535 ; Pierce v. Pass, 1 Porter, 
232; Mauldin v. Branch Bank, 2 Ala. 
511 ; Hagar v. Mounts, 3 Blackf. 57, 261 ; 
Hickman v. Reineking, 6 Blackf. 388 ; 
Lanier v. M'Cabe, 2 Fla. 32 ; Clay v. Cot- 
trell, 18 Pa. 408 ; King v. Faber, 22 Pa. 
21 ; Darling v. March, 22 Me. 184 ; El- 
liott V. Dudley, 19 Barb. 326 ; Miller v. 
Hines, 15 Ga. 197. See Leveson v. Lane, 
13 C. B. N. s. 278 ; Williams v. Brim- 
hal!, 13 Gray, 462; Casey v. Carver, 41 
111. 228 ; Rutledge v. S^iuires, 23 la. 53. 
The purchaser of goods from a firm 
cannot plead, in payment or set-otf, a debt 
due him from one of the firm. Wise v. 
Copley, 36 Ga. 508. Nor can a creditor 
of a partner, by an attachment and sale 
of firm jiroperty, on execution, for his 
private debt, acijuire title as against the 
creditors of the firm. Miner v. Pierce, 
38 Vt. 610. A sale by a partner of ])art 
of the firm property, the proceeds to be 
aj)plied to the private account of the part- 
ner, is fraudulent a.s against the other 
partners, and gives the purchaser no title 
as against them. Williams v. Barrett, 10 
Kas. 455 ; Stegall v. Coney, 49 Miss. 761. 
If a partner fraudulently approfiriate the 
funds of a firm to the purchase of real 
estate, or to the payment of life-insurance 
premiums on a policy for the benefit of 
his wife, a court of equity will follow the 
funds and their proceeds, and appropriate 



them to the use of the firm. Shaler r. 
Trowbriilge, 28 N. J. Ec^. (Stewart) 595. 
One who takes, in payment of the in- 
dividual note of A., for his private debt, 
notes payable to A., but belonging to 
the firm of which he was a member, has 
a good title, if he was ignorant of the 
fact of partnership. Kellogg v. Faucher, 
23 Wis. 21. The banker of a firm who 
knowingly transfers funds of the firm to 
the private account of one of the firm, 
for the purpose of speculation, is liable 
to the other partners for the funds so 
transferred. Billings v. Meigs, 53 Barb. 
272. And, generally, a partner cannot 
use partnership funils or credits to pay 
his private debt.s, or promote his private 
interests. McXair v. Piatt, 46 111. 211; 
Broailus v. Evans, 63 N. C. 633 ; Down- 
ing V. Linville, 3 Bush, 472 ; Wise v. 
Copley, 36 Ga. 508. 

(s) Evernghim v. Ensworth, 7 Wend. 
326; Gram v. Cadwell, 5 Cow. 459; Far- 
rarv. Hutchinson, 9 A. & E. 641; Greeley 
V. Wyeth, 10 N. H. 15. If a firm is sued 
upon a note given in the partnership 
name, partly for a partnership debt and 
partly for the separate debt of one or more 
of the partners, it seems that the firm is 
liable so far as the note is founded upon 
a partnership consideration. Wilson v. 
Lewis, 2 Man. & G. 197 ; Barker v. 
Burgess, 3 ilet. 273. See Barber v. Back- 
house, 1 Peake, 61 ; AVintle v. Crowther, 
1 Cromp. & J. 316; Ex parte Kirby, 
Buck, 511. 



1 A partner has no authority to dispose of partnership property in payment of an 
individual debt ; and a creditor of the partner taking such property has no right to 
hold it against the partnership, whether he claims absolute title, or holds the property 
by way of mortgage or pledge. Snaith v. Burridge, 4 Taunt. 684 ; Rogers v. Batchelor, 
12 Pet. 221 ; Kelley v. Greenleaf, 3 Story, 93 ; iloline AVagon Co. v. Rummell. 12 
F. R. 658 ; Clafliu v. Bennett, 51 F. R. 693 ; Halstead v. Shepard, 23 Ala. 558 ; Xall 
V. Mclntyre, 31 Ala. 532 ; Cannon v. Liudsey, 85 Ala. 198, 3 So. 676 ; Nichol v. 
Stewart, 36 Ark. 612; Brewster v. Mott, 5 111. 378 ; Deeter v. Sellers, 102 Ind. 458, 
1 N. E. 854 ; Johnson v. Crichton, 56 Md. 108 ; Kingsbury v. Tharp, 61 Mich. 216, 
28 N. W. 74 ; Hinds v. Backus, 45 Minn. 170, 47 N. W. 655 ; Buck v. Mosley, 24 
Miss. 170 ; Hoff v. Rogers, 67 Miss. 208, 7 So. 358 ; Hilliker v. Francisco, 65^ Mo. 
598 ; Forney v. Adams, 74 Mo. 138 ; Dob v Halsey, 16 Johns. 34 ; Gcery v. Cockroft, 
33 N. Y. Super. 146 ; Hartness v. Wallace, 106 X. C. 427, 11 S. E. 259 ; Tanner v. 



98 THE LAW OP PARTNERSHIP. [CH. VI. 

§ 91. Good if authorized. — The presumption of fraud in these 
cases is never absolute. It may be rebutted by proof of the 

Hall, 1 Barr, 417; Hartley v. White, 94 Pa. 31 ; McNair v. Wilcox, 121 Pa. 437, 15 
Atl. 575 ; Goode v. McCartney, 10 Tex. 193. See Jones v. Yates, 9 B. & C. 532 ; 
l-eucht V. Evans, 52 Ark. 217 ; Daniel v. Daniel, 9 B. Mon. 195 ; Bourne v. Woold- 
riJge, 10 B. Mon. 492 ; t'adwallailcr v. Krocsen, 22 Md. 20U. 

Tiiis is true, even if he was ignorant of the fact that it was partnership jiroperty. 
Rogers v. Batchelor, 12 Pet. 221 ; Janney v. Springer, 78 la. 617, 43 N. \V. 461 ; 
Minor V. Gaw, 11 Sni. & M. 322; Buck v. Mosley, 24 Miss. 170; Aukley v. Staehlin, 
56 Mo. 558; Caldwell v. Scott, 54 N. H, 414; Binns v. Waddill, 32 Gratt. 588 
(semble) ; Liberty Savings Bank v. Campbell, 75 Va. 534. 

But see Locke 1). Lewis, 124 Mass. 1. If, however, the partner has been so intrusted 
with the property by his copartners as to appear to be sole owner, a diHerent (question 
is presented. See post, § 99. 

If all tlie partners assent to the transfer, the individual creditor of the partner gets 
a valid title. McGliees v. Mclutchen, 82 Ga. 788, 9 S. E. 785 ; Veal v. Keely Co., 
86 Ga. 130, 12 S. E. 297 ; Fargo «. Ames, 45 la. 491 ; Rhodes v. McKean, 55 la. 547, 
8 N. W. 359 ; In re Stewart, 62 la. 614, 17 N. W. 897 ; Sc.hnndlaiip v. Currie, 55 
Miss. 597 ; Sexton v. Anderson, 95 Mo. 373, 8 S. W. 564 ; Pepper v. Peck (R. I.), 20 
Atl. 16 ; Carver Gin & Macli. Co. v. Bannon, 85 Tenn. 712, 4 S. W. 831; Hage v. 
Campbell, 78 Wis. 572, 47 N. W. 179, 

And it the firm has in this way assumed an individual debt, one jiartner may give a 
tirni-note in payment of it. Randall v. Hunter, 66 Cal. 512. 

The burden is on the individual creditor to show assent of all the partners. Johnson 
V. McCIary, 131 Ind. 105, 30 N. E. 888 ; Mechanics' k Traders' Ins. Co. v. Richard- 
son, 33 La. Ann. 1308 ; Mutual Nat. Bank v. Richardson, 33 La. Ann. 1312 ; Davis v. 
Smith, 27 Minn. 390, 7 N. W. 731 ; Farwell v. St. Paul Trust Co., 45 Minn. 495, 48 
N. W. 326. 

And mere silence on the part of the other partners is not enough to prove assent. 
Johnson v. McClary, 131 Ind. 105, 30 N. E. 888 ; nor dt.es assent without full knowl- 
edge of the facts, amount to ratification, American Exchange Nat. Bank v. Georgia 
Const. & Inv. Co., 87 Ga. 651, 13 S. E. 505. Nor will a representation by the partner 
of the consent of his copartners cure the defect. Allen v. Cary, 33 La. Ann. 1455 ; 
Union Nat. Bank v. Underbill, 102 N. Y. 336, 7 N. E. 293. 

So where a partner releases a debt due to the firm on consideration of the transfer 
of property or other advantage to the partner individually, the release does not bind 
the firm. Lemiette v. Starr, 66 Mich. 539, 33 N. W. 832 ; Beatson v. Hariis, 60 N. H. 
83 ; Clift V. Moses, 112 N. Y. 426, 20 N. E. 392. 

And a partner cannot bind the firm by a consent to set off a debt due from him to a 
stranger against a debt owed by the stranger to the firm. Cowen v. Eartheily Hard- 
ware Co., (Ala.) 11 So. 195. Thomas v. Stetson, 62 la. 537, 17 N. W. 751 ; Chase 
V. Buhl Iron Works, 55 Mich. 139, 20 N. W. 827 ; see Atkin v. Berry, 1 Lea, 91. 

Therefore where both the firm and an individual partner owe the same creditor, a 
firm check cannot with consent of the partner be applied to the debt of the latter. 
Cornells v. Stanhope, 14 R. I. 97. 

And where one partner used firm assets to pay off a mortgage on his wife's land, it 
was held that the firm could charge the land with the amount of the mortgage. 
Brecher v. Fox, 1 F. R. 273. 

Upon the same principle, one partner cannot subject the partnership assets to the 
individual debt of the other partner to him. Evans v. Bryan, 95 N. C. 174. 

So where a partner, being an individual debtor, gives firm jiaper in payment of his 
debt, the creditor, or one with notice, cannot enforce payment against the partnership. 
Guice V. Thornton, 76 Ala. 466 ; American Exchange Nat. Bank v. Georgia Const. & 
Inv. Co., 87 Ga. 651, 13 S. E. 505 ; Mechanics' & Traders' Ins. Co. v. Richardson, 33 



91.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 99 

authority given by the other partners, or of their knowledge and 
consent, or their ratification ; and these, or either of them, may 
be express, or be inferred from their acts, or usage, or any cir- 
cumstances which reasonably imply them. (0 The presumption 
seems to be held much more strongly in this country than in 
England. There, indeed, the courts would seem to hold, that, if 
the name of the partnership be used by a partner even for his 
private debt, the partnei's will be held, unless they can show covin 
or fraud on the part of the holder; and the mere fact that it was 
the private debt of one partner to him will not amount to prirnd 
facie proof of this, {u) In a recent English case, in a suit on a 

(t) Franklaiid v. M'Gusty, 1 Knapp, 111. 374 ; Wise v. Copley, 36 Ga. 508. Rut 

Pr. C. 274 ; Ex -parte Boiibonus, 8 Ves. proof of knowledge that the iiidel)tedness 

540 ; Ex parte Thorpe, 3 Mont. & A. 716 ; or obligation of the partnership had been 

Gnn.sevoort v. Williams, 14 Wend. 133 ; applied by one partner to pay his own 

Wilson V. Williams, 14 Wend. 146 ; Cot- debt is not proof of consent to or satisfac- 

ton V. Evans, 1 Dev. & B. Eq. 295 ; Noble tion of such misapplication by the other 

V. jrClintock, 2 W. & S. 152 ; Pierce v. yiartners, so as to rebut the presumption 

Pass, 1 Port. 232 ; Brewster y. Mott, 5 111. of fraud in the creditor. Ex parte Agace, 

378; Jones v. Booth, 10 Vt. 268; Miller 2 Cox, 312; Elliott v. Dudley, 19 Barb. 

V. Hines, 15 Ga. 197; Darling v. March, 326. 

22 Me. 184. See Corbin v. McChesney, (u) Compare Ridley v. Taylor, 13 East, 

26 111. 231; Warren v. Dickson, 30 IlL 175; Frankland w. M'Gusty, 1 Knapp. Pr. 

363 ; Sternburgr. Callaman, 14 Iowa, 251, C. 274; Ex parte Agace, 2 Cox, 312; 

adopted and confirmed in Cadwallader v. Ex parte Bonbonus, 8 Ves. 540; Ex parte 

Blair, 18 Iowa, 420 ; Carver v. Dows, 40 Thorpe, 3 Mont. & A. 716 ; Musgrave v. 

La. Ann. 1308 ; Blodgett v. Sleeper, 67 Me. 499 ; Daniels v. Hammond, 154 Mass. 
165, 28 N. E. 12 ; Freeman v. Ellison, 37 Mich. 459 ; Howell v. Sewing Machine Co., 
12 Neb. 177, 10 X. W. 700 ; Union Nat. Bank v. Underbill, 102 N. Y. 336, 7 N. E. 
293; Graham v. Taggart, (Pa.) 11 Atl. 652. 

This is the case where the note of a new firm is given in renewal of a note of the old 
firm it succeeded, by one who was partner in both firms. Tyree v. Lyon, 67 Ala. 1. 
And where a partner indorsed his individual note with the firm name, and discounted 
it for his individual purposes. Newman v. Richardson, 9 F. R. 865 ; Nat. Bank of 
Connnerce v. Law, 127 Mass. 72. See Atlas Nat. Bank v. Savery, 127 Mass. 75. 

But a holder of a firm note for value and without notice could of course recover. 
Redlon v. Churchill, 73 Me. 146 ; Nichols v. Sober, 38 Mich. 678. 

So where one partner borrowed money to put into the firm as his cajiital, and gave a 
firm note for it, the lender cannot hold the firm on the note if he had notice of the facts 
at the time of taking the note. Coller v. Porter, 88 Mich. 549, 50 N. W. 658 ; 
McNanghton's Appeal, 101 Pa. 550. See Goodbar v. Gary, 16 F. R. 316. 

As a partner cannot pay his own individual debt with the firm assets, so he cannot 
thus pay the debt of his partner without the consent of all partners, including the 
debtor. Brewster v. Reel, 74 la. 506, 38 N. W. 381. 

A partner cannot give away the firm property to a volunteer, Daniel v. Daniel, 9 
B. Mon. 195. And for this reason he cannot make a valid surrender of a firm lease, 
unless in an exigency of the business, when the other partner is not accessible. Berg- 
land V. Frawley, 72 Wis. 559, 40 N. W. 372. So one who receives a gift of a firm note 
from a partner cannot sue the firm on it. Lobdell v. Slawson, 90 Mich. 201, 51 
N. W. 349. 



100 



THE LAW OF PAETNERSHIP. 



[CH. III. 



bill of exchange accepted by a partner in the name of the firm, 
which bill included with the debt of the firm a private debt of the 
partner, the court directed a verdict for only the amount that 
was due from the firm, {uv) We shall, in a future chapter, speak 
of this question more fully in regard to negotiable paper.^ 

If a partner makes a fraudulent use of the name or property of 
his firm, it should be clearly and immediately repudiated by them 
as soon as it comes to their knowledge ; and any long delay may 
work a ratification, (uuu) 

§ 92. Beginning of Liability. — It is Sometimes important, in 
reference to liability for debt, as in other respects, to determine 
when a partnership begins. For example, if a man orders goods 
sent to another, and they are so sent and charged to the first 
party, and the seller discovers that the orderer and receiver were 
partners in the transaction, both are liable. But if the goods were 
to be supplied to the receiver by tlie orderer, and manufactured 
on certain terms by the party receiving them, and the new prod- 



Drake, 5 Q. B. 185 ; with Davenport v. 
Runlett, 3 N. H. 386 ; Lansing v. Gaine, 
2 Johns. 305; Dob v. Halsey, 16 Johns. 
34 ; Gansevoort v. Williams, 14 Wend. 
133 ; Cliazournes v. Edwards, 3 Pick. 5 ; 
Rogers V. Batchelor, 12 Pet. 221 ; Cot- 
ton V. Evans, 1 Dev. & B. Eq. 284 ; 
Pierce v. Pass, 1 Port. 282. In Dob v. 
Halsey, supra, Spencer, J., said: "The 
only difference between the decision of this 
court and that of the King's Bench con- 
sists in this : We re(juire the separate cred- 
itor, who has obtained the partnership 
paper for the private debt of one of the 
partners, to show the assent of the whole 
firm to be bound. The rule of the King's 
Bench throws the burden of avoiding such 
security on the firm, by requiring them to 
prove that the act was covinous on the 
part of the partner for whose private debt 
the paper of the firm was given, by show- 
ing that it was done without the knowl- 
edge, and against the consent, of the other 
partners, and that the fact was known to 
the separate creditor when he took the 
paper of the firm." In Rogers v. Batch- 
elor, 12 Pet. 221, the question was raised 
whether it made any difference that at the 
time of the transaction the separate cred- 
itor had no knowledge that there was a 
misappropriation of the partnership funds. 



Judge Story said: "It is true that the 
precise point now before us does not ap- 
pear to have received any direct adjudica- 
tion ; for in all the cases above mentioned 
there was a known application of the 
funds or securities of tlie partnership to 
the payment of the separate debt. But 
we think that the true principle to be 
extracted from the authorities is, that one 
partner cannot apply the partnership funds 
or securities to the discharge of his own 
private debt without their consent ; and 
that without their consent their title to 
the property is not divested in favor of 
such separate creditor, whether he knew 
it to be partnership property or not. In 
short, his right depends, not upon his 
knowledge that it was partnership prop- 
erty, but upon the fact whether the other 
partners had assented to such disposition 
of it or not." Brewster v. Mott, 5 111. 
378. See the language of Spencer, J., in 
Dob V. Halsey, 16 Johns. 39. It was dis- 
tinctly adjudged in Achley v. Staclilin, 56 
Mo. 558, that the fact that a creditor had 
no knowledge was immaterial. [See ante, 
§ 90, note.l 

{uv) Ellston V. Deacon, L. R. 2 C. P. 20. 

(liuu) Marine Co. of Chicago v. Carver, 
41 111. 66 ; Casey v. Carver, 41 111. 225. 



1 Post, § 133 c< seq. 



§ 92.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 101 

nets when manufactured (and not before) were to be the joint 
property of the two as partners, then the receiver of the goods 
would not be liable, {v) 

The general principle which answers the question when a part- 
nership begins, fur tlic purp(jse and with the effect of casting upon 
the members of the firm the liability of partners, must of course 
be that the liability of persons on contracts not made by them- 
selves, and as partners, begins at the moment when they begin to 
have a joint interest in the contracts as partners. For if a person 
purchases goods or borrows money upon his own credit, and it is 
aftei-wards discovered that the goods or the money have been 
apj)lied to the use of a partnership of which he is a member, the 
firm will be liable for the price of the goods or the amount of the 
loan, if, from the nature and circumstances of the transaction, the 
firm may be regarded as the real purchaser or borrower, which 
has acted through its authorized agent ; otherwise, only the party 
to whom credit was actually given can be held. Suppose there is 
no partnership in contemplation at the time goods are sold or 
money is loaned. In such case, though the money or the goods 
subsequently go to the use of a copartnership, of which the visible 
contracting party is a member, there can be no pretence for hold- 
ing the firm liable, since, at the time of the formation of the 
contract, it had no existence even in intention, (w) 

(v) Gardiner v. ChiMs, 8 C. .fe P. 345 ; of a joint adventure, and one of them with 

Broune v. (Ubbins, 5 Bro. P. C. 491 (Dub- the view pledges his credit for his allotted 

lin ed.), 3 Bro. P. C. 127. contribution to the joint capital, he only 

(w) Such was the case of Young v. can be made liaV)le upon the contract, un- 

Huuter, 4 Taunt. 582. Hunter & Ray- less, at the time of making it, the partner- 

ney had purchased goods of the plaintiffs ship was in existence and capable of being 

and other persons, which they intended to a contracting party. And hence, if by the 

ship for tlie Baltic ; and the defendants, parties' agreement the beginning of the 

Hotf ham & Co., who were not otherwise partnership appear clearly dependent upon 

jtartners of Hunter & Co., were afterwards some act or event subsequent to the making 

allowed to join in the adventure, and to of the contract in (juestion, the possibility 

have a fifth share upon the goods being of tlie firm's 'neing liable thereon is at once 

put on board. The plaintiffs knew noth- excluded. This proposition is illustrated 

ing of Hoff ham & Co., but sold the goods by the case of Saville i'. Robertson, 4 T. R. 

to Hunter & Co. only. It was held that 720. In that case Loi-d Kenyon said : 

Hoff ham & Co. were not liable to pay for " The facts of the case are shortl}' these : 

the goods. Heath, J. : " The proposition several persons who had no general part- 

of the plaintiffs, that, if it be shown that nei'ship, nor any connection with each 

at any one period of the transaction there other in trade, formed an adventure to the 

was a [lartnership subsisting, it was there- East Indies. The outfit of the vessel was 

fore to be inferred that there had been a a joint concern of all the partners ; and 

partnership in the original purchase is that delivers the case from one considera- 

whoUy unfounded." tion, namely, the parcel of co]iper for 

On the other hand, if parties have sheathing the ship, which is admitted to 

agreed to be partners for the prosecutioji be a partnership concern. But beyond 



102 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



§ 93. Partner by holding out. — We have already seen that one 
may be liable as a partner who is not so in fact, if he suffers him- 



that I see no partnership between the par- 
ties till all the parcels of the cargo were 
(ieiivered on board ; and that made it a 
combined adventure between all the par- 
ties. I cannot, therefore, see how it can 
be said that these goods, which were sold 
to Pearce only, and on his sole credit and 
account, were sold and delivered on the 
partnership account. Afterwards, indeed, 
these defendants were to gain or lose by 
the joint cargo : when the other goods 
were brought in, the partnership arose ; 
but each was to bring in his own particu- 
lar stock. But in this case I think that 
the question stops short of att'ecting the 
defendants, and I cannot see how the plain- 
tiff can have a right to call on the defend- 
ants, as partners, for the value of these 
goods, on a supposed contract, when the 
real contract between the buyer and seller 
was consummated before the joint risk 
began." The case of Post v. Kimberh% 
9 Johns. 470, is somewhat analogous in 
its facts, and exemplifies the same piinci- 
ple. See Ward v. Thompson, 1 Newb, 
Adm. 95, where, however, the question 
arose between the partners : Spalding v. 
Hedges, 2 Barr, 240, 243 ; Dunham v. 
Rogers, 1 Barr, 2.'55. On the other hand, 
Gouthwaite v. Duckworth, 12 East, 421, is 
a case in which, from the character of the 
agreement between the parties, the part- 
nership was tleemed to be in no way 
dependent for its beginning upon any 
commingling of the several partners' con- 
tributions, nor upon any other appropria- 
tion thereof to the joint fund ; but to have 
been in existence at the time of and for the 
purpose of the purchase of such contribu- 
tions. Lord EUenborough, C. J., there 
said : " It comes to the question, whether, 
contemjiorary with the purchase of the 
goods, there did not exist a joint interest 
between these defendants. The goods were 
to be purchased, as Duckworth states in 
his examination, for tlie adventure; that 
was the agreement. Then what was this 
adventure ? Did it not commence with 
the purchase of these goods for the pur- 
pose agreed upon, in the loss and profits 
of which the defendants were to share ? 
The case of Saville v. Robertson does in- 



deed approach very near to this ; but the 
distinction between the cases is, that there 
each party brought his separate parcel of 
goods, which were afterwanls to be mixed 
in the conmion adventure on board the 
ship, and till that admixture the partner- 
ship in the goods did not arise. But here 
the goods in question were purchased, in 
pursuance of the agreement for the adven- 
ture, of which it had been before settled 
that Duckwoith was to have a moiety. 
. . . If all agree to share in goods to be 
purchased, ami in consequence of that 
agreement one of them go into the market 
and make the puichase, it is the same, for 
this jJUiT^'^'"' *^^ if ^^^ the names had been 
announced to the seller, and therefore all 
are liable for the value of them." So in 
Everitt v. Chapman, 6 Conn. 347. There 
A., B., & C. were in ])artnership in the 
business of tanning hides, under an agree- 
ment by which A. was to furnish hides for 
one-half of the stock, and was to receive 
and make market for one-half of the 
leather, and B. k C. were to furnish the 
other half of the stock, and to make mar- 
ket for the other half of the leather ; each 
of the partners to purchase on his own 
separate credit. B. bought hides of the 
plaintiff, wOnch were charged to him indi- 
vidually. But, afterwards discovering the 
partnei-ship, the ])laintiff brought his ac- 
tion against A., B., & C. It was held, 
that the firm were liable for the value of 
the hides. The court cited Gouthwaite v. 
Duckworth, supra, and, commenting on 
Saville v. Robertson, referred to by the 
defendants, said: "This authority, then, 
is so far from justifying the defence, that 
it vindicates the claim of the plaintiff; 
for these defendants were in partnership 
when the hides were purchased — they were 
boiight for the concern — they were deliv- 
ered into their tannery — they went to 
their joint benefit, having been purchased 
by H. P. Mott, without disclosing the 
names of his copartners." See also, to the 
same effect, a dicttim of Gibbs, J., iu 
Young V. Hunter, 4 Taunt. 583 ; Brooke 
V. Evans, 5 Watts, 196 ; Griffith v. Buffum, 
22 Vt.' 181. In Wilson v. Whitehead, 
Ackerman & Carleton, 10 -M. & W. 503, 



§ 93] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 103 



self to be held out to the world as a partner.^ The reason is 
obvious. Any person may lend his credit to another, as he may 
lend his money or property; and if he chooses to lend his credit 



the action was assumpsit lor goods sold 
and delivered to the defendant, White- 
head, to be used in printing the ''Sporting 
Review." To establish the joint liability 
with liini of Aekerinan & Carleton, a ver- 
bal agreement between the tliree was i)roved 
that they should bring out and be jointly 
interested in the " S[)orting Review ; " 
Aokerrnan was to be the publisher, and to 
make and receive general payments. Carle- 
ton to be the editor, and Whitehead the 
printer ; and, after payment of all ex- 
penses, the three were to share the profits 
of tile publication eijually. Whitehead 
was to furnish the pa[)er for the work, and 
to charge it to the account at cost price, 
and was also to charge the printing at 
"master's [)rices." On this evidence the 
conrt directed a nonsuit, on the ground 
tliat the other defendants were not jointly 
liable with Whitehead in this action, giv- 
ing the plaintiffs leave to move to enter a 
verdict for tlie admitted value of the paper. 
On the hearing of the motion, Parke, B., 
said : " The question is. Did the other de- 
fendants authorize Whitehead to purchase 



the paper on their account, or on his own ? 
It appears to nie, on tlie true construction 
of tlie contract, that the latter was the 
case. Wlien tlie paper was in his posses- 
sion, he was at liberty to have appropriated 
It to any other purpose than to tlie ' Sport- 
ing Review.' " That is, from the nature of 
the agreement between the parties, it was 
apparent that, contemporary with the pur- 
chase of the goods in (question, there was 
no joint interest in them on the part of the 
defendants ; but their joint interest therein 
arose subse(|uent to the contract of sale, 
and only after some act had been per- 
formed by Whitehead by which the paper 
was appropriated to the use of the partner- 
ship." See Barton v. Hansom, 2 Taunt. 
49 ; Aspinwall i-. Williams, 1 Ohio, 38 ; 
Austin V. Williams, 1 Ohio, 282. Of 
course the same considerations are appli- 
cable where, in pursuance of an agreement 
to prosecute an adventure in companj', 
one or more of the partners, on his own 
credit, borrows money, and puts it into 
the firm as his contribution to the joint 
fund. Smith v. Craven, 1 Cr. & J. 500. 



1 Ex parte Broome, 1 Rose, 69 ; De Berkom v. Smith, 1 Esp. 29; Goode t?. Harrison, 
5 B. & Aid. 147 ; Baird v. Planque, 1 F. & F. 344 ; Edmundson v. Thompson, 2 F. & 
F. 564 ; Kirkwood v. Cheethani, 2 F. & F. 798; Gurney v. Evans, 3 H. & N. 122 ; 
Martyn v. Gray, 14 C. B. N. s. 824 : Donbleday v. Mnskett, 7 Bing. 110 ; Lake v. 
Argyll, 6 Q. B. 477 ; Collingwood v. Berkeley, 15 C. B. N. s. 145 ; Maildiek v. 
Marshall, 16 C. B. N. s. 387, 17 C. B. N. s. 829 ; Buckingham v. Burgess, 3 McLean, 
364; In re Jewett, 15 N. B. R. 126 ; In re Krueger, 2 Low. 66 ; Schlapbaek v. Long, 
90 Ala. 525, 8 So. 113 ; Bowie v. Maddox, 29 Ga. 285 ; Carmichael i>. Greer. 55 Ga. 
116 ; Fisher v. Bowles, 20 111. 396 ; Sherrod v. Lnng.lon, 21 la. 518 ; Walrath v. Viley, 
2 Bush, 478 ; Palmer v. Pinkham, 33 Me. 32 ; Potter v. Greene, 9 Gray, 309 ; Rice v. 
Barrett, 116 Mass. 312 ; Mershon v. Hohensack, 2 Zab. 372 ; McStea v. Matthews, 50 
N. Y. 166 ; Reber ■;;. Col. Machine M'f'g Co., 12 Oh. St. 175 ; Speer v. Bishop, 2 I Oh. 
St. 598 ; Drennen v. House, 41 Pa. 30 ; Furber v. Carter, 11 Humph. 271 ; Gushing r. 
Smith, 43 Tex. 261 ; Hnris v. Crary, 67 Tex. 383, 3 S. W. 316 ; Stearns v. Haven, 
14 Vt. 540 ; Mathews v. Felch, 25 Vt. 536 ; Wait v. Brewster, 31 Vt. 516. 

This princi]ile is a]iplicable where one represents himself to be partner in a business. 
Brugman v. M.Guire, 32 Ark. 733 ; Dailey v. Coons, 64 Ind. 545 ; Dodd v. Bishop, 30 
La. Ann. 1178 ; Baldey v. Brackenridse, 39 La. Ann. 660, 2 So. 410; Cirkel v Cros- 
well, 36 Minn. 323, 31 N. W. 513 ; Shaferu. Randolph, 99 Pa. 2.i0 ; Walker v. Brown, 
66 Tex. 556 ; Coi'nhauser v. Roberts, 75 Wis. 554, 44 N. W. 744. 

It is equally applicable where one allows himself to be held out as partner by another ; 
lint his eoiisent to tlie holding out must be proved. Humes v. O'Bryan, 74 Ala. 64 ; 
Alabama Fertilizer Co. v. Reynolds, 79 Ala. 497 : Kritzer v. Sweet, 57 Mich. 617, 24 
N. W. 764 ; Seabury r. P.olles, 51 X J. 103, 16 All. 54. 



104 THE LAW OF PARTNERSHIP. [CH. VI. 

or responsibility, he must of coui'se abide by the consequences of 
any contracts made on the faith of it. Most cases of this kind 
occur where a partner retires from a firm, and his retirement is 
unknown, either through his wish or his negligence. These 
we propose to consider together in reference to the duties and 
liabilities of a retiring partner. 

It has been said, holding out one's self as partner to the world 
" is not a wise expression ; " and the question should be, " whether 
he so held himself to the plaintiff, or under such circumstances of 
publicity as to satisfy a jury that the plaintiff knew of it and 
believed him to be a partner." {y) But to hold one's self out " to 
the world " means, precisely, so to hold one's self out as to justify 
anybody and everybody in believing him a partner ; and it seems 
to be a very good expression for this purpose. It is a different 
case, when the plaintiff relies upon tiie fact that the party sought 
to be charged so held himself out specifically to the individual 
charging him. 

[One who is held liable as a partner because he has been so held 
out is called a nominal or quasi partner. 

This liability because of holding out rests upon the doctrine of 
estoppel, because the defendant, having represented himself to be 
a partner, cannot afterwards by showing the falsehood of the 
representations defraud those who have acted upon them. It does 
not make him an actual partner.^ Therefore he is held liable only 
to one who knew of the holding out at the time he acted, and acted 
in reliance upon it.^J 

(y) So said, by Parke, J., in Dickinson v. A'alpy, 10 B. & C. 140. 

1 Grabenheiraer v. P.indskotf, 64 Tex. 49. 

2 A^ice V. Anson, 7 B. & C. 409 ; Dickinson v. Valpy, 10 B. & C. 128, 140 ; Carter 
XK Whalley, 1 B. & Ad. 11 ; Pott v. Eyton, 3 C. B. 32 ; Edmundson v. Thompson, 31 
L. J. Ex. 207; Thompson v. First Nat. Bank of Toledo, 111 U. S. 529 ; Benedict v. 
Davis, 2 McLean, 347; In re Murray, 13 F. R. 550 ; Marble v. Lypes, 82 Ala. 322, 
2 So. 701 ; Tanner & Delaney Engine Co. v. Hall, 86 Ala. 305, 5 So. 584 ; Levy v. 
Alexander, (Ala.) 10 So. 394; Alexander t;. Haiidley, (Ala.) 11 So. 390; Bowie i;. Maddox, 
29 Ga. 285; Hefner v. Palmer, 67 111. 161 ; Brown r. Rains, 53 la. 81, 4 N. W. 867; Mark- 
ham V. Jones, 7 B. ilon. 456 ; Wood v. Pennell, 51 Jle. 52 ; Fitch v. Harrington, 13 
Gray, 468 ; Partridge v. Kingman, 130 Mass. 476; Brown v. Grant, 39 Minn. 404, 40 
N. W. 268 ; Rime] v. Hayes, 83 Mo. 200 ; Hahlo v. Mayer, 102 Mo. 93, 13 S. W. 804 ; 
Parchen v. Anderson, 5 Mont. 438, 5 Pac. 588; Seabury v. Bolles, 51 N. J. 103, 16 Atl. 
54; Burnett y. Snyder, 76 N. Y. 344, 81 N. Y. 550 ; Cook v. Penrhyn Slate Co., 36 Oh. 
St. 135 ; Denithorne v. Hook, 112 Pa. 240, 3 Atl. 777 ; Walker v. Brown, 66 Tex. 556, 
1 S. W. 797. See also Buckingham v. Burgess, 3 McLean, 364, 549 ; Hicks v. Cram, 
17 Vt. 449. 

One or two cases contra cannot be considered as law. Young v. Axtell, 2 H. Bl. 
242 ; Poillon v. Secor, 61 N. Y. 456. 

So where one, who had held himself out as a partner, informed the agent of the 



§ 94.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 105 

Much the greater number of cases relating to the liability of 
one hold out as a ])artner turn upon the rights and duties of a 
retiring partner, and will be considered when treating of that 
subject. 

§ 94. What constitutes holding out. — Persons may come under 
a general liability by merely having the same firm name, provided 
tiiey do business in such a way as to lead to the inference sug- 
gested by the name, of an identity of interest, (a) So, too, if one 
is a partner m a house for some business, and the other partners 
carry on another business in which he has no interest, if nothing 
is done or said and no circumstances exist to indicate his want of 
community in this last l)usiness, so that those dealing with the 
other partners are justified in believing that they are dealing 
with him also, he is then liable as a partner, {b) 

(«) James Spencer carried on business James, and became liable accordingly. 

in Manchester under the firm of James Spencer v. Billing, 3 Camp. 310. And two 

Spencer & Co.; and William Spencer, in firms will be held to be one, if they as- 

London, under the style of Sjiencer & Co. sume to constitute one. Beall v. Lowndes, 

It was held, that William Spencer, having 4 S. C. 258. 

been in the habit, personally, or by his (b) Wood & Payne were in partnership 

clerk, of accepting bills drawn upon James as wholesale grocers. Wood, Payne, & 

Spencer & Co., and addressed to William Steele were partnei-s in buying and selling 

Spencer's place of business in London, had cotton ; this last business being carried on 

thereby held himself out as a partner of at Wood & Payne's counting-house, and in 

plaintiff at the time of making the contract on which suit was brought that he was not 
a partner, he could not be held as partner. Willis v. Rector, 50 F. K. 684. And so 
where the plaintiff from any cause had notice. Alabama Fertilizer Co. v. Reynolds, 85 
Ala. 19, 4 So. 639. See Alderson v. Pope, 1 Camp. 404 n.; Entwisle v. Mulligan, 
(Pa.) 12 Atl. 766 (semb^e). 

Where the representation was not that the party was, but that he was about to 
become, a partner, he cannot be held as a nominal partner, since an estoppel cannot be 
founiled upon a representation as to the future. Bourne v. Freeth, 9 B. & C 632 ; 
Reynell v. Lewis, 15 M. & W. 517. And so a representation after the contract is made 
will not make one a nominal partner. Ridgway v. Philip, 1 C. M. & R. 415. 

If the plaintiff, at the time of dealing with a firm, had been led by the defendant to 
believe the latter a partner, and therefore dealt with the firm believing defendant to be 
bound, the defendant is liable, although no special reliance was placed on his credit. 
Strecker v. Conn, 90 Ind. 469 ; Lieb (;. Craddock, 87 Ky. 525, 9 S. W. 838. 

It has been held in North Dakota that if the holding out as partner continues for a 
long time, the plaintiff need not show that he relied upon the representation ; for such 
reliance will be presumed. Braithwaite v. Power, 1 N. D. 455, 48 N. W. 354. And 
in Rizer v. James, 26 Kas. 221, it was held that even in the absence of evidence that 
the plaintiff was misled by the holding out, the reputed partner would be liable as 
nominal partner. 

A plaintiff may prove that the defendant was held out as partner with his own con- 
sent by showing such holdings out, though they did not come to the plaintiff's knowl- 
edge ; and may then show that he relied upon the defendant's partnership hy showing 
a holding out to him, though not by consent of the defendant. Fletcher v Pullen, 7.0 
Md. 205, 16 Atl. 887. 



106 



THE LAW OP PARTNERSHIP. 



[CH. VI. 



The rule, then, is that every one who authorizes another to 
believe him a partner, is, as to the person so authorized, a part- 
ner ; but it must also be true that this authorization must be such 
as would be so regarded by a reasonable and fair man ; and a 
mere conjecture that a man is a partner, even from circumstances 
tending that way, is not sufficient to hold him as such, (e) 

Usually, the question whether one is liable as a partner because 
so held out by himself, or with his consent, turns upon the force 
and meaning of his acts. If his name is advertised, (q) or is on 



the name of Wood & Paj'iie. Steele, how- 
ever, had no concern in the grocery busi- 
ness, nor did he take an active part in the 
cotton business ; nor was lie known as a 
2)artner therein, either to the plaintiffs or 
to the woild. Wood & Payne bought 
groceries of the plaintiffs ; for which they 
gave a bill of exchange I'eceived by Wood 
& Payne, as cotton dealers, for cotton sold 
to the drawer, and in which Steele was 
interested. This bill was payable to the 
defendants or order, and was indorsed by 
either Wood or Payne, by the name of the 
firm of Wood & Payne. It was held that 
Steele was liable as partner on such indorse- 
ment. Swan V. Steele, 7 East, 210. See 
Miner v. Downer, 19 Vt. 14. Assumpsit 
on a bill of exchange by the indorsees 
against the defendant as one of the 
drawers, the other drawer having become 
bankrupt. The bill was drawn in the 
name of "James King & Co.," under 
which firm the defendant and his partners 
had traded. It also appeared that there 
were other partnerships carried on under 
the firm of "James King & Co.," in 
which the other drawers were concerned, 
but in which the defendant had no share. 
The defendant offered to show that this 
bill was not drawn on account of the part- 
nership in which he was concerned, but on 
account of one of the others, and that he 
knew nothing of it. Lord Kenyon was of 
opinion that the defendant was neverthe- 
less liable ; he had traded with the other 
partners under that firm, and persons tak- 
ing bills under it, though without his 
knowledge, had a right to look to him for 
payment. Baker v. Charlton, Peake, 80. 
See Fleming t\ McNair, cited in 1 Mon- 
tagu on Part. 37, note (c); and in 3 Dow, 
229. In Baker I'. Nappier, 19 Ga. 520, it 
appeared that Kilgrow & Price were in 



partneiship in the hotel business, and 
Kilgi'ow & Patillo in the grocery business. 
From the evidence, also, it was doubtful 
whether each firm did not sometimes use 
or recognize the name of E. W. Kilgrow & 
Co. as its own. For goods bought of Kil- 
grow, in the name E. W. Kilgrow & Co., 
the plaintiifs sought to hold the firm of 
Kilgrow & Price. The court held, that the 
jury should be instructed, " that, if Baker 
& Hart (the plaintiffs), after taking reason- 
able care to find out which firm Kilgrow 
was dealing for, really thought he was 
dealing for that in which Mrs. Price. was a 
member, and so sold him the goods, in- 
tending them for that firm, and if the 
goods were adapted to the business of that 
firm, — then that firm was liable to pay 
for the goods, although Kilgrow, in truth, 
intended them for the other firm, and 
although they went into the other firm." 

(e) This is well illustrated by the lan- 
guage of the court in Baker v. Kappier, 19 
Ga. 520, which has just been cited. In 
the course of its opinion in that case the 
court said : "A merchant, in dealing with 
a i)erson known to him to be a member of 
two different firms, and in resi)ect to goods 
suitable to either firm, would in general 
be in the exercise of no more than ordi- 
nary care, if he called on that person to 
know which was the firm he was dealing 
for. And if, without making any such 
inquiry, the merchant should sell the per- 
son the goods, thinking him to be acting 
for one firm when he was acting for the 
other, the merchant could, in general, hold 
only the firm for which the person was 
really acting, liable." 

[q) In Ex parte Matthews, 3 Yes. & B. 
125, the petitioner prayed that the joint 
commission against himself and John Mat- 
thews as partners might be superseded : 



§ 95.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 107 

the painted signs over the door, (r) on the shop-bills or cards, (s) 
and he knows this and makes no objection, he is bound. 

§ 95. Consent must be Shown. — But a person cannot be made 
liable as j)artner because so held out, unless the holding out is 
})roved to have been with his concurrence. Hence the declaration 
or acts of A., implicating B. as his partner, wliile they bind the 
former, cannot affect the latter, without some confirmation by 
him. (t) As to public acts of this kind, there is some presump- 



and stated that he, the petitioner, never 
was a partner, nor interested with John 
Matthews nominally or really in the prop- 
erty or profits of his trade, or any other 
trade ; that he was merely the sliopman to 
John j\[atthews, and not a trader ; and 
that there was no pretence for supposing 
him a partner with John Matthews, ex- 
cept an advertisement in the "Gazette," 
declaiing the partnership between them 
dissolved ; which advertisement was In- 
serted for the purpose of counteracting a 
report that they were partners. The Lord 
Chancellor held, that upon the affidavits 
he could not possil)ly decide that there was 
no partnership ; and, accordingly, that an 
issue must be directed to try that question. 

{)) Williams v. Keats, 2 Stark. 290 ; 
Dolman v. Prichard, 2 C. & P. 104. 

(s) Young V. Axtell, 2 H. Bl. 242 ; 
Gill V. Kuhn. 6 S. & R. 338 ; Benedict v. 
Davis, 2 McLean, 348. See further, for 
illustrations of the methods by which per- 
sons may exhibit themselves as partners. 
Ex parte Langdale, 18 Ves. 300 ; s. c. 
2 Rose, 444 ; Bond v. Pittard, 3 M. & W. 
357 ; Guidon v. Robson, 2 Camp. 302 ; 
Geddes v. Wallace, 2 Bligh, 296 ; Stearns 
V. Haven, 14 Vt. 540 ; Hicks v. Cram, 17 
Vt. 449 ; Cottrill v. Vanduzen, 22 Vt. 
511 ; Matthews v. Felch, 25 Vt. 536 ; 
Perry v. Randolph, 6 Sm. & M. 335 ; 
Chapman v. Wilson, 1 Rob. (Va.) 267; 
Mershon v. Hobensack, 2 N. J. 372: Smith 
V. Smith, 27 N. H. 244 ; Holmes v. Por- 
ter, 39 Me. 157 ; Barnett v. Smith, 17 111. 
565 ; Mi'Mnllan v. Mackenzie, 2 Greene 
(la.), 368 ; Chidney r. Porter, 21 Pa. 390. 
If A., wishing to get bills discounted, in- 
troduces B., as his partner, to 0., but the 
only connection between A. and B. is in 
discounting bills, B. is not hereby so held 
out as a general partner with A. as to be 



liable for goods afterwards bought by A. 
of a person who had been informed bj' C. 
that A. and B. were partners. Berkom v. 
Smith, 1 Esp. 29. See Ridgway v. Philip, 
5 Tyrw. 131. A person is not liable as 
partner because so held out, who has signed 
his name to an instrument importing that 
the subscribers intend, upon the fulfilment 
of certain conditions, to cairy on business 
ill ])artnership. He has not thereby held 
himself out to the world as a partner in 
a company already formed. Bourne v. 
Freeth, 9 B. & C. 632. Nor is one who 
has retired from a firm, and given due 
notice thereof, liable as a partner to third 
persons for goods supplied to a ship, be- 
cause, having before retirement defectively 
conveyed his interest as a partner therein, 
his name appears on the ship's register 
down to a i)eriod subsequent to the deliv- 
ery of the goods, when he joins with the 
assignees of the other partners in making 
a good title thereto to their vendee. M'lver 
V. Humble, 16 East, 169. See Hoare v. 
Dawes, 1 Doug. 371. 

(0 Whitney v. Ferris, 10 Johns. 66 ; 
McPherson v. Rathbone, 7 Wend. 216 ; 
Jennings v. Estes, 16 Me. 323 ; Thornton 
V. Kerr, 6 Ala. 823; Tuttle v. Cooper, 
5 Pick. 414 ; Anderson v. Levan, 1 W. & 
S. 334 ; Taylor v. Henderson, 1 7 S. & R. 
453. See Matthews v. Felch, 25 Vt. 536 ; 
McBride v. Protection Ins. Co., 22 Conn. 
248, 259. " The holding one's self out to 
the world as a partner, as contradistin- 
guished from the actual relation of part- 
nership, imports at least the voluntary act 
of the party so holding himself out. It 
imydies the lending of his name to the 
partnership ; and is altogether incompati- 
ble with the want of knowledge that his 
name has been so used. Thus, in the or- 
dinary instances of its occurrence, when a 



108 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



tion that he knows and permits them ; and he can escape the 
liability only by proving his want of knowledge and consent, (u) 

If he knew, and neither consented nor refused, nor took any 
steps in relation to it, then he would be held as consenting ; for 
he is in fault, and he should suffer rather than the wholly inno- 
cent persons whom he permits to be deceived. And if he does 
something in the way of objecting, the question then is, What 
and how much ? (v) and we take the only rule to be, that if he is 
held out as partner, and knows it, he is chargeable as one, unless 
he docs all that a reasonable and honest man should do, under 
similar circumstances, to assert and manifest his refusal, and 
thereby prevent innocent parties from being misled. If he does 
anything which might fairly produce the impression that he is a 
partner, or, when another does this, fails to do what he should to 
remove or prevent this impression, then he is as much liable as 
if he calls himself a partner. 

§ 96. Nominal Partner as Party in Suit. — If one is chargeable 
as partner because so held out, he may be treated as one, not 
only by being made responsible, but by being joined with the 
partners in a suit against them, {w) Where there is a partner- 



person allows Lis name to remain in a firm, 
either exposed to the public over a shop 
door, or to be used in printed invoices or 
bills of parcels, or to be published in adver- 
tisements, the knowledge of the j>arty that 
his name is used, and his consent thereto, 
is the very ground upon which he is es- 
topped from disjinting his liability as part- 
ner." Fox V. Clifton, 6 Bing. 776. 

(k) See cases cited in preceding notes. 
[Where general reputation of a partner- 
ship was so widespread that it must have 
come to the knowledge of the parties af- 
fected, who did not deny it, this is a suf- 
ficient holdding out. Tanner & Delaney 
Engine Co. v. Hall, 86 Ala. 305, 5 So. 
584.] 

(v) As in the case of a retiring partner, 
who, it seems to be settled, must notify 
the dissolution to the public by proper 
advertisements, and, perhaps, to custom- 
ers by a particular notice. Newsonie v. 
Coles, 2 Camp. 617. See Leavitt v. Peck, 
3 Conn. 124. See also post, § 315 et seq. 

(?/') That a nominal partner may be 
joined in a suit against the other partners 
is shown by almost every case in which 
this liability of a nominal partner is tested. 



See Goode v. Harrison, 5 B. & Aid. 156. 
That one lield out as partner may be a 
co-plaintiff in a suit with the other part- 
ners, see Guidon v. Robson, 2 Camp. 
302 ; Kell v. Nainby, 10 B. & C. 20. In 
Smith V. Sherwood, 10 Jiir. 214, A. filed a 
bill for an account against B. & C, alleg- 
ing himself a partner with them. B. & 
C, in their answer, denied the existence 
of the partnership, and stated that the 
plaintiff was their foreman, whom they 
had contemplated taking into partner- 
ship, and whom, therefore, they had al- 
lowed to hold himself out as their partner 
in many ways. They admitted that the 
accounts had been made out in the name 
of B., C, & A. ; that, in a certain specifi- 
cation of buildings required by them, the 
buildings had been described as the prop- 
erty of B., C, & A. ; and also that they 
had served A. with a notice to dissolve 
partnership. The Vice-Chancellor held, 
that there was sufficient proof of the exist- 
ence of a partnership between B., C, & A. 
Such a partner may also be made a bank- 
rupt as a member of the firm. Jle Krueger, 
2 Low. 66. [1)1 re Rowland, L. R. 1 Ch. 
421.1 



§ 97.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 109 

ship as to third parties, the law presumes a partnership as 
between themselves, (y) 

[And indeed it is usually impossible for the plaintiff to know, 
before bringing suit, that the nominal partner is not a true 
partner. 

But since the nominal partner is not a partner in fact, nor inter- 
ested in the property of the partnership, he should not be joined 
as plaintiff in an action on a simj^lc contract of the firm, (jjy) ^ 
But if the nominal partner is named as a party to a bill or note 
he must of course be joined in any action brought upon it ; since 
an action on mercantile paper must be brought by or against the 
parlies to it.^] 

§ 97. Firm Name. — Every partnership sliould have its proper 
name or style. It may be whatever name the partnership chooses ; 
(j^e') and this name need not be prescribed in the articles, or 
determined upon by express agreement. It may grow out of the 
custom of the firm, and the manner in which it carries on its 
transactions. (/) If it have no name, and even if it avoid having 



(y) Lord EUenborough in Peacock v. to have no interest whatever in the con- 
Peacock, 2 Camp. 4.5. cern. Parsons v. Crosby, 5 Esp. 199 ; 

{ijjj) A nominal partner need not join Davenport v. Rackstrow, 1 C & P. 89; 

as a coplaintitf in an action on a con- Kell v, Nainby, 10 B. & C. 20 ; Glossop 

ract made by the firm. Ex jjarte Alex- v. Colman, 1 Stark. 25 ; Teed v. Elworthy, 

ander, 1 Glyn & J. 409 ; Atkinson v. 14 East, 210. 

Laing, 1 Dow. & R. 16 ; Bernard v. Wil- {ce) Crawford v. Collins, 45 Barb. 269. 

COY, 2 Johns. Cas. 374. See Allen v. (/) In Le Roy v. Johnson, 2 Pet. 186, 

White, Minor, 365. On the other hand, Hoffman & Johnson had entered into arti- 

the nominal partner may be a witness cles of copartnei'ship, and one of the ques- 

for the plaintiff, if he be clearly shown tions in the case was, what the firm-name 



1 Kell V. Nainby, 10 B. & C. 20 ; Cox v. Hubbard, 4 C. B. 317 ; Spnrr v. Cass, 
L. R. 5 Q. B. 656 ; Bishop v. Hall, 9 Gray, 430. See also Teed v. Elworthy, 14 East, 
210 ; Parsons v. Crosby, 5 Esp. 199 ; Davenport v. Rackstrow, 1 C. & P. 89 ; Harrison 
V. Fitzhenry, 3 Esp. 238 ; Glossop v. Colman, 1 Stark. 25 ; Ex parte Watson, 19 Ves. 
461 ; Kieran v. Sandars, 6 Ad. & El. 515 ; Allen v. White, Minor, 365. 

2 Guidon v. Robson, 2 Camp. 302. In that case the action was brought by Guidon 
alone against Robson, upon a bill of exchange, drawn in the name of Guidon & Hughes 
upon Robson, and by him accepted. Hughes was simply a clerk of Guidon. Lord 
EUenborough said : "There being such a person as Hughes, I am clearly of opinion 
that he ought to have been joined as a partner. He is to be considered in all respects 
a partner as between himself and the rest of the world. Persons in trade had better be 
very cautious how they add a fictitious name to their firm, for the purpose of gaining 
credit. But where the name of a real person is inserted, with his own consent, it mat- 
ters not what agreement there may be between him and those who share the profit and 
loss. They are equally responsible, and the contract of one is the contract of all. In 
this case, the declaration states that the defendant promised to ])ay the money specified 
in the bill, to the plaintiff only, whereas she promised to pay it to the plaintiff jointly 
with another person. The variance is fatal." 



110 



THE LAW OF PARTNERSHIP, 



[CH. VI. 



one, the responsibilities of those who can be shown to be actually 
partners will not be prevented or lessened. (</) [Any name may 
be adoj)ted as the firm name, even though of a form appropriate 
for a corporation.]* 

But, when there is an adopted and recognized style, nothing 
else, as such, binds the partnership.^ But though a partnership 
style has been agreed on in the articles or otherwise, and has 
been used accordingly, proof that another name is also custom- 



was. Washington, J., said : " It is quite 
clear that the name of this firm is novvliere 
designated in tlie articles of copartnership 
which have been referred to. The mode 
in which a paiticular branch of their busi- 
ness was to be conducted cannot reason a- 
bl)'^ be construed to give a name to the 
firm. It manifestly had no allusion to 
that subject. The stipulation that the 
funds necessary for the purposes of the 
concern should be raised upon the paper 
of Johnson, to be indorsed by Hoffman, 
or in such other shape as might be found 
most suitable to the object of the {larties, 
no more designated Jacob Hoflfman than it 
did George Johnson as the name of the 
copartnership. It is unnecessary to decide 
whether the omission to agree upon a part- 
nership name in the body of the instru- 
ment was or was not supplied by the 
signatures of the contracting parties to 
it ; because it was in full and uncontra- 
dicted proof that, after the concern went 
into operation under the articles, their 
books were kept, and the bills and ac- 
counts relating to their business were made 
out at their warehouse, in the joint names 
of Hoffman & Johnson, by which name 
the firm was generally known in Alexan- 
dria, and in which they acted in relation 
to the business of the concern, and adver- 
tised in the newspapers. Xow, it cannot 
be questioned but that a name thus as- 
sumed, recognized, and publicly used, be- 
came the legitimate name and style of the 



firm, not less so than if it had been adoi>ted 
by the articles of copartnership." W. G. 
& C. agreed to enter into partnership ; but 
the articles were silent as to tlie name of 
the firm. C. bought merchandise on joint 
account, and executed a note therefor, 
signed in the name of himself & Co. It 
was held, that, in the silence of the arti- 
cles on tlie subject, the fair presumption 
was that the style adopted by C. was that 
agreed upon by the parties as the name of 
the firm. Aspinwall v. Williams, 1 Ohio, 
38 ; Drake v. Elwyn, 1 Gaines, 184. In 
Kipley v. Colby, 23 N. H. 443, the court 
said: "Was the evidence competent to 
show that the plaintiffs constituted the 
firm of S. F. Ripley & Co. The evidence 
was direct that the plaintiffs agreed to 
hire a stable for their common use ; that 
they afterwards occupied this stable ac- 
cording to this agreement ; that they fur- 
nished mone)' in the stipulated proportions 
to pay their hostler, and to pay the rent. 
They made these repairs on the building 
while tliey so occupied it. Tiiey entered 
and held under a lease made by the de- 
fendants to S. F. Ripley & Co. This 
must be hehl competent and (juite satis- 
factory evidence that the plaintiflfs were 
partners under the firm of S. F. Ripley & 
Co., and, as such, made the repairs in 
question." 

(g) See Bank of Rochester v. Mou- 
teath, 1 Den. 402. 



1 Carico v. Moore (Ind.), 29 N. E. 928 ; Holbrook v. Insurance Co., 25 Minn. 229. 

•■2 Kirk V. Blurton, 9 M. & W. 284 ; Faith v. Richmon<l, 11 A. & E. 339 ; Norton 
V, Thatcher, 8 Neb. 186. See also Norton v. Seymour, 3 C. B. 792 ; Maclae i;. Suth- 
erland, 3 E. & B. 1 ; Drake v. Elwyn, 1 Gaines, 184 ; Michael v. Workman, 5 W. Va. 
391. 

There is one exception to the general rule that a partner can bind his firm by the 
issue of commercial paper only when he makes use of the firm name. At common 



§ 97.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. Ill 

aril}' employed in the dealings of the firm, with the concurrence 
of all the partners, or even of the managing partner alone, will 
sultice to make that name one by which the partnership will be 
bound. (A) [And a change in the name of a firm without any 
change in membership, does not change the partnership itself.]^ 
If the style be A., B.,& Co., the Co. being C, a note signed A., 
13., & C, in which they jointly and severally promise to pay, is 
not a partnership note. («) Neither would a note signed " A. & 
B." be the note of the firm. In either case, or almost any other, 
upon proof that the partnership was really the party in interest 



(/i) Williamson v. Johnson, 1 B. & C. 
146. Abbott, C. J.: "It appears from 
the evidence tliat Hopgootl, Uixon, and a 
person named Lye, carrying on business 
in partnership together, were known by 
the description ot Hopgood & Co. All 
their transactions of buying and selling 
were carried on in that name ; but Dixon, 
who was proved to be the manager of the 
whole business, was also in the habit of 
indorsing bills in the name of Hopgood & 
Fowler, by procuration, for the purpose of 
getting them discounted. The question 
then is, whether that sufficiently proves 
the existence of persons using, for the 
purposes of business, the style and firm 
of Ho[igood & Fowler ? At the trial I was 
at first inclined to yield to the objections 
but afterwards altered my 0[)inion. I still 
think that, as between third persons, there 
was sufficient evidence of an imlorsement, 
by persons using the style and firm of 
Hopgood & Fowler ; inasmuch as Dixon, 
the managing partner in the firm of Hop- 
good & Co., was in the habit of issuing 
bills into the world, indorsed under the 
former designation." [Wright u. Hooker, 
10 X. Y. :,1 ; Moffat v. McKissick, SBaxt. 
517.] See Faith v. Richmond, 11 A. & 



E. 339 ; Rogers v. Coit, 6 Hill, 322 ; 
Mifflin V. Smith, 17 S. & R 165 ; Pal- 
iner v. Stephens, 1 Denio, 471 ; Tarns v. 
Hetner, 9 Fa. 411 ; Le Roy v. Johnson, 2 
Pet. 186. 

(i) Perringf. Hone, 4 Bing. 32 ; Crouch 
V. Bowman, 3 Humph. 209. See Marshall 
V. Colman, 2 Jac. & W. 266 ; Kendrick v. 
Tarbell, 27 Vt. 512 ; In re Warren, 1 
Ware (Daveis), 320; Filley v. Phelps, 
18 Conn. 294. In Lord Galway v. Mat- 
thew & Smithson, 1 Camp. 403, where the 
action was against the defendants as sur- 
viving partners, Lord Ellenborough held, 
that a note made in the following manner 
was sufficient on the face of it to bind the 
whole firm • " Sixty days after date, I 
pay Lord V^iscount Galway, or order, 2001. 
value received. For J. Matthew, T. Whit- 
smith, and T. Smithson, J. Matthew." 
But this must of course proceed on the 
presumption that the names of all the 
partners, as subscribed by the partner 
acting for the firm, were to be considered 
the style of the fimi until the contrary 
•was proved. Caldwell v. Sithens, 5 Blackf. 
99. In Norton v. Seymour, 3 C. B. 792, 
the action was upon a note drawn in the 
following form : " Two months after date, 



law a parol acceptance of a bill of exchange is good ; therefore where a partner accepts 
a firm bill by signing his own name, this charges the firm, the true reason being that 
there is a valid parol acceptance. Mason v. Rumsey, 1 Camp. 384 ; Jenkins v. lAIorris, 
16 M. & W. 877 ; Lindus v. Bradwell, 5 C. B. 583 ; Jlay v Hewitt, 33 Ala. 161 ; 
Dougal i;. Cowles, 5 Day, 511 ; Beach v. State Bank, 2 Ind. 488 ; Tolman v. Hanrahan, 
44 Wis. 133. Contra, Taber v. Cannon, 8 Met. 456. 

But where an acceptance is required by statute (e. g. 19 & 20 Vict. c. 57, § 6) to be 
signed by the party charged, the signature of one party does not bind the firm. 
Heenan v. Na.sh, 8 ^linn. 407. 

1 Gill V. Ferri.s, 82 Mo. 156. 



112 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



and under obligation, and that another style than that of the 
partnership was used through inadvertence or fraud, the partner- 
ship would be held liable ', {j ) but no signature other than their 
own would hold them as their signature, {k) ^ 



we promise to pay," &c., and signed, 
" Thomas Seymour, Sai'ali Ayres," in the 
liandwriting of Seymour. The defendant 
Ayres had formerly carried on business at 
tlie place at which the goods, in respect of 
which the above note had been given, had 
been su]iplied, and had admitted that she 
was in partnership with Seymour. A 
circular and invoice issued by Seymour 
were also in evidence ; the circular stating 
that the business would in future be car- 
ried on in the names of Seymour & Ayres, 
and the invoice being headed Sej'mour & 
Ayres. It was objected, on the part of 
the defendant Ayres, that, assuming the 
existence of a partnership between herself 
and Seymour, the latter had no authority 
to bind her by a bill or note signed other- 
wise than with the name of the firm. On 
motion for a new trial of the case, Maule, 
J., said. " As to the form of the note, it 
is to be observed that it is signed by .Sey- 
mour in the name of himself and the other 
member of the firm. Suppose there was 
no authority so to sign it, other than the 
general authority conferred by the part- 
nership, 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. The circular states 
that the business will in future be carried 
on in the names of Seymour & Ayres ; 
that is, in the names of the two persons 
mentioned, whatever those names may be. 
Thomas Seymour is the name of the one, 
and Sarah Ayres that of the other. There 
is, therefore, sufficient evidence of a spe- 
cial authority to sign the note in those 
names, if such special authority were 
necessary." 

(j) kinsman v. Dallam, 5 Monr. 382 ; 
Crozier v. Kirker, 4 Tex. 252. In Faith v. 
Richmond, 11 Ad. & Ell. 339, Richmond, 
Barbour, & Hannay were in ])artnership, 
under the stvle of "The Newcastle & 



Sunderland Wall's End Coal Company." 
j\ promissory note was made by Rich- 
mond, signed as follows : " For the New- 
castle Coal Company, William Richmond, 
manager. At the London and Westminster 
Bank." It was objected that, admitting 
Richmond to be entitled, as a partner, to 
make promissory notes on behalf of The 
Newcastle k Sunderland Wall's End 
Coal Company, yet this was not a note 
drawn in their behalf, and could not bind 
them; "The Newcastle Coal Company" 
not being their firm, nor the London & 
Westminster Bank one with which they 
dealt. The Lord Chief Justice, in sum- 
ming up, observed, that the three defend- 
ants were partners, and Richmond might 
draw bills or notes as their agent ; and 
that if he had done so in the name of The 
Newcastle & Sunderland Wall's End Coal 
Company, or if the plaintiff had been 
used to deal with them as the Newcastle 
Coal Company, the defendants would have 
been bound ; but he left it to the jury 
to say, whether, on the evidence, the note 
in question was one which Richmond, as 
a partner in the first-mentioned firm, had 
authority to draw. A verdict being found 
for the defendants, the Court of Queen's 
Bench refused a rule for a new trial, on 
the ground of misdirection. 

(k) "If, in the body of a promissory 
note, made by one partner, the language 
be, 'I promise to pay,' &c., but the note 
be signed with the copartnership name, 
such note is binding on the firm, and not 
alone on the partner who executed it." 
Doty V. Bates, 11 Johns. 544. But if an 
obligation on its face purports to be the 
act of one partner, and to be made to se- 
cure a debt due from him individually, 
the mere fact that the partnership name 
is signed to this instrument is not suffi- 
cient to bind the firm thereby. Scott v. 
Dansley, 12 Ala. 714. If a note be made 
as follows : "I promise to pay," &c., and 



1 The same partners sometimes carry on business in different ydaces at tlie same 
time ; and it becomes a question whether there is more than one partnership. If the 



§ 98] A^HO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 113 

§ 98. Business done in Name of single Partner. — Questions of 
this kind sunietiiues arise wliere partners in business do not 
advertise or in any public way make known the fact of partner- 
ship, but transact their business under the name of one of their 
partners only. (I) When parties agree to transact business jointly, 
or under an agreement to share in the profits, the name or firm 
which they use is arbitrary and conventional. Tliey may use the 
name of both, or of one of them alone, or any distinct designation, 
by which all will be included and bouud, as if their names were 
used. (7n) But though the business of a C(^partnership may be 
transacted in the name of one partner, that partner alone cannot 
bring an action for the price of goods sold by the house. The 
otlujr acting and ostensible partners must Ije co-plaintitfs. {n) 
And in assumpsit by a co-i)artnership, the plaintiffs must prove 
who compose the firm, (nw) These questions are much compli- 
cated when this partner docs lousiness on his own account also, 
for then the signature may do nothing toward determining whether 

be signed "For A., B., C, & D., A." or Crafts, 9 Met. 392. And where the name 

" I3y A.," it seems that the whole firm is of one partner is the style of the firm, 

liable thereon. Galway v. Smith, 1 Camp, that partner's 7iame, with the addition of 

403 ; Hall v. Smith, 1 B. & C. 407 ; Ex "& Co." will not operate as the signature 

parte Buckley, 14 M. & W. 469. Whe- of the partnership. As where J. B. & V. 

tlier upon such a note there is a separate H., carrying on business as partners un- 

right of action against the executing {)art- der the name of J. B. & C. H., made and 

iier, see post. indorsed a bill of exchange in the name 

(/) The style of a copartnership may of "J. B. & Co.," it was held, that J. B. 

be the name of one of its members. Ex was not bound thereby. Kirk v. Blurton, 

pnr/e, Bolitho, 1 Buck, 100 ; South Caro- 9 M. & W. 284. See Maclae v. Suther- 

liiia Bank v. Case, 8 B. & C. 427 ; Palmer land, 3 E. & B. 34, 35 ; Forbes v. Marshall, 

V Stephens, 1 Denio, 471 ; or of one who 11 Exch. 176, 180. 
is not a partner. Bank of Rochester v. (n) Wilson r. Wallace, 8 S. & R. 53. 

Monteath, 1 Denio, 402 ; Williamson v. (im) Patten v. Whitehead, 13 Rich. L. 

Johnson, 1 B. k C. 146. 150. See Pursley v. Rimsey, 31 Ga. 403 ; 

(?;i) Per Shaw, C. J., in Baring v. Tilford v. Ramsey, 37 Mo. 563. 

same business is carried on simultaneouslj' in several places under the same name, 
there is of course but one partnership. The fact that the name under which the busi- 
ness is carried on is varied would not of itself make a difference. Where the same 
business is carried on by the same parties there is ordinarily but one partnership, 
though the business is conducted under different firm names in the difi'erent places. 
Campbell v. Colorado Coal & Iron Co., 9 Col. 60, 10 Pac. 248. But where the same 
partners carry on different lines of business under different names, there are distinct pai-t- 
nersliips. Second Nat. Bank v. Burt, 93 N. Y. 233. And where a firm is dissolved 
without assets, and the same partners afterwards unite to carry on again the satne 
business, the firms are distinct. In re Nims, 16 Blatch. 439. In fact, it is a question 
neither of name, time, nor place ; but of the intention of the parties to form or not to 
form a new association. Where A. & B. do business as A. & Co., and A. does busi- 
ness in another place under the same name, the creditors of A. in connection with the 
latter business are his separate creditors. Loeb v. Morton, 63 Miss. 280. 



114 THE LAW OF PARTNERSHIP. [CH. VI. 

a i)iirchasc was made, or a bill accepted, or a note given by tliat 
individual alone, or by a partnership of which he was a member. 
All questions of this kind are questions of fact rather than of law. 
Nothing better can be said, perhaps, than that they must be 
answered accordingly as the evidence brings them under this or 
that general principle of the law of partnership. If, for example, 
the character of the goods imrchased, the circumstances of the 
purchase, the use made of them, or the circumstances attending 
the giving of the paper, or any or all of these, sufficiently indicate 
that the transaction was in fact on account of the partnership, it 
will be held as the transaction of the partnership.^ 

1 Where the name of one partner is used as the tirin name it will be presumed that 
the name is used on behalf of the firm. " When a name is common to a firm and to an 
individual member of that iirm, and the individual member carries on no business .se})a- 
rate from that of the firm, there is a presumption that a bill of excdiange drawn, accepted, 
or indorsed in the common name is a bill drawn, accepted, or indorsed for the partner- 
ship, and for which the partnership is liable." Yorkshire Banking Co. v. Beatsoii, 
5 C. P. D. 109, 116. See to the same effect South Carolina Bank c. Case, 8 B. & C. 
427 ; Furze v. Sharwood, 2 Q. B. 388 ; Winship v. Bank of U. S., 5 Pet. 529 ; Scott 
V. Colmesnil, 7 J. .1. Marsh. 416 ; Piank of Rochester v. Monteath, 1 Den. 402 ; Ontario 
Bank r. Hennessey, 48 N. Y. 545 ; Oliphant v. Mathews. "16 Barb. 608 ; Graeff v. 
Hitchman, 5 Watts, 454 : Mifflin v. Smith, 17 S. & R. 165 Where, however, the 
ostensible partner does other busine.ss on his own account, there is no presumption that 
the name is used as the firm name ; and one attempting to charge the firm must show 
that it w.as so used as to bind the firm. U. S. Bank v. Binney, 5 Mason, 176 ; Buckner 
V. Lee, 8 Ga. 285 ; Mercantile Bank v. Cox, 38 Me. 500 ; Manuf. & Mech. Bhuk ?'. Win- 
shiji, 5 Pick. 11 ; Etheridge v. Binney, 9 Pick. 272; Hastings Nat. Bank v. Hibbard, 
48 Mich. 452, 12 X. W. 651 ; Fosdick v. Van Horn, 40 Oh. St. 459. See Beakes v. Da 
Cnnha, 126 N. Y. 293, 27 N. E. 251. In that case, however, it is enough to show that 
the name was in fact used as the firm name, either by the circumstances at the time or 
by the statement at the time of the ostensible partner. Ei: parte Bolitho, 1 Buck, 100; 
Trueman v. Loder, 11 A. & E. 589 ; Etheridge r. Binney, 9 Pick. 272 ; Gernon v. Hoyt, 
90 N. Y. 681. Thus in United States Bank v. Binney, 5 Mason. 189, where the two 
Binneys and John Win.ship were in partnership, under the firm and style of "John 
Winship," and the action was against all the ])artners, as indorsers upon promissoiy 
notes imloised in the name of John Winship, Story, J., said : " The notes are all 
indorsed in the name of 'John Winship.' For aught, therefore, that appears on the 
face of them, they were notes only binding him personally. The plaintiffs must, then, 
go farther and show, either expressly or by implication, that these notes were ottered 
by Winsliip as notes binding the firm, and not merely himself ])er.s()nally, as that the 
discounts were made for the benefit and in the course of the business of the firm. It is 
not sufficient for the plaintiffs to prove that the bank, in discounting these notes, acted 
upon the belief that they bound the fii-m, and were for the benefit and business of the 
Iirm. They must go farther, and prove that that belief was known to and sanctioned 
by Winship him.self in offering notes, and that he intentionally held out to them that 
the discounts were for the credit and on the account of the firm, and that his indorse- 
ment was the indorsement of the firm and to bind them ; and that the bank discounted 
the notes upon the faith of such acts and representations of Win.ship. The jury will 
judge, from the whole evidence, how the case stands in these respects. The mere fact 
that the discounts so procured were applied to the use of the firm is not, of itself, suffi- 
cient to prove that the discounts were ]irocured on account of the firm. It is a strong 
circumstance, entitled to weight, but not decisive." 



§ 99.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 115 

In all such cases, it must be remembered that the individual 
partner whose name is used, has, by law, full authority to repre- 
sent and act for the rest, and use his own name as the name of 
the firm ; and his representations in a matter of business which 
mi<^ht be theirs bind them all, however fraudulent on his part. 
If, therefore, when he purchases goods, or gives a note, or offers 
a note for discount with his indorsement, he rei)resents that he 
acts for the partnership, and the person with whom he deals 
believes honestly and rationally that he does so act, the partner- 
ship, and of course all the partners, are bound, although no name 
but that of the individual was used in the transaction. 

The use of such a name as usually indicates partnership, even 
though it may be primd facie evidence of partnership, is slight and 
easily rebuttable.^ 

§ 99. Ostensible Partners pass Property. — [Where there is a 
secret partner, any dealing with the firm property by the osten- 
sible partnere would seem to bind the secret partners. So where 
one is an ostensible sole trader, a pledge of the property for his 
private debt is binding upon the secret partner.'' So where the 
firm appears to consist of A. & B., who transfer firm property 
in payment of their joint debt, this gives the creditor a valid 
title as agaiiiijt a secret partner.'^ On the other hand, where a 

1 Charman v. Heiishaw, 15 Gray, 293. Thp use of sucli a name gives rise to no pre- 
sumption of partnership. Brenuan v. Pardridge, 67 Mich. 449,35 X. W. 85. Where a 
statute provides that action may be brought against a partnership where it does busi- 
ui'ss, it has therefore been hekl that a sole trader who in doing business added " & Co." 
to his name could not be sued where he did business. Stilling t'. Heintzman, 42 Mich. 
449, 4 N. \V. 165. The opposite conclusion was reached iu Rosenbaum v. Hayden, 22 
Neb. 744, 36 N. W. 147, on the ground of estoppel ; but th* defect being jurisdictional, 
it would seem that it could not be so cured. 

2 Raba v. Eyland, Gow, 132; Cammack v. Johnson, 1 Green Ch. 163; Motley?;. 
Frank, 87 Va. 432, 13 S. E. 26. See Coidiran v. Anderson Co. Bank, 83 Ky. 36. 

* Tupper V. Haythorne, Gow, 135, n. ; Reid v. HoUinshead, 4 B. & C. 867 ; Locke 
V. Lewis, 124 Mass. 1. See Edmunds v. Bushell, L. R, 1 Q. B. 97 ; Dean v. Plankett, 
136 Mass. 195. It has been said (e. g., 2 Bates Part. 1046) that Locke v. Lewis is 
opposed to the doctrine stated above, that if an individual creditor of a partner takes 
firm pro^ierty in payment of his private debt the creditor cannot hold it even if he was 
ignorant that the pioperty was firm property. Ante, § 90, n. 1. That the case is not 
opposed to that doctrine will appear from an examination of the opinion. It was an 
action of re])levin for three carriages. The plaintiff had been in partnership with I. L. 
and D. C. Robinson in the business of manufacturing carriages ; but the firm was dis- 
solvetl, and plaintiff^ convej-ed his share of the business to the Robinsons, and received 
in return a note signed by them. He afterwards accepted from them, in payment of 
the note, the three carriages in question, for which they gave him a bill receipted in 
the name of the firm. Meanwhile, however, they had formed a special jiartnership 
with three others ; but this new partnership was unknown to the plaintiff", and the 
business was continued as before. Tlie new firm attached the carriages, and this action 
was brought against the attaching sheriff. In the course of the opinion, Gray, C. J., 



116 THE LAW OF PARTNERSHIP. [CH. VI. 

partner so deals with his property as to make it apparently 
partnership proi)erty, one who buys it from the other partner 
gets a valid title. ^] 

§ 100. Liability for Tort of a Partner. — Partners are liable in 
solido for the tort of one, if that tort were committed by him as a 
])artner, and in the course of the business of the partnership. This 
principle is frequently illustrated by cases in which a partnership 
is held liable for injury caused to third persons by their having 
acted upon the false and deceitful representations made to them 
by one partner. (J) 

(b) Patten r. Garney, 17 Mass. 182 ; assumpsit to recover the value of the 
DoieniusD. McCormick, 7 Gill, 49 ; Locke goods sold, or in an action on the case to 
V. Stearns, 1 Met. 560 ; National Ex- recover damages for the deceit practised, 
change Co. v. Drew, 2 Macq. 103; Blair Hawkins v. Ajipleby, 2 Sandf. 421. In 
V. Bromlej', 5 Hare, 542, 2 Phillips, 354. one case (Willettu. Chambers, Cowp. 814), 
See Brydges v. BranfiU, 12 Sim. 369; i)articiilar circumstances were held to make 
Coomer v. Bromley, 5 De G. & S. 532 ; a partner liable for a fi-aud committed by 
Chester v. Dickerson, 51 Barb. 349. As his copartner before the beginning of their 
wiiere the plaintiffs were induced to take ])artnership. The facts were these : Prior 
the note of a third party in payment for to any partnership between the defendant 
goods sold upon the representation of one and Dudley, an attorney and conveyancer, 
of the defendants, who were partners, that the latter, in the year 1771, received of a 
it was good, when, in fact, the defendants Mr. Bindley the sum of 350^., to be laid 
knew the makers were insolvent, and the out on real security. Dudley accordingly 
note worthless ; it was held, that the defen- furnished him with a mortgage from a Mr. 
dants were liable, either in an action of Hughes to that amount, which, as it after- 
said : "If the private creditor has no knowledge that tlie property belongs to the part- 
nership, and tlie partnership has entrusted its property to one partner in such a manner 
as to enable him to deal with it as his own, and to induce the public to believe it to be 
his, then the other partners fall within the rule that when one of two innocent pei'sons 
nmst suffer, that one must suffer who bj' his acts or conduct has afforded tlie means of 
committing the fraud. To hold a sale or a contract by the ostensible partners to be 
absolutel)' void, for abuse of authority by them, so as to confer no title and no rights 
upon a person dealing with them in good faith, within the apparent scope of their 
authority and right, with no knowledge of any abuse thereof, would be to apply to 
partners, having both title and authority amjde for the purpose, a stricter and narrower 
rule than is applied to an ordinary agent exercising a bare authority without interest. 
. . . The case upon which the defendant principally relies is Rogers v. Batchelor, 12 
Pi't. 221. But nothing was adjudged in that case inconsistent with the views above 
stated. . . . "We would not be understood to affirm that the mere belief of the 
separate creditor that the property which he receives does not belong to the partner- 
ship will of itself be sufficient to entitle him to hold it, if there has been nothing in 
the acts or conduct of the other partners to induce the belief that the partners with 
whom he dealt were the sole owners. Chazournes v. Edwanls, 3 Pick. 11 ; Gordon v. 
Ellis, 2C. B. 825, 829. . . . If the plaintiff, by the manner in which the general partners 
dealt, and had been allowed by the special ]>artners to deal, with the property sold to 
him, was induced to believe that it was the property of the general partners only, and, 
acting on such belief, bought it in good faith, and with no notice or knowledge that 
the .s]>eri,al partners, or any other person than the general partners, had any interest 
therein, he was entitled to maintain this action." 

I- Birks V. French, 21 Kas. 238 ; Taylor v. Wilson, 58 X. H. 465 {semble). 



§ 101 ] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 117 

§ 101. Notice to one Partner. — [Upon a similar principle, notice 
of a certain state of facts, if proved as to one partner in the course 



ward appeared, Dudley had forged. In 
1776, Dudley and Chambers entered into 
partnership, shortly after which Bindley 
wanted to call in his money. The pre- 
tended mortgagor was represented at the 
same time to want a further sum of 150/., 
which, added to the original mortgage- 
money, made together the sum of 500Z. 
The plaintiff, Willett, was read}' to advance 
this sum. And, in consideration of his 
doing so, an assignment was made to him 
of the false mortgage, before made to 
Bindley. As to 180/. imrt of this sum of 
500/., Willett paid it into Dudley's office 
to Chambers ; who gave for it his separate 
receipt, Dudley not being at home. He 
subsequently called at the office, and paid 
the residue to Dudley, who gave therefor 
his separate receipt. It was admitted that 
Chambers was in no respect privy to the 
forgery. Upon these facts, the jury hav- 
ing found for the plaintiff, the Court of 
King's Bench held, that the verdict should 
stand ; Lord Jlansfield saying: "The 
defendant suffers by the rascality of a man 
who had a ver}' good character. I am very 
sorry for the defendant ; but, upon this 
evidence, I cannot say liut that it is a part- 
nership transaction." See, in illustration 
of the general principle of the text, 
Brydges v. Branfill, 6 Jur. 310, s. c. 12 
Sim. 369 ; M'Farland v. Crary, 8 Cow. 
258 ; Lowell v. Hicks, 2 Younge & C. 
481 ; Blight i;. Tobin, 7 Monroe, 617 ; 
Hadfield V. Jameson, 2 Munf. 53 ; Simms 
V. Brutton, 5 Exch. 802 ; State v. Neal, 
27 N. H. 131. In this last case it was 
held, that if one of two persons unlawfully 
sell spirituous liquors in pursuance of an 
agreement between them, and for their 
joint account and benefit, the other party 
may be liable in an indictment for the sale. 
State V. Bierman, 1 Strobh. 256. See 
Townsend v. Bogart, 11 Abb. Pr. 355 
(doubted in Stewart v. Levy, 36 Cal. 159) ; 
Gray v. Cropper, 1 Allen, 337 ; Taylor v. 
Jones, 42 N. H. 25; McKnight v. Ratcliffe, 
44 Pa. 156. " If one partner of a firm col- 
ludes with one of another firm, in a trans- 
action connected with the partnership, the 
partners of the person so colluding are 
liable for damages to the injured firm, by 



reason of that partner's misconduct." Per 
Lord Tenterden in Longman v. Pole, 1 
Dawson & Lloyd, 126, 1 Mood. & Malk. 
223. In that case, the facts were as 
follows : The plaintiffs, Longman & Co., 
bankers, with the defendants, Pole & Co., 
and Hunt, a partner in the house of 
Longman h Co., sent the cashier to the 
defendants with cash to take up bills 
accepted by him in the name of the firm 
and coming due the next day. He accor- 
dingly took uj) the bills, but by Hunt's 
order did not enter them in the plaintiff's 
books. About the same time, Downes, a 
partner in Pole & Co., told one of the 
defendants' clerks that a bill of Longman's 
would come in on such a daj', which he 
was to pay and give to him (Downes), 
debiting Hunt with it in the note-book, 
so that it might not go into the ledger. 
Downes afterwards gave similar directions 
resjiecting another bill. Both these bills, 
which were acceptances b}^ Hunt in the 
name of the firm, were paid and entered in 
the note-book to the debit of Hunt indi- 
vidually ; and the cash payments made by 
Hunt to provide for these bills were also 
entered in the same book to his credit, so 
that no trace of these proceedings appeared 
in the pass-book of the defendants or the 
check-book of the jilaintiffs. The cashier 
who gave the above statement also admitted 
that there were bills on Hunt's private 
account to a large amount, which appeared 
in the pass-book (which the plaintiffs were 
not in the habit of examining), but not in 
their check-book. It also appeared, that, 
at the time of these transactions, Hunt had 
a large private acccmnt with the defend- 
ant. Upon this state of facts. Lord Ten- 
terden held the action as brought clearly 
maintainable. But the jury found a ver- 
dict for the defendants, the collusion of 
Downes not being established with suffi- 
cient certainty. The rule respecting the 
liability of partners for each other's torts 
is, as we have seen, confined to such torts 
as a partner commits in that character, 
and in the course of the jmrtnership busi- 
ness. Hence, where three partners were 
sued in an action of trespass, on account of 
the wrongful ejectment by one partner of 



118 THE LAW OF PARTNERSHIP. [CH. VT. 

of the business, will charge all.^ Thus in an action upon a prom- 
issory note, the firm in order to show bona fides must show it as to 
each partner ; ^ and where a firm takes a conveyance or mortgage 
of land, notice to one partner of a defect in the title is notice to 
the firm.-"^ So notice of dishonor of commercial paper to one 
partner is notice to the firm.^ 

Notice to a partner before he entered into the partnership is 
clearly not chargeable to the firm, unless there is some connec- 
tion between the notice and the final transaction.^ And it has even 
been held that notice to one partner prior to the dealings by the 
firm, where the business was done entirely by the other partner, 
is not notice to the firm." It would seem clear, at any rate, tliat 

the tenant of a house, it was ruled that tort, not done in the interests of the part- 
one partner could not involve his copart- nership, will not render the partnership 
ners in such a wrong ; though there might liable. Wilson v. Turnnian, 6 M. & G. 
he exceptions to the rule, as where the 236 ; Grund v. Van Vlack, 69 111. 478. 
tres])ass was in the nature of a taking In Pierce v. Jackson, 6 ]\Iass. 245, Parsons, 
which was available to the partnership, C. J., saj's : " A fraud committed by one 
and they afterwaids concurred in it and of the jjartners shall not charge, the part- 
received the benefit of it ; or where, before nership." And in Sherwood i;. Marwick, 
the trespass, they all joined in ordering it. 5 Rle. 295, it seems to have been held, 
Petrie v. Lamont, 1 Car. & M. 9.3. So an that one partner cannot be made liable for 
innocent j)artner is not liable for a deceit the fraud of another, without proof of 
practised by one of the partners upon a actual participation. But in Locke v. 
third person, by the sale to him of such Stearns, 1 Met. 564, where all tlie partners 
partner's interest in the firm. Schwa- were held liable for the deceit of one, 
backer v. Rid<lle, 84 111. 517. ['i'herefore Shaw, C. J., cites and explains both the 
where tlie guilty partner took a note from above cases. He considers them to have 
the jiurchaser for the purchase-money, and been decided on their special facts, and to 
transferred it for value to an innocent be not inconsistent with the general prin- 
partner, the latter can enforce j)ayment of ciple of law under discussion. See Atkin- 
the note. Liddell r. Grain, 53 Tex. 549.] son v. Mackreth, L. R. 2 Eq. 570, and 
Mere subsequent approval of a partner's Linton v. Hurley, 14 Gray, 191. 

1 Steele v. Stuart, L. R. 2 Eq. 84 ; In re Worcester Corn Exchange Co., 3 De G. 
M. & G. 180 ; Merchants' Bank v. Rudolf, 5 Neb. 527 ; State v. Linaweaver, 3 Head, 
51. So where action is brought for injury caused by the falling of a gate belonging 
to the partnership, knowledge of its dangerous condition brought home to one partner, 
charges the firm. Newall v. Bartlett, 114 N. Y. 399, 21 IST. E. 990. So where a statute 
allowed double damages in case timber was knoivingly cut on the land of a third person, 
knowledge of one member of a firm responsible for the wrongful cutting of timber makes 
all the firm liable to the statutory damages. Tucker v. Cole, 54 Wis. 539, 11 N. W. 703. 

2 Frank v. Blake, 58 la. 750, 13 N. W. 50 ; Smith v. Hall, 5 Bosw. 319. 

3 Overall v. Taylor, (Ala.) 11 So. 738 ; Watson i'. Wells, 5 Conn. 468 ; Sanders v. 
Ruddle, 2 T. B. Mon. 139. So of a lack of authority to convey personal property. 
Gray v. Church, 84 Ga. 125, 10 S. E. 539; Ruckman v. Decker, 23 N. J. Eq. 283; 
Williams V. Roberts, 6 Gobi. 493. But see Ringo v. Wing, 49 Ark. 457, 5 S. W. 787, 
where the point was not taken. 

* See post § 1 46. 

6 Williamson v. Barbour, 9 Ch. D. 529 (semble). 

6 Baldwin v. Leonard, 39 Vt. 260. 



§ 102.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 119 

notice to a mere stockholder in a joint-stock bank would not be 
notice to the bank so as to affect a transaction conducted for tlie 
bank entirely by the directors. And such is the rule in England.^ 
It IS otherwise held in Pennsylvania.^] 

§ 102, Malice or Fraud of one Partner. — [The same principle 
applies when a specific state of mind is required for an action of tort. 
Thus whore a writing published by a firm is privileged unless there 
was malice, the malice of one partner renders all the partners 
liable,^ and where a firm had obtained a discharge in bankruptcy, 
the whole firm is liable for a debt fraudulently contracted l)efore 
bankruptcy by t)ne j)artner.'* Ikit the innocent partner cannot be 
declared guilty of actual fraud. ^ One partner may be sul)jected 
to exemplary damages because of the fraud of his copartner.*'] 

It is not always easy to draw the line between such cases and 
those in which the partners are not liable. The fact that money 
})rocured by a fraud becomes j)artnership stock does not render 
them liable without their participation in or consent to the fraud. 
At the same time, if money be raised in the course of partnership 
business, by the fraud of one of the partners, the other partners 
will not be relieved from their liability for the fraud, merely by 
the want of evidence that the money so raised was applied to the 
use or benefit of the firm, (c) 

(e) Compare iMamif. & iMech. Rank v. in an action to recover dainajifes for the 

Gore & (jraftoii, 15 Mass 75, with Boai-ti- deceit, the injured part}', not knowing 

man v. Gore, 1.5 Mass. 331. The firm is the other jiarties, need not join them, 

liable for frauds or torts practised by one Leslie v. Wiley, 47 N. V^. 649. See also 

of the partners in the partnership busi- Dart v. Walker, 3 Daly, 136. The firm 

ness, though the act was unknown to the is not liable lor a tort by one partner, 

other partners. Chester v. Diekeison, 52 when the act is known, by the party m- 

Barb. 349 ; Stewart v Levy, 36 Cal. 159 ; jured, to be in violation of law. Leslie 

Wolf V. Mills, 56 111. 360; Chambers v. v. Wiley, 47 N. Y. 649. See also Dart v. 

Clearwater, 1 Abb. Ajip. 341 ; -lackson v. Walker, 3 Daly, 136. 
Todd, 56 Ind. 406, 75 Lid. 472. But, 

1 Sp- Richmond Ry. & Electric Co. v. Dick, 52 F. R. 879; Powles v. Page, 3 
C. B. 16. 

2 Mci'lurkan v. Byers, 74 Pa. 405. 

3 Lothrop V. Adams, 133 Mass. 471. 

* Cooper V. Prichard, 11 Q. B. D. 351 (C. A.) So each member of a firm is civilly 
liable for a violation of the revenue laws by a copartner, whether with oi without 
the knowledge of the others United States v Thomasson, 4 Biss. 99. 

5 Stewart v. Levy, 36 Cal. 159. Therefore when one partner has obtained credit 
for gooils sold the firm by false ivpresentations, the innocent partner cannot be arrested 
on civil process, under a statute authorizing arrest in case of fraud only. McNeeiy v. 
Hayne.s, 76 M. V. 122. And one partner cannot be punished undci a statute punish- 
ing fraudulent delifors, because of fraudulent coiicealiiieut by his copartner. ■ Watson 
V. Hincbuian, 42 Mich. 27, 3 N. W. 236. 

'^ Robinson c Goings, 63 Miss. 500 ; Peckhain Iron Co. v. Harper, 41 Oh. St. 100. 



120 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



§ 103. Wrongful dealing with Money. — If a partner steals moiie}', 
and deposits it to partnersliip account, innocent partners would not 
be liable for tlie tort, althougb assumpsit for money had and 
received might lie. {d) 



(d) Rapp V. Latham, 2 B. & Aid. 795. 
Latham & Parry were in paituership as 
wine merchants. Parry, being the man- 
aging jmrtuer, in January, 1812, wrote to 
the ]ilaintitl' tliat he had an opportunity 
of [jurchasiiig si.\ty-one pipes of port, at 
65/. per ]iipe, and he desired the plaintiff 
to remit the monej' to pay the price of 
such wine and the duties thereon. The 
plaintiff accordingly remitted the money, 
and Parry represented that he made the 
pui'chase, and afterward, in the name of the 
firm, transmitted an account to the i)lain- 
tiff, stating that thirty of these sixty-one 
pipes have been resold at the price of 8-t/. 
per pipe, and i)aid the [)roceeds of such 
pretended sale to the plaintiff". Other 
similar tiansactions took place, running 
througli a period of about one year. Each 
transaction formed the subject of a separ- 
ate account, and all the purchases were 
described as being made at a certain speci- 
fied rate per pipe. The plaintiff conceived 
that Parry was in fact laying out his 
money in bona fide jnirchases of wine, 
and that he actually resold part of such 
wine as he represented. But, the defend- 
ants failirig, ii appeared that the transac- 
tions were wholly fictitious, though the 
defendant, Latham, did not know that 
they were so. Upon the whole account, 
the plaintiff had received from the sup- 
posed resales more Ujoney than he had 
advanced ; but he contended that he had a 
right, to take each transaction separately, 
and to charge the defendants with the 
amount of the money advanced to them for 
the purchase of every ])ipe of wine not 
accounted for. It was held, that the 
plaintiff Iiaii such right ; that Latham 
could not say that those transactions were 
fictitious wliich Parry had represented to 
be real ; ami that, beside retaining all the 
money tliat had been paid to him on ac- 
count of those fictitious transactions, the 
plaintiff was also entitled to recover back 
the sums advanced for the other supposed 
purchases, as money advanced by him 
upon a consideration not performed, and 



as, therefore, had and received by the 
defendant to his use. In Kilby v. Wil- 
son, Ryan & M. 178, it was held, that no 
l)roperty could be vested in a i)artnership 
by the fiaud of one i)artner to which the 
rest were not privy. Tliere the action 
was trover for divers bales of cotton, 
under the following circumstances : The 
plaintiffs, who were brokers, being em- 
jiloyed by T. & Co to purchase cotton, 
bought it of R,, for the use of T. & Co. 
The plaintiffs paid R. for the goods, de- 
livered East India Company warrants for 
them to T. & Co., and received, in return, 
their check for the cost of the cotton and 
the charges. T. immediately jdedged the 
warrants to the defendant, to cover his 
acceptances for two bills given to T. & Co. 
But the check taken by the plaintiffs for the 
cotton was dishonored ; it afterwards appear- 
ing thatthe only object of T.,in the transac- 
tion, was to raise money, and abscond 
which he accordingly did on the same day 
that he received and pledged the wariants. 
Payne, T.'s partner, who drew the check, 
was altogetlier unconcerned in the frauds 
of the latter. The defendant's acceptan- 
ces were subsequently recovered from T., 
and were deliveied to the defendant by 
the as.signees of T. & Co., which firm had 
been declared bankrupt. Abbott, Ld. C. 
J., left it to the jury to say whether or 
not T. obtained the goods from the plain- 
tiffs with a preconceived design to raise 
money upon them and then abscond, 
without ever paying the plaintiffs ; if he 
did, they should find for the plaintiffs ; 
otherwise, if T. conceived the jdan of 
defrauding the plaintiffs after he had ob- 
tained jiossession of the cotton. See 
Snaith v, Burridge, 4 Taunt. 684. See 
cases cited in last note. Where one mem- 
ber of a firm uses trust funds in speculation 
in stocks, contrary to the copartneiship 
article, and without the knowledge of the 
other, the latter is not liable. Guilliou v. 
Peterson, 9 Phila. 225. If a partner, 
who has knowingly received stolen goods, 
after discovery pays for them out of the 



§ 103.] 



WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 121 



But if it was the business of a firm to receive property on 
deposit and for safe-keeping, and one of the partners stole and 
sold something so deposited, and spent the money, the partnership 
would be liable. This rule, or rather the principle on which it 
' asts, has been applied to trustees, one of whom forged the names 
of his cotrustees, to a power authorizing his copartners to sell. (<i)^ 



funds of the firm, to avoid iiroai-cution, 
the money so paid cannot be recovered 
back in a suit in the name of the firm, 
even if the otlier partner is innocent, and 
tlie goods did not go to the use of the 
firm. Johnson v. Byerly, 3 Head, 194. 

(e) Stone v. Marsh, 6 B. & C. 551. 
The plaintiffs, Fauntleroy and others, lield 
stock as trustees ; and the defendants, of 
whom Fauntleroy was also one, were in 
partnership as bankers. Fauntleroy exe- 
cuted a letter of attorney, authorizing his 
copartners to sell the .said stock, and forged 
thereto the names of his cotrustees. The 
stock was accordingly sold and transferred 
by the partners of Fauntleroy to the credit 
of the purchasers in the books of the Bank 
of England. The consideration-money 
thereof was ]>aid into the bank of the 
defendants' agents, to the credit of the 
defendants, according to the usual prac- 
tice on the sale of stock for the defend- 
ants. Fauntleroy was permitted by his 
partners to conduct the greater part of the 
business of the house without their inter- 
ference, and drew upon the account at 
]\Iartin, Stone, & Co.'s, in the partner- 
ship name (as he thought fit), without 
the knowledge, and in fraud of his part- 
ners, more than the amount of the said 
sums so paid in. The defendants became 
bankrupt. Fauntleroy was tried for for- 



ging a similar instrument, convicted, and 
executed. The plaintiffs then presented a 
petition in bankruptcy, to be allowed to 
prove the amount of stock sold, against 
the joint estate of the bankrupts. There- 
upon the Lord Chancellor directed an issue 
to try whether the defendants and Fa~iint- 
leroy were, at the date, &c., indebted to 
the plaintiffs and Fauntleroy in any and 
what sum of money, it being also ordered 
that no objection should be taken on the 
ground that Fauntleroy was interested as 
a trustee jointly with the plaintiffs, and 
also as a partner with the defendants. Hx 
parte Bolland, Mont. & i\L 315 ; Stone v. 
Marsh, Ryan & M. 364. The Court of 
King's Bench held, that the money re- 
ceived by the banking-house of the defend- 
ants constituted a debt due from them to 
the trustees. Lord Tenterden : ""Upon 
this state of facts, it cannot be doubted 
that it was the duty of the house to place 
the money to the credit of the trustees, 
and retain it for their u.se, and subject 
to their order; and that no ignorance on 
the part of any of them, even sujjposing 
all but one to have been ignorant of the 
facts (which, however, cannot have been), 
nor any neglect on the part of the hou.se, 
arising from a misplaced confidence re- 
posed by them in one of themselves, or 
otherwise, to which the plaintiffs were no 



1 If it is i)art of the business of the firm to receive deposits, or if all the partners 
have knowledge of a deposit, the firm is liable where one partner receives a deposit on 
the firm account, and afterwards converts it or ap])lies it to the general purposes of the 
firm. Cleather v. Twi.sden, 28 Ch. D. 340 (C. A.) ; Moore v. Knight, [1891] 1 Ch. 547 ; 
Til re Ketchum, 1 F. R. 815. So where a firm of solicitors took money to inve.st, and 
on- partner without the knowledge of the others invested it in an inadequate mortgacre, 
all tiie ])artners were liable for the misapplication. Blyth v. Fladgate [1891], 1 Ch, 
337. Where one of a firm of attorneys collected money for a client and misused it the 
other partners were held liable. Porter v. Vance, 14 Lea, 629. And where goods werd 
intrusted to one partner to sell on commission, such being the business of the partner- 
ship, and the partner misapplied the pioceeds, all the partners were liable. Todd 
V. Jackson, 75 Ind. 272. Where one of a firm of attorneys who had negotiated a mort- 
gage took money to use in insuring the property, but failed to do so, the firm was liable 
by reason of the failure. CcUier v. McCall, 84 Ala. 190, 4 So. 367. 



122 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



§ 104. Breach of Trust of Partner. — If one of a firm, being 
also a trustee, applies tlu; trust funds to the use of the partner- 



parties, can deprive the plaiiitills of their 
right to their money." The piaintilfs were 
accordingly admitted to j)rove. For the 
defendants, it was argued at the trial at 
)iisi prias (Ivvan & M. 368) . First, that no 
debt could be founded on and arise out of 
a felony ; and that it was against the jjolicy 
of the criminal law that the party whose 
name had been forged should be allowed 
to adopt the felony, or in any way to sanc- 
tion it, or turn it to his advantage. Sec- 
ond, that, inasmuch as the transfer under 
a forged power worked no alteration of 
property, the plaintiti's had not lost their 
property, but still remained owners of the 
stock, and might call upon the Bank of 
England to account for both the principal 
and dividends. Third, that even if the 
defendants were fixed by the payment of 
the money to their agents, Martin & Co., 
still they were discharged by the repayment 
of it to Fauntleroy, one of the parties whose 
property it was, and into whose hands and 
use it appeared by the evidence to have 
come. In answer to the first objection, it 
was held, in the Court of King's Bench 
(6 B. & C. 564), and by Lord Lyndhurst 
(Mont. & Mac. 397), that it was undoubt- 
edly a [trinciple of law that a man should 
not be allowed to make a felony the foun- 
dation of a civil action. But that this 
rule of law was one founded on public pol- 
icy, which requires that offenders against 
the law shall be brought to justice, and 
ceases to operate when the reason for it 
fails ; and that no such ]iolicy or rule was 
applicable to the present case, the offender 
having already suffered the extreine pen- 
alty of the law for a similar offence. 
Further, that the assertion that the plain- 
tiffs were seeking to ratify a felonious act, 
and were making that act the ground of 
their demand, was incorrect. That the 
ground of their demand was the actual 
receipt of the money [)roduced by the sale 
and transfer of their annuities. That the 
sale was not a felonious act, nor the trans- 
fer, nor the receipt of the money. That 
the felonious act was antecedent to all 
these, and complete without them (.see a 
similar opinion of the court in Boardman 
V. Gore, 15 Mass. 331), In reply to the 



second objection, it was held, in the .same 
courts, that whether or not the plaintifi's 
had a remedy against the Bank of Eng- 
land, it was unnecessary to decide, since 
their remedy against the defendants was 
clear, and, generally speaking, when an in- 
jured party has different remedies against 
different persons, he may elect wliich he 
will pursue. Upon the third objection, 
Lord Tenterden .said, in Kyan & M. 369: 
" But they say, also, that Fauntleroy was 
one of the persons entitled, and that he 
has drawn the money out, and, therefore, 
they are not answerable. Now, if two 
persons give a power of attorney to bank- 
ers to sell out their joint stock, tlie bankers 
ought to place the proceeds to their joint 
account, and both ought to draw. If it is 
meant that the money should be paid to 
one, an authority to that effect ought to 
be given to the bankers ; that, in my ex- 
perience, has been the ordinaiy juactice. 
If you are of o{)inion that this is the usual 
mode of dealing, then, as against the other 
two, it is no defence that the payment has 
been made to one only of several who are 
jointly entitled to receive it." See, to the 
.same point, Ex parte Bolland, 1 jMont.& 
A. 570 ; Keating v. Marsh, 1 Mont. & A . 
582 ; Marsh v. Keating, 1 Mont. & A. 592 ; 
s. c. 2 CI. & Fin. 250. In Hume ?■. Bol- 
land, 1 C. & M. 130, s. c. 2 Tyr. 575, a 
case arising out of the same bankruptcy, 
Marsh & Co., the banking firm of which 
Fauntleroy was a member, had been em- 
ployed by the trustees of stock, standing 
in their names on the books of the Bank 
of England, to receive the dividends 
thereon. In the books of Marsh & Co., 
accordingly, the amount of the dividends 
was regularly carried to the credit of their 
employers, and was by them drawn for and 
received. But it afterwards appeared that 
none of the above dividends had in jioint 
of fact been received by Mai.sh & Co. ; 
Fauntleroy having transferred and sold 
the stock by means of forged powers of 
attorney, and having caused the above 
entries to be made in the books of the 
firm in fraud of his copartners, the money 
never having been received by them. 
Upon the issuing of commissions against 



§ 104.] WHO ARK LIABLE AS PARTNERS AS TO THIRD PARTIES. 123 



sliip, with the knowledge of the other partners, the firm will be 
chargeable with the amount, and held as debtors to the trust 
therefor, (y) It is said in some cases that the firm will not be 
liable in such case, unless the other partners have knowledge of 
the trust and of this application of the trust funds, {z) But it has 
also been held, that if a member of a firm, holding funds as an 
agent of a third party, puts that money into the business of the 
firm, the firm is liable whether the other partners knew that the 
money was so held or not. {zz) How far the knowledge and con- 
sent of the other partners is necessary to make them liable is not 
distinctly settled on the authorities. 

[The true principle seems to be recognized in the case of 
Guillou V. Peterson.^ There a partner lent to his firm securities 
which he held in trust, and the firm used them. It was held that 

Marsh & Co., a case being sent to the 
Exchequer to try the ([uestion whether 
the bankru])ts were indebted to the trus- 
tees, and if so in how much, it was held, 
that, at the date of the commissions, the 
bankrupts were not indebted to the trus- 
tees for the balance of the dividends ap- 
pearing by the books to have been received. 
But see Hume v. Bolland, Ryan & ^L 371; 
also Keating v. Marsh, supra, subseijuently 
decided in the House of Lords, in Sadler 
V. Lee, 6 Beav. 324. 

(y) Ex parte Watson, 2 Ves. & B. 414; 
Smith V. .Jameson, 6 T. R. 601 ; Board- 
man V. Mosman, 1 Bro. C. C. 68 ; Jarjues 
V. Marquand, 6 Cow. 497 ; Hutchinson v. 
Smith, 7 Paige, 26 ; Richardson v. French, 
4 Met. 577. [In re Jordan, 2 F. R. 319 ; 
Rau V. Small, 144 Pa. 304, 22 Atl. 740.] 

(?) E.v parte Heaton, Buck, 386 ; Ex 
2mrte Apsey, 3 Bro. C. C. 265 ; Guillou v. 
Peterson, 9 Phila. 225 ; Douncei'. Parsons, 
45 N. Y. 180. But see Richardson v. 
French, 4 Met. 577 ; Whitaker v. Brown, 
16 Wend. 509 ; Freeman v. Fairlie, 3 
]\Ieri. 44. In tliis last case, it seems to be 
held, that, if the other partners merely 
jiermit one partner to mix his accounts as 
executor with those of the firm, the part- 
ners may, without proof of further knowl- 
eilge on their part, be compelled to produce 
those accounts to the cestui que trust. 
And, in the following case, the fact, that, 
during the continuation in a firm of trust 
funds by a breach of trust on the part of 
some of the partners, other partners en- 



tered and retired from the fiim, seems to 
have ex(!mpted the latter from liability for 
the bleach of trust of their copartners to 
which they were privy. A., a partner in 
a house of agency in India, died, having by 
his will directed his estate to be called in, 
and invested on certain trusts, and ap- 
pointed two of his copartners his executors. 
Tiiey, however, suffered his share in the 
partnership to lemain in the liouse. After 
A.'s death, B. and C. were admitted as 
partners, and they knew that A.'s share 
was remaining in the house, and that it 
was subject to the trusts of his will. They 
afterwards retired, and other partners 
were admitted. The house ultimately 
failed. It was held, that B. and C. were 
not responsible for the breach of trust com- 
mitted by their copartners, the executors. 
Twyford r. Trail, 7 Sim. 92. Where trust 
money is put into trade without authority, 
the cestui que trust may generally elect to 
take from the trustees either a share of the 
profits, for the period of the breach, or 
interest for that time. There may, how- 
ever, be circumstances in which the cestiii 
que trust will have a right to divide the 
period, and to claim interest for one part 
and a share of the profits for another. 
Heathcote v. Hulme, 1 Jac. & W. 722 ; 
Docker v. Somes, 2 Mylne & K. 656. See 
Clayton's Case, 1 ]\Ieri. 572 : Hankej' v. 
Garrett, 1 Ves. 236. 

(") Floyd V. Wallace, 31 Ga. 688 ; 
[Cunningham v. Woodbridge, 76 Ga. 302.] 
And see Harper v. Lamping, 33 Cal. 641. 



1 89 Pa. 163. 



124 



THE LAW OF PARTNERSHIP. 



[CH. VI. 



all the partners were liable for the value of the securities, even if 
they had no knowledge of the trust. It was admitted that where 
a partner lent money to the firm, the iimocent partners were not 
liable to the true owner, if the partner had misappropriated it ; 
but in this case the securities had been used by the firm after it 
had received them, and this use gave cestui que trust a claim 
against the firm.] 

§ 105. Instances of Tort of Partner. — A partnership to whom 
goods were consigned for sale was held liable for the pledge 
thereof by a fraudulent partner ; (a) so was a firm of common 
carriers, one of whom lost property intrusted to them; (h) and 
partners in a publishing house, one of whom published a libel ; (e) 
and partners in the stage-coach business, one of whom caused an 
injury by negligent driving, (c?) 

So all the partners are liable for the tort of an agent, although 
that agent were appointed by one partner only, jjrovided he had 
autiiority to make the appointment, (e) So it would be in case of 
a breach of the revenue laws. (/) And a demand upon and a 
refusal by one partner is a conversion by the firm, which will 
sustain trover, (g) ^ 

(n) NinoU u. Glcnnie, 1 M. & S. 588. Cotton v. Bettner, 1 Rosw. 430. And 

(/)) Mitchell V. Tarbutt, 5 T. K. 649. the action may be brought against one or 

(c) Rex V. Almon, 5 Burr. 2686 ; Rex more or all the partners. Roberts v. 
V. Pearoe, Peake, 75 ; Rex v. Toi)ham, 4 Johnson, 58 N. Y. 613. 

T. R. 126 ; Rex v. Marsh, 2 B. & C. 723 ; (/) Attorney-General v. Strongforth, 

[Atlantic Glass Co. v. Paulk, 83 Ala. 404, 3 Bunb. 97 ; Attorney-General v. Burges, 

So. 800.] Bunb. 223 ; Attorney-General v. Siddon, 

(d) Moreton v. Hardern, 4 B. & C. 223. 1 Cr. & J. 220; United States v. Thomasou, 
(c) As where several persons are pro- 4 Biss. 99. 

priritors of, and partners in, a line of stage (g) Nishet i'. Patton, 4 Rawle, 120; 
coaches, but each stocks, and employs Hoi brook v. Wight, 24 Wend. 169 ; 
drivers for his own particular portion of Mitchell v. Williams, 4 Hill, 13. The 
the roatl ; all the partners are liable for managing jiartner, who conducted the 
injuries caused by the misconduct and business of a mine, refused to deliver up 
negligence of a person employed on any ore belonging to the former tenants of the 
portion of the line, thongli such wrong- mine, on the ground that it was partner- 
doer is hired and paid by only one partner, ship property, and there was subsequently 
Weylan v. Elkins, Holt, N. P. 227; 1 a notice, by the attorney for the defen- 



Stark. 272 ; Bostwick v. Champion, 11 
Wend, 571, 18 Wend. 175; Bayley, J., 
in Lnugher v. Pointer, 5 B. & C. 570. 
See also Dwight r. Brewster, 1 Pick. 50 ; 



dants, offering to deliver up tools that were 
in the same building with the ore ; but 
the notice was silent as to the ore. Held, 
evidence of conversion by all the partneis. 



Cobb V. Abbott, 14 Pick. 289 ; Stockton Lloyd v. Bellis, 37 Eng. L. & Eq. 545. 

See Com. Dig. tit. Trespass, eh. 1 ; NicoU 
V. Glennie, 1 M. & S. 588 ; Dore v. Wil- 



Frey, 4 Gill, 406 ; Hadfield v. Jameson, 
2 Munf. 53 ; Locke v. Stearns, 1 Met. 
560 ; Roberts v. Totten, 8 Ark. 609 ; kinson, 2 Stark. 287. 
National Exch. Co. i*. Drew, 2 Macq. 103 ; 

1 Where one partner makes false representations or commits fraud in the course of 
the firm business, all the partners are liable in tort. Strang v. Bradner, 114 U. S, 



§ 105.] WHO ARE LIABLE AS PARTNERS AS TO THIRD PARTIES. 125 

But even if the tort were cominitted by a partner in the per- 
formance of the partnership business, it might, from its nature or 
attendant circumstances, be shown to be only a several act. As 
if two physicians were in partnership, and one intentionally mal- 
treated a patient.^ So if two were partners as bankers and bill- 
brokers, and one of them discounted a note usuriously, this would 
be his own act only, or the act of the partnership, according to 
his authority, or the usage of the firm, or other circumstances. (A) 

It is to be observed that, although all the partners may be liable 
for a tort, and all may be sued jointly, they may also be sued 
severally , for, in law, all torts, however joint, and whether con- 
structive or actual, are several. It is, therefore, no answer for a 
defendant sued in tort to say that others were guilty with him. {i) 

(h) When one partner, without the put on their papers in causes in their office, 

knowledge of the other, borrows money at either of them is liable to the penalties of 

usurious interest, and executes a note in the act 37 Geo. 3 for practising as an attor- 

the name of the firm ; and afterwards pays ney without entering his certificate, though 

the.usurious interest, and the other part- it does not appear that one of them had 

ner, ignorant of the payment of the usury, any profit or advantage from the suit for 

executes his own note in lien of the other, suing in which the action in qid tarn is 

he cannot, when sued upon it, set up as a brought. 1 Wms. Saund. 291, d ; Rich v 

defence the payment of usury by his part- Pilkinton, Carth. 171 ; Sutton v. Clark, 6 

ner. Jones y. Jackson, 14 Ala. 186. See Taunt. 29; Edmondson v. Davis, 4 Esp. 

Hutchins v. Turner, 8 Humph. 415. 14 ; Attorney-General v. Burges, Bunb. 

(0 If an attorney is in partnership 223 ; Mitchell v. Tarbutt, 5 T. R. 649 ; 

with another, and they carry on their busi- Stockton v. Frey, 4 Gill, 406. As all the 

ness together, and their joint names are partners may be affected by the tort of 

555 ; Stanhope v. Swafford, 80 la. 45, 45 N. W. 403 ; Bradner v. Strang, 89 N. Y. 
299 ; Peckham Iron Co. v. Harper, 41 Oh. St. 100. And operates by way of estoppel on 
all the partners. In re Many, 17 X. B. R. 514; French v. Rowe, 15 la. 563 ; Cole- 
man V. Pearce, 26 Minn. 123 ; Henslee v. Cannefax, 49 Mo. 295 ; Griswold v. Haven, 
25 N. Y. 595. So all the partners are liable in tort where one partner makes illegal 
charges. Lockwood v. Bartlett, 130 N. Y. 340, 29 N. E. 257. Or in the course of 
business commits a trespass on chattels of another. McClure «. Hill, 36 Ark. 268 ; 
Robinson v. Goings, 63 Miss. 500. Or converts the property of another. In ?'eKetch- 
um, 1 F. R. 815. Or negligently injures property. Bucki v. Cone, 25 Fla. 1, 6 So. 160. 
Or injures another negligently. Haley v. Case, 142 Mass. 316, 7 N. E. 8/7 ; Hyrne 
V. Erwin, 23 S. C. 226. Or libels a customer. Woodling v. Knickerbocker, 31 Minn. 
268, 17 N. W. 387. Or a rival firm. Hauey MTg Co. v. Perkins, 78 Mich. 1, 43 N. 
AV. 1073. Or procures a wrongful attachment of property on a firm claim. Kuhn v. 
"Weil, 73 Mo. 213. Or institutes a malicious prosecution. Mcllroy v. Adams, 32 Ark. 
315. It is however held in Rosenkrans i-. Barker, 115 111. 331, 3 X. E. 93, that such a 
wilful lort as the malicious prosecution of a firm debtor is an individual act of the part- 
ner who institutes it, and the other members of the firm are not lial>le for it. In 
order to charge the firm the tort must be shown affirmatively to have been committed 
in the course of the business. So in an action of trover for buying goods from a thief, 
the true owner in order to charge a firm must prove that they were bought for the firm, 
not for the individual partner. Paden v. Belleiiger, 87 Ala. 575, 6 So, 351. 

^ But the negligent act of one of a firm of physicians, in the course of the business, has 
been held to render the other members of the firm liable. Hyrne v. Erwin, 23 S. C. 226. 



126 



THE LAW OF PARTNERSHIP. 



[CH. 



VI. 



[Where an innocent partner is compelled after dissolution, to 
satisfy a judgment obtained for the tort of his co-partner, he may 
maintain an action for compensation against the actual wrong- 
doer,^ since the parties are not really joint wrong-doers between 
whom no contribution can be claimed.] 



one, so a release to one of all liability in 
respect of the tort will operate as a release 
ami discharge of all. Co. Litt. 232, a ; 
Bac. Abridg. Release (G) ; Com. Dig. 
Release, B. 4; id. Pleader, 3 M. 12; 
Kiffiu I'. "Willis, 4 Mod. 379 ; Williamson 
V. AlcGiuiiis, 11 B. Moil. 74. Case is the 
j)roiier action against partners for injuries 
caused by the negligence of their servant ; 
and, if the damage be effected by laches 
simply, it will lie against them, even 
though one partner were present, per- 
sonally, and acted in that which occa- 
sioned the daniiige. So, where one partner 
is a wilful wrong-doer, if under the circum- 



stances any action is sustainable against 
his copartners, case is still the proper rem- 
edy. But, as against the malicious part- 
ners solely, trespass is the proper form of 
action. Mitchell v. Tarhutt, 5 T. R. 649 ; 
Morley v. Gaisford, 2 H. Bl. 442 ; Huggett 
V. Montgomery, 5 B. «& P. 446 ; I.eame v. 
Bray, 3 East, 593 ; Ogle v. Barnes, 8 T. 
R. 188 ; Rogers v. Inibleton, 5 B. & P. 
117 ; Moreton v. Hardern, 4 B. & C. 223 ; 
Whiteman v. Smith, 12 Rich. L. 595. 
[Since the partners are severally liable, 
the innocent partner may be sued without 
joining the other. Mode t;. Peuland, 93 
N. C. 292.] 



1 Smith V. Ayrault, 71 Mich. 475, 39 N. W. 724. 



§ 106.] RIGHTS AND DUTIES Oi lARrXERS. 127 



CHAPTER VII. 

OF THE RIGHTS AND DUTIES OF PARTNERS BETWEEN THEMSELVES. 

SECTION I. 
RIGHTS AND POWERS OF A PARTNER. 

§ 10(3. Right of Choice as to a Partner. — No One among the 
rights of [)artuer.s is more certain, or leads to more important 
consequences, tiian that to which we have already referred as 
implied by the phrase dilectus personaruni. Every partnership 
must be, in its beginning, voluntary, and the result of the choice 
and wish of those who become partners.^ Precisely so, as to 
admission of new partliers, it must continue to be. (a) Hence, 
whatever rights a partner may have of assigning or otlierwise 
disposing of his share of the stock or profits ( a subject to be 
presently considered), his character or relation of partner cannot 
be assigned. (6) And if he does assign it, and the other partners 

{a) The civilians pushed the priueiple (h) R;i}-inou(rs Case, 2 Rose, 255 ; 

of dilectus pcrsunarum to a great, and, as Kingman v. Spurr, 7 Pick. 235 ; Gilmore 

Pothier thinks, to an unreasonable extent ; v. Black, 11 Me. 488; Moddewell v. 

for with them, even a sti[>ulation between Keever, 8 W. & S. 63 ; Cowles v. Garrett, 

partners, that heirs or executors should 30 Ala. 341 ; Ketcham v. ( 'lark, 6 Johns, 

succeed to the relation of partner, was 144 ; Murray v. Bogert, 14 Johns. 318. 

deemed to be void. Domat, lib. i. tit. 8, In Marquand v. Xew Yoik Manuf. Co., 17 

§ 2 ; Pothier, Traite du contrat de societe, Johns. 525, Fitch assigiieil his interest in 

ch. 8, § 3 ; Crawshay v, Maule, 1 Swanst. a paitnership, by the articles of which it 

509, note. The doctrine of the English was provided that it should continue until 

and American Law is otherwise, and stipu- two of the partners should demand a dis- 

lations for the admission of such persons solution. The other partners desired the 

into a firm upon the decease of a partner partnership to go on notwithstanding the 

are frequent, and are always, as far as assignment. But, per Woodworth, J. : 

possilile, enforced by the courts. See " It is well settled in England, that an act 

Wrexham v. Hudleston, 1 Swanst. 514; of bankru[itcy is a dissolution of ])artner- 

Balmain v. Shore, 9 Ves. 500 ; War- ship ; this is by reason of the assignment, 

ner v. Cunningham, 3 Dow. 76 ; Gratz which severs the interest of the bankrupt, 

V. Bayard, 11 S. & R. 41; Scholefield by o])eration of law. An assignment made 

V. Eichelberger, 7 Pet. 586 ; Downs v. by the party himself, under circumstances 

Collins, 6 Hare, 418; Page v. Cox, 10 like the present, produces the same result : 

Hare, 163. See Reynolds v. Hicks, 19 Ind. in both cases, they give rise to a state of 

113 ; Buckingham v. Hanna, 20 Ind. 110. things altogether incompatible with the 

^ Where a partner grants a part or the whole of his profits to a third person, the 
latter does not tliereby become a partner. He cannot be made a partner without the 



128 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



receive the assignee among them and into the partnershi}), the new 
partner becomes one, altogether by their reception and his agree- 
ment with them, and in no degree by the assignment or transfer 
by him who has ceased to be a partner, (c) In an English case, a 



prosecution of a {)ai'tnership concern, com- 
jiienced and [ireviously conducted by the 
bankrupt and his former copartners. It is 
l)eifectly clear that a new partner cannot 
be admitted without consent. This, ex vi 
termini, implies that even consent would 
be nugatory, unless the assignee elected to 
become a partner ; when he does not so 
elect, but (as in the present case) insists 
on a div'ision of the property, the demand, 
according to acknowledged general prin- 
ciples, cannot be denied." Mathewson v. 
Clark, (J How. 122 ; Putnam v. Wise, 1 
Hill, 238 ; Channel v. Fassitt, 16 Ohio, 
166 ; Mason v. Connell, 1 Whart. 381 ; 
Morton's Appeal, 13 Pa. 67 ; Bray v. 
Fromont, 6 ]\ladd. 5. In Goddard i'. 
Hodges, 1 C. & M. 33, the plaintiff was 
the solicitor of a bridge company, and on 
that account, not desiring to appear as the 
owner of shares in a company, had ino- 
cured one Fall to be the nominal stock- 
holder of a certain number of shares, the 
])laintiff, however, being the real owner, 
making the deposits, and paying all other 
expense on the shares. In an action to 
recover compensation for professional ser- 



vices, the i)laiutiff cited Bray v. Fromont, 
supra; and contended that, as between 
himself and the bridge company, he was 
not a partner, since there was no consent 
nor agreement of the company to receive 
him as such. But the court held other- 
wise, and a non-suit was entered. See 
Bradley v. Harkness, 26 Cal. 76. 

(c) The effect of an assignment by a 
partner of his interest in a cojiartnership 
is to give the assignee a right to insist 
upon an account of the joint concern, and 
to claim whatever his assignor would be 
entitled to upon a settlement of accounts, 
upon satisfaction of the claims of the 
otlier partners. NicoU v. Mumford, 4 
Jolins. Ch. 522 ; Rodriguez v. Heffernan, 
5 Johns. Ch. 417 ; Marquand v. New 
York Manuf. Co., 17 Johns. 525 ; King- 
man 17. Spurr, 7 Pick. 235 ; Bray v. Fro- 
mont, 6 Madd. 5 ; Mathewson v. Clark, 6 
How. 122 ; Moddewell v. Keever, 8 AV. & 
S. 63. In this last case it was held, that 
an acquittance of a partnership debt, 
given by the assignee of one partner's 
share, could not have the effect of reliev- 
ing the debtor from liabilit}' to the firm 



consent of the other partners. Ex parte Barrow, 2 Rose, 252 ; Brown v. De Tastet, Jac. 
284 ; Frost v. Moulton, 21 Beav. 596 ; London Assurance Corp. v. Drennen, 116 U. S. 
46] ; Bybee v. Hawkett, 12 F. R. 649 ; Meyer v. Krohn, 114 111. 574, 2 N. E. 495 ; 
Revnolds v. Hicks, 19 Ind. 113 ; Burnett v. Snyder, 76 N. Y. 344, 81 N. Y. 550 ; 
Rockafellow r. Miller, 107 N. Y. 507, 14 N. E. 433 ; Setzer v. Beale, 19 W. Va. 274 ; 
Riedeburg v. St^hmitt, 71 Wis. 644, 38 N. W. 336. But it is otherwise held in Mas- 
sachusetts, Baring v. Crafts, 9 Met. 380 ; Fitch v. Harrington, 13 Gray, 468. 

For the same reason the purchaser of the interest of a deceased partner does not 
become a partner. Noonan r. Nuuan, 76 Cal. 44, 18 Pac. 98. And where the interest 
of a partner is sold on execution, the purchaser cannot insist upon being accepted as a 
partner. Carter v. Roland, 53 Tex. 540. 

The name "sub-partner " is sometimes apjdied to the assignee of an interest in a 
partner's profits. Nirdlinger v. Bernheimer, 133 N. Y. 45, 30 N. E. 561. The 
term is however misleading, for he is a partner neither with the firm nor with his 
assignor. 

Since one partner cannot admit a new member to a firm, his representations in the 
course of an attempt so to do cannot bind the firm. Thus where a partner agreed with 
a stranger that if the latter should buy out another partner he would get a third interest 
in the business free from all liens, this did not bind the firm. Love v. Payne, 73 
Ind. 80. 



§ 107.] RIGHTS AND DUTIES OF PARTNERS. 129 

person entering into business was guaranteed to the firm np to a 
certain amount by liis father, and in consideration thereof con- 
tracted to pay to his father a certain sum out of the profits. 
Afterwards marrying, he made a marriage settlement, by which 
he transferred all the jH'ofits and earnings of the business to his 
father and another, in trust, first to secure the father's annuity, 
and then on other trusts. It was held by the Court of Common 
Pleas that the father became a partner in the business and liable 
for the debts. But the judgment was reversed in the Exchequer 
Chamber, (cc) 

So if a partner bequeaths his interest in a firm to some one, 
this will not make the legatee a partner ; ((7) nor will the bequest 
have this effect although the legacy is expressly for the purpose 
of making him a partner, and is said to be a legacy of all the 
rights, etc., of a partner; for this character of partner is not trans- 
ferable. But one who represents the interest of a former partner, 
if received by the other partners and treated as a partner, becomes 
a partner under the origmal articles, {dd} Nor is the dileetus 
personarum a right of the old partners only. It belongs just as 
much to the new partner. No act of any others can, of itself, 
make him a partner. He must himself give his consent, and 
enter into the firm by his own act. If a transfer of a partner's 
interests and rights were made with an intent on the part of the 
transferrer that the transferee should thereby be made a partner, 
he would not become one as to the others, without their and his 
acquiescence. (^) 

§ 107. Provisions in Articles for Transfer of Share. — It is per- 
haps possil)le that the consent of the former partners may be 
given beforehand, and the consent of the transferee implied, by 

for the same debt. Ex parte Barrow, 2 (d) Nor are the executors of a deceased 

Rose, 2.52 ; Brown v. De Tastet, Jac. 284 ; partner, nor the assignees of a bankrupt 

2 Bell Coinm. 636. See Newland v. Tale, one, partners with the other member of 

3 Ired. Eq. 226 ; Cowles v. Garrett, 30 the original firm. They are simply en- 
Ala. 341. The transferee of a portion of titled to an account. Pearce v. Chaniber- 
a copartner's interest has a debt which he lin, 2 Ves. 33 ; Wilson v. Greenwood, 1 
may prove against the transferrer's estate. Swanst. 482 ; Fox v. Hanbury, Cowp. 
Ex parte Dodgson, Mont. & M'A. 445. 445; Hague v. Rolleston, 4 Burr. 2177; 
But the assignee of a partner's interest Ex parte Williams, 11 Ves. 5 ; Griswold 
cannot withdraw his share of the joint v. Waddington, 15 Johns. 82 ; Manjuand 
effects. They must remain in the posses- v. New York Manuf. Co., 17 Johns. 535 ; 
sion of the continuing i>artner, for the Kingman r. Spurr, 7 Pick. 238. 
purpose of winding up the affairs of the (dd) Mealier v. Cox, 37 Ala. 201. 
partnership, which has been dissolved by (e) See Mar^uand r. New York Manuf. 
the assignment. Horton's Ajipeal, 13 Pa. Co., 17 Johns. 529, 535, and other cases 
67 ; Meaher v. Cox, 37 Ala. 201. cited in preceding notes. 

{r.c) Bullen v. Sharp, 18 C. B. N. .s. 
614; L. R. 1 C. P. 86. 

9 



130 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



the reception of the things transferred. If, for example, a joint 
stock company, which is a kind of partnership, provided by its 
rules that the shares should be regarded and treated as transfer- 
able, and as a kind of scrip ; that each share was such an aliquot 
part of the whole, or represented a certain amount of money, and 
one man might hold a number of them ; and if it was farther 
provided that a sale of a share, acknowledged before the clerk, 
and recorded, with a delivery of the former certificate and the 
issue of a new one, would make the holder of the new certificate 
one of the company ; in such case the transferee becomes at once 
a stockholder, which in this case would mean a partner, by the 
completion of the transfer according to the rules of the com- 
pany. (/) And it is possible, also, that the articles of a private 



(/) This would seem to be a legitimate 
conclusion from the opinion of the court 
in Fox V. Clifton, 9 Biiig. 115, 6 Bing. 
776. There several persons were sued a.s 
partners in a distillery company. It was 
in evidence that, such a company being in 
process of formation, upon payment of a 
deposit, scrip receipts were issued to the 
subscribers, which were to be surrendered 
for certificates of shares, when the part- 
nership deed was prepared and signed ; 
that the scrip of the company was openly 
sold in the market ; the persons produc- 
ing that scrip, and paying the instalments 
due, were, without further inquiry, per- 
mitted to sign the company's deed as 
partners ; and that Levi, one of the de- 
fendants, had, before the contract was 
made upon which the present suit was 
brought, sold his scrip. C. J. Tindal : 
" The present case appears not to be gov- 
erned by reference to the rules which 
restrain partners from parting with their 
shares in ordinary cases, without each 
other's consent ; for, in this case, the 
power of transferring the scrip to any one 
cannot but have formed a part of the 
known original design." Aft-er adding that 
at the time the contract was entered into 
with the jilaintiff, Levi was not and could 
not be a partner; "On the other hand, 
the man who had purchased his scrip, if 
he was willing to pay up the second in- 
stalment, would have been entitled and 
allowed to receive a certificate of his 
share, and to execute the deed without 
difficulty." But where, as supposed in 



the text, the articles of an association 
prescribe a particular method of transfer- 
ring shares, that mode must be strictly 
followed ; for the formalities of transfer 
are the terms or conditions upon which 
the members of the company give their 
consent to the admission of a new partner. 
Ness V. Angas, 3 Exch. 805, 814 ; Dodg- 
son V. Bell, 5 Exch. 967 ; Kingman v. 
Spun-, 7 Pick. 235 ■ Cochran v. Perry, 8 
W. & S. 262. In Ex parte Wood, Keene's 
Executors' Case, De G. JI. & G. 272, a 
joint-stock company may, by long acquies- 
cence in the neglect of its directors to 
carry out one or more of its regulations 
respecting the transfer of shares, and the 
admission of new shareholders, be pre- 
cluded from taking advantage of such in- 
formality in the transfer of shares ; and, 
further, that a shareholder, thus irregu- 
larly introduced into a coin])any, if he has 
become de facto a shareholder, is debarred 
from raising an objection of form against 
the company, so as to relieve himself from 
the obligations of a shareholder. Bargate 
V. Shortridge, 5 H. L. C. 297. And 
though, by articles of copartnership, it is 
provided that any partner may assign his 
share of the .stock by a certificate in writ- 
ing, which, when lodged with the clerk 
of the company, shall entitle the assignee 
to all the ]irivileges, and subject him to 
all the liabilities, of an original partner, 
an assignment without such certificate 
will, nevertheless, transfer the property. 
Alvord V. Smith, 5 Pick. 232. 



108.] 



RIGHTS AND DUTIES OP PARTNERS. 



131 



partnership might contain similar provisions, with a system of 
transfer to carry them into effect. But it remains true, that the 
consent and acquiescence of all the members of a partnership are 
necessary to its becoming a partnership, however or whenever 
this consent and acquiescence take place, or may be proved, 
implied, or inferred.^ 

§ 108. Right of assigning or transferring Property. — The right of 
every partner to sell, assign, or transfer, any part or the whole of 
the partnership property, in the way of the regular business of the 
partnership, is absolute and unquestioned, (ff) There is au 
exception to this rule in reference to the real estate of a partner- 
ship, (/^) but none as to the personal property. Suppose a part- 
nership dealt in buying and selling cotton, and all their stock 
consisted in five hundred bales stored in New York ; there is no 
more doubt that either one of the partners might sell, and give 
good title to the whole, than that he could do so with a single 
bale. (^) This, however, must be done in the regular course of 



(ff) For an interesting case on the 
question, If one acting as a partner sells, 
without the consent of his copartner, 
what amounts to a ratification of the sale? 
see Cheeseman v. Sturges, 9 Bosw. 246. 

(/(/) See post, § 277. 

{(/) The absolute jus disponendi of 
each partner over the effects of the part- 
nership is very early asserted in Lambert's 
Case, Go<lb. 244. See Barton v. Williams, 
5 B. & Aid. 405, per Best, J.; Lyies v. 
Styles, 2 Wash. C. C. 224 ; Pearpoint v. 
Graham, 4 Wash. C. C. 2-34 ; Law v. Ford, 
2 Paige, 310; Winship v. Bank of the Unit- 
ed States, 5 Pet. 561 ; Lamb v. Durant, 
12 JIass. 54 ; Pierson v. Hooker, 3 Johns. 
70, per Kent, C. J. ; M'Cullough v. Som- 
merville, 8 Leigh, 430 ; Tapley v. Butter- 
field, 1 Met. 518 ; Whitton v. Hulbert, 
Freeman, Ch. 231 ; Forkner v. Stuart, 6 
Gratt. 197 ; Fronime v. Jones, 13 Iowa, 
474. In Anderson v. Tompkins, 1 Brock. 
456, Chief Justice Marshall affirms this 
jiower in the most positive terms. Bos- 
well V. Green, 1 Dutch. 390; [Ellis v. 
Allen, 80 Ala. 515] ; McGregor v. Ellis, 2 



Dis. (Supr. Ct. Ciii.) 286. A partner's 
jus disjwnendi extends to choses in action 
as well as those in possession. See Swan 
V. Steele, 7 East, 210 ; Harrison v. Sterry, 
5 Cranch, 289, 300 ; Quiner v. Mar- 
blehead Social Ins. Co., 10 Mass. 482 ; 
Mills V. Barber, 4 Day, 428 ; Halstead v. 
Shepard, 23 Ala. 558, 573. [Fulton v. 
Loughlin, 118 Ind. 286, 20 N. E. 796; 
Clarke v. Hogeman, 13 W. Va. 718 ; see 
KuU V. Thompson, 38 Mich. 685. So a 
partner may assign a patent right belong- 
ing to the firm. Christ v. Firestone, (Pa.) 
11 Atl. 395. So he may indorse commer- 
cial paper. Fulton i'. Loughlin, 118 Ind. 
286, 20 N. E. 796 ; Walker r. Kee, 14 S. C. 
142, 16 8. C. 76. Or assign a chattel mort- 
gage Most-s V. Hatfield, 27 S. C 324, 3 S. E. 
538.] One ]>artner may bind his firm by 
assenting to the transfer of a debt on ac- 
count, due from the firm, from one banker 
to another. Beale v. Caddick, 2 H. & X. 
326. This right is in no way affected by 
a secret act of bankruptcy previously com- 
mitted by another partner. Fox v. Hau- 
burj^ Cowp. 445. Nor by the fact that 



^ A voluntary association with transferable and heritable shares is valid at common 
law. Ricker v. American Loan & Trust Co., 140 Mass. 346, 5 N. E. 284 ; McFadden 
V. Leeka, 48 Oh. St. 513, 28 N. E. 874 ; McN.dsh v. Hulless Oat Co., 57 Vt. 316. 
Some of its aflfairs are frequently regulated by statute. Davison v. Holden, 55 Conn- 
103, 10 Atl. 575 ; People v. Wemple, 117 X. Y. 136, 22 N. E. 1046. See post, ch. 18. 



132 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



the business of the firm; for outside of this he has no such 
power. (7i) If he docs this in fraud of tlic other partners, — that 
is, if he sells tlie wliole, or any part, intending to run off with the 
proceeds, and does run off with them, — this has no effect on the 
title of the purchaser, unless he has some knowledge of the fraud, 
or would have had some knowledge of it but for a negligence so 
gross as would tend to imply fraud, (i) ^ 

§109. Eight to pledge or mortgage. — If, however, a })artncr 
undertakes not to sell the goods or property of the partnership, 
but to assign them, by way of pledge or mortgage to secure the 
debts of the firm, or in any unusual way, he has not necessarily 
any power to do this. Neither do we consider it certain that he 
has no power to do it. On the one hand, such a transaction 
seldom or never belongs to the regular business of a firm, (j) If 



the proceeds ai'ising from a transfer of 
partnership eflects have not come to the 
use nor to the advantage of the firm. Ar- 
nold I'. Brown, 24 Pick. 89. Xor, in point 
of principle, is there any ditference be- 
tween so-called general partnerships and 
those for a special adventure as to the 
power possessed by each partner of dis- 
posing of the joint proy)erty. Livingston 
V. Roosevelt, 4 Johns. 251, 205, 277. See 
the lang mge of Best, J-, in Barton v. 
■Williams, .T B. & Aid. 405. [See on this 
subject Ames, Cas. on Part., 572 n.]. 

\h) 2 Chan. Cases, temp. Car. 2, 32, 
38. Anon., 16 Vin. Abr. 242. See Liv- 
ingston V. Roosevelt, 4 Johns. 266, 267, 
278 ; Walden v. Sherburne, 15 Johns. 
422; [AVilcox v. Jackson, 7 Coh 521.] See 
the remarks of Marshall, C. J., in Ander- 
son V. Tompkins, 1 Brock. 460 ; Kogers v. 
Batchelor, 12 Pet. 221. See farther, as 
to this point, section 3d, subsection 2d, of 
this chapter, on the general extent of the 
power of a partner ; and see Wells v. 
March, 30 jST. Y. 344 ; Coope v. Bowles, 
42 Barb. 87; Palmer v. Myers, 43 Barb. 
509. 



{)) So it was said by Marshall, C. J., 
in Auderson v. Tompkins, 1 Brock. 460. 
An assignment by one partner of jiartner- 
ship assets to another, to be applied to the 
individual purposes of the latter, is a 
breach of trust in both assignor and as- 
signee, and void as to the firm. Wood v. 
Shepherd, 2 Patt. & Heath, 442 ; Rod- 
riguez V. Hefl"ernan, 5 Johns. Ch. 417 ; 
Halstead v. Shepard, 23 Ala. 558 ; Clay- 
ton V. Hardy, 27 Mo. 536 ; Croughton v. 
Forrest, 17 Mo. 131. In this last case, 
where one partner fraudulently disposed 
of all the partnership stock and effects, 
the vendees, who had received the prop- 
erty with knowledge of the fraud or with- 
out consideration, were held to be trustees 
thereof for the benefit of the firm. See 
Kirkpatrick v. Turnbull, Addison, 259 ; 
Rogers v. Batchelor, 12 Pet. 221. [Ellis 
V. Allen, 80 Ala. 515 {scmhk) ] 

(j) In Metcalf v. Royal Exch. Ass. Co., 
Barnard. 343, it seems to be implied that 
a pledge of partnership effects, in the ex- 
ercise of a power which belongs to the 
general course of business of a trading 
partnership, is valid. See the remarks of 



^ It would seem that a partner who has power to sell part of the firm chattels, — 
that is, the chattels kept for sale, has power to sell them all for cash. Ellis v. Allen, 
80 Ala. 515, 2 So. 676 ; Crites v. Wilkinson, 65 Cal. 559, 4 Pac. 567 ; Coakley v. 
Weil, 47 Md. 277 ; Schneider v. Sansom, 62 Tex. 201. But it seems that a sale not 
merely of the goods kept for sale but of all the assets of the business is not within the 
partnership powers, and may be avoided by the other partner. Drake v. Thyng, 37 
Ark. 228 ; Wilcox v. Jackson, 7 Col. 521. Such a sale would of course transfer all the 
interest of the partner who made the sale. Carrie v. Cloverdale Banking & Commer- 
cial Co., 90 Cal. 84, 27 Pac. 58. 



§ 110.] 



RIGHTS AND DUTIES OF PARTNERS, 



133 



it does, of course he has this power. If it does not, it may still be 
so far connected with, or so naturally arise out of or promote, their 
regular business, that if the transaction be an honest one, without 
bad faith on the part of any party, we should say it was a valid 
transaction, which the law would enforce. Perhaps a consider- 
ation of the authorities and of the reason of the case would lead 
to this difference between the selling and the assigning in pledge 
of partnership property by one partner. If the sale take place in 
the course of business, it would bind the other partners, as we 
have seen, though fraudulent as to them ; but an assignment in 
pledge or mortgage, not being in the way of business, would bind 
the other partners, if it were done in good faith for the advantage 
of the firm, and was reasonable in itself, but not otherwise. (^) 

§ 110. Right to assign for Benefit of Creditors. — One partner 
may, in good faith, assign a part of the propei'ty to pay or secure 



Shaw, C. J., in Tapley v. Butterfidd, 1 
Met. 515, where a mortgage by one j)art- 
ner of the whole stock iu trade of a part- 
nership, to secure a creditor, was held 
valid. Anderson v. Tompkins, 1 Brock. 
456 ; Deckard v. Case, 5 Watts, 22. See 
also ililton v. Mosher, 7 Met. 244; Brown- 
rigg V. Rae, 5 Exch. 489 ; Sweetzer v. 
Mead, 5 Mich. 107. In Ex parte Lloyd, 
1 Mont. & A. 494, it seems to have been 
considered that the peculiar circumstances 
of that case authorized one partner to bind 
his firm by an etpiitable mortgage. There, 
W., being the sole owner of certain free- 
hold premises, entered into partnership 
with 0., and W. & 0. thenceforth occupied 
the premises as cotton spinners, and erected 
a steam-engine, kc, for the purposes of their 
joint trade. The firm being indebted to 
their bankers, 0., in June, 1822, deposited 
with them the leases of certain leasehold 
premises, with a memorandum setting out 
a list of the title-deeds deposited, and con- 
cluding thus: "These papers are placed 
in the hands of Messrs. Jones, Lloyd, & 
Co., as security for what they may think fit 
to advance to 0. & W." In August, 1822, 
"W. also deposited with them a lease of a 
freehold piece of land, on which was situ- 
ated a mill and other buildings, with the 
following memorandum: " These deeds of, 
&c., are placed in the hands of Messrs. 
Lloyd & Co., as security for what they may 
think proper to advance to 0. & W., by 



W. The buildings alone are insured for 
upwards of 2, OOOZ. ; machinery, &c., 2,000Z. 
more." 0. k W. liaving become bankrupt, 
and the bankers petitioning to be declared 
equitable mortgagees of the premises, the 
court thought that, under the circum- 
stances, there was no difficulty in finding 
that the one partner had authority to 
pledge the property, in order to obtain an 
advance of money for partnership pur- 
poses ; and that W. might fairly be taken 
as mortgaging, for himself, his own free- 
hold interest in the land and buildings, 
and as agent for the firm, mortgaging the 
leasehold interest and the property of the 
firm in the machinery. 

(^•) In the three following cases, where 
partnership property was pledged without 
any fraud or collusion, or any knowledge 
on the part of the pledgee of the interest 
of the firm in the pledge, the contract was 
held to bind the copartnership. Raba v. 
Ryland, Gow, 132 ; Tupper v. Haythorne, 
Gow, 135, n.; Reid i;. Hollinshead, 4 B. & 
C. 867, s. c. 7 D. & R. 444. On the other 
hand, in Ex parte Copeland, 2 Mont. & A. 
177, s. c. 3 Dea. & Ch. 199, two of the 
judges strongly intimate their opinion that, 
if at the time of a pledge by one partner 
the pledgee is conusant of the joint inter- 
est of the other partners, such pledge will 
not be valid as against the other partners. 
See Ex parte Gellar, 1 Rose, 297 ; Snaith 
V. Burridge, 4 Taunt. 684. 



134 THE LAW OF PARTNERSHIP. [CH. VII. 

an existing debt, or a debt to be contracted. (Z) ^ [There is some 
doubt, however, whether he has power to assign the whole prop- 
erty in trust for all the creditors. His power to transfer firm 
property generally is within the scope of the firm business, since 
the object of the business is to dispose of such property. But the 
assignment of all the property in trust for creditors is necessarily 
outside the scope of the business, since it puts an end to the busi- 
ness. The better opinion therefore seems to be that in the 
ordinary case one partner has no power to assign all the assets in 
trust for creditors without the consent of the other partners.^ But 

It a])pears, from the above cases, that deliver specific portions of partnership 
there is no distinction between general property to a creditor of the firm in pay- 
partnerships and those for a particular ment of a debt ; that, inasmuch as it is in 
adventure, as to the power in each partner the power of one member of a firm to pay 
to pledge, mortgage, &i;., the partnership off a debt, he may pay it in a si)ecific cluit- 
effects. tel actually delivered to the creditor, as 

(/) See McClelland v. Renisen, 14 Abb. well as in money." Anderson v. Tomp- 

Prac. 332 ; Young v. Keighly, 15 Ves. kins, 1 Brock. 461 ; Hodges v. Harris, 

557 ; Mills v. Barber, 4 Day, 428 ; Fox v. 6 Pick. 360 ; Tapley v. Butterfield, 1 Met. 

Hanbury, Cowp. 445; Harrison v. Sterry, 518; Havens i". Hussey, 5 l'ai>;e, 31, 32; 

5 Cranch, 289 ; Dana v. Lull, 17 Vt. 390. Everet v. Strong, 5 Hill, 163, 7 Hill, 

In Deming v. Colt, 3 Sandf. 290, Oakley, 585 ; Kirby v. IngersoU, 1 Hare (Mich.), 

C. J., speaking of the law of New York, 172, s. c. 1 Doug. (Mich.) 477 ; CuUum v. 

says that it is settled in that State, "that Bloodgood, 15 Ala. 34 ; Boswell v. Green, 

one partner may, from time to time, witli- 1 Dutch. 390. See McNutt v. Strayhorn, 

out the as.sent of his copartner, assign and 39 Pa. 269. 

1 It is almost universally held that a partner has authority to pledge or mortgage 
part of the property to secure a firm debt. Gates i\ Bennett, 33 Ark. 475 ; Phillips v. 
Trowbridge Furniture Co., 86 Ga. 699, 13 S. K. 19; McCarthy;;. Seisler, 130 Ind. 63, 29 
N. E. 407 ; Citizens' Nat. Bank v. Johnson, 79 la. 290, 44 N. W. 551 ; Schwanck v. 
Davis, 25 Neb. 196, 41 N. W. 141 ; Hembree v. Blackburn, 16 Ore. 153, 19 Pac. 73 ; 
Woodniir V. King, 47 Wis. 261, 2 N. W. 452 ; Hage v. Campbell, 78 Wis. 572, 47 
N. W. 179. Contra, Osborne v. Barge, 29 F. R. 725. Since he may give such a mortgage, 
he may consent to its cancellation. Phillips v. Trowbridge Furniture Co., 86 Ga. 699, 
13 S. E. 19. It would seem tliat such a mortgage is good if it covers all the chattels of 
the firm. Letts-Fletcher Co. v. McMaster (la.), 49 N. W. 1035 ; and .see the cases cited 
suprn. But see Burbank v. Wiley, 79 N. C. 501. A partner has also authority to 
pass absolute title to partnership chattels in payment of a firm debt. Hanchett v. 
Gardner, 138 111. 571, 28 N. E. 788 ; Johnson v. Robinson, 68 Tex. 399, 4 S. W. 625. 
" We can conceive of no partnership, whether commercial or non-trading, which may 
not, in the line of the partnership business, incur debts. . . . We regard it as thor- 
oughly well-settled law that a partnership, or any one of its members, without express 
authority from his co-partners, may transfer a part of the partnership property in pay- 
ment of a debt of the firm, and this wholly regardless of the non-trading character of 
the concern." McClellan, J., in Ullman v. Myrick, 93 Ala. 532, 536, 8 So. 410. 

2 Pearpoint v. Graham, 4 Wash. C. C. 232 ; Adams v. Thornton, 82 Ala. 260, 3 So. 
20 ; Loeb V. Pierjyoint, 58 la. 469, 12 N. W. 544 ; Hunter v. Wayiiick, 67 la. 555, 25 
N. W. 776 ; Shattuck v. Chandler, 40 Ka.s. 516, 20 Pac. 2-25, Maughlin v. Tyler, 47 Md. 
545 ; Kirby v. IngersoU, 1 Doug. Mich. 477 ; Stein v. La Dow, 13 Minn. 412 ; Hughes 
V. Ellison, 5 Mo. 463 ; Einer v. Beste, 32 Mo. 240, 39 Mo. 69 ; Hook v. Stone, 34 



§ 111.] RIGHTS AND DUTIES OF PARTNERS. 135 

if the other partners are absent and cannot be come at to be con- 
sulted, one partner who is thus left in charge of the business may 
in an emergency make a general assignment.^] 

§ 111. Assignment by surviving Partner. — If a partner die, the 

Mo. 329 ; Steinhart v. Fyhiie, 5 Mont. 463, 6 Pac. 367 ; Hitchcock v. St. John, Hoff. 
Ch. 511; Haven.s v. Hu.ssey, 5 Paige, 30; Fisher v. Murray, 1 E. D. Smith, 341; 
Deniing v. Colt, 3 Sandf. 284 ; Hayes v Heyer, 3 Sandf. 293 ; Holland i'. Drake, 29 
Oh. St. 441; Daniels, Petitioner, 14 R. I. 500; Williams v. Roberts, 6 Cold. 493; 
Turner o. Dugla.ss, 77 Te.\. 619, 14 S. W. 221; Dana v. Lull, 17 Vt. 390 ; Coleman v. 
Darling, 66 Wis. 155, 28 N. W. 367. See Wilco.x v. Jackson, 7 Col. 521 ; Simmons 
V. Curtis, 41 Me. 373 ; Mabbett v. White, 12 N. Y. 442 ; Wetter v. Schlieper, 4 E. D. 
Smith, 707 ; McCuUough v. Somnierville, 8 Leigh, 415. There are a few decisions 
which uphold the power of a single partner to make a general assignment. Anderson 
V. Tompkins, 1 Brock. 461 (scmbk) ; Hennessy v. Western Bank, 6 W. & S. 300 ; 
Robinson v. Crowder, 4 McC. 519 ; Graves v. Hall, 32 Tex. 665 ; Gordon v. Cannon, 
18 Gratt. 387 ; Scruggs v. Burruss, 25 W. Va. 670. If one partner expressly objects 
the other certainly has no power to make a general assignment. Adams v. Thornton, 
82 Ala 260, 3 So. 20 ; Williams v. Roberts, 6 Cold. 493. If the other partners assent 
to an assignment or ratify it the assignment is valid, though made by a single partner. 
Osborne v. Barge, 29 F. R. 725 ; Adee v. Cornell, 93 N. Y. 572 ; Klumpp v. Gardner, 
114 N. Y. 153, 21 N. E. 99 ; Hooper v. Baillie, 118 N. Y. 413, 23 N. E. 569. Such 
assent must be made to appear affirmatively. Steinhart v. Fyhrie, 5 Mont. 463. If 
the assignment is without authority it of course conveys no property of the firm ; and 
though a ratification by the other partners generally makes it good from its date, 
those who acquire a lien on the property meanwhile, as, for instance, attaching firm 
creditors, may hold in spite of the ratification. Loeb v. Pierpoint, 58 la. 469, 12 
N. W. 544; Stein v. La Dow, 13 Minn. 412 ; Kittrell v. Blum, 77 Tex. 336, 14 S. W. 
69 ; Coleman v. Darling, 66 Wis. 155, 28 N. W. 367. But see Adee i;. Cornell, 93 
N. Y. 572. 

1 Harrison v. Sterry, 5 Cranch, 289 ; Andenson v. Tompkins, 1 Brock. 456 ; Loeb 
V. Pierpoint, 58 la. 469, 12 N. W. 544 ; Hunter v. Waynick, 67 la. 555, 25 X. W. 
776 ; Kirby v. IngersoU, 1 Doug. Mich. 477 ; Stein v. La Dow, 13 Minn. 412 ; Hol- 
land V. Drake, 29 Oh. St. 441 ; Deckard v. Case, 5 W'atts, 22 ; Daniels, Petitioner, 
14 R. I. 500 ; Robinson v. Ciowder, 4 McCord, 519 : Johnson i'. Robinson, 68 Tex. 
399, 4 S. W. 625 (scinhic) ; McCullough v. Somnierville, 8 Leigh, 415; Williams v. 
Gillespie, 30 W. Va. 586, 5 S. E. 210 ; First Nat. Bank r. Hackett, 61 Wis. 335, 21 
N. W. 280 ; Coleman v. Darling, 66 Wis. 155, 28 N. W. 367. In Dickinson v. Legare, 
1 De-saus. 537, the earliest case upon the subject, a contrary decision was made. But, in 
that in.stance, " the assignment, being made by a citizen of one of the United States 
during the existence of a war, to an alien enemy and in an enemy's country, was {)rob- 
ably void by the laws of war, so far at least as to prevent its being carried into eff'ect 
by any of the courts of this country." Per Chancellor Walworth, in Egberts v. Wood, 
3 Paige, 517, 524. And in effect the case is overruled by the subsequent case of Robin- 
sou V. Crowder, 4 McC. 519. See Kimball v. Hamilton Fire Ins. Co., 8 Bosw. 495. 

In New York, however, absence of one partner will not give power to the others to 
make a general assignment in trust for creditors. Robinson r. Gregory, 30 N. Y. 350 
(cited) ; Coope v. Bowles, 42 Barb. 87; Palmer v. Myer.s, 43 Barb. 509 (see earlier 
decisions, however, — Deming v. Colt, 3 Sandf. 291 ; Fisher v. Murray, 1 E. D. Smith, 
341 ; Robinson v. Mcintosh, 3 E. D. Smith, 221 ; Kemp v. Carnley, 3 Duer, 1). But 
if a partner absconds, the others may make such assignment. Palmer v. Myers, 43 
Barb. 509. 

It was held in Stein v. La Dow, 13 Minn. 412, that the mere temporary absence of 
one partner will not give the other power to assign in trust for creditors. 



136 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



surviving partners may undoubtedly a[)ply the effects of the part- 
nership to the payment of its debts, without consulting- at all the 
representatives of the deceased, (p) ^ 

§112. Assigumeiit of individual Share. — The power of each 
partner over his own share or intciest in the partnership pruji- 
erty stands upon an entirely different footing from his power over 
the partnershij) property generally. It is certain that no partner 
has any exclusive right to any one or more things of the jiartner- 
ship. {q) If, in the case supposed before, the partnership owning 



ip) Egberts v. Wood, 3 Paige, 517 ; 
Wilson t;. Soper, 13 11 Mou. 411 ; thougli, 
where there is more than one survivor, one 
of them cannot assign the whole interest in 
the partnership effects to trustees, for the 
benefit of preferred creditors, without the 
concurrence of the other. Egberts v. 
Wood, supra. The remaining partners 
have the same rights as against an assignee 
of all one partner's interest. Clark v. 
Wilson, 19 Pa. 414. As to whether, when 
one of the partners is dormant, a deed of as- 
signment of all the partnershij) pro]ierty, by 
the other partner or partners, for the benefit 
of creditors, is valid without being e.xecuted 
by liim, see Egberts n. Wood, supra ; Drake 
V, Rogers, 6 Mo. 317. Whether the gene- 
ral partners in a limited partnership may 
make a general assignment of the joint 
funds, witliout the consent of the special 
partner, was doubted in Mills v. Argall, 6 
Paige, 577. See)>os/,ch. 17- 

(q) Hence no general principle of the 
law of partnership is better settled than 
that nothing is to be considered the share 



of any one partner but his projiortion of 
the residue on the balancing of the |>artner- 
ship accounts. Accordingly, where a 
member of a copartnership sold and as- 
signed to another " all his interest iu 
and to the property, goods, wares, and 
merchandise, and debts belonging to the 
hrm,' it was held that a debt owing by 
himself to the firm did not pass by the 
assignment ; the interest of the assignor 
being only what remained over and above 
the amount of his indebtedness to the firm. 
Van Scoter v. Letl'erts, 11 Barb. 140. 
[Painter v. Painter, 68 Cal. 395, 9 Pac. 
450; Norman v. Hudleston, 64 111. 11; 
Over V Hetherington, 66 Ind. 365 ; 
Thompson v. Lowe, 111 Ind. 272, 12 
N. E. 476; Houk v. Walker, (Ind.) 30 
N. E. 1080 ; Wiggin v. Goodwin, 63 Me. 
389 ; Lambert v. Griffith, 50 Mich. 286, 
15 N. W. 458; Finley v. Fay, 17 Hun, 67.] 
See further Fox v. Hanbury, Covvp. 445 ; 
Smith V. I)e Silva, Cowp. 469 ; West v. 
Skip, 1 Ves. 239 ; Ex parte Ruffin, 6 Ves. 
119 ; Ex parte Williams, 11 Ves. 5 ; Taylor 



1 A surviving partner may pledge or mortgage the firm assets to secure firm 
debts. Bradford Commercial Banking Co. v. Cure, 31 Ch. D. 324 ; Bohler u. Tappan, 
1 F. R. 469; First Nat. Bank v. Parsons, 128 Ind. 147, 27 N. E. 486. Cuntra, 
Anderson v. Norton, 15 Lea, 14, on the ground that a surviving partner cannot 
give preference to a creditor. So a surviving partner may make a valid assignment 
for the benefit of firm creditors. Enier.son v. Senter, 118 U. S. 3; Shattuck v. Chand- 
ler, 40 Kas. 516, 20 Pac. 225 (scmble) ; Atchison v. Jones, (Ky.) 1 S. W. 406 ; Gable 
V. Williams, 59 Md. 46 (scmble) ; Riley v. Carter (Md.), 25 Atl. 667 ; Hanson ;;. Met- 
calf, 46 Minn. 25, 48 N. W. 441 ; Haynes v. Brooks, 116 N. Y. 487, 22 N. E. 1083 ; 
Farmers' Bank v. Ritter, (Pa.) 12 Atl. 659. According to the better view, such an 
assignment is good even if one creditor is preferred. Williams v. Whedon, 109 N. Y. 
333, 16 N. E. 365 ; Be.ste v. Burger, HON. Y. 644, 17 N. E. 734 (overruling Nelson 
t;. Tenney, 36 Hun, 327); Patton v. Leftwich, 86 Va. 421, 10 S. E. 686. And see Roach 
V. Brannon, 57 Miss. 490 ; Krueger v. Speith, 8 Mont. 482, 20 Pac. 664. Contra, Sals- 
bury V. Ellison, 7 Col. 167, 2 Pac. 906, 3 Pac. 485, on the ground that a surviving part- 
ner is a trustee for creditors. See^os^, § 345. 



§ 112.] 



RIGHTS AND DUTIES OF PARTNERS. 



137 



the cotton agreed not to sell it, no one partner could separate ten 
bales, and say to a customer, The firm will sell nothing; but I 
will take these as my own, and will sell them to you. Such a sale 
would pass no title whatever, (r) The proj)erty sold would be 
available for the debts of the partnership ; and so, perhaps, would 
any property into which it was converted, so long as that could 
be distinctly traced and identified, (s) 

Any partnership would probably consent that a partner might 
take a part of their goods on his own account, and would charge 
the same to him. But without such consent, express or implied, 
it is quite clear that he can appropriate nothing to himself. 
Every partner owns the whole partncrshij) property, subject to 
the equal ownership of every other partner ; and no one partner 
can make his own ownership of any part absolute, and relieve it 
from the encumbrance of the ownership of the others without 
their consent. Because each partner owns the property of the 



V. Fields, 4 Ves. 396, .559 ; Holdenien v. 
Sliackles, 8 B. & C. 612 ; Eddie v. David- 
son, 3 Doug. 650 ; Pierce v. Jackson, 6 
Mass. 243 ; Fisk v. Herrick, 6 Mass. 
271 ; Doner v. Stautfer, 1 Pen. & VV. 
198 ; Church v. Knox, 2 Conn. 514, 518 ; 
Con well V. Sandidge, 8 Dana, 278 ; Hodges 
V. Holenian, 1 Dana, 53; Pierce v. Tiernan, 
16 Ci. & J. 253 ; Commercial Bank v. 
Wilkins, 9 Me. 28 ; Murray v. Murra\', 
5 Johns. Ch. 70 ; Nicoll v. Mum- 
ford, 4 Johns. Ch. 522 ; Rodriguez v. 
Heffernan, 5 Johns. Ch. 428 ; Greene v. 
Greene, 1 Ohio, 251; Sumner y. Hampson, 
8 Ohio, 330 ; Dyer v. Clark, 5 Met. 575 ; 
Lingen v. Simpson. 1 Sim. k St. 603. We 
shall he obliged to consider this question 
of the interest of one partner in partner- 
ship property more in detail, when we 
treat of the remedies of third persons 
against partners, and of partners intc?- se. 
See post; §§ 179, 255. In Lovejoy v. 
Bowers, 11 N. H. 404, it was held that 
one partner cannot sell or mortgage an un- 
divided interest in a specific part ; the 
profierty belonging to the partnership. 
The property constitutes a fund or capital 
to carry on the business of the partnership, 
and to pay partnership creditors ; and the 
separate interest of each partner is an 
interest in the surplus. Morrison v. Blod- 
gett, S N. H. 231. 

(r) See Rogers v. Batchelor, 12 Pet. 
221. 



(s) Croft V. Pyke, 3 P. Wms. 180. lu 
West V. Skip, 1 Ves. 239, Lord Chancellor 
Hardwicke asserted the general principle, 
that the "partner's lien" (which is 
nothing but the right of the partnership 
to its own property) is not appropriated to 
the original stock alone, but attaches to 
whatever is substituted in its place. He 
said that a partnership lien " is not con- 
sidered as appropriated to the stock 
brought in, but to every thing coming 
in lieu duiing the continuance or after the 
determination of the partnership. As in 
Bucknal v. Roiston, Pre. Cli. 285, where a 
lien was held to be on those goods which 
were the produce of the original goods. 
So in Brown v. Heathcote, Michael. T. 
1749, it was held that it continued on what 
was the produce by way of barter and sale ; 
and that holds much more strongly in the 
case of a partnership trade which cannot 
otherwise be continued." The cases ot 
Skii> V. Harwood, 2 Swanst. 586, and of 
Ridgley v. Carey, 4 Har. & M'H. 167, 
come yet nearer to the proposition of the 
te.xt. Of course, however, this doctrine is 
not pushed to the extent of saying, that 
what at any time during the partnership 
has been part of the partnership eil'ects 
sliall in all future time remain part of the 
partnership effects, notwithstanding a bond 
fide transmutation. Ex parte Ruffin, 6 
Ves. 119. 



138 THE LAW OF PARTNERSHIP. [CH. VII. 

firm, it has been held that one of two partners cannot be guilty of 
burglary or larceny as to a house or propert}- owned by the 
firm, (ss) 

But although no partner owns absolutely any part of the prop- 
erty, he has his own interest in the whole ; which interest we 
have defined as an ownership of the whole, subject to the owner- 
siiip of the other partners. And the question has repeatedly 
arisen, whether he can sell and transfer this interest. The 
answer, in general, is in the affirmative. (0 But a court of equity 
will not foreclose a mortgage made by a partner of his interest in 
the partnership property to secure his individual debt, if the prop- 
erty of the partnership will not more than pay the debts of the 
partnership, {tt) 

It may be added, that while partners may own the partnership 
property in whatever proportions they choose, they arc presumed, 
in the absence of evidence, to have equal interests. (^tW) 

This power of sale must, however, be subject to many qualifica- 
tions. It is plain, from what was said in the preceding section, 
that he cannot make his transferee a partner in his place, without 
the consent of the others. But, if he can transfer his interest at 
all, he must be able to give to the transferee some of his powers 
as partner, in order to make the transfer available. Thus, he 
must give to him the i)Ower of requiring an account and settle- 
ment of the concern, or, at least, some just and adequate 
ascertainment and setting off in severalty of his share, (w) 

For this purpose, the transferee must go into equity ; for it is 
not easy to see how he could, by means of trover or replevin or 
case or assumpsit, find a full and sufficient remedy. But, if he 
goes into equity, he must be prepared to do equity, and to submit 
to the application of the principles of equity to his case. If, there- 
fore, tiie articles expressly forbid such transfer ; or if they provide 
for a continuance for a time certain, or by any other provisions 
indirectly negative the right of transfer, or affix to it, as in the 
case of joint-stock companies, certain conditions and requirements, 
which have been disregarded ; or if the nature of the business, 

(ss) AlMe V. Wright, 17 Ohio, 238. Bowden, 8 Rich. 9 ; Armstrong v. Fahne- 

{t) See Raymond's Ca.se, 2 Rose, 255 ; stock, 19 Md. 59 ; Norris v. Vernon, 19 

Kingman v. Spurr, 7 Pick. 255 ; Gilmore Md. 13. 

V. Black, 11 Me. 488; Modilewell v. («) Jones v. Parsons, 25 Cal. 100. 

Keever, 8 W. & S. 63 ; Ketcham v. Clark, {ttf) Moore v. Bare, 11 Iowa, 198. 

6 Johns. 144 ; Manjuand v. N. Y. Manut'. («) See preceding notes, and Nicoli v. 

Co., 17 Johns. 525 ; Mathewson v. Clark, Mnmford, 4 Johns. Ch. 522 ; Rodriguez 

6 How. 122 ; Horton's Appeal, 13 Pa. 67 ; v. Hetfernan, 5 Johns. Ch. 417 ; Ex parte 

Bray o. Fromont, 6 Mod. 5 ; Wilson v. Barrow, 2 Rose, 252. 



§ 113.] RIGHTS AND DUTIES OF PARTNERS. 139 

the especial purpose of the partnership, the method of transfer, or 
any of the circumstances attending it, make it impossible for the 
transfer to be enforced, — a court of equity would probably either 
refuse to sanction the transfer at all, or would attach to their 
enforcement of it conditions and provisions which would prevent 
it from working a mischief. Subject to these qualifications, every 
partner has, at common law, an unquestionable right of divesting 
liimself, in good faith, of his interest in the partnership, in favor 
of a third party. But, taking them into consideration, we think 
it an accurate expression of the rule to say that no partner has a 
right to transfer the whole of his interest in the partnership stock 
to a stranger, unless he has a right to dissolve the partnership. 
Indeed, as we shall sec in a subsequent chapter, such a transfer 
works a dissolution. 

§113. Right to Purchase. — As with sales so with purchases: 
a purchase by one partner, in the course and within the scope of 
the regular business of the firm, binds the partnership, (a) ^ 



(ct) The principle is laid down in a 430; Dougal v. Cowles, 5 Day, 515 ; per 

ease as early as 1696, Hyat i?. Hare, Comb. Spencer, J., in "Walden v. Sherburne, 15 

383. See Bond v. Gibson, 1 Camp. 185 ; Johns. 422 ; Braches v. Anderson, 14 Mo. 

Dyke v. Brewer, 2 C. & K. 828 ; per 441 ; Dubois's Appeal, 38 Pa. 231. 
Brainerd, J., in Mills v. Barber, 4 Day, 



1 So the purchase of the lease of a brewerj' by one of a firm of brewers is within 
the scope of tlie business, and one partner may bind the firm by making it. Stillmau 
V. Harvey, 47 Conn. 26. 

But the purchase of the interest of a partner is not within the scope of the part- 
nership busine>s ; and one partner in making it is not acting for the firm. Cassels 
V. Stewart, 6 App. Cas. 64 ; Summerlot v. Hamilton, 121 Ind. 87, 22 N. E. 973. 

Where one of a firm of brokers, being the managing partner, agreed with a pur- 
chaser of bonds on behalf of the firm to repurchase the bonds at any time for the 
price paid, this was held apparently within the scope of the partnership business. 
Johnston v. Trask, 116 N. Y. 136, 22 X. E. 377. 

But one partner cannot without consent of the others accept in pa}'ment of a firm 
debt shares in a company the owner of which becomes liable as a contributoi7. 
Niemann v. Niemann, 43 Ch. D. 198 (C. A.). 

A purchase by one partner, though in fraud of the partnership, binds the copart- 
nership, if made bond fide and without gross negligence on the part of the vendor. 
Bond V. Gibson, 1 Camp. 185 ; Dixon v. Alexander, 7 Ired. 4. See "Walden v. Sher- 
burne, 15 Johns. 422, 423 ; also, ante, § 84, as to the effect of stipulations between 
partners which are known to those who deal with them. And see Salomons v. Xissen, 
2 T. R. 674 ; Treadwell v. Williams, 9 Bosw. 649 ; Morrison v. Atwell, 9 Bosw. 503. 

So tlie partner may buy land for the firm if it is needed for the firm business. 
Davis V. Cook, 14 Nev. 265. 

But the goods bought must be in the line of the firm business, unless the purchase 
is ratified. Porter v. Curry, 50 111. 319 ; Biggs v. Huberts, 14 S. C. 620 ; Bankhead v. 
Alloway, 6 Coldw. 56. 

The firm is liable, though the partner who bought goods on account of the firm 



140 



THE LAW OF PARTNERSHIP. 



[CH. VIL 



SECTION II. 



EXTENT OF THE POWER OF A SINGLE PARTNER. 



§ 114. Foundation of the Power of a Partner. — It is not 

iiiifrcqueutly said tliat each pai'tner is the agent of all the rest, 
and acts for them by possessing their authority, (v) It is however 



(y) Such is almost universally the 
doctrine of the authorities upon the sub- 
ject. Watson, the earliest writer upon 
the Law of Partnership, in stating the 
principle upon which one partner's acts 
bind the rest, made use of language which 
has been quoted with approbation by all 
subsequent text-writers upon the same 
branch of law: "It may be laid down 
that partners are bound by what is done 
by one another in the course of the part- 
nership business. Their liability under 
contracts is commensurate and coextensive 
with their rights. Although the general 
rule of law is, that no one is liable upon 
an}^ contract except such as are privy to it, 
yet this is not contiavened by the liability 
of ]>artners, as they may be imagined vir- 
tually present at and sanctioning the pro- 
ceedings they singly enter into in the course 
of trade ; or as each vested with a power 
enabling them to act at once as principals 
and as the authorized agents of their co- 
partners." Watson on Part. p. 167. So 
in Hawken v. Bourne, 8 M. & W. 703, 
Parke, B., says : "One partner, by virtue 
of that relation, is constituted a general 
agent for another, as to all matters within 
the scope of the partnership dealings, and 
has conmiunicated to him by virtue of 
that relation, all authorities necessary for 
carrying on the partnership, and all such 
as are usually exercised by partners in 
that business in which they are engaged." 
Fox v. Clifton, 6 Bing. 792, per Tindal, 



C. J.; Walden v. Sherburne, 15 Johns. 
422 ; Van Keuren v. Parmelee, 2 N. Y. 
525 ; Western Stage Company v. W^alker, 
2 la. 512. In W^inship v. Bank of the 
United States, 5 Pet. 561, Chief Justice 
Marshall thus declares his opinion of the 
basis upon which the power of one partner 
rests: "A partner, certainly the acting 
partner, has power to transact the whole 
business of the tirm, whatever that may 
be, and consequently to bind his partners 
in such transactions as entirely as himself. 
This is a general power, essential to the 
well-conducting of business, which is im- 
plied in the existence of a partnership. 
When, then, a partnership is formed for a 
particular purpose, it is understood to be 
in itself a grant of poiver to the acting 
members of the company to transact its 
business in the usual way. If that busi- 
ness be to buy and sell, then the individ- 
ual buys and sells for the company, and 
every person with whom he trades in the 
way of its business has a right to consider 
him as the company, whoever may com- 
pose it. It is usual to buy and sell on 
credit ; and, if it be so, the partner who 
purchases on credit, in the name of the 
firm, must bind the firm. This is a gen- 
eral authority held out to the world, to 
which the world has a right to trust." In 
Greeley v. Wyeth, 10 N. H. 16, Parker, 
C. J., says : "The authority of a partner 
is much more extensive than that of a 
mere agent." 



afterwards misapplied them. Johnson i'. Barry, 95 111. 483 : Kenney v. Altwater, 77 
Pa. 34 ; Clark v. Johnson, 90 Pa. 442. 

Where it is a well-established custom for one firm to charge to the account of 
another goods furnished to a customer sent to the former by the latter, the managing 
partner of a firm has authority to charge it with the price of goods thus furnished to 
a customer sent by the managing partner to another firm to buy the goods. Cameron 
V. Blackman, 39 Mich. 108. 



§ 115.] RIGHTS AND DUTIES OF PARTNERS. 141 

more exact to say that the authority of each partner rests on prop- 
erty quite as much as on agency, and arises from the nature and 
purpose of the rehition of partners, and must be found and ilhis- 
trated only in and by the law of partnership. This distinction is 
material ; for some confusion and error have arisen from deriving 
the definition and extent of the power too exclusively from the 
law of agency. We take the true theory to be, that as the com- 
mon law recognizes corporations, as peculiar persons, governed 
by a peculiar but very complete system of law, so the law-mer- 
chant, which is now a part of the common law, recognizes part- 
nerships as quasi corporations. They are something between 
individuals and corporations, and are not governed altogether by 
the laws applicable to either, but by their own law. They are 
like individuals, in that the names of the persons composing them 
are to be used in court, whether they be plaintiffs or defendants. 
But even the usual addition," copartners under the firm and style 
of," (fee, indicates the point wherein a partnership resembles a 
corporation, in being an aggregated body with an appellation 
which is proper to it, which is indeed its mercantile name, under 
which it does all mercantile business and signs all mercantile 
papers. We do not say that a partnership is a person in the 
sense in which the common law says that a corporation is one. 
But we say it has a peculiar kind of personality, which must be 
understood and recognized if we would understand and apply 
aright the law of partnership. And we consider the individual 
partner, when conducting the affairs of the partnership, not so 
much as acting for himself because of his own interest, and then 
for the rest by their authority, but as acting for and representing 
this commercial personality. For it is one of the principal rules 
of the law whicli creates, defines, and governs this personality, 
that every one of those members who together constitute it has 
full power to represent it and act for it in all mercantile transac- 
tions within the scope of its business. And this power in each 
member is coequal with the power of every other member, except- 
ing only such modification as may be derived from the articles of 
agreement which gave existence and form to this personality, or 
some subsequent modification of them. 

§ 115. General Extent of the Power of a Partner. — While the 
power of one partner is the same with the power of every other, 
unless qualified by the articles, the power of every partner — all 
being alike — may be qualified not only by the articles, but by the 
nature and limitations of their transactions, or the general usage 
of merchants, or the especial usage of persons engaged in that 



142 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



business, or even of that very firm. For out of all these sources 
may arise what might be called implied stipulations with each 
other. 

Hence, this power of each partner to bind the firm is not con- 
fined to mere selling and buying, but extends over all contracts 
or obligations or acts fairly within the business of the firm, (w) 
Numerous and various are the questions which have arisen as to 
the application of this principle, as well as the cases which 
answer these questions. 

§ 116. Power to Borrow and Pay. — The general principle being, 
then, that one partner may act for his copartnership in all trans- 

(w) Anon., 12 Mod. 446; Smithy. 
Baily, 11 Mod. 401 ; v. Layfield, 1 



Salk. 292, Holt, 434 ; De Tastet v. Carroll, 
1 Stark. 88 ; Swan v. Steele, 7 East, 210; 
Sadler v. Lee, 6 Beav. 324 ; Blair v. 
Bromley, 2 Phillips, 354; Lacy t?. M'Neile, 
4 Dow. & R. 7 ; Winship v. Bank of the 
United States, 5 Pet. 529, 661, 5 Mason, 
176 ; Tapley v. Butterfield, 1 Met. 515 ; 
Brown v. Lawrence, 5 Conn. 397 ; Beck 
V. iMartin, 2 McMullaii, 260 ; Hawken v. 
Bourne, 8 M. & W. 703; Hill v. Voorhies, 
22 Pa. 68. And, if a partnership engages 
in any transaction outside of its regular 
business, the acts and declarations of one 
partner, with respect to that transaction, 
bind the firm, as much as though they 
were nia<le with respect to some matter ih 
the course of its ordinary and customary 
business. Sandilands v. Marsh, 2 B. & 
Aid. 673. See Ex parte Gardom, 15 Ves. 
286. So where the proprietors of several 
mail-coaches advertised that they would 
not be accountable for any parcels above 
the value of 5^., except upon certain con- 
ditions, and A., one of the co-proprietors, 
who kept the coach-office, made a special 
agreement with the plaintiff, with respect 
to one coach, by which those conditions 
were dispensed with, it was held, that all 
the owners of the coaches in which A. 
was a partner, and by which the plaintiff's 
goods were .sent, were bound by this spe- 
cial contract. Helsby v. Mears, 5 B. & C. 
504, 8 Dow. & R. 289. See Dwight v. 
Biewster, 1 Pick. 50. 

These powers of a partner exist, though 
some of the partners be secret or dormant. 
Winship v. Bank of the United States, 5 
Pet. 529 ; Swan v. Steele, 7 East, 210 ; 
Wiutle V. Crowther, 1 Cr. i J. 316. 



Though it has been held, that, if there be 
actual fraud in the original formation of 
the partnership, a dormant partner who 
has received none of the funds will not be 
liable to creditors upon contracts made by 
the ostensible partners. Mason v. Connell, 
1 Whart. 381 ; Wood v. Connell, 2 Whart. 
542. Nor does it affect the power of each 
partner, that the partners are trustees, and 
that the joint business is carried on for the 
benefit of their ccstuis que trustent. Thick- 
nesse v. Bromilow, 2 Cr, & J. 425. As to 
the effect of fraud, see Dickson v. Alexan- 
der, 7 Ired. 4 ; Emerson v. Harmon, 14 Me. 
271; Bascom v. Young, 7 Mo. 1,4; Steel v. 
Jennings, Cheves, 183 ; M'Kee v. Stroup, 
Rice, 291. See Halls r. Coe, 4 McCord, 
136; Henderson v. Wild, 2 Camp. 561 ; 
Jones V. Herbert, 7 Taunt. 421 ; Arton 
V. Booth, 4 J. B. Moore, 192 ; Furnival v. 
Weston, 7 J. B. Moore, 356 ; Bignold v. 
Waterhouse, 1 M. & S. 255 ; Farrar 
V. Hutchinson, 9 A. & E. 641 ; Lloyd v. 
Freshfield, 2 C. & P. 325 ; Barker v. Rich- 
ardson, 1 Y. & J. 362 ; Mountstephen v. 
Biooke, 1 Chitty, 391. In Eastman v. 
Wright, 6 Pick. 323, Morton, J., said : 
"In England, when a nominal plaintiff, 
or one of several plaintiffs, releases an 
action in fraud of the party in interest, 
the court directly interfere, and set aside 
the release. But in this State the courts 
have never exercised that power. The re- 
lease may be avoided, if fraudulent ; but 
the question of fraud can only be tried liy 
jury." The effect of stipulations between 
partners upon the power of any one or 
more of them, when those stipulations are 
known to third parties, we have already 
considered See ante, § 84. For their effect 
when unknown, see post, § 160. 



S 116.] 



RIGHTS AND DUTIES OF PARTNERS. 



143 



actions fairly within tlie business of the firm, we will cite the 
authorities which appear to determine what acts one partner in a 
mercantile house may ordinarily do. We have already shown 
that one partner may buy and sell, and may assign and transfer, 
by way of either pledge or mortgage, and in trust or otherwise, in 
the name of the partnership, (a) He may also bind the firm by 
borrowing money, (aa) though he misapplies the money after bor- 
rowing it ; or by lending money, (b) He may also make payment 
for the firm of the joint debts, (^i) and may compound them ; (c?), 
or he may take a release of them, which, though made to himself 
personally, and even though providing that those bound with him 
shall not be released, (cc) will yet be a complete discharge of the 
whole firm, (c?) But a release to one partner, made with refer- 
ence to a joint debt, to have the effect of discharging the firm 
must be a technical one under seal, (e) Hence a covenant with 
one partner not to sue him will not discharge his copartners, 



(rt) See ante, § 108. 

(aa) Rothwell v. Humphreys, 1 Esp. 
406; Thicknesse v. Bromilow, 2 Cr. & J. 
425, 430, 431 ; Etheridge v. Binney, 9 
Pick. 272 ; Wbitaker v. Brown, 16 Weml. 
505 ; Church v. Sparrow, 5 Wend. 223 ; 
Onondatja Co. Bank v. De Puy, 17 Wend. 
47 ; Winship v. Bank of the United 
States, 5 Pet. 529, 5 Mason, 176 ; Lloyd 
V. Freshfield, 2 C. & P. 325; Miller v. 
Manice, 6 Hill, 119 ; Steel v. Jennings, 
Cheves, 183 ; Emeison v. Harmon, 14 
Me. 271 ; Bascom v. Young, 7 ilo. 4 ; 
Hunt V. Hall, 8 Ind. 215; Hutchins v. 
Hudson, 8 Humph. 426 ; Hogan v. Rey- 
nolds, 8 Ala. 59 ; Saltinai.sh v. Bower, 22 
Ala. 221 ; [Gilchrist v. Brande, 58 Wis. 
184, 15 N. W. 818. And he may agree 
upon security for the loan. Hopkins v. 
Thomas, 61 "Mich. 389, 28 N. W. 147.] 
If one partner authorizes another to pro- 
cure an indorser on a note to be offered 
for discount, he authorizes him to mort- 
gage all the stock in trade to secure the 
indorser, Patterson i>. Maughan, 39 U. C. 
Q. B. 371 ; and, generally, such acts as 
may be reasonably necessary to accomplish 
the authorized act. Halpenny v. Pennock, 
33 U. C. Q. B. 229. 

(b) Alexander v. Barker, 2 Cr. & J. 
133. 

(bb) Innes v. Stephenson, 1 Moody & 
R. 145; Tyson v. Pollock, 1 Barr, 375; 



Cheap V. Cramond, 4 B. & Aid. 663; 
Averell v. Lyman, 18 Pick. 351. See 
Campbell v. Mathews, 6 Wend. 551; 
[Hardy v. Norfolk .Mfg. Co., 80 Va. 403. 

In Stout V. Ennis Nat. Bank, 69 Tex. 
384, 8 S. W. 808, the court suggested 
that payment of a firm debt by a single 
partner might be valid, even if the other 
objected to the payment, to the creditor's 
knowledge.] 

(c) Doremus i-. McCormick, 7 Gill, 49 
65. See Ex parte Slater, 6 Ves. 146. 

(cc) See Everard ?;. Heme, Litt. 191 ; 
Cocks I'. Nash, 9 Bing. 341. 

(d) Hammon v. Roll, March, 202 ; 
Nt'dliam's Case, 8 Co. 136 ; Bower v. 
Twadlin, 1 Atk. 294 ; Co. Litt. 232, a ; 
Collins V. Prosser, 1 B. & C. 682 ; Tuck- 
erman v. Xewhall, 17 Mass. 581 ; Amer- 
ican Bank r. Doolittle, 14 Pick. 126; 
Wiggin V. Tudor, 23 Pick. 444; United 
States V. Thompson, Gilpin, 614 ; Bursou 
V. Kincaid, 3- Pen. & W. 57 ; Willings v. 
Consequa, Pet. C. C. 301, 307 ; Brown v. 
Marsh, 7 Vt. 327 ; Gray v. Brown, 22 
Ala. 262. 

(fl) Shotwell I'. Miller, Coxe, 181 ; 
Shaw V. Pratt, 22 Pick. 305 ; Walker v. 
McCulloch, 4 Me. 421 ; Harrison r. Clare, 
2 .Tohns. 449 ; Rowley v. Stoddard, 7 
Johns. 207 ; De Zeug v. Bailey, 9 Wend. 
336 ; Catskill Bank v. Messenger, 9 Cow. 
37 ; Lunt v. Stevens, 24 Me. 534. 



144 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



since such an agreement of itself evinces an intention on the part 
of the partnership creditor to avoid the effects of a technical 
release to one of the firm. (/) ^ 

§ 117. Power to receive Payment. — One partner may also 
receive payment of the debts due the partnership ; (^) he may 
compromise them ; (h) or he may release them, and this even by 
deed.'-^ But though a partner may release a joint debt in his own 
name only, a covenant by him personally, not to sue a deljtor of 
the partnership, does not amount to a release of the debt, nor 
prevent the firm from bringing an action for it in the names of 
all the partners. In such case, the remedy of the partnership 



(/) Hutton V. Eyre, 6 Taunt. 289 ; 
Bank of Chenango v. Osgood, 4 Wend. 
607 ; Dran v. Newhall, 8 T. R. 168 ; 
Couch V. Mills, 21 Wend. 424 ; Chandler 
V. Herrick, 19 Johns. 129 ; Goodnow v. 
Smith, 18 Pick. 416 ; Shed v. Pierce, 17 
Mass. 623 ; McLellaii v. Cumberland 
Bank, 24 Me. 566 ; Mason v. Jouett, 2 
Dana, 107 ; Hosack v. Rogers, 8 Paige, 
229. And even a release under seal to 
one partner, may, it seems, be accom- 
panied with such provisos and conditions 
as to confine its operation to that one 
partner alone, and prevent it from dis- 
charging the firm. Solly v. Forbes, 4 
Moore, 448 ; 2 Br. & B. .38. See the lan- 
guage of Shaw, C. J., in Wiggin v. Tudor, 
23 Pick. 444, 445. 

Upon the same principle, if two are 
arrested on a joint ca. sa. for the amount 
of the damages obtained against them in 
an action of trespass, and the i)laintiff 
discharges one of them upon his giv- 
ing him his promissory note, this dis- 
charge of one operates as a release of both 
the defendants. Ballam v. Price, 2 J. B. 
Moore, 235. See Foster v. Jackson, Hob. 



59. In like manner, if one of two joint 
debtors, who is in execution, obtains his 
discharge from the creditor, the del)t is 
thereby satisfied as to the other debtor 
also. Clark v. Clement, 6 T.R. 625; Gould 
V. Gould, 4 N. H. 173 ; Abel v. Forgue, 
1 Root, 502. 

((/) Anon., 12 Mod. 447 ; Duff v. The 
East India Company, 15 Ves. 198 ; Tom- 
lin V. Lawrence, 3 Moore & P. 555; M'Kee 
V. Stroup, Rose, 291 ; Gregg v. James, 1 
III. (Breese) 107 ; Yandes v. Lefavour, 2 
Blackf. 371 ; Allen v. Farrington, 2 
Sneed, 526 ; Porter v. Taylor, 6 Moore & 
S. 156 ; King v. Smith, 4 C. & P. 108 ; 
Brasier v. Hudson, 9 Sim. 1. See Hen- 
derson V. Wild, 2 Camp. 561 ; Pritchard 
V. Draper, 1 Rus. & JVi 191 ; Jacaud v. 
French, 12 East, 317. 

(/() Pierson v Hooker, 3 Johns. 70; 
Cunningham v. Littlefield, 1 Edw. Ch. 
104; Doremus v. McCormick, 7 Gill, 49, 
65. [See Levick's Appeal, (Pa.) 2 Atl. 
532. But he cannot accept on satisfaction 
shares in a company the owner of which 
is liable as a contributory. Niemann v. 
Niemann, 43 Ch. D. 198 (C. A.).] 



^ A release of one partner is valid and releases the firm. Ex parte Slater, 6 Ves. 
146; Elliott v. Holbrook, 33 Ala. 659; Williamson v. McGinnis, 11 B. Mon. 74; Chase 
V. Bean, 58 N. H. 183. But a mere covenant not to sue one partner will not be effectual 
as a release of all. Roberts v. Strang, 38 Ala. 566 ; Hosack v. Rogers, 8 Paige, 229, 237. 
And if the intention was not to release the firm, even a sealed release of one partner 
will be construed as a covenant not to sue. Willis v. De Castro, 4C. B. N. s. 216 (of a 
joint debt); Northern Co. v. Potter, 63 Cal. 157 ; Parmelee v. Lawrence, 44 111. 405 ; 
Gardner ?7. Baker, 25 la. 343 ; Greenwald v. Raster, 86 Pa. 45 ; Williams v. Hitchings, 
10 Lea, 326. Supra, note (/). This will be the case a fortiori where the release was 
not sealed. Ex parte Good, 5 Ch. D. 46 ; McAllester v. Sprague, 34 Me. 296 : Burke 
V. Noble, 48 Pa. 168. Supra, note [e). See Ames, Cas. on Part., 606 n. 

2 See post, § 123. 



§ 118.] 



RIGHTS AND DUTIES OF PARTNERS. 



145 



debtor is against the covenanting partner, for the breach of 
covenant. (/ ) 

§ 118. Power to conduct Legal Proceedings. — One partner has 
power to represent and to act for the firm in legal proceedings. 
Thus, one partner may, for himself and his copartner, sign a note 
for the weekly payment under the Lords' Act. (^k) So, if two 
partners commence an action, one may release the subject-matter 
of it, which release will be binding upon his copartner, and ope- 
rate as a bar to the action. (Z) Upon the same principle, one 
partner may suspend proceedings in an action by the firm (w). 
[So in an action against the firm, one partner may enter an 
appearance for the rest. (?i) It seems however, that service of 
process should be made on each partner personally, (o)] 

As in legal proceedings generally, so in those under the 
Bankrupt Laws, the act of one partner is the act of his partner- 
ship. Thus, to sustain a fiat, one partner may make affidavit 



(j) Walinsley v. Cooper, 3 Ter. & D. 
149. 

{k} Meux V. Hiunphrey, 8 T. R. 25; 
Burton v. Issitt, 5 B. & Aid. 267. 

{I) Barker v. Richardson, 1 Yoiinge & 
J. 362 ; Arton v. Bootli, 4 J. B. Moore, 
192 ; Furnival v. Weston, 7 J. B. Moore, 
356 ; Jones v. H(!rbert, 7 Taunt. 421 ; 
Wilson V. Mower, 5 Mass. 411. So, if a 
bill is drawn by a firm, and one of the 
]iartners agrees with the acceptor to pro- 



250. See, however, contra. Haslet v. 
Street, 2 McCord, 310; Loomis v. Pierson, 
Harp. 470 ; Hills v. Ross, 3 Dallas, 331, 
note ; Bright v. Sampson, 20 Tex. 21. A 
different question arises after dissolution. 
Hall v. banning, 91 U. S. 160, holds that 
one partner after dissolution has no 
authority to enter an appearance for 
the firm, in a suit against it ; and a judg- 
ment founded on such an appearance 
is void, in case the other members re- 



vide for it when due, this operates as a sided out of the State. A fortiori such a 

release to the acceptor of any action that judgment would be void, if the other 

might have been brought upon the bill, partners could be reached by process, 

notwithstanding any fraud on the part of See ace. Atchison Savings Bank v. Tem- 

the single partner as against his copart- plar, 26 F. R. 580.] 



ners. Riclnnoiul v. Heapy, 1 Stark. 202 ; 
Johnson v. Peck, 3 Staik. 66 ; Siiarrow v. 
Chisman, 9 B. & C. 241. 

(m) Harwood v. Edwards, cited in Gow 
on Part. 65. See Loring v. Brackett, 3 



(o) Moredou V. Wyer, 6 M. & G. 278, 
and note ; Demoss v. Brewster, 4 S. & il. 
661. See Bennett v. Stickney, 17 Vt. 
531 ; Phelps v. Brewer, 9 Gush. 390. In 
equity, however, where one of two part- 



Pick. 403. Hence, if for a previous debt ners was abroad, service of sub]ioena upon 

one partner draw a bill upon a debtor of the other partner has been held good 

the firm, which is accepted by him, and service upon both. Carrington v. Cantil- 

is taken by the partner in payment, this Ion, Bunb. 107; Coles f. Gurney, 1 Madd. 

is giving time to the debtor, though the 187. And in Lansing v. M'Killup, 7 Cow. 

bill was drawn in that one partner's name 416, service of declaration upon one of a 

alone ; and the debtor cannot be sued for firm of attorneys, whose name did not 

the amount of the debt till the bill has appear on the record as attorney for the 



arrived at maturity and been dishonored. 
Tomlin v. Lawrence, 3 Moore & P. 585. 

(h) D. arguendo, Harrison v. Jackson, 
7 T. P. 208 ; Bennett v. Stickney, 17 Vt. 
531 ; Taylor v. Coryell, 12 S. & R. 243, 



defendant, the business of the firm being 
done in the name of the other partner, 
was yet held good and regular service. 
Alexander v. Stern, 41 Tex. 193. See 
contra, Young v. Goodson, 2 Russ. 255. 



10 



146 THE LAW OF PARTNERSHIP. [CH. VII. 

of debt, and execute the usual bond, (p) Pie may " prove a 
debt, vote in the choice of assignees, and sign the certificate," 
in behalf of the firm, (q^ He may, by power of attorney, 
authorize some third person to vote in the choice of assignees, 
and to sign the certificate, etc., for the partnership, (r) He may 
sign a petition presented for a hearing, (.s-) And he may bind 
the firm in all other proceedings in bankruptcy, except in the 
case of a i)etition for a fiat, in which all the partners must 
join. (0 

§ 119. Miscellaneous Powers of a Partner. — One partner may 
also bind the firm by effecting insurances upon the joint prop- 
erty, though a part-owner has no such implied authority, (m) 
One partner may also, in the course of the joint business, take a 
guaranty, which, if so intended, shall iimre to the benefit of the 
firm.(y) 

[ One partner may acknowledge a deed for the firm ; ^ may 
waive demand and notice on a firm note ;^ may represent the 
firm at a meeting of a corporation in which the firm is a stock- 
holder, may vote at the meeting, and may waive notice of the 
meeting ; '^ and may sign in the name and on behalf of the firm 
a petition for a statutory lien. ^ ] 

One partner has also power to appoint an agent to transact 
the joint business, and to bind the partnership by his acts rela- 
tive thereto, {w) So also, where a partnersliip is by name 

(p) Ex parte Hodgkinson, 19 Ves. 291 ; B. L. vol. 2, p. 5. See Pierce v. Stockwell, 

2 Rose, 174 ; Ex parte Peele, Buck, 457. 11 Ciish. 236. 

iq) Fer Lovd E\don in Ex parte Hodg- {u) Hooper v. Lusby, 4 Camp. 6*5, 

kinson, 19 Ves. 293 ; Ex parte Mitchell, [Hillock v. Traders' Ins. Co., 54 Mich. 

14 Ves. 597 ; Ex parte Shaw, 1 Olyn & J. 531 ; Osgood v. Glover, 7 Daly, 3t57.] 

129 ; Ex parte Bank, 2 Glyn & J. 3fi3 ; Ex See Irving v. Excelsior Fire Ins. Co., 1 

parte Hall, 1 Rose, 2 ; Ex parte Bignold, 2 Bosw. 507 ; Graves v. Boston Marine In?;. 

Mont. & A. 655. Co., 2 Cranch, 419 ; Foster v. United 

(r) Ex parte Mitchell, 14 Ves. 597; States Ins. Co., 11 Pick. 85. 
Ex parte Shaw, 1 Glyn & J. 129. {v) Garrett v. Handley, 4 B. & C. 664 ; 

(.f) See Ex parte' Morgan, Buck, 109 ; Walton v. Dodson, 3 C. & P. 162. 
Ex parte Cox, 1 Glyn & J. 355, note ; Ex (tv) Tillier v. Whitehead, 1 Dallas, 

parte Fife, 2 Mont. & A. 577. 269 ; Lucas v. Bank of Dari^n, 2 Stewart, 

(t) Buckland v. Newsame, 1 Taunt. 280, 297; Coons c. Reniek, 11 Tex. 134. 

477 ;• Ex parte Peele, Buck, 457 ; Arch. See Eobinson v. Hotnian, 4 Bing. 562. 

1 Citizens' Nat. Bank v. Johnson, 79 la. 290, 44 N. W. 551 ; Sloan v. Machine Co., 
70 Mo. 206. 

2 Seldner v. Mount Jackson Nat. Bank, 66 Md. 488, 8 Atl. 262. But he may not 
waive the benefit of the exemption laws so as to bind his partner. Terrell v. Hurst, 76 
Ala. 588 ; Reed Lumber Co. v. Lewis, 94 Ala. 626, 10 So. 333. 

3 Kenton Furnace R. R. & MTg Co. v. McAlpin, 5 F. R. 737. 
* Garland v. Hickey, 75 Wis. 178, 43 N. W. 832. 



§ l^lj 



RIGHTS AND DUTIES OF PARTNERS. 



147 



empowered to act for a third party, one partner may execute 
the agency so as to bind the principal, (x) But from a general 
power of attorney granted to one of two partners the other can 
derive no authority, (xx) 

§ 120. Limitation of Power by Usage. — This principle is gen 
erally subject to the further limitations of usage, although the 
general usage of merchants would impose very little other restric- 
tion than that already implied by the requirement that these 
acts should always be within the regular business of the firm, (/y) 
And if a contract be made by one partner in the name of the 
firm with a stranger, if the transaction is foreign to the usual 
course of dealing with the firm, this circumstance lays on the 
stranger the duty and responsibility of inquiring and ascertain- 
ing whether the partner has the authority of the firm. (^?/) 

§ 121. Power to Submit to Arbitration. — A seeming exception 
exists in relation to arbitration ; lor, while a copartner may 
create a debt, or pay a debt, or compromise a debt, or, in good 
faith, deal with it in any other way, the one thing which it is 
said he cannot so do as to bind his copartners is to submit the 
debt to arbitration. (2) Of the reasons given for this, one, that 



{x) Gordon v. Buchanan, 5 Yerger, 71, 
82 ; Beck v. Martin, 2 McMuUan, 260 ; 
Kennebec Co. v. Augusta Ins. & Bank Co., 
6 Gray, 204. 

(xx) Edmiston v. Wright, 1 Camp .88. 

(y) Anon., 2 Ca. Ch. 38, 16 Vin. Ab. 
242 ; Ex parte Agace, 2 Cox, 312 ; Living- 
ston V. Roosevelt, 4 Johns. 251 ; Lawrence 
V. Dale, 3 Johns. Ch. 23, 17 Johns. 427 ; 
Rogers v. Batchelor, 12 Pet. 221 ; East- 
man V. Cooper, 15 Pick. 276 ; Marsh v. 
Gold, 2 Pick. 285 ; Nichols v. Huglies, 2 
Bailey, 109 ; Thomas v. Harding, 8 Me. 
417 ; Walcolt v. Canfield, 3 Conn. 198 ; 
Wagnon v. Clay, 1 A. K. Marsh. 257 ; 
Goode V. Linecurn, 1 How. (Miss.) 281 ; 
Goodman v. Wliite, 25 Miss. 163. The 
giving of guarantees for the debts of third 
parties is not a part of the regular course 
of business of an ordinary mercantile 
house, and is not, therefore, within the 
power of one partner. See po.if, § 144. 
Nor is the receiving of notes for other 
persons, and undertaking to collect them. 
Hogan I'. Reynolds, 8 Ala. 59. And, 
though every partner has an implied 
authority to borrow money generally, he 
is not thereby necessarily empowered to 



bind the firm by a loan of money for the 
purpose of increasing the fixed capital of 
the concern. Fisher v. Tayler, 2 Hare, 
218. See Greenslade v. Dower, 7 B. k C. 
635. A partner cannot bind his copart- 
ners, by a banking account opened by him 
in his own name in behalf of the firm. 
Alliance Bank v. Keaseley, L. R. 6 C. P. 
433. So, notwithstanding the power of 
disposal which each partner possesses with 
respect to the joint property, he cannot 
give it away. Ante, § 90. Finally, the 
manner in which a particular firm has been 
in the habit of managing its business may 
greatly var}' and enlarge the power which, 
under ordinary circumstances, that par- 
ticular trade would confer upon one [lart- 
ner. See "Woodward v. Winship, 12 Pick. 
430. 

(yy) Cadwallader v. Kroesen, 22 Md. 
204. 

(z) And this continues true, whether 
the submission be under seal or not. Stead 
V. Salt, 3 Bing. 101. But see Hallack r. 
i\rarch, 25 111. 48, and ca-ses there cited. 
A firm of five members declared against 
the defendant for work, labor, materials, 
&c. The defendant pleaded the general 



148 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



submission to arbitration is no mercantile transaction, and could 
not have entered into the minds of the partners when entering 
into partnership, seems to us to beg the question, and to be a very 
feeble reason ; (22) and another, that it may compel the part- 
ners, by force of the award, to do things never contemplated by 
them, and in no sense mercantile, seems to have little more 
force, (a) The true reason may be, that the law, while it 
favoi-s arbitration in many respects and ways, on the other hand 
is jealous of it. The courts are, or until a very recent period (6) 



issue, and put in an award upon the matter 
touching which the action had been 
biought. The articles containing the sub- 
niis.sion, however, were signed bj' only 
three of the partners. It was held that 
the submission was insufficient, and could 
not bind the firm. Hambidge i\ De La 
Crouee, 3 C. B. 744, 745. In Adams v. 
Bankart, 1 Cr., U. & R. 685, Lord Abinger, 
C. B., said : "I think we have sufficient 
authority for saying, that one partner 
cannot bind another by a submission to 
arbitration, without the assent of the 
latter." Karthaus v. Ferrer, 1 Pet. 228; 
Hall V. Lanning, 91 U. S. 160 ; Martin v. 
Thrasher, 40 Vt 460 ; Gibson, C. J., in 
Harper v. Fox, 7 W. & S. 143 ; Buchanan 
V. Curry, 19 Johns. 137 ; Harrington v. 
Higham, 13 Barb. 660 ; Buchoz v. Grand- 
jean, 1 Mich. 367 : Wood v. Shep- 
herd, 2 Pat. & H. 442 ; Jones v. 
Bailey, 5 Cal. 345. See Boyd v. Emer- 
son, 2 A. & E. 184 ; Skillings v. Coolidgc, 
14 Mass. 43, 45 ; Martin r. Thrasher, 20 
Vt. 460. [Thomas v. Atherton, 10 Ch. D. 
185 (C. A.) ; Fancher v. Bibb Furnace 
Co., 80 Ala. 481, 2 So. 268; Walker v. 
Bean, 34 Minn. 427, 26 K W. 232; 
Tillinghast v. Gilmore, (R. I.) 22 Atl. 
942. If authorized by the other partners, 
one partner may make a binding contract 
to submit to arbitration. Davis v. Berger, 
54 Mich. 652, 20 X. W. 629.] Respect- 
ing the mode of showing the authority of 
one partner to bind his firm by a submis- 
sion, Lord Abinger, C. B., said, in Adams 
V. Bankart, supra : " I do not mean to 
say tliat such assent must be given in any 
particular form of words, or that it re- 
quires to be under the hand of the copart- 
ner: all that is necessary is, that there 
should be some evidence of an actual 
authority conferred." And Parke, B., in 



the same case: "I am entirely of the 
same opinion. The authority to bind a 
partner to submit to arbitration does not 
flow from the relation of partnership ; and, 
where it is relied upon, it must, like 
every authority, be proved either by 
express evidence, or by such circumstances 
as lead to the jiresumption of such an 
authority having been conferred." 

When a submission is made of all 
matters of difference between an indivi- 
dual and a partnership, it includes only 
such matters as are in dispute between 
that individual and the partnership 
jointly, and not those in dispute between 
that individual and one or more of the 
partners severally. Garland v. Noble, 1 
J. B. Moore, 187. 

(zz) Stead v. Salt, 3 Bing. 103 ; Adams 
V. Bankart, 1 Cr., M. & R 681. 

(ii) In Boyd v. Emerson, 2 A. & E. 184, 
one question raised was, whether one part- 
ner could bind his copartners by a parol 
submission to arbitration. The court did 
not tliink it necessary to decide the point. 
The argument of counsel, however, in 
favor of this power in one partner is 
worthy of attention. 

{b) See for cases questioning, and to 
some extent overruling, the ancient prin- 
ciple, that the courts will not enforce an 
agreement to refer, Scott v. Avery, 8 Exch. 
487, 497, 5 H. L. C. 811 ; Livingstone u. 
Ralli, 5 E. & B. 132 ; Horton v. Soyer, 4 
H. & X. 643 ; Russell v. Pellegrini, 6 
E. & B. 1020. See also Cobb i-. New 
England Mut. M. Ins. Co., 6 Gray, 192, 
204. An English statute, 17 & 18 Vict. 
c. 125, § 11, provides, that when there is 
such an agreement, and an action is 
brought in violation of it, the court may 
grant a rule to stay proceedings, at the 
request of the defendants. See j^ost, § 170. 



§ 122.] RIGHTS AND DUTIES OP PARTNERS. 149 

have been, unwilling to enforce or sanction an agreement by 
which parties are compellable to renounce the perfectly impartial 
and well-constituted tribunal which is open to all the public, for 
one which the parties construct themselves, and which is open 
to very many possibilities of error, (c) 

Hence both law and equity have refused to permit a partner so 
to bind himself and his copartners by an agreement to submit a 
question as to oust them of their jurisdiction. But if a partner 
made such a submission, and it was followed by an award, and 
the award and submission were honest and reasonable, and the 
partner thereon agreed that his firm should do the thing awarded, 
this might now be held, in equity at least, as obligatory on the 
partnership. (fZ) 

Indeed, if all the partners agreed to submit a question to 
referees, and then refused to perform their promise, this promise, 
made by the whole, might not only be enforced by decree for 
specific performance, but it would be a good contract at law, as all 
such agreements to refer are, and the party refusing might be sued 
for his breach of promise, (g) And in some of our States, the 
power of a partner to bind the partnership, by his unsealed agree- 
ment to refer a question in which the partnership was interested, 
has been held as matter of law. (/) 

§ 122. Power to Affix a Seal. — The contracts of a firm should 
be unsealed ; for, on this point, the common law certainly con- 
trols the law of partnership. No partnership has a seal, and no 
partner can affix the seals of his copartners, or of any of them, 
without their express authority. While this seems to be a 
settled rule, there has been a great extent and some variety of 
adjudication in regard to it, as we show in the note. (^) Per- 

((•) Harrington v. Higham, 13 Barb, ford v. Green, 2 Mod. 228 ; JIcBride v. 

660. Hagan, 1 Wend. 326, 336 ; Buchanan v. 

{d) Buchanan y. Curry, 19 Johns, 137. Currj-, 19 Johns. 137, 143; Armstrong 

(g) So, if one member of a firm enter v. Robinson, 5 G. & J. 412, 422; "Wood 

into a submission in behalf of himself and v. Shepherd, 2 Pat. & H. 442 ; Jones v. 

his partners, and undertake that the copart- Bailey, 5 Cal. 345. 

nership shall perform the award, the acting (/") Southard v. Steele, 3 B. Jlon. 435 ; 
]iartner is bound, though the firm is not; Taylor v. Coryell, 12 S. & R. 243 ; Wilcox 
and a refusal by his copartners to be bound v. Singletary, Wiight, 420 ; [Gay v. Wait- 
by the arbitration will be a breach of that man, 89 Pa. 453.] 

partner's promise, for which he may be {q) For authorities against the power of 

held liable in damages. Thus, in Com. a partner to bind his firm by a seal, see 

Dig. " Arbitrament" (D. 2), it is said: Thomason y. Frere, 10 East, 418; Metcalfe 

"If there be a controversy between A. of v. Rycroft, 6 M. & S. 75 ; Hall v. Bain- 

the one part, and B. and C. of the other, bridge, 1 M. & G. 42 ; McKee v. Bank of 

and B. submits for himself and C, and Mt. Pleasant, 7 Ohio, 175 ; McNaughten 

there be an award that B. shall pay; this v. Partridge, 11 Ohio, 223; Trimble v. 

is good, though C. be a stranger." Strang- Coons, 2 A. K. Marsh. 375 ; Southard v. 



150 



THE LAW OF PARTNERSHIP. 



[CH. VII, 



haps the old technical rule, that the authority to seal must be by 
seal, (70 would not be strictly applied ; but, generally, at least 
authority there must be. (/) 



Steele, 3 T. B. Mon. 435; Gerard v. Basse, 
1 Dall. 119 ; Hart v. Withers, 1 Barr, 
285 ; Green v. Beals, 2 Gaines, 254 ; Clem- 
ent V. Brush, 3 Johns. Gas. 180 ; Skinner 
V. Dayton, 19 Johns. 513 ; Mills v. Barber, 

4 Day, 428 ; Garland v. Davidson, 3 
Jklunf. 189 ; Tuttle v. Eskridge, 2 Munf. 
330 ; Shelton v. Pollock, 1 Hen. & M. 
422 ; Posey v. Bullitt, 1 Blackf. 99 ; 
Fisher v. Tucker, 1 McCord Ch. 169 ; 
Nunuely v. Doherty, 1 Yerg. 26 ; Black- 
burn V. McCallister, Peck, 371 ; Anon., 
Taylor, 113 ; Anon., 2 Hayw. 99 ; Person 
V. Carter, 3 ]\Iuri:)hy, 321 ; Case of James 
Taylor, 1 Browne, Ixxiii ; Cady v. Shep- 
herd, 11 Pick. 400 ; Van Deusen v. Blum, 
18 Pick. 229 ; United States v. Astley, 3 
Wash. C. G. 508 ; Fleming v. Dunbar, 2 
Hill (S. C), 532; Sloo v. State Bank of 
Illinois, 2 ill. 441 ; Cummins v. Cassily, 

5 B. Mon. 75 ; Montgomery v. Boone, 2 
B. Mon. 244; Button v. Hampson, 
Wright, 93; Ford v. Haft, Wright, 
118; Lay ton v. Hastings, 2 Harr. 147; 
Morris v. Jones, 4 Harr. 428 ; Albers v. 
Wilkinson, 6 G. & J. 358 ; Lucas v. 
Sanders, 1 McMuUan, 311 ; Napier v. 
Catron, 2 Humph. 534 ; Smith v. Tapper, 
4 Sm. & M. 261 ; Snyder v. May, 19 Pa. 
235 ; County v. Gates, 26 Mo. 315 ; 
Gibson v. AVarden, 14 Wall. 244 ; Walton 
V. Tusten, 49 Miss. 569 ; [Herzog v. 
Sawyer, 61 Md. 344 ; Moore v. Stevens, 
60 Miss. 809 ; Weeks v. Mascoma Rake 
Co., 58 N. H. 101; Sibley v. Young, 26 
S. C. 415, 2 S. E. 314 ; Hull v. Young, 
30 S. C. 121, 8 S. E. 695. The contrary 
seems to have been held in one nisi prius 
case, Mears v. Seronold, cited by Dampier, 
orquendo, in Harrison v. Jackson, 7 T. R. 
208.] Hence custom-house bonds, signed 
and sealed by one partner, tliough in the 
name of and for duties on goods imported 
by and belonging to the partnership, are 
yet, at common law, not binding on the 
firm, but only on the executing member. 
Tom V. Goodrich, 2 Johns. 213 ; Walden 
V. Sherburne, 15 Johns. 409, 423 ; United 
States V. Astley, 3 Wash. C. C. 508. But 
so much practical inconvenience has been 
found to result from this application of the 



doctrine that, by act of Congress of March 
1, 1S23, Stat. 2, chap. 21, § 25, it was pro- 
vided that any bond to the United States 
entered into for the payment of duties by 
a merchant belonging to a firm, in the 
name of such firm, shall equally bind tlie 
partner or partners in trade of the ])erson 
or persons by whom such bond shall have 
been executed. 3 U. S. Statutes at Large 
(ed. 1846), 737. [On the other hand, it 
seems to be held in Texas that a partner 
has authority in the name of the firm to 
sign and seal a bond to dissolve an attach- 
ment against the firm. Munzesheimer v. 
Heinze, 74 Tex. 254, 11 S. ^N. 1094.] 

Qi) See Steiglitz v. Egginton, Holt, 141; 
Berkeley v. Hardy, 5 B. & C. 355'; Trimble 
V. Coons, 2 A. K. Marsh. 375; Cummins v. 
Cassily, 5 B. Mon. 74 ; Hart v. Withers, 
1 Barr, 285; Pickering v. Holt, 6 Me. 
160; Blood v. Goodrich, 9 Wend. 75, 76, 
12 Wend. 525. 

(i) It seems to be established in Eng- 
land fand this is also the doctrine of some 
early American cases), that, to bind his co- 
partners by specialty, a partner must have 
a special authority under seal. The requi- 
site authority is not conferred by a general 
partnership agreement under seal. Harri- 
son V. Jackson, 7 T. R. 207 ; Steiglitz v. 
Egginton, Holt, 141 ; Horsley v. Rush, 
cited, arguendo, 7 T. R. 209. See Wil- 
liams V. Walsby, 4 Esp. 220 ; Napier v. 
Catron, 2 Humph. 534. Nor does the 
doctrine, which is universally received as 
well in this country as in England, that 
one partner may execute a valid deed on 
behalf of his firm, if his 'lopartners are 
present and consent thereto, constitute any 
exception to the general rule ; for, in this 
case, tlie act of the executing partner is 
considered the act of all. Lovelace's Case, 
W. Jones, 268 ; Shep. Touch. 55 ; Fitz 
Abr. tit. "Feoffment," ph 105 ; Com.' Dig. 
" Fait" (A. 2) ; Burn v. Burn, 3 Ves. 578 ; 
Ludlow i). Simond, 2 Caines Cas. 1, 42, 55; 
MacKay v. Bloodgood, 9 Johns. 285 ; Mc- 
Whorter v. McMahan, 1 Clarke Ch. 400 ; 
Halsey v. Whitney, 4 Mason, 232 ; Darst 
V. Roth, 4 Wash. C. C. 471 ; Anthony v- 
Butler, 13 Pet. 423, 433 ; Hart v. Withers, 



123.] 



RIGHTS AND DUTIES OF PARTNERS, 



151 



§ 123. Limitations of the Rule as to Seals — An important 
limitation to thu operation of the rule occurs in proceeding's in 



1 BiiiT, SS.o, 291 ; Fichtliorii v. Boyer, 5 
Watts, 159 ; Overton v. Tozer, 7 Watts, 
333 ; Potter v. McCoy, 26 Pa. 458 ; Flood 
V. Yaiides, 1 Blank t'. 102 ; Modisett v. 
Lindley, 2 Bhokf. 120 ; Henderson v. Bar- 
bee, 6 Blackf. 28; M'Artlmr v. Ladd, 5 
Oiiio, 514, 517: Pike v. Bason, 21 Me. 
287; Fleming v. Dunbar, 2 Hill (8. ('.), 
533 ; Freeman v. Carliart, 17 Ga. 348 ; Lee 
V. Onstott, 1 Ark. 206, 218 ; Day v. Laf- 
ferty, 4 Ark. 450. The doctrine is the 
same in equity as at law. Burn v. Burn, 
supra; 1 Hov. Supp. 410. See Smith v. 
Winter, 4 M. & W. 454 ; Palmer v. Justice 
Assurance Co., 6 E. & B. 1015. While, 
then, in England, the common-law doc- 
trines in reference to the execution of 
sealed -instruments have, as far as part- 
ners are concerned, undergone but little, 
if any, modification, the American cases 
have made great and decided innovations. 
Thus, in most of the States, it is well 
established that a partnership will be 
bound by a deed executed by one partner 
on its behalf, provided the act of such 
partner have from his copartners either a 
previous parol authority or a subsequent 
parol ratification. The grounds of this 
qualification of the old rule of the common 
law are clearly and forcilily stated in the 
opinion of Mr. Chief Justice Jones, in 
Gram v. Seton, 1 Hall, 262. This opinion 
includes a very elaborate review of all the 
leading authorities upon the subject. For 
cases supporting the doctrine laid down in 
Gram v. Seton, see Skinner v. Dayton, 19 
Johns. 513, 5 Johns. Ch. 351 ; Smith v. 
Kerr, 3 N. Y. 144 ; Cady v. Shepherd, 11 
Pick. 400; Swan v. Stedinan, 4 Met. 548 ; 
McXaughten v. Partridge, 11 Ohio, 223, 
235 ; Purviance v. Sutherland, 2 Ohio St. 
478, 486 ; Person v. Carter, 3 Murph. 321 ; 
Fleming v. Dunbar, 2 Hill (S. C), 532; 
Lucas V. Sanders, 1 McMullan, 311 ; Mc- 
Cart V. Lewis, 2 B. Mon. 267 ; Darst v. 
Koth, 4 Wash. C. C. 471 ; Bond v. Aitkin, 
6 W. & S. 165, overruling some eaiiier 
cases in Pennsylvania ; Jackson v. Porter, 

2 Mart. (La.) 200 ; Drumright v. Philpot, 
16 Ga. 424 ; Price v. Alexander, 2 Greene 
(la. ), 427 ; McDonald v. Eggleston, 26 Vt. 
154 ; Gwinn v. Rooker, 24 Mo. 290 ; Johns 



V. Battin, 30 Pa. 84 ; Lowery v. Drew, 18 
Tex. 786 ; [Herzog v. Sawyer, 61 Md. 
344 (scinble) ; Sterling v. Bouk, 40 Minn. 
11, 41 X. W. 236 ; Moore v. Stevens, 60 
Miss. 809 (semblc) ; Stroman v. Varn, 19 
S. C. 307 ; Sibley v. Young, 26 S. C. 415, 
2 S. E. 314 ; Hull v. Young, 30 S. C. 121, 
8 S. E. 695 ; Kasson v. Brocker, 47 Wis. 
79, 1 N. W. 418; liumery y. McCulloch, 
54 Wis. 565, 12 N. W. 65.] See also 
Brulton c. Burton, 1 Chitty, 707. In 
Worrall v. Munn, 5 N. Y. 221, 240, Paige, 
J., regards the true rule, as ilerived from 
the cases, to be, that a pi-ior jjarol author- 
ity, or a subsequent ])arol ratification, will 
make a specialty, executed by one partner 
in behalf of his firm, binding upon his co- 
partners, when the act in question would 
have been valid if no seal had been used. 
In Illinois and Alabama it is held to be a 
presumption "warranted by common sense, 
by justice, and sound reason, as well as by 
the principles of law, that all the signers 
of an instrument, indicating, upon its face, 
an intention to seal it, adopt an}' seal or 
scrawl that may be annexed to the name 
of one." Davis v. Burton, 4 111. 41 ; Wit- 
ter V. McNiel, 4 111. 433 ; Hatch v. Craw- 
ford, 2 Porter, 54 ; Herbert v. Hanrick, 16 
Ala. 581. In this last case the doctrine of 
Gram v. Seton is asserted. In Tennessee, 
the technical rule of the common law is 
strictly adhered to, and no partner can 
bind his copartnership by affixing a seal, 
unless he be specially empowered, under 
seal, so to do. Turbeville v. Pivan, 1 
Humph. 113; Napier i'. Catron, 2 Humph. 
534. See Lambden v. Sharp, 9 Humjih. 
224. As for the evidence of prior author- 
ity, or subsequent ratification from which 
a jury may infer the power of one partner 
to bind his copartners by deed, it has been 
held, that where, in a deed of dissolution 
executed by both partners, a debt, for 
which one partner had given a sealed note 
in the name of his firm, was put down as 
a delit " owing by said firm," this was an 
acknowledgment of the legal obligation 
upon the firm of the specialty from which 
an authority to execute it might be inferred. 
Fleming v. Dunbar, 2 Hill (S. C), 532. 
So where one of two partners gave a bond 



152 



THE LAW OF PARTNERSHIP. 



[CH. vir. 



bankruptcy ; (/) and in the case of a release to a joint debtor of 
a partnership claim ; in both of which instances one partner 
may bind his firm, and without special authority, (k) The 
reason for the general rule is obvious. The seal belongs to 
common law and not to the law-merchant, and partnership 
belongs to the law-merchant and not to common law. (?) But 



for a firm debt, in the name of the firm, 
and the other partner afterwards gave di- 
rec'tioiis for its payment, by an order in 
wliich the bond was described as the bond 
of tlie purtnersliip, it was held that this 
order was evidence of a recognition of, and 
an assent to, the act of the partner who 
executed the bond, from which his author- 
ity so to act might fairly be found by the 
jury. Person v. Carter, 3 Murph. 321. 
See Price v. Alexander, 2 Greene (la.), 
427 ; Drumright i-. Philpot, 16 Ga. 424 ; 
Bond V. Aitkin, 6 W. & S. 165 ; Tuttle v. 
Eskridge, 2 Munf. 330 ; Wilson v. Hunter, 
14 Wis. 683. 

(./) See ante, § 118. 

(k) The rule applicable to a release by 
one partner of a joint claim has been gen- 
erally stated thus: "Though one partner 
cannot by deed bring any fresh burden 
upon his copartner, he maj' bar him of a 
right which they possess jointly." One 
reason soTuetimes given for this apparent 
exception to the general doctrine of the 
common law is, that, inasmuch as a debtor 
may lawfully' pay his debt to one partner, 
he ought, also, to be able to obtain a dis- 
charge upon due payment. Another rea- 
son, of a similar nature, is suggested by the 
above rule itself, which is, that though a 
release be UTider seal, yet its operation is 
not, like that of a bond or of a deed, to 
expose the sejiarate persons and estates 
(real as well as personal) of the partners 
to special and dangerous liabilities. But 
]irobahlj' the true, though technical, foun- 
dation of the rule that one partner may 
bind his firm by a release, under seal, of a 
joint claim, is, that inasmuch as such a 
release is certainly binding on the partner 
who executes it, and inasmuch as he is a 
necessary coplaintiff in any action by the 
firm for the debt released, his release neces- 
sarily operates as a bar to any joint action 
by the partners for the same debt. The 
rule is the same both in law and in equity. 
2 Rol. Abr. 410 (D) ; Tooker's Case, 2 Co. 



68 ; Ruddock's C:ise, 6 Co. 25 ; Periy v. 
Jackson, 4 T. R. 519; Stead ?;. Salt, 10 
J. B. Moore, 393, 3 Bing. 103 ; D. anju- 
endo, Swan v. Steele, 7 East, 211 ; per 
Parke, B., in Adams v. Bankart, 1 Or. M. 
& R. 684, and in Phillips v. Clagett, 11 
M. & W. 84, 94; Pierson v. Hooker, 3 
Johns. 68 ; Bulkley v. Dayton, 14 Johns. 
387 ; Morse v. Bellows, 7 N. H. 567 ; 
United States v. Astle}', 3 Wash. C. C. 
511 ; McBride v. Hagan, 1 Wend. 326, 
337; Napier v. McLeod, 9 Wend. 120; 
Salmon v. Davis, 4 Binney, 375 ; Curtwel, 
V. Brown, 5 Jones, 263 ; [Allen v. Cheever, 
61 N. H. 32 ; Stout v. Ennis Nat. Bank, 

69 Tex. 384, 8 S. W. 808.] Respecting 
deeds of composition, see Watson on Part, 
p. 225 ; Ellison v. Dezell, 1 Selw. N. P. 
(Am. ed.) 385. See Hawksliaw v. Par- 
kins, 2 Swanst. 539, 544 ; Bruen v. Mar- 
quand, 17 Johns. 58 ; Halsey v. Whitney, 
4 Mason, 206, 232 ; Smith v. Stone, 4 Gill 
& J. 310. As one partner may himself re- 
lease a partnership claim, so he may, un- 
der seal, authorize an agent to bind the 
firm by the discharge of a debt due to it. 
Wells V. Evans, 20 Wend. 251, 22 Wend. 
324. Where one partner dul}"^ signed and 
sealed a release of all actions, claims, de- 
mands, &c., but the release did not pur- 
port on its face to ajiply particularly either 
to the separate demands of that partner or 
to those of his firm, it not appearing that 
the releasee was separately indebted to the 
executing paitner, the release was held to 
be a discharge of the debts due the part- 
nership. Emerson r. Knower, 8 Pick. 63. 
And if one partner execute a deed purport- 
ing to release all the joint demands, parol 
evidence that a particular claim was not 
intended to be included is inadmissible. 
Pierson v. Hooker, 3 Johns. 68. 

(/) Lord Kenyon says, in Harrison v. 
Jackson, 7 T. R. 210, that it would be a 
most alarming doctrine to hold out to the 
mercantile world that one partner could 
bind the others by deed ; since it would 



§ 123.] 



RIGHTS AND DUTIES OF PARTNERS. 



153 



as there are very few mercantile transactions in which seals are 
needed or used : and as, if a seal was used when the instrument 
was equally effective without it, the courts regard the seal as 
surplusage only ; (m) and as a subsequent ratification would 



extend to the case of mortgages, and would 
enable a jjartner to give to a favorite credi- 
tor a real lien on the estates of the other 
partners. But tlie reasoning of Jones, 
C. J., on tliis point, in Giam v. Seton, 1 
Hall, 269, seems conclusive : "Negotiable 
papei', by which the partner may bind the 
firm, equally imports a consideration with 
a seal ; and, upon general principles, the 
use of the seal of the cojiartner, ecjually 
with tlie signature of the copartnership, 
would, if permitted, be restricted to copart- 
nership puri)Oses and copartnership opera- 
tions solely ; and the joint deed of the 
copartners executed by the present for the 
absent members, be held competent to con- 
vey or to encumber the copartnership prop- 
erty alone, and to have no operation upon 
the private funds or separate estate of the 
coi)artners. With these restrictions upon 
the use and operation of the seal, is not 
the power of a partner to bind his copart- 
ner, and to charge and encumber his 
estate, as great and as mischievous, with- 
out the authority to use the seal of the 
absent partner, as it would be with that 
authority ? " It is to be remembered, also, 
that the distinction formerly taken between 
debts by specialty and those by simple con- 
tract — by which the former were held to 
be a charge upon the real estate of the 
debtor, wliile the latter were not — is now 
for the most part done away, at least in 
this country. 

(vi) This doctrine has been oftenest 
applied where one partner has transferrnd 
an interest, absolute or qualified, in the 
partnership property. Thus, a general or 
partial assignment for the benefit of credi- 
tors, Anderson v. Tompkins, 1 Brock. 462 ; 
Harrison v. Sterry, 5 Cranch, 289 ; M'Cul- 
lough V. Sommerville, 8 Leigh, 415 ; 
Robinson v. Crowder, 4 McCord, 519 ; 
Deckard v. Case, 5 Watts, 22 ; Hennessy 
V. Western Bank, 6 W. & S. 300, 310 ; 
a mortgage of personal property belonging 
to the firm, Tapley r. Butterfield, 1 ]Met. 
515 ; Milton v. Mosher, 7 Met. 244 ; 
Sweetzer v. Mead, 5 Mich. 10" ; an as.sign- 



ment of a chose in action due to the firm, 
Everit v. Strong, 5 Hill, 163 : these trans- 
actions have all been held valid, notwith- 
standing that the partner, purporting to 
act for his firm, has used a seal therein. 
It has also been held, that a delegation of 
power under seal by one partner to do acts 
which the agent would have been equally 
competent to do, if authorized by parol, 
was not invalid on account of the unneces- 
sary solemnity of the instrument making 
the delegation. Lucas v. Bank of Darien, 
2 Stewart, 280 ; [Boyd r. Thompson, (Pa.) 
25 Atl. 769.] See also Price v. Alexander, 
2 Greene (la.), 427, 433; Purviance i*. 
Sutherland, 2 Ohio St. 478 ; and contra, 
Cummins v. Cassily, 5 B. Mon. 74, 75. 
LTpon the same principle, the case of 
Brutton v. Burton, 1 Chitty, 707, seems 
to have been decided. The doctrine has 
been extended to executory contracts. 
Lawrence v. Taylor, 5 Hill, 107 ; Worrall 
V. Munn, 5 X. Y. 229. See Pike v. Bacon, 
21 Me. 280 ; McWhorter v. McMahon, 1 
Clarke Ch. 400 ; Ruffner v. McConnel, 17 
111. 212, 216; [Sterling v. Bock, 40 Minn. 
11, 41 X. W. 236.] See remarks of Rogers, 
J., in Hennessy a. Western Bank, 6 W. 
& S. 310. The limitation to the doctrine, 
that a transaction by one partner which 
would be binding on the firm without seal 
is not vitiated because a seal is used, is 
thus stated in Lucas v. Bank of Darien, 2 
Stew. 297 : "It is said that even an act 
which would be valid against the firm with- 
out a seal, if done by the partner or by 
agent under a parol appointment, would be 
void if executed by specialty. On this 
point I think a wise discrimination is 
required. I take the distinction to be 
this : that, if the bond or deed constitutes 
the contract, it must be made the evidence 
of it, and determines the remedy. Then 
the principle applies ; because the legal 
effect of the contract, the form of the 
remedy, and the rules of evidence, are 
essentially difTerent, the security being of 
higher dignity." And this is in accord- 
ance with the language of Marshall, C. J., 



154 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



liavc the effect of previous authority ; and as courts of equity, 
and, to some extent, courts of law, place land, when it is part 
of the partnership property (and it is in relation to conveyances 
of land that the seal is most necessary, and most frequently inter- 
feres with the law of ])artnership), on the same footing with 
personal property, — the rule that a partner can athx no seal but 
his own and that of one who has given him authority to do so, 
may perhaps be considered as having now less practical import- 
ance than formerly. 

§ 124. Liability of Partner afBxing Seal for Firm. — Though one 
partner, by the executiun for his copartners and himself of a 
sealed instrument, cannot bind them, yet he always binds him- 
self. This rule is one derived from the law of agency, and 
regards each partner, not as standing for and representing the 
partnership, but as the agent of all his copartners, and conse- 
quently as always making himself liable, when, from want of 
sufficient authority, he fails to bind those for whom he attempts 
to act. (w) 



in Audersoii v. Tompkins, 1 Brock. 462 : 
" No action can be sustained against the 
partner who has not executed the instru- 
ment on the deed of his copartner. Ko 
action can be sustained against the partnei', 
which lests on tlie validity of such a deed 
as to the persou who has not executed it." 
Bewley v. Tams, 17 Pa. 48.5. The doc- 
trire of the court in Purviance v. Suther- 
land, 2 Ohio St. 478, is, that the technical 
rule of the common law is satisfied by 
holding that an agreement under seal in 
the name of tlie firm, which is executed by 
one partner only, is not the deed of the 
partnership. But such an agreement, 
though the deed only of the partner seal- 
ing it, may yet be evidence of a partner- 
ship liability (Fagely v. Bellas, 17 Pa. 67); 
and perhaps the form of the agi'eement 
may raise a presumption that a seal was 
affixed to the contract by mistake. In 
Kentuck)', by statute, promissory notes 



the same effect in every other respect." 
Per Robertson, C. J., in Montgomery v. 
Boone, 2 B. Mon. 244. See Human v. 
Cunitfe, 32 Mo. 316 ; Dubois's Ai)peal, 38 
Pa. 231. But see Schmertz v. Shreeves, 
62 Pa. 457, and Russell v. Annable, 109 
Mass. 72. 

(n) Elliot V. Davis, 2 Bos. & P. 338 ; 
Hawkshaw v. Parkins, 2 Swanst. 543 ; 
Trimble v. Coons, 2 A. K. Marsh. 375 ; 
Williams v. Hodgson, 2 H. & J. 474 ; 
La)-ton V. Hastings, 2 Harr. (Del.) 147; 
Skinner v. Dayton, 5 Johns. Ch. 351, 19 
Johns. 513 ; Clement v. Brush, 3 Johns. 
Cas. 180 ; Gates v. Graham, 12 Wend. 53 ; 
Jackson v. Stanford, 19 Ga. 14. [Weeks 
V. Masconia Rake Co., 58 N. H. 101.] 
See, however, Sellers v. Streator, 5 Jones, 
261 ; also, supra, § 121, note (e). Thus, 
if one onh^ of three partners execute a deeil 
of assignment, purporting to convey all the 
personal propert\- of the three to trusti^es, 



have all the legal effect and dignity of for the benefit of creditors, such a deed 



bonds under seal. Nevertheless, " if a 
y)artner, in executing several notes for a 
debt, in instalments, should happen to 
affix a superfluous scrawl to one of them, 
and omit it as to the others, the first 
might be binding on himself alone, whilst 
the others would bind all the partners ; and 
this would be the only legal effect of the 
scrawl, without which the note would have 



will pass the share of the executing ])art- 
ner. Bowker v. Burdekin, 11 M. & W. 
128. See Dutton v. Morrison, 17 Ves. 193 ; 
Hughes V. Ellison, 5 Mo. 463. But if one 
partner executes a sealed instrument for 
himself and his partners, and suit is 
brought against all, there can be no re- 
covery in that suit against the executing 
partner. Hart v. Withers, 1 Barr. 285. 



§ 125.] 



RIGHTS AND DUTIES OF PARTNERS. 



155 



§125. Power to Confess Judgment. — The Same principles of 
the common law which operate to disable a partner from binding 
his copartners by specialty, must, it should seem, still more com- 
pletely incapacitate him to bind them, without their distinct 
assent, by a voluntary confession of judgment. A fortiori, he 
cannot, by virtue of his implied power, authorize another to do 
it, [as by giving a warrant of attorney for that purpose,] even 
though the authority be not under seal, (a) But if a volun- 
tary judgment be confessed by one partner against his firm, the 
judgment is binding upon that partner, and will not be set aside 
uj)on his aj)plication. Nor will it be altogether set aside upon 
the application of the other partners ; but the court will amend 
the judgment by ordering their names to l)e struck out, and 
otherwise correcting it so that they shall not be bound, or will 
order execution to be served on the ])erson and estate of the 
acting partner only, or that only his several interest in the part- 
nership property shall be sold, (h') 



So, if a partner signs and seals a deed of 
composition in the name and firm of him- 
self and partner, he alone is entitled to 
bring covenant thereon. • Metcalf v. Ry- 
croft, 6 M. & S. 75. See Gates r. Graham, 
12 Wend. 53. By contract under seal, 
purporting to be made between the plain- 
tiffs and the firm of B. & T., the former 
agreed to erect a certain dam for the uses 
of the partnership. The contract was 
signed with the name of the partner- 
ship by B., and a seal affi.ved thereto. It 
was held that B., not having aiithority 
thus to bind his copartners, the firm were 
not liable on the specialty, but were liable 
on an implied promise for the work done, 
and the materials furni.shed by the jilain- 
titfs to their benefit. Van Deusen v. Blum, 
18 Pick. 229. See Sellers v. Streator, 5 
Jones, 261 ; Fox v. Norton, 9 Mich. 207. 
[See on the effect of a deed sealed by one 
partner, Ames, Cas. on Part. 488.] 

(a) Green v. Beals, 2 Caines, 254 ; 
Crane v. French, 1 Wend. 311 ; JIcBride 
V. Hagan, 1 Wend. 335 ; Grazebrook v. 
M'Creedie, 9 Wend. 437 ; Waring v. 
Robinson, 1 Hoflf. Ch. 524 ; Gerard v. 
Basse, 1 Ball. 119 ; McKee v. Bank of Mt. 
Pleasant, 7 Ohio, 175 ; Remington v. 
Cummings, 5 Wis. 138; Hull v. Garner, 
31 Miss. 145; Lagow v. Patterson, 1 
Blackf. 252; Barlow i-. Keno, 1 Blackf. 



252 ; Sloo V. The State Bank of Illinois, 
2 111. 428 ; Waring v. Eobinson, 1 Hoff. 
Ch. 525 ; Harper v. Fox, 7 W. & S. 142 ; 
Bitzer v. Shunk, 1 W. & S. 340 ; Cash v. 
Tozer, 1 W. & S. 519 ; Overton v. Tozer, 
7 Watts, 331 ; Bennett v. JIarshall, 2 
Mills, 436 ; Grier v. Hood, 25 Pa. 430 ; 
]Morgan v. Richardson, 16 Mo. 409; Biiiney 
V. Le Gal, 19 Barb. 592 ; per Wilde, C. J., 
Hainbidge v. De La Crouee, 3 C. B. 744. 
See Brutton v. Burton, 1 Chitty, 707 ; 
Kinnersley v. Mnssen, 5 Taunt. 264 ; 
[Soper V. Fry, 37 Mich. 236 ; Ellis v. 
Ellis, 47 N. J. 69 ; Perth Amboy Terra- 
Cotta Co. V. Wood, 124 Pa. 367, 17 Atl. 
4 ; McCleery v. Thompson, 130 Pa. 443, 
18 Atl. 735. Contra, Wilmot v. The 
Ouachita Belle, 32 La. Ann. 607. Where 
a power to confess judgment need not be 
sealed, a partner binds his firm by giving 
such power. Alexander v. Alexander, 85 
Va. 353, 7 S. E. 335, even though the 
])0\ver is in fact sealed, since the seal may 
be rejected. Boyd v. Thompson (Pa.), 25 
Atl. 769.] 

(h) Motteux V. St. Aubin, 2 W. Bl. 
1133 ; Green v. Beals, 2 Caines, 254 ; 
Crane v. French, 1 Wend. 311; St. John 
V. Holmes, 20 Wend. 609 ; Gerard v. 
Basse, 1 Dall. 119 ; Bitzer r. Shnnk, 1 W. 
& S. 340 ; Harper v. Fox, 7 W. & S. 142 ; 
Morgan v. Richardson, 16 Mo. 409. See 



156 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



§ 126. Representations or Admissions of a Partner. — As a part- 
ner may act for his firm by his general authority, so, as we have 
ah-eady seen, his representations, acknowledgments,, admissions, 
part payments, notice given or received, and all other doings on 
which rights or obligations may be founded, are binding upon the 
partnership : always, however, with the qualification that these 
things belong fairly and actually to the bnsincss of the firm; for 
this is a condition which universally limits his power. Thus, it 
was once quite uncertain what was the effect of an acknowledg- 
ment, by a partner, of a debt barred by the statute of limitations. 
It was held to bind the firm as long as this statute was regarded 
as founded on presumption of payment. Whether there had been 
such payment was perfectly well known to every partner, and 
known to each one after a dissolution as well as before. Conse- 
quently, if a partnership owed a debt, and was dissolved, and the 
debt ran on more than six years, and then one of the former 
partners acknowledged the debt, this removed the presumption of 
payment, and all the partners became bound, (n) 



Gi-ier v. Hood, 25 Pa. 430 ; Smith v. 
Tupiier, 4 Sm. & M. 261 ; Overton v. 
Tozer, 7 Watts, 331 ; ('ash v. Tozer, 1 W. 
& S. 519. See Sloo v. State Bank of 
Illinois, 2 111. 428. A, a member of a 
firm, confessed judgment against himself 
for a firm debt. It was held that the 
partnership property might be levied on 
to satisfy this judgment. Ross v. Howell, 
84 Pa. 129. 

(k) The different views taken at differ- 
ent periods by the courts of the statute of 
limitations are stated in all the element- 
ary treatises upon the subject. See 3 
Parsons on Contracts, 61, 67 ; Angell on 
Limitations, ch. 20 and 23. The earliest 
decisions of all seem to indicate that the 
statute was at first regarded as a statute of 
repose. But this view soon gave way to 
another, which construed the statute as one 
of presumption entirely ; rendering it prob- 
able that the barred debt had been paid, 
but leaving this presumption liable to 
rebuttal by anything amounting to proof 
that the debt was in fact unsatisfied. It 
is true, that, to recover upon a claim 
against which the statute had run, there 
was required not only satisfactory evi- 
dence of the existence of the debt, but 
also a new promise. But if the continued 
existence of the debt was proved by the 
acknowledgment or admission of the 



debtor, or by any thing amounting thereto, 
then the plaintiff was not required to go 
furthei-, but might rest his case upon pmof 
of the acknowledgment or admission, and 
the law would imply therefrom the neces- 
sary promise. While the statute of lim- 
itations was regarded in this light, the 
effect of an acknowledgment by one of 
several joint debtors, that a joint debt 
barred by the statute was still unsatisfied, 
came before Lord Mansfield, in the case 
of Whitcomb v. Whiting, 3 Doug. 652 ; 
and it was there decided that the acknowl- 
edgment of one must be taken as the 
acknowledgment of all ; then, all having 
admitted their joint indebtedness, the law 
raises the new promise. 

As to the support which the case de- 
rives from other adjudications, it has some- 
times been supjiosed to be inconsistent 
with the earlier case of Bland v. Haselrig, 

2 Vent. 1.52. See Atkins r. Tredgold,"2 
B. & C. 28, opinion of Abbott, C. J. 
But, besides the facts that the latter case 
cannot be regarded as of nuich authority, 
and can best be explained in a manner 
which leaves it in no way contradictory 
(see note in 3 Doug. 653 ; remarks of 
Best, C. J., in Perham v. Raynal, 2 Bing. 
309 ; of Parker, C. J., in White v. Hall, 

3 Pick. 293 ; of Story, J., in Bell r. Mor- 
rison, ] Pet. 367), AVhitcomb v. Whiting 



§ 127.] 



RIGHTS AND DUTIES OP PARTNERS. 



157 



§ 127. Acknowledgment removing Bar of Statute of Limitations. 
— But when the statute of limitations came to be looked upon, us 



has been constantly actcil upon as sound 
law in the Englisli courts ; Jiut always, 
however, we think, upon precisely the 
same ^'rounds. So long as the statute of 
limitations was regarded as one of pre- 
sumption merely, Whitcomb v. Whiting 
might be, as it was, literally followed. 
Its doctrine was pushed to its utmost lim- 
its in Jackson v. Fairbank, 2 H. Bl. 340. 
There, one of two makers of a joint and 
several promissory note having become 
bankru^Jt, the payee received a dividend 
under the comnussion, on account of 
the note, within six years before action 
brought. It was held, that the payment 
of such dividend was such an acknowledg- 
ment of the del)t as took the case out of 
the statute of limitations as to the other 
maker. This last case, and the whole 
doctrine of Whitcomb v. Whiting, were, 
it is true, strongly questioned in Brnn- 
drum V. Wharton, 1 B. & Aid. 463. So 
also in Atkins v. Tredgold, 2 B. & C. 23, 
where, one of two makers of a joint and 
several promissory note having died, it 
was held, that the payment of interest 
within six years by the other maker would 
not take the case out of the statute, as 
against the executors of the deceased prom- 
isor. But in Perham v. Kaynal, 2 Bing. 
306, where the two cases just mentioned 
are considered, Whitcomb v. Whiting was 
explicitly denied to be in any way im- 
pugned by them, and was expressly af- 
firmed as good law. See Halliday v. 
Ward, 3 Camp. 32. 

The cases we have just been consider- 
ing were all adjudged while the statute of 
limitations was still regarded as a statute 
of presumption, Perham v. Raynal being 
decided in 1824. In little more than a 
year after, Court v. Cross, 3 Bing. 329, 
was adjudged in the Common Pleas, and 
■was the first case in which a decided stej) 
was taken towards construing the statute 
of limitations as a statute of repose. C. J. 
Best, who then delivered the opinion of 
the court, reasserted this view of the stat- 
ute in Scales v. Jacob, 3 Bing. 652. The 
position he assumed was adopted and 
confiimed by Lord Chief Justice Tenter- 
den, in Turner v. Smart, 6 B. & C. 603 ; 



and thenceforward the statute of limita- 
tions has been invariably regarded and 
construed as a statute of repose. The 
earlier doctrine was also applied to pay- 
ments of interest, made by one of the 
makers of a joint and several promissory 
note, though more than six years after it 
became due. They were held to take the 
case out of the statute, as against the 
other maker. Manderston v. Robertson, 
4 Man. & Ry. 440 ; Channell v. Ditch- 
burn, 5 M. & W. 494. But, in such case, 
the payment or payments must be dis- 
tinctly shown to be made on account of 
the particular debt. Holme v. Green, 1 
Stark, 488. So, where A. & B. made a 
joint and several promissory note, B. 
being merely a surety, a part payment by 
A., within six years and during the life- 
time of B., was held to take the case out 
of the statute so as to make B.'s admin- 
istrator liable on the note. Burleigh v. 
Stott, 8 B. & C. 36. See Perham v. Ray- 
ual, 2 Bing. 306; Wyatt v. Hodson, 8 
Bing. 309. And where one of three joint 
contractors, more than six years after the 
contracting of the oiiginal debt, but within 
six years of the action brought, made a 
payment on account of a joint debt, but 
in fraud of his co-contractors, it was 
nevertheless held to bar the operation of 
the statute as against the other two. 
Goddard v. Ingram, 3 Q. B. 839. See 
Martin v. Brydges, 3 C. & P. 83. But, as 
we have already seen, payment of interest 
by one or two makers of a joint and sev 
eral promissory note, after the death o? 
the other, will not take the case out o'. 
the statute, as against the executor of W\f 
deceased maker, Atkins v. Tredgold, J 

B. & C. 23. See Ault v. Goodiich, 4 
Russ. 430 ; Way v. Bassett, 5 Hare, 55 ; 
the principle being that the joint contract 
is determined by the death of one of the 
joint contractors ; nor after the death of 
one of two joint contractors will a pay- 
ment on joint account by the executor of 
the deceased take a debt out of the statute, 
as against the survivor. Slaters. Lawson, 
1 B. & Ad. 396. See Gittin v. Ashby, 2 

C. & K. 139. See further, in confirmation 
of the general principle, Rew v. Pettet. 1 



158 



THE LAW OF PARTNERSHIP. 



[CH. YII. 



it now is universally, as a statute of repose and not of presump- 
tion, and as resting on the principle that the courts should not 



A. & E. 196; Pease V. Hirst, 10 B. &C.122; 
Clark V. Hoojier, 10 Biijc?. 460 ; rhtchuid 
V. Draper, 1 Russ. & Myl. 191. 

Respecting ackiiowledgineuts or prom- 
ises by words only, the question is ]nit at 
rest in England by Lord Teuterden's act 
(9 Geo. 4, ch. 14), which, after reciting 
21 Jac. 1, ch. 16, and the Irish act of 10 
Car. 1, sess. 2, ch. 6, declares: "that 
where there shall be two or more joint 
contractors, or executors, or administra- 
tors of any contractor, no such joint con- 
tractor, executor, or administrator, shall 
lose the benefits of the said enactments, 
or either of them, so as to be chargeable 
in respect or by reason only of any written 
acknowledgment or promise made and 
signed by any other or others of them." 
But, with respect to admissions by pay- 
ments, the same statute provides " that 
nothing therein contained shall alter, take 
away, or lessen the effect of any payment 
of any principal or interest, by any per- 
sons whatsoever," The effect of this 
proviso is, to leave the effect of past pay- 
ment of principal or interest, by one of 
several joint debtors, the same as before 
the passage of the statute ; and the reason 
for it is said by Chief Justice Tindal in 
Wyatt V. Hodson, 8 Bing. 312, to be, 
"Because the payment of principal or 
interest stands on a different footing from 
the making of promises, which are often 
rash or ill interpreted ; while money is 
not usually paid without deliberation, 
and payment is an unequivocal act, so 
little liable to misconstruction as not to 
be open to the objection of an ordinary 
acknowledgment." Chippendale v. Thur- 
ston, 4 C. & P. 98 ; 1 Moo. & M. 411 ; 
Waters v. Tompkins, 2 C, M. & R. 723. 
The principle, then, being established 
in the English law, that an acknowledg- 
ment by one of several joint debtors of 
the existence of a joint debt will operate 
as a new promise by all to pay, which 
principle is. however, by statute limited 
in its application to acknowledgments by 
past payments, we may next inquire 
what is the effect in the English law of a 
payment by one of several partners of 
principal or interest on account of a part- 



nership debt, after the firm has been dis- 
solved. It seems to be settled in England 
that one partner may, after dissolution, 
impose a fresh charge upon his copartners, 
by a payment of princi[ial or of interest, 
on account of an unliquidated partnership 
debt barred by the statute of limitations. 
Two reasons seem to be given for this 
doctrine. In the first place, jiartners 
after dissolution, being still jointly liable 
for the partnership debts, are still regarded 
as joint debtors, and therefore within the 
rule of Whitcomb v. Whiting. Further- 
more, it was decided in Wood ?\ Braddick, 
1 Taunt. 104, that an admission by one 
of two pai'tners, after the dissolution 
of the ]iartnership, concerning joint con- 
tracts made during the partnership, is 
competent evidence to charge the other 
partner. In Pritchard v. Draper, 1 
Russ. & Myl. 191, 199, Lord Chancel- 
lor Brougham asserted the same doc- 
trine ; and it being objected that the 
declarations of one partner after dissolu- , 
tion as to a fact relating to partneiship 
transactions, but which fact also took 
place after dissolution, were not admis- 
sible evidence against the other paitner, 
he said: "The partnership, it is true, had 
ceased ; but so, in Whitcomb v. Whiting, 
had the connection between the two mak- 
ers of the promissory note. And in God- 
dard v. Ingram, 3 Q. B. 839, where one 
of several jiartners, after the dissolution 
of his firm and more than six years after 
the incurring of the original debt, but 
within six years of the bringing of the 
action, had made a part payment on ac- 
count of it, which the jury found to be 
fraudulent upon his copartners, it was 
held, nevertheless, that the payment 
barred the operation of the statute." 

Such seems to be the state of the 
English law upon this subject. With 
respect to the law of this countrj', as we 
have before said, it seems to be settled, 
generally, and perhaps universally, that 
the statute of limitations is one of repose, 
and not one of presumption. Whitcomb 
V. Whiting, as above explained in connec- 
tion with the statute of limitations, has 
also been followed in many authoritative 



§ 127] 



RIGHTS AND DUTIES OF PARTNERS. 



159 



enforce an unpaid debt, if it were old and stale, then the bar of 
the statute could only be removed by a new promise ; that is, the 
old debt could not itself be demanded, but it was a good consid- 
eration for a new promise ; and, if this were made, it could be 
enforced. But the question then is. Who makes it ? And this 
will depend upon whether the partnership is still in existence, or 
has been dissolved. If it still exists, the partner making the 
promise has a right to make it for his copartners and himself, 
and it is then the promise of the whole partnership.^ But, if the 
])artnership be dissolved, his authority has wholly gone, and the 
new promise which he makes is his own only.^ The cases are 



cases, and its principle applied to all 
kinds of acknowledgments and admissions, 
except where in England its operation 
has been restricted by express enactment. 
Thus in the New England States, with 
the exception of New Hampshire, the 
doctrine of that case has been uniformly 
approved. Getchell v. Heald, 7 Me. 26 ; 
Pike V. Warren, 15 Me. 390 ; Dinsmore 
V. Dinsmore, 21 Me. 433 ; Shepley v. 
Waterhouse, 22 Me. 497 ; Martin v. Root, 
17 Mass. 227 ; Cambridge v. Hobart, 10 
Pick. 232 ; Ilsley v. Jewctt, 2 Met. 168 ; 
Wheelock v. Doolittle, 18 Vt. 440; Joslyn 
V. Smith, 13 Vt. 3.53 ; Turner v. Ross, 1 
R. I. 83 ; Bound v. Lathrop, 4 Conn. 336; 
Coit V. Tracy, 9 Conn. 1. So also in 
Virginia, Shelton v. Cocke, 3 Munf. 191 
(see Farmers' Bank v. Clarke, 4 Leigh, 
603); in South Carolina, in the early cases, 
Beitz V. Fuller, 1 McCord, 541 ; Fisher v. 
Tucker, 1 McCord, Ch. 169 ; which are, 
however, now overruled ; in North Caro- 
lina, Davis V. Coleman, 7 Ired. 424 ; in 
Pennsylvania, Zent v. Heart, 8 Barr, 337, 
overruling prior case ; in New York, in 
some of the early decisions, which, how- 
ever, have since been overruled, see Smith 



V. Ludlow, 6 Johns. 257 ; Johnson v. 
Beardslee, 15 Johns. 3. The rule of Whit- 
comb V. Whiting, as in England, has also 
been fre<[uently apjdied in this country to 
the case of a joint and several promissory 
note, made by two or more parties, but 
by some of them only in the character of 
surety. Hunt v. Bridgham, 2 Pick. 581 ; 
Sigourney v. Drury, 14 Pick. 387 ; Shepley 
V. Waterhouse, 22 Me. 497 ; Joslyn v. 
Smith, Vt. 356 ; Clark v. Sigourney, 17 
Conn. 511 ; Caldwell v. Sigourney, 19 Conn. 
37 ; Zent v. Heart, 8 Barr. 337. And in 
Fisher v. Tucker, 1 McCord Ch. 169, and 
Hathaway v. Haskell, 9 Pick. 42, it is 
held, in accoidance with Atkins v. Tred- 
gold, and Brandrum i-. Wharton, supra, 
that, one of two joint debtors dying, 
neither the survivor nor the representa- 
tives of the deceased can, as against each 
other, by their acknowledgments, part 
payment, &c., take the debt out of the 
statute. See also Roosevelt v. Mark, 6 
Johns. Ch. 266, 291, 292. [For the pres- 
ent state of the law ou this point, see 
post, § 128, n. 2.] 



1 Acknowledgment before dissolution. — Before dissolution, an acknowledgment by 
one partner will bind the firm. Watson v. Woodman, L. R. 20 Eij. 721, 730 (semhJe 
but see Goodwin v. Parton, 41 L. T. Rep. 91, 42 L. T. Ref>. 568) ; Sears i;. Starbird, 
78 Cal. 225, 20 Pac. 547 ; Tate v. Clements, 16 Fla. 339 ; Abrahams v. Myers, 40 Md. 
499 ; Faulkner v. Bailey, 123 Mass. 588 (semblc) ; Harding v. Butler, 156 Mass. 34, 
30 N. E. 168 ; Kenniston v. Avery, 16 N. H. 117 ; Tappan v. Kimball, 30 N. H. 136 ; 
Wood V. Barber, 90 N. C. 76 (semble) ; Carlton v. Coffin, 28 Vt. 504 ; Walker i;. Wait, 
50 Vt. 668. 

2 Acknowledgment after dissolution. — In America there is much confusion in the 
authorities on this point. The better view would seem to be, that after dissolution the 
power of a partner to bind his copartner has ceased, and an acknowledgment of a pre- 



160 THE LAW OF PARTNERSHIP. [CH. VII. 

very numerous in which these questions are raised ; and we 
endeavor to exhibit in our notes the principal authorities. It 

existing firm delit, by a ])artiiil jiayiiK^iit or a new promise, will not, raise the bar of 
the statute against the jiartners who take no part in it. Bell v. Morrison, 1 I'et. 351 : 
Bispham v. Patterson, 2 McLean, 87 ; Cronkhite v. Herrin, 15 F. R. 888 ; Wilson v. 
Torbert, 3 Stew. 296 ; Myatts v. Bell, 41 Ala. 222 ; Espy v. Comer, 76 Ala. 501 ; Curry 
V. White, 51 Cal. 530 ; Sears v. Starbird, 78 Cal. 225, 20 Pac. 547 ; Tate v. Clements, 
16 Fla. 339 ; Kallenbach v. Dickinson, 100 111. 427 ; Yandes v. Lefavour, 2 Blackf. 
371 ; Kirk v. Hiatt, 2 Ind. 322 ; Peirce v. Tobey, 5 Met. 168 ; Sigler v. Piatt, 16 Mich. 
206 ; Gates v. Fisk, 45 ilich. 522, 8 N. W. 558 (semble) ; Mayberry v. Willonghby, 5 
Neb. 368 ; Mann «. Locke, 11 N. H. 246 ; Tappan v. Kimball, 30 N. H. 136 ; Van 
Keuren v. Parmelee, 2 N. Y. 523 ; Shoemaker v. Benedict, 11 N. Y. 176 ; Payne v. 
Slate, 39 Barb. 634 ; Graham v. Selover, 59 Barb. 313 ; Kerper v. Wood, 48 Oh. St. 
613, 29 N. E. 501 ; Belote v. Wynne, 7 Yerg. 534 ; Muse v. Donelson, 2 Humph. 166 ; 
Folk V. Russell, 7 Baxt. 591 ; Haddock v. Crocheron, 32 Tex. 276 ; Conrad v. Buck, 
21 W. Va. 396. 

In some authorities however a distinction is made between acknowledgments made 
before and those made after the statutory period has run. After the statutory ])eriod 
has run, these authorities hold that the firm is not bound, because to hold it bound 
would give to a partner after dissolution the power to charge his copartner with a new 
debt. Merrit v. Pollys, 16 B. Mon. 355 ; EUicott v. Nichols, 7 Gill, 85 ; Newman v. 
McComas, 43 Md. 70 ; Whitney v. Reese, 11 Minn. 138 ; Steele f. Jennings, 1 McMull. 
297. But if the acknowledgment is made by a partner before the statute has run, though 
after dissolution it binds all the partners. Burr t'. Williams, 20 Ark. 171 ; Austin y. 
Bostwick, 9 Conn. 496 ; Bissell v. Adams, 35 Conn. 299 ; Beardsley v. Hall, 36 Conn. 
270 ; Brewster v. Hardeman, Dudley (Ga.), 138 ; Tillinghast v. Nourse, 14 Ga. 641 ; 
Parker v. Moore, 2 La. Ann. 1017 ; Carroll v. Gayarre, 15 La. Ann. 671 ; Greenleaf v. 
Quincy, 12 Me. 11 ; Schindel v. Gates, 46 Md. 604; White v. Hale, 3 Pick. 291 ; 
McClurg V. Howard, 45 Mo. 365 ; Merritt v. Day, 38 N. J. 32 ; Casebolt v. Ackerman, 
46 N. J. 169. 

In a few jurisdictions it has been held that even if made after the statute has run, 
an acknowledgment by one partner after dissolution binds all the partners. Mclntire v. 
Oliver, 2 Hawks, 209 ; Willis v. Hill, 2 Dev. &B. 231 ; Walton v. Robinson, 5 Ire. 
341 (nullified by statute ; Wood v. Barber, 90 N. C. 76) ; Turner v. Ross, 1 R. I. 88 
(semble) ; Beitz v. Fuller, 1 McC. 541 ; Veale v. Hassan, 3 McC. 273 ; Wheelock v. 
Doolittle, 18 Vt. 440 ; Carlton v. Ludlow Woolen Mill, 28 Vt. 504 ; Mix v. Shattuck, 
50 Vt. 421 ; Shelton v. Cocke, 3 Munf. 191 ; Brockenbrough v. Hackley, 6 Call, 51. 

In Pennsylvania, it is held that an acknowledgment by the liquidatinci jmrtner will 
remove the bar of the statute. Houser v. Irvine, 3 W. & S. 345 ; Campbell v. Floyd, 
(Pa.), 25 Atl. 1033. But when the acknowledgment is by any other than the liqui- 
dating partner, it does not affect copartners. Levy v. Cadet, 17 S. & R. 126 ; Cole- 
man V. Fobes, 22 Pa. 156 ; Reppert v. Colvin, 48 Pa. 248 ; Wilson v. Waugh, 101 Pa. 
233 ; Kauffman v. Fisher, 3 Grant, 302. 

If however the creditor had no notice of the dissolution the acknowledgment by one 
partner binds all. Sage v. Ensign, 2 All. 245; Buxton v. Edwards, 134 Mass. 567; 
Kenniston v. Aveiy, 16 N. H. 117 ; Tappan v. Kimball, 30 N. H. 136 ; Clement v. 
Clement, 69 Wis. 599, 35 N. W. 17. 

An individual promise by one partner to pay the debt does not remove the bar of 
tlie statute against the firm. Ford v. Clark, 72 Ga. 760 ; Stewart's Appeal, 105 Pa. 
307. 

It is to be added that, in a number of the States (and the number is increasing), 
statutes similar to 9 Geo. 4, ch. 14, have rendered the acknowledgment of one joint 
contractor insufficient to take any case out of the statute of limitations as to his 
co-contractors. Generally, as in the English statute, though not uniformly, an excep- 



§ 128.] RIGHTS AND DUTIES OF PARTNERS. IGl 

will be seen that in these cases, not only the general question of 
the authority of the partner Is considered, but the particular 
questions which occur when the new promise is made, if at all, 
not only by an acknowledgment, but, m the absence of this, by 
part payment of the j)rincii)al or of the interest. 

§ 128. Admissions after Dissolution. — A similar principle deter- 
mines all the questions raised by the acts of one partner. If the 
partnership has ceased, his authority has gone, unless he derives 
it from his power to settle the estate as surviving partner, or in 
some other especial manner. That is, he can no longer make a 
new promise, which shall be their promise as well as his. But it 
does not follow that his admissions and acknowledgments, as 
those of one well acquainted with the facts, especially if they are 
against his interest, should not be received as determining a 
question, not of future promise, but of a past fact. We cannot 
but think, however, that the true principle which should decide 
this much-vexed question, must be this : After a dissolution, 
however caused, the new words and acts of those who were part- 
ners shall have no effect upon the rights or obligations of their 
former copartners, excepting so far as these words and acts 
fairly belong to the settlement of the concern, and the power 
which each partner has in winding it up.^ 

tion is niadft of an acknowledgment by part payment. See Mass Pub. Stat. ch. 197, 
§ 17 ; Williams v Gridley, 9 Met. 482 ; Maine Rev. Stat ch. 146, § 27 ; Sibley v. 
Lambert, 30 Me. 253 ; Vt. Gen. St. ch. 63, §§ 23, 28 ; Carlton v. Ludlow Woolen 
Mill, 27 Vt. 496 ; Caldwell v. Lawrence, 20 Ga. 94 ; Fonte v. Bacon, 24 Mi.ss. 156 ; 
Briscoe v. Anketell, 28 Miss. 361 ; Webster v. Stearns, 44 N. H. 498 ; Griswold v. 
Haven, 25 N. Y. 595. Such a statute has been passed in Michigan. Gates v. Fisk, 
45 Mich. 522, 8 N. W. 558. A debj; may become barred, by the statute of limitations, 
as to one member ot a partnership in the State, and not as to those out of the State. 
Spaulding v. Ludlow Woolen Mill, 36 Vt. 150. 

Of course, any partner who authorizes or ratifies the acknowledgment is bound by 
it. Wilson V. Waugh, 101 Pa. 233. 

This (question has been held to be governed by lex fori ; consequently an acknowL 
edgment made by a partner in a juri.sdiction where it is held to bind the firm will not 
aft'ect the limitation in another jurisdiction where it is held not to bind the firm. 
Kerper v. Wood, 48 Oh. St. 613, 29 N. E. 501. 

See a very valuable note upon this subject, Ames, Cas. Part. 618. 

^ Admissions after dissolution, — The authorities upon this ]5oint are in hopeless 
conflict. One line of decisions follows the case of Wood v. Braddick, 1 Taunt. 104. 
This was an action brought to recover from the defendant the [)roceeds of certain lin- 
ens, which the bankrupts, in the year 1796, had consigned for sale in America, as the 
jplaintiffs alleged, to the defendant, jointly with one Cox, who was then his partner, 
but, as the defendant contended, to Cox only. The defendant pleaded the general 
issue, and the .statute of limitations. At the trial at Guildhall, before Jlansfield, C. 
J., the plaintiffs i>roduced in evidence a letter from Cox, dated the 24th of June, 1804, 
stating a balance of 919/. to be then due to the bankiupts u]>on this consignment. It 
was in proof that on the 30th of July, 1S02. Braddick & Cox dissolved their partner- 

11 



162 THE LAW OF PARTNERSHIP. [CH VII, 

§ 129. Admissions before Dissolution. — If the partnership exists, 
the question then is, Do the act or the words refer to the business 

ship, as from the 17th of November, 1800. Cockell & Lens, Sergeants, objected, that 
this letter, being written after the dissolution of the partnership, was not aihnissible 
evidence to charge Braddick. The Chief Justice overruled the objection, but 
reserved the point ; and the jury, being of opinion that the agency was undertaken by 
Cox on the iiartuersliip account, found a verdict for the plaintiff. Mansfield, C. J. : 
*' Clearly the admission of one partner, made after the partnership has ceased, is not 
evidence to charge the other, in any transaction which has occurred since their separa- 
tion ; but the power of partners, with respect to rights created pending the partner- 
ship, remains after the dissolution. Since it is clear that one partner can bind the 
other during all the partnership, upon what principle is it, that, from the moment 
when it is dissolved, his account of their joint contracts should cease to be evidence ; 
and that those who are to-day as one person in interest should to-morrow become 
entirely distinct in interest with regard to past transactions which occurred while they 
were so united ?" 

Heath, J.: " Is it not a very clear pro))osition, that when a partnership is dissolved, 
it is not dissolved with regard to things i)ast, but only with regard to things future ? 
With regard to things past, the partnership continues, and always must continue." 

The i)rincii)le of Wood v. Biaddick is affirmed in Pritcliard v. Draper, 1 Russ. & 
M. 191, where it was held, that the declaration of one of two partners, that, subse- 
quently to dissolution, a debt due to the jiartnership had been paid, was admissible as 
evidence against the other partner. See Goddard v. Ingram, 3 Q. B. 839; Lacy r. 
M'Xeile, 4 Dow. & R. 7, 9. See also Parker v. Morrell, 2 C. & K. 599, where it was 
held, that the answer in chancery of one who had been a partner in a firm, but who 
had retired from the lirm and ceased to have any interest in it ])efore the commence- 
ment of the suit, is not admissible in evidence against the continuing partners of the 
firm, although it relates to transactions which occurred with the hrm at the time 
when the retired partner was a member of it. The doctrine of Wood v. Braddick is 
maintained in many American cases. Reimsdyk v. Kane, 1 Gall. 630, 636 {scmbU); 
Austin V. Bostwick, 9 Conn. 496 : Taylor v. Hillyer, 3 Blackf. 433 (scmblc); Kirk v. 
Hiatt, 2 Ind. 322 ; Parker i\ Merrill. 6 Me. 41; Cady v. Shepherd, 11 Pick. 400 ; Bridge 
V. Gray, 14 Pick. 5.5 ; Vinal v. Burrill, 16 Pick. 401; Gay v. Bowen, 8 Met. 100 ; Ide 
V. Ingraliam, 5 Gray, 106 ; Buxton v Edwards, 134 Mass. 567 ; Pennoyer r. David, 8 
Mich. 407 ; Mann v. Locke, 11 N. H. 246 ; Rich v. Flanders, 39 N. H. 304 ; Merritt 
V. Day, 38 N. J. 32 ; McElroy v. Ludlum, 32 N. J. Eip 828 (but see Flanagin r. 
Champion, 1 Green Ch. 51); Myers v. Standart, 11 Oh. St. 29 ; Feigley v. Whitaker, 
22 Oh. St. 606; Fripp i). Williams, 14 S. C. 502 (see the earlier cases, Simpson v. 
Geddes, 2 Bay, 533 ; Kendrick v. Campbell, 1 Bail. 522 ; Meggett v. Finney, 4 
Strobh. 220); Woodworth r. Downer, 13 Vt. 522; Loomis v. Looniis, 26 Vt. 198; 
Garland v. Agee, 7 Leigh, 362. 

In oi)position to this view of the power of one partner after dissolution, it is held 
by weighty authorities in this country, that, when a partnership ceases to exist, the 
power of each partner wholly ceases also ; so that, unless he have special authority, 
his acts, declarations, &c., even when they relate to past partnership transactions, are 
utterly inadmissible as against his firm. Judge Story, who takes this view, says it 
seems difficult upon principle to perceive how the acts, declarations, &c., of one jmrt- 
ner after dissolution can be binding upon his partnership "any more than the decla- 
ra'ions, or acts, or acknowledgments of any other agent of the partnership would be, 
after his agency had ceased. In the latter case, they are constantly held inadmissible 
by the courts of common law, upon grounds which seem absolutely iriesistible." 
Story on Part. § 323. Bell v. Morrison, 1 Pet. 351. 373 (semhle): Thompson v. 
Bowman, 6 Wall. 316 ; Bis]>ham v. Patterson, 2 McLean, 87 : Barringer v. Sneed, 3 
Stew. 201; Demott v. Swaim, 5 Stew. & P. 293; Burns v. McKenzie, 23 Cal. 101; Miller ». 



129.] 



RIGHTS AND DUTIES OP PARTNERS. 



163 



an 



of the partnership ? If so, it binds the firm, {q) Thus, 
ahnission, by one partner (the partnership or joint liability hav 
ing been proved or admitted), of a fact bearing on the issne of a 
case at bar, is admissible evidence, (r) The partnership being 



(7) Thus Abbott, G. J., in Saiidilands 
V. Marsh, 2 U. & Aid. 678 : " But the 
true coiistructiou of the rule is this, that 
the act and assurance of one partnei', made 
with reCerence to business transacted by 
the firm, will bind all the partners." Rapp 
V. Latham, 2 15. & Aid. 795, 801 ; Lacy v. 

M'Neile, 4 Dow. & K. 7. See also v. 

Layfiuld, 1 Salk. 292, and French f. Rowe, 
15 Iowa, 563. 

(r) The declarations of one partner are 
of course, as a general rule, admissible in 
evidence, only when they are admissions, 
and are supposed to have been made 
acrainst the interests of the party and of 
his firm. Independently of statutes, they 
are comjietent to charge, but not to exon- 
eratfs the partnershii). Hence, in a suit 
against A. & B. as partners, the declara- 
tions of A. are inadmissible in behalf of 



B. to disprove the partnership alleged. 
Young V. Smith, 25 Mo. 341 ; Clark v. 
Huffaker, 26 Mo. 264. See Danforth v. 
Corter, 4 la. 230. 

[So where the defendant had a claim 
against two members of a firm, and they 
repiesented themselves as the only part- 
ners ; the defendant, having dealt with 
the firm, could not on account of ' the 
representation set off against his debt to 
the firm the debt owed to him by the two 
j)artners. Rush v. Thompson, 112 Ind. 158, 
13 N. E. 665.] 

But before one partner's acknowledg- 
ments can thus be admitted to attect others 
as copartners, a joint liability must be 
shown. A priina facie case of partner- 
ship, at least, must be made out. Nicliolls 
V. Dovvding, 1 Stark. 81 ; Gray v. Hodson, 
I Esp. 135 ; Grant v. Jackson, Peake, 203 ; 



Neimerick, 19 111. 172 : Winslow v. Newlan, 45 111. 145 ; Walker v. Duberry, 1 A. 
K. Marsh. 189 ; Craig v. Alverson, 6 J. J. Marsh. 609 ; Bentley v. White, 3 B, Mon. 
263; Daniel 0. Nelson, 10 B. Mon. 316; Hamilton v. Summers, 12 B. Mon. 11; Lambeth 
v. Vawter, 6 Kob. (La.) 127 ; Conery v. Hays, 19 La. Ann. 325 ; Owings v. Low, 5 
Gill & J. 134 ; National Bank of Commerce v. Meader, 40 Minn. 325, 41 N. W. 
1043 ; Maxey v. Strong, 53 Miss. 280 (but see Curry v. Kurtz, 33 Miss. 24); Brady v. 
Hill, 1 Mo. 315 ; Pope v. Risley, 23 Mo. 185 ; Dowzelot r. Rawlings, 58 J\Io. 75 ; 
Hackley v. Patrick, 3 Johns. 536 ; Walden v. Sherburne, 15 Johns. 409 ; Hopkins v. 
Banks, 7 Cow. 650 ; Gleason v. Clark, 9 Cow. 57 ; Baker v. Stack^wole, 9 Cow. 420 ; 
Mercer v. Sayer, Anth. N. P. 162 ; Van Keuren v. Parmelee, 2 N. Y. 523, 530 ; 
Nichols i\ White, 85 N. Y. 531 ; Bank of Vergennes v. Cameron, 7 Barb. 143 ; Tas- 
.sey r. Church, 4 W. & S. 141 ; Hogg v. Orgill, 34 Pa. 344; Crumless v. Sturgess, 6 
Heisk. 190; Hawkins u. Lee, 8 Lea, 42; Kootes v. Wellford, 4 Munf. 215. After a 
partner has ceased to have any interest in the firm, his declarations charging the firm 
cannot be received against his copartner ; being realh' in his own interest, not against 
it. So the admission of a partner after a discharge in bankruptcy cannot be used 
against a firm. Parker v. Morrell, 2 Ph. 453, 2 C. & K. 599 ; Grant v. Jackson, Peako 
N. P. 203. P>ut, if a partner has not received his certificate of discharge, his admission 
will bind his co[>artners, though made after his bankrujitcy. Grant v. Jackson, Peaki^, 
203. See Boyce v. Watson, 3 J. J. Marsh. 498 ; Howard v. Cobb, 3 Daj', 309 ; 
3Iartin v. Root, 17 Mass. 227. Nor can the admission of a partner after he has as- 
signed all his interest in the firm be received to charge the firm. Jeffries v. Castleman, 
75 Ala. 262 ; Gillighan v. Tebbetts, 33 Me. 360; Hatheway's A])pea'i, 52 Mich. 112. 
Whether the fact that the declarations were made to one who had no notice of dis- 
solution would affect the question is not clear. It is held in New York that it would 
not. Brisban v. Boyd, 4 Paige, 17; Williams v. Manning, 41 How. Pr. 454; Piingle 
V. Leverich, 97 N. Y. 181. But the opposite opinion has been held. Spears v Toland, 
1 A. K. Marsh. 203 ; Myers v. Standart, 11 Oh. St. 29. 



164 



THE LAW OP PARTNERSHIP. 



[CH. VII. 



proved aliunde^ entries of account made by one partner during 
the existence of the firm are admissible evidence to cliarge 
all. {f) So notice or knowledge of any one partner is notice or 
knowledge affecting all the rest, or rather the partnership as a 
whole ; (m) and such notice, even if coupled with a demand, as 



Reimsa.vk v. Kane, 1 Gall. 635 ; Teller v. 
Muir, 2 Peimiiigtoii, 548 ; Robbiiis v. 
■Willaid, 6 Pick. 464 ; Corps v. Robinson, 
2 Wash. L'. C. 3S8 ; Harris v. Wilson, 7 
Wend. 57 ; Buekiiani v. Barnain, 15 Conn. 
67 ; Bispham v. Patterson, 2 McLean, 88 ; 
Flanagin v. Champion, 1 Green, Ch. 51 ; 
Grafton Bank v. Moore, 13 N. H. 99 ; 
Dutton u. Woodman, 9 Cush. 255 ; Alcott 
V. Strong, 9 Cush. 323. And admissions 
by a party that he is a partner with others 
bind himself only. They are not competent 
evidence of partnership to all. Ante, § 78. 
(/) Walden v. Slierbnrne, 15 Johns. 
409. See Chami)lin v. Tilley, 3 Day, 307 ; 
Noyes v. Bruniau.x, 3 Yeates, 30. [F-5ryee 
V. Joynt, 63 Cal. 375.] So, if two part- 
ners are garnishees, and one answers for 
both and acknowledges a joint indebted- 
ness, judgment may be entered against the 
tiiiii. Anderson i;. Wanzer, 5 How. (Miss.) 
587. See, fuither, in illustration of the 
general rule, Vicary's Case, Bac. Abr. tit. 
" Evidence," 623 ; Hodenpyl v. Vinger- 
hold, Chitty on Bills, 489, note ; Cheap v. 
Cramond, 4 B. & Aid. 663 ; Lucas v. De 
la Cour, 1 M. & S. 249 ; Lacy v. M'Neile, 
4 Dow. & R. 7 ; Rex v. Inhabitants of 
Hardwick, 11 East, 578, 589 ; NichoUs v. 
Dowding, 1 Stark. 81 ; Odiorne v. Maxcy, 
13 Mass. 182, 15 Mass. 44; Bridge v. 
Gray, 14 Pick. 61 ; Bound v. Lathrop, 4 
Conn. 336 ; Fisk v. Copeland, 1 Over. 
383 ; Reimsdyk v. Kane, 1 Gall. 635 ; 
Williams v. Hodgson, 2 H.& J. 474 ; Hart v. 
Palmer, 12 Wend. 523 ; Cook v. Castner, 
9 Cush. 266 ; Fickett v. Swift, 41 Me. 65 ; 
Foil V. McArthur, 31 Ala. 26 ; Sniitha v. 
Cureton, 31 Ala. 652 ; Kahn v. Boltz, 39 
.Ala. 66. It makes no diH'erence, as to the 
binding force of the declarations of any 
one partner, that some of the firm are 
dormant, Ka.skaskia Bridge Co. i\ Shan- 
non, 6 111. 15, 25 ; see Lea v. Guice, 13 
Sm. & M. 656 ; Corps v. Robinson, 2 
Wash. C. C. 388 ; Allen v. Owens, 2 
S|>eers, 170 ; nor that the partner making 
admissions or acknowledgments respecting 



joint affairs is not a party to the suit in 
which they are offered as evidence, see 
McCutchin v. Bankston, 2 Ga. 244, 247 ; 
Thvvaites v. Richardson, Peake, 16. But 
if a partnership is established between 
co-defendants, and the admissions of one 
are offered in evidence to charge all, the 
copartners may show that such admissions 
relate to other than the partnership con- 
cerns, Jaggers v. Binnings, 1 Stark. 64 ; 
or to transactions antecedent to the 
partnership, Cutt v. Howard, 3 Stark. 3 ; 
or that they were made by mistake, Ridg- 
way V. Philip, 1 Cr. M. & R. 415. And if 
a partner make a purchase, appareiitlj' 
for himself, not mentioning his firm, and 
afterwards declare that he made the pur- 
chase for the use of the partnership, such 
declaration, by itself, is not admissible to 
charge the fiim for the price of the thing 
purchased, on the ground of interest in 
the party making it. White v. Gibson, 11 
Ired. 283. 

(u) As in the case of notice by or to 
one partner in legal proceedings. If one 
of several, jointly interested in a cargo, 
effects an insurance for the benefit of all, 
he may give notice of abandonment for 
all. Hunt ?'. Royal E.xchange Ass. Co., 5 
M. & S. 47. As one partner may bind his 
firm by giving notice, so he may by receiv- 
ing it, always supposing the transaction to 
be bona fide. Lord EUenborough, C. J., 
in Bignold r. Waterhouse, 1 M. & S. 259 ; 
Alderson v. Pope; 1 Camf>. 404, n. ; Ex 
parte Waithman, 2 Mont. & A. 364. Thus 
if several joint defendants, makers of a 
promissory note, suffer judgment by 
default, service of a rule nisi, to compute 
the principal and interest due on the note, 
made upon one, is service on all ; for quoad 
hoc they are partners. Figgins v. Ward, 
2 Cr. & M. 424 ; Carter v. Southall, 3 iM. 
& W. 128. See further Mayhew v. Fames, 
1 C. & P. 550 ; Lansing v. M'Killup, 7 
Cow. 416 ; Powell v. Waters, 8 Cow. 670 ; 
Gilly V. Singleton, 3 Litt. 249 ; Fitch v. 
Stamps, 6 How. (Miss.) 487; Hay ward 



§ 130.] RIGHTS AND DUTIES OF PARTNERS. 165 

a notice to quit certain premises, (v) or a demand on \<'hich 
trover is to be founded, {w) may be given or made by one partner 
on his general authority. Almost the whole law on this subject 
resolves itself into tlie rule, that the representations or misrepre- 
sentations of a partner are binding on the firm, provided they are 
made in the course of, and relate to, and arc material to, the trans- 
action of the business of the firm.^ 

§ 130. Povrex to vary Business of Partnership. — From the same 
principle, that the power of each partner grows out of the business 
of the firm, and is measured by it, another rule is drawn, namely, 
that the business of a partnership is not to be materially varied, 
except by consent of the other partners. It cannot be changed 
as to its object and character, nor materially enlarged beyond its 
originally intended scope ; nor can a new branch of business be 
taken up and added to the old. For the very first thing for a 

V. Harmon, 17 111. 477 ; Miser v Tro- v. March, 22 Me. 189. 190 And notice 

vinger, 7 Ohio St. 281. In like manner, to the surviving partner ot the dishonor of 

notice to one ot two or nioie j)artners a note indorsed b}' the firm is sufficient to 

of a prior unrecoided deed is notice to all bind the estate of the deceased jiartner, 

the paitners, and will render void a subse- though the holder knew ot the death of 

quent deed of the same land to all the the deceased partner before the note became 

partners. Barney v. Cuiiitr, 1 U. Chip. due. Dabuey ". Stidger, 4 Sm. & Jl. 749. 

315. See Watson v. Wells, 5 Conn. 468. See Cocke v. Hank of Tennessee, 6 Humpli. 

If a bill accepted by a firm is dishonored 51. But persons wiio are joint indoisers 

by one partner, notice of the dishonor of a note or bill, but are not partners, 

need not be given to the other partners , must be severally notified of its dishonor ; 

and, if the drawer of a bill be a part- and, without notice to both, it seems that 

ner in the house upon which it is neither can be holden. Shepard v. Haw- 

diawn, proof of notice to the drawer of ley, 1 Conn. 368 ; Bank of Chenango v. 

the dishonor is not necessary. Porthouse Root, 4 Cow. 126 ; Dubney i;. Stidger, 

V. Parker, 1 Camp. 82 ; Gowan v. Jack- su])ra. See 1 Pars. Notes and Bills, 502 ; 

son, 20 Johns. 176 ; Bouldin v. Page, 24 post,, § 146, anf.e, § 101. 
Mo. 595. Farther, if a note indorsed by (v) Doe d Eliot v. Halme, 2 ilan. & E. 

a firm becomes due after its drssolution, 433. Otherwise, if the joint lesees are 

notice of dishonor given to one of the late not partners. Goodtitle v. Woodward, 

partners will be sufficient, if the holder 3 B & Aid. 689, 
has not been notified of tlie dissolution. (ic) Ste ante ; § 105 and note. 

Kott V. Downing, 6 La. 684. See Darling 

1 Upon this proposition see, in addition to the authorities quoted, W^ood r. Brad- 
dick, 1 Taunt. 104 ; AVeed y. Kellogg, 6 McLean, 44 ; Mnnson v. Wickwire, 21 Conn. 
513 ; Wiley v. Griswold, 41 la. 375 ; Dujnerris v. HallLsay. 27 La. Ann. 132 ; Hariy- 
.man v. R.)berts, 52 Md. 64 ; Smith v. Collin.s, 115 Mass. 388 ; Coleman v. Pearce, 26 
Minn. 123, 1 N. W. 846 ; Cady r. Kyle, 47 Mo. 346 ; Rucktnan v. Decker, 23 N. J. 
Ecp 233 ; McKee v. Hamilton, 33 Oh. St. 7 ; Irby v. Brigham, 9 Humph. 750 ; West- 
ern Assur. Co. V. Towle, 65 Wis. 247. The representations must be in the usual course 
of business. Boor v. Lowrey, 103 Iiid. 468. And where one partner declared that cer- 
tain property belonged to his copartner individually this did not deprive the firm of the 
property ; and one who in reliance on the declaration bought it at a sheriffs sale as 
l>roperty of the partner could not hold it as against the firm. Williams c. Lewis, 115 
Ind. 45, 17 N E, 262. 



166 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



partnership to do is to determine what business it shall transact ; 
that must be the determination of all, and remains in force until 
changed by all. (x) At the same time there may be an apparent 
exception to this rule in relation to third parties. If a partner 
enter into a new branch of business in the name of the firm, but 
without the authority of the firm, and this is unprofitable, the 
firm — if they have in no way adopted or ratified the transactions 
— may refuse to participate in the loss, and cast the whole on 
that partner, treating it as his several business. And any third 
party dealing with that partner, and knowing, or having sufficient 
means of knowing, that he goes beyond the business of the firm 
and transcends his rights, can look only to him ; for the firm 
may then re{)udiate this new business as well to this third person 
as to the partner, (y) But it may happen that this new business 



(x) Tlie lea<liiig, and perhaps the only 
case directly bearing upon the proposition 
ol' the text is tliat of Natustdi v. Irving, 
cited in the Appendix to Govv on Part. 
p. 398. There a large number ot persons 
had united in forming a joint-stock com- 
pany, for the purpose of effecting iire and 
life assurances. The plaintiff, a share- 
holdei- in the company, on behalf of him- 
self and the other sharelioldeis, filed a bill 
in equity against the piesident and direc- 
tors of said com})any ; praying, amongst 
other things, that they might be restrained 
from employing the capital, credit, &c., 
of the said company in the business of 
marine insurances. Lord Chancellor Eldon, 
in giving his opinion upon the facts, put 
the following case ; " If six persons join m 
a partnership of lile assurance, it seems 
clear that neither the majority, nor any 
select part of them, nor five out of the six, 
could engage that partnership in marine 
insurances, unless the contract of part- 
nership expres.sly or impliedly gave that 
power ; because if this was otherwise, an 
individual oi- individuals, by engaging in 
one specified concern, might be implicated 
in any other concern whatever, however 
ditTerent in its nature, against his consent. 
But if a pait of the six openly and pub- 
licly professed their intention to engage 
the partnership in another concern, and 
clearly and distinctly biought this to the 
knowledge of one or more of the other 
partners ; and such one or more of the 
other partners could be clearlv shown to 
have acquiesced in such intention, and to 



have permitted the other partners to have 
entered ui)on and to have engaged them- 
selves and the body in such new projects, 
and thereby to have placed their jjartners, 
so engaged, m difficulties and embarrass- 
ments, unless they weie permitted to jno- 
ceed in the farther execution of such 
projects, — if a court of equity would not 
go the length of holding that such con- 
duct was consent, it would scarcely think 
parties so conducting themselves entitled 
to the /estiniu) I. remcdiuni of injunction." 
These })rinciples being applicable as well 
to a jiartnership of six hundred as to one 
of six, his lordship said that '' the court 
would restrain particular members of those 
bodies from engaging other members in 
projects in which they have not consented 
to be engaged, or the engaging in which 
they have not encouraged, assented to, 
em])owered, or acquiesced in, expressly or 
tacitly, so as to make it not equitable 
that they should seek to restrain tiiem." 
It wiis further considered that an offer to 
return to the plaintifl' in this suit his cap. 
ital with interest; or to indemnify \\\n\ 
against losses from transactions outsidi* 
the specified purposes of the institution, 
or the fact that the plaintiff could sell his 
shares for more than he gave for them, — 
that any or all these circumstances, did 
not affect his right to hold his associates 
to the original business of the partnership 
and to prevent them by injunction from 
transgressing its reasonable limits. See 
Kean v. Johnson, 1 Stock. 401. 

(//) See cmlc, § 85, to the point that 



§ 131.] RIGHTS AND DUTIES OF PARTNERS. 167 

has nothing in itself to distinguish it from the general business of 
tlie (irni, and that the third person had no notice that it was so 
distinguished ; then he will hold the firm, and on the same 
ground on which he would be unaffected by any private stipula- 
tion or limitations of the firm not made known to him. (z) ^ 



SECTION III. 

POWER OF ONE PARTNER TO ISSUE NEGOTIABLE PAPER. 

§ 131. Power to issue Negotiable Paper. — The whole doctrine 
of negotiable paper, so far as it differs from the common law of 
contracts, is derived from the law-merchant. The law of partner- 
ship, as we have seen, has no other source. And when they meet, 
as in the powers of partners to make, indorse, receive, or other- 
wise deal with negotiable paper, for the partnership, we have a 
twofold reason for solving the question which this topic presents, 
by the law-merchant, as that has been established by adjudica- 
tion, or by tiiat usage of merchants which is the foundation of the 
law-merchant. It was established, as long ago as the reign of 
William III., that, "■ by the custom of England, when there are 
two joint traders, and one accepts a bill drawn on both, for him 
and i)artner, it binds both, if it concerns the trade.' ' (a) The 
same doctrine has also been always applied both to the making 
and to the indorsement of bills of exchange and promissory notes, 
as well in law as in equity .^ " In drawing and accepting bills 
of excliange, it never was doubted but that one partner might 
bnid the i-est." (6) 

the nature of the particular business of a 225. A partnership is not bound by the 

firm is generally notice to the world of acts of another partnership having a com- 

the limitations thereby put upon the power nion member, unless it authorizes or rat- 

of each partner ; and, cousequently, that ifies such acts. Cobb v. Illinois Central 

persons dealing with a partner in matters R. R. Co., 38 Iowa, 601. 

beyond the scoi)e of that particular busi- (z) See Barnley v. Rice, IS Tex. 481. 

ness cannot charge the partnership there- (n) Pinkney v. Hall, 1 Salk. 126, 1 

on, without proof of that partner's special Ld. Raym. 175. 

authority. Guillou v. Peterson, 9 Phila. (/<) Lord Kenyon, in Harrison v. Jack- 

1 Defendant sold the good-will of a certain business to plaintiff, and agreed not to 
engage directly or indirectly in the same business for twenty years. Defendant then 
formed a copartnership with a third Jtarty for carrying on a business within the geneial 
scope of which the forliidden business lay. Defendant's partner, without the knowl- 
edge of defendant, entered upon the forbidden business on behalf of the firm. It was 
held that defendant's contract was broken. Congdon v. Morgan, 13 S. C. 190. 

2 One partner who makes a note in the course of business binds the firm. Wagner 



1G8 THE LAW OF PARTNERSHIP. [CH. VII. 

§ 132. Authority to use Firm Name presumed. — The power of 
each partner to put the name of the firm to negotiable paper is so 
universally implied from the very existence of the partnership, 
that stipulations among' the partners that one or more of them 
shall not have this right will not affect third parties, unless made 
known to them ; and this is true whether all the partners be 
known or whether some be unknown and dormant, (c) Nor is it 

son, 7 T. R. 207. See Auou., Styles, 370 ; Lewis, 13 Siu. & M. 226 ; Crozier v. 

Smith V. Jarves, 2 Ld. Kayni. 1484 ; Lane Kirker, 4 Tex. 252. On the other hand, 

V. Williams, 2 Vein. 277 ; Smith v. Baily, if there are several drawees or |)ayees of a 

11 Mod. 401 ; Buller N. P. 270; Sutton bill or note, who are not partners, an ac- 

V. Gregory, 2 Peake, 150 ; Arden v. ceptance or indorsement by one of them 

Sharfje, 2 Esp. 525 ; Swan v. Steele, 7 will not be the act of all, nor bind 

East, 210 ; Ridley v. Taylor, 13 East, all. See Carvick v. Viekery, Doug., 

175 ; Livingston v. IJoosevelt, 4 Johns. 653, n., Holt. 297, March, 64, 1 Beawes, 

265 ; Smith v. Lusher, 5 Cow. 689 ; Man- 445. 

liattan Company v. Ledyard, 1 Caines, (c) Hubert v. Nelson, Davies' B. L. 

191; Kane v. Scofield, 2 Caines, 368; 8; Winship v. Bank of the United States, 

McGowan v. Bank of Kentuck}', 5 Litt. 5 Pet. 529, 5 Mason, 176; South Carolina 

271 ; Commercial Bank of Manchester v. Bank v. Case, 8 B. & C. 427 ; Grant v. 

V. Simmons, 61 Ala. 143 ; Palmer y. Scott, 68 Ala. 380; Silverman v. Chase, 90 111. 37; 
Motfitt V. Roche, 92 Ind. 96 ; Martin v. Muncy, 40 La. Ann. 190, 3 So. 640 ; Fuller v. 
Percival, 126 Mass. 381 ; Wilson v. Richards, 28 Minn. 337 ; Mace i-. Heath, 30 Neb. 
620, 46 N. W. 918 ; Wagner v. Frescid, 56 N. H. 495 ; Steuben County P.auk v. Alber- 
ger, 101 N. Y. 202 ; Moorehead v. Gilmore, 77 Pa. 118 ; Morse v. Hageuah, 68 Wis. 
603, 32 N. W. 634. It is therefore no defence to a firm note to sliow that the holder 
knew that one partner signed it without consent of the other, provided it was really or 
ostensibly given for firm purposes. Moffitt v. Roche, 92 Ind. 96. A jiartner who has 
authoiity to make a note of course has authority to alter it. Mace ■;;. Heath, 30 Neb. 
620, 46 N. W. 918. 

Power after dissolution. — After dissolution, whether brought about by death or 
otherwise, a partner has no power to bind the firm by giving a firm note, even for a 
pre-existing firm debt, or in renewal of an old firm note. Rose v. Gunn, 79 Ala. 411 ; 
Bank of Montreal v. Page, 98 111. 109 ; Hayden v. Cretcher, 75 Ind. 108; Dunlap v. 
Limes, 49 la. 177 ; Mej'er v. Atkins, 29 La. Ann. 586 ; Matteson v. Nathanson, 38 
Mich. 377 ; Jenness v. Carleton, 40 Mich. 343; Citizens' Mutual Ins. Co. v. Ligou, 59 
Miss. 305 ; Mauney v. Coit, 80 N. C. 300 ; Palmer v. Dodge, 4 Oh. St. 21 ; Gardner v. 
Conn, 34 Oh. St.'l87; McCleery v. Thompson, 130 Pa. 443, 18 Atl. 735; Brown v. 
Chancellor, 61 Tex. 437; Conrad v. Buck, 21 W. Va. 396. 

Nor can a partner after dissolution bind the firm by indorsing negotiable paper in 
the name of the firm. Stair v. Richardson, 108 Ind. 429, 9 N. E. 300 ; Carleton v. 
Jenness, 42 Mich. 110, 3 N. W. 284. 

But the use of the firm name is l)inding if the other partners authorize or ratify the 
act. Sanborn v. Stark, 31 F. P. 18 ; Murray v. Ayer, 16 R. I. 665, 19 Atl. 241. Or 
if the use of the firm name was required by a Hiin contract made before dissolution. 
Star Wagon Co. v. Swezey, 52 la. 391, 3 N. W. 421. 

The peculiar rule prevails in Pennsylvania that a licpiidating partner may bind the 
firm by giving a note for money borrowed to pay firm debts. Fulton v. Central Bank, 
92 Pa. 112 ; Siegfried v. Ludwig, 102 Pa. 547. 

A settling partner after dissolution may sign the firm name to a check upon the bank 
account of the firm, for the purpose of paying the firm debts. Bradford v. Taylor, 61 
Tex. 508. So of a surviving partner. Backhouse v. Charlton, 8 Ch. D. 444 (C. A.). 



§ 132.] 



RIGHTS AND DUTIES OF PARTNERS. 



169 



incumbent upon persons dealing with a partner to inquire whether 
he is authorized to sign the partnership name to commercial 
paper. In the absence of facts to the contrary, they have a right 
to presume that he has this power, (d) It is always open to the 
])artners to show that negotiable paper bearing their name was 
never their paper, or not signed with their name in and for their 
business, or. if their paper, that it was not transferred on their 
account ; and if this be so, and the third party claiming of them 
had no belief, grounded on sufficient circumstances, that it was 
their paper, tlien they are not held. It has already been remarked 
that an individual is held liable as a partner because he was so in 
fact, or because he was held out as one. An exactly analogous 
rule applies to negotiable paper bearing the name of a firm; it 
binds the firm either if it was their paper negotiated in their 
business, or if it was " held out " as such ; that is, so treated and 
dealt with by the firm, or with their knowledge and without their 
objection, as to justify others in believing it to l)e their paper, and 
the making or transfer of it their transaction, {h) 



Hawkes, Chitty on Bills,42 ; Bank of Ken- 
tucky 0. Brooking, 2 Litt. 41 ; WalJen 
o. Sherburne, 15 Johns. 409, 413 ; Whit- 
aker v. Brown, 16 Wend. 505 ; Bank of 
Rochester v. Monteath, 1 Denio, 402 ; 
[Rocky Mountain Nat. Bank v. McCaskill, 
16 Cul. 408, 26 Tac. 821 ; Stinison v. 
Whitney, 130 Mass. 591.] 

(d) Coursey v. Baker, 7 Harris & J. 28 ; 
Storer v. Hinkley, Kirby, 147; Champion 
V. Musford, Kirby, 172 ; Hawes v. Dun- 
ton, 1 Bailey, 146 ; Drake v. Elwyn, 1 
Caines, 184 ;" Vallett v. Parker, 6 Wend. 
615; Porter v. Cnnungs, 7 Wend. 172; 
Foster v. Andrews, 2 Pen. & W. 160 ; 
LeRoy v. Johnson, 2 Pet. 186, 197. Nor, 
with respect to this implied power of each 
partner, is there any ditference between 
general and special partnerships. Living- 
ston V. Roosevelt, 4 Johns. 251. See 
Davidson v. Robertson, 3 Dow, 229 ; 
Williams v. Thomas, 6 Esp. 18. There 
are partnerships, however, which are not 
strictly fraduiff partnerships, and in the 
course ol whose business the use of ne- 
gotiable paper is generally neither custom- 
ary nor necessary. Partners in such firms 
have not prima facie or implied authoritv 
to bind them by putting the firm name 
upon bills or notes. Of this sort are 
professional partnerships, and those for 



mining and farming pnrpo.ses. See ante^ 
§ 85. But the mere circumstance that the 
business of a firm consists in making 
profits out of real estate, as in working a 
stone quarry, will not take the case out of 
the general rule. Thicknesse v. Bromi- 
low, 2 Cr. k J. 425, 430. 

The act of drawing a bill of e.Kchange 
by one partner, in his own name, upon 
the firm of which he is a member, for the 
use of the partnership concern, has been 
held to be an acceptance of the bill by 
the drawer in behalf of the firm, and to 
bind the firm as on an accepted bill. 
Dougal V. Cowles, 5 Day, 511. See also 
Beach v. State Bank. 2 Ind. 488 ; Miller 
V. Thompson, 3 M. & G. 576. And it 
seems that in such case, if the partnership 
were not held to be bound at law, yet, if 
the bill were actually drawn on partner- 
ship account, equity would enforce pay- 
ment of it. Reimsdyk v. Kane, 1 Gall. 
630. See, as to the subject of this note 
generally, 1 Pars. Notes and Bills, 123- 
148. A partner may indorse a note, of 
which his firm is payee, in the name of 
his firm, to himself; and may then, in 
his own name, sue and recover from the 
maker. Kirby v. T'ogswell, 1 Caines, 505 ; 
Burnham v. Whittier, 5 N. H. 334. 

(6) We have just seen that it is within 



170 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



§ 133, Issue of Negotiable Paper in Fraud of Firm. — The making 
or indorsement of a promissory note, in the name of the firm, by 
one of the firm, does not bind the lii-m, if the payee or indorsee 
knows, or ouglit from the circumstances to know, that it is on 
j)rivate account, or unless specially authorized or ratified by the 
other partners ; (ba) but the firm will be held if the thing is done 
apparently In the course of business, and the other party has no 
])rivity with the fraud and no notice or knowledge of it. But a 
party cannot, as to his copartners, waive notice upon a note 
indorsed by him for his own benefit, {bb) 



the general implied power of each partner 
to bind liis firm by all contracts concern- 
ing negotiable pajier. As against hi.i 
copartners, the making, accejiting, or 
indorsing of such pa[)er by one partner is 
valid only when the act is within the 
scope of the joint business and is actually 
on the joint account. But, as far as third 
parties are concerned, such act of a single 
partner charges the partnership, if only it 
fairly appear to be within the joint busi- 
ness and on the joint account. Hence, 
wherever the partnership name is signed 
by a partner to negotiable paper the firm 
is bound, unless in some way the title of 
the holder can be impeached. Wintle v. 
Crowther, 1 Cr. & J. 316, 318 , Lane v. 
Williams, 2 Vern. 277 ; Baker v. Charl- 
ton, 1 Peake, 80 ; Arden v. Sharpe, 2 
Esp. 523 ; M'Nair v. Fleming, 1 Montagu 
on Part. 37; 3 Dow, 229 ; 2 P>ell Comm. 
672 ; Lloyd v. Ashby, 2 B. & Ad. 23 ; 
Vere v. Ashby, 10 B. & C. 288; Livingston 
V. Roosevelt, 4 Johns. 251 ; Winship v. 
Bank of the United States, 5 Pet. 529 ; 
Etheridge v. Binney, 9 Pick. 272, 274 ; 
Miller w. Manice, 6 Hill, 114. (Schwanck 
V. Davis, 25 Neb. 196, 41 N. W. 141.] 
And it has been held that the fact that 
the payee of a note, made V)y one partner 
in the name of the firm, believed that tlie 
money for which the note was given was 
to be applied to the individual purposes 
of the acting partner, wotdd not inval- 
idate the note as to the firm, unless such 
misappropriation renlly took place. Ham- 
ilton V. Summers, 12 B. Mon. 11. Nor, 
if a partner lias borrowed money on his 
own credit, and given his separate note 
therefor, is it a fraud afterwards to sub- 
stitute the note of the firm, provided the 



money borrowed actually came to the use 
of the firm. Neither, if the original loan 
was made on the credit of the firm, 
though the separate note of the borrowing 
partner was executed for it, would it be a 
fraud to substitute for the separate secur- 
ity the note of the firm, notwithstanding 
it did not appear that the money went 
into the business of the partnership. 
Union Bank v. Eaton, 5 Humph. 499. 
See Ala. Coal Mining Co. v. Brainard, 35 
Ala. 476 ; Connecticut River Bank v. 
French, 6 Allen, 313 ; Fielden v. Lahens, 
9 Bosw. 436; Stephens v. Reynolds, 2 
Fost. & Fin. 147 -, Dow v. Phillip.s, 24 
111. 249 , Maynard v. Fellows, 43 N. H. 
255. 

(ba) Ditts V. Lon.sdale, 49 Ind. 529 ; 
Reubin v. Cohen, 48 Cal. 545 ; First Nat. 
Bank v. Bieese, 39 Icwa, 640 ; Hotchkiss 
?• English, 4 Hun, 369, 6 Th. & C. 658 ; 
Tompkins v. Woodford, 5 W. Va. 216; 
Graves v. Kellenberger, 51 Ind. 66 ; Lime 
Rock Ins. Co. v. Treat, 58 Me. 415 ; Zuel 
V. Bowen, 78 111. 234 ; Bankhead r. Allo- 
wa}', 6 Cold. (Tenn.) 56 ; Blodgettu.Weed, 
119 Mass. 217; Crocker i;. Colwell, 46 N. 
Y. 212 ; [Campbell v. Pence, 118 Ind. 313, 
20 N. E. 840 ; Central Nat. Bank c. Frye, 
148 xMass. 498, 20 N. E. 325.] A firm is not 
bound for capital contributed by any part- 
ner, even if a firm note be given therefor, 
if the note be given without the authority 
of the other partners. Wiltram v. Van 
Wormer, 44 III. 97 ; Heap v. Dobson, 15 
C. B. N. s. 460 . Ba.xter v. Plunkett, 4 
Houst. (Del.) 450. 

{bb) Windham County Bank i'. Kendall, 
7 R. I. 77. See Bush v. Crawford (U. S. 
C. Ct.), 9 Phila. 392, where it is held that 
nothing short of bad faith of the plaintiff 



§ 134.] 



RIGHTS AND DUTIES OF PARTNERS. 



171 



§ 134. The Burden of Proof. — Rule in America. — The question 
has been very much discussed, on whom lies the burden of proof ; 
and we have already alluded to it, in connection with the question 
to whom credit is given. There is some fluctuation in the adjudi- 
cation both of England and of this country ; but we think there is 
no material difference in the principles adopted by the two coun- 
tries. It must be regarded as the general presumption of law, 
that all pai)er upon which the signature of the firm has been put 
by a partner, is the paper and bears the signature of the partner- 
ship ; and that all transfers of such paper by him were lawful, (c) 



can be available as a defence to such a 
note. See also, to same point, Canadian 
Bank v. Wilson, 36 U. C. Q. B. 9 And 
if the person receiving such a note indorses 
the same before maturity to a bona fide 
holder, for value, he is liable in damages 
to the defrauded partners. Calkins v. 
Smith, 48 N. Y. 614. Nor is it a defence 
to a note given to a partnership, that one 
of the partners agreed that it might be 
jiaid by off-setting a debt due from the 
partner so agreeing. Harper v. Wrigley, 
48 Ga. 493. See also Stearns i;. Houghton, 
38 Vt. 583. 

Where one jtartner, holding notes for 
the benefit of the firm, attem]>ts to pawn 
or pledge them for his own private debts, 
tlie court will interfere to restrain it as 
an act of fraud <ni his copartners. Stock- 
dale V. Ullery, 37 Pa. 486. Moreover, the 
title of the holder is not affected by any 
knowledge acquired by him subsequently 
to his reception of the paper. In Swan v. 
Steele, 7 East, 210, see the very instruc- 
tive opinion of Lord Ellenborough, C. J. 
We shall find this same principle occur- 
ring and being applied to neaily all the 
questions which we are about to consider 
res])Hcting the liability of a firm upon 
negotiable paper issued or transferred by 
one partner. See post, § 137, respecting 
cases where paper bearing the firm name, 
but originally made or afterwards trans- 
ferred in fraud of the firm, has come into 
the hands of a bona fide holder for value. 

(c) Manuf. & Mech. Bank v. Win ship, 
5 Pick. 11 ; Etheridge v. Binney, 9 Pick. 
274 ; Waldo Bank v. Greely, 16 Me. 419 ; 
Barrett v. Swann, 17 Me. ISO ; Vallett v. 
Parker, 6 Wend. 615 ; Doty v. Bates, 11 
Johns. 544 ; Knappy. McBride, 7 Ala. 19 ; 



Ensminger v. Marvin, 5 Blackf. 210 ; 
Miller v. Hines, 15 Ga. 197 ; Thurston v. 
Lloyd, 4 Md. 283 ; Manning v. Hays, 6 
Md. 5 ; Powell v. Messer, 18 Tex. 401 ; 
Hickman v. Kunkle, 27 Mo. 401 ; Carrier 
V. Cameron, 31 Mich. 373 ; [Rocky 
Mountain Nat. Bank v. McCaskill, 16 Col. 
408, 26 Pac. 821 ; Sherwood v. Snow, 46 
la. 481 ; Deitz v. Kegnier, 27 Kas. 94 ; 
Lindh v. Crowley, 29 Kas. 756 ; First Nat. 
Bank v. Morgan, 73 N. Y. 593 ; Hogg v. 
Orgill, 34 Pa. 344.] If a creditor of a part- 
nership take a bill from his debtors, drawn 
by them upon another firm, and this bill 
is afterwards, in the usual course of busi- 
ness, accepted in the name of the firm 
drawn upon, though by a partner who is 
also a member of the drawing firm, it can- 
not, in such a case, be inferred as matter 
of law from this latter fact, standing alone, 
that the purpose of the parties, or even that 
the effect of the transaction, is to subject the 
funds of the acceptors to the payment of 
the debt. These facts alone appearing, the 
acceptance is, prima facie, an acceptance 
on the joint account of the accepting firm, 
and binds a partner therein who is not a 
member of the drawing firm, and did not 
expressly assent to it. Tutt v. Addanis, 
24 Mo. 186. See Phinsen v. Negley, 25 
Pa. 297. Nor is the fact that a draft or bill, 
made in the name of the firm, is made pay- 
able to the order of one of the partners, 
any indication that the paper was not 
drawn on partnership account, and in the 
usual course of the business of the firm. 
Nor is the presumption that a draft or bill, 
so signed, is regular partneiship paper, 
changed by showing that such paper was 
discounted at the request of the partner 
who drew the draft in the name of the 



172 



THE LAW OF PARTNERSHIP. 



[CH. 



VII. 



This, therefore, would call on the partnership to discharge itself, 
and therefore would lay the burden of proof on them. 

Thus far the law seems to be clear. Then the American adjudi- 
cation very decidedly assumes that the third party taking this i)aper, 
with the knowledge that it was given for the private and personal 
debt only of one partner, knows enough to put him on his guard, 
and that he is now bound to inquire whether the firm authorized 
this use of their name, and can only hold them on the ground that 
they did so authorize it in fact ; and this he must show as the 
foundation of his claim. In other words, the American courts 
liuld the doctrine that a third party taking from a partner the 
signature of his firm for his own debt, cannot hold that firm, 
without proof of authority, adoption, or ratification by the firm, (d) 



firm whose name was inserted as payee, 
who indorsed it, and drew out the proceeds. 
Haldeman v. Bank of Middlet(nvn, 28 Pa. 
440 ; Phinsen v. Net^ley, 25 Pa. 297. See 
Pierce v. Jackson, 21 Cal. 636 ; Uhler i\ 
Browning, 4 Dutch. 79; Hurdi'. Haggerty, 
24 111. 171 ; Littell v. Fitch, 11 Mich. 525. 

A., the indorser of a promissory note 
made by B., one member of a firm consist- 
ing of B. & C, payable to the order of A., 
who indorsed it to C, A.'s indorsement 
being for the accommodation of the firm, 
may maintain an action against B. & C. 
jointly, to recover the amount which he, 
A., may have been compelled to pay. 
Thayer v. Smith, 116 Mass. 363. 

{fl) Chazournes v. Edwards, 3 Pick. 5 ; 
Homer v. Wood, 11 Cush. 62 ; Davenport 
t'. Runlett, 3 N. H. 386 ; Williams v. 
Gilchrist, 11 N. H. 535 ; Livingston v. 
Hastie, 2 Gaines, 246 ; Lansing v. Gaine, 
2 Johns. 300 ; Livingston v. Roosevelt, 4 
Johns. 251 ; Laverty v. Burr, 1 Wend. 
529 ; Warden v. Hughes, 3 Wend. 418 ; 
Whitaker v. Brown, 11 Wend. 75 ; Ganse- 
voort V. Williams, 14 Wend. 133 ; Joyce 
V. Williams, 14 Wend. 141 ; Wilson v. 
Williams, 14 Wend. 146 : Baird v. Coch- 
ran, 4 S. & R. 397 ; Cotton v. Evans, 1 
Dev. & B. Eq. 284 ; Abpt v. Miller, 5 
Jones, 32 ; Weed v. Richardson, 2 Dev. & 
B. 535 ; Hagar v. Mounts, 3 Blackf. 261 ; 
Taylor r. Hillyer, 3 Blackf. 433 : Hick- 
man V. Rieneking, 6 Blackf. 387 ; Rogers 
V. Batchelor, 12 Pet. 221 ; Mauldin v. 
Branch Bank at Mobile, 2 Ala. 502 ; 
Darling v. March, 22 Me. 184 ; Brown v. 



Duncanson, 4 H. & McH, 350 ; Poindexter 
V. Waddy, 6 Munf. 418 ; Robertson v. 
Mills, 2 H. & G. 98 ; Stearns v. Bnrnham, 
4 Me. 84; Elliott v. Dudley, 19 Barb. 326 ; 
Lanier v. McCabe, 2 Fla. 32 ; Tutt v. 
Addams, 24 Mo. 186 ; Powell v. Messer, 18 
Tex. 401 ; Clay v. Cottrell, 18 Pa. 408 
The fact that a note given by one part- 
ner, in the name of his firm, but mainly 
for his own debt, includes within it a small 
debt of the firm, will not make the firm 
liable on the note. King v. Faber, 22 Pa. 
21. And wherever the firm name is put 
by one partner upon negotiable paper under 
circumstances which make the transaction 
actually or constructively fraudulent, and 
therefore void as to the firm, the bill or 
note, also, is void in the hands of the 
fraudulent holder as to any of the other 
jiarties to it ; for, otherwise, the ])artner- 
ship would eventually be made liable 
upon it. Ridley v. Taylor, 13 East, 175 ; 
Livingston v. Hastie, 2 Gaines, 246 ; Cha- 
zournes V. Edwards, 3 Pick. 5 ; Williams 
V. Walbridge, 3 Wend. 415 ; Hagar v. 
Mounts, 3 Blackf. 261. But see Bo wen 
V. Mead, 1 Mich. 432. As to the ques- 
tion of the consent of the firm to the 
act of one partner, by which he pledgi'S 
the partnership name for his private debt, 
it is not a matter of legal presumption, but 
a matter of fact, of which the jury must 
be satisfactorily convinced. Hence, where 
the jury were instructed that, if one of two 
partners was ])resent and heaid the other 
partner make an arrangement by which 
the partnership name was pledged in a 



§ 135.] 



IlIGHTS AND DUTIES OF PARTNERS. 



173 



§ 135. Rule in England. 



The weiglit of authority in tlie 
English courts seems to be in favor of rules substantially simi- 
lar. («) That is, they also hold, that, if a creditor of one partner 



matter outside of the partnershij) concerns, 
the law would presume that the Ibnner 
assented to it, it was held, that such in- 
struction was ground for a new trial. 
Mercein t). Andrus, 10 Wend. 261; Foster 
V. Andrews, 2 Pen. &, W. I(j0 ; Jones v. 
Kootli, 10 Vt. 268 ; McKinney v. Brights, 
16 Pa. 399. But where a partner gives 
the ])artnership name for his individual 
debt, tlie assent of his copartners to the 
act, or their ratification of it, may be 
implied from circumstances, and need not 
be proved by express agreement. Ganse- 
voort V. Williams, 14 Wend. 133; Noble 
V. M"Clintock, 2 W. & S. 152 ; Cha- 
zournes v. Edwards, 3 Pick. 11 ; Cotton v. 
Evans, 1 Dcv. & B. Eip 284 ; Abpt i'. 
Miller, 5 Jones, 32 ; Brewster v. Mott, 5 
111. 378 ; Powell v. Messer, 18 Tex. 401 ; 
Kemegs v. Richards, 11 Barb. 312 ; 
Wheeler v. Kice, 8 Cush. 205. See 
Elliott V. Dudley, 19 Barb. 326. Nor 
need there be any new and independent 
consideration for the act of the partners, 
ratifying and promising to be bound by 
the act of a copartner who has wrongfully 
used the ])artnership name for his own 
benefit. Commercial Bank v. Warren, 15 
N. Y. 577. In Flagg v. Upham, 10 Pick. 
147, it appeared that Valentine, one of 
two partners, had given the firm note for 
his several debt ; and that afterwards his 
copartner, acting under a mistake of law, 
acknowledged himself liable upon the note, 
and gave his written guaranty for its pay- 
ment. The payee bringing his action 
upon the guaranty, the court said : " The 
note was made in the partnership name, 
purported to bind both partners, and was 
binding upon the partners, if made with 
their consent. Supposing it to be made 
by Valentine for his several debt, without 
the consent of the defendant, it would not, 
indeed, be binding upon hin) ; but no one 
else could make the objection, and it 
depended on himself to in-sist on, or to 
waive, the objection. Under these circum- 
stances, knowing the terms of the partnei- 
ship between Valentine and himself, and 
knowing the consideration for which the 



note was given, we are of opinion that his 
acknowledgment of his own liability, and 
his express obligation to guarantee the 
l)ayment, were a waiver of any objection 
which he ndght have made to the note, 
and therefore that this guarantee was 
given upon a good consideration, and that 
he is bound by it.'' See Stearns v. Burn- 
ham, 4 Me. 84 ; Leversou v. Lane, 13 
C, B. N. s. 278. In Taylor v. Hillyer, 3 
Blackf. 433, where one of two partners 
had given a note, in the name of his firm, 
for his private debt, and this was known 
to the payee, a sub.secjuent oral promise by 
the other partner to pay the note was 
deemed to be within the statute of frauds, 
and therefore not binding on him. See 
Mercein v. Andrus, 10 Wend. 461 ; 
Fielden v. Lahens, 9 Bosw. 436 ; Whit- 
more V. Adams, 17 Iowa, 567 ; Burleigh 
V. Parton, 21 Tex. 585. 

(c) The English and American rules on 
this point have frequently been contrasted 
in the courts of this country. The views 
taken of the points of <litlerenee between 
the two, though variously stated, are in 
the main in unison with those of the text. 
Thus in Chazournes v. Edwards, 3 Pick. 
5, Parker, C. J., after stating the Ameri- 
can rule, says : "The only case which 
has a contrary tendency is that of Ridley 
V. Taylor, 13 East, 175, in which case, 
however, the i)rinciple above stated is 
admitted ; but it was thought that the 
facts did not show that knowledge on the 
part of the creditor which would consti- 
tute the transaction fraudulent on his part. 
There were circumstances in the case from 
which it was thought the plaintiffs might 
reasonably infer that the bill given to them 
by their debtor was one which he had a 
right within his general authority as a 
partner to transfer. Though the decision 
does not seem to be in exact conformity 
with the rule as before settled in several 
cases, yet the principle is clearly ad- 
mitted." In Dob V. Halsey, 16 Johns. 
38, Spencer J., thus expresses the distinc- 
tion : "The only difference between the 
decision of this court and that of the 



174 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



take partnership paper in payment of his debt from that part- 
ner, and there are no further facts in the case, the partnership 
would not be held, and the act of the liolder of that paper 

would be deemed fraudulent in law. (/) But, if further facts 

King's Bench consists in tiiis : We require is re([uired negativini^ a presumed concur- 

tlie separate creditor, wlio lias obtained the rtuce of the copartner." See opinion of 

partnership paper for the private debt of Bronson, J., in Wilson v. Williams, 14 

one of the partners, to show the assent of Wend. 146, 158 ; of Tracy, Senator, in 

the wliole firm to be bound. The rule State v. Catskill Bank, 18 Wend. 480 ; 

of the King's Bench throws the burden Rogers v. Batchelor, 12 Pet. 221; Bank of 

of avoiding such security on the firm, by Tennessee v. Salfarans, 3 Humph. 597- 

requiring them to prove, that the act was (/) This is the principle of Hope v. 

covinous on the part of the partner for Oust, cited by Lawrence, J., in 1 East, 52. 

whose private debt the paper of the firm The same principle was applied in Shirretf 

was given, by showing that it was done v. Wilks, 1 f^ast, 48, the case in which 

without the knowledge, and against the Hope v. Cust, supra, was cited. Lord 

consent, of the other partners, and that Kenyon, C. J., said : " This is an action 

the fact was known to the separate creditor brought against three persons, Wilks, 

when he took the paper of the firm." Bishop, and Robson, as acceptors of a bill 

See Laverty r. Burr, 1 Wend. .^)29, 531, of exchange. It appears that the accept- 

opinion of Sutherland, J. The ojunion of ance was in fact made by Bishop alone, in 

Kelson, J., in Gansevoort v. Williams. 14 the name of the firm. The consideration 

Wend. 133, upon the same jjoint, is very for this bill was some porter, which had 

full and elaborate. He says : " The Eng- been sold by the plaintiffs to Wilks & 

lish cases upon this subject are not always Bishop only, at a time when Kobson had 

consistent with themselves ; and even the no concern with the house. Then the 

same court, while they profess to adhere plaintiffs, knowing this, draw the bill upon 

to this general position, namely, that the all the three partners, and knowingly take 

partner denying the authority of his asso- an acceptance from one of them to bind 

ciate must prove affirmatively that the the other two, one of whom, Robson, had 

holder knew the paper was given in a trans- no concern with the matter, and was no 

action unconnected with the ])artnership, debtor of theirs, — no assent of his being 

and also that he did not assent, sometimes found, and nothing stated to show that he 

substantially disregard the latter qualifi- had any knowledge of the transaction. It 

cation of the rule in the application of it is hard enongh for one partner in any case 

to facts." He illustrates the above remarks to be able to bind another without his 

by a citation of some of the leading Eng- knowledge or consent; but it would be 

lish authorities, from the examination of carrying the liability of partners for each 

which he concludes " that while the Eng- other's acts to a most unjust extent, if we 

lish courts hold to the position that the suffered a new partner to be bound in this 

firm is liable on a bill or note made by one manner for an old debt incurred by other 

out of the partnership business, unless the persons. The plaintiffs, therefore, ought 

holder knows that it was so made, and not in justice to have taken this security, 

that the other partners did not concur, the by which they were to bind one who was 

frequent ])ractical operation and effect of it not their debtor: the transaction is fraudu- 

under their direction does not essentially lent upon the face of it." So in Green r. 

ditler from the rules as settled in this Drakin, 2 Stark. 347. There H. and B. 

court. They undoubtedly put the defence being partners, the plaintiff lent H. 500/, 

of the copartner upon the ground of fraud, to enable liini to enter into partnership 

committed upon him by his associate and with D., the defendant, and shortly after 

the holder ; but this is sometimes inferred D. H. and B. became partners. To pay 

from the fact that the bill or note is given part of the sum borrowed, H. drew a bill 

for a private debt, and that known to the of exchange in the partnership name, to 

holder ; and at other times further proof his own order, and endorsed the same to 



§ 135.] 



RIGHTS AND DUTIES OF PARTNERS. 



175 



come in, these do not seem to be construed with the same sever- 
ity, in reference to the holder, as they would be in this country. 
Thus, if the paper be larger than the debt, and not agreeing with 
it in point of time, and is indorsed before the holder sees it, such 
facts have been considered as warranting the conclusion that the 
holder honestly believed, and might rationally have believed, that 
the firm authorized the transfer. (^) But, while it is true that 



the phiintifr. Being called as a witness, 
he testified that he had drawn the bill 
in question without the knowledge of his 
cojiartners, but that the plaintiff did not 
know this. The defendant had given no 
notice of his intention to dispute the con- 
sideiation of the bill. But Lord Ellen- 
borough was of opinion that the nature of 
the transaction was intiinsically notice, 
and he directed, that the plaintiff should 
be nonsuited, on the ground that one part- 
ner had no right to bind another without 
his knowledge, bj* drawing a bill for his 
own private debt. Ex parte Goulding, 2 
Glyn & J. 118. See Jones r. Yates, 9 B. 
& C. 532 ; Ex parte Thorpe, 3 ]Mont. & 
A. 716 ; JUx parte Bon bonus, 8 Ves. 
540 ; Ex parte Peele, 6 Ves. 604 ; May v. 
Chapman, 16 M. & W. 355 ; Smith v. Cole- 
man, 7 Jur. 1053. In Franklin y. M'Gusty, 
1 Knapp, 301, the Master of the Rolls 
said : " I take it to be clear, from all the 
cases upon the subject, that it lies upon 
a separate creditor who takes a partnership 
security t'orthejiayment of his separatedebt, 
if it be taken si'/np^/ci'/'tfr, and there is nothing 
more in the case, to prove that it was given 
with the consent of the other partners." 
And see Blinn v. Evans, 24 111. 317. 

((/) The principal case is Kiilley v. Tay- 
lor, 13 East, 175. The plaintiffs in 
November, 1806, sold to Ewbank, of 
the firm of Ord & Ewbank, linen- 
drapers, on his separate account, a cargo 
of coals, to the amount of 34^. lis. In 
ilay following, Ewbank paid 5^. on account, 
and gave his note for the balance. This 
note was dishonored, and taken up by the 
plaintiffs, who shortly after received from 
Ewbank, for the same balance, the bill in 
suit. This bill, for 40/., was drawn and 
indorsed by Ewbank in the style and firm 
of Ord & Ewbank, and was before that 
time accepted by the defendant Taylor. 
After delivering this accejitance to the 
plaintiffs, Ewbank applied to the plaintiffs 



for the balance of 9^. 19s. 9d.; but the 
plaintiffs refused to pay it until the bill 
upon the defendant should have been paid. 
The jilaintiffs negotiated the bill for 40/., 
but were subsei[uently obliged to jiay it, 
and thereupon deliited Ewbank alone' for 
the amount. Ord & Ewbank having become 
bankrupt, the defendant was sued as ac- 
ceptor, and a verdict found for the plain- 
tiff's to the amount of the bill, subject to 
the opinion of the court on the above 
fact.s. It was held, in the King's Bench, 
that the verdict should stand to the amount 
of Ewbank's debt. 

The same circumstances, of the partner- 
ship paper being for an amount larger than 
the private debt, and of its being drawn, 
accepted, and indorsed before the creditor 
saw it, and of its differing in point of 
time, seem to have determined the opinion 
of the court in Ex parte Kirby, 1 Buck, 511. 
There T., M., and F. were in partnership, 
under the firm of M., F.,&Co. T. also 
carried on business on his own account, 
and being separately indebted to K. to the 
amount of 100/., he sent to K. a bill of 
exchange for 300/. already drawn and 
accepted, and also indorsed by M., F., & 
Co., the payees, but which wanted nearly 
three months of being due. At the same 
time, T. re(piested K. to place 100/. to his 
credit, and to send him a bill for the bal- 
ance, 200/. K. accordingly sent a draft 
for 200/., which was duly paid. The bill 
for 300/. being dishonored, and M.,F., & 
Co. having become bankrupt, K. was held 
to have made a bona fide exchange of 
security, and to be entitled to prove against 
the joint estate, though not against the 
separate estate of T. 

Upon the same principle, apparentl_v, 
it was held, in Ex parte Bonbonus, 8 Ves. 
540, that the mere fact that money 
advanced to one partner upon the security 
of the firm was earned to his separate 
account, even with the knowledge of the 



176 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



paper agreeing in amount and time with the debt, and therefore 
<nore obviously made for the debt, would be more suspicious, we 



k'lidcr, was not sufficient to make the trans- 
action fraudulent as to the other copartners, 
md thereb}- to discharge the firm from lia- 
bility. Lord Eldon said : " This petition is 
presented upon a principle which it is very 
difficult to maintain, that if a partner, for 
his own accommodation, pledges the jiart- 
nership, as the money comes to the account 
of the single partner only, the partnership is 
uot bound. I cannot accede to that. I agree, 
if it is manifest to the persons advancing 
money that it is upon the separate account, 
and so, that it is against good faith that 
he should pledge the partnership, then 
they should show that he had authority 
to bind the partnership. But if it is in 
the ordinary course of commercial transac- 
tions, as upon discount, it would be mon- 
strous to hold, tjiat a man borrowing 
money upon a bill of exchange, jiledging 
the partnership, without any knowledge in 
the banker that it is a separate transaction, 
merely because that money is all cariied 
into the books of the individual, therefore 
the partnership should not be bound. No 
ease has gone that length. It was doubted 
whether Hope i'. Cust was not carried too 
far, yet that does not reach this trans- 
action ; nor Shirreff v. Wilks, as to which 
1 agree with Lord Kenyon, that, as part- 
ners, whether they expressly provide 
against it in their articles (as they gen- 
erally do, though unnecessaiily) or not, do 
not act with good faith when pledging the 
partnershi)) property for the debt of the 
individual, so it is a fraud in the person 
taking that pledge for his separate debt." 
Further, it has been held both here and in 
England, that if one partner, to pay his 
separate debt, give the partnershi]) accep- 
tance to an anioiint greater than the debt, 
the creditor may, in an action against the 
firm, recover the diflerence between the 
amount of the bill and his separate demand; 
the whole transaction, it seems, not being 
vitiateil by the fraud as to ])art. Thus, in 
Wintle V. Crowther, 1 Cr. & J. 316, the 
defendants, Crowther & Combes, were 
Sued as the accejitors of two bills of ex- 
change, — one for 130/. lOs. M., the 
other for 45/. 10s. Respecting the former 
bill, these facts were in evidence : Crow- 



ther & Combes carried on business in ]inrt- 
nership as coal merchants. Combes being 
a dormant partner. Crowther was also 
engaged in another kind of business on his 
separate account, and therein became sepa- 
rately indebted to the plaintiffs for 8U/. 
The plaiiititfs drew on him two bills of 
exchange ; the one for 40/., the other for 
38/. 8s. 6c/., the first of which was dis- 
honored. When the second became due, 
Crowther took to the plaintilf the bill for 
130/. 10s. 6c/., which was accepted in the 
name of Crowther & Co., in the handwrit- 
ing of Crowther. The two separate bills 
of Crowther were given up, and, as the 
evidence indicated very strongly, in ex- 
change for the partnership bill for 130/. 
10s. 6c^. The cause was twice tried. Upon 
the first trial, a verdict was found for the 
defendants ; but it was set aside as being 
against evidence. Upon the second trial, 
the jury found for the plaintiffs upon both 
bills ; and the plaintiffs having consented 
to reduce this verdict by the amount of 
Crowther's two separate bills for 40/. and 
38/. 8s. 6c/. (a clear admission of fraud, as 
to that part of the transaction at least), it 
was held in the Exchequer that they might 
retain their verdict for the residue. Wilson 
V. Lewis, 2 Scott's N. K. 115 ; Gamble v. 
Grimes, 2 Ind. 392. See also Barber v. 
Backhouse, 1 Peake, 61. 

The English rule seems to be very 
clearly stated by the Master of the Rolls, 
in Frankland v. M'Gusty, 1 Knapp, 301 : 
" I take it to be clear, from all the casrs 
upon the subject, that it lies upon a se])- 
arate creditor who takes a partnership 
security for the payment of his separate 
debt, if it be taken simpliciter, ami there 
is nothing more in the case, to prove that 
it was given with the consent of the other 
])artners. But there may be other circum- 
stances attending the transaction, which 
may afford the separate creditor a reason- 
able ground of belief that the security so 
given in the partnership name is given 
with the consent of the other ]iartners ; 
and these circumstances occurred in the 
case which was cited, and which seemed to 
be inconsistent with the other authorities. 
I refer now to the case of Ridley v. Taylor. 



§ 135.] 



RIGHTS AND DUTIES OF PARTNERS. 



177 



have some doubt whether this coincidence between the private 
debt to be paid, and the paper of the firm which pays it, with no 
evidence of authority or adoption by the firm, would always be 
suificient, in England, to discharge the firm. But, on the other 
hand, we are quite confident that American courts would require 
better reason for believing in the good faith of the holder, than 
any coincidence between the date and amount of the firm's paper 
and those of the private debt which it pays or secures. In other 
words, the fact that the private creditor of a partner takes from 
him the paper of the firm to pay his debt, raises a stronger pre- 
sumption of fraud in this country than in England. 

Lord Eldon says, very truly, that it may be of great moment to 
a partnership that the mercantile credit of one of the partners 
should be preserved, and that the courts sliould not embarrass 
the lawful use of the paper of a firm, by a partner, for his own 
accommodation, seeing that this is often connected with the 
advantage of the firm. (/<) But to all considerations of this kind 
thei'e is one answer., The power of a partner is limited by the 
business of the firm ; he who knows that a partner's act is not 
within the business of the firm, knows that it is not authorized ; 



In that case the bill was dated eighteen 
days before its deliveiy by the partner, to 
his separate creditor, and it was not known 
by the creditor that it was drawn and 
indorsed by the debtor alone ; and the bill 
was to a greater amount than the separate 
debt. The court, therefore, wei-e of opin- 
ion, that there was reasonable ground for 
the separate creditor believing it not to 
have been given to him in fraud of the 
partnership, and that the general presump- 
tion, that a partnership security, when 
applied in payment of a separate debt, is 
in fraud of the partnership, was repelled 
by the special circumstances which be- 
longed to that particular occasion. Upon 
a consideration, therefore, of all the au- 
thorities, I am of opinion that the law is, 
that taken simpliciter the separate creditor 
must show the knowledge of the partner- 
ship ; but, if there are circumstances to 
show a reasonable belief that it was given 
with the consent of the partnership, it lies 
upon the partners to j)rove the fraud. I 
think that will reconcile all the cases." We 
have already seen (§ 135, note (d)), that, 
in this country, if one partner use the part- 
nership paper under such circumstances of 



separate advantage to himself, and of col- 
lusion or of negligence on the part of the 
one dealing with him, as to make the trans- 
action prima facie fraudulent and void as 
to the firm, the firm may still be held 
upon jiroof of its previous consent to, or 
subsequent adoption of, the single part- 
ner's act. The same is also the doctrine 
of the English courts. Thus, in Ex parte 
Bonbonus, stated above, Lord Eldon said : 
" There is no doubt now, tlie law has taken 
this course ; that if, under the cinami- 
stances, the party taking the paper can be 
considered as being advertised in the 
nature of the transaction, that it was not 
intemled to be a partnership proceeding, as 
if it was for an antecedent debt, prima facie 
it will not bind them : but it will, if you 
can show previous authority or subsecjuent 
approbation ; a strong case of subseijuent 
ap|)robntion raising an inference of previous 
jiositive authority." See Tallmadge v. 
Penoyer, 35 Barl'.. 120. 

(Ji) Ex parte Bonbonus, 8 Ves. 544. 
See The Trader's Bank of Rochester v. 
Bradner, 43 Barb. 379 ; Freeman v. Car- 
penter, 17 Wis. 126. 



12 



178 THE LAW OF PARTNERSHIP. [CH. VII. 

and, if all he knows is that the act of the partner is for his own 
immediate and direct and several henelit, he has no right to pre- 
sume that the firm are benefited also, and therefore authorized it ; 
because it is generally very easy for him to ascertain how this is, 
if he wishes not to be a party to a fraud. 

§ 136. Other Acts of Partner in Fraud of Firm. — Similar doctrines 
must be applied if a partner disposes of any other securities ; or 
of the goods or property of any kind, of the firm, in payment of 
his personal debt, or for his personal relief, (i) And, generally, 
the true rule should be, and we are confident that it is so in the 
United States, that any act whatever of a partner, certainly for 
his own individual and several benefit, and not obviously for that 
of the firm also, does not bind the firm, until the holder proves 
their authority or ratification. When a note signed in the firm 
name was given not for partnership purposes, and a partner said 
he would settle it, " if he could get the books, notes, and accounts 
from the partner who signed the note," and he did not get them, 
it was held that he was not liable. (iV) And a release, by one 
partner, of a debt due to the partnership, or a receipt of payment, 
which he has unquestionably authority to give if in good faith, 
will be inoperative if given for a consideration which is known, 
or ought to be known, to inure only to his own benefit. And 
many decisions illustrating this principle may be found in the 
note, (j) 



(0 See ante, § 90. The adjudications seem to be somewhat in 

(//) Burleigh v. Parton, 21 Tex. f>85. conflict. But the doctrine of quite a num- 

(j) Evernghim v. Ensworth, 7 Wend, ber of cases seems to be, that as one part- 

326 ; Gram v. Cailwell, 5 Cow. 489 ; ner has an undoubted right to sell the 

Farrar v. Hutchinson, 9 A. & E. 641 ; goods of the partnership, or to contract for 

Greeley v. Wyeth, 10 N. H. 16 ; Minor v. its services ; and as he may take pay 

Gaw, 11 Sm. & M, 322. See, however, therefor in behalf of the partnership in 

Halls V. Coe, 4 McCord, 136; Beckham v. either specific articles or money; and as 

Peag, 2 Bailey, 133. An arrangement is an appropriation by him of such articles or 

sometimes made between one partner and money, once received for the partnershi{>, 

a customer of the firm, by which it is to his private use, would not subject the 

agreed that goods sold or services rendered party from whom he received them to an 

to such customer by the partnership shall action by the firm, — the nature of the 

he paid for by a debt due from that partner case is not changed, if the party, thus 

alone, or by articles furnished for his sepa- dealing «ith one partner, knows at the 

rate use. Thus, one of a firm of grocers time that what he pays for labor, materials, 

may agree with a tavern-keeper that the &c., furnished him by the partnership, is 

debt of the latter for provisions bought of intended to come to the use of that partner 

the partnership shall be set off against the alone. The disposition of the articles, or 

debt of the former for entertainment fur- money, received by one partner, for benefits 

nished at tlie inn. Is such an engagement, conferred by the partnership, is a matter 

enteredintoby one partner, valid as against entirely between the different partners 

his copartners, who are not privy to it ? Greeley v. Wyeth, 10 N. H. 15 ; White v. 



§ 137.] 



RIGHTS AND DUTIES OF PARTNERS. 



179 



§ 137. yKThen Fraudulent Paper binds Firm. — A bill of exchange 
thus drawn fraudulently or so accepted, or a promissory note so 
made or indorsed, does not bind the firm to an indorsee of the 
original wrongful holder or indorsee, even if this second indorsee 
be wholly innocent, unless he can show that he paid a considera- 
tion for it. (k) Nor would it be good in his hands, whatever the 



Toles, 7 Ala. 569 ; Strong v. Fish, 13 Vt. 
277 ; Halls v. Coe, 4 McCord, 136 ; Hen- 
derson V. Wild, 2 Camp. 561 ; Perry v. 
Butt, 14 Ga. 699. See also M'Kee v. 
Stroup, Rice, 291 ; Arnold v. Brown, 24 
Pick. 89, 93 ; Yale v. Yale, 13 Conn. 185 ; 
contra. Pierce v. Pass, 1 Porter, 232 ; 
Goode I'. M'Cartney, 10 Tex. 193 ; Nor- 
nient v. Johnson, 10 Ired. 89 ; Kamey v. 
JMcBride, 4 Strobh. 12. The practical 
rule applicable to the point is, we think, 
well stated in Warder v. Newdigate, 11 B. 
Mon. 174, 177. Where the plaintitfs, 
partners, had hoarded with the defendant, 
and each had told him "that what one 
might call for would be the same as if both 
sliould order it," the defendant's account 
for linuors, &c., furnished to each, was 
held to create a joint indebtedness, and to 
constitute a valid counter-claim to the 
deniiuid of the two plaintirts for goods sold 
and delivered. Hartung v. Siccanli, 3 E. 
D. Smith, 560. It has been held, that a 
suit at law cannot be maintained in the 
names of all the partners, for a debt from 
which one of the joint plaiutilfs has 
already discharged the defendant, although 
such discharge may have been a fraud 
upon the firm, in which the released 
debtor was participant ; as where it has 
been given in consideration of one part- 
ner's receiving a discharge from his private 
and separate debt. Jones v. Yates, 9 B. 
& C. 532, 539 ; Wallace v. Kelsall, 7 M. 
& W. 264 ; Gordon v. Ellis, 7 M. & G. 
607, 621 ; Greeley v. Wyeth, 10 N. H. 15 ; 
Homer v. Wood, 11 Gush. 62. Upon simi- 
lar grounds, it is said, if a partnership 
draw a bill of exchange, and one partner 
agrees with the drawee, though in fraud of 
the firm, that he will provide for it when 
due, tlie firm cannot maintain an action on 
the bill against the acceptor. Piichmond 
i). Heapy, 1 Stark. 202 ; Johnson v. Peck, 
3 Stark. 66 ; Si>arrow v. Chisman, 9 B. & 
C. 241. See further Longman v. Pole, 1 



Moody & M. 223 ; and compare w ith Jones 
V. Yates, supra ; Henderson v. Wild, 2 
Camp. 561. See also Minor v. Gaw, 11 
Sm. & M. 322 ; Brewster v. Mott, 5 111. 
378 ; Purdy v. Powers, 6 Barr, 492. 
Though a discharge or a release from a 
debt by one of several plaintitfs who are 
partners, is, even when fraudulently given, 
a good defence to the joint action, yet a 
receipt of payment, given by one of several 
plaintitfs, copartners, is nothing more, as 
evidence, than a primajhcie acknowledg- 
ment that the debt sued has been paid ; 
and the plaintitfs may, notwithstanding, 
show the contrary. Skaife v. Jackson, 3 
B. & C. 421 ; Farrar v. Hutchinson, 9 A. 
& E. 641 ; Oi)inion of Parke, B., in Wal- 
lace V. Ktdsall, 3 B. & C. 273. See Sher- 
wood V. Barton, 36 Barb. 284. 

(k) Grant v. Hawkes, Chitty on Bills, 
42 ; Heath v. Sansom, 2 B. & Ad. 291. 
In this last case, Sansom & Evans were 
partners under the firm of Sansom k Co. 
Sansonr was also a partner in the Droit- 
witch Patent Salt Company ; and being 
indebted to them, drew a bill in the name 
of Sansom & Co., payable to the Salt 
Company. The latter indorsed the bill to 
the plaintiff, though not, as it ayipeared, 
for any valuable consideration. The plain- 
tiff brought his action against Sansom & 
Evans. It was held, that the Droitwich 
Company could not have sued Evans on 
the note, it being given to them in fraud 
of Evans ; and that, as it did not ajipear 
why the plaintiH sued the makers of the 
note, whom he did not know, rather than 
the indorsers, who were a solvent and 
well-known partnership, it was incumbent 
upon the plaintiff, under the circum- 
stances, to show that he gave a valuable 
consideration for the indorsement to him. 
It was held, also, Parke, J., dissenticnte, 
that in all cases where, from defect of 
consideration, the original payees cannot 
recover on the note or bill, the indorsee, 



180 



THE LAW OF PARTNERSHIP. 



[CH, VII, 



consideration he gave, if he also was aware of the fraud by which 
his indorser obtained it. (Z) 



to maintain an action against the maker or 
acceptor, must prove consideration given 
by himself or a prior indorsee, though lie 
may have had no notice that such proof 
will be called for. But where, in an ac- 
tion by indorsee against acceptors of a l>ill 
of exchange, some of the defendants 
l)leaded that they did not accei)t, and it 
was ])ioved that all the defendants were 
partners, and that one of them, who had 
suttVred judgment by default, had accepted 
the bill in the name of the firm, in fraud 
of the partnershij), and not for partner- 
ship puri)oses, it was held, that such proof, 
without evidence of knowledge on the part 
of the plaintiti', did not, under the issue, 
oblige the plaintiff to prove the circum- 
stances under which the bill was indorsed 
to him. JMusgrave v. Drake, 5 Q. B. 185. 
See Heywood r. Watson, 4 Bing. 496 ; 
and see the Mechanics' Bank v. Foster, 
44 Barb. 87. 

(I) If the partnership prove the note 
or bill upon which it is sued to have been 
issued or transferred in fraud of their 
rights, the burden is now upon the claim- 
ant, through the original wrongful holder, 
to show that he took it fairly, and not 
under circumstances which could reason- 
ably operate as notice of the fraud. Mun- 
roe v. Cooper, 5 Pick. 412 ; Arden v. 
Sharpe, 2 Esp. 524. See Blair Miller v. 
Douglass, Fac. Coll. No. 41. p. 154 ; 
cited in Collyer on Part. § 495. And 
in an action against one paitner by 
the payee of a partnership note, the other 
partner is a competent witness for the 
defendant, to prove that the consideration 
of said note was for the witness's exclusive 
benefit, given to secure a debt due by him 
on his own account ; and that when he 
signed the note he informed the plaintiff 
that he was not authorized to sign the de- 
fendant's name to it. Robertson v. Mills, 
2 H & G. 98. .But it is not necessary 
that actual bad faith .should be fastened 
upon the second indorsee of a fraudu- 
lently circulated bill or note, to defeat his 
claim aaninst the firm. It is sufficient if 
the ciriMimstances under which he became 
such iudnrsee show that, but for his gross 
negligence, he would have learned the 



fraud in which the pajter originated, or by 
which it had been transferred. N. Y. F. 
Ins. Co. r. Bennett, 5 Conn. 574; Smyth v. 
Strader, 4 How. 404. And, it seems, that 
if a note is offered at a bank, by one \\ho 
became a party to it as intermediate in- 
dorser, to be discounted for the benefit of 
the offerer, the transaction on its face 
would import, that the last indorsement 
was intended merely to aid the negoti- 
ability of the paper, and would throw 
upon the bank discounting the paj)er un- 
der such circumstances, the onus of show- 
ing the tiansaction to have been regular. 
Mauldin v. Branch Bank at Mobile, 2 Ala. 
502. See Bank of Vergennes v. Cameron, 
7 Barb. 143, 150; Cooper r. McClarkan, 
22 Pa. 80. But if the holder of a part- 
nership negotiable security, issued or 
negotiated through the fraud of one of 
the paitners, show himself to be a bona 
Jidc indorsee for value, without notice of 
the fraud, the undoubted general lule is, 
that, in such hands, the jiaper is binding 
on the firm ; and, as we have already 
seen, knowledge acquired by the holder 
subsequently to his taking the pa])er will 
not affect the bona Jides o\' the tiansaction. 
Arden v. Sharpe, 2 Esp. 524 ; Wells v. 
Masterman, 2 Esp. 731 ; Lacy v. Wolcott, 
2 Dow. & R. 458 ; Sanderson v. Brooks- 
bank, 4 C. & P. 286 ; Usher v. Dauncey, 
4 Camp. 97 ; Sutton v. Gregory, 2 Peake, 
150 ; Ex parte Bushell, 8 Jur. 937 ; Bank 
of Kentucky v. Brooking, 2 Litt. 45 ; 
Livingston v. Roosevelt, 4 Johns. 279 ; 
Smith V. Lusher, 5 Cow. 689 ; Vallett v. 
Parker, 6 Wend. 619 ; Catskill Bank v. 
Stall, 15 Wend. 364, 18 Wend. 466 ; 
Vernon v. Manhattan Co., 17 Wend. 524, 
22 Wend. 183 ; Evans v. Wells, 22 Wend. 
325, 333, 20 Wend. 251 ; North River 
Bank v. Aymar, 3 Hill, 262 ; Gildersleeve 
V. Mahony, 5 Duer, 383 ; Rich i'. Davis, 
4 Cal. 22 ; I.e Roy v. John.son, 2 Pet. 186; 
Emerson v. Harmon, 14 Me. 271 ; Waldo 
Bank v. Lumbert, 16 Me. 416 ; Dudley v. 
Litt.lefield, 21 Me. 418 ; Duncan v. Clark, 
2 Rich. 587 ; Babcock v. Stone, 3 Mc- 
Lean, 172 ; Commercial Bank v. Lewis, 
13 Sm. & M. 226; Freeman r. Ross, 15 
Ga. 252 ; Calkins v. Smith, 48 N. Y. 614. 



§ 139.] 



RIGHTS AND DUTIES OP PARTNERS. 



181 



§ 138. Firm when Liable on Individual Note. — Taking the indi- 
vidual note of a member of a firm for goods sold to the firm will 
not discharge the other members from liability for the goods, 
unless there be an agreement with the firm to that eifect. And 
this is so although the note be negotiable, if it remains in the 
hands of the payee. 0}') 

On the other hand, if paper be drawn or discounted or received, 
bearing only the signature of one partner, and the proceeds are 
directly carried to the partnei'ship funds, the partnership cannot 
be charged ; because it is considered that the credit is given on 
negotiable paper only to those whose name it bears, (m) But as 
between the partners it is a partnersliij^ note ; and, if one partner 
pays it, he may charge it to the account of the firm, (nim) 

§ 139. Usual Signature binds Firm. — The strictness of the rule 
has been relaxed so far as to hold the firm liable, when, by proof 
of usage or otherwise, it was found that this was the way in 
which they signed their paper ; for this, in fact, makes the part- 
ner's name the name of the firm, as to these transactions, (z^) 



Hence, equity will restrniu by injunction 
the negotiation of a bill of exchange, 
tluiugh in the hands of a holder for value, 
if he took it knowing that it had been 
improperly accepted, by one of the i>art- 
iiers, in the name of the partnership. 
Hood V. Aston, 1 Riiss. 412. In general, 
however, the fact that one partner has 
given the partnership name on his own 
separate account is a matter of legal de- 
fence only, and equity cannot relieve 
unless defence at law be impracticable. 
Sneed v. Cogle, 4 Litt. 162. 

To an action by indorsee against A. & 
B., as drawers of a bill of exchange, in- 
dorsed to C, and by him to the plaintiff, 
A. pleaded that lie and B. were in copart- 
nership as brewers ; that B. made and 
indorsed the bill, using the name of the 
firm, in fraud of A., and not for the pur- 
poses of the copartnership, but for his 
own private purposes, namely, for a pri- 
vate debt due fiom him to C, and without 
tlie knowledge or consent of A.; that there 
was no consideration or vahie to him, A., 
for the drawing or indorsement of the bill : 
of all which premises, C, at the time of 
the indorsement to him, had knowledge 
and notice ; and that at the time when 
the bill was indorsed and delivered to the 
plaintitT, he had full knowlt^dge and notice 



of all the premises in the plea aforesaid. 
Replication, that, at the time when the 
bill was indorsed and delivered to the 
plaintiff, he had not any such knowledge 
or notice as in the plea mentioned ; and 
issue thereon. At the trial, the jury 
found that C. had no knowledge of the 
original fraud in the drawing of the bill ; 
but that the plaintiff, at the time of the 
indorsement to him, had knowledge of that 
fraud. It was held, that the plea was not 
proved. May v. Chapman, 16 M. & W. 3.^5. 
(jj) Folk V. Wilson, 21 Md. 538. [See 
ante, § 89.] 

(hi) Farmers' Bank of Mo. v. Bayless, 
35 Mo. 428, 41 Mo. 274 ; Emly v. Lye, 15 
East, 7 ; Siffkin v. Walker, 2 Camp." 308 ; 
Ex parte Hunter, 1 Atk. 223 ; Ex parte 
Bolitho, Buck, 100 ; Denton v. Rodie, 3 
Camp. 493 ; Bevan v. Lewis, 1 Sim. 376. 
See Loyd v. Freshfield, 2 C. & P. 325; 
Grneff y. Hitchni^n, 5 Watts, 454 ; Ja(|ues 
I'. Mar(|uand, 6 Cow. 497; Willis u. Hill, 
2 Dev. & B. 231 ; Allen v. Coit, 6 Hill, 
318 ; Rogers v. Coit, 6 Hill, 322 ; Green 
V. Tanner, 8 Met. 411. [See ante, § 88.] 

(jnm) Sprague y. Ainsworth, 40 Vt. 47. 

ill) South Carolina Rank v. Case. 8 B. 
& C. 427. And see Hubbell v. M'oolf, 15 
Ind. 204 ; Schollenberger v. Seldouridge, 
49 Fa. 83. 



182 THE LAW OF PARTNERSHIP. [CH. VII. 

So, too, if a partner uses neither his own name nor that of the 
firm, but a fictitious one, and does this in partnership business 
and on partnership account, if his partnership can be shown to 
have authorized or to have adopted the act, they will be held as if 
this name were theirs, (o) 

§ 140. Two Firms with Common Member. — If there be two 
houses of the same name, entirely independent and disconnected 
in their business, no other difficulty can arise than what may 
occur when one man is charged as liable on paper which 
another man of the same name has made. It is a question of 
fact, and not of law. But if there be one person who is a part- 
ner in both of these houses, a new question arises. And it seems 
to be held, that a partner in one may be made liable on the paper 
of the other, unless he could show that the holder knew that the 
paper was that of the other exclusively : (5-) as a general rule, 
it may be said that if two or more firms are connected in busi- 
ness, and use the same name, a holder of the paper having that 
name may charge upon it either of the partnerships, at his own 
election ; unless he knew, or ought to have known, definitively, 
that it belonged to one of them, and not to the other. But though 
he may thus elect to consider it as the paper of one or the other, 
he cannot treat it as the paper of both, unless their connection be 
such as to make them in fact but one firm, (r) 

§ 141. Joint and Several Notes. — A joint and several note by all 
the members of a firm is not strictly a partnership note, nor has 
it the same effect ; ^ nor could the holder, in case of insolvency, 



(0) Williamson v. Johnson, 1 B. & C. (?•) M'Nair v. Fleming, cited in Jlont. 

146. on Part. 37, 3 Dow. 229 ; Miller v. Con- 

(q) Baker v. Charlton, 1 Peake, 80. solidation Bank, 48 Pa. 514. 



^ A note signed by the partners individually is not upon its face a partnership note ; 
and the presumption is that on such a note the partners individually are bound, but 
not the firm. Freeman v. Cami)bell, 55 Cal. 19" ; Ex parte Weston, 12 Met. 1. But 
if the note was given for partnership purposes, it binds the firm. In re Thomas, 
17 N. B. R. 54, 8 Hiss. 139; De Jarnette r. McQueen, 31 Ala. 230; Iddings v. 
Pierson, 100 Ind. 418 ; Carson v. Byers, 67 la. 606, 25 N. W. 826 ; Ex parte Nason, 
70 Me. 363 ; Trowbridge v. Cushman, 24 Pick. 310 ; Agawam Bank v. Morris, 4 Gush. 
99 ; Maynard v. Fellows, 43 N. H. 255 : McKee v. Hamilton, 33 Oh. St. 7 ; Wairiner 
V. Mitchell, 128 Pa. 153, 18 Atl. 337 : Kendrick v. Tarbell, 27 Vt. 512. So of a bond: 
Ex parte Stone, L. R. 8 Ch. 914 ; Howell v. Moores, 127 111. 67 ; Berkshire AVoolen 
Co. V. Juillard, 75 N. Y. 535. But see In re Holbrook, 2 Low. 259 ; In re Herrick, 
13 N. B. R. 312 ; Turner v. Jaycox, 40 N. Y. 470 ; Crouch v. Emmerson, 3 Humph. 
209. So where one partner draws and the other indorses a note for partnership pur- 
poses, it has been held a firm note. Colwell v. Weybosset Nat. Bank, 16 R. I. 2S8, 
15 Atl. 80, 17 Atl 913. 



§ l^lj 



RIGHTS AND DUTIES OF PARTNERS. 



183 



claim from the partnership funds ; and, if it be signed by some 
of the jjartners only, it will have no operation against those not 
signing it. (s) 

That one partner may sign a note so as to hold all jointly and 
himself severally, there can be no doubt. If A. makes a joint 
and several note, and signs it "A., B., & Co.," and also "A.," 
he may perhaps be so held. If there be no words making it joint 
and several, it is only the joint note of all, which it is by the sig- 
nature A., B.,& Co. ; and therefore the signature A. is surplusage 
and inoperative.^ But if the signature is "A., B., & Co., by A.," 
then it is certainly the signature of the company by an agent, 
who might be held severally, if want of authority or othei* cir- 
cumstances made him so liable, but who is no more held in 
severalty because he is a partner than he would be if he were 
not. If the words were, " I i)romise," etc., it might tend to hold 
the signer severally, but would not, we think, be suthcient for 
this.(p) 



(s) Peri'ingy. Hono, 4 Bing. 28 ; Crouch 
V. Bowman, 3 Huiiiiih. 209. See Norton v. 
Seymour, 3 C B. 792 ; Kendrick v. Tarbell, 
27 Vt. 512 ; In re Warren, Daveis, 320 ; 
Filley v. Plielps, 18 Conn. 294 ; De Jarnette 
V. McQueen, 31 Ala. 230 ; ((7ile, § 97. 

(^>) See Galway v. Matthew, ] Camp. 
403. This case expressly decides that on 
a note of tlie above description the whole 
firm are liable. But it is an inference only 
that in such a case the partner signing his 
own and the firm's name, could be separa- 
tely sued. This, however, is expressly 
decided in Hall v. Smith, IB. & C. 407". 
But Hall V. Smith h;is been overruled in 
the Exchequer, and cannot now be regarded 
as an authoritative decision. See Ex 
parte Buckley, 14 M. & W. 469. Parke, 
B. : "I really must say that I think Hall 
V. Smith cannot be supported." Alder- 
son, B., concurred. Piatt.: "I have no 
doubt that Hall v. Smith cannot be sup- 
ported." Maclae v. Sutherland, 3 E. & B. 
34, 35 ; Staats v. Howlett, 4 Denio, 559. 
Compare Owen v. Van Uster, 10 C. B. 
319. See also Fx parte Christie, 8 Jur. 
919. See also Wilks v. Back, 2 East, 142 ; 
Doty V. Bates, 11 Johns. 544. In this 



last case, a note made by one partner, 
and beginning, " I promise to pay, " but 
signed with the name of the firm, was held 
binding on the partnership, as meaning, 
"7, 07ie of the partners, promise on 
behalf of the firm," &c. A note signed by 
one partner only, " for himself and part- 
ners," will satisfy the terms of an Act of 
Parliament, which requires a writing to be 
signed " with his or their name or names," 
and will, therefore, be a valid note, and 
binding on the firm. Meux i\ Humphrev, 
8 T. R. 2*57. See Smith v. Bailey, 11 Mod. 
401. And if in an action against the 
drawers of a bill, or the makers of a 
promissory note, the declaration states the 
defendants to have made the bill or note, 
" their own proper hands being thereunto 
subscribed," a bill or note subscribed with 
the partnership name of the defendants by 
one of them is suflHeient to support such 
averment. Jones v. Mars, 2 Camp. 305 ; 
Porter v. Cumings, 7 Wend. 172. See 
Snow V. Howard, 35 Barb. 55. Whether 
it is within the general implied powers of 
one partner to hind his copartner in an 
obligation which shall make him severally 
liable to a creditor, so as to deprive such 



^ Where a partner signs commercial paper with the firm name and adds his own 
name under it, the partner seems not to be held liable separatelv. In re Barnard, 
32 Ch. D. 447 (C. A.) ; Makomsou v. Malcomson, L. R. 1 Ire. 228. 



184 THE LAW OF PARTNERSHIP. [CH. VII. 

S 142. Debt incurred before Formation of Partnership. — If a 
partnership be contemi)latcd and agreed upon, and a purchase is 
made or a debt otherwise incurred by one of the partners for the 
partnership, but before the actual formation of the partnership, it 
is only the debt of that partner : but this indebtedness is a suth- 
cient consideration to sustain tlie subsequent promise of the 
partnership when formed, given in lieu of it or to secure it. Q) 

§ 143. Accommodation Paper, — There are some acts in rela- 
tion to negotiable paper which carry with them the presumption 
that the partner doing them was not authorized. One of these is 
the indorsing of paper which does not belong to the firm. This 
is, in fact, lending or giving the credit of the firm. There can be 
no doubt that this is frequently done by mercantile firms. Some- 
times they lend their credit, and are paid for it by a compensation 
for the guaranty. Sometimes they reciprocate accommodation 
paper with another firm, each indorsing for the benefit of the 
other ; and the notes are of the same amount, or equalized in some 
way, and perhaps made for some Ijroken amount, to give them 
the appearance of business paper. Of course, a partnership is 
liable where it authorizes any such use of its name. But this is 
no part of general and regular mercantile business, and therefore 
the presumption of the law is rather against the authority of the 
partner who so signs the name, (m) But this presumption may 
be overcome not only by direct evidence of authority, but from 
usnge or frequent recognition of such signature, or such other 
similar facts as would satisfy a jury that the signature was for the 
partnership and by its authority. (y) 

copartner of a defence in abatement for is in reality for the benefit of the partner- 

the nonjoinder of his codebtor as defend- ship, rather than for that of him to whom 

ant, when prosecuted at law upon the it is given. As where a bill, drawn by 

obligation, is doubted by Wells, J., in oue ]iartner upon the firm, and accepted 

Ganson v. Lathrop, 25 Barb. 455. by liim in the firm's name, for the acconi- 

(/) Saville ?'. Robertson, 4 T. R. 720. niodation of the payee, is given in ex- 

(«) The principle is clearly stated by change for the paper of the latter, to be 

Walwortii, Chancellor, in Stall v. Catskill used in raising money for the purposes of 

Bank, 18 Wend. 466, 477. See also Bank the partnership. Gano v. Samuel, 14 Ohio, 

of Tennessee v. Saffarrans, 3 Humph. 597. 592. 

New York F. Ins. Co. v. Bennett, 5 Conn. (v) Bank of Tennessee v. SaflTarrans, 3 

574 ; Mauldin v. Branch Bank at Mobile, Humph. 597; Whaleyv. Moody, 2 Humph. 

2 Ala. 502 ; Lang v. Waring, 17 Ala. 145 ; 495 ; Oansevoort v. Williams, 14 Wend. 

Gansevoort v. Williams, 14 Wend. 133, 133, 139 ; Chenowith v. Chamberlin, 6 

139 ; Williams v. Walbridge, 3 Wend. B. Mon. 60 ; Sweetser v. French, 2 Cush. 

415; Austin r. Vandermark, 4 Hill, 261 ; 309; Bank of Kentucky v. Brooking, 2 

Bank of Vergennes v. Cameron, 7 Barb. Lift. 41, 45 ; Darling v. March, 22 Me. 

143, 150. But this presumption does not 184, 188 ; Tanner v. Hall, 1 Barr, 417 ; 

arise where accommodation paper, executed Dundass r. Gallagher, 4 Barr, 205. But, 

by one partner in the name of the firm, though it ajipear that each of two part- 



§ 1^-i] 



RIGHTS AND DUTIES OF PARTNERS. 



185 



§ 144. Guaranty iii Name of Firm. — It is also a general rule, 
that no pailner has any authority implied from the mere fact of 
partnership to become surety for any debt in any way, and bind 
the partnership thereto, (iw) The reason from which this rule 
originated, is, that the proper business of a partnership is most 
usually buying and selling ; and therefore there is seldom a pre- 
sumption that anything but this is within their business. And 
the same rule applies, for the same reason, to guaranties given by 
one partner in the name of the firm. But the question is always 
0])en to evidence ; and the holder of the guaranty may show not 
only the peculiar usage of that firm, or their frequent recognition 
of such guaranties, (a;) but also that the nature of their business 
is such as to make this giving of guaranties a part of it. So 
Lord Mansfield said in relation to bankers ; (y) and it has been 



ners has repeatedly, with the knowledge 
and assent of the other, indorsed accom- 
modation notes in the firm name, this is 
not sufficient evidence that either of them 
is authorized to sign the firm name to such 
paper as maker and surety. Early v. Reed, 
6 Hill, 12. Paper, however, to 'which the 
partnership name has been affixed by one 
partner by way of accommodation, is 
always binding upon the firm, in the 
hands of a bona fide holder of value, 
taking it without notice of the circum- 
stances, express or implied. Id. ; C'atskill 
Bank v. Stall, 15 Wend. 364 : Austin v. 
Yandermark, 4 Hill, 2f)9 ; Gano v. Samuel, 
14 Ohio, 592 ; Waldo Bank v Lumbert, 
16 Me. 416 ; Mauldin i'. Branch Bank at 
Mobile, 2 Ala. 503, 513 ; Beach v. State 
Bank, 2 Ind. 488. 

(«•) Foot V. Sabin, 19 Johns. 154; 
Laverty v. Burr, 1 Wend. 531 ; N. Y. F. 
Ins. Co. V. Bennett, 5 Conn. 574, 580 ; 
Andrews v. Planters' Bank, 7 Sm. & M. 
192 ; Langan v. Hewt-tt. 13 Sm. & M. 
122 ; Wagnon v. Clay, 1 A. K. Marsh. 257 ; 
Rollins I'. Stevens, 31 Me. 454 ; New 
York F. Ins. Co. v. Bennett, 5 Conn. 583 ; 
Butler V. Stocking, 8 X. Y. 408. See 
farther for the general principle, Sweetser 
V. French, 2 Cush. 309, 314 ; Rolston v. 
Click, 1 Stewart, 526 ; Kibbler v. De 
Forest, 6 Ala. 92 ; Bank of Rochester v. 
Bowen, 7 Wend. 158 ; Long v. Carter, 3 
Ired. 238. The ratification by a firm of 
the unauthorized act of one partner, in 



signing the firm name to a contract of 
suretyship, is ineffectual as against existing 
partnership creditors, being in substance 
an adoption by the firm of a private debt 
of one i)artner. Kidder v. Page, 48 N. 
H. 3S0. 

(./ ) And a recognition and adoption, 
express or implied, subsequent to the 
giving of the guaranty, may be given in 
evidence as well as a prior authority ; and 
either the one or the other may be shown 
by parol as well as by a written document. 
Duncan v. Lowndes, 3 Cami). 478 ; Ex 
2}arte Nolte, 2 Glyn k J. 305, 306 ; Craw- 
ford V. Sterling, 4 Esp. 207 ; Halseham i'. 
Young, 5 Q. B. 833 ; Long v. Carter, 3 
Ired. 241 ; Mayberry v. Bainton, 2 Harr. 
Del. 24. See Coursey v. Baker, 7 H. & 
J. 28. In Sweetser v. French, 2 Cush. 
309, 314, Metcalf, J., states very clearly 
the law respecting guaranties as established 
both in England and this country. See 
also Hamill v. Purvis, 2 Barr, 177 ; Sutton 
V. Irwine, 12 S. & R. 13. Partners may 
give in evidence a disclaimer of a guaranty, 

and a refusal to be concerned in it. 

V. Layfield, 1 Salk. 292. And whether a 
guaranty has been given by one partner 
with the privity and consent of all, is 
a question for the jury. Payne v. Ives, 3 
Dow. & R. 664. 

(v) Hope V. Gust, 1 East, 53. If a 
guaranty given by one partner can be 
considered as an assurance or represen- 
tation made in the usual course of, and 



186 THE LAW OF PARTNERSHIP. [CH. VII. 

held, that in horse-dealing it is so customary to sell with war- 
ranty, or rather so rare to sell without it, that a buyer may 
presume that a partner (or any agent) having authority to sell 
has thereby authority to warrant, (z) The power or authority 
to sell generally does not carry with it the power to warrant ; but 
we should be disposed to hold that a warranty by any partner, of 
the ])roperty of the firm lawfully sold by him, Avould hold the 
firm, if made and received in good faith, (a) 

§ 145. Power to indorse Negotiable Paper. — [The indorsement 
of commercial paper has a double effect : it passes property and 
it binds the indorser to a subsequent holder. We have seen that 
one partner has power to transfer firm property, and therefore to 
indorse a firm note for the purpose of transferring it : ^ he has the 
power by his indorsement in the firm name also to bind the firm 
to subsequent holders.^ 

If he indorses firm paper for his private purpose, the indorsee 
cannot of course hold the paper against the firm ; nor could any 
subsequent holder with notice.^ It becomes important therefore to 
determine what transactions, apparent on the face of the note, 
are notice of fraud on the firm. Where the private note of a 
partner is indorsed by the firm name, the firm not being a party 

with reference to, the business of the firm, Sandilands v. Marsh, 2 B. & Aid. 679. 

it will be binding on the partnership, See Penn v. Harrison, 3 T. R. 760. 
as being an act entirely within the scope (a) In Sweet v. Bradlej', 24 Barb. 549, 

of one partner's authorit.y. . See Crawford the defendant, a member of the firm of 

V. Sterling, 4 Ksp. 209; Sutton i'. Irwine, B. Bradley & Co., sold some promissory 

12 S. & r! 13. Bat one partner will not notes belonging to the firm, received the 

be deemed to have the power of giving a proceeds, and applied them to the use of 

guaranty in the name of the firm, merely the firm. At the sale, he assured the 

in consequence of its being a rcaxonahU purchaser of the pajier that he would 

mode of carrying into etiect an acknowl- warrant that the notes were given in the 

edged partnership contract. Brettel v. regular course r)f business, and would be 

"VvTlliams 4 Exch. 623. paid ; that the makers and indorsers were 

(;:) " A case may be put, where two responsible and men of abundant means, 

persons in partnership, for the .sale of Tlie notes having been bought upon the 

horses, should agree between themselves strength of these and other similar repre- 

never to warrant any horse ; yet, though sentations, which proved to be false, it was 

tliis be their course of business, there is no held that the firm was bound by the 

doubt that if upon the sale of a horse, the representations of the partner who sold the 

].io].erty of the partnership, one of them notes ; and that an action would lie against 

.sho\ild give a warranty, the other would all the members of the firm, ujion the 

be thereby bound." Per Abbott, C. J., in warranty. 

1 Ante, § 108. 

2 Waldo Bank v. Lumbert, 16 Iile. 416 ; Tevis v. Tevis, 24 Mo. 535 , Tompkins v. 
Woodvard, 5 W. Va. 216. 

■ 8 Second Nat. Bank v. Hume, 4 Mack. 90; Allen v. Cary, 33 La. Ann. 1455; 
Livingstone v. Roosevelt, 4 Johns. 251. 



§ 147.] RIGHTS AND DUTIES OF PARTNERS. 187 

to the note, the indorsement is clearly for the accommodation of 
the partner, and any holder lias notice that it was not made in 
the course of business, and is put upon his inquiry.^ But where 
the note of an individual partner is made payable to a firm, and 
is indorsed by the partner in fraud of the firm, an innocent holder 
for value may enforce it against the firm,^ although the individual 
creditor to whom it was given could not, in the ordinary case.^ 
So where a j)artner draws a firm draft to his own order, this is 
not of itself notice of irregularity.* Where a partner in two firms 
makes a note in the name of one firm payable to tlie other, and 
indorses the name of the other firm, a subsequent holder for value 
is not affected witli notice.^] 

§ 146. Notice of Dishonor. — [Notice of the dishonor of negoti- 
able paper is good if sent to a single partner, whether before or 
after dissolution. '^j 



SECTION IV. 

OF THE POWER OF A MAJORITY OF THE PARTNERS. 

§ 147. Power of a Majority. — Whether a majority in numbers of 
the partners can lawfully control the rest, and conduct the affairs 

1 National Bank of the Commonwealth v. Law, 127 Mass. 72 ; Tanner v. Hall, 1 
Ban-, 417; Cooper v. McClurkan, 22 Pa. 80 ; (but see Ihmsen v. Negley, 25 Pa. 297;) 
Tompkins r. Woodyard, 5 W. Va. 216. Contra, Bank of Commonwealth v. Mudgett, 
44 N. Y. 514. 

2 Redlon v. Churchill, 73 Me. 146 ; Manning v. Hays, 6 Md. 5 ; Atlas Nat. Bank 
V. Savery, 127 Mass. 75. 

3 Mechanics' Bank v. Barnes, 86 Mich. 632, 49 N W. 475 ; Tevis v. Tevis, 24 Mo. 
535 ; Commercial Bank v. Warren, 15 N. Y. 577. 

4 Haldeman v. Bank of Middletown, 28 Pa. 440. 

5 Atlantic State Bank v. Savery, 82 N. Y. 291. But if the note were made to the 
order of the partner, so that the second firm was a party only as indorser, this would 
seem to be notice that the note was not given in the course of business of the second 
firm. Contra, however, Ihmsen v. Negley, 25 Pa. 297. Where a partner drew and 
signed a note, and under his own signature added that of the firm, it was held to be a 
question for the jury whether the form of the note was notice of any iiTegularity. 
Sherwood v. Snow, 46 la. 481. See Ames, Cases on Part. 527 n., 533 n. 

6 Coster V. Thomason, 19 Ala. 717 ; Slocomb v. Lizardi, 21 La. Ann. 355 ; People's 
Bank v. Keech, 26 JId. 521 ; BouMin v. Page, 24 Mo. 594 ; Fourth Nat. Bank r. 
Altheimer, 91 Mo. 190, 3 S. W. 858 ; Hubbard v. Matthews, 54 N. Y. 43. See Bank 
of America v. Shaw, 142 Mass. 290, 7 N. E. 779. If one partner resides at a distance 
from the firm business and tlie place of payment, notice to him alone has been held not 
sufficient. Hume v. Watt, 5 Kas. 34. After the death of a partner, notice to the sur- 
viving partner has been held sufficient to bind the estate of the deceased jiartiier. 
Dabney v. Stidger, 4 Sm. & M. 749. But see Cocke v. Bank of Tennessee, 6 Humph. 
51, contra. 



188 THE LAW OF PARTNERSHIP. [CH. Til. 

of the partnership at their own pleasure, has been much discussed. 
At one time there was certainly a strong tendency to sustain this 
power, and to extend it over all the affairs of the partnership, 
provided only that it was exercised honestly and deliberately, and 
with every reasonable opportunity to the minority to make their 
wishes and the reasons for their wishes known and duly con- 
sidered. It has, as certainly, been the tendency of the courts in 
later years to limit this power narrowly, and almost confine it 
within what may be called the domestic acts of the firm ; as, for 
example, the appointment or salary of a clerk, the arrangements 
of the counting-room, method of conducting sales, or keeping 
accounts, and the like. And, even as to these, it is put upon the 
apparent necessity of deciding as to how that shall be done which 
must be done in some way. Whereas, if the partnership cannot 
agree about a purchase, or a sale, it may be omitted, and the 
business nevertheless go on. Recent American decisions appear 
to enlarge this power somewhat. Thus, it has been held that a 
majority of a firm established to publish a newspaper has author- 
ity to appoint or remove a publisher, (^oa') It will be apparent, 
however, from the authorities presented in our note, that the law 
as to the power and authority of a majority of copartners cannot 
be considered as definitively established. (6) 

(rtffl) Peacock v. Cummings, 46 Pa. major part of the part-owners should 

434. But see Yeager v. Wallace, 57 Pa. conclude the rest. And in Falkland v. 

365. Cheney, 5 Bro. P. C. 476, 1 Bro. P. C. 

ib) Chitty says (3 Laws of Commerce, (Dublin ed.) 90, it seems to have been 
236) that, in the absence of express stip- laid down as a general principle that, in 
Illations between the partners, " a majoi-- all sea adventures, the act of a majority 
ity must decide as to the disposal of the binds the whole. But in that case such 
partnership property ; or, if no majority power was given to the majority by the 
can be obtained to decide as to such dis- articles of association. See Lloyd v. Loa- 
posal, or there are but two partners in the ring, 6 Ves. 777. Perhaps the weightiest 
firm, one or more partners may manage authority to be found in the English 
the concern as they think fit ; provided it books is the dictum of Lord Eldon in 
be within the rules of good faith, and Const v. Harris, Turner & R. 516, 525. 
warranted by the circumstances of the After declaring that the act of the major- 
case." To this CoUyer adds (Collyer on ity of the partners is to be considered the 
Part. § 197): "It will be observed that act of all, he adds: "I call that the act 
this opinion is given with considerable of all, which is the act of the majority, 
caution, and jierhaps it may be laid down provided all are consulted and the nuijor- 
that, in a partnership without articles, the ity are actiug bond fide ; meeting, not for 
power of the majorit}' to bind the minor- the purpose of negativing what any one 
ity is confined to the ordinary transactions may have to offer, but for the purpose of 
of the fiartnership." The English author- negativing what, when they are met to- 
ities on the point are few, and by no means gether, they ma)', after due consideration, 
conclusive. In Robinson v. Thompson, 1 think proper to negative. For a majority 
Vern. 465, it was held, that an account of of partners to say, ' We do not care what 
the profits of a voyage settled by the one partner may say : we, being the ma- 



U8.j 



RIGHTS AND DUTIES OF PARTNERS. 



189 



§ 148. As to Third Persons. — We may consider this question 
in reference to third persons, and also in reference to the partners 
themselves. If the majority propose to deal with a customer, 
either in the way of purchase or sale, in a manner to which the 
minority do not assent, it is certain that the minority, whether 
they withhold authority or not, will be bound, if they do not com- 
municate tlieir dissent to the customer, provided the transaction 
be within the scope of the partnership business ; for so would the 
majority be bound if the minority so did it, and so would all the 
|)artners be bound if any one of them so did it. On the other 
hand, if it be not within the business of the firm, neither a 
majority nor a minority would be bound to third persons, unless 
these persons could show themselves to have believed and to have 
been authorized to believe that it was within the business of the 
firm, or that the firm had made it theirs by adoption or 
ratification. 

All that we have said results necessarily from principles which 
have been fully considered in former chapters. Let us here sup- 



jority, will do what we please,' is, I ap- 
prehend, what this couvt will not allow. 
In all partnerships, whether it is expressed 
in the deed or not, the partners are bound 
to be true and faithful to each other : they 
are to act upon the joint opinion of 
all, and the discretion and judgment of 
any one cannot be excluded ; what weight 
is to be given to it is another question." 

The American authorities are not much 
more numerous nor satisfactory. The opin- 
ion of the court in Kirk f. Hodgson, 3 Johns. 
Ch. 400, contains expressions which, con- 
sidered by tliemselves, would appear to 
give unqualified support to the above dida 
of Lord Eldon. But Chancellor Kent, 
who rendered the decision in that case, 
says of it, in his Commentaries, that it 
"related onlj' to the case of the manage- 
ment of the interior concerns of the 
partners among themselves ; and to that 
it is to be confined." 3 Kent Comm. [45]. 
"We have, however, two cases in which 
the doctrine is asserted, that where a firm, 
without articles, consists of more than 
two members, any contract within the 
sphere of the joint business, made in good 
faith by the majority, will be binding on 
the whole, notwithstanding at the time 
of, or previous to, the making of the 
agreement, the minority expressly dissent. 



and communicate their dissent to the 
third party with whom it is made. See 
Johnston v. Button, 27 Ala. 245 ; Camp- 
bidl V. Bowen, 49 Ga. 417. See also 
Western Stage Co. v. Walker, 2 Iowa, 504 ; 
Irvine v. Forbe.s, 11 Barb. 587. In Kirk 
V. Hodgsdon, 3 Johns. Ch. 400, E., K., 
& D., in trade, employed H. as their 
clerk, at a fixed annual salary, but with 
the understanding that the salary should 
be increased with the increase of the firm, 
business and of H.'s duties. In the third 
year, it was discovered that H. had over- 
drawn money of the firm and applied it 
to his own use ; and this breach of trust 
was confessed by him. Nevertheless, a 
majority of the firm, E. & D., continued 
H. afterwards in his employment. It was 
held, that this fact was decisive in favor 
of the continuance of the rights of H. 
and of his claim to the stijiulated increase 
of salary ; that it was evidence that he 
had not forfeited the confidence of the 
firm, and that the overdiawings, charged 
and confessed, were not understood by 
them to be acts of intentional fraud ; and 
that they could not, therefore, be set up 
by the firm against his claim, founded on 
their promises and acknowledgments, and 
his services. 



190 THE LAW OF PARTNERSHIP. [CH. VII. 

pose that the question refers to some single act. The majority of 
a house dealing in cotton wish to sell one hundred bales at a 
certain price, and the minority refuse to consent ; the majority 
make the sale, deliver the cotton, and take notes or money for it ; 
can the buyer hold this cotton by good title ? Certainly, if the 
minority express no dissent ; but, if they do express dissent and 
positive prohibition, is the transaction then valid ? It might not 
be easy to reach the question at law. The minority alone, that 
is, without the majority, would find it difficult to maintain reple- 
vin or trover, or any other action, for the cotton or its value. 
And it would not seem, commonly at least, to be a case in which 
a court would permit a minority to use the names of the majority 
as coplaintiffs against their will. If the minority sold the same 
cotton to another customer, and let the two purchasers contest 
the title of each other, the purchaser from the minority alone 
would certainly have no better title than the purchaser from the 
majority alone. If the question were considered in equity, all 
the circumstances of the case would be duly regarded, and, among 
others, the right or absence of right of the minority to dissolve 
the partnership at will, (c) For, if they have this right, it would 
seem that they could exercise it, in case of irreconcilable and 
material difference of view or purpose. And, if they did not 
exercise it, they might be considered as yielding to the majority, 
for the sake of preserving the partnership, and so adopting the 
transaction. If they could not dissolve it, because it was estab- 
lislied for a time certain, and if the conduct of the majority was 
unreasonable and oppressive, this would be a good ground for the 
other partners asking of the court a dissolution of the partner- 
ship; and generally, if they did not, it would, we think, be taken 



(c) In both the cases, Johnston v. Dut- term, as having any bearing on the 

ton, 27 Ala. 245, and Western Stage Co. case under consideration. Conceding 

r. Walker, 2 Iowa, 50i, cited in preceding they are law, which is doubtful, the 

note, the partnership was, by articles, to decisions rest solely upon the ground, 

continue for a time certain, and in both that the limitation of the right of disso- 

the actions were at law. In Johnston v. lution is incompatible with the nature of 

Button, the attention of the court seems the partnership contract ; and this prin- 

to have been called to views similar to ci])le does not militate against the posi- 

those represented in the text. See argu- tions we have asserted. The dissent, in 

nient of counsel, pp. 2.50, 251. The court, the present case, cannot be regarded as a 

however, said, p. 253 : "We do not dissolution ; for, if effectual, it would 

consider the cases to which we have not, necessarily, produce that result, al- 

been referred, holding that one partner though it might operate to change the 

has the riijht, at pleasure, to dissolve a mode of conducting the business. In 

partnei\ship, although the articles provide other words, it might be carried on with- 

that it is to continue for a specified out contracting debts." 



§ 149.] RIGHTS AND DUTIES OF PARTNERS. 191 

as before, that by not dissolving the partnership they acceded to 
the wishes of the majoi-ity. But there certainly might be cases 
in which the act of the majority would be injurious to the minor- 
ity, and an immediate dissolution even more so, and the majority 
would be deemed to have no right to inflict upon a minority either 
of these mischiefs. Then the court would decree such annulling 
of the act, or compensation, or other remedy, as justice between 
all the parties and the power of the court should authorize and 
require. But tiiese considerations touch rather the rights and 
interests of the partners. So far as the customer, the third party, 
is concerned, — always supposing the transaction honest as to him, 
— we should say that the question of the power of a majority 
would be put aside both in law and in equity by the general rule, 
that, if the transaction were within the business of the firm, it 
bound all the partners who gave no notice to the third party ; and, 
on the other hand, that it did not bind recusant and jjrotesting 
partners who gave sufficient notice of their dissent ; (c?) and that, 
if it was without the business of the partnership, it bound nobody 
but those who authorized the act or ratified it. 

§ 149. Between the Partners themselves. — If the question of a 
majority related only to those things to which no person out of 
the partnership was privy, it would assume a somewhat different 
aspect. Suppose, for example, a majority chose to enlarge or 
vary the business importantly, or enter upon a new business, 
which things no partner can do by his implied authority, can the 
majority compel the minority to acquiesce in this ? We should 
say that they certainly could not. (e) And yet it must generally 
be the case, that if the majority persisted, and the minority did 
not dissolve the partnership or seek relief from a court of equity, 
but did go on with the business in the manner proposed by the 
majority, this would be deemed evidence of their consent. Still, 

(d) See ante, § 147, note (b). were afterwards altered by the company 

(t) Natnseh v. Irving, Gow on Part, so as to allow a trade in ardent spirits 

App. p. 398 ; ante, § 131, note (x). See to be carried on. The court said : 

Conist y. Harris, Turn. & R. 524; Living- " We can have no hesitation in holding, 

ston I'. Lynch, 4 Johns. Ch. 573. In that this was such a substantial alteration 

Abbott V. Johnson, 32 N. H. 9, it ap- as discliarged the plaintiffs from their 

peared tiiat a number of ])ersons, among obligation to proceed with the partner- 

them the plaintiffs, formed a written agree- ship, unless they agreed to the change, 

ment of copartnership, for the purpose and that it gave them the right to retire 

of carrying on a retail trade in domestic from the firm, ... if they did it under 

and foreign goods. By one of the articles circumstances which were such as to do 

it was provided that there should be no injury to the partners who chose to go 

"neither purchase nor .sale of anient on under the new arrangement." 
spirits by the concern." The articles 



192 THE LAW OF PARTNERSHIP. [CH. VIL 

tlie universal principle would apply, that waiver or consent is 
implied by acquiescence only when that acquiescence is free and 
voluntary ; and therefore this evidence, or presumption, might be 
rebutted by showing that circumstances had placed the minority 
so far in the power of the majority that they must go on and sub- 
mit for a time, reserving all their rights of dissent, or suffer 
important injury, and then their so going on would not be held as 
necessarily implying a waiver or loss of any right. These views 
are, to some extent, only theoretic ; and it is perhaps a little 
remarkable that cases of conflict of interest or wishes between 
partners have not been before the courts of England or this 
country often enough to settle the question by adjudication as to 
the power of a majority. ^ 



SECTION V. 

OF THE DUTY OF PARTNERS TOWARD EACH OTHER. 

§ 150. Good Faith between Partners. — The first and highest 
duty which partners owe to each other, is that of perfect good 



^ Power of majority. — The tendency of the modern cases seems to be in the direc- 
tion of giving to a majority of the partners entire power to act in all matters within 
the scope of the firm business. See Clarke v. Slate Valley R. R., 136 Pa. 408, 20 Atl. 
562, where it was held that two partners out of three have power to sign a warrant of 
attornej', in order to authorize a suit in the firm name. So it has been held that in 
the absence of fraud a majority of the partners in a firm formed to sell ice may give a 
good title to ice of the firm, though the dissent of the minority is made known to the 
purchaser. Staples v. Sprague, 75 Me. 458. 

On the other hand, no mere majority of the partners has a right to change the 
location of the business without consent of all. Jennings's Appeal, (Pa.) 16 Atl. 19, 2 
Monaghan, 184. And where the lease of business premises ex[)ired duiing the contin- 
uance of the partnership, and the partners could not agree to continue business there, 
it was held that part of the partners could not fix the location of the business, but all 
must agree. Clements v. Norris, 8 Ch. D. 129 (C. A.) This was, to be sure, a case 
of disagreement between two partners ; and the decision might perhaps have been 
different if a majority had desired to continue the business in the old location. 

Where a partner leaves the place where the business is carried on, tlie remaining 
partners must of course exercise entire control over the business, though no doubt 
they have no power to vary the nature of it. So where one partner who alone had 
control of the finances of the firm went away, having named another partner to take 
his place, it was held that the remaining paitners, and not the single one named, had 
control over the finances, and miglit arram/e a settlement of the affairs of the firm. 
Sweet V. Morrison, 103 N. Y. 235, 8 X. F.. 396. 



§ 150.] RIGHTS AND DUTIES OF PARTNERS. 193 

faith, (ee) ^ In the Roman civil law, tlic " societas " of mer- 
chants for trade, and of husband and wife, were considered 
closely analogous, and in many respects governed by the same 
principles. (/) Indeed, what we have already said indicates 
suHiciently how much partners are in the power or at the mercy 
of each other, and there certainly seems to be no relation in life, 
calling, either by its own exigencies or by the rules of law, for a 
more absolute good faith than the relation of partnership. (^) 

After this comes the duty of having and using the skill and 
knowledge which the partnership requires ; of applying to all 
its affairs due care ; of devoting to them a reasonable measure 
of time and labor ; and of conducting all its concerns, private 
or public, with due economy. For the breach of any one of 
these duties, the party is held responsible. (A) A court of 
equity, in particular, will always decree such com|)eiisation, in 
form or kind and amount, as shall be needed to make good any 
losses arising from any violation or disregard of these duties. (?) 

The rule would extend, by the reason of it, to the manner of 
doing anything. Hence, as no partner should do that which 
he has no lawful power to do, so he should do everything he 
has power to do either by the general law of partnership or by 
special stipulation in the articles, — as, for example, the assign- 
ing of his .share, ^ or the giving of partnership security, — in 
such a way as a due regard for the interests, of the partnership 
would require. ( j) 

(ee) See Nicholson v. Janeway, 1 Green of Iledfield, C. J., in Pierce v. Daniels, 24 

(N. J.), 285. [Ellis V. Allen, 80 Ala. 515, Vt. 624. 
2 So. 676.] (i) See post, ch. 8, § 204 et scq., respect- 

(/) Vin. Comm. lib. 3, tit. 26, § 2 ; ing the remedies between partners which 

Pothier, Contr. de Soc. ch. 3. courts of equity administer. See Lefever 

(g) Baker v. Charlton, 1 Peake, 80. v. Underwood, 41 Pa. 505. If a partner 

See England v. Carling, 8 Beav. 129, for neglects to render the personal services 

an example of bad faith between partners, which he ought to render, he will be 

and of the displeasure with which it is charged with their value in settlement of 

viewed by the court. See also Blissett v. the partnership account. Jlarsh's Appeal, 

Daniel, 11 Hare, 493, Ault i'. Goodrich, 69 Pa. 30. 
4 Russ. 434. (/) The rule that each partner must do 

(h) See post, § 154, as to how far a all he can for the benefit of his firm has, 

partner may engage in other business, of course, its limitation in the reason of 

besides that of the firm. See the remarks the thing and the circumstances of each 

1 The duty of good faith toward his partners is especially incumbent upon a man- 
aging partner. Brooks v. Martin, 2 Wall. 70 ; Kimberly v. Arms, 129 U. S. 512 ; 
Fulmer's Appeal, 90 Pa. 143. 

2 The sale of one partner's interest to another is not a breach of duty. Cassels v. 
Stewart, 6 App. Cas. 64. 

13 



194 



THE LAW OF PARTNERSHIP. 



[CH. VII. 



In every bargain which he makes, he must remember a prin- 
ciple laid down emphatically by Lord Eldon, — that it is his duty 
to use the property for their benefit whose property it is ; (^) 
that is, for the benefit of the whole as one concern, or one body, 
for so it is owned. ISo if a partner by any means gets possession 
of a fund properly belonging to the firm, he must share any profit 
or advantage arising from it, with his copartners. (M) 

§151. Partner charged with Loss caused by His Fault. — If 
losses occur by reason of a breach of duty by a partner, in any 
way whatever, whether through fraud, negligence, ignorance, or 
extravagance, and, whether by design or not, they must rest on 
the partner whose faulty conduct has caused them ; and he can- 
not require the partnership to contribute in any way towards 
them. {I) But a partner is not liable to his copartners for a loss 



particular case. See Rowe v. Wood, 2 Jac. 
& W. 556. 

(k) Crawshay v. Collins, 15 Ves. 226 ; 
Honore v. Colmesnil, 1 J. J. Marsh. 507, 
541. Hence, when all the proprietors of a 
morning payier, save one, were also the 
owners of an evening paper, published in 
the same place, an injunction was granted 
to restrain the proprietors of the evening 
paper from publishing therein any informa- 
tion obtained at the expense of the morn- 
ing paper, until it should first have been 
published in the morning paper. Glass- 
ington V. Thwaites, 1 Sim. & S. 124, 133. 
And if a copartnership own a dwelling- 
house which is occupied exclusively by the 
family of one of the partners, this partner 
i.° liable for rent to the firm, though 
there be no special agreement to that 
effect. Holden v. Peace, 4 Ired. Eq. 223, 
[So where a partnership owned a mine, 
together with houses and machinery, and 
the managing partner owned an adjoining 
mine and used the plant in working his 
own mine, it was held that he must 
account to the firm foi the rental value of 
the property he used. Pierce v. Pierce, 
89 Mich. 233, 50 N. W. 851.] The 
case of Beecher v. Guilbane, Mosley, 3, 
is thus reported : "If one copartner 
borrows money of the other on his note, 
he shall pay interest for it, though he had 
more money in the stock than what he 
borrowed ; for the stock is only to be 
employed in augmentation of the trade, 
for their mutual benefit ; but neither of 



them can make use of it for their own 
private advantage." See Kelley r. Green- 
leaf, 3 Story, 93 ; Roberts v. Totten, 13 
Ark. 609 ; Pierce v. Daniels, 25 Vt. 624. ^ 

If one jiartner employ partnership funds 
in a private trade or adventure, he must 
account not only for the interest on the 
funds thus withdrawn from the partner- 
shi[), but also for the profits of such 
separate trade. Brown v. Litton, 1 P. 
Wms. 140 ; Crawshay v. Collins, 15 Ves. 
218 ; Stoughtou v. Lynch, 1 Johns. Ch. 
467 ; Solomon v. Solomon, 2 Ga. 18. 
And if such acts of one partner threaten 
the destruction of the joint property, or 
render it probable that the solvency of 
the firm and the rights of the creditors 
depend upon the interference of chancery, 
equity may interpose by injunction, even 
though a dissolution of the firm be not 
prayed for. Miles v. Thomas, 9 Sim. 607 ; 
Gratz V. Bayard, 11 S. & R. 41, 48. The 
same ]irinciples as to the use of the joint 
property apply to partners who wind up 
the affairs of the partnership after dissolu- 
tion. See post, ch. 12, 13, upon the dis- 
solution of a partnership and its effects. 
(kk) Easonv. Cherry, 6 Jones, Eq. 261. 
(/) Devall V. Burbridge, 6 W. & S. 
529 ; Jessup v. Cook, 1 Halst. 434. See 
M'llreath v. Margetson, 4 Doug. 278 ; In 
re Webb, 2 J. B. Moore, 500 : Lyles v. 
Styles, 2 Wash. C. C. 224. See Beste v. 
His Creditors, 15 La. Ann. 55. [So where 
a partner improperly pays an unjust bill, 
he and not the firm must be charged with 



§ 151.] RIGHTS AND DUTIES OF PARTNERS, 195 

caused by an honest mistake of judgment, unless it amounts to 
gross negligence or ignorance. (^11) 

The question may occur whether a negligence and consequent 
loss, in one respect, would be made up, or excused, by great suc- 
cesses and pi'olit in anotiier. It would perhaps be impossible 
to frame a definite rule which w^ould govern all cases of this 
kind. The general principle w^ould be something like this: If 
it were one transaction, quite indivisible, and tlie partner con- 
ducted it in some respects with a want of attention, which caused 
some loss, and in others with unusual care and skill and energy, 
which increased the profits, it could not be deemed on the whole 
a case of wrong demanding compensation. If, however, he had 
conducted throughout as be should have done, excepting in one 
or two particulars, and his default in these caused material 
injury, he should not be beld excused for thus lessening the 
profits of the firm l)y the fact that they were still, on the whole 
transaction, very considerai)le. For the partnership is entitled 
to all its profits, and may ask compensation of any one whose 
wrongful act takes them or a part of them away, whether he be 
a partner or not, and whether much or little be left. And if 
there be many transactions, or one business divisible into many 
transactions, that he did his duty for the most part would cer- 
tainly be neither excuse nor compensation for not doing it at all 
times. And ^ve should doubt whether equity would find it easy 
to regard him as protected against all claims for default or vio- 
lation of duty, because in certain things he did more than his 
duty. (??!) 

From the requirement of perfectly good faith, it follows that 
no partner must deceive his copartners, for his benefit and their 
injury, either by false representations or by concealments. Thus, 
if he persuades them into any course of business, or to any single 
transaction, by these means, and losses occur, he must sustain 
them or compensate for them. So, if he proposes to buy of them 
the wdiole or any part of their share of their business, and by any 
false statement or intimation on his part, or any concealment 
or prevarication, influences them to enter into an arrangement 
to effect his wishes, it will not be obligatory on them, (w) 

the amount. Yetzer v. Applegate, (la.) 50 (m) See Pothier, Contr. de Soc. n. 12.5. 

N. W. 66 ; Moore's Appeal, (Pa.) 19 Atl. (?i) Maddeforcl v. Austwick, 1 Sim. 89, 

753.] is a leading case. Tlie same principles are 

(II) Morris v. Allen, 1 McCarter, 44 ; asserted and maintained in the cases of 

and see Stephens v. Orman, 10 Fla. 9. Sexton v. Sexton, 9 Oratt. 204, and Hop- 

[Charlton v. Sloan, 76 la. 288, 41 N. W. kins v. Watt, 13 111. 298 ; Knij,dit v. 

303.] Marjoribanks, 11 Reav. 322, 2 ^laen. & 

G. io. [Brooks v. Martin, 2 Wall. 70. 



196 THE LAW OP PARTNERSHIP. [CH. VII. 

§ 152. Partner Making Secret Advantage. — If lie makes any 
private bargain with third parties for his own benefit, which 
either infiicts a loss upon the partnership, or turns to himself 
advantages which belong to all in common, he will be held to 
make compensation for this, or to restore these advantages to 
the partnership in some way. (o) ^ Thus, if the partnership have 
a valuable leasehold property, and, when it is about to expire, a 
partner privately gets a renewal of it to himself, he cannot take 
advantage of this to impose hard terms on his partncj's, but will 
be held to have obtained it for them as well as for himself, (p ) 

So, if he obtains goods for the partnership by barter of his own 
goods, he cannot charge an extra price for his goods. If he is 
properly carrying on a separate business, he may charge a fair 
living price ; so perhaps he may if he has them on hand in any 
way. But if he purchased them for this bargain with the part- 
nership funds or credit, or if he for the partnership might have 
bought in the same way, he will be allowed to put upon them 
only the price he paid, (q') So if he acts in buying for his firm 



(o) Fawcett v. Whitehouse, 1 Russ. & ship ; and this renewal mnst be held to 

M. 132, 135, 141, 148 ; Hichens v. Con- have been so obtained." The renewal, 

greve, 1 Russ. & M. 132, 150, note (6), during a copartnership, of a lease held by 

4 Russ. 562 ; also Carter v. Home, 1 Eq. a firm, and rendered more valuable bj- the 

Ca. Abr. "Account," A., pi. 13 ; Russell business of the firm, though made by one 

V. Austwick, 1 Sim. 52 ; [Kimberly v. partner to himself, and though it would 

Arms, 129 U. S. 512.] not have been made to the firm, inures to 

(p) Featherstonaugh v. Fenwick, 17 the benefit of the firm. Mitchell v. Reed, 

Yes. 298, 310 ; Dougherty v. Van Nos- 61 N. Y. 123 ; Struthers v. Pearce, 51 N. 

trand, 1 Hoff. Ch. 68, 69 ; Leach v. Leach, Y. 357. 

18 Pick. 68, 76 ; Anderson v. Lemon, 8 (q) Burton v. Wookej', 6 Madd. 367. 

N. Y. 236, 4 Sandf. 552. In Feather- The plaintiff and defendant entered into 

stonaughr. Fenwick, .szi^jra, the Master of partnership together to deal in lapis ca I- 

the Rolls said : " It is clear that one aminaris. The defendant, who was a 

partner cannot treat privatel}% and behind shopkeeper, was to take the active part in 

the backs of his copartners, for a lease of the concern, and to purchase the article 

the premises, where the joint trade is from the miners in whose neighborhood he 

carried on, for his own individual benefit, lived. After some tune, the defendant 

If he does so treat, and obtains a lease in adopted a course of dealing, by which, in 

his own name, it is a trust for the partner- place of paying the miners for the article 

1 So where a partner on whose recommendation the firm bought land received mye 
land from the seller by way of commission, he took it in trust for the firm. Hodge v. 
Twitchell, 33 Minn. 389, 23 N. W. 547. So where in the course of selling firm 
property or of other partnership transactions one partner gets a secret commission 
from the purchaser, he will be required to hold it for the firm. Newell v. Cochran, 41 
Minn. 374, 43 N. W. 84 ; Watts v. Patton, 66 Miss. 54, 5 So. 628 ; Whitman v. 
Bowden, 27 S. C. 53, 2 S. E. 630. The arrangement being fraudulent^ one partner will 
not be allowed to maintain an action on a contract to pay such a secret commission. 
Gleason v. Chicago,. M. & S. P. R. R. (la.) 43 N. W. 517- 



§ 153.] 



RIGHTS AND DUTIES OF PARTNERS. 



197 



a particular kind of goods which he also buys and sells on his 
own account, the firm are entitled to any profit he may make on 
his own goods sold to the firm, (r) And if, on the other hand, 
a partner gives the goods of the partnership in barter for some- 
thing he buys, or otherwise uses them for his own benefit, he 
must allow the partnership the full market-price for them, or 
what any customer would have i)aid, unless the usage of the firm 
or their stipulations permit him to make his personal profit out 
of them. 

§ 153. Hovr far Partner may transact Independent Business. — It 
is quite well settled that a partner has no right to carry away his 
knowledge, his skill, his capital or credit, his care or labor, iiito 
another business, whether only his own or that of another firm, 
to the injury of his first copartners. That is, he may not do this 
such a way as to deprive them of business, of profits or advan- 
tages, which they had a right to expect from their connection 
with him. (6-) As there is in practice no such thing as a uni- 



with money, he paid them with shop- 
goods ; and in his account with the 
plaintiir he charged him as for cash paid, 
to the amount of the price of the goods. 

Tlie ([uestion was, whether he couhl 
justify this charge, or whether he must not 
divide the prolit made by him ou the sale 
of the goods with the phxiutitf. 

Tiie Vice-Chaucellor said: "I must 
decree an account of the profit made by 
the defendant in his barter of goods, and 
must dechare that the pUiintitf is entitled 
to an e(iual division of that profit with the 
defendant." 

(r) Bentley v. Craven, 18 Beav. 7.5. In 
this case the firm carried on the business 
of sugar-refiners. One of the members 
was a wholesale grocer, who had great 
knowledge of the proper time for buying 
sugai's, and who, therefore, was selected as 
the buying agent of the firm. He bought 
sugars on his own account, in anticipation 
that the firm would need them ; and, when 
the}' were required, sold them to the firm 
at the then market-ju-ice. It was held that 
the firm was entitled to any profit he 
might have made. But when a partner- 
ship is entered into for the purpose of 
transacting a commission business, — one 
to furnish buildings and fixtures, and the 
other to keep the books and give his 
personal attention to the management of 



the business, — the latter may, after the 
houses furnished by the former are full, 
and the former refuses to furnish further 
warehouseroom, put up other warehouses, 
and extend the business, to his own exclu- 
sive profit, provided he does not neglect 
the business of the firm. Parnell v. Rob- 
inson, 53 Ga. 26. 

{s'l See Boulay Paty, Cours de Droit, 
Com. torn. ii. 94. Sir, John Leach said, 
in Glassington v. Thwaites, 1 Sim. & S. 131, 
133, " The piinciples of courts of equit}' 
would not permit that ]iarties bound to 
each other by express or implied contract, 
to promote an undertaking for the com- 
mon benefit, should any of them engage 
in another concern, which necessarily gave 
them a direct interest adverse to that 
undertaking." In Long v. Majestre, 1 
Johns. Ch. 305, A. & B. carried on trade 
as partners, the capital being supplied by 
A. B. without the consent of A., and 
without rendering any account or dissolv- 
ing the partnership, formed a new part- 
nership with C, and carried into that 
house all the funds of the original firm, 
and used them therein till his death. The 
plaintiff filed his bill against the adminis- 
tratrix of B., and against C, his surviving 
partner, claiming to be entitled to the 
whole share of the de(;eased in the last 
partnership, alleging that a great part of 



198 THE LAW OP PARTNERSHIP. [CH. VII. 

vei'sal partnership, so no partner is obliged, by the mere fact of 
partnership, to do nothing else than the business of the par;:ner- 
ship. It IS probably not true in fact that the majority of part- 
ners confine themselves absolutely and exclusively to partnership 
business, or that it is expected or necessary that they should, {t) 
And it may be very difficult for a court to distinguish between 
the case of an honest several business, taking only its due share 
of time, capital, care, Arc, and an instance of unlawful with- 
drawing from a partnership of what belongs to the firm.^ But 
the line must be drawn somewhere ; and courts have sometimes 
applied the rule with so much severity as to avoid transactions 
or compel compensation where the partner could not be charged 
with anything more than exposing himself to a bias in his own 
favor, and prejudicial to the partnership, (m) 

tlie personal estate of the deceased had equity that a person who stands in a 

Come into the hands of C. ; and praying relation of trust or confidence to another, 

tliatC. might be compelled to set forth a shall not he jiermitted, in pursuit of his 

full and true account of the joint trans- private advantage, to place himself in a 

tactions between him and the deceased, and situation which gives him a bias against 

of the personal estate of the latter in his the due discharge of that trust or confi- 

hands. C. demurring to so much of the deuce." But the mere fact that ]iartners 

bill as called for the discovery and account are so situated as to be under a temptation 

above stated, the demurrer was overruled, to improperly use the partnership property 

And see Law v- Cross, 1 Black, 533 ; is not sufficient to induce eijuity to inter- 

Soules f. Burton, 36 Vt. 652. fere by injunction. See Glassington v. 

{/) See remarks of Willard, Vice-Chan- Thwaites, 1 Sim. & S. 124. 
cellor, in Caldwell v. Lieber, 7 Paige, 483, The considerations ajjplicable to the 

494, 495; Ship "Potomac," 2 Black, 48L case of surviving partners, who are ap- 

{u) Burton u. Wookey, 6 Madd. 367; pointed executors of deceased copartners, 

ante, § 153, note ((j). Sir John Leach will be suggested hereafter. Pusl, ch. lb. 
t