W., and to make reports to him of the receipts and expenditures of the boat. The receipts were to be applied, 1st, to the payment of the boat's expenses; 2d, to her insurance; 3d, to the payment of $6,000 to W., and the balance to be divided between W. and T. T. was to be allowed $300 per annum for his services as agent of the boat. It was held that although by this agreement the parties became partners after a certain event in the profits of the business of the boat, they were not partners to such an extent as to oust the admiralty court of jurisdiction in a cause for the recovery of damages for a breach of the agreement. Ward v. Thompson, Newb., 95.

§ 42. An agreement was entered into between M. & S., a firm in one city, and H., a certain party in another, under which the latter bought several cargoes of wheat and shipped them to the former, they paying for the same, and the profits or losses were equally divided. A certain cargo was bought under such agreement with funds advanced by a bank, to F., the cashier of which, H., gave a draft upon M. & S., with the bill of lading of such wheat and a certificate of insurance. The draft, bill of lading and certificate of insurance were forwarded, and the draft was paid by M. & S., who received the bill of lading and certificate of insurance. H., mistaking the purport of a dispatch from M. & S., gave notice to the insurance company that the insurance was canceled, but the certificate had already been delivered to F. Held, that the purchase and shipment of each cargo was a separate venture, and that H. acquired no interest as a partner with M. & S. in any of the cargoes; that he had no authority to cancel or give notice of cancellation of the policy of insurance while it was in the hands of a bona fide holder entitled to payment of loss, if any. And that the certificate, being then in the hands of M. & S., as assignees of F., they could, upon a loss of the cargo, sustain a libel for the insurance. Marsh v. Northwestern National Ins. Co., 3 Biss., 351.

§ 43. A entered into a contract with B., whereby A. undertook to carry on the butchering business for B. at B.'s establishment, "as his agent and salesman to purchase cattle, slaughter them and sell the beef, and to do all acts necessary in reference thereto;" "the offal, feet and the commission on hides, and the usual slaughter-house perquisites," were to go to B., and A. was to receive "in lieu of wages or other compensation, all he" could "make over and above the current price of cattle after deducting all expenses." A. was to account daily to B.. and pay over to him all moneys received until B. was fully reimbursed for the stock and expenses. Held, that the agreement did not create a partnership. In re Blumenthal,* 18 N. B. R., 555.

§ 44. Although A. may be interested with B. in his interest in a partnership consisting of B. and two others, that does not make him a member of the latter partnership. Bybee v. Hawkett, 12 Fed. R., 649.

§ 45. W. was an experienced merchant, but without means. B. and P. each had some money which they were willing to risk in a mercantile enterprise, but did not intend to render themselves liable for the debts of the concern should it prove unsuccessful; to avoid this they advanced the money to purchase the stock of merchandise, the business to be carried on in W.'s name alone, giving to them the option to share in the profits if successful, or if not successful, then to receive back the amount advanced with ten per cent. interest. P. becoming dissatisfied demanded a settlement, when B. executed his note to him for the balance due him, which was afterwards made. B., upon the business being broken up, took what was left of the goods as a creditor. Shortly afterwards the petitioners filed their petition in bankruptcy against W., B. and P. Held, that without an election on the part of B. and P. to share in the profits, there was no partnership between W., B. and P. in the meaning of the bankrupt law, although they might be liable to creditors as having by their acts justified such creditors in believing that they were partners. Moore v. Walton,* 9 N. B. R., 402.

$ 46. Where cattle were delivered to certain parties by the owner to be herded, for a certain time, upon an agreement that after the expiration of the time the owner should sell them, and, after deducting their valuation when delivered, divide the remainder of the proceeds with said parties, it was held that there was no partnership, since there was no community of loss, community of title, community of expenses, nor a common right to dispose of the property. Beckwith v. Talbot,* 2 Colo. Ty, 639.

§ 47. A lay or share in the proceeds or catchings of a whaling voyage does not create a partnership in the profits of the voyage, but is in the nature of seamen's wages, and governed by the same rules. Coffin v. Jenkins, 3 Story, 108.

§ 48. A trust was constituted by deed, to purchase bonds, from a fund to be raised by subscription. The subscribers received certificates, payable to bearer, entitling the holder to participate in the distribution of the profits and proceeds of the trust investments by a drawing in a mode set out in the deed. Held, that the certificate holders were not partners. Johnson v. Lewis, 2 McC., 479.

§ 49. A contract between a dispatch company and various railroad companies for a through rate on goods, shipped from St. Louis to New York, to be divided between themselves upon

the basis of the distance the goods were carried by each road, and providing for periodical accountings and settlements, does not constitute them partners inter sese or as to third persons. Insurance Co. v. Railroad Co., 14 Otto, 146.

§ 50. Two firms, Warner, Dickson & McElrath, and Anderson & Co., entered into an agreement in respect to the peach business, by which moneys, the proceeds of the sales of peaches, were deposited to the credit of Warner, Dickson, McElrath & Co., to keep them separate from money on deposit in the same bank to the credit of Warner, Dickson & McElrath. Held, that this agreement did not constitute a partnership between the members of the two firms; and a petition in bankruptcy filed by the holder of checks, signed by Anderson in the name of Warner, Dickson, McElrath & Co., against the members of both firms, was dismissed. In re Warner,* 7 N. B. R., 47.

$51. In the case of joint patentees, where no agreement of copartnership exists, the relation of copartners does not result from their connection as joint patentees; nor where one joint owner transfers his undivided interest does his assignee become the partner of his coproprietor. Pitts v. Hall, 3 Blatch., 201.

$ 52. A joint interest in a patent does not make those interested partners. Parkhurst v. Kinsman, 1 Blatch., 488.

§ 53. Proof of partnership. In an action brought against several defendants as partners, to recover the price of a saw-mill, the answer of the only one who appeared and defended admitted that he and the other defendants "were interested together in the business" of manufacturing lumber and intended to procure a saw-mill, but denied that they or either of them applied to plaintiff to purchase a saw-mill. Held, that this language of the answer, in connection with uncontradicted evidence that the mill was at the time of the alleged sale in the possession and use of the defendants, and with the language of a letter referring to the partnership, justified the court in saying, in the charge to the jury, that the existence of the partnership was conceded. Porter v. Graves,* 14 Otto, 171.

§ 54. Partnership may be proved by parol as well as by written evidence; and an authority or ratification from one partner to another to bind the firm need not be in writing. Moran v. Prather, 23 Wall., 492.

$55. Where the question before the jury was whether or not one of the defendants was a partner in a commercial firm, it was proper for the court to exclude the declarations made by the defendant in the absence of the plaintiffs. It was also proper not to confine the attention of the jury to declarations made at one particular time in the presence of one of the plaintiffs, but to allow all similar declarations to be given in evidence, so that the jury could judge of the entire question of the existence of the partnership. Teller v. Patten, 20 How., 125.

§ 56. The plaintiff, assignee of a bankrupt, claimed that a partnership formerly existing between said bankrupt and others was dissolved prior to a certain transaction. The defendants insisted that it continued down to the close of the business involving said transaction, and offered in evidence the declarations of the former partners of the bankrupt touching the points in controversy. Held, that such testimony was properly excluded; the partners should have been called as witnesses. Nudd v. Burrows, 1 Otto, 426.

$57. To prove a partnership parol evidence cannot be given of the contents of printed cards bearing their joint names, nor are the cards themselves evidence unless traced to the defendant. Nor can general reputation of partnership be given in evidence. Wilson v. Colman, 1 Cr. C. C., 408.

§ 58. The allegation of a partnership between the master and mate of a vessel is not sustained by proof that the mate shipped for a share of the profits, unattended by other circumstances, and without proof of what that share was to be. The Crusader, 1 Ware, 437. $59. The acknowledgment of a debt by one partner will bind another partner after the partnership is proved; but it is not sufficient or proper to be given in evidence to prove a partnership. Corps v. Robinson, 2 Wash., 388.

§ 60. The question of partnership or no partnership in the case of persons not ostensibly partners. is one of fact; the old rale of the common law, that participation in the profits is ipso facto conclusive of a partnership, is not the law to-day, but such participation is strong evidence of a partnership. In re Ward,* 2 Flip., 462.

§ 61. Evidence that one of two persons sought to be charged as partners procured a loan for the other to use in a cotton speculation, and that the latter gratuitously promised that he would give him a share of the profits, if he made any, not mentioning any definite share or amount, is not sufficient evidence of a partnership to require the submission of the question to the jury. Pleasants v. Fant,* 22 Wall., 116.

§ 62. On an issue of partnership, an offer to pay the partnership note, if the holder would take property, is evidence; and also that the defendant said the note was signed by his part. Thomas v, Wolcott, 4 McL., 365.

ner.

SUMMARY

II. PARTNERSHIP PROPERTY.

· Real estate; judgment lien, § 63.- Conveyance by survivor for benefit of credit

ors, § 64.

§ 63. Partnership real estate is to be treated as personalty so far as is necessary to secure the payment of the firm debts and advances made by the partners respectively, but for every other purpose it remains subject to the principles and laws applicable to real estate. Thus a judgment against a partnership for a partnership debt is a lien on the partnership real estate. In re Codding, S$ 65, 66.

§ 64. If a surviving partner conveys all the firm property to a trustee for the benefit of creditors of the firm, purchasers from the trustee of partnership real estate can, by bill in equity, compel one in whom the legal title to an undivided half of the real estate has vested by the will of the deceased partner to convey such title to them. Shanks v. Klein, §§ 67, 68. [NOTES.-See $69-92.]

IN RE CODDING.

(District Court for Pennsylvania: 9 Federal Reporter, 849–851. 1881.)

Opinion by ACHESON, J.

STATEMENT OF FACTS.- This contest is over a fund realized from the real estate of the bankrupts, sold by the assignee divested of liens. The claimants are Lawrence Butler and Matthew Jackson, two judgment creditors of the bankrupt firm, on the one hand, and, on the other, the assignee in bankruptcy. The judgments are not assailed as unlawful preferences, but it is denied that they were liens against the real estate; and therefore the assignee claims the fund for the benefit of the general creditors of the firm.

No exceptions having been filed to the register's findings of fact, their correctness will be assumed. These findings are substantially as follows: John A. Codding and Chauncey S. Russell, the bankrupts, composed the firm of Codding & Russell. The said real estate was owned and held by the bankrupts, as copartners, for partnership purposes and as partnership property. The judgment of Lawrence Butler was entered against "Codding, Russell & Co." (a name by which the firm was formerly designated), upon a judgment note signed "Codding, Russell & Co." The judgment of Matthew Jackson was entered against "Codding & Russell," upon a judgment note signed "Codding & Russell." The consideration of each note was money loaned to and used by the partnership. Both partners participated in giving the notes, and the judgments thereon were each entered at the suggestion of both the part

ners.

$ 65. How far and under what limitations real estate purchased with partnership funds and brought into a firm is to be treated as personalty.

Any question growing out of the Butler judgment note having been entered up in the old firm name may be dismissed from the case; for the Jackson judgment alone, under the rule which prevails in this court to allow interest on a judgment down to the time of distribution, would absorb the whole fund; and Jackson does not question the lien of Butler's judgment, or his right to be paid out of the proceeds of sale. The question upon which the case turns is whether a judgment against a partnership, for a partnership debt, entered by confession of the firm, and at the suggestion of all the partners, is a lien against the partnership real estate. The register held that it was not, and he awarded the fund to the assignee in bankruptcy. The decision of the register rests exclusively upon the assumption that partnership real estate is personalty, and therefore not the subject of a judgment lien. But the doctrine that part

nership real estate is to be treated as personalty is not to be pushed too far. Real estate brought into a firm as stock is not converted absolutely and for all purposes. The conversion manifestly has its limitations. For example, partnership real estate unquestionably is governed by the statute of frauds. Again, to pass the title each partner is required to join in the conveyance. Story, Part., § 94; Parsons, Part., § 377.

§ 66. Partnership real estate is subject to a lien of a judgment against the partnership for a partnership debt.

I suppose no one would seriously maintain that on an execution against a firm a constable could seize and sell their real estate. It was held in Foster's Appeal, 74 Pa. St., 391, that after payment of the firm debts and the advances made by the surviving partner, the remaining share of a deceased partner in partnership real estate passed, not to his personal representatives, but to the widow and heirs. Conversion of partnership real estate is allowed to secure, in the interest of the partners themselves, the payment of the firm debts and advances made by the partners respectively. Id. Therefore, the true doctrine, as I conceive, is that in so far as may be necessary to attain those ends, partnership real estate is to be treated as personalty, but for every other purpose it remains real estate, and is subject to the principles and laws applicable to that species of property. Why, then, is partnership real estate not bound by the lien of a judgment against the partnership for a partnership debt, especially where such judgment is entered by confession of the firm and at the instance of all the partners? From a very early period it has been the settled law of Pennsylvania that a judgment is a lien on every kind of right,— on every sort of beneficial interest, in real estate, vested in the debtor at the time of the judgment. Caskhuff v. Anderson, 3 Binn., 9; Troubat & H., §§ 58, 778; Price, Liens, 277.

The general creditors of a firm are preferred in the distribution of firm assets wholly by virtue of the equities of the partners, and not on account of any equities of their own. They themselves have no lien upon the partnership property. What right, therefore, have they, or an assignee in bankruptcy who represents them, to gainsay the lien of a judgment upon the partnership real estate, where that judgment is for a firm debt, and was entered against the partnership by the confession of the firm? The validity of a mortgage given by partners upon partnership real estate was distinctly recognized in Lancaster Bank v. Myley, 13 Pa. St., 544. But if the partners may incumber their real estate by mortgage, why may they not do so by judgment? Undoubtedly it was the intention of Codding & Russell to give Butler and Jackson judgment liens, and I am at a loss to see upon what principle that intention is to be frustrated by the assignee in bankruptcy, who stands, in this matter, in no better position than the bankrupts themselves.

While, perhaps, the precise question now before me has not been judicially determined, yet in more than one case the validity of such judgment liens, it would seem, has been assumed. Overholt's Appeal, 12 Pa. St., 222; Erwin's Appeal, 39 Pa. St., 535. And it is said by Mr. Price, in his work on liens, that a judgment for a firm debt would bind the real estate of the firm. Price, Liens, 280, 281. And now, December 21, 1881, the exceptions to the register's report are sustained; and it is ordered that the fund for distribution be applied first to the payment of the judgment of Lawrence Butler, and the residue to the judgment of Matthew Jackson, and that the assignee pay the fund to said judgment creditors in accordance with this decree.

SHANKS v. KLEIN.

(14 Otto, 18-24. 1881.)

APPEAL from U. S. Circuit Court, District of Mississippi.

Opinion by MR. JUSTICE MILLER.

STATEMENT OF FACTS.- This is a bill in chancery filed by John A. Klein and others against David C. Shanks, executor of the last will and testament of Joseph H. Johnston.

The substance of the bill is, that in the life-time of Johnston there existed between him and Shepperd Brown a partnership, the style of which was Brown & Johnston; that their principal place of business was at Vicksburg, in the state of Mississippi, where they had a banking-house; that they had branches and connections with other men in business at other places, among which was New Orleans; that they dealt largely in the purchase and sale of real estate, of which they had a large amount in value on hand at the outbreak of the recent civil war; that this real estate was in different parcels and localities, and was bought and paid for by partnership money, and held as partnership property for the general uses of the partnership business; and that early in the war, namely, in 1863, Johnston died in the state of Virginia, where he then resided, leaving a will by which all his property, including his interest in the partnership, became vested in Shanks, who was appointed his executor.

It seems that both Brown and Johnston were absent from Mississippi and from New Orleans during the war,- the one being in Virginia and the other in Georgia. Upon the cessation of hostilities, Brown returned to New Orleans, and visited Vicksburg to look after the business of the firm of Brown & Johnston, and the other firms with which that was connected. Finding that suits had been commenced by creditors of the firm against him as surviving partner, and, in some instances, attachments levied, he became satisfied that unless he adopted some mode of disposing of the partnership property and applying its proceeds to the payment of the debts in their just order, the whole would be wasted or a few active creditors would absorb it all. Under these circumstances, acting by advice of counsel, he executed a deed conveying all the property of the firm of Brown & Johnston to John A. Klein, in trust for the creditors of that partnership, and providing that the surplus, if any, should be for the use of the partners and their heirs or devisees. Klein accepted the trust, and pursuant thereto paid debts with the lands, or with the proceeds of the sale of them.

There is an allegation that Shanks, while acting as executor, and about the time the deed of trust was made, had an interview with Brown, and being fully informed of the condition of the affairs of the partnership, expressed his approval of what Brown intended to do. This is denied in the answer, and some testimony is taken on the subject. Other questions of bad faith on the part of Brown are raised. But in the view which we take of the case, the record establishes that Brown acted in good faith, and did the best that could be done for the creditors of the partnership and for those interested in its property.

It appears that after all this property had been sold to purchasers in good faith, Shanks, as executor of Johnston's will, instituted actions of ejectment against them. They thereupon filed this bill to enjoin him from further prosecuting the actions, and compel him to convey the legal title to the real estate