it is in his custody and control, and he is a trustee of it, accountable to the firm, and can maintain an action for its loss in his own name. Myers v. Cottrill, 5 Biss., 465.

§ 452. Where a member of a partnership makes an individual contract with a third person, he may sue thereon in his own name notwithstanding the correspondence is conducted through the firm and he had agreed to give his copartners an interest in the contract. Law v. Cross, 1 Black, 533.

§ 453. Where a contract is made and the work under it done by a certain person, the fact that he had a partner interested in the profits of the contract does not make it necessary that such partner should be a party to a suit upon the contract. Simpson v. Baker, 2 Black, 581. § 454. Against one partner.-H. drew a bill of exchange on "B. & Co.," which B., one of the firm, accepted for the accommodation of H., without restriction, and without the knowledge or consent of his partners, and not in the course of the partnership business, by writing the name of the firm on the bill. Held, that a recovery could be had against B., as sole acceptor, under a count in the declaration stating the bill to have been drawn on B. & Co., and to have been accepted by B. by the name and style of B. & Co., by writing the name of B. & Co. thereon. City Bank of Columbus v. Beach, 1 Blatch., 438. effect on firm.- Under a separate commission of bankruptcy against one partinterest in the joint effects passes. Harrison v. Sterry, 5 Cr., 289. when bar to further action.- Under the common law rule a judgment against one partner on a partnership note merges the note in the judgment, and the judgment is a bar to an action against the others, though they were dormant partners, and this fact was unknown to the plaintiff when the action was commenced. But by the statute of the state of Michigan, known as the joint debtor act, the common law rule is changed, and a judgment may be obtained against one of several joint debtors, and the demand against the others not sued is not merged in the judgment against the one brought into court. Under this statute, a judgment against one partner in Michigan is not a bar to a suit against the others, in the same state, and, giving the judgment the same effect and operation in other states, it is no bar to such a suit in such states. Mason v. Eldred, 6 Wall., 231.

§ 455. ner, only his § 456.

§ 457. Where a judgment has been obtained against one of two partners on a joint promise, an action at law against the partners cannot be maintained on the same ground. Sedam v. Williams, 4 McL., 51.

§ 458. A judgment against one partner, in a suit against him and two other copartners, merges the instrument on which the action was founded, and such judgment may be pleaded in bar to an action on the instrument against one or all of the partners. Woodworth v. Spaffords, 2 McL., 168.

$459. levy on firm property. A court of equity will enjoin the levy of an execution against one partner on property of the firm in which it is admitted he has no interest which can pass by a sale. Cropper v. Coburn, 2 Curt., 465.

§ 460. A purchaser under an execution against one partner becomes a tenant in common with the other partners in an undivided share of the land purchased subject to all the rights of the other partners. Until the partnership debts are paid, he can have no claim but on the separate interest of the individual partner in the residue. Gilmore v. North American Land Co., Pet. C. C., 460.

§ 461. Under an execution against a member of a firm individually, the sheriff may seize the goods of the firm and sell the defendant's moiety in them, in which case the vendee will be tenant in common with the other partner. United States v. Williams,* 4 McL., 236.

§ 462. Unless the officer levying the execution can make an arrangement satisfactory to himself, he has a right to take the whole of the goods into his possession until the sale. Ibid. § 463. Name.- In an action for goods sold by Tibbs & Company, the plaintiffs must prove themselves to be the firm of Tibbs & Company. Tibbs v. Parrott, 1 Cr. C. C., 313.

§ 464. The names of a firm must be proved, but where some evidence has been given on the point the court will leave it with the jury. Varnum v. Campbell, 1 McL., 313.

§ 465. Offset. Although one partner is bound singly to pay the whole of a partnership debt, unless he compels the plaintiff by a proper plea to join his partner, yet he cannot when sued alone offset a debt due to the partnership, as he is not entitled to the whole of a partnership debt. Jordan v. Wilkins, * 3 Wash., 110.

§ 466. In an action to recover for labor in packing pork, held, that the defendant might show, under the general issue and a plea of payment, that plaintiff was a partner in a commission house to which defendant had consigned the pork, and that the house owed defendant for the proceeds of sales of the pork an amount exceeding plaintiff's claim; and that such facts if proved would be a defense. Buckingham v. Burgess,* 3 McL., 364.

§ 467. One who obtains employment by representing himself to be a partner in a certain concern thereby renders his claim for services subject to an offset which would be good

against a partner in the concern, whether or not he is in fact a partner. Buckingham v. Burgess,* 3 McL., 364, 549.

§ 468. Creditor's remedy after death of partner. Upon the death of a partner, a partnership creditor may, at his option, proceed at law against the surviving partner, or go at once into equity against the representatives of the deceased partner, and in such equity suit he may and should join the surviving partner, as well as the representatives of another deceased partner. Nelson v. Hill,* 5 How., 127.

§ 469. Where such deceased partner was a member of two firms, the creditors of both may join in the same bill and make the other partners of both firms, or their representatives, parties defendant, so that a proper accounting may be had. Ibid.

§ 470. Jurisdiction.- Although the probate courts in a state may have ample power to direct the application of copartnership property to the payment of the debts of the firm, yet a partnership creditor who is a citizen of another state is not compelled to go into the state tribunals for the purpose of asserting his rights to such property, but he may proceed in equity in the federal courts, the marshaling of such assets being one of the original subjects of equity jurisdiction. Fiske v. Gould,* 12 Fed. R., 372.

§ 471. Against firm on note of partner. If a person advance money to a partnership on the note of an individual member, knowing it is to be used for firm purposes, he cannot sue the other partner. If, in ignorance of the fact that it is to be so used, he advances money on such a note, and subsequently sues the individual partner, he cannot afterwards sue the other partner. In re Herrick,* 13 N. B. R., 312.

§ 472. Against firm by representatives of deceased partner.-Declarations of a deceased partner as to the extent of his interest in the partnership, not made in the immediate presence of his copartners, cannot, in a suit by his representatives against his copartners, overcome the sworn statements of the defendants in answers responsive to the allegations of the bill. Moore v. Huntington,* 17 Wall., 417.

§ 473. A suit against surviving partners by the administratrix of a deceased partner, alleging the plaintiff to be sole heir as well as administratix, may be sustained in favor of plaintiff as administratrix, although there are other heirs who are not joined. Ibid.

§ 474. Pleading and practice.-Where two parties are sued as partners, and the separate answer of one alleges, as new matter in defense, that the defendants were for a short time associated in business under said firm name, but that one furnished all the capital stock, and by special agreement was to be liable for all debts incurred, and that the other, the party answering, was to receive one-third of the profits in compensation for his services, and that plaintiff had actual knowledge of said agreement while in the employment of said partnership, it was held that the new matter was insufficient, as it stated facts which legally constituted a partnership, and that, in order that the special agreement should affect the plaintiff, it was necessary to aver that plaintiff had notice or actual knowledge of such agreement before the liability alleged in the complaint accrued. The allegation that plaintiff had such knowledge while in the employment of said partnership was too vague. Lomme v. Kintzing.* 1 Mont. T'y, 290.

§ 475. In an action on a promissory note by a firm, no affidavit by the defendants having been filed, denying their signatures, it was held unnecessary to prove the partnership of the plaintiffs, the defendants, by their remissness, having admitted that. Pratt v. Willard, 6 MeL., 27.

§ 476. Where the contract shows that the defendants are liable jointly, it is not necessary to allege or prove a partnership. Kendall v. Freeman, 2 McL., 189.

§ 477. If goods sold belonged to a partnership at the time of sale, the action must be brought in the name of all the partners, although the defendant was ignorant of the partnership. Bennett v. Scott, 1 Cr. C. C., 339.

§ 478. In a declaration upon a bill of exchange, payable to L., F. & Co., all the persons composing the firm must be named, with an averment that they were joint partners or joint traders under the name and firm of L., F. & Co., otherwise the bill of exchange cannot be received in evidence. Lapeyre v. Gales, 2 Cr. C. C., 291.

§ 479. In general, in a bill in equity, the answer of one co-defendant is no evidence against another. But this rule does not apply to the case where the defendants are all partners in the same transaction, for in such case the answer or confession of either is evidence against the others. Van Reimsdyk v. Kane,* 1 Gall., 630.

480. Where, upon a submission by one partner of all matters in controversy between the partnership and the person entering into the agreement of reference, an award was made directing the payment of money, in an action on the bond, to abide by the award, the breach assigned was that the partner who agreed to the reference did not pay, etc. This is a sufficient assignment of a breach, as he only who agreed to the reference was bound to pay. Karthaus v. Ferrer, 1 Pet., 222.

$ 481. The declaration in an action against one partner only never gives notice of the claim being on a partnership transaction. The proceeding is always as if the party sued were the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained. Barry v. Foyles, 1 Pet., 311.

§ 482. Where suit is brought upon a partnership transaction, against one of the partners, and the declaration stated a contract with the partner who is sued, and gave no notice that it was made by him with another person, evidence of a joint assumpsit may be given in support of a declaration; and the want of notice has never been considered as justifying an exception to such evidence at the trial. Ibid.

§ 483. The rule that the answer of one defendant in equity is no evidence against a codefendant does not apply when the defendants are partners. Van Reimsdyk v. Kane,* 1 Gall., 630.

§ 484. necessary parties.-The representatives of a deceased partner need not be made parties to a bill filed by the surviving partner, as they have no claim until the partnership debts are paid, and then it is upon the surviving partner or his representatives. Pagan v. Sparks, 2 Wash., 325.

§ 485. Evidence.- A partnership debt may be given in evidence to support a several assumpsit by one of the partners. Elmondson v. Barrell, 2 Cr. C. C., 228.

§ 486. The interest of a copartnership cannot be given in evidence on an averment of individual interest, nor an averment of the interest of a company be supported by a special contract relating to the interest of an individual. Grave v. Boston Marine Ins. Co., 2 Cr., 419. § 487. Until a prima facie case of partnership is established, the declarations of one of the alleged partners that the other is a partner are inadmissible. Pleasants v. Fant,* 22 Wall., 116.

§ 488. A deed signed "H., D. & Co." is admissible in evidence as the deed of the firm upon proof of the concurrence of its members not signing it. Darst v. Roth,* 4 Wash., 471.

$489. Parties cannot give their private conversations or correspondence, with one another or their agent, to rebut proof that they were partners of a third person, or held themselves out to the public as such. Freeborn v. Smith, 2 Wall., 160.

$490. Where the evidence shows that a note executed by a member of a firm, in the firm name, was given in settlement of an account for goods sold to said firm, the testimony of a person that said party executing the note was a member of the firm when the goods were bought should be admitted. Buck v. Smith,* 2 Colo. T'y, 500.

§ 491. Miscellaneous.- Partnership property was attached by the marshal, and afterwards released, upon the defendants filing a bond with sureties to pay the amount of the judgment that might be recovered against them in the suit in which said attachment issued. The suit being afterwards dismissed against two of the partners upon their plea to the jurisdiction of the court, and judgment recovered against the administrator of the third partner, upon an objection that the judgment recovered was not such as described in the bond, it was held that any judgment which would have bound the property, if it had remained under attachment, would bind the obligors in the bond, in a case where the suit was commenced against the partnership upon a partnership contract, and the property attached was partnership property. Inbusch v. Farwell, 1 Black, 566.

§ 492. Where a suit was brought against a partnership, and one partner pleaded an adjudication of bankruptcy, and the court directed a stay of proceedings as to him, and rendered judgment for the plaintiff to be enforced against the partnership property, and the individual property of the other partner, it was held that, if error, it was such as neither appellant could complain of. Lomme v. Kintzing,* 1 Mont. T'y, 290.

3. Against Estates and Representatives of Deceased Partners.

§ 493. The payment of a bill of exchange may be enforced in equity against the executors of a deceased partner, or joint contractor, when the survivors are insolvent. Van Reimsdyk v. Kane,* 1 Gall., 630.

§ 494. In such case no decree need be had against the survivors if their insolvency is apparIbid.

ent.

§ 495. Witnesses.- One partner, who is jointly liable with the others, is a good witness against them in a bill in equity. Ibid.

§ 496. Pleading.- A bill to charge the executors of a deceased partner with a partnership debt must expressly charge an insolvency of the survivor. Van Reimsdyk v. Kane, 1 Gall., 371.

$497.

necessary parties.-To a bill in equity brought against the estate of a deceased partner to recover a debt due from the firm, the surviving partners should be made parties. If they are out of the jurisdiction the court may dispense with their being made parties, but it is a matter in the sound discretion of the court whether, under all the circumstances, it ought to do so or not. Vose v. Philbrook,* 3 Story, 335.

VIII. LIMITED PARTNERSHIPS.

SUMMARY - Payment of share in merchandise, § 498.— Certificate, § 499.— Liability of special partner, § 500.- Custom of general-partners, § 501.

$498. Under the provision of 1 Revised Statutes of New York, 764, section 2, relating to limited partnerships, requiring the special partner to contribute his share of the capital "in actual cash payment," and granting him an exemption from liability beyond the fund "so contributed by him," and requiring a certificate to be filed stating the amount contributed by each special partner, accompanied by an affidavit stating that the sums specified in the certificate to have been so contributed "have been actually and in good faith paid in cash," if part of a special partner's contribution to the capital stock is made in merchandise he will not be entitled to any of the benefits of the act, although the certificate states the facts as they are. In re Merrill, §§ 502-505.

$499. A provision of the statute, requiring the certificate to state "the amount of capital which each special partner shall have contributed to the common stock," is not satisfied by a certificate that the special partner had contributed "$1,000 in cash and about $8,000 of effects and property, the exact amount of which is yet to be ascertained." Ibid.

§ 500. A provision of a statute regulating limited partnerships, that the general partners only shall be authorized to transact business and to bind the firm, does not enable the general partners to bind the special partner by transactions beyond the scope of the partnership business. Taylor v. Rasch, §§ 506, 507.

$501. The scope of the business of a limited partnership, as specified in the partnership articles, cannot be changed or enlarged, so as to affect the special partner, by any departure therefrom by the general partners, no matter how common or long continued, if not consented to or known and acquiesced in by the special partner. Ibid. [NOTES. — See §§ 508–513.]

IN RE MERRILL.

(Circuit Court for New York: 12 Blatchford, 221-225. 1874.)

Opinion by WOODRUFF, J.

STATEMENT OF FACTS.- The firm of Merrill, Wilder & Co. were charged by a creditor with having committed acts of bankruptcy, and in the petition it was averred that the firm was composed of William G. Merrill, David Wilder, Villars Merrill, Junior, and George J. Letchworth, all general partners therein. The application for a decree adjudging them bankrupts was resisted by Letchworth, only on the ground that he was not, and had never been, a general partner, but was only a special partner in the firm, and that the copartnership was a limited copartnership, formed under the provisions of the statutes of the state of New York, wherein he was in no wise liable for the debts of the firm otherwise or beyond the capital he had contributed to the common stock. The district court held him to be a general partner, and adjudged all the partners. bankrupt, and that adjudication Letchworth seeks to review and reverse in this court. His petition of review states the facts upon which the adjudication proceeded, and, as the allegations of the petition are not denied, they are to be deemed admitted for the purposes of the review.

The only facts which I deem it material to notice, and upon which the petition will be disposed of, are, that the parties attempted to form a limited partnership in which Letchworth should share in the profits of the business to be carried on, and have the immunities which the statutes authorizing such co

ness.

.

partnerships allow, and yet not contribute, nor be bound to contribute, his share of the capital in cash. They entered into articles of copartnership containing numerous details touching the business to be carried on, stipulating that each of the four partners should share equally in the profits and losses of the busiThe consideration for which Letchworth was to be thus admitted to membership in the firm, and permitted to share the profits, was that he should contribute to the common stock $1,000 in cash, and, in addition thereto, "the entire inventory on hand, of the effects and property belonging to him, lately owned and used by M. Alden, deceased, and said Letchworth, supposed to be about $8,000." To carry their purpose into effect they signed and filed, as required by the statute, a "certificate of limited partnership" (so entitled), in which, among other proper particulars, it was certified that "the said William G. Merrill, David Wilder and Villars Merrill, Jr., shall be the general partners, and the said George Letchworth shall be a special partner, and has contributed to the common stock $1,000 in cash and about $8,000 of effects and property, the exact amount of which is yet to be ascertained." To this certificate was annexed the affidavit of William G. Merrill that Letchworth "has actually contributed the sum of $1,000 in cash to the common stock of the said firm, and has paid in the same in good faith."

$502. New York statute as to limited partnerships.

The statute under which the parties attempted to establish a limited partnership (1 R. S. of N. Y., 764, § 2) provides that such partnerships may consist of general partners, responsible as general partners now are by law, and "of one or more persons who shall contribute in actual cash payments, a specific sum, as capital, to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership, beyond the fund so contributed by him or them to the capital." It then requires that the certificate to be filed shall, among other things, state "the amount of capital which each special partner shall have contributed to the common stock," and that there shall be filed with the certificate an affidavit "stating that the sums specified in the certificate to have been contributed by each of the special partners to the common stock have been actually and in good faith paid in cash.”

§ 503. Contribution of goods in the formation of a limited partnership, when the statute requires cash, will make the partners general partners, although the certificate states the facts.

It is quite certain that the copartnership which these parties attempted to establish was not such as this statute provides for. They doubtless acted with most entire fairness and integrity. They no doubt supposed that what they did sufficiently satisfied the reason and intent of the statute, so long as, in their published notice, they informed the world that the capital contributed by Letchworth to the common stock was not actually paid in cash, but consisted in part of property, the amount of which was not yet ascertained. But this was not in compliance with the statute, and neither they nor the court are to entertain the inquiry, whether a statute authorizing just such a partnership as they entered into, and securing to Letchworth immunity for the debts of the firm, would not be a better statute than the legislature have seen fit to enact. In general, all who share the profits of the business of a copartnership are liable to its creditors for all of its debts. The statute permits the formation of a copartnership in which, as to one or more of the members, there shall be an exemption from liability beyond the fund "contributed by him or them to the capital." The express condition of that immunity is that