House v. Alexander, 105 Ind. 109, 4 N. E. 891, 55 Am. Rep. 189, and cases there cited.

The cases thus reviewed lend aid to the proposition that, in the case before us, appellant cannot, through the instrumentality of the court exercising equitable powers, and the receiver appointed by it, have the assets of the firm appropriated in the way of refunding to him what he invested in the business, and thus leave the firm creditors wholly or partially unpaid. And, so far as they sustain that proposition, we approve of them, although disapproving, in the main, the reasoning upon which they rest. Had appellant purchased the goods on his own account, and paid for them, he might have disaffirmed the contract, and recovered the amount paid, without first returning, or offering to return, them to the person from whom he purchased them. It does not follow from that, however, that, after having thus disaffirmed the contract, he could, nevertheless, hold the goods as against the person from whom the purchase was made. He would not be allowed to retain the goods after having thus recovered what he paid for them. When an infant thus repudiates a contract, he repudiates. it for all purposes. He cannot repudiate it so as to escape payment for an article purchased, and still hold the article as against the person from whom the purchase was made. As was said in the case in Paige, supra, when a contract is thus repudiated, the vendor may have his action to recover the goods from the infant, if they remain in his hands unchanged. And so, if appellant had purchased the goods on his own account, he might have disaffirmed the contract, and refused to pay for them, without returning or offering to return them to the vendor. But, after having thus disaffirmed the contract, and refused to pay, he could not hold the goods as against the vendor. See Kitchen v. Lee, supra; Rice v. Boyer, 108 Ind. 472, 9 N. E. 420, 58 Am. Rep. 53. What he could not do otherwise, he certainly cannot accomplish through a court of equity. Having gone into court, and asked that the assets of the firm should be taken charge of by it through a receiver, he must be held to have consented that the court shall deal with them and the rights of all concerned as the law and equity may require. Having thus invoked the interposition of the court, he must be held to have consented that it shall close out the business, so as to settle the ultimate rights of the parties. If it be said that his disaffirmance of the contract is such as would otherwise have relieved him from the obligation to pay for the goods, then the court having charge of the goods has the right to see to it that they, or the money that may be realized from the sale of them, shall be returned to vendor.

In our judgment, however, appellant's course has been such as to ratify the purchase of the goods, and all that has been done by the, firm. He states in his bill that he "renounces the partnership arrangement, and asks to avoid and annul all of his obligations in that behalf"; but, at the same time, he treats the goods and assets on hand as part

nership assets, and asks the court to take charge of and deal with them as such. His disaffirmance puts an end to the contract by which he became a member of the firm; but by asking the court to take charge of the goods as assets of the firm, as to them, he not only does not disaffirm, but ratifies all that was done in the purchase of them. As to them, he cannot disaffirm, and, at the same time, treat them as partnership assets. Having treated them as assets of the firm by asking the court to deal with them as such, the court will deal with them as partnership assets, as in any other case, and apply them first to the payment of the debts of the firm. 2 Lindl. Partn. *1010. This is not an action against the other party to recover a personal judgment against him for the amount paid into the business by appellant. What might be the rights of the parties in such an action, we do not decide. It is sufficient here that, in our judgment, the conclusions of law by the court below upon the facts found were correct, and the proper decree was entered.

Judgment affirmed.

MERCHANTS' NATIONAL BANK v. WEHRMANN et al.

(Supreme Court of Ohio, 1903. 69 Ohio St. 160, 68 N. E. 1004.)

This was an action by William F. Wehrmann against the Merchants' National Bank and others to establish a partnership liability on the part of the bank with a certain Elsmere Syndicate, for debts incurred in the operations of such syndicate. The court below found the bank liable. A petition in error was filed by the bank to reverse this judgment.

BURKET, C. J. The Merchants' National Bank of Cincinnati is a corporation organized under the national banking laws of the United States, and the Elsmere Syndicate was a partnership consisting of forty shares, each partner holding one or more shares, and each share evidenced by a certificate, as shown in the foregoing statement of facts, and which certificates were transferable on the books of the syndicate; and such transfers were intended to make the transferee a partner in the syndicate, instead of the transferror; without a dissolution of the partnership. The circuit court finds that the bank became owner by transfer of nine shares of this syndicate or partnership, which shares were taken by the bank to secure the payment of a large indebtedness owing to said bank for loans by it made to one of its customers in the usual course of business. The bank, in accepting said transfer, evidently regarded it as a collateral; but it so treated the shares, and so transacted the business as to said shares, that the circuit court found that the bank became the owner of the shares, and there was evidence warranting such finding. The case must therefore be determined upon the theory that the bank held the shares as owner, and not merely as collateral-the purpose of such ownership,

however, being to secure the ultimate payment of said indebtedness out of the proceeds of said shares; and, to that end, it was necessary that the property of said syndicate should be put into such condition as to yield the most money, and this is what the trustees of the syndicate attempted to do; and, in so doing, debts were incurred, which the syndicate was unable to pay, and, after all its property had been consumed in paying said debts, a large debt still remained.

* * **

But conceding that a national bank may take shares in another bank as collateral security for a new loan, or to secure the payment of an old one, and that it may become the owner of such shares in attempting to realize on such collateral, and that it may thereafter be liable to creditors on its individual liability as such shareholder, yet that falls far short of holding a national bank liable as a partner in a partnership, and liable as such partner for not only its own share of the debts of the firm, but also the debts of its copartners. The individual lilability of a holder of shares in a national bank is in its nature several, and not joint (United States v. Knox, 102 U. S. 422, 26 L. Ed. 216), while the liability of a partner for partnership debts. is, as to creditors, usually held to be joint; but some cases hold it to be joint and several.

The individual liability is an inseparable incident to national bank shares, for which the lawful holder is liable; but this liability is his own debt, and attaches to a specific several article of his propertythe share of stock-and is therefore limited, and cannot exceed the face value of the stock. But in the case of shares in a partnership, the liability of a partner is not for a specific amount adhering to his share as an incident, and limited to a certain amount; but the only limitation is the whole indebtedness of the firm, and which in many cases would far exceed the entire resources of the bank, and drive it into insolvency. The purpose of allowing a national bank to take collateral security is to enhance its solvency, and not to permit it to enter into wild. speculations as a partner under the pretext of enforcing its rights as a pledgee or owner. "It is settled that the United States statutes relative to national banks constitute the measure of the authority of such corporations, and that they cannot rightfully exercise any powers except those expressly granted, or which are incidental to carrying on the business for which they are established. Logan County Bank v. Townsend, 139 U. S. 67, 73, 11 Sup. Ct. 496, 498, 35 L. Ed. 107." California Bank v. Kennedy, 167 U. S. 362, 366, 17 Sup. Ct. 831, 833, 42 L. Ed. 198.

To become a member of a partnership in any manner or for any purpose is not incidental to carrying on the business for which national banks are established, and is certainly not expressly granted. The power, therefore, does not exist. The liabilities for which a national bank must respond are such only as are created or incurred by its officers, acting in the capacity of officers of the bank alone, and not in connection with other trustees or officers of other companies. Were

it otherwise, the other trustees or officers might outnumber the officers of the bank, and impose a burden on the bank which would ruin it; and thus the bank would be controlled, not by its officers, but by outsiders. The officers of a bank cannot delegate their powers to others. It is therefore clear that a national bank cannot be a partner in a copartnership, and cannot incur a partnership liability. The same has been held as to coporations in this state. Geurinck v. Alcott, 66 Ohio St. 94, 63 N. E. 714. The first subdivision of the syllabus was omitted by mistake of printer, but is found in the headnote, and also in the index, and is as follows: "A corporation cannot be a member of a partnership." *

Judgment reversed.

SECTION 3.-FORMALITIES.

MARSH v. DAVIS et al.

(Supreme Court of Kansas, 1885. 33 Kan. 326, 6 Pac. 612.)

HORTON, C. J. This was an action for the dissolution of a partnership, and for an accounting. The evidence conduced to show: That prior to March 12, 1875, there existed at Iola, in this state, a firm, composed of W. E. Davis, George S. Davis, and Elias Bruner, engaged in the milling business under the name of W. E. Davis & Co. That the firm were then the owners of a grist and saw mill, and certain personal property, and tracts of land, all used for partnership purposes, and in connection with the mill. That on March 12, 1875, it was verbally agreed between the members of the firm that the plaintiff should be taken into the partnership as a member thereof, on the following terms: All the property of the partnership was valued at $12,000; each partner was to have an equal share therein; the plaintiff was to pay $3,000, but it was understood "that he was to have his share in the partnership without interest on this sum until such a time as the proceeds of the mill or business made it." That it was further agreed among all the members that the partnership should be consummated by an entry in the journal and ledger books, setting forth that the parties had associated themselves together as partners, and the amounts invested by each member were to be shown by his credits on the ledger. That the entries upon the journal and ledger were made in accordance with this agreement. That on March 13, 1875, the plaintiff was permitted to go in possession jointly with the other parties. That all the parties acted on the agreement until about the middle of November, 1882. That the partnership after March 13, 1875, continued to do business under the firm name of W. E. Davis

& Co. That it was the particular duty of plaintiff to keep the books of the firm, and look after such other business as he could. That at the formation of the new partnership on March 12, 1875, the gristmill was somewhat dilapidated, and was not making good flour. That the sawmill was very old, and pretty well worn out. That W. E. Davis and G. S. Davis were brothers. That the wife of plaintiff was the sister of W. E. and G. S. Davis, and also the sister of the wife of Elias Bruner. That the plaintiff kept the books, and also collected for the firm, borrowed money, brought suits against different parties, and did almost everything that was to be done to further the interests of the firm. That the defendants allowed him to hold himself but to the public as a partner, to sign the firm name to negotiable paper, subscriptions to public enterprises, and officials' bonds, to bring suits, and defend suits, as a partner. That land was condemned for a milldam. That plaintiff paid the money therefor from the proceeds of the business. That a dam was constructed across the Neosho river, where the mill is now located. That the old mill was taken down and moved to the new location in the spring of 1880. That a new mill was made out of it; that is, the old mill was rebuilt, and considerable new machinery put in it. That the expense of doing this was over $4,000. That about $1,500 was borrowed. That the balance of the money was paid from the proceeds of the mill. That the defendants. accepted $110 they owed him prior to March 12, 1875, as part payment of the $3,000, and used it in the partnership business. That the plaintiff also paid between $50 and $60 upon the purchase price of his interest in the firm after he became a member thereof. That during the partnership he drew out $1,900. That about the middle of November, 1882, plaintiff was excluded by the defendants, without any good reason or excuse, from further participation in the partnership, and was forbidden by the other partners from exercising any rights or control over the partnership business or property. That at the time of such exclusion the property of the firm was worth about $30,000, having increased from $12,000 in 1875 to $30,000 in 1882.

After the introduction of all the evidence, on the part of the plaintiff, that the court would admit, the defendants interposed, and filed a demurrer thereto, upon the ground that no cause of action was proved. The court sustained the demurrer, and plaintiff excepted. This is the important ruling complained of. To sustain this ruling, the defendants contend that the contract of March 12, 1875, being for an interest in real estate, is, as to such real estate, void, under the statute of frauds; and that, being void as to the real estate, it is also void as to the personal property, and the right to become a partner, which, as defendants allege, were parts of an entire and indivisible contract. The proposition is conceded by the defendants, that where real estate is purchased with partnership funds, for partnership purposes, after the partnership has been formed, such real estate is