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the other that the original contract was illegal." The case is also criticised in King v. Winants, 71`N. C. 473, 17 Am. Rep. 11, as follows: "Two men enter into a conspiracy to rob on the highway, and they do rob, and while one is holding the traveler the other rifles his pocket of $1,000, and then refuses to divide, and the other files a bill to settle up the partnership, when they go into all the wicked details of the conspiracy and the rencounter and the treachery. Will a court of justice hear them? No case can be found where a court has allowed itself to be so abased. Now, if the robbers had taken the $1,000 and invested it in some legitimate business as partners, and had afterwards sought the aid of the court to settle up that legitimate business, the court would not have gone back to inquire how they first got the money. That would have been a past transaction, not necessary to be mentioned in the settlement of the new business. And this illustrates the case of Brooks v. Martin, supra, so much relied on by plaintiff." See, also, Snell v. Dwight, 120 Mass. 9, 19; Morrison v. Bennett, 20 Mont. 560, 572, 52 Pac. 553, 40 L. R. A. 158; Gould v. Kendall, 15 Neb. 549, 556, 557, 19 N. W. 483; Wiggins v. Bisso, 92 Tex. 219, 225, 47 S. W. 637, 71 Am. St. Rep. 837.

We conclude that in this country, in the case of a partnership in a business confessedly illegal, whatever may be the doctrine where there has been a new contract in relation to, or a new investment of, the profits of such illegal business, and whatever may be the doctrine as to the rights or liabilities of a third person who assumes obligations with respect to such profits, or by law becomes responsible therefor, the decided weight of authority is that a court of equity will not entertain a bill for an accounting.

The judgment of the chancellor is therefore reversed, and the cause remanded, with directions to enter a judgment in accordance with this opinion.

GIL.PART.-10

CHAPTER III.

THE NATURE AND CHARACTERISTICS OF A PART

NERSHIP.

SECTION 1.-VARIOUS CONCEPTIONS OF THE NATURE OF A PARTNERSHIP.

*

Ex parte CORBETT.

In re SHAND..

(Chancery Division of High Court of Justice, 1880. L. R. 14 Ch. Div. 122.) * On the 24th of September, 1864, C. J. Corbett granted to Francis Shand, Charles Shand, Alexander Shand, and R. A. Robinson, who were then carrying on business in partnership as merchants, a lease of six rooms in the house No. 23 Rood Lane, in the city of London, for a term of 1334 years, less 12 days, from the 24th day of June, 1864, at an annual rent of £115. The lease contained a covenant by the lessees, jointly, and severally, to pay the rent and repair the premises. The rooms were occupied for the purpose of the partnership business, and the lease was as between the partners partnership property. Francis Shand died, and the business was thenceforth carried on in partnership by the other three lessees in the same rooms, until on the 12th of August, 1875, they were adjudicated bankrupts. On the 30th of August, 1875, a trustee of their property was appointed, and he, on the 6th of October, 1875, obtained leave from the court to disclaim the lease. He afterwards executed a disclaimer, and possession of the rooms was given up to and accepted by the lessor. The lessor afterwards relet the rooms, but at a lower rent. On the 14th of May, 1879, he tendered a proof against the joint estate of the bankrupts, and also against their separate estates, for £396 2s. 6d. This sum was made up of £346 2s. 6d., the difference between the amount of the rent which would, if there had been no disclaimer, have been payable under the lease from the 29th of September, 1875, to the expiration of the term, and the amount of the rent which had been actually received under the reletting during the same period, and £50 for dilapidations to the rooms. The Registrar ordered the proof to be admitted against the joint estate only. The lessor appealed.

was.

* *

JAMES, L. J. We start with this fact that the trustee wants to get rid of the lease, that it is a damnosa hæreditas, and therefore it never could have been for any practical purpose any part of either joint or separate estate. Whose lease was it that he was disclaiming? It was not the lease of the firm, because there was no such thing as a firm known to the law. The firm, as cestuis que trustent, might have been the beneficial owners of the lease; but the legal estate in the lease was vested in three joint tenants, A., B., and C., who happened to be in business together, and unfortunately happened to become bankrupt. The trustee, who is the trustee of the joint estate, as well as of the separate estates, is the trustee of the . property of A., B., and C., and he is authorized, although he may have done some act which under the old law would have bound him to elect to take the lease, to disclaim it. He is authorized to release the bankrupts from all the liability under which they would have been if the lease had not been surrendered. Then he, under that statutory power, surrenders the lease against the will of the lessor, and the lessor is obliged to accept the surrender. For whom is he surrendering it? He is surrendering it for the three joint tenants whose lease it He is surrendering it for them, and for each of them. Each of them was possessed of the lease per my et per tout. That being so, the Legislature has said: "You may on behalf of those persons surrender the lease entirely, and put an end to it as between the lessor and the lessee." The lessor has certain remedies against his lessees. But the Legislature says to him: "Instead of those remedies, you may prove against the estate of the bankrupt." Of course, the word "bankrupt" may mean plural or singular, or plural and singular, according to the context. But section 23 says: "You may have right of proof against an estate for the damage you have sustained. It is not very much we give you; but we do give you a right of proof for the amount of the damage you have sustained." Against whom is he to prove? He is to prove against the bankrupt whose trustee has disclaimed. * There were four persons who covenanted jointly, and there is no joint estate of those four. How the case would have stood if the three bankrupts had entered into the joint covenant it is not necessary for me to say. But here there is a distinct liability of each of the three bankrupts on their covenant, and that liability has been put an end to by the act of the trustee. The act of the trustee has inured to the injury of the lessor. The lessor has a right of proof. Against whom? It seems to me it must be againstthe estates of the persons upon whose behalf and for whose benefit the lessor has been made to endure this injury; that is to say, he is entitled to prove against the separate estate of each of those three persons. That, as it appears to me, would have been the proper order for the Registrar to make, and no proof ought to have been admitted against the joint estate.

Succession of PILCHER.

(Supreme Court of Louisiana, 1887. 39 La. Ann. 362, 1 South. 929.)

Appeal from a judgment allowing the account of the administrator of the estate of one Pilcher. The appellant is a creditor of the firm of Embery & Pilcher, and objects to the allowance of $1,000 to the minor child of the deceased, Pilcher, out of the fund realized from the sale of the assets of Embery & Pilcher. Pilcher was insolvent, and had no property except his interest in the partnership.

WATKINS, J. In support of his theory that partnership funds cannot be applied to the claim of the necessitous minor and the commissions of the administrator, because they are by law consecrated to the payment of the debts of the partnership, which is insolvent, he cites. Succession of Stauffer, 21 La. Ann. 520. In that case the claim for $1,000 set up in favor of the necessitous widow and minor, was denied under very like circumstances to those presented here. Its allowance was opposed by the creditors of the partnership of Stauffer & Co., of which the deceased had been a member; and the opposition was sustained on the ground that the property of the partnership does not belong to either of the partners separately, but remains common stock, and a pledge for the payment of the debts of the firm in preference to any claims against the individual partners. In Smith v. McMicken, 3 La. Ann. 322, the court said: "The partnership, once formed and put into action, becomes, in contemplation of law, a moral being, distinct from the persons who compose it. It is a civil person, which has its peculiar rights and attributes. *Hence, therefore, the partners are not the owners of the partnership property. The ideal being, thus recognized by a fiction of law, is the owner. It has the right to control and administer the property to enable it to fulfill its legal duties and obligations; and the respective parties, who associated themselves for the purpose of participating in the profits which may accrue, are not owners of the property itself, but of the residuum which may be left from the entire partnership property, after the obligations of the partnership are discharged." City of New Orleans v. Gauthreaux, 32 La. Ann. 1128.

* *

Judgment amended, disallowing the $1,000.

HUBBARDSTON LUMBER COMPANY v. COVERT.

(Supreme Court of Michigan, 1877. 35 Mich. 255.)

Wilson Homer, of North Plains, Mich., and Henry P. Marcy, who resided in Massachusetts, were partners in the lumber business under the name of Homer & Marcy. The partnership executed a mortgage to Mrs. Homer on a quantity of logs. A portion of the logs were in North Plains, where Homer, the resident partner of the firm, lived,

and the remainder were at Crystal, Mich. The Hubbardston Lumber Company bought the logs from Mrs. Homer, the mortgagee, with the consent of the resident partner, Homer, and manufactured them into lumber. Covert, the defendant, as deputy sheriff, seized the lumber to satisfy an execution issued on a judgment in favor of one Thompson against Homer & Marcy on a partnership indebtedness. The Hubbardston Lumber Company brought replevin to recover the lumber, relying upon the title derived from Mrs. Homer. It was contended that the mortgage was invalid, as not complying with the statute, which required a chattel mortgage to be filed where the owner of the property resided, or, if he was a nonresident, then where the property was located; that as Marcy was not a resident of Michigan, and the mortgage was filed only in North Plains, where Homer, the resident partner of the firm, lived, and not in Crystal, where the property of the partnership was, it was absolutely void against attaching creditors. The trial court directed a verdict for the defendant. The plaintiff alleged error.

GRAVES, J. For many purposes a firm, though managed from necessity by its members, is a distinct concern and possess a sort of individuality. The assets are held in a sort of community, but the partners do not hold as common tenants or joint tenants. The property is distinctly separated from that belonging to the individual members, and it constitutes an identical and entire interest. The law makes distinctions between debtors and creditors of the firm on the one hand, and debtors and creditors of the persons composing the firm on the other, and assets are gathered, catalogued, and appropriated according to these distinctions. A member may become debtor or creditor of the firm, and each member is agent for it, and within limits stands for it. For some purposes, then, the law contemplates the firm as having a sort of ideal existence, and with the faculty of being in the relation of principal to agent in a certain representative sense. The agency consequent upon the relation extends no further than to firm transactions. As partner there is no power to bind individual interests. Either partner may contract for the firm in the firm name, and the act is the act of the firm, and not that of the individual who actually transacts. It is just the same as though the firm were a natural person and acted personally. Taxes may be imposed on a firm in the firm name. Section 978, Comp. Laws 1871. And suits are allowed to be brought in justices' courts for and against copartnerships in the firm name, where the members' names are unknown. Section 5307, Comp. Laws 1871. These and other characteristics of individuality are sufficient to show that the firm has in many aspects a recognized legal identity.

That it may have a local abiding place is as certain as that a corporation can. Carron Iron Co. v. Maclaren, 5 H. of Lords Cases, 416. And, where it has, I see no reason why it may not, as well as a corporation, be said to reside there, within the meaning of the statute

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