of that--but here and there, as this or that proposition confronts them, this and that section will be modified by rule until, in a few years, little by little, in an orderly, systematic way, the Supreme Court, from their own experience and the experience of the Bar, will work out an elastic system of efficient rules.

If we go before the Legislature with this proposition giving to the Supreme Court the power to fix the rules-not the substantive law, not the right to take an appeal -but the power to regulate the methods of practice, then the responsibility for future. conditions in the administration of justice is fixed and it cannot be avoided. If that is done, then the Supreme Court can not say that the fault lies somewhere else, because it will lie within their power to make and fix rules that will expedite the transaction of business as well as bring about substantial results to the litigants; and I hope the substitute will prevail.

(Cries of "Question!")

THE CHAIRMAN: Gentlemen of the Association, the question arises in this way: The committee has reported the civil procedure sections. A motion has been made to adopt them, and it has been seconded. Thereupon a substitute is offered by Mr. Lamar: That the Association recommend to the Legislature that it pass an act authorizing the Supreme Court to formulate and create rules of practice. The adoption of the substitute eliminates any discussion of the report of the committee. If the substitute is lost the question recurs as to the adoption of the report of the committee.

The first question, therefore, is upon the substitute offered by Mr. Lamar.

(Thereupon an aye and no vote was taken.)

THE CHAIRMAN: The chair is in doubt. I will ask all the gentlemen in favor of adopting the substitute to get on this side of the room. (Indicating the south side.)

(Thereupon, at the request of the Chairman, the reporter counted the members voting for the substitute, and reported thirty-one.)

THE CHAIRMAN: Now, gentlemen, all of those opposed to the substitute offered by Lamar will please remain on this side (indicating the north side of the room), and arise.

(Thereupon at the request of the Chairman, the reporter counted the members

voting against the substitute, and reported thirty.)

THE CHAIRMAN: The vote is thirty-one for the substitute and thirty against; the substitute is adopted.

Thus ended most dramatically a memorable debate on one of the live subject now agitating the profession.

In this particular case, the Missouri Bar Association acquiesced heartily in the results of the very close vote taken and a committee of which Mr. Lamar is chairman has just presented to the Missouri Legislature, now in session, a short practice Act giving to the Supreme Court the power to make and amend rules of pleading, practice and procedure excepting such matters as to which the legislature has prescribed a definite rule.

ALEXANDER H. ROBBINS.

ST. LOUIS, Mo.

PARTNERSHIP-REAL ESTATE.

KREIS et al. v. CARTLEDGE.

Supreme Court of Pennsylvania, July 17, 1918.

104 Atl. 855.

While partnership realty is considered personalty for partnership purposes, it is realty so far as the heirs and legal representatives of the partners are concerned.

FRAZER, J. Thomas Cartledge died in 1898, leaving a will in which he gave to his son, Alfred B. Cartledge, his one-half interest in a partnership engaged in business under the name of Pennock Bros. The remainder of his real and personal estate he distributed, onethird to his wife for life, with remainder to his daughter, Elizabeth Kreis, and son, Alfred B. Cartledge, in equal parts; the other two-thirds to the above-named daughter and son, appointing the latter executors with power "to sell any or all of my real estate at public or private sale upon such terms as they shall deem most advantageous." Among the property belonging to testator's estate was his one-half interest in the real estate, No. 1514 Chestnut street, Philadelphia, occupied by the firm of Pennock Bros.

Following the death of testator, the widow and executors joined with the survivor of the old firm in executing a lease of these premises from June 8 to August 1, 1908, to Alfred B. Cartledge and J. L. Pennock, new partners in the firm of Pennock Bros., at the annual rental of $3,000, and also the payment of interest on a mortgage on the demised premises, together with taxes and water rent. The lease contained a provision that in absence of a notice of termination at the end of the term it should continue in force from year to year until ended by 30 days' notice, by either party, previous to the expiration of a current term. The active work incident to settlement of the estate was left to defendant, Alfred B. Cartledge, and no formal account was filed by the executors, nor was the estate divided between the parties; it being treated as a whole by mutual consent and the income apportioned.

Defendant attended to the business affairs of the family and collected rents from the various properties, including that leased to Pennock Bros. No claim is made that his accounts were not properly kept or the proceeds fully accounted for. The lease to the partnership continued to run for a period of 18 years without change of terms. In the meantime the property had greatly enhanced in value, and plaintiffs now contend the rental paid since 1901 was totally inadequate and seek to procure payment, from defendant for one-half the difference between the rental value received and what they contend would be a fair rental of the property based on the increased market value; their theory being that defendant occupied toward them a relationship of trust, which imposed on him the duty to suggest an increase in rent by the firm of which he was a member, and, in failing to do so, profits by his wrong to an extent represented by his one-half interest in the partnership. Plaintiffs contend further that defendant, having acted in the capacity of executor, the burden was on him to show he exercised the degree of care and business judgment in conducting the affairs of the estate a prudent business man would exercise in the management of his individual property. The court below excluded evidence to show increase of rental value and dismissed the bill, from which action this appeal was taken.

(1, 2) That the lease when made was reasonable and called for a fair rental based on value at that time is undisputed; also that, while plaintiffs left the management of their affairs to defendant, they received notice of an increase in the assessment of the property

for taxable purposes, were regularly consulted with regard to the matters in which they were jointly interested, accounts submitted to them and settlement made each year, and no request was made by them at any time for an increased rental. Although the lease was signed by the son and daughter as executors of their father's estate, they had no control over the realty as such. While real estate belonging to a partnership is considered personalty for partnership purposes, it is realty so far as the heirs and legal representatives of the partners are concerned. Haeberly's Appeal, 191 Pa. 239, 43 Atl. 207. Furthermore, it does not appear from the record that the real estate in question, though owned by the former partners jointly, was held by them for partnership purposes and in absence of such evidence we must presume it was not partnership property. Shafer's Appeal, 106 Pa. 49.

(3-5) Aside from this question the old firm was dissolved, the business given over to the sons of the former partners, and the realty retained; so that, even if it were formerly partnership property, it ceased to be such on the dissolution of the old firm, consequently, for the present purposes, it must be considered realty. In absence of necessity,, such as sale for payment of debts, and on default of express provision in the will, an executor or administrator as such is without authority or control over the realty belonging to the estate. Such property descends directly to the heirs, or to the persons designated in the will of testator. Although an executor or administrator may undertake to collect rents received from real estate, he does so, not in his official capacity, but merely as agent for the heirs. Penna. Co. for Ins., etc., Appeal, 168 Pa. 431, 32 Atl. 25, 47 Am. St. Rep. 893; Herron v. Stevenson, 259 Pa. 354, 102 Atl. 1049.

(6) In this case the will contained a provision authorizing the executors to sell real property belonging to the estate; there is, however, no absolute direction to sell sufficient to amount to a conversion of the realty, and no sale has been made, nor did necessity for sale arise. The estate was solvent and the personal property sufficient to satisfy all liabilities. Neither did the will contain a trust, or other provision, whereby it might be inferred the power of sale was intended to continue indefinitely, and we find nothing in the case imposing upon defendant the duties or obligations of an executor with reference to the property in question. Under such circumstances, the power of sale must be limited to the ordinary

purposes incident to the settlement of the estate, and will not be construed as extending the power of the executors over the real estate for an indefinite period. Penna Co. for Ins., etc., Appeal, supra; Eberly v. Koller, 209 Pa. 298, 58 Atl. 558.

(7-9) Defendant in continuing to act for the others in the care and management of the common property for a period of 18 years was acting merely as agent. As such he was bound to act in good faith and with loyalty to his principal, and could not be permitted to deal with the subject-matter of his agency, so as to make a profit out of it without disclosing all the circumstances to his principal. Everhart v. Searle, 71 Pa. 256; Persch v. Quiggle, 57 Pa. 247; Wilkinson v. McCullough, 196 Pa. 205, 46 Atl. 375, 79 Am. St. Rep. 702; 2 C. J. 694, § 354. The court below found there was no evidence of concealment or fraud on his part. Plaintiffs were aware defendant's interest as a member of the lessee firm was antagonistic to theirs as landlord, had ample opportunity during the 18 years to discover for themselves whether or not a fair income was being realized from the property, in view of the increase in valuation subsequent to the date of the lease, and, if not, terminate it at the end of an annual period. No higher duty was imposed upon defendant as tenant in common since, in that capacity, he did not sustain the relation of agent to the others, except so far as was expressly or impliedly agreed between them. Caveny v. Curtis, 257 Pa. 575, 101 Atl. 853.

The judgment is affirmed.
STEWART, J., dissents.

NOTE. Title to Real Estate Conveyed to Partnership.-The instant case enforces what is called the Pennsylvania Doctrine, where it has been held that, when real estate is purchased by a partnership and title taken in the partners individually, the common law doctrine is that they take the property as tenants in common, so far as purchasers and creditors are concerned and parol evidence to put upon it another quality is inadmissible. Stoner v. Stoner, 180 Pa. 425, 36 Atl. 921, 57 Am. St. R. 654; Cundey v. Hall, 208 Pa. 335, 57 Atl. 761, 101 Am. St. R. 938.

But where the interests of heirs are involved, this may be rebutted by showing that the property was bought by partnership funds, treated as partnership property and became such. Hayes v. Treat, 178 Pa. 310, 35 Atl. 987.

Other states hold that where property is purchased with partnership funds and title taken in the partnership name, it is partnership property insofar as title in equity is concerned. Carpenter v. Zarbuck, 74 Ark. 474, 86 S. W. 299; McRae v. Stillwell, 111 Ga. 65, 36 S. E. 604, 55 L. R. A.

513; Taylor v. Donley, 83 Kan. 646, 112 Pac. 595, 21 A. & E. Ann. Cas. 1241; La Fayette Land Co. v. Caswell, 59 Fla. 544, 52 So. 140, 138 Am. St. R. 166; Close v. O'Brien & Co., 135 Iowa 305, 112 N. W. 800.

It has been said that the conveyance of land to a partnership for a consideration vests title in the members as tenants in common for the use and benefit of the partnership. Adams v. Church, 42 Ore. 270, 70 Pac. 1037, 59 L. R. A. 782, 95 Am. St. R. 740.

And where the deed is to a partnership and thus embraces the surnames of some but not all of the partners, those whose surnames are indicated hold for the benefit of the partnership. A. J. Dwyer Pine Land Co. v. Whiteman, 92 Minn. 55, 99 N. W. 362; Dunlap v. Green, 60 Fed. 242, 8 C. C. A. 600.

Where the partnership is merely fictitious, it is not recognized in law as a person and it is necessary to correct by bill in equity so that the true names of the grantees may be inserted. Spaulding Mfg. Co. v. Godbold, 92 Ark. 63, 121 S. W. 1063, 29 L. R. A. (N. S.) 282, 135 Am. St. R. 168, 19 A. & E. Ann. Cas. 947; Walker & Miller, 139 N. C. 448, 52 S. E. 125, I L. R. A. (N. S.) 157, 111 Am. St. R. 805. See also Wray v, Wray, 93 L. T. (N. S.) 304, 74 L. J. Ch. (N. S.) 687.

If a member of a partnership, without the knowledge of the other, uses partnership money to purchase real estate and the deed is made to his wife, it will be treated as partnership assets. Am. Nat. Bank v. Thornburrow, 109 Mò. App. 639, 83 S. W. 771; Claflin v. Ambrose, 37 Fla. 78, 19 S. E. 628.

Resulting trust in land in favor of partnership may be shown by parol evidence. Van Buskirk v. Van Buskirk, 148 Ill. 9. 35 N. E. 383: Hodgson v. Fowler, 24 Colo. 278. 50 Pac. 1034; Foster v. Sargent, 72 N. H. 170, 55 Atl. 423.

And where land is purchased for partnership purposes, the partners inter sese are trustees. McPherson v. Swift. 22 S. D. 165, 116 N. W. 76, 133 Am. St. R. 907.

The general doctrine in England is for the conversion of partnership realty into personalty and this has been declared by statute. But in America this is only to the extent that realty is needed for partnership debts. This has been declared in a great number of cases, of which there are cited the following: Galbraith v. Tracy, 153 Ill. 54, 38 N. E. 937, 28 L. R. A. 129, 46 Am. St. R. 867; Darrow v. Calkins, 154 N. Y. 503, 49 N. E. 61, 48 L. R. A. 299, 61 Am. St. R. 637: Woodward Holmes Co. v. Nudd, 58 Minn. 236, 59 N. W. 1010, 27 L. R. A. 340, 49 Am. St. R. 503.

The policy appears to be as greatly as possible to recognize existing business conditions and not to admit of any technical obstructions to resolving matters according to actual facts in transactions by partnerships. C.

CORRESPONDENCE.

HUMOR OF THE LAW.

PREVENTIVE JUSTICE-DECLARING THE RIGHTS OF PARTIES.

A. H. Robbins, Esq.,

Editor Central Law Journal.

Dear Mr. Robbins:

I have long been interested in the subject of preventive justice of which Professor Sunderland's proposition (88 Cent. L. J. 6), is but one phase. I urged this matter as far back as 1906 in a paper read before the American Bar Association and have been urging it steadily ever since. After all it is by no means as novel as you might suppose. In the old common-law writ of quo jure it was possible to try the validity of a claim of an easement as a pure matter of obtaining a judicial declaration that there was or was not the easement claimed without any judgment for damages and without any trespass such as we now require to raise the question. When our real actions became obsolete this went along with them. But with the common law precedent of the writ of quo jure, the equitable precedent of instructions to trustees, the example of the English practice under Order 54a, and the corresponding practice in Canada, there is very little warrant for saying that so obvious and convenient an expedient is alien to the genius of AngloAmerican law.

"The profiteers," said Representative Mudd, of Maryland, "are catching it on all sides. When a profiteer attempts to chide some attacking Congressman or Senator, he catches it as badly as Mrs. Merryweather.

"John,' said Mrs. Merryweather, indignantly, 'why did you tell Harriet Witherspoon that you married me because I was such a good cook?'

"'Well,' said Merryweather, 'I had to have some good excuse, didn't I?'"

A few years ago, one of the circuits of the state of Arkansas was graced by a judge who was long on admitting new attorneys to practice in his court; in fact, it was a standing joke that no applicant could display ignorance enough in his examination to cause him to fail. One of these newly made lawyers had stationery gotten out in keeping with his standing in the profession, and after a short time he received, by mail, an abstract from a party in another state, asking for a written opinion as to the title of the land described in the caption, and requested an early answer, as he had an opportunity to trade for this property, and the deal would rest upon the report of the attorney, who replied as follows:

"I have made a very careful examination of the title to this property as shown by the abstract and have to advise that you exercise some caution in making this deal, for I do not find the title good; the very first sheet of this abstract shows that the land was first transferred by A. Lincoln, and it fails to state he was unmarried; this should have been done, if that was the fact, and if not his wife should have joined in the conveyance; this is required in Arkansas, and I consider this deed or conveyance worthless. This conveyance was made in 1862, a great many years ago, and it is natural to presume that Lincoln is dead, and if he left any children, I presume they are scattered; to correct this error it will be necessary to get a quit claim deed from all the heirs of Mr. Lincoln, or go into a court of chancery and have the title quieted, which is frequently done; if you make the deal I would suggest you hold back at least $30 to cover this expense."

We are not advised as to whether the party made the trade or whether he investigated sufficiently to ascertain whether or not A. Lincoln was dead.

1.

Acknowledgment - Collateral Contract. An officer taking an acknowledgment to a deed is incompetent to impeach his act in a collateral proceeding, but in direct proceeding to set aside deed he is competent to show that he was imposed upon and honestly led to believe that one acknowledging deed was the person named therein.-Mankin v. Davis, W. Va., 97 S. E. 296.

2. Action-Tort and Contract.-It is improper to unite in the same declaration a cause of action sounding in contract with one sounding in tort. Shafer v. Security Trust Co., W. Va., 97 S. E. 290.

3. Attorney and Client-Stipulation.-Attorneys may stipulate that an action shall abide the event of another action, if controlling issues are those involved in such other action.-National Council of Knights and Ladies of Security v. Scheiber, Minn., 169 N. W. 272.

4.

Bailment-Mandatory.-Where contract is one for work and labor. to be performed on plaintiff's property, an action of trover by plaintiff will lie against a third person buying the property from party agreeing to perform the work and labor.-Gilbert v. Copeland, Ga., 97 S. E. 251.

5. Bankruptcy-Implied Contract.-Where the principal wrongdoer has become bankrupt, and plaintiff has proved his claim as upon an implied contract and received dividends, he cannot thereafter maintain action in tort against those having assisted the principal wrongdoer in converting the property.Shonkweiler v. Harrington, Neb., 169 N. W. 258.

6. Insolvency.-An insolvent debtor, who undertakes to raise funds and compound his indebtedness, should keep accurate accounts,

showing what he received and disbursed, and his failure to do so will count heavily against his assertion of honesty and good faith towards his creditors.-In re Bloomberg, U. S. D. C., 253 Fed. 94.

7.- Jurisdiction.-A referee has jurisdiction of a bill by the trustee to avoid a transfer in fraud of creditors.-Graham v. Faith, .U. S. C. C. A., 253 Fed. 32.

8.- -Title in Trustee. In the absence of fraud, a trustee takes the property in the same plight and condition, and subject to the same liens and equities, as when the bankrupt held it. In re Roseboom, U. S. D. C., 253 Fed. 136. 9. Banks and Banking Collection. - Bank holding note for collection is owner's agentBelk v. Capital Fire Ins. Co., Neb., 169 N. W. 262.

14.

Carriers of Goods-Delay.-It is the duty of carriers to transport goods offered for shipment within a reasonable time and in a proper car considering the season.-Bivens Bros. V. Atlantic Coast Line R. Co., N. C., 97 S. E. 215. 15. Milling in Transit.-Milling in transit is not an unusual privilege granted by railroads to their patrons, and it is not unusual or unjust for the Railroad Commission to impose such an obligation upon railroads if the rates are compensatory for the additional burden.-Empire Rice Milling Co. v. Railroad Commission of Louisiana, La., 79 So. 833.

16. Published Rates.-Carrier may recover regular rate for interstate shipment as shown by schedule on file with Interstate Commerce Commission under Interstate Commerce Act, though lower rate was quoted by carrier to shipper at time of shipment.-Southern Ry. Co. v. Latham, N. C., 97 S. E. 234.

17. Charities-Execution of Trust.-It is no objection to execution of trust for erection of place of worship for a local religious society. sole beneficiary, that a building is now provided for such society in the city, and held by other trustees.- Attorney General V. Armstrong, Mass., 120 N. E. 678.

18. Commerce - Intoxicating Liquor. The federal statute known as the "Webb-Kenyon Act" (U. S. Comp. St. 1916, § 8739), relating to