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The cases of White v. Harlow, 5 Gray, 463; Harris v. Harris, 39 N. H. 45; Ordiorne v. Woodman, Id. 541; Dowling v. Clarke, 13 R. I. 134; and Arnold v. Arnold, 90 N. Y. 580,—are to the same effect.

The reasons why one partner is not entitled to contribution in regard to some item in the partnership account favorable to himself, before the affairs of the partnership are settled, are numerous and cogent. In addition to other reasons that might be given, it is obvious that, if one partner may do this in regard to an item favorable to himself, so may another partner in regard to an item favorable to himself, and there might be an interminable litigation over the account, and at last all the partners might be compelled to refund the money thus obtained in the final settlement of the partnership accounts; for until then, in the language of our court, it cannot be known whether such partners do not owe the company, notwithstanding the money paid by them on partnership account. So, in this case, it is manifest that until the accounts of the Foster Farm Oil Company are settled, it cannot be known whether the defendant does not owe the company, notwithstanding the money paid by him to settle the Bronson judgment.

Again, this suit was brought to settle the affairs of a partnership between the plaintiff and the defendant alone, and was not brought to settle the accounts of the Foster Farm Oil Company. That company included other partners besides the parties to this suit. It is clear, therefore, that no item of that account can be considered in this case, even in connection with the agreement of the parties, made on the trial, that all accounts between them, whether they pertained to the partnership then under consideration or otherwise, should be considered and settled by the committee. Indeed, both parties to the agreement then claimed that the affairs of the Foster Farm Oil Company could not be gone into in this suit; and surely the defendant cannot now be permitted to claim the contrary, even if there was ground otherwise for the claim.

The defendant claims that the payment by him to settle the Bronson ‘ judgment was not a partnership transaction, and consequently it is not properly an item in the partnership accounts of the Foster Farm Oil Company, but is separate and distinct therefrom. We think there is no foundation for this claim. The defendant, as managing agent of the company, sold the Bronson oil, and divided the proceeds of the sale among the members of the company. The Bronson suit and judgment were against the company on the ground that the company was liable. The defendant, acting for the company, and with the knowledge and consent of all its members, paid and satisfied the Bronson judgment, and charged the amount in his individual account against the company. The transactions were equivalent to buying and selling the Bronson oil for the company, and charging them with the sum paid. We think the transactions were company transactions, and that they must be regarded as belonging to the company’s accounts.

In relation to the Abbot and Harley item, so called, the defendant insists that, inasmuch as the committee allowed that item in the defendant’s account, and there having been no remonstrances against the com

mittce’s report, its allowance is not the subject of consideration here. But the report of the committee states all the facts in regard to that item, and the superior court having reserved the case, and all questions of law arising thereon, for the advice of this court, we think that item is a proper subject of consideration here. All the foregoing considerations apply with the same force to that item as to the Bronson judgment, and it needs no further comment.

We advise the superior court to disallow the sum of money paid on the Bronson judgment by the defendant, and the Abbot and Harley claim.

PARDEE, Looms, and GRANGER, JJ., concurred.

CARPENTER, J ., (dissenting) It seems to me that the money paid by E. 0. Bishop to satisfy Bronson’s judgment ought not to be treated as money paid on account of the partnership of the Foster Farm Oil Company. E. A. Skinner, David Harris, E. C. Bishop, and R. L. Bishop were the defendants in that suit. It is true, they were described as partners; but it is conceded that several other persons were also interested as partners in that concern, who, being out of the jurisdiction of the court, were not made defendants, and were not served with process. The judgment, therefore, was in effect only a joint judgment against the four defendants. They were the only persons liable on that judgment; and, if one of them had been compelled to pay the whole, it is clear that he could have maintained a suit for contribution against the other three. When that judgment was satisfied, Bronson had no claim against the partners not made defendants. Payment of that judgment resulted in taking Bronson’s claim out of the list of partnership liabilities. The parties paying it doubtless have a remedy against the other partners, but that ought not to deprive them of a remedy as against each other.

Moreover, of that judgment Skinner paid nothing. Harris paid $2,500. The balance Bronson could have collected of E. C. and R. L. Bishop, or either one of them. E. C. Bishop, acting, not for the Foster Farm Oil Company, but for himself and R. L. Bishop, paid that balance. It seems to me that the payment ought to be regarded as having been made on the joint account of the plaintiff and defendant alone, and that one-half the amount so paid (assuming Skinner is irresponsible) should 'be allowed to the defendant in this action.

STATE (BRANDS, Prosecutor) c. CRAIG and others.1
(Supreme Court of New Jersey. November 5, 1886.)

WAYS—ROAD—AWARD 0F DAMAGEs—RETURN—AMENDMENT—CAVEAT—REVIEW.

A return of the laying out of a public road by surveyors of the highways was

amended by striking out an award of damages, for lands taken, to “the heirs

of A. B.,” and inserting in lieu thereof a specific award to each individual

owner. Held, that such owners had a right to caceal and procure a review of

the necessity and utility of the road by chosen freeholders, after the original

return was received by the county clerk, by taking the steps required by the

statute within the time prescribed, and that such right was not revived or renewed by such an amendment to the return.

On certiorari. Facts appear in opinion.
Mr. Angle, for prosecutor.
L. D. W. Taylor and N. Harris, for defendants.

MAGIE, J. Proceedings to lay out a public road in the county of Warren, a branch of which proceedings is now brought before us, have already been twice before this court. In Oxford v. Brands, 45 N. J. Law, 332, the return of the road by surveyors of the highways was considered, and found to be erroneous in only one particular, viz., in awarding damages, for some land taken, to “the heirs of Thomas Craig, deceased,” instead of to the owners thereof by name. In accordance with a wellsettled practice under the present road acts, the error was held not to invalidate the whole proceedings, but the record was remitted to the court below to enable it to make proper amendments. In Craig v. Brands, 46 N. J. Law, 522, the amended return was brought here, and the action of the court below, which resulted in the amendment, was set aside, and the record again remitted to be proceeded on according to law.

The present writ brings before us a caveat against recording the return of the road, filed September 15, 1885; an application to the common pleas for the appointment of chosen freeholders to review the road, filed the same day; an order of that court appointing freeholders, made November 24, 1885; and the return of the freeholders, dated December 18, 1885. The original return was filed August 18, 1880. It was amended after the proceedings were last remitted from this court, and the return as so amended was filed September 4, 1885.

By section 7 of the road act (Revision, 995) the time for filing a caveat is limited to the 15 days next succeeding the time when the clerk receives the return. The caveat before us was filed within 15 days from the time the amended return appears to have been filed, but more than five years after the original return was received by the clerk. If the road act permits the interposition of the caveat under the circumstances of this case, the proceedings before us are unassailable; but, if not, they are without jurisdiction and void.

When the matter was last before the court, the question now presented was anticipated; and it was declared that, by the true construction of the road act, an amended return was to be considered as a new return only with respect to new matterinserted as an amendment, and not as respects matter remaining unamended. Upon that construction the court held that relief by caveat, or appeal after the amendment of a return, could only be accorded to such persons as were, in regard to such relief, affected by the new matter inserted in the return by the amendment, and that an amendment would not operate to revive the right of caveat or appeal by persons who had once had that right. It has not been contended, on this argument, that these conclusions were erroneous. Upon reconsideration of them, I do not perceive that, with respect to their bearing on the case before us, their correctness can be questioned. But it is now contended that, upon the construction thus given to the road act, the proceedings before us must be sustained. The insistment is that the caveators, who were in fact the heirs of Thomas Craig, became parties to the proceeding only by the amendment of the return awarding damages to them individually for their land taken for the road. They urge ithat until such an award was made there was no condemnation of their ands.

1Syllabus prepared by judge.

Admitting the force of this contention, the conclusion sought to be drawn by defendants does not follow. The proceeding in road cases, initiated by a caveat, is designed to obtain a review of the surveyor’s de. termination as to the necessity of the road. The freeholders, who are the reviewing officers, are to adjudge, not the regularity of the proceedings nor the propriety or justice of the awards for damages, but only the necessity and usefulness of the road. If they adjudge it to be necessary and useful, their adjudication affirms the proceedings; if they adjudge it to be unnecessary or injurious, their adjudication annuls the proceedings. The power to caveat and apply for this review is given to every person who shall think himself injured or aggrieved. Revision, 996, § 8. It is not restricted to persons to whom awards for damages were properly made. The defendants, therefore, clearly had a perfect right to avail themselves of this proceeding when the original return was filed. The admitted facts show that some of them did avail themselves of the right to review the necessity and usefulness of the road. The amended return introduced no new matter affecting that subject. \Vhatever was new in it was only a correct award of damages to them. With respect to the quantum of such-damages, the defendants may have a right to an appeal. According to the conclusions reached in the previous case, they would have such a right. But, whether that be so or not, I am very clear that an amended return, amended only with respect to the assessment of damages, will not revive the right to caveat and renew the utility of the road, which right every person aggrieved had for the statutory period following the reception by the clerk of the original return.

The proceedings brought up by this certiorari must therefore be set aside, with costs.

STATE (ARNETT and others, Prosecutors) v. MAYOR, E'rc., OF THE CITY OF LAMBERTVILLE.

(Supreme Court of New Jersey. November 5, 1886.)

1. MUNICIPAL CORPORATIONS—STREETS—GRADING—COMPENSATION. Compensation for lands taken or injuries done in grading streets in Lambertville is to be made by proceedings subsequent to the ordinance of said city. If not made, the remedy of the party aggrieved is, not to set aside the ordinance, but to compel the city to take the requisite steps to make compensation. 2. SAME—PROCEDURE IN OPENING STREET—CHARTER. Unless land has been dedicated to public use as a highway, a city must proceed to treat for and purchase the right to use it, or condemn it in the manner prescribed by the charter.

On certiorari.
Mr. Hayhurst, for prosecutors.
Mr. Skillman, for City of Lambertville.

MAGIE, J. What interest prosecutors have in the proceedings brought up by this writ does not appear. No testimony has been taken, and the court is left in ignorance whether they own land taken for or affected by the public street in question, or only have such interest as any citizen may have therein. Indeed, there is nothing to show that they are citizens. It may be inferred from an admission made in argument that they represent one Cornelius Arnett, who, in a petition appearing in the return, represented himself to be a citizen of Lambertville. But, assuming prosecutors have some right to call for a review of these proceedings, they have been examined.

The ordinance attacked was passed nearly 16 years before this certiorar'i issued. The contention that it must be set aside because no notice was given of the intention to pass it cannot prevail. Such a notice was required by the charter. In the absence of any requirement, notice to persons interested must have been given. If either the charter notice or personal notice to prosecutors (or those whom they represent) was given, or knowledge of this ordinance was acquired by prosecutors (or those whom they represent) at the time of its passage, this certiorari was improvidently issued. The delay would be accounted laches. Whether prosecutors must excuse this laches by proof that there was no such notice or knowledge acquired, or whether, upon such proof, a public ordinance may be attacked after so long a lapse of time, need not be settled. There is no such proof. No evidence having been taken, express proof is wanting. The lack of notice will not be implied because the return is silent on the subject. If the writ had been directed to the city by its corporate name, the return would be presumed to give the whole record called for, including whatever was in the custody of its officers. Woodbrt'dge- v. Allen, 43 N. J. Law, 262; Davis v. Harrison, 46 N. J. Law, 79. It is issued to the mayor and common council. The return is by the common council. The presumption only is that it contains their proceedings. But the publication of such notices was required to be made

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