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ant was in fact dead, a belief justified by the fact that upon the fact of seven years' absence without being she had been absent for more than seven years, and the heard from, and the hardship of requiring a debtor, most diligent inquiries among her friends and acquaint who has recognized an administrator appointed under ances could discover no trace of her. And it is in- | such circumstances, liable to a second payment seems, sisted for the defendants that the administration of peculiarly pointed. Whitly should be held so far valid as to constitute a It must, however, be in principle immaterial what protection to the innocent parties who, in good faith, the proof of death may be as to the effect of the judgpaid to him money due the complainant. A similar | ment. Whether the court find or assume the fact of case has never before arisen in this State so far as we death upon proof of seven years' absence, or upon tesknow. It is a question that has recently attracted timony of witnesses directly to the point, the question some attention. Previous to the decision of the Court must be the same, that is to say, it is the finding or of Appeals of New York, in 1875, in the case of Rodri. assumption of the fact of death by the probate court, gas v. East River Savings Institution, 63 N. Y. 460, it conclusive until revoked by the same court, or reversed seems not to have been doubted that such an adminis on appeal, for we have no statutes authorizing admintration would be absolutely void. Chief Justice Mar istration to be granted upon proof of seven years' shall said such an act, “all will admit, is totally void” absence without being heard from. It is simply a com(Griffith v. Frazier, 8 Cranch, I), and there are numerous mon-law rule of evidence, and it has no more force dicta and several decisions to the same effect. Pinson than any other evidence that may turn out to be unv. Ivey, 1 Yer. 306; Allen v. Dundas, 3 Tenn. 125; | true; administration granted upon such evidence is no Wilson v. Frazier, 2 Humph. 30; Jochumsen v. Suffolk | more lawful than if granted upon false testimony of Bank, 3 Allen, 87; 2 Taylor on Evidence, $1490 and witnesses. It may be the misfortune of the parties in 1523.

interest in either case, tbat for the time being they are The case in 63 N. Y., before referred to, raised the unable to show the real truth. In such a case there is direct question. Administration had been granted real hardship in requiring a debtor to pay the second upon the estate of one who had been absent, and not time, but such is always the effect of holding, as courts heard from for more than seven years, and money col are often compelled to do, that former judgments have lected from his debtor. It turned out that he was not been rendered without jurisdiction, in fact dead, and the question was whether the pay- | The defendants in this case were unable to defeat the ment made by the debtor was a protection against a demand of Whitly, because they were unfortunately sound demand. The judges were divided in opinion unable to prove the real truth - such misfortunes --four to threo - the majority holding the payment a occur. The hardship to the debtor cannot be regarded protection.

greater than to hold the creditor bound by an adminThe decision has been severely criticised by Judge istration of his estate in his life-time. To deprive him Redfield in 15 American Law Register. It is fair, how of his property and rights by a proceeding of this charever, to say, that the opinions present that side of the acter, to which by no sort of construction can he be question with all its force, and show that at least regarded as a party, is violation of first principles. It something may be said in its favor. The argument is said, however, that it is the fault of the supposed may be briefly stated thus: Upon proof of death the decedent in remaining absent for seven years without surrogate was compelled to act and grant administra communicating with friends that gives rise to the pretion-proof of seven years' absence without being sumption of death, and causes the injury, and he heard from was prima facie evidence of death which ought, therefore, to be bound by his own acts. The the surrogate might be unable to rebut, and therefore | seven years'absence may be willful, or it may be the he was compelled to act and grant the letters of admin- result of insanity, imprisonment or other misfortune. istration - armed with these letters the administrator The failure of friends and acquaintances to be informed could demand payment, and the debtor could not re as to the residence of the absent one, or that he still sist, and therefore it being a payment compelled by lives, may be the result of accident or other cause. In law, the debtor ought to be protected, especially as it what cases the conduct of a person in remaining is the act of the supposed decedent in remaining absent, and conniving at the acts of a pretending adabsent without communicating with his friends for ministrator, should be held fraudulent and an estoppel, more than seven years that causes the injury, and cou- | it is unnecessary to inquire, as such is not the present sequently he, rather than the debtor, ought to suffer. case, The decision, however, was to somé extent placed upon Whitly, to whom administration was granted as next the statutes of New York, which were assumed to be of kin, turns out to be in no wise related to complainpeculiar in this respect - that is to say, before admin ant, and she could not have anticipated such a proceedistration can be granted the fact of the person dying ing, or be held to have connived at it by remaining intestate shall be proven to the satisfaction of the sur absent. rogate, who shall examine the person applying touch A debtor in a case like the present could always ing the time, place and manner of the death, and may obtain the indemnity which in this case was obtained examine any other person, and for that purpose com- | by applying to a Court of Chancery, that is, a bond of pel their attendance as witnesses. While it is conceded indemnity against the contingency of the creditor rethat in general the finding by the court of the fact turning alive - an indemnity that perhaps ought to be upon which the jurisdiction depends is not conclusive provided by statute, and there could be no more hardof the jurisdiction, yet it is maintained that as in this ship in requiring the debtor to look to such a bond for instance the court was required to hear evidence and indemnity than in requiring the creditor to do so. The determine the facts, the determination must be con money, when thus paid, should be recovered back clusive until revoked, so far as concerns third persons either by the debtor who had paid it, or by the creditor who had acted upon the faith thereof.

who returns alive; and if the security of the bond It does not seem clear that an administration granted fail, it would be as great a hardship, to say the least of under such a statute would in this respect be different it, to require the creditor to lose it as to throw the loss from administration granted under a statute simply upon the debtor. authorizing the granting of administration upon the Therefore the question of hardship is out of the way, estates of deceased persons, but it is unnecessary in and the fact that the administration was granted upon the present case to pursue this branch of the inquiry. | proof of seven years' absence forms no exception to the The force of the argument in favor of the validity of general rule - and we return to the question whether the administration seems to apply especially to a case administration upon the estate of a living person is of this character, where the assumption of death rests I valid. Has a probate court, under our statute, jurisdiction to grant administration otherwise than upon demnation was granted in two different counties about the estates of deceased persons? Our statutes have the same time. Judge Reese said the letters granted not the supposed peculiarity of the statutes of New | in the county other than the county of the intestate's York; they simply authorize administration upon the residence were void; other similar cases are referred estates of deceased persons, and if the person be not to in the case of Jochumsen v. Savings Bank, 3 Allen, dead, the court would be acting ultra vires to appoint 87. If the judgment of the probate court as to the an administrator. But it is said the probate court has residence of the intestate is not free from a collateral jurisdiction to ascertain the fact of death, and its attack, it can hardly be said that the judgment of the judgment finding that fact is conclusive until revoked court as to the death of the party can stand upon a or reversed. The general principle is, that the juris- higher ground. In fact, so far as our researches have diction being conceded the judgment is conclusive of gone, the case of Rodrigas v. East River Savings Inall matters involved; but if the jurisdiction be dis- stitution stands alone, and even that decision seems to proved, then the judgment is void for all purposes. If have been rendered doubtful upon a second hearing of it be conceded that the jurisdiction rests upon the ex the case. See Melia v. Simmons, 19 Alb. L. J. 198. As istence of a particular fact, then it will not do to say a further argument agaiust the validity of the adminthat the finding of that fact by the court is conclusive istration we need only see to what it would lead. If of its own jurisdiction — for this would be, to use a tho administration was valid until revocation, as common expression, "reasoning in a circle.” The argued in the present case, then it must result that the judgment is conclusive if the court had jurisdiction, decree of the Chancery Court in the bill filed by Whitly and its judgment that it had jurisdiction is conclusive to collect these notes was likewise conclusive, for iu of the jurisdiction. There may be in some cases con that view it was a bill filed by one who was for the fusion as to what constitutes the jurisdictional facts, time being properly authorized to act as administrator but this would seem to be about as clear an illustration to collect assets due the estate, the proper defendants of it as could be found: That a probate court has were made, and the court had jurisdiction of the subassumed that a certain person is dead, and has granted ject-matter, and the decree rendered in the cause must administration upon his estate, when, in fact, he was in that view be held conclusive upon all parties. But not dead. A similar illustration is given by Chief suppose the decree had been in favor of the defendants Justice Marshall; he says: “If by any means whatever in the cause, and no such notes had ever been executed, a prize court should be induced to condemn as prize of or that they had been paid, would the complainant in war a vessel which was never captured, it could not be the cause be bound by the adju lication? Is it possible contended that tho condemnation operated as a change that she could thus lose her property and rights by a of property. The proper distinction is illustrated in proceeding to which she was in no sense a party. The the case of Allen v. Dundas, 3 T. R. 125, where it was decree was in fact for only part of the debt. Without held that payment to one named as executor in a attempting to further follow the discussion into refineforged will which had been presented and allowed in ments it is sufficient to say that it will at last bring us the prerogative court was a protection against the de back to the plain common-sense view of the question, mand of one who had procured the proceedings on the to which we think there is no sufficient answer, and that forged will to be set aside and himself appointed ad. is, that there is no law for administrating upon one's ministrator, this upon the ground that the person being estate until after he is dead, and that no living man is dead the court had jurisdiction; but the judge said bound by the adjudication of a court that he is dead. that if the person was not in fact dead, the whole pro It might be different if we had a statute such as exists ceedings would be void — so that the jurisdiction rests in Rhode Island, or such as the New York court seems upon the fact of death, and this being clearly shown to have construed theirs to be, providing that after an untrue, it must result that the entire proceeding was absence for a given time one's estate may be adminiswithout jurisdiction and void. For at least it sounds tered as if he were dead, subject only to his right to almost absurd to say that any man is to be bound by reclaim the proceeds, in the event he return; even then the judgment of a probate court that he is dead. The it would be a question whether this would not be deargument that the court has jurisdiction to ascertain priving a man of his property without due process of the fact of death is fallacious. For this must assume law. See Albany Law Journal of 15th May, 1880, p. that the court may decide the question either way, and 383. But at any rate, we have no such statute. We if it conclude that the person is not dead, then it has hold the entire proceedings void. We also hold Whitly, no jurisdiction for any purpose. While the court may and his sureties on his bond of indemnity, liable to the hear evidence of the death, the fact is generally as extent of the penalty for the money received by him. sumed, and if the court undertake to put its finding of The amount thus realized will be paid to complainant the fact in the form of a judgment, it gives it no in exoneration to that extent of the trust property. greater validity. This conclusion is sustained by the 1 Lea, 586. It appears that some of the persons to great weight of authority; the direct question was whom Whitly distributed the fund have voluntarily fully considered in a case precisely similar by the paid to complainant part of the amount; an account of Supreme Court of Massachusetts, and this view held this, as ordered by the chancellor, will be taken, and by the unanimous opiniou of the court. Jochumsen the amount credited on the decree on the indemnity v. Savings Bank, 3 Allen, 87. The principle is directly bond. Under the circumstances we disallow interest involved in the case of Thompson v. Whitman, 18 Wall. during the war, and until 1st June, 1865, in accordance 457. By the laws of New Jersey it was made unlawful with our holding in similar cases, upon the ground for any one not at the time a resident or inbabitant of that the parties were for the time separated by the the State to gather clams, oysters or shell-fish in the lines of the hostile armies, and occupying toward each waters of that State, and the law authorizes the seizure other the relation of public enemies between whom of the vessel and its forfeiture, which may be declared commercial intercourse was forbidden. With this by any two justices of the peace of the county in | modification the decree of the chancellor will be which the seizure occurred.

affirmed, and the cause remanded, and the costs of The suit was in the United States court against the this court divided. sheriff who had carried away the vessel, the defense Freeman, J. dissented. was the judgment of condemnation of two justices of the peace of New Jersey, which judginent recited the McFARLAND, J. (upon a petition for a rehearing). fact that the vessel had been seized in their county. This We have been asked to rehear this case on account of was held not conclusive, and it being shown that the its novelty. The only additional argument offered is seizure was not in the county, the judgment of con- ' a review of the question in the American Law Review of May, 1880. This article concedes that the weight of the following agreement between the defendant Wilauthority is in favor of our conclusion, and refers to liam T. Smith and the other defendants is evidence additional authorities in its support that we have not of a copartnership between them. had access to. Moore v. Smith, 11 Rich. Law (S.

“This indenture, made this twenty-fifth day of C.) 569; Melia v. Simmons, 45 Wis. 334. The

April, in the year eighteen hundred and seventy-eight, author only undertakes to say that something may be

between William T. Smith, of Providence, in the State said on the other side of tho question, and puts fortha

of Rhode Island, of the first part, and Mason, Chapin somewhat doubtingly the suggestion that the jurisdic

& Co., of the said Providence, of the second part, tion does not depend upon tho fact of death, but upon

Witnesseth: That in consideration of the agreements the allegation of the fact in the application for letters

herein made, the said party of the first part covenants of administration. If disposed to enter further into

with the said parties of the second part, that on the the discussion we think it could be shown that this

first day of May, in the year eighteen hundred and position is unsound, but wo are content to rest our

seventy-nine, he will pay to them ten per centum of conclusions upon the reasons and authorities already

tho net profits of the business, carried on during the given. The other points in the petition have been

year preceding the day last named, under the name fully considered in the foregoing opinion. As to the

and style of Elmwood Chemical Works, William T. interest after June, 1865, while it is true that complain

Smith, Treasurer,' in consideration of their loan to ant was absent with the notes in her possession, so that

him of $5,000, or of their indorsements for him to that they could not have been paid, yet it is not shown that

amount, for and during the year aforesaid, and will the defendants were ready, or desired to make pay

also pay to them two per centum of said net profits ment, or that they lost the interest.

for each sum of one thousand for which they may inPetition for rehearing dismissed.

dorse for him during said year in addition to said sum

of $5,000; and that he will conduct said business durWHEN JOINT ENTERPRISE IS NOT PART ing said year to the best advantage, and keep accurate NERSHIP

accounts thereof upon books which shall be at all times open for examination by them.

"And that the said parties of the second part, in RHODE ISLAND SUPREME COURT, MAY 29, 1880.

consideration of the foregoing agreement, covenant

with the said party of the first part: that they will Boston & COLORADO SMELTING Co, v. SMITH.

loan to him $5,000 for the term of one year, from the Agreement under seal between A and B by which B was to first day of May, eighteen hundred and seventy-eight,

loan A $5,000 for ono year, or indorse his note for that or indorse his note for that amount, renewable from amount for that time, and also indorse his notes to an

time to time during said term, and will also during additional amount not exceeding $2,000 if B thought

said year, if in their judgment required for the proper such sums required for A's business. For this A was to

management of his business aforesaid, indorse his pay B ten per cent of bis net business profits of the year, and two per cent of bis net profits for each $1,000

notes to an amount not exceeding $2,000 in excess of indorsed for him over said sum of $5,000. A also agree

said $5,000. ing to conduct his business to the best advantage, and “In witness whereof, the said parties hereto set to keep accurate accounts thereof to be at all times their hands and seals, the day and year first above open to B's examination. Held, an executory agree written. ment which if carried into effect would make A and B

“WILLIAM T. Suth, [Seal.] copartners neither as between themselves nor as to third

" MASON, CHAPIN & Co. [Seal.] persons. Held, further, that the lenders having no voice

“Executed in the presence of Edgar G. Robinson, in the management of the business and no interest in

witness to both signatures." the capital, the agreement was for a loan of money or credit in which a percentage of profits took the place of The contract, it will be noted, is executory, and of interest. Held, further, that such a contract did not,

course does not create a partuership between the paraccording to the later English cases, create a partner

ties to it until something is done to carry it into effect. ship at common law, A brought assumpsit against B and others whom A claimed

We presume, therefore, that the meaning of the questo be copartners of B for goods furnished them under a

tion put to us is. Is the contract such that it would sealed agreement executed by A and B. Held, that the

create a partnership between the parties to it, if caraction would not lie. As against B, A's claim rested on ried into effect according to its terms, or such that if a specialty, and as B alone could not be made liable in so carried into effect, it would render the parties to it assumpsit, so B in company with others could not be liable as copartners to third persons? We will conheld in assumpsit.

sider the question as if so propounded. Semble, that if a partnership existed between B and his co

If we regard the contract simply as a contract bedefendants, the partners who did not execute the sealed agreement could only be reached by a bill in equity

tween the parties to it, to be construed as contracts filed by A.

are usually construed, so as to carry out their inten

tion, we think there can be no doubt that it can only A SSUMPSIT. Heard by the court under the sub

be considered a contract for a loan of money or credit joined stipulation.

in consideration of a percentage of profits in lieu of in George Fuller and James M. Ripley, for plaintiff. terest. It gives the lenders no voice in the manageTillinghast & Ely, for defendant Smith.

ment, and no interest in the capital, of the business. Edwin Metcalf, for the other defendants.

It gives them only a percentage of the profits for a

single year in a continuing business. It is true they DURFEE, C. J. This is an action of assumpsit for are to have the right to inspect the books, but only for goods sold and delivered by the plaintiff corporation information. The contract calls the business his, i, e., to the defendants, who are alleged to have been co the borrower's, and it remains exclusively bis as much partners in business at the time of their delivery. The during the continuance of the loan as before or afternames of the defendants are, first, William T. Smith, ward. The contract, as between the parties to it, and second, certain persons constituting the firm of is therefore simply a contract for a loan of money or Mason, Chapin & Co., to wit: E. Philip Mason, Wil credit, and if, when carried out, it renders them liable liam P. Chapin, Charles S. Bush, and Samuel L. Peck. | as copartners, it is not because they have agreed to beTwo questions, one of which may be decisive of the come such, but independently of their agreement, by case, are submitted to the court for determination, | force of an arbitrary or artificial rule, or by operation preliminarily to the full trial. The first is, whether | of law.

The plaintiff corporation contends that the members the import of the opinions delivered in the House of of the firm of Mason, Chapin & Co. have, by sharing or Lords in Cox v. Hickman is correctly summed up by being entitled to share the profits of the business car O'Brien, J., in Shaw v. Galt, I. R., 16 C. L. 375, thus: ried on by Smith, become, if not actual copartners “The principle to be collected from them appears to with him, at least liable with him as copartners to be, that a partnership, even as to third parties, is not third persons for the debts contracted by him in the coustituted by the mere fact of two or more persons prosecution of his business.

participating or being interested in the net profits of a The position taken by the plaintiff corporation has business; but that the existence of such partnership the support of the earlier English and of numerous implies also the existence of such a relation between American decisions, and, previous to the decision of those persons as that each of them is a principal and Cox v. Hickman in the House of Lords, in 1860, was so each an agent for the others." well established that Judge Story, in his work on the The doctrine promulgated in the decision of Cox v. Law of Partnership, while he questions whether it Hickman has been developed and applied in England would not have been “more conformable to true prin- | in many subsequent cases, and may now be regarded ciples, as well as public policy, to have held that no as established law in that country. Bullen v. Sharp, partnership should be deemed to exist at all, even as L. R., 1 C. P. 86; Holme v. Hammond, L. R., Exch. to third persons, unless such were the intention of the 218; Mollwo, March & Co. v. The Court of Wards, L. parties, or unless they had so held themselves out to R., 4 P. C. 419; Pooley v. Driver, L. R., 5 Ch. Div. 458; the public," declares, nevertheless, that “the common Ex parte Tennant, L. R., 6 Ch. Div. 303, the substance law has already settled it otherwise," and that “there- of which is seated in Hart v. Kelley, 83 Penn. St. 286, fore it is useless to speculate upon the subject." Story 290; Lindley on Partnership (3d ed.), 35–47. The docon Partnership, $ 36. The ground of the doctrine was trine has likewise been laid down or approved in many that a person who shares the profits ought to share the American cases. Hart v. Kelley, 83 Penn. St. 286; losses, because he takes a part of the fund out of which Harvey v. Childs & Potter, 28 Ohio St. 319; Smith v. the losses are to be paid. But the ground will not Knight, 71 III. 148; In re Francis, 2 Saw. 286; 7 Nat. bear examination; for in point of fact, the losses are Bank. Reg. 259; Williams v. Soutler, 7 Iowa, 435; Polls no niore payable out of the profits than out of the cap V. Buchanan, 5 Sneed, 721; In re Ward & Co., 8 Rep. ital, and in other cases it has been decided, quite in 136; Richardson v. Hughitt, 8 id. 177. Indeed, it has consistently with this ground, that it is only a partici- been maintained that the American cases, generally, pation in the net, not the gross, profits, which makes have never gone to the same extent as the earlier Engthe participant a quasi partner. Other grounds, but lish cases. Eastman v. Clark, 53 N. H. 276. none more satisfactory, have been suggested. Indeed, Some of the cases above cited are stronger than the the doctrine, though well received by some judges, case at bar. Bullen v. Sharp is such a case. In Mollwo, appears to have been always regarded by others as an March & Co. v. The Court of Wards, the borrower anomaly or legal solecism. It was soon relaxed in agreed to carry on the business, subject to the control of favor of agents or servants, who, it was held, might the lender in several particulars, and to pay the lender take a share of profits by way of compensation for twenty per cent of the profits until the advances were their services without becoming quasi partners. The repaid with twelve per cent interest, and yet it was English courts, however, refused to extend the excep held that no partnership was created, the primary purtion to cover a loan of money, though upon principle | pose being security for the loan. In Polk v. Buchanan it is impossible to discern any difference whether a the lender was to have one-fourth of the net profits portion of the profits goes to pay for services or for for his accommodations, which were to continue for money contributed to the business. Mr. Lindley, in two years, and to havo the product of the business his excellent work on Partnership, suggests that this placed under his control, and yet he was held not to be difference of decision was owing to the statutes against a partner. In Williams y. Soutter it was held that a usury, because in many cases a loan of money for a loan of two thousaud dollars, to be repaid at the expirashare of profits could only be upheld by regarding the tion of a year, with interest at the rate of thirty per lender as a partner. Lindley on Partnership (3d ed.), cent, or one-third of the net profits of the business, did 23-5.

not make the lender a copartner with the borrower. In Such was the state of the law, as it was generally un

Cox v. Hickman, Lord Chief Baron Pollock supposes, derstood, or to put the matter as some of the later as a case in which a partnership would clearly not exEnglish judges prefer to put it, as it was generally ist, the case of a loan to be repaid by the application misunderstood, when, in 1860, the House of Lords de of one-half the net profits as they might arise, the cided the case of Cox v. Hickman, 8 H. L. 268. The lender to have the power to see that the profits were gist of that decision was that a mere participation in applied. If these cases are law, we do not see how it profits does not make the participant a partner unless can be held that a copartnership would result from he has in fact agreed to become such, but is only prima carrying out the contract in the case at bar. facie evidence that he is such, and is rebuttable by In Pooley v. Driver, L. R., 5 Ch. Div. 458, 474, 488, counter-proof to be found in the contract or transac there was an agreement by the recipients of the accomtion or in the circumstances connected with it. The modation to carry on the business “to the best of their real question is, did the person who is sought to be ability." The court relied on this, in connection with charged on account of his participation in the profits other features of the contract, to show that a partnerever enter into the relation of copartner with the other ship was in reality created under the cover of a loan. participant, or in other words, do they participate on For the law will not tolerate any evasion, but wherthe common footing of principals in the business? ever the agreement creates as a matter of fact the And in explication of the question, it was said that relation of partnership, no mere words to the contrary the law of partnership is a branch of the law of agency, will prevent, as regards third persons, its having its inasmuch as, wherever an actual partnership exists, legitimate consequences. Ex parte Delhasse, L. R., 7 the partner who ostensibly carries on the business Ch. Div. 511. In the case at bar, however, we find no does it for himself and as agent for his copartners; or reason to suspect any latent design to create a partnerto put the matter in another form, he and they carry ship under the disguise of a loan; for though there is it on through him on their joint account, so that in here, as in Pooley v. Driver, an agreement on the part law, on the principle of agency, whatever he does in of the borrower to carry on the business to the best the prosecution of the business they do, and whatever advantage, we do not think it affords any inference debts he contracts they contract with him. In Holme that a partnership was intended, for it is scarcely more v. Hammond, L. R., 7 Exch. 218, 230, it is stated that than the law itself would require, namely, that the borrower shall conduct with good faith, and it is cer- Mo. 230; Brown v. Gauss, 10 id. 265; Young v. Prestainly less significant than the stipulations given inton, 4 Cranch, 239; Pierce v. Lacy, 28 Miss. 193; Hawkes some of the cases above cited And see Ex parte Ten v. Young, 6 N. H. 300; Wilson v. Murphey, 3 Dev. 352; nant, L. R., 6 Ch. Div. 303. The lenders make a con- | Shack v. Anthony, 1 M. & S. 573; Evans v. Bennett, dition of the loan that the borrower shall carry on the 1 Camp. 300, 303, note. The reason is because assumpbusiness to the best advantage, because they are de- sit lies only on simple contracts, and when a contract pendent on him, the business being his and not theirs. by specialty exists, all simple contracts of the same

The plaintiff contends that there is a distinction be- purport are merged in it. If, therefore, the action tween an agreement for participation and actual par- were against Smith alone, we think it clearly could ticipation, and that while the former may be only not be maintained, and of course it cannot be mainprima facie, the latter is conclusive evidence of part tained against him and others unless they were conership. We do not find that the distinction is well partners with him. The question is, then, can it be founded in either reason or precedent. It certainly is maintained against him and others if they were his conot well founded if partnership is a fact dependent on partners? There is in our opinion an insuperable obagreement, and not a mere matter of legal imputation, stacle to it. For if he is not liable individually in asand as we understand the current of modern decision, sumpsit because he is liable on his contract under seal it is such a fact; and the only case in which a person, | in the higher form of action, how can he be liable who is sought to be charged as a partner, is precluded jointly with others; the cause of action, which origfrom proving the actual fact is when he has held him- | inally came into existence under the contract under self out, or permitted himself to be held out, as a seal, remaining always one and the same? We do not partner.

see how he can, consistently with the rules of pleadThe plaintiff also contends that inasmuch as partici ing or with the rule that the same cause of action canpation in profits, if not conclusive, is at least prima not exist at the same time as a simple contract and as a facie evidence of partnership, it is for the jury to specialty. It is only in caso the contract under seal say whether the defendants are partners or not. This could be regarded as collateral to an implied contract may be so if there is testimony outside the contract on the part of all the defendants that the action could and its execution going to show the existence of a lie, but it cannot be so regarded because it is itself the partnership. But if there is no such outside testimony, original or principal contract, and being express leaves if all that the members of the firm of Mason, Chapin no room for any contract by implication. Banorgee v. & Co. have done is to carry the coutract into effect ac Hovey, 5 Mass. 11; Kimball v. Tucker, 10 id. 192; cording to its terms, then the qnestion is wholly for the Blume v. McClurken, 10 Watts, 380; Eames v. Preston, court; for nothing done in execution of the contract | 20 Ill. 389. The plaintiff has cited numerous cases, of could create a partnership unless the contract is itself which the three following are most in point: Cram v. a contract for a partnership, and whether it is or not, | Bangor House Proprietary, 12 Me. 354; Van Deussen v. it being in writing, is simply a question of legal con- Blun, 18 Pick. 229; Fagely v. Bellas, 17 Penn. St. 67. struction.

In the first of these cases the contract was for the The Roman law and the modern foreign law, Judge benefit of a corporation, but was signed and sealed by Story says, do not create partnerships as to third per its agents with their own names and seals. It was sons between parties without their consent, and there held that an action of assumpsit would lie against the fore, he adds, the common law appears to have pressed corporation which had received the benefit of the couits principles to an extent not required by, if it is con tract. The court appear to treat the sealed contract sistent with, natural justice. Story on Partnership, as if it were not binding either on the corporation or § 37. If Judge Story were living to-day he would its agents, and if this was so, the decision was right doubtless rejoice to find that the common law, as ex beyond any question. Moreover the action was against pounded by the highest judicial tribunals in England, | the corporation alone and not against any person who does not diverge from the Roman and modern foreign signed the contract under seal. In the second case the law, nor from natural justice, so widely as ho had in- | | action was debt, not assumpsit. The declaration conferred from the earlier English cases. It is certainly a tained, besides a special count on tho contract, general great advantage to have the law in harmony with nat- counts for work done and materials furnished, and the ural justice. A law that no person can share in the court permitted the plaintiff to recover on the latter profits of a business without becoming liable as a part counts, notwithstanding the contract was under seal ner for its losses is not such a law, for it subjects men, and signed in the firın name by only one of the partners. without any fault on their part, to liabilities, as if by The case appears to have been decided without regard contract, which they never contracted. In this State to the previous and thoroughly considered case of there is no reported decision which is inconsistent Banorgee v. Hovey, the contract apparently being conwith the later English cases, and we think the later sidered a nullity, whereas it was, according to the preEnglish cases are to be accepted as the truest and most cedents, the deed of the partner who signed it. Tho authoritative exposition of the common law.

case of Fagely v. Bellas is directly in point, but it is a Taking then the first question to be as previously mere decision without reasons assigned or precedents stated, namely: Would the contract, if carried into cited. We do not think these cases ought to control effect according to its terms, make the parties to it co our decision. The contract here was executed by partners, or render them liable to third persons as co Smith in his own name, and thero can be no doubt partuers? we answer it in the negative.

that he is individually bound by it. There are cases The second question arises thus: The action is as- which hold that where the partner who executes the sumpsit for goods sold and delivered. The goods were obligation is insolvent, the other partners may be sold by contract under seal, executed May 1, 1878, by reached in equity, there being no remedy against them the plaintiff and the defendant Smith, and were sub at law. Purviance v. Sutherland, 2 Ohio St. 478; Line sequently delivered under it. The contract purports | ney's Admr. v. Dare's Admr., % Leigh, 588; Sale v. to be simply the individual contract of Smith with the | Dishman, 3 id. 548; Weaver v. Tapscott, 9 id. 424, 426; plaintiff. The defendants contend that assumpsit James v. Bostwick, Wright (Ohio), 142; Wharton v. cannot be maintained. The question is, can it be Woodburn, 4 Dev. & B. 507. These decisions rest on maintained ?

the assumption that at law an action will lie only on Ordinarily an action of assumpsit does not lie for the specialty. And wo think if there is any remedy money due on a contract under seal so long ag an ac- against the non-executing partners it is in equity. tion can be maintained on the specialty. Gilman v. We think, therefore, there being no claim that the School District, 18 N, H. 215; Clendennen v. Paulsel, 3 I goods were furnished otherwise than in fulfillment of

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