estate are citizens of the same State as the complainants-such executors being mere garnishees and not interested in the main controversy. Bacon v. Rives, U. S. S. C., October 23, 1882; 5 Morr. Trans., 35.

22. SHERIFF'S SALE

-

ARRANGEMENT THAT SALE SHOULD BE FOR BENEFIT OF DEFENDANT. The mere fact of an arrangement between the purchaser and the defendant in the execution, that the sale should be for the benefit and advantage of the latter, does not of itself make the sale absolutely void. It would be voidable by any creditor defrauded, but was good as between the parties to the arrangement. Pentz v. Clark, S. C. Pa., October 2, 1882; 39 Leg. Int., 441.

23. STATUTE OF LIMITATIONS BEGINS TO RUN IN FAVOR OF TRUSTEE.

1. Unless otherwise declared by statute, the cause of action is not ordinarily deemed to have accrued against, nor limitation to commence running in favor of, the trustee of an express trust until the trust is closed, or until the trustee, with the knowledge of the cestuis que trust, disavows the trust, or holds adversely to the claim of those he represented. 2. Hence, where money was remitted to an agent for investment, and he, during a term of years, had made no report of his transactions, nor disclaimed the trust in any way, he can not, by setting up that the claim is barred by the statute of limitations, avoid a discovery of his acts and doings under the trust. Bacon v. Rives,

U. S. S. C., October 23, 1882; 5 Morr. Trans, 3 .

RECENT LEGAL LITERATURE.

PROCEEDINGS IN REM. A Treatise on Proceedings in Rem. By Rufus Waples. Chicago, 1882: Callaghan & Co.

There is a suspicion abroad in the profession that many of the law books which nowadays are from time to time issued from the press are, to put it mildly, superfiuous; that they cover ground already sufficiently occupied by the works of standard writers, and that, in many instances, they are really but a rehash of the contents of the older volumes, without being an improvement upon them.

The volume before us is open to no such cavil. It is a new work and occupies a hitherto unexplored field. Its method is thoroughly scientific and systematic, dealing with the principle which underlies the adjudications, rather than the cases themselves as individual instances, and, consequently, it is justly entitled to the name of treatise, which frequently is unwarrantedly assumed by works which should be more properly termed digests. Things, the object of actions in rem, are divided into three classes: 1. Things guilty; 2. Things hostile, and 3. Things indebted. To each of these, after discussing in the first book actions in rem in their general aspects, is one of the three remaining books devoted.

Under the first head are considered cases of forfeiture, arising out of violations of revenue and

navigation laws, etc.; for piracy, slave-trading, etc.; for obscene and immoral uses, and for nonpayment of taxes. Under the second are found cases of confiscation, and arising under the prize laws, etc. Under the third head are discussed admiralty liens, probate and attachment proceedings and proceedings quasi in rem.

NOTES.

-Lord Lyndhurst, when common law judge, always tended to the side of mercy. He aided an inexperienced advocate, and would see that a client did not suffer through any deficiencies of counsel. After he became chancellor, describing the principles upon which he selected a judge, he said: "I look out for a gentleman, and if he knows a little law, so much the better."-The celebrated Justice Maule was once the subject of a savage onslaught from Fonblanque of the Examiner. When the matter was mentioned to him, he merely said: "Well, I can't understand it; I never did him a favor."-Justice Williams was familiarly called Johnny, except when addressed as "my lord." His clerk, recently married, hanged himself. The next clerk soon after entering his employment, expressed the hope that Johnny would not be offended at his marrying. "Certainly not; marry by all means; but when you hang yourself, do not do so in my chambers," which his former Iclerk had done.

-It is related of Mr. Justice Gray of the United States Supreme Court, that upon one occasion, when on the Massachusetts supreme bench, after a long speech from a verbose attorney, notwithstanding he had stated no further argument was necessary, he said: "Mr. the court is still with you."

.

The constant publication of cases in support of clear law is excessively tiresome, and irresistibly calls to mind the amusing colloquy in "Much Ado about Nothing:" Don Pedro.-I think this is your daughter. Leonato.- Her mother hath many times told me so. Benedick. -Were you in doubt, sir, that you asked her şo often?

Lord Erskine, while going circuit, was asked by the landlord of his hotel how he had slept. He replied dogmatically: "Union is strength, a fact of which some of your inmates appear to be unaware; for had they been unanimous last night they could easily have pushed me out of bed." "Fleas?" the landlord exclaimed, affecting great astonishment; "I was not aware that I had a single flea in my house." "I don't believe you have," retorted his lordship; "they are all married, I think, and have uncommonly large families."

The Central Tam Journal.

ST. LOUIS, DECEMBER 15, 1882.

CURRENT TOPICS.

It has for a long time, been an established doetrine of the law governing the relations of the sexes, that a promise to marry is a valuable consideration to support a contract (Prewitt v. Wilson, U. S. S. C., 14 Cent. L. J. 249), and now the Wisconsin Court, recognizing the fact that the avoidance of matrimony is, in some cases at least, no less desirable than its consummation, has established the corollary that the release from a promise to marry is a valuable consideration to sustain a contract to pay money. The case was Snell v. Bray, and the action was upon such an agreement for the sum of $3,000. Such are the vicissitudes of romantic and amorous human nature, that the defendant had executed an agreement to pay that sum of money to avoid a fate which he had formerly courted. Said the court, to the plea of want of consideration which he urged, when sued upon this agreement: "Certainly the release of one party to a valid contract by the other party thereto is, ordinarily, a sufficient consideration for a promise by the party released to pay such other a sum of money, or to do any other lawful act. Such a transaction amounts to a substitution of one contract for another, the consideration of the original contract being the consideration of the substitute contract. Brown v. Everhard, 52 Wis. 205. As was said by Lord Denman in Stead v. Dawber, 10 Ad. & El. 57, the same consideration which existed for the old agreement is imported into the new agreement which is substituted for it.' We are not aware of any rule of law which takes a contract of marriage out of this general rule. A party to a marriage contract may recover damages of the other party for a breach of it. This snows that the contract has a money value, and it necessarily results that a release of such a contract is a good' consideration for a promise by the party released to pay money for the release."

Vol. 15-No. 24,

The claim of the law to be founded on common sense, as applied to the relations of mankind to each other, sometimes receives confirmatory illustration in the adjudicated cases. An instance of this was Crawford v. Davis, recently decided by the Pennsylvania court, in which it was held that the rule of law requiring a change of possession to give validity to a sale of personal property as against execution creditors, will not be so enforced as to defeat the fair and honest intent of the parties. The facts were as follows: Robert Crawford, an old man, living upon a farm with his wife and son William, sold and transferred certain cattle, together with all the other personalty on the farm to said William Crawford, the latter undertaking to take charge of the farm, to work the same, and to support his father and mother. The arrangement was carried out by William, who took possession of, worked and managed the farm exclusively. The cattle being subsequently levied on by a judgment creditor of Robert Crawford, a feigned issue was framed between William Crawford and such judgment creditor to determine the question of ownership. Said the court: "The general rule is, that a sale of personal property is not good against the creditors of the vendor, unless possession be delivered by the vendor in accordance with the sale. In determining the kind of possession necessary to be given, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties and the intended use of the property. No such change of possession as will defeat the fair and honest object of the parties is required. Thus, where two brothers, engaged in the business of manufacturing coaches, became embarrassed and sold their stock in trade to a third brother, who had been about the establishment before the sale, and who went into possession, continued the business at the same place, changed the sign to his own name, procured another book-keeper, and opened new books; but both the vendors remained in his employ, each of them superintending a particular department of the work at stipulated wages, it was held there was not such a want of corresponding change of possession, as matter of law, to make the sale void against creditors of the vendor. Dunlap v. Bournonville, 2 Cases, 72. The same principle is recognized in Born v

Y:

Shaw, 5 Id. 288; McKibbin v. Martin, 14 P. F. Smith, 352; Evans v. Scott, 8 Norris, 136; Pearson v. Carter, 13 Id. 156.

A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title; and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession can not, as matter of law, be held insufficient. The case should be sent to the jury to find whether the sale was in good faith or merely colorable."

LIMITED PARTNERSHIP.

II.

7. Publication of Certificate, etc.-The legal effect of the publication of the certificate provided for in the statute, is to charge the public with a notice of all matters contained in it; and persons dealing with the co-partnership will not be heard to allege the contrary. Thus, where the general partners, after the time fixed for the termination of such copartnership, continued to give and take notes in the name of the firm, and some of the notes thus given came into the hands of bona fide holders who were not aware that they were not given for debts due from the firm, it was held that such notes would not bind the firm, and should not be paid out of its assets, even though the special partners had, by their negligence in permitting the general partners to continue the business after the time limited, rendered themselves personally liable for their payment.

An error or misstatement contained in the published notice which is substantial and calculated to mislead, will have the same legal effect upon the liability of the special partner as an untruth in the certificate.2 Nor is it necessary, to maintain an action against the associates as general partners in such a case, for plaintiff to prove that he was actually misled by the mistake in the published notice.

1 Haggerty v. Taylor, 10 Paige, 261.

2 Argall v. Smith, 3 Denio, 435; 8. C., 6 Hill, 479. See, also, Van Ingen v. Whitman, 62 N. Y. 513; Pfirmann v. Henkel, 1 Bradw. 145,

› Smith v. Argall, 6 Hill, 479,

But a merely formal irregularity or discrepancy in the published notice will not be permitted to have such effect, provided it appears that there was a substantial compliance with the requirement of the law and that no one was misled or in danger of being misled. Thus, a mistake in the published certificate in the names of the partners, as Argale for Argall, was held not sufficient to vitiate the publication." And where the publication, by mistake, stated that the partnership was to begin on the 16th of November, when it should have been October, it was held that, unless it appeared that the discrepancy was intentional, or that the note of the firm sued on had been executed before the date mentioned in the notice, the mistake was immaterial, and that there was a substantial compliance with the requirements of the statute. So held, too, of a certificate, the publication of which was delayed twentyeight days after its date, as far as concerned persons dealing with the firm after that time.7

8. Alteration of Certificate.-Having formed the co-partnership and given the world notice of its terms in the publication of its certificate, the partners will not be permitted to alter them to the possible detriment of persons dealing with the firm. Such an alteration amounts to a dissolution of the firm, and if the business is continued after it, the members will be liable upon subsequent transactions as general partners. 8

A change of the firm's place of business from the county in which it is registered, is an alteration of the terms of the certificate, and will render the partnership general. So, also, of the addition of a member to the firm. This might be done without the special partner's assent, in which case it would be questionable whether or not he would be charged as a general partner. 10 But if the cash paid as his contribution to the capital of the concern, remains with the new firm, this circumstance is sufficient to charge him as a general partner.

11

4 Pfirmann v. Henkel, 1 Bradw. 145.

5 Bowen v. Argall, 24 Wend. 496.

6 Madison County Bank v. Gould, 5 Hill, 311.

7 Levy v. Lock, 47 How. Pr. 394.

8 Lachaise v. Marks, 4 E. D. Sm. 610; Perth Amboy

Mf'g Co. v. Condit, 21 N. J. L. 659.

9 Riper v. Poppenhausen, 43 N. Y. 68. 10 See Senger v. Kelly, 44 Pa. St. 145, 11 Andrews v. Schott, 10 Pa. St, 47,

In

9. Withdrawal of Capital by Special Partner. Closely connected with the foregoing topic of alteration of the certificate, is that of withdrawal of capital by the special partner, which is a certain sort of alteration. most instances, it is perfectly apparent whether or not a certain transaction amounts to a withdrawal of the special partner's capital, but there are some cases which are not so plain. A sale made before the expiration of the period limited in the certificate, by the special partner of his interest in the concern to the general partner, for a sum greater than his original contribution, payment of which was secured by a chattel mortgage on the assets of the firm, was held to be a withdrawal of capital and rendered the special partner liable generally. 12 But a mere borrowing of money by a limited partnership from the special partner for partnership purposes, whether made upon security or not, is not an alteration within the rule. 13

It would seem that the purchase by a limited partnership of real property, the title of which is taken in the name of the special as well as general partner, will, if assented to or participated in by the special partner, amount to a withdrawal by him of such a proportion of the capital contributed as his interest in such real estate is worth. 14 Such effect, however, will not be attributed to the transaction where his name has been included in the deed without his knowledge or consent. In such case, he is not liable for the wrong done by his co-partners. 15 For it has been held generally, and it is in accord with the dictates of common sense, that a special partner can not be rendered liable personally as a general partner, except by his own acts and of violation or omission, or by assenting to those of his co-partners, when he knows, or is presumed to know them. Consequently, an alteration by the general partners in the nature of the business provided for in the certificate of co-partnership, without the knowledge of the special partner, will not have that effect. 16 10. Firm Name.-The principle that the special partner can be rendered liable gener

97.

12 Beers v. Reynolds, 12 Barb. 288; 8. c., 11 N. Y.

13 Walkenshaw v. Perzel, 4 Robt. 126; s. C., 32 How. Pr. 233.

14 Madison County Bank v. Gould, 5 Hill, 313. 15 Madison County Bank v. Gould, 5 Hill, 315. 16 Singer v. Kelly, 44 Pa. St. 145.

ally, only by his own act or omission, or his assent to or connivance at the act cr omission of his general partner, has been applied, too, to the violation of the provision of the statute with reference to the firm name, by the addition of the words "and company; 17 though it has been held that this requirement of the law must be strictly enforced, no less than the others. 18 But where the special partners of a firm were the brothers of the general partners, being named Bullock, the firm name "Bullock Bros.," was held to be a compliance with the requirements of the law. 19

11. Position of the Special Partner in the Event of the Firm's Insolvency.-The situation of the special partner, in the event of the insolvency of the firm is a somewhat anomolous one, especially so if it happens that he has advanced money to the firm to carry on the business. He is at once a partner and a creditor; a partner, however, only to the extent of his contribution to the firm's capital stock, and a creditor whose peculiar relations to the firm make it just and right that his claims should be postponed to those of other creditors. The word "insolvency," as used in the act, means, it has been held, that the firm has not sufficient property and effects to pay all its debts.20

In the New York statute, passed in 1822, which was copied in Pennsylvania and New Jersey, as well as in many other of the States, was contained a separate section on the subject of the position occupied by the special partner in the case of the insolvency of the firm, in the following words: "In case of the insolvency or bankruptcy of the partnership, no special partner shall, under any circumstances, be allowed to claim as a creditor, until the claims of all shall be satisfied." 21 And in several New York cases22, which have also been followed in other States, 23 this rule was enforced. In the later case of Hayes v. Hayes, 24 it was restricted to debts due di

17 Ward v. Newell, 42 Barb. 482; 28 How. Pr. 102. 18 Andrews v. Schott, 10 Pa. St. 47.

19 Vilas Bank v. Bullock, 10 Phil. 309.

20 McArthur v. Chace, 13 Gratt. 683; Riper v. Poppenhausen, 43 N. Y. 68.

21 1 N. Y. R. S., 767.

22 Mills v. Argalls, 6 Paige. 577; Hayes v. Bement,

3 Sandf. 394; Ward v. Newel!, 42 Barb. 482; s. C., 28 How. Pr. 102; White v. Hackett, 20 N. Y. 178.

23 McArthur v. Chace, 13 Gratt. 683; Dunning's Appeal, 44 Pa. St. 150.

24 35 N. Y., 326.

rectly to the special partner. It was there held that the fact that the special partner was a general partner in another firm to which the insolvent limited partnership was indebted, would not have the effect to postpone the claim of such a partnership on account of the special partner's interest therein. This section of the statute, however, was found inconsistent with the interests of the commercial community, and was abolished by legislation.25 It never existed in Connecticut, where the wording of the statute, which was adopted in the same year as that of New York (1822) neither being a copy of the other, is somewhat different; 26 nor in Massachusetts, where the statute (passed in 1835) wisely omits the provision altogether.27 In the former State it was held that the section of the statute forbidding the special partner to withdraw from the concern any portion of the sum contributed by him as capital, will not, in the case of insolvency, be extended so as to deprive him of the rights of a creditor in the recovery of money due him by the partnership.28

In the case of an insolvent firm, the special partner in which had failed altogether to pay his stipulated contribution to the capital of the concern, the court held that in addition to the legal consequences of such omission provided by statute, a proceeding in equity would lie to compel him to pay the sum to the trustee of the firm upon its insolvency, to be used in the payment of partnership

debts.29

12. Dissolution of a Limited Partnership. -Although, under the provisions of the statute, the certificate specifies in terms the period of the continuance of the partnership, still this fact does not alter the character of the contract as a personal one subject to be revoked by the death of one of the parties to it. Consequently, it has been held that the death of the special partner will effect a dissolution of the partnership, just as if it were a general partnership.30 Where it is desired to give effect to the provisions of the will of a deceased special partner authorizing the continuance of his capital in the partnership

25 4 N. Y. St. L., 453 See also Walkenshaw v. Perzel, 4 Robt. 426.

26 Clapp v. Lacey, 35 Conn. 465.

27 Mass. Gen. St., ch. 55.

28 Clapp v. Lacey, 35 Conn. 463.

29 Robinson v. McIntosh, 3 E. D. Sm, 221.

30 Ames v. Downing, 1 Bradf. 321.

during the period limited, it is only practicable to do so by renewing the formalites of the statute making the personal representatives special partners.31 In Pennsylvania, however, there is an express provision in the statute on the subject, for the continuance of the capital of the special partner through his representatives for the unexpired time, or a sale of the interest in their discretion.32

Any effort to dissolve a special partnership by act of the parties, prior to the expiration of the period limited, must be made in exact accordance with the provisions of the statute for that purpose. Thus where the special partner, after the publication of notice of dissolution, but before the actual dissolution, withdraw his capital from the concern, it was held to render him liable as a general partner. In such case the actual dissolution has been held not to take place until the completion of the publication. 34

33

In the case of a limited partnership, organized for the accomplishment of a specific object, and in contemplation of a single transaction, the accomplishment of that object effects a substantial dissolution of the partnership, and puts an end to the control of the general partners over the capital contributed by the special partners. 35

13. Results of Failures to Comply with the Statute. The liability as general partner which is incurred by the special partner in consequence of a failure to comply strictly with the provisions of the statute, is an absolute liability as a general partner of the concern for all of its contracts and undertakings, and is not limited to the period specified in the certificate for the existence of the partnership. 36

Where persons have attempted to form a limited partnership, but have omitted some of the statutory requirements, such an association doing business will be regarded as a general partnership and the members liable as such. Such, however, is the case only where the partnership formed under such circumstances actually enters npon the transaction of business. It has been held that the mere

31 Jacquin v. Buisson, 11 How. Pr. 385. 32 Purd. Dig., 544, sec. 28.

33 Bulkley v. Marks, 15 Abb. Pr. 454.

34 Fanshawe v. Lane, 16 Abb. Pr. 71.

35 Myers v. Winn, 16 Ill. 136; Bently v. White, 3 B. Mon. 263.

36 Haviland v. Chace, 39 Barb. 283.