and to proceed in the trial of saip.case or easel;! against the 8urvivingdefend· ant, to the extent of their respective liabilities." ' "
This establishes a rule of practice in the courts of the state; but it can have noefl'ect in the Courts of the United States, where the doctrines of equity are administered under the general chancery practice. Mandl}-ville v. Rigg8, 2 Pet. 484. The want of parties. is an ordinary equitable defense. Adan1s, Eq. 331. Though 0. plaintitrmaybe fully ,entitled to the relief he prays, and the defendant may have no claim to the protection of the court which. ought to prevent its interference, yet the defendant may object to the, bill for want of proper parties; and.if the defect is not apparent on the face of the bill, the defendant may plead the matter necessary to show it. Mitf. Eq. PI. 325. This exception maybe'also/insisted on in the answer, or at the pleading. Story, Eq. Pl.:541; I,Daniell, Ch. Pro 287. A plea fen-want of proper parties is a plea in bar, and goes to the bilf,i as well to discovery as to the relief, where relief is prayed., DlUiiell, Cli. Pro 290. For thesecreasons the demur:rer to the plea: is overruled. '
,OsnORNE and, others
BARGE and others.
(Oilrc'rltt OowH,N.D.lotiJa, O. D.' J8.i1UaryTel'D1, 188'7.)
1. 'PARTNERSHIP-ASSIGNMENT FOR BENEFITOP' CREDITORS. B. and K., partners, agreed upon an assignment, fprthe benetlt of and directed an attorney to prepare t1,J.e necessary papers, and draw up a,schedule of assets, November 6,1886. November 8th; at 8 A. Mo, the deed of aslJignmentwasexecuted in the:firmname by Bo' November 8th; at 10 Ao M., Jr., with· outtl;J.e knowledge or cpnsent of his partner, executed a chattel mortgage of full :flrJn stock to secure a note given for indebtedness of the fitm to the plaintiffs, and November 9, -1886. Held that, the having been agtaEld toby the :firm, each partner was authorized to execute the deed thereof, and the Sl'me was valid.
Held, jU'1'ther, that, the chattel mortgage not being in furtherance, of the business; neither partner had authority to execute the same without the con· sent of the ,firm, andtherefQre it was invalid.
In Equity. Bill to foreclose chattel mortgage. Exceptions to an,swer. " Marilin kWamback and Wright&: FarreU, for cow.plainants. Kamrar &: Borye and W. J. 00vU, for defendants. SHlBAS, J. The bill filed in this cause sets forth that on the eighth -day of November, 1886, the firm of Barge ,&King, being indebted to complainants in the Bum of $2,529.31 for goods sold,executed their certain protnissory note, payable, on or before 9, 1886, for the named jand 1;0 secure the payment thereof also executed a chattel
the property: of 'tlieftJ'ttl,the same beingsi9ned "BARGE: &KING, by W. T. KING." To 'the bill filed'herein, for the purpose of foreclosing this mortgage, Barge & King, B. F. Barge, W. T. King, IUld Robert; Fullerton are 'made parties defendant; and B.F. Barge and ert FUllerton answer the bill, setting forth that on the sixth day of vember,1886, the firm of Barge & King, composed ofB.F. Barge and W., T.Kmg-,'being whony insQlvent,thepartners mutually litgreed that a generalaesignment, for the' benefit of their creditors, should be made by the firttl to Robert Fullerton, as assignee; that the partners went to the office of an attorney, and ditected him to prepare the necessary papersto complete such assignment; that the said W. T. King 'prepared and signed the schedule of assets and liabilities, intendl¥lto be attached to the deed ()f aB$ignwent when prepared;' and that about 8 o'clock A. M. of November 8th the said assignment was completed" the firm name being signed to ithe deed by B. F.: Birge. It is also averred that the :mortgagetocomplainantsiwas not e1.eoated until about 10 o'clock A. H. of November 8th, at which time the firm of Barge & King had ceased to exist; that said: King had' no authority to execute the mortgage in the firm name, the same being done without the knowledge or assent of said Barge; and that the mortgage is consequently invalid. Fullerton, the assignee in the deed of general asSignment, sets forth the execution and delivery of the deed, his acceptance of the trust thereby created, and avers that, as against such assigI}p1e!1t, mortgage is oJ, no effect. It appears, therefore, that, the firm bell1g ll1solvent, one partner executed a deed of general the qther a .chattel mortgage to the complainants; and the exceptions to the answer present the question whether either one,. and,if so, whiQb 4 Qf these instruments, is valid, under the state'of facts set forth ill the answer. ::.i\;sa generall'ule, it is .held member of anordinary.partnership has authority, as the agent of the firml to do such acts as are necessaryor usual in the transaction oftl;le business in the ordinary way;' but tl;lat, 8:8 to act'S not in the furtheranCe, pf the business of the partnership in the ordinary way, but which may put an end to the same, or the natural result of which is to take the control and managementof,'the and property from t4epllrtners, it is necessary, to sustairi firm the validity of such acts, that it appear that the same were done with the assent of all the partnel'2. As the effect of a general assignment for the benefit of creditors under the Iowa statutes is to convey all the property of 'the assignors, not exempt fromexec\ltion, tothe assignee, and'to terminate the. control of the assignqrs over such property, it follows that lawfully made by a firm, practically termisuch an nates the business of the partnershipi and such an act, therefore, cannot be deemed to be done in furtherance of the ordinary business of the firm, but, on the contrary, it terminates the business of the partnership, and, 'to give it validity, it must appear that the assignment was assented toby all the partners'. Thefeare cases wherein, by'reason of the absence of some of the partntlrs,ortheir inability to act, as by reason of insanity or the like, 'it. general assignment;'executed by one of the partners, has
been. sustained; but in these cases-tbeassent of all has been inferred, and hence even these cases do not present an exception to the rule that, to make a general assignmeutvalid, the same must have been executed with the assent of all the par,tne1'S. Emerson v. Senter, 118 U. S. 3, 6 Sup. 'Ct. Rep. 981; Deming v. Colt,3 Sandf. 284; H(1,V&n8v. Hussey, 5 Paige, 30; Kirby v. IngersoU, 1 Doug. 477; Dana v. LuU, 17 Vt. 390; Stein v. LaDow, 13 Minn. 413, (Gil. 38l;) Brooks v. 32 Wis. 449; Loeb v. Piel'point, 58 Iowa, 469,12. N. W. Rep. 544. . In the latter case the supreme court of Iowa held that a partner has not the power to execute a general assignment, under the laws of Iowa, without the assent, express o:dtnplied, of his copartner, when the lat;ter .may be consulted, and is capable of expressingaB$ent or dissent. ., . ['0 spatain' the general assignment set forth in the answer in this cause, it muSt ,therefore appear that it was executed with the assentofbotb partners. It is not necessary that the signature QCboth partners. should be appended to the deed of assignment. , The property affected :by the assignment belonged to the firm, and the execution of the deed in the firm name is all that is needed. to pass the title. , T,he averments of' the answer show that it was agreed between the partners that the assignment should be made, that the person to act as assignee was agreed upon, and that the partners jointly gave the instructions for the preparation of the deed of assignment, and both signed the schedule of property attached to the deed. From these facts, thus averred, no other conclusion can be fairly drawn than that both partners assented to the making of the assignment; and, it not appearing that this assent was withdrawn, it must be held ",hen the deedofassignmentwtLS executed by B. F. he had authority so to do from his copartner, and the deed is therefore the act of the partners, so far as it appears from anything averred or shown upon the face of'the record. According to the allegations of the answer, the deed of was executed before the chattel to C9mplainants. If so, then the title of the property had passed before the eXecj:l:tionof the mortgage, and the latter would not affect the title conveyed 'to the assignee in trust for the ..' The answer also avers that the was executed by King alone, wl.thouttheknowledge otasserit of Barge, and thatit is therefore invalid for want 'of authority. If a mortgage is. given upon the stock in trade of a partnership, snd under· such' circumstances that the giving thereof the business of the fitm, rio reason is perceived why the assent of both partners is not as essential to give validity, to sucb ihStrument, as in the case of a general assignment. The mortto covered practically all the stock of the gage firm, came due in 24 houraafter its date, and gave the moru;agoos full power to take of the property, and to sell the same for the payment of the mortgage' debt. The practical effect, therefore, of the.instrument, if enforced, would be to terminate the busine!ls of the fil'lUl 'and· to hand over the control and right of disposition Qfthepartto a third party. The right to thus destroy thtl life .and husmess the firm isnQt, possesSeq. .py one of the partners, aIi;d, to
be valid, it must appear that suchan instrument was executed by the authority of all the partners. The position of counsel for complainants, that as complainants, when they received the mortgage, did not know of the dissolution ofthe firm: or of the execution of the assignment, they are protected, in that they dealt with theparbler in ignorance of the dissolution of the firm, and without notice thereof,has no bearing upon the real, point at issue. Even if the firm had not been dissolved, or if the assignment had not been executed,the right toexe6ute the chattel mortgage in question was not possessed by the one partner; and the complainants were bouud to know that the Ulortgage, being signed by one partner only,wonld not bind the firm unless all the partners assented thereto. If, then, it be true, asavened in the answer, that the mortgage was executed by -King alone, without the knowledge or assent olhia partner, Barge, and that the latter'repudiated the Battle as soon as' notified thereof, it follows that the mortgage cannot be'deemed·to be·theact of the firm, and does not bind thefil.'m property. " The eX,ceptions to'the answer are therefore overruled. ,
UmONPAC. Ry.Co. ".
N. & S. Ry. Co.
(At Law.) ,
N. & a.RY. Co.'V.'U:NIONPAC. Ry! Co. , .
February 4, 1887.)
(i:Jircuit Gourt, D.
RAiLnoAD Ccn&iNtEs-:.EMINENT DOMAIN-CRoSSING OF RIGHT OF WAy-LAWS
Section 13 of the Pacific Railway: ",ct of July ,1,1862. incorp.orating the Union Pacific Railway\ and that any railroads now inco.rporated·.or llereafter t() 1;Ie mcorporated. 'Shall have tpe rIght to .connect 'theIr rOl;l.d wIth the road and 'branches provided;for by thIS act" at such placesllnd upon such just,and ,eq)litable terms as the the United States may })rescribe," aries not the of way.oftheUnionPacific Railway beyond the reach of the power ofemment domam of the state of Kansas; nor exempt it ,from the operationibJ the laws of the state respecting the orossing and connecting alld theconde'l!lnatioIl,of proIJert:r for these purposes; following timon Pac.Ry. Go. v. Burltngton <& M,R. R. Uo., 1 Mcprary, 452; S. C. 8 Fed. Rep.l06. '; , " I. SAl(lll':'CONDEllNING CROSSING OWB,ANOTHEB'RAILROAD-S:rEOIA1.o PaOfllliEDLAwsJ4.N. 47.' ", A instituted, under, sectidn47, Comp, Laws Kall. 1879. c. 23, in the district' citart. by one railroad company to condemn, a crossIng'over the , right Of way another· railroad; is'not a civUactiOl)., but a speciilJ.proceeding. " ,and,as ordinlU'yrules of, Ilot apply.; OF ; " · "" , . , , InaProce,eding "beA"un by conipany to hav'ecomniission'ers appointeiho ascertain tlle compensation, to' be paid to another railroad ,COJ;npany l.'1CliQ,Ilfl" i, ngth, e latter's ri"ght, ofW,ay · a,nd the points and man,ner Of, s,uch;cross, big, thll should be heard in' the selection of such commissioners, 8lthough theii' aotion is not final, but subjll'ctto review by court.
oFKANilAS-PAd!F'IC RAtUWAyAoT U. S. 1862. lUIS; , '