DUDEN
v.
MALOY.
183
of some act as evidence in a ,criminal proceeding may perhaps be of doubtful constitutional validity, as every man is entitled to be confronted with the witnesses who testify to the facts which are necessary to make out a cl'iminai charge against him, but certainly no latitudinarian construction can be permitted to sUPDlement or eke out the inadmissible proof offered, "Statutes Prescribing: Forms of Proct;eding 0'1' Modes of Proof. In regard to these the maxim holds good, 'Non observaw forma, infertur adnuliatio actus.' In these cases the proof or procedure required by law is rigidly exacted, the restriction rigidly insisted, without regard to the facts or the hardship of the case, and this with abundant reason, for it is the evident intention of these statutes to preseribe fixed forms or rules to guard against certain abuses likely to occur from the absence of an arbitrary and peremptory provision." Sedg-. St. Const. 275, 276. It is therefore submitted that there is no proof in the record of a posting of the law as is required by section 3 of the act, and that, therefore; the steamship cannot be visited with any of the penalties mentioned in the act. The appellee therefore respectfully moves the conrt to rescind the decree heretofore passed, and to affirm the decree of the district court, because of the insufficiency of the proof upon the point mentioned.
J.Wilson Leakin,for appellee. SIMONTON, Circuit Judge. This is a petition praying that this court will rescind the decree heretofore passed, and that it' will affirm the decree of the district court because of the itlsufficienc"V of the proof upon a point mentioned in the petition. The paper is wholly abnormal in its character. It is not a petition for rehearing. for it does not comply with any of the requisites prescribed by rule 29, 10. O. A. xxiii., 47 Fed. xiii. IUs an argument applicable to a motion made after a rehearing had been granted. 'rIle petition cannot be entertained. It is proper to state that, were this matter presented in proper form, we see no reason to change the conclusion which the court has reached in this case, and a rehearing would have been denied.
v. MALOY.
(Circuit Court of Appeals, Second Circuit. No. 102. 1.
September 26, 1894.)
PARTNERSHIP-AcCOUNTING-INTEREST CHARGED BY ONE PA.RT:KER 'GAINST ANOTHEIt- WAIYElt OF OBJECTION.
In an action by a partner who furnished the capital, against the other partner, for an accounting, the master found that not only did defendant not insist, on his objections to certain charges for interest made against him by plaintiff, when the items were brought to his notice, but that from time to time during the partnership, when such charges were made, he acquiesced in them. HeUl, that neither the finding of the master nor the charges would be disturbed, though such charg.es were large, and snch as would not have been allowed on proper objection by defendant.
2.
SAME-LoI.ND PURCHASED WITH PAItTNEItSHIP ASRETs-INTEItE8T OF PARTXERS.
In an action between partners for an accounting, it appeared that defendant was to furnish nothing but his time, and the contract provided that he was to have one-fourth of the profits of each fiscal year by itself, computed in the manner specified, guarantied to amount, for him. to $5,000; that, if they exceeded that sum, he should draw out only $6,000, and leave the balance in the business at 7 per cent. interest,. until the end of the partnership, when such balance and interest should be paid to him; and that either party could terminate the partnership by six months' writ·
184
FEDERAL REPORi'ER,'
vol. 63.
ten notice. Defendant was pald his' full share of the profits, and all money left In the business, and interest, and more. After June 30" 1883, the business continually resulted iIi after such date, land, was purchased, and'pald for from the firni. assets, but the sum paid for it was not large enough to cover the losses,and enough more so that defendant's ,share of actual, would have exceeded hIs guarantied, profits. Held, that defendant had no Interest In such land. Brown, District Judge, dissenting. S. SAMlil-SALE OF PROPERTy-WHEN NEOESSARY.
III l!-n accounting between partners, it appeared that defendant put In no capital, and the articles prOVided for the ascertainment of his share in money annually, and, at its close, that. aU profits standing to his credit, with interest, should be paid him. Held, that a sale of the land was not necessary. Brown. Dif'trict Judge, dissenting.
4. SAMB-GoOD WILL. In such case, defendant had no Interest in the good will of the business.
Appeal from the Oircuit Court of the United States for the Eastern District of New York. This was an action in equity by Hermann Duden against Michael Franc,is Maloy for an accounting of the partnership affairs of the firm of Duden & Co. There was a decree in favor of complainant, and defendant appeals. Affirmed. For fOrmer reports, see 37 Fed. 98; 43 Fed. 407. William McArthur and David M. Neuberger, for appellant. Mark D. Wilbur, for appellee. Before WALLAOE, Circuit Judge, and BROWN and WHEELER, District Judges. WHEELER, District Judge. This suit was brought in a state court to close the affairs of a partnership, and recover an alleged balance due to the appellee, and was removed into the circuit court for the eastern district of New York" a¥d proceeded with there in equity to an accounting before a master, and a decree for a balance due to the appellee, from which an appeal was taken to this conrt. The assignment of errors raises questions as to the rights of the parties. upon the accounting, and to property remaining. The appellee was before this partnership a' member of the firm of Duden & Co., lace dealers, having a principal house at Brussels, in Belgium, ()ther houses at other places in Europe, and a store in New York. The appellant was employed ina responsible position in the New York store. In April, 1878, he was admitted as a partner under articles into the New York business. The arrange, ment c01l:templated a continuance of the former business, to Which the appellant should contribute nothing from without but his perThe articles witnessed that the appellee, as party of the first part, and the appellant, as party of the second part, "agreed to become copartners to conduct the business of dealing in at the city ofNew York, under the firm name of puden $/;, C()mpany, the partnership to commence on the fifth day of April, one thousand eight hundred and seventy-eight, and to terminate on the thirtieth day of June, one thousand eight hundred and eighty-
DUDEN V. MALOY.
185
three, with liberty to either party to terminate the same at any time, by giving six months' notice in writing to the other of his intention so to do i" that the party of the second part should devote his whole time and attention to the business; that true and correct books of account should be kept by him, or undtlr his supervision, in which all the transactions of the copartnership should be properly entered; that an account of stock should be taken, and the books balanced, on the 30th day of June in each and every and"Third. It is mutually agreed that the net profits of the business shall be divided as follows: Seventy-five per centum thereof to the said Hermann DUden, and twenty-five per centum thereof to the said M. Francis Maloy; such profits to be arrived at by deducting all the expenses of the business, inclUding traveling expenses, all losses from bad debts, interest on the capital employed in the United States business, and, in addition thereto, ten per centum each year on all goods remaining unsold and in stock at the city of New York or any part of the United States at the 1;Jme of taking stock. And the party of the first part agrees with and guaranties to the said party of the second part that his share of the profi1;f! shall amount to not less than five thousand dollars currency of the United States each and every year during the continuance of this copartnership." "Fifth. And it is mutually understood and agreed that, in case the share of the profits of the party of the second part exceeds the sum of five thousand dollars currency per annum, he shall not draw more than one thousand dollars of such excess, but the residue thereof shall be left in the business, and draw interest at the rate of seven per centum per annum, which interest may be drawn by the party of the second part on the last day of June and December in each year, or credited to his account, rnd left in the business at his option. Sixth. That, in case of the death of he party of the second part before the expiration of this his share of the profits up to the time of his death, including any amount that may remain due to him from previous years, shall be paid to his executors or administrators. In determining the amount so to be paid, the profits from the first day of July preceding his death up to the date of his death shall be computed to be the same as the profits for the corresponding period in the previous year. Seventh. Upon the expiration of this agreement, all profits that may be standing to the credit of the party of the second part, including any interest that may be due thereon, shall be paid to the party of the second part, his executors or administrators, in four equal installments, payable in three, six, nine, and twelve months, respectively, from such expiration."
An account of the stock of the store in New York was taken at the commencement. Goods for that store were furnished, and charged to it, by the house in Brussels and other European houses. Accounts of stock were taken on each 30th of June afterwards, and computations of profit and loss were thereupon made, as provided for in the partnership agreement, which, after that first tak(>n June 30, 1878, showed profits for each year to and including the one ending June 30, 1883. In that year the partnership was extended five years upon the same terms mentioned, and land was bought, for which $8,000 was in the next year paid out of the proceeds of goods of the New York store, and upon which a factory was built and furnished for the manufacture of goods for that store, the cost of which was reckoned in computing profit and loss afterwards. The account of stock and computation of June 30, 1R:'!4, showed a loss in the year preceding of $22,740.46, and that of .T nne 30, 1885, a loss of $1,517. The appellant gave notice of termination of tb,e partnership at the expiration of six months trom its receipt,
186
FEDERAL-. RtPORTEn,
:\"01. 63.
whichwouJdbe JanriarY!23/1.886; and'anoocountofstook wa:s afterwards of that ':date, and a computation madeaccol'ding to the with proportionate reductions of the 10 percent. for the part of a: year expired,wbich showed Ii loss of$34,Om!.67. The appellant ha(}overdrawn hIs share of profits, admit and guarantied, to these computations, to the amountof$4,262.l16. As the' aPIlellant,according to the master's findings, had recei ved this , sum' tDollethan .his share of profits, the master reported this sum to have been due from the appellant to the appellee at the dose and as' the ,result -Qfthe parme;J;Ship busi»ess. The title to the lands bought fOl'the factory stood in the name of one Myron Winslow. thissUlt was brought tbe appelIant brought a suit in the suPl'eple court qfi·the state .. ..... the. ,appell,ee WinSlOW, -and others, Rl:lhaving interests, in which he obtained ,R final decree for a conveyance from iWinslow .audwife, "by' "a quitclaim deed unto the 1).1·plof & of all interest in and to lands and'premises,tlie of this action, with the improvements. therein and·:the appurtebaJlces thereunto belonging, the same to iDure to the benefit of the said. copartnership of Duden &OQmpany, of New York,accordingto the respective rights of the p'itthers therein, including the abov&nained plaintur." Upon the \l:tinging of that decree into this suit, the master herein was directed to take a further accolint, "on the theory that the 'factory: referred' to in the testimony herein, was a partpusiness,' l},ership enteJ;'prise, and that the land,business,aJ;ldappurtenances formed part oHbe assets of Duden & Co., of ,New York, at the dissolution of that partnership, and that aU money paid out for land, facbUilding$, machinery, appurtenances, labor: therein, etc., together inci!lental to the operawith all other like costs an4, tion of the said 'business, 'are chargeable to the said firm of Duden & 00., of New York; to take and state the profits and' losses from the said factory business with the .. other accounts of the said firm,"and the value of the good will of the firm of DUden & Co. at the beginning and at the end of this partnership. Upon the taking ofthilil further account, the 1naster reported that the factory enterprise was carried on at a loss in each of the years while in it, and at a loss in the whole, reckoning the the. firm land at its cost When bought, and the factory property at $32,000, its,wllIue as found by him at the close; that the "alue of the good wiIlo£. the New York store taken by the partnership equaled the value of that left by it; 'and that the amountdue from the appellant was not by these additional findings varied. Many of the exceptions to the master's report, -upon the overruling of which by the circuit court error is assigned, were to findings of fact upon contradictory evidence submitted to the master. The case was referred to the master, "to take and' state the accounts between the parties," Upon consent in writing, signed bycollnsel, aftere:x:ceptions sustained to the answer,upon the bill, without being taken pro confesso or admitted by further answer or otherwise established. This COurse submitted to the master all of the issues which would be involved in taking the accounts.
.
;,.
-
..
Mt\LOY·
to have been taken by the master with much painstaking caJ:e,and his conclusions appear to have .been reached upon warrantable evidence, well weigl1ed and. conl.'lidered by him. 'The. statements of the accounts so ,taken are to be presumed correct, unless plain errors are pointed out by specific exception, and not left to be sought out under general statements of. error. Uailway Co. v. Gordon, 151 U. S. 285, 14 Sup. Ct. 343. . One important question attempted to be raised relates tointerest amounting in the whole to a large amount charged in bewlf of the· Brussels house on the price of goods for the New YorkstoreThese charges may hav:e been large, and such as would not been allowed if they had been to, and the objection bad been insisted upon when the items were brought to the notice of the appellant; but the master has found, upon evidence so weighed and considered, not only that the objection was not insisted upon, but that from time to time during the partnership, when such charges were made, theappellant acquiesced in them. This finding cannot with propriety be disturbed, and with it these charges cannot be disturbed. Other important questions relate to the interest of the parties in the property, and especially in the real estate of the factory. As these questions are wholly between the partners themselves, aJ1d not between them, or either of them, and any third person, these rights are to be determined according to the effect of their partnership agreement as the foundation of their respective rights. In Paul v. Cullum, 132 U. S. 546, 10 Sup. Ct. 151, Mr. Justice Harlan said: "While, in the absence of written stipulations or other evidence showing a different intention. partners will be held to share equally both profits and losses, it is entirely competent for them to determine as between themselves ·tlie basis upon which profits shall be divided and losses borne. without regard to their respective contributions, whether of money. labor, or experience, to the common stock. Story, Partn. §§ 23, 24. Such matters are entirely within the discretion of parties about to assume the relations ·of partners."
By the terms of the agreement, the appellant was to have oneJourth of the profits of each fiscal year by itself, computed in the manner prescribed, guarantied to amount, for him, to $5,000. With this provision in his favor, he would not share in losses which would bring the profits of a year below $20,000, whereby his share of actual profits would be less than $5,000, and he could resort to guarantied profits; and these losses were not cumulative from year to year in reduction of future profits, but were to remain as they should fall in each year upon the appellee. If the profits in any year should exceed $20,000, so that his share would be more than .$5,000, as he could not draw out more than $6,000 he might still have a part of his share of profits remaining from year to year in the business; but as the articles provided for the repayment thereQf to him, with interest, he took no risk of losses as between himself and the appellee as to that. It was entirely competent for the parties to provide that, upon the dissolution of the partnership, the firm assets should be retained -\>y the appellee, and the interest of the appellant therein be satisfied
188
FlilDERAL RlllPokTlilR.,
by a payment in' 'Itl'Ortey. Cot Pal'tn; '§ ·17; Assurance Co. v. Drennen, 116 U. S.461, '6 Sup. Ct. 442. ,While the articles do not contain any speCific pro'rision to this effect, it is plain from what they, do provide that itwQS the intention of the parties that upon a termination of the copartnership, whether by lapse of time or upon notice by either party, the appellant shoUld be paid in money for his interest in the businestHmd assets, and, upon a termination by his death,such payment shoUld be more speedily made to his legal representatives. They proiidefor a payment 'in money for all profits to which he was entitled to cvedit at the time of dissolution, upon the basis1lrl:ed' by the artidles. Thesul.'pWs profits remaining in the business, under the fifth clause, are to be repaid, with ititerest The profits not liquidated a preceding annual accounting are to be ascertained, and paid upon the basis by the third clause. The seventh clause, in proViding the terms of the adjustment to take place upon the expiration of the agreement, necesearily provides for the same adjustment, whether the expiration occurs by lapse of time or by notice. It cannot-be imagined that the parties, without making any such express provision, intended to have one mode· of adjustment upon a dissollition caused by death or by the expiration of the original term of the copartnership, and another in case of a dissolution by a six·months notice under the articles, if either should find such earlier expiration to be desirable. The provision for a money payment to the appellant, whichII1ust fall upon the appellee at the termination of th6.partnership, is wholly inconsistent with any idea that tl\e appellant was to have any further interest in the firm assets. It implies decisively the understanding of the parties that the appellee was to have the assets, and suggests that they probably contemplated that tliese assets would be ,the source from which the appellee should realize the money which he would be called upon to pay. The statement of the appellant's account upon the computation of profits to June 30, 1883, which was furnished to him, and as to which he replied, "Its correctness is hereby acknowledged," showed that he had received his full share of all profits to that date, and has been repaid all profits left by him in the business, with interest, according to the articles, and $400.18 more. The state court did nd construe the partnership articles, or state the partnership accounts, or in any manner ascertain the respective interests of the partners, but merely found and held that the land and factory became partnership properly,because they were paid for with partnership assets. 'They were paid for from the assets after June 30, 1883; and, as the business ever after resulted in a loss, this payment would not afl'ect the appellant's share at all, umess the amounts paid would cover the loss,and enough more so that his share of actual would have exceeded his guarantied profits. This payment for the land was not nearly large enough for that, and, making it out of partnership property, was, in effect, a mere transfer of what might, and ul timatelydid, become the sole property of the appellee from the store to the land. The payments on account of the factory otherwise resulted in a net loss, as the master has found and reported; and the
DUDE:!! V. MALOY.
189
result of them in the partnership assets could not and did not in any way affect the appellant's share. The judgment of the state court was, and appears to have been assumed by the circuit court to have been, conclusive of the fact that the land was bought with partnership assets, which .raised a trust in favor of the partners, and it is so considered here; still, as the trust and conveyance were by the decree to inure to the benefit of the partnership, according to the respective rights of the partners therein, and as the appellant, as partner, had no such right resulting as a trust from the payment, or remaining to him after receiving in moneJ his full share of the result of the partnership venture, nothing thereby inured to. his benefit. His interest in the land rested upon no firmer foundation and was no more permanent than his interest in the goods or other property; andthe full measure of all of his rights to the goods, lands, or property was satisfied, and his interest therein terminated, when he had received in money his actual or guarantied share, ascertained and computed according to the terms of the partnership articles. For what he had received more, he was liable to the appellee, and the decree appealed from charged him with that only. Ordinarily, as has been urged, goods or property of a partnership must be, by sale or other proC converted into money on winding it ss, up, and neither partner can take it on an appraisal, or hold it against the other, and leave its value to be found. But in this case, as tlle articles themselves provide for the asC rtainment of the appellant's share in money annually during the continuance of the partnership and at its close, they, in effect, provide for the sale of the interest of the appellant to the appellee at the price ascertained in determining his share. This disposes of the question of property in good will also, in which no right would remain to him more than in the other property, and which the master disposed of upon the finding that the good will taken equaled in value that left These considerations cover all questions properly raised, and show that there was no error in the decree of the circuit court. Decree affirmed. BROWN, District Judge. I concur in the disposition of the points raised on appeal, except as respects the land, which, in an action in the supreme court, conclusive as between these parties, has been adjudged to be partnership assets, and ordered to be conveyed to a receiver. The land has been so conveyed, and is now held by the receiver so appointed, for the benefit of the firm. In the account taken, the plaintiff, Duden, has been charged $32,000, as the value of the land and factory property at the close of the partnership, several years before that adjudication. The necessary effect of that charge, if allowed to stand, will be to transfer the land equitably to Duden, at that valuation; and to require the receiver to convey it to Duden without any sale of it, or any determination of its value by a sale, as is usually required. The defendant, Maloy, has duly excepted thereto, claiming that the land is worth far more than the valuation put upon it; and he insists upon a sale. Unless the articles otherwise provide, or unless the partnership was a partnership in profits only, as the plaintiff on the argument of this ap-
(100
FEDERA.:t,lltEPORTER,
peal coitendOO,'" to. a ;sale, . the: well-settled 'rUle 'forbids preference to .be 'shown toone· partner over ;Mi¢Qtb,ei'ib the Uquidiltion,andhencedisallows either pal'tner to J It!il'elthe 'aasets at a in case 1af, disagreement,and requires thtlti 1:'he firm' propel'ty be sold. 3 Kent. ·Corom. 64; Lindl. Partn. '857; '06t Paffn. §§3{)g.J.R13. . h6weiler, 'a partnership, in profits only. ' That meaniFthat the property used,. otdealt in by the firm, is not firm pl'bpetty, but remains always the individual property of one or more ·of the 'partners. That is a rare and: exceptional.kind of partnership. riot the 'Present tome evident (1) from: the which deClare a general commercial for "dealing'in lace goods,"· and: (2) from the fact that dollars'worth of laces have been bought and sold in the firQi' the ordinary course of commercial partnership dealirigs;'ftllofwhich appear in the firm name, in the partnership books, required to keep, 'and did keep. It is imp6$Sible, as it seems to me, to hOl,d that all these goods were intended to be bought and sold as Duden's individual property. Every line, 6£ the firm 3.ccountscontradicts this theory. Theadjudication {)f tMsupreme court' also has adjudged as between these parties thatthe property wlisfirtn land being held to be firm , assets because bought \Vith funds of the firm. Not do the articles,asfnr as T can perceive, contain anything to 'exclude or applicable to the winding up of a partnershipo1i 'dissolution in case of disagreement. They eontl;\in, no provision giVing to either partner any preference, or any righttQ take the fi rJn 'l1.ssets to tlie exclusion of the other partner, either, at a valuation, or otherwise. 'l'here is nothing whatsoever in articles upop thafsubject. By the second article, Maloy, who Was to keep the 1)()oks of account, agreM "that an account of stock should be taken, and the books balanced on the 30th of 'June in each ahd every year.'" By the third article, after that the net profits should be divided, 75 per . eenh'to Duden, and ,25 per oont. to Maloy, it was declared: "Such profits to be arrived atby deducting expenses,bad debts, interest on capital, and 10 per eent; each yea-r, on all goods remaining unsold, .etc.,atthe time of taking stock," i. e. June 30th. These provisions for taking an account of stock, and balancing the books, on each 30th ofi'June, had, 'in my judgment, no reference to the final liquidation Ofl the firm business. The;)' were expressly designed for each year during the copartnership, and they were for the plltpose of ascertaining approximatel;)' the profits of each year, and how much might be drawn Olltby each partner. .As the account wast() be taken on each June 30th, and was to embrace the business up to that same day, much would,necessarily remain uncertain in the .outstanding credits, and subject, therefore, to correction, in case of 'Subsequent losses iJicollections: on that year's business. Every such: annual account was, therefore, provisionalonl;y; and if any 'Such,:ac,count was taken on the last June 30th, at the end of the partnership, it could not possibly be final. It is plain, therefore,
DUDEN V. MAI,OY.
191.
that these annual accounts had no reference, and were not intended to have. any reference, to the liquidation of the firm business,· or to the accounts to be taken on liquidation. Similarly the 10 per cent. deduction in the price of stock on hand, was merely for the purpose of taking these annual accounts, and to ascertain provisionally the share .of profits distributable to each. When this dedu.ction was made in each annual account, that did not give the stock to either partner to the exclusion of the other. The stock remained firm property as before. It was the same at the close of the partnership. The stock on hand remained still firm property, to be disposed of as such in liquidation; and there is not the least intimation in the articles that either partner should have any preference in the right to liquidate the business for his own profit. to the exclusion of the other partner, or to take the stock at a valuation, contrary to the settled law; nor is there anything in them requiring Duden rather than Maloy to take the stock at a loss, if it should prove to be worth less than the estimate. Duden was bound by his personal guaranty to make good to Maloy $5,000 as his share of the profits annually; he was bound to nothing more, except what the ordinary rules of law impose. The provisions of the fifth and seventh articles seem to me to be without the least prejudice to the equal rights of both partners in liquidation, and to have no bearing thereon. The seventh article, provided that Maloy at the termination of the partnership, "should be paid * * * all profits that may be standing to his credit, including interest that may be due him thereon." This has evident reference to the fifth article, which required Maloy to leave "in the business" "all excess of his share of the profits" over $6,000, "drawing interest at seven per cent." The seventh article did not require Duden in the first instance to pay those profits; they would be "paid," quite consistently with the articles, out of the assets, if the firm was solvent, in due course of liquidation, by whoever had charge of the final liquidation, i. e. by both partners together, or by either alone, as might be agreed on, or in case of disagreement, by the receiver necessarily to be appointed. If the firm was insolvent, these back profits would be absorbed by creditors, and could not be paid from the assets at all; although Duden would be ultim.ately bound by his personal guaranty to make them good to Maloy, through his guaranty of profits in the subsequent business. The postponement of Maloy's right to be paid his apparent profits, to 3, 6, 9 and 12 months, was appropriate and necessary for the correction of errors, according to the ultimate results of the liquidation, as well as to know whether they could be paid out of the assets, or must be paid by Duden per· sonally. There was no similar express provision for paying Duden's profits, inasmuch as Duden was not required to leave any profits in the business. The provisions of the fifth and seventh articles, therefore, seem t() me to contain nothing any more than the second and third, to render inapplicable the ordinary rules of law as to the equal right!!' of partners in liquidation, and Duden, therefore, could not take the land at a valuation against Maloy's consent.
FEDERAL REPORTER,
. TIle' tt'ilsets, other tha,n the land, 'have been disposed of by Duden, after@injunction opuu.ned byllim; and no exception is taken by to the disposition of but the land, a special smt; b:aS been procured by Maloy'to b.e conveyed to a receIver, to be disposed ,of on the firm. account 'The only possible purpose of the judgnielltof the supreme court in: ordering the land to be conveyed to a. was, that it should besQld. If Duden was only to be chargMwith its value at the closeof',the partnership, the conveyance to a receiver was useless, and improper. To refuse a sale, and require in effect :tP.at the land be now conveyed by the receiver back again to Duden without a sale, seems to.:tne to refuse to abide by that adju(iication, and in effect. to annul if pro tanto. The land, moreover,has never been treated as stock; 'neyer subjected to the 10 per cen't.yearly deduction; and is not so treated in the commissioner's account,and it would evidently be improper to treat it in that way. It is still a firm asset. . ... . Independently of tIle the state supreme court, the refusal of a sale of the land seems to me to be erroneous, because . opposed to the well-established rule that disallows to one partner the advantage of taking the assets at a valuation, when the other part· ner demands a sale; because it refuses to admit the proper legal criterion of value; and because the articles in this case cannot justly be construed to vary that.most important rule, or to have intended any variation of it, inasmuch as they contain no express provision on the subject; and because full effect can be given to every word in the articles without any such result; and when that is the case, a difl'erent construction of them is not admissible to set aside so im· portant a rule of partnership law.
BOGAN v. EDINBURGH AMERICAN LAND MORTG. CO., Limited.
(CirCUit Court of Appeals, Eighth Circuit. No. 438. 1. PUBLIC LANDS CITIZEN. PRE-EMPTION -
September 10, 18M.)
DECLARATION OF INTENTION TO BECOME A
Rev. St. § 2259, grants pre-emption ngllts to citizens and those who file a declaration of intention to become such, with certain limitations therein specified. Section 2289 grants to anyone of s.uch persons the right to enmr 160 acres or less on which he may have filed a pre-emption claim, or which is subject to pre-emption at $1.25 per acre. Section 2301 provides that nothing in the chapter relative to bomesteads shall prevent one who has availed himself of the benefits Of section 2289 from paying the minimum price for land 80 entered, and obtaining a patent therefor, on making proof of settlement and cultivation as provided by the pre-emption laws. Heir} that, in the absence of an adverse claim, a qualified preemptor is not deprived of his right to enter and purchase land, as such, by the fact that he made an application for and occupied the land as a homestead before he decIared his intention to become a citizen.
SAME-FORFEITURE OF PRE-EMPTOR'S RIGHTS-POWER OF COMMISSIONER.
An alien applied to enter land as a homestead, and the register and rec/liver of the proper land otfice accepted the application, received the fees, and issued to him the proper receipt. Nearly a year afterwards he