LIVERPOOL1 BRAZIL & RIVER 1'LATTE NAVIGaTION CO. V. AGAB.
615
LIVERPOOL1 BRAZIL
&
RIVER PLATTE NA"IGATION LELONG."
Co. v.
AGAR
(Uirwit Oourt, E. D. Louisiana. December, 1882.' 1. PARTNERSHIP-LIABILITY IN SOLIDO',
Under the law of Louisiana a commercial partnership is an entity, capable Of being sued, is brought into court, as defendant by service of citation upon one of its members, and while the ultimate liability of the partners is in 8olido,-i. e" joint and several,-tbey, during the life of the partnersh1P, cannot be charged individually except through the partnership: ' 2.JURISDlCTlON-,PAOTNERS-SU'lT BY ALIEN:
This court has jurisdiction of a suit by an alien against a partnership consisting of two partners, one of whom is also an alieIl, and one a resident citizen, the partnership being domiciled in Louisiana, and the obligation sought to l e enforced originating there.
W. B. Benedict, for plaintiff. Charles E. Schmidt, for defendants. BILLINGS, D. J. The facts relating to the exceptions in this ease are undisputed. This is a suit to, recover upon a demand in favor of the plaintiff against the defendants as constituting the commercial firm of Agar & Lelong, domiciled and doing business in the city of New Orleans, and there incurring the obligation sought to be enforced. The partnership and each of the members have been cited, and have severally pleaded the want of jurisdiction iIi this court, on the ground that the plaintiff is an alien, and that Lelong, one of the defendants, is also an alien. _ It is conceded that Agar is a citizen of -Louisiana; that the partnership of Agar&. Lelong was a commercial partnership, domiciled and doing business in the city of New Orleans, and composed of the defendants, Agar and Lelong, and that the obligation sued on originated there.. It is urged, as legal consequences of these admitted facts, (1) that. since the partnership of the defendants is in active existence under the laws of Louisiana, it alone can be sued upon a partnership obligation; (2) that since plaintiff and one of the defendants' firm arealien'?i the court is without juriSdiction as between the plaintiff and defendants' firm. 1 think the first proposition is 'correctly stated. Under the law of 'Louisiana a commercial partnership is an entity,capable of being sued, is brought into court as defendant by service of citation upon one of its memberH, and while the ultimate liability of the partners is in 'lfReported by Joseph P. Hornor,ESq., of the New Orleans bar.
616
FEDERAL REPORTER.
80lido,-i. e., joint and several,-they, during the life of the partner-
ship, cannot be charged individually except through the partnership; that is, during the life of the partnership a partner is, like a corporator in a corporation, liable and made to respond individually only through a judgment against the intellectual being of which he is a component part. In Breedlove v. Nicolet, 7 Pet. 413, under circumstances exactly similar to those in this case, with reference to a Louisiana partnership, the supreme court maintained jurisdiction and gave judgment in favor of an alien plaintiff against two members of a partnership, though the third was not suable by reason of residing in Alabama. But this point as to the liability of the partnership alone in the first instance, and so long as its active existence continues, was not presented. I think the proposition of law here predented must be maintained as resulting from our peculiar law, though it would be true in no other state of the Union. Elsewhere the partners are always individually liable, and the partnership as a 'distinct being cannot be cited. In Louisiana,' during the existence of a commercial partnership, it alone can be sued for a partnership debt, and the citation may be served upon the firm by service upon the partner. The exception of the individual partners must therefore be maintained, so far as the attempt is made to sue them individually. 2. This brings us to the remaining question. In a suit by an alien against a partnership consisting of two partners, one of whom is also an alien, the partnership being domiciled in Louisiana, and the obligation sought to be enforced originating there, does this court have jurisdiction? I think'it has. See Marshall v. Baltimore R. R. 16 How. 325, and Inbu8ch v. Farwell, 1 Black, 566. Indeed, under the provisions of the law of Louisiana a partnership is, so far as this question of jurisdiction is concerned, placed in the category of corporations. Both are creations of a state law, and domiciled in that state. Both may have members who, by themselves, could not be brought within the jurisdiction of the circuit court. Nevertheless, the supreme court has finally settled the doctrine that state corporations, domiciled within the state by which they are' created, are, so far as relates to the enforcement of rights of action by suit, citizens of that state, althongh some of the corporators would not be within the jurisdiction. Louisville R. R. v. Letson, 2 How. 554; Ry. Co. v. Whitton, 13 Wall. 283. The reasoning which leads to this conclusion, with reference to corporations, leads to the same conclusion with reference to Louisiana commercial partnerships.
LIVERPOOL, BRAZIL & RIVER PLATTE NAVIG,ATION 00. V. AGAR.
617
The exception, so far as relates to jurisdiction over the partnership as a defendant; is overruled, and five days are allowed in which to file an answer. A partner's interest in the partnership property may be attached or levied upon and sold on execution for his individual debt;(a) so partnership goods may be levied on under executions against one partner for his separate debt,(b) and equity will not enjoin such sale until the partnership accounts are taken and liquidated.(c) Attachment of partnership assets by an individulJ.l creditor is illegal and must be dissolved, and the attached property be surren· dered to the liquidator.(d) The creditor of a partner cannot subject the interest of a copartner to the satisfaction of his claim.(e) He can sell on execution only the interest, of the debt9r partner in the firm property after payment of debts due by the firm,(!) and a specific asset or property of theftI'm is not subject to attachment, execution, or garnishee process against an individual partner.(g) The interest sold is his share in the surplus after ,aU demands against the firm are satisfied.(h) Where a partner advanced certain. of his individual property to pay a firm indebtedness, the general partnership creditors should be paid before the advance could be paid to the partner.(i) The title to the property still remains in the. firm, and the purchaser acquires only a right to an accounting.(j) The separate creditor may at any time after levy and before sale file a petition against the other partners for an accounting of the joint business ;(k) but a suit in equity is necessary.* The judgment debtor may elect to have the account taken before the sale.(l) The Massachusetts statute, providing for the delivery to a part owner of property attached in a suit against another part owner, does not apply to the case of partnership property attached in a suit against a partner.(m} Where a sepa(a) Wilson v. Strobach, 59 Ala. 488; James v. Stratton. 32 III. 203; Newhall v. Buckingham, 14 Ill. 405; White v. Jones,38 Ill. 159; Hershfleld v. Claflin, Z; Kan.166; Marston v. Dewberry, 21 La. Ann. 518; Choppin v. Wilson, 27 La. Ann. 444; People's Bank v. Shryock, 48 Md. 427; Saunders v. Bartlett, 12 Helsk.316; Weaver v. Ashcroft, 60 Tex. 428. (b) Place v. Sweetzer, 16 Ohio, 142. (c) Sitler v. Walker, 1 Freem. Ch. 71; Place Y. Sweetzer, 16 Ohio, 142. (d) New Orleane v. Gauthereaux, 32 La. Ann.
l1:2l1,
(e) Dieckmann v. St. Louis, 9 Mo··-\pp. 9, (I) Merrill v. Rinker, Bald. 528; Jones Y. Thompson, 12 Cal. 191; Brewster v. Hammet, 4 Conn. 540; Lyndon v. Gorham, 1 Gall. 367; Knox v, 8chepler, 2 Hill. (S. C.) 595; White v. Dough. erty, Mart. & Y. 309; Pierce v. Jackson, 6 Msss. 242; Hacker v. Johnson. 66 Me. 21; Wi1liams v. Gage, 49 Miss. 177; Tappan v. Blaisdell, 5 N. H. 190; Menagh v. Whitewell, 52 N. Y.146; Knox v. Summers, 4 Yeates, 417; McCarty v. Emlen,2 \-eates. 190. (g) Marston V. Dewberry, 21 La. Ann. 518; levy v.Cowan, 27 La. Ann. 556; BullflnchV.
Wlnchenbnch,3 Allen, 16; Claggett v. Kilbourne, 1 Black,346; London v. Gornam, 1 Gall. 367; Cook v. Arthur, 11 Ind. 407; People's Bank v. Schryock, 48 Md. 427; Fisk v. Herrick, 6 Mass. 271; Atwood v. Meredith, 37 Miss. 635; Hacker v. John Bon, 66 'Me. 21; Gibson v. Stevens,7 N. H. 352; GarvIn v. PaUl. 47·N. H. 158. Coutra, Thompson v. Lewis, 34 Me. 167; Fogg v. Lawry, 6BMe.78. (h) Place v. sweetzer, 16 Ohio, 142; Osborn v McBride, 16 Bank. Reg. 22. . (i) Gordon's Estate, 11 Phila. 136. (1) Andrews v. 'Keith, 34 Ala. 722; Wllsou T. Btrobaeh, 59 Ala. 488; Sitler v. Walker,l Freem. Ch. 77; Barrett Y. McKenzie, 2t Minn. 20; Deal v. Boone, 20 Pa. st. 228; Rheinheimer v. Heming_ way,35 Pa. St. 432; Smith v. Emerson. 43 Pa. St. 456; Lathrop T. Wightman, 41 Pa. St. 297. Se& Atkins v. Saxton. 77 N. Y. 195. (k) Nixon v. Nash, 12 Ohio st. 641, (*) Broadnax v. Thomason, 1 La. Ann. 383. Nixon v; Nash, 12 Ohio 8t. 647; Knight T. Ogden, 2 Tenn. Ch. 473. (I) Hacker v. Johnson, 66 Me. 21. (m) Breck v. Blair, 129 Mass. 127.
618
REPORTER.
rate creditor levied UpOIl and sold an, UlldiVidl'lli one-half of the partnerghip property without bringing an action to determine such partner's interest, held, that a creditor of the firm who sul:isequently levied upon the property may maintain an action in equity to determine the conflicting claims of the credEors.(n) An individual credito'f who has attached partnership assets is not a necessary pa:::ty to a suit in which a liquidator is subsequentlyappointed.(o) A judgment, although signed by two partners, will be considered an individual indebtedness unless shown to be for a partnership debt.(p) Real estate of the firm may be treated as personalty in so far as may be necessary to secure the payment of the firm debts.(q) Ifpnrchased with partnership funds, though the title be taken in the indivIdual name of one or both parties, it is first subject to the partnershIp debts.(l·) The holder by conveyanceor bequest of one partner's share of the lands of the firm must pursue his remedy for their possession by suit in equity.(s) The possessor of the legal title in such case bolds it in trust for, the purposes of the partnership.(t) A judgment against a partner individually is a lien on the real estate held by the firm, subject, however. to the payment of the firm debts and the equities of the other partners.{n) Where partr.ership is still in existence, one partner cannot mortgage the stock under his control to secure his individual debt.('ll)-ED.
a
mG.
(n) Aultman T. Fuller, 53 Iowa, 60. (0) New Orleans v. GautllereullX, 32 La. Ann.
(I') McKenna's,Estate, 11 Phila. 84. (q) In re Coddlng& Russell, 9 Fed. Rep. 849.
(.) Young v. Dun'n, 10 Fed. Rep. 711. (I) Shanks v. Klein, 11 Fed. Rep. 767. (u) Johnson v. Rogers. 16 N. II. R.I. ;\oIoline Wagon Co. v. Rammell, 12 Fed. Rep.6G8.
(to) Shanks v. Klein, 11 Fed. Rep. 761.
THOMAS
v.
TOWN OF LANSING.
(Uircuit Court, N. D. New York. 1.
8eptembl'" 6, 1852.
TOWN BONDS IN· Am OF RATL'1oADS-POWER TO ISSUE.
Where an act of the legislature provided that any town, village, or city in any county through or near which a certain railroad or its branches rna)' be located, except such counties, towns, and cities as are excepted from the provisions of the general bonding law, may aid or facilitate the construction of the said 'railroad, held, in an action on con.pons from bonds issued by a town in aid of an extension of such railroad, that the location of th!l route of the whole exteusion must be made by the board of directors of the road, and the two termini fixed and ascertained pursuant to law, before a town was empow· -ered to issue bonds in aid of its construeti9n. 2. SAME-DE8IGNATIONOF ROUTE. Where the determination of theqtiestion of location of the route and of the extension had been confiderl. to the board of directors of the railroad extension by the .authorizing the construction of theroa4, it was not the province of 'the. town commissioners to determine it ; and, although the county judge could designate the commissioners who should issue the bonds, yet he could not (lesignatethe municipality, nurcould he designate the commissioners until after the board of directors had ,designated the municipality
