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liable to account to each other, and to the special partners in law and equity, as other parties now are by law; and the 24th section provides that no dissolution by the acts of the parties shall take place previous to the time specified for the duration of the partnership, without public notice. There appears to be nothing in the act incongruous with the idea that the partnership is governed by the rules applicable to general partnerships, except in the particular cases enumerated. There is nothing irreconcilable with the dissolution of the partnership by operation of law in the usual cases. I have looked into the statutes of several of the States, where similar laws have been enacted, and while they all imply that a dissolution may occur by operation of law, those of Massachusetts, Michigan, Rhode Island, and Virginia, expressly admit of that mode of dissolution. The code of Louisiana declares that all partnerships shall terminate with the death of one of the partners, and quite a number of these acts prescribe that in cases not provided for, the law relating to general partnerships shall govern. (Rev. St. Mass., 306; Louisiana Code, 2,799, 2,810, 2,851; Rev. St. Maine, 264; Laws Mississippi, 839; Rev. St. Michig., 156; R. S. N. J., 872; Laws Penn., 620; Laws R. I., 282; Virginia Code, 483; Laws Connecticut, 528; Laws Indiana, 429; Code of Georgia, 373.) Now if any other principle is admitted, what is the result? If the death of the special partner does not cause a dissolution, shall that of the general partner have that effect? If the death of the special partner does not dissolve the firm, shall his executor or administrator be the partner? If so, does not that introduce a new name into the firm? And if it does, then the executor or administrator becomes a general partner, and if a general partner, then he can dissolve the firm, (Sec. 12, 2 R. S. 3d ed. p. 50;) or, on the other hand, the estate he represents may be thrown into the hazards of a general partnership, and the executor or administrator have to attend personally to the transaction of a regular partnership business. The above statement of some of the embarrassing results which would flow from this novel proposition, should induce hesitation and caution in admitting it.

No doctrine is more universally established, than that by the death of any one of the partners the partnership is ipso facto dissolved: and this not only as to the deceased partner, but also as between all the survivors, and, however numerous the association may be. The reasoning upon which this result is attained, as well as the rule itself, is amply illustrated by the Civilians, the doctrine having its foundation in the civil law, though it has been recognized and adopted, to its fullest extent, by the common law. The personal qualities, skill, character, and credit of each partner enter so thoroughly into every contract of this kind, that the law very wisely considers it a personal contract, expiring with death. Though these reasons are not so apposite to a special, as to a general copartnership, yet they are measurably applicable. It is true that a special partner has no control over the business of the firm, and contributes, as a matter of duty, no portion of his time, labor, or abilities, towards the management of its affairs, but he may from time to time examine into the state and progress of the partnership concerns, and advise as to their management. This brings him into the most intimate relations with the general partner, and, in view of his right to give advice, it is evident the general partner may perhaps have built up well-founded hopes of a successful and thriving trade, upon the experience, wisdom, and abilities of his associateexpectations sure to be destroyed by death. How often is it the case, that a successful merchant, retiring from the cares of active business, enters into a partnership of this kind, where his knowledge and sagacity, and his influence, are important inducements with the general partner to enter into the contract. Does a limited partnership survive the death of the special partner? Then it is compulsory on the survivor to receive into the partnership, at all hazards, the executor or administrator of the deceased, his next of kin, a creditor or stranger taking administration, or the assignee of such personal representatives; and whatever may be the inconvenience and hsrdship of being thus thrown against his will, into connection with a stranger, or perchance with some one personally disagreeable, or hostile, the general partner must submit to the examination of the books, the visits, and the advice of the incomer. Gow on Part., 3d sec., p. 220.

Collyer, 3d Am. ed., p. 99. The joint stock companies, many of which exist in England, often comprise a large number of persons, and though generally managed by officers chosen at elections, held by the stockholders, they are liable to the application of the same rules of law in regard to death and dissolution as general partnerships, unless provision be made to meet the case in the deed of settlement, or articles of agreement. Collyer, § 1,112, 1,113, 1,115.

The system of limited partnerships, which was introduced by statute into this State, and subsequently very generally adopted in many other States of the Union, was borrowed from the French Code. 3 Kent, 36. Code de Commerce, 19, 23, 24. Under the name of la Societe en commandite, it has existed in France from the time of the middle ages, mention being made of it in the most ancient commercial records, and in the early mercantile regulations of Marseilles and Montpellier. In the vulgar Latinity of the middle ages it was styled commenda, and in Italy accommenda. In the statutes of Pisa and Florence, it is recognized so far back as the year 1160; also in the ordinance of Louis-le-Hutin, of 1315; the statutes of Marseilles, 1253; of Geneva of 1588. In the middle ages it was one of the most frequent combinations of trade, and was the basis of the active and widely-extended commerce of the opulent maritime cities of Italy. It contributed largely to the support of the great and prosperous trade carried on along the shores of the Mediterranean; was known in Languedoc, Provence, and Lombardy; entered into most of the industrial occupations and pursuits of the age, and even traveled under the protection of the arms of the Crusaders to the city of Jerusalem. At a period when capital was in the hands of nobles and clergy, who, from pride of caste, or canonical regulations, could not engage directly in trade, it afforded the means of secretly embarking in commercial enterprises, and reaping the profits of such lucrative pursuits without personal risk; and thus the vast wealth, which otherwise would have lain dormant in the coffers of the rich, became the foundation, by means of this ingenious idea, of that great commerce which made princes of the merchants, elevated the trading classes, and brought the Commons into position as an influential estate in the commonwealth. Independent of the interest naturally attaching to the history of a mercantile contract, of such ancient origin, but so recently introduced where the general partnership, known to the common law, has hitherto existed alone, I have been led to refer to the facts just stated, for the purpose of showing that the special partnership is, in fact, no novelty, but an institution of considerable antiquity, well known, understood, and regulated. Ducange defines it to be "SOCIETAS MERCATORUM qua uni sociorum tota negotiationis cura commendatur, certis conditionibus." It was always considered a proper partnership, societas, with certain reserves and restrictions; and in the ordinance of Louis XIV., of 1673, it is ranked as a regular partnership. In the Code of Commerce it is classed in the same manner. I may add, as an important fact, for the explanation of a distinction to which I shall shortly advert, that the French Code permits a special partnership, of which the capital may be divided into shares, or stock, transmissible from hand to hand. In such a case, the death of the special partner does not dissolve the firm, the creation of transmissible shares being a proof that the association is formed respectu negotii, and not respectu personarum; but even in such a partnership, the death of the general partner effects a dissolution, unless it is expressly stipulated otherwise. But, says M. Troplong, it would be wrong to extend the rule, that a partnership, of which the capital is divided into transmissible shares, is not dissolved by the death of a shareholder to a special partnership, the capital of which is not so divided. The statute of New York recognizes only the latter kind of partnership, the names of the parties being required to be registered, and any change in the name working a dissolution, and turning the firm into a general partnership. Such a partnership has always been held to be dissolved by the death of the special partner. This society, says the author just cited, "reste alors sous l'empire du droit comтип. Elle a forme entre le commanditaire et le commandite, un lien qui n'a pas ete subordonne au caprice de mutations imprevues; elle a engendre des rapports mutuels de confiance, que le commandite ne peat etre force d'etendre a des personnes · etrangeres." This partnership remains under the dominion of the common law.

It has created between the special and the general partner a tie which is not subjected to the caprice of unforseen changes; it has produced mutual relations of confidence, which the general partner cannot be forced to extend to strangers. M. Troplong, Com: du contrat de Societe civile, &c., T. 1, Preface, 57, sec. 377, &c. T. 2, sec. 888, p. 368. The French jurists generally take the same position, defining the special partnership as a proper partnership, and applying the law of dissolution by death to all. Pothier Traite du contrat de Societie, ch. 2, sec. 2; ch. 8, sec. 3. Merlin Repertoire de Jurisprudence, Art. Societe, sec. 7. Duranton, Droit Francais, tom. 17, 1. 3, tit. 9, sec. 470. Pardessus discusses the question somewhat at length. Droit Commercial, tom. 4, part 5, tit. 3, chap. 1, sec. 4. It might be thought, he says, with some appearance of plausibility, that the rule of a dissolution by death should be limited to general partnerships, in forming which the probity and intelligence of each member have been reciprocally taken into consideration. Indeed, the special partnership does not suppose, on the part of the general partners, any personal confidence in the special partners; and as the interests and the rights of the latter are exclusively limited to their shares, it would seem they were not modified by their decrease, and their heirs called to take their place, could have no right to insist that death has dissolved the firm, nor the general partners insist upon that result. These reasons to question the general rule, appear, nevertheless, to yield to others more decisive. The persons and the character of the special partners have been regarded by the general partners, when they formed this kind of association. The special partners, are, in effect, to a greater or less extent, called to the annual accountings, to meetings for the settlement of the profits and losses, and to an examination of the state of the affairs. This scrutiny, and the right to insist upon a dissolution, in consequence of a breach of the contract, or to urge their claims when the affairs are liquidated, are more or less vigorously exercised. The difficulty of acting harmoniously with different persons substituted in the place of those with whom the original contract was made; the distrust of heirs, who have not the grounds of esteem and confidence which influenced the deceased, and the impossibility of treating easily with minors, are some of the reasons which will not permit special partnerships to be excepted from the general rule. It may be objected that these reasons apply only in favor of the general partners, and that it is for them to judge as to the continuation of the business with the heirs. But the heirs of the deceased ought to enjoy the same privilege. Reciprocal rights ought to result from a mutual agreement. There is no solid reason why the special partnership should not be dissolved by the death of one of the partners, except when the capital is divided into transmissible shares, in which case the associates have consented that each may substitute another in his place, as he may desire, without the authority of the others, it is natural to conclude that the heirs of a deceased member fill his place in the same manner as if he had assigned his share. I have given the substance of the reasoning of Pardessus, and the result he attains has not only the authority of M. Troplong in its favor, but also that of other commentators, (M. M. Malpeyre, et Jourdain, No. 474; M. Persil, fils. p. 344,) while it does not appear to have been questioned or doubted.

It thus appears, that in the jurisprudence of that nation whence the peculiar contract of a special partnership has been adopted by us and grafted into our law; where the system has long existed, is familiarly known, and its nature, qualities, and practical relations to various events and circumstances, have been well considered under the light of no brief experience-the effect of the death of the special partner is to dissolve the firm. This agrees with the conclusion I had attained upon independent reasoning, before consulting these authorities, and I am consequently led to pronounce the firm in which the testator was a special partner, dissolved at his death; and to hold the executor, who was his general partner, responsible for the testator's interest in the firm at that time, upon a liquidation of the affairs, then.

ACTIONS AGAINST THE

COLLECTOR OF CUSTOMS ΤΟ RECOVER BACK EXCESS

OF DUTIES.

:

In the United States Circuit Court, Judges Nelson and Betts presiding:1. FOR EXCESS OF DUTIES PAID ON SUGARS.-N. L. & G. Griswold vs. C. W. Lawrence. This was an action against the Collector to receive back an excess of duties charged and paid on sugars, shipped from Manilla, and which were the production of that island. The goods were purchased there in the months of February and March, 1847; but not shipped, in consequence of the vessel, which was sent out, having been disabled, by distress of weather, till the month of August following. The important question in the case was whether the dutiable value of the goods was the market value in the country at the time of the purchase, or at the time of importation. The court held that according to the true construction of the 14th of the act of 1846, the time of purchase was to govern, and not that of the importation.

2. FOR EXCESS OF DUTIES PAID ON SHEEP-SKINS.--Henry Coggill vs. the same. This was also an action to recover back an excess of duties paid on sheep-skins. They were imported with the wool on the skin, and a separate valuation made of the wool and of the skin, and 30 per cent duty charged upon wool, and 5 per cent on the skin. The article was known in trade as sheep-skins. The court held that one article could not be thus separated for the purpose of ascertaining the dutiable value; that it did not fall under schedule H., as raw hides and skins, dried, salted, or pickled. But that it had a fixed name in the trade, not found in the list under any of the schedules in the act of 1846, it fell within the 38th as a non-enumerated article, and chargeable with a duty of 20 per cent.

3. FOR EXCESS OF DUTIES PAID ON EBONY AND ROSEWOOD BOXES.-H. M. Sill, et al, vs. the same. This was also an action to recover back excessive duties paid on ebony and rosewood boxes. They were made of common French wood, for the foundation, and then veneered with ebony or rosewood. No article of the description was imported, made wholly out of that material. They were only veneered with it. The court held that they should be charged under schedule B. as a manufacture of ebony or rosewood, and chargeable with a duty of 40 per cent, and did not fall within schedule C., under the phrase "Paper boxes, and all other fancy boxes," that were liable to a duty of 30 per cent.

4. FOR EXCESS OF DUTIES PAID ON VERMILLION.-Boving & Witte vs. the same. This was also an action to recover an excess of duty paid on an article invoiced and known in the trade by the name of vermillion. It had been charged with the duty as a mercurial preparation, under schedule D., at 25 per cent, whereas, as vermillion, liable only to a duty of 20 per cent, under schedule E. The court held that it must be charged according to the name by which it was known in the trade; and as it was known by the name of vermillion, which had been specifically enumerated under schedule E., that must govern.

5. FOR EXCESS OF DUTIES PAID ON AN ARTICLE INVOICED AS THREAD LACE.— M. Lottimer, et al, vs. the same. This was also an action to recover an excess of duties paid on an article invoiced as thread lace. This article had come into the market since the act of 1844, to wit, in 1847-8. It is composed of linen and cotton, and made wholly by machinery; and had always been known in the trade as thread lace. A duty was charged of 25 per cent, as an article composed of linen and cotton, which, as claimed in connection with the 20th of the act of 1842, came under schedule D., as a manufacture of cotton. The court held, that as the article had always been known in the trade by a specific name, "thread lace,” it fell within the enumeration of schedule E., which specified "thread laces," and was chargeable with a duty only of 20 per cent.

6. FOR EXCESS OF DUTIES PAID ON CAMLET LUSTRES AND FOILES DU NORD.C. Morlot vs. the same. This was also an action to recover excessive duties paid on articles known in the trade as linen lustres, camlet lustres, and foiles du nord. It is a fabric composed of linen and cotton, and was charged with a duty of 25 per cent, under schedule D., as a manufacture of cotton, by means of the operation of the 20th of the act of 1842, which provides that all articles manufac

tured from two or more materials, the duty shall be assessed at the highest rates at which any of its component parts may be chargeable. The article did not come, according to its commercial designation, within any one of the enumerated lists in the statute. It would, therefore, fall within the third, as a non-enumerated article, unless brought within schedule D., by the operation of the 20th of the act of 1842. The principal question in the case was, whether the section had been repealed by the act of 1846. The court held that it had not, either directly, or by necessary implication; that it was not repugnant to any of the provisions of the act, but in aid of them. That it was a rule of construction to determine the character of a given article, and according to which the duty must be charged, and that applying the section to the article in question, it was properly charged as a manufacture of cotton, under schedule D., at the 25 per cent.

7. FOR EXCESS OF DUTIES ON PATENT LEATHER.-Charles Keutzen vs. the same. This was also an action to recover an excess of duties paid on an article known as patent leather. The article is known in the trade as patent leather, or upper leather, and generally used for the upper parts of shoes and boots. It had been charged, under schedule C., at 30 per cent, as a manufacture of leather. The court held that it fell under schedule E., under the description "leather, upper of all kinds," and chargeable only with a duty of 20 per cent.

8. FOR AN EXCESS OF DUTIES ON MUSTARD, LAUDANUM, &c.—Boving & Witte v. the same. This was also an action to recover an excess of duties paid on mustard, laudanum, and fenugreck seeds. They were charged with a duty of 20 per cent, but within the 3d of the act, under schedule E., as a medicinal drug. They have always been invoiced as seeds, and known in the trade by that name. The court held that they properly ranged under schedule J., the free list within the words "garden seeds and all other seeds," and that the latter clause could not be limited to seeds imported for agricultural purposes.

9. FOR EXCESS OF DUTIES PAID ON LINEN POCKET-HANDKERCHIEFS.-Felix Hourdequin vs. the same. This was also an action to recover an excess of duties paid on linen pocket-handkerchiefs. It, and four other cases involving the same question, relate to importations under an act of 1842, and the question was whether a pocket-handkerchief was an article worn by men, women, or children. The question had been decided by the court in October, 1849, when it was held that it was not, and therefore not properly subject to a duty of 40 per cent. That decision governing these cases, judgments for the plaintiffs were rendered in all of them.

CUTTING TIMBER ON LANDS OF THE UNITED STATES.

In the United States District Court, Michigan, October 21, 1850. The United States vs. the Schooner Helena.

This was a libel filed against the vessel in this case, under the 2d section of the act of 2d of March, 1839, and which charges that the master, owner, or consignee had taken on board, and transported from Muskegon, in the State of Michigan, to Chicago, in the State of Illinois, a large quantity of timber cut on lands belonging to the United States, which timber had been transported “with the knowledge of the owner, master, or consignee, that the same had been cut on the United States lands."

The claimant of the vessel interposed an answer to the libel in the nature of a plea to the jurisdiction, and which answer avers that the court had no jurisdiction under the act aforesaid, because the second section of said act was limited to the transportation by vessels of timber cut on lands reserved or purchased for naval purposes, or live oak and red cedar timber which is reserved for purposes of the navy, and that as there was no pretence that the timber carried was cut from lands purchased or reserved for naval purposes, nor was live oak or red cedar, that the case was not within the statute.

The case was argued by George C. Bates, District Attorney for Libellants, and Robert D. Wilson, Esq., of Chicago, and Henry T. Backus, Esq., of Detroit, for Respondents.

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