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8 How. 414-428

Notes on U. S. Reports.

790

equity interposed to prevent individual creditor from obtaining lien on firm's assets, which, if obtained, would render firm insolvent and defeat claims of its creditors; Hundley v. Farris, 103 Mo. 85, 23 Am. St. Rep. 866, 15 S. W. 313, 12 L. R. A. 256, and priority of firm creditor to be satisfied from firm property is not lost by dissolution of partnership; Bowen v. Billings, 13 Neb. 443, 14 N. W. 154, where partnership property was held not liable for individual debts until partnership debts were satisfied; Banks v. Steele, 27 Neb. 141, 42 N. W. 884, where claims of firm creditors of insolvent firm, one of whose members is deceased, were held superior to that of administrator of deceased partner; Field v. Romero, 7 N. Mex. 644, 41 Pac. 520, where assignment for creditors of partnership and individual property was held void as authorizing payment of individual debts out of partnership property.

Approved, arguendo, in In re Corbett, 5 Sawy. 207, F. C. 3,220. Cited in Poole v. Seney, 66 Iowa, 506, 24 N. W. 29, holding rule is for benefit of partners and may be waived by them; Smith v. Smith, 87 Iowa, 98, 43 Am. St. Rep. 362, 54 N. W. 74, holding mortgage made by insolvent firm upon its stock to secure indebtedness, part of which is owed by firm and part by individual partner, when made and accepted in good faith, is superior to subsequent attachments of existing creditors of firm. Cited, arguendo, in dissenting opinion, Thayer v. Humphrey, 91 Wis. 301, 51 Am. St. Rep. 906, note, 64 N. W. 1015, 30 L. R. A. 557. See note, 35 Am. Rep. 307. See extended monographic note in 43 Am. St. Rep. 365, 369, 371, on rights and remedies of partnership creditors.

Partnership.— Private and individual property of partners shall not be applied in extinguishment of partnership debts, until separate and individual creditors of respective partners shall be paid, pp. 426, 428.

Cited and principle followed in Swann v. Sanborn, 4 Woods, 634, F. C. 13,675, where all property of partnership belonged to one partner it was decided individual creditors were to be preferred to firm creditors; In re Wilcox, 94 Fed. 103, 107, in construing bankruptcy act of 1898; Smith & Co. v. Mallory, 24 Ala. 635, where partnership creditors were held not entitled to share pari passu with separate creditors in estate of deceased partner; to same effect, Meyer v. Thornburg, 15 Ind. 127, Level v. Farris, 24 Mo. App. 452, and Jarvis v. Brooks, 23 N. H. 147, where land of partner was set off on separate executions, one for debt of partnership the other for individual debt, it was decided the individual creditor should hold the land; Crockett v. Crain, 33 N. H. 550, holding, as between assignee in bankruptcy of bankrupt partner, and creditor of firm, assignee has better right to property; Davis v. Howell, 33 N. J. Eq. 75, and Rodgers v. Meranda, 7 Ohio St. 189, 191, where contention of individual creditors of insolvent partner, that they should be satisfied out of individual assets to exclusion of firm creditors, the firm being in

solvent, is sustained; Kuhne v. Law, 14 Rich. L. 25, where separate creditors of deceased member of firm were held entitled to be paid out of the separate assets in preference to firm creditors.

Cited in Black's Appeal, 44 Pa. St. 507, as containing history of development of rule. Cited, without special application, in Gordon v. Cannon, 18 Gratt. 421. See extended note in 18 Am. Dec. 281, 283. Cited erroneously in In re Collier, 12 Bank. Reg. 266, 6 Fed. Cas. 111, as authority for holding, if there be no joint estate, firm creditors may share pari passu in the separate estate.

Distinguished in Gillaspy v. Peck, 46 Iowa, 462, where judgment was rendered against individual for firm indebtedness prior to judgment on individual indebtedness.

Partnership.- The cases relating to liability of individual assets for partnership debts, and relative standing of individual and partnership creditors, reviewed, pp. 426, 428.

Cited in In re Johnson, 2 Low. 132, F. C. 7,369, quære, whether partnership creditors can share equally with separate creditors in separate property of continuing partner, if there is no joint estate and no solvent partner; also, In re McLean, 16 Fed. Cas. 242.

Miscellaneous.- Cited, In re Spitz, 8 N. Mex. 631, 45 Pac. 1124, 34 L. R. A. 607, as to interest of each partner in partnership property.

8 How. 429-440, 12 L. 1142, GROVE v. BRIEN.

Sales. Where goods are consigned by manufacturer to A. for the use of B., the bill of lading operates as a transfer of legal title to B., whose consent thereto will be presumed, p. 439.

Cited and followed in Halliday v. Hamilton, 11 Wall. 564, 20 L. 215, where title to corn delivered to carrier was held by such delivery to pass to consignee; Audenreid v. Randall, 3 Cliff. 108, F. C. 644, as an authority for holding symbolic delivery may be made of personal property; Nesmith v. Dyeing Co., 1 Curt. 133, 135, F. C. 10,124, holding factor who accepts a bill, drawn against a particular consignment, which has been so far executed as to be placed in hands of a third person, to be delivered to him, acquires property in goods; dissenting opinion, Chaffee v. Heyner, 31 La. Ann. 618, 620, 621, and opinion of court on rehearing, 624, 625, reviewing authorities and holding where grower of cotton ships same by common carrier for account of his creditor, the delivery to carrier is a transfer of legal title to creditor, who thereby becomes in effect the consignor. Cited, arguendo, Neill v. Produce Co., 41 W. Va. 56, 23 S. E. 709.

Distinguished, Hodges v. Kimball, 49 Iowa, 587, 31 Am. Rep. 164, holding, where grain was consigned to commission merchant under agreement that he should sell and apply proceeds to advances made consignor, actual possession of grain is necessary to give lien;

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8 How. 429-440

Notes on U. S. Reports.

792

Chaffee v. Heyner, 31 La. Ann. 601, where consignor refused to accept consignment.

Sales.-The effect of a consignment of personal property, generally, is to vest the property in the consignee, p. 439.

Cited and principle followed in Lawrence v. Minturn, 17 How. 107, 15 L. 61, holding consignee of goods has a right, in his own name, to libel vessel for their non-delivery, unless there be something to show he had no interest in them; The Bermuda, 3 Wall. 553, 18 L. 206, in holding the destination of goods, in absence of proof to contrary, is port in which consignee resides; The Vaughan and Telegraph, 14 Wall. 266, 20 L. 808, where consignee maintained libel against a vessel by whose tortious collision with vessel in which cargo was coming the cargo was lost; The Sally Magee, Blatchf. Pr. 385, F. C. 12,260, where principle was applied in a prize case; Lippman v. State, 104 Ala. 63, 16 So. 130, holding, where mortgagor of personalty without consent of mortgagee shipped property to third person "to do with as he pleased," this was a conveyance of property within meaning of statute making it a crime to convey mortgaged property; Butler v. Pittsburgh, etc., Ry., 18 Ind. App. 661, 46 N. E. 94, holding in action by consignor against carrier for delay in shipping, a complaint containing no averment as to ownership is bad; Hall v. Hinks, 21 Md. 416, holding consignees who bona fide advance money on credit of consignments made them, upon bills of lading, are purchasers for value; to same effect, De Wolf v. Gardner, 12 Cush. 26, 59 Am. Dec. 168, and Hatch v. Lincoln, 12 Cush. 35; Neimeyer Lumber Co. v. Burlington, etc., Ry. Co., 54 Neb. 334, 74 N. W. 674, 40 L. R. A. 540, holding if vendor delivers goods to carrier for transit and causes vendee to be named in bill of lading as consignee, the presumption is vendor intended title to pass on delivery of goods to carrier. Cited, arguendo, The Hiawatha, Blatchf. Pr. 38, F. C. 6,451.

Distinguished in The Bank Carlotta, 9 Ben. 16, F. C. 2,413, where consignor was held to have sufficient title to maintain action against carrier for damage to goods in transit; Southern Express Co. v. Craft, 49 Miss. 496, 19 Am. Rep. 9, where property was shipped at risk of consignor. Modified, First Nat. Bank of Helena v. McAndrews, 5 Mont. 329, 334, 51 Am. Rep. 53, 57, 5 Pac. 881, 884, holding, shipment of goods, pursuant to contract by which consignor was to pay freight, and consignee after sale was to credit consignor with proceeds, does not vest title in consignee, in absence of bill of lading or notice to him of shipment; Summers v. Mills, 21 Tex. 86, where contract of sale was not complete when goods were shipped. Sale. When goods are shipped at risk of consignor the property remains in him, p. 439.

Cited and applied, Southern Express Co. v. Craft, 49 Miss. 495, 19 Am. Rep. 8, holding consignor proper person to maintain action

against express company for non-delivery of money intrusted to its care. Cited, arguendo, Hobbie v. Smith, 27 Fed. 662, without special application.

Lien.- Where goods are consigned to A. for use of B., A. has no lien thereon for previous advances made shipper, p. 439.

Attachment.-Goods consigned to A. for use of B., are not subject to an attachment by creditors of shipper while in hands of A., p. 439.

Cited with approval, Richardson v. Hutchinson, 20 Fla. 23, although case goes off on other grounds.

Transfer of title - Pledge. Where shipper consigns goods to A. for use of B., for purpose of securing pre-existing debt to B., there is no necessity that B. express his assent to transfer in order that title vest in him, p. 440.

Cited and applied, Breath wit v. Fordyce, 60 Ark. 37, 28 S. W. 514, holding the acceptance by mortgagees of a mortgage beneficial to them, will be presumed until contrary is made to appear; O'Dell v. Leyda, 46 Ohio St. 252, 20 N. E. 477, where warehouseman sold grain stored with him, and substituted other in its place, it will be presumed bailors consented to such substitution, when it was for their benefit to do so; Evans Co. v. Bank, 15 Tex. Civ. App. 168, 39 S. W. 215, factor receiving goods with notice that right to proceeds of sale is in third party, cannot divest such proceeds. Cited, arguendo, Johnson v. Farley, 45 N. H. 510, as to when acceptance of deed by grantee will be presumed.

Witness. When A., the maker, consigns goods to B., for use of C., to secure pre-existing debt, A. is competent witness for C. in action for loss of goods, p. 440.

Cited in Cutler v. Fanning, 2 La. Ann. 584, holding mere expectation of benefit or apprehension of loss from event of suit, does not render witness incompetent.

Miscellaneous.- Cited, erroneously, Keene v. Wheatley, 14 Fed. Cas. 197.

8 How. 441-450, 12 L. 1147, SHELDON v. SILL.

Courts created by statute can have no jurisdiction but such as the statute confers, p. 449.

The following citing cases affirm and rely upon this holding: The Assessor v. Osbornes, 9 Wall. 575, 19 L. 751, in holding where jurisdiction depends wholly on statute, suits brought during the existence of the statute fall with its repeal; Sewing Machine Cases, 18 Wall. 577, 21 L. 919, United States v. Southern Pac. Co., 49 Fed. 300, and Harrison v. Hadley, 2 Dill. 234, F. C..6,137, all holding jurisdiction of Circuit Court in all cases depends on act of Congress; North Caro

8 How. 441-450

Notes on U. S. Reports.

794

lina v. Trustees, 5 Bank. Reg. 467, 1 Hughes, 134, F. C. 10,318, affirming S. C., 65 N. C. 715, holding United States Circuit Courts have no jurisdiction of cause in which State is plaintiff against its own citizens; The Hungaria, 41 Fed. 112, holding territorial limits of district within which court exercises jurisdiction being fixed by Congress, this cannot be affected by acts of parties; In re Cilley, 58 Fed. 978, holding power rests with Congress to define and describe to what extent judicial power is to be exercised by Federal courts; Iverson v. Saulsbury, 68 Ga. 794, in holding power conferred on courts of chancery by statute can only be exercised in cases and mode prescribed by legislature, and to same effect, arguendo, in dissenting opinion, Chumasero v. Potts, 2 Mont. 290; Bierbower v. Miller, 30 Neb. 177, 46 N. W. 436, 9 L. R. A. 236, and n., in holding Constitution of United States alone does not confer jurisdiction on United States Circuit Court to hear controversies between citizens of different States.

The following cite the case, arguendo, without special application: Daniels v. Railroad Co., 3 Wall. 254, 18 L. 225, Clarke v. Janesville, 1 Biss. 100, F. C. 2,854, Birdseye v. Shaeffer, 37 Fed. 824, Harland v. United Co., 40 Fed. 310, 6 L. R. A. 253, and n., North German Lloyd S. S. Co. v. Heddin, 43 Fed. 25. Note, 12 Am. Rep. 547.

Circuit Courts.- Act of Congress restraining the Circuit Courts from taking cognizance of any suit on a chose in action brought by an assignee, when original holder could not have maintained suit, is not inconsistent with the Constitution, p. 449.

Distinguished, Holmes v. Goldsmith, 147 U. S. 157, 37 L. 121, 13 S. Ct. 290, where, under facts, assignee of promissory note maintained action in Federal court for its collection when his assignor could not have done so.

Circuit Court - Suits by assignee.- Where mortgagor and mortgagee are citizens of same State and mortgagee assigns note and mortgage to citizen of another State, the assignee cannot maintain bill for foreclosure in Circuit Court, p. 450.

This holding has been extensively affirmed and followed by subsequent citing cases: Walker v. Powers, 104 U. S. 248, 26 L. 731, holding assignee of judgment founded on contract cannot maintain suit thereon in Federal court, unless such suit might be there prosecuted had assignment not been made; New Orleans v. Benjamin, 153 U. S. 433, 38 L. 772, 14 S. Ct. 912, where in suit in United States Circuit Court by assignees of choses in action, bill was held bad for not averring suit could have been maintained by assignors; Clarke v. Janesville, 1 Biss. 101, F. C. 2,854, holding city bond given to railroad company located in same State cannot be sued on in Federal courts, even by assignee; Hill v. Winne, 1 Biss. 277, F. C. 6,503, a case similar in facts to principal cases; Wilkinson v. Wilkinson, 2 Curt. 584, F. C. 17,677, holding assignee of right to an account of

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