mittee on Commercial Law for more than twelve years. This was partly due to the fact that when the Committee on Commercial Law first undertook to draft a Partnership Act they and the draftsman selected, Dean Ames, were confronted with a difficulty from which most legal subjects are happily free. There exists-we may almost say existed-two theories of the legal nature of a partnership. One of these regards a partnership as an association of two or more persons carrying on business as co-principals. The name "aggregate," which is sometimes given to this theory, does not very happily express the underlying idea that in partnership transactions the individual partners deal directly with each other and with third persons. This theory is also called the common law theory of partnership, because in the great majority of decisions relative to partnership transactions, consciously or unconsciously, the courts proceed on the underlying assumption referred to.

The other theory is, that when two or more persons form a partnership, the law should regard the association as having a legal personality distinct from the individual legal personalities of each partner. Under this theory, all partnership rights are vested in this legal personality of the partnership; on it are imposed all partnership obligations. The partners are the agents of the legal entity. The theory is called the entity theory-again not a very happy designation, as the essence of the theory is not that it regards the partnership or association as a distinct thing, but rather that it endows the association with a separate legal personality. By its advocates it has also been called the "mercantile theory," on the assumption that business men in partnership transactions, whether inter se or with third persons, proceed on the fundamental premise on which the theory is based. Such an assumption, however, is entirely unwarranted. Business men, as such, have to do with fact, not legal theory. When a business man deals with persons carrying on business in partnership, the character of the partners and their total wealth, individual and collective, is all that is important to him. The rule that partners are unlimitedly liable for partnership debts is the only thing approaching a legal theory which he need carry in his mind.

In 1902, when the Committee on Commercial Law began to prepare the first draft of the Act, the second or entity theory, though its advocates admitted it changed our entire law of partnership, had gained a large number of adherents, among others, Dean Ames.

Mr. Ames believed that it would be impossible to solve many of the existing confusions and inequities in the law of partnership, especially the rights of the separate creditors of a partner, without adopting the entity theory. The two drafts which he prepared were both drawn on that theory.

That the entity theory does enable a satisfactory solution of the rights of separate creditors of the partnership to be had is evident. If the partnership is a legal entity against which the partners have claims for their shares in the profits and in the surplus, after the payments of debts to third persons, then the separate creditor of a partner may garnishee the fictitious legal person or bring a bill in equity against it for the purpose of ascertaining the claims of his debtor, and having these claims paid over to him, in the satisfaction of his judgment.

When the writer was selected to continue the work of Mr. Ames, it was not long before the difficulties created by the entity theory in other branches of the law of partnership began to appear, and I began to doubt the possibility of drafting a satisfactory act on this theory. It appeared to me that the proper way to settle the controversy was to present to the Committee on Commercial Law two drafts, one drawn on the entity and the other on the common law theory of partnership, and ask the Committee, before submitting the drafts to the Commissioners, to call a meeting of persons having special knowledge of the law of partnership to discuss the drafts and the respective theories underlying them. This idea was carried out. Two drafts were drawn, and the conference suggested held in Philadelphia in the fall of 1910. Practically all teachers and writers on the law of partnership in the United States were present, as also a number of lawyers known to have made a special study of the subject. At the conclusion of the discussion, the members of the conference all joined in recommending that the Act be drawn on the common law or aggregate theory, and that the partners be treated as owners of partnership property holding by a special tenancy, which should be called tenancy in partnership. This recommendation, as explained, has been carried out.

One of the chief difficulties with the entity theory is that, while it enables us to solve the rights of the separate judgment creditor of a partner in the partnership property, it makes it impossible to work out in a satisfactory way the rights of a firm creditor against the separate property of a partner. If the partnership is a separate legal personality, what is the relation of the partners

to those who have business transactions with the partnership? Are they to be regarded as co-principals and the partnership contract with third persons as a joint contract of the partners and the legal entity; or shall the partners be regarded as guarantors or as sureties; or shall the partners be regarded as not having any legal relation to those who deal with the partnership, but merely contracting with the legal entity to pay partnership debts, if the property of the entity is not sufficient to pay them?

This last position, which denies all contractual relations between the partners and the person dealing with the partnership, was the one taken by Mr. Ames. Indeed, consideration seemed to indicate that it was the only position that gave any promise of a satisfactory solution of the many problems raised. If the partners have no contract with those who deal with the partnership, it follows that a firm creditor who secures a judgment cannot levy that judgment on the separate property of a partner. He must, to be consistent with the theory, be required after judgment to bring a new proceeding against the partner whose separate property he desires to subject to the payment of his debt. This is a cumbersome proceeding. It is based on a theory which violates the idea of every business man who deals with a partnership, that he is dealing with a group of persons who are directly and unlimitedly liable for partnership obligations.

Should we abandon Mr. Ames' position, and while adopting the entity theory, regard the partners as co-principals or guarantors of the entity, while some of our difficulties disappear, the pertinent inquiry may be made: Why create a fictitious legal person when in every suit you have to join the partners as co-principals? Are you not merely adding to an already complicated situation, a fictitious person, which has to be constantly considered in all proceedings by or against the partnership?

The most serious practical difficulty, however, in the way of the entity theory is, that, as Mr. Ames admitted, it necessitates the creation of a system for the registration of all partnerships, and a provision that no partnership can exist until it is registered. Any system which prevents a partnership from being in existence until it is registered, and which thus introduces into the law of partnership the difficulties which surround de facto corporations, should not be tolerated for a moment unless the necessity for the adoption of the theory is imperative. No such necessity exists. WILLIAM DRAPER Lewis.

University of Pennsylvania.

THE JURISDICTION OF EQUITY RELATING TO

MULTIPLICITY OF SUITS

One of the classic controversies of the law has long been waged over the rationale and proper application of the doctrine that courts of equity have jurisdiction to restrain actions at law in order to prevent a multiplicity of suits. On the one hand, we have a large body of opinion holding with Professor Pomeroy that the jurisdiction exists in many cases, irrespective of a common interest or title in the subject matter, and irrespective of the right of each individual litigant to resort to equity on other grounds. On the other hand, courts of undoubted respectability have consistently declined to apply the doctrine unless it appeared either that all the parties on one side had some common interest in the matter in dispute, or that the case was essentially one of equitable cognizance. It may be confidently asserted that the alignment follows the familiar line of demarcation that has always separated the devotees of the common law from those who have sympathized with the historic struggle of equity against the rigid rules and formulae of the more ancient system. In other words, the attitude of the advocate for the one theory or the other is referable to his mental attitude toward the common law's boast that it is the perfection of human reason. To those who accept this oft repeated truism as correct, the encroachments of equity upon the preserves of the law have always been looked upon with disfavor if not with alarm. But by those who have come to the conclusion that the principles of the common law are not to be taken too seriously and that for the rigid authority of precedent there should be substituted some standard, grounded in the principles of natural justice as fixed by the enlightened sense of mankind, the advent of equity into the field of jurisprudence was hailed with delight. Naturally, those who look with favor upon the plan of using equity to modify the hardships of the law have welcomed each of its notable advances, and have been ready to seize upon any opportunity to extend its field of influence. On the other hand, those solicitous for the unimpaired authority of the common law, have demanded of equity at each proposed forward step that it justify its action by reference to approved adjudications. Manifestly, no such justification can be shown in every instance, and if it were required there

would be no progress. For every equitable principle was once an innovation, and must have depended for its establishment not upon precedent as declared by the courts but upon the chancellor's conception of natural justice and his view as to the need for reform.

Those who have decried the authority of Professor Pomeroy have found their chief ground of attack in his assertion that the doctrine of his text rests upon the authority of adjudged cases. The able student of the common law, who wrote the opinion of the Mississippi court in the Tribette Case,1 doubtless the leading case in opposition to the Pomeroy doctrine, was able to score heavily against the text of Pomeroy, by showing that many of the cases cited in support of the text could be explained upon principles not at all in harmony with the view that equity would interpose if thereby a multiplicity of actions at law could be avoided, merely because all the suits depend upon the same state of facts and the same principle of law. And so, a large number of courts have implicitly, not to say blindly, followed the lead of the Tribette Case and have given themselves much credit for legal acumen and for diligence in research, because they have been able to demonstrate to their own satisfaction, at least, that the text of Pomeroy is not supported by the citations.

Unfortunately, for the cause of sound interpretation and of constructive judicial legislation, the progress of this controversy, with some praiseworthy exceptions, has been notable for zeal in partisanship rather than for a sincere effort to formulate a rule that squares with the great fundamental principles that underly the system which we call equity. Thus we find that the author of the opinion in the Tribette Case charges Professor Pomeroy with having been betrayed into error in his zeal to maintain a theory. Without taking issue with Judge Campbell upon this point, we think it but fair to say that the advocates of the opposing theory have been equally zealous in maintaining a theory and consequently equally prone to fall into error. It is usually said that Pomeroy has sanctioned the view that courts of equity have jurisdiction on this ground whenever "there is a community of interest merely in the questions of law or of fact involved." If it is meant to say that equity will always take jurisdiction to prevent multiplicity, if the several law actions grow out of the same state of facts and depend upon a single question of law,

170 Miss. 182.