Page images
PDF
EPUB

Vol. IV.)

HOLLAND V. DRAKE.

[No. 11.

does not injure the creditors, and neither of the partners make any complaint. The partner who was not consulted is the only person who has a right to complain. No one else can, for he alone was injured.

The court will sustain an assignment made by one partner for the benefit of all the creditors. Burrill on Assignments, 42-44, 51.

No one but an absent partner can question the validity of an assignment executed by his copartner. It is not void“ per se,” but only voidable at the election of the absent partner. 4 Washington C. Č. 232; Sheldon v. Smith, 28 Barb. 593 ; 4 N. Y. Digest, 191, 311. As to a subsequent ratification, see 5 Hill, 107; Story on Assign. secs. 239-244.

Admitting that one partner cannot, in law, make such an assignment, yet he might, in view of the fact that the firm was insolvent, file his bill in equity, asking that the firm property might be sold for the benefit of all the creditors. And if he has done what a court of equity would have done, then the court will sustain the act. Prentiss, Baldwin f Ford, for defendants in error:

I. This case, so far as the power of one partner, McKay, is concerned, to make a general assignment of all the personal property of a firm consisting of two partners, does not raise the abstract question of such a power in Ohio, under our law forbidding preferences, and making a ratable and equal distribution ; but if it did, there is very much to be said in favor of such a power. But this case stands upon the following circumstances, differing it from the mere abstract question:

1. The firm was insolvent.

2. An attachment had been got out, of course, for fraud, and that of Tracy, the partner who, it is claimed, did not join in the assignment.

3. Tracy was applied to to join, and assented, but then expressed a wish to see his counsel about it, and after doing so declined, and subsequently deliberately assented again. He never objected to it, and his subsequent express ratification of it made it good from the beginning.

II. Was it a lien or incumbrance plaintiffs in error had after the sheriff gave up the property? The attachment was gone; if plaintiffs had anything, it was an equity, so that a court of chancery could have enforced their remedy, and that court only; and the probate court could not, — the expression lien or incumbrance referring to some plain legal right.

It seems plaintiffs are willing to recognize the assignee, as such, under this assignment, and place the attached property in his hands, giving up the attachment; but they say they have an agreement from him that he will not do his duty, and administer the assignment as the law requires him to do, but do so for their exclusive benefit. No court of equity would admit this as a good title for relief. Again, when the motion to dissolve the second attachment was declared for plaintiffs, they had no subsisting attachment, for it was already dissolved by their own act of giving up the property, and the refusal of the court to dissolve it, on the ground that Tracy was guilty of no fraud, would not give vitality to it. And now plaintiffs call on the probate court to require the assignee to violate his duty as such, — go on and sell the attached property after the sheriff

, has surrendered it, and account to them for the whole of it, because he has promised to do so. Why did not they have the sheriff hold on to it VOL. IV.

31

Vol. IV.)

HOLLAND v. DRAKE.

(No. 11.

if they had a good title? Why did they seek to entrap the assignee into an agreement contrary to his duty, and use him as their mere instrument? The contract and promise were void against public policy, and against the spirit of the statute, and against the rights of the rest of the creditors. And there was no lien or incumbrance, and no remedy, unless to go into a court of equity and move there. Hyde v. Olds, 12 Ohio, 591 ; Story on Part. 322, 327, 328; Hitchcock v. St. John, 1 Hoffm. 511; 1 Hardy, 87; Burrill on Assign. 51, 306, 340; Sheldon v. Smith, 28 Barb. 593; Robinson v. Gregory, 29 Barb. 560.

WELCH, C. J. The important question in the case is, whether one member of an insolvent firm, either before or after dissolution of the partnership, can make a valid assignment of all its effects for the benefit of creditors against the will of a copartner, or without procuring his assent when present or accessible. Until this question is decided in the negative, it is unnecessary to consider the questions whether this firm was dissolved by the published notice, and if so, whether such dissolution had the effect to lessen or take away the power to assign. The important question is, did the power ever exist ?

The authorities and decisions on this subject are quite numerous, and are far from being uniform. It is deemed unnecessary here to attempt a review of them, or to enter into or repeat the reasoning pro and con on which they assume to stand. The leading cases will be found enumerated and referred to in Parsons on Partnership, 165 (notes l, m, n, o), and Story on Partnership, sec. 101, note 2. We have examined these cases with much care and consideration, and think the weight of authority, as well as the better reasoning, is with those who deny the validity of such an assignment. The power to make it is not within the contemplation of an ordinary partnership contract. It is not a power to act as agent of the company in carrying on its business and paying its debts, but a power to appoint an agent and to clothe him with all the powers of the part

If the power exists where there are only two partners, as in the present case, it must also be conceded where there are many. to see that in many such cases it might be exercised to the great injury and annoyance of the non-consenting members of the firm. It is often the case, especially in times of financial depression, that a firm, if forced into liquidation, and their effects sold under the hammer, would prove insolvent, whereas if suffered to struggle on they would become solvent and successful. In such cases a single member, without the concurrence of the creditors, could, by the exercise of the power in question, bring it to an end, and place all its interests in the hands of a trustee of his own selecting; or, by threatening to exercise the power, he could compel his copartners to submit to unjust terms of forbearance. True, he might, in the absence of such a power, where the terms of the partnership did not forbid it, by a proceeding in equity dissolve the firm and place its assets in the hands of a receiver. But in that case the receiver would be chosen and appointed by the court, and not by the partner, and the other members of the firm would be consulted and heard. We think the safer and juster rule is to require the assent of all the partners, either actually given or to be fairly implied from the situation of the parties, or from the manner of conducting the business of the firm.

ners.

It is easy

Vol. IV.)

HOLLAND v. DRAKE.

(No. 11.

But it is claimed that the assignment took effect from the date of its execution by McKay, because its subsequent approval by Tracy related back and took effect from the date of its execution, which was prior to the attachment. As between the partners, and as between them and third persons who acquired no new rights in the mean time, this is undoubtedly true. Such is the well settled law in all cases of volunteer agencies. It is equally well settled, however, that it cannot have effect so as to defeat the rights of third persons bona fide acquired in the mean time. A contrary rule of law would be calculated to work manifest injustice. Take the present case for an example. Holland and Pettitt

. levied their attachment while the assignment remained in abeyance. It might never be confirmed by Tracy. With him alone rested the power to give it effect or to defeat it. If Holland and Pettitt dismissed their attachment, Tracy might fail to affirm the assignment, and they would lose their lien if they persisted in their attachment proceedings. Tracy might affirm the assignment, and they would be left to pay their costs. They would thus be placed completely within Tracy's power, and their rights be made to depend on his will or caprice. Such is not the law. The assignment took effect from the date of its execution, but not so as to affect the rights acquired by the intervening attachment. The question, therefore, whether the assignment is to be regarded as taking effect from the time when it was delivered to the probate court, or from the time of its actual acceptance by the assignee, becomes immaterial. It is enough that the attachment was levied before the confirmation by Tracy.

It is also claimed that the lien of the attachment was lost by the agreement under which the property was delivered to the assignee by the sheriff. We are of opinion that the parties are estopped by their agreement from setting up any such defence. The property was given into the hands of the assignee on the faith of the agreement. But for the agreement it would have been retained and sold by the sheriff. To allow this defence would be to aid the defendants in practising a fraud upon the plaintiffs.

A further claim made by the defendants in error is that the proper parties were not before the court; that the creditors of the firm, as well as the assignee, should have been made parties defendant. We think otherwise. The assignee, like an executor or administrator, is an officer recognized by the law, and whose duties and qualifications are regulated by law, and he fully represents the creditors in such cases.

The judgment of the common pleas and probate courts must be reversed, and the cause remanded to the probate court for further proceedings.

[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

Where a sentence not authorized by law has been imposed upon a prisoner, the court

of appeals can only reverse the judgment; it has no power to impose the proper sentence, or to remand the case to the court of original jurisdiction for that purpose. Where the accused was illegally sentenced and judginent reversed on this ground by

the appellate court; held, that the accused could not be again tried for the same offence.

[ocr errors]

APPEAL from the criminal court for Baltimore city.
The case is stated in the opinion of the court.

The cause was argued before Bowie, Stewart, Miller, and Alvey, JJ., on the part of the appellant, and submitted on brief on the part of the state.

John P. Poe, for the appellant.
The Attorney General, Gwinn, contra.

MILLER, J., delivered the opinion of the court. The plaintiff in error was indicted for murder, and on his trial was found guilty of manslaughter and not guilty of murder. Upon this verdict the criminal court of Baltimore city, in which he was tried, pronounced judgment, sentencing him to “ five years' imprisonment in the jail of Baltimore city,” and this judg

. ment is brought before us for review by writ of error.

The punishment prescribed by law (Act of 1864, ch. 39) for the crime of manslaughter is confinement in the penitentiary for not more than ten years, or in the discretion of the court a fine of not more than five hundred dollars, or imprisonment in jail for not more than two years, or both fine and imprisonment in jail. The attorney general admits that through inadvertence a sentence was imposed on the prisoner which the law does not authorize, and concedes upon the authority of Watkins v. The State, 14 Md. 412, this judgment must be reversed. That is undoubtedly so, and the only other question we can now decide is, whether upon such reversal this court has the power to impose the proper sentence or to remand the case to the court of original jurisdiction for that purpose. In the absence of legislation conferring that authority upon this court, it is clear it has no power to do either of these things. In Watkins v. The State, where the judgment was reversed for a similar defect, the court say: “ The effect of the reversal for error in the judgment itself is properly stated by the counsel for the plaintiff in error in his argument. It defeats all former proceedings in the cause. This will abundantly appear by reference to the following authorites cited by him on this point : 1 Chitty's Cr. Law, 755; 4 Blackstone's Com. 393; Hawkins, book 2, ch. 50, sec. 19.” In addition to these authorities we refer to several more recent de1 The decision announced in the second paragraph of the syllabus was made by the trial court.

EDITOR.

Vol. IV.]

McDonaLD V. THE STATE.

(No. 11.

[ocr errors]

cisions of the English and Irish courts upon the subject, viz. : Rex v. Ellis, 5 Barn. & Cress. 395; King v. Bourne, 7 Adol. & Ellis, 58; Silversides v. The Queen, 2 Gale & Davison, 617, and Holland v. The Queen, 2 Jebb & Symes, 357. In each of these, and especially in the first two, it was, upon full review of all previous decisions, denied that a court of error had

any power in a case like this, either to remand the record to the court below for the proper judgment, or itself to pronounce such judgment as the law authorized; and Rex v. Kenworthy, 1 Barn. & Cress. 711, which was cited in support of the power to remand, is there shown to be a case in which no judgment had in fact been given, and it was therefore remitted back to the sessions in order that a judgment might be rendered. In this country, also, the decisions, wherever the question has arisen, are almost uniform and to the same effect. It was so decided in several cases by the supreme court of Massachusetts, and we need refer only to Christian v. The Commonwealth, 5 Met. 530. After these decisions the legislature of that state provided by statute, that " whenever a final judgment in any criminal case shall be reversed by the supreme judicial court, upon a writ of error, on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before whom the conviction was had,” and the supreme court of that state has since acted under that statute. Jacquins v. The Commonwealth, 9 Cush, 279.

In New York there is a series of cases in the inferior courts to the like effect, and in Ratzky v. The People, 29 New York, 124, the court of appeals of that state held it to be well settled law, that but for the authority conferred upon that court by the statute of 1863, it would have no power, upon reversal of the judgment of the supreme court in that case for error in the judgment itself, either to pronounce the appropriate judgment, or remit the record to the oyer and terminer, to give such judgment. The statute referred to declared in effect, that the appellate court shall have power upon any writ of error, when it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the appellate court shall direct. There are also numerous cases in other states where the same question has been incidentally decided in the same way.

In Ex parte Lange, 18 Wallace, 163, the judges of the supreme court of the United States, though differing upon other points, agree in the proposition, that apart from authority conferred by the legislature, appellate tribunals have only the power of reversal where in criminal cases the judgments are entire and not such as the law authorizes to be imposed, and all the cases on the subject are collected and referred to in the dissenting opinion of Mr. Justice Clifford in that case.

We have been able to find but two cases which are in even seeming conflict with the great weight and current of judicial precedent and authority on this question.

One of these is the case of Kelly v. The State, 3 Sm. & Mar. 518, decided by the high court of errors and appeals in Mississippi, in 1841. There the judgment was reversed for two reasons: 1st, because it did not appear in the record that the prisoners were personally in court at the time of pronouncing the sentence; and 2d, because tho sentence did not

« PreviousContinue »