to be cut off by his purchase. It seems to have been the intent to vest in the transferees the whole beneficial interest to which the company had claim, so as to leave nothing which certificates could represent beyond the fund received in exchange, and to so manage the matter that Heydrick could have no interest in that. The trade was not a sale of stock. It was a complete relinquishment of the ultimate capital and property of the company. When it was consummated the "Wolverine Oil Company" had not simply changed its stockholders. It had parted with its estate. It does not appear that anything was left for certificates to represent but the fund taken in exchange. Voorheis, who seems to have been chief negotiator for the company, first reported that he had sold for eighty-four thousand dollars. A slip occurred, however, and he finally got sixty-two thousand dollars in cash and four thousand shares of oil stock, which is probably worthless. He received the money in Pennsylvania, and at once paid over to Peck twelve thousand dollars as for his share. A ter his return, and on the 22d of July, 1855, a meeting of the stockholders and directors of the company was held at Pontiac, at which time Voorheis, Armstrong, Andrews, Morris, Peck, Beardsley, Millis, Smith and the complainant were present. It was there voted by the directors that sixty-two thousand dollars should be divided among the Oakland county stockholders, embracing twenty-one shares. This included the complainant's share. At the same time an assessment was made and paid of four dollars seventy-six cents on each of such twenty-one shares to pay an allowed claim of Boughner. On the 12th of August the directors again met at Pontiac, and allowed several claims against the company, including one to Voorheis for his services and expenses. They also assessed each of the Oakland county shares fifty-two dollars and three cents to defray expenses.

On the 13th of September following, however, another meeting of the stockholders and directors was held, at which time Voorheis, Andrews, Peck (by proxy), Morris, Kellam, Millis, Smith, Spear, Beardsley and complainant were present. On this occasion it was resolved that the doings of the meeting on the 22d of July should be rescinded and held for naught, Morris, Voorheis and complainant resisting. A sim

ilar course was pursued in relation to the proceedings of the meeting of the 12th day of August, Voorheis resisting. At this time a vote of censure was also passed against Voorheis, and he was removed from his office of agent and director. They did not go so far as to return the assessment made and collected on the 22d of July. By these and other movements it became apparent that a controlling number of the associates were determined that the complainant should receive no share of the fund realized by the sale, and at length his right to participation was definitely denied.

In February, 1866, the complainant filed his first bill, but omitted to make Heydrick a party. A demurrer was interposed, and the court sustained the demurrer. The bill was then amended by making Heydrick a party, and was again met by demurrer. This, however, was overruled and all the defendants answered except Heydrick, and the bill as to him was taken as confessed.

We do not consider it necessary to reproduce the matter of the bill, or even to specify the essential parts of it. It proceeds upon the supposition that the complainant and the other associates were, as between themselves, for the purpose of dealing with their community rights, in a court of equity to be considered as partners, and it seeks a winding up of the affairs and an equitable application and appropriation of the effects.

A number of objections were pressed with much earnestness at the hearing. One of them may be here noticed. It was said that the associates were not partners. They certainly had no corporate character, and yet they were embarked in a common undertaking for their common profit, and this common undertaking was sustained, and was agreed to be sustained, by money advanced by each. That their relation and position were such as to justify a court of equity, in order to settle their disputes respecting the distribution of a common fund, to treat them as partners, is a point settled by overwhelming authority. We cite a few of the cases and books bearing on the point: Beaumont v. Meredith, 3 Ves. & Beames, 180; Wallworth v. Holt, 4 Myl. & C. 619; Womersley v. Merrit, L. R. 4 Eq. Cases, 695; Richardson v. Hastings, 7 Beav. 323; S. C., Id. 301; Whitman v. Porter, 107 Mass. 522; Taft v. Ward, 106 Mass. 518; Harper v. Raymond, 3

Bos. 29; Mann v. Butler, 2 Barb. Ch. R 362; Townsend v. Goewey, 19 Wend. 424; Cross v. Jackson, 5 Hill, 478; 3 Kent's Com., p. 26; Story on Part., §§ 76, 77, 164, 213; Burgan v. Lyell, 2 Mich. 102; Clagett v. Kilbourne, 1 Black, 346; Brown v. Curtis, 5 Mason, 421; Adams' Eq., 247, 239, 240; Willard's Eq., Chap. 10; Story's E. J., §§ 1243, 1255, 1256; Brown v. Gilman, 4 Wheat. 255.

In February, 1872, the court made an interlocutory decree adjudging that the associates were partners in interest in the property and effects of the Wolverine Oil Company; that their respective interests were co-extensive with the shares they severally held, and that complainant held one share The decree set forth and declared who were shareholders, and the quantity of interest of each individual; that Heydrick owned and controlled nine shares independently, and governed the interest which they represented, in a manner distinct from the interest represented by the other twenty-one shares, owned in Michigan; that Voorheis, acting as agent for the shareholders, living in Michigan and holding twenty-one shares, sold such shares, with the property they represented, and received a large sum of money and other property, and that the fund so obtained equitably belonged to the complainant and the other Michigan shareholders in the ratio of their shares, and that it ought to be divided among the owners after an adjustment of claims and demands between members and against the company.

The decree then proceeded to refer it to a commissioner to ascertain and report what sales, when, and for what amount, had been made of any of the propert, shares or effects of the company by Voorheis or any of the other defendants except Heydrick, the disposition made of the proceeds, the amount passed over to any of the defendants, and whether Voorheis still had any property of any kind derived from any such sale, and whether there were any, and if so what, debts against the company which ought to be paid out of the fund.

The commissioner made his report under this decretal order on the 22d of November, 1872. He found and reported that on or about the 9th of February, 1865, Voorheis, acting as the agent of the Michigan stockholders, sold certain property belonging to them, and received therefor in cash sixty thousand dollars; that he also received in cash from Heydrick two

thousand dollars, and four thousand shares of stock of the Heydrick Brothers' Oil Company; 'that] at a meeting of the Michigan shareholders, July 22, 1865, they recognized the sum of sixty-two thousand dollars as the amount received in cash by Voorheis as belonging to the Michigan shareholders, including complainant.

The commissioner further found that Voorheis paid to Millis, as company treasurer: for Andrews, eight thousand seven hundred dollars; for Spear, two thousand nine hundred dollars; for Smith, two thousand nine hundred dollars; for Armstrong, two thousand nine hundred dollars; and for Millis himself, eight thousand seven hundred dollars; making twenty-six thousand and one hundred dollars; that he paid to Beardsley, six thousand dollars; to Morris, five thousand five hundred dollars; to Kellam, two thousand nine hundred dollars; to Peck, twelve thousand dollars; to complainant, three hundred dollars; being a total of fifty-two thousand eight hundred dollars, paid over to shareholders. He also found that when Voorheis received this money the company owed him nine hundred and sixteen dollars and nine cents, and were otherwise indebted, as near as could be ascertained, to the amount of one hundred and seventy six dollars and fifty-three cents; that after deducting what was due him for services, Voorheis had in his hands eight thousand two hundred and eighty-three dollars and ninety-one cents, besides the oil stock in Heydrick & Brothers' Oil Company. The commissioner then stated the sum each shareholder was entitled to on the 22d of July, 1865, the over-payments and deficiencies in sums paid, the interest on the different sums, and the rectifications in the distribution which the principles of the decree required.

No objections appear to have been taken before the commissioner to the draft or scheme of his report in any particular, and no exceptions appear to have been filed or suggested to to the final report in the court below. Neither was there any motion to set it aside or refer it back. If not incorrect or in

consistent upon its face it was entitled to great weight. The defendants, if dissatisfied with it, should have excepted or taken some other action appropriate to the objection: Rule 79; Suydam v. Dequindre, Walk. Ch. 23; Dean v. Emerson, 102 Mass. 480; Tyler v. Simmons, 6 Paige, 127; Daubeny

v. Coghlan, 12 Sim. 507; Morgan v. Evans, 3 Clk. & Fin 159, and Am. notes; Mason v. Crosby, 3 Wood. & M. 258; Story v. Livingston, 13 Pet. 359, 375; Harding v. Handy, 11 Wheat. 103, 126. The general rule is that the report of a master, or commissioner acting as master, is received as true when no exception is taken.

The report standing confirmed under the rule, the case came on on the equity reserved, and for further directions, on the 15th, of March, 1873, when the court made a final decree. And it was adjudged that sixty-two thousand dollars, less the debts of the company, found to be one thousand ninety-three dollars and sixty-two cents, should be divided among the holders of the twenty-one shares, including complainant, according to the amounts held by them respectively, and according to the de tailed statement on that subject in the report, and making two thousand nine hundred dollars and thirty cents as the share of complainant; that such sum should be paid to him with interest from July 22, 1865, which would give to him, at the date of the report, three thousand nine hundred and thirty-five dollars and twelve cents as his share of the fund, princi al and interest; that Peck had received three thousand two hundred and ninety-nine dollars and ten cents in excess of his share, and that within sixty days from the date of the decree he should pay into court such excess, with interest from July 22, 1865; that Beardsley had received one hundred and ninetynine dollars and forty cents too much and should refund in like manner; that if such sums, or enough thereof to equal the amount decreed to complainant, should be got into court, the sum going to complainant should be paid to him thereout, and the balance to Voorheis to cover the deficiency of his share; that in the event of a failure to get from Peck and Beardsley enough to pay complainant pursuant to the decree, Voorheis should pay him his quota within the ten days next succeeding the end of the sixty days given them for payinent by the decree; that it not appearing that the four thousand shares of oil stock, obtained and held by Voorheis, possessed any intrinsic value, he must place it in court to await further directions. It was also adjudged that complainant should recover costs against Beardsley, Voorheis, Millis, Andrews, Peck, Morris, Armstrong, Smith, Spear and Kellam, and that the