soon after age is view not conclu will exam by the courts, with a watchful, and even a jealous eye. In the guardian settlement of an account of fifteen or sixteen years standing, his ward during which large sums had been received, and while the ward was out of health, and impatient to obtain possession of his ed with jeal property, to enable him to seek a better climate for his health, I ousy; and a receipt so think he ought not to be held, if he received less than his right. obtained is The receipt signed by him, ought not to stand in the place of a sive, and new settlement in the orphan's court. An interest account is the court raised on the basis of the guardian's own receipts and payments, ine the inter as exhibited in his own account. The principle adopted by the est account. auditors, was to strike a balance of the money in the hands of the guardian, at the end of every six months, and to charge him with simple interest upon that; making an allowance, however, of a thousand dollars for contingent expenses. The court held, that this rule was neither unjust or severe, whether the money was used by the guardian, or negligently retained by him. How the fact was did not appear. The guardian only could show what became of it. "Show us that the money was lying dead, and we give up the interest." The books of the guardian are the proper sources of such testimony. The commissions should be deducted at the time the services were rendered. 15. ENGLISH V. HARVY, 2 Rawle's Penn. Rep. 305. however, In this case the testator directed a large sum to be put out at It is said, interest, on good security, for the benefit of a legatee; out of the that the interest of which, the legatee was to have his support and edu- court never cation, during his minority. The court held, that the trustee was only liable for the interest which he receives, or which he neglects to receive, but not for compound interest. allows com pound inter est in Penn sylvania. 16. SCHIEFFLIN V. STEWART, 1 Johns. Ch. Rep. 620. The allow est is often in to effect the The administrator had received large sums of money belong- ance of com ing to the estate, and which he had mingled with his own, using pound inter part of it in his business and loaning the residue to others. The necessary master allowed him about twenty-two months for the settlement to carry of the estate without interest; and after that, calculated inter- principle of est at the end of the first year, and added it to the principal, that the and on the aggregate cast interest for another year, and so on. trustee shall Exceptions being taken to this report of the master, Chan gain to him cellor Kent said: The only real question in the case is, whether trust funds, selt by the VOL. VII. 26 the court make no the compound interest be proper. No just complaint can be made of the time from which the computation of interest began. It was the duty of the plaintiff, from that time forward, to have made distribution of the assets, or placed them in a situation to be productive, and to accumulate for the heirs. He did neither, but employed the money in his own business or trade, or in making loans for his own benefit, and as he has not disclosed, as he might have done, to the master, what were the profits of the assets so employed, it appears to me as well on principle as authority, that he is justly chargeable with the interest contained in the report. The only way for the plaintiff to avoid this conclusion was, by fairly disclosing what he made by the use of the money. It is certain that the allowance of compound interest is often essential to carry into complete effect the principle of the court, that no profit, gain or advantage, shall be derived to the trustee from his use of the trust funds. All the gain must go to the cestui que trust. This is the true equity doctrine. It secures fidelity and removes temptation; and it is the ground of the allowance of annual rests in taking the account where the executor has used the property, and does not disclose the proceeds. 17. The execu tor in Pern. with the in SAY V. BARNES, 4 Serg. & Rawl. Rep. 112; FINDLEY V. SMITH, 7 ib. 264. In the latter case, Tilghman, C. J. said, in respect to the setis charged tlement of an executor's account: In general, the rule adopted terest he by this court, is to charge the executor with such interest as he has made or has made, or with due diligence might have made, from the momight have made. ney in his hands. In Say v. Barnes, the accounts of a guardian had been referred to auditors, who struck a balance in the account at the end of every six months, and charging the guardian with interest on the balance then due to the time of hearing; and crediting him on the same principle, when any balance appeared to be due to him; and allowing him one thousand dollars for contingent expenses. On appeal from the orphan's court, Tilghman, C. J. said: The governing principle of the auditors was to strike a balance of the money in the hands of the guardian, at the end of every six months and to charge him with simple interest upon that, making an allowance of $1000 for contingent expenses. This rule does not work unjustly or severely, whether the money was really used by the guardian or negligently retained by him. How the fact is, we are ignorant. But it must not be forgot that no one but he who had the mo ney can show what became of it. It is objected that this rule is unjust, because it might often happen that good investments could not be obtained in the course of six months. The answer is fair. Show us that the money was really lying dead, and we give up the interest. This, the counsel for the appellee declared in court: and as most people keep their money in bank, there can be little difficulty in showing what sums remained unemployed, and for what length of time. Has he been charged for too long a time? Considering the state of business in this city, during the time this money was received, and in the absence of all testimony which informs us of the exact truth; considering too, that the books of the guardian are the proper sources of such testimony, I am of opinion that the rule adopted by the auditors is neither unjust nor severe, 18. WYMAN V. HUBBARD, ET AL. 13 Mass. Rep. 232; STEARNS, will be evi dence from Executors or administrators in Massachusetts, are not charge- And delay in settling able with interest, unless they have used the money in their accounts hands. But delay in settling their accounts will be a circumstance from which it may justly be inferred they have used the which to in money; and they may be compelled to answer interrogatories trustee has touching the use and profit of such money. 19. FAY, JUDGE, V. Howe, 1 Pick. Mass. Rep. 527; ROBBINS, JUDGE V. HAYWARD, ET AL., cited, ib. 528. fer that the used the money. the sum re the trustee interest, yet In the case of a guardian, the court held, that the common And where rule of interest should not be departed from, except in cases ceived is so where the trustee has been guilty of gross neglect in making the large that most of the property of his ward. But where the guardian had should have received, periodically, large sums of money, being rents and in- put it out at come from public stocks, and had settled no accounts for many his neglect years, the court, in settling his account, directed rests at the co end of each year, including principal and interest, and the bal- take rests ance thus struck, to be carried forward to be again on interest. of the year, And $500 was held to be large enough to subject the trustee to in settling this charge. ed it, the court will at the end the account. A trustee A trustee, who has property for security, and is obliged to ad- who is oblig ed to re deem prop vance money to protect it, is to be allowed interest at the comerty and ad pound rate, making annual rests, and carrying the interest into vance mon the principal, so that he may receive interest upon interest on all sums paid by him to redeem the property from prior pledges, and other expenses incident. ey is to be allowed compound interest; and ought not to sus less he is guilty of fraud, &c. Parker, C. J. In cases of trusts, created for the benefit of intain loss un fants and such as are incapable of taking care of themselves, the trustee is held to exceeding strict rules. Doubtful points are to be decided against him, losses thrown upon him, and gains taken from him. But it is otherwise, where the grantor is capafants, he is ble of taking care of himself, and conveys an estate to pay strict rules debts; for, then, these strict rules do not apply; and nothing but fraud or gross negligence ought to bur a loss. but in re spect to in held to the trustee with Partners and Partnership. I. DEFINITION OF, p. 204. II. HOW CREATED, p. 210. III. OF PARTNERSHIP PROPERTY, p. 211. IV. OF THE AUTHORITY OF ONE PARTNER TO (A) BY BILLS OR NOTES, P. 213. (B) BY DEED, p. 218. (C) BY ACTS GENERALLY, p. 220. V. OF THE REMEDIES BETWEEN PARTNERS, p. 225. VI. BY PARTNERS AGAINST THIRD PERSONS, p. 229. VII. BY THIRD PERSONS AGAINST PARTNERS, p. 230. VIII. OF DORMANT AND OUTGOING PARTNERS, p. 233. IX. OF THE DISSOLUTION OF THE PARTNERSHIP, p. 236. It is a volun tary associa tion. I. DEFINITION OF. 1. MIDDLETOWN BANK V. MAGILL, ET AL. 5 Conn. Rep. 49; 1 Wend. N. Y. Rep. 457; BURCHETT, ET AL. V. BoLo Per Cur. Hosmer, C. J. A partnership is a voluntary association of individuals, to prosecute some business jointly with an agreement to share in the gains received, and to bear a proportion of the loss sustained. He must have an interest both in the profits and loss. It is a voluntary contract between two or more persons for joining together their money, goods, or labor, upon an agreement that the gain or loss shall be divided proportionably. 2. munity of and a shar POST V. KIMBERLY, March T. 1812, 9 Johns. Rep. 470; DOAK v. SWAN, 8 Greenl. Me. Rep. 170; Brown v. Cook, 3 N. H. Rep. 64; CRUMPSTON V. M'NAIR, 1 Wend. Rep. 463. Per Cur. Spencer, J. A partnership is defined to be a com- It is a com munity of interest between two or more, and a sharing of profit interests, and loss. It is a voluntary association of two or more persons, ing of pro in sharing the profits and bearing the losses of a general trade fits and or a specific adventure. There may be special partnerships, which are formed for a particular concern in a single dealing or adventure. Two merchants may join in sending out a cargo of goods to a foreign country; as to this adventure, they have all the rights, and are subject to all the liabilities of partners, but the relationship of partners ceases with it, and at no time extends to other concerns. loss.* 3. ASPINWALL V. WILLIAMS, 1 Ham. Rep. 60; Ohio Cond. Rep. 39; PITKIN V. PITKIN, 7 Conn. Rep. 307; PURDY, ET tute a part communion tween the Per Cur. Burnet, J. What is a partnership? A partnership To consti is defined to be, a contract of an association by which two or nership a more contribute money, goods or labor, to the end that the pro- of profit and fits may be rateably divided between them; 1 Com. on Conts. loss be 286. This definition as far as it goes, is said to be unexcep- partics is es tionable; but it is incomplete as to third persons, between whom sential. and the parties the question most frequently arises. In this respect it is observed, that he who shares in the profits, ought to bear his proportion of the losses; because by taking the profits, he takes the fund on which the creditor relies for payment. In order to constitute a partnership, so as to make a person liable * An agreement between two or more persons to participate in the profits growing out of a speculation, and that each shall bear a portion of the loss, is a partnership: Cheap v. Cramand, 4 B. & A. 663. But it would be different if one of the parties was to bear no portion of the losses; Moore v. Wilson, 4 T. R. 353. So an agent paid out of the profits of an adventure is not a partner; Meyer v. Sharpe, 5 Tann. 74; Jackson v. Anderson, 4 Taun. 26; Hasketh v. Blankard. 4 East. 144. |