necessary parties to the action. Dicey on Parties, rule 13, page 104, says: "All the persons with whom a contract is made must join in an action for a breach of it." But in this case the parties sustain such relations to each other as in legal effect makes them partners. No other construction can be given to the contract, and their acts under 631 it, without doing violence to the plainest legal principles. 1 Chitty on Pleading, 13, says: "It is a general rule that, in the case of partners, all the members of the firm should be plaintiffs in an action upon a contract made with the firm; nor can any private arrangement by the firm that one only of the parties shall bring the action, give him the right to sue alone." And Dicey on Parties, page 149, says that this holds good even though the company consist of a hundred perNeither can the action be sustained on the ground that the alleged syndicate is an "unincorporated company” or a “voluntary association." It does not appear that they have done anything to give it the characteristics of such organizations, except to elect officers. So, in whatever view we consider the case, we are unable to see how the plaintiff can maintain this action alone. sons. 2. Had there not been a defect of parties plaintiff, we feel quite well satisfied that this action is properly founded. The contract set out in the complaint and their proceedings under it make the parties thereto partners in legal effect. But it is said one partner cannot sue another upon a demand arising out of partnership transactions. Unquestionably that is the law, but the difficulty is that it has no application to the facts of this case. The cause of action stated is not one growing out of the transactions of the syndicate. It is based upon a direct and positive promise of defendant with all his associates to pay money for a given object. Relying upon these mutual promises, over one hundred and twenty-five thousand dollars has been paid in and devoted to the purpose agreed upon. Defendant has received and retained his interest in the company. Surely, he is in no position to say there must be a dissolution and an accounting before he will pay his just share toward carrying on the proposed enterprise. The books are full of cases sustaining the defendant's liability, and the right of the other parties to compel payment of the amount in default. Cowen, J., in Glover v. Tuck, 24 Wend. 153, 632 says: "When, as in the case before us, the covenant is to make specific advances for the purpose of launching a partnership, I presume the right to an action was never questioned." "The objection that the articles of agreement between plaintiff and defendants constituted a partnership, in consequence of which the plaintiff's remedy lies in a court of equity only, is thus answered by Collyer on Partnership, 132, Perkins' edition, section 245: 'One partner may maintain an action of covenant against his copartner, whether the covenant be to pay any sum or do any act for the purpose of only launching the partnership, or whether it be to perform any of the articles after the partnership has commenced. An action of covenant will lie, although there may be accounts between the parties which require unraveling in equity."" Bates on Partnership lays down a similar rule at section 876: George v. Harris, 4 N. H. 533; 17 Am. Dec. 446; Pillsbury v. Pillsbury, 20 N. H. 90; Collamer v. Foster, 26 Vt. 754; Williams v. Henshaw, 11 Pick. 79; 22 Am. Dec. 366; Sprout v. Crowley, 30 Wis. 187; Lathrop v. Knapp, 27 Wis. 214. This latter case was one in which the facts were quite parallel with the case at bar, and is directly in point on the question of compelling the defendant to contribute as he agreed to. The case of McMahon v. Rauhr, 47 N. Y. 67, so much relied upon by defendant, is really a world wide from the case under consideration. The facts which distinguish it from this case will become apparent from a mere inspection of the case, and it is not necessary to mention them here. The other objections urged to the complaint are purely technical, and cannot be reached by demurrer. If the defendant desires further information as to the times when the installments become due on the land contracts held by the trustee, he can secure it by motion. By the Court. The order of the circuit court is reversed and the case is remanded for further proceedings according to law. PRACTICE-SUIT BY ONE PERSON FOR THE BENEFIT OF MANY.-When suit may be brought by one for the benefit of many: Dewey v. St. Albans Trust Co., 60 Vt. 1; 6 Am. St. Rep. 84; Mannix v. Purcell, 46 Ohio St. 102; 15 Am. St. Rep. 562. When one partner may sue another without making the other partners parties to the action: Vance v. Blair, 18 Ohio, 532; 51 Am. Dec. 467. PARTNERSHIP-WHEN MAY SUE A MEMBER.-An action at law will lie upon a covenant in partnership articles: Duncan v. Lyon, 3 Johns. Ch. 351; 8 Am. Dec. 513: Dana v. Gill, 5 J. J. Marsh. 242; 20 Am. Dec. 255. One partner may sue the other for his share of the profits, during the continuance of the partnership, if the articles thereof provide for a division of profits before its determination: Rondeau v. Pedesclaux, 3 La. 510; 23 Am. Dec. 463. See note to Course v. Prince, 12 Am. Dec. 650. In Kennedy v. McFaddon, 3 Harr. & J. 194, 5 Am. Dec. 434, however, it was held that one partner had no right to sue his copartner at law, to pay his portion of a contribution. One partner cannot recover of another an unliquidated and unsettled balance: Beede v. Fraser, 66 Vt. 114; 44 Am. St. Rep. 824. INDEX TO THE NOTES. ACTION, commencement of, what is, 704. limitation upon time of bringing, whether may be fixed by con- ALIBI, instructions regarding proof of, when erroneous, 562. APPELLATE PROCEDURE, question not raised in trial court ARREST by a private person without warrant, 752. ATTACHMENT, jurisdiction by can only be acquired of property proceedings in are not purely in rem, 113. situs of real property for the purposes of, 113. BASTARDS, adulterine, legitimation of, 786. BUILDING AND LOAN ASSOCIATIONS, insolvency of, obliga CHECKS, acceptance of when tendered as payment in full of a acceptance of when tendered as payment in full of an unliqui- accord and satisfaction, receipt and collection of, when amount liquidated demand cannot be satisfied by the acceptance of protest against receiving as payment in full is unavailing if receiving in full payment of a demand, 347. CHILD, adopted, whether takes legacy of its adopting parent, 757. declarations of husband or wife to prove illegitimacy of, 573. illegitimacy of, though not begotten in wedlock, when cannot illegitimacy of, when born in wedlock cannot be proved by the legitimacy of, though born in wedlock, is presumed though they were begotten before, 572. nonaccess between husband and wife cannot be disproved by |