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“Such legislation, course, either is or is not in- the Cherokee nation of Indians, in the tenth article of consistent with the treaty which the Government has which it was provided that "every Cherokee and every made with Russia. If it is not inconsistent with it, then, of course, no question would arise here.

freed person resident in the Cherokee nation shall But if it be inconsistent (and that must be the ground

have the right to sell any products of his farm, includupon which the plaintiffs proceed here), then we are led

ing his or her live-stock, or any merchandise or manuto this inquiry : Is the force and effect of an act of legis- factured products, and to ship and drive the same to lation, distinct and unqualified in its terms, and plain market without restraint, paying any tax thereon in its meaning, valid if it be found that it violates or which is now or may be levied by the United States on is inconsistent with a prior treaty of the United States with a foreign nation?”.

the quantity sold outside the Indian Teritory." 14 U.

S. Stat. at Large, 799. In answer to this question the Judge further said:

Section 107 of the Internal Revenue Act of July 20, “I understand it to be conceded, and if it be not, I 1868, provides “that the interual revenue laws imposshould be constrained to hold that the legislative de- ing taxes on distilled spirits, fermented liquors, topartment of this Government may pass any law it bacco, snuff and cigars, shall be held and construed to pleases (if it be otherwise constitutional), notwithstanding it conflicts, and notwithstanding to whatever

extend to such articles produced anywhere within the degree, greater or less, it conflicts with an existing exterior boundaries of the United States, whether the treaty with a foreign nation. * I speak now of

same shall be within a collection district or not.” 15 the question of power. * If then Congress, by U. S. Stat. at Large, 167. legislation inconsistent with a treaty, creates a rule of In The Cherokee Tobacco Case, 11 Wall. 616, the quesconduct for its citizens, a rule for the guidance of its tion before the Supreme Court of the United States courts, the only question is: Has it enacted a law

was whether the above section of the law of 1868 which operates to aunul or operates in disregard of the provisions of a treaty? As I before observed, if this

repealed the tenth article of the treaty of 1866, beact does neither then there is no question here. If it tween the United States and the (herokee Indians, or does either or both, then it seems to me within the whether this section of the law was rendered null and constitutional power of Congress.

* They

void by the treaty. Mr. Justice Swayne, in stating [Congress) may render it (a treaty) inoperative by

the opinion of the court, assumed that Congress has legislation in contradiction of its terms, without formal allusion at all to the treaty, and generally they

power to extend the operation of United States law may legislate as if no such treaty existed in modifica

into the Indian Territory, and that such was its purpose tion or alteration of what by force of the treaty has in respect to the items specified in the act of July 20, been the law heretofore, thus modifying the law of the 1868. To the objection that the act is in conflict land without denying the existence of the treaty or with the prior treaty of 1866, he replied: the obligations thereof between the two governments as a contract, and answer therefor to such foreign gov- “Undoubtedly, one or the other must yield. The ernment, or meet its reclamation or retaliation, as may repugnancy is clear, and they cannot stand together. be necessary.

** It need hardly be said that a treaty cannot The case of Taylor et al. v. Morton, 2 Curtis, 454, was

change the Constitution, or be valid if it be in viola

tion of that instrument. This results from the nature that of an action brought against the collector of the

and fundamental privciples of our Government. The port of Boston, to recover a portion of the duties ex- effect of treaties and acts of Congress, when in conflict, acted under the Tariff Act of 1842, on the ground that is not settled by the Constitution. But the question is the act was in conflict with the commercial treaty of not involved in any doubt as to its proper solution. A 1832 between the United States and Russia. Mr. Jus

treaty may supersede a prior act of Congress, and an tice Curtis said: “If an act of Congress should levy a

act of Congress may supersede a prior treaty." duty upon imports which an existing commercial treaty The court sustained the law, and referred approvdeclares shall not be levied, so that the treaty is in ingly to the cases of Foster v. Neilson, The Clinton conflict with the act, does the former or the latter give Bridge, and Taylor et al. v. Morton, supra, as cases in the rule of decision in a judicial tribunal of the United which these principles had been applied. States, in a case to which one rule or the other must be

The obligations of the Government to the foreign applied ?" After quoting the clause of the Coustitu- nation whose interests or rights may be affected by tion which defines "the supreme law of the land,” he legislation inconsistent with a prior treaty form an inproceeded to say:

ternational question entirely distinct from the char“There is nothing in the language of this clause acter and operation of the treaty as a municipal law which enables me to say that in the case supposed the within the United States; and with this question treaty, and not the act of Congress, is to afford the courts have nothing to do. The treaty contract being rule. Ordinarily, treaties are not rules prescribed by

thus violated or set aside, it devolves upon the political sovereigns for the conduct of their subjects, but contracts by which they are to regulate their own con

department of the Government to meet whatever duct. This provision has made treaties a part of our

issue may arise therefrom. The law of nations does municipal law. But it has not assigued to them any not require that treaties shall possess the character of particular degree of authority in our municipal law, municipal laws. This is a peculiarity of our own Connor decided whether laws so enacted shall or shall not

stitution for special and local reasons; and hence, it be paramount to laws otherwise enacted. * * refuse to execute a treaty for reasons which approve

the Constitution were so amended as to dispossess themselves to the conscientious judgment of the na

treaties of this character, the change would furnish tion is a matter of the utmost gravity and delicacy; foreign nations with no just ground of complaint. It but the power to do so is prerogative, of which no na- is enough for them that the Government preserves its tion can be deprived without deeply affecting its inde- treaty faith with them, and whether this is done by pendence. That the people of the United States have

making treaties a part of “the supreme law of the deprived their Government of this power in any case I do not believe. That it must reside somewhere, and

land" or not, is a question that belongs exclusively to be applicable to all cases, I am convinced. I feel no

the people of the United States. Foreign nations have doubt that it belongs to Congress.

* Legisla- nothing to do with this question. tive power is applicable to such laws (treaties) when- The fact that treaties are a part of our supreme ever they relate to subjects which the Constitution has municipal law, and that the legislation of Congress is placed under that legislative power."

another part of the same law, and that the two do not Mr. Justice Curtis, in this case, sustained the law of come into existence by the same agency, implies in the Congress, notwithstanding its conflict with the treaty, political system of the United States two distinct lawand to the extent of the conflict held the latter as a making and law-repealing powers. The President, law to be repealed by the former.

with the advice and consent of the Senate, can, by In 1866 the United States concluded a treaty with making a treaty, indirectly enact a supreme law bind.

* To

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ing upon courts; and so also Congress, by legislation power vested in the President and the Senate, or the within the scope of its powers, can directly enact a su- exercise of the legislative powers vested in Congress. preme law equally binding upon courts. Such a law The question considered in this article is not when may be enacted in either way, and according to the or for what reasons Congress should exercise the authorities above cited, it may be modified or repealed power of modifying or repealing treaties, either diin either way. The authority is that of the people of rectly or indirectly, or when or for what reasons the the United States, and equally so whether exercised in President and Senate should make treaties inconsistone form or the other."

ent with an existing law of Congress, but rather what The President and the Senate cannot set aside or is the legal effect when legislation is inconsistent with modify a law, established through the medium a prior treaty, or a treaty is inconsistent with prior of a treaty, except by making another treaty abro- legislation. The authorities above cited answer this gating or changing the former one. To this process question in both of its aspects. ' A treaty,'' says Mr. the foreign nation would be a contracting party, and Justice Swayne in The Cherokee Tobacco Case, supra, without its consent the result could not be gained may supersede a prior act of Congress, and an act of through a treaty, however urgent might be the neces- Congress may supersede a prior treaty.” Neither can sity. If then Congress could not legislatively modify supersede the Contitution, and either, if acting within or repeal a treaty as the law of the land, and hence as its constitutional limits, may supersede the other. In the rule for courts, there would be no escape from its the case of conflict between the two the last expresprovisions under any circumstances, except with the sion of sovereign authority is the one that prevails. consent of the foreign government with which the treaty was made. Surely, the people of the United States cannot accept such a consequence. No inde

ADMINISTRATION UPON ESTATE OF LIV. pendent pation can accept it

ING PERSON VOID.
Attorney-General Crittenden, 5 Op. Att:-Gen. 345,
Fery justly observes: “The supreme political and leg-

TENNESSEE SUPREME COURT, APRIL, 1880. islative power of this country is placed in the hands of the Government of the United States, under the Con

D'ARUSMONT V. JONES. stitution, and its acts are uncontrollable, except only by tbat Constitution, and that Constitution does not

Under a statute authorizing administration upon the estat es

of deceased persons, held, that the probate court is say that Congress shall pass no law inconsistent with a

without authority to issue letters of administration treaty, and it would have been a strange anomaly if it upon the estate of a living person, and its acts in doing had imposed any such prohibition. There may be so will be wholly void. cases of treaties so injurious, or which may become so

HILL by Sylva D'Arusmont and duty of the Government to renounce and disregard them. Every government must judge and deter

pear in the opinion. mine for itself the proper occasion for the exercise of MCFARLAND, J. The question in this case is the such power; and such a power, I suppose, is impliedly validity of an administration upon the estate of a livreserved by every party to a treaty, and I hope and be- ing person. lieve belongs inalienably to the Government of the The complainant files this bill to have satisfaction United States. It is true that such a power may be of four notes of $1,000 each, executed to her by Wm. abused; so may the treaty-making power and all other C. Harrison on the 15th January, 1861, and secured by powers."

a deed of trust on a tract of land in Shelby county, The fact that a treaty is declared to be a part of “the which she on that day had sold and conveyed to said supreme law of the land," furnishes no objection to Harrison. this conclusion as to the modifying or repealing power She states that soon after the date of said transacof Congress. The truth is that with the exception of tion she left the State of Tennessee and resided for the Constitution itself, there is no supreme law of the several years in the States of the North, and afterward land which excludes the power of the President and in Europe, returning to this State shortly before tho the Senate to change it by a treaty, if exercising this filing of this bill, 25th April, 1874. Upon her return power within its proper limits, or which excludes the she discovered that during her absence, to wit, on the power of Congress to change it, if legislating within 10th of August, 1869, the d endant, David Whitly, had the scope of its constitutional powers. The attribute | procured letters of administration upon the estate of supremacy attached to the result of the action does from the county court of Shelby county, upon the prenot preclude future action changing that result. Con- text that she was dead, and as such administrator bad gress, within the sphere of its powers, may legislate as filed a bill in the Chaucery Court of said county against if no treaty existed; and so the President and the the personal representatives and devisees of said HarSenate, subject to the limits fixed by the Constitution, rison, who had died, and the heir of the trustee in the may make treaties as if no legislation existed. The deed of trust (who had also died) to have satisfaction treaty power and the legislative power are within their of said uotes, alleging that they had been lost or constitutional scope independent of each other, and mislaid. neither is derived from or superior to the other. By The cause was compromised, and a decree rendered either the law of the land may be changed. The su- in favor of said Whitly for $3,500, upon condition that premacy of this law, while existing, is not at all incon- he execute a bond with sureties to indemnify the estate sistent with its modification or repeal by the authority of said Harrison, or the devisees of said land, to the provided for in the Constitution.

extent of said sum of $3,500, against all claim that Chancellor Kent overstates the matter when he says: might be set up by complainant, if alive, or by any * All treaties made by that power [the treaty power] | assignee of said note. The bond was executed and become of absolute efficacy, because they are the su- the money paid. The prayer of the bill is to have satpreme law of the land.” Com. (3d ed.) vol. 1, p. 166. isfaction of the notes out of the trust property, but The laws of Congress are also the supreme law of the that Whitly and his sureties be held liable upon his land, as much so as treaties, and yet they are not of aforesaid bond to the extent of the penalty thereof, in "absolute efficacy," as against the power of treaties or exoneration of the land. It is conceded that the that of Congress to change them. The rank of su- material allegations of the bill have been established,

premacy in both cases is just equal; but in neither but it is maintained that Whitly acted in good faith, does it exclude or impair the exercise of the treaty and with due caution, upon the belief that complain,

[graphic]

occur.

ant was in fact dead, a belief justified by the fact that upon the fact of seven years' absence without being she had been absent for more than seven years, and the heard from, and the hardship of requiring a debtor, most diligent inquiries among her friends and acquaint- who has recognized an administrator appointed under ances could discover no trace of her. And it is in- such circumstances, liable to a second payment seems, sisted for the defendants that the administration of peculiarly pointed. Whitly should be held so far valid as to constitute a It must, however, be iu principle immaterial what protection to the innocent parties who, in good faith, the proof of death may be as to the effect of the judgpaid to him money due the complainant. A similar ment. Whether the court find or assume the fact of case has never before arisen in this State so far as we death upon proof of seven years' absence, or upon tesknow. It is a question that has recently attracted timony of witnesses directly to the point, the question some attention. Previous to the decision of the Court must be the same, that is to say, it is the finding or of Appeals of New York, in 1875, in the case of Rodri- assumption of the fact of death by the probate court, gas v. East River Savings Institution, 63 N. Y. 460, it conclusive until revoked by the same court, or reversed seems not to have been doubted that such an adminis- on appeal, for we have no statutes authorizing admintration would be absolutely void. Chief Justice Mar- istration to be granted upon proof of seven years' shall said such an act, “all will admit, is totally void" absence without being heard from. It is simply a com(Griffith v. Frazier, 8 Cranch, 9), and there are numerous mon-law rule of evidence, and it has no more force dicta and several decisions to the same effect. Pinson than any other evidence that may turn out to be un. v. Ivey, 1 Yer. 306; Allen v. Dundas, 3 Tenn. 125 ; true; administration granted upon such evidence is no Wilson v. Frazier, 2 Humph. 30; Jochumsen v. Suffolk more lawful than if granted upon false testimony of Bank, 3 Allen, 87; 2 Taylor on Evidence, ss 1490 and witnesses. It may be the misfortune of the parties in 1523.

interest in either case, that for the time being they are The case in 63 N. Y., before referred to, raised the unable to show the real truth. In such a case there is direct question. Administration had been granted real hardship in requiring a debtor to pay the second upon the estate of one who had been absent, and not time, but such is always the effect of holding, as courts heard from for more than seven years, and money col- are often compelled to do, that former judgments have lected from his debtor. It turned out that he was not bcen rendered without jurisdiction. in fact dead, and the question was whether the pay- The defendants in this case were unable to defeat the ment made by the debtor was a protection against a demand of Whitly, because they were unfortunately sound demand. The judges were divided in opinion unable to prove the real truth - such misfortunes - four to three — the majority holding the payment a

The hardship to the debtor cannot be regarded protection.

greater than to hold the creditor bound by an adminThe decision has been severely criticised by Judge | istration of his estate in his life-time. To deprive him Redfield in 15 American Law Register. It is fair, how- of his property and rights by a proceeding of this charever, to say, that the opinions present that side of the acter, to which by no sort of construction can be be question with all its force, and show that at least regarded as a party, is violation of first principles. It something may be said in its favor. The argument is said, however, that it is the fault of the supposed may be briefly stated thus: Upon proof of death the decedent in remaining absent for seven years without surrogate was compelled to act and grant administra- communicating with friends that gives rise to the pretion-proof of seven years' absence without being sumption of death, and causes the injury, and he heard from was prima facie evidence of death which ought, therefore, to be bound by his own acts. The the surrogate might be uuable to rebut, and therefore seven years' absence may be willful, or it may be the he was compelled to act and grant the letters of admin- result of insanity, imprisonment or other misfortuue. istration-armed with these letters the administrator The failure of friends and acquaintances to be informed could demand payment, and the debtor could not re- as to the residence of the absent one, or that he still sist, and therefore it being a payment compelled by lives, may be the result of accident or other cause. In law, the debtor ought to be protected, especially as it what cases the conduct of a person in remaining is the act of the supposed decedent in remaining absent, and conniving at the acts of a pretending adabsent without communicating with his friends for ministrator, should be held fraudulent and an estoppel, more than seven years that causes the injury, and cou- it is unnecessary to inquire, as such is not the present sequently be, rather than the debtor, ought to suffer. The decision, however, was to some extent placed upon Whitly, to whom administration was granted as next the statutes of New York, which were assumed to be of kin, turns out to be in no wise related to complainpeculiar in this respect that is to say, before admin- ant, and she could not have anticipated such a proceedistration can be granted the fact of the person dying ing, or be held to have connived at it by remaining intestate shall be proven to the satisfactiou of the sur- absent. rogate, who shall examine the person applying touch- A debtor in a case like the present could always ing the time, place and manner of the death, and may obtain the indemnity which in this case was obtained examine any other person, and for that purpose com- by applying to a Court of Chancery, that is, a bond of pel their attendance as witnesses. While it is conceded indemnity against the contingency of the creditor rethat in general the finding by the court of the fact turning alive-an indemnity that perhaps ought to be upon which the jurisdiction depends is not conclusive provided by statute, and there could be no more bardof the jurisdiction, yet it is maintained that as in this ship in requiring the debtor to look to such a bond for instance the court was required to hear evidence and indemnity than in requiring the creditor to do so. The determine the facts, the determination must be con- money, when thus paid, should be recovered back clusive until revoked, so far as concerns third persons either by the debtor who had paid it, or by the creditor who had acted upon the faith thereof.

who returns alive; and if the security of the bond It does not seem clear that an administration granted fail, it would be as great a hardship, to say the least of under such a statute would in this respect be different it, to require the creditor to lose it as to throw the loss from administration granted under a statute simply upon the debtor. authorizing the granting of administration upon the Therefore the question of hardship is out of the way. estates of deceased persons, but it is unnecessary in and the fact that the administration was granted upon the present case to pursue this branch of the inquiry. proof of seven years' absence forms no exception to the The force of the argument in favor of the validity of general rule - and we return to the question whether the administration seems to apply especially to a case administration upon the estate of a living person is of this character, where the assumption of death rests valid. Has a probate court, under our statute, juris

case.

diction to grant administration otherwise than upon demnation was granted in two different counties about the estates of deceased persons? Our statutes have the same time. Judge Reese said the letters granted not the supposed peculiarity of the statutes of New in the county other than the county of the intestate's York; they simply authorize administration upon the residence were void; other similar cases are referred estates of deceased persons, and if the person be not to in the case of Jochumsen v. Savings Bank, 3 Allen, dead, the court would be acting ultra vires to appoint 87. If the judgment of the probate court as to the an administrator. But it is said the probate court has residence of the intestate is not free from a collateral jurisdiction to ascertain the fact of death, and its attack, it can hardly be said that the judgment of the judgment finding that fact is conclusive until revoked court as to the death of the party can stand upon a or reversed. The general principle is, that the juris- higher ground. In fact, so far as our researches have diction being conceded the judgment is conclusive of gone, the case of Rodrigas v. East River Savings Inall matters involved; but if the jurisdiction be dis- stitution stands alone, and even that decision seems to proved, then the judgment is void for all purposes. If have been rendered doubtful upon a second hearing of it be conceded that the jurisdiction rests upon the ex- the case. See Melia v. Simmons, 19 Alb. L. J. 198. As istence of a particular fact, then it will not do to say a further argument against the validity of the adminthat the finding of that fact by the court is conclusive istration we need only see to what it would lead. If of its own jurisdiction for this would be, to use a the administration was valid until revocation, as common expression, "reasoning in a circle." The argued in the present case, then it must result that the judgment is conclusive if the court had jurisdiction, decree of the Chancery Court in the bill filed by Whitly and its judgment that it had jurisdiction is conclusive to collect these notes was likewise conclusive, for in of the jurisdiction. There may be in some cases con- that view it was a bill filed by one who was for the fusion as to what constitutes the jurisdictional facts, time being properly authorized to act as administrator but this would seem to be about as clear an illustration to collect assets due the estate, the proper defendants of it as could be found: That a probate court has were made, and the court had jurisdiction of the subassumed that a certain person is dead, and has grantedject-matter, and the decree rendered in the cause must administration upon his estate, when, in fact, he was in that view be held conclusive upon all parties. But not dead. A similar illustration is given by Chief suppose the decree had been in favor of the defendants Justice Marshall; he says: “If by any means whatever in the cause, and no such notes had ever been executed, a prize court should be induced to condemn as prize of or that they had been paid, would the complainant in war a vessel which was never captured, it could not be the cause be bound by the adju lication? Is it possible contended that the condemnation operated as a change that she could thus lose her property and rights by a of property. The proper distinction is illustrated in proceeding to which she was in no sense a party. The the case of Allen v. Dun 3 T. R. 125, where it was decree was in fact for only part of the debt. Without held that payment to one named as executor in a attempting to further follow the discussion into refineforged will which had been presented and allowed in ments it is sufficient to say that it will at last bring us the prerogative court was a protection against the de- back to the plain common-sense view of the question, mand of one who had procured the proceedings on the to which we think there is no sufficient answer, and that forged will to be set aside and himself appointed ad- is, that there is no law for administrating upon one's ministrator, this upon the ground that the person being estate until after he is dead, and that no living man is dead the court had jurisdiction; but the judge said bound by the adjudication of a court that he is dead. that if the person was not in fact dead, the whole pro- It might be different if we had a statute such as exists ceedings would be void — so that the jurisdiction rests in Rhode Island, or such as the New York court seems upon the fact of death, and this being clearly shown to have construed theirs to be, providing that after an untrue, it must result that the entire proceeding was absence for a given time one's estate may be adminiswithout jurisdiction and void. For at least it sounds tered as if he were dead, subject only to his right to almost absurd to say that any man is to be bound by reclaim the proceeds, in the event he return; even then the judgment of a probate court that he is dead. The it would be a question whether this would not be deargument that the court has jurisdiction to ascertain priving a man of his property without due process of the fact of death is fallacious. For this must assume law. See Albany Law Journal of 15th May, 1880, p. that the court may decide the question either way, and 383. But at any rate, we have no such statute. We if it conclude that the person is not dend, then it has hold the entire proceedings void. We also hold Whitly, no jurisdiction for any purpose. While the court may and his sureties on his bond of indemnity, liable to the hear evidence of the death, the fact is generally as- extent of the penalty for the money received by him. sumed, and if the court undertake to put its finding of The amount thus realized will be paid to complainant the fact in the form of a judgment, it gives it no in exoneration to that extent of the trust property. greater validity. This conclusion is sustained by the 1 Lea, 586. It appears that some of the persons to great weight of authority; the direct question was whom Whitly distributed the fund have voluntarily fully considered in a case precisely similar by the paid to complainant part of the amount; an account of Supreme Court of Massachusetts, and this view held this, as ordered by the chancellor, will be taken, and by the unanimous opinion of the court. Jochumsen the amount credited on the decree on the indemnity v. Savings Bank, 3 Allen, 87. The principle is directly bond. Under the circumstances we disallow interest involved in the case of Thompson v. Whitman, 18 Wall. during the war, and until 1st June, 1865, in accordance 457. By the laws of New Jersey it was made unlawful with our holding in similar cases, upon the ground for any one not at the time a resident or inhabitant of that the parties were for the time separated by the the State to gather clams, oysters or shell-fish in the lines of the hostile armies, and occupying toward each waters of that State, and the law authorizes the seizure other the relation of public enemies between whom of the vessel and its forfeiture, which may be declared commercial intercourse was forbidden. With this by any two justices of the peace of the county in modification the decree of the chancellor will be which the seizure occurred.

affirmed, and the cause remanded, and the costs of The suit was in the United States court against the this court divided. sheriff who had carried away the vessel, the defense Freeman, J. dissented. was the judgment of condemnation of two justices of the peace of New Jersey, which judgment recited the MCFARLAND, J. (upon a petition for a rehearing). fact that the vessel had been seized in their county. This We have been asked to rehear this case on account of was held not conclusive, and it being shown that the its novelty. The only additional argument offered is seizure was not in the county, the judgment of con- a review of the question in the American Law Review of May, 1880. This article concedes that the weight of the following agreement between the defendant Wilauthority is in favor of our conclusion, and refers to liam T. Smith and the other defendants is evidence additional authorities in its support that we have not of a copartnership between them. had access to. Moore v. Smith, 11 Rich. Law (8.

“This indenture, made this twenty-fifth day of C.) 569; Melia v. Simmons, 45 Wis. 334. The

April, in the year eighteen hundred and seventy-eight, author only undertakes to say that something may be

between William T. Smith, of Providence, in the State said on the other side of the question, and puts forth

of Rhode Island, of the first part, and Mason, Chapin somewhat doubtingly the suggestion that the jurisdic

& Co., of the said Providence, of the second part, tion does not depend upon tho fact of death, but upon

Witnesseth: That in consideration of the agreements the allegation of the fact in the application for letters

herein made, the said party of the first part covenants of administration. If disposed to enter further into

with the said parties of the second part, that on the the discussion we think it could be shown that this

first day of May, in the year eighteen hundred and position is unsound, but wo are content to rest our

seventy-nine, he will pay to them ten per centum of conclusions upon the reasons and authorities already

the net profits of the business, carried on during the given. The other points in the petition have been

year preceding the day last named, under the name fully considered in the foregoing opinion. As to the interest after June, 1865, while it is true that complain. Smith, Treasurer,' in consideration of their loan to

and style of 'Elmwood Chemical Works, William T. ant was absent with the notes in her possession, so that

him of $5,000, or of their indorsements for him to that they could not have been paid, yet it is not shown that

amount, for and during the year aforesaid, and will the defendants were ready, or desired to make pay

also pay to them two per centum of said net profits ment, or that they lost the interest.

for each sum of one thousand for which they may inPetition for rehearing dismissed.

dorse for him during said year in addition to said sum

of $5,000; and that he will conduct said business durWHEN JOINT ENTERPRISE IS NOT PART- ing said year to the best advantage, and keep accurate NERSHIP

accounts thereof upon books which shall be at all times open for examination by them.

"And that the said parties of the second part, in RHODE ISLAND SUPREME COURT, MAY 29, 1880.

consideration of the foregoing agreement, covenant

with the said party of the first part: that they will BOSTON & COLORADO SMELTING Co. V. SMITH.

loan to him $5,000 for the term of one year, from the Agreement under seal between A and B by which B was to first day of May, eighteen hundred and seventy-eight, loan A $5,000 for one year, or indorse his note for that

or indorse his note for that amount, renewable from amount for that time, and also indorse his notes to an time to time during said term, and will also during additional amount not exceeding $2,000 if B thought

said year, if in their judgment required for the proper such sums required for A's business. For this A was to pay B ten per cent of his net business profits of the

management of his business aforesaid, indorse his year, and two per cent of his net profits for each $1,000

notes to an amount not exceeding $2,000 in excess of indorsed for him over said sum of $5,000. A also agree

said $5,000. ing to conduct his business to the best advantage, and In witness whereof, the said parties hereto set to keep accurate accounts thereof to be at all times their hands and seals, the day and year first above open to B's examination. Ileld, an executory agree- written. ment which if carried into effect would make A and B

“WILLIAM T. SMITH, (Seal.] copartners neither as between themselves nor as to third

" MASON, CHAPIN & Co. [Seal.) persons. Held, further, that the lenders having no voice

“Executed in the presence of Edgar G. Robinson, in the management of the business and no interest in

witness to both signatures." the capital, the agreement was for a loan of money or credit in which a percentage of profits took the place of The contract, it will be noted, is executory, and of interest. Held, further, that such a contract did not,

course does not create a partnership between the paraccording to the later English cases, create a partner

ties to it until something is done to carry it into effect. ship at common law, A brought assumpsit against B and others whom A claimed

We presume, therefore, that the meaning of the questo be copartners of B for goods furnished them under a

tion put to us is, Is the contract such that it would sealed agreement executed by A and B. Held, that the

create a partnership between the parties to it, if caraction would not lie. As against B, A's claim rested on ried into effect according to its terms, or such that if a specialty, and as B alone could not be made liable in so carried into effect, it would render the parties to it assumpsit, so B in company with others could not be liable as copartners to third persons? We will conheld in assumpsit.

sider the question as if so propounded. Semble, that if a partnership existed between B and his codefendants, the partners who did not execute the sealed

If we regard the contract simply as a contract beagreement could only be reached by a bill in equity

tween the parties to it, to be construed as contracts filed by A.

are usually construed, so as to carry out their intention, we think there can be no doubt that it can only be considered a contract for a loan of money or credit

in consideration of a percentage of profits in lieu of in George Fuller and James M. Ripley, for plaintiff.

terest. It gives the lenders no voice in the manageTillinghast & Ely, for defendant Smith.

ment, and no interest in the capital, of the business. Edwin Metcalf, for the other defendants.

It gives them only a percentage of the profits for a

single year in a continuing business. It is true they DURFEE, C. J. This is an action of assumpsit for are to have the right to inspect the books, but only for goods sold and delivered by the plaintiff corporation information. The contract calls the business his. i. e., to the defendants, who are alleged to have been co- the borrower's, and it remains exclusively his as much partners in business at the time of their delivery. The during the continuance of the loan as before or afternames of the defendants are, first, William T. Smith, ward. The contract, as between the parties to it, and second, certain persons constituting the firm of is therefore simply a contract for a loan of money or Mason, Chapin & Co., to wit: E. Philip Mason, Wil- credit, and if, when carried out, it renders them liable liam P. Chapin, ('harles S. Bush, and Samuel L. Peck. as copartners, it is not because they have agreed to beTwo questions, one of which may be decisive of the come such, but independently of their agreement, by case, are submitted to the court for determination, force of an arbitrary or artificial rule, or by operation preliminarily to the full trial. The first is, whether of law.

ASSUMPSIT., Heard by the court under the sub

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