to be reconciled with any other view, and therefore unconsciously applying it. In support of this statement he cites several legal the aggregate theory of partnership. It declares that a suit can be brought against the partners. This is unquestionably inconsistent with the legal-person theory. Dean Ames in drafting an act on the legal-person theory was consistent when he expressly provided that "actions upon claims in favor of or against the firm must be brought in the firm name." Draft 1, Sec. 5 (4); Draft 2, Sec. 4 (4). The fact that the statute also permits the suit to be brought in the partnership name does not make the statute as a whole consistent with that theory. Why should not the law provide, for purposes of convenience, that persons carrying on business under a common name may be sued under their common name? When they are sued in their common or partnership name, whether judgment should be levied on the separate properties of the partners is a practical question, which should not be decided one way or the other because of any legal fiction. There is much to be said for the provision embodied in the Iowa statute that the judgment shall bind the separate property of those partners only who have appeared or been served with notice. The provisions of this statute, though perhaps more happily expressed, were embodied in the procedural section which was part of the seventh draft of the Uniform Act submitted to the commissioners. The section was omitted in subsequent drafts because of the policy of the commissioners not to embody any procedural provisions in their commercial acts. The court in the case under discussion are apparently convinced that a partnership is a legal entity. Consequently they interpret the words "such members as have appeared" as if they read "such members as have appeared to defend in their personal capacity rather than as agents of the partnership" (p. 704). The remarks are dicta, but if practically applied are apparently calculated to do much injustice, as they appear to permit a partner actively to defend a suit against the partnership and yet prevent the judgment being levied on his separate property. Cross v. Burlington Nat. Bank, 17 Kan. 336 (1876). The court applies the wellknown principle, that while a partner on entering a firm is not liable for prior debts, yet very slight testimony will be sufficient to prove an assumption by him of those debts. This is in entire accord with the theory on which the Uniform Act is drawn. That the business formerly conducted by one or more persons is now carried on by that same person or persons in association with a person not formerly a co-owner of the business, is a fact. The recognition of the fact, however, does not involve the assumption that the business is conducted by an artificial person. Again, the partner entering an established business should in the words of the court share in its (past) obligation as well as its property and business. Thus Sec. 17 of the Uniform Act changes the existing rule that an incoming partner is not liable for existing debts by providing that "A person admitted as partner into an existing partnership is liable for all the obligations of the partnership arising before his admission, as though he had been a partner when such obligations were incurred except that this liability shall be satisfied only out of partnership property." Duquesne Distributing Co. v. Greenbaum, 135 Ky. 182, 121 S. W. 1026 (1909). The court held that a suit could be maintained against a partnership for a slander uttered by an agent of the firm acting for and under the direction of the partners. What this has to do with the theory of the legal nature of a partnership is not at first easily perceived. Whether an obligation arising out of a tort committed in the course of carrying on a business owned by two or more persons should be regarded as an obligation to be sued on and collected in the same manner as an obligation arising out of a contract rules pertaining to partnership law which we will proceed to examine, for convenience designating them by number. made in the business is an important practical question. If the partners are liable for the torts of their agents, why should not the obligation to pay for the injury be regarded in the same way as any other obligation created in the course of the conduct of the business? To decide the question in the affirmative it is not necessary to affirm or deny either that a partnership is a legal person or that it is an association of persons each having a distinct legal personality. The court in the case under discussion took the position that two persons cannot be sued jointly for the same slander, on the ground that the words of one are not the words of the other. The court admits that one man can be sued for a slander uttered at his direction by his agent. Why then, when an agent acts by direction of two, the two principals cannot be sued jointly is not clear. Having, however, created an unnecessary difficulty by taking the position that an agent cannot in committing the act of slander act for two jointly, they escape from the difficulty by the fiction that the slanderer in the case before them did not act at the direction of the partners, which was the actual fact, but by the direction of a fictitious legal person. Woodman v. Boothby, 66 Me. 389 (1876). I have shown in the text that this case does not involve the assumption that a partnership is a legal person. See page 187. Robertson v. Corsett, 39 Mich. 777 (1878). A. and B. owned undivided interests in land. They entered into business with C., the business having the use of the land. A. mortgaged his undivided interest in the land to D., the mortgage merely describing the land by metes and bounds. The issue in the case was whether certain machinery put in to carry on the business was so far attached to the premises as to become a part of it, and therefore included in the mortgage, or whether it remained partnership property. The court decided that this was a question of fact depending on the intent of the parties. In deciding that some of the machinery was not covered by the mortgage it was not necessary to decide that the partnership was a legal person. Had the business been conducted by A. alone, the question whether the intent was to mortgage the machinery would have been essentially the same - namely, was the machinery merely there for the purposes of the business, or was it so identified with the land as to be a part of it? -- Clarke v. Laird, 60 Mo. App. 289 (1895). A., B., and C. were members of one firm; A. and B. of another. The second firm sold and delivered goods to the first firm. Creditors of the second firm had the goods attached and seized. Held in an action of replevin that the attachment and seizure were unlawful. The same result would be reached under the Uniform Act. Sec. 25 (2c) declares that “A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership." The existence of two partnerships is a fact. Each association had its property. There was no reason why goods used by A. and B. in the first business should not become part of the stock of the business of A., B., and C. if the parties so desired. The transfer having been effected, it is proper to speak of the goods as the property of the first partnership. The creditors in the attachment were not creditors of that partnership. To recognize two businesses conducted in part by the same persons as being two distinct businesses carried on by distinct associations is to recognize a fact. As pointed out in the text, page 161, the recognition of this fact is a very different thing from saying that each partnership is a separate legal person. Clay v. Douglas County, 88 Neb. 363, 129 N. W. 548 (1911). A statute provided that "The property of banks or bankers, or other companies, and merchants . . . shall First. "A creditor holding a security given by a partner individually is not treated as a secured creditor for the purpose of proving against the insolvent estate of the firm." 27 be listed and taxed in the county . . . where the business is done." A. et al., all nonresidents of the state, were partners. They maintained an office in Omaha, B. being the resident agent. B., acting for the partnership, loaned money on notes. The notes were made payable in Chicago, and were kept in the partnership office in that city, but as a matter of fact payment was made to B. in Omaha. The question at issue was whether the credits represented by these notes were taxable in Nebraska. It is clear that as the state had a right to tax these credits, the decision of the question depended on the wording of the state statutes. The court held that the partnership was subject to taxation on these credits although they intimated that had the notes been owned by a non-resident natural person such natural person might escape taxation (p. 366). This conclusion is reached on the ground that a partnership is an artificial person and that an artificial person has a residence wherever it has a place of business. It is submitted that to impose a tax on property owned by non-residents who happen to be associated in business, which would not be imposed if the business was owned by one person, the statutes of the state imposing no special rules in regard to the taxation of credits owned by partnerships, is an arbitrary and unjust result. This unjust result would never have been reached had it not been for the legal fiction of the partnership as a separate legal person. Curtis v. Hollingshead, 2 Green (N. J. L.) 402 (1834). The question at issue was whether under the Attachment Act a creditor of a firm can sue out an attachment against a non-resident or against an absconding partner if the other partners reside in the state. This question the court, in an elaborate opinion, decided in the negative. At the end of this opinion they answered an argument of counsel to the effect that "each partner is a debtor, and his interest in partnership effects, at least after the debts of the firm are paid, is his separate property, and therefore liable to be attached," by saying that each partner is not a debtor to the whole amount of the partnership debt, because "a partnership is considered in law as an artificial person (pp. 409, 410). The Act under discussion treated joint debtors and partners in the same manner. N. J. REV. LAWS, 1800, p. 366, ACT, March 8, 1798 (Sec. xxvii). If the only reason for not allowing the attachment in this case was the theory that the debts of a partnership are not the debts of the partner but of a fictitious legal person, then the decision, without any warrant from the wording of the Act, produces the following results: When two joint debtors not partners own in common property, and one leaves the state, the creditor may attach the property held in common; but if the debt is contracted in the course of their partnership business by the same persons, and one leaves the state, property held for the purposes of the business cannot be attached. Ingenuity in the shape of a legal fiction of an artificial partnership legal person is responsible for this anomalous result. Peyser v. Myers, 135 N. Y. 599, 32 N. E. 699 (1892). A. et al. were partners. They were insolvent; they were indebted to C. B. was admitted as partner, not contributing any capital. E. et al. extended credit to the partnership after B.'s admission. The partnership assigned to T. for the benefit of creditors, directing that C. be paid first out of the assets. E. et al. attacked this preference, on the ground that C. was not a 27 This and the other legal rules cited by Mr. Crane in support of the second statement will be found in 28 HARV. L. Rev. 767, 768. Under the Bankruptcy Act if a creditor holds property of the bankrupt as security, he must sell it and prove only for the balance, creditor of the firm that assigned. The court sustained the preference on the ground that the property of the old firm on B.'s admission became the property of the new firm, and that under the facts of the case it was the understanding of B. and his partners that the debt to C. was assumed by the new firm. As pointed out in connection with Cross v. Burlington Nat. Bank, 17 Kan. 336 (1876), under the Uniform Act the same result would be reached without the necessity of proving that the incoming partner had agreed to pay the existing debts of the business, an assumption which even in this case is somewhat strained when we remember that we not only have to assume that the incoming partner agreed to permit the property in the business to be applied to the payment of existing debts, which is a natural assumption, but that we also assume that he agreed that his separate property could be taken for that purpose. Section 17 of the Uniform Act, as stated, makes the incoming partner liable for existing debts, but provides that this liability shall be satisfied only out of partnership property. Again, Sec. 41 (1) provides that "When any new partner is admitted into an existing partnership . . . if the business is continued without liquidation of the partnership affairs, creditors of the first or dissolved partnership are also creditors of the partnership so continuing the business"; thus, as pointed out, producing the exact result reached by the court. Although in this case the court does not even reach its conclusion on the ground that a partnership is a legal person, they do explain that the reason why the separate creditors of a partner have only the debtor partner's rights in the profits after partnership creditors are paid is that "the corpus of firm property belongs to the firm as an entity" (p. 604). As pointed out in the text (see page 173), the provisions of Sec. 25 of the Uniform Act reach the same result, not by the assumption of a partnership legal person, but by giving the partner's right as cotenant in specific partnership property the legal incident of being assignable only in connection with the assignment of the rights of all the partners. Clarke v. Slate Valley R. R. Co., 136 Pa. St. 408, 20 Atl. 562 (1890). In this case the court declared that ordinarily the majority of the partners have a right to select an attorney to prosecute a partnership claim. It is hardly necessary to point out that the legal-person theory of partnership is not necessary to the decision. Under any theory of the nature of a partnership, the real issue in such a case is whether the act is one which, in view of "the manner in which the business of a firm must be conducted" (p. 414), the majority of the partners, even against a protesting minority, should be allowed to do. To discuss the abstract question whether a partnership is a legal person separate from the partners tends, in this as in all similar cases, to cloud the real issue, by withdrawing the mind from the necessity of looking at the facts of partnership business and the way in which it can practically be conducted. Trumbo v. Hamel, 29 S. C. 520, 8 S. E. 83 (1888). A. and B., partners, made an assignment of all their partnership property for the benefit of partnership creditors. They each had a small amount of separate property and separate creditors. After the assignment, D., a partnership creditor, secured a judgment and attempted to obtain a prior lien on the sum realized by the assignee from the sale of the property. The lower court permitted this, one of the grounds being that the assignment was void as a partial assignment in that it did not include the individual property of the partners. Two of the three judges, while not affirming that a partial assignment for the benefit of creditors is always void, answer the objection to the assignment by saying that "a co-partnership is a distinct entity, entirely separate from that of any of its or he must surrender the security. On the other hand, if he holds as security for his claim against the bankrupt, property of a third members" (p. 526). They also point out that the assignment was openly made, and that if there was individual property of the partners, the assignment left it, as before, liable to creditors. The assignee on the payment of the partnership creditors in full was, by the terms of the assignment, to return the surplus to the partners. It is submitted that this provision of the assignment raises the real issue in the case, which is whether the assignment was a hindrance to the creditors of the assignors not included in its terms. This can only be ascertained by the answer to the inquiry: What are the rights of the separate creditors in partnership property? To this inquiry both the legal-person theory and the provisions of the Uniform Act give the same answer. Under the legal-person theory, until all the partnership debts are paid, and the surplus divided among the partners, the separate creditors cannot attach partnership property. All they can do is to attach the partner's interest in the partnership. Under the Uniform Act there is precisely the same result. Sec. 25 (2c) provides that the partner's right as co-owner of specific partnership property is not subject to attachment or execution on the claims of separate creditors, and under Sec. 28 (1) his interest in the partnership may be attached (charged) by any separate creditor. Good v. Jarrard, 93 S. C. 229, 76 S. E. 698 (1912). A., the owner of land on which was a house, leased the premises to B. and C., partners, for the purpose of their business, the lessees taking possession. Before the expiration of the lease, B. entered into an executory contract for the purchase of the property, the money to be paid on the delivery of an unencumbered title. Prior to the execution of the contract, and while B. and C. were in possession under the lease, the house burnt down. The court decided that the loss should fall on the vendor. They refer to the fact that the vendor was still exercising the rights of owner, and in this connection assert that B. "was not in possession as vendee, but in his representative capacity as a firm, which is a distinct entity from the members of the firm, in their capacity as individuals" (pp. 236, 237). It is manifest, however, that the legal-person theory to which the court gives adherence is not necessary to the conclusion. Even if we assume that the court would have held that the loss falls on the vendee when he is in possession, that possession would have to be possession as owner under the contract of sale; and whether we regard B.'s possession as the possession of an agent for a legal partnership person, or for himself and C. as partners in a particular business, he certainly was not in possession as owner under the contract. Pierce's Adm'r v. Trigg's Heirs, 10 Leigh (Va.) 406 (1839). The legal title to certain real property, bought with partnership funds, was held in the names of the two partners. One died leaving infant heirs. The survivor brought a bill against the heirs compelling a sale for the benefit of the partnership. On the heirs attaining their majorities they attacked this sale. The court applied the rule that, though title to partnership real estate held in the name of a partner passes to his heirs, the beneficial interest passes to the surviving partner or partners. They, therefore, sustained the former decree. The result under the Uniform Act would, of course, be the same. Section 8 provides that “All property . . . acquired by purchase or otherwise on account of the partnership is partnership property." One of the judges who delivered an opinion in the case asserts that the partners during their lives held the legal title in trust, not for themselves as individuals, but for the partnership as an artificial person (p. 423). It is hardly necessary to point out, however, that the conclusion, which is that the property could be sold on the death of one partner by the survivor for the |