Burnett & Turner were partners in the business of keeping a wharf-boat at Helena. The firm owned a wharf-boat, which was purchased and used for partnership purposes, and was partnership property. This wharf-boat was purchased from Johnson, partially or wholly upon credit. Burnett, one of the partners, died before the wharf-boat was paid for, and after his death, and on the twenty-fifth day of April, 1879, Turner, as surviving member of the firm of Burnett & Turner, transferred the wharf-boat, by deed of trust in the nature of a mortgage, to Tappan, to secure the pay- . ment to Johnson of the balance of the pnrchase money. The deed of trust was duly acknowledged and recorded on the twenty-fifth of April, 1879. On the twelfth of March, 1879, Bohler, Huse & Co. recovered a judgment against Burnett & Turner, in the United States district court, at Helena, for $1,399.78, and costs. On the twenty-sixth day of April execution was issued on this judgment, and on the thirtieth day of the same month the writ came to the hands of the marshal, and was levied on this same wharf-boat. By agreement the boat was sold, and the proceeds paid into the registry until it should be determined whether the plaintiffs in the execution, or the beneficiary under the deed of trust, was entitled thereto. Thwealt <t Quarles, for plaintiffs. Tappan <t Horner, for defendant. CALDWELL, J. The precise question in this case, on the agreed facts, is whether a sole surviving partner can make a valid transfer by deed of trust in the nature of a mortgage of personal property, belonging to the partnership, to secure the payment of a partnership debt. During the continuance of a partnership one partner may transfer personal property by way of mortgage as security for a partnership debt. Milton v. Mosher, 7 Met. 244; Patch v. Wheatland, 8 Allen, 102; Anderson v. Tompkins, 1 Brock. (Marshall's Decs.) 456; Harrison v. Sterry, 5 Cranch, 289. On the dissolution of partnership by the death of one copartner, the right to the possession and control of the partnership effects vests in the survivor, for the purpose of settling up the
EHRMAN V. TEUTONIA. INS. CO.
partnership affairs. He has the legal title to the assets, and the exclusive right of disposing of the property, and of collecting and paying the partnership debts. Stearns v. Houghton, 38 Vt. 583; Rays v. Vilas, 18 Wis. 179; Pinckney v. Wallace, 1 Ab. Pro 82; Barry v. Briggs, 22 Mich. 201. Ana. the right and power of the sole surviving partner to dispose of the partnership effects, in settlement of the partnership business, is not limited to the right to make an absolute sale of the same, but he may transfer the choses in action and other personal property, by way of pledge or mortgage, to secure a partnership debt; and, when such transfer is made in good faith, it is effectual against all other cred-itors, as well as the representatives of the deceased partner. Lorillard v. Lorillard, 4 Abb. Pro (N. Y.) 210; Hitchcock V. St. John, 1 Hoff. Ch. 511; Wilson V. Soper, 13 :8. Mon. 411. No fraud is charged or proven. The case turns on the question of the power of a sole surviving partner, acting in good faith, to secure a partnership debt by giving a mortgage or other lien on personal property. His right to do so is not open to serious question. The lien of the deed of trust is prior in point of time, and therefore paramount to the lien of the execution; and the money arising from the sale of the wharf-boat must be paid to the beneficiary under the deed of trust.
EHRMAN V. TEUTONIA INS.
(District Oourt, E. D. Arkansas. --,1880.)
PLEADING-WANT OF JURISDICTION-OBJECTION TAKEN BY ANSWER.-
The Arkansas Code abolishes pleas in abatement, and in that state there is no difference in the method of pleading matter in abatement and matter in bar; and where a want of jurisdiction over the person is not disclosed upon the face of the complaint the objection may be taken by answer. BUIE-MATTER IN ABATEMENT-How PLEADED.-Matter in abatement must be pleaded with exactness, and ought to be certain to every intent.
INSURANCE ,CmfPA::ifrEs-NON-COMPLIANCE WITH STA'I'UTE OF STATEVALIDITY OF POLICIES.-By failing to comply with the requirements of the Arkansas statut.e, prescribing the terms upon which insurance companies of other stat.es may do business in that state, such companies and their agents and brokers render themselves liable to the penalties denounced by the act, but such failure does not affect the validity of the policies issued by them, or in any manner operate to the prejudi<ie of t.he policy holder. SAME-SUIT ON POLICy-PROCESS-SERVICE ON, STATE AUDITOR-EaTOPPEL.-A statute of Arkansas provides that no insurance compam', not of that state, shall do business in the state until it has tiled witli the auditor a stipulation in writing agreeing that legal process alleetin;; t lie company, served on the auditor of state, shall have the same eiIect as if served personally on the company. Held, that if an insurance company does business in the state, and issues policies to citizens of the state on property within the state, that in a suit on such a policy service of process on the auditor was good personal service on the company, althou,c;h the written stipulation to that effect was not filed with the auditor; that ill such case the comfJany was estopped to say that it had not filed the stipulation and had not assented to such service.
This action was brought to recover for an alleged loss on a fire policy. The complaint alleged the plaintiff was a citizen of the state of Arkansas, and that the defendant was a corporation created by the laws of the state of Louisiana and a citizen of that state "doing business and taking risks of insurance in the state of Arkansas," and that plaintiff paid the premium and the defendant issued to him the policy in suit. The property insured was then contained and during the life of the policy was to be kept in a building situated in the city of Helena, Arkansas, and that the loss occurred there. Summons was issued and duly served on the auditor of state, under section 3561 of Gantt's Digest, as amended by act of February 27, 1875. The defendant entered a special appearance, and filed the following plea, not sworn to: "Now, on this day comes the defendant, the Teutonic Insurance Company, and, without entering their appearance herein, say, by way of abatement of the writ in this behalf, that they never had any agent in this state; they never had any certificate of authority, as provided for by the act of February 27, 1875; that they never, in any manner, complied with the laws of the state of Arkansas providing for the duties and liabilities of foreign insurance com.