dent of the defendant bank, and Smythe, the president of the loan and trust company, and although charged to the defendant in an count rendered by the loan and trust company, yet it was so near the time of the failure of the bank that I do not think that the acquies. cence of the bank in the correctness of the account should be presumed. Judgment, $80,669.60.
CRONKHITE 'V. HERRIN.
(CircuitOourt j W. D. Wisconsin. 1888.)
STATUTE OF LIMITATIONS-PARTIAL PAYMENT BY PARTNER-DISSOLUTION OF FIRM-VERDICT FOR DEFENDANT.
As the only evidence offered to take the claim in this case out of the statute of limitations is a partial payment made .by a partner after the dissolution of the firm, such evidence will be struck out oil motion of defendant, and a verdict in his favor directed. .
PARTNEHSIIIP-POWER OF PARTNERS AFTER DISSOLUTION.
After dissolution of a partnership,one partner has no power to create or continue a debt as against his copartners, either by express agreement or Ily partial payments.
At Law. Decision on the motion to strike out evidence of payment of one joint debtor to take the case out of the statute of limitations. Finch If Barber, for plaintiff. William 1'. Vilas, of counsel. George W. Gate, for defendant. S. U. Pinney, of counsel. BUNN, J. Since the decision (jf Bell v. Morrison, by STORY, J., in 1 Pet. 351, there could be little doubt, in this court, that upon the dissolution of a copartnership the power of one partner to bind the other partners wholly ceases, and that, as a correct application of that doctrine, one partner has no power to create or continue a debt as against his copartner, either by an express agreement or by partial payment; for, although the case was not one where the power to uind by the continuation of a debt by partial payment actually arose, but only the renewal of the debt after it was barred by the statute, it would be hard to distinguish the two cases on principle. And so, accordingly, we find'that in New York, and other states where the authority and reason of Bell v. Morrison are admitted, the principle has been applied to cases precisely in the situation of the one at bar; that is to say, where it is sought to continue the obligation against
CRONKHITE V. HERRIN.
one joint contractor by means of a partial payment made by the other before the statute has fully run, so as to make the original obligation binding for the full period prescribed by the statute from the date of such payment. The principle is the same in the one case as the other; and the nature of the power in the hands of one joint contractor to bind the other is the same. And there can be no doubt that the statute of Wisconsin, which, in my judgment, simply expresses the true doctrine of the law on the subject in this country, was intended to cover, and does cover, both cases. It gives the full benefit of the statute of limitations to joint contractors, as against the effect of a payment made or promises to pay by a co-contractor. Its language is: If If there are two or more joint contractors, ·· no one of them
shall lose the benefit of the provisions of this chapter, so.as to be chargeable by reason only of any payment made by any other or otherll of them."
This clearly applies to cases of payment before as well as after the statute has run. The only remaining question is whether there is anything in the written contract of dissolution, made by the partners on March 3, 1873, which prevents the application of the statute to this case. In my judgment, clearly, there is not. That agreement is very clearly expressed, leaving little room for construction. Its effec t is this: (1) It dissolves the partnership from that day; (2) it provides that defendant, Herrin, shall assume and discharge the indebtedness of the firm of Cronkhite & Herrin to L. Yeomans and Anna Herrin; (3) that Cronkhite assumes and agrees to discharge all the other debts of the firm, and to save the firm and defendant, Herrin, harmless therefI'om; (4) all the assets and property of the firm are to belong to Cronkhite; (5) Cronkhite is authorized, for a period of 60 days, to sign the firm name to notes taken as renewal notes, and which mature within that time, or in liquidation of other existing indebtedness of the firm. It seems clear there is nothing in this contract of dissolution that any way enlarges the authority of Cronkhite to bind his former copartner, except to authorize him to give renewal notes for notes falling due within 60 days, and for tbe unliquidated indebtedness of the firm. By this very agreement Cronkhite assumes the debt in suit, together with all other of the firm debts, except those owing to Anna Herrin and L. Youmans, and agrees to save Herrin harmless from the payment of them. So that, instead of adding anything to Cronkhite's power to bind Herrin in respect to this claim, Herrin, as between the partners, was. upon a valid consideration, wholly dis-
charged from its payment. And .certainly the effect of the provision in regard to the giving of renewal notes being express and specific in its terms, and giving Cronkhite power in the particular case to do what he would not otherwise possess power to do under the law, cannot be to extend the power beyond what is so expressly given, and what the law would otherwise have given. Its tendency would rather be in theditection of an exclusion of any power to bind his partner not so eKpressly given or possessed. . The' case of the Nat. Bankv. Colton is relied upon by the plaintiff to show that the payment was; ma.de by Herrin, or by Cronkhite as agent for Herrin, and under his direction. But clearly that case is not in point here. The ,supreme court of Wisconsin reserved ,the finding of the circuit court, on the question of fact as to when and by whom a certain ment was made, and the decision is based upon the finding that Barnes.made·the payment of $585' as the agent and under the direction'of Gormerly, and so the payment was binding in its effect upon Gormerly,' a.s though made by'hiril. And all the cases cited and relied'Qr!. in tha.t case are of that character. In Winchell v.·Hicks, for (18 N. Y. 558,) when sureties on it joint andseyeral note were called 'On for payment, and they directed the1hold,er to call upon the prineipal for payment, and the principal made a payment on the note,it was held such an acknowledgment of liability as to arrest the running of the statute against the sureties. And 80 of all the otherCRses there cited. But the agreement of dissolution in this ease does not in any sense make Cronkhite the agent of Herrin.to make a payment on those notes. On the contrary, the evident effect of the agreement is that Cronkhite assumes these debts to pay them exclusively as his own debts. His payments, 'and then, are made, not so much as agent for Herrin as on his own account. I do not see that the contract adds anything to Cronkhite's authority to pay, or to bind Herrin by hie payments. Without any such contract assuming the debt as his own individual debt, as between him and his partner he had, under the law, full authority to make payments 'as well for his partner a.sfor himself, but had no authority to bind his former partner by partial payment so as to take the case out of the statute or continue the obligation as to Herrin. After the making of the contract he was still authorized to pay the debt, and . in addition, as between him and Herrin he was solely bound to pay it. The contract, then, in the view I have taken, does not help to take ihe plaintiff's case out from the operation of the statute. The
VON COTZH.U1SEN V. NAZRO.
evidence, therefore, of the partial 'payments made by Cronkhite, offered for the purpose of creating and continuing the obligation as against defendant Herrin, must be stricken out. 'And if, as mated by plaintiff's counsel, they have,no further evidence to offer, the court will direct ',a verdict for the defendant. No further evidence being offered, the court directed 1:\0, ver<Uot.,
VON COTZHAUSEN 'V. NAZRO
(Oircuit,Oourt, E. D. Wisconsin. October, 1879.)
UNLAWFUL IMPORTAT10N THROUGH MAIL-WOOLEN SHAWL DUTIAnLE-SJUZURE ,BY COLLECTOU-AcTION FOR CONVERSION.
A knit woolen shawl sent as a present through the mail from Ger,many in 8. registered package on which was indorsed the c.ontents of tile package and the words "Suspected liable to customs duty," was opened by the party to whom it was lJ.ddressed, at the post-office, in the presence of a deputy collector, who took it from her, hadit appraised, and refused to deliver it until she had paid the appraised value or received permission from the secretary to pay the duty and to receive the package. In an action for wrongful conversion, held, that the article was dutiable;, that its importation through the mails was unlawful, though, the intent of the sender was innocent; that it was the duty of the propel,' officer, if he had reasonable cause to believe it was subject to duty, or bad unlawfUlly been introduced into the UUlted State$, to seize it, and having done so, he was by law the custodian of the property; that the owner could only reclaim. it by payment of the appraised value or appeal to the secretary of the treasury for relief; and that there was not a wrongful convel,'sion of the property. 2.
SAME-OWNERSHIP AS ENTITLING TO POSSESSION.
Where property that is dutiable is imported contrary to law, it is liable to seizure. and it does not follow from the fact of ownershIp that the owner would be entitled to possession. S. SAME-SECTION 2082, REV. ST.-MERCHANDISE NO'f FOB BALE. Section 2082 of the Revised Statutes comprehends any merchandise imported contrary to law, and is not limited to merchandise sent or received for sale.
At Law. This was an action to recover the value of a certain article of personal property which was sent to the plaintiff by a relative residing in Germany, in a sealed envelope, through the mail, and which it was claimed had been unlawfully converted by the defendants to their own use. The defense to the action was that the defendant Nazro was collector of customs, and that the defendant Payne was postmaster at the city of Milwaukee; that the article in qnestion was to customs duty under the customs laws of the United States; that the not having been paid, the article was liable to seizure and