trlct of Mississippi, and one for each district in the states not herein named.and shall be called the circuit courts for the districts for which they are established." Rev. St. § 608.
The amendatory act, (Supp. Rev. St. 490, supra,) which estab. lishes the circuit courts in the northern district of Texas, does not establish more than one circuit court in the district, and does not save to the citizen of said district the right to be sued in the circuit court only at certain places therein. We can understand, easily, from the general phraseology of the several acts referred to, that the intention to create several divisions in the northern district, in which residents could only be sued in the circuit courts, existed in the' minds of whoever drew the acts in question, but congress did not carry this intention into the law actually passed. The only restriction that we find as to the place where parties may be sued in the circuit courts of the United States, is found in the jurisdiction act of March 3, 1875, which, for this and like cases, provides: "And no civil suit shall be brought before either of said courts against any persons, by any original process or proceeding, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except as hereinafter provided;" from all of which it follows that this suit was rightfully instituted in this court, and the demurrer should be overruled. MCCORMICK, J., concurs.
PHELPS and another.
December 26, 1882,)
(Circuit Court, E. D. MicMgan.
JURISDICTION - SUIT BY PURCHASER OF PARTNER'S INTEUEST AT EXECUTION BALE-ACCOUNTING.
A purchaser at an execution sale of the interest of one partner in the partnership assets, if such purchaser be a n0n-resident of the state, may maintain a . bill in equity against the remaining partner for a division of such assets and an accounting, notwithstanding the fact that the partner, whose intere3t is so purchased, could not himself have tiled such bill, for want of the requisite citizenship. 2. SAME-SUIT BY ASSIGNEE-ACT 1875.4 l. Such snit is not" founded upon contract in favor of an assignee," within tha meaning of t'le first section of the act of lb75.
M'NICHOL V. PHELPS.
In Equity. On motion for an injunotion and reoeiver. Certain oreditors of Martin Geiger obtained judgment, and levied exeoution upon his interest in the stook in trade and accounts of Geiger & Phelps, a firm engaged in the crookery business in the city of Detroit. Both partners were citizens of Michigan. The property of the partnel'ship, which complainant alleged to be of the value of $8,000, was incumbered by a mortgage to Geiger's wife of Geiger's interest in the partnership was also incumbered by other mortgages to the amount of $1, 700. Complainant, who was a citizen of Ohio, purchased the interest of Geiger in the property at execution sale, and filed this bill against Phelps & Geiger for an accounting, in order that Geiger's interest in the firm might be adjusted and turned over to the complainant. Oeo. W. Bates, for complainant. Chm'les F. Burton, for defendant Phelps. BROWN, J. In opposition to this motion, defendant Phelps insists that this is a suit "founded upon contract in favor of an assignee," and therefore not cognizable by this court, because, under the act of ' 1875, it oould not have been prosecuted herein by Geiger, if no sale of his interest in the firm had taken place. He urges that complainant's interest arose from an implied contraot between Geiger and Phelps, under which, in case of a dissolution, eaoh was bound'to account to the other, and divide the surplus equally; and that com: plainant, who bought Geiger's interest, is, in law, an assignee of such contract, and took by his purchase a mere right to demand an acoounting by Phelps, and no interest in the partnership property, He relies for this position upon the authority of Wilkinson v. Wilkinson, 2 Curt. 582, in which it was held, under the eleventh scction of the judiciary act, that an assignee of a right to an account of the proeseds of sales of mortgaged property oannot maintain a court of the United States, in a case where his assuit in the signors were not competent, upon. the ground of citizenship, to sue the defendant. We do not deem this ruling oonolusive upon the point, as all the property in this case had been converted into money. The statutes, too, are quite dissimilar. Upon the other hand, oomplainant argues that the sale of Geiger's interest to him passed an interest in the partnership property itself, and that the accounting is but an inoident to the determination of such interest. There is no doubt that the sale of Geiger's interest wrought a dissolution of the partnership, Complainant and Phelp's thereby became tenants in common of the partnership assets, subject to the
partnership debts. If the case were one of joint tenancy of lands, . there could he no doubt that the vendee of one of the joint tenants might 1Uaintain a bill for partition, notwithstanding there were unpaid debts whIch" were chargeable to the joint tenancy. The same rule would apply to a joint tenancy of personal property, if the property itself were divisible. Unless it can be said that the interest of a partnership after dissolution is a mere right to an accounting, then the complainant stands in the position of a ven4ee of personal property, with a right to sue in this court, which the vendor might not have. Defendants' argument presupposes that defendant Phelps is bound at, all events to account for and pay over the value of the stock remaining on hand after the payment of the debts; but I apprehend that his duty to the complainant would he discharged by tender. ing him a moiety of the stock remaining on hand, in specie, after such payment. If, in the course of winding up the partnership affairs, a sale of the stock is had, it is only because it is a more convenient way of paying the debts and ascertainiIlg the value of the surplus. But if, for instance, the firm were dealers in grain, and their entire stock in trade consists of 100,000 bushels of wheat, and there were no debts, it seems to ,me entirely clear that, upon a dissolution, the court would have the' power to direct the wheat to be divided equally between the partners. Such, we think, is the proper deduction from the case of Clagett v.Kilbonme. 1 Bh1Ck, ;346. The facts in,this case, that the partnership assets consist of crockery and acc(mnts, and that the eutire stock in the, store, as w'3ll as Geiger's interest in it, are subject to chattel as well as other partnership debts, do not affect the principle. PossiWy, if the entire assets consisted of claims and accounts, a different result would follow; but it is not necessary to express an opinion upon this question. We tbink the complainant is eorrect in. his POSitioll that he took by his purchase an interest in the partnership property itself, and his right to an accounting is incidental and subsidiary thereto. , As there seems to be no that Phelps ill insolvent, and refuses allow complainant to participate in the winding up of the partnership, and denies his interest in the property, I think it a case for an injunction and the appointment of a receiver.
DE VIGNIEB V. OITY OF NEW ORLAANS.
DE VIGNrER 'V. CITY OF NEW ORLEANS.·
FOLSOM BROTHERS V. SAME.-
(Oircutt Oourt, ]il. D. Louisiana. April, 1883.)
POWER. , In the absence of any provisions of the statute which had entered. into and formed part of the contract, giving the right to impose a tax, bonds or other obligations of a city, which belong to non-residents, cannot be taxed without impairing the force of the obligation itself.
In a case pending here, this court has jurisdiction to protect the judgment, which is the right of the plaintiff to recover a certain amollnt of money, from all illegal procedures on the part of the debtor which assert a lien, and, if not arrested, might end in a complete difestiture of title.
On Demurrer. Bills for an injunction to restrain assessment and collection of taxes upon judgments held and owned by non-residents. Robert Matt, for complainants. Charles F. Buck, City Atty., for defendant. BILLINGS, J. In the first case, the judgment is for coupons of consolidated bonds issued by the city of New Orleans. the second case, the judgment is for damages occasioned by destruction of property by a mob. In Railroad Go. v. Pennsylvania, 15 Wall. 300; Mtirray v. Cityaf Charleston, 96 U. S. 432; and Hartman v. Greenhaw, 102 U. S. 672, the supreme court of the United States have settled, among other propositions of law, the two following, which apply to these cascs:
(1) That the exercise of the power of taxation by municipal corporations is such an act of legislation that if it impairs the obligation of a contract it is within the prohibition of article 1, § 10, that no state shall pass a law impairing the obligation of a contract. (2) That obligations to pay money on the part of states or cities, while they may be property, are not so localized as to be property within a. litate or city. when held by persons residing outside thereof.
It can hardly be doubted but what the statns of obligations, so far as relates to exemption from taxation before suit, would continue after suit; otherwise the debtor, by making default in the performance of his contract, would cast an additional burden upon the cre<I. itors, and cause a subtraction from the amount due. This was the judgment by the legislature of Louisiana, for, in the charter of 1856,
4Reported b)' Joseph P. Hornor, Esq., of the New Orleans bar.