Polynesian. [volume] (Honolulu [Oahu], Hawaii) 1844-1864, 1862-10-25

Browns I. l66), Lord Chancellor ThurlOw
held that, had the agreement been, that the mills
should be valued and sold, it would have converted
them into personality of the partnership; but that
the agreement, in this case, was not sufficient to
vary the nature of the property therefore, that
after the dissolution. the property would result
according to Its respective nature, the real real
the personal as personnel estate. Ii is observable
that the decision in this case like that of Lord
Eldon In Ripley rS. Waterworth, rests upon the
construction Of an agreement between the parties.
In the case of Bell u.s. Phyn. G. Vesey Ju. 453),
In which Judgment was given on the same day as
in the case of Ripley Us. " haterworth, Sir William
Grant. NJ. K, one of the ablest equity judges who
ever sat upon the English bench, said, at the close
of the argument, that, supposing this part
nership property, he doubted whether the cOnse-
quence conversion, for there was no occasion
to call for 1t for any of the purposes of the part
nershlp. 1t remained clear. And his Honor sug-
gested the pertinent question, d" Why is it to be
considered personal property, something different
from what it really is. between the real and
personal representative " question to which
have not yet seen satisfactory answer given by
any court holding different opinion He decided
In favor OF the heir, on the ground that, even If
1t was partnership property, there was nothing
done by the partners to alter the nature of it.
In the case Of Balmain Us. Shore, 60 Vesey Ju.,
1897, the same learned judge, citing the decision
OF Lord Thurlow, in Thompson rs. Dixon, held
that real estate purchased and held for the use of
the partnership, not converted into personal
property.
In the case of Randall u.s. Randall ,.the Vice
Chancellor, Sir l.. Shadwel, held that the property
which WAS the subject of the suit, not, under
all the circumstances of the case, to be considered
converted into personality because g it did not
appear that the parties purchased the land for ths
purposes of their partnership in trade" and it
understood from the tenor of his Judgment,
that he disposed to hold, that, in the absence
of any express agreement to the contrary, the real
property of partnership is not to be deemed con-
verted into personality, except so far as may be
necessary for partnership purposes. tCollyer on
Part, Sec 49, Bisset on Part, p. 3D.
In the subsequent case of COokson Us. COokson,
6 SIM 529), Mr.. Collyer says Sir l.. Shadwell
had opportunity of deciding the express point;
but Mr. Bisset thinks the decision IN that case
does not conflict with the more modern decisions
which preceded it, on the ground that the real es
tate was not actually purchased with partnership
assets. In that case the real estate originally
the property of Isaac COoksOn, the elder, who,
when he took his into partnership with him,
gave him six thirty second parts of the real estate,
and then il was agreed between them that the real
estate should continue to be used a manutactOry
for carrying on their trade, and should be had,
taken, and enjoyed part of the joint stock in the
partnership business. The Vice Chancellor, IN
giving Judgment, did make point OF the fact that
the real estate not actually boug ut with part
nership money, apparently for the purpose of
freeing the case from the application of what he
evidently considered the unreasonable doctrine OF
former decisions But in answering the question
whether OF not the real property. in any case, is
converted out and out into personally, see no
difference In principle between the case OF the
parties putting into the stock real estate which
they already hold in common, and that OF pur-
chasing real estate and then putting 1t into the
stock In respect to q clause at the end of the
- ba Oh
showing that for all intents and purposes, and for
all time the fathers shares had become personal
property his Honor said, " understand the cove
nant as having a very distinct meaning, namely,
that during the partnership, and,i necessary for
partnership purposes, after the expiration of the
partnership, the shares which the father and the
son had respectively, should be considered as per-
sonal estate but it would be quite absurd to say
that the covenant shall be SO extended as that.
though the partnership expired. and though the
land was not required To be sold for partnership
purposes, it should have the effect of making
that which was unquestioably land in its own
nature, absolutely personal estate, not for
any beneficial purpose either to the father or to
the son, but for tine purpose of making sort
of unnatural and unnecessary conversion OF real
assets into personal, between the real and per-
sona of the two partners respective
| ly.'' (Bisset on Part, p. BY 1t seems to me
that the legal rather equitable, implication by
estate devoted to the use of partnership, became
converted out and out, and to every intent, into
/ Dersonalty can never be deemed of greater force
than the express here referred to in Cook
/ son u.s. COOkson, and yet the learned Wee Chan
/ ceor gave to that covenant what | consider the
ONLY sound construction, limiting the operation OF
/ the equitable principle to Its legitimate hounds.
/ In the case of Eoxie Us. Carr et al, (Sumner's
R., D. l73), Mr.. Justice Story, in the course OF
his decision remarked, " A question often arises,
whether real estate, purchased for partnership,
is to be deemed for ail purposes personal estate,
/ like other effects. That 1t is 50, to the payment
of the partnership debts, and adjustment OF part
nership rights. and winding up the partnership
concerns, is clear. at least in the view of a court
of equity. But whether it becomes personal es-
tate as between the executor or administrator OF
deceased partner and his heir deyisee. is quite
different question. upon which learned judges have
entertained opposite opinions. In that case the
question was only whether the real estate was to
be treated, in equity, personal property as be-
tween the partners themselves and the creditors of
the partnership. The learned Judge regarded 1t as
the established d0ctrne of courts OF equity, that
it should be so treated to that extent and decided
accordingly.
In the case of Burnside et ais Merrick et aLs,
in the Supreme Court Of Massachusetts, it was
held that real estate, purchased by partners, Tor
the partnership business and with the partnership
funds, though conveyed to them by such deed as,
iI>ase of other parties, would make them tenants
in smon. is considered in equity, as part of the
partISss stock, and is to be applied, II neces-
sary, toTsr1s payment of the partnership debts.
And that, thougT>sGch estate Is considered, at
law, as the several property of the partners, yet
it is held subject trust arising by lmplcation
of law, by which it is liable to be sold and the
proceeds brought into the partnership fund, far
as is necessary to pay the debts OF the firm. "A
Metcalf. 537).
In the case ofDyer u.s. Clark, IN the same court
Is Metcaf, 562), where the subject elaborate-
ly discussed by Chief Justice Shaw, the same doc
trne was az lin laid down in the last cited
The reasoning of the learned Judge is extremely