The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-08-10

nary partnership, il not to be obliged certainly at
all events In the absence OF express agreement 70
that effect 10 surrender his interest In the property
to mis- remaining associates at an estimated valua
ton. but mas the right have the valuation actually
by law for closing up partnerships in the absence
OF express stipulation; yet the great dls-
parity between the amount Of stock asserting
and that dissenting and just regard for the inter-
ests Of all the parties concerned In the cOnsolldated
company lead me to the conclusion that such an
order should and, think can now be made without
disturbing the present condition OF AFFAIRS as will
make every discontinued shareholder perfectly SAFE
until final decree can be made settling and adludg
ing definitely the rights OF the parties. with wnat
vew while denying the motion for receiver anu va
eating the injunction issued, except so far as to pre-
vent any attempt to forfeit stock OF dissenting snare
holders, shall do so only on condition that
the defendants furnish bond with sureties
TO be approved BY one Of the justl fSs
final judgment, all the property which belonged
to the Merchants Union Express Company ana
which was transferred to the consolidated company,
shall, If 80 required by the judgment be delivered
into the custody OF the Court through such officer ior
that purpose as 1t may appoint and also tna IN CASE
perty shall have diminished In value, then 10 make
the same, by payment IN c1-h. up to the full value
think, will protect everybody without doing harm to
any one The plaintiffs have no absolute right,
though It Is very common and indeed most aSSal
PROPERTY Ineps has s' been ss handed over to re.
the property sold IS TO have it sold when they have
recovered Judgment All that they can claim Is that
the property shall be preserved until Judgment, 80
that their rights as then ascertaned ana declared
may be enforced. ! do not understand the case OF
Spicer w. Haresceup, decided by Judge DAILY on tue
30th Of April, to which Mr.. Sewe invited my atten.
ton after the argument to connict with the general
rule that sale Is the only method OF closing up
partnership If the partners cannot agree among
themselves upon a division or some other method l
understand Judge DAILY to have done SUD
stantially what have determined to do
SO that the plaintiT should be safe when 1nal
Judgment was obtained. TO carry my views into
effect there must be reference to James NJ sweeney
to ascertain and report all the property OF every
name and Description and the value OF each Item
which belonged to the Merchants Union Express
Company, and which transferred to the CONSOLE
dated company; and upon the coming in Of that re-
port VIII fix the amount of the bond which the
consolidated company must give as condltl0n OF
in effect constituting them receivers pendente lite.
have Intentionally avoided expressing any opinion
on the merits or the various questions discussed
before me, believing that In the view have taken
of the present necessities OF the case ought to
leave them to be disposed OF upon regu-
move Judge Allen from the partial receiver
ship which he holds. I think 1t sufficient
approving the method winch the parties took TO
procure that receivership yet IN view OF the fact
that the receiver Is the officer OF the court and
under It's control, and that the gentleman who holds
the position is personally wholly unobjectionable
and might very well have been selected for such a
trust IN perfectly h ana
for me to make any change at present. This leaves
only the case OF Fargo &C., VS.. Batchford, &C., in
which the plaintiffs seek to have the con-
solldatOn agreement confirmed and to re-
strain the suits brought to impeach It,,
aud IN which they ask the continuation Of the
preliminary injunction which has been granted. 1t
may be doubted whether that bill can be sustained
but do not think 1t necessary 10 determine the
question: because, after the disposition that have
made of the other cases and IN view OF the fact that
the defendants IN this suit can obtain any athrma-
tive relief that they may show themselves en- titled
to- whether Of the character demanded in their COM
plants IN the other cases or otherwise, and that the
litigation will be presented In more convenient
form than If conducted IN many suits, no harm can
be occasloned by continuing the injunction In this
case and therefore think 1t best not to interfere on
a mere motion with the temporary order, but to
leave the defendants to the more solemn and regu-
lar course of demurrer If they see fit instead OF
Mitigating the whole merits of the controversy, as
they can do in the convenient form which the plain
tfs afford them by this action. to insist upon their
right to O determination OF the legal objections
which they raise to the complaint.
An order TO carry these views into effect may be
prepared by either party and may be settled on
notice. and either party may make such suggestions
for my consideration as he may desire respecting the
provisions OF the bond and the order OF reference
herenbefore mentioned. The costs OF the motions
Will be cast in the causes and abide the event thereof