Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-04-05

credit Of the firm, unless the power be given
otherwise than by implication from the ordi-
nary nature of the business. The evidence in
power ia Tiernan TO borrow money for
the firm. An act may be necessary
for the carrying on of the business
Of partnership. ont when done BY one
partner the firm cannot be bound by 1t unless he
has expressed or implied power to do the act.
The charge OF the court IS erroneous in that il
ASSUMES the existence of the implied power to
borrow money, because work done in the usual
course OF business may have been paid for with
money borrowed. This case well illustrates the
importance Of denying to partners in mining en-
terprises the power to borrow money on the
credit of the firm unless the power be express y
conferred by the other partners or may be fairly
.jF4eslied from the usual course OF business.
IS. h. McCheney and the Union Trust Co. VS..
Jacob Buzz ct al; Harris. Gaines, A. ]. The
Judgment is in part reversed and a decree here
rendered directing that the claim of appellee
be ciassed and paid pro rata with the general
creditors and that the claim of Milley & Dow be
classed and paid prior to the mortgage bonds
In ali other respects the Judgment is affirmed It
Is evident that the leading purpose of the mort
gage OF 1854 was to make valid and effectual what
was attempted to be done by tn al of l.S5 but il
is not clear that they were intended to cover
precisely the same property. No referenLe was
made in the laterto the previous instrument for
description. The description in the one mort
gage, therefore, cannot be aided by that in the
other. II has become settled law in this coun-
try that in the final distribution of the assets of
an iusolvent corporation which has been placed
in the hands OF receiver there are certain
claims against the fund which under certain
circumstances are entitled to priority of paw
meut over The debts of the corr Grafton secured
by mortgage upon the property. There is no
difficulty as to what is commonly known as oper-
ating expenses, and so much is conceded in this
case. The claims now under consideration are
for construction OF new road before the receiver
was appointed and for material furnished for
such construction. They accrued within sig
months before the appointment. The opiniOu in
Fcsdick vs.. Schall 80 U. S. 235l recognizes that
debts incurred for ''useful improvements'' have
as 70 the net income. preference over the mort
gage debts, By the term useful improve
meuts we understand not only necessary re-
pairs. but also such changes in and additions to
structures already completed as may be deemed
advantageous to the road in q financial point of
view, and such prudent management would
demand. When mortgages are executed uuon
al unfinished road, and show upon their face
that. II was contemplated that the work
az - construction should be prosecuted
{9sshPietion. and when the mortgages attach
BSAe new road as fast as it is finished, we are of
scpinIon that the nsw road should be considered
an useful Improvement The right OF credi-
tors having an equitable claim upon the net
earnings Of an insolvent railroad to be reim-
buTsed when these earnings have been diverted
to anOtaeT purpose, does not depend upon the
consent OF any party, but the diversion was in
deTOg3ilOn OF the rights OF those entitled to the
fund, and that therefore the money should be
restored. The mere lapse of more than a
month between the time in which the
receiver does not afford a sufficient reason for
DENYING priority to which they would other
wise be entitled. The stipulation in promis-
sorv note given for money borrowed to nav in
grTest on the bonds as follows: EsThree-fO1Jrfhs
81 the gross earnings of the road from date is
piedgcd in liquidation Of this note, can have
no legal effect. An equitable assignment can be
effected only by surrender of control over the
funds property assigned. A mere promise
that the goods shall be held in trust for the
benefit Of another, and that the proceeds shall
be paiC 10 him, does not amount 20 an equitable
assignment of the goods or q specific lien upon
them.