Before the 29th September, 1874, the journal and ledger were headed "Keystone Boot and Shoe Company." After that time the same books were used until a new journal was needed, when the word "Limited" was added to the same. The defendants in this suit are worth in the aggregate at least half a million dollars. CONCLUSIONS OF LAW.-The Act of 2d June, 1874, provided for a cash capital. (Maloney v. Bruce, 13 Nor. 249; Keystone Boot and Shoe Co. v. Schoellkopf's Sons, 11 WEEKLY NOTES, 132.) It is certain that the subscribers to the Keystone Boot and Shoe Company, Limited, had not paid their subscriptions in cash, and inasmuch as no statement with the description and valuation of property contributed has been recorded, it is also certain that the case is not within the curative provisions of the Act of May 1, 1876. We must presume that the Act of 1836, and the decisions under it were well known to the law makers at the time the Act of 1874 was passed. The omission to prescribe the penalty of liability as general partners for a failure to comply with the provisions of the last named Act, is good reason for concluding that no such liability was intended. Alike in some particulars the general purpose and intent of the two Acts are essentially different. The one provides for the formation of partnerships consisting of one or more persons, liable as general partners, and one or more persons who shall not be liable for the debts beyond the fund contributed "upon the terms with the rights and powers and subject to the conditions and liabilities" prescribed by the Act. The other authorizes the formation of what is called partnership associations "in which the capital subscribed shall alone be liable for the debts of the association except under certain circumstances" and in no instance do the excepted circumstances impose a liability as general partners on the members of the association. Such being the case are the defendants liable to the plaintiff as general partners? The counsel for the plaintiff has cited a number of cases wherein the Supreme Court has held that a failure to comply strictly with the provisions of the Act of March 21, 1836, limiting the liability of A partnership association under the Act of a special partner will render all the parties liable 1874 and its supplements, has many of the as general partners. I am of the opinion that features of a corporation; among others succesthe Act of 1836 differs in so many particulars sion of membership, annual election of managers, and that its general purpose is so essentially dif- a division of profits as dividends, a limited exferent from the Act of 1874 that the decisions istence, a statutory mode of dissolution, a comunder the former are not to be taken as conclu- mon seal, ability to acknowledge writings by its sive of the rights and liabilities of the parties chairman and secretary, ability to hold and conunder the latter Act. By the Act of 1836 it is vey real estate in the name of the association, to expressly provided that if any false statement issue and be sued by that name and by process made in the certificate or affidavit all the persons served on its chairman, secretary, and treasurer. interested in the partnership shall be liable for These features, together with the title of the Act all the engagements thereof as general partners. and the express statement in the first section, On failure to publish the terms of the partner- that the purpose is the formation of partnership ship"it shall be deemed general." A renewal associations in which the capital subscribed ́ or continuance of partnership without a compli- " shall alone be liable for the debts of such asance with the requirements for its original forma-sociation" convinces me that there can be no tion "shall be deemed a general partnership." liability of the partners as general partners when Every alteration in the names of the parties or as in this case the statement signed and recorded nature of the business or in the capital or shares is in form such as the law requires as preliminary thereof or in any other matter specified in the to the existence of the association. Doubtless a original certificate "shall be deemed a general false assertion in the statement would render the partnership." If a special partner shall interfere subscribers liable in an appropriate form of action with the business he shall be deemed a general for damages occasioned thereby; but it is only partner." A special partner assenting to or the contract rights of the plaintiff and the conconcurring in an assignment or a judgment contract liabilities of the defendants with which we fessed in contemplation of insolvency shall be have now to deal. liable as a general partner. Aside from the in- At the time of the creation of the debt in suit stances when a liability as general partner is ex-The Keystone Boot and Shoe Company, Limpressly prescribed the Act of 1836 evinces a ited," assumed to be duly organized as a partnerpurpose to hold the parties liable as such in all ship association under the Act of 1874, and was cases where its essential provisions have not been strictly complied with. The Supreme Court have so interpreted the Act of which Andrews v. Scott, is an instance. and for more than four years had been doing business as such association. The plaintiff in contracting the debt in suit dealt with the association as the "Keystone Boot and Shoe Company, Lim ited," and hence as between the parties to this suit the association must be regarded as having a de facto existence, and so regarding it I think the rule applicable to corporations is in its reason and spirit applicable here, namely: One who deals with a corporation in its corporate capacity cannot impeach its existence in a collateral proceeding by showing that conditions precedent have not been complied with (Spahr v. Farmers' Bank, 13 Norris, 429; Johnston v. Loan Association, 14 WEEKLY NOTES, 247). I think the plaintiff and other creditors have all the contract rights to which they are entitled under the law as against the subscribers to the association, when such subscribers are compelled to pay in cash the amount that they wrongfully. asserted in the recorded statement had already been paid. The remark of Justice PAXSON, in the case of Maloney v. Bruce (13 Norris, 249), that "if parties seek to have all the advantages of a partnership and yet limit their liability as to creditors they must comply strictly with the Act," is to be understood only as an accurate statement of the law of the case then before the Court, which was a proceeding under the Act of 1874 to enforce the payment of the unpaid subscriptions. If the defendants have incurred any liability by reason of the failure of the association to keep a subscription list or in the omission to use the word limited," as required by the Act, the liability thus incurred is not in my opinion that of general partners. The prothonotary will therefore enter judgment for the defendants with costs unless exceptions are filed, etc. In June, 1882, John Barnard, the defendant, was the owner of a dairy farm in Chester County, Pennsylvania. Being an old man, he conducted his affairs chiefly through his son, Enos H. Barnard; and for the purpose of giving his son full authority his business was carried on and his bank account was kept in the name of John Barnard & Son. The son, however, was not his partner, but only his agent. Being at this time desirous of obtaining a loan of money to be used partly in his business and partly in payment for a new farm which he had agreed to purchase, John Barnard applied through his son, Enos H. Barnard, to Robert S. Paschall. Paschall was at the time a reputable conveyancer, doing business in the city of Philadelphia, and had been employed by the defendant on two previous occasions for the same purpose. Paschall thereupon went to R. C. McMurtrie, Esq., who was the professional adviser of the executrix of the Morris estate, and asked if the estate would make the loan. The security having been found satisfactory the trustees of Morris agreed to make the loan, and so informed Paschall, who thereupon sent to Enos H. Barnard the following note : The Executors of the Est. of my late friend, George C. Morris, are willing to lend thee more money. was the amount thee wanted? What Should the Exr. will be willing to put the new Mt'ge on thy present farm till 4 Mo., '82, and then let it cover both properties, will it suit thee to take the money now, with the understanding that the amount now borrowed Exceptions subsequently filed to the foregoing could be loaned on first class collateral security, till 4 decision were overruled, and judgment was en-Mo. next at 4 per ct.; that would leave thee to pay one tered for the defendants. per ct. from say 7 Mo. I to 4th Mo. 1. Let me hear from thee. Agency-Fraud-The failure of a conveyancer intrusted with a duly executed mortgage to pay over to the mortgagor the money received in exchange for the same from the mortgagee, is no defence to an action on the mortgage. Sur rule to open judgment. Judgment had been entered upon a bond and warrant in the usual form, accompanying a mortgage given by John Barnard to Elizabeth Morris, executrix of George C. Morris, deceased, and by her assigned to the trustees under said will. The depositions taken under the rule showed the following facts: Thy friend, R. S. PASCHALL. To this Enos H. Barnard replied, saying:"That it was unreasonable to ask us to pay one per cent. for an amount of money and not have any benefit would pay us down $5000. We would then pay one per from it. That we would compromise the matter if he cent. for the balance till spring." Paschall informed Barnard that this proposal would be agreed to, and after some negotiation with the counsel of the Morris estate, chiefly as to how the mortgage should be drawn, so as to include the new farm about to be purchased, it was finally settled that a mortgage for $33,000 should be made on the farm then owned by John Barnard, with an agreement of mortgage of the new farm, as soon as title should be obtained. A prior mortgage was to be satisfied, and the difference between it and the new mortgage, Frank P. Prichard, contra. namely, $11,000, was to be paid in cash. Pas- Paschall himself was aware of it, or had sought chall, at his own request, was allowed to draw to produce it. Nor was there any evidence that the new mortgage, and counsel for the Morris either the executrix or the counsel for the estate estate took out the searches, etc. The first had ever held out Paschall as their agent. mortgage thus drawn and executed by Barnard Mac Veagh, for the rule. was not satisfactory to the counsel for the estate, and a second one was drawn, executed, and by Paschall delivered to N. Du Bois Miller, Esq., one of the counsel of the Morris estate, who gave him in exchange a check for $11,000 drawn to Miller's order by the executrix. Miller treating this check as money, simply indorsed it over to Paschall. Paschall in receiving this check did not remit to Barnard the whole $11,000, but in pursuance of the previous scheme, which he had represented to Enos H. Barnard, as the contract, wrote the following letter: "DEAR ENOS: Inclosed find check to thy order of this date for $4000. I having promised my man more money than the balance left after sending thee $5000, have taken the liberty of retaining the $1000. The party will return me the $1000 if thee concludes thee must have it. Will on second day send thee a statement of If the Barnards intended Paschall to obtain the money from the estate, the question of his agency is of little importance. Suppose (1) That Paschall was agent of the Morris estate, that would not excuse Barnard from payment of his bond; for where a man delivers a deed formally and duly executed to the agent of another, without receiving the purchase-money, and the agent receives the money from his principal and misappropriates it, the loss must fall on the man who, by his negligence in delivering the deed, put it in the power of the agent to commit the fraud. Kerr on Fraud, p. 91. West v. Jones, 1 Sim., N. S. 208. See also Pottsville Mut. Fire Ins. Co. v. Fromm, 4 the business. I write in haste, having had two days' Barnard is liable on his bond, because where an (2) That he was agent of both parties; then work on hand this day. agent of both parties defrauds, the burden of his fraudulent acts must be left where he placed it. Wright's Appeal, 3 Out. 425. The statement referred to in the letter, cred- (3) That he was agent of the Barnards alone, ited John Barnard with $11,000, the principal which is in accordance with all the evidence in of the new loan, charged him with $4000 paid the case; then Barnard is liable, and no impresover in cash, and with conveyancing expenses, sion that Paschall was the agent of the estate, and showed a balance due him of $6854.20, in the absence of any fraudulent representations which Paschall stated in an accompanying letter, by Paschall, can save Barnard from such liawas loaned at four per cent. on two mortgages bility. as collateral. Both the Barnards were dissatisfied at receiving only $4000 instead of the $5000, which, by the original understanding they were to receive. Enos H. Barnard repeatedly applied to Paschall for the remaining $1000, and on one occasion he received $300 on account from Paschall. On Jan. 1, 1883, a bill for six months' interest on the whole amount of the mortgage was sent to John Barnard. Then Enos H. Barnard came to Philadelphia, and discovered that Paschall had appropriated part of the $11,000 to his own use. The Barnards paid the interest due on Jan. 1, 1883, and employed an attorney to recover the money embezzled by Paschall. The Barnards testified that they were under the impression that Paschall was the agent of the Morris estate, but there was no evidence to authorize such impression, nor did it appear that Stoddard v. Ham, 129 Mass. 383. The fraud really began after the estate had completed the transaction, and had ceased to act in it. The fraud lay in Paschall's failure to pay over the $1000, and to invest, as he declared he had, the remaining $6854.20. The delivery of the bond and mortgage by the Barnards to Paschall, gave him the opportunity for the fraud, therefore, according to the rule of equity, the loss must fall on that one of two innocent parties whose act created the opportunity. Penna. R. R. Co.'s Appeal, 5 Norris, 80. WEEKLY NOTES OF CASES. the bill. No improvements had been made on these tracts, the north half of the John Lengel tract, prior to the defendants' entry. They commenced work on the 6th of October, 1879, and before the bill was filed, had cut timber, erected VOL. XV.] THURSDAY, SEPT. 18, 1884. [No. 6. a breaker and shanty, dug shafts, sunk a slope, Supreme Court. Jan. '84, 317. Leininger's Appeal. and mined and carried away coal. The Master finds that the plaintiff had no knowledge of the entry by defendants until November 22, when its 'bush ranger' went and found them at work building a frame breaker. Hoffman, the plainApril 21, 1884. tiff's engineer, heard of the defendants' operations about the middle of November, and he informed the superintendent who sent Mason, Equity-Injunction-Jurisdiction-Trespass-the bush ranger, and he gave notice to the defen Timber-Mines. dants to quit on November 22d; the bill was filed the 19th of January following." Where a party is in possession of land apparently under All the plaintiff's improvements were in claim of title, a court of equity will not, at the instance Dauphin County. The land claimed by the deof another party setting up title, ordinarily enjoin the fendants was wild land situated in Schuylkill party first named from entering on the land and exercis ing acts of ownership. It is only under peculiar circum-County assessed as unseated. It is within the stances, and when irreparable injury would otherwise be marked lines of the land claimed by the plaindone, that such relief is afforded. A. claimed to be owner of a large tract of land mostly in a wild state. B. entered on part of this tract in a wild portion thereof under claim of title derived from warrants and surveys, the lines of which were marked on the ground. A. knew that B. was intending to mine coal and cut down timber, but took no legal steps until nearly two months after such acts had been begun, and then filed a bill for an injunction: Held, that A. had an adequate remedy at law by action of ejectment and writ of estrepement, and that an injunction would not be granted. tiff. The case was referred to a Master who reported in favor of an injunction. The Court below (PERSHING, P. J.) dismissed the exceptions to this report, and made a decree in pursuance of the recommendation of the Master. Respondents thereupon took this appeal, assigning for error the action of the Court: (1) In entering the decree. (3) In not dismissing plaintiff's bill for want of equity jurisdiction over the subject-matter. (5) In not dismissing the plaintiff's bill by reason of laches on its part. Appeal of John P. Leininger et al. from a decree of the Common Pleas of Schuylkill County, perpetually enjoining the appellants from enter(7) In not dismissing the plaintiff's bill by ing upon a certain tract of land, and from cut-reason of its being an ejectment bill, and that ing upon a certain tract of land, and from cut- the plaintiff had a full and complete remedy at ting timber, shafting for coal, or sinking slopes law. thereon. "One of the plaintiff's tracts was warranted and surveyed in the name of John Lengel in 1794, and on the south end of that tract the plaintiff has a colliery. Over fifty years ago two small tracts were warranted and surveyed, one in the name of John Huber, the other in the name of William Hoch, and these are contiguous and cover the greater part of the north half of the John Lengel tract. The defendants claim that the Huber and Hoch tracts were sold for taxes, and that a good title for said tracts by divers conveyances has been vested in themselves. Their entry was on one of these tracts, and there the acts were done which are complained of in F. P. Dewees and B. W. Cumming, for appellants. Complainant could have had full redress at North Penn. Coal Co. v. Snowden, 6 Wright, 488. Tillmes v. Marsh, 17 Smith, 511. Mining has never been regarded as such an irreparable injury as not to be compensated in damages. Gilder v. Merwin, 6 Whart. 522. The acts of the respondents are continuing trespasses Munson v. Tryon, 6 Phila. 395. Kerlin v. West, 3 Gr. Ch. 449. Scheetz's Appeal, 11 Casey, 88. The law is that injunctions may issue to restrain trespassers even under color of title or right. Twort v. Twort, 16 Vesey, 130. I Story Eq. Jur., 609, 621. High on Inj., Chap. X. Merced v. Fremont, 7 Cal. 317. Amelung v. Seekamp, 9 Gill & Johns. 468. Nor need the complainant's right be first lished by law. West Point Iron Co. v. Reymert, 45 N. Y. 705. Shimer v. Morris Canal & Bkg. Co., 27 N. J. Eq. 364. Livingston v. Livingston, 6 John. C. R. 497. Shreve v. Black, 3 Gr. Ch. Rep. 177. established at law. Johnston v. Hyde, 10 C. E. Green, 454. Southmayd v. McLaughlin, 9 C. E. Green, 181. Equity will take jurisdiction to prevent the destruction of the inheritance, where the title is in dispute, and even where the possession is in dispute as to unimproved lands., West v. Walker, 2 Green. Ch. 279. In this them to their own use, trespassers are liable to pay Courts of equity may enjoin when the value of the inheritance is in jeopardy, or irreparable I mischief is threatened in relation to mines, quarries, or woodland. Injunctions are not often estab-granted against a defendant in possession, yet they are not always denied. If the defendant is out of possession and enters, or threatens to enter upon lands in possession of the plaintiff to commit acts in the nature of waste, equity is more ready to interfere. When a defendant acts or proposes to act under an assertion of right, it junction against his doing that which if he be must be a peculiar case which will justify an inthe real owner would be the legitimate exercise of a right. It is not in every case an insuperable bar to an injunction, that the defendant claims title and disputes the plaintiff's right. The Court must judge whether the circumstances of the case make it necessary to interfere by injunction. What the peculiar circumstances must be is impossible to define. These principles were expressly recognized by Justice STRONG in Munson v. Tryon (6 Phila. Rep. 395), and he held that the circumstances of that case were so peculiar as to move the Chancellor to act. He also remarked an increasing disposition in courts of equity to prevent waste or partial destruction of property, even though done or threatened under an assertion of title. But since that decision, as well as before, however it may be elsewhere, the Courts of this State have no increasing disposition to impinge the right of trial by jury in the granting of injunctions to prevent a party who claims title doing that which he has a legal right to do, if his title is valid, unless there are special reasons why he should be enjoined. Had the settled principles recognized in Munson v. Tryon been heeded rather than the observations relative to a growing tendency in courts of equity to grant injunctions against trespass in the nature of waste, the decree in the pending case would probably have been different. May 19, 1884. THE COURT. The plaintiff claims that for many years it has owned and had actual possession of thirteen contiguous tracts of land, containing thirty-two hundred acres, situate in the counties of Dauphin and Schuylkill. Upon the land it built houses, saw mills, cut timber, constructed railroads, and carried on extensive mining operations. It has three collieries and improvements necessary and convenient for mining coal. The greater part of the land is an uninclosed and unimproved wilderness. [His Honor here stated the facts ut supra.] All the plaintiff's improvements were in Dauphin County. The land claimed by defendants was wild land, situate in Schuylkill County, assessed as unseated. It is within the marked lines of the land claimed by the plaintiff, and doubtless the plaintiff had such possession of the whole as was good against a mere intruder, and if continued uninterrupted would ripen into a title under the Statute of Limitations. But if the defendants had good title they were not trespassers. Were they sued for the alleged trespass and waste, upon showing good title in themselves they would defeat the action. If they have no valid title the law gives a full and adequate remedy for their trespass, unless the injury is irreparable. For cutting timber trees and converting Here the defendants claim title to a tract of land long ago warranted and surveyed, and the lines marked. It is entirely outside the actual occupancy of the plaintiff, but not of its possession before the entry by defendants. The plaintiff, with knowledge that the defendants had taken possession and were preparing to mine coal, did not invoke injunction for nearly two |