Page:Harvard Law Review Volume 10.djvu/340

314 HARVARD LAW REVIEW. 113. There seems to be a distinction between judgments which are self-executing and judgments which require for their execution the issuance of further process. In the former class, of which disbarment proceedings are an example, the taking of an appeal leaves the judgment unaffected ; in the latter class, as, for instance, a judgment for damages, the taking of an appeal affects the judgment, for it stays the issuance of fur- ther process, without which the judgment is ineffectual. Partnership — Insolvency — Proof of Firm Debts. — X, a member of a partnership, becomes insolvent individually. The firm is solvent. Held, that, although in the distribution of assets individual creditors have preference over firm creditors, yet the latter may prove their claims and vote on the discharge of the insolvent. Knowlton, J., dissenting. Clark v. Stanwood, 44 N. E. Rep. 537 (Mass.). Approaching this question from the mercantile point of view, and regarding the partnership as a legal entity, the decision could not be supported. For on that hypothesis the firm and the individuals composing it are two distinct legal persons, and the cred- itors of one have no right to proceed against the assets of the other. Taking the common law conception of a partnership, the weight of authority is probably with the leading case, though there is much conflict. Barclay v. Phelps, 4 Met. 397, and Corey V. Perry, 67 Me. 140, are leading cases for and against the decision of the majority. The result reached by the Court involved great hardship on the individual creditors. For they were outnumbered by the firm creditors, who voted to discharge the bankrupt, contrary to the wishes of the individual creditors. It seems that inasmuch as the partnership creditors were fully protected, as the firm was solvent, they should not have been allowed to affect the rights of other parties. Partnership — Rights of Non-resident Partner. — A partnership doing business in Massachusetts was composed of two citizens of Massachusetts and one citizen of New Hampshire. A resident of the former State, while indebted to the partnership, obtained his discharge in bankruptcy under the Laws of Massachusetts. Held, that the partnership claim was not barred by these bankruptcy proceedings. Field, C. J. and Allen and Holmes, JJ. dissenting. Chase v. Hetiry, 44 N. E. Rep. 988 (Mass.). It is an undoubted proposition of law that a discharge in bankruptcy in one State does not bar actions by residents of other States on their personal claims against the debtor. The court in the principal case rest their decision on the above proposition, reasoning to the effect that, as the bankruptcy court had no jurisdiction over the partner who resided in New Hampshire, it had no jurisdiction over the partnership claim in which this non-resident partner was interested. It is submitted that this result does not follow from the rule, and that the conclusion of the judges who formed the minority is correct. It is clear that, after the debtor's discharge the Massachusetts partners lost their previous right of action. The New Hampshire partner could not bring any partnership action without joining his two associates as plaintiffs ; but they, by the express decision of a competent court, have no standing in an action against the partnership debtor. How then can the New Hampshire partner enforce the partner- ship claim ? An analogous case to the one under discussion is where the statute of limitations has run against one of several parties who are entitled to a joint action. In such cases, it is held that the action is barred. Marsteller v. McLean, 7 Cranch, 156 ; Perry y. Jackson, 4 T. R. 516. Property — Adverse Possession. — The plaintiff's boundary fence, encroach- ing on a highway, was maintained for over ten years. Held, that as the possession was with no claim of right, it was not adverse. Rae v. Miller, 68 N. W. Rep. 889 (Iowa). The decision follows the anomalous law in Iowa that claim of right is a necessary part of adverse possession. Grube v. Wells, 34 Iowa, 14S ; Donahue v. Lannan, 70 Iowa, 73. That this position cannot be supported on principle is clear, inasmuch as the right of the person ousted is the same whether the one by whom he is ousted has a claim of right or not. In either case his right of action accrues at once, and the statute declares that one cannot sue after ten years has elapsed since his right accrued. The court relies on the case of Slocntnb v. R. R. Co., 57 Iowa, 675, which lays down a similar rule in regard to possession of land on the right of way of a railroad ; but unless that case can be supported on the ground that the right of the company to the way did not accrue until it should have occasion to use it, the decision is equally indefensible. The principal case might, however, have been decided on the ground that the statute does not run against the State. Philadelphia v. R. R. Co., 58 Pa. St. 253. Although this is the general doctrine it has not yet been so decided in Iowa, and the court do not mention it, preferring to rely on the questionable doctrine concerning adverse possession that has already been established in that State.