Page:Harvard Law Review Volume 4.djvu/352

336 HARVARD LAW REVIEW, quence of Mr. Murray's own hypotheses, which he states as "three leading principles in the English law of partnership." This last objection, there- fore, falls to the ground. In the foregoing discussion, we have assumed the correctness of Mr. Murray's hypotheses as the most conclusive way of showing the incor- rectness of his rule. The hypotheses themselves, however, we are by no means disposed to admit. The "mercantile theory," so far from being "clearly opposed to the principles of the English law of partnership," is the real basis of many of the English decisions; and, though by no means openly recognized or universally applied, it is, we venture to think, the only theory on which it is possible to work out completely and satisfactorily the law of partnership. This general theory we* have not the space to discuss; suffice it, there- fore, to point out its application to the case in hand. A partnership creditor, instead of being as in number (i) above the creditor of each of the partners, is the creditor of the firm, and has no direct claim of any kind upon the separate estates of the partners. The partners, however, are liable to the firm for any deficiencies in the firm assets. This contingent liability of the partners to the firm is in fact one of the assets of the firm. The other assets of the firm are of course first applied to the firm debts. Then, in regard to the amount of firm debts which remain unsatisfied, the firm creditors must work out their rights, not directly against the separate estates of the partners, but through their debtor, the firm. For the amount of this deficiency, the firm is the creditor of each of the individual partners, and is entitled to prove against the separate estates on an equal footing with other separate creditors. This is in substance the view put forth by Mr. Cory in his Treatise on Mercantile Accounts.^ Mr. Murray sees fit to characterize it as "the operation of an accountant who is ignorant of the principles which govern the law of partnership," and as a system which "en- tirely breaks down and produces unjust results when the partners are insolvent." We have tried to show, however, in regard to this last point, not only that this system produces just results, but, further, that Mr. Mur- ray's own principles, when properly applied, produce exactly similar results. F. C. H. Mayor Matthews, of Boston, makes the interesting recommendation in his inaugural address that the whole expense of laying out new streets be charged in future upon the abutting owners. He suggests various arguments to show the expediency of this plan; but its constitutionality seems open to grave doubt. Can it be said to be a "proportional and reasonable " tax within the Constitution of Massachusetts to lay the whole burden upon the abutters without any regard to the benefit conferred upon the public at large? In Dorgan v. Boston, 12 All. 223, where the constitutionality of local assessments for improvements was upheld, the court observed that it would be plainly unconstitutional to designate a certain class of persons on whom to impose a tax, "having no regard to the share of public charges which each ought to pay relatively to that borne by all others." In State v. Newark, 37 N. J. Law, 415, a statute ^ See the passage cited by Lord Justice Lindley in his Treatise on Partnership (1888), p. 696.