Page:Federal Reporter, 1st Series, Volume 1.djvu/555

 BUBKB ». FLOOD. 547 �by them in dividends? But the aceounting between the Consolidated Virginia Mining Company and the Pacific Wood, Lumber & Flume Company, and between the latter and Mackey and Fair, taken in the suit of Bv^ke v. The Pacific Wood, Lumber d Flume Company, would not be conclusive, for the reason that Mackey and Fair •were not parties to it, and the whole would have to be gone over again, with perhaps an entirely different result. 80, also, suppose Burke should not be able to satisfy bis decree against the Pacific Wood, Lum- ber & Flume Company and Flood, if the latter were a party to it, and should seek to enforce his judgment against Mackey and Fair upon their personal liability as stockholders under the statutes for their share of the decree, then Mackey and Fair would either be concluded by the judgment against the cor- poration for whose liability they are responaible as stock- holders, in a proceeding to wbich they were not parties, and for a claim which in suits against them individually they had defeated, or else there would have to be another aceounting. There would at ail events have to be another aceounting to ascertain their share of the liability. �Again, it is alleged in the bill that Flood, O'Brien, Mackey and Fair, during ail the time mentioned, were partners in business, and that ail the transactions complained of as to them were on their joint account as such copartners. If so, ail moneys received by them on the transactions as alleged were partnership funds — partnership assets — and must be accounted for as such. Under these allegations they are not merely joint, or joint and several tort-feasors. The act is a fîrm act — an act of a single indivisible commercial entity. The moneys received as dividends from the corporation and which are sought to be recovered were partnership funds. An account which shall be binding on the parties cannot be taken of partnership transactions without the presence of ail the partners. Each member is individually liable, it is true, for ail the obligations of the firm, but if he is compelled to pay the whole he is entitled to contribution. Whatever the rule as to contribution may be as between mere joint or joint and several tort-feasors — and there appears to be some con- ��� �