Page:Federal Reporter, 1st Series, Volume 1.djvu/812

 804 FEDERAL REPORTER. �This claim is resisted by the creditors of the conjoint firm, who, under the arrangement of June 26th, were still entitled to prove against the estate of William B. Hamilton, as îndorser, any balance that may remain due them after real- izing from the assets turned over to the trustee. �The theory of Swearingen & Biggs, in this connection, is that the conjoint firm was composed, not of the two firms as partners, but of the five individu als composing these two firms, it being apparent that, if their claim is a partnership claim against Anderson, Hamilton & Co., the individual creditors of William B. Hamilton must be paid in fuU before the partnership creditors are entitled to any dividend from his estate. Wbile it is ordinarly true that a partner cannot act as such except within the scope of the partnership busi- ness, and that one member of a firm cannot take in another partner without the assent of the co-partners, stiil I see no legal difficulty in the way of treating two firms as individual partners in a conjoint firm, if such be obviously the intention of the parties. Such seems to have been the case in Cheap v. Cranmont, 4 Barn. & Aid. 663, and there are a number of cases cited in Lindley on Partnership, 995, 998, where the members of firms were treated as partners, and allowed to prove against each other, when it could be done •without prejudice to the creditors of both. It geemg to be in each case a question of intent; and, in the case under con- sideration, I think the court ought to treat the conjoint firm, for the purposes of this case, as composed of two partners, viz. : Anderson, Hamilton & Co. and Swearingen & Biggs, for the following reasons : �First. No firm name was ever adopted. Each firm contin- ued to carry on its own business and to make the paper of the conjoint firm in the name of the separate partners. �Second. The original agreement under which they became partners was signed by the two firms, and not by the indi- viduals composing each firm. �Third. The profits and losses were divided in proportions aUotted to the two firms, viz.: three-fourths to Andersen, ��� �