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Argument for Plaintiffs in Error.
but, as there are no repealing words in it of any kind, shape or form whatever, the repeal of section 3460 is, if it be such, by implication only. But repeals, by implication are not favored. Harford v. United States, 8 Cranch, 109; Wood v. United States, 16 Pet. 342, 362; McCool v. Smith, 1 Black, 459; Ex parte Yerger, 8 Wall. 85, 105 ; State v. Stoll, 17 Wall. 425, 430; Arthur v. Homer, 96 U. S. 137, 140; Ec parte Crow Dog, 109 U. S. 556, 570; Chew Heong v. United States, 112 U. S. 536, 550.
Both laws took effect eo instanti, so that the act of March 24 could not have the effect to repeal the act of February 21 of the same year. Both laws went into force on the 24th day of July. On that day, at the same moment, they became laws of the State of Texas. The mandate of the State of Texas, taking effect, and therefore speaking legislatively, not from the date when it was passed by the legislature, but from the date when, under the constitution, it took effect, became law eo instanti with the act passed March 24, 1879. The two therefore are not in conflict; cannot be in conflict. Each is in force according to the fitness of its subject matter: one as regulating limited partnerships only ; the other as applicable to assignments made by individuals, commercial partnerships and corporations.
III. But if otherwise, and this were a general partnership, W. T. Tuffly had no authority to make this assignment.
His sister, Mrs. Christine E. McLin, is not shown to have been absent or incapable of action, and the assignment itself, being an act out of the common course, not one for which the firm was formed, was not within the implied powers granted to Tuflly, as it certainly was not within the express powers which the articles of copartnership confer. Moore v. Steele, 67 Texas, 435; Fore v. Hitson, 70 Texas, 517; In re Lawrence, 5 Fed. Rep. 319; Bank v. Carrollton Railroad, 11 Wall. 624.
IV. The assignment did not purport to convey the firm property or the individual property of Mrs. McLin. Such assignment, made by an ordinary. commercial partnership, and not including all the property of the assignors, both firm and
Argument for Plaintiffs in Error.
individual, was held by the Supreme Court of Texas to be void in Donoho v. Fish, 58 Texas, 164. See, also, Coffin v. Douglass, 61 Texas, 406.
V. The special partnership was invalid under the laws of Texas. Article 3442 of the Revised Statutes of Texas requires the special partner's contribution to be “in actual cash payments.” In this case this was manifestly not complied with. The contribution of Mrs. McLin was simply of the amount which her deceased hus! and had owned in the copartnership. The court was requested to charge upon this subject, but refused to give the charge, and the defendants excepted. This charge is long, but it includes nothing which breaks its force or would justify the claim that any part of it might be properly refused because too extensive, and not merely limited to the point now in question. [It will be found in the margin.']
1 • It is claimed by the plaintiff, Louis Tuffly, that the copartnership or the firm of W. T. Tufy was a limited partnership composed of W. T. Tufiy as general partner, and Christine E. McLin as special partner. It is claimed by defendants that Tuffly and said Christine E. McLin were both general partners, and that said Christine E. McLin was a general and not a special partner, for the reason, among others alleged by them, that she did not comply with the requirements of the law governing limited partnerships.
“On this question you are instructed that limited partnerships may consist of one or more persons who shall be called the general partners, and of one or more persons who shall contribute in actual cash payments a specific sum as capital to the common stock, who shall be called special partners. They are also required to make and severally sign a certificate, which, among other things, shall contain the amount of capital which each special partner shall have contributed to the common stock.
" This certificate, after having been acknowledged by the parties in the same manner as conveyances of land are acknowledged, shall be filed in the office of the clerk of the county court of the county in which the principal place of business of the partnership shall be situated. At or before the time of filing this certificate the sum specified in the certificate to have been contributed by the special partner in the common stock must have been actually and in good faith paid in cash; and if this is not so actually and in good faith paid in cash at or before said filing, then all persons interested in such partnership shall be liable for all the engagements thereof as general partners, and no payment into the fund thereafter by the special partner can relieve him from the consequences of failure to pay within the time above specified; so also the sum to be contributed by the special partner must have been actually and in good faith paid in cash, and cannot be contributed in property of any kind, however valuable it may be. If the proof shows you that Mrs. McLin's deceased husband, R. W. McLin, had a net interest, at or about the time of his death, in the firm of R. W. McLin & Co., and that, in consideration of the arrangement by W. T. Tuffly for full settlement of all claims against the said firm of R. W. McLin & Co. and the obtaining of a release of the estate of R. W. McLin from liability on account of the same, assigned and transferred to W. T. Tuffly all the goods, wares, and merchandise and other properties of said firm, and that the interest so conveyed constituted her contribution to the common stock to make her a special partner, then you are instructed that this would not be such contribution of actual cash as the law requires or contemplates, no matter what the outward form of the transaction was, and in such case Mrs. McLin would have thereupon become a general partner and liable as such, and no advance, loan, or payment thereafter made by her to W.T. Tuffly or to the firm would change her status from that of a general partner, and if you so find, then you are instructed that it was essential to the validity of the assignment that she should have joined in it and conveyed to the assignee her individual property not exempt, and that as she did not do so the assignment would be illegal and void, and that your verdict should be for the defendants.”
Counsel for Defendant in Error.
The last sentence of this charge is justified and required by Donoho v. Fish, 58 Texas, 164, Coffin v. Douglass, 61 Texas, 406, and Shoe Company v. Ferrell, 68 Texas, 638.
VI. Other unlawful preferences were created by this assignment: (1) To Mrs. McLin for borrowed money, $7798; (2) If it is to be treated as an assignment by the special partnership and the individual jointly, it is a conveyance which makes hotch-potch of the partnership and individual property, and appropriates them ratably to the partnership and individual creditors, contrary to law. Such attempt is void. If successful it would establish preference of the individual creditors. But this would render the whole assignment void. Converse v. McKee, 14 Texas, 20; Rogers v. Nichols, 20 Texas, 719; Warren v. Wallis, 38 Texas, 225; De Forest v. Miller, 42 Texas, 34.
VII. The limited partnership was not perfected by publication according to law.
Mr. W. C. Oliver, for defendant in error.
Opinion of the Court.
MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.
1. We have seen that article 3460 of the Revised Statutes of Texas declares void, as against the creditors of a limited partnership, every sale, assignment or transfer of any of its property or effects, made when such partnership was insolvent or contemplated insolvency, and with the intent to give a preference of some over others of its creditors. The first proposition of the defendants is that the assignment to the plaintiff of March 23, 1885 — which was confessedly made. by a partnership unable to meet its debts as they matured, and, therefore, insolvent, Cunningham v. Norton, 125 U. S. 77, 90 — was void, as giving a preference to consenting creditors over those who did not consent. This contention is based upon the assumption that the act of March 24, 1879, as amended by that of 1883, has no application to limited partnerships; in other words, insolvent individual debtors and insolvent general partnerships may, but insolvent limited partnerships cannot, assign their property for the benefit, primarily, of only such creditors as will consent to take their proportional share of the effects assigned, and discharge the assignor or assignors. The bare statement of this proposition suggests the inquiry, why should the legislature make any such discrimination against limited partnerships? The same considerations of public policy that require legislation under which an insolvent individual debtor and an insolvent general partnership may turn over their property to such creditors as will release their debts, would seem to have equal force in the case of limited partnerships that are insolvent or contemplate insolvency. Counsel for the defendants suggests that the reason for the discrimination - which, he insists, is made by
the statutes of Texas - is, that the creditors of a limited partnership trust only the liability of the general partner, and the fund contributed by the special partner, and when they lose recourse upon that fund they have recourse only to the liability of the general partner. We do not perceive, in this statement of the relations between a limited partnership and its credi
Opinion of the Court.
tors, any just ground upon which to rest the supposed discrimination.
The argument; that the statutes of 1879 and 1883 have no application to limited partnerships, is based upon these propositions: That those enactments do not, in terms, repeal or modify article 3460 of the Revised Civil Statutes; that repeals by implication merely are not favored; that article 3460 constitutes a part of a title in the revision, which relates — as did the act of 1846, from which it was taken — exclusively to limited partnerships; and as the recent statutes do not, in terms, refer to limited partnerships, the duty of the court is to so construe the earlier and later statutes as, if possible, to give full effect to each according to the reasonable import of its words; a result, it is contended, that cannot be attained, unless the acts of 1879 and 1883 are interpreted as not embracing assignments by limited partnerships.
We have not been referred to any decision of the Supreme Court of Texas sustainirg this view, and we cannot adopt any such interpretation. The recent enactments cover, substantially, the whole subject of assignments by insolvent debtors for the benefit of their creditors. The first section of the act of 1879 provides, as we have seen, that every assignment by an insolvent debtor, for the benefit of his creditors, shall provide for the distribution of all his real and personal estate, other than that exempted from execution, among all of his creditors, and, however made or expressed, the assignment shall have the effect, and be construed, to pass all such estate. This accomplishes all and more than was accomplished by article 3460 of the Revised Statutes. Will it be contended that this section applies only to assignments by individual debtors, and by general partnerships, and not to assignments by limited partnerships? That section, in terms, embraces “every assignment” by insolvent debtors for the benefit of their creditors. And the third section, enabling the debtor to surrender his estate for the exclusive benefit of creditors who will take their proportional share, and discharge him, embraces the case of “any debtor” who is insolvent or contemplates insolvency. The object of the act of 1879 was to encourage