this as the test, the present statute cannot be supported. The right to be enjoyed under this statute is necessarily the right of each individual who exercises it to abstract from what is designed by the statute to be a common stock such portion as he can se cure, and to appropriate that to his own benefit. This is for private, rather than public, advantage. The statute does, indeed, contemplate the acquisition of the common stock by public agents, but they are to acquire it for private benefit. If the common stock thus to be acquired were capable of supplying an unlimited number of persons, then they might be deemed in a constitutional sense the public; but, as already stated, the stock would be quite inadequate for such a demand. The fact that a small supply is tendered free to the first takers does not show that the public can enjoy it. But not only does the Constitution require that the property taken should be for the public; it is also necessary that it should be for use. The chief purpose in the enjoyment of the property must be utility. But it can not be doubted that the main object of the present statute is to furnish a means of amusement or sport to the few persons who have the inclination and leisure for such pastime. The public utility to be subserved by such indulgence is imperceptible. "The reason of the case" therefore does not seem to warrant the conclusion that the proposed taking is "for public use." When we look to "the settled practice of free governments," we find no parallel for the present enterprise. There are many instances of the exercise of eminent domain for the purpose of furnishing facilities to be enjoyed by individuals; such are parks, highways, ferries, railways, telegraph and telephone lines, etc. But these differ from the right now under consideration in important respects. First, they are essentially useful; secondly, they are used by great numbers of people; and, thirdly, their use by the individual abstracts nothing appreciable from the common opportunity of use. There are also some instances of the exercise of the power in order to afford facilities for private enjoyment where it is intended that each individual shall abstract a portion from the common stock. An example appears in the condemnation of water for domestic purposes in populous neighborhoods. But here, also, marked differences from the present scheme are observable. The end sought is utility of the greatest urgency, and the natural supply is so abundant that private abstraction cannot exhaust it. In all such instances these characteristics will be found in substantial measure to make them of use to the public. We have found no instance of the exercise of the power in order to afford a means of pastime capable of being enjoyed by only a few persons. But There is another consideration deserving of some weight. The Constitution requires that on taking private property for public use just compensation should be made to the owner; and this implies that the property taken shall be reasonably capable of just estimation. The lake itself could no doubt be fairly appraised, as could, probably, the right of any individual, or of any specified number of individuals, to fish therein. I know of no criterion by which the right of an unlimited number of persons to spend their time upon the lake for the purpose of catching fish could be valued. It might be that the appraisers would evade the difficulty by awarding to the owner the full value of the lake; but in that case justice would require that the lake itself, and not a mere incidental right in it, should become public property. We think, therefore, that neither in the reason of the case, nor in the settled practice of free governments, is there legal support for the proposed condemnation. The power of eminent domain is one of the extreme powers of government. When employed for the purpose of enabling it to perform its own functions, its scope is limited only by the wisdom of the legislature. But, when it is exerted with the view of furnishing facilities to private individuals. it so easily runs into the taking of one man's property to give it to others, in disregard of that right which the Constitution declares to be inalienable,-the right of protecting property, that it behooves the courts, where private owners can be fully heard in their own behalf, to take care that constitutional rights are guarded and constitutional limitations observed. On full consideration, we are constrained to adjudge that the present proceedings are designed to take the plaintiff's property for other than the public use, and are therefore illegal. The judgment of the Supreme Court should be reversed and a judgment entered setting aside the proceedings taken under the statute. Gummere, Ch. J., and Vroom, J., dis sent. A reargument having been granted, Dixon, J., on November 14, 1904, handed down the following additional opinion: In the opinion delivered in this cause February 29, 1904 (71 N. J. L. 303, ante, 768, 57 Atl. 398), it was assumed that, if the provisions of the act of March 22, 1901 (P. L. p. 333), so far as they relate to the power of eminent domain, were unconstitutional, the proceeding under review must necessarily be illegal. This assumption was unwarranted, because the proceeding was merely an affirmance by the supreme court of the appointment of commissioners under that statute, and, as the statute purported to confer upon such commissioners other powers than that of eminent domain, it did not follow as a matter of course that their appointment would be nugatory if the attempt to delegate the power of condemnation failed. This mistake having been called to the attention of the court by an application for a rehearing, the court ordered that the following question should be argued: "Assuming that the provisions of chapter 161 of the Laws of 1901, relating to the power of condemnation, are unconstitutional, should the judgment of the supreme court in this case be reversed." This argument having been heard, the question is now before us for decision. rant the opinion that the scheme would not have been authorized without it, then the residue of the scheme will be upheld; otherwise the entire scheme will fail. Johnson v. State, 59 N. J. L. 535, 38 L. R. A. 373, 37 Atl. 949, 39 Atl. 646. The scheme designed by the statute under consideration was the acquisition by any county, at public expense, of a common right to fish in fresh-water lakes within the county. The lakes falling within the purview of the act are now private property, and, unless the power of eminent domain can be exercised, the right desired can be obtained only at such price as the owners may be willing to accept. Some counties have not more than one of these lakes, and consequently in those counties there could be no competition among private owners to keep their demands within reasonable bounds. With The act purports to authorize the acquisi- such conditions in view, the duty of the tion of the rights contemplated "by pur- legislature could best be fulfilled by providchase, gift, devise, or eminent domain." P. ing some guard against an extravagant disL. p. 335, § 2. But almost all the provi- bursement of public funds; and, for the pursions of the statute relate to the acquisition pose of discharging this duty, we think the by purchase or condemnation, and it is in- legislature intended to confer upon the credible that the act would have been counties the right to have the price fixed by passed merely to permit the acceptance of disinterested appraisers under the power of gifts or devises. The only substantial pow-eminent domain. To infer, from the attempt ers were those of purchase and condemna- to delegate an authority thus shielded from tion. The question therefore is, Should the invalidity of the grant of the power to condemn defeat the grant of the power to buy? The general rule with regard to the valid ity of a statutory scheme, some feature of which proves to be unconstitutional, is that, if the objectionable feature be not so important to the legislative design as to war imposition, a willingness to dispense with the safeguard and yet continue the authority, would be unreasonable. Our conclusion is that the vice of the condemnation provision infects the whole act. The judgment of the supreme court should be reversed, and the order appointing commissioners should be set aside. had been duly discharged in bankruptcy proceedings, where it appeared that, many years before, the parties had dissolved the firm, and the firm had, to the actual knowledge of the judgment creditor, made an assignment of all unexempt firm and individual property under a state insolvency law; and where it did not affirmatively appear that any firm assets now exist; and where it appeared that the claim was properly scheduled, and notice thereof was duly given. duly 3. Held, that the claim was scheduled on the facts here presented. A (April 7, 1905.) PPEAL by plaintiff from an order of the District Court for Ramsey County denying a motion for new trial after verdict in defendants' favor in an action brought to renew a judgment. Affirmed. The facts are stated in the opinion. III., b. continued. 2. Under bankruptcy law of 1898. Mr. James E. Trask, for appellant: Wallblom's discharge in bankruptcy did not terminate the existence of, or discharge the debt against, the partnership, or take away plaintiff's right to renew the partnership judgment in an action against Wallblom and Thorsell as partners. When the essential rights of the parties are influenced by the nature of the original contract, the courts will look into the judg ment for the purpose of ascertaining what the original contract was. Owens v. Bowie, 2 Md. 457; Second Nat. Bank v. Townsend, 114 Ind. 534, 17 N. E. 116. The National Wall Paper Company never appeared in the bankruptcy proceedings, or had any actual notice thereof. Tyrrel v. Hammerstein, 33 Misc. 505, 67 endeavoring to settle this question are obvious upon reflection. Thus, if a joint creditor were allowed to prove his claim in an individual (b) In absence of joint assets, proceeding, and receive a dividend pari passu 784. I. Scope. the Since the bankruptcy act of 1898 provides that "a discharge in bankruptcy shall release a bankrupt from all of his provable debts;" and since some of the other bankruptcy acts in England (6 Geo. IV. chap. 16, § 121; 24 & 25 Vict. chap. 134, § 161; 46 & 47 Vict. chap. 52 § 30 (2) ), and in this country (Act 1800. § 34; Act 1841, §4; Act 1867, § 19), contained similar provisions,-it has seemed necessary to include, besides decisions upon specific point which is the subject of this annotation, also those cases in which the question arises of the provability of partnership debts in individual proceedings in bankruptcy. This necessitates, of course, the inclusion of those cases holding joint debts payable out of the separate estate under certain conditions. All decisions under insolvency acts have been excluded. II. Provability of partnership debts in individual proceedings. a. Introductory. Whether partnership debts are provable in an individual proceeding in bankruptcy is a question resting in much confusion and conflict. Its solution is affected by the way the courts dispose of another question, which is the real one to be dealt with, viz., whether, and, if so. under what circumstances, joint debts are payable out of a separate estate. If they are so payable, they are of course provable in an in dividual proceeding. The difficulty the courts have experienced in dealing with this latter question has arisen largely by reason of the equity rule that the joint estate is applicable to partnership debts, and the separate estate to separate debts, and, on the other hand, by the desirability, in bankruptcy proceedings, of releasing a bankrupt from all claims against him, both joint and separate. The various complications that arose in the minds of the courts with the separate creditors, when joint assets existed, he would have a great advantage over them, since he could still resort to the joint estate, and they could not, unless a surplus existed therein; also, if a joint claim was proved against one partner individually, and a dividend received thereon, that entailed a cumbersome suit in equity on his part for contribution from the remaining partners. The theory that the assignee in the individual proceeding might, if joint creditors proved their claims therein, take possession of the bankrupt's interest in the partnership property, and then grant a dividend pari passu to all alike, was advocated by some, but held untenable by others on the ground that such an assignee could have no power or authority to meddle with partnership property. Some courts, following strictly the equitable rule of distribution, were of opinion that the joint creditor must be allowed no dividend out of the separate estate until the separate creditors were paid in full, but the hardship of this doctrine was obvious when no joint assets, or only a very small amount, existed; since joint debts are equally binding obligations upon the bankrupt as are his separate debts. The earliest rule in England, in support of which no specific decisions are found, but which is referred to by later judges, was that a joint creditor, where there was a separate commission, was to be admitted to prove his claim, but only for the purpose of assenting to or dissenting from the certificate, and receiving a dividend out of any surplus there might be beyond the amount of the separate debts. Lord Thurlow, in 1784, made a new rule, that joint debts should be provable in a separate commission, and payable pari passu with the senarate creditors out of the bankrupt's estate. which should be composed of his separate estate and his moiety of the joint estate taken possession of by the assignee in the separate proceedings. Lord Loughborough, in 1796, dissented from Lord Thurlow's rule, not being able to get away from the equity doctrine that partnership debts are payable out of the joint estate, and sepa N. Y. Supp. 717; Fider v. Mannheim, 78 | Wallblom upon his individual petition Minn. 309, 81 N. W. 2; Collins v. McWal- could no more discharge the debts of the ters, 35 Misc. 648, 6 Am. Bankr. Rep. 593, | partnership of Wallblom & Thorsell than it 72 N. Y. Supp. 203; Liesum v. Kraus, 35 could the individual debts of Thorsell. Misc. 376, 71 N. Y. Supp. 1022. Not only is the joint partnership liability of the firm of Wallblom & Thorsell unaffected by the individual discharge of Wallblom, but the individual or several partnership liability of Wallblom, which is a part of, or incident to, said joint partnership liability, is also unaffected by such discharge. It is nowhere provided in the act of Congress that the individual discharge of a person shall release the debts of any partnership of which such person may chance to be a member. A partnership is a distinct entity, and the release or discharge in bankruptcy of rate debts out of the separate estate, and also on account of the inconvenience, as it seemed to him, of a bankrupt, out of whose estate a joint debt was paid, being obliged to institute proceedings in equity against the other partners for contribution. He therefore went back nearly to the old rule, and announced that joint creditors could prove their claims in a separate proceeding, but could not receive a dividend until an accounting was had of the two estates, so that a settlement of the two classes of claims could be made according to the equity rule of distribution. Then, some decisions went still farther, and held that, if there was any joint estate at all, however trifling, the joint creditor could not prove against the separate estate, and share therein, at least until the separate debts were paid. All along, from 1785 down, there had been decisions that, if there was no joint estate in existence, then the joint creditors could prove their claims, and share pari passu with the separate creditors in an individual proceeding. Other exceptions to the denial of the joint creditor's right to share in the separate estate came to be made during that time and since, by statute and decisions. Thus, it has been held that, when partnership funds had been frandulently abstracted by the bankrupt, the joint creditors might prove against and share in his separate estate; and when the joint creditor, desiring to prove his claim, was the petitioning creditor in the individual proceeding, he was allowed to do so; so, too, when partnership assets had been assigned to the bankrupt upon condition that he meet the partnership debts. joint creditors were allowed to prove their claims against him. Therefore, if it is justifiable to draw any rule from the decisions as they stand, it is that joint debts are provable in a separate commission for some purposes, but are not payable out of the separate estate; this prohibition against sharing in the estate, however, not being applicable when there are no joint assets; when the bankrupt has fraudulently abstracted firm funds; when he has received an assignment of the partnership assets; or when the joint creditor, desiring to prove and share in the separate estate, is the petitioning creditor himself. Re Mercur, 58 C. C. A. 472, 122 Fed. 388; Strause v. Hooper, 5 Am.. Bankr. Rep. 225; Re Meyer, 39 C. C. A. 368, 3 Am. Bankr. Rep. 559, 98 Fed. 976; Re Grant Bros. 5 Am. Bankr. Rep. 837; Re Kersten, 6 Am. Bankr. Rep. 516, 110 Fed. 929; Re Barden, 4 Am. Bankr. Rep. 31, 101 Fed. 553; Re Farley, 8 Am, Bankr. Rep. 266, 115 Fed. 359. A partnership, in the eyes of the law, continues to exist as such as long as any of its debts remain unpaid or undischarged; and, until the debts of a partnership have been paid or satisfied, it cannot be said that b. In general. In 1784, Lord Chancellor Thurlow, in Ex parte Cobham, 1 Bro. Ch. 576, said that the question of the provability of joint debts against the separate estate of one of the partners had never been decided; but that he did not see why the rule applying to the case of separate creditors proving debts under a joint commission was not applicable, his only doubt being to what extent this benefit should be allowed; that it would be hard that the joint creditors should come upon the separate estate to the prejudice of the separate creditors, and still have an exclusive power of coming upon the joint estate; and, therefore, that he thought that the separate assignees might, if they pleased, possess themselves of the bankrupt's proportion of the partnership effects, and then both the joint and separate creditors could come in pari passu upon both funds. In the following year (1785), in Ex parte Hodgson, 2 Bro. Ch. 5, he held that a partnership debt was provable under a separate commission, saying that debts, whether sole or joint, ought to be paid pari passu with the separate creditors out of the bankrupt's estate. which is composed of his separate estate and his moiety of the joint estate. These cases announce what is called Lord Thurlow's rule; and for a few years thereafter the question was regarded as settled. Thus, joint creditors were admitted to prove their debts in a separate commission against one partner, and take a ratable dividend with the rest of the creditors. Ex parte Page (1786) 2 Bro. Ch. 119. It was declared settled that joint creditors might prove under a separate commission. parte Flintum (1786) 2 Bro. Ch. 120. Ex A joint creditor is entitled to prove his debt under a separate commission, taken out against one of the partners. Lord Thurlow, Ex parte Copland (1787) 1 Cox, Ch. Cas. 420. Creditors of partners on a bond for money which came to the use of the partnership were held entitled to prove their claim against the joint estate, or the separate estates, of the partners. Ex parte Clowes (1789) 2 Bro. Ch. 595. But, in 1796, Lord Loughborough, in Ex parte Elton, 3 Ves. Jr. 238, upon the ground that each estate should bear its own debts, there has been any "final settlement there- | recover, or administer the assets of any of" under § 5 of the bankruptcy act. firm of which such bankrupt may be a Re Freund, 1 Am. Bankr. Rep. 25; Remember, there having been no adjudication Noonan, 3 Biss. 491, Fed. Cas. No. 10,292; in bankruptcy against such firms. Hudgins v. Lane, 2 Hughes, 361, Fed. Cas. No. 6,827; Re Mercur, 58 C. C. A. 472, 122 Fed. 388. Neither a copartnership, nor a corporation, can withdraw its debts from the jurisdiction of the bankruptcy court by an attempted dissolution. Re Storck Lumber Co. 8 Am. Bankr. Rep. 86; Re Independent Ins. Co. Holmes, 103, Fed. Cas. No. 7,017; scheuer v. Smith, & M. Book & Stationery Co. 7 Am. Bankr. Rep. 384. The trustee in bankruptcy of an individual bankrupt is not entitled to take, hold, made a change in the rule. He admitted joint creditors to prove claims in a separate commission, but ordered the dividend reserved until an account was taken of what they had, or might have, received from partnership effects. And, again, in 1799, in Ex parte Abell, 4 Ves. Jr. 837, he held, upon the ground that the separate estate should be applied first to the separate debts, that, upon the proof of a joint debt in a separate commission, payment of dividend should be refused until the separate creditors had each received 208. in the pound. The rule thus laid down was called Lord Loughborough's rule, and was followed in a number of subsequent decisions. con Lord Eldon, in Ex parte Clay (1802) 6 Ves. Jr. 813, reviews the situation up to that time in the following language: "The rule that prevailed in Lord Hardwicke's time, and down to the time of Lord Thurlow, was. that joint creditors should not be admitted to prove under a separate commission for the purpose of receiving dividends with the separate creditors. Lord Thurlow altered that upon much sideration, thinking the joint creditors ought to be admitted with the separate creditors; and left it so when he left this court. Lord Lough borough thought that was not right, and got back again not quite to the old rule; but he settled it that they should prove only for the purpose of keeping separate accounts, but not to receive a dividend." The order was taken according to Lord Loughborough's rule. Joint creditors were admitted to prove their claims in a separate commission, and also to take dividends provided they paid the separate creditors, in Ex parte Chandler (1803) 9 Ves. Jr. 35. Joint creditors were allowed to prove their debts under a separate commission, for the purpose only of assenting to, or dissenting from, the certificate, not to receive dividends, in Ex parte Taitt (1809) 16 Ves. Jr. 196. It was declared in Heath v. Hall (1812) 4 Taunt. 326, that a joint creditor had a right to prove his debt against the separate estate of one of the partners, although he could not receive a dividend until the bankrupt's separate debts were fully paid. A partnership debt may not be proved against the separate estate of a bankrupt partner so as to come in competition with the separate credit Re Mercur, 58 C. C. A. 472, 122 Fed. 388; Re Meyers, 2 Am. Bankr. Rep. 714, 96 Fed. 408, 3 Am. Bankr. Rep. 260, 97 Fed. 757; Nutting v. Ashcroft, 101 Mass. 300; Amsinck v. Bean, 22 Wall. 404, 22 L. ed. 804; Strause v. Hooper, 5 Am. Bankr. Rep. 225. Inasmuch as a partnership is a distinct entity, and the bankruptcy act (providing the only way by which a partnership can be adjudged bankrupt) applies equally to all partnerships, whether defunct or going concerns; and inasmuch as a partnership continues to exist in the eyes of the law so long as it has unpaid debts, and the ors. Ex Parte Clark (1864) 10 L. T. N. S. 165. A provision embodying Lord Loughborough's rule was enacted in the bankruptcy act of 6 Geo. IV., chap. 16, § 62, to the effect that a joint creditor might prove his debt in a separate commission for the purpose of voting as to assignees, but could not receive a dividend out of the separate estate until all of the separate creditors were paid in full. A similar provision is contained in 12 & 13 Vict., chap. 106, 140, law of 1849. Also in 46 & 47 Vict., chap. 52, § 59 (1), law of 1883, it is provided that a joint creditor shall not receive a dividend out of the separate estate until the individual creditors are paid in full. In an American decision under the bankrupt law of 1800, which was almost a copy of the English bankruptcy law in force at that time, Lord Loughborough's rule was considered, but construed somewhat differently. The court held partnership debts provable under the bankruptcy law, without regard to whether there were joint assets or not; but that equity would restrain the collection of a dividend until it could be ascertained what, according to the equitable rule of distribution, it ought to Tucker v. Oxley (1809), 5 Cranch, 34, 3 L. ed. 29. be. Later, in Re Frear (1868) 2 Ben. 467, Fed. Cas. No. 5,074, under the bankruptcy act of 1867, it was held that joint debts were prov able in an individual proceeding, whether there were any assets of the partnership or not: and that, if such assets existed, they were to be administered according to § 36 of the bankruptcy act of 1867, which provides for an accounting of the two estates, and administration of the proceeds according to the principles of the equity rule. The So, in Re Bates (1900) 100 Fed. 263, under the bankruptcy act of 1898, a partnership debt was held provable in an individual proceeding, notwithstanding there were joint assets. court said that, whether a debt is provable depends upon the nature of the liability, and not upon whether there are assets applicable to it. It was further held that the proceeds of the two estates must be accounted for and administered according to the statute, which provided for the application of individual assets to individual debts, and joint assets to joint debts, according to the equitable rule. |