Damages, 4th ed. § 1144; 2 Joyce, Damages, §§ 1213, 1214, 1225. It is true a number of the authorities cited are based on actions in replevin; but there is little difference between the former action by replevin, which has been abolished by statute in the Virginias, and the action of detinue, where the plaintiff gives bond and takes the property into possession at the beginning of the action. Burk, Pl. & Pr. 2d ed. § 106; Robinson v. Woodford, 37 W. Va. 377, 16 S. E. 602.

Here the damages claimed by plaintiff accrued to it while the property was in its possession. It had the use of the automobile, and could have sold it, before there was any depreciation in value, or without incurring storage charges. It was eventually answerable only for the value of the car, under its bond. Gordon v. Jenney, 16 Mass. 465. The statute contemplates this by requiring the jury to find the value of

the property in question, as well as the right to possession. In this case plaintiff's claim did not arise by reason of defendants' actual deten tion of the property. By either use ing the automobile, or by converting it into money, plaintiff could have saved dead storage charges, and at least reduced to a minimum the depreciation claimed. The expense incurred by Replevinplaintiff and the de- bond-expense terioration claimed, of storage. were not due to any fault of petitioners, the defendants in the detinue suit, and cannot be assessed as damages against them.

We are of opinion that the trial court exceeded its jurisdiction in assessing as costs or damages the item of $146.25. As petitioners only seek to prohibit the enforcement of so much of the judgment as directs recovery of said sum of $146.25, the writ will be awarded as prayed for.

ANNOTATION.

Recovery of expenses for care or storage of property pending action of detinue or replevin. [Replevin, § 23.]

An extended examination of the authorities discloses but two cases, other than the reported case (H. P. DILS & SONS Co. v. WAUGH, ante, 89), dealing with the subject under annotation.

In the reported case it is held that a plaintiff in an action of detinue, who has given bond and has taken possession of the property in controversy, cannot, on a finding in its favor, recover as damages expenses incurred in storing the property pending the trial of the action, since it had the use of the automobile and could have sold it before there was any depreciation in value, or without incurring storage charges, as it was answerable only for the value of the car under its bond.

sonal property, together with the ancillary proceeding of claim and delivery, wherein the plaintiff recovered, an item for the cost and expense of seizing and caring for the property by the sheriff was properly allowed, the court citing a section of the North Carolina statute.

Where, in an action of claim and delivery, the plaintiff was given possession of sheep, the subject of the controversy, it was held in Cunningham v. Stoner (1904) 10 Idaho, 549, 79 Pac. 228, that, if the defendant finally recovered the sheep, the plaintiff would not be entitled, as an offset to damages given against him, to an allowance for the cost of keeping them from the time he obtained possession to the date of the judgment of the trial court awarding the sheep to that, in an action for recovery of per- the defendant (which was reversed

In Hendricks v. Ireland (1913) 162 N. C. 523, 77 S. E. 1011, it was held

Partnership, § 73 - sale to one member effect.

Where the agreement by which a partnership is dissolved includes a provision that one partner shall take over the firm assets and pay to the others the amounts respectively found due them upon an accounting, the other partners, by agreeing to this arrangement, consent to the ownership of the property passing to him, and thereby lose their lien upon it,— their right to have it applied to the payment of the sums due them. [See annotation on this question beginning on page 95.]

APPEAL by defendant from an order of the District Court for Brown County (Ryan, J.) appointing a receiver in a suit brought to recover an amount alleged to be due and unpaid for plaintiff's right, title, and interest in a partnership sold by him to defendant. Reversed.

was using the machinery in building bridges and doing road work, and that in such use it would depreciate in value-some of it very rapidly. The prayer was for judgment for $542.21, and the sale of the equipment to pay it. The action, therefore, was one brought by a creditor to subject to his claim property which was in danger of being materially injured, and therefore under the statute (Rev. Stat. § 60-1201, subd. 1) the court had jurisdiction to appoint a receiver, even should the plaintiff's position prove unfounded in law or fact. Ball v. Red Square Oil & Gas Co. 113 Kan. 760, 216 Pac. 420. The question involved, however, is not whether jurisdiction existed for the appointment of a receiver, but whether error would thereby be committed. The answer depends upon whether, under the facts stated in the amended petition, the plaintiff had a lien on the equipment. That pleading set out that on April 24, 1924, by agreement of its members, the partnership was dissolved, and an accounting and settlement had by which the defendant was to take the equipment at $8,000, and pay to the other partners the amounts due them, as already stated. The transaction with respect to the equipment is twice. spoken of in the pleading as a sale to the defendant. The schedule of liabilities and assets upon which the settlement was made contains the item: "A. F. Roberts owes company for equipment taken over, $8,000." The original petition made no reference to a lien, but alleged that the plaintiff had sold and conveyed to the defendant all his right, title and interest in the partnership, with all accounts due the firm, the defendant to pay all claims against it.

The plaintiff does not contend that an express agreement was made giving him a lien upon the equipment. His claim is that as a member of the firm he had a lien upon its assets for the amount coming to him upon a distribution.

which was not lost by what was done at the time the partnership was dissolved.

A partner has a right, which is usually spoken of as an equitable lien on the property, to have the assets of the partnership devoted to the payment of the indebtedness owed by the firm, and to what would be due to him on an accounting, before being applied to the individual obligations of the other members of the firm or otherwise disposed of. First Nat. Bank v. Schuetz, 103 Kan. 229, 173 Pac. 278; 30 Cyc. 453, 454; 20 R. C. L. 1030-1035. When the partnership is dissolved by consent, the title to the property depends upon the terms of the agreement entered into. Here the intention that the equipment should become the property

Partnership

ber-effect.

of the defendant is sale to one memclearly indicated not only by the general character of the transaction but by the plaintiff's repeated description of it as a sale to him. A purpose to limit his title by a lien in favor of his former partners is not to be implied in the absence of some expression to that effect. He could, of course, have held to his interest in the property until he was paid what was coming to him, but he was free to part with it and look only to the defendant for compensation. The fair interpretation of his pleading is that he chose the latter course. His situation is not essentially different from that of any one who sells goods without taking security. No exceptional equity grows out of the fact that here the property was disposed of to one with whom he had been in partnership, and the matter is not complicated by the claims of creditors. Typical expressions confirming this view follow:

"As between the partners, a sale of his interest by one to the other, in consideration of the promise by the purchaser to pay the firm debts, is binding, and works a conversion of firm property into separate property." Burdick, Partn. p. 122.

"The lien is lost by the conver

(119 Kan. 281, 237 Pac. 931.)

ANNOTATION.

Partner's lien on or interest in assets of partnership as affected by dissolution

agreement.

[Partnership, § 73.]

In the reported case (REYNOLDS V. ROBERTS, ante, 93), wherein it appears that a partnership was dissolved by consent, one partner by the agreement to take over the firm assets and to pay to the others the amounts found due them on an ac

Wagner v. Wagner counting, it is held that the partners

that in equity, by the very law of
partnership, the partnership effects
are pledged to each separate partner,
until he is released from all his part-
nership obligations; but that this
lien is solely under the control of the
partners; and it would follow, doubt-
less, that if the partnership be dis-
solved and the effects assigned to one
partner, this pledge, or lien is gone,
-as was held in Ex parte Ruffin
(Eng.) supra."

In Ex parte Ruffin (Eng.) supra, it

appeared that a partnership was dissolved by agreement, one withdrawing and assigning all his interest to the other, who continued the business for a year and a half, and then went bankrupt. It was held that neither the retiring partner nor his executors nor his creditors had any equity in the partnership assets.

So, in Sage v. Chollar (N. Y.) supra, it was said that, since the lien or equity which might be worked out through the partners in favor of the creditors was a lien or equity of the partners, rather than of the partnership creditors, it followed that it might be discharged by the partners. Thus, on a voluntary dissolution, it was held, one partner might agree that the partnership property should belong to his copartner, and where such agreement was made in good faith the property was held by such copartner free from any lien or equity in favor of partnership creditors.

In Wagner v. Wagner (1875) 50 Cal. 76, it was held that where a partnership was dissolved by mutual consent, the plaintiff to keep the amount already received by him as compensation as an employee, and the defendant to collect the debts due the firm and to pay the debts owing by the firm, the plaintiff had no further interest in the partnership accounts, and could not maintain an action for a settlement of such accounts.

But where the dissolution is not completed by full agreement as to the division of all the assets, it seems that the liens and rights of the partners are not lost.

Thus, in Burk v. Burk (1910) Ky., 128 S. W. 315, wherein the plaintiff was awarded a lien on the personal property of the firm, which had been contributed by the defend

ant, and the defendant appealed, the court said: "In seeking a reversal of the judgment, as above indicated, appellant insists that inasmuch as the partners had voluntarily dissolved their partnership, and each, by consent of the other, had taken back the personal property contributed to the firm, the lien the appellee would otherwise have been entitled to, to secure the partnership indebtedness to him, was lost, and that all that appellee was entitled to was a judgment for his debt. Undoubtedly, the abstract principle of law as announced by appellant is sound; but we think that the evidence in this case showed that there was not a complete dissolution of the partnership prior to the final settlement, and that, while each partner took back into his own possession the personalty contributed by him to the patrnership assets, it was clearly with the understanding that no partnership right would be lost thereby; and, this being true, appellant has no right to insist that his brother lost his lien for what the firm justly owed him, by the partial settlement of the partnership affairs."

In King v. Courson (1876) 57 Ga. 11, it appeared that a partnership had been formed between the plaintiff and the defendant, the former putting in his skill and labor, the latter putting in property. On dissolution by mutual consent it was agreed that the defendant should pay the firm debts, and that the plaintiff should give up his interest in certain of the assets, including the property brought in by the defendant as original capital. There were, however, some proceeds left undivided, but in the defendant's possession and it was held that the plaintiff had an equal interest in that property and could maintain a bill to compel a division. W. Q. F.