Labadie v. United States

Citations

• 33 Ct. Cl. 476
• 1898 U.S. Ct. Cl. LEXIS 39
• 1800 WL 2105

Syllabus

<p>On the defendants’ Motion.</p> <p>When these cases were heard previously, the court determined that the , demurrer of the administrator of the surviving partner to the Government’s plea of set-off was had, and that the order overruling the demurrer should he without prejudice to the claim of the administrator of the deceased partner. The present motion of the Government is in effect directed against the, latter part of the order.</p> <p>I.In courts of equity the surviving partnor is regarded as a trustee, and tlie creditors of tlie firm and the personal representatives of the deceased partner are the cestui qui trust.</p> <p>II.There is injudicial proceedings a distinction taken between effects in xiossession and ohose.s in action. Eights of action belonging to the partnership belong to the surviving partners, who possess the exclusive right to reduce t-hem into possession, but when so recovered the survivors are regarded as trustees.</p> <p>III. In Indian depredations there was nothing known to the common law as property; nothing that could bo sued upon or reduced to possession. The United States were not liable; the Indian tribe was not liable. The only right, if any, was that of proceeding against the depredators individually.</p> <p>IV. Tlie liability which treaties and statutes create must bo limited by their terms. Tlie Government can not be compelled to assume an unrestricted liability which passes like ordinary property.</p> <p>V.In none of the statutes relating to Indian depredations arc creditors recognized as possessing rights. Under the Indian depredation act of 1891 they are practically excluded.</p> <p>VI.The Government by virtue of a counterclaim against, one member of a firm is simply his creditor. It can not use its counterclaim to defeat a recovery by the partnership against the Indian defendants.</p> <p>VII.The Government may recover a judgment on its counterclaim against one partner of a iirm, but the court can not deduct that recovery from th