61 the fund.57 PERSON ON BEHALF OF DEBTOR 60 of the claims of creditors; and it is sometimes difficult to decide whether such a transaction is a true composition or merely a sale of the claims to the third person, without the incidents of a composition. It would seem to be well settled, however, that the criterion by which to decide this question is, Was the third person really acting on behalf of the debtor? If so, the transaction is a composition; 62 otherwise a mere sale.63 When a XIII. COMPOSITION BY THIRD [111] A composition may be validly effected by a third person on behalf of the debtor, whether or not that third person has any interest in the debtor's estate or business and whether or not the debtor participates in the composition, although of course the debtor will not be bound by a composition made without his assent, and may repudiate it if he chooses. A composition by a third person often takes the form of a purchase and sale 52. Teede v. Johnson, 11 Exch. | Babcock v. Dill, 43 Barb. (N. Y.) | 840, 156 Reprint 1073. 53. Small v. Marwood, 9 B. & C. 300, 17 ECL 140, 109 Reprint 112. 54. Dover v. Buck, 5 Giffard 57, 66 Reprint 921 (where a trustee for creditors under a deed of composition bona fide sold the property to a stranger, from whom he subsequently repurchased it at the same price, the sale was confirmed by all the creditors who executed the deed, and by two out of three of the assignors and a bill by the third assignor to set aside the sale was dismissed without costs).. was 55. Albany Nat. Bank v. Moore, 21 Grant Ch. (U. C.) 269 (in which a trader in insolvent circumstances made an assignment of his property to several of his principal creditors in trust for the benefit of his creditors generally. Afterward it agreed that the creditors should accept twenty per cent of their demands and discharge the debtor, whereupon plaintiffs and other creditors executed a deed to carry out this agreement. Before payment of the composition, however, the trustees reassigned the property to the on his undertaking to pay debtor the several creditors the amount of their claims, which he did pay to the trustees, but failed to pay to plaintiffs. It was held that the trustees were liable to make good to plaintiffs the sum coming to them, if the property which had been assigned to them by the debtor was sufficient to pay the amount of the composition agreed on; and that an inquiry as to this should be directed to a master if desired by the trustees). 56. Matter of Groencke, 10 Daly (N. Y.) 17. Matter of Dryer, 10 Daly (N. Y.) 8; Matter of Yeager, 10 Daly (N. Y.) 7. 58. 57. Rouse v. Hughes, 1 KyL 320. Robbins v. Magee, 76 Ind. 381. 59. In re Clement, 3 Morr. Bankr. Cas. 153 (where a composition deed contained a clause that if default should be made in paying any installment for twenty-one days, then it should be lawful for the trustees to declare the deed void by notice in writing, "and in such event the creditors shall be entitled to enforce their claims as if the said deed had never been made or executed," it was held that until trustees had given notice, a creditor under the deed was not entitled to serve a bankruptcy notice and present a petition on account of the debt due him). 60. La Touche v. Lucan, 7 Cl. & F. 772, 7 Reprint 1262, West 477, 9 Reprint 570. 61. Falconbury v. Kendall, 76 Ind. 260; Eaton v. Lincoln, 13 Mass. 424; 577; Williams v. Mostyn, 33 L. J. Ch. 54; Emmet v. Dewhurst, 3 Macn. & G. 587, 49 EngCh 453, 42 Reprint 386. 62. Mass.-Holton v. Bent, 122 Mass. 278. N. H.-Grant v. Porter, 63 N. H. 229. Oh.-Brown v. Daugherty, 8 Oh. Dec. (Reprint) 371, 7 CincLBul 239. Pa.-Patterson v. Boehm, 4 Pa. 507. Vt.-Bowen v. Holly, 38 Vt. 574. See also Bastian v. Dreyer, 7 Mo. A. 332. to [a] Illustration.-In Cobb v. Fogg, 166 Mass, 466, 468, 44 NE 534, it appeared that a firm which had failed attempted to effect a compromise with its creditors and for that purpose, in pursuance of recommendations adopted at a creditors' meeting, an agreement was prepared, by the terms of which the creditors were to accept thirty-five per cent in full satisfaction of their claims, to be paid by notes satisfactorily indorsed, and all creditors were to become parties thereto. This agreecreditors, ment was signed by many of the including the firm of Cobb & Co., plaintiffs in the suit; but fused to sign the composition fell as several of the larger creditors rethrough and was abandoned. This fact, however, was not made known to plaintiffs. After the abandonment of the composition the debtor firm executed an agreement with defendant, John S. Fogg, a creditor, by the terms of which the latter was settle the liabilities of the firm and its members "under a composition with their creditors," by selling the partnership property and reimbursing himself from the proceeds for all payments made by him for which he should become liable "under the terms of the composition." After this agreement was executed Fogg negotiated an agreement with the creditors, which was accepted and signed by a number of them, including plaintiffs, and which recited that the creditors signing it, "in consideration of thirty-five cents on the dollar of the said indebtedness of said firm to us respectively paid by John S. Fogg hereby sell and assign to the said John S. Fogg all claims, demands, and causes of action which we respectively have against said firm, or against any or either of the members thereof." The signature of plaintiffs to this agreement was obtained by representations made by Fogg's agent that it was made in pursuance of the composition first attempted, that it was necessary to carry out the composi tion, and that it was one of the instruments which by the terms of that composition plaintiffs were bound to sign. Defendant Fogg took an assignment of all the claims against the firm, paying for some of them more than thirty-five per cent, indorsed and delivered to some of the creditors, including plaintiffs, the same notes which had been prepared to be indorsed under the composition agreement, managed and disposed of the property, reimbursed himself, transferred the balance in delivered up to the firm all the claims accordance with the agreement, and which had been assigned to him, except the note which constituted the equity by plaintiffs against Fogg and claim of plaintiffs. On a bill in the members of the debtor firm to compel Fogg to deliver up the note and to obtain a decree against the firm for payment of the balance due on it, it was held that the facts warranted a finding that the transaction by which plaintiffs surrendered their note was not a sale by them composition settlement. to Fogg but was part of a 63. Harris v. Zier, 43 Wash. 573, 578, 86 P 928 [cit Cyc]; Anstey v. Marden, 1 B. & P. N. R. 124, 127 Reprint 406. "We, the undersigned, agree with Rob[a] Agreements held sales.-(1) sell and assign to him, the said Coleert G. Coleman and with each other, to man, all our respective claims and demands that we may have against Institution of St. Louis, at and for the Farmers and Traders' Savings the price of twenty-five per cent of the face of said claims and demands respectively, provided payment thereof be made us in cash on or before the fifteenth day of July, 1876. This offer to be open and irrevocable until that day." Bastian v. Dreyer, 7 Mo. A. 332, 334. (2) "We, the undersigned creditors of Hoffman & Weinberg, of Providence, Rhode Island, for valuable consideration, hereby agree with Messrs. Weinberg Brothers, of Worcester, Mass., and with each other to sell, assign and transfer unto them all our claims against the said Hoffman & Weinberg on their payment to us twenty-five per cent. thereof in cash, and their notes for twenty-five per cent., endorsed by the said Hoffman & Weinberg, at four and eight months, in equal instalments, bearing date the 1st of July, 1873. Witness our hands and seals, this 12th day of June, 1873." Goldenbergh v. Hoffman, 69 N. Y. 322, 323 [aff 7 Hun 324]. (3) In Henry v. Murphy, 54 Ala. 246, J. R. Abrams, the surviving partner of an insolvent firm, offered to surrender the assets of the firm and his indi COMPOSITION BY [112] A. Composition of Debts Due Firm. A partner may compound a debt due the firm so as to bind his fellow partners, even by an agreement under seal; and a surviving partner may a fortiori compound the claims of the firm.69 But the intent to compound the claims of the firm must be clear, and a release by a partner of all actions, claims, and demands will not release a debt due the firm, if the partner had an individual debt." 73 [§ 113] B. Composition of Claims against Firm1. In General. One partner may compound with the firm creditors; and at common law, in the absence of an express reservation, such a composition will release all the members of the firm," although the compounding creditor alone will be liable on the covenants in the deed.72 But the creditors may reserve their remedies against the other partners, and in several of the states it is expressly provided by statute that a composition with one or more partners shall not release the rest.74 When by special sealed agreement one partner authorizes the other to make a separate composition with creditors on his own behalf, and promises to pay such balance as the other should not pay or secure to them, payments thereafter made by the latter on his composition arrangement will not keep alive the liability of the noncompounding partner on his special undertaking, as against the running of the statute of limitations." 75 vidual assets to the firm creditors, in order to obtain a discharge. Subsequently one S. J. Murphy, who was one of the largest creditors, and other creditors of the firm, met together and agreed in writing among themselves to accept from Murphy fifty cents on the dollar and release Abrams. This agreement was submitted by Murphy to all other creditors, and all joined in it except J. C. Caldwell, plaintiffs' testator, who was a judgment creditor. Abrams then made a conveyance of his entire estate to Murphy on the conditions set forth in the creditors' agreement, which were recited and assented to by him in the conveyance. It was held that the agreement and conveyance, strictly speaking, did not constitute a composition, but a sale and transfer by the debtor of his property in consideration that creditor, to whom the conveyance was made, would release him from all his debts and pay a certain percentage of his liabilities. the 64. Williams v. Mostyn, 33 L. J. Ch. 54. 65. Babcock v. Dill, 43 Barb. (N. Y.) 577; Lewis v. Jones, 4 B. & C. 506, 10 ECL 679, 107 Reprint 1148. 66. Cobb v. Fogg, 166 Mass. 466, 44 NE 534. 67. Settlements, compromises, and releases generally see Partnership [30 Cyc 500]. 68. U. S.-Halsey v. Fairbanks, 11 F. Cas. No. 5,964, 4 Mason 206. La-Shaw v. Canter, 8 Mart. N. S. 689. repudiate the composition because of the fraud of the debtor or others than the third person himself;65 and the agreement between the debtor and the third person is evidence against the latter.6 AND WITH PARTNERS .76 A com [§ 114] 2. What Debts Not Discharged. position by, or in behalf of, a firm will not release the partners from their individual debts either to third persons or to the firm," or discharge a partner able to pay who conceals that fact.78 When one partner is released by a composition, but the remedies against the others are reserved, a specialty for a firm debt given by the other partner in the firm name will not be discharged where one partner cannot bind another by seal, since it is the proper debt of the one who gave it.79 [115] 3. Effect of Fraud. The fraudulent representations or acts of one partner will invalidate a composition by the firm,80 and the concealment of the existence of a partnership will vitiate a composition by one partner, and enable the creditor to sue the firm.81 [116] 4. Rights of Retiring Partner as Creditor. A retiring partner cannot claim a composition as a creditor for the amount to be paid him on retiring, and a composition note given him for that amount will be void;82 but when a partner withdraws, taking a mortgage on the firm property for a part of his interest in the firm, and a new firm is formed which makes payments on the mortgage, the retired partner, on a composition by the new firm, may retain his mortgage, and compound for the balance of the sum due him for his interest in the old firm.83 Eng-Teede v. Johnson, 11 Exch. | resist an action against him by the 840, 156 Reprint 1073; Hawkshaw v. creditor to recover the balance of Parkins, 2 Swanst. 539, 36 Reprint his claim. Molsons Bank v. Connolly, 723. 17 LCJur 189, 4 RevLeg 683. 72. Metcalfe v. Rycroft, 6 M. & S. 75, 105 Reprint 1171. [a] Action on composition. When the debtor has failed to make an installment payment as required by the terms of a composition deed, a partner who has signed the deed in the name of his firm may maintain covenant for the nonpayment, and the other partner, not being a party to the deed, cannot join in covenant. Metcalf v. Rycroft, 6 M. & S. 75, 105 Reprint 1171. [b] Agreement to accept.-It seems that a partner cannot bind the firm by a mere agreement to accept a composition. Hawkshaw v. Parkins, 2 Swanst. 539, 36 Reprint 723. 69. Brown v. Farnham, 55 Minn. 27, 56 NW 352. 70. Bain v. Cooper, 9 M. & W. 701, 152 Reprint 296; In re Garratt, 28 U. C. Q. B. 266 (holding that such a deed to be operative must provide for the separate creditors of each partner as well as those of the firm). 71. Sigler v. Platt, 16 Mich. 206; Le Page v. McCrea, 1 Wend. (N. Y. 164, 19 AmD 469; MacLean v. Stewart, 25 Can. S. C. 225; Molson's Bank v. Connolly, 17 LCJur 189, 4 RevLeg 683. See Re Walker, 2 Ont. A. 265 (holding that the only composition which the Insolvent Act of 1875 provides for in the case of an insolvent firm is one extending to all the partners, and including both the creditors of the firm and of the individual members). [a] Illustration.- Where a creditor agrees to a composition with one of two members of an insolvent firm for a debt due from the firm, and obtains security for such composition, and afterward releases the compounding debtor without the consent of the other debtor for a less amount than the composition, and surrenders the security, the other member of the firm may successfully 73. See Clement v. Brush, 3 Johns. Cas. (N. Y.) 180. Discharge of joint debtors generally see supra §§ 46-48. 74. 75. See statutory provisions. Sigler v. Platt, 16 Mich. 206. 76. Terry v. Harris, 10 La. Ann. 625 [foll Hodge v. Whitall, 15 La. 503]; European Cent. R. Co. v. Westall, L. R. 1 Q. B. 167, 6 B. & S. 970, 118 ECL 970, 122 Reprint 1451. Committee P. C. [rev 25 Can. S. C. MacLean v. Stewart, Judicial See 1 Ont. Case L. Dig. 497. 225]. 78. Yager v. Greiss, 1 Oh. Cir. Ct. 531, 1 Oh. Cir. Dec. 296. 79. Clement v. Brush, 3 Johns. Cas. (N. Y.) 180. 77. 80. Bean v. Amsinck, 2 F. Cas. No. 1,167, 10 Blatchf. 361 [rev on other grounds 22 Wall. 395, 22 L. ed. 801]; Smith v. Salmon, 7 Daly (N. Y.) 216. [a] Statements of partners.—(1) The statements of the partners are evidence against the firm and against each other on the question of fraud, although the others were not present when the statements were made. Pierce v. Wood, 23 N. H. 519; Baxter v. Hebberd, 5 NYSt 854. (2) The fact that, after composition by a firm one partner declared that the firm would make ten thousand dollars by the composition will not vitiate the agreement, if there was no misrepresentation or concealment of any material fact to induce the creditors to join. Renard v. Tuller, 17 N. Y. Super, 107. 81. Carter v. Connell, 1 Whart. (Pa.) 392. 82. Stephen v. Gavaza, 16 N. S.. 514. 83. Baxter v. Bell, 86 N. Y. 195 [rev 19 Hun 367]. 85. Ill-Chicago, etc., Land Co. v. Peck, 112 Ill. 408. N. H.-Browne v. Stackpole, 9 N. N. Y.-Chemical V. V. 95 91 any one of the parties thereto or of his personal representatives,96 either by bill in equity, asking for [§ 118] A composition agreement may be specifically enforced, if valid and subsisting," at the suit of 84. Towne v. Rublee, 51 Vt._62; | on his part, more or less gross acSt. Marys First Nat. Bank v. Wil- cording to circumstances, and savorliamson, 73 W. Va. 190, 80 SE 836; ing somewhat of bad faith or a Harland v. Binks, 15 Q. B. 713, 69 vicious indifference to the rights of ECL 713, 117 Reprint 629; Wilding others, for one creditor, not knowing v. Richards, 1 Coll. 655, 28 EngCh the facts with regard to his own 655, 63 Reprint 584; Mackinnon v. claim nor taking the trouble to ascerStewart, 1 Sim. N. S. 76, 40 EngCh tain them, to draw the other credit76, 61 Reprint 30. ors into the composition in the belief that his claim is fully and truly represented and released; and such negligence ought to preclude him from afterwards showing his claim to have been different, or throwing Kohner, 85 N. Y. 189 [rev 8 Daly doubt and suspicion upon the settle530, 58 How Pr 267]; Fellows ment on such ground. It is indisStevens, 24 Wend. 294. pensable to such settlements, and Can.-Howland v. Grant, 26 Can. that any good may come from them, S. C. 372. that this rule should be held and adhered to with regard to the representations, express or implied, of the individual creditors, respecting the amounts of their several claims and the fact that such claims were extinguished by the compromise. One creditor has no right to cast the burden of his own mistakes upon the others, or to insist that they shall suffer loss, or their pecuniary rights or interests be put in jeopardy, in consequence of such mistakes. And so strong and well sustained, in our judgment, is this principle of public policy, that we do not think the mistaken creditor should be permitted to come in at all with evidence to show his own mere mistake. We do not think the way should be open at all for him to enter and speculate as to whether other creditors may sustain loss or be injured by reason of his being allowed to correct or to take advantage of his own mistakes. The presumption, conclusive in its nature under the circumstances, is, that the other creditors will be so injured. To open the door for particular inquiry into the facts regarding the situation and rights of the other creditors, and to make the right of the mistaking creditor dependent on those facts, would lead to most tedious, complicated and expensive investigations and controversies; and sound public policy is clearly against it"). Ont. Bank of Commerce v. Jenkins, 16 Ont. 215. [a] Illustration.-A judgment creditor, in a general composition between the debtor and creditors, accepted bonds secured by deed of trust in lieu of his judgment and gave an order to his attorney to satisfy the same, on the faith of which other creditors surrendered their securities and also accepted bonds so secured, and the judgment creditor acquiesced in such exchange for about three subsequent litigation years. where it was material to the interests of the other creditors that the transaction should stand, it was held that he was estopped from repudiating his action, and could not have it canceled merely on the ground that he did not understand the terms of the trust deed securing the bonds, and his Chicago, judgment was set aside. etc., R. Land Co. v. Peck, 112 Ill. 408. In 87. Robert v. Barnum, 80 Ky. 28; Coon v. Stoker, 2 NYSt 626. But see Dale v. Fowler, 12 HowPr (N. Y.) 462 (holding that, where some of the creditors had agreed to accept a composition, but the debtors subsequently assigned for the benefit of their creditors, they thereby waived their right to the composition, and remitted themselves to their original indebtedness). Bolt v. Lee, 16 RevLeg 53. Fellows v. Stevens, 24 Wend. (N. Y.) 294. tracts generally see Specific Perform93. Specific enforcement of conance [36 Cyc 5281. 94. Bartleman v. Douglass, 2 F. Cas. No. 1,073, 1 Cranch C. C. 450; Phillips v. Bergen, 8 Barb. (N. Y.) 527 [aff 2 Barb. 608]; Powles v. HarCh 336, 43 Reprint 169. greaves, 3 De G. M. & G. 430, 52 Eng [a] For example (1) a bill will lie to enforce an agreement for the sale of a debt (Cutting v. Dana, 25 N. J. Eq. 265; Adderley v. Dixon, 1 Sim. & St. 607, 1 EngCh 607, 57 Reprint 239), or (2) to enforce an agreement between a creditor and a third person, founded on a valuable consideration, to compromise the claim of lips v. Bergen, 8 Barb. (N. Y.) 527 the former against his debtor (Phil[aff 2 Barb. 6081). 95. Clarke v. White, 12 Pet. 178, 9 L. ed. 1046 [aff 29 F. Cas. No. 17, 540, 5 Cranch C. C. 1021; Lobdell v. Nauvoo State Bank, 180 II. 56, 54 NE 157 [aff 78 Ill. A. 600]; Only V. Walker, 3 Atk. 407, 26 Reprint 1035: Synnot v. Simpson, 5 H. L. Cas. 121, 10 Reprint 844. com [a] A devisee who has pounded with a creditor of his testator may enforce the agreement. Only v. Walker, 3 Atk. 407, 26 Reprint 1035. V. [b] A creditor can file a bill to carry the trusts of a composition into execution. Lobdell Nauvoo State Bank, 180 Ill. 56, 54 NE 157 [aff 78 I11. A. 600]; Field v. Donoughmore, 2 & Wal. 630; Synnot v. Simpson, 5 H. L. Cas. 121, 10 Reprint 844. Dr. [c] Delivery up of evidence of debt.-(1) The debtor or those in privity of estate may compel the creditor to deliver up the evidences of his claim as agreed in the composition, on payment of the amount of the composition (Clarke v. White, 12 Pet. 178, 9 L. ed. 1046 [aff 29 F. Cas. No. 17,540, 5 Cranch C. C. 102]; Only V. Walker, 3 Atk. 407, 26 Reprint 1035), (2) unless they were passed away before the composition (Clarke v. White, supra). 86. Jones v. Wright, 71 Ill. 61; Johnson v. Parker, 34 Wis. 596. deed Amount of claim. No cred[a] itor can, on the ground of mistake as to the amount of his claim or the condition of the security therefor, avoid an agreement of composition, made on consideration of the like agreement of the other creditors, although there has been no meeting of the creditors nor a formal promise to abide by the agreement. Johnson v. Parker, 34 Wis. 596, 605 (where Dixon, C. J., said: "This court is of opinion that agreements of the kind cannot be impeached on such grounds. We think that the principles of public policy forbid it; for it is manifest that all confidence in such arrangements, and all the benefits to be derived from them, would be destroyed if it were otherwise. No creditor could enter into them or into subsequent business transactions with the debtor, with any assurance of safety, if such grounds of impeachment were held to exist. The relations of confidence between the different compounding creditors are such, and their rights and interest have become SO interwoven and 89. Packard v. Ober, 26 La. Ann. bound together by the act of com- 424. See also supra § 80. But see promise, that each one should be and Irving v. Humphrey, Hopk. (N. Y.) is estopped from denying the validity 284 (holding, where a debtor overof the agreement for causes like this. stated the amount of his confidential For the peace and safety of all con- debts, which were to receive a prefcerned, each one must be held con- erence, and the creditors received the cluded by his own mistakes so com- benefit of the composition, that a remitted. It is a species of negligence lease given by the creditors should 88. Howland v. Grant, 26 Can. S. C. 372 (holding that the debtor's assent to a rescission by one creditor and the grant of better terms to him would be a fraud on the other creditors, and as such inoperative and of no effect). 96. Pollen v. Huband, 1 P. Wms. 751, 24 Reprint 598. See Matter of Leslie, 10 Daly (N. Y.) 76 (where, after the filing of an assignment for the benefit of creditors, nearly all the creditors of the assignee executed an instrument empowering a committee of themselves to control and manage, compound and release their claims, and consenting that the business of the assignor might be continued by the committee themselves, or through the assignee or others. The business was carried on for a time by the assignee, and a dividend was paid by him to the creditors out of the proceeds. Subsequently an arrangement was entered into be affirmative relief,97 or by a bill for an injunction to prevent an attempted violation of the agreement for which there is no adequate remedy at law.98 But a composition will not be enforced when made by an agent without authority,99 when the agreement does not comply with the requirements of the statute of frauds,' when all conditions are not complied with,2 or when the debtor who seeks to enforce it has given a fraudulent preference to another creditor.3 A separate agreement securing a secret advantage to some of the creditors will not be enforced. A composition may be enforced after the death of the debtor by his personal representatives but not by creditors who were not parties nor intended to be benefited by it." *COMPOSITIO ULNARUM ET PERTICARUM. The statute of ells and perches. The title of an English statute establishing a standard of measures.1 COMPOS MENTIS. Literally "Sound of mind." Having use and control of one's mental 386. 1. Emmet v. Dewhurst, 3 Macn. & G. 587, 49 EngCh 453, 42 Reprint 386. 2. Acker v. Phoenix, 4 Paige (N. Y.) 305. 3. Child v. Danbridge, 2 Vern. Ch. 71, 23 Reprint 655. 4. Mawson v. Stock, 6 Ves. Jr. 300, 31 Reprint 1062. 5. Matter of Leslie, 10 Daly (N. Y.) 76. tween the committee, on behalf of & G. 587, 49 EngCh 453, 42 Reprint [a] The executor of the debtor can enforce specific performance of the agreement of a third person to indemnify him against his creditors. Pollen v. Huband, 1 P. Wms. 751, 24 Reprint 598. 97. U. S.-Clarke V. White, 12 Pet. 178, 9 L. ed. 1046 [aff 29 F. Cas. No. 17,540, 5 Cranch C. C. 102]. Ill.-Lobdell v. Nauvoo State Bank, 120 Ill. 56, 54 NE 157 [aff 78 Ill. A. 600]. N. J.-Cutting v. Dana, 25 N. J. Eq. 265. N. Y.-Phillips v. Berger, 8 Barb. 527 [aff 2 Barb. 608]. Eng.-Only v. Walker, 3 Atk. 407, 26 Reprint 1035; Powles V. Hargreaves, 3 De G. M. & G. 430, 52 Eng Ch 336, 43 Reprint 169; Field v. Donoughmore, 2 Dr. & Wal. 630; Synnot v. Simpson, 5 H. L. Cas. 121, 10 Reprint 844; Pollen v. Huband, 1 P. Wms. 751, 24 Reprint 598; Adderley v. Dixon, 1 Sim. & St. 607, 1 Eng Ch 607, 57 Reprint 239. 98. Blodget v. Hogan, 10 La. Ann. 18; Gibbon v. Bellas, 2 Phila. (Pa.) 390; Fawcett v. Gee, Anstr. 910, 145 Reprint 1079; Cecil V. Plaistow, Anstr. 202, 145 Reprint 844; Spurret V. Spiller, 1 Atk. 105, 26 Reprint 69; Constantein v. Blache, 1 Cox Ch. 287, 29 Reprint 1169; Jackman v. Mitchell, 13 Ves. Jr. 581, 33 Reprint 412, 12 ERC 321. Injunction against enforcement of preference see supra § 89. 99. Emmet v. Dewhurst, 3 Macn. 6. Garrard v. Lauderdale, 2 Russ. & M. 451, 11 EngCh 451, 39 Reprint 465 [aff 3 Sim. 1, 6 EngCh 1, 57 Reprint 901] (where a person by deed conveyed to trustees certain personal property, on trust to sell the same, and after satisfying certain specified charges and claims out of the proceeds, to divide the residue among his scheduled creditors, none of whom were parties or privy to the execution of the deed, and the trustees, after partially executing the trusts by making sales and paying off the specified charges and claims in the order directed, concurred with the grantor in doing several acts inconsistent with the subsequent trusts, it was held that after the death of the grantor a scheduled creditor had no equity against the trustees to enforce the execution of the trusts, the conveyance being in the nature of a private arrangement for the personal convenience of the grantor and vesting no right in the creditors). 1. Black L. D. 2. 3. Black L. D. See generally In- Fracture see Compound Fracture post Interest see Compound Interest post Larceny see Larceny [25 Cyc 12]. Plea see Compound Plea post p 310. Explosive compound see Explosives 5. Standard D. [quot U. S. V. Weeks, 225 Fed. 1017, 1019]. 6. Webster D. [quot Rose v. State, 11 Oh. Cir. Ct. 87, 91, 5 Oh. Cir. Dec. 72]. [a] Similar definition.-"Anything that is a combination of two or more elements, ingredients or parts." Standard D. [quot U. S. v. Weeks, 225 Fed. 1017, 1019]. are [b] Liquors." Compounds' liquors produced by the union of several ingredients, with spirits as the base." Block v. Lewis, 5 OhS& CP 370, 5 OhNP 392. or [c] Mixtures or compounds recognized as food.-In construing a statute against adulteration of foods containing a proviso that it should "not apply to mixtures or compounds recognized as ordinary articles of food, or ingredients of articles, if each and every package sold offered for sale be distinctly labeled as mixtures or compounds with the name and per cent of each ingredient therein," and are not injurious to health, the court said: "A fair interpretation of the meaning of the words 'mixture' and 'compound' in the statute, is something resulting from the putting together of parts or ingredients other than as nature has put them together in the fruits of the earth." Rose v. State, 11 Oh. Cir. Ct. 87, 92, 5 Oh. Cir. Dec. 72. [d] Food extracted from natural fruit-An article of food which is produced by abstracting from the natural fruit a valuable part, such as the extracting the oil of the cocoa bean for the manufacture of cocoa, is not a "compound" or "mixture,' under the acts of March 20, 1884, as amended April 22, 1890, prohibiting the adulteration of foods. State, 11 Oh. Cir. Ct. 87, 92, 5 Oh. Cir. Dec. 72, 74. Rose v [e] The term "Compound White Pepper" does not so naturally imply to the average purchaser a mixture of white pepper with an ingredient other than pepper as to make it a proper branding, where the statement of its ingredients is so placed and in such type as not to be readily noticed by the purchaser and as to be calculated and intended to deceive and mislead the latter. Frank v. U. S., 192 Fed. 864, 866, 113 CCA 188. [f] "Fruit Wild Cherry Compound."-Where a package labeled "Fruit Wild Cherry Compound" contained an imitation of wild cherry essence in part for the genuine fruit wild cherry, there was no violation of the Food and Drugs Act by misbranding, since the word "compound" was a noun indicating that the fruit wild cherry was in composition or combination with something else. U. S. v. Weeks. 225 Fed. 1017. 1019. [g] Compound of pyroxylin.-Umbrella sticks of wood having celluloid handles are not subject to duty under par 17, schedule A § 1 c 11, Tariff Act July 24. 1897, 30 St. at L. 152, imposing a duty on articles of which any "compound of pyroxylin" is the component material of chief value, notwithstanding the handles made of collodion constitute the chief value. U. S. v. Borgfeldt, 124 Fed. 304. [h] Atomic association in a single molecule indicated. In an action involving a claim in a patent, reading, "as a new article of manufacture, a compound of the crystallizable blood pressure raising constituent of the suprarenal glands substantially free from noncrystallizable constituents thereof, which is soluble in water, By WARREN LEE KINDER (Compositio Ulnarum et Perticarum-Compound Fracture inclusive).. ments, parts, or ingredients, not simple;" a and which when in water solution is practically inert to the oxygen of the air," etc., the court said: "Chand- | ler, especially when dealing with Von Furth's zinc sulphate, lays especial stress upon the word 'compound' as indicating atomic association in a single molecule, an interpretation which would here result in making Abel's salts an anticipation. It is so used in the eleventh edition of the Encyclopedia Britannica, sub tit. Chemistry, and I think it must be So understood in the claim." Parke-Davis y. H. K. Mulford Co., 189 Fed. 95, 97, 110 [aff 196 Fed. 496, 116 CCA 262]. 7. Century D. [quot Rose v. State, 11 Oh. Cir. Ct. 87, 91, 5 Oh. Cir. Dec. 72]. 8. Standard D.' [quot U. S. V. Weeks, 225 Fed. 1017, 1019]. 9. Frank v. U. S., 192 Fed. 864, 869, 113 CCA 188. 10. U. S. v. Stone, etc., Co., 175 Fed. 33, 37, 99 CCA 49. 11. U. S. v. Stone, etc., Co., 175 Fed. 33, 37, 99 CCA 49. a [a] Different uses in pharmacy and chemistry.-"The term 'compound' signifies in chemistry a substance formed by a chemical union of its constituent elements, and never simple mixture in which a chemical union of the ingredients does not occur. In pharmacy, on the other hand, a 'compound' is merely a mixture of different ingredients, without reference to chemical union; and the word 'compounded' is employed in ordinary and common use in pharmacy to indicate something formed by a mixture of ingredients without chemical union." U. S. v. Stubbs, 91 Fed. 608, 609. Illustration.-In 12. Webster Int. D. [quot U. S. v. Stone, etc., Co., 175 Fed. 33, 37, 99 CCA 49]. [a] Tariff the Act of July 24, 1897 (30 U. S. St. at L. 151 c 11 § 1 schedule A par 2), relating to alcoholic compounds, the word "compound" is not limited by any trade usage or technical adaptation, but is used in its common broad sense of being any union or mixture of elements, ingredients, or parts, as fine-cut herbs commingled with alcohol and constituting to some degree | an infusion. U. S. v. Stone, etc., Co., 175 Fed. 33, 37, 99 CCA 49. 13. U. S. v. Stone, etc., Co., 175 Fed. 33, 37, 99 CCA 49. 14. Frank v. U. S., 192 Fed. 864, 869. 113 CCA 188 [quot U. S. V. Weeks, 225 Fed. 1017, 1019]. 15. Frank v. U. S., 192 Fed. 864, 869, 113 CCA 188. 16. U. S. v. Stubbs, 91 Fed. 608, 610. [a] To "compound" a prescription is to prepare it for use, or to put together the different articles specified in the prescription so as to be fit for the patient; and this is the ordinary and common use of the word with druggists. U. S. v. Stubbs, 91 Fed. 608, 610. Compounding.2 The present participle of the verb "compound.'' 21In one sense, arranging, coming to terms.22 and Cómpounded. As employed in ordinary common use in pharmacy the term indicates something formed by a mixture of ingredients without chemical union.23 COMPOUND COMPRESSED AIR ENGINE. An engine in which the compressed air is first used in a high pressure cylinder; that is, in a cylinder 17. Black L. D. [quot Williams- | is satisfied, it is a compounding, Thompson Co. v. Williams, 10 Ga. A. 251, 253, 73 SE 409; Idaho First Nat. Bank v. Malheur County, 30 Or. 420, 426, 45 P 781, 35 LRA 141]; De Buhr v. Thompson, 134 Mo. A. 21, 114 SW 557. [a] Illustration-The word "compound" in Rev. St. (1899) § 897, Annot. St. (1906) p 831, allowing a creditor to compound with debtors and release them from further liability, means the same as "compromise,' so that there must be consideration for the compounding. De Buhr v. Thompson, 134 Mo. A. 21, 24. 114 SW 557. 18. Black L. D. [quot whole or in County, 30 Or. 420, 45 P 781, 783, 35 19. Black L. D. [quot Williams- [a] "To compound a debt is to abate a part, on receiving the residue. To abandon the whole cannot, in any grammatical or common use of the word, be said, or considered to be a composition with the debtor." Haskins v. Newcomb, 2 Johns. (N. Y.) 405, 408. 20. Compounding: Action for penalty see Penalties [30 With creditor see Compositions with Creditors ante p 249. See also Compounding Offense post p 309. 21. Webster Int. D. or or [a] The manufacture of buchu gin by pouring pure gin on a bed mat of buchu leaves and allowing it to percolate through; then adding distilled water and syrup, the gin comprising some fifty per cent more of the compound, which is forty-six per cent alcohol and designed for use as a beverage, constitutes a "'compounding' or 'adulterating' within St. (1909) § 4114A et seq, imposing a license tax of one and one-quarter cents a wine gallon on such business. Dr. C. Bouvier Specialty Co. v. James, 133 Ky. 580, 582, 118 SW 381. 22. Wharton L. Lex. [a] Entering into stipulations of satisfaction.-Within 5 & 6 Vict. c 122, relating to the filing of an indebtedness by a debtor summoned by his creditor, and requiring in section 14 that the debtor, within fourteen days after filing his admissions, shall pay or tender to his creditor the amount of the debt or secure or compound for the same to his satisfaction, "compounding" means an entering into stipulations with the creditors which they are satisfied with at the time. "If there is a binding arrangement for discharge of the debt, from which neither party can recede, and with which the creditor though something still remains to be 609. U. S. v. Stubbs, 91 Fed. 608, [a] "A compound drug, (1) is a drug made up of other articles, drugs or chemicals mixed together, by trituration, by rubbing together, or by dissolving, etc. Such an article is not a single definite chemical substance, but 'compounded' by the mere mixture of two or more chemical substances, each of which retains its own separate properties, which is not true of a chemical compound." U. S. v. Stubbs, 91 Fed. 608, 609. (2) It has been held that camphorated oil regulating the sale of food and drugs. is a compounded drug, under an act Beardsley v. Walton, [1900] 2 Q. B. 1, 4. [b] "Compounded" and "uncomPounded" unknown in chemistry. While the term 'compound' is in common use in chemistry, as in such phrases as a chemical compound,' or 'a compound formed,' etc., etc., the words 'compounded' and 'uncompounded' are chemical science, and are neither wholly unknown to found in chemical text-books nor used in the chemical laboratory." U. S. v. Stubbs, 91 Fed. 608, 609. [c] Medicinal articles compounded. -(1)_The provisions of War Revenue Act June 13, 1898, 30 St. at L. 456. $20, that the stamp taxes provided medicinal articles compounded by any for in schedule B "shall apply to all formula published or unpublished," but that they shall not apply to any uncompounded medicinal drug or chemical, contemplate a compound made after some formula, whether published or unpublished. Johnson v. Herold, 161 Fed. 593, 604 (where the court also said: "The classes G under consideration have to do with the drug papain, and the evidence establishes that there is no formula by which papain can be made. It is prepared from the juice of the pawpaw plant. It is a natural product, and the evidence shows that nothing but nature can produce it. Papoid is a name for the simple drug papain, and it is not compounded. It may be a chemical compound, but it is not compounded by chemists or pharmacists, after a formula or otherwise; nor can it be. If its constituent elements were resolved by chemical analysis, they could not be reunited to form papain. The evidence conclusively establishes, to my mind, that papoid is the simple drug papain, the purified juice of the pawpaw plant, and that it is uncompounded. Classes G, however, embrace also papoid tablets and papoid pills. These tablets and pills are composed of the simple drug papain in the powder form, mingled with an excipient to hold the powder together |