with Bramble, either written or verbal, in the nursery business, or any other; that he never held himself out as such partner, and never lent his name, or authorized the use of it by Bramble, with reference to this business, or any other, that he never knew of the letters, circulars, and envelopes written and used by Bramble until they were produced in court at the trial; that the advertisements and local notice were inserted without his knowledge or consent, and he never knew anything about them until they appeared in the papers; that he never put himself to the trouble and expense of publishing in these papers, or in any others, a contradiction of the advertisements, but had on all occasions, to town people and country people, when the subject was mentioned to him, and often when it was not, denied the existence of any partnership, and repudiated the advertisements as unauthorized by him. All this was allowed to go in without objection, but it is to be observed that he admits he knew of the advertisements which. clearly and publicly proclaimed the partnership, and never published in any newspaper any denial of it. We have said he was under no legal obligation to make publication, but that it was his duty to do all that a reasonable and honest man should do, under similar circumstances, to manifest his denial. This is the important question in the case, and it was one solely for the jury to determine. On this issue of fact he was entitled to adduce all the evidence he could, leaving it for the jury to decide whether, upon the whole of it, they thought he had done all that a reasonable and honest man ought to have done. Under this rule, he was entitled to the benefit of any evidence in corroboration of his own testimony which tended to prove the publicity of his denial. Now, in addition to his own general evidence on this subject he offered to prove: (1) By the editor of one of the papers in which the advertisement and notice appeared, that, when the witness called upon him to pay for the same, he refused to do so, repudiated all partnership with Bramble, declared he had nothing to do with Bramble's business, and would have nothing to do with his bills. (2) By the postmaster of Cambridge, that soon after the publication of the advertisements witness delivered to Fletcher certain mail-matter addressed to "Fletcher & Bramble," but he returned it unopened, and refused to accept the same, telling witness he had nothing to do with Bramble's business, and was no partner of his.. (3) That in July, 1885, he and Bramble were sued as partners by the steamboat company before a magistrate in Cambridge, on a bill for freight; that there was a crowd at the trial, and he resisted the suit, and refused to pay the account, on the ground that he had nothing to do with Bramble's business; that the magistrate gave judgment in his favor, and the case was much discussed in the community, especially by the steamboat agent, who made great complaint because the magistrate had decided in his favor.

In our opinion, these items of evidence should have been admitted. It is not for this court to pass upon their weight or effect, no mat

ter how slight or inadequate, as a denial of the partnership publicly proclaimed in the newspapers, we may deem them to be. This is a matter solely for the jury. Our duty is simply to determine the question of their admissibility as evidence, and we think the court erred in rejecting them. We are also of opinion that the agreement, or "lease," as it is called, between Fletcher and Bramble, for the land upon which the nursery was carried on, should have been admitted. It was part of the defendant's case, to prove that he was not an actual partner with Bramble. This agreement was admissible for that purpose, if he could show that by its true construction it merely created the relation of landlord and tenant between them. The errors in rejecting the items of evidence referred to requires us to reverse the judgment, and award a new trial. But, in view of the fact that the court below acting as a jury found for the plaintiffs, notwithstanding they had granted the defendant's fifth prayer, in which all his own testimony in denial of the partnership was expressly submitted to the consideration of the judges, we think each party should be required to pay his own costs, both in this court and in the court below. Judgment reversed, each party to pay his own costs in this court and in the court below, and new trial awarded.

SECTION 6.-DEFECTIVE CORPORATIONS.

BIGELOW v. GREGORY et al.

(Supreme Court of Illinois, 1874. 73 Ill. 197.)

This was an action of assumpsit, brought by Bigelow, appellant, against Charles A. Gregory, Franklin H. Watriss, Oramel S. Hough, and Reuben Hatch, as copartners, doing business under the name and style of the Warfield Cold Water Soap Company, to recover for goods sold and delivered. The defendants in the court below pleaded the general issue, and also interposed a further plea denying the partnership, verifying the same by affidavit. The cause was tried by the court without a jury, and the issues found and judgment rendered for the defendants. The plaintiff brings the record here by appeal to reverse the judgment.

From the testimony it appears that in November, 1870, the defendants, with one Isaac N. Gregory, signed a certain paper, commencing: "Articles of Association of Warfield's Cold Water Soap Company, of Milwaukee. We, the undersigned, being desirous of forming a company for the purpose of carrying on a manufacturing business, as hereinafter stated, under authority of the act of the Legislature of the state of Wisconsin relating to joint-stock companies,

approved April 2, 1858, and acts amendatory thereof, do hereby agree and certify that the name of the company is and shall be 'Warfield's Cold Water Soap Company, of Milwaukee' "-proceeding to state at length the objects of the company, the amount of capital stock, its number of shares, the term of existence of the company, the number and names of the directors for the first year, they being the subscribers themselves, how the capital stock should be paid, the signers subscribing for all the stock and agreeing to pay it as required by the directors, and concluding: "We hereby adopt the foregoing as the articles of association of said Warfield's Cold Water Soap Company, of Milwaukee, for the purpose of becoming a body politic and corporate under said name. Witness our hands, at Chicago, Illinois, this twenty-third day of November, A. D. 1870. Charles A. Gregory. Franklin H. Watriss. Oramel S. Hough. Reuben Hatch. Isaac N. Gregory."

This paper was filed in the office of the Secretary of State of Wisconsin on the 8th day of July, 1871, and in the office of the city clerk of Milwaukee August 23, 1871. It was also published in two newst papers in Milwaukee, the Guide and the Herald, September 13 and 15, 1871.

The only question here arising is whether the defendants were exempt from individual liability by reason of having become a corporation. We are of opinion that in this case, as the question here comes up, the right of the defendants to be considered a corporation depends upon their having complied with the requirements of their articles of association and the filing of the certificate. These are important acts as affects the public interest, as affording means of notice respecting the corporation to such as deal with it, so that they may regulate their action and give or withhold credit accordingly, and we think they are to be regarded as statutory prerequisites, essential to corporate existence.

The defendants are seeking escape from individual liability. Let them show that they have complied with the statute which enables them to do so, at least substantially, as respects the above-named acts. Such we regard to be the doctrine of the authorities. Unity Insurance Co. v. Cram, 43 N. H. 641; Mokelumne Mining Co. v. Woodbury, 14 Cal. 425, 73 Am. Dec. 658; Harris v. McGregor, 29 Cal. 124; Field v. Cooks, 16 La. Ann. 153; Angell & Ames on Corp. § 83. This court has never held that individuals could make themselves a corporation by the mere signing of articles of agreement. And in the language of Parsons on Partnership, p. 544, "we do not believe that a joint-stock company, or any other partnership, can limit its own liabilities and become a corporation or limited partnership by its own act and without any regard to the formalities or requirements of the law." And see Stowe v. Flagg et al., 72 Ill. 397.

Nothing had been done toward incorporation, except the signing of the articles of association, until July 8, 1871, when the articles

were filed with the Secretary of State of Wisconsin. They may be regarded, perhaps, as substantially embracing the particulars required in the certificate. The greater portion of the indebtedness sued for had been contracted prior to that time. The filing of the articles in the office of the city clerk of Milwaukee, in which place the business of the corporation was to be transacted, and the publication in the newspapers, did not take place until after August 19, 1871, when the whole indebtedness had been contracted.

We are of opinion the defendants were liable as partners, and had not absolved themselves from responsibility as such by having become a corporation.

Judgment reversed.

RUTHERFORD v. HILL et al.

(Supreme Court of Oregon, 1892. 22 Or. 218, 29 Pac. 546, 17 L. R. A. 549, 29 Am. St. Rep. 596.)

Action by James A. Rutherford and Stephen G.' Smith against J. W. Hill, R. P. Earhart, and Sherman Martin, as partners under the name and style of the Himes Printing Company. From a judgment on a verdict against them, defendants Hill and Earhart appeal.

The defendants are sued as partners under the firm name and style of the Himes Printing Company. The complaint does not anywhere allege that the defendants entered into an agreement of copartnership, but in lieu thereof the following facts are alleged: "That the defendants, on or about the 3d day of September, 1890, executed, acknowledged, and filed in the office of the clerk of the county court of Multnomah county and in the office of the secretary of state at Salem, Oregon, certain articles of incorporation as the Himes Printing Company; that the defendants, in violation of the laws for the formation of corporations subsisting in the state of Oregon, negligently failed to provide a stockbook and to secure stock subscriptions to said corporations; that, in spite of their said violation of the law, the defendants undertook to carry on the business provided for in said articles of incorporation, appointed one George H. Himes superintendent of their said business, and authorized him and the defendant Sherman Martin to represent them in all the transactions of said business; that said business was carried on under the firm name and title of the Himes Printing Company; that between May 1 and September 1, 1891, the plaintiff, at the instance and request of the defendants, through their agents, the aforesaid Himes and the defendant Martin, performed certain labor and services for the defendants, of the reasonable and agreed value of $213.14, which sum the defendants promised to pay; that the plaintiffs performed the aforesaid work relying on the credit and representations of the defendants. for their payment." Earhart and Hill answered separately, and each

of them denied every material allegation of the complaint, except they did not deny executing and filing the articles of incorporation of the Himes Printing Company. The jury returned a verdict against the defendants Earhart and Hill for the amount claimed, upon which judgment was entered, from which this appeal was taken.

STRAHAN, C. J. * * The sole question, therefore, seems to be whether or not, where three or more persons sign, acknowledge, and file articles of incorporation under the laws of this state, and do nothing further towards effecting an organization or carrying on the proposed business, and one of them assumes to do business under the proposed corporate name, and incurs liabilities, the other persons who signed said articles are liable. Appellants maintain that in such case there is no liability on the part of those who do not participate in the business either directly or indirectly, while the respondents seek to maintain the reverse of this proposition; and this contention presents the only question we need consider on this appeal.

The respondents contend that the executing and filing of the articles of incorporation, and the assumption of the corporate name by one of the parties, under which he does business, create a partnership between all the persons signing said articles, and to sustain this view. they rely upon these authorities: Whipple v. Parker, 29 Mich. 380; Jessup v. Carnegie, 44 N. Y. Super. Ct. 260; Coleman v. Coleman, 78 Ind. 346; Pettis v. Atkins, 60 Ill. 454; Smith v. Warden, 86 Mo. 382; Garnett v. Richardson, 35 Ark. 144; Lindl. Partn. 5; Abbott v. Smelting Co., 4 Neb. 416; Johnson v. Corser, 34 Minn. 355, 25 N. W. 799. Some other authorities, similar in principle to these, might be cited, but they add nothing to this side of the question. Without stopping to distinguish these cases from the one now before us, we think the decided weight of authority, as well as the better reason, is the other way. Fay v. Noble, 7 Cush. (Mass.) 188, is an early case, in which it was held that the subscribers for and holders of stock in a manufacturing corporation which has been defectively organized, and transacted business under such defective organization, do not thereby become partners, general or special, in such business. In Trowbridge v. Scudder, 11 Cush. (Mass.) 83, it was held that the stockholders of a corporation do not become liable as partners on notes given by the treasurer of the corporation merely because after organizing they transacted no business. In First Nat. Bank of Almy v. Almy, 117 Mass. 574, it was held that the members of a corporation were not liable as partners by reason of having transacted business before the whole capital stock was paid in, as required by statute. In Humphreys v. Mooney, 5 Colo. 282, in considering the question now before the court it was said: "The doctrine of a partnership liability in such case is not found in law or reason, and is repugnant to the very purposes of the statute authorizing a corporation, one object of which is to limit individual liability." Substantially the same doctrine is announced in Gartside Coal Co. v. Maxwell (C. C.) 22