think they are fully justified in doing all that they have done, and such was the opinion of the circuit judge.

They are men of ability, of good business capacity, and whose integrity is beyond reproach. The good faith of these men is not questioned, and no fraud is imputed. They have been active and vigilant in their efforts to properly discharge the trust, and the only question is, having been diligent in the business committed to their charge, and acted upon their best judgment in the premises, and in accordance with the judgment of all the creditors, save the complaining firm, will the law sustain their doings? My brethren think not, and I cannot agree with them.

As to the general rule, I concur with them, and I agree with my Brother CHAMPLIN that "it is obviously the duty of the assignees to proceed without unnecessary delay to convert the property assigned into money, and apply the proceeds to the payment of the debts. In the management and care of the property they are bound to use the same care, and exercise the same degree of prudence and caution, that a prudent man would with his own property;" and the same statute which allows the plaintiffs in this case, authorizes the circuit judge "to make all necessary and proper orders for the management and disposition of the assigned property;" and my learned brother admits that, with the consent of all the creditors, the assignees might lawfully do all they have done.

It is conceded, then, and I think it must be by all, that there are exceptions to the general rule. This being the case, a large discretion must necessarily be left with the assignee. This was so at the common law, and that the statute contemplates the use of such discretion is clearly apparent in the fact that a supervisory power over its use is given to the circuit court, in chancery, in the proper county; also in the fact that the assignees are required to give bonds for "the prompt and faithful administration of the trust," in a sum double the value of the assigned property: How. Stat. § 8740. That the assignee may, under certain circumstances, conduct the business for a time which was being

60 MICH.-37

carried on at the time the assignment was made by the assignors for the benefit of the estate and creditors, is, I apprehend, well settled, both upon reason and authority: Burrill Assignm. 490, 491; Woodward v. Marshall, 22 Pick. 468; Mussey v. Noyes, 26 Vt. 462; Patten's Estate, 2 Pars. Sel. Cas. 108.

I know of no degree of caution, care, or prudence which permits a person, as my trustee, to sell and dispose of my property at a sacrifice of one-third or half of its value, unless compelled so to do; and there is no such necessity resting upon assignees; neither ought such action to be tolerated by courts. And I do not think it lies in the power of a creditor who holds a claim to the amount of only oneeightieth part of the indebtedness against the estate to defeat the action of the assignees, when their management of the insolvent's assets is for the best interest of the insolvent estate; and I know of no law or decision which will allow the judgment, wishes, or desire of such a creditor, through the action of any court, to usurp the functions of the assignees to the extent claimed, unless it shall be made in this case, and which I think ought not to be done.

It is true, as is said by my brethren, that the law does not allow the assignors to provide in the assignment for a continuance of the business; but that is not because a continuance may not be needful for the time being, and for the best interest of the estate, but because the action and direction of the assignors in the business is one of the things to be gotten rid of in making the assignment. It has no connection with what may or ought to be done in the future by the assignees.

No statute is necessary to authorize the continuance of the business for such time as may be necessary to close up the estate for the best interest of the creditors. The fact that the law requires the exercise of good judgment and business management in controlling the assets is sufficient authority upon that point. Each case must depend upon its own circumstances as to the course proper to be pursued, and the rules which should govern in closing up an estate con

sisting of a thousand dollars' worth of dry goods or groceries, which may be disposed of in a week, and which are continually depreciating, are not to be applied to an estate valued at a half million dollars, consisting of large tracts of valuable pine timber and farming lands, constantly increasing in value, with a saw-mill worth $40,000, and tram-ways and railroads connecting the two, and large quantities of lumber on bond to be sold, the entire estate requiring at least three or four years in which to dispose of, it to any advantage to the estate, as in the present case; and no prudent business man would think of giving the two cases the

same treatment.

It is true pine timber and pine lumber have a market value in the regular course of trade in that business; but can any one say the saw-mill and its equipments, the tramways and railroads, have, or that any or either, or all of them together, with the pine timber and lumber included, have, when disposed of at forced sale for costs? I know of no such market value; neither am I furnished with such information by the record. But very few persons are prepared to purchase that kind and amount of property for cash, at any price, even such as might be obtained at syndicate biddings. I do not think it would be the exercise of good judgment or good management to dispose of such property in such manner, and these assignees have not done it.

It was good management, in my judgment, for the assignees to hire money and redeem the pine lands (in which consisted the bulk of the assets of the insolvent estate) from forfeiture, and I think this is clearly shown by the testimony; and I am unable to find from the record that any of the assets have been applied to the payment of any indebtedness except that which, under the assignment and the law as it now stands, would be required to be paid in full; and it does appear, I think, very clearly, that the estate applicable to the payment of all the pro rata creditors has been largely increased by the course pursued by these assignees. Upon the merits of the complainants' case, as presented, I

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fail to discover any good reason why the action of these
assignees should be interfered with. On the contrary, I
think they have used their judgment and discretion wisely,
and in a legal and proper manner.
But little over two years

had elapsed when this suit was commenced. The doings of
the assignees have been open to all parties interested in this
estate. A large number of creditors have undoubtedly
watched closely all that has been done, and it seems a strange
thing, indeed, that the complainant firm is found to be differ-
ing with all the rest of the persons in anywise interested in
the property and its management. Only one thing is more
astonishing to me, and that is upon the face of this record
my brethren feel impelled to accede to the views of the com-
plainant. In my judgment, a reasonable time has not yet
elapsed within which this estate should be closed, against the
advice and judgment of both assignees and assignors, and all
the other creditors, except this one, whose interest is secured
by an unquestioned bond, and the extent of which is only
one-eightieth part of the amount to be eventually distributed.

Where neither fraud nor bad faith is imputed, and no mismanagement of the assets is shown, I do not think, under the circumstances of this case, courts have any right to interfere or attempt to control the action of the assignees, and the decree of the circuit judge should be affirmed.

DELOS A. BLODGETT V. THE CITY OF MUSKEGON.

Partnership property-May be assessed in firm name after death of one
copartner, if the business is continued in the firm name by
the executor and surviving partner.

Plaintiff and one Thomas Byrne were copartners, carrying on a lumber-
ing business under the firm name of Blodgett & Byrne, their mill and
office being located in the city of Muskegon. On January 26, 1882,
Byrne died, leaving a will, in which he directed" that the partnership
business be carried on by his executor and plaintiff for so long a
time as was necessary to convert the assets into money, by the

methods and processes usual in the business thereof, and without loss or sacrifice to his estate or copartner," limiting the time to twelve years. He authorized his executor "to represent the interest of the estate in the firm, and do every act and thing pertaining to the carrying on and settling up of the business thereof that he could have done if living; and in case of plaintiff's death within the twelve years, to continue the business with plaintiff's legal representative for the unexpired term, or so much thereof as might be necessary." The will was duly admitted to probate, and George Hume appointed executor, who entered upon the discharge of his trust; and thereafter the firm business was carried on the same as before Byrne's death. A logging railroad was built, a store run, and the books and bankaccount kept in the old firm name, in which checks were drawn on such account for the payment of expenses. The old signs were retained, and the profits of the business treated as partnership profits.

In 1882 the firm property was assessed in the name of "Blodgett & Byrne," and the tax paid without objection. In 1884 an assessment was made in the firm name of personal property valued at $105,000 (which was raised by the board of review to $150,000), plaintiff objecting to such assessment on the ground that the title to the logs, which formed the major part of the assessment and which were not within the city limits, should have been assessed to him in the city of Grand Rapids as surviving partner, that being his place of residence, and the legal title to said property being in him as such surviving partner. He paid the tax under protest, and brought suit against the defendant to recover the money paid.

Held, that while it is true that the legal title to copartnership property is said to vest in the surviving partner, it does not become his absolutely, but he holds such title only for the purpose of closing out the partnership business.

Held, further, that under the facts in this case, the property was legally assessed in the firm name, it being really partnership property.

Error to Muskegon. (Russell, J.) Argued February 11, 1886. Decided April 15, 1886.

Assumpsit. Plaintiff brings error. are stated in the opinion and head note.

Norris & Uhl, for appellant:

Affirmed. The facts

The manner in which the business was carried on showed unequivocally that Hume was not a partner but an employe of plaintiff at a salary; and the name under which the business was conducted-" Blodgett & Byrne"-would indicate to the world, knowing of the latter's death, that the business