Hinchman v. Barns

• Citation: 21 Mich. 556
• Court: Supreme Court of Michigan
• Decision Date: 18 October 1870
• Parties: Theodore H. Hinchman et al. v. John A. Barns and Henry A. Bury

21 Mich. 556

Theodore H. Hinchman et al. v. John A. Barns and Henry A. Bury

Supreme Court of Michigan

October 18, 1870

Heard October 12, 1870

Error to Wayne circuit.

This was an action of assumpsit, brought by Theodore H. Hinchman John M. Hinchman and Ford D. C. Hinchman against John A Barns and Henry A. Bury. The latter was not served with process. The plaintiffs declared against the two defendants as partners. Barns defended on the ground that he was a special, and not a general, partner of Bury. The plaintiffs on the contrary, affirming that by a neglect to publish notice of the limited partnership, as required by the statute, in the same senatorial district where the business was to be carried on, the partnership was in fact a general one. The business was to be carried on in the second senatorial district, and the notices were published in newspapers whose printing offices were located in the first senatorial district, all in the city of Detroit. The circuit judge charged the jury that the statute was complied with, in regard to the publication; their verdict was rendered for the defendant, and the judgment entered thereon, the plaintiff below brings the case into this court by writ of error.

Judgment affirmed, with costs.

S. Larned and F. A. Baker, for plaintiffs in error.

A. G. Boynton, E. E. Kane and Ashley Pond, for defendants in error.

Cooley, J. Campbell, Ch. J. and Graves, J. concurred. Christiancy, J. was not present on the argument of this case.

OPINION

Cooley J.:

The principal question in this case concerns the meaning of the statute which requires a notice of special partnership to be published in two newspapers in the senatorial district within which the business is to be carried on, and makes the special partner liable as a general partner, if there shall be any failure to make the requisite publication.

The business in this case was to be carried on in the first ward of the city of Detroit, and a notice thereof in due form was published in two daily newspapers of that city. The offices of those papers, however, were in the second ward of the city, which was in a different senatorial district from that which embraced the first ward. If this publication was not sufficient, it is conceded that Barns is liable as a general partner, while if sufficient, he is not responsible for the plaintiff's demand, unless made so on the ground of a change in the business of the concern, a point which will be referred to hereafter.

In endeavoring to ascertain what is meant in this statute by the publication of a newspaper, we have no difficulty in perceiving that it is not the mere printing thereof. Some other act is obviously essential to complete publication. The idea of publication includes the putting the paper in some form before the public. It has its inception with the printing, but it is only completed when the paper passes from the hands of the publishers into the hands of the public, or of such public agencies as are appointed for the distribution. When a paper is distributed exclusively through the mail, it could not be said to be published until delivery is made at the post-office; and if the edition should be accidentally destroyed while on its way from the printing-office to the post, it is quite evident that the printer could not truthfully make affidavit that a legal notice which it contained had been published, nor could one against whom it contained a libelous article maintain an action on the ground that the publication of the libel was complete, notwithstanding no one had yet seen it. So if the paper is distributed through the agents of the...