6. If a creditor of one tenant in common attach his interest, and partition be afterwards made without notice to such creditor, as to him it is void, and he may levy his execution as upon an estate in common. · Munroe v. Luke, xix. 39.

7. Petition for partition of three parcels of land. The petitioner was proved to be seised in common of only two of them, and the respondent to be sole seised of the third. Held, the petitioner could not amend by striking out the third parcel, but the respondent should have his costs, and partition was ordered of the other two parcels. -Loud v. Penniman, xix. 539.

8. A covenant by tenants in common, that a certain parcel of their land shall be occupied in common, as a yard, by them, their heirs and assigns, forever, is no bar to a petition for partition of such parcel. Neither party can, on this ground, maintain the plea of sole seisin; and a partition will not vary the previous right of occupancy. Fisher v. Dewerson, 3 Met. 544.

9. A tenant in common, not actually ousted, may maintain a petition for partition, though for the sake of a remedy, he has elected to consider himself disseised, and brought a writ of entry against his co-tenant, counting on a disseisin by him. Ibid.

Partnership.

A. What constitutes or proves a partnership; partnership agreements, construction and effect thereof.

B. Authority of one partner to bind and act for another. C. Claims between partners; suits thereupon, and evidence therein.

D. Claims by and against partners in relation to third persons; actions thereupon, and evidence therein. E. Respective rights of creditors of a partnership, and creditors of the individual partners.

F. Dissolution of a partnership; how effected and proved, and consequences thereof.

A. What constitutes or proves a partnership; partnership agreements, and construction thereof.

1. Where one of three partners retires from a firm, or a new partner comes into it, or both, of which notice is given, but the business continues to be conducted in other respects as before; those partners, as to whom no notice is given, will be presumed to hold the same relation to the concern afterwards, which they did before. Howe v. Thayer, xvii. 91.

2. By a writing dated October 10, 1827, signed by T. and others, and by P. & Co., a firm of iron manufacturers, T. and others agreed to take and pay for one fourth of the real estate, formerly bought by P. & Co. of their deceased partner, at $ 15,000, and to buy the one fourth of the stock of the factory bought by P. & Co., belonging to the estate of their deceased partner, at the appraisal. Also, to be interested or allowed one fourth of all the profits of manufacturing iron, and in all profits or loss in the same since the appraisal of said estate the 20th of April, 1827, and to pay P. & Co. $2000 profits on the same in six months from this date; and P. & Co. agree to get the said manufactory incorporated in January next; at which time, all the property now belonging or that may belong to said concern shall be put into shares, three fourths of which shall belong to P. & Co. and the other fourth to T. and others, when an exhibition is to be made to the satisfaction of all, and a copartnership formed. P. & Co. are at liberty to sell one third of their three fourths of the whole concern of real estate and stock to R. The services of P. & Co. shall commence from April 20, 1827. Held, this agreement, coupled with evidence of the payment stipulated to be made by T. and others, (and, it seems, without such evidence), constituted a partnership between the several parties to it from the time of its execution. Goddard v. Pratt, xvi. 412.

B. Authority of one partner to bind and act for another. a. Before dissolution.

1. The giving of a note by one partner, for a purpose not connected with the partnership business, is primâ facie a fraud upon the firm; and the law will not presume that it was done with their Eastman v. Cooper, xv. 276.

consent.

2. One partner having, without the knowledge of the other, assigned partnership property to pay the debts of the firm; held,

the latter could not, in an action for money had and received, recover from the assignee his share of the proceeds of such property. Hewes v. Bayley, xx. 96.

3. Where one partner, or an agent of a firm, acting within the scope of his authority, commits a fraud in the sale of partnership property; the firm are responsible. Locke v. Stearns, 1 Met. 560.

4. One partner, without the knowledge or consent of the firm, may mortgage the whole stock in trade, to secure a partnership debt. Tapley v. Butterfield, 1 Met. 515.

5. Such mortgage binds the firm, though under seal; the rule, that one partner cannot bind another by sealed instruments, not being applicable, where the transfer is such as might have been made without a sealed writing. — Ibid.

6. In case of a general partnership, for buying by wholesale, to sell by retail, one partner may sell the whole stock by a single Arnold v. Brown, xxiv. 89.

contract.

7. Such sale is good, as against a creditor of the firm, though the individual member apply the price to pay a private debt. Ibid.

8. The stock and tools of trade of a firm being attached, the officer delivered them to the creditor, taking his accountable receipt. It was afterwards agreed between the creditor and one of the partners, that the former should take the property at an appraisement, and apply it to the firm debts; of which agreement the officer was notified, and discharged from his liability for the property. The other partner afterwards brought trover against the officer for the property attached. Being informed of the above proceedings, he said he was satisfied of the insolvency of the firm, that the property had been applied to its debts, and that the creditor had advantageously disposed of it, but still proceeded with his suit, saying that, as the affair had begun in the law, it might end in the law. In this action the question was left to the jury, whether the plaintiff had ratified the doings of his partner, the attaching creditor and the officer, with instructions to find for the defendant, if satisfied that he had confirmed and approved of those doings, with full notice of all the facts. Held, the question was a proper one for the jury, and the instruction correct. Hewes v. Parkman, xx. 90.

9. Held, the plaintiff's ratification of the agreement to sell upon appraisement gave validity to the sale, and his subsequent assent to the attachment of the tools rendered such attachment legal ; that the defendant, being notified of the sale, ceased to be liable

for the property, and that this action could not be sustained. — Ibid.

b. After dissolution.

10. A firm, after dissolution, verbally authorized one of their number to sell a negotiable note belonging to them; and he indorsed it "without recourse,' " in their name. Held, he had a right so to do. Yale v. Eames, 1 Met. 486.

11. Where partners obtained an act of incorporation as a manufacturing company, and transferred all their partnership property to the corporation, which, by a by-law, provided that the business should be carried on in the name of the partnership; held, if the partnership was hereby dissolved, still the members were liable as partners, upon contracts subsequently made in the firm name, or with third persons not notified of the dissolution. Goddard v. Pratt,

xvi. 412.

12. In an action against such partnership, held, evidence was inadmissible of a general reputation or report, that the signature in the name of the firm was meant as that of the corporation. Ibid.

13. In an action against a supposed firm, a witness cannot be allowed to testify that he had heard, or that it was the common reputation, that one of the defendants had ceased to be a partner. Ibid.

14. Where one partner gives his note to the firm, who retain it till after its maturity, and the partnership is dissolved; another partner, who has assumed the settlement of the partnership affairs, cannot validly transfer such note. Parker v. Macomber, xviii.

505.

15. But where one partner, after dissolution of the partnership, gives his note, payable to bearer, to A., who passes it to the firm in payment of a debt; such note may legally be transferred by another partner, intrusted with a settlement of the joint concerns, to B. Ibid.

16. Action against partners upon an account. Held, the plaintiff might prove, that one of the partners, after dissolution of the partnership, acknowledged the account to be correct, and directed that a balance against a co-partner, on a separate account with the plaintiff, should be transferred to the debit of the partnership, stating that it was all one concern. Vinal v. Burrill, xvi. 401.

17. A sealed contract was executed by the plaintiffs of the one part, and by A., for himself and B. his partner, in the partnership name, but without authority from B., of the other part, for a purpose within the scope of the partnership, to wit, the erection of a

dam for the company. The plaintiffs thereupon furnished the materials and built the dam, but did not finish it till after dissolution of the partnership. Held, B. was not liable upon the above contract, but, as such contract had no legal existence between the plaintiffs and the company, that he was liable upon an implied promise for the work done and materials found before dissolution. Van Deusen v. Blum, xviii. 229.

18. A dormant partner is not liable for debts of the firm, contracted after dissolution, though he does not give notice of such dissolution. Grosvenor v. Lloyd, 1 Met. 19.

C. Claims between partners; suits thereupon; and evidence therein.

1. A partnership, consisting of four members, was dissolved by the death of one of them. One of the survivors administered upon his estate, and the three formed a new firm, and took the stock, each giving his own note for one third of the appraised value, payable to the whole. Held, such intended sale was invalid, and the three partners were jointly liable to the funds of the old firm for the value of the stock. Washburn v. Goodman, xvii. 519.

2. An agreement between A. as silent partner, and B., C. and D. as active partners, provided, that they should share equally the profits and losses, and that B., C. and D. should constantly endeavor to promote the joint interest by their attention and industry, and, upon the termination of the partnership, make a true, just, and final account of all things relating to the firm, and well and truly adjust the same. Held, B., C. and D. could not claim compensation for their services, after a dissolution, in settling the business of the firm. — Ibid.

3. The partnership being dissolved by the death of A., held, B., C. and D. were liable for interest upon his share of the stock, after the lapse of a reasonable time for settling the partnership concerns. Ibid.

4. By the agreement, the partnership was to continue three years. B., C. and D. took, in their individual names, but for the use of the firm, a lease of a store for five years, which was occupied by them till A.'s death. The remainder of the term was afwards disposed of by the survivors at an increased rent. Held, the estate of A. was entitled to a share of the profit made by this transfer. Ibid.

5. After A.'s death, the rest continued the business of the firm