Partners and Partnership.

See tits. Bankrupt-Money had and received-Mortgage-Property Tax-Pawnbroker.

I. OF THE NUMBER OF INDIVIDUALS ALLOWED IN PARTNERSHIPS, p. 91.

II. OF THE CREATION OF PARTNERSHIPS, p. 91.

III. OF THE AUTHORITY OF ONE PARTNER TO BIND THE FIRM, AND OF THE RESPONSIBILITY

OF PARTNERS FOR EACH OTHER.

(a) IN GENERAL, p. 93.

(b) IN PARTICULAR.

1. Arbitration, Submission to, p. 95.

2. By Bills and Notes, p. 95.

3. Payments to, p. 97.

4. With respect to Frauds, p. 97.

5. With respect to Torts, p. 98.

IV. RELATIVE TO THE SALE OF A PARTNER'S SHARE, p. 98.

V. RELATIVE TO THE RIGHT OF ONE PARTNER TO TRANSFER A CONTRACT TO A CO-PARTNER, p. 98.

VI. RELATIVE TO BOTTOMRY AND RESPONDENTIA BONDS BY PARTNERS, p. 98.

VII. RELATIVE TO DORMANT AND ACTING PARTNERS, p. 99.

VIII. RELATIVE TO ACTIONS BETWEEN, AND BY AND AGAINST THIRD PERSONS.

(a) BETWEEN PARTNERS, p. 100.

(6) BY PARTNERS AGAINST THIRD persons, p. 102. (c) BY THIRD PERSONS AGAINST PARTNERS, p. 103. (d) WITNESSES CONNECTED WITH, p. 104.

IX. RELATIVE TO BANKRUPTCY CONNECTED WITH,

p. 106.

X. RELATIVE TO THE DISSOLUTION OF, p. 107.

I. OF THE NUMBER OF INDIVIDUALS ALLOWED IN PARTNERSHIPS. See 7 Geo. 4, c. 64; 1 & 2 Vict. c. 96; 2&3 Vict. c. 68; 3 & 4 Vict. c. 111; 5 & 6 Vict. c. 85.

II. OF THE CREATION OF PARTNERSHIPS*. GREEN v. BEESLEY, T. T. 1835. C. P. 2 Bing. N. S. 108; S. C. 2 Scott, 164.

Ir was agreed between the plaintiff and defendant that the plaintiff should horse the mail from N. to B. and back again, and be paid at the rate of 91. per mile per annum, to be paid quarterly, provided that the said agreement, on that and every subsequent article, should be properly fulfilled. It was further agreed that the plaintiff should pay for one cart then in use the sum of 187. to the defendant, and that he would pay for, in a fair proportion with the defendant, all repairs of carts, so long as the agreement should be in force. It was also agreed that the monies received for the conveyance of all parcels should be fairly and equally divided between the two parties, each bearing an equal portion of the loss, if any, occasioned by the loss or damage of any such parcels.

The Court held, that this agreement amounted to a contract of partnership, as profit and loss was to be divided; and therefore, that no action was maintainable at law upon it.

PERRING v. HONE, M. T. 1826. C. P. 4 Bing. 20. Ar the time of forming a joint-stock company, the plaintiffs' names were entered in a book as original subscribers, and scrip receipts were issued by the directors, which they afterwards sold before the company's deed was executed, and which was never signed by the plaintiffs.

The Court held, that they must still be deemed partners in the concern, and could not, therefore, recover on a note by the defendant payable to the plaintiffs on account of the company.

Fox v. CLINTON, T. T. 1830. C. P. 6 Bing. 776. In an action against several defendants for goods sold &c., upon a contract, not made with them, but with the chairman and directors

* Where parties enter into a contract of partnership in violation of the law, it is void, and will confer no right on either party as against the other. (Armstrong v. Lewis, in error, M. T. 1834, Ex., 2 C. & M. 274; S. C. 4 M. & Scott, 1).

+ Proof of there having been a person of the same name at S., in Spain, though now residing here, and that there was a firm at S. trading in such name, and no other person there of that name, without further shewing that he ever at all acted in the concerns of the firm :- Held not even to be primâ facie evidence of his being a partner. (Bargue v. De Toutet, 1820, N. P., 3 Stark. 53). Where two persons are in partnership, the presumption is that they are interested in the partnership stock in equal moieties. (Farrar v. Beswick, 1836, N. P., 1 M. & Rob. 527).

Any division of profit and loss

constitutes a partnershipt;

and entering names as such

in a book is sufficient ;

but mere application for

shares, and payment of

first deposit, or secretary enter

ing subscribers'

names in a

book, does not

constitute a partnership;

and a party, by
merely signing
a prospectus,
does not render
himself liable
for goods or-
dered by
others.

So, a conditional agree

profits in ma

of a joint-stock company, upon the question, 1st, whether the defendants were, at the time of the contract, partners in the concern; and 2ndly, whether they had held themselves out to the world as such. It appeared that, by the original prospectus for forming the company, it was stipulated that all persons who did not execute the deed of settlement within thirty days after it was ready were to forfeit all interest in the concern. Out of 2,300 persons who paid the first deposit, 1,106 only paid the second, and only 65 signed the deed; and after the time elapsed for paying the second instalment, the directors advertised that such persons as had omitted to pay had forfeited their interest in the concern.

The Court held, 1st, that the mere application for shares and payment of the first deposit did not constitute the parties partners, nor had the directors authority to bind the defendants; and, 2ndly, that the insertion of the names by the secretary in a book containing the list of subscribers could not be deemed an authorized communication to the world, with the assent of the defendants, of their being ostensible persons in an established concern.

BOURNE v. FREETH, T. T. 1829. K. B. 9 B. & C. 632. IN consequence of a prospectus that a company was to be formed, the defendant having subscribed his name thereto, attended a meeting for the purpose of taking premises, which were afterwards taken, and solicited others to take shares, but he never paid his own subscription.

The Court held, that by signing such prospectus he did not, either by his having actually become a partner, or by holding himself out to the world as a partner, give an implied authority to the person ordering goods of the plaintiff to bind him, and was consequently not liable, as a partner, to pay for them.

ELIGEE v. WEBSTER, T. T. 1838. Ex. 5 M. & W. 518.

By an agreement in writing, W. agreed with E. to advance him a sum of money for the purpose of manufacturing certain inventions; ment to divide and it was agreed that if the inventions should become of public or private use W. should be entitled to one-third of the profits of the inventions. The agreement contained an express promise on the part of E. to repay the sums of money advanced by W. In an action brought by W. to recover the money thus advanced

nufacturing a certain invention, does not create a partnership.

The Court held, that this agreement did not constitute a partnership between the parties with respect to that sum.

RIDGWAY . PHILIP, M. T. 1834. Ex. 1 C., M. & R. 415; S. C. 5 Tyrw. 131.

IN an action against several, upon a breach of contract for building an engine made by one in the name of B. & Co., and he, upon being asked what other persons constituted the firm, indorsed the names of the other defendants, and one of the defendants upon

*Plaintiffs, carrying on business as stationers, supplied paper to defendants by order of A., a printer, to whom credit was given. A. afterwards became bankrupt, when it appeared that defendants and A. were jointly interested in the pub

being applied to if the indorsement by B. was correct, replied that it was; and it appeared that he was present occasionally at the manufactory, inquiring how the engine was going on, but it was proved in fact that he had only a limited interest in the concern:

Held, that it was a question for the jury, whether his admission and acts were referable to such limited interest or not; and having found that he was not a partner, the Court refused a new trial.

WILLIAMS v. JONES, H. T. 1826. K. B. 5 B. & C. 108. AN agreement for taking defendant's son into partnership for ten Where no term years as an attorney; the consideration to be paid within two years from the date thereof, but no date was mentioned for the commencement of the partnership.

The Court held, that it must be construed to commence in præsenti; and that parol evidence could not be received to shew that it was intended to be otherwise; and not to take effect until the party had been admitted, in order to render it legal within 22 Geo. 2, c. 46, s. 11.

BATLEY v. LEWIS, H. T. 1840. C. P. 1 Scott, N. S. 143; S. C. 1 M. & G. 155.

Two parties agreed to enter into partnership by deed, to be executed on a day stated, but it was in fact executed on a later day. The Court held, that the one was bound by a contract entered into by the other in the interval between the day fixed and that when actually executed.

HOWELL V. BRODIE, T. T. 1839. C. P. 4 Bing. N. S. 44; S. C.

8 Scott, 372.

is named
it will be in-
tended to be-
gin in præsenti.

And a partnership commences from the day agreed on, though the

deed be executed at a

later day.

VARIOUS negotiations took place with the view of the defend- An agreement ant taking an interest in a building speculation; and he advanced to form a partnership after money, and buildings were erected, which a surveyor was to value; valuation is and afterwards an agreement was entered into, by which the de- prospective. fendant was to be entitled to one seventh share, expressly to commence from the day of the date thereof.

The Court held, that, in the absence of any distinct proposal, the agreement constituted the partnership prospective only, and not retrospective, so as to render the defendant liable for the buildings erected previously thereto.

III. OF THE AUTHORITY OF ONE PARTNER TO BIND
THE FIRM, AND OF THE RESPONSIBILITY OF
PARTNERS FOR EACH OTHER.

(a) IN GENERAL.

DONALDSON v. WILLIAMS, H. T. 1833. Ex. 1 C. & M. 345. ONE of two partners, joint-tenants of the house in which the business was carried on, directed a weekly servant to remain there after notice to quit given by the other.

lication of a work for which the paper was sold. The jury found that a partnership existed at the time the paper was ordered :-Held, that the defendants were liable. (Gardiner v. Childs, 1837, N. P., 8 C. & P. 345).

If one partner directs a ser

vant to remain,

another has

no right to expel him*.

But a covenant by one partner not

to sue does not bind the firm.

So, upon joint speculation, not a ge

neral partnership, advances to one member do not bind another.

And one partner agreeing to pay does not

exonerate another without notice assented to.

The Court held, that he had authority so to do, and that a copartner could not justify turning the servant out by force.

WALMSLEY v. Cooper, M. T. 1839. Q. B. 3 P. & D. 149. In an action of covenant by two partners for a joint debt, plea, that Walmsley, one of the plaintiffs, by deed of composition, released defendant from the debt. The replication set out the deed or oyer, which contained no release in terms, but a covenant by the said plaintiff not to sue for any debt due from defendant to him.

Per Cur.-There is no answer to this action. If one of two plaintiffs covenant not to sue for a joint debt, he may be liable for a breach of that covenant, if both afterwards sue; but if he is then sued by the debtor for breach of covenant, he alone must answer for it; the two will have recovered according to defendant's obligation to them, but that one only will be compellable to refund who has entered into a counter obligation with their debtor not to sue him.

v.

SMITH V. CRAVEN, T. T. 1831. Ex. 1 C. & J. 500; S. C. 1 Tyru. 389.

A., B., and C., not general partners, entered into a joint speculation, it being agreed that each should contribute one-third; and they employed an agent to purchase, who consigned the goods to A, on whom he drew bills, which were accepted, payable at the plaintiffs', his bankers, and were all duly honoured on the credit of A. C. regularly paid his proportion to A. and B., who managed the speculation, being ignorant whence they obtained funds to meet their share, nor did the bankers know any thing of the joint speculation.

The Court held, that upon the bankruptcy of A. and B. they could not sue C., in respect of the advances so made on the credit of A., although applied in payment of the bills drawn on account of the joint concern.

KIRWAN V. KIRWAN, E. T. 1834. Ex. 4 Tyrw. 491.

C., M., and N., who carried on business under the name of J. K. & Sons, being indebted to A., C. retired from the partnership, and M. and N. agreed to liquidate the claims. Afterwards M. also retired, and advertisements of the dissolutions of both partnerships were at the same time inserted in the Gazette. N. then took in a new partner, and the business was carried on in the original name of J. K. & Sons. A.'s account was transferred to the new firm, and he received accounts and payments from them; but it did not appear that he ever saw the Gazette, or that either he or the new partner consented to the substitution of the responsibility of the new firm.

* Where it was clearly established that there was a joint interest between the printer and publisher in particular works, for which paper was furnished by the plaintiffs, and delivered to the printer by orders from the publisher, who afterwards became bankrupt :-Held, that if the jury were satisfied, when the goods were furnished, the defendants were partners in the concern for whose benefit they were furnished, the plaintiffs were entitled to recover, otherwise not. (Gardiner v. Childs, M. T. 1837, N. P., 8 C. & P. 345).