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must prosecute or defend in the name of the partners, a mercantile company carrying on trade under a proper firm, by which it draws bills, &c., as John Hare and Company," may be called in an action and cited by the firm, without the name of any individual partner.1 A partnership under a firm of this description may hold a lease by its social name.2 Pupils, idiots, and others incapable of consent, cannot enter on this contract to the extent of being liable, even with consent of their tutors. Such a person may, however, acquire, by descent or otherwise, a beneficiary interest in any concern, the partners of which may be liable to communicate to him a share of the profits while he is relieved from loss.3 The delectus persona, or preference for the individual, is strongly implied in a contract where those concerned must repose so much confidence in each other. It will consequently require a very explicit agreement to admit parties to a company from incidental title, as descent, assignation, &c. In public and joint stock companies, where the responsibility is limited to the money paid, shares descend to heirs, may be sold, and are attachable by creditors.5

SECT. 2.-How one may become a Partner.

The members of a company come under two different kinds of obligation, the one a general obligation to the public having transactions with the company, the other specific between the members. The former is incurred to its full extent by the mere circumstance of becoming or appearing to become a partner in a company,- —as by receiving a share of the profits, though it should be in the name of rent or wages; and in Scotland it has been so held even where the sum is not subject to fluctuation in the same ratio with the profits. It has been laid down in England, that if one stipulate for a regulated sum, even though its extent should depend on the amount of profits, he is not a partner, "but if he agree for a part of the profits as such, giving him a right to an account, though having no property in the capital, he is, as to third parties, a partner, and no stipulation can protect him from

Culcreuch Cotton Company v. Mathie, 27th November, 1822. Kerr v. Clyde Shipping Company, 8th June 1839. Robertson v. Anderson, 4th June 1841. London, Leith, &c. Shipping Company v. M'Corkle, 19th June 1841. Forsyth v. Hare and Company, 18th November 1834. Thomson Bonar and Company, Advocators, 30th November 1836.-2 Denniston and Company v. Macfarlane, 16th February 1808.-3 B. C. ii. 624.- Ibid. 620.5 ĺbid.-6 M'Kinley v. Gillon, 30th November 1830. App. 5 W. & S. 468.

loss." One will be bound by advancing money, the interest or other consideration for which depends in amount on the extent of the profits.2 One coal-dealer having agreed with another to bring customers to the concern, receiving an annuity and 2s. for every chaldron so sold, was held to be a partner, he having suffered his name to be used.3 The line of distinction is one of extreme nicety. Mr Smith observes, in his earlier editions, that "to constitute such a community of profit as is here intended, a partner must not only share in the profits of his companions, but must share in them as a principal, i. e. he must not be a mere agent, factor, or servant, receiving in lieu of wages a sum proportioned to the profit gained by his employers. Thus, where a broker, employed to sell indigo, was to receive for his trouble, instead of commission, all he could get for it above 2s. 6d. a-pound, the Court of Common Pleas held that he was an agent, not a partner, and consequently that he was admissible as a witness for his principal, in an action brought by him for the price of the indigo. But where, in a subsequent case, a broker was not only to be paid in proportion to the profits, but also to bear one-eighth of the loss, the Court of King's Bench seemed to think it a partnership; and indeed this distinction between a partner, and an agent remunerated in proportion to the profits, and whose income will consequently fluctuate with their fluctuation, is not very easy to apply, and Lord Eldon has lamented its excessive nicety."

The partners cannot avert such responsibility by any contract between themselves. One who allows his name to be used on bills of parcels, or invoices, or on the sign over the door of the establishment, will be responsible as a partner, though notice of dissolution have been given in the Gazette;6 and it would appear that in such a case he may be bound to a creditor who was not aware of the circumstance of his so appearing as a partner, and therefore could not have contracted on his credit. A person may be partner with one of the partners of a company in regard to his share, without being responsible as a partner of the principal company.8

Between Partners.-Partnership, in as far as respects the obligations of the partners to each other, is an ordinary con

1 Lord Chancellor (Eldon) in ex parte Hamper, 17 Vesey, 412.- Ex parte Chuck. 1832, 8 Bing. 469.-3 Young v. Axtell, quoted Waugh v. Carver, 2 H. Blackst. 242.-- Smith's M. L. First Edition, 4, 5.Collyer, 53, et seq.-6 Collyer, 370. Williams v. Keats, 2 Starkie, 290. -7 Smith's M. L. 6.-8 Fairholm v. Marjoribanks, 23d January 1725, M.

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sensual contract, depending on evidence of the consent of the parties. It may thus either be constituted by a solemn probative writ (see p. 133), or by any of those less formal documents privileged from their use in commercial matters, as letters interchanged, entries in books, &c., or may be inferred from circumstances, or proved by witnesses. The circumstance of a person receiving a salary or other remuneration for exertion, commensurate with the profits, will not make him a partner in this sense of the term, although it may render him responsible to third parties.2

SECT. 3.-Mutual Rights and Liabilities of Partners.

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The extent of each partner's interest in the concern will of course be generally regulated by the terms of the contract. Where no provision is made for a distinction of interests, equality is presumed.3 In England, where a father and son were in partnership without express stipulations, the business having been created and the capital provided by the former, a jury, under direction that there was no claim for an equal division, found that the son's proper share of the profits was one-fourth. Although the Lord Chancellor (Eldon) questioned the propriety of this decision, and intimated an opinion that the son should have had the half or nothing, the principle has been confirmed in a case appealed from Scotland, where it was held that in absence of all evidence to the contrary, equality was to be presumed, but that a different division might be supported from circumstances, and that it was for a jury to decide what would be a fair division proportioned to the contributions of the parties.5 It is inconsistent with the principles of the contract that a partner should be exposed to loss without having a chance of reaping profits, but it may be stipulated that a partner who is to share in the profits shall be exposed to none of the loss, a provision which of course only affects the claims of the partners on each other, and cannot interfere with those of creditors." "In such a case he will be a partner, enjoying, in addition to the advantages of partnership, the indemnity afforded him by his companions." "97

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1 1 B. C. ii. 622. Orr and Company v. Pollock, 12th June 1840.- Geddes v. Wallace, App. 1820, 2 Bligh, 270.-3 E. iii. 3, 19.- Peacock v. Peacock, 4th March 1809, 2 Camp. 45.-5 Thomson v. Campbell's Trustees, 14th February 1831, 5 W. & S. 16.-* A similar rule of division seems to be followed in France. Code Civil Par. 1853.—6 E. iii. 3, 19. B. C. ii. 646. Smith's M. L. 3.-7 Collyer, 11.

Where given proportion of profit is specified, the partner will have to meet the same proportion of loss, unless it is otherwise stipulated.1

Each partner is bound to the others to pay up his share of the common stock. Each is a creditor of the company to the amount of his paid up stock, of his share of profits not drawn, and of any sums advanced by him, or which may be due to him in the way of salary as manager, &c.2 The creditors or executors of a partner, bankrupt or deceased, are entitled to the balance in his favour, as at the moment of his bankruptcy or decease.3 A partner may be debtor to the company, and the company will have a claim like any other creditor, giving credit for the partner's share of stock and profit.4

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The company have a claim on each partner for such personal attendance on the affairs of the company as may be stipulated, or must be presumed from the nature of the concern; and "if a person enter into a partnership concern, which he contributes a certain portion of capital and labour, unless he stipulate that he shall receive a greater remuneration for his labours than the other partners, he cannot claim it." This will apply to any trouble undertaken by a partner, however far beyond what is undertaken by the others, or however inconvenient to the partner.6 Where a partner

claimed remuneration as a clerk of a committee of the company for taking evidence, transcribing, preparing cases for counsel, &c., he was held entitled to claim only for his advances, and for the cost of writings prepared in his office.7 Where a partner acting as manager had an allowance of a per centage on the transactions, he was entitled to a similar allowance for winding up the company affairs, without stipulation.8

Whatever property a partner obtains in the name of the company becomes immediately vested in it, and the company have even a claim on any beneficial acquisition made by a partner though in his own name, if it be in the company's line of trade.10 A partner will not be entitled to conduct a business which gives him an interest adverse to the partnership undertaking." Where one was engaged in a

1 Collyer, 10, et seq.-2 B. C. ii. 657.-3 Ibid. 658.4 Ibid.-5 Lord Gifford, in Campbell, &c. v. Beath, App. 2 W. & S. 25.-6 Hunter v. Cochrane's Trustees, 18th February 1831. Duncan v. Union Canal Company, 8th February 1831.- Berry v. Lamb, 7th July 1832.—9 E. iii. 3, 20.— 10 B. C. ii. 614.-"1 Collyer, 118.

company for which it was his duty to purchase the materials, and in doing so he paid the sellers by goods in his own particular line of trade, he was found liable to account for the profits made by the barter of the goods, as it was his duty to make the purchases at the lowest possible price.'

SECT. 4.-Authority and Liability of Partners as respects the Public.

Each partner has in the eye of the public an unlimited right of management, and is entitled to contract for the company, and pledge its credit in all matters within the scope of the business carried on.2 If a partner, therefore, raise money in the company's name, and apply it to his own purposes, the partnership will be liable, unless "under the circumstances the party [taking the obligation] can be considered as being advertised in the nature of the transaction, that it was not intended to be a partnership proceeding." In such a case it would be considered "against good faith" that he should pledge the partnership, and the claimants are bound to show previous authority or subsequent approbation before they can claim against the company. Thus, where

payment of a bill signed with the name of a firm by one of the partners was claimed from the other, it was held that, as it was not made in the business of the company, but formed part of a series of private transactions between the pursuer and [the partner who signed it] individually, which must have been known to the pursuer to be of that description," the copartner was not liable.5 The act of a single partner has only a presumption in its favour, and therefore in transactions beyond the proper objects of the company, a special authority or concurrence will be requisite, although the act should be one on which it was by no means improbable that such a company would enter,-as, in guaranteeing a debt, agreeing to an arbitration, &c.

Each partner is personally responsible for the engagements of the company. In this respect each acts as cautioner, but the partner has not like a cautioner the benefit of discussion (see p. 213), his personal responsibility arising im

Burton v. Wookey, Madd. & Geld. 367.-2 B. C. ii. 615.-3 Chancr. Eldon in ex parte Bonbonus, 8 Vesey, jun. 540.- Ibid. Hope v. Cust, quoted in Sheriff v. Wilks, 1 East, 53.5 Blair v. Bryson, 11th June 1835, and see Miller v. Douglas, 22d January 1811.- Duncan v. Loundes, 1813, 3 Camp. 478. E. iii. 3, 20.