ment among the parties to be partners, but where they do in fact contract to share a joint or common benefit, and there is a question whether the agreement, such as it is, actually constitutes them partners inter se.

In cases of secret, silent, dormant or unknown partners, who agree in the common characteristic of secrecy or concealment in respect to creditors of the firm, the only inquiry is as to the person, and not whether he is a partner or not, for this he is already, ex hypothesi.

On the other hand, where a person so acts as to induce the belief that he is already jointly bound with those who seek and obtain the credit, as in the case of nominal, public or ostensible partners, it seems hardly necessary to call in aid the principle of agency in order to determine their liability. For example, if in the firm A., B. and C., A. and B. are acting partners, and C. a mere nominal partner, it would appear that C. is responsible to the partnership creditor, not because A. or B. may have contracted a debt as his agent, but because C., by appearing in the firm, addresses himself directly to the creditor who is thereupon. authorized to clothe him with the full character of an original and immediate contractor. He is not a partner merely because A. or B. may subject him to a joint obligation with themselves, but because by knowingly permitting his name to appear in the firm, he thereby expressly constitutes himself a partner, or rather is estopped from denying that he is a partner, and thus being a partner any member of the firm may bind him as an agent. Here it is only necessary to prove that he was knowingly represented as a member of the firm, without reference to any agreement made with his copartners. But in the case of one suspected of being a partner, the proof is entirely different, and it is not only admissible but necessary to resort to the common law for the means of establishing the fact of partnership, which being done, the law-merchant comes in to supply the consequences of that relation.

Let us endeavor then to ascertain among the doctrines of the common law, the ultimate principle on which the joint liability of joint contractors is founded, and see if it may not be made serviceable in determining the partnership relation in respect to the creditor. For it must be remembered that we are now called upon to prove the fact of partnership, in the

absence of any express agreement to that effect, and perhaps in the face of a denial made under the solemn sanction of an oath. It is therefore requisite to prove a joint liability between the party sought to be charged and the party or parties already known to be liable for the debt. And this can be done only by showing that the relations of all the parties to the creditor are identical.

The common law enables us to ascertain this identity of relation by the application of its most familiar elementary principles. And first there must be a contract.

It may be said generally that wherever the common law gives a remedy for enforcing the payment of money-except in actions ex delicto-the right to recover is predicated on the existence of a contract either express or implied. In actions of debt, covenant and assumpsit, it is absolutely indispensable to prove that the parties agreed together either in formal terms or by intendment of law, before the defendant shall be required to disprove the allegations of the plaintiff. And certainly because a man is supposed or charged to be a partner, there is no reason either in law or in justice to subject him to harder conditions than those which obtain in ordinary cases, so as to render him liable on a contract which as to him has no existence either actual or presumptive.

Having established the contract (supposing a consideration. proven) the question next in importance is who are answerable for its fulfilment, or rather for damages, in default of its fulfilment, in other words, who are properly defendants to the action? And here it is manifest that no one ought to be made a defendant who was not a party to the contract either in person or by representation lawfully authorized. Where the contract is express, there is no difficulty in determining the question; but where it is implied, it is necessary to ascertain where the legal liability rests, for where this is found, then the presence of a contract is presumed. But no one can enforce this liability to whom it is not directly given, for "it is a general rule that no person can maintain this action (assumpsit) on an agreement to which he is not a party, for in such case there can be no contract express or implied," 1 Str. 592. Nor is there any magic virtue in the lex mercatoria, which can convert a stranger into a party simply because he happens to be called a partner by those whose interest it is to prove that he is such.

The real question then is, did the supposed partner contract

with the partnership creditor? and in the absence of any express agreement, the law will infer a contract from certain facts and circumstances.

When A. at his request, either express or implied, obtains the goods of C. without agreeing as to the price or actually promising to pay it, the law imposes on him the obligation of a contract to pay so much as they are worth, and the ground of his liability is` the benefit to himself and the corresponding detriment to C. The same is true if A. and B. obtain goods in a similar manner, each one at common law being liable for the whole debt, with the right of demanding contribution.

But the benefit must move immediately from C. to A. or to A. and B., and not through an intermediate interest or title, for otherwise the assumpsit cannot be implied, but must be expressly given. For instance, if A. assumes the responsibility of a debt contracted by B., for B.'s benefit, the law can raise no implied undertaking from A. to the creditor, whatever may be the consideration as between A. and B., but goes so far as to require that the promise shall be in writing. The liability of the guarantor is essentially different from that of the principal debtor, and depends upon a totally different principle. For here in fact are two contracts; the debtor's contract to pay for the goods, and the guarantor's undertaking to pay the debt in default of payment by the principal debtor. As to the contract to pay for the goods, there is no privity between the guarantor and the creditor, and the only effect of the statute 29 Car. II. c. 3 is that such collateral agreements are now required to be in writing, in order that the guarantee may be more readily proven, but it does not merge the two contracts into one.

So if A. purchases goods on credit and then gives or sells them to B., although the latter has the use and benefit of the property so obtained, yet the creditor cannot go around his immediate debtor and charge the debt upon a stranger, because here is an intermediate title or ownership, and there is ex vi terminorum, no privity and consequently no contract between the stranger and the creditor.

The ground of the implied contract is therefore the benefit drawn directly from the use of the goods or property purchased, which property has been received immediately from the creditor in such a manner as to create a privity of relationship between

the debtor and himself; and what is true of one, holds equally good of any number of debtors.

This general reasoning is applicable to all cases of supposed partnership, where an attempt is made to extend the liability beyond its ostensible limits. The problem with the defence is to fix the point at which the liability ceases, for it must cease when no contract can be legally presumed or proven to exist, and if it can be shown to fall short of the person sought to be charged by being intercepted in some intermediate party, it follows necessarily that the former cannot be affected by it.

A community of interest in the profits of a joint undertaking or business is said to be essential to the existence of a partnership; but this is true only so far as the manner in which the profits are taken serves to evidence and explain the contract between the parties. Profits being therefore the proper subject of partnership property, it is only requisite to inquire into the mode of participation, in order to determine whether the party interested is a partner or not. Suppose C. is suspected of being a partner with A. and B., by what proof is the fact established? A mere participation in the profits is not alone sufficient to charge him, for the mode of participation may be such as to prove directly the contrary. It must be shown that the supposed partner is in the same relation to the creditor that the known partners are; that is, they must all be immediate debtors to the partnershipcreditor for a joint benefit conferred simultaneously and directly upon them by the creditor. A. and B. are liable because they have received a benefit directly from the use of the creditor's property; and inasmuch as it is a joint benefit derived from a joint use and disposition of that property, the law attaches to them the joint liability of partners which, ex hypothesi, they have expressly assumed. Hence if C. can be shown to have a similar interest in the profits and thereby to sustain a similar relation to the creditor, it follows, as a matter of course, that he is liable in the same manner and to the same extent as the other partners are, and is himself a partner. In other words, the supposed partner must have the same privity of relation to the creditor that all the other partners have. And hence instead of saying "that he who shares in profits indefinitely, is liable as a partner to creditors, because he takes from that fund which is the proper security to them for the payment of their debts;" it seems more accurate to say-be

cause by having in the profits an interest similar in character to that of the other partner or partners, he has enjoyed a benefit conferred directly upon him by the creditor, and thereby through an implied contract, becomes as much his debtor, as the party or parties already known to be so indebted.

How, then, is this privity to be ascertained? We answer-by showing that the profits are derived from a joint benefit moving. immediately from the creditor to all the parties to be charged; or what is the same thing, by proving that the interest of the party who ostensibly receives and the interest of the party who actually shares the benefit or profits, are homogeneous;* that is, subsisting in the same right and in the same subject-matter. Otherwise the contract cannot be presumed as between the supposed partner and the partnership-creditor.

The view here taken justifies the reasoning of Lord ELDON in Ex parte Hamper, 17 Ves. 404, where he makes a distinction between a stipulation for a proportion of the profits as a compensation for labor, skill or services, and an agreement to receive a sum of money equal to such a proportion of the profits and actually paid out of them; holding that the former constituted a partnership and the latter did not. And the distinction is obvious notwithstanding Mr. Justice BRAMWELL thought there was no "difference except in words, at least so far as creditors are con cerned:" Bullen v. Sharp, ubi sup. 126. The real difference consists in the different legal consequences of the two contracts. Where the agreement is to receive a proportion of the profits in consideration of services, these latter are to be regarded as component parts of the partnership stock belonging to, and being under the control of the firm, and the party who contributes them is thereby made a partner, in the absence of any special restriction to the contrary. While he labors to produce profits for others, he is at the same time producing them for himself and thus he has the same interest in his own services, as if he contributed only money to the partnership stock and bore his share of the expense which the firm would have to incur if it employed

The words homogeneous and homogeneity strike us as far more accurate and convenient expressions for indicating the interest of partners than the words common and community, which are usually employed for that purpose. This may have been the idea of Mr. Parsons when he said "the distinction taken is between different kinds of interests in or claims upon profits:" Pars. Part. 75, in note.