The payment of money for certain shares in a mining company, and the receipt by the party paying such money, of a mere certificate that he was a proprietor of those shares, and his mistaken acknowledgment that he was a shareholder, are not sufficient to constitute him an actual partner in the company: there being no valid assignment to him of any interest in the mine (h).

It is a clear general rule, that one partner cannot sue his copartner at law in respect of the partnership accounts, or in any other matter connected with the partnership transactions; whether the firm exist for general purposes, or have reference only to a particular trade or branch thereof (i). Nor can such a partnership claim, become the subject even of a set-off (k). The reason is, that a court of law cannot do effectual justice between the parties: the investigation and settlement of their accounts and affairs being peculiarly the province of a court of equity.

Therefore, one partner cannot sue his co-partners for money received by the latter, for the use of the firm (1); or for goods sold (m); or money lent to (n); or work done (o); or money paid (p); for the firm. Nor can the drawer of a bill, who is a partner in a firm, recover upon a bill of exchange drawn by him, (not on his other partners separately by name,) but upon the firm generally, by the style in which it is conducted (q). In Teague v. Hammond (r) it appeared, that a member of a joint stock company, was employed by the company as their agent, to sell goods for them, and received a commission of two per cent. for his

(h) Vice v. Anson, 7 B. & C. 409. See Lawler v. Kershaw, M. & M. 93, post.

(i) Smith v. Barrow, 2 T. R. 478; Mainwaring v. Newman, 2 B. & P. 124; Hesketh v. Blanchard, 4 East, 144; Holmes v. Higgins, 1 B. & C. 74, 2 D. & R. 196, S. C.; Teague v. Hubbard, 8 id., 345. But the objection does not hold, unless a partnership has been actually formed. Nickells v. Crosby, 3 B. & C. 814, 5 D. & R. 751, S. C.; Wilkinson v. Frasier, 4 Esp. R. 182; Hesketh v. Blanchard, 4 East, 144. An action lies for not supplying MS. for a work, though the parties were to share profits, Gale v. Leckie, 2 Stark. R. 107.

(k) Fromont v. Coupland, 9 Moore, 319,2 Bing. 170, S. C.

(1) See suprà, note (i). See a strong case, Bovill v. Hammond, 6 B. & C. 149. It makes no difference that all the monies have been received and paid by one partner. Id.

(m) Harvey v. Kay, 9 B. & C. 356. (n) Id. Perring Bart. v. Hone, 12 Moore, 135.

(0) Holmes v. Higgins, 2 D. & R. 169; 1 B. & C. 74, S. C. This was an action by a surveyor, who was a member or shareholder in an undertaking, to recover his bill for making estimates for the concern. And see Parkin v. Fry, 2 C. & P. 311.

(p) Suprà, note (i). (q) Neale v. Turton, 4 Bing. 148; 12 Moore, 365.

(r) 8 B. & C. 345.

trouble, and one per cent. del credere for guaranteeing the purchaser. Having sold goods on account of the company, he drew on the purchaser a bill of exchange, payable to his, the drawer's, own order; and after it had been accepted, he indorsed it to the actuary of the company, and the latter indorsed it to another member, who was the managing director, and who purchased goods for the company; the company were then indebted to him in a larger amount than the sum mentioned in the bill. The acceptor having become insolvent before the bill became due, the drawer received from him 10s. in the pound, upon the amount of the bill, by way of composition. It was held, first, that the indorsee being a member of the company, could not sue the drawer on the bill, inasmuch as it was drawn by the latter on account of the company; and that he could not recover the sum received by the drawer on the bill, because that money must be taken to have been received by him in his character of a member of the company, and not on his own account.

But an action lies on an express covenant to account (s): and one partner may maintain an action for money had and received, against the other partner, for money received to the separate use of the former, and wrongfully carried to the partnership account (t). And a partner may recover money paid to his copartner, for the purpose of being paid over, as the plaintiff's liquidated share of a debt, to their joint creditor; if it be not so applied, and the plaintiff be obliged to pay such joint creditor (u).

J., T., and B., were jointly concerned in the sale of goods. J. consigned them to B., who sold them on the joint account. T. being requested to accept bills for the firm, refused so to do, without some security; when B. engaged, if T. paid the bills, to repay him out of the proceeds received for goods already sold. T. having accepted and paid the bills, it was held that he might sue B. for money had and received to his use (v). And if one of two joint contractors, upon a breach by them of their engagement with a third person, agree with the creditor to refer the amount

(s) Foster v. Allanson, 2 T. R. 482; Thimblethorpv. Hardesty, 7 Mod. 116; Venning v. Leckie, 13 East, 8 per Lord Ellenborough; Ouston v. Öyle, id.,

538.

(1) Smith v. Barrow, 2 T. R. 476.

(u) Wright v. Hunter, 1 East, 2); Venning v. Leckie, 13 East, 7; Hutton v. Eyre, 6 Taunt. 289. See Robson v. Curtis, 1 Stark. R. 78, 79.

(v) Coffee v. Brian, 3 Bing. 54; 10 Moore, 341, S. C.

of damages to arbitration, which is done without the consent of the other contractor, the former, on paying the sum awarded, may recover a moiety thereof from the latter, in an action for money paid (x).

It is also a clear rule, that if partners finally balance all their accounts, and a certain sum be found by them to be due, and the partner against whom the balance is struck expressly promise to pay it, he may be sued at law to recover the amount (y). But it seems, that the partial settlement of accounts, as the adjustment of a weekly account only, is not sufficient to enable a Court of common law to entertain a suit to recover the money, although there be a promise to pay it (z).

We may here notice the rule, that if one of several plaintiffs constituting a firm, be also a partner in another firm, against which the action is brought, such action cannot be maintained. A person cannot be one of the plaintiffs, and also one of the defendants in the suit, although he be not named as a defendant on the record. The objection consists in his being interested on both sides (a).

And if A. (an attorney), and B. and C. be members of a trading company, and, after the dissolution of the company, B. and C. be sued by creditors of the company, and retain A. to defend the action, the latter being, as a member of the company, liable to contribute to the expenses of defending these actions, cannot sue B. and C. for his bill of costs (b).

2. What will constitute a partnership with regard to third Persons. An agreement to share, in equal or unequal proportions, the profits of a concern, decisively fixes the joint responsibility of all the participators, as partners, though some were not known to be such at the time by persons dealing with the firm.

(x) Burnell v. Minot, 4 Moore,

340.

(y) Smith v. Barrow, 2 T. R. 476; Foster v. Allanson, id., 479; Fromont v. Coupland, 9 Moore, 319, 2 Bing. 170, S. C.; Coffee v. Brian, 3 Bing. 55; Bovill v. Hammond, 6 B. & C. 149; see Rackstraw v. Imber, Holt, N. P. R. 368.

(2) Fromont v. Coupland, supra. (a) Mainwaring v. Newman, 2 B. & P. 124; 2 Chitty R. 539, S. C.; Bo

sanquet v. Wray, 2 Marsh R. 319; 6 Taunt. 597, S. C.; Teague v. Hubbard, 8 B. & C. 345; Harvey v. Kay, 9 B. & C. 356; Hammond v. Teague, 6 Bing. 197; Hudson v. Robinson, 4 M. & Selw. 475. See further, 1 Chitty Pl. 5th ed. 46, 47. Effect of the death of the party who was doubly interested, as to the right of action of the survivor, Rose v. Poulton, 2 B. & Ad. 822.

(b) Milburn v. Codil, 7 B. & C.

419.

Here the maxim, Qui sentit commodum sentire debet et onus, is, applicable: he who enjoys a part of the profits ought to be liable, as he lessens that fund on which the creditor relied for payment (c). And even an executor, who continues his testator's share in a firm, for the benefit of the infant daughter of the deceased, is personally liable as a partner, to persons who became creditors of the firm after the testator's death; although the executor received no personal advantage, and his name was not added to the firm (d).

It is not necessary, to constitute a liability as a partner, that there should be a communion of losses. If there be a right to a share of the profits, the party is liable, although it were agreed that each individual should sustain his own losses. Two ship agents agreed to reside near each other, and that each should allow to the other certain proportions of each other's commissions and profits, and of the discount on the bills of the tradesmen employed in the repairs of their respective ships; but that each should sustain his own losses: and it was held that they were liable to third persons as partners (e). This doctrine was confirmed in a recent case (ƒ); in which the Court said (g) that the principle is, that where two houses agree that each shall share with the other, the money received in a certain part of the business, they are, as to such part, partners with regard to those who deal with them therein, though they may not be partners inter se.

In Ex parte Chuck, in the Matter of Starkey, &c. (h), where W. in July, 1820, advanced to S. and S., then carrying on business in partnership, the sum of 24,000l., and all three executed a deed by which a joint stock was created, but W. was not to have any definite aliquot proportion of the profits, but was to have an account of the profits as between themselves, so as to get 20007. or 24007. a year, as the case might be, out of the clear profit; it was

(c) Waugh v. Carver, 2 Hen. Bla. 246; Grace v. Smith, 2 Bla. R. 1000; Coope v. Eyre, 1 Hen. Bla. 43; M'Iver v. Humble, 16 East, 174; Cheap v. Cramond, 4 B. & Ald. 670; Fox v. Clifton, 6 Bing. 795, per Tindal, C. J.

(d) Wightman v. Watson, 1 M. & Selw. 412. As to the liability of the part owner of a ship, Harrington v. Fry, 9 Moore, 344; 2 Bing. 179, S. Č.

Registered owner, Cox v. Reid, 1 R. & M. 199; 1 C. & P. 602, S. C.

(e) Waugh v. Carver, 2 Hen. Bla. 235; Hesketh v. Blanchard, 4 East, 146; Ex parte Hamper, 17 Ves. 412.

(f) Cheapy. Cramond, 4 B. & Ald.

663.

(g) Id., 670. See Smith v. Watson, 2 B. & C. 401; 3 D. & R. 751, S. C. (h)8 Bing. 469; 1 M. & Scott, 615, S. C.

held, that although W.'s name never appeared to the world as a partner, yet he was liable as such.

Although the general rule clearly is, that a dormant partner is liable when discovered; yet, on the other hand, where it has never been known that he was such, he is not liable for goods furnished after he has actually ceased to be a partner (i).

S. & Co. carried on business under the name of the "Plas Madoc Colliery Company." S. withdrew from the firm, which afterwards became indebted to C.; no notice having been given to C., or the public, of S.'s withdrawing. It was held, that S. was not liable for the debt on a bill drawn on the company, there being no sufficient evidence that he had ever, while a partner, represented himself as such to C., or appeared so publicly in that character, that C. must be presumed to have known that S. had been a partner (k).

In the case of a partner retiring from the firm, and withdrawing his name therefrom, the distinction is, that he still remains liable, if he agree to receive, notwithstanding his secession, a share of the profits, as such, indefinitely: aliter if he be merely entitled to a certain annuity, or fixed sum, not dependent upon, or payable according to the profits, but payable at all events; and, in such case, there is no objection to the outgoing partner relying upon the profits, merely as a fund for payment of the money secured to him (7).

A nominal partner is one who, without having an actual interest in the profits of a concern, or being in reality a partner, allows his name to be used, or agrees that it shall be continued therein as a partner; and such person clearly is liable as a partner, although the particular creditor was ignorant at the time of dealing that the name was used (m). This: ule has no reference to the real

(i) Evans v. Drummond, 4 Esp. 89; Parkin v. Carruthers, 3 id., 248. See Lloyd v. Ashley, 2 C. & P. 138; and id., Addenda, iii. Creditors are not obliged to sue dormant partners; 1 Chitty Pl. 5th ed. 48, 49; De Mautort v. Saunders, 1 B. & Ad. 398. Dormant partner may sue; Cothay v. Fennell, 10 B. & C. 671; unless the other partner represented that he alone was interested; Lucas v. De la Cour, 1 M. & Selw.249. See 1 Chitty Pl. 5th ed. 13.

(k) Carter v. Whalley, 1 B. & Ad.