tual consent of the parties, by the decree | of a court of equity, or by the bankruptcy, outlawry, or felony of any of the partners. A court of equity will in some cases dissolve a partnership on the ground of incurable insanity in one of the partnership. A partner may agree that upon his death the business may be carried on beyond the legal period of dissolution in the hands of his children or other third parties, but this is properly an agreement for a new partnership. Partners cannot be relieved from future liabilities to third parties without notice to them and to the world in general that the partnership has ceased; but in the case of a dormant partner, if none of the creditors know that he is a partner, no notice of his retirement from the firm is necessary; and if it be known to some, notice to such only will be sufficient. On the death of a part ner, notice of the dissolution to third parties is unnecessary.

Partners are joint-tenants in the stock and all effects; yet upon the decease of a partner, his personal representatives become entitled to his share of the moveable stock and effects, and they thereupon become in equity, and, as it has been said, at law, tenants in common with the surviving partners. If, as is generally the case in the purchase of lands for the purposes of a partnership, they are conveyed to the partners as tenants in common, and one of the partners should die intestate, the legal estate in his share will descend to his heir, who will be tenant in common with the other partners. If the lands were conveyed to them as joint tenants, there will be no survivorship in equity; and it becomes then a question whether, upon the death of a joint trader, who, with his partners, has so purchased lands for the purpose of the trade, his share will descend for the benefit of his heir or his next of kin; and the better opinion seems to be, although the point has never been decided, that although the legal estate in freehold property purchased by partners for the purposes of their trade will go in the ordinary course of descent, yet the equitable interest will be held to be part of the partnership stock, and distributable as personal estate. Purchased lands may be conveyed so as to be always held as

real estate, and descend to the heirs of the several partners.

Any fraud on the part of one partner, either by misapplication of the partnership fund or in any other way, is a matter of which a court of equity will take cognizance. No partner has a right to engage in any business or speculation which must necessarily deprive the partnership of his time, skill, and labour, because it is the duty of each to devote himself to the interest of the firm. It is the duty of each partner to keep precise accounts, and to have them always ready for the inspection of his co-partner. Each partner is liable to the performance of all contracts of his co-partners, in the same manner as if entered into personally by himself, provided they relate to matters which are within the objects and purposes of the partnership. If the parties to the contract of partnership do not regulate it by express stipulation, the contract will be interpreted according to the established rules of law that are applicable to it. Though partners may have entered into a written agreement which specifies the terms on which the joint concern is to be carried on, yet if the partnership business be regularly conducted in any respect contrary to those terms, it is a legal conclusion that the partners have, so far as the change extends, changed their terms of agreement. For instance, if the agreement be that no partner shall draw or accept a bill of exchange in his own name, without the concurrence of all the others, yet if they afterwards adopt a practice of permitting one of them to draw or accept bills without the concur rence of the others, it will be held that they have so far varied the terms of the original agreement.

One partner may maintain an action of covenant against his co-partner, whether the covenant be for the payment of money or the performance of any act for commencing or establishing the partnership, or for the performance of any of the articles after the partnership has commenced; and if adequate compensation for the breach cannot be had at law, a court of equity will enforce a specific performance of the covenant itself. Courts of law do not allow actions of debt by ne

partner against another for money due | npon simple contract, as for money laid out by one partner for the purposes of the partnership. The partner who is aggrieved must therefore enforce his remedy by action of account, or by an application to a court of equity, by filing a bill for an account and a dissolution of the partnership. A partner cannot maintain an action of debt against his co-partner for work and labour performed, or money expended on account of the partnership; if therefore he has a claim upon a copartner for a sum of money due on account of the partnership, but not constituting the balance of a separate account, or a general balance of all accounts, his only mode of recovering the amount is by an action of account, or by a bill in a court of equity praying for an account, and usually also for a dissolution. If it turn out that an undertaking is impracticable, as if a machine, for the working of which the partnership was entered into, will not answer the purposes intended, and so the object of the parties is frustrated, or if either party commit fraud or gross acts of carelessness or waste in the administration of the partnership, the party aggrieved has a right to a dissolution, and the same will be decreed in equity. A partner is also entitled to an account of the partnership assets against his co-partner, but it was formerly held that he could not have it pending the partnership. If therefore he filed his bill for an account, it was also necessary to pray for a dissolution. It is now considered that a partner may have such an account on stating a proper case, without asking for a dissolution; but considering the circumstances under which a partner files a bill for an account of partnership dealings, it will seldom happen that it will be his interest not to pray for a dissolution of the partnership. Where one partner has committed such breaches of duty as would warrant a decree for a dissolution, a court of equity will interfere Summarily by injunction: as where one partner has involved the partnership in debt, or has himself become insolvent, the court will restrain him from drawing, accepting, or indorsing bills in the name of the firm, from receiving the partner

VOL. II.

A

ship debts, and from continuing to carry on the business by entering into new contracts. It will also restrain an action brought by one partner against his copartner on a separate and private account upon payment by the latter of the money into court. So it will restrain the application of the partnership property to a use not warranted by the articles; or an execution against the partnership property for the separate debt of one partner. court of equity will appoint a receiver where one partner excludes another from taking such part in the concern as he is entitled to take, and will do this even with a view to the continuation of the co-partnership, if it is for the benefit of the complaining partner, although such a step is usually taken with a view to a dissolution and winding up of the partnership affairs. Whether the party applying for a receiver wish a continuance or dissolution of the partnership, he must make out such a case to induce the court to interfere as would authorise a decree for a dissolution.

Generally speaking, one partner has an implied authority to bind the firm by contracts relating to the partnership, and he can do this by mere verbal or written agreements, or by negotiable securities, such as bills of exchange and promissory notes. One partner may pledge the credit of the firm to any amount; but there are some exceptions to this rule. A dormant partner is in all cases liable for the contracts of the firm during the time that he is actually a partner; and a nominal partner is in the same manner liable during the time that he holds himself out to the world as a partner. A partner will be liable in respect of a fraud committed by his co-partner, if committed in the capacity of partner, in contracts relating to the co-partnership, made with_third persons. Thus if a partner purchase goods such as are used in the business, and fraudulently convert them to his own use, the innocent partner, provided there be no collusion between the seller and the buyer, is liable for the price of the articles. One partner has no implied authority to bind his co-partner by deed, yet if he execute a deed on behalf of the firm, in the presence of and with the consent of his co-partners, it will bind the

21

firm. It seems that a release by one of several partners to a debtor of the firm binds the firm; but if such release be fraudulent, it will be set aside by a court of equity; and even a court of law will interfere to prevent a fraudulent release from being pleaded.

Where no time is mentioned in the deed of partnership for its commencement, the liabilities of the firm will commence from the date of the deed; but in adventures, unless the parties have previously held themselves out as partners, the liabilities commence from the time fixed by the contract. An in-coming partner is not liable for debts contracted before he joined the firm, but if he pay any of the old debts or interest upon them, or do other special acts, he may render himself liable in equity. On the retirement of an ostensible partner, notice of his retirement must be given, or he will be liable to the creditors of the continuing firm for subsequent contracts made by them, and such notice is usually given in the Gazette; but notice in the Gazette' will not bind creditors who are not shown to have seen the notice. Third persons have a claim against a dormant partner for contracts entered into by the firm while he was a partner. This claim is founded on such dormant partner being actually a partner; and therefore it is unnecessary, on the dissolution of a partnership between an ostensible and a dormant partner, to give | notice of the dissolution to the creditors, in order to protect the latter from subsequent contracts: for when the dormant partner has ceased to be a partner, he is relieved from all future liability.

It is collected from the majority of cases that a partnership contract is joint (not joint and several) both at law and in equity. Upon the death of a partner, therefore, the legal remedy against him in respect to the joint contract is extinguished, and the creditor can maintain an action against the surviving partners only. But the rule of equity as applicable to partners with respect to third parties was considered to be that the joint debts should be satisfied out of the joint estate; if that were insufficient, then subject to the claims of their separate creditors out of their separate estates proportionally; and if any

of them were insolvent, then out of the remaining separate estates proportionally. But the case of Devaynes v. Noble (1 Mer., 529), affirmed on appeal by Lord Brougham (2 R. & M. 495), has established the principle that a partnership contract is several as well as joint; and that a partnership creditor may have recourse for full payment to the estate of a deceased partner. And the same judge (Sir W. Grant) who decided that case, declared that a partnership debt has been treated in equity as the several debt of each partner, though at law it is only the joint debt of all. By this decision it appears that a joint creditor on the death of one partner obtains a more advantageous remedy against his estate than he would have had against his separate estate if living. But it seems doubtful whether this point can be considered as finally settled.

Notice of the decease of a partner to the creditors of the firm is not necessary to free his estate from future liability; but it is otherwise if one of the surviving partners be executor of the deceased. Ă deceased partner sometimes directs his executors to continue the trade; in that case his estate will be liable to the extent to which he directs his assets to be employed. If the executor exceed that limit, he becomes personally responsible.

In actions by partners, all the partners may, and all ostensible partners must, join as plaintiffs, unless the contract upon which the action is brought be in writing under seal, when only those partners who are included can sue thereon. But if a contract not under seal be made by some, for the benefit of themselves and others, those for whose benefit it is made, as well as those whose names appear on the contract, may sue. Persons who may legally be partners in foreign countries, as husband and wife, cannot sue here as partners, for by the law of England husband and wife are not permitted to sue as partners. On the other hand, partners trading abroad in such a manner as to make a partnership here, may sue as partners for consignments sent to this country, though they cannot sue as partners at the place of trading by reason of the particular law of that place. The construction of contracts is governed by

the laws of the country in which they are made; but remedies must be pursued by the means pointed out by the law of the country whose tribunals are appealed to. The laws of the country where the contract was made can only have a reference to the nature of the contract, not to the mode of enforcing it. If partners have occasion to prefer an indictment relating to the partnership property, such property may be stated in the indictment as belonging to one of them by name, and to another or others, as the case may be. But though it is not necessary to name all the partners, yet where there are other partners, that fact should appear in the indictment, or the prisoner must be acquitted.

A whole firm may become bankrupt, or some or one only of the partners may become so, whilst the remaining members may be solvent; but those only of the partners who have committed acts of bankruptcy are to be deemed bankrupts; and to constitute two or more bankrupts under a single fiat there must be evidence of joint trading. Upon the bankruptcy, the whole of the bankrupt's property vests absolutely in the assignees, who have the same remedy by action for the recovery of the debts due to the bankrupt, and for the redress of all civil injuries with respect to the property pass ing to them under the fiat, as the bankrupt would have had if no fiat had issued. Accordingly, when the bankruptcy is separate, the solvent partners join with the assignees in an action for the recovery of the joint debts. On the bankruptcy of one partner the solvent partners become tenants in common with the assignees of all the partnership effects. Upon the bankruptcy of one partner, under a separate fiat issued against him, his assignees take all his separate property and all his interest in the joint property; and if a joint fiat issue against all, the assignees take all the joint property, and all the separate property of each individual partner. Joint estate is that in which the partners are jointly interested for the purposes of the partnership at the time of the bankruptcy. Separate estate is that in which the partners are each separately interested at

that time.

Joint debts are those for which an action, if brought, must be brought against all the partners constituting the firm; in all cases therefore when a partner becomes liable for a debt contracted by his copartners, a joint debt is created, and the creditor is a joint creditor of the firm. Separate debts are those for which the creditor can have his remedy at law against that partner only who contracted them. (Collyer, On Partnership.)

On partnerships in banks and joint stock companies, see BANK and JOINT STOCK COMPANY. As to mines, a partnership for working a mine is considered by courts of equity in England like any other trade partnership. The mode in which property in ships is held by part owners is explained in SHIPS.

The fundamental rules of English partnership are the same as those of the Roman contract of partnership, the chief rules of which are contained in Gaius iii. 148-154; Dig. 17, tit. 2. The great extension of English industry and commerce has been accompanied by the growth of a large mass of law applicable to the contract of partnership, a great part of which has been made by the decisions of the courts on such cases as have been litigated. Accordingly the rules about partnership now form the subject of bulky treatises, the safest clue to the use of which is a clear conception of the fundamental notions of a contract of partnership.

PARTY WALLS. [BUILDING, Acts FOR REGULATING.] [EMIGRA

PASSENGERS ACT. TION, p. 831.]

PASSPORT, a printed permission signed by the secretary of state of the home department of a country, which allows a subject of that country to leave it and go abroad. When he has obtained this, the bearer must have his passport signed by the minister or agent of the state to which he intends to proceed. A foreigner who wishes to leave a country where he has been residing, generally obtains his passport from the minister or agent or consul of his own state. Such a document states the name, suruame, age, and profession of the bearer,