ADDENDA ET CORRIGENDA.

Page 7. In the note, for "art. 5,” read “art. 6.”

Page 8, note (a). Dele the words, "See also the Coal Act, 28 Geo. 3, c. 53. s. 2;" that Act having been repealed by 6 & 7 Will. 4, c. 109.

In note (c), for “art. 3,” read "art. 4.”

Page 45, in note. For "37 Geo. 3," read " 57 Geo. 3."

Page 84. For “Balmain v. Shore," read “ Bell v. Phyn.”

Page 103, line 15. By way of note to the sentence ending with the words, "partnership at will," add the following:-Therefore, unless an executor can compel a sale, as stated in the text, the surviving partner will be entitled to use the name of the old firm; and if the executor attempt to do so, he will be restrained by injunction. Lewis v. Langdon, 7 Sim. 421. For "note," read “note (m).”

Page 103, note (c).

Page 200, note (b).

For "chap. 2," read "chap. 3."

Page 304. At the conclusion of this page, add the following paragraph:The general rule, however, which should seem to be the result of several of the foregoing decisions, namely, that the knowledge by partners of a fund being used for partnership purposes, makes them all trustees of that fund, and implicates them in any breach of trust connected with it, appears to be disregarded in the case of partners who enter and leave the firm during the continuance of the breach of trust. Thus in Twyford v. Trail, 7 Sim. 92, A., a partner in a house of agency in India, died, having by his will directed his estate to be called in, and invested on certain trusts, and appointed two of his copartners his executors. They however suffered his share of the partnership to remain in the house. After A.'s death, B. and C. were admitted as partners, and they knew that A.'s share was remaining in the house, and that it was subject to the trusts of his will. They afterwards retired, and other partners were admitted. The house ultimately failed. Sir L. Shadwell held, that B. and C. were not responsible for the breach of trust committed by their copartners, the executors. It must be remarked, however, that in this case B. and C., upon their retirement from the partnership, received a release from A.'s executor in India, of all demands in respect of any matter relating to their copartnership.

Page 365. To note (b) add—And see Clavering v. Westley, ante, p. 260. Page 442. After line 27, add the following paragraph:-Upon principles analogous to those on which the foregoing cases were decided, where A., being indebted to his agents B. and C., authorized them to effect a policy on his life, in their own names, for seven years, and the policy was effected, and by some means allowed to lapse at the end of two years, and afterwards

с

B. and C., having taken a new partner, D., effected a new policy on A.'s life, in the names of B., C., and D., it was held, that they had no authority to do so. Barron v. Fitzgerald, 4 Jurist, 88.

Page 540. In note (c), insert the following paragraph:-In an action against one of three makers of a joint and several promissory note, another of the makers was called as a witness, who stated on the voir dire, that he had signed the note only as a surety for the defendant. It was held that he was a competent witness to prove the making of the note by the latter. Page v. Thomas, 4 Jurist, 724.

Page 544. To the authority of Wilson v. Hirst, mentioned in note (d) of this page, add Birkett v. Wood, 4 Jurist, 745.

Page 777, line 11. Add-And where judgment has been obtained against a banking company, sued in the name of their public officer, according to the provisions of 7 Geo. 4, c. 46, the Court will not allow a suggestion to be entered on the roll, to affect the other members of the company with the damages and costs in the action, but the plaintiff must proceed against them by scire facias. And if it is intended to proceed against parties who are members of the company at the time of the judgment, a scire facias may be issued without leave of the Court; but if it is sought to affect parties who were only members at the time of the contract, application must be made to the Court for leave for that purpose. Cross v. Law, 4 Jurist, 802. Page 790. Before the last three lines insert the following paragraph :· The case of Vice v. Lady Anson, seems distinguishable from the late case of Tredwen v. Bourne, 4 Jurist, 747, in this important particular, namely, that in the former case Lady Anson was not an active promoter of the concern, while in the latter, the steps taken by the defendant were of such a nature as should seem to have placed him in the situation of a person holding himself out as a partner to the world; though that is not expressly stated in the report. In the latter case an action was brought for goods supplied to the use of a mining company, of which the defendant was a member, and held 100 shares; and the Court of Exchequer were of opinion, in support of the ruling of Rolfe, B., at Nisi Prius, that the fact of the defendant being a shareholder, coupled with his having signed a requisition for the purpose of removing one of the directors, was evidence to go to the jury that he knew the directors were working the mine, and that they had his concurrence in so doing; and that the jury, on this evidence, were warranted in holding him liable, although it was also in evidence that all the shares had not been subscribed for, and that the concern had failed.

A

TREATISE ON PARTNERSHIP.

BOOK THE FIRST.

OF THE CONSTITUTION OF THE CONTRACT OF PARTNERSHIP.

CHAPTER I.

OF THE FORMATION OF THE CONTRACT.

THE law of partnership, as administered in England, rests

on a foundation composed of three materials: the common law, the law of merchants, and the Roman law. Thus, by the common law, a partner has no power to bind his copartner by deed. By the law of merchants he has a power to bind his copartner by a bill of exchange; again, by the law of merchants, there is no survivorship in the partnership stock. On the other hand, though there be no survivorship in the stock, yet by the Roman law the surviving partners have the right to carry on the business by themselves, in exclusion of the children or representatives of the deceased partner.

But merchants were always considered as subject to the jurisdiction of the common law (a). And accordingly it is in the discretion of the judges to determine how far the law of merchants shall be permitted to controul the law of the land. Thus, although in the words of Hobart, C. J., "the custom of merchants is part of the common law of this kingdom, of which the judges

(a) Beawes, 38.

B

ought to take notice; and if any doubt arise to them about their custom, they may send for the merchants to know their custom, as they may send for the civilians to know their law (a):” yet, on the other hand, Lord Holt says, "we take notice of the laws of merchants that are general, not of those that are particular usages" (b). And again, in a case where it was contended, that, according to the usage of merchants, a partner ought to be allowed to bind his copartners by deed, the Court of King's Bench held the contrary, Lord Kenyon observing, that the law of merchants was part of the law of the land; that in mercantile transactions, in drawing and accepting bills of exchange, it was never doubted that one partner might bind the rest. But the power of binding each other by deed was then for the first time insisted on; and the consequences of permitting such a power to exist would be highly dangerous to the public interests (c).

II. Persons in trade may be viewed in the situation either of partners as between themselves, or partners quoad third persons. Partnership as between the parties themselves is a voluntary contract between two or more persons for joining together their money, goods, labour, and skill, or any or all of them, under an understanding that there shall be a communion of profit between them, and for the purpose of carrying on a legal trade, business, or adventure (d).

A learned writer has observed, that, under the Romans, the social contract or partnership needed no other solemnity but the consent of the parties, without any writing at all; and that, according to the civilians, a partnership is contracted sometimes tacitly; where, for example, a thing being bought in common is not divided, but the parties interested, without explaining them

(a) Winch, 24. (b) 2 Salk. 443. (c) 7 T. R. 210.

(d) Societas est contractus juris gentium, bonæ fidei, consensu constans, super re honestâ, de lucri et damni communione; quam inire possunt omnes liberam habentes rerum suarum administrationem. Voet. Comm. lib. 17, tit. 2, s. 1. Societas est contractus

quo inter aliquos res aut operæ communicantur, lucri in commune faciendi gratiâ. Vinn. Comm. lib. 3, tit. 26, s. 1. Ita posse coiri societatem non dubitatur, ut alter pecuniam conferat, alter non conferat; et tamen lucrum inter eos commune sit; quia sæpe opera alicujus pro pecuniâ valet. Inst. lib. 3, tit. 26, s. 2. And see Puffendorf, lib. 5, 8; Wats. Partn. 1.