II. The next question which arises under the definition is, what number of persons may be partners?

Generally speaking, there is no restriction as to the number of persons who may carry on business in copartnership (a). Where the number is great, the partnership is usually one of those which are called joint-stock companies; which companies, unless they are incorporated, are liable, with but slight exceptions, to all the laws affecting private partnership. As these companies differ in some respects from other partnerships in their formation, it will be convenient to speak of them more at large in a separate chapter. At present, it is proposed to consider the law of partnership with reference only to ordinary partnerships.

III. We have next to consider, what description of persons, in regard to their legal capacity, may be partners.

It is obvious, that any person of sound mind, and not under any legal restraint, may enter into a contract of partnership. It is clear, however, that, if a person signing a partnership agreement were, at the time, in a state of perfect intoxication, evidence of this fact would be admissible, to avoid the agreement; for, in the words of Lord Ellenborough, such a person has no agreeing mind (b).

An infant may enter into a contract of partnership, as into any other trading contract which may possibly turn out to be for his benefit. And this contract may be avoided by him, upon coming of age, though the person with whom he contracts will be bound by all the consequences (c). It seems, likewise, to follow from this doctrine, that a father may place out his infant son as a partner, without incurring any responsibility as a partner himself, provided he himself receive no advantage or emolument from the connexion, and is not in the receipt of any of the profits, in trust for his son. In a case, before the Court of King's Bench in Dublin, it appeared, that A. B., on the formation of a partnership, invested a sum of money in the firm for his infant son; and it was stipulated, in a letter written by

(a) There is an exception in the case of bankers, see post, Book 5, chap. 1. See also the coal act, 28 Geo. 3, c. 53, s. 2.

(b) Pitt v. Smith, 3 Camp. 33; and see Fenton v. Holloway, 1 Stark,

126; Lightfoot v. Heron, 3 You. & Col. 586.

(c) Holt v. Ward, Str. 939; Warwick v. Bruce, 2 M. & S. 205. But see post, Book 4, chap. 1,

art. 3.

the other partners of the house, that they should correctly account with A. B., as the trustee of his son, for one third profit of his son's capital, or any loss that might accrue, and should be governed and directed by his advice in all matters relative to the business. It was held, that this letter did not constitute A. B. a partner, the jury having found that the money was not invested by A. B. for his own benefit, and that he had not reserved to himself the power of drawing out the principal or profits as trustee for his son (a). At the trial of this case, at Nisi Prius, Burton, J., directed the jury, that, if a person deposit £1,000 in a partnership concern, as a capital for an infant son, and reserve no power over either it or the profits, he does not thereby make himself liable as a partner; otherwise, if he embark it in his son's name, reserving to himself a power of drawing profits or calling the partners to account, or having the profits paid to him as a trustee, although he may be liable afterwards to account for them.

As an alien ami may be a trader, and sue in personal actions (b), it follows that he may be, to all intents and purposes, a partner. But an Englishman domiciled in a foreign country at war with this country, and, à fortiori, an alien enemy, cannot be a partner-at least, he cannot sue in this country for a debt due to the firm. "The reason," said Rooke, J., "of the disability of a person resident in an enemy's country is, that the fruits of the action may not be remitted to a hostile country, and so furnish resources against this country (c)." But a person is not disqualified from suing or taking out a commission of bankruptcy, as a partner, although he be resident in an enemy's country, if he do not trade there (d), or if he be resident there for the purposes of trade, licensed by the government of this country-as, for instance, if he be resident for the purpose of receiving payments for licensed consignments (e).

A feme covert cannot sustain the character of partner, because she is legally incapable of entering into the contract of partnership; and although married women are, not unfrequently, en

(a) Barklie v. Scott, 1 Huds. & Bro. 83.

(b) Co. Litt. 129. b.

(e) M'Connell v. Hector, 3 B. & P. 113; and see Albretcht v. Susman, 2 Ves. & B. 323; OʻMealey v.

Wilson, 1 Camp. 482, and the cases mentioned in the note.

(d) Roberts v. Hardy, 3 M. & S.

533.

(e) Ex parte Baglehole, 18 Ves. 525; 1 Rose, 271.

titled to shares in banking-houses and other mercantile concerns, under positive covenants, yet, where this happens, their husbands are entitled to such shares, and become partners in their stead (a). But it should seem, that, by the custom of London, a feme covert trading separately from her husband may be a partner (b).

IV. Again, the parties must join together their money, goods, labour, or skill, for the purposes of trade. One partner, therefore, may bring into the trade money, another goods, and a third labour or skill; and they will thenceforth be partners as between themselves, provided they share proportionally the profit and loss of the concern.

In Peacock v. Peacock (c), a father took his son into business with him as a partner; and it was agreed that the son should be entitled to a moiety of the profits, although he contributed neither money nor effects, but only his personal labour. There was no question as to this being a partnership between the parties, and that the son might file a bill against the father, praying for a dissolution, an account of profits, and a receiver of the outstanding estate. And in a subsequent case it was held, that where, by agreement, persons have a joint interest of the same nature in a particular adventure, they are partners inter se, although some may contribute money and others labour. "Such a partnership," observed Abbott, C. J., "may well exist, although the whole price is, in the first instance, advanced by one party, the other contributing his time, and skill, and security, in the selection and purchase of the commodities (d)."

Consistently with these principles, it frequently happens, that one party is the sole owner of the goods, and the other the sole disposer or manager of them; in this case, if they share the profits they are partners in the profits, although one contributed goods and the other only trouble (e). And sometimes, neither party contributes goods, but both act as managers and disposers

(a) Cosio v. De Bernales, Ryan & Moody, 102; 1 Carr. & Payne, 266; Gow, Partn. 2.

(6) Bohun, Priv. Lond. 187; Beard v. Webb, 2 B. & P. 93.

(c) 16 Ves. 49.

(d) Reid v. Hollinshead, 4 B. & C. 878; 7 Dow. & Ryl. 444.

(e) Meyer v. Sharpe, 5 Taunt. 74.

of the goods of others, receiving a commission for their pains. In this case, if they share the commission, they are partners quoad hoc (a). But of this, more hereafter.

V. 1. Again, to constitute a partnership between the parties themselves, there must be a communion of profit between them. A communion of profit implies a communion of loss; for, "every man who has a share of the profits of a trade, ought also to bear his share of the loss (b)."

It is not, however, necessary that every party to the contract should undertake to share the loss. A man, on entering a partnership, may stipulate to be free from all liability to loss; and such stipulation will hold good as between himself and his cocontractors (c). In such case, he will still be a partner, enjoying, in addition to the advantages of partnership, the indemnity afforded him by his companions (d). Vinny, after giving his definition (e) of partnership, says :-" De damno nihil adjeci, quia lucrum tantum sperant spectantque socii; damnum præter votum eorum accidit. Sed nec damni communio ad substantiam societatis pertinet: quippe quæ etiam ita constitui potest, ut unus e sociis damni sit expers (f).”

V. 2. By a communion of profit is intended a joint and mutual interest in profit.

First, the interest must be joint: for, although persons may be jointly concerned in the purchase of goods, yet if they be not jointly concerned in the profit arising from the goods when purchased, they are not partners inter se. Thus, in Hoare v. Dawes (g) an action for money lent and advanced was brought against the defendant, under the following circumstances: The plaintiffs, who were bankers, had advanced a sum of money on certain tea-warrants of the East India Company to Contencin, a broker, who deposited the tea-warrants with the plaintiffs as a security, and also gave them his note of hand for the sum advanced. He had been employed by a number of persons, of

whom the defendants were two, to purchase a lot of tea at the East India Company's sale, of which they (together with himself) were to have separate shares, the lots being in general too large for any one dealer. The practice at such sales is, for the company to give a warrant, or warrants, to the broker or purchaser, for the delivery of the quantity of tea purchased, on payment being made. At the time of the sale, 251. per cent. is advanced, and is forfeited, unless the whole is paid on the third, which is the last, day of payment: if paid sooner, allowance is made for prompt payment. The warrants are often pledged, and money raised upon them; generally, considerably less than the supposed value of the tea. It happened, however, in this instance, that, between the time of the deposit of the warrants with the plaintiffs, and the time when the payment was to be made at the India House, the value of the tea sunk so much as to be considerably under the amount of the sum advanced. The broker, in the meantime, had become a bankrupt, and had informed the plaintiffs who his employers were, all of whom, except the defendants, were since either dead or become bankrupts. The shares of the defendants were to be two-sixteenths of the whole lot. The ground of the action was, that all the employers of the broker were to be considered as partners, and jointly and severally liable for the whole. The defendants owed nothing upon their own two-sixteenths. There was not any joint concern in the re-disposal of the tea. Upon this evidence the defendants obtained a verdict, and the Court of King's Bench afterwards discharged the rule which had been obtained for a new trial. Lord Mansfield-"I considered this, at first, as a case of dormant partners. The law with respect to them is not disputed, viz. that they are liable when discovered, because they would otherwise receive usurious interest without any risk; but, towards the end of the cause, the nature of the transaction and of these loans was more clearly explained, and I was satisfied with the verdict, and am now confirmed in my opinion. Is this a partnership between the buyers? I think it is not; but merely an undertaking with the broker by each, for a particular quantity. There is no undertaking by one to advance money for another, nor any agreement to share with one another in the profit or loss. The broker undertakes to buy and sell, but makes no advance without the security of the tea-warrants, which are considered as cash, and pass by delivery, like East India bonds. These war