rants are pawned with the lender, but the broker has no power to pledge the personal security of the principals: he cannot sell the warrants, and borrow more money on such personal security. It makes no difference whether specific tea, or the warrants, are delivered at the sale. It would be most dangerous if the credit of a person, who engages for a fortieth part, for instance, should be considered as bound for all the other thirty-nine parts. Non hæc in fœdera veni." Buller, J.-"This is a very plain case. The plaintiffs had no reason to consider the broker as a partner with the other persons; for though he had a share, he did not act or appear as a partner; nor were they partners as among themselves. They had never met or contracted together as partners. If this transaction were sufficient to constitute a partnership, a broker would have it in his power to make five hundred persons partners, who had never seen or heard of one another; or might, at his pleasure, convert his principals into partners or not, without any authority from them, by taking joint or separate warrants." Rule discharged.

The same principles were acted upon in the case of Coope v. Eyre (a), which was an action brought to recover the amount of a loss sustained by the sale of some oil under the following circumstances :-The defendants, Eyre for himself and partners, (who were Atkinson and Walton), general merchants, Hattersley for himself and Stephens, who were oil-merchants, and Pugh for himself and son, who were also oil-merchants, agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise. That Eyre should be the ostensible buyer, and the others share in his purchase at the same price which he might give. Hattersley & Co. were to have one fourth, Pugh one fourth, and Eyre & Co. the remaining moiety. In consequence of this agreement, Eyre alone gave general orders to a broker to purchase any quantity of oil which might offer. The plaintiffs accordingly contracted with Eyre to sell the oil in question. The contract with them was signed by Eyre for himself and Co.; and by way of collateral security two bills of exchange were deposited in the hands of the plaintiffs, one of which was accepted by the defendants Eyre, Atkinson, and Walton. The oil not having been paid for nor taken away, the plaintiffs, in pursuance of a power they had in that contingency,

(a) 1 H. Bl. 37.

authorized the broker to sell it. The deficiency on this re-sale was very great; the bill of exchange accepted by the defendants was presented to them for payment, and refused; and before the action was brought, Eyre & Co. had become bankrupts. The question was, whether or not the other defendants, Hattersley, Stephens, and Pugh, were liable for the amount of the loss sustained by the plaintiff's.

At the trial, Lord Loughborough declared his opinion, that, as the defendants did not appear to have been jointly concerned, further than the purchase of the oil, they had not such a joint interest in the profit and loss as the law made necessary to a partnership. The jury accordingly found a verdict for the defendants; and the Court of Common Pleas, with the exception of Wilson, J., held the verdict to be right. "In the present case," observed Gould, J., "there was no communication between the buyers as to the profit or loss. Each party was to have a distinct share of the whole, the one to have no interference with the share of the other, but each to manage his own share as he judged best. I am of opinion, therefore, that the Court cannot adjudge the present case a partnership." Mr. Justice Heath, likewise, observed, that this was a sub-contract; Pugh, Hattersley, and Stephens were not partners, inasmuch as they were interested in the purchase of the commodity, and not in the subsequent disposition of it. And Lord Loughborough said, "This being an action on a contract of sale, the vendor can have no remedy against any person with whom he has not contracted, unless there be a partnership, in which case all the partners are liable as one individual. It has been justly observed, that a secret partnership can be no consideration to the vendor, though, for reasons of policy and general expedience, the law is positive with respect to the secret partner, that when discovered he shall be liable to the whole extent. In many parts of Europe (a) limited partnerships are admitted, provided they be entered on a register; but the law of England is otherwise, the rule being,

(a) When M. Colbert employed Savary to digest the Ordonnance de Commerce of 1673, that judicious merchant prepared a system of very anxious regulations for securing the publicity of all contracts of partnership. Bell, Comm. Vol. 2, p. 627.

The kind of document required by the ordonnance is stated by Pothier, Traité du Contrat de Société, cap. 4, art. 2, sec. 2; but he observes, that these provisions have fallen into disuse.

that if a partner share in advantages, he also shares in all disadvantages. In order to constitute a partnership, a communion of profit and loss is essential. The shares must be joint, though it is not necessary they should be equal. If the parties be jointly concerned in the purchase, they must also be jointly concerned in the future sale, otherwise they are not partners. Eyre was a mere speculator, and the other defendants were to share in the purchase, but were not jointly interested in any subsequent disposition of the property. Though they may, by other purchases, have concluded themselves as to some particular vendors, yet, in the transaction in question, there was not that communion between them necessary to make them partners; their agreement was a sub-contract, which, as my brother Heath observed, may be executory; it was to share in a purchase to be made. The seller looked to no other security but Eyre & Co., to them the credit was given, and they only were liable."

Again, upon principles similar to those of the foregoing cases, if two persons jointly agree to do a particular piece of work, but the money received for such work is not to be employed on their joint account, the persons so contracting are not partners. Thus, in the case of Finckle v. Stacey (a), joint articles were entered into by the plaintiff and defendant for doing a particular piece of work for the Duke of Marlborough, on account of which several sums of money had been jointly received by them, and immediately divided between them. There being a sum demanded by them in arrear, which the Duke refused to pay, as being unreasonable, Stacey applied to Finckle to join him in a suit to recover what was in arrear; which he refused to do, declaring he had several advantageous works under the Duke, which he should lose should he join in a suit; on which Stacey applied, and got his own half of the sum which was due to the two. A bill was then brought for a moiety of the money so received, and insisted it should be considered as a partnership in trade, and this money as so much received on the joint account. But the Court were of opinion it was not to be considered as a partnership, but only an agreement to do a particular act; between which there is great difference; and that it is so, is plain, for the money which they had received they imme

(a) Sel. Ca. Ch. 9.

diately divided, and did not lay out on a common account. The bill was dismissed with costs.

Upon this case, however, it is to be observed, that if no application had been made to the plaintiff to sue the Duke, a bill for an account, supposing an account necessary, would clearly have been sustainable against the defendant on other grounds than those of partnership. Here, however, the plaintiff, for his own private ends, had absolutely refused to join in suing for the money; and the Court observed: "It is pretty extraordinary that he should come here to have the benefit of another's act, in which he refused to join; which refusal was with a corrupt view for his own advantage, and not on a common account, the money due on which he would rather sacrifice than forego his own particular advantage. And here is no insolvency in the Duke; if there had, perhaps it would have deserved consideration.”

V. 3. It sometimes happens that persons purchase goods which they ship to a foreign country, under an agreement that the proceeds of the sale of the goods shall be invested in a return cargo. Cases of this sort give rise to nice questions whether a partnership exists in the entire transaction, that is to say, in the joint purchase, joint sale, and joint re-investment, or only in parts of the transaction. But it is clear, upon the principles already laid down, that no partnership can exist, either in the entire transaction or in that part of it which relates to the disposal of the return cargo, unless there be an agreement to share in the future sale of the return cargo. On this important point, the American case of Post v. Kimberly (a), is well worthy of consideration. In that case, A. & B., partners in trade, owning three-fourths of a vessel, and C. & D., also partners and owning the other fourth, agreed to fit her out for a voyage from New York to Laguira. A. & B. purchased threefourths of the cargo, and C. & D. purchased the other fourth, and it was agreed that the whole cargo should be sold at Laguira, for the joint account of A. & B. and C. & D., and that the proceeds should be invested in a return cargo. A. went out as supercargo and agent, and having sold the cargo at Laguira, he in

(a) 9 Johns. 470; and see Holmes v. United Ins. Co., 2 Johns. 239;

United Ins. Co. v. Scott, 1 Johns. 106.

vested the proceeds in a return cargo, with which he sailed for New York. He was obliged, however, by stress of weather to put into Norfolk, where he sold the return cargo, except a small quantity of coffee, and received payment in bills of exchange, which he indorsed, and remitted, with the coffee, to P. & Q., who were creditors of his own firm of A. & B., and who had notice of C. & D.'s interest in the cargo. C. & D. having demanded of P. & Q., their proportion of the proceeds of the sale, it was held by the Supreme Court of the United States, that they were entitled to receive it, for that there was no such partnership existing between the two firms of A. & B., and C. & D., as to render the disposition of the return cargo by A., binding as the act of a partner on C. & D. Thompson, J., said-" A partnership, being matter of contract between parties, they may limit and modify it at pleasure. There is, therefore, no incongruity in admitting a partnership in the outward cargo (a) and not in the return cargo, if such was the agreement of the parties, or the necessary inference o law from the facts proved. It is true, that the proceeds of the outward cargo were to be invested in a return cargo. But there was no agreement to share the profit and loss on the return cargo, nor any provision for a joint sale, on its arrival in New York. It is necessarily, therefore, to be inferred, that each party was to take his share of the coffee, and dispose of it at his pleasure, without any community of interest as to profit and loss. Here, therefore, was the want of one of the most essential requisites of a partnership." And Kent, Chancellor, said, there was no partnership in these proceeds, because there was no agreement to be jointly concerned in the final result of the adventure (b).

V. 4. Secondly, in order to constitute a communion of profit between the parties, the interest in the profit must be mutual ; that is, each person must have a specific interest in the profits as a principal trader; he is not a partner, if he merely receive out of the profits a compensation for his trouble in the charac

(a) It was held that there was no partnership in the outward cargo. See post, Book 3, chap. 3, sect. 1. (b) This, and other American cases, fully recognise the doctrine

C

established by Hoare v. Dawes and Coope v. Eyre; but see contrà, Everett v. Chapman, 6 Conn. R. 347; Musien v. Trumpbour, 5 Wendell, 274.