If the defendant pleads that he is a special partner, a general denial is a sufficient reply to put in issue the due formation of the partnership or the incurring of the debt while he was a partner; but if the fact of a limited partnership is admitted, and it is claimed that the protection of the statute has been forfeited, the facts should be specially pleaded.2

3. Evidence.-Proof of a contract to enter into a limited partnership relation and an actual launching of the business, or acting in the relation of partners, is sufficient proof of a limited partnership; 3 but where all the partners are plaintiffs, a failure to prove the averment of limited partnership is not a variance.

Where a limited partnership is pleaded in defence, it is incumbent upon the defendant pleading it to prove the regularity and sufficiency of the proceedings for its formation, and the payment of the capital he has certified and sworn to, and the burden is then shifted to the plaintiff to prove acts by the special partner in violation of the statute. And where the partnership is organized for the purpose of carrying on any particular business, it is competent to prove the usages and customs of that business.R

In actions against foreign limited partnerships, the foreign law may be proved by the testimony of an expert, or by the production of printed copies of the statutes of the foreign State purporting on their face to have been published by authority of law.7

pendent of the limited partnership act. Howland v. Bethune, 13 Up. Can. (Q. B.) 270.

1. Bates Lim. Part., § 201.

2. Bates Lim. Part., § 201; and see Sharp v. Hutchinson, 49 N. Y. Super. Ct. 50; Benedict v. Van Allen, 17 Up. Can. (Q. B.) 234; Watts v. Taft, 16 Up. Can. (Q. B.) 256.

3. Gray v. Gibson, 6 Mich. 600. 4. Rosenberg v. Block, 50 N. Y. Super. Ct. 357

Publication may be proved in many of the States by the affidavit of the printer or publisher of the newspaper in which the publication was made.

5. Madison County Bank v. Gould, 5 Hill (N. Y.) 309; Patterson v. Holland, 7 Grant's Ch. (Up. Can.) 1; and see Sharp v. Hutchinson, 49 N. Y. Super Ct. 50.

In Hampden Bank v. Morgan, 2 Haz. Com. Reg. 57, it was held that the certificate duly filed and the affidavit are prima facie evidence of payment, by the special partner, of the stipulated capital.

The affidavit of the general partner, offered by the defendant as evidence of the formation of the partnership, can

not operate as rebutting proof of evi dence put in by the plaintiff to falsify it. Madison Čo. Bank v. Gould, 5 Hill (N. Y.) 309; Van Ingen. Whitman, 62 N. Y. 513.

An unrecorded certificate of a limited partnership agreement executed under the New York laws has no tendency to prove a general partnership, or any kind of a partnership whatsoever, without evidence aliunde. Gray v. Gibson, 6 Mich. 300.

6. Lea v. Guice, 21 Miss. (13 Smed. & M.) 656.

7. Barrows v. Downs, 9 R. I. 446. See Taylor v. Webster, 39 N. J. L. 102.

The same rule applies to general partnerships and probably to all other matters. As applied to the unwritten law and construction of statutes of foreign states, see Barkman v. Hopkins, 11 Ark. 157; Dyer v. Smith, 12 Conn. 384; Hooper v. Moore, 5 Jones (N. Car.) L. 130; Holman v. King, 7 Metc. (Mass.) 384; Barrows v. Downs, 9 R. I. 446; Danforth v. Reynolds, 1 Vt. 265.

As applied to statutes of a foreign state, see Clanton v. Barnes, 50 Ala. 260; Clarke v. Bank of Mississippi, 10

4. The Verdict and Fudgment.-If the special partner's defence is sustained in a suit against all the partners, the judgment should be in his favor and against the general partners. A judgment against the general partners, and the execution issued thereon, binds the entire interest of all the partners, in the same way as in actions against a general partnership; 2 but a judgment against the general partners does not merge the liability of a special partner who is afterwards found to have so violated the statute as to be a general one.3

10. Dissolution.-A limited partnership, like a general one, may be dissolved by the expiration of the period limited for its duration, by the death of a partner, by the bankruptcy or declared insolvency of the firm, or one of the partners; the sale or other disposition of the interest of a partner; war, where the partner. ship involves trading between States between which intercourse is forbidden; and by the completion of the enterprise for which it was formed.4 While crime, misconduct, insanity, hoplessness of success and other causes may be proper grounds for dissolution by decree of a court of equity on application.5

Ark. 516; Eagan v. Connelly, 107 Ill. 458; Rothrock v. Perkinson, 61 Ind. 39; Gleasons v. Davis, 9 Iowa 219; Taylor v. Bank of Illinois, 7 T. B. Mon. (Ky.) 576; Hueston v. Jones, 2 La. An. 937: Goodwin v. Appleton, 22 Me. 453; Merrifield v. Robbins, 8 Gray (Mass.) 150; Wilt v. Cutler, 38 Mich. 189; Emory v. Berry, 28 N. H. 437; Larwell v. Hanover S. F. Society, 40 Ohio St. 274; Mullen v. Morris, 2 Pa. St. 85; Ellis v. Wiley, 17 Tex. 134; Ennis v. Smith, 14 How. (U. S.) 400; Pierce v. Indseth, 106 U. S. 546.

Evidence that the volume of statutes is regarded as authoritative is admitted as proof of genuineness. Gleasons v. Davis, Iowa 219; Owen v. Boyle, 15 Me. 147; Hall v. Costillo, 48 N. H. 177; Hynes v. McDermott, 82 N. Y. 41; Am. Life Ins. & T. Co. v. Rosenagle, 77 Pa. St. 507; Spaulding v. Vincent, 24 Vt. 501.

If the volume of statutes purports to have been printed by private enterprise, the rule is different. Phillips v. Murphy, 2 La. An. 654; Martin v. Payne, 11 Tex. 292; Rape v. Heaton, 9 Wis. 328. 1. Lawrence v. Merrifield, 42 N. Y. Super. Ct. 36.

2. Van Alstyne v. Cook, 25 N. Y. 489; Artisans' Bank v. Treadwell, 34 Barb. (N. Y.) 553.

3. McArthur v. Chase, 13 (Va.) 683.

The contrary rule is adopted general partnerships, and if, one

Gratt.

as to

part

ner being omitted, it is not pleaded in abatement, such omitted partner cannot be afterwards sued on the original debt. See Mason v. Eldred, 6 Wall. (U. S.) 231; s. c., 7 Am. Law Reg. (U. S.) 402; overruling Sheehy v. Mandeville, 6 Cranch (U. S.) 253.

In a case where an execution against a firm was returned nulla bona, an application was made to the court, showing noncompliance with and breach of the statute by the special partner, and an auditor was appointed to report the fact, and on his return execution against the individuals was awarded. Whitall v. Williams, 6 W. N. C. (Pa.) 44; and see Bement v. Philadelphia, I. B. M. Co., 5 W. N. C. (Pa.) 58; s. c., 12 Phila. (Pa.) 494.

4. Bates Lim. Part., § 130; Pars. Part. (3rd ed.) 582; and see Ames v. Downing, 1 Bradf. (N. Y.) 321; Jacquin v. Buisson, 11 How. (N. Y.) Pr. 385; Wilkins v. Davis, 2 Low. (U. S.) 511; s. c., 15 Nat. Bankr. Reg. 60; Haggerty v. Taylor, 10 Paige (N. Y.) 261.

If A entered into a limited partnership with three others for a special object, advancing all the capital, with the accomplishment of that object, it ceases to be partnership property, and if then deposited with one of the partners to the use of A, he may recover it of such partner. Myers v. Winn, 16 Ill. 135.

5. Bates Lim. Part., § 130; Pars. Part. (3rd ed.) 583.

In case of dissolution by operation of law, no notice of dissolution is necessary; but no dissolution of such a partnership by act of the parties shall take place previous to the time specified in the certificate of its formation or renewal, until a notice of dissolution shall have been filed and recorded in the same manner as the original certificate and published once a week for a desig nated number of weeks in each county where the partnership has a place of business, and in the State paper,2 and such dissolution. by act of the parties is not complete until the time for publication has expired, and up to that time the special partner's capital is liable for all engagements the firm may make, and the prohibition against alteration, interference and withdrawal continues.3 These requirements must be strictly complied with.1

A dissolution by the expiration of the time for which the part1.ership was created is a dissolution by operation of law, and no notice is necessary; 5 but if the formation of the partnership was so defective as never to take effect, the liability for the acts of each continue, as in other general partnerships, until proper notice to dealers and to the public. And, in any case, it would

1. Bates Lim. Part., § 143. See In re King, 5 Ben. (U. S.) 453; s. c., 7 Nat. Bankr. Reg. 279.

2. See Limited Partnership statutes before cited. Haggerty v. Taylor, 10 Paige (N. Y.) 261; Lachaise v. Marks, 4 E. D. Smith (N. Y.) 610; Marshall v. Lambeth, 7 Rob. (La.) 471; Buckley v. Marks, 15 Abb. (N. Y.) Pr. 454; Buckley v. Lord, 24 How.(N.Y.) Pr.455. California, Dakota Territory and Wyoming Territory provide that the partnership is subject to dissolution the as a general partnership, but that the dissolution is not complete until the filing, recording and publishing. Connecticut is silent on the subject of dissolution, and Louisiana provides only that if the general partner use his name, or an illegal name, the special partner may immediately withdraw his capital and publish dissolution.

same

Filing proof of publication of the notice of dissolution is not required; therefore, where all the steps for dissolution, including publication, were duly made, the fact that proof of the publication was not filed until some time afterwards does not postpone the dissolution. Mattison v. Demarest, 4 Rob. (N. Y.) 161.

Under N. Y. Rev. Stat. 767, § 24, requiring notice of dissolution of any limited partnership previous to the time specified in the certificate of its formation to be published once in each week for four weeks, the day of the week which is taken for the first publication must be

taken for each of the subsequent publications. In re King, 5 Ben. (U. S.) 453; s. c., 7 Nat. Bankr. Reg. 279.

Nature of the Notice.-The notice prescribed is similar in its nature to that by which the special partnership may be created. The period for which the partnership was to continue has been made known to the public by the filing of the original certificates, and its publication in the newspapers. The notice thus given, the statute allows the parties to retract by another notice made public in a similar manner; and until the provisions of the statute respecting this second notice have been complied with, the public are authorized to rely upon the terms of the first notice. Beers v. Reynolds, 11 N. Y. 97; s. c., 12 Barb. (N. Ỹ.) 288.

3. Beers v. Reynolds, 11 N. Y. 97; s. c., 12 Barb. 288; Buckley v. Bramhall, 24 How. (N. Y.) Pr. 455; Buckley v. Marks, 15 Abb. (N. Y.) Pr. 454; Fanshawe v. Lane, 16 Abb. (N. Y.) Pr. 71. 4. In re Terry, 5 Biss. (U. S.) 110. 5. Marshall v. Lambeth, 7 Rob. (La.) 471; Haggerty v. Taylor, io Paige (N. Y.) 261.

Where the general partners continue to give notes in the name of the firm, after expiration, bona fide holders of such notes cannot participate ratably with creditors of the firm in the assets, nor can they ask for a receiver. Haggerty v. Taylor, 10 Paige (N. Y.) 71.

6. Haviland v. Chace, 39 Barb. (N. Y.) 283.

seem that, for the protection of the general partners, they should see that former dealers with the firm have actual knowledge of its dissolution, the same as in general partnerships. As the special partner cannot prevent the general partners from using the same firm name, he cannot be held liable for a continuance of the business by them after dissolution, even though it was done with his knowledge.2

While death operates to dissolve a limited partnership, the same as a general one,3 and the death of a special partner has the same effect as that of a general one, some of the States expressly provide that the parties may agree in their certificate and articles of copartnership that the death of either a general or special partner shall not effect a dissolution; in which case, with the consent of the representatives of the deceased partner, the business may be continued by the surviving general partners until the expiration of the period named in the certificate ;5 and this could probably be done even though there were no such statutory provision. In such case some positive act of assent on the part of the heirs or representatives is required, though there need not be a formal renewal of the partnership.8 There may also be a dissolution by abandonment.

Any act on the part of the firm which renders the special part ner generally liable, he being excluded by his contract from participation in the management of the concern, is a sufficient ground for a decree of dissolution in equity; 10 but such dissolution can have no effect in intervening contracts made while he was gener ally liable.11

Whether dissolution by death or bankruptcy requires notice is not certain, but it would seem to be expedient to give it.12

11. Winding Up.-After dissolution, the reason for prohibiting the special partner from interfering with the partnership affairs no longer exists, and he may take charge of or assist in the winding up of the partnership.13 And where the firm name is the

1. See Ker v. People, 110 Ill. 627; Bates Lim. Part., § 141.

2. Marshall v. Lambeth, 7 Rob. (La.) 471.

3. Ames v. Downing, 1 Bradf. (N.
Y.) 321; Jacquin v. Buisson, 11 How.
(N. Y.) Pr. 385; Mattison v. Demarest,
4 Rob. (N. Y.) 161; Perth Amboy
Mfg. Co. v. Condit, 21 N. J. L. (1 Zab.)
659.

4. Ames v. Downing, 1 Bradf. (N.
Y.) 321.
But see Perth Amboy Mfg.
Co. v. Condit, 21 N. J. L. (1 Zab.) 659.
5. See Limited Partnership statutes
Ill., §§ 13, 14; Pa. § 28; Fla., § 20.

6. Walkenshaw v. Perzel, 32 How.
(N. Y.) Pr. 233; s. c., 4 Rob. (N. Y.)
426; Richter v. Poppenhausen, 42 N.
Y. 373; s. c., 9 Abb. (N. Y.) Pr., N. S.
-263.

7. Walkenshaw v. Perzel, 32 How. (N. Y.) Pr. 233; s. c., 4 Rob. (N. Y.) 426.

8. Richter v. Poppenhausen, 42 N. Y. 373; s. c., 9 Abb. Pr., N. S. 263. See Jacquin v. Buisson, 11 How. (Ň. Y.) Pr. 385.

9. Outcalt v. Burnet, 1 Handy (Ohio) 404. But see In re Terry, 5 Biss. (U. S.) 110.

10. Patterson v. Holland, 7 Grant's Ch. (Up. Can.) 1; Tournade v. Haga. dorn, 5 N. Y. Supr. Ct. 288; Tournade v. Methfisel, 3 Hun (N. Y.) 144.

11. Tournade v. Methfisel, 3 Hun (N. Y.) 144; Tournade v. Hagadorn, 5 N. Y. Supr. Ct. 288.

12. Pars. Part. (3rd ed.) 584.

13. Wilkins v. Davis, 2 Low. (U. S.) 511; s. c., 15 Nat. Bankr. Reg. 60; Law

same as that of the general partner, the firm's creditors having priority over the individual ones, application should be made to the court to wind up the concern.1 Actions to collect assets must be brought in the firm name; 2 but if the general partner is dead, the special partner may sue in his own name in his capacity as survivor.3

The rules of distribution of assets are the same as in general partnerships, except that there must be equality of distribution among general creditors.5

LINE (See BOUNDARIES).-Ordinarily if a boundary runs to or by the "line" of an object, such as a house or a lot of land, the exterior limit of the object is intended. So, in common language, if one speaks of the "line" or "lines" of a street, the exterior limits would be understood and intended.6

E

1