were remarkable for freedom and energy; and he was eminently distinguished for completely exhausting every subject which he discussed, and leaving no argument or objection on the adverse side unnoticed and unanswered. He traced doctrines to their source, or probed them to their foundations, and at the same time paid the highest deference and respect to sound authority. The reported cases do no kind of justice to his close and accurate logic; to his powerful and comprehensive intellect; *to the extent of his know- *21 ledge, or the eloquence of his illustrations. We may truly apply to the efforts of his mind, the remark of Mr. Justice Buller, in reference to the judicial opinions of another kindred genius, that "principles were stated, reasoned upon, enlarged and explained, until those who heard him were lost in admiration at the strength and stretch of the human understanding."

LECTURE XLIII.

OF THE LAW OF PARTNERSHIP.

PARTNERSHIP Contracts have been found by experience to be convenient to persons engaged in trade, and useful to the community. Merchants are thereby enabled to consolidate their credit, and extend their business. With the aid of joint counsel and accumulated capital, a spirit of enterprise is sensibly awakened, and boldness of plan and vigour of exertiou communicated to mercantile concerns. Partnerships have grown with the growth, and multiplied with the extension of trade; and the law by which they are regulated has been improved by the study and adoption of the best usages which the genius of commerce has introduced. It has also been cultivated and greatly enlarged, under a course of judicial decisions, until the law of partnership has at last attained the precision of a regular branch of science, and forms a distinguished part of the code of commercial jurisprudence.

In treating of this subject, I shall consider, (1.) The nature, creation and extent of partnerships; (2.) The rights and duties of partners, in their relation to each other, and to the public; (3.) The dissolution of the contract.

(1.) of the nature, creation and extent of partnerships. Partnership is a contract of two or more competent persons, to place their money, effects, labour and skill, or some, or all of them, in lawful commerce or business, and to *24 divide the profit and *bear the loss, in certain proportions. (1) The two leading principles of the contract

Puffendorf, Droit de la Nat. liv. 5. c. 8. sec. 1. Pothier, Traité du Contrat de

(1) Though no new member can be admitted into a firm without the consent of all the partners, yet a person who has obtained a share in the partnership stock, can maintain a suit in chancery for his share of the profits, after the expiration of the partnership. Mathewson v. Clarke, 6 How. R. 122.

are, a common interest in the stock of the company, and a personal responsibility for the partnership engagements. The common interest of the partners applies to all the partnership property, whether vested in the first instance by their several contributions to the common stock, or acquired afterwards in the course of the partnership business; and that property is first liable for the debts of the company; and after they are paid, and the partnership dissolved, then it is subject to a division among the members, or their representatives, according to agreement. If one person advances funds, and another furnishes his personal services or skill, in carrying on a trade, and is to share in the profits, it amounts to a partnership.a (1) But each party must engage to bring into the common stock something that is valuable; and a mutual contribution of that which has value, and can be appreciated, is *of the essence of the contract. It would be a valid *25 partnership, notwithstanding the whole capital was, in the first instance, advanced by one party, if the other con

Société, No. 1. Repertoire de Jurisprudence, art. Société. Story on Partnership, pp. 8. 10-19. The French ordinance of 1673, required the contract of partnership to be reduced to writing and registered; but that was the introduction of a new rule; and the regulation had gone into disuse at the time of Pothier, though he considered it to be a sage provision. (Pothier, ibid. Nos. 79. 82. 98.) The new French commercial code has retained the regulation of the ordinance, and it requires an abstract of the articles of partnership to be attested, and publicly registered; but the omission, though injurious to the parties as between themselves, does not affect the rights of third persons. (Code de Com. art. 39–44.) So, by the commercial Ordinances of Bilboa, confirmed by Philip V. in 1737, edit. N. Y. 1824, c. 10. sec. 4, it was made necessary, in every partnership, to reduce the articles to writing, and acknowledge them before a notary, and file a copy with the university and house of trade. This would seem not to be now the general law in Spain; for it is admitted that partnerships may be formed, as in the English law, tacitly as well as expressly. (Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2. c. 15, translated by Johnston, London, 1825.) In Missouri, no person or copartnership shall deal as a merchant without a license. R. S. of Missouri, 1835, p. 403.

Dob v. Halsey, 16 Johns. Rep. 34. Story on Partnership, 19. 39.

b Pothier, Traité du Con. de Soc. Nos. 8, 9, 10. Ferriere, sur Inst. 3. 26. Code Napoleon, No. 1833.

(1) Where two firms agree to share profit and loss, upon contracts for the purchase or sale of merchandise, to be made by each firm in its own name, and to be executed with its separate funds, they are not liable as co-partners, either between themselves or to third persons. Smith v. Wright, 5 Sandf. S. C. R. 113. See Pattison v. Blanchard, 1 Selden R. 185.

tributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not as an agent. A joint possession renders persons tenants in common, but it does not, of itself, constitute them partners, and, therefore, surviving partners and the representatives of a deceased partner, are not partners, notwithstanding they have a community of interest in the joint stock. There must be a communion of profit to con

• Reid v. Hollinshead, 4 Barnw. & Cress. 867. The test of partnership is a community of profit, a specific interest in the profits, as profits, in contradistinction to a stipulated portion of the profits as a compensation for services. Loomis v. Marshall, 12 Conn. Rep. 69. Champion v. Bostwick, 18 Wendell, 175. Vandenburgh v. Hull, 20 ibid. 70. Lord Eldon, ex parte Hamper, 17 Vesey, 404. See post, p. 34. Mr. Justice Story, on Partnership, p. 51, considers that a share in the net, and not in the gross profits, is here meant to constitute a partner. S. P. in Dry v. Boswell, 1 Campb. R. 330. To be a partner, one must have such an interest in the profits as will entitle him to an account, and give him a specific lien or preference in payment over other creditors. It is not essential to a partnership that there should be a communion of interest in the capital stock, and also in the profit and loss. If there be a community of profit, or of profit and loss, in the adventure or business between the parties, they will be partners in the profit and loss, though not partners in the capital stock. If, however, there be no agreement between the parties on the point, the presumption will be a community of interest in the property as well as in the profit and loss. Ex parte Hamper, 17 Vesey, 404. Story on Partn. 41, 42. 45. Reid v. Hollinshead, 4 B. & Cress. 867. The Roman law made the same distinction between a partnership in the capital stock and a partnership in the profit and loss arising from the sale. Dig. 17. 2. 58. Vinnius, ad Inst. 3. 26. 2. n. 3. There is also a distinction between a stipulation for a compensation for labour, proportioned to the profits, without any specific lien upon such profits, and which does not make a person a partner, and a stipulation for an interest in such profits, which entitles the party to an account as a partner. 1 Rose R. 91. Carey on Partnerships, 11. n. 1; and this Mr. Chancellor Walworth held to be a sound distinction as regards the rights of third persons. 18 Wendell, 184, 185; and Mr. Justice Wilde, in Denny v. Cabot, 6 Metcalf, 82. See, also, Story on Partnership, 49. 56-59.(1) It is further a general principle in partnerships, that no one partner is entitled to compensation for his services to the firm, nor for interest upon moneys advanced to, or deposited with the firm, for its use, without a special agreement, or some very peculiar circumstances to justify it. Lee v. Lashbrooke, 8 Dana, 214, and infra, p. 37. n.

Pearce v. Chamberlain, 2 Vesey, 33. But a stipulation at the commencement

(1) Stocker v. Bockelbank, 5 Eng. L. & E. R. 67.

stitute a partnership as between the parties, though it is not necessary that there should be a community of interest in the property itself. (1) They must be not only jointly concerned in the purchase, but jointly concerned in the future sale. A joint purchase, with a view to separate and distinct sales by each person on his own account, is not sufficient. If several persons, who have never met and contracted together as partners, agree to purchase goods in the name of one of them only, and to take aliquot shares of the purchase, and employ a common agent for the purpose, they do not, by that act, become partners, or answerable to the seller in that character, provided they are not to be jointly concerned in the resale of their shares, and have not permitted the agent to hold them out as jointly answerable with himself. The same distinction was known in the civil law: qui nolunt inter se contendere, solent per nuntium rem emere in commune; quod a societate longe *remotum. It has been repeat- *26 edly recognised in this country, and may be considered as a settled rule.

If the purchase be on separate, and not on joint account, yet if the interests of the purchasers are afterwards mingled with a view to a joint sale, a partnership exists from the time that the shares are brought into a common mass.d A participation in the loss or profit, or holding himself out to the world as a partner, so as to induce others to give credit on that assurance, renders a person responsible as a partner.

A

of the partnership, that the personal representatives of a partner should succeed him in the partnership, is held to be valid and binding by the common law, and by the French and Scotch law. Collyer on Partn. b. 1. c. 1. pp. 5, 6. Code Civil Franc. de Société, n. 433, 434. Bell's Com. 620; though it was otherwise in the Roman law. Dig. lib. 17. tit. 2. 1. 35. Story on Partnership, p. 7.

■ Hoare v. Daws, Doug. 371. Coope v. Eyre, 1 H. Blacks. 37. Gibson v. Lupton, 9 Bingham, 297.

b Dig. 17. 2. 33.

⚫ Holmes v. United Insurance Company, 2 Johns. Cases, 329. Post v. Kimberly,

9 Johns. Rep. 470. Osborne v. Brennan, 2 Nott & M'Cord, 427. Harding v. Foxcraft, 6 Greenleaf's R. 76.

Sims v. Willing, 8 Serg. & Rawle, 103.

• Lord Ellenborough, M'Iver v. Humble, 16 East, 173. Olmstead v. Hill, 2 Arkansas R. 346.

(1) If by the articles of copartnership a portion of the profits are set apart to pay the debt of a