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has not been extended to the case of two persons signing a joint note, though it is not easy to perceive a distinction between the cases, b

(2.) Of dormant partners.

*There is no difficulty, in the ordinary course of busi- *31 ness, with the case of an actual partner, who appears in

sec. 14, one or two or more joint contractors cannot, by promise or acknowledg ment, take a case out of the statute of limitations.

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The Roman law, which has been followed in France, distinguished between two kinds of universal partnership, the one universorum bonorum, and the other universorum quæ ex quæstu veniunt. By the first, the parties put into common stock all their property, real and personal, then existing or thereafter to be acquired. All future acquisitions, by purchase, gift, legacy or descent, went into this partnership as of course, without assignment, unless the gift or legacy was declared to be under the condition of not being placed there. Such a partnership was charged with all the debts of the parties at its commencement, and with all the future debts, and personal and family expenses. The validity of such a partnership was not questioned, notwithstanding it might be extremely unequal, and one might bring much more property into it than another, and acquire ten times as much by gift, purchase or succession, and notwithstanding one partner might have a family of children, and another be destitute of any. (Pothier, Traité du Con. de Soc. Nos. 28-42.) We need not be apprehensive that such a partnership will become infectious, for it appears to be fruitful in abuse and discord; and in the Code Napoleon, No. 1837, the more forbidding features of the connection are removed. Though it embraces all the existing property of the parties, and every species of gains, it does not, under the code, extend to property to be acquired by gift, legacy or inheritance, and every stipulation to that effect is prohibited. The Civil Code of Louisiana, which has throughout closely followed the Code Napoleon, has recognised these universal partnerships applying to all existing property; but they must be created in writing, and registered, and they are under the checks mentioned in the French code. Civil Code of Louisiana, Nos. 2800-2805.

The other species of universal partnership applies only to future profits, from whatever source they may be derived; and it is formed when the parties agree to a partnership without any further explanation. In this case, the separate acquisitions of each, by legacy or inheritance, are kept separate, and do not enter into the common mass; nor does it embrace present real property, but only the future issues and profits of it; and it is not, of course, chargeable with existing debts, though it was formerly chargeable with them when made in that part of France, under the Droit Coutumier. (Pothier, ub. sup. n. 43-53. Code Napoleon, No. 1838.) The same kind of general partnerships, embracing all the present and future property of the parties, is known in the laws of Spain and of Holland. Institutes of the Civil Law of Spain, by Doctors Asso & Manuel, b. 2. 15. Institutes of the Laws of Holland, by J. Vander Linden, translated by J. Henry, Esq., p. 573.

his character of an ostensible partner. The question as to the person on whom the responsibility of partner ought to attach in respect to third persons, arises in the case of dormant partners who participate in the profits of the trade, and conceal their names. They are equally liable when discovered, as if their names had appeared in the firm, and although they were unknown to be partners at the time of the creation of the debt.a

• Robinson v. Wilkinson, 3 Price's Exch. Rep. 538. Lord Loughborough, 1 H. Blacks. Rep. 48. Pitts v. Waugh, 4 Mass. Rep. 424. Duncan, 8 Serg. & Rawle, 55. Porter, J., 5 Miller's Louis. Rep. 406. 408. Swan v. Steele, 7 East, 210. Binney v. United States Bank, 5 Peters, 529. 561. A judgment against an ostensible partner, and not knowing of a dormant partner, is no bar to an action against all the partners. A judgment being a mere security, does not change any other collateral security, until satisfaction. Crews v. Owens, 1 Richardson's S. C. Rep. 111. Robinson v. Wilkinson, 3 Price, 538. Drake v. Mitchell, 3 East, 251. In Beckham v. Drake, 9 Meeson & W. 79, A. B. & C. were partners, and the latter a dormant partner, and the two first entered into a written contract, without the other being named or signing the contract; it was held, that a suit lay against all the three partners-the dormant partner not being known as such to the plaintiff when the contract was made. The partners who signed the contract had authority to bind the dormant partner by parol contract, whether with or without writing, though it would be different in the case of sealed instruments. The decision in Beckham v. Knight, in the C. B., was overruled, after much discussion and consideration on this point.

If partners agree that the business shall be carrried on in the name of one of them, or of some other person only, such name becomes the copartnership name, and all the members are bound by it. Bank of Rochester v. Monteath, 1 Denio, 402. Palmer v. Stephens, id. 471. The law as to dormant partners is confined to commercial partnerships. Pitts v. Waugh, 4 Mass. R. 424. Smith v. Burnham, 3 Sumner's R. 435. A dormant partner cannot join as plaintiff in an action, for there is no privity of communication between him and the party who contracted with the firm. He is, nevertheless, suable as a defendant, because he participated in the profits of the contract. Lloyd v. Archbold, 2 Taunton, 324. Boardman v. Keeler, 2 Vermont Rep. 65. If one partner borrows money in his individual name, a dormant partner is equally liable, if the borrower represented it to be for the use of the partnership; though without such a representation, the creditor must prove that the money went to a partnership use. Etheridge v. Binney, 9 Pick. 272. Lloyd v. Ashby, 2 Carr. & Payne, 138. Story on Partnership, 139. The statute law of New-York, of 1833, (Laws N. Y. sess. 56, c. 281,) has checked the use of fictitious firms, by declaring that no person shall transact business in the name of a partner not interested in his firm; and that where the designation" and company" or " & Co." is used, it shall represent an actual partner or partners, and the violation of the provision is made a penal offence. A similar provision exists in Georgia. Hotchkiss' Code, 377. (1)

(1) By statute of New-York, (Laros of 1854, c. 400, p. 1084,) the use of the name of a co

The question arises, also, in the case of a nominal or implied *partner, who has no actual interest in the trade *32 or its profits, and he becomes responsible as a partner, by voluntarily suffering his name to appear to the world as a partner, by which means he lends to the partnership the sanction of his credit. There is a just and marked distinction between partnership as respects the public, and partnership as respects the parties; and a person may be held liable as a partner to third persons, although the agreement does not create a partnership as between the parties themselves. Though the law allows parties to regulate their concerns as they please in regard to each other, they cannot, by arrangement among themselves, control their responsibility to others; and it is not competent for a person, who partakes of the profits of a trade, however small his share of those profits may be, to withdraw himself from the obligations of a partner. Each individual member is answerable in solido to the whole amount of the debts, without reference to the proportion of his interest, or to the nature of the stipulation between him and his associates. (1) Even if it were the intention of the parties that they should not be partners, and the person to be charged was not to contribute either money or labour, or to receive any part of the profits, yet if he lends his name as a partner, or suffers his name to continue in the firm after he has ceased to be an actual partner, he is responsible to third persons as a partner, for he may induce third

• Guidon v. Robson, 2 Campb. 802. Young v. Axtell, cited in 2 H. Blacks. 242. Porter, J., 5 Miller's Louis. Rep. 408, 409. Fox v. Clifton, 6 Bingham, 776.

Barry v. Neesham, C. B. November, 1846. It was held, that a participation in the profits, qua profits, created a partnership as to third persons, whatever the stipulation may be as between themselves.

• Waugh v. Carver, 2 H. Blacks. 235. Hesketh v. Blanchard, 4 East, 144. Nor can a partner exonerate himself from personal responsibility for the existing engagements of the company, by assigning or selling out his interest in the concern. Perring v. Hone, 2 Carr. & Payne, 401.

partnership, having relations with foreign countries, may be continued, on a change of the copartnership, by some or any of the copartners, their assigns or appointees. The act provides for the filing and publishing of a certificate of the change.

(1) If a partner mortgages his separate property for the security of the debts of the firm, he sustains to it the relation of a surety, and is entitled to the rights of that character. Averill v. Loucks, 6 Barb. S. C. R. 471.

persons to give that credit to the firm which otherwise *33 it *would not receive, nor perhaps deserve. This principle of law inculcates good faith and ingenuous dealing, and is now regarded by the English courts as a fundamental doctrine. It has been explicitly asserted with us, and is now incorporated in the jurisprudence of this country.b So strict is the law on this point, that even if executors, in the disinterested performance of a trust, continue the testator's share in a partnership concern in trade, for the benefit of his infant children, they may render themselves personally liable as dormant partners.c

(3.) Of sharers in profits.

A person may be allowed, in special cases, to receive part of the profits of a business, without becoming a legal or responsible partner.d Thus a party may by agreement receive, by way of rent, a portion of the profits of a farm or

Gill v. Kuhn, ibid. 333. Dob v. Halsey, 16 Johns.

■ Hoare v. Dawes, Doug. Rep. 371. Grace v. Smith, 2 Wm. Blacks. Rep. 998. Waugh v. Carver, 2 H. Blacks. Rep. 235. Baker v. Charlton, Peake's N. P. Rep. 80. Hesketh v. Blanchard, 4 East, 144. Ex parte Hamper, 17 Vesey, 404. Ex parte Langdale, 18 Vesey, 300. Carlen v. Drury, 1 Ves. & Bea. 147. Cheap v. Cramond, 4 Barnw. & Ald. 663. Best, J., Smith v. Watson, 2 Barnw. & Cress. 401. Lacy v. Wolcott, 2 Dowling & R. 458. b Purviance v. M'Clintee, 6 Serg. & Rawle, 259. Thompson, J., in Post v. Kimberly, 9 Johnson, 489. Rep. 40. Shubrick v. Fisher, 2 Desauss. Ch. Rep. 148. Osborne v. Brennan, 2 Nott & M'Cord, 427. Mr. Justice Story (Partnership, pp. 54, 55,) prefers the Roman law, which did not create a partnership between the parties as to third persons, without their consent, or against the stipulations of their own contract. He is of opinion that the common law has pressed its principles on this subject to an extent not required by, even if it is consistent with, natural justice; and that it would have been better if no partnership should be deemed to exist, even as to third persons, unless such were the intention of the parties, or unless they had so held themselves out to the public. For the Roman law, see Dig. 17. 2. 44. Voet, ad Pand. 17. 2. 2. But if a dormant partner, when his name has not been announced, and no credit given to him personally, as a supposed member, he may withdraw without giving any notice to the public. Lacage v. Sejour, 10 Robinson's Louis. R. 444.

• Wightman v. Townroe, 1 Maule & Selw. 412. The better way would be for the executors, in such cases, to have the trade carried on for the benefit of the

infants, under the direction of the court of chancery, as has frequently been done in Eogland. See 4 Johns. Ch. Rep. 627.

See supra, p. 25. n. b. as to a sharer of profits.

tavern, without becoming a partner. So, to allow a clerk. or agent a portion of the profits of sales as a compensation for labour, or a factor a per centage on the amount of sales, does not render the agent or factor a partner, when it appears to be intended merely as a mode of payment adopted to increase and secure exertion, and when it is not understood to be an *interest in the profits in the character *34 of profits, and there is no mutuality between the parties. A person in business may employ another as a subordinate, and agree to pay him a share of the profits, if any shall arise, without giving him the rights or liabilities of a partner.b (1) So, seamen take a share, by agreement with the ship-owner, in the profits or gross proceeds of a whale fishery or coasting voyage, by way of compensation for their services; and shipments from this country to India upon half profits are usual, and the responsibility of partners has never been supposed to flow from special agreements. This distinction seems to be definitely established by a series of decisions, and it is not now to be questioned; and yet Lord Eldon regarded the distinction with regret, and mentioned it frequently, with pointed disapprobation, as being too refined and subtle, and the reason of which, he said, he could not well comprehend.d

* Perine v. Hankinson, 6 Halst. 181.

Burckle v. Eckart, 1 Denio, 337.

Dixon v. Cooper, 3 Wils. 40. Cheap v. Cramond, 4 Barnw. & Ald. 670. Benjamin v. Porteus, 2 H. Blacks. 590. Meyer v. Sharpe, 5 Taunt. 74. Hesketh v. Blanchard, 4 East, 144. Dry v. Boswell, 1 Campb. N. P. 329. Wilkinson v. Frazier, 4 Esp. N.P.182. Mair v. Glennie, 4 Maule & Selw. 240. Geddes v. Wallace, 2 Bligh, 270. Muzzy v. Whitney, 10 Johns. Rep. 226. Rice v. Austin, 17 Mass. Rep. 206. Lowry v. Brooks, 2 M'Cord, 421. Baxter v. Rodman, 3 Piek. 435. Cutler v. Winsor, 6 Pick. 335. Hardin v. Foxcroft, 6 Greenleaf, 76. The Crusader, Ware's Rep. 437. Coffin v. Jenkins, 3 Story's Rep. 108. 112. See, also, supra, p. 25. n. b. Loomis v. Marshall, 12 Conn. R. 69. Hazard v. Hazard, 1 Story's R. 371. See, also, Story on Partnership, pp. 60-75, who has analyzed the principal cases on the subject. See, also, Pardessus, Droit Com. tome ii. n. 560; tome iii. n. 702; tome iv. 969; and Duvergier, Droit Civ. Franc. tome v. n. 48 to n. 56, for the French law as to the cases in which an agency, as distinct from a partnership, is within the intention of the parties.

Ex parte Hamper, 17 Vesey, 404. Ex parte Rowlandson, 1 Rose, 89. Ex parte Watson, 19 Vesey, 458. Miller v. Bartlet, 15 Serg. & Rawle, 137. Mr. Ca

(1) See same case, cited in note (b) reaffirmed. 3 Comst. R. 182.

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