livery of personal property belonging to the co-partnership: Buckley v. Carlisle, 2 Cal. 420. But one partner may sue his co-partner on a note: Van Ness v. Forrest, 8 Cranch, S. C. 30. Or one partner may sue another at law for damages caused by a premature dissolution on breach of co-partnership articles: Bagley v. Smith, 6 Seld. 489. And after division of a specific fund, he may sue for his allotted portion: Crosby v. Nichols, 3 Bosw. 450; Ross v. Cornell, 45 Cal. 133. So, one partnership firm may sue another, having a mutual partner, for an ascertained balance: Cole v. Reynolds, 18 N. Y. 74; and such mutual partner may elect whether to be plaintiff or defendant in the action.

2. Authority of Partner.-In California, a partner cannot make an assignment of the partnership property to a creditor, or in trust for creditors, nor dispose of the good-will of the business, nor dispose of the whole of the partnership property at once, unless it consists entirely of merchandise, nor do any act which would make it impossible to carry on the ordinary business of the partnership, nor confess a judgment, nor submit a partnership claim to arbitration, unless his co-partners have wholly abandoned the business to him, or are incapable of acting: Civil Code, sec. 2430. Nor can one member of a partnership bind his co-partner by a promissory note for a partnership demand, made after the dissolution of the partnership: Curry v. White, 51 Cal. 530. See, also, Stokes v. Stevens, 40 Id. 391.

3. Arbitration.-In Vermont, it was held that a partner has not authority, as such, to submit partnership matters to arbitration so as to make the award binding on the firm: Martin v. Thrasher, 40 Vt. 460. A partner may submit his own interest in the firm to reference, but he cannot thereby bind the other partners: Karthaus v. Ferrer, 1 Pet. 222; see, also, Lyle v. Rodgers, 5 Wheat. 394.

4. For an Accounting.-The proper form of complaint for a partnership accounting, in a case similar to the following, should be one alleging that the transaction was a partnership transaction; that the credit of both parties was involved; that the joint names and credits of the two firms, the one as drawers of the bill, and the other as acceptors, were the means by which they procured the moneys by which they bought the goods; that the same were bought on joint account by them as partners in the transaction; that a large amount of the goods, and the proceeds thereof, were on hand; that the joint indebtedness for these goods was outstanding, and should be paid out of the joint property arising out of the transaction; and that an accounting should be between the parties; and that an injunction be granted and a receiver appointed: Daris v. Grove, 27 How. Pr. 70.

5. Individual Interest.-The interest of a co-partnership cannot be given in evidence on an averment of individual interest; nor an averment of co-partnership interest be supported by a special individual contract: Graves v. Boston Mar. Ins. Co., 2 Cranch, Sup. Ct. 215.

6. Joint Assumpsit.—Where suit is brought on a partnership transac tion, the complaint stating a contract with the partner sued, evidence may be given of a joint assumpsit: Barry v. Foyles, 1 Pet. U. S. 311.

7. Judgment. If a complaint in an action against a company by its company name states substantially the conditions mentioned in section 656 of the Practice Act [Code C. P., sec. 388], and the sheriff returns that he has served the summons on one of the members of the company, and judg ment by default is entered up against the company by its name, to be en

forced against the joint property of the members, the judgment is not void, but may be enforced by execution against the company property: Welch v. Kirkpatrick, 30 Cal. 202. Such judgment is not a judgment against the person served with process, but against the company. Query. If there is an entire absence of any statement showing the existence of the conditions named in the section, and judgment is rendered against the company by default, is the judgment void, or are the conditions matters to be pleaded in abatement, and if not thus pleaded, waived? Welch v. Kirkpatrick, 30 Cal. 202. 8. Liability of Partners.-The whole of the partners are liable on a warranty by one of the members, on sale of firm property: Sweet v. Bradley, 24 Barb. 549. One partner is liable to third parties for injuries occasioned by negligence of another: Cotler v. Bettner, 1 Bosw. 490. All are liable for the fraud of one: Getty v. Devlin, 54 N. Y. 403.

9. Names of Partners.-A partnership consisting of several persons must sue or be sued by their names at length, and not in the name of the firm: Bentley v. Smith, 3 Caines, 170; T. R. 508. Such is the common law rule; but, "When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such cases being served on one or more of the associates; and the judgment in the action shall bind the joint property of all the associates, in the same manner as if all had been named defendants and had been sued upon their joint liability:" Code C. P., ɛec. 388.

10. Parties. As to partners as plaintiffs in an action, consult "Parties," ante. As to parties defendant, see ante.

11. Partners may sue in their individual names, but may give the copartnership any name they please: Crawford v. Collins, 30 How. Pr. 398; and must show themselves to be the persons composing the firm: McGregor v. Cleveland, 5 Wend. 475; Ord v. Portal, 3 Camp. 239, note; but see Wardell v. Pinney, 1 Wend. 217: and cannot sue in the firm name: Gilman v. Cosgrove, 22 Cal. 357.

12. Partnership, what Constitutes.-Actual intention is necessary to constitute a partnership inter se. There must be a joint undertaking to share in the profit and loss. Each party must, by the agreement, in some way participate in the losses as well as the profits: 2 Kent. Com. 23–28; Hazzard v. Hazzard, 1 Story, 373; Denny v. Cabot, 6 Met. 82; Muzzy v. Whitney, 10 Johns. 228; Chapion v. Bostwick, 18 Wend. 181; Smith v. Moynihan, 44 Cal. 53; Wheeler v. Farmer, 38 Id. 203. An agreement to divide the gross earnings does not constitute the parties to it partners: 1 Seld. 191; Story on Part., sec. 34, and cases cited in note 3; Wheeler v. Farmer, supra. A partnership may exist as to third persons, when there is no partnership as between the persons thus liable: See Ontario Bank v. Hennessey, 48 N. Y. 545; Manhattan Brass & Manuf. Co. v. Sears, 45 Id. 797; McStea v. Matthews, 50 Id. 166.

13. Partnership Property.-The plaintiff must recover on the allegations in his complaint, if at all, and if the complaint fails to aver that the property was partnership property, the judgment of the court should not find that fact: Sterling v. Hanson, 1 Cal. 480.

14. Special Partner.-In California, the general partners may sue and be sued alone, in the same manner as if there were no special partners: Civil Code, sec. 2492.

The plaintiff complains of the defendants, and alleges:

I. That at the time hereafter mentioned, the defendants were co-partners,. and doing business as merchants or traders [or otherwise] at the city of

firm name of A. B. & Co.

II. [State cause of action.]

[Demand of Judgment.]

under the

15. Allegation of Partnership. The same allegation will do where the plaintiffs are partners, substituting the word "plaintiffs" for "defendants.” Where the partnership is a material fact, it should be alleged: See Parties, ante.

16. Averment of Partnership.-A distinct averment of partnership between the plaintiffs is only necessary when the right of action depends upon the partnership: Loper v. Welch, 3 Duer, 644; and see Oechs v. Cook, Id. 161. When a joint ownership or joint contract will enable them to recover, it is no objection to their complaint that their partnership is not pleaded. For a sufficient, though informal, averment of partnership, see Anable v. Conklin, 25 N. Y. 470; Anable v. Steam Engine Co., 16 Abb. Pr. 286.

17. Dormant Partner. At common law, a dormant partner need not and ought not to be joined in a suit by the firm: 2 Esp. 468; 7 T. R. 361; 2 Taunt. 324; 1 Chitt. Pl. 9; 3 Cow. 84; Clark v. Miller, 4 Wend. 628; N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525. But the rule would appear to be otherwise under the Code of New York: See Secor v. Keller, 4 Duer, 416; and compare Belshaw v. Colie, 1 E. D. Smith, 213. But if a dormant partner be unknown in the contract of a lease, it was held that he need not be joined as defendant: Hurlbut v. Post, 1 Bosw. 28. They have the right, but are not bound, to sue all under such circumstances: Brown v. Birdsall, 29 Barb. 519. Where the name of a dormant partner was fraudulently concealed, an injunction to restrain a levy on partnership property was set aside: Van Valen v. Russel, 13 Barb. 590.

18. Firm Name,--Partners may be sued by their common name, whether it comprises the names of such persons or not; but the judgment in such case shall bind only the joint property of the associates: Code C. P., sec. 388.

The plaintiff complains, and alleges:

under the

I. That at the time hereinafter mentioned, the plaintiff and one C. D. were partners, doing business as merchants or traders [or otherwise] at the city of firm name of "John Doe & Co." II. [Statement of cause of action.] III. That on the .... day of ...

........ 9

187., at

said C. D. died, leaving the plaintiff the sole survivor of the said firm.

[Demand of Judgment.]

19. Cause of Action.-This form is necessary only when the cause of action accrued to the partnership.

20. Duties. The surviving partner is to wind up the affairs of the partnership, and pay its debts out of the assets, if sufficient, and divide the residue, if any, among those entitled to it: Gleason v. White, 34 Cal. 258. And a claim of the surviving partner against the estate of the deceased partner is contingent, and does not become absolute till the partnership affairs are settled.

21. Partnership Debt.—An action at law does not lie against the personal representative of the deceased partner. It must be brought against the survivor: Grant v. Shurter, 1 Wend. 148. So, when one of two joint covenanters dies: Gere v. Clark, 6 Hill, 350.

22. Promise, how Stated.—In an action for a debt which accrued to the partnership before the death of one of its members, that fact, the death of the member, and survivorship must be alleged, unless there has been an accounting with the survivor: 1 Johns. 36; Tom v. Goodrich, 2 Johns. 213.

23. Right of Possession.—A surviving partner has the exclusive right of possession, and the absolute power of disposition of the assets of the partnership: Allen v. Hill, 16 Cal. 113; see Code C. P. sec. 1585.

24. Services. He is not entitled to pay for his services in merely winding up the affairs of the concern: Griggs v. Clark, 23 Cal. 427. But if he expends his time and labor in the care and management of the partnership property, by which its value is enhanced, he should receive compensation for the same.

25. Survivor, Liabilities of.-The survivor of a partnership may be charged on a debt of the firm, contracted before the death of the other, and without averring the partnership, death, etc.: Goelet v. McKinstry, 1 Johns. Cas. 405; compare Holmes v. De Camp, 1 Johus. 34. And the personal representative of a deceased partner cannot be joined with him, unless survivor be insolvent: Voorhis v. Child, 17 N. Y. 354; Moorehouse v. Ballou, 16 Barb. 289; Higgins v. Freeman, 2 Duer, 650. Where, after the death of one partner, on account stated between defendant and the co-partnership, admitting balance due for goods sold in the lifetime of deceased, the survivor may recover it on insimul computassent, without averring the death of the other partner: Holmes v. De Camp, 1 Johns. 34.

I. That he is [Comptroller of the State of California]. II. [State the cause of action, etc.]

[Demand of Judgment.]

1. Actions Against Officers.-That in an action against the collector of the customs for refusing a clearance, a count stating that the plaintiff was the owner of the vessel, laden with a cargo of a certain value, the allegation is sufficient as respects ownership of the cargo, see Bas v. Steele, 3 Wash. C. Ct. 381.

2. Acts of Deputy.-In an action against a sheriff for wrongful acts of deputy, it is not essential that the complaint should allege that he is sheriff, nor that the acts complained of were committed by his deputy: Poinsett v. Taylor, 6 Cal. 78; Curtiss v. Fay, 37 Barb. 64. The act of the deputy should be alleged as that of the sheriff: People v. Ten Eyck, 13 Wend. 448; Ilirsch v. Rand, 39 Cal. 318; Campbell v. Phelps, 17 Mass. 246.

3. Official Character must be Averred.-The official character must be averred in the body of the complaint: Compare Gould v. Glass, 19 Barb. 185, with Smith v. Levinus, 8 N. Y. 472; Ogdensburgh Bk. v. Van Rensselaer, 6 Hill, 240; Delafield v. Kinney, 24 Wend. 345; Fowler v. Westervelt, 17 Abb. Pr. 59; 40 Barb. 374. A very short averment, if clear in its terms, is sufficient: Smith v. Levinus, 4 Seld. 472; Root v. Price, 22 How. Pr. 372; Hallett v. Harrower, 33 Barb. 537. Though a special authority must be averred with fullness sufficient to make it clearly apparent: Id. But a sheriff suing as such need not state in his complaint how he acquired his office. It is enough to show that he is sheriff in fact: Kelly v. Breusing, 33 Barb. 123; affirming S. C., 32 Id. 601.

4. Official Capacity, How Averred.---That "the plaintiff is Sheriff of the city and county of San Francisco," is a sufficient allegation of his official character: Kelly v. Breusing, 32 Barb. 601; affirmed in 33 Barb. 123. Where the title gives the names of the plaintiffs with the description "commissioners of highways," and in the body of the complaint it is averred "that the plaintiffs, commissioners of highways, complain," the character in which they complain is sufficiently indicated: Fowler v. Westervelt, 40 Barb. 374.

5. Title.-A party suing as a public officer should sue in his own name with the addition of his name of office: Paige v. Fazackerly, 36 Barb. 392;