Ij 
 
P77 
 
Cornell UnlversHy Library 
 KD 2051.P77 1888 
 
 A digest of the law <>' P,?'J,!}Sf,?!ilii}|,|i'l|Sli||| 
 
 3 1924 022 343 838 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924022343838 
 
A DIGEST 
 
 OF THE 
 
 LAW OF PARTNERSHIP, 
 
 WITH AN 
 
 INTEODIJCTOEY ESSAY ON CODIFICATION 
 
 BY 
 
 FREDERICK POLLOCK, 
 
 BABEISTEE-AT-LAW, 
 
 M.A., HON. LL.r. EDtlir., 
 
 PEOFESSOE OF OOMMOIT LAW IN THE INNS OF OOUBI, 
 
 LATE FELLOW OF TBINir? COLLBOE, OAMBEIDaE. 
 
 FOURTH EDITION. 
 
 LONDON: 
 STEVENS AND SONS, 119, OHANCEET LANE, 
 
 1888 
 
LONDON : 
 PEINTED BT 0. F. EOWOETH, GEKAT NKW STBBET, FETTEB LANS — B.C. 
 
INTRODUCTION. 
 
 The present work was undertaken, in the first place, in 
 •order to supply the want of a concise work on the" Law of 
 Partnership : and if this were aU, it would be needless to 
 say much by way of introduction. But the form I have 
 adopted invites, if it does not demand, some words of 
 explanation ; the adoption of it, moreover, commits the 
 writer to certain opinions on matters of much wider range 
 ■and importance than the subject actually handled. Those 
 opinions are stUl far from being established, and one who 
 ■attempts to exemplify them in practice is in some sort 
 "thereby bound to set forth his understanding of them, and 
 to bear his part, however slight it may be, in their justifi- 
 •cation. My desire has been to follow to the best of my 
 power the example set by Mr. Justice Stephen in his 
 ■* Digest of the Law of Evidence,' and repeated by him 
 in the yet more weighty and difficult work of a ' Digest 
 of the Criminal Law,' which has since been made the 
 foundation of a Draft Code. This being said, it is almost 
 superfluous to say that I agree with him in thinking the 
 Indian Codes a desirable model for the exposition of 
 English law, by authority if possible, but if and so far as 
 that is too much to hope for, then by private endeavour ; 
 and that I Kkewise agree with the reasons which he has 
 given for that opinion both in the introduction to his 
 'Digest of the Law of Evidence' and on various other 
 occasions. Some of those reasons, however, I may without 
 
 «2 
 
iv INTRODUCTION. 
 
 presumption try to restate in my own way, this being a 
 ■ topic on wMch repetition is certainly not vain in the sense 
 of being needless ; and it seems also proper, in addition 
 to this general statement, to explain why the subject of' 
 Partnership has appeared to me a specially fit one for an 
 experiment of this kind. 
 
 The method of stating the law in general propositions- 
 accompanied by specific illustrations was introduced into 
 Indian legislation by Macaulay, though not brought into- 
 operation till many years afterwards, and to him the merit 
 of the invention is chiefly if not wholly attributable.^ It 
 seems to me the greatest specific advance that has been 
 made in modern times in the art called by an ingenious 
 writer " the mechanics of law-making." We should by no 
 means underrate the gradual improvements of detail, the 
 introduction of orderly arrangement and cutting down of 
 prolix and slovenly drafting, which have made recent Acts 
 of Parliament comparatively readable ; but Macaulay's 
 invention stands on a different level. It is an instrument 
 of new constructive power, enabling the legislature to com- 
 bine the good points of statute-law and case-law, such as. 
 they have hitherto been, while avoiding almost all their 
 respective drawbacks. 
 
 Case-law gives particular instances and concrete analo- 
 gies, from which general rules may be inferred ^ith more 
 or less exactness, and their application to new instances 
 predicted with more or less certainty; but it does not, 
 strictly speaking, lay down general propositions beyond 
 
 ' Traces of the idea may bo found in Bentham. He proposed to 
 give in the body of a Code a running accompaniment of authorita- 
 tive reasons and explanations, which might have dealt more or less 
 in specific instances ; and such instances do occur in the ' Specimen 
 of a Penal Code' (Works, vol. i.). But this amounts at most to a 
 very vague foreshadowing of the Anglo-Indian method. Compare 
 Mr. Whitley Stokes's 'Anglo-Indian Codes,' Oxford,_1887, p. xxiii. 
 
INTRODUCTION. v 
 
 the limits wMck happen to be determined by the precise 
 facts of each case. Every decided case does within those 
 limits affirm a general proposition, with the help of the 
 fixed understanding by which our Courts are governed, 
 that similar decisions are to be given on similar facts. It 
 involves, namely, the decision of all future cases exactly 
 like it, and also of all such as, though not exactly like it, 
 may be in the opinion of the Court so nearly like it that 
 they ought to follow its analogy. The investigation of the 
 likeness or unHkeness of the facts of different cases for this 
 purpose is often a matter of great difficulty and nicety, 
 •tind the power of forming a judgment on such questions 
 can be acquired only by legal training and experience. 
 Thus the framework of case-law consists of the statement 
 -of a great number of sets of facts, together with the legal 
 results which have been decided to follow from them : the 
 .generahties which make it possible to state the law in a 
 connected form are supplied by a process of discussion, 
 linference, and comment carried on partly by the judges 
 themselves in dealing with the cases, partly by private 
 text-writers. The inspection of such a work as Fisher's 
 -Digest, or perusal of the reported judgments in any cur- 
 rent case in the Court of Appeal, will give in a short time, 
 even to a lay reader, a much better notion of the manner 
 in which English case-law is constructed than can be given 
 hj any description. In the result, our Enghsh case-law, 
 or any other system developed in substantially the same 
 manner, has the great advantage of being full and detailed, 
 ■and of preserving the memory of the remedies administered 
 to the practical needs of men's afPairs in a record rich in 
 •experience and fruitful of suggestions. But there is no 
 ..security for completeness, and imperfect security for con- 
 -sistency. While in some departments no possible scrap 
 ■of mint or anise or cummin seems to remain unnoted, in 
 ■others we may still wait for authority to give a certain 
 
vi INTRODUCTION. 
 
 answer on the greater matters of the law; we have de- 
 cisions of the most elaborate minuteness on the construc- 
 tion of documents, and questions of substantive princij)le 
 which are both important and elementary remain in an un- 
 settled condition. And the system of graduated authority, 
 an excellent one as far as it goes, which makes the decision 
 of a Court of Appeal binding on all Courts below it, and 
 the decision of the Court of final appeal binding on all 
 other Courts and on itself,' does not prevent co-ordinate 
 and conflicting decisions from standing side by side for an 
 indefinite time. Case-law, moreover, is intelligible and 
 accessible only to experts, and to them only with an ex- 
 
 ' Even ■when a decision is afiBrmed on appeal by reason only of 
 the House of Lords being equally divided, the decision remains 
 binding on the House of Lords itself in subsequent cases. This 
 happened in the case of B. v. MilKs, 10 01. & P. 534, -which -was 
 afterwards expressly recognized as binding in Beamish v. Beamish, 
 9 H. L. C. 274 (see at p. 338) : see also Bright v. Hutton, 3 H. L. C. 
 at pp. 388, 391 ; Attorney-Oeneral v. Bean and Canons of Windsor, 
 8 H. L. C. 369, 391 ; Lord Blackburn in Houldsworth v. Citij of 
 Olasyow Banlc, 5 App. Ca. 335 ; and Lord Selbome in Caledonian 
 Bailway Co. v. Walker's Trustees, 7 App. Ca. 275. However, even 
 a Court of ultimate appeal may reconsider questions -which the non- 
 appearance of a respondent has formerlj' compelled it to determine 
 ex parte. This -was done by the Judicial Committee in the eccle- 
 siastical appeal of Midsdale v. Clifton, 2 P. D. at pp. 277, 278, 305 
 
 307. It also seems doubtful whether the rule applies to criminal law 
 (but see B. v. O-ltjde, 1868, L. E., 1 C. C. E. 139). And the Supreme 
 Court of the United States does not hold itself bound by its o-wn 
 decisions {The Legal Tender Cases, 12 AVall. 457, 554, 570). But 
 the peculiar functions of that Coui-t in relation to the federal Con- 
 stitution have to be taken into account. It is really a political as- 
 well as a j udicial power. The Court of Appeal in England generally 
 holds itself bound- by the decisions of Courts of equal authority (the 
 Court of Appeal itself as existing since the Judicature Acts, the 
 Court of Appeal in Chancery, or the Exchequer Chamber) ; but it 
 has held itself not bound by the result of a case where the Court, 
 was equally divided : The Vera Cruz (No. 2), 1884, 9 P. Div. 96. 
 The policy of the course taken by the House of Lords in Beamish- 
 T, Beamish seems open to discussion. 
 
INTRODUCTION. vii 
 
 penditure of thouglit and labour often utterly dispro- 
 portionate to the end in view. 
 
 Statute-law, on the other hand, gives general proposi- 
 tions in definite terms, but is seriously deficient in omit- 
 ting to give particular instances, which in our present system 
 are wholly left to be filled ia afterwards by judicial de- 
 cision, so far as occasions may present themselves. Nor is 
 it to be supposed that this want exists only in the peculiar 
 circumstances and habits of English or EngHsh-born Juris- 
 prudence, or is felt only by English lawyers. Such a suppo- 
 sition, if entertained at all, may be corrected by a moderate 
 acquaintance with the lioman commentaries on the Edict, 
 which are partially preserved in the Digest, or stUl better 
 the various modeiai editions and expositions of the French 
 Codes. The closely-packed volumes of the ' Codes An- 
 notes ' present us, in fact, with a French counterpart of 
 Fisher's Digest ; the chief points of contrast being that in 
 the French work the decisions of the Courts and the 
 opinions of text-writers, being of equal importance, are 
 indiscriminately mixed up, and further that, inasmuch as 
 neither decisions nor opinions (however highly esteemed) 
 have any binding authority, and the number of Courts of 
 co-ordinate jurisdiction is far greater than with us, there 
 is apparently no Hmit whatever to the amount of confiict 
 that may arise. So that, whereas on simple questions the 
 law of France is in general easier to be known than the 
 law of England, yet on a complicated question, which for 
 this purpose means any question on which experts may 
 reasonably differ in their way of construing or supplement- 
 ing the Code, the law of France must be, as it appears to 
 me, almost infinitely more difficult to ascertain than the 
 law of England, or, strictly speaking, not capable of being 
 definitely ascertained at all. This state of things, it may 
 be said, is in great measure due to carelessness and omis- 
 
Viii INTBODUGTION. 
 
 sions on the part of the original framers of the Codes, want 
 of subsequent revision, and other causes which the Erench 
 legislators might and ought to have foreseen. And this, 
 indeed, is the case ; nevertheless I think that on a com- 
 parison of the 'Codes Annot^s' with the Anglo-Indian 
 Acts it is impossible to resist the conclusion that if the 
 French Codes, the text being even as it now is, had been 
 accompanied by a moderate number of authoritative illus- 
 trations, an immense amount of discussion and litigation 
 would have been saved. To come back nearer home, one 
 is strongly tempted to consider how great improvements 
 might have been efEected in most of our Acts of Parliament, 
 from the Statute of Frauds downwards, by a judicious use 
 of the Anglo-Indian method. It would have diminished, 
 at any rate, the risk of elaborate enactments almost fresh 
 from the Queen's Printers being pronoimced, when they 
 came to be applied to existing facts, to be explicable on 
 no other hypothesis than that they were intended to puzzle 
 tlie Court of Queen's Bench ; but this is a topic on which 
 it is hardly safe to enlarge, lest one should unadvisedly 
 speak of the wisdom of the Legislature more lightly than 
 beseems an English citizen and servant of the law. This 
 much, however, I may say, that the style peculiar to 
 parliamentary drafting (though now to a great extent 
 abandoned), which contrives mth singular infelicity to be 
 at the same time crabbed and nebulous, may be regarded 
 as the natural fruit of English legal minds working in 
 fetters, scrupulously anxious to cover all the eases which 
 occurred to them, but debarred from distinctly pointing 
 them out ; having a specific meaning, but being forbidden 
 to express it in a specific form. 
 
 The method of the Indian Codes escapes these evils on 
 both hands by combining the virtues of general enactments 
 with those of specific decisions. The illustrations, being 
 
INTRODUCTION. is 
 
 ■of equal authority with the text, serve as a commentary to 
 fix its meaning and as a guide in its practical application. 
 It is, likewise, I think, a point of no small importance that 
 lay this system the function of case-law is distinctly recog- 
 nized, and its results may he from time to time emhodied 
 in the law itself. In the successive revisions which, as 
 Mr. Justice Stephen has pointed out, are indispensahle to 
 teep a Code in efficient working order, not only such 
 ■defects as experience has shown to exist in the text may 
 he amended, but cases decided since the last revision may 
 he given as fresh iLLustrations if they are deemed important 
 and instructive enough; or if, on the other hand, any 
 ■decision has put on the te'xt of the law a construction 
 ■opposed to the inttention of the Legislature, that construc- 
 tion may be expressly negatived in the same form. Here 
 in England the absence of any such provision makes the 
 statute-law' yet more unwieldy and obscure than pure 
 ■case-law, if not actually misleading. Lawyers know, of 
 course, but I doubt -if it is commonly known among lay- 
 men, that the Hevised Statutes do not contain the whole 
 law, nor anything like it, even on those subjects which 
 Parliament has most expressly and, on the face of the 
 Acts, exha-ustively dealt with. The law regulating the 
 form to be observed in the sale of more than ten pounds' 
 worth of goods is to be foimd, apparently, in the 17th 
 section of the Statute of Frauds. But is it really there ? 
 Nothing of the kind; most of it is in the accumulated 
 decisions of two centuries on that section, and if Ave wish 
 to know the present state of things we must go to the 
 text-writers, and thence to the reports to which they refer 
 us. So, even if we take much later instances, the law of 
 ■pubhcans' licences consists not of the Licensing Acts, but 
 ■of the Licensing Acts together with several decisions of 
 the Court of Queen's Bench. The law which determines 
 
X INTBODUGTION. 
 
 the qualifications of voters consists not of tlie Eef orm Acts^ 
 but of the Eeform Acts together with a great number of 
 decisions of the Court of Common Pleas. The Salmon 
 Fishery Acts, of which the first is less than a generation 
 old, are already, in Cromwell's inimitable phrase, an 
 ungodly jumble. If we paid any systematic attention to 
 these matters, we should have a series of annual amending 
 and supplemental Acts to bring the statutes of general 
 pubho importance, and especially those with which laymen 
 have most to do, such as Acts relating to public health, 
 local government, and the like, into accordance with the 
 rfeal state of the law as settled by the cases decided upon 
 them. This, which of itself would be an improvement of 
 exceeding value, might be effected quite apart from any 
 larger scheme of codification or consolidation ; and it 
 might also very well be done, though not so well, without- 
 the Anglo-Indian use of illustrations.^ The complete re- 
 vision of the Eules of Court in 1883 is an example of the 
 sort of work that we need in many other departments. 
 And the quiet acceptance of this work, really nothing less 
 than the re-casting of a code of civil procedure at the hands 
 of a committee of the judges, goes to show that the difficul- 
 ties of delegating legislative power under our parliamentary 
 constitution are perhaps not so great after all as we have 
 been wont to think. 
 
 Although I am strongly of opioion that the Anglo- 
 Indian Codes furnish us in their general method and 
 design with a pattern which we should do Avell to follow, 
 it must not be supposed that I hold them to be perfect in 
 
 ' The plan of tlie New York Commissioners, wliicli was to furnish, 
 the text of the Code with simple references to decided oases, seems 
 to me only apt to perpetuate the inconveniences of existing statute- 
 law. The law would still be contained not in the Code, but in the- 
 Code and many other books. 
 
INTRODUCTION. xi 
 
 execution. They are indeed far better than any other 
 work of the kind that I have seen. . It is hardly needful 
 to mention the French Codes, which do not even aim at 
 exactness of drafting, and are perhaps most fairly to be 
 judged by regarding them as concise Institutes. The 
 Commercial and Penal Codes of Germany, and the more 
 recent Swiss Federal Code of Obhgations, are much nearer 
 to what codes ought to be, and deserve on many accounts 
 to be studied by English lawyers ; still there is to English 
 eyes something unfinished about the workmanship, and in 
 the German Penal Code there is a great deal more of de- 
 liberate vagueness than we could now admit. The Italian 
 Codes are modelled on the French,^ and therefore share 
 their defects, though they have improved on them in 
 details. One serious attempt has been made, elsewhere 
 than in British India, to codify English law : I mean the 
 draft Civil and Penal Codes of the State of New York. 
 These were prepared and published many years ago, and 
 remaia unexecuted projects in their own State, where they 
 have led to a chronic controversy ; they have been sub- 
 stantially adopted in California, but it is stated that the 
 Calif omian Courts " go on much as before, citiag decisions, 
 even from other States, and basing their judgments upon 
 them." The draftsmen of the New York Penal Code had 
 the Indian Penal Code before them ; the framers of the 
 Indian Contract Act, on the other hand, were able to con- 
 sult the draft Civil Code of New York, and made such use 
 of it as they thought desirable, which in my opinion was 
 far too much. In this case no minute comparison is needed 
 to show the great superiority of the Anglo-Indian work. 
 The weakest parts of the Contract Act are those in which 
 the influence of the New York Code is most apparent. 
 For the rest, that Code in its own birthplace has hithertO' 
 
 ^ I believe tMs does not apply to the new Penal Code prepared 
 for the wliole kingdom. 
 
xii INTRODUCTION. 
 
 failed to become law, notwithstanding the persistent efforts 
 of its promoters. And I feel bound to add that special 
 examination of almost any part of the Code does not 
 tend to remove the prejudice thus engendered. It seldom 
 reads like the work either of good lawyers or of good 
 draftsmen. An ingenious American writer, himself (imlike 
 many of the New York school) an advocate of codification, 
 has said of the New York draft that " as a codification of 
 the existing unwritten law it has almost no value, and 
 this mainly because absolutely necessary details, the very 
 matters that make a good code so much to be desired, are 
 .sacrificed to an illusory brevity."' The Indian Codes, 
 then, are the best models yet produced ; at the same time 
 they are by no means faultless. It is easy to see various 
 points in which they are capable of improvement, though 
 it must be remembered that for the purposes of Indian 
 administration labour and ingenuity would not improbably 
 be thrown away in working them up to the refined exact- 
 ness which is an English lawyer's ideal. The defects, 
 however, so far from being inseparable from the method, 
 Are mostly due to a want of thoroughness in carrying it 
 out in particular instances. Thus one finds that statements 
 of the law have been adopted word for word from English 
 reports or text-books which are open to verbal criticism, 
 •or sometimes to more substantial objection ; and it is 
 occasionally difiicult to see whether it was or was not 
 intended to alter existing English law. This last difiiculty 
 may be a practical one even in India (though I under- 
 •stand that in the High Courts there is a rather strong 
 presumption against departing from the English autho- 
 rities), and it would be very necessary to guard against it 
 in any work of the same kind undertaken for England. 
 
 1 Iloury T. Terry, ' The Leading Principles of Anglo-American 
 Law,' PhiladelpMa, 18S4, p. 640. 
 
INTRODUCTION. xiii 
 
 Questions of the like sort have indeed often arisen in this 
 country -when there has been a series of similar statutes 
 dealing with the same or similar topics in the same general 
 manner, but mth Yariations of language. In fine, I look 
 upon the Indian Codes as exhibiting the type of what we 
 should aim at by an example not to be merely copied, but 
 to be followed and improved upon. If we could only 
 determine that this should be done; if Enghsh people 
 were once brought to perceive that this work is of national 
 interest and importance, and its omission discreditable ta 
 our national intelligence, I believe it would be a quite 
 practicable undertaking, and that within no unreasonable 
 compass of time, to make the laws of England, or so much 
 of them as concerns men's common afPairs and duties, as- 
 good in form as they now are in substance, and as con- 
 spicuous an example of order and clearness as they now 
 are of the contrary. 
 
 It is quite possible that exaggerated notions may b& 
 entertained in some quarters of the benefits expected by 
 the advocates of codification, and it is not impossible that 
 some of the small mmiber of persons who think codification 
 worth working for do in fact expect too much from it. 
 People who plead for giving a trial to an unfamiliar 
 remedy are always in some danger of proclaiming their 
 remedy as a panacea, and are pretty sure in any case to 
 be accused of it. I^ow there are evils of hardship, expense,, 
 and uncertainty, which are due to the present form of the- 
 law, and which codification may abate, and has in fact 
 abated in other coimtries even under circumstances of 
 disadvantage. But there are other drawbacks and difii- 
 culties inherent in the very nature of legal aifairs, which, 
 codification certainly cannot remove, although it may 
 possibly mitigate them to some extent. Apart from all 
 questions of form and procedure, the complexity and. 
 
XIV INTRODUCTION. 
 
 novelty of men's dealings will always give rise to a 
 certain number of really difficult cases. And I do not 
 see how these are to he prevented under any system from 
 arising or from being difficult. There are cases, Hke 
 Dalton V. Angus,^ which, if not easy in themselves, have 
 their difficulties vastly exaggerated by the formless con- 
 dition of our authorities. But questions such as had to be 
 decided in Charter v. Charter,^ Sollins v. Fowkr,' or Roiin- 
 son v. MoUett,^ must be hard to deal with even if we had 
 the best of possible codes. The skilled imagination of the 
 draftsman who devises the illustrations may anticipate 
 many future cases, but it cannot be all-exhaustive. There 
 is no magic in the name or form of a code to make the 
 legislator's foresight consummate. A good code, however, 
 would do this : it would enable one to discover with in- 
 finitely less trouble than at present whether a given case 
 were really difficult or not. Our present system has made 
 easy cases difficult by throwing difficulties in the way of 
 this preliminary inquiry. An English layman is, as a 
 rule, helpless before the simplest legal question : he has 
 to go to a lawyer to be told that it is simple. An English 
 lawyer can see at once that some questions are simple ; as 
 to others he can generally make a fair guess, by a sort of 
 trained instinct, whether there is anything serious iu them, 
 but he may have to spend a good deal of time in research 
 before he can be sure even of this. And this kind of 
 trouble and uncertainty, which often gives a factitious 
 importance to matters that are small in themselves, would 
 be vastly diminished, if not altogether removed, by any 
 systematic arrangement of the law. 
 
 ' 6 App. Oa. 740. 
 » L. E. 7 H. L. 364. 
 ^ Ih. 757. 
 ♦ 11. 802. 
 
JNTRODUOTION. xv 
 
 So then, an objector may say, codification is to make 
 ■easy cases easier, and leave the difficult ones as they are ; 
 but is that after all worth doing ? Assuming for argu- 
 ment's sake that the objection may be fairly stated in this 
 form, the reply is that easy cases are beyond comparison 
 the more numerous in practice. The solid business of 
 justice consists in giving effect to plain and settled rights, 
 and the first thing to be secured is that such rights may 
 be readily ascertained and speedily enforced. If this is 
 thoroughly accomplished the doubtful ones will almost 
 iake care of themselves. Men's attention is fixed on the 
 one curious or difficult case — and this is true of the public 
 as well as of lawyers and students — and they forget the 
 ninety and nine which are straightforward, and where no 
 doubt is possible after the facts are ascertained. The 
 consideration here put forward will go far to explain why 
 the French Codes, and codes framed in close imitation of 
 them elsewhere, have notwithstanding all their defects 
 been productive of great benefits in practice. 
 
 At the same time it is not altogether true that difficult 
 ■cases would be left as they are, for a well-planned codifica- 
 tion of any important branch of the law would remove 
 many existing occasions of difficulty. Questions which in 
 framing a code it would be impossible to pass over are 
 Tiow unsettled, either because the point has not distinctly 
 arisen or, which is a commoner and more troublesome case, 
 because it has arisen and has been evaded, thus becoming 
 surrounded with uncertain and more or less conflicting 
 ■dicta. Such questions would have to be dealt with and 
 reduced to certainty one way or another, and a consider- 
 able amount of possible dispute would thus be cut short. 
 To this extent codifying would involve substantive legis- 
 lation ; and for this reason I cannot agree with those who 
 speak of codifying the law just as it stands. When one 
 
xvi INTRODUQTION. 
 
 comes to think what it really means the thing is seen 
 to be impossible. There are parts of the law which^ 
 if codified as they stand, would be the laughing-stock 
 of mankind ; it is only the obscurity of their present 
 form which enables them to exist at all. It seems to- 
 me a distinct advantage to be claimed for codification 
 that it would drag into the Kght a number of petty 
 anomalies and absurdities (and some, perhaps, that ar& 
 not petty), and compel us to get rid of them. Parliament 
 could not stultify itself by passing Acts of which several 
 sections declared the law to be doubtful, while others 
 laid down things merely ludicrous. Consider a few 
 simple instances from the law of contract. How would 
 the rule in PinnePs Case^ look in a code? It would 
 run something like this : " The person entitled to the 
 performance of a contract may . . . accept instead thereof 
 any satisfaction he thinks fit : provided that he cannot 
 accept in satisfaction of any sum of money the payment 
 of any less sum at the same time and place and in the 
 same manner at and in which respectively the original 
 sum was payable." That is, if A. owes B. £100, and B. 
 accepts £75 in money in satisfaction of the whole at the 
 same time and place at which the £100 are payable, A. is 
 not discharged from the remaining £25 ^nthout a release 
 Tinder seal ; but if A. gives and B. accepts a pair of gloves, 
 a canary, or a peppercorn in satisfaction, the whole debt is 
 
 1 5 Co. Eep. 117. This rule, wliicli the House of Lords aflarmed 
 with reluctance in Foaies v. Beer, 1884, 9 App. Oa. 605, is not a 
 case of anomaly, but of the extreme application of a principle in 
 circumstances to which it is not appropriate : it applies the doctrine 
 of consideration to the discharge as well as to the formation of con- 
 tracts without regard to the consequences. It is not strictly fair, 
 therefore, to call it "one of the mysteries of English Common Law" 
 (per Jessel, M.R., 19 Ch. D. 399). 
 
INTRODUGTION. xvii 
 
 discharged : and if the Indian method were adopted some 
 such instances as these would be given as illustrations. 
 Could this possibly stand ? The sale of goods, again, is 
 one of the commonest transactions of Hfe, and default in 
 payment by the buyer is an event by no means unheard of. 
 Tet nobody knows to this day what is the precise extent 
 of an unpaid vendor's rights when he keeps or has re- 
 sumed possession of the goods. Could Parliament be 
 expected simply to put the doubt on record ? Again, the 
 question of contracts made by correspondence could not 
 be satisfactorily disposed of without an exercise of real 
 legislative power. It would be only too easy to multiply 
 examples. Any one who has had much to do with English 
 law can probably call to miiid some such curiosities in the 
 subjects with which he is most familiar : in our crimiaal 
 law there are several, mostly of statutory creation, which 
 are truly amazing. An authentic codification, therefore, 
 woidd involve amendment; and if a codifying Commis- 
 sion were appointed, it would be necessary to give power 
 to the Commissioners to suggest such changes as they 
 should think indispensable. Ample opportunities should 
 of course be given for the public explanation and dis- 
 cussion of proposed amendments, say, before a select 
 committee: after which they might, if further security 
 were thought desirable, be specially submitted to Parlia- 
 ment, and the Commissioners might be directed by pro- 
 visional and temporary Acts to embody them in the Code. 
 The draft Crimiaal Code prepared by Mr. Justice Stephen, 
 and revised by a judicial Commission, has not yet made 
 sufficient progress before Parliament to throw much light 
 on the best way of working out these details. It is past 
 reasonable doubt, however, that the difficulties are matter 
 of detail and can be overcome. It is not material that is 
 wanting, or the means of criticism, or competent workers, 
 p. i 
 
xviii INTRODUCTION. 
 
 All these are at hand. The things needful are the will 
 to resolve on the undertaking and two or three guiding 
 minds to organize its execution. Meanwhile statements 
 of the law just as it is in a codified form may he good 
 not only for present use, but to call distinct attention to 
 the points where amendment is needed. 
 
 Another aspect of codification which deserves to be 
 specially considered is its probable effect on text-books. 
 I do not see any reason for thinking that it would make 
 them superfluous ; and I doubt L£ it would greatly diminish 
 their extent. So far as one can guess from Contiuental 
 and Anglo-Indian analogy, and from the one English 
 example of Judge Chalmers' Digest of the Law of BOls 
 of Exchange, they would tend to assume the shape of 
 commentaries on the Codes, or on considerable portions of 
 them, and there vould be fewer detached books on special 
 subjects. This, it appears to me, would be a distinct gain 
 to both writers and readers, for nothing is more trouble- 
 some to a lawyer, whether in reading or in writing, than 
 the manner, at once wasteful and fragmentary, in which 
 the field of legal study is covered by existing books. We 
 have a mmiber of treatises overlapping one another in aU 
 directions, and yet letting many things entirely or almost 
 entirely fall through : so that a book like Williams' 
 ' Notes to Saunders' Reports,' which is a collection of 
 references and discussions on all sorts of topics strung 
 together without even the pretence of arrangement, fulfils 
 at present an important function, inasmuch as there is 
 always some chance of finding things in it which other 
 books omit. Not abolition, but transformation of text- 
 books would be the result of a code. There would stiU 
 be plenty of room for exposition, and some, I doubt not, 
 for discussion. A good deal of the space which is now 
 perforce devoted to a laborious and often barren collection 
 
INTRODUCTION. xix 
 
 ■of authorities would be left free for rational explanation, 
 and especially — ^though this hope may seem too sanguine — 
 for a comparative and historical treatment which might be 
 •a powerful instrument of training in exact thought, and 
 might raise the study of the law to something Kke its 
 former rant as part of a liberal education. We might 
 •even cease to regard " jiirisprudence " as a kiad of 
 mysteiiovis knowledge so hopelessly separated from the 
 law of England as to require a distinct course of reading. 
 Hereia I do not wish for a moment to underrate the 
 merits and utOity of legal text-books of the present type ; 
 for which, having regard to existing conditions, one cannot 
 l)e too thankful. In fact, it is only the text-writers who 
 make our present state at all tolerable. So much is this 
 the case that, if reports go on multiplying unchecked, the 
 leading text-books will come to be freely cited as authority ; 
 there are already signs of a tendency that way, and it 
 may be seen in a much more developed stage in the 
 United States. Thus we may find ourselves at no very 
 distant time drifting into a condition much like that of 
 •ancient Eoman^ and modern Continental jurisprudence, 
 and driven to seek authority in a mass of mixed decisions 
 •and opinions of uncertain relative value. It would then 
 remain to be seen whether even the most inflexible sup- 
 j)orters of the beautiful flexibility of uncodified law might 
 not choose codification as the lesser of two evils. 
 
 From this it would be natural to turn to the subject of 
 reporting, which is one that needs to be considered in. 
 connexion with the working of a code, and has in. fact 
 been xmder consideration in India. But the questions 
 involved are too extensive to be dealt with here. There 
 is a general feeling, I believe, that the present system is 
 
 '^ I.e. before Justinian. 
 62 
 
XX INTRODUCTION. 
 
 not satisfactory, though some improvement is apparent of 
 late years by reason of the increased authority and pre- 
 dominance of the Court of Appeal. I may refer to Mr. 
 Justice Stephen's ' Minute on the Administration of 
 Justice in British India' (published by authority, Cal- 
 cutta, 1872, pp. 39 — 46) for some reflections on this matter 
 which may be no less pertiaent for England. 
 
 The general topic of codification can hardly be dismissed 
 "without noticing one or two current delusions about it, 
 for so I fear they must be called. One is that the French 
 Codes will serve as a model for imitation, or as a repre- 
 sentative case for criticism. Of this no more need be 
 said than I have already had occasion to say in the fore- 
 going pages. The principal lesson to be learnt from the 
 French Codes is that even a very defective code is far 
 better than none. Another belief which leads to a good 
 deal of confusion, though it is of less practical importance, 
 is that the work effected by Justinian's commissioners on 
 the vast and unmanageable mass of Roman law was a codi- 
 fication in the modern sense. This belief is so strangely 
 wide of the facts that one feels almost bound to produce 
 specific evidence that it exists. It may be met ■s^ith in 
 several places where one is surprised to find it. Some 
 time ago a reviewer whose general intentions were very 
 just and laudable, but whose illustrations from Roman law 
 showed more zeal than knowledge, observed, in the course 
 of a paper advocating a Ministry of Justice, that Tribonian 
 himself could not codify English law as it now stands. There 
 is certainly no reason to think that he cotdd, seeing that 
 he did not in fact codify Roman law ; nor can we suppose 
 that the idea of codification, as we now understand it, was 
 ever present to his mind. Again, the Introduction to the 
 New York Civil Code speaks of the Code of Justinian 
 (meaning presumably the whole Corpus Juris) as one of' 
 
INTRODUCTION. xxi 
 
 the greatest achievements of human genitis. Surely the 
 Commissioners must have imconsciously attributed the 
 genius of the great Roman lawyers whose work is em- 
 bodied in the Digest to the compilers who so handled that 
 work as to show themselves in many places incapable of 
 understanding it. The real nature of Justinian's re- 
 arrangement of the law may be shown by an imaginary 
 parallel. Let us suppose a Eoyal Commission charged to 
 prepare an edition of Blaokstone adapted to the existing 
 state of the law, a Digest similar in plan to Fisher's (which 
 for this purpose we may assume not to exist), but consisting 
 wholly or chiefly of extracts taken bodily from the Re- 
 ports, and not including modem Acts of Parliament, and 
 a separate Digest arranged in the same manner and con- 
 taining the substance of the Revised Statutes. The revised 
 Blackstone would roughly correspond to the Institutes, 
 which are a modernized edition of Gaius; and in like 
 manner the Digest of case-law would correspond to the 
 Pandects or Digest of Justinian, which are a compilation 
 from the more or less authoritative treatises that practi- 
 cally held a place analogous to that of reports in English 
 jurisprudence, and the Digest of Statutes would corre- 
 spond to Justinian's Code, which is a compilation of im- 
 perial rescripts and constitutions. The parallel holds, of 
 course, only in outline ; Grains is far superior to Black- 
 stone as a systematic legal writer, while on the other hand 
 the arrangement of Fisher's Digest is beyond comparison 
 more orderly and convenient than that of the Pandects or 
 the Code. But the general resemblance is suificient for 
 the purpose of illustration. Now let us further suppose 
 that these three works, when complete, are annexed by 
 way of schedule or reference to a Grovemment Bill with 
 -an exceedingly pompous preamble, which in due course 
 becomes an Act and confers on all of them the force of 
 
xxu INTBODUGTION. 
 
 law. "We must add that our imaginary Act would (still 
 with much barbarous pomp of language) absolutely forbid 
 not only the citation of any earlier reports or text-books, 
 but the publication of any commentary whatever on the 
 new collection. It should be hardly needful to point out 
 that such a proceeding would not be codification ; and it 
 is hardly possible to imagine either that anything of the- 
 kind should at this day be proposed, or that, if it were 
 proposed, all persons having a moderate' acquaintance with 
 law and legislation would not with one accord denounce it 
 as too crude a project to be seriously entertained. 
 
 The foregoing remarks may be considered to apply to 
 the setting forth of the law by private writers, in so far as 
 advantages similar to those which are claimed for authentic 
 codification would be attaiaable, if the claim is well 
 founded, by the adoption of the same form in text-books.. 
 There must naturally always be a great gulf between an 
 authentic text and a private exposition; the latter can 
 only suggest with more or less diffidence what the authentic 
 text, if there were one, woidd be like. But the resulting 
 qualifications, grave as they are, can easily be supplied, 
 and I forbear to dwell on them. I -noU only call atten- 
 tion to Mr. Justice Stephen's remark ^ that, whatever may 
 be thought of the use of illustrations in a code, it is dbvi- 
 ously desirable in an experimental application of the 
 method by private hands, inasmuch as the reported cases, 
 given as illustrations are, iE correctly stated by the writer, 
 authoiitative, whereas the general propositions of the text 
 are not. 
 
 It remains^to say something of the reasons and principles, 
 which have guided me in this particular work. The law 
 of Partnership is in many ways a specially convenient 
 
 ' Introduction to ' Digest of tlie Law of Evidence.' 
 
INTRODUCTION. xxiii 
 
 subject for the treatment here adopted. It has in common 
 with the law of Evidence the qualities of being of modem 
 growth, homogeneous, and for the most part well settled. 
 It is remarkably free from anomalies and technicalities, 
 and has been singularly fortunate in the rational character 
 of its development, by which it has earned an almost com- 
 plete freedom from statutory interference. It has been 
 otherwise with the law of Companies, which I have left 
 apart as now depending almost entirely on statute law, 
 and being in great measure already codified in the Com- 
 panies Clauses Consolidation Act and the Companies Acts 
 (of which last, by the way, several sections have long been 
 in need of re-draftiag), besides other enactments affecting 
 only special classes of companies. It would be possible to 
 prepare a consolidated edition of the Companies Acts, 
 showing the effect of the decisions upon them by suggested 
 modifications in the text ; but the task would be a very 
 laborious one, and almost certainly not worth the labour. 
 The law of Partnership proper, on the other hand, lies- 
 within a moderate and manageable compass. This asser- 
 tion may seem strange to the reader accustomed to Lord 
 Justice Lindley's two goodly volumes. But it will be 
 found that, after allowing for the parts of those volumes 
 given to the law of Companies, and for those which deal 
 with topics bearing on the law of Partnership in their 
 special applications, but not forming part of it, such as- 
 Agency, the remainder would be a book of no such great 
 size. This brings me to another reason for choosing the 
 form of a Digest which presented itself to me with great 
 force : I mean the extreme difficulty of writing a book in 
 the ordinary form on the law of Partnership, which 
 should in substance be otherwise than an abridgment of 
 Lord Justice Lindley's. As it is, his work has throughout 
 been the guide and foundation of my own. Without it 
 
xxiv INTRODUCTION. 
 
 the toil would have been many times multiplied and the 
 harvest precarious. I have everywhere given references to 
 Lord Justice Lindley's book, not merely by way of ac- 
 knowledgment (a tribute which is at best imperfect), but 
 also for other reasons. First, it is a necessary part of the 
 plan of this work to give only a selection of authorities ; 
 and it seems well that a reader desiring fuller information 
 should be enabled to put himself, with as small loss of 
 time as may be, in the way of knowing everything that is 
 to be known. Thus I have some hope that this book, in 
 addition to whatever other uses it may have, may be of 
 some service in acting (to speak with astronomers) as a 
 finder to Lord Justice Lindley's larger and more powerful 
 instrument. Moreover, I have in several places deliber- 
 ately cited his book as my sole and sufficient authority. 
 There are in most branches of the law, and especially in 
 this, clear elementary propositions, never doubted and 
 constantly acted upon, for which it is nevertheless hard to 
 find any reported case exactly in point. There axe others, 
 again, for which no definite authority can be produced 
 save a Nisi Prius case from Campbell or Peake. Now it 
 does seem to me that the twice and thrice revised opinion 
 of a living Judge, though technically not authority, is 
 substantially worth at least as much as a summing up 
 delivered at "Westminster or GuildhaR -^ith little or no 
 consideration, and at a time when the subject was in its 
 infancy ; and I have ventured to frame my references on 
 this assumption. Where tliere is nothing to be gained 
 by looking out a case in the book at large, it is surely 
 desirable, if possible, to avoid citing it at aU. 
 
 I have also made considerable use of the Indian Contract 
 Act, the last chapter of which treats of Partnership, and 
 has adopted, as it appears to me, all that is of solid value 
 in the corresponding title of the New York Civil Code. 
 
INTROBTJOTION. xxv 
 
 This chapter, however, is by no means so full as other 
 'parts of the Act, and is somewhat unequal ia execution ; 
 and, owiag to I know not what accident in the framing of 
 it by the Indian Law Commission, there is an almost entire 
 ^absence of illustrations. Any one who cares to make the 
 •comparison will see that I have thought it needful to go 
 much more into detail. It will be understood that I am 
 far from assuming to criticize the Indian Act on its own 
 ground, since it is an open question whether the kind of 
 completeness which Englishmen require iu a statement 
 of English law be necessary or desirable for Anglo-Indian 
 purposes. 
 
 Following Mr. Justice Stephen's example, I have aimed 
 ^t fixing the limits of the subject-matter so as to exclude 
 ■all merely collateral topics. Thus the capacity of persons 
 to become partners is not different from their general 
 ■capacity for contractiug ; that question, accordingly, is left 
 aside as belonging to the general law of contract. In the 
 ■same way the manner in which the existence of a partner- 
 ship may be proved belongs to the law and practice of evi- 
 dence ; nor has it been expressly stated that no particular 
 form is required for the contract of partnership, as the 
 law of contract in its modem shape assumes throughout 
 that no special form is needful where none is expressly 
 prescribed. So, agaia, the general principles of agency 
 are not entered upon, though they are the foundation of 
 the special rules which determine a partner's authority as 
 •agent of the firm. Eor the like reason nothing is said of 
 fraud as a cause for rescinding the contract of partnership, 
 the liability to rescission on this ground being one to which 
 it is subject in common with all other contracts, and which 
 m this application presents no peculiar features. In the 
 third part of this Digest, entitled 'Of Procedure and 
 Admiaistration,' I have relaxed these limits on grounds 
 
xxvi INTRODUCTION. 
 
 of practical convenience, but have endeavoured not to 
 lose sight of them, and have abstained, for instance, from 
 stating rules which are simply part of the general law of 
 Bankruptcy. The whole of the third part, however, may 
 be regarded as supplemental and provisional. Elsewhere 
 many readers will probably think I have included too 
 Kttle; my own impression, speaking with regard to the 
 form and method here chosen, is that I have sometimes 
 included too much. The full, discursive, exhauBtive treat- 
 ment of the subject, which is amply provided in the 
 standard work already spoken of, would be out of place in 
 a Digest. I have thought it desirable, however, to add a 
 certain amount of commentary ; and it seemed better on 
 the whole to insert this matter in order as it was called 
 for than to relegate it to an appendix. The illustrations 
 are taken from decided cases, with only one or two excep- 
 tions, and those of so simple a kind as to be obviously free 
 from risk. 
 
 Lastly, I would express a hope which is bolder, perhaps^ 
 than any I have yet put forward. Mr. Justice Stephen 
 has said, and as I believe with perfect truth, that " the 
 only thing which prevents English people from seeing that 
 law is reaUy one of the most interesting and instructive 
 studies in the world is that English lawyers have thrown 
 it into a shape which can only be described as studiously 
 repulsive." And this is not mere theoretical opinion ; for,, 
 as he fui'ther tells us, Indian experience has actually shown 
 " that when law is divested of all technicalities, stated in 
 simple and natural language, and so ai-ranged as to show 
 the natui-al relation of the different parts of the subject, it 
 becomes not merely intelligible but deeply interesting to 
 educated men practically conversant with the subject- 
 matter to which it relates." The subject-matter of the 
 present work is one in which many important interests are 
 
INTRODUCTION. xxvii 
 
 inyolved, and -with which many educated men are practi- 
 cally conversant. I have endeavoured, so far as possible, 
 to state the law in simple and natural language, to di- 
 vest it of technicality, and to exhibit the different parts 
 of the subject in their natural relation. It is, I trust, 
 not irrational to hope that a work of this kind may be 
 sufficiently intelligible, and to some extent interesting 
 and useful, to men of business who axe not lawyers. 
 Bentham's saying notwithstanduig,i I do not think it 
 possible iu a land of ancient and complex civilization to 
 make every man his own lawyer; but I do believe it 
 possible to put within every man's reach, not iadeed a 
 full knowledge, but a knowledge clear, sound, and exact, 
 as far as it goes, of the laws he lives under and has to do 
 with in his own daily business. If within its own limited 
 sphere the present attempt fails to contribute anything 
 towards that end, I am persuaded that the failure is due 
 not to an aim beyond reason in the intention, but to my 
 own shortcomings in the performance. 
 
 Since the last foregoing paragraph was first written and 
 published (and I purposely let it stand in its original 
 form) much has happened to show that codification of 
 English law, and in some cases codification by private 
 enterprise, is both possible and practicable. How far it 
 
 1 " Every man his own lawyer ! — Behold in this the point to aim 
 at." — ^Papers on Codification, No. viii, Letter 4. Bentham's view 
 is really the negation of law as a science. In our own time Ihering 
 has pointed out, much more philosophically, that law has indeed 
 to justify itself by common sense in the last resort, but untrained 
 and inexperienced common sense cannot therefore take the place of 
 law. Common sense wUl not even make a man his own ploughman 
 or his own shoemaker. 
 
xxviii INTRODUCTION. 
 
 shall be accomplislied, and how soon, depends partly on 
 the leisure and temper of the House of Commons, partly 
 on the desires and interest of the puhlic. I am hound to 
 say that the indifference of the public at large to the whole 
 matter does not seem to have sensibly diminished of late 
 years. On the other hand, the Bills of Exchange Act (in 
 the full title of which the word " codify " is for the first 
 time used by Parliament) shows that codification of a 
 particular branch of law can be carried through when a 
 strong body of competent and interested persons have 
 agreed to demand it. Somewhat has been done, too 
 (though as yet with no definite result), as regards the Law 
 of Partnership itself. A fuller account of this attempt is 
 given in the Appendix. There has been no legislation to 
 take account of since the date of the last edition ; but there 
 have been decisions of considerable importance. Some of 
 them suggest the reflection that the consequences of 
 Kendall v. Hamilton (see p. 31 of the present edition) are 
 by no means exhausted. 
 
 F. P. 
 
 J 3, Old SauAEE, Lincoln's Inn, 
 December, 1887. 
 
( xxix ) 
 
 TABLE OF CASES. 
 
 PAOE 
 
 Adam v. Townend . 127 
 
 Adamson, Sx parte . 141 
 
 Agace, Ex parte . . 50 
 
 Airey i;. Borham . 73,111 
 
 Akliurst V. Jackson . 110 
 
 Alder v. Fouracre . . 82 
 
 Alderson v. Pope . . 48 
 
 AUen V. L. & S. W. E. Co. 58 
 
 Anonymous (2 K. & J.441) 90, 91 
 
 ArundeU v. Bell . . 108 
 
 Ashworth v. Munn . . 67 
 
 V. Outram . 86 
 
 Astle V. Wriglit . . Ill 
 
 Atkins, Ex parte . . 149 
 
 Atkinson v. Mackreth. . 52 
 
 Att.-Gren. V. Hubbuck . 67 
 
 Atwood V. Maude 
 Austen v. Boys 
 
 92, 111, 112, 
 
 113 
 
 . 108 
 
 B. 
 
 Backhouse v. Hall . . 24, 25 
 Badeley v. Consolidated 
 
 Bank . . . . 14, 32 
 Baird's Case ... 36 
 Bank of Australasia v. 
 
 Breillat 39,40,42,45,46 
 
 of England Case . 65 
 
 Banks v. Gibson . . 109 
 Barber, Ex parte . . 62 
 Barfield v. Lougbborough 97 
 Baring's Case ... 55 
 Bate, Ex parte . . 156 
 Baxter i;. West . . 92 
 Bayley v. Manchester, &c. 
 
 Eailway Co. . . 57 
 
 Beckett v. Eamsdale 31, 154 
 
 PAGE. 
 
 Bentley v. Craven . . 82 
 Bignold V. Waterhouse . 47 
 BUborougb v. Holmes . 34 
 Binney v. Mutrie . . 123 
 Bisbop v. Countess of 
 
 Jersey ... 55 
 
 Blain, Ex parte . . 80 
 Blair v. Bromley . . 53, 54 
 Blisset V. Daniel . . 73, 76 
 Bluck V. Capstick . . 113 
 Bolingbroke v. Swindon 
 
 Local Board . . 58 
 Bonbonua, Ex parte . 42' 
 Bond V. Gibson . . 42 
 Brettel-v. WiUiams. . 43 
 Brice's Case ... 94 
 Brown V. De Tastet . 75, 115, 121 
 
 -V. Leonard 
 
 Buckley v. Barber . 
 Bucknal v. Eoiston . 
 Bullen n. Sharp 
 Bullock V. Crockett . 
 Burdon v. Barkus . 
 Burgess v. Burgess . 
 Burmester v. Norris 
 Bury V. Allen . 
 Butchart v. Dresser 
 Butcher, Ex parte . 
 
 64 
 
 49 
 
 98 
 
 104 
 
 T 
 
 111 
 
 70,71 
 
 19- 
 
 42 
 
 111 
 
 96, 98 
 
 136 
 
 Oambefort & Co. v. Chap- 
 
 
 man 
 
 32: 
 
 Campbell v. MuUett 
 
 67 
 
 Carr v. L. & N. W. E. Co 
 
 27 
 
 Carter v. Whalley . 
 
 29,94 
 
 Castell, Ex parte 
 
 143. 
 
 Chandler, Ex parte . 
 
 32, 
 
TABLE OF CASES. 
 
 PAGE 
 
 Oheesman v. Price . . 92 
 Childs, iJe ... 86 
 Chippendale, Ex parte 
 (German Mining Com- 
 pany's Case) . . YO, 71 
 Churton i». Douglas . 104,105, 
 106, 107, 108 
 
 Clark V. CuUen 
 
 V. Leach 
 
 Clayton's Case 
 Cleather v. Twisden 
 Clegg V. Edmondson 
 Clements v. Hall 
 ■ V. Norris . 
 
 33 
 
 Collinge, Ex parte . 
 Const V. Harris 61, 62 
 Cook, Ex parte 
 
 V. Collingridge 
 
 Cookeon ■;;. Cookson 
 Coomer v. Bromley 
 Cooper V. Prichard . 
 Cope V. Evans 
 Couldery v. Bartrum 
 Coventry v. Barclay 
 Cox V. Hickman . 7 
 
 V. Willoughby 
 
 Craven v. Edmondson 
 Crawshay v. Collins 
 
 V. Maiile 5, 64, 78, 85 
 
 Croft V. Pike . . .100 
 
 129 
 79 
 34, 94 
 55, 56 
 81 
 82 
 74 
 
 147 
 73, 74 
 
 148 
 
 106 
 78 
 56 
 55 
 22 
 
 155 
 
 62 
 
 30,48 
 
 78 
 
 97 
 
 115 
 
 D. 
 
 Darby v. Darby . 66, 102 
 Darlington, &c. Banking 
 
 Go., Ex parte . 36,40,45 
 Davison, Be . . . 32 
 Dawson v. Beeson . . 105 
 Dean v. MacDowell . 84 
 Dear, Ex parte . 136, 137 
 Delhasse, Ex parte . . 11 
 Devaynes w. Noble 33,54,55,94 
 Diokin, Ex parte . 132, 157 
 Dickinson v. Valpy. . 41 
 Du Boulay v. Du Boulay 20, 21 
 Dundonald (Earl of) c. 
 
 Masterman . . . 57 
 Dunne v. English . . 83 
 Dutton V. Morrison . 138 
 
 E. 
 
 Ebbs V. Boulnois . 
 Edmonds, Ex parte. 
 
 V. Eobinson. 
 
 England v. Curling 
 Esposito V. Bowden. 
 Essel V. Hayward . 
 Essex V. Essex 
 Eyre, Ex parte 
 
 F. 
 
 PAOE 
 131 
 
 147 
 114 
 5, 61 
 89 
 90 
 78 
 53 
 
 Earquhar v. Hadden 
 
 68 
 
 Fawcett v. 'Wliitehouse 
 
 82 
 
 Featherstonhaugh v. Fen 
 
 
 wick . 
 
 . 79, 80 
 
 Flockton V. Bmming 
 
 . 119 
 
 Fox V. Clifton . 
 
 . 27, 30 
 
 V. Hanbury . 
 
 96, 101 
 
 Eraser v. Kershaw . 
 
 96 
 
 Freeland v. Stansfeld 
 
 . Ill 
 
 French v. Styring . 
 
 2 
 
 G. 
 
 Gallway (Lord) v. Mathew 48 
 
 Garland v. Jacomb . . 47 
 German Mining Com- 
 pany's Case . . 70, 71 
 
 Gillett V. Thornton . . 78 
 
 Ginesi v. Cooper & Co. . 105 
 
 Glassington v. Thwaites . 83 
 
 Gordon, Ex parte . . 147 
 
 Grain's Case ... 35 
 
 Gray v. Chiswell . . 138 
 
 Grazebrook, J-'x parte . 148 
 
 Greatrex v. Greatrex . 76 
 
 Green r. Beesley . . i 
 
 Griswold o. Waddington. 89 
 
 Hall V. Barrows . . 106 
 
 Hamil v. Stokes . . no 
 
 Hammond, Ex parte . 159 
 
 Harman v. Johnson . 54 
 Harris, Ex parte 142, 143, 144, 
 
 „ . 150, 151 
 
 Harrison t;. Jackson . 43 
 
TABLE OF CASES. 
 
 PAGB 
 
 Sarrison v. Tennant . 90, 92 
 Hay's Case ... 83 
 Hayman, Ex parte . 28, 145 
 
 Heath v. Sansom . . 29, 96 
 Heilbut V. Nevill . . 45 
 Helmore v. Smith . . 86, 87 
 Hendriks v. Montagu . 22 
 Hendry v. Turner . . 95 
 Hinds, Ex parte . 64, 144, 152 
 Hodgson, Be . . 31, 154 
 HoUoway v. Holloway . 20 
 Holme V. Hammond 8, 12, 37 
 Honey, Ex parte . 157, 158 
 Hort's Case ... 35 
 Houlton's Case . . 94 
 
 Ide, Exparte . . 128, 129 
 
 -Jackson v. Litchfield . 127 
 Jennings v. Baddeley . 91 
 
 V. Hammond . 17 
 
 Jones V. Foxall . 120, 122 
 
 V. Lloyd . . .86, 91 
 
 - — • V. Noy ... 90 
 
 K. 
 
 Kelly V. Hutton . . 75 
 
 Kemptner, Exparte . 68 
 
 Kendal v. Wood . . 46 
 
 Kendall v. Hamilton . 31 
 
 Kewney v. Attrill . . 88 
 
 KUshaw V. Jukes . . 8 
 
 King V. Chuck . . 79 
 
 Knox V. Gye . . 82, 122 
 
 L. 
 
 Labouchere v. Dawson 105, 107 
 Lacey v. HiU, 51, 138, 142, 144, 
 147, 150, 152, 153 
 Lacy V. Woolcott . . 97 
 Langmead's Trusts, Me, 101, 103 
 Lawson v. Bank of London 22 
 Leaf V. Coles ... 90 
 Leary v. Shout . . 92 
 
 FAas 
 Lee i'. Haley ... 21 
 
 ■V.Page . . .112 
 
 Leggott V. Barrett . . 105 
 Levieson v. Lane . . 46 
 Levy V. Walker 19, 104, 105 
 Lewis ?;. Eeilly . 47,97,98 
 Limpus V. General Omni- 
 bus Co. ... 57 
 Llewell3Ti v. Rutherford. 107 
 Lodge and Fendal, Ex 
 
 parte . 144, 150 
 
 V. Prichard, 135, 137, 138 
 
 London Financial Asso- 
 ciation V. Kelk . . 2 
 Lyon V. Haynes . . 95 
 
 V. Knowles . . 2 
 
 V. Tweddell . 93, 114 
 
 M. 
 
 M'Kenna, Exparte (Bank 
 
 of England Case) . 65 
 Mackenzie, Exparte . 130 
 Manchester and County 
 
 Bank, Exparte . . 157 
 Marsh v. Keating . . 53, 56 
 Martyn v. Gray . . 27, 28 
 Massam-y.Thorley'sCattle 
 
 Pood Co. ... 20 
 Maude, Exparte . . 148 
 Maughan v. Sharpe . 19 
 Mellersh v. Keen . . 86 
 Merchant Banking Co. of 
 London v. Merchants' 
 Joint Stock Bank . 19 
 Metcalf V. Bruin . . 25 
 Mills, Ex parte . . 13, 14 
 Mollwo, March & Co. v. 
 
 Court of Wards . 4, 6, 26 
 Moiley, Ex parte . 136,137 
 Munster v. Cox . 126, 129 
 
 1;. Eailton . 126 
 
 114 
 
 Mycock V. Beatson . 
 
 N. 
 
 Nanson v. Gordon . . 147 
 
 Natusch V. Irving . . 74 
 Neilson v. Mossend L:on 
 
 Co 80 
 
 Nerot V. Burnand . . 63 
 
TABLE OF CASES. 
 
 Nottingham, Ex parte 
 Nowell V. Nowell . 
 
 0. 
 
 Oakford v. European and 
 American Steam Ship- 
 ping Co. 
 
 Owen, Ex parte 
 
 PAOE 
 
 145 
 
 124 
 
 33 
 
 Padstow Assurance Asso- 
 ciation 
 Page?;. Oowasjee Eduljee 
 Parker, Ee . . . 
 V. McKenna 
 
 Parsons v. Hayward 
 Pawsey v. Armstrong 
 Payne v. Hornby . 
 Pearson v. Pearson . 
 Pease v. Hewitt 
 Philps, Ex parte 
 Pickering v. Stephenson 
 
 17 
 
 102 
 
 155 
 
 83 
 
 . 78, 79 
 
 5 
 
 103, 104 
 
 . 105 
 
 . Ill 
 
 . 131 
 
 74 
 
 Plumer v. Gregory . 52, 53, 54 
 Plummer, Be . . . 155 
 Pooley V. Driver . 3, 9, 10 
 Potter V. Jackson . . 123 
 Poultoni>.L.&S.W.E.Co. 58 
 
 Quarman v. Burnett . 29 
 
 E. 
 
 Bead v. Bailey, 139, 142, 144, 
 160, 151, 152, 154 
 Eeade v. Bentley . . S 
 
 Eidgway v. Clare . . 135 
 Eobinson, Ex parte. . 93, 95 
 
 V. Anderson . 69 
 
 V. Ashton . 65 
 
 Eolfe V. Flower 34, 35, 137, 155 
 Eoss V. Parkyns . . 8 
 
 Eowe V. Wood . . 72 
 Eowland & Crankshaw, 
 
 Re .... 2% 
 Euffln, Ex parte . . 68 
 Eussell V. Eussell . . 77 
 
 S. 
 
 PAGE 
 
 St. Aubyn v. Smart . 53 
 
 Salting, Ex parte . . 141 
 
 Sargood's Claim . . 71 
 
 Scarf V. Jardine . . 34 
 
 Scott V. Eayment . . 5 
 
 V. Eowland . . 109 
 
 Seixo V. Provezende . 22 
 
 Shaw V. Benson . . 17 
 
 Sheen, Ex parte . . 145- 
 
 Sheil, Ex parte . . 14 
 
 Sheppard, Ex parte . 155- 
 
 ShirreiS v. Wilks . . 47 
 
 SiddaU, iJe ... 17 
 Sillitoe, Ex parte . 146, 148- 
 
 Simpson, Re . . . 136 
 
 V. Chapman 115, 121 
 
 Sims V. Brutton . . 55 
 Singer Manufacturing Co , 
 
 V. Loog 22: 
 
 V. Wilson . 22 
 
 Skipp V. Harwood . . 101 
 Sleech's Case . . .33, 94 
 
 Smith I'. Anderson . . 17 
 
 V. Everett . . 108 
 
 V. Smith . . 65 
 
 V. Winter . . 96, 97 
 
 Societe Generale de Paris 
 
 )'. Geen . . . 155 
 South Wales Atlantic 
 
 Steamship Co., iJe . 16 
 
 Stables v. Eley . . 29- 
 Stead V. Salt . . 43, 44, 50' 
 
 Steel V. Lester . . 2 
 
 Steiglitz i'. EggLnton . 43: 
 
 Steward ;•. Blakeway . 5, 64 
 Stocken v. Dawson 101, lOa 
 
 Stone, Ex parte . . 159 
 
 , Re. . . . 14 
 
 Stroud . . Gwyer . . 120 
 
 Swire v. Eedman . . 33 
 
 Syers r. Syers . . 9, 10' 
 
 Taylor, E.v parte . 
 
 13. 
 
 Tennant, Ex parte . 
 
 7 
 
 Thomason i\ Erere . 
 
 97 
 
 Topping, E.r parte . 
 
 147 
 
 Travis v. Milne 
 
 121 
 
 Troughton v. Hunter 
 
 94 
 
 Tuff, Re . 
 
 145. 
 
TABLE OF CASES. 
 
 Turner v. Major 
 Turney, Ex parte 
 
 V. 
 
 PAOE 
 
 109, 116 
 . 156 
 
 Venables v. Wood . . 8, 9 
 
 Vernon v. Hallam . 105, 107 
 
 Vyse V. Foster, 115, 117, 118, 
 
 120, 121, 122 
 
 W. 
 
 "Waddell's Contract, Be 
 Wakeman, Be. 
 Walker v. Hirsch 
 
 V. Mottram 
 
 V. Eooke 
 
 131 
 149 
 5 
 105 
 129 
 66 
 64 
 92 
 
 Walton V. Butler 
 Waterer v. Waterer 
 Watney v. Wells 
 Wedderbum v. Wedder- 
 
 bum . . 63, 107, 116 
 
 West V. Skip . . 101, 104 
 
 PAGE 
 
 Westcott, Ex parte . . 149 
 
 Whetham v. Davey . 87 
 
 Whinoup V. Hughes . 110 
 
 Wliitoombe v. Converse . 124 
 
 Whit-well V. Arthur . 9()' 
 
 Wiokham v. Wiokham . 50 
 Willetti;. Blanford..ll5, 117, 118 
 
 Williamson, Ex parte . 71 
 
 V. Barbour . 51 
 
 Wilson V. Johnstone 111, 112 
 
 V. Whitehead . J> 
 
 Wood V. Woad . . 76 
 
 Woodbridge v. Swann . 96 
 Worcester Corn Exchange 
 
 Co 72 
 
 Yates V. 
 
 Dalton 
 Finn 
 
 Yonge, Ex parte 
 Yorkshire Banking Co. v. 
 
 Beatson 
 Young, Ex parte 
 
 40 
 . 115, 116 
 143, 149, 152 
 
 39 
 126 
 
( XXXV ) 
 
 TABLE OF CONTENTS. 
 
 PART I. 
 ®j&e ©ontract of ^artncrsjbtj). 
 
 CHAPTEE I. 
 Who are Partners. 
 
 AET. PAOE 
 
 1. Definition of partnership 1 
 
 Distinction between partnership and common ownership or 
 
 sharing gross returns 4 
 
 2. Sharing profits as evidence of partnership : rule in Cox v. 
 
 Hickman ......... 6- 
 
 3. Act to amend the Law of Partnership, 1865 : person 
 
 advancing money for share of profits . . . . !> 
 
 4. Agent remunerated -by share of profits . . . .11 
 
 5. Widows or children receiving share of profits . . .11 
 
 6. Seller of goodwill receiving share of profits . . .11 
 
 7. Creditor receiving share of profits postponed in case of 
 
 debtor's insolvency 12 
 
 Exclusion of such creditor from competing with others is 
 absolute 13 
 
 8. Number of partners in ordinary partnership . . .14 
 Extraordinary partnerships (companies) . . . .15 
 
 CHAPTEE II. 
 Of the Firm. 
 
 9. What is a firm 18 
 
 10. Use of firm-name 18 
 
 11. Exclusive right of firm to trade name . . . .18 
 
 Use of names in general 19' 
 
 Foreign laws as to firm-names 20 
 
 Trade name and trade mark 21 
 
 The firm not a person in law 23 
 
 Law of Scotland 23- 
 
 c2 
 
xxxvi TABLE OF CONTENTS. 
 
 AUT. . . PAGE 
 
 V2. Continuing guaranty for or to firm not binding after 
 change in firm, unless contrary intention appears 
 (Mercantile La-w Amendment Act, 1856) . . .24 
 Evidence of contrary intention -" 
 
 CHAPTER in. 
 0/ Persons who are liable as Partners. 
 13. Persons liable by holding themselves out as partners 
 What amounts to " holding out " .... 
 The rule applies to administration in bankruptcy 
 But not to bind deceased partner's estate . 
 Liability of retired partners ..... 
 
 26 
 27 
 28 
 28 
 28 
 
 CHAPTER IV. 
 
 Of the Lialility of Partners for Partnership Delta, and the Authority 
 of Partners to hind the Firm. 
 
 14. Liability of partners for debts of firm . . . .30 
 The rule in Kendall v. Hamilton 31 
 
 lo. Liabilities of outgoing and incoming partners . . .32 
 
 Test of liability of now firm 35 
 
 Novation 35 
 
 16. Power of partner to bind the firm ..... 36 
 Exception where there is neither apparent nor real authority 37 
 General limits of partner's authority 37 
 
 IT. Implied authority of partners, and especially of p£u:tners 
 
 in trade 38 
 
 Special instances : negotiable instruments . . .40 
 
 Borrowing money .42 
 
 Sale and pledge . 42 
 
 Purchase 42 
 
 Receipt of payments and releases 43 
 
 Servants .43 
 
 Where authority not implied : deeds . . . . .43 
 
 Guaranties 43 
 
 Submission to aibitration 44 
 
 17a. Limited power of directors in numerous partnerships . 44 
 
 18. Use of credit of firm for private purposes . . . .44 
 Whether reasonable belief in pai-tner's authority makes a 
 
 difference 4G 
 
 19. Restriction of partner's authority by notification . . 48 
 Whether restrictive agreement among partners, though 
 
 notified, sufiicient without coaming . . . .48 
 'JO. Admissions and representations by partners . . .49 
 21. Notice to a partner when notice to the firm . . .50 
 
TABLE OF CONTENTS. 
 
 XXX Vll 
 
 CHAPTER V. 
 Of the Liability of Partners fur Wrongs. 
 
 -ART. 
 
 22. Liability of partners for wrongs in partnership business . 
 -23. Fraud or negligence in conduct of partnership business . 
 24. Misapplication of property in the hands of the firm . 
 
 Eeasons of the liability : doctrine of agency 
 -23. Improper employmentof trust funds in partnership business 
 
 Cannot be said to create partnership liability 
 
 FAQE 
 
 52 
 52 
 53 
 56 
 58 
 59 
 
 CHAPTER Vr. 
 Of the Rtlations of Partners to One Another. 
 
 -26. How terms of partnership may be varied . 
 
 27. What is partnership property .... 
 
 28. Property bought with partnership money . 
 
 29. Conversion of land held as partnership property 
 -30. Conversion of joint into separate estate, or vice versa 
 
 31. What is a partner's share . 
 
 32. 'Presumed equality of shares 
 •33. Eight to indemnity and contribution . 
 
 This right independent of agency 
 -34. Eight to take part in business . 
 -35. Duty of attending to business . 
 -36. Power of majority .... 
 -37. Change in nature of business needs consent of all 
 
 38. Introduction of new partner needs consent of all 
 -39. 'Custody of books 
 
 40. Expulsion allowable only under express power . 
 ■41. Retirement from partnership for a term only by consent 
 
 42. Retirement from partnership at wiU . 
 
 43. Partnership continued over after end of term 
 Neilson, v. Mossend Iron Co. 
 
 -44. Partners must act for common advantage . 
 
 45. Partners must not make undisclosed profits 
 Doctrine of agency 
 
 46. Partners must not compete with the firm . 
 
 61 
 62 
 65 
 
 66 
 67 
 68 
 69 
 70 
 71 
 72 
 73 
 73 
 73 
 74 
 75 
 76 
 77 
 77 
 78 
 80 
 80 
 81 
 82 
 83 
 
 ' N.B. — The rules in Articles 32—39 are subject to any speoial agree- 
 ment between the partners. 
 
xxxyiii TABLE OF CONTENTS. 
 
 PART II. 
 
 CHAPTEE VII. 
 Of Dissolution and its Consequences. 
 
 AET. PAGE- 
 
 47. Dissolution by retirement of partner 8j- 
 
 48. Dissolution by bankruptcy, &c. 80 
 
 49. Dissolution by death 88 
 
 50. Dissolution by assignment of partner's share in partnership 
 
 at will 88 
 
 51. Dissolution by business of partnership becoming unlawful. 80- 
 
 52. Causes for judicial dissolution 89- 
 
 Dissolution may be at suit of lunatic partner . . .91 
 Misconduct of partner as ground for dissolution ^ . .91 
 
 53. Eights of creditors against apparent members of firm . 9.5 
 
 54. Eight of partners to notify dissolution . . . .94 
 
 55. Continuing authority of partners to wind up affairs . . 95- 
 
 CHAPTEE Vni. 
 Rights of Partners after Dissolution. 
 56. Application of partnership property . 
 
 Nature of partner's right as lien .... 
 
 Against whom available 
 
 Confined to partnership property at date of dissolution 
 
 57. Sale of goodwill 
 
 Eights of purchaser thereof 
 
 Nature and incidents of goodwill .... 
 
 58. Eestraining subsequent use of partnership name 
 
 59. Apportionment of premiums ..... 
 
 Unsettled state of this Joctrine 
 
 Eule in Atwood v. Jilaude ...... 
 
 60. Defrauded partner's lien where partnership contract re 
 
 soinded for fraud 
 
 61. Account of profits after dissolution in certain cases . 
 
 62. Purchase of outgoing jiartner's share 
 
 Claims against continuing partners qua executors or trustees UN 
 
 Such cluims must bo distinct 121 
 
 Double or mixed claims for profits and interest not allowed 121 
 
 122 
 12;i. 
 
 Surviving partner, as such, is not trustee 
 C3. Distribution of assets on final settlement 
 
 lOO- 
 
 101 
 
 102 
 
 103 
 
 104 
 
 104 
 
 106 
 
 108 
 
 10J>- 
 
 112 
 
 11. ■> 
 
 114 
 114 
 117 
 
TABLE OF CONTENTS. 
 
 PART III. 
 ^roccliure anU aDminigttatton. 
 
 CHAPTER IX. 
 Procedure in Actions ly and against Partners. 
 
 -AET. PAQB 
 
 ■64. [Order XVI. r. 14 (No. 136)] Actions in name of firm . 125 
 
 65. [Order VII. r. 2 (No. 43)] Discovery of partners' names in 
 
 actions by firm 126 
 
 66. [Order IX. r. 6 (No. 53)] Service of writ in action against 
 
 firm 127 
 
 67. [Order Xn. r. 15 (No. 85)] Appearance of partners . . 127 
 -68. [Order XLII. r. 10 (No. 588)] Execution upon judgment 
 
 against firm 128 
 
 CHAPTEE X. 
 
 Procedure in Bankruptcy against Partners. 
 
 •69. Consolidation of proceedings under joint and separate 
 
 petitions 130 
 
 70. Creditor of firm may petition against one partner . .130 
 
 71. Court may dismiss petition as to some respondents only . 130 
 
 72. One trustee for property of partners separately bankrupt . 131 
 
 73. Creditor of firm may prove in separate bankruptcy for 
 
 purpose of voting 131 
 
 74. Dividends of joiut and separate properties generally de- 
 
 clared together 132 
 
 75. Actions in names of trustee and solvent partners . .132 
 
 CHAPTER XI. 
 Administration of Partnership Estates. 
 
 76. General rule of administration: joint and separate estate . 134 
 
 Dicta stating the rule 136 
 
 Provisions of Bankruptcy Act, 1883 137 
 
 Rule of Indian Contract Act 138 
 
 Discrepance between the legal and the mercantile system. 
 
 of administration 138 
 
 Law of Scotland 139 
 
 Law of France, Switzerland, and Germany . . . 140 
 
 77. Cases where joint creditors may prove agaiust separate 
 
 estate 141 
 
xl TABLE OF CONTENTS. 
 
 AET. PAOE; 
 
 78. Where joint estate may prove against separate estates or 
 
 estate of minor firm 1^1 
 
 79. Partners must not compete with creditors (subject to 
 
 special exceptions) • ^'^^ 
 
 Loan to firm by wife of partner ^■i^- 
 
 The exceptional right of proof in cases of fraudulent con- 
 version considered ; judgment in Lacey v. Hill . . 1 oO' 
 Creditor's right against estate of deceased partner . .154 
 
 80. Eights of joint creditors holding separate security, or con- 
 
 versely IJJ- 
 
 81. Double proof allowed on distinct contracts with firm and 
 
 with its members severally lo" 
 
 82. Effect of separate discharge of partner .... lo9- 
 
 Appendix. 
 
 Partnerships Bill, 1883 162- 
 
 Limited partnership clauses of Partnership BUI, 1880 . . ISl 
 
 REFERENCES, ETC. 
 
 Eeferences to the Law Journal are now supplied for cases in the- 
 Superior Courts of Common Law down to the commencement of 
 the Law Eeports. All modern cases decided by Superior Courts, 
 are also dated. The consecutive number of the volumes of the- 
 Law Journal (N.S., Chancery and Common Law Series) for a 
 given legal year, i.e. Michaelmas term to Michaelmas term, 
 may be found by subtracting 30 from the year of the century 
 in which that legal year begins. To find the corresponding- 
 volume of the Weekly Eeporter, subtract 51. 
 
 Lindley on Partnership (4th edition, 1878) is cited by the author's- 
 name alone. 
 
 The Indian Contract Act (IX. of 1872) is cited by the abbreviation 
 I. C. A. 
 
 I have sometimes referred to my own book on "Principles of 
 Contract" (4th edition, 1885) for the fuUer explanation of 
 matters belonging to that general subject rather than to the- 
 Law of Partnership. 
 
 Matters of practice and procedure which occur incidentally in the 
 facts of the cases cited as Illustrations have been tacitly adapted 
 to the present state of the law. 
 
A DIGEST 
 
 LAW OF PARTNEESHIP. 
 
 PART I. 
 
 Cfie Contract of ^^artncrsfitp. 
 
 CHAPTEE I. 
 
 Who are Partners. 
 
 1. Paetnership is the relation which subsists ^^^v- 1- 
 
 Art. 1. 
 
 between persons who have agreed to share the 
 
 „ , . . , Definition of 
 
 profits of a business carried on by all or any of partnership. 
 them on behalf of all of them. 
 
 Illustrations. 
 
 1. A. agrees with B. to carry the mail by horse and cart 
 from Northampton to BracMey on the following terms : B. is 
 to pay to A. £9 per mile per annum, and A. and B. arc to 
 share the expenses of repairing and replacing the carts, and 
 to divide equally the money received for conveying parcels, 
 and the loss consequent on any loss or damage thereof. A. 
 and B. are partners.' 
 
 2. A., the owner of a vessel, employs B. for some time as 
 skipper, and then agrees with B. that B. may take the vessel 
 
 1 Green v. Beesley (1835), 2 Bing. N. 0. 108. 
 
THE CONTRACT OF PARTNEBSEIP. 
 
 Chap. I. 
 Art. 1. 
 
 Proposed de- 
 finition ex- 
 plained. 
 
 •where he likes, and engage the crew and take cargoes at hia 
 discretion, paying to A. one-third of the net profits. A. and 
 B. are probably partners in the adventure.' 
 
 3. A. and B. are owners in common of a race-horse, and 
 agree to share its winnings and the expenses of its keep, A. 
 having the management of the horse and paying all expenses 
 in the first instance. A. and B. are not partners as to the 
 horse. It is doubtful whether they are partners as to the 
 profits that may be made by its employment.' 
 
 4. A. and B., tenants in common of a house, and desiring 
 to let it, agree that A. shall have the general management, 
 and provide funds for putting the house in tenantable repair, 
 and that the net rent shall be divided between them equally. 
 A. and B. are not partners.' 
 
 5. A., the proprietor of a theatre, lets the use of it to B., 
 who provides the acting company and takes on himself the 
 whole management, A. paying for the general service and 
 expenses of the theatre. The gross receipts are divided 
 ec[uaUy between A. and B. A. is not a partner with B., and 
 is not answerable for any infringement of dramatic copyright 
 in the performances given by B. under this arrangement.* 
 
 6. A., B., and C. agree to purchase "on joint account" the 
 X. estate, " each paying one-third of the cost and each having 
 one-third interest in it," and to form a new company to deal 
 with the property. This agreement does not constitute a 
 partnership between A., B., and C 
 
 The definition of partnership given by the Indian Con- 
 
 1 Steel V. Lester (1877), 3 C. P. D. 121, see judgment of 
 Lindley, J. 
 
 " French v. Styring (1SJ7), 2 0. B. N. S. 3o7; 26 L. J. C. P. 
 181. 
 
 3 Per "Willes, J., 2 C. B. N. S. at p. 366. But if they furnished 
 the house at their joint expense, and then let portions of the house 
 as lodgings, they might well be partners. Letting a house is not a 
 business, but letting furnished rooms is. 
 
 * Lyon V. Knowles (1863), 3 B. & S. 5o6 ; 32 L. J. Q. B. 71. 
 
 ' London Financial Association v. Kelk (1884), 26 Ch. D. 107, 
 143. 
 
WHO ABE PARTNERS. 
 
 ■tract Act, s. 239, is Kent's definition {Oomm. iii. 23) in a Chap. I. 
 more concise form, and runs as follows : — ^^^' ^' 
 
 Partnership is the relation which suhsists between per- 
 -sons who have agreed to combine their property, labour, or 
 ■skill in some business, and to share the profits thereof 
 between them. 
 
 Kent's definition was criticized by Jessel, M.E.., in 
 Fooley v. Driver (1876), 5 Ch. D. at p. 472, on the ground 
 that there may be partners who do not contribute any 
 property, labour, or skill, as where a share is given to the 
 "widow of a former partner. " Whether or not the associa- 
 tion requires that one or more of the partners shall con- 
 tribute labour or skill, or what they shall contribute, is a 
 question which may be considered as subsidiary." The 
 •definition now proposed is intended to meet this criticism 
 by avoiding reference to the partners' contributions to the 
 common fund. At the same time a partner's share is not 
 the less his property because it may have been given to 
 him for the purpose of being used in that way, and even 
 given out of the share of another partner. On the other 
 liand, division of profits, as we shall immediately see, is not 
 ■a sufficient though it is a necessary test of the existence of 
 ■a partnership. A man may in sundry ways take a share 
 , of the profits of a business without having such a share in 
 the business as will make him a partner. He will not be 
 a partner unless he has a direct and principal interest in 
 the business, or, as expressed in Cox v. Sicltman (art. 2, 
 illust. 1), unless the business is conducted on his behalf. 
 
 A number of other definitions of partnership are collected 
 from various English and other sources at the beginning 
 of Lord Justice Lindley's work. It is there said that most 
 of them are, with reference to English law, too wide, as 
 including corporations and joint-stock companies which 
 are not subject to the ordinary law of partnership. But it 
 
 b2 
 
THE CONTBACT OF PARTNERSHIP. 
 
 Chap. I. 
 Art. 1. 
 
 What is not 
 partnership : 
 common 
 ownership. 
 
 seems hardly satisfactory to say that the memhers of suck 
 hodies are not partners at all ; for the analogy of partner- 
 ship law does apply to them for some purposes, and 
 those not unimportant ones ; as, for instance, when ques- 
 tions arise as to the power of majorities to hind dissenting 
 members. And on the whole it seems hest to follow the 
 example of the Indian Act, and, instead of excluding these 
 associations from the category of partnerships, treat them 
 as "extraordinary partnerships " regulated by special legis- 
 lation.'- 
 
 The nearest approach to a definition which has been 
 given by judicial authority in England is the statement 
 that " to constitute a partnership the parties must have 
 agreed to carry on business and to share the profits in some 
 way in common ;" ^ where " profits " means the excess of 
 returns over outlay. This principle at once excludes several 
 kinds of transactions which at first sight have some appear- 
 ance of partnership. 
 
 Among its appHcations, exemplified in the cases above 
 cited as illustrations, are these : — The common ownership 
 of any property does not of itself create any partnership 
 between the owners ; moreover, there may be an agreement 
 as to the management and use of the propertj^, and the 
 application of the produce or gains derived from it, with- 
 out any partnership arising.^ On the other hand, there 
 may be a part ownership mthout partnership in the pro- 
 
 1 I. C. A. s. 266 ; see Art. 8, below. 
 
 " Mollwo, March & Co. v. Court of Wards (1872), L. E. 4 P. C. at 
 p. 436. 
 
 3 Illustrations 2, 3, and 6: — Lindley, i. 20, 24, o8. As to part 
 owners of ships (the most common and important case), see Lindley, 
 i. 66; Maude and Pollock on Merchant Shipping (4th Ed.), 100;. 
 Maclachlan on Merchant Shipping (2nd Ed.), 90, 102; Smith, 
 Merc. Law (8th Ed.), 191 ; Kent, Com. iii. 154, loo ; and Story on. 
 Partnership, eh. xvi. passim. 
 
WHO ABE PARTNERS. 
 
 ^erty itself, together with a real partnership in the business Chap. i. 
 of managing it for the common benefit.^ ^^^' ^' 
 
 The sharing of gross returns, with or without a common Sharing gross 
 interest in property from which the returns come, does not ^^ "™^' 
 •of itself create any partnership.^ It is practically more 
 important to exclude from the definition these relations 
 more or less resembHng it at first sight than to make the 
 ■definition a£Srmatively complete. Even an agreement to Agreement to 
 bear a definite share of loss as well as take a definite share and loss. 
 •of profit is not necessarily a partnership, for the purpose of 
 .giving either party the rights of a partner as against the 
 •other, though an unqualified agreement to share profit and 
 loss is very strong evidence of partnership.' 
 
 The remedy of specific performance is generally not Specific per- 
 ■applicable to an agreement to enter into partnership : for partnership 
 " it is impossible to make persons, who will not concur, carry '^°^ "^^^ ^' 
 ■on a business jointly for their own common advantage." 
 But where such an agreement has been acted on, the execu- 
 tion of a formal deed recording its terms may be ordered 
 by way of specific performance if necessary to do justice 
 l)etween the parties.* 
 
 Scottish writers make a difference between partnership " Joint ad- 
 iproper and " joint adventure," which is thus defined in 
 Bell's Principles, art. 392 :— 
 
 Joint adventm-e or joint trade is a limited partnership, 
 confined to a particular adventure, speculation, course of 
 
 ' Illustration 2 :— Cockburn, C. J., 2 0. B. N. S. 363 (1857) ; 
 •■cp. Crawshay v. Maule (1818), 1 S^wanst. at p. 523 ; Steward v. 
 Makeway (1869), 4 Ch. 603. 
 
 ■'- must. 5. 
 
 ^ Walker v. Hirsch (1884), 27 Cli. Div. 460 ; Pawsey v. Armstrong 
 (1881), 18 Oh.. D. 698, cannot no-w be relied on; see the remarks of 
 tlie Lords Justices on it in Walker v. Hirsch. 
 
 * England Y. Curling (1844), 8 Beav. 129, 137; Scott y. Rayment 
 .(1868), 7 Eq. 112. 
 
THE CONTRACT OF PARTNEESHIP. 
 
 Chap. I. 
 Art. 2. 
 
 Sharing pro- 
 fits only 
 evidence of 
 partnership. 
 
 trade, or voyage ; and in wliich the partners, either latent 
 or known, use no firm or social name, and iaciir no respon- 
 sibility beyond the limits of the adventure. 
 
 I do not find that the incidents of a " joiat adventure," 
 as far as it extends, can be distinguished from those of 
 partnership; but, whatever the importance of the distinc- 
 tion may be, it is not met with in the English authorities.^ 
 "We may compare with " joint adventure " the " association 
 en participation" recognized by French law (Code de 
 Comm. 47 — 50). But this seems to include transactions 
 wHch, according to our rules, are not partnerships at all, 
 such as the purchase of goods on common account to be 
 divided among the associates. See the collection of autho- 
 rities in the Codes Annotes. In the same way soeiete is 
 a wider term than om' "partnership." It covers such 
 matters as the sharing of benefit derived from the common 
 use or enjoyment of anything by owners or tenants in 
 common. 
 
 2. The receipt of a share of profits, or of 
 a payment contingent upon or varying with 
 profits, is relevant but not conclusive to show 
 the existence of a partnership. Whether a 
 partnership does or does not exist in any 
 particular case depends on the real intention 
 and contract of the parties as shown by the 
 whole facts of the casc.^ 
 
 ' Lord Eldon seems to have denied it. ;> Dow, at p. 'J29. 
 
 2 Molhvo, March ifc Co. v. Court of Wards (187L'), L. E. 4 P. 0. 
 419, 435. " Participation in profits is not now conclusive evidence 
 of the existence of a partnership, Lut it is one of the circTimstances, 
 and a very strong one, which are to be taken into consideration for 
 the purpose of seeing whettier or not a partnership exists." Per- 
 Cotton, L.J., G Ch. ]). at p. 31 j. 
 
WHO ABE PARTNERS. 
 
 Illustrations. Art's 
 
 1. A trader is indebted to several creditors, and they enter Riiie in Cox\. 
 into an arrangement with him hy which the trade is to be Siclman, and 
 conducted under their superintendence, and they are to be tions. 
 gradually paid off out of the profits. These creditors do not 
 
 thereby become partners of the debtor in his trade, or liable 
 for the debts of the concern: for "the real ground of the 
 liability," where such liability exists, "is that the trade has 
 been carried on by persons acting on his behalf;"' and in 
 the ease of such an arrangement as this, the trade is not 
 carried on by or on account of the creditors. The test of 
 liability is not merely whether there is a participation of 
 profits, but whether there is such a participation of profits as 
 to constitute the relation of principal and agent between the 
 person taking the profits and those actually carrying on the 
 business.^ 
 
 2. 0. H. becomes security for £10,000 for his son W. H., 
 on "W. H. becoming a member of Lloyd's. "W. H. agrees in 
 writing with C. H. that, among other things, S. and no other 
 person shall underwrite in the name of W. H. ; that 8. shall 
 be paid £200 a year and one-fifth of the net profits of under- 
 writing ; that C. H. may withdraw his security on notice, and 
 S. shaU thereupon cease to underwrite for W. H. ; and that 
 one half of the net profits, after deducting the share of S., 
 shall, together with the sum of £25 per annum, be considered 
 as owing and be paid to C. H. by W. H. Under this agree- 
 ment C. H. is not a partner but a creditor of W. H.' 
 
 1 Cox V. Hickman (1860), 8 H. L. 0. 268, 306 (the leading case 
 which put the law on its present footing). 
 
 - Lord Wensleydale in Cox v. Hickman (1860), 8 H. L. 0. at 
 pp. 312-3; Blackburn, J., in Bulkn v. Sharp (1865) (Ex. Ch.), 
 L. E. 1 0. P. atpp. 111-12 ; Oleasby, B., lb. at p. 118 ; and further 
 on the effect of Cox v. Hickman, Bramwell, B., lb. at p. 12*7, and 
 Lindley, i. 39. 
 
 ■> Ex parte Tennant (1877), Ch. Dir. 303. Compare Bullen v. 
 Sharp (1865) (Ex. Ch.), L. E. 1 C. P. 86, a somewhat similar case, 
 where there was no actual division of profits. 
 
THE CONTRACT OF PABTNEBSEIP. 
 
 Chap. I. 3. A partnership is entered into for a term certain, and it 
 
 is provided by a clause in the articles that if a partner dies 
 before the end of the term his representatives shall during 
 the rest of the term receive the share of profits he would have 
 been entitled to if living : a partner having died, his share of 
 profits is paid from time to time to his executors under this 
 agreement ; the executors do not thereby become partners.' 
 
 4. The business of an underwriter is conducted by A. in the 
 name of B., and A. receives a fixed salary and one-fifth of the 
 profits, subject as to this one-fifth to be wholly or partially 
 refunded in the event of unexpected losses becoming known 
 after the division of profits in any year. The contract 
 between A. and B. is not one of partnership, but of hiring 
 and of service.'' 
 
 5. A creditor, J., makes an agreement with his debtors, T. 
 and W., by which the sum due to him is to be paid out of the 
 profits of a building speculation to be executed by T. andW., 
 J. furnishing that part of the materials which belongs to his 
 own trade ; and after payment of the debt, and paying for 
 these new materials, the surplus is to belong to T. and "VV. 
 J. does not become a partner of T. and W., and is not liable 
 for the price of goods ordered by them for the purpose of 
 being used in the building.' 
 
 6. A., a publisher, agrees to publish at his own expense a 
 book written by B., and to pay to B. half the net profits, if 
 any, as ascertained by a certain conventional method of 
 taking accounts. It is doubtful whether this does or does not 
 constitute a partnership between A. and B. ;* but B. is not 
 
 ■ Holme V. Hammond (1872), L. E. 7 Ex. 218. 
 
 ' Boas V. Parhyns (1875), 20 Eq. 331. 
 
 3 Kilsliaw V. Juices (1863), 3 B. & S. 847 ; 32 L. J. Q. B. 217. 
 
 * In Beade v. Bentley (18o8), 4 K. & J. 6o6, Lord Hatherley, then 
 V.-O. Wood, seems to have thought tho " half -profits " contract 
 did create a partnership. Lord Justice Liudley (On Partnership, 
 i. 21, note q) thinks otherwise. So did the Court in the Scotch 
 case of Vcnahhsy. Wood, there cited by him (see next note); but 
 there, even if there had been a pai-tnership, it was very difficult to 
 make out that the debt sued for was a partnership debt. 
 
WHO ABE PARTNERS. 9 
 
 liable to a paper-maker for paper supplied to A. for the Chap. I. 
 general purposes of A.'s publishing business, and used for ■^'^^- 3- 
 printing B.'s book.' 
 
 The following special provisions were added 
 in 1865, by the Act to amend the Law of 
 Partnership (28 & 29 Vict. c. 86), sometimes 
 cited as Bovill's Act •} 
 
 3. " The advance of money by way of loan Act to amend 
 
 - . Law of Part- 
 
 to a person engaged or about to engage m nership: as 
 
 any trade or undertaking upon a contract in advancing 
 writing^ with such person that the lender shall Xre'of™ 
 receive a rate of interest varying with the ^^° 
 profits, or shall receive a share of the profits 
 arising from carrying on such trade or under- 
 taking, shall not of itself constitute the lender 
 a partner with the person or persons carrying 
 on such trade or undertaking, or render him 
 responsible as such." 
 
 ' Venahhs v. Wood (1839), 3 Eoss, L. 0. on Commercial Law, 529 ; 
 •cp. Wilson V. Whitehead (1842), 10 M. & W. 503 ; 12 L. J. Exch. 43. 
 
 ' This Act is stated in Lord Justice Lindley's work (p. 43) to 
 haye been passed " in order to remove the difficulties which it was 
 felt might be created by the decision in Cox v. Hickman." It 
 appears, however, by reference to the Parhamentary reports and 
 papers of the time, that the Act, as taken up by the Government of 
 the day and finally passed, was the residue of an attempt to intro- 
 duce a system of limited partnership intended to correspond to the 
 ■Continental societS en. commandite. It is also clear that the real extent 
 and effect of Cox v. Hickman were not at the time suspected by 
 ■any one. 
 
 ^ That is, a signed contract {Pooley v. Driver (1876), 5 Ch. D. at 
 p. 468), showing on the face of it that the transaction is one not of 
 partnership, but of loan : Syers v. Syera (1876), 1 App. Ca. 174, per 
 Lord Chelmsford. 
 
10 THE CONTRACT OF PAETNERBHIP. 
 
 Chap. I. Illustrations. 
 
 ^^^' *■ 1. A., the proprietor of a music-hall, signs and gives to B.^ 
 
 in consideration of an advance of £250, a paper in the follovr- 
 ing terms: "In consideration of the sum of £250 this day- 
 paid to me, I hereby undertake to execute a deed of co- 
 partnership to you for one-eighth share in the profits of th& 
 0. music-hall, to be drawn up under the Limited Partnership 
 Act of 28 & 29 Vict. c. 86." This is not a contract for a share 
 of profits within the Act, but constitutes a partnership at will, 
 in which, as between A. and B., B. is to share profit without 
 being liable for loss.' 
 
 2. B. & Co. are traders in partnership. A. lends money to- 
 the firm on a contract in writing, under which B. & Co. agree, 
 among other things, to repay the loan at the end of the 
 partnership, to conform to the partnership deed, which is to 
 be open to A.'s inspection, and to pay annually on account of 
 profits a definite share of net profits during the continuance 
 of the loan. The agreement also contains a provision that in 
 the event of A.'s bankruptcy B. & Co. may pay ofE the loan 
 and determine the agreement, a provision for settlement of 
 accounts at the end of the partnership, and paj-ment of the 
 loan and stipulated share of profits out of assets, subject to 
 the refunding by A. of any sum not exceeding the amount of 
 the original advance which may appear to have been overpaid 
 on account of profits, and an arbitration clause. The agree- 
 ment expressly purports to be for an advance by way of loan 
 under the provisions of 28 & 29 Vict. c. 86. This transaction 
 is merely colourable as a loan, and is not within the Act, and 
 A. is liable as a partner for the debts of B. & Co." 
 
 3. A., B., and C. enter into an agreement in writing, 
 expressly referring to 28 & 29 Vict. c. 86, and reciting that A> 
 and B. have agreed to become partners in a certain business, 
 and have requested C. to lend them £10,000 to be invested in 
 it. The agreement declares that the money is advanced by 
 C. to A. and B. by way of loan under the 1st section of the 
 Act, and such advance shall not be considered to make C. a 
 
 ' Syers x. Sijers (18T6), 1 App. Ca. 1Y4. 
 2 l^uoky v. Drioer (1870), 5 Ch. D. 4J8. 
 
WHO ARE PARTNERS. H 
 
 partner. This sum of £10,000 appears by the agreement to chap. I. 
 be, and in fact is, the whole capital of the business. ^''^- ^- 
 
 By other clauses of the agreement 0. is entitled to inspect 
 the books and receive a copy of the annual account, and to 
 share profits in a fixed proportion, and has the option of 
 demand.ing a dissolution of the partnership and conducting 
 the liquidation of the business in certain events. C.'s capital 
 invested in the business is not to be withdrawn tiU. the termi- 
 nation of the partnership. Under this agreement C. is a 
 partner with A. and B.' 
 
 4. "No contract for the remuneration of a As to agent 
 
 remunefated. 
 
 servant or agent oi any person engaged m any by share of 
 trade or undertaking by a share of the profits 
 of such trade or undertaking shall of itself 
 render such servant or agent responsible as a 
 partner therein, nor give him the rights of a 
 partner." 
 
 5. " No person being the widow or child of As to widows 
 the deceased partner of a trader, and receiving deceased part- 
 by way of annuity a portion of the profits share of ° 
 made by such trader in his business, shall by fmuity.^ 
 reason only of such receipt be deemed to be 
 
 a partner of or to be subject to any liabilities 
 incurred by such trader." 
 
 6. " No person receiving by way of annuity As to seUer of 
 or otherwise a portion of the profits of any ceiving share 
 business in consideration of the sale by him of 
 
 the goodwill of such business, shall by reason 
 only of such receipt be deemed to be a partner 
 
 1 Ex parte JDelhasse (1877-8), 7 Ch. Div. 511. 
 
12 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. I. 
 Art. 7. 
 
 Creditor re- 
 ceiving share 
 of profits to be 
 postponed to 
 other creditors 
 for value in 
 case of hank- 
 luptcy, &c. 
 
 of or be subject to the liabilities of the person 
 carrying on such business." 
 
 7. "In the event of any such trader as 
 aforesaid being adjudged a bankruiDt, or taking 
 the benefit of any Act for the relief of insolvent 
 debtors, or entering into an arrangement to pay 
 his creditors less than twenty shilHngs in the 
 pound, or dying in insolvent circumstances, the 
 lender of any such loan as aforesaid shall not 
 be entitled to recover any portion of his 
 principal, or of the profits or interests payable 
 in respect of such loan, nor shall any such 
 vendor of a goodwill as aforesaid be entitled to 
 recover any such profits as aforesaid, until the 
 claims of the other creditors of the said trader 
 for valuable consideration in money or money's 
 worth have been satisfied."' 
 
 "Whether the 
 Act adds to 
 Cox V. Hick- 
 man, QU. 
 
 It is by no means certain that this Act really adds any- 
 thing material, except the disabilities imposed by s. 5, to 
 what had abeady been decided in Cox v. Hickman.^ In 
 any case the special provisions of the Act, even if to some 
 extent superfluous, are not to be taken as in any way 
 detracting from the generality of the principle there laid 
 down.' "When this Act was introduced and passed, it was 
 assumed by the most competent persons, including some of 
 
 1 28 & 29 Vict. c. 86, ss. I— 5. The -n-ord "persoa" in the Act 
 includes a partnership firm, a joint-stock company, and a cor- 
 poration : s. 6. See comments in Lindley, i. 44-7. 
 
 = 8 H. L. 0. 208 (1860). 
 
 3 See Holme v. Hammond (18'72), L. E. 1 Ex. at pp. 227, 232. 
 
WHO ABE PARTNERS. IS 
 
 the Lords who had taken part in the decision of Cox v. chap. i. 
 Hickman,^ that it would make a material change in the '^" 
 
 law ; but after the exposition and discussion of Cox v. 
 Siekman^ in recent cases, it is difficult to say what, if 
 anything, the Act really adds to the effect of that case. 
 It has been suggested that, whereas Cox v. Hickman^ 
 decides only that sharing profits is not conclusice evidence 
 of partnership, and leaves it to be dealt with as a question 
 of fact whether this is sufficient evidence in any case, the 
 Act goes a step further, and prevents it from being alone 
 sufficient in any of the classes of cases dealt with.^ 
 
 On the other hand, the cases above cited show that the 
 Act will afford no protection to attempts to combine the 
 rights of a partner and of a lender by contracts for nominal 
 and merely colourable loans. There must be not merely 
 an advance to the business, but a loan to a real debtor 
 who is personally liable.' 
 
 With regard to a creditor who has lent money in con- Exclusion of 
 sideration of a share of profits, the Act excludes him ing profits 
 absolutely and according to its literal terms from com- tior-with^^'^" 
 
 petina: with other creditors. It does not matter whether others is 
 
 . . , . J. absolute. 
 
 they were or were not creditors during the continuance of 
 
 the loan, nor whether they were creditors in the business 
 
 or not. Nor can such a creditor prove his debt in the 
 
 bankruptcy until aU the other creditors are paid.* But if, 
 
 during the same time, he has lent other sums at a fixed rate of 
 
 interest, he may recover those sums like any other creditor.^ 
 
 If it were sought to evade this prohibition and make the 
 
 > 8 H. L. C. 268 (1S60). 
 
 2 1 Sm. L. 0. (9tli Ed.) 909 ; 5 Oh. D. 485 ; 7 Oh. Div. 531. 
 
 3 See, in addition to the cases already cited, Badeley v. Consoli- 
 dated Bank (1886), 34 Oh. D. 536. 
 
 * Ex parte Taylor (1879), 12 Ch. Div. 366, 379. 
 5 Ex parte Mills (1873), 8 Oh. 569. 
 
14 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. I. 
 Art. 8. 
 
 Act an instrument of fraud, by advancing a small sum in 
 consideration of a large share of profits, and a large sum 
 at fixed interest, the lender would probably be treated as 
 a partner.' The operation of s. 5 is not excluded by 
 lending money for fixed interest and a sum equal to a 
 specified share of profits, and calling that additional sum 
 a salary.^ 
 
 This express postponement of the creditor receiving a 
 share of profits is in truth a clumsy way of putting him 
 approximately in the position of a true limited partner, or 
 commanditaire in the French termiuology. For some 
 reason which I have never been able to understand, people 
 in this country seem to find almost invincible diflS.culty in 
 grasping the conception of a partner with limited liability 
 who, being a true partner, is not a creditor of the firm at 
 all, so that there can be no question of his competing with 
 creditors in respect of his capital. Yet the position of a 
 shareholder in a limited company (which is essentially the 
 same thing) is now quite familiar. Hence the very 
 imperfect success of Bovill's Act, and the failure of other 
 attempts in the same direction. 
 
 It is to be observed that the oth section of the Act "does 
 not deprive the lender of any security he may taie for liis 
 money;" if he has taken a mortgage, for instance, his 
 rights as mortgagee are not affected,' and he may enforce 
 any such secm-ity by way of foreclosure or sale.* 
 
 Limit to 
 number of 
 partners in an 
 ordinary part- 
 nership. 
 
 8. An ordinary partnership may consist o£ 
 any number of persons not exceeding ten, 
 
 ' Ex parte Mills (1S73), S Oil. at pp. JT4— 6. 
 
 = Re Stone (188G), 33 Ch. D. 541. 
 
 ' Lindley, i. 4o ; Ex parte Shell (18V7), 4 Ch. Div. 789. 
 
 * Badeley v. Consolidated Bank (1886), 34 Ch. D. 536. 
 
WHO ARE PARTNERS. 
 
 -where the business of the partnership is bank- chap. i. 
 ing, and not exceeding twenty where it is any — ^^— 
 ■other business. 
 
 A partnership consisting of any greater 
 number of persons (hereinafter called an extra- 
 ordinary partnership) must either be 
 
 a. Registered as a company under the 
 
 Companies Act, 1862, or 
 
 I. Formed in pursuance of some other 
 
 Act of Parliament or of letters patent, or 
 c. A company engaged in working mines 
 
 within and subject to the jurisdiction of the 
 
 Stannaries.^ 
 
 Extraordinary partnerships are governed by 
 the several statutes, instruments, laws, and 
 customs which are specially applicable thereto 
 respectively. 
 
 At common law there was no limit to the number of 
 persons who might enter into partnership, and it is the 
 better opinion ^ that there was nothing to prevent them 
 from dividing the capital into transferable shares and 
 acting as a joint-stook company ; but there were always 
 great practical inconveniences about this. A partnership 
 not complying with the conditions of the Companies Act is 
 now illegal, and the members of such an association would 
 be unable to enforce any claim arising out of the partner- 
 ship dealings, although they would be individually liable 
 for the debts of the concern to a creditor who had dealt 
 
 1 Companies Act, 1862 (25 & 26 Vict. c. 89), s. 4. 
 " Lindley, i. 191, 195. 
 
 15 
 
16 THE CONTRACT OF PARTNEB9HIP. 
 
 Chap. I. with the firm without notice of the state of things making- 
 '— — its business illegal.' 
 
 Associations carrying on that which at common law 
 would be a partnership business, but exceeding the number- 
 of ten in the case of banking, and twenty in the case of 
 any other business, and complying with the law by coming 
 within one of the special categories laid down in the Com- 
 panies Act, may be called extraordiaary partnerships. 
 They are governed by special rules of law, for the most 
 part statutory, which we shall not here enter upon. Th& 
 statutes, however, are to a considerable extent founded 
 upon the principles of ordinary partnership law, so that 
 they cannot be sufficiently understood without a knowledge- 
 of those principles. 
 
 Of the kinds of extraordinary partnerships above speci- 
 fied, the class [a) are necessarily corporations, the associa- 
 tion being made an artificial person with rights and duties 
 distinct from those of the natural persons who at any given 
 time are members of it. 
 
 The class {b) are generally but not necessarily^ incorpo- 
 rated. 
 
 The class (c) are in no case incorporated, but are ordinarjr 
 partnerships modified by local custom, and since 1869 by 
 statute also.' 
 
 It may be useful to note here that there are associations 
 which, though not partnerships, yet exist for the acquisi- 
 tion of gain by their members within the meaning of the 
 
 1 Sse Lindley, i. 196, 199. A creditor -n-ho has notice, e.g. a 
 solicitor -n-lao has rendered professional services in forming and 
 carrying on tlie association, knowing the number of members to- 
 exceed twenty, cannot recover : Me S. IVales Atlantic Steamship Co. 
 (187o-6), 2 Ch. Div. VGS. 
 
 = By 7 Wm. 4 & 1 Vict. c. 73, the Crown may establish com- 
 panies by letters patent without incorporation. 
 
 » The Stannaries Act, 32 & 33 Yict. c. 19. 
 
WHO ABE PARTNERS. 17 
 
 Companies Act, and are therefore unlawful if not regis- chap. i. 
 tered: for example, a mutual marine insurance associa- ^ ' ' 
 tion,^ or mutual benefit ^ or loan ' society. On the other 
 hand societies may be formed for such purposes as invest- 
 ment of money, or buying property and re-selling it to the 
 individual members, which are neither partnerships nor for 
 the acquisition of gain on a common account ; and such 
 societies do not need registration even if the number of 
 members exceed twenty.* 
 
 1 Padstow Assurance Association (1882), 20 Cli. Div. 137. 
 
 2 Jennings v. Hammond (1882), 9 Q. B. D. 225. ' 
 s Shaw v. Benson (1S83), 11 Q. B. Div. 563. 
 
 4 Re Siddall (1885), 29 Ch. Div. 1 ; cp. Smith v. Anderson (1880), 
 15 Ch. D. 247. 
 
 P. 
 
18 
 
 •THE CONTRACT OF PARTNERSHIP. 
 
 CHAPTER II. 
 
 Of the Firm. 
 
 Chap. II. 
 Art. 9. 
 
 The firm. 
 
 Partners may 
 adopt firm- 
 name and use 
 it in all part- 
 nership 
 affairs. 
 
 Exclusive 
 right of firm 
 to trade name. 
 
 9. " Peesons who have entered into partner- 
 ship with one another are called collectively a 
 firm."^ 
 
 10. The business of a firm may be carried 
 on under any name, not distinctly purporting 
 to be a corporate name, which the partners 
 think fit to adopt for that purpose, subject to 
 the condition mentioned in the next following 
 article. 
 
 The name so adopted is the name of the 
 firm, and all acts done and instruments executed 
 in that name by a partner or other person duly 
 authorized thereto are binding on all the part- 
 ners.^ 
 
 11. Where a particular name under which a 
 business is carried on by any person, firm, or 
 company has become associated with and appro- 
 priated to that business, no other person may 
 carry on a like business under the same name, 
 
 ' I. C. A. s. 239. 
 
 - As to tlie authority of partners to bind tie firm, see Arts. 17- 
 21, below. 
 
OF THE FIRM. 19 
 
 ■or a name only colourably differing therefrom, chap. ii. 
 
 in a manner calculated to deceive customers by '- — '- — - 
 
 leading them to believe that they are dealing 
 with such person, firm, or company as first 
 mentioned.^ 
 
 Grenerally speaking, every man is by the law of England 'Wlat use o£ 
 
 names is 
 
 iree to call himself by wnat name he chooses, or by different lawful. 
 Tiames for different purposes,^ so long as he does not use 
 this liberty as the means of fraud or of interfering with 
 -other substantive rights of his fellow-citizens. And this 
 •extends to commercial transactions as well as to the other 
 affairs of Hfe : " Individuals may carry on business under 
 any name and style they may choose to adopt." '^ The 
 style of the firm need not and often does not express the 
 name of any actual member of it. It may contain, and 
 often does contain, other names, or no individual names at 
 •all. On the other hand, although no man is to be pre- 
 vented from carrying on any lawful business in his own 
 name by the mere fact of his name and business being 
 like another's,* yet the mere fact of the name itself being 
 his own does not give him any right or licence to do so 
 
 1 See the authorities cited in tlie foUowing notes. This article is 
 inserted here for convenience, though it obviously belongs, pro- 
 perly speaking, not to the law of partnership, but to that sub- 
 division of the general law of ownership which has to do with 
 •copyidght and other analogous rights. 
 
 2 See the note in 3 Dav. Conv. pt. i. 357 — 362. Strictly speak- 
 ing, this does not apply to names of baptism. The same or greater 
 ireedom existed in the Eoman law, which allowed a change of 
 nomen, prcenomen, or cognomen alike. C. 9, 25, de muiat. nom. 1. 
 
 3 Per Erie, C.J., Mavghan v. Sharpe (1864), 17 C. B. N. S. 
 at p. 462 ; 34 L. J. C. P. 19 ; and see remarks of Jessel, M.E., in 
 Merchant Banking Co. of London v. Merchants' Joint Stock Bank 
 (1878), 9 Ch. D. 560 ; Levy v. Walker (1879), 10 Ch. Div. 436, 445. 
 
 * Burgess v. Burgess (1853), 3 D. M. G. 896. 
 
 c2 
 
20 
 
 THE CONTRACT OF PARTNEESHTP. 
 
 Chap. II. 
 Art. 11. 
 
 Assumption 
 of corporate 
 name. 
 
 Foreign laws 
 as to trade 
 names. 
 
 witli sucli additions or in such a manner as to deceive the- 
 public, and make them believe they are dealing with some- 
 one else.^ 
 
 It is said to he an offence against the prerogative of' 
 the Crown for private persons to " assume to act as a cor- 
 poration." But it is hy no means clear how it can be 
 punished (though possibly the Queen's Bench Division 
 may have jurisdiction to punish it by fine).^ And at all 
 events the use of a description such as " Company," which 
 by common usage is applicable to incorporated and imin- 
 corporated associations alike, does not amount to the offence- 
 in question.' 
 
 The laws of Continental states are much more strict and 
 definite as to the use of trade names. In France the 
 style of a commercial firm [raisoii socia/c) must contain no- 
 other names than those of actual partners.* In Germany 
 it must, upon the first constitution of the firm, contain the 
 name of at least one actual partner, and must not contain 
 the name of any one who is not a partner ;5 but when the 
 name of the firm is once established in conformity with 
 
 ' Holloway v. Ilottoway (1850), 13 Beav. 209; Jfassam \. Tlwrlty's 
 Cattle Food Co. (1880), 14 Ch. Div. 7-lS. 
 
 " The attempt to estabKsh a gtiild or " communa " -without -war- 
 rant -^'as formerly puniahable by fine. Madox, Hist. Ex. i. o62, 
 gives several instances from 26 H. 2. Many of these " adulterine 
 guilds," as they are called, in London and Middlesex; the burgesses 
 of Totnes and of Bodmin ; and Ailwin the mercer and other to-svns- 
 men of Gloucester, -were amerced in considerable sums on this 
 account. See Stubbs, Const. Hist. i. 418. It can hardly be said,, 
 however, that these bodies " assumed to act as corporations " in tha 
 modern technical sense. 
 
 3 Liudloy, i. 182. 
 
 * Code de Commerce, 21. For the French law as to the use o£ 
 family names generally, see Du Boulay v. Du Boulay ( 1 869), L. E. 
 2 P. 0. 430. 
 
 Haudclsgesetzbuch, 17. 
 
OF THE FIRM. 21 
 
 "these rules, it may be continued notwithstanding an Chap. ii. 
 assignment of the business, or changes in the persons '- — .' — 
 
 who are partners for the time being, subject to certain 
 ■consents being given.^ 
 
 But although " in this country we do not recognize the Exclusive 
 absolute right of a person to a particular name to the names analo- 
 •estent of entitling him to prevent the assumption of that pe^Wn tode 
 name by a stranger," yet " the right to the exclusive use mark. 
 •of a name in connexion with a trade or business is familiar 
 to our law."^ This right is analogous to, but not identical 
 with, the right to a trade mark proper. The right of the 
 possessor of a trade mark in the strict sense (which is now 
 'Subject to statutory conditions under the Patents, Designs 
 and Trade Marks Act, 1883, 46 & 47 Vict. c. 57), is 
 i;o prevent competitors from trading on his reputation, and 
 passing oil their wares as his own by means of copies or 
 •colourable imitations of the visible sign or device which he 
 has appropriated to his business ; and the right of the 
 possessor of a trade name stands on the like footing. 
 " The principle upon which the cases on this subject pro- 
 ceed is not that there is property in the word, but that it 
 is a fraud on a person who has established a trade, and 
 •carries it on under a given name, that some other person 
 ■should assume the same name, or the same name with a 
 slight alteration, in such a way as to induce persons to 
 •deal with him in the belief that they are dealing with the 
 ^person who has given a reputation to the name." ' 
 
 The right to a particular name may likewise be infringed May be in- 
 
 f rinsrecl by 
 
 ■circuitously by means of a trade mark fitted to bring goods means of trade 
 
 ^ Handelsgesetzbucli, 23, 24. 
 
 " Bu Boulay v. Du Boulay (1869), L. E. 2 P. 0. 430, 441. 
 
 ■* Giffard, L.J., in Lee v. Haley (1869), 5 Ch. at p. 161. The 
 ■same principle has been acted on by the Courts of France : Sirey, 
 Codes Annotes, on Code de Commerce, 18, 19, no. 46 of note. 
 
22 THE CONTRACT OF PABTNEBSHIP. 
 
 Chap. II. into the market under a deceptive name. In sucli a case- 
 ^''^- "■ the first appropriator of the name has his remedy no less- 
 
 marks apart j|^ -f ^j^ ^^^^ j^a,d heen directly adopted by his rival, 
 
 tromminnge- _ r, i, 
 
 ment of trade and it is no answer to his complaint to say that there is no- 
 KioL such j)hysical resemblance between the trade marks as 
 
 would deceive a customer of ordinary caution. The trade- 
 mark complained of may be free from offence in its primary 
 character and oifice as a visible symbol ; but that will be 
 no excuse for a breach of the distinct duty to respect 
 the trade names as well as the trade marks of other- 
 dealers.i And it is immaterial whether there be any 
 fraudulent intention or not.^ 
 Whether Where a name of incorporation is such as to be, if used 
 
 a-aSlt^cor- ^9^ trading purposes, an infringement of an existing trade 
 poration for ^ame, it is doubtful whether an action can be maintained 
 
 trading in its 
 
 corporate against the corporation for trading in its corporate name, 
 the name or whether the only remedy is not against those persons, 
 
 fri^gement'of individually who procured that name to be given.' But 
 
 existing trade g^^gj^ an action, it is submitted, may well lie. For though 
 
 name. . 
 
 it may be true that the corporation has no power to trade- 
 under any other name than its proper name of incorpora- 
 tion, yet it is in no way bound to trade at all ; and if it 
 has a name under which it cannot trade ■without interf ering- 
 with other persons' rights, that is its misfortiuie, but can 
 surely make no difference to their rights. 
 
 ' Seixo V. Provezende (1865), 1 Cli. 192. The leading authorities- 
 on this and the aUied subject of trade marks are collected in Cojw v. 
 Evans (1874), 18 Eq. 138 ; see too the explanations and distinctions, 
 given in Singer Mtumfacturing Co. y. }Vilson (18TG), 2 Ch. Div. at 
 pp. 441 seq., by Jessel, M.B., and S. C. in C. A. ib. 451 seq.; and 
 further, on the subject generallj', per Lord Blackburn, Singer 
 Manufacturing Co. v. Loog (1882), S App. Ca. 29. 
 
 2 JlendriU v. MonUiyu (1881), 17 Ch. Div. 638. 
 
 3 Lairson v. Bahlc of London (1856), 18 C. B. N. S. 84; 25 L. J.. 
 C. r. 188. 
 
OF THE FIRM. 23 
 
 There can te no trade name unless in connexion with Chap. ii. 
 an existing husiaess. A man cannot appropriate a name 
 
 for this purpose hy the mere announcement of his intention '^° ^^^? 
 
 ^ !: ' name without 
 
 to trade under it.^ actual busi- 
 
 It may be proper to mention here that the law of I'lrm not re- 
 England knows nothing of the firm as a body or artificial ^_S^?\ ^ 
 person distinct from the members composing it,^ though son. 
 the firm is so treated by the universal practice of merchants 
 and by the law of Scotland. In England the firm-name 
 may be used in legal instruments both by the partners 
 themselves and by other persons as a collective description 
 of the persons who are partners in the firm at the time to 
 which the description refers : ^ and under the Rules of the 
 Supreme Court actions may now be brought by and 
 against partners in the name of their firm.* An action 
 between a partner and the firm, or between two firms 
 having a common member, was impossible at common law, 
 and it has not yet been decided that it is possible since the 
 Judicature Acts ; but Lord Justice Lindley's opinion is in 
 favour of such actions being now maintainable, and pro- 
 bably in the firm-names.^ Nevertheless the general 
 doctrine that " there is no such thing as a firm known to 
 the law"^ remains in force. In Scotland, on the other otherwise in 
 hand, the firm is a "separate person" ; not only can it Scotland. 
 sue and be sued in the " social name," but it may sue and 
 be sued by its own members, and firms having one or more 
 members in common may sue each other.' 
 
 1 Lawion v. Bcmh of London (1856), 18 0. B. N. S. 84; 25 L. J. 
 O. P. 188. 
 
 2 Lindley, i. 207. 
 
 3 Ih. 208-9. 
 
 * Order is. r. 6, etc. ; Arts. 64 — 68, below. 
 
 5 i. 212, 469. 
 
 6 James, L.J., Ex •parte Corhett (1880), 14 Oh. Div. at p. 126. 
 
 ' Bell, Pr. of Law of Scotland, § 357; Second Eeport of the 
 
24 
 
 THE CONTRACT OF PARTNEBSEIP. 
 
 Chap. II. 
 Art. 18. 
 
 Guaranty for 
 or to a firm 
 not binding, 
 as to events 
 happening 
 after a change 
 in the consti- 
 tution of the 
 firm, unless 
 contrary in- 
 tention 
 appears (Mer- 
 cantile Law 
 Amendment 
 Act). 
 
 12. "No promise to answer for the debt, 
 default, or miscarriage of another made to a 
 firm consisting of two or more persons, or to a 
 single person trading under the name of a firm, 
 and no promise to answer for the debt, default, 
 or miscarriage of a firm consisting of two or 
 more persons, or a single person trading under 
 the name of a finn, shall be binding on the 
 person making such promise, in respect of 
 anything done or omitted to be done after a 
 change shall have taken place in any one or 
 more of the persons constituting the firm, or in 
 the person trading under the name of a firm, 
 unless the intention of the parties that such 
 promise shall continue to be binding notwith- 
 standing such change shall appear either by 
 express stipulation or by necessary implication 
 from the nature of the firm or otherwise."* 
 
 This affirms 
 common law. 
 
 This enactment of the Mercantile Law Amendment Act, 
 1856, is believed to have only affirmed the result of 
 previous decisions.^ The Indian Contract Act has a 
 similar and more concisely worded provision (s. 260) : — 
 
 " A continuing guaranty given either to a firm or to a 
 third person in respect of the transactions of a firm is, in 
 
 Mercantile Law Commission, 18, 141. "Where the firm, name is 
 merely descriptive and impersonal, however, as " The Carron Iron. 
 Company," some of the members must be joined by name in the 
 action. 
 
 ' 19 & 20 Vict. c. 97, s. 4. 
 
 " Backhouse v. ffall (1865), 6 B. & S. 507, 520 ; 34 L. J. Q. B. 
 141, per Blackburn, J. 2 Wms. Saund. 821 ; Lindley, i. 214. 
 
OF THE FIRM. 25 
 
 ilie absence of agreement to the contrary, revoked as to Chap. ii. 
 future transactions by any change in the constitution of ^ ' " 
 the firm to which, or in respect of the transactions of 
 which, such guaranty was given." 
 
 An intention that the promise shall continue to be Evidence of 
 binding, notwithstanding a change in the members of the ^arantyshaU 
 :firm, cannot be inferred from the mere fact that the continue. 
 primary liability is an indefinitely-continuing one ; as, for 
 example, where the guaranty is for the sums to become 
 due on a current account.^ Such intention may appear 
 " by necessary implication from the nature of the firm " 
 where the members of the firm are numerous and 
 frequently changing, and credit is not given to them 
 individually, as in the case of an unincorporated insurance 
 society.^ 
 
 ^ Backhouse v. Hall (1865), 6 B. & S. 507, 520 ; 34 L, J. Q. B. 
 141., 
 
 '' See Melcalfy. Bruin (1810), 12 East, 400. 
 
26 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 CHAPTER III. 
 
 Chap. III. 
 Art. 13. 
 
 Persons liable 
 by "bolding 
 out." 
 
 This rule a 
 branch of 
 estoppel. 
 
 Of Persons who are liable as Partners. 
 
 13. Every one who by words spoken or 
 written, or by conduct, represents bimself, or 
 who allows himself to be represented, as a 
 partner in a particular firm, is liable as such 
 partner to any one who has on the faith of any 
 such representation given credit to the firm, 
 whether the representation was or was not 
 made or communicated to the particular person 
 so giving credit by or with the knowledge of 
 the apparent partner making or allowing the 
 representation.* 
 
 " "Where a man holds himself out as a partner, or allows 
 others to do it, he is then properly estopped from denying- 
 the character he has assumed, and upon the faith of which 
 creditors may be presumed to have acted. A man sa 
 acting may he rightly held liable as a partner by 
 estoppel."^ The rule is, in fact, nothing else than a 
 special application of the much wider principle of estoppel, 
 which is that if any man has induced another, whether by 
 assertion or by conduct, to believe in and to act upon the 
 
 1 Cp. I. C. A. 245, 24G. 
 
 ^ Per Our., Mollwo, March .t Co. v. Court of Wards (1872), L. E.. 
 4 P. 0. at p. 435. 
 
"HOLDING OUT." 2T 
 
 existence of a particular state of facts, lie cannot te heard, Chap. iii. 
 
 Art 13 
 as against that other, to deny the truth of those facts.' It '- — '- — 
 
 out.' 
 
 is therefore immaterial whether there is or is not in fact, or 
 to the knowledge of the creditor, any sharing of profits. 
 And it makes no difference even if the creditor knows of 
 the existence of an agreement between the apparent 
 partners that the party lending his name to the firm shall 
 not have the rights or incur the liabilities of a partner. 
 For his name, if lent upon a private indemnity as between 
 the lender and borrower, is stiU lent for the very purpose 
 of obtaining credit for the firm on the faith of his being 
 responsible ; and the duty of the other partners to indem- 
 nify him, so far from being inconsistent with his liability 
 to third persons, is founded on it and assumes it as un- 
 qualified.^ 
 
 To constitute "holding out" there must be a real What 
 lending of the party's credit to the partnership. The use "holding 
 of a man's name without his knowledge cannot make him 
 a partner by estoppel.' Also the use of his name must 
 have been made known to the person who seeks to make 
 him liable; otherwise there is no duty towards that 
 person.* There may be a " holding out" without any 
 direct communication by words or conduct between the 
 parties. One who makes an assertion intending it to be 
 repeated and acted upon, or even under such circumstances 
 that it is likely to be repeated and acted upon by third 
 persons, will be liable to those who afterwards hear of it 
 and act upon it. " If the defendant informs A. B. that 
 
 1 For fuller and more exact statements, see Carr v. London and 
 North Western Railway Company (1875), L. E. 10 0. P. at pp. 316, 
 317 ; Stephen's Digest of the Law of Evidence, Art. 102. 
 
 2 Lindley, i. 48. 
 
 3 Ih. 50; Fox V. Clifton (1830), 6 Bing. 776, 794. 
 « Lb.: MartynY. Gray (1863), 14 C. B. N. S. 824. 
 
!8 TEE CONTRAQT OF PABTNERSHIP. 
 
 Chap. III. he is a partner in a commercial establishment, and A. B. 
 Art 13 
 
 '- — '- — informs the plaintiff, and the plaintiff believing the 
 
 defendant to be a member of the firm supplies goods to 
 them, the defendant is liable for the price." If the party 
 is not named or even if his name is refused, but at the 
 same time such a description is given as sufficiently 
 identifies the person, the result is the same as if his name 
 had been given as a partner.^ 
 Doctrine of The rule as to "holdina: out" extends to administration 
 
 "holding . 
 
 out "applies in bankruptcy. If two persons trade as partners, and 
 
 tion in^bank^' ^^J goods on their Credit as partners, and afterwards both 
 
 Tuptcy. become bankrupt, then, whatever the natm-e of the real 
 
 agreement between themselves, the assets of the business 
 
 must be administered as joint estate for the benefit of the 
 
 creditors of the supposed firm.^ 
 
 It does not The doctrine of "holding out" does not extend to bind 
 
 apply to bind 
 
 ■a deceased the estate of a deceased partner where, after his death, the 
 
 estate. business of the firm is continued in the old name ; and 
 
 whether creditors of the firm know of his death or not is 
 immaterial. " The executor of the deceased incurs no lia- 
 bility by the continued use of the old name."^ 
 liiability of A partner who has retired from the firm may be liable 
 
 nerr on the principle of "holding out" for debts of the firm 
 
 contracted afterwards, if he has omitted to give notice of 
 his retirement to the creditors. But he cannot be thus 
 liable to a creditor of the firm who did not know him to 
 be a member while he was such in fact, and therefore 
 cannot be supposed to have dealt with the firm on the 
 
 I Per Williams, J., Martyn v. Gray (1863), li 0. B. N. S. at 
 p. 841. 
 
 ■ Re Rowland and Crankshaw (1866), 1 Cli. 421 ; Ex parte Hay- 
 man (1878), 8 Ch. Div. U. 
 
 ^ Lindley, i. 52, 404. 
 
"HOLDING OUT." 29> 
 
 faitli of having his credit to look to.^ This is the meaning chap. iii. 
 of the saying that " a dormant partner may retire from a '^ ' ' 
 firm without giving notice to the world." ^ 
 
 There is one reported case ^ in which a retired partner Principle of 
 
 •^ '■ "holding 
 
 was held liable for damage done by a cart belonging to out" not ap- 
 the firm, on which his name still remained. But to make fiabmty in 
 a man liable in tort as an apparent partner seems to *°'^*' 
 involve confusion of principles. Liability by "holding 
 out" rests on the presumption that credit was given to the 
 firm on the strength of the apparent partner's na,me. 
 This has no application to causes of action independent of 
 contract : when, as in the case referred to, a carriage is 
 run into by a cart, there can be no question of giving 
 credit to the man whose name is on the cart. 
 
 1 Carter v. Whalley (1830), 1 B. & Ad. 11. 
 
 2 Heath v. Sansom (1832), 4 B. & Ad. 1*72, 1*77, per Patteson, J. 
 On the subjects of tMs and of the preceding paragraph, see further 
 Art. 53 below. 
 
 3 Stables v. Elej/ (1823), 1 C. & P. 614. Por the true principle, see 
 Quarman v. Burnett (1840), 6 M. & W. at p. 508, where it is 
 observed that a representation by holding out " can only conclude 
 the defendants with respect to those who have altered their condi- 
 tion on the faith of its being true." 
 
30 TEE CONTRACT OF PARTNERSHIP. 
 
 CHAPTEE IV. 
 
 Of the Liahility of Partners for Partnership Belts and 
 the Authority of Partners to hind the Firm. 
 
 Chap. IV. 14. Every partner is liable jointly with the 
 
 -^^: — '- — other partners for all debts and obligations in- 
 partuers for curred while he is a partner and in the usual 
 
 debts of firm. o , n i • t • i 
 
 course or the partnership business by or on 
 behalf of the firm ; and after his death his 
 estate is also severally liable for such debts and 
 obligations, so far as they remain unsatisfied, 
 but subject to the prior payment of his separate 
 debts.^ 
 
 The individual partner's liability for the dealings of the 
 firm, whether he has himself taken an active part in them 
 or not, is of the same nature as the liability of a principal 
 for the acts of his agent, and is often treated as a species 
 of it.^ "Each individual partner constitutes the others 
 his agents for the purpose of entering into all contracts 
 for him within the scope of the partnership concern, and 
 consequently is liable to the performance of all such con- 
 tracts in the same manner as if entered into personally by 
 himself." 3 
 
 ' Altered from I. C. A. 249. 
 
 ■ See Cox V. Hickman (1860), 8 H. L. C. at pp. 304, 312. 
 
 3 Per Tindol, C. J., ia Fox v. Cli/ton (1830), 6 Bing. at p. 776. 
 
LIABILITY AND AUTHORITY. 31 
 
 Tke limitation of the liability to things done in the Chap. iv. 
 ■usual course of business will be presently spoken of under '- '- 
 
 the correlative head of the partner's authority to bind the 
 inn. 
 
 It used to be stated that partnership debts are ioint and '^^ liability 
 
 not joint and 
 several ; but it has been decided by the House of Lords in seyeral. 
 
 Kendall v. Hamilton^ that they are joint only, except as to 
 the estate of a deceased partner. The facts of that case 
 "were in substance these : A. and B., ostensibly trading in 
 partnership, borrowed money of C, for which C. sued 
 them and obtained judgment, but the judgment was not 
 ■satisfied. Afterwards C discovered that D., a solvent 
 person, had been an undisclosed partner with A. and B. at 
 the time of the loan as to the adventure in respect of 
 w^hich it was contracted. The law being settled that a 
 judgment recovered against some of divers joint con- 
 tractors is, even without satisfaction, a bar to an action 
 against another of them alone, C.'s action was maintain- 
 able against D. only if D.'s liability for the loan was 
 several as weU as joint. It was held that there was no 
 real authority for the supposed peculiarity of partnership 
 debts as regards living partners ; that the several liability 
 of a deceased partner's estate was not an effect of the 
 supposed rule, but a special and somewhat anomalous 
 favour to creditors ; and that in this case the debt was not 
 joint and several, and C.'s action was barred. 
 
 In the ease of a deceased partner's estate it does not 
 matter in what order the partnership creditor pursues his 
 concurrent remedies, provided the two following conditions 
 are substantially satisfied : first, he must not compete with 
 the deceased partner's separate creditors; secondly, the 
 surviving partner must be before the Court.^ 
 
 4 App. Oa. 504 (1879). 
 
 Be Eodgaon, Beckett v. Bamsdale (1885), 31 Cli. Div. 177. 
 
32 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 
 Art, 15. 
 
 The rule in Kendall v. Hamilton does not affect the- 
 position of a surety for a partner's debt, for he does not 
 merely stand in the creditor's place as against the principal 
 debtor, but has further distinct rights.^ 
 
 And the rule of course does not affect such liabilities of 
 partners as are on the special facts both joint and several. 
 
 For example, where partners have joined in a breach of 
 trust there are separate causes of action as well as a joint 
 one, and a judgment against the partners jointly does not 
 of itself bar subsequent proceedings against their separate 
 estates.^ 
 
 Where judgment has been recovered against one partner,, 
 sued in the firm-name, on bills given in the firm-name for 
 the price of goods sold, this judgment, though unsatisfied, 
 is a bar to a subsequent action against the other partner for 
 the price of the goods, the cause of action being sub- 
 stantially the same.^ 
 
 Liabilities of 
 outgoing- and 
 incoming 
 partners. 
 
 15. A partner wlio retires from a firm, or 
 the estate of a partner who dies, does not 
 thereby cease to be liable for partnership debts 
 contracted before his retirement or death,* and 
 a person who is admitted as a partner into an 
 existing firm does not thereby become liable to 
 the creditors of the firm for anything done 
 before he became a partner:® but a retiring 
 partner may be discharged from any existing 
 liabilities, and an incoming partner may become 
 
 1 Badeley v. Consolidahd Bank (1886), 34 Ch. D. 536, 556. 
 = Re Davison, Ex parte Chandler (188-1), 13 Q. B. D. 50. 
 •< Camhefort .f- Co. t. Chapman (1887), 19 Q. B. D. 229. 
 " Lindley, i. 439, 44J. 
 » lb. 389 ; I. C. A. 249. 
 
LIABILITY AND AUTHORITY. 33 
 
 subject thereto, by an agreement to that effect chap. iv. 
 between the members of the new firm and the 
 
 creditor. 
 
 Such agreement as last aforesaid may be 
 either express or inferred as a fact from the 
 course of deahng between the creditors and the 
 new firm.' 
 
 Illustrations. 
 
 1. A., B. and C. are partners. D. is a creditor of the firm. 
 
 A. retires from tke firm, and B. and C, either alone or 
 together with a new partner, E., take upon themselves the 
 liabilities of the old firm. This alone does not afltect D.'s 
 right to obtain payment from A., B. and C, or A.'s liability 
 toD. 
 
 2. A partnership firm, consisting of A., B. and C, enters 
 into a continuing contract with D., which is to run over a 
 period of three years. After one year A. retires from the 
 firm, tating a covenant from B. and C. to indemnify him 
 against all liabilities under the contract. D. knows of A.'s 
 retirement. A. remains liable to D. under the contract, and 
 is bound by everything duly done under it by B. and C. after 
 Lis retirement from the firm.^ 
 
 3. A., B. and C. are bankers in partnership. A. dies, and 
 
 B. and C. continue the business. D., E. and E., customers of 
 the bank at the time of A.'s death, continue to deal with the 
 bank in the usual way after they know of A.'s death. The 
 firm afterwards becomes insolvent. A.'s estate remains liable 
 to D., E. and E. for the balances due to them respectively at 
 the time of A.'s death, less any sums subsequently drawn 
 out.^ 
 
 ' Lindley, i. 443. 
 
 ^ Oakford v. European and American Steam. Shipping Company 
 (1863), 1 H. & M. 182, 191. See also Swire v. Redman (1876), 1 
 Q. B. D. 536. 
 
 3 Devaynea Y.Noble, Sleech's Case (1816), 1 Mer. 539, 569; Clayton's 
 Case (1816), ib. 572, 604. 
 
 P. J) 
 
34 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. In tte last case put, one customer, D., discovers that 
 
 ■^'^*- ^^- securities held by the bank for him have been sold without 
 his authority in A.'s lifetime. Here A.'s estate is not dis- 
 charged from being liable to make good the loss, for the 
 additional reason that D. could not elect to discharge it from 
 this particular liability before he knew of the wrongful sale.' 
 
 4. A. and B. are bankers in partnership. C. and D. are 
 admitted as new partners, of which notice is given by circular 
 to all the customers of the bank. A short time afterwards 
 A. dies. Two years later B. dies, and the business is still 
 continued under the same firm. The bank gets into difficulties, 
 and at last stops payment. Depositors in the bank whose 
 deposits were prior to A.'s death, and who knew of his death, 
 and continued to receive interest on their deposits from the 
 new partners, and have proved in the bankruptcy of C. and D. 
 for the amount of their deposits, cannot now claim against A.'s 
 estate, for their conduct amounts to an acceptance of the 
 liability of the new partners alone.^ 
 
 5. A. and B. are partners. F. is a creditor of the firm. 
 A. and B. take C. into partnership. C. brings in no capital. 
 The assets and liabilities of the old firm are, by the consent 
 of all the partners — but without any express provision in the 
 new deed of partnership — transferred to and assumed by the 
 new firm. The accounts are continued in the old books as if 
 no change had taken place, and existing liabilities, including 
 a portion of F.'s debt, are paid indiscriminately out of the 
 blended assets of the old and the new firm. F. continues his 
 dealings with the new firm on the same footing as with the 
 old, knowing of the change and treating the partners in the 
 new firm as his debtors. The new firm of A., B. and C. is 
 liable to F.=' 
 
 6: A. and B. are partners. A. retires, and B. takes C. into 
 partnership, continuing the old firm-name. A customer who 
 deals with the firm after this change, and without notice of it, 
 may sue at his election A. and B., or B. and C, but he cannot 
 sue A., B. and C. jointly, nor sue A. after suing B. and C* 
 
 1 Clayton's Case (1816), 1 Mer. oT9. 
 
 - Bilborowjli v. Holmes (1876), 5 Ch. D. 255. 
 
 = Rolfe V. Flower (1865), L. E, 1 P. C. 27. 
 
 ^ Scarf y. Jardine (1882), (H. L.) 7 App. Ca. 345. 
 
LI A BIL IT Y AND A UTHORITT. 35 
 
 To determine whether an incomino; partner has hecome Chap. iv. 
 
 . Art. 15. 
 
 liable to an existing creditor of the firm, two questions 
 
 T , -i -J J Test of lia- 
 
 have to be considered : — i,mty of new 
 
 1st. Whether the new firm has assumed the liability to fi'^™- 
 pay the debt. 
 
 2nd. Whether the creditor has agreed to accept the new 
 firm as his debtors, and to discharge the old partnership 
 from its liability.^ 
 
 Novation is the technical name for the contract of substi- Novation. 
 iuted liability, which is, of course, not confined to cases of 
 partnership. As between the incoming partner and the 
 ■creditor, the consideration for the undertaking of the 
 liability is the change of the creditor's existing rights. 
 
 An agreement between the old partners and the incoming Mere agroe- 
 partner that he shall be liable for existing debts will not of partners can- 
 itself give the creditors of the firm any right against him; "otiTtion!'^ '''* 
 ior it is a general rule that not even the express intention 
 of the parties to a contract can enable a third person for 
 whose benefit it was made to enforce it.^ An incoming 
 3)artner is liable, however, for new debts arising out of a 
 •continuing contract made by the firm before he joined it ; 
 as where the old firm had given a continuing order for the 
 supply of a particular kind of goods. ^ 
 
 There is in law nothing to prevent a firm from stipula- 
 ting with any creditor from the beginning that he shall 
 look only to the members of the firm for the time being ; 
 the term nocation, however, is not properly applicable to 
 such a case.* 
 
 1 Rdfe V. Flower (1865), L. E. 1 P. C. at p. 38. 
 
 "- Principles of Contraot, 201. 
 
 s Lindley, i. 391. 
 
 * This is involved in IlorVs Case and Orainh Case (18Yo), 1 Ch. 
 
 d2 
 
36 TEE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 16. Each partner who does any act necessary 
 
 Art. 16. , - . p^ 
 
 for or usually done m carrying on business oi 
 
 Power of •' n !■ ^ • ^ ^ • 
 
 iiartner to the kind Carried on by the firm oi which he is. 
 
 bind the firm. 
 
 a member, binds his partners to the same extent. 
 as if he were their agent duly appointed for 
 that purpose ; ^ unless he has in fact no 
 authority to act for the firm in the particular 
 matter, and is not known to the person with 
 whom he is dealing to be a partner.^ 
 
 " Generally speaking, a partner has full authority to> 
 deal with the partnership property for partnership pur- 
 poses."" 
 
 " Ordinary partnerships are by the law assumed and 
 presumed to be based on the mutual trust and confidence 
 of each partner in the skill, knowledge, and integrity of 
 every other partner. As between the partners and the- 
 outside world (whatever may be their private arrange- 
 ments between themselves), each partner is the unlimited 
 agent of every other in every matter connected with the 
 partnership business, or which he represents as partnership 
 business, and not being in its nature bej'ond the scope of 
 the partnership."* 
 Except where The exception in the event of the partner having na 
 
 Div. 307, wliere the deed of settlement of an insurance company- 
 contained a power t(i transfer the business and liabilities, and a. 
 transfer made under that power was decided to be binding on the 
 policy holders. As to the misuse of the term novation, see per 
 James, L. J,, at p. 322. 
 
 ' Slightly altered from I. C. A. 2j1; see Lindley, i. 236. 
 
 = Lindley, i. 237. 
 
 ^ LordWostbury in£x;)a)7f Darlington, &c. Banking Co. (ISG-i), 
 4D. J. S. JSl, o.S.). 
 
 * James, L. J., in Eaird's Case (1870), 5 Ch. at p. 733. 
 
LIABILITY AND AVTHORITT. 37 
 
 -authority, and also not appearing to the other party to Chap. iv. 
 have it, is not established by any direct decision. But it 
 
 was said in a recent case by Cleasby, B., that partnership ^^renTnor" 
 •does not always, and especially does not in these circum- "^f^l autho- 
 "stances, imply mutual agency. 
 
 " In the common case of a partnership, where by the 
 terms of the partnership all the capital is supplied by A., 
 and the business is to be carried on by B. and C, in their 
 own names, it being a stipulation in the contract that A. 
 shall not appear in the business or interfere in its man- 
 agement ; that he shall neither buy nor sell, nor draw nor 
 accept bills ; no one would say that as among themselves 
 there was any agency of each one for the others. If, 
 indeed, a mere dormant partner were known to be a 
 partner, and the limitation of his authority were not 
 known, he might be able to draw bills and give orders for 
 goods which would bind his co-partners, but in the ordi- 
 nary case this would not be so, and he would not in the 
 slightest degree be in the position of an agent for them." ^ 
 
 The acts of a partner done in the name of a firm will What kind of 
 not bind the firm merely because they are convenient, or biud the firm, 
 prudent, or even necessary for the particular occasion. 
 The question is, what is necessary for the usual conduct of 
 the partnership business ; that is the limit of each partner's 
 general authority : he is the general agent of the firm, but 
 he is no more. " A power to do what is usual does not 
 include a power to do what is unusual, however urgent."^ 
 
 Whether a particular act is " necessary to the trans- 
 action of a business in the way in which it is usually 
 carried on" is a question "to be determined by the nature 
 
 ' Cleasby, B., in Holme v. Hammond (1872), L. E. 1 Ex. at, 
 :p. 233. 
 
 - Lindley, i. 238. 
 
38 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 
 Art. 17. 
 
 of the business, and by the practice of persons engaged in 
 it."^ This must once have been a question of fact in all 
 cases, as it still would be in a new case. But as to a 
 certain number of frequent and important transactions, 
 there are well understood usages extending to all trading- 
 loartnerships, and now constantly recognized by the Court ; 
 these have become in effect rules of law, and it seems best 
 to give them as such, and this we proceed to do. In other 
 words, there are many kinds of business in which it is so 
 notoriously needful or useful to issue negotiable instru- 
 ments, borrow money, and so following, in the ordinary 
 course of affairs, that the existence or vaKdity of the usage 
 is no longer a question of fact. But there is no authori- 
 tative list or definition of the kinds of business which are 
 "trades" in this sense. Thus it is hardly possible to- 
 frame a statement which shall be quite satisfactory in 
 form. 
 
 Implied au- 
 thority of 
 partners in 
 trade as to 
 certain trans- 
 actions. 
 
 17. Subject to the limitations expressed in 
 the three next following articles, every partner- 
 may bind the firm by any of the following acts : 
 
 a. He may sell any goods or personal chattels 
 of the firm. 
 
 h. He may purchase on account of the firm 
 any goods of a kind necessary for or usually 
 employed in the business carried on by it. 
 
 c. He may receive payment of debts due to- 
 the firm, and give receipts or releases for them. 
 
 d. He may engage servants for the partner- 
 ship business. 
 
 ' Lindley, i. 239. 
 
LIABILITY AND AUTHORITY. 39 
 
 If the partnership is in trade, every partner ^Y^'}7- 
 
 may also bind the firm by any of the following 
 
 acts: 
 
 e. He may accept, make, and issue bills and 
 other negotiable instruments in the name of the 
 firm.' 
 
 /. He may borrow money on the credit of 
 the firm. 
 
 g. He may for that purpose pledge any goods 
 or personal chattels belonging to the firm. 
 
 h. He may [probably] for the like purpose 
 make an equitable mortgage by deposit of 
 deeds or otherwise of real estate or chattels 
 real belonging to the firm. 
 
 The general powers of partners as agents of the firm 
 are summed up hy Story in a passage which has been 
 adopted by the Judicial Committee of the Privy Coun- 
 cil: 2— 
 
 " Every partner is in contemplation of law the general 
 and accredited agent of the partnership, or as it is some- 
 times expressed, each partner is prcepositus negotiis societaiis, 
 and may consequently bind all the other partners by his 
 
 1 Cp. the Bills of Exchange Act, 1882, s. 23, and Chalmers' 
 Digest of the Law of Bills of Exchange, 3rd ed., p. 59 sqq. Where 
 the firm name is also the name of an individual member of the firm 
 ■who does not carry on any separate business, a bill of exchange, 
 drawn, accepted, or indorsed in that name is presumed to be a 
 partnership bill, and if the other partners are sued on it the burthen 
 of proof is on them to show that the name was signed as that of the 
 individual partner and not as that of the firm : Yorkshire Banking 
 Co. V. Beaison (1880), 5 C. P. Div. 109, 121. 
 
 ^ Story on Agency, § 124; Bank of Australasia y. Breillat (1847), 
 6 Moo. P. 0. at p. 193. 
 
40 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 
 Art. 17. 
 
 acts in all matters whicli are within the scope and objects 
 of the partnership. Hence, if the partnership be of a 
 general commercial nature, he may pledge or sell the 
 partnership property ; he may buy goods on account of the 
 partnership ; he may borrow money, contract debts, and 
 pay debts on account of the partnership ; he may draw, 
 make, sign, indorse, accept, transfer, negotiate, and pro- 
 cure to be discounted promissory notes, bills of exchange, 
 cheques and other negotiable paper in the name and on 
 account of the partnership." 
 
 The particular transactions in which the power of a 
 partner to bind the firm has been called in question, and 
 either upheld or disallowed, are exhaustively considered by 
 Lord Justice Lindley (i. 264 — 297). A certain number of 
 the leading heads may here be selected by way of illustra- 
 tion. The distinction between the powers of partners in 
 trading and non-trading firms is perhaps not quite clear on 
 the authorities, but it is believed that the existing practice 
 and understanding are correctly represented by the state- 
 ment in the text. 
 
 Negotiable 
 instruments. 
 
 Authority to bind the Finn implied. 
 
 The power of binding the firm by negotiable instruments 
 is one of the most frequent and important. 
 
 In trading partnerships every partner has this power 
 
 unless specially restrained by agreement.^ In the case of 
 
 a non-trading partnership those who seek to hold the firm 
 
 bound must prove that such a course of dealing is necessary 
 
 Exception as or usual in the particular business. In the case, again, of 
 
 1 Lindley, i. 2G6, Bank of Australasia v. Breillat (1841), 6 Moo. 
 P. 0. at p. IW; Ex. parte Darlington, &<:. Banking Company (1864), 
 4 D. J. S. at p. 585. Brokers and commission agents are not traders 
 within the meaning of this rule, Yates v. Dalion (1858), 28 L. J 
 Ex. 69. 
 
LIABILITY AND AUTHORITY. 41 
 
 an association " too numerous to act in the way that an chap. iv. 
 
 Art 17 
 ■ordinary partnership does,"^ whose affairs are under the 
 
 exclusive management of a small number of its members — *° du-eotors of 
 
 o numerous 
 
 in other words, an unincorporated company — the presump- associations. 
 "tion of authority does not exist either for this purpose or 
 in the other cases where partners have in general an 
 implied authority ; for the ordinary authority of a partner 
 is founded on the mutual confidence involved, in ordinary 
 oases, in the contract of partnership ; and this confidence 
 is excluded when the members of the association are 
 personally unknown to one another. 
 
 In such a case those who are mere shareholders have no 
 power at all to bind the rest, and the directors or manag- 
 ing members have no more than has been conferred on 
 them expressly or by necessary implication in the consti- 
 tution of the particular society.^ But since the Com- 
 panies Acts this rule is not likely to have much practical 
 application. 
 
 It seems indeed a not untenable suggestion that the 
 fixing of the number of twenty by the Companies Act, 
 1862, as the superior limit of an ordinary partnership 
 must be taken as a legislative declaration that no smaller 
 number can be considered " too numerous to act in the 
 way that an ordinary partnership does." The general 
 tiim and policy of the Act, it might be urged, was to leave 
 no middle term between an ordinary partnership and a 
 company regularly formed under the Act. In point of 
 -fact, however, associations of seven or more persons who 
 do not mean to act as partners in the ordinary sense will 
 almost always seek to be registered as limited companies ; 
 and the question here started is perhaps merely curious. 
 
 1 3 D. M. G. 477 (1854). 
 
 2 Dickinson v. Valpy (1829), 10 B. & 0. 128, and other authorities 
 referred to in Lindley, i. 267 ; Principles of Contract, 129. 
 
42 
 
 TEE CONTRACT OF PAETNEE8HIF. 
 
 Chap. IV. 
 Art. 17. 
 
 Borrowing 
 money. 
 
 Sale and 
 pledge of 
 pai-tnership 
 property. 
 
 Purohase. 
 
 Every partner in a trading firm has an implied autho- 
 rity to borrow money for the purposes of the business on 
 the credit of the firm.i The directors of a numerous, 
 association, according to the rule above explained, have no 
 such authority beyond what may have been specially 
 committed to them.^ 
 
 Every partner has implied authority to dispose, either by 
 way of sale or (where he has power to borrow on the credit 
 of the firm) by way of pledge, of any part of the goods or 
 personal property belonging to the partnership,^ unless it 
 is known to the lender or purchaser that it is the intention 
 of the partner offering to dispose of partnership property 
 to apply the proceeds to his own use instead of accounting 
 for them to the firm.* 
 
 A partner having power to borrow on the credit of the 
 firm may probably give a valid equitable security, by 
 deposit of deeds or otherwise, over any real estate of the- 
 partnership.^ 
 
 But a legal conveyance, whether by way of mortgage or 
 otherwise, of real estate or chattels real of the firm, cannot 
 be given except by all the partners, or with their express 
 authority given by deed.' 
 
 A partner may buy on the credit of the firm any goods 
 of a kind used in its business, and the firm wUl be bound,, 
 notwithstanding any subsequent misapplication of them by 
 that partner.'' This power extends to non- trading partner- 
 ships.' 
 
 1 Banh of Australasia v. Breillat (18-17), G Moo. P. C. lo2, 194. 
 
 "- Burmester v. Xorris (ISol), 6 Ex. 796 ; 21 L. J. Exch. 43. 
 
 ' Lindley, i. 295. 
 
 * Ex parte Bonhonus (1803), 8 Ves. 540. 
 
 » Lindley, i. 278, 284. 
 
 Bond V. Gibson (1808), 1 Camp. 185. 
 
 ' Lindley, i. 291. 
 
LIABILITY AND AUTHOBITY. 43; 
 
 Payment to one partner is a good payment to the firm,^ Chap. IV. 
 
 Art 17 
 
 and by parity of reason a release by one partner binds the 
 
 firm, " because, as a debtor may lawfully pay his debt to andreiease°by 
 one of them, he ought also to be able to obtain a discharge °^s partner. 
 upon payment."^ 
 
 " One partner has implied authority to hire servants to Servants. 
 perform the business of the partnership," and probably 
 also to discharge them if the other partners do not object.^ 
 
 Authority to hind the Firm not implied. 
 
 One partner cannot bind the others by deed without ex- Deeds, 
 press authority (which must itself be under seal),* and 
 where the partnership articles are under seal, the fact of 
 their beiug so does not of itself confer ,any authority for 
 this purpose.^ 
 
 One partner cannot bind the others by giving a guaranty Guaranties.. 
 in the name of the firm, even if the act is in itself a reason- 
 able and convenient one for effecting the purposes of the 
 partnership business, unless such is the usage of that par- 
 ticular firm, or the general usage of other firms engaged in 
 the like business : ^ in other words, there is no general im- 
 plied authority for one partner to bind the firm by guaranty, 
 but agreement may confer such authority as to a particular 
 firm, or custom as to all firms engaged in a particular 
 business. In the latter case, however, the force of the 
 custom really depends on a presumed agreement among 
 the partners that the business shall be conducted in the 
 usual and customary manner. 
 
 ' Lindley, i. 215. 
 
 ^ Best, C. J., in Stead v. Salt (1825), 3 Bing. at p. 103. 
 
 2 Lindley, i. 296. 
 
 « Steiglitz v. Egginton (1815), Holt, N. P. 141. 
 
 5 Harrison v. Jackson (1797), 7 T. E. 207. 
 
 « BretUl V. Williams (1849), 4 Ex. 623; 19 L. J. Ex. 121. 
 
44 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 
 Art. 17a. 
 
 Submission to 
 arbitration. 
 
 Limited 
 power of 
 managers in 
 numerous 
 partnerships. 
 
 Partner using 
 ■credit of firm 
 for private 
 purposes. 
 
 It is not competent to one member of a partnership to 
 bind the firm by a submission to arbitration.^ 
 
 [17a. Where the members of a partnership 
 are too numerous to act as partners in the 
 ordinary way, and it is provided by the con- 
 stitution of the partnership that its affairs shall 
 be conducted and controlled only by a limited 
 niimber of its members (hereinafter called di- 
 rectors), there no members of tlie partnership, 
 not being directors, can bind the others by their 
 acts, and the directors can bind the others only 
 vpithin the scope of the authority conferred on 
 them expressly or by necessary implication in 
 the constitution of the partnership.^]] 
 
 Apart from the Companies Acts, this is undoubted law ; 
 but, as above suggested, it is perhaps doubtful whether an 
 association of this kind would now be recognized as differ- 
 ing in any respect from an ordinary partnership. 
 
 18. Where one partner pledges the credit of 
 the firm for a purpose apparently not connected 
 with the partnership affairs, whether the trans- 
 action itself is or is not of a class within his 
 apparent general authority, the firm is not 
 bound, unless he is in fact specially authorized 
 by the other partners [or, perhaps, unless the 
 party dealing with him had reasonable ground 
 for believing him to be so authorized.] 
 
 ' stead V. Salt (1S2J), 3 Bing. 101. 
 = See Note 2, p. 41, above. 
 
LIABILITY AND AUTHORITY. 45 
 
 The passage already partly cited from Story (Art. 17, Chap. iv. 
 p. 39, above) continues as follows : '- — ^ - 
 
 " The restrictions of this implied authority of partners 
 to hind the partnership are apparent from what has heen 
 already stated. Each partner is an agent only in and for 
 the business of the firm ; and therefore his acts beyond that 
 business will not bind the firm. Neither will his acts done 
 in violation of his duty to the firm bind it when the other 
 party to the transaction is cognizant of or co-operates in 
 such breach of duty."^ 
 
 Persons who "have notice or reason to believe that the 
 thing done in the partnership name is done for the private 
 purposes or on the separate account of the partner doing 
 it,"^ cannot say that they were misled by his apparent 
 general authority. Por his authority presumably exists 
 for the benefit and for the purposes of the firm, not for 
 those of its individual members. The commonest case, 
 indeed the only case at all common, to which this principle 
 has to be applied, is that of one partner giving negotiable 
 instruments or other security in the name of the firm to 
 raise money (to the knowledge of the person advancing it) 
 for his private purposes or for the satisfaction of his private 
 debt.3 
 
 " The unexplained fact that a partnership security has 
 been received from one of the partners in discharge of a 
 separate claim against himself is a badge of fraud, or of 
 such palpable negligence as amounts to fraud, which it is 
 
 1 Story on Agency, § 125 ; Bank of Australasia v. Breillat (1847), 
 6 Moo. P. 0. at p. 194. 
 
 2 Ex parte Darlington, &c. Banldng Co. (1864), 4 D. J. S. at p. 
 585. 
 
 3 See the cases referred to in the next note, and Heillut v. Nevill 
 (1869—70), L. E. 4 0. P. 354, in Ex. Oh. 5 C. P. 478. 
 
46 
 
 THE CONTBACT OF PARTNERSHIP. 
 
 Chap. IV. 
 Art. 18. 
 
 Whether the 
 creditor may 
 be entitled as 
 against the 
 firm by 
 reasonable 
 belief in the 
 partner's 
 ■authority. 
 
 incumbent on the party who so took the security to remove, 
 by showing either that the partner from whom he received 
 it acted under the authority of the rest, or at least that he 
 himself had reason to believe so." ^ 
 
 " If a person lends money to a partner for purposes for 
 which he has no authority to borrow it on behalf of the 
 partnership, the lender having notice of that want of 
 authority cannot sue the firm." ^ 
 
 " When a separate creditor of one partner knows he has 
 received money out of partnership funds, he must know at 
 the same time that the partner so paying him is exceeding 
 the authority implied in the partnership — that he is going 
 beyond the scope of his agency; and express authority 
 therefore is necessary from the other partner to warrant 
 that payment."^ 
 
 It is doubtful whether a separate creditor thus taking 
 partnership securities or funds from one partner is justified 
 even by having reasonable cause to believe in the existence 
 of a special authority ; the opinion has been expressed by 
 Cockburn, C. J., that he deals with him altogether at his 
 own peril.* But it may happen that the other partner 
 whom the separate creditor seeks to bind has so conducted 
 himself as to give reasonable ground for supposing there 
 is authority ; and where he has done so, he may be bound 
 
 1 Smith, Merc. Law, -13 (9th. ed.), adopted by Keating and 
 Byles, JJ., in Leviesoii v. Lane (1862), 13 C. B. N. S. 278 ; 32 L. J. 
 C. P. 10; by Lord Westbury, in Ex parte Darlington, ifcc. Banking 
 Co. (1864), 4 D. J. S. at p. 58o ; and by Cockburn, C.J. (subject to 
 a doubt as to the last -svords, see below), in Kendal v. Wood (1871), 
 (Ex. Cb.) L. E. G Ex. at p. 248. 
 
 ■ Bank cf Austnihtsia v. Breillat (1847), 6 Moo. P. C. at p. 196. 
 
 3 Montague Smith, J., in Kendal v. Wood (1871), L. E. 6 Ex. at 
 p. 2:)3. 
 
 * L. E. G Ex. 248. 
 
LIABILITY AND AUTHORITY. 47 
 
 ■on tke general principle of estoppel. The rule is stated chap. iv. 
 "witli this qualification or warning by Blackburn, J., and " L_. 
 
 Montague Smith, J.^ 
 
 Another special application of the foregoing rule was Instances of 
 made in a case where two out of three partners gave an rujef 
 acceptance in the name of the firm for a debt incurred 
 before the third had entered the partnership. This was 
 held not to bind the new partner, for it was in effect the 
 same thing as an attempt by a single partner to pledge the 
 joint fund for his individual debts.^ 
 
 Again, if a customer of a trading firm stipulates with 
 one of the partners for a special advantage in the conduct 
 of their business with him, for a consideration which is 
 good as between himself and that partner, but of no value 
 to the firm, the firm is not bound by this agreement, and 
 incurs no obligation in respect of any business done in 
 pursuance of it.' 
 
 The same principle applies to the rights of persons 
 "taking negotiable instruments indorsed in the name of the 
 firm. Where a partner authorized to indorse bills in the 
 partnership name and for partnership purposes indorses a 
 Ibill in the name of the firm for his own private purposes, 
 a holder who takes the bill, not knowing the indorsement 
 io be for a purpose foreign to the partnership, can still 
 recover against the other partners, notwithstanding the 
 unauthorized character of the indorsement as between the 
 partners ;* but if he knows that the indorsement is in fact 
 not for a partnership purpose he cannot recover.' 
 
 1 L. E. 6 Ex. at pp. 251, 253. 
 
 ' Shirreffr. WUks (1800), 1 East, 48 ; see per Le Blanc, J. 
 
 3 Bignold v. Waterhouse (1813), 1 M. & S. 255. 
 
 * Lewis V. Reilly (1841), 1 Q. B. 349. 
 
 = Garland v. Jaconib (1873), (Ex. Ch.) L. E. 8 Ex. 216. 
 
48 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. IV. 19. All or any of the partners in a firm may 
 '■ — '■ — ffive notice that the firm will not be bound by 
 
 Efeectof *= 1-1 
 
 notification acts, or bv somo class of acts, done m the name 
 
 that firm will ^ , 
 
 not be bound of the firm bj any one or more of the partners ;. 
 
 partner. and if such partner or partners as last aforesaid 
 
 deal in the name of the firm in any matter 
 comprised in the notice with any person to 
 whose knowledge the notice has come, the firm 
 is not bound thereby. 
 
 Eestriotive It is clear law that if partners agree between themselves. 
 
 inoperative if that the apparent authority of one or more of them shall 
 
 no no e . -^^ restricted, such an agreement is inoperative against 
 persons having no notice of it. 
 
 " Where two or more persons are engaged as partners in 
 an ordinary trade each of them has an implied authority 
 from the others to hind all by contracts entered into accord- 
 ing to the usual course of business in that trade. . . . 
 Partners may stipulate among themselves that some one 
 of them only shall enter into particular contracts, or that 
 as to certain of their contracts none shall be liable except 
 those by whom they axe actually made ; but with such 
 private arrangements third persons dealing with the firm 
 without notice have no concern."^ 
 
 Effect of There are dicta to the effect that a creditor who deals 
 
 notice: semhle, .,i , l s l\, n i_- i_- j 
 
 there must be '^^''h ^ partner as agent oi the firm, having notice of a. 
 
 adistmot restrictive stipulation among the partners themselves, 
 
 cannot hold the firm bound ;- and this view is adopted in 
 
 » Lord Cranwortli, ia Cox v. Hickman (1860), 8 H. L. C. at p. 
 304. 
 
 2 Lord GiiUwai/ v. Mathew (1803), 10 East, 264; Aldersony. Pope^ 
 1 Camp. 404, n. 
 
LIABILITY AND AUTHORITY. 49 
 
 the Indian Contract Act, which enacts (s. 251, Exception) chap. iv. 
 that ^'- ^- 
 
 "If ithasheen agreed hetween the partners that any 
 restriction shall be placed upon the power of any one of 
 them, no act done in contravention of such agreement 
 shall bind the firm with respect to persons having notice 
 of such agreement." 
 
 But it is contested by Lord Justice Lindley, who points 
 out that an agreement between the partners that certain 
 things shall not be done is quite consistent with an inten- 
 tion that if they are done the firm shall nevertheless be 
 answerable. All that the agreement necessarily means is 
 that the transgressing partner shall indemnify the firm, 
 not that the firm shall not be liable. There should be not 
 merely a restriction of authority as between the partners, 
 but a distinct warning to third persons dealing with the 
 firm that if the forbidden acts are done the firm will not 
 answer for them. If a partner tells a third person that he 
 has ceased to be a partner, but his name is to continue in 
 the firm for a certain time, this is not a disclaimer of 
 responsibility, but means that he will be responsible for 
 the debts of the firm contracted during the specified time;^ 
 and the cases seem closely parallel. The undoubted pro- 
 position that no agreement among partners, whether 
 known or not to third persons, can avail to limit the 
 amount of their liability for the debts of the firm, is also to 
 some extent analogous." The rule has been stated in the 
 text above in a form intended to express Lord Justice 
 Lindley's opinion. 
 
 20. An admission made by one partner con- Admissions 
 cerning the partnership affairs is relevant tationsof 
 
 ^ partners. 
 
 ^ Brown v. Leonard (1820), 2 Chitty, 120. 
 2 Lindley, i. 332. 
 
50 THE CONTRACT OF PARTNEBSEIP. 
 
 Chap. IV. against the firm, and a representation made by 
 
 ^ '- — one partner to any person concerning the 
 
 partnership affairs has the same effect as 
 against the firm, and so far as concerns the 
 civil rights and liabilities of the partners, as if 
 it had been made by all the partners.' 
 
 Explanation. — This does not apply to a repre- 
 sentation made by one partner as to the extent 
 of his own authority to bind the firm.^ 
 
 An admissioa made by a partner, though relevant 
 against the firm, is of course not conclusive;' for an 
 admission is not conclusive against the person actually 
 making it. A definition of the term admission, and refer- 
 ences to authorities on this subject, will be found in Mr. 
 Justice Stephen's Digest of the Law of Evidence, Art. 15. 
 Hepresentations, however, may be conclusive by way of 
 estoppel, or under some of the rules of equity which are in 
 truth akin to the legal doctrine of estoppel, and rest on 
 the same principle. 
 
 The qualification of the rule above given by way of 
 explanation is advisedly so given, as not being a real 
 exception. Its necessity is obvious, for otherwise one 
 partner could bind the firm to anything whatever by 
 merely representing himself as authorized to do so. 
 
 21. Notice to one [acting ?] partner of any 
 matter relating to partnership affairs is notice 
 to the firm, cxcejit in the case of a fraud upon 
 
 ' Wichham v. ]Vickluim (18oo), 2 K. & J. 47S, 491. 
 
 = K.r jiarle Aipn-f (179'-'), 2 Cox, 312. 
 
 ' Stead V. Salt (1N20), 3 Bing. at p. 103. 
 
LIABILITY AND AUTHORITY. 51 
 
 the firm committed by or with the consent of chap. rv. 
 
 •' Art. 21. 
 
 that partner.* 
 
 It is doubtful -wliether a firm is to be deemed to have 
 notice of facts known to a partner before he became a 
 member of the firm.^ 
 
 1 Lindley, i. 287 ; Jessel, M. E., in WilliamsonY. Barhour (1877), 
 9 Ch. D. at p. 535 ; cp. Lacey v. Hill (1876), 4 Ch. Div. at p. 549. 
 
 ^ Jessel, M. E., uhisup.: — "It has not, so far as I know, been 
 .teld that notice to a man who afterwards becomes a partner is notice 
 to the firm. It might be so held." 
 
 e2 
 
53 
 
 THE C'ONTBAGT OF PABTNEESHIP. 
 
 CHAPTEE V. 
 
 Chap. V. 
 Art. 22. 
 
 Liability of 
 partners for 
 
 ■VPTOBffS. 
 
 !Fraud, &a. in 
 conduct of 
 partnership 
 business. 
 
 Of the Liability of Partners for Wrongs. 
 
 22. Every partner is liable jointly with his 
 fellow-partners, and also severally, for all sums- 
 and damages which the firm, while he is a 
 partner therein, becomes liable for under 
 either of the two next following articles.^ 
 
 The cases in question are, as will immediately appear, 
 those where a fraud or wrong is committed by one pai-tner 
 in the course of the business of the firm. It has once been 
 held that in a suit to recover from one partner money 
 which had been misapplied by another all the partners 
 were necessary parties ; ^ but this appears to have been a 
 solitary and unconsidered decision, and it has since been 
 expressly dissented from.^ 
 
 23. Where loss or injury is caused to third 
 persons, or penalties incurred, by the wrongful 
 act or omission of any partner acting in the 
 ordinary course of the business of the firm, the 
 firm is liable thei-efor to the same extent as the 
 partner so acting or omitting to act.* 
 
 1 Lindloy, i. 373. 
 
 = Aa-inson v. Machnth (1866), 2 Eq. o'O. 
 ■' rUimrry. Gregory {\8'i), 18 Eq. 621, 627. 
 ^ Lindloy, i. 298. 
 
LIABILITY FOR WRONGS. 53 
 
 Explanation. — For this purpose partner in- chap. v. 
 
 Art. io4. 
 
 eludes an agent or servant of the firm. 
 
 24. Where any money or property of a MieappHoa- 
 
 "' _ •' . ^''^ °^ money 
 
 third person is received by one partner, acting or property 
 
 _ ■■■ . . received for or 
 
 vpithin the scope of his ordinary apparent in custody of 
 authority in partnership affairs, and is mis- 
 applied by that partner,^ and where any money 
 or property of a third person being as such in 
 the custody of the firm is misapplied by any 
 partner,^ the firm is liable to make good the 
 loss. 
 
 Explanation. — Money is deemed to be in the 
 custody of the firm when it has been paid to 
 any agent of the firm, or paid or credited to 
 the account of the firm with any person, in the 
 ordinary course of business, or under such 
 circumstances that a partner using ordinary 
 diligence in the partnership affairs would be 
 aware of such payment or transaction.^ 
 
 Illustrations. 
 
 1. A., B. and C. are partners in a bank, 0. taking no active 
 part in the business. D., a customer of tlie bank, deposits \ 
 securities with, the firm for safe custody, and these securities I 
 are sold by A. and B. -without D.'s authority. The value of 
 the securities is a partnership debt for which the firm is 
 
 1 Blair v. Bromley (1847), 2 Ph. 354. 
 
 = St. Auhyn v. Smart (1868), 3 Ch. 646; Flumer v. Gregory (1874), 
 18 Eq. 621. 
 
 •i Marsh v. Keating (1834), 2 01. & F. 250, 289. It may be 
 ■doubted whether this explanation is really necessary. See note on 
 this case, p. 56, below. 
 
54 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. V. liable to D. ; and C. or Lis estate is liable whether he knew of" 
 ■^''''- ^*- the sale or not.' 
 
 2. A. and B. are solicitors in partnership. C, a client of 
 the firm, hands a sum of money to A. to be. invested on a 
 
 j specific security. A. never invests it, but applies it to his own 
 
 { use. B. receives no part of the money, and knows nothing of 
 
 the transaction. B. is liable to make good the loss, since 
 
 receiving money to be invested on specified securities is part 
 
 of the ordinary business of solicitors.' 
 
 3. If, the other facts being as in the last illustration, C. 
 had given the money to A. with general directions to invest 
 
 i it for him, B. would not be Hable, since it is no part of the 
 ordinary business of solicitors to receive money to be invested 
 at their discretion.' 
 
 4. J. and W. are in partnership as solicitors. P. pays- 
 -<^ £1,300 to J. and W. to be invested on a mortgage of specified 
 
 real estate, and they jointly acknowledge the receipt of it for- 
 that purpose. Afterwards P. hands over £1,700 to"\Y. on his. 
 representation that it will be invested on a mortgage of some 
 real estate of F., another client of the firm, such estate not 
 being specifically described. J. dies, and afterwards both, 
 these sums are fraudulently applied to his own use by W. 
 W. dies, having paid interest to P. on the two sums till within 
 a short time before his death, and his estate is insolvent. J.'s 
 estate is liable to make good to P. the £1,300, with interest 
 from the date when interest was last paid by "W., but not the 
 £1,700/ 
 
 5. A. and B., solicitors in partnership, have by the direction 
 of C, a client, invested money for him on a mortgage, and. 
 have from time to time received the interest for him. A. 
 receives the principal money without directions from C., and 
 without the knowledge of B., and misapplies it. B. is not 
 liable, as it was no part of the firm's business to receive the 
 principal money; but if the money when repaid had been 
 
 ' Devaynes v. Noble, Clayton's Case (181G), 1 Mer. at pp. oTl2, o79^ 
 2 Plair v. Jtromley (1847), 2 Ph. 3o4. 
 
 a Ilarman v. Jvlinson (1853), L> E. >!c B. 61 ; 22 L. J. Q. B. 297. 
 * Phimtr \. Gregory (1874), 18 Eq. 621. 
 
LIABILITT FOR WRONGS. 55 
 
 passed througli the account of the firm, B. would protably be chap. V. 
 liable.^ A'^t. 24. 
 
 6. A., one of the partners in a banking firm, advises B., a 
 customer, to sell certain securities of B.'s wbicli are in the 
 custody of the bank, and to invest the proceeds in another 
 security to be provided by A. B. sells out by the agency of 
 the bank in the usual way, and gives A. a cheque for the 
 money, -which he receives and misapplies without the know- 
 ledge of the other partners. The firm is not liable to make 
 good the loss to B., as it is not part of the ordinary business 
 of bankers to receive money generally for investment.^ 
 
 7. A customer of a banking firm buys stock through the 
 agency of the firm, which is transferred to A., one of the 
 partners, in pursuance of an arrangement between the 
 partners, and with the customer's knowledge and assent, but 
 not at his request. A. sells out this stock without authority, 
 and the proceeds are received by the firm. The firm is liable 
 to make good the loss.^ 
 
 8. A customer of a banking firm deposits with the firm a 
 box containing securities. He afterwards authorizes one of 
 the partners to take out some of these and replace them by 
 certain others. That partner not only makes the changes he 
 is authorized to make in the contents of the box, but makes 
 other changes without authority, and converts the customer's 
 securities to his own use. The firm is not liable to make 
 good the loss, as the separate authority given to one partner 
 by the customer shows that he elected to deal with that part- 
 ner alone and not as agent of the firm.* 
 
 9. A., one of the partners in a bank under the firm of M. 
 and Co., forges a power of attorney from B., a customer of 
 the bank, to himself and the other partners, and thereby 
 procures a transfer of stock standing in B.'s name at the Bank 
 
 ' Sims V. Brutton (1850), 5 Ex. 802 ; 20 L. J. Exch. 41 , as cor- 
 rected by Lord Justice Lindley's criticism, i. 309 ; cp. Cleather v. 
 Twisden (1883), 24 Ch. D. 731 ; Cooper v. Prichard (1883), 11 Q. B. 
 Div. 351. 
 
 ^ Bishop V. Countess of Jersey (1854), 2 Drew. 143. 
 
 ^ Devaynes v. Noble, Baring's Case (1816), 1 Mer. at pp. 611, 614. 
 
 * ExparteEyre (1842), 1 Ph. 227; cp. the remark of James, V.-C, 
 7 Eq. 516(1869).. 
 
56 THE CONTRACT OF PABTNER8HIP. 
 
 Chap. V. of England. Tlie proceeds of tlie stock are credited to M. and 
 ^^^- ^- Co. in their pass-book with another bank, but there is no 
 entry of the transaction in M. and Co.'s own books. The 
 other partners in the firm of M. and Co. are liable to B., 
 because it is part of the ordinary business of bankers "to 
 sell, through their broker, stock belonging to their customers, 
 and to receive and remit the proceeds" [and because they 
 might by the use of ordinary dUigence have known of the 
 payment and from what source it came].' 
 
 10. W. and J. are solicitors in partnership. A., B. and C, 
 clients of the firm, have left moneys representing a fund in 
 which they are interested in the hands of the firm for invest- 
 ment. After some delay a mortgage made to W. alone is, 
 with the consent of A., B. and C, appropriated as a security 
 for this fund. W. realizes the security, and misapplies the 
 money without the knowledge of J. The firm is not liable, 
 as A., B. and C. dealt with "W. not as solicitor but as trustee, 
 and the breach of duty did not happen while the money was 
 in the hands of the finn.^ But if there were facts showing 
 that A., B. and C. dealt with W. as a member of the firm, 
 and the matter of the investment was treated as the business 
 of the firm, the firm would be liable.' 
 
 Ground of The general principle on whicli the firm is held to be 
 
 ^' liable in cases of this class may be expressed in more than 
 
 one form. It may be put on the ground " that the firm 
 has ill the ordinary course of its business obtained posses- 
 sion of the property of other people, and has then parted 
 
 1 Marsh v. Keating (1834), 2 CI. & F. 250, 289 ; see Lord Justice 
 Lindley's note, i. 312, from which, the words in quotation marks are 
 taken. If his comment is right, as it clearly is, one can hardly see 
 what the knowledge or means of knowledge of the partners had to 
 do with it ; but the point is treated as material in the opinion of the 
 judges. The truth is that the rule as above given, by which the 
 ordinary course of business is the primary test of the firm's liabiHty, 
 was developed only by later decisions. 
 
 '^ Coomer v. Bromley (18j2), 5 De G. & Sm. 532 ; and see a fuller 
 account of the case in Lindley, i. 310. 
 
 3 Cleather v. Twiaden (1883), 24 Ch. D. 731. 
 
LIABILITY FOR WRONGS. 57 
 
 "with it without their authority ; " ^ or the analogy to other Chap. v. 
 
 Art 24 
 
 cases where the act of one partner binds the firm may be '. — '. — 
 
 ) 
 
 brought out by saying that the firm is to make compensa- 
 tion for the wrong of the defaulting partner, because the 
 other members " held him out to the world as a person for ( 
 •whom they were responsible."^ 
 
 The rule given in Art. 23 is in fact only a special case Greneral test 
 of the wider rule to the same effect which is one of the of agency, 
 most familiar and important parts of the law of agency. 
 The question is always whether the wrong-doer was acting 
 as the agent of the firm and within the apparent scope of 
 his agency. If the wrong is extraneous to the course of 
 the partnership business, the other partners are no more 
 liable than any other principal would be for the unautho- 
 rized act of his agent in a like case. The proposition that 
 a principal is not liable for the wilful trespass or wrong of 
 his agent is for most purposes suificiently correct ; but a 
 more exact statement of the rule would be that the prin- 
 cipal is not liable if the agent goes out of his way to 
 commit a wrong, whether with a wrongful intention or 
 not. On the one hand, the principal may be liable for a 
 manifest and wilful wrong if committed by the agent in 
 the course of his employment, and for the purpose of 
 serving the principal's iaterest in the matter in hand ;^ he 
 is also liable for trespass committed by the agent under a 
 mistake of fact, such that, if the facts had been as the agent 
 supposed, the act done would have been not only lawful 
 in itself, but within the scope of his lawful authority : * on 
 
 ' Lindley, i. 306. 
 
 " Per James, Y.-C, in Earl of Dundonaldy. Masierman (1869), 7 
 JEq. at p. 517. 
 
 2 Limpus V. General Omnibus Co. (Ex. Ci. 1862), 1 H. & 0. 526. 
 
 * Bayley y. Manchester, &c. Railway Co. (Ex. Ch. 1873), L. E. 8 
 C. P. 148. 
 
58 THE .CONTRACT OF PARTNERSHIP. 
 
 Chap. V. the other hand, he is not liable for acts outside the agent's 
 ^^^' ^^' employment, though done in good faith and with a view 
 
 to serve the principal's interest.' 
 Special cases Cases to which it has been sought, ^\iil\ or -s^ithout 
 
 of misapplica- . . t . i, 
 
 tion of client's success, to apply the principle stated in Art. J4 nave 
 partner. ^ °^'^ generally arisen in the f oUoT^ing manner. Some client of 
 a firm of solicitors or hankers, reposing special confidence 
 in one member of the firm, has intrusted him with money 
 for investment : this has sometimes appeared in a regular- 
 course in the accounts of the firm, sometimes not. Then 
 I the money has been misapplied by the particular partner 
 j in qu.estion. "When it is sought to charge the firm mth 
 L making it good, it becomes important to determine whether 
 the original transaction with the defaulting partner was in 
 fact a partnership transaction, and if it was so, whether the- 
 duty of the firm was not determined before the default. 
 The illustrations above given will show better than any 
 further comments of a general kind how these questions are- 
 dealt with in practice. 
 
 Improper 25. If a partner, being a trustee, improperly 
 
 of trust emplo3'S trust moneys in the business or on tlie 
 
 1 PouUon\. L. & &. W. R. Go. (1867), L. E. 2 Q. B. 534; Allen v. 
 L. tfc 8. W. R. Co. (1870), L. E. 6 Q. B. 65; BoUngbrokey. Swindon 
 Local'Board (1874), L. E. 9 C. P. 575. It is by -no means easy to 
 assign the true ground of an employer's liability for his servant's 
 unauthorized or even forbidden acts and defaults. Perhaps the 
 master's duty is best understood if regarded not as arising from the 
 relation of principal and agent, but as a general duty to see that 
 his business is conducted -witli reasonable cure for the safety of 
 other i^eople, analogous to the duty imposed on o-wners of real pro- 
 perty to keep it in a safe condition as regards persons la-wfully 
 passing on the high-way, or coming on the property itself by the 
 Q-wner's invitation. This vie-w, -which I have endeavoured else-whera 
 to defend, has more distinct countenance from both English and 
 American authority than might be expected. But the subject is toa 
 largo to d-noll upon hero. 
 
LIABILITY FOR WRONGS. 50 
 
 the partnership, no other partner is 
 liable therefor to the persons beneficially inte- 
 
 account of the partnership, no other partner is chap. v. 
 
 Art. 25. 
 
 in moneys for 
 
 rested/ unless he either knew of the breach of partnership 
 trust or with reasonable diligence might have \ 
 known it. 
 
 In either of the last-mentioned cases the 
 partners having such knowledge or means of 
 knowledge as aforesaid are jointly and seve- 
 rally liable for the breach of trust.^ ^ 
 
 This article is inserted liere for conyenience, Lut does not Liability of 
 properly belong to the law of partnership. For, since only breach of 
 those partners are liable who are personally implicated in n^^reaUyT 
 the breach of trust by theu' own knowledge or culpable partnershiiD. 
 ignorance, it can hardly be said that the firm is liable, or 
 that the indiYidual partners are liable as partnets. They 
 are only joint wrong-doers, to whom the fact of their being 
 in partnership has furnished an occasion of wrong-doing. 
 The case is not reaUy analogous to that of money being 
 received in a usual course on the credit of the partnership ) 
 and misapphed : as may be seen by putting the stronger ; 
 case of all the partners robbing a customer in the shop, or 
 cheating him in some matter unconnected mth the busi- 
 ness, and crediting the firm with the money taken from 
 him. Here it is obvious that the relation of partnership is 
 not a material element in the resulting liability. Some- 
 thing will be said in another j)lace, however (on Art. 62, 
 
 ' We still want a convenient term of art to replace the harsh and 
 cumbrous cestui que trust. Trustor -was long ago suggested by- 
 Mr. Humphreys, but it has not found favour, perhaps because it 
 might be taken for the creator of the trust rather than the person 
 having the benefit of it. The Indian Trusts Act has adopted 
 "beneficiary."' 
 
 « Lindley, i. 311. 
 
■60 THE CONTRACT OF PAETNERSHIP. 
 
 Chap. V. below), of a special kind of claims against partners as 
 
 '- — '- — trustees or executors of a deceased partner wMcli have often 
 
 raised difficult and complicated questions. 
 
 Compare the Indian Trusts Act, 1882, s. 67: "If a part- 
 ner, being a trustee, wrongfully employs trust-property in 
 the business or on the account of the partnership, no other 
 partner is liable therefor in bis personal capacity to the 
 beneficiaries, unless he had notice of the breach of trust." 
 By the interpretation clause, s. 3, "a person is said to have 
 notice of a fact either when he actually knows that fact or 
 when, but for wilful abstention from inquiry or gross negli- 
 gence, he would have known it, or when information of the 
 fact is given to or obtained by his agent under the circum- 
 stances mentioned in the Indian Contract Act, 1872, s. 229 " 
 {i. e. in the course of the business transacted by bim for the 
 principal). 
 
MUTUAL RELATIONS. 61 
 
 CHAPTEE YI. 
 
 Of the Relations of Partners to One Another. 
 26. Where the mutual ri^lits and duties of <'?^p- Y^- 
 
 ^ Art. 26. 
 
 Terms of 
 
 partners have been determined by a special 
 contract between them, the contract may be partnersUp 
 
 ' *' may be varied 
 
 rescinded or varied by the consent of all the °t^j ^r con- 
 
 •' sent of all 
 
 partners, but not otherwise. partners. 
 
 Such consent may either be expressed or 
 inferred from an uniform course of dealing.^ 
 
 Illustrations. 
 1. It is agreed between partners that no one of them, shall 
 draw or accept bills in his own name without the concurrence 
 of the others. Afterwards they habitually permit one of 
 
 1 Slightly altered from I. 0. A. 252 ; Const v. Harris (1824), 
 Turn. & E. 496, 517 ; Lindley, ii. 820. "With respect to a partner- 
 ship agreement, it is to be observed, that all parties being competent 
 to act as they please, they may put an end to or vary it at any 
 moment; a partnership agreement is therefore open to variation 
 from day to day, and the terms of such variations may not only be 
 evidenced by writing, but also by the conduct of the parties in 
 relation to the agreement and to their mode of conducting their 
 business: when, therefore, there is a variation and alteration of the 
 terms of a partnership, it does not follow that there was not a 
 binding agreement at first. Partners, if they please, may, in the 
 course of the partnership, daily come to a new arrangement for the 
 purpose of having some addition or alteration in the terms on 
 which they carry on business, provided those additions or altera- 
 tions be made with the unanimous concurrence of all the part- 
 ners": Lord Langdale, 'ii..'R.,m. EnglandY. Curling [ISH), 8 Beav. 
 129, 133. 
 
'62 TEE CONTRACT OF PAUTNERSHIP. 
 
 Chap. VI. them, to draw and accept bills ia the name of the firm without 
 ^ • such concurrence. This course of dealing shows a common 
 
 consent to vary the terms of the original contract in that 
 respect.' 
 
 2. Articles of partnership provide that a valuation of the 
 partnership property shall he made on the annual account 
 day for the purpose of settling the partnership accounts. The 
 valuation is constantly made in a particular way for the space 
 of many years, and acted upon hy all the partners for the 
 time being. The mode of valuation thus adopted cannot after 
 this course of dealing be disputed by any partner or his repre- 
 sentatives, though no particular mode of valuation is pre- 
 scribed by the partnership events, or even if the mode 
 adopted is inconsistent with the terms of the articles.^ 
 
 3. It is the practice of a firm, when debts are discovered to 
 be bad, to debit them to the profit and loss account of the 
 current year, without regard to the year in which they may 
 have been reckoned as assets. A partner dies, and after the 
 accounts have been made up for the last year of his interest 
 in the firm, it is discovered that some of the supposed assets 
 of that year are bad. His executors are entitled to be paid 
 the amount appearing to stand to his credit on the last account 
 day, without any deduction for the subsequently discovered 
 loss.' 
 
 Variations It is an obvious corollary of the rule here set forth that 
 
 when assented . . . . 
 
 to binding on persons claiming an interest in partnership property as 
 
 rew-eseuta- representatives or assignees of any partner who has assented 
 
 tives. expressly or tacitly to a -variation of the original terms of 
 
 partnership are bound by his assent, and have no ground 
 
 to complain of those terms having been departed from.* 
 
 Partnership 27. TliB partners in any firm are owners in 
 
 property. 
 
 coniinon [or jonit owners without benefit of 
 
 1 Lord Bldon in Const v. ILtrrh (1824), Turn. & E. at p. 523. 
 
 "• Comdi-i/ V. Barchiji (1864), 3 D. J. S. 320. 
 
 = Ex parte Barber (1870), 5 Ch. 687. 
 
 * Gunst V. Harris (1824), Turn. & E, at p. 524. 
 
MUTUAL RELJ TIONS. 63 
 
 survivorship?] of all property and valuable ^•''■p-^^- 
 
 interests originally brought into the partner- 
 
 ship stock or acquired, whether by purchase or 
 -otherwise, on account of the firm, or for the 
 purposes and in the course of the partnership 
 business. Such property ar^d interests are 
 -called partnership property.^ 
 
 Explanation. — The legal estate in land which 
 is partnership property is held and devolves 
 according to the general rules of the law of 
 real property, but in trust, so far as necessary, 
 for the persons beneficially interested in such 
 land under this article.^ 
 
 Exception. — Where co-owners of an estate or 
 interest in land, not being itself partnership 
 property, are partners as to profits made by 
 the use of the land, and purchase other land 
 out of such profits to be used in like manner, 
 the land so purchased belongs to them, in the 
 absence of an agreement to the contrary, not 
 as partners, but as co-owners.^ 
 
 Illustrations. 
 
 1 . Land bought in tte name of one partner, and paid for 
 by the firm or out of the profits of the partnership business,* 
 is prima facie partnership property." 
 
 1 Altered from I. 0. A. 253, sub-s. 1. 
 s Lindley, i. 643. 
 3 See Illustration 6. 
 
 * Nerot V. Burnand (1827), 4 Euss. 247 ; 2 Bli. N. S. 215. 
 5 Wedderburn v. Wedderburii (1856), 22 Beav. at p. 104 ; Lindley, 
 i. 647. 
 
64 THE CONTRACT OF PABTNEBSHIP. 
 
 Chap. vr. 2. One partner in a firm buys railway shares in Ms own 
 
 ^^^- ^"^^ name, and without the authority of the other partners, but 
 
 with the money and on account of the firm. These shares 
 
 are partnership property.' 
 
 3. The goodwill of the business carried on by a firm, so far 
 as it has a saleable value, is partnership property.' 
 
 4. A. and B. take a lease of a colliery for the purpose of 
 working it in partnership, and do so work it. The lease is 
 partnership property.' 
 
 5. A. and B., being tenants in common of a colliery, begin 
 to work it as partners. This does not make the colliery 
 partnership property.' 
 
 6. If, in the case last stated, A. and B. purchase another 
 colliery, and work it in partnership on the same terms as the 
 first, the purchased colliery is not partnership property, but 
 A. and B. are co-owners of it for the same shares and 
 interests as they had in the old colliery.* 
 
 7. ~W., a nurseryman, devises the land on which his busi- 
 ness is carried on and bequeaths the goodwill of the business 
 to his three sons as tenants in common in equal shares. After 
 his death the sons continue to carry on the business on the 
 land in partnership. The land so devised to them is partner- 
 ship property.^ 
 
 8. A. is the owner of a cotton-miU. A., B. and C. enter 
 into partnership as cotton-spinners, and it is agreed that the 
 business shall be carried on at this mill . A valuation of the 
 mill, fixed plant, and machinery is made, and the ascertained 
 value is entered in the partnership books as A.'s capital, and 
 he is credited with interest upon it as such in the accounts. 
 
 1 Ex parte Hinds (1863), 3 De G. & Sm. 603. 
 
 ' Lindley, i. 653. See more as to goodwill in Chap. viii. below. 
 Art. o~. 
 
 3 Lindley, i. 651 ; Craicshayx. Muide (1818), 1 Swanst. 495, 518, 
 523. A fortiori, where the colliery belongs to A. alone before the 
 partnership : Surdon v. BnrJuis (1862), 1 D. F. J. 42. 
 
 " Implied in Steward v. Blahwiii/ (1869), 4 Ch. 603; though ia 
 that case it was treated as doubtful if there was a partnership at 
 all. 
 
 5 Wtitercr v. Waierer (1873), 15 Eq. 402. 
 
MUTUAL RELATIONS. 65 
 
 During the partnership the mill is enlarged and improved, Chap. VI. 
 ■and other lands acquired and buildings erected for the same ^^^- ^^- 
 purposes, at the expense of the firm. The mill, plant, and 
 machinery, as well as the lands afterwards purchased and the 
 buildings thereon, are partnership property ; and if, on a 
 sale of the business, the purchase-money of the mill, plant, 
 and machinery exceeds the value fixed at the commencement 
 ■of the partnership, the excess is divisible as profits of the 
 j)artnership business.' 
 
 28. Unless a contrary intention appears by Property 
 express agreement or by the nature of the partnership 
 transaction, property bought with money 
 belonging to the firm is deemed to have been 
 bought on account of the firm. 
 
 Illustrations. 
 
 1. L. and M. are partners. M., having contracted for the 
 •purchase of lands called the T. estate, asks L. to share in it, 
 which he consents to do. The purchase-money and the 
 amount of a subsisting mortgage debt on the land are paid 
 ■out of the partnership funds, and the land is conveyed to L. 
 and M. in undivided moieties. An account is opened in the 
 books of the firm, called "the T. estate account," in which the 
 ■estate is debited with all payments made by the firm on 
 account thereof, and credited with the receipts. The partners 
 build each a dweUing-house at his own expense on parts of 
 the land, but no agreement for a partition is entered into. 
 The whole of the estate is partnership property.^ 
 
 2. Land is bought with partnership money on the account 
 of one partner, and for his sole benefit, he becoming a debtor 
 to the firm for the amount of the purchase-money. This land 
 is not partnership property.^ 
 
 3. [One of two partners expends partnership moneys in 
 
 ' Bolinson v. Ashton (18Yo), 20 Eq. 25. 
 
 ■^ Ex parte U'Kenna [Bank of England C'ase)(1861), 3 D. F. J. 645. 
 
 =* 3 D. P. J. 659 (1861); Sirdth-Y. Smith (1800), 5 Yes. 189. 
 
 P. F 
 
66 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. VI. 
 Art. 29. 
 
 Description of 
 interest of 
 partners in 
 partnership 
 property. 
 
 buying a ship, -which is registered in his name alone. The- 
 ship is not partnership property.'] 
 
 It is not quite clear whether the interest of partners in 
 the partnership property is more correctly described as a 
 tenancy in common or a joint tenancj' without benefit of' 
 survivorship, biit the difference appears to be merely 
 verbal.^ 
 
 It Avill be obsers'ed that the acquisition of land for- 
 partnership purposes need not be an acquisition by pur- 
 chase to make the land partnership property. Land 
 coming to partners by descent or de-^ise will equally be 
 partnership property, if, in the language of James, L.J.,, 
 it is " substantially involved iu the business.''-' 
 
 Conversion 
 into personal 
 estate for 
 some purposes 
 of land held 
 as partnership 
 property-. 
 
 29. Where land has become partnership- 
 property, it is treated as bet-«^een the partners- 
 (including the representatives of a deceased 
 partner), and also as between the real and 
 personal representatives of a deceased partner, 
 as personal and not real estate, unless a con- 
 trary intention appears either by express- 
 agreement or by the conduct of the partners.* 
 This is really involved in the foregoiag article, but is of 
 
 1 Walton V. Butler (1861), 29 Beav. 42S. This case as reported 
 seems to go beyond the other authorities : but the facts are very 
 briefly given, and there may have been circumstances -n-hich do not 
 appear. 
 
 2 Lindloy, i. 660. It follo-ws in theory that if one partner's 
 interest is forfeited to the Cro-wn, the -whole property of the firm is 
 forfeited : lb. 661 ; Blackst. Comm. ii. 409. 
 
 •* Id Eq. -100 ; see Illustration "i to Art. 27. 
 
 < Lindley, i. 667—670 (on the balance of authorities, -which sea- 
 there collected) ; Kindersley, '^'.-C, Darby \. Darbij (1856), 3 Dre-w. 
 49J, oOO ; and see 4 Ch. 609 (1869). 
 
MUTUAL RELATIONS. 67 
 
 Bucli importance as to call for a separate statement. The Chap. VI, 
 
 Art 30 
 rule may now be taken as well settled, but has not been '. — L^ 
 
 established without controversy. On this, however, it 
 
 seems needless to dwell here. Ample materials for the 
 
 critical and historical investigation of the subject will be 
 
 found in Lord Justice Lindley's work by the reader who 
 
 desires to pursue it further. 
 
 The application of this rule does not affect the character 
 
 of any property for the purposes of the Mortmain Act of 
 
 9 Greo. 2} But a deceased partner's share in land that 
 
 has become partnership property is liable to probate duty, 
 
 even if that partner's will purports to deal with it as 
 
 realty.^ 
 
 30. Partners may at any time by agree- Conversion of 
 ment between themselves convert partnership separate 
 
 , . , , , 1 J r> estate, or con- 
 
 property into the several property oi any one verseiy, by 
 or more of the partners, or the several property partners. 
 of any partner into partnership property. 
 
 Such conversion, if made in good faith, is 
 efBectual not only as between the partners, but 
 as against the creditors of the firm and of the 
 several partners.^ 
 
 Exception. — If the firm or the partner whose 
 separate estate is concerned becomes bankrupt 
 or is insolvent after any such agreement and 
 
 1 Ashworth v. Mimn (IS'S-SO), 1 j Oh. Div. 363. 
 
 2 Att.-Gen. v. Hulbuck (1883-4), 10 Q. B. D. 488; 13 Q. B. Dir. 
 275. 
 
 ' Lindley, i. 654; Campbell v. MuUett (1818-9), 2 Swanst. at pp. 
 575, 584. As to what will or may amount to conversion, see the, 
 judgments in Att.-Oen. v. Hubbuck, supra, especially that of 
 Bowen, L.J. 
 
 f2 
 
68 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. VI. before it is completely executed, the property 
 
 Art. 31. . 1 1 
 
 IS not converted. 
 
 Illustration. 
 A. and B. dissolve a partnership wliicli has subsisted 
 between them, and A. takes over the property and business 
 of the late firm. A. afterwards becomes bankrupt. The 
 property taken over by A. from the late partnership has 
 become his separate estate, and the creditors of the firm 
 cannot treat it as joint estate in the bankruptcy.^ 
 
 What is a 31- '^^^ sliare of a partner in the partner- 
 
 partner's g]^ip property at any given time is the propor- 
 
 tion of the then existing partnership assets to 
 which he would be entitled if the whole were 
 . realized and converted into money, and after 
 all the then existing debts and liabilities of the 
 firm had been discharged.* 
 
 Illustration. 
 P. and L. are partners and joint tenants of offices used by 
 them for their business. P. dies, having made his ■wiU, 
 containing the following bequest : "I bequeath all my share 
 of the leasehold premises .... in which my business 
 is carried on .... to my partner, L." Here, since the 
 tenancy is joint at law, " my share " can mean only 
 the interest in the property which F. had as a partner at the 
 date of his death — nameh-, a right to a moiety, subject to the 
 payment of the debts of the firm ; and if the debts of the 
 firm exceed the assets, L. takes nothing by the bequest.* 
 
 > Lindloy, i. 657 ; E.r parte Kemj>(ner (1860), 8 Eq. 286. 
 
 ^ Ex parte Riiffin (1801), 6 Yes. 119; see also the Illustrations to 
 Art. 76, below, where more complex cases are given. The questioa 
 whether partnei'ship property has been converted into separate pro- 
 perty occurs in fact chiefly, if not exclusively, in the administration, 
 of insolvent partner's estates. 
 
 ■> Lindley, i. 661. 
 
 * Farquhar v. Iladdm (1871), 7 Ch. 1. 
 
MUTUAL RELATIONS. 69 
 
 Unless any different agreement appears, the chap. vi. 
 interests of partners in the partnership pro '- — 
 
 ^ . . ^ , , . . Kules as to 
 
 perty and their mutual rights and duties m relations of 
 
 . partners in 
 
 relation to the partnership are determined absence of 
 
 1 • 1 ^^ • • ^ special agree- 
 
 by the rules stated m the following articles ment. 
 
 numbered thirty-two to thirty -nine inclusive. 
 
 32. Subject to the right of each partner to Presumed 
 
 be credited in account with the firm Avith the shares. 
 
 amount of capital actually brought in by him, 
 
 and with the amount of any indemnity he may 
 
 be entitled to under the next following article, 
 
 the shares of all the partners are presumed to 
 
 be equal ; and all the partners are entitled to 
 
 share equally in the profits of the business, and 
 
 must contribute equally towards the losses, 
 
 whether of capital or otherwise, sustained by 
 
 the partnership.^ 
 
 Illustration. 
 A. and B., solicitors, carrying on business separately, are 
 jointly retained to defend certain actions. This they do, con- 
 ducting different parts of the business. Unless any different 
 agreement is proved, the profits of the whole business are 
 equally divisible between A. and B.- 
 
 The form in which the rule is here expressed is deter- Form of the 
 mined by the usual mode of keeping partnership aooounts, equality of 
 in which the firm is treated as a fictitious person distinct ghares^^ ^ 
 from its members, and the capital brought in by each 
 member is a debt due to him from the firm. In a mercan- 
 tile view the debts of the firm to individual partners for 
 
 ' Lindley, i. 615, 801 seq. 
 
 ' Bohinson v. Anderson (1855), 7 D. M. G. 239. 
 
70 
 
 TEE CONTRACT OF PABTNEBSEIP. 
 
 Chap. VI. 
 Art. 88. 
 
 Otherwise 
 expressed in 
 Indian Act. 
 
 Eight of 
 partner to 
 indemnity 
 and contribu- 
 tion. 
 
 capital and advances must be allowed for, as well as its 
 debts to outside creditors, in order to ascertain the amount 
 of its divisible property : and it is only to tbe available 
 property of the firm as thus ascertained that the presump- 
 tion of equal interest as between the partners applies. The 
 Indian Contract Act (s. 253, sub-s. 1) gives the rule in a 
 less artificial form : — 
 
 " The share of each partner in the partnership property 
 is the value of his original contribution, increased or 
 diminished by his share of profit or loss." 
 
 It then goes on (sub-s. 2) to lay down the rule as to 
 sharing profit and loss to the same effect as here given. 
 This last rule is independent of the shares of capital 
 originally contributed by the partners ; and it is founded 
 on the consideration that it is impossible for the Court to 
 set a proportionate value on the ser-^ices of each partner 
 where there is no express agreement, since the worth of a 
 particular member to the firm may depend on many things 
 besides the amount of capital brought in by him.^ 
 
 33. Every partner is entitled to be indemni- 
 fied in account w^ith the fii'm for payments made 
 and j)ersonal liabilities incm-red by him — 
 a. In the ordinary and proper conduct of the 
 
 business of the firm f 
 h. In or about anj-thing necessarily done for 
 the preservation of the business or pro- 
 perty of the firm.' 
 Actual payments and advances so made 
 
 ' Lindley, i. 676. 
 ' Lindley, i. 759 seq. 
 
 3 Mx parte Chippendale {Oerman Mining Company's Case) (1853), 
 4 D. M. G. 19; Bitrdon v. Barkus (1862), 4 D. P. J. 42, 51. 
 
MUTUAL RELATIONS. 71 
 
 carry interest at the rate of five per cent, per chap. vi. 
 
 Generally speaking, every partner is the agent of the Tliis right is 
 ■firm for the conduct of its business (Articles 16 — 20, of agency, 
 above), and as such is entitled to indemnity on the ordi- 
 nary principles of the law of agency. But the rights of a 
 partner to contribution go beyond this: he may charge 
 the firm with moneys necessarily expended by him for the 
 preservation or continuance of the partnership concem.- 
 This right must be carefully distinguished from the power 
 -of borrowing money on the credit of the firm, of which it 
 is altogether independent.^ It arises only where a partner 
 has incurred expense which under the circumstances, and 
 having regard to the nature of the business, was absolutely 
 necessary, a,nd the firm has had the benefit of such 
 -expense ; as where the advances are made to meet imme- 
 diate debts of the firm (which is the most frequent case), 
 or to pay the cost of operations without which the business 
 -cannot go on, such as sinking a new shaft when the 
 -original workings of a mine are exhausted.* 
 
 The total amount recoverable is not necessarily limited 
 by the nominal capital of the partnership, for the expendi- 
 ^ture on existing undertakings cannot be measured by the 
 •extent ■ of the capital.' On the other hand, the limit of Limit of con- 
 -contribution may be fixed beforehand by express agree- be fixed by 
 ment among the members of a firm, and in that case no ^'o'^eement. 
 partner can call upon the others to exceed it, however great 
 
 ' Ex parte Chippendale (1853), 4 D. M. G. 36, 43 ; Sarcjood's 
 ■daim (1872), 15 Eq. 43. 
 
 ^ See note 3, last page. 
 
 -• 4 D. M. G. 35, 40 (1853). 
 
 * Burdon v. Barkus (1862), 4 D. F. J. 42; Ex parte Williamson 
 s{ 1869), 5 Ch. 309, 313 ; and the other cases cited in Lindley, i. 766, n. 
 
 ' Ex parte Chippendale (1853), 4 D. M. G. at p. 42. 
 
72 THE CONTRACT OF PARTNERSEIP. 
 
 Chap. VI. may have been the amount of his own outlay on behalf of 
 ■ '■ — '- — the firm.' This' has nothing to do with the obligations of 
 
 the partners to third persons, and accordingly does not 
 affect the rule that " as to the rest of the world," unless 
 the particular creditor has agreed to look only to some 
 particular fund, " each partner is liable for the whole- 
 amount of the debts 6i the partnership."^ 
 
 This duty imposed on the firm to indemnify any one of 
 its members against extraordinary outlaw's for necessarj^ 
 piu'poses is one of a class of duties quad ex contractu which 
 are recognized by the law of England onlj' very sparingl}' 
 and under special circumstances. It is outside the rules of' 
 agency,' and has still less to do with trust ; real analogies 
 are to be found in salvage and average. 
 
 Kightof 34. " Each partner has a rio'lit to take part in 
 
 partner to . . 
 
 take part in the management of the partnership business."^ 
 
 business. ■*■ 
 
 Although it is the rule, in the absence of special agree- 
 ment, that " one partner cannot exclude another from an 
 equal management of the concern," ^ yet it is "perfectly 
 competent," and in practice very common, " for partners 
 to agree that the management of the partnership affairs, 
 shall be confided to one or more of then- number exclusively 
 of the others;"" and in that case the special agreement 
 must be observed. 
 
 ' Worcpsler Corn Exchange CompaiiTj (lSo3\ 3 D. M. G. 180. 
 - Lindley, i. 3T(). 
 
 ' The Lord Justice Tiu-ner, ho-n-ovcr, seems to assume an implied: 
 authority : 4 D. lir. G. 40. 
 * 1. C. A. 2o;!, sub-s. 3. 
 
 " Kowe V. U'vod (18L>:2), 2 Jac. & W. at p. 5dS. 
 " Lindlej', i. 041. 
 
MUTUAL RELATIONS. 7a 
 
 35. " Each partner is bound to attend dili- Chap. vi. 
 
 . . Art. 35. 
 
 gently to the business of the partnership, and ■ 
 
 is not entitled to any remuneration for acting gratuitous 
 
 diligence in 
 in such business. ^ partnershiij 
 
 business. 
 
 This rule, like the preceding, may he, and often is, 
 
 departed from hy express agreement. The second hranch 
 
 of it does not prevent a partner from recovering compensation 
 
 for the extra trouhle thrown upon Mm hy a co-partner who 
 
 has disregarded the first hranch hy wilful inattention to 
 
 husiness.^ 
 
 36. Where differences arise as to matters in Power of 
 
 majority to 
 
 the ordinary course of the partnership business, decide difEer- 
 they are to be decided by a majority of the 
 partners f but the decision must be arrived at 
 in good faith for the interest of the firm as a 
 whole, and not for the private interest of all or 
 any of the majority, and every partner must 
 have an opportunity of being heard in the 
 matter. 
 
 This rule extends to powers conferred on a 
 majority of the partners by express agreement.* 
 
 37. No change can be made in the nature Change in 
 of the partnership business, or the place vs^here business 
 
 requires con- 
 sent of all. 
 
 ' I. C. A. 253, sub-s. 4 ; Lindley, i. T1'4. 
 
 ° Airnj V. Borham (1S61), 29 Bear. C20. 
 
 ' Verbally altered from I. 0. A. 253, sub-s. 5. 
 
 * Const V. Harris {\i2i). Turn. & E. 496, 518, 525; Blissety. 
 Daniel (1853), 10 Ha. 493, 522, 527. See the section "Of tbe 
 Powers of Majorities," Lindley, i. 598 — 609. 
 
THE CONTRACT OF PARTNEBSFIIP. 
 
 Chap. VI. 
 Art. 38. 
 
 it is carried on, except with the consent of all 
 the partners.* 
 
 This is one of the rules of partnership law which apj)lies 
 equally to companies ; and in that application it is of great 
 importance. " The governing body of a corporation that 
 is in fact a trading partnership cannot in general use the 
 funds of the community for any purpose other than those 
 for which they were contributed. "^ But it would not be 
 relevant here to pursue this subject farther. 
 
 New partner 
 not admitted 
 Tvithout con- 
 sent of all. 
 
 Assignment 
 of share of 
 profits. 
 
 38. "No person can be introduced as a 
 partner without the consent of all those who 
 for the time being are members of the firm."^ 
 
 This is given by Lord Justice Lindley as " one of the 
 fundamental principles of partnership law." The reason 
 of it is that the contract of partnership is presumed to be 
 founded on personal confidence between the partners, and 
 therefore not to admit of its rights and duties being trans- 
 ferred as a matter of course to representatives or assignees. 
 A jjartner can indeed assign or mortgage to a stranger 
 his interest in the profits of the firm ; and the assignee or 
 mortgagee will thereby acquire " a right to payment of 
 what, upon taking the accounts of the partnership, may be 
 
 ^ Natuscli V. Irving, Lindley, i. 601; Const v. II<irris (182-J), 
 Turn & E. 517; I. C. A. 253, sub-s. 5. As to place, Clements 
 v. Norris (1878), 8 Cli. Div. 129, •wHch. shows that one partner 
 cannot without the consent of the others even renew an expired 
 lease of premises where partnership works have already been 
 carried on. 
 
 ''■ Wickens, V.-C, in Pickering v. Stephenson (1872), 14 Eq. 322, 
 340. 
 
 ' Lindley, i, 097 ; olmost in the same words is I. C. A. 253^ 
 sub-s. 6. 
 
MUTUAL RELATIONS. 75 
 
 tlue to the assignor or mortgagor."' It is at least doubtful Chap. vi. 
 "whether he can call on the other partners to account with " L_ 
 
 him, and his claim is subject to all their existing rights.^ 
 
 " If the partnership is at will, the assignment dissolves 
 it ; and if the partnership is not at will, the other members 
 are entitled to treat the assignment as a cause of dissolu- 
 tion."! 
 
 An unauthorized attempt by one partner to admit a new 
 member into the firm, otherwise than by assignment of his 
 share, would have at most the effect of creating a sub- 
 partnership between himself and the new person ; that is, 
 there would be as between themselves a partnership in his 
 share of the profits of the original firm. But as against 
 the original firm itself the new-comer would have no rights 
 "whatever.' " Qui admittitur soeius ei tantum socius est, 
 •qui admisit ; et recte, cum enim societas consensu contra- 
 hatur, socius mihi esse non potest, quern ego socium esse 
 molui. Quid ergo si socius meus eum admisit? ei soli 
 socius est. Nam socii mei socius meus socius non est."* 
 
 On the other hand, the interest of all or any of the Shares trans- 
 partners may be made assignable or transmissible by atTeemeiS. 
 express agreement ; and such agreement may be embodied 
 ■once for all in the original constitution of the partnership.' 
 
 39. Tlie partnership books must be kept at Custody and 
 the place of business of the partnership (or the partnership 
 principal place if there is more than one), and 
 every partner is entitled to have access to them, 
 
 ' Lindley, i. 698. 
 
 - Kelly V. HuUon (1868), 3 Cli. 703. 
 
 ^ Lindle}', i. 54; Brown t. De Tastet (1821), Jac. 284. 
 
 • Ulpian, D. 12,.7, pro socio, 19, 20. 
 
 ^ Lindley, i. 699. . 
 
76 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. VI, 
 Art. 40. 
 
 Partner 
 cannot be ex- 
 pelled unless 
 under express 
 power. 
 
 EfEect of 
 attempted 
 irregular 
 expulsion. 
 
 and to inspect and transcribe the same or any 
 of them when he may think proper.^ 
 
 It must be observed that this rule, like the foregoing- 
 ones from Art. 32 onwards, is subject to any special agree- 
 ment that may be made between the partners. 
 
 40. No majority of the partners can expel 
 any partner unless a power to do so has been 
 conferred by express agreement between the 
 partners. 
 
 Where such power is conferred, it must be 
 exercised only in good faith with a view to the 
 benefit of the firm,^ and the partner whom it is 
 sought to expel must have an opportunity of 
 being heard.^ 
 
 If it is attempted to expel a partner contrary to tMs 
 rule — as, for instance, without hearing him — the attempted 
 expulsion is merely void. The paxty does not cease to be 
 a partner, and therefore sustains no loss in contemplation 
 of law, and has no cause of action for damages ; * his 
 remedy is to claim reinstatement in his rights as a partner, 
 which he can effectually do.^ 
 
 ' Greairex v. Oreatrex (1847), 1 De Gr. & Sm. 692, see the terms 
 of the order there : Lindley, i. 807. Where a firm has more than 
 one place of business, it should always be expressly provided by 
 the partnership articles which shall be considered the principal 
 place of business and where the books are to be kept. 
 
 - Compare Art. 3d, above ; Blisset y. Daniel (18J3), 10 Ha. 493. 
 
 3 Wood V. Wood (1874), L. E. 9 Ex. 190 ; Lindley, ii. 844. 
 
 * Wood, T. Woaii, last note. In this case the association in ques- 
 tion was not really a partnership, though spoken of as such : but. 
 for this purpose the principle is the same. 
 
 5 Blisset v. I)unitl{lSo'3), 10 Ha. 493. 
 
MUTUAL helations. 77 
 
 It is difficult to say how the Court would treat a clause chap. vi. 
 ■expressly giving power to expel a partner not only without ^^' ' 
 assigniag specific reasons, but without hearing him. There 
 can be little doubt that at one time it would have been 
 held void. At the present day it seems more likely that 
 effect would be given to it, if such appeared to be the real 
 intention of the parties : but at any rate the clearest and 
 most express words would be required to show such an 
 intention. 
 
 In one recent case ^ an attempt was made, but without 
 success, to extend this rule by analogy to the case of a 
 clause in partnership articles expressly empowering one of 
 the partners to determiue the partnership by notice if he 
 were dissatisfied with the conduct or results of the business. 
 It was held that this was not analogous to an expulsion, 
 and that, the partner in question being the sole judge of 
 his own dissatisfaction, the power could be exercised at his 
 absolute will and pleasure. 
 
 41. Where a partnership has been entered Retirement 
 
 . , (. r 1 , , , • from partner- 
 
 into lor a iixed. term, no partner can retire ship for a 
 from it during the term, except with the consent.''' ^ 
 consent of all the partners, or in the exercise 
 of an option previously conferred bj express 
 agreement.^ 
 
 42. Where no fixed term has been agreed Retirement 
 upon for the duration of the partnership, any sHpatwiu. 
 partner may retire from it at any time upon 
 giving express notice of his intention so to do 
 
 to all the other partners. 
 
 1 liussM Y. RusseU (1880), 14 Cli. D. 471. 
 
 ^ I. C. A. 253, sub-s. 9 (slightly altered) ; Lindley, i. 735. 
 
Chap. VI. 
 Art. 43. 
 
 Where part- 
 nership for 
 term is con- 
 tinued over, 
 continuance 
 on old terms 
 presumed. 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Where the partnership was originally con- 
 stituted by deed, it is doubtful whether the 
 notice must be under seal.^ 
 
 43. Where a partnership entered into for a 
 fixed term is continued after the term has- 
 expired, and without any new agreement, the 
 rights and duties of the partners remain th& 
 same as they were at the expiration of the 
 term, so far as consistent with the right of any 
 partner to determine the partnership at will.^ 
 
 A continuance of the business by the acting 
 partner or partners without any settlement or 
 liquidation of the partnership affairs is pre- 
 sumed to be a continuance of the partnership.* 
 
 Illustrations. 
 
 1 . A clause in partnership articles entered into between A> 
 and B. for a fixed term provides that " in case either of the 
 said partners shall depart this life during the said co-partner- 
 ship term" the surviving partner shall purchase his share at 
 a fixed value. A. and B. continue their business in partner- 
 ship after the expiration of the term. This clause is still 
 applicable on the death of either of them.* 
 
 ' Lindley, i. 221-2, -who thinks it not necessary ; Crawshay v. 
 Mauh (1818), 1 Swanst. at p. 508. See further as to notice of 
 dissolution. Art. 4'7, below. 
 
 2 I. 0. A. 256 (slightly altered) ; Lindley, ii. 823. 
 
 " Parsons v. Hayivard (1862), 4 D. F. J. 474. 
 
 * Essex V. Essex (1855), 20 Beav. 442 ; Cox v. WiUoughhy (1880), 
 13 Ch. T). 863. Coolcson v. Coolsvti (1837), 8 Sim. 529, must h& 
 considered as not being law on this point. In Tates v. Finn (1880), 
 13 Ch. D. 839, it incidentally appears that Hall, V.-C, took a 
 different view of some similar clause, but, the case being reported 
 mainly for other points, the terms of the clause and the judge's 
 reasons are not given. 
 
MUTUAL RELATIONS. 79 
 
 2. Articles for a partnersMp for one year contain an arbi- Chap. VI. 
 tration clause, and the partnership is continued beyond the ^^^- ^^- 
 year. The arbitration clause is stiU binding.' 
 
 3. A. and B. are partners for seven years, A. taking no 
 active part in the business. After the end of the seven years 
 B. continues the business in the name, on the premises, and 
 ■with the property of the firm, and without coming to an 
 account. The partnership is not dissolved, and A. is entitled 
 to participate on the terms of the original agreement in the 
 profits thus made by B.^ 
 
 4. Partnership articles provide that a partner ■wishing to 
 retire shall give notice of his intention a certain time before- 
 hand. If the partnership is continued beyond the original 
 term, this provision does not hold good, as not being con- 
 sistent ■with a partnership at -will.^ 
 
 5. A. and B. enter into partnership for seven years, under 
 ■articles ■which empower either partner, if the other neglects 
 
 the business, to dissolve the partnership by notice, and 
 purchase his share at a valuation. They continue in part- 
 nership after the seven years. This power of dissolution on 
 special terms can no longer be exercised, as either party may 
 now dissolve the partnership at will.* 
 
 The same rule has been substantially acted upon in the Where 
 
 ... ,. Ti;i •• business con - 
 
 case 01 a bnsmess being contmued by the surviving part- tinned by 
 ners after the death of a member of the original firm ; ^ pa^™^ 
 the Court inieired as a fact from their conduct that the 
 tusiness ■was continued on the old terms ; but it is probably 
 safe to assume that here also, if there were nothing more 
 than a want of evidence to the contrary, a continuance on 
 the old terms would be presumed. 
 
 1 OiUettY. Thornton (1875), 19 Eq. 599. 
 
 2 Parsons v. Hayward (1862), 4 D. P. J. 474. 
 
 ^ FeatherstonJiaugh v. Fenwick (1810), 17 Ves. at p. 307. 
 ^ Clark y. Leach (1862), 32 Beav. 14; ID. J. S. 409; see the 
 M. E.'s Judgment, 32 Beav. 21. 
 
 5 King v. Chuck (1853), 17 Beav. 325. 
 
«0 
 
 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. VI. 
 Art. 44. 
 
 In the Scottish appeal of Neilson v. Mossend Iron Co} 
 the House of Lords held that a clause providing for 
 the optional retirement of any partner on special terms 
 " three months before the termination of this contract," 
 was not applicable to the partnership as continued 
 after the expiration of the original term. But this 
 decision was on the construction of " a strangely and 
 singularly worded article" (per Lord Selborne, at p. 304). 
 Lord Watson affirmed the general rule that " when the 
 members of a mercantile firm continue to trade as partners 
 after the expiry of their original contract without making 
 any new agreement, that contract is held in law to be 
 prolonged or renewed by tacit consent, Or, as it is 
 termed in the law of Scotland, by ' tacit relocation.' The 
 rule obtains in the case of many contracts besides that of 
 partnership ; and its legal effect is that all the stipiilations 
 and conditions of the original contract remain in force, in 
 so far as these are not inconsistent with any implied term 
 of the renewed contract." In this case, however, time was 
 of the essence of the condition (pp. 308, 311). 
 
 Partners 
 must act for 
 ■common 
 advantage. 
 
 44. " Partners are bound to carry on the 
 business of the partnership for the greatest 
 common advantage, to be just and faithful to 
 each other, and to render true accounts and 
 full information of all things afEecting the 
 partnership to any partner or his legal re- 
 presentatives." ^ 
 
 This is a fundamental rule for which it would be idle to 
 cite specific authoritj-. 
 
 11 App. Ca. 298 (1886). 
 
 I. C. A. 257. 
 
MUTUAL RELATIONS. 81 
 
 Where written partnership articles are entered into, a Chap. VI. 
 •clause to this effect is almost always inserted. There is no " ! 
 
 ■doubt, however, that the obligation of uberrima fides is 
 incidental to the nature of the partnership contract, and 
 the only object of expressing it on these occasions is to 
 remind the partners of the duties imposed on them by the 
 general law. The same remark applies to several other 
 things which are usually expressed in such instruments. 
 The practice is not altogether consistent with the general 
 principles of conveyancing, but appears in this case to be 
 reasonable and useful. 
 
 45. -Every partner must account to the firm Partners must 
 for any benefit derived by him from a trans- private gain 
 
 . • ix, i I,- 1 by partner- 
 
 action concerning the partnership. ship trans- 
 
 This rule applies to transactions undertaken 
 
 after a partnership has been dissolved by the 
 
 death of a partner, and before its affairs have 
 
 been completely wound up, either by any 
 
 surviving partner or by the representatives of 
 
 the deceased partner. 
 
 Illustrations. 
 
 1. A., B. and C. are partners in trade. C, without the 
 knowledge of A. and B., obtains for his sole benefit a renewal 
 of the lease of the bouse in which the partnership business is 
 carried on. A. and B. may at their own option treat the 
 renewed lease as partnership property.* 
 
 It would [probably] make no difference if C. had given 
 notice to A. and B. that he intended to apply for a renewal 
 of the lease for his own exclusive benefit.' 
 
 ' I. C. A. 258 (sHghtly altered). 
 
 " Featherstonhaugh v. Fenwick (1810), 11 Yes. 298 ; I. 0. A. 258, 
 Illust. a. 
 
 ' Glegg v. Edmondson (1857), 8 D. M. G. Y8V, 80V. 
 
 P. G 
 
82 THE CONTRACT OF PARTNERSHIP. 
 
 Chap. VI. 2. A., B., 0. and D. are partners in the business of sugar 
 
 ■*'^'^- ^^- refiners. C. is the managing partner, and also does business- 
 separately, with the consent of the others, as a sugar-dealer. 
 He buys sugar in his separate business, and sells it to the 
 firm at a profit at the fair market price of the day, but -without 
 letting the other partners know that the sugar is his. Tha 
 firm is entitled to the profit made on every such sale.^ 
 
 3. A., B. and 0. acquire the lease of certain works for the 
 purposes of a business carried on by them in partnership, A. 
 conducting the transaction with the former lessees on behalf 
 of the firm. The former lessees, being anxious to find a 
 responsible assignee and get the works ofi: their hands, pay a 
 premium to A. A. must account to his partners for the 
 money thus received.^ 
 
 4. One of two partners in a firm which held leaseholds for 
 the purposes of the business dies. The lease expires before the 
 affairs of the firm are completely wound up, and the surviving 
 partner renews it. The renewed lease is partnership pro- 
 perty.'' 
 
 5. A member of a firm agrees to take a lease in his own 
 name, but in fact for partnership purposes, and dies before 
 the lease is executed. His representatives cannot deal with 
 the lease without the consent of the surviving partners.* 
 
 Parallel rule The general principle is one of those which the law of 
 
 in agency. , 
 
 partnership takes from agency, considering each partner as 
 agent for the firm ; or it is perhaps better to say that it is 
 established in both these branches of the law on similar 
 grounds. The rule that an agent must not deal on his 
 own accoimt or make any undisclosed profit for himself in 
 
 1 Sentley v. Craven (18d3), 18 Beav. 15. 
 
 = Fawcett v. miUchouse (1829), 1 Buss. & M. 132. 
 
 3 Ckmenis v. Hall (ISd"), 2 De G. & J. 173, 186. The surviving- 
 partner is sometimes called a trustee or quasi trustee of the part- 
 nership property. But this use of the term is at least doubtful ; 
 see Lord Westbury's remarks in Enox v. Oye (1871-2), L. E. 
 o H. L. G7d. 
 
 * Adhr V. Fouracre (1818), 3 Swanst. 489. 
 
MUTUAL RELATIONS. 83 
 
 tlie business of his agency is a stringent and universal Chap. VI. 
 one.^ . \ \ 
 
 46. "If a partner, without the [knowledge Partner must 
 and] consent of the other partners, carries on withfii-m. 
 any business competing or interfering with 
 that of the firm, he must account to the firm 
 for all profits made in such business, and must 
 make compensation to the firm for any loss 
 occasioned thereby." ^ 
 
 This is an elementary rule analogous to the last. It 
 follows that no partner can, without the consent of the 
 rest, he a member of another firm carrying on the like 
 business in the same field of competition ; and i£ that con- 
 sent is given, he is limited by its terms. And if special 
 knowledge is acquired by him as a member of the one 
 firm, he must not use it for the benefit of the other and to 
 the prejudice of the first. And this equally holds if 
 several members, or even all the members but one, are 
 common to both firms. 
 
 If A., B., 0. and D. are the proprietors of a morning 
 newspaper, and A., B. and C the proprietors of an even- 
 ing newspaper for which the types and plant of the morn- 
 ing paper are used by agreement, D. may restrain A., B. 
 and C. from first publishing in A., B. and C.'s evening 
 paper intelligence obtained by the agency of the morning 
 paper, and at the expense of the firm of A., B., C. and D.* 
 
 1 Story on Agency, §§ 210, 211 ; Parker v. McKenna (18'74), 10 
 Ch. 96 ; Hay's Case (1875), lb. 593 ; Dunne v. English (1874), 18 
 Eq. 524. 
 
 ^ I. 0. A. 259 (the words in 'brackets seem superfluous, for 
 there cannot be consent without knowledge) ; Lindley, i. 579. 
 
 " g-lassington v. Thwaites (1822-3), 1 Sim. & St. 124. 
 
 g2 
 
84 THE CONTBAGT OF PARTNERSHIP. 
 
 Chap. VI. An express covenant in partnership articles not to 
 
 '■ — '- — " engage in any trade or business except upon the account 
 
 and for the benefit of the partnership," has been held to 
 add nothing to the duty already imposed by law. It does 
 not entitle the firm to an account of profits against a 
 partner who has engaged in an independent trade not 
 within the scoj)e of the partnership business, and who 
 derives no advantage ia it from his position as a partner 
 or by the use of any property of the firm.^ 
 
 ' Dean v. MacDowell (1877-8), 8 Ch. D. 345. 
 
CAUSES OF DISSOLUTION. 85 
 
 PART II. 
 
 Wt^t iSissolutioit of i^artntrisDijJs;* 
 
 CHAPTEE YII. 
 Of Dissolution and its Consequences. 
 
 Where there is no agreement to the contrary chap. vii. 
 
 between the partners, the dissolution of a '- — '- — 
 
 partnership takes place in any of the events 
 specified in the four following articles : — 
 
 47. If any partner gives notice to the other Dissolution of 
 
 n 1 • • • T 1 1 partnership 
 
 or others of his intention to dissolve the partner- by retirement 
 ship, the partnership is dissolved as from the 
 date of the notice. 
 
 " Where no term is expressly limited for its duration, 
 and there is nothing in the contract to fix it, the 
 partnership may be terminated at a moment's notice by 
 either party. By that notice the partnership is dissolved 
 to this extent, that the Court will compel the parties to act 
 as partners in a partnership existing only for the purpose 
 of "winding up the affairs."^ 
 
 The dissolution takes place as from the date of the 
 notice, and without regard to the state of mind of the 
 
 1 Crawshay v. Maule (1818), 1 Swanst. at p. 508. 
 
86 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. partner to whom the notice is given. Insanity on his part 
 ^'^*- ^^- does not make it less effeotual.i Qf insanity as a special 
 ground of dissolution when the partnership is not at wiU 
 we shall speak presently. A valid notice of dissolution 
 once given cannot be withdrawn except by consent of all 
 the partners.^ 
 
 Where a partnership has been entered into for a fixed 
 term, the partnership is at the end of that term dissolved 
 " by effluxion of time " vsdthout any further act or notice, 
 except in the cases mentioned in Art. 43, above. 
 
 By bank- 48. The aKenation of any partner's share 
 
 ^rtner. "' ° by Operation of law dissolves the partnership. 
 
 Illustration. 
 If a partner becomes bankrupt or is outlawed, or if his 
 interest in partnership property is taken ia execution and 
 purchased by a stranger, the partnership is thereby dis- 
 solved.' 
 
 Execution for As to taking property of the firm in execution for a 
 
 separate'debt. partner's separate debt, see Lindley,* and Helmorc v. 
 
 Smith (1).^ Before the Judicatm-e Acts it was an ex- 
 
 1 Mellersh v. Keen (1859), 27 Beav. 236; Jones x. Lloyd (IST-i), 
 18 Eq. 265. 
 
 • Jones V. Lloyd (1874), 18 Eq. at p. 271. 
 
 ' Lindley, i. 220. Before January 1, 1883, if a female partner 
 married -without settling her share ia the partnership to her separate 
 use, the partnership was dissolved (but see Lindley, i. 85, and 
 Ashworth V. Outram, 1877, 5 Ch. Div. 023). Re Childs (1874), 
 9 Ch. 508, shows that, for administrative purposes at least, a wife 
 entitled for her separate use to a share of the profits of her 
 husband's business may be considered as his partner. The Married 
 Women's Property Act, 1882 (45 & 46 Vict. o. 75), ss. 1, 2, seems 
 to make it clear that the marriage of a female partner would not 
 now dissolve the partnership. 
 
 ' Vol. i. 692. 
 
 » 35 Ch. Div. 436 (1887). 
 
CAUSES OF DISSOLUTION. S7 
 
 tremely clumsy process. The course provisionally sug- Chap. vil. 
 gested by Lord Justice Luidley corresponds, I believe, " 
 
 with the recent practice at Judges' Chambers,^ but further 
 amendment is wanted. The codifying BiU of 1882 pro- 
 posed to deal with the matter by empowering the Court or 
 a judge, on the application of any judgment creditor of a 
 partner, to make a charging order on his share in the 
 assets, to direct accounts and inquiries, and do whatever 
 might have been done if the charge had been created by 
 the partner himself, including a dissolution at need. I 
 ■am permitted to state that this clause ^ had Lord Justice 
 Lindley's approval. 
 
 It is to be noted that the execution of a writ of fi. fa. The mode of 
 ■against partnership property does not of itself dissolve the 
 partnership; but dissolution is the inevitable consequence 
 of an undivided interest in partnership property being 
 acquired under such a writ by a stranger. Therefore 
 there is not a dissolution by operation of law where a 
 solvent partner buys the debtor's share, and pays for it out 
 of assets of the firm ; though it remains undecided what 
 would be the effect of his buying it with his separate 
 money.' " What the sherifE has got to sell is not the share 
 and interest of the execution debtor in the partnership, 
 but the share and interest of the execution debtor in such 
 of the chattels of the partnership as are seizable under a fi. 
 fa. The unfortunate purchaser from the sheriff has to find 
 out what he has reaUy had assigned to him, and that he 
 can only do by a partnership account; there is no other 
 method of proceeding. That does involve practically 
 the dissolution of the whole concern. Now, what makes 
 
 ' See Whetham v. Davey (1885), 30 Ch. D. at p. 519. 
 '' Clause 41 ; see the BiU reprinted in Appendix below. 
 ' Eelmare v. SmitJi (1887), 35 Ch. Div. 436. 
 
88 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. 
 Art. 49. 
 
 this particular case easy is this: when the sheriff sold 
 under the fi. fa. he sold to the continuing partner, the 
 solvent partner, who did not pay the purchase-money to- 
 the sheriff out of his own money, but paid for what he 
 purchased out of the assets of the partnership. In point 
 of law, the necessary result of buying this share with the- 
 funds of the concern is that there was no dissolution at aU."^ 
 Where judgment has been given in an action in the 
 Chancery Division for the dissolution of a partnersliip,. 
 and a receiver appointed, and afterwards a creditor re- 
 covers judgment against the firm in an action in the 
 Queen's Bench Division, the judgment creditor can obtain, 
 by applying in the Chancery action, a charge for the debt 
 and costs on the partnership money in the hands of or 
 coming to the receiver, undertaking to deal with the charge 
 according to the order of the Court. ^ 
 
 By death of 
 partner. 
 
 By assign- 
 ment of part- 
 ner's share in 
 partnership 
 at will. 
 
 49. The death of any partner dissolves the- 
 partnership.^ 
 
 Explanation. — In the absence of any previous- 
 agreement to the contrarj-, the partnership is- 
 dissolved, in any of the cases mentioned in the 
 three foregoing articles, as bet-\veen all the- 
 members of the firm, and not only as to that 
 partner who retires, or who dies, or whose 
 share becomes alienated. 
 
 50. If any partner assigns or incumbers his 
 interest in the property or profits of the firm,. 
 
 ' Lindley, L. J., 30 Ch. Div. at p. 447. 
 
 2 Eewney v. Attrill (1886), 34 Ch. D. 34o. 
 
 3 Lindley, i. 231. 
 
CAUSES OF DISSOLUTION. 89> 
 
 the partnership not being for a fixed term, the chap. vii. 
 partnership is thereby dissolved.^ 
 
 51. A partnership is in every case dissolved By business 
 
 .of partnership. 
 
 by the happening oi an event which makes it becoming 
 unlawful for the business of the firm to be 
 carried on, or for the members of the firm to 
 carry it on in partnership.^ 
 
 Illustrations. 
 
 1. A. and B. charter a ship to go to a foreign port and 
 receive a cargo on their joint adventure. War breaks out 
 between England and the country where the port is situated 
 before the ship arrives at the port, and continues until after 
 the time appointed for loading. The partnership between A. 
 and B. is dissolved.^ 
 
 2. A. is a partner with ten other persons in a certain 
 business. An Act is passed which makes it unlawful for more 
 than ten persons to carry on that business in partnership. 
 The partnership of which A. was a member is dissolved. 
 
 3. A., an Englishman, and domiciled in England, is a 
 partner with B., a domiciled foreigner. War breaks out 
 between England and the country of B.'s domicil. The 
 partnership between A. and B. is dissolved.' 
 
 52. The Com't,® or in the case of a partner Causes for 
 becoming lunatic the Lord Chancellor,® may partnership 
 
 by the Court.. 
 
 ' See on Art. 38, above. 
 
 2 Lindley, i. 232 ; I. C. A. 255. 
 
 ' See Esposito v. Bowden (1S57), 7 E. & B. 763 ; 27 L. J. 
 Q. B. 17. 
 
 ' Griswold v. Waddington (1818) (Supreme Court, New York), 
 15 Johns. 57 ; 16 ib. 438. 
 
 ' All causes and matters for the dissolution of partnerships or the 
 taking of partnership accounts are assigned to the Chancery 
 Division (subject to Eules of Court or orders of transfer) by s. 34 
 of the Judicature Act, 1873. 
 
 Lunacy Eegulation Act, 1853, 16 & 17 Vict. c. 70, s. 123. 
 
Art. 52. 
 
 ■90 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. dissolve the partnership at the suit of a partner 
 in any of the follovping cases : — 
 
 1. When a partner is found lunatic by in- 
 quisition, or is shown to the satisfaction of 
 the Court to be of permanently unsound 
 naind.^ 
 
 2. When a partner, other than the partner 
 suing, becomes in any other way perma- 
 nently incapable of performing his part of 
 the partnership contract.^ 
 
 3. When a partner, other than the partner 
 suing, becomes liable to a criminal prosecu- 
 tion.® 
 
 4. When a partner, other than the partner 
 suing, so conducts himself in matters 
 relating to the partnership business that 
 it is not reasonably practicable for the 
 other partner or partners to carry on the 
 business in partnership with him.* 
 
 5. When a partner, other than the partner 
 suing, the partnership being for a fixed 
 term, assigns or incumbers his interest in 
 the property or profits of the firm.® 
 
 1 Lindley, i. 224-7 ; Jones v. Noy (1833), 2 M. & K. 125 ; Anon. 
 (1855-6), 2 K. & J. 441 ; Xeo/y. CoUs (1851), 1 D. M. G. 171. It 
 is ■well settled that lunacy does not of itself 'work a dissolution. 
 
 2 WhitiuellY. Arthur (1865), 35 Beav. 140. 
 
 3 Essel T. Ilayioard (1860), 30 Beav. 158. 
 
 * Harrison v. Tennant (1856), 21 Beav. 482. 
 5 Art. 38, above. 
 
CAUSES OF DISSOLUTION. 91 
 
 6. Wten the business of the partnership can chap. vii. 
 
 ^ ^ Art. 52. 
 
 only be carried on at a loss.^ 
 It is to be observed that the right of having the partner- Dissolution at 
 
 •,•-,.■,■,.,-, n , 1 ■ • suit of pai'tncr 
 
 ship dissolved m the case oi one partner becoming insane of unsound 
 is not confined to his fellow-partners. A dissolution inay ™J^'l- 
 be sought and obtained on behalf of the lunatic partner 
 himself ; and this may be done either by his committee in 
 lunacy under the Lunacy Regulation Act, or, where he has 
 not been found lunatic by inquisition, by an action brought 
 in his name in the Chancery Division by another person as 
 his next friend. In the latter case, the Court may, if it 
 thinks fit, direct an application to be made in Lunacy 
 before finally disposing of the cause.'* 
 
 It is rather difficult to fix the point at which acts of a What conduct 
 partner tending to shake the credit of the firm and the ground for 
 other partners' confidence in him become sufficient ground ^^^° "^ '°°" 
 for demanding a dissolution. The fact that a particular 
 partner's continuance in the firm is injurious to its credit 
 and custom is not of itself ground for a dissolution where 
 it cannot be imputed to that jpartner's own wilful miscon- 
 duct. In a case where one partner had been insane for a 
 time, and while insane had attempted suicide, this was 
 held not to be a cause for dissolution, although it was 
 strongly urged that the credit of the firm could not be pre- 
 served if he remained in it.' On the other hand, conduct 
 of a partner in the business carried on by the firm and its 
 predecessors, though not in the actual business of the 
 existing firm, which was calculated to destroy mutual con- 
 
 ' Jennings v. Baddeley (1856), 3 E. & J. 78 : "if the purposes of 
 tlie partnership cannot be carried into eflect with any reasonable 
 prospect of profit ; " per Cotton, L. J., 13 Ch. Div. at p. 65. 
 
 = Jones V. Lloyd (1874), 18 Eq. 265. 
 
 3 Anon. (1855-6), 2 E. & J. 441, 452. 
 
92 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. fidence among the partners, has been held sufficient ground. 
 ^ — '- — for a dissolution.^ 
 
 Actual malversation of one partner in the partnership 
 affairs, such as failing to account for sums received,^ is 
 groimd for a dissolution ; so is a state of hostility between, 
 the partners which has become chronic and renders mutual 
 confidence impossible, as where they have habitually 
 charged one another,' or one partner has habitually 
 charged another,* with gross misconduct in the partnership 
 affairs. 
 
 In At wood \. Maude^ Lord Cairns said : — 
 
 " It is evident . . . that in every partnership . . . suck 
 a state of feeling may arise and exist between the partners 
 as to render it impossible that the partnership can continue 
 with advantage to either ; " and he added that, when it is. 
 admitted that this state of feeling does in fact exist, it 
 becomes immaterial by whom a judicial dissolution of the 
 partnership is sought. If this dictum could be accepted to. 
 its fuU extent in the absence of positive authority, sub- 
 section 4 of the foregoing article might be put in a 
 broader and simpler form to this effect : — 
 
 " When the relations between the partners or some of 
 them have become such that in the judgment of the Court 
 a continuance of mutual confidence is thereby rendered 
 impossible." 
 
 Dissolution by order of the Com-t takes effect as from 
 the date of the judgment, unless ordered on the ground of 
 a specific breach of duty giving the other member or mem- 
 
 ' Harrison v. Temiant (I806), 21 Beav. 482. 
 2 Cheesman v. Price (1S6J), 3d Beav. li'2. 
 8 Saxler v. West (1860), 1 Dr. & Sm. 173. 
 
 < Wafney v. WeUs (1861), 30 Beav. 06 ; Leary v. Shout (1864), 3a 
 Beav. 5S2. 
 
 ' 3 Ch. at p. 3V3 (1868). 
 
CONSEQUENCES OF DISSOLUTION. 93 
 
 bers a right to dissolve the partnership, in which case alone Chap. Vll. 
 
 Art 53 
 
 it may relate back to that event.^ ! '. . 
 
 53. The riffhts of a creditor of a firm against Eights of 
 
 ° ° creditors 
 
 its apparent members are not affected by any against 
 
 , apparent 
 
 dissolution or change in the firm of which that members of 
 
 T T 1 • firm. 
 
 creditor had not notice.^ 
 
 An advertisement in the London Gazette is 
 equivalent to notice as to creditors vi^ho were 
 not in fact customers of the firm before the 
 time of the dissolution or change.^ 
 
 Exceptions. — The estate of a partner who 
 dies/ or who becomes bankrupt/ or of a partner 
 who, not having been known to the creditor to 
 be a partner, retires from the firm,^ is not liable 
 for partnership debts contracted after the date 
 of the death, bankruptcy, or retirement re- 
 spectively. 
 
 Illustrations. 
 1. A. and B., partners in trade, agree to dissolve the part- 
 nership, and execute a deed for that purpose, declaring the 
 partnership dissolved as from the 1st of January; hut they 
 do not discontiuue the business of the firm or give notice of 
 the dissolution. On the 1st of February A. indorses a bUl in 
 the partnership name to C, who is not aware of the dis- 
 solution. The firm is liable on the bill.' 
 
 1 Lyon V. Twedddl (1881), lY Ch. Div. 529. 
 
 2 Lindley, i. 406; I. 0. A. 264. 
 ^ Ih. 415, 416. 
 
 « Ih. 404. 
 5 IK 405. 
 « lb. 
 
 ^ Ex parte BoUnson (1833), 3 D. & Ch. at p. 388, per Lord 
 Brougham. 
 
94 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. 
 Art. 64. 
 
 2. A bill is drawn on a firm in its usual name of tlie M. 
 Company, and accepted by an autborized agent. A. waa 
 formerly a partner in tbe firm, but not to tbe knowledge of 
 B., tbe bolder of tbe bill, and ceased to be so before tbe date 
 of tbe bill. B. cannot sue A. upon tbe bill.' 
 
 3. A. is a partner witb otber persons in a bank. A. dies, 
 and tbe survivors continue tbe business under tbe same firm. 
 Afterwards tbe firm becomes insolvent. A.'s estate is liable 
 to customers of tbe bank for tbe balances due to them at A.'s 
 deatb, so far as tbey still remain due, and for otber partner- 
 sbip liabilities incurred before A.'s deatb ;^ but not for any 
 debts contracted or liabilities incurred by tbe firm towards 
 customers after A.'s death.' 
 
 In tbe case of liabilities of tbe firm which have arisen after 
 A.'s deatb, it makes no difference that at tbe time when tbe 
 partnership liability arose tbe customer believed A. to be still 
 living and a member of the firm.* 
 
 Eight of 
 partners to 
 notify disso- 
 lution. 
 
 54. On the dissolution of a partnership, or 
 retirement of a partner, any partner may 
 publicly notify the same, and may require the 
 other partner or partners to concur for that 
 purpose in all necessary or proper acts, if any, 
 which cannot be done without his or their con- 
 
 currence. 
 
 5 
 
 In Troughton v. Hunter^ it appeared to be the practice 
 of the London Gazette Office not to insert a notice of dis- 
 solution unless signed by all the partners ; and the defen- 
 
 1 Carter v. Whalletj (1830), 1 B. & Ad. 11. 
 
 = DevaynesY. Kohle [iSlG), 1 Mer. 529; Sleech's Case (1816), at 
 p. 539; Clayton's Case (1816), at p. 572. 
 
 3 Brice's Case (1816), lb. 022. 
 
 * HouUon's Case (1816), lb. 616. The judgment itself in this 
 case is not reported ; but it appears by the marginal note and the 
 context that it foUowoil Brice's Citse. 
 
 » 18 Boav. '170 (1854). 
 
CONSEQUENCES OF DISSOLUTION. 95 
 
 dant, who had. refused to sim a notice, was decreed to do Chap. vii. 
 
 . . . Art 66 
 all things necessary for procuring notice of the dissolution .1 — '. — . 
 
 to be inserted in the Grazette. A retiring partner may he 
 ordered to sign a notice of dissolution for insertion in the 
 Gazette, even if no other specific rehef is claimed.^ 
 
 55. After the dissolution of a firm, the Contmumg 
 
 authority of 
 
 authority of each partner to bind the firm, and partners for 
 
 . „ , purposes of 
 
 the other rights and obngations of the partners, winding-up. 
 continue notwithstanding the dissolution so far 
 as is necessary to settle and liquidate existing 
 demands, and to complete transactions begun 
 but unfinished at the time of the dissolution,^ 
 but not otherwise.. 
 
 Exception. — The firm is in no case bound by 
 the acts of a bankrupt^ partner, except as to 
 any other partner who may be liable under 
 Art. 13.* 
 
 Illustrations. 
 
 1. A. and B. are partners. A. hecomes bankrupt. B. 
 gives acceptances of the firm as a security for an existing 
 partnership deht to C, who knows of A.'s bankruptcy. C. 
 indorses the bills for value to D., who does not know of the 
 bankruptcy. D. is entitled to rank as a creditor of the firm 
 for the amount of the biUs.^ 
 
 1 Hendry v. Turner (1886), 32 Ch. D. 355. 
 
 ^ Liadley, i. 412, with slight verbal alteration: Lyon v. Haynes 
 (1843), 5 M. & Gr. 504, 541. 
 
 ' Bankruptcy relates back to the completion of the act of bank- 
 ruptcy on which a receiving order is made : Bankruptcy Act, 1883, 
 s. 43. 
 
 * Lindley, ii. 1134, 
 
 5 Ex parte EoUnson (1833), 3 Dea. & Oh. 376, and 1 Mont. & 
 A. 18. 
 
•c)6 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. 2. A. and B. are partners. A. becomes bankrupt. B. 
 Art. 5 5. continues to carry on the trade of the firm, and pays partner- 
 ship moneys into a hank to meet current bills of the firm. 
 The bank is entitled to this money as against A.'s trustee in 
 bankruptcy.' 
 
 3. A. and B. are partners in trade. A. becomes bankrupt. 
 The solvent partner, B., but not other persons claiming 
 through him by representation or assignment, may, notwith- 
 standing the dissolution of the partnership wrought by A.'s 
 bankruptcy, sell any of the partnership goods to pay the 
 debts of the ■firm,'' and the purchaser will be entitled to the 
 entire property in such goods as against A.'s trustee in 
 bankruptcy.^ 
 
 4. A. and B., sharebrokers in partnership, buy certain 
 railway shares. Before the shares are paid for they dissolve 
 partnership. Either of them may pledge the shares to the 
 bankers of the firm to raise the purchase-money, and may 
 authorize the bankers to sell the shares to indemnify them- 
 selves.'' 
 
 5. A. and B., having been partners in a business, dissolve 
 partnership, and A. takes over the business and property of 
 the firm. If A. gives negotiable instruments in the name of 
 the old firm, then (subject to the rights of creditors of the 
 firm stated in Art. 53) B. is not bound thereby,' unless he 
 has specially authorized the continued use of the name for 
 that purpose." 
 
 6. Partnership articles provide that, before each division 
 of profits, interest shall be credited to both partners on the 
 amount of capital standing to the credit of their respective 
 accounts. This alone does not authorize the allowance of 
 interest, in the event of a dissolution, for the interval between. 
 
 ' Woodhridge v. Swann (1833), 4 B. & Ad. 633. 
 2 Fraser v. Kershaw (1856), 2 K. & J. 496. The authority to sell 
 is "personal to him in his capacity as partner :" p. 501. 
 ' Fox V. Hanhury (1776), Cowp. 445. 
 * Butchart v. Dresser (1853), 4 D. M. G. 542. 
 ' Heath V. Sanson (1832), 4 B. & Ad. 172. 
 « Smith V. Winter (1838), 4 M. & W. 454. 
 
CONSEQUENCES OF DISSOLUTION. 97 
 
 the dissolution and the final settlement of the partnership Chap. VII. 
 accounts.' ■^'^*- ^^' 
 
 7. A., B. and 0. are partners. A. and B. commit acts of 
 bankruptcy, and afterwards indorse in the name of the firm 
 a bill belonging to the partnership. The indorsee acquires 
 no property in the bUl.^ 
 
 8. A. and B. are partners. C. is a creditor of the firm; 
 A., having committed an act of bankruptcy to the knowledge 
 of C.,' pays O.'s debt. This js an unauthorized payment as 
 against the firm, and if the firm afterwards becomes bank- 
 rupt, C. must repay the money to the trustee of the joint 
 estate.* 
 
 9. A. and B. are partners. A. commits an act of bank- 
 ruptcy, and afterwards accepts a bill in the name of the firm 
 for his own private purposes, which comes into the hands of 
 a holder in good faith and for value. B. is liable on the bill, 
 as A. and B. were ostensibly partners with the assent of B. 
 when the acceptance was given.^ 
 
 10. [A. and B. being partners, draw a biU payable to the 
 order of the firm. They dissolve partnership, and A. indorses 
 the bill in the name of the firm, but for his own purposes and 
 without B.'s knowledge, to C, who knows of the dissolution 
 of the firm, but does not know that A.'s indorsement is not 
 for a partnership purpose. B. is liable on the indorsement.^J 
 
 1 BarfieU v. LougMorough (18Y2), 8 Ch. 1. 
 
 " Thomason v. Frere (1808), 10 East, 418. 
 
 3 If 0. had not notice of the act of bankruptcy, he would be pro- 
 tected by s. 49 (a) of the Bankruptcy Act, 1883. 
 
 » Craven v. Edmondson (1830), 6 Bing. 734. 
 
 5 Lacy V. Wookott (1823), 2 D. & E. 458. 
 
 n Lewis V. Beitty (1841), 1 Q. B. 349 : "It is perhaps doing no 
 violence to language to say that the partnership could not be dis- 
 solved as to this bin, so as to prevent it from being indorsed by 
 either defendant in the name of the firm," Lord Denman, C. J., at 
 p. 351. But it is difficult to admit the correctness of the decision : 
 see Lindley, i. 409, 413. The earlier case of Smith v. Winter (1838), 
 4 M. & "W. 454 (not cited in Lewis v. Beilly), assumes that autho- 
 rity in fact must be shown for such a use of the partnership name 
 even for the purpose of hquidating the affairs of the firm. 
 
 P. H 
 
98 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VII. 11. [A., B. and C. are partners in a woollen miU. A. 
 ^^- ^^- dies, and B. and 0. continue the business. D., the owner of 
 the mill, distrains for arrears of rent which were partly due 
 in the lifetime of A. B. and 0. agree with D. that he shall 
 take the partnership fixtures and machinery in satisfaction of 
 the rent, and re-let them to B. and C, the transaction being 
 in fact a mortgage. This does not affect A.'s interest in the 
 fixtures and goods comprised in the conveyance, and D. is not 
 entitled to the entire property in them as against A.'s exe- 
 cutors.'] 
 
 12. A. and B. are partners. A. files a liquidation petition, 
 and a receiver of his property is appointed. B. is stUl 
 entitled to get in the partnership assets, and to use for that 
 purpose the name of the trustee in A.'s baukruptcy, on. 
 giving him an indemnity.^ 
 
 On this subject the language of the Indian Contract 
 Act (s. 263) is more general. It says : 
 
 " After a dissolution of partnersliip, the rights and obli- 
 gations of the partners continue in all things necessary for 
 winding up the business of the partnership." 
 
 And Lord Bldon spoke more than once of a partnership 
 after dissolution as being in one sense not dissolved imtil 
 the affairs of the firm are wound up.* 
 
 Lord Justice Lindley shows, however (i. 411 — 414), that 
 a more guarded statement is at least desirable. He points 
 out that the strongest case on the subject is (with the 
 doubtful exception of Lcicis \. Reillij, Illust. 10, above) 
 ButcJiart v. Dresser (Illust. 4) ; and this decides at most 
 " that in the event of a dissolution it is competent for one 
 
 ' Buckley v. Barher (1851), 6 Ex. 164 ; 20 L. J. Exoh. 114. This 
 decision is not consistent with the general current of authorities, 
 and is probably wrong. It is expressly dissented from by Lord 
 Justice Lindloj' (i. G()6), who further states that it was disapproved 
 in an unreported case by James, L.J. 
 
 a Em parte Owen (18,S4), 13 Q. B. Div. 113. 
 
 ^ Swanst. 508 (1818), see on Art. 47, above; 2 Euss. 337, 342. 
 
CONSEQUENCm OF DISSOLUTION. 99 
 
 3)artiier to dispose of tlie partnership assets for partnership chap. vil. 
 
 purposes." Paulus incidentally mentions the rule as exist- ! ! 
 
 ing in some such limited form ia the Roman law : — 
 
 " Si vivo Titio negotia eius administrare coepi, inter- 
 mittere mortuo eo non debeo ; nova tamen inehoare necesse 
 mihi non est, Vetera explicare ac conservare necessarium 
 •est ; ut accidit, cum alter ex sociis mortuus est."^ 
 
 ' D. 3, 5, de negot. gesft. 21, § 2, 
 
 h2 
 
100 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 CHAPTEE VIII. 
 
 Chap. VIII. 
 Art. 56. 
 
 Rights of 
 partners as to 
 application of 
 partnership 
 property. 
 
 Rights of Partners after Dissolution. 
 
 56. " Every partner lias a right," as against 
 the other partners in the firm and all persons 
 claiming through them in respect of their 
 interests as partners, " to have the property o£ 
 the partnership applied in payment of the debts 
 and liabilities of the firm," and to have the 
 surplus assets after such payment " applied in 
 payment of what may be due to the partners 
 respectively after deducting what may be due 
 from them as partners to the firm ;" ^ and for 
 that purpose any partner or his representatives 
 may, upon the termination of the partnership, 
 apply to the Court to wind up the business and 
 affairs of the firm.^ 
 
 Illustrations. 
 1 . One of the partners in a firm becomes bankrupt. All 
 debts due from him to the firm must be satisfied out of his 
 share of the partnership property before recourse is had 
 to such share for payment of debts due either to any of the- 
 partners on his private account or to any other person.' 
 
 1 Lindley, i. 679, 680. 
 
 2 Common practice ; compare I. C. A. 265. 
 
 3 Croft V. Pike (1733), 3 P. "Wms. 180; and see Ch. xi. Art. 76-79^ 
 belo-w. 
 
MIGHTS OF PARTNERS. 101 
 
 2. A creditor of one partner in a firm on a separate account Chap. VIII. 
 Tinconnected witli the partnership takes Ms share in the part- ^^^- ^^- 
 nership property in execution. He is entitled at most to the 
 
 ^amount of that partner's interest after deducting everything 
 then due from him to the other partners on the partnership 
 ■account ;^ but in such deduction debts due to all or any of the 
 other partners otherwise than on the partnership account are 
 not to be included.^ 
 
 3. A. and B. are partners, having equal shares in their 
 business. A. dies, and B. continues to employ his share of 
 the partnership capital in the business without authority, 
 thereby becoming liable to A.'s estate for a moiety of the 
 profi-ts.^ A.'s estate is entitled not only to a moiety of the 
 ■partnership property, but to a lien upon the other moiety for 
 ■the share of profits due to the estate.* 
 
 4. A. and B. are partners. The partnership is dissolved by 
 agreement, and the agreement provides that B. shall take 
 over the business and property of the firm and pay its debts. 
 B. takes possession of the property and continues the business, 
 but does not pay all the debts, and some time afterwards 
 mortgages a policy of assurance, part of the assets of the late 
 partnership, to C, who knows the facts above mentioned, and 
 also knows that .the policy mortgaged to him is part of the 
 partnership assets. A. or his representatives may require 
 any part of the partnership property remaining in the hands 
 of B. to be applied in payment of the unpaid debts of the 
 firm, but they have no such right as to the policy mortgaged 
 to C. Here C. claims through B. not as partner, but as sole 
 owner, and is not bound to see to the application of his 
 money.* 
 
 The general rule has been thus stated : that " on the Nature of the 
 -dissolution of the partnership all the property belonging OT^uii-lien. 
 
 --1 Wut v. Ship (1749), 1 Ves. Sen. 239, 242; per Lord Mansfield, 
 iFox V. Hanhury {111&), Oowp. at p. 449. 
 
 2 Shipp V. Harwood (1747), 2Swanst. 586; Lindley, i. 682. 
 
 ' See Art. 61, below. 
 
 * Stocken v. Dawson (1845), 9 Beav. 239. 
 
 = Be Langmead's Trusts (1855), 20 Beav. 20 ; 7 D. M. G. 353. 
 
102 DISSOLUTION OF PABTNEBSHIPS. 
 
 Chap. VIII. to the partnersMp shall he sold, and the proceeds of the- 
 ^'^*- °°- sale, after discharging all the partnership dehts and lia- 
 bilities, shall be divided among the partners according to- 
 their respective shares in the capital."' 
 
 The right of each partner to control within certain limits 
 the disposition of the partnership property is a rather 
 peculiar one. It exists during the partnership, and when 
 accounts are taken and the partners' shares ascertained 
 from time to time, its existence is assumed, but it comes 
 into fuH play only in the event of a dissolution. It belongs 
 to a class of rights known as equitable liens, which have 
 nothing to do with possession, and must therefore be care- 
 fully distinguished from the possessory liens which are 
 familiar in several heads of the Common Law. The 
 possessory lien of an rmpaid vendor, factor, or the like, is 
 a mere right to hold the goods of another man until he 
 makes a certain payment ; it does not, as a rule, carry 
 with it the right of dealing with the goods in any way.^ 
 Equitable lien, on the other hand, is nothing else than the 
 right to have a specific portion of property dealt with in a 
 particular way for the satisfaction of specific claims. 
 Against The lien, or quasi-lien,' as it is sometimes called, of each 
 
 able. partner on the partnership properiy is available against 
 
 the other partners, and against all persons claiming an 
 interest in a partner's share as such. We have already 
 seen that an assignee of a pai'tner's share takes it subject 
 to all claims of the other partners (Art. 38). But a pm'- 
 chaser or pledgee of partnership property from a partner, 
 unless he has notice of an actual want of authority to dis- 
 pose of it, is entitled to assume that his money will be 
 
 1 Darhy v. Darhy (18o6), 3 Dre-w^. at p. o03. 
 
 " On the still unsettled question of an unpaid vendor's rights in. 
 this respect, see Page v. Cvwasjee Eduljee (1866), L. E. 1 P. 0. 145. 
 a To 13ouv. ;i86 (1858). 
 
RIGHTS OF PARTNERS. 103 
 
 properly applied for partnership purposes, and may rely Chap. VIII. 
 on the disposing partner's receipt as a complete discharge.^ ! — '. — 
 
 Likewise the individual partners cannot require a judg- 
 ment creditor of the firm to pursue his remedy against the 
 partnership property hef ore having recourse to the separate 
 property of the partners ;^ for, as we have seen above (on 
 Art. 11, p. 21), English law does not recognize the firm 
 as having rights or liabilities distinct from those of the 
 individual partners, and a judgment agaiast a firm of 
 partners is nothing else than a judgment against the 
 partners as joint debtors, and is treated like any other 
 judgment of that nature. There seems to be nothing to 
 alter this in the Rule of Court now in force as to judgments 
 against partners in the name of the firm.^ Creditors, on 
 the other hand, have no specific rights against any pro- 
 perty of the firm except such as they may acquire by 
 actually taking it in execution.* 
 
 During a partnership the hen in question attaches to all Applies only 
 partnership property for the time being. Upon a dissolu- prc^^ty at ^ 
 tion it extends only to the partnership property existing as ^^^ °* ^sso- 
 such at the date of dissolution. Therefore, if one of two 
 partners dies, and the executors of the deceased partner 
 allow the survivor to continue the business of the firm, 
 there will be no lien in their favour on property acquired 
 by him in this course of business in addition to or in sub- 
 stitution for partnership property ; and in the event of the 
 surviving partner's bankruptcy, goods brought into the 
 business by him will belong to his creditors in the new 
 business, not to the creditors of the former partnership.^ 
 
 ^ Langmead's Trusts, see Illust. 4, above. 
 ' Lindley, i. 541, 700. 
 
 ' Eules of the Supreme Court, Order XLII. r. 10 (No. 588); Art. 
 68, below. 
 
 * Stoclcen V. Dawson (1845), 9 Beav. 239. 
 
 5 Payne v. Eornly (1858), 25 Beav. 280, 286-7. 
 
104 
 
 Chap. VIII. 
 Art. 67. 
 
 Sale of good- 
 will on disso- 
 lution. 
 
 Bights and 
 duties of 
 vendor and 
 purchaser of 
 goodwill. 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 It is probable, however, that a surviving partner who 
 insisted on carrying on the business against the will of the 
 deceased partner's representatives would be estopped from 
 showing that property in his hands and employed in the 
 business was not part of the actual partnership assets.^ 
 
 57. On the dissolution of a partnership 
 every partner has a right, in the absence of any 
 agreement to the contrary, to have the goodwill 
 of the business sold for the common benefit of 
 all the partners.^ 
 
 Explanation. — Where the goodwill of a busi- 
 ness, whether carried on in partnership or not, 
 is sold, the rights and duties of the vendor and 
 purchaser are determined by the following rules 
 in the absence of any special agreement ex- 
 cluding or varying their effect : — 
 
 a. The purchaser alone may represent 
 
 himself as continuing or succeeding to the 
 
 business of the vendor.' 
 
 h. The vendor may nevertheless carry on 
 
 1 THs is given as the general rule in Dixon on Partnership, 493, 
 and the rule in Payne v. Hornby as the exception ; and a dictum of 
 Lord Hardwicke's is there cited {West v. Sl-ip, 1749, 1 Yes. Sen. at 
 p. 244), that the lien extends to stock brought in after the determina- 
 tion of the partnership. But this dictum relies on an old case of 
 Bucknal v. Roiston (1'709), Pre. Cli. 2So, which was a. case not of 
 partnership at all, but of a continuing pledge of stock in trade : 
 from which the partner's lien is expressly distinguished in Payne v. 
 Hornhy. 
 
 * Lindley, ii. 860. In other words, the goodwill, and therefore 
 also the firm-name, is part of the partnership assets : Levy v. 
 WaJker (1879), 10 Ch. Div. 436, 446. 
 
 " Churion v. Douglas (1859), Johns. 174. 
 
EIGHTS OF PARTNERS. 105 
 
 a similar business in competition with the chap. viii. 
 
 , , , -^ - „ , Art. 67. 
 
 purchaser, but not under the name oi the 
 
 former firm, nor so as to represent himself 
 as continuing or succeeding to the same 
 business.* 
 
 c. The vendor may publicly advertise his 
 business, and solicit the customers of the 
 former firm.^ 
 
 d. The sale [probably] carries the exclusive 
 right to use the name of the former firm.^ 
 It is doubtful whether the purchaser may use 
 it without qualification if it consists only of 
 the name of the vendor or of any other 
 person who by such use would be exposed to 
 be sued as an apparent partner in the 
 business.* 
 
 e. The foregoing rules apply to the sale 
 by a retiring partner, or a surviving partner, 
 
 1 Churton v. Douglas (1859), Johns. 174. 
 
 ' Labouchere v. Dawson (1872), 13 Eq. 322, laid down a contrary- 
 rule ; but this, after being materially qualified in Leggott v. Barrett 
 (1880), 15 Cai. Div. 306 (overruling Ginesi v. Cooper & Co., 1880, 14 
 -Oh. D. 596), was disapproved by a majority of the C. A. in Pearson 
 V. Pearson (1884), 27 Ch. Div. 145; and Stirling, J., in Vernon v. 
 Hallam (1886), 34 Ch. D. 748, treated Lahoucliere v. Dawson as 
 overruled. See also Walker v. Mottram (1881), 19 Ch. Div. 355. A 
 partner who has been expelled under a provision in the articles is 
 not restrained from carrying on the same business on his own 
 account, or soliciting customers of the old firm : Dawson v. Beeson 
 (1882), 22 Ch. Div. 504. 
 
 =" Levy V. Walker (1879), 10 Ch. Div. 436. 
 
 * Churton v. Douglas (1859), Johns, at p. 190. But the tendency 
 ■of what was said in Levy v. Walker is decidedly towards leaving it 
 ior the vendor in such a case to protect himself against this incon- 
 venience by special conditions. 
 
106 
 
 Chap. VIII. 
 Art. 57. 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 or the representatives of a deceased partner 
 to continuing or incoming partners, or to any- 
 other purchaser of the business of the firm, 
 of his or their share or interest in the good- 
 will of the business carried on by the firm.^ 
 
 Illustrations. 
 
 1. A., B. and C. have carried on business in partnership 
 under the firm of A. and Co. A. retires from the firm on the 
 terms of the other partners purchasing from him his interest in 
 the business and goodwill, andD. is taken in as a new partner. 
 B., C. and D. continue the business under the firm of "B., 
 0. and D., late A. and Co." A. may set up a similar busi- 
 ness of his own next door to them, but not under the firm of 
 A. and Co.° 
 
 2. One of several persons carrying on business in partner- 
 ship having died, the affairs of the partnership are wound up 
 by the Court, and a sale of the partnership assets, including 
 the goodwill, is directed. The goodwill must not be valued 
 on the supposition that any surviving partner, if he does not 
 himself become the purchaser, can be restrained from setting^ 
 up the same kind of business on his own account ;' for " no 
 Court can prevent the late partners from engaging in the 
 same business, and therefore the sale cannot proceed upon 
 the same principles as if a Court could prevent their so 
 engaging."* 
 
 Nature and The term goodwill is a commercial rather than a legal 
 
 incidents of ■ -i r* i j_ xi rv • n i t • 
 
 " o-oodwill." one, nor is its use confined to the attairs oi partnership 
 
 firms. It is well understood in business, but not easy to 
 
 ' The rules are in fact established mainly by decisions on partner- 
 shiiJ cases. 
 
 ^ Ghurton v. Douglas (1859), Johns. 1V4. 
 
 = Hall V. Barroioa (1863), 4 D. J. S. at p. Id9. 
 
 * Lord Eldon's decree in Cvok v. Collingridge (1825), given in 27 
 Beav. 456, 459. The declarations and du-ections there inserted con- 
 tain an exposition of the nature and legal incidents of goodwill to- 
 which there is still little to add in substance. 
 
RIGHTS OF PARTNERS. 107 
 
 define. It has been described as " the benefit arising Chap. vili. 
 
 from connexion and reputation," ^ "the probability of the '. — '— 
 
 old customers going to the new firm " which has acquired 
 the business.^ That which the purchaser of a goodwill 
 actually acquires, as between himself and his vendor, is the 
 right to carry on the same business under the old name 
 (perhaps with such addition or qualification, if any, as may 
 be necessary for the protection of the vendor from UabUity 
 or exposure to litigation under the doctriae of "holding 
 out "), and to represent himself to former customers as the 
 successor to that business. Unless there is an express 
 agreement to the contrary, the vendor remains free to 
 compete with the purchaser in the same line of business ;' 
 he may publish to the world, by advertisements or other- 
 wise, the fact that he carries on such business ; and it seems 
 to be now settled, though for some years it was held other- 
 wise, that he may even specially solicit the customers of 
 the old firm to transfer their custom to him.* But he must 
 not use the name of the old firm so as to represent that he 
 is continuing, not merely a similar business, but the same 
 business. " Tou are not to say, I am the owner of that 
 which I have sold."' Probably the purchasers of the 
 business might successfully object even to his carrying on 
 a competing business in his own name alone, if that name 
 had been used as the name of the late firm and had become 
 
 1 Lindley, ii. 859. 
 
 s Lord Eomilly, M.E., Labouchere v. Dawson (18Y2), 13 Eq. at 
 p. 324; and see Llewellyn v. Rutherford (1875), L. E. 10 0. P. 456; 
 Wedderhurn v. Wedderlurn (1855-6), 22 Beav. at p. 104. 
 
 3 Churton v. Douglas (1859), Johns. 174. 
 
 •* Pearson v. Pearson, 27 Ch.. Div. 145 ; Vernon v. Hallam, 34 Ch.. 
 D. 748 ; see p. 105 above. 
 
 * Churton v. Douglas (1859), Jolins. at p. 193. 
 
108 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. part of its goodwill. ^ Tliese rights of vendors and 
 
 L: — : — purchasers of goodwill clearly belong to the province of 
 
 law, and are capable of legal definition : I have accord- 
 ingly tried to state them distinctly in the exj)lanation 
 annexed to the last article, but for the reasons already 
 indicated I have not sought to define the term goodwill 
 itself. 
 Croodwill does It was formerly supposed that on the death of a partner 
 vive."^™" ™ ^ ^™^ t^® goodwill survived — ^that is, that the surviving 
 partners were entitled to the whole benefit of it without 
 any express agreement to that effect. But it is now 
 perfectly settled that this is not so.^ 
 
 It seems that in the business of solicitors goodwill ia 
 the ordinary sense does not exist.^ The same reasons 
 might apply to any other busiuess depending on personal 
 and confidential relations, and wholly or mainly indepen- 
 dent of local connexion. 
 
 Right of 58. After a dissolution each of the partners 
 
 partners to •jiTTir> i- 
 
 restrain use of m the uissolved. hrm or his representatives may 
 name. [probably], in tlie absence of any agreement to 
 
 the contrary, restrain any other partner or his 
 representatives from carrying on the same 
 business under the partnership name until the 
 affairs of the firm have been wound up and the 
 partnership property disposed of.* 
 
 ' Churton v. Doughs (1SJ9), Jokns. at pp. 197, 198. As to the 
 right to the exclusive use of a trade name, see Art. 11, above. 
 
 ' The notion of the good-will surviving is expressly contradicted, 
 for instance, in Smith \. Everett (1859), 27 Beav. 446. 
 
 " See Austen v. Roys (1858), 2 De G. & J. 626, 635 ; Arundell v. 
 Bell (C. A. 1883), 31 W. E. 477. 
 
 * Lindley, ii. S()2. 
 
BIGHTS OF PARTNERS. 109 
 
 This is maintained by Lord Justice Lindley, notwith- Chap. vili. 
 
 Art. S9. 
 
 standing a certain amount of apparent authority to the con- 
 trary,^ as a necessary consequence of the principle stated in 
 the last article. If any partner who may require it has a 
 right to have the goodwill sold for the common benefit, it 
 cannot be that each partner is also entitled to do that which 
 would deprive the goodwill of all saleable value. There is 
 express authority to show that while a liquidation of partner- 
 ship affairs is pending one partner must not use the name 
 or property of the partnership to carry on busiuess on his 
 own sole account, siuce it is the duty of every partner to do 
 nothing to prejudice the saleable value of the partnership 
 property until the sale.^ This question does not in any 
 case affect the independent right of a late partner who is 
 living and not bankrupt to .restraia the successor to the 
 business from continuing the use of his name therein so as 
 to expose him to the risk of being sued as an apparent 
 partner.' 
 
 After the affairs of a dissolved firm are wound up every 
 partner is free to use the firm-nsime in the absence of agree- 
 ment to the contrary.* 
 
 59. Where one partner has paid a premium Apportion- 
 to another on entering into a partnership for a pre^Li in 
 
 1 Banhs v. Qibaon (1865), 34 Beav. 566, looks at first sight like a 
 direct authority contra. But there it appears that the assets of the 
 firm had been divided by agreement between the late partners and 
 the aSairs of the firm wound up before the suit was brought. The 
 goodwill, in fact, had ceased to exist, the partners having practically 
 waived the right of having its value realized. Thus the decision is 
 not inconsistent with Lord Justice Lindley's reasoning or with the 
 proposition given in the text. 
 
 2 Turner v. Major (1862), 3 Giif. 442. 
 
 3 Scott V. Rowland (18Y2), 20 W. E. 508; see, however, note 4, 
 p. 105, above. 
 
 * Per James, L.J., Levy v. Walker, 10 Ch. Div. 445 (1879). 
 
110 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. 
 Art. 59. 
 
 certain oases 
 where part- 
 nership pre- 
 maturely 
 dissolved. 
 
 fixed term, and the partnerskip is dissolved 
 before the expiration of such term otherwise 
 than by the death of a partner/ there, subject 
 to any special agreement between the partners, 
 the Court may order the premium or a pro- 
 portionate part thereof to be repaid. 
 
 In fixing the proportion of the premium to 
 be returned, the Court has regard to the conduct 
 of the partners, the terms of the partnership 
 contract, and the length of time during which 
 the partnership has continued. 
 
 Illustrations. 
 
 1. A. and B. enter into a partnership for five years, on the 
 terms of A. paying a premium, of £1,050 to B., £500 imme- 
 diately, and the rest by instalments. In the second year of 
 the partnership term, and before the whole of the premium 
 has been paid, A. is adjudicated a bankrupt on the petition of 
 B. B. is not entitled to any further payments on account of 
 the premium, the partnership having been determined by his 
 own act, and he may retain only so much of the part already 
 paid to him as the Court thinks just.' 
 
 2. A. and B. enter into a partnership for a term of years, 
 A. paying a premium to B. Long before the expiration of 
 the term B. becomes bankrupt. 
 
 It has been held that B.'s estate is entitled to the whole 
 premium, because A. bought the right of becoming his part- 
 ner subject to the chance of the partnership being pre- 
 maturely determined by ordinarj- contingencies, such as death 
 or bankruptcy ;* 
 
 78. 
 
 ' See Lindloy, i. T3; Wtincup v. Hughes {1811), L. E. 6 C. P, 
 - Hamil v. Stokes (ISIT), 4 Pii. 161, and better in Dan. 20. 
 " Akharst v. Jackson (1818), 1 Swanst. 85. No stress is laid on 
 the fact that at the commencement of the partnership A. knew that 
 B. was in embarrassed circumstances, which is the only point on 
 
RIGHTS OF PARTNERS. Ill 
 
 And also that B.'s estate must return or give credit for a Chap. VIII. 
 proportionate part of the premium, as the bankruptcy which *•• ' 
 
 ■determined the partnership was B.'s own act.' 
 
 3. A. and B. enter into partnership for fourteen years, B. 
 paying a premium to A. In the course of the same year 
 ■differences arise, there is a quarrel in which, in the opinion 
 of the Court, A. and B. are both to blame, A. excludes B. 
 from the business and premises of the partnership, and B. 
 sues A. for a dissolution of partnership and return of the 
 premium. A. is entitled to retain only so much of the 
 premium as bears the same proportion to its whole amount 
 as the time for which the partnership has actually lasted bears 
 to the whole term first agreed upon.- 
 
 4. A. and B. are partners for a term of fourteen years, B. 
 having paid a premium of £600 to A. At the end of seven 
 years of the term B. gives notice of dissolution to A., under a 
 power contained in the partnership articles, on the ground of 
 A.'s neglect of the business ; and B. claims to have the 
 premium apportioned on the principle of the last illustration. 
 B. is not entitled to the return of half the premium, but only 
 "to such allowance as the Court thinks proper on a general 
 estimate of the case.' 
 
 5. A. and B. enter into partnership for fourteen years, A. 
 paying a premium calculated on two years' purchase of the 
 net profits of the business. The partnership is dissolved 
 within two years in consequence of mutual disagreements. 
 No part of the premium is re-payable.* 
 
 which the case can be distinguished from FreelandY. Stansfeld; see 
 Atwood V. Maude (1868), 3 Oh. at p. 372. 
 
 1 Freeland v. Stansfeld (1852-4), 2 Sm. & G. 479. 
 
 " Bury V. Allen (1844-5), 1 Coll. 589 ; the proportion to be returned 
 or allowed for was calculated on the same principle in Astle v. Wright 
 (1856), 23 Beav. 77 ; Pease v. Hewitt (1862), 31 Beav. 22; Wilson v. 
 Johnstone (1873), 16 Bq. 606. 
 
 3 Bulloch V. Crockett (1862), 3 Giff. 507. There not quite seven 
 years of the term had in fact elapsed, but the Court allowed only 
 £100 to the partner who had paid £600 premium. The same rule 
 of unlimited discretion as to the amount to be returned was acted 
 upon in Freeland v. Stansfeld, supra, 
 
 * Aire^J v. Borham (1861), 29 Beav. 620. 
 
112 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. 
 Art. 59. 
 
 Discrepancy 
 of authori- 
 ties: rule 
 proposed in 
 Wilson V. 
 Johnstone. 
 
 6. A. takes B. into partnership for seven years, knowing- 
 him to be inexperienced in the tusiness, and requires Mm oa 
 that account to pay a premium. After two years A. calls on 
 B. to dissolve the partnership on the ground of B.'s incom- 
 petence, and B. sues A. for a dissolution and the return of an 
 apportioned part of the premium. B. is entitled to the 
 return of such a part of the premium as bears the same 
 proportion to the whole sum which the unexpired period of 
 the term of seven years bears to the whole term.' 
 
 7. A. and B. enter into partnership for fourteen years, A. 
 paying a premium. In the fourth year disputes arise, and a 
 dissolution of the partnership by consent is gazetted. No 
 agreement is made at the time of dissolution fer the return of 
 any part of the premium. A. cannot afterwards claim to have 
 any part of it returned.'' 
 
 It will be seen from the illustrations that no definite rule- 
 can be given which will reconcile the existing authorities. 
 In Wilson v. Johnstone,^ Wickens, V.-C, gave his opinion 
 as to what the rule ought to be on principle. He considered 
 it applicable only to a " premature dissolution by the Court 
 as distinguished from premature dissolution by contract " 
 (this is hardly consistent with the practice as shown in th& 
 reported cases, for in several of them the partners were 
 agreed that there must be a dissolution, and the return or 
 apportionment of the premium was the only matter in dis- 
 pute) : but in the event of a dissolution by the Court the 
 partner who had paid the premium was entitled, he thought, 
 as of right to the retm'n of a part of it proportionate to 
 the time by which the intended term had been shortened, 
 the premium being ti-eated " as if it were an aggregate of 
 yearly payments made in advance " (here the weight of 
 authority is decidedly in favour of this mode of calculation) ; 
 
 • Atwood V. Maude (1868), 3 Oh. 369. 
 - Lee v. Page (1861), 30 L. J. Oh. 857. 
 = 16 Eq. 606 (1873). 
 
BIGHTS OF PARTNERS. 113 
 
 Tinless, indeed, the dissolution were caused by liis own gross Chap. Vlll. 
 
 Art 59 
 misconduct (being something more than simple breach of '- — '. — 
 
 ■duty) in the affairs of the partnership, or he had otherwise 
 ;shown an intention to repudiate the partnership contract 
 altogether.^ 
 
 On the other hand, i£ we might take the rule simply Rule as given, 
 from the judgment in Atwood v. Maude^ still the latest juaude. 
 ■case on the subject in a Court of Appeal, the latter part of 
 it might stand thus : — ■ 
 
 " The Court will order the repayment of the premium, 
 ■or such proportionate part thereof as it thinks just, having 
 Tegard to the terms of the partnership contract and to the 
 length of time during which the partnership has continued ; 
 
 unless the dissolution is, in the judgment of the Court, 
 wholly or chiefly due to the misconduct of the partner 
 who paid the premium ; 
 
 or unless the partnership has been dissolved by an agree- 
 ment in which no provision has been made for a 
 return of any part of the premium. 
 
 In the absence of special reasons to the contrary, the pro- 
 portionate part to be returned is a sum bearing the same 
 proportion to the whole premium as the unexpired part of 
 the partnership term originally contracted for bears to the 
 Tvhole term." 
 
 One cannot help regretting that in deciding Aticood v. 
 Maude^ the Court did not take occasion to overrule expressly 
 some of the former cases. It is now understood, however, 
 that the terms of dissolution are a matter of judicial dis- 
 cretion for the judge who hears the cause, and that his 
 
 ' In Bluch V. CapsUck (1879), 12 Oh. D. 863, where the premium. 
 3)ayable by tlie partner in fault was still unpaid, payment of it was 
 ordered. 
 
 "■ 3 Oh. 369 (1868). , 
 
 P. I 
 
114 
 
 Chap. VIII. 
 Art. 61. 
 
 Kights of 
 defrauded 
 partner where 
 partnership 
 dissolved for 
 fraud. 
 
 Hight of out- 
 going partner 
 in certain 
 cases to share 
 profits after 
 dissolution. 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 decision will not be interfered with by the Court of Appeal 
 except for strong reasons.' 
 
 This kind of relief must be sought at the same time 
 with the dissolution of partnership itself. After decree^ 
 such an application is admissible only on special grounds.^ 
 
 60. Where a partnership contract is re- 
 scinded on account of the fraud of one party to 
 it, the partner defrauded is entitled to a lien 
 on the surplus of the partnership assets, after 
 satisfying the partnership liabilities, for any 
 sum of money paid by him for the purchase of 
 an interest in the partnership property, and is 
 also entitled to stand in the place of the 
 creditors of the firm for any payments made 
 by him in respect of partnership liabilities.^ 
 
 61. Where any member of a firm has died 
 or otherwise ceased to be a partner, and the 
 surviving or continuing partner or partners 
 carry on the business of the firm with his 
 capital or assets, without any final settlement 
 of accounts as between the firm and the out- 
 going partner or his estate, there, in the 
 absence of any special agreement to the con- 
 trary, the outgoing partner or his estate is 
 entitled, at the option of such partner or his 
 representatives, to such share of the profits 
 made since the dissolution as the Court may 
 
 I Lyony. T wed deJl {ISSl), IT Cli.Div. o'ld. 
 • Edmonds v. Rubinson (188 j), 29 Ch. D. 170. 
 » Mycock Y. Beaison (ISTQ), 13 Ch. D. 384. 
 
EIOHTS OF PARTNERS. 115 
 
 find to be attributable to the use of his capital chap. viii. 
 
 or assets, or to the amount of such capital or 
 
 assets with interest thereon at 5 per cent.^ 
 
 Explanation. — How far the profits made since 
 the dissolution are attributable to the outgoing' 
 partners' capital is a question to be determined 
 with regard to the nature of the business, the 
 amount of capital from time to time employed 
 in it, the skill and industry of each partner 
 taking part in it, and the conduct of the parties 
 generally.^ There is no fixed rule that the 
 profits are divisible in the same manner as if 
 the partnership had not ceased.^ 
 
 Illustrations. 
 
 1. A., B. and C. are partners in a manufacture of machinery. 
 A. is entitled to tkree-eightlis of the partnership property and 
 profits. A. tecomes bankrupt, and B. and C. continue the 
 business- without paying out A.'s share of the partnership 
 assets or settling accounts with his estate. A.'s estate is 
 entitled to three-eighths of the profits made in the business 
 from the date of his baniruptcy untU the final liquidation of 
 the partnership affairs.* 
 
 2. A. and B. are partners. The partnership is dissolved 
 by consent, and it is agreed that the assets and business of 
 
 ^ Liadley, ii. 976, 983. Per Lord Cairns, Vyse v. Foster (1874), 
 L. E. 7 H. L. at p. 329 ; Tates v. Finn (1880), 13 Oh. D. 839. 
 
 * Turner, L. J., in Simpson v. Chapman (1853), 4 D. M. G. at 
 pp. 171, 172, following and approving Wigram, V.-C.'s, exposition in 
 Willttt V. Blanford (1841), 1 Ha. 253, 266, 272. 
 
 3 Brown v. De Taatet (1821), Jac. at p. 296. Indeed, the pre- 
 sumption appears to be in favour of apportioning profits to capital 
 without regard to the proportions in which they were divisible 
 during the partnership. Yafes v. Finn (1880), 13 Ch. D. at p. 843. 
 
 4 Graivshay v. Collins (1826), 2 Euss. 325, 342—345, 347. 
 
 l2 
 
IIG DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. the firm shall be sold by auction. A. nevertheless continues 
 to carry on the business on the partnership premises, and 
 with the partnership property and capital, and upon his own 
 account. He must account to B. for the profits thus made.' 
 
 3. A. and B. trade in partnership as merchants. A. dies, 
 and B. continues the business with A.'s capital. B. must 
 account to A.'s estate for the profits made since A.'s death, but 
 the Court will make in B.'s favour such allowance as it thinks 
 just for his skill and trouble in managing the business.^ 
 
 4. A., B. and C. are merchants trading in partnership 
 under articles which provide that upon the death of any 
 partner the goodwill of the business shall belong exclusively 
 to the survivors. A. dies, and B. and C. pay or account for 
 interest to his legatees, upon the estimated value of his share 
 at the time of his death, but do not pay out the capital 
 amount thereof. The firm afterwards make large profits, but 
 the nature of the business and the circumstances at the time 
 of A.'s death were such that at that time any attempt to 
 realise the assets of the firm or the amount of A.'s share 
 would have been highly imprudent, and would have en- 
 dangered the solvency of the firm, so that A.'s share in the 
 partnership assets if then ascertained by a forced winding-up 
 would have been of no value whatever. Under these circum- 
 stances the profits made in the business after A.'s death are 
 chiefly attributable, not to A.'s share of capital, but to the 
 goodwill and reputation of the business and the skill of the 
 surviving partners, and A.'s legatees have no claim to parti- 
 cipate in such profits to any gi-eater extent than the amounts 
 already paid or accounted for to them in respect of interest 
 on the estimated value of A.'s share.' 
 
 5. The facts are as in the last illustration, except that the 
 articles do not provide that the goodwill shall belong to 
 surviving partners. The deceased partner's estate is entitled 
 to share in the profits made since his death and attributable 
 to goodwill in a proportion corresponding to his interest in 
 
 1 Tiirutr V. Major (l.S(i2), 3 Giff. 442. 
 
 ' 2(j'OT«»iv.Z)e2'«s«(*(1821), Juc. 284, 290; cp. i'uies v. -Ftnn (1880) 
 13 Ch. D. 839. 
 " U'i.ddertiuriix. irceWccii/rn (18od-6), 22 Beav. 84, 123 124. 
 
BIOETS OF PARTNERS. 117 
 
 the value of the goodwill itself as a partnership asset. The Chap. VIII. 
 evidence of experts in the particular business wiU be admitted, ^^^- ^^- 
 if necessary, to ascertain how much of the profits was attribu- 
 table to goodwill.' 
 
 6. A. and B. are partners, sharing profits equally, in a 
 business in which A. finds the capital and B. the skill. B. 
 dies before there has been time for his sMU in the business 
 to create a goodwill of appreciable value for the firm. A. 
 continues the business of the firm with the assistance of other 
 stilled persons. B.'s estate is [probably] not entitled to any 
 share of the profits made after B.'s death. 
 
 7. The other facts being as in the last illustration, B. dies 
 after his skill in the business has created a connexion and 
 goodwill for the firm. B.'s estate is [probably] entitled to a 
 share of the profits made after B.'s death.^ 
 
 62. Where by the partnership contract an Exercise of 
 
 , . . . , . . , • • option to pur- 
 
 option IS given to surviving or continuing ohase out- 
 partners to purchase the interest of a deceased fer's^Btare. 
 or outgoing partner, and that option is duly- 
 exercised, the estate of the deceased partner, or 
 the outgoing partner or his estate, as the case 
 may be, is not entitled to any further or other 
 share of profits; but if any partner assuming 
 to act in exercise of the said option does not in 
 all material respects comply vrith the terms 
 thereof, he is liable to account for subsequent 
 profits under the last preceding article.^ 
 
 Illustrations. 
 1. A., B. and C are partners under articles which provide 
 that, on the death of A., B. and C. or the survivor of them 
 
 1 See 22 Beav. at pp. 104, 112, 122 (1855-6). 
 ° These last two cases are given by Wigram, V.-C, in his judg- 
 ment in WilhU V. Blanford (1841), 1 Ha. at p. 271. 
 3. Vyse V. Foster (1874), L. E. 7 H. L. at p. 329. 
 
118 
 
 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. 
 Art. 62. 
 
 Claims 
 against 
 surviving or 
 contimiing 
 partners as 
 executors or 
 trustees. 
 
 may continue the business in partnership -with A.'s represen- 
 tatives or nominees, taking at the same time an increased 
 share in the profits ; and that, in that case, B. and C. or 
 the survivor of them shall enter into new articles of partner- 
 ship, pay out in a specified manner the value of the part of 
 A.'s interest taken over, and give certain security to A.'s 
 representatives. B. dies, then A. dies. C. carries on the 
 business without pursuing the provisions of the articles as to 
 entering into new articles, or paying out the value of the 
 part of A.'s interest which he is entitled to acquire, or giving 
 security. 0. must account to A.'s estate for subsequent 
 profits.^ 
 
 2. A., B. and C. are partners under articles which provide 
 that in case of the death of any partner the value of his share 
 shall be ascertained as therein provided, with an allowance 
 in lieu of profits at the rate of 5 per cent, per annum upon his 
 share of the capital, and that the moneys found to be due to 
 his executors shall be taken in full for the purchase of his 
 share, and shall be paid out in a certain manner by instal- 
 ments extending over two years. A. dies. B. and C. ascer- 
 tain the amount of his share, and pay interest thereon to his 
 representatives, but, acting in good faith for the benefit of 
 the persons interested, they do not pay out the capital within 
 the two years. This delay in making the complete pajTuent 
 out is not a material non-compliance with the terms of the 
 option of purchase, and B. and C. cannot be called upon to 
 account to A.'s estate for profits subsequent to A.'s death.' 
 
 The reader who is already acquainted with the cases 
 now cited by way of iUustration ya\l perceive that several 
 of them have deen designedly simplified in statement. It 
 often happens that a partner in a firm disposiag of his 
 interest in it by will, and not desii-iag the affairs of the 
 firm to be exposed to the interference of strangers, makes 
 his fellow-partners or some of them liis executors or trus- 
 tees, or includes one or more of tliem among the persons 
 
 • WiUett V. Blanford (1841), 1 Ha. 253, 264. 
 2 Vijse V. Foiter (1874), L. E. 7 H. L. 318. 
 
RIGHTS OF PARTNERS, 119 
 
 appointed to tliose offices. If, having done this, he dies Chap. Vlll. 
 
 Art 62 
 while the partnership is subsisting, there may arise at the '- — '■ — 
 
 toations. 
 
 same time, and either wholly or in part in the same persons, 
 two kinds of duty in respect of the testator's interest 
 which are in many ways alike in their nature and incidents, 
 but must be nevertheless kept distinct. There is the duty 
 of the surviving partners as partners towards the deceased 
 partner's estate ; and of this we have just spoken. There 
 is also the duty of the same persons, or some of them, as 
 executors or trustees towards the persons beneficially iute- 
 rested in that estate ; and this is determined by principles 
 which are really independent of the law of partnership. 
 
 The nature of these complications and the distinctions These dis- 
 to be observed may be exhibited by some further illustra- further illua- 
 tions. 
 
 3. A. and B. are partners. A. dies, having appointed B. 
 his sole executor, and B. carries on the trade with A.'s 
 ■capital. Here B. is answerable to A.'s estate as partner, and 
 A.'s executor, if he were a person other than B. himself, would 
 be the proper person to enforce that liahiHty. B. is also 
 answerable as executor to the persons beneficially interested 
 in A.'s estate for the improper employment of his testator's 
 ■assets. 
 
 4. A., a trader, appoints B. his executor and dies. B. enters 
 into partnership with 0. and D. in the same trade, and 
 •employs the testator's assets in the partnership business. B. 
 gives an indemnity to C. and D. against the claim of A.'s 
 residuary legatees. Here C. and D. are jointly liable with B. 
 to A.'s residuary legatees, not as partners, but as having 
 knowingly made themselves parties to the breach of trust 
 ■committed by B.' 
 
 5. A. being in partnership with B. and 0. appoints B. his 
 •executor and dies. B. and C. continue to eniploy A.'s capital 
 in the business. B. is Hable as executor to account for the 
 
 Flockton V. Sunning (1868), 8 Oh. 323, n. 
 
120 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. profits received by himself from the use of A.'s capital, but;. 
 ^^- ^^- not for the whole profits received therefrom by the firm.' 
 
 6. A. and B. are partners in trade. A. dies, having' 
 appointed C. and D. his executors, and authorized them to. 
 continue his capital in the trade for a limited time. On the 
 expiration of that time C. and D. do not withdraw their 
 testator's capital, but leave it as a loan to the firm, B. and E., 
 the then members of the firm, knowing the limit of the- 
 authority given by A.'s will, and knowing the fund to belong- 
 to A.'s estate. B. and E. are not liable to render to the 
 persons interested under A.'s will an account of profits sinca 
 the time when A.'s capital ought to have been finally with- 
 drawn, inasmuch as C. and D. themselves are liable to A.'a 
 legatees only to make good the amount of the capital with 
 interest." 
 
 7. If the other facts are as in the last illustration, but B., one- 
 of A.'s executors, is himself a member of the firm, C. and D., 
 the other executors, are still not accountable for any share of 
 profits.' B. cannot be charged as executor with a greater 
 share of profits in respect of his testator's capital than he has 
 actually received,* and it is doubtful whether he can be- 
 charged with profits at all.' 
 
 8. A., B. and C. are partners in a bank which is carried on 
 upon the known private credit of the partners, and with little 
 or no capital. A. dies, having appointed C. and D. his- 
 executors. At the time of A.'s death his debt to the bank on. 
 his private account exceeds his share in the assets. B. and C. 
 take D. into partnership, and continue the business without 
 paying out A.'s share. C. and D. ai-e not accountable as 
 executors for any share of the profits since A.'s death, as A^ 
 really left no capital in the business to which such profits 
 could be attributed, and D. entered the partnership and 
 shared the profits not as executor, but on his own private- 
 
 ' Per Lord Cairns, L. E. "i H. L. 33-1 (1874). 
 
 "• Stroud V. Owyer (1860), 128 Beav. 130. 
 
 1 Tj/sc V. J^os<cr (1874), L. E. 7H.L.318; see per Lord Selborne,. 
 at p. 346. 
 
 * Jones V. Fomll {\^b'l), \o Beav. 388 ; per James, L. J., Vyse v. 
 Foster (1872), 8 Ch. at pp. 333, 334. 
 
BIQHTS OF PART NEBS. .121 
 
 account. In like manner B., C. and D. are [probably] not chap. VIII. 
 accountable to A.'s estate as partners.' ^^^- ^^- 
 
 In these "mixed and difficult" cases, as Lord Justice Claims must 
 Lindley calls them,^ it is important for persons seeking to and against 
 assert their right to an account of profits to make up their fn°pifoper ^^* 
 minds distinctly in what capacity and on the score of what capacity ; 
 duty they will charge the surviving partners or any of 
 them. If they proceed against executors as such for what 
 is really a partnership liability, if any, and without bringing 
 all the members of the firm before the Court, failure will 
 be the inevitable result.' In a single case where one 
 surviving partner out of several was held solely liable for 
 the profits made by the employment of a deceased partner's 
 capital by the firm, there was in fact only a sub-partnership 
 between this survivor and the deceased : and it was there- 
 fore held that the other members of the principal firm were 
 under no duty to the estate of one who was not their 
 partner at all, and were not necessary or proper parties to 
 be. sued.* 
 
 Again, the right, where it exists, is an alternative right and must be 
 
 . .1. n ■ -, • T T • ^™ profits 
 
 to interest on the capital improperly retamed m the busi- alone, or for 
 ness or to an account of the profits made by its use ; and 
 one or other of these alternatives must be distinctly chosen. 
 A double claim for both profits and interest is of course in- 
 admissible, and it has been laid down that a mixed claim 
 is equally so. " If relief can be obtained on the footing of 
 an account of profits, it must be an account of profits and 
 
 1 Simpson v. Chapman (1853), 4 D. M. G. 154. 
 
 2 ii. 978. 
 
 2 See Simpson v. Chapman (1853), 4 D. M. G. 154; VyseY. 
 Foster (1874), L. E. 7 H. L. 318'; Travis v. 31ilne (1851), 9 Ha. at 
 p. 149. 
 
 Sroun V. Be Tasttt (1821), Jac. 284; see Art. 38, above. 
 
 interest alone. 
 
122 
 
 DISSOLUTION OF PAETNEBSHIPS. 
 
 Chap. VIII. 
 Art. 62 
 
 Account of 
 profits after 
 dissolution 
 useless in 
 practice. 
 
 What interest 
 given. 
 
 Surviving 
 partner not a 
 trustee. 
 
 Statute of 
 Limitation. 
 
 nothing else ; " a claim for profits as to pajri; of tlie time 
 over which the dealing extends, and interest as to other 
 part, or for profits against some or one of the surviving 
 partners, and interest against others, cannot he allowed.^ 
 
 It is a question, however, whether success in asserting 
 claims of this kind is not in practice little more ijrofitable 
 than failure ; for an account of profits after dissolution has 
 seldom or never been kno^vn to produce any real benefit to 
 the parties who obtained it.^ 
 
 Where interest is given, it is generally simple interest at 
 5 per cent. It does not appear that a partner as such is 
 ever charged with compound interest in these eases. A 
 trustee-partner may in his quality of trustee be charged 
 with compound interest at 5 per cent., if the retention of 
 the fund in the hands of the firm, even as a loan, was a 
 distract and specific breach of trust.^ 
 
 A surviving partner is sometimes said to be a trustee for 
 the deceased partner's representatives in respect of his in- 
 terest in the partnership ; but this is a metaphorical and 
 inaccurate expression. The claim of the representatives 
 against the surviving partner is ia the nature of a simple 
 contract debt, and is subject to the Statute of Limitation, 
 which runs from the deceased partner's death. The receipt 
 of a particular debt due to the firm after six years have 
 elapsed from that date does not revive the right to demand 
 a general account.* 
 
 ' Per Lord Cairns, Vyse v. Foster (1S74), L. E. 7 H. L. at p. 336. 
 
 ' Lindley, ii, 990, ;(..• " The writer is not aware of any instance 
 in ■which such a decree has been worked out and has resulted bene- 
 ficially to the person in whose favour it was made." 
 
 s As in Jones v. Fcxall (18o2), 1 J Beav. 388. 
 
 « Knox V. Gtje (ISTl-:"), L. E. 5 H. L. 656, see per Lord West- 
 bury, 
 
accounts. 
 
 EIGHTS OF PARTNERS. 123 
 
 63. In settling accounts between the partners chap. viii. 
 
 Art. 63. 
 
 after a dissolution of partnership, the following — — 
 rules are to be observed (subiect as to the pay- tributionof 
 
 ^ . \ assets on final 
 
 ments to partners to any special agreement) : settlement of 
 Losses are to be paid first out of profits, next 
 
 out of capital, and lastly, if necessary, by the 
 
 partners individually in the proportion in 
 
 which they were entitled to share profits. 
 
 The assets of the firm are to be applied in 
 
 the following manner and order : 
 
 1 . In paying the debts and liabilities of the 
 
 firm to persons who are not partners 
 therein : 
 
 2. In paying to each partner rateably what 
 
 is due from the firm to him for advances 
 as distinguished from capital : 
 
 3. In paying to each partner rateably what 
 
 is due from the firm to him in respect 
 of capital : 
 
 4. The ultimate residue, if any, is divisible 
 
 among the partners in the proportion in 
 which profits are divisible under the 
 partnership contract.^ 
 Explanation. — Deficiencies of capital, in what- 
 
 ' Almost verbally from Lindley, i. 806. Compare the form of 
 order fully stated in the judgment of the Judicial Committee, 
 Binney v. Mutrie (1886), 12 App. Ca. 160, 165. Where partnership 
 assets are administered by the Court in an action, debts from 
 the firm to a partner are payable out of the assets before the costs 
 of the action : Potter v. Jackson (1880), 13 Ch. D. 845. 
 
124 DISSOLUTION OF PARTNERSHIPS. 
 
 Chap. VIII. ever shares originally contributed by the part- 
 
 ners, are to be treated, subject to any special 
 
 agreement, as partnership losses.^ 
 
 1 NowellY. Nowell (1869), 7 Eq. 538; WhitcomheY. Converse (ISTo),. 
 119 Mass. 38. In other words, money due from tie firm to a part- 
 ner in respect of capital contributed, not being a distinct advance, is 
 diilerently treated from money due for advances only in the one 
 point of ranking after it. In itself it is a partnership debt, to be 
 made up by contribution, if the assets are insufficient, in the same- 
 way as other partnership losses. 
 
PROCEDURE IN ACTIONS. 125 
 
 PART III. 
 
 331-oaOure anij ^Umtntstratton* 
 
 CHAPTER IX. 
 
 Procedure in Actions hy and against Partners. 
 
 64. " Ant two or more persons claiming or chap. ix. 
 
 being liable as co-partners may sue or be sued '- — '- — 
 
 in tbe name of the respective firms, if any, of sue and be 
 
 , . , , 1 I T 1 • sued in name 
 
 wnicn such persons were co-partners at the time of firm. 
 of the accruing of the cause of action ; and any 
 party to an action may in such case apply by 
 summons to a Judge for a statement of the 
 names of the persons who were, at the time of 
 the accruing of the cause of action, co-partners ■ 
 in any such firm, to be furnished in such 
 manner, and verified on oath or otherwise, as 
 the Judge may direct. Provided that, in the 
 case of a co-partnership which has been dis- 
 solved to the knowledge of the plaintifE before 
 the commencement of the action, the writ of 
 summons shall be served upon every person 
 sought to be made liable." ^ 
 
 1 Eules of the Supreme Court, Ord. XVI. r. 14 (No. 136). The 
 ■words " of whicli such persons were co-partners at the time of the 
 
126 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Chap. IX. 
 Art. 65. 
 
 Sole trader 
 under firm 
 same. 
 
 The Eules also provide for the case of " any person 
 carrying on business in the name of a firm apparently con- 
 sisting of more than one person" being sued in the fiim- 
 name. The writ may be served at the principal place of 
 business in the same way as under Order IX. r. 6 (Art. 65, 
 below : Order IX. r. 7). The person sued is to appear in 
 his own name, but subsequent proceedings continue in the 
 name of the firm : Order XII. r. 16. 
 
 Discovery of 
 individual 
 partners in 
 actions by 
 firm. 
 
 66. " When a writ is sued out by partners 
 in the name of their firm, the plaintifPs or 
 their solicitors shall, on demand in writing bj 
 or on behalf of any defendant, forthwith 
 declare in writing the names and places of 
 residence of all the persons constituting the 
 firm on whose behalf the action is brought. 
 i\nd if the plaintiffs or their solicitors shall 
 fail to comply with such demand, all proceed- 
 ings in the action may, upon an application 
 for that purpose, be stayed upon such terms as 
 the Court or a Judge may direct. And when 
 the names of the partners are so declared, the 
 action shall proceed in the same manner and 
 the same consequences in all respects shall 
 follow as if they had been named as the 
 plaintiffs in the writ. But all proceedings 
 
 accruing of the cause of action," introduced on the revision of th& 
 Eules of Court in 1883, remove a troublesome doubt which had 
 arisen on the former language of the Eule. See Ex parte Yoinuj 
 (1881), 19 Ch. Div. 124; Munster v. Ramon (1883), U Q. B. Div. 
 435, in II. L. nom. Mumter v. Cox (ISSo), 10 App. Ca. 680. 
 
PROCEDURE IN ACTIONS. 127 
 
 shall nevertheless continue in the name of cba^. ix. 
 
 Art. 66. 
 
 the firm. "^ • 
 
 66. "Where persons are sued as partners in Service of 
 the name of their firm, the writ shall be served against firm, 
 either upon any one or more of the partners, or 
 
 at the principal place within the jurisdiction of 
 the business of the partnership upon any person 
 having at the time of service the control or 
 management of the partnership business there." 
 Subject to compliance in other respects with 
 the Rules of Court, such service is good service 
 upon the firm.^ 
 
 67. " Where persons are sued as partners Appearance 
 
 of partners 
 
 in the name of their firm, they shall appear individually. 
 individually in their own names : but all sub- 
 sequent proceedings shall nevertheless continue 
 in the name of the firm."^ 
 
 68. "Where a judgment or order is against Execution 
 
 . upon judg- 
 
 a firm,* execution may issue : ment against 
 
 A • 1 • the firm. 
 
 " a. Against any property of the partnership: 
 " b. Against any person who has appeared 
 
 in his own name under Order XII. 
 
 Rule 15, or who has admitted on the 
 
 1 Order VII. r. 2 (No. 43). 
 
 2 Order IX. r. 6 (No. 33). 
 
 = Order XII. r. 15 (No. 85). Where only one member of tlie 
 firm enters an appearance, judgment cannot be signed against the 
 firm for default of appearance: Adam v. Townend (1884), 14 
 Q. B. D. 103. 
 
 ' It must be in this form if the writ in the action was issued 
 against the partnership in the firm-name : Jachson v. Litchfield 
 (1882), 8 Q. B. Div. 474. 
 
128 PROCEDURE AND ADMINISTRATION. 
 
 Chap. IX. pleadings that he is, or who has been 
 
 adjudged to be, a partner : 
 
 " c. Against any person who has been served 
 as a partner^ with the writ of summons 
 and has failed to appear. 
 
 " If the party who has obtained judgment or 
 an order claims to be entitled to issue execution 
 against any other person as being a member of 
 the firm, he may apply to the Court or a Judge 
 for leave so to do : and the Court or Judge may 
 give such leave if the liability be not disputed, 
 or if such liability be disputed, may order that 
 the liability of such person be tried and deter- 
 mined in any manner in which any issue or 
 question in an action may be tried and deter- 
 mined." ^ 
 
 The new These rules, it will be observed, do not introduce any- 
 
 does net thing that amounts to the recognition of the firm as an 
 
 firm^aTrdis- fi^tificial person distinct from its members.' They allow 
 
 tinct person, the name of the firm to be used for the pxirpose of making 
 
 procedure quicker and easier ; and creditors of a firm have 
 
 now the great practical convenience of being able to pursue 
 
 their claims even to judgment without first ascertaining 
 
 who all the partners are. The substantive results, however, 
 
 ' This means actual service on that person : Ex parte /cie(18S3), 
 11 Q. B. Div. 735, 758. 
 
 2 Order XLII. r. 10 (No. 588). 
 
 ' " We have not j^et introduced into our law the notion that a 
 firm is a persona." James, L. J., Ex parte Blain, 12 Ch. Div. at 
 p. 533 (1879). The changes in language in the Rules of 1SS3 
 rather tend to make it plainer than before that such was not the 
 intention of the Judicature Acts. 
 
PROCEDURE IN ACTIONS. 129 
 
 ;are the same as under tlie former practice ; and a judgment Chap. ix. 
 against the firm has precisely the same effect that a judg- ^ ' ' 
 ment against all the partners had formerly. An action 
 may be brought on the judgment against an individual 
 member of the firm who is not admitted on the pleadings 
 to be a partner.^ Nor is it quite clear that actions between 
 a firm and one of its own members, or between two firms 
 having a common member, are now maintainable in the 
 firm-name or names in England, as they always have been 
 in Scotland : ^ Lord Justice Lindley, however, is of opinion 
 that the allowance of them is involved in the new pro- 
 cedure.' 
 
 Order XLY. does not enable a garnishee order to be vGarnishee 
 made for the attachment of a debt due from a firm de- °^ ^™" 
 scribed by its firm-name, as no means of serving or enforcing 
 such an order are provided.* 
 
 In bankruptcy an order of adjudication cannot be made Adjudication 
 against a firm in the firm-name. It must be made against banlmTpteT ™ 
 the partners individually.' A creditor who has obtained 
 judgment against the firm, but has not got leave to issue 
 individual execution under this order, cannot issue a bank- 
 ruptcy notice under the Act of 1883 against individual 
 members of the firm.^ 
 
 1 Clark V. CuUen (1882), 9 Q. B. D. 355. But where an action 
 commenced against tlie firm is prosecuted against one partner only, 
 and judgment taken against Mm by consent, the plaintiff is not 
 allowed to turn Ms judgment, by amendment, into a judgment 
 against the firm in order to issue execution against another alleged 
 partner : Munster v. Cox (1885), 10 App. Ca. 680. 
 
 * See Second Eeport of Mercantile Law Commission, p. 18, and 
 Appendix B thereto, p. 141 ; Bell, Principles of Law of Scotland, 
 5 357. 
 
 ^ See p. 23 above. 
 
 •^ Walker v. Eooke (1881), 6 Q. B. Div. 631. 
 
 6 General Eules of 1884, 197. 
 
 6 Ex parte Ide (1886), 17 Q. B. Div. 755. 
 
 P. K 
 
130 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Chap. X. 
 Art. 69. 
 
 Consolidatiou 
 of proceedings 
 under joint 
 and separate 
 petitions. 
 
 CHAPTER X. 
 Procedure in Bankruptcy ac/ainst Partners. 
 
 69. " WiiEEE two or more bankruptcy peti- 
 tions are presented against the same debtor or 
 against joint debtors, the Court may consolidate 
 the proceedings, or any of them, on such terms 
 as the Court thinks fit." ^ 
 
 Illustration. 
 
 A. and B. are partners in trade, A. being the sole managing 
 partner. C., a creditor of tlie firm, presents a bankruptcy 
 petition against A. alone. Before the hearing of this petition 
 C. presents another petition against A. and B. jointly. The 
 Court "will consolidate the proceedings under the separate 
 petition "with those under the joint petition.- 
 
 Creditor of 
 firm may 
 present peti- 
 tion against 
 one partner. 
 
 Court may 
 dismiss peti- 
 tion as to 
 some respon- 
 dents only. 
 
 70. " An}' creditor whose debt is sufficient 
 to entitle him to present a bankruptcy petition 
 against all the partners of a firm may present a 
 petition against any one or more partners of 
 the firm Avithout including the others."' 
 
 71. " Where tliere arc more respondents 
 than one to a petition, the Court may dismiss 
 
 1 Bankruptcy Act, 1883 (46 i.*t 47 A'ict. c. 5L'), s. 106. 
 
 '• E.i- parte Mad-mzif (187.5), 20 Eq. 7o8. 
 
 3 Bankruptcy Act, 1883 (46 & 47 A'ict. c. o2), s. 110. 
 
BANKRUPTCY PROCEDURE. 131 
 
 the petition as to one or more of tlieni without chap. x. 
 
 . . . Art. 72. 
 
 prejudice to the effect of the petition as against 
 
 the other or others of them." ^ 
 
 72. "Where a receiving order has been One trustee 
 made on a bankruptcy petition against or by of'partners^n 
 one member of a partnership, any other bank- separately 
 ruptcy petition against or by a member of the ^^ ™^ ' 
 same partnership shall be filed in or transferred 
 
 to the Court in which the first-mentioned peti- 
 tion is in course of prosecution, and unless the 
 Court otherwise directs, the same trustee or 
 receiver shall be appointed as may have been 
 appointed in respect of the property of the 
 first-mentioned member of the partnership, and 
 the Court may give such directions for consoli- 
 dating the proceedings under the petitions as it 
 thinks just." ^ 
 
 73. "If a receiving order is made against Creditor of 
 
 n n T 1 &nD. may 
 
 one partner oi a firm, any creditor to whom prove in 
 that partner is indebted jointly with the other bankruptcy 
 
 , p ii y i> n for purpose of 
 
 partners oi tne firm, or any oi them, may prove voting. 
 his debt for the purpose of voting at any 
 meeting of creditors, and shall be entitled to 
 vote thereat."^ 
 
 > Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 111. 
 
 ° Ih.s. 112. When a trustee of the joint estate is duly appointed, 
 the separate estates also vest in him at once : Ex parte Philps (1874), 
 19 Eq. 256; Re WaddelVs Contract {\9,1&), 2 Oh. D. 172; and see 
 Ebbs Y. Boulnois (1875), 10 Oh. 479. 
 
 3 lb. sched. 1, rule 13. As to the distribution of the estates, see 
 further, Articles 76-79, below. 
 
 k2 
 
132 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Chap. X, 
 Art. 74. 
 
 Dmdends of 
 joint and 
 separate pro- 
 perties. 
 
 Actions by 
 trustee and 
 solvent part- 
 ners. 
 
 74. "(1.) Where one partner of a firm is 
 adjudged bankrupt, a creditor to whom the 
 bankrupt is indebted jointly with the other 
 partners of the firm, or any of them, shall not 
 receive any dividend out of the separate pro- 
 perty of the bankrupt until all the separate 
 creditors have received the full amount of their 
 respective debts. 
 
 (2.) " "Where joint and separate properties 
 are being administered, dividends of the joint 
 and separate properties shall, subject to any 
 order to the contrary that may be made by the 
 Court on the application of any person in- 
 terested,^ be declared together ; and the ex- 
 penses of and incident to such dividends shall 
 be fairly apportioned by the trustee between 
 the joint and separate properties, regard being 
 had to the work done for, and the benefit re- 
 ceived by each property."^ 
 
 75. " Where a member of a partnership is 
 adjudged bankrupt, the Court may authorize 
 the trustee to commence and prosecute any 
 action in the names of the trustee and of the 
 bankrupt's partner ; and an}- release by such 
 partner of the debt or demand to which the 
 action relates shall be void ; but notice of the 
 application for authority to commence the action 
 shall be given to him, and he may show cause 
 
 • See Ex parte Dickin (1875), 20 Eq. 767. 
 ' Bankruptcy Act, 1883, s. 59. 
 
BANKRUPTCY PROCEDURE. 133 
 
 against it, and on his application the Court chap. x. 
 
 Art. 7o. 
 
 may, if it thinks fit, direct that he shall receive 
 
 his proper share of the proceeds of the action, 
 and if he does not claim any benefit therefrom 
 he shall be indemnified against costs in respect 
 thereof as the Court directs." ^ 
 
 1 lb. s. 113. 
 
134 
 
 procedvue and administration. 
 
 CHAPTER XI. 
 
 Chap. XI. 
 Art. 76. 
 
 General rule 
 of administra- 
 tion as to joint 
 and separate 
 estate. 
 
 Administration of Partnership Estates. 
 
 76. In the administration by tlie Higli Court 
 of Justice of the estates of deceased partners 
 and of bankrupt and insolvent partners, the 
 following rules are observed : — 
 
 The partnership property is applied adjoint 
 estate in payment of the debts of the firm/ 
 and the separate property of each partner is 
 applied as separate estate in payment of his 
 separate debts. 
 
 After such payment tlie surplus, if any, of 
 the joint estate is applied in pajTuent of the 
 separate debts of the partners, or the sm'plus, 
 if any, of the separate estate is applied in 
 payment of the debts of the firm. 
 
 Illustrations. 
 
 1. A. and B. are in partnership. A. dies, and his estate 
 is administered by the Court. Both A.'s estate and B. are 
 solvent. Here A.'s separate creditors and the creditors of A. 
 and B.'s firm may prove their debts against A.'s estate and be 
 paid out of his assets pari passu and in the same manner. 
 
 ' That is, to persons other than partners : see Art. 79. 
 
AD2IINISTBATI0N OF ESTATES. 135 
 
 The payments thus made to creditors of the firm must then Chap. XI. 
 he allowed hy B. in account with A.'s estate as payments ■^'^''- '''^- 
 made on hehalf of the firm, and A.'s estate will be credited 
 accordingly in ascertaining what is A.'s share of the partner- 
 ship property.^ 
 
 2. The facts being otherwise as in the last illustration, A.'s 
 ■estate is insolvent, and the creditors of the firm proceed to 
 recover the full amount of their debts from the solvent partner, 
 B. Here B. will become a creditor of A.'s separate estate for 
 the amount of the partnership debts paid by B. beyond the 
 proportion which he ought to have paid under the partnership 
 contract.^ 
 
 3. If B. is also insolvent, the creditors of the firm must 
 resort in. the first instance to the partnership property, and 
 ■can only come against so much of the separate property of the 
 partners as remains after paying their separate creditors re- 
 spectively : and the same rule appHes if both A. and B. have 
 •died before the administration takes place.^ 
 
 4. A. and B. are partners. A. dies, and B. afterwards 
 becomes bankrupt. M., a creditor of the firm, proves his 
 -debt in B.'s bankruptcy, and receives some dividends wliich 
 satisfy it only in part. A.'s estate is administered by the 
 'Court, and M. proves in that administration for the residue of 
 his debt. Separate creditors of A. also prove their debts. M. 
 has no claim upon A.'s estate until all the separate creditors 
 •of A. have been paid.^ 
 
 5. A. and B. are partners under articles which provide that, 
 in the event of A.'s death during the partnership, B.'s interest 
 in the profits shall thenceforth belong to A.'s representatives, 
 B. receiving a sum equivalent to his share of profits for six 
 months, to be ascertained as therein provided, and the amount 
 of his capital. A. dies, having appointed B. his executor. B. 
 carries on the business for some time, and then becomes a 
 liquidating debtor. The partnership property existing at the 
 •date of A.'s death is not converted into A.'s separate property 
 
 1 Ridgiuay v. Clare (1854), 19 Beav. at p. 116. 
 
 2 Ibid. 
 
 = /J. at pp. 116, 117. 
 
 ^ Lodge v. Prichard (1863), 1 D. J. S. 610. 
 
136 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. by the provisions of the partnership articles, and such pro- 
 ^'^'^- ''^- perty, so far as it is still found in B.'s hands at the time of 
 liquidation, is applicable in the first instance as joint estate tO' 
 pny the creditors of the firm.' 
 
 6. A. and B. are partners for a term, A. not having brought 
 in any capital, but receiving a share of the profits as a working- 
 partner. The partnership deed provides that, if A. dies, 
 during the term, his representatives shall receive only an ap- 
 portioned part of his estimated share in the profits for the 
 current half-year. A. dies during the term, and B. afterwards, 
 becomes bankrupt. Here B. takes the partnership property 
 subject to the right of A.'s estate to be indemnified against 
 the partnership debts, and the property of the firm of A. and 
 B., so far as it is found still existing in B.'s hands, must be- 
 first applied to pay the creditors of the firm.' , 
 
 7. A., B., C. and 1). are partners for a term under articles- 
 which provide that the death of any one of them shall not 
 dissolve the partnership, but the survivors or survivor shall 
 carry on the business, and the share of the deceased partner- 
 shall be ascertained and paid out as therein provided. A. 
 and B. die during the term, and afterwards C. and D. become- 
 liquidating debtors. Here, as the interest of a deceased 
 partner wholly passes to the survivors on his death under the- 
 special and exceptional pro-visions of the partnership articles, 
 the creditors of the original firm of A., B., C. and D. have- 
 no right to have the property of that firm, so far as it is found 
 still existing in the hands of C. and D., applied in payment 
 of their debts in preference to the creditors of the new firm of" 
 C. and D.^ 
 
 Dicta laying This rule has been repeatedly laid down in its general 
 down the rule. „ , , , i ■, . , -, 
 
 lorm as a well-established one. 
 
 ' Ex parte Hlorlry (1873), 8 Ch. 102G. Compare E.x parte Butcher 
 (1880), 13 Ch. 3)iv. 4Gd, a similar case, in which this dooisioni 
 was folio-wed. 
 
 = Ex parte Dear (ISTO), 1 Ch. Div- J14. 
 
 ' Re Simpson (1874), i) Ch. J72. This was a peculiar case. The- 
 last throG lUustnitions really belong to Art. 30 (which see) as much 
 as to this ; but it seemed on the whole more convenient to give- 
 thom liorc. 
 
ADMINISTBATION OF ESTATES. 13T 
 
 " Upon a Joint tankruptoy or insolvency, the joint estate Chap. xi. 
 
 is tlie fund primarily liable, and the separate estate is only '- — '- — 
 
 brought in in case of a surplus remaining after the separate 
 creditors have been satisfied out of it."^ 
 
 "The joint estate is to be applied in payment of the 
 joint debts, and the separate estate in payment of the 
 separate debts, any surplus there may be of either estate 
 being carried over to the other ; " and this appHes to the 
 administration of estates in Equity as well as in Bank- 
 ruptcy.^ 
 
 " The joint estate must be applied first in payment of 
 joint creditors, and the separate estate in payment of 
 separate creditors, and only the surplus of each estate is to 
 be applied in satisfaction of the other class of creditors." ^ 
 
 And now it is declared by statute in the Bankruptcy 
 Act, 1883, s. 40, sub-s. 3 : 
 
 " In the case of partners the joint estate shall be applic- 
 able in the first instance in payment of their joint debts, 
 and the separate estate of each partner shall be applicable 
 in the first instance in payment of his separate debts. If 
 there is a surplus of the separate estates it shall be dealt 
 with as part of the joint estate. If there is a surplus of 
 the joint estate it shall be dealt with as part of the respec- 
 tive separate estates in proportion to the right and interest 
 of each partner in the joint estate." 
 
 1 Rolfe V. Flmver (1866), L. E. 1 P. C. at p. 48. 
 
 ^ Lodrje v. Prichard (1863), 1 D. J. S. at pp. 613, 614, per 
 Turner, L.J. The Supreme Court of Judicature Act, 1873, s. 10, 
 assimilates the rules of administration of deceased persons' estates 
 to those ' ' in force tor the time being under the Law of Bankruptcy 
 with respect to the estates of persons adjudged bankrupt:" apart 
 from this enactment, however, the practice was already so settled 
 on the point now in question. 
 
 3 Ex parte Dear (1876), 1 C'h. Div. at p. 519, per James, 
 L.J.; Ex parie Morley (1873), 8 Ch. at p. 1032. 
 
138 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. The subject was also carefally considered by Lord 
 
 ^'"'" ''^' Eomilly in Ridgwaij v. Clare} The rules there laid down 
 
 by him for the various cases which may occur have been 
 
 given above in the form of illustrations. 
 
 Ruieof Indian The Indian Contract Act (s. 262) gives the rule as 
 Oontraot Act. „ ,, 
 
 toiiows : — 
 
 " Where there are joint debts due from the partnership, 
 and also separate debts due from any partner, the partner- 
 ship property must be applied in the first instance in pay- 
 ment of the debts of the firm ; and if there is any surplus, 
 then the share of each partner must be applied in pajTuent 
 of his separate debts or paid to laim. The separate pro- 
 perty of any partner must be ajipUed first in the payment 
 of his separate debts, and the surplus (if any) in the pay- 
 ment of the debts of the fiiin." This section is general in 
 its terms, and not confined to the administration of part- 
 ners' estates by the Com-t. It seems intended to cover the 
 doctrine of partners' lien, to which we have given a distinct 
 place (Art. 56, above). 
 The rule The rules of administration as between the creditors of 
 
 empirical and 
 
 doubtful in the firm and the separate creditors of the partners have 
 been settled, and adliered to after much hesitation in tlie 
 earlier cases, as " a sort of rough code of justice," ^ and as 
 an empuical way of dealing with a pressing necessity, 
 rather than as being reasonable in themselves.' They 
 
 1 19 Beav. Ill (1SJ4). 
 
 - Per James, L.J., Laceji v. Hill (1872), 8 Ch. at p. 4-14. 
 
 ^ " It is extremely difficult to say upon what the rule in bank- 
 ruptcy is founded:" per Lord Eldon, (Iraxj v. Chiswell (1803), 9 
 Ves. at p. I'JG; to the liko effect in Ihitton v. Morruon (1810 — 1), 
 IT Yes. at p. 211; see, too. Lodge v. Prichard (1863), 1 D. J. S. 
 (ill), per Turner, L.J. Story (on Partnership, §§ 377, 382) says 
 that it "rests on a foundation as questionable and unsatisfactory 
 as any rulo in tho whole system of our jurisprudence :" Kent, on 
 the other hand (Comm. iii. Go), thinks it on the whole a reasonable 
 
ADMINISTRATION OF ESTATES. 139 
 
 give, in fact, results altogether at variance with the mer- Chap. xi. 
 ■cantile system of settling the accounts of a firm, whicli '- — ^ — 
 
 proceeds upon the mercantile conception of the fii-m as a 
 
 person distinct from its partners. On the mercantile plan Mercantile 
 
 the debts of the partners to the firm, as ascertained on the ^fnigtration. 
 
 ■ordinary partnership accounts, are payable on the same 
 
 footing as their other debts ; and if this rule were applied 
 
 lay the Court, the joint estate might prove against the 
 
 ■separate estate of any partner in competition with the 
 
 separate creditors for the balance due from him to the firm. 
 
 The creditors of the firm would thus be in a far better 
 
 position than they are at present. As it is, the partners 
 
 may have considerable separate property, and be largely 
 
 indebted to the firm, and yet their separate creditors may 
 
 be paid in full, while the creditors of the firm get hardly 
 
 •any thing. 1 
 
 The law of Scotland does treat the firm as a separate Law of 
 person, and so far agrees with the usage of merchants ; 
 but on the point now before us it differs from the mer- 
 cantile scheme of accounts as well as from the law of 
 .England. The rule is, that " upon the sequestration of 
 ■co-partners their separate estates are applicable to the pay- 
 ment pan passu of their respective separate debts, and of 
 
 one. Lord Blackburn lias all but said tbat it was invented merely 
 to save trouble. " The reason was, I take it, not ujaon the groimd 
 "that there was a right in the private creditors to be paid out of the 
 separate estate, or a right in the joint creditors to be paid out of the 
 .joint estate, for I do not think that there was any such rule ; but 
 it was said the rule was to be adopted, partly, at least, on the ground 
 ■of convenience in administering the bankruptcy law. It was 
 thought that the administration of the bankruptcy law could not 
 be conveniently carried out if the estates were to be mixed. Whether 
 that was a right notion or not I do not know : " Head v. Bailey 
 (1877), 3 App. Ca. at p. 102. 
 
 ' See the extract from Cory on Accounts given in Lindley, ii, 
 1167. 
 
140 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. SO much of the partnership debts as the partnership estate- 
 Art 76 • r • 
 '. '. is insuihcient to satisfy. The creditor m a company [i.e., 
 
 partnership] deht, in claiming upon the sequestrated estate 
 of a bankrupt partner, must deduct from the amount of 
 his claim the value of his right to draw paj-nient from the 
 company's funds, and he is ranked as a creditor only for 
 the balance."! This is less favourable to partnership cre- 
 ditors than the mercantile rule, though more so than the 
 English rule, and it is more complicated in working than 
 either. The English rule was preferred to the Scottish by 
 most of the persons and bodies who returned answers to- 
 the Mercantile Law Commission ; whereas, on the other 
 matters of difference between the partnership law of the 
 two countries, the opinions given were almost unanimous 
 in favom- of the law of Scotland. 
 
 In France no express directions on this point are given 
 by the Civil or Commercial Code. The prevailing opinion 
 seems to be that the creditors of the firm have a prior 
 claim on the partnership property, and may also come 
 upon the separate property in competition with the sepa- 
 rate creditors : ^ and this is the rule expressly adopted by 
 the Swiss Federal Code of Obhgations, Ai'ts. 566 and 
 568. 
 
 The German Commercial Code (Ai-t. 122) makes the 
 joint estate (Gresellschaftsvermdgen) applicable in the first 
 instance to pay the debts of the fii-m : the rights of joint 
 and separate creditors respectively against the separate 
 estates are left to be dealt -VNith by the mimicipal laws- 
 (Landesgesetzeu) of the several German States. 
 
 ' Second Eeport of Mercantile La-w Commission, Appendix A,, 
 p. 99. It must be remembered that in Scotland the firm can be 
 bankrupt -vvitliout the partners being bankrupt. 
 
 - Troplong, Droit Civ. Expl., Contrat de la Societe, torn. 2, nos> 
 807 — 8G3 ; Sircy, Codes Anuotes, on Code Civ. ISGi, nos. 10 — 12. 
 
ADMINISTRATION OF ESTATES. 141 
 
 77. Notwithstanding the last foregoing chap. xi. 
 
 ■ T T" f»i/^ !• Art. 77. 
 
 article, a creditor of the nrm may prove his 
 
 Exceptional 
 
 debt in the first instance against the separate rights of 
 
 estate of a partner ii the debt has been incurred certain cases. 
 
 by means of a fraud practised on the creditor tors of firm 
 
 by the partners or any of them.^ against sepa- 
 
 rate estate. 
 
 Illustration. 
 
 A. and B., trading in partnership, induce C. to accejit 
 "bills of exchange to a large amount by representing them as 
 •drawn to meet purchases of cotton on the joint account of A. 
 and B.'s firm and C. The cotton has never been really 
 bought. A. and B. become bankrupt. C. is entitled to 
 prove at his election against the joint estate or the separate 
 ■estates.^ 
 
 There were formerly two or three other exceptions to Other _ 
 this rule, of a doubtful and capricious kind, which are abrogated, 
 now understood to be tacitly abolished by sect. 40 of the 
 Bankruptcy Act, 1883. They were stated in preceding 
 editions of this book. 
 
 78. Notwithstanding Article 76, the trustee Where joint 
 of the joint estate of a bankrupt firm may prove against 
 
 separate 
 estates or 
 ': estate of 
 
 1 Ex parte Adamso7i (1878), 8 Ch. Div. 807, diss. Bramwell, L.J. "i™orfirm. 
 The principle seems to be this : the creditor may proceed at his 
 election against the joint estate for the partnership debt, or against 
 
 the separate estates for the equitable UabUity to restore the money 
 obtained by fraud. This Uabihty constitutes a provable debt, being 
 treated apparently as a hquidated duty quasi ex contractu. And the 
 right seems to be the same against the separate estate of a partner 
 personally innocent of the fraud; Ex parte Salting (1883), 25 Ch. 
 Div. 148, -where the point was not decided, as the partner had 
 given a separate guaranty. 
 
 2 Ex parte Adamson (1878), 8 Ch. Div. 807. 
 
142 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. prove ^ against the separate estate of any partner^ 
 ^^^^— or the joint estate of any distinct firm com- 
 posed of or including any of the partners in the 
 principal firm, debts arising out of either of the 
 following states of fact : — 
 
 1. Where that partner or distinct firm has 
 dealt with the principal firm in a business 
 carried on by such partner or distinct firm 
 as a separate and distinct trade, and the 
 principal firm has become a creditor of such 
 partner or distinct firm in the ordinary way 
 of such dealing : ^ 
 
 2. Where that partner has fraudulently 
 converted partnership projoerty to his own 
 use^ without the consent or subsequent ratifi- 
 cation of the other partner or partners/ 
 
 Illustrations. 
 1 . A., B., C, D. and E. are bankers in partnership at York, 
 and A., B., C. and D. are bankers in partnership at "Wake- 
 field. A balance is due to the York firm from the "\Yakefield 
 
 ^ That is, on behalf of the creditors of the firm. 
 
 "- Lindley, ii. 1201. 
 
 3 n. 1198. 
 
 * The comparison of Ex parte Harris (1813), 2 T. & B. 210, and 
 1 Eose, 437, with Ex parte Tonge (1814), 3 Y. &B. 31 ; 2 Rose, 40, 
 and the judgment of Jessel, M.E., in Lacey \. Hill (1876), 4 Ch. 1>. 
 537, affirmed in the House of Lords, noni. Read v. Bailey (1877), 
 3 App. Ca. 94, seems to give this as the true form of the rule. For 
 further remarks see on Art. 79 below. Lord Eldon's own terms, 
 several times repeated in Ex parte Harris, arc "knowledge, consent, 
 privity or subsequent approbation." I have ventured to act on 
 Sir G. Jessel's intimation in Lacey v. Hill that fewer words would 
 probably have done as well. 
 
ADMINISTRATION OF ESTATES. 143'. 
 
 firm on account of dealings between tlie two banks in tbe Chap. XI. 
 ordinary course of banking business. The York firm, and __^^^1^^_ 
 therefore also the Wakefield firm, becomes bankrupt. The 
 trustee of the York firm may prove against the estate of the 
 "Wakefield firm for this balance.' 
 
 2. A. and B. become partners from the 1 st of January. Under 
 the articles all partnership moneys are to be paid into their 
 joint names at a particular bank, and each partner may draw 
 out £50 a month for his own use. An account is opened at 
 the bank in the joint names of A. and B., and partnership 
 moneys are paid into it. On the 1st of February A. draws 
 out £550 instead of £50 without the knowledge of B., and the 
 firm shortly afterwards becomes bankrupt. The trustee of the 
 joint estate may prove against A.'s separate estate for £500.^ 
 
 3. A. and B. are partners under articles which provide that 
 money received by either of them on the partnership account 
 shall be paid monthly into a certain bank, and that each 
 partner may draw out £50 per month for his own use. A. is 
 the acting partner, and with the knowledge of B. pays the 
 moneys received by him on the partnership account into his 
 private account at his own banker's, and B. himself pays some 
 partnership moneys into A.'s account. A. draws on the 
 partnership funds so standing to his own account beyond 
 the amount permitted by the articles, and also retains other 
 partnership funds in his hands, and applies them to his own 
 use without ever paying them in. The firm becomes bank- 
 rupt. The trustee of the joint estate cannot prove against the 
 separate estate of A. for the moneys drawn out in excess or not 
 paid in, as B. has by his conduct allowed A. to have the sole 
 dominion over the partnership funds, and must be taken to 
 have consented to the unlimited exercise of that dominion.' 
 
 4. [A. and B. are partners, A. being the sole acting partner. 
 A. pays out of the partnership property private debts of his 
 
 1 Ex parte Castell (1826), 2 Gl. & J. 124. 
 
 2 Per Lord Eldon, Ex parte Harris (1813), 2 V. & B. at p. 214. 
 
 3 Ex parte Harris (1813), 2 V. & B. 210, and less fully in 1 Eose, 
 437. "The necessary eflect of the transaction being to give the 
 dominion over the whole fund to one . . . the other must be taken. 
 to have consented to that dominion :" 2 V. & B. at p. 215. 
 
144 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. own and other debts for which, under the provisions of the 
 ATt. 79. partnership articles, not the firm but A. separately is Uable. 
 The firm afterwards becomes bankrupt. The trustee of the 
 joint estate cannot prove for the amount of these debts against 
 the separate estate of A., since A.'s conduct does not amount 
 to a fraudulent conversion of partnership property to his own 
 use.'] 
 
 6. A., B. and 0. are partners in a bank, A. being the sole 
 managing partner. The articles contain clauses against over- 
 drawing. A. draws large sums from the funds of the bank 
 by means of fictitious credits and forged acceptances, and 
 thereby conceals from B. and C. (who trust A.'s statements 
 without making further inquiry) the fact that he has over- 
 drawn his private account in contravention of the partnership 
 articles. A. dies, and shortly afterwards B. and C. become 
 bankrupt. The trustee of B. and C.'s joint estate may prove 
 against A.'s estate for the amount of the partnership moneys 
 misappHed by him." 
 
 Euie against 79. Where the joint estate of a firm or the 
 
 partners in Separate estate of any partner is being adminis- 
 
 •competition . 
 
 withcreditors. , ^^ ^^^^^ ^^^^^ ^^^^ Feudal (1790), 1 Yes. Jr. 166, and see 
 
 2 V. & B. 211, n., and Cooke's Bankrupt Laws, o30, 8th ed. The 
 opinion of the Court was at first the other wliv, and the case has 
 been considered one of great hardship ; see the judgment in Exi 
 parte Yonge (1814), 3 V. & B. 31, 34 ; 2 Rose, 40. It is difficult to 
 understand the real grounds of the decision from the report itself ; 
 but it must now be taken that the case was one o£ the same class 
 as Ex parte Harris (1813). See the comments on it in the judgment 
 there, 2 V. & B. at p. 213, and Ex parte Hinds (1849), 3 De G. & 
 Sm. at p. 61o, and by Lord Blackburn in Read v. Bailey (1877), 
 
 3 App. Ca. at p. 103, who deals with it thus: " I collect that in 
 that case the dormant partner had, by deed, given the acting 
 partner who carried on the business the amplest authority to invest 
 the money in any way he pleased, and he pleased to invest it by 
 lending it to himself, to pay his private debts. That was a very 
 wrong thing indeed ; it was, as Lord Eldon afterwards expressed 
 it, an abuse of his authority — a most improper use of his authority 
 • — but he did act upon the authority." 
 
 = Lacey v. Hill (1876), 4 Ch. Div. J37, affirmed in the House of 
 Lords, nom. Read v. Bailey (1877), 3 App. Ca. 94. 
 
ADMINISTRATION OF ESTATES. 145 
 
 tered, no partner in the firm may prove in com- chap. xi. 
 
 ' ^ -^ ^ Art. 79. 
 
 petition with the creditors of the firm either 
 against the joint estate of the firm^ or against 
 the separate estate of any other partner^ until 
 all the debts of the firm have been paid. 
 
 Explanation. — This rule applies to a person 
 who, not being in fact a partner, has, by hold- 
 ing himself or allowing himself to be held out 
 as a partner, become liable as such to the 
 creditors of the firm generally,^ but not to 
 one who has so become liable to some only of 
 the creditors.* 
 
 A married woman who lends money out of lier separate 
 property to a firm of which, her hushand is a member can 
 (if the loan is really and not colourably a loan to the firm 
 as distiact from the hushand ia person) prove against the 
 joiat estate like any other creditor. Sect. 3 of the Married 
 Women's Property Act, 1882, cannot he extended so as to 
 put her in the position of a partner, and bring her within 
 this or an equivalent rule.' 
 
 Exceptions. — Partners may nevertheless prove Exceptions in 
 
 . . a -I r- ^ special cir- 
 
 agamst the joint estate of the firm or the sepa- cumstances. 
 rate estate of a partner, as the case may be, for 
 
 1 Lindley, ii. 11S7. 
 
 ^ lb. 1202. 
 
 ■* Ex parte Hayman (1878), 8 Ch. Div. 11. 
 
 « Ex parte Sheen (1877), 6 Cli. Div. 235. In the one case there 
 is an ostensiMe partnership apparent to the public, in the other 
 only circumstances creating at most a liability towards particular 
 persons. 
 
 5 He Tuff, Ex parte Nottingham (1887), 19 Q. B. D. 88. 
 
 P. L 
 
146 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. debts which have arisen under any of the fol- 
 ■ ^ lowing states of fact : — 
 
 1. Where two firms having one or more 
 members in common, or a firm and one of its 
 members, have carried on business in sepa- 
 rate and distinct trades and dealt with one 
 another therein, and the one firm or trader 
 has become a creditor of the other in the 
 ordinary way of such dealing : ^ 
 
 2. Where the separate property of a partner 
 has been fraudulently convei-ted to the use of 
 the firm,^ or property of the firm has been 
 fraudulently converted to the use of any 
 partner,^ without the consent or subsequent 
 ratification of the partner or partners not 
 concerned in such conversion : * 
 
 3. Where, having been bankrupt, a partner 
 has been discharged, and has afterwards 
 become a creditor of the firm^ [or of another 
 partner^]. 
 
 Illustrations. 
 
 1. A., B. and C. are partners under articles Trhieh provide 
 that, if any partner dies, his share shall be taken by the 
 surviving partners at its value according to the last stock- 
 taking, with interest at 5 per cent, on its amount in. lieu of 
 
 ' Lindley, ii. 1191, 1203. 
 
 ^ Per Lord Eldon, Kx parte Sillitoe (1824), 1 Gl. & J. at p. 382. 
 
 » Lindloy, ii. 1198. 
 
 * SeoNote 4, p. 142, above. 
 
 ' Lindley, ii. 1190. 
 
 ° This case -would presumably foUow the analogy of the other. 
 
ADMimSTBATION OF ESTATES. 147 
 
 profits up to the day of his death, and shall he paid out by Chap. XI. 
 instalments. A. dies, and after his death, and before the 
 ascertained value of his share has been paid to his executors, 
 3. and 0. become bankrupt. A.'s executors cannot prove 
 against the joint estate of the firm for the amount due to 
 them in respect of A.'s share till all other debts of the firm 
 ■contracted during A.'s lifetime are paid.' 
 
 2. If, the other facts being as in the last illustration, all 
 ■debts of the firm contracted in A.'s lifetime have been paid 
 before the bankruptcy, A. 's executors may prove for the full 
 amount ; for here they are not competing with any creditor 
 of A.^ 
 
 3. A. and B. are partners. The partnership is dissolved 
 by agreement, A. giving B. a bond for £10,000 and interest, 
 and B. transferring to A. aU. his interest in the partnership. 
 A. and a third person, C, also covenant to pay the debts of 
 the firm. A. becomes bankrupt. B. assigns his separate 
 property to trustees for the benefit of the creditors of the 
 £rm. The trustees under this assignment cannot prove the 
 bond debt against A.'s estate until all the debts of the firm 
 are paid, or unless the creditors of the firm accept the assign- 
 ment of B.'s property as payment in full and release the joint 
 liability of A. and B.^ 
 
 4. A. and B. are partners. The firm becomes bankrupt. 
 Before the bankruptcy A. is indebted to B. upon a contract 
 independent of the partnership. It is known that there will be 
 no surplus of A.'s separate estate after satisfying his separate 
 debts, whether B.'s debt is admitted to proof or not. B. may 
 prove his debt against A.'s separate estate, as he does not 
 thereby compete with any creditor of the firm.* It is doubt- 
 ful whether he might so prove it if A.'s separate estate were 
 solvent.* 
 
 ' Nanson v. Gordon (1876), 1 App. Oa. 195, affirming s. c. nom. 
 Ex parte Gordon (ISW), 10 Oh. 160. 
 
 2 Ex parte Edmonds (1862), 4 D. F. J. 488. The fact that th» 
 joint debts had been paid appears by the head-note. 
 
 s Ex parte Collinge (1863), 4 D. J. S. 533. 
 
 * Ex parte Topping (1865), 4 D. J. S. 551. 
 
 « Zacey v. Hill (1872), 8 Ch. 441, 445. 
 
 l2 
 
148 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. 6. A. and B. are traders in partnership, A. being a dormant 
 
 ^'^- "^^^ partner. Ttey dissolve the partnership by agreement, and 
 
 B. takes over the business of the firm, and is treated by its 
 creditors as their sole debtor. On the dissolution an account 
 is stated between A. and B. which shows a balance due to A. 
 Afterwards A. sues B. for the amount, the action is unde- 
 fended, and A. signs judgment for the debt and costs. Some 
 time after this B. becomes bankrupt. A. can prove this debt 
 in B.'s bankruptcy, because the partnership debts have been 
 converted into the separate debts of B., and B.'s debt to A. 
 on the account stated is a purely separate debt.^ 
 
 6. A. and B. are partners. A. also carries on a separate 
 trade on his own account, and in that trade sells goods to the 
 firm of A. and B. The firm of A. and B. becomes bankrupt. 
 A. may prove against the joint estate for the balance due on 
 the dealings between A. in his separate business and the firm 
 of A. and B.^ 
 
 7. A., B., C. and D. are bankers in partnership under the 
 firm of 0. & Co. A. and B. are ironmongers under the firm 
 of A. & Co. A. and B. indorse in the name of A. & Co. bOls 
 remitted to them by C. & Co., and procure them to be dis- 
 counted on the credit of this indorsement ; they also draw bills 
 in the name of A. & Co. for the use of C. & Co. The firm of 
 
 C. & Co. becomes bankrupt. A. and B. cannot prove against 
 the joint estate for the balance due to them on these transac- 
 tions, as their dealings with 0. & Co. were not in the course 
 of their separate trade, but only " for the convenience of the 
 general partnership." ^ The same rule applies even if A. & 
 Co. are bankers.* 
 
 8. A., B. and C. are bankers in partnership. C, the 
 managing partner, becomes bankrupt. A balance is due 
 from him to the firm on the partnership account, and he has 
 also obtained large sums of money on bills drawn and in- 
 dorsed by him in the name of the fii-m, and applied the money 
 
 1 Ex parte Grazihrook (183:2), 2 D. & Oh. 1ST ; see the explanation 
 in Lindley, ii. l-Oo. 
 
 » Ex parte Cook (1831), Mont. liiS. 
 
 » Ex parte Si!l/toe (1824), 1 Gl. & J. 37-1. 
 
 « Expiirte Miiiiile (18G7), 2 Ch. 550. 
 
ADMINISTRATION OF ESTATES. 149 
 
 to his own use, and A. and B. have been compelled to take Chap. XI. 
 up the bills. A. and B., having paid all the debts of the firm ^^- '^^- 
 ■existing at the date of the bankruptcy, may prove in O.'s 
 bankruptcy for the amount thus received and misapplied by 
 him.' 
 
 9. A. and B. are partners under articles which provide that, 
 if A. dies during the partnership, B.'s share in the business 
 shall belong to A.'s' representatives. A. dies during the 
 partnership, having appointed B. and others his executors. 
 B. is the sole acting executor, and continues the business. 
 He receives income of the separate property of A., and em- 
 ploys it in the business without authority. A.'s estate is 
 insolvent, and is administered by the Court. B. becomes 
 bankrupt, and the joint estate of the late firm is administered 
 in the bankruptcy. The receiver of A.'s estate may prove in 
 the bankruptcy of B. for the moneys misapplied by B. as A.'s 
 •executor.^ 
 
 10. A firm becomes bankrupt. One of the partners obtains 
 his discharge, and afterwards takes up notes of the firm. He 
 may prove for their amount against the joint estate.^ 
 
 11. 0. and K. are partners under the firm of 0. & Co. C, 
 without K.'s knowledge, procures G. and W. to establish a 
 business under the firm of W. & Co., W. being the manager 
 and holding himself out as a principal, and G. a trustee for 
 •C., who is the only real principal. Dealings take place be- 
 tween the firms of 0. & Co. and W. & Co., and the firm of W. 
 & Co. becomes indebted to the firm of C. & Co. for goods sold 
 and money lent in the ordinary course of business. These 
 ■dealings are not known to K. Both 0. & Co. and W. become 
 bankrupt. Here C. & Co. cannot prove against W.'s estate, 
 inasmuch as there is not any real debt.* 
 
 1 Ex parte Yonge (1814), 3 V. & B. 31, and 2 Eose, 40. 
 = Ex parte Westcott (18'74), 9 Ch. 626. 
 
 3 Ex parte Atkins (1820), Buck, 4*79. 
 
 4 Be Wakeham (1884), 13 Q. B. D. 43. This is a singular case. 
 As between 0. and W. there was no real contract m.aking W. liable 
 to pay, since C. knew all the facts ; as between K. and W. there 
 jnight have been a contract by holding out if K. had known of the 
 transactions at the time, but he did not ; neither could K. get the 
 benefit of .'s ostensible contract by ratification, for there was 
 -nothing to ratify. 
 
150 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. 
 Art. 79. 
 
 Principles of 
 exceptional 
 right of proof 
 where pro- 
 perty has been 
 wrongfully 
 converted to 
 the use of the 
 firm or of a 
 partner. 
 
 Fraud in 
 strict sense 
 need not be 
 proved. 
 
 The exceptional right of proof in cases where there has 
 been a wrongful conversion of partnership property to the- 
 use of one partner or vice versa is established by compara- 
 tively early authorities which settle the principle, but are 
 not very clear in their language, and leave sundry questions 
 open as to the limits of the rule. It is somewhat unfortu- 
 nate that Ex parte Lodge and Fendal^ acquired the reputa- 
 tion of being a leading case on the subject ; for the facts 
 are not stated in sufficient detail, and the ultimate decision 
 is nowhere fully reported. The real leading case appears 
 rather to be Ex parte Karris^ which was in fact so treated 
 in Lacey v. Hill? 
 
 In this last case the whole question is dealt -n-ith, and 
 especially the judgment of Sir Gr. Jessel, then Master of 
 the Eolls, greatly lessens the difficulty of giving a complete- 
 and exact statement of the law. 
 
 The points specially considered were the following : — 
 
 First, what is a fraudulent conversion of partnership 
 property to a partner's separate use^ within the meaning- 
 of the rule? A wilfully dishonest intention, or conduct, 
 which, in the language of Lord Eldon, adopted by 
 Jessel, M.E.., amounts to stealing the partnership property,, 
 is generally found to be present in these cases, but it need 
 not be proved in every case. 
 
 " It is not," said Sir Gr. Jessel,* " necessaxy for the joiafr 
 estate* to prove more than, in the words of Lord Eldon,® 
 that this overdrawing was for private purposes, and %vithout 
 
 > 1 Ves. Jr. 166 (1790); see Note 1, p. 144, above. 
 
 2 2 V. & B. 210 (1813). 
 
 ■■* See Note 2, p. 144, above; 4 Cb. Div. o37 ; nom. Read v. Bailey 
 (1877), 3 App. Ca. 04. 
 
 * Everytbing bare said is equally applicable, of course, to tbe- 
 converse case, wbicb, bowever, is in practice very rare, if indeed it 
 occurs at all. 
 
 5 4 Cb. D. at p. 543. 
 
 « Ex parte Harris (1813), 2 V. & B. at p. 214. 
 
ADMINISTRATION OF ESTATES. 151 
 
 the knowledge, consent, privity, or sutseqiient approbation Chap. XI. 
 of the other partners. If that is shown, it is prima facie a '. — '. — , 
 
 fraudulent appropriation within the rule." Hence it 
 
 would appear that the term fraud is used for the purposes 
 
 of this rule in the wide sense formerly given to it by 
 
 Courts of Equity. Lord Blackburn puts the question ia a 
 
 slightly different way : " "Was this debt in respect of which 
 
 the claim is sought to be made upon the separate estate 
 
 contracted by the authority, expressed or implied, of the 
 
 firm, though that authority might have been abused in 
 
 contracting it, or was it done by fraud, without any 
 
 authority, by an absolute fraudulent conversion of the 
 
 property of the firm ? " ^ It is said, agaia, that a mere 
 
 excess in degree of an act authorized in kind, such as an 
 
 overdraft entered in the books without concealment, is not 
 
 fraud withia the meaning of the rule.^ These remarks do 
 
 not seem to agree with the proposition laid down by 
 
 Sir Gr. Jessel in its full extent; it was not necessary to 
 
 define the point, as in the case before the Court the fraud 
 
 was gross and elaborately concealed. 
 
 Next, what wiU amount to imphed authority ? It must Consent or 
 
 be admitted that one partner may give assent by conduct ^^ ^ \j 
 
 as well as by words to the uncontrolled and unlimited conduct: 
 
 ■^ _ _ question of 
 
 exercise of dominion over the partnership funds by the constructive 
 other, and that a general assent so given may have the 
 same effect as regards the other partner's dealings with 
 the funds as if those dealings had been severally and 
 specially authorized. So much is established by the 
 decision in & parte Harris.^ But a distinct question 
 remains, whether the doctrine of constructive notice applies 
 
 > 3 App. Ca. 104 (1877). 
 
 ' Lord Cairns, 3 App. Ca. 99 (1877), and James, L.J., 4 Ch. Div. 
 553 (1876). 
 
 » 2 V. & B. 210 (1813). 
 
152 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Chap. XI. 
 Art. 79. 
 
 1 Decision in 
 Lacey v. Sill 
 that doctrine 
 of construo- 
 tive notice is 
 not here 
 applicable ; 
 
 to these cases ; in other words, whether means of know- 
 ledge on the part of the partner defrauded are equivalent 
 to actual knowledge. If he might have discovered the 
 misappropriation of partnership funds by using ordinary 
 dihgence in the partnership affairs, can he be deemed to 
 have assented to the misappropriation ? or (which seems a 
 better way of putting it) is he estopped from saying that 
 the misappropriation was not consented to or ratified by 
 him ? There is some show of authority in favour of an 
 afiSrmative answer. Lord Eldon said, in Ex parte Yonge^ 
 "If his partners cotdd have known that he [the acting 
 partner] had applied it to his own purposes from their 
 immediate or subsequent knowledge upon subsequent 
 dealing, their consent would be implied : " a dictum which, 
 though far from lucid, seems in its most natural reading 
 to lay down the doctrine that constructive notice or means 
 of knowledge will have the same effect as actual consent 
 or a ratification by words or conduct founded on actual 
 knowledge. And in the much later case of Ex parte 
 Hinds,^ the judgment of the Commissioner, from which 
 Knight Bruce, V.-C, did not dissent, proceeds without 
 hesitation on this doctrine. The case was finally disposed 
 of, however, on the ground that there was in fact no con- 
 version at all, the investment in question, though unautho- 
 rized, having been made on the partnership account. 
 
 The contrary doctrine, on the other hand, was distinctly 
 and positively laid down by Sir Gr. Jessel in Lacey v. Hill,^ 
 and does not appear to have been contested on the appeal 
 to the House of Lords, the result of which was to affirm 
 the decisions below in all points.* There must be, he said 
 
 ' 3 V. & B. at p. 36 (1814). 
 
 = 3 De G. & Sm. 613, 616—7 (1849). 
 
 = 4 Ch. D. o37 (1876). 
 
 « Rtad V. Bailey (1877), 3 App. Ca. 9^. 
 
ADMINISTRATION OF ESTATES. 153 
 
 in effect, a real consent or acquiescence ; and acquiescence chap. XI.. 
 means, not the existence of facts whicli may be said to '- — '- — 
 
 amount to constructive notice, but standing by with know- 
 ledge — actual knowledge — of one's rights, both in fact 
 and law. Neither can the result aimed at by the theory '^°'^ *^a* <>* 
 
 - estoppel by 
 
 of constructive notice be obtained in another way by negligence, 
 putting it on the ground of estoppel by negligence. A 
 person who has committed gross fraud — or his creditors 
 who stand in his place — cannot be heard to complain of 
 the negligence of the person defrauded in not finding out 
 the fraud sooner. The language of the judgment leaves 
 room for the suggestion that this does not apply to a case 
 where there is not actual fraud in the strict sense, a stealing 
 of the partnership funds ; so that in such a case it may 
 ■ still be arguable that means of knowledge will do. But 
 there is hardly room for a distinction of this kind when 
 the misappropriation such as to give a right of proof is 
 once established. Absence of concealment and facilities 
 for discovery by the other partners are material, if at all, 
 rather on the preliminary point whether the dealing was 
 indeed fraudiolent, as in the case put in the Court of 
 Appeal of overdrafts being truly entered in the books in 
 the usual way. 
 
 It was further argued in Lacey v. Sill that, in order to 
 establish the right of proof against the separate estate, it 
 was necessary to show that the separate estate (that is, the 
 fund available for the separate creditors) had been actually 
 increased by the sums misappropriated. This argument, 
 apparently a novel one, found no favour vidth the Court. 
 A man's separate estate is increased by any increase of his 
 private means ; increasing his own means out of the part- 
 nership estate, whatever he does with the funds so taken, 
 is in fact increasing his separate estate. " Whether the 
 separate estate has in the result been increased or not — 
 
154 PROGEDUBE AND ADMINISTRATION. 
 
 Chap. XI. whether at the time of the proof it is larger than it other- 
 ^^- ''^^ wise would have been or not— is a matter which does not 
 concern the application of the rule, and it is sufficient that 
 at one time the separate estate was increased when th& 
 property was thus fraudulently converted and taken for 
 the purpose of one partner." ^ The Court has nothing to 
 do with tracing the subsequent fate of the sums misap- 
 propriated : if in any particular case they could be traced 
 and identified in a specific investment, the right of the 
 joint estate would be of a difierent kind ; there would be 
 a case, not for proof, but for restitution.^ 
 Ordinary _ It will be remembered that apart from these special 
 tors against rules a partnership creditor is always entitled to a remedy 
 ner^restate!'' against the estate of a deceased partner concurrently with 
 his right of action against any surviving partner, but 
 subject to the prior claim of the deceased partner's separate 
 creditors; and that it is immaterial in what order these 
 remedies are pursued if the substantial conditions of not 
 competing with separate creditors, and of the surviving 
 partner beiag before the Court, are satisfied in the pro- 
 ceedings against the deceased paj±ner's estate.' 
 Double proof It will also be observed that where a joint Kability and 
 where distinct ^^g ^^ more separate liabilities axe created in different 
 
 causes oi -"^ 
 
 action. rights in the course of the same transaction, there is no 
 
 rule against the concurrent enforcement of both. Trustees 
 of a settlement paid money for the purpose of a specific 
 investment to a firm of solicitors in which one of the 
 trustees was a partner; that firm misapplied the money 
 and became bankrupt ; the new trustees were admitted to 
 
 ^ Lord Cairns, 3 App. Ca. 100 (1877). 
 2 4 Oh. Div. 543. 
 
 ' Re Hodgson, Beckett v. Ramsdale (1885), 31 Ch. Div. 177, and 
 see Art. 14 above. 
 
ADMINISTRATION OF ESTATES. 155- 
 
 prove both against the separate estate of the defaulting Chap. xi. 
 
 trustee in respect of his breach of trust, and against the ^ — '- — 
 
 joint estate of the firm in respect of their contract to 
 invest or restore the money (these being distinct and 
 independent obligations), without deciding whether the 
 contract of the firm was not of itself joint and several.^ 
 
 80. Any creditor of a firm holding a seen- Eights of 
 
 joint creditors- 
 
 ritj lor his debt upon separate property o± any holding- 
 partner may prove against the joint estate of security, or 
 the firm, and any separate creditor of a partner 
 holding a security for his debt upon the pro- 
 perty of the firm may prove against that part- 
 ner's separate estate, without giving up his 
 security : provided that the creditor must in 
 no case receive in the vphole more than the full 
 amount of his debt.^ 
 
 Explanation. — Representations niade to a 
 creditor by the partner or partners giving him 
 a security that the property on vphich the 
 security is given is separate, or is the property 
 of the firm, as the case may be, do not affect 
 or extend the application of this rule.^ 
 
 Illustrations. 
 1. A., B. and C. are partners, and open a banking account 
 
 ' Be Parker, Ex parte Sheppard (188*7), 19 Q. B. D. 84. 
 
 2 lie Plummer (1841), 1 Ph. 56, 60; Eolfe v. Flower (1866), L. E. 
 1 P. C. at p. 46; Lindley, ii. 1183, 1213. For the general rule as 
 to the treatment of secured debts in bankruptcy, see 11. 1181, and 
 Schedule 2 to the Bankruptcy Act, 1883 ; also Couldery v. Bartrum 
 (1880— 1), 19 Ch.Div. 394; Societe Generale de Paris y. Geen 
 (1883), 8 App. Oa. 606. 
 
 ' See Illustration 4. 
 
156 PROGEDUBE AND ADMINISTRATION. 
 
 Chap. XI. withD. The bank makes advances to tlie firm on tlie security 
 ^"^^- ^°- of the joint and several promissory note of A., B. and 0. 
 Afterwards A. gives the bank a mortgage of separate property 
 of his own to secure the balance then due and future advances 
 to a limited extent. The firm becomes bankrupt, being at the 
 time indebted to the bank beyond the amount covered by the 
 promissory note and mortgage respectively. After realizing 
 the mortgage security, D. may prove against the joint estate 
 upon the promissory note for the balance of the debt.' 
 
 2. A. is in partnership with liis son, B. They execute to a 
 partnership creditor, C, a joint and several bond for his debt, 
 and A. also gives 0. an equitable mortgage on land which is 
 his separate property. The partnership is afterwards dis- 
 solved. A. dies intestate, and B. becomes bankrupt. The 
 partnership debts and A.'s other debts are of such an amount 
 that, apart from this mortgage debt, A.'s estate would be in- 
 solvent. Here C. may prove his debt in B.'s bankruptcy 
 without giving up his security, as B. has no beneficial interest 
 in the mortgaged estate, and C.'s security is therefore not on 
 B.'s estate.' 
 
 3. A. and B. are partners. The firm keeps a banking 
 account with C. & Co., with whom A. likewise keeps a separate 
 account. A. deposits with the bank the title-deeds of separate 
 property of his own, to secure the balance of account due or 
 to become due from him, either alone or together with any 
 one in partnership with him. The firm of A. and B. becomes 
 bankrupt. Both the account of the firm and A.'s separate 
 account are overdrawn. C. & Co. may prove against the joint 
 estate for the whole balance due from the fitrm to the bank, 
 and apportion the proceeds of the security on A.'s property 
 between the balance due from the firm and that due from A. 
 as they think fit, allowing for what comes to them under the 
 proof against the joint estate.^ C. & Co. may also prove 
 against A.'s separate estate for the residue of A.'s separate 
 
 ' Ex parte Bate (1838), 3 Deac. 358. 
 
 = Ex parte Turney (1844), 3 M. D. & D. 576. 
 
 ^ For this purpose they may apply to the Coart to have a dividend 
 declared first on the joint estate under s. 59 of the Bankruptcy Act, 
 1883 : see Art. 74, above. 
 
ADMINISTRATION OF ESTATES. 157 
 
 debt to them, after deducting the apportioned part of the chap. XI. 
 proceeds of the security.' ^^^- ^^- 
 
 4. A. and B. are partners. A. is a shareholder in a bank 
 incorporated under the Companies Acts, which by the articles 
 of association has a lien on the shares of every shareholder 
 for debts due to the bank from him either alone or jointly 
 ■with any other person. A.'s shares are in fact, but not to the 
 knowledge of the bank, partnership property. The firm of 
 A. and B. becomes bankrupt. The bank cannot treat these 
 shares as A.'s separate property for the purpose of its lien, 
 and cannot prove against the joint estate for the balance 
 due from the firm of A. and B. without deducting the value 
 of the shares.^ 
 
 81. "If a debtor was at the date of the Double proof 
 
 allowed on 
 
 receiving order liable in respect of distinct distinct con- 
 contracts as a member of two or more distinct 
 firms, or as a sole contractor, and also as mem- 
 ber of a firm, the circmnstance that the firms 
 are in whole or in part composed of the same 
 individuals, or that the sole contractor is also 
 one of the joint contractors, shall not prevent 
 proof* in respect of the contracts against 
 
 1 Ex parte Dichin (1875), 20 Eq. 767. 
 
 "-Ex parte Mancliester and County Bank (1876), 3 Oh. Div. 481. 
 The reason is, according to Mellish, L.J. (at p. 487), that the 
 question is not between the partners and the secured creditor, but 
 between the secured creditor and the other creditors of the firm, so 
 that the principle of estoppel does not apply. James, L. J., doubted 
 as to the principle, and Baggallay, J. A., preferred to rest the 
 decision on the provisions of the Bankruptcy Act as to secured 
 creditors. 
 
 ^ The statutory right to prove carries the right to receive divi- 
 dends, and is in no case merely formal : see Ex parte Honey (1871), 
 7 Ch. 178. 
 
158 PEOGEDURE AND ADMINISTRATION. 
 
 Chap. XI 
 Art. 81. 
 
 Chap. XI. the properties respectively Kable on the con- 
 tracts." ^ 
 
 In cases not included in the foregoing rule a 
 creditor to whom a firm is liable, and to whom 
 its members are also severally liable for the 
 same debt, must elect whether he will proceed 
 as a creditor of the firm or as a separate 
 creditor of the partners.^ 
 
 Illustrations. 
 
 1. A., B., and others are partners in a firm of A. & Co. A 
 joint and several promissory note is made and signed by A. & 
 Co., by A. and B. separately, and by other persons. After- 
 wards the firm of A. & Co. becomes bankrupt. Here the 
 contract of the firm and the separate contracts of A. and B. 
 contained in the same note are distinct contracts ■within the 
 above rule, and the holder of the note may prove against and 
 receive dividends from both the joint estate of the firm and 
 the separate estates of A. and B.' 
 
 2. A. & B. are partners. They borrow a sum of money 
 for partnership purposes from C, and C. settles the debt upon 
 certain trusts by a deed in which A. and B. jointly and 
 severally covenant with D. to pay the sum. The deed does 
 not show that A. and B. are partners or that the debt is a 
 partnership debt. The firm becomes bankrupt. Here it may 
 be shown by external evidence that the joint contract of A. 
 and B. in the deed is in fact the contract of their firm, and D. 
 may prove against the joint estate of the firm in respect of the 
 
 I Bankruptcy Act, 1SS3 (46 & 47 Vict. c. o2), Sched. 2. 
 Art. 18. 
 
 ''■ This was the old general rule, which is now practically reduced 
 to an exception of no great importance; Lindley, ii. 1208, 1212. 
 The cases cited as illustrations will show that the Court is iaclined 
 to give a liberal application to the modem enactment. 
 
 » Ex parte Honey (1871), 7 Ch. 178. 
 
ADMINISTRATION OF ESTATES. 159 
 
 joint covenant, and against the separate estates of A. and B. Chap. XI. 
 in respect of their several covenants.^ -^''''- ^^- 
 
 82. Where the discharge of any member Effect of 
 
 , . « . T .,...,. separate dis- 
 
 01 a partnership firm is granted to him m his charge of 
 separate bankruptcy, he is thereby released 
 from the debts of the firm as well as from his 
 separate debts.^ 
 
 Ex parte Stone (ISYS), 8 Ch. 914. 
 
 Ex parte Hammond (1873), 16 Eq. 614. 
 
161 
 
 APPENDIX. 
 
 In 1879, at the request of Mr. Sampson Lloyd, then member 
 lor Plymouth, I drew a Bill for the consolidation and amend- 
 ment of the law of partnership. The objects of this Bill 
 were : — 
 
 1. To codify the existing law, for which the present work 
 served as an outhne. 
 
 2. To introduce a system of limited partnership correspond- 
 ing to partnership en commandite. 
 
 3. To introduce general registration of firms. 
 
 In 1880 the Bill passed a second reading, and was in a 
 general way approved by the Board of Trade on condition 
 of the plan for a general registration of firms being dropped, 
 which accordingly was done by means of amendments on a 
 committal pro forma: but there was no time for further 
 progress. 
 
 In 1882 the BiU, thus amended, was again brought in, and 
 was referred to a Select Committee, which reported the con- 
 solidating part with amendments, but declined to proceed 
 with the part relating to limited partnerships. The Bill went 
 into committee of the whole house, where many further 
 amendments were proposed, and some agreed to : but on the 
 whole little way was made, and the BiU again dropped. 
 
 The consolidating part alone was again introduced, with 
 the amendments formerly adopted at various stages, in the 
 Session of 1883; but this time it did not come to a second 
 reading, the debate standing adjourned on a Wednesday, and 
 never being resumed : ultimately the Bill was withdrawn. 
 In 1884 a BiU for general registration of firms, being the 
 abandoned part of the Partnership BiU of 1 879 — 80, with some 
 additions and variations of detail, was separately introduced. 
 This is the part which the original promoters of the BiU 
 cared most for. PersonaUy I never cared much for it, and 
 
 P. M 
 
162 
 
 APPENDIX. 
 
 I now tliink it a mistake, though limited partnerships, if 
 recognized by law, would certainly have to be registered. 
 One or more of these Bills have, I believe, been introduced 
 in subsequent sessions, but there has not been further debate 
 on them in Parliament. 
 
 It is thought convenient to reprint here the consolidating 
 BiU of 1883, with a few explanatory notes, and also the 
 limited partnership clauses of the Bill of 1880. 
 
 These last are doubtless capable of much improvement, as 
 the experiment of drafting provisions for the establishment 
 of commandite partnership in an English form was all but 
 untried. But, inasmuch as the matter seems as far as ever 
 from coming to anything practical, I have not thought it worth 
 whUe to give any more consideration to it at present. 
 
 PAHTNEESHIPS BILL (1883). 
 Aeea2<^gement of Ciaxtses. 
 
 Preliminary. 
 Clause. 
 
 1. Short title. 
 
 2. Commencement of Act. 
 
 3. Extent of Act. 
 
 4. Interpretation of terms. 
 
 5. Application of Act. 
 
 PaetI. 
 
 Of Partners and their liability and 
 authority in respect of Partnership 
 Dealings. 
 
 6. Partnership defined. 
 
 7. Part ownership not to create 
 
 partnership. 
 
 8. Sharing of gross returns not to 
 
 create partnership. 
 
 9. Sharing proiits not necessarily 
 
 partnei-ship. 
 10. Payment out of profits not to 
 
 create partnership. 
 As to person advancing money 
 
 for share of profits. 
 As to agent remunerated by 
 
 share of profits. 
 As to widows or children of 
 
 deceased partners receiving 
 
 share of profits as annuity. 
 As to seller of goodwill reoeiv- 
 
 iag share of profits. 
 
 11 
 
 12 
 
 13 
 
 U 
 
 16. 
 17. 
 18. 
 
 Clause. 
 
 16. Seller of goodwill receiving 
 share of profits to be post- 
 poned to other creditors for 
 value in case of bankruptcy, 
 &c., of buyer. 
 What is a firm- 
 Number of persons in a firm. 
 Choice of finn name. 
 
 19. Revocation of continuing gua- 
 
 ranty by change in firm. 
 
 20. liability of partners. 
 
 21. Liabilities of outgoing and in- 
 
 coming partners. 
 
 22. Persons liable by "holding 
 
 out. ' ' 
 
 23. Partners bound by acts on be- 
 
 half of firm. 
 
 24. Power of partner to bind the 
 
 firm. 
 
 25. Special powers of partners. 
 20. Special powers of partners in 
 
 certain firms. 
 27. Partner using credit of firm for 
 
 private purposes. 
 2S. Efi:'eot of notification that firm 
 
 will not be bound by acts of 
 
 partner. 
 Admissions and representations 
 
 of partners. 
 Notice to acting partners to be 
 
 notice to the firm. 
 
 29 
 
 30 
 
PARTNERSHIPS BILL (1883). 
 
 163 
 
 "Clause. 
 
 ■31. Liability for -wrongs joint and 
 several. 
 
 -32. Liability of the firm for -wrongs. 
 
 -33. MisappUoation of money or 
 property received for or in 
 custody of the firm. 
 
 -34. Improper employment of trust 
 propertyforpartnership pur- 
 poses. 
 
 Pabt II. 
 
 The relations of Partners to one 
 another. 
 -35. Terms of partnership may be 
 varied only by consent of all 
 partners. 
 -36. Partnership property. 
 -37. Property bought with partner- 
 diip money. 
 
 38. Conversion into personal estate 
 
 for some purposes of land 
 held as partnership pro- 
 perty. 
 
 39. Conversion of joint into sepa- 
 
 rate estate, or conversely, by 
 agreement of partners. 
 
 40. What is a partner's share. 
 
 41. Procedure against partnership 
 
 property for a partner's 
 separate judgment debt. 
 
 42. Rules as to interests and duties 
 
 of partners, subject to special 
 agreement : 
 
 1. Presumed equality of 
 
 shares. 
 
 2. Eight of partners to 
 
 indemnity and contri- 
 bution. 
 
 3. Eight of partners to 
 
 take part in business. 
 
 4. Dutyof gratuitous dili- 
 
 gence in partnership 
 business. 
 6. Po-wer of majority to 
 decide diEEerences. 
 
 6. Admission of new part- 
 
 ners. 
 
 7. Change in nature or 
 
 place of business. 
 
 8. Custody and inspection 
 
 of partnership books. 
 
 43. Partner cannot be expelled un- 
 
 less under express power. 
 
 44. Eetirement from partnership 
 
 for a term only by consent. 
 
 45. Eetirement from partnership 
 
 at wiU. 
 
 Clause. 
 
 46. Where partnership for term is 
 
 continued over, continuance 
 on old terms presumed. 
 
 47. Partners must act for common 
 
 advantage. 
 
 48. Partners must not mate private 
 
 gain by partnership transac- 
 tions or by means of partner- 
 ship connection. 
 
 49. Partner must not compete with 
 
 firm. 
 
 Pabi III. 
 
 The Dissolution of Partnerships 
 
 and its consequences. 
 
 50. Dissolution by expiration or 
 
 notice. 
 
 51. Dissolution by bankruptcy, 
 
 death, &c. 
 
 52. Dissolution by illegality of 
 
 partnership. 
 
 63. Dissolution by the Court. 
 
 54. Eights of creditors against ap- 
 parent members of firm. 
 
 65. Eight of partners to notify dis- 
 
 solution. 
 
 66. Continuing authority of part- 
 
 ners for purposes of winding- 
 up. 
 
 57. Eights of partners as to appli- 
 
 cation of partnership pro- 
 perty. 
 
 58. Sale of good-will on disso- 
 
 lution. 
 
 59. Eight of partners to restrain 
 
 use of partnership name. 
 
 60. Peculiar rights in special cases 
 
 of dissolution : apportion- 
 ment of premium in certain 
 cases where partnership pre- 
 maturely dissolved : lien on 
 assets where partnership dis- 
 solved for fraud. 
 
 61. Eight of outgoing partner in 
 
 certain cases to share pro- 
 fits made after dissolution. 
 
 62. Exercise of option to purchase 
 
 outgoing partner's share. 
 
 63. Eetiring or deceased partner's 
 
 share to be a debt. 
 
 64. Eule for distribution of assets 
 
 on final settlement of ac- 
 counts. 
 
 Pabt IV. 
 
 65. Eepeal of 28 & 29 Vict. e. 86, 
 and 19 & 20 Vict. c. 97, s. 4. 
 
 m2 
 
164 APPENDIX. 
 
 A BILL to consolidate and amend the Law of Partnerships. 
 
 Be it enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual and. 
 Temporal, and Commons, in this present Parliament assembled, 
 and by the authority of the same, as foUows : 
 
 Preliminary. 
 Short title. 1. This Act may be cited as the Partnership Act, 1883. 
 
 Commence- 2. This Act shall commence and come into force on the- 
 
 ment of Act. ^^^ ^^^ ^^ January one thousand eight hundred and eighty- 
 four. 
 
 Extent of Act. 3. This Act shall not extend to Scotland. 
 
 Interpreta- ^' '^^ ^^^ ^"^^ ^^ following words and expressions are used 
 
 tion of terms, in the following senses, unless a different intention appears- 
 from the context : 
 
 " Court " includes every Court, judge and magistrate havings 
 
 jurisdiction in the case. 
 " Business " includes any trade, occupation, or profession. 
 "Person" includes any body of persons corporate or un- 
 
 incorporate. 
 " Writing " includes print, and "written " includes printed. 
 "Land " includes hereditaments, corporeal and incorporeal, 
 of any tenure. 
 
 Application 5. This Act shall not apply to any company or association, 
 
 of Act. ^.j^^j^ ig_ 
 
 (o.) Registered as a company under the Companies Act, 
 25 & 26 Vict. 1862, or any other Act of Parliament for the time- 
 
 being in force and relating to the registration of 
 joint-stock companies ; or 
 
 (b.) Formed or incorporated by or in pvirsuance of any other 
 Act of Parliament or letters patent or Eoyal Charter j 
 or 
 
 (c.) A company engaged in working mines within and 
 subject to the jurisdiction of the Stannaries. 
 
PARTNERSHIPS BILL (1883). 165 
 
 PAET I. 
 
 Of Partners, and their liability and authority in respect of 
 Partnership Dealings. 
 
 6. — (1.) Partnership is the relation which subsists between PartnersMp 
 "persons who have agreed to carry on business and share profits defined. 
 in some way in common.' 
 
 (2.) In deciding whether a partnership does or does not Question of 
 
 • exist in any particular case, the Court shall have regard to te'dedd^ W 
 the true contract and intention of the parties as appearing true intention 
 from the whole facts of the case. °* P^^*^""- 
 
 7. Joint tenancy, tenancy in common, or part ownership, Part owner- 
 . shall not of itself create a partnership as to anything so held Lgf+e'lajw-. 
 •or owned, whether there is or is not a partnership between nersMp. 
 the tenants or owners as to any profits made by the use 
 
 ' thereof. 
 
 8. The sharing of gross returns shall not of itself create Sharing of 
 a partnership, whether the persons sharing such returns have ^t'^'^^reate 
 
 -or have not a joint or common interest in any property from partnership, 
 which or from the use of which the returns are derived. 
 
 9. The receipt of a share of the profits or of a payment Sharing 
 
 ■ contingent upon or varying with the profits of any business neoesa^aSy 
 shall not of itseK make the person receiving the share or partnership, 
 payment a partner with the person carrying on the business. 
 
 10. The receipt of a debt or other liquidated amount by Payment out 
 instalments or otherwise out of the accruing profits of any toCTeSemrt- 
 business shall not of itself make any person receiving the nership. 
 
 • debt or sum a partner in the business. 
 
 1 The definition was altered in Committee to this fon^, which appears 
 to me vag^e and clumsy. The words "in some way in common" add 
 nothing to the meaning. Such language may become a judge who 
 wishes to disclaim formal definition. It is not fit for the Legislature. 
 Moreover it is not clear whether or not the words apply (whatever the 
 intended effect of their application may be) to the words "carry on 
 "business " as weU as to "share profits." 
 
166 
 
 APPENDIX. 
 
 As to person 
 advancing 
 money for 
 share of 
 profits. 
 
 11. The advance of money by way of loan to a person 
 engaged or about to engage in any business upon a contract 
 in writing with that person that the lender shall receive a rate- 
 of interest varying with the profits, or shall receive a share of 
 the profits arising from carrying on the business, shall not of 
 itself constitute the lender a partner with the person or- 
 persons carrying on the business or render him responsible as 
 such. 
 
 As to agent 
 remunerated 
 l>y share of 
 profits. 
 
 12. A contract for the remuneration of a servant or agent 
 of any person engaged in any business by a share of the 
 profits of the business shall not of itself render the servant or 
 agent responsible as a partner therein, nor give him the rights 
 of a partner. 
 
 As to -widows 
 or children of 
 
 13. A person being the widow or child of a deceased 
 partner, and receiving by way of annuity a portion of the 
 
 ners receiving profits made in the business in which the deceased person 
 shareofprofits -^^s a partner, shall not by reason only of such receipt be 
 
 deemed to be a partner in the business or to be subject to any 
 
 liabilities incurred therein. 
 
 As to seller of 
 good-will 
 receiving 
 share of 
 profits. 
 
 14. A person receiving by way of annuity or otherwise a 
 portion of the profits of any business in consideration of the 
 sale by him of the goodwill of the business shall not by 
 reason only of the receipt be deemed to be a partner of or be 
 subject to the liabilities of the person carrying on the 
 business. 
 
 Seller of good- 
 ■vvill receiving 
 share of 
 profits to he 
 postponed to 
 other creditors 
 for value in 
 case of bank- 
 ruptcy, &c. of 
 buyer. 
 
 15. In the event of any person to whom money has been 
 advanced upon such a contract as aforesaid, or any buyer of a 
 goodwill in consideration of a share of the profits of the 
 business, being adjudged a bankrupt, entering into an 
 arrangement to pay his creditors less than twenty shillings in 
 the pound or dying in insolvent circumstances, the lender of 
 any such loan as aforesaid shall not be entitled to recover 
 anything in respect of his loan, and the seller of the goodwill 
 shall not be entitled to recover anything in respect of the 
 shai-e of profits contracted for, until the claims of the other- 
 
PARTNERSHIPS BILL (1883). 167 
 
 creditors of the borrower or buyer for valuable consideration 
 in money or money's worth have been satisfied.' 
 
 16. Persons who have entered into partnership with one What is a 
 another are called collectively a fiim, and the name under ™'' 
 which their business is carried on is called the firm-name. 
 
 17. A firm may consist of any number of persons not Numterof 
 exceeding ten where the business of the partnership is ^^° "^ 
 banking, and not exceeding twenty where it is any other 
 business.* 
 
 18. Subject to all statutory and other rules of law for the Choice of 
 protection of trade marks, trade names, and rights incident to ™™-iiame. 
 the goodwill of any business, partners may carry on their 
 business under any firm-name they think proper. 
 
 19. A continuing guaranty given either to a firm or to a EeTocation of 
 
 third person in respect of the transactions of a firm is, in the contmiung 
 
 '^ ^ ' guaranty by 
 
 absence of agreement to the contrary, revoked as to future change in 
 
 transactions by any change in the constitution of the firm to ^™' 
 
 which, or in respect of the transactions of which, the guaranty 
 
 was given. 
 
 20. Every partner in a firm is liable jointly with the other Liability of 
 partners for all debts and obligations incurred while he is a P^^'^sre. 
 partner and in the usual course of partnership business by 
 
 or on behalf of the firm ; and after his death his estate is 
 also severally liable for such debts and obligations, so far as 
 they remain unsatisfied. 
 
 21. — (1.) A partner who retires from a firm does not thereby Liabilities of 
 
 cease to be liable for partnership debts contracted before his pi^^go^g and 
 
 ■*■ incoming 
 
 retirement. partners. 
 
 (2.) A person who is admitted as a partner into an existing 
 
 firm does not thereby become liable to the creditors of the 
 
 firm for anything done before he became a partner. 
 
 1 Clauses U — lb are re-enactment of 25 & 26 Vict. c. 86. 
 ' Companies Act, 1862, s. 4. 
 
168 APPENDIX. 
 
 (3.) A retiring partner may be discharged from any existing 
 liabilities, and an incoming partner may become subject 
 thereto, by an agreement to that effect between the members 
 of the firm as newly constituted and the creditors. 
 
 (4.) Such agreement as mentioned in the last sub-section 
 may be either express or inferred as a fact from the course of 
 dealing between the creditors and the firm as ne-wly consti- 
 tuted. 
 
 Persons Hable 22. — (1.) Every one who by -words spoken or -written or by 
 by^ '^'holding: conduct represents himself, or who knowingly suffers himself 
 to be represented, as a partner in a particular firm is liable as 
 such partner to any one who has on the faith of any such 
 representation given credit to the firm, whether the repre- 
 sentation has or has not been made or communicated to the 
 particular person so giving credit by or with the knowledge 
 of the apparent partner making or suffering the representa- 
 tion. 
 
 (2.) Provided that where after a partner's death the part- 
 nership business is continued in the old firm-name, the con- 
 tinued use of that name or of the deceased partner's name as 
 part thereof shall not of itself make his executors or admin- 
 istrators estate or effects liable for any partnership debts 
 contracted after his death. 
 
 Partners 23. Acts and instruments relating to the business of the 
 
 on'beh^ of ^^"^ ^'^'^ ^^^^ ^^^ executed in the firm-name, or in any other 
 firm. manner showing an intention to bind the firm, by any person 
 
 thereto authorized, whether a partner or not, shall be binding 
 
 on all the partners. 
 
 Provided that this section shall not affect any general rule 
 
 of law relating to the execution of deeds. 
 
 Power of 24. Subject to the provisions of this Act the acts of every 
 
 biQd"ae firm. P^^*^^'-' ^^^ ^oes any act necessary for or usually done in 
 carrying on business of the kind carried on by the firm of 
 which he is a member shall bind his partners to the same 
 extent as if he were their agent duly appointed for that pur- 
 pose ; unless the partner so acting has in fact no authority 
 
PABTNEESEIP8 BILL (1883). 169 
 
 to act for the firm in the particular matter, and the person 
 with -whom he is dealing 
 
 (a.) knows that he has no authority, or 
 
 (6.) does not know him to be a partner. 
 
 25. Suhiect to the provisions of the last section, every part- Special 
 
 nOTT^^TS Ox 
 
 ner may bind the firm by any of the following acts : partners. 
 
 (a.) He may sell any goods or personal chattels of the firm. 
 
 (J.) He may purchase on account of the firm any goods of 
 a kind necessary for or usually employed in the busi- 
 ness carried on by it. 
 
 (c.) He may receive payment of debts due to the firm, and 
 give receipts or releases for them. 
 
 (rf.) He may hire and engage servants and agents for any 
 purposes of the partnership business for which 
 servants or agents are necessarily or usually em- 
 ployed. 
 
 (e.) He may draw cheques on the bankers of the firm in the 
 firm-name. 
 
 26. In addition to the powers mentioned in the last fore- Special 
 going section, and subject as therein mentioned, every member partners in 
 of a partnership carrying on business of a kind in which any certain firms, 
 of the following acts is usually done, may bind the firm by the 
 
 same respectively : 
 
 (a.) He may draw, accept, indorse, make, and issue bills 
 and other negotiable instruments in the name of the 
 firm. 
 
 (b.) He may borrow money on the credit of the firm. 
 
 (c.) He may for the purpose of such borrowing or of secur- 
 ing an existing debt pledge any goods or personal 
 chattels belonging to the firm. 
 
 (d.) He may for the like purposes make an equitable mort- 
 gage by deposit of deeds or otherwise of real estate 
 or chattels real belonging to the firm.' 
 
 ' On the last revision of the BUI this clause was framed as it now 
 stands, in order to get rid of the formal distinction hetween trading and 
 ■other partnerships. And now that the enumeration of "traders" has 
 disappeared from the Bankruptcy Act of 1883, the amendment would 
 be not only convenient bat necessary. Tet ak unwaiy reader might 
 infer that it is always an open question of fact ■inhat is usual in the par- 
 ■tioular business, which is not the case. 
 
170 
 
 APPENDIX. 
 
 Partner using 
 credit of firm 
 for private 
 purposes. 
 
 27, Where one partner pledges the credit of the firm for a. 
 purpose apparently not connected with the partnership affairs, 
 the firm shall not be bound, unless he is in fact specially 
 authorised by the other partners ; but this section shall not 
 affect any liability which may arise from any other partner 
 having so conducted himself as to give reasonable ground to 
 the party dealing with the partner first mentioned for believiag 
 him to be so authorized. 
 
 Effect of noti- 
 fication that 
 firm will not 
 "be bound by- 
 acts of 
 partner. 
 
 28. AU or any of the partners in a firm may give notice 
 that the firm will not be bound by acts, or by some class of 
 acts, done in the name of the firm by any one or more of the 
 partners ; and if the partner or partners last aforesaid deal in 
 the name of the firm in any matter comprised in the notice- 
 with any person to whose knowledge the notice has come, 
 that dealing shall not be binding on the firm. 
 
 Admissions 
 and repre- 
 sentations of 
 partners. 
 
 29. An admission made by any partner concerning tha 
 partnership affairs shall be relevant against the firm, and a 
 representation made by any partner to any person concerning 
 the partnership affairs shall have the same effect as against 
 the firm, and so far as concerns the civil rights and KabUities 
 of the partners, as if it had been made by all the partners : 
 provided that this section shall not apply to a representation 
 made by one partner as to the extent of his own authority to 
 bind the firm. 
 
 Notice to act- 
 ing partners 
 to be notice to 
 the firm. 
 
 30. Notice to any partner who habitually acts in the 
 partnership business of any matter relating to partnership 
 affairs shall be deemed to be notice to the firm, except in the 
 case of a fraud upon the firm committed by or with the con- 
 sent of that partner. 
 
 Liability for 31. Every partner shall be liable jointly with his co- 
 wS'several'* pai'tners and also severally for everything for which the firm 
 
 while he is a partuer therein becomes liable under either of 
 
 the two next following sections. 
 
 Liability of 
 the firm for 
 -wrongs. 
 
 32. Whore by any wrongful act or omission of any partner 
 acting in the ordinary course of the business of the firm, loss. 
 
PARTNERSHIPS BILL (1883). 171 
 
 or injury is caused to any person not being a partner in the 
 firm, or any penalty is incurred, the firm is liable tberefor to 
 the same extent as tbe partner so acting or omitting to act. 
 
 33. — (1.) Where any money or property of a third person Misapplica- 
 is received by one partner, acting within the scope of his real o^^propOTty ^ 
 or apparent authority in the partnership affairs, and is mis- received for or 
 applied by that partner, and where any money or property ^J'lBrm.''*' 
 of a third person being as such in the custody of the firm is 
 misapplied by any partner, the firm shall be liable to make 
 good the loss. 
 
 (2.) For the purposes of this section money shall be deemed 
 to be in the custody of the firm when it has been paid to any 
 agent of the firm, or paid or credited to the account of the 
 firm with any person, in the ordinary course of business, or 
 under such circumstances that a partner using ordinary dili- 
 gence in the partnership affairs would be aware of the 
 payment or transaction. 
 
 34. If a partner, beiag a trustee, improperly employs Improper em- 
 trust property in the business or on the account of the partner- trustproperty 
 ship, no other partner shall be liable for the trust property to for partner- 
 the persons beneficially interested therein unless he ^ ^ ^^^ 
 
 (a.) Kjiew of the breach of trust, or 
 
 {b.) With reasonable diligence might have known it. 
 
 In either of the last-mentioned cases the partner or partners 
 having such knowledge or means of knowledge as aforesaid 
 shall be liable for the breach of trust as if he or they had 
 been a trustee or trustees of the misapplied trust property, 
 and jointly and severally if more than one. 
 
 PAET II. 
 
 The relations of Partners to one another. 
 
 35. Where the mutual rights and duties of partners have Terms of part- 
 been determined by a special contract between them, the con- ^ereJup may 
 tract may be rescinded or varied by the consent of all the by consent of 
 partners. aU partners. 
 
 The consent required by this section may either be express 
 or inferred from a habitual course of dealing. 
 
172 
 
 APPENDIX. 
 
 Partnership 
 property. 
 
 36.— (1.) The partners in any firm are tenants or owners 
 in common of all property and rights and interests in property 
 originally brought into the partnership stock or acquired, 
 whether by purchase or otherwise, on account of the firm, or 
 for the purposes and in the course of the partnership business. 
 Such property, rights, and interests are called in this Act 
 partnership property. 
 
 (2.) Provided that the legal estate or interest in any land 
 which is partnership property shall devolve according to the 
 nature and tenure thereof, and the general rules of law thereto 
 applicable, but in trust, so far as necessary, for the persons 
 beneficially interested in the land under this section. 
 
 (3.) "Where co-owners of an estate or interest in any land, 
 not being itself partnership property, are partners as to 
 profits made by the use of that land, and purchase other land 
 out of the profits to be used in like manner, the land so 
 purchased shall belong to them, in the absence of an agree- 
 ment to the contrary, not as partners, but as co-owners for 
 the same respective estates and interests as held by them in 
 the land first mentioned at the date of the said purchase. 
 
 Property 37. Unless a contrary intention appears by express agree- 
 
 mr^rshi^ iKieJit or by the nature of the transaction, property bought 
 money. with money belonging to the firm shall be deemed to have 
 
 been bought on account of the firm. 
 
 Conversion, 
 into personal 
 estate for some 
 purposes of 
 land lield as 
 partnersMp 
 property. 
 
 38. "Where land has become partnership property, it shall 
 be treated as between the partners (including the representa- 
 tives of a deceased partner), and also as between the heirs of 
 a deceased partner and his executors or administrators, as 
 personal and not real estate, unless a contrary intention 
 appears either by express agreement or by the conduct of the 
 partners. 
 
 Conversion of 39. Partners may at any time by agreement between 
 ]omtmtosepa- themselves convert partnership property into the several 
 conyersely, by property of any cne or more of the partners, or the several 
 ugreement of property of any partner into partnership property. 
 
 Such conversion, if made in good faith, shall take effect 
 
 partners. 
 
PARTNERSHIPS BILL (1883). 173 
 
 not only as between the partners, but as against the creditors 
 of the firm and of the several partners. 
 
 Provided that if the firm or any partner whose separate 
 estate is afEected by any agreement for conversion becomes 
 bankrupt or is insolvent after the agreement is made and 
 before it is completely executed, the property shall not be 
 converted. 
 
 40. The share of a partner in the partnership property at What is a 
 any time is the proportion of the then existing partnership ^^^ "^ ^ 
 assets to which he would be entitled if the whole were realised 
 and converted into money, and after all the then existing 
 debts and liabUities of the firm had been discharged. 
 
 41. — (1.) After the commencement of this Act a writ of Procedure 
 execution shall not issue against any partnership property nera^ppro-" 
 except upon a judgment against the firm. perty for a 
 
 (2.) The High Court of Justice, or a judge thereof, may, ^e^^ate^dg- 
 on the application by summons of any judgment creditor of a ment debt, 
 partner, make an order chargLug that partner's share in the 
 partnership assets with payment of the amount of the judg- 
 ment debt and interest thereon, and may by the same or a 
 subsequent order direct all accounts and inquiries necessary 
 or proper for ascertaining the value of the share so charged, 
 and give all other orders and directions (including, if necessary, 
 an order for dissolving the partnership and all directions 
 incidental thereto) which might have been given if the charge 
 had been made in favour of the judgment creditor by the 
 partner. 
 
 (3.) A summons imder this section shall be served on all 
 the partners. 
 
 (4.) Provided that every order for sale or foreclosiire made 
 under this section shall include liberty for the other partner 
 or partners to purchase or redeem the charged share. 
 
 (5.) For the purposes of this section, the terms " firm " and 
 "partners" shall include every unincorporated company and 
 association formed for purposes of gain, and the members 
 thereof; and "writ of execution" shall include writs of fieri 
 facias, elegit, sequestration, and attachment, and all subse- 
 quent writs that may issue for giving effect thereto. 
 
174 
 
 APPENDIX. 
 
 Rules as to 
 interests and 
 duties of part- 
 ners subject 
 to special 
 agreement. 
 
 Presumed 
 ■equality of 
 shares. 
 
 Bight of part- 
 ners to in- 
 •demnity and 
 contribution. 
 
 Plight of part- 
 ners to take 
 part in busi- 
 ness. 
 
 Duty of gra- 
 tuitous dili- 
 gence in 
 partnership 
 business. 
 
 Power of 
 majority 
 to decide 
 •differences. 
 
 Admission 
 of new 
 partners. 
 
 Change in 
 nature or place 
 «f business. 
 
 42. The interests of partners in the partnership property 
 and their rights and duties in relation to the partnership shall 
 be determined, subject to any agreement between the partners, 
 by the following rules : 
 
 (1.) AH the partners are entitled to share equally in the 
 capital and profits of the business, and must contribute 
 equally towards the losses whether of capital or otherwise 
 sustained by the partnership : 
 (2.) The firm must indemnify every partner for and against 
 payments made and personal liabilities incurred by 
 him — 
 
 {a.) In the ordinary and proper conduct of the busi- 
 ness of the firm ; or, 
 
 (5.) In or about anything necessarily done for the 
 preservation of the business or property of the firm; 
 and as to actual payments or advances, with interest at 
 the rate of five per cent, per annum from the date of 
 the payment or advance : 
 (3.) Every partner may take part in the management of 
 
 the partnership business : 
 (4.) Every partner must attend diligently to the business 
 of the partnership, and shall not be entitled to any 
 remuneration for acting in such business : 
 (5.) All differences which arise as to matters in the ordinary 
 course of the partnership business shall be decided by a 
 majority of the partners ; provided that the decision 
 must be arrived at in good faith for the interest of the 
 firm as a whole, and not for the private interest of all 
 or any of the majority, and that every partner must have 
 an opportunity of being heai-d in the matter. 
 
 This proviso extends to powers conferred on a majority 
 of the partners by express agreement : 
 (6.) No person may be introduced as a partner without the 
 
 consent of all existing partners : 
 (7.) No change may be made in the conduct or regulation 
 of the partnership affairs without the consent or authority 
 of a majority of the partners, and no change may be 
 made in the nature of the partnership business or the 
 place where it is carried on without the consent of aU. 
 existing partners : 
 
PARTNERSHIPS BILL (1883). 175 
 
 •(8.) The partnership hooks shall be kept at the place of Custody and 
 business of the partnership (or the principal place, if mapectiraiof 
 there is more than one), and every partner may have books, 
 access to them, and may inspect and transcribe the same, 
 or any of them, when he thinks proper. 
 
 43. No majority of the partners can expel any partner Partner oan- 
 Tinless a power to do so has been conferred by express agree- uniea^/^^er 
 :ment between the partners. express 
 
 Where such power is conferred, it may be exercised only in P"^^''- 
 good faith with a view to the benefit of the firm, and the 
 partner whom it is sought to expel must have an opportunity 
 •of being heard. 
 
 44. Where a partnership has been entered into for a fixed Retirement 
 "term, no partner can retire from it during that term, except ^^^^^^ ji™ 
 with the consent of all the partners, or in the exercise of an only by con- 
 option previously conferred by express agreement. ^ 
 
 45. Where no fixed term has been agreed upon for the Eetirement 
 ■duration of the partnership, any partner may determine the *F°™ partner- 
 partnership at any time upon giving express notice of his in- 
 tention so to do to aU the other partners. 
 
 Where the partnership has originally been constituted by 
 •deed, a notice in writing, and signed by the partner giving 
 it, shall be sufficient for this purpose. 
 
 46. Where a partnership entered into for a fixed term is Where part- 
 
 oontinued after the term has expired, and without any express ^^'^^'^P ^°^ 
 
 ^ , J r term is con- 
 
 new agreement, the rights and duties of the partners shall tinued oyer, 
 
 remain the same as they were at the expiration of the term, co"t™i^ai"=e 
 •' ^ .'on old terms 
 
 BO far as consistent with the right of any partner to determine presumed. 
 
 the partnership at will. 
 
 A continuance of the business by the partners or such of 
 
 them as habitually acted therein during the term, without any 
 
 settlement or liquidation of the partnership affairs, shall be 
 
 presumed to be a continuance of the partnership. 
 
 47. Partners are bound to carry on the business of the Partners must 
 
 act fo 
 mon i 
 tage. 
 
 partnership for the greatest common advantage, to be just '*°* for com 
 
176 
 
 APPENDIX. 
 
 Partners must 
 not make pri- 
 vate gain by 
 partnership 
 transactions 
 or by means of 
 parbiership 
 connection. 
 
 and faithful to each other, and to render true accounts and 
 full information of all things affecting the partnership to any 
 partner or his legal representatives. 
 
 48. Every partner must account to the firm for any benefit 
 derived by him without the consent of the other partners 
 from any transaction concerning the partnership, or from any 
 use by him of the partnership property, nam.e or business, 
 connection. 
 
 This section shall apply to transactions undertaken after a 
 partnership has been dissolved by the death of a partner, and 
 before the affaii's thereof have been completely wound up, 
 either by any surviving partner or by the representatives of 
 the deceased partner. 
 
 Partner must 49. If a partner, without the consent of the other partners, 
 with fim?*^ carries on any business competing or interfering with that of 
 
 the firm, he must account for and pay over to the firm aU 
 
 profits made by him in that business. 
 
 Dissolution 
 by expiration 
 or notice. 
 
 PAET m. 
 
 The Dissolution of Partnerships, and its consequences. 
 50. A partnership shall be dissolved— 
 
 (a.) If entered into for a fixed term, by the expiration of 
 
 that term : 
 (6.) If entered into for a single adventure or undertaking, by 
 
 the termination of that adventure or undertaking : 
 (c.) If entered into for an undefined time, by any partner 
 
 giving notice to the other or others of his intention 
 
 to dissolve the partnership. 
 In the last-mentioned case the partnership shaU be 
 
 dissolved as from the date of the communication of 
 
 the notice. 
 
 Sunicf ^ ^]' ®?^''1 ^?. ''''^ agreement between the partners, every 
 
 A^X^' Pai-tnership shall be dissolved by any of the foUowing events: 
 
 (a.) The alienation of any pai-tner's share by bankruptcy 
 
 or otherwise by operation of law : 
 
PABTNERSHIP8 BILL (1883). 177 
 
 (5.) The death of any partner : 
 
 (c.) In the case of a partnership not for a fixed term, if 
 
 any partner assigns or incumhers his interest in the 
 
 partnership property or profits. 
 
 62. A partnership shall in every case be dissolved by the Dissolution by 
 happening of any event which makes it unlawful for the partnership 
 business of the firm to be carried on or for the members of 
 the firm to carry it on in partnership. 
 
 53. On application by a partner the Court may decree a Dissolution by- 
 dissolution of the partnership in any of the following cases : e our . 
 
 (o.) "When an acting partner is found lunatic by inquisi- 
 tion, or is shown to the satisfaction of the Court to 
 be of permanently unsound mind, in either of which 
 cases the application may be made as well on behalf 
 of that partner by his committee or next friend as 
 by any other partner : 
 
 (J.) When a partner, other than the partner suing, becomes 
 in any other way permanently incapable of perform- 
 ing his part of the partnership contract : 
 
 (c.) When a partner, other than the partner suing, is con- 
 victed of any crime or becomes liable to a criminal 
 prosecution : 
 
 {d.) When a partner, other than the partner suing, wilfully 
 or persistently commits a breach of the partner- 
 ship agreement, or otherwise so conducts himself in 
 matters relating to the partnership business that it 
 is not reasonably practicable for the other partner or 
 partners to carry on the business in partnership with 
 him: 
 
 (e.) When a partner, other than the partner suing, assigns 
 or incumbers his interest in the property or profits of 
 the firm : 
 
 {/•) When the business of the partnership can only be 
 carried on at a loss : 
 
 {g.) Whenever in any case circumstances have arisen which, 
 in the opinion of the Court, render it just and equit- 
 able that the partnership be dissolved. 
 
 p. N 
 
178 
 
 APPENDIX. 
 
 Eights of 
 
 creditors 
 
 against 
 
 apparent 
 
 members of 
 
 firm. 
 
 64. The rights of a creditor of a firm against its apparent 
 members shall not be affected by any dissolution or change ia 
 the firm of which the creditor had not notice. 
 
 An advertisement in the London Gazette as to a firm whose 
 principal place of business is in England, and in the Dublin 
 Gazette as to a firm whose principal place of business is iu 
 Ireland, shall be deemed to be notice as to creditors who were 
 not in fact customers of the firm before the date of the dis- 
 solution or change so advertised. 
 
 Provided that the estate of a partner who dies, or who 
 becomes bankrupt, or of a partner who, not having been known 
 to the creditor to be a partner, retires from the firm, shall not 
 be liable for partnership debts contracted after the date of the 
 death, bankruptcy, or retirement respectively. 
 
 Bight of 
 partners to 
 notify disso- 
 lution. 
 
 55. On the dissolution of a partnership or retirement of a 
 partner any partner may publicly notify the same, and may 
 require the other partner or partners to concur for that pur- 
 pose in aU necessary or proper acts, if any, which cannot be 
 done without his or their concurrence. 
 
 Continuing 
 authority of 
 partners for 
 purposes of 
 ■winding-up. 
 
 56. After the dissolution of a partnership the authority of 
 each partner to bind the firm, and the other rights and 
 obligations of the partners, shall continue notwithstanding the 
 dissolution so far as may be necessary to settle and liquidate 
 existing demands, and to complete transactions begun but 
 unfinished at the time of the dissolution, but not otherwise. 
 
 Provided that the firm shall in no case be bound by the 
 acts of a bankrupt partner, but this proviso shall not affect 
 the liability of any person who has represented himself or 
 knowingly sufitered himself to be represented as a partner. 
 
 Eights of 57. On the dissolution of a partnership every partner shall 
 
 partners as to i^e entitled, as against the other partners in the firm, and all 
 
 application of , . . , , , , , . „ , . 
 
 partnership persons claiming through them m respect of their interests as 
 property. partners, to have the property of the pai-tnership applied in. 
 
 payment of the debts and liabilities of the firm, and to have 
 the surplus assets after such pajanent applied in paj-ment of 
 what may be due to the partners respectively after deducting 
 what may be due from them as partners to the firm ; and for 
 
PARTNERSHIPS BILL (1883). 179 
 
 that purpose any partner or Ws representatives may upon the 
 termination of the partnership apply to the Court to wind up 
 "the business and afEairs of the firm. 
 
 58. On the dissolution of a partnership, every partner Sale of good- 
 shalL be entitled, in the absence of any agreement to the \aiaon. 
 contrary, to have the goodwill of the business sold for the 
 common benefit of aU the partners. 
 
 59. After a dissolution, every partner in the dissolved firm Eight of 
 
 or his representatives may, in the absence of any agreement je^uirTuse of 
 to the contrary, restrain any other partner or his repre- partnership 
 sentative from carrying on the same business under the firm- '^*'"^- 
 name until the affairs of the firm have been wound up, and 
 the partnership property disposed of. 
 
 60. — (1.) Where one partner has paid a premium to another Peculiar 
 
 on enterina: into a partnership for a fixed term, and the "glits"! 
 
 ^ . '^ . . special cases 
 
 partnership is dissolved before the expiration of that term of dissolution: 
 
 otherwise than by the death of a partner, the Court may Apportion- 
 
 order the repayment of the premium, or of such proportionate ^um°in^CT"- 
 
 part thereof as it thinks just, having regard to the terms of tain cases 
 
 the partnership contract and to the length of time during ^gj.g^J'^'^ " 
 
 which the partnership has continued ; unless prematurely 
 
 dissolved, 
 (a.) the dissolution is, in the judgment of the Court, wholly 
 
 or chiefly due to the misconduct of the partner who 
 
 paid the premium, or 
 
 (h.) the partnership has been dissolved by an agreement 
 
 containing no provision for a return of any part of 
 
 the premium. 
 
 (2.) "Where a partnership contract is rescinded on the ground Lien on assets 
 
 of the fraud of one of the parties thereto, the defrauded party '^^lere part- 
 T 1 ii>i 1- nership dis- 
 
 shaU be entitled to a lien on the surplus of the partnership solved for 
 
 assets, after satisfying the partnership liabilities, for any sum fraud. 
 
 of mpney paid by him for the purchase of an interest in the 
 
 partnership property, and shall also be entitled to stand in 
 
 the place of the creditors of the firm for any payments made 
 
 by him in respect of the partnership liabilities. 
 
 n2 
 
180 
 
 APPENDIX. 
 
 EigMof out- 61.— (1.) Where any member of a firm has died or otherwise 
 going partner geased to he a partner, and the surviving or continuing partner 
 oasefto'share Or partners carry on the business of the firm with its capital 
 profits made qj assets without any final settlement of accounts as between 
 after dissolu- ^^^ ^^^ ^^^ ^^^ outgoing partner or his estate, there, in the 
 absence of any agreement to the contrary, the outgoing partner 
 or his estate is entitled at the option of himself or his repre- 
 sentatives to such share of the profits made since the dissolu- 
 tion as the Court may find to be attributable to the use of" 
 his capital or assets, or to the amount of his capital or assets 
 with interest thereon at five per cent, per anmmi. 
 
 (2.) In determining how far the profits made since the- 
 dissolution are attributable to the outgoing partner's capital, 
 the Court shall have regard to the nature of the business, the 
 amount of capital from time to time employed in it, the skiU 
 and industry of each partner taking part in it, and the conduct 
 of the parties generally. 
 
 62. Where by the partnership contract an option is given 
 to surviving or continuing partners to purchase the interest of" 
 a deceased or outgoing partner, and that option is duly exer- 
 cised, the estate of the deceased partner, or the outgoing- 
 partner or his estate, as the case may be, shall not be entitled 
 to any further or other share of profits ; but if any partner 
 assuming to act in exercise of the aforesaid option does not 
 in all material respects comply with the terms thereof, he shall 
 be liable to account for subsequent profits under the last 
 preceding section. 
 
 63. The amount due from surviving or continuing partners 
 to an outgoing partner or the representatives of a deceased 
 partner in respect of the outgoing or deceased partner's share 
 shall, subject to any agreement between the partners, be a 
 simple contract debt accruing at the date of the dissolution or 
 death. 
 
 Exercise of 
 option to 
 purchase out- 
 going part- 
 ner's share. 
 
 Retiring or 
 deceased 
 partner's 
 share to be 
 a debt. 
 
 Rule for dis- 64. In settling accounts between the partners after a 
 assete'on final dissolution of partnership, the following rules shall be- 
 settlementof observed (subject as to the payments to partners to anv 
 
 accounts. .s * " x- j 
 
 agreement) : 
 
PARTNERSHIPS BILL (1883). 181 
 
 («.) Losses, including losses and deficiencies of capital, 
 shall be paid first out of profits, next out of capital, and 
 lastly, if necessary, by the partners individually in the pro- 
 portion in which they were entitled to share profits : 
 
 (J.) The assets of the firm, including the sums' contributed 
 by the partners to make up losses or deficiencies of capital, 
 shall be applied in the following manner and order : 
 
 1. In paying the debts and liabilities of the firm to 
 persons who are not partners therein : 
 
 2. In paying to each partner rateably what is due from 
 the firm to him for advances as distinguished from capital : 
 
 3. In paying to each partner rateably what is due from 
 the firm to him in respect of capital : 
 
 4. The ultimate residue, if any, shall be divided among 
 the partners in the proportion in which profits are divisible. 
 
 PAET IV. 
 Repeal. 
 65. Upon and from the commencement of this Act — Repeal of 
 
 (1.) The whole of an Act of the session of the twenty- 28 & 29 Vict, 
 ■eighth and twenty-ninth years of her Majesty, chapter eighty- I'g &'2o Vict. 
 six, intituled " An Act to amend the law of Partnership ; " ^- 97, o. 4. 
 
 (2.) Section four of the Mercantile Law Amendment Act, 
 1856, shall be repealed in so far as the said enactments re- 
 spectively are applicable to England and Ireland, but without 
 prejudice to any agreement made or any right acquired or 
 liability incurred before the commencement of this Act. 
 
 The limited partnership clauses of the Bill of 1880 (not 
 
 proceeded with by the Select Committee in 1882) were as 
 
 follows : — 
 
 PAUT IV. 
 
 0/ Limited Partnerships.'^ 
 
 64. — (1.) A limited partnership is a firm containing one or Definition > 
 
 more limited partners as hereinafter defined. limited 
 
 ■■^ partaersmp., 
 
 ' This, of ootiTse, ought to be " any sums," or "the sums, if any." 
 2 Compare Code de Commerce, Book 1, Title 3 ; Allgem. Deutsches 
 
182 
 
 Constitution 
 and registra- 
 tion. 
 
 Limited part- 
 nership not 
 properly 
 registered to 
 be general. 
 
 Limited part- 
 ner not en- 
 titled to take 
 part in the 
 business. 
 
 APPENDIX. 
 
 (2.) A limited partner is a partner whose liabHity for the- 
 debts and obligations of the firm is Umited to a certain amount 
 which he has contributed or undertaken to contribute to the 
 partnership property. _ . 
 
 (3.) From and after the commencement of this Act limited 
 partnerships may be formed in the manner and subject to the 
 conditions by this Act provided and declared. 
 
 65. A limited partnership must contain one or more general 
 partners, and must be registered under this Act. Its firm- 
 name must not contain the name of any limited partner. 
 
 66. If a partnership is not registered under this Act every 
 partner therein shall be deemed to be a general partner. 
 
 67. A limited partner shall have no right to take part in 
 the management of the partnership business except as an 
 agent or servant of the firm under an express authority from 
 the general partner or partners ; and he shall have no autho- 
 rity to bind the firm save by acts done in the course of such 
 agency or service as aforesaid. 
 
 Limited part- 
 ner not en- 
 titled to vote 
 in ordinary 
 partnership 
 affairs. 
 
 68. A limited partner shall not be entitled to a voice or 
 vote in the decision of matters relating to the ordinary course 
 of the partnership business ; but no change in the nature or 
 principal place of the business or in the firm-name may be 
 made without his consent. 
 
 Introduction 
 of new 
 partners. 
 
 Limited part- 
 ner may deal 
 ■withfirm, &c. 
 with consent 
 of general 
 partners. 
 
 69. The consent of the limited partner or partners, or a 
 majority of them if more than one, shall be needful for the 
 introduction into the firm of any new general partner, but not 
 of any new limited partner. 
 
 70. The consent of the general partner or partners only 
 shall be required to exempt a limited partner from liability 
 
 Handelsgesetzbuoh, Book 1, Title 2, " Von der Kommanditgesellschaft ; " 
 and Title 26 of the Swiss Federal Code of Obligations. American statutes, 
 on the subject may be seon in Troubat's work on Limited Partnership. 
 (The Law of Commandatnry and Limited Partnership in the United 
 States. By Francis J. Troubat. Philadelphia, 1863.) 
 
PABTNEESEIPS BILL (1883). 183 
 
 to account to the firm for any benefit derived by him from a 
 transaction concerning the partnership. 
 
 71. A limited partner, unless employed as an agent or Limited part- 
 servant of the firm or restrained by express agreement with "^f ^^-^hthe 
 the general partner or partners, shall not be bound to abstain firm, 
 from exercising upon his own account any business competing 
 or interfering with the business of the firm. 
 
 72. — (1.) Every limited partnership must be entered into Duration 
 
 for a fixed term, and may not be dissolved by agreement of °^ limited 
 
 -, L , . . „ , 1 nil partnersmp. 
 
 the partners before the expiration of that term unless all the 
 
 partnership debts are paid, or unless all the unpaid creditors 
 
 of the firm consent to the dissolution. 
 
 (2.) The dissolution of a limited partnership contrary to 
 
 this section shall render the limited partners liable as general 
 
 partners for all' existing debts of the firm. 
 
 73. The death of a limited partner, or the alienation of his Death, bank- 
 interest in the partnership by the operation of law, shall not ^ij^ted" ' 
 dissolve the partnership as between the surviving or continuing partner not to 
 partners. &Z!^^^^^ 
 
 74. The general partner or partners only of a Hmited General part- 
 partnership shall be liable to be made bankrupt in respect of ?}^™ °^y 
 the dealings or liabilities of such partnership. banfa-uptoy 
 
 The term "general partners" for the purposes of this *?^ ^^'t'l^'^" 
 section includes a limited partner who has become liable as a 
 general partner under any provision of this Act. 
 
 75. When and so soon as a limited partnership has been Contributions 
 duly registered, and after the expiration of the time, if any, partners 
 upon the expiration of which the contribution of any limited 
 
 partner or any part thereof is payable, his contribution or such 
 part thereof as aforesaid, or such part thereof respectively as 
 for the time being remains unpaid, shall become and be a 
 debt to the firm, and any limited partner making default in 
 payment thereof respectively at the proper time may be sued 
 therefor in the name of the firm by the general partner or 
 partners. 
 
184 APPENDIX. 
 
 Limited part- 76. A Umited partner shall not during the continuance of 
 ner's share ^j^g partnership draw out or receive back any part of his 
 out to him " contribution under the name of interest, profits, or otherwise 
 during term. howSOever. 
 
 Limited part- 77. If at any time when the partnership capital is dimi- 
 
 rece?ve profits wished below the amount contributed by the limited partner 
 
 or interest or partners, any limited partner receives interest or profits on 
 
 d^Snished.^^ his share, he shall be liable as a general partner for aU 
 
 partnership debts contracted in the time during which the 
 
 partnership capital has been so diminished as aforesaid : 
 
 Provided that nothing in this section shall bind a limited 
 
 partner to repay any interest or share of profits received by 
 
 him on the footing of an annual or other regular account 
 
 made and acted upon in good faith and with reasonable belief 
 
 in its accuracy. 
 
 General pro- 78. — (1.) Every limited partner shall be liable for the 
 toapplywhere "^^^^^ and, obligations of the firm in like manner as a general 
 not excluded partner, except so far as his liabilitj' is limited or varied by 
 
 hy this part, this Act. 
 
 (2.) The rights and duties of the members of a limited 
 partnership towards one another shall be determined by the 
 Xjrovisions of Part Two of this Act, and the manner and con- 
 sequences of the dissolution of a limited partnership by the 
 provisions of Part Three of this Act, so far as the nature of 
 the case admits, and the said provisions are not as regards 
 limited partners excluded or varied by this Act. 
 
 ^Xulara^f ^^' ^^S'^^'^^^^^^T^ «* ^ limited partnership under this Act 
 registration. ^^^^ t® effected by sending by post or delivering to the 
 
 registrar a statement in writing containing the following 
 
 particulars : — 
 
 (a.) The firm name. 
 
 (J.) The nature of the business. 
 
 (c.) The place or places of the business. 
 
 {d.) The fun name, usual residence, and other occupation, 
 
 if any, of each partner. 
 (e.) The term for which the partnership is entered into. 
 
PARTNERSHIPS BILL (1883). 185 
 
 ■(/.) A statement that the partnership is limited and the 
 
 description of every limited partner as such. 
 {g.) The sum contributed or to be contributed by each 
 limited partner, and whether paid or to be paid in 
 cash, or how otherwise. 
 (A.) The amount already paid up in respect of such contri- 
 bution, and the date or dates at which the residue, 
 if any, is payable. 
 The statement shall be signed by each partner in the 
 3)resence of a witness. 
 
 The registration shall be subject to the same conditions 
 «,s to payment of fees and "otherwise as if the partnership 
 were a company under the Companies Acts not having a 
 ■capital divided into shares. 
 
 80. — (1.) A limited partnership renewed or continued by Re-registra- 
 
 agreement of the partners after the expiration of the regis- ^'^°\°^ limited. 
 
 '^ '^ ^ ^ partnership 
 
 tered term shall be registered as if it were a new firm. on renewal. 
 
 (2.) Per the purpose of registration any capital of a limited 
 partner remaining in the business shall be deemed to be con- 
 tributed by him to the new firm, and may be reckoned as or 
 towards his contribution. 
 
 81. If a change occurs in the constitution of a limited Eegistration 
 partnership, the members of the firm as re-constituted shall, ? ^^"S^^ 
 within one month, notify the change to the registrar by a 
 statement sent by post or delivered to him. 
 
 82. If the firm-name of a limited partnership is changed it Re-registra- 
 shall be registered as if it were a new firm, and the statement *1?2°° ''"■^S^ 
 sent or delivered to the registrar shall mention the former 
 
 name of the firm as being abandoned by it, as well as the 
 particulars required for a new registration. 
 
 83. For the purpose of making the statements required by Forms, 
 this Act, the forms in the second Schedule to this Act' or forms 
 
 to the like eilect may be used, and i£ used shall be sufficient. 
 
 1 The first Schedule, as the Bill then stood, was a description of 
 "traders" copied from the Bankruptcy Act of 1869. See note on 
 j>. 169 above. 
 
186 APPENDIX. 
 
 SECOND SCHEDULE. 
 
 FoEMS OF Statement. 
 A. On Registration of Limited Partnership. 
 
 The firm-name is 
 
 The business of the firm is 
 
 It is intended to carry on the business at 
 
 The term of the partnership is years from the 
 
 day of 18 . The partnership is limited. The limited 
 
 partners are the undersigned A. B. and C. D. 
 
 The particulars of the contributions of the limited partners 
 are as f oUows : 
 
 Names of Amount of con- Amount When residue 
 
 limited partners, tribution and paid up. payable, 
 whether payable 
 in cash or how 
 otherwise. 
 
 We the undersigned desire to constitute a limited partner- 
 ship in accordance with the above particulars : 
 
 Names, Addresses, and Descriptions of Subscribers. 
 
 1. John Jones, of &e., merchant. 
 
 2. John Smith, of &c., carpenter. 
 
 3. Thomas Green, of &c., grocer. 
 
 Dated the day of 18 . 
 
 Witness to the above signatures, 
 
 Samuel Weller, 
 
 10, North Street, Westminster. 
 
PARTNERSHIPS BILL (1883). 
 
 187 
 
 B. Notice of change in constitution of limited partnership. Registered 
 
 We the undersigned [the members of the limited partnership 
 as reconstituted^ hereby give notice that on the day 
 
 of 18, the folio-wing change took place in the con- 
 
 stitution of the limited partnership registered by the name of 
 & Co., that is to say : 
 
 * A. B. retired from the firm. 
 
 * C. D. became a member of the firm. 
 
 firm-name 
 
 &Oo. 
 
 * As tte case 
 may be. 
 
 Description of New Member, j- t As upon an 
 
 original regis- 
 
 Full name. Usual residence. Other occupation, tration. 
 
 description, and 
 additions, if any. 
 (Signed) 
 
 C. Notice of change of registered Firm-name. 
 
 {In addition to Form, A.) 
 
 The persons now registering are the persons who heretofore 
 ■carried on business under the registered firm-name of 
 & Co., which is abandoned as from the date of this notice. 
 
 Registered 
 firm-name 
 
 &Co. 
 
INDEX. 
 
 The figures in thick type refer to the numhers of the Articles in 
 the text. 
 
 Actions 
 
 by and against partners in name of firm, 64, 125 
 by firm, discoyery of partners' names in, 65, 126 
 against firm, service of writ in, 66, 127 
 
 appearance of partners in, 67, 127 
 
 between a partner and a firm since Judicature Act, 23, 12& 
 
 Admissions 
 
 of partners, wben binding on the firm, 30, 49 
 
 Adyhnttjiie 
 joint, 5 
 
 Agency 
 
 of partner for the firm, 16, 36, 37, 82 
 right of partner to contribution independent of, 71 
 principle of, applied to liability of firm for wrongful acts of 
 partners, 57 
 
 Agent 
 
 remuneration of, by share of profits, 4, 11 
 
 Ageeement 
 
 restrictive, between partners, inoperative if not notified, 4& 
 
 Aebithation 
 
 one partner cannot bind firm by submission to, 44 
 
 Assets 
 
 of partnership, final distribution of, 63, 123 
 
 Assignment 
 
 of share of profits, dissolves partnership, 50, 88 
 
 Bank 
 
 number of partners in, may not exceed ten, 14 
 
190 INDEX. 
 
 Bankettptcy 
 
 creditor who has lent money for share of profits postponed in, 
 
 7, 12, 13 
 doctrine of holding out applies to administration in, 28 
 of firm or partner, effect of, on agreement for conversion of 
 
 property, 30, 67 
 of partner dissolves partnership, 48, 86 
 bankrupt partners' estate not liable for subsequent debts of 
 
 firm, 53, 93 
 bankrupt partner has no authority to bind the firm, 55, 9o 
 adjudication and process against firm in, 129 
 Procedure against Partners in : 
 
 consolidation of proceedings imder joint and separate 
 
 petitions, 69, 130 
 petition against one partner by creditor of firm, 70, 130 
 petition may be dismissed as to some respondents only, 
 
 71, 130 
 one trustee to be appointed of estates of partners in same 
 
 firm, 73, 131 
 of one partner, creditor of firm may prove in, for purpose 
 
 of voting, 73, 131 
 dividends of joint and separate properties to be declared 
 
 together, 74, 132 
 actions by trustee of bankrupt partner together with 
 
 solvent partners^ 75, 132 
 Bankruptcy Act of 1883 as to administration of partnership 
 
 estates, 137 : see Joint aot) Separate Estates. 
 eflect of separate discharge of partner in, 82, 159 
 Bills of Exchange Act, 1882.. 39 
 
 Books 
 
 partnership, custody of, 39, 75 
 
 BoERO'wiNCJ Monet 
 
 authority of partners in trading firm, 17, 39, 40 42 
 Bovill's Act, 9, U 
 
 Commandite 
 
 partnership in, 9, 14 
 
 Companies 
 
 distinguished from ordinary partnerships, 4, 41 
 Companies Act, 18G2..41 
 
 partnerships unlawful under, 15 
 
INDEX. 1!)1 
 
 'Competition 
 
 of partner ■with firm, 83 
 
 Conversion 
 
 of real estate being partnership property, 29, 66 
 
 of partnership property into separate property, and vice versa, 
 
 30,67 
 fraudtilent, of partnership property, 78, 79, 142, 146, 150 
 
 COBPOEATION 
 
 assumption of corporate name, whether punishable, 20 
 ■whether corporation may trade in its corporate name where the 
 name infringes a trade mark, 22 
 
 Ckeditor 
 
 receiving share of profits, postponed till claims of other creditors 
 for value satisfied, 7, 12 
 
 Ckeditoes 
 
 notice of dissolution to, 93 
 
 joint and separate, 31, 134, 138, 155 
 
 of partner exceeding his authority, 18, 45 
 
 •CUSTOMEES 
 
 dealing •with old, by vendor of business, 105 
 
 Death 
 
 dissolution of partnership by, 49, 53, 88, 93 
 
 Debts 
 
 partnership, not joint and several, 30 : see Joint AND SepabAte 
 Estates. • 
 
 Deed 
 
 partner cannot bind firm by, ■without express authority, 43 
 
 Dieectors 
 
 of numerous partnerships, limited authority of, 17a, 44 
 
 DiSCOVEET 
 
 of individual partners in action by firm, 65, 126 
 
 Dissolution oi' Paetneeship 
 
 by retirement of partner, 47, 85 
 
 by liankruptoy, &c., 48, 86 
 
 by death, 49, 88 
 
 by assignment of share in partnership at will, 50, 88 
 
192 INDEX. 
 
 DissoLTJTioisr OF Paetneeship — continued. 
 
 by the partnership business becoming imlawful, 51, 89 
 
 by the Court for lunacy, misconduct, &c., of a partner, 52, 89' 
 
 what misconduct is ground for, 91 
 
 rights of creditors against ostensible partners not affected by,. 
 53, 93 
 
 right of partners to notify, 54, 94 
 
 authority of partners after, 55, 95 
 
 application of partnership property upon, 56, 100 
 
 sale of goodwill upon, 57, 104 
 
 use of partnership name after, whether it can be restrained,. 
 58, 108 
 
 premature, apportionment of premium on, 59, 109 
 
 on what principle apportionment to be made, quaere, 112 — 114 
 
 on ground of fraud, effect of, 60, 114 
 
 profits after, right to account of, when capital improperly re- 
 tained in business, 61, 114 
 
 final distribution of assets upon, 63, 123 
 
 Estate 
 
 of deceased partner, nature of its liability, 31 
 
 Estoppel 
 
 liability by " holding out" depends on principle of, 26 
 
 Execution 
 
 on judgment against partners in name of firm, 68, 127 
 against partnership property for partner's separate debt, 86 
 
 Exbcutoes 
 
 of deceased partner, duties of surviving pM'tners who are, 1 18 
 
 Expulsion 
 
 of partner, 40, 76 
 
 FlEJI 
 
 definition of, and use of firm name, 9, 10, 18 
 exclusive right of, to trade name, 11, 18 
 is not a person in law, 23, 128 
 
 actions by and against partners in name of, 23 64 68 125 
 
 129 
 guaranties given for or to, 12, 24 
 liability of partners for debts of, 14, 30 
 assumption of debts by new, 15, 32, 35 
 authority of partners as agents of, 16, 36 seq. 
 
INDEX. 193 
 
 Pnui — continued. 
 
 cases where acts of one partner do not bind, 43 
 
 not bound by attempts of partner to use partnership credit for 
 
 private purposes, 18, 44 — 47 
 effect of notice that acts of partner does not bind the, 19, 48 
 how far bound by admissions of partners, 20, 49 
 liability of, for fraud, &c. of partner in course of partnership 
 
 business, 23, 52 
 liability of, for money or property of third persons misapplied 
 
 by partners, 24, 53 
 grounds of the liability in such cases, 56 
 change in, does not affect rights of creditors without notice, 
 
 53,93 
 not bound by acts of bankrupt partner, 55, 95 
 judgment creditor of, not bound to resort first to partnership 
 
 property, 102 
 Eules of Court as to partners suing and being sued in name 
 
 of, 64 seq., 125 
 judgment against partners in name of, 68, 127 
 not recognized as distinct person by Eules of Court, 128 
 creditors of, their limited right to prove in separate bank- 
 ruptcy of partners, 73, 131 
 creditors of, their exceptional right to prove against separate 
 
 estate in certain cases, 77, 141 
 creditors of, double proof by, against joint and separate estates 
 
 in case of distinct contracts, 81, 157 
 
 Peance 
 
 law of, as to name of firm, 20 
 
 as to administration of partnership estates, 140 
 
 Peatjd 
 
 in conduct of partnership business, liability of firm for, 23, 52 
 defrauded partner's lien when partnership dissolved for, 60, 114 
 conversion of partnership property to partner's separate use by, 
 78, 79, 142, 146, 150, 151 
 
 Gazette, Loitdon 
 
 effect of notice of dissolution in, 93, 94, 95. 
 
 GEEMAfTY 
 
 law of, as to name of firm, 20 
 
 as to administration of partnership estates, 140 
 
 P. o 
 
194 INDEX. 
 
 Goods 
 
 implied auttority of partner to buy in usual course of busi- 
 ness, 42 
 
 Goodwill 
 
 as to seller of, receiving share of profits, 6, 11 
 
 sale of, on dissolution of partnership, 57, 104 
 
 nature and incidents of, 106 
 
 does not " survive," 108 
 
 does not exist in solicitor's business, 108 
 
 "Geoss Eetuens" 
 
 the sharing of, does not necessarily create a partnership, 5 
 
 GtrAKANTT 
 
 continuing, to or for firm, revoked by change in firm unless 
 
 there is contrary intention, 12, 24 
 one partner cannot generally bind firm by, 43 
 
 " Holding Out" 
 
 liability as partner by, 13, 26 
 
 ■what amounts to, 27 
 
 the rule applies to administration in bankruptcy, 28 
 
 ■ • does not bind deceased partner's estate, 28 
 
 • does not apply to wrongs independent of contract, 29 
 
 liability of retired partner by, 28 
 
 Illegality 
 
 of partnership business dissolves the partnership, 51, 89 
 
 Indemnity 
 
 right of partners to, 33, 70 
 
 Indian Contract Act 
 
 effect of notice under, that firm will not be bound by acts of 
 
 partner, 49 
 as to presunied equality of shares, 70 
 on authority of partners after dissolution, 98 
 as to joint and separate debts of partner, 138 
 
 Interest 
 
 allowed on advances properly made by partners, 70, 71 
 allowed at option instead of profits on capital improperly 
 
 retained in business, 61, 114 
 mixed claims for profits and interest not allowed, 121 
 
INDEX. 195 
 
 Joint and Sepabate Estates 
 
 rules for administration of, 76, 13i aeq. 
 
 general rule : the joint estate primarily liable for debts of firm, 
 
 the separate estates for separate debts, 76, 134, 137 
 principle of this doubtful : difference between legal and mer- 
 cantile rule, 138, 139 
 partners must not compete mth creditors, 79, 14-1 
 Exceptional Rights of Proof: 
 
 by creditors of firm against separate estates, 77, 141 
 
 by joint estate against separate estates or estate of minor 
 
 firm, 78, 141, 142 
 by partners against joint estate or separate estates of other 
 
 partners, 79, 144 
 by wife of partner, 144 
 
 principles of the exceptional right in cases of fraudulent 
 conversion, 150 seq, 
 
 "Joint Adtenttire," 5 
 
 Judgment. See Execution. 
 
 Land 
 
 being partnership property, how held, 27, 62, 63 
 when it becomes partnership property, 65, 66 
 treated as personalty as between partners, 29, 66 
 
 Lien 
 
 of partners on partnership propertj', 56, 100 
 to what property it applies, 103 
 
 of defrauded partner on assets when partnership dissolved for 
 fraud, 60, 114 
 
 Limitation, Statute of 
 
 operation of, against claims of deceased partner's representa- 
 tives, 122 
 
 Lunacy 
 
 as ground of dissolution, 52, 89 
 
 lunatic partner himself may sue by committee or next friend 
 for dissolution, 91 
 
 Majoeitt 
 
 power of, to decide differences, 36, 73 
 
 expel a partner, only by express agreement, 40, 76 
 
 o2 
 
196 INDEX. 
 
 Marriage 
 
 of female partner, does not now dissolve partnership, 86 
 
 Married WoMAif 
 
 may prove against joint estate for money lent to husband's 
 firm, 145 
 
 Mercantile Law Amendment Act 
 
 as to changes in firm after date of guaranty, 24 
 
 Money 
 
 received by firm, misapplication of, 34, 53 
 property bought with partnership, 28, 65 
 
 Name 
 
 law as to use of, in business, 18, 19 
 
 of firm, use of, after sale of goodwill, 57, 58, 105, 107, 109 
 Negotiable Instruments 
 
 partner in trading firm may issue, in name of firm, 17, 39, 40 
 
 given in name of firm without authority, when firm not liable 
 on, 45, 46, 47 
 
 Notice 
 
 of partner's want of authority, 19, 48 
 
 to partner, when notice to the firm, 21, 50 
 
 of dissolution, effect of, 53, 93 
 
 ■ duty of partners to concur in, 54, 94 
 
 question of, in cases of fraudulent appropriation of joint estate 
 by one partner, 151, 152 
 
 Notation 
 
 on assumption of partnership debts by new firm, 35 
 cannot be effected by agreement among partners without cre- 
 ditor's assent, 35 
 
 Option 
 
 to purchase outgoing partner's share, 62, 117 
 
 Partners 
 
 persons advancing money in consideration of share of profits 
 &c., not necessarily, 3, 9 : see Profits. ' 
 
 number of, limited in ordinary partnership, 8, 14 
 persons liable as, by " holding out," 13, 26 
 when retired pai-tner may bo so Kable, 28 
 liability of, for debts of firm, 14, 30 
 
INDEX. 197 
 
 Partners — continued, 
 
 liabilities of outgoing and incoming, on change of finn, 15, 
 
 32—35 
 power of, to bind the firm as agents, 16, 36 
 implied authority of, 17, 38 
 
 attempts by, to use credit of firm for private purposes, 18, 44 
 may restrict authority of any partner by notice, 19, 48 
 semble, not by mere agreement known to the creditor, 48 
 admissions by, effect of, 20, 49, 50 
 notice to, when notice to firm, 21, 50 
 liability of, for wrongs committed in course of partnership 
 
 business, 22, 23, 52 
 misapplication of third person's property by, 24, 53 
 test of firm's liability for wrongful acts of, 57 
 improper employment of trust funds by, 25, 58, 59 
 continuance of business by surviving, presumed to be on old 
 
 terms, 43, 78 
 misconduct of, as ground for dissolution, 90, 91 : see Dissolu- 
 tion. 
 authority of, after dissolution, 55, 95, 98 : see DissoLtrTlON. 
 lien of, on partnership property, 56, 100 
 
 its nature and extent, 101 — 103 
 
 right of, to account of profits made after dissolution with 
 
 capital improperly retained, 61, 114 
 purchase of shares of outgoing, under option in articles, 62, 
 
 117 
 claims against continuing, qua executors or trustees, 118 
 surviving, not trustees for deceased partner's share, 122 
 may sue and be sued in name of firm, 64, 125 
 so suing, must disclose names on demand of defendant, 65, 126 
 so sued, service of writ upon, 66, 127 
 appearance of, individually, 67, 127 
 
 judgment against, in name of firm, execution upon, 68, 127 
 separate debts of, execution against partnership property for, 
 
 86 
 proceedings in bankruptcj' against, 69 seq., 130 : see Bank- 
 
 BTJPTCY. 
 
 administration of estates of, 76, 134 seq.: see Joint and 
 ■ Separate Estates. 
 fraudulent conversion of partnership property to their private 
 
 use by, 78, 79, 141, 142, 144—146 
 must not prove in competition with creditors of firm, 79, 144, 
 
 145 
 ■effect of separate discharge of, in bankruptcy, 82, 159 
 
19S INDEX. 
 
 PaeTNEES — continued. 
 
 delations of Partners to one another, 61 seq. 
 
 terms of partnership variable only by consent, 26, 61 
 conversion of partnership into several property or vice versa,. 
 
 30, 67 
 shares of, in partnership property, 31, 68 
 
 presumed equal, 32, 69 
 
 right of, to indemnity, 33, 70 
 
 • to take part in business, 34, 72 
 
 duty of, to attend to business, 35, 73 
 
 power of majority among, to decide difierences, 36, 73 
 
 consent of all necessary for change of nature or place of 
 
 business, 37, 73 
 for introduction of new partner,. 
 
 38, 74 
 right of, to inspect books, 39, 7.3 
 
 none can be expeUed save under express power, 40, 76 
 retirement from partnership, when allowed, 41, 42, 7 1 
 duty of, to act for common advantage, 44, 80 
 
 to account to firm and not make undisclosed 
 
 profits, 45, 81 
 
 ■ not to compete with firm, 46, 82 
 
 Estate of Deceased Partner : 
 
 cannot be made liable on doctrine of "holding out," 28 
 
 duty of, to surviving partners, 81 
 
 not liable for subsequent debts of firm, 53, 93 
 
 when entitled to share of subsequent profits, 61, 62, 114, 
 
 117 
 claims of, against surviving partners subject to Statute of 
 
 Limitation, 122 
 administration of : see Joixt akd Separate Estates. 
 
 Partnership 
 
 definition of, 1, 1 — 3 
 
 distinct from common ownership, 4 
 
 and from sharing gross returns, 5 
 rule in Cox v. Hickman, 7, 12 
 Act to amend Law of, 3 — 7, 9—12 
 number of members limited by Companies Act, 8, 14 
 debts, liability of partners for, 14, 30, 31 
 property, power of partners to dispose of, 17, 38, 39 : see Paet- 
 
 NERSHip Property. 
 improper employment of trust moneys in, 25, 58, 121 
 terms of can only be varied by consent of all the partners, 26, 61 
 
INDEX. 109 
 
 V&B.rwEBSKIS— continued. 
 
 business, riglits and duties of partners in relation to, 32—39, 
 
 44—46,69—75, 80—83 
 business, differences as to matters in, to be decided by majority 
 
 unless otherwise provided, 36, 73 
 business, nature or place of, not to be changed without consent 
 
 of all partners, 37, 73 
 books, custody of, 39, 75 
 retirement of partners from, 41, 42, 77 
 continuance of, after lapse of term, 43, 78 
 how dissolved, 47 sej., 85 : see Dissolution of Paetnersiiip. 
 
 Paetnership Property 
 
 what it is, 27, 28, 62—65 
 
 customary valuation of, binding, 62 
 
 treatment of land which is, 29, 66 
 
 conversion of, into several property of partners, 30, 67, 76, 134 
 
 ■what is share of partners in, 31, 68 
 
 execution against, upon judgment for partner's separate debt, 
 
 86 
 rights of partners as to application of, 56, 100 
 creditors of firm have no specific right against, until taken in 
 
 execution, 103 
 execution against, upon judgment against partners in name of 
 
 firm, 68, 127 
 fraudulent conversion of, to partner's private use, 78, 79, 142, 
 
 146, 150 
 rights of separate creditors holding security upon, 80, 155 
 
 Part-cwnership 
 
 distinguished from partnership, 2, 4 
 
 Patents, Designs and Trade Marks Act, 1883 . . 21 
 
 Premium 
 
 paid on entering partnership, apportionment of, on premature 
 dissolution, 59, 109 
 
 Proeits 
 
 no partnership without division of, 3 
 
 but sharing profits is not conclusive evidence of partnership, 2, 
 
 3—6 
 statutory rule as to persons advancing money in consideration 
 
 of share of, 3, 9 
 this protects only bona fide loans, 9, 12 
 as to agent remunerated by share of, 4, 11 
 widows or children of partners receiving share of, 5, 11 
 
200 INDEX. 
 
 Profits — continued. 
 
 as to seller of goodwill receiving share of, 6, 11 
 creditor receiving share of, postponed to others, 7, 12 
 rule as to sharing of, by partners, 32, 69 
 assignment by partner of share of, its eflect, 74, 75 
 partners must account for, to firm, 45, 81 
 after dissolution, right to account of, 61, 62, 114, 117 
 claim for such account must be distinct and single, 121 
 
 Peoof 
 
 rights of, in administration of partnership estates : see Bank- 
 KTiPTCY ; Joint and Sepaeatk Estates. 
 
 Peopeett 
 
 partnership, conversion of, 30, 67, 76, 135 
 
 Eegistbation 
 
 under Companies Act, 15, 17 
 
 Eepeesentation 
 
 made by partner, effect of, 20, 50 
 
 Eetieement 
 
 of partner from partnership for a term, 41, 77 
 
 at will, 42, 77 
 
 partnership dissolved upon notice by one partner of his, 47, 8» 
 
 Eetuens 
 
 gross, sharing of, 5 
 
 EUIBS OE COTOT 
 
 as to actions in name of firm, 64, 125 
 
 discovery of partners' names in action by firm, 65, 126 
 
 service of writ in action against firm, 66, 127 
 
 appearance of partners, 67, 127 
 
 execution upon judgment against firm, 68, 127 
 
 do not recognize firm as a distinct person, 128 
 
 Sale 
 
 of partnership property by partner, 42 
 
 ScoTLAiro 
 
 law of, as to "joint adventure," 5 
 
 treats the firm as a person, 23 
 
 as to administration of partnership estates, 139 
 
INDEX. 'iOl 
 
 Security 
 
 rights of joint creditor holding separate, or separate creditor 
 holding joint, 80, 155 
 
 Sepaeate Trade 
 
 between a partner and the firm, 78, 79, 142, 146 
 
 Servants 
 
 authority of partner as to hiring and dismissal of, 43 
 
 Shares 
 
 in partnership, presumed equality of, 32, 69 
 
 may be made transferable by express agreement 
 
 between partners, 75 
 
 Specific Performance 
 
 of partnership contract, not generally granted, 5 
 
 SlTB-PAETNERSHIP 
 
 creation and effect of, 75 
 
 SuRYXViNG Partners 
 
 ■ continuance of busiaess by, presumed to be on old terms, 78 
 duty of, to representatives of deceased partner, 61, 62, 114, US 
 are not, as such, trustees, 122 
 
 Switzerland 
 
 law of, as to administration of partnership estates, 140 
 
 Torts. See Wrongs. 
 
 Trade Mark 
 
 relation of, to trade name, 21 
 
 Trade Names 
 
 use of, and exclusive right to, 18 
 
 foreign laws as to, 20 
 
 cannot exist apart from actual business, 'I'i 
 
 Trading Partnerships, 17, 38 — 43, 169 
 
 Trust 
 
 breach of, by partner employing trust funds in partnership 
 
 business, 25, 58 
 
 Trustees 
 
 mixed duties of partners who are, 118 
 surviving partners, as such, are not, 122 
 
^('-' INDEX. 
 
 Unlavful, partnership dissolved on business becoming, 51, 89 
 
 Valuation 
 
 of partnership property, firm bound by accustomed mode even 
 against articles, 62 
 
 WrDOW 
 
 of deceased partner, receiving share of profits, not HaWe for 
 partnership debts, 5, 11 
 
 WnsDiNG-irp 
 
 of business by the Court, 56, 100 : see Goodwill; Joint and 
 Sepabatb Estates. 
 
 Wrongs 
 
 doctrine of " holding out " not applicable to, 29 
 liabiUty of partners for, 2S, 23, 52 
 
 PMNTED BY C. F. EOWOBTD, GKEi.T NEW SIBBET, FETTEE LANE, E.G. 
 
January, 1888. 
 
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 It is superior to Harrison, and previous Editions of Fisher, because it 
 has — 
 
 1. A new and better division into topics and sub- topics. 
 
 2. A more logical arrangement of oases under each topic. 
 
 3. A concise statement of facts, and a clear synopsis of the decision in 
 each case. 
 
 4. A much more complete system of cross-references. 
 
 5. One alphabetical arrangement down to 1884. 
 
 This digest is so full, that it is almost equal to having a complete col- 
 lection of the Bnglish Common Law Seports. 
 Napier's Concise Practice of the Queen's Bench and Chancery 
 Divisions and of the Court of Appeal, with an Appendix of 
 Questions on the Practice, and intended for the use of Students. By 
 T. Bateman Napiee, Esq., Barrister-at-Law. DemySvo. 1884. 10s. 
 Smith's Manual of Common Law. — For Practitioners and Students. 
 Comprising the Fundamental Principles, with useful Practical Rules 
 and Decisions. By Josiah W. Smith, B.C.L., Q.O. Tenth Edition. 
 By J. Tbitsteam, LL.M., Esq., Barrister-at-Law. 12mo. 1887. 14s. 
 "Mr. Trustram seems to have performed his task of editmg -well, and has bronght 
 the work -well down to date." — Tfie Jurist^ June, 1887. 
 
 COMMONS AND INCLOSURES.— Chambers' Digest of the Law 
 relating to Commons and Open Spaces, including Public Parks 
 and Recreation Grounds. By Geoege F. Chambees, Esq., Barrister- 
 at-Law. Imperial 8vo. 1877. 6s. 6<?. 
 COMPANY LAW,— Palmer's Private Companies, their Formation 
 and Advantages ; being a Concise Popular Statement of the itode of 
 Converting a Business into a Private Company, and tiie Benefit of so 
 doing. With Notes on " Single Ship Companies." Sixth Edition. 
 By F. B. PiiiMEE, Esq., Barrister-at-Law. 12mo. 1887. Xet, 2s. 
 Palmer,— Vide "Conveyancing" and "Winding-up." 
 Palmer's Shareholders' and Directors' Legal Companion.— A 
 Manual of every-day Law and Practice for Promoters, Shareholders, 
 Directors, Secretaries, Creditors and Solicitors of Companies under 
 theCompaniesAots, 1862tol886. SixthEdition. With an Appendix 
 mi the Conversion of Business Concerns into Private Companies. By 
 F. B. Palmee, Esq., Barrister-at-Law. 12mo. 1887. Xtt "s 6d 
 Thring.— F«c "Joint Stocks." "" ' 
 
 COMPENSATION.-Cripps' Treatise on the Principles of the 
 Law of Compensation. Second Edition. By C. A. Ceipps Esq 
 Barrister-at-Law. Demy Svo. 1884. ' igj' 
 
 " A complete treatise on the subject in which it professes to deal "—Law Times 
 COMPOSITION DE EDS.-Lawranoe.-r«fo "Bankruptcy " 
 CONTINGENT REMAINDERS,-An Epitome of Fearne on 
 
 ?.t"Ji!% * a!T'?''®''^ °j;.^ Executory Devises. Intended 
 
 for the Use of Students. By W. M. C. Post Svo. 1878. 6s 6d 
 
 *.• All standard Law JVork, are kept in Stock, in law calf and other bindings. 
 
119, CHANCERY LANE, LONDON, "W.C. 
 
 CONTRACTS. — Addison on Contracts. Being a Treatise on the 
 Law of Contracts, Eighth Edition. By Hoeaoe Smith, Esq., 
 Barrister-at-Law, Recorder of Lincoln, Author of "A Treatise on 
 the Law of Negligence," &c. Royal 8vo. 1883. 21. 10s. 
 
 "To the present editor must be rfven all praise ■whicli untiring industry and in- 
 telligent research can conunand. He has presented the profession with the law 
 brought down to the present date clearly and fully stated." — Law Times. 
 
 *_* This edition of Addison will maintain the reputation of the work as a satisfactory 
 guide to the vaat storehouse of decisions on contract law." — Solicitors' Journal. 
 
 Fry, — Vide " Specific Performance." 
 
 Leake on Contracts. — An Elementary Digest of the Law of Con- 
 tracts. By Stephen Mabtin Leake, Barrister-at-Law. Demy 8to. 
 1878. 11. 18s. 
 
 Pollock's Principles of Contract. — Being a Treatise on the General 
 Principles relating to the Validity of Agreements in the Law of 
 England. Fourth Edition. By Fkedeeiok Pollock, Esq., Barrister- 
 at-Law. Demy 8vo. 1885. II. 8s. 
 
 Smith's Law of Contracts.— Eighth Edition. By V. T. Thompson, 
 Esq., Barrister-at-Law. Demy 8vo. 1885. 11. Is. 
 
 " Thebestintroductionto the law of contracts which can be put before the student." 
 — Law Journal^ Jan. 31, 1885. 
 
 CONVEYANCI NG.— Dart.— r»<fe " Vendors and Purchasers." 
 
 Greenwood's Manual of Conveyancing. — A Manual of the 
 Practice of Conveyancing, showing the present Practice relating to 
 the daily routine of Conveyancing in Solicitors' Offices. To which 
 are added Concise Common Forms and Precedents in Conveyancing. 
 Seventh Edition. Edited by Habey Gbeenwood, M.A., Esq., 
 Barrister-at-Law. Demy 8vo. 1882. 16s. 
 
 " "We should like to see it placed by his principal in the hands of every articled clerk. 
 One of the most useful practical works we have ever seen." — Law Students* Journal. 
 
 Humphry's Common Precedents in Conveyancing. — Adapted to 
 the Conveyancing Acts, 1881-82, and the Settled Land Act, 1882, 
 &c., together with the Acts, an Introduction, and Practical Notes. 
 Second Edition. By Htjqh M. Humphet, M.A., Esq., Barrister- 
 at-Law. Demy 8vo. 1882. ' 12s. 6<?. 
 Morris's Patents Conveyancing. — Being a CoUeotipn of Precedents 
 in Conveyancing in relation to Letters Patent for Inventions. 
 Arranged as follows : — Common Forms, Agreements, Assignments, 
 Mortgages, Special Clauses, Licences, Miscellaneous ; Statutes, Rules, 
 &c. With Dissertations and Copious Notes on the Law and Prac- 
 tice. By RoBBET MoEEis, M.A., Barrister-at-Law. Royal 8vo. 
 1887. 1?. 5s. 
 " Contains valuable dissertations, and useful notes on the subject with which it 
 
 deals We think it would be difBcult to suggest a form which is not to be met 
 
 with or capable of being prepared from the book before us. To those whose business 
 
 lies in the direction of letters patent and inventions it will be found of great service 
 
 Mr. Morris' forms seem to us to be well selected, well arranged, and thoroughly prac- 
 , tical."— £aM) Times, August 20, 1887. 
 
 Palmer's Company Precedents. — For use in relation to Companies 
 subject to the Companies Acts, 1862 to 1883. Arranged as 
 follows : — Agreements, Memoranda and Articles of Association, 
 Resolutions, Notices, Certificates, Prospectus, Debentures, Policies, 
 Private Companies, Writs, Petitions, Judgments and Orders, Wind- 
 ing-up, Reconstruction, Amalgamation, Arrangements, Special 
 Acts. With Copious Notes. Fourth Edition. By Feanois Beait- 
 roET Palmes, Esq., Barrister-at-Law. Royal 8vo. {In preparation.) 
 " In company drafting it stands unrivalled." — Law Times. 
 
 *f* All standard Law Worh are kept inStoch, in law ealfandother bindings. 
 
STEVENS AND SONS' LAW PUBLICATIONS. 
 
 CON\/E\ANC\NG— continued. 
 Prideaux's Precedents in Conveyancing— With Dissertations on 
 its Law and Practice. Thirteenth Edition. By Ebh)ebiok Pbi- 
 BEAOT, late Professor of the Law of Eeal and Personal Property to 
 the Inns of Court, and Johu "Whitooidbe, Esqrs., Bamsters-at-Law. 
 2 vols. Eoyal 8to. 1885. 3Z. 10s. 
 
 " The most useful work cut on Conveyancing."— iaw Journal. 
 
 " This work is accurate, concise, clear, and comprehensive m scope, ana we mow oi 
 no treatise upon conveyancing which is so gencraUy useful to the practitioner, —imio 
 
 " The conciseness and scientific precision of these Precedents of the Future axe at 
 once pleasing and startling." — Law Magazine. 
 Turner's Duties of Solicitor to Client as to Partnership Agree- 
 ments, Leases, Settlements, and Wills.— By Edwajid F. 
 TuBNEE, SoUoitor, Lecturer on Real Property and Conveyancing, 
 Author of "The Duties of Solicitor to Client as to Sales, Purchases, 
 and Mortgages of Land." (Published by permission of the Council 
 of the Incorporated Law Society.) Demy 8vo. 1884. 10s. 6d. 
 
 " The work has our full approval, and will, we think, be found a valuable addition 
 to the student's library." — Law Students* Journal. 
 
 CONVICTIONS,— Paley's Law and Practice of Summary Con- 
 victions under tlie Summary Jurisdiction Acts, 1848 and 
 1879; including Proceedings preliminary and subsequent to Con- 
 victions, and the responsibility of convicting Magistrates and their 
 Officers, with Poims. Sixth Edition. By .W. H. Macnajjaba, Esq., 
 Barrister-at-Law. Demy 8vo. 1879. 11. 4s. 
 
 COPYRIGHT.— Slater's Law relating to Copyright and Trade 
 Marks, treated more particularly with Reference to Infringe- 
 ment ; forming a Digest of the more important English and Ameri- 
 can decisions, together with the Practice of the English Courts and 
 Eorms of Informations, Notices, Pleadings, and Injunctions. By John 
 Hebbeet Slatee, Esq., Barrister-at-Law. Demy Svo. 1884. 18s. 
 
 CORONERS. — Jervis on the Office and Duties of Coroners. — 
 With Eorms and Precedents. Fourth Edition. By E. E. Mel- 
 SHEQiEB, Esq., Barrister-at-Law. Post Svo. 1880. 12s. 
 
 COSTS. — Morgan and Wurtzburg's Treatise on the Law of Costs 
 in the Chancery Division of the High Court of Justice. — Being 
 
 the Second Edition of Morgan and Davey's Costs lq Chancery. With 
 an Appendix, containing Eorms and Precedents of Bills of Costs. By 
 the Eight Hon. Geoeqe Osboene Moegan, Q.C, and E. A. Wubtz- 
 BUBO, Esq., Barrister-at-Law. Demy Svo. 1882. 11. 10s. 
 
 " Cannot fail to be of use to solicitors and their Chancery managing clerks." — Law 
 Times. 
 
 Summerhays and Toogood's Precedents of Bills of Costs in 
 the Chancery, Queen's Bench, Probate, Divorce and Ad- 
 miralty Divisions of the High Court of Justice! in Conveyancing.; 
 the Crown Office ; Bankruptcy ; Lunacy ; Arbitration under the 
 Lands Clauses Consolidation Act ; the Mayor's Court, London ; the 
 County Courts ; the Privy Council ; and on Passing Residuary and 
 Succession Accounts ; witli Scales of Allowances ; Enles of Court re- 
 lating to Costs ; Forms of Affidavits of Increase, and of Obieotions 
 to Taxation. Fifth Edition. By Wm. Feank Summebhays, and 
 Thobhton Tooqood, Solicitors. Eoyal 8vo. 1887. U. 8s. 
 
 , " ^ *^? volume before us we have a very complete manual of taxation. The workis 
 beauutully pnnted and airanged, and each item catches the eye instantly."— iaw 
 
 %* All standard law TForhsare hept in Stock, in law calf and other iindings: 
 
119, CHANCERY LAlTE, LONDON, W.C. 9 
 
 COSTS — contimiecl. 
 
 Scott's Costs in the High Court of Justice and other Courts. 
 Fourth Edition. By John Scott, of the Inner Temple, Esq., 
 Barrister-at-La-w. Demy 8vo. 1880. 11. 6s. 
 
 Webster's Parliamentary Costs. — Private Bills, Election Petitione, 
 Appeals, House of Lords. Fourth Edition. By C. Cavanaoh, Esq., 
 Barrister-at-Law. Post 8to. 1881. 20s. 
 
 COUNTY COURTS— Pitt-Lewis' County Court Practice.— A 
 Complete Practice of the County Courts, including Admiralty and 
 Bankruptcy, embodying the Acts, Eules, Forms and Costs, -with 
 Additional Forms and a Full Index. Third Edition. By G. Pitt- 
 Lewis, Esq., one of Her Majesty's Counsel, assisted by H. A. 
 De Coltae, Esq., Barrister-at-Law. In 2 vols. Demy Svo. 
 
 SUMMAET OF CONTENTS. 
 
 Vol. I. History, Constitution, and Jurisdiction (including Prohibition 
 and Mandamus), Practice in all ordinary Actions (including Actions 
 under the BUls of Exchange Acts, in Ejectment, in Remitted Actions, 
 and-iu Replevin), and on Appeals, with Appendices, Table of Cases and 
 Index. 1887. 30s. 
 
 Vol. n. Practice in Admiralty, Probate, Bankruptcy, and under 
 Special Statutes, with Appendices, Tableof Cases and Index. {In the press.) 
 
 " The standard Cotrnty Court Practice."— Solicitors' Journal, Deo. 3, 1887. 
 
 " One of the hest books of practice which is to he found ia our legal literature." — 
 Law Times. 
 
 "Mr. Pitt-Lewis has, in fact, aimed — and we are glad to say successfully— at 
 providing for the County Courts* practitioner what ' Chitty's Axchbold * and 'Darnell's 
 Chancery Practice ' have long been to practitioners in the High Court." — Law Magazine. 
 
 CRIIVIINAU LAW.— Archbold's Pleading and Evidence in Criminal 
 Cases. — ^With the Statutes, Precedents of Indictments, &c., and the 
 Evidence necessary to support them. Twentieth Edition. By 
 WxtLiAM Beuce, Esq., Stipendiary Magistrate for the Borough of 
 Leeds. Royal 12mo. 1886. II. Us. M. 
 
 Mews' Digest of Cases relating to Criminal Law from 1756 to 
 1883, inclusive. — By John Mews, assisted by C. M. Chapman, 
 Haebt H. W. Spaeham, and A. H. Todd, Barristers-at-Law. Royal 
 Svo. 1884. 1?. 1». 
 
 Roscoe's Digest of the Law of Evidence in Criminal Cases. — 
 Tenth Edition. By Hoeace Smith, Esq., Barrister-at-Law, 
 Recorder of Lincoln. Royal 12mo. 1884. II. Us. &d. 
 
 " "We have looked for a considerable number of the recent cases, and have found 
 them all correctly stated." — Solicitors' Journal. 
 
 Russell's Treatise on Crimes and Misdemeanors. — Fifth Edi- 
 tion. By Samubl Peentioe, Esq., one of Her Majesty's Counsel, 
 3 vols. Royal Svo. 1877. 5Z. 15s. 6d. 
 
 " What better Digest of Criminal Law could we possibly hope for than ' BusseU on 
 Crimes ' ?" — Sir James Fitzjames Stephen's Speech on Codijicatien. 
 
 Shirley's Sketch of the Criminal Law,— By W. Shielet Shielet. 
 
 Author of "Leading Cases Made Easy," assisted by C. M. Atecn- 
 
 SON, Esqrs., Barristers-at-Law. Demy Svo. 1880. 7s. 6d. 
 
 " As a primary introduction to Criminal Law, it will be found very acceptable to 
 
 students." — Law Students' Journal. 
 
 Thring. — Vide "Navy." 
 
 DECISIONS OF SIR GEORGE J ESS EL— Peter's Analysis and 
 Digest of the Decisions of Sir George J esse I, late Master of 
 the Rolls ; with Full Notes, References and Comments, and copious 
 Index. By Apsiey Peieb JPetbe, Solicitor, Law Society Prizeman. 
 Demy Svo. 1SS3. 16s. 
 
 *j* All standard Zavi TFor/cs are kept in Stock, in law calf and other bindings. 
 
 B 
 
10 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DIARY.— Lawyer's Companion (The), Diary, and Law Directory 
 for 1888.— For the use of the Legal Profession, Public Compames, 
 ■Justices, Merchants, Estate Agents, Auctioneers, &o., &c. Edited 
 by J. Teusteam, LL.M., of Lincoln's Inn, Barrister-at-Law ; and 
 contains Tables of Costs in Conveyancing, &o. ; Monthly Diary of 
 County, Local Government, and Parish Business ; Oaths in Supreme 
 Court; Summary of Legislation of 1887; Alphabetical Index to the 
 Practical Statutes ; a Copious Table of Stamp Duties ; Legal Time, 
 Interest, Discount, Income, Wages and other Tables ; Probate, 
 Legacy and Succession Duties ; and a variety of matters of practical 
 utility. Published AifNTJAiiT. Eorty-second Issue. 1888. 
 
 (JS'ow ready.) 
 
 A complete List of the English Bar, and London and Country Solici- 
 tors, with date of admission and appointments, and is issued in the 
 following forms, octavo size, strongly bound in cloth : — a. d. 
 
 1 . Two days on a page, plain . . . . . .50 
 
 2. The above, inteeleated for Attendances . . . .70 
 
 3. Two days on a page, ruled, with or without money columns 5 6 
 
 4. The above, with money columns, lkteeleaved for Atten- 
 
 dances 8 
 
 5. Whole page for each day, plain 7 6 
 
 6. The above, inteeibaved for Attendances . . . .96 
 
 7. Whole page for each day, ruled, with or without money 
 
 columns ..........36 
 
 8. The above, inteei.eaved for Attendances . . . . 10 6 
 
 9. Three days on a page, ruled blue Hnes, without money 
 
 columns .......... 5 
 
 The Diary contains memoranda of Legal Business throughout the Year. 
 
 " An excellent ■work." — The Times. 
 
 " Contains all tlie information whicli could be looked for in such a work, and gives it 
 in a most convenient form and very completely." — Solicitors* Journal. 
 
 " The ' LaTvyer's Companion.and Diajy ' is a book tbat ougtit to be in the possession 
 of every lawyer, and of every majl of business." 
 
 "The 'Lawyer's Companion' is, indeed, what it is called, for it combines everything 
 required for reference in the lawyer's office." — Law Timis. 
 
 *' It is a book without which no lawyer's library or office can be complete." — Irish 
 Law Times. 
 
 DICTIONARY,— The Pocket Law Lexicon.— Explaining Technical 
 Words, Phrases and Maxims of the English, Scotch and Roman Law, 
 to which is added a complete List of Law Reports, with their Abbre- 
 viations. Second Edition, Enlarged. By E^ney G. Rawson, Esq., 
 Barrister-at-Law. Fcap. Svo. 1884. 6s. firf. 
 
 *' A wonderful little legal Dictionarj*." — Tndermaur's Law Shidents' Journal. 
 
 " A very handy, complete, and useful little work." — Saturday/ Bevinc. 
 
 *' Will be found exceedingly useful to law students and otiiers." — The Jurist. 
 
 Wharton's Law Lexicon. — Foi-ming an Epitome of the Law of Eng- 
 land, and containing full Explanations of the Technical Terms and 
 Phrases thereof, both Ancient and Modem ; including the various 
 Legal Terms xised in Commercial Business. Together with a Trans- 
 lation of the Latin Law Maxims and selected 'Titles from the Civil, 
 Scotch and Indian Law. Seventh Edition. By J. M. Lelt, Esq., 
 Barrister-at-Law. Super-royal Svo. 1883. 11. 18s, 
 
 " On almost every point both student and practitioner can gather information from 
 this mvaluable book, which ought to be in every lawyer's office."— Ctison's Lnw Notes. 
 " As it now stands the Lexicon contains all it need contain, and to those who value 
 such a work it is made more valuable still."— £aio Times. 
 
 %* AH standard Law Works are kept in Stock, in law calf and other bindings. 
 
119, CHANCERY LANE, LONDON, W.O. 11 
 
 DIGESTS.— Chitty's Index to all the Reported Cases decided in the 
 
 several Courts of Equity iu England, the Privy Council, and the 
 
 House of Lords, -with a selection of Irish Cases, on or relating to the 
 
 Principles, Pleading, and Practice of Equity and Bankruptcy from 
 
 the earliest period. Fourth Edition. WhoUy Revised, Re-classified, 
 
 and trought down to the End of the Tear 1883. By Henby Edwaed 
 
 Heest, Esq., Barrister-at-Law. Volumes I. to V. contain the Titles 
 
 "Abandonment" to " Practice and Pleading." Royal 8vo. 1883-87. 
 
 Vols. I., IL, in. and V. JEaeh, II. Us. 6d. Vol. IV., 2?. 2s. 
 
 (Vol. VL, in the Press.) 
 
 " The practitioner can hardly afford to do without such a weapon as Mr. Hirst 
 
 supplies, because if he does not use it probably his opponent ■will." — Law Journal, 
 
 October 1, 1887. 
 
 " On the whole the work is thoroughly "well done. The laborious care bestowed 
 upon the fourth edition of ' Chitty * deserves all praise." — Law Quarterly Etview, 
 
 " We think that we owe it to Mr. Hirst to say that on each occa^on when a volume 
 of his book comes before us we exert some diligence to try and find an omission in it, 
 and we apply tests which are generally successful with ordinary text-writers, but not 
 so with Mr. Hirst. At present we have not been able to find a flaw in his armour. 
 "We conclude, therefore, that he is an unusually accurate and diligent compiler." — Law 
 Times, January 15, 1887. 
 
 Dale and Lehmann's Digest of Cases, Overruled, Not Followed, 
 
 Disapproved, Approved, Distinguished, Commented on and 
 
 specially considered in the English Courts from the Year 
 
 1 756 to 1 886 inclusive, arranged according to alphabetical order of 
 
 their subjects ; together with Extracts from the Judgments delivered 
 
 thereon, and a complete Index of the Cases, in "which are included 
 
 all Cases reversed from the year 1856. By Chablbs Wm. Mitoaife 
 
 Dat.e, M.A., LL.B., andRuDOLP Chambbes Lehmann, M.A., assisted 
 
 by Chables H. L. Neish, M.A, and Hebbbkt H. Chili), B.A., Bar- 
 
 risters-at-Law. Royal 8vo. 1887. 21. 10s. 
 
 {Forms a Supplement to Chitty's Equity Index and Fisher^ s Common Law Dig.) 
 
 ExTEACT FROM Peeface.] — OuT object in compiling this "Work has been to facilitate 
 
 the study of Case Law, by presenting to the inquirer in a novel form, convenient for 
 
 reference, the history of the various cases that have been adversely discussed or specially 
 
 considered in the English Courts from 1756 up to the present time. 
 
 Exteacts feoh Reviews.] — " One of the best works of reference to be found in 
 any library." — Law Times, Jiily 2, 1887. 
 
 " The work has been carefully executed, and is likely to be of much service to the 
 practitioner." — Solicitors^ Journal, July 16, 1887. 
 
 " So far as we have tested the work, it seems very well done, and the mechanical 
 execution is excellent. As for the utility of such a book as this, it is too obvious to be 
 enlarged upon. One could wish that there had been a ' Dale & Lehmann' some years 
 sooner." — Law Quarterly Meview, July, 1887. 
 
 " The book is divided into two parts, the first consisting of an alphabetical index of 
 the cases contained in the Digest presented in a tabular form, showing at a glaAicehow, 
 where, and by what judges they have been considered. The second portion of the book 
 comprises the Digest itself, and bears marks of the great labour and research bestowed 
 upon it by the compilers. Their plan is to give passages from the judgments in which 
 the cases overruled or otherwise dealt with are considered, the extracts being digested 
 
 and arranged according to their subject-matter This makes a valuable work of 
 
 reference." — Law Journal, June 4, 1887. 
 
 Fisher's Digest of the Reported Decisions of the Courts of 
 
 Common Law, Bankruptcy, Probate, Admiralty, and Divorce, 
 
 togetherwith a Selection from those of the Court of Chancery 
 
 and Irish Courts froml756 to 1883inclusiTe. Pounded on Fisher's 
 
 Digest. By John Mewb, assisted by C. M. Chapmait, Haket H. W. 
 
 Spaehak, and A. H. Tode, Barristers-at-Law. 7 vols. Royal 8vo. 
 
 1884. 121. 12s. 
 
 %* Annual Supplements (in continuation of Fisher's Digest and Chitty's 
 
 Equity Index) for 1884, 12s. 6d. ; 1885, 15s. ; 1886, 15s. 
 
 " To the common lawyer it is, in our opinion, the most useful work he can possess." 
 
 — Law Times, 
 
 *„* All standard Law Works are kept in Stock, in law calf and other bindings, 
 
 b2 
 
12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 D I G E STS — continued. 
 
 Notanda Digest in Law, Equity, Banl<ruptcy, Admiralty, Divorce, 
 and Probate Cases,— By H. Tudoe Boddam and Haebt Geeen- 
 wooD and E. W. D. Manson, Esqrs., Barristers-at-Law. 
 
 Third Series, 1873 to 1876 inclusive, half-bound. Net, U. lis. 6d. 
 
 Ditto, Fourth and Fifth Series, for the years 1877, 1878, 1879, 1880, 
 1881, 1882, 1883, and 1884, with Index. Sach, net, U. Is. 
 
 Ditto, Sixth Series, for 1885, 1886 and 1887, with Index. By E. W. D. 
 Manbon, Esq., Barrister-at-Law. Each, net, 11. Is. 
 
 Ditto, ditto, for 1888. Plain Copy and Two Indexes, or Adhesive 
 Copy for insertion in Text-Books (without Index). Annual Sub- 
 scription, payable in advance. Net, 21s. 
 *5t* The numbers are issued every alternate month. Each number 
 contains a concise analysis of every case reported in the Law Meports, 
 Law Journal, Weekly Reporter, Law Times, and the Irish Law Reports, 
 up to and including the cases contained in the parts for the current 
 month, with references to Text-books, Statutes, and the Law Re- 
 ports Consolidated Digest, and an alphabetioai, inbex of the sub- 
 jects contained in each numbee. 
 
 DISCOVERY,— Hare's Treatise on the Discovery of Evidence. — 
 Second Edition. By Sheelook Haee, Barrister-at-Law. Post 8vo. 
 1877. 12s. 
 
 Sichel and Chance's Discovery. — The Law relating to Interroga- 
 tories, Production, Inspection of Documents, and Discovery, as well 
 in the Superior as in the Inferior Courts, together with an Appendix 
 of the Acts, Forms and Orders. By Waiter S. Siohei, M.A., and 
 "Wn-LIAM Chance, M.A., Esqrs., Barristers-at-Law. Demy Svo. 
 1883. 12s. 
 
 " Of material assistance to those -who are mucli engaged in judges' chambers or in 
 
 the county courts." — Law Hagazme. 
 
 DISTRESS,— Oldham and Foster on the Law of Distress,— A 
 
 Treatise on the Law of Distress, with an Appendix of Forms, Table 
 
 of Statutes, &c. By Abthue Oldham and A. La Teoee Fostee, 
 
 Esqrs., Barristers-at-Law. Demy 8vo. 1886. 18s. 
 
 " A careful and accurate digest of the Law of Distress, and one which wiU be 
 
 especially useful to country solicitors." — Law Times, February 20, 1SS6. 
 
 DISTRICT REGISTRIES,— Archibald.— Ftffe " Chamber Practice." 
 
 DIVORCE. — Browne's Treatise on the Principles and Practice of 
 
 the Court for Divorce and Matrimonial Causes: With the 
 
 Statutes, Rules, Fees and Forms relating thereto. Fourth Edition. By 
 
 G-eoeqe Browne, Esq., Barrister-at-Law. Demy Svo. 1880. 11. is. 
 
 " The book is a clear, practical, and, so fax as we have been able to test it, accurate 
 
 exposition of divorce law and procedTU"e." — Solicitors* Journal. 
 
 *„* Supplement to above. By L. D. Powi,ES, Esq., Barrister-at-Law. 
 Demy Svo. 1884. 6s. 
 
 DOMICIL— Cuthbertson's Test of Domicil,— The Conflict between 
 the Dicta of Sir John Leaoh and Lords Hatherley, Westbury, and 
 Chelmsford on Domioil of Origin decided by means of Story. By 
 Feanois Cuthbeetson, LL.D., late Fellow of Corpus Christi College, 
 Cambridge. Demy Svo. 1887. 2s. 
 
 Dicey's Le Statut Personnel anglais ou la Loi du Domicile.— 
 Ouvrage traduit et completS d'apres les demiers arrets des Cours 
 de Justice de Londres, et par la comparaison avec le Code Napoleon 
 et los Diversos Legislations du Continent, Par Emile Stocqtjaet 
 Avooat !l la Cour d'Appel de Bruxelles. Tome I Demv Svo' 
 1887. 12;., 
 
 *,* A II standard Law Works are kept in Stock, in law calf and other bindings. 
 
119, CHANCERY LANE, LONDON, W-O. 13 
 
 EASEMENTS,— Goddard's Treatise on the Law of Easements,—^ 
 
 By John Leybcoen Goddaed, Esq., Barrister-at-Law. Third 
 
 Edition. Demy 8vo. 1884. 11. Is. 
 
 " An mdlspensable pEirt of the lawyer's library." — Solicitors* Journal. 
 
 " The book is invaluable : where the cases are silent the author has taken pains to 
 
 ascertain -what the law would be if brought into question." — Law Journal. 
 
 "Nowhere has the subject been treated so exhaustively, and, we may add, so 
 scientifically, as by Mr. Goddard. We recommend it to the most careful study of the 
 law student, as well as to the library of the practitioner." — Law Timas. 
 
 Innes' Digest of the English Law of Easements. Third Edition. 
 By Mr. Jtistioe Innes, lately one of the Judges of Her Majesty's 
 High Cotut of Judicature, Madras. Royal 12mo. 1884. ' 6s. 
 
 ECCLESIASTICAL LAW,— Phiilimore's Ecclesiastical Law of the 
 Church of England, With Supplement. By the Right. Hon. Sir 
 RoBEET PHiLLrMOEB, D.C.L. 2 vols. 8vo. 1873-76. (Published 
 at Zl. "Js. 6rf.) Meduced to net, II. 10*. 
 
 ELECTIONS.— Loader's The Candidate's and Election Agent's 
 Guide; for Parliamentary and Municipal Elections, ■with an Ap- 
 pendix of Forms and Statutes. By John Loadee, Esq., Barrister- 
 at-Law. Demy 12mo. 1885. Is. 6d. 
 " The book is a thoroughly practical one." — Solicitors* Journal. 
 
 Rogers on Elections, — Parliamentary and Municipal, with an 
 
 Appendix of Statutes and Eonns. In two parts. 
 
 Part I. EjEGiSTEATioN, iacluding the Practice in Registration Appeals. 
 
 Eourteenth Edition . By John Coeeie Caetee, of the InnerTemple and 
 
 Midland Circuit,Esq., RecorderofStamford. Royall2mo. 1885. 11. Is. 
 
 Part II. Elections and Petitions. Fifteenth Edition. Incorporating 
 
 all the Decisions of the Election Judges, with Statutes to June, 1886, 
 
 and a new and exhaustive Index. By John Coeeie Caetee, and 
 
 J. S. Sandaes, Esqrs., Barristers-at-Law. Royal 12mo. 1886. 11. Is. 
 
 " An admirable storehouse of information." — Law Journal. 
 
 ** A very satisfactory treatdse on election law .... his chapters on election 
 expenses and illegal practices are well arranged, and tersely expressed. The com- 
 pleteness and general character of the book as regards the old law are too well known 
 to need descriptaon." — Solicitors* Journal. 
 
 ELECTRIC LIGHTING, — Bazalgette and Humphreys. — Fi<f« 
 "Local and Municipal Government." 
 Cunynghame's Treatise on the Law of Electric Lighting, with 
 the Acts of Parliament, and Rules and Orders of the Board of 'Trade, 
 a Model Provisional Order, and a set of Forms, to which is added a 
 Description of the Principal Apparatus used in Electric Lighting, 
 with Illustrations. By Henet Cunynqhame, Barrister-at-Law. 
 Royal 8vo. 1883. ' 12s. 6d. 
 
 EQUITY, and Vide CHANCERY. 
 
 Chitty's \ndex.— Vide "Digests." 
 
 Seton's Forms of Decrees, Judgments, and Orders in the High 
 Court of Justice and Courts of Appeal, having especial reference 
 to the Chancery Division, with Practical Notes. Fourth Edition. 
 By R. H. Leach, Senior Registrar of the Chancery Division ; F. G. 
 A. Williams and the late H. W. Mat ; succeeded by James East- 
 wiOK, Esqrs., Barristers-at-Law. 2 vols, in 3. Royal 8vo. 1877 
 —1879 il. 10s. 
 
 Shearwood's Introduction to the Principles of Equity, By 
 
 Joseph A. Sheaewood, Author of " A Concise Abridgment of Real 
 
 and Personal Property," &o., assisted by Clement Smiles Mooee, of 
 
 the Middle Temple, Eeqrs., Barristers-at-Law. 8vo. 1885. 6s. 
 
 %* All standard Law Works are kept in Stock, in law calf and other Undings. 
 
14 STEVENS Airo SONS' LAW PUBLICATIONS. 
 
 E Q U i TY — continued. 
 
 Smith's Manual of Equity Jurisprudence.— A Manual of Equity 
 
 Jurisprudence for Practitioners and Students, founded on the Works 
 
 of Story, Spence, and other -writers, and on more than a thousand 
 
 subsequent cases, comprising the Fundamental Principles and the 
 
 points of Equity usually occurring in General Practice. By JosiiH 
 
 W. Smith, B.C.L., Q.C. Thirteenth Edition. 12mo. 1880. 12s. 6(f. 
 
 " There is no disguising the truth ; the proper mode to use this book is to learn its 
 
 passes by heart." — Law Maaazine and Beuiew. 
 
 " It will be found as useful to the practitioner as to the student."— 5oZtci(ors Journal. 
 
 Smith's Practical Exposition of the Principles of Equity, iUus- 
 
 trated hy the Leading Decisions thereon. Eor the use of Students 
 
 and Practitioners. By H. Aethtte SmiH, M.A., LL.B., Esq., 
 
 Barrister-at-Law. Demy 8to. 1882. 20s. 
 
 " The book seems to us to be one of great value to students." — Solicitors^ Journal. 
 
 " Thisis a most remarkable book, containing in a reasonable space more information, 
 
 and that better arranged and conveyed, than almost any other law book of recent 
 
 times which has come under our notice." — Saturday Eeview. 
 
 ESTOPPEL,— Everest and Strode's Law of Estoppel. By Lancelot 
 
 PiELEiNQ EvEEBST, and Edmund Stbode, Esqrs., Barristers-at-La-w. 
 
 Demy 8to. 1884. 18s. 
 
 *' The book will be found a useful repository of the case law on the subject." — Law 
 
 Journal, June 28, 1884. 
 
 EXAIVIINATION GUIDES.— Bedford's Digest of the Preliminary 
 Examination Questions in Latin Grammar, Arithmetic, French 
 Grammar, History and Geography, -with the Answers. Second 
 Edition. Demy 8vo. 1882. 18s. 
 
 Bedford's Student's Guide to the Ninth Edition of Stephen's 
 New Commentaries on the Laws of England. — Third Edition. 
 Demy 8vo. 1884. 7s. 6d. 
 
 Bedford's Final Examination Digest: containing a Digest of the 
 Final Examination Questions in matters of Law and Procedure 
 determined by the Chancery, Queen's Bench, Common Pleas, and 
 Exchequer Divisions of the High Court of Justice, and on the Law 
 of Ileal and Personal Property and the Practice of Conveyancing, 
 with the Answers. 8vo. 1879. 16s. 
 
 " Will furnish students with a large armoury of weapons with which to meet the 
 attacks of the examiners of the Incorporated Law Society." — Law Times. 
 
 Haynes' Lectures on Bankruptcy; originally delivered before the 
 members of the Liverpool Law Student's Association. By Joen F. 
 Hatnds, LL.D., Author of the "Student's Leading Cases," &c. 
 Eoyal 12mo. 1884. os. 
 
 Haynes and Nelham's Honours Examination Digest, comprising 
 all the Questions in Conveyancing. Equity, Common Law, Bank- 
 ruptcy, Probate, Divorce, Admii-alty, and Ecclesiastical Law and 
 Practice asked at the SoUoitors' Honours Examinations since their 
 establishment to the present time, with Answers thereto. By John 
 F. Haynes, LL.D., Author of " Chanceiy Pi-actice, " " The Students' 
 Leading Cases," &c., and Thosias A. Nklham, Solicitor (Honours). 
 DemySvo. 1883. IS,. 
 
 " Students going in for honoui's will find tliis one to their advantage."— iaw Times ' 
 Answera are appended which, judging fi-om an examination of several of them 
 appear to be cai'oful and accurate."— SoMctVors' Journal. 
 
 Shearwood's Guide for Candidates for the Professions of 
 
 B&rrister and Solicitor,— Second Edition. By Joseph A. Sheae- 
 
 wooD, Esq., Barristei--at-Law. Demy 8yo. 1887. 6s. 
 
 •»»'« All staiuhnl l,i,v Works are kept in Stock, in law calf and other bindings. 
 
119, CHANCERY LAN E, LONDON, W-C. 15 
 
 EXAMINATION GUIDES— m«i!«««<?. 
 Napier's Modern Digest of the Final Examinations! a Modem 
 Digest of the Law necessary to be known for the Final Examination 
 of the Incorporated Law Society, done into Questions and Answers ; 
 and a G-uide to a Course of Study for that Examination. By T, 
 Bateman Naitee, LL.D., London, of the Inner Temple, Barrister-' 
 at-Law. Demy 8vo. 1887. IBs. 
 
 '* As fai' as we have tested tlLem we have found the questions veiy well framed, 
 and the answers to them clear, concise and accurate, n used in the manner that 
 Dr. Napier recommends that it should he used, that is, together with the text-books, 
 there can be little doubt that it will prove of considerable value to students."— TAa 
 Jurist, March, 1887. 
 
 EXECUTORS. — Maoaskie's Treatise on the Law of Executors 
 and Administrators, and of the Administration of the Estates of 
 Deceased Persons. With an Appendix of Statutes and Forms. By 
 Stttabt CtmNiNOHAM: Maoaskie, of Gray's Inn, Esq., Barrister-at- 
 Law. 8vo. 1881. 10s. &d. 
 
 " Students may read the book with advantage as an introduction to ' Williams,' and 
 
 by practitioners not possessing the larger work it will undoubtedly be found useful."— 
 
 Law Journal, 
 
 Williams' Law of Executors and Administrators.— Eighth Edition 
 By Waltee Vatjohait Williams and Roland VAtiOHAii Williams, 
 Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1879. 3^. 16s. 
 
 EXTRADITION.— Kirchner's L'Extradition,— RecueilRenfermantin 
 Extenso tons les Traites conolus jusqu'au ler Janvier, 1883, entre les 
 Nations civiliaees, et donnant la solution precise des difficultes qui 
 peuvent surgir dans leur application. Aveo une Preface de Me 
 Geoeoes Laohaud, Avocat k la Cour d'Appel de Paris. PubHe sous 
 les auspices de M. C. E. Howabd Vinoeht, Directeur des Affaires 
 CrimineUes de la Police M6tropolitaine de Londres. Par F. J. 
 KiEOHNEE, Attache a la Direction des Affaires Criminelles. In 1 
 vol. (1150 pp.). Royal 8vo. 1883. 21. 2s. 
 
 -FACTORS ACTS.— Boyd and Pearson's Factors Acts (1823 to 
 
 1877). With an Introduction and Explanatory Notes. By Hugh 
 
 Fenwiok BoyD and Aethue Beilbt Peaeson, Barristers-at-Law. 
 
 Royal 12mo. 1884. 6s. 
 
 " This is an admirable little work. The book is tersely and well written, and the 
 
 comments are intelligent." — Law Journal. 
 
 FACTORY ACTS.— Notcutt's Law relating to Factories andWorl<- 
 shops. Second Edition. 12mo. 1879. ^ 9s. 
 
 FARM, LAW OF.— Dixon's Law of the Farm,— A Digest of Cases 
 connected with the Law of the Farm, and including the Agricultural 
 Customs of England and Wales. Fourth Edition. By Heney 
 Peeeins, Esq., Barrister-at-Law. 8vo. 1879. 11. 6s. 
 
 " It is impossible not to be struck with the extraordinary research that must have 
 been Tised in the compilation of such a book as this." — Law Journal. 
 
 %* Supplement to above, containing the Agricultural Holdings (Eng- 
 land) Act, 1883, with explanatory Notes and Forms ; together with 
 the Ground Game Act, 1880. By Axjbeet J. Spbkoee, Esq., Bar- 
 rister-at-Law. Demy 8vo. 1883. 6s. 
 FIXTURES. — Amos and Ferard on the Law of Fixtures and other 
 Property partaking both of a Real and Personal Nature. Third 
 Edition. Revised and adapted to the present state of the Law by 
 C. A. Feeaed and W. Howland Robbbts, Esqrs., Barristers-at-Law. 
 Demy8T0. 1883. 18s. 
 
 " An accurate and well written work." — Saturday Eeview. 
 
 " The editors have accomplished their work satisfactorily." — Solicitors^ Journal. 
 
 ■%* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
16 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 FORMS.— Allen,— r«e "Pleading." 
 Archibald. — Vide " Chamber Practice." 
 Bullen and Leake, — Fi«fe " Pleading." 
 
 Chltty's Forms of Practical Proceedings in the Queen's Bench 
 
 Division of the High Court of Justice: with Notes containing 
 
 the Statutes, Rules and Cases relating thereto. Twelfth Editaon. 
 
 By Thomas "Whles Chiitt, Esq., Barrister-at-Law. Demy 8ro. 
 
 1883. 1'- 1.8*- 
 
 " The forms themselves are brief and dear, and the notes accurate and to the point. 
 
 The present edition brings the book into harmony with the new Eules of Procedure. 
 
 We have tested it in various ways, and have found it wanting iu no respect. —Law 
 
 Joui-nal, 
 
 Daniell's Forms and Precedents of Proceedings in the Chan- 
 cery Division of the High Court of Justice and on Appeal 
 therefrom,— Fourth Edition, with Summaries of the Rules of the 
 Supreme Court, Practical Notes and References to the Sixth Edition 
 of "DanieU'sChanoery Practice." By CiiAELEsBuEirarr, B.A. (Oxon.), 
 a Chief Clerk of the Hon. Mr. Justice Chitty. Royal 8vo. 1885. 2/. 10s. 
 " Mr. Bumey appears to have performed the laborious task before him with great 
 success." — Law Journal. 
 
 " This new edition of the standard work on Chancery Procedure has been brought 
 down to the most recent date." — Law Quarterly Review, July, 1885, 
 
 HIGHWAYS,— Baker's Law of Highways in England and Wales, 
 including Bridges and Locomotives. Comprising a succinct Code of 
 the several Provisions tmder each Head, the Statutes at length in an 
 Appendix; with Notes of Cases, Eorms, and copious Index. By 
 Thomas Baeee, Esq., Barrister-at-Law. Royal 12mo. 1880. 15s. 
 Bazalgette and Humphreys, — Vide "Local and Municipal Govern- 
 ment." 
 Chambers' Law relating to Highways and Bridges, being the 
 Statutes in full and brief Notes of 700 Leading Cases ; together with 
 the Lighting Act, 1833. By Geoeqe E. CHAiiBEBS, Esq., Barrister- 
 at-Law. 1878. 7s. 6d. 
 
 HOUSE TAX,— Ellis' Guide to the House Tax Acts, for the use of 
 
 the Payer of Inhabited House Duty in England, — BtAhthtje 
 
 M.Ellis, LL.B. (Lond.), Solicitor, Author of "A Guide to the 
 
 Income Tax Acts." Royal 12mo. 1885. 6s. 
 
 " "We have found the information accurate, complete and very clearly expressed." — 
 
 Solicitore' Journal. 
 
 HUSBAND AND WIFE,— Lush's Law of Husband and Wife; 
 
 within the Jurisdiction of the Queen's Bench and Chancery Divisions. 
 
 By C. Montague Lush, of Gray's Inn and North Eastern Circuit, 
 
 Esq., Barrister-at-Law. Demy 8vo. 1884. 20s. 
 
 " Mr. Lush has one thing to recommend him most strongly, and that is his accuracy ; 
 
 therefore his book is one which everyone may consult with the assurance that all the 
 
 leading recent authorities are quoted, and that the statements of law are supported by 
 
 actual decisions." — Law Magazine. 
 
 INCOME TAX,— Ellis' Guide to the Income Tax Acts,— For the use 
 
 of the English Income Tax Payer. Second Edition. By Akthue 
 
 M. Ellis, LL.B. (Lond.), Solicitor. Royal 12mo. 1886. 7s. 6d. 
 
 " Contains in a convenient form Uie law bearing upon the Income Tax." — Lata Times. 
 
 " "With Mr. Elhs' book in their hands the ttixpayers are not so completely at the 
 
 mercy of assessors and coUectore as they otherwise might be." 
 
 INLAND REVENUE CASES,— Highmore's Summary Proceed- 
 ings in Inland Revenue Cases in England and Wales,— Second 
 Edition. By Nathaniel Joseph Hiohmoke, Esq., Barrister-at-Law, 
 and of the Solicitors' Department, Inland Revenue. Royal 12mo. 
 1887. 7s. 6d. 
 
 *^* All standard Law Worlcs are kept in StocHc, in laic calf and other bindings. 
 
119, OHAl^CERY LAT STE, LONDON, W.O. 17 
 
 INSURANCE. — Arnould on the Law of Marine Insurance.— Sixth 
 Edition. By David Maolaohlan, Esq., Barrister-at-Law. 2 vols. 
 Eoyal 8to. 1887. SI. 
 
 ** As a test book, 'Arnould' is now all the practitioner can want." — Law Times. 
 
 Lowndes' Practical Treatise on the Law of Marine Insurance.— 
 By EiOHAED Lowndes. Author of "The Law of General Average," 
 &c. Second Edition. Demy 8vo. 1885. 12s. 6<?. 
 
 Lowndes' Insurable Interest and Valuations. — By Kiohaed 
 Lowndes. Demy 8vo. 1884. 5s. 
 
 McArthur on the Contract of Marine Insurance. — By Charles 
 MoAethxte, Average Adjuster. Demy 8vo. 1885. 14s. 
 
 Wood. — F«(?e "Mercantile Law." 
 
 INTERNATIONAL LAW,— Kent's International Law.— Kent's Com- 
 mentary on International Law. Edited by J. T. Aedt, LL.D., 
 Judge of County Courts. Second Edition. Crown 8 vo. 1878. 10s. 6d. 
 Wheaton's Elements of International Law; Second English Edition. 
 Edited with Notes and Appendix of Statutes and Treaties. By 
 A. C. BoTD, Esq., Barrister-at-Law. Author of "The Merchant 
 Shipping Laws." Demy 8vo. 1880. Net, ll.lOs. 
 
 INTERROGATORIES.— Sichel and Chance.— Fi* "Discovery." 
 
 JOINT STOCKS,— Palmer,— Fi(ie" Conveyancing" and "Company 
 Law." 
 Thring's (Sir H,) Joint Stock Companies' Law,— The Law and 
 Practice of Joint Stock and other Companies, including the Com- 
 panies Acts, 1862 to 1880, with Notes, Orders, and Rules in Chancery, 
 a Collection of Precedents of Memoranda and Articles of Association, 
 and all the other Eorms required in Making, Administering, and 
 Winding-up a Company. By Sir Henet Theino, K.C.B., The 
 Parliamentary Counsel. Fourth Edition. By G-. A. B. Fitzqeeadd, 
 Esq;, Barrister-at-Law. Demy 8vo. 1880. 11. 6s. 
 
 " The highest authority on the subject."— TAe Times. 
 
 JUDGES' CHAMBER PRACTICE.-Archibald,— Fti^e "Chamber 
 
 Practice.' ' 
 JUDICATURE ACTS.— Wilson's Supreme Court of Judicature 
 Acts, Rules of Court, and Forms. With other Acts, Orders, Rules, 
 and Regulations relating to the Supreme Court. With Practical Notes. 
 Sixth Edition. By Chaeles Bueket, a Chief Clerk of the Hon. Mr. 
 Justice Chitty, Editor of "Daniell's Chancery Forms;" M. Mote 
 Mackenzie, and C. Abnold White, Esqrs., Barristers-at-Law. Roy. 
 8vo. 1887. (To he issued Annually.) 11. 5s. 
 
 Important Notice. 
 The notes to the Acts and Rules have been thoroughly revised, 
 and, to a great extent, re-written, also re-arranged and sub-divided 
 under appropriate titles. 
 
 Great additions have been made to the notes dealing with the 
 Chancery Division. 
 
 The Index has been considerable enlarged and entirely re-con- 
 structed, and has been arranged alphabetically under each heading. 
 In the Table of Cases cited will be found references to the con- 
 temporary Reports down to October, 1887. 
 "The present edition of 'Wilson's Judicature Acts ' has been greatly improved in 
 many respects, and we know of no other work on practice which can be used with 
 the same advantage by the practising lawyer and by the student alike."— Puwip Court, 
 November 5th, 1887. 
 
 "Very great care has evidently been bestowed on the work of revision, with the 
 result that a thoroughly reliable and most conveniently arranged practice guide has 
 been produced."— iaw Times, Dec. 3, 1887. 
 *' Their notes to the rules are concise, clear, accurate and practical. " — Solicitors* Joum, 
 
 *,* All standard Law Works are Jcept in Stock, in law calf and other bindings. 
 
18 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 JUSTICE OF THE PEACE.— Stone's Practice for Justices of the 
 Peace, Justices' Clerks and Solicitors at Petty and Special Sessions, 
 in Summary matters, and Indictable Offences, with a list of Summary 
 ConvictionSj and matters not Criminal. With Forms. Ninth Edit. 
 ByW.H.M!A0NAitiEA,Esq.,Barri8ter-at-Law. DemySvo. 1882. 11. 5s. 
 
 Wigram's Justices' Note Book, — Containing a short account of the 
 Jurisdiction and Duties of Justices, and an Epitome of Criminal Law. 
 By the late W. Knox Wigeam, Esq., Barrister-at-Law, J.P. Middle- 
 sex and Westminster. Fifth Edition. Eevised and brought down 
 to end of 1887 by W. S. Shielet, Esq., M.P., Barrister-at-Law. 
 Royal 12mo. 1888. 12s. 6d. 
 
 " We have found in it all the information wMeli a Justice can require as to recent 
 legislation."— rAc Times. 
 
 " This is altogether a capital book. Mr. Wigram is a good lawyer and a good jastices* 
 lawyer." — Law Journal. 
 
 " We can thoroughly recommend the volume to magistrates." — Law Times. 
 
 LAND TAX,-;-Bourdin's Land Tax.— An Exposition of the Land Tax. 
 Third Edition. Including the Recent Judicial Decisions, and the 
 Incidental Changes in the Law effected by the Taxes Management 
 Act, with other Additional Matter. Thoroughly revised and cor- 
 rected. By Shiblet Bukbuet, A.K.C, of the Inland Revenue 
 Department, Somerset House, Assistant Registrar of the Land Tax. 
 Royal 12mo. 1885. 6s. 
 
 LANDLORD AND TENANT.— Woodfall's Law of Landlord and 
 
 Tenant. — With a fuU Collection of Precedents and Forms of Proce- 
 dure ; containing also a collection of Leading Propositions. Thirteenth 
 Edit. By J. M.Lelt, Esq., Barrister-at-Law. Roy. 8vo. 1886. H.lSs. 
 " The editor has expended elaborate industry and systematic ability in nmking the 
 work as perfect as possible."— Soiiaiore' Journal. 
 
 LANDS CLAUSES ACTS.— Bazalgette and Humphreys.- 7"i* 
 
 "Local and Mimicipal Government." 
 
 Jepson's Lands Clauses Consolidation Acts; with Decisions, 
 Forms, and Table of Costs. By Ajethue Jepson, Esq., Barrister-at- 
 Law. Demy 8vo. 1880. 18s. 
 
 LAW LIST.— Law List (The).— Comprising the Judges and OfBcers 
 of the different Courts of Justice, Counsel, Special Pleaders, Drafts- 
 men, Conveyancers, Solicitors, Notaries, &c., in England and Wales ; 
 the Circuits, Judges, Treasurers, Registrars, and High Bailiffs of 
 the County Courts ; Metropolitan and Stipendiary Magistrates, 
 Oflacial Receivers under the Bankruptcy Act, Law and Public 
 Officers in England and the Colonies, Foreign Lawyers with their 
 Enghsh Agents, Clerks of the Peace, Town Clerks, Coroners, &e , &c 
 and Commissioners for taking Oaths, Conveyancers Practising in 
 England under Certificates obtained in SeoUaud. So far as relates 
 to Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors 
 and Notaries. Compiled by John SAitiTEi, Puboeij,, of the Inland 
 Revenue Office, Somerset House, Registrar of Stamped Certificates, 
 and of Jomt Stock Companies, and Published by the Authority of the 
 Commissioners of Inland Revenue. ISSr. [Xet cash, 9s.) 10s. 6d. 
 
 LAW QUARTERLY REVIEW.-EditedbyFEEDEEioKPoiiocz, M.A , 
 
 i^^-O., Corpus Pi'ofessor of Jurisprudence in the University of 
 
 Oxford ; Professor of Common Law in the Inns of Court Vols I 
 
 II. and III. Royal Bvo. 1885-87. £ach, 12s'. 
 
 1^ Subscription 10s. per annum, post free. [Foreign postage 'Is. Qd. e'ltra.) 
 
 *,* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
119, CHAKCERY LANE, LONDON, "W-C. 19 
 
 LAW REPORTS. — A very large stock of new and second-hand Eeports. 
 Prices on application. 
 
 LAWYER'S COMPANION.— r«^" Diary." 
 
 LEADING CASES.— Ball's Leading Cases. Vide "Torts." 
 
 Haynes' Student's Leading Cases. Being some of the Principal 
 Decisions of the Courts in Constitutional Law, Common Law, Con- 
 veyancing and Equity, Probate, Divorce, and Criminal Law. With 
 Notes for the use of Students. Second Edition. By John E. 
 Hatnes, LL.D. Demy 8vo. 1884. 16s. 
 
 " 'Will prove of great utility, not only to students, but practitioners. The notes are 
 dear, pointed and concise." — Law Times. 
 
 I' We have always liad mucli pleasure and confidence in advising students to procure 
 this book." — Gibson's Law Notes. 
 
 Shirley's Leading Cases. — A Selection of Leading Cases in the 
 Common Law, with Notes. By "W". Shielet Shielet, M.P., Esq., 
 Barrister-at-Law. Third Edition. Demy 8vo. 1886. 16s. 
 
 " A very popular work with students, and, we think, deservedly so 
 
 If any words of praise of ours can add to its well-deserved reputation, we give the 
 reader carte blanche to supply them on our behalf out of his own thrilling eloquence 
 and vivid imagination, and we will imdertake to ratify them." — The Junst, Jan. 1887. 
 
 " The book is deserving of high praise, and we commend it in all confidence." — 
 Gibson's Law Notes. 
 
 " The selection is very large, though all are distinctly * leading cases,' and the notes 
 are hy no means the least meritorioiis part of the work." — Law Journal. 
 
 " Mr. Shirley writes well and clearly, and evidently understands what he is wilting 
 about." — Law Times. 
 
 LEGACY DUTI ES.—Vide " Taxes on Succession." 
 
 LEXICON.— rit^e "Dictionary." 
 
 LIBEL AND SLANDER.— Odgers on Libel and Slander.— A 
 
 Digest of the Law of Libel and Slander : the Evidence, Procedure 
 
 and Practice, both in Civil and Criminal Cases, and Precedents of 
 
 Pleadings. Second Edition, with a chapter on the Newspaper 
 
 Libel and Registration Act, 18^. By W. Blaxb ODaEES, M.A., 
 
 LL.D., Barrister-at-Law. Eoyal Svo. 1887- II. I2s. 
 
 "The first edition of this hook, which appeared in 1881, has well stood the test of 
 
 time, and has come to he accepted as a full, accurate and satisfactory guide upon 
 
 its subject, and, inasmuch as the author adopted the comparatively new and hold form 
 
 of ' stating the law on each point in the form of an ahstraet proposition, citing the 
 
 decided cases in smaller type merely as filustrationa of that abstract proposition,' he 
 
 may be considered to have achieved a more than ordinary success. 
 
 " Since the appearance of the first edition the statute law has been altered by the 
 Newspaper Act of 1881; the Eules of 1883 have much modified the practice, and the 
 case law has been supplemented by many decisions, of which those bearing on 
 blasphemy, the rights of married women {see, e.g., SeroJca v. Kattehlnirg, 34 "W, E. 
 542), criminal informations (see, e.g., Yates v. Reg.^ 33 "W. E. 482), and the liabihty for 
 libelling the dead (see, e. g.j Reg. v. Lalouchere, 32 W. H. 861) , are the best known. In 
 these and other pointe Mr. Odgers has fully (sometimes perhaps too fiUly) brought 
 his book up to date, referring, for instance, to a case so recent as Spokes v. Spokes, 
 decided only on the 2nd of June. . . Speaking generally the book continues a very 
 good one, indeed, perhaps, one of the best in the hands of the profession upon any 
 subject. We are glad to find that references are stiU supplied to all the- current 
 reports, and that the index and table of cases appear to have had as much labour in 
 proportion spent upon them as the text." — Solicitors' Journal, August 6, 1887. 
 
 * ' We have rarely examined a work which shows so much industry. ... So good is 
 the book, which in its topical arrangement is vastly superior to the general run of law 
 books, that criticism of it is a compliment rather than the reverse."— Z-aiw Journal. 
 
 LIBRARIES AND MUSEUMS.— Chambers' Digest of the Law 
 relating to Public Libraries and Museums and Literary and 
 Scientific Institutions generally. Second Edition, By G. F. 
 'Chambees, Barrister-at-Law. Imperial Svo. 1879. 8s. 6rf. 
 
 %* All standard La/iu Works are kept in Stock, in law calf and other bindings. 
 
20 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 LICENSING.— Leiy and Foulkes' Licensing Acts, 1828, 1869, 
 and 1872— 1874 i containing the Law of the Sale of ^<l^°JS r^ 
 Eetail and the Management of Licensed Houses; withJNotes 
 to the Acts, a Summary of the Law, and an Appendix ot ioms. 
 Third Edition. Including the Statutes and Cases to August, 1SS7, 
 and the Law of the Licensing of Theatres and Metropolitan Music 
 Halls. By J. M. Lbly and W. D. I. Eotokes, Esctrs., Bamsters- 
 at-Law. Royal 12mo. 1887. l"*- "''• 
 
 LIFE ASSURANCE.— Scratchley's Decisions in Life Assurance 
 Law, collated alphabetically according to the point involved, with 
 the Statutes and Chapters on Points of Practice, &c. By -^™^ 
 ScBATCHLEY, Esq., Barrister-at-Law. Demy Svo. 1887. 10s. 6d- 
 
 LOCAL AND IVIUNICIPAL GOVERNMENT.— Bazalgette and 
 Humphreys' Law relating to Local and Municipal Govern- 
 ment. Comprisingthe Statutes relating to Public Health, Municipal 
 Corporations, Highways, Burial, Gaa and Water, Public Loans, Com- 
 pulsory Taking of Lands, Tramways, Electric Lighting, Artizans' 
 Dwellings, &c., Rivers' Pollution, the Clauses Consolidation Acts, and 
 many others, fully annotated with cases up to date, a selection of the 
 Circulars of the Local Government Board, with a Table of upwards 
 of 2,500 Cases, and full Index. ByC.NoEHAN Bazaxgette andGEOEOE 
 HuMPHEEYS, Esqrs., Barristers-at-Law. Sup. royal 8vo. 1SS5. 3^. 3s. 
 "A complete collection of the law relating to local goTemment, intended to enable 
 
 the legal adviser of any local authority to find -within its backs everything which he 
 
 ■will require. , . . Exceedingly complete and careful cross references, and not unfre- 
 
 quently shrewd and useful practical observations." — Solicitors' Journal. 
 *' The book is thoroughly comprehensive of the law on all points of which it 
 
 professes to treat. There is a table of over 2500 cases, each of which has reference to 
 
 all the reports in which it has appeared." — Law Journal. 
 *' We have no hesitation in recommending the work." — Load Government Chronicle. 
 " For an officer or member of a local authority to have before him one volume, 
 
 between the covers of which he knows everything he desires to ascertain can be found, 
 
 is a convenience not to be lightly estimated." — Metropolitan. 
 " The work is one that no local officer should be without ; for nothing short of a 
 
 whole hbrary of statutes, reports, and handbooks could take its place. For all 
 
 practical eiery-day purposes — that is, for assisting town clerks and others in the 
 
 discharge of their ordinary duties — the work which we have under review is all that 
 
 is required." — Municipal Review. 
 
 MAGISTERIAL LAW,— Shirley's Elementary Treatise on Magis- 
 terial Law, and on the Practice of Magistrates' Courts. — By W. 
 Shibley Shisley, M.A., B.C.L., Esq. Roy. 12mo. 1881. 6s. 6d. 
 WIgram. — Vide " Justice of the Peace." 
 
 MARITIME DECISIONS.— Douglas' Maritime Law Decisions.— 
 An Alphabetical Reference Index to Recent and Important Maritime 
 Decisions. Compiled by Robt. R. Douolas. Demy8vo. 1SS8. Is.&d. 
 
 MARRIAGE.— Kelly's French Law of Marriage, and the Conflict 
 of Laws that arises therefrom. By E. Eeixy, M.A., of the New 
 York Bar, Licenoie en Droit de la Eacultede Paris. Roy.8vo. 1885. 6s. 
 
 MARRIAGE SETTLEMENTS.— Banning's Concise Treatise on 
 the Law of Marriage Settlements! with an Appendix of Statutes. 
 By H. T. Banning, Esq., Barrister-at-Law. Demy Svo. 1884. 15s. 
 
 MARRIED WOMEN'S PROPERTY.— Lush's Married Women's 
 Rights and Liabilities in relation to Contracts, Torts, and 
 Trusts. By Montague Ltjsh, Esq., Barrister-at-Law, Author of 
 " The Law of Husband and Wife." Royal 12mo. 1887. 6s. 
 
 Smith's Married Women's Property Acts, 1882 and1884, with 
 an Introduction and Critical and Explanatory Notes, together with the 
 Married Women's Property Acts, 1870 and 1874, &o. 2nd E^it. Re- 
 vised. By H.A.Smith, Esq., Barrister-at-Law. Roy. 12mo. 1884. 6«. 
 
 *,'• All standard Zati; Tforis are fcipt in Stock, in law calf and other bindings. 
 
119, CHANCERY LANE, LONDON, "W.C. 21 
 
 MASTER AND SERVANT.— Macdonell's Law of Master and 
 Servant. Part I. Common Law. Part II. Statute Law. By John 
 Macdonell, M.A., Esq., Barrister-at-La-w. Demy 8vo. 1883. 11. 5s. 
 " A work whicli ■will be of real value to the practitioner." — Law Times. 
 
 MAYOR'S COURT PRACTICE,— Candy's Mayor's Court Prac- 
 tice, — The Jurisdiction, Process, Practice and Mode of Pleading in 
 Ordinary Actions in the Mayor's Court in Loudon. By Geoboe 
 Candy, Esq., Barrister-at-Law. Demy 8vo. 1879. 14s. 
 
 MERCANTILE LAW.— Russell's Treatise on Mercantile Agency, 
 Second Edition. 8to. 1873. Us. 
 
 Smith's Compendium of Mercantile Law.— Tenth Edition. By 
 John Macdonell, Esq., Barrister-at-Law. {In the Press.) 
 
 Tudor's Selection of Leading Cases on Mercantile and Maritime 
 Law. — ^With Notes. By 0. D. Tudoe, Esq., Barrister-at-La-w^ 
 Third Edition. Royal 8vo. 1884. 11. 2s. 
 
 Wilson's Mercantile Handbook of the Liabilities of Merchant, 
 Shipowner, and Underwriter on Shipments by General Ves- 
 sels. — By A. "WiLSON, Solicitor and Notary. Royal 12mo. 1883. 6sj 
 
 Wood's Mercantile Agreements, — The Interpretation of Mercantile 
 Agreements : A Summary of the Decisions as to the Meaning of 
 Words and Provisions in Written Agreements for the Sale of Groods, 
 Charter-Parties, Bills of Lading, and Marine Policies. With an 
 Appendix containing a List of Words and Expressions used in, or 
 in connection with. Mercantile Agreements, and a List of Mercantile 
 Usages. By John Dennistoun Wood, Esq., Barrister-at-Law. 
 Royal 8vo. 1886. 18s. 
 
 METROPOLIS BUILDING ACTS,— Woolrych's Metropolitan 
 Building Acts, together .with such clauses of the Metropolis 
 Management Acts as more particularly relate to the Bmlding Acts, 
 with Notes and Eorms. Third Edition. By W. H. MAONAiiABA, 
 Esq., Barrister-at-Law. 12mo. 1882. 10s. 
 
 MINES, — Rogers' Law relating to Mines, Minerals and Quarries 
 in Great Britain and Ireland, with a Summary of the Laws of 
 Foreign States, &c. Second Edition Enlarged. By His Honor 
 Judge RoQEES. 8vo. 1876. \l. lis. 6d. 
 
 MORTGAGE.— Coote's Treatise on the Law of Mortgage,— Eifth 
 
 Edition. Thoroughly revised. By William Wtllts Maokeson, 
 
 Esq., one of Her Majesty's Counsel, and H. Ajethue Smith, Esq., 
 
 Barrister-at-Law. 2 vols. Royal 8vo. 1884. , 3/. 
 
 " A complete, terse and practical treatise for the modem lawyer." — Solicitors^ Journal. 
 
 MUNICIPAL CORPORATIONS,— Bazalgette and Humphreys,— 
 Vide " Local and Municipal Government." 
 Lely's Law of Municipal Corporations, — Containing the Municipal 
 Corporation Act, 1882, and the Enactments incorporated therewith, 
 with a Selection of Supplementary Enactments, including therein 
 the Electric Lighting Act, 1882, with Notes. By J. M. Lelt, Esq., 
 Barrister-at-Law. Demy 8vo. 1882. l5s. 
 
 NAVY. — Thring's Criminal Law of the Navy, with an Introductory 
 Chapter on the Early State and Discipline of the Navy, the Rules of 
 Evidence, and an Appendix comprising the Naval Discipline Act 
 and Practical Eorms. Second Edition. By Theodoee Theing, Esq. , 
 Barrister-at-Law, and C. E. Giffoed, Assistant-Paymaster, Royal 
 Navy. 12mo. 1877. 12s. M. 
 
22 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 NEGLIGENCE.— Smith's Treatise on the Law of Negligence. 
 
 Second Edition. By Houaoe Smith, Esq., Barrister-at-Law, Ee- 
 
 oorder of Lincoln, Editor of "Addison on Contracts," "Addison on 
 
 Torts," &c. BemjSvo. 1884. . 12s. 6d. 
 
 " Of great value both to the pra^jtitioner ancl student of law. It ia not merely a 
 
 book of reference, thougrh it is likely to be very valuable in that cajjacity. It is not 
 
 merely a digest of decisions arranged under appropriate heads ; but it really answers 
 
 to its title, and is a treatise on the law of negligence." — Solicitors' Journal. 
 
 NISI PRIUS,— Roscoe's Digest of the Law of Evidence on the 
 
 Trial of Actions at Nisi Pri us.— Fifteenth Edition. By Matjeioe 
 
 Powell, Esq., Barrister-at-Law. 2 vols. Demy 8vo. 1884. 2/. 10». 
 
 " Continues to be a vast and closely packed storehouse of information on practice at 
 
 Nisi Prius." — Law Journal. 
 
 ** "We do not observe any diminution in the care or accura<^ with which the cases 
 have been noted."- — Solicitors' Journal. 
 
 NONCONFORMISTS.— Winslow's Law Relating to Protestant 
 Nonconformists and their Places of Worship; being a Legal 
 Handbook for Nonconformists. By Kkgluald Wusslow, Esq., 
 Barrister-at-Law. Post 8vo. 1886. 6s. 
 
 NOTARY. — Brooke's Treatise on the Office and Practice of a 
 Notary of England. — ^Witb a full collection of Precedents. Fourtb 
 Edition. By LEOira; Levi, Esq., E.S.A., of Lincoln's Inn, Bar- 
 rister-at-Law. 8vo. 1876. 11. 4s. 
 
 OATHS, — Braithwaite's Oaths in the Supreme Courts of Judica- 
 ture."-A Manual for the use of Commissioners to Administer Oaths 
 in the Supreme Courts of Judicature in England and Ireland, &c. 
 Fourth Edition. Ee-issue. By T. W. Bbattewaite, of the 
 Central OfSce. Foolscap 8vo. 1884. Xet, 2s. 6d. 
 
 " The recognised guide of commissioners to administer oaths." — Solicitors' Journal. 
 
 PARISH LAW.— Steer's Parish Law; being a Digest of the Law 
 
 relating to the Civil and Eeolesiasticial Government of Parishes and 
 
 the Relief of the Poor. Fifth Edition. By W. H. MACXAiLiEA, 
 
 Esq., Barrister-at-Law. Demy 8vo. 1887. I85. 
 
 " An exceedingly useful compendium of Parish Law." — Law Times. 
 
 PARTNERSHIP.— Pollock's Digest of the Law of Partnership.- 
 With an Introductory Essay on Codification. Fourtii Edition. By 
 Feedeeiok Pollock, M.A., LL.D., Esq., Barrister-at-Law. Author 
 of "Principles of Contract," "The Law of Torts," &c. Demv Svo 
 1888. ■ los. 
 
 " Of the execution of the work we can speak in terms of the highest praise. The 
 language is simple, concise and clear." — Law Magazine. 
 " Praiseworthy in design, scholarly and complete in execution." — Saturda;/ Beview. 
 T u rn e r. — Vide ' ' Conveyancing. ' ' 
 
 PATENTS.— Aston's (T,) Patents, Designs and Trade Marks Act, 
 1883, with Notes and Index to the Act, Rules and Forms. By 
 Theodoee Aston, Q.C. Eoyal 12mo. 1884. 6s. 
 
 Johnson's Patentees' Manual.— Being a Treatise on the Law and 
 Practice of Letters Patent. Especially intended for the use of 
 Patentees and Inventors. Fifth Edition. By James Johnson, Esq., 
 Barrister-at-Law ; and J. Hexky Johnson, Solicitor and Patent 
 Agent. Demy 8vo. 1884. 10s. ed. 
 
 Johnson's Epitome of the Law and Practice connected with 
 Patents for Inventions; with a Eeprint of the Patents Acts of 
 1883, 1885, and 1886, and Eules, and a Summary of the Patent 
 Laws of Foreign Countries and British Colonies. By James John- 
 eon, Esq., Barrister-at-Law, and J. Heney Johnson, SoUoitor and 
 Patent Agent. Post Svo. 1887. Ket, 2s. 6d. 
 
 *»•' All standard Law Works are hept in Stock, in kw calf and other bindings. 
 
119, CHANCERY LANE, LONDON, W.C. 23 
 
 PATENTS — contimwd. 
 
 Morris's Patents Conveyancing. — Being a Colleotion of Precedents 
 
 in Conveyancing in relation to Letters Patent for Inventions. 
 
 Arranged as follows : — Common Forms, Agreements, Assignments, 
 
 Mortgages, Special Clauses, Licences, Miscellaneous ; Statutes, Rules, 
 
 &c. With Dissertations and Copious Notes on the Law and Practice. 
 
 ByE,OBEBTMoEBis,Esq.,Barrister-at-La-w. Royal 8vo. 1887. U. 5s. 
 
 " Mr. Morris' forms seem to us to be well selected, well arranged, and thoroughly 
 
 practiciil." — Law Times, August 20th, 1887. 
 
 IVlunro's Patents, Designs and Trade IVl arks Act, 1883, with the 
 Rules and Instructions, together with Pleadings, Orders and Prece- 
 dents. By J. E. Ceawpoed Muneo, Esq., Barrister-at-Law. 
 Royal 12mo. 1884. 10s. &d. 
 
 Thompson's Handbook of Patent Law of all Countries, — By 
 Wm. p. Thompson, Head of the International Patent Office, Liver- 
 pool. Sixth Edition. 12mo. 1884. Net, 2s. U. 
 
 PAWN. — Turner's Contract of Pawn, as it exists at Common Law, 
 and as modified by the Eaotors' Acts, the Pawnbrokers' Acts, and 
 other Statutes. By Ebanois Tuenee, Esq., Barrister-at-Law. 
 Second Edition. 8vo. 1883. 12s. 
 
 Turner's Pawnbrokers' Act, 1872. — With Explanatory Notes. By 
 F. Titenee, Esq. Third Edition. 1883. Net, 2s. Gd. 
 
 PERPETUITIES. — Marsden's Rule against Perpetuities. — A 
 Treatise on Remoteness in Limitation ; with a chapter on Accumu- 
 lation and the Thelluson Act. By Reginald Gr. Maeseen, Esq., 
 Barrister-at Law. Demy 8vo. 1883. 16s. 
 
 PERSONAL PROPERTY,— Shearwood's Concise Abridgment of 
 
 the Law of Personal Property ; showing analytically its Branches 
 
 and the Titles by which it is held. By J. A. Sheaewood, Esq., 
 
 Barrister-at-Law. 1882. 5s. Qd. 
 
 " "Will be acceptable to many students, as giving them, in fact, a ready-made note 
 
 book." — Indermaur's Law Students^ Journal, 
 
 Smith.— ri<fe " Real Property." 
 
 PLEADING. — Allen's Forms of Indorsements of Writs of Sum- 
 mons, Pleadings, and other Proceedings in the Queen's 
 Bench Division prior to Trial, pursuant to the Rules of the 
 Supreme Court, 1883; with Introduction, showing the principal 
 changes introduced by these Rules, and a Supplement of Rules and 
 Forms of Pleadings applicable to the other Divisions. By Geoeqb 
 Baitoh Allen, Esq., Special Pleader, and Wileeed B. Allen, 
 Esq., Barrister-at-Law. Royal 12mo. 1883. IBs. 
 
 " A most excellent handbook and guide . . . ■will be very useful to filost legal 
 
 practitioners." — Solicitors^ Journal, 
 
 Bullen and Leake's Precedents of Pleadings, with Notes and 
 Rules relating to Pleading. Fourth Edition. By Thomas J. 
 Bullen, Esq., Special Pleader, and Oteil Doed, Esq., Barrister-at- 
 Law. Parti. Royal 12mo. 1882. {Part II, in the press,) II, is, 
 
 POISONS. — Reports of Trials for Murder by Poisoning! by 
 Prussic Acid, Strychnia, Antimony, Arsenic and Aconitinej 
 including the trials of Tawell, W. Palmer, Dove, Madeline Smith, 
 Dr. Pritchard, Smethurst,' and Dr. Lamson. With Chemical 
 Introductions and Notes on the Poisons used. By G. Latham 
 BsowNB, Esq., Barrister-at-Law, and C. G. Stewaet, Senior Assis- 
 tant in the Laboratory of St. Thomas's Hospital, &c. Demy 8vo. 
 1883. 12s. M. 
 
 *^* All standard Law Works are Ttept in Stock, in law calf and other bindings. 
 
24 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 POWERS.— Farwell on Powers.— A Concise Treatise on Powers By 
 Geoeob Fahwell, B.A., of Lincoln's Inn, Esq., Barrister-at-La-w. 
 8vo. 1874. !'• IM- 
 
 PRINTERS, PUBLISHERS, &c,— Powell's Laws specially affect- 
 ing Printers, Publishers and Newspaper Proprietors. By 
 Aethue Powell, Esq., Barrister-at-Law. DemySvo. 1887. Is.&d. 
 PROBATE.— Browne's Probate Practice; A Treatise on the Prin- 
 ciples and Practice of the Court of Probate, in Contentious and Non- 
 Contentious Business. Revised, enlarged, and adapted to the 
 Practice of the High Court of Justice in R:ohate business. By L. D. 
 PowLES, Barrister-at-Law. Including Practical Directions to 
 Solicitors for Proceedings in the Registry. By T. W. H. Oaxioet, 
 of the Principal Registry, Somerset House. 8vo. 1881. II. Ws. 
 *t* Supplement to above. By L. D. Powles, Esq., Barrister-at- 
 Law. Demy 8vo. 1884. 6«. 
 
 PUBLIC HEALTH.— Bazalgette and Humphreys.— Fi^fe "Local 
 and Municipal Government." 
 Chambers' Digest of the Law relating to Public Health and 
 Local Government. — With Notes of 1,260 leading Cases. The 
 Statutes in full. A Table of Offences and Punishments, and a 
 Copious Index. Eighth Edition (with Supplement corrected to 
 May 21, 1887). Imperial 8 vo. 1881. _ 16s. 
 
 Or, the above with the Law relating to Highways and Bridges. II. 
 PUBLIC MEETINGS.— Chambers' Handbook for Public Meet- 
 ings, including Hints as to the Summoning and Management of 
 them. Second Edition. By Geoeqe E. Chambees, Esq., Barrister- 
 at-Law. Demy 8vo. 1886. Xet, 2s. &d. 
 
 QUARTER SESSIONS.— Archbold.— Fi(fe "Criminal Law." 
 
 Leeming& Cross's General and Quarter Sessions of the Peace, 
 — Their Jurisdiction and Practice in other than Criminal matters, 
 Second Edition. By Hoeatio Llotd, Esq., Judge of County Courts, 
 and H. F. Thtjelow, Esq., Barrister-at-Law. 8vo. 1876. 11. Is. 
 Pritchard's Quarter Sessions. — The Jurisdiction, Practice and Pro- 
 cedure of the Quarter Sessions in Criminal, Civil, and Appellate 
 Matters. By Thos. Sieeell Pettchaed, Esq., Barrister-at-Law. 
 8vo. 1875. (Published at 21. 2s.) Reduced to net 12s, 
 
 RAILWAYS.— Browne and Theobald's Law of Railway Com 
 panics, — Being a Collection of the Acts and Orders relating to 
 Railway Companies, with Notes of aJl the Cases decided thereon, 
 and Appendix of Bye -Laws and Standing Orders of the House of 
 Commons. Second Edition. By J. H. EAiFOTJE Beowne, Esq., one 
 of Her Majesty's Counsel, and H. S. Theobaud, Esq., Barrister-at- 
 Law. Royal 8vo. 1888. [Nmrhj ready.) 
 " Contains in a very concise form the whole law of railways." — The Times. 
 " The learned authors seem to have presented the profession and the puhlic with the 
 most ample information to he found whether they want to know how to start a rail- 
 way, how to frame its bye-laws, how to work it, how to attack it for injxuy to person 
 or property, or how to wind it up." — Law Times. 
 
 RATES AND RATING.— Castle's Practical Treatise on the Law 
 of Rating. — Second Edition. By Eewaed James Castlb, Esq., 
 Barrister-at-Law. Demy 8vo. 1SS6. 25s. 
 
 " A correct, exhaustive, dear and concise view of the law."— iaiu Times. 
 Chambers' Law relating to Rates and Rating; with especial 
 reference to the Powers and Duties of Rate-levying Local Authori- 
 ties, and their OfBoers. Being the Statutes in fuU and brief Notes 
 of 560 Cases. By G. F. Chambees, Esq., Barristor-at-Law. Imp. 
 8vo. 1878. Reduced to lOs. 
 
 •/ All standard Law Works ar$ kept in Stock, in law calf and other bindings. 
 
119, CHANCERY LANE, LONDON, W.C. 25 
 
 REAL ESTATE.— Foster's Law of Joint Ownership and Partition 
 of Real Estate. — By Edwabd John Fosiee, M.A., late of Lincoln's 
 Inn, Barrister-at-Law. "Svo. 1878. 10s. 6d. 
 
 REAL PROPERTY.— Greenwood's Real Property Statutes) com- 
 prising those passed during the years 1874' — 18Si, inclusive, 
 consolidated with the earUer statutes thereby amended. With 
 copious notes. Second Edition. By Haeey Geeenwood, M.A., 
 LL.M., assisted by Lees Kno'Wi.eb, M.A., LL.M., Esqrs., Bar- 
 risters-at-Law. Demy 8to. 1884. II. 5s. 
 
 " The second edition of this useful collection of statutes relating to real property-will 
 be heartily welcomed by conveyancers and real property lawyers. In referring to it as 
 a collection of statutes, however, we do not fully describe it, because the method 
 adojjted by the author of grrouping together the provisions of the various Acts, which 
 are in pari maten'id, combmed with ttie fullness and accuracy of the notes, entitles the 
 book to rank high amongst treatises on the law of real property." — Law Journal. 
 
 Leal<e's Elementary Digest of the Law of Property in Land. — 
 Containing : Introduction. Part I. The Sources of the Law. — 
 Part II. Estates in Land. By Stephen Mabtin Ltjatk, Barrister- 
 at-Law. 8to. 1874. \l. Is. 
 Shearwood's Real Property. — ^A Concise Abridgment of the Law of 
 Heal Property and an Introduction to Conveyancing. Designed to 
 facilitate the subject for Students preparing for examination. By 
 Joseph A. Sheaewooi), of Linoola's Inn, Esq., Barrister-at-Law. 
 Thbrd Edition. Demy Svo. 1885. 8». U. 
 " "We heartily recommend the work to student's for any examination on real property 
 and conveyancing, advising them to read it after a perusal of other works and shortly 
 before going m for the examination." — Law Students Journal. 
 
 '* A very useful little work, particularly to students just before their examination." 
 — Gibson^s Law Nates, 
 " A very excellent specimen of a student's manual."— iaw Journal. 
 " One of the most obvious merits of the book is its good arrangement. The author 
 evidently understands ' the art of putting things.* All important points are so 
 piinted as to read£y catch the eye." — Law Times. 
 
 Shelford's Real Property Statutes,— Ninth Edition. By T. H. 
 Caeson, Esq., Barrister-at-Law. (/» the press.) 
 
 Smith's Real and Personal Property. — ^A Compendium of the Law 
 of Real and Personal Property, primarily connected with Con- 
 veyancing. Designed as a second book for Students, and as a 
 digest of the most useful learning for practitioners. By Josiah W. 
 Smith, B.C.L., Q.C. Sixth Edition. (Enlarged, and embodying 
 the alterations made by the recent Statutes.) By the Atjthos and 
 J. Tbustbam, LL.M., of Lincoln's Inn, Barrister-at-Law. 2 vols. 
 Demy Svo. 1SS4. 21. 2s. 
 
 " He (the author) has given to the student a book which he may read over and over 
 again with proiit and pleasure." — Law Times. 
 
 " Will be found of very great service to the practitioner," — Solicitors'' Journal. 
 " The book will be found very handy for reference purposes to practitioners, and 
 very useful to the industrious student as covering a great deal of ground." — Gibson^s 
 Law Notes." 
 
 " A really useful and valuable work on our system of Conveyancing. "We think this 
 edition excellently done." — Law Student's Journal. 
 
 R EG 1 STRAT 1 N .— Rogers,— Fi(fe " Elections." 
 Coltman's Registration Cases.— Vol. I. (1879—1885). Royal Svo. 
 Calf. Net, 21. Ss. 
 
 Fox's Registration Cases,^ — Vol. I., Part I. (1S86). (In continua- 
 tion of Coltman.) Net, is. 
 
 RENTS. — Harrison's Law Relating to Chief Rents and other 
 Rentcharges and Lands as affected thereby, with a chapter on 
 Restrictive Covenants and a selection of Precedents. By William 
 Haeeison, Solicitor. Demy 12mo. 1884. 6«. 
 
 *,* A II standard Law Works are Icept in Stocle, in law calf and other bindings. 
 
26 STEVENS AOT) SONS' LAW PUBLICATIONS. 
 
 ROMAN LAW.— Goodwin's XII. Tables,— By Fbedeeick Goodwin, 
 
 LL.D. London. Eoyal 12mo. 1886. 3«. 6d. 
 
 Greene's Outlines of Roman Law.— Coneietmg chiefly of an 
 
 Analysis and Siunmary of the Institutes. For the use of Students. 
 
 By T. 'Whitcombe Geeene, Barrister-at-law. Fourth Edition. 
 
 Foolscap 8vo. 1884. 7». U. 
 
 Wears' Student's Gaius and Justinian.— The Text of the Institutes 
 
 of Gaius and Justinian, The Twelve Tables, and the CXVIII. and 
 
 CXXVII. Novels, with Introduction and Translation by T. Lambeet 
 
 Meaes, M.A., LL.D. Lond., of the Inner Temple, Barrister-at- 
 
 Law. Poet 8vo. 1882. (Published at 18«.) Seduced to Xet, 9«. 
 
 Wears' Student's Ortolan.— An Analysis of M. Ortolan's Institutes 
 
 of Justinian, including the History and Generalization of Eoman 
 
 Law. By 'T. Lambebt Meaes, M.A., LL.D. Lond. Second 
 
 Edition. {.In. the press.) 
 
 Ruegg's Student's "Auxilium"to the Institutes of Justinian. — 
 
 Being a complete synopsis thereof in the form of Question and 
 
 Answer. By Alfeed Hbnet Ruegg, of the Middle Temple, 
 
 Barrister-at-Law. Post 8vo. 1879. Ss- 
 
 " The student will be greatly assisted in dealing and arranging his knowledge by a 
 
 work of this kind." — Law Jourrial. 
 
 SALES, — Blackburn on Sales. A Treatise on the Effect of the Con- 
 tract of Sale on the Legal Rights of Property and Possession in 
 Goods, Wares, and Merchandise. By Lord Blaokbues. Second 
 Edition. By J. C. Geaham, Esq., Barrister-at-Law. Royal 8vo, 
 1885. 1/. Is. 
 
 " "We have no hesitation in saying that the work has been edited with remarkable 
 
 ability and success, and if we may bazai'd a speculation on the cause, we should eay 
 
 that liie editor has so diligently studied tJtie excellent methods and work of his author 
 
 as to have made himself a highly competent workman in the same kind." — Law 
 
 Quarterly HevieWj April, 1886. 
 
 SALES OF LAND,— Clarke and Humphry's Concise Treatise 
 
 on the Law relating to Sales of Land. By Aubeet St. Jomi 
 
 Cleeke, and Hugh M. Hthiphet, Esqrs., Barristers-at-Law. Royal 
 
 8vo. 1885. II. OS 
 
 " As an accurate, concise, and practical digest of the law on the subject we fh^■n'k it 
 
 desei-ves to rank high." — Solicitors* Journal. 
 
 "The book is written in the condensed style of the notes to 'Setonon Decrees,' 
 and succeeds admirably in reducing the effect of several cases to a proposition, which 
 is briefly formulated and followed by the authorities on whidi it is based."— £ato 
 Journal, 
 
 " The arrangement is extremely good, and the mode of treatment particularly clear ; 
 but the substance is as good as the form. . . . The work will be very useful to nil 
 who are concerned in sales of land, and will be invaluable to young pxuctitionere." — 
 Law Times. 
 
 SETTLED ESTATES STATUTES,— Middletons Settled Estates 
 Statutes, including the Settled Estates Act, 1 877, Settled Land 
 Act, 1882, Improvement of Land Act, 1864, and the Settled 
 Estates Act Orders, 1878, with Introduction, Notes and Forms. 
 Thii-d Edition. With Appendix of Rules and Forms under the 
 Settled Land Act, 1882. By James W. Mtddleton, Esq., Barrister- 
 at-Law. Royal 12mo. 1882. 7s_ 6^_ 
 " Ji form the book is veiy simple and practical, and having a good index it is sure 
 
 to afford material assistance to every practitioner who seeks its aid."— inw Journal 
 " The best manual on the subject of settled estates which has yet appeared." 
 
 SHERIFF LAW.— Churchill's Law of the Office and Duties of the 
 
 Sheriff, with the Writs and Forms relating to the Office. Second 
 
 Edition. By Cameeon Chuechili, Esq., Barrister-at-Law. Demv 
 
 8vo. 1882. II 4^ 
 
 " A very complete treatise."— .SoiiciVors' Journal. 
 
 " Under-sheriffs, and lawyers generaUy, will find this a useful hook."— Law Mag. 
 •/ All standard Law Works are kept in Stock, in law calf and other bindings. 
 
ai9, CHANCERY LANE, LONDON, W-C. 27 
 
 SHIPPING. — Boyd's Merchant Shipping Lawsj being a ConsoUda- 
 tion of all the Merchant Shipping and Passenger Acts from 1854 to 
 1876, InolusiTe ; with Notes of all the leading English and American 
 Cases, and an Appendix. By A. C. Boyd, LL.B., Esq., Barrister- 
 at-Law. 8vo. 187«. 11. is. 
 
 Foard's Treatise on the Law of Merchant Shipping and Freight. 
 — By J. T. PoAED, Barrister-at-Law. Roy. 8vo. 1880. Hlf.clf.U.ls. 
 
 SLAN DER.— Odgers.— Fiefe " Libel and Slander." 
 
 SOLICITORS.— Cordery's Law relating to Solicitors of the 
 
 Supreme Court of Judicature. With an Appendix of Statutes 
 
 and Rules, and Notes on Appointments open to Solicitors, and the 
 
 Right to Admission to the Colonies. Second Edition. By A. Coedeet, 
 
 Esq., Barrister-at-Law. Demy 8vo. 1888. 16*. 
 
 "Mr. Cordery -writes tersely and clearly, and displays in general great industry and 
 
 care in the collectioii o£ cases." — Solicitors* Jownwl. 
 
 Turner. — Vide "Conveyancing" and "Vendors and Purchasers." 
 Whiteway's Hints to Solicitors. — Being a Treatise on the Law re- 
 lating to their Duties as OfScers of the High Court of Justice ; with 
 Notes on the Recent Changes affecting the Profession. By A. R. 
 Whitewat, M.A., of the Equity Bar and Midland Circuit. Royal 
 12mo. 1883. 6s. 
 
 SPECIFIC PERFORMANCE.— Fry's Treatise on the Specific 
 Performance of Contracts. By the Hon. Sir Edwaed Eey, a 
 Lord Justice of Appeal. Second Edition. By the Author and W. 
 Donaldson Rawuns, of Lincoln's Inn, Esq., Barrister-at-Law. 
 Royal 8to. 1881. 11. 16«. 
 
 STAMP DUTY.— Cosset's Practical Guide to Account Stamp 
 Duty, Customs, and Inland Revenue Act, 1881 (44 Vict, c. 12, 
 s. 38). By J. A. Cosset, of the Legacy and Succession Duty 
 OfBoe. Post 8to. 1887. bs. 
 
 STATUTE LAW.— Wilberforce on Statute Law. The Principles 
 which govern the Construction and Operation of Statutes. By E. 
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 STATUTES, and vide " Acts of Parliament." 
 
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 By J. M. Lelt, Esq., Barrister-at-Law. In 6 vols.. Supplement, 
 
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 50 & 51 Vict. 1887. 10s. 6d. 
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28 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 STATUTES—coniinued. 
 
 the addition of commentaTy and decided cases, than an official code woTild be. The 
 interval of twenty years hitherto observed between the editions of this work since its 
 first appearance in 1825 has been convenientiy shortened to fifteen between the last 
 edition and that now before us. It does not take long, in an era when legislation 
 does everything for us and we do nothing for ourselves, for a roll of statutes to 
 accumulate sufficient to make the addenda almost as voluminous as the body of the 
 work. The Acts relating to Bankruptcy, Married "Women's Property, Shipping, the 
 Judicatme, Bills of Sale, Artizans' Dwellings, and Public Worship are only a small 
 sample of the important legislation which the new edition embodies. It is needless to 
 enlarge on the value of ' Cmtty's Statutes ' to both the Bar and to Solicitors, for it is 
 attested by the experience of many years. It only remains to point out that Mr. 
 Lely's work in bringing up the collection to the present time is distinguished by care 
 and judgment. The difficulties of the editor were chiefly those of selection and 
 arrangement. A very shght laxness of rule in including or excluding certain classes 
 of Acts would materially affect the size and compendiousness of the work. Still more 
 important, however, is the way in which the mechanical difficulties of arrangement 
 are met. The Statutes are compiled under sufficiently comprehensive titles, in alphas 
 betieal order. Mr. Lely, moreover, supplies us with three indices — the first, at the 
 head of each title, to the enactments comprised in it ; secondly, an index of Statutes in 
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 into every branch of law governed by the Statutes is made easy both for lawyer and 
 layman." — The Times. 
 
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 to the most important cases which throw light on the subject."— iau* Journal. 
 
 Public General Statutes. Royal 8vo. Issued in parts and in com- 
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 SUMMARY CONVICTIONS.— Paley's Law and Practice of Sum- 
 mary Convictions under the Summary Jurisdiction Acts, 
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 TORTS.— Addison on Torts; being a Treatise on Wrongs and 
 
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 ** An indispensable addition to every lawyer's library." — Law Magazine. 
 
 Ball's Leading Cases on the Law of Torts, with Notes. Edited 
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30 STEVENS AND SONS' LAW P UBLICATIONS. 
 
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 WINDING UP.— Palmer's Winding-up Forms.— A Collection of 580 
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