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A DIGEST 
 
 LAW OF PARTNERSHIP, 
 
 WITH AN APPENDIX OF FORMS. 
 
 BY 
 
 Sib FREDERICK POLLOCK, Bart., 
 
 BARRISTER- AT-LAW, 
 
 M.A., HON. LL.D. EDIN. , DUBLIN, AND HARVARD, 
 
 CORPUS PROFESSOR OF JURISPRUDENCE IN THE UNIVERSITY OF OXFORD, 
 
 CORRESPONDING MEMBER OF THE INSTITUTE OF FRANCE, 
 
 LATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 
 
 SEVENTH EDITION. 
 
 LONDON : 
 
 STEVENS AND SONS, LIMITED, 
 
 119 & 120, CHANCERY LANE, 
 
 fain luMtsljers. 
 
 1900. 
 
^77 3d. 
 
 BRADBURY, AGNEW, & CO. LD., PRINTERS, 
 LONDON AND TONBRDDGE. 
 
PKEFACE. 
 
 The form of this work is no longer a matter of 
 private choice as to the greater part of it, and 
 therefore no longer needs an apologetic introduc- 
 tion. It will suffice to explain how the book 
 became, in its fifth edition, an edition of an Act 
 of Parliament, and could become so while pre- 
 serving most of its original substance. In 1877, 
 having been asked to write a concise work on 
 Partnership, I determined to follow Sir James 
 Stephen's example in his Digest of the Law of 
 Evidence (an example which then stood alone), 
 and to frame the book on the pattern of the 
 Anglo-Indian Codes. It then seemed to me 
 possible that Parliament might be induced to 
 adopt Macaulay's invention of adding authorita- 
 tive illustrations to the enacting text of a code ; 
 I call it Macaulay's, for I have not found in 
 earlier writers, including Bentham, more than 
 slight rudiments of the idea, and its first distinct 
 appearance was certainly in the draft of the 
 Indian Penal Code. But at all events this 
 method of statement enables the private author 
 
 a2 
 
iv PRE FA GE. 
 
 of a Digest in codified form to exhibit in the 
 clearest and shortest way the substance of the 
 authorities on which his text is founded. When 
 such a Digest is used as the groundwork of a 
 Bill, and the Bill finally becomes an Act of 
 Parliament, as happened with Mr. Chalmers' 
 Digest of the Law of Bills of Exchange, and 
 later with the present work, the decisions 
 exhibited by way of illustration are no longer 
 the only part of the work having authority, but 
 they remain authoritative so far as they are con- 
 sistent with the terms of the Act, and a summary 
 view of them will often be convenient, sometimes 
 almost necessary, for the understanding of the 
 law as now declared by the Legislature. Unless 
 the law has been purposely altered, which in a 
 codifying Act is a rare exception, the decisions 
 are still the material from which the rule of law 
 has been generalized. The rule has acquired a 
 fixed and authoritative form, but the principle is 
 the same. It is a minor question, in a country 
 where the law is uniform, and its administration 
 is in the hands of trained lawyers, whether it 
 be desirable for the Legislature to undertake the 
 selection and statement of illustrations to a Code. 
 Perhaps it is a thing best left to private enter- 
 prise ; the rather, in this country, that the con- 
 ditions of our legislative procedure make Parlia- 
 ment about the least fitted of European legislative, 
 bodies for such a task. Meanwhile experience 
 
PEE FACE. v 
 
 has shown the convenience of Macaulay's method 
 for the statement of a well settled branch of law 
 by way of private exposition, and has also shown 
 that it may prepare the way for codification. 
 Mr. Chalmers' work, which was first published 
 not long after this, was transformed into a Code 
 (the Bills of Exchange Act) in 1882, and in 1893 
 the Sale of Goods Act, also prepared by him, 
 codified another important branch of commercial 
 law. 
 
 The history of the Partnership Act may be 
 very briefly told. In 1879 I drafted a Bill 
 intended, first, to codify the general law of 
 partnership ; secondly, to authorize and regulate 
 the formation of private partnerships with limited 
 liability, corresponding to the societe en commandite 
 of Continental law ; and, thirdly, to establish 
 universal and compulsory registration of firms. 
 The two latter objects were those which my clients 
 at that time were most bent on. Subsequent 
 experience has shown that the facility given by 
 the Companies Act, though seemingly unsus- 
 pected by its framers, of forming a limited company 
 with as small a number of substantial members 
 as may be desired (Salomon v. Salomon <& Co. 
 [1897] A. C. 22) makes any intermediate grade of 
 limited liability needless. The registration part 
 was dropped in 1880 as a condition of the general 
 approval of the Board of Trade. In 1882 the Bill 
 
vi PREFACE. 
 
 made so much way as to be reported by a Select 
 Committee, which, however, declined to proceed 
 with the limited partnership scheme. After being 
 again introduced several times without reaching 
 the stage of effectual debate, the Bill was, in 1888 
 and 1889, further considered by the Board of 
 Trade and the Attorney-General with a view to 
 its adoption by Ministers. In 1890 it was intro- 
 duced by the Lord Chancellor in the House of 
 Lords, and there revised by a Select Committee, 
 which made various changes in the arrangement 
 of the sections and a certain number of amend- 
 ments. The Bill passed through the House of 
 Commons with a few further amendments, due 
 partly to Sir B. Webster,* then Attorney- 
 General, and partly to Sir Horace (now Lord) 
 Davey, became law, and came into operation on 
 January 1, 1891. 
 
 The Act may not have added much to the 
 knowledge of the law possessed by practising 
 members of the Chancery Bar, but even to them 
 it may save time and trouble. Some familiar 
 principles for which there was but little reported 
 authority have been placed beyond even formal 
 doubt, and some doubtful points are settled 
 according to modern usage and convenience. 
 Possibly members of the Common Law Bar, and 
 probably students entering on the subject, may be 
 
 * Now Lord Alverstone. 
 
PREFACE. vii 
 
 thankful for the Act ; and it ought at any rate to 
 make the substance and reasons of the law more 
 comprehensible to men of business who are not 
 lawyers. It is not to be supposed that difficult 
 cases can be abolished, or to any great extent 
 made less difficult, by this or any other codifying 
 measure. But since difficult cases are after all 
 the minority, perhaps it is of some importance 
 for men of business to be enabled to see for 
 themselves tbe principles applicable to easy ones. 
 
 The Act does not deal with the rules of pro- 
 cedure governing actions by and against partner- 
 ship firms, which are already codified in the Rules 
 of Court, nor with the administration of the assets 
 of firms and partners in bankruptcy, which is 
 governed by the Bankruptcy Act and Rules, and 
 the case-law which that Act assumes to be known. 
 The parts of the present work relating to these 
 topics are, for the convenience of presenting the 
 subject as a whole, retained in their old form. 
 
 It will be observed that the Partnership Act 
 does not purport to abrogate the case-law on the 
 subject, but on the contrary declares that " the 
 rules of equity and common law applicable to 
 partnership shall continue in force except so far 
 as they are inconsistent with the express pro- 
 visions of this Act" (sect. 46). The Act, there- 
 fore, has to be read and applied in the light of 
 
viii PREFACE. 
 
 the decisions which have built up the existing 
 rules. Should any -practitioner imagine that he 
 might now relegate Lord Lindley's book, for 
 example, to an upper shelf, he would be soon 
 undeceived. Codes are not meant to dispense 
 lawyers from being learned, but for the ease of 
 the lay people and the greater usefulness of the 
 law. The right kind of consolidating legislation 
 is that which makes the law more accessible 
 without altering its principles or its methods. 
 
 So far as judicial references to the Act have 
 gone, they tend to show that it has accomplished 
 its object of declaring the law as it was settled 
 and understood, without prejudging any remain- 
 ing doubts on questions of principle, and without 
 raising any new doubts on points of detail. 
 
 In the present edition some simple conveyancing 
 forms have been added, which, it is hoped, may 
 be found useful. They are contributed by my 
 learned friend and cousin Mr. Dighton N. Pollock, 
 of Lincoln's Inn. 
 
 F. P. 
 
 13, Old Square, Lincoln's Inx, 
 Michaelmas, ] 900. 
 
TABLE OF CONTENTS. 
 
 PART I. 
 
 THE PAETNEBSHIP ACT, 1890. 
 (53 & 54 Vict. c. 39.) 
 
 Nature of Partnership. 
 
 SECT. page 
 
 1. Definition of Partner ship 1 
 
 Distinction between partnership and common ownership 
 
 or sharing gross returns 
 
 Limitation of number of partners in private partnership 
 
 2. Rules for determining existence of partnership . 
 
 Cox v, Hickman ....... 
 
 3. Postponement of rights of person lending or selling in con 
 
 sideration of share of profits in case of insolvency 
 
 4. Meaning of firm 
 
 Firm not recognized as artificial person in England 
 
 Otherwise in Scotland 
 
 Use of names in general 
 
 Foreign laws as to firm-names 
 Trade name and trade mark . 
 
 10 
 
 12 
 
 19 
 21 
 21 
 22 
 22 
 24 
 24 
 
 Relations of Partners to Persons dealing with them. 
 
 . Power of partner to hind the firm 27 
 
 Exception where there is neither apparent nor real 
 
 authority 28 
 
 General limits of partner's authority . . . .29 
 Implied authority of partners, and especially of partners 
 
 in trade 29 
 
 Special instances : negotiable instruments . . .31 
 
TABLE OF CONTENTS. 
 
 Borrowing money 
 
 Sale and pledge .... 
 
 Purchase ..... 
 
 Employment of solicitor 
 
 Eeceipt of payments and releases . 
 
 Servants 
 
 Where authority not implied : deeds 
 Guaranties ..... 
 Submission to arbitration 
 
 6. Partners hound by acts on behalf of firm 
 
 7. Partner using credit of firm for private purposes 
 Whether reasonable belief in partner's authority makes 
 
 a difference . 
 
 8. Effect of notice that firm trill not be bound by acts of 
 
 partner ......... 
 
 Restrictive agreement inoperative if not notified . 
 
 9. Liability of partners ....... 
 
 10. Liability of the firm for wrongs ..... 
 
 11. Misapplication of money or property received for or in 
 
 custody of the firm ....... 
 
 12. Liability for wrongs joint ana 'several . . . . 
 
 When principle of agency applies ..... 
 Misapplication of client's money by one partner . 
 
 13. Improper employment of trust property for partnership 
 
 purposes ......... 
 
 Cannot be said to create partnership liability 
 
 14. Persons liable by " holding out" ... 
 
 What amounts to " holding out "... 
 The rule applies to administration in bankruptcy 
 But not to bind deceased partner's estate 
 Liability of retired partners ... 
 
 15. Admissions and representations of partners 
 
 16. Notice to acting partners to be notice to the firm 
 
 17. Liabilities of incoming and outgoing partners . 
 Test of liability of new firm 
 
 Novation 
 
 18. Revocation of continuing guaranty by change in firm 
 Evidence of intention that guaranty shall continue 
 
 'AGE 
 
 33 
 33 
 33 
 34 
 34 
 34 
 34 
 35 
 35 
 35 
 35 
 
 38 
 
 39 
 39 
 41 
 44 
 
 44 
 44 
 41) 
 50 
 
 52 
 52 
 53 
 55 
 55 
 56 
 56 
 57 
 58 
 58 
 61 
 62 
 62 
 63 
 
TABLE OF CONTENTS. 
 
 Eelatioxs of Partners to one another. 
 
 SECT. 
 
 19. 
 
 20. 
 
 21. 
 -» 
 
 PAGE 
 
 63 
 
 Variation bg consent of terms of partnership 
 
 Partnership property 65 
 
 Property bought with partnership money . . . .68 
 
 Conversion into personal estate of land held as partnership 
 
 property 69 
 
 What is a partner's share 71 
 
 23. Procedure against partnership property for a partner's 
 
 separate judgment debt . . . . . .71 
 
 Eules of Court for the purposes of this section . . 73 
 
 24. Mules as to interests and duties of partners subject to special 
 
 agreement. . 75 
 
 As to presumed equality of shares .... 
 
 As to rights of partners to indemnity and contribution . 
 As to the right of the partners to take part in the business 
 Duty of gratuitous diligence in partnership business 
 Consent of all required for admission of new partner 
 Power of majority to decide differences 
 Eight to copy books .... 
 
 25. Power to expel partner .... 
 
 26. Retirement from partnership at ivill 
 
 27. Where partnership for term is continued over, continuance 
 
 on old terms presumed 
 
 28. Duty of partners to render accounts, &c. . 
 
 29. Accountability of partners for private profits 
 Parallel rule in agency .... 
 
 3(1. Duty of partner not to compete with the firm 
 
 31. Rights of assignee of share in partnership 
 
 Dissolution of Partnership and its Consequences. 
 
 32. Dissolution by expiration or notice . 
 
 33. Dissolution by bankruptcy, death, or change . 
 
 34. Dissolution by illegality of partnership . 
 
 35. Dissolution by the Court .... 
 Dissolution at suit of partner of unsound mind 
 Conduct of partner as ground for dissolution 
 
 36. Rights of persons dealing with firm against apparent 
 
 members of firm 
 
 77 
 77 
 78 
 79 
 79 
 81 
 82 
 82 
 83 
 
 84 
 87 
 88 
 89 
 89 
 91 
 
 92 
 93 
 93 
 94 
 96 
 97 
 
 98 
 
xii TABLE OF CONTENTS. 
 
 SECT. 
 
 37 . Right of partners to notify dissolution 
 
 38. Continuing authority of partners for purposes of wind- 
 
 ing up 
 
 39. Rights of partners as to application of partnership pro- 
 
 perty 
 
 Nature of partner's right as lien .... 
 Against whom available ..... 
 Confined to partnership property at date of dissolution 
 Kules as to disposal of goodwill .... 
 
 Eights of purchaser thereof 
 
 Nature and incidents of goodwill .... 
 
 Goodwill does not survive 
 
 Eestraining subsequent use of partnership name . 
 
 40. Appwtionment of premium ivhere partnership prematurely 
 
 dissolved ........ 
 
 Rule in Atwood v. Maude 
 
 41. Rights where partnership dissolved for fraud or misrepre 
 
 sentation ........ 
 
 42. Right of outgoing partner in certain cases to sJiare profits 
 
 made after dissolution ..... 
 Claims against continuing partners qua executors or 
 
 trustees 
 
 Such claims must be distinct .... 
 Double or mixed claims for profits and interest not 
 
 allowed 
 
 Account of profits after dissolution useless in practice 
 What interest given 
 
 43. Retiring or deceased partner's share to be a debt 
 
 Surviving partner, as such, is not trustee 
 
 Statute of Limitations applies .... 
 
 44. Rule for distribution of assets on final settlement of 
 
 accounts ........ 
 
 45. Definitions of " Court " and " business " . 
 4(>. Saving fur rules of equity and common lair 
 
 47. Provision as to bankruptcy in Scotland . 
 
 48. Repeal 
 
 49. ('omuicnceincnt of Act 
 
 50. Short title 
 
 PAGE 
 100 
 
 101 
 
 105 
 107 
 108 
 109 
 110 
 110 
 113 
 114 
 115 
 
 116 
 119 
 
 120 
 121 
 
 125 
 128 
 
 129 
 129 
 129 
 130 
 130 
 130 
 
 130 
 132 
 133 
 133 
 133 
 133 
 133 
 
TABLE OF CONTENTS. 
 
 PART II. 
 PEOCEDUKE AND ADMINISTBATION. 
 
 CHAPTER I. 
 Procedure in Actions by and against Partners. 
 
 RULE 
 1 
 
 2 
 
 3 
 
 4 
 
 [Order XL Villa.] Actions in name of firm . 
 
 Discovery of partners' names in actions by firm 
 
 Service of writ in action against firm 
 
 Notice in ivhat capacity served 
 
 y. Appearance of partners 
 
 6. No appearance except by partners . 
 
 ' . Appearance under protest of person served as partner 
 
 8. Execution of judgment against firm 
 
 9. Attachment of debts owing from, a firm . 
 
 10. Application of Rules to actions betiveen co-partners 
 
 11. Application of Rules to person trading as a firm 
 
 PAGE 
 
 . 135 
 . 136 
 . 137 
 137 
 138 
 138 
 138 
 139 
 140 
 140 
 141 
 
 CHAPTER II. 
 Procedure in Bankruptcy against Partners. 
 
 iET. 
 
 1. Consolidation of proceedings under joint and separate 
 
 petitions . . . 143 
 
 2. Creditor of firm may petition against one partner . .143 
 
 3. Court may dismiss petition as to some respondents only . 143 
 
 4. One trustee for property of partners separately bankrupt . 144 
 
 5. Creditor of firm may prove in separate bankruptcy for 
 
 purpose of voting 144 
 
 6. Dividends of joint and separate properties generally 
 
 declared together 145 
 
 7. Actions in names of trustee and solvent partners . . 145 
 
civ TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 Administration of Partnership Estates. 
 
 i.RT. PAGE 
 
 1. General rule of administration : joint and separate estate . 147 
 Dicta stating the rule . . . . . . .150 
 
 Provisions of Bankruptcy Act, 188 a . . . .150 
 
 Pule of Indian Contract Act . . . . .151 
 
 Discrepance between the legal and the mercantile system 
 
 of administration . .... 152 
 
 Law of Scotland . .153 
 
 Law of France, Switzerland, and Germany . . . 153 
 
 2. Gases ivhere joint creditors may prove against separate 
 
 estate .154 
 
 3. Where joint estate may prove against separate estates or 
 
 estate of minor firm . . . . . . .155 
 
 4. Partners must not compete with creditors (subject to special 
 
 exceptions) . . . . . . .158 
 
 Loan to firm by wife of partner ..... 159 
 
 The exceptional right of proof in cases of fraudulent con- 
 version considered : judgment in Lacey v. Hill . . 1(13 
 Creditor's right against estate of deceased partner. . 1(18 
 
 5. Rights of joint creditors holding separate security, or con- 
 
 versely . . . . . . . . . lllll 
 
 fi. Doubh proof allowed on distinct contracts with firm and 
 with its members severally ...... 
 
 7. Effect of separate discharge of partner .... 
 
 171 
 173 
 
 PART I I I 
 FORMS. 
 
 1. Deed of partners!) ip between two business men . . .174 
 
 2. Deed of partnership between three business men . . lsn 
 
 3. Drea 1 of partnership between three solicitors . . . 1S7 
 
 4. Deed of dissolution of partnership . . . . .1114 
 
 INDEX 
 
 199 
 
TABLE OF CASES. 
 
 Aas v. Benham 
 Abbott, Re 
 Adams v. Bankart 
 Adamson, Ex parte 
 Agace, Ex parte 
 Airey v. Borham 
 Akhurst v. Jackson 
 Alder v. Fouracre 
 Alderson v. Pope 
 Alien v. L. & S. W. E. 
 Anonymous (2 K. & 
 
 441) 
 Arundell v. Bell 
 Asbwortb v. Munn 
 
 v, Outranx 
 
 Astle v. "Wright 
 Atkins, Ex parte 
 Att.-Gen. v. Hubbuck 
 Atwood r. Maude 97, 
 Austen v. Boys 
 
 B. 
 
 PAGE 
 
 90, 91 
 144 
 35 
 154 
 58 
 9, 118 
 117 
 89 
 40 
 50 
 
 95, 97 
 
 115 
 
 70 
 
 93 
 
 118 
 
 163 
 
 70 
 
 117, 119 
 
 . 115 
 
 63 
 
 Backhouse c. Hall . 
 Badeley v. Consolidated 
 
 Bank . . .17, 21, 43 
 Baird's Case ... 28 
 Bank of Australasia v. 
 
 Breillat 30, 31, 33, 36, 37 
 
 of England Case . 68 
 
 Banks v, Gibson . .115 
 Barber, Ex jiarte . . 65 
 Barfield v. Loughborough 103 
 Baring's Case ... 47 
 Barnes v. Youngs . . 83 
 Bate, Ex parte . . .170 
 Baxter e. West . . 97 
 
 Bayley r. Manchester, 
 
 Kaiiway Co. 
 Beckett v. Eamsdale 
 Belfield <•. Bourne . 
 Bentley v. Craven . 
 Bignold v. "Waterhouse 
 Bilborough v. Holmes 
 Bing, Ex parte 
 Binney i\ Mutrie 
 Bishop v. Countess of Jersey 
 
 . 49 
 43, 168 
 . 120 
 . 89 
 . 39' 
 . 60 
 . 20 
 . 132 
 46 
 Blair v. Bromley . 44, 45 
 Blisset v. Daniel . 81, S3 
 Bluck v. Capstick . .119 
 Blyth v. Fladgate 43, 48, 51, 52 
 Bolingbroke v. Swindon 
 "ILocal Board . 
 Bonbonus, Ex parte . 
 Bond v. Gibson 
 Brettel v. Williams . 
 Brice's Case 
 Brown ,. DeTastetSO, 122 
 
 r. Hutchinson 
 
 !>. Leonard 
 
 Buckley r. Barber 
 Bucknall v. Eoiston 
 Budgett, lie 
 Bullen v. Sharp 
 Bullock v. Caird 
 
 v. Crockett 
 
 Burchell v. Wilde 112,113 
 
 Burdon v. Barkus 
 Burgess v. Burgess 
 Burmester v. Norris 
 Bury v, Allen . 
 Butchart v. Dresser 
 Butcher, Ex parte 
 
 50 
 33 
 34 
 35 
 100' 
 123, 
 129 
 72, 73 
 41 
 104 
 109 
 155 
 13 
 154 
 118 
 115. 
 116 
 67, 75, 78 
 . 23 
 . 33 
 . 118 
 102, 105 
 . 149 
 
TABLE OF CASES. 
 
 0. 
 
 PAGE 
 
 Oambefort & Co. v. Chap- 
 man .... 43 
 Campbell -•. Mullett . 70 
 
 •Carr i>. L. & N. W. E. Co. 54 
 Carter v. Whalley . 56, 99 
 Castell, Ex parte . . 156 
 Chandler, Ex parte . . 43 
 Cheesman v. Price . . 97 
 •Childs, Be ... 93 
 
 Chippendale, Ex parte 
 (German Mining Com- 
 pany's Case) . 75, 78 
 Churton v. Douglas 110, 112, 
 113, 114 
 Clark v. Leach ... 86 
 Clayton's Case . 45, 60, 100 
 
 Cleather v. Twisden . 
 Clegg f. Edmondson . 
 Clements v. Hall 
 
 r. Norris . 
 
 Collinge, Ex parte . 
 Const r. Harris 63, 64, 
 Cook, Ex, parte 
 
 ,,. Collins-ridge 
 
 Cookson r. Cookson . 
 ■Coomer r. Bromley . 
 Cooper n. Adams 
 
 r. Prichard . 
 
 Cope v. Evans 
 Corbett, Ex parte 
 Couldery v. Bartrum 
 Court v. Berlin . 
 Coventry r. Barclay 
 Cox r. Hickman 4, 
 
 46, 48 
 88 
 89 
 81 
 
 161 
 65, 81 
 
 162 
 
 112 
 85 
 48 
 
 155 
 46 
 26 
 
 . 169 
 
 59, 99 
 
 64 
 
 12, 13. 17, 
 
 IS, 40, 41 
 
 — r. Willoughby . . 8. 3 
 
 Craven v. Edmondson . 103 
 
 Crawshay r. Collins . . 123 
 
 r. Maule . 5, 67, 92 
 
 ■Croft ,-. Pike . . . 106 
 
 d. 
 
 Darhv r. Darby . ('^. 107 
 Darlington, Ac. Banking 
 
 Co., ' A't parte 27,31, 36, 37 
 David and Matthews, He 111, 
 113, 114, 115 
 1 >a\ies /'. Lowndes . . 22 
 
 Davis -'. Davis. 12, 17, 19, 67 
 Davison, lie ... 43 
 
 Daw .'. Herring . 85, 87 
 
 Dawson r. Beeson . .111 
 Dean v. MacDowell . . 91 
 Dear, Ex parte . . 149, 150 
 De Bemales v. New Tork 
 
 Herald . . . .141 
 Delhasse, Ex parte . . 16 
 Deny i: Peek . . .121 
 Devaynes /•. Xoble 45, 47, 60, 
 
 100 
 Dickin, Ex parte . 145, 171 
 Dickinson r. Valpy . . 32 
 Doetsch, Ri- . .154 
 
 Du Boulay r. Du Boulay 24, 25 
 Dundonalii (Earl of) v. 
 
 Masterman . . .49 
 Dutton r, Morrison . .152 
 
 Ebbs r. Boulnois . . 144 
 
 Edmonds, Ex parte . . 161 
 
 r. Robinson . 120 
 
 Ellis . . Wadeson . .138 
 
 England r. Curling . . 6, 64 
 Eno ■ . Dunn ... 26 
 
 Esposito r. Bowden . . 94 
 
 Essel . . Hayward . . 95 
 
 Essex i; Essex . . So 
 
 Eyre. Ex parte . 47 
 
 F, 
 
 Farquhar >: Hadden . 71 
 Farr r. l'eart-e . . .115 
 
 Fawcett r. Whitehouse . S(i 
 Featherstonhaugh >'. Fen- 
 wick . . 85, SS 
 Flockton r. Banning . 127 
 Fox c Clifton . 42, 55 
 --r. Ilanbury . 102, 106 
 Frances Handford & Co., 
 
 Be ... 141 
 
 Eraser r, Kershaw . . 102 
 Freelandr. Stansfeld 117, lis 
 Fri'iich ,-. Styling . . 2 
 Friend r. Young . 41, 100 
 
 G. 
 
 Gall way (Lord) r. Mathew 40 
 Garland r. Jacomb . 39 
 
TABLE OF CASES. 
 
 German Mining Com- 
 pany's Case . 
 Gillett v. Thornton . 
 Gillingham < . Beddow 
 Ginesi v. Cooper & Co. 
 Glassington v. Thwaites 
 Gliddon, Exparte 
 Gordon, Ex parte 
 Gosling v. Gaskell . 
 Grain's Case 
 Gray v. Chiswell 
 Grayson, Be 
 Grazebrook, Exparte 
 Greatrex v. Greatrex 
 Green i: Beesley 
 Griswold !'. Waddington 
 
 H. 
 Hall v. Barrows 
 Hamil v. Stokes 
 Hammond, Ex parte 
 Handford & Co., Be. 
 Harman v. Johnson . 
 Harris, Exparte 156, 
 
 Harrison v. Jackson . 
 
 e. Tennant 
 
 Hayman, Exparte . 
 Head, Re . 
 Heath v. Sansom 
 Heilbut v. Nevill 
 Helmore v. Smith 
 Hendriks v. Montagu 
 Hendry v. Turner 
 Hildesheim, Be 
 Hinds, Ex parte 66, 
 Hodgson, Be . 
 Holloway v. Holloway 
 Holme v. Hammond 
 Honey, Exparte 
 Hort's Case 
 Houlton's Case 
 Hunter v. Dowling . 
 
 id 
 
 85 
 114 
 108 
 
 90 
 163 
 160 
 
 13 
 
 62 
 152 
 
 20 
 162 
 
 76 
 2 
 
 94 
 
 
 
 112 
 
 
 
 117 
 
 
 
 173 
 
 
 
 141 
 
 
 
 45 
 
 157, 
 
 164, 
 
 
 165 
 
 
 34 
 
 9( 
 
 , 97 
 
 56, 
 
 159 
 
 
 61 
 
 56, 
 
 103 
 
 
 37 
 
 
 73 
 
 26, 27 
 
 
 101 
 
 
 20 
 
 158, 
 
 166 
 
 43, 
 
 168 
 
 
 23 
 
 14, i' 
 
 
 172 
 
 
 62 
 
 
 100 
 
 10 
 
 6, 
 
 130 
 
 Ide, Ex parte 
 
 J. 
 
 J. v. S. . 
 
 Jennings v. Baddeley 
 v. Hammond 
 
 142 
 
 95 
 
 96 
 
 9 
 
 PAGU 
 
 Jennings v. Jennings . 112 
 Jones, Ex parte. Be Young 11 
 
 r. Foxall . 127, 129 
 
 i: Lloyd . . 92, 93, 96 
 
 v. Noy ... 95 
 
 K. 
 
 Kelly !\ Hutton 
 Kemptner, Ex parte . 
 Kendal v. Wood 
 Kendall /•. Hamilton 
 Kewney v. Attrill 
 Kilshaw v. Jukes 
 King v. Chuck . 
 Knox i'. Gye . 
 
 . 80 
 . 70 
 37, 38 
 42, 43 
 . 73 
 14 
 . S6 
 89, 130 
 
 L. 
 
 Labouchere r. Dawson 111, 
 Lacey v. Hill 58, 151, 156, 
 161, 164, 166, 
 Lacy v. "Woolcott 
 Langmead's Trusts, Be 107, 
 Lawson v. Bank of London 
 Leaf v. Coles . 
 Leary v. Shout 
 Lee i>. Haley . 
 
 v. Page 
 
 Levieson v. Lane 
 
 Levy t>. Walker 23, 110, 
 
 Lewis r. Beilly 39, 103, 
 
 Limpus v. General Omni- 
 bus Co. 
 Llewellyn ■!;. Butherford . 
 Lodge and Fendal, Ex 
 
 parte . 157, 
 v. Prichard . 148, 
 
 London Financial Asso- 
 ciation v. Kelk 
 Lovell v. Beauchamp 
 Lyon v. Haynes 
 
 v. Knowles 
 
 v. Tweddell . 98, 
 
 Lysaght v. Clark 
 
 M. 
 
 Maclver v. Burns . .141 
 M'Kenna, Ex parte (Bank 
 of England Case) . . 68 
 
 b 
 
 113 
 158, 
 
 167 
 
 103 
 
 108 
 26 
 95 
 97 
 25 
 
 119 
 
 37 
 
 111, 
 
 116 
 104, 
 
 105 
 
 49 
 113 
 
 164 
 
 150, 
 152 
 
 3 
 
 142 
 101 
 3 
 120 
 139 
 
TABLE OF CASEH. 
 
 Mackenzie, Ex parte 
 
 WOK 
 
 143 
 
 Parsons )>. Hayward S-J 
 
 J AOJS 
 
 , S3 
 
 Manchester and County 
 
 
 Pawsey /•. Annstrong 
 
 6 
 
 Bank, Ex parte 
 
 171 
 
 Payne r. Hornby 
 
 109 
 
 Marsh v. Keating 
 
 47 
 
 Pearson r. Pearson . 112, 
 
 114 
 
 — r. Joseph 
 
 51 
 
 Pease r, Hewitt 
 
 118 
 
 Murtyn e. Gray 
 
 '>') 
 
 Philps, Ex parte 
 
 144 
 
 Marx v. Browne 
 
 4S 
 
 Pickering /•. Stephenson . 
 
 S2 
 
 Mason, In re . 
 
 L'(l 
 
 Pinet & Cie. r. Maison 
 
 
 Massani v. Thorley's Cattle 
 
 
 Louis Pinet . 
 
 23 
 
 Food Co. 
 
 23 
 
 Pini '■. Boncoroni 
 
 106 
 
 Maude. Ex parte 
 
 162 
 
 Plumer < . Gregory 4- 
 
 , 46 
 
 Maughan v. Sharpe . 
 
 23 
 
 Plumnier, lie 
 
 169 
 
 Mellersh r. Keen 
 
 92 
 
 Pooley r. Driver . 4, lc 
 
 , is 
 
 Menendez r. Holt 
 
 114 
 
 Potter /-. Jackson 
 
 132 
 
 Merchant Banking Co. of 
 
 
 Poulton r. L. & S. W. E. 
 
 
 London v. Merchants' 
 
 
 Co. 
 
 49 
 
 Joint Stock Bank . 
 
 23 
 
 
 
 Metcalf r. Bruin 
 
 63 
 
 Q. 
 
 
 Mills, Ex parte 
 
 20 
 
 
 Mollwo, March & Co. ,-. 
 
 
 Quarman e. Burnett 
 
 56 
 
 Court of Wards . 5, 1" 
 
 , 54 
 
 
 
 Montgomery v. Thompson 
 
 26 
 
 E. 
 
 
 Moore r. Knight 
 
 45 
 
 
 Morley, Ex parte . 149, 
 
 1.36 
 
 Eead c. Bailev 152, 156. 
 
 l.j.s. 
 
 Mycock r. Beatson . 
 
 121 
 
 164, 
 
 166 
 
 
 
 Beade <-. Bentley 
 
 14 
 
 X. 
 
 
 Eeddaway '•. Banham 
 
 26 
 
 
 Eeid , . Hollinshead 
 
 6 
 
 Nanson r. Gordon . 
 
 160 
 
 Ehodes e. Moules . 4( 
 
 . 4S 
 
 Natusch r, Irving 
 
 SI 
 
 Bidsrwav >. Clare 14s. 
 
 151 
 
 Neilson ,: Mossend Iron 
 
 
 Bitson.7?. 
 
 132 
 
 Co. 8< 
 
 i, NT 
 
 Eobinson. Ex part: 99, 
 
 1H2 
 
 Nerot v, Burnand 
 
 66 
 
 \ ..1,*..-.™ 
 
 | J ( ^j 
 
 Newbigging r. Adam 
 
 121 
 
 < . - L >11 1 1. 1 LI . . 
 
 Bolfe i: Flower 61, 62, 150 
 
 Hi!) 
 
 Niemann >•. Niemann 
 
 35 
 
 Boss r. Parkvns 
 
 13 
 
 Nottingham, Ex parte 
 
 I.")!) 
 
 r. White . 
 
 132 
 
 Nowell c. Nowt'll 
 
 131 
 
 Eouse r. BradfordBankiug 
 
 
 
 
 Co. 
 
 60 
 
 0. 
 
 
 Bowe r. Wood . 
 
 7!) 
 
 
 liowland and Crankshaw, 
 
 
 Oakford r. Kuvopean and 
 
 
 Jle. . 
 
 a(i 
 
 American Sti'am Ship- 
 
 
 Buffiu, Ex part, 
 
 71 
 
 ping Co. 
 
 60 
 
 Bussell i: Caiiibefort 
 
 137 
 
 Owen, Ex parte 
 
 104 
 
 i . Bussell 
 
 N2 
 
 V. 
 
 Pinlstow Assuviiuco Asso- 
 
 
 St. Aubyn c. Smart . 
 
 44 
 
 I'isition 
 
 (1 
 
 St. (iobain, &c. Co. <•, 
 
 
 I'ugr r, Cowasjco Eduljco 
 
 ION 
 
 lloyormaun's Agency . 
 
 137, 
 
 Parkers, lie 
 
 16!) 
 
 
 140 
 
TABLE OF CASES. 
 
 Salting, E.r parte 
 Sargood's Claim 
 Saunders r. Sim Life 
 Assoe. Co. of Canada . 
 
 P4GK 
 
 154 
 75 
 
 Scarf ?'. Jardine 
 Scott !\ Rayment 
 
 v. Rowland 
 
 Seixo v. Provezende 
 Shaw v. Benson 
 Sheen, E.r parte 
 Sheil, E.r parte 
 Sheppard, Ex parte 
 Shirreff v. Wilks 
 Siddall, Be 
 Sillitoe, E.r parte 
 Simpson, Be 
 (•. Chapman 
 
 Sims v. Brutton 
 Singer Manufacturing Co. 
 r. Loog 
 r. Wilson . 
 
 . 61 
 
 6 
 
 . 116 
 
 26 
 
 9 
 
 . 159 
 
 21 
 
 169 
 
 38 
 
 . 10 
 
 160, 162 
 
 . 149 
 
 . 122, 
 
 128 
 
 . 46 
 
 26 
 
 26 
 
 . 106 
 
 60, 100 
 
 . 10 
 
 51 
 
 . 114 
 
 . Ill 
 
 . 68 
 
 103, 104 
 
 Skipp v. Harwood 
 Sleech's Case . 
 Smith r. Anderson 
 
 v. Bailey 
 
 v. Everett 
 
 v. Hancock 
 
 v. Smith 
 
 c. Winter 
 
 Societe Generale de Paris 
 
 v. Geen . . . 169 
 
 South Wales Atlantic 
 
 Steamship Co., Re 8 
 
 Stahles <■. Eley. . . 56 
 Stead r. Salt . . 34, 35, 57 
 Steel v. Lester ... 2 
 Steiglitz r. Egginton . 34 
 
 Steuart r. Gladstone 82, 115 
 Stewart t: Blakeway . 5, 67 
 
 Stocken r. Dawson . 107, 109 
 Stone, E.r parte . . 173 
 
 , Be . . . .20 
 
 Stroud v. Gwyer . 127 
 
 Swire i*. Redman . . 60 
 Syers v. Syers . . 15, 18 
 
 T. 
 
 Taylor, E.r parte . . 20 
 . v. Neate . .110 
 
 PAGE 
 
 Tennant, Ex parte . . 13 
 
 Thomason v. Prere . .103 
 
 Thy nne r. Shove . . Ill 
 Tomlinson v. Broadsmith. 34, 
 138 
 
 Topping, E.v parte . 161 
 
 Travis r. Milne . . 128 
 
 Trego v. Hunt . 82, 111, 113 
 
 Trotman, Exparte . . 151 
 
 Troughton -v. Hunter . 101 
 
 Tuff, Be . . . .159 
 
 Turner v. Major . 116, 123 
 
 Turney, Exparte . . 170 
 
 Turton v. Turton . . 23 
 
 Tussaud v. Tussaud . 23 
 
 V. 
 
 Vaudrey v. Simpson . 98 
 
 Venables c. Wood . . 14 
 
 Yyse r. Poster 122, 125, 127, 
 
 128, 129 
 
 W. 
 
 Be 
 
 Waddell's Contract 
 Wakeham, Be . 
 Walker t>. Hirsch 
 Walton -c. Butler 
 Waterer v. Waterer 
 Watney c. Wells 
 Watteau v. Penwick 
 Wedderburn v. Wedder- 
 
 burn . . 66, 113, 124 
 Wegg-Prosser v. Evans . 43 
 
 144 
 163 
 0, 6 
 68 
 67 
 97 
 28 
 
 West v. Skip 
 Westcott, Exparte . 
 Whetham v. Davey . 
 Whincup e. Hughes 
 Whitcomb v. Converse 
 Whitwell v. Arthur . 
 Wickham v. Wickham 
 Wigram v. Cox & Co. 
 Wild v. Southwood . 
 Willett v. Blandford 
 Williamson, Exparte 
 
 v. Barbour 
 
 Wilson, Be Wilson v. Hol- 
 
 loway . 69, 70 
 e. Johnstone. 118, 119 
 
 106, 109 
 
 . 163 
 
 73, 80 
 
 . 116 
 
 131 
 
 95 
 
 57 
 
 140 
 
 lb 
 
 125 
 
 78 
 
 58 
 
 137 
 
 122 
 
TAI'.LE OF CASES. 
 
 l'AGK 
 
 "Wilson /•. Whitehead . 1~> 
 
 Wood >>. Woad . . . H'J 
 
 Woodbridge r. Swann . 102 
 Worcester Com Exchange 
 
 Co. . . . 78 
 Worcester City, &c. Bank- 
 ing Co. r. Kirbank . 1 36, 
 137 
 
 PA (IE 
 
 Yates r. Dalton . . 32 
 — t: Finn . 85, 122, 123 
 
 Yonge, Er parte 156, 157, 162, 
 166 
 
 Yorkshire Banking ( 'o. r. 
 Beatson ... 30 
 
 Young, lie, E.r part- Jones 1 1 
 
( xxi ) 
 
 REFERENCES, ETC. 
 
 References to the Law Journal are now supplied for nearly all 
 oases cited. All cases decided by Superior Courts are also 
 d ated. 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 Reporter, subtract 51. 
 
 Liudley on Partnership (6th edition, 1893) 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 " (6th edition, 1894) for the fuller 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 
 
 OF THE 
 
 LAW OF PAKTNEKSHIP 
 
 PART I. 
 
 THE PARTNERSHIP ACT, 1890. 
 
 (53 & 54 Vict. c. 39.) 
 
 [For the Arrangement of Sections, see the General Table of Contents.] 
 
 An Act to declare and amend the Law of Partnership. 
 
 [14th August, 1890.] 
 
 Be it enacted by the Queen's most Excellent 
 Majesty, by and with the advice and consent 
 of the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, 
 and by the authority of the same, as follows : 
 
 Nature of Partnership. 
 
 1. — (1.) Partnership is the relation which sect, i. 
 subsists between persons carrying on a business p^n^p ' 
 in common with a view of profit. 
 
 (2.) But the relation between members of 
 any company or association which is — 
 
 (a.) Kegistered as a company under the f^ 26 Viet ' 
 
PARTNERSHIP ACT, 1890. 
 
 Part i. Companies Act, 1862, or any other Act of 
 
 Sect ' l - Parliament for the time being in force and 
 
 relating to the registration of joint stock 
 companies ; or 
 (b.) Formed or incorporated by or in pur- 
 suance of any other Act of Parliament or 
 letters patent, or Koyal Charter ; or 
 (c.) A company engaged in working mines 
 within and subject to the jurisdiction of 
 the Stannaries : 
 is not a partnership within the meaning of this 
 Act. 
 
 Illustrations. 
 
 1. A. agrees with B. to carry the mail by horse and cart 
 from Northampton to Brackley on the following terms : B. is 
 to pay to A. £9 per mile per annum, and A. and B. are 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. 1 
 
 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 
 where he likes, and engage the crew and take cargoes at his 
 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. 3 
 
 1 Green v. Beesley (1835) 2 Bing. N. C. 108, 42 R. R. 539. 
 
 2 Steel v. Lnttr (1877) 3 C. P. D. 121, 47 L. J. C. P. 43 ; see 
 judgment of Lindley, J. 
 
 3 French v. Sti/ring (1857) 2 C. B. N. S. 357, 26 L. J. C. P. 181. 
 
DEFINITION OF PARTNERSHIP. 
 
 4. A. and B., tenants in common of a house, and desiring to Part I. 
 let it, agree that A. shall have the general management, and SecTT 
 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. 1 
 
 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 
 equally 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. 3 
 
 (!. 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. 3 
 
 Nature of Partnership. 
 The definition now adopted by the legislature is the Definition of 
 result of a very large number of attempts made by various P artnershl P- 
 writers in England, America, and elsewhere. A collection 
 of these may be seen at the beginning of Lord Lindley's 
 book. Kent's (Comm. iii. 23) was the most business- 
 like, and I still think it was substantially accurate, and 
 might well have been accepted with more or less verbal 
 condensation and amendment. 
 
 The definition given by the Indian Contract Act, s. 239, 
 is Kent's in a more concise form, and runs as follows : — 
 
 Partnership is the relation which subsists between 
 
 1 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. 
 
 2 Lyon v. Knowles (1863) 3 B. & S. 556, 32 L. J. Q. B. 71. 
 
 3 London Financial Association v. Kelk (1884) 26 Ch. D. 107, 143 
 53 L. J. Ch. 1025. 
 
 B 2 
 
PARTNERSHIP ACT, 1890. 
 
 Part I. persons who have agreed to combine their property, 
 Sect. 1. labour, or skill in some business, and to share the 
 profits thereof between them. 
 
 Kent's definition was criticized by Jessel, M.R., in 
 Pooley 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 
 association requires that one or more of the partners shall 
 contribute labour or skill, or what they shall contribute, is 
 a question which may be considered as subsidiary." 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 hand, 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. Hickman (notes on sect. '2, below), 
 unless the business is conducted on his behalf. 
 
 In order to meet this criticism, I proposed, in the third 
 and fourth editions of the present work, the following 
 statement : — 
 
 Partnership is the relation which subsists between 
 persons who have agreed to share the profits of a 
 business carried on by all or any of them on behalf of 
 all of them. 
 
 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 
 
DEFINITION OF PARTNERSHIP. 
 way in common ; " 1 where " profits " means the excess of Part I. 
 
 returns over outlay. From this the new statutory defini- Sect. 1. 
 tion appears to have been formed. The principle, however 
 expressed, at once excludes several kinds of transactions 
 which at first sight have some appearance of partnership. 
 
 Among its applications exemplified in the cases above What is not 
 cited as illustrations are these : — The common ownership common ' P 
 of any property does not of itself create any partnership ownershl P- 
 between the owners ; moreover, there may be an agreement as 
 to the management and use of the property, and the applica- 
 tion of the produce or gains derived from it, without any 
 partnership arising. 8 On the other hand, there may be 
 a part ownership without partnership in the property itself, 
 together with a real partnership in the business of managing 
 it for the common benefit. 3 
 
 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. 4 Even an agreement to Agreement to 
 bear a definite share of loss as well as take a definite share, andloss ^ 
 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. 6 The rules 
 
 1 Mollwo, March <b Go. v. Court of Wards (1872) L. R. 4 P. C. at 
 p. 436. 
 
 2 Illustrations 2, 3, and 6 : — Lindley, 13, 38, 39. As to part, 
 owners of ships (the most common and important case), see Lindley, 
 34 ; Maude and Pollock on Merchant Shipping (4th Ed.), 100 ; 
 Maclachlan on Merchant Shipping (2nd Ed.), 90, 102 ; Kent, Com. 
 iii. 154, 155 ; and Stoiy on Partnership, ch. xvi. passim. 
 
 ' Illustration 2 :— Cockburn, C.J., 2 C. B. N. S. 363 (1857) ; cp. 
 Crawshay v. Maule (1818) 1 Swanst. at p. 523, 18 R. R. at p. 136 ; 
 Steward v. Blakeway (1869) L. R. 4 Ch. 603. 
 
 4 Illust. 5. 
 
 ' Walker v. Hindi (1884) 27 Ch. Div. 460, 54 L. J. Ch. 315. 
 
PARTNERSHIP ACT, 1890. 
 
 Part I, 
 Sect. 1. 
 
 Specific per- 
 formance of 
 partnership 
 contracts. 
 
 " Joint ad- 
 venture." 
 
 stated in this and the foregoing paragraph are now declared 
 by the Act itself in sect. 2, which see. It is practically 
 more important to exclude from the definition these 
 relations more or less resembling it at first sight than to 
 make the definition affirmatively complete. 
 
 The remedy of specific performance is generally not 
 applicable to an agreement to enter into partnership : for 
 " it is impossible to make persons, who will not concur, 
 carry on a business jointly for their own common advan- 
 tage." But where such an agreement has been acted on, 
 the execution of a formal deed recording its terms may be 
 ordered by way of specific performance if necessary to do 
 justice between the parties. 1 
 
 Scottish writers make a difference between partnership 
 proper and "joint adventure," which is thus defined in 
 Bell's Principles, art. 392 :— 
 
 Joint adventure or joint trade is a limited partner- 
 ship, confined to a particular adventure, speculation, 
 course of trade, or voyage; and in which the partners, 
 either latent or known, use no firm or social name, 
 and incur no responsibility beyond the limits of the 
 adventure. 
 
 I do not find that the incidents of a "joint 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. 3 
 
 Scott v. Rayment 
 
 Pawseij v. Armstmnti (1881) 18 CU. I). 698. cannot now be relied on ; 
 see the remarks of the Lords Justices on it in Walker v. Hirsch. 
 
 1 Kni/land v. Citriimj (1844) 8 Beav. 129, 137 
 (1868) L. R. 7 Eq. 112. 
 
 - Lord Eltlon seems to have denied it. ;$ Dow, at p. 229. Trans- 
 actions of this kind, when they occur in England, are dealt with, so 
 far as they extend, in the same way as ordinary partnerships : see 
 Ueid v. HaUimhatd (1825) 4 B. & C. 867, 28 B. B. 488. 
 
DEFINITION OF PARTNERSHIP. ,< 
 
 We may compare with "joint adventure " the *' association Part i. 
 en participation " recognized by French law (Code de Sect. 1. 
 Comm. 47 — 50). But this seems to include transactions 
 which, 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 societe is 
 a wider term than our " partnership." It covers such 
 matters as the sharing of benefit derived from the common 
 use of enjoyment of anything by owners or tenants in 
 common. 
 
 It will be observed that by sect. 45 of the Act, » Business." 
 "business" includes every trade, occupation, or profession. 
 This, of course, does not abrogate or vary any rule of law 
 or judicially recognized usage which forbids any particular 
 occupation or profession to be exercised in partnership, 
 e.g. the profession of a barrister. 
 
 The provision of sect. 1, sub-sect. 2, is made necessary Exclusion of 
 by the fact that there are many joint-stock companies and and associa- 
 other associations, established for the purpose of carrying tl0 " s °°* 
 on business and with a view to profit, which come within ordinary law 
 the general conception of partnership, and indeed are sn i p . 
 within the terms of almost every definition that has been 
 attempted, but, for reasons of policy and convenience, or 
 in some cases in consequence of their peculiar origin and 
 history, are governed by special regulations and not by 
 the law which governs ordinary private partnerships. 
 These are therefore excluded from the scope of the present 
 Act. A similar provision, upon which this is modelled, is 
 in the Indian Contract Act, s. 266. The great substantial 
 difference between partnerships and companies is that an 
 ordinary partnership is founded on personal confidence 
 between the partners, and gives every partner equal rights 
 in the conduct of the business, as we shall • see hereafter, 
 
PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 1. 
 
 Limits to 
 number of 
 partners in 
 private 
 partnership. 
 
 unless there is an express agreement to the contrary. A 
 commercial company, on the other hand, is regularly com- 
 posed of a minority of active members, designated as 
 directors or by some other name of office, and of a 
 majority who need not and most commonly do not know 
 anything of one another, and have no part in the ordinary 
 conduct of the business. 1 
 
 By the Companies Act, 1862, 2 a private partnership 
 cannot be formed of more than ten persons for banking, 
 or twenty for any other business. 
 
 At common law there was no limit to the number of 
 persons who might enter into partnership, and it is the 
 better opinion 3 that there was nothing to prevent them, as 
 a matter of law, from dividing the capital into transferable 
 shares, and acting as a joint-stock 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 partnership dealings, although they would be 
 individually liable for the debts of the concern to a creditor 
 who had dealt 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 
 
 1 See Lindley, 21. 
 
 2 25 & 26 Vict. c. 8!), s. 4. 
 
 3 Lindley on Companies, 135, 136. 
 
 * See Lindley, 111. A creditor who has notice, e.g. a solicitor who 
 has rendered professional services in forming and carrying on the 
 association, knowing the number of members to exceed twenty, cannot 
 recover : lie S. U'ahs Atlantic Steamship Co. (1875-6) 2 Ch. Div. 763 
 -J(i L. J. Oh. 177. 
 
DEFINITION OF PARTNERSHIP. 
 
 any other business, and complying with the law by coming Part. I. 
 within one of the special categories laid down in the Sect. 1. 
 ■Companies Act (substantially identical with those of the 
 sub-section now before us), may be called extraordinary 
 partnerships. They are governed by special rules of law, 
 for the most part statutory, which we shall not here enter 
 upon. The 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 specified, 
 the class (a) are necessarily corporations, the association 
 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 1 incor- 
 porated. 
 
 The class (c) are in no case incorporated, but are 
 ordinary partnerships modified by local custom, and since 
 1869 by statute also. 3 
 
 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 
 Companies Act, and are therefore unlawful if not regis- 
 tered: for example, a mutual marine insurance association, 3 
 Or mutual benefit 4 or loan 5 society. On the other hand, 
 
 i 1 By 7 Wm. 4 & 1 Vict. c. 73, the Crown may establish companies 
 by letters patent without incorporation. 
 
 2 The Stannaries Act, 32 & 33 Vict. c. 19, amended by 50 & 51 
 Vict. c. 43. 
 
 3 Padstow Assurance Association (1882) 20 Ch. Div. 137, 51 L. J. 
 Ch. 344. 
 
 . " Jennings v. Hammond (1882) 9 Q. B. D. 225, 51 L. J. Q. B. 493. 
 5 Shaw v. Benson (1883) 11 Q. B. Div. 563, 52 L. J. Q. B. 575. 
 
10 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 2. 
 
 .Rules for 
 determining 
 existence of 
 partnership. 
 
 societies may be formed for such purposes as investment 
 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 
 
 2. In determining whether a partnership 
 does or does not exist, regard shall be had 
 to the following rules : 
 
 (1.) Joint tenancy, tenancy in common, joint 
 property, common property, or part owner- 
 ship does not of itself create a partnership 
 as to anything so held or owned, whether 
 the tenants or owners do or do not share 
 any profits made by the use thereof. 
 
 (2.) The sharing of gross returns does not 
 of itself create a partnership, whether the 
 persons sharing such returns have or have 
 not a joint or common right or interest in 
 any property from which or from the use 
 of which the returns are derived. 
 
 (3.) The receipt by a person of a share of the 
 profits of a business is prima facie evidence 
 that he is a partner in the business, but 
 the receipt of such a share, or of a payment 
 contingent on or varying with the profits, 
 of a business, does not of itself make 
 
 1 2.V Siddall (1885) 29 Ch. Div. 1, 54 L. J. Ch. 682 ; cp. Smith 
 Anderson (1880) lo Ch. 1). l'47, 50 L. .1. Ch. 31). 
 
DEFINITION OF PARTNERSHIP. H 
 
 him a partner in the business ; and in Fart i, 
 particular — sect. 2. 
 
 (a.) The receipt by a person of a debt or 
 other liquidated amount by instal- 
 ments or otherwise out of the accruing 
 profits of a business does not of itself 
 make him a partner in the business or 
 liable as such: 
 
 (b.) A contract for the remuneration of a 
 servant or agent of a person engaged 
 in a business by a share of the profits 
 of the business does not of itself make 
 the servant or agent a partner in the 
 business or liable as such : 
 
 (c.) A person being the widow or child 
 of a deceased partner, and receiving 
 by way of annuity a portion of the 
 profits made in the business in which 
 the deceased person was a partner, is 
 not by reason only of such receipt a 
 partner in the business or liable as such : 
 
 (d.) The advance of money by way of 
 loan to a person engaged or about to 
 engage in any business on a contract ■• 
 with that person that the lender shall 
 receive a rate of interest varying with 
 the profits, 1 or shall receive a share of 
 
 1 A contract to pay a fixed sum " out of the profits " is equivalent 
 to a contract to pay a share of the profits arising from the business : 
 In re Young, Ex parte Jones [1896] 2 Q. B. 484, 65 L. J. Q. B. 681. 
 
12 PARTNERSHIP ACT, 1890. 
 
 Parti. the profits arising from carrying on 
 
 sect. 2. the business, does not of itself make 
 
 the lender a partner with the person 
 or persons carrying on the business or 
 liable as such. Provided that the 
 contract is in writing, and signed by 
 or on behalf of all the parties thereto : 
 
 (c.) A person receiving by way of annuity 
 or otherwise a portion of the profits 
 of a business in consideration of the 
 sale by him of the goodwill of the 
 business is not by reason only of such 
 receipt a partner in the business or 
 liable as such. 
 
 North J. has judicially stated, after careful examination, 
 that this section, and in particular sub-sect. 3, did not 
 make any change in the law as already settled. There is 
 no doubt that the intention was simply to declare the law 
 as it stood. 1 
 
 Illustrations, 
 
 A. As to sub-sects. 1 and 2. See illustrations and 
 commentary to sect. 1 above. 
 
 B. As to tlw general enactment of sub-sect. 8. 
 
 Rule in Coibt. 1- A trader is indebted to several creditors, and they enter 
 
 Hickman, and i n t„ an arrangement with him bv which the trade is to be 
 
 later applica- , , n , , . . ' , 
 
 tioiis. conducted under their superintendence, and they are to be 
 
 giadually paid off out of the profits. These creditors do not 
 
 thereby become partners of the debtor in his trade, or liable 
 
 for iho debts of the concern : for " the real grouud of the- 
 
 1 Jhwin v. Varis [1894] 1 Oil. 393, 399, 401, 63 L. J. Ch. 219. 
 
DEFINITION OF PARTNERSHIP. 13 
 
 liability," where such liability exists, " is that the trade lias Part I. 
 been carried on by persons acting on his behalf;" 1 and in sect. 2. 
 the case 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. 3 
 
 2. C. 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 0. H. that, among other things, S. and no other 
 person shall underwrite in the name of W. H. ; that S. 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. shall 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 agreement 
 C. H. is not a partner but a creditor of W. H. 3 
 
 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 
 
 1 Cox v. Hickman (1860) 8 H. L. C. 268, 306 (the leading case 
 which puts the law on its present footing). The principle of Cox v. 
 Hickman is not confined to partnership cases. The H. L. , reversing 
 the majority of the C. A., applied it to a case where it was sought to 
 make trustees for debenture-holders liable as undisclosed principals 
 for the contracts of a receiver whom they had appointed under their 
 powers : Gosling v. Gaskell [1897] A. C. 575, 66 L. J. Q. B. 848. 
 
 2 Lord Wensleydale in Cox v. Hickman (I860) 8 H. L. C. at 
 pp. 312-3 ; Blackburn, J., in Bullenv. Sharp (1865) (Ex. Oh.) L. R. 
 1 C. P. at pp. 111-12 ; Cleasby, B., lb. at p. 118 ; and further on the 
 effect of Cox v. Hickman, Bramwell, B., lb. at p. 127. 
 
 3 Ex parte Tennant (1877) 6 Ch. Div. 303. Compare Bullen v. 
 Sliarp (1865) (Ex. Ch.) L. R. 1 C. P. 86, 35 L. J. C. P. 105, a 
 somewhat similar case, where there was no actual division of profits. 
 
14 PARTNERSHIP ACT, 1890. 
 
 Parti. share of profits is paid from time to time to his executors 
 s eo t. 2. under this agreement ; the executors do not thereby become 
 partners. 1 
 
 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. 3 
 
 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. and W., 
 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 W. 
 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. 3 
 
 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 liable to a paper-maker for paper supplied to A. for the 
 general purposes of A.'s publishing business, and used for 
 printing B.'s book. 6 
 
 1 Holme v. Hammond (1S72) L. R. 7 Ex. 218, 41 L. J. Ex. 157. 
 
 2 Ross v. Parlytis (1875) L. R. 20 Eq. 331, 44 L. J. Ch. 610. 
 
 3 Kilshaw v. Jul-es (1863) 3 B. & S. 847, 32 L. J. Q. B. 217. 
 
 4 In JiWc v. Btnitlry (1858) 4 K. & J. 656. Lord Hathevley, then 
 V.-O. Wood, seems to have thought the " half-profits" contract did 
 create a partnership. Lord Lindley (On Partnership, 48, note (d) ) 
 thinks otherwise. So did tin- Court in the Scottish case of VenabUs 
 v. Wnttd, there cited liy him (see next note) ; but there, even if there 
 had heen a partnership, it was very difficult to make out that the 
 debt sued for was a partnership debt. 
 
 5 Vnmhles v. Wood (1839) 3 Ross, L. C. on Commercial Law, 
 
DEFINITION OF PARTNERSHIP. 15 
 
 C. As to the cases provided for under the special clauses Part I. 
 of sub-sect. 3. Sect. 2. 
 
 7. A., the proprietor of a music-hall, signs and gives to B., 
 in consideration of an advance of £250, a paper in the following 
 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 the 0. music-hall, 
 to be drawn up under the Limited Partnership Act of 28 & 29 
 Yict. c. 86." 1 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. 3 
 
 8. 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 part- 
 nership, 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 off the loan and 
 determine the agreement, a provision for settlement of accounts 
 at the end of the partnership, and payment 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 agreement expressly 
 purports to be for an advance by way of loan under the pro- 
 visions of 28 & 29 Vict. c. 86. 1 This transaction is merely v 
 colourable as a loan, and is not within the Act, and A. is 
 lisible as a partner for the debts of B. & Co. 3 
 
 529 ; cp. Wilson v. Whitehead (1842) 10 M. & W. 503, 12 L. J. 
 Exch. 43. 
 
 1 The present clause (d) of sub-sect. 3 is equivalent to sect. 2 of 
 this Act, which it superseded. The Act of 28 & 29 Vict, is repealed 
 by the principal Act (s. 48, below). 
 
 2 Syers v. Syers (1876) 1 App. Ca. 174. 
 
 f Pooley v. Driver (1876) 5 Ch. D. 458, 45 L. J. Ch. 466. 
 
16 PARTXERUHll' ACT, 1890. 
 
 Part I. 9- A., B., and 0. enter into an agreement in writing, 
 
 Sect. 2.™ expressly referring to 28 & 29 Vict. c. 8G, 1 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 
 partner. This sum of £ 1 0,000 appeara by the agreement to 
 be, and in fact is, the whole capital of the business. 
 
 By other clauses of the agreement C. 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 
 demanding 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 till the termi- 
 nation of the partnership. Under this agreement C. is a 
 partner with A. and B. 2 
 
 General The first section has laid down in general terms what 
 
 the'idea'of ° partnership is. The second section guards the principle 
 partnership, enunciated in the first. It excludes, in the first and 
 second sub-sections, various relations of two or more 
 persons to property held jointly or in common, and the 
 returns derived from such property, which at first sight 
 may appear to resemble partnership, hut do not really 
 satisfy the fundamental condition of "carrying on a 
 business in common with a view of profit." As a matter 
 of history, the conception of partnership has been worked 
 out in our Courts through the necessity of attending to 
 distinctions of this kind. It has therefore been thought 
 convenient to preserve the original arrangement of this 
 work for purposes of exposition, and give the authorities 
 by which this distinction is established at the very outset 
 
 1 See note ', last pn^e, 
 
 ' Kj: parte Lklhasse. (1877-8) 7 Oh. Div. 511, 47 L. J. Ch. 65. 
 
RULES AS TO PARTXEUSIIIP. yf 
 
 of the subject, in the commentary on sect. 1, though in Part I. 
 the Act their effect is stated in sect. 2. Sect. 2. 
 
 The third sub-section has a very different history, special pro- 
 
 visions tis to 
 
 From the latter part of the eighteenth till past the middle sharing 
 of the present century the prevailing doctrine was that pl ° ts ' 
 anyone who shared in the profits of a business (at all 
 events profits in the correct sense, net profits as opposed 
 to gross returns, or gross profits as they were sometimes 
 improperly called) must be liable as a partner. 1 The 
 decision of the House of Lords in Cox v. Hickman 3 showed 
 this doctrine to be erroneous. The true doctrine, as laid 
 down in recent authorities, and now declared by the Act, 
 is that sharing profits is evidence of partnership, but is not 
 conclusive. We have to look not merely at the fact that 
 profits are shared, but at the real intention and contract 
 of the parties as shown by the whole facts of the case. 3 
 Where one term of a contract creates a right to share 
 profits, it is not correct to take that term as if it stood 
 alone and presume a partnership from it, and then construe 
 the rest of the agreement under the influence of that pre- 
 sumption. Sharing profits, if unexplained, is evidence of 
 partnership : but where there is an express agreement the 
 agreement must from the first be looked to as a whole 
 to arrive at the true intention. 4 
 
 It took several years, however, to work out the con- 
 sequences of Cox v. Hickman? For some time they were 
 still imperfectly understood, even by some of the noble 
 and learned persons who had taken part in the decision. 
 
 1 Se? the authorities epitomized, Liudley, 50 — 54. 
 " P. 12, ahove. 
 
 3 Mollwo, March & Co. v. Court of Wards (1872) L. R. 4 P. C. 419, 
 435. 
 
 4 Badeley v. Consolidated Bank (1888) 38 Ch. Div. 238, 57 L. J. Ch. 
 468 ; Davis v. Davis [1894] 1 Ch. 393, 399, 63 L. J. Ch. 219. 
 
 P. C 
 
18 PARTNERSHIP ACT, 1890. 
 
 Part I. Various attempts were made by private persons to procure 
 Sect. 2. Parliament to pass Bills for authorizing limited partner- 
 ships such as have long been allowed in the United States, 
 after the pattern of the Continental societe en commandite. 
 These attempts were so far effectual as to lead to the 
 Ministry of the day framing and passing, in 1865, an Act, 
 sometimes cited as Bovill's Act, 1 which was then supposed 
 by every one concerned to make a material change in the 
 law, but really added little or nothing to the effect of Cox 
 v. Hickman. The provisions of this Act, repealed and 
 re-enacted by the principal Act, are exhibited in the 
 sub-section now before us in their proper connexion, as 
 rules for particular cases under a more general rule, which 
 are of special practical importance, but which do not 
 prevent or limit the application of the general rule to 
 other analogous cases. On the other hand, the Act is not 
 intended to protect, and will not protect, persons who 
 attempt to combine the powers of a partner with the 
 immunities of a creditor by means of nominal loans. 
 There must be not only an advance of money to the 
 business, but a loan to a real debtor who is personally 
 liable. 3 
 
 The proviso at the end of clause (d) is more explicit 
 than the corresponding words in Bovill's Act. 3 
 
 " Prima It is to be regretted that the learning and scholarship of 
 
 facie." 
 
 both Houses of Parliament has not been able to devise a 
 
 better English equivalent for the barbarous "prima facie," 
 which, though common and convenient in everyday profes- 
 sional usage, is hardly becoming in an Act of Parliament, 
 
 1 28 & 2il Vict, o, 86. 
 
 2 See illustrations 7, 8, 9, above. 
 
 ;l As to which see Si/crx v. Sims (1876) 1 App. Ca. 174 ; Pooley v. 
 I hirer (1876) 5 Oh. D. at p. 468. 
 
BIGHTS OF PERSON LENDING, ETC. IN INSOLVENCY. 19 
 
 and, not being a term of art known to the law, is capable Part I. 
 of leading to ambiguity. 1 Sect. 3. 
 
 3. In the event of any person to whom Postponement 
 money has been advanced by way of loan person lend- 
 upon such a contract as is mentioned in the L considera- 
 
 i . n - , • r. -, j. tion of share 
 
 last toregomg section, or of any buyer of a f profits in 
 goodwill in consideration of a share of the °ency £mso1 " 
 profits of the business, being adjudged a bank- 
 rupt, entering into an agreement to pay his 
 creditors less than twenty shillings in the 
 pound, or dying in insolvent circumstances, 
 the lender of the loan 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 share of 
 profits contracted for, until the claims of the 
 other creditors of the borrower or buyer for 
 valuable consideration in money or money's 
 worth have been satisfied. 
 
 This section corresponds to sect. 5 of Bovill's Act, and the 
 decisions on that section will still be applicable. 
 
 The creditor who has lent money in consideration of a Exclusion of 
 
 share of profits is excluded absolutely and according to ?™ profits ™~ 
 
 the literal terms of the Act from competing with other from compe- 
 
 r ° tition with 
 
 creditors. It does not matter whether they were or were others is 
 
 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 
 
 1 See Davis v. Davis, note *, p. 17, above. 
 
 G 2 
 
20 PARTNERSHIP ACT, 1890. 
 
 Part I. all the other creditors are paid. 1 But if, during the same 
 Sect. 3. ^ time, he has lent other sums at a fixed rate of interest, he 
 may recover those sums like any other creditor. 2 A con- 
 tinuation of what is substantially the same advance with 
 a variation of terms will not exclude the operation of this 
 enactment. 3 If it were sought to evade this prohibition 
 and make the 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. 4 The operation of this section 
 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. 5 
 
 This express postponement of the creditor receiving a 
 share of profits has the effect of putting him approximately 
 in the position of a true limited partner, or commanditaire 
 iu the French terminology. For some reason which I 
 have never been able to understand, people in this country 
 seem to find almost invincible difficulty 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. 
 
 1 Ex parte Taylor, In re Grown (1879) 12 Ch. Div. 366, 379; 
 followed in In re Mason, note i , below. 
 
 " E,c parte Mills (18731 L. B. 8 Ch. 569. 
 
 3 Re Hildesheim [1893] 2 Q. B. 357 (on BoviU's Act). So where on 
 dissolution of a partnership a loan was continued on the same terms 
 to one partner who took over the business, and he afterwards became 
 bankrupt, the lender was postponed : In re Mason, E.x parte Bing 
 [1899] 1 Q. B. S10, t>8 L. .1. Q. B. 460. 
 
 •' E,r V arte Mills (1873) L. B. 8 Ch. at pp. ;>74-6. 
 
 " /.'(■ Stone (1S8U) 33 Ch. 1). 541, 55 L. J. Oh. 795. 
 
MEANING OF FIRM. 21 
 
 It is to be observed that this section " does not deprive Parti, 
 the lender of any security he may take for his money;" sect. 4. 
 if he has taken a mortgage, for instance, his rights as 
 mortgagee are not affected, 1 and he may enforce any such 
 security by way of foreclosure or sale. 3 
 
 4. — (1.) Persons who have entered into Meaning of 
 partnership with one another are for the 
 purposes of this Act called collectively a firm, 3 
 and the name under which their business is 
 carried on is called the firm-name. 
 
 (2.) In Scotland a firm is a legal person 
 distinct from the partners of whom it is 
 composed, but an individual partner may be 
 charged on a decree or diligence directed 
 against the firm, and on payment of the debts 
 is entitled to relief pro rata from the firm and 
 its other members. 
 
 The law of England knows nothing of the firm as a Firm not 
 body or artificial person distinct from the members com- ^artificial 
 posing it, though the firm is so treated by the universal P ers ° n j? 
 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 : 4 and 
 
 1 Linclley, 59 ; Ex parte Shell (1877) 4 Oh. Div. 789, 46 L. J. Bky. 
 62. 
 
 2 Badeley v. Consolidated Bank (1888) 38 Ch. Div. 239, 57 L. J. Ch. 
 468 (affirming on this point the decision below, 34 Oh. D. 536). 
 
 3 Op. I. C. A. s. 239. 
 
 4 Lindley, 120. 
 
22 
 
 PAHTNERKHIP ACT, 1890. 
 
 Part I. 
 Sect. 4. 
 
 Otherwise in 
 Scotland. 
 
 What use of 
 names is 
 lawful. 
 
 under the Rules of the Supreme Court actions may now 
 be brought by and against partners in the name of their 
 firm. 1 An action between a partner and the firm, or 
 between two firms having a common member, was impos- 
 sible at common law, and until 1891 it remained open 
 to doubt whether such actions were possible since the 
 Judicature Acts ; but they are now expressly authorized 
 by the Rules of Court. 2 Nevertheless, the general doctrine 
 that "there is no such thing as a firm known to the law" 3 
 remains in force. In Scotland, on the other hand, the 
 firm is, and has long been, a " separate person"; not only 
 can it 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 
 apart from any statutory authority. 4 
 
 The rules governing the use of firm or trade names 
 obviously belong, properly speaking, not to the law of 
 partnership, but to that sub-division of the general law 
 of property which has to do with copyright and other 
 analogous rights. Still it is thought that some short 
 remarks upon them may be useful in this place. 
 
 Generally speaking, every man is by the law of England 
 free to call himself by what name he chooses, or by 
 different names for different purposes, 6 so long as he does 
 
 1 Order XLVIIIa. r. 1, &e. See Part II., below, p. 135. 
 
 2 Order XLVIIIa. r. 10. 
 
 8 James, L.J., Kcparte Gorbett (18S0) 14 Ch. Div. at p. 126. 
 
 4 Bell, Pr. ill' Law of Scotland, § 3C>7 ; Second Report of the Mer- 
 cantile Law Commission, 18, 141. Where the Ami-name is merely 
 descriptive and impersonal, however, as " The Carron Iron 
 Company," some of the members must be joined by name in the 
 action. 
 
 6 See the note in 3 Daw t'onv. pt. i. 357—362 ; Davie* v. Loimdes 
 (1835) 1 Bing. N. C. 5H7, 618. Strictly speaking, this does not apply 
 to names of baptism. The same or greater freedom existed in the 
 
MEANING OF FIRM. 23 
 
 not use this liberty as the means of fraud or of interfering Part I, 
 with other substantive rights of his fellow-citizens. And Sect. 4. 
 this extends to commercial transactions as well as to the 
 other affairs of life : " Individuals may carry on business 
 under any name and style they may choose to adopt." 1 
 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 
 prevented from carrying on any lawful business in his own 
 name by the mere fact of his name and business being 
 like another's, 3 yet the mere fact of the name itself being 
 his own does not give him any right or licence to do so 
 with such additions or in such a manner as to deceive the 
 public, and make them believe they are dealing with some 
 one else. 3 
 
 It is said to be an offence against the prerogative of the Assumption 
 Crown for private persons to " assume to act as a corpora- nam J p 
 tion." But it is by no means clear how it can be punished 
 (though possibly the Queen's Bench Division may have 
 jurisdiction to punish it by fine). 4. And at all events the 
 
 Roman law, which allowed a change of nomen, prcenornen, or cognomen 
 alike. C. 9, 25, de mutat. nom. 1. 
 
 1 Per Erie, O.J., Maughan v. Sharpe (1864) 17 C. B. N. S. at 
 p. 462, 34 L. J. C. P. 19 ; and see remarks of Jessel, M.R., in 
 Merchant Banking Go. of London v. Merchants Joint Stock Bank 
 (1878) 9 Ch. D. 560 ; Levy v. Walker (1879) 10 Ch. Div. 436, 445. 
 
 2 Burgess v. Burgess (1853) 3 D. M. G. 896 ; Turton v. Turton 
 (1889) 42 Ch. Div. 128, 58 L. J. Ch. 677 ; Saunders v. Sun Life 
 Assurance Co. of Canada [1894] 1 Ch. 537, 63 L. J. Ch 247. 
 
 3 Holloway v. Holloicay (1850) 13 Beav. 209 ; Massam v. Thorley's 
 Cattle Food Co. (1880) 14 Ch. Div. 748 ; Tussaud v. Tussaud (1890) 
 44 Ch. D 678, 59 L. J. Ch. 631 ; F. Pinet &■ Cie. v. Maison Louis 
 Pinet [1898] 1 Ch. 179, see per North, J., at p. 181. 
 
 4 The attempt to establish a guild or " communa " without war- 
 rant was formerly punishable by fine. Madox, Hist. Ex. i. 562, 
 
'24 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 4. 
 
 Foreign laws 
 as to trade 
 names. 
 
 Exclusive 
 right to trade 
 names analo- 
 gous to pro- 
 perty in trade 
 mark. 
 
 use of a description such as " Company," which by 
 common usage is applicable to incorporated and unincor- 
 porated associations alike, does not amount to the offence 
 in question. 1 
 
 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 (raison sociale) must contain no 
 other names than those of actual partners. 3 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 ; 3 but when the 
 name of the firm is once established in conformity with 
 these rules, it may be continued notwithstanding an assign- 
 ment 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 
 absolute right of a person to a particular name to the 
 extent of entitling him to prevent the assumption of that 
 name by a stranger," yet " the right to the exclusive use 
 of a name in connexion with a trade or business is familiar 
 
 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 towns- 
 men of Gloucester, were amerced in considerable sums on this 
 account. See Stubbs, Const. Hist. i. 418. It can be hardly be said, 
 however, that these bodies " assumed to act as corporations " in the 
 modern technical sense. 
 
 1 Lindley, 101. Every European place of business is called com- 
 pany by illiterate natives in the Presidency towns of India. 
 
 2 Code de Commerce, 21. For the French law as to the use of 
 family names generally, see Du Boulai/ v. Du Boulay (1869) L. R 2 
 P. 0. 430. 
 
 J Handelsgesetzbuch, 17. 
 1 Handidsgesetzbuch, 2:5, 2J. 
 
MEANING OF FIRM. 25 
 
 to our law." 1 This right is analogous to, but not identical Parti, 
 with, the right to a trade mark proper. The right of the Sect. 4. 
 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 to 
 prevent competitors from trading on his reputation, and 
 passing off tbeir 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 
 proceed 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, tbat some other person 
 should assume the same name, or the s .me 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 
 
 " „ infringed by 
 
 circuitously by means of a trade mark or description fitted means of 
 
 ,."_. , . , t , ■ trade marks 
 
 to bring goods into the market under a deceptive name. apart from 
 In such a case the first appropriator of the name has his ^"g"^, 
 remedy no less than if the name bad been directly adopted as such. 
 by his rival, and it is no answer to his complaint to say 
 that there is no such physical 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 office as a visible 
 
 1 Da, Boulay v. Du Boulay (1869) L. E. 2 P. C. 430, 441. 
 
 2 Giffard, L.J., in Lee v. Haley (1869) L. R. 5 Ch. at p. 161, 39 
 L. J. Ch. 284. The same principle has been acted on by the Courls 
 
 •of Fiance: Sirey, Codes Annotes, >on Code de Commerce, 18, 19, 
 no. 46 of note. 
 
2(5 
 
 1'AIITNERXIIIP ACT, 1890. 
 
 Part I. 
 Sect. 4. 
 
 Whether 
 action lies 
 against cor- 
 poration for 
 trading in its 
 corporate 
 name, where 
 the name 
 itself is an 
 infringement 
 of existing 
 trade name. 
 
 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. 1 And (on the principle that 
 a man is not allowed to ignore the natural consequences of 
 his acts) it is immaterial whether there be any fraudulent 
 intention or not. 3 
 
 Where a name of incorporation is such us to be, if used 
 for trading purposes, an infringement of an existing trade 
 name, it is doubtful whether an action can be maintained 
 against the corporation for trading in its corporate name, 
 or whether the only remedy is not against those persons 
 individually who procured that name to be given. 3 But 
 such an action, it is submitted, may well lie. For though 
 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 interfering with 
 
 1 Seixo v. Provezende (1865) L. E. 1 Oh. 192. The leading autho- 
 rities on this and the allied subjects of trade marks are collected in 
 Cope v. Evans (1874) L. B. 18 Eq. 138 ; see too the explanations and 
 distinctions given in {finger Manufacturing Co.y. Wilson (1876) 2Ch. 
 Div. at pp. 441 seq., by Jessel, M.E., and S. C. in C. A. ib. 451 seq. ; 
 and further, on the subject generally, per Lord Blackburn, Singer 
 Manufacturing Co. v. Loog (18&?1 S App. Ca. 15, -29, 52 L. J. Ch. 
 481. Our Courts have often had i;reat difficulty in drawing the line 
 between legitimate protection ot one's business identity, if one may 
 so speak, and attempts to monopolize elements of commercial value 
 at the expense of other traders no less entitled to make use of them. 
 See Eno v. Dunn (1890) 15 App. Cn. 252 ; Montgomery v. Thompson 
 [1891] A. 0. 217, 60 L. J. Ch. 757. The literal correctness of a 
 description is not enough to justify its use if it is in fact deceptive : 
 Ji'eMainiyv. Bavliam [1896] A. C. 199, 65 L. J. Q. B. 381. 
 
 - Heiuli-ik* v. Mmitugu (1881) 17 Ch. Div. 638, 651. 50 L. J. Ch. 
 
 188. 
 
 Lanvoii v. lunik of London (1856) 18 V. 11. N. S. 84, 25 J,. J. C. P. 
 
POWER OF PARTNER TO BIND THE FIRM. 27 
 
 other persons' rights, that is its misfortune, but can surely Part I. 
 make no difference to their rights. 1 Sect. 5. 
 
 There can be no trade name unless in connexion with $° tlade 
 
 .... , . name with- 
 
 an existing business. A man cannot appropriate a name out actual 
 for this purpose by the mere announcement of his intention busmess - 
 to trade under it. 2 
 
 Relations of Partners to Persons dealing with them. 
 
 5. Every partner is an agent of the firm Power of 
 and his other partners for the purpose of the wndthe firm, 
 business of the partnership; and the acts of 
 every partner who does any act for carrying 
 on in the usual way business of the kind carried 
 on by the firm for which he is a member bind 
 the firm and his partners, unless the partner so 
 acting has in fact no authority to act for the 
 firm in the particular matter, and the person 
 with whom he is dealing either knows that he 
 has 3 no authority, or does not know or believe 
 him to be a partner. 
 
 " Generally speaking, a partner has full authority to deal 
 with the partnership property for partnership purposes." 4 
 
 " 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 
 
 1 See Hendriks v. Montagu (1881) 17 Ch. Div. at p. 647. 
 
 2 Lawson v. Bank of London, note J , Jast page. 
 
 3 Cp. I. C. A. 251. 
 
 4 Lord Westbnry in Ex parte Burlington, d-c. Banking Co. (1864) 
 4D. J. S. 581, 585. 
 
28 PARTNERSHIP ACT, 1890. 
 
 Part I. agent of every other in every matter connected with the 
 
 Sect. 5. partnership business, or which he represents as partnership 
 
 business, and not being in its nature beyond the scope of 
 
 the partnership." 1 
 
 Except where The exception in the event of the partner having no 
 
 he has neither au thority, and also not appearing to the other party to 
 
 real authority, have it (or even being known not to have it, in which 
 
 case no difficulty can be felt), is not established by any 
 
 direct decision. But it was said in a modern case by 
 
 Cleasby, B., that partnership does not always, and 
 
 especially does not in these circumstances, 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 manage- 
 ment ; 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 ordinary 
 case this would not be so, and he would not in the slightest 
 degree be in the position of an agent for them." 2 
 What kind ot The acts of a partner done in the name of a firm will 
 
 acts in general , , . , , „ 
 
 bind the firm. not bmcl tne nl " m merely because they are convenient, or 
 
 1 James, L.J., in Baud's Case (1870) L. K. 5 Ch. at p. 733. 
 
 2 Oleasby, R, in Holm, v. Hammond (1872) L. R. 7 Ex. at p. 233. 
 In a case not involving partnership, an undisclosed principal was 
 held liable lor acts done by his agent without either real or apparent 
 authority : Wattmu v. Feiuricl: [1893] 1 Q. B. 346, sed qu. See 
 Lindley, 134, nolo (<•) ; L. Q. R. ix. 111. 
 
29 
 
 POWER OF PARTNER TO BIND THE FIRM. 
 
 prudent, or even necessary for the particular occasion. Part I. 
 The question is, what is necessary for the usual conduct Sect. 5. 
 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." 1 
 
 Whether a particular act is " done in carrying on a 
 business in the way in which it is usually carried on " is a 
 question to " be determined by the nature of the business, 
 and by the practice of persons engaged in it." l 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 under- 
 stood usages extending to all trading partnerships, 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 instruments, borrow money, 
 and so following, in the ordinary course of affairs, that the 
 existence or validity of the usage is no longer a question 
 of fact. But there is no authoritative 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. 
 
 It seems however that, subject to the limitations which implied 
 will appear, every partner may bind the firm by any of the partner/in 
 
 following acts : trade as to 
 
 ° certain trans- 
 
 a. He may sell any goods or personal chattels of the 
 firm. 
 
 1 Lindley, 135. 
 
30 PARTNERSHIP ACT, 1890. 
 
 Part I. b. He may purchase on account of the firm any goods 
 
 Sect. 5. 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 partnership business. 
 
 And it seems that if the partnership is in trade, every 
 partner 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. 1 
 /. 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 by Story in a passage which has been adopted 
 by the Judicial Committee of the Privy Council r — 
 
 " 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 propositus negotiis socictatis, 
 
 1 Cp. the Bills of Exchange Act, 1882, s. 23, and Chalmers' Digest 
 of the Law of Bills of Exchange, 5th eil., p. 65 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. Beatson 
 (1880) 5 V. P. Div. 109, 121, 49 L. J. C. P. 380. 
 
 2 Story on Agency, § 124; Bank of Australasia v. Breillat (1847) 
 <i Moo. P. O. at p. 193. 
 
POWER OF PARTNER TO BIND THE FIRM. 31 
 
 and may consequently bind all the other partners by his Part I. 
 acts in all matters which are within the scope and objects Sect. 5. 
 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 
 procure to 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 Lindley (Partnership, 140 — 157). A certain 
 number of the leading heads may here be selected by way 
 of illustration. The distinction between the powers of 
 partners in trading and non-trading firms is perhaps not 
 quite clear on the authorities ; and Story, as we have just 
 seen, did not venture on anything more definite than " a 
 general commercial nature " to explain what the difference 
 between a trading and a non-trading business was ; but it 
 is believed that the existing practice and understanding 
 are correctly represented by the statement in the text. 
 
 Authority to bind, the Firm implied. 
 
 The power of binding the firm by negotiable instruments Negotiable 
 is one of the most frequent and important. 
 
 In trading partnerships every partner has this power 
 unless specially restrained by agreement. 1 In the case of a 
 
 1 Lindley, 141 ; Bank of Australasia v. Breillat (1847) 6 Moo. P. C. 
 at p. 194; Ex parte Darlington, &c. Banking Company (1864) 4 
 1). J. S. at p. 585. Brokers and commission agents" are not traders 
 
32 PAIITNEBHMIP ACT, 1890. 
 
 Part I. non-trading partnership those who seek to hold the firm 
 
 Sect. 5. bound must prove that such a course of dealing is necessary 
 
 Exception as or usual in the particular business. In the case, again, of 
 
 to directors of ... , . ,, ,i , 
 
 numerous an association too numerous to act in the way mat an 
 associations, ordinary partnership does," 1 whose affairs are under the 
 exclusive management of a small number of its members — 
 in other words, an unincorporated company — the presump- 
 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 
 cases, 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 managing 
 members have no more than has been conferred on them 
 expressly or by necessary implication in the constitution of 
 the particular society. 2 But since the Companies 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 
 aim and policy of the Act, it might be urged, was to leave 
 no middle term between an ordinary partnership and a 
 
 within the meaning of this rule : Yates v. Dalton (1858) 28 L. J. 
 Kx, 69. 
 
 1 3 I). M. (}. 477 (1854). 
 
 » Did-iiiMw v. Valpn (1829) 10 B. & C. 128, 34 E. E. 348; 
 Principle? of Contract, fith ed., 125. 
 
POWER OF PARTNER TO BIND THE FIRM. 33 
 
 company regularly formed under the Act. In point of Part I. 
 fact, however, associations of seven or more persons who Sect. 5. 
 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 suggested is perhaps merely curious. 
 
 Every partner in a trading firm has an implied authority Borrowing 
 to borrow money for the purposes of the business on th e mo " ey - 
 credit of the firm. 1 The directors of a numerous associa- 
 tion, 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 Sale and 
 way of sale or (where he has power to borrow on the credit partnership 
 of the firm) by way of pledge, of any part of the goods or P r °perty. 
 personal property belonging to the partnership, 3 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. 4 
 
 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. 5 
 
 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. 5 
 
 A partner may buy on the credit of the firm any goods Purchase. 
 
 1 Bank of Australasia v. Breillat (1847) 6 Moo. P. C. 152, 194. 
 
 2 Burmester v. Norris (1851) 6 Ex. 796, 21 L. J. Ex. 43. 
 
 3 Lindley, 156. 
 
 4 Ex parte Bonbonus (1803) 8 Ves. 540. 
 
 5 Lindley, 149, 152. 
 
 P. I) 
 
34 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 6. 
 
 Employment 
 of solicitor 
 to defend 
 actions. 
 
 Payment to 
 i. nd release by 
 one partner. 
 
 Servants. 
 
 Deeds. 
 
 of a kind used in its business, and the firm will be bound, 
 notwithstanding any subsequent misapplication of them 
 by that partner. 1 This power extends to non-trading 
 partnerships. 3 
 
 The managing partner of a business firm has implied 
 authority to employ a solicitor to defend an action brought 
 against the firm for the price of goods supplied for its 
 business ; and the solicitor may enter appearance in the 
 name of each of the other partners, and is not bound to 
 inform them of the progress of the action. 3 
 
 Payment to one partner is a good payment to the firm, 4, 
 and by parity of reason a release by one partner binds the 
 firm, " because, as a debtor may lawfully pay his debt to 
 one of them, he ought also to be able to obtain a discharge 
 upon payment." 6 
 
 " One partner has implied authority to hire servants to 
 perform the business of the partnership," and probably also 
 to discharge them if the other partners do not object. 6 
 
 Authority to bind the Firm not implied. 
 One partner cannot bind the others by deed without 
 express authority (which must itself be under seal), 7 and 
 where the partnership articles are under seal, the fact of 
 their being so does not of itself confer any authority for 
 this purpose. 8 
 
 1 Bond v. Oihsm (1808) 1 Camp. 185, 10 R. R. 665. 
 
 2 Lindley, 154. 
 
 :1 Tomlinson v. Itroadsmith [1896] 1 Q. B. 386, 65 L. J Q B 308 
 C. A. 
 
 4 Lindley, 147. 
 
 ' Best, C.J., in Skad v. Salt (18-25) 3 Bing. at p. 103, 28 R R 603 
 604. 
 
 6 Lindley, 157. 
 
 ' Sieiylitz v. Ktftjinton (1815) Holt N. P. 141, 17 R. R, 622. 
 
 11 Harrison v. Jackson (1797) 7 T. R. 207, 4 R. R. 422. 
 
POWER OF PARTNER TO BIND THE FIRM. 35 
 
 One partner cannot bind the others by giving a guaranty Part 1. 
 in the name of the firm, even if the act is in itself a reason- Sect. 5. 
 able and convenient one for effecting the purposes of the Guaranties. 
 partnership business, unless such is the usage of that 
 particular firm, or the general usage of other firms engaged 
 in the like business •} in other words, there is no general 
 implied 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. 
 
 A partner cannot accept shares in a company, even fully Satisfaction. 
 paid up, in satisfaction of a debt due to the firm. 3 
 
 It is not competent to one member of a partnership to Submission to 
 bind the firm by a submission to arbitration. 3 
 
 6. An act or instrument relating to the Partners 
 
 . . boimrt by acts 
 
 business ot the firm and done or executed in on behalf of 
 the firm-name, or in any other manner showing 
 an intention to bind the firm, by any person 
 thereto authorised, whether a partner or not, is 
 binding on the firm and all the partners. 
 
 Provided that this section shall not affect any 
 general rule of law relating to the execution of 
 deeds or negotiable instruments. 
 
 7. Where one partner pledges the credit of Partner using 
 
 credit of firm 
 
 the firm tor a purpose apparently not connected for private 
 
 purposes. 
 
 1 Brettel v. Williams (1849) 4 Ex. 623, 19 L. J. Ex. 121. 
 
 2 Niemann v. Niemann (1889) 43 Ch. Div. 198, 59 L. J. Ch. 220. 
 
 3 Stead v. Salt (1825) 3 Bing. 101, 28 B. B. 602 ; Adams v. 
 Bankart (1835) 1 C. M. & E. 681, 40 B. B. 670. 
 
 D 2 
 
36 PARTNERSHIP ACT, IHm. 
 
 Part i. w ith the firm's ordinary course of business, the 
 
 sect. 7. £ rm j g no t bound, unless he is in fact specially 
 
 authorised by the other partners ; but this 
 
 section does not affect any personal liability 
 
 incurred by an individual partner. 
 
 Sect. 6 is too plain to need comment. The proviso 
 shows, perhaps with abundant caution, that the enacting 
 part does not dispense persons, merely because they happen 
 to be acting as partners or agents of a firm, from executing 
 formal instruments with the forms required by law. 
 
 Sect. 7 sums up the effect of long-accepted authorities, 
 and seems purposely to leave an unsettled point where 
 it was. 
 
 The passage already partly cited from Story (p. 30, 
 above) continues as follows : — 
 
 " The restrictions of this implied authority of partners 
 to bind the partnership are apparent from what has been 
 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. Xeither 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." l 
 
 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 doin"- 
 it," 3 cannot say that they were misled by his apparent 
 general authority. For his authority presumably exists 
 
 1 Story on Agency, § 125 ; Haul- of Auxtmlaria v. Breillat (1847) 
 (> Moo. P. 0. at p. 194. 
 
 - Ex ytnic Ihirlimjlon, dr. lUiuldng -Co. (1864) 4 D. J. S at 
 p. 585. 
 
USIXG CREDIT OF FIRM FOR PRIVATE PURPOSES. 37 
 
 for the benefit and for the purposes of the firm, not for Part I. 
 those of its individual members. The commonest case, Sect. 7. 
 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. 1 
 
 " 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 
 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." 3 
 
 " 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." 3 
 
 " 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 be is going 
 beyond the scope of his agency ; and express authority 
 
 1 See the cases referred to in the next note, and Heilbut v. Nevill 
 (1869-70) L. R. 4 C. P. 354, in Ex. Ch. 5 C. P. 478. 
 
 2 Smith, Merc. Law, 43 (9lh ed.), adopted by Keating and -Byles, 
 JJ., in Levieson v. Lane (1862) 13 C. JB. N. S. 278 ; 32 L. J. C. P. 
 10 ; by Lord Westbury, in Ex parte Darlington, dec. Banking Co. 
 (1864) 4 D. J. S. at p. 585 ; and by Coekburn, C.J. (subject to a 
 doubt as to the last words, see next page), in Kendal v. Wood (1871) 
 (Ex. Ch.) L. R. 6 Ex. at p. 248 ; 39 L. J. Ex. 167. 
 
 3 Bank of Australasia v. Breillat (1847) 6 Moo. P. C. at p. 196. 
 
38 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 
 Sect. 1. 
 
 Whether the 
 creditor may 
 be entitled as 
 against the 
 firm by 
 reasonable 
 belief in the 
 partner's 
 authority. 
 
 Instances of 
 the general 
 rule. 
 
 therefore is necessary from the other partner to warrant 
 that payment." 1 
 
 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. 3 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 per- 
 sonally bound on the general principle of estoppel. The 
 rule is stated with this qualification or warning by Black- 
 burn, J., and Montague Smith, J. 3 And this case appears 
 to be contemplated by the final clause of the section, which, 
 however, it will be observed, does not positively impose or 
 declare any liability. 
 
 Another special application of the rule, declared by 
 sect. 7, was made in a case where two out of three part- 
 ners gave an 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 
 
 1 Montague Smith 
 p. 253. 
 
 2 L. R. G Ex. 248, 3!) L. J. E: 
 
 3 L. 11. (i Ex. at pp. 251, 253. 
 
 ■' Mimff v. llV/fa (1800) 1 East, 48, 5 R. R. 509 ; see per Le 
 Rlanc, J. 
 
 in Knidal v. Wood (1871) L. R. 6 Ex. at 
 167. 
 
LIABILITY OF PARTNERS. 39 
 
 to the firm, the firm is not bound by this agreement, and Part 1. 
 incurs no obligation in respect of any business done in Sect. 7. 
 pursuance of it. 1 
 
 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 
 bill in the name of the firm for his own private purposes, 
 a holder who takes the bill, not knowing the indorsement 
 to 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 ; 3 but if he knows that the indorsement is in fact 
 not for a partnership purpose he cannot recover. 3 
 
 8. If it has been agreed between the part- Effect of 
 
 ners that any restriction shall be placed on the fumwiii not 
 
 power of any one or more of them to bind the acts of" y 
 
 firm, no act done in contravention of the agree- P artner ' 
 ment is binding on the firm with respect to 
 persons having notice of the agreement. 
 
 It is clear law that if partners agree between themselves Restrictive 
 
 A 2 r 66H1 6 n fc 
 
 that the apparent authority of one or more of them shall inoperative if 
 be restricted, such an agreement is inoperative against notnotl e • 
 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 bind all by contracts entered into 
 according to the usual course of business in that trade. . . . 
 
 1 Bignuld v. Waterhouse (1813) 1 M. & S. 255. 
 
 2 Lewis v. Reilly (1841) 1 Q. B. 349. 
 
 3 Garland v. Jaromb (1873) (Ex. Oh.) L. E. 8 Ex. 216. 
 
notice. 
 
 40 1'A11TNEHHHII J 'ACT, 1890. 
 
 Part I. Partners may stipulate among themselves that some one 
 Sect. 8. 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 arc actually made; but with such 
 private arrangements third persons dealing with the firm 
 without notice have no concern." 1 
 Effect of Further, there are dicta to the effect that a creditor who 
 
 deals with a partner as agent of the firm, having notice of 
 a restrictive stipulation among the partners themselves, 
 cannot hold the firm bound; 3 and this view seems to be 
 implied in the language of the present section, which copies 
 almost word for word a similar provision of the Indian 
 Contract Act (s. 251, Exception), namely: — 
 
 "If it has been agreed between 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." 
 
 If such is the effect, it is contrary to the opinion of 
 Lord Lindley, who points out that an agreement between 
 the partners that certain things shall not be done is 
 quite consistent with an intention 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 tbc firm will not answer for them. If a 
 partner tells a third person that he has ceased to be a 
 
 1 Lord Cranwoitli, in Cox, v. Hirkman (1860) 8 H. L. C. at p. 304. 
 '- Lord Cidlwaij v. Malhew (1808) 10 East, 264, 10 R. R. 289 ; 
 Alderson v. Pope (1809) 1 Camp. 404, «. 
 
LIABILITY OF PARTNER*. 41 
 
 partner, but his name is to continue in the firm for a Part I. 
 •certain time, this is not a disclaimer of responsibility, but Sect. 8. 
 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 proposition that no agree- 
 ment among partners, whether known or not to third 
 persons, can avail, to limit tbe amount of their liability 
 for the debts of the firm, is also to some extent analogous. 3 
 Perhaps it may be found possible to construe the Act in a 
 manner consistent with this. 
 
 9. Every partner in a firm is liable jointly Liability of 
 with the other partners, and in Scotland severally 
 also, for all debts and obligations of the firm 
 incurred while he is a partner ; and after his 
 death his estate is also severally liable in a due 
 course of administration for such debts and 
 obligations, so far as they remain unsatisfied, 
 but subject in England or Ireland to the prior 
 payment of his separate debts. 3 
 
 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. 4 "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 
 
 1 Brown v. Leonard (1816) 2 Chitty, 120, 23 R. R. 744. 
 
 2 Lindley, 186. 
 
 3 This section does not impose any new liability on the estates 
 •of deceased partners : Friend v. Young [1897] 2 Ch. 421, 66 L. J. Cii. 
 737. 
 
 4 See Cox v. Hiclcman (I860) 8 H. L. C. at pp. 304, 312. 
 
42 PARTNERSHIP ACT, 1S90. 
 
 Part I. consequently is liable to the performance of all such con- 
 Sect. 9. tracts in the same manner as if entered into personally 
 by himself." 1 
 
 The liability It used to be stated that by the English rule of equity 
 not joint and J b . 
 
 several. partnership debts are joint and several ; but it was decided 
 
 by the House of Lords in Kendall v. Hamilton 3 that they 
 are joint only, except as to the estate of a deceased partner. 3 
 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 which it was contracted. The law being 
 settled that a judgment recovered against some of divers 
 joint contractors is, even without satisfaction, a bar to an 
 action against another of them alone, C.'s action was 
 maintainable against D. only if D.'s liability for the lean 
 was several as well as joint. It was held that there was 
 no real authority for the supposed peculiarity of partner- 
 ship 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 case 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 
 
 1 Per Tiuckl, C.J., in Fox v. Cliftou (1S30) 6 Bins, at p 792 31 
 K. E, 544. ' 
 
 " 4 App. On. 504 (1879). 
 As to the importance of this exception, cp. Liudley, 204. 
 
LIABILITY OF PARTNERS. 43 
 
 the deceased partner's separate creditors ; secondly, the Part I. 
 surviving partner must be before the Court. 1 Sect. 9. 
 
 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 us against the principal 
 debtor, but has further distinct rights. 3 
 
 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 several 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, 3 nor does a judgment recovered against one partner 
 discharge his co-partners. 4 
 
 Judgment recovered against one partner, sued in the 
 firm-name, on bills given in the firm-name for the price of 
 goods sold, is not of itself, without satisfaction, a bar to a 
 subsequent action against the other partner for the price 
 of the goods. The causes of action are distinct, and there 
 is no warrant for extending the rule in Kendall v. Hamilton 
 to such a case. 5 The Act does not appear to affect the point. 
 
 The law of Scotland appears to be what the rule of 
 English equity was, before Kendall v. Hamilton, supposed 
 to be. So far as the result of that case is to establish a 
 difference between the laws of the two countries, for which 
 
 1 Re Hodgson, Beckett v. Ramsdale (1885) 31 Ch. Div. 177, 55 L. J. 
 Ch. 241. 
 
 - Badeleij v. Consolidated Bank (1886) 34 Ch. D. 536, 556. This 
 point was not dealt with on appeal (1888) 38 Ch. Div. 238, 57 L. J. 
 Ch. 468, as the C. A. held that there was no partnership at all. 
 
 3 Re Davison, Ex parte Chandler (1884) 13 Q. B. D. 50. 
 
 4 Blyth v. Fladgate [1891] 1 Ch. 337, 353, 60 L. J. Ch. 66. 
 
 5 Wegg-Prosser v. Evans [1895] 1 Q. B. 108, 64 L. J. Q. B. 1, 
 C. A., overruling Cambefort & Go. v. Chapman (1887) 19 Q. B. D. 229, 
 56 L. J. Q. B. 639. 
 
44 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. lu. 
 
 Liability of 
 the firm for 
 wrongs. 
 
 Misapplica- 
 tion of 
 money or 
 property 
 received for 
 or in custody 
 of the firm. 
 
 Liability for 
 wrongs joint 
 and several. 
 
 there seems to be no rational ground in any difference of 
 mercantile usage, it is perhaps to be regretted. 
 
 10. Where, by any wrongful act or omission 
 of any partner acting in the ordinary course of 
 the business of the firm, or with the authority 
 of his co-partners, loss or injury is caused to 
 any person not being a partner in the firm, or 
 any penalty is incurred, the firm is liable there- 
 for to the same extent as the partner so acting 
 or omitting to act. 
 
 11. In the following cases ; namely — 
 
 («.) Where one partner acting within the 
 scope of his apparent authority receives the 
 money or property of a third person and 
 misapplies it j 1 and 
 
 (b.) Where a firm in the course of its business 
 receives money or property of a third 
 person, and the money or property so 
 received is misapplied by one or more of 
 the partners while it is in the custody of 
 the firm ; 1 
 the firm is liable to make good the loss. 
 
 12. Every partner is liable jointly with his 
 co-partners and also severally 2 for everything 
 
 1 Note the different wording of these clauses. Under clause (o) 
 the receipt and misapplication of the money, &c, must be by the 
 same partner. Under clause (6), the firm, having once become 
 responsible, is liable for misapplication by any of its members. 
 See Bin Ir v. BnmU'ij (1847) -2 Ph. '354; St. Aubyn v. Smart (1868) 
 L. It. 3 Oh. t>4li ; and Plumerx. Gregory (1874) L. E. 18 Eq. '621, 627. 
 
 " Planter v. Gregory, last note. 
 
LIABILITY OF PARTNERS FOR WRONGS. 45 
 
 for which the firm while he is a partner therein Part i. 
 becomes liable under either of the two last Sect ' 12 - 
 preceding sections. 
 
 Illustrations. 
 
 1. A., B. and C. are partners in a bank, C. taking no active 
 part in the business. D., a customer of the bank, deposits 
 securities with the firm for safe custody, and these securities 
 are sold by A. and B. without D.'s authority. The value of 
 the securities is a partnership debt for which the firm is liable 
 to D. ; and 0. or his estate is liable whether he knew of the 
 sale or not. 1 
 
 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 
 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 
 
 3. If, the other facts being as in the last illustration, Chad 
 given the money to A. with general directions to invest it 
 for him, B. would not be liable, since it is no part of the 
 ordinary business of solicitors to receive money to be invested 
 at their discretion. 8 
 
 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. hauls over £1,700 to W. on his 
 
 1 Devaynes v. Noble, Clayton's Case (1816) 1 Mer. at pp. 572, 579, 
 15 B, B. 161. 
 
 2 Blair v. Bromley (1847) 2 Ph. 354. Cases of this kind do not 
 depend on the law relating to trusts, and are therefore not within 
 s. 8 of the Trustee Act, 1888 (as to the Statute of Limitations). Qn. 
 whether, supposing that section applicable, they would not be 
 within the exceptions : Moore v. Knight [1891] 1 Ch. 547, 60 L. J. 
 Ch. 271. 
 
 " Harman v. Johnson (1853) 2 E. & B. 61, 22 L. J. Q. B. 297. 
 
46 
 
 Sect. 12. 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 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 owu 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.! 
 
 .">. 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 
 passed through the account of the firm, B. would probably 
 be liable. 3 
 
 G. A., one of the partners in a banking firm, advises B., a 
 customer, to sell certain securities of B.'s which 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. 3 
 
 7. A customer of a banking firm buys stock through the 
 agency of the firm, which is transferred to A., one of the 
 
 1 Plumer v. Gregory (1874) L. R. 18 Eq. 621. 
 
 " Situs v. Brutton (1850) 5 Ex. 802, -20 L. J. Exeli. 41, as corrected 
 by Lord Lindley's criticism, Lindley, 173, ep. Cleather v. Twisden 
 (1883) 28 Ch. Div. 340, 54 L. J. Ch. 408 ; Cooper v. Prichard (1883) 
 11 Q, B. Div. 351, 52 L. J. Q. B. 520; Rhodes \. Monies [1895] 
 1 Ob. 236, 64 L. J. Ch. 122, C. A., where the securities mis- 
 appropriated by one partner were of a class habitually held by 
 the firm for their clients, and the firm was therefore liable. 
 
 ' 1 liixhop v. Countess of Jersey (1854) 2 Drew. 143. 
 
LIABILITY OF PARTNERS FOR WRONGS. 47 
 
 partners, in pursuance of an arrangement between the partners, Part I. 
 and with, the customer's knowledge and assent, but not at his sect. 12. 
 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. 1 
 
 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 partner alone 
 and not as agent of the firm. 2 
 
 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 of 
 England. The proceeds of the 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 within the scope of the firm's business to sell stock for its 
 customers, and to receive the proceeds of the sale, and the sale 
 took place and the money was received in the usual way [and 
 because they might by the use of ordinary diligence have known 
 of the payment and from what source it came]. 3 
 
 1 Devaynes v. Noble, Baring's Case (1816) 1 Mer. at pp. 611, 614, 15 
 R. R. 169. 
 
 2 Ex parte Eyre (1842) 1 Ph. 227 ; cp. the remark of James, V.-C, 
 L. R. 7 Eq. 516 (1869). 
 
 3 Marsh v. Keating (1834) 2 CI. & F. 250, 289, 37 R. R. 75, 106 ; 
 cp. Lord Lindley's comments, Lindley, 171, and 176, note (p). 
 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 ; they were liable because money representing their 
 customer's property had come, in an. apparently regular course, 
 
48 PARTNERSHIP ACT, 1890. 
 
 Part I, 10. W. and J. are solicitors in partnership. A., B. and C, 
 
 Sect. 12. 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. TV. 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 a solicitor but as a trustee, 
 and the breach of duty did not happen while the money was 
 in the hands of the firm. 1 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. 2 
 
 Ground of The general principle on which the firm is held to be 
 
 liability. . 
 
 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 in the ordinary course of its business obtained posses- 
 sion of the property of other people, and has then parted 
 with it without their authority;" 3 or the analogy to other 
 cases where the act of one partner binds the firm may be 
 brought out by saying that the firm is to make compensation 
 
 though in truth by wrong, into the custody of the firm ; but the 
 point is treated as material in the opinion of the judges. The trutli 
 is that the rule as above given, by which the ordinary course of 
 business is the primary test of the firm's liability, was developed 
 only by later decisions. 
 
 1 Coonurv. Bromley (1852) 5 De G. & Sin. 5.32 ; and see a fuller 
 account of the case in Lindley, 174, 175. 
 
 " Gkather v. TwMm (1883) 28 Ch. Div. 340, 54 L. J. Ch. 408, 
 where the 0. A., agreeing with the Court below as to the law, held 
 that, the facts did not come up to this. ('p. Rhfth v. Fhdqnte, [J 8911 
 1 Ch. 337, 60 L. J. Ch. 66 ; Rhodes v. M,wl c * [18.95] 1 Ch. 236,64 
 L. J. Ch. 122, C. A. At all events, it is not within the scope of a 
 solicitor's implied authority in partnership matters to impose liability 
 on his partner by making himself a constructive trustee : Mara v 
 Jliwme [189(1] 1 Ch. 199, 65 L. J. Ch. 225, C. A. 
 
 3 Lindley, 170. 
 
LIABILITY OF PARTNERS FOR WRONGS. 49 
 
 for the wrong of the defaulting partner, because the other Part 1. 
 members " held him out to the world as a person for whom sect. 12. 
 they were responsible." x 
 
 The rules laid down in sects. 10 and 11 arc really Oeneraltest 
 derived from the wider rule to the same effect which is o"a P gency Ple 
 one of the 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 unauthorized 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 suffi- 
 ciently correct ; but a more exact statement of the rule 
 would be that the principal is not liable if the agent goes 
 out of his way to commit a wrong, whether with a wrong- 
 ful 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 interest in the matter in 
 hand ; 3 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 : 3 on 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. 4 
 
 1 Per James, V.-C, in Earl of Dundonald v. Maslerman (1869) 
 L. R. 7 Eq. at p. 517, 58 L. J. Ch. 350. 
 
 2 Limpus v. General Omnibus Go. (Ei. Ch. 1862) 1 H. & C. 526. 
 
 3 Baijley v. Manchester, &c. Railway Go. (Ex. Ch. 1873) L. E. 8 
 C. P. 148, 42 L. J. 0. P. 78. 
 
 4 Poulton v. L. & S. W. R. Co. (1867) L. R. 2 Q. B. 534, 36 L. J. 
 
 P. B 
 
50 PARTNERSHIP ACT, 1890. 
 
 Part I. It is by no means easy to assign the true ground of an 
 
 Sect. 12. 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 with reasonable care for 
 the safety of other people, analogous to the duty imposed 
 on owners of real property to keep it in a safe condition 
 as regards persons lawfully passing on the highway, or 
 coming on the property itself by the owner's invitation. 
 This view, which I have endeavoured to develop more 
 fully in my work on the law of Torts, has more distinct 
 countenance from both English and American authority 
 than might be expected. But the subject is too large to 
 dwell upon here. 
 Special oases Cases to which it has been sought, with or without 
 tion of client's success, to apply the principle stated in sect. 11 have 
 partner 7 °" e g enera Uy arisen in the following manner. Some client of 
 a firm of solicitors or bankers, 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 
 the money has been misapplied by the particular partner 
 in question. When it is sought to charge the firm with 
 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 
 
 Q. B. 204 ; Allen v. L. <('• S. W. R. Co. (1870) L. R. 6 Q. B. 65, 40 
 L. J. Q. B. 55 ; Bolingbroke v. Sirindmi Local Board (1874) L. B. 9 
 C. P. 575, 43 L. J. C. P. 575. 
 
LIABILITY OF PARTNERS FOR WRONGS. 51 
 
 farther comments of a general kind how these questions Part I. 
 are dealt with in practice. Sect. 12. 
 
 In one recent case, where the facts were of a special and 
 complicated kind, the wrong consisted in a negligent 
 investment of trust funds on improper security, made 
 under the professional advice of one member of a firm of 
 solicitors while the trust fund was in the hands of the firm. 
 The result was that his partners were deemed to have 
 notice of the improper character of the investment, and 
 were answerable for the breach of trust as well as 
 himself. 1 
 
 In another very peculiar case one solicitor used the 
 name of another firm without authority to get money out 
 of Court, which he proceeded to misapply. He then told 
 a member of the firm he had used their name, but led him 
 to suppose that it was a merely formal matter. In that 
 belief that member of the innocent firm accepted a relatively 
 small sum for costs, of which part was returned for out 
 of pocket expenses, and the rest went to the firm's credit, 
 the other partner not knowing the circumstances of the 
 payment. The firm was held liable only for this last- 
 mentioned residue, and the partner who acted only for the 
 amount paid to him. 3 
 
 It will be observed that in some of these cases the 
 action of the Court may be referred to its summary 
 jurisdiction over solicitors as its own officers, subject to 
 this caution, that it will not hold the solicitor liable 
 beyond the loss actually occasioned by his neglect or 
 breach of duty. 3 
 
 1 Blyth v. Fladgate [1891] 1 Ch. 337, 60 L. J. Ch. 66. 
 
 2 Marsh v. Joseph [1897] 1 Ch. 213, 66 L. J. Cb. 128, C. A. 
 
 3 [1897] 1 Ch. at p. 245. 
 
 e2 
 
52 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 13. 
 
 Improper 
 employment 
 of trust-pro- 
 perty for 
 partnership 
 purposes. 
 
 Liability of 
 partners for 
 breach of 
 trust by one 
 not really a 
 partnership 
 liability. 
 
 13. If a partner, being a trustee, improperly 
 employs trust-property in the business or on 
 the account of the partnership, no other partner 
 is liable for the trust-property to the persons 
 beneficially interested therein : 
 Provided as follows : — 
 
 (1.) This section shall not affect any liability 
 incurred by any partner by reason of his 
 having notice of a breach of trust ; 1 and 
 (2.) Nothing in this section shall prevent trust 
 money from being followed and recovered 
 from the firm if still in its possession or 
 under its control. 
 
 This section may be considered as inserted here for 
 convenience. It does not properly belong to the law 
 of partnership. For only such persons can be liable for 
 a breach of trust as are personally implicated in it by their 
 own knowledge or culpable ignorance, besides the active 
 defaulter or defaulters. Hence it could never be correctly 
 supposed that a firm as such is liable merely because a 
 breach of trust has been committed by one of its members, 
 or that the individual partners are liable as partners. They 
 are only joint wroug-doers to whom the fact of their being 
 in partnership has furnished an occasion of wrong-doing. 
 The case is not really analogous to that of money being 
 received in a usual course on the credit of the partnership 
 and misapplied : 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 with the 
 business, and crediting the firm with the money taken 
 
 ■o Blyth v. Fladyatc, note 1 , p. 51, above. 
 
IMPROPER EMPLOYMENT OF TRUtiT PROPERTY. 53 
 
 from him. Here it is obvious that the relation of partner- Part I. 
 ship is not a material element in the resulting liability. Sect. 13. 
 Something will be said in another place, however, of 
 a special kind of claims against partners as trustees or 
 executors of a deceased partner which have often raised 
 difficult and complicated questions. 
 
 Compare the Indian Trusts Act, 1882, s. 67 : " If a 
 partner, being a trustee, wrongfully employs trust-property 
 in the business or on account of the partnership, no other 
 partner is liable therefor in his 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 
 negligence, he would have known it, or when information 
 of the fact is given to or obtained by his agent under the 
 circumstances mentioned in the Indian Contract Act, 1872, 
 s. 229 " {i.e., in the course of the business transacted by 
 him for the principal). 
 
 14. (1-) Every One Who by WOrds Spoken Persons liable 
 
 or written or by conduct represents himself, or out." 
 who knowingly suffers himself to be represented, 
 as a partner in a particular firm, is liable as a 
 partner to any one who has on the faith of any 
 such representation given credit to the firm, 
 whether the representation has or has not been 
 made or communicated to the person so giving 
 credit by or with the knowledge of the apparent 
 partner making the representation or suffering 
 it to be made. 1 
 
 1 Cp. I. C. A. 245, 246. 
 
54 PARTNERSHIP ACT, 1890. 
 
 fart i. (2.) Provided that where after a partner's 
 
 sect. 14. death the partnership business is continued in 
 
 the old firm-name, the continued use of that 
 name or of the deceased partner's name as part 
 thereof shall not of itself make his executors or 
 administrators estate or effects liable for any 
 partnership debts contracted after his death. 
 This rule a " Where a man holds himself out as a partner, or allows 
 
 branch o£ . . , 
 
 estoppel. 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 
 so acting may be rightly held liable as a partner by 
 estoppel." 1 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 
 existence of a particular state of facts, he cannot be heard, 
 as against that other, to deny the truth of those facts. 3 It 
 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 still lent for the very purpose 
 of obtaining credit for the firm on the faith of his being 
 
 1 Per Cur., Molliro, March <C- Co. v. Court of Wards (1872) L. R. 4 
 P. C. at p. 435. 
 
 2 For fuller and more exait statements, see Corr v. London and 
 North Western Railmnj Compuny (187:>) L. R. 10 C. P. at pp. 316, 
 317 ; Stephen's Digest of the Law of Evidence, Art. 102 ; Bigelovvon 
 the Law of Estoppel (Boston, Mass. 0th ed. 1890). 
 
PERSONS LIABLE BY " HOLDING OUT." 55 
 
 responsible; and the duty of the other partners to indemnify Parti, 
 him, so far from being inconsistent with his liability to third Sect. 14. 
 persons, is founded on it and assumes it as unqualified. 1 
 
 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 out ' 
 a partner by estoppel. 3 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. 3 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. tbat 
 he is a partner in a commercial establishment, and A. B. 
 informs the plaintiff, and the plaintiff believing the defen- 
 dant 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. 4 
 
 The rule as to "holding out " extends to administration Doctrine of 
 in bankruptcy. If two persons trade as partners, and out ° , applies 
 buy goods on their credit as partners, and afterwards both to administra- 
 
 J ° i tion m bank- 
 
 become bankrupt, then, whatever the nature of the real ruptcy. 
 
 agreement between themselves, the assets of the business 
 
 1 Lindley, 65, 66. 
 
 2 lb. 68 ; Fox v. Clifton (1830) 6 Bing. 776, 794, 31 R. R. 536, 546. 
 » lb. : Martyn v. Gray (1863) 14 0. B. N. S. 824. 
 
 * Per Williams, J., Martyn v. Gray (1863) 14 C. B. N. S. at p. 841. 
 
5(5 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 
 Sect. 14. 
 
 It does not 
 apply to bind 
 a deceased 
 partner's 
 estate. 
 
 Liability of 
 retired part- 
 ners. 
 
 Principle of 
 " holding 
 out " not ap- 
 plicable to 
 liability in 
 tort 
 
 must be administered as joint estate for the benefit of the 
 creditors of the supposed firm. 1 
 
 The doctrine of "holding out " does not extend to bind 
 the estate of a deceased partner, where, after his death, the 
 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 liability by the continued use of the old name." 3 
 Sub-sect. 2 declares the settled law on this point. 
 
 A partner who has retired from the firm may be liable 
 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 
 faith of having his credit to look to. 3 This is the meaning 
 of the saying that " a dormant partner may retire from a 
 firm without giving notice to the world." 1 
 
 In one reported case 5 a retired partner was held liable 
 for damage done by a cart belonging to the firm, on which 
 his name still remained. But to make a man liable in tort 
 as an apparent partner involves confusion of principles. 
 
 1 Re Rowland and Craidshaw (1866) L. R. 1 Ck. 421 ; Ex parte 
 Hay man (1878) 8 Cli. Div. 11, 47 h. J. Bky. 54. 
 
 - Lindley, 74, 621. 
 
 3 Carter v. Ulialley (1830) ] B. & Ad. 11, 35 B. R. 199. 
 
 •" Heath v. Hansom (1832) 4 B. & Ail. 172, 177, 38 R. R. 237, 242, 
 per Patteson, J. On the subject of this and of the preceding 
 paragraph, see further Art. 53 below. 
 
 •' Stables v. Kb \j (1825) 1 C. & P. 614. For the true principle, see 
 Quarmau v. Burnett (1840) 6 M. & AY. at p. 508, where it is observed 
 that a representation by holding out " can only conclude the defen- 
 dants with respect to those who have altered their condition on the 
 faith of its being true.'' 
 
PE11S0NS LIABLE BY "HOLDING OUT." 57 
 
 Liability by " holding out " rests on the presumption that Part I. 
 
 ■credit was given to the firm on the strength of the apparent Sect. 147" 
 
 partner's name. 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. 
 
 The fact that his name is there is some evidence that the 
 
 ■driver was in fact his servant, 1 until otherwise explained ; 
 
 when explained, and if the explanation is believed, it is no 
 
 longer even that. It has now been declared in the Court 
 
 of Appeal that Stables v. Eley, as reported, is wrong. 3 
 
 15. An admission or representation made by Admissions 
 any partner concerning the partnership affairs, sentations of 
 and in the ordinary course of its business, is par uers ' 
 evidence against the firm. 3 
 
 An admission 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 references to 
 -authorities on this subject will be found in Sir James 
 Stephen's Digest of the Law of Evidence, Art. 15. Repre- 
 sentations, however, may be conclusive by way of estoppel, 
 or under some of the rules of equity which are in truth 
 afeim i&o zhe legal doctrine of estoppel, and rest on the 
 fc&ELe principle. 
 
 Tie rule does not apply to a representation made by 
 •"..'-* 1 -irisisei a- to the extent of his own authority to bind 
 
 " > liodley, 75. 
 
 ■-■iiJifc T. Bailey [1891] 2 Q. B. 403, 60 L. J. Q. B. 779. 
 «ViM» v. Wickham (1855) 2 K. & J. 478, 491. 
 : jW; -r. Salt (Ihio) 3 Bing. at p. 103, 28 R. B. 604 
 
58 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 
 Sect. 15. 
 
 Notice to 
 acting 
 
 partners to be 
 notice to the 
 firm. 
 
 Liabilities of 
 incoming 
 and outgoing 
 partners. 
 
 the firm. 1 The necessity of this qualification is obvious, 
 for otherwise one partner could bind the firm to anything 
 whatever by merely representing himself as authorized to 
 do so. The legislature seems to have thought it too- 
 obvious for express mention. 
 
 16. Notice to any partner who habitually 
 acts in the partnership business of any matter 
 relating to partnership affairs operates as notice 
 to the firm, except in the case of a fraud on 
 the firm committed by or with the consent of 
 that partner. 2 
 
 There does not seem, before the Act, to have been any 
 clear authority for confining the rule to acting partners. 
 But it would obviously be neither just nor convenient to 
 hold that notice to a dormant partner operated, without 
 more, as notice to the firm. 
 
 It is doubtful whether a firm is to be deemed to have 
 notice of facts known to a partner before he became a 
 member of the firm. 3 This doubt is not removed by 
 the Act. 
 
 17. — (1-) 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. 4 
 
 1 Ex parte Atjace (1792) 2 Cox, 312, 2 R. H, 49. 
 
 2 Lindley, 141, 142; Jesse], M.S., in Williamson v. Barbour 
 (1877) 9 Cli. D. at p. 535 ; cp. Lacey v. Hill (1876) 4 Ch. Div- 
 at p. 549. 
 
 ;1 Jessel, M.R., in Williamson v. Barbour, 9 Ch. D. at p. 535 :— 
 " It has not, so far as I know, been held that notice to a man who- 
 aftorwards becomes a partner is notice to the firm. It might be so- 
 held." 
 
 4 Op. 1. ('. A. 249. 
 
LIABILITY OF INCOMING AND OUTGOING PARTNER*. 59 
 
 ("2.) A partner who retires from a firm does Part i. 
 not thereby cease to be liable for partnership Sect - n - 
 debts or obligations incurred before his retire- 
 ment. 
 
 (3.) A retiring partner may be discharged 
 from any existing liabilities by an agreement 
 to that effect between himself and the members 
 of the firm as newly constituted and the credi- 
 tors, and this agreement may be either express 
 or inferred as a fact from the course of dealing 
 between the creditors and the .firm as newly 
 constituted. 1 
 
 Illustrations. 
 
 1. A., B. and C. are partners. D. is a creditor of the firm. 
 A. retires from the 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 affect D.'s right to obtain 
 payment from A., B. and C, or A.'s liability to D. 
 
 2. A., P. and Q. are partners. A. is the managing partner 
 and P. and Q. are dormant partners. A. instructs X., a solici- 
 tor, to bring an action in the firm-name. While the action is 
 pending the partnership is dissolved. X. does not know that 
 P. and Q. are partners, and has no notice of the dissolution, 
 and no step is taken by P. or Q. to withdraw X.'s retainer. 
 P. and Q. are liable to X. for costs incurred in the action after 
 as well as before the dissolution. 3 
 
 3. 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, 
 taking a covenant from B. and C. to indemnify him against 
 all liabilities under the contract. D. knows of A.'s retirement. 
 
 ; Lindley, 254, sqg. 
 
 - Court v. Berlin [1897] 2 Q. B. 396, 66 L. J. Q. B. 714, C. A. 
 
60 PARTNERSHIP ACT, 1890. 
 
 Part I. A. remains liable to D. under the contract, and is bound by 
 Sect, 17~ everything duly done under it by B. and C. after his retirement 
 from the firm. 1 
 
 •J. A., B. and C. are bankers in partnership. A. dies, and 
 B. and C. continue the business. 1)., E. and F., customers of 
 (he 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 F. for the balances due to them respectively at 
 the time of A.'s death, less any sums subsequently drawn out. 3 
 
 In the last case pur, 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 discharged 
 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. 5 
 
 5. 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 con- 
 tinued 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. J 
 
 (i. A. and B. are bankers in partnership. A. dies. X., a 
 customer of the bank, to whom A.'s death is known, draws 
 
 Oakford v. Eurojhan and American Steam Shipping Company 
 (1803) 1 H. & M. 182, 191. Sue also »n>cv.JW«mi (1876) 1 Q. B. D. 
 536; Mouse v. llradford Paulimj Co. [1894] 2 Ch. 32 ; in H. L. [1894] 
 A. C. 580, (53 L. ,1. Oh. 890. 
 
 '- Herayues v. Xobh, Slm-h's Case (18105) 1 llw. 539, 509, 15 E. H. 
 155 ; Clayton'* Oust- (1810) 1 Mw. 57:2, 604, 15 K, K. 161, 163. 
 
 ■' Clat/ton's Case (1816) 1 Mor. at p. 579. 
 
 * lliltwrmiijh v. ;y»/mt-*(lS76) 5 Ch. D. 255, 46 L. J. Ch. 4 6. 
 
Sect. 17. 
 
 LIABILITY OF INCOMING AND OUTGOING PARTNERS. 61 
 
 out part of a sum left by him on deposit, and takes a fresh Part I. 
 deposit receipt for the residue signed in the firm-name by a 
 cashier, this being the usual course of business. This is not 
 an acceptance by X. of B.'s liability alone in exoneration of 
 A.'s estate. 1 Z., another customer, transfers money from n, 
 current to a deposit account, and takes a receipt signed by B. 
 for the firm. This is an acceptance of B.'s sole liability and 
 discharge of A.'s estate. 3 
 
 7. A. ami 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. 3 
 
 8. A. and B. are partners. A. retires, and B. takes 0. 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 
 
 To determine whether an incoming partner has become Test of lia- 
 liable to an existing creditor of the firm, two questions fi ^ ] ty ° new " 
 have to be considered : — 
 
 1st. Whether the new firm has assumed the liability to 
 pay the debt. 
 
 1 Re Head [1893] 3 Ch. 426, 63 L. J. Ch. 35. 
 
 2 Re Head (No. 2) [1894] 2 Ch. 236, 63 L. J. Ch. 549, C. A. 
 
 3 Rolfe v. Flower (1865) L. R 1 P. C. 27. 
 
 4 Scarf v. Jardine (1882) (H. L.) 7 App. Ca. 345, 51 L. J. Q. B. 
 612. 
 
62 PARTNERSHIP ACT, 1890. 
 
 Part I. 2nd. Whether the creditor has agreed to accept the new 
 
 ~~Seet. 17. firm as his debtors, and to discharge the old partnership 
 
 from its liability. 1 
 Novation. Novation is the technical name for the contract of substi- 
 
 tuted 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. 
 Mere agree- An agreement between the old partners and the incoming 
 
 partners can- partner that he shall be liable for existing debts will not of 
 novatiorf' 6 aS itself 8 iye tne creditors of the firm any right against him ; 
 for it is the rule of modern English law (though it was 
 formerly otherwise in England, and now is, to some extent, 
 in several American States) 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 partner 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 stipulating 
 with any creditor from the beginning that he shall look 
 only to the members of the firm for the time being : the 
 term novation, however, is not properly applicable to such 
 
 Bevoeation \Q A continuing guaranty or cautionary 
 
 of continuing .... 
 
 guaranty by obligation given either to a firm or to a third 
 
 change in . 
 
 firm. person in respect of the transactions of a firm is, 
 
 1 liolfe v. Flower (1865) L. B. 1 P. C. at p. 38. 
 
 ■ Lindley, 216. 
 
 3 This is involved in Hort's Ciw and drains Case (1875) 1 Ch. 
 Div. 307 ; see per James, L.J., at p. 322, and ep. Lindley, 254, 
 note (a). 
 
REVOCATION OF GUARANTY BY CHANGE IN FIRM. 63 
 
 in the absence of agreement to the contrary, Part i. 
 revoked as to future transactions by any change Sect - 18 - 
 in the constitution of the firm to which, or of 
 the firm in respect of the transactions of which, 
 the guaranty or obligation was given. 
 
 This section is a substantial re-enactment, much con- 
 densed and improved in expression, of provisions of the 
 Mercantile Law Amendment Act of 1856 for England and 
 Scotland respectively (see the repealing enactment, s. 48 
 below, and the Schedule). The present form is almost 
 word for word from I. C. A. 260. 
 
 An intention that the promise shall continue to be Evidence of 
 binding, notwithstanding a change in the members of the guaranty 
 firm, cannot be inferred from the mere fact that the tinue° 0n " 
 primary liability is an indefinitely continuing one ; as, for 
 example, where the guaranty is for the sums to become 
 due on a current account. 1 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. 3 
 
 Relations of Partners to one another. 
 19. The mutual rights and duties of partners, variation by 
 
 consent of 
 
 whether ascertained by agreement or defined terms of 
 
 T)3.rtn6rsh i d 
 
 by this Act, may be varied by the consent of 
 all the partners, and such consent may be either 
 express or inferred from a course of dealing. 3 
 
 1 Backhouse v. Hall (1865) 6 B. & S. 507, 520, 34 L. J. Q. B. 141. 
 
 2 See Metcalfv. Bruin (1810) 12 East, 400, 11 R. K. 432. 
 
 3 Cp. I. C. A. 252 ; Const v. Harris (1824) T. & R. 496, 517, 24 
 
g4 PABTNKIISHIP ACT, 1890. 
 
 Part I. 
 SectTl9. 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 them 
 to draw and accept bills in 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. 1 
 
 i. Articles of partnership provide that a valuation of the 
 partnership property shall be 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 by 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 represen- 
 tatives, though no particular mode .of valuation is prescribed 
 by the partnership articles, or even if the mode adopted is 
 inconsistent with the terms of the articles. 2 
 
 3. It is the practice of a firm, when debts are discovered to 
 be bad, to debit them to the pro6t and loss account of the 
 current year, without regard to the year in which they may 
 
 It. R. 108, 126. " "With respect to a partnership 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 clay to day, and the 
 terms of such variations may not only be evidenced by writing, btit 
 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 altera- 
 tion in the terms on which they carry on business, provided those 
 additions or alterations be made with the unanimous concurrence of 
 all the partners": Lord Langdale, M.R., in Entjhiml v. Cutii mj (\S-i-i) 
 8 l'.eav. 129, 133. 
 
 1 Lord Eldon in Const v. Harris (]>24! T. & R at p. 523, 24 R. R. 
 131. 
 
 ' Omrutnj v. Barclay (1864) 3 D. J. S. 320. 
 
PARTNERSHIP PROPERTY. 65' 
 
 have been reckoned as assets. A partner dies, and after the Part I. 
 accounts have been made up for the last year of his interest in Seoti 19i 
 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. 1 
 
 It, is an obvious corollary of the rule here set forth that Variations 
 
 persons claiming an interest in partnership property as t0 binding on 
 
 representatives or assignees of any partner who has assented P artner ' s 
 D J r representa- 
 
 expressly or tacitly to a variation of the original terms of tives. 
 partnership are bound by his assent, and have no ground 
 to complain of those terms having been departed from. 2 
 
 20. — (1-) All property and rights and inte- Partnership 
 rests in property originally brought into the pr ° per J ' 
 partnership stock or acquired, whether by pur- 
 chase or otherwise, on account of the firm, or 
 for the purposes and in the course of the part- 
 nership business, are called in this Act partner- 
 ship property, and must be held and applied 
 by the partners exclusively for the purposes of 
 the partnership and in accordance with the 
 partnership agreement. 
 
 (2.) Provided tbat the legal estate or interest 
 in any land, 3 or in Scotland the title to and 
 interest in any heritable estate, which belongs 
 to the partnership, shall devolve according to 
 
 1 Ex parte Barber (1870) L. E. 5 Ch. 687. 
 
 2 Const v. Harris (1824) T. & R. at p. 524, 24 R. R 131. 
 
 3 By the Interpretation Act, 1889, s. 3, "land" includes "mes- 
 suages, tenements, and hereditaments, houses, and buildings of any 
 tenure." 
 
 P. F 
 
66 PARTNERSHIP ACT, 1890. 
 
 Part i. the nature and tenure thereof, and the general 
 
 sect. 20. ru j eg f j aw thereto applicable, but in trust, 
 
 so far as necessary, for the persons benefically 
 interested in the land under this section. 1 
 
 (3.) Where co-owners of an estate or interest 
 in any land, 2 or in Scotland in any heritable 
 estate, not being itself partnership property, 
 are partners as to profits made by the use of 
 that land or estate, and purchase other land or 
 estate out of the profits to be used in like 
 manner, the land or estate so purchased belongs 
 to them, in the absence of an agreement to the 
 contrary, not as partners, but as co-owners for 
 the same respective estates and interests as 
 are held by them in the land or estate first 
 mentioned at the date of the purchase. 3 
 
 Illustrations. 
 
 1. Land bought in the name of one partner, and paid for by 
 the firm or out of the profits of the partnership business, is 
 partnership property unless a contrary intention appears. 4 
 
 2. One partner in a firm buys railway shares in his 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. 5 
 
 3. The goodwill of the business carried on by a firm, so far 
 
 1 Cp. Lindley, 349, 350. 
 
 2 See note s , last page. 
 
 3 Cp. Illustration 6. 
 
 * Nerot v. Burnand (1827) 4 Russ, 247, 2 Bli. N. S. 215, 28 R. R. 
 65 ; IVcdderhum v. IVedderburn (1856) 22 Beav. at p. 104. 
 5 Jix parte Hinds (1863) 3 De G. & Sin. 603. 
 
PARTNERSHIP PROPERTY. 67 
 
 as it has a saleable value, is partnership property, unless the Part I. 
 contrary can be shown. 1 sect. 20. 
 
 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. 3 
 
 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. 3 
 
 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. 3 
 
 7. "W., a nurseryman, devises the land on which his business 
 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 partnership 
 property. 4, 
 
 8. A. is the owner of a cotton-mill. 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. 
 During the partnership the mill is enlarged and improved, 
 and other lands acquired and buildings erected for the same 
 purposes, at the expense of the firm. The mill, plant, jmd 
 
 1 Lindley, 336. See more as to goodwill, p. 110, below. 
 
 2 lb. 341 ; Crawshay v. Maule (1818) 1 Swanst. 495, 518, 523, 
 18 R. R. 126, 132, 136. A fortiori, where the colliery belongs 
 to A. alone before the partnership : Burdon v. Barkus (1862) 4 
 D. F. J. 42. 
 
 •» Implied in Steward v. Blalceway (1869) L. R. 4 Ch. 603 ; though 
 in that case it was treated as doubtful if there was a partnership 
 at all. 
 
 * Waterer v. TVaterer (1873) L. R. 15 Eq. 402. Cp. Davit v. Dams 
 [1894] 1 Ch. 393, 63 L. J. Ch. 219. 
 
 f2 
 
money. 
 
 gg PARTNERSHIP ACT, 1890. 
 
 Part I. machinery, as well as the lauds afterwards purchased and the 
 Sect. io7~ 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 
 partnership business. 1 
 
 Property 21. Unless the contrary intention appears, 
 
 parfnerahip 1 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 pajd 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 
 dwelling-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 
 
 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-mi >ney. This land 
 is not partnership property. 3 
 
 3. [One of two partners expends partnership moneys in 
 buying a ship, which is registered in his name alone. The 
 ship is not partnership property. l ] 
 
 1 Robinson v. Ashton (1875) L. R, 20 Eq. 25, 44 L. J. Ch. 542. 
 
 2 Ex parte M'Kenna (Bank of England Case) (1861) 3 D. F. J. 645. 
 
 3 3 D. F. J. 659 (1861) ; Smith v. Smith (1800) 5 Ves. 189, 5 
 R. R. 22. 
 
 4 ll'altmi v. Rutin- (18GI) -29 Boav. 428. This case aa reported 
 seems to go beyond the other authorities : but the facts are very 
 
PARTNERSHIP PROPERTY. 69 
 
 It is not quite clear whether the interest of partners in Part I. 
 
 the partnership property is more correctly described as a Sect. 21. 
 
 tenancy in common or a joint tenancy without benefit Description of 
 
 J J interest of 
 
 of survivorship, but the difference appears to be merely partners in 
 
 i , l partnership 
 
 verbal. property. 
 
 It will be observed 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 devise will equally be 
 partnership property, if, in the language of James, L.J., 
 it is " substantially involved in the business." - 
 
 22. Where land or any heritable interest Conversion 
 therein has become partnership property, it estate of land 
 shall, unless the contrary intention appears, 3 partnership 
 
 be treated as between the partners (including 
 the representatives of a deceased partner), and 
 also as between the heirs of a deceased partner 
 and his executors or administrators, as personal 
 or moveable and not real or heritable estate. 4 
 
 The application of this rule does affect the character 
 of any property for the purposes of the Mortmain and 
 
 briefly given, and there may have been circumstances which do not 
 appear. 
 
 1 Lindley, 348. It follows in theory that if one partner's interest 
 is forfeited to the Crown, the whole property of the firm is forfeited ; 
 lb. 349 ; Blackst. Comm. ii. 409 ; but see Lindley, 570, note (d); 
 
 1 L. R. 15 Eq. 406 ; see Illustration 7 to sect. 20, p. 67, above. 
 
 - 1 See Re Wilson, Wilson v. Holloway [1893] 2 Oh. 340, 62 L. J. Ch. 
 781. 
 
 4 Cp. Lindley, 352. The conclusion there arrived at on the 
 balance of authorities is now declared to be law. It is believed that 
 the rule was well settled, and may safely be accepted in other common 
 law jurisdictions. Kindersley, V.-C, Darby v. Darby (1856)3 Drew. 
 495, 506 ; and see L. R. 4 Ch. 609 (1869). 
 
 property. 
 
70 PARTNERSHIP ACT, 1890. 
 
 Part I. Charitable Trusts Act, 1888. x But a deceased partner's 
 
 Sect. 22. 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. 2 * 
 
 Conversion of It is to be observed that partners may at any time 
 
 separate by agreement between themselves convert partnership 
 
 verselv°by 011 ' Property into the several property of any one or more of the 
 
 agreement of partners, or the several property of any partner into 
 
 partnership property. And such conversion, if made in 
 
 good faith, is effectual not only as between the partners, 
 
 but as against the creditors of the firm and of the several 
 
 partners. 3 But if the firm or the partner whose separate 
 
 estate is concerned becomes bankrupt or is insolvent after 
 
 any such agreement and before it is completely executed, 
 
 the property is not converted. 4 Of course tenants in 
 
 common who are not partners may agree to treat their 
 
 land as converted, as on the other hand the intention not 
 
 to convert it may be clear enough to dispense with deciding 
 
 the question whether there is a partnership or not. 5 
 
 Illustration. 
 
 A. and B. dissolve a partnership which has subsisted between 
 them, and A. takes over the property and business of the late 
 firm. A. afterwards becomes bankrupt. The property taken 
 
 1 Ashworth v. Mann (1878-80) 15 Ch. Div. 363, 50 L. J. Ch. 107 
 (on the former so-called Mortmain Act of Geo. 2). 
 
 2 Att.-Gen. v. Hubbuch (1883-4) 10 Q. 15. D. 488, 13 Q. B. Div. 275, 
 52 L. J. Q. B. 464, 53 L. J. Q. B. 146. 
 
 3 Lindley, 343, 715 ; Campbell v. Miilldt (1S19-9) 2 Swaust. at 
 pp. 575, 584, 19 B. B. at pp. 138, 139, 145. As to what will or may 
 amount to conversion, see the judgments in At!. -Gen. v. Hubbuck, 13 
 Q. B. Div. 275, especially that of 15.. wen, L.J., at p. 289. 
 
 4 Lindley, 346-7 ; Ex parte Kempt ner (1869) L. B. 8 Eq. 286. 
 
 4 Re Wilson, Il'ikon v. Hvllvwaij [1893] 2 Ch. 340, 62 L. J. Ch. 
 781. 
 
CONVERSION OF LAND. 71 
 
 over by A. from the late partnership has become his separate Part I. 
 estate, and the creditors of the firm cannot treat it as joint seotTiil 
 estate in the bankruptcy. 1 
 
 The share of a partner in the partnership property at What is a 
 any given time may be denned as the proportion of the share. 
 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. 2 
 
 Illustration. 
 F. and L. are partners and joint tenants of offices used by 
 them for their business. F. dies, having made his will, con- 
 taining 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 pro- 
 perty which F. hud as a partner at the date of his death — 
 namely, a right to a moiety, subject to the payment of the debts 
 of the firm ; and if the debts of the firm exceed the nssets, L. 
 takes nothing by the bequest. 3 
 
 23. — (1-) After the commencement of this Procedure 
 Act a writ of execution shall not issue against nership 
 any partnership property except on a judgment ^partner's r 
 
 , , -, n separate 
 
 against the firm. judgment 
 
 (2.) The High Court, or a judge thereof, or 
 the Chancery Court of the county palatine of 
 Lancaster, or a county court, may, on the 
 
 1 Ex parte Buffin (1801) 6 Ves. 119, 5 E. It. 237 ; see also the more 
 complex cases given at. pp. 147-149, below. The question whether 
 partnership property has been converted into separate property occurs 
 in fact chiefly, if not exclusively, in the administration of insolvent 
 partners' estates. 
 
 2 Lindley, 348. 
 
 3 Furquhar v. Hadden (1871) L. B. 7 Ch. 1, 41 L. J. Oh. 260. 
 
 debt. 
 
72 PARTNERSHIP ACT, 1890. 
 
 application by summons of any judgment 
 creditor of a partner, make an order charging 
 that partner's interest in the partnership pro- 
 perty and profits with payment of the amount 
 of the judgment debt and interest thereon, and 
 may by the same or a subsequent order appoint 
 a receiver of that partner's share of profits 
 (whether already declared or accruing), and of 
 any other money which may be coming to him 
 in respect of the partnership, 1 and direct all 
 accounts and inquiries, and give all other 
 orders and directions which might have been 
 directed or given if the charge had been made 
 in favour of the judgment creditor by the 
 partner, or which the circumstances of the case 
 may require. 2 
 
 (3.) The other partner or partners shall be 
 at liberty at any time to redeem the interest 
 charged, or in case of a sale being directed, to 
 purchase the same. 
 
 (4.) This section shall apply in the case of 
 a cost-book company as if the company were 
 a partnership within the meaning of this Act. 
 
 (5.) This section shall not apply to Scotland. 
 
 This enactment puts an end to an inconvenience which 
 had long been felt but never hitherto remedied. At 
 
 1 This applies to a foreign firm having a branch in England : 
 Birnrn, Jauson d- Co. v. Hutchinson (No. 1) [1895] 1 Q. B. 737, 64 
 J,. J. Q. B. 359, C. A. 
 
 2 This sub-section does not, as a rule, entitle the judgment creditor 
 
PROCEDURE AS TO SEPARATE JUDGMENT DEBTS. 73 
 
 ■common law partnership property was exposed to be taken in Part x 
 ■execution for a separate debt of any partner, and it was Seot 23 
 the sheriff's duty to sell the debtor's interest in the goods 
 seized, although it was generally impossible to ascertain 
 what that interest was, unless by taking the partnership 
 accounts. It is no secret that the present amendment of 
 the law is due to the counsels of Lord Lindley. 1 
 
 Where judgment has been given in an action in the 
 Chancery Division for the dissolution of a partnership, 
 and a receiver appointed, and afterwards a creditor recovers 
 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. 2 
 
 Cost-book companies are not generally within this Act 
 ■(sect. 1, sub-sect. 2, cl. (c) ) ; but in the interest of justice 
 and convenience this section is, by sub-sect. 4, specially 
 made to include them. 
 
 The following Rules of Court have been made for the 
 purposes of this section : — 
 
 "Every summons by a separate judgment 
 creditor of a partner for an order charging his 
 interest in the partnership property and profits 
 under section 23 of the Partnership Act, 1890 
 
 .to have accounts rendered him by the other partners, as an express 
 .assignment (sect. 31) would not give him that right : Brown, 
 Janson& Go. v. Hutchinson (No. 2) [1895] 2 Q. B. 126, 64 L. J. Q. B. 
 ■619, C. A. 
 
 1 For the old law, see Lindley, 5th ed. 356-62 ; Whetham. v. 
 Davey (1885) 30 Ch. D. at p. 579 ; Helmore v. Smith (1887) 35 
 <Ch. Div. 436. Cp. sect. 33, p. 93, below. 
 
 1 Kewney v. Attrill (1886) 34 Ch. D. 345, 56 L. J. Ch. 448. 
 
74 PARTNERSHIP ACT, 1890. 
 
 Parti. (53 & 54 Vict. c. 39), and for such other 
 
 sect. 23. orders as are thereby authorised to be made,, 
 
 shall be served in the case of a partnership 
 other than a cost-book company on the judg- 
 ment debtor and on his partners or such of 
 them as are within the jurisdiction or in the 
 case of a cost-book company on the judgment 
 debtor and the purser of the company ; and 
 such service shall be good service on all the- 
 partners or on the cost-book company as the 
 case may be, and all orders made on such 
 summons shall be similarly served. 1 
 
 "Every application which shall be made by 
 any partner of the judgment debtor under the 
 same section shall be made by summons, and 
 such summons shall be served in the case of a. 
 partnership other than a cost-book company on 
 the judgment creditor and on the judgment 
 debtor, and on such of the other partners as. 
 shall not concur in the application and as shall 
 be within the jurisdiction, or in the case of a. 
 cost-book company on the judgment creditor 
 and on the judgment debtor and on the purser 
 of the company, and such service shall be good 
 service on all the partners or on the cost-book 
 company as the case may be, and all orders made- 
 on such summons shall be similarly served." 2 
 
 1 Order XLVI. r. 1a. (June, 1891.) There do not appear to. 
 be any reported decisions on the practice. 
 
 3 lb. i: In. A charging order under sect. 23 is not a "transaction ' 
 
RULES AS TO DUTIES OF PARTNERS. ,75 
 
 24. The interest of partners in the part- Part i. 
 nership property and their rights and duties in Sect ' 24 - 
 relation to the partnership shall be determined, interests and 
 subject to any agreement express or implied partner's sub- 
 between the partners, by the following rules : 1 ig C r eement ml 
 (1.) All 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 firm. 
 (2.) The firm must indemnify every partner 
 in respect of payments made and personal 
 liabilities incurred by him — 
 
 (a.) In the ordinary and proper conduct 
 
 of the business of the firm ; or, 
 (b.) In or about anything necessarily 
 clone for the preservation of the 
 business or property of the firm. 2 
 (3.) A partner making, for the purpose of the 
 partnership, any actual payment or advance 
 beyond the amount of capital which he has 
 agreed to subscribe, is entitled to interest at 
 the rate of five per cent, per annum from 
 the date of the payment or advance. 3 
 
 protected by sect. 49 of the Bankruptcy Act, 1883 ; Wild v. 
 Southwood [1897] 1 Q. B. 317, 66 L. J. Q. B. 166. 
 
 1 Cp. I. C. A. 253. 
 
 2 Ex parte Chippendale {German Mining Company 's Case) (1853) 4 
 D. M. G. 19 ; Bunion v. Barhus (1862) 4 D. F. J. 42, 51. 
 
 i Ex parte Chippendale, last note ; Sargood's Claim (1872) L. R. 15 
 Eq. 43 ; Lindley, 391. 
 
76 
 
 Parti 
 
 PAIITSEHSHIP ACT, 1890. 
 
 (4.) A partner is not entitled, before the 
 sect. 24. ascertainment of profits, to interest on 
 
 the capital subscribed by him. 
 
 (5.) Every partner may take part in the 
 management of the partnership business. 
 
 (6.) No partner shall be entitled to remunera- 
 tion for acting in the partnership business. 
 
 (7.) No person may be introduced as a 
 partner without the consent of all existing 
 partners. 
 
 (8.) Any difference arising as to ordinary 
 matters connected with the partnership 
 business may be decided by a majority of 
 the partners, but no change may be made 
 in the nature of the partnership business 
 without the consent of all existing partners. 
 
 (9.) The partnership books are to be kept at 
 the place of business of the partnership 
 (or the principal place, if there is more 
 than one), and every partner may, when 
 he thinks fit, have access to and inspect 
 and copy any of them. 1 
 
 This section declares the working rules implied by law 
 in every partnership, except so far as excluded or varied 
 hy the consent of the parties in the particular case. It will 
 be convenient to comment on the sub-sections separately. 
 
 1 limit rex v. Omttirx (1847) 1 De G. & Sm. 692, see the terms 
 of the order there ; and ep. Lindley, 421, and see p. 82, below. 
 Where a firm has move than one place, of business, it should 
 always be expressly provided by the partnership articles which shall 
 
RULES AS TO DUTIES OF PARTNERS. 77 
 
 Part I. 
 
 Sect. 24. 
 
 (1.) As to the presumed equality of shares. 
 
 Equality in sharing profit and loss, independent of the 
 shares of original capital contributed by the partners, is 
 the only rule applicable in the absence of special agree- 
 ment. The value of a particular member to the firm, 
 derived from his skill, experience, or business connexion, 
 may be wholly out of proportion to the amount of capital 
 brought in by him. The Court, therefore, cannot under- 
 take to apportion profits where the partners have not done 
 so themselves. Equality is equity, not as being absolutely 
 just, but because it cannot be known that any particular 
 degree of inequality would be more just. 
 
 (2.) As to rights of Partners to indemnity and contribution. 
 
 Generally speaking, every partner is the agent of the This right is 
 
 of agency. 
 
 firm for the conduct of its business (sect. 5), and as such nTaMi^v 611 * 
 is entitled to indemnity on the ordinary principles of the 
 law of agency. But the rights of a partner to contribu- 
 tion go beyond this : he may charge the firm with moneys 
 necessarily expended by him for the preservation or con- 
 tinuance of the partnership concern. This right must be 
 carefully distinguished from the power of borrowing money 
 on the credit of the firm, of which it is altogether indepen- 
 dent. 1 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, and the 
 firm has had the benefit of such expense ; as where the 
 advances are made to meet immediate debts of the firm 
 (which is the most frequent case), or to pay the cost of 
 
 be considered the principal place of business and where, the books are 
 to be kept. 
 
 1 4 D. M. G. 35, 40 (1853). 
 
78 PARTNERSHIP ACT, 1890. 
 
 Part I. operations without which the business cannot go on, such 
 Sect. 24. as sinking a new shaft when the original workings of a 
 mine are exhausted. 1 
 
 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 
 
 Limit of con- extent of the capital. 3 On the other hand, the limit of 
 
 tribution may 
 
 be fixed by contribution may be fixed beforehand by express agree- 
 
 agreemen . men t; among the members of a firm, and in that case no 
 partner can call upon the others to exceed it, however 
 great may have been the amount, of his own outlay on 
 behalf of the firm. 3 This has nothing to do with the 
 obligations of the partners to third persons, who accord- 
 ingly remain entitled to hold every partner liable for the 
 whole amount of the debts of the partnership, unless they 
 have agreed to look only to some particular fund. 
 
 This duty imposed on the firm to indemnify any one of 
 its members against extraordinary outlays for necessary 
 purposes is one of a class of duties quasi ex contractu which 
 are recognized by the law of England only very sparingly 
 and under special circumstances. It is outside the rules of 
 agency, 4 and has still less to do with trust ; real analogies 
 are to be found in salvage and average. 
 
 (5.) As to the Right of Partners to take part in the Business. 
 
 Although it is the rule, in the absence of special agree- 
 ment, that " one partner cannot exclude another from an 
 
 1 Bunion v. Barhis (1862) 4 D. F. J. 42 ; Ex parte Williamson 
 (1869) L. R, 5 Ch. 309, 313 ; cp. Lindley, 201, note (x). 
 
 - A'.r parte Cliippendalc (1853) 4 D. M. G. at p. 42. 
 
 1 U'onrxtcr Com Exchange Company (1853) 3 D. M. G. 180. 
 
 4 The Lord Justice Turner, however, seems to assume an implied 
 authority : 4 D. M. G. 40. 
 
RULES AS TO DUTIES OF PARTNERS. 79 
 
 equal management of the concern," 1 yet it is "perfectly Parti, 
 competent," and in practice very common, " for partners Sect. 24. 
 to agree that the management of the partnership affairs 
 shall be confided to one or more of their number exclusively 
 of the others;" 3 and in that case the special agreement 
 must be observed. 
 
 (6.) Duty of gratuitous diligence in partnership business. 
 
 This rule, like the preceding, may be, and often is, 
 departed from by express agreement. The second branch 
 of it does not prevent a partner from recovering compensa- 
 tion for the extra trouble thrown upon him by a co-partner 
 who has disregarded the first branch by wilful inattention 
 to business. 3 
 
 (7.) Consent of all required for admission of new Partner. 
 
 This is given by Lord Lindley* as " one of the funda- 
 mental 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 partner can indeed assign or mortgage to a stranger Assignment 
 his interest in the profits of the firm ; and it was settled °^ s re ° 
 before the Act that the assignee or mortgagee would 
 thereby acquire " a right to payment of what, upon taking 
 the accounts of the partnership, might be due to the 
 assignor or mortgagor." 5 It is now declared by the Act 
 
 1 Rowe v. Wood (1822) 2 Jao. & W. at p. 558, 22 R. R. 211. 
 
 2 Lindley, 312, 313. 
 
 3 Airey v. Borham (1861) 29 Beav. 620. 
 
 4 Lindley, 366 ; cp. I. C. A. 253, sub-s. 6. 
 Lindley, 367 ; sect. 31, p. 91, below. 
 
80 PARTNERSHIP ACT, 1890. 
 
 Part I. (sect. 31, below) that he cannot call on the other partners to 
 Sect. 24. account with him (as before the Act he probably, though 
 not quite certainly, could not), and his claim is subject to 
 all their existing rights. 1 
 
 Since the Act it seems that the assignment of a partner's 
 share does not in any case work a dissolution of itself, or 
 give the other partners an absolute right to have the part- 
 nership dissolved. Sect. 33, sub-sect. 2, does give that right 
 in the event of a partner allowing his share to be charged 
 under sect. 23 for his separate debt. But the fact of a 
 partner having alienated his share so as to deprive himself 
 of substantial interest in the firm would be a circumstance 
 for the consideration of the Court in determining whether 
 it was just and equitable to order a dissolution under 
 sect. 35.° 
 
 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 
 shares of the profits of the original firm. But as against 
 the original firm itself the new comer would have no rights 
 whatever. 3 " Qui admittitur socius ei tantum socius est, 
 qui admisit ; et recte, cum enim societas consensu contra- 
 hatur, socius mihi esse non potest, quern ego socium esse 
 nolui. Quid ergo si socius meus eum admisit ? ei soli 
 socius est. Nam socii mei socius meus socius non est." i 
 Shares firms- On the other baud, the interest of all or anv of the 
 
 ierablc by 
 
 agreement. partners may be made assignable or transmissible by 
 
 1 Kelly v. Hutton (1868) L. R. 3 Ch. 703 ; cp. JVhetham v. Davey 
 (1885) 30 Ch. D. f>74. 
 ■ See Liiulloy, r>7. r >-0. 
 
 : ' Liiullev, 54 ; llroim , . Be Tastd (1821) Jac. 284, 23 R. R. 59. 
 4 UJpisii, D. 12, 1,pro socio, 19, 20. 
 
POWERS OF MAJORITY. 81 
 
 express agreement ; and such agreement may be embodied Fart I. 
 once for all in the original constitution of the partnership. 1 Sect. 24. 
 It is quite common in practice for a senior partner to 
 reserve the power of introducing one or more new partners 
 at any time, or after a certain time. The persons so 
 introduced are generally sons or kinsmen. Often, but 
 not always, they are named in the original articles. 
 
 (8.) Power of majority to decide differences. 
 
 There is a somewhat strange lack of positive judicial 
 authority on the power of a majority in matters occurring 
 in the ordinary conduct of business and not expressly pro- 
 vided for. Sir G. Jessel is believed to have intimated in 
 one or more unreported cases an opinion that a majority 
 of the partners has not any power whatever implied by 
 law. But the rule that in such matters the mind of the 
 greater number must prevail is universal in modern business 
 practice, and is the undoubted rule of company law. The 
 Indian Contract Act had already recognized it, as it is now 
 recognized and confirmed by the principal Act. Whether 
 the power of a majority be exercised under this sub-section 
 or under an express agreement in the partnership articles, 
 the decision must be arrived at in good faith for the interest 
 of the firm as a whole, and every partner must have an 
 opportunity of being heard. 2 The rule that a change in 
 the nature of the business can be made only by consent of 
 all the partners 3 is one of the rules of partnership law 
 
 1 Lindley, 368. 
 
 2 Const v. Harris (1824) T. & B. 496, 518, 525, 24 E. E. 108, 126, 
 132 ; Blisset v. Daniel (1853) 10 Ha. 493, 522, 527. 
 
 s Natusch v. Irving, Lindley, 5th ed. 316 (and see 6th ed. 328) ; 
 Const v. Harris (1824) T. & B. at p. 517, 24 E. E. 126 ; I. C. A. 253, 
 sub-s. 5. As to place, Clements v. Norris (1878) 8 Ch. Div. 129, 47 
 L. J. Ch. 546, which shows that one partner cannot without the 
 
 V. g 
 
82 PARTNERSHIP ACT, 1890. 
 
 Part I. which applies equally to companies ; and in that applica- 
 Sect. 24. tion it is of great importance. " The governing hody 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." 1 
 But it would not be relevant here to pursue this subject 
 farther. 
 
 (9.) Right to copy books. 
 A partner's right to make extracts from the books while 
 he is a member of the firm does not give him any privilege 
 to use those extracts for purposes hostile or injurious to 
 the firm after he has ceased to be a partner. 3 
 
 Power to 25. No majority of the partners can expel 
 
 Gxp61 I'lirliior, 
 
 any partner unless a power to do so has been 
 conferred by express agreement between the 
 partners. 
 
 Under this section, which affirms the law as it stood, a 
 majority not only must not but can not expel any partner 
 without a power expressly conferred. An attempt to expel 
 a partner without such power, or without complying with 
 the conditions of good faith applicable to all powers of 
 majorities, as mentioned under sub- sect. 8 of sect. 24, 3 is 
 merely void and of no effect. A partner so dealt with has, 
 therefore, no cause of action for damages, 4 for he is still a 
 
 consent of the others even renew an expired lease of premises where 
 partnership works have already been carried on. 
 
 1 Wickcns, V.-C, in Pickering v. Sttphcnsmi (1872) L. E. 14 Eq 
 322, 340, 41 L. J. Ch. 493. 
 
 2 Trajn v. Hunt [1896] A. C. 7, 26, per Lord Davey. 
 
 3 See also Steuart v. 1,'hihtime (1879) 10 Ch. Div. (526, 650. 
 
 4 Wood v. ll'oad (1874) L. R. 9 Ex. 190 ; 43 L. J. Ex. 190. In 
 this ciise the association in question was not really a partnership 
 
POWER TO EXPEL PARTNER. 83 
 
 partner and has suffered no more loss in contemplation of Part I. 
 law than if the majority had purported to pass a criminal Sect. 25. 
 sentence on him, or to deprive him of his rights in any 
 other ohviously unauthorized way. His proper remedy is 
 to claim reinstatement in his rights as a partner. 1 In the 
 case of expulsion the conditions of good faith include 
 a reasonable preliminary warning and opportunity of 
 explanation. 3 
 
 In one case 3 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 determine 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. 
 
 26. — (1.) Where no fixed term has been Retirement 
 agreed upon for the duration of the partner- shipatwm. 
 ship, any partner may determine the partner- 
 ship at any time on giving notice of his 
 intention so to do to all the other partners. 
 
 (2.) Where the partnership has originally 
 
 been constituted by deed, a notice in writing, 
 
 signed by the partner giving it, shall be 
 
 sufficient for this purpose. 
 
 There was formerly some doubt whether, in the case of 
 
 a partnership constituted by deed, and being or having 
 
 though spoken of as such : but for this purpose the principle is 
 the same. 
 
 1 Blisset v. Daniel (1853) 10 Ha. 493. 
 
 2 Barnes v. Youngs [1898] 1 Ch. 414, 67 L. J. Ch. 263. 
 
 3 Russell v. Russell (1880) 14 Ch. D. 471, 49 L. J. Ch. 268. 
 
 G2 
 
84 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 26. 
 
 Where part- 
 nership for 
 term is con- 
 tinued over, 
 continuance 
 on old terms 
 presumed. 
 
 become by expiration of the term provided for (see next 
 section) a partnership at will, a notice of dissolution ought 
 not likewise to be under seal. By the present enactment 
 the better, and certainly more convenient, opinion 1 is 
 established. On principle it would seem that no real 
 objection arises from the rule that covenants entered into 
 by deed can be released only by deed. For all the agree- 
 ments in a partnership contract, whether by deed or with- 
 out deed, are conditional on the continuance of the relation 
 of partnership, save so far as they expressly or by necessary 
 implication have regard to things to be done after dissolu- 
 tion. By a dissolution, therefore, they are not released, 
 but determined. Similarly, a tenant at will might enter 
 into covenants without prejudice to the lessor's right to 
 determine the tenancy by parol. 
 
 27. — (1-) Where a partnership entered into 
 for a fixed term is continued after the term 
 has expired, and without any express new 
 agreement, the rights and duties of the part- 
 ners remain the same as they were at the 
 expiration of the term, so far as is consistent 
 with the incidents of a partnership at will. 2 
 
 (2.) A continuance of the business by the 
 partners or such of them as habitually acted 
 therein during the term, without any settle- 
 ment or liquidation of the partnership affairs, 
 is presumed to be a continuance of the part- 
 nership. 3 
 
 1 LhuUty, 5H0. 
 
 - Cp. I. V. A. •?;->(;. 
 
 3 Parsons v. Haijmird (ISO:}) 4 D. F. J. 4*74. 
 
CONTINUANCE AFTER EXPIRATION OF TERM. 85 
 
 Part I. 
 
 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-part- 
 nership 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. 1 
 
 2. Articles for a partnership for one year contain an arbi- 
 tration clause, and the partnership is continued beyond the 
 year. The arbitration clause is still binding. 3 
 
 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. 3 
 
 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 consistent 
 with a partnership at will. 4 
 
 5. A. and B. enter into partnership for seven years, under 
 articles which empower either partner, if the other neglects 
 
 1 Essex v. Essex (1855) 20 Beav. 442 ; Cox v. Willoughby (1880) 13 
 Ch. D. 863, 49 L. J. Ch. 237. Cookscm v. Coolcson (1837) 8 Sim. 529, 
 must be considered as not being law on this subject. Yates v. Finn 
 (1880) 13 Ch. D. 839, does not break the current of authority, for the 
 opinion there reported incidentally (the case being mainly on other 
 points) on a more or less similar clause turns out to have been justified 
 by the presence of special stipulations not applicable to a partnership 
 at will. See Daw v. Herring [1892] 1 Ch. 284, 289. 
 
 2 Gillett v. Thornton (1875) L. R. 19 Eq. 599, 44 L. J. Ch. 398. 
 
 3 Parsons v. Hayward (1862) 4 D. F. J. 474. 
 
 4 Featherstonhaugh v. Fenwich (1810) 17 Ves. at p. 307, 11 R. R. 
 at p. 81. 
 
 Sect. 27. 
 
86 
 
 PARTNERSHIP ACT, 1S90. 
 
 Part I. 
 ' Seet. 27. 
 
 Where 
 business con- 
 tinued by 
 surviving 
 partners. 
 
 the business, to dissolve the partnership by notice, and pur- 
 chase his share at a valuation. They continue in partnership 
 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. 1 
 
 The same rule has been substantially acted upon in 
 the case of a business being continued by the surviving 
 partners after the death of a member of the original firm ; 3 
 the Court inferred as a fact from their conduct that the 
 business 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. 
 
 In the Scottish appeal of Xeilson v. Mossend Iron Co. 3 
 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 expira- 
 tion 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 stipulations and conditions of the original contract 
 
 1 Clark v. Leach (18U2) 32 Beav. 14, 1 D. J. S. 409 ; see the M. R.'s 
 judgment, 32 Beav. 21. 
 
 2 King v. Chuck (1853) 17 Beav. 325. 
 ■' 11 App. Ca. 298 (1886). 
 
DUTY OF PARTNERS TO RENDER ACCOUNTS, ETC. 87 
 
 remain in force, in so far as these are not inconsistent with Part I. 
 any implied term of the renewed contract." In this case, Sect. 27 
 however, time was of the essence of the condition 
 (pp. 308, 311). 
 
 In a later case 1 it was held that a clause giving one 
 partner an option of buying the other's share within three 
 months " after the expiration or determination of the part- 
 nership by effluxion of time " did apply to the partnership 
 as continued after the expiration of the original term, and 
 that Neilson v. Mossend Iron Co. really confirmed the 
 previous authorities. 
 
 28. Partners are bound to render true Duty of 
 accounts and full information of all things render 
 
 «• i • , i l • , i • accounts, &c. 
 
 artecting the partnership to any partner or his 
 legal representatives. 2 
 
 Where written partnership articles are entered into, a 
 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 
 have been reasonable and useful. Since the Act it may 
 perhaps be safely dispensed with. 
 
 1 Daw v. Herring [1892] 1 Ch. 284, 61 L. J. Ch. 5 (Stirling, J.). 
 
 3 Cp. I. C. A. 257, which reads " to carry on the business of the 
 partnership for the greatest common advantage, to be just and 
 faithful to each other, and to render,'' &c. 
 
PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 29. 
 
 Account- 
 ability of 
 partners for 
 private 
 profits. 
 
 29. — (1.) Every partner must account to the 
 firm for any benefit derived by him without the 
 consent of the other partners from any trans- 
 action concerning the partnership, or from any 
 use by him of the partnership property name or 
 business connection. 1 
 
 (2.) This section applies also to transactions 
 undertaken after a partnership has been dis- 
 solved by the death of a partner, and before 
 the affairs thereof 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 house in which the partnership business is 
 carried on. A. and B. may at their own option treat the 
 renewed lease as partnership property. 3 
 
 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. 3 
 
 2. A., B., C. 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 
 
 1 Op. I. C. A. 258. Per Lindley, L.J., .4ns v. Benham [1891] 
 2 Ch. 244, 255 (in an action brought before the commencement of 
 the Act). 
 
 2 Featherstoiihaugh v. Fcnwick (1810) 17 Ves. 298, 11 E, R. 77 ; 
 r. 0. A. 258, Illust. ft. 
 
 3 Clajif v. Edmondson (1857) 8 D. M. G. 787, 807. 
 
DUTY OF PARTNERS TO RENDER ACCOUNTS, ETC. 89 
 
 letting the other partners know that the sugar is his. The Part I. 
 firm is entitled to the profit made on every such sale. 1 Sect. 29. 
 
 3. A., B. and C. 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 off their hands, pay a 
 premium to A. A. must account to his partners for the money 
 thus received. 3 
 
 i. 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 sur- 
 viving partner renews it. The renewed lease is partnership 
 property. 3 
 
 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. 4 
 
 The general principle is one of those which the law of Parallel rule 
 
 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 account or make any undisclosed profit for himself in 
 
 the business of his agency is a stringent and universal one. 5 
 
 30. H a partner, without the consent of the Duty of 
 
 . . partner not 
 
 other partners, carries on any business ot the to compete 
 
 with firm. 
 
 1 Bentley v. Craven (1853) 18 Beav. 75. 
 
 2 Fawce'tt v. Whitehouse (1829) 1 Euss. & M. 132, 32 E. E. 163. 
 
 3 Clements v. Hall (1857) 2 De G. & J. 173, 186. The surviving 
 partner is sometimes called a trustee or quasi trustee of the partner- 
 ship property. But this use of the term is at least doubtful ; see 
 Lord Westbury's remarks in Knox v. Gye (1871-2) L. E. 5 H. L. at 
 p. 675. 
 
 4 Alder v. Fouracre (1818) 3 Swanst. 489, 19 E. E. 256. 
 » Story on Agency, §§ 210, 211. 
 
90 PARTNERSHIP ACT, 1890. 
 
 Part i. same nature as and competing with that of the 
 
 sect. 30. fi rni; he must account for and pay over to the 
 
 firm all profits made by him in that business. 1 
 
 This is an elementary rule analogous to the last. It 
 follows that no partner can, without the consent of the 
 rest, be a member of another firm carrying on the like 
 business in the same field of competition ; and if that 
 consent 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., C. and D. are the proprietors of a morning 
 newspaper, and A., B. and C. the proprietors of an 
 evening newspaper for which the types and plant of the 
 morning 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. 3 But this rule is not extended to a really 
 different business, though the same knowledge and informa- 
 tion may be useful in both. 3 
 
 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 scope of the partnership business, and who 
 
 1 Cp. I. 0. A. 259. Per Lindley, L.J. [1891] 2 C'h. at p. 255. 
 
 - Glassington v. Thmiiks (1822-3) 1 Sim. & St. 124, 24 R. R. 153. 
 
 3 Aas v. BenJutm [1891J 2 Ch. 244, C. A. 
 
DISSOLUTION OF PARTNERSHIP. 91 
 
 derives no advantage in it from bis position as a partner Part I. 
 or by tbe use of any property of the firm. 1 Sect. 31. 
 
 31. — (1.) An assignment by any partner of Eights of 
 his share in the partnership, either absolute share in 
 or by way of mortgage or redeemable charge, par "'' 
 does not, as against the other partners, entitle 
 the assignee, during the continuance of the 
 partnership, to interfere in the management 
 or administration of the partnership business 
 or affairs, or to require any accounts of the 
 partnership transactions, or to inspect the part- 
 nership books, but entitles the assignee only 
 to receive the share of profits to which the 
 assigning partner would otherwise be entitled, 
 and the assignee must accept the account of 
 profits agreed to by the partners. 
 
 (2.) In case of a dissolution of the partner- 
 ship, whether as respects all the partners or as 
 respects the assigning partner, the assignee is 
 entitled to receive the share of the partnership 
 assets to which the assigning partner is entitled 
 as between himself and the other partners, and, 
 for the purpose of ascertaining that share, to 
 an account as from the date of the dissolution. 
 
 Tbis section may be said to declare existing law, tbougb 
 one or two details were perbaps not covered by authority. 
 See the commentary on sect. 24, sub-sect. 7, above. 
 
 1 Dean v. MacDowell (1877-8) 8 Ch. D. 345, 47 L. J. Ch. 537, 
 explained and followed in Aas v. Benham [1891] 2 Ch. 244, C. A. 
 
92 PARTNERSHIP ACT, 1890. 
 
 Part *■ Dissolution of Partnership and its Consequences. 
 
 Dillon 32. Subject to any agreement between the 
 
 of notice tion partners, a partnership is dissolved — 
 
 (a.) If entered into for a fixed term, by the 
 
 expiration of that term : 
 (b.) If entered into for a single adventure 
 or undertaking, by the termination of that 
 adventure or undertaking : 
 (e.) 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 is 
 dissolved as from the date mentioned in the 
 notice as the date of dissolution, or, if no 
 date is so mentioned, as from the date of 
 the communication of the notice. 
 
 " Where no term is expressly limited for its duration, 
 and there is nothing in the contract to fix it, the partner- 
 ship may he 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." 1 
 
 The dissolution takes place as from the date of the 
 notice, and without regard to the state of mind of the 
 partner to whom the notice is given. Insanity on his part 
 does not make it loss effectual.- Of insanity as a special 
 
 1 Oiiurnhitii v. Manle (1818) 1 Swiinst, at p. 508. 18 R. K. atp. 132. 
 > Mrllnsh \: K,;,i (185!)) -27 lieav. L'3(i ; Jones v. Lloyd (1874) 
 L. R. KS Eq. 2(>5, 43 L. .1. Oh. 82(5. 
 
DISSOLUTION BY BANKRUPTCY, DEATH, ETC. 93 
 
 ground of dissolution when the partnership is not at will Part I. 
 we shall speak presently. A valid notice of dissolution Sect. 32. 
 once given cannot be withdrawn except by consent of all 
 the partners. 1 
 
 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 " without any further act or notice, 
 except in cases provided for in sect. 27, above. 
 
 33. — (1.) Subiect to any agreement between Dissoiutionby 
 
 kjkj. V I J \- ■ v i A bankruptcy, 
 
 the partners, every partnership is dissolved death, or 
 as regards all the partners by the death or 
 bankruptcy of any partner. 2 
 
 (2.) A partnership may, at the option of the 
 other partners, be dissolved if any partner suffers 
 his share of the partnership property to be 
 charged under this Act for his separate debt. 3 
 
 34. A partnership is in every case dissolved Dissoiutionby 
 by the happening of any event which makes it partnership. 
 
 1 Jones v. Lloyd (1874) L. R. 18 Eq. at p. 271. 
 
 2 Before January 1, 1883, if a female partner married without 
 settling her share in the partnership to her separate use, the partner- 
 ship was dissolved (but see Ashworth v. Outram (1877) 5 Oh. Div. 
 923). Me Child* (1874) L. E. 9 Ch. 508, 43 L. J. Bky. 89, 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. c. 75), ss. 1, 2, seems to make it clear that the 
 marriage of a female partner would not now dissolve the partnership, 
 and the amending Act of 1893 (56 & 57 Vict, u 63) seems rather to 
 confirm this. It has been suggested, however, that the marriage 
 might be held a "just and equitable" cause for judicial dissolution 
 under sect. 35 (/). The case of outlawry appears to be purposely 
 passed over by the present Act as having no practical importance. 
 
 ' 3 See sect. 23, p. 71, above. 
 
94 PARTNERSHIP ACT, 1890. 
 
 unlawful for the business of the firm to be 
 carried on or for the members cf the firm to 
 carry it on in partnership. 1 
 
 Illustrations. 
 
 1. A. and B. charter a ship to go to a foreign port and 
 receive a cargo on their joint adventure. ^Var 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. 3 
 
 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. TVar breaks out 
 between England and the country of B.'s domicil. The 
 partnership between A. and B. is dissolved. 3 
 
 Dissolution 35 On application by a partner the Court 
 
 by the Court. SJyJ ' l L J L 
 
 may decree a dissolution of the partnership in 
 any of the following cases : 
 
 (a.) "When a partner is found lunatic by 
 inquisition, 4 or in Scotland by cognition, 
 
 1 Op. I. C. A. 255. 
 
 2 See Esposito v. Bowden (1857) 7 E. & B. 763, 27 L. J. Q. B. 17. 
 
 3 Griswold v. Waddington (1818) (Supreme Court, Xew York), 15 
 Johns. 57 ; 16 ib. 438. 
 
 4 By sect. 119 of the Lunacy Act, 1890 (53 Vict. c. 5), which from 
 May 1, 1890 (see sect. 3), repeals and supersedes the Lunacy Regula- 
 tion Act, 1853, ''where a person being a member of a partnership 
 becomes lunatic, the judge may, by order, dissolve the partnership " 
 (for the jurisdiction of a judge in lunacy, see sect. 108 : it is exercise- 
 able by any one or more of the Lord Chancellor and such judges of 
 the Supreme Court as may be appointed by siyn manual). 
 
 The committee of the estate can be authorized and required, under 
 
GROUNDS OF DISSOLUTION. 95 
 
 or is shown to the satisfaction of the Court ?art i- 
 
 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 or person 
 having title to intervene as by any other 
 partner : l 
 
 (b.) When a partner, other than the partner 
 suing, becomes in any other way perma- 
 nently incapable of performing his part of 
 the partnership contract : 2 
 
 (c.) "When a partner, other than the partner 
 suing, has been guilty of such conduct as, 
 in the opinion of the Court, regard being 
 had to the nature of the business, is calcu- 
 lated to prejudicially affect the carrying on 
 of the business : 3 
 
 (d.) When a partner, other than the partner 
 suing, wilfully or persistently commits a 
 breach of the partnership agreement, or 
 
 the general powers of sects. 120, 124, to do or concur in all acts 
 rendered necessary. The powers of this part of the Act are not 
 confined to lunatics so found by inquisition : for the other categories, 
 see sect: 116. 
 
 1 Lindley, 566—569 ; Jones v. Noy (1833) 2 M. & K. 125, 39 E. E. 
 160 ; Anon. (1855-6) 2 K. & J. 441 ; Leaf v. Coles (1851) 1 D. M. G. 
 171. It is well settled that lunacy does not of itself work a dissolu- 
 tion. Pending an action for dissolution on this ground, the Court 
 can grant an injunction to restrain the defendant from interfering 
 in the partnership business : J. v. S. [1894] 3 Ch. 72, 63 L. J. 
 Ch. 615. 
 
 3 WUtwell v. Arthur (1865) 35 Beav. 140. 
 
 3 Essel v. Hayward (1860) 30 Beav. 158. 
 
 Sect. 35. 
 
96 PARTNERSHIP ACT, 1890. 
 
 Parti. otherwise so conducts himself in matters 
 
 Seot > 36 ' 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 : : 
 (c) When the business of the partnership 
 
 can only be carried on at a loss : 2 
 (/.) "Whenever in any case circumstances have 
 
 arisen which, in the opinion of the Court, 
 
 render it just and equitable that the 
 
 partnership be dissolved. 
 
 It might be difficult to find a reported decision precisely 
 
 in point on every part of this section. There is no doubt, 
 
 however, that the enactment correctly represents the 
 
 modern practice of the Chancery Division. 
 
 Dissolution at It is to be observed that the right of having the partner- 
 suit of partner ,.,.■,-,., ,. .. 
 of unsound ship dissolved in the case oi one partner becoming insane 
 
 is not confined to his fellow-partners. A dissolution may 
 
 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 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. 8 But the enlarged powers 
 
 given to the judge in Lunacy by sect. 116 of the Lunacy 
 
 1 Harrison v. Tentiaiit (1856) 21 Beav. 482. 
 
 - Jennings v. Buddflnj (1856) 3 K. & J. 78 ; and see per Cotton, 
 L.J., 13 Oh. Div. at p. 65. 
 J Jones v. Lloyd (1874) L. R. 18 Eq. 265, 43 L. J. Ch. 826. 
 
dissolution. 
 
 GROUNDS OF DISSOLUTION. 97 
 
 Act, 1890, may now make it unnecessary and undesirable Part I. 
 
 to resort to the Chancery Division. Sect. 35. 
 
 It is rather difficult to fix the point at which acts of a What conduct 
 
 of a partner is 
 partner tending to shake the credit of the firm and the ground for 
 
 other partner's 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 partner'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 preserved if he remained 
 in it. 1 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 confidence among the partners, 
 has been held sufficient ground for a dissolution. 3 
 
 Actual malversation of one partner in the partnership 
 affairs, such as failing to account for sums received, 3 is 
 ground 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, 4 or one partner has habitually charged another, 
 with gross misconduct in the partnership affairs. 
 In Atwood v. Maude 6 Lord Cairns said : — 
 " It is evident . . . that in every partnership . . . such 
 
 1 Anon. (1855-6) 2 K. & J. 441, 452. Qii. is this now the law ? 
 
 2 Harrison v. Tennant (1856) 21 Beav. 482. 
 
 3 C'heesman v. Price (1865) 35 Beav. 142. 
 * Baxter v. West (1860) 1 Dr. & Sm. 173. 
 » Watney v. Wells (1861) 30 Beav. 56 ; Leary v. Shout (1864) 33 
 
 Beav. 582. 
 
 6 L. R. 3 Ob. at p. 373 (1868). 
 
 P. H 
 
98 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I, a state of feeling may arise and exist between the partners 
 Sect. 35. 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 had been accepted 
 to its full extent, in the absence of positive authority, 
 clause (d) of the section now under consideration might, 
 perhaps, have assumed a broader and simpler form. The 
 Act, however, is clearly intended to confirm the existing 
 practice of the Court, and wider language might have been 
 taken to confer some new power. 
 
 Dissolution by order of the Court 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 
 members a right to dissolve the partnership, in which case 
 alone it may relate back to that event. 1 
 
 An arbitration clause including all matters in difference 
 empowers the arbitrator to decide whether the partnership 
 shall be dissolved and to award a dissolution. 3 
 
 Rights of 
 persons deal- 
 ing with firm 
 against ap- 
 parent mem- 
 bers of firm. 
 
 36. — (1-) Where a person deals with a firm 
 after a change in its constitution he is entitled 
 to treat all apparent members of the old firm 
 as still being members of the firm until he has 
 notice of the change. 3 
 
 (•2.) An advertisement in the London Gazette 
 as to a firm whose principal place of business is 
 in England or Wales, in the Edinburgh Gazette 
 
 1 Lyon v. Turddcll (1881) 17 Cli. Div. 529, 50 L. J. Ch. 571. 
 - Vnwdmj v. Simpson [1896] 1 Ch. 166, 65 L. J. Ch. 369 
 ' Op. 1 . 0. A. 2(U. 
 
LIABILITIES AFTER DISSOLUTION. 99 
 
 as to a firm whose principal place of business is Part i. 
 in Scotland, and in the Dublin Gazette as to a Sect 36 ' 
 firm whose principal place of business is in 
 Ireland, shall be notice as to persons who had 
 not dealings with the firm before the date of the 
 dissolution or change so advertised. 
 
 (3.) The estate of a partner who dies, or who 
 becomes bankrupt, or of a partner who, not 
 having been known to the person dealing with 
 the firm to be a partner, retires from the firm, 
 is not liable for partnership debts contracted 
 after the date of the death, bankruptcy, or 
 retirement respectively. l 
 
 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 ; but they 
 do not discontinue the business of the firm or give notice of 
 the dissolution. On the 1st of February A. indorses a bill in 
 the partnership name to C, who is not aware of the dissolution. 
 The firm is liable on the bill. 3 
 
 2. A bill is drawn on a firm in its usual name of the M. 
 Company, and accepted by an authorised agent. A. was 
 formerly a partner in the firm, but not to the knowledge of 
 B., the holder of the bill, and ceased to be so before the date 
 of the bill. B. cannot sue A. upon the bill. 3 
 
 1 Costs incurred in an action authorised by the firm before disso- 
 lution of the partnership are not affected by this sub-sect., for they 
 are within the obligation of the original retainer so long as it has not 
 been determined : Court v. Berlin [1897] 2 Q. B. 396, 66 L. J. Q. B. 
 714, C. A. 
 
 2 Ex parte Robinson (1833) 3 D. & Ch. at p. 388. 
 
 3 Carter v. Wludky (1830) 1 B. & Ad. U, 35 B. B. 199. 
 
 H 2 
 
100 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 36. 
 
 3. A. is a partner with other persons in a bank. A. dies, 
 and the survivors continue the business under the same firm. 
 Afterwards the firm becomes insolvent. A.'s estate is liable 
 to customers of the bank for balances due to them at A.'s 
 death, so far as they still remain due, and for other partner- 
 ship liabilities incurred before A.'s death ■} but not for any 
 debts contracted or liabilities incurred by the firm towards 
 customers after A.'s death. 2 
 
 In the case of liabilities of the firm which have arisen after 
 A.'s death, it makes no difference that at the time when the 
 partnership liability arose the customer believed A. to be still 
 living and a member of the firm. 3 
 
 Sub-sect. 2 does not, of course, exclude the effect of notice 
 in fact by any other means. Even as regards old customers, 
 notice in fact, once proved, is sufficient, and "it matters 
 not by what means, for the Partnership Act, 1890, does 
 not require, nor has it ever been held that any particular 
 formality must be observed," 4 or, if observed, has any 
 special virtue. 
 
 Eight of 
 partners to 
 notify dis- 
 solution. 
 
 37. On the dissolution of a partnership or 
 retirement of a partner any partner may pub- 
 licly notify the same, and may require the 
 other partner or partners to concur for that 
 purpose in all necessary or proper acts, if any, 
 
 1 Dcmpw* v. Xohle (1816) 1 Mer. 52!), 15 R. R. 151 ; Sleeeh's Vtrne 
 (1816) 1 M.m-. at p. 539, 15 R. R. 155 ; Clayton's ('«.*• (1816) at p. 572, 
 15 R. R. 161. 
 
 ■ Brice's Cits,- (1816) 1 Mer. 622, 15 R. R. 171. 
 
 3 Houlton's Case (1816) 1 Mer. 616, 15 R. R. 16!). The judgment 
 itself in this case is not reported; but it appeals by the marginal 
 note and the context that it followed Brice's Case. The authority of 
 Houlton's disc is not affected by anything in the Act : Friend v. 
 Ynung [181)7] 2 Oh. 421, 428, 66 L. J. t'h. 7:37. 
 
 1 Lindley, 2150. 
 
RIGHTS AFTER DISSOLUTION. 101 
 
 which cannot be done without his or their Parti, 
 concurrence. sect. »7. 
 
 In Troughton v. Hunter 1 it appeared to be the practice 
 of the London Gazette Office not to insert a notice of 
 dissolution unless signed by all the partners ; and the 
 defendant, who had refused to sign a notice, was decreed 
 to do all things necessary for procuring notice of the dis- 
 solution to be inserted in the Gazette. A retiring partner 
 may be ordered to sign a notice of dissolution for insertion 
 in the Gazette, even if no other specific relief is claimed. 3 
 
 38. After the dissolution of a partnership continuing 
 the authority of each partner to bind the firm, partner/for 
 and the other rights and obligations of the Shgup. 
 partners, continue notwithstanding the disso- 
 lution so far as may be necessary to wind up 
 the affairs of the partnership, and to complete 
 transactions begun but unfinished at the time 
 of the dissolution, 3 but not otherwise. 
 
 Provided that the firm is in no case bound 
 by the acts of a partner who has become 
 bankrupt, 4 but this proviso does not affect the 
 liability of any person who has after the bank- 
 ruptcy represented himself or knowingly suffered 
 himself to be represented as a partner of the 
 bankrupt. 
 
 1 18 Beav. 470 (1854). 
 
 2 Hendry v. Turner (1886) 32 Cli. D. 355, 55 L. J. Ch. 562. 
 
 3 Lyon v. Haynes (1843) 5 M. & Ur. 504, 541. 
 
 4 Bankruptcy . relates back to the completion of the act of 
 bankruptcy on which a receiving order is made : Bankruptcy Act, 
 1883, s. 43. 
 
102 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 38. 
 
 Illustrations. 
 
 1. A. and B. are partners. A. becomes bankrupt. B. gives 
 acceptances of the firm as security for an existing partner- 
 ship debt 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 bills. 1 
 
 2. A. and B. are partners. A. becomes bankrupt. B. 
 continues to carry on the trade of the firm, and pays partner- 
 ship moneys into a bank to meet current bills of the firm. 
 The bank is entitled to this money as against A.'s trustee 
 in bankruptcy. 2 
 
 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, notwithstanding 
 the dissolution of the partnership wrought by A.'s bankruptcy, 
 sell any of the partnership goods to pay the debts of the firm, 3 
 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 rail- 
 way 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 
 authorise the bankers to sell the shares to indemnify 
 themselves. 6 
 
 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 
 
 1 Ex parte Robinson (1833") 3 Dva. & Ch. 376, Coop. t. Broinjh. 162, 
 38 R. R. 39. 
 
 2 Womlbrithjc v. Sicann (1833) 4 B. & Ad. 633, 38 R. R. 337. 
 
 3 Fra.vr v. Kershaw (1856) -2 K. & J. 496. The authority to sell 
 is " personal to him in his capacity as partner: " p. 501. 
 
 4 ./'o.i; v. Hanbiiry (1776) C'owp. 445. 
 
 5 Hutchart v. Ih-ester (185.V 4 T>. M. G. 54i\ 
 
BIGHTS AFTER DISSOLUTION. 103 
 
 firm) B. is not bound thereby, 1 unless he has specially Parti, 
 authorised the continued use of the name for that purpose. 2 sect. 38. 
 
 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 authorise the allowance of interest, in the 
 event of a dissolution, for the interval between the dissolution 
 and the final settlement of the partnership accounts. 3 
 
 7. A., B. and C. 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 bill. 4 
 
 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., 5 pays C.'s debt. This is an unauthorised payment as 
 against the firm, and if the firm afterwards becomes bankrupt, 
 C. must repay the money to the trustee of the joint estate. 6 
 
 'J. 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. 7 
 
 10. [A. and B. being partners, draw a bill 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. 8 ] 
 
 1 Heath v. Sanson, (1832) 4 B. & Ad. 172, 38 R. R 237. 
 
 2 Smith v. Winter (1838J 4M.&W. 454. 
 
 3 Barfield v. Loughborough (1872) L. R. 8 (Jh. 1, 42 L. J. Oh. 179. 
 
 4 Thomason v. Frere (1808) 10 East, 418, 10 R. R. 341. 
 
 5 If C. had not notice of the act of bankruptcy, he would be 
 protected by sect. 49 (a) of the Bankruptcy Act, 1883. 
 
 6 Gravenv. Mmondson (1830) 6 Bing. 734, 31 R. R. 529. 
 ? Lacy v. Woolcott (1823) 2 D. & R. 458. 
 
 8 Lewis v. Reilly (1841) 1 Q. B. 349 : " It is perhaps doing no 
 
104 PARTNERSHIP ACT, 1890. 
 
 Part I. 11. [A., B. and C. are partners in a woollen mill. A. dies, 
 
 Sect. 38. and B. and C. 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 C. 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 executors. 1 ] 
 
 12. A. and B. are partners. A. files a liquidation petition, 
 and a receiver of his property is appointed. B. is still entitled 
 to get in the partnership assets, and to use for that purpose 
 the name of the trustee in A.'s bankruptcy, on giving him 
 an indemnity. 2 
 
 On this subject the language of the Indian Contract 
 Act (s. 263) is more general. It says : 
 
 "After a dissolution of partnership, the rights and 
 obligations of the partners continue in all things necessary 
 for winding up the business of the partnership." 
 
 And Lord Eldon spoke more than once of a partnership 
 
 violence to language to say that the partnership could not be dissolved 
 as to this bill, so as to prevent it from being indorsed by either 
 defendant in the name of the firm," Lord Denmnn, C.J., at p. 351. 
 But it is difficult to admit the correctness of the decision : see 
 Lindley, 225, 226. The earlier case of Smith v. Whiter (1838) 4 
 M. & W. 454 (not cited in Lewis v. Rcilhi), assumes that authority in 
 fact must be shown for such a use of the partnership name even for 
 the purpose of liquidating the affairs of the firm. 
 
 1 Buckley v. liorhr (1851) 6 Ex. 164, 20 L. J. Ex. 114. This 
 decision is not consistent with the general current of authorities, and 
 is probably wrong. It is expressly dissented from by Lord Lindley 
 (Lindley, p. 351), who further states that it was disapproved in an 
 unreported case by James, L..T. 
 
 ' Ex part r Owen (1884) 13 <). B. ])iv. 113, 53 L. J. q. B. 863. 
 
RIGHTS AFTER DISSOLUTION. 105 
 
 after dissolution as being in one sense not dissolved until Part I. 
 the affairs of the firm are wound up. 1 Sect. 38. 
 
 But Lord Lindley has shown i that a more guarded 
 statement is desirable. He points out that the strongest 
 •case on the subject is (with the doubtful exception of 
 Leivls v. ReiUy, Illust, 10, above) Butchart v. Dresser 
 (lllust. 4) ; and this decided at most " that in the event of 
 a dissolution it is competent for one partner to dispose of 
 the partnership assets for partnership purposes." Paulus 
 incidentally mentions the rule as existing in some such 
 limited form in the Roman law : — 
 
 " Si vivo Titio negotia eius administrare coepi, inter- 
 mittere mortuo eo non debeo ; nova tamen inchoare necesse 
 mihi non est, vetere explicare ac conservare necessarium 
 est; ut accidit, cum alter ex sociis mortuns est." 3 
 
 The present section puts an end to any doubt on the 
 matter in England by declaring the law in the form 
 approved by Lord Lindley. 
 
 39. On the dissolution of a partnership Eights of 
 every partner is entitled, as against the other application of 
 
 , „ t 11 1 • ■ partnership 
 
 partners m the firm, and all persons claiming property. 
 through them in respect of their interests as 
 partners, to have the property of the partner- 
 ship 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 respec- 
 tively after deducting what may be due from 
 
 1 1 Swanst. 508 : 2 Russ. 337, 342, 18 R. R. 132 (1818). 
 
 2 Lindley, 227, 228. 
 
 3 D. 3, 5, de negot. gest. 21, § 2. 
 
10(5 PARTNERSHIP ACT, 1890. 
 
 Part i. them as partners to the firm ; and for that 
 
 sect. 39. purpose any partner or his representatives may 
 
 on the termination of the partnership apply to 
 
 the Court to wind up the business and affairs of 
 
 the firm. 1 
 
 Iluisiraliuiis. 
 
 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. 2 
 
 2. A creditor of one partner in a firm on a separate account 
 unconnected with the partnership takes his 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 ; 3 but in such deduction debts due to all or any of the 
 other partners otherwise ihan on the partnership account are 
 not to be included. 4 
 
 ;!. 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 profits. 5 A.'s 
 estate is entitled not only to a moiety of the partnership's 
 
 1 Compare I. C. A. 265. There is no absolute right to have a 
 receiver appointed after dissolution : but the Court will generally 
 appoint a receiver on the application of a partner. See Pint v. 
 Roncoroni [1MI2] 1 Ch. 633, (il L. J. Oh. 218. As to the principles of 
 apportionment where a partner dies after the account day of the firm 
 and before the account has been made up, see Hunter v. Bowling 
 [1895] 2 Ch. 223, 04 L. J. Ch. 713. 
 
 • Croft v. Pike (1733) 3 P. Wins. 180. See below, pp. 147 sqq., as 
 to the administration of partnership estates. 
 
 3 /;*««( v. M/>(1749) 1 Yes. Sen. 2:59, 242; per Lord Manstield, 
 Pox v. Jlunhury (1776) Cowp. at p. 449. 
 
 4 Skipp v. Httnrood (1747) 2 Swunst. "iMi. 
 6 See sect. 42, below. 
 
107 
 
 PAllTNEKti LIEN. 
 
 property, but to a lien upon the other moiety for the share of part I. 
 profits due to the estate. 1 Sect~39 ~ 
 
 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 mort- 
 gaged 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. 2 
 
 The general rule has been thus stated: that "on the Nature of the 
 dissolution of the partnership all the property belonging or quasi-lien. 
 to the partnership shall be sold, and the proceeds of the 
 sale, after discharging all the partnership debts and 
 liabilities, shall be divided among the partners according 
 to their respective shares in the capital." 3 
 
 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 full 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 
 
 1 Stoekeii v. Dawson (1845) 9 Beav. 239. 
 
 2 Re Langmead's Trusts (1855) 20 Beav. 20, 7 1). M. G. 353. 
 
 3 Darby v. Darby (1856) 3 Drew, at p. 503. 
 
106 PARTNERSHIP ACT, 1S90. 
 
 Part I. familiar in several heads of the Common Law. The 
 Sect. 39. possessory lien of an unpaid 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. 1 
 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 whom The lien, or quasi-lien, 3 as it is sometimes called, of each 
 partner on the partnership property 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 partner's share takes it subject 
 to all claims of the other partners (sect. 31). But a pur- 
 chaser or pledgee of partnership property from a partner, 
 unless he has notice of an actual want of authority to 
 dispose of it, is entitled to assume that his money will be 
 properly applied for partnership purposes, and may rely 
 on the disposing partner's receipt as a complete discharge. 3 
 Likewise the individual partners cannot require a judgment 
 creditor of the firm to pursue his remedy against the partner- 
 ship property before having recourse to the separate property 
 of the partners ; for, as we have seen above (pp. 41, 4"2), 
 English law does not recognise the firm as having rights or 
 liabilities distinct from those of the individual partners, 
 and a judgment against 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 
 
 1 On the still unsullied question of an unpaid vendor's rights in 
 this respect, see Page v. Cotrasjee Eduljee (]S(i6) L. R, 1 P. 0. 145. 
 
 2 25 lieav, 280 (1858}. 
 
 5 Lamjnmtil's 7 nut* (1855) 20 l'.eav. 20, 7 D. M. G. 353; see 
 lllust. 4, last. pa^'e. 
 
PARTNERS LIEN. 109 
 
 seems to be nothing to alter this in the Eule of Court now Part I. 
 in force as to judgments against partners in the name of Sect. 39. 
 the firm. 1 Creditors, on the other hand, have no specific 
 rights against any property of the firm except such as they 
 may acquire by actually taking it in execution. 2 
 
 During a partnership the lien in question attaches to all Applies only 
 partnerhip property for the time being. Upon a dissolution property at ^ 
 it extends only to the partnership property existing as f„ t *n ° f diss °" 
 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. 3 
 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. 4 
 
 1 Kules of the Supreme Court, Order XLVIIIa. r. 8 (No. 648 h), 
 pp. 138-141, below. 
 
 ■ Stocken v. Dawson (1845) 9 Beav. 239. 
 
 3 Payne v. Hornby (1858) 25 Beav. 280, 286-7. 
 
 4 This 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. Skip (1749) 1 Ves. 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 
 Buclcnall v. Roiston (1709), Pre. Oh. 285, 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. 
 Hornby. 
 
110 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 39. 
 
 General power 
 of Court not 
 excluded by 
 clause as to 
 dividing 
 assets. 
 
 Disposal of 
 goodwill on 
 dissolution. 
 
 Rights of 
 partners as to 
 goodwill. 
 
 Eights and 
 duties of 
 vendor and 
 purchaser of 
 goodwill. 
 
 The presence in partnership articles of a clause providing 
 for division of the assets on a dissolution does not exclude 
 the general power of the Court to direct a sale of the 
 business as a going concern and appoint a receiver and 
 
 manager ' 
 
 Unit's tis to tin' disposal of Goodwill. 
 
 The Act does not make any express provision for dis- 
 posing of the goodwill on the dissolution of a firm. 
 Probably this is due to the consideration that the rules 
 of law relating to goodwill are not confined to cases where 
 a business has been carried on in partnership, and there- 
 fore do not belong to the law of partnership in any exact 
 sense. Nevertheless the rules have been settled chiefly 
 by decisions in partnership cases, and the question of 
 goodwill is one of those which ought always to be con- 
 sidered and provided for in the formation of a partnership, 
 and constantly has to be considered on its dissolution, 
 whether provided for or not. Hence it seems proper to 
 retain here the attempt to formulate these rules which was 
 made in this work in its previous form of an experi- 
 mental digest. The following statement is believed to 
 be substantially correct : — 
 
 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. - 
 
 Where the goodwill of a business, whether carried on in 
 partnership or not, is sold, the rights and duties of the 
 vendor and purchaser are determined by the following 
 
 1 Ttujlor v. Nmtc (1888) ;?!) Cli. D. 53S, 57 L. J. Cli. 1044. 
 
 ' Lindley, 445. In other words, the goodwill, and therefore also 
 the lirm-iinme, is part of the partnership assets : Icni v. Walker 
 (187D) 10 Cli. Div. 436, 440, 48 L. J. Ch. 073. 
 
DISPOSAL OF GOODWILL ON DISSOLUTION. Ill 
 
 rules in the absence of any special agreement excluding or Part I. 
 varying their effect : — Sect. 39. 
 
 (a.) The purchaser alone may represent himself as 
 continuing or succeeding to the business of the vendor. 1 
 
 (6.) The vendor may nevertheless carry on a similar 
 business in competition with the purchaser, but not under 
 the name of the former firm, nor so as to represent himself 
 as continuing or succeeding to the same business. 1 
 
 (c.) The vendor may publicly advertise his business, but 
 may not canvass the customers of the former firm. 3 
 
 (d.) The sale carries the exclusive right to use the name 
 of the former firm, 8 subject to this qualification, that the 
 purchaser may use the vendor's name only " so long and 
 so far as he does not by so doing expose him to any 
 liability." 4 The purchaser has the right to trade as the 
 vendor's successor, but not to hold out the vendor as still 
 in the business and personally answerable. A purchaser 
 of "assets" without any restrictive terms, or a partner 
 retaining the " assets " on dissolution, is entitled to the 
 
 1 Churton v. Douglas (1859) Johns. 174. But the vendor's wife, 
 having separate estate, cannot he restrained from carrying on a 
 ■competing business on her own account and in her own name : Smith 
 v. Hancock [1894] 2 Ch. 377, 63 L. J. Ch. 477, C. A. (diss. 
 Kay, L.J.). 
 
 ' Trego v. Hunt [1896] A. C. 7, 65 L. J. Ch. 1, where the House of 
 Lords restored the authority of Labouchere v. Dawson (1872) L. R. 13 
 Eq. 322, against the Court of Appeal. 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. 
 
 5 Levy v. Walker (1879) 10 Ch. Div. 436, 48 L. J. Ch. 273 ; Be 
 David and Matthews [1999] 1 Ch. 378, 168 L. J. Ch. 185. - 
 
 4 Thynne v. Shove (1890) 45 Ch. Div. 577, 582, 59 L. J. Ch. 509. 
 
 5 45 Ch. Div. at p. 580; Ohurlon v. Douglas (1859) Johns, at 
 p. 190. 
 
112 PARTNERSHIP ACT, 1890. 
 
 Part I. goodwill, with its incidental rights. 1 The effect of special 
 Sect. 39. terms, if any, must be considered in each case as they 
 occur. 2 On a dissolution without any special provision 
 naming or including goodwill, or restricting the use of the 
 firm-name, either partner may use the old name, provided 
 he does not thereby expose a former partner to any sub- 
 stantial risk. Whether there is such risk in the particular 
 case is a question of fact depending on the nature of the 
 business and other circumstances. 3 
 
 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, and D. 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 
 business of his own next door to them, but not under the 
 firm of A. and Co. 4 
 
 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 ; B 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." 6 
 
 1 Jenniiujs v. Jainimts [1898] 1 Oh. 378, 07 L. J. Cli. 190. 
 
 - See Pearson v. Pearson (,15<S4) 27 Ch. Div. 14.3, 54 L. J. Ch. 32, 
 not overruled on this point. 
 
 ■' Burvhdl v. IVihk [1900] 1 Cli. 551, (59 L. J. Cli. 314, A. C. 
 
 I Chiuion v. lhmjlas (ISM) Johns. 174. 
 
 5 Hall v. Harrows (18U3) 4 1). J. S. at p. 159. 
 
 II Lord Eldon's decree in Cook v, Collingridijc (1825), given in 27 
 
INCIDENTS OF GOODWILL. 113 
 
 The term goodwill is a commercial rather than a legal Part I. 
 one, nor is its use confined to the affairs of partnership Sect. 39. 
 firms* It is well understood in business, hut not easy to ^jdentTol: 
 define. It has been described as " the benefit arising from " goodwill." 
 connexion and reputation," 1 which includes " the proba- 
 bility of the old customers going to the new firm " which 
 has acquired the business : 3 but this last phrase is not of 
 itself adequate. 3 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 
 with such addition or qualification, if any, as may be 
 necessary for the protection of the vendor from liability or 
 exposure to litigation under the doctrine of "holding 
 out "), 4 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 ; 5 - 
 and he may publish to the world, by advertisements or 
 otherwise, the fact that he carries on such business. But he 
 must not specially solicit the customers of the old firm to 
 transfer their custom to him ; 6 and he must not use the 
 
 lieav. 456, 459, 23 R. R. 767. The declarations and directions there 
 inserted contain an exposition of the nature and legal incidents of 
 goodwill which is still of high authority. See now on the position of 
 a purchaser of goodwill, and the principles of valuation, per Romer, J., 
 in Be David and Matthews [1899] 1 Ch; 378, 68 L. J. Oh. 185. 
 
 1 Lindley, 441. 
 
 2 Lord Romilly, M.R., Labouchere v. Dawson (1872) L. R. 13 Eq. 
 at p. 324 ; and see Llewellyn v. Rutherford (1875) L. R. 10 C. P. 456, 
 44 L. J. 0. P. 281 ; Wedderburn v.. Wedderbum (1855-6) 22 Beav. 
 at p. 104. 
 
 3 Per Lord Macnaghten, Trego v. Hunt [1896] A. C. 7, 23. 
 
 4 Burchellv. Wilde, note ', p. 112, above. 
 1 Ohurton v. Douglas (1859) Johns. 174. 
 
 6 Trego v. Hunt [1896] A. C. 7, 65 L. J. Ch. 1, reversing the decision 
 of the C. A. [1895] 1 Ch. 462, 64 L. J. 392, and overruling Pearson v. 
 
 P. I 
 
114 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 39. 
 
 Goodwill 
 does not 
 " survive.' 
 
 name of the old firm so as to represent that he is continuing, 
 not merely a similar business, but the same business. " You 
 are not to say, I am the owner of that which I have sold." l 
 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 part of its goodwill. 3 
 It was formerly supposed that on the death of a partner 
 in a firm the goodwill mirvired — 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. 3 Surviving or continuing 
 partners may in various ways have the benefit of the good- 
 will, and an intention to let them have it may be shown by 
 conduct as well as words. " When a partner retires from 
 a firm, assenting to or acquiescing in the retention by the 
 other partners of possession of the old place of business 
 and the future conduct of the business by them under the 
 old name, the goodwill remains with the latter as of 
 course." * But this really amounts to saying that in such 
 a case the goodwill ceases to have any separate value. The 
 
 Pearson (1884) 27 Ch. D. 145, on the point of principle. The dissent- 
 ing judgment of Lindley, L.J., in the last-named case was therefore 
 correct. An express provision in the articles that an outgoing partner 
 may start a similar business in the neighbourhood is merely declaratory, 
 and does not exclude the rule against soliciting old customers : 
 Oillingham v. Beddow [1900] 2 Ch. 242, 69 L. J. Ch. 527. 
 
 1 Churton v. Douglas (1859) Johns, at p. 193. 
 
 2 Churton v. Douglas (1859) Johns, at pp. 197, 198. As to the 
 right to the exclusive use of a trade name, see pp. 22 — 25, above. 
 
 3 The notion of the goodwill surviving is expressly contradicted, 
 for instance, in Smith v. Everett (1859) 27 Beav. 446. For the history 
 of the modern law, see the judgment of Romer, J., Re Daiid and 
 Matthews [1899] 1 Ch. 378, 382. 
 
 < Mvm-ndex v. Holt (1888) 128 U. S. 514, 522. 
 
INCIDENTS OF GOODWILL. 115 
 
 retiring partner has nothing left that he could give except Part I. 
 an undertaking not to compete with the firm ; and this, as Sect. 39. 
 we have seen, is not implied even in an express assignment 
 of goodwill. 1 
 
 It seems that in the business of solicitors goodwill in the 
 ordinary sense hardly exists. 3 The same reasons might 
 apply to any other business depending on personal and 
 confidential relations, and wholly or mainly independent 
 of local connexion or the resorting of customers to a 
 particular place. 3 
 
 It also seems that after a dissolution each of the partners Eight of 
 in the dissolved firm or his representatives may, in the restrain use of 
 absence of any agreement to the contrary, restrain any j^me 6 P 
 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. 4 
 
 There is now sufficient authority for accepting this as a 
 necessary consequence of the principles above stated. 5 If 
 any partner who may require it has a right to have the 
 
 1 Cp. Lindley, 446. 
 
 2 See Austen v. Boys (1858) 2 De G. & J. 626, 635 ; Arundell v. 
 Bell (C. A. 1883) 31 W. R. 477 ; but in Barchell v. Wilde (note 3 , 
 p. 112, above) it is assumed throughout that it does exist in some 
 sense and for some purposes. 
 
 3 As in the case of commission merchants : Steuart v. Gladstone 
 <1879) 10 Ch. Div. 626, 657 ; cp. Fair v. Pearce (1818) 3 Madd. 74, 
 18 R. R. 196. 
 
 4 Be David and Mattliews [1899] 1 Ch. 378 ; Lindley, 447. 
 
 ■> As to Banks v. Gibson (1865) 34 Beav. 566, which raises a diffi- 
 culty, that was a case, "according to the view of the judge who 
 decided it, where co-partners had agreed on dissolution to divide the 
 assets, including the goodwill, so as to allow either partner to use 
 the name of the partnership firm " : per Romer, J., Re David and 
 Matthews [1899] 1 Ch. 378, 384. See also per Lindley, M.R., in 
 Burchell v. Wilde [1900] 1 Ch. at p. 563, 69 L. J. Ch. 314. ' 
 
 12 
 
116 
 
 Purt I. 
 Sect. 39. 
 
 Apportion- 
 ment of 
 premium 
 where part- 
 nership pre- 
 maturely 
 dissolved. 
 
 PARTNERSHIP ACT, 1890. 
 
 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 partnership 
 affairs is pending one partner must not use the name or 
 property of the partnership to carry on business on his own 
 sole account, since it is the duty of every partner to do 
 nothing to prejudice the saleable value of the partnership 
 property until the sale. 1 This question does not in any case 
 affect the independent right of a late partner who is living 
 and not bankrupt to restrain 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. 3 
 
 After the affairs of a dissolved firm are wound up every 
 partner is free to use the firm-name in the absence of 
 agreement to the contrary, 3 provided that he does not 
 expose any late partner to liability. 4 
 
 40. Where one partner has paid a premium 
 to another on entering into a partnership for a 
 fixed term, and the partnership is dissolved 
 before the expiration of that term otherwise 
 than by the death of a partner, 5 the Court ma)" 
 order the repayment of the premium, or of 
 such part thereof as it thinks just, having 
 regard to the terms of the partnership contract 
 
 1 Timer v. Major (1862) 3 Gift'. 442. 
 
 1 Scott v. Rowland (1872) 20 V\'. R. 508 ; see p. 112, above. 
 
 3 Per James, L.J., Levy v. Walker (1879) 10 Ch. Div. 445, 48 L. J. 
 Ch. 273. 
 
 * Burchell v. Wilde [1900] 1 Ch. 551, 69 L. J. Ch. 314, C. A. 
 
 6 Limlley, 584; Whwcitp v. Hughes (1871) L. R. 6 C. P. 78, 40 
 L. J. U. P. 104. 
 
REPAYMENT OE PREMIUM. 117 
 
 and to the length of time during which the Parti, 
 partnership has continued ; unless Sect 40< 
 
 (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 
 
 (b) the partnership has been dissolved by 
 an agreement containing no provision for 
 a return of any part of the premium. 
 
 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. 1 
 
 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 
 ±erm B. becomes bankrupc. 
 
 It has been held that B.'s estate is entitled to the whole 
 premium, because A. bought the right of becoming his 
 partner subject to the chance of the partnership being prer 
 maturely determined by ordinary contingencies, such as death 
 or bankruptcy. 2 
 
 And also that B.'s estate must return or give credit for a 
 
 1 Hamil v. Stokes (1817) 4 Pri. 161 ; and tetter in Dan. 20, 18 
 E. E. 690. 
 
 " Akhurst 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 which 
 the case can be distinguished from Freelancl v. Stansfeld; see Ahoood 
 r. Maude (1868) L. E. 3 Ch. at p. 372. 
 
118 PARTNERSHIP ACT, 1890. 
 
 Part I. proportionate part of the premium, as the bankruptcy which 
 Sect. 40. determined the partnership was B.'s own act. 1 
 
 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. 2 
 
 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. 3 
 
 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 repayable. 4 
 
 1 Freeland v. Stansfeld (1852-4) 2 Urn. & G. 479. This is probably 
 the correct view. 
 
 2 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) L. B. 16 Eq. 606, 42 L. J. 
 Ch. 668. 
 
 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 
 JE100 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 Freelmid v. Stansfeld, note (1). 
 
 4 Aireij v. Borhmu (1861) 29 Beav. 620. 
 
REPAYMENT OF PREMIUM. 119 
 
 6. A. takes B. into partnership for seven years, knowing Part I. 
 him to be inexperienced in the business, and requires him on sect. 40. 
 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 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. 1 
 
 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 for the return of 
 any part of the premium. A. cannot afterwards claim to have 
 any part of it returned. 3 
 
 The terms of the Act leave a wide discretion to the Eule as given 
 Court, and the earlier decisions cannot be safely treated as Maude. 
 obsolete. At the same time its language appears to be 
 founded on the judgment in Atwood v. Maude, 3 still the 
 latest case on the subject in a Court of Appeal. And it 
 may perhaps be concluded that now, in accordance with 
 that case, the proportionate part to be returned is, in the 
 absence of special reasons to the contrary, a sum bearing 
 the same proportion to the whole premium as the unexpired 
 part of the partnership term originally contracted for bears 
 to the whole term. Conversely, where the premium pay- 
 able by a partner in fault is still unpaid, payment of it 
 may be ordered. 4 It is now understood that the terms of 
 dissolution are a matter of judicial discretion for the judge 
 
 i Atwood v. Maude (1868) L. E. 3 Ch. 369. 
 
 2 Lee v. Page (1861) 30 L. J. Ch. 857. 
 
 3 L. K. 3 Ch.369 (1868). In Wilson v. Johnstone (1873) L. R. 16 
 Eq. 606, 42 L. J. Ch. 668, Wiokens, V.-C, proposed a somewhat 
 different rule, which it is now unnecessary to consider. 
 
 4 Bluck v. Capstick (1879) 12 Ch. D..863, 48 L. J. Ch. 766. 
 
120 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. who hears the cause, and that his decision will not be 
 Sect. 40. interfered with by the Court of Appeal except for strong 
 reasons. 1 
 
 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. 2 
 
 Arbitrators under a common arbitration clause in 
 partnership articles (not expressly providing for reference 
 of any question as to return of premium) have power to 
 award a return of the premium or part thereof as part of 
 the terms of a dissolution. 3 
 
 Eights where 
 partnership 
 dissolved for 
 fraud or 
 misrepresen- 
 tation. 
 
 41. Where a partnership contract is rescinded 
 on the ground of the fraud or misrepresentation 
 of one of the parties thereto, the party entitled 
 to rescind is, without prejudice to any other 
 right, entitled — 
 
 (a) to a lien on, or right of retention of, the 
 surplus of the partnership assets, after 
 satisfying the partnership liabilities, for 
 any sum of money paid by him for the 
 purchase of a share in the partnership and 
 for any capital contributed by him, and is* 
 
 (b) to stand in the place of the creditors of 
 the firm for any payments made by him in 
 respect of the partnership liabilities, and 
 
 (c) to be indemnified by the person guilty of 
 
 1 Lyon v. Timlddl (1881) 17 Cli. Div. 529. 50 L. J. Ch. 571. 
 
 2 Edmonds v. Robinson (1885) 29 Ch. D. 170, 54 L. J. Ch. 586. 
 ■'• Iklfidd v. Bourne [1894] 1 Ch. 521, 63 L. J. Ch. 104. 
 
 '' Some such words as " also entitled" appear to have dropped out 
 at the ond of this clause, unless " is " was retained by a clerical error. 
 
PROFITS AFTER DISSOLUTION. 121 
 
 the fraud or making the representation Part i. 
 against all the debts and liabilities of the Sect ' 41 - 
 firm. 1 
 
 This enactment hardly needs explanation. The principles 
 on which contracts may be set aside for fraud or misrepre- 
 sentation belong to the general law of contract, and can 
 be adequately considered only in that connexion. It is 
 proper to bear in mind that the contract of partnership 
 is one of those which are said to be uberrima fidei. 
 Refraining from active falsehood in word or deed is not 
 enough ; the utmost good faith is required. And this 
 ■duty " extends to persons negotiating for a partnership, 
 but between whom no partnership as yet exists." s The 
 most extensive applications of the principle, however, have 
 been in the questions arising out of the formation of com- 
 panies. The wholesome development of the law in this 
 ■direction has been, as I venture to think, unhappily checked 
 -by the decision of the House of Lords in Derry v. Peek 
 {1889, 14 App. Ca. 337), and the remedy provided in con- 
 sequence of that decision by the Directors' Liability Act, 
 1890 (53 & 54 Vict. c. 64), is far from being satisfactory. 
 
 42 — (1.) Where any member of a firm has Bight of out- 
 
 v ' J going partner 
 
 died or otherwise ceased to be a partner, and in certain 
 
 cases to 
 
 the surviving or continuing partners carry on share profits 
 
 . made after 
 
 the business of the firm with its capital or dissolution, 
 assets without any final settlement of accounts 
 
 1 On this section generally, cp. Lindley, 484 sqq.; Myeockv. Beatson 
 .(1879) 13 Ch. D. 384, 49 L. J. Ch. 127 ; as to clause (c) : Newbicjging 
 v. Adam (1886) 34 Ch. Div. 582, 56 L. J. Ch. 275. 
 
 ' Lindley, 314, 325, and see the present writer's " Principles of 
 Contract," 6th ed. pp. 529, 530. 
 
122 PARTNERSHIP ACT, 1890. 
 
 Part i. as between the firm and the outgoing partner or 
 
 sect. 42. hi s estate, then, 1 in the absence of any agree- 
 
 ment to the contrary, the outgoing partner or 
 his estate is entitled at the option of himself 
 or his representatives to such share of the 
 profits made since the dissolution as the Court 
 may find to be attributable to the use of his 
 share of the partnership assets, or to interest at. 
 the rate of five per cent, per annum on the 
 amount of his share of the partnership assets. 2 
 
 (2.) Provided that where by the partnership, 
 contract an option is given to surviving or con- 
 tinuing partners to purchase the interest of a 
 deceased 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 
 
 1 Perhaps a clerical error for " there ; " but the sense is un- 
 affected. 
 
 2 Per Lord Cairns, I>e v. Foster (1874) L. R. 7 H. L. at p. 329 ;. 
 Yates v. Finn (1880) 13 Cli. D. 839, 49 L. J. Ch. 188. How far the 
 profits made since the dissolution are attributable to the outgoing, 
 partner's 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 . See per Turner, L.J., in 
 Simpson v. Cliapmnn (1853) 4 D. M. G. at pp. 171, 172, following and 
 approving Wigram, V.-C.'s exposition in Jl'illett v. Blanford (1841) 1 
 Ha. 253, 266, 272. There is no fixed rule that the profits are divisible- 
 in the same manner as if the partnership had not ce.ised : Brown v. 
 Ik TaM (1 82 1) Jac. at p. 296 ; 23 R. R. 68. Indeed, the presumption, 
 appears to be in favour of apportioning profits to capital without 
 regard to the proportions in which they were divisible during the- 
 partnership : Ytttrx v. Finn (18SO) 13 Ch. D. at p. 843. 
 
PHOFITS AFTER BISSOLVTIOX. 123 
 
 further or other share of profits ; but if any Part i. 
 partner assuming to act in exercise of the sect. 42. 
 . option does not in all material respects comply 
 with the terms thereof, he is liable to account 
 under the foregoing provisions of this section. 
 
 Illustrations to subs. (1). 
 
 1. A., B. and C. are partners in a manufacture of machinery. 
 A. is entitled to three-eighths of the partnership property and 
 profits. A. becomes 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 bankruptcy until the final liquidation of 
 the partnership affairs. 1 
 
 2. A. and B. are partners. The partnership is dissolved 
 by consent, and it is agreed that the assets and business of 
 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, 
 ile must account to B. for the profits thus made. 2 
 
 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. 3 
 
 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 
 
 1 Crawshay v. Collins (1826) 2 Russ. 325, 342-345, 347, 26 R. R. 83. 
 
 2 Turner v. Major (1862) 3 Gift'. 442. 
 
 3 Brown v. Be Tastet (1821) Jac. 284, 299, 23 R. R. 59 ; cp. Yates 
 v. *'mmi(1880) 13 Ch. D. 839, 49 L. J. Oh. 188. 
 
124 PARTNERSHIP A CT, 1890. 
 
 Parti. interest to his legatees, upon the estimated value of his share 
 Sect. 42. 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 endangered 
 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 circumstances the 
 profits made in the business alter A.'s death are chiefly attri- 
 butable, 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 participate in such 
 profits to any greater extent than the amounts already paid or 
 accounted for to them in respect of interest on the estimated 
 value of A.'s share. 1 
 
 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 
 the value of the goodwill itself as a partnership asset. The 
 evidence of experts in the particular business will be admitted, 
 if necessary, to ascertain how much of the profits was 
 attributable to goodwill. 3 
 
 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 skill in the business to 
 create a goodwill of appreciable value for the firm. A. con- 
 tinues the business of the firm with the assistance of other 
 skilled persons. B.'s estate is [probably] not entitled to any 
 share of the profits made alter 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 
 
 WciMerburn v. Width rlmni (1855-li) 22 Beav. 84, 123, 124. 
 Sw 22 Beav. at pp. 104, 112, 122 (1855-6). 
 
PROFITS AFTER DISSOLUTION. 125 
 
 goodwill for the firm. B.'s estate is [probably] entitled to a Part I. 
 share of the profits made after B.'s death. 1 Sect 48 
 
 Illustrations to siib-s. (2). 
 
 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, 
 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 0. or the 
 survivor of them shall enter into new articles of partnership, 
 pay out in a specified manner the value of the part of A.'s 
 interest taken over, and give certain securities to A.'s repre- 
 sentatives. 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. 
 C. must account to A.'s estate for subsequent profits. 3 
 
 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. ascertain 
 the amount of his share, and pay interest thereon to his repre- 
 sentatives, 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 payment 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. 3 
 
 The reader who is already acquainted with the cases Claims 
 now cited by way of illustration wiil perceive that several yivino- OT 
 
 1 These last two cases are given by Wigram, V.-C, in his judgment e 
 in IVillett v. Blcmford (1841) 1 Ha. at p. 271. 
 
 2 WilUtt v. Blcmford (1841) 1 Ha. 253, 264. 
 
 3 Vyse v. Foster (1874) L. E. 7 H. L. 318, 44 L. J. Ch. 37. 
 
126 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. 
 Sect. 42. 
 
 partners as 
 executors or 
 trustees. 
 
 These dis- 
 tinguished by . ■, 
 further illus- t0 De 
 trations. 
 
 of them have been designedly simplified in statement. It 
 often happens that a partner in a firm disposing of his 
 interest in it by will, and not desiring the affairs of the 
 firm to be exposed to the interference of strangers, makes 
 his fellow partners or some of them his executors or 
 trustees, or includes one or more of them among the 
 persons appointed to those offices. If, having done this, 
 he dies while the partnership is subsisting, there may 
 arise at the same time, and either wholly or in part in the 
 same persons, two kinds of duties 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 interested in that estate; and this is deter- 
 mined by principles which are really independent of the 
 law of partnership. 
 
 The nature of these complications and the distinctions 
 observed may be exhibited by some further 
 illustrations. 
 
 («.) 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 liability. B. is also 
 answerable as executor to the persons beneficially interested in 
 A.'s estate for the improper employment of his testator's assets. 
 
 (ft.) A., a trader, appoints B. his executor and dies. B. 
 enters into partnership with C. 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 
 
PROFITS AFTER DISSOLUTION. 127 
 
 B. to A.'s residuary legatees, not as partners, but as having part I. 
 knowingly made themselves parties to the breach of trust "^sect. 42. 
 ■committed by B. 1 
 
 (c.) A. being in partnership with B. and C. appoints B. his 
 executor and dies. B. and 0. continue to employ A.'s capital 
 in the business. B. is liable as executor to account for the 
 profits received by himself from the use of A.'s capital, but 
 not for the whole profits received therefrom by the firm. 3 It 
 is not certain to what extent B. would be liable if B. and C. 
 were sued together. 3 
 
 (d.) A. and B. are partners in trade. A. dies, having 
 appointed C. and D. his executors, and authorised 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 since 
 the time when A.'s capital ought to have been finally with- 
 drawn, inasmuch as C. and D. themselves are liable to A.'s 
 legatees only to make good the amount of the capital with 
 interest. 4 
 
 («.) 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. 5 B. cannot be charged as executor with a greater 
 share of profits in respect of his testator's capital than he has 
 actually received, 6 and it is doubtful whether he can be charged 
 with profits at all. 5 
 
 1 Flockton v. Running (1868) L. R. 8 Ch. 323, n. 
 s Per Lord Cairns, L. R. 7 H. L. 334 (1874). 
 
 3 Lindley, 589, 598. 
 
 4 Stroud v. Owyer (1860) 28 Beav. 130. 
 
 5 Vyse v. Foster (1874) L. R. 7 H. L. 318, 44 L. J. Ch. 37 ; see per 
 Lord Selborne, L. R. 7 H. L. at p. 346. 
 
 6 Jones v. Foxall (1852) 15 Beav. 388 ; per James, L.J., Vyse v. 
 Foster (1872) L. R. 8 Ch. at pp. 333, 334. 
 
128 
 
 PARTNERSHIP ACT, 1890. 
 
 Part I. (/.) A., B. and C. are partners in a bank which is carried 
 
 Sect. 42~ 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. are 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 account. 
 In like manner B., C. and D. are [probably] not accountable 
 to A.'s estate as partm rs. 1 
 
 Claims must In these "mixed and difficult" cases, as Lord Lindley 
 
 be distinct ....-,... 
 
 and against calls them,- it is important for persons seeking to assert 
 
 FnpropeT" 68 tlleir r] ^ ht to an accouat of profits to make up their 
 capacity. minds distinctly in what capacity and on the score of what 
 
 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. 3 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 
 
 1 Simpson v. Chapman (1S53) 4 Y>. II. G. 154. 
 
 2 Lindlt-y, 589. 
 
 J Si'o Simpmin v. Clia/mian (18531 4 J). M. G. 154 ; !';/»> v. Foster 
 (1874) L. U. 7 H. L. 318, 44 L. J. Cli. 37 ; Travis v. Milne (1851) 9 
 Ha. at p. 149. 
 
CLAIMS AGAINST PARTNERS AS TRUSTEES. 129 
 
 partner at all, and were not necessary or proper parties to Part I. 
 be sued. 1 sect. 42. 
 
 Again, the right, where it exists, is an alternative right and must be 
 
 . for profits 
 
 to interest on the capital improperly retained in the busi- alone, or for 
 
 , j.j^j.1 Ci ii-i t interest alone, 
 
 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 
 
 inadmissible, 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 nothing else ; " a claim for profits as to part of the 
 
 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 be 
 
 allowed. 2 
 
 It is a question, however, whether success in asserting Account of 
 claims of this kind is not in practice little more profitable dissolution 
 than failure ; for an account of profits after dissolution u ^ le y S ln 
 has seldom or never been known to produce any real benefit 
 to the parties who obtained it. 3 
 
 Where interest is given, it is generally simple interest What interest 
 at 5 per cent. It does not appear that a partner as such glTen ' 
 is ever charged with compound interest in these cases. 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 
 distinct and specific breach of trust.* 
 
 1 Brawn v. De Tastet (1821) Jac. 284, 23 R. R. 59 ; see p. 80, above. 
 
 2 Per Lord Cairns, Vyse v. Foster (1874) L. R. 7 H. L. at p. 336. 
 
 J Lindley, 5th ed. 536, note (o) : " The writer is not aware of any 
 instance in which such a judgment has bten vvurked out and has 
 resulted beneficially to the person in whose favour it was made." 
 
 4 As in Jones v. Foxall (1852) 15 Beav. 388. 
 
 P. K 
 
130 
 
 Part I, 
 Sect. 43. 
 
 Betiring or 
 deceased 
 partner's 
 share to be 
 a debt. 
 
 Surviving 
 partner not a 
 trustee. 
 
 Statute of 
 Limitations. 
 
 Rule for dis- 
 tribution of 
 assets on final 
 settlement 
 of accounts. 
 
 PARTNERSHIP ACT, 181K). 
 
 43. Subject to any agreement between the 
 partners, the amount clue 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 is a debt accruing at the date of the 
 dissolution or death. 
 
 A surviving partner has sometimes been said to be a 
 trustee for the deceased partner's representatives in respect 
 of his interest in the partnership ; but this is a meta- 
 phorical and inaccurate expression. The claim of the 
 representatives against the surviving partner is in the 
 nature of a simple contract debt, and is subject to the 
 Statute of Limitations, 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. 1 Such 
 is the practical effect of the law, now settled for more than 
 twenty years, which is declared by this section. 
 
 The mode of ascertaining an outgoing or deceased 
 partner's share must of course depend on the partner- 
 ship agreement. Very commonly the last annual account 
 is taken as fixing the share. 2 
 
 44. In settling accounts between the partners 
 after a dissolution of partnership, the following 
 rules shall , subject to any agreement, be observed : 
 
 (a.) Losses, including losses and deficiencies 
 
 1 Knox. v. ffi/e (1871 --2) L. E. 5 H. L. 656, 42 L. J. Ch. 234, see 
 ]h.t Lord Westbuvy. 
 
 ■ As to the construction of such clauses, Hunter v. Dmoling [1893] 
 3 Cli. 212, IHL.J. Oh. 017, V. A. 
 
DISTRIBUTION OF ASSETS. 131 
 
 of capital, 1 shall be paid first out of profits, fart i. 
 next out of capital, and lastly, if necessary, Seot 44, 
 by trie partners individually in the propor- 
 tion in which they were entitled to share 
 profits : 
 (b.) The assets of the firm including the sums, 
 if any, 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. 2 
 
 1 Nowell v. Nowell (1869) L. R. 7 Eq. 538 ; Whitcomb v. Converse 
 (1875) 119 Mass. 38. In other words, money due from the firm to 
 a partner in respect of capital contributed, not being a distinct 
 advance, is differently 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. 
 
 2 Sub-sect, (b) is almost verbally from Lindley, 5th ed. 402. Com- 
 pare the form of order fully stated in the judgment of the Judicial 
 
 K2 
 
132 PARTNERSHIP ACT, 1890. 
 
 Parti. Partners cannot, of course, escape by any agreement 
 
 Sect. 44. among themselves from the necessity of paying the external 
 debts of the firm in full before they divide profits or even 
 repay advances as between themselves. But they may 
 make any agreement they please as to the proportions in 
 which, as between themselves, partners shall be bound to 
 contribute and entitled to be recouped. The rules given 
 in this section are only rules of administration founded on 
 the usual course of business, and expressing what is fairly 
 presumed to be the intention of the partners, but if any 
 different intention is shown in a particular case by the 
 terms of the partnership articles or otherwise, that intention 
 so shown must prevail. 
 
 Supplemental. 
 Definitions 45. In this Act, unless the contrary intention 
 
 of " court " 
 
 and " busi- appears, — 
 
 The expression " Court " includes every Court 
 and judge having jurisdiction in the case. 
 
 Committee, Binney v. Mittrie (1886) 12 App. Ca. 160, 165. Where 
 partnership assets are administered by the Court in an action, debts 
 from the firm to a partner : Potter v. Jackson (1880) 13 Ch. D. 845, 
 49 L. J. Ch. 232, and also what is due to him in respect of capital : 
 Ross v. White [1894] 3 Ch. 326, C. A., are payable out of the assets 
 before the costs of the action. Before any partner can take his costs 
 out of the assets, he must make good what is due to the assets (per 
 Lindley, L.J. [1894] 3 Ch. at p. 336). A partner's share of the assets 
 is only what remains after payment of joint debts. If, therefore, a 
 partner has given a charge on his separate real estate as security for 
 joint debts, and at his death the joint estate is solvent, there is really 
 no case of dispute between different persons claiming through the 
 deceased, and Locke King's Act (now officially named the Real 
 KM ate Charges Act, 1854) does not apply : Re Ritson [1899] 1 Ch. 
 liS, 68 L. J. Ch. 77, C. A. 
 
SUPPLEMENTAL. 133 
 
 The expression "business" includes every Fart i. 
 trade, occupation, or profession. Sect 48 - 
 
 46. The rules of equity and of common law saving for 
 applicable to partnership shall continue in force equity and 
 
 , j. ,i ■ . , , -.1 ,i common law, 
 
 except so tar as they are inconsistent with the 
 express provisions of this Act. 
 
 As to this section, see the Preface, p. vii., above. 
 
 47. (1-) In the application of this Act to Provision as 
 
 a j.i n p to bankruptcy 
 
 bcotland the bankruptcy of a firm or of an in Scotland. 
 individual shall mean sequestration under the 
 Bankruptcy (Scotland) Acts, and also in the 
 case of an individual the issue against him of a 
 decree of cessio bonorum. 
 
 (2.) Nothing in this Act shall alter the rules 
 of the law of Scotland relating to the bank- 
 ruptcy of a firm or of the individual partners 
 thereof. 
 
 48. The Acts mentioned in the schedule to Eepeai. 
 this Act are hereby repealed to the extent men- 
 tioned in the third column of that schedule. 
 
 49. This Act shall come into operation on oommence- 
 the first day of January one thousand eight 
 hundred and ninety-one. 
 
 50. This Act may be cited as the Partner- short title. 
 ship Act, 1890. 
 
134 
 
 Part I. 
 Sect. 50 
 
 Section 48. 
 
 Session and 
 Chapter. 
 
 1!) k 20 Vict. 
 
 e. 60. 
 Ill k 20 Vict. 
 
 c. 97. 
 28 & 29 Vict. 
 
 c. si;. 
 
 FAliTSEliHUll' ACT, 1890. 
 
 SCHEDULE. 
 Enactments Repealed. 
 
 Title or Short Title. 
 
 The Mercantile Law Amendment 
 (Scotland) Act, 1*56. 
 
 The Mercantile Law Amendment 
 Act, 1856. 
 
 An Act to amend the law of part- 
 nership. 
 
 Extent of Repeal. 
 
 Section seven. 1 
 
 Section four. 1 
 
 The whole Act.- 
 
 1 Superseded by .sect. 18, above. 
 
 2 Superseded by sect. 2, above. 
 
135 
 
 PART II. 
 
 PROCEDURE AND ADMINISTRATION. 
 
 CHAPTER I. 
 
 Procedure in Actions by and against Partners. 
 
 The Rules of Court, and the rules established by Part II. 
 decisions in bankruptcy, and now partly declared in the ap ' ' 
 
 Bankruptcy Act, deal with various points exclusively or ^h 618 -^!, 
 specially relating to partnership affairs, and therefore the Act. 
 important for persons concerned therein, either as parties 
 or as legal advisers, to have some knowledge of. These 
 are not touched by the present Act, and it will still be 
 convenient to give some account of them, though it is not 
 possible to make a work of this kind a complete guide to 
 the practice under the Rules. 
 
 The previous Rules of Court applicable to actions by and 
 against firms were superseded in June, 1891, by Order 
 XLVIIIa., which in part amends and in part consoli- 
 dates their substance. The terms of the Order are as 
 follows : — 
 
 Actions by and against Firms and Persons carrying 
 on Business in Names other than their own. 
 
 (1.) Any two or more persons claiming or 
 being liable as co-partners and carrying on 
 
136 PROCEDURE AND ADMINISTRATION. 
 
 Part ii. business within the jurisdiction l may sue or be 
 
 sued in the name of the respective firms, if 
 any, of which such persons were co-partners at 
 the time 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 and addresses 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. 
 
 (2.) When a writ is sued out by partners in 
 the name of their firm, the plaintiffs or their 
 solicitors shall, on demand in writing by 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. And if the 
 plaintiffs or their solicitors shall fail to comply 
 with such demand, all proceedings 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 
 
 1 This applies to a foreign or colonial firm, the members of which 
 are resident out of the jurisdiction ; the test is whether they carry on 
 business within the jurisdiction, not where they reside : Worcester 
 City, etc. Hanking Co. v. Firbank [1894] 1 Q. B. 784, 63 L. J. Q. B. 
 542. 
 
ACTIONS BY AND AGAINST FIRMS. 137 
 
 they had been named as the plaintiffs in the Fartn 
 
 writ. But all the proceedings shall, neverthe- 
 less, continue in the name of the firm. 
 
 (3.) Where persons are sued as partners in 
 the name of their firm under Rule (1), the writ 
 shall be served either upon any one or more 
 of the partners or at the principal place, within 
 the jurisdiction, of the business of the partner- 
 ship upon any person having at the time of 
 service the control or management of the part- 
 nership business there ; and, subject to these 
 rules, such service shall be deemed good service 
 upon the firm so sued, whether any of the 
 members thereof are out of the jurisdiction or 
 not, and no leave to issue a writ against them 
 shall be necessary : 1 provided that in the case 
 of a co-partnership which has been dissolved 
 to the knowledge of the plaintiff before the com- 
 mencement of the action, the writ of summons 
 shall be served upon every person within the 
 jurisdiction sought to be made liable. 2 
 
 (4.) Where a writ is issued against a firm, 
 and is served as directed by Eule (3), every 
 
 1 This rule does not extend the substantial jurisdiction of English 
 Courts against foreigners resident outside the jurisdiction. See St. 
 Gobain, &c. Go. v. Hoyermann's Agency [1893] 2 Q. B. 96, 62 L. J. Q. B. 
 485, U. A., approving Russell v. Cambeforte (1889) 23 Q. B. Div. 526, 
 58 L. J. Q. B. 498. But a learned writer in the Law Quarterly 
 Review, x. 197, thinks these authorities hardly reconcilable with 
 Worcester Gity, cfcc. Banking Co. v. Firbank (last note). 
 
 - Wigram v. Cox, Sons, Buckley & Go. [1894] 1 Q. B. 792, 63 L. J. 
 Q. B. 751. 
 
 Chap. I. 
 
13 8 WOCKDCRE AND AIMlXIXTJiATIOX. 
 
 Part ii. person upon whom it is served shall be in- 
 
 formed by notice in writing given at the time 
 of such service whether he is served as a partner 
 or as a person having the control or manage- 
 ment of the partnership business, or in both 
 characters. In default of such notice, the 
 person served shall be deemed to be served as 
 a partner. 
 
 (5.) Where persons are sued as partners in 
 the name of their firm, they shall appear indi- 
 vidually in their own names ; but all subse- 
 quent proceedings shall, nevertheless, continue 
 in the name of the firm. 1 
 
 (6.) Where a writ is served under Rule (3) 
 upon a person having the control or manage- 
 ment of the partnership business, no appear- 
 ance by him shall be necessary unless he is a 
 member of the firm sued. 
 
 (7.) Any person served as a partner under 
 Ride (3) may enter an appearance under 
 
 1 Even if one of the partneis sued in the firm-name dies after writ 
 and appearance, the survivor must not put in a merely personal 
 defence : he must defend in the name and on behalf of the firm : 
 Ellis v. Wathxov [1899] 1 Q. B. 714, 68 L. J. Q. B. 604, C. A. In 
 an action against a firm, the appearance of one out of several partners 
 is sufficient to ground proceedings under Ord. XIV. r. 1 : Lysaght v. 
 Clnii- [1891] 1 Q. B. :m-1, ">36 ; and service, under Ord. IX. r. 6 (see 
 now Ord. XLVIIIa. r. 3), on one of two foreigners trading in 
 partnership in England was held good : lb. A solicitor employed by 
 the managing partner of a firm to defend an action brought against 
 the firm has authority to enter an appearance in the names of each 
 of the partners individually : Tomliwmii v. Hruiuhurith [1896] 1 Q. B. 
 386, c.-, I,. ,1. il U. ;;os, (\ A. 
 
ACTIONS BY AND AGAINST FlUMS. 139 
 
 protest, denying that he is a partner, but such Part n 
 
 Chap. I 
 
 appearance shall not preclude the plaintiff from 
 otherwise serving the firm and obtaining judg- 
 ment against the firm in default of appearance 
 if no partner has entered an appearance in the 
 ordinary form. 
 
 (8.) Where a judgment or order is against 
 a firm, execution may issue : 
 
 (a.) Against any property of the partnership 
 
 within the jurisdiction ; 
 (b.) Against any person who has appeared in 
 his own name under Eule (5) or (6), or 
 who has admitted on the pleadings that 
 he is, or who has been adjudged to be a 
 partner ; 
 (c) Against any person who has been indi- 
 vidually served, as a partner, with the writ 
 of summons, and has failed to appear. 1 
 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 determined in any manner in which any 
 
 1 Rule 8 applies only where there has been no dissolution, or 
 none to the knowledge of the plaintiff: per Cave, J. [1894] 1 Q. B. 
 at p. 795. 
 
14 PROCEDURE AND ADMINISTRATION. 
 
 Part ii. issue or question in an action may be tried 
 
 Chap. I 
 
 and determined. 1 But except as against any 
 property of the partnership, a judgment against 
 a firm shall not render liable, release, or other- 
 wise affect any member thereof who was out of 
 the jurisdiction when the writ was issued, and 
 who has not appeared to the writ unless he 
 has been made a party to the action under 
 Order XI., or has been served within the juris- 
 diction after the writ in the action was issued. 
 
 (9.) Debts owing from a firm carrying on 
 business within the jurisdiction may be attached 
 under Order XLV., although one or more 
 members of such firm may be resident abroad : 
 provided that any person having the control or 
 management of the partnership business or any 
 member of the firm within the jurisdiction is 
 served with the garnishee order. An appear- 
 ance by any member pursuant to an order 
 shall be a sufficient appearance by the firm. 
 
 (10.) The above rules shall apply to actions 
 between a firm and one or more of its members, 
 and to actions between firms having one or 
 more members in common, provided such firm 
 or firms carry on business within the jurisdic- 
 tion, but no exection shall be issued in such 
 actions without leave of the Court or a judge, 
 
 1 But the defendant must have been first served with the writ in 
 accordance with Rule 3 : U'igntm. v. Cox [1894] 1 Q. B. 792, 63 L. J. 
 Q. B. 751. 
 
ACTION H BY AND AGAINST FIRMS. 141 
 
 and on an application for leave to issue such Part n. 
 
 rr Chap. I. 
 
 execution all such accounts and inquiries may 
 
 be directed to be taken and made, and direc- 
 tions given, as may be just. 1 
 
 (11.) Any person carrying on business within 
 the jurisdiction in a name or style other than 
 his own name may be sued in such name or 
 style as if it were a firm-name ; and, so far as 
 the nature of the case will permit, all rules 
 relating to proceedings against firms shall 
 apply. 2 
 
 In bankruptcy an order of adjudication cannot be made Adjudication 
 against a firm in tbe firm-name. It must be made against bankruptcy, 
 tbe partners individually, 3 and tbeir personal liability to 
 sucb proceedings cannot be enlarged by previous action 
 against the firm. A married woman trading separately from 
 her husband under a firm-name cannot be made bankrupt 
 on a bankruptcy notice founded on a judgment obtained 
 against her in the firm-name. 4 Where there is an infant 
 partner a receiving order cannot be made against the firm, 
 but it may be made against the firm " other than " the 
 
 1 This rule finally removes the doubt whether the firm-name can 
 be used in actions between a firm and any of its own members, or 
 between firms having a member in common. 
 
 2 This does not apply to a foreigner resident out of the jurisdiction : 
 Be Bernaks v. New York Herald [1893] 2 Q. B. 97, n., 62 L. J. Q. B. 
 385 ; cp. St. Oobain v. Hoyermann's Agency [1893] 2 Q. B. 96, 62 
 L. J. Q. B. 485, C. A. A domiciled Scot resident in Scotland is 
 a foreigner for this purpose : if he is to be sued in this country he 
 must be sued under Ord. XI., and not this Order : Maclver v. Burns 
 [1895] 2 Ch. 630, 64 L. J. Ch. 681, C. A. 
 
 3 General Rules of 1886, 264. 
 
 * Re Frances Handford & Co. [1899] 1 Q. B. 566, 68 L. J. Q. B. 386, 
 C. A. 
 
142 PROCEDURE AND ADMINISTRATION. 
 
 Part II. infant partner. 1 A creditor who has obtained judgment 
 
 '' against the firm, but has not got leave to issue individual 
 
 execution under this order, cannot issue a bankruptcy 
 notice under the Act of 1883 against individual members 
 , of the firm. 2 
 
 Service out of Partnership actions often involve questions as to service 
 Action! 8 " out of the jurisdiction. Order XI. (revised E. S. C, 
 
 Nov. 1893) does not, however, contain any provisions 
 exclusively or specially relating to such actions. 
 
 1 Lovell v. Beauchamp [1894] A. C. 607, 63 L. J. Q. B. 802. 
 The same rule would seem to hold as to judgments against a firm. 
 
 2 Ex parte Ide (1886) 17 Q. B. Div. 755, 55 L. J. Q. B. 484. 
 
BANKRUPTCY PROCEDURE. 143 
 
 CHAPTEE II. 
 Procedure in Bankruptcy against Partners. 
 
 1. "Wheke two or more bankruptcy peti- ^'n 
 tions are presented against the same debtor or consolidation 
 against ioint debtors, the Court may consolidate ? f P r0M fi- 
 
 u " •> ings under 
 
 the proceedings, or any of them, on such terms j°intand 
 as the Court thinks fit." 1 petitions. 
 
 Illustration. 
 
 A. and B. are partners in trade, A. being the sole managing 
 partner. C, a creditor of the 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. 3 
 
 2. " Any creditor whose debt is sufficient creditor of 
 
 ■ii 1 • ii • ■ nrai ma y 
 
 to entitle him to present a bankruptcy petition present peti- 
 
 against all the partners of a firm may present a one partner. 
 
 petition against any one or more partners of 
 
 the firm without including the others." 3 
 
 3. " Where there are more respondents than court may 
 one to a petition, the Court may dismiss the tion as to 1_ 
 
 .... , j. , i .,1 , some respon- 
 
 petition as to one or more of them without dents only. 
 
 1 Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 106. 
 
 - Ex parte Mackenzie (1875) L. E. 20 Eq. 758, 44 L. J. Bky. 117. 
 
 3 Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 110. 
 
144 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 
 Chap. II. 
 
 One trustee 
 for property 
 of partners in 
 one firm 
 separately 
 bankrupt. 
 
 Creditor of 
 firm may 
 prove in 
 separate 
 bankruptcy 
 for purpose 
 of voting. 
 
 prejudice to the effect of the petition as against 
 the other or others of them." 1 
 
 4. "Where a receiving order has been made 
 on a bankruptcy petition against or by one 
 member of a partnership, any other bankruptcy 
 petition against or by a member of the same 
 partnership shall be filed in or transferred to 
 the Court in which the first mentioned petition 
 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 consolidating the pro- 
 ceedings under the petitions as it thinks just." 2 
 
 5. "If a receiving order is made against 
 one partner of a firm, any creditor to whom 
 that partner is indebted jointly with the other 
 partners of the firm, or any of them, may prove 
 his debt for the purpose of voting at any 
 meeting of creditors, and shall be entitled to 
 vote thereat." 3 
 
 1 Bankruptcy Act, 1883 (46 & 47 Vict, c. 52), s. 111. 
 
 2 lb. 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) 
 L. R. 19 Eq. 2f>(>, 44 L. J. P>ky. 40 ; Re JFaddeU's Contract (1876) 
 L. B. 2 Cli. II. 17-2, 45 L. J. Oh. 047 ; and see Ebbs v. Boulnois (1875) 
 L. R. 10 Oh. 47!), 44 L. J. Oh. li!ll. There is jurisdiction to con- 
 solidate proceedings under separate receiving orders even if made 
 after n dissolution • Re Abbott [1894] 1 Q. B. 442, 63 L. J. Q. B. 253. 
 
 3 Hi. sehed. 1, rule 13. As to the distribution of the estates, see 
 further, Chap. 3, pars. 1-4, below. 
 
BANKRUPTCY PROCEDURE. 145 
 
 6. " (1.) Where one partner of a firm is Partn. 
 
 Chap. II. 
 
 adjudged bankrupt, a creditor to whom the „— — : — 
 
 J ° . . Dividends of 
 
 bankrupt is indebted -jointly with the other joint and 
 
 separate 
 
 partners of the firm, or any of them, shall not properties. 
 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, 1 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 
 received by each property." 2 
 
 7. " Where a member of a partnership is Actions by 
 adjudged bankrupt, the Court may authorise solvent 
 the trustee to commence and prosecute any par 
 action in the names of the trustee and of the 
 bankrupt's partner ; and any 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 
 
 1 See Ex parte Dickin (1875) L. R. 20 Eq. 767, 44 L. J. Bky. 113. 
 
 2 Bankruptcy Act, 1883, s. 59. 
 
 P. L 
 
146 PROCEDURE AND ADMINISTRATION. 
 
 Part ii. shall be given to him, and he may show cause 
 
 against it, and on his application the Court 
 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 
 
 Bankruptcy Act, 1883, s. 113. 
 
ADMINISTRATION OF ESTATES. 147 
 
 CHAPTEE III. 
 Administration of Partnership Estates. 
 I . In the administration by the High Court Part n. 
 
 J Chap. III. 
 
 of Justice of the estates of deceased partners — — 
 
 x General rule 
 
 and of bankrupt and insolvent partners, the of administra- 
 tion as to 
 following rules are observed, subject to the joint and 
 
 , . „ separate 
 
 exceptions mentioned in the two following estate. 
 paragraphs : — 
 
 The partnership property is applied as joint 
 estate in payment of the debts of the firm, 1 
 and the separate property of each partner is 
 applied as separate estate in payment of his 
 separate debts. 
 
 After such payment the surplus, if any, of 
 
 the joint estate is applied in payment of the 
 
 separate debts of the partners, or the surplus, 
 
 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. 
 
 1 That is, to persons other than partners : see par. 4, p. 158, below. 
 
 l2 
 
14 8 PROCEDURE AND ADMINISTRATION. 
 
 Part II. The payments thus made to creditors of the firm must then 
 
 Chap. III. t, e a i[ 0W ed by B. in account with A.'s estate as payments 
 
 made on behalf of the firm, and A.'s estate will be credited 
 
 accordingly in ascertaining what is A.'s share of the partnership 
 
 property. 1 
 
 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. 2 
 
 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 
 respectively : and the same rule applies if both A. and B. have 
 died before the administration takes place. 3 
 
 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 which satisfy 
 it only in pare. 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. 4 
 
 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 
 
 1 Eith/emtii v. Clare (1854) 19 Beav. at p. 116. 
 
 - mi 
 
 -< lb. at pp. 116, 117. 
 
 1 Lothie v. Prichard (1863) 1 D. J. S. 610. 
 
ADMINISTRATION OF ESTATES. 149 
 
 date of A.'s death is not converted into A.'s separate property Part II. 
 by the provisions of the partnership articles, and such pro- Chap, in. 
 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 pay the creditors of the firm. 1 
 
 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 
 apportioned 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. 2 
 
 7. A., B., C. and D. 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 provisions 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. andD., applied in payment 
 of their debts in preference to the creditors of the new firm 
 of C. and D.s 
 
 This rule lias been repeatedly laid down in its general 
 form as a well-established one. 
 
 1 Ex parte Morley (1873) L. R. 8 Ch. 1U26. Compare Ex parte 
 Butcher (1880) 13 Ch. Div. 465, » similar case, in which this decision 
 was followed. 
 
 - Ex parte Dear (1876) 1 Ch. Div. 514, 45 L. J. Bky. 22. 
 
 •' He Simpson (1874) L. R. 9 Ch. 572. 43 L. J. Bky. 147. This was 
 a peculiar case. 
 
15 1'ROCEDUIIK AND ADMINISTRATION. 
 
 Part II. " Upon a joint bankruptcy or insolvency, the joint estate 
 
 cha,v - IIL is the fund primarily liable, and the separate estate is only 
 doTO the"' 8 brought in in case of a surplus remaining after the separate 
 rule. creditors have been satisfied out of it." 1 
 
 " 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 applies to the administration 
 of estates in Equity as well as in Bankruptcy. 2 
 
 " The joint estate must be applied first in payment of 
 joint creditors, and the separate estate in payment of 
 separate creditors, and only tbe surplus of each estate is to 
 be applied in satisfaction of the other class of creditors." 3 
 
 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 applicable 
 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 respective 
 separate estates in proportion to the right and interest of 
 each partner in the joint estate."' 
 
 But this statutory declaration seems not to have 
 
 1 Rolfc v. Flower (1866) L. E. 1 P. C. at p. 48. 
 
 2 Lodge v. Prirhtnl (1863) 1 D. J. S. at pp. 613, 614, per Turner, 
 L.J. The Supreme Court of Judicature Act, 1875, s. 10, assimilates 
 the rules of administration of deceased persons' estates to those " in 
 force lor 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. 
 
 J Ex ■parte Dear (1876) 1 Oh. Div. at p. 519, per James, L.J. ; Ex 
 parte Morley (1873) L. 1!. 8 Oh. at p. 1032, 
 
JOINT AND SEPARATE ESTATES. 151 
 
 abrogated the power of the Court to consolidate the estates Part II. 
 
 if they are " inextricably blended." 1 — — — 
 
 The subject was also carefully considered by Lord 
 
 Romilly in Ridgway v. Clare. 2 The rules there laid down 
 
 by him for the various cases which may occur have been 
 
 given above in the form of illustrations. 
 
 The Indian Contract Act (s. 262) gives the rule as Euleof 
 „ ,, Indian Con- 
 
 follOWS:— tract Act. 
 
 " Where there are joint debts due fromthe partnership, 
 and also separate debts due from any partner, the partner- 
 ship property must be applied in the first instance in 
 payment of the debts of the firm ; and if there is any 
 surplus, then the share of each partner must be applied 
 in payment of his separate debts or paid to him. The 
 separate property of any partner must be applied first in 
 the payment of his separate debts, and the surplus (if any) 
 in the payment of the debts of the firm." This section is 
 general in its terms, and not confined to tbe adminis- 
 tration of partners' estates by the Court. It seems 
 intended to cover the doctrine of partners' lien, which 
 is separately dealt with by the Partnership Act, s. 39, 
 pp. 105 — 110, above. 
 
 The rules of administration as between the creditors of The rule 
 the firm and the separate creditors of the partners have d3rtfulin 
 been settled, and adhered to after much hesitation in the principle, 
 earlier cases, as " a sort of rough code of justice," 3 and as 
 an empirical way of dealing with a pressing necessity, 
 rather than as being reasonable in themselves. 4 They 
 give, in fact, results altogether at variance with the 
 mercantile system of settling the accounts of a firm, which 
 
 1 Ex parte Trotman (1893) 68 L. T. 588, 5 R. 349. 
 
 2 19 Beav. Ill (1854). 
 
 3 Per James, L.J., Lacey v. Hill (1872) L. E. 8 Ch. at p. 444. 
 
 4 " It is extremely difficult to say upon what the rule in bankruptcy 
 
152 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 
 Chap. III. 
 
 Mercantile 
 plan of admi- 
 nistration. 
 
 Law of 
 Scotland. 
 
 proceeds upon the mercantile conception of the firm as a 
 person distinct from its partners. On the mercantile plan 
 the debts of the partners to the firm, as ascertained on the 
 ordinary partnership accounts, are payable on the same 
 footing as their other debts ; and if this rule were applied 
 by the Court, the joint estate might prove against the 
 separate estate of anypartner 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 anything. 1 
 
 The law of Scotland does treat the firm as a separate 
 person, and so far agrees with the usage of merchants ; 
 but on the point now before us it differs from the mercantile 
 scheme of accounts as well as from the law of England. 
 The rule is, that "upon the sequestration of co-partners 
 
 is founded :" per Lord Eldon, Gray v. Chisicell (1803) 9 Ves. at 
 p. 126, 7 R. R. 152 ; to the like effect in Dutton v. Morrison (1810-1) 
 17 Ves. at p. 211, 11 R. R. 65 ; see, too, Lodge v. Prichard (1863) 1 
 D. J. S. 613, per Turner, L.J. Story (on Partnership, §§ 377, 
 382) says that it "rests ou a foundation as questionable and un- 
 satisfactory as any rule in the whole system of our jurisprudence:" 
 Kent, on the other hand (Conim. iii. 65), thinks it on the whole 
 a reasonable one. Lord Blackburn has all but said that it was 
 invented merely to save trouble. '• The reason was, I take it, 
 not upon the ground 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 adminis- 
 tration 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 : " Read v. Baihy (1877) 3 App. Ca. at p. 102. 
 1 See the extract from Cory on Accounts given in Lindley, 713, 714. 
 
JOINT AND SEPARATE ESTATES. 153 
 
 their separate estates are applicable to the payment pari Part II. 
 
 passu of their respective separate debts, and of so much — — 
 
 of the partnership debts as the partnership estate is 
 insufficient to satisfy. The creditor in a company [i.e. 
 partnership] debt, 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 payment from the 
 company's funds, and he is ranked as a creditor only for 
 the balance." 1 This is less favourable to partnership 
 creditors 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 favour 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 separate 
 creditors for any remaining deficit : " and this is the rule 
 expressly adopted by the Swiss Federal Code of Obligations, 
 Arts. 566 and 568. 
 
 The German law on the subject is now contained partly 
 in the Civil Code in force since 1st Jan. 1900, partly in 
 the Bankruptcy Act (Konkursordnung) , revised as of the 
 same date. The primary liability of partnership assets for 
 
 1 Second Report of Mercantile Law Commission, Appendix A, 
 p. 99. It must be remembered that in Scotland the lirm can be 
 bankrupt without the partners being bankrupt. 
 
 2 Troplong, Droit. Civ. Expl., Contrat de la Societe, torn. 2, 
 nos. 857-863 ; Sirey, Codes Annotes, on Code Civ. 1864, nos. 10-12. 
 
154 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 
 Chap, III. 
 
 Exceptional 
 rights of 
 proof in 
 certain cases. 
 When credi- 
 tors of firm 
 may prove 
 against sepa- 
 rate estate. 
 
 partnership debts is dealt with in ss. 732 — 735 of the 
 Civil Code ; by s. 212 of the Konkursordnung a joint 
 creditor, in the event of a partner's separate estate being 
 administered in bankruptcy, can prove, apparently paripassu 
 with separate creditors, for any balance of his debt remaining 
 unsatisfied by his claim against the partnership assets. 
 
 The rules as to the order of distribution of joint and separate 
 assets are treated here, for the purposes of " choice of law," 
 as a matter of procedure belonging wholly to the lex fori. 1 
 
 2. A creditor of the firm may nevertheless 
 prove his debt in the first instance against the 
 separate estate of a partner if the debt has been 
 incurred by means of a fraud practised on the 
 creditor by the partners or any of them, 2 or 
 (it seems) if there is no joint estate. 
 
 Illustration. 
 A. and B., trading in partnership, induce C. to accept bills 
 of exchange to a large amount by representing them as drawn 
 to meet purchases of cotton on the joint account of A. andB.'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. 3 
 
 1 Bullock v. Gaird, L. R. 10 Q. B. 276, 44 L. J. Q. B. 124 ; Re 
 Doetsch [1896] 2 Cli. 836, 65 L. J. Ch. 855. 
 
 2 Ex parte Adamson (1878) 8 Ch. Div. 807, 47 L. J. Bky. 103, diss. 
 Bramwell, L.J. 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 liability to 
 restore the money obtained by fraud. This liability constitutes a 
 provable debt, being treated apparently as a liquidated 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, 53 L. J. Ch. 415, where the 
 point was not decided, as the partner had given a separate guaranty. 
 
 :i Ex parte Adamson (1878) 8 Ch. Div. 807, 47 L. J. Bky. 103. 
 
JOINT AND SEPARATE ESTATES. 155 
 
 It was formerly held that joint creditors might also Part II. 
 
 prove in the first instance against a partner's separate _ — 
 
 estate in, cases where there was no joint estate. This j oin t r e 3 tate. 
 
 operated as a most capricious exception to the general rule, 
 
 for the existence of joint estate of any pecuniary value, 
 
 however small, such as office furniture worth a few shillings, 
 
 was enough to save that rule from it. And it was thought 
 
 by many that the exception was tacitly abrogated by sect . 
 
 40 of the Bankruptcy Act, 1883, which makes no mention 
 
 of it. But it has been held that, as the law was settled by 
 
 a long course of authority, the Court could not treat it as 
 
 altered by mere negative implication, and that accordingly 
 
 it is still in force. 1 
 
 3. The trustee of the joint estate of a bank- where joint 
 rupt firm may prove 2 against the separate estate prove against 
 of any partner, or the joint estate of any distinct estates or 
 firm composed of or including any of the part- minor firm. 
 ners 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 : 3 
 
 2. Where that partner has fraudulently 
 
 1 Be Budgett, Cooper v. Adams [1894] 2 Ch. 555, 557, 63 L. J. Ch. 
 847 ; and see Lindley, 749. 
 
 2 That is, on behalf of the creditors of the firm. 
 
 3 Lindley, 754. 
 
156 PRO'EDVRE AXD ADMINISTRATION. 
 
 Part ii. converted partnership property to his own 
 
 1 U1 use 1 without the consent or subsequent ratifi- 
 
 cation of the other partner or partners. 2 
 
 Illustrations. 
 
 1. A., B., C, D. and E. are bankers in partnership at York, 
 and A., B., G. and D. are bankers in partnership at Wake- 
 field. A balance is due to the York firm from the Wakefield 
 firm on account of dealings between the two banks in the 
 ordinary course of banking business. The York firm, and 
 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. 3 
 
 2. A. and B. become partners from the 1st 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. 4 
 
 1 Lindley, 751. 
 
 2 The comparison of Ex parte Harris (1813) 2 V. & B. 210, 1 
 Rose, 437, 13 R. R. 65, with Ex parte Yoiige (1814) 3 V. & B. 
 31, 2 Rose, 40, 13 R. R. 135, and the judgment of Jessel, M.R., 
 in Lacey v. Hill (1876) 4 Ch. L>. 537. affirmed in the House of Lords, 
 nom. Read v. Ballet) (1877] 3 App. Ca. 94, 47 L. J. Ch. 161, seems 
 to give this as the true form of the rule. For further remarks see 
 par. 4 below. Lord Eldon's own terms, several times repeated in 
 Ex parte Harris, are " knowledge, consent, privity or subsequent 
 approbation." I have ventured to act on Sir G. Jessel's intima- 
 tion in J.aeeij v. Hill that fewer words would probably have done 
 as well. 
 
 1 Ex parte Cattell (18:20) 2 Ul. & .1. 124, 5 L. J. Ch. 71, 28 
 R. It. 170. 
 
 1 LVr Lord Eldon, Ex parte Harris (1813) 2 "V. & B. at p. 214, 13 
 R. H. (II). 
 
ADMINISTRATION OF ESTATES. 157 
 
 3. A. and B. are partners under articles which provide that Part II. 
 money received by either of them on the partnership account Chap, III, 
 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 bankers, 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. 1 
 
 4. [A. and B. are' partners, A. being the sole acting partner. 
 A. pays out of the partnership property private debts of his 
 own and other debts for which, under the provisions of the 
 partnership articles, not the firm but A. separately is liable. 
 The firm afterwards becomes bankrupt. The trustee of the 
 joint estate cannot prove for the amount of these debts against 
 a separate estate of A., since A.'s conduct does not amount to a 
 fraudulent conversion of partnership property to his own use. 2 ] 
 
 1 Ex parte Harris (1813) 2 V. & B. 210, 13 R. R. 65, and less fully 
 in 1 Rose, 437. " The necessary effect 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, 13 R. R. 70. 
 
 2 Ex parte Lodge and Fendal (1790) 1 Ves. Jr 166, 1 R. R. 99, and 
 see 2 V. & B. 211, n., 13 R. R. 67, n., and Cooke's Bankrupt Laws, 
 530, 8th ed. The opinion of the Court was at first the other way, 
 and the case has been considered one of great hardship : see the 
 judgment in Ex parte Yonge (1814) 3 V. & B. 31, 34, 2 Rose, 40, 13 
 R. R. 135. 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 of the same class as Ex parte Harris (1813). See the 
 
158 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 5. A., B. and C. are partners in a bank, A. being the sole 
 
 Chap. Ill, man agtng 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 trustees of B. and C.'s joint estate may prove 
 against A.'s estate for the amount of the partnership moneys 
 misapplied by him. 1 
 
 Rule against 
 proof by 
 partners in 
 competition 
 with creditors. 
 
 4. Where the joint estate of a firm or the 
 separate estate of any partner is being adminis- 
 tered, no partner in the firm may prove in com- 
 petition with the creditors of the firm either 
 against the joint estate of the firm 2 or against 
 the separate estate of any other partner 3 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 holding 
 himself or allowing himself to be held out as a 
 
 comments on it in the judgment there, -2 V. & B. at p. 213, 13 R. E. 
 68, and Ex parte Hinds (1849) 3 De G. & Sm. at p. 615, 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/' 
 
 1 Laeey v. Hill (1876) 4 Ch. Div. 537, affirmed in the House of 
 Lords, nom. Rend v. Bailey (1877) 3 App. Ca. 94, 47 L. J. Ch. 161. 
 
 2 Lindley, 739. 
 :l lb. 75.5. 
 
ADMINISTRATION OF ESTATES. 159 
 
 partner, become liable as such to the creditors Part n. 
 of the firm generally, l but not to one who has 
 
 so become liable to some only of the creditors. 2 
 
 A married woman who lends money out of her separate 
 property to a firm of which her husband is a member can 
 (if the loan is really and not colourably a loan to the firm 
 as distinct from the husband in person) prove against the 
 joint estate like any other creditor. Sect. 3 of the Married 
 Women's Property Act, 1882, cannot be extended so as to 
 put her in the position of a partner, and bring her within 
 this or an equivalent rule. 3 
 
 Exceptions. — Partners may nevertheless prove Exceptions 
 against the joint estate of the firm or the separate cumstances. 
 estate of a partner, as the case may be, for debts 
 which have arisen under any of the following 
 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 separate 
 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 : * 
 
 1 Ex parte Hayman (1878) 8 Ch. Div. 1 1, 47 L. J. Bky. 54. 
 
 2 Ex parte Sheen (1877) 6 Ch. Div. 235. In the one case there 
 s an ostensible partnership apparent to the public, in the other 
 
 onljr circumstances creating at most a liability towards particular 
 persons. 
 
 3 Re Tuff, Ex parte Nottingham, (1 887) 1 9 Q. B. D. 88, 56 L. J. Q. B. 
 440. 
 
 * Lindley, 743, 756. 
 
160 PROCEDURE AND ADMINISTRATION. 
 
 Part ii. 2. Where the separate property of a partner 
 
 Chap ' m ' has been fraudulently converted to the use of 
 
 the firm, 1 or property of the firm has been 
 fraudulently converted to the use of any 
 partner, 2 without the consent or subsequent 
 ratification of the partner or partners not 
 concerned in such conversion : 3 
 
 3. Where, having been bankrupt, a partner 
 has been discharged, and has afterwards 
 become a creditor of the firm 4 [or of another 
 partner 5 ] . 
 
 Ilhtslraiions. 
 
 1. A., B. and C. are partners under articles which 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 
 profits up to the day of his death, and shall be paid out by 
 instalments. A. dies, and after his death, and before the 
 ascertained value of his share has been paid to his executors, 
 B. and C. 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. 6 
 
 2. If, the other facts being as in the last illustration, all 
 debts of the firm contracted in A.'s lifetime have been paid 
 
 1 Per Lord Eldon, Ex jxirte Sillitoe (1824) 1 Gl. & J. at p. 382. 
 
 - Lindley, 756. 
 
 6 See note '-, p. 150, above. 
 
 1 See lllust. 10, p. 1<«, below. 
 
 ° This case would presumably follow the analogy of the other. 
 
 n Nioitum v. Gordon (187»i) I App. Ca. 195, 45 L. J. Bky. 89, 
 iifliriiiin;,' s. c. noni. Ex parte Gordon i' 1 874) L R. 10 V,h. IfO. 44 T ,T. 
 Ilkv. 17. 
 
, ADMINISTRATION OF ESTATES. 161 
 
 before the bankruptcy, A.'s executors may prove for the full Part II. 
 amount ; for here they are not competing with any creditor Chap. III. 
 of A. 1 
 
 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. all 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 pro- 
 perty to trustees for the benefit of the creditors of the firm. 
 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. 3 
 
 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. 8 It is 
 doubtful whether he might so prove it if A.'s separate estate 
 were solvent. 4 
 
 5. A. and B. are traders in partnership, A. being a dormant 
 partner. They 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 
 
 1 Ex parte Edmonds (1862) 4 D. F. J. 488. The fact that the joint 
 debts had been paid appears by the head-note. 
 - Ex parte Collinge (1863) 4 D. J. S. 533. 
 
 3 Ex parte Topping (1865) 4 D. J. S. 551. 
 
 4 Lacey v. Hill (1872) L. R. 8 Ch. 441, 445. 
 
 P. M 
 
162 PROCEDURE AND ADMINISTRATION. 
 
 Part II. converted into the separate debts of B., and B.'s debt to A. on 
 Chap. Ill, t jje account stated is a purely separate debt. 1 
 
 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 bf 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. andB.2 
 
 7. A., B., C. and D. are bankers in partnership under the 
 firm of C. & Co. A. and B. are ironmongers under the firm 
 of A. & Co. A. and B. indorse in the name of A. & Co. bills 
 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 
 transactions, as their dealings with C. & Co. were not in the 
 course of their separate trade, but only " for the convenience 
 of the general partnership." 3 The same rule applies even if 
 A. & Co. are bankers. 4 
 
 8. A., B. and O. are bankers in partnership. C, the 
 managing partner, becomes bankrupt. A balance is due 
 from him to the firm on the partnership account, and lie has 
 also obtained large sums of money on bills drawn and indorsed 
 by him in the name of the firm, and applied the money to his 
 own use, and A. and B. have been compelled to take up the 
 bills. A. and B. having paid all the debts of the firm existing 
 at the date of the bankruptcy, may prove in C.'s bankruptcy 
 for the amount thus received and misapplied by him. 5 
 
 !). A. and B. are partners under articles which provide that, 
 if A. dies during the partnership, B.'s share in the business 
 
 1 Ex parte Qrazebrook (1832) 2 D. & C'h. 1ST ; see the explanation 
 in Lmdley, 758. 
 
 - Ex parte Cook (1831) Mont. 228. 
 
 3 E.r parte SMUoc (1821) 1 Gl. & J. 374, 2 L. J. Ch. 137, 26 R. R. 
 204. 
 
 * Ec parte Mamie (18(17) L. R. 2 Ch. 550. 
 
 1 /•;.(• parte Yonge (1814) 3 A'. & B. 31, 2 Rose, 40, 13 R. R. 135. 
 
ADMINISTRA TION OF EST A TES. 163 
 
 shall belong to A.'s representatives. A. dies daring the part- Part II. 
 nership, having appointed B. and others his executors. B. is Chap. III. 
 the sole acting executor, and continues the business. He 
 receives income of the separate property of A., and employs 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 bank- 
 ruptcy. The receiver of A.'s estate may prove in the bankruptcy 
 of B. for the moneys misapplied by B. as A.'s executor. 1 
 
 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. 3 
 
 11. G. and K. are partners under the firm of C. & 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 between 
 the firms of C. & 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 C. & Co. and W. become bankrupt. 
 Here C. & Co. cannot prove against "W.'s estate, inasmuch as 
 there is not any real debt. 3 
 
 The exceptional right of proof in cases where there has Principles of 
 
 been a wrongful conversion of partnership property to the r j g ht of proof 
 
 use of one partner or vice versa is established by compara- ritv^sbe 
 
 tively early authorities which settle the principle, hut are wrongfully 
 
 converted to 
 ' the use of the 
 
 1 Ex parte Westcott (1874) L. R. 9 Ch. 626, 43 L. J. Bky. 119. firm or of a 
 
 = Ex parte Atkins (1820) Buck, 479. partner. 
 
 3 Be WaJceham, Ex parte Gliddon (1884) 13 Q. B. D. 43. This is 
 a singular case. As between. C. & W. there was no real contract 
 making W. liable to pay, since C. knew all the facts ; as between 
 K. & W. there might 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 O.'s ostensible contract by ratification, for 
 there was nothing to ratify. The only real debt was from C. to 
 C. & Co. Cp. Lindley, 754. 
 
 M 2 
 
164 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 
 Chap. III. 
 
 Fraud in 
 strict sense 
 need not be 
 proved. 
 
 not very clear in their language, and leave sundry questions 
 open as to the limits of the rule. It is somewhat unfortu- 
 nate that E.r parte Luilf/r and Fendal 1 acquired the 
 reputation 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 Harris," which was in fact 
 so treated in Lacey v. Hill* 
 
 In this last case the whole question is dealt with, and 
 especially the judgment of Sir G. 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 4 within the meaning 
 of the rule ? A wilfully dishonest intention, or conduct, 
 which, in the language of Lord Eldon, adopted by 
 Jessel, M.R., 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 G. Jessel, 5 '" necessary for the joint 
 estate 4 to prove more than, in the words of Lord Eldon, 6 
 that this overdrawing was for private purposes, and without 
 the knowledge, consent, privity, or subsequent approbation 
 of the other partners. If that is shown, it is prima facie 
 
 1 1 Yes. Jr. Kit? (17"HI) ; see note -, p. 157, above. 
 
 " 12 A'. & B. 210, 13 R. E. 65 (1X1;)). 
 
 3 See note 3 , p. 156, above : 4 C'h. Div. 537 ; nom. Read v. Bailey 
 (1877) 3 App. Co. 94, 47 L. J. Ch. 161. 
 
 '' Everything here said is equally applicable, of course, to the 
 converse case, which, however, is in practice very rare, if indeed it 
 occurs at all. 
 
 6 4 Ch. D. at p. 543. 
 
 6 Ex parte Harris (1813) 2 V. & B. atp.'214, 13 R. R. at p. 68. 
 
EFFECT OF FRAUDULENT CON VERS ION. 165 
 
 a fraudulent appropriation within the rule." Hence it Part II. 
 
 would appear that the term fraud is used for the purposes — — -V 
 
 of this rule in the wide sense formerly given to it by 
 
 courts of equity. Lord Blackburn puts the question in 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?" 1 It is said, again, that a mere 
 
 excess in degree of an act authorised in kind, such as an 
 
 overdraft entered in the books without concealment, is not 
 
 fraud within the meaning of the rule. 3 These remarks do 
 
 not seem to agree with the proposition laid down by 
 
 Sir G. 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 will amount to implied authority ? It must Consent or 
 
 be admitted that one partner may give assent by conduct may ^ e w 
 
 as well as by words to the uncontrolled and unlimited COIlduot : 
 
 question or 
 
 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 authorised. So much is established by the 
 decision in Ex parte Harris. 3 But a distinct question 
 remains, whether the doctrine of constructive notice 
 applies to these cases; in other words, whether means of 
 
 1 3 App. Ca. 104 (1877). 
 
 ' Lord Cairns, 3 App. Ca. 99 (1877) and James, L.J., 4 Ch. Div. 
 553 (1876). 
 '2Y.&B. 210, 13 R, R. 65 (1813). 
 
166 PROCEDURE AND AMIINISTMAT10X. 
 
 Part II. knowledge on the part of the partner defrauded are equiva- 
 chap ' n1, lent to actual knowledge. If he might have discovered the 
 misappropriation of partnership funds by using ordinary- 
 diligence 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 
 affirmative answer. Lord Eldon said, in Ex parte Yonge} 
 " If his partners could 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 conversion 
 at all, the investment in question, though unauthorised, 
 having been made on the partnership account. 
 Decision in The contrary doctrine, on the other hand, was distinctly 
 
 thlt'dortriSf and P ositiTCl y laid down by Sir G. Jessel in Laccij v. Hill, 3 
 
 of construe- and does not appear to have been contested on the appeal 
 tive notice is rr 
 
 not here to the House of Lords, the result of which was to affirm 
 
 app 1C ' the decisions below in all points. 4 There must be, he said 
 
 1 3 A'. & B. lit p. 36, 13 R. E. at p. 138 (1814). 
 
 -' 3 De G. & Sin. 613, 616-7 (1849). 
 
 3 4 Oh. 1). 537 (1870). 
 
 ' yiV.i</ v. lktiliij (1877) 3 App. Ca. 94, 47 L. J. Oh. 161. 
 
EFFECT OF FRAUDULENT CONVERSION. 167 
 
 in effect, a real consent or acquiescence ; and acquiescence Part II, 
 means, not the existence of facts which 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 nor that of 
 of constructive notice be obtained in another way by n e g£g ellce y 
 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 fraudulent, 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. Hill 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 with the Court. 
 A man's separate estate is increased by any increase of 
 his private means ; increasing his own means out of the 
 partnership estate, whatever he does with the funds so 
 taken, is in fact increasing his separate estate. " Whether 
 
1G8 
 
 PROCEDURE AND ADMINISTRATION. 
 
 Part II. 
 Chap, III. 
 
 Ordinary 
 Tight of credi- 
 tors against 
 deceased part- 
 ner's estate. 
 
 Double proof 
 where distinct 
 causes of 
 action. 
 
 the separate estate has in the result been increased or not 
 —whether at the time of the proof it is larger than it 
 otherwise 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 
 the property was thus fraudulently converted and taken 
 for the purpose of one partner." l The Court has nothing 
 to do with tracing the subsequent fate of the sums mis- 
 appropriated : 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 different kind ; there would be a 
 case, not for proof, but for restitution. 2 
 
 It will be remembered that apart from these special 
 rules a partnership creditor is always entitled to a remedy 
 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 being before the Court, are satisfied in the 
 proceedings against the deceased partner's estate. 3 
 
 It will also be observed that where a joint liability and 
 one or more separate liabilities are created in different 
 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 
 
 1 Lord Cairns, 3 App. C.i. 100 (1877). 
 - 4 Ch. Div. 545. 
 
 ' lie lltxhjKuii, Beckett v. Kamsduh (1885) 31 I'll. Div. 177, 55 L. J. 
 Cli. i!41, and set' sect. !> of the Partnership Act, p. 41, above. 
 
ADMINISTRATION OF ESTATES. 16'J 
 
 and became bankrupt ; the new trustees were admitted to Part II. 
 
 prove both against the separate estate of the defaulting ' — '~ 
 
 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. 1 
 
 5. Any creditor of a firm holding a security Rights of 
 
 „',.,,, , i r> ioint creditors 
 
 for his debt upon separate property of any holding 
 
 , , ,-i • • , , , <; separate 
 
 partner may prove against the joint estate or security, or 
 the firm, and any separate creditor of a partner comeise y- 
 holding a security for his debt upon the property 
 of the firm may prove against that partner's 
 separate estate, without giving up his security : 
 provided that the creditor must in no case 
 receive in the whole more than the full amount 
 of his debt. 2 
 
 Explanation. — Eepresentations made to a 
 creditor by the partner or partners giving him 
 a security that the property on which 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. ' A 
 
 1 Re Parkers, Ex parte Slieppard (1887) 19 U. 13. D. 84, 56 L. J. 
 Q. B. 338. 
 
 2 Re Plummer (1841) 1 Ph. 56, 60 ; Rolfe v. Flower (1866) L. R. 1 
 P. C. at p. 46 ; Lindley, 739, 766 sqq. For the general rule as to the 
 treatment of secured debts in bankruptcy, see lb. 727 sqq., and 
 Schedule 2 to the Bankruptcy Act, 1883 ; also Gouldery v. Bartrum 
 .(1880-1) 19 Ch. Div. 394, 51 L. J. Ch. 265 ; Societe GSnerale de 
 Paris v. Gem (1883) 8 App. Ca. 606, 53 L. J. Ch. 153. 
 
 J See Illustration 4. 
 
170 PROCEDURE AND ADMINISTRATION. 
 
 cEJSi. Illustrations. 
 
 1. A., B. and C. are partners, and open a banking account 
 with I). The bank makes advances to the firm on the security 
 of the joint and several promissory note of A., B. and C. 
 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. 1 
 
 2. A. is in partnership with his son, B. They execute to a 
 partnership creditor, C, a joint and seveial bond for his debt, 
 and A. also gives C. 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 
 insolvent. 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. 2 
 
 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 firm 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 
 
 1 Ex parte Bate (1838) 3 Deac. 358. 
 
 ' Ex parte Turney (1844) 3 M. & D. 576. 
 
ADMINISTRATION OF ESTATES. 171 
 
 proof against the joint estate. 1 0. & Co. may also prove Part II. 
 against A.'s separate estate for the residue of A.'s separate Chap. III. 
 debt due to them, after deducting the apportioned part of the 
 proceeds of the security. 2 
 
 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 know- 
 ledge 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. 3 
 
 6. "If a debtor was at the date of the Double proof 
 
 • • t Tii- . /> j ■ / • , allowed on 
 
 receiving order liable in respect ol distinct con- distinct 
 
 tracts as a member of two or more distinct 
 firms, or as a sole contractor and also as mem- 
 ber of a firm, the circumstance 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 
 
 1 For this purpose they may apply to the Court to have a dividend 
 declared first on the joint estate under sect. 59 of the Bankruptcy 
 Act, 1883 : see p. 145, ahove. 
 
 " Ex parte Dickin (1875) L. E. 20 Eq. 767, 44 L. J. Bky. 113. 
 
 3 Ex parte Manchester and County Bank (1876) 3 Cli. Div. 481, 45 
 L. J. Bky. 149. The reason is, according to Mellish, L.J. (3 Ch. Div. 
 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. 
 
 contracts. 
 
2 
 
 172 PROCEDURE AND ADMINISTRATION. 
 
 Part ii. proof 1 in respect of the contracts against the 
 
 chap. in. 1)r0 pe r ties respectively liable on the contracts."" 
 In cases not included in the foregoing rule a 
 creditor to whom a firm is liable, and to whom 
 its members are also several!}' 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. 3 
 
 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. 
 Afterwards 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. 4 
 
 2. A. and 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 
 
 1 The statutory right to prove carries the right to receive dividends, 
 and is in no case merely formal : see Ex parte Honey (1871) L. E. 7 
 Cli. 178, 41 L. J. Bky. 9. 
 
 - Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), Sched. 2, Art. 18, 
 re-enacting sect. 37 of the Bankruptcy Act, 1869. Cp. Lindley, 765, 
 766. 
 
 3 This was the old general rule, which is now practically reduced 
 to an exception of no great importance ; Lindley, 765, 766. The 
 cases cited as illustrations will show that the Court is inclined to 
 give a lilieiiil application to the modem enactment. 
 
 ' Ex parte Honey (1871) L. R, 7 Ch. 178, 41 L. J. Bky. 9. 
 
ADMINISTRATION OF ESTATES. 173 
 
 be shown by external evidence that the joint contract of A. Part II. 
 and B. in the deed is in fact the contract of their firm, and 1). Chap, ill, 
 may prove against the joint estate of the firm in respect of the 
 joint covenant, and against the separate estates of A. and B. 
 in respect of their several covenants. 1 
 
 7. Where the discharge of any member of Effect of 
 
 *- * separate dis- 
 
 a partnership firm is granted to him in his charge of 
 
 1 ■*■ u nartnpr 
 
 separate bankruptcy, he is thereby released 
 from the debts of the firm as well as from his 
 separate debts. 2 
 
 1 Ex parte Stone (1873) L. B. 8 Ch. 914, 42 L. J. Bky. 73. 
 
 2 Ex parte Hammond (1873) L. R. 16 Eq. 614, 42 L. J. Bky. 97. 
 
 partner. 
 
174 
 
 PART III. 
 
 FORMS. 
 
 Part III. 
 
 Forms. 
 
 If the part- 
 nership is to 
 be for life it 
 will be ex- 
 pressed to be 
 " for and 
 during the 
 joint lives of 
 the partners.' 
 
 FOEM 1. 
 
 Deed of Partnership between two business men. 
 
 This Indenture made the day of 
 
 between A., of etc., and B., of etc., Witnesseth as 
 follows : — 
 
 1. The said A. and B: will become and remain 
 partners in the business of for the term of 
 
 years from the date of these presents, if 
 they shall so long live, under the style or firm of 
 
 , but subject to the provision for deter- 
 mination hereinafter contained. 
 
 2. Either partner shall be at liberty to deter- 
 mine the partnership at the e*tid of years 
 from the date of these presents by giving to the 
 other partner not less than calendar months' 
 previous notice in writing of his intention to do 
 so, or by leaving such notice at the place where 
 the business of the partnership shall for the time 
 being be carried on. 
 
 3. The business of the partnership shall be 
 carried on at or at such other place or 
 places as the partners mav from time to time 
 determine. 
 
FORMS. 175 
 
 4. Both the partners will at all times diligently Part in. 
 employ themselves in the business of the partner- 
 
 ship and carry on the same for the greatest 
 advantage of the partnership. 
 
 5. The Bankers of the firm shall be Messrs. 
 at or such other bankers as shall 
 
 from time to time be agreed upon by the partners, 
 and all moneys and securities of the partnership 
 except moneys required for current expenses 
 shall be paid into and deposited with the said 
 Bankers. 
 
 6. Each partner shall have power to draw 
 cheques in the name of the firm. 
 
 7. The capital of the partnership shall consist 
 of the sum of £ to be paid to the credit of 
 the firm by the partners in equal shares imme- 
 diately after the execution of these presents. 
 
 8. Neither partner shall without the consent 
 in writing of the other do any of the things 
 following : — 
 
 (a) Be either directly or indirectly engaged or see Partner- 
 interested in any trade or business except the i89o, A s °3o. 
 business of the partnership. 
 
 (b) Lend any money or deliver on credit any 
 goods belonging to or otherwise give credit on 
 behalf of the partnership. 
 
 (c) Give any security or undertaking for the see Partner- 
 payment of money on account of the partnership. Igso^s >q S . 
 
 (d) Kelease or compound any debt owing to or 
 claim by the partnership. 
 
 (e) Enter into any bond or become security for See Partner- 
 any person or do or knowingly permit to be done \m, tk (2). 
 any thing whereby the capital or property of the 
 
I y f ; FORMS. 
 
 Part in. partnership may be seized, attached, or taken m 
 
 Forms. , ■ 
 
 execution. 
 
 see Partner- (f) Assign or mortgage his share or interest 
 
 1890,^24(7) in the partnership or introduce or attempt to 
 and s. si. introduce any other person into the business of 
 
 the partnership. 
 
 (ij) Hire or dismiss any clerk, traveller or 
 
 other servant of the partnership. 
 
 (h) Make any journey or voyage on account of 
 
 the partnership. 
 
 (i) Enter into any contract for the purchase of 
 
 property or goods exceeding in value the sum 
 
 of £ 
 
 9. Each partner shall punctually pay and 
 
 discharge his separate debts and liabilities and 
 
 shall keep the partnership effectually indemnified 
 
 against the same, 
 see Partner- io. Each partner shall be just and faithful to 
 i89u, s. 28. the other partners or partner in all matters 
 
 relating to the business of the partnership and 
 
 shall give a true account of and full information 
 
 relating to the same as often as he shall be 
 
 reasonably required to do so. 
 By the 11. All outgoings and expenses of the partner- 
 
 Act,"i89(i, ship and all losses shall be paid out of the capital 
 La iossefare, and profits of the partnership, and if the same shall 
 except where ^ e deficient then by the partners in equal shares. 
 
 otherwise i 
 
 agreed, to be 12. The partners shall be entitled to the net 
 
 equally, and profits of the business in equal shares, and the 
 
 ami clause 12 same slia11 be divided between the partners 
 
 mn L 1ll> , ., ■, immediately after the settlement in manner 
 
 omitted it it . • 
 
 i to hereinafter provided of the general annual account 
 in each vcav. 
 
 19 (tcsirci 
 shorten tin 
 deed. 
 
FORMS. 177 
 
 13. Each partner may draw out of the business Part in. 
 
 the monthly sum of £. in anticipation of his — 
 
 share of profits for the current year, and' if on 
 
 taking the general account in any year he shall 
 be found to have drawn more than the amount of 
 profits to which he shall be entitled for that year, 
 he shall immediately refund the excess. 
 
 14. Proper books of account shall be kept by 
 the partners, and all such entries made therein 
 as are usually entered in books of account kept 
 by persons engaged in a business similar to the 
 business of the partnership. The partnership T K is rI is f pr ?" 
 books shall be kept at the place of business for s. u (9) of the 
 the time being of the partnership, and each ac^Tsjjo^ 
 partner shall at all reasonable times have access ^^1^% 
 to and power to take copies of the same. is desired to 
 
 15. On the day of in the year deed. 
 and on the clay of in every succeeding 
 year, during the continuance of the partnership, a 
 general account shall be taken up to the said 
 
 clay of of the assets and liabilities and trans- 
 
 actions of the partnership, and shall be entered 
 in two books, and shall be signed in each such 
 book by each partner, and after such signature 
 each partner shall keep one of such books and 
 shall be bound .by such account : provided never- 
 theless that if any manifest error is found in 
 the account by either partner and signified to 
 the other within calendar months after 
 
 signature as aforesaid, such error shall be rectified. 
 
 16. Upon the determination of the partnership 
 otherwise than by the death of either partner or 
 by notice to determine as hereinbefore provided, 
 
178 
 
 FORMS. 
 
 Part III. 
 Forms. 
 
 If it is desired 
 to shorten the 
 deed this 
 clause may be 
 omitted in 
 reliance on 
 ss. 39 and H 
 of the 
 Partnership 
 Act, 1890. 
 
 Short alterna- 
 tive form by 
 reference to 
 the Partner- 
 ship Act, 
 1890. 
 
 In the case 
 of a partner- 
 ship for lives 
 this and the 
 next succeed- 
 ing clause are 
 unusual. 
 
 If the good- 
 will is to be 
 paid for, it 
 should be so 
 stated. 
 
 a general account shall be taken of the assets and 
 liabilities and transactions of the partnership, 
 and the assets shall as soon as may be be realised 
 and the liabilities discharged and the net surplus 
 after payment of the expenses of realisation and 
 discharge of liabilities and of any unpaid profits 
 due to either partner, shall be divided between the 
 partners in equal shares, and each partner shall 
 execute and do all such deeds, documents, and 
 things as may be necessary or convenient for 
 effecting the speedy winding up of the partnership 
 affairs, and for such mutual indemnity and release 
 as may be reasonably required. 
 
 16a. Upon the determination of the partnership 
 by effluxion of time, the affairs of the same shall 
 be wound up in accordance with sections 39 and 
 44 of the Partnership Act, 1890. 
 
 17. In the event of the partnership being 
 dissolved by the death of either partner, or by 
 either partner giving such notice to determine 
 as aforesaid the other partner shall have power 
 to purchase as from the date of the dissolution 
 and upon the terms hereinafter appearing the 
 share of the partner so dying or giving notice to 
 determine as aforesaid by giving to him or to his 
 legal personal representatives notice in writing to 
 that effect within calendar months from the 
 date of the dissolution. 
 
 18. The purchase-money for the purchase under 
 clause 17 hereof shall be the net value (but not 
 allowing anything for goodwill) of the share of 
 the outgoing partner after satisfying all liabilities 
 of the partnership outstanding at the date of the 
 
FORMS. VJS 
 
 dissolution, and if such value cannot be agreed Part in. 
 between the parties, the same shall be referred ' — 
 
 to arbitration in the manner hereinafter provided. 
 The purchase-money when ascertained shall be 
 paid by four equal instalments at the end of four, 
 eight, twelve, and sixteen months respectively from 
 the date of the dissolution of the partnership, and 
 shall (if required) be secured by the bond of the 
 continuing partner, who shall also at his own cost 
 execute and do all deeds, documents, and things 
 necessary for effectually indemnifying the outgoing 
 partner or his estate from all liabilities of the 
 partnership ; and the outgoing partner or his legal 
 personal representatives shall at the request and 
 cost of the continuing partner execute and do 
 all deeds, documents, and things necessary for 
 effectually vesting in the purchaser the share 
 purchased, and for enabling him to get in all 
 debts due to the firm, and to carry on alone the 
 said business as from the date of the dissolution 
 of the partnership. 
 
 19. On the determination or dissolution of the see Partner- 
 partnership either partner or his legal personal 1890^37, 
 representatives shall have power to sign in the 
 
 name of the firm and publish in the London 
 Gazette a proper notice of the dissolution of the 
 partnership. 
 
 20. In the event of either partner giving notice 
 to determine the partnership, and the other 
 partner purchasing his share as respectively afore- 
 said, the outgoing partner shall not during the 
 remainder of the term of the partnership carry 
 on or be interested directly or indirectly in any 
 
 n 2 
 
Forms. 
 
 180 FORMS. 
 
 Part in. business competing or interfering with the business 
 of the partnership within a radius of miles 
 
 of 
 
 21. Any difference which ma}' arise between 
 the partners or their respective representatives 
 with regard to the interpretation of these presents 
 or any part thereof, or as to the rights or liabilities 
 of either partner under these presents or with 
 regard to the winding up of or any other matter 
 or thing relating to the partnership or the affairs 
 thereof, shall be referred to a single arbitrator in 
 conformity with the provisions of the Arbitration 
 Act, 1889. 
 
 In witness, &c. 
 
 Form 2. 
 
 Deed of Partnership between Three Utisinesx Hen. 
 
 This Indenture made the day of 1900, 
 
 between A. of B. of and C. of 
 
 Witnesseth as follows (that is to say) : — 
 
 1. The said A., B., and C. and the survivors 
 of them, will become and remain partners in the 
 business of from the day of for 
 the term of years, if they or any two 
 of them shall so long live, but subject to 
 determination as hereinafter provided. 
 
 2. Any partner may retire from the partnership 
 at any time after the day of 19 on 
 giving not less than six calendar months previous 
 notice in writing to the other partners of his 
 intention to do so, or leaving such notice at the 
 
FORMS. 181 
 
 place where the business of the partnership shall Part in. 
 
 for the time being be carried on, and at the '- — 
 
 expiration of such notice the partnership shall as 
 regards the partner giving or leaving such notice 
 terminate accordingly. 
 
 3. The death or retirement of any partner shall 
 not dissolve the partnership between the remaining 
 partners. 
 
 4. The style or firm of the partnership shall 
 be 
 
 5. The business of the partnership shall be 
 carried on at the freehold premises, No. 
 Street, in or at such other place as the 
 partners, or the majority of them, shall from time 
 to time agree upon. 
 
 6. The bankers of the partnership shall be 
 Messrs. of or such other bankers as 
 the partners, or the majority of them, shall from 
 time to time determine. All moneys and secu- 
 rities for money belonging to the partnership 
 (except such money as is required for current 
 expenses) shall be paid into and deposited with 
 the said bankers. 
 
 7. All cheques drawn on the partnership account 
 shall be signed by at least two partners. 
 
 8. The capital of the partnership shall be the 
 sum of £ made up as follows : — £1,800, 
 part thereof, being the agreed value of the said 
 freehold premises, No. Street aforesaid, and 
 the stock-in-trade and plant at present on the 
 same premises, which respectively belong to the 
 said A., but are to be taken over and become the 
 property of the caid partnership, and to be credited 
 
182 
 
 FORMS. 
 
 Part in. to the said A. in the books of the partnership as 
 
 — - - part of the capital brought in by the said A.; £200, 
 
 further capital to be contributed by the said A. ; 
 
 £1,000 to be contributed by the said B. ; and 
 
 £1,000 to be contributed by the said C. Such 
 
 sums of £200, £1,000, and A' 1,000 are to be paid 
 
 into the partnership account with the said bankers 
 
 immediately after the execution of these presents. 
 
 9. Any further capital which may be hereafter 
 
 required for the purposes of the partnership shall 
 
 be contributed by the partners in the proportions 
 
 in which they shall for the time being be entitled 
 
 to the net profits of the said business. 
 
 See Partner- 10. Each partner shall be entitled to interest 
 
 \ssofsSi. a t the rate of 5 per cent, per annum on the amount 
 
 of his capital for the time being in the said 
 
 business. 
 
 11. All outgoings and expenses of the partner- 
 ship, and all losses and interest on capital, shall 
 be payable out of the profits and capital of the 
 partnership, and, in the case of deficiency, by the 
 partners in the shares in which they are entitled 
 to the net profits of the business. 
 
 12. The partners shall be entitled to the net 
 profits of the said business in the shares following : 
 — the said A. to a moiety, the said B. to one equal 
 fourth share, and the said C. to one other equal 
 fourth share. The net profits shall be divided as 
 aforesaid immediately after the settlement in 
 manner hereinafter provided of the annual general 
 account in each year. 
 
 13. The partners may at the end of each month, 
 or otherwise as thev may agree, draw out of the 
 
FORMS. 183 
 
 said business on account of their respective shares Part in. 
 
 of profits for the current year the following sums, : — 
 
 namely, the said A., sums not exceeding £ 
 the said B., sums not exceeding £ and the 
 
 said C, sums not exceeding £ . If on taking 
 
 the annual general account in any year any partner 
 shall be found to have drawn more than the 
 amount of profits to which he shall be entitled 
 for that year, he shall immediately refund the 
 excess. 
 
 14. Each partner shall at all times devote all 
 his time and attention to the business of the 
 partnership, and employ himself therein with 
 the utmost diligence, and carry on the same for 
 the greatest advantage of the partnership. 
 
 15. No partner shall during the continuance of 
 the partnership, without the written consent of the 
 other partners or partner, do any of the things 
 following : — 
 
 (The rest to be the same as clause 8 in Form 1, 
 omitting (b).) 
 
 16. No partner shall lend any money or deliver 
 on credit any goods belonging to or otherwise 
 give any credit on behalf of the partnership in 
 any case in which the other partners or partner 
 shall have forbidden him to do so, and if any - 
 partner shall do so he shall make good to the 
 partnership any loss caused thereby. 
 
 17. Proper books of account shall be kept by 
 the partners, and all such entries made therein as 
 are usually entered in books of account kept by 
 persons engaged in a business similar to the 
 business of the partnership. The partnership 
 
184 
 
 FORMS. 
 
 Part in. books shall be kept at the place of business for the 
 * 0TmB ' time being of the partnership, and each partner 
 
 shall at all reasonable times have access to and 
 
 power to take copies of the same. 
 
 18. On the day of in the year 
 
 and the day of in every succeeding 
 
 year during the continuance of the partnership, a 
 general account shall be taken up to the said 
 clay of of the assets and liabilities and 
 
 transactions of the partnership, and shall be 
 entered in three books and shall be signed in 
 each such book by each partner, and after such 
 signature each partner shall keep one of such books 
 and shall be bound by such account ; provided, 
 nevertheless, that if any manifest error is found in 
 the account by any partner and signified to the 
 others within calendar months after signature 
 
 as aforesaid, each error shall be rectified. 
 
 19. If upon the final determination of the 
 partnership by effluxion of time, or otherwise than 
 by death or retirement as aforesaid, there shall be 
 two or more partners still living, a general account 
 shall be taken of the assets and liabilities and 
 transactions of the partnership, and the assets 
 shall as soon as may be be realised and the 
 liabilities discharged, and the net surplus (if any) 
 after payment of the expenses of realisation and 
 discharge of liabilities and payment of any unpaid 
 profits or interest on capital due to any partner 
 and the share of capital of each partner be divided 
 between the partners for the time being in the 
 shares in which they shall then be entitled to the 
 net profits of the partnership, and each partner 
 
FORMS. 185 
 
 :shall execute and do all such deeds, documents, Part in. 
 
 .and things as may be necessary or convenient for . ' — 
 
 -effecting the speedy winding up of the partnership 
 .affairs, and for such mutual indemnity and release 
 :as may be reasonably required. 
 
 20. If any partner shall die or retire during the 
 partnership his share shall, as from his death or 
 retirement, be purchased by and become the 
 property of the remaining partners or partner on 
 the terms hereinafter appearing, and if more than 
 •one then in the shares in which they shall for the 
 time being be entitled to the profits of the said 
 business. 
 
 '21. The outgoing partner or the representatives 
 -of the deceased partner (as the case may be) shall, 
 if such death or retirement happen before the clay 
 hereby fixed for the settlement of the first annual 
 general account, be entitled to the capital brought 
 in by such partner with interest thereon at the 
 rate aforesaid down to the clay of his death, or if 
 the same shall happen after that day then to a 
 .sum of money representing the value of the share 
 •of the capital and property of the partnership 
 (including his share of goodwill which is to be taken 
 in any case to be of the value of £ ) which 
 
 shall be shown to be due to such partner upon the 
 last annual general account, or which would have 
 been shown to be due to such partner if such 
 account had been duly taken on the day 
 
 •of immediately preceding such death or 
 
 retirement, together with interest on capital as 
 .aforesaid, and in either case the outgoing partner 
 or the representatives of the deceased partner (as 
 
186 
 
 FORMS. 
 
 Part in. the case may be) shall also receive an allowance 
 ToraB - after the rate of per cent, per annum upon 
 
 the capital or share of capital and property of the 
 partnership (as the case may be) of such partner 
 in lieu of profits from the commencement of the 
 partnership or from the last annual general 
 account (as the case may be) to the time of such 
 death or retirement, the amount so ascertained to 
 be clue to the outgoing partner or the represen- 
 tatives of the deceased partner to be paid by the 
 surviving or continuing partners or partner, and, 
 if more than one, in the proportions in which 
 they shall thereupon become entitled to the 
 profits of the partnership, within two years from 
 such death or retirement, with interest until 
 payment at the rate of £, per cent, per 
 
 annum. 
 
 22. The surviving or continuing partners or 
 partner shall at their or his own costs execute and 
 do all such deeds, documents, and things as shall 
 be necessary or expedient for the purpose of 
 effectually indemnifying the outgoing partner or 
 the representatives of the deceased partner from 
 all liabilities of the partnership, and the outgoing 
 partner or the representatives of the deceased 
 partner (as the case may lie) shall, at the request 
 and costs of the surviving or continuing partners 
 or partner, execute and do all such deeds, 
 documents, and things as may be necessary or 
 convenient for the purpose of vesting all the share 
 and interest of the outgoing or deceased partner 
 of and in the partnership and the business and 
 assets thereof in the surviving or continuing 
 
FORMS. 187 
 
 partners or partner and enabling the latter to Part in. 
 recover and receive the same. 
 
 23. On the determination or dissolution of the 
 partnership any partner (including for this purpose 
 an outgoing partner), or the representatives of any 
 deceased partner, may sign in the name of the 
 firm and publish in the London Gazette a proper 
 notice of the dissolution of the partnership. 
 
 24. If any partner shall retire during the 
 continuance of the partnership he shall not during 
 the remainder of the partnership term carry on 
 or be interested directly or indirectly in any 
 business competing or in any way interfering 
 with the business of the partnership within a 
 radius of miles of 
 
 25. Any difference which may arise between 
 the partners or their respective representatives or 
 any of them, with regard to the interpretation of 
 these presents, or any part thereof or as to the 
 rights or liabilities of the partners or any of 
 them under these presents or with regard to the 
 winding up of or any other matter or thing 
 relating to the partnership or the affairs thereof, 
 
 shall be referred to a single arbitrator in conformity Or " to two 
 with the provisions of the Arbitration Act, 1889. an dan 
 In witness, etc. umpire '' 
 
 Form 3. 
 
 Deed of Partnership betiveen Three Solicitors. 
 
 This Indenture made the day of 
 
 between A. of and B. of and C. 
 
188 
 
 FURMH. 
 
 Part in. of . Whereas the said A. has for some years 
 
 '""" _ p as t carried on the business of a solicitor at 
 
 and whereas the said A. has agreed to take the said 
 B. and C. into partnership with him in the said 
 business upon the terms hereinafter appearing. 
 
 Now this Indenture Witnesseth as follows (that is 
 to say) : — 1, 2, 3, 4. Samr ax in Form 2. 
 
 5. The business of the partnership shall be 
 carried on at the leasehold premises, No. 
 in which are vested in the said A. for a 
 
 term of years under an indenture of lease dated, 
 See., and made between, <Xrc, at the rent of £ 
 per annum or at such other place or places as the 
 partners, or a majority of them, shall from time 
 to time determine. 
 
 6 and 7. Same an in Form 2. 
 
 8. The capital of the partnership shall consist 
 of the said leasehold premises. No. Street 
 aforesaid, and the office furniture, books, boxes, 
 safes, and fittings, which are now in or on the 
 said premises, and of the sum of i'2,100, which is 
 to be contributed by the partners in equal shares, 
 and is to be paid into the firm's account as soon 
 as possible after the execution of these presents. 
 
 9. The said leasehold premises and office 
 furniture, books, boxes, safes, and fittings are 
 the property of the said A., but are to become the 
 property of the partnership. The value thereof, 
 which is to be taken to be i: shall be credited 
 to the said A. as additional capital brought in by 
 him into the said business. 
 
 10. The said A. shall hold the said leasehold 
 premises in trust for the firm, and shall be 
 
FORMS. 189 
 
 indemnified by and at the expense of the partner- Part in. 
 
 Forms 
 
 ship against the rent and all covenants and condi- : — 
 
 tions on the part of the lessee in the said lease 
 contained as from the date of these presents. 
 
 II, 12, and 13. Same as in clauses 9, 10, and 11 
 in Form 2. 
 
 14. The partners shall be entitled to the net 
 profits of the said business in the shares following 
 (that is to say) : — The said A. to two equal third 
 parts, the said B. to one equal sixth part, and the 
 said C. to one other equal sixth part. The net 
 profits shall be divided as aforesaid immediately 
 after the settlement in manner herein provided 
 the annual general account in each year. 
 
 15 and 16. Same as clause 13 and 14 in Form 2. 
 
 17. No partner shall during the continuance of 
 the partnership without the written consent of the 
 other partners or partner do any of the things 
 following : — 
 
 (The rest to he the same as clause 8 in Form. 1, 
 omitting (h) and (g).) 
 
 18. No partner shall lend any money belonging 
 to or give any credit on behalf of the partnership 
 in any case in which the other partners or partner 
 shall have forbidden him to do so, nor shall he 
 undertake any professional business of any kind 
 after having been required by the other partners 
 or partner not to do so. 
 
 19. No partner shall hire or dismiss, except in 
 case of gross misconduct, any clerk or person in the 
 employment of the partnership, or take any articled 
 clerk without the consent of the other partners 
 or partner. 
 
190 FORMS. 
 
 Part in. 20. All moneys received' at any time by way of 
 
 Forms ' — premium from articled clerks shall be treated as 
 
 profits of the partnership business. 
 
 21. In the event of the firm or any partner 
 acting as solicitor for or on behalf of any of the 
 partners, or his wife or children, or their, his, or her 
 trustees, such business shall not be charged for 
 except as to payments out of pocket, and except 
 as to costs recovered against other parties in any 
 successful action, or defence or other proceedings, 
 or out of any fund or estate to which such action 
 or proceeding shall relate, which said costs shall 
 be carried to the credit of the partnership and 
 be dealt with as partnership profits. 
 
 22. If any partner shall be a trustee in any 
 matter or business, and shall not be entitled to act 
 as solicitor in respect of same, either by himself or 
 his firm, and to be paid as solicitor out of the 
 trust estate or otherwise, the other partners or 
 partner may act as such solicitors or solicitor on 
 their or his own account, and the partner who is 
 such trustee shall not be entitled to any share in 
 the profit costs arising out of such business or 
 matter. 
 
 23. Proper books of account shall be kept by 
 the partners and entries made therein of all such 
 matters, transactions, and things as are usually 
 entered in books of account kept by persons 
 engaged in concerns of a similar nature, and 
 including particulars of all attendances and profes- 
 sional business transacted by each partner, and 
 of all such names, times, and places as may be 
 necessary or useful for the manifestation of the 
 
FORMS. 191 
 
 business of the partnership. The said books of Part in. 
 account and other books, and all deeds, securities, 
 
 letters, papers, and documents belonging or ^ed^orby 
 relating to the partnership shall be kept at the p^evshi? 16 
 office for the time being of the partnership, and Act, 1890, 
 each partner shall at all reasonable times have omitted^ it 
 free access to examine and copy the same. shortentiie 
 
 24. If the said A. shall die during the partner- deed - 
 ship term the surviving partners or partner shall 
 during the remainder of the term pay to the 
 representatives of the said A. an annuity of 
 
 M by equal half-yearly payments, to com- 
 
 mence from the death of the said A., and to be 
 deemed to accrue from day to day, and the first 
 of such payments to be made at the end of 
 calendar months from the death of the said A. 
 
 25. Any partner may, during the continuance 
 of the said partnership term, assign to a son who 
 shall have become a duly qualified solicitor the 
 whole or a part of the share of capital and profits 
 of such partner in the said business, and to intro- 
 duce such son as a partner into the said firm to 
 the extent of the share so assigned to him, and 
 such son shall on his accession execute a proper 
 deed binding him to observe all the provisions 
 herein contained, so far as the same may be 
 applicable to him, and containing all necessary 
 and proper provisions for continuing such part- 
 nership in accordance with the terms of these 
 presents. 
 
 26. Same as clause 18 in Form 2. 
 
 27. Same as clause 19 in Form 2, but with the 
 following additional words at the end: — ''All 
 
192 
 
 FORMS. 
 
 Part in. documents and papers relating to the said business 
 Form8 shall, subject to the consent of the clients to 
 whom the same respectively shall belong, shall 
 be delivered to the partner who shall have 
 usually attended to the business of such clients 
 respectively." 
 
 28. In case any partner shall die or become 
 bankrupt, or retire from the partnership during 
 the continuance of the said term, the share of 
 such deceased or outgoing partner shall, as from 
 the date of his death, bankruptcy, or retirement 
 (as the case may be), but subject as hereinafter 
 provided, belong to and be purchased by the sur- 
 viving or continuing partners or partner, if more 
 than one, in shares proportionate to their then 
 shares in the said business. 
 
 29. If the surviving or continuing partners or 
 partner shall, within months from the date of 
 the death of the late partner, or of his ceasing to 
 be a partner, as in clause 28 hereof aforesaid, give 
 to the latter or his legal personal representative or 
 trustee (as the case may be), a notice in writing 
 claiming that the partnership affairs shall be 
 wound up, or shall leave a notice in writing to the 
 like effect at the office for the time being of the 
 partnership, then the partnership affairs shall be 
 wound up as if the partnership had determined 
 by effluxion of time. 
 
 30. The amount to be paid to the outgoing 
 partner or his trustee, or the representatives of a 
 deceased partner, shall be ascertained by taking 
 a general account and making a statement in 
 writing of the share of such partner of the capital 
 
FORMS. 193 
 
 and effects of the partnership and of all unpaid Part in. 
 
 profits and interest on capital belonging to him — : — 
 
 at the date of his death, bankruptcy, or retire- 
 ment (as the case may be), and for this purpose 
 a valuation shall be made of all assets or effects 
 requiring valuation (the share of goodwill in any 
 case being taken to be £ ), and the amount 
 
 ascertained to be due to the outgoing partner or 
 his trustee, or the representatives of the deceased 
 partner, shall be paid with interest on the same 
 or on any portion from time to time remaining 
 unpaid by three equal payments at the end of 
 seven, fourteen, and twenty-one calendar months 
 respectively from the date of such death, bankruptcy, 
 or retirement as aforesaid. All necessary and con- 
 venient deeds, documents, and things shall, at the 
 expense of the surviving or continuing partners or 
 partner, be executed and done for effectually vesting 
 the share of the outgoing or deceased partner in the 
 business and assets of the partnership in the sur- 
 viving or continuing partners or partner and for 
 effectually indemnifying the outgoing partner or his 
 trustee, or the estate of the deceased partner (as the 
 case maybe) from the liabilities of the partnership, 
 and all documents and papers relating to the business 
 of the firm shall (subject to the claims of clients 
 to whom the same shall belong) remain with or 
 be delivered to the surviving or continuing partners 
 or partner. 
 
 31, 32 and 33. Same as clauses 23, 24, and 25 
 in Fur in 2. 
 
 In witness, &c. 
 
194 
 
 FORMS. 
 
 Part in. Form 4. 
 
 Forms. 
 
 Deed of Dissolution of Partnership. 
 
 This Indenture, made the day of 
 
 between A. of the one part and B. and C. of the 
 other part. 
 
 Whereas the said parties have hitherto 
 carried on the business of in partnership, 
 
 under articles of partnership dated the day 
 
 of and under such articles the capital and 
 
 assets of the partnership belong to them in equal 
 shares. And whereas the property of the partner- 
 ship consists of the leasehold properties specified 
 in the Schedule hereto, which are vested in the 
 said C. in trust for the said parties, and also of 
 certain machinery, fixtures, and plant and also the 
 stock-in-trade, materials, goodwill, book-debts, 
 contracts, and effects used in the said business 
 or belonging to the partnership. And whereas it 
 has been agreed between the said parties that the 
 said partnership shall be dissolved as regards the 
 said A. as from the day of next, and 
 
 notice of such dissolution has been signed by 
 them respectively for insertion in the London 
 Gazette. And whereas it has been further agreed 
 between the parties that as from the day 
 
 of the said business shall be carried on by 
 
 the said B. and C. alone, and that the said B. 
 and C. shall pay to the said A. the net value of 
 his share in the goodwill and property of the 
 partnership as on the said day of 
 
 and shall take over all debts and liabilities of the 
 partnership outstanding on the same day and 
 
FORMS. 195 
 
 indemnify the said A. in manner hereinafter Part in 
 
 Forms. 
 
 appearing, and that in consideration of the 
 premises the said A. shall assign to the said B. 
 and C. absolutely his one equal third share of 
 and in the said business and partnership pro- 
 perty, and shall enter into the covenant by him 
 hereinafter contained. And whereas a general 
 account and valuation have been taken and made 
 of the goodwill, assets, and liabilities of the 
 partnership, and it has been agreed that the net 
 value of the said share of the said A., after pro- 
 viding for all the liabilities of the said partner- 
 ship as on the said day of is the 
 sum of £ . And whereas for the purpose 
 of stamp duty it has been agreed that the sum 
 of £ shall be taken to be the value of the 
 said share of the said A. in the said leasehold leaseholds 
 premises, and the sum of £ shall be the SfgZ'by 
 value of his share in the residue of the partner- this deed; but 
 
 x in every case 
 
 ship property and goodwill. Now this Indenture it will be 
 witnesseth that in pursuance of the said agree- aSg^the 
 ment and in consideration of the premises, the jj^^dy.so 
 said parties hereby respectively declare that the as to keep the 
 
 ,., n ill z j partnership 
 
 partnership between them shall, so tar as regards ofi the title. 
 the said A., be dissolved as from the said Frequently 
 
 day of . And this Indenture also witnesseth representing 
 
 that in further pursuance of the said agreement Hj 68 ^™?* 
 and in consideration of the sum of £ now partner is 
 
 paid to the said A. by the said B. and C, the said ments y n S ' 
 A. as beneficial owner hereby assigns and transfers of t e h ed c d a n tes ' 
 to the said B. and C. All that one equal undivided tinuing 
 
 . , . . -i ■ .a partners give 
 
 third part or share ot the said A. ot and in the a bond for the 
 fixed and movable machinery, plant, moneys, ?hl?ame.°in 
 
 o2 
 
196 
 
 FORMS. 
 
 Part III. 
 Forms. 
 
 either case 
 the circum- 
 stances should 
 be shortly 
 recited, and 
 the operative 
 part of the 
 deed, of 
 course, 
 altered 
 accordingly. 
 
 stock-in-trade, contracts, book-debts, goodwill and 
 effects of the said partnership, To hold the same 
 unto the said B. and C. absolutely. And the said 
 A., as regards the share hereby assigned by him 
 as aforesaid, hereby appoints the said B. and C. 
 and the survivor of them, the attorneys or attorney 
 of him the said A., in the joint names of the said 
 B. and C. or otherwise, to demand, sue for, and 
 receive all credits, moneys, and things of the said 
 partnership hereby dissolved, and to give effectual 
 receipts and discharges for the same respectively, 
 and to use all such remedies or proceedings for 
 the purpose of recovering and getting in the same 
 as may be deemed expedient, and for all or any of 
 such purposes to appoint a substitute or substitutes, 
 and to revoke such substitution, and generally 
 to act in such manner as may be requisite for 
 giving to the said B. and C. the full benefit of the 
 assignment hereby made. And the said A. hereby 
 covenants with the said B. and C. that he the said 
 
 A. will not, at any time hereafter during his life, 
 carry on or be interested or concerned in carrying 
 on the business of within a radius of 
 miles from the town of . And this Inden- 
 ture further witnesseth that, in consideration of 
 the premises, the said A. hereby releases the said 
 
 B. and C. respectively, and the said B. and C. 
 hereby respectively release the said A. from the 
 said articles of partnership and everything therein 
 contained, and from all claims and demands there- 
 under or in relation thereto. And the said B. 
 and C. hereby jointly and severally covenant with 
 the said A. that the said B. and C, or one of them, 
 
/■ o/n/s. 197 
 
 or the persons deriving title under them, or one Part in. 
 
 of them, will pay all debts and liabilities of the - — °^^ — 
 
 said partnership hereby dissolved outstanding on 
 
 the said day of and will, as from the day 
 
 of pay and discharge all the debts and 
 
 liabilities of the same partnership, and will at all 
 
 times hereafter effectually keep indemnified the 
 
 said A. and all persons deriving title under him 
 
 and his and their estate and effects against all 
 
 costs, damages and expenses, claims and demands 
 
 in respect thereof, and also against all costs, 
 
 damages and expenses, by reason of any action 
 
 or proceeding which may be brought or instituted 
 
 by the said B. and C. or either of them, or other 
 
 person or persons, by virtue of the power of attorney 
 
 hereinbefore contained, or of any act, matter, or 
 
 thing in relation thereto. In witness, &c. 
 
 The Schedule above referred to. 
 Particulars of the leasehold properties. 
 
INDEX 
 
 The figures in thick type refer to the Sections of the Partnership 
 Act, 1890. 
 
 Account 
 
 of profits after dissolution, right of partner to, 42, 121, 128, 
 129. 
 
 Accounts 
 
 duty of partners to render, 28, 87. 
 
 Actions 
 
 by and against partners in name of firm, 135 seq 
 by firm, discovery of partners' names in, 136. 
 against firm, service in writ in, 137. 
 
 appearance cf partners in, 138. 
 
 between a partner and a firn', 140. 
 by trustee and solvent partners, 145. 
 
 Administration 
 
 of partnership estates, 147 seq. 
 
 Admission 
 
 of partners, when binding on the firm, 15, 57. 
 
 Advances 
 
 by partner to partnership, his light to interest on, 24, 75. 
 
 Adventure 
 joint, 6. 
 
 Agency 
 
 of partner for the firm, 5, 27. 
 
 right of partner to contribution independent of, 77. 
 
 principle of, applied to liability of firm for wrongful acts of 
 
 partners, 49. 
 rule of, against undisclosed profits, applies to partnership, 89. 
 
200 INDEX. 
 
 Agent 
 
 remuneration of, by share of profits, 2, 11. 
 
 Agreement 
 
 restrictive, between partners, inoperative if not notified, 8, 39. 
 
 Annuity 
 
 receipt of, from profits of business, does not create partnership, 
 2,12. 
 
 Arbitration 
 
 one partner cannot bind firm by submission to, 35. 
 
 clause in articles, power of arbitrator to award a dissolution 
 
 under, 98. 
 power to award a return of premium under, 120. 
 
 Assets 
 
 of partnership, final distribution of, 44, 130, 131. 
 purchaser of, is entitled to goodwill unless excepted by 
 implication, 111. 
 
 Assignee 
 
 not entitled to interfere in management of partnership, 31, 
 91. 
 
 Assignment 
 
 of share of profits, effect of, 79. 
 
 does not of itself dissolve partnership, 80. 
 
 of share in partnership, 31, 91, 33, 93. 
 
 Attachment 
 
 of debts owing from a firm, 140. 
 
 Authority 
 
 implied, of partners, 29 — 34. 
 
 Bank 
 
 number of partners in, may not exceed ten, 8. 
 
 Bankruptcy 
 
 creditor who has lent money for share of profits postponed in, 
 
 3, 19. 
 doctrine of holding out applies to administration in, 55. 
 of firm or partner, effect of, on agreement for conversion of 
 
 property, 70 
 of partner dissolves partnership, 33, 93. 
 bankrupt partner's estate not liable for subsequent debts of 
 
 firm, 36, 99. 
 bankrupt partner has no authority to bind the firm, 38, 101. 
 
INDEX. -201 
 
 Bankruptcy — continued. 
 
 Scots law of, when applicable, 47, 133. 
 adjudication and process against firm in, 141. 
 
 , where there is an infant partner, 141. 
 
 Procedure against Partners in : 
 
 consolidation of proceedings under joint and separate 
 
 petitions, 143. 
 petition against one partner by creditor of firm, 143. 
 petition may be dismissed as to some respondents only, 
 
 143. 
 one trustee to be appointed of estates of partners in same 
 
 firm, 144. 
 of one partner, creditor of firm may prove in, for purpose 
 
 of voting, 144. 
 dividends of joint and separate properties to be declared 
 
 together, 145. 
 actions by trustee of bankrupt partner together with 
 
 solvent partners, 145. 
 Bankruptcy Act of 1883 as to administration of partnership 
 
 estates, 150 : see Joint and Separate Estates. 
 effect of separate discharge of partner in, 173. 
 
 Bill of Exchange. See Negotiable Instruments. 
 
 Bills of Exchange Act, 1882. . .30, n. 
 
 Books 
 
 partnership, custody of and access to, 24, 76. 
 , right to copy, 82. 
 
 Borrowing Money 
 
 authority of partners in trading firm, 33. 
 
 Bovtll's Act, 18. 
 
 Business 
 
 definition of, 7, 45, 133. 
 
 partnership, right of partner to take part in, 24, 76, 78. 
 
 ■Charging Order 
 
 against share of partnerin partnership property for his separate 
 
 debt, 23, 71. 
 not a protected transaction within Bankruptcy Act, 1883... 74, n. 
 
 Child 
 
 of deceased partner, receiving share of profits, not liable for 
 partnership debts, 2, 11. 
 
202 IShKX. 
 
 Commandite 
 
 partnership in, 18. 
 
 Common Ownership 
 
 of property does not necessarily create partnership, 5. 
 
 Companies 
 
 distinguished from ordinary partnerships, 7. 
 
 Companies Act, 1862.. .32. 
 
 partnerships unlawful under, 8. 
 
 Company 
 
 membership of, is not partnership, 1, 1, 7. 
 
 " Company " 
 
 use of, not an assumption of a corporate name, 23, 24. 
 
 Competition 
 
 of partner with firm, 30, 89, 90. 
 
 Contracts 
 
 partnership, specific performance of, not generally granted,"6. 
 
 Conversion 
 
 of real estate being partnership property, 22, 69. 
 
 of partnership property into separate property, and rice versa, 
 
 22, 69, 70. 
 fraudulent, of partnership property, 155, 156, 160, 163, 164. 
 
 Corporation 
 
 assumption of corporate name, whether punishable, 23. 
 whether corporation may trade in its corporate name where the 
 name infringes a trade name, 26. 
 
 Cost-Book Company 
 
 procedure against share of member in, for his separate debt, 
 72—74. 
 
 Costs] 
 
 incurred after dissolution, liability of dormant partners for, 59. 
 
 Court 
 
 winding-up of business by, 10G. 
 
 power of, upon dissolution, not excluded by clause in articles, 
 110. 
 
 definition of, 45, 132. 
 
 may dismiss petition against some respondents only, 143. 
 Credit ' 
 
 of linn, partner cannot'pledge, for private[purposes, 7, 35. 
 
INDEX. 203 
 
 Creditor 
 
 receiving share of profits, postponed till claims of other creditors 
 for value satisfied, 3, 19. 
 
 Creditors 
 
 of partner exceeding his authority, 48, 49. 
 
 notice of dissolution to, 98 — 100. 
 v of firm, may present petition against one partner, 143. 
 
 may prove in separate bankruptcy for purposes of 
 
 voting, 144. 
 joint and separate, 147, 150, 169. 
 partners may not prove in competition with, 158. , 
 rights of, against estate of deceased partner, 168. 
 
 Customers 
 
 dealing with old, by vendor of business, 113. 
 
 by outgoing partner, 114. 
 
 Death 
 
 dissolution of partnership by, 33, 93, 36, 99. 
 
 of partner after writ and appearance in action against firm, 
 138. 
 
 Debt 
 
 receipt of, by instalments does not create partnership, 2, 11. 
 power of partner to accept shares in satisfaction of, 35. 
 separate judgment, of partner, procedure against partnership 
 
 property for, 23, 71. 
 share of retiring or deceased partner is a, 43, 130. 
 
 Debts 
 
 due to firm, partner's power to give receipts for, 30. 
 partnership, not joint and several, 42: see Joint and Separate 
 
 Estates. 
 liability of partners for, 9, 41. 
 retiring partner not liable for, where contracted after his 
 
 retirement, 36, 99. 
 owing by firm, attachment of, 140. 
 
 Deed 
 
 partner cannot bind firm by, without express authority, 34. 
 
 Directors 
 i of numerous partnerships, limited authority of, 32. 
 
 Discovery 
 
 of individual partners in action by firm, 136. 
 
204 INDUS. 
 
 Dissolution of Partnership 
 
 liabi ity of dormant partner for costs incurred after, 59. 
 
 by retirement of partner, 32, 92. 
 
 by bankruptcy, &c, 33, 93. 
 
 by death, 33, 93. 
 
 by assignment of share, 33, 93. 
 
 by the partnership business becoming unlawful, 34, 93. 
 
 by the Court for lunacy, misconduct, &c, of a partner, 
 
 35, 94. 
 
 at suit of partner of unsound mind, 96. 
 
 what misconduct is ground for, 97. 
 
 rights of creditors against ostensible partners not affected by, 
 
 36, 98. 
 
 power of arbitrator to award under clause in articles, 98. 
 
 notification of, in Gazette, sufficient, 36, 98. 
 
 right of partners to notify, 37, 100. 
 
 authority of partners after, 38, 101. 
 
 application of partnership property upon, 39, 105. 
 
 appointment of receiver upon, 106. 
 
 sale of goodwill upon, 110. 
 
 use of partnership name after, whether it can be restrained, 115. 
 
 premature, apportionment of premium on, 40, 116. 
 
 on what principle apportionment to be made, quare, 119. 
 
 arbitrator may award return of premium under common arbi- 
 tration clause in articles, 120. 
 
 on ground of fraud, effect of, 41, 120. 
 
 profits after, right to account of, when capital improperly 
 retained in business, 42, 121. 
 
 final distribution of assets upon, 44, 130, 131. 
 
 Estate 
 
 of deceased partner, nature of its liability, 42. 
 
 not liable for partnership debts contracted 
 
 after death, 36, 99. 
 
 Estoppel 
 
 liability by " holding out " depends on principle of, 54. 
 by negligence, doctrine of, not applicable in case of fraud of 
 partner, 167. 
 
 Execution 
 
 issuable only upon a judgment against the firm, 23, 71. 
 against partnership property for partner's separate debt 
 
 abolished, 23, 71. 
 on judgment against partners in name of firm, 139. 
 
INflJSX. 205 
 
 Executors 
 
 of deceased partner, duties of surviving partners who are, 126. 
 
 Expulsion 
 
 of partner, 25, 82. 
 
 Firm 
 
 definition of, and use of firm name, 4, 21 — 27. 
 is not a person in law, 21. 
 exclusive right of, to trade name, 24. 
 * actions by and against partners in name of, 135. 
 authority of partners as agents of, 5, 27 seq. 
 guaranties given for or to, 35. 
 cases where acts of one partner do not bind, 34. 
 partners bound by acts on behalf, 6, 35. 
 not bound by attempts of partner to use partnership credit for 
 
 private purposes, 7, 35. 
 effect of notice that acts of partner do not bind the, 8, 39. 
 liability of partners for debts of, 9, 41. 
 liability of, for wrongs, 10, 44. 
 liability of, ior fraud, &c. of partner in course of partnership 
 
 business, 10, 11, 44. 
 liability of, for money or property of third persons misapplied 
 
 by partners, 11, 44. 
 grounds of the liability in such cases, 48. 
 how far bound by admissions of partners, 15, 57. 
 assumption of debts by new, 17, 58, 61. 
 partner must not compete with, 30, 89, 90. 
 change in, does not affect rights of creditors without notice,. 
 
 36, 98. 
 not bound by acts of bankrupt partner, 38, 101. 
 judgment creditor of, not bound to resort first to partnership. 
 
 property, 108. 
 Eules of Court as to partners suing and being sued in name of,. 
 
 135 seq. 
 service of writ in action against, 137. 
 judgment against partners in name of, 139. 
 application of Eules to persons trading as a firm, 141. 
 creditor of, may present petition against one partner only,jl43. 
 creditors of, their limited right to prove in separate bank- 
 ruptcy of partners, 144. 
 creditors of, their exceptional right to prove against separate 
 
 estate in certain cases, 154. 
 creditors of, double proof by, against joint and separate estates. 
 
 in case of distinct contracts, 168, 171. 
 
206 
 
 INDEX. 
 
 Firm Name 
 
 sole trader under, 141. 
 
 use of, in actions between firms having common member, 140. 
 
 Forms, 174. 
 
 France 
 
 law of, as to transactions analogous to "joint adventure," 7. 
 
 as to name of firm, 24. 
 
 as to administration of partnership estates, 153. 
 
 Fraud 
 
 in conduct of partnership business, liability of firm for, 10, 11, 
 
 44. 
 conversion of partnership property to partner's separate use by, 
 
 11, 44, 50, 155, 156, 160, 163, 164. 
 defrauded partner's lien when partnership dissolved for, 41, 
 
 120. 
 
 Garnishee Order 
 
 Ord. XLV. applies to firm notwithstanding residence abroad 
 of one or more partners, 140. 
 
 Gazette, London 
 
 effect of notice of dissolution in, 36, 98, 101. 
 
 Germany 
 
 law of, as to name of firm, 24. 
 
 as to administration of partnership estates, 153, 154. 
 
 Goods 
 
 implied authority of partner to buy, in usual course of business, 
 30, 33, 34. 
 
 Goodwill 
 
 as to seller of, receiving share of profits, 2, 12. 
 
 sale of, on dissolution of partnership, 110. 
 
 right of partner to order for sale of, 110. 
 
 passes under sale of " assets," unless excepted by implication, 
 
 111. 
 nature and incidents of, 113. 
 does not " survive," 114. 
 does not exist in solicitor's business, 115. 
 
 " (Ikoss Kkturns " 
 
 the sharing of, does not necessarily create a partnership, 5, 
 2, 10. 
 
IS'hEX, 207 
 
 Guaranty 
 
 one partner cannot generally bind firm by, 35. 
 
 continuing, to or for firm, revoked by change in firm, 18, 62. 
 
 " Holding Out " 
 
 liability as partner by, 14, 53. 
 
 what amounts to, 55. 
 
 the rule applies to administration in bankruptcy, 55. 
 
 does not bind deceased partner's estate, 56. 
 
 does not apply to wrongs independent of contract, 
 
 56, 57. 
 liability of retired partner by, 56. 
 
 Illegality 
 
 of partnership business dissolves the partnership, 34, 93, 94. 
 
 Indemnity 
 
 right of partners to, 24, 75, 77. 
 
 Indian Contract Act 
 
 definition of partnership in, 3. 
 
 as to companies not subject to ordinary law of partnership, 7. 
 
 effect of notice under, that firm will not be bound by acts of 
 
 partner, 40. 
 as to presumed equality of shares, 75. 
 on authority of partners after dissolution, 104. 
 as to joint and separate debts of partner, 151. 
 
 Indian Trusts Act, 53. 
 
 Infant 
 
 partner, receiving order against firm with, 141, 142. 
 
 Interest 
 
 right of partner to, on advances to firm, 24, 75. 
 
 allowed at option instead of profits on capital improperly 
 
 retained in business, 42, 122. 
 mixed claims for profits and interest not allowed, 129. 
 what percentage allowed, 129. 
 
 "Joint Adventure," 6. 
 
 Joint and Separate Estates 
 
 distribution of dividends of, 145. 
 rules for administration of, 147 seq. 
 
 general rule : the joint estate primarily liable for debts of firm, 
 the separate estates f6r separate debts, 147, 150. 
 
208 1XVKX. 
 
 Joint and Separate Estates — continued. 
 
 principle of this doubtful : difference between legal and mer- 
 cantile rule, 151, 152. 
 partners must not compete with creditors, 158. 
 K.reeptional Bir/hts of Proof : 
 
 by creditors of firm against separate estates, 154. 
 
 by joint estate against separate estates or estate of minor 
 
 firm, 155. 
 by partners against joint estate or separate estates of other 
 
 partners, 158, 159. 
 by wife of partner, 159. 
 principles of the exceptional right in cases of fraudulent 
 
 conversion, 163 seq. 
 by joint creditors holding separate security, or conversely, 
 169. 
 
 Joint Tenancy 
 
 is not partnership, 2, 10. 
 
 Judgment. See Execution. 
 
 Land 
 
 being partnership property, how held, 20, 65, 68. 
 when it becomes partnership property, 69. 
 treated as personalty as between partners, 22, 69. 
 
 Lease 
 
 of partnership premises, one partner cannot renew, 81, n. 
 
 Liability 
 
 of incoming and outgoing partners, 17, 58, 59. 
 
 Lien 
 
 of partners on partnership property. 107. 
 against whom available, 108. 
 to what property it applies, 109. 
 
 of defrauded partners on assets when partnership dissolved for 
 fraud, 41, 120. 
 
 Limitations, Statute ok 
 
 operation of, against claims of deceased partner's representa- 
 tives, 130. 
 
 Loan 
 
 in consideration of rate of interest varying with profits, no 
 
 test of partnership. 2, 11. 
 to firm by wife of partner, 159. 
 
INDEX. 
 
 209 
 
 Lunacy 
 
 as ground of dissolution, 35, 94. 
 
 injunction against lunatic partner pending action for dissolu- 
 tion, 95. 
 
 lunatic partner himself may sue by committee or next friend 
 for dissolution, 96. 
 
 Majority 
 
 power of, to decide differences, 24, 76, 81. 
 
 expel a partner, only by express agreement, 25, 82. 
 
 Marriage 
 
 of female partner, does not now dissolve partnership, 93, n. > 
 
 Married Woman 
 
 may prove against joint estate for money lent to husband's 
 
 firm, 159. 
 trading under firm name, cannot be made bankrupt on 
 judgment against her in firm name, 141. 
 
 Married Women's Property Acts, 1882 — 1893. ..93, n. 
 
 Misconduct 
 
 of partner, as ground for dissolution, 35, 95, 97. 
 
 Misrepresentation. See Fraud. 
 
 Money 
 
 implied power of partner in trading firm to borrow, 33. 
 misapplication of client's money by partner, when firm liable 
 
 for, 11, 44, 50. 
 partnership, property bought with, 21, 68. 
 
 Mortgage 
 
 equitable, of partnership property by partner, 30, 33. 
 legal, must be act of all the partners, 33. 
 
 Name 
 
 law as to use of, in business, 22, 23. 
 assumption of corporate, whether punishable, 23. 
 of firm, use of, after sale of goodwill, 113, 114. 
 dissolution, 115, 116. 
 
 Negligence 
 
 estoppel by, doctrine of, not applicable in case of fraud by 
 partner, 167. 
 
210 INDEX. 
 
 Negotiable Instruments 
 
 partner in trading firm may issue, in name of firm, 30. 
 given in name of firm without authority, when firm not liable 
 on, 32. 
 
 Notice 
 
 of partner's want of authority, 8, 39. 
 
 to partner, when notice to the firm, 16, 58. 
 
 of dissolution, effect of, 36, 98, 99. 
 
 duty of partners to concur in, 37, 100. 
 
 question of, in cases of fraudulent appropriation of joint estate 
 by one partner, 160, 165. 
 
 Novation 
 
 on assumption of partnership debts by new firm, 62. 
 cannot be effected by agreement among partners without 
 creditor's assent, 62. 
 
 Option 
 
 to purchase outgoing partner's share, 42, 122, 12.1. 
 
 Partners 
 
 number of, limited in ordinary partnership, 8. 
 
 persons advancing money in consideration of share of profits, 
 
 &c, not necessarily, 2, 10, 11 : see Profits. 
 power of, to bind the firm as agents, 5. 27. 
 implied authority of, 29 — 34. 
 bound by acts on behalf of firm, 6, 35. 
 
 attempts by, to use credit of firm for private purposes, 7. 35. 
 may restrict authority of any partner by notice, 8, 39. 
 semble, not by mere agreement known to the creditor, 40. 
 admissions by, effect of, 40, 41. 
 liability of, for debts of firm, 9. 41. 
 notice to, when notice to firm, 16, 58. 
 liability of, for wrongs committed in course of partnership 
 
 business, 10, 44. 
 misapplication of third person's property by, 11, 44, 50. 
 test of firm's liability for wrongful acts of, 48. 
 improper employment of trust funds by, 13, 52. 
 persons liable as, by " holding out," 14, 53. 
 when retired partner may be so liable, 56. 
 liabilities of outgoing and incoming, on change of firm, 17, 
 
 58—62. 
 continuance of business by surviving, presumed to be on old 
 
 terms, 27, 84. 
 
INDEX. 211 
 
 Partners — continued, 
 
 misconduct of, as ground for dissolution, 35, 95, 97 : see 
 
 Dissolution. 
 authority of, after dissolution, 38, 101 : see Dissolution. 
 rights of, as to application of partnership property upon 
 
 dissolution, 39, 105. 
 lien of, on partnership property, 107. 
 
 its nature and extent, 107 — 109. 
 
 rights of, as to goodwill, 110. 
 
 to restrain use of partnership name, 115. 
 
 where partnership dissolved for fraud, 41, 120. 
 
 right of, to account of profits made after dissolution with 
 
 capital improperly retained, 42, 121. 
 purchase of shares of outgoing, under option in articles, 42, 
 
 122, 125. 
 claims against continuing, qua executors or trustees, 125, 126. 
 surviving, not trustees for deceased partner's share, 130. 
 may sue and be sued in name of firm, 135, 136. 
 so suing, must disclose names on demand of defendant, 136. 
 so sued, service of writ upon, 137. 
 appearance of, individually, 138. 
 
 appearance under protest of persons served as, 138, 139. 
 judgment against, in name of firm, execution upon, 139. 
 charging order against share of partner in partnership property, 
 
 for separate debts, 23, 71, 72. 
 proceedings in bankruptcy against, 143 seq : see Bankruptcy. 
 administration of estates of, 147 seq. : see Joint and Separate 
 
 Estates. 
 fraudulent conversion of partnership property to their private 
 
 use by, 155, 156, 160, 163, 164. 
 must not prove in competition with creditors of firm, 158. 
 effect of separate discharge of, in bankruptcy, 173. 
 Relations of Partners to one another, 63 seq. 
 
 terms of partnership variable only by consent, 19, 63. 
 conversion of partnership into several property or vice 
 
 versa, 22, 69. 
 shares of, in partnership property, 71, 24, 77. 
 
 presumed equal, 24, 75, 77. 
 
 right of, to indemnity, 24, 75, 77. 
 
 to interest on advances to partnership, 24, 75. 
 
 to take part in business, 24, 76. 
 
 not entitled to remuneration, 24, 76. 
 
 power of majority among, to decide differences, 24, 76, 81. 
 consent of all necessary for change of nature or place of 
 business, 24, 76, 81. 
 
 P2 
 
212 INDEX. 
 
 PARTNERS — routi mi fll. 
 
 Relations of 1'urinn-s to one another — roidirmeil. 
 
 consent of all necessary for introduction of new partner, 
 24, 76, 79. 
 
 right of, to inspect and copy books, 24, 76, 82. 
 
 none can be expelled save under express power, 25, 82. 
 
 retirement from partnership, when allowed, 26, 83. 
 
 duty of, to act for common advantage, 28, 87. 
 
 to render accounts, 28, 87. 
 
 to account to firm and not make undisclosed 
 
 profits, 29, 88. 
 
 not to compete with firm, 30, 89, 90. 
 
 conduct of, as ground for dissolution, 97. 
 
 right of, to notify dissolution, 37, 100. 
 
 application of Rules of Court to actions between co- 
 partners, 140. 
 Estate, of Deceit-serf Partner: 
 
 cannot be made liable on doctrine of " holding out," 56. 
 
 not liable for subsequent debts of firm, 36, 99. 
 
 when entitled to share of subsequent profits, 42, 121, 122. 
 
 duty of, to surviving partners, 126. 
 
 deceased partner's share is a debt due from the firm, 43, 
 130. 
 
 claims of, against surviving partners subject to Statute of 
 Limitations, 130. 
 
 rights of creditors against, 16s. 
 
 administration of : see Joint and Separate Estates. 
 
 Partnership 
 
 definition of, 1, 1 — 3. 
 
 distinct from common ownership, o. 
 
 and from sharing gross returns. ">. 
 number of members limited by Companies Act. S. 
 rule in Co.r v. HH.-mnn, 12. 17, 18. 
 Act to amend Law of, 18. 
 debts, liability of partners for, 9. 41. 
 impioper employment of trust moneys in, 13, 52. 
 I en us of, can only be varied by consent of all the partners, 19, 63. 
 business, rights and duties of partners in relation of, 19, 63 seq. 
 property, power of partners to dispose of, 20, 65 seq. . see 
 
 Partnership Property. 
 business, differences as to matters in, to be decided by majority, 
 
 24, 76, 81. 
 business, nature or place of, not to be changed without consent 
 
 of all partners, 24, 76. 
 
JXDEX. 213 
 
 PAKTNEESHIP — ctmti-lllteil. 
 
 books, custody of and access to, 24, 76. 
 
 retirement of partners from, 26, 83. 
 
 continuance of, after lapse of term, 27, 84. 
 
 rights of assignee of share in, 31, 91. 
 
 how dissolved, 32 seq., 92 : see Dissolution of Partnership. 
 
 Partnership Property 
 
 implied authority of partners to sell or pledge, 33. 
 
 what it is, 20, 65. 
 
 customary valuation of, binding, 64. 
 
 interest of partners in, 69. 
 
 treatment of land which is, 22, 69. 
 
 conversion of, into several property of partners, 69. 
 
 what is share of partners in, 71. 
 
 charging order upon interest of partner in, upon judgment for 
 
 his separate debt, 23, 71. 
 rights of partners as to application of, 39, 105. 
 partners' lien upon, 107. 
 creditors of firm have no specific right against, until taken in 
 
 execution, 109. 
 execution against, upon judgment against partners in name of 
 
 firm, 139. 
 fraudulent conversion of, to partner's private use, 155, 160, 
 
 163, 164. 
 rights of separate creditors holding security upon, 169. 
 
 Part-ownership 
 
 distinguished from partnership, 5, 2, 10. 
 
 Patents, Designs and Teade Marks Act, 1883. ..25. 
 
 Personal Estate 
 
 land, held as partnership property, is such as between the 
 partners, 22, 69. 
 
 Pledge 
 
 of partnership property, implied authority of partner as to, 33. 
 
 Premium 
 
 paid on entering partnership, apportionment of, on premature 
 
 dissolution, 40, 116. 
 arbitrator may award a return of, under common arbitration 
 
 clause in articles, 120. 
 
214 INDEX. 
 
 Profits 
 
 no partnership without division of, 4. 
 
 but sharing profits is not conclusive evidence of partners!;,?, 
 
 2, 10. 
 as to agent remunerated by share of, 2, 11. 
 
 widows or children of partners receiving share of, 11. 
 
 seller of goodwill receiving share of, 2, 12. 
 
 contract to pay fixed sum out of, 11. 
 
 creditor receiving share of, postponed to others, 3, 19. 
 statutory rule as to persons advancing money in consideration 
 
 of share of, 3, 19. 
 this protects only hona fide loans, 15, 20. 
 rule as to sharing of, by partners, 24, 75, 77. 
 assignment by partner of share of, its effect, 79. 
 
 does not of itself dissolve partnership, 80. 
 
 partners must account for, to firm, 29, 88. 
 after dissolution, right to account of, 42, 121, 128, 129. 
 claim for such account must be distinct and single, 128. 
 mixed claims for profits and interest not allowed, 129. 
 
 Proof 
 
 rights of, in administration of partnership estates : ate Bank- 
 ruptcy; Joint and Separate Estates. 
 
 Property 
 
 partnership, conversion of, 22, 69. 
 
 Eatification 
 
 of partner's unauthorized dealings with partnership funds, 165. 
 
 Eeceipt 
 
 power of partner to give, 34. 
 
 Eecetver 
 
 appointment of, after dissolution, 106, n. 
 
 Eegistration 
 
 under Companies Act, 8, 9. 
 
 Eelease 
 
 by partner, firm bound by, i>4. 
 
 Eemdneration 
 
 partner not entitled to, for acting in partnership business, 24, 
 76, 79. 
 
 Eepresentation 
 
 made by partner, effect of, 15, 57. 
 
INDEX. 215 
 
 Retirement 
 
 of partner from partnership at will, 26, 83. 
 
 partnership dissolved upon notice by one partner of his, 32, 92. 
 
 liability of partner after, 56, 36, 99. 
 
 Returns 
 
 gross, sharing of, 5, 2, 10. 
 
 Rules of Court 
 
 procedure against partnership property for a partner's separate 
 
 judgment debt, 73, 74. 
 as to actions in name of firm, 135, 136. 
 discovery of partners' names in action by firm, 138. 
 
 service of writ in action against firm, 137. 
 
 appearance of partners, 138. 
 
 under protest of a person served as a partner, 
 
 138, 139. 
 
 execution upon judgment against firm, 139. 
 
 garnishee orders, 140. 
 
 Rules apply to actions between co-partners, and to person 
 
 trading as a firm, 140, 141. 
 do not allow adjudication against firm in firm name, 141. 
 as to service out of the jurisdiction, 142. 
 
 Sale 
 
 of partnership property by partner, 33. 
 
 Scotland 
 
 law of, as to "joint adventure," 6. 
 
 treats the firm as a person, 22. 
 
 as to liability of partners for debts of firm, 43. 
 
 as to administration of partnership estates, 152. 
 
 bankruptcy of partner or of the firm in, 47, 133. 
 partner domiciled in cannot be sued under Ord. XXfVTIlA. 
 r. 11. ..141. 
 
 Security 
 
 rights of joint creditor holding separate, or separate creditor 
 holding joint, 169. 
 
 Separate Estate : see Bankruptcy ; Joint and Separate 
 Estates. 
 
 Separate Trade 
 
 between a partner and the firm, 155, 159. 
 
 Servants 
 
 authority of partner as to hiring and dismissal of, 30, 34. 
 receiving share of profits, not liable for partnership debts, 2, 11. 
 
210 LVD EX. 
 
 Shaee 
 
 of partner in partnership property, what is, 71. 
 
 effect of assignment of, 31, 
 
 91. 
 
 ._. how ascertained, 130. 
 
 of profits after dissolution, 42, 121, 128, 129. 
 
 Shakes 
 
 in partnership, presumed equality of, 24, 75, 77. 
 
 may be made transferable by express agreement 
 
 between partners, 80. 
 of retiring or deceased partners are debts due from firm, 43, 130. 
 
 Solicitor 
 
 employment of to defend actions, 34. 
 
 no goodwill in business of, 115. 
 
 implied authority of, in partnership matters, 48. 
 
 Specific Performance 
 
 of partnership contract, not generally granted, 6. 
 
 Sub-partnership 
 
 creation and effect of, 80. 
 
 Surviving Partners 
 
 continuance of business by, presumed to be on old terms, 27, 
 
 84. 
 duty of, to representatives of deceased partner. 42, 122, 1'26. 
 are not, as such, trustees, 130. 
 
 Switzerland 
 
 law of, as to administration of partnership estates. 153. 
 
 Torts: -w Wrongs. 
 
 Trade Mxkk 
 
 relation of, to trade name. 24. 
 
 Trade Names 
 
 use of, and exclusive right to. 22 — 25. 
 
 foreign laws as to. 24. 
 
 cannot exist apart from actual business, 27. 
 
 Timuxo Partnerships, 20. 
 
 TlilTNT 
 
 breach of. by partner employing trust funds in partnership 
 business, 13, 52. 
 
INDEX. 217 
 
 Trustee 
 
 mixed duties of partner who is, 126. 
 
 surviving partner as such, is not, 130. 
 
 one only appointed of estates of partners in same firm, 144. 
 
 actions by, jointly with solvent partners, 145. 
 
 Unlawful 
 
 partnership dissolved on business becoming, 34, 93. 
 
 Valuation 
 
 of partnership property, firm bound by accustomed mode even 
 against articles, 64. 
 
 Vendor 
 
 rights and duties of, upon sale of goodwill, 110. 
 
 Widow 
 
 of deceased partner, receiving share of profits, not liable for 
 partnership debts, 2, 11. 
 
 Winding-up 
 
 of business by the Court, 106 : see Goodwill ; Joint and 
 Separate Estates. 
 
 Writ 
 
 service of, in action against firm, 137. 
 ■ out of the jurisdiction, 142. 
 
 Wrongs 
 
 liability of firm for, 10, 44. 
 
 partner's liability for, joint and several, 12, 44. 
 
 do ctrine of " holding out " not applicable to, 56. 
 
 BRADBUBY, AGNEW, & CO. LD., PRINTERS, LONDON AND TONBRIDGE. 
 
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 CONVEYANCING.— Brickdale & Sheldon.— Vide "Land Transfer." 
 
 Dart. — Vide " Vendors and Purchasers." 
 
 Dickins' Precedents of General Requisitions on Title, with Ex- 
 planatory Notes and Observations. Second Edition. By Hebbeet 
 A. Dickins, Esq., Solioitor. Royal 12mo. 1898. 5s. 
 
 " Wo cannot, do bettor than advise every lawyer with a conveyancing practice 
 to purchase tho little book and place it on his shelves forthwith." — Law Notes. 
 
 *,,* All standard Law Works are kept in Stock, in law calf and otlier bindings. 
 
119 & 120, CHANCERY LAN E, LONDON, W.O. 7 
 
 CONVEYANCING— continued. 
 Greenwood's 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 in 
 Conveyancing. — Ninth Edit. Edited by Harry. Greenwood, M.A., 
 LL.D., Esq., Barrister-at-Law. Roy. Svo. 1897. 20s. 
 
 " The ninth edition will maintain the reputation which the work has long ago 
 acquired of being one of the best expositions ■which the English lawyer possesses 
 of the present practice relating to the daily routine of conveyancing in solicitors' 
 offices. We have tested it at various points of a somewhat critical character, and 
 have no hesitation in pronouncing it up to date and in every way reliable as a 
 guide to modern conveyancing practice." — Literature. 
 
 " "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 Stu. Jo. 
 
 Hood and Challis' Conveyancing and Settled Land Acts, and 
 
 some other recent Acts affecting Conveyancing. With Commentaries. 
 By H. J. Hood and H. W. Challis. Eifth Edition. By H. W. 
 Cttat.t.ts, assisted by J. I. Stirling, Esqrs., Barristers-at-Law. 
 Royal 8vo. 1898. * 18s. 
 
 " That learned, excellent and useful work."— Law Times. 
 
 "This is the best collection of conveyancing statutes with which we are 
 acquainted. . . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recommendation from us." — Law Journal. 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds. — By W. Howland Jackson and Thorold Gosset, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1899. 7s. 6d. 
 
 " Not the least merit of the collection is that each Precedent is complete in 
 itself, so that no dipping about and adaptation from other parts of the book are 
 necessary." — Law Journal. 
 
 %* This forms a companion volume to " Investigation of Title" by 
 
 the same Authors, vide p. 17. 
 Palmer. — Vide " Company Law." 
 
 Prideaux's Precedents in Conveyancing — With Dissertations on 
 its Law and Practice. 18th Edit. By John Whttcombe and 
 Benjamin Lennahd Cheery, Esqrs., Barristers-at-Law. 2 vols. 
 Royal 8vo. 1900. 3/. 10s. 
 
 " 'Prideaux ' is the best work on Conveyancing." — Law Journal. 
 
 " Accurate, concise, clear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner." — 
 Law Times. 
 
 " Becent legislation has compelled the Editor to re-write some of the pre- 
 liminary dissertations. He has evidently taken great pains to incorporate the 
 effect of the Land Transfer Act of 1897."— The Times. 
 CORONERS. — Jervis on Coroners.— The Coroners Acts, 1887 and 
 1892. With Forms and Precedents. Sixth Edition. By R. E. 
 Melsheimer, Esq., Barrister-at-Law. Post 8vo. 1898. 10s. 6d. 
 
 " In all respects adequate and exhaustive." — Law Times. 
 COSTS. — Johnson's Bills of Costs in the High Court of Justice 
 and Court of Appeal, in the House of Lords and the Privy Council ; 
 with the Scales of Costs and Tables of Pees in use in the Houses of 
 Lords and Commons, relative to Private Bills ; Election Petitions, 
 Parliamentary and Municipal. Inquiries and Arbitrations under the 
 Lands Clauses Consolidation Act, the Light Railway Act and other 
 Arbitrations. Proceedings in the Court of the Railway and Canal 
 Commission, in the County Court and the Mayor's Courts. The 
 Scales of Costs and Tables of Fees in use in the Court of Passage, 
 Liverpool. Conveyancing Costs and Costs between Solicitors and 
 their Clients ; with Orders and Rules as to Costs and Court Fees, 
 and Notes and Decisions relating thereto. By Horace Maxwell 
 Johnson, Esq., Barrister-at-Law. Second Edition. Royal 8vo. 
 
 1900. ll - 15s - 
 
 " It is difficult to conceive how any costs clerk or solicitor can go wrong with 
 
 a work of this kind to guide him."— Law Times. 
 
 *' We consider the book marvellously accurate, and we are able to commend 
 
 it in all confidence. On the law of bills of costs the practitioner, let his business 
 
 be as wide as it may, wants nothing but such a work as the one before us." — 
 
 Law Notes. 
 
 %* AU standard Law Work are kept in Stock, in law calf and other Imdingi. 
 
8 STEVENS AND SONS, LIMITED, 
 
 COSTS — continued. 
 
 Summerhays and Toogood's Precedents of Bills of Costs, 
 Seventh Edition. By Thobnton Toogood, Thomas Chables Sttmmeb- 
 hatb, and C. Gilbebt Babbeb, Solicitors. Royal 8vo, 1896. U. 10s. 
 
 Webster's Parliamentary Costs.— Private Bills, Election Petitions, 
 Appeals, House of Lords. Fourth Edition. By C. Cavanagh, Esq., 
 Barrister-at-Law. Post 8vo. 1881. 20s. 
 
 COUNTY COURTS. — The Annual County Court Practice, 
 1900, — By His Honour Judge Shyly, Q.C. 2 vols. 8vo. 11. 5s. 
 " Invaluable to the County Court practitioner."— Law Journal. 
 
 COVENANTS.— Hamilton's Concise Treatise on the Law of 
 Covenants,— By G. Baldwin Hamilton, Esq., Barrister-at-Law 
 Demy 8vo. 1888. 7s. 6rf . 
 
 CRIMINAL LAW,— Archbold's Pleading, Evidence and Practicein 
 Criminal Cases.— With the Statutes, Precedents of Indictments, &c. 
 Twenty- second Edition. By William F. Cbaies and Guy Stephen- 
 son, Esqrs., Barristers-at-Law. Demy 8vo. 1900. 11. lis. 6d. 
 " Archbold ' is the one indispensable book for every barrister or solicitor who 
 practises regularly in the c rim inal Courts."— Solicitors' Journal, March 3, 1900. 
 Chitty's Collection of Statutes relating to Criminal Law.— (Re- 
 printed from ' ' Chitty' s Statutes.") With an Introduction and Index. 
 By W. E. Cbaies, Esq., Barrister-at-Law. Royal 8vo. 1894. 10*. 
 Disney and Gundrys Criminal Law.— A Sketch of its Principles 
 and Practice. By Henby W. Disney and Habold Gundby, Esqrs. 
 Barristers-at-Law. Demy 8vo. 1895. Is.Gd. 
 "We think we have here just what students want. The work is based upon a 
 perfect knowledge of the statute law, and is compiled from the best and most 
 recent authorities."— Law Times. 
 
 Kershaw's Brief Aids to Criminal Law.— With Notes on the Pro- 
 cedure and Evidence. By Hilton Kebshaw, Esq., Barrister-at- 
 Law. Royal 12mo. 1897. 3 S 
 
 Mews.— Vide "Digest." 
 
 Roscoe's Digest of the Law of Evidence in Criminal Cases 
 
 Twelfth Edition. By A. P. Peboeval Keep, Esq., Barrister-at- 
 Law. Demy8vo. 1898. \i_ \i S- gtf. 
 "To the criminal lawyer it is his guide, philosopher and friend. What 
 Boscoe says moBt judges will accept without question."— Law Times. 
 
 Russell's Treatise on Crimes and Misdemeanors,— Sixth Edit. 
 
 By Hobaoe Smith, Esq., Metropolitan Police Magistrate, and A. P 
 
 Peboeval Keep, Esq. 3 vols. Roy. 8vo. 1896. 5/. 15s. ed'. 
 
 " No library can be said to be complete without the new edition of Bussell on 
 
 Crimes." — Law Times. 
 
 "Indispensable in every Court of criminal justice here and in our Colonies." 
 — Ifie limes. — -^— ■ — 
 
 Shirley's Sketch ofthe Criminal Law.— Second Edition. ByCHABLES 
 Stephen Hunter, Esq., Barrister-at-Law. Demy8vo. 1889. 7s. 6d. 
 
 Warburton,— Vide " Leading Cases." Thring Tide "Navy." 
 
 DEATH DUTIES.— Freeth's Acts relating to the New Death Duty, 
 with an Introduction, A Digest, Copious Notes, and an Appendix 
 containing the Estate D uty Forms, and the Rules . Second Edition 
 By Evelyn Fbeeth, Esq., Deputy-Controller of Legaoy and Succes- 
 sion Duties. Demy 8vo. 1897. io s 6 rf 
 "The official position of the Author renders his opinion on questions of p'rocel 
 dure of great value, and we think that this book will be fouW very useful to 
 solicitors who have to prepare accounts for duty."— Solicitors' Journal. 
 Herman's Finance Act, 1 894, so far as it relates to the Death Duties 
 With an Introduction and Notes, and an Appendix of Forms. By 
 J. E. Haeman, Esq., Barrister-at-Law. Royal 12mo. 1894 5/ 
 DECISIONS OF SIR GEORGE JESSEL.-Peter's Analysis and 
 Digest ofthe Decisions of Sir George Jessel ; with Notes, &o 
 Jjy Apslby Pbtbb Petbb, Solioitor. Demy 8vo. 1883. 16s. 
 V M standard Law Works are kept in Stock; in law calf and other bindings'. 
 
119 & 120, CHANCERY LANE, LONDON, W.O. 9 
 
 DEBENTURES AND DEBENTURE STOCK,— Palmer's Com- 
 pany Precedents. — For use in relation to Companies subject to 
 the Companies Acts. 
 
 Part III. DEBENTURES AND DEBENTURE STOCK, including 
 Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, 
 Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- 
 cellaneous. With Copious Notes. Eighth Edition. By Feancis 
 Beaijfobt Palmee, Esq.,Barrister-at-Law. Royal 8 vo. 1900. 21s. 
 
 " The result of much careful study Simply invaluable to debenture- 
 holders and to the legal advisers of such investors." — Financial News, March 16. 
 
 " Embraces'practically the whole law relating to debentures and debenture 
 stock Musttakefrontrankamongtheworksonthesubject." — LawTimes. 
 
 DIARY.— Lawyers' Companion (The) and Diary, and London and 
 Provincial Law Directory for 1901, — For the use of the Legal 
 Profession, Public Companies, Justices, Merchants, Estate Agents, 
 Auctioneers, &c, &c. Edited by Edwin Layman, Esq., Barrister-at- 
 Law ; and contains Tables of Costs in the High Court of Judicature 
 and County Court, &c. ; Monthly Diary of County, Looal Government, 
 and Parish Business ; Oaths in Supreme Court ; Summary of Sta- 
 tutes of 1900 ; Alphabetical Index to the Practical Statutes since 
 1820 ; Schedule of Stamp Duties ; Legal Time, Interest, Discount, 
 Income, Wages and other Tables ; the New Death Duties ; and a 
 variety of matters of practical utility : together with a complete List 
 of the English Bar, and London and Country Solicitors, with date of 
 admission and appointments. Published Annt/ally. Fifty-fifth 
 Issue. 1901. (Nearly ready.) 
 
 Issued in the following forms, octavo size, strongly bound in cloth : — 
 
 1. Two days on a page, plain ....... 5s. 0d. 
 
 2. The above, inteeleaved with plain paper . . . .70 
 
 3. Two days on a page, ruled, with or without money columns . 5 6 
 
 4. The above, with money columns, uttebleaved with plain paper 8 
 6. Whole page for each day, plain 7 6 
 
 6. The above, inteeleaved with plain paper . . . .96 
 
 7. Whole page for each day, ruled, with or without money columns 8 6 
 
 8. The above, inteeleaved with plain paper . . . 10 6 
 
 9. Three days on a page, ruled blue lines, without money columns . 3 6 
 The Diary contains memoranda of Legal Business throughout the Tear, with 
 
 an Index for ready reference. 
 " The amount of information packed within the covers of this well-known 
 book of reference is almost incredible. In addition to the Diary, it contains 
 nearly 800 pages of closely printed matter, none of which could be omitted without, 
 perhaps, detracting from the usefulness of the book. The publishers seem to 
 have made it their aim to include in the Companion every item of information 
 which the most exacting lawyer could reasonably expect to find in its pages, 
 and it may safely be said that no practising solicitor, who has experienced the 
 luxury of having it at his elbow, will ever be likely to try to do without it." — 
 Law Journal. 
 
 " The legal Whitaker." — Saturday Renew . 
 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, withtheir Abbre- 
 viations. Third Edit. By Heney G. Rawson and James F. Remnant, 
 Esqrs., Barristers-at-Law. Fcap. 8vo. 1893. 6s. 6d. 
 
 " A wonderful little legal Dictionary." — Indermaur's Law Students' Journal. 
 Wharton's Law Lexicon, — Forming an Epitome of the Law of Eng- 
 land, and containing full Explanations of the Technical Terms and 
 Phrases thereof, both Ancient and Modern ; including the various 
 Legal Terms used in Commercial Business. Together with a Trans- 
 lation of the Latin Law Maxims and selected Titles from the Civil, 
 Scotch and Indian Law. Ninth Edition. By J. M. Lely, Esq., 
 Barrister-at-Law. Super-royal 8vo. 1892. 11. 18s. 
 
 " On almost every point both student and practitioner can gather information 
 from this invaluable book, which ought to be in every lawyer's office."— Law Notes. 
 
 ' ' One of the first books which every articled clerk and bar student should pro- 
 cure." — Law Students' Journal. 
 
 *J* All standard Law Works are kept in Stock, in law calf and other bindings. 
 * B 
 
10 STEVENS AND SONS, LIMITED, 
 
 DIGESTS.-Campbell's Ruling Cases.-Arranged, Annotated 1 and 
 Edited by Robeet Campbell, of Lincoln's Inn, Esq., Ba^ter-at- 
 Law Advocate of the Scotch Bar, assisted by other Members of the 
 Bar.' With American Notes by Ibvino Beowne, former ly . Editor of 
 the American Eeports, and the Hon. Leonaed A Jones. Royal 8vo. 
 1894^1900 Salfvellum, gilt top, net, each 25s. 
 
 The following Volumes have been published 
 
 I.— Abandonment— Action. 
 II.— Action— Amendment. 
 III.— Ancient Light— Banker. 
 IV.- Bankruptcy— Bill of Lading. 
 V.— Bill of Sale— Conflict of Laws. 
 VI.— Contract. 
 VII.— Conversion— Counsel. 
 VIII.— Criminal Law— Deed. 
 IX.— Defamation — Dramatic and 
 Musical Copyright. 
 X. — Easement — Estate. 
 
 XI.— Estoppel— Execution. 
 
 XII.— Executor— Indemnity. 
 XIII.— Infant— Insurance. 
 XIV.— Insurance— Interpretation. 
 
 XV.— Judge— Landlord and Tenant 
 XVI.— Larceny— Mandate. 
 XVII.— Manorial Right— Mistake. 
 XVIII.— Mortgage— Negligen.ee. 
 XIX.— Negligen.ce— Partnership. 
 
 XX— Patent. 
 
 XXI.— Payment— Purchase for Value 
 without Notice. 
 
 XXII— Quo Warranto— Release. {Nearly ready.) 
 
 XXIII— Relief— Sea. (In the press.) 
 
 *»* The Volumes are sold separately. 
 An Addendum, containing, under the appropriate title and rule, Notes of 
 Cases published since the issue of Volume I., together with a complete Index 
 of Cases and a general Index to the first 10 Volumes, thus bringing all the 
 Volumes up to date. Royal 8vo. 1897. Half vellum, net, 20s. 
 *,* SPECIAL OFFER TO NEW SUBSCRIBERS : 
 
 Vols. 1 to 20, Abandonment — Patent, with Index to Vols. 1 to 10, net, £20. 
 Plan or the Woek. 
 All the useful authorities of English Case Law, from the earliest period 
 to the present time, on points of general application, are collected and 
 arranged in alphabetical order of subjects. 
 
 The matter under each alphabetical heading is arranged in sections, in 
 an order indicated at the commencement of the heading. The more im- 
 portant and Ruling Cases are set forth at length, subject only to abridg- 
 ment where the original report is unnecessarily diffuse. The effect of 
 the less important or subordinate cases is stated briefly in the Notes. 
 
 The aim of the Work is to furnish the practitioner with English Case 
 Law in such a form that he will readily find the information he requires 
 for ordinary purposes. The Ruling Case will inform him, or refresh his 
 memory, as to the principles ; and the Notes will show in detail how the 
 principles have been applied or modified in other cases. 
 The Work will be completed in 25 Volumes. 
 
 " One of the most ambitious, and ought to be, when it is complete, one of the 
 most generally useful legal works which the present century has produced." — 
 Literature. 
 
 " A perfect storehouse of the principles established and illustrated by our 
 case law and that of the United States."— in te Titn.s. 
 
 " The general scheme appears to be excellent, and its execution reflects the 
 greatest credit on everybody concerned. It may, indeed, be said to constitute, 
 tor the presi nt, the high-water mark of the science of book-making." — Sat. Rev. 
 " A Cyclopaedia of la *-.... most ably executed, learned, accurate, clear, 
 concise ; but perhaps its chief merit is that it impresses on us what the practising 
 English lawyer is too apt. to forget -that English law really is a body of prin- 
 ciples."— The British lit, -inc. 
 
 " The Series has been maintained at a high level of excellence."— The Times. 
 Dale and Lehmann's Digest of Cases, Overruled, Not Followed, 
 Disapproved, Approved, Distinguished, Commented on and 
 specially considered in the English Courts. By Chas. Wm. 
 Mitoalfe Dale, and Rttdolf Chambers Lehmaott, assisted by Chas. 
 II. L. Nkish, and Heebeet H. Child, Esqrs., Barristers-at-Law. 
 Royal 8vo. 1887. (Published at '11. 10s.) Reduced to net, 25s. 
 
 *„* All standard Law Works are kept in Stock, inlaw calf and other bindings. 
 
119 & 120, CHANCERY LANE, LONDON, W.C. 11 
 
 D I G ESTS — continued. 
 
 Marsden. — Vide "Shipping." 
 
 Mews' Digest of Cases relating to Criminal Law down to the 
 end of 1897. — By John Mews, Esq., Barrister-at-Law. Royal 
 8to. 1898. 25s. 
 
 HEWS' DIGEST OF ENGLISH CASE LAW— Containing the Reported 
 Decisions of the Superior Courts, and a Selection from those of the 
 Irish Courts, to the end of 1897. Under the general Editorship of 
 John Mots, assisted by "W. E. Baeey, E. E. H. Biroh, A. H. 
 Bittleston, B. A. Cohen, W. I. Cook, E. W. Hansell, J. S. 
 Henderson, A. Lawrence, J. M. Lely, R. C. Mackenzie, 
 E. Manson, R. G-. Mabsden, H. J. Newbolt, A. E. Randall, 
 J. Ritchie, J. Smith, J. E. Waley, T. H. Walker, and W. A. G-. 
 "Woods, Esqrs., Barristers-at-Law. In 16 vols. Royal 8vo. £20 
 (Bownd in half calf, gilt top, £3 net extra.) 
 
 "A vast undertaking. . . . We have tested several parts of the work, with the 
 result of confirming our impression as to the accuracy of a work which is indis- 
 pensable to lawyers." — The Times. 
 
 %* Lists of Cases followed, overruled, questioned, &c, have been 
 omitted from this Digest, but the Publishers have in preparation a New 
 Edition of Dale and Lehmann's " Oveeeuled Cases" brought down 
 to the end of 1899, by W. A. G-. Woods and J. Ritchie, Esqrs., 
 Barristers-at-Law. 
 
 The Annual Digest for 1898 and 1899. By John Mews, Esq., 
 Barrister-at-Law. Royal 8vo. 1899 — 1900. each 15s. 
 
 " The practice of the law without Mews' Annual would be almost an impos- 
 sibility." — Law Times. 
 *,* This Digest is also issued quarterly, each part being cumulative. 
 Price to Subscribers, for the four parts payable in advance, net 17s. 
 
 Law Journal Quinquennial Digest, 1890-95. — An Analytical 
 Digest of Cases Published in the Law Journal Reports, and the Law 
 Reports, from Michaelmas Sittings, 1890, to Trinity Sittings, 1895. 
 By George A. Steeeten, Esq., Barrister-at-Law. 1896. 11. 10s. 
 " Extremely well done, with abundance of headings and cross references . . . 
 could not be done better." — Law Times. 
 
 Talbot and Fort's Index of Cases -Judicially noticed (1865— 
 1890) ; being a List of all Cases cited in Judgments reported from 
 Michaelmas Term, 1865 to the end of 1890, with the places where 
 they are so cited. — By George John Talbot and Hugh Fort, Esqrs., 
 Barristers-at-Law. Royal 8vo. 1891. 25s. 
 
 " This is an invaluable tool for the worker among cases."— Solicitors' Journal. 
 
 DISCOVERY,— Sichel and Chance's Discovery.— The Law relating 
 to Interrogatories, Production, Inspection of Documents, and Dis- 
 covery, as well in the Superior as in the Inferior Courts, together with 
 an Appendix of the Acts, Forms and Orders. By Walter S. Sichel. 
 and WiLLiAnCHANCE,Esqrs., Barristers-at-Law. Demy 8vo. 1883. 12s. 
 
 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. Second Edition. By Abthtjb Oldham and A. La 
 Teobe Foster, Esqrs., Barristers-at-Law. Demy 8vo. 1889. 18s. 
 
 DISTRICT COUNCILS.— Chambers' Digest of the Law relating 
 to District Councils, so far as regards the Constitution, Powers 
 and Duties of such Councils (including Municipal Corporations) in 
 the matter of Public Health and Local Government. Ninth Edition. 
 —By Geobge F. Chambers, Esq., Barrister-at-Law. Royal 8vo. 
 1895. 10s - 
 
 *J* All standard Law Works are kept vn Stock, in law calf and other bindings. 
 
 * b2 
 
12 
 
 STEVENS AND SONS, LIMITED, 
 
 DIVORCE.-Browne and Powles' Law and Practice in Divorce 
 and Matrimonial Causes. Sixth Edition. ByL. D.Powras, Esq., 
 Barrister-at-Law. Demy 8vo. 1S97. ios - 
 
 " The practitioner's standard work on divorce practice."— Law Quar. Rev. 
 Kelly's French Law.— Vide "Marriage." 
 DOGS.— Lupton's Law relating to Dogs.— By Frkdebiok Lupton, 
 Solicitor. Royal 12mo. 1888. »»■ 
 
 DOMESDAY BOOK AND BEYOND.— Three Essays in the Early 
 History of England. By Professor Maitland. 1897. 8vo. 15*. 
 
 EASEMENTS.— Campbell's RulingCases. Vol.X.— Fi<fe" Digests." 
 
 Goddard's Treatise on the Law of Easements.— By John Ley- 
 
 botjbn Goddabd, Esq., Barrister-at-Law. Fifth Edition. Demy 
 
 8vo. 1896. U 5s. 
 
 " Has taken its place as a standard treatise." — Journal of British Architects. 
 
 " 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 Times. 
 
 Innes' Digest of the Law of Easements. Sixth Edition. By 
 L. C. Innes, lately one of the Judges of Her Majesty's High Court 
 of Judicature, Madras. Royal 12mo. 1900. 7s. Sd. 
 
 " Constructed with considerable care and pains." — Law Journal. 
 
 "We have only tb e pleasing duty remaining of recommending the book to those 
 in search of a concise treatise on the law of Easements." — Law Notes. 
 
 ECCLESIASTICAL LAW— Phillimore's Ecclesiastical Law of the 
 Church of England. By the late Sir Robket PsrLunroRE, Bart., 
 D.C.L. Second Edition, by his son Sir Waltee Geobge Prank 
 Phillimoee, Bart., D.C.L., assisted by C. F. jKurvrF.rr, B.C.L., 
 LL.M., Barrister-at-Law. 2 vols. Royal 8vo. 1895. 31. 3s. 
 
 " The famous treatise of Sir Robert Phulimore will continue to hold a foremost 
 place in our legal literature."— Law Times. 
 
 " The task of re-editing Phillimore's ' Ecclesiastical Law ' was not an easy one. 
 Sir Walter Phillimore has executed it wirh brilliant success. He has brought to 
 the work all his father's subdued enthusiasm for the Church, he has omitted 
 nothing that lent value to the original treatise, he has expunged from it what 
 could be spared, and has added to it everything that the ecclesiastical lawyer 
 can possibly need to know." — Law Journal. 
 
 Whitehead's Church Law. — Being a Concise Dictionary of Statutes, 
 Canons, Regulations, and Decided Cases affecting the Clergy and 
 Laity. Second Edition. By Benjamin ■Whitehead, Esq., Barrister- 
 at-Law. Demy 8vo. 1899. 10*. 6d. 
 " A perfect mine of learning on all topics ecclesiastical." — Daily Telegraph. 
 " Mr. Whitehead has amassed a great deal of information which it would be 
 very difficult to find in any other book, and he has presented it in a clear and 
 concise form. It is a book which *rill be useful to lawyers and laymen." — Law 
 Timis. 
 
 ELECTIONS.— Day's Election Cases in 1892 and 1893.— Being a 
 Collection of the Points of Law and Practice, together with Reports 
 of the Judgments. By S. H. Day, Esq., Barrister-at-Law, Editor 
 of " Rogers on Elections." Royal 12mo. 1891. 7s. 6d. 
 
 Hedderwick's Parliamentary Election Manual 1 A Practical 
 Handbook on the Law and Conduot of Parliamentary Elections 
 in Great Britain :md Ireland, designed for the Instruction and 
 Guidance of Candidates, Agents, Canvassers, Volunteer Assistants, 
 &o. Second Edition. By T. C. H. Hkdbebwick, Esq., Barrister-at- 
 Law. Demy 12mo. 1900. 10s. 6d. 
 " Clear and well arranged." — Law Quarterly Hevi/nt.. 
 
 Hunt's Metropolitan Borough Councils Elections: A Guide to 
 
 the Mention of the. Miiyor, Aldermen, and Councillors of Metropolitan 
 
 Boroughs. By John Hunt, Esq., Barrister-at-Law. Demy 8vo. 
 
 1900. 3s. 6d. 
 
 %* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
119 & 120, CHANCERY LANE, LONDON, W.O. 13 
 
 E LECTI O N S— continued. 
 Rogers' Law and Practice of Elections. — 
 
 Vol. I. Registration, including the Practice in Registration 
 Appeals; Parliamentary, Municipal, and Local Government; with 
 Appendices of Statutes, Orders in Council, and Forms. Sixteenth 
 Edition ; with Addenda of Statutes to 1900. By Maueioe Powell, 
 
 Esq., Barrister-at-Law. Royal 12mo. 1897. 11. Is. 
 
 " The practitioner will find within these covers everything which he can he 
 expected to know, well arranged and carefully stated." — Law Times. 
 
 _ Vol. II. Pabliamentaby Elections and Petitions ; with Appen- 
 dices of Statutes, Rules and Forms. Seventeenth Edition. Revised by 
 S. H. Day, Esq., Barrister-at-Law. Royal 12mo. 1900. 11. Is. 
 
 "The leading hook on the difficult suhjects of elections and election peti- 
 tions." — Law Times. 
 
 " A very satisfactory treatise on election law." — Solicitors' Journal. 
 
 Vol. III. Municipal and othee Elections and Petitions, with 
 Appendices of Statutes, Rules, and Forms. Seventeenth Edit. By 
 Samuel H. Day, Esq., Barrister-at-Law. Royal 12mo. 1894. Ills. 
 
 This Volume treats of Elections to Municipal Councils {including the 
 City of London), County Councils, Parish Councils. Rural and Urban 
 District Councils, Boards of Guardians (within and without London), 
 Metropolitan Vestries, School Boards. 
 EMPLOYERS' LIABILITY.— Mozley-Stark.— Fi* "Arbitration." 
 Robinson's Employers' Liability under the Workmen's Com- 
 pensation Act, 1897, and the Employers' Liability Act, 1880 ; 
 with the Rules under the Workmen's Compensation Act, 1897, 
 By Aethue Robinson, Esq., Barrister-at-Law Second Edition. 
 Including Precedents of Schemes of Compensation nnder the "Work- 
 men's Compensation Act, 1897, certified by the Registrar of Friendly 
 Societies. By the Author and J. D. Stuart Sim, Esq., Barrister- 
 at-Law, Assistant Registrar of Friendly Societies. Royal 12mo. 
 1898. 7s. Qd. 
 
 " This hook commences with a short but clear summary of the law of 
 employers' liability, iu which the changes made by the new Act are pointed 
 out." — Law Journal. 
 
 ENGLISH LAW.— Pollock and Maitland's History of English Law 
 
 before the time of Edward I. — By Sir Fbedeeicx Pollock, Bart., 
 
 and Feed. W. Maitland, Esq., Barristers-at-Law. Second Edition. 
 
 2 vols. roy. 8vo. 1898. 40s. 
 
 EQUITY, and Vide CHANCERY. 
 
 Mews' Digest. — Vide "Digests," p. 11. 
 
 Seton's Forms of Judgments and Orders in the High Court of 
 Justice and in the Court of Appeal, having especial reference to 
 the Chancery Division, with Practical Notes. Sixth Edition. By 
 C. C. M. Dale, Esq., Barrister-at-Law, and W. T. Kino, Esq., a 
 Registrar of the Supreme Court. In 3 vols. (In the press.) 
 
 "A monument of learned and laborious accuracy." — Law Quarterly Review. 
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 in lunacy. — Lair Journal. 
 
 " Ar exceedingly useful handbook on lunacv practice."— Law Notes 
 A clear and able handbook. ... A feature of the work are the precedents 
 given, which have nearly all stood the test of actual practice."— Zou, Times. 
 
 MAGISTRATES' PRACTICE and MAGISTERIAL LAW — Vide 
 "Justice of the Peace." 
 
 MARINE INSURANCE.— Vide "Insurance." 
 
 MARITIME DECISIONS.-Douglas' Maritime Law Decisions- 
 Compiled by Roet. R. Douglas. Demy8vo. 18S8. 7s. 6d. 
 
 MARRIAGE.-Kelly's French Law of Marriage, Marriaee Con- 
 tracts, and Divorce, and the Conflict of Laws arising there- 
 from, Second Edition. By Oliveb E. Boddjgton, Esq., Barrister-at- 
 Law, Licencie en Droit de la Faculty de Paris. Roy. 8vo. 1895. 21s 
 
 MARRIED WOMEN'S PROPERTY.-Lush's Married Women's 
 Rights and Liabilities in relation to Contracts, Torts, and 
 Trusts. By Montague Lush Esq. Barrister-at-Law, Author of 
 "The Law of Husband and Wife." Royal 12mo. 1887. 6> 
 
 MASTER AND SERVANT.-Macdonell's Law of Master and 
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 MEDICAL PARTNERSHIPS.— Barnard and Stacker's Medical 
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 Barnard, Esq., Barrister-at-Law, and G. Bertram Stocker, Esq., 
 Managing Director of the Scholastic, Clerical and Medical Associa- 
 tion (Limited). Demy 8vo. 1895. 10s. 6d. 
 
 MERCANTILE LAW.— Smith's Compendium of Mercantile Law. 
 —Tenth Edition. By John Macdonell, Esq., C.B., a Master of 
 the Supreme Court of Judicature, assisted by Geo. Humphreys, Esq., 
 Barrister-at-Law. 2 vols. Royal 8vo. 1890. 11. 2s; 
 
 " Of the greatest, value to the mercantile lawyer." — Law _Times. 
 
 " One of the most scientific treatises extant on mercantile law." — Sol. Jl. 
 
 Tudor's Selection of Leading Cases on Mercantile and Maritime 
 Law. — With Notes. By 0. D. Tudor, Esq., Barrister-at-Law. 
 Third Edition. Boyal 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. 6s. 
 
 MERCHANDISE MARKS ACT.— Payn's Merchandise Marks 
 Act,1887 — ByH. PAYN,Barrister-at-Law. Royall2mo. 1888. 3s. 6d. 
 " A safe guide to all who are interested in the Act." — Law Times. 
 
 METROPOLIS BUILDING ACTS.-Craies' London Building Act, 
 1894j with Introduction, Notes, and Index,— By W. F. Crates, 
 Barrister-at-Law. Boyal 8vo. 1894. Net 3s. 
 
 Craies' London Building Act,1894: with Introduction, Notes, and 
 Index, and a Tahle showing how the Former Enactments relating to 
 Buildings have been dealt with. — By W. F. Craies, Barrister-at- 
 Law. Boyal 8vo. 1894. 5s. 
 
 MORALS AND LEGISLATION,— Bentham's Introduction to the 
 Principles of Morals and Legislation, — By Jeremy Bentham, 
 M.A., Bencher of Lincoln's Inn. Crown 8vo. 1879. 6s. 6d. 
 
 MORTGAGE, — Beddoes' Concise Treatise on the Law of Mort- 
 gage, — ByW.F. Beddoes, Esq., Barrister-at-Law. 8vo. 1893. 10s. 
 " Compiled carefully and with discretion." — Law Times. 
 
 Robbins' Treatise on the Law of Mortgages, Pledges and 
 Hypothecations. — By L. G. Gordon Bobbins, Assisted by F. T. 
 Maw, Esqrs., Barristers-at-Law. Founded on " Coote's Law of 
 Mortgage." 2 vols. Koyal 8vo. 1897. 31. 
 
 "It is not a patched-up edition of an old work ; it is a new hook, containing 
 of the old what is good and is still law, with the advantage of the work of a 
 modern editor." — Law Journal. 
 
 "The practising lawyer will find in detail everything that he can possibly 
 want." — Solicitors* Journal. 
 
 " A complete treatise on the law of mortgages." — Law Quarterly Review. 
 
 MOTOR CARS. — Bonner's Law of Motor Cars, Hackney and other 
 
 Carriages, — An Epitome of the Law, Statutes, and Regulations. 
 
 By G. A. Bonner, Esq., Barrister-at-Law. Demy 8vo. 1897. 7s. 6d. 
 
 "The book is full of useful information, and will undoubtedly prove of service 
 
 to those who require advice on this subject." — Law Times. 
 
 MUNICIPAL CORPORATIONS— Bazalgette and Humphreys 
 
 Vide " Local and Municipal Government." 
 Lely's Law of Municipal Corporations. — By J. M. Lely, Esq., 
 Barrister-at-Law. Demy 8vo. 1882. 15s. 
 
 NAVY.— Thring's Criminal Law ofthe Navy. 3rdEdit. By J. E. R. 
 Stephens, "Esq., Barrister-at-Law, and C. E. Gifford, Esq., 
 Assistant-Paymaster, Koyal Navy. 12mo. {In the press.) 
 
 * # * All standard Law Works are kept in Stock, m law calf and other bindings. 
 
22 STEVENS AND SONS , LIMJ.TJfilJ, 
 
 NEGLIGENCE,— Smith's Treatise on the Law of Negligence. 
 Second Edition. By Horace Smith, Esq., Barrister-at-Law, Editor 
 of " Addison on Contracts, and Torts," &c. 8vo. 1884. 12*. 6d. 
 
 NISI PRIUS.— Roscoe's Digest of the Law of Evidence on the 
 
 Trial of Actions at Nisi Pri us,— Seventeenth Edition. By Maurice 
 
 Powell, Esq., Barrister-at-Law. 2 vols. Demy8vo. 1900. 11.1s. 
 
 " Continues to be a vast and closely packed storehouse of information on 
 
 practice at Nisi Pi-ius." — Law Journal. 
 
 NOTARY.— Brooke's Treatise on the Office and Practice of a 
 Notary of England, — With a full collection of Precedents. SixthEd. 
 By James Ceanstoun, Esq., Barrister-at-Law. {In the press.) 
 
 OATHS. — Stringer's Oaths and Affirmations in Great Britain and 
 Ireland; being a Collection of Statutes, Cases, and Forms, with 
 Notes and Practical Directions for the use of Commissioners for Oaths, 
 and of all Courts of Civil Procedure and Offices attached thereto. By 
 Francis A. Stringer, of the Central Office, Royal Courts of Justice, 
 one of the Editors of the "Annual Practice." Second Edition. 
 Crown 8vo. 1893. is. 
 
 " Indispensable to all commissioners." — Solicitor? Journal. 
 
 OTTOMAN CIVIL LAW.— Grigs by 's Medjelle, or Ottoman Civil 
 Law. — Translated into English. By W. E. Griosby, LL.D., Esq., 
 Barrister-at-Law. Demy 8vo. 1895. 21s. 
 
 PARISH LAW.— Humphreys' Parish Councils.— The Law relating 
 to Parish Councils, being the Local Government Act, 1894 ; with 
 an Appendix of Statutes, together with an Introduction, Notes, and 
 a Copious Index. Second Edition. By Geobqe Humphreys, Esq., 
 Barrister-at-Law, Author of ' ' The Lawrelating to County Councils," 
 &o. Royal 8vo. 1895. 10s. 
 
 Steer's Parish Law. Being a Digest of the Law relating to the 
 Civil and Ecclesiastical Government of Parishes and the Relief of the 
 Poor. Sixth Edition. By W. H. Macnamaba, Esq., Assistant 
 Master of the Supreme Court, Registrar of the Court constituted 
 under the Benefices Act, 1898. Demy Svo. 1899. 20s. 
 
 ' ' Will be of great service both to lawyers and to parochial officers." — Solicitors 1 
 Journal. 
 
 " A most useful book of reference on all matters connected with the parish 
 both civil and ecclesiastical." — Law Journal. 
 
 " Kept in touch with every recent change." — Law Times. 
 
 PARTNERSHIP.— Pollock's Digest of the Law of Partnership. 
 
 Seventh Edition. With an Appendix of Forms. By Sir Frederick 
 Pollock, Bart., Barrister-at-Law, Author of "Principles of Con- 
 tract," " The Law of Torts," &c. Demy 8vo. 1900. 10s. 
 
 PATENTS— Campbell's Ruling Cases, Vol. XX.— Tide "Digests," 
 p. 10. 
 Edmunds on Patents. — The Law and Practioe of Letters Patent for 
 Inventions. By Lewis Edmunds, Q.C. Second Edition. ByT. II. 
 Stevens, Esq., Barrister-at-Law. Roy. 8vo. 1897. 11. lis. 
 
 " We have nothing but commendation for the book." — Solicitors' Journal. 
 " It would be difficult to make it more complete." — Law Times. 
 
 Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 
 1888, Consolidated with an Index. Second Edition. By Lewis 
 Edmunds, Q.C., D.Sc, LL.B. Imp.Svo. 1S95. SS'ct 2s. 6d. 
 
 Gordon's Monopolies by Patents and the Statutable Remedies 
 available to the Public. By J. W. Gordon, Esq., Barrister-at- 
 Law. Demy Svo. 1897. 18s. 
 "A treatise which we think must take a unique place in our legal literature." 
 — Law Times. 
 
 Gordon's Compulsory Licences under the Patents Acts. By 
 
 J. W. Gordon, Esq., Barrister-at-Law, Author of " Monopolies by 
 
 Pliant." Demy Svo. 1899. ig 5 . 
 
 *„* All standard Law Works are kept in Slock, in law calf and other bindings. 
 
119 & 120, CHANCERY LANE, LONDON, "W.C. 23 
 
 PAT E N TS— continued. 
 
 Johnson's Patentees' Manual. — A Treatise on the Law and 
 Practice of Patents for Inventions. Sixth Edition. By James John- 
 son, Esq., Barrister-at-Law ; and J. Henby Johnson, Solicitor and 
 Patent Agent. Demy 8to. 1890. 10s. 6d. 
 
 Johnson's Epitome of Patent Laws and Practice. Third Edition. 
 Crown 8vo. 1900. Net, 2s. 6d. 
 
 Morris's Patents Conveyancing. — Being a Collection of Precedents 
 in Conveyancing in relation to Letters Patent for Inventions. 
 With Dissertations and Copious Notes on the Law and Practice. By 
 Robert Moeeis, Esq., Barrister-at-Law. Royal 8vo. 1887. 11. 6s. 
 
 Thompson's Handbook of Patent Law of all Countries. — By 
 Wm. P. Thompson. Tenth Edition, with Addendum. 12mo. 1899. 
 
 Net, 2s. 6d. 
 
 Thompson's Handbookof British Patent Law. Eleventh Edition. 
 12mo. 1899. Net, 6d. 
 
 PAWNBROKING.— Attenborough's Law of Pawnbroking, with 
 the Pawnbrokers Act, 1872, and the Factors Act, 1889, and 
 Notes thereon. By Chaeles L. Attenbobough, Esq., Barrister- 
 at-Law. Post 8vo. 1897. Net, 3s. 
 
 PERSONAL PROPERTY.— Smith,— Vide " Real Property." 
 
 PLEADING. — Bullen and Leake's Precedents of Pleadings, with 
 Notes and Rules relating to Pleading. Eifth Edition. Revised and 
 Adapted to the Present Practice in the Queen's Bench Division of 
 the High Court of Justice. By Thomas J. Bullen, Esq., Barrister- 
 at-Law, Ctexl Dodd, Esq., Q.C., and C. W. Clifford, Esq., Bar- 
 rister-at-Law. Demy 8vo. 1897. 38s. 
 " The standard work on modern pleading.' 1 — Law Journal. 
 
 Odgers' Principles of Pleading, Practice and Procedure in Civil 
 Actions in the High Court of Justice. — Fourth Edition. By W. 
 Biake Odgees, LL.D., Q.C., Recorder of Plymouth, Author of "A 
 Digest of the Law of Libel and Slander." Demy 8vo. 1900. 12s. 6d. 
 
 " The student or practitioner who desires instruction and practical guidance 
 in our modern system of pleading cannot do better than possess himself of 
 Mr. Odgers' book." — Law Journal. f 
 
 " Includes a careful outline of the procedure in an ordinary action at law. 
 This sketch will be of the utmost value to students, and ought to win the ap- 
 proval also of examining bodies, as it is remarkably free from any adaptability to 
 the purposes of the mere crammer." — Literature. 
 
 " Of immense assistance to junior counsel." — Law Notes. 
 
 " Terse, clear and pointed." — Law Quarterly Review. 
 
 POISONS. — Reports of Trials for Murder by Poisoning. — With 
 Chemical Introductions and Notes. By G. Latham Browne, Esq., 
 Barrister-at-Law, andC. G. Stewaet, Senior Assistant in the Labo- 
 ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12s. 6d. 
 
 POWERS. — Farwell on Powers, — A Concise Treatise on Powers. 
 Second Edition. By George Farwell, Esq., Q.C., assisted by 
 W. R. Sheldon, Esq., Barrister-at- Law. Royal 8vo. 1893. 11. 5s. 
 
 PRINCIPAL AND AGENT.— Wright's Law of Principal and Agent. 
 
 By E. B. Weight, Esq., Barrister-at-Law. Demy8vo. 1894. 18s. 
 
 " Clearly arranged and clearly written."— Law Times. 
 
 " May with confidence be recommended to all legal practitioners as an accu- 
 rate and handy text book on the subjects comprised in it."— Solicitors' Journal. 
 
 PRIVY COUNCIL LAW.— Wheeler's Privy Council Law: A Synop- 
 sis of all the Appeals decided by the Judicial Committee (including 
 Indian Appeals) from 1876 to 1891. Together with a precis of the 
 Cases from the Supreme Court of Canada. By Geoege Wheelee, 
 Esq., Barrister-at-Law, and of the Judicial Department of the Privy 
 Council. Royal 8vo. 1893. 31s. U. 
 
 *,* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
24 STEVENS AND SONS, LIMITED, 
 
 PROBATE.— Powles and Oakley's Law and Practice relating to 
 Probate and Administration. By L. D. Powles, Barrister-at- 
 Law, and T. W. H. Oaklet, of the Probate Registry. (Being a. 
 Third Edition of " Browne on Probate.") Demy8vo. 1892. 11. 10«. 
 
 PROPERTY.— See also " Real Property." 
 Raleigh's Outline ofthe Law of Property.— Demy 8vo. 1890. 7s.6d. 
 
 Strahan's General View of the Law of Property. — Second Edit. 
 By J. A. Steahan, assisted by J. Sinclaib Baxteb, Esqra., Barris- 
 ters-at-Law. Demy 8vo. 1897. 12*. 6d. 
 
 " The student will not easily find a better general view of the law of property 
 than that which is contained in thia book." — Solicitor*' Journal. 
 
 " "We know of no better book for the class-room." — Law Times. 
 
 PUBLIC HEALTH.— Bazalgette and Humphreys.— Vide "Local 
 and Municipal Government." 
 
 Hunt, — Vide " London Local Government." 
 
 PUBLIC MEETINGS,— Chambers' Handbook for Public Meet- 
 ings, including Hints as to the Summoning and Management of 
 them. Second Edition. By Geoboe F. Chambers, Esq., Barrister- 
 at-Law. Demy 8vo. 1886. Net, 2s. 6d. 
 
 QUARTER SESSIONS.— See " Criminal Law." 
 
 Pritchard's Quarter Sessions. Second Edition. By J. B. 
 Matthews, Esq., Barrister-at-Law. (In preparation.) 
 
 RAILWAY RATES.— Darlington's Railway Rates and the Carriage 
 of Merchandise by Railway ; including the Provisional Orders of 
 the Board of Trade as sanctioned by Parliament, containing the 
 Classification of Traffic and Schedule of Maximum Rates and Charges 
 applicable to the Railways of Great Britain and Ireland. By H. R. 
 Darlinoton, Esq., Barrister-at-Law. Demy 8vo. 1893. 11. 5s. 
 
 RAILWAYS.— Browne and Theobald's Law of Railway Com- 
 panies. — Being a Collection of the Acts and Orders relating to 
 Railway Companies in Great Britain and Ireland, with Notes of all 
 the Cases decided thereon. Third Edition. By J. H. Balfoub 
 Browne, Esq., one of Her Majesty's Counsel, and Fbank Balfoub 
 Browne, Esq., Barrister-at-Law. Royal 8vo. 1899. 11. 2s. 
 
 '* Contains in a very concise form the whole law of railways." — The Times. 
 
 " It is difficult to find in this work any subject in connection with railways 
 which is not dealt with." — Law Times. 
 
 " Practitioners who require a comprehensive treatise on railway law will find it 
 indispensable." — Law Journal. 
 
 RATES AND RATING.— Castle's Law and Practice of Rating.— 
 Third Edition. By Edwabd James Castle, Esq., one of Her 
 Majesty's Counsel. Demy 8vo. 1895. 25s. 
 
 "A sure and safe guide." — Law Magazine. 
 
 " Mr. Castle's book has hitherto held a very high place, and the success that 
 has attended it seems assured to the new edition." — Law Journal. 
 
 " A compendious treatise, which has earned the goodwill of the Profession on 
 account of its conciseness, its lucidity, and its accuracy."— Law Times. 
 
 Chambers' Law relating to Local Rates; with especial reference 
 to the Powers and Duties of Rate-levying Local Authorities, and 
 their Officers ; comprising the Statutes in full and a Digest of 718 
 Cases. Seoond Edition. By G. F. Chambebs, Esq., Barrister-at- 
 Law. Royal 8vo. 1889. 10s. 6d. 
 
 REAL PROPERTY,— Digby's History ofthe Law of Real Pro- 
 perty, Fifth Edition. Demy 8vo. 1897. 12s. 6d. 
 
 Leake's Elementary Digest of the Law of Property in Land, — 
 Containing : Introduction. Part I. The Souroes of the Law. — 
 Part II. Estates in Land. — Part III. The Law of Uses and Profits 
 of Land. By Stephen Martin Leake, Barrister-at-Law. Demy 
 8vo. 1874— 18S8. Net, 30s. 
 
 *„* All standard Law Works are kept in Stock, inlaw calf and other bindings. 
 
119 & 120, CHANCERY LANE, LONDON, W.O. 25 
 
 REAL PROPERTY— continued. 
 Lightwood's Treatise on Possession of Land ! with a ohapter on 
 the Heal Property Limitation Acts, 1833 and 1874. — By John M. 
 Liqhtwood, Esq., Barrister-at-La-w. Demy 8vo. 1894. 15s. 
 
 Shearwood's Real Property. — A Concise Abridgment of the Law of 
 Real Property and an Introduction to Conveyancing. Designed to 
 facilitate the subject for Students preparing for examination. By 
 Joseph A. Sheabwood, Esq., Barrister-at-Law. Third Edition. 
 Demy 8vo. 1885. 8s. 6d. 
 
 Shelford's Real Property Statutes, — Comprising the principal 
 Statutes relating to Real Property passed in the reigns of Kin g 
 William IV. and Queen Victoria, with Notes of Decided Cases. 
 Ninth Edition. By Thomas H. Caeson, assisted by Habold B. 
 Bompas, Esqrs., Barristers-at-Law. Royal 8vo. 1893. SO*. 
 
 " Absolutely indispensable to conveyancing and equity lawyers." 
 
 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. By the Author and J. Teus- 
 tbam:, LL.M., Barrister-at-Law. 2 vols. Demy 8vo. 1884. 11. Is. 
 
 " A book -which he (the student) may read over and over again -with profit and 
 pleasure.*' — Law Times. 
 
 " Will be found of very great service to the practitioner." — Solicitors* Journal. 
 
 " A really useful and valuable work on our system of Conveyancing."— Law 
 Students* Journal. 
 
 Strahan. — Vide "Property." 
 
 REGISTRATION.— Rogers.— Vide "Elections." 
 Fox and Smith's Registration Cases. (1886—1895). Royal 8vo. 
 
 Calf, net, 21. 10s. 
 Smith's (C. Lacey) Registration Cases. Part I. (1895-96). 
 Net, 6s. 6d. Part II. (1896), 5s. Part III. (1897), 4s. Part IV. 
 (1898-9), 6s. Part V. (1899-1900), 4s. 
 Lawson's Notes of Decisions under the Representation of the 
 People Acts and the Registration Acts, 1885 — 1893, inclu- 
 sive, — By Wh. Lawson, Barrister-at-Law. Demy 8vo. 1894. 24*. 
 Ditto, ditto, for 1894, 1895, 1896 and 1897. Each net 4s. 6d. 
 
 Ditto, ditto, for 1898. Net, 7s. 6d. 
 
 Ditto, ditto, for 1899. Net, is. 6d. 
 
 REQUISITIONS ON TITLE,— D\ck\ns.— Vide "Conveyancing." 
 
 RIVERS POLLUTION.— Haworth's Rivers Pollution,— The Statute 
 Law relating to Rivers Pollution, containing the Rivers Pollution 
 Prevention Acts, 1876 and 1893, together with the Special Acts in 
 force in the West Riding of Yorkshire and the County of Lancaster. 
 By Chaeles Joseph Hawoeth, Solicitor, B.A. (Cantab.), LL.B. 
 (London). Royal 12mo. 1897. 6s. 
 
 ROMAN LAW. — Abdy and Walker's Institutes of Justinian, Trans- 
 lated, with Notes, by J. T. Abdy, LL.D., and the Lite Bbyan Waijxeb, 
 M.A., LL.D. Crown 8vo. 1876. 16s. 
 
 Abdy and Walker's Commentaries of Gaius and Rules of Ulpian. 
 With a Translation and Notes, by J. T. Abdy, LL.D., late Regius 
 Professor of Laws in the University of Cambridge, and the late 
 Bbyan Waikeb, M.A., LL.D. New Edition by Bbyan Walkbb. 
 Crown 8vo. 1885. 16s. 
 
 Buckler's Origin and History of Contract in Roman Law down 
 
 to the end of the Republican Period. By W. H. Buckles, 
 
 B. A., LL.B. Post8vo. Second Edition. (In the press.) 
 
 *,* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
26 STEVENS AND SONS, LIMITED, 
 
 ROMAN LAW— continued. 
 Goodwin's XII. Tables.— By Fbedebiox Goodwin, LL.D. London. 
 Royal 12mo. 1886. 3s. 6d. 
 
 Greene's Outlines of Roman Law. — Consisting chiefly of an 
 Analysis and Summary of the Institutes. For the use of Students. 
 By T. Whttcombe Gbeene, Barrister-at-law. Fourth Edition. 
 Foolscap 8vo. 1884. 7s. 6d. 
 
 Grueber's LexAquilia. — The Roman Law of Damage to Property : 
 being a Commentary on the Title of the Digest " Ad Legem Aqui- 
 liam" (ix. 2). With an Introduction to the Study of the Corpus 
 Iuris CiviJis. By Ebwtn Gbuebeb, Dr. Jnr.,M.A. 8vo. 1886. 10s. 6d. 
 
 Holland's Institutes of Justinian. — Second Edition. Extra reap. 
 8vo. 1881. 6s. 
 
 Holland and Shadwell's Select Titles from the Digest of Jus- 
 tinian.— Demy 8vo. 1881. 14s. 
 
 Holland's Gentilis Alberici, I. CD., I.C.P.R., de lure Belli Libri 
 Tres, — EdiditT.E. Holland, LCD. Small 4to., half -morocco. 21s. 
 
 Monro's Digest IX. 2. LexAquilia. Translated, with Notes, by 
 C. H. Moneo, M.A. Crown 8vo. 1898. 6s. 
 
 Monro's Digest XIX, 2, Locati Conducti. Translated, with Notes, 
 by C. H. Moneo, M.A^ Crown 8vo. 1891. 6s. 
 
 Monro's Digest XLVII, 2, De Furtis. Translated, with Notes, by 
 C. H. Monko, M.A. Crown 8vo. 1893. 5s. 
 
 Moyle's Imperatoris Justiniani Institutiones. — Third Edition. 
 2 vols. Demy 8vo. 1896. II. 2s. 
 
 Poste's Elements of Roman Law, — ByGaius. With a Translation 
 and Commentary. Third Edition. By Edwabd Posts, Esq., 
 Barrister-at-Law. Demy 8vo. 1890. 18s. 
 
 Roby's Introduction to the Study of Justinian's Digest, con- 
 taining an account of its composition and of the Jurists used or 
 referred to therein. By H. J. Robt, M.A. Demy 8vo. 1886. 9s. 
 
 Roby's Justinian's Digest. — Lib. VII., Tit. I. De Usufructu, with 
 
 a Legal and Philological Commentary. By H. J. Robt, M.A. 
 
 Demy 8vo. 1884. 9s. 
 
 Or the Two Parts complete in One Volume. Demy 8vo. 18s. 
 
 Walker's Selected Titles from Justinian's Digest. — Annotated by 
 the late Bryan Walker, M.A., LL.D. 
 
 Part I. Mandati vel Contra. Digest XYn. I. Crown 8vo. 1879. 6s. 
 
 Part III. De Condiotionibus. Digest xn. 1 and 4 — 7, and 
 Digest xm. 1—3. Crown 8to. 1881. 6s. 
 
 Walker's Fragments of the Perpetual Edict of Salvius Julianus. 
 Colleoted and annotated by Bryan Walkeb, M.A., LL.D. Crown 
 8vo. 1877. 6s. 
 
 Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- 
 
 beyrao and others ; accompanied by an abridged Translation of the 
 
 Text, by W. Whewell, D.D. 3 vols. Demy 8vo. 1863. 12s. 
 
 The Translation separate. 6s. 
 
 *„* All standard Law Works are kept in Stock, in law calf and other bindings. 
 
119 & 120, CHANCERY LANE, LONDON, W.O. 27 
 
 RULING CASES.— Campbell.— Vide "Digests," p. 10. 
 
 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 Blacxbuen. 2nd Edit. 
 By J. C. Graham, Esq., Barrister-at-Law. Royal 8vo. 1885. II. Is. 
 "We have no hesitation in saying that the work has been edited with re- 
 markable ability and success."—- Law Quarterly Review. 
 
 SALVAGE, — Kennedy's Treatise on the Law of Civil Salvage, — By 
 the Hon. Sir William R. Kennedy, a Justioe of the High Court. 
 Royal 8vo. 1891. 12s. 
 
 *' The best work on the law of salvage. It is a complete exposition of the 
 subject, and as such is accurate and exhaustive." — Law Times. 
 
 SHERIFF LAW.— Mather's Compendium of Sheriff Law, espe- 
 cially in relation to Writs of Execution. — By Philip E. Mathee, 
 Solicitor and Notary, formerly Under Sheriff of Newcastle-on-Tyne. 
 Royal 8vo. 1894. 25s. 
 
 "We think that this book will be of very great assistance to any persons who 
 may fill the positions of high sheriff and under-sheriff from this time forth. The 
 whole of the legal profession will derive great advantage from having this 
 volume to consult." — Law Times. 
 
 SH I PPI NG.— Carver.— Vide " Carriers." 
 
 Marsden's Digest of Cases relating to Shipping, Admiralty, 
 and Insurance Law, down to the end of 1897. — By Reginald 
 G. Marsden, Esq., Barrister-at-Law, Author of "The Law of 
 Collisions at Sea." Royal 8vo. 1899. 30s. 
 
 Pulling's Merchant Shipping Act, 1894. — With Introduction, 
 Notes, and Index. By Alexandee Pulling, Esq., Barrister-at- 
 Law. Royal 8vo. 1894. ' Net 6s. 
 
 Pulling's Shipping Code; being the Merchant Shipping Act, 1894 
 (57 & 58 Vict. c. 60) ; With Introduction, Notes, Tables, Rules, 
 Orders, Eorms, and a Pull Index. — By Alexander Pulling, Esq., 
 Barrister-at-Law. Royal 8vo. 1894. Net 7s. 6d. 
 
 Temperley's Merchant Shipping Act, 1894 (57 & 58 Vict, 
 c. 60). With an Introduction ; Notes, including all Cases decided 
 under the former enactments consolidated in this Act ; a Comparative 
 Table of Sections of the Former and Present Acts ; an Appendix of 
 Rules, Regulations, Eorms, etc., and a Copious Index. — By Robebt 
 Tempeelet, Esq., Barrister-at-Law. Royal 8vo. 1895. 25s. 
 
 " A full, complete, and most satisfactory work." — Law Quarterly Review. 
 "A monument of well-directed industry and knowledge directed to the 
 elucidation of the most comprehensive and complicated Act." — Law Journal. 
 
 S LAN D E R.— Odgers.— Vide " Libel and Slander." 
 
 SOLICITORS. — Cordery's Law relating to Solicitors of the 
 Supreme Court of Judicature. With an Appendix of Statutes 
 and Rules, the Colonial Attornies Relief Acts, and Notes on Appoint- 
 ments open to Solicitors, and the Right to Admission to the Colonies, 
 to which is added an Appendix of Precedents. Third Edition. By 
 A. Cordery, Esq., Barrister-at-Law. Demy 8vo. 1899. 21s. 
 
 " The leading authority on the law relating to solicitors." — Law Journal. 
 
 "A complete compendium of the law." — Law Times. 
 
 " Thoroughly up to date in every respect." — Law Quarterly Beview. 
 
 Turner. — Vide "Conveyancing" and "Vendors and Purchasers." 
 
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 TRADE MARKS,— Sebastian on the Law of Trade Marks and 
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