TREATISE OF THE LAW F PARTNERSHIP. BY WILLIAM WATSON, OF LINCOLN'S-INN, E-S Q. Societas jus quoddam fraternitatis in fe habet. DIG. PRO SOCIO) LEG. 63. LONDON: PRINTED BY A. STRAHAN AND \V. WOODFALL, LAW PRINTERS TO THE KING'S MOST EXCELLENT MAJESTY} FOR J. BUTTERWORTH, FLEET-STREET. 1794. T W 33^p 17;?. 37. Afv#& 3 18. (f, Stik-d the Commercial Reign, Jcnesh Law of Bail- mci.ti p 10; 2 commerce,, INTRODUCTION. xi commerce, whilft continually enriching this country, hath contributed to make us free, and that freedom, which is the boaft and glory of Englifljmen, hath in its turn greatly extended our commerce. It would be going far beyond the limits here propofed, to enter upon the difcuffion of any branch of the complicated and important queftion, how far Chartered Companies are tifeful or injurious to commerce. It is fuffi- cient, that private voluntary partnerships in trade, are generally thought beneficial to com- merce, by the merchants of England. Great benefits arife to the traffic of this country from its commodious fituation for trade and com- merce with all mankind, and from other local fuperiorities ; but the beft advantages could not always be made ofthefe wkhoutFeJlozv/hip, and Partnerfhif Concerns, which increafe the merchant's credit, give energy to every un- dertaking, and afford additional counfel; whereby the Britijh merchants have rendered their profefTion, not only in a high degree bene- ficial to the State, but moll honorable and profitable to themfelves. Under fuch circumftances it appears fome- what fingular that this branch of mercantile and legal fcience fhould never have been treated xii INTRODUCTION. treated by any Englijh writer in a fyftematic form, and that even the rules of authority and pra&ice fhould remain fcattered in the woiks of general writers, and reporters, without any at.empt having been made to collect them prior to this Eflay, at the con- clufion of the eighteenth century. It is indeed the obfervation of a popular writer(g), that " Nothing upon the fubject of " Partnerfhip requires explanation, but in " what manner the profits are to be divided, " where one partner contributes money, and " the; other labor; which is a common " cafe." Neverthelefs in many recent inftances queftions of no inconfiderable importance have been decided both in the Courts of Law and Equity relating to various other topics arifing out of partnerfnips in trade, befides thofe which are confined to the adjufting of contefted rights and claims between partners themfelves. And mould the Author's hum- ble endeavour to arrange them in their natu- ral order prove ufeful in the fmallefl degree, his labors will be abundantly rewarded. (g) Pale/s Moral and Political Philofopby, i vol. p. i;6. NAMES OF THE PRINCIPAL CASES. ABBOTT v. Smith P*i e 347 Adcock v. Gale 86 Apfey (ex parte) 362 Afcue v. Hollingfworth 353 Attorney General v. Burgefs 259 Attorney General v. Palmer 260 Attorney General v. Carbeld, ibid. Attorney General v. Sweeting, ibid. B. Backurft v. Clinkard Banks (ex parte) Bate (ex parte) Batfon (ex parte) Baxter v. Burfield Beak v. Beak Bellafis v. Hefter Bent and another v. Puller and another 311 163 361 211 210 4 2 3 317 443 Biggs and others v. Lawrentfe Page 224 Blake (ex parte) 206 Bland v. Haflerig 375 Bloxam v. Pell 44 Bodvil v. the Bifhop of Meath 304 Bofon v. Sandford Bridges v. Mitchel Brown v. Litton Brown v. Hedges Brown v. Heathcote Bucknal v. Royfton Bull v. Palmer Buxton v. Liflon Byers v. Dobey C. 34i 3°3 440 205 180 179 321 26 33* Carvick v. Vickery 367 Chappie v. Vaughan 352 LordCheflerfieldv.Janfien 291 Clowes (ex parte) 363 Copeman v. Gallant 177 Coope v. Eyre 46 Lord Craven v.Widdowes 361 Crifpe (ex parte) 413 Crifpe XIV NAMES OF THE PRINCIPAL CASES. Crifpe v. Perritt Cud v. Rutter D. Page 412 26 Dartmouth's cafe 296 Darwent v. Wilfon 356 Doe v. Butler 258 Downing v. Chapman 245 Drake (ex parte) 205 Drue v. Thorne 321 Eddie v. Davidfon 165 Eddie v. the Eaft-India Com- ply 53 Edwards V. Child 125 Edwin v. the Eaft-India Com- pany 126 Faikney v. Rcvnous 248 Foirer v. Allanfcn 3 J 8 Foth's cafe 78 Fox v. Hanbury *93 G. Garret v. Taylor, 337 Gocffrey v. Erowning 432 Gofs v. Dufrefnoy 167 Grace v. Smith 18 Graham v. Robinfon 336 Gregory v. Olden Grill (ex parte) Gyles v. Wilcox H. Hague v. Soott Hague v. Rollefton Haman and others, affignees of Fordyce v. Fifhar Hankey v. Garratt Heath v. Percival Hemmings v. Robinfon Herrenden v. Palmer Heydon v. Heydon Heylin v. Haftings Hoare and another v. Dawes 38 Hobbs v. Young 76 Holman v. Johnfon 226 Homer v. Moore 345 Hotham v. the Eaft-India 113 «az 433 210 72 Page 249 209 328 2oo 423 423 182 064 374 321 162 374 Company Hubert v. Nelfon Huddlefton (ex parte) Hunter (ex parte) Hyatt v. Haie Jackey v. Butler JefFery v. Small Jettons v. Brooke Jones v. Barkley 166 443 278 125 Kemp NAMES OF THE PRINCIPAL CASES. XV K. Kemp v. Andrews Page 440 Kilgour v. Finlyfon 406 Kirkman v. Newftead 337 Lambert v. Acretree 94 Lambert's cafe 7 1 Lane v. Williams 69 L'Apoftre v. Le Plaiftrier 1 77 Leglife v. Champante 335 Lloyd v. Green 350 Lyddall v. Watfon 25 . — v. Layfield 66 M. Marlin {ex parte) 312 Martin v. Abdee 297 Martin v. Crompe 51 Metcalf v. the Royal Exchange AlTurance Company 29 Meymot [ex parte) 276 Moore v. Shee 101 Moravia v. Levi 318 Moriflet v. King 298 Morfe v. Wilfon 287 Mumit v. Whitney 70 P. Parifh v. Crawford 1 1 1 Parker (ex parte) 314 Paul v. Birch Page qi Pearce v. Chamberlain 431 Petrie v. Hannay 2^3 Pinkney v. Hall 52 Pitt v. Garnie 100 Qneen v. Maddox R. 78 Raynard v. Chafe 74 Rex and Allen v. Tooley 77 Rex v. Driffield 76 Rex v. Goller 78 Rex v. Manning 256 Rex v. Tarnith 78 Rice v. Shute 339 Richardfon v. Goodwin 166 Roberts v. Trenayne 296 Robinfon v. Bland 228 Round and others v. Hope Byde 4T9 Ryal v. Rowles 179 S. Saville v. Robertfon 376 Sayer v. Chaytor 353 Segar v. Randal 339 Sherman v. Sherman 72 Skip v. Harwood 2 Small xvi NAMES OF THE PRINCIPAL CASES. Small v. Oudley Smith v. Barrow Smith v. De Sylva Sparrow v. Carruthcrs Stead v. Mohun Sutton v. Mitchel T. Tooke v. Hollinsifworth 213 155 123 35 2 107 Turner (ex parte) 3 11 428 U. Upton (ex parte) Vernon v. Hankey W. Page 416 323 334 Ward v. Everard Wellingtonv. Mackintosh 403 Weft v. Skipp 169 Whelpdale's cafe 352 Whitecomb v. Whiting 372 Willet v. Chambers g Willis v. Jernegan 317 A TREA- Fn^fi" TJTT?F^WWn i ^ l WPW L ^* J Vi-™ A " j:: » :r ^ t TREATISE O F 3Qbc Hato of ^artner0)ip0. CHAPTER I. pactncrfijip— what. PARTNERSHIP is a voluntary con- tract, between two or more perfons for joining together their money, goods, or labor, upon an agreement that the gain or lofs fhall be divided proportionably. And in fuch partnerfhip-property each member hath one and the fame fpecies of inte- reftj their title being undivided, whether each individual partner contributes exactly in the fame proportion or not; but their fe- B veral ■2 paitnetfijip— what. veral degrees of intereft mult be regulated according to the agreed proportions, and the other conditions of partnership. The partners are themfelves joint-tenants in all the flock and partnerfhip effects ; and they are fo not only of the particular flock in being at the time of entering into the partnerfhip, but they con- tinue joint-tenants throughout, whatever changes may take place in the courfe of trade ; for if it were otherwife, it would be impoflible to carry on partnerfhip trade. Thus it was held in the cafe of Skipp v. Harwood 2 -; where a partnerfhip was entered into in a brewery between Skipp and -Ralph and James Harwood, and particular terms were then agreed on between them, that Skipp fhould have a certain proportion of the out-flanding debts, and a lien and fecurity on the partnerfhip-flock to make that fhare of thofe debts good to him according to the value fet on them, with a penalty in cafe of a breach. And we find the very fame doc- trine held by Lord Mansfield in the cafe of Fox v. Hanbury b 3 only carried to a higher pitch j for it is in this cafe determined that a i Vez. 242. reported under the title of Weji v. Skipp, but cited by Lord Mansfield in Fox v. Hanbtary as above. b Cowper 449. the Paitttetffjlp— what. 3 the afilo-nees under a commiffion of bank- rupt againft one partner, can only be tenants in common of an undivided (hare, fubject to all the rights of the other partner. And here his Lordfnip cited the words of Lord Hardwicke, ct If a creditor of one partner " takes out execution againft the partnerfhip tc effects, he can only have the undivided " fhare of his debtor; and muft take it in the " fame manner the debtor himfelf had it, nffendorff& obferves that a partner- fhip is contracted fometimes tacitly; when, for example, a thing being bought in com- mon, is not parted, but the interested parties without explaining themfelves further enjoy it equally, each taking the profit that arifes, and contributing his own proportional part in the neceffary cxpences for it's maintenance: focietatem coire, et re, et verbis, et per nuncium pojje noSy dubium mn eft e . But Puffendorfff obferves that in part- nerfhip, tho' one contributes money and work, another only money, yet it does not feem to be a mixt contract. For a contract does not become mixt from the different per- formances, but from our agreements in mat- ters of a different nature by one and the fame covenant. Partnerfhip being a voluntary contract where the confent of the parties engaging therein is neceffary for its formation, thofe a B. 5. c. 8. * Dig. lib. 17. tit. 2. * Lib. 5. c. 2. f. 10. perfons Pactnetdjip— what. 5 perfons who hold any thing in common, independently of their own free will, cannot be deemed partners; and of this latter clafs are donees and the legatees of one and the fame thing, or thofe who thro* other caufes chance to hold fomething between them which is not divided, or is to be pofTeffed in common without any mutual agreement. It is not enough to form a partnerfhip, that two or more perfons hold any thing in com- mon among them, fuch as the legatees, donees, or furchafers of one and the fame thing. For fuch ways of having fomething in com- mon among many, not implying the reci- procal choice of the parties, cannot link them together in partnerfhip. All the par- ties contracting ought reciprocally to chufe and approve of one another in order to form among themfelves that fort of tie, which is a kind of brotherhood; Societas jiis quodamodo fraternitatis in fe habetz. And it feems to have been an eftablifhed and invariable rule that no partnerfhip fhall be contracted except it be of trade or com- merce, or other thing that is honeft and lawful j and all partnerfhips contrary to fuch rule would be unjuft. As for inftance, it would be contrary to equity and honefty, £Dig. 1. 6 3 . fl". pro. foe. B 3 confe- 6 pactnetHjip— what. confequently unjuft, if it mould be agreed^ that the whole lofs fhould fall upon one of the partners without his having any fhare of the profits, and that the whole profits fhould go to another partner, without his bearing any fhare of the lofs h . Si maleficii Jocietas coil a Jit, conjiat nullam ejfe Jo ciet at em generally ter enim traditur rerum inhonefiarum nullam ejfe Jccietatem K Societas flagitiofa rei nullas vires hahet. DeliElorum turps ataue Jxda communio ejl k. Such, then, being the nature of partner- fhip contracts formed by mutual confent, for the reciprocal advantages which may probably arife from the joint flock put in- to partnership, there can be no doubt but, in a moral view, probity and fair deal- ing ought to have, in fuch a contract, an ex- tent proportioned to that of the engagements entered into. In Societatis contraftibus fides exuberet K The very word Partner feems to import the fubftance of the thingj the name is derived h L. 57. ff. pro. foe. & flat. » L. 35. f. 2. ff. de contr. empt. k L. 53. ff. pro. foe. * Inft. b. 3. pro. foe. from pactnerfljfp— what. 7 from Pars, a portion, or that which in di- vifion falls to each; 3nd the properties of a partneifhip are derived from its unify, which is four-fold ; the unity of intereft, the unity of title, the unity of time, and the unity of pnffefiion : or, in other words, partners have one and the fame intereft ac- cruing by one and the fame conveyance, commencing at one and the fame time, and held by one and the fame undivided pof- feflion. In partnerfhip concerns there muft be one and the fame intereft throughout, whether each individual partner contributes equally or not; if all parties contribute equally, each muft receive or bear an equal fnare in the gain or lofs; and where the partners contribute unequally it will only be necefTary to have recourfe to the laws of arithmetical pro^ portion to adjuft their refpeclive fhares. This rule will equally apply, whether two or more partners join labor t or one finds labor and the other money ; or each of them con- tributes both labor and money m . In partnerfhip concerns the feveral part- ners may be faid to have an unity of title, m Puff. Law. p. 513. B 4 becaufe s l^at*nerfl)iij--wHAT. becaufe their intereft in the ftock and effects mult be created by, or arife under, one and the fame agreement. There muft alfo be an unity of time, becaufe the intereft of each partner in the partnerfhip property is creat- ed at one and the fame period n . And, fince it has been decided that partners are feifed per my et per tout, both in antient and modern times, it follows that there muft be an unity of pojfejficn, each partner being pofiefTed by a moiety, and by all ° ; that is they each of them have the entire pofTeflion, as well of every part as of the whole ; each having an undivided moiety of the whole, and not the whole of an undivided moiety. Like the jointenants of a real eftate, Quilibet totum tenet et nihil tenet \ Jcilicet, tctum in com- muni, et nihil Jeparatim per Je p. Upon this principle Lord Mansfield feems to have determined that, if two are partners as attornies and conveyancers, and one of them receives money to be laid out on mortgage, the other is liable for the amount, though his partner fhould even have given a Jepa- n It is laid down as a general rule that joint eftates muft veil at once. Co. Lit. 188, a. o Smith v. De Sylva, Cowp. 471. ? Brcilon c. 5. Tr- 5- c. 26. tatt pannernjip-wHAT. 9 rate receipt for it. Thus it was decided in the cafe of Willet v. Chambers q. This was an aclion for money had and received to the plaintiff's ufc, brought againft the defendant as furviving -partner of one Dadley. Plea, non ajfumpfit. Verdict for the plaintiff, damages 480/. Upon a rule to fhew caufe why a new trial fhould not be granted, the fac~ts appear- ed to be as follows : That prior to any partnerihip between the defendant and Dadley, who was an attorney and conveyancer at Coventry, the latter, in the year 177 \, received of a Mr. Bindley, the fum of 350/. to be laid out on a real fecu- rity : Dadley accordingly furnifhed him with a mortgage from a Mr. Hughes to that amount; which, as it afterwards appeared, Dadley had forged. At Midjummer 1776 Dadley and Chambers entered into partner- ihip : fhortly after which Bindley wanted to call in his money. The pretended mortgagor was fuppofed at the fame time to want a further fum of 150/. which added to the original mortgage money, made together n Cowp. 814. the to Partner fljfp— what. the fum of 500/. The plaintiff Willet was ready to advance this fum : and in confidera- tionofhis doing fo, an alignment was made to him of the -pretended mortgage before made to Bindley. As to 180/. part of this fum of 500/. Willet paid it into Dadiey s> office, to Chambers, who gave the following receipt for it : f< Received of Mr. Benjamin Willety the fum of 180/. for which I promife to account to him on demand — Chambers" Dadiey was not at home when this fum was paid. Some time after the plaintiff called at the office to pay 300/. more, part of the remaining 320/. due. Dadiey being then at home, Willet paid the money to fa; and, in return, Dadiey gave him the following receipt : " Received on account, of Mr. Benjamin Willet \ 300 1. the remainder of the money to be paid, being 20 /. Dadiey." It was admitted that the defendant Chambers was in no refpect privy to the forgery ; and that no procuration-money was paid, either to Chambers or Dadiey. Serjeant Hill and Mr. Green, who mewed caufe, argued, that this was not diftinguifh- able from the common cafe of a furviving partner, who is always liable to partnerfhip debts. Mr. Wallace, pattnrrnifp-wHAT. u Mr. Vl r allace ) Mr. Newnham, Mr. Dun- ning, and Mr. Wheler, contra, in fupport of the rule, contended, that this tranfaction was not within the compafs of the partnerihip, which was for the purpofc of carrying on the bufinefs of attornies only, not that of firiven~ ers. A money fcrivener is a perfon who re- ceives money for the purpofe of deriving fome advantage from the receipt of it. But a mere conveyancer, as fuch, is by no means a money fcrivener. His bufinefs is only to draw deeds and writings fo* the transfer of property from one man to another -, and his profit arifes from his bill of fees and charges for fo doing. The two branches, therefore, though it may happen that they are fome- times exercifed by the fame perfon, are in themfelves totally diftinct and feparate. If fo, the fact of their being united in the partnerihip carried on between the defendant and Dudley, ought to have been proved ; whereas the reverfe is the truth of the cafe. For it is admitted they took no procuration money, and there is no evidence of any pro- fit from the money in their hands. On the contrary, all that Chambers received, was punctually paid over to Bindley : that alone therefore would be an anfwer to the prefent demand. The ieceipts they gave, were feparate 5 1 2 PtUtnerfljfp-wHAT. -p.te\ not, "for fiarJhet and Jelf" but [C for ' b. r promtfe to account." In fhort, the whole of > t ranfattic n was .entirely the partnership, and what each did, • . fhewed he confidered the part he took it, as his own feparate act and deed only. Therefore, they prayed the rule might be made abfclute. Lord Mansfield. Both parties in this cafe undoubtedly are innocent; and the lofs that will fall upon the defendant, if the law is againft him, will be much greater than that which will be fuftained by the plaintiff, if he fails. It is indeed fo hard a cafe upon the defendant, that every leaning of the Court would be in his favour. But the queftion is, "Whether, in point of law, this engagement with Dadley does not make Chambers anfwerable :" To go by fteps. — It is neceflary to fee what, the bufinefs was, which Dadley carried on alone, before his connection with the defendant in the year 1776. By admifllon of the counfel on both fides, it was the bufi- nefs of any attorney and conveyancer. By proof in the caufe, it appears to have been a great deal more. For he had many appoint- ments 3 pactnctfljip— what. 13 ments, though the nature of them is not par- ticularly mentioned. Fie had alfo agencies, and was clerk to a navigation. But there is no pretence that he ever received procuration money. The bufinefs of conveyancing, in the very nature of it, as carried on in the country, is this : Where there is an attor- ney or counfel of credit, they receive money to place out upon fecurities ; and perfons who want to borrow, as well as thofe who want to lend, apply to them for that pur- pofe. Their profit arifes from baying the money in their hands, before it is laid out upon the intended feciiritiesj and from, their fees and bill of charges upon the conveyances they draw. It is not difputed but that this was the nature of Dadley's convevancirw*- bufinefs : He did not act however as a fcri- vener, who fometimes does not touch the money j but who in all cafes gets procura- tion money. There is no proof of any tranfac- tion of that kind ; nor indeed is it cuftorhary for attornies, like him, to do fo ; for they get profit enough without it. I remember a cafe before me of a perfon who was trufted to the amount of many thoufand pounds, in the manner I have ftated ; and that is the nature of the bufinefs. This was the bufi- nefc of Dadley, before the partnerjfcf'p. Let 2 us i4 Partncifljip-wHAT. us fee then what was the nature of the part- nership, afterwards entered into, between Dadley and the prefent defendant; whether it was a general partner/hip in all Dadley'' 's bufinefs, or confined to one particular branch of it only ; for to be fure, there may be fuch a confined partner Jloip. The evidence as to this point confifts in the heads and terms of an agreement entered into between them, which were afterwards extended and reduced into form. From them it appears, there was no particular reftriction ; it was, not to be confined to fuits, nor to conveyancing only, but they were to be partners in the bitfinefs which Mr. Dadley carried on. Each was to be worth a certain fum. The profits are ft a ted at 800/. Then it is agreed that a provifion fhould be made for the family of which ever of them fhould happen to die firft. And then comes the following claufe y at the end, which, though not taken notice of by the counfel on either fide, is very material indeed upon this occafion. My object, in examining it particularly, was to fee whether it contained any restriction. The claufe is this: "Note, this fcheme of partnerfhip is intended to include all Mr. Dadley's prefent and future'' practice and ap- pointment^ fuch as agencies, navigation clerk 9 . Pattnecffjfp—WHAT. i - &c. but not to extend to any public office or place, _ which may at any future time- be given to either of the parties." The only reftriclion therefore is that j or, more pro- perly fpeaking, it is the only excepcion to this general partnerfhip. Thus the partnerfhip commences, without waiting for articles ; and from that time, the bufinefs was carried on in partnerfhip. One branch of that bufi- nefs, was conveyancing. Incident to convey- ancing is, the receiving of money to place out upon fecurities. Receiving it from the lender to advance to the borrower, and acting for both parties refpectively. From that, the profit arifes ; not from procuration-money, but from the money laying in their hands before it is placed our, from the" charges and fees for drawing and engrofiing the conveyances. The fafts then are fliortly thefe :— - The plaintiff fVillet, wanting to place out a fum of 500/. applies to the office without making any diitinction between the two partners. The firft fum he advances is 180/. This he pays to Chambers, who gives a general receipt for it, not exprefiing it to be for Dadley, or for what, or whofe ufe; but making himfelf accountable for the amount on demand. He receives it therefore, as the principal, not as the agent of Dadley: and it r6 Ipnttiterfi&ip— what. it is admitted he knew the ufe, by placing it out upon the fecufity for which it was put into his hands. The next fum, which is 300 /. is paid by the plaintiff to Dadley, who receives it exactly in the fame manner as Chambers did the former fum j as principal 5 and gives a receipt for k, not as for fo much money to be placed out, but as a fum for which he was to be accountable. 1 he two fums together, come within 20/. of what was wanted upon the fecurity. Afterwards the bill for conveyancing is brought in. Hughes being the original mortgagor, if he had not been a fictitious perfon, and had wanted a further fum of money upon the afflgnment, he fhould have paid the expence of convey- ancing. But the bill is brought in, to the plaintiff, and made out " debtor to Cham- bers and Dudley" Chambers receives the money, and gives a receipt for it. In that tranfacLion therefore, he is clearly confi- dered as a partner, and the tranfa&ion it- felf as a partner/hip tranfaftion. If Dadley had received procuration-money, and that kind of dealing had been excepted out of the articles j or, if feparate accounts had been kept of the money got by thefe tranf- afbions., and it had all been fet down to the profits of Dadley only, it might have varied the ISJattnecfljfp— what. if the cafe : and Mr. Juftice AJhhurJl, who tried the caufe, would have been very glad to have given a direction in favour of the defendanc. He fuffers by the rafcality of a man who had a very good character. I am very forry for the defendant j but upon this evidence I cannot fay, but that it is a partner/hip tranfac- tion. Mr. Newnham informed the Court, that the bill included other bufinefs, as well as the par- ticular tranfaflion of the mortgage. Lord Mansfield faid, that proves nothing, but that in general they were partners in the fees of conveyancing. Per Curiam. Rule for a new trial dif- charged. Every man who has a (hare of the' profits of a trade, ought alfo to bear his fhare of the lofs. And if any one takes part of the pro- fir, he takes a part of that fund on which the creditor of the trader relies for his pay- ment. So alfo a man who advances money to a trader, and becomes interefted thereby in the G profits n pattnefnjfp— what. profits of the trade, oftentimes makes him-* felf a fecret partner, though it does not i-rs all cafes conclude him fo. And Mr. Juftice Blackjione fays, that the true criterion (when money is advanced to a trader) is to eonfider whether the profit or premium is certain and defined, or cafual, indefinite, and depending on the accidents of trade. In the former cafe it is a loan, in the latter a partnerjhip. This diftinclion we find made m the cafe of Grace v. Smith*, Eafter term 15 G. 3. C. P. Here was an ajfumpfit for goods fold and delivered j and upon the trial, a verdift was found for the defendant. Davy moved for a new trial j the verdict, as he faid, being contrary to law and evidence. De Grey Chief Juftice reported that this was an action brought againft Smith s, alone as a fecret partner with one Robinfon, to whom the goods were delivered, and who became bankrupt in 1770. That on the 30th of March 1767, Smith and Robin/on entered into partnerfhip for kven years, but in No- r Grace againft: Smith, Black. 998. r * See Abbott v. Smith, 2 Black. 947. vemfiir pattnerftfi)— what. 19 member afterwards fome difputes arifing, they agreed to difiblve the partnerfhip. The ar- ticles were not cancelled j but the diflblution was open and notorious, and was notified to the public on the 17th of November 1767. The terms of the diflblution were, that all the flock in trade and debts due to the part- nerfhip fhould be carried to the account of Robin/on only. That Smith was to have back 4200/. which he brought into the trade, and 1000/. for the profits then accrued, fince the commencement of the partnerfhip : That Smith was to lend Robin/on 4000/. part of this 5200/. or ]et it remain in his hands for feven years, at five per cent, intereft, and an annuity of 300 /. per annum for the fame feven years. For all which Robin/on gave a bond to Smith. In June 1768, Robin/on ad- vanced to Smith 600/. for two years pay- ment of the annuity and other fums by way of intereft, and gratuities, and other large fums at different times to enable him to pay the partnerfhip debts, Smith having agreed to receive all that was due to the partnerfhip, and to pay it's debts, but at the hazard of Rcbinfon. That on the lft of Auguft 1768, the demands of Smith were all liquidated and confolidared into one, viz. 5200/. due to him on the di/Tblution of the partnerfhip; C 2 1 50c/. 2o Partnetfijip-WHAT. 1500/. for the remaining five years of the annuity, and 300 /. for Smith's fhare of a fhip : in all 7000/. for which Robin/on gave a bond to Smith. That on the lid of Au- gujl 1769 an alignment was made of all Robinjoris effects to fecure the balance then due to Smith, which was ftated to be iOjCoo/. Soon after the commiffion was awarded. Davy for the plaintiff infifted, that the agreement between Robinfon and Smith was either a fecret continuance of the old partner- ship, or a fecret commencement of a new- one j being for the retiring partner to leave his money in the vifible partner's hands, in order to carry on his trade ; and to receive for it twelve and a half per cent, profit, whicli could not be fairly done, unlefs it be under- ftood to arife from the profits of the trade : and that he ought therefore to be confidered as a fecret partner. And he relied much on a cafe of Bloxham and Tcurdrinicr againft Pell and Brooke, tried at the fame Sittings (7th of March 1775) De fb re Lord Mansfield in the King's Bench, as in point. " This was alio a partner/hip for feven years between Brooke and Pell; but at the end of one year agreed to be diffolved, but no exprefs diflb- lutioa pnttnctfijip— what. £i Jution was had. The agreement recited, that Brooke being defirous to have the profits of the trade to himfelf, and Pell being defi- rous to relinquifh his right to the trade and profits, it was agreed, that Brodke fhould give Pell a bond for 2485 /. which Pell had brought into the trade, with intereft at five fer cent, which was accordingly done. And it was further agreed, that Brooke fhould pay to Pell 100 1, per annum for fix years, if Brooke fo long lived, as in lieu of the profits of the trade ; and Brooke covenants, that Pell Should have free liberty to infpecl: his books. Brooke became a bankrupt before any thing was paid to Pell. And this action being brought for a debt incurred by Brooke, in the courfe of trade, Lord Mansfield held that Pell was a fecret partner. This was a device to make. more than legal intereft of money, and if it was not a partnerfhip it was a crime. And it fhall not be in the defendant P ell's mouth to fay, " It is ufury, and not a partnerfhip." Grofe and Adair for the defendant argu- ed, that the prefent cafe is very diftinguifh- able from that of Bloxham and Pell. Pell was to be paid out of the profits of the trade, as appears from the covenant to infpecl the books, which elfe would be ufelefs. His C 3 annuity 22 Pattnerdjfp— what. annuity was exprefsly given, as and in Iieta of thofe profits. Ic was contingent in ano- ther view, as it depended on the life of Brooke, by whom thole profits were to be made. In our cafe the annuity is certain, not cafual ; it does not depend on carrying on the trade, nor to ceafe when that is left off, but is due out of the eftate of Robin/on. It is not a neceffary dilemma, that it mud be either ufury or partnerfhip. It may be, and probably was, a premium for the good- will of the trade. Two thoufand gui- neas is no uncommon price for turning over the profits of a trade fo beneficial, that it ap- pears to have been rated at iooo/. to each partner in the fpace of lefs than eight months. And whether that fum is agreed to be paid at once, or by fevcral instalments, it is the fame thing. Befides, whether there be or be not a fecret conftructive partnerfhip, is a queftion proper for a jury, who have here decided it on confideration of all the cir- cumftances. De Grey Chief Juftice — The only queftion is, What conftitutes a fecret partnerfhip? Every man who has a (hare of the profits of a trade, ought alio to bear his fnare of the lofs. pnrtnetitjip— what. aj lofs. And if any one takes part of the pro- fit, he takes a part of that fund on which the creditor of the trade relies for his payment. If any one advances or lends money to a trader, it is not lent on his general perfonal fecurity. It is no fpecific lien upon the profits of the trade, and yet the lender is generally interefted in thofe profits; he relies on them for re- payment. And there is no difference whether that money be lent de novo, or left behind in trade by one of the partners ' who retires. And, whether the terms of that loan be kind or harfh, makes alfo no manner of difference. I think the true cri- terion is, to enquire whether Smith agreed to fhare the profits of the trade with Robinfon, or whether he only relied on thofe profits, as a fund of payment: A diftinclion not more nice than ufually occurs in queftions of trade or ufury. The jury have faid this is not payable out of the profits; and I think there is no foundation for granting a new trial. Gould Juftice — Same opinion, Blackftone Juftice, fame opinion. I think the true criterion (when money is advanced to a trader) is to confider whether the profit qt premium is certain and defined, or cafual, C 4 indefinite 24 pattttcrflji'iJ— what. indefinite and depending on the accidents of trade. In the former cafe it is a loan (whe^. ther ufurious or not, is not material to the prefent queftion) in the latter a partnerjhip. The hazard of lofs and profit is not equal and reciprocal, if the lender can receive only a limited fum for the profits of his loan, and yet is made liable to all the loffes, all the tfebts contracted in trade, to any amount. Nares Juftice — Same opinion. Rule difcharged. 25 CHAPTER II. ipactnei'fljip, HOW CONSTITUTED. A V I N G, in the foregoing chapter, endeavoured to point out the nature of partnership, and alfo the manner in which partnership property is pofieffed; I (hall next proceed to inquire how a partnership is con- flicted, or what will make a perfon fubject as a partner. Partnership is conftituted by agreement, which is either exprejfed or implied, bur, which mull be voluntary between the parties, and ought to be without fraud or deceit. The word agreement, is derived from the Latin, aggregatio mentiam^ which feems to exprefs the joining together of two or more minds in any thing done, or to be done. The Court of Chancery in carrying agreements into execution, govern them- selves by a moral, not a mathematical cer- tainty a . * 2 Atk. 20. So, n6 Pattnctfljfp— So, that if two or more merchants join together in general trade, or for the perform- ance of any particular branch of bufinefs with mutual interefts in the profit and lofs, they are to be confidered partners, being fubject as joint-traders. And although a Court of Equity will not in general entertain a bill for a fpecific performance of contracts foi chat- tels, or which relate to merchandize, but leave it to law b j yet in cafes of partnerfhip, not- withftanding it is in relation to a chattel in- tereft, a fpeciiic performance ought to be decreed. Thus in the cafe of Buxton v. Lift on and Cooper c , where the defendants entered into an agreement for the purchafe of feveral timber trees, marked and growing at the time it was reduced into writing ; and, on the flrft of November 1774, the following memoran- dum was figned by the parties. " Matthew Lifter and John Cooper have " agreed with Jofcph Buxton for the pur- b Sir Jtfeph JAyll did, in Cud v. Rutter, I P. W. 570. decree a fpecific performance in the cafe of a chattel, but Lord Macclesfield reverfed it, and it has been the rule of the Court everfince, not to retain fuchabill. ' 3 Atk. 383, 384. " chafe ijdto conffftttteu. 27 u chafe of all thofe feveral large parcels of ce wood, confiding of oaks, afhes, elms, and " afps, which are numbered, figured, and " cyphered, ftanding and being within the but the partner- fhip being diffolved, the defendant agreed to let a fum of 4000/. remain in Robinfon's hands at legal intereft for feven years, and to receive befides an annuity of 300 /. per annum. for the fame timej all of which was fecured by Robinfon's bond. It was held that this fhould not make the defendant a partner, and fubjecl; to Robinfon's contracts; for he had no concern with the bufinefs, and the annuity and intereft was certain and indepen- dent of the profits. But in Bloxam v. Pell, Sittings Hil. term 1775, and which is cited in Black. Rep. 999. » 2 BUck. Rep. 998. where ijaft canftftute*. 4$ where the defendant had been partner with one Brooke, and they agreed to feparate, and Brooke agreed to give him his bond for 2485/. with intereft, which fum had been brought by the defendant into trade, and an annuity of 200/. for feven years, if Brooke fo long lived, as in lieu of the profits of the trade; and the defendant had at all times liberty to infpect Brooke's books. The defendant was adjudged to be a part- ner and liable; for the charge had reference to the profits, it was cafual as depending on Brooke's life, and his right to infpect the books was that of a partner - . So that the true criterion feems to be, the intereji cf the party in the profits, and it alfo appears to be neeefifary, in order to charge a perfon as partner on the ground of lharing in profit and lofs, to fhew they were concerned not only in the joint purchafe, but in the joint Jale ; that is, that their intereft Ihould continue joint till the time of the fale, when the profit and lofs would be afcer- tained. A man entering into an agreement and afterwards fubdividing his beneficial in- terefl; under it, among others, is alone liable to the performance, and the fub- contract does 46 12f and alfomade ma- ny declarations, that they were all jointly inte- rested in the different purchafes, and that there was a general concern between them. On the part of the defendants it was infilled, that the contract of fale was made between the plaintiffs and Eyre and Co. only ; and that the agreement entered into between themfelves, was only a fub- contract, and did not confti- tute a partnerfhip j and the learned Judge who tried the caufe being of the fame opini- on, directed a verdict to be found for the de- fendants, which was accordingly done. The plaintiffs therefore moved the Court for a new trial, on the ground of mif-direction j and after the cafe had been fully argued, the Court refufed to grant a new trial, being of opinion, that the verdict was proper. For as this was an action on a contract of fale, the vendor can have no remedy againft any per- fon with whom he has not contracted, un- lefs there be a partnerfhip, in which cafe all the partners are liable as one individual. It was juftly obferved, that a fecret partnerfhip can be no confideration to the vendor, though for reafons of policy and general expedience, the law is pofitive with refpect to the fecret partner, fjoto ccnffftutetf. 49 partner, that whendifcovered he mall be lia- ble to the whole extent. In many parts of Europe limited partnerships are allowed, pro- vided they be entered on a regifter ; but the law of England is otherwife, the rule being, that if a partner fhares in advantages, he alfo fhares in all difadvantages. In order to con- stitute a partnerfliip, a communion of profit and lofs is effential : and the fhares muft. be joint, though it is not neceffary that they mould be equal. If the parties be jointly concerned in the purchafe, they muft alfo be jointly concerned in the future fale ; other- wife they are not partners. In the prefent cafe Eyre was a mere fpeculator, and the other defendants were to fhare in the pur- chafe, but were not jointly interefted in any fubfequentdifpofition of the property. Though they may by other purchafes have concluded themfelves as to fome particular vendors, yet in the tranfaction in queftion there was not that communion between them, which is ne- ceffary to make them partners; their agree- ment was a fub -contract, which may be exe- cutory; as it was to fhare in a purchafe to be made. The feller looked to no other fe- curity than Eyre and Co. To them the cre- dit was given, and they only were liable 1 . 1 H. Blac. 37. E In ^o Jpartiietlfifjr— In an implied partner (hip, there mould h? a moral power, at lead, in each individual, of performing what is undertaken on behalf of the whole; and fince the very lafis upon which fuch a partnerfhip muft be founded, is the principle of mutual juftice, fo muft alfo the advantages, or difad vantages arifing from fuch implied agreements between the parties, be determinable alone according to the rules of equity, and not fubject to the exprefs forms of law. Neverthelefs the cuftoms of mer- chants in this country, are univerfally adhered to on deciding upon differences between part- ners of this defcription ; becaufe thofe very cuftoms aim at the prevention of wrong, and are themfelves founded upon the very fame principles of univerfal equity. According to the cuftom of England, \i two joint merchants occupy their ftock, goods and merchandize in common, to their com- mon profit, one of them naming himfelf a merchant, fhall have an account againft the other, naming him a merchant; and fhalF charge him as receptor denariorum, &cm. that is, as receiver of the money of him B. from whatever caufe and contract it fhall redound to the common profit of them A. and B. a y as- m Co. Litt. i~z. lib. Inuat. 17, ifc>, 19. * F.N.B. 117. D* may ijofo confffttttefl. 51 may be made appear by .Lex Mercatoria, 10 //. 7. 16. a. In an action upon the cafe ° againft A. the plaintiff declares upon the cuftom between merchants, &c. that if two merchants are found in arrears upon account, and they pro- mife to pay it at certain days, that any or ei- ther of them may be charged fingly j and then fhewed the account, that A. and B. were found in arrears fo much, &c. and promifed to pay it at certain days, but did not, and the plaintiff brought his action againft A. only, and refolved that it lay. If two joint merchants make B. their fac- torj and one dies, leaving an executor, this executor and the furvivor cannot join in an action againft the factor P j for though the duty- does not furvive, yet the remedy does j and therefore on recovery, he muft be accounta- ble to the executor for that q. Nor can an executor and the furviving merchant be jointly fued, becaufe the firft is 2 Roll's Abr. 702, 703. P 2 Salk. 44i. * Martin v. Crompc, i Ld. Raym, 340. E 2 to to be charged de bonis tejiatoris, and the other de bonis propriis r . In an implied partnerfhip, by the cuftom of England, one of two joint-traders accepts a bilK, drawn on both for him and partner, it binds both if it concerns the trade; but Otherwife, if it concerns the acceptor only in a diftinct intereft and refpect. But, t if a factor of an incorporated Com- pany draw a bill on fuch Company, and any member accept it, the acceptance fhall not bind the Company, nor any other member of it, becaufe it is a private act of the party, and not a public act of the Company. On the fame principle, if ten merchants, each in his individual capacity,, employ one factor, and he draw a bill on all of them, and one accept it, this fhall bind him and not r Carth. 170, 171. 2 Lev. 228. 3 Lev. 290. s Pinkney v. Hall, 1 Salk. 126. Gilb. L. E. 1 1 7> 1 1 8. Kyd, 19-. t Winch. 24,25. Styl. 370. Moll. b. 2. c. 10. f. 18, 19. 29. Ld. Raym. 175. Salk. 126. 2 Salk. 442. 3 Bac. Abr. 611. 5 Mod. 398. 12 Mod. 345. Hard. 405. Vent, 152. Lev. 198.- the Jjafo confffttitek si the reft, becaufe they are feparate in intereft, the one from the other. Whether a corporation, which has not a fpecial power exprefsly given for the purpofe, can be concerned in drawing, or accepting a bill of exchange or promilTory note, or in the negotiation of either, or can be made the payee, is a queftion which feems never to have had the confideration of a Court; per- haps, becaufe nobody has ever entertained a doubt on this head u . And it feems to have been taken for granted by the Legiflature x and it is confident with the general principles of law, that, by the intervention of an agent or fervant lawfully author ifed, a corporation, on which no reftraint is impofed in its ori- ginal conftitution, might in this refpect act as a natural perfon. There is, however, a provi/o in this A£l, that no body politic or corporate fhall have power, by virtue of it, to ilTue or give out notes, by themfelves or their fervants, other than fuch as they might have ifiued, if this Act had not been made. The bank of England has a fpecial power conferred on it for this purpofe y. u Vide Edie v. Eaft India Company, 2 Burr. 1216. x 3 8c 4 Ann. c. 9. F j W. & M. c. 20. f. 28. E 3 Where 54 pattnetfljip— &c. Where a bill or note is drawn in favour of two or more, in partnership with one another, an indorfement by one will bind both, if the inftrument concern their joint-trade: fo z , where it is in favour of them, or either of them, an indorfement by one is a fuffi- cient transfer, though they be not in part- nerfhip. So, where a bill drawn by two is made papable to them or their order, it would feem from principle, that either might transfer without the other j for when two perfons join in the fame bill, they hold them/elves oat to the world as partners , and, for that ptrpofe &re to be treated asjuch. a . % Kyd 6S. 2 Doug. 636, 'si CHAPTER III. pactnecnjfp— DIFFERENT KINDS. AS the proper object of partnerlhip ie to facilitate the undertaking, work, trade, or commerce for which the partner- ship is contracted: and to fecure to every one of the partners out of the Ihare which he has contributed, in conjunction with his co-part- ners, fuch profits and advantages as none of them could be able to make by themfelves ; it may be fit to enquire what are the different kinds of partnerships which tend to produce fuch effects ? And under that defcription are claffed thofe partnerfhips which demand the united labor, induftry, care, credit, money, and other afliftance of feveral perfons for the purpofe of increasing trade and commerce, either foreign or domeftic, and thereby ren- dering the fcience of commerce more bene- ficial to the fervices of the ftate, and profit- able as well as honourable to the merchants and traders themfelves. It is common for perfons to enter either into a general partnerftiip or fociety of all E 4 their *fi pattttetfljfp— their goods a , or into a particular partner^ fhip which regards only fome fingle fpecies of commerce j and the (lock and effects which are put into the partnerfliip, become common to all the partners, altho' they are not delivered, (after an agreement executed between the parties) and altho' they remain in the pofleflion of that partner who was the owner of them before the pat»tnerfhip was contracted. For, (by conftruction of law) the intention of the partners to communi- cate the goods, according to agreement, makes a tacit delivery of them, and each of the partners pofTefies for all the others, that which belongs to them in common, which is in his cuftody ; each of them being pof- feffed per my et per tout. The king by his charter may conftitute fraternities, or companies, for the manage- ment of foreign or domeftic trade b. For trade, cannot be maintained or in- creafed without order and government c ; and therefore, the king may erect gildam mercata- > Xvivuvw, i. e. Communion, Jufl. de Societate, lib. 3. tit. 26. b Com. Dig. Trade, (B ) c Com. Dig. Trade, (D.) tiam x Dfffetent mum. 57 rUm, a fraternity or incorporation of mer- chants, for the advantage of trade d . And none but the king can erect a fociety for trade, or public trading company e. But the king by his charter cannot make t\ total rellraint of trade, for fuch a patent would be void f f None of the public trading companies in- corporated by royal charter in this country for the purpofe of trade, are to be confidered as partnerfhips, within any of the legal prin- ciples applicable to partnerfhips formed by the voluntary agreement of individuals. For in fuch chartered companies where a trade )s to be carried on under the corporate name in joint flock (as is the cafe with the Eqft- India Company, &JV.) there are exprefs pro- vifions that the members are not liable, on account of the joint trade, in their individual capacities; nor one of them for the debts or engagements contracted by others ; but only for their refpective fhares or intereft in the joint flock, and that upon trade, and 3 8 Co. 125. a. e Skinner 224. i 3 Mod 132. contracts 5 8 par titer i&fp— contracts carried on, or made in the corpo- rate character of fuch chartered bodies. Therefore if one or more perfons enter into fuch a fociety, and become fharers of the property and joint ilock, yet fuch a join- ing together does not conflitute partnership according to the cuftom of merchants, nor •within the principles of law eftablifhed re- fpefting joint traders. Partner/hip, which, in arithmetic is deno- minated Fellowjhipy or the mode of adjufting partnerlhip accounts and profits, is a rule of great ufe in balancing accounts amongft mer- chants, and owners of (hips ; where a num- ber of perfons putting together a general flock, it is required to give every one his proportional fhare of lofs, or gain. The golden rule feveral times repeated, is the bafis of fellow/hip, and fully anfwers all queftions of that kind : for as the whole flock is to the total thereby gained, or loft ; fo each man's particular fhare is to his proper fhare of lofs or gain. Wherefore, the feveral fums of money of every partner are to be gathered into one fum, for the fir ft term; the common gain^ or lofs, for the fecond ; and Different mentis. 59 and every man's particular fhare for the third; and the rule of three is then to be wrought fo many times as there are partners. There are two cafes of this rule in arith- metic, the one without, the other with time. Fellowlhip without time, is where the quantity of (lock, contributed by each per- fon is alone confidered ; without any particu- lar regard to the length of time that any of their monies were employed. For example: A. B. and C, freight a fhip with 212 tons of wine; A. laying out 1342/. B. 1 1 7 8 /. and C. &30I. towards the fame; the whole cargo is fold at 32/. per ton. Q^ What fhall each perfon receive ? Find the whole produce of the wine by multiplying 212 by 32, which yields 6784. Then, adding together the feveral flocks, I 34 2 » 1 178, and 630, which makes 3150, the work will ftand thus: r 1342— Anfw. 2890, 1993, &V, 3150: 6784^1178 2537, 0006, &c f [ 630—— 1356, 8. i- ■ m ■ Proof 3150 6784. Fellow* 6o pai'tnetflNp— Fellowfhip with time, is where the time wherein the money, &c. were employed, enters into the account. As for example, viz. A. B. C. commence a partnerfhip the firft of January, for a year. A. the fame day difburfed 100/. whereof he received back again, on the firft of April, 20/. B. pays, on the firft of March, Go I. and more, the firft of Augufi 10c/. C. pays, the firft of July, 140 /. and, the firft oiOZiober, withdraws 40 /. At the year's end their clear gain is 142 /. Qu. What is each partner's dueg? A.'s 100/. multiplied by three months, the time it was in, makes 300/. and the remaining 80, by nine months - 7:0, in all 1020/. of ^.'s contribution. For B. 60, into 10, gives 6o3; and 100 into 5, 500 j in all 1100/. for B. For C. 140 into 3, gives 420 j and 100 into 3, is 300 ; in all 720/. for C. Now, 1020-I-1 100+720 .-2840 for the common antecedent, and the gain 142, is for the ge- neral confequent ; the rule will ftand thus : fi020 Anf. 51 2840 ; 142 < 1 100 55 t 720 36 Proof 2840 142 g N. E. All the particular times (if not fo given) mufl be reduced into one dcncmination ; viz, into years,n;onths, weeks, ex d By Ufffemtt Mim Ot By the Roman Law, the facial contract, or partnerfhip, needed no othw folemnity, bus the fole confent of parties, without any writing at all. The French diftinguifhed three kinds of mercantile fociety ; ordinary fociety, called alio colkcllve and general -, fociety in commendam or commandity j and anonymous fociety , called alio momentary and inconnne. The firft was where feveral merchants acted alike in the affairs of the fociety, and did all under their collective names, which were public, and known to every body. Society in commendam, &c. was that be- tween two perfons, one of whom only put his money into flock, without doing any other office of a copartner ; the other, who was called the complementary of the fociety, dis- patching all the bufinefs under his own name. This fociety was very ufeful to the fbate ; in- afmuch as all kinds of perfons, even nobles, and profeffional men, might contract: it, and thus make their money of fervice to the pub- lic ; and thofe who had no fortune of their own to trade withal, hereby found means of eftablifhing themfelves in the world, and of making making their induftry and addrefs fervice- able. Jnonymons fociety was that where all the members were employed, each particularly, in the common intereft, and each was ac- countable for profits, &c. to the reil ; but without the public's being informed thereof; fo that the feller had only an aclion againft the particular buyer, no other name appear- ing. It was alfo called momentary, becaufe fre- quently made on particular occafions, and ceafing with them : as in the making a pur- chafe, the felling any commodity, &c. Of this they diftinguiflied four kinds '.Jsci- ety by participation, which was ufually formed by letteis from one city to another, where a merchandize was to be bought or fold. The fecond was, when two or three perfons wenE together to fairs to buy goods. The third, when two or three perfons agreed to buy up the whole of fome commodity, in any coun- try, to fell it again at their own price. And the fourth was, when three or four perfons made a journey together, to buy and fell the fame commodity. Bcfides merchants, peo- ple Wffetent mm. 63 pie of quality, &c. were admitted into thefe anonymous Jocieties . Although partnerfhip, or fellowship, and company, or fociety, according to the civil law writers, mean much the fame thing j yen the cuftom of England has made a difference between them ; partnerfhip, being underftood of two or three dealers, or not many more; and company ufually of a greater number; fuch are the fraternities of the feveral profeffions and trades incorporated within the city of London. So alfo the Eajl-India Company, or other like corporations, which cannot be efta- blifhed without the conceffion of the Sove- reign, by letters patent, charters, &c. Where- as in partnerfhip, the bare confent of the partners, fixed and certified by acts or con- tracts, is wholly fufficient ; which acts or con- trails are made for the reciprocal advantage of all who engage therein, and in which fuels care is necefiarily exacted from each partner, as every prudent man commonly takes of his own concerns in life; confequently each part- ner fhould be aniwcrable for wilful neglect in the joint trade or commerce fa engaged in for their mutual benefit. 1 Partnerihips U |3tortiiecfljfp— Partnerfhips in trade differ from one ano- ther according to the degrees of intereft, and the intention of the perfons who join in them ; and they are, either, where all the partners appear oftenfibly, or, where fome of them are dormant ; with a view to confider the nature of fuch partnerfhips, I fhall proceed to clafs the different kinds as they feem to occur in the ordinary courfe of mutual deal- ings and tr an factions in trade. And fuch partnerfhips in trade may be claffed under two heads, namely, general, and JpeciaL Firft, general, for the ordinary purpofes of carrying on trade. Secondly, ^w/rt/, for a particular concern, or in a fingle dealing or tranfaction, as part-owners of fhips, and for a fingle voy- age under a charter-party of affreightment, or other wife. «5 CHAPTER IV. $3attnerfljfp— uenecal. ACCORDING to the tenor of the d* vil law, it would leem that a general partnerlhip included in it every thing that might belong to the partners, either real or perfonal, or which they might acquire by any lawful caufe whatfoever. But, in order to purfue the plan prefcribed in the foregoing chapter, it may be fufficient for me to confi- der the nature of a general partnerlhip, as far as it applies to the ordinary courfe of mutual dealings and tranfactions in trade, which re- fpects only perfonal chattels, and is regulared by the law merchant as eftablifhed in equity, and confirmed by common law. Where two or more merchants agree to join together in any way for the purpofe of carrying on trade, they are faid to be in com- pany, and muft be confidered partners. And by the law merchant, which is part of the law of England *y they are recognized and * Co. Lit. n. b. 2 Roll. Abr. 114. F treated *£ Pactiterfljfp— treated as partners, whether there was arc ex* frefs agreement entered into by the parties or not, provided they appear oftenfibly to the world as joint-traders. In fuch a general partnerfhip, where an in- dividual merchant deals with either of them,, he goes upon the credit of the ivhok b r confi- dering the act of one, in a joint concern, as the act of the whole copartnership firm, throughout the ordinary courfe of generai trade- So in the cafe of — v. Layfieldc, where fhere are feveral partners, and a man goes lip- en the credit of ally the act of one fhall be pre fumed the act of all, and is evidence againft the reft, to bind the whole, unlefs ei- ther of them can fhew a difclaimer, or refufal to be concerned. In this cafe Layfield and the other defendants were bankers, and Lay- field fold a lottery ticket in the double exchange lottery (in which feveral bankers were trus- tees) to the plaintiff, and undertook to pay the prize arifing from it, the other partners were held to be liable, no difclaimer appear- *» 3 Bac. Abr. 590. ® Nifi Prius, per Holt, Ch. J. 1 Salk. 292. o * general e? ing; for the lottery having been concluded by bankers, the plaintiff appeared to be well grounded in looking to the. joint-credit of Layfield's partners. But, notwithstanding, where the perfon bringing the action has looked to the faith of feveral partners, who are in bufinefs together, and has relied upon their joint-credit, though but one only of the partners acted, the proof of the act of one fhall charge them all ; yet it muft be made out in an action at common law d , that fuch. debt or contrail was joint, before the other partners fhall be charged. " For in ajfumpfit againft feveral, a joint " debt or contrail muft be proved j otherwife " the proof would not correfpond with the " declaration." Yet Courts of Equity have governed themfdves by more general rules, as to the mode of proof. And here occurs that moft excellent defi- nition of the mode of proof, as laid down by Mr. Juftice Blackjlone?, in his chapter of proceedings in the Courts of Equity. given by the common law of this kingdom* I will add, 4thly. The policy upon which the Act was made, is from experience become doubt- ful. — Bad and unikilful workmen are rarely profecuted. This general. 83 This aft was made early in the reign of Queen Elizabeth. Afterwards, when the great number of manufacturers who took re- fuge in England from the Duke of diva's per- fection had brought trade and commerce with them, and enlarged our notions, the re- ftraint introduced by this law was thought fo unfavourable, that in 33 Eliz. in the Exche- quer (4 Leon. 9 PI. 39.) it was conftrued away ; for it was holden clearly by the judges in that cafe, which conftruftion however I take not to be law now, " That if one hath (< been an apprentice for feven years at any " one trade mentioned within the faid ftatute, " he may exercife any trade named in it, " though he hath not been an apprentice " to it." All thefe observations only (hew, ** That tc this aft, as to what enforces the penalty of " it, ought to be taken ftriblly " and accord- ingly the conftruftions made by former judges have been favourable to the qualifications of the perfons attacked for exercifing the trade, even where they have not actually ferved ap- prenticelhips. They have, by a liberal inter- pretation, extended the qualifications for exer- cifing the trade much beyond the letter of the aft j and have confined the -penalty and prohi- G 2 bition bition to cafes preci/ely within the exprefs fet- ter. Let us confider whether the prejent cafe be within, the letter or even the meaning of this- acl. The general policy of the act was to have trades carried, on by perfons who had /kill in- them. Now here the per/anal fkill of the defend- ant makes no real difference in the cafe ; for the perfon who is {kilful, acls every thing,, and receives no directions from this man - y he neither did, nor was to interfere, The cafe of Hobbs and 2'otmg is not parallel*. There the defendant, zfmgle man, directed" the whole trade; was the majler ; and directed 1 all the fervants as between mnjler zndjervant- y no doubt it is the majler who carries on the trade, and not thejcrvani. But in Hobbs and Young there was no partner flip ; nor (what is> the diflinguifhing character of the prefent cafe) a mere naked fharing of the profits, and rifqueing a proportion of the lofs ; without his acting or directing at all, in any manner whatfcevesv I-r* ■pnrraf?. 8-5 5n many considerable undertakings, it is ^bfolutely neceflary to take in peribns as part- ners to fhare the profits and rifquc the lofs. And the general uiage and practice of man- kind ought to have weight in determinations of this fort, affecting trade and commerce, and the manner of carrying them on. It is notorious that many partnerships are entered into, upon the foundation of one partner con- tributing induftry and fkill, and the other money. Many great breweries and other trades have been carried on for the benefit of infants and ref.duary legatees, under the di- rection of the Court of Chancery. Now if the plaintiff's conduction was to hold, the whole direction and decree of the Court of Chancery was contrary to law, and to an ex- -prefs act of Parliament. So it is likewife practifed in other great trades. The late Mr. Child directed his bufinefs of a banker to be carried on for the benefit of his children and other perfons. Many other inftanccs might be mentioned. It would introduce the ut- ■rnoft confufion in affairs of trade and com- merce, if this construction ihould prevail. On the other hand, I fee no inconvenience. It is exactly the fame thing as to the trade in every iota, '" whether this partner has or has " not ferved an apprenticefhip." Therefore G 3 I think $6 paitncrfijip— I think the defendant not liable to the •penalty of 5th Eliz, Mr. Juftice Denifon faid that this was a new cafe. For though the cafes of Rex v. Drif- field, and Adcock v. Gele, were indeed before the Court, yet no opinion was delivered in either of thofe cafes. He concurred that it was not an exercife of trade within 5 Eliz. The true intent of that act was, that no man fhould exercife any of thofe trades, unlefs he had fkill in them. It has never been extended by any liberal con- flruclion of it, in point of enforcing the •penalty. And the prefent queftion is, " whe- ther this man has exercifed the trade, within the meaning of it, fo as to be liable to the penalty ?" Now it is here found, ft that he never did interfere in the trade him/elf" In the cafe of Hcbbs v. Toung, the defendant was the fuper- intender of the work, and did exercife the trade, without having any fkill in it. And this is the point in queftion, and the principal determination in that cafe of Hobbs v. Toung, whatever elfe might drop from the Judges in giving their opinion. But here the de- fendant pneral. *7 fendant never meddles at all, but leaves all the management to a partner who had (kill j he himklt never aeled in carrying on the trade. It may be faid indeed, " that Chafe is lia- " ble to the fiatutes of bankrupts," True,; but the constructions of thofe acts made for. the benefit of the bankrupt's creditors, is ve- ry different from the construction of t\\\s pro- hibitory and penal 2.^. ; which ought to receive ajiriff conftruition in point of extending the fenqlty* Therefore for thefe reafons, and thofe given by the Lord Chief Juftice, he held., * f that this was a not exercifing the trade within « the ad." Mr. Juftice Fojler concurred ; and faid, he had prepared himfelf to give his reafons at large j but as the Lord Chief Juftice had gone through them fo fully, and inforced them in fo clear and fatis factory a manner, he would only, in general, declare his concur- rence. Mr. Juftice W'iimot was of the fame opinion, ,By the Court unanimouily judgment was given for the defendant. G 4 *ff CHAPTER V. pamtetOjip— special. IN this chapter I am to treat of jpecial partnerfhip, in contradiftinction to fuch as is general. Throughout the common occur- rences of trade and merchandize, partnerfhip becomes fpecial, from fome peculiar circum- ftances which arife out of the nature of the contract, or the condition of the parties con- tracting, and it is ufually contracted for a particular concern., or for a fmgle dealing or tranfacuon. In many parts of Europe, confined and li- mited partnerfhips are contracted and allow- ed, provided the parties have fuch agree- ments entered on a regifter ; and the rifk of lofs in fuch cafe is very frequently limited and confined to one fide only, and ufurious intereft may confequently be received without incurring any rifk: to remedy which fuppofed evil in this country, limited partnerfhips have been difallowed in our courts here; for in England the rule is faid to be a, that if a * H. Blac. 37. partner Ipattnet(ljtp-&c s 9 partner mares in the advantages, he (hall alfo (hare in all the di fad vantages of the partner- fhip concern. This fubjec"t appears to have been difcuffed by writers upon the civil law, and a queftion hath arifen, If A. and B, fhould covenant be- tween themfelves that A* fhould receive two parts of the profit, and bear but a third of the lofs, and that B. fhould bear two parts of the lofs, and receive but a third fhare of the pro-, fit, whether fuch an agreement fhould be binding ? Some have been of opinion, that fuch a covenant was contrary to the nature of partnerfhip, and ought not therefore to be ra- tified j but, a different opinion feems to have prevailed, and for this reafon, becaufe the la- bour of fome is fo highly valuable, that it is. but juft, that they fhould be admitted into partnerfhip upon the moft advantageous con- ditions. Another opinion hath alfo obtained amongft them, namely, that a partner may by agreement take a fhare of the profit, and not be accountable for any part of the lofs ; and it is faid that this might be done equi- tably : but then it mult be fo underflood, that, if profit accrues from one fpecies of things and lofs from another, only what re- mains, after the lofs is compenfated, mall be looked 90 13arti;ct*fl)fp— looked upon as profit. Yet, according to the conftruction of our laws at the prefent day, it appears to be the received opinion, that, in order to constitute a partnership, though ever fo fpecial in its nature, a communion of profit and lofs is efiential : and the (hares mud be joint, though it is not necefTary that they Ihould be equal b . Partnerfhip may be faid to be Jpecial, when it is contracted for a particular concern or for a fingle dealing or tranfaction, as by part-owners of mips ; and for a fingle voyage under a charter-party which is an agreement by indenture, whereby the owners, matter and freighters of a ihip covenant with each other, that fuch a Ihip fhall be fit and ready to fail, take in fuch and fuch lading, carry and tranfport the fame to fuch place or places, in confederation whereof the freighters or merchants are to pay fo much, &c. and fuch charter-party being a covenant or agreement for that particular voyage, mall be conftrued according to the intention of the parties, and the ufual cuftom of merchants c . b H. Black. 48. c 2 Vent. 196. Style 133. 2 Show. 384. Palm. 399. 2 Roll. Adt. 248. pi. 10. Fop. 16 r. Special fpccfal. 9 1 Special indentures of co-partnerfhip are often executed by merchants, as part-owners of a fhipdj without which fpecies of partner- ihip, the commerce of this ifland mull be trifling indeed; for it is by fuch means that we are enabled to embark in and carry on foreign trade, which renders us, rich, honour- able, and great ; that gives us a name and efteem in the world; that makes us mafters of the treafures of other nations and coun- tries, and begets and maintains our fhips and feamen, the walls and bulwarks of our own ifland. And this fpecies of co-partnerfhip is not conftituted by executing of indentures folely, but part-owners of a fhip may become fo either by building or purchafing their vefTels e , and if the property is distributed among fe- veral, the major part of them may let the ihip out to freight againft the confent, though not without the privity of the minor f . Part-owners are tenants in common of a fhipg; and both by the common law of this 4 Vide Paul v. Birch, 2 Atk. 622. eMolloy3i3. Beawes 53. f Trin. 9 Will. 3. 1 Ld. Raym. 235. C Moljoy 309. realm, 9* partncrdjip— realm, and the maritime laws, it is provided, that in cafe a ihip be taken away or the owners difpoffelied, they may maintain an .action of trover and converfion foF an 8th-, a 16th, or any other part or fhare of the fame. Thus, in an action on the cafe, the plain- tiff declared that he was owner of the 1 6th. part of a fhip, and the defendant owner of another i6th part of the fame fhip, and that the defendant fraudulently and deceitfully carried the faid fhip ad loca tranjmarina, and difpofed of her to his own ufe, by which the plaintiff loft his i6th part to his damage; and on Not Guilty pleaded, a verdict was found for the plaintiff, but it was afterwards moved in arreft of judgment, that the action 3 janititetfljfp— the courfe is to go into the Admiralty, and there give fecurity to anfwer for the fhip if fhe be loft, and then they fhall be difcharged againft the other. If one diflike the voyage, and doth not exprefsly prohibit navigating the fhip, and the fhip go the voyage, and is loft, in fuch cafe he fhall not be anfwered his part; but if the fhip return, he fhall have an ac- count, for what is earned, and it fhall be in- tended a voyage with his confent, without an exprefs prohibition proved. As if four te- nants in common of land, one or more ftock the land, and manage it, the reft fhall have an account of the profits j but if a lofs come, as if the fheep, &c. die, they fhall bear a part. Per North Lord Keeper. Part-owners being tenants in common of a fhip s " If one tenant in common dejiroys the " thing held in common, the other may have x Molloy 322. )' Molloy 310. 4 Infllt. 146, has fpecfal io i has not the property of the (hip. but the own- ers, and he is only a part ; cular officer, and can only recover for his particular lofs, yet he may bring tiefpafs, as a bailiff of goods may, and then as bailiff he can onlv declare on his poflefllon, which is fufficient to maintain trefpafs. If the mailer of the (hip takes goods on board for hire, and is robbed in port, he muft anfwer the damage; otherwife it is if he be robbed by pirates on the high fea, for then the owner muft be the lofer a ; for if he un- dertakes for hire to carry the goods, the com- mon law cannot look upon him in a different afpecl: from a common carrier; for he cannot be looked upon as a mere fervant to the owner, but rather as an officer of the (hip, and to fell the bona peritura? which is beyond the condition of a fervant: but the civil law of the Admiralty excufes the matter when robbed by pirates, or on lofing the goods by any inevitable accident; for the da-gers of the fea are fo various and fo formidable, that a mafter (hall not be underftood to undertake againft them, unlefs it had been included in a i Vent. 190, 238. Raym. 220. 3 Keb. 72, 112, 135. 1 Mod. 85. 2 Lev. 69. S.C. More and Shee, 3 Lev. 259. S. C. cited 2 Lord Raym. 9 18. II 3 the xo2 partner (Wp— the exprefs words of the contract j for where, in a well-ordered fociety, a man undertakes for the cuftody of another's property, he fe- cures him againft all lofs j but where a man is bound to encounter dangers, which civil fociety cannot guard againft, he muft not be fuppofed to undertake farther than for his care j and by the general cuftom of com- merce, the merchant is the perfon who runs the rifk, and not the mafter of the fhip ; and it is the merchant alfo who makes the gain of the venture. And, as the. mafter himfelf is anfwerable in the foregoing cafes •, fo likewife hath it been held, that the owners are liable to the freight- ers, in refpect of the freight, for the em- bezzlements, &c. of the mafter and mari- ners b . But this proving a great difcouragement to trade, by the 7 Geo. 2. c. 15. reciting that, Whereas it is of the greateft confequence and importance to this kingdom, to promote the increafe of the number of fhips and yeflels, and to prevent any difcouragement to mer- chants and others from being interested and b Carth. 58. 2 Salk. 44.0. 3 Lev. 258. 3 Mod. 322. concern- fpccial. 103 concerned therein ; and whereas it has been held that in many cafes owners of fhips or vefTels are anfwerable for goods and merchan- dize fhipped, or put on board the fame, al- though the faid goods and merchandize after the fame have been fo put on board, fhould be made away with by the mafters or mari- ners of the faid fhips or vefTels, without the knowledge or privity of the owner or owners, by means whereof, merchants and others are greatly difcouraged from adventuring their fortunes, as owners of fhips or vefTels, which will neceffarily tend to the prejudice of the trade and navigation of this kingdom ; there- fore, for afcertaining and fettling how far owners of fnips and vefTels fhall be anfwerable for any gold, filv.er, diamonds, jewels, pre- cious ftones, or other goods or merchandize which fhall be made away with by the mafter or mariners, without the privity of the owners thereof, it is enacted, " That no perfon or " perfons who is, are or fhall be owner or " owners of any fhip or veflfel, fhall be fubject " or liable to anfwer for, or make good to tf any one or more perfon or perfons, any lofs " or damage by reafon of any embezzle- iC ment, fecreting or making away with, (by " the mafter or mariners, or any of them) of tc any gold, filver, diamonds, jewels, precious H 4 " ftones, i04 partner Sip— " ftpnes, cr other goods or merchandize^ " which from and after the 24th of June, 11 1734, (hall be fhipped, taken in, or put on " board any (hip or veffel, or for any act, ct matter or thing, damage or forfeiture done, as mafter of the fhip of which other defendants were part-owners, bought feveral goods of the plaintiffs \ as beef, bifcuit, fails, and cordage ; Gdlh:ay the mailer failed. The bill was to compel the defendants, the part-owners, to pay; who infilled, that Gallway only was liable; and befides that he had money from the owners to pay the plaintiffs. Per Cur. Galhvay .the mafter was but a fervant to the owners ; and where a fervant buys, the mafter is liable. f 2 Vera. If fpecfal. ti5 If the owners paid their fervant, yet if he paid not the creditors, they mult ftand liable: and decreed the owners to pay the plaintiffs their debts in proportion to their refpective (hares and interefts in the fhip. Special partnermip may alfobe contracted under a charter-party, and all the parties fo covenanting become liable Sin a given ex- tent, as partners according to the law- merchant. A charty-party is an old inftrument, inac- curate and informal, and, by the introduc- tion of different claufes, at different times, it is alfo fometimes contradictory ; but, like all mercantile contracts, it ought to have a libe- ral interpretation. Per Lord Mansfield^, in the cafe of -Hot-bam and the Eajl-India Com- pany. The charter-party fettles the agreement as the bills of lading do the contents of the car* go. (There are three bills of lading gene* rally made, one to be fent over fea to him whom the goods are configned to, another for the matter, and the third for the mer- « Molloy 366. * Dougl. 2-7, I chant H4 pattiwf&fp- chant or lader), and binds the mailer to deli- ver them well conditioned, at the place of difcharge, according to the agreement; and for the performance, the mailer or the owner obliges himfelf, fhip, tackle, and furniture*. And the parties are either owners of fhips on the one part, and merchants on the other; or mailers of fhips inverted by the owners with power to enter into charter-parties, and merchants. Charter-parties, fays Molloy, Hubert filed his bill in chancery againft all the creditors under the joint com- miflion, except one Mr. Thomas CheJJon, for a difcovery how their refpeclive debts arofe; and to controvert among other things his being a partner with the faid Robert Nelfon> or him, his eftate, or effects being liable to the debts or demands of the fame creditors or any of them; and after fuch fuit had been fome time depending, Mr. Hubert made an honourable propofal to the creditors, which, they all thought proper to confent to; and upon payment of a certain fum into the bank of England in the names of truftees, the cre- ditors entered into articles of agreement with Hubert, that they would accept the fame in full ©tterfttg Into. 145 full fatisfaction of their debts; and that they would not only procure the faid commiflion of bankruptcy to be fuperfeded, but alfo the faid fuit in chancery to be difmiffed out of court without cofts. The fum agreed upon was afterwards paid by Hubert and the fuit: was difmiffed j and on the 12th day of De~ €ember 1741, with the confent of the credi- tors, the joint commifiion of bankruptcy Bgainft Hubert and Nelfon was fuperfeded. It therefore behoves every one upon enter- ing into partnerlhip to be very circumfpect, and not too haftily form fuch a connexion with one who is a ftranger; for it ought not to be forgotten that one partner may con- tract debts, even in the partnerfhip itfelf, fo far unknown to the other, as that the other may be involved in the danger of them, tho' he was not at all concerned in, or acquainted with them at the time they were contracted. So alfo may one partner difcharge debts for the co-partnerfhip firm, and if he has an evil intention, may receive money and give receipts for it on the joint account, but, not carrying it to t\\ confidered the plaintiffs (the afllg- nees) as interefled in the fhare of the fhip, fo to have been taken and paid by the bankrupt, only as the fum of 410/. us. yd. was to the fum of 4658 /. 15'j. id. the amount of the cofts and outfit of the faid fhip and cargo : and that the defendants were entitled to the remaining part of the fhare the bankrupt had originally originally propofcd to take. That the plain- tiff Nutt prefled the defendant De Silva feve- ral times to pay the faid 410/. us. 7 d. and to take the fame to himfclf, with the profits and rifk thereof. That the fir ft intelligence the defendant had of the fhip having made a profitable voyage, was on the 24th February, 1773. The queftion was, Whether the affig- nees, as (landing in the place of Hague the bankrupt, were entitled to one third, or to what other lhare of the profits of the ad- venture ? Mr. Mansfield for the plaintiffs -, Mr. Dun- ning for the defendants. Lord Mansfield, after ftating the cafe, pro- ceeded thus : The adventure having proved a profitable one, the queftion is, what (hare the arTig:iees of Hague are entitled to ; whe- ther they are entitled to one third of the pro- fits, and of the money arifmg from the fale of the fhip, or only to the proportion which the fum of 410 /. paid in money by Hague towards the expence of fitting cut the fhip, r-s to the whole amount of fuch orisn- O ch was 4658 /. ? There is he rule which muft . :i the dcterrninatjun of this cafe in ,a court i6o pactnetfijfp- court of law or equity. It depends upon the right of the bankrupt; and to find out wha£ the right of the bankrupt is, it will be necef- fary to confuler/r/j, how it flood at the time of the bankruptcy $ and/econdly, whether any alteration has happened fince to vary fuch right. Firft, At the time of the bankruptcy, the whole expence was incurred. Hague was liable to Dc Sitva for the amount of the notes and a partner in thirds. The adventure was then at fea, and De Silva y as purfer or huiband of the (hip, was liable to him for the amount of his third mare of the profits, whatever they might be. But fuppofe the other partners were liable to thofe who trufted ~De Siha > the confequence on a bankruptcy between partners is, that they are entitled as againft each other to the balance of accounts j and fo it was fettled in the cafe of Skip v. Har- ivccd, before Lord Hardwicke, in Chancery. Therefore, if the other partners had been obliged to d.ifcharge the amount of the notes which remained unpaid at the time of the- bankruptcy, the anagnees mud: have allowed the other partners the full fum paid for the bankrupt, and Could have come againft them only for the balance doe to him, if any. This is not the c:At of a >uiv trading, or a new ad- venture begun cf:cr an aft of" bankruptcy* la ftfgljtg, &c. 161 jn that cafe, it is fair to fay, that the bank- ruptcy diflblved the partnerfhip : but here, all the expence was incurred prior to the bankruptcy ; and if the bankrupt by an accef- fion of fortune had had fufficient, and the voy- age had proved a lofing one, he would have been liable for the whole in proportion with the other owners. Therefore, he had clearly a right to a third of the profits at the time of the bankruptcy ; and the infolvency of the bankrupt does not vary his right. Secondly, there has been nothing done fince which can make the leaft variation : for every thing- that has been done, was done without the pri- vity of the bankrupt or the affignees. Con- fequently, their right cannot be varied by an agreement between other perfons, in which they were not concerned. It is immaterial whether De Siha pledged his own credir on- ly to the tradefmen, and took the feparate credit of the partners for the (hare of each, or whether the other partners were liable to the tradefmen for the whole. The queftion is, what was the right of the bankrupt ? If the other partners were not liable to De Siha for his (hare, yet the bankrupt, upon paying the full amount of his (hare, was entitled to a third of the profits, as he would have been liable to a third of the lofs, if the adventure M had i62 pat'tnctfl)f|>— had been unprofitable. When I fay upon payment in full, I mean payment according to law. If he had not become bankrupt, it mud have been an actual payment of the whole of his (hare; but as he is become bankrupt, it muft now be a payment accord- ing to the diftribution made by law in that cafe j which is a proportionable dividend with the reft of the creditors. Therefore, whether it were a profitable or a lofing adventure, cannot vary the right. The confequence is, that the aflignees are entitled to one third of the fhip and adventure in queftion. Jfton and Jfihurjl, Juflices, of the fame opinion. Per Cur, Let it be indorfed on the pqfiea y that the aflignees of the bankrupt are entitled to one third of the value of the fhip, and of the profits of the adventure in queftion. And we find alfo the fame principle eftablifh- ed in a variety of other cafes. Thus in Hey- don v. Heydon, Mich. 5 W. & M b . another perfon being co-partner with the defendant, a judgment was obtained againft him, and all the goods of both of them were taken in execution. b Holt C. J. 302. Halt Holt C. J. and the Court adjudged that the Sheriff muft feize all the goods, for the moi- eties are undivided ; and if he feized but a moiety, and fells that, the other copartner will have a right to a moiety of that moiety ; therefore he muft feize the whole, and fell the moiety thereof, and then the vendee will be tenant in common with the other partner c . See here in like cafe by Holt C. J d . Al- though partners have joint and undivided in- terefts, yet only the fhare or part of him againft whom execution is fued, and no more, can be feized upon this execution. And likewife in the cafe of Bachkurft v. Clinkard, Mich. 2 W, & Me. Cafe againft the defendant as Sheriff of Kent, reciting a judgment at the plaintiff's fuit againft Wil- liam Dykes, for 400/. and a fieri facias thereon delivered to the Sheriff, that though Dykes had divers goods and chattels, yet he had neg- lected to feize them, and made a falfe return of nulla bona ; non cul. Pleaded on a trial before the Lord Chief Juftice Holt. The cafe was thus : Dyke, Brown and others were c 4 Bac. Abr. 460. Salk. 392. ,l 1 Show. 173, 174, Comb. 217. c Holt 643. M 2 partners 1 64 IPartiterRjfp — partners of feveral goods of great value : Brown being indebted, a fieri facias was fued againft him, and thereon thefe goods were all feized, and in the Sheriff's cuftcdy, and con- fequently not liable to the plaintiff's execu- tion. Held by Holt C. J. that being once feized in a cuftody of law, they could not be feized again by the fame or another Sheriff; and if they were fold thereon, fuch bargain would be void. Held alfo that though they had joint and undivided interefts, yet only the ihare or part of Br own y and no more, could be feized upon the execution againft Brown's goods i and confequently Dyke had goods ; and fo the return was falfe, and verdict and judgment for the plaintiff. Holt C. J. — The Sheriff has no power to receive money from the defendant upon a capias; his bufinefs is only to execute his writ : and if in fuch cafe the Sheriff after be- came infolvent, and do not pay the plaintiff, fuch payment fhall not excufe the defendant. If Sheriff fuffer one execution to efcape, the plaintiff has his election to fue the Sheriff upon the efcape, or elfe the defendant, but he cannot have a capias againft the defendant without a fcire facias, % So EigOtg, &c. 16c So in Eddie againft David/on f. In this cafe the defendant was partner with one Birnie t againft whom a commiffion of bankrupt had ifTued, but, before the bankruptcy, the plain- tiff "had fued out execution on a bond of the defendant's for 700/. and the Sheriff had le- vied on the partnership effects. Bertie's af- fignees obtained this rule, to fhew caufe why the Sheriff fhould not pay them a moiety of the money arifing from the fale of the goods fo taken in execution, upon an affidavit of Bernie's, that he was entitled to an equal (hare of the partnerlhip effects, as partner with David/on. The plaintiff's affidavit, on fhewing caufe, denied that Bernie had an equal fhare in the partnership effects, and ftated that he had embezzled the joint-ftock to a confiderable amount. The Court directed that it mould be re- ferred to the Mafter to take an account of the mare of the partnerlhip effects to which Ber- nie was entitled 5 and that the Sheriff mould pay a part of the money levied, equal to, the amount of fuch fhare, to the affignees. { Douglas 650. M 3 Thus i66 pni'tnetfljfp— Thus where two joint-partners are in trade. Judgment was entered againft one of them. And upon a fieri facias, all the goods, being undivided, were feized in exe- cution. And upon application to the King's Bench by him againft whom the judgment was not, the Court held, that the Sheriff could not fell more than a moiety, for the property of the other moiety was not affected by the judgment, nor by the execution. Jacky v. Butler Z. And the fame principle is alfo adhered to in the cafe of Richardjon v. Good- win '"> ; where Richardjons fenior and junior, and one Jarjon were partners together in trade, and Jan/on embezzled and wafted the joint ftock, and contracting private debts be- came a bankrupt. The Court feemed to think, that out of the produce of the good's, the debts owing by the joint trade ought to be paid in the firft place, and that out ofjan- foris, fhare, fatisfaftion mull be made for what Jan/on had wafted or embezzled ; and that the aflignees could be in no better cafe than the bankrupt himfelf, and were entitled only to what his third part would amount unto, S z Ld.Raym.871. Comb. ziy. S. P. 3 P. Wms. 25. Vide 12 Mod. 446. k. 2 Vern. 293. clear -clear after debts paid, and deductions for his embezzlement. And this rule has been fince confirmed by a decree of Lord 'Talbot's. Gojs v. Dufref- noy 1 . A bill was brought, fetting forth that Gofs, Neaulme, Gromvegan and Prevoft became part- ners. That Prevoft was intruded with the goods in the (hop and warehoufe, but became profufe, and embezzled the partnerfhip flock, and applied the fame to his own ufe, and fuf- fered the partnerfhip debts to be unpaid ; and having contracted private debts on his own account, became a bankrupt, and a feparate commiffion was taken out againft him. A queftion was raifed, whether Prevoft's fhare of the partnerfhip ftock ought to be ap- plied, in the firfl place, to pay what he was indebted to the partnerfhip ? Lord Talbot ordered an account of what Prevoft had embezzled of the partnerfhip eflate, and that the partnerfhip debts fhould in the firfl place be paid to the joint-creditors in proportion to their debts, and as far as the i Davies 371. M 4 partner- 168 pattnerfljip— partnerfhip eftate will extend j and that if any of the partnerfhip eftate remains, after the joint-debts are paid, then the fame to be di- vided, and the partnerfhip to be paid out of Prevq/t's fhare what he had embezzled. Therefore if one partner dies, though the debts and effects furvive, yet the furvivor is confidered in equity barely as a truftee for the representatives of the deceafed, upon which footing the accounts mull be taken, and nothing confidered as the fhare of the furvivor till afterwards, becaufe of the conti- nuance of the property in the flock to the representative of the deceafed partner, who has a fpeciflc lien thereon, although the furvi- vor afterwards dies or becomes bankrupt. And if the partnerfnip is dillolved by con- fen t, that does not determine the legal intereft, which continues as before ; fo that the pro- perty of the flock of the partner fo going our, is not devefted thereby, but he remains equally entitled as joint-tenant with the other; and in a bill for an account, the flock would be fubjefled for his fatisfaction. And as be- tween one partner and the feparate creditors of the other, they cannot affccl the flock any further than that partner could, whofe cre- ditors they are. Thus Thus in the cafe of Weft and Skipk, where a partnerfh;p was entered into in a brewery, between Skip, and i^/p£ and James Harwood, and particular terms then agreed on between them, that Skip fhould have fuch a proportion of the out (landing debts, and a lien and fe- curity on the partneifhip ftock, to make that (hare of thofe debts good to him according to the value fet on them, with penalty in cafe of a breach. After this fome differences arofe between them on a fuggeftion that Ralph Harwood drew more than he ought out of the ftock, and received debts without the privity of Skip, with feveral other breaches of cove- nant and mifbehaviour ; which produced an action by Skip for the penalty of the articles j in which a judgment was recovered: but be- fore execution thereon, Ralph Harwood con- feiTed a judgment to his fitters; who took out execution by elegit, and laid hold of the partnerfhip ftock, which was aftlgned by the Sheriff. Skip, infilling that this was a fraudu- lent aft to cover the effects, took out a com- miffion of bankruptcy againft Ralph Har- wood : upon whofe application to fuperfede it, iiTues were directed to try whether he was a bankrupt or not at the time of the commif- k l Vezey 242. flOlL 170 partiterfljfp— fion. But inftead of trying it, the partners came into a rule by confent, by order of Niji Prius, which was afterwards made a rule of C. B. and which order was, that Ralph Har- ivood ihould execute a bond with penalty to Skip, and procure two other bonds with pe- nalty conditioned to pay to Skip, what ihould be due to him on the day of the date of the order, with the intereft ; and ordered with like confent, that the partnerfhip fhouldceafe as on that day, and the account of the part- nerfhip trade ihould be carried on to that day, and no farther : and that upon Ralph Hay- wood's giving fuch fecurity as before men- tioned, the commiffion ihould be fuperfeded, the officers difcharged, and the effects deli- vered. Under this order nothing effectual was done ; the whole thereof depending upon Ralph Harwood's giving the fecurity therein mentioned j which he not performing, mo- tions were made in C. B. for attachments againft him for contempt in breaking this rule ; which, being found to be only a per- ibnal remedy with no effect, produced an ap- plication to Chancery under the commiflion of bankruptcy : and by confent of the parties it was ordered, that the rule of C. B. ihould be difcharged, except fo much as related to the diffolution of the partnerfhip ; and or- dered. dered to reftrain Rarwood from difpofing of any of the effects except in the way of trade; and that it fhould be tried again. On the trial a verdict was found, that at the time of iffuing the com million Harwood was no bank- rupt ; and ordered, that the commiflion fhould be fuperfeded. 6 kip filed a new bill in this court, fetting forth all this 5 praying an ac- count and fatisfaction for the breaches of covenant, and to be paid what was due to him out of the goods and effects taken in execution; and that the defendant might be restrained from getting in the partnerfhip effects to his prejudice. The caufe was put off feveral times, that Harwood might find fecurity, to prevent the appointing a receiver. But upon his not doing it a decree was made, and a receiver appointed. It appeared af- terward, that Harwood had endeavoured to fe- crete the effects in a very extraordinary man- ner during the hearing of the caufe, after the proportions made to him, and time given him to comply therewith; getting in the debts, and giving receipts where nothing was paid ; which produced a commiflion of bank- ruptcy by other creditors eight days after making the decree: and thcfc acts of Har- tvood y done really to elude the decree and appointment of the receiver, were now fee up up as a&s of bankruptcy. This occafioned new contefts, and a new bill by the afiignees, infilling that Skip has no property either legal or equitable againft them : but that his debt ought to be levelled with all the other debts of Harwood : and he be confidered barely as a creditor. And Skip brought a bill to have the partnership eftate firft difpofed of for his fatisfa&ion : and that nothing fiiould be con- iidered as belonging to the Harwoods till after that deduction : and to carry on the former decree. Lord Chancellor. — The main, if not the only queftion is, firft, whether Skip has any intereft in, or fpecifick lien upon this ftock ; Another and very different queftion, (though It has not been treated as different at the bar) is, Whether the filters, defendants to both bills, are to be confidered, as between them and the afiignees, as having any intereft In, or fpecific lien upon this ftock j the firft decree having confidered them, from the time of the elegit y as partners; the firft muft be confidered in two lights; firft, whether Skip, as between him and the Harwoods, is to be confidered as having any fpecific intereft at the time of the commiffion. Secondly, fup- pcfing he had, whether any thing happened to Eig!)t& &c. i 7J to vary that right, as between him and the afiignees ; particularly whether this fpecific lien is gone by the 21 Jac. 1. c. 19. and thefe goods to be confidered as the effects of the bankrupt, to be diflributed among all the creditors. As to the firfl, it is infilled, that from the diffolution of the partnerfhip by the order of Nifi Prius, Skip had parted from or varied his fpecific lien in the goods; and had reforted by confent to take perfonai fecurity for his demand; and that however that be as to the old flock, yet as to the nev/, he certainly can have no fpecific property, interefl, or lien thereupon. It is necefTary to confider what kind of lien Skip had origi- nally, as between him and the other part- ners : then how it was after the diffolutiont then how it would have flood, if the quefliort had arifen between the reprefentative of a partner and furviving partner; as that will go a great way to determine the other. The partners themfelves are clearly joint-tenants in the flock and all effects : not only that particular flock in being at the time of en- tering into the partnerfhip ; but to continue fo throughout ; whatever changes might be made in the courfe of trade. Otherwife it is impoffible to carry it on. And being leifed per my et per tout 3 when an account is to be taken. i74 patfriictiBtp— taken, each is intitled to be allowed againft the other every thing, he has advanced or brought in as a partnerfhip tranfaction, and to charge the other in the account with what that other has not brought in, or has taken out more than he ought : and nothing is to be confidered as his (hare, but his proportion of the refidue on balance of the account. That this is fo at law, appears from two cafes, 1 Ld. Raym. 871. and Bey don v. Heydcn, Salk. 392. where it was held, that judgment and execution againft one partner for his feparate debt does not put the other in a worfe condition ; for he muft have all the al- lowances made him before the judgment creditor can have the (hare of the other ap- plied to him. So if one partner had died, the debts and effects furvived : but yet the furvivor is confidered in this court barely as a truftee for the reprefentatives of the de- ceafed; upon which footing the account would be taken, and nothing confidered as the (hare of the furvivor till afterward : which is from the continuance of the property in the (lock to the reprefentative of the deceafed partner, who has a fpecific lien thereon, al- though the furvivor afterward dies or be- comes bankrupt. So if the partnerfhip was diffolved by confentj as in this cafe, that de- termines Rfg&t& &c 175 termines not the legal intereft, which conti- nues as before; fo that the property in the ftock of the partner fo going out is not de- veited thereby, but he remains equally in- titled as joint-tenant with the other; and in a bill for an account the flock would be fub- jected for his fatisfaction. Then as between one partner and the feparate creditors of the other, the law and thofe two cafes before- mentioned fay that they cannot affect the ftock any farther, than that partner could, whofe creditors they are. It is objected, that all this is allowed by the rule, by which Skip confented to determine the partnerfhip, and that perfonal fecurity ihould be given ; which is a waving his property, and refort- ing to perfonal fecurity: but that is a mod {trained conftruction, and there is nothing in the rule to import it. The price to be paid for Skip's fhare remained to be fettled, and the bond for. payment was never executed ; Harwood having trifled and performed no part. It is impoiuble therefore to confider Skip as parting with his lien upon this ftock by this rule, when nothing was done toward carrying it into execution. But the fubfe- quent proceedings (hew, that Skip infilled on it, viz. his bill, and the order was made to reftrain Harwood from difpofing of his ef- fects ; iy6 l^ilCtttetftjlp — - fects j for which order there would be rid ground, had Skip been cunfidered only as a feparate creditor, and not as having a fpeci- fic lien. But the more material confederation is, whether any, and what alterations is made by thefe acts of bankruptcy, and the com- mifTion thereon; which fhall now betaken for granted to have well ifTued, and to have been acts of bankruptcy, without entering into that queftion. And to fhew that in point of law and equity fuch an alteration has been, and thereby Skip has loft his fpecific lien, the claufe in 21 Jac. i. c. 19. is infilled on : the ccnftruction of which claufe has been much controverted and argued in the cafe of Ryal v. Rowksi which cafe yet waits for the opinion of the Judges; and therefore I at firfl doubted, whether it (hould not wholly ftand over, till that refolution is given. But on confideration I think, I can form an opinion (at leaft to fatisfy myfelf) without prejudice to any queftion, that may arife in that cafe; of which this will ftand clear. Firft obferve, that this is not a cafe ftrictly within the words of the preamble of that claufe; which is a defcription only of goods and effects of the bankrupt himfelf, configned by him to another, who fuffers them to be left in the poffefiion of the bankrupt. And in V Apoftre v. Le ¥. he Plaijlrier, cited in I JVms. 31$. it was held by Holt C. J. that the enabling claufe fhould be explained by the preamble i but my opinion fhall not be founded on that. This cafe clearly, according to Holt's opinion, would not be within this claufe j for Skip's fhare was his own; not being afilgned by him to Harwood; nor within the preamble. But I will not determine a point, in which fuch. great Judges differed; as Lord Cowper did, with fome warmth, from Holt, in the cafe of Copeman v. Gallant, 1 IVms. 314. nor is it neceffary. But what I found myfelf upon, is, that by the enacting claufe to fubjedt goods to the creditors of another perfon, thofe goods at the time of bankruptty Ihould be left in the pofTeffion, order or difpofition of the bank- rupt; fo that he might take upon himfelf to fell or difpofe as owner : and there has been no cafe upon this act, or ever will be, wherein a court of law or equity will do fo fevere a thing as to fubjeft the property of one to the debts of another, without proof of the con- fent of the real owner to leave them in the power of the bankrupt (pofTeffion not only- being fufficient) or a laches in letting them remain there, fo as to gain him a falfe credit. N The 178 gartncrfoip-- The contrary of which appears here; for it is impoflible to take more methods to pre- vent it, than Skip did ; the evidence being that there is no fuch implied confent, efpe- cially as there was no execution by Harzvood. Nor do I found myfelf on the notion* of a lis pendens -, which, it is infilled for Skip, fub- fifted at the time of the bankruptcy, by the bringing his bill, fo as to be iufficient notice; which queftion I would not willingly deter- mine, becaufe there is no cafe, where this court has determined the property of goods to be affected by reafon of a lis pendens, where pofleflion is the principal evidence of owner- fhip, as of perfonal chattels, which might be of dangerous confequence: though as to real eltate it may be otherwife. But what I go upon is, that this cafe is not within the act of Parliament: therefore if the queftion arofe on the cafe of the mortgage of goods, or an abfolute fale, and the vendor did not deliver them at the time appointed, but on trover againlt him kept the vendee at arms length, and in the mean time became bankrupt -, this, would hot be confidered as a leaving the goods by vendee in the poffeffion of the bank- rupt within the act ; the vendee having done every thing in his power to get the pofTeilion from him. So if a mortgage (which is the. cafe 3Rfff6t& &c 179 cafe of Ryal v. Rowles) of goods, which are contracted for and agreed to be delivered into the party's own hands, or the key of the warehoufe (which in bulky goods is all that can be done) but no fuch delivery is made; and a bankruptcy follows j detinue having been brought for them, they would not be confidered as left in the pofTeffion of the bankrupt; the purfuit in a court of ju Mice excluding any actual or prefumed confent. Farther ftill: fuppofe a partnerfhip deter- mined by effluxion of time; one intends to continue the trade, the other will not, inflat- ing upon a divifion ; and on non-compliance brings an action at law, or a bill in equity for an account, and to reftrain the difpofing of thofe goods, the poflfefTion of which is wrongfully kept from him by his partner; who pending this becomes bankrupt: this would not be within the ftatute. Skip therefore is intitled to the fame fpeci- fic lien againft the affignees as againft Har- wood: and that even as to the new flock; for in all thofe cafes of a lien on a partnerfhip it is not confidered as appropriated to the flock brought in, but to every thing coming in lien during the continuance or after the determi- nation of the partnerfhip. As in Bucknal v. N 2 Roijion, i So pattiict(t)i|T-~ Roifton> Tree. Chan. 285. where a lien was- held to be on thofe goods, which were the produce of the original goods. So in Brow?v v. Heathcote, Mich, term 17^.6, I held, that it continued, on what was the produce by- way of barter and fale: and that hoMs much more ftrongly in the cafe of a partnerfhip trade which cannot otherwife be continued. It is faid, that the acts of Parliament relat- ting to bankrupts intended to level thefe fpe- cific liens, as they do judgments unexecuted : but that is becaufe of the exprefs words of the act of Parliament, that judgments un- executed mould be levelled] for otherwife they would continue fpecific liens. Another queftion is between the affignees and the lifters j in which arifes a difficulty in refpect of the penning of the former decree j which could not then be forefeen ; as then no bank- ruptcy had taken place, and the Harwoods themfelves were partners. The fitters infill tin tv/o fpecific liens ; firft by the inquisition taken by the elegit ; fecondly by afiignment of the officers of excife when the effects were feized. Upon which a very different quef- tion arifes, as between the affignees and the filters, from what it was between Skip and the filters ; for as againit Skip the fillers could only affect the fhare of Harzvood t on the au- thority .tliority of Heydon v. Heydon, and 2 Ld. Raym. $ji. It was immaterial to Skip to enter into the queftion, whether they are general cre- ditors or not; but as the afllgnees can only affect a fhare of that fhare, it may be very material to them, whether the fitters have .gained a preference by thofe two liens. And that may be influenced by the opinion of the Judges in Ryal v. Rowles : for the fitters on the elegit do not take poflefllon of the goods but leave them absolutely with the Uarwoods. The queftion therefore arifes, whether by this claufe they are not excluded, being ei- ther a plain confent or great laches: and it holds more flrongly againft a creditor by exe- cution than any other j for if a creditor by fieri facias feizes the goods of the debtor, and Suffers them to remain long in the debtor's hands, and another creditor obtains a fubfe- who was alfo dead) his neareft relation, who ad- minifterecj miniftered to him ; and the bill being amend- ed, and (lie made a party, by her anfwer claimed the property in queftion, as his re- prefentative, and alfo as a bond creditor. The caufe coming on to be heard in Michael- mas term 1790, Mr. Hardinge for the plain- tiffs : There are two queflions. 1. Whether the afUgnee can compel the adminiftratrix to pay the joint eftate to them ? 2. Whether a feparate bond creditor can come in before the joint creditors are paid ? In the prefent cafe the joint eftate has been applied by the affignees for their own benefit. This is a clear ground for intereft at the ufual rate: for it has been determined, that wherever truftees have made ufe of truft mo- ney, they (hall pay intereft for it at the ufual rate; without reference to what intereft they have actually made: and the delay ufed in this cafe will be a fufficient reafon for the defendants to pay the cofts. The affignees objected to any dividend beyond the moiety of the joint effects ; the bill prays a divificn of the whole fund. Here 1 86 ipartncrfijfp— Here is a joint fund got into the hands of feparate affignees ; out of whofe hands it can- not be taken, but by the joint creditors. Mrs, Wooldridge claims it for the purpofe of pay- ing Kelly 's feparate creditors ; fo that it is a queftion between the joint and feparate cre- ditors. It fo happens that one of the feparate creditors is administratrix -, but the only ef- fect that can have, is between her and the other fpecialty feparate creditors. Then it is Kelfyy by his administratrix, claiming againit the joint creditors. What is a partnerfhip ? Partners are joint tenants of the joint fund ; the confeqnence is, that one can retain the whole fund ; the one has no claim on the other but upon the iettlement of accounts. Fox v. Hanbutjy Coivp. 448. Smith v. De Srfoa, Coivp. 469. Suppofe fVocldridge had paid the joint debts out of the fund, Kelly could not have recovered but on an account. As between a furviving partner and thereprefen- tative of the deceafed partner, the furvivor at law has the whole right, though he is a truf- tee ; but he ads fairly if he pays all the joint debts, and pays over a moiety of the furplus. Here the affiances are tenants in common of one moiety, and, by chance, they have the other moiety in their poiTefiion, but they muft pay >fg6t& &c 187 pay it to the joint creditors, as appears by the principles laid down in Weft v. Skip, 1 Vezey 242. There is no cafe in the books in point with this, but the principle is laid down in feveral cafes. In Gofs v. Dufrefnoy, dated 1 Cooke's Bankrupt Law 289. the partnerfhip debts were ordered to be firft paid. Mr. So- licitor General and Mr. Mansfield (for the af- fignees). The commiifion was, to all intents, a feparate commifiion, but joint debts were, proved under it. Kelly's moiety of the joint fund is a fund not to be diftributed under the bankruptcy. If Kelly had received the moi- ety, and paid feparate creditors with it, the payment would be good. There is a real difficulty, in this cafe, as to Kelly's moiety of the fund. The afiignees have diftributed the moiety among the creditors, but did not think themfelves entitled to difiribute the remaining moiety during Kelly's life. It was Kelly's money in their hands, and he could not have made them pay interefl, as they were only his fimple contract creditors. They were perfons not interefted (being not even creditors) appointed by the creditors to get in the fund, and have kept the money by ne- cefiityj they ought not, therefore, to pay in- tereft : and as the fuit was made neceflary by the doubts entertained, they (hould not pay coils. 188 pattnetfltfp— cofts. Mr. Graham riling on behalf of Mrs, Wooldridge, the adminiftratrix, Lord Chan- cellor (lopped him 3 faying*, that the point would be refcrved to him, whether the fepa- rate creditors were firft to be paid out of the moiety before the joint creditors. His Lord- fhip faid, that where one partner is folvent, and the other bankrupt, the affignees can do nojuftice without dividing the joint eftate among the joint creditors ; for they are joint tenants of the whole, if they can get it in. It was referred to the Mafter to take an account of the joint eftate of IVooldridge and Kelly, and of the feparate eftate of JVooldridge come to the hands of the defendants the affignees, and to the hands of the defendant Sufannah JVooldridge, as adminiftratrix of Kelly, and to enquire whether the refpe&ive partnerfhips of the defendants Garrat and Roivlatt, had paid them any intereft for fuch parts of the eftate of IVooldridge and Kelly as came to their hands ; and that they fhould be charged with fuch intereft, and that the Mafter fhould com- pute intereft at 4 per cent, on the reft of the money which came to their hands from the time of their receiving the fame; and the Mafter was to enquire what creditors had fought relief under fVooldridge*s comrniffion, and which of them were joint creditors, and whether &fffljt$, &A 189 whether any of the joint creditors had nos proved, and his Lordftiip declared, that the joint creditors of Weoldridge and Kelly were to be confidered as creditors on their joint: eftate, and that the affignees- fhould pay the 3176 /. 14 s. \d. admitted to be in their hands, into the bank, and the fame fhould be laid out in trull in the caufe ; and referved further directions,, till the Matter fhould have made his report. Upon the 29th November, the Mafler made his report, and thereby cer- tified, that he had taken the accounts as di- rected ; and that it was admitted before him, that there had come to the hands of defend- ants Garratt and Rovjlatt, of the joint eftate of JVooldridge and Kelly (including a fum of 450/. 18 s. 5 d. arifing from the feparate eftate of tVooldridge as after mentioned) the fum of 6 .64/. 1 Si 5 d. and that they had expended, on account of the joint eftate, fums amounting to 3199/. 13 s. id. which left a refidue in their hands of 3564/. &s. 3d. and that it was admitted, there had come to their hands of the feparate eftate of Wooldridge the fum of 450/, 18 s. 5 d. which made part of the money received by the defendants from Pope and Hawkins, the former affignees of Wooldridge, and which had been divided among the creditors who had proved under 3 Wooldridge** 190 partnetiljip— Wovldridgis commifilon, and that there was not any thing remaining in the hands of the defendants Garrait and Rowlatt, of the fepa- rate eftate of JVooldridge, except five treafury orders of ico/. each, bearing an intereft of 3/. 10 j. per annum, taken in purfuance of the acts for giving relief to American fuffer- ers, to Sujamiah ffooldridge, and the defend- ants Garratt and Ravlatt, jointly ; and that the defendant Sufannah had not in her poiTef- fion any part of the joint or feparate eftate. He then found that defendants Garratt and Rczvlatt, had on the 15th March 1791, paid the fum of 3166 /. 16 s. q.d. into the bank, (which had been laid out in the purchafe of 3897 /. 1 2 s. 6 d. Bank i,per cent, annuities), and which being deducted out of the balance in their hands, the fame was reduced to 397 /. us. lid. and it was admitted before the Mafter, that the partnerfhip in which the defendant Garratt was concerned, had paid him intereft for fuch part of the joint eftate of Wooldridge and Kelly, as had come to his hands, 6951. \os. gd. which was all the intereft made by defendant Garratt, of the joint eftate, at the time of paying the money into the Bank ; and that the defendant Roiv- latt had been paid, from the co-partnerfhip in which he was concerned, for intereft on fuch fuch part of the joint eftate as had come to his hands, 309/. 1 9 s. 10 d. which was all tne intereft made by him, at the time of the payment made into the Bank; and he certifi- ed that he had computed intereft on the re- maining fum of 397 /. 1 1 s. n d. the balance in the hands of defendants Garratt and Roiv-* latt, from the 3d March to the 29th Novem- ber, and the fame amounted to 11/. 14 x. 8 d. and that he had, in the 3d fchedule to his report, fee forth an account what joint: creditors had proved under IFooldridge's com- mifiion, and the fum proved by each, and the dividend paid to each, and that one perfon only who had not before proved, Andrew Verrier, had come in before him, and proved ajointdebtof 22 7. 1 9 s. 6 d. and that no fums of money (except the dividends) had been received by the faid joint creditors. The caufe came on for further directions on the Matter's report, on the 8th February, before Mr. Juftice Butter, fitting for the Lord Chancellor, when Mr. Graham Ihortly argued on the part of Mrs. IVocldridge, that fhe was entitled to a priority with refpect to the fe- cond moiety of the j >int eftate ; and that the affignees coul 1 only divide one moiety among the joint creditors. But Mr. Juftice Butter thought thought the afilgnees muft adminifter all the joint affets in payment of the joint creditors^ and that Mrs. IVooldridge had no priority againft them, and, therefore* referred it back to the Matter to tax all parties their cofts, and ordered the 3897 /. 1 2 s. 6 d. (landing in the name of the Accountant General, in trull in the caufe, to be fold* and that the money to arife from the fale, together with the cafh in the Bank, and the intereft upon the 3S97/. 1 2 s. 6 d. until the fale, mould be paid to the defendants Carratt and Row- latt the afllgnees, who were to apply the fame, together with the 1408/. iys. id. reported due from them> in payment, firft of the cods, and then to divide the refidue pari pa/Jit among the creditors named in the third fchedule to the Mailer's report, and to An- drew Verrier i a creditor who had proved a debt before the Mafter ; and, by confent, it was ordered that the five debentures mention- ed in the report to be in the hands of the af- fignees, mould be delivered up to the defend- ant Sufannab IVooldridge. And after a difiblution of partnerfhip, the right in law and juftice which one partner has againft another, according to the dittum of Lord Mansfield mt " clearly is not to change m Cowp. 449. « the IRfSljtjEf, &c 193 " the poffefiion, or to make an actual divi- tc fion of fpecific effects." One partner may be a creditor of the partnerfhip to ten times the value of all the effects* The other partner in that cafe can only have a right to an account of the partnerfhip, and to the balance due to him, if any, on that account. For no perfon deriving under the partner can be in a better condition. And> if one of two partners become bankrupt, the folvent partner may, if for a valuable confederation and without fraud, difpofe of the partner/hip effects ; and if he afterwards fail, the afllgnees under a joint commiffion againft both, cannot maintain trover againft the bond fide vendee of fuch partnerfhip ef- fects. Thus in the cafe of Fox et al* af- fignees v. Hanbury et aV ' n where upon a rule to fhew caufe why the arbitrator named in an order of Nifi Prius made in this cafe, fhould not be directed to fettle, in his award, the account of the confignments of tobacco to the defendants, proved on the trial, from the time of the bankruptcy of Thomas How Rid- gate; the cafe, as reported and ftated by Lord Mansfield, appeared to be as follows . n Cowp. 445 „ O This i94 3PatrtncrflE)fp — This was an action of trover brought by the plaintiffs, as affignees under a joint com- miflion of bankrupt, taken out againft John Barnes and Thomas How Ridgate, bankrupts, to recover 40or hogfheads of tobacco. The declaration confided of two counts : one charging the trover and coriverfion to be before either of the bankrupts had committed an act of bankruptcy : the other charging it, fubfequent to an act of bankruptcy com- mitted by both the bankrupts. Barnes and Ridgate were partners ; Ridgate lived in England, and Barnes lived in Mary- land. Ridgate was under very large acceptances, and much preffed for money. To fupport his credit Hanbury agreed to pay, and actually did pay, feveral bills for him. But with a view to better carrying on the bufinefs, Ridgate was to go to Maryland, and Barnes was to come to England; Hanbury in- terpofed his credit, upon the confidence of confignments of tobacco being made to him, which would be a pledge for the monies he advanced. Ridgate fcfff&W, &c 1 9 5 kidgate told his clerk that he was going to Maryland, and that Barnes would come over to England; but bid him fay, the day he fet but, that he was gone to Banbury** country houfe, and would return foon. Mauduit a creditor called, and had that anfwer. Rid- gate went to Maryland, and Barnes Came to England. No umbrage was taken by the creditors at this exchange of the refidence of the two partners : neither Ridgate, Barnes, or Hanbury had an idea that this exchange of refidence was an act of bankruptcy. There was no intention to commie an act of bank- ruptcy. Confignments of tobacco Were made by Barnes to Hanbury, before Barnes lefc Mary- land, and there were other confignments af- terwards. Upon the lid of January 1773, Barnes after returning to England committed an act of bankruptcy, and afterwards publick- ly failed. Then and not before, the creditors fet up Ridgate's going to Maryland as ari act of bankruptcy by him, and they took out a joint com million againft both: and the plain- tiffs, in the capacity of afUgnees under the cammifllon, brought the prefent action. O 2 Whether i 9 6 pnctnetflnp— Whether Ridgafe's going to Maryland, un- der the particular circumftances before-men- tioned, fhould be conftrued an act of bank- ruptcy, was a queftion much litigated at the trial. The jury upon the mifreprefentation to Mauduit before- mentioned, were of opi- nion it was j and accordingly found him a. bankrupt upon the 15th of July 1772, the day on which he left London. No fraud or want of confideration was fixed upon Hanbury. But the plaintiffs infilled, that all the confign- ments after the 15th oijuly 177-2, were void. The defendants infilled, that all the confign- ments before the 2id of January 177,], were good. There were consignments after the 22d of January 1773, which the defendants could not fupport; and therefore as to them, an account was necefiar.ily to be taken of the value of the tobacco, which fo came to the hands of the defendants, after making juft allowances. That account was referred to an arbitrator j and the queftion, whether the plaintiffs were entitled in this adlion, to reco- ver the whole of the value of the confio-n- O ments made by Barnes between the 15th of July 1772, and the 22d of January 1773, or a moiety thereof, was fubmitted to the opi- nion of the Court : and accordingly to fuch opinion, fuch confign ments are to ftand or fall, HUflfoW, &c. 197 fall, and to be brought into, or left out of the account, by the arbitrator. This cafe was argued twice, firft in Hilary Term laft by Mr. Wallace and Mr. Butter for the plaintiffs, and Mr. Mansfield and Mr. Dunning for the defendants. The Court then ordered it to be argued by one counfel on each fide, this Term. It was accordingly argued by Mr. Butter for the plaintiff, and Mr. Mansfield for the defendant. Mr. Butter for the plaintiffs infifted, iff, That the confignments were fraudulent, be- ing with a view to give the defendants a pre- ference, and therefore void for the whole. 2dly, If not void for the whole, the plaintiffs were at leaft entitled to a moiety : for by the bankruptcy of Ridgate, the partnerfhip was immediately diffolvcd - 3 and fo it was held by Lord Mansfield and Yates Juftice, in the cafe of Hague and others, affignees of Scott againft Rollefion, 4 Bur. 2174. If ^o y Barnes, the folvent partner, had no longer a power over the whole, but each had his own moiety only to give or grant. If an execution iffue againft one of two partners, the Sheriff, though he may feize the whole, can only fell an undi- vided moiety. Hey don v. Hey don, iSalk.392. . O3 By 193 pattnetlWp— By the fame rule, a bankruptcy fevers from the time ; for a bankruptcy is an execution in the firft inftance. From the moment, therefore, that Ridgate failed, the power of Barnes to bind the whole of the partnerfhip effects ceafed j confequently, the plaintiffs were entitled to a moiety. Mr. Mansfield for the defendant, contra t contended, that the plaintiffs could not reco- ver on either count. For if the goods were th? property of both the partners, as alleged in the firft count, each had a right to difpofe of the whole - y and the confignment by one partner was the confignment of both. That here there was not even a fuggeftion of fraud ; and confequently no ground of action to entitle them to recover upon that count. As to .he d count, he argued that the bank- ruptcy of one partner was not to all purpofes a diffolution of the partnerfhip. But fup- pofing it were, and that tht afiignees became entitled to an undivided moiety, they fhould in that cafe have declared as the afiignees of Ridgate only, not ar. the joint afiignees of both the partners. But even in that fhape, the action could not have been maintained ; for then the afiignees and the folvent partner would have been tenants in common, and trover Rfe6t& &c. 199 trover or detinue does not lie by one tenant in common of chattels perfonal againft ano- ther. Litt.Jett. 323. Therefore the plain- tiffs had no title to recover. Lord Mansfield. The Tingle queftion is, Whether the aft of the folvent trader for a valuable confideration, is good, after an act of bankruptcy committed by his partner, with- out his knowledge, and without the lead co- lour or mixture of fraud. Whether the af- fignees can, in fuch,a cafe, come againft the bond fide confignee of the folvent partner, to recover the value of the goods configned. The aflignees ftand in the place of the bank- rupt, and can in no cafe be in a better fitua- tion than the bankrupt himfelf would have been in, under the fame circumftances. Sup- pofe in this cafe, the partnerfhip had been diflblved, and the tobacco had been in the pofleffion of Barnes, what action could Rid- gate have had againft theie goods fpecifically ? Would he have been entitled to any thing but the balance of the account ? Cur. advifare vult. Afterwards Lord Mansfield, having flared the cafe (ut antea) delivered the opinion of the Court as follows ; O4 The 2co partnetfljfp— The queftion for the opinion of the Court is a general one : whether affignees, under a joint commiffion againfl two partners, taken out after the bankruptcy of both, can main- tain an action of trover againfl: a perfon in potTefilon of goods, under a fale or confign- ment bondjide, for a valuable confederation, and without any mixture of fraud, from one of the partners, who had not then committed any aft of bankruptcy himfclf, but after an act of bankruptcy committed by the other partner. An act of bankruptcy by one partner, is to many purpofes a diflblution of the partner- fhip, by virtue of the relation in the ftatutes, which avoid all the acts of a bankrupt from the day of his bankruptcy ; and from the neccflity of the thing, ail his property being, vefted in the affignees, who cannot carry on a trade. In the cafe of Hague v. Seatt, Hit. 8 Geo. 3. B. R. cited by Mr. Wallace and Mr. Butler, it was held, that the ftatuies concerning bank- rupts made an intire, not a partial avoidance of the bankrupt's acts, as well in refpect of his partner's moiety, as his own. But no cafe has been cited, where a fecret act of bank- ruptcy ruptcy by one partner, has been held to avoid an honeft conveyance of partnerfhip effects by the other. Each has a power fingly to difpofe of the whole of the partnerfhip effects. There are no words in the ftatute exprefs- ly applicable to this cafe : and there is great re alb n why they fhould be avoided. If part- ners diflblve their partnerfhip, they who deal with either, without notice of fuch diffolution, have a right againft both. After a diffolu- tion by agreement, by an execution, or by a bankruptcy, the partner out of poffeffion of the partnerfhip effects, has the fame lien on any new goods bought in, which he had up- on the old. But fuppofing that a fecret act of bankruptcy of one partner is a compleat diffolution of the partnerfhip, and that from that moment the aflignees and the folvent partner are to be confidered as tenants in common of the partnerfhip effects; the ques- tion will ftill remain, whether the plaintiffs have any right to recover in this action. This leads me to confider what right in law and juftice one partner has againft ano- ther, after a diffolution of the partnerfhip.— It clearly is not to change the poffeffion, or to make 202 pattncrdjip— make an actual divifion of fpecific efFecls. One partner may be a creditor of the partner- Jhip to ten times the value of all the effe&s. The other partner in that cafe can only have a right to an account of the partnerfhip, and to the balance due to him, if any, on that ac- count. No perfon deriving under the part- ner can be in a better condition. His execu- tor ftands exactly in the fame light. It is the very text of Littleton. In Jeft. 321. he fays, " If there be two tenants in common " of a perfonal chattel, and one dies, the ex- * c ecutors (hall hold and occupy with the fur- pattncrOjip— " in trr.de and one of them buy goods *' for them both, and the other dieth, the fur- " vivor may be charged by indebitatus affump- " jit generally without taking notice of the " partnership or that the other is dead, and he *' furvived/' In that cafe the defendant was the Surviving partner, but that makes no difference, for the reafoning applies equally to this cafe. With refpect to the other ob- jection ; it appears that the defendant has received a fum of money partly on the plain- tiff's account, and partly on the partnerfhip account, the former of which he wrongfully carried to the partnerfhip account, but that being his own act, and it being againft the truth and juftice of the cafe, I am of opinion that he ought not to be permitted to let up the partnerfhip as a defence to this action. Suppofwg that the plaintiff had received this money he would have been entitled to have Jet apart for his feparate ufe the whole fum, except that part which belonged to the part- nership account: then the circumftance of the defendant's having received it cannot alter the right. Rule difcharged. o" And with fuch fcrupulous exact nefs do we find the rights cf partners maintained upon upon all occafions in this country^ that even a merchant-partner who has a feat in parlia- ment fhali not be fuffered to fhelter hirrrfelf under the privilege of Parliament. For, by an order of the Houfe of Commons, with refpect to partnerfnips, made on the 16th of November J 722, it was refolved, that no co-partner in any trade or undertaking, h entitled to the privilege of Parliament. Sir George Cafwell {landing up in his place, and acquainting the Houfe that he was wil- ling to wave his privilege in the caufe, wherein he was one of the defendants, de- pending in the court of Chancery, between him and Alexander Urquhart, Efq; member of that Koufe, whole petition was referred to the Committee of Privileges, to enquire whether Mr. Urquhart would wave his pri- vilege; and Mr. Urquhart declaring that he would not infill on his privilege, it was or- dered, fC That the Committee of Privileges be difcharged from proceeding on the peti- tion of Alexander Urquhart, Efq; complain- ing of Sir George CafwelVs infilling upon the privilege of this Houfe, as he is co-partner with 'Jacob Sawbridge and Elias Turner." Whereupon it was refolved and declared, nemine ccntradicente, " That no co partner in any 222 pattnerfljfp— any trade or undertaking, is entitled to the privilege of this Houfe, in refpecl of any matter relating to fuch partnerlhip" Y. Thus having endeavoured to trace the rights of partners as between themfelves, I ihall next proceed to enquire how far they are implicated in each other's wrongs ? y Veneris, i6 November 1722. 2^3 CHAPTER IX. i>otu far partners ate to U tonfi* BereH 83 participes criminis, 0? fits otijertDffe implicated fn (K&ontys Hone ftp eac& otijer. AS probity and fair dealing are among the chief requifites in all partnerfhip tranfactions, and as the partnerfhip contract: itfelfis founded on the very bafis of recipro- cal advantage, and mutual benefit, the moral obligation between the parties muft hang in an even balance ; confequently the only mode to preferve that balance is, for each individual to abftain from doing wrong in any matter relating to their joint concerns, becaufe if either of them fhouid engage in transactions of trade not confident wirh this rule; as for example, if he fhouid be guilty of trading on the joint account in contraband goods, or in any manner prohibited by law, the reft of the partners muft be confidered more or lefs implicated in fuch join: trans- action. And 224 pni'tnctdjip— And fince partncrfhip is a contract invent- ed by the Law of Nations a , for the advance- ment, and oftentimes for the protection of fair and open trade; the judges of our courts in this country would not fuffer an action to be maintained by feveral partners for goods fold by one of them living in Guernfey, and packed by. him in a particular manner for the purpofe of fmuggling, though the other part- ners who refided in England, knew nothing of the fale ; for it is a contract by fubjects of this country, made in contravention of the laws: and fuch a cafe mufi: be confidered in the fame light with refpect to the whole firm as if all the partners had lived in England : And the place where the contract of fale was made, did not alter the nature of the con- tract, fo as to prevent the law from attaching upon it as contraband, and therefore not pro- per to be enforced or affirmed. Thus in the cafe of Bi?z* arid others v. Lawrence ° , where upon a rule to mew caufe why there fnould not be a new trial, in a caufe tried before Bailer J. in Cornwall-, the learned Judge reported that this was an action a Societas contra 3us juris gentium confenfu conjlans. Infl;- 3. :6. P r. b 1 Term Rep. 454. for Otlrottg0, &c. ih$ fer goods fold and delivered, brought by four partners, plaintiffs, three of whom lived in England, and the other in Guernjey. The de- fendant, who lived in Cornwall, fent an order for fome brandy to the partner living in Guemjvy, which he directed to be delivered to one Wood, the captain of a fmuggling vef- fel. Some of it was delivered at Guernjey, other part of it at fea. It was all put, by the partner at Guernjey, into half ankers, and ready flung for the purpofe of fmuggling i but it was to be brought into England at the rifk of the defendant. The contract was made, and the goods delivered, without the privity or perfonal participation of the three partners refiding in England. Two objections were made at the trial by the de- fendant's counfel ; ift. That Wood's hand- writing, acknowledging the receipt of the goods, was not fufficient to charge the de- fendant, but that Wood himfelf ought to have been called : but as it was eftabliflied that Wood was the defendant's agent for this pur- pofe, the goods being directed to be delivered to him, Mr. Juftice Butter thought that any acknowledgement under his hand was evi- dence againft his principal, as much as if it had been an acknowledgement in the hand- writing of the defendant himfelf. sdly. It Q^ was 226 S^flttnattpr- was objected;' that the plaintiffs could- not re- cover, becatife it appeared by their own mew- ing, that the goods were intended to be fmug- gled into England, of the laws of which, they,, as fubjects of the Crown of Great Britain* were bound 10 take notice, and that one of them had 1 actually aiTilled in - the very act of Smuggling: and the learned Judge being of that opinion, nonfuited the plaintiffs, hai&irence S'ejreant, againfc the rule, ■ {lopped by the Court. Gibbs, centra,, admitted that the queftion mud be considered as if all the plaintiffs lived in England, hir. contended that they were en- titled to recover the value of the goods, be- caufe the contract of fale, and the delivery of the goods, were completed at Guemfey, where fuch a contract was not illegal : and the goods being afterwards fmuggled into Eng- land will not defeat: the plaintiff's right, which accrued on the delivery of them, as thev were not conce/ned in the fubfequent act of fmuggling j even though they knew at the time that the defendant intended it. The cafe of He-man v. John/on^ expreisly decides this point, which was fully difcuffed both at ■- Cowp. 3^.1. the the bar and on the bench : and that cafe has been acted upon as law ever fince. Now that cannot be diftinguifhed from the prefent cafe upon any of the principles on which it was decided. In both, the contract was com- pleted abroad, and the vendor knew that the goods were to be fmuggled into England*** But even fuppofing that a contract for the fale of goods was made in England, and the delivery of the goods here ; there is no au- thority to (hew that the vendor cannot reco- ver the price, on account of any illegal ufe which the vendee may afterwards make of them : and yet innumerable inftances mud have occurred, wherein fuch a defence might have been fet up in point of fact. If the fum which the vendor was to receive depended on the fubfequent illegal act, or if the vendee, by his contract, were obliged to make an illegal ufe of the goods, that might make a difference. But here the contract was com- pleted before any illegal ufe was made of the goods. On the contrary there are analogous d It mould feem from the manner in which thecafe of Holman v. John/on is reported, that one of the plaintiffs was a fubjecl of this country, though relident at Dunkirk ; for one of them is Hated to be refident at, the other a native of Dunkirk: but no ftrefs is laid on that circum- ftance. Q^ 2 ' cafes 2i8 pnitnalljip— cafes in which it has been held, that the ori- ginal contract is not affected by the fobic- quent ufe made of the thing contracted for, if it be optional in the party to apply it after- wards to what purpofe hepleafes. As if one lend money to another to game with, al- though gaming be illegal, yet it hath been held that fueh money may be recovered by the lender, although it be lent at the time and place of play e . For the ftatute 9 Ann. c. 14. /. 1. only annuls the fccurity, and not the iontraft. So in the cafe of Petrie v. Hannay f, it was objected thai, as the plaintiff knew of the il- legality of the tranfaction, they ought not to recover j but the Court thought that did not affect the contract, with refpect to the rights of the party who advanced the money by the direction of the defendant. In no initances have objections of this fort prevailed, unlefs where the plaintiffs were themfelves parties to the illegal act, which cannot be faid to be the cafe here ; for before the goods were at- tempted to be fmuggled into England, the contract of fale was entirely completed. e Robinfon. v. Bland, 2 Burr. 1077. * 3 Terra Rep. 418. Lord Lord Kenyan Ch. J. — IT the decifion of this cafe had the lead tendency to overturn Chat of Ho hi an v. John/on, I fhould certainly paufe a little, before I gave any opinion, which might (hake it. But I with to leave the authority of that cafe unqueftioned, be- caufe I approve of it. To the cafe of Robin- Jon v. Bland I alfo give my aflent. The for- mer of thofe cafes was a contract entered into by foreigners bound by no allegiance to this country : and the latter was a contract made in Trance, which, being warranted both by the laws of that country and this, was car- ried into execution here. But in this cafe it is admitted, and the plaintiff's counfel was obliged to make the admiflion, that this muft be confidered as a contract made in Emland. But it has been infixed that no adjudged cafe is to be found, in which it has been deter- mined that perfons, (landing in the iituation of thefe plaintiffs, fliall not recover. But fimilar cafes have frequently occurred at Nifi Prius-, and the reafon why no folemn deci- fions are to be met with on the fubject is, becaufe the Nifi Prius determinations were thought too clear to be queftioned. Where a contract; is made for fmuggled goods, a party cannot come into a Court of Juftice to -recover on it. A perfon fuing in a Court of Q-. 3 Law, 230 partncrftfp— Law, muft difclofc a fair tranfaction : and it muft not appear, from his own Chewing at lead, that he has infringed the laws of his country. Now here, three of the plaintiffs lived in England; and it is clear that they knew cither perfonally, or (which is the fame ) by their agent, the other partner living at Guern- Jey, that the contract, which they had entered into, was made in direct contravention of the laws of their country j for the goods came under more than fufpicious circumftances, lince they were fent in flings and half ankers, ready for fmuggling: and it requires much argument to convince me that a contract , thus made can be carried into execution in England. There is no dittum in favor of the plaintiff's right of action j and the whole firing of cafes by analogy is againft it. There- . fore I am of opinion that the non-fuit ought to Hand. AJhhurft J. — I form my opinion on this cir- cumstance, that three of the plaintiffs lived in England-, and therefore though the partner, ■with whom the contract was made, lived abroad, this cafe muft be confidered in the fame light as if all the partners lived here. It is not neceffary to determine whether a per- fon who fells goods in England^ which are af- terwards itcrwards to be applied to an illegal purpofe,, -■can recover che price of them here. For in this cafe the goods were fold and delivered, not in England^ but in Quernfey> and packed too in fuch a manner as to ihew that they were intended for the purpofe of fn\ygglirig'. The plaintiffs were agents to the very act of fmug- -glingj were partt apes.crimims, and therefore cannot avail them lei ves of the law's of this country in order to enforce a contract made an direct o.ppofition to them. B tiller J. — This cafe muft be confidered .as if ic were a contract made between the .plaintiffs and the defendant, all refiding in this country, for the delivery of goods in Guentfey, for the purpofe of fmuggling them into England. And I ufe the latter exprefiion, ibecaufe it is clear, from the manner in which they were packed at the time when they were •delivered, that they were intended to be fmug- .gled: that was the act of the plaintiffs. And I cannot fay in a court of jufdee that the plantiffs, {o offending againft the law of the land, mall be permitted to recover on fuch a contract. None of ihe cafes cited apply to the prefent. That of Halnian v. John/on went on the ground of the plaintiffs being •foreigners, which materially diftinguifhes it from this ^ becaufe the fubjects of one coun- ty 4 cr y 232 partnctfljfp— try refiding there are not bound to take no- tice of the revenue laws of any other. That maxim hath been long fince adopted here, and recognized by Lord Mansfield in Holman v. John/on. But this is the cafe of one the king's fubjects making a contract directly againft the ftatute laws of this country. Nei- ther has the cafe of Petrie v. Hannay any re- lation to the prefent : here the contract on ■which the action is founded is illegal ; which was not fo there. And in order to make this cafe like that, it is necefifary to fhew, that thefe plaintiffs were not concerned in the ori- ginal tranfaction, but afterwards paid money for the ufe of the defendant, which they wifhed to recover back j for there the money was paid to a perfon, who was not a partner in the original tranfaction; and the action was founded on the fubfequent contract, and not on the flock-jobbing tranfaction. Grofe J. of the fame opinion, Mr. J. Buller then faid, that another ob- jection had been made at the trial, that the plaintiffs ought not to be non-fuited, and that it mould have been left to the jury to confi- der whether the plaintiffs knew the goods were to be fmuggled j but that he had been of of opinion that, as the counfcl on both fiJes had fully argued the queflion of law on the admiflion of facts> the plaintiffs ought not to be at liberty to go to the jury on the fame facts, when they found his opinion againfl them in point of law j to which the Court a fie n ted. Rule difcharged. But if two perfons jointly engage in a (lock- jobbing tranfaction, and incur loffes, and em- ploy a broker to pay the differences, and one of them repay the broker with the privity and confent of the other the whole fum, he may recover a moiety from that other in an adion for money paid to his xa^j notwith- flanding the 7 Geo. 1. c. 8. Thus in the cafe of Petrie v. HannayZ, which was cited in the foregoing, and is reported as follows ; viz. In the year 1773 the teftator, Sadfier, Pe* trie, and the defendant, were engaged toge- ther in flock fpeculations on their joint ac- count to a confiderable amount, the whole of which were illegal, except a transfer of a fum of 10,000 /, Having incurred feveral lofTes, on the 8th of January 1774 they came to a fettlement with Pcrtis their broker, who had paid all the differences. And on that occa- fion S 3 Term Rep. 418. 234 pattiicrfijip- fion Keebk repaid to Port is the whole rum which had been Co advanced by him, except S 1 1 /. which was part of rhe defendant's fhare of the loffes, and for which Keeble drew a bill on him in favour of Port is, which the de- fendant accepted. This bill not being paid by the defendant when it became due, Portis brought an action thereon, after Keeble's death, againft the prefent plaintiffs his executors, and recovered the amount, no defence being fet up on account of the illegality of the tranf-r aclion. £.264 part of the fum for which the defendant had given his acceptance, was his fhare of the lofs arifing from the real transfer of the io,cco/. The prefent action v/as brought to reimburfe the plaintiffs the fum recovered againft them by Portis, and the declaration was for money paid by the plain- tiffs to the defendant's ufe; upon which they obtained a verdict for the whole demand, at the Sittings after laft £#/?,?/•- Term, at Guildhall, before Lord Kenyon. A rule was obtained lafl; term to fhew caufe why the verdict fhould not be Cet afide in toto t or at leaft be reduced to the fum of 264/. Bearcrofty Mingay, and RuJJill, now (hewed caufe -, contending that this cafe did not fall within the ftatute 7 Geo. II. c, 8. for prevent- in£ HOronrjjgf, &c. 235 jng (lock-jobbing, as this was not an action to recover any money " for the compound- " ing, fatisfying, or making up, any dif- " ference for the not delivering, transferring, " having, or receiving any (lock, &c. or " for the not performing any contract or in whole favour it was drawn, that fum, on ac- count of the very differences prohibited to be recovered by the act. If So, no fubiequent tranfaclion to which the defendant was not a party, can vary the cafe as to him. With re- gard to the fum of 264 /. that is fo involved in the illegal t ran fact ion, that it cannot be Se- parated from it : ic was a mere temporary expedient, expedient, auxiliary to the general flock- jobbing fcheme. Lord Kenycn Ch. J. — As to the laft point made in the argument, relative to the 264/. I have no doubt whatever. It appeared to be a fair tranfactionj the flock was actually purchafed, and the transfer of it was made : none of the provifions of the act were there- by infringed; and it is too much to fay that, becaufe it was accompanied by other tranf- actions at the fame time, which were invalid, this fhall not be binding. But, on the prin- cipal, I have not formed fo decifive an opi- nion but that I may be open to conviction hereafter : at prefent I can only fay that I have not heard any argument to convince me that the plaintiff's demand can be en- forced. The great difficulty is to diftinguifh this cafe from that of Faikney v. Reynous-, but that does not at prefent appear to me to con- clude this queflion. That was an action on a bond j and the whole argument at the bar, and the decifion of the Court, proceeded on the ground that they could not take into consi- deration matter which was not properly in- troduced by the plea. And they thought, that as nothing illegal, as between thofe par- ties, was difolofed on the record, the pay- men: s 4 o pnttnei'lijfp— ment of the money could not be refilled* But this is not the cafe of a bond. And if we confider this Cafe a priori on the ground of policy, and recollect the infinite mifchiefs brought on individuals by means of flock- jobbing, which this act was intended to pre- vent, it is very much to be wifhed that the remedies offered by the Legiflature fliould extend to the whole mifchief. Now I do not fee how that can be done fo effectually as by laving that no perfon, who is concerned in iuch a tranfaction, fhall recover any de- mand arifing out of it in a Court of Law. The firfl: action, which was brought againfc thefe plaintiffs, was on a bill of exchange, which had been accepted by the defendant on account of the lodes: Now it is clear that that action did not merge the original de- mand, and the whole tranfaction may ftill be brought before the Court. And if it appear to the Court that a bill of exchange is given without any confederation, it is nudum pafium ex quo mn oritur afiio; or if for an illegal confederation, the whole matter may be exa- mined. But in the cafe of a bond, the con- federation cannot always be gone into; as in the inftance of a voluntary bond. In this cafe the teftator and the defendant were part- ners in an illegal tranfaction, in which Forth the the broker acted as agent, knowing it to be contrary to law, fince every man is bound to take notice of public laws. Now it is a rule that thofe, who come into a Court of Juftice to feek redrefs, muft come with clean hands, and muft difclofe a tranfaction warranted by law. And I cannot diftinguifh this cafe from that of fmuggling, put at the bar, where if one of two parties advance money in a fmug-* gling tranfaction, he cannot recover his pro- portion of it againft his partner, becaufe the tranfaction is prohibited j and yet fmuggling is not malum in/e, as contradiftinguifhed from malum prohibitum. If this tranfaction had been difclofed in the former action, Portis could not have recovered : now fuppofing the bill of exchange puts the plaintiffs in his filuation, they are not aflifted by it $ or.con- fidering them on the other hand ftanding in their own fituation, unconnected with Portis^ they then appear as partners in a matter pro- hibited by the laws of the country, and can- not therefore have recourfe to thofe laws to enforce their contract. But at prefent I fpeak with great diffidence; and I (hall be * glad to correct this opinion, ifonre-confider- ation I find I am miftaken. I wifh however to have it underftood that I do not mean to difturb the cafe of Faikney v. Reynous> there R the rhe Court did not think their, ftlves war- ranted in faying that fafficient was difclofed on the re-cord to bring the cafe. within the ftatutc: but here the whole tranfaclion may be enquired into, which, on examination, 13 I think prohibited by that act. yl/JohurJi. J . — Whatever my opinion might; have been, if this had been res Integra, I think that this cafe muft be governed by that of Fatkney v. Reyncus. And if we were fo determine that the plaintiffs are not en- titled to recover in this action, we muft overturn the authority of that cafe. The Court did not proceed in that cafe on the. ground that it was an action on the bond, and that the defendants were not at liberty to go into the confideration of it; for they per- mitted a difcuffion of the facts ftated in the plea, and they argued from them : but they faid, that even admitting them to be true, frill it was no defence to the action; and Lord Mansfield and die whole Court pro- ceeded on the ground, that as it was not ma- lum in fie, bv only malum prohibitum - r and as the plainnfi was not concerned in the ufe which the uf/her made oi I re money, it was a fair and honefl tranfaclion as between thofe parties. Now as the Court in that cafr en* tered ©COllffA &c 243 tered into the merits difclofed by the plea, I fee no difference between that cafe and the prefent. And here one of the parties (the teftator), engaged in the tranfaction, paid money to the ufe of the defendant, which was done by paying a bill, which had been drawn by the former, and accepted, though not paid, by the latter: Now that acceptance was an admiffiGn on his part that the other acted with his confent and privity. It is the fame as if the teftator had originally paid this money to the defendant's ufe, with his pri- vity and at his requeft. And if he had made fuch a payment, it being only malum prohibi- tum, and not malum in Je, and the defendant being bound in honor and confcience to re- pay him, I think the plaintiffs would have been entitled to recover. Butter J. — With refpect to the fum of 264/. that point is too clear to admit of any doubt. But in order to confider the great queftion in the cafe, whether the plaintiffs are entitled to recover the large fum under the circum fiances which are difclofed, jt is neceffary to trace this tranfaction to its ori- gin. For it very much depends on the light in which this queftion muft have been con- fidered, if Portis had been the plaintiff. Al- R 2 though 244 partnsrdjfp-^ though much evidence was given at the trial of the different traniactions between thefe parties as far back as the year 1773, I think iufneient is dated to warrant the Court in. drawing this inference, that the defendant confente.d and requeued Partis to pay the differences in the flocks-. And here I agree, that, in the cafe of an illegal traifaclion, if one perfon pay money for another without: an exprefs authority, he cannot recover id back* For there is a* Lord Mansfield was clear that the matter contained in this plea is no defence againft the action brought upon this bond. The offence relied upon as furnifhing a ground of defence againft being liable to pay it, is not malum in fe : it is only -prohibited by this aft of Parlia- ment. He mentioned a cafe of one Hales, a broker, (before himfelf at NiftPrius at Guild* hall), where a refcounter contract, prohibited tinder a penalty by the ftock-jobbing aft 7 G„ 2. c. 8. was held to be void ; and that the plaintiff could not recover thereupon. But here, one of thefe two perfons had paid mo- ney for the other, and upon his account j and he gives him his bond to fecure the re-payment of it. This is not prohibited. He is not concerned in the ufe which the other makes of the money : he may apply it as he thinks proper. But, certainly, this is a fair, honeft tranfaftion between thefe two. if money be km h &c. 25 J lent in order to pay a play -debt, (fuppofing the lender not to have been prefent at the time and place of the play); or in order to- pay off an tifurious contract, or even to lend out money upon ufury j and a bond be given for ffcuring the re-payment of the money fo lent ; fuch a bond will not be void r the obli- gor will be bound to pay it. Its being volun- tary is not, of itfelf, an objection to his being liable to the payment of it: it is a good bond, unlefs ibmething appears to render ic other wife. The three other Judges concurred, that this bond was not within the act of Parliament,- nor did it appear to have been given upon any illegal consideration ; and that the plea was no defence againft the payment of it * and therefore that it remains a good bond upon the face of it, till the obligor can fhew that it is bad. They obferved, that paying money to compound thefe differences was not a malum inje -, but only flood prohibited by this act; which neither fays or means to invalidate all fecurities relating to it, (as the act againft excefiive gaming does) : it only prohibits paying or receiving money for compounding differences. This is not a bond for payment of the compofition-money to the perfons Faikney and 254 IM'tlttCdjft) - and Richard/on had covifaoled with ; but a bond for Rkhardforis paying to Faihiey a debt for the public revenue is thereby leflfened, the fair trader injured, the nation itfelf imppveriflied, rival and perhaps hoflile ftates enriched, and the perfons them- fclves who are accuuomed to this fort of wrong. G£ltong& &c. 25^ wrong, being hardened by a courfe of difo- bedience to, and defiance of the law, become at length fo abandoned and daring, as not to hefitate at committing the greatelt outrages; and if a partner in trade fhould be guilty of fuch wrong, without the privity or confent of his co-partner, it would be a violation of thar faith and confidence which is (o effential to partnership, even though the profpect of gain were ever fo confiderable without the hazard of a difcovery ; and if all the partners mould knowingly engage in fuch illicit trade, they mud be guilty of a breach of that law of na- tions by which the partnerfhip contract was invented for the advancement and protection of fair and open trade. i\nd whether fuch illicit trade be engaged in by an individual « partner on the joint concern, or whether the whole firm happen to be prefent during the tranfaction, makes but little difference, for it has been decided often that in fmuggling tranfaclions all concerned mud be confidered as farticipes crimwis, and partners are equally implicated in fuch wrongs. By the ftatute 2°Jmi^ 3 the penalty is treble the value, for goods that come to the hands of any one, knowing they had not paid the duties. And it feems to be eflablifhed under this 256 ISattnetfljfp— this acl 1 , that if one of feveral partners is con- cerned in fmuggling on account of the co- partnerfbip trade, the Crown may come againft any one of the partners for the whole penalty, it being in the nature of a tort, and not of a contract m j juft as in cafes of tort a fubjeCL might come upon any one concerned in the tort. So it is where feveral perfons are concerned in an a 61 of this nature, though not al together when the a 61 is done, yet every one may be profecuted for the penalty feparately ; though at the fame time the Kins; can have but one fatisfacYion. Thus we find judgment was given by the whole Court in the cafe of the King againft Richard Manning™. This was an information by the Attorney General againft the defend- ant, for that merchants unknown having im- ported 100 weight of tea, value 50/. and landed them in the port of London, the duties not paid or fecured, the faid tea came to the hands and poffeffion of the defendant, know- ing the duties not to be paid or fecured ; whereby he forfeited 150/. the treble value. The defendant pleads non devenerunt ; and on 1 Stat. 8 Ann. m Bunb. 293. n Comyn's Rep. 616. 4 trial tKHroii0& &c. 257 a trial before Chief Baron Reynolds, a fpecial verdict was found, That the ioo weight of tea was imported and landed, the duties not paid; that Thomas Quoif and the defendant, who knew that the duties were not paid or fecured, bought the tea for 20/. on their joint account, of one Samuel Gibr on, of Ajloburnham in Sujfsx, privately, but only a third of the money was paid by the defendant ; that they afterwards carried it to Cudham in Kent, and there divided it into twelve parcels, and brought it on horfes in facks to a place near London, and thence carried it into London, by night, under their coats, to an inn in White- chapel, where, by the defendant's direction, it was put under a bed, on which the defend- ant laid himfelf down, whilfb Thomas Quoif went out to fee for a purchafer, to whom they fold it for 24 /. and the defendant had 8 /. the third part of that price, for his pro- portion of the tea. That the value of the tea was 24 /. the treble value 72/.; and whether the whole IOO lb. of tea came to the defendant's poiTef- fion they fubmit to the judgment of the Court; and if the Court be of opinion that the 100 lb. of tea did come to the poffeiTion of the defendant, they find fo j but if the S " Court 258 pmtuetfljfp- Gourt think that only a third part of it cams- to his hands, they find that a third only came to his pollefiion, By the flatute 8 Anna, c. 7. / 17. if any goods whatever liable to the payment of du- ties fhall be unfhipped with intent to be laid on land, (the cuftoms and other duties not being firft paid or fecured) or if any prohibit- ed goods fhall be imported, not only the goods fhall be forfeit, but alfo the perfons af- fixing or otherwife concerned in the unfhip- ping thereof, or to whofe hands the fame fhall knowingly come after the unfhipping, fhall forfeit treble the value thereof. And it was infifled by Mr. Strange, Solicitor General, that the treble value of the whole 100 weight of tea was forfeit; for the de- fendant and Quoif having bought the tea on their joint accounts, the defendant had the \ polTeffion of the whole, and partners in a wrong are anfwerable for the wholes and cited a cafe Mic. 17 21. Doe v. Butlar, on a devenerunt, where it was faid, That the de- fendant having carried away for his fhare but four anchors of the 320 gallons of brandy and 200 gallons of wine, charged in the informa- tion, ought to be charged with no more than what ©Hcong^, &c. 359 what he carried away j but by Montague Chief Baron, as the defendant was prefcnt when the whole quantity came on fhore, he was liable for all, it not being material what he carried offhimfelf; and a verdict was for the King for the whole. So in Michaelmas 1726. The Attorney General v. Ambro. Burgefs , on a devenerunt for 3000 lb. of tea, and 200 lb. of coffee, it ap- peared that the defendant had feveral part- ners in the goods, and that all did not come to the defendant's own hands j but Pengelly, Chief Baron — As there appeared no diftri- bution to be made between the partners* and they having a joint property* the poffef- fion of the perfons to whofe hands the goods came was the porTefiion of the defendant j and when feveral perfons are concerned in a fact of this nature, though they are not all toge- ther when the fact is committed, every one may be profecuted for the penalty feparately j that the receiving of the goods by the de- fendant's agents after the landing, was fuffi- cient to charge the defendant j and as all the partners acted their parts, they were agents for one another, and all chargeable. That Where feveral were concerned in taking goodsi Bunb. 223. S 2 trovesr 260 partnerfljip- trover lay againft any one j and the King had a verdict for the whole quantity. So in the cafes, The Attorney General v. John Palmer j in Pafcb. 1727. The Attorney General v. Edward Car- held, Hit. 1732. The Attorney General v. Sweeting, in Pafch. 1727. The Court took time to confider thofe cafes, and after fome days confideration, I was of opinion for the King, but not merely becaufe the goods were bought on their joint account, for though joint-tenants font feifie per my et per tout, yet to divers purpofes each hath but a right to a moiety, as to in- feofF, give or demife, to forfeit or lofe by default. Co. Lit. 180. a. If two pur- chafe, and one is a villain, the lord can enter but into a moiety, or if one be an alien, the King, on office found, ftiall have but a moietv. If one joint-tenant be indebt- ed to thf King, but a moiety (hall be ex- tended i and if he die before any extent, no P Bunb. 223. (In N. ) extent CSItontj^&c 2 6i extent fhall be made on the land in the hands of the furvivor. Co. Lit. 185. a. If A. B. and C. are partners, and judgment and execution is fued againft A. only his (hare of the goods can be fold. It is true, the fheriff may feize the whole, becaufe the fhare of each being undivided cannot be known ; and if he feize more than a third part, he can only fell a third of what is feized, for B. and C. have an equal intereft with A. in the goods feized s but the (herifF can only fell the part of him againft whom the judgment and exe- cution was fued. So it was refolved by Holt and the Court, Heydon and Heydcn, Mich. 5 W, & M q . So it was holden per Holt r , and no Judge denied it ; and Polkxfens opinion accords. And in that cafe Backhurft and Clinkardy 1 Show. 174. when a Jcire facias iffued againft B. after the feizure of all the partnership goods upon the judgment and ex- ecution againft A. and the iheriff returned nulla bona y it was holden a falfe return ; for B. had a fhare of the goods, and the pofTeflion q 1 Salic. 392. Holt 302. S. C. 1 Show. 174. Comyns 277. 626. 1 Holt 643. S.C. 2 Ld. Raym. 871. 1 Show. 174. S 3 continued 262 ipactnecfljip — continued in him, notwithstanding the feizure upon the execution againft A, But for the more explicit declarations of the grounds of my opinion, 1 do agree, firft, That where feveral perfons are engaged in a tortious act, all prefent and aiding and affift- ing in it are equally culpable, and liable to anfwer for the whole of the mifchief done ; and that where they are parties in the acl, though not perhaps prefent at that particular branch of it for which he is charged. It is fo in cafe of a robbery, burglary or other fe- lony ■ ; and therefore if A. and B, engage in a robbery or burglary, and A. (lands to watch, while B. breaks open and robs the houfe, or while B. purfues and robs a perfon out of his fight, and if B. kills the man, A. is guilty of the murder. So it is if feveral come to do a trefpafs, to make an affray, rob a park, plun- der a fhip, or run prohibited or uncuftomed goods, all engaged in the fact are chargeable with the whole doings, and all the confe- quences of it, if murder be committed by any of the company, though the reft were in other rooms, in other parts of the park, or know not what goods were taken or carried off by others, they are equally guilty ; for in s Foil, 350. the anroitrjs, arc. 263 "die eye of the law they were all prefent aid- ing and affifting; and therefore if the defend- ant had been found guilty of aiding or affift- ing, or otherwife concerned in unfhipping the tea, I mould make no queftion but that he would have been liable to the penalty of the treble value far what he or any others at that time carried off, for they were all aiding, af- fifting, and concurring in the fame tortious aft. And this is what was determined in the cafes cited. In the cafe of Doe and Butlar, the Chief Baron Montague faith, The defend- ant was.prefent when the whole came on fhore, •therefore it was not material what he carried offi So was the determination by Chief Baron Pengelly, in the cafe of the Attorney General and Burge/s. All the partners acted their parts, and were agents one for another, and all chargeable. It is faid indeed before, the partners hav- ing a joint property, the -pefleflion of the per- fons to whofe hands the goods came was the ■pofleflion of the defendant j but this cannot be meant of a joint property by purchafe, but S 4 where 264 partneeiljfp— where feveral perfons are parties in the tort. In running the goods into other hands, the poflcffion of thofe into whofe hands the goods came is the pofleflion of the defendant, who was a party in the running of them, though he was not the particular perfon who brought the goods to the hand in which they were found; for fo it is, added he, where feveral perfons were concerned in a fact of this na- ture, though not all together when the fact is committed, yet every one may be profecuted for the penalty feparately £ . This, or fimilar to this, muft be the cafe to make all the ex- preflions pertinent and confident, if we have a full and right account of them. So in the cafe of the Attorney General v. F aimer ^ which was on a devenerunt for iooolb. of coffee. It was objected, that the defend- ant being hired with others for carrying the goods in the information, he was chargeable for no more than the two bags which he carried. But it was anfwered by the Chief Baron Tengelly very rightly, that the defendant was a perfon to whofe hands the goods came with- in the nature of the flatute j for as all the * Carth. 171. Dyer 159. b. 160. a. perfons iufllroiigft & c . 265 perfons went together with one intent, the Crown might charge whom they would. All agencs are to be charged, otherwife the act was not made full enough for the benefit of the Crown: and it appeared that the de- fendant had the whole charge of the goods for fome part of the time. A private perfon may bring an action againft any one, where feveral are concerned in taking his goods from him. He remembered an action againft two for ftranding a fhip, v/hen 200 were con- cerned, and a verdict there, and they paid the money. So in the cafe of the Attorney General v. "Edward Carbeld, on a devenerunt y for 6 coo lb. of tea, which it was proved the defendant and others brought from the lea fide at feveral times. It was objected, that the defendant could not be charged with more than the three horfe-loads he carried, fince the defend- ant had not the command of the reft, nor was their mailer. But it was anfwered, Where feveral are concerned in a joint defign, they are all anfwerable, as in cafes of cofts and wrongs. In trefpafs, if feveral take away goods, all are anfwerable for the whole. The lad cafe, the Attorney General and T aimer u , * Bunb. 223. n. was i6S partiwrUifp— ' was cited, that the feveral profecutions there could be but one recovery by the King - y for if fatisfaction was recovered from one for the whole, the others were difcharged : if feve- ral are bound in a bond, all may be fued, but there can be but one fatisfaction. Per Chief Baron Reynolds. Where feveral are jointly concerned, it is a joint under- taking j they are liable for the whole, though the Crown can have but one fatisfaclion : and the King had a verdict for the whole. A cafe was cited, P. 1727, inter The At- torney General and Sweeting, on a devenerunt for 1800 lb. of tea, 100 lb. of cocoa, 1501b. of coffee. Objection. The defendant was not charge- able within the words of the flatutej for he kept a public-houfe, and was not refponfible for the goods brought there by the guefls ; the goods belonged to another, and the de- fendant could not know but by hearfay that the goods were run. o v But Chief Baron Pengelly was of opinion, that fince the act made, not only the import- er, but thofe to whofe hands the goods came after j after, were liable to profecution. The Crown might charge all to whofe hands the goods came after importation j for the firft might not be found, and if other perfons could not be profecuted, the a where feveral are jointly concerned, and it is a joint undertaking, they are all liable for the whole. Secondly, It is agreed, that where run goods come to the hands of any perfon know- ingly, by this ttatute 8 Ann. fuch perfon is made liable to the fame penaky of the treble value, although he is but in the nature of an accelTary in receiving the goods, as well as the principal, who was affifting in the running and unfhipping of the goods. But there is this difference between them - s he who was prefent in helping the goods on more, is a party in the illicit act itfelf, and therefore is chargeable with the whole j but he who re- ceives any part of the goods after they are put on fhore, is not a party to the original act, but is only culpable for what he receives, and confequently can forfeit only the treble value of the goods which came to his hands. And t[BtO\\0y Sec. i6 9 And I believe nobody would think it f> confonant to jultice, that the receiver of a pound of tea or coffee, which had not paid duties, fhould pay the treble value of iccolb. which was run at the fame time, which he knew nothing of. Our law is very cautious in extending puniihment beyond its due pro- portion ; and therefore in trefpafs, maybem t p-temumre, &c. there are no accefiaries ; for acceffaries before, by counfel or command, are in the fame degree as principals; but the accefiaries after, by receiving the oiTender, cannot by law be under any penalty, unlefs the ftatutes which induce the penalty ex- prefsly extend to receivers and comforters, as fome do x . i Hale's Hilt. P. C. 6 13. Thirdly, It is agreed, That if a perfon be hired to carry goods which have not paid duties, knowing the duties unpaid, he is a perfon to whofe hands the goods knowingly come, and confequently liable to the penalty of the treble value, otherwife the ad might be eafily eluded. But there is a difference where a perfon is hired to help to convey the. goods on fbore^ from him, who being prefent, and aiding and x 4 Bl, Com. 36. affi fling a;o paituetOjip— affifting in the unfhipping of the goods, is party in the wrong, and liable as every prin- cipal aclor to anfwer the whole damage. And that was the cafe of the Attorney Ge- neral and P aimer y wherein it was faid, that all the perfons hired went together with one in- tent to carry off the goods. If perfons are hired to pull down a houfe, they are all tref- paiTers. But if a porter be hired to carry a parcel of tea after the importation, which he knows was run, he is a perfon to whofe hands that parcel came within the intent of the ac~b, and will be liable to the treble value of that parcel : but I believe nobody will fay that he is anfwerable for the treble value of the whole cargo. Fourthly, So likewife if a keeper of a public-houfe receives the whole parcel, which any one of his guefts, whom he knows to be a fmuggler, brings to him, and takes it into his poffeilion, and conceals it for him, he is a perfon to whofe hands thofe goods came, and will be chargeable with the penalty of the treble value of what he fo concealed, but not of the goods carried by other perfons to other places. So ffltQl\Q&, &c. 271 So was the cafe of The Attorney General and Sweeting, and many fubfequent deter- minations. Fifthly, So likewife if a perfon buy any quantity of goods which he knows were run, and the cuftoms not paid, he will be charge- able with the treble value of the goods fo bought, for he is a perfon to whofe hands the goods came ; for though it was under the pretence of a contract, yet fince he knew that the cuftoms were unpaid, it was an il- licit contract, and he becomes particeps cri- minis by receiving thefe goods; and the con- tract or purchafe will no more exempt him than if he had bought goods of a pirate or felon, which alters not the properly of them. By the flat. 8 Geo. 3. c. 18. / 10. Foraf- much as perfons ufing clandeftine trade, are greatly encouraged by many for private lu- cre, who buy and receive goods clandeftinely imported; if any fhall buy or receive any goods clandeftinely run or imported before condemned, knowing the fame fo to be clan- deftinely run or imported, forfeits 20/. on conviction before a juftice of the peace. 4 But iy2 partuerfljfp— But fuppofe two perfons join ftock toge- ther, and buy goods on their joint account, and one is conufant that the goods are run, and the other is not, (which was the prefent cafe, for it cannot be intended that Quoif knew the goods were uncustomed, unlefs it had been fo found, for frans non eji praju- menda), I am clearly of opinion that the de- fendant is liable to the treble value, though Quoif is not; but then the queftion will be for what quantity he is liable; and I am of opinion, that if they had divided the goods after their purchafe, that the defendant could be liable, only to the treble value of his fhare, and no more, for no more came to his hand or poffefiion ; for though joint-tenants are feifed or pofTeiTed per my et per tcut> that is, they are fo far poileiTed of the whole that none can fay, till partition made, that this or that part is not in his pofTeliiony, yet they in right and reality are poffefTed of no more than the proper (hare or purparty. As therefore they give or difpofe of no more, fo neither can they forfeit any mores. y Vide infra p. 2 60. * Co, Lit. 1 36. a-. If If a villain and freeman purchafe, the lord is entitled to what his villain is poflefled of, yet he can enter into a moiety only a . So if an alien and natural-born fubjedb pur- chafe, though the heir is entitled to all the alien was feifed or pofiefTed of, yet the heir, on office found, can have but a moiety. The treble value of what comes to the de- fendant's hands is the meafure of his penalty, but that muft be meant of what really and truly comes into his poffefiion, and not what notionally and virtually only can be faid to be in his poffeffion. If partners be of goods, and execution be fued by fieri facias againft one for his fepa- rate debt, the fheriff may feize the whole in order to inventory and appraife them, and to have a true account of the value; but he can fell but the (hare of him againft whom the fieri facias was fued k , for the fieri facias war- rants him to levy de bonis et catailis of the one, and all may in fome fenfe be faid to be his goods, becaufe he hath a joint intereft in all, yet fince he hath a right and pollcffion of a Supra p. 260. * Supra p. 261. T a moiety 274 pattnerfijip— a moiety only, the fheriff can difpofe of no more c . And notv/ithftanding fuch feizure of the ■whole, the other partner continues in pof- fefiion of his (hare or moiety d -, and therefore where A. B. and C. were partners, and upon a fieri facias againft A. the Iheriffhad feized. the whole, and a fieri facias came againft B. and the fheriff returned nulla bena, it was re- folved that an action on the cafe lay againft him for the falfe return, for B. was ftill in pofTefiion of his third part of the goods. However, as this fpecial verdict is found, I think the whole cwt. of tea came to the de- fendant's porTeflion, for it is faid, that he took care of the whole, that by his direction it was put under the bed, and he lay down on the bed; fo that apparently he had at one time the whole under his cuftody and care, and ufed endeavours to conceal it, knowing the whole to be uncuftomed goods. What more does an inn-keeper or alehoufe-keeper do, who takes the goods of a fmuggler to lay up and conceal ? c i Salk. 392. d 1 Show. 74. So OTrongfc &c - 275 So it was determined in the cafe of The Attorney General and Sweetings 1727, and many times fince. A joint-tenant may make his companion his bailiff, and maintain account againft him as fuch. Co. Lit. 186. a. Here Thomas Quoif intrufts the defendant with the goods to conceal and fecure them ; fuppofe he had embezzled them, would he not have been chargeable by his companion for them ? And if fo, he muft have pofieffion of them. It is not neceffary that he to whofe hands goods came mould have the abfolute pofTef- fion in them. If a man delivers money to a fervant to carry, and he is robbed of it, the fervant may maintain an action againft the hundred, and declare that he was pofTefTed ut de bonis Juis propriis* So it was refolved 4 Mod. 303. And yet the poffeffion is not devefted out of the mailer, for he may bring an action if he pleafes e . And although fmuggling be an offence againft the laws," yet ftill may partners in Comb. z63. Holt 37. 12 Mod. 54. S. C. T 2 trade 276 pattnetfljip— trade fubject themfelves not only to the pe- nalty incurred, but alfo make themfelves liable to the bankrupt laws thereby, for per Lord llardwicke " A perfon who has dealt u merely in fmuggling and running of goods, " though this is an offence, and contrary to an ofo fat partners are botmti fit refpefc of Contrast* nffeffefl ftp Ofurp. IT has already been pointed out that in order to make a man liable as a partner there muft either be a contract between him and the oftenfible perfon to fhare jointly in the profits and lofs, or he muft have per- mitted the other to make ufe of his credit, and to hold him out as one jointly anfwer- able with himfelf a. But if a contract be entered into between parties* which is in itfelf immoral, or a violation of the general laws of public policy fuch as being affected by ufury, that does not amount to a partnership contract within the legal principles eftablifhed refpecting joint traders, and the parties themfelves are not legally bound by fuch an unconfcionable bar- gain. For example j If an agreement purporting to be, or af* fuming the fhape of, a partnership in trade, a Cowp. 793. T 3 be 27* laattnecfljfp— be contracted for a fingle dealing, and one of the partners fhall advance a fum of money for the purchafe of particular goods, ftipu- lating at the fame time to have half the pro- fits upon a re-fale of fuch goods, which pro- fits exceed 5 /. per cent, and the principal not rijked y the bargain being unconjcionable^ is faid not to be binding. Thus in the cafe of Jejlcns v. Brooke b; where A. in confideration of advancing 45 /. for which he took the borrower's note of hand, payable on demand, ftipulated to have half of the profits upon a re-fale of certain goods intended to be purchafed by the bor- rower with the money ; two hours after the purchafe, A. demanded payment of the note ; and the fame night put a perfon into porTef- fion jointly for himfelf and the borrower. The neat profits upon a re-fale were 5/. The bargain was held to be unconfcionable ; and therefore A. was not allowed to recover his (hare of the profits in an atlionfor money had and received. This was an acYion for " money bad and re- ceived :" And upon a rule to fliew caufe why *> Cowp. 793. the Contralto &c 279 the verdict obtained for the plaintiff fhould not be fet afide, and a nonfuit entered in its ftead, Lord Mansfield reported as follows : — " The plaintiff and defendant were both bro- kers : the defendant wanted to purchafe a parcel of goods, which had been diftrained for rent, but had no money. He applied therefore to the plaintiff, who on the 12th of November 1777, lent him 45 /. upon his note of hand, payable on demand. At the fame time it was agreed, that the plaintiff fhould have half of the neat profits, which mould be made of the goods upon the re-fale of them, over and above the note of hand. Two hours after the lale, payment of the note of hand was demanded by the plaintiff, in order to force the defendant to fell the whole of the goods to him - 3 and as an inducement, the plaintiff offered him 3 /. profit, which the de- fendant refufed, and fold the goods after for 5 /, profit. The plaintiff paid the 45 /. to the landlord, by the direction of the defend- ant, and put a man into poffeffion on the night of the fale. The note was re-paid on the 2 1 11 of the fame month. This action was brought for 1!. 10 s. the half of the neat pro- fits for which the goods were re- fold. To- T 4 wards wards the end of the caufe, it ftruck me that this contract was ufurious on the part of the plainriff, becaufe he was to have half of the profits, and was to run no rifle. The jury found a verdict for the plaintiff, fubject to the opinion of the court, upon the queftion, whe- ther this contract was ufurious or not ? If the court fhould be of opinion that it was, then the verdict was to be fet afide, and a. nonfuit entered in its Head." Mr. Wallace^ in fupport of the verdict, ar- gued, this was not an ufurious contract, ift, Becaufe there was no certainty upon the ori- ginal agreement of any interell: beyond 5 per cent, but the whole refted in contingency,, upon what would be the neat profits arifing from the re-fale of the goods •> and if there had been no profit at all, the plaintiff would have had no intereft whatever. It is true, a mere colourable contingency will not aid a contract, where by the very terms of the agree- ment ufurious intereft is referved : but in the prefent cafe, it could not be known what the profits of the fale would be : it depended up- on the defendant's meeting with a good pur- chafer, and upon the money being collected in. It might happen that the goods fhould fell at a lofs. The contingency therefore was real. Contrast &c 2 3i real, not colourable only ; confequently not within the flatute. ad, To make a contract ufurious, illegal interefl mud be referved by the very terms of the contract : whereas, in this cafe, the note of hand given by the de- fendant bore no interefl at all. Therefore he prayed the rule might be difcharged. Mr. Howarth, contra, in fupport of the rule infifled. that the tranfa&ion was clearly ufuri- ous. All that is effential to make a contrail: ufurious, is, that it fhould be for a loan, with a refervation of more than $ per cent, interefl, for forbearance of the principal. Here, the principal was fecured by a note of hand, pay- able on demand ; confequently the plaintiff run no rifle In addition to this, the piaintifF at the fame time flipulates for half of the neat profits upon a re-fale of the goods ; which it appears, far exceeded the rate of legal interefl. It is material too in this cafe, that the plain- tiff who had viewed the goods, mufl, from his occupation, neceffarily have known what they were fairly worth. If the contract is a loan, and the intention is to get more than le- gal interefl, no fhift or contrivance can take it out of the ftatute* A contract is not lefs ufurious, becaufe no interefl is referved upon the fum advanced : If fomething alfo, as a korfe. 28a ipattttetfljfp— horfe, Sec. the value of which exceeds the le- gal me of intereft, is fiibftituted in its fie ad. Therefore he prayed a nonfuit might be en- tered. Lord Mansfield. — This is an action for mo- ney had and received ; and therefore it is ana- logous to a bill in equity. The ground of the action is, to recover half of the neat profits arifing by the re-fale of certain goods pur- chafed by the defendant, as ftated in the re- port. The general queftion is, " Whether the plaintiff ought to recover in an action for money had and received ?" That is, " Whe- ther it it againft confeience the defendant mould retain the whole profits of the goods in queftion to himfelf?" There are two grounds, either of which is an anfwer to the action : ill, If the contract be ufurious with- in the ftatute : or, 2d, Though not ufury within the ftatute, if it be an unconfcionable bargain. You all remember where the court held a cafe not within the ftatute of ufury j I mean the cafe of the wire-drawers c . The ground of the action there was, that the plain- tiffs, who were gold refiners, had advanced gold-wire to others in the fame trade, upon the terms of paying fuch a price, if the mo- c Cowp. 1 12. nev Conttaft?, &c 2 sj ney was paid within three months; and if not, then to pay at the rate of an halfpenny an ounce per month, over and above the price agreed for : which in faft, upon calcu- lation, amounted to above 5 per cent. This, at the trial, was proved to be the conftant ufage of the trade. An objection was made on the pare of the defendant, that it was ufu- rious. A verdict was found for the plaintiff, and a queflion referved for the opinion of the Court, Whether this contract was ufury ? And under all the circumftances, efpecially the conftant ufage, the Court were of opinion it did not amount to ufury within the ftatute. Some time after, an action was brought for money had and received, upon a Gniilar con- tract, " to recover the furplus of the half- penny an ounce d .'* The defendant paid in- to court the principal and intereft ac 5 per cent, from the time of the bargain, and offer- ed to pay cofts down to the action brought: And the fingle queftion was, " Whether the excefs of intereft mould be paid\ ? '' It appear- ed manifeftly at the trial, that this excefs was only to be taken in cafe of delay of payment at the end of three months, and (or no other reafon whatfoever ; and the vendsc was at liberty to have paid the principal at the expi- A Cowp. u 6. ration 2&4 partnetfijfp— ration of that time. I ruled at Guildhall, that the tranfa&ion ought to be confidered as not ufury within the ftatute. But the law of the land having declared that 5 per cent, was fufficient for delay of payment, I was of opi- nion that the demand of the furplus was an exorbitant demand, and therefore ought not to be recovered in an action for money had and received. The jury accordingly found a verdict for the defendant, and that opinion was acquiefced in without any new trial being moved for. But to confider this cafe fird, in the light of an ufurious contract. There is no contrivance whatever, by which a man can cover ufury. Here are two brokers. One, who is the de- fendant, wants to buy goods that were upon fale ; and the other agrees to lend him money for that purpofe; but he is to lend it upon the terms of being paid both principal and interefl: from the time the loan commenced. It is true, no rate of interefl is relerved in the note j but it is made, payable on demand. From the moment of the demand therefore, it would carry interefl j and the plaintiff had it in his power to make demand, the very in- iluit the bill was delivered. Befides this, he does not even trull the defendant with the j of Contains, &c. 285 poffeflion of the money in his own hands; but when the goods are bought, and not be- fore, he pay* the money to the landlord for the defendant. Within two hours after, he demands the money, and then the note begins to cany interefl:. He was not bound by the agreement to give credit for a moment. So that there was no fort of rifk whatfoever; and in fa£t, as foon as the money was paid, a man was put into pofieflion for himfelf, as well as for the defendant. The note there- fore, was payable with interefl: from the time of demanding payment, and he has pofiefiion of the goods. That was manifeftly with a view to fecure to himfelf the furplus advan- tage which he had ftipulated for, upon a re- fale. Both parties from their fituation knew there would neceffarily be a profit. It feems to me therefore, that the intention of the con- tract was to get more than principal and le- gal interefl upon the note, which is ufury within the meaning of the ftatute. But fup- pofe it were not ftriclly ufurious, (hall a man in an action for money had and received, which is an equitable action, and founded in con- fcience, recover fuch an unmeafurable and exorbitant demand as this is ? Mofl clearly he fhall not. Therefore upon either ground the sss {?att!tetQfp— the verdict mull be fet afide, and the non- fuit .entered. Wilks Juftice. — I am of the fame opinion. Jfhhtirjt Juftice. — I think that upon the original contract, it muft: be underftood, the plaintiff was to have no intereft, and therefore the contract icfelf was not ufurious. But laving broken the faith of that agreement, hf making an immediate demand of pay- ment, and thereby entitling himfelf to intereft, 1 am of opinion he has precluded himfelf from demanding a fhare of the profits of the fale liikewife j for it is againil confcience that he iskould have both. Btdler Juftice. — Whether this be ufurious ©r not, it is clearly great oppre/Tion. Lend- ing money is giving credit. And here, the toafideration was, that the plaintiff fhould Ikave half the profits of the fale. But inftead ©f giving credit, he demands the money im- Erediately. The confederation therefore is at an end, Ter Cur. Let a nonfiik be entered. So Contrast, &c. 287 So upon the fame ground of reafon, if the borrower of money give a bond for the prin- cipal and inrereft at 5 /. per cent, and covenant at the fame time alfo to pay to the lender a certain portion of profits of trade, this is an ufurious contract, and the obligee cannot re- cover on the bond ; for in fuch an agreement provifion being made to receive the profits only, and not to engage for the lories of the trade, it is contrary therefore to the principle upon which the partnerfhip contract muft be founded, namely, reciprocal advantages, and muft confequently be deemed a contract not binding upon the parties. Thus in the cafe of Morje againft M. Wilfon e , which was an action of debt on bond for 4000/. The de- fendant, after craving oyer of the bond, which was a joint and feveral bond by the defend- ant Matthew and Harry Wilfon -, and of the condition, which was that the bond mould be void if the defendant, or Harry Wilfon, mould pay 2000 /. with lawful intereft for the fame at 5 -per cent, pleaded, that before the execut- ing of the bond Harry Wilfon was poiTefTed (amongft other things) of two ihares, calcu- lated to be of the value of 1000/. each fhare, in a brewhoufe fituate, &c. and which brew- houfe and the bufinefs thereof were then oc- < 4 Term Rep. 353. cupied 2-88 partnetiWp*- cupied and carried on by him and one William Cator and Francis Jefferies in partnerfhip to- gether, under the firm of Cator and Co. which two fhares were thereafter expected to produce a large iurplus of profits to Harry, over and above what would be fufficient to iatisfy and pay the intereft of 2000/. after the rate of 5 /. per cent, for the forbearance; and thereupon, on, &c. at, &c. it was corruptly, and asainft the form of the ftatute in fuch cafe made and provided, agreed by and be- tween the plaintiff and Harry Wiljon, that the plaintiff fhould lend to the faid Harry 2000/. and fhould forbear and give day of payment thereof to the faid Harry until and upon the faid i ith day of June 1789; and that for fach forbearance and giving day of payment of the faid 2000 /. the laid Harry fhould pay to the plaintiff not only intereft for the faid 2coo/. for and during the time of fuch forbearance, after the rate of 5 /. per cent, but alfo fuch furplus profits as fnould arife during the time of fuch forbearance on the faid two fhares, after 5 /. per cent, per annum for the faid 2000/. fhould be paid ; and that for fecuring the re-payment of the faid 2000/. with inte- reft,, at the rate of 5 /. per cent, per annum, the faid Harry and defendant mould execute the bond, &c. and that for fecuring the payment of Contend, &c. 289 of fuch furplus profits as afbrefaid, the faid Harry (hould make and fubferibe a certain writing, bearing date the nth June 1788, purporting that in confideration of the faid 2000/. received by the faid Harry from the plaintiff, he the faid Harry for himfelf, his executors, &c. made over to the faid plain- tiff, his heirs, executors, &c. the faid two fhares, &c. (that is to fay) that after 5 l. per cent, was paid on the faid capital of icooh fuch furplus as fhould arife on the (aid two (hares, which was calculated at ioco/. each (hare, fnould be bona fide the property of the plainriff, and (hould be paid to the plaintiff on demand ; and covenanted that on the 24th of every month of June, during the time the faid Harry fhould be in pofftffion of the faid 2000/. he would produce the full and true accounts of the profits, fuch as were made up by the faid Harry and his partners, &c. The plea then dated that the plaintiff afterwards, (to wit) on, &c. at, &c« and in purfuance of the faid corrupt agreement, lent t,o the faid Harry the faid 2ood /. and forbore and gave day of payment thereof to the faid Harry, until and on the faid 1 ith of June 1785; and that after the making of the faid corrupt agreement, and in purfuance thereof, and for lecuring the re-payment of the faid 2000/. U with 2$o pnrtnei'(ljf£- with intereft at the rate of 5 /. per cent, per annum y (to wit) on, &c. at, &c. the faid Har- ry and the defendant executed the bond, &c. with the faid condition thereunto fubfcri bed ; and that in further purfuance of the faid cor- rupt agreement, and for fecuring the pay- ment of fuch furplus profics as aforefaid, afterwards, (to wit) on, &c. at, &c. the faid Harry Wiljon made and fubfcribed a certain writing, bearing date the faid nth of June j 788, according the purport and effect in that behalf aforefaid; the defendant then averred that the furplus of the profits fo agreed to be paid by the faid Harry to the plaintiff, toge- ther with the interefr, fo agreed to be paid by the faid -Harry to the plaintiff', and fo fecured by the bond and the writings fo made, &c. exceeded the rate of 5 /. per cent, per annua; y contrary to the form of the ftatute, &c. by means whereof the bond is null and void. To this there was a demurrer; Rating for caufe that it did not appear that there were any furplus profits arifing during the time of the faid forbearance on the two fbares in the plea mentioned ; or that any thing by the faid agreement agreed to be paid by the faid Harry to the plaintiff, together with the laid intereft, fo agreed to be paid by the faid Harry to the faid plaintiff, and fo fecured by the bond, ex- ceeded Contrast, Sfc i$\ ceeded the rate of 5 /. per cent, for the for- bearance of each 100/. per annum, contrary to the form of theftatute, &c.joinder in demurrer. Chambre, in fupport of the demurrer, con- tended that this contract was not ufurious ; for although the plaintiff was intitled to the furplus profits of the two mares, in addition to the 5/. per cent, on the money lent; and although as between him and the partners he was not anfwerable for the loiTes in the trade, yet to all the reft of the world he was refponfible for the parinerfhip debts, and thus his principal was in hazard. And it is eflfen- tial to the Crime of ufury that the principal, upon which more than legal intereft is re- ferved, mould not be put in hazard K The diftinction taken by Dodderidge J. \r.-Cro. Jac. 508. has always been confidered as the rule upon which queftions cf this fort mud be de- cided. If I lend 100/. to have 120/. at the ye-ar's end upon a cafualry; if the cafualty goes to the intereft only, and not to the prin- cipal, it is ufury ; for the party is fare to have the principal again, come what will come: but if the intereft and principal are both in hazard, it is not then ufury. If it be 'object- ed that by the terms of this contract the prin- f Lord Chefterfield v. Janffen, 2 Wilf. 286. U 2 cipal 292 partitccfijlp— cipal is fecu red at all events ; the anfwer is, that it is no farther fecured in this cafe than in the cafe of every fleeping partner, who re- ceives 5 /. per cent, on his own. (hare of the capital, befides his proportion of the profits. And it is immaterial whether there be or be not a clauie in the agreement to fubject fuch Deeping partner to the partnerfhip debts, be- caufe the law annexes fuch liability to the right of receiving the profits of the trade. The queftion relative to fecret partners, was very fully confidered in Grace v. Smith 8, where a paitner, who retired from trade, left a fum of money in the bufinefs, for which he was to receive a certain annuity, over and above his 5 /. per cent, and the Court held that he could not be confidered as a fecret partner, becaufe it would be unjuft to fubjecc a parry to the indefinite loiTes of trade, from which he could only receive a ftipulated pro- fit. But here, as the plaintiff is entitled to the whole amount of the profits of the two fhares, he muft be refponfible to the world for the lofies. In the cafe in Blackft. another of Bloxham and Fourdrinisr is cited, which if much itrong- t 2 El. Rep. 993. er Contrast, &c 293 cr than the prefent; where Pell, who retired from bufinefs, left a fum of money behind, and took a bond from Brooke his partner to fecure an annuity of 200/. for fix years, over and above 5 /. per cent, for his money, in lieu of the profits of the trade ; and this Lord Mansfield held made him a partner. Now here the plaintiff was entitled to the profits them/elves. Dallas, contra, was flopped by the Court. Lord Kenyon, Ch. J. Nothing can be clearer than tftis cafe. The plaintiff, with- out having any partnerfhip in conremplation, lent 2000 /. to LI. IVilJGii, for which he was to receive not only 5 /. per cent, intereft, but alfo fuch furplus profits as fhould arife from thefe two (hares in the bufinefs, he himfelf not being bound on the other hand to make good to the partners any part of the lories which the trade might fuftain. The fnnple queflion is, whether this is not an agreement to receive more than the 5 /. per cent, allow- ed by law for the forbearance of a loan ? Moll unqueflionably it is ; and it is therefore void. It has been argued however that this was not an u furious contract, becaufe the principal was put in hazard, as it was liable U 3 to c 9 4 pnitnerdjip— to the partnership creditors : but it was no farther hazarded than in the cafe of every other loan, namely, by the rifk of the bor- rower's infolvency; for as between the plain- tiff and the partners in the bunnefs, he was not liable to contribute to the lolTes in the trade. Jjhhurft, J. Where on the face of the contract itfelf the principal is in hazard, as in bottomry bonds, the lender may referve more than 5 /. per cent, intereft, without incurring the gU'k of ufury. But where the principal is fecured at all event*;, and yet mere than 5/. per cent, may be got by the terms of the contract, it is ufurious : and fuch is the pre- fer, t cafe. Butter, J. In this agreement provifion is made to receive the profits, but none to en- gage for the loffes, of the trade. And there- fore it is not true that the plaintiff's principal was at (lake j fince by the terms of the con- tract the trade is to be carried on by the other partners, and the plaintiff is only liable to make good the loffes of the trade in the event of the infolvency of the other partners. But as between thefe parties, if there be any loffes, they mull; be borne by the defendant and the €oturaff&-&c. 295 other partners ; and if there be any profit, the plaintiff is to receive his proportion of it. Grofe, J. declared himfelf of the fame opinion. Judgment for the defendant. In all partnership contracts where money is furnifiied by one fide only, if the cajualty goes to the inter eft of fuch money only, and not to the principal it is ujury h, and the lender is precluded from recovering any thing in an a6tion at law founded upon fuch an ufu- rious contract, nor can the parties be confi- dered as bound by fuch contract. But at the fame time, to make a contract ufurious, there muft be a lean of money, wares, merchan- dize or other commodity, to be re-paid and reftored to the lender with higher interefl than the ftatute allows ; it is effential that the thing lent, is to be returned, for it cannot be a loan unlcfs the money or thing borrowed is to be reftored j the making-illegal intercft precarious, if the loan of the principal money or thing is to be reftored, will not take it out of the ftatute ; nor i will any other fhifc or b 1 Term Rep. 200. ■i 3 war. 395. U 4 contriv- contrivance whatever. In the cafe o( Ro- berts v. Trenayne, J u ft ice Dodderidge took thefe differences in cafes of cafual ufury. Firft Is If money be lent on a rifk at more than legal interefl, and the cafualty affects the in- tereji only, it is ufury ; for the party is fure to have the principal again at all events j but if the interefl and principal are both in hazard, it is not then ufury ; and it was there- fore adjudged in the common pleas, m Dart- mouth's cafe 1, where one went to Newfound- land, and another lent him ioo/. for a year to victual his fhip; and if he returned with the fhip, he would have fo many thoufands offifh; and expreffes at what rate, which exceeded the interefl allowed by the ftatute; and if he did not return, that then he would lofe his principal j it was adjudged to be no ufury. k Cro. Jac. 508. Cro. Eiiz. 27. 643. 741. 1 Lev. 54. Hard. 518. 1 Eullt. 36. iSid. 1S2. 2 Ch. Ca. 130. Vern. 263. 1 Vez. 164. 2 Burr. 704. 3 Bac. -Abr. 681. 692. i Hawk. F. C. 531. 3 Term Rep. 1 Cro. Jac. 209. Thus ConttaW, &c. 297 Thus in the cafe of Martin v. Abdee m it § partticrajfp— Upon the very fame principle aifo it has '<■-•,-.] he! J, that a bond in the penalty of 200/. conditioned for the pei formance of articles of partnerfhip, ought not to be con- sidered an u fui ions contract. Thus in the cafe of MorijTct v. King?, 'which was an action of debt on bond, in the penalty of 200/. conditioned for the due performance of certain articles of partner- ship; which articles recited that Mary Morijfet had lent Daniel King the fum of 100/. to be repaid to her at the end of four years, without inter eft \ but in confideration that the faid Daniel King, his executors and adrrrtniitrators, fhould find and provide for Msry Dubois daughter of the faid Mary Mcriffet-3 (the obligee), meat and drink in the houfe where he dwelt or fhould dwell, for four years, if the faid Mary Dubois fhould fo long live j and that fhe fhould, during the faid term, board with him, and that fhe fhould be co-partner with Mary King, wife of the faid Daniel King, in the bufincfs cf a millener; and mould all that time bear one moiety of the lofles, charges, (except houle- keeping), fhop-rent, and materials neceifary p 2 Burr. 891. fcr Contrast, &c 299 for carrying on the trade, (which the faid Daniel King did agree to provide) j and they mould be partners, and each do their. utmoft to carry on the trade; and fhould equally divide the profits ; and alfo that the faid Daniel King fhould lodge the faid Mary Morijjet fhe paying him 10/. a-yeaf. And at the end of the four years Daniel King was to re-pay the io)/. And in cafe of the death of the faid Mary Dubois, to pay the principal, together with lawful interefr, for the 100/. to the faid Mary Morijjet. The defendant after having demanded and had oyer of the condition of this bond, and of the articles therein recited, pleads, " That this was a corrupt agreement;" with an aver- ment " That the board of Mary Morijjet (the mother) was worth 20/. a-year; and the board of Mary Dubois (the daughter) was worth 10/. a-year." To this plea the plaintiff demurred. The only queftion was, Whether this was an usurious ccntratl, within the flatute of Ann. q which makes void all bonds, con- tracts, and affuranccs, where more than 5 /. ■per cent, per annum is direftly and indirectly taken for any loan. 1 1 z Ann. flat. z. c, 16. Mr. A/pin- 3co pactiteriWp— Mr. Ajpinall argued, as counfel for the plaintiff, and Mr, Wedderburn for the de- fendant. The Court were extremely clear that this cafe could not be within the ftatute of wfury. Lord Mansfield cbferved, " It is impof- flble to fay that King might not receive fo much advantage by this partnerfhip, as to be worth the confideration. It might be a very advantageous bargain to King : there might be recommendation, (kill, labour, or other benefits arifing to him from it. He men- tioned the cafe of Mr. Hubert , who entered into a private kctti partnerfhip with Nelfon, who drew him into a bankruptcy thereby r . So here the plaintiff's daughter might have been drawn into a bankruptcy, by means of this agreement; which would have been more fevere to her, perhaps, than the pe- Baky of this ftatute of ufury would be- Mr. Juftice Fcfier and Mr. Juftice Wiimot concurred with the Chief Juftice. They faid i it r Ante p. 15?. Contrast &c 301 it did not explicitly appear whether this was a prudent agreement or not; but it might be beneficial to King upon the whole ; at leail it was not fuch a contract as could be adjudg- ed by the Court to be ufurious within the ftatute. Judgment for the plaintiff", 3°* CHAPTER XL Pnrturrfijip— accottntg, Jjotu to be fettlcU fcetlueeit Partner*. HEN an account is to be taken be- tween partners, each is entitled to be allowed againfl: the other every thing he has advanced or brought into the partnership concern, and to charge the other partner in account, with what that other has not brought in, or has taken out more than he ought a . Thus in a ci(c k t where there were two partners, and one had taken out more money from the partnerfhip (lock, than his mare amounted to, and therefore became a debtor for fo much. Lord Chancellor Talbot was of opinion, that the partnerlhip creditor had a right to come upon the fepar.ate eftate of the partner, who was fo indebted. a Cowp. 47 1 j b Ek parte Drake cited ? Atfc. 225. 2 Cli. Rep. 226. S. P. 16 Vin. Abr. 24.2. Cookc'sB. L. 612. Xho' atcount& &c' 303 Tho' length of time is no bar between merchant and merchant, whiift their ac- counts are going on, yet dealings having ceafed many years between them, and, afcer difptites there having been an acquiefcence till the death of one of them, the Court of Chan- cery will not decree an account with the furvivor, but leave the plaintiff to his re- medy at law c. Where A. and B. partners in trade ftated their account, and A. gave B. a note for the balance, but at the fame time promifed to reclify any error or miftake in the account; B. obtained judgment againil A. on the note at law ; and the Court of Chancery decreed a new account concerning their ftock and trade, and payments and receipts, and each to produce their bocks of account on oat!*', and what fhotifd ap ear due, to be paid intered when and where cHc ouid appoint <-'. A bill e is for an account by A. a merchant againft B. a merchant who was his partner. Defendant pleads, that the dealings concern- c 2 Ve;n. 276. d Tin. R 431. Vin Abr. 247. e Bridges and Mitchell, Gilb. Eq. Rep. 224. ing 304 partnerOjip— ing which plaintiff pravs an account, were tranfacted above twenty years before the bill brought; and pleads nich acquiefcence with- out fuit, ai.d alio the ftatute of Limitations in bar of the account. Per Cur. Forbearance- of fuit for twenty- years will in equity be a good bar though be- tween merchant and merchant. It is not neceffary for the defendant in fuch a bill to aver in his anfwer, that he did not promife within fix years to account, £?V. unleis particularly charged in the bill ; as was refolved in Bodvil and the Bifhop of Mtath *, and faid -per cur' in the above cafe. And though the ftatute of Limitations has been always conftiued to except accounts open between merchant and merchant, yet that is t© be understood with this distinction, that if open accounts be by fubfequent acts continued, they are not barred by the inter- vention of fuch length of time from the ori- ginal tranfacliong 3 but if fuch an account is by the plaintiff deferted, in fuch cafe it is f Gilb. Eq.Rcp. 225. « Cooke's B. L. 608- barred, accounts, &c. sos barred, exa&ly as if it had been formally clofed; and is taken to have been fo. And in a matter ex parte Grille joint af- fignees were not permitted to prove againft the feparate eftate, the balance of a long ac- count due from the partner to the partner- ship. A. a clothier and B. a dyer, had mutual dealings in their way of trade, which were carried on for feverai years without payment of money on either fide, but the debts on one fide were paid off againft the debts on the other. B. was otherwife indebted to A. and on ftating accounts in 300/. for which he made a mortgage, and afterwards owed A. Q.00L for which he gave bond and judg- ment: B. dies inteftate, and indebted to others by fpecialties, who as principal cre- ditors take out adminiftration, and finding feverai fums due from A. fue him at law i. On a bill by A. Macclesfield C. decreed an account, and that A. fhould be allowed on difcount what was due to him from B. and his cofts k . And his Lordfhip faid, that though h 2 Eq. Abr. 9. pi. 8. 1 ?. Wms. 325. 2 P. Wms, H28. 1 At!:. 22S. cited 8 Vin. Abr. 560. Blac. R. 653. i Prec. Cha. 580. k Cooke's B. L. 608. X generally soS gaitnetffifp'-' generally ftoppage was no payment, yet in cafes of this nature, where it appeared that the mutual dealings between the inteftate and plaintiffs were carried on for feveral years- in this manner without payment of money on either fide, it was a ftrong prefumption of an agreement to that purpoie, and that other- wife they would not fo long have continued their dealings : that it was the conftant ufaee between merchants and traders. That the ftatute of bankrupts directs accounts to be taken in fuch manner, that if there be but the lead handle for directing an account, fo as to fet off the other's debts, it ought to be done ; as if even in the cafe of a bond the interefi had not been paid, but caft up and allowed in goods, this would intitle them to retain the whole againft each, as the account fhould come out 1 . For a man cannot flop his rent for money owing to him, or a bond, towards fatisfaction of a fimple contra ft debt*. Per Lord Mace. e field, ibid. Four bookfellers entered into partnerfhip for carrying on a joint trade m , and being then in Holland, according to the cuflom of the coun- try, appeared before a Notary, and executed ai tides of copartnership, declaring jointly and 1 Prec. Cha- 582. Jn 2 £q. Cd. Abr. 111. feparatety, accounts, s?: $0$ Separately, that each had advanced 24,600 guilders, total 983400 guilders,which fum was to pay all the debts they had then contracted, ±5 mentioned in an inventory ; but no debts ihould be paid riot mentioned in the faid in- ventory, nor any debts which either of the copartners might contract on his own private account : that a fum agreed on between them lhould be allowed for maintenance j and that all lofs and gain fhould be equally fhared and borne, with other ufual covenants. The copartnerfhip was carried on from AW, 1725 to May 1728, when one of the partners, for a fum agreed to be paid him, quitted and releafed his claim to the other three, between whom the articles were continued and carried on, on the fir ft footing; and one of them was intruded with the goods in fhop and warehoufe. But he became profufe, and embezzled the copartnerfhip ftock, and applied the fame to his own ufe, and fuffered the pamnerfhip debts to be unpaid ; and having contracted private debts on his own account became a bankrupt, and a feparate commiffion was taken ouc againft him. The mefTenger tcok poffefijon $>f the partnermip goods, and the commiffion- X 2 crs 30$ pattnctfljfp— ers executed an affignment to the defendants, who in confequence thereof took poffefiion of the partnerfhip goods and books, and receiv- ed feveral of the partnerfhip debts, and were getting in the reft, with an intention to ap- ply them to the payment of the feparate cre- ditors i whereas the goods are copartnerfhip goods, and ought to be applied to the copart- nerfhip debts, and to make the plaintiffs fa- tisfaction for what the bankrupt had embez- zled for his own feparate ufe, and the refidue to be divided into equal parts, two thirds to the plaintiffs, and one third to the bankrupt, to which he is entitled, and is to be part of his feparate eftate. This was the prayer of the plaintiff's bill, and that the defendants might be reflrained from felling any part without the plaintiff's concurrence. The afTignees admit the bill, and the arti- cles,, that they have taken poffefiion and fold fome of the ftock without confent of the plain- tiffs, and fet forth an account in the fcheduie to their anfwer, of the ftock, and fubmit to apply the eftate as the Court fhall direct ; and his Lordfliip was pleafed to decree as follows I— Jftjj account*, fie. 309 I ft, That it fhould be referred to theMafler to take an account of the partnerfhip debts received by the plaintiffs in Holland. 2d, To take an account of the partnerfhip eftate in England, received by the affignees, or any for their ufe. 3d, To take an account of the partnerfhip debts owing by the bankrupt and the plain- tiffs, 4th, To caufe an advertifement for the joint-creditors of the bankrupt and the plain- tiffs to come in and prove their debts. 5th, To take an account of what embezzle- ments the bankrupt has made of the copart- nership eftate j and in taking accounts, plain- tiffs and defendants to be examined on oath, to produce all books, papers, &c. and to have all juft allowances. 6th, That what the Mafter fhall certify the copartnerfhip debts fliall amount to, fhalj, in the firft place, be paid by the plaintiffs and defendants to the joint-creditors in propor- tion to their debts, as far as the copartnerfhip eftate in their hands will extend. X 3 7*i 5 16 pattfiierfljfp— 7th, That if it fhall appear any of the part- rierfhip eftate remains in the plaintiffs and de- fendants hands, after the partnerfhip debts are paid, then the Mailer to divide the fame into three parts. 8th, And the plaintiffs are to take two thirds, and out of the bankrupt's one third part, they are to take what it (hall appear he has embezzled of the partnerfhip eitate. 9th, And if there fhall be any refidue of the bankrupt's third part, after the partnerfhip debts, and the bankrupt's embezzlements are fatisfied, then the fame is to be paid to, or retained by the affignees for the benefit of the bankrupt's feparate creditors. 10th, The Mailer may ftate any thing fpecially ; and all parties are to be paid their cofts of this fuit out of the copartnerfhip eftate, to be taxed by the Mafter. Items in a partnerfhip account, relating to the particular interefl of a book-keeper, will not be fupported in a court of equity n . » Atk. 141. Lord account*, &c ^i. f Lord Chancellor Hardwicke. c< Though this Court have gone a good way in fupporting a book of accounts which relates to a partner- fhip, yet I do not know any inftances where they fupported items in fuch a book that re- late to the particular intereft of the officer, deputed by the partners, to keep this gene- ral book of account feparate from the part- nerfhip affairs." If A. and B. have a general running ac- count, confiding of bills drawn by B. on C. in favor of A. and of bills and other fecuri- ties depofited by A, with B. and upon the failure of B. and C. A. is obliged to take up the bills received by him from B. whereby the balance of the accounts is in favour of A. Hill he cannot maintain trover for the bills depofited by him with B. unlefs they were fpecifically appropriated to anfwer B.'s drafts on C. in favor of A. and depofited for that purpofe exprefsly ° . And it hath lately been fo decided in the cafe of Bent and Another v. Puller and Others, affignees of Caldwell and Co, p o 5 Term Rep. 494. p Vide Tooke v. Hollingfworth, 5 T. R. 215. X 4 Where 3i2 Famtetf&fp- Where perfons in trade have been connect- ed in various partnerfhips, and a joint com- million taken out againft them all, an order has been made for keeping diftincl: accounts of the different partnerships, as well as the feparate eftates of each partner <1 . In 17713 Thomas Petit had feparate cre- ditors. In 1772, Petit and Flight became part* ners. In 178 r j Petit 3 Flight and Runnington be<* came partners. In November 17S5, a commiffion of bank* xupt ifiued againft the lad three. This was a petition for feparate accounts of the three eftates. Though the Court did pot know any inftance, of dealing in the firm of two partners forming part of the firm of three, the prayer of the petition was granted, and it was ordered that it be referred to the major part of the commiftioners, named in the commifiion ifiued againft the faid bank* % Ex parte Marlin, 2 Bro. 15. rupts, account*, &c 31 j rupts, 'Thomas Petit, John Runnington, and Richard Flight, to keep diftinct accounts of the joint eftate and effects of the faid bankrupts, Thomas Petit, John Runnington, and Richard Flight, and of the joint eftates and effects of the faid Thomas Petit, and Richard Flight, and of the feparate eftates and effects of each of the faid bankrupts ; and that the feveral creditors on each of the faid feveral eftates,; be admitted to prove their refpective debts under the faid commiffion againft the faid bankrupts, Thomas Petit, John Runnington, and Richard Flight ; and that each of the faid re- fpective eftates be applied, in fatisfaction of the creditors of each refpeftive eftate, after full payment and fatisfadtion of the debts on fuch eftate, be carried over to and conftitute part of the joint eftates of the faid bankrupts, and the cofts of this application to be paid out of the joint eftates of the faid three bank- rupts ; and the cofts of keeping the faid feve- ral diftinct accounts were directed to be borne and paid out of each of the faid refpective eftates, according to the proportions which in the judgment of the faid commiflloners, the fame ought to be borne and paid by each of the faid eftates. But, au .ipurtncrfl&fp— But, on the other hand, when there have been various partnerfhips, and a joint com*- million is taken out againfi: one firm, in which -fome of the parties were not engaged, there can only be the common order for keeping the difLincT: accounts of the joint and feparate cftatej therefore 1- , when it appeared, that previous to July 1790, James Niblock carried on a feparate trade, and contracted feparate debts j and that in the month of July 1790, lie entered into copartnership with one Richard Cook y and continued in fuch copartnership until the month of April 1791, having con- tracted debts in their faid copartnership, and amongfl: others to the petitioners. In April 179 1, Niblock and Hunter became copartners, which partnership was diflblved m July of the fame year. Niblock and Hun- ter were indebted to the petitioners. On the 30th of July 1791, a cornmifiion cf bankrupt iffued againft Niblock and Hun- ter. Nibfock and Hunter , at the time of their bankruptcy, were in polTefilon of (lock in trade, part of which was the property of Nib-- r E>: pane Parker, 22 that the account was not confined to matters relating to the partnerfhip, but it includes other articles for which covenant will not lie. Therefore when the defendant promifed to pay the balance, there was an end of the covenant. And even if no other articles had been intioduced into the account but thofc relating to the partnerfhip, I fhould ftill be of opinion that ajfumpfit would lie. For the queftion then would be, Whether a previous partnerfhip being diflblved, and an account fettled, is or is not in point of law a fufficient confideration for a promife ? I have no dif- ficulty in faying that it is. Now here there was an exprefs promife by the defendant to pay the balance -, and therefore the cafe cited from Alleyn does not apply; for in that cafe there was no exprefs promife. It is objected that the judgment in this action could not be pleaded to an action brought on the cove- nant: but I think it might, if pleaded with proper averments. For a plaintiff cannot re- cover a double fatisfaction : if he has reco- vered a judgment in one form of action, he cannot afterwards recover in another for the fame caufe of action. With refpect to the other objection, in fupport of which the cafe of Vernon and Hanky is cited -, there the payment account!*, &c. 3 27 payment was made voluntarily with know- ledge of an act of bankruptcy, which was followed up by a commiffion. The aflignees can only recover where the payment has been voluntary, and with notice : but in the prefent cafe there has been no commiffion, no docquet was ftruck; neither was there any intention to fue out a commiffion j and the defendant will not be confidered to have paid this demand voluntarily. If indeed there were any fraud, by the defendant's col- luding with the bankrupt in fuffering a judg- ment to be recovered againft him, that would be a different cafe. But there is no fraud in this cafe ; the defendant has no legal defence j and the action is right in point of form. Grofe J. declared himfelf of the fame opi- nion on both points. Rule difcharged. By the common law none could be charged in account, but as guardian in focage, bai- liff, or receiver, except in favor of mer- chants, and for the advancement of trade, and by the law of merchants, one naming Y 4 him- 5 *8 jpartnerftfp— himfelf merchant, might have an account againil another naming him merchant, and charge him as his receiver a. And altho' actions of account may be brought in fome cafes by one partner againft another, yet ftill are matters of account thought more pro- perty cognizable in equity than at law, as the party can have a difcovery of all books, papers, and writings., together with the be- nefit and advantage of the defendant's oath. Eut fince the practical arts of merchants and traders are beft underftood by thofe who are moft Ikilled in the fcience of merchants' ac- counts, perhaps the readied way to adjufl differences between partners is to refer all matters in difpute to perfons in their own line to fettle accounts between them. And we have the highefh authority for adopting this plan, becaufe the Houfe of Lords, in mat- ters of account which are intricate, refer it to two merchants named by the parties, to confider the cafe, and report their opinions upon it. Thus in the cafe of Gyles v. Wilcox and Others b . a i Inft. 372. a. 11 Co. 89. b 2 Atk. 144.. Lord accounts &c. 329 Lord Chancellor Hardwicke — The Houfe of Lords very often, in matters of account which are extremely intricate and perplexed, refer it to two merchants named by the par- ties, to confider the cafe, and report their opinions upon it, rather than leave it to a jury. 33° CHAPTER XII. g<3 fcetujcen gartners? aitft tCfifrU perron?. MERCHANTS and traders know of no difference between dealing with an individual or a co-partnerfhip firm, and all partners are bound by what any one of them does in their joint trade or bufinefs, for, quoad hoc, each partner muft be consi- dered as an authorifed agent for the reft, both by the common law, and the law-merchant. Thus where two partners agreed to borrow a fum of money of a third perfon, but only one gave a bond, and the other witnefied it, the money was afterwards entered in the cafh-book of the partnerfhipj upon a bank- ruptcy happening, a joint commifllon was taken out, and the obligee named in fuch bond was confidered entitled to come in and prove his debt under the joint commifiiona. So likewife it hath been ruled that if two partners agree to pay a fum of money to a third perfon, tho' out of their own private cafh, » i Atk. 225. they %$ fcetfoecn, &c. 331 they mud be jointly fued. Thus it was held in the cafe of Byers v. Dofoy, where there was a contract made by two partners to. pay a certain fum of money to a third perfon equally out of their own private cajh. This was an action in ajfumffit^ for the life and occupation of a (hop, counting-houfe, and chambers, part of a mefiuage, with the appurtenances, &c. quantum meruit, money paid, laid out, and expended, money lent and advanced, money had and received, da- mages 200/. Plea in abatement, " That the promifes, &c. if any, were made by the defendant and one George Bethell jointly, and not by the defendant only, &c." Replication, That they were made by the defendant only, and not by him and the faid George jointly, &c. On which iffue was joined, and a verdict found for the defend- ant. The material facts of the cafe were thefe : By articles of partnership entered into in 1774, between David Humphries of the one part, and Richard Byers (hufband of the plaintiff) John Dobey (the defendant), and b H. Blackft. Rep, 236. George partncrftfp - George Bethell of the other part; it was agreed, amongft other things, that Byers, Dobey, and Bethell, fhould carry on in part- iierfhip the trade of a hofier for 14 years, and purchafe the (lock in trade, utenfils, and fixtures of Humphries : that Humphries fhould grant to ' Byers a leafe of the houfe, &c. where the bufinefs was carried on for twenty- one years, at the rent of 50/. clear of all taxes, payable quarterly, by and -out of the private cajh of Byers ; in which leafe, a room fhould be referved for the ufe of Humphries, during his life, and after his death for the ufe of Byers - 3 that the bufinefs fhould be carried on by Byers, Dobey, and Bethell, in the (hop and other parts of the houfe as it had before been done by Humphries-, that Byers and his family fnould live in the houfe; that Byers fhould during the partnership, as a compenfation for the ufe of the fhop and premiffes, be paid equally by Dobey and Bethell cut of their own private cajh i$l. yearly, by quarterly payments, and that they fhould pay Byers a moiety of all taxes whatfoever, for, or on account of, fuch houfe and pre- mises : that if either of the partners fhould die and leave a widow, floe fhould, if fie chofe, be taken into the partnerfhip for the remainder of the term : that if Byers fhould leave a widow, 8s bcttnent, &c 333 widow, and Hie fhould continue in the bufznefs with the furviving partners, then jhe jhoidd hold the /aid boufe upon the fame terms and condi- tions as he would have holden it, if he had been living, &V. Byers died in 1778 ; his widow, the plain- tiff, continued in the partnerfhip with the de- fendant and Betbell, till the expiration of it, when fhe brought this action to recover 1 2 /. jo J", half the annual rent of 25/. (for the ufe of the houfe, &c. which was to be paid equally out of the private cafh of the defend- ant and Betbelly according to the articles), together with the rent for part of a year pre- ceding the expiration of the partnerfhip, and half of one moiety of the taxes, as the de- fendant's fhare under the articles. A rule having been granted to fhew caufe why the verdict fhould not be fet aiide, and a new trial granted - 3 Bond Serj. fhewed caufe, and contended that the words " to be paid equally" made Dobey and Bethell joint tenants, and not tenants in common. This conftruction would be put on the like words in a deed , and if words, of grant be thus conducted, fo alio ought 334 Jpatttterffifp— ought words of render. Although in wills and deeds of conveyance under the flatute of ufes thefe words would make a tenancy in common, yet in deeds at common law they make a jointenancy. i Salk, 390. Ward v. Everard, Watjon Serj. for the plaintiff argued that as the money was agreed to be paid " out of the private cafh" of Dobey and Bethelly it was to be paid by them feparately, and not out of the joint ftock. There could be no joint private cafh : the expreflion, to be paid equal- ly, could only mean that each fhould pay a moiety of 25/. and the words private cajh> {hew that they were individually anfwerable. Lord Loughborough. l( one of them had died, would Byers have been entitled only to 12 I. 10 s. ? The intereft in the trade would have furvived, yet according to the argument of the plaintiff, though that intereft would have furvived to the partnerfhip, Byers would have been reduced to 12/. 10;. It was in its nature a joint undertaking. Could and Heath J. of the fame opinion. mi/on %& fcetiueen, &c 33s Wtljon J. — The words -private caj}y t could only mean that the rent fhould not be paid out of the partnerfhip {lock, but the contract: was joint between Dobey and Bethell, as re- lating to a third perfon. Rule difcharged. In a firm or company where the partners are jointly concerned in any trade or bufinefs, the books are kept in the name of the whole, and the (lock being joint, it is understood by merchants that there can be no other method of dating any occurrence, that can happen in trade between the partnerfhip and third per- fons, otherwife than if carried on by a fingle perfon, the company being relatively fo confi- dered by afTuming a title which includes the whole; therefore the mode of traffic muft in all refpefts be confidered the fame between partners and third perfons, as with an indi- vidual merchant and the world. And in all legal proceedings by or againfb partners re- fpe<5ling any joint contract of undertaking with third perfons, it is necefiary that the partners fhould be joined, otherwife advan- tage may be taken of the omiffion. Thus it was ruled in the cafe of Leglife v. Champan!e c * Where there i3 a partnerfhip e 2 Stra, B20. demand, 336 ipartnerl&fp— demand, all the partners Jhould join in the ac- tion, for the contract and undertaking is joint; and if in fuch cafe one partner only brings the aclion, the defendant may take advantage of it at the trial, and nonfuit the plaintiff; for the contract is not the fame : but in the cafe of a tort, this muft be pleaded in abatement. Therefore, in the cafe of Graham v. Robin- fond , where the plaintiffs were partners with two other perfons of the name of Grant ; and they were joint owners of a privateer which cruifed in company with the defendants, un- der an agreement to fhare the prizes equally. They took a prize in the Mediterranean) which was condemned at Minorca, and divided the money arifiqg from the file: the fentence there was afterwards reverfed here, and refti- tution ordered : upon which the -plaintiffs alone paid the whole money, (their partners having become bankrupts) and now fued the defend- ants for the moiety, and they were nonfuit- ed ; for if the money was partnership proper- ty, the acYion mould have been in the name of all the partners-, .if it was their own, each mould have had his own action. Yet, it is held that after a feverance one alone may fue. As in the cafe of Garret v. d z Term Rep. 282. 2 Tav- 30tftitoeei!j &c. j3 ? I'aylcre, where three had employed the de- fendant to fell fome timber for them, in which they were jointly concerned 5 two of them he had paid their exact proportion, and they had given him a receipt in full of all demands; the third now brought his afylion for the remain- der ', being his /hare; and it was objected, that as this was a joint employment by three, one alone could not brino; his action : but it was ruled by Lord Mansfield, That where there had been a/everance, as above Hated, that one alone mi°;ht fue. So it -was held in Kirhnan v. Nezvftead *, where the action was for the ufe and occupa- tion of a houfe, it appeared that the houfe was the property of fix feveral tenants in common ; to all of whom, except the plain- tiff, the defendant had paid his rent.: and this action was for his {hare' of the whole rent. It was objected that one tenant in common alone could not bring this action, but that all ought to join : but Lord Mansfield over- ruled the objection, and the plaintiff reco- vered. Upon an indebitatus ajfumpjit again ft feve- ral, a joint debt on contract mud be prov- e Sitt. G. Hail, Trin. 4 G. 3. MSS. Efp. 117. S Sitt. Weilm. M. 1776. MSS. Efp. 117. Z ed; 33 z partncrfWp- ed g ; for it is different in contracts from what it is in torts, which are feveral, and in which one alone may be found guilty. And there muft be either an exprefs or implied promife to found this action uponh. Notei, That a promife before it is broken may be difcharged by parol agreement : but after it is broken it cannot be difcharged with- out deed by any new agreement, without fa- tisfaction. So k he may give in evidence on the gene- ral iffue, that the plaintiff has a partner, for then it would not be the fame contradt. For the gift of the action is the fraud and delufion that the defendant has offered the plaintiff in not performing his promife, and therefore whatever goes to fhew there was no contract, or that it was performed and releafed, or that there was no ccnfideration, goes to the gift of the action, becaufe there could be no delufion or fraud to the plaintiff at the time of the action brought. S BulIer'sN. P. 129. h Ibid. i 2 Lev. 144. Ca. E. B. £38. 1 Mod. 259. k BullerN. P. 152, So X J$ 'bttlmtih Sec. 339 'So he may give in evidence that the pro- )inife was made by him and another jointly I; though in regard to this there has been fome latitude oflate in the conduct of moft Judges, who will not nonfuit a plaintiff on fuch evi- dence, unlefs it appear clearly that the plain- tiff knew there were more partners than he has brought his action againft, for he gave -credit only to fuch, and therefore the law juay well raiie an ajjumpfti in them only. And in a late cafe, where two perfons were partners, and the plaintiff" dealt with them as fuch, and intitled his account " Cole and Shute" but brought his action againft one only, and was nonfuited at the Affizes ; the Court fet afide the nonfuit, and granted a new trial. Ricev.Sbute m . This was an action brought againft one part- ner only j upon a partner/hip account. At the trial, (which was before Mr. Juftice ■Bathurjl) the defendant gave evidence that there was another partner (named Cole) who was not joined in the action, as a defendant,; 1 Segar and Randal, Mic. 24 Car. 2. » Bur. 2611, 2 Black. Rep. 695. S. C. Z 2 -which 34° partnerHjip— which he ought to have been, as the plaintiff knew the fact to be fo. Whereupon the plaintiff was nonfuited. Mr. Serj. Burland moved (upon the 5th of this inftantM^y 1770), on behalf of the plain- tiff, to fet afide this nonfuit, and to have a new trial. It appeared upon the Judge's report, that the plaintiff could not but know of the part- nerihip; for that all the letters (hewed, and it ■was even ftated upon the very account itfelf, " that Cole and Shute were partners." So that the plaintiff was not Jurprized by the de- fendant producing this evidence of a partner- ship: on the contrary, he had brought his action in this manner againft the prefent de- fendant alone, with a deliberate defign to take fome advantage of him. The Serjeant's objection was, that this matter could not be given in evidence, but ought to have been pleaded in abatement. The Court gave him a rule to fhew why the nonfuit mould not be fet afide, and a new trial had. Mr, 30 between, &g. 34 1 Mr. Serj. Davy now (on this 14th day of May) mewed caufe. He faid, it would be very mifchievous, if a perfon having a demand upon apartnerfhip Jfhould be at liberty to cull out one particular partner, and bring an action againft him alone, leaving out the reft of the partners. In the cafe of Be/on v. Sanford, 1 Salk. 440. the Court held " That all the part-owners of the fhip mull; be joined :" and they gave judgment for the defendant, becaufe all the owners were not joined. This may undoubtedly be 'pleaded in abate- ment, but it is not necefTary that in all cafes whatfoever it mufi be pleaded in abatement : in fome cafes, and under certain circumftan- ces, and partly where it is within the plain- tiff's own knowledge " that there are more partners," it may be given in evidence, with- out pleading it in abatement. Here, the plaintiff knew that Cole was part- ner with the defendant. He was not furpriz- ed by this evidence : he acted with his eyes open, and with a deliberate defign to take an unfair advantage. 2 % u j42 partner^?— If che defendant had pleaded in abate menr,- he mud have fawn who his partners were$. and then the plaintiff, being thus informed who they were, mud have brought a ne-iv action againft them all. But in the prefent cafe, the plaintiff already knew, of his own previous knowledge, " who were the partners :" and therefore he was as much obliged to bring his action originally againft them all, if he had; come at that knowledge only by the defend- ant's plea in abatement. As foon as he knows who the partners are, he is "obliged to bring his action againft them all •, however he may come at this knowledge, he cannot, after having obtained this knowledge, felect one, and omit the reft. Its being pleadable in abatement mews that he cannot omit any one, if in fad there are more than one j and if he does know it before he brings his action, it is more expeditious and mere reafonable, that he (hould join them all at firft. And though it may have been heretofore holden- ft that it could not be given in evidence," yet that was only an opinion at Niji Prius : there never has been any Fuch determination of this Court, or any where elfe in your Lordfhip's time. And if it has been ever holden " that it was fufficient to make the acting partners defendants," the rule has been fince efta- kUlhed* &3 bnWtlh &c. 343 bliihed, c{ that all muft be joined, if known." He therefore prayed that the nonfuit might be recorded. Serjeant Barland was proceeding to fup- port his rule, but was flopped by Lord Mansfield^ as not being neceffary. Lord "Mansfield. — To be fure^ a diftinction is to be found in the books between torts and ajfumpfits : " That in torts, all the trefpaflers " need not be made par:ies : but in actions tc upon contrail, every partner muft be made €t a defendant." Many nonfuits, much vex- ation, and great hindrance to juftice, have been occafioned by this diftinction. It muft have been introduced originally from the re- femblance of convenience, that there might be one judgment againft all who were liable to the plaintiff's demand* But experience lhews that convenience, as well asjuftice, lies the other way. All contracts with partners are joint and fever al : every partner is liable to pay the whole; in what proportion the others fhould contribute, is a matter merely among themfelves. A creditor knows with whom he dealt, but he does not know the fecret partner. He may be nonfuited twenty times before he learns them all ; or driven Z 4 into 344 jDattnetfijfp— ir to a fuit in equity, for a difcovery fC whcf they are." It is cruel to turn a creditor round, and make him pay the whole softs o5 a nonfuit, in favour of a defendant who is cer- tainly liable to pay his whole demand -, and who is not injured by another partner's not: being made defendant, becaufe, what he pays, he mud have cpedit for, in his account with the partnerfhip. Upon this point, I very early confuked the three other Judges of this- Court, Mr. Juftice Denifon, Mr. Juftice Fof- ter 3 and Mr. Juftice Wilmot. They were all of opinion, " that the defendant ought to plead it in abatement , he then muft fay, whtr the partners are." If the defendant does not take advantage of it at the beginning of the fuit, and plead it in abatement, it is a waver of the objection. He ought not to be per- mitted to lie by, and pu*: the defendant to the delay and expence of a trial, and then fct up a plea not founded in the merits of the- caufe, but on the farm of proceeding. The old cafes make no diftinclion between the plain- tiff's knowing of a partnerfhip, or not. Here,. indeed, the plaintiff knew of it j- but the pre- fent defendant was the perfon with whom he- tranfacled. He muft be allowed this, in his account with the other partners. No injufticer is done to the defendant by allowing the plain- tiff &$ between, &c. 54.5 tiff to recover, but great injuftice is done to the plaintiff by allowing the nonfuit to (land 3 and v/hat is ftill vvorfe, a mode of litigation allowed which is highly inconvenient* Mr. Juftice Ajlon concurred. He faid, that hisLordfliip had gone through the wholes he would, not repeat what had been already mentioned, but he obferved that there was no necefilty for admitting it to be given in evi- dence, nor any inconvenience m pleading it in abatement; and the not pleading it in abatement feemed to be a waver of the ob- jection. The cafe in which Mr. Juftice Tales tried the caufe, was a contract about wood, but it was never decided here by the Court. He took notice that upon a joint bond the action cannot be brought againft one of the obligors only. This was the point of a cafe in Michaelmas Term 1750. 24 G. 2. in this Court, which was argued by the late Lord Lifford: the name of it was Homer v. Moore. [I have a note of this cafe.] Non eft.faftum was pleaded, and the jury found it to fc>e the deed of both, Mr. 346 partnei'f&fp— Mr. Serjeant Hewitt moved in arrefl of judgment, upon the face of the declara- tion. Pie acknowledged that it could not have been moved in arrefl of judgment, if it had not appeared upon the face of the decla- ration ; but it there appeared that both had fealed the obligation, and both were living. He owned that if it had not appeared upon the face of the declaration, it muft have been averred. Mr. Ford, who was for the plain- tiff, gave it up, and the judgment was ar- refted. Mr. Juftice Willes and Mr. Juftice Black- Jione being both of the fame opinion, The whole Court were unanimous that the nonfuit ought to be fet afide, and a new trial had. Rule made abfolute. "Where an action is brought againfl two joint debtors, and one only appears, the cre- ditor may have judgment for his whole debt againfl the perfon appearing, and by default, againfl the perfon who does not appear n . > » 2 Atk. 307. If $0 tofoeen, &c 347 If an action is broughc againft one partner ©nly, no advantage can be taken of the omif- fion, but by plea in abatement. Thus in Abbott v. Smith , which was a cafe on indebitatus aJJ'umffit. On general if- fue pleaded, verdict for the plaintiff. It ap- peared on the trial, that the defendant Smith and one Robin/on were merchants in partner- fhip, and that partnerfhip notorious. Tha£ the dealing upon which the prefent a<5tior> was founded was tranfacted between Abbot? and Robinfon only, but upon the partnerfhip account, and that at the time of bringing the action, the partnerfhip was diffolved'. Glynn, fupported by Walker, moved for a new trial lad Michaelmas term, becaufe it appeared upon evidence, that the action was mifconceived, and ought to have beers brought againfl both the partners ; where- fore he infifted, that the Judge who tried the caufe, (Mr. Juftice Nares), ought to have nonfuited the plaintiff. No caufe was fhewn laft term on account of the indifpofition of the Chief Juftice, and o z Black. 947, this 3 4 8 partnecfl&fp— this being a matter of extenfive precedent, it was wiflied to be determined in a full Court. And now, Davy for the plaintiff fhewed for caufe, that it had been already determined in the cafe of Rice and Shute in the King's Benchy Pafch. 10 Geo. 3. That where a man deals with two or more partners he may- bring his action againft any of them at his option, and his leaving out the others is only pleadable in abatement. And this cafe is ftronger than that, for here the credit is proved to have been given to the -partner Jliip account. And therefore as the undertakings of the partners are feveral as well joint, they are feverally liable to an action. 'Tis true there is an old cafe where the contrary doc- trine is laid down, that of Bo/on and Sanford, Salk. 440. 3 Mod. 321. Shower 29. 101. 3 Lev. 258. Carth. 58. There it was argued, that becaufe all the owners of a veflel muft join as plaintiffs in an action againft a ftranger, therefore a ftranger muft join them all when he brings an action againft any of them. But this is a ftrange non Jequi- tur. The owners themfelves know who is owner and who not : a ftranger may not have knowledge* 3$ Detfoeem &c - 349 knowledge. And the authority of this cafe has been fhaken by many determinations at Nifi Prius, and this of Rice and Shute by the Court. It is fit that the defendant fhall be driven to his plea in abatement, if it were only for this reafon, that in a plea in abate- ment the defendant muft name all the part- ners, fo the plaintiff cannot miftake a fecond time. But when given in evidence on the general iflue, the defendant may fhew at flrft one other partner, the next time two, and (o on, to his endlefs vexation. Glyn and Walker ', in fupport of the rule, contended, that this cafe was diftinguifhable from that of Rice and Shute, becaufe there the action was brought again ft the affing partner, whereas here the dealing was with Robinfon, and not with the defendant Smith. You muft admit notice of the partnerfhip, before you can bring action againft a non- acting partner. That all contracts by part- ners are prima facie joint, and require fpe- cial circumftances to make them feveral. It never was the opinion of the Judges in Bofon and Sandford that invifible partners might ftart up from time to time and per- plex the caufe : Their idea extends only to known 3 so pnctnerftip— known and viiible partners, as in the prefent cafe. In Lloyd and Grten, at Shrew/bury Af- fizes, the 4th of Jp-il 1767, the cafe was, that Lloyd fold fome wood to one Wilkinjon? who abfconded : and Lloyd afterwards dif- covering that Gr=een was a partner with Wil- kinfcK) brought an action againft Green. Tales Juftice, held that an action might lie againft Wilkinjon only, or againft Green and Wilkinjon., but not againft Green alone, and that the plaintiff ought to benonfuit: ■but hawever made a cafe of it: which not being let down in time was never argued. As to pleading this in abatement, it is im- poffible. It is a plea in chief: it denies the whole declaration, it fets up a joint contract, where the plaintiff declares on a fevera! one: and therefore amounts to the general iffue. And no inftance of it can be found in the books. It would produce more fraud and confufion, than it can be fuppofed to re- medy. Afterwards in the fame term, Be Gr£y Chief Juftice delivered the opinion of the Court, There ^0 l3CtU3CClt, &c 351 There are two confiderations neceflary for the Court to decide upon in this cafe. 1. The nature of the contract. 2. The manner of the fuit. The laft is confequential upon the former. The contract when made with partners, is originally a joint contract, but may be feparate as to its effects. Though all are fued jointly, and a joint execution taken out, yet it may be executed againfl one only. Each is anfwerable for the whole, and not merely for his proportionable part. Equity mud be called in to make the reft contribute. A creditor, being party to the contract, is bound both by law and con- ference, to do all that is neceffary to effectu- ate the contract. He may fue one of his debtors only : but if the defendant calls on him to make all the reft defendants, he fhall be obliged to do it. It is juft that it mould be fo. 1. That all may afTift in the defence. 2. That all may enter into a rateable contri- bution to pay what fhall be recovered. 3d. To take away all colour and pretence of collufion. Where the fuit is only brought againft one, the law perhaps cannot do com- plete juftice in the fame fuit. I know of no writ of contribution. But in another fuit, for money laid out for the other's ufe, contribu- tion may in effect be obtained. A Court of Equity 352 $3artner(Ijfp— Equity does complete juftice at once, by calling all parties before the Court. So at law, if the defendant means to take advan- tage of the partnerlhip, it ought to be pleaded in abatement : eife it is fuppofed to be wav- ed. As it is for the benefit of the defend ant, lie ought to claim it in the earlieft ftage, and not put die plaintiff to the trouble of making out his cafe, and then bring this objection after. In Bcfcn and Sandford all the Judges agreed, that if the matter could be pleaded in abatement, it ought not to be given in evidence: and Dolben juftice held that it ■might be fo pleaded. Holt and the other two Judges doubted, becaufe it was laid to amount to the general iffue by denying the point of the action. But iurely, faying that another perfon contracted at the fame time that I did, is not faying that I did not contract. In the cafe of joint bonds this doctrine isftrongly fupported, Whelp dale's cafe, 5 Co. 119. Stead and Mohun, Cro. Jac. 152. If mn eft' faff um is pleaded to an action brought againft one obligor, proof of a joint obligor does not vitiate the action. So in Chappie and Vaugban, 1 Saund. 291. ■- 525. reported alfo 1 Ventr. 34. 1 Si- derf. $£ betfoccn, &e. 35J *£r/. 420. and AJcue and Hollingworthy Crc: Eliz. 494. and when the debt is admitted to be due. Willes Juftice — The defendant has had the advantage of the partial payment, and therefore mull be bound by it. AJhhurft and Bulkr Juftices, of the fame opinion. The rule difcharged. The cafe of Bland v. Hajlerig (cited fupra) Was a joint action againft four: the plea, the ftatute of Limitations, and a verdiff, that one of the defendants did aflume within fix years, and that the others did not ; and it was held by PolUxfen Ch. J. Powell and Rokeby (againft: Ventris) that the plaintiff could not have judg- ment againft that defendant who was found to have promifed within the fix years. But ac- cording to the principle in the preceding cafe oOVhitcomb v. Wh\ting> the jury ought to have confidered the promife of one as the promife of all, confequently that all the partners were liable. Acts fubfequent to the time of delivering goods on a contract may be admitted as evi- B b 4 dencc 376 $artner(&fp— d'ence to fiiew that the goods were delivered on a partnerfhip account, if it were doubtful' at the time of the contract: but if it clearly appear that no partnerfhip exift'ed at the time of the contract, no fubfequent act by any perfon, who may afterwards become a part- ner, (not even an acknowledgment that he is liable, or his accepting, a bill of exchange drawn on them as partners for the very goods) will- make him liable in an action for goods fold and delivered ; though he will be liable on the bill of exchange. J G V Thus in the cafe of Saviile v. Rolertjon and Hutchinfon r . This was an action for goods fold and deli- vered, brought under the following orders of the Lord Chancellor, made upon the petition of the plaintiff and others in the bankruptcy of the defendants ; " I do order that the peti- tioner W. Saville be at liberty to profecute fuch action at law as he (hall be advifed for the value of the faid copper, &c. in the de- fence to which action the faid bankrupts are not to fet up their bankruptcy -, and all books, &c. to be produced, &c. and all further di- rections on the matter of the petition are here* r 4 Term Rep. 7x0. Liability, &c 377 by referved until afcer the trial, &c. Dated id Auguji 1790." " I do order that the pe- titioner W. Saville be at liberty to try the faid action for goods fold and delivered, as direct- ed by my order made in this caufe on ad Auguft 1 7 90 ; with liberty, if the Court where- in the faid action fhall be tried fhall think fir, to give- the faid bills in evidence, without ■prejudice to the form of the atlion, as now directed : and all further directions, &c. referved, &c Dated 7th May 1791." At the trial, a fpeeial cafe was referved 5 which ftated as follows :-— In April 1787, the defendants and one Sa- muel Pearce, fince deceafed, and William Ro- bert/on, fince a bankrupt, entered into the following articles of agreement: — Articles of agreement made this 19th of April 1787, between J. Robert/on and J. Hutchinfon, of London, merchants and copart- ners, as well on the part and behalf of them- felves as of others who have or fhall fubfcribe their names on the back of thefe prefents, of the one part, and S. Pearce, of, &c mer- chant, of the other part, &c. Whereas 378 pattnetffjfp— Whereas the faid S. Pearce is the fole owrief and proprietor of the fhip Triumph, &c* and whereas the faid J. Robert/on, J. Hutchin- Jon, S> Pearce, and others, who have fub- icribed their names on the back of thefe pre- fents, have mutually agreed upon a joint under- taking and rifk as to profit and lojs in a certain voyage or maritime adventure about to be performed under the direction of the faid par- ties, who have or (hall have a majority of in- tereft therein, or of a committee appointed by them ; now thefe prefents witnefs that they the faid J. R. and J. H. on behalf of them- felves, and all others who have or fhall fub- fcribe, &c. and the faid S. P. for himfelf, in confideration of the truft which they feveraU ly repofe in each other, and alfo in purfuance of the faid agreement, have and do each for himfelf, his heirs, executors, &c. mutually covenant and agree with each other, &c. ill, That the faid fhip Triumph, whereof the faid S. Pearce is fole owner, fhall from the day of the date, and until her return from her in- tended voyage, be at the difpofal, direction, and rifk of all the parties hereto jointly, at the valuation of 3750/. &c. 2d, That the faid J. R. and J. H. by themfelves and others who have or fhall fubferibe, &c. fhall and will on or before the 24th dugaft next, procure and provide IfaWtttp, &c 379 provide a cargo of goods for the faid intend- ed voyage to the value of between 22,coo/. and 25,000/. and which goods jhall in the judgment and opinion of the majority of the -par- ties to thefe prejents be deemed eligible and pro- per for the voyage and markets ; and that the faid goods fhall be furnifhed or purchafed at the lowed cafti prices, although not payable till the ufual period of credit is expired; the difference between the faid cam terms and the given credit to be made good by giving bonds, bearing interefl from the date of the contract of fuch goods ; and that they the faid J. R, and J. H. and other the perfons who fubferibe, &c. fhall and will prepare and ihip the faid cargo at fuch time and in fuch man- ner as the majority of the faid concerned, or their committee fhall direct. That all addi- tional out-fits of the fhip Triumph, in cables, &c. which fhe may require, &c. after the date hereof, &c. until her voyage be con- cluded, mail be on the joint account, &c. 4th, That in cafe the faid S. Pearce fhall be defirous to increafe his intereft in the faid joint concern, he fhall be permitted fo to do, by (hipping on the joint account as many goods, over and above the goods to be fhipped by the faid J. R. J. H. and others who fhall fub- feribe, &c. as he may think proper : but the faid 3 so ipattnetfljfp— faid goods fo to be (hipped by the faid S. 7 earn are to be fuch articles as the majority of the concerned or their committee Jhall approve of as proper for the voyage and market. 5th, That the faid 3750/. together with the amount of the additional out-fits to be ad- vanced by the faid S. Pearce, the amount of halfof the premiums of infurance to be made by the faid S. P. on the faid (hip, freight and cargo, and fuch amount of goods as the faid S. P. may (hip on the joint account as above- metioned, (hall be confidered as the /aid S. P.' s flour e or capital in the faid joint undertaking; and he the faid S. P. (hall be entitled to re- ceive the profit or bear the lofs thereon, in the exact proportion as the amount of all fuch fums fhall be to the remainder or other part of the faid joint concern ; and that the faid J, R. and J. H. and the fubfcribers, &c. fhall receive the profit, or bear the lofs in the like proportion as to the fums fet oppofite to their feveral names. 6th, Provided that S. P. fhal'l get the infurances effected, and guaranty the folvency of the under-writers, if called upon ; and when the policies are effected, each of the faid parties is to hold his own re- fpective proportion thereof, to the amount of his (hare and intereftin the faid joint concern. 7th, Although the faid S. P. is to procure the wholtf Liability, &c 3O1 whole of the faid infurances on the faid fhip, freight and cargo, yet only half of the premi- ums of insurance mall be added to his inte- reft in the faid joint concern, purfuant to the 5th article : but all the faid parties hold them- felves bound with him to be anfwerable for the whole amount of the faid premiums of infurance, and which is to be a charge on the voyage. 8th, That S, P. (hall be the fhip's hufband to fuperintend fuch out- fits of the faid fhip as the majority, &c. fhall deem ne- ceflary. (The 9th, relates to a fchedule of the (hip's tackle, &c.) 10th, That all money received on account of the fhip, &c. fhall be paid to the fuper-cargo on the joint account, I ith, That in cafe the faid S. P. fhall want the afliftance of the faid J, R. and G, H. or the fubfcribers, &c. to procure him the loan of any money to enable him to complcre the out-fits, they engage to procure him 50b/. to be repaid by him in manner as therein fli- pulated. ( j 2th, Not material.) 13th, That from and after the faid fhip fhall leave the port of London, all the expences on the voy- age fhall be paid by the fuper-cargo or agent for the faid joint concern, who fhall be lup- plied with money for that purpofe, or be em- powered to pay the fame out of the proceeds •of the cargo. And if the faid fuper-cargo, during 3 % 2 jpartttecfWp— during the voyage, is under the neceffity of drawing bills on either of the faid parties for the fame, or he fhall think the drawing fuch bills more beneficial to the joint concern than reimburfing himfelf out of the faid proceeds, then each of the faid parties interefted in the faid maritime adventure fhall bear and pay his refpective portion of fuch bills. 14th, That the parties hereto, or a committee, fhall appoint officers of the fhip. 15th, That when the fhip is ready laden for fea, and pre- vious to her failing, J. R. and J. H. fhall deliver an invoice of her cargo to the fuper- cargo, who fhall enter the fame in proper books j and each party interefted fhall be therein credited with the amount of his re- fpective accounts, and the fuper-cargo fhall prepare a flatement of the whole amount of the faid fhip, out-fits, cargo, and charges, de- claring the exact proportions or fhares which each perfon hath in the voyage, which fhall be figned by each of the parties, and fhall be a voucher for afcertaining the faid fhares hereafter, in profit and lofs. 1 6th, Th3t in cafe of any difference between any of the par- ties interefted, it mall be referred to arbitra- tion. 17th, That each party fhall bind him- felf in the penal fum of 2000 /. for the per- formance of the articles.— Signed and fealed bv JLfabflitp, &c 3 3 3 by J. Robert/on, J. Hutchinfon, S. Pearce^ and W. Robert/on. On the 28th July 1787, the following me- morandum was indorfed on the faid articles by the fame perfons : " Notwithstanding what may be underftood to be the meaning of the foregoing articles, it is hereby declared by all the parties that the minute made on the 26th June laft, and figned by us refpecting each of us, holding the proportions of one quarter each, that is to fay, Robert/on and Hutchinfon one half, and S. Pearce and W. Robert/on one quarter each, it is now fully to be confidered and underftood that that mi- nute is now declared null and void, and that each party whofe name is hereunto fubfcribed is to hold no other fhare or proportion in the faid concern than the amount of what each feparately orders and fhips ; and which inte- reft will be hereafter declared, agreeably to the true intent and meaning of this agree- ment. And it is further declared that the orders given for the cargo and out-fit of the fhip, are to be each feparately paid ; and that one is not bound for any goods or (tores or- dered or fhipped by the other. And that the faid S. Pearce has free liberty to (hip what goods are fuitable for the voyage, over and above 3§4 JEtertnct&jfp— above the fhip and out-fit, leaving room Henry Hewett f and William Ralph/on were " merchants and partners ; Hewett lived in " London, and Ralph/on at Venice, and became " juftly indebted to John Upton : Hewett com- " mitted an a£t of bankruptcy : Upton ftated //told Street, " that they were for the defendant": and they were fo booked at the warehoufe. But though the goods were fent to the warehoufe before Ifaac Scott's act of bankruptcy (viz. his abfconding and not returning;) yet the defendant did not then know that they were there : and he did not declare his acceptance of them, till after that time. The plaintiffs were affignees in a joint eommiflion which afterwards, on the 12th of April, iffued againft both the Scotts, Anne and Ifaac. Sir Fletcher Norton and Mr. Dunning Solicitor General, infifted that the defendant was intitled to retain the moiety be- longing to that partner, who did not become bankrupt till after Rcllefton had declared his acceptance of the cochineal ; though there was afterwards, a joint eommiflion againft both. This act of Ifaac bound both partners. His fubfequent bankruptcy could only affect his* own Ihare in the partnerfhip eftate : it could only 4*6 paunctOjip— only afreet the mother's. Rollefton ftands in the place of the mother: and before her bankruptcy, he was joint partner with the affignees of IJaac in this cochineal; and had an undivided moiety in it. Befides a trader may prefer one creditor to another, before any act of bankruptcy. And here is no fraud or collufion in the defendant. Confequently, the joint affignees againft mother and fon can- not maintain this action of Trove*- againft Rollefton for the whole of thefe goods. Mr. Morton and Mr Wallace contra, for the afilg- nees under the joint cornmiffion. The mo- ther's moiety was bound by ffaae's bankruptcy. All the joint effects are bound by the bank- ruptcy of either partner, the mefienger under the joint commiiTion of bankruptcy might have feized the whole, if they had remained in their warehoufe. Since a delivery as this was, un- der a private order of IJaac, unknown to Rollefton, and unknown to Anne Scott, was no fale to Rollefton. The goods were not appro- priated to him, till -after Ifaac Scott's ban- kruptcy: and after his bankruptcy, he had no right to fell. Ks could not, after that, bind the partnerfhip effects. Rollefton took the goods under the bill of parcels which was fent by Ifaac from Dover; at which time he was a bankrupt : and confequently, Atme Scott's altering, &c. 4^7 Scon's (hare was liable to be feifed under the commiflion againft IJaac. On the other fide it was urged in reply, that IJaac Scott had, at the time of the act done, a right to difpofe of the goods : his act was the act of both IJaac and Anne. His fubfequent bankruptcy, only refcinded his intereft, but leaves Anne's inte- reft in Rollejlon. The affignees of IJaac, and fhe, were tenants in common of the goods. The Court muft confider it as if Anne had ne- ver become a bankrupt : for Rollejlon flood in her place. The act of IJaac, when both partners were folvent, was, the act of both partners, and bound Anne's fhare as well as IJaac 's. Therefore her fubfequent bankrupt- cy fignifies nothing : for her affignees can only ftand in her place. Street** warehoufe was a pu- blic warehoufe. And as foonas Rollejlon figni- fied his afTent to the contract, it xvzs perfefted. Indeed IJaac's fhare was gone, by his prior bankruptcy: but as to Anne's fhare ; the con- tract was perfected, and Anne's fhare was bound by it: and on the 30th of Marc/', (which was prior to Anne's bankruptcy) Rollejlon was intitled to her fhare. Lord Mansjield — " under a joint commif- fionj the commiffioners aflign the effects of both. 428 "gartnerftfp— both. On an application ex -parte Turnery in March 17^1, it was holden, that the joint commiffion carries all the effects, both joint and feveral p. Confider, here, the effect of booking the cochineal on the 26th March, in the name ofRollefton ; and whether it does not go to the whole. And the fubfequent affent, if it does any thing, rnuft go to the whole. The aiTent could not be good for part j and not good, for the other part. But the affent was to nothing at all. The depoffc was not completed, antecedent to the 30th cf March. I was clear at the trial, that this affent could not be good for the whole ; be- caufe there was nothing to affent to : nor did Rollejlon in fact affent to any thing but the falfe bill of fale fen t to him from Dover. And that bill of fale was after the act of bankruptcy committed by Ijaac Scott. Therefore he eould not then affect the partnership; which was at an end, by the bankruptcy. And Rollefton's affent was to the falfe bill of fale, lent to him to make him a creditor upon a falfe foundation of a dealing upon fpecula- «ion. M Mr. Juftice Yates — Ifaac's contract muff bind (he whok 3 or not operate at all: it could p 1 Atk. 97. not 4 flltcrino;, &c 429 not be good for one part, and not for the other. His aft was not complete upon the 2.6rh March : it w 'as revocable till Rcllejtcn's affent; and he mult afient to the whole contract, ifheaflent- ed at all. All Ifaac's power was gone, when he wrote from Dover. His act of bank- ruptcy DISSOLVED THE PARTNERSHIP. The aiTignees of IJaac could never be faid to be partners with Anne the other partner. The tranfaction is void, and feems a fraud: there is no account ftated ; a voluntary depo- fit is made, to favour Rollejlon. Therefore Ifaac's a6t was void, and had no effect on the moiety belonging to Anne. Mr. Juftice Ajlon and Mr. Juftice IVilles were of the fame opinion. 43° CHAPTER XVI. 35? DeatD. PARTNERSHIP is alfo diflblved by the death of one of the partners : for, altho' partnership may be entered into by the confent of many, neverthelefs it muft be diflblved by the death of one, unlefs fpe- cial covenants were made to the contrary at the time of forming the partnerfhip a . And it would be unreafonable if it were other- wife ; for it might have been entirely owing to the induftry or fkill, the knowledge or the capital of that particular perfon that the partnerfhip contract was concluded; or thefe might have been the chief confiderations which firft induced the parties to treat about, or enter into fuch an engagement. And partnerfhip being diflblved as above Stated, by the death of one partner, his exe- cutor or adminiftrator enters of courfe into all the rights of the perfon to whom he fucceeds, yet fuch executor or administrator of a part- ner not being a partner himfelf, has no right a Juft. Inft. lib. 3. tit. 26. 3 t<> SIterfng;, &c. 43 % to interfere with the partnerfhip concerns in the quality of a partner. But at the fame time he is entitled to the profits which would have fallen to the fhare of the deceafed. So it has been determined, that the death of a partner, unlefs it be fpecially provided againfl in the inftrument conflicting the copartner- fhip, dijfohes it, and it fhall not fubfift for the benefit of an executor : the reafon of which is faid to be, that prima facie this fpecies of contract is entered into on the ground that both parties have fkill in the bufinefs in which they engage, but an executor may have no fkill therein : \et a temporary diforder, as lu- nacy, intervening, if there be a profpect of recovery, is no ground for diflblving a part- nerfhip. Thus in the cafe of Pearce v. Chamberlain* at the Rolls, Oolober 30th, 1750, which is re- ported as follows!?. Articles between Robert Plummer and Da- niel Pearce recited, that Plummer had carried on the trade of a brewer, at Hoddefdon, and had employed Pearce as a fervant and brew- er; who having behaved himfelf faithfully, &c. and advancing a moietv of the value of 'a 2 Vez. 33. the 43* gartiterljfp— the effects, he took him into partnerfhip for nine years, if Pearce fhould fo long live -, but if he lived to the end of the nine years, the partnerfhip fhould continue for any further term not exceeding twenty-one years, as Pearce fhould defire, on giving notice to con- tinue it. It was provided, that notwithstanding the death of Plummer, it fhould be carried on by his reprefentatives j and that if Pearce fhould give that notice, he fhould not have it in his option to'pay off the reprefentatives of Plummer, and carry it on himfelfj but with them. This bill was by the widow and reprefen- tative of Pearce, againft the reprefentatives of Plummer, for an account, and for liberty to carry on the trade with the defendants. For the defendants was cited Godfrey v. Browning, 17th Mar. 1742, where it was held, that one copartner could not appoint a repre- fentative to carry on the trade after his deceafe * otherwife it might fall to the lot of an infant or perfon not at all fit to carry it on -, and Baxter v. Burfield, B. R. Pafch. 1746. where it was held, that a covenant to teach a boy his trade was refcinded by the death of the matter, on the ground that it was a bond to fervc Altering;, &c 433 ferve perfonally, and that he was not bound to ferve an executor. For plaintiffs. It might be fo where it is a general parrnerfhip j for then the death of one partner would determine it : but not fo where a particular term has been agreed on: but if there was a cafe for that, it would not do here ; becaufe the provifion for the repre- sentatives ought to be mutual ± and fhews, they did not guard again ft an infant's carrying it on. No cafe is cited to fhew, that all part- *ierfnips muft continue or conclude on the living or death of the principals. On the death of the m after the boy cannot become apprentice by a counfe of reprefentation, as then it might be to the moft ignorant perfon: but that is different from articles of copart- xierihip in a beneficial trade, wherein a right has been purchafed far a period of years. In the cafe of Huddle/ron., one party was a luna- tick, who could not carry on the trade; yec Lord Talbot thought himfelf bound by the ar- ticles, and obliged the other to carry it on for the benefit of himfelf and the lunatick. Majler of the Rolls. — " Confidering the whole frame and defign of the articles, Pearct was only admitted in cafe of Plummer t and Ff for 434 pattiterfljfp - for his (kill in the trade ; and after that end was defeated by his death, it could not be the intent that any representatives of him (hould have an opportunity to carry it on, as it might fall into fuch hands as could not be of fervice : and though it might come to the rc- frejentatives of one, and not of the other, that is, by exprefs provifion of the parties, therefore on the articles, the plaintiff is not entitled to a decree to carry on the partner- ship. " But as a general queftion, the confe- quence with regard to trade weighs greatly with me. It would be of ill confequence in general to fay, that in articles of partnerfhip in trade, where no provifion for the death of either is made, they might fubfift for benefit of an executor who may not have ikill there- in. The ■plaintiff could be of no ufe in car- rying on the partnerfhip. Plummer wanted one whofe knowledge he could confide in. The plaintiff, the administratrix, is entitled to one third, the infant to the other two (hares. Her inteftate might be indebted, and the ef- fects wanted to be diftributed. It is impro- per therefore to fuffer fuch a conflrucTion, unlefs the parties provide for it. I remem- ber that cafe in B. R. It was an action againft Sltcrtoff, &c v 435 againft the furety in a bond conditioned for performance of the articles : the matter, to whom the youth was bound, di.'d; the exe- cutors thought they might make fome bene- fit of his time, and their view was therefore ROC to have him perfonally their fervant, and to inftruct him farther in the trade, but to put that benefit of the infant's fervice into their ow«n pocket. The Court confide ring the inconveniencies attending apprentices, or trade in general, if infants were obliged to ferve executors or adminiftrators for remain- der of the term, although not of the fame trade with the infant, determined it for the defendant, that the a£lion would not lie. I alfo remember Huddlejlcns cafe ; and am pxetty certain (though not very pofitive) that he was under a great drjeftion of mind, fo that a commifiion was applied for; but be- fore that q.ueftion came before the Court, he had recovered himfclfj and was dcfirous to carry on the partnerfhip. The Court faid, thele were accidents that could net be pro- vided for; but that was no reafon, when he Jhad brought all his fubftan.ee into trade, the other partner fhould fay, that a temporary d.iforder intervening fhould deprive him during life from going on with the bufineis, and that he mould put the whole benefit of the F f 2 partner- 43$ paetuccnjfp- partnerfhip into his pocket, without account- ing for it. So that the Court held, he had not forfeited the benefit under the partnerfhip, but fhould, notwithstanding that accident, be confidered as a partner. That cafe depend- ed entirely on that circumftance ; and there was a profpect of his recovery. It may be alfo noticed in this place, that partnerfhip is diffolved by forfeiture upon an attainder of felony or treafon, which is, in contemplation of law, the civil death of the attainted partner, and has the fame efFect with regard to the partnerfhip as natural death. For fuch perfon having no capacity to act, he is with regard to the partnerfhip as if he were really dead ; and his property being con- filcated, his fhare is of neceffity withdrawn. And it is in general true that partnerfhip may be altered or put an end to in all the fe- veral ways, above fet forth. But, although the foregoing will be found to hold good as general rules applicable to moft cafes, con- cerning the dififolution of partnerfhip, and the manner in which the engagements of part- ners defcend to their executors or adminillra- torsj yet there are exceptions, fuch as the partRerfhips of farmers, for inftance, in which it Bttetfllff, &c; 437 it is neceflary to diftinguifh two kinds of en- gagements j one of the partners among them- felves, and the other of all the partners to the perfon of whom they take a farm. For fince this laft engagement defcends to the executors or adminiftrators of the partners c, it is a neceflary confequence that being under a common engagement to others, they muft be mutually engaged to one another. And if this tie does not make the perfonal repre- fentatives and the furvivors copartners in like manner as thofe are who have voluntarily chofen one another, yet it has this effecl:, that the executor, or administrator of a farmer be- ing bound to perform the conditions of the leafe to the leflbr, and having the right to manage the farm, or to caufe it to be manag- ed for his advantage, this right, and this en- gagement diftinguilhes his condition from that of the executors and adminiftrators of partners, in other concerns j inafmuch as he cannot be excluded from reaping his fhare of the benefit of the farm, even although the partners had not begun to manage it before the death of the partner to whom he fuc- ceeds. c Leafes for years being chattels, go to the executor. Doctor and Stud. lib. i. c. 7. and c. 24. F f 3 And 4 j8 partncrtlj!?- And this do&rine feems to be confonant with the general rule refpecting the right of Survivorship among partners; for fines every man has a natural right to the fruits of his own employment,, fo alio is there a power vefted in every man to difpofe of fuch fruits* whether engaged in a partnership concern at the time of his death or not, it being agree- able to natural juftice that the fruits of every man's trade fhould defcend to his reprefenta- tives, for the benefit of his children and fami'- ly. Hence it is that our laws have eftablifh- ed the falutary rule that there fhall be no be- nefit by furvivorfnip in copartnerfhip deal- ings & •, and which feems alfo to be founded on the Laiv Merchant, for we find in Littleton e, that " the wares, merchandizes, debts, or du- ties of joint merchants or partners, fhall not furvive, but fhall go to the executor of hira thatdecealeth 3 and this is per legem mercatori* am, which is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is fro bono pub^ licoi for the rule is, that jus accrejeendi inter* mercatcres. pro benefcio commercii locum non ha- let.'" And this rule extends to all. mer- ..d 1 1 Co. 3. b. 2. Ro. Abr. 86. b. 2. e Co. L. 382. a. chants SUtctfttn;, &c. 439 chants and traders, though they do not go beyond fea f . And per Coke : There are four forts of merchants, viz. adventurers, dormant, tra- velling, and refident ; and neither of them mall take by furvivorfhipg. Therefore it has been held that the execu- tor of the deceafed (hall join with the furviv- ing merchant for goods carried away in the life-time of the teftatorh. Bub. whether necelTary ? For the remedy furvives, though the duty does not furvivei. And though there is no furvivorfhip between merchants, yet if there are two joint merchants, or two who are jointly poiTefTed of goods in the way of trade, who cafually lofe them, and after- wards one of them dies, the furvivor alone may, it feems, bring trover for them, for the action muft necefifarily furvive, though the intereft doth not, otherwife there would be a failure of juftice j becaufe the furvivor and f 2 Brownl. 99. % 20 Vin. Abr. til. Survivorfhip. D. 2 Brownl. 99, in nata there, h Lutw. 1493. 1 Show. 189. Salk. 444. F f 4 ehe A4P $3attncrfl)ip— the executor of him who is dead cannot joir> in the action, for their rights are of feveral natures, and there muft be feveral judgments ; but it being held clearly, that if this was any plea, it muft have been in abatement, for which reafon the books fay k r the principal point was not determined. If where there are two joint traders, and one dies, and the furvivor carries on the trade after the death of the partner, the furvivor fhall anfwer for the gain made by this trade. Per Lord Keeper Ilarcourfy Eajt, 1711. Erozvn v. Litton 1 . In this cafe the plaintiff's teftator was cap- tain of a fhip, and being on his voyage be- yond fea, had 800 dollars on board the fhip, which he intended to inveft in trade; the captain died, and the defendant (who was mate cf the fhip,. becoming captain, took thefe 800 dollars, and invefting them in trade,, made great improvements thereof; but on his return to England;, the executrix of the firft captain brings a bill againft him for an> account. k Carth. 170 — 1. Kemp & Andrews. 1 Show. 188.. Comb. 474. 3 Lev. 290. S. C. 1 1 P. Will. 141. 10 Mod. 20. 2 Eq. Ca. Abr. 5. pi. 5. 722. pi. 2. S.P. The- flltm'Uff, &C 441 The defendant admitted the receipt of the money, and offered to re-pay the fame with intereft; whereas the plaintiff infilled on the profits produced in trade, and the feveral inveftments that had been made therewith. Objection. — The defendant having traded with this money, it was at his rifk and peril ; and as, had it been loft in trade, the defend- ant muft have borne thatlofs; fo it is reafon- able, on the other hand, that the profit which has been made of it mould belong to himj as where an executor puts out money with- out the decree of the Court, if this be loft, it is at his peril, and therefore he ought to have the intereft. Lord Keeper faid, that he took the de- fendant, in this cafe, to be more like a trus- tee than an executor, and if fo, he ought clearly to account for the profits made of the money; that the primary intent in carrying abroad his money was, to inveft it in trade, and not to return with it home again ; and therefore, the defendant having obferved the intent of the teftator in trading therewith, and having taken fuch a prudent care in .the management of it, as (it might be prefumed he would have taken of his own money) his Lord (hip 442 ipattnetlWp— Lordfhip apprehended the defendant would not have been liable to anfwer for any lofs that might have happened ; and compared it to the cafe of two joint traders, where, if one dies, and the furvivor carries on the trade after the death of the partner, the fur- vivor {hall anfwer for the gain made by this trade* The Court obferved, that this being an ifland, all imaginable encouragement ought to be given to trade, and fuch conitruction was for the benefit of him who carried out this money with that intent j and there was no reafon that his death mould fo far injure his family and relations, as to deprive them of the benefit which might accrue from it in the way of trade. But that, to recompence the defendant for his care in trading with it, the Matter mould fettle a proper falary for the pains and trouble he had been at in the management thereof; and in the mean time cofts to be referved m. The diftin&ion made between joint-tenants and co- partners in refpecl: of furvivorfhip by the laws of England is, that furvivorfhip re- ■> Reg. Lib. A. ij 10. fol. 660. gularly flltCCftUJ, &c. 44J gularly takes place in jointenancy, unlefs there is a fpecial agreement to the contrary, but not in a partnerfhip amongft merchants n. And Courts of Law will take notice of the lex mer- catoria without its being fpecially pleaded with refped to this general cuftom. For in the cafe of Bella/is v. Hejler°, Powell Juftice faid, " That the Court would take notice of the lex mcrcatoria> as that there is no furvivorfhip." And in articles of co -partnerfhip between merchants it is not neceflary to provide againft furvivorihip. Thus in the cafe of Jeffereys v. Small?, Lord Keeper faid, " The cuftom of mer- chants is extended to all traders, to ex- clude furvivorfhip." And in a caufe for an account of a co- partnerfhip, both partners being dead, a re- ceiver fhall be appointed q. a t Inft. 182. a. • 1 Id. Raym. 281. P 1 Vera. 217. <\ 2 Brown, *7 2. APPENDIX. [No. i.J 9CcticTe0 of Copnctttecfljfp, For carrying on a Joint Trade. ( Common Form. ) Q( 1R1£3 of agreement indented, &c. be- Xv tween A. B. of of the one part, and C, D. of of the other part. Firji, The faid A. B. and C. D. have joined, and Parties join bv thefe prefents do join themfelves to be copartners ln ">P a "/ i • i i /• jiil- nerrhip for together in the art or trade of and all things vears . thereto belonging ; and alfo in buying, felling, vend- ing and retailing all forts of wares, goods and com- modities belonging to the faid trade of which faid eopartnerfhip is to continue from for and during, and unto the full end and term of from thence next enfuing, and fully to be compleat and ended. And to that end and purpofe, he the faid Eachhasde- A. B. hath, the day of the date of thefe prefents, deli- liveiedin 7 J * * money> as vered in as flock the fum of and the faid C. D. ftock, to be the fum of to be ufed, laid out and employed in laidoutj&c. common between them, for the management of the faid trade of to their mutual benefit and advan- tage. And it is agreed between the faid parties to thefe prefents, and the faid copartners each for him- felf refpeCtively, and for his own particular part, and for his executors and adminiftrators, doth feverally Not to ufe and not jointly covenant, promife and agree, to and * heir ! :rado J ' ' # r o » f or private with the other partner, his executors and adminiftra- t, ener i t} tors, by thefe prefents, in manner and form following (that is to fay) That they the faid copartners fhall not nor will at any time hereafter ufe, exercife or follow the trade of aforefaid, or any other trade what- 4 foever, 12 APPENDIX. foever, during the faid term, to their private benefit or advantage, but (hall and will from time to time, and at but fortheit all times during the faid term (if they fhall fo iong joint inte- )j V e) do their and each of their bed endeavours in and by all means pollible to the utmoft of their fkill, pow- er and cunning, for their joint intereff, profit, benefit and advantage, and truly employ, buy, fell and mer- chandize with the ftoclc aforefaid, and the increafe thereof, in the trade of aforefaid, without any finifter intentions or fraudulent endeavours whatfoe- Shop rent, ver. And also that they the faid copartners {hall and will from time to time, and at all times hereafter du- ring the faid term, pay, bear and difcharge equally be- tween them the rent of the {hop which they the faid copartners fhall rent or hire for the joint exercifmg or Gain. managing the trade aforefaid. And that all fuch gain, profit and increafe that fhall come, grow or arife for or by reafon of the faid trade, and joint occupying as aforefaid, (hall be from time to time during the (aid term equally and proportionably dividtd between them. Loflea. the faid copartners, (hare and fhare alike. And also that all fuch lofs as fhail happen to the faid joint trade by bad debts, ill commodities, or otherwife, without fraud or covin, {hall be paid and borne equally and Books of proportionably between them. And further it is acc0UI * ' agreed by and between the faid copartners, parties to thefe prefents, that there fhall be had and kept from time to time, and at all times during the (aid term, and joint occupying and copartnerfJiip together as aforefaid, perfect, jufl: and true books of account, wherein each of the faid copartners {hall duly enter and fet down, as well all money by them received, paid, expended and laid out in and about the manage- ment of the faid trade, as alfo all wares, goods, com- modities and merchandizes by them or either of them bought and fold, by reafon, or means, or upon ac- count of the faid copartnerfhip, and all other matters and things wharfuever, to the laid joint trade, and the ruanageme&t thereof, m any wife belonging or apper- taining ; APPENDIX, it taining; which faid books (hall b« ufed in common between the faid copartners, To that either of them may have accefs thereto without any interruption of the other. And also that they the faid copartners, Settling ac- once in three months or oftencr if need (hall require, coums co-partner- nant, promife and grant, to and with the laid A. B. /hip fhall do his executors and adminiftrators by thefe prefents, his endea- th t Re {h f ; d q jy fta] j d jjj frQm f j { t j »ours fri . * managing during the faid co-partnerfhip, ufe his utmoft endea- the joint vours, care and diligence to manage the affairs of the faid joint trade, and to increafe and improve the Agreement faid joint ftock thereof to the beft advantage. And ? s . to ^ e b it is agreed by and between the faid parties to and pro- thefe prefents, that all fuch monies belonging to the 35nDcnture tripartite, made, &c. between is. £7. of of the 1 ft part, M. C. of of the ad part, and S. C. of of the 3d part, WITNESSETH that the faid E. C. M. C. and 5. C. for the mutual That for the love and afFe&ion they have and bear to each other, ^"^j^ 6 and having had experience of each others care anddence. fidclitj, and in confidence thereof for the future, and the better to improve their refpeclive eftates, have agreed, and by thefe prefents do agree toAgree tobe become copartners in the art or bufinefs of milliners, c0 P Mtners - for the term of 7 years, to commence from (if the faid parties (hall fo long live,) with the joint frock of 600/. tobe raifed and brought in Stock ' manner following, and to be managed and carried on for their mutual benefit and advantage, at their own dwelling houfe in . And for .that end and purpofe, Covenan < T r k j \. jthathoufe- 1t is mutually covenanted, confented to and hdd ds agreed by and between the faid parties to thefe pre- and wares be fents, that the feveral houfehold goods, wares and valuedat * merchandizes mentioned and comprifed in the in- ventory, &c. fhall be valued and reckoned at the faid fum of 600 /. and mail be by them allowed, deemed and taken as fo much money, being the whole money T , . intended to be the faid joint ftock. And that they an d true to the faid E. C. M. C. and S. C. (hall and will be juft, each other. true and faithful each to the other, in all buyings, fell- ings, accounts, reckonings and dealings together, concerning the faid copartnerfhip, and (hall and will mutually endeavour by all just care and diligence, to advance and promote the faid joint trade and ftock, ay reot * G g 3 with- * APPENDIX, without fraud or collufion. And they {hall equally bear and allow each an equal fhare and proportion, for or in refpecl of the rent of the houfe they now dwell in, and of fuch yearly rent of any other houfe or lodg- ing, which they (hall hereafter think fit to take or houffkeep- rent during the faid copartnerfhip; and of all charges ing.fcrvants of houfekeeping, fervants wages, and parifh rates and talTe^aii ^ uties > ant * °^ a ^ taxes and afleftments whatfoever, between which (hall be rated or afTefTed on them the faid E. C. them. M. C. and S. C. or any or either of them in refpectof their faid houfe or lodgings, trade or employment, dur- lo/ies a"! ' n S ^ eiv ^'^ copartnerfhip. And also of all lofles, cxpences. cofts and expences which fhall at any time happen, or be occasioned by or by means or in refpe£t, of the faid joint trade during the faid copartnerfhip, (fubjecl: neverthelefs to the provifos and agreements herein after mentioned,) without each others neglect or wil- ful default, which (hall be from time to time paid and fuftained out of the faid joint-ftock, or the proceeds Books of arifmg thereby. And that during the faid copart- fceVept. nerfhip, one or more book or books of account fhall be kept, at the place where the faid trade or employ- ment fhall be carried on and managed, wherein en- tries fhall be w.iade of all fuch ready monies or goods as fhall be brought into or employed in the faid joint flock, and of all goods by them bought or fold on ac- count of the faid joint trade, and of all debts by them contracted in relation to the faid copartnerfhip, and an account fhall be likewife taken in writing of all ready money by them received in their faid way of trade, and of all goods by them fold upon credit; and entries fhall be made of parties' names, to whom fuch goods were fold, and at what rate or price, and alfo of what fum or fums of money fhall be from time to time taken out, by the faid copartners, or either of them, or their order, for defraying the expences of their family and fervants, or in any otherwife relating to the faid copartnerfhip; which faid books the faid copartners, and their rcfpective executors and adminiftrators fhall free- APPENDIX. xi ty, and at all convenient times, as well during the con- tinuance as after the expiration of the faid copartner- fhip, have liberty to refort to, infpedt and perufe when and r <• rt_ 11 ■ A • • c ^i_ And copvs as often as occanon lhall require. And it is further t hereoi x^t agreed by and between the faid parties to thefe pre- be made. fents that the faid copartners (hall upon fuch occa- ilons have liberty to tranfcribe a copy of all, or any part of the account therein mentioned, without the let, hindrance or denial of each other. And that all &(: . ^ he ' bonds, bills, notes, fpecialties, or other fecurities ta- taken in ail ken by the faid copartners, or either of them, for any their nm ^ ts - debt or debts contracted on accountofthe faid joint trade or employment, {hall be made and taken in the names of all and every the faid copartners, and for their joint ufe and benefit; and be by them depofited in fome convenient place, where the faid trade fhall be carried on and managed, to which either of the faid copartners fhall have a liberty to refort as occafion fhall require. And that it fhall and may be lawful, to Of* taking and for the faid E. C. M. C. and S. C. or either tfjJSSi them, with the approbation of each other of them, and not otherwife, to have and take in turns, one or more apprentice or apprentices, or covenant fervant, to be employed in and about the bufineis of the faid joint trade, taking good fecurity for the fidelity of fuch apprentice or apprentices, or covenant fervant, and for their good demeanour during their continuance in the faid employment, fo as fuch apprentice, appren- tices or covenant fervants fhall be at the command of all and every of the faid copartners. And that all M° ni <" s t.i- monies to be had and taken with any fuch apprentice prentices * P " or apprentices, or covenant fervant, fhall be brought &c. into the faid joint (lock, and employed during the continuance in the faid copartnerfhip, for the mutual benefit of the faid copartners, and then to be account- ed for and anfwered to the party to whom fuch ap- prentice fhall be bound. And if fuch apprentice or i m beii. covenant fervant fhall imbezil, wafte, purloin and mmrhy a P . fyoll any cf the faid goods belonging to the faid copart- P rentic «s« G g 4 nerfhip, xii • APPENDIX. nerfhip, and the fecurity taken for the fidelity of fuch apprentice or fervant, fhall not be refponfible to anfwer the damages or lcfs which fhall happen thereby, that then fuch lofs or damage fhall be fuftained and borne out of the faid joint frock, or the proceeds arifing _ thereby. And it is further agreed by and between the One not to . . J . r . ° * . . trufttoabove faid parties to theie prelents, that neither of them 51. without the faid E. C. M. C. and S. C. fhall not at any time conient- 6 " or t ' mes hereafter, during the continuance of the faid copartncrfhip, fell or deliver out upon truft, and without ready money, any of the goods employed in the faid joint trade, to the value of 5/. or upwards, or fruit out, or lend any money out of the faid flock above the value aforefaid, to any perfon or perfons what- foever, without the confent of each other, nor with- out each others confent, releafe or difcharge any debt or fum of money, which fhall be due or owing to them on their joint account, or any part thereof, or , , any fecurity given for the fame ; but only fuch, and fo and com"- much as fhall be actually received, and brought into pounding for the joint ftock; nor compound or agree to accept deins " part for the whole of any debt or fum of money to them jointly, owing or payable, without the confent and approbation of the other of them thereto, in writ- ^rt. • t ing fir ft had and obtained. And that neither of the Ofbejngfu- to * . reryorbiii. faid copartners mall at any time during the continu- ance of this copartnerfhip, and before a final partition made between them, become bound, bail or furety for, with, or to any perfon or perfons whatsoever, either by bond or bill, promife or otherwife, without the privity or confent of the other of them thereto in ~ writing fufc had and obtained. And it is further To account to ■ • . r - iwipeayear. agreed by and between them the laid h. C M. C. and S. C. that they fhall once in every year yearly, during the faid copartnerfhip, at the feaft of or within twenty days then next enfuing come to a fair, plain and perfect account and reckoning with each other, of, for and concerning all matters relating to ths laid copartnerfhip, [tr fay, all their buyings, 1 fellings, APPENDIX. xiii fellings, tradings and dealings for, upon, or by reafon of their joint account, and relating to their faid co- partnerfhip, and of every fuch flocks, ready money " • and things as concern, or then ihall be employed ia « and about the fame, and of the gains, profits and in- creafe thereof; and alfo of the charge, damage, loffes, and expences happening or acruing thereby, and like- wife of all debts owing to and by the faid copartners, for, upon, or in refpe& of their faid joint trade and dealing] to the intent it may appear how and in what ftate and condition they then ffand in reference to their faid copartnerfhip and joint ftock ; and that upon the finifhing and perfecting of every fuch account, the fame lhall be fairly written and entered in three feveral books for that purpofe to be provided, all three of which faid books fhall be fubfcribed by the faid E. C. M. C. and S. C. and one of them fo fubfcribed fhall remain with the faid E. C. and one of them fo fubfcribed fhall remain with the faid M. C. and the other of them fo fubfcribed fhall remain with the faid S. C. which faid accounts fo pafled and fubfcribed fhall not be called in queftion or controverted, unlefs fome fpecial error or mifbke fhall evidently and plainly ap- pear to have therein efcaped notice, and that the fame error fhall be certified in the life-time of ail the faid copartners, and not otherwife. And also that countw ith^ within forty days next, after the expiration of the faid in 40 days, copartnerfhip, a true and general account fhall be &c> made of all their dealings on account of their joint ftock, and a juft and equal partition fhall be thereof made. Provided always, and it is exprefsly agreed Provlfo that by and between the faid parties to thefe prefents, that if one of the if either of them the faid E. C. M. C. and S. C. fhall IT'TL happen to die before the expiration of the faid term of vivodhip feven years, or fooner determination of this prefentco- fhaI1 aciue > partnerfhip, and before a final account or partition C o un t- h ^ pre f ents tna r, if either of them the faid 5cl. &• L - APPENDIX. xv £, C. Ms C. and 5. C (hall marry within the term of feven years, that then the faid party fo marrying, fhall quit the faid trade and ftock, and leave the fame (being valued in fuch manner as herein before men- tioned, in cafe of the death of either of the faid parties) to the other of them, who, fhall pay for the faid ftock, and produce thereof, unto the party fo marrying, what the fame fhall be valued at, within the fpace of one year after fuch marriage (hall be had, by four equal quar- terly payments; the party fo marrying allowing to the other of them the fum of 50/. out of her third part of the faid joint ftock and produce thereof, as the fame fhall be appraifed at, as if fhe had broke off the faid copartnerfhip in fuch manner as aforementioned. And r^h-e^oit it is hereby agreed and declared by and between the enlarging faid parties hereto, that if either of them the faid «»partner- E. C. M. C. or S. C. fhall be minded to enlarge the p * time of this prefent copartnerfhip beyond the faid term of feven years, then fuch one of them fhall give notice to the other of them, of fuch their intention, fix months before the expiration of the faid term of feven years, or in default thereof, this prefent copart- nerfhip fhall ceafe and determine at the end of the faid term of feven years. In witness. [ No. 4. ] ggtreemeitt of Copartnctfljfp Between two Brewers. C$3fd indenture, Sec. between T. T. of of Agreement the one part, and W. P. of of the other tothe "£j part, Wjtnesseth, that the faid T. T. and IV. P. panncr llp ' having had experience of each others fidelity and care, and in confidence thereof, for the future and the bet- ter in probaDility to augment their refpective eitates, have agreed upon a copartnerfhip and joint trade; and therefore xvt A P P E N D I X. govenant therefore each of them for himfelf refpe&ively, and e am.. ^ ^ f £Vera i anc j re fpective executors and adminiftra- tors, doth covenant, promife and agree to and with the other of them, his executors and adminiftrators, by thefe prefent?, that from and after the day of the date of thefe prefents, they the faid T. T. and IV. P. fhall and will be and continue copartners and joint traders in the art, trade, miftery and bufinefs «» sre - of a brewer, at and in a mefluage, Sec. .fituate, &c. called, &c. now in the poflemon of the faid T. T. and IV. P. together with all, &c. thereunto appertaining, mentioned, or exprefled in one or more book or books, inventory or inventories figned by both the faid parties to their prefents, and witnefTed by the witneiTes to thefe prefents, on the day of the date hereof, for and tiaw. during the time and term of years from the day of the date of thefe prefents, fully to be completed and ended (if both the faid parties to thefe prefents Steck. (hall fo long live). And for the fair, equal, and bet- . ter carrying on the faid intended copartnerfliip and joint trade in the faid brewhoufe, it is declared and agreed by thefe prefents, by and between the faid T. T. and IV. P. that the faid T. T. for his part and propor- tion, now hath in ftock for the faid trade in ready money, debts, goods, utenfils, and implements fit for the faid intended joint trade, to the full value of i ooo/. and the faid W. P. likewife for his part, &c. (as before) both which faid fums together amount to the fum of 2C00/. which is to remain as joint ftock, and to be employed and ufed in and about the faid trade of brew- ing, felling and uttering of ale and beer in the faid brewhoufe, for and during the faid term of as aforefaid. And for the more orderly proceeding in, and carrying on the faid intended trade and bufinefs, it is mutually covenanted, concluded, and agreed by and between the faid parties to thefe prefents, and each of them the faid T. T. and IV. P. doth for him- felf refpcdfiively, and for his feveral and refpective executors and adminiiUatojs, covenant, promife and grant APPENDIX. xvii grant to and with the other of them, his executors and adminiftrators, by thefe prefents, in manner and form following (to wit), that, &c. (to be true to each Covenants other). See p. ix. And that each of them the faid be true to T. T. and W. P. and their feveral executors and ad- "Mother. miniftrators fhall have the full intereft, right, title and property of, in and to one moiety, or half part of the tohavea 6 ™ laid joint ftock of 2000/. and of and in one moiety or moiety of half part of all gains, profits and increafe which ^etofk (hall arife, happen, accrue, or be made thereby j and and bear and alfo (hall equally bear, pay and allow cofts, lofTes, &c. pay hh&are [See p. x. mutatis mutandis], other than fuch as ° f lolIes aiM * herein after are particularly expreiied and agreed to the contrary. And that the faid joint ftock, and alfo all the buyings, fellings, and dealings, gains, debts, ancfcredits which fhall grow, arife, happen, or be made of, or byreafon or means of the faid copart- nership, or joint trade, credit, or dealing, or any thing incident or belonging thereto,fhall from time to time, during all the term of this copartnerfhip, be truly en- Books of al- tered and fairly written in fome convenient and fitting ^"" ts c book or books for that purpofe, to.be provided and kept at the houfe where the (aid trade is to be carried on in fuch manner as men of the like trade ufe or w h; c hthe ought to do ; which faid bocks the faid copartners copartner* and their refpeclive executors and adminiftrators m ** fce . an(S fhall freely, and at all times, as well after, as dur- f, * ing the continuance of this copartnerfhip, have the right and perufal, when and as often as it fhall be defired, and fhall have liberty to tranfcribc, &c. Bonds and' [See p. xi.J And that all bonds, bills, notes, notes to be fpecialties, and fecurities whatfoever, at any time ^h'tnei made or taken for any matter or thing concerning names. their joint ftock or trade, (hall be made and taken in the names of both the faid copartners, and for their joint and equal ufe and benefit. And that all notes Thel,keof j v. r ■ ■ 1 r notes, &c. and other fecurities to be given to any perfon or per- given. fons who fhall intruft the faid partners) with goods or other things upon account of the faid trade, fhall be made xviii APPENDIX. made and given by and in the names of them botHl And also that it (hall and may be lawful to and for each of the faid copartners weekly (to wit) on Monday in every week during the faid copartnership, to have and take out of the faid joint ftock for their refpe&ive ufes and occafions the fum of 20s. each. And that nei- ther of them the faid copartners fhall at any time,with- out the confent of the other of them releafe, &c. [ See p. xii.] And, Sic. neither to be bail, &c. without the other's conftnt. A general account to bejlated once a year, entered in books and tranferipts to be made, &c. [ See p. xii.] Provifo that Provided always, and it is exprefsly declared, con- IF one part- ditioned and concluded by and between the faid parties dnefitfliaU to tne k P re ^ ents » anc ^ tne true intent and meaning of he taken by the faid parties hereunto and of thefe prefents is, that the funrivor. jf either of the faid parties to thefe prefents fhall hap- pen to depart this life before the faid term of — — years intended for this copartnerfhip fhall in courfe of time run out and be expired, and before a final account and partition fhall be made and paffed between them, of all matters and things relating to their faid joint trade and copartnerfhip, yet neverthelefs no benefit or advantage of furvivorihip fhall accrue unto, or be had and taken by the other of them in any wife whatfoever, any law, ufage or cuitom, or any thing herein con- It' oneof the tained to the contrary notwithstanding. And it is the e *- harmlefs the heirs, executors and adminiftrators of the ^^^ " faid deceafed paitner, and for fecuring the feveral pay- fame, 2 jnents xx APPENDIX. and give fe- me nts herein before mentioned to the executors of executors, * adminiftrator of fuch partner fo dying as aforefaid, &c. of the the faid furviving partner (hall within 30 days next deceafed tor a f ter r uc h deceafe en ter into and become bound in and ' by feveral bonds or obligations of ufual penalties to the executors or adminiilrators of the deceafed part- ner for the payment of the fame accordingly ; upon fcaling and executing of which faid bonds, and feciir- ing the faid executors or adminiftrators of the de- ceafed partner of and from the joint flock, debts ow- ing, and payable by the faid co-partners on their joint account at the time of their lall fettling accounts bc- Suchexecu- f ore f uc h death, the faid executors or adminiftrators releafe ' ^ la " ar, d w ' 1 ^ releafe, affign and quit claim to the their right faid furviving partner, all their right, title, intereft, todieftock, c j a i m an( ] demand, of, in, and to the faid partible flock and eftate, and all matters and things there- Accounts to unto belonging. And that upon the expiration of within 20 l ^ e k'^ term °^ hereupon agreed upon for the days«fcer continuance of this co-partnerihip, or within twenty A-"r" C """ ^ a y s tnen next en ^ um g) a nna ^ account, partition and divifion (hall be made and paded by and between the faid co-partners, of, for, and concerning all fuch goods, wares, ready money, debts, and other mat- ters and things as (hall be then due, owing, or be- longing unto the faid joint flock and trade, or to the faid co-partners in refpett thereof, or in any wife re- lating thereto, and alfo of and for all fuch debts, dues and funis of money as by reafon of their joint trade (hall be contracted, or be by them owing to any perfon or perfons, and like wife of and for all the gains and increafc, damages and lofles happening or accruing by, through, or in refpect of the faid parti- ble trade and co-partners, fo that the true (late there- of may appear, and what and how much thereof (hall then belong to each party, and then and there- upon, and after all debts and fums of money owing on the account of, or by virtue of the faid co-part- nerfhip (hall be paid, each of them the faid T. T. and IV. P. Jfoip ended. APPENDIX. xxi IV. P. and each of their executors 2nd adminiftrators fhall have and take to his and their own proper ufe and benefit, one moiety or half part, (the whole into two equal parts to be divided) of all things then in frock between them. And as for the debts which pebtsftand- fhall then be due and owing on their joint ac- JJ^J^ count, they the faid T. T. and IV. P. fhall, as equal andaflignedi as may be, divide and part the fame into two feveral fhares or lots, and the debts which by fuch lot fhall fall out to either of the faid copartners, his executors or adminiftrators, fogether with the fecunties con- cerning the fame, (hall be aiTigned and fet over to him or them by the other of the faid copartners, his execu- tors or adminiftrators, and he or they fhall be fully empowered to receive the fame to his or their own ufe and benefit, without any let or hindrance, of or by the other of them, his executors or adminiftrators, and that according to the true intent and meaning of thefe prefents. And tha: neither of them the faid T. T. Thatnel- and W. P. fhall or will at any time or times during Jjjjjj^ the faid copartnership, exercife or carry on, either fe- the fiidtrade parately or in copartnerfhip, with any other perfon or with any o- perfvns, the faid miftery or trade of a brewer in any erpei manner whatfoever. And lastly, it is mu- Differences tuallv covenanted, concluded, and agreed, by and be- to be left to ' 1 r ■ « • \ r re \ r i arbitration. tween tne faid parties to thefe prelents, for tnemielves, their executors and adminiftrators, that if any doubt, queftion, controverfy or difference fhall happen or arife between the faid parties, concerning the faid co- partnerfhip, the fame fhall be referred to two in- different perfons, being mafter brewers, to be nominated bv the faid copartners within 7 days next after fuch difference fhall arife or happen, (each of the faid copartners to chufe one) to be by them heard and determined, or elfe by an umpire to be nominated apd appointed by the faid two indifferent perfons, in cafe they themfelves cannot agree and fettle the fame, and that each of the faid copartners, his refpeclive executors and adminifirators, (hall aod will ftand to, H h abide, xxn APPENDIX. abide, perform and keep fuch order and determination therein, as the faid two indifferent perfons, or the faid umpire fo to be chofen as aforefaid, (hall make and give between the faid referees, fo as the fame be ren- dered and given under the hands and feals of fuch Whcnarbi- p er f n or perfons, within twenty days next after fuch roade? C 6 difference fliall be referred to them or him refpec- tively. And that neither of the faid parties to thefe prefents, his executors or adminiftrators, fhall com- mence or bring any action cr fuir, or feek any remedy whatfoever, either in law or equity to be relieved in the premifes before fuch difference (hall be put to reference as aforefaid, (and a covenant, that either of the copartners may diffolve the copartnerjhip on giving notice , and paying money j and covenant for performance of. cove- nants.) [See p. xiv.] In witness, &c. No a&ion to be brought before refer- ence to arbi- tration. Parties Bufinefs of a brandy jnerchant. [ No. 5. ] Seen of Copattnecfljip Between Brandy Merchants, where aFather ad* vances Money to put his Son in Partnerfhip, and agrees to guarantee for him, he being a Minor. With many Special Covenants. 'lOi§> indenture tripartite, made the day of in the — year of the reign of our Sovereign Lord George the Third, by the grace of God of Great Britain, France and Ireland, King, Defender of the Faith, &c and in the year of our Lord between A. B. of ftreet, London, brandy merchant, of the firft part., C. D. of the fame place, fon of the faid A. B. of the fecond part, and E. F. the younger of of the third part. Whereas the faid A. B. now and for many years pad, hath alone followed and carried on his trade or bufinefs of a brandy merchant in the houfe wherein he now lives, fituate in aforefaid. APPENDIX. xxiii aforefaid. And whereas the faid A. B. being defirous Agreement of fettling his faid fon in the faid bufmefs, and to fh[p. P * rt ~ continue him therein, Hath propofed to the faid E. F. that he and the faid C. D. fhall be copartners in the faid trade and bufinefs of a brandy merchant, i*pon equal terms of profit and lofs, for fuch rims, and on fuch terms and conditions as are herein after men- tioned and agreed upon. And the faid A. B. hath Father to agreed to advance to or for his faid fon, his fhare of ^l^ S f 0I . the capital ftock herein after mentioned and agreed, fh-ft partner, to be employed therein during the faid copartnerfhip, fubjec~r, to the conditions, and upon the fecurities herein after mentioned and declared, and not other- wife. And in regard the faid C. D. is not now of and to gm- the age of 21 years, he being only of the age of ranteeio, years or thereabouts; he the faid A. B. hath alfo i P _ g aminor. agreed to be guarantee for his faid fon's faithful dif- charge and due performance of the feveral claufes and agreements herein after mentioned and contained, which on his the faid C. D.'s part and behalf, sre or ought to be performed, fulfilled and kepi. Now this indenture WITNESSETH, that for the carrying the on ° n lder3tl " faid propofal of the faid A. B. into execution, and in purfuance of the faid recited agreement on the p3rt of the faid A .B. It is hereby mutually covenanted and agreed, by and between the faid A. B. and C. D. and the faid E. F. And the faid A. B. for himfelf, his Mutual co- heirs, executors and adminiff rators, for and on thebehalf venant of the faid fon, the faid C. D. in refpecl: of his not being of the age of 21 years as aforefaid, doth feve- rally covenant, promife and agree to and with the faid E. F. his executors and adminiftrators. And the faid E. F. for himfelf, his heirs, excutors and admini- ftrators, doth covenant, promife and agree to and with the faid A. B. his executors and adminiltrators, by thefe prefents, in manner following, (that is to fay) that they the faid C. Z). and E. F. (hall and will become, fora ?^- continue, and be joint traders and copartners, in the trade and bufinefs of a brandy merchant, in the buying H h 2 and xxiv APPENDIX. for 6 years. anc j ielling of brandy and rum, and other liquors, for and during the term of 6 years (if both of them the faid C. D. and E. F. fhall fo Jong live) to be computed, and to commence from the day of now next enfuing, in the fhares and proportions, and fub- ln moieties. J e< ^ to the claufes,provifoes and agreements hereinafter mentioned, (that is to fay) one moiety or half part, the whole in two equal parts to be divided, of the faid joint ftock and trade, and the profits and increafe thereof, is and is hereby agreed and declared to be the fhare and property of the faid C. >D. fubje in cafe they fhall jointly agree, and fhall, Money re- purfuant to fuch joint agreement, take any apprentice ^^ntizls or apprentices, or other covenant fervant or fervants ; & c . to be that then all monies, which fhall be given with fuch brought to .1 ^ r joint ac- apprentice or apprentices, or other covenant fervant or count , fervants, fhall be brought in, and added to the faid joint ftock, for the mutual and equal benefit of both of them, the faid C. D. and E. F. And that all charges keeping ap- and expences attending the keeping fuch apprentices, prentices, or other covenant fervants, fhall be equally borne by &c - tobe both of them, the faid C. D. and E. F. And it is J01 " hereby further agreed and declared, by and between all Father of the faid parties to thefe prefents, that he the faid A. B. fjhjjff* fhall, during the continuance of this copartnerfhip be lodg'mgin accommodated with a fuitable lodging in the faid houfe the . ho V fe where the faid joint trade is intended and agreed to be wjmfelfand carried on as aforefaid, for himfelf and a man fervant, man. without paying or allowing any money, or other con- fideration for the fame ; in confederation that he has lately laid out a confiderable fum of money in repairing the fame, and of his agreeing to permit them to carry on the faid joint trade therein, during the continuance of this copartnerfhip, at the fame rent as he the faid ,, ercent A. B. now pays for the fame. And alfo, that if any tobeailowl or either of the faid parties fhall bring in, and advance ed for extra Hh 4 anv m ° n T d ~ xxvm APPENDIX. Securities to be taken in fecond part- ner's name. In truft. Covenant, that the fa- ther fhould nerfonally acl, an.l draw upon the b inker for hi: fon. any Turn or fums cf money, with the confent of the other party, for the increafe and better carrying on of the (aid joint trade; that the fame fhali always be cor.fidered as a debt or debts due and owing from the (aid copartnerfhip, and {hall be repaid fuch party fo advancing the fame with intereft, after the rate of 5/. for every 100/. for a year, out of the faid joint ftcck, and the produce thereof, and before any divifion fhall be made thereof as before mentioned. And it is hereby further agreed, that in cafe there mall, during the continuance of this copartnerfhip, be any occafiou for accepting or taking any bonds, mortgages or other fecurities for the payment of any debt, or fum of mo- ney to be due or owing to the faid copartnerfhip, the fame fliail be taken in the name of the faid E. F. alone. But is is hereby declared, that the fame fhall be in truft for the faid copartners, and fhall be entered into the partnerfhip books accordingly, as part of the faid joint, (lock. And it is hereby agreed and declared, by and between the parties to thefe prefents, and the faid A. B. doth hereby for himfelf, his heirs, executors and adminifTrators, covenant and agree to and with the faid E. F. his executors and adminfftrators, that he the faid A. B. during the continuance of this copart- nership, fnall and will act, and employ himfelf in and about the fame, and do every thing according to the beff. of his fkill and power, to promote the faid bufmefs, lo to be carried on by virtue of thefe prefents, as fhall be convenient to the faid A. B. And for that purpofe, that he the faid A. B\ fhall have recourfe to all books of account, letters and papers relating to the faid joint trade, and to infpect, infert therein, and take copies thereof, at his free will and pleafure, and that he fhall be confulted by them the faid C. D. and E. F. touching, concerning or relating to the faid trade and bufinefs, in as fuli and ample manner, as if he was an actual partner therein with them. And iha]\ have liberty 10 draw upon the banker in the room of his faid fon, for any fum of money, that mail be receive APPENDIX. xxix be neceflary for carrying on the faid trade, and to do a!! other ads touching the faid trade and copartner- ship, as if he was an actual partner therein as afore- -. faid. And fhall have and receive for his attention and n y C £ty advice, in and about the faid buunefs and partnerfhip's confidera- affairs out of his faid fon's fhare of the faid joint flock, tI0n * and the profits thereof, the fum of ioo/. yearly. It being the condition and meaning of the faid A. J5.'s entering into the covenants and agreements herein contained ; and of the faid E. F. entering into this copartnerfhip with the faid C. D. in manner herein mentioned. And it is hereby further covenanted, Booksofac- agreed and declared, by and between the faid C. D. ^^ and E. F. and the faid A. B. for, and on the behalf of &c. the faid C. D. his fon, that they the faid C. D. and E. F. fliall, at their joint and equal charge, provide from time to time, during the continuance of this co- partnerfhip, proper books of account, and they or fome perfon or perfons by their appointment, and with the confent of the faid A. B. fhall enter therein, juft and true accounts of all their buyings, feJlings, receipts, payments and dealings concerning their faid joint trade, immediacely after the fame fhall happen, and fhall be juft, honeft and faithful to each other, in every refpecf. concerning the faid copartnerfhip. And Each to hare that each of them the faid C. D. and E. F. and the jjj^ t0 faid A. B. his executors and adminiftrators, for and on behalf of his faid fon C. D. fhall have free liberty of acccfs to the faid bocks, from time to time, and to inipecr, axamine and copy the fame, or any of the accounts or entries therein, to be contained or made at their own free will and p'eaiure, during the continuance of this copartnerfhip, and for fuch time afterward?, as fhall be agreed on by the faid . 1 o / Accounts parlies purfuant to thefe prefents. And further, when to be that they the faid C. £>. and E. F. together with madeupani the faid A. B. fhall and wiii at Muhaehnas next, how * or within a fortnight afterwards, and from thence- fohh twice in every year during the continuance of xxx APPEND! X. of this copartnership, "yrs, on Lady-day and Michaelmas- day, or within one month after each fuch time, join together and make up, (late and adjuft, a true and fair account of adjuftment and valuation, in writing, of all the monies, good?, wares, merchandize and effecls belonging to the faid joint (lock, and of the debts ow- ing from or fo them the faid C. D. and E. F. in re- fpecl to the W\d joint trade, and all other their joint dealings and tranfaclions, to the intent it may appear how much the net produce of the faid partnership flock and eflate, and how much the part of each of them the faid C. D. and E. F. may amount to, and what gains and profits fhall have been made by the faid joint trade and copartnership ; and that upon the dating of every fuch account, fuch of the debts then due to the faid co- partnership as fhall be efteemed bad or dubious, dial] be feparatcd from the others, and entered by them- selves, and fhall be eftimated and valued in fuch ac- count, and entered in the fame accounts fo to be ifated at fuch valuation; and when each of fuch ac- counts fhall be perfected, the fame fhall be tranferibed in two books, and fubferibed by both of them the faid C. D. and E. F. and alfo by the faid A. B. (if living) for and on behalf of the faid C. D. his fon ; and that Eacjitahave cac ' n f fa m fa f a y Q t J) ant J _£ # p % or t j, e faid A. copy» • ^ f or t k e kjj q £) £, a jj |j ave fa keeping of one of „ . the faid books : And the faid accounts, fo from time Accounts < not after- to time (ettled, mail not be opened or unravelled un- wards to be } e f s there fhall be any error therein, fuch error amount- lefc 1 fcc!* 1 " ll) S> to 20 '• anc ^ upv^ards, and then only for fuch error, and fo as the fame be oifcovered in the life- time of both of them the faid C. D, and E. F. and not other- v. ife ; and that upon every making up, dating and adjusting fuch half-yearly accounts, of and concerning fuch joint trade and dealing as aforefaid, all the clear j^offtt'tobe gains, profits and produce of the faid joint ftock, trade and copartnership fhall be parted, shared and divided by and between the faid C. D. and E. F. (that is to fay) one moiety or half part 3 the whole in two equ?»l parts APPENDIX. xxxi parts to be divided of the faid gains, profits and pro- duce, {hall be paid and delivered to the faid C. D. his executors or adminiftrators, in truft for, and for the ufe of the faid C. D. and the other moiety or half part of the faid gains, profits and produce, (hall be paid and delivered to the faid E. F. his executors or admini- ftrators. But it is hereby agreed and declared by the Intereft mo- laid C. D. that at every fuch divifion of the net gains, ne .y t0 be profits and produce of the faid joint ftcck to the faid " u w ~ A. B. his executors and adminiftrators fhall and may, out of the faid C. D.'s fnare of the faid net gains, profits and produce of the faid joint ftock, retain and pay him and themfelves intereft after the rate of 5 /. per cent, per annum for the faid 7000/. (o advanced and brought in by him the faid A. B. as and for his faid fon's (bare in the faid capital joint ftock as afore- faid, and all other fum and fums of money hereby agreed to be paid or allowed to the faid A. B. and which the faid C. D. fhall be any ways indebted to the faid A. B. And further, that at the expiration of this co- „ , . n ■ 1 1 r - » r, t>. *• n ti n 11 • ■ General fet- partnerihip, they the faid 6. D. ana h. F. mail join tiement and in account together, make up, ftate, fettle and adjuft divifion at a true and fair account in writing of all monies, j h ' e ° tn e> goods, wares, merchandize and effects belonging to fhip. the faid joint flock, and of ail debts due and owing to and from the faid C. D. and E. F. in rcfpe£t, of their joint trade, and after payment of all fums of money advanced and lent by any or either of the faid parties to the faid copartnerfhip, and with intereft for the fame as aforefaid ; and payment and fatisfaclion (hall be made of all fuch debts as (hall be due from them in refpecr. to the faid trade or good order taken for that purpofe, all the monies, goods, wares, debts and ef- fects then being part of or belonging to the faid joint ftock and partnerfhip, {hall be parted and divided into two equal parts or {hares, one of which faid two parts ihall be the property of the faid C. D. his executors or adminiftrators, but fubjccl to the payment of what £hall be due to the faid A. B. as aforefaid, and the other *m\\ APPENDIX. ether of the faid two parrs (hall be the property of the faid E. F. his executors or adminiftxators, and the fame fhall be divided by lots, in cafe of difagreement between them. And eacl: of them the faid C. D. and E. F. his executors or adminiftratcrs, (hall not only Each to af- j alfign and releafe to the other of them the part or parts -'"•, that fhall belong or be allotted to him, but fhall do all wien further * .... sfi'uffance. ac *s 2" d things to aunt and enable him to recover toe fame. And it is further agreed, that if either of them the faid C. D. and E. F. fhall die before the expiration No benefit of the faid term of fix years, no benefit of furvivorfhip oifurvivor- fazM be had or taken thereby, other than as hereafter In cafe of expreffed. And it is hereby further concluded, cove- the death of nanted, agreed and declared by and between the faid ;:psi " C. D. and E, F. and the faid A. B. for and on the count time, behalf of the faid C. D. his fon, that in cafe the faid iecond part- C. F>. fhall happen to die before the day of ner to give n£Xt en f u j n2 . an( ] t h e ( a \£ £ t f ftj a U him fur- nu::o witn . o* furetiesfor vive, then and in fuch cafe he the faid E. F. his execu- paynaentpf tors or adminifrxators, fhall have, take and enjoy to ^'nl? sf- their own ufe all the ready money, goods, wares, debts and other things then belonging, due or owing to the faid joint flock and eltate, and the gain, profits and in- creafe of the fame, and in lieu and fatisfaction of the faid C. X)/s fhare and proportion therein, fhall execute and deliver unto the faid A. B. his executors or ad- miniftrators, within 30 days after the death of the faid C. D. a bond or obligation in a furficient penalty •, and the faid E. F. alfo fhall and will within 60 days next after the death of the faid C. D. procure one or more fufficient able perfon or perfon's, to be approved of by the faid A. B. his executors or adminiftrators, as fecu- rities for the faid E. F. and fuch perfon or perfons fo to be procured fhall alfo execute and deliver unto the i'jid A, B. his executors or adminiftrators, within the faid 6c days after the death of the faid C. D. the like bond or obligation in the fame penalty, conditioned f->r the payment unto the faid A. B. his executors or adminiltratorSj of the fum or value that fhall have been APPENDIX. xxxiii been brought into the faid joint flock by the Did A. B. for his faid fon, and in difcharge of all demands due to the faid A. B. on account of the faid partnership (the fums that fhall have been taken out and received by the faid A. B. for the ufe of his faid fon as aforefaid, being thereout fij ft deducled) at three equal payments, payable by (that is to fay) one third part thereof within four ca- " illalments lendar months, one other third part thereof within eight calendar months, and the remaining third part thereof within twelve calendar months, to be com- puted 'refpeiStively from the day of the death of the faid C. D. together with intereft for the fame, after w ; t hj n te- the rate of 5 /, a-year for every 100/. and (o in pro- reft. portion for any Jefier fum, from the day of — — now next enfuing, being the time of the commence- ment of this co-partnerfhip. But if the faid C. D. In<- a fe of fhall happen to die after the making and tinifhing *! eath . afte < fuch firit half yearly account as aforefaid, and before t0 be „; yen the expiration or other fooner determination of this for the co-partnerfhip, and the faid E. F. {ball him furvive, amou » t: ° f 1 , ir-jr-r-'i- i • ■ n dcccaled - tnat then the laid t. t. his executors or adminiirra- fhareof tors (hall have, take, and enjoy to his and their own property*. ufe all the ready money, goods, wares, debts and other things then belonging, due, or owing to the faid co-partne.ifhip, flock and ehate, and the gains, profits and increafe of the fame, and in lieu and fatisfaction of and for the faid C. D.'s {hare and pro- portion thereof the faid E. F. fhall within thirty days from the death of the faid C. D. execute and deliver to the faid A. B. his cxecutrrs or adminiftratcrs a bond or obligation in a fufficient penalty, and alio Ihall and will within fixty days next after the deceafe of him the faid C. D. procure one or more fufficient or able perfon or perfens as fecurity for him the faid E. F. to be approved of by the faid J. B. his execu- tors or adminiftrators, and fuch perfon or pcrfons (o to be procured, fhall alfo execute and deliver unto the faid A. B. his executors or adminiftrators within the faid fixty days next after the death of the faid C. D. the like bond or obligation in the fame penalty con- ditioned xxxiv APPENDIX. ditionec- for the payment unto the faid A. B. his exe- cutors or adrr.iniftrators, fuch fum of money as the part, fhare, and intereft of the faid C. D. appeared to amount unto upon the foot of fuch '.aft ftated ac- count or eftimate to fecure to the faid A. B, his executors and adminiftrators what fhall be due and owing to him or them, for, or on account of the money fo lent and advanced by him as aforefaid, and all other monies due and owing to him by virtue of thefe prefents ; and the refidue thereof (if any) in truft for the executors and adminiftrators of the faid C. D. (the funis which (hall have been taken out or received by the faid A. B. for the ufe of the faid C. D. ftnee the making up and dating fuch laft account, being firft thereout deducted) at the times and in the proportions aforefaid, together with intereft for the fame, at the rate aforefaid, from the flaring fuch laft account as afore- faid ; and in either of the faid cafes, upon the giving The repre- and executing fuch feveral bonds by the faid E. F. and featauvesof ^\ s f eC urities as aforefaid, the executors or adminiftra- partnerln tors 0T " tne ^ a '^ & &' fhall execute and deliver to the inch cafe to faid E. F. a releafe of his the faid C. D.'s fhare and „r fe. intereft of and in the monies, goods, wares, debts and 2d partner effects of the faid joint trade and ftock. And the faid togivefecu- £ t p, fhall execute and deliver to the executors or ad- paymentof 1 m'niftrators of the faid C. D. a bond or obligation in debt , a fufficient penalty, with one or more fufficient perfon or perfons as fureties, conditioned for the paying and fatisfying all fuch debts as were due and owing by or from the faid copartners, in refpedr. of the faid joint trade, at the death of the faid C. D. within 12 months next after the death of the faid C. D. and for indemni- demnify. fying a ^ faving harmlefs the executors or adminiftra- tors of the faid C. D. from the fame, and from all cofts, charges, damages and expences that may happen on For want of account thereof. But if the faidZ?. F. fhall be unable, fathe'^to or neglect to procure fome fufficient perfon or perfons poflVfshim- to become bound with him in fuch bonds as aforefaid, feif of part- then it fjj a ]i an d may b e lawful to and for the faid nerihip pro- J J p perty, and ■"• " * fell, &C. APPENDIX. xxxv A. B. his executors or adminiftrators, for the ufe and benefit of himfelf, and the executors and adminiflra- tors of the faid C, D. as herein before is mentioned, to take peffefnon of and receive all the monies, goods, wares, debts and effects of and belonging to the faid joint trade, flock and copartnerfhip, and to fell and difpofe of the fame, and by and out of the monies arifing thereby, in the firft place to pay and fatisfy all the debts due and owing from the parties in copartnerfhip, and in the next place to fatisfy him- felf or themfclves, the money for which fuch bonds were to have been given as aforefaid, returning the overplus to the faid E. F. his executors or adminiftra- tors, and in fuch cafe the faid E. F. fhall affign unto , „, r ■ /i n • ■ n ■ partner the faid A. B. his executors or adminiftrators in truft to afli£n,&c. and for the purpofe aforefaid, all the monies, goods, wares, debts and effects of the faid joint flock and trade, and fhall not poffefs himfelf of or receive the fame or any part thereof; but fhall authorize and im- power the faid A. B. his executors or adminiftrators to receive and difpofe of the fame for the purpofes afore- faid. And it is hereby further covenanted, agreed i n cn f e of ajjd declared by and between the faid parties, and par- <*«*& cf =, and ftock ; and the faid E. F. if he {hall be then living, but if he {hall be dead, then fome one or more other fufficient and able perfon or perfons, as the faid C, D. {hall procure, and fuch as {hail be approved of by the executors or adminiftrators of the faid E. F. (hall (for and on behalf of the faid C. D.) execute and deliver to the executors or adminiftrators of the faid E. F. a bond or obligation in a fufficient penalty, conditioned for the paying and fatisfying all debts as were due and owing by and from the faid co-partners, in refpect of the faid joint trade, at the death of the faid E. F. within twelve calendar months next after the death of the faid E. F. and for indemnifying and faving ifnofure- harmlefs the executors or adminifttators of the faid E. ties, repre- F. from the fame, and from all cofts, charges, damages ^^"t, aad expences that may happen on account thereof ; a a. I 1 but xxxviii APPENDIX. but if neither the faid A. B. nor fuch other perfon ol! perfons (o to be procured by the faid C. D. as his fe« curities as aforefaid, fhall execute and deliver fuch bond to the executors or adminiftrators of the faid E. F. as aforefaid, then it fhall and may be lawful to and for the executors or adminiftrators of the faid E. F. to take poffefizon of and receive all the monies, goods, wares, debts and effects of and belonging to the faid joint trade, ftock and co-partnerfhip, and %o fell and difpofe of the fame, and by and out of mo- nies arifing thereby, in the firft place to pay and fa- tisfy all the debts due and owing from the parties in co-partnerfhip, and in the next place to fatisfy him- felf or themfdves the money for which fuch laft men- tioned bonds were to have been given as aforefaid, returning the overplus to the faid A. B. to and for the ufe and benefit of the faid C. D. his executors or adminiftrators, fubje£r. to fuch demands of the faid Effe&sto A. B. as aforementioned. And in fuch eafe the faid be affiled, At B% f or and on beha l f of the faid Q Dm his fon< doth hereby covenant and agree with the faid E. F. his executors and adminiftrators, that all the money, goods, wares., debts and effects of the faid joint ftock and trade fhall be affigned or othcrwife effectually vefted in the executors or adminiftrators of the faid E. F. for the purpofes aforefaid, and that the faid C. D. fhall not poffefs himfelf of, or receive the fame or any part thereof, but fhall and will permit and fuffer, and (as far as in him lieth) fully authorize and im- powcr the executors or adminiftrators of the faid E. F. to receive and difpofe of the fame for the purpofes Second aforefaid. And the faid A. B. for himfeif, his heirs, partner to executors and adminiftrators, doth covenant, pro- bufinef" m 'f e ana " a g r ee, to and with the faid E. F. his exe- Ibieiyona cutors, adminiftrators and ailigns, by thefe prefents, that in cafe the faid C. D. (lull happen to die before the expiration of this co-partnerfhip, and the faid E, F. fhall him furvive, and fhall chufe to continue the faid bufinefs of a brandy merchant in the faid houfe be- st- longing Certain £vem. APPENDIX. xxxix longing to the faid A. B. then, but not ctherwlfe, he the faid E. F. (hall have the fole and entire benefit and advantage of carrying on the fame therein, and that then and in fuch cafe, and for that end and purpofe he the faid A. B. his executors or admini- Houfe > , &c » * » t3 be af- ftrators, mall and will, within one month next after f lgngd to the deceafe of the faid C. D. affign and transfer him. unto him the faid E. F. the faid meffuage or tenement and premifes with the appurtenances, together with the indenture of leafe thereof, and all his, the faid A. .S.'seftate, right and intereft therein ; to hold the fome unto the faid E. F. his executors, adminiftrators and affigns from thenceforth, for and during all the reft and refidue of the term of years which the faid A. B. (hall then have therein ; but fubje£l to the rent and covenants in the fame leafe, referred and contain- ed on the faid leffees part to be paid and performed ; and upon condition that he the faid E. F. do and fhall upon fuch aflignment being executed as aforefaid, pay or Value tobe caufe to be paid unto him the faid A, B. his executors ascertained or adminiftrators, in lawful money of Great Britain^ J t ™ what the faid mefiuages and premises, fhall by two in- different perfons to be for that purpofe nominated, one by the faid A. B. his executors or adminiftrators, and the other by the faid E. F. be valued at, and do and fhall pay the charges of drawing and ingroffing the faid affignment. Provided always, and it is hereby froyifo,fer agreed and declared, by and between the faid parties rivenincalL to thefe prefents, that in cafe either of the faid C. D. either and E. F. fhall at the end or expiration of this copart- ^ ouId not nerfhip think fit to quit the faid trade, the other co- continue af- partner fhall chufe to continue to carry on the fame, ter, &c, and of which fhall give notice in writing of fuch his intention of quitting the faid trade and bufincfs, 6 months before the end of the faid coparmei fhip. Then and in fuch cafe the faid copartuerfhip flock, efface and effedts fhall be made up, applied and fe- cured to the faid refpective partners in the fame man- lier, as is herein before declared, touching either of I i 2 the APPENDIX. the faid partners' death, after the ftating of any fuch half yearly accounts as aforefaid ; but it is hereby agreed and declared, to be the intention and meaning of the parties hereto, that at the end and expiration of this copartnerfhip, that he the faid E. F. fhall con- tinue with the faid C. D. in copartnerfhip, for the term of feven years, upon the terms herein expreffed and declared, in cafe the faid C. D. fhall be defirous tb: reof, unlefs there fhall be any reafonable objection thereto, on the part of the faid E. F. And it is hereby alfo convenant, agreed and declared by and be- tween the faid C. D. and E. F. and the faid A. B. for and on behalf of the faid C. D. his fon, that if any variance, ftrife, difference or controverfy fhall at any time, during the continuance of this copartnerfhip, or at the end or other fooner determination thereof, hap- pen to grow, arife or be between all or any of the parties to thefe prefents, their, or any or either of their executors or adminiftrators, upon, touching or con- cerning the faid joint trade or dealings, or any the buyings, fellings, accounts, matters or things relating thereunto, or for, or touching any covenant, claufe, matter or thing in thefe prefents contained j then, and fo often as fuch variance, ftrife, difference or contro- verfy fhall happen, they the faid parties to thefe pre- fents, and each and every of their executors or ad- miniftrators, fhall upon rea/onable requeft made by either or any of them, before any fuit fhall be com- menced, for or touching the fame, caufe to be elected, named and chofen 3 indifferent perfons to hear and determine the faid difference and matters in difference, one of which arbitrators the faid C. D. and the faid A. B. their executors or adminiftrators fhall name and chufe, and the faid E. F, his executors or ad- miniftrators fhall name z.nd chufe one other of the faid arbitrators, and the faid two arbitrators fo to be no- minated by them, the faid parties to thefe prefects, fhall chufe and name the third arbitrator, and that eacb of them the faid parlies, and each and every of them, their APPENDIX. xli their and each and every of their executors or admi- niftrators fhall refpe&ively {land to, and perform and keep fuch award, order, determination and judgment, which the faid three arbitrators, or any two of them fhall make, and give in writing under their hands and feals unto the parties tubjedl by thefe prefents there- unto, upon and touching the faid differences and mat- ters in difference, fo that the faid award be made and given as aforefaid in writing, within forty days next after the choice or nomination of the faid arbitrators in that behalf. And it is further agreed by and between To be made the faid parties to thefe prefents, that fuch fubmiffion court". ° and reference fhall always be made a rule of his Ma- jefty's Court of Common Pleas at Wejiminjla. In WITKESS, &C. [ No. 6. ] Secernent Between Perfons to fit out a Ship to the Eajl- IndieSy and each to have an equal Share of the Profits at her Return. TOkfc l^iR&^ia* T.B. commander of the good Recitalof \3C\ {hip called the whereof S. C. of die f'P b 5- J r> n • l j i • i ln S bound and Lr. f. are part owners, is bound out in and with to, &c. the faid fhip in a voyage to Cbina y and back again to the port of London : And whereas the faid S. C. And of G. P. and T. B. have agreed to nuke up together a a e rei ;ment ftock of /. flerling, to be laid out and invefled ft ck to be in goods, wares and merchandizes, for the equal bene- laid outin fit of all the faid parties j for which purpofe the faid S. g0 ° s * C. and G. B. have each of them paid into the hands of the faid T. B. the futn of /. the receipt where- of the faid T. B. doth hereby acknowledge. Now Agreement therefore it is agreed between all the faid par- otal . lthe ' parties. ties, and the faid T. B- doth hereby covenant; pr^mife I i 3 and xlii APPENDIX. and agree to and with the faid S. C. and G. P. their executors, administrators and affigns, jointly and fe- verally., that he the faid T. B. fhall and will add and make up /. cf hi" own money, to the faid /. paid him by the faid S. C. and G. P. and that he the faid T. B. mall and will, upon the faid (hip's arrival at China, or in her faid intended voyage, lay out and in- veft the fame in goods, wares and merchandizes, to. the molt profit and advantage of all them the faid par- ties that he can, according to the belt of his judgment, and with refpe£t to the orders and directions of them the faid 5. C. and G. P. in and touching the fam^ ; and fhall and will bring home the effects and produce thereof in and with* the faid fhip, (the cafualties of the feas excepted) and upon the arrival at London, or any other port in England, or fooner if opportunity fhall ferve, fhall and will fend the invoice of the produce of the faid L to the faid S. C. and G, P. their exe- cutors or affigns, or fome of them at London^ and will alfo make a juft and true account to them, or fome of them, of all the produce of the faid — /. And it is agreed between all the faid parties, that -all the produce and effects of the faid fliall be fold and difpofed of at London with all convenient ex- pedition after arrival thereof, for the equal advantage of ail the faid parties, and that each of them fhall have and receive one full third part of the net proceeds thereof. And, &c. [no benerii of furvivorfhip. Sec p. vii.] In witness, &c. APPENDIX. xliii [No. 7v ] %\\ agreement to continue a pnrtnerfljfp. nvl&'&J £%€&>, &c, between M. B. of the one '£*' part, and H. P. of the other part. C&fjercas the faid M. B. and H. P. have for fe- Recital) tEjj veral years lad paft been equally concerned together lhc parties as partners or joint traders in the trade of , and f eve rai\ears in all profits and loffes thereby. And whereas be- copartners, fore fealing hereof, they have made up between them Thatac- a full account and reckoning of and concerning the counts are faid trade, goods and debts belonging and owing to et and by them on account thereof, containing all charges, profits and lofs thereby, whereof each of them, hath to the date thereof, paid and received one equal moiety or half parr, and upon making up the faid account, there appears to be remaining in flock, at the fealing hereof, in goods and debts owing on account of the faid trade, the fum or value of which belongs to them jointly, and wherein they are equally concerned ; out of which faid flock are due and payable on account of the faid joint trade, feveral debts amounting to -/. And whereas the faid parties intend to continue the And that faid trade of , in the dwelling houfe of the faid JJ^tSJ M.B. in, &c. for years, with the faid joint ftock their co- of, &c. and to be concerned therein equally as to pro- pwtnerflnp. fit and lofs. Now these presents witness, that in confideration of the trufr, and confidence which the to^onrinu*. faid parties have had and repofe in each other, it is hereby declared, covenanted and agreed by and be- tween the faid parties for themfelves, their executors, adminiftrators and affigns, that the faid parties are and will become and continue partners and joint traders in the trade of bifcuit baking, and vending and felling of bifcuits upon a joint and equal account between them, for profit and lofs for the faid time or term of I i 4 years incumber. xliv APPENDIX. years to commence from the date hereof, if both the Profit and f a jj parties (hall fo long live. And it is agreed, that z\\ charges and loffes, and all profits arifing by and on account of the faid joint trade fhall be equally paid, In confide- received and borne by and between the faid parties, rerltTone of ana * tna . 1 l ^ e ^ a '^ M. B. for and in confederation of the the partners rent of the fhop and other conveniencies wherein the to have a ^jj tra( ] e j s driven, (hall have and receive all benefit particular ,, ' = ■ ~ i i . -r benefit. and advantage to be had and made by the bran anling by the flour or meal ufed in the faid joint trade as he Nottodo hath haherto received the fame. And it is further anyaato a g re ed, Sec. (that the parties be true to each other), :iimhpr. 11 nil rr* and have not, fhall not, nor will do or fufrer any act or thing whatfoever, whereby or by means whereof any goods, monies or things belonging to the faid joint trade fhall or may be extended, feized or taken in ex- ecution, but that each of them fhall and will defend the faid joint ftoclc and trade from their own private and feparate debts, and all damages by reafon thereof. And that [accounts to be fettled at the end of the term> See p. xxviii.] — No furvlvorjhip [Seep. xviii.J In WITNESS, cYC. [ No. 8. ] Cofceumtts Indorfed on Articles of Copartnerfhip for con- tinuing the fame, with other Covenants. Cy%<&<& Charter party of affreightment en- deed muft \Jy tere< j j nto tn i s day of in the uponTfix vcar °f £ he reign of , and in the year of our fhii'mg Lord , between A. B. mailer of the good fhip # ;: 'V' or veflel called toe Roy at Charlotte., of the burthen of iix hundred tons, or thereabouts, now lying in the port of Liverpool, of the one part, and C, and D. of Liverpool, in the county of Lancafrer, merchants, freighters of the faid fhip, of the other part, WIT- NESSETH, that the laid A. B. hath this day letten the laid (hip to freight from Liverpool, aforefaid, to the port of Drontbeitn, and from thence to the port of A'c-ivy in Ireland, anJ the faid freighters have hired the fame in manner and form following, (that is to fay) that the faid fhip now, and (hall during the faid voy- age, be at the expence of the faid A. B. or his aftigns kept ftaunch, tight and ftrong, well manned, victualled, tackled, and provided in every refpecl fit for the mer- chants' fervice, and particularly for performing fuch a voyage, (the dangers and perils of the fea, reflraints of princes and rulers, fire and enemies, during the fame always excepted). And also, that the faid A. B. or his aiiigns fhail and will with all convenient difpatch, proceed with the faid vefTel to the port of Drcntheim, and there receive on board from the agent* of the faid C. D. a full loading of deals over all j and being fo loaden, the faid mailer with the fhip and cargo fliall with the fi ft opportunity of wind and weather, proceed directly for Nevury aforefaid, and on her APPENDIX. xlvii her arrival there, deliver the fame to the afligns of the faid C. and D. at fuch convenient place or places, where the faid (Hip and cargo may fifely come, fi kd alfo that the faid (hip (Hall for her loading at the port of Drontheim {lay twenty running days, and for dis- charging at Neuiry fifteen running days, that is to fay, thirty-five running days in the whole, if required, and fo end the laid intended voyage, In confideration of which, the faid freighters or their afligns 1 , agree not only to load and put on board the faid fhip, the faid cargo at the port of Drontheim as aforefaid, and to receive or caufe the fame to be received from on board her at Neivry aforefaid, and that within the days and time limited for her loading and difcharging as aforefaid, but alfo fhall and will pay, or caufe to be paid unto the faid A. B. or his alligus in full for the freight and hire of the faid fhip, for the faid voyage, at and after the rate of thirty-five [hillings and fix fence (Irifl) fterling) per flandard hundred for the deals which fhall be loaden on board of the faid vefl'el at Drontheim, and delivered at Newry, with two-thirds of all pilotage and port charges during the voyage, the freight to be paid as follows, that is to fay, the faid mafter to be fupplied with what cafh he may want for the (hip's neceiTary dilhurfements at Drontheim and JVcwry, the remainder by good bills on London, at three months date, together with the fum of four guineas per day, to be pa;d by the day, as the fame fhall grow due, for every day of the faid fhip's detention, over and above the days and time limitted for her loading and difcharging as aforefaid. An'd alfo the fhip to be at no expence for lighterage or rifk attend- ing the cargo after it is put over board. And for the true performance hereof, each of the faid parties bind- eth himfelf, his executors, adminiflrators and affigns reciprocally unto the other, efpecially the faid A. B. bindeth his faid fhip, htr freight and appurtenances ; and the faid freighters, their goods to he loaden on board her, ca:h to other, in the penal fum of (sven hundred APPENDIX. hundred pounds flcrling, firmly by thefe prefents. In witness whereof, each of the faid parties hath here- unto fet his hand and feal the day and year rirft within written. Sealed and declared, being fir ft duly 7 A. B. L. S. damped, in the prefence of J C. and D. L. S. E. F. witnefs to the fignature of C. and D. C. II. witnefs to the fb nature of A. B % [No. io.] 8 Copratncifijip Between two Perfons, whereby no prefent Stock is depofittd, but each Party is to ad- vance Money monthly. an* MS 3!uUcnt»rc, csV. between T. N. &c. and ^^ J. D. isfc. Whereas (recital as to leaft of pre- mises). And whereas (recital as to their agreeing to become partners) Now this Indenture wit- NEssETH (on ufual confederation become partners). Each party And to the end, intent and purpofe the better to ena- to advance ^ them the faid parties to carry on fuch trade or money r ' weekly or bufinefs and workmanfhip as aforefaid, it is hereby otheiwife. further covenanted and agreed between the faid par- ties hereto, that each of them the faid parties fhaJ!, immediately after the execution hereof, and afterwards every week, or month, or otherwile, equally advance fuch fums of money from lime to time in every year during this copartnerfhip, and as the faid copartners ihall mutually agree, as lhall be neceffary and fuffi- Forrm>mg cient for, and as a ftock as well for the buying of all goodsand f U ch to be by them fold, bartered or vended as aforefaid ; as alfo for the buying of all fuch tools, in- ftruments., oil, &c. and all other neceffary materials whatsoever, to be ufed for the working and other things materials, APPENDIX. xlix things for fale or other wife ; as like wife for the paying and defraying of all other necelTary and incident charges and expences whatfoever relating ro the buy- ing, bartering, felling and vending of fuch and other things, or otherwife touching or concerning the faid joint trade or bufinefs. And further, Astocaeh that all fuch monies or ftocks fo to be advanced as jj£ rtv *" aforefaid, and all gains, increafe, profit, produce and proceeds thereof fhall be ufed and employed by and between the faid parties to thefe prefents, to and for their joint ufes and upon their joint account both of profit and lofs, according to their refpeelive (hares therein, and the covenants and agreements herein af- ter mentioned and exprefl'ed touching the fame, (that is to fay) that they the faid parties, and their refpective executors and adminiftrators, fhall at all times during the continuance of this copartnerfhip, and at the de- termination of the fame, have a feveral and particular right. [Share of the profits, fee p. ix.] And that No benefit neither [no benefit of furvivorfhip, fee p. vii. j And j£ fttrvivor - that all fuch money and ftock fo to be advanced and made as aforefaid, fhall be by them the faid partners Monies tobe ufed, difpofed and employed in the faid joint trade or ^eoni 5 bufinefs, in manner a^ aforefaid, for the utmoll profit and advantage of them the faid parties in fuch moieties as aforefaid, and not otherwise. And [to be true to To be true each other, fee p. ix.] And that neither of the par- toeacl1 ties to ufe any other trade without confent, fee p. ii. And [not to become bail, fee p. xii.j And that if Notto be- at any time during this copartnerfhip the faid T. N. come bail* ihall procure, permit or fuffer any judgment to be re • _ covered or maintained againft him for any fum or fums confeffing I of money whatfoever (not due upon account of the judgment. faid joint trade) j and in cafe any execution fhall be thereon profecuted or fued forth againft his perfon, or his part or fhare in the faid then joint ftock and trade, that then and in fuch cafe he the faid T, A r . without} his immediate making fatisfaction for the fame out of his own proper monies, (hail therefore forfeit and I APPENDIX. and lofe all his part or (hare of and in the faid ftocte and trade unto the faid T. D. and alfo from thence- forth fhall lofe all his then future benefit and produce to arife, or be had or made thereby, any thing herein contained to the contrary thereof notwithftanding. The fame And, &c. [the fame as to J. A] And, &c. [not NoTtoiend t0 lend money, fee p. vii,] And, &c. [all charges, &c. money. to be paid by partners, fee p. vi.] And whereas Ail charges t fo e (^jj mefTuage or tenement being let to both the partners! ^ ^'^ parties, and he the faid T. N. not now dwelling in any part thereof, and he the faid J. D. now holding As to the the old building quite upright, together with the wafh- fe'uiidings°of houfe thereunto adjoining, being part of the fame, and the mef- there being another part thereof which is new-built, & a S e * he. Nov/ it is hereby further agreed and covenanted by and between the faid parties hereunto, that until fuch new building fhall be let, or his the faid T. N.'s refidence or dwelling therein, that he the faid J. D. fhall yearly, during the faid copartnerfhip, allow and pay quarterly unto the faid T. N. the fum of for the faid old building and wafh-houfe now enjoyed by him as aforefaid. And that from and after fuch new building fhall be let to any perfon or perfons during this copartnerfhip, that the rent thereof fhall go and be equally divided between them the faid parties du- As to-ap- ring the time of fuch le.t-.ing thereof. And it is here- jrenuces. j,y mutually covenanted, agreed and declared by and between the faid parties hereto, that no apprentice, during the term, fhall be taken by either of them the faid copartners into the faid joint trade or bufinefs, without the mutual confent of eachtfther : and in cafe any fuch apprentice or apprentices during the faid co- partnerfhip fhall be by them fo taken, that then and in fuch cafe all and every fum and fums of money to be had and received with every fuch apprentice fhall be equally divided between them the faid parties, fhare and fhare alike j and alfo that each of them the faid parties fhall have liberty and authority during this co- partnerfhip to command and employ each other's ap- prentice . APPENDIX. li prentices in and about the bufir.efs relating to the faid Books of joint trade. And, &c. [books of account to be kept, account. fee p. x. and xvii.] And further also, [to ac- Toaccount count once a year, fee p. xvi.] And further also onceaycar. in cafe either of the faid parties hereunto (hall happen If either of to die before the end of this prefent copartnership, or fhdfhappen before or after any fuch general account fo mi.de up, to die, and ftated and fubfcribed between them in manner as aforefaid ; and that there mail be any debts due from or to the faid parties hereto, on account of the faid joint trade, that then and in that cafe all fuch debts as a11 debts *• (hall be then due from the faid parties on account of p^^" 2 y fuch their joint trade {hall be by them forthwith equally paid by the furviving partner, and the executors or ad- miniftrators of the partner fo dying; and that then andaiUebts and in fuch cafe, all and every the debts as mail be then duc '° b( r. i i/--i r i • r ■ i equally di- due to the faid copartners on account or their laid v ided. joint trade, fhall be likewife equally fhared and divided between the faid furviving partner, and the executors and adminiftrators of the party fo dying, and in cafe they cannot agree touching the diviiion thereof, then the fame fhall be done by caiting of lots as in fuch cafe ufually accuftomed, and that then and in fuch cafe, alfo the furviving partner within ten days next after the deceafe of his partner, do, fhall and will (if pj^tnerwi to required) at the requeft and charge of the execu- aiflignifie tors or adminiftrators of the party fo dying, and at his 1 la ' e >^c. to the exc- her or their expence, either affign or pay, or fecure to curcrsorad- be paid to the faid executors or adminiftrators, all fuch niniftiators. deceafed partner's fhare of and in all and every the debts fo due to the faid joint trade as aforefaid, within twenty days then next following. And further Of. tbedi- also, that from and after fuch end or other determi- ^" ^ nation of this prefent copartnerfhip, all fuch debts as (hall be then due to the faid joint trade, and fo to be di- vided in manner as aforefaid, fhall go, belong and apper- tain to the parties as follows, viz. The debts fo fhared, divided or allotted to the executors or adroiniflratois of the party dying, fhall go and be to his, her or their ufe St* lii APPENDIX, or benefit, and the debts lb divided, fhared or allotted to the furviving party, (hall go and be to and for the ufe and benefit of him, his executors and adminiftra- tors, and that all fuch debts fo refpectively fhared, divided or allotted in manner as aforefaid, (hall and may be fo received, had, taken and enjoyed accordingly ; and that as well the furviving partner, his executors and adminif rators, as alfo the executors and admini* fixators of the party dying, (hall not without the con- fent in writing of each other, releafe, difcharge, compound or acknowledge fatisfaction for any fuch debt or debts, but fhall by all lawful ways and means whatfoever, as (hall be requefted by eaeh other, and at the charge of fuch perfon fo requeuing, do all reafon- able acts and things, either by letter of attorney or otherwife, for the better enabling each other, the exe- cutors or adminiftrators of each other, to fue for, re- cover, receive and difcharge all and every fuch debts as (hall be fo divided or allotted to each other, in man- . ner as aforefaid. And it is hereby further mutually of either covenanted and agreed, by and between the faid par- party dying, ties, that in cafe either of the faid parties fhall happen l°dl a a dmit " to die, before the end of this copartnerfhip, and in fuch upon 'her " cafe, if the widow of fuch party dying, fhall be minded giving io to come in and carry on the faid joint trade, with the aysnoace. f urv j v i n g partner, during the then refidue of the faid term, and fhall give 20 days notice thereof to fuch furviving partner, that then and in fuch cafe the wi- dow of fuch party fo dying, at the end of 20 days notice thereof to the furviving partner, fhall be ad- mitted and continue, and be as a copartner with fuch furviving partner in the faid joint trade, during the then refidue of the faid term, in as full, ample and be- To find a ne fi c jal manner as her then late hufband was, to all journeyman . , - „ , - in the place intents and purpoies whatfoever. ruoviDED, and lo ofhsrbuf- as f uc h widow during fuch copartnerfhip, fhall find and pay a journeyman's wages, to do the working part in and to be the faid joint-trade ; and fo as fhe, the executors and fubjea co adrniniftrators, be fubject and liable to all and every covenant thc >.-> months tke. APPENDIX. lii the covenants, claufes and agreements herein con- tained, mutatis mutandis, which on the part of her faid hufband are hereby covenanted to be paid, done and performed, or as near thereto as fhe can or may do. Provided nevertheless, that in cafe fuch widow Such Widow at any time after fuch admittance into the faid copart- t0 be at li- nerfhip, fhalt be minded to relinquifh and quit the ^loZn^ fame, that then and in fuch cafe, on her giving three ner/hipup- months notice thereof to the furviving partner, it fhall on s' iV '"s 3 and may be lawful for fuch widow, at the end of fuch three months notice thereof, to be at liberty to leave and quit her faid copartnership in the faid trade. In WITNESS, &C [ No. 11. ] DeefcofDiffalutiOit. ' ^3S& 3htt>enture made the day of in ' the year of the reign of our fovereign lord Q^eorge theThird, &c. and in the year of our Lord— — between A, B. of haberdafher of hats, of the Pan j ., one part, and C. D. of — -— aforefaid, haberdafher of hats, of the other part. £^l)ercii0 by indenture of co-partnerfhip or cove- ~ . , „ . . , . ' , , , r r ' . , Recital of ji nants bearing date the day of and made or deed of co- mentioned to be made between the faid C. D. of the partnership. one part, and the faid A. B. by the name and defcrip- tion of A. B. of the borough of Southivark in the county of Surry, haberdafher of hats, of the other part, they the faid C. D. and A. B. did mutually covenant and agree (under and fubjeft to the provi- foes, conditions and agremeots therein contained) to become, continue, and be co-partners and joint tra- ders togethers in the trade and bufinefs of a haber- dafher of hats, and in buying and felling of woofji tea, and fuch other commodities, goods, wares and merchandizes as they the faid partners fhould mu- tually think fit and agree to trade or deal in, for and K k during fiv APPENDIX. during the full time and term of years, to be ac- compted from the ■ - day of next enfuing the date thereof, if both the faid parties fhould fo long live, determinable neverthelefs as thereafter men- tioned; for the managing and carrying on of which faid joint trade and undertaking, they the faid parties agreed to bring in and make up in ready money or goods fit for the purpofe, approved of and reafonably valued and appraifed by and between themfelvs, or (in cafe of any difference between them) by fuch. other indifferent and proper perfons, appraifers, as they fhould mutually elect and agree upon for that purpofe, a capital joint flock amounting to the fum or value of 6000/. whereof the faid C. D. did thereby agree within one year after the commencement of the faid co-partnerfhip to bring in and advance in ready money or goods as aforefaid the full fum or value of 4500/. being 3 4th parts or (hares thereof; and the faid A. B. did alfo thereby agree within the fame time of one year to bring in and advance in ready money or goods as aforefaid the full fum or value of 1500/. being the remaining fourth part of the faid capital or joint flock : of and in which faid joint flock, and of the gains, profit and increafe to be made thereof, it was thereby declared and agreed, that the faid C. D. his executors and adminiflrators, fhould have and be intitled to three full fourth parts, the whole into four equal parts to be divided, as and for his fhare, in- tereft and proportion thereof, and that the faid A. B. his executors and adminiflrators fhould have and be intitled to the remaining fourth part as and for his fhare, intereft and proportion thereof. And whereas by an indenture bearing date the day of — — and made or mentioned to be made between the faid A. B, of the one part, and the faid C. D. of the other part, after reciting to the effecl; before recited ; and alfo reciting that the faid C. D. had advanced and paid into the faid joint trade the faid fum of 4500/. as and for his part and fhare therein : but the faid A. B. APPENDIX. lv A. B. not being able then to advance and pay his faid fourth part or fnare, or any part thereof, had requeued the faid C. D. to lend the fame upon his bond and the fecurity next therein after mentioned, which he the faid C. D. had agreed to. And alfo re- citing that the faid A. B. by one bond or obligation under his hand and feal bearing even date therewith, became bound to the faid C. D. in the penal fum of 3000/. with condition thereunder written fur making the fame void if he the faid A. B. his executors or adminiftrators fhould pay or caufe to be paid to the faid C. D. his executors, adminiftrators or affigns, the full fum of 1500/. with intereft for the fame at the rate of 5/. per cent, per annum on the - day of then next enfuing the date thereof, and as a further fecurity for the re-payment of the faid 1500/. and intereft, he the faid A. B. had agreed to releafe and aflign his fourth part, (hare and intereft, of and in the faid capital joint flock, and of the gains, profits and increafe thereof to the faid C. D. in manner thereinafter mentioned. It is by the faid indenture now reciting witnefTed, that for the confideration therein mentioned, the faid A. B. did aflign and fet over, remife, releafe and quit-claim unto the faid C. D. all that the faid fourth part, fhare and intereft of him the faid A. B. of, in, and to the faid capital joint ftock and of all monies, goods, wares, mer- chandizes, debts and effects thereto belonging, and which, during the faid co-partnerfhip fhould or might belong thereto, and of the gains, profits and increafe thereof, and all the eftate, right, title, intereft, pro- perty, profit, benefit, advantage, claim and demand of him the faid A. B. of, in and to the fame or any part thereof, to hold unto the faid C. D. his execu- tors, adminiftrators and affigns, as his and their own proper monies, goods, wares, merchandifes, chattels, debts, effects and eftates, from thenceforth freely for evermore, fubject to a provifo therein contained, for making void the fame on payment of the faid princi- K k 2 pal Ivi APPENDIX. pal fum of 1500/. and intereft, as therein particular- ly mentioned, as in and by the faid recited indentures, relation being thereunto refpeclively had, may more P.vtnei/Wp fully and at large appear. And whereas the faid eftabliflied. q. D. and A. B. have ever fince the faid day of — — been and continued copartners and joint-traders, Bufinefoha- j n t j le f a jj trade or bufinefs of a haberdafher of hats, ha^Gfc. ani ^ ' n buying and felling of wool, tea, and fuch other commodities, goods, wares and merchandizes, as the faid parties have thought fit to deal in, to the day Agreement of laft paft. AND WHEREAS the faid C. D. fordifioiu- aU£ j j t #. having drawn out an account of all their faid partnerfhip itock, debts and effects, and of their receipts and payments touching their faid joint-trade and dealing, to the faid day of — — laft paft, do find that the faid trade hath not anfwered the end which was intended by the faid copartnerfhip, and that it is the intereft of both the faid parties to end and determine the fame, whereupon it is agreed by and between the faid C. D. and A. B. that the faid copart- nerfh ip trade and joint dealing ihall accordingly end and determine as from the faid day of laft paft ; and that the whole partnerfhip flock and debts (hall veft in, and remain the property of the faid C. D. and that he the faid C. D. (hall relcafe unto the faid A. u. all demands whatfoever, either on account of the faid copartnerfhip, or otherwife howfoever, fave and except the fum of lent by the faid C. D. to the faid //. B. and for payment of which the faid A. B. has this day executed a bond to the faid C. D. in the penalty 0^ /. and in regard the faid trade has been carried on from the faid day of ■ — laft paft, in the joint names of the faid C. D. and A. B. the faid C. D. in lieu of the profits which may have been made by the faid joint flock from (hzt time to the day of the date hereof ( 1 -4th of which, if the copartnerfhip had continued, would belong to the faid A. B. after a de- duction of the intereft due to the faid C. D. on the above itioneu fecurity) hath agreed to allow from the faid . day APPENDIX. lvii — — day of — — laft parr, to the day of the date hereof to the faid A. B. wages for his trouble and time after the rate of ioo/. a-year. And forafmuch as the faid A. B. hath, during all that time boarded the fervants as in time of partnerfhip according to the faid in part recited articles, it is agreed, that the faid A. B. fha.ll be repaid the fame, and an account has been this day fettled by the faid C. D. and A. B. of what is due to the faid A. B. for the faid board and wages, and alfo of what the faid A. B. hath received from the faid partnerfhip flock fince the faid — — • day of laft, and there remains due to the faid A. B. on the balance of the faid account the fum of ■ " ■ And whereas the faid A. B. hath agreed with 2 his executors or adminiftrators (hall or may lawfully do or caufe to be Qor,£ in and about the premiffes, by virtue of thefe Covenant, prefents. And the faid A. B. doth hereby for himfelf, his heirs, executors and adminiftrators, covenant, promife and agree to and with the faid C. D. his ex- ecutors, adminiftrators and affigns, that he the faid A. B. his executors, adminiftrators or affigns, fhall not to re- not » " or will at any time or times hereafter receive, Jeafe debts, releafe, acquit or difcharge any of the debts or de- &u mands, due to the faid copartnerfhip, or any actions or fuits that fhall be brought, fued or commenced for, or on account of the fame, without the confent of the faid C. D. for thatpurpofe in writing, firft had and obtained. Nor ihall, nor will do, or fuffer, or caufe to be done, any act, matter or thing whatfoever, whereby the faid C, D. his executors, adminiftrators, or affigns fhall, or may be hindered or obftrudted in the recovering and receiving of the faid debts, goods, chattels and effects, due, owing and belonging to the faid copartnerfhip, or any part thereof j but fhall and will from time to time, and at all times hereafter, at for further the coft and charge of the faid C. D. do, perform and Mttitocc. execute all and every further and other lawful matters and things for the better enabling him the faid C. D. his executors, adminiftrators or affigns to get in and receive the fame, to and for his and their own u(e and Releafe benefit as aforefaid. And the faid A. B. for the confi- £? n ]^ flis ( nor derations affigned, hath remifed, releafed, and forever •■ ' ' quit-claimed. And by thefe prefents, doth for him- felf, his executors and adminifirators, remife, releafe, and for ever quit-claim unto the faid C. D. his execu- tors and adminiftrators, all and all manner of aclion and actions, caufe and caufes of actions, fuits, differ- ences, controverfies, quarrels, bonds, covenants, notes, bills, damages, eftate, right, titic, claims and demands whatfoever, both in law and equity, which he the faid J. B, now hath, cr which he his executors, admini- firators APPENDIX. bd trators or affigns can or may at any time or time* hereafter have, claim, challenge or demand againft the faid C. D. his heirs, executors or adminiftrators for or by reafon or means of the faid copartnerfhip, or any other matter, caufe or thing whatfocver, from the be- ginning of the world to the day of the date hereof, fave and except the covenants, claufes and agreements herein after contained on the part and behalf of the faid C. D. his executors and adminiftrators, to be paid, done or performed. And the faid C. D. in purfuance Acce P tatl - of the faid agreement, and in confideration of the above mentioned afllgnmenc and releafe, doth hereby accept of the faid joint flock, debts and effetls, in full of all demands, which he or his executors or admini- ftrators have or can, or may have on the faid A. B. his executors or adminiftrators, for or by reafon or means of the faid copartnerfhip or joint dealing, or on any other account whatsoever, except as herein before and after is excepted. And the faid C. D. hath re- mifed, releafed, and for ever quit claimed, And by thefe prefents, doth for himfelf, his heirs, executors, ?' eIe "!'r B and adminiftrators, remife, releafe, and for ever quit- n eetoa£ claim unto the faid A. B. his executors and admini- fignor. ilrators, all, and all manner of action and actions, caufe and caufes of actions, fu'us, differences, contro- verfie?, quarrels, bonds, covenants, notes, bills, da- mages, claims and demands whatsoever and howfoever, both at law and in equity, which he the faid CD. now hath, or which he his executors, administrators or affigns can or may at any time or times hereafter, have, claim, challenge or demand of or againft the faid A. B. his heirs, executors or adminiftrators, for or by reafon or means of the faid copartnerfhip, or any other matter, or thing relating thereto, or any other matter, caufe or thing whatfoever, from the beginning of the world, to the day of the date hereof, fave and except the covenants and agreements herein contain- ed, on the part and behalf of the fa'd A. B. his execu- tors and adminiftrators, to be done and performed. An» Covenant to say debts. kii APPENDIX. And alfo, fave and except the faid fum of fo as aforefaid,due from him the faid A. B. to the faid C. D. by virtue of the faid above mentioned bond, bearing even date herewith as afurefaid. Asp the faid C. D. doth hereby for himfelf, his heirs, executors and ad- miniftrators, covenant, promifeand agree to and with the faid A. B. his executors and adminiftrators, in manner following, (that is to fay), That he the faid C. D. his executors and adminiftrators {hall and will, as foon as conveniently may be, pay and difcharge all debts and demands whatfoever, due and owing from the faid C. D. and A. B. on account of the faid co- partnerfhip, or which he the faid A. B. his executors or adminiftrators fhall or may be liable to pay, fatisfy or make good jointly with the faid C. D. for or by reafon or means of the faid ccpartnerfiiip. And alfo, naem;;.,/, jj^jj an£ j w jjj f rQm t]mQ tQ t | me an( j at a ]| tj mes hereafter, well and fufficiently fave, defend, keep harm- lefs and indemnified the faid A. B. his heirs, executors and adminiftrators, and his and their, and every of their eftate, goods, chattels and effe&s of, from and againil all cofts, payments, charges, demands and expences whatfoever and howfoever, which he the faid A. B. his heirs, executors or adminiftrators, or his or their eftate, goods, chattels or effedls fliall or may fuf- fer, fuftain or be put unto, for or by reafon or means of the faid copartnership, joint trade or dealing, or for or by reafon or means of the faid C. D. his executors or adminiftrators, making ufe of the name of the faid A. B. in any fuit or aclion for the recovery of the faid copartnership's debts and erTe£t,s, or by reafon or means of his being made defendant in any fuits, or any other matter or thing whatfoever, relating to the faid co- Covenant partnerfliip. And it is hereby mutually agreed by forfecond an( j between the faid parties to thefe prefents, that the partner to ^jj ^ £. {hall continue and be a fervant as a fhop- inantothe man to the faid C. D. in the faid bufmefs, from this other, time to the day of now next, at the wages and after the rate of 100 /. year, which the faid C. D. hereby APPENDIX. Ixiii hereby agrees to pay him by monthly payments, that is to fay, /. on the laft day of every calendar month, to be computed from the date hereof, and in propor- tion thereto for the fraction or remainder of a month on the laft day of the faid term. And that he the faid J. B. fhall continue afterwards in the fervice of the faid C. D. for one year longer, to commence from the — — day of —next in cafe the faid C. D. ill all and to be think fit, to continue him the faid A. B. fo long in the ^gf*^** faid fervice, and fhall fignify fuch his intention in offint. writing, at leaft two months before the faid day day of next, at and after the rate and wages of ioo/. a year, payable by monthly payments as afore- faid. And that the faid J. B. during the time he fhall be in the fervice of the faid C. D. fhall diligently attend the bufmefs of the faid C. D. as a fhopman, and behave himfelf in every reipedl as a fhopman ought to do. In witness. I N E X. Abatement. T F an adlion is brought a- J - gainft one partner only, no advantage can be taken of the omhTion, but by plea in abatement Page 347 It cannot be given in evidence, for the not pleading it in abatement, is a waiver of the objection 744 Acceptance. Where there are two joint tra- ders, and one accepts a bill drawn on both for himfelf and partner, it binds both if it concerns the trade : other- wife if it concerns the ac- ceptor only in a diftinct in- tereft and refpec"t 52 ftccounttf. When an account is to be ta- ken between partners, each is entitled to be allowed a- gainft the other every thing he has advanced or brought into the partnership concern 3 and to charge the other part- ner in account, with what that other has not brought in, or has taken out more than he ought Page 302 Though length of time is no bar between merchant and merchant, whilft their ac- counts are going on, yet dealings having ceafed many years between them, and af- ter difputes there having been an acquiefcence till the death of one of them, the Court of Chancery will not decree an account with the furvivor, but leave the plain- tiff to his remedy at law 303 In a caufe for an account of a copartnership, both partners being dead, a receiver fhali be appointed 44.3 Where perfons have mutual dealings, figning the account is not necejfary to make it a ftated one, but it is keeping it a length of time without making Ixvi I N D E X. making an objection, which binds the perfon to whom it is fent Page 317 An account in partnership trade fhall not be infpected after the laft balance 317 Actions of account may be brought by one partner a- gainft another 328 Items in a partnerfhip account relating to the particular in- terefl of the book-keeper, will not be Supported 310 According to the cuftom of England, if two joint mer- chants occupy their flock, goods and merchandize in common, to their common profit, one of them naming himlelf a merchant, fhall have an account againlf. the other, naming him a mer- chant and charge him as his receiver 50 Nothing is to be confidered as the exclufive (hare of one partner, but his proportion of the refidue on balance of the account 174 An action of ajfumfftt may be maintained upon an exprefs promife for the amount of a balance {truck on a partner- fhip account, though there was a covenant between the parties to account 318 An action cannot be mantairr- ed by feveral partners for goods fold by one of them jiv- ing in Guernfey, and packed by him in a particular man- ner for the purpofe of fmug- gling, though the other part- ners who re fide in England fhould know nothing of the fale Page 12^. Where there is a partnerfhip demand, all the partners fhould join in the action, for the contract and undertak- ing is joint 335 One partner may maintain an action for money had and received againft the other partner for money received to the feparate ufe of the for- mer, and wrongfully carried to the partnerfhip account 213 a&mfnfffcatok See Executor. agreement. The Court of Chancery in car- rying agreements into exe- cution, govern themfelves by a moral, not a mathematical certainty 25 A man entering into an agree- ment and afterwards fubdi- viding his beneficial intereft under it, among others, is alone liable to the perform- ance, and the fiib-contrac~fc does not conftitute a part- nerfhip 45 A. B. C. and D, enter into an agree- INDEX. Ixvii agreement jointly to pur- chafe goods in the name of A. only, and each to take aliquot Shares ; but it does not appear that they agree jointly to refeil 'he goods. On the failure of A. the of- tenfible buyer, B. C. and D. are not anfwerable to the felle as partners Page 4.% In conltruing agreements there is no difference between a Court of Law and a Court of Lquicy 126 $pp?entice. Where two perfons carry on the trade of a brewer, and one of them has Served a re- gular apprenticeship, but the other has not, the partner not having fcrved fuch ap- prenticeship, is not liable to the penalty of the ftattue 5. Eliz. c. 4. The policy up- on which that act was made having from experience be- come doubtful 74 ASfignees under a commifFion of bankrupt aga:nft one part- ner, can only be tenants in common of an undivided fhare, fubjecl: to all the right of the other partner 202 Joint aflignees not permitted to prove againft the feparate eftate, the balance of a long account due from the part- ner to the partnership Page 305 Sflttmpa't. On the diiTolution of a partner- Ship between A. B. and C. a power given to A. to re- ceive all debts owing to, and to pay all thofe owing from the late partnership does not authorize him to indorfe a bill of exchange in the name of the partnership, though drawn by him in that name and accepted by a debtor to the partnership, af- ter the diSTolution. The perfon therefore to whom he {q indorfed, cannot main- tain an action on it againft A. B. and C. as partners. 405 Neither can fuch indorfee maintain an aciion againft A. B. and C. for money paid to the ufe of the partnership, though in fair, the money advanced by himindifcount- ing the bill be applied by A. to the payment of a debt due from the partnership 40 ? Affumpfit for partnefhip debts may be brought againft one partner only, and unlefs he pleads in abatement, he Shall be afterwards conclud- ed 339 4f- lxvrii INDEX. JLffumpJit being an equitable action, cannot be fupported where the ajfumpftt arifes fr m an unconfeicntious demand Page 278 Where a balance of accounts is (truck on the diflblution of a partnerfhip, ajfumpftt will lie 318 In afum^Fti againft feveral, a joint debt or contract muft be proved 67 How partners fhould declare in affumtfti 50,51 If two perfons jointly engage h\ a flock jobbing tranlac- tion, and incur lofies, and employ a broker tc pay the differences, and one of them repay the broker -with the pri- vity and confent of the other, the whole fum, he may re- cover a moiety from that other in an action for money paid to his ufe, notwith- ftanding the 7 Geo. 2. c. 8. which avoids and declares illegal all ftock-jobbingtran- factions 233 But in fuch a cafe of an illegal tranfa&ion, if one partner pay money for another, with- out an exprejs authority^ he cannot recover it back 244. If theie are two partners, and one buys goods for both, and the other dies, the fur- vivor may be charged by in- debitatus ajjumpftl generally 72 Bautotptcp. Bankruptcy and certificate of one partner, does not dif- charge the others, 10 Ann. c. 15./ 3. Page 359 An a£1 of bankruptcy by one partner, is o many purpofes a diflblution of the paitner- fhip 412 If on^ of two partners commit a fecret act of bankruptcy, the other partner may, for a valuable coniideration, and without fraud, difpofe of the partnerfhip effects, and tho* hehimfelf afterwards become bankrupt, the affignees under a joint commission cannot maintain trover againft the bgnaf.de vendee of fuch part- neri'hip effects 200 A fecret act of bankruptcy committed by one partner, is not fufficient to overturn an account fettled by agree- ment between both, after the expiration of the partner- fhip 318 A commifiion of bankrupt a- gainft one of feveral part- ners, is to be confiJereu as ?.n execution, and not as an. action 413 The auignees under a corn- million of bankruptcy aganit one partner, can only be te- nants in common of an un- divided raoiety, fubject to all the INDEX. lxix the rights of the other part- ner Page 202 An alignment by deed of only a (h^re of coparmerfhip ef- fects, to a bona fide ci editor, will, notwithstanding ,il done in contemplation of bank- ruptcy, itfelf become the ve- ry aci 417 But fee contra. ibid. A com million of bankrupt may ifiue againft one partner for a debt due by the partnership 413 On a bankruptcy between part- ners, they are entitled as a- gainit each other to the ba- lance of accounts 160 Where partners become bank- rupts, the allowance is to be divided between them, in the proportions in which the furpius of their ,refpe&'H e Separate eirecb, and tiieir refpective proportions o! the joint fund, have contributed to the payment of the joint debts 210 And partners can have but one allowance in rcfpect to their joint and fepar«.te eh 1 ate 21 1 A communon of bankrupt is to be considered as an tx cu- ticm ar:d not as an action : and where one partner com- mits an act. of bankruptcy, 2nd not trie cher, a million will go againft h:m, for he ewes the dtbt 413 15 &\l% of England. The Bank of England has a foecial power conferred on it, as a company, to ifiue and give out negotiable notes, by thernfelves or the : r fer- vants Page 53 A bend in the penalty of 200/. conditioned fur the perform- ance of articles of partner- fh ; p, is not an ufurious con- tract 298 A bond creditor to whom the partners were jointly and fe- verally bound, may make his election to come againft the joint, or feparate eliate, but not againft! both, except for trie liefi iency, and after the other creditors are paid 361 Cattficate, Certificate of one partner bankrupt not to difcharge his copartner 359 Cfiacter.pactp. Special partnership may be extracted undci a charter- party 1 1 3 A charter-party is an old in- j^rumentj inaccurate and in- L 1 formal, lxx INDEX. formal, and by the introduc- tion of different claufes, at different times, it is alfo fometimes contradictory Page 125 The charter-party fettles the agreement, as the bills of lading do the contents of the cargo 1 13 Charter-parties have always by the common law had a ge- nuine conftruciion, yet they muft be regularly pleaded 114 Charter-parties, like all mer- cantile contracts, ought to have a liberal interpretation 126 Campanfesf. The King by his charter may conftitute fraternities, or companies, for the manage- ment of foreign or domeftic trade 5" None but the King can eredt a fociety for trade, or public trading company 57 But the King by his charter cannot make a total reitraint of trade, for fuch a patent would be void 57 If one or more perfons enter into a public company, and become (harers of the joint ftock, yet it is not a partner- fhip 58 Confent. Confent is neceflary to com- plete every contract Page 130 in not is Contrast A contract made by two part- ners to pay a certain fum of money to a third perfon, equally out of their own pri- vate cafh, is a joint con- tract, and they muft be joint- ly fued upon it 331 CTontfnuance. Money lent to a trader by a partner who retires from bufinefs, at legal intereft, with an additional annuity for a certain term of years, is not a continuance of the partnerfhip 44 Ccetittoj. What tranfadtion of an tb- fconding partner in favour of a partnerfhip creditor, will be fraudulent and void, and prevent fuch creditor's being entitled to any part of the partnerfhip effects 423 Where perfons in trade have been connected in various partnerfhips, and a joint com- INDEX. lxxi conimiiTion taken out againft them all, an order has been made for keeping difiinc~t. accounts of the different partnerfhips, as well as the - feparate eftates of each part- ner Page 3 1 2 A joint and feveral creditor muft ele£t whether he will prove againft the joint or feparate eftate 361 But he may come in upon the furplus of the other, if there fhould be any 361 If a creditor of one partner takes out execution againft the partnership effects, he can only have the undivided (hare of his debtor ; 2nd muft take it in the fame manner the debtor himfelf had it, and fubject to the rights of the other partner 202 A bond creditor to whom the partners were jointly and feverally bound, may make his election to come againft the joint, or feparate eiiate, but not againft both, except for the deficiency, and after the other creditors are paid 361 DeatO- Partnerfhip is difiolved by the death of one of the partners, unlefs fpecial covenants to the contrary Page 431 Debt. A debt due from a partner- fhip is a legal debt to fup- port a feparate commiffion 413 One partner bringing truft- money into the trade with- out the knowledge of the other, it is a feparate debt 362 But if it is done with the knowledge and confent of all the partners, it is a joint debt 363 Diffalutfott. On the diffolution of a part- nerfhip between A, B. and C. a power given to A. to receive all debts owing to, and pay thofe owing from, the late partnerfhip, does not authorife him to indorfe a bill of exchange in the name of the partnerfhip, though drawn by him in that name, and accepted by a debtor of the partnerfhip after the diflolution : fo that the indorfee cannot maintain an adYion on the bill againft A. B. and C. as partners 405 LI 2 An lxxii INDEX, An a£t of bankruptcy by one partner, is to many purpofcs a difiblution of the partner- ship Page 412 If partners difiblve their part- nerfhip, perfons who deal with either, without notice of fuch difiblution, have a right againtt both 20 1 If a partnerfhip is difiblved by confent, that does not deter- mine the legal interc it, which continues as before ; fo that the property of the itock of the partner fo going out, is not deveited thereby, but he remains equally entitkd as joint- tenant with the other 168 Caution of One. A partnerfhip determined by effluxion of time j one in- tends to continue the trade, the other will not, infilling upon a divjfion; and on non-compliance brings an action at law, or a bill in equity for an account, and to reft rain the difpofing of thofe goods, the pofTefiion of which is wrongfully kept from him by his partner ; who pending this becomes bankrupt : this would not be within the ftatute 21 Jac. I. Ct 19, 179 Cquitp. Forbearance of fuit for twenty years will in equity be a good bar, though between merchant and merchant Page 304 A court of equity will not in general entertain a bill for a fpecific performance of con- tracts for chattels, or which relate to merchandize, but leave it to law 26 Partnerfhip dealings are pro- perly cognizable by courts of equity 68 eminence. What (hall be deemed fufHcient evidence of a former part- nerfhip being determined 37 ©wcutfott. Execution may be fued out a- gainft one partner for a debt due by the partneifllip 351 If partners be of goods, and execution be fued by fi. fa. againft one for his feparate debt, the fheriff may feize the whole, in order to inven- tory and appraife them, and to have a true account of the value ; but he can fell only the fhare of him againft whom the fi.fa. was fued 273 And INDEX. lxxiii And notwithftanding fuch fei- zure of the whole, the other partner continues in pofiel- fion of his fhare or moiety Page 274 Where,on an execution againft one of two partners, the partnerfhip efTe&s were ta- ken and fold, the court or- dered the iheriff to pay over to the other a fhare of tne produce, proportioned to his (hare in the partnerfhip ef- fects, to be afcertained by the mailer 165 An executor and furviving partner cannot be jointly fued, becaufe the fii ft is charged de boms iejiatoris, and the other de bonis p r o- priis 52 Reprefentatives of partners in the capacity of executors do not fucceed to the ftate and condition of partners 130 No perfon deriving under the partner can be in a better condition ; his executor to many purpofes {lands in the very fame light 202 Partnerfhip fliall not fubfifl for the benefit of an executor 43 1 former* The law of jus accrefcendi, up- on the death of one of fe- veral partners in a farm, difripguifhable from that refpe'&ihg traders in gene- ral Page 436 LfaWiffp. A6ls fubfequent to the time of delivering; soods on a con- tra£t, may be admitted as evidence to {hew that the goods were delivered on a panneifhip account, if it were doubtful at the time of the contract : but if it clear- ly appear that no partnerfhip exifted at the time of the contract, no fubfequent &i\ by any perfon, who may af- terwards become a partner, (not even an acknowledg- ment that he is liable, or his accepting a bill of exchange drawn on them as partners for the very goods) will make him liable in an acVion for goods fold and deliver- ed ; though he will be liable in an action on the bill of exchange *3j6 A man entering into an atnee- ment, and afterwards fub- dividing his beneficial inte- refl under it amongd others, L 1 3 is lxxiv INDEX. is alone liable to the per- formance Page 4 r) Where a bill or note is drawn in favour of two or more, in partnerfhip with one ano- ther, an indorfement by one will bind both, if the inflru- ment concern their joint trade 54 If one partner pay the whole of a partnerfhip debt with- out any exprefs promife from the other, the law gives him a right to recover it back in an action for money paid to the ufe of that other part- ner, and it proceeds on this ground, that both are liable to pay, provided the contract be legal 244 But in the cafe of illegal con- tracts, as they are not bound to pay, one of them cannot acquire a right of action againft the other by paying the whole without his con- sent ; in fuch cafe it is ne- cefiary to have the con lent and direction of that other 244 To make a man liable as a partner, there mud either be a contract between him and the oftenfible pcrfon to fhare jointly in the profits and Jofs, or he muft have per- mitted the other to make ufe of his credit, and to hold him out as one jointly liable with himfelf Page 38 Where two partners agreed to borrow a fum of money of a third perfon, but only one gave a bond, and the other witnefTed it, the money was afterwards entered in the cafh-book of the partner- fhip ; upon a bankruptcy happening, a joint commif- fion was taken out, and the obligee named in fuch bond was confidered entitled to come in and prove his debt under the joint commiffion 33° If a bill is drawn by two, pay- able to " us, or our order " and fubfcribed by both, tho' not in partnerfhip, theymake themfelves partners by the form of the bill, to the effect of making an indorfement by one of them valid 367 But the cuftom of merchants may make fuch indorfement vuid 372 ©ercDanttf. Four forts of merchants, viz, adventurers, dormant, tra- velling, and refident ; nei- ther of which take by fur- vivorfhip 4;^ Between joint merchants the remedy furvives, but not the duty 4,9 J he Law-Merchant is pare of the law of England 65 INDEX. lxxv Pattnet. One partner may be a creditor of another, and prove his debts under a feparate com- miffion Page 205, 206 One partner bringing truft money into the trade with- out the knowledge of the other, it is a feparate debt But if it is done with the know- ledge and confent of all the partners, it is a joint debt Ix one partner has taken out more than his (hare of the partnerfhip property, the joint efta-te cannot prove a- gainfr, the feparate before the feparate creditors are fatisfied 200 Unlefs the partner took out money with a view to de- fraud the joint eftate ibid. How partners fhould fue, and be fued 335, 336 In what cafes one partner may be fued without the reft, and in what cafes he may fue 336, 337 Kow to take advantage of 1m- properly fuing 3 partner ib. If one partner is out of the kingdom, and not amefna- ble to the procefs of the court, the defendant may proceed' fingly againft the other : but the plaintiff "muft firft proceed to outlawry a- gainft the partner who is abfent Page 356, 357 If partners exprefsly mention their fhares in one refpect only, either folely in regard to gain, or folely in regard to lofs, their fhares of that which is omitted {hall be the fame as of that which is mentioned 28 If a partner fhares in the ad- vantages, he (hall alfo fhare in all the difadvantages of the partnerfhip concern 89 Dormant partners are liable when difcovered 41 A dormant partner may be, without having ferved an apprenticefhip to the parti- cular trade 74 Each partner is confidered as the authorifed agent of the other, and all are implicated in the joint concerns, to the fulleft extent 137 One partner may be a creditor of the partnerfhip to ten times the value of all the effects 2 o2 If one of two partners become bankrupt, the folvent part- ner may, if for a valuable confideration and without fraud, difpofe of the partner- fhip effecls ; and if he after- wards fail, the ailignees Un- der a joint commiflion a- ■k 1 4 gainft Ixxvi INDEX. gainft both, cannot maintain trover again 1 the bend fide vendee of fuch partnership effects Page 193 After a diflMution of partner- fhip by agreement, by an execution, or by a bank- ruptcy, the partner out of poffefiioa of the partnerfhip effects, has ihs fame lien on any new goods bougnt : r, , which he had upon the old 201 One of three parfner^. in a fhip and cargo, the out-fit of which was 4,658 /. pays on- ly 410/. in part of his third fhare, and gives his notes for the remainder; but be- fore they become due, is a bankrupt ; the other part- ners cannot, by voluntarily discharging the notes, fcand in his place for the fhare of the profits ; but the affignees are entitled to a full third \ both of the profits and of the value of the fhip 155 Where a perfon relies on the faith cf feveral partners, though one only is concern- ed, all fhall be charged 66 If a bill is drawn by two, pay- able to t: us, or our order " and fubferibed by both, tho' not in partnerflii?, they make therofeives partners by the form of the bill, to the >. of making an indorfe- ment by one of them valid Page 366 If two are partners, as attomies and cori r u/y ncers, and one re- ceive money to be laid out on mortgage, the other is anfwerable for the amount, though his partner gave on- ly his own feparate receipt for J" , . 9 The being a partner, or not, is a matter of facl which he who is a partner cannot but know 34 Partners are joint tenants in the flock and effects, and they continue fo throughout 2 Partners in merchandizing with, or otherwife concern- ed in run goods, the Crown may come againft any one for the penalty 259 Proof. need only be that the goods came into his power, or into his agent's cuftody ibid. If a partner is a creditor upon the partnerfhip fund, he can have no fatisfaction but out of the furplus, which fhall remain after the joint cre- ditors are paid 210,211 Partnerfhip is a voluntary con- tract, between two or more perfons, for joining together their I N D X, Ixxvii their money, goods, or la- bor, upon an agreement that the gain or lofs flial) bt di- vided proportionably Page i From what time a partnerfh'p fhail be faid to commence 8 '34 What fhare in a partnerfiip a perfon fhall be faid to have 36 What is neceffary to conftituce a partnership 38 To confiitute a partnerfhip there fhould be a concern in the frfle, a« well as purchafe of things bought together 49 When money is advanced to a trader, the true criterion is to confider whether the pro- fit or premium is certain and defined, orcafual, indefinite and depending on the acci- dents of trade. In the for- mer cafe it is a loan, in the latter a partner Jhip 23 In a general partnerfliip to carry on trade, the fale by cne partner is the fale by all, and therefore though one fells the goods, or merchan- dizeth with them, yet action muff, be brought in all their names 7 1 part*ofcmers. Part-owners are tenants in common of a ihip 91 If one of f.-veral part-owners of 2 fhip objects to a voyage the others propoie making, he may by procefs out of the admiralty arrefl the fhip, and compel the other part own- ers to give iecurity for htr fafe return P<*g? 94. By the common law, as applied to parr-owners, each of them is poilliiai per my et per tout 96 An action on the cafe for ne- gligence of the mailer lies againfl the part-owners of a fhip, as well as againfl the matter; but all the part- owners ought to be joined 341 The matter of a fhip is not to be confidcred as a partner 99 The law confidcrs a m after upon all occafions, to be an officer, who mufl render and give an account of the whole charge, when once commit- ted to his care and cufiody 100 A miffer of a fhip may bring trefpafs. as a bail i it of goods may ioi If a mafier of a fhip buys pro- vifions for the fhip, and has money from the owners to pay for ti'em, but fails with- out paying the money, the owners are liable in propor- tion to their respective fharts 1.2 Ixxviii INDEX. JpicaWnjj. If one partner only brings an action where the contract was joint, the defendant may take advantage of it at the trial, and nonfuit the plain- tiff; but in the cafe of a j tort, this mult be pleaded in , abatement Page 336 | In torts, all the trefpaffers need not be made parties ; but in actions upon contract, every partner muft be made a de- fendant 343 The fale by one partner is the fale by all, and therefore though one fells the goods, ormerchandizeth with them, yet action muft be brought in all their names ; and in fuch cafe the defendant (hall not be received to wage his law, that the other partner did not fell the goods to him, as is fuppofed in the declaration 71 Where an action is brought a- g2*inft two joint debtors, and one only appears, the credi- tor may have judgment for his whole debt againft the pcrfon appearing,and by de- fault againft the perfon who does not appear , 346 If A. pleads a partnerfhip be- tween himfelf and B. and after iffue joined, a partner- fhip is proved between A. B. and C. this would be con- clufive againft the defend- ant Page 355 If an action is brought againft one partner only, no advan- tage can be taken of the omiffion, but by plea in a- batement 347 In a joint demand where one of the creditors will not join in the action, he is fummon- ed and fevered, and the other has judgment quod fe- quatur felum . 357 pgftfie'gg. No copartner in any trade or undertaking is entitled to the privilege of Parliament 221 Kent. If in articles of partnerfhip it is ftipulated, that the rent of the premifes fhall be paid out of the private cajl) of one of the parties ; thefe words only mean, that the rent fhall not be paid out of the partnerfhip 331 Etrj&tS. Refpccting the rights of part- ners 201 Nothing can be confidered as the exclufive right, or actu- ' al IN D E X. lxxix al fhare of one partner, but his proportion of the refi- due, upon a balance being (truck, of the accounts be- tween them ^ a S el SS Where one partner takes out more money from the part- nerfhip flock than his fhare amounted to, the other has a right to come upon the feparate eftate pro tanto 205 If one partner has taken out more than his fhare of the partnerfhip property, joint eflate cannot prove againft the feparate before the fepa- jate creditors are fatished 209 Unlefs the partner took cut money with a view to de- fraud the joint eflate ibid. Where a partner brings an action in his own right for money received after the death of the other partner, the defendant may fet off* whatever was due to him from the plaintiff 213 Nothing is to be confulcred the exclufive right of one partner, but his proportion of the refidue upon balance of the partnerfhip accounts "55 Smuggling is a trading within the bankrupt laws 276 An action cannot be maintain- ed by feveral partners for goods fold by one of them living in Guernfey, and pack- ed by him in a particular manner for the purpofe of fmuggling, though the other partners who refided in Eng- land knew nothing of the fide ; for it is a contract by fubjeiis of this country, made in contravention of the laws : and fuch a cafe muff, be confidered in the fame light as if all the partners refilled in England Page 224 If one of two partners advance money in a Smuggling tranf- action, he cannot recover his proportion of it againft his partner, becaufe the tranfa&ion is prohibited 241 If partners are concerned in fmuggling, though not all together when the a£f. is done, yet each may indivi- vidually be profecuted for the penalty; though at the fame time the King can have but one fatisfaftion 256 Statute of JLft tians. Ul* An acknowledgment by one partner, is furfkiem to take a cafe out of the Statute of LimUa- lxxx INDEX. Limitations as againft the others f'l.-eyji Though the Statute of Limi- tations has been always con- ftrued to except accounts open between merchant and merchant, yet that is to be underftood with this dif- tin6lion, that if open ac- counts be by fubfequent acts continued, they arc not to be barred by the interven- tion of fuch length of time from the original tranfaction 3°4 The Statute of Limitations pleaded by one partner to a bill brought by another for the balance of an account, and allowed 204 Statutes*. 5 Eliz. c. 4. I Jac. 1. c. 15. 21 "Jac. I. c. jg. 5 W. & M. c. 20. 3 & 4 Anna c. 9. 4 & 5 Ann. c. 1 7. # Ann. c. 7. 9 Ann. £.14. 10 Ann. c. 15. 1 Geo. 2. c. 22. 5 Geo. 2. c. 30. 7 Geo. 2. c. 8. 7 Geo. 1. c. 15. 7 Geo. 2. c. 28. i> Geo. 2. e. 1 8. 8 Geo, 2. c. 24. 74 417 *73 . 53 ibid. 359 258 228 359 316 3 ] 5 248 102 2 33 271 316 Stockjobbing. U two perfons jointJy engage in a ftock jobbing tranfac- tion, and incur lofT-s, and employ a broker to pay the differences, and one of them repay the broker, with the privity and confent of the other , the whole fum, he may re- cover a moiety from that other in an action for mo- ney paid to his ufe, notwith- flandi.Tg the 7 Geo. 2. c. 8. which avoids and declares illegal all flock -jobbing tranfadtions Page 233 ©utbibo^djfp. Where money is owing to two partners, and, after the death of one, it is paid to a third perfon, the furviving partner may maintain an action for money had and received in his own right, and not zs furvivor 213 The fame of money received after the teltator's death, for which his. executor may- maintain affumpfttin his own right 213 The furvivor and the execu- tor cannot join in an action 51 There fhall be nobenefit of fur- vivorfhip in copartnerfhip dealings 438 Though INDEX. lxxxi Though there is no benefit by furvivorfhip amongft mer- chants, yet if two joint- merchants contract with a bailiff, the contract is en- tire and joint, and by the death of one furvives to the other Page 73 If one partner dies, though the debts and effects furvive, yet the furvivor is confider- ed in equity barely as a truftee for the reprefenta- tives of the deceafed 168 If there be two partners in trade, and one of them buy goods for them both, and the other dieth, the furvivor may be charged by indebita- tus affumpfit generally, with- out taking notice of the partnerfhip, or that the o- ther is dead, and he furvi- ved 220 In articles of copartnerfJhip it is not neceffary to provide againft furvivorfhip 443 Citle. The title of partners is undi- vided, whether each indivi- dual partner contributes ex- actly in the fame proportion or not 1 If one partner only brings an action where the contract was joint, the defendant may take advantage of it at the trial, and nonfuit the plaintiff: but in the cafe of a tort, this mull: be pleaded in abatement Page 1^6 In torts, all the trefpailers need not be made parties ; but in actions upon con- tract, every partner muit. be made a defendant 34.3 Crofter. One partner cannot bring trover againlt another 205 Qfurp. If A. upon a loan of money, ftipulate to t4ke half the profits upon a re-fale of goods to be purchafed by the borrower, which profits exceed 5 /. per cent, and AJs principal is not r\£iL?Q,qu