remedies against its effects, as he has now against a fraudulent bill drawn or indorsed by his co-partner.

But at any rate, it is perfectly clear that the recognition of the firm for purposes of procedure would at once sweep away all these difficulties. There does not seem the smallest reason why an action against Jones, Smith, and Co. should not be brought upon Jones, Smith, and Co.'s indorsement, and why the procedure should not affect every individual Jones, Smith, Brown, and Robinson, just as much as the indorsement itself affects him. Such a thing takes place daily throughout half the continent, without the smallest mischief that I ever heard of. Such a thing takes place under another name with us, every time that, under the Country Banking Acts, or the Joint-Stock Companies' Acts, or the Joint-Stock Banks Acts, execution is issued against a shareholder on judgment obtained against the public officer, or the banking or other company. And what applies to the firm as defendant would equally apply to the firm as plaintiff.

Whilst on the subject of legal remedies, it is somewhat amusing to find, that though Courts of Law have clearly been of opinion, that one partner cannot submit a matter to arbitration on behalf of the firm without the specific assent of his co-partners, on the ground that the authority to do so does not flow from the relation of partnership, is no part of the ordinary business of a trading firm, and therefore must be proved either by express evidence, or by such circumstances as lead to the presumption of such an authority having been conferred (Stead v. Salt, 3 Bing. 101, Adams v. Bankart, 1 C. M. and R. 681);-Yet they have held that one partner might enter an appearance for the others; suspend proceedings on their behalf; release the cause of action. In vain was it argued, Why, seeing he may bring or settle an action on behalf of the rest, may he not refer a matter to arbitration, which would otherwise have to be litigated? (2 A. and E. 197, Boyd v. Emmerson). Litigation, it would seem to follow from these decisions, flows naturally from the partnership relation; the attempt not to litigate requires special authority.

8. Remedies as between Partners:-The obstacles thrown

by our partnership law in the way of the enforcement of justice between partners, have been even more keenly canvassed than those interfering with its enforcement as between partners and strangers. We may trace indeed a certain difference between the action of Courts of Law and Courts of Equity in this respect:-Neither tribunal, as we have seen, will notice, otherwise than by side-glances, the mercantile personality of the firm. Still, Courts of Equity acknowledge in many of their proceedings the fact of partnership apart from the partners; the reality of a relation which, being once created, separates the interests of the whole body from those of its individual members. Hence you will find them in many instances interfering on behalf of the partnership itself against individual members. They do so every time that, finding a written contract, they step in to maintain the partnership within its terms. A bill may be filed, it was said by Lord Eldon, "for the purpose of compelling partners to do certain things, according to the provisions of certain instruments, and the Court will interfere for that purpose; but it must be so framed as that a decree can be made, either that the concern should be carried on according to the terms of such instruments, or that it should be wholly put an end to (Turn, and Russ., 519, 517, Const v. Harris). And, within certain limits, the act of a majority will be held to be that of the partnership itself. "I call that the act of all," said Lord Eldon," which is the act of the majority, provided all are consulted, and the majority are acting bona fide" (Turn. and R., 525).

Courts of Law, on the other hand, will only interfere on behalf of some one or more of the partners as individuals against the others. Refusing to recognize the firm as distinct from its members-viewing it merely as an aggregate of personal atoms-they find themselves bound hand and foot by one of their axioms, otherwise very plain and rational, that a man cannot sue himself. Thus they will give damages between partners only where such damages will not go to any partnership fund, but will be the separate property of the plaintiff; and when they will not be paid out of any partnership fund, but by some of the partners on their per

sonal responsibility (1 Bing. N. C. 407; Bedford v. Brutton). "It is perfectly clear," said Lord Tenterden, "that one partner cannot maintain an action against his copartners for work and labour performed, or money expended on behalf of the partnership" (1 B. and Cr. 76, Holmes v. Higgins); since in this case it is clear that the damages would have to come out of the partnership fund, in which the complaining partner has a share. And conversely, it may be said generally, that any thing which takes a sum virtually out of the partnership account, by shewing that it is the separate property or debt of one of the partners, gives a right of action. This is perhaps specially important as respects balances of account. In other words, Courts of Law generally interfere as between partners, so far as they cease to be partners at all (a).

Reverting to Courts of Equity, we may say that the mode in which they may interfere on behalf of the partnership itself against the members appears to be threefold. They may enforce performance of a particular covenant or recognised duty. They may compass the same end by enjoining against the breach of a particular covenant, or against the commission of an act which is damaging to the partnership. Or, finally, they may exercise a still more direct action by appointing an officer of their own, termed a receiver, to perform certain functions, especially those of receiving and paying moneys, and accounting for such receipts and payments.

I have said that the Court of Chancery may interfere in these three different ways. Of course, it has never gone the length of laying down as a principle that it will, or even that it can do so universally, in any single one of the modes pointed out-that whenever it finds a covenant or a duty, it can compel its performance; that whenever it sees that a certain act will damage the partnership, it can forbid its commission; that it can

(a) The above rules of the Common Law have, however, been strikingly infringed upon by the County Courts Act, 9 and 10 Vict. c. 95, s. 65, which gives jurisdiction to the County Court on demands for "the whole or part of the unliquidated balance of a partnership account." But the jurisdiction thus created is so peculiar, that it has been held not to be removable by certiorari; Durant v. Tomlin, quoted in Pollock's County Court Practice, p. 158.

appoint a receiver of its own temporarily to carry on the partnership, whenever it cannot otherwise be carried on, even though there may be distinct provisions to that effect in the deed. Our Courts have never been in the habit of thus broadly staking out their paths before them. Like pioneers unofficered and without general science, each judge mostly hews out his day's journey through the brushwood of litigation; if his arm be strong, he will perhaps hand over a few extra yards of clearing to the next day's worker. And so, on every single head of Equity jurisdiction in partnership matters, its scope will be found limited in practice within bounds which may often seem wholly insufficient, which may be burst some day by the future judge who is now engrossed with football or cricket, which precedent yet forbids him who now wears the wig to overpass.

If, indeed, equity only subsisted, as it has often been imagined and expressed, to temper the rigour of the Common Law, the slender remedies which the latter affords as between partners might seem to supply a ground for its free-handed interference. But, on the contrary, its leading principle in partnership litigation seems for a long time to have been thisthat it can do no good in attempting to patch up partnership disputes by decree;-and therefore that it should not meddle with them if possible, except to dissolve the partnership when they have risen to such a height as to justify that measure. Lord Eldon in particular-who played with doubts as a strong man might with walnuts, knowing that he could crush them at any time himself by simply shutting his hand on them, but delighted in tossing those doubts to others, as the man might his walnuts to a child, to see them weary their puny strength in vain endeavours to crack them-Lord Eldon for a long time maintained the doctrine of the non-interference of equity in partnership matters with all the tenacity of which he was capable. No one, who has not followed his decisions on this subject with care, can have any idea of the learning and ingenuity he thus displayed in endeavouring to establish the incapacity of his own Court to do justice as between partners. Yet, strange to say, in spite of all this learning and ingenuity, thrown into the same scale as his proverbial dead-weight of

delay, partners would persist in clamouring for redress at his hands, would compel him to hear the same claims argued a hundred times over, in every shape in which they could be put before him. And it was with him as with the unjust judge of Scripture. He was wearied into doing justice; and although many of his judgments lie yet as an incubus upon our lawalthough it is incalculable how much slovenly Act-of-Parliament-making might have been spared to the country by a judge who, during half the period of his long tenure of the seals, should have devoted one quarter of his talents to the enlargement of the practice of Equity, instead of to the crippling of justice by the Procrustean measure of form-still, the partnership jurisdiction of the Court of Chancery left Lord Eldon's hands far wider than he had received it, and ripe for further extension at the hands of his more liberal-minded successors. He was forced nearly at all points. So late as 1808, we find him in Waters v Taylor, 15 Ves. 10 (the case of the Italian Opera-House), treating with contempt "the notion, that this Court is to be employed in carrying on any concern, is to carry on every brewery and any speculation in the kingdom," declaring that "this Court has no jurisdiction to manage this concern, merely for the purpose of carrying it on." The Court, he said, "will order it to be sold or foreclosed, will deal with it as a property, but no further." Sixteen years after, in Const v. Harris, Turn. and R. 496, he appointed a receiver of Covent Garden Thaetre, for the express purpose of carrying it on! (a)

There is no doubt a large amount of very obvious truth in the feeling, that men cannot be made good partners by process of law, that the partnership which has to come to the Court

(a) Mr. Haynes, however, in his most able and original Outlines of Equity, p. 139, treats it as "now settled," that the Court will not appoint a receiver "when the continuance of the partnership is contemplated;" relying on Lord Truro's decision in Hall v. Hall, 3 McN. and G. 79; in which indeed (p. 91) his lordship appears to confine the jurisdiction of the Court for the appointment of a receiver, apart from the object of dissolution, to cases where a partner might be so conducting himself, “that unless a manager was appointed before the hearing, the partnership concern might in the mean time be destroyed."-(June 12, 1858).