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the same. In re communi neminem dominorum jure facere quicquam, invito altero, posse. Unde manifestum est prohibendi jus esse; in re enim pari, potiorem causam esse prohibentis constat (a).

It may be observed, however, that cases of this kind are of very rare occurrence; for in the general case the proper course to be pursued will be found indicated either expressly or by implication in the original contract, so that very little room is left for the exercise of discretion within the limits of the company's sphere of action; and the fact that a partner refuses to concur in acts plainly necessary for ordinary administration, forms, when the partnership is for a term, a good ground for applying for judicial interference to dissolve and wind up the concern (b).

It must also be borne in mind, that where any antecedent obligation has been undertaken by the company, the will of that section of the members who wish to fulfil such obligation will prevail against the wishes of an equal number who oppose, and will be held to be the will of the company; for it cannot be presumed that a company any more than an individual intends to escape from the performance of obligations which may be enforced by legal proceedings (c). In such a case the dictum of the civilians would seem to apply: Sed etsi in communi prohiberi socius a socio ne quid faciat potest, ut tamen factum opus tollat cogi non potest, si cum prohibere poterat hoc prætermisit (d).

4. The will of the majority is only the will of the company, when all the members have voted, or have had it in their power to vote, and when a bona fide opinion has been given after due consideration. The reason of this is, that in every partnership, whether it is expressed or not, all the partners are bound to be true and faithful to each other; and, unless the contrary has been arranged, are not only entitled, but bound, to give due consideration to the common affairs, and to give the best of their advice and judgment. Hence, when any question arises as to company management, the proper course is to call a meeting of all the members, or otherwise to enable them all to express their opinion on the matter.

(a) Dig. lib. x. tit. 3, 1. 28. See also Story on Part. sec. 123; Stair i. 16, 4; Bankt. i. 22, 9.

And

(b) Butchart v. Dresser, 1853, 4 De

G. M. and G. 542.

(c) Butchart v. Dresser, supra.

(d) Dig. 1. x. t. 3, 1. 28.

Fourth rule.

Fifth rule.

hence also it is the duty of every partner to form his opinion not only on a full consideration of the matter submitted to the meeting, but after fairly weighing the opinions and arguments of such of his copartners as may be disposed to entertain views differing from his own.

As consequences of these principles, it may be observed that the resolutions of a majority will not be deemed those of the company when they have been passed in pursuance of a determination to thwart the views of the minority in spite of all that could be urged to the contrary; and resolutions passed at a meeting where all the members were not present or duly warned to attend, will not be validated by evidence that, though all had been present, the majority would still have been in favour of the resolutions; for if the proceedings had been conducted regularly and in bona fide, it is impossible to tell how far the minority might by argument have changed the views of their fellows (a).

5. When in the instrument of formation rules have been prescribed for ascertaining the will of the company, it can only be declared by resolutions in the passing of which these rules have been observed. This plainly follows from the consideration, that as the company owes its existence to the will of its members, it lay with them to determine at its formation in what manner its will was to be ascertained; and that the rules laid down in the instrument of formation were conditions of the contract, in virtue of which the members agreed to form themselves into an association (b).

(a) See, as to this, Const v. Harris, 1824, Turn. and R. 518; ex parte Morrison, 1847, De Gex 539; Brown

v. Andrew, 13 E. Jur. 938; Story on Part. sec. 123.

(b) See Story on Part. sec. 125.

CHAPTER X.

POWERS OF PARTNERS.

Private partand transact by

nerships act

their partners.

Scottish

trasted.

PRIVATE partnerships act and transact with the public or their own members as individuals; but being artificial persons, their intercourse is carried on by the intervention of agents. These agents are the partners. In England, where the separate persona of the English and firm is not recognised, the individual partners are regarded as the theories conagents of each other in matters relating to the common undertaking. Hence it follows, that whatever is done by the individual partners as partners, is in Scotland said to be done by them as agents for the company; but in England as agents for each other. In the great majority of cases this theoretical difference has no Practical practical effect, but instances do occur where its consequences are discernible. When any such require notice, they will be pointed out in the course of this inquiry.

effects.

Since the partnership acts and transacts by means of its part- Agency. ners, the law which regulates the powers of partners must be taken to be a branch of the law of principal and agent,—a proposition which holds true not only in Scotland, but in every other country where commercial jurisprudence has assumed a systematic form (a). According to the civilians, the partnership contract did not Civil law. ipso jure invest all the partners with the power of agency; but it was restricted to those of their number upon whom it was specially conferred, though its possession by the others might be inferred from facts and circumstances (). But in the English, Scottish,

(a) Pothier Pand. lib. xvii. t. 2, art. 26 to 29; 1 Domat. B. i. t. 8, s. 4, art. 16; Dig. lib. xvii. t. 2, 1, 68; Story on Part. sec. 109; Story on Agency, s. 124, note (1); Pothier, de Société,

n. 96; opinions of Lords Cranworth
and Wensleydale in Cox v. Hickman,
8 House of Lords Cases 306.

(b) Pothier, Domat., and Dig., ut

antea.

Agency is express or implied.

Hence powers

American, and modern French systems of jurisprudence, the partners are held to be præpositi negotiis societatis, without any express stipulation, and by the mere fact of entering into the partnership relation (a).

Agency is either implied or express. If a man appoint another his agent to represent him in some line of trade, all such powers as are necessary to carry on the business in the ordinary way are presumed to be conferred; and the public are safe to deal with the agent within that sphere of action as if he were the principal. But beyond this there are many things which the principal may, for reasons of his own, choose to do, though they are neither necessary nor usual in his line of business. As to these, an agent has no implied powers, and the public are only in safety to transact with him when they are satisfied that he has express authority from his principal (b).

This doctrine of agency forms part of the law of partnership, either implied and divides the powers of partners into two classes: 1. Implied or

of partners are

or express.

common powers; and 2. Special or express powers;—the former being such as arise out of the mere fact of partnership; the latter being such as are specially conferred by the company. In the words of Mr Justice Story (e), each partner may enter into any contracts or engagements on behalf of the firm in the ordinary trade or business thereof; as, e.g., by buying or selling or pledg ing goods, or by paying or receiving or borrowing monies, or by drawing or negotiating or indorsing or accepting bills of exchange, promissory-notes, and cheques, and other negotiable securities, or by procuring insurances for the firm, or by doing any other acts which are incident or appropriate to such trade or business, according to the common course and usages thereof. So each partner may consign goods to an agent or factor for sale on account of the firm, and give instructions and orders relating to the sale.'

(a) Lindley 192; Bisset 66; Stair i. 16, 4; Bankt. i. 22, 5 et seq.; Ersk. iii. 3, 25; Story on Part. ch. vii.; Code Civil, Act 1859; Pothier, de Société, No. 90 to No. 100; Pothier on Oblig. n. 83, 89.

(b) Rawson and Co. v. Johnstone, 1833, 11 S. 1011; Steel and Co. v.

Hoome and Co., 1834, 12 S. 810; Hampton v. Adam, 1839, 1 D. 500; Ferm v. Harrison, 1 Ross Le. Ca. 350, 3 T. R. 757; Whitehead v. Tuekett, 15 East 399, 3 Ross Le. Ca. 140 ; Robinsons v. Middleton, 1859, 21 D. 1089.

(c) Part. sec. 102.

In considering, therefore, whether any given power is implied or not, the real question is, Whether it is necessary for carrying on the business of the firm, whatever that may be, in the ordinary way, and in ordinary circumstances? Hence there is no implied power to do what, though not necessary, is convenient or beneficial, or what, though unusual, may be defended on the head of urgency. To do such things requires the authority of the principal, that is, in the case of partnership, of the whole or at least a working majority of the partners (a).

arrangements.

It is by no means uncommon for the members of a firm or co- Private partnery to make a private arrangement among themselves, whereby the institorial power is limited or apportioned among their number. A firm of five may, e.g., agree that two only shall have the power of management, or that three shall have the sole charge of one department and two of the other. Such private arrangements, though binding inter socios, are powerless in a question with the public while in ignorance of their existence, to avoid the operation of the implied agency (b). Thus a company of horse-dealers, who have agreed never to warrant a horse, are still effectually bound by the warranty of one of their number, because it is the general practice of the trade to give warranty (c). So a private arrangement by a mercantile firm not to grant bills or notes in the company name has been found no defence against the act of a partner who has transgressed the rule, in the case of a stranger who was not aware of its existence (d). So also a firm was

(a) M'Nair and Co. v. Gray, etc., 1803, Hume 753; Kennedy, 1814, 18 F. C. 122; Mattheson v. Fraser, 1820, Hume 758; Clarke v. Shepherd, 1821, 1 S. 179; Turnbull v. M'Kie, 1822, 1 S. 331; Johnston and Co. v. Phillips, 1822, 1 S. App. 244; Royal Bank of Scotland v. Greenock Bank, 1794, aff. 1797, 3 Paton's App. 595; Tupper v. Rowell and Co., 1858, 20 D. 758; Balfour's Trs. v. Edin. and Nor. Ra. Co., 1848, 10 D. 1240; Brettel v. Williams, 4 Ex. 630; Hawtayne v. Bourne, 7 M. and W. 595; ex parte Chippendale, 4 De G. M. and G. 19; Dickinson v. Valpy, 10 B. and C. 128, 3 Ross Le.

Ca. 561; Crellin v. Brook, 14 M. and
W. 11; Ricketts v. Bennet, 4 C. B. 686.
These cases afford good illustrations of
the doctrines here enunciated. See
'Powers of Majorities.'

(b) See per Lord Tenterden in
Sandilands v. Marsh, 3 Ross Le. Ca.
463, 2 Barn. and Ald. 677; Smith v.
Jamieson, 5 T. R. 601; Craven v.
Widdows, 2 Ch. Cas. 139; Hubert v.
Nelson, Davies, B. L. 8, Coll. 260;
Watson on Part. 168.

(c) 2 Barn. and Ald. 679.

(d) Turnbull v. Mackie, 1822, 1 S. 331; Bruce and Co. v. Beat, Dec. 10, 1765, F. C., M. 4056, House of Lords,

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