unless the arbitrators allowed a longer time for it. If, however, no further delay was granted, the arbitrators might adjudicate upon the documents pro tem. In case of difference of opinion the arbitrators might nominate an umpire, unless the same was nominated in the deed of submission. And if the arbitrators differed in such nomination, the same was to be named by the Tribunal of Commerce. The award made in writing and deposited at the Tribunal of Commerce was rendered executory by an ordinance of the tribunal. These were the provisions of New French the French Code of Commerce, but by the law of the 17th July, 1856, forced arbitration was suppressed; the arts. 51 to 63 of the code were abrogated, and all disputes among partners were made to be within the competence of the Tribunal of Commerce. Yet voluntary arbitration remains, and commercial questions may be submitted to the decisions of arbitrators in the ordinary manner (a). Italy. The code of the Two Sicilies provided the same mode of settling partnership disputes by arbitration as the French code. Portugal. All differences for the non-execution of agreements on the part of one of the partners are to be settled by arbitration, and it is forbidden to stipulate otherwise. All appeals from the award of the arbitrators are carried to the Tribunal of Commerce. The submission may be by private ct or by deed. In case of arbitration in a place where there exists a tribunal of commerce, the award cannot be confirmed by the president until after it has been reviewed and confirmed by the juries of the tribunal. If the juries of the tribunal do not agree with the award, the president may cite the interested parties to appear before the Court to sign a deed by which they shall declare to submit to the award, to abandon all recourse, and that they simply demand a confirmatory decree, in which case the president will confirm the award of the arbitrators. If the parties or one of them refuse to sign such deed, the president will appoint a time for hearing the case, and will proceed as in case of an appeal in ordinary justice (b). Spain. The same law exists here as prescribed by the French code (c). (a) French Code of Commerce, §§ 15 -63, and Law of 17 July, 1856. (b) Portuguese Code, $$ 48-7760. (c) Spanish Code of Commerce, §§ 323-325. law. Legal rights between copartners for money lent. Non-payment of instalments. Distinct transaction. Balance struck. Not for work and labour on account of the partnership. SECTION XVI. LEGAL AND EQUITABLE REMEDIES BETWEEN PARTNERS. BRITISH LAW. A partner has a right of action against his copartner for money lent for the purpose of launching the partnership (a), for the non-performance of an agreement to pay certain instalments for the formation of a partnership (b), and for the neglect to fulfil a covenant to contribute capital and labour to the joint stock of the partnership. So where a publisher undertakes with an author to publish a work for their joint benefit, an action will lie for the refusal to complete the manuscript (c). An action may be maintained by a partner against his copartner upon any transaction held by special agreement distinct from the ordinary business of the concern (d), where the debt is a separate debt, where a negotiable instrument has been given for value received on partnership account (e), and where a partnership account has been settled and a balance struck (f). When there is a covenant to render accounts at specific periods, an action could be maintained for the nonperformance of such a covenant, and damages may be recovered for breach of any stipulation in the partnership articles. But a partner cannot maintain an action against his copartner for work and labour performed or money expended on account of the partnership (g), nor for a contribution for damages for a loss or negligence affecting the partnership (h), nor for contribution for losses and expenses of the partnership so long as the partnership accounts are unsettled (i). (a) Ex parte Notley, 1 Mont. & A. (b) Brown v. Tapscott, 6 M. & W. 123. (e) Smith v. Barrow, 2 T. R. 476; (f) Moravia v. Levy, 2 T. R. 483; Foster v. Allanson, 2 T. R. 479; Wray v. Milestone, 5 M. & W. 21; Henley v. Soper, 8 B. & C. 16; Winter v. White, 1 Bro. & Bing. 350; Carr v. Smith, 5 A. & E. N. S. 128. (g) Holmes v. Higgins, 1 B. & C. 74; Smith v. Barrow, 2 T. R. 476. (h) Pearson v. Skelton, 1 M. & W. 504. (i) Brown v. Tapscott, 6 M. & W. 123; Burnell v. Minot, 4 Moore, 342; Holmes v. Williamson, 6 M. & S. 158; Edger v. Knapp, 6 Scott, N. R. 712. remedies in of articles of partnership. The Court of Equity will interfere by injunction where there Equitable is a breach of contract in the articles of partnership sufficiently case of breach important to authorise the complaining party to call for a dissolution; also where the partnership property is applied to other purposes than those authorised by the articles, or where it is taken in execution for the separate debts of one partner (a). of receiver. The Court of Equity will appoint a receiver or a manager of Appointment a partnership where there has been some breach of the duty of a partner, or of the contract of partnership, or some culpable conduct, or in cases of a collusion, or of exclusion of a partner from his full share of management, provided in all cases sufficient cause is shown to entitle the plaintiff to a dissolution (b). The Court would not decree an account between partners unless upon the dissolution of the partnership, though it might in some cases direct an account of past transactions whilst the partnership is being carried on. But after six years' acquiescence unexplained by circumstances, the Court would not decree an account between a surviving partner and the estate of a deceased partner (c). Court will not account unless upon dissolu decree an tion. SECTION XVII. ACTIONS BY AND AGAINST PARTNERS. BRITISH LAW. Where the same person is a member of two different firms the partners of one could not maintain an action against the partners of the other for transactions which took place while such person was partner of both firms, and that whether the action be brought in the lifetime of the common partner or after his decease, yet after his decease the surviving partner of the one house may sue the surviving partner of the other house Where the same person is member of two firms. No action maintained when the partnership is illegal. All who were parties to the contract must join. Contracts not under seal may be enforced by parties benefited. Optional to join nominal or dormant partner. Guarantee. upon transactions subsequent to the decease of the com Where the partnership is illegal no action could be In all actions to enforce contracts made with the firm, all who were partners at the time the contract was made must join in the suit (c). Where a contract is under seal, if it was made in the name of one partner only, he alone can sue, and if it was in the name of all the partners, then all must join in it (d). Yet a contract not under seal may be enforced either by those for whose benefit it was effected or by those whose names appear in the contract (e). So an action may be maintained upon a bond expressed to be payable to a mercantile firm by the persons who constituted the firm when the bond was executed (f); though if a note has been made payable to one partner to secure a debt due to the firm, the rest cannot join to sue thereon (g). It is optional with a dormant partner, as well as with a nominal partner having no interest, unless he be expressly named, to join in a suit with the ostensible partner; but both of them may be sued for the debts and contracts of the partnership (h). When new partners are admitted, those only who originally made the contract must sue on securities granted to the original partners (i). So a guarantee made in favour of an existing firm, or a continuing contract made with such, would cease to be in force upon any change in the old firm, except a special provision has been made importing a continuing liability notwithstanding any change in the firm (a). libel. Partners in their collective capacity possess the same rights Actions for and remedies in equity against third persons which are enjoyed by every private individual. So an action for libel or tort or a defamation of the firm may be brought jointly, but the partners can recover damages for such injuries only as they may have sustained in their joint trade or business (b). Actions against the firm. In an action against the firm all those who were partners at the time the contract was made may be joined as defendants (c). A partner who was an infant when the contract was made need not be joined as a defendant unless he has since attained his majority and ratified the contract in writing (d). A bankrupt Bankrupt partner who has obtained his certificate need not be joined in not be joined. the suit as co-defendant. partner need Where one of the partners dies the action may be brought Surviving partner may against his survivors. All partners being jointly and seve- be sued. rally bound for all the debts of the partnership, it is in the Creditor may option of the creditor to sue either partner for his debt, or he partner. may discharge any of them without affecting the liability of the others. sue either SECTION XVIII. DISSOLUTION OF PARTNERSHIP. BRITISH LAW. solution. The dissolution of partnership takes place by the death of Causes of disone or more of the partners; by the expiration of the time for which it had been constituted; by the happening of the Death. event which the deed contemplated for its dissolution; by Bankruptcy. the bankruptcy of the partnership; by the bankruptcy, out- Felony. lawry, or felony of any one of the partners; and by the mar- Marriage of riage of a feme sole partner. Just causes for decreeing a dissolution may also be the impossibility of proceeding in the busi- Impossibility of proceeding. (a) Metcalf v. Bruin, 12 East, 400; Barclay v. Lucas, 1 T. R. 291; Robson v. Drummond, 2 B. & Ad. 303. (b) Haythorn v. Lawson, 3 C. & P. 196. (c) Bristow v. James, 7 T. R. 257; Lodge v. Dicas, 3 B. & Ald. 611. (d) Thornton v. Illingsworth, 2 B. & C. 824; Ex parte Henderson, 4 Ves. 164. feme sole. |