attorney, to pay out of his own private purse the whole amount due to the attorney for the joint defence; it was held, that the partner so paying the money was entitled to an action for contribution against the others, to recover from them their several shares of the joint payment, as in the case of ordinary joint contractors. (u)

Particular transactions between partners not connected with the general account of profit and loss.-Persons are not, although they may happen to be general partners in trade, precluded from suing each other upon special contracts entered into with each other individually on their own private account, although such contracts may be made concerning the partnership business, and be intended to promote the general prosperity of the copartnership. If one partner, for example, lends money to another to be employed in the business, or pledges his own private credit to enable his copartner to obtain money or goods for the purpose of making up his proportion of the contribution to the general stock, the partner who has so lent his money, or pledged his credit, would have the same remedy against the copartner in whose favour he had acted, as any third party would have, (x) as the transaction is a private matter between the partners, totally distinct and insulated from the general partnership dealings, and the general account of profit and loss. So if one partner receives money which properly belongs to his copartner, and not to the partnership, and appropriates it by mistake to the use of the firm, he is of course responsible to the partner whose separate money it is, for the repayment to him of the amount. (y)

The plaintiff, the defendant, and the plaintiff's brother, were jointly engaged in partnership in the butter trade, the plaintiff and his brother buying the butter in Ireland, and consigning it to the defendant, to be sold in London for the joint benefit of the three. A large quantity of butter being required by the defendant for sale, the plaintiff's brother contracted with various Irish dealers for a supply, and asked the plaintiff to accept certain bills of exchange, to be tendered in payment of the butter in Ireland. In order to cover the risk of the transaction, and secure the due transmission of funds to meet the bills when they became due, the plaintiff procured from the defendant, the London partner, the following guarantee :- "Sir-Your brother having drawn two bills on you, one for 2287., due the 28th inst., another for 3007., due the 4th of January next, on account of butters sold here for our joint account, the proceeds of

(u) Edger v. Knapp, 6 Sc. N. R. 712, 717. (x) Elgie v. Webster, 5 M. & W. 518. Ex parte Notley, 1 Mon. & Ayr. 48. Bosanquet,

J., Helme v. Smith, 5 M. & P. 744; 7 Bing.
714, s. c. Hesketh v. Blanshard, 4 East, 144.
(y) Smith v. Barrow, 2 T. R. 476.

which are now in my hands, if you will accept the bills, I hereby engage to provide for them when at maturity." The plaintiff accordingly accepted the bills, but no money having been sent him by the defendant, his London partner, he was obliged to pay them when due out of his own pocket; and it was held that the plaintiff was entitled to recover the amount from the defendant, notwithstanding the partnership, as the bill transaction was a private matter between the two, totally distinct and separate from the general partnership account. "I abstain," observes Best, C. J., "from giving any opinion as to the question of variance, (upon the special count on the guarantee,) it being quite clear that the plaintiff is entitled to recover on the count for money had and received. It has been objected that this is a partnership transaction, and no doubt the money came to the defendant as the money of all the three partners; but that which transpired between the plaintiff and the defendant took it out of the joint or partnership account, and placed it to that of the plaintiff. The defendant says, I have money in my hands, the produce of certain butters, and if you will accept certain bills, I will hold the money on your account, in case of your being called on to pay the bills. When the bills were paid, therefore, the money in the defendant's hands became separated from the partnership account; and where a contract is executed, as by the payment of these bills, the party may recover on the common counts, though it is necessary to resort to a special count, where the contract is executory.(z)

Two persons who were partners in the proceeds of a particular voyage, settled and adjusted their accounts as to that voyage; and upon that settlement of the accounts, it was agreed that the defendant should pay the broker's commission; and in consideration of his undertaking so to do, the plaintiff allowed him a much larger share of the profits than he would otherwise have been entitled to. The defendant, however, broke his word, and the plaintiff was obliged to pay the broker himself, whereupon he brought an action against the defendant to recover the amount; and it was contended that this was a partnership debt, that the money had been paid by the plaintiff on his own account as much as on account of the defendant, and that it could not be recovered upon the common count in the declaration, as money paid for the use of the defendant; but it was held that the agreement between parties had made the amount the individual debt of the defendant, and that it was the same as if the plaintiff, at the time of the settlement of the accounts, had handed over the money

(2) Coffee v. Brian, 3 Bing. 54, 10 Moore, 345.

to the defendant to pay the broker, and the latter had omitted so to do. (a)

Of the DISSOLUTION of a PARTNERSHIP as between the partners themselves.

Partnerships at will.-If no time has been limited for the dissolution. of a general trading partnership, it is a partnership at will, and may be dissolved at any time at the pleasure of any one or more of the partners.(b) If the copartnership has been contracted by parol, it may be renounced by parol; but if it has been established by deed, the renunciation and disclaimer of it by the party who withdraws from the firm ought to be made by deed. The renunciation in the case of a general trading partnership cannot of course have a retrospective effect; it cannot affect the position of the partners inter se as regards the joint transactions and undertakings already commenced, and then in actual operation. "All the subsisting engagements must be wound up, but the parties cannot enter into any new engagements."(c) And in the case of partnerships in particular transactions, such as the profit and loss of a particular voyage, or the manufacture and sale of a particular article, or the completion of a piece of work undertaken by two or more persons on joint account, and for their joint profit, there can be no withdrawal by one of the partners in the joint undertaking to the prejudice of the others, after the joint enterprise has been fairly commenced. "A fraudulent and unseasonable renunciation is never permitted, whether the contract of partnership has provided against it or not. For this would be repugnant to that fidelity which being essential to the contract of partnership, is always understood to be comprehended in it. If a partner quits whilst he is on a journey, or engaged in any other business for the copartnership, or if his quitting obliges the partners to sell any merchandize before the time, he shall be bound to make good the loss and damage which his leaving the partnership under the circumstances shall have occasioned." (d)

A partnership will also be dissolved by the bankruptcy, or insolvency or death of any one or more of the partners, (e) or by his outlawry or attainder for treason or felony,(f) and also by the marriage of a female partner.(g)

(a) Wilson v. Cutting, 10 Bing. 436; 4 M. & Sc. 268, s. c.

(b) So by the civil law, "manet autem societas eousque, donec in eodem consensu perseveraverint. At cum aliquis renuntiaverit societati solvitur societas. Instit. lib. 3, tit. 26, § 4. Dig. lib. 17, tit. 2, lex 65, § 3.

(c) Lord Eldon, Peacock v. Peacock, 16 Ves.

57.

(d) Domat, (societé,) tit. 8, s. 5, No. 3, 7. Dig. lib. 17, tit. 2. 1, 14, 65.

(e) Fox v. Hanbury, Cowp. 445. Dig. lib. 17, tit. 2, lex 65.

(f) Collyer on Partnership, 68-75, 154. (g) Nerot v. Burnand, 4 Russ. 260.

Partnerships for terms of years.-If the partners have agreed that the partnership shall continue for a definite period, it can only be dissolved before the expiration of the time limited by the mutual consent of all the parties, or by the bankruptcy, outlawry, felony, or death of any one or more of them, or by the decree of a court of equity. If the copartnership for an unexpired term has been created and constituted by deed, the mutual agreement of the partners to dissolve it must (at common law) likewise be established and authenticated by deed. But if the relationship has been contracted by simple contract, the agreement to dissolve it may be made by simple contract.(h) The partnership is also dissolved by the death or insolvency of one of the partners, or by an act of bankruptcy, followed up by fiat and adjudication, and also by assignment by one partner of his share and interest in the business. (1) And a dissolution by one partner is a dissolution as to all; so that the affairs of the old concern must be wound up from the day of the retirement.

SECTION III.

PARTNERSHIPS AS REGARDS THE PUBLIC AND THIRD PARTIES.

Liabilities of partners to third parties upon contracts under seal.— Although a partner may sue, as we have already seen, upon a covenant made with him in his own name, or with the firm, by its trading appellation, although he has not executed the deed, yet he cannot be sued thereon. In order to make him liable upon a deed, it must be shown that he actually sealed and delivered the deed in person, or that it was done by another for him, in his presence, and by his commandment; (a) or if executed by one partner on behalf of the firm generally as the deed of the partnership, it must be shown that the partners sued upon it authorized their copartner to execute the deed by a power of attorney under seal. (b) One partner has no implied authority to bind the others by deed. Thus, where a deed inter partes was expressed to be made between

(h) Eodem modo quo ligatur eodem modo dissolvitur ante, 144.

(1) Fox v. Hanbury, Cowp. 445. Ex parte Smith, 5 Ves. 295. Vulliamy v. Noble, 3 Mer. 610. Heath v. Samson, 4 B. & Ad. 175.

(a) Ball v. Dunsterville and Lord Lovelace's case, ante, 8, 9. Burn v. Burn, 3 Ves. 573. Hall v. Bainbridge, 1 Sc. N. R. 151.

(b) Horsley v. Rush, cited 7 T. R. 209.

the several partners of a firm of the first part; certain other persons of the second part; and the plaintiff of the third part; and the deed was executed by one of the partners for himself and his copartners, but the copartners were not present at the execution of the instrument, and had not given any authority under seal to their copartner to execute deeds in their behalf; it was held that the deed was the sole deed of the partner who had signed and executed it, and that the others could not be sued thereon. (c) So where the joint security of a firm in partnership was intended to be taken for the payment of a debt, and one of the partners caused a bond to be made out in the name of the firm, "Davis and Marsh," and sealed and delivered it as the deed of the partnership, it was held that it could not bind the other partners of the firm, as they had given their copartner no authority under seal to enter into and execute deeds in their behalf or on behalf of the firm; and that it could operate only as the sole deed of the partner who had executed it.(d)

The acting of one partner for another is analogous to the case of an agent acting for his principal, who cannot bind his principal by deed without being authorized by deed so to do. When it was contended before Lord Kenyon, that by the usage of merchants a partner was considered to be empowered to bind his copartners by deed as well as by bills of exchange and promissory notes, his lordship observed, that although in mercantile transactions, in drawing and accepting bills of exchange, it never was doubted but that one partner might bind the rest, yet that the power of binding each other by deed was then for the first time insisted upon, and would, if permitted, be attended with alarming consequences. "It has been said," he observes, "that if a partnership be constituted by writing under scal, that gave authority to each partner to bind the others by deed but I deny that consequence just as positively as the former; for a general partnership agreement, though under seal, does not autho rize the partners to execute deeds for each other, unless a particular power be given for that purpose. This would be a most alarming doctrine to hold out to the mercantile world; if one of the partners could bind the others by deed, it would extend to the case of mortgages, and would enable a partner to give to a favourite creditor a real lien on the estates of the other partners."(e)

(c) Harrison v. Jackson, 7 T. R. 207. Steig

litz v Egginton, Holt, N. P C. 141.

(d) Elliott v. Davis, 2 B. & P. 339,

(e) Harrison v. Jackson, 7 T. R. 210.