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showing if the parties are married with a community of goods or with separate property. Where during marriage one of the parties enters into business, the same contract must be registered within a month, provided it contains clauses in the ignorance of which third parties might be led to grant to either of them a false credit. The civil officer and the notary are respectively required to make known whether there exists a marriage contract (a).

Spain.-A contract of dower entered into between a merchant and his wife would confer no right or privilege unless enrolled in the register of the province (b).

Austria. The civil Code provides that the tribunal must take cognizance of the marriage contract (c).

What is a commercial firm.

Right to a firm.

SECTION XI.

COMMERCIAL FIRM.

BRITISH LAW.

The firm is the name, style, or designation by which the trader carries on his commercial operations. It may consist of his own name alone, or of his name joined with that of one or more other persons; or of his name, with the addition of the words" & Co.;" or of two or more names with such addition; or of the name of the undertaking in which the parties are engaged.

Although every man has a right to adopt any name, style, or designation by which to carry on his business, no one can fraudulently use the name of another so as to pass himself for the firm whose name he makes use of. No man has a right to adopt and bear symbols to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose that he is that other person (d). In order, however, to prevent another to use the name of any sary to give a firm or undertaking, it must be proved that the same had been in use and existence (e).

Use and exis

tence neces

right.

What is a firm.

FOREIGN LAWS.

Germany. The firm is the name under which the merchant

(a) French Code of Commerce, §§ 67-69.

(b) Spanish Code, § 19.

(c) Austrian Civil Code, $$ 1230 and

(d) Welch v. Knott, 4 K. & J. 747; Knott v. Morgan, 2 Keene, 213.

(e) Lawson v. The Bank of London, 18 C. B. 84.

a commercial

carries on his business. A merchant who carries on business by himself, or with a dormant partner, is allowed to use his family name or surname, with or without his Christian name, as the name of his firm. He is not allowed to add anything in the firm which might indicate that he has a partner. But he may add anything which may serve to mark clearly the person or the business. Every new firm must be different from any one Distinction of already in existence; and must also be entered in the register arm. of commerce. When a merchant happens to have the same Christian and family name as another merchant already entered in the register, he must, if he wishes to use his own name for his firm, add something to it by which it may be distinguished from the one already registered. If the firm establishes a branch in another place, the same must be entered in the register of trade of that place. And if in that place there is already a firm entered by that name, he must add something to it by which it may be distinguished from the one already entered. The entry of the branch can only take place after the parent establishment has been duly entered. An existing business, acquired by purchase or succession, may be continued under the same name, with or without any addition denoting the time of the succession, provided the former partner, or his heir, expressly consents that the firm shall continue as it was. A firm cannot be sold independently of the business which it represents. In case any other person enters into or withdraws from the partnership the firm may be continued notwithstanding the change, with the express consent of the retiring partner. When the firm is changed or becomes extinct, or when the partners change, then the Board of Trade will make it known in the usual manner. When the change or extinction of the firm has Changes in the not been duly entered in the register of trade, and publicly announced, the party whose name still appears in the firm continues liable for its debts unless he has given special notice to the claimant of his withdrawal. But where the change has been entered and the notice sent, third persons are held to have received such notice. The Commercial Court is to keep a list of the shareholders by order of date. Whoever is injured in his rights by the illegal use of his own firm may sue the party for the discontinuation of the same, and claim damages for the injury suffered.

firm.

CHAPTER III.

INTRODUC-
TORY OBSER-
VATIONS.

Partnership among the

Romans, Ita lians, and Hanse Towns.

Progress of partnerships and companies

in this country.

PARTNERSHIP.

THE want of co-operation of capital and labour in carrying on extensive commercial intercourse, and the necessity of large resources to invest in difficult and hazardous undertakings, early suggested the formation of associations for mercantile purposes. The Romans were in the habit of forming associations for all their operations of trade. The business of banking was carried by companies, and such companies were managed by one or more persons called Magistri, who had the right to bind the partners towards third persons. The Italian merchants recognised in partnerships the only means to preserve and extend their commercial position. The Hanseatic league was itself a great commercial association.

In this country, also, the foreign trade was carried on almost entirely by companies. As early as 1313 a company was formed of the merchants of the staple, and in the sixteenth and seventeenth centuries those great companies were established which carried on the commerce of Britain to the most distant regions of the earth. But though associated together for their mutual help and mutual protection, these companies had no joint stock, and no capital divided by shares. Each member traded upon his own stock and at his own risk, and the conditions of such associations consisted merely in the payment of a certain fine, and in the agreement to submit to certain regulations. It was only in progress of time, and when for the purpose of undertakings of a permanent character demanding a continuous supply of funds, it became necessary to allow persons to invest and to withdraw their capital, that the modern principle of joint-stock companies was introduced. And it was to provide for the necessities which have arisen from such new associations, and to supply

the acknowledged defects of common law, that the various statutes were passed regulating the formation, incorporation, and winding up of joint-stock companies.

sent law.

The law of partnership, notwithstanding the many changes Defects of preit has undergone of late years, is still wanting in some important respects. The recognition of the partnership firm as a moral person, or of private partnerships as quasi corporations, the registration of partnerships, a broader distinction between partnership and agency, and the introduction of the commandite principle, or of limited liability in private partnerships, these are points upon which the English law differs from that of most of the continental nations, and which are likely to be the subjects of further regulations.

SECTION 1.

AGREEMENT TO BECOME PARTNER.

BRITISH LAW.

An agreement to enter into a contract of partnership is binding in common law, and a Court of equity would decree a specific performance of the contract, provided it be for a specific term of time (a), and provided it be concluded and mutually assented to (b), and that all the conditions of the contract are duly performed (c).

Agreement to

become partners binding.

conditions

filled.

Thus, where a prospectus has been issued and shares collected Provided all for a speculation to be carried on, provided a certain amount of must be ful capital is secured or subscribed to, a subscriber is not liable in the first instance unless the capital has been actually obtained (d). But if the parties show by their acts that they Acquiescence to departure have allowed or acquiesced in any departure from the original

(a) M'Neill v. Reid, 9 Bing. 68; Anon., 2 Ves. 629; Hercy v. Birch, 9 Ves. 357; Buxton v. Lister, 3 Atk. 382; England v. Curling, 8 Beav. 129. The decree in this case went only in terms to the ordering a proper partnerships' deed to be executed, and the injunction was continued against one partner acting contrary to his agreement. Practically, the Court cannot compel partners to carry on business together.

(b) Duke v. Andrews, 2 Exch. 290; Fox v. Clifton, 8 Bing. 726.

(c) Dickinson v. Valpy, 10 B. & C. 112; Bourne v. Freeth, 9 B. & C. 640; Howell v. Brodie, 6 Bing. N. C. 44; Burnell v. Hunt, 5 Jur. 650, Q. B.

(d) Pitchford v. Davis, 5 M. & W. 2; Gabriel v. Evill, 9 M. & W. 297; Wood v. Argyll, 6 M. & Gr. 928; Hamilton v. Smith, 5 Jur. N. S. 32.

may be suffi- conditions, and have acted as partners, whilst such conditions were unfulfilled, then the partnership would be held to exist (a).

cient.

What is part nership.

It is a volun. tary contract.

SECTION II.

WHAT IS PARTNERSHIP.

BRITISH LAW.

Partnership is a voluntary agreement whereby two or more competent persons place or bind themselves to place in common money, goods, labour, or skill, or either or all of them, for the purpose of a lawful undertaking, and with a view to a mutual participation in profit and loss.

Partnership is a voluntary contract of the parties and not a relation created by the operation of law or resulting from a community of interest or from joint tenancy in land or goods. Thus the creditors of a bankrupt united by a community of interest in the proceeds of the assets are not partners. Workmen compulsorily or spontaneously engaged to arrest the progress of a fire are not partners, though their wages should consist in a portion of the property saved to be divided among them. Partowners of ships are not partners (b). A partnership must, moreprofit and loss. over, be formed with a view to profit or loss. Clubs and other societies not founded for such purposes are not partnerships (c).

Must be formed for

Each partner must bring something.

Must be for a

Each partner must bring something valuable, though it may be in different proportions and in different kinds. The capital invested may consist of stock or effects, labour or skill, land or goods, or even the communication of a discovery in art or science, the use of a patent, or of a factory, or of a machine, any thing, in short, that is valuable for the promotion of the joint undertaking.

A partnership must have a lawful object in view. A partnerlawful object. ship for smuggling or gambling or any other illegal object would

be invalid.

(a) Tredwen v. Bourne, 6 M. & W. 461; Galvanised Iron Company v. Westoby, 8 Exch. 17; Steigenberger v. Carr, 3 Scott, N. R. 466.

(b) Ex parte Young, 2 Ves. & B. 242; Ex parte Harrison, 2 Rose, 76.

(c) Caldicott v. Griffiths, 8 Exch. 898; Flemyng v. Hector, 2 M. & W. 172.

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