carried on by them, or if they hold themselves out to the world as joint traders, they will be held responsible as partners to third persons, whatever may be the real nature of their connexion, or of the agreement under which they act. Actual intention is requisite to constitute a partnership inter se. If a person partakes of the profits, he is answerable as a partner for losses, on the principle, that by taking a part of the profits, he takes from the creditors a part of the fund which is the proper security for the payment of their debts.b

*It is not essential to a legal partnership, that it *28 be confined to commercial business. It may exist between attorneys, conveyancers, mechanics, owners of a line of stage-coaches, artisans or farmers, as well as between merchants and bankers. The essence of the association is, that they may be jointly concerned in profit and loss, or in profit only, in some honest and lawful business, not immoral in itself, nor prohibited by the law of the land; and this is a principle of universal reception. The contract must be for the common benefit of all the parties to the association; and though the shares need not be equal, yet, as a general rule, all must par

■ Hazard v. Hazard, 1 Story's R. 371.

b Voet. Comm. ad Pand. 17. 2. 1. De Grey, Ch. J., Grace v. Smith, 2 Blacks. Rep. 998. Eyre, Ch. J., Waugh v. Carver, 2 H. Blacks. 247. Cheap v. Cramond, 4 Barnw. & Ald. 663. Peacock v. Peacock, 16 Vesey, 49. Spencer J., Dob v. Halsey, 16 Johns. Rep. 40. Supra, p. 26. n. e. • Willet v. Chambers, Cowp. 814. Gould, J., Coope v Eyre, 1 H. Blacks. 43. Pothier, Traité de Soc. No. 55. Fromont v. Coupland, 2 Bingham, 170. Associations for buying or selling personal property as factors or brokers, or for carrying personal property for hire in ships, are in the Louisiana Code, art. 2796, termed commercial partnerships. There may be a partnership to trade in land, and limited to purchasing, and the profit and loss divisable as stock. This result does not necessarily follow from a joint purchase. Campbell v. Colhoun, 1 Penn. 140.

Dig. 18. 1. 35. 2. Pothier, Traité du Con. de Soc. n. 14. Briggs v. Lawrence, 3 Term Rep. 454. Aubert v. Maze, 2 Boss. & Pull. 371. Griswold v. Waddington, 16 Johns. Rep. 489.

take of the profit in some ratable proportion; and that proportion, as well as the mode of conducting the business, may be modified and regulated by private agreement, at the pleasure of the parties. If there be no such agreement on the subject, and no evidence to the contrary, the general conclusion of the law is, that the partnership losses are to be equally borne, and the

profits equally divided ; and this would be the *29 rule, *even though the contribution between the

parties consisted entirely of money by one, and entirely of labour by another. In equity, according to Pothier, each partner should share in the profit in proportion to the value of what he brings into the common stock, whether it be money, goods, labour or skill; and he should share in the loss in a ratio to the gain to which he would, in a prosperous issue to the business, have been entitled. He admits, however, that the proportion of gain and loss may be varied by agreement; and the agreement may render the extra labour of one of the concern, equal to the risk of loss, and a substitute for his share of loss.c

It is not necessary that every member of the company should, in every event, participate in the profits. It would be a valid partnership, according to the civil law, if one of the members had a reasonable expectation of profit, and was, in consequence of his particular art and calling, employed to sell, and to have a share of the profits if they exceeded a certain sum, provided this was granted to him by reason of his pains and skill,

30.

Collyer on Partn. p. 11. Gow on Partn. p. 9. Story on Partn. pp. 29,

Inst. 3. 26. 1. Pothier, ub sup. n. 73. 49. Gould v. Gould, 6 Wendell, 263.

Peacock v. Peacock, 16 Vesey, Parke, J. in Farrar v. Beswick, 1

Mood. & Rob. 527. Story on Partnership, pp. 25–37. Code of Louisiana, art. 2896. Mr. Justice Story has fully examined this point.

• Pothier, ub sup. No. 15-19. n. 25.

and not as a gratuity. So one partner may retire under an agreement to abide his proportion of risk of loss, and take a sum in gross for his share of future uncertain profits; or he may take a gross sum as his share of the presumed profits, with an agreement that the remaining partners are to assume all risks of loss. But a partnership, in which the entire profit was to belong to some of them, in exclusion of others, would be manifestly unjust; and as between the parties themselves, it would not be a proper partnership. It would be what the Roman lawyers called societas leonina, in allusion to the fable of the lion, who, having entered into a partnership with the other animals *30 of the forest, in hunting, appropriated to himself all the prey.d

There may be a general partnership at large, or it may be limited to a particular branch of business, or to one particular subject. There may be a partnership in the goods in a particular adventure, or it may be confined to the profits thereof. If two persons should draw a bill of exchange, they are considered as partners in respect to the bill, though in every other respect they remain distinct. By appearing on the bill as partners, the person to whom it is negotiated is to collect the relation of the parties from the bill itself, and they

⚫ Dig. 17. 2. 44. Pothier, ub. sup. n. 13. Pothier, Traité de Soc. n. 25, 26.

Bailey v. Clark, 6 Pick. 372.

• Lowry v. Brooks, 2 M'Cord's Rep. 421. Dig. 17. 2. 29. 2. Pothier, ub. sup. No. 12. Institutes of the Laws of Holland, by J. Vander Linden, translated by J. Henry, Esq., p. 571. 2 Bell's Comm. 615.

• Lord Mansfield, Willett v. Chambers, Cowp. 816. No. 1841.

f Solomons v. Nissen, 2 Term, 675. Holmes v. Higgins, 1 Barnu. & Cress. 72. 74. Pothier, Traité du Con. de Soc. No. 54.

Code Napoleon,

Ex parte Gellar, 1 Rose, 297.

Mayer v. Sharpe, 5 Taunton,

are not permitted to deny the conclusion.

This prin

ciple has not been extended to the case of two persons signing a joint note, though it is not easy to perceive a distinction between the cases.c

Carvick v. Vickery, Doug. 653, note. De Berkom v. Smith, 1 Esp. 29. The doctrine in Carvick v. Vickery was afterwards repudiated, and it is since held, that co-drawers, or co-payees, or endorsers, not being commercial partners, must each endorse the bill as a joint contract, and each receive notice of default, and demand of payment on each must be made. Willis v. Green, 5 Hill's N. Y. Rep. 234. Sayre v. Frick, 7 Watts & Serg. 383. So, by statute in Mass. R. S. 700, sec. 14, one or two or more joint contractors cannot, by promise or acknowledgment, take a case out of the statute of limitations.

Hopkins v. Smith, 11 Johns. Rep. 161.

• The Roman law, which has been followed in France, distinguished be. tween two kinds of universal partnership, the one universorum bonorum, and the other, universorum quæ ex qæstu veniunt. By the first, the parties put into common stock all their property, real and personal, then existing, or thereafter to be acquired. All future acquisitions, by purchase, gift, legacy or descent, went into this partnership as of course, without assignment, unless the gift or legacy was declared to be under the condition of not being placed there. Such a partnership was charged with all the debts of the parties at its commencement, and with all the future debts, and personal and family expenses. The validity of such a partnership was not questioned, notwithstanding it might be extremely unequal, and one might bring much more property into it than another, and acquire ten times as much by gift, purchase or succession, and notwithstanding one partner might have a family of children, and another be destitute of any. (Pothier, Traité du Con. de Soc. No. 28-42.) We need not be apprehensive that such a part. nership will become infectious, for it appears to be fruitful in abuse and discord; and in the Code Napoleon, No. 1837, the more forbidding features of the connexion are removed. Though it embraces all the existing property of the parties, and every species of gains, it does not, under the code, extend to property to be acquired by gift, legacy or inheritance, and every stipu lation to that effect is prohibited. The Civil Code of Louisiana, which has throughout closely followed the Code Napoleon, has recognised these universal partnerships applying to all existing property; but they must be created in writing, and registered, and they are under the checks mentioned in the French code. Civil Code of Louisiana, No. 2800-2805.

The other species of universal partnership applies only to future profits, from whatever source they may be derived; and it is formed when the parties agree to a partnership without any further explanation. In this case, the separate acquisitions of each, by legacy or inheritance, are kept separate, and

(2.) Of dormant partners.

*31

*There is no difficulty, in the ordinary course of business, with the case of an actual partner, who appears in his character of an ostensible partner. The question as to the person on whom the responsibility of partner ought to attach in respect to third persons, arises in the case of dormant partners, who participate in the profits of the trade, and conceal their names. They are equally liable when discovered, as if their names had appeared in the firm, and although they were unknown to be partners at the time of the creation of the debt.a The question arises, also,

do not enter into the common mass; nor does it embrace present real property, but only the future issues and profits of it; and it is not, of course, chargeable with existing debts, though it was formerly chargeable with them when made in that part of France, under the Droit Coutumier. (Pothier, ub. sup. n. 43-52. Code Napoleon, No. 1838.) The same kind of general partnerships, embracing all the present and future property of the parties, is known in the laws of Spain and of Holland. Institutes of the Civil Law of Spain, by Doctors Asso & Manuel, b. 2. 15. Institutes of the Laws of Holland, by J. Vander Linden, translated by J. Henry, Esq., p. 573.

Robinson v. Wilkinson, 3 Price's Exch. Rep. 538. Lord Loughborough, 1 H. Blacks. Rep. 48. Pitts v. Waugh, 4 Mass. Rep. 424. Duncan, J., 8 Serg. & Rawle, 55. Porter, J., 5 Miller's Louis. Rep. 406. 408. Swan v. Steele, 7 East, 210. Binney v. U. S. Bank, 5 Peters, 529. 561. A judg ment against an ostensible partner, and not knowing of a dormant partner, is no bar to an action against all the partners. A judgment being a mere security, does not change any other collateral security, until satisfaction. Crews v. Owens, 1 Richardson's S. C. Rep. 111. Robinson v. Wilkinson, 1 Exch. R. 417. Drake v. Mitchell, 3 East, 251. In Beckham v. Drake, 9 Meeson & W. 79, A. B. and C. were partners, and the latter a dormant partner, and the two first entered into a written contract, without the other being named or signing the contract; it was held, that a suit lay against all the three partners-the dormant partner not being known as such to the plaintiff when the contract was made. The partners who signed the contract had authority to bind the dormant partner by parol contract, whether with or without writing, though it would be different in the case of sealed instruments. The decision in Beckham v. Knight, in the C. B., was overruled, after much discussion and consideration on this point.

If partners agree that the business shall be carried on in the name of one