certain funds to the common stock, and whose liability shall extend no further than the fund furnished, and who are called special partners. The names of the special partners are not to be used in the firm, which shall contain the names of the general partners only, without the addition of the word company, or any other general term; nor are they to transact any business on account of the partnership, or be employed for that purpose as agents, attorneys, or otherwise; but they may, nevertheless, advise as to the management of the partnership concern. Before such a partnership can act, a registry thereof must be made in the clerk's office of the county, with an accompanying certificate, signed by the parties, and duly acknowledged, and containing the title of the firm, the general nature of the business, the names of the partners, the amount of capital furnished by the special partners, and the period of the partnership. The capital advanced by the special partners must be in cash, and an affidavit filed stating the fact. Publication must likewise be made for at least six weeks of the terms of the partnership, and due publication for four weeks of the dissolution of the partnership by the act of the parties prior to the time specified in the certificate. No such partnership can make assignments or transfers, or create any lien, with the intent to give preference to creditors. The special partners may receive an annual interest on the capital invested, provided there be no reduction of the original capital; but they cannot be permitted

*to claim as creditors, in case of the insolvency *36 of the partnership. It is easy to perceive, that the provisions of the act have been taken, in most of the essential points, from the French regulations in the

■ It has been ruled, in Hubbard v. Morgan, U. S. D. C. for N. Y., May, 1839, that the special partner must, at his peril, see that the law is complied with in all its essentials, or he will be liable as a general partner.

commercial code; and it is the first instance in the history of the legislation of New-York, that the statute law of any other country than that of Great Britain, has been closely imitated and adopted. The provision for limited partnerships in the other states (and which were subsequent in point of time to that in New-York) is essentially the same."

It is a general and well established principle, that when a person joins a partnership as a member, he does not, without a special promise, assume the previous debts of the firm, nor is he bound by them. To render persons jointly liable upon a contract as partners, they must have a joint interest contemporary with the formation of the contract. If, however, goods are purchased in pursuance of a previous agreement between two or more persons, that one of them should purchase the goods on joint account, in a foreign adventure, they are all answerable to the seller for the price, as partners, even though their names were not announced to the seller; for the previous agreement made the partnership precede the purchase, and a joint interest attached in the goods at the instant of the purchase.

If the partnership be a particular one, being formed for some business not of a commercial nature, such partnerships are called particular or ordinary partnerships in the Civil Code of Louisiana, art. 2806. 2707; and the partners are not bound in solido for the debts of the firm, unless such power be specially given, but each partner is bound for his share of the partner. ship debt. Id. art. 2843, 2844. 12 Rob. Lo. R. 247.

b Saville v. Robertson, 4 Term Rep. 720. Young v. Hunter, 4 Taunt. Rep. 582. Poindexter v. Waddy, 6 Munf. Rep. 418. Gow on Partnership, 150-152. Collyer on Part. 735-743. Mr. Justice Story, in his Comm. on Partnership, pp. 227-237, has examined the cases replete with complex and refined discussions, as to the acts preliminary to the formation of a partnership, which do or do not bind the partnership when consummated. The general doctrine, as the learned judge observes, is well summed up by Mr. Collyer.

Gouthwaite v. Duckworth, 12 East, 421. Collyer on Part. 357-360. Story on Part. pp. 230, 231.

Lec. XLIII.]

OF PERSONAL PROPERTY.

36

II. Of the rights and duties of partners in their relation to each other, and to the public.

(1.) Of the interest of partners in their stock in trade. Partners are joint tenants of their stock in trade, but without the jus accrescendi, or right of survivorship; and this, according to Lord Coke, was part of the lawmerchant, for the advancement and continuance of commerce and trade. It would seem, however, to have been a point of some doubt as late as the middle of the seventeenth century, whether the doctrine of survivorship did not apply; for the Lord Keeper, *in Jeffereys v. Small, observed, that it was com- *37 mon, at that time, for traders, in articles of copartnership, to provide against survivorship, though he declared that the provision was clearly unnecessary. On the death of one partner, his representatives become tenants in common with the survivor, and with respect to choses in action, survivorship so far exists at law, that the remedy to reduce them into possession vests exclusively in the survivor, for the benefit of all

the parties in interest. But no partner has an exclusive right to any part of the joint stock, until a balance of accounts be struck between him and his co-partners, and the amount of his interest accurately ascertained. The interest of each partner in the partnership property, is his share in the surplus, after the partnership accounts are settled, and all just claims satisfied; and it follows, that no suit at law can be maintained by one partner against his co-partner, until a final settlement

1 Co. Litt. 182. a.

1 Vern. 217.

• Martin v. Crompe, 1 Lord Raym. 340. Daniel, J., in Proctor v. Poole 4 Dev. N. C. Rep. 369.

has been made, and the balance ascertained, and a promise contracted to pay it.a

(2.) Of stock in land.

If partnership capital be invested in land for the benefit of the company, though it may be a joint tenancy in law, yet equity will hold it to be a tenancy in common, and as forining part of the partnership fund; and the better opinion would seem to be, that equity will consider the person in whom the legal estate is vested, as trustee for the whole concern, and the property will be entitled to be distributed as personal estate.b

a Nicoll v. Mumford, 4 Johns. Ch. Rep. 522. Fox v. Hanbury, Cowp. Rep. 445. Taylor v. Fields, 4 Vesey, 396. 15 Vesey, 559, note, S. C. Parsons, Ch. J., in Pierce v. Jackson, 6 Mass. Rep. 242. Holmes v. Higgins, 1 B. & Cressw. 74. Killam v. Preston, 4 Watts & Serg. R. 14. Foster v. Allanson, 2 Terin R. 479. Fromont v. Coupland, 2 Bingham, 170. One partner having only his separate interest in the surplus, cannot, of course, sell or mortgage an undivided interest in a specific part. Morrison v. Blodgett, 8 N. H. Rep. 338. Lovejoy v. Bowers, 11 Id. 406. Though each partner is bound to bestow his services and labour with due diligence and skill, he is not entitled to any reward or compensation, unless there be an express stipulation between the partners for that purpose. The law does not undertake to measure between the partners the relative value of their services bestowed on the joint business. Thornton v. Proctor, 1 Anst. 94. Caldwell v. Lieber, 7 Paige, 483. Anderson v. Taylor, 3 Iredell, N. C. Rep. 420Burden v. Burden, 1 Ves. & Bea. 170. Story on Partnership, 279. Franklin v. Robinson, 1 Johns. Ch. R. 157. 165. Bradford v. Kimberley, 3 Johns. Ch. R. 433. Whittle v. McFarlane, 1 Knapp's R. 312.

b Thornton v. Dixon, 3 Bro. Ch. Cas. 199. Lord Loughborough, in Smith v. Smith, 5 Vesey, 189. Ripley v. Waterworth, 7 Vesey, 424. Featherstonhaugh v. Fenwick, 17 Vesey, 298. Lord Eldon, in Townsend v. Devaynes, cited in Gow on Partnership, 54. edit. Phil. 1825; in Selkrig v. Davies, 2 Dow. P. C. 242, and in Crawshay v. Maule, 1 Swanston, 521. Sigourney v. Munn, 7 Conn. Rep. 11. Hoxie v. Carr, 1 Sumner, 182-186. Ex parte Banks, New Foundland Rep. 396. Contra, Sir Wm. Grant, in Bell v. Phyn, 7 Vesey, 453, and Balmain v. Shore, 9 Vesey, 500. Gow on Partnership, 54, 55. In Sigourney v. Munn, the English and American authorities were fully examined and the subject discussed; and the doctrine declared that real estate acquired with partnership funds, for partnership purposes, would be regarded in equity as partnership stock, and liable to all the incidents of part.

The point has been extensively discussed and *considered in this country, and the cases are not inconsistent with this principle, when they admit, upon grounds of reason and policy, that real estate, acquired with partnership funds, and held by partners in common, may be conveyed or charged by one partner, on his private account, to the extent of his legal title, whether that legal title covers the whole, or a part of the estate; provided the purchaser or mortgagee dealt with him bona fide, and without notice of the partnership rights, and there was nothing in the transaction from which notice might reasonably be inferred.a In Tennessee, an estate so held in joint tenancy by partners for the purposes of trade, descends and vests in the heirs at law of a deceased partner as real estate.b

nership property. It might, also, by agreement of the parties, be regarded as personal stock of the company. The English Vice-Chancellor, in Randall v. Randall, 7 Simons, 271, reviewed, among others, the cases of Thornton v. Dixon, Ripley v. Waterworth, Bell v. Phyn, Balmain v. Shore, and Crawshay v. Maule, above mentioned, together with the cases of Phillips v. Phillips, 1 Mylne & Keene, 649, and Broom v. Broom, 3 ibid. 443, and came to the conclusion declared in Sigourney v. Munn, that the English chancery doctrine, considering real estate as personal property, was applicable only to lands purchased with partnership capital, for the purposes of a partnership trade.

Forde v. Heron, 4 Munf. 316. M'Dermot v. Laurence, 7 Serg. & Rawle, 438. In Hoxie v. Carr, 1 Sumner, 173, it was held, that where a purchaser of real estate, has actual, or is chargeable with constructive notice, that it was partnership property, the estate is chargeable in his hands with the payment of the partnership debts, even though he had no notice of the partnership debts.

M'Allister v. Montgomery, 3 Hayw. 96. In Yeatman v. Woods, 6 Yerger, 20, real estate held by partners, for partnership purposes, was held to descend and vest, upon the death of one of the partners, in his heirs at law, as real estate. This was upon the strength of the case in 3 Haywood, but with an evident reluctance in the Court to depart from the English rule in equity, which now holds such estate to be personal stock, and distributable as such. In South Carolina, one party cannot transfer the real estate of the firm, and used for its business, by deed, unless it be in a case in which the buying and selling of real estate is the object of the partnership. Robinson, v. Crowder, 4 M'Cord, 519. The deed can convey only his individual share