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Power of attorney to J. G. and

recover effects.

Leasehold and singular the leasehold messuages, lands, tenepremises, and debts.

ments, and houses; and of and in all and singular the debts and sums of money, and all other the estate, effects, profits, and interest whatever, of and belonging, or due and owing to them the said, &c., as such copartners as aforesaid; and all the estate, right, title, interest, property, claim and demand whatsoever, of him the said T. F., of, in, to, or out of the said one undivided third part or share and premises, hereinbefore assigned, or intended so to be, and every part thereof; to have and to hold the said one undivided third part or share, and premises, unto the said J. G. and J. J., their executors, administrators, and assigns, as tenants in common, to and for their own use and benefit. And for the better enabling the

said J. G. and J. J., their executors and administraJ. J. to bring tors, to receive the said debts, sums of money, and action, &c., to other premises, hereby assigned, or intended so to be,

he, the said T. F., hath made, ordained, constituted, and appointed, and by these presents doth irrevocably, &c., the said J. G. and J. J., jointly and severally, his true and lawful attorney and attorneys, in the name of the said T. F., or in their or his own names or name, as they shall think necessary or expedient, to ask, demand, sue for, recover, and receive, by all lawful and equitable ways and means whatsoever, of and from all and every person and persons whom it doth, shall, or may in anywise concern, or who ought to pay the same, the said sums of money, debts, and other premises intended to be hereby assigned ; and in case of non-payment thereof, or of any part thereof respectively, to commence and prosecute any suit or action for the recovery thereof, or of any part thereof; and on receipt thereof, or any part thereof respectively, from time to time to sign, seal, give, and execute, good and sufficient releases, acquittances, and discharges for the same; and also, for any of the purposes aforesaid, to appoint and substitute one or more attorney or attorneys under them, the said, &c., their executors or administrators; and from time to time

Substitute.

and any

to displace or remove any such attorney or attorneys,

other

person or persons in his or their place and stead, to substitute and appoint; and generally to make, do, and execute all and every such act and acts, thing and things, as shall or may be necessary or expedient for obtaining, getting in, and receiving the said sums of money, debts, and other premises hereby assigned, or intended so to be, as fully and effectually, in all respects, and to all intents and purposes, as he, the said T. F., could or might have done in case these presents had not been made. And the said T. F. doth hereby agree to allow, ratify, and confirm, all and whatsoever the said J. G. and J. J., their executors, administrators, and assigns, or their substitute or substitutes, shall lawfully do or cause to be done in the premises, according to the true intent and meaning of these presents. And the said to pay debts. J. G. and J. J., for themselves, jointly and severally, and for their respective heirs, executors, and administrators, do hereby covenant, promise, and agree,

to and with the said T.F., his executors and administrators, that they, the said, &c., or one of them, their, or one of their heirs, executors, or administrators, shall and will, within the space of three calendar months now next ensuing, pay and discharge all the debts, and perform all the contracts and engagements, which the said, &c., or any of them, are liable to pay or keep, for or on account of the said copartnership, and from time to time, and at all times hereafter, save, defend, keep harmless and indemnified the said T. F., his heirs, executors, and administrators, and his and their lands and tenements, goods and chattels, of and from the said debts, contracts, and engagements, and of, from, and against all actions, suits,

costs, charges, damages, claims, and demands whatsoever, on ac

e As all the partners are jointly liable for the debts and engagements of the firm contracted during the partnership, it is usual therefore for an indemnity to be given to the retiring partner, (see Bedford v. Deakin, 2 B. and A. 210.)

Mutual release.

count thereof. And, lastly, the said T. F. on the one part, and the said J. G. and J. J. on the other part, do hereby acquit, release, and discharge the others and other of them of and from all and all manner of action, and cause and causes of action, suits, accounts, sums of

money, claims, and demands whatsoever, either at law or in equity, which any or either of them, the said, &c., their executors and administrators, now have or hath, or may have, against the others or other of them, their or his heirs, executors, or administrators, for or by reason or on account of the said copartnership, or of any of the covenants and agreements contained in the indenture of copartnership. In witness, &c.

OBSERVATIONS ON ARTICLES OF PARTNERSHIP.

As persons do not, ordinarily speaking, enter into partnership with those in whom they do not repose confidence, it has often occurred that the terms of partnerships, even of a most important character, have not been reduced into writing, the memory and honour of the parties being their only protection; but when it is considered how treacherous the memory often is, and how frequently the rights of third persons depend upon contracts of this character, the propriety of having them reduced into writing must be obvious. Mr Jarman, an able writer, to whom I have before referred, gives the following advice for the guidance of those to whom the preparation of partnership contracts may be entrusted :—“ In preparing partnership deeds,”e says that author, “ should be taken to mark with precision and clearness the nature of the business ; the period at which the partnership is to commence; the term of its duration; the proportions in which the parties are to share the

care

d As to the duty of a partner upon retiring, see post. p. 572.

Jarman's edition of Bythewood, vol. vii. 30.

ners.

profits and losses, and advance the capital; the mode in which the accounts are to be kept, and the business in general carried on; the degree of attention to be paid by the respective partners; the grounds, if any, on which one party shall be empowered to expel or exclude the other from the concern; whether, on the decease of either of the partners, his personal representatives are to have the option of succeeding to his share; in what manner, on the dissolution of the partnership, by effluxion of time, death, expulsion, or otherwise, the partnership accounts are to be adjusted, and the affairs wound up; and, lastly, whether any and what stipulation is to be made for referring disputes to arbitration."

The articles of copartnership, though binding be- Dormant and tween the parties themselves, cannot affect the rights nominal partof others, except so far as they may have notice of the terms of the partnership agreement; and to the debtors of a partnership persons may be jointly liable as partners, though no real partnership subsists between them: Thus, if any person were to hold himself out, or permit his name to be used, as one of a partnership firm, he would be liable to be sued jointly with the real members of that firm, although he might have no interest in the partnership effects or profits, for no one shall be permitted to lend his name to others to enable them to obtain a false credit, by leading persons dealing with them to imagine that they had the security of a greater number of persons than was really the case, without incurring that responsi. bility which he had led others to believe he had taken upon himself; but, on the other hand, though a real partner should have concealed his name, and not therefore been the means of obtaining any additional credit for the partnership, yet as he withdraws for his own use part of the funds to which the creditors trusted for the satisfaction of their demands, and thereby renders the ostensible partners less able to satisfy such demands, he incurs the same liabilities

as the more active and ostensible members of the firm.

A person who, at the time of dealing with the partnership, knew the want of interest in an ostensible partner, and not therefore having been misled by false appearances, could not charge such ostensible partner as though he were really interested in the partnership.

The duties and obligations arising out of a partnership are regulated by the terms of the agreement between the parties; but if such an agreement should not extend to all those duties and obligations, a contract arising from the relationship of partners will be implied, and enforced by the law. If any of the clauses in the copartnership articles are not acted upon by the parties, the articles will be construed as if they did not contain them.

Where the articles are silent on those points, it will be considered (and parol evidence will not be admitted to contradict it) that the partnership commenced at the date of the articles,k and that the parties are equally interested in the profits, and liable to bear the losses in the same proportions. The partners may, as between themselves, make such stipulations and arrangements as to the proportions in which their liabilities and losses shall be borne ; but to persons dealing with the partnership, each partner is liable to the whole amount of the joint liabilities, except as to persons who were acquainted with the provisions of the partnership articles giving an exemption from liability to any of the partners, or to

Grace v. Smith, 2 Bl. Rep. 998. • Alderson v. Pope, 1 Camp. 404, n. h Crawshay v. Collins, 15 Ves. 226.

Jackson v. Sedgwick, 1 Swanst. 470. * Williams v. Jones, 5 Barn. and Cress, 108.

Peacock v. Peacock, 16 Ves. 56. m Ex parte Williams, 11 Ves. 5. n Grace v. Smith, 2 Bl. Rep. 998.

Galway v. Matthew, 10 East, 266.

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