there, whether for wholesale or retail trade, whether large or small in number, must be registered. In this country, registration is demanded only in the case of Joint Stock Companies. So in the case of partnership there is no mode of ascertaining who are the partners. And yet we know, that in many cases the present partners of old established houses have not the remotest connection with the name of the founder of the same. The registration of all partnerships is a desideratum in our mercantile jurisprudence. The publication in the Gazette of the original formation, and subsequent changes in the personnel of the firm, is of great value. But a public office, where creditors or others interested might at any time ascertain who are connected with any individual firm, would be of great practical value. Partnership property consists of all property originally put into the partnership, and all property subsequently acquired by the firm, by means of any transaction, and also of real estates purchased with partnership funds in whosoever name they may stand. A, B, C, and D joined in a partnership to work a fullingmill. Money was subscribed by all the parties, with part of which freehold land was bought, which was conveyed to A and B in fee; with the other part, a mill was built on the land, and machinery for the mill was purchased. By a partnership deed, executed by A, B, C, and D, the trusts of the land, mill, &c., were declared to be that A and B should stand seized and possessed of all the estates, upon trust for the benefit of themselves and their partners as part of their partnership joint stockin-trade. A and B, under the power of the deed, borrowed money for the purposes of the parnership, for which they gave bonds and notes in their own names, but did not mortgage any part of the property. There was no question as to the legality of the act, or that the land and the mill constituted part of the partnership property, and that that formed the basis or subjectmatter of the trade out of which the profits were to be divided among the partners. The only question was whether the copartners had not parted altogether with the possession of such property in favour of A and B, and had thus forfeited the right to vote; and this was held that they had not lost, because no trusts had been made inconsistent with an equitable seisin of a freehold in the co-partners. Whilst it is of the essence of the partnership that all property is held in common, it is quite open to a partner to agree that any specific property shall continue to remain the property of any one partner, and that the use of it only shall be in common. Although partnership property may be used and risked for the common profits of the partners, it may still remain the private property of some of them. The profits arising from it may be divided, and yet not the ownership of property. It rests on the terms of the transaction, and on the intention of the parties to discover whether there existed between the partners a joint interest in the property. Each partner has a specific lien on the partnership stock for everything he has advanced or brought in as a partnership transaction, and also for the payment of the debts of the firm. Partners are all interested in the profits and loss in certain proportions defined by the agreement. A partnership in which all the burden or losses should fall upon one, and all the profits on another, would be invalid for want of reciprocity. The lion the ass, and the fox, united together for a hunting expedition. Having gathered sufficient booty, the lion asked the ass to divide it, and she, with her proverbial simplicity, divided the spoil into three equal lots. But the lion became indignant at this, and forthwith he punished the poor ass by killing her. Then he ordered the fox to make a new division, and he, well taught by the chastisement inflicted on his companion, gave most of the prey to the lion, and reserved little or nothing for himself. The lion highly appreciated this just distribution, and praised the fox for his ability. Now this is a fiction, but it represents what the civil lawyers called two species of leonine societies. The first takes place when one of the partners assumes all the losses, without participating in any of the benefits. The other, when all the losses fall on one, and the profits are divided among the others. Where is the equity of such a transaction? The exclusive right of one partner to all the profits would destroy the hope of any advantage on the part of any other. And where is the inducement to labour for the common good? No, the law recognises no such inequality, and the principle is that where there is no contract between the partners, or any dealing from which a contract may be inferred, the law assumes that the partners carried on business on terms of an equal partnership, which implies not only an equal partnership de facto, in profit and loss, but a right in each partner to claim and insist in such participation. In foreign countries, in case of partnership of three parties, one bringing in, say £5,000, another £2,000, and another his industry only, the industrial partner would be entitled to share in the profits in the same proportion only as the partner who has brought in the least amount of capital, or £2,000. But in England the implied equal distribution of profits applies in all cases, even where one partner contributed all the capital and the other his industry only. It is needless VOL. XXXVII. 43 almost to observe, that when we speak of the distribution of profit, we always mean the proportion of the residue on balance of the account, nothing being accounted as the partner's share but his proportion of the surplus, after the partnership accounts are all settled and all just claims satisfied. Each partner is the accredited agent of the rest, and has authority as such to bind them either by contract or by negotiable instruments, though not by contract under seal. Every partner possesses an equal and general authority on behalf of the firm to transfer, pledge, exchange, or apply, or otherwise dispose of the partnership property and effects, for any, and for all purposes, within the scope and object of the partnership, and in the course of its trade and business. This authority may be exercised also by drawing, negotiating, or accepting a bill of exchange, or a promissory note, effecting a contract of insurance or charterparty, by buying, selling or pledging goods, by receiving or borrowing money, acting in bankruptcy, proving debts, voting for assignees and signing certificates, subject indeed to one general condition, which is especially important as respects bills of exchange, that the authority of partners can only be exercised by signing them in the true style of the firm, and that they could not bind the partnership in any other name. And it should be remembered, that although the general authority of partners to bind each other by bill is always implied in commercial partnerships, the authority may be always rebutted by express previous notice to the party taking such security, from one of them, that the other would not be liable for it. I said that a partner has authority to borrow money on behalf of the firm. Could he bind the firm by opening a banking account in his own separate name? No. The following is a recent case in point. William and James Kearsley, being partners as coachmakers, under the name of "George Kearsley & Co.," James Kearsley opened an account at the Alliance Bank, saying that the firm desired to have overdrafts in account which he would secure. The pass book was headed James Kearsley, Esq., in account with the Alliance Bank, and the cheques were all drawn by James Kearsley in his own name. The account was drawn upon by James Kearsley to some extent for the purposes of the firm, but this could not be well proved. James Kearsley having failed, the Alliance Bank sued the firm of George Kearsley & Co. to recover the sum of £427. 1s. 2d., as the balance due by James Kearsley. But had James Kearsley any implied authority from the other to open an account at a bank on behalf of the firm in his own separate name? There is a great difference between the contracting of a loan and the opening of a banking account, for the latter involves drawing cheques, and it may be mutual loans. Primâ facie, moreover, unless the name of the firm is used in making the contract, the contract is binding only on the individual partner who makes it. When the name of the firm is used, and the transaction is one which occurs in the ordinary course of business, an authority to contract is presumed to be conferred by one partner on the other; and as borrowing money for the purpose of business is within the ordinary transaction of life, in the case of such borrowing, an authority will be implied. But it is not one of the ordinary transactions of business to open a banking account for a firm in any other name than that of the firm, and so the firm of George Kearsley and Co., could not be held answerable for what one of the partners, James Kearsley, did in his own name. The liability incurred by partners extends to the whole of their joint and separate property. No restriction of liability is admitted in any case of private partnership. Every partner is liable, not only to the extent of his interest in the partnership funds, but also to the whole extent of his personal estate. Partners may limit their individual liability towards one another, and will be bound among themselves by such stipulation, but it will not affect third parties, unless, indeed, specific notice of limitation can be proved to have been given with regard to any individual. An incoming partner, that is one who enters the partnership after it has been constituted, would not be bound for the debts contracted by the firm previous to his joining it. But slight evidence may be sufficient to show, that the partner knew the stock in which he was a partner, and that, therefore, by joining it, he intended to enter into all the liabilities of a partner. In France, the law permits the formation of partnerships en commandite, that is of partnerships where the managers have an unlimited liability, and the providers of funds a limited liability, the latter not meddling in anywise, openly, in the management of the concern. But in England, limited liability is allowed only in the case of companies. The management of the affairs of a partnership devolves upon all the partners, and no one has a right to take any exclusive control of the business. In France it is competent for partners to nominate a gérant or manager, and in that case, all the rights of the different partners would rest in his hand. In England, no such power is admitted to exist, and in case of disputes among the partners as to any enterprise, the majority would be held to rule the minority, partners being united by a general engagement, in a sort of brotherhood, to act the one THE INFLUENCE OF A NOTE CIRCULATION IN THE CONDUCT Being a Paper read before the Manchester Statistical Society by II. Early History of Banking in England. III. Banking Deposits and Circulation in Great Britain compared. IV. Uses of a Note Circulation. V. Banking Deposits and Note Circulation in Scotland compared. X. Legislation in this Country respecting Circulation. XI. The Paper Circulation, the Metallic Circulation, and the General Busi- XII. The question, whether the issue of Notes is a prerogative of the State. 1844. XIV. The Rate of Discount from 1825 to 1844. XV. The Rate of Discount from 1845 to 1876. XVI. The Rate of Discount from 1825 to 1844, and from 1845 to 1876, compared XVII. The Influence of the Scotch demands for Circulation in the months of May and November. XVIII. Concluding Remarks. |