fession or trade, and agree to put into a common stock all the gains which they may make in the exercise of their trade or profession, in order to share them together.

We see many partnerships of this kind among masons.

These partnerships are lawful provided they do not tend to a bad object, for instance, that of arbitrarily enhancing the price of their labour. For example, in the case where a violent hurricane has unroofed all the houses of a small town; if all the slaters of the place entered into a partnership for the exercise of their trade during a certain time, in order to work in repairing the roofs, and they agreed among themselves not to get upon the houses unless paid their day's work, at a much higher than the ordinary price; such partnerships ought not to be tolerated, and the (juges de police) civil judges ought to punish (des amendes) by penalties those who have entered into them.

§ III. Of Partnership for Commerce (or Trade).

56. Savary, in his "Parfait Négociant," notices three different kinds of partnerships in trade. 1. Partnerships en nom collectif, or under a collective name. 2. Partnerships en commandite, or in commendam. 3. Anonymous and unknown partnerships.

57. Partnerships en nom collectif is that which two or more traders enter into to carry on in common a certain commerce in the name of all the partners.

Therefore, all the dealings that each of the partners enters

other slaters from working, save at the price they fixed upon, or unless they joined with them, such an agreement would be illegal and the partnership consequently void.

56 The contract of partnership is governed by the civil law, by laws peculiar to commerce, and by the agreements of the parties. Comm. Cod. of France, 18. The law recognises three kinds of commercial partnerships: the partnership (en nom collectif) under a collective name, the partnership (en commandite) in commendam, and the anonymous partnership. Ib. 19.

51 The partnership en nom collectif is that which two or a greater number of persons contract, and which has for its object to trade (sous une raison sociale) under the style of a firm. (Comm. Cod. of France, 20.) This kind of part

into for that commerce are signed, "such a person and company." He is considered to contract therein, as well in his own name as in the name of his co-partners, who are considered to contract and bind themselves jointly with him by his agency.

It is necessary, however, in this respect, to follow the laws prescribed for the contract of partnership, as we shall afterwards see.

58. This partnership is composed solely of the things which the partners put therein at the time of the contract, and those which each of them has acquired during the partnership, in the name of the partnership, by signing the dealings "such a Person and Company," whether he has made the acquisitions with the money of the partnership or with his own. But the things which one of the partners has acquired on his own private account, although acquired during the continuance and with the money of the partnership, will not fall into it; that partner is only debtor to the partnership for the sum which he draws out of it. This is what is decided by the Law 4. Cod. Com. utr.jur. Si patruus tuus ex communibus bonis res comparavit, non omnium bonorum socius constitutus res emptas communicare eum contra juris rationem postulas. In this respect, particular differ from universal partnerships, as we have before observed (n. 46.): accordingly, it results from these terms, non omnium bonorum socius constitutus, which show that the decision would have been different in the case of a universal partnership.

...

59. Nevertheless, even in particular partnerships, if the bargain which such partner has made on his own private

59 Upon this principle, in the case of Featherstonhaugh v. Fenwick, 17 Ves. 298., where one partner had secretly, for his own benefit, obtained a renewal of the lease of the premises where the joint trade was carried on, he was held to be a trustee of the lease for the benefit of the partnership.

So where two persons were partners in dealing in lapis calaminaris, and one of them who was a shopkeeper, instead of purchasing it from the miners by cash payment, obtained it by way of barter for shop goods; it was held by Sir John Leach, that the partnership was entitled to an account and equal division of the profits made by such barter. "The defendant," said his Honour, "here stood in a relation of trust or confidence towards the plaintiff, which made it his duty to purchase the lapis calaminaris at the lowest possible price; when in the

account was advantageous and belonged to the species of business which was the object of the partnership, and it would have been for the interest of the partnership to make it on account thereof, such partner can be compelled by his co-partners to bring into the stock of the partnership that which he has acquired thereby; for he ought not to prefer his private interest to that of the partnership, nor to take away from it an advantageous bargain, by making it on his own private account.

For example, if two persons enter into partnership to carry on a large (cabaret) tavern, and one of them finds a parcel of wine at an advantageous price for sale, and buys it on his own private account with the partnership money which he has in his hands, it is necessary to examine if, when he made that bargain, it was the interest of the partnership to make it on its own account. If there was only wine sufficient for a short time for the custom of the tavern, he ought not in this case to make the bargain on his own private account. But if the tavern was stocked with wine for many years, and he made the bargain on his own private account in order to re-sell the wine wholesale in the hope of gaining a profit thereby, the object of their partnership not being wholesale trade, his partner cannot claim a share of it.

60. Partnership en commandite is that which a trader enters into with a private person (a person not in trade) for a trade place of purchasing the lapis calaminaris he obtained it by barter for his own shop goods, he had a bias against a fair discharge of his duty to the plaintiff. The more goods he gave in barter for the article purchased, the greater was the profit which he derived from the dealing in store goods, and as this profit belonged to him individually, and as the saving by a low price of the article purchased, was to be equally divided between him and the plaintiff, he had plainly a bias against the due discharge of his trust or confidence towards the plaintiff." Burton v. Wookey, 6 Madd. 367. See also Glassington v. Thwaites, 1 S. & S.,

124. 133.

The partnership en commandite is contracted between one or more partners jointly and severally responsible, and one or more partners who are mere holders of capital, who are called commanditaires or partners en commandite. It is carried on under a partnership name, which must necessarily be that of one or more of the partners who are jointly and severally responsible. Comm. Cod. of France, 23.

It appears that, although at one time partnerships en commandite were carried

to be carried on in the name of the trader only, and to which the other contracting party contributes only a certain sum of money which he brings into the capital of the partnership under an agreement that he is to have a certain share of the profits if there are any, and to bear, in the contrary event, the same share of the losses, in which, nevertheless, he will only be bound to the extent of the capital he has brought into the partnership.

61. The anonymous or unknown partnership, which is also called compte en participation, is that by which two or more persons agree to take a share in a certain business which shall be carried on by one or other of them in his own name alone.

For example, I am about to purchase a certain lot of goods in order to resell, but not having the necessary funds for that transaction, I propose to you by letter whether you are willing to take a share with me. You answer me, you will; and that you will let me have the necessary funds for your share. Consequently I do the business in my own name alone. It is an anonymous partnership which is entered into between us, in which I am the only known partner, and you the unknown partner.

There is also a kind of anonymous partnership called (mo

mulgation of the Code, modified by the practice and necessities of commerce, and were carried on in the name of a firm composed of two or more managers, and that the capital was often divided into shares.

The celebrated Royal Bank, the scheme of the notorious Law, was, as Troplong informs us, a partnership en commandite with shares, and was carried on under the style or firm of Law and Company. See Troplong," Droit Civil Expliqué Contrat de Société, vol. i. p. 372.

61 The anonymous partnership does not exist under a partnership name, it is not designated by the name of any one of its partners. Comm. Cod. of France, 29. Anonymous partnerships are similar to our ordinary joint-stock companies and other unincorporated associations. Stor. Partn. 110. See Smith's "Wealth of Nations."

Independently of the above-mentioned three kinds of partnerships, the law recognises commercial associations in participation. Ib. 47.

These associations are relative to one or several commercial operations. They are established for the objects in the forms, with the proportions of interest, and under the conditions agreed upon between the participants. Ib. 48.

It will be observed that Pothier treats the anonymous partnership and the compte en participation as in effect the same, although it will be observed that the Code draws a clear distinction between them.

mentanée) momentaneous, when (des revendeurs) brokers, who attend sales by auction of moveables, in order not to bid one against the other, reciprocally agree to share all the purchases each of them shall make at the sale, and after it is finished, to put into a mass all the goods which they have each bought separately, in order to share the whole amongst themselves. This partnership is permitted, provided it does not tend to get the goods at a price below the just value, and there are at the sale a great concourse of other (revendeurs) brokers besides the partners.

But if those who had entered into this partnership were the only persons at this sale who were in a condition to enhance the price of the goods, it is evident that such partnership which had a tendency to get the goods for as low a price as they wish to put upon them, would be unjust.

63. The anonymous partnership is similar to the partnership en commandite in this respect, that in both there is only one of the partners who contracts and binds himself with respect to the creditors of the partnership; the unknown partner in anonymous partnership, as well as the partner en commandite, are only bound to them with respect (vis à vis) to their principal partner.

These partners differ in this respect, that in the anonymous partnership, the unknown partner is bound indefinitely with regard to his share in the partnership, to acquit his partner of the debts which he has contracted for the partnership; on the other hand, the partner en commandite is only bound to the extent of the sum which he has put into the partnership.

See post as to the liabilities of partners in anonymous and en commandite partnership.