The third error, a correction of which has been required, is an extra charge of commissions and of interest. In the articles of copartnership, Miller, Hart & Co. stipulate to do the business in London on the same terms on which they had done the business for Alexander Brydie & Co. Consequently they were bound to be content with the same commissions, and to keep an interest account on the same principles.

The bill charges a departure from this stipulation. This allegation also is in express and unequivocal terms denied in the answer. Alexander Brydie was the acting partner, in this country, of Alexander Brydie & Co., and of M'Clure, Brydie & Co. Consequently he understood perfectly the commissions charged by Miller, Hart & Co. to each of these firms. He never complained of their commissions, but impliedly approved them; first, by admitting the accounts, and afterwards, by making a final settlement, which acknowledged their correctness.

The plaintiff does not pretend to show that the commissions charged M'Clure, Brydie & Co. vary from those charged Alexander Brydie & Co., but shows that different commissions have been charged M'Clure, Brydie & Co. for different cargoes, sold at different places, and under different circumstances, with all of which Alexander Brydie was perfectly satisfied. The interest account is not so clear, and I do not so well understand it. If the plaintiff can show a positive error in it, I shall permit him to do so. But the whole weight of proof

lies with him.

A fourth error charged against Miller, Hart & Co. is, premiums paid for insurance against fire. But this item is in express terms allowed by Brydie, and was afterwards admitted by him in the settlement.

A fifth error is, an allowance of 10s. per cwt., on four hundred hogsheads of tobacco purchased for Keymer, M'Taggert & Co. at £3 per cwt. Keymer, M'Taggert & Co. alleged that their orders had been disobeyed, and refused to receive this tobacco. Miller, Hart & Co. made a compromise and agreed to receive 50s. instead of 60s. per cwt. Alexander Brydie says he does not think they were bound to make this concession, but, believing they acted for the best, he acquiesces in it, and will cheerfully bear his proportion of the loss. Alexander Brydie might certainly have refused to accede to this compromise, in which case Miller, Hart & Co. would have stood in the place of Keymer, M'Taggert & Co., and must have paid whatever sum that company was liable for. But, although Alexander Brydie might have withheld his assent, he was not bound to withhold it. He was at liberty to accept or reject the compromise. With a full knowledge of the subject he chose to accept it. Who shall reverse his decision and say that, against his will, he shall go on with the contest, and risk almost the whole cargo on the liability of Keymer, M'Taggert & Co. to pay 60s. per hundred for the tobacco?

It is alleged that this compromise was not actually made, but this allegation is not supported by even the semblance of probability, and, if the plaintiffs rely on it, they ought to have taken the testimony, which was in their power, to establish the fact. A sixth error is a credit taken in the books for £1,800, a variance between the London and Virginia books. This allegation is expressly denied in the answer, and is not proved. I understand the answer as accounting for the alleged error of £2,000 in favor of M'Clure.

§ 211. Acquiescence in settlement renders it binding on party not signing. In objection to the account which was settled, it is alleged that M'Clure signed it for himself only, not for his partners. That Miller and Hart were

not bound, and, therefore, Brydie ought not to be bound. Whenever Miller and Hart signified their acquiescence in this account, it became obligatory on them, even supposing that their silence did not render it obligatory. But whatever force might arise from this circumstance, if Miller and Hart had never signified their acquiescence in the settlement, and Brydie had alleged this fact and brought a bill on that account to have a resettlement, it can have no force when Miller and Hart appear to have approved the settlement, and are not put upon the proof of that fact by the allegation that they had not assented to it.

212. Upon bill for resettlement of partnership accounts, defendant need not set forth the original settled account.

It has been also contended that Miller, Hart & Co. ought to have set forth the settled account, if they relied upon it as a bar to the resettlement which is demanded in the bill.

If this bill had been brought for a settlement of accounts, without admitting a former settlement, this observation would be correct. The defendant ought not to be, and most certainly would not be, admitted to plead a former settlement in bar, without showing that former settlement. But this bill admits a former settlement, which must be in possession of the plaintiffs. It is therefore not essential that the defendants should exhibit it, nor have they ever been required to exhibit it. The original has been produced and read in court. That it cannot longer be produced is not the fault of either party; each party is, I presume, possessed of copies. If, on this part of the case, any difficulty should arise, the court will interfere so far as may be necessary.

The errors alleged in the former settlement have been considered. If there was nothing further in the case, I could not hesitate to dismiss the bill. But the parties agree that some accounts between them still remain open. Of these, an account is, of course, to be taken. If, during the pendency of this account, the plaintiff chooses to inspect the policies in London, he is at liberty to do so, and if there is any one case in which Miller, Hart & Co. have themselves stood insurers, he is at liberty to bring the circumstances of that case before the court. He may also take depositions to show any imposition on Alexander Brydie, and he may show to the commissioner any positive error in the interest account, but he is not at liberty to open the settlement on any point agreed to by Alexander Brydie, unless he can prove fraud or misrepresentation in obtaining that agreement.

§ 213. A partner is not entitled to compensation for his services either before or after dissolution, in the absence of a special agreement entitling him to it. Lyman v. Lyman,* 2 Paine, 11.

$214. Right of partner to manage firm business. If two are jointly concerned in a particular adventure, the one authorized to dispose of the property may appropriate the whole proceeds to his own use, and make himself the debtor to the other for a moiety; or he may hold the money for the joint account, and subject his associate to all the risks which may attend it. Hourquebie v. Girard, 2 Wash., 212.

§ 215. Plaintiff and defendant engaged in a joint adventure, the management of the affair being placed in the hands of the defendant, who was in command of the vessel in which the shipment was made. Held, that being a joint adventure, the plaintiff had no right to order, but only to advise, as to the disposition of the property, and that the defendant having exchanged the property for bills on the French government, instead of for cash or produce as directed by the letter of the plaintiff, was not responsible for the loss occasioned thereby, having acted in good faith. Lyles v. Styles, 2 Wash., 224.

216. The law gives to each partner a lien upon the joint effects of the partnership for any excess over his partner which he has contributed to their joint business, or to preserve their joint property. Wilson v. Davis,* 1 Mont. T'y, 183.

§ 217. Of retiring partner.- Partnership property is responsible for what is due to a partner retiring, and if not enough to satisfy the claim, each member is liable for the residue in a ratio with his interest. Perkins v. Currier, 3 Woodb. & M., 69.

§ 218. Where one member of a firm withdraws, the dealing of creditors with the remaining partner, selling him goods, giving him fresh credit, aud permitting such goods to be mingled with the old stock, does not release the retiring member from liability for the firm's indebtedness, or sanction the appropriation by him of the moneys he took out of the firm, so as to deprive them of the right to follow those moneys, if it be found that the remaining assets were insufficient to pay their debts in full. In re Sauthoff,* 5 Cent. L. J., 364; 16 N. B. R., 181. $219. Partners are liable for the torts of each other committed in the course of partnership business. Stockwell v. United States, 3 Cliff., 284.

$220. When one partner a trustee for the other - Patents. A copartnership was formed between A., a man of inventive genius, and B., a man of business and of capital, for the purpose of experimenting with and bringing to perfection a certain invention. By the sixth article of the agreement it was provided that any improvement, etc., should inure to the joint benefit. B., by the assignment of A., was invested with the legal title of the patent, and chief conduct of the affairs of the partnership. Subsequent B. endeavored to get rid of A., under circumstances which indicated that he intended to deprive him of the benefits resulting from success in their joint experiments, and in pursuance of such scheme called in D., who, without having invented anything, and in a remarkably short space of time, procured letters patent to issue to himself and B., which embraced the results of A.'s discoveries and experiments, whether they embraced anything else or not. Held, that B. was chargeable, under the sixth article of the agreement between A. and B., as trustee for A., with one-half of all that had been realized or might be realized from the use of the patent to B. and A., and the patent to B. and D. As to D., while he was not a trustee under the said article, he had so far knowingly connected himself with, and aided in the fraud on A., that he could not resist A.'s right to an undivided half of both the patents to B. and D., and of the profits made or to be made out of them. Ambler v. Whipple, 20 Wall., 546.

§ 221. Forfeiture of interest in firm.- A partner, by failing to contribute his share of the partnership fund, does not, in ordinary cases, forfeit the interest which he already has in the firm. Especially is this so where no extraordinary emergency exists requiring such payment. Piatt v. Oliver,* 3 McL., 27.

§ 222. Interest on partnership accounts.- A partner is not liable to pay interest on partnership accounts, before settlement and balance struck. Dexter v. Arnold, 3 Mason, 284. § 223. Liability for firm debts. The stockholders of an unincorporated banking company are individually liable in equity to the holders of the notes of the company, issued while they were stockholders, notwithstanding an article of their association declares that the joint stock or property of the company should alone be responsible for the debts and engagements of the company, and that no person who might deal with the company, or to whom they should become indebted, should, on any pretense whatever, have recourse against the separate property of any present or future member of the company, or against their persons, further than might be necessary to secure the faithful application of the funds thereof to the purposes to which, by those articles, they were liable. Each stockholder, notwithstanding such article, is liable to the full extent of all the notes outstanding in the hands of creditors of the company, which were issued while he was a stockholder. Riggs v. Swann,* 3 Cr. C. C., 183.

224. It is a principle of the law of partnership, that a contract made by copartners is several as well as joint, and the assumpsit is made by all and by each. It is obligatory on all and on each of the partners. Barry v. Foyles, 1 Pet., 311.

$ 225. The responsibility of one partner for the contracts of another is not solely on the ground of the credit being given to all. Felichy v. Hamilton,* 1 Wash., 492.

§ 226. In 1784 two brothers, who were engaged in trading and boating on the Connecticut river, orally agreed upon a partnership, it being understood that all their property should be in common, and that each should be at liberty to do any kind of business he might see fit on joint account. This connection continued until 1820, and in the meantime their business grew to considerable proportions, including a variety of transactions, such as building and dealing in vessels, the purchase of land, and of stock in bridge and turnpike companies. Deeds and other evidences of title were taken in the names of both or either indiscriminately. Held. that the partnership was a general and unlimited one, that all their property of every description was partnership property, including land belonging to one of them before the partnership and upon which buildings were erected with the joint funds, and legacies received by one of them and the wife of the other and applied to the use of the partnership; and that losses sustained by the transactions of either, however ill advised, must be borne by both, so long as there was no fraud shown. Lyman v. Lyman,* 2 Paine, 11.

$227. Upon a bill for an accounting, held, that the plaintiff was entitled to have a sale of the real estate made to wind up the partnership, although defendant desired to have each retain what real estate he had, the difference in values to be so held by a corresponding charge and credit. Ibid.

§ 228. Each having been in possession of different portions of the real estate, by tacit consent, for eight years after dissolution, held, that, owing to the extraordinary character of the case, each should be allowed for improvements made upon such real estate during that time, contrary to the usual rule applicable to partnerships. Ibid.

$229. An agreement purporting to create a partnership, to continue a certain number of years from date, provided that one of the parties should obtain the lease of a certain railroad in his own name, but for the joint account of all; that he should manage it at a monthly salary for their mutual benefit; that the others should furnish the money necessary for the purpose and be reimbursed with interest out of the annual net profits; that after such repayment of the capital and interest, the net profits should be equally divided, and that all losses should be borne equally. Held, that the postponement of a division of profits until the capital advanced should be refunded to the partners advancing it did not defer or affect the liability of the partners for debts contracted in the prosecution of the business, but that the managing partner, as well as the others, became liable for such debts from the start. Beauregard v. Case,* 1 Otto, 134.

§ 230. Such a partnership is, under the Louisiana law, termed an "ordinary" as distinguished from a "commercial" partnership. Under that law in such a partnership each partner is only bound individually for his share of the partnership debts; but, to that extent, a debt contracted by one partner, even without authority from the others, binds them, if it is proved that the partnership was benefited by the transaction. Ibid.

§ 231. In an action against a partnership in Louisiana praying a judgment against all the defendants in solido for the whole amount of the debt, if the evidence shows an ordinary, as distinguished from a commercial, partnership, the verdict and judgment may be against each defendant for his proportional share only, and they will not be vitiated by the variance from the prayer of the petition. Ibid.

§ 232. Where a member of a firm is discharged in bankruptcy, upon his individual petition, such discharge does not release him from partnership debts, without any proceedings to declare the partnership bankrupt. Hudgins v. Lane,* 11 N. B. R., 462.

§ 233. Partnership note-Consideration as to new member.- Where A. agreed to sell B. and C. certain property, and D. afterward entered into copartnership with B. and C., and a conveyance was made of said property to B., C. & D., and their note given for a certain amount, which said parties alleged was given partly in consideration of a further agreement entered into between A. and said B., C. & D., it was held upon their claiming that there was no consideration for D.'s becoming a joint promisor in said note, except said subsequent agreement, that he was a partner of B. and C. and a joint owner with them of the property for which the debt had been contracted, and that a consideration moving to his copromisors was enough to support his promise independent of said subsequent agreement. Philpot v. Gruninger, 14 Wall., 570.

§ 234. As to mines.- If tenants in common of a mine unite in working it, being practically forced by circumstances into a partnership in working the mine, but not becoming partners as to the ownership of it, one may buy up the interest of a second without becoming answerable therefor to the others. The rule that forbids a partner from deriving any private advantage from his position as partner has no application to such a case. First Nat. Bank v. Bissell,* 2 McC., 73.

§ 235. Distribution of stock.-Partners cannot distribute among themselves any part of the stock in trade to the prejudice of creditors. But when a distribution is made with the assent of the creditors the act is not fraudulent. Wilkinson v. Yale, 6 McL., 16.

V. DISSOLUTION AND CHANGE IN FIRM. SURVIVING PARTNERS.

SUMMARY-Notice, S$ 237, 238.— Surviving partner; abatement and revival, §§ 239, 240.— Acceptance of new firm as debtor, §§ 241, 242.— Liability of estate of deceased partner, § 243. Profits from other partnerships, § 244. — Dissolution of law partnership; death of partner; suit for an accounting, §§ 245–247.

§ 236. Notice of dissolution of a partnership published in the public papers is conclusive upon all persons who have had no previous dealings with the firm. Shurlds v. Tilson, §§ 248,

249.

$237. Notice of dissolution of a partnership by publication in a newspaper is not indispen

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sable to protect a retiring partner against one who has not had previous dealings with the firm. Other public notice may be sufficient. Lovejoy v. Spafford, §§ 250-252.

§ 238. In an action brought on an acceptance given in the name of a dissolved firm by the continuing partner, seeking to hold the retired partner, it appeared that the defendant firm was located at Davenport, Iowa, and the acceptance was given at Read's Landing, Wisconsin, for the price of lumber bought of plaintiffs there; that the firm had been dissolved several months previously, and the business was thereafter carried on in the name of the continuing partner alone; that actual notice had been given to those who had dealt with the firm previously; there was no evidence that the firm had ever transacted any business before at Read's Landing, or at Eau Claire, which was near by. Held, that it was error to exclude evidence offered by defendant to show that it was generally known along the Mississippi river that the dissolution had taken place, to show to whom, to what extent and in what manner notice had been given; that all the lumber dealers in Davenport were notified and knew of the dissolution; and that, just before the draft in question was given, notice was given to nearly all the lumber dealers in Eau Claire and vicinity, although such evidence was not offered to prove actual notice to plaintiffs. Ibid.

§ 239. In case of the death of a member of a firm, leaving his copartners surviving him, during the pendency of a suit against the partnership, the suit does not abate, but, upon suggestion of the death of one, it will proceed against the others; and there is nothing in the nature of a bill in equity to restrain the infringement of letters patent, and praying for an account of profits arising from such infringement, to withdraw the case from the operation of the general rule. Troy Iron & Nail Factory v. Winslow, §§ 253-255.

§ 240. Such a suit cannot be revived against the executor of the deceased copartner, at least unless it is shown that the surviving partners are insolvent, or that the partnership assets are not sufficient to satisfy the demand, as, without such showing, creditors of a partnership have no right to proceed against the estate of a deceased copartner. Ibid.

§ 241. In 1871 the banking firm of J. C. & Co. was dissolved and a new firm formed under the same name, two members of the old firm, including defendant's testator, retiring and being succeeded by two new members. The liabilities of the old firm were assumed by the new, and it was agreed that the retiring partners should be relieved from liability. In 1873 the new firm failed and went into bankruptcy, and among its debts, published in the proceedings, was an account due plaintiff's intestate as depositor, he having made the deposits in 1869, and having disappeared in 1870. This debt was proved in the bankruptcy proceedings in 1873 and dividends accepted on it afterwards. The defendant's testator died in 1877, and no claim was made on him during his life-time on account of the deposits. In 1878 a demand was made on defendant, who denied any liability, and no steps were taken to enforce the demand. In 1879 the bankrupt estate was wound up; plaintiff participated in a distribution of stocks made to the creditors, and sold the stocks so received at private sale without notice to defendant. Upon these facts, held, that as the representative of plaintiff s intestate was notified by the bankruptcy proceedings of the dissolution of the old firm and of the assumption of the debt by the new firm, proof of the debt in the bankruptcy proceedings, coupled with the omission to make any claim upon the retired partner during his life, and with the lapse of time occurring before any demand was made on his estate, justified the inference that the new firm was adopted as the debtor in lieu of the old, and therefore plaintiff could not maintain a claim for an unsatisfied balance of the debt against the defendant. Regester v. Dodge, SS 256-260.

§ 242. Held, also, that plaintiff was barred from obtaining any relief in equity by the consideration that his failure to make a claim upon the defendant or his testator until the bankrupt estate was nearly wound up resulted in the loss to the defendant of the opportunity to make a claim upon the bankrupt estate, and by the further consideration that defendant may have chosen to keep the stock received from the bankrupt estate instead of selling it, and should have been allowed the option to do so. Ibid.

§ 243. A partnership agreement fixed no definite period for the continuance of the partnership, but provided that, in the event of the death of either party, the copartnership “shall not on that account dissolve, but the interest of such deceased party may be continued and represented by the legal representatives of said deceased party, or otherwise disposed of by them." The will of one of the partners, who died during the continuance of the partnership, provided that the testator's share or interest in the partnership "shall not cease, nor said partnership be determined, by reason of my death," but that such share and interest "shall continue and be kept up and represented by the executor of this my will, in my stead, until such time as, in his judgment, it shall be most advantageous for my estate to sell out and settle up and close up" the said share and interest, "and to that end I do hereby fully authorize and empower and direct the executor of this my will to hold, manage and represent" such share or interest, "for the benefit and use of those who shall be entitled to my estate,