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raise a dedication thereof to the community (if any) using it below.59

(2) He may also in exceptional cases let the water go down Second River and then retake it from others below his works if the intention so to recapture it was part of his original project, and has not been lost by unreasonable delay; but usually such intention does not exist, or is an afterthought or has been lost by delay, so that usually he will have no such right.

(3) While the paramount consideration is that the producer owns and controls the source of supply, yet among all the rest of the world except him and his privies, the mingled flow follows the usual law of watercourses as a single flow, and it is immaterial between them how that flow came to be. Subject to the producer's paramount title, riparian owners on Second River have riparian rights in the mingled flow, and successive appropriators have relative priorities therein, upon the same rules of law that apply for riparian owners or successive appropriators of natural water supplies.

SAN FRANCISCO, CAL.

Samuel C. Wiel.

59 This is doubtful, and the chance of its application would be still less if he should notify the parties below that no dedication is intended.

THE UNIFORM PARTNERSHIP ACT-A REPLY TO MR. CRANE'S CRITICISM1

MR.

[R. JUDSON A. CRANE has written in the June number of the HARVARD LAW REVIEW an article entitled "The Uniform Partnership Act — A Criticism." This Act was approved by the Conference of Commissioners on Uniform State Laws on October 14, 1914. It has already been adopted in Pennsylvania and Wisconsin. Mr. Crane makes the following criticisms of the Act:

First. That it is not drawn on the theory that a partnership is a legal person.

Second. That though the intention of the draftsmen was apparently to proceed on the aggregate theory, the Act does not explicitly adopt either the entity or the aggregate theory of the nature of a partnership.

Third. That there is no section on Fraudulent Conveyances. Fourth. That certain sections of the Act, which he indicates, are defective.

The writer will here discuss these criticisms in the order given; and first:

THE NATURE OF A PARTNERSHIP

Sec. 6 (1) of the Act defines a partnership as "An association of two or more persons to carry on as co-owners a business for profit." This definition is not in accord with the idea of those who believe that a partnership should be regarded as an entity endowed with a legal personality distinct from the legal personalities of the partners. Mr. Crane admits that the theory which makes the partnership a legal person is not the theory of our common law.3 Though he strongly condemns the commissioners for not drafting the Act on the theory that a partnership is a legal person, he does not state in his article his reasons for believing in the theory, nor

1 Limitation of space has made it impossible to treat in this article of the advantages resulting from the general adoption of the Act. I have set forth these "advantages" as they appear to me in an article in the Yale Law Journal for last June, entitled "The Uniform Partnership Act," 24 YALE L. J. 617. 328 HARV. L. REV. 766, n. 35.

228 HARV. L. REV. 762.

tell us why they should have discarded the aggregate theory which is the one on which our courts have generally proceeded. He does, however, make three statements, which he supports either by the citation of authorities or legal rules, from which he concludes that courts have been consciously or unconsciously tending toward the legal-person theory, while legislators, dealing with a partnership incidentally, treat it as a legal person.

The fundamental importance of a correct theory of the nature of a partnership to all partnership law warrants, before specifically discussing these statements and conclusion, as full a discussion of the subject as the necessary limits of space allotted to this article will permit.

In the first place the reader anxious to determine for himself whether the Uniform Law Commissioners made a mistake in not incorporating in the Act the theory that a partnership is a legal person, should see clearly the question at issue. He is also entitled to have called to his attention the reasons which induced the commissioners, after first directing their Committee on Commercial Law to draft the Act on the theory that a partnership is a legal person, to return to the dominant theory of our common law; a final determination made on the unanimous advice of the group of writers, teachers, and other experts on partnership law called by the Committee on Commercial Law to discuss the very question raised by Mr. Crane - the legal theory of the nature of a partnership to be adopted by the draftsmen of the Act.

It will perhaps tend to clarify the question at issue if reference is made to certain things on which there can be general agreement.

A business is a series of acts directed in a certain manner toward a definite end. We say that A. and B. are in partnership as dry goods commission merchants, by which we mean that they have associated themselves together to obtain a profit by selling the goods of a certain class of manufacturers on commission. As with any other partnership, A. and B. in association have a group of activities distinct from their other activities. A. may also be engaged in other businesses by himself or with others; so also may B.; while in any event each carries on activities which form no part of their mutual business as dry goods commission merchants. Or one man may, without associating himself with others, carry on by himself one or several distinct businesses. Engaged, for in

stance, in running a hotel and livery stable, he may run them as one business or two. It is largely a question of how he wants to keep his books, and how he organizes his force of employees.

The way in which men's activities are grouped when they act by themselves or with others is a question of fact, not law. When two or more persons join in carrying on a business, as a matter of practical necessity they are obliged to keep their activities in the business distinct from those activities which are not intended to further their mutual enterprise. Their mutual activities they may keep as one or divide into two or more groups. Thus A. and B. may form a partnership to run a hotel and a partnership to conduct, as a separate business, a steamboat line; or two partners in the retail grocery business may use their delivery wagon on Sunday to take their families on a pleasure excursion, or may, apart from their business, mutually engage in a real estate speculation.

The reasons which induce a man to group his activities are infinite. Often the grouping is imperative. A man engaged in the hotel and garage business may, as his real or supposed convenience dictates, run them as one business or two. On the other hand, the trustee of an estate must, if he obeys the law, group apart from all his other activities his activities as trustee.

Once a man so far separates his activities in a given direction as to think and speak of them as being performed in a distinct business, he can regard himself as having relations with that business, and he can think of the "business" as possessing rights and having obligations. Thus he can and does speak of property as belonging to his business, or charge himself on the books of the business when he draws money for his personal use. Or the trustee, dealing with his business as trustee as distinct from all his other activities, may speak of the "property of the trust estate" or of the "estate" as owing him money for advances. In the same way, when two or more persons associate themselves in business as partners, they may properly speak of the partnership property, and of themselves as indebted to or as being owed by the partnership. The language is appropriate, because the separate grouping of the activities mutually carried on toward a definite end is a fact, just as the separate grouping of the activities of a man as a trustee of an estate is a fact.

The illustrations just given show that any group of activities,

whether carried on by one person or many, by the very fact that the activities are grouped becomes an entity. For the best, indeed perhaps the only practical definition of an entity, is — phenomena grouped in the mind as possessing a common attribute not had by other phenomena. Thus a business regarded by the owner or owners as distinct from all their other activities is an entity, because all the acts done in it - that is, all the phenomena of the group have this in common, that they are performed or directed by the owner or owners of the business to obtain, in a given manner, a profit.

Just as it is true that man can and does as a matter of fact create entities by dividing his activities into groups, so it is also true that one man- barring certain rare abnormal instances of dual personality has but one personality. Indeed this concept of the oneness of personality is bound up in our concept of a man. The trustee and the same man conducting his private business has one and the same personality. Because he carries on two businesses he does not thereby become two persons. Men who associate themselves to carry on a business in partnership, and who so carry it on, do not create a personality distinct from their own separate personalities.

That man groups his activities - must indeed group them and that normally one man has one personality, and that a group personality distinct from the personalities of the individuals forming the group is a figment of the imagination, are facts, not legal theories. On the other hand, it is necessary that the law should have a theory of legal personality. The law may take the position that one person in fact can have but one legal personality, or that he may have many: a separate legal personality for every separate group of his activities, for each business he conducts as a distinct business, for domestic concerns, and for each separate trust. The legal theory that a man is one legal person, even though he may engage in several distinct lines of activity, has this in its

Dr. Otto Gierke, the eminent German jurist, affirms that group consciousness, or group personality distinct from the separate consciousness or personalities of the individual members of the group, does in fact exist. See Die Genossenschaftstheorie und die Deutsche Rechtsprechung, Kapitel II, 141. In this country, as far as the writer is aware, all advocates of the legal-person theory of partnership admit that a group personality is no more a reality than a composite picture is a picture of a real person.

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