tury. These decisions have shown, to the admiration of the world, the masterly acquaintance of the English judiciary with the principles and spirit of commercial policy and general jurisprudence, and they have afforded undoubted proofs of the entire independence, impartiality, and purity of the administration of justice. The numerous cases in the books of reports which have arisen upon maritime questions resemble elementary treatises in the depth, extent, and variety of their researches, while *19 they * partake, at the same time, of the precision and authority of legislative enactments. Lord Mansfield, at a very early period of his judicial life, introduced to the notice of the English bar the Rhodian laws, the Consolato del Mare, the laws of Oleron, the treatises of Roccus, the laws of Wisbuy, and, above all, the marine ordinances of Louis XIV., and the commentary of Valin. These authorities were cited by him in Luke v. Lyde, (a) and from that time a new direction was given to English studies, and new vigor and more liberal and enlarged views communicated to forensic investigations. Since the year 1798, the decisions of Sir William Scott (now Lord Stowell) on the admiralty side of Westminster Hall, have been read and admired, in every region of the republic of letters, as models of the most cultivated and the most enlightened human reason. The English maritime law can now be studied in the adjudged cases with at least as much profit, and with vastly more pleasure, than in the dry and formal didactic treatises and ordinances professedly devoted to the science. The doctrines are there reasoned out at large, and practically applied. The arguments at the bar, and the opinions from the bench, are intermingled with the gravest reflections, the most scrupulous morality, the soundest policy, and a thorough acquaintance with all the various topics that concern the great social interests of mankind.

Nor has our learned profession in this country been wanting in the study and cultivation of maritime law. Our improvement has been rapid and our career illustrious since the adoption of the present Constitution of the United States. There have been several respectable treatises on subjects of commercial law, some of which we may notice when we are upon the branches to which (a) 2 Burr. 882.

they are applied. The decisions in the federal courts, in commercial cases, have done credit to the moral and intellectual character of the nation; and the admiralty courts in particular have displayed great * research, and a familiar knowledge 20 of the principles of the marine law of Europe. But I should omit doing justice to my own feelings, as well as to the cause of truth, if I were not to select the decisions in Gallison's and Mason's Reports, as specimens of preeminent merit. They may fairly be placed upon a level with the best productions of the English admiralty for deep and accurate learning, as well as for the highest ability and wisdom in decision.

The reports of judicial decisions in the several states, and especially in the states of Massachusetts, New York, and Pennsylvania, evince great attention to maritime questions; and they contain abundant proofs that our courts have been dealing largely with the business of an enterprising and commercial people. Maritime law in these states became early and anxiously an object of professional research. If we take the reports of New York in chronological order, we shall find that the first five volumes occupy the period when Alexander Hamilton was a leading advocate at our bar. That accomplished lawyer (for it is in that character only that I am now permitted to refer to him) showed, by his precepts and practice, the value to be placed on the decisions of Lord Mansfield. He was well acquainted with the productions of Valin and Emerigon; and if he be not truly one of the founders of the commercial law of this state, he may at least be considered as among the earliest of those jurists who recommended those authors to the notice of the profession, and rendered the study and citation of them popular and familiar. His arguments on commercial as well as on other questions were remarkable for freedom and energy; and he was eminently distinguished for completely exhausting every subject which he discussed, and leaving no argument or objection on the adverse side unnoticed and unanswered. He traced doctrines to their source, or probed them to their foundations, and at the same time paid the highest deference and respect to sound authority. The reported cases do no kind of justice to his close and accurate logic; to his powerful and comprehensive intellect, *to*21 the extent of his knowledge, or the eloquence of his illus[ 17 ]

VOL. III.

2

trations. We may truly apply to the efforts of his mind the remark of Mr. Justice Buller, in reference to the judicial opinions of another kindred genius, that "principles were stated, reasoned upon, enlarged, and explained, until those who heard him were lost in admiration at the strength and stretch of the human understanding."

[18]

LECTURE XLIII.

OF THE LAW OF PARTNERSHIP.

PARTNERSHIP contracts have been found by experience to be convenient to persons engaged in trade, and useful to the community. Merchants are thereby enabled to consolidate their credit and extend their business. With the aid of joint counsel and accumulated capital, a spirit of enterprise is sensibly awakened, and boldness of plan and vigor of exertion communicated to mercantile concerns. Partnerships have grown with the growth and multiplied with the extension of trade; and the law by which they are regulated has been improved by the study and adoption of the best usages which the genius of commerce has introduced. It has also been cultivated and greatly enlarged, under a course of judicial decisions, until the law of partnership has at last attained the precision of a regular branch of science, and forms a distinguished part of the code of commercial jurisprudence.

In treating of this subject, I shall consider, (I.) The nature, creation, and extent of partnerships; (II.) The rights and duties of partners, in their relation to each other and to the public; (III.) The dissolution of the contract.

I of the Nature, Creation, and Extent of Partnerships. ·(1) Partnership in General. — Partnership is a contract of two or more competent persons, to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss, in certain propor- * 24 tions. (a) The two leading principles of the contract are

(a) Puffendorf, Droit de la Nat. liv. 5, c. 8, sec. 1; Pothier, Traité du Contrat de Société, n. 1; Répertoire de Jurisprudence, art. Société; Story on Partn. pp. 8, 10-19, [§ 2, 7-15.] The French ordinance of 1673 required the contract of partnership to be reduced to writing and registered; but that was the introduction of a new rule; and the regulation had gone into disuse at the time of Pothier, though he considered it to be a sage provision. (Pothier, ib. n. 79, 82, 98.) The new French commercial code has retained the regulation of the ordinance, and it requires an abstract of the articles of partnership to be attested, and publicly registered; but the

a common interest in the stock of the company, and a personal responsibility for the partnership engagements. The common interest of the partners applies to all the partnership property, whether vested in the first instance by their several contributions to the common stock, or acquired afterwards in the course of the partnership business; and that property is first liable for the debts of the company; and after they are paid, and the partnership dissolved, then it is subject to a division among the members, or their representatives, according to agreement. If one person advances funds, and another furnishes his personal services or skill, in carrying on a trade, and is to share in the profits, it amounts to a partnership. (b) But each party must engage to bring into the common stock something that is valuable; and a

mutual contribution of that which has value, and can be *25 appreciated, is of the essence of the contract. (a) It

would be a valid partnership, notwithstanding the whole capital was, in the first instance, advanced by one party, if the other contributed his time and skill to the business, and although his proportion of gain and loss was to be very unequal. It is sufficient that his interest in the profits be not intended as a mere substitute for a commission, or in lieu of brokerage, and that he be received into the association as a merchant, and not as an agent. (b) A joint possession renders persons tenants in

omission, though injurious to the parties as between themselves, does not affect the rights of third persons. (Code de Com. art. 39-44.) So, by the commercial ordinances of Bilboa, confirmed by Philip V. in 1737, ed. N. Y. 1824, c. 10, sec. 4, it was made necessary, in every partnership, to reduce the articles to writing, and acknowledge them before a notary, and file a copy with the university and house of trade. This would seem not to be now the general law in Spain; for it is admitted that partnerships may be formed, as in the English law, tacitly as well as expressly. (Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2, c. 15, translated by Johnston, London, 1825.) In Missouri, no person or copartnership shall deal as a merchant without a license. R. S. of Missouri, 1835, p. 403.

(b) Dob v. Halsey, 16 Johns. 34; Story on Partn. 19, 39, [§ 15; Dale v. Hamilton, 5 Hare, 369, 393]

(a) Pothier, Traité du Con. de Soc. n. 8, 9, 10; Ferrière, sur Inst. 3, 26; Code Napoleon, No. 1833.

(b) Reid v. Hollinshead, 4 B. & C. 867. The test of partnership is a community of profit, a specific interest in the profits, as profits, in contradistinction to a stipulated

1 Partnership as to Third Persons. · The test of partnership as to third persons, and the reasons given in Waugh v. Carver, post, 27, n. (d), 32, n. (c), 1 Sm. L. C. ad f.,

have been much discussed and broken in upon, if not overthrown in England. It is very truly said that creditors neither do nor can rely on profits for payment, for