son joins a partnership as a member, he does not, without a special promise, assume the previous debts of the firm, nor is he bound by them. To render persons jointly liable upon a contract as partners, they must have a joint interest contemporary with the formation of the contract. (c) If, however, goods are purchased in pursuance of a previous agreement between two or more persons, that one of them should purchase the goods on joint account, in a foreign adventure, they are all answerable to the seller for the price, as partners, even though their names were not announced to the seller; for the previous agreement made the partnership precede the purchase, and a joint interest attached in the goods at the instant of the purchase. (d)

II. Of the Rights and Duties of Partners in their Relation to each

Other, and to the Public. -(1) Of the Interest of Partners in their Stock in Trade. Partners are joint tenants of their stock in trade, but without the jus accrescendi, or right of survivorship; and this, according to Lord Coke, (e) was part of the law merchant, for the advancement and continuance of commerce and trade. It would seem, however, to have been a point of some doubt as late as the middle of the seventeenth century, whether

the doctrine of survivorship did not apply; for the Lord *37 Keeper, * in Jeffereys v. Small, (a) observed that it was

common, at that time, for traders, in articles of copartnership, to provide against survivorship, though he declared that the provision was clearly unnecessary. On the death of one partner, his representatives become tenants in common with the survivor; and with respect to choses in action, survivorship so far exists at law, that the remedy to reduce them into possession vests exclusively in the survivor, for the benefit of all the parties in interest. (b) But no partner has an exclusive right to any part of

(c) Saville v. Robertson, 4 T. R. 720; Young v. Hunter, 4 Taunt. 582; Poindexter v. Waddy, 6 Munf. 418; Gow on Partn. 150-152; Collyer on Partn. 735-743. Mr. Justice Story, in his Comm. on Partn. [§§ 147-153,] has examined the cases replete with complex and refined discussions, as to the acts preliminary to the formation of a partnership, which do or do not bind the partnership when consummated. The general doctrine, as the learned judge observes, is well summed up by Mr. Collyer. (d) Gouthwaite v. Duckworth, 12 East, 421; Collyer on Partn. 357-360; Story on Partn. [§ 148.] (e) Co. Litt. 182 a. (a) 1 Vern. 217. (b) Martin v. Crompe, 1 Ld. Raym. 340; Daniel, J., in Jarvis v. Hyer, 4 Dev. (N. C.) 369.

An exhaustive discussion of the law as to chattels in possession where the

authorities are collected by Mr. Baron Parke, and the doctrine in the text con.

the joint stock, until a balance of accounts be struck between him and his copartners, and the amount of his interest accurately ascertained. The interest of each partner in the partnership property is his share in the surplus, after the partnership accounts are settled and all just claims satisfied; and it follows, that no suit at law can be maintained by one partner against his copartner, until a final settlement has been made, and the balance ascertained, and a promise contracted to pay it. (c)2

(e) Nicoll v. Mumford, 4 Johns. Ch. 522; Fox v. Hanbury, Cowp. 445; Taylor v. Fields, 4 Ves. 396; 15 Ves. 559, note, s. c.; Parsons, C. J., in Pierce v. Jackson, 6 Mass. 242; Holmes v. Higgins, 1 B. & C. 74; Killam v. Preston, 4 Watts & S. 14; Foster v. Allanson, 2 T. R. 479; Fromont v. Coupland, 2 Bing. 170 One partner

having only his separate interest in the surplus, cannot, of course, sell or mortgage an undivided interest in a specific part. Morrison v. Blodgett, 8 N. H. 238; Lovejoy v. Bowers, 11 id. 406. Though each partner is bound to bestow his services and labor with due diligence and skill, he is not entitled to any reward or compensation, unless there be an express stipulation between the partners for that purpose. The law does not undertake to measure between the partners the relative value of their services bestowed on the joint business. Thornton v. Proctor, 1 Anst. 94; Caldwell v. Leiber, Paige, 483; Anderson v. Taylor, 2 Ired. Eq. (N. C.) 420; Burden v. Burden, 1 Ves. & B. 170; Story on Partn. [§ 182;] Franklin v. Robinson, 1 Johns. Ch. 157, 165; Bradford v. Kimberly, 3 Johns. Ch. 433; Whittle v. McFarlane, 1 Knapp, P. C. 311.

firmed will be found in Buckley v. Barber, 6 Exch. 164. See, also, Holden v. M'Makin, 1 Pars. Eq. 270, 277. As to choses in action at law, see Holbrook v. Lackey, 13 Met. 182; Stearns v. Houghton, 38 Vt. 583; Felton v. Reid, 7 Jones, N. C. 269; Rice v. Richards, 1 Busb. Eq. 277; Daby v. Ericsson, 45 N. Y. 786; post, 58, n. (a); in equity, post, 58, n. 1.

2 Suits between Partners.- Holyoke v. Mayo, 50 Me. 385; Ryder v. Wilcox, 103 Mass. 24; Harris v. Harris, 39 N. H. 45; Ordiorne v. Woodman, ib. 541; White v. Harlow, 5 Gray, 463; Crottes v. Frigerio, 18 La. An. 283; De Jarnette v. McQueen, 21 Ala. 230; Ives v. Miller, 19 Barb. 196; Drew v. Ferson, 22 Wisc. 651; Page v. Thompson, 33 Ind. 137; Farrar v. Pearson, 58 Me. 561.

It is laid down that the promise need not be express, in Van Amringe v. Ellmaker, 4 (Barr) Penn. St., 281; Knerr v. Hoffman, 65 Penn. St. 126; Wycoff v. Purnell, 10 Iowa, 332; Wray v. Milestone, 6 M. & W. 21. See especially Sikes v.

Work, 6 Gray, 433; Shattuck v. Lawson, 10 Gray, 405; Wright v. Cumpsty, 41 Penn. St. 102; Finlay v. Stewart, 56 Penn. St. 183; but compare Harris v. Harris, 39 N. H. 45, 50. Contra, Chadsey v. Harrison, 11 Ill. 151; Pattison v. Blanchard, 6 Barb. 537; and some earlier cases.

The rule stated in the text does not apply to all cases. For instance, where the contract, debt, or security is a separate not a partnership contract, &c. Crater v. Bininger, 45 N. Y. 545; Gridley v. Dole, 4 Comst. 486; Chamberlain v. Walker, 10 Allen, 429; Wright v. Michie, 6 Gratt. 354; Edens v. Williams, 36 Ill. 252; Elder v. Hood, 38 Ill. 533; Caswell v. Cooper, 18 Ill. 532; Collamer v. Foster, 26 Vt. 754; Cross v. Cheshire, 7 Exch. 43; Sedgwick v. Daniell, 2 Hurlst. & N. 319. See Coleman v. Coleman, 12 Rich. 183. So a contract in contemplation of partnership merely, and preliminary to it. Currier v. Webster, 45 N. H. 226; Currier v. Rowe, 46 N. H. 72; French v. Styring, 2 C. B. N. s. 357; Vance v. Blair

(2) Stock in Land.-If partnership capital be invested in land for the benefit of the company, though it may be a joint tenancy in law, yet equity will hold it to be a tenancy in common, and as forming part of the partnership fund; and the better opinion would seem to be, that equity will consider the person in whom the legal estate is vested as trustee for the whole concern, and the property will be entitled to be distributed as personal estate. (d) The point has been extensively discussed and * considered in this country, and the cases are not inconsistent with this principle, when they admit, upon grounds of reason and policy, that real estate, acquired with partnership funds, and held by partners in common, may be conveyed or charged by one partner, on his private account, to the extent of his legal title, whether that legal title covers the whole or a part

38

(d) Thornton v. Dixon, 3 Bro. C. C. 199; Lord Loughborough, in Smith v. Smith, 6 Ves. 189; Ripley v. Waterworth, 7 Ves. 425; Featherstonhaugh v. Fenwick, 17 Ves. 298; Lord Eldon, in Townsend v. Devaynes, cited in Gow on Partn. 54, ed. Phil. 1825; in Selkrig v. Davis, 2 Dow, 242, and in Crawshay v. Maule, 1 Swanst. 521; Sigour ney v. Munn, 7 Conn. 11; Hoxie v. Carr, 1 Sumner, 182-186; Ex parte Banks, Newfoundland R. 396. Contra, Sir William Grant, in Bell v. Phyn, 7 Ves. 453; and Balmain v. Shore, 9 Ves. 500; Gow on Partn. 54, 55. In Sigourney v. Munn, the English and American authorities were fully examined, and the subject discussed; and the doctrine declared, that real estate acquired with partnership funds, for partnership purposes, would be regarded in equity as partnership stock, and liable to all the incidents of partnership property. It might, also, by agreement of the parties, be regarded as personal stock of the company. The English Vice-Chancellor, in Randall v. Randall, 7 Sim. 271, reviewed, among others, the cases of Thornton v. Dixon, Ripley v. Waterworth, Bell v. Phyn, Balmain v. Shore, and Crawshay v. Maule, above mentioned, together with the cases of Phillips v. Phillips, 1 My. & K. 649, and Broom v. Broom, 3 id. 443, and came to the conclusion declared in Sigour ney v. Munn, that the English chancery doctrine, considering real estate as personal property, was applicable only to lands purchased with partnership capital, for the purposes of a partnership trade.

18 Ohio, 532; Terry v. Carter, 25 Miss. 6 Beav. 871. Compare Featherstonhaugh 168. r. Turner, 25 Beav. 382, 392. As to interest, see In re German Mining Co., Er parte Chippendale, 4 De G., Macn. & G. 19; 19 Eng. L. & Eq. 591; 27 id 158; Hill v. King, 9 Jur. N. s. 527; Wood v. Scoles, L. R. 1 Ch. 369; Watney v. Wells, L. R. 2 Ch. 250; Gyger's Appeal, 62 Penn. St. 73; Morris v. Allen, 1 McCarter, 44; Millar v. Craig, 6 Beav. 433; Desha v. Smith, 20 Ala. 747. It may be allowed when such is the usage of trade.

The principles stated in note (c), and more fully ante, 25, n. (b), ad fin., are confirmed in Hutcheson v. Smith, 5 Ir. Eq. 117; Coursen v. Hamlin, 2 Duer, 513; Day v. Lockwood, 24 Conn. 185; Lyman v. Lyman, 2 Paine, 11; King v. Hamil ton, 16 Ill. 190. So as to services of surviving partner in winding up. Brown v. McFarland, 41 Penn. St. 129; Piper v. Smith, 1 Head, 93; Stocken v. Dawson

of the estate; provided the purchaser or mortgagee dealt with him bona fide, and without notice of the partnership rights, and there was nothing in the transaction from which notice might reasonably be inferred. (a) In Tennessee, an estate so held in joint tenancy by partners for the purposes of trade, descends and vests in the heirs at law of a deceased partner as real estate. (b) In New York, the Supreme Court, upon the strength of the ultimate opinion of Lord Thurlow, in Thornton v. Dixon, and of the opinion of the Master of the Rolls, in Balmain v. Shore, declared, in Coles v. Coles, (c) that the principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, did not apply to real estates; and that in the absence of special covenants between the parties, real estate owned by partners was to be considered and treated as such, without any reference to the partnership. The language of the Supreme Court of Massachusetts, *in *39 Goodwin v. Richardson, (a) is nearly to the same effect; and it seemed to be considered, that partners purchasing an estate out of the joint funds, and taking one conveyance to themselves as tenants in common, would hold their undivided moieties in separate and independent titles, and that the same would go, on the insolvency of the firm, or on the death of either, to pay their respective creditors at large.

These latter cases, and particularly the one in New York, go to the entire subversion of the equity doctrine now prevalent in

(a) Forde v. Herron, 4 Munf. 316; M'Dermot v. Laurence, 7 Serg. & R. 438. In Hoxie v. Carr, 1 Sumner, 173, it was held, that where a purchaser of real estate has actual, or is chargeable with constructive notice, that it was partnership property, the estate is chargeable in his hands with the payment of the partnership debts, even though he had no notice of the partnership debts.

(b) M'Allister v. Montgomery, 3 Hayw. 96. In Yeatman v. Woods, 6 Yerg. 20, real estate held by partners, for partnership purposes, was held to descend and vest, upon the death of one of the partners, in his heirs at law, as real estate. This was upon the strength of the case in 3 Haywood, but with an evident reluctance in the court to depart from the English rule in equity which now holds such estate to be personal stock, and distributable as such. In South Carolina one party cannot transfer the real estate of the firm, and used for its business, by deed, unless it be in a case in which the buying and selling of real estate is the object of the partnership. Robinson v. Crowder, 4 M'Cord, 519. The deed can convey only his individual share or title. Story on Partn. [§ 119.] The partners hold real estate as joint tenants, or tenants in common, as the case may be, and one partner cannot, by virtue of the partnership power, sell for the other. He must be specially authorized. Lawrence v. Taylor, 5 Hill (N. Y.), 107.

(c) 15 Johns. 159.

(a) 11 Mass. 469.

England; but the other American decisions are more restricted in their operation, and are not inconsistent with the more correct and improved view of the English law. Their object is to secure the rights of purchasers and encumbrancers without notice from being affected by a claim of partnership rights of which they were ignorant. In Edgar v. Donnally, (b) a right to land had

(b) 2 Munf. 387. But in Deloney v. Hutcheson, 2 Rand. 183, the appropriation of partnership lands, as assets to partnership debts, in preference to other debts, was denied; and it was held that lands purchased by partners, for partnership purposes, was an estate in common, both at law and equity; and that a surviving partner had no other remedy as a creditor than any other creditor. In Blake v. Nutter, 19 Maine, 16, this was declared to be the rule at law, but no opinion was expressed as to the rule in equity. Other American cases hold a different language; thus, in Winslow v. Chiffelle, [Harper (S. C.), 25,] it was held, that lands held and used by partners, in the business of a mill, were copartnership property, and subject to be applied, like other partnership property, to the payment of partnership debts, in preference to the claims of separate creditors. So, in Greene v. Greene, 1 Ohio, 249, it was held, that lands purchased with partnership funds, for partnership purposes, and under articles that the partnership property should be sold for the payment of debts, were to be considered and applied as personal assets of the partnership as between the partners and their creditors, and were not subject to the dower of the widow of a deceased partner as against partnership debts. And again, in Marvin v. Trumbull, Wright (Ohio), 386, real estate, purchased and held as partnership property, was held to be subjected to the debts of the firm, in preference to the debt of an individual member of it, the creditor having notice. And in Hoxie v. Carr, 1 Sumner, 173, it was declared, that real estate purchased for partnership purposes, and on partnership account, would in equity be deemed partnership property and personal estate, though at law it would be dealt with according to the legal title. The general principle now declared in the English law is, that real estate acquired for the purpose of a trading concern, is to be considered as partnership property, and to be first applied in satisfaction of the demands of the partnership. Fereday v. Wightwick, 1 Russ. & My. 45. The Chief Justice of Massachusetts, in Burnside v. Merrick, 4 Met. 541, says, the prevailing judicial opinion now is, that real estate purchased by partners, with partnership funds, for partnership purposes, though at law it may be held by them as tenants in common, yet in equity it is considered as held in trust as part of the partnership property, applicable in the first place exclusively to pay the partnership debts. Dyer v. Clark, and Howard v. Priest, 5 Met. 562, 582; Divine v. Mitchum, 4 B. Mon. 488, s. p. The prevalence and the correctness of this opinion appear to be incontestable. It is taken to be personal estate, and retains that character as between the real and personal representatives of a deceased partner. Townsend v. Devaynes, Crawshay v. Maule, and Selkrig v. Davies, cited supra, 37, note; Phillips v. Phillips, 1 My. & K. 649; Story, J., in Hoxie v. Carr, 1 Sumner, 183-186. The Vice-Chancellor in New York, in Smith v. Jackson, 2 Edw. Ch. 28, reviews all the conflicting cases on this point; and he follows the Supreme Court of New York, and holds, that though real estate be purchased with joint funds for partnership purposes, there is no survivorship as to the real estate, and the share of a deceased partner, as a tenant in common, descends to his heirs, unless there be an agreement among the partners that the lands so purchased shall be considered as personal property; and that then, upon the foot of that agreement, and not without it, equity would apply the lands to