been acquired with partnership stock and a title taken in the name of the surviving partner, and a claimant under the deceased partner was held entitled in equity to a moiety of the land, against a purchaser, from the survivor, with notice of the partnership right. This was a recognition of the true rule of equity on the subject.1

pay partnership debts. Nay, he gives the wife her dower in the partnership share of the husband so descended. The decisions on this side of the question appear to me to be a sacrifice of a principle of policy, and, above all, a principle of justice, to a technical rule of doubtful authority. There is no need of any other agreement than what the law will necessarily imply, from the fact of an investment of partnership funds, by the firm, in real estate, for partnership purposes. If the partners mean to deal honestly, they cannot have any other intention than the appropriation of the investment, if wanted, to pay the partnership debts. Mr. Collyer, in his treatise on the Law of Partnership, first published in London in 1832, concludes his review of the cases with holding it to be the better opinion, that although the legal estate in freehold property purchased by partners, for the purposes of their trade, will go in the ordinary course of descent without survivorship, yet the equitable interest in such property will be held to be part of the partnership stock, and distributable as personal estate. Collyer on Partn. 76.

1 Partnership Lands. It is generally admitted that real estate bought with partnership funds, for partnership purposes, is partnership property, whether the legal title is taken in the name of one or of all the partners. Putnam v. Dobbins, 38 Ill. 394; Buchan v. Sumner, 2 Barb. Ch. 165; Crooker v. Crooker, 46 Me. 250; Buffum v. Buffum, 49 Me. 108; Jarvis v. Brooks, 7 Fost (27 N. H.) 37; Willis v. Freeman, 35 Vt. 44; Abbott's Appeal, 50 Penn. St. 234; Erwin's Appeal, 39 Penn. St. 535; Uhler v. Semple, 5 C. E. Green (20 N. J. Ch.), 288; Tillinghast v. Champlin, 4 R. I. 173; Richards v. Manson, 101 Mass. 482, 485; Fall River Whaling Co. v. Borden, 10 Cush. 458; Robertson v. Baker, 11 Fla. 192, 228; Buck v. Winn, 11 B. Mon. 320. Compare Galbraith v. Gedge, 16 B. Mon. 631, 636; Bank of England Case, 3 De G., F. & J. 645, 658; Seward v. Blakeway, L. R. 4 Ch. 603; L. R.6 Eq. 479. Compare Brooke v. Washington, 8 Gratt. 248; Dewey v. Dewey, 35 Vt. 555; North Penn. Coal Co.'s Appeal, 45 Penn. St. 181; Boyers r. Elliott, 7 Humph. 204. And the part

nership equities are enforced against the heirs, devisees, or widow of the partner who held the legal title, as in other trusts. Smith v. Jackson, sup. n. (b), is said in Mr. Gray's very valuable note to Story on P. § 93 to stand alone. Duhring v. Duhring, 20 Mo. 174; Galbraith v. Gedge, 16 B. Mon. 631; Shearer v. Shearer, 98 Mass. 107, 111; Wilcox v. Wilcox, 13 All. 252, 254; Goodburn v. Stevens, 1 Md. Ch. 420; Matlock v. Matlock, 5 Ind. 403; Loubat v. Nourse, 5 Fla. 350. In like manner the partnership creditors are preferred in equity to separate creditors, in their claim on the partnership land. Collumb v. Read, 24 N. Y. 505; Jones v. Neale, 2 Patt. & Heath, 339; Fall River Whaling Co. v. Borden, 10 Cush. 458; Crooker v. Crooker, 46 Me. 250; Reeves v. Ayers, 38 Ill. 418; Boyers v. Elliott, 7 Humph. 204. But see Ridgway's Appeal, 15 Penn. St. 177, criticised in Gray's note, sup. But the creditors have no equity to prevent partners from bona fide, and for a valuable consideration, changing its character from joint to separate property (ever if the firm and both partners are insol

(3) As Ship-owners. In Nicoll v. Mumford, (c) it was held, that ship-owners were tenants in common, and were not to be considered as partners, nor liable each in solido, nor entitled *40 in the settlement of * accounts, on the principle of partnership. The doctrine of Lord Hardwicke on this point, in Doddington v. Hallet, (a) was considered to be overruled by the modern decisions in chancery; (b) and by the universal understanding in the commercial world. But when the case of Nicoll v. Mumford was reviewed in the Court of Errors, (c) the doc

(c) 4 Johns. Ch. 522. See, also, post, 154, 155. [& n. 1.]

(b) See 5 Ves. 575; 2 Ves. & B. 242; 2 Rose, 76, 78; 1 Montague on Partn. 102, note; Merrill v. Bartlett, 6 Pick. 47. In this last case it was declared, that part shipowners had no lien upon the part of a bankrupt companion for his proportion of the advances of the outfit. Part owners, or tenants in common, are not answerable for each other's debts.

(c) 20 Johns. 611. In Hewitt v. Sturdevant, 4 B. Mon. 458, 459, the Court of Appeals in Kentucky adhered to the doctrine of Lord Hardwicke, that a joint owner of a ship was entitled to a lien as against the administrator or general creditor, upon the share of his intestate, a cobuilder and fitterout of the vessel for excess of advances over his aliquot part.

vent). Richards v. Manson, 101 Mass. 603, 609; L. R. 6 Eq. 479; and compare 482, 487; post, 65, n. 2.

trine of Lord Hardwicke was considered by the majority of the judges to be the better doctrine; and there is no doubt but that there may be a special partnership in a ship, as well as in the cargo, in regard to a particular voyage or adventure. (d) It was assumed by the court, in Lamb v. Durant, (e) that vessels, as well as other chattels, might be held in strict partnership, with all the control in each partner incident to commercial partnerships. But this must be considered an exception to the general rule; and the parties to property in a ship, however that property may be acquired, are entitled as tenants in common, and each party can sell only his own share, and the right of survivorship does not apply to the case. (f)1

(4) Acts by which One Partner may bind the Firm.-The act of each partner, in transactions relating to partnership, is considered the act of all, and binds all. He can buy and sell partnership effects, and make contracts in reference to the business of the firm, and pay and receive, * and draw and *41 indorse, and accept bills and notes, and assign choses in action. Acts in which they all unite differ in nothing, in respect to legal consequences, from transactions in which they are concerned individually; but it is the capacity by which each partner is enabled to act as a principal, and as the authorized agent of his copartners, that gives credit and efficacy to the association. The act of one partner, though on his private account, and contrary to the private arrangement among themselves, will bind all the parties, if made without knowledge in the other party of the arrangement, and in a matter which,, according to the usual

(d) See infra, 154, 155.

(e) 12 Mass. 54. So, also, in Seabrook v. Rose, 2 Hill, Ch. (S. C.) 555, 556. Ch. De Saussure held, according to the doctrine in the N. Y. Court of Errors, that owning a ship, employed in trade by several persons, in distinct shares, constituted a partnership, with all its legal incidents; but the Court of Appeals (558), while they admitted that every species of property might be held in partnership, gave no opinion on the question whether a ship owned in distinct shares, and employed in trade, was, as between the owners, partnership property, or liable to be so regarded by creditors, beyond certain specified limits.

(f) Story on Partn. [§ 417.]

1 Post, 155, n. 1; Doddington v. Hallet is overruled in England. Green v. Briggs, 6 Hare, 395, 401, and other cases eited, 155, n. 1. And where no special

relation exists, but the parties are merely

part owners, and, as such, tenants in common, one has no lien on the share of another for advances. Ib.; The Larch, 2 Curt. 427.

course of dealing, has reference to business transacted by the firm. (a)

The books abound with numerous and subtle distinctions on the subject of the extent of the power of one partner to bind the company; and I shall not attempt to do more than select the leading rules, and give a general analysis of the cases.

In all contracts concerning negotiable paper, the act of one partner binds all, and even though he signs his individual name, provided it appears, on the face of the paper, to be on partnership account, and to be intended to have a joint operation. (b)1 But if a note or bill be drawn, or other contract be made, by one partner in his name only, and without appearing to be on partnership account, or if one partner borrow money on his own security, the partnership is not bound by the signature, even though it was made for a partnership purpose, or the money applied to a partnership use. (c) The borrowing partner is the creditor of the firm, and not the original lender, and the money was advanced

(a) Hope v. Cust, cited in 1 East, 53; Swan v. Steele, 7 East, 210; Rothwell v. Humphreys, 1 Esp. 406; Abbott, C. J., Sandilands v. Marsh, 2 B. & Ald. 673; Ex parte Agace, 2 Cox, 312; Shippen, J., Gerard v. Basse, 1 Dall. 119; Parker, C. J., in Lamb v. Durant, 12 Mass. 57, 58; Mills v. Barber, 4 Day, 428; United States Bank v. Binney, 5 Mason, 187, 188; Etheridge v. Binney, 9 Pick. 272, 275; Winship v. United States Bank, 5 Pet. 529; Le Roy v. Johnson, 2 Pet. 186; Pothier, Traité du Con. de Soc. n. 96-105; Story on Partn. [§ 102]; Everit v. Strong, 5 Hill (N. Y.), 163; Gano v. Samuel, 14 Ohio, 592. One partner may be restrained by injunction from accepting and indorsing bills, the produce of which is intended to be applied to other than partnership purposes. Lord Ch. Brougham, 2 Russ. & My. 470, 486. An ordinary partnership, under the Louisianian Code, art. 2843, 2845, differs in this respect from commercial partnerships, under the law-merchant, for in that code ordi nary partners are not bound in solido for the debts of the partnership; and no one partner can bind the others, unless they have given him power to do so, either specially or by the articles of partnership, though the other partners may be bound ratably, if the partnership was benefited by the act.

(b) Mason v. Rumsey, 1 Camp. 384. In the case of commercial partnerships there is a general authority by the law-merchant for each partner to bind the firm in its ordinary business; but partners in other business, as attorneys, for instance, have no such general authority, and cannot bind the firm by negotiable paper without special authority. Hedley v. Bainbridge, 2 G. & D. 483; Levy v. Payne, 1 Carr. & M. 453.

(c) In Hall v. Smith, 1 B. & C. 407, it was held, that if one partner only signed a note on behalf of himself and the other partners, he was liable at law to be sued singly. But that case is overruled, and the partnership is liable as for a joint note. Ex parte Buckley, 15 L. J. N. s. By. 3; 5 N. Y. Leg. Obs. 82.

1 Hill v. Voorhies, 22 Penn. St. 68;

Crozier

. Kirker, 4 Texas, 252. Sec

Hamilton v. Summers, 12 B. Mon. 11
But see Heenan v. Nash, 8 Minn. 407.

*42

solely on the security of the borrower. (d)2 If, however, *the bill be drawn by one partner, in his own name, upon the firm or partnership account, the act of drawing has been held to amount, in judgment of law, to an acceptance of the bill by the drawer in behalf of the firm, and to bind the firm as an accepted bill. (a) And though the partnership be not bound at law in such a case, it is held that equity will enforce payment from it, if the bill was actually drawn on partnership account. (b) Even if the paper was made in a case which was not in its nature a partnership transaction, yet it will bind the firm if it was done in the name of the firm, and there be evidence that it was done under its express or implied sanction. (c) But if partnership security be taken from one partner, without the previous knowl edge and consent of the others, for a debt which the creditor knew at the time was the private debt of the particular partner, it would be a fraudulent transaction, and clearly void in respect to the partnership. (d) So, if from the subject-matter of the contract, or the course of dealing of the partnership, the creditor was chargeable with constructive knowledge of that fact, the partnership is not liable. (e) There is no distinction in principle upon this point between general and special partnerships; and the question, in all cases, is a question of notice, express or constructive. All partnerships are more or less limited. There is none that embraces, at the same time, every branch of business;

(d) Siffkin v. Walker, 2 Camp. 308; Ripley v. Kingsbury, 1 Day, 150, note; Emly v. Lye, 15 East, 7; Loyd v. Freshfield, 2 Carr. & P. 325; Bevan v. Lewis, 1 Sim. 376; Faith. Richmond, 11 Ad. & El. 339; Foley v. Robards, 3 Ired. (N. C.) 179, 180; Jaques v. Marquand, 6 Cowen, 497; Willis v. Hill, 2 Dev. & Batt. 231; Pothier, de Société, n. 100, 101.

(a) Dougal v. Cowles, 5 Day, 511.

(b) Van Reimsdyk v. Kane, 1 Gall. 630.

(c) Ex parte Peele, 6 Ves. 602.

(d) Arden v. Sharpe, 2 Esp. 524; Shirreff v. Wilks, 1 East, 48; Ex parte Bonbonus, 8 Ves. 540; Livingston v. Hastie, 2 Caines, 246; Lansing v. Gaine, 2 Johns. 300; Baird v. Cochran, 4 Serg. & R. 397; Chazournes v. Edwards, 3 Pick. 5; Cotton v. Evans, 1 Dev. & Batt. Eq. 284; Spencer, J., Dob v. Halsey, 16 Johns. 34, 38; Frankland v. M'Gusty, 1 Knapp P. C. 301, 306; Story on Partn. [§§ 130-133]

(e) Green v. Deakin, 2 Stark. 347; New York Firemen Insurance Company v. Bennett, 5 Conn. 574.

2 Farmers' Bank of Mo. v. Bayless, 35 Mo. 428; Logan v. Bond, 13 Ga. 192; Holmes v. Burton, 9 Vt. 252; Hammond v. Aiken, 3 Rich. Eq. 119; Hogan v. Reynolds, 8 Ala. 59; Nicholson v. Ricketts,

2 El. & El. 497. But compare Beebe v. Rogers, 3 G. Greene (Iowa), 319; Pearce v. Wilkins, 2 Comst. 469; Folk v. Wil son, 21 Md. 538.