ments (the reverse of the benevolent provisions of the existing law) to depend entirely for support on the contributions of the poorest class of passengers, and debarred from those resources derived from the wealth and commerce of the country, which at present enable railway companies to confer, for a trifling charge, the benefits of their system on the humblest ranks of society. I remain, dear Sir, Yours very faithfully, A JUDGE OF THE COUNTY COURTS. ART. III. TREATISE ON THE CONTRACT OF PRELIMINARY ARTICLE. 1. PARTNERSHIP is a contract, by which two or more persons put, or oblige themselves to put, something in common, in order to make therefrom in common a lawful profit, of which they reciprocally bind themselves to render each other an account. * This Treatise, on the very important subject of Partnership, has been selected for translation, in preference to modern French works on the same subject; first, because it shows better than any other how the Roman Law has been incorporated in the laws of most European countries; and, secondly, because the French Civil Code upon this subject, as indeed, upon all others, is little more than an analysis of Pothier. The French Civil Code and Code of Commerce, together with brief notices of the Laws of England, Scotland, and other countries on the subject, are contained in the notes. This treatise will also assist the consideration of Limited Liability in Partnership, as to which see 9 L. R. p. 74., 10 L. R. p. 123., and post, Art. V. 1 Partnership is a contract by which two or more persons agree to put something in common with a view of dividing the profit which may result therefrom. Civil Code of France, art. 1832. Every partnership must have a lawful object, and be contracted for the common interest of the parties. Ibid., art. 1833. See Wats. Partn. 1. Coll. Partn. 2. 2 Bell's Comm. p. 613., 4th edit. Stor. Partn. 2. Code of Louisiana, art. 2772. 2775. We shall treat in the First Chapter, of the nature of the Contract of Partnership. We shall enumerate in the Second, the different kinds of Partnerships; in the Third, the different clauses in Partnership Contracts. We shall examine in the Fourth, what are the forms which our law requires in the Contract of Partnership. We shall treat in the Fifth, of the right each of the partners has to the Partnership Property. In the Sixth, how each of them is bound by debts. In the Seventh, of the obligations which arise from the Contract of Partnership. We shall examine in the Eighth, how Partnership is dissolved. In the Ninth, we shall treat of the distribution of the Partnership effects. FIRST CHAPTER. Of the nature of the Contract of Partnership. WE shall examine,-1. Wherein Partnership differs from community or partownership. 2. To what class of contracts it belongs. 3. What is of its essence. 4. What natural equity requires in this contract. 5. We shall treat of fictitious Contracts of Partnership. § I. In what Partnership differs from Community or 2. Partnership and Community are not the same thing. Partnership is a contract, by which two or more persons Code of Louisiana," art. 2777. The same distinction exists in our Law between Partnership and Community, or Partownership. In both, indeed, there exists a community of interest; in the former, however, it is the result of a contract between the parties, whereby there is either expressed or implied a community of profit and loss; the latter often either exists independent of any contract whatever, as in the case of joint legatees, or devisees, or coheirs, or at any rate independent of any contract implying a community of profit and loss; as where persons jointly purchase property, which is not to be sold for their common benefit, but to be allotted to them in distinct shares, such community of interest will not constitute a partnership. Hoare v. Dawes, Doug. 371.; Coope v. Eyre, 1 H. Black, 37.; Gibson v. Lupton, 9 Bingh, 297. So, likewise, although there is a community of interest between the representatives of a deceased agree to put something in common. When in execution of that contract they have actually put in common what they agreed to do, a community certainly is formed between them; but this kind of community is also called a partnership, because it is formed in execution of a contract of partnership. There is also a community which exists between several persons, without the intervention of any contract, and consequently without any contract of partnership, as when an estate has descended to co-heirs, or a legacy has been bequeathed to several legatees jointly. In these cases there exists amongst the heirs a community of the descended estate, amongst the legatees a community of the property bequeathed, but there is no partnership between them. A community of this kind is not a contract, but a quasi contract, which creates, amongst persons having things in common, obligations similar to those which have their origin from the contract of partnership.1 3. In this alone consists the difference between partnership and community. It is a gross error to say, with the author of "The Conferences of Paris," vol. ii. p. 15., that partnership differs from community in this respect, viz. "that in partnership the capital brought in by each of the partners is not common, and that the profits only are properly common." This is erroneous. For if partners sometimes put into partnership the use only of certain things, of which they remain each separately the owners, they sometimes also put into partnership the things which they bring into it, and render them common amongst themselves, as well with respect to property as with respect to mere enjoyment. partner and the surviving partners, there is not, independently of contract, any partnership between them. Pearce v. Chamberlain, 2 Ves. 33. Upon the same principle, where persons engage to do some particular work and receive money for it, not on a joint account or for their joint benefit, but to be divisible between them on receipt; the contracting parties, it seems, will not be partners but joint contractors. Finckle v. Stacy, Sel. Ch. Ca. 9. See the remarks of Wigram, V. C., 7 Hare, 174. 3 Ersk. 3. § 13. Bell's Law of Scotland, 133. Pothier treats of these quasi contracts in an Appendix to this treatise. To establish this paradox, the author of "The Conferences" cites in another place these terms of Law 13. § 1. ff. De Præscr. Verb. (Dig. Lib. 19. tit. 5. 1. 13. § 1.) "Nemo societatem contrahendo rei suæ dominus esse desinit." That author has not understood the case in this paragraph. It is this; the owner of a certain plot of ground conveys the whole of it to you, upon condition that after you have built upon it you will reconvey to him a portion of the ground so built upon. Julian asks, what kind of contract is comprehended in this agreement? He says, that it is not a Contract of Partnership, because the owner has sold the plot of ground entirely to you, and that nemo societatem contrahendo rei suæ dominus esse desinit; that is to say, that he, who puts a thing into partnership, does not cease entirely to be owner of it, save only so far as regards one part of it, which he transfers to his partner by making it common; and he adds at the end, that it would be a Contract of Partnership if a part only of the land were conveyed to you. § II. To what Class of Contracts Partnership belongs. 4. Partnership is a contract of natural right, which is formed and governed by the rules only of natural justice. All partnerships must be reduced into writing, when their object is more than the value of one hundred and fifty francs. No evidence is admissible against or beyond the contents of the act of partnership, nor concerning what shall be alleged to have been said before, at the time of, or subsequently to such act, although the question be of a sum or value less than one hundred and fifty francs. Civ. Code of France, art. It will be observed, that the regulations of the ordonnance, which Pothier says had fallen into disuse in his time, have been retained in the French Code. According to the Law of England, no writing is necessary to constitute a private unincorporated partnership, the consent of the parties, or their dealings from which a contract may be implied, being sufficient for that purpose ; (Peacock v. Peacock, 16 Ves. 49.; Featherstonhaugh v. Fenwick, 17 Ves. 298.; Alderson v. Clay, 1 Stark. 405.;) and when there is an agreement in writing, it is by the unanimous concurrence of all the partners, open to variations from day to day, and the terms of such variations may not only be evidenced by writing, but also by the conduct of the parties in relation to the agreement and their mode of carrying on the business (England v. Curling, 8 Beav. 129. 133. 137. and see Geddes v. Wallace, 2 Bli. (O. S.) 270. 295. 297.); and special clauses in partnership articles, for instance, as to the mode of taking accounts, will be conVOL. XVII. U If the Ordonnances have prescribed certain formalities for this contract, they have only been prescribed in order to serve as a proof of it, nor do they belong to its substance. Although they may not have been observed, the contract between the contracting parties is complete, and it creates between them the obligations which arise therefrom; it is only with respect to third parties that these formalities are required. 5. This contract, like those of sale and of letting out to hire, is consensual; that is to say, it is formed by the consent alone of the contracting parties, and is perfectly complete as soon as the parties have each agreed to bring something in common, although they may not at that time have actually contributed their quota. 6. This contract is synallagmatic or bilateral, for each of the parties by it engages himself reciprocally towards the others. 7. Lastly, it is a commutative contract, as each of the contracting parties expects to receive as much as he gives. § III. What is of the Essence of the Contract of Partnership. 8. It is essential in the contract of Partnership, first, that each of the parties should bring or oblige himself to bring sidered as expunged from the articles if the parties have not acted on them. Jackson v. Sedgwick, 1 Swanst. 460. 469. The contract of Partnership, as it is founded on the consent of the parties, must be entered into with perfect good faith, hence, when a person has been induced by fraud or misrepresentation to become a partner, a Court of Equity will not only declare the contract to be void, but will put the injured party as far as possible in possession of his original rights and property. Tattersall v. Groote, 2 Bos. & Pull. 131.; Ex parte Broome, 1 Rose, 69.; Green v. Barrett, 1 Sim. 45.; Oldaker v. Lavender, 6 Sim. 239. Stor. Partn. 341.; Coll. Partn. 244, 245. 5 Code of Louisiana, art. 2776. Ibid., art. 2772. Ibid., art. 2772. 8 Every partner must bring to the partnership either money, or other property, or his skill. Civ. Code of France, art. 1833. Code of Louisiana, art. 2772. With regard to the partners, inter sese, our law is the same in this respect (Peacock v. Peacock, 16 Ves. 49.; Reid v. Hollinshead, 4 B. & C. 878.; 7 Dow. Ryl. 444.; Meyer v. Sharpe, 5 Taunt. 74.; Cheap v. Cramond, 4 B. & A. 663.); but with regard to third parties, if a person holds himself out as a partner; as, |