(C) Broker. (g)

Brokers are persons employed among merchants to make contracts between them, and fix the exchange for payment of wares sold or bought. Ma. 143.

And by usage in London, freemen of the city selected out of the companies of which they are free, and presented by six at least approved members of their company to the mayor and aldermen, and by the court of aldermen allowed, have been admitted and sworn to be brokers in London. Vide the st. 1 Jac. 21. s. 1. [Vide also the st. 6 Ann. c. 16.]

[Qu. Whether the selling goods by auction within the city of

not be ascertained, disallowed. Interest not carried farther than the time the bill was filed on the ground of acquiescence. 11 Ves. 358.

69. A confidential agent, in that character bound to keep regular accounts, having neglected to do so, and to preserve vouchers against himself, though he had preserved those in his own favour, was, on the ground of gross neglect of duty, not allowed a charge in respect of bills of costs for business done as a solicitor. 8 Ves. 363.

70. A. employs B. to get bills which he had not indorsed discounted for him; B. in order to effect the discounting indorses them. Held, that A.'s estate must relieve B. from the liability incurred by the indorsements. 1 Buck. 113.

71. Agent employed to sell estates, took them for himself, under colour of a fictitious purchase; and sold part: after his death an inquiry was directed to ascertain the real value; according to which his estate was to be charged; the principal having an option to take what remained unsold: and the agent having fraudulently prevailed on his principal to execute a lease under the real value, the agent's estate was charged with the loss arising from that. 4 Ves. 411.

72. Banker.— Bill by banker, for an account of shares held in trust for him in a mercantile establishment, dismissed; the trust being in contravention of the stat. 29 Geo. 2. c. 16., which prohibits bankers from being traders. Ball & Beatty, 360.

73. The bankers' act 33 Geo. 2. c. 14. s. 4. is not applicable to cases of mutual dealings between a banker and his customer. 1 Ball & Beatty, 249.

74. Country bankers entitled to a commission on the discount of bills, although sent to them from London by a person resident there. Ex parte Jones, 1 Rose, 29. 17 Ves. 332.

75. Consignment.—The act of the consignee in respect of the cargo, binds the consignor. 1 Taunt. 300.

76. A covenant to consign property does not convey any interest therein, or make the party consignee, it being a transaction sounding in contract only. 1T. R. 205. 77. The inference from a general consignment is, that the consignee is a purchaser. 1 Taunt. 300.

78. The consignor inclosed the invoice, and a bill of lading, in a letter to the consignee, informing him that he had drawn upon him at three months. The invoice expressed that the goods were shipped for account and risk of the consignee, and the bill of lading was for delivery, paying freight. Held, that the property vested on the shipment in the consignee. 5 East, 585.

79. Where A., under previous agreement, consigns goods to B. in trust to indemnify with the proceeds C., against money which he may advance, and indorse to him the bills of lading, the property therein vests in B. on delivery to the captain. 1 B. &. P. 563.

80. When goods are consigned to a factor, they remain the property of the principal, though subject to the factor's lien for his general balance; which lien, however, as it only vests on the factor's obtaining possession of the goods, may be forestalled by the consignor's countermanding the delivery. Part payment of freight by the factor to the captain, does not amount to a taking possession. 3 T. R.

119. 783.

81. After the lapse of fifteen years from the delivery of goods consigned for sale, a presumption arises in favour of the consignee, that he has duly accounted. 1 Taunt, 572.

(g) Vide supra, (B.)

London

London by an auctioneer who has paid the duty of 20s. for a licence, required by the stat. 17 Geo. 3. c. 50., but who has not been admitted as a broker, makes him liable to the penalty of the statute for acting as a broker, without having been so admitted? Sembl. that it does not. 2 H. Bl. 555.]

But pawnbrokers, who buy and sell goods upon pawn, use an unlawful trade. Kelg. 50. [Vide stat. 30 Geo. 2. c. 24.]

And by the stat. 1 (or 2) Jac. 21. s. 5. a sale or pawn to them of goods purloined, or stolen at any place within the city or liberties of London, or in Westminster or Southwark, or within two miles of London, shall not alter the property of the goods so purloined or stolen. And an action lies against them by the owner for such goods, though the felon be not prosecuted. Kelg. 50.

And by the same stat. s. 7. if the owner require the pawnbroker to shew him such goods, and tell how he came by them, or how he hath disposed of them, and he refuse to disclose them, he forfeits double the value. [Vide stat. 30 Geo. 2. c. 24.]

[For the regulation of pawnbrokers, see 25 Geo. 3. c. 48. 27 Geo. 3. c. 37.]

(D) Ler Mercatoria.

There shall be no survivorship. (h)

Lex mercatoria, or law-merchant, is part of the law of England. Co. L. 11. b. 2 Rol. 114.

(h) AS TO THE LAW OF PARTNERSHIP.— And first, at law. Who are partners. — 1. To make a person liable as a partner, there must either be a contract between him and the ostensible person to share in the profit and loss, or he must have permitted the other to make use of his credit, and to hold him out as one jointly answerable. Doug. 371.

2. An agreement to share profits alone, cannot prevent the consequence of also sharing losses with respect to creditors. 4 East, 146.

3. If a creditor, having been jointly concerned with his debtor, agree with such debtor to be jointly and equally concerned in an adventure abroad, and that such debtor shall purchase and pay for goods for the adventure, and the returns shall be made to the creditor in liquidation of his debt; and, in consequence of such agreement, the debtor purchase goods for such adventure, it is a partnership agreement, and both debtor and creditor are liable to the vendors. 12 East, 421.

4. A. and B., ship-agents at different ports, entered into an agreement to share in certain proportions, the profits of their respective commissions, and the discount on tradesmen's bills employed by them in repairing the ships consigned to them, &c. It was, however, expressly stipulated between A. and B., that they were not to be accountable for each other's losses. Held, that although with respect to each other they were not to be considered as partners under this agreement, yet they had made themselves such with regard to all persons with whom either contracted as a ship agent. 2 H. B. 235.

5. Who not. A. B. and C. agreed that as much oil as could be procured in A.'s name only should be purchased, and they take aliquot shares of it; the oil was bought accordingly, and B. and C. were held not liable to the seller as partners with A., since it did not appear that the parties were jointly to resell the goods. 1 H. B. 37.

6. A. B. and C. agreed to join in a mercantile adventure to G. They were each to purchase separately, and to pay for separately, goods which were to be shipped for G. in the same vessel, and they were to share in the profits, if any, and the losses, if any, on the whole outfit, in proportion to the value of the goods each brought in. Held, not partners, and, therefore, not liable each on the other's purchase. 4 T. R. 720.

7. If one, purchasing goods for exportation, permits another to become partner in the adventure, the second does not thereby become liable to the vendor for the price of the goods. 4 Taunt. 582.

8. Joint

8. Joint-proprietors of a stage-coach by agreement, made known, comme semble, to the public, horse separately the several stages of the road. Held, that each was liable, and not the others, for goods furnished for the use of his horses. 2 Taunt. 49.

9. Money lent to a trader by a partner who retires from business, at legal interest, with an additional annuity, for a certain term of years, is not a continuance of the partnership. 2 Blk. 998.

10. If a person make himself responsible to the vendor for a purchase, upon an agreement with the purchaser, that if any profit arise from the sale, he shall have one-half for his trouble; this does not constitute a partnership between the parties. 4 East, 144.

11. An agent paid out of the profits of an adventure, is not therefore a partner in the goods. 5 Taunt. 74.

12. The consignment of a bag of dollars to A., with directions to pay over a certain number to B., creates no joint-tenancy between them. 4 Taunt. 24.

13. Partnership contracts. A bond is given to one of several partners as a security for money to be advanced by the firm. Held, that the money advanced might be set off in taking the general account. Note, the obligor had become bankrupt.— Quære, if the bond was not considered as a collateral security. 1 M. & S. 545.

14. A covenant in a deed of partnership, in case of dissolution, to refer all matters relating thereto to arbitration, does not include the question whether the consideration given by one partner to the other, on entering into partnership, should be refunded. 2 B. & P. 131.

15. On the question, whether articles were ordered by the firm, acts subsequent to the delivery are admissible evidence against the firm. 4 T. R. 720.

16. Partnership property. - Where the partner in England refuses to appear for those abroad, the court will not relieve against a distress to compel appearance, though the partnership property taken was paid for with his own funds. 3 B. & P.

254.

17. If on an execution against one of two partners, the partnership effects are taken and sold, the court will order the sheriff to pay over the other a share of the produce, proportioned to his share in the partnership effects, to be ascertained by the master. Dougl. 650.

18. If a fi. fa. issue against one of several partners, the court will not, upon the application of partnership creditors, either refer it to the officer to ascertain the interest of the defendant in the property seized, or (c. s.) give time to the sheriff to make his return, so as to enable them to obtain an account in equity. The proper time for the sheriff to pursue, is to put some person in possession as vendee, and to leave him and the parties interested, to contest the matters in equity. 3 B. & P. 288. 19. Upon an extent against one partuer, the crown can only take the separate interest of the partner, and that liable to the partnership debt. Wightw. 50.

20. The court will not grant an amoveas manus to remove the king's hands from partnership property, seized under an extent against one of the firm, in the first instance. The course is, to apply for a reference to the deputy-remembrancer, and that he may report an account of the joint and separate property, when an amoveas manus may be obtained by consent, on giving security. 2 Price, 198.

21. Individuality of. The indorsement of a bill or note, by one of several partners, in the partnership name, though without the consent or knowledge, and in fraud of the others, will be binding on the partnership as between them and an innocent holder. 3 Smith, 199. 7 East, 210.

22. A debt due to two jointly may be discharged by one alone. 4 T. R. 519.

23. Satisfaction of a bill or note as to one of several partners, is a satisfaction as to all; and, consequently, where a person is a partner in two firms, a bill or note, which is satisfied as to one firm, is satisfied as to both: and this, though the one common partner be, in fact, ignorant of such bills or notes having been so satisfied. 12 East, 317.

24. The act of one partner, as such, is that of the firm; if, therefore, a contract be concluded in foreign parts, by one partner, the remaining partners being resident in England, so far as the interests of this country are concerned, it is considered as made in England. 3 T. R. 454.

25. Act of one binds the firm. The implied authority of one partner to bind the firm, is confined to cases of simple contracts. He cannot bind it by deed, the privilege not being usually given by partners to one another. 7 T. R. 207. 10 East, 418.

26. Where one party has given due notice that he will not be bound by his companion's engagements, he is safe. 10 East, 264.

27. One partner cannot bind the firm, if the creditor, when he trusted him, knew that he was acting without authority. 1 East, 48, 52.

28. If, when the creditor trusted the partner, he had reason to suspect that he was acting without authority, the firm is not answerable. 10 East, 264.

29. If a separate creditor of a member of a firm, receive in payment from his debtor an accepted bill, drawn eighteen days before its delivery to the creditors, and payable forty days after date, for a sum exceeding the debt, and it does not appear that the creditor knew that the bill was indorsed by his debtor in the partnership firm, or that such payment was unknown to, or unauthorized by, the other partner, and where evidence to this effect might be adduced, the creditor is entitled to recover payment from the acceptor. 13 East, 175.

50. A private agreement for a consideration, moving to himself, by one of several carriers in partnership, to carry a customer's goods free, will not bind the firm, who may, therefore, insist upon a non-compliance with the common notice in defence of an action for negligence. 1 M. & S. 255.

31. Responsibility of each for the other. If two are partners as attorneys and conveyancers, and one receive money to be laid out on mortgage, the other is liable for the amount, though the partner give a separate receipt for it. Cowp. 314.

32. Liabilities of partners on negotiable instruments.- If a partnership are not bound on the face of a bill or note, evidence to oblige them by it, as proof that the demand for which it was given was due from all, will not be admitted. 3 Camp. 493.

33. If a bill drawn by one member of a firm, be remitted to their agent, who is in the habit of receiving bills from his employers, some drawn in the name of the firm, and some by the separate members of the firm, and the bill so remitted be taken by the agent to the bankers, who discounts it, upon the supposition that it is drawn on the partnership account, and the proceeds of the bill are remitted by the agent to the partnership account, and the discount allowed to him in his account with the partnership; an action cannot be maintained by the banker against the firm, either upon the bill or upon the general assumpsit. 15 East, 7.

34. Liability from adoption. A partner, not originally liable, cannot be charged by afterwards acknowledging himself responsible, or accepting bills drawn on the firm for the credit. 4 T. R. 720.

55. Fraudulent transactions. Where one of two partners sells partnership property, without his companion's authority, and receives the price, the purchaser may, on discovering the fraud, sue the vendor for money had and received. 4 M. & S. 475. - Partners should join in an action for slander in the way of their trade.

36. Suits. 3 B. & P. 150.

37. Where a banking trade was carried on in name of father and son, held, that the father, by proving that the son had no property in the banking fund, might sue alone for money overdrawn by a customer, but not otherwise. 14 East, 210.

38. One of two partners, without his companion's authority, sells partnership property, draws a bill upon the purchaser for the price, in name of the firm, and receives payment when due, which he applies to his own use. The property is not delivered to the purchaser, who, therefore, becomes entitled to recover back his money. Held, that he might recover it against the partner receiving it alone, without joining his companion. 4 M. & S. 475.

39. A surviving partner defendant must be sued as such, or the plaintiff will be nonsuited. 6 T. R. 363. 2 M. & S. 25.

40. The separate property of one partner who appears, is not distrainable to compel an appearance by the other. 4 Taunt. 299.

41. If on striking a balance, a sum be found due from one partner to the other, the latter may sue the former. 2 T. R. 478. 473.

42. One partner may sue the other for money received to his separate use, since there is no community of interest therein. 2 T.R. 476.

43. An action may be maintained by one partner against another, for the non-performance of an agreement as to the capital to be advanced for the formation of the partnership. 13 East, 7.

44. If two persons agree to share in profit or loss upon goods bought by one of them, upon their joint account, an action may be maintained by one against the other, for the payment of his share. 13 East, 7.

45. Dormant partner.-Where a copartner contracts avowedly in his individual capacity, though tacitly for his companions also, they cannot be joined as co-plaintiffs, for non-performance of the contract. 1 M. & S. 249. 2 Taunt. 324, 325.

46. A defendant may plead a secret partnership in abatement, though the plaintiff had no means of knowing of the partnership, and could not have proved it, had he joined the secret partner in the action. 1 Mars. 246. 5 Taunt. 609. Denied by Lord Ellenborough.

47. Survivorship. On the death of one partner, the legal right to money due to

the

the partnership wholly survives to the other. If, therefore, it be paid over by the debtor to a third person, the surviving partner may sue the payee for money had and received without declaring as survivor. 2 T. R. 476.

48. Set-off. A defendant may set off a debt due to him as surviving partner, against a demand in his own right. 5 T. R. 493.

49. Since a debt due to the plaintiff as surviving partner, is due from himself alone, it may be set off against a demand in his sole right. 6 T. R. 582.

50. Dissolution. After the dissolution of a partnership by agreement, one of the persons who composed the firm cannot put the partnership name on any negotiable security, notwithstanding such partner may have had authority to settle the partnership affairs. Nor can any equity arise against them out of the transaction. 1 H. B. 155. 51. Notwithstanding a dissolution of partnership, the authority of each partner to bind the firm by his admissions, in matters which originated during the partnership, is the same as before. 1 Taunt. 104.

52. On a dissolution of partnership between A. and B., an assignment of the effects to A. and the taking upon himself payment of the debts, does not discharge B.'s liability for money formerly held by A. as trustee for C., and applied by him, with B.'s consent, in the partnership trade. 5 T. R. 601.

53. Miscellaneous. One of several partners in a contract, receiving goods from another partner, for the purpose of performing the contract, cannot pledge them to pay a debt from that other to himself. 4 Taunt. 684.

54. SECONDLY, IN EQUITY.- Who are partners.— A testator entitled by leases of unequal duration to iron mines and works, by will gave a pecuniary legacy to B., as a capital for him to become a partner with my executor, of one-fourth share in the trade of all those works as long as the lease endures;" and gave all the residue of his real and personal estates to H. and his wife, and appointed H. executor. By a codicil he gave to C. three-eighths of the concern at this iron work, and of the premises at C.; "so the partnership will stand at my demise, C. three-eighths, H. three-eighths, B. twoeighths." C., H., and B., jointly carried on the works for two years after the testator's death, selling iron manufactured by them not only from ore procured from the testator's mines, but from ore and old wrought iron which they purchased, but not merely for the purpose of mixing with the produce of the testator's mines for improving the iron. C., at the end of the two years, purchased B.'s share, and the business was carried on in the same manner by C. and H. till H. died. There was no written or other agreement for the duration of the partnership. Held, that this was not a mere joint interest in the produce of land, but a trading partnership; that it was dissolved by the death of H., and that the fact of C. and H. having purchased and taken assignments to a trustee for themselves, of some of the rents reserved by the leases, did not furnish any inference of an agreement to continue the partnership for any definite period; and a sale of the property was ordered on motion. Semble, too, that this was a trading within the bankrupt laws. 1 W. C. C. 181.

55. Distinction as to partners with reference to third persons, and as between themselves. — Partner as to third persons by a specific interest in the profits, as such; not by receiving a sum of money, even in proportion to a given share of the profits. 17 Ves. jun. 403.

56. Partnership by agreement for a participation in profits or their application. 18 Ves. 300.

57. Partner, without participation of profit, by lending his name, though contracting that he shall suffer no loss. 18 Ves. jun. 301.

58. Partner by a share in profits without interest in capital. 19 Ves. 291. 59. Partnership by a public declaration in an advertisement of dissolution. & Beam. 125.

3 Ves.

60. What associations are legal. —As to the legality of a partnership of 1600 shares, (see statute 6 Geo. 1. c. 18. s. 18.) and, if legal, the capacity of some to sue for a dissolution on behalf of the rest, and as to the necessity of an offer of contribution to losses, &c. Quære. 1 Ves. & Beam. 154.

61. Influence of the lex mercatoria upon partnerships.· The common law only partially adopts the lex mercatoria in respect of partnerships in trade, holding that there is no survivorship in respect of interest in such partnership, but that in respect of partnership contracts, the obligation is joint, and attaches exclusively on the survivors. Relief in equity upon joint bonds given on the ground of mistake. 1 Mer. 563.

62. Duration of partnerships. — A testator entitled by leases of unequal duration to iron mines and works, by will gave a pecuniary legacy to B. " as a capital for him to become a partner with my executor, of one fourth share in the trade of all those works, as long as the lease endures;" and gave all the residue of his real and personal estates to H. and his wife, and appointed H. executor. By a codicil he gave to C. three-eighths of the concern at this iron-work and of the premises at C.; "so the part

nership