order to their being rendered common, an express power or authority is required from the lord or proprietor, or the creditor, L. 6. [207] tit. 10. p. 5. [L. 6. tit. 10. P. 5.]

From the second axiom it is inferred, 1st, That the distribution or partition of losses and gains may depend upon the will of the partners, provided it be proportioned to the capital or labor of the partners, L. 4. tit. 10. P. 5. [L. 4. tit. 10. P. 5.] 2d, That the partnership called leonine is not valid, by which one partner is deprived of all gain, and charged with all loss,3 L. 4. tit 10. P. 5. [L. 4. tit. 10. P. 5.] 3d, That if the contracting parties do not determine the gains or losses, they shall be equal; and if the gains are determined, and not the losses, the latter shall be proportioned to the former, and vice versa, L. 3. tit. 10. P. 5. [L. 3. tit. 10. P. 5.] That the injuries arising from the fault of any particular partner are chargeable entirely to him, L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.] 5th, That if the determination of these gains or losses be left to the decision of a third person, provided such decision be not conformable to the said rules, it ought to be reformed by experienced persons, L. 5. tit. 10. P. 5. [L. 5. tit. 10. P. 5.] 6th, That in particular or limited partnership, as regards gain or loss, only the things specified enter into communion, L. 7. tit. 10. P. 5. [L. 7. tit. 10. P. 5.]

To the third axiom appertains, 1st, That one partner cannot exact more care from the other than what he bestows on his own property or affairs, L. 7. tit. 10. P. 5.6 [L. 7. tit. 10. P. 5.] 2d, That this good faith and care ought to accompany all the affairs of the co-partnership, so that the prejudice or loss caused in one firm or branch of commerce by the fault of one of the partners cannot be compensated or set off by the gain which he should make for them in another, L.

Palacios here observes, that the partnership in which it is agreed, that one partner shall bear the whole loss, may be valid; and that this is laid down in L. 4. tit. 10. P. 5. which says, ó se fazen pleyto que perdiesen en la compania en aquellas cosas que usan, que non oviese parte en la perdida; tales pleytos como estos valen é deben ser guardados. Such, he adds, would be the case, where one partner should contribute a thousand dollars capital, and the other partner his labor; with the agreement, that if they lost, the capital so contributed should be lost by the former. Quære, however, if the loss should extend beyond the amount of the thousand dollars contributed by the one partner, would not each partner be liable to his moiety or proportion of such excess or loss? The learned Professor con cludes by stating, that a partnership is therefore termed leonine, when it has been agreed that one partner may have all the gain, and bear no share in the loss, or that all the loss should be his and he should be entitled to no part of the gain, and that this is not valid. It may be observed, that the epithet leonine, is taken from the division made by the lion in the fable.

Proportionably, it is presumed, to the goods, &c., brought into the stock. This observation, it is found, is confirmed by Palacios, who says that what is above stated, is implied or understood in the text.

5 But a partner was obliged to observe only the same ordinary care and diligence in the affairs of the partnership which he observed in keeping his own private property, and proof of this being done, would absolve him from the entire or particular loss. Vide L. 7. tit. 10. P. 5., quoted in the text.

• Vide note 5, ante.

7 This is brought more within the meaning of the law 13, tit. 10. P, 5. cited in the text, than given as the literal translation of the text. See this law, and Greg. Lop. Gl. 4. and 5, thereon.

13. tit. 10. P. 5. [L. 13. tit. 10. P. 5.] 3d, That the debts contracted and expenses incurred for the utility of the company, or of him who shall be commissioned in the service of the partners are to be common, L. 16. tit. 10. P. 5. [L. 16. tit. 10. P. 5.] 4th, That when any person is induced by the fraud of another to form a co-partnership, he is not bound to observe the contract after he discovers the fraud; nor to fulfil the covenant of not prosecuting the other on account of it, L. 5. tit. 10. P. 5. [L. 5. tit. 10. P. 5.] 5th, That if partition hath been made by one of the partners of gains fraudulently or improperly acquired, and for this reason he hath been obliged to restore them to the party injured, the partners shall be bound equally to restore the portion which they have respectively obtained in the partition, [208] if they were ignorant of the bad faith of their partner; but if they had knowledge of it, they shall be obliged to satisfy the party aggrieved in equal portions, L. 8. tit. 10. P. 5. [L. S. tit. 10. P. 5.] It being the duty of persons who form a partnership to act towards one another as brothers, L. 1. tit. 10. P. 5. [L. 1. tit. 10. P. 5.;] it follows, 1st, That on account of debt one partner cannot sue the other for more than he is able to pay, leaving him a sufficiency to subsist on if he has not wherewithal to obtain it, L. 15. tit. 10. P. 5. [L. 15. tit. 10. P. 5.] 2d, That if the administrator of the company' should give to any of the other partners their shares without notice to the rest, and the administrator should come to poverty or be insolvent, there shall be another partition made; and if the other partners were aware of it and did not demand in time their proportions, this collation shall not be formed, L. 15. tit. 10. P. 5. [L. 15. tit 10. P. 5.] 3d, That if any of the partners should take any thing belonging to the company without the knowledge of the rest, he cannot be prosecuted for theft, unless there should exist evident proofs of it, L. 17. tit. 10. P. 5. [L. 17. tit. 10. P. 5.]

§ 2. From these principles it is evident, 1st, That the copartnership is at end by the renunciation of any of the partners; and if this renunciation was made before the term agreed upon, or before the object or business was completed for which the partnership was formed, he is obliged to satisfy the others the damages and prejudices occasioned by reason thereof, L. 11. tit. 10. P. 5. [L. 11. tit. 10. P. 5.] This renunciation ought not to be fraudulent; for if it be proved such, all the profits from thenceforward become common among the other partners, and the losses appertain exclusively to the one who fraudulently renounced, L. 12. tit. 10. P. 5. [L. 12. tit. 10. P. 5.] 2d, That the partnership is also at an end by the natural or civil death of any of the partners, L. 10. tit. 10. P. 5. [L. 10. tit. 10. P. 5.] 3d, By a cession of property, L. 10. tit. 10. P. 5. 4th, By the destruction of

And this whether they have received any part of the gains or not. Vide the Law 8. tit. 10. P. 5. quoted in the text.

That is to say, one of the partners administering the affairs of the company. Vide the L. 15. tit. 10. P. 5. quoted in the text.

the thing which was the object of the contract, L. 10. tit. 10. P. 5. 5th, By reason of the bad temper or disposition of any of the partners, or the non-observance of the covenants or terms of the contract, 10 L. 14. tit. 10. P. 5. [L. 14. tit. 10. P. 5.] 6th, For the close or discharge of the accounts, the administrator is obliged to present to the company not only the cash book, but also the journal.-Escovar Muñoz de ratiociniis, cap. 10. á n. 39. al 41.

10 These two, says Palacios, are not modes of dissolving copartnership, but just causes for the renunciation or separation from it by him who suffers unjustly.

VOL. I.-29

TITLE XVI.

OF EXCHANGE OR PERMUTATION.

[209] CAP. 1. THE fourth onerous contract is that of exchange or permutation. Exchange is to give and deliver a specific or particular thing for another, L. 1. tit. 6. P. 5. [L. 1. tit. 6. P. 5.] To exchange it is not necessary for the things exchanged to be present, nor that the consent of the parties be expressed by word; for the act of receiving the thing by one of the persons bartering will be sufficient,' L. 1. tit. 6. P. 5. [L. 1. tit. 6. P. 5.]

This contract bears a total resemblance to that of purchase and sale, L. 2. tit. 6. P. 5. [L. 2. tit. 6. P. 5.] Under this principle we establish, 1st, That no one can exchange who cannot sell and buy, L. 2. tit. 6. P. 5. [L. 2. tit. 6. P. 5.] 2d, That only that can be exchanged which is capable of being purchased, except spiritual things, which, although they cannot be sold, may be exchanged with the permission of the prelate who has jurisdiction over them, L. 2 tit. 6. P. 5. [L. 2. tit. 6. P. 5.] 3d, That when once this contract is perfected by consent, it must be fulfilled, or the interest or damages (intereses) paid to the party suffering by him who repents or refuses,'

Palacios says, that L. 1. tit. 6. P. 5. does not specify any exchange which may not be made by parol. That, by the law, three modes of making an exchange are referred to; and in the third, to which, it appears, the text refers, it thus declares:-" When an exchange is made by parol, which is afterwards fulfilled by the act of both, or one of the parties." Nor can it be said, that by the mere receipt of the thing by one of the parties, without having manifested an intention of making this contract, does an exchange take place.

2 Quare. Vide the difference noticed by Brown, 1st vol. book 2. c. 11. p. 371. Wood's Inst. C. L. p. 235. By the civil law, exchange was not perfected by bare consent. Actual permutation must take place before the contract was perfect; for from an agreement to exchange, no action arose, (but vide L. 1. tit. 1. lib 10. Nov. Rec.) nor could the risk be transferred from one to another before actual permutation.

3 Palacios says, it is to be observed, that the property of another person can be bought, and the purchase will be valid to various effects, L. 28. de contr. empt. Ll. 51. and 53. tit. 5. P. 5. and which cannot be exchanged, nor would the exchange be valid, L. 1. tit. 6. P. 5. Cur. Philip. com. ter. Lib. 1. c. 12.

4 By other spiritnal persons, observes Palacios, but not by temporal or lay persons. 5 But this requisite, the same learned Professor also states, is not alone sufficient; for various are the others, besides this, which are necessary, in order that spiritual things may be exchanged; but he adds, that this belongs to the canonists, and refers to Murillo curs. jur. can. tit. de ver. permut. He further observes, that prebends and other ecclesiastical livings (piezas,) cannot be bartered without the royal permission, in virtue of the concordate with the court of Rome, the collation and canonical institution to them relating only to the ordinary diocesan. He quotes Febrero Reformado, tom. 1. P. 1. c. 17. n. 3. p. 392. 4th ed.

6 Quare. Vide note 2, ante; but also vide, L. 1. tit. 1. lib. 10. Nov. Rec.

7 Palacios confirms what has been observed in notes 2. and 6., which were made before the edition of the text by the learned Professor came under the notice of the translator. He states, that by the law of the Partidas, exchange was not perfected by consent alone,

L. 3. tit. 6. P. 5. [L. 3. tit. 6. P. 5.] 4th, That permutation is annulled and extinguished by the same modes and for the same reasons that purchase and sale are, the persons exchanging being bound to the warranty or security (evicción) of the things exchanged, L. 4. tit. 6. P. 5. [L. 4. tit. 6. P. 5.]

Cap. 2. Under these same general rules is found established in Spain the business or traffic termed colibistica, or the exchange of letters or bills, which is the permutation of moneys for the purpose of remitting money from one part or country to another, L. 4. tit. 18. lib. 5. Rec.10 Limiting our discourse to the subject of the exchange. of bills, it is evident by its nature, 1st, That for the perfection and fulfilment of this contract four persons intervene. He who draws the bill; he on whom it is drawn;12 he who delivers or pays the money for it, and he in whose favor it is drawn;13 although it is possible that these two last circumstances concur in one person.14 2d, That when ouce the bill is presented, by him to whom it is remitted, or by parol promise (por palabras). That when it was made by parol and promise, that is, by stipulation, he who repented, or became unwilling to fulfil the exchange, might be compelled to carry it into execution, or to pay to the other party the damages and prejudices which resulted to him by its non fulfilment. That when it was made by parol, or by nude pact, a distinction was made: if one party fulfilled his part, and the other refused to perform his, it was in the election of him who had fulfilled his agreement, either to recover back his thing or property, or to demand the damages and prejudices which resulted to him by reason thereof; but that if neither had delivered the thing agreed, either of them might freely repent, without being able to be forced to the fulfilment of the covenants, L. 3. tit. 6. P. 5.; but that since the passing of L. 1. tit. 1. lib. 10. Nov. Rec. the exchange cannot be repented of; and the party is bound to its fulfilment, in whatever way he may have manifested his intention to bind himself.

The translator cannot find an English word for Colibistica.

It is not easy to discover the affinity between the doctrine of the contract of exchange, and the doctrine of bills of exchange. The rules of the first arc traceable to the civil law, those of the latter are only referrible to the conveniences and refinements of modern commerce. Mr. Justice Blackstone, 2d vol. p. 467. gives credit to China for the introduction, in 1236. It is not a little curious, however, that Wood, in his C. L. p. 235. should have fallen upon the same plan as the text. He however admits, that though the contract of bills of exchange hath the name, it hath nothing of the nature of that under which it is mentioned.

10 Not inserted in the Nov. Rec. See Ll. 7. and 8. and note 4. tit. 3. lib. 9. Nov. Rec., which treats of bills of exchange.

The drawer.

14 Palacios mentions the following requisites to a bill of exchange. 1st, The date, place, day, month, and year in which the bill is drawn. 2d, The amount or sum for which given, expressed in figures at the head of the bill, and in letters or words in the body of it. 3d, The period at which it is drawn payable. 4th, The name of the person in whose favor it is drawn, who is called the payee (tomador). 5th, The person from whom the amount or consideration of the bill is received. This requisite might be well merged, it is conceived, in the 4th, the payee being generally the person who, or on whose behalf the consideration is paid for the bill. 6th, The signature of the drawer. 7th, The name of the person on whom it is drawn, and the place of his residence; i. e. the drawee. He further observes that when the sum expressed in the body of the bill does not correspond with that mentioned in figures at the head of it, regard must be had to the sum set forth in the body of the bill, unless by the letter of advice the contrary appear; and he adds, that when no time of payment is expressed in the bill, but it is simply directory to pay a certain sum, it ought to be understood as payable at sight, or on presentation of the bill. The last rule holds in England. See Chitty on Bills, p. 279. ed. 4.