damages only, which, however, entitle the plaintiff to full costs. Tenant for years erected a nusance', and afterwards made an under-lease to I. S. The question was, whether, after a recovery against the first tenant for years for the erection, an action would lie against him for the continuance, after he had made an under-lease? Et per cur. it lies; for he transferred it with the original wrong, and his demise affirms the continuance of it: he hath also rent as a consideration for the continuance, and therefore ought to answer the damage it occasions. Vide Wm. Jones, 272. Receipt of rent is upholding. Cro. Jac. 373. 555. The action lies against either at the plaintiff's election. Case lies against the landlord of a house demised by lease, who, under his contract with his tenants employs workmen to repair the house, for a nusance in the house occasioned by the negligence of his workmen', III. Evidence, &c. THE plaintiff must be prepared to prove his possession of the land, house, &c. affected by the nusance, and the continuance or erection of the nusance by the defendant, as the circumstances of the case may require, and also the injury thereby sustained. Where the plaintiff complains of an injury to an easement', it will be incumbent on him (unless he can shew an express grant) to carry his evidence of the condition of the land, &c. and the enjoyment of the right, as far back as pos sible, in order to raise a presumption of right by grant or prescription. This action being local in its nature, the nusance must be proved to have been committed in the county where the venue is laid". But it is not necessary that the gravamen should be described with any local certainty. It is suffi cient if the declaration point out the gravamen with certainty enough to enable the defendant to have notice of it. r Rosewell v. Prior, Salk. 460. Warrel v. Webb, 1 Taunt, R. 379. Mersey and Irwell Navigation v. The general issue to an action for a nusance is, not guilty, under which every thing that shews that the defendant did what he lawfully might do, may be given in evidence (9). Hence the defendant may prove that the plaintiff gave him leave to do the act which occasioned the nusance, and that it was done under that permission; for a licence executed is not countermandable, y Winter v. Brockwell, 8 East, 308. (9) "Evidence upon the general issue has of late been allowed in many cases, which in former times would not have been admitted." Per King, C. J. Anon. C. B. E. 4 Geo. 1. Comyns' R. 274. CHAP. XXXI, PARTNERS. I. What is necessary to constitute a Partnership. II. How far the Acts of one Partner are binding on his Co-partners. III. Of Actions by and against Partners, IV. Evidence. I. What is necessary to constitute a Partnership. In order to constitute a complete partnership, as well between the parties as in respect to strangers who may deal with them, a communion or participation of profits and loss is essential. The shares of the parties must be joint, though it is not necessary that they should be equal. If the parties be jointly concerned in the purchase, they must also be jointly concerned in the future sale, otherwise they are not partners. A. for himself and his two partners (who were general merchants), B. for himself and partner (who were oil merchants), C. for himself and son (who were also oil merchants), agreed to purchase jointly as much oil as they could procure, on a prospect that the price of that commodity would rise. A. was to be the ostensible buyer, and the others were to share in his purchase, at the same price which he might give. A. and Co. were to have a half, B. and Co. a quarter, and C. and Co. the remaining quarter. In pur suance of this agreement A. and Co. ordered a broker to buy quantities of oil. The broker accordingly bought several ship loads, and among the rest a ship load from the plaintiffs. To some of the vendors, (not plaintiff's in this action,) B. and Co, and C. and Co., during the treaty, declared it to be a com a Coope and others v. Eyre and others, 1 H. Bl. 37, mon concern between them and A. and Co.; but, with respect to the plaintiffs, the purchase was made in the name of A. and Co. only, without any notice that the other defendants had any concern in it. The majority of the court, viz. Heath, J., Gould, J., and Lord Loughborough, C. J. were of opinion that B. and Co. and C. and Co. were not to be considered as partners with A. and Co., on the ground that there was no communion of profit and loss. Each party was to have a distinct share of the whole; the one to have no interference with the share of the other, but each to manage his share as he judged best. The profit or loss of the one might be more or less than that of the other. This was a sub-contract, by which was to be understood a contract subordinate to another contract, made or intended to be made, between the contracting parties on one part, or some of them, and a stranger. A. and Co. were the only pur chasers known to the plaintiffs; entire credit was given to them alone. The contracts made with the other merchants were not admissible evidence in this cause, except to prove a fraud, if the facts had gone that length; namely, that the house of A. and Co. as a failing house, was to stand forward in order to protect the other defendants, who, by such means, might have the benefit of the speculation, if it proved fortunate, without sustaining any loss in the event of its failing. No such evidence had been adduced; on the contrary, it appeared, that the objection made by the other vendors to the firm of A. and Co. was, "that they were unknown and new in the trade." Wilson, J, differed in opinion from the rest of the court, observing, that although the contract was actually made between the plaintiffs and A. and Co., yet if the other defendants were jointly concerned in it, they ought to be responsible, as much as if they had personally contracted; that they were so concerned, sufficiently appeared from the contracts with the other merchants, and their own declarations; these he thought were proper to be given in evidence, being against themselves. A father established in business, on his son's coming of age, told him, he should have a share in it, and held him out to the world as his partner: the son acted as such for several years, but the particular share which the son was to have was not settled; it was holden, that as there was a partnership as between the parties and the rest of the world, the presumption of law was, that they were partners inter se. That this presumption not having been repelled, the son, though not entitled to a moiety, was entitled to a share b. Peacock v. Peacock, & Camp. N. P. C. 45. of profits; but it was left to the jury to consider what was a fair and just proportion for the father to give, and the son to expect: the jury found that the son was entitled to a fourth part of the profits. In respect of creditors, he who takes a moiety of all the profits indefinitely, shall, by operation of law, be made liable to losses, if losses arise; upon the principle, that by taking a part of the profits, he takes from the creditors a part of that fund which is the proper security to them for the payment of their debts. 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 answerable for each other's losses. It was holden, that although, with respect to each other, these persons 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. The distinction taken in the preceding case as to an agreement not constituting a partnership as between the parties, themselves, though it may have that effect, quoad third parties, was recognised in the following case: A. having neither money nor credit, offered to B. that if he would order with him certain goods to be shipped upon an adventure, if any profit should arise from them, B. should have half for his trouble B. having lent his credit on this contract, and ordered the goods on their joint account, which were furnished accordingly, and afterwards paid for by B. alone; it was holden, that B. was entitled to recover back, such payment in assumpsit against A., who had not accounted to him for theprofits; such contract not constituting a partnership as between themselves, but only an agreement for a compensation for trouble and credit, though B. were liable as a partner to third person's creditors. A. B. and C. the proprietors of a stage-coach dividing the general profits of the concern, agreed that they should each work the coach a stage with horses, their separate property, and maintained respectively at their separate expense; it was holden, that B. and C. were not jointly liable as co-part c Waugh v. Carver, 2 H. Bl. 235. e Barton v. Hanson and others, 2 Taunt. 49.. VOL. II. D D |