been decided by the Court of Exchequer (a), that if two persons enter into the wine trade, intending originally that both should reside upon the premises, and one of them afterwards removes to a separate dwelling, leaving the other in the possession of the premises, and in the management of the whole business, the latter, on taking the account, is not entitled to be reimbursed usual and necessary expenses he may have incurred in treating the customers, where balances have been struck yearly, and no demand in respect of them has been made. To justify such an allowance to the acting partner, it ought either to be sanctioned by an universal custom in the trade, or should be made matter of express stipulation between the parties themselves; by the articles of copartnership, if, in the first instance, it be intended that the active management should devolve upon a single partner; or, if that be not so, and circumstances effect a change in their original intention, by some subsequent agreement. But, in the taking of an account, interest will be charged upon money borrowed by one partner of the firm upon his promissory note, though the borrower had a greater sum in the joint stock than the amount of the loan; for the stock is only to be employed in augmentation of the trade for the mutual benefit of all, and not for the private advantage of individual partners (b). In general, a partner, who, in his answer to a bill filed for an account of partnership transactions, insists that the balance of the account is in his favour, is not obliged to bring into court what is in his hands, unless the other partners do the same; but, if he have received money under circumstances from which it can be inferred that he had agreed not to receive it, he will then be ordered to bring it into court, however large the balance due to him may happen to be, because his conduct is not compatible with good faith (c).

(a) Thornton v. Proctor, 1 Anstr. 94. (b) Beecher v. Guilburn, Moseley, 3. (c) Foster v. Donald, 1 Jacob and Walk. 252.

Where one partner discharges a partnership debt out of his own individual funds, equity will enforce a contribution (a). Formerly, contribution was always obtained through the medium of a bill in equity, although, the right to the satisfaction being positive, actions at law between partners for a contribution have latterly become frequent (b). This concurrent exercise of jurisdiction does not, however, oust courts of equity of the power they originally possessed of entertaining cognizance of such subjects, since the fact, that courts of law have assumed jurisdiction, can afford no reason why the equitable authority should not be maintained. In some cases, as if there were ten persons severally bound to contribute, the equitable relief would be more readily obtained, and at a less expense than any legal redress; for in a court of equity all the persons from whom contribution is claimed might be comprehended in a single suit; whereas, at law, a separate action must be brought against each for his proportion (c). And if one of the parties jointly bound be insolvent, contribution for his share cannot at law be recovered against the others, but it is the subject matter of a proceeding in equity only; for the legal remedy is founded upon the principle, that one pays that to which all are liable (d).

A court of equity will likewise interfere to protect a party upon whom a fraud has been practised; and where a premium has been fraudulently obtained from a person as a consideration for entering into a partnership, it will order the premium to be returned, treating the articles of partnership as a nullity, in consequence of the fraud (e). Thus, where A., an attorney, prevailed on B. to become a partner with

(c) Id. Ibid.

(a) Wright v. Hunter, 5 Ves. 792. Abbot v. Smith, 2 Blackst. 947. Deering v. Lord Winchelsea, 2 Bos. and Pul. 270. (b) Wright v. Hunter, supra, S. C. 1 East, 20. (d) Per Holroyd, J., in Collins v. Prosser, 1 B. and C. 688. See also Cowell v. Edwards, 2 Bos. and Pul. 268. Ex parte Hunter, Buck, 552. Ex parte Smith, Ibid. 492. Madox v. Jackson, 3 Atk. 406. Cockburn v. Thompson, 16 Ves. 326. Sainstry v. Grammer, 2 Eq. Ca. Abr. 165. (c) Per Lord Eldon, Tattersall v. Groote, 2 Bos. and Pul. 131.

pl. 6.

him, and B. paid a premium; but, before fourteen months had expired, A. sued out a commission of bankruptcy against B., and thus dissolved the partnership: this was held to be a fraud upon B., and A. was decreed to return part of the premium which had been paid, and to deliver up a bond given to secure the remainder; but an allowance was directed to be made in respect of the time the partnership subsisted (a). So, where, on the retirement of one of two partners from trade, it was left to arbitrators to determine, amongst other things, what was to be paid to the retiring partner for the goodwill of the trade; and they, on an understanding that the retiring partner would not set up the trade in the same street, or its vicinity, awarded a certain sum as the share of the retiring partner for the goodwill, which was paid; but no restraint being expressly placed upon him in that respect by the award, he afterwards set up the trade contiguously to his former partner: the Court of Chancery, on parol evidence of the understanding on which the award was made, enjoined him, on the ground of fraud, from carrying on the trade in the place in which he had established himself (b). Another head of fraud, which a court of equity will not sanction or permit, is that of one partner unduly pledging the partnership firm in discharge of his own individual debt, or in a transaction wholly unconnected with the common interest of all the partners (c). Thus, if one partner make the partnership liable for his separate debt, and his executrix confess judgment, a court of equity will restrain proceedings under the judgment (d). It will also restrain one partner from using the name of both in an improper manner, as from accepting or negotiating bills of exchange for or in the name of the partnership, unless the same be accepted or ne

(a) Hamil v. Stokes, 1 Daniell, 20. S. C. 4 Price, 166. And see Akhurst v. Jackson, Swanst. 89. Ex parte Broome, 1 Rose, 71. (by Harrison v. Gardner, 2 Madd. 198. See also Williams v. Williams, 2 Swanst, 253. (c) Ex parte Agace, 2 Cox, $16. (d) Anon. Ca. in Ch. 38. S. C. 16 Vin. Abr. 242.

gotiated for the purpose of the partnership (a). And in a case (b) where a partner, under a parol agreement for a partnership, filed a bill against his copartner, charging him with misconduct and praying a dissolution, account, and injunction against executing securities in the name of the firm; the defendant demurred, upon the ground, that as the partnership existed only by the fact of the partners' acting together, the prayer that the court would do what they had a right to do themselves was nugatory; but the court overruled the demurrer, because of the mischief which the defendant might effect by using the partnership name, and receiving the partnership debts, without accounting for them.

The Court of Chancery will also entertain a bill for the specific performance of an agreement for a partnership. In a case which came before Lord Hardwicke (c), his lordship is represented to have said, that if two partners enter into an agreement to carry on a trade together, and it be specified in the agreement that articles shall be drawn up pursuant to it, and before they are prepared the agreement is abandoned by one of the partners, upon a bill brought by the other for a specific performance, it ought to be decreed, notwithstanding the agreement was in relation to a chattel interest (d). However, to entitle the complainant in such a case to a specific performance, it seems generally to be essential that the partnership contract should be of some definite duration; for, if it be in the power of the defendant to render the decree abortive by an immediate dissolution of the partnership, the court will not interfere. For instance, if three persons engage in partnership for seven years, with a covenant, that if either of them, after the expiration of that term, continue to carry on the trade, either alone, or in partnership with any other person, until one or more of the par

(a) Williams v. Bingley, 2 Vern. 278, n. (c) Buxton v. Lister, 3 Atk. 383.

(b) Master v. Kirton, 3 Ves. 74. (d) See also Anon. 2 Ves. sen. 629.

ties shall have a legitimate or illegitimate son, who attains the age of sixteen, and whom the father, by writing or by will, desires to have introduced into the business, the party continuing the trade shall take such son apprentice for five years, and, when he attains twenty-one, shall admit him as a partner, but not until twenty years after the date of the agreement; a court of equity, it has been determined, will not compel a performance of such agreement upon a bill filed by an illegitimate child to be admitted an apprentice, in pursuance of an appointment by his father; because, were a specific performance of the agreement decreed, the partnership would be dissoluble instanter at the will of either party (a). As a general proposition, however, this distinction between the definite and indefinite limitation, in point of endurance, of a partnership contract, must be received, it is presumed, not without qualification. In many such cases, though the partnership could be immediately dissolved, the formance of the agreement (like the execution of a lease after the expiration of the term) (b) might be important, as investing the party with the legal rights for which he contracted. Where the specific performance of such an agreement is decreed, the court will not direct an account of the profits of the trade from the time the party ought to have been admitted, for that would, in effect, be awarding damages for not admitting him earlier; and whatever he was entitled to in that respect the plaintiff might have recovered, if he had availed himself of his legal remedy (c).

per

Courts of equity will likewise interfere where a

(a) Hercy v. Birch, 9 Ves. 357. In the late cases of Vansandau v. Moore, and Kinder v. Taylor, Lord Eldon repeatedly stated the settled doctrine of the court to be, that a specific performance of a contract for a partnership would be decreed, provided the partnership were to continue for a certain time, but that the court would not assist in executing the contract, if the partnership could be dissolved at a moment's notice.

(b) Nesbitt v. Meyer, 1 Swanst. 226. dington v. Hallet, 1 Ves. sen. 497.

See Downham v. Mathews, cited in Dod(c) Anon. 2 Vcs. sen. 629.