Any partner can also transfer his share, under certain limitations; but no partner acts personally in the affairs of the company; the execution of their business being entrusted to officers, for whom the whole company are responsible, though the superintendency of such officers is frequently committed to directors, chosen from the body at large.

There are likewise trading companies established by public authority. The king, by his charter, may constitute fraternities or companies for the management of foreign or domestic trade (a). Since trade cannot be maintained and increased without order and government (b), therefore the king may erect gildam mercatoriam for the advantage of trade (c); and none but the king can erect a society for trade, or public trading company (d). But the king, by his charter, cannot make a total restraint of trade, for such a patent would be void (e).

A royal charter is necessary to enable a company to hold lands, to have a common seal, and enjoy the other privileges of a corporation; but a charter is sometimes procured merely to limit the risk of the partners; for, in every private unincorporated company, the members are liable for the debts without limitation (f): in incorporated societies, they are only liable to the extent of their shares in the stock of the society. Sometimes trading companies are authorised by act of parliament; but this high authority is only necessary to confer exclusive privileges, which, by the principles of the common law, cannot be granted by the king's charter (g).

Not any one of the public trading companies, incorporated by royal charter, or act of parliament, are to be considered as partnerships, within any of

(a) Com. Dig. Tit. Trade, B. Darcy v. Allen, cited in the city of London's case, 8 Rep. 125.

(b) Com. Dig. Tit. Trade, D.

(c) City of London's case, supra.

(d) East India Company v. Sandys, Skinn. 224. (e) Darcy v. Allen, supra. See also 3 Mod. 132. East India Company v. Evans, Vern. 307. (f) Rex v. Dodd, 9 East, 516.

(g) Kyd on Corporations, 1st vol. p. 61.

the legal principles applicable to partnerships formed by the voluntary agreement of individuals. For in such public companies, where a trade is to be carried on under the corporate name in joint stock (as in the case of the East India Company, &c.), the members, as such, are not objects of the bankrupt laws (a); and there are express provisions, that they are not to be liable, on account of the joint trade, in their individual capacities; nor one of them for the debts or engagements contracted by others; but only for their respective shares or interest in the joint stock, and that upon trade and contracts carried on or made in the corporate character. Therefore, if one or more persons enter into such a society, and become sharers of the property and joint stock, yet such an association does not constitute a partnership, according to the custom of merchants, nor within the principles of law established respecting joint traders.

To contract the relation of private, as it has been contradistinguished from public partnership, no charter or license is necessary; the bare consent of the parties being, for this purpose, sufficient. Such consent may be testified, either in express terms, as by articles of copartnership, or positive agreement; or the assent may be tacit, and to be implied solely from the acts and conduct of the parties (b). An implied, or presumptive assent, has equal operation with one that is express and determined. Thus, to constitute a partnership inter se, the existence of written articles is not essential, the mere act of trading jointly being sufficient for that purpose; and with respect to the world, it may be laid down

(a) 6 Geo. IV. c. 16. s. 2.

(6) Under the Romans, the social contract or partnership needed no other solemnity but the consent of parties, without any writing at all; and Barbeyrac, in his notes on Puffendorf, observes, that a partnership is contracted sometimes tacitly; where, for example, a thing being bought in common is not divided, but the parties interested, without explaining themselves farther, enjoy it equally, each sharing in the profit that arises, and contributing his own proportional part in the necessary expenses for its maintenance.

as an undeniable proposition, that persons having a mutual interest in the profits of any business, or particular branch of business, carried on by them, or persons appearing ostensibly as joint traders, are to be recognised and treated as partners, whatever may be the nature of the agreement under which they act, or whatever motive or inducement may prompt them to such an exhibition (a). But a joint possession has not, per se, the effect of converting the possessors into partners. A joint possession, or the holding something in common among many, does not necessarily imply the reciprocal choice of the parties; on the contrary, several may hold a thing in common, independently of their own original free election. Of this latter class are the joint donees or joint legatees of one and the same thing, or those who, through other causes, chance to hold something between them, which is not divided, and is to be possessed in common, without any mutual agreement. The free and personal choice of the parties is so essentially necessary to the constituting of a partnership, that even the executors and representatives of deceased partners themselves do not, in their representative capacity, succeed to the state and condition of partners (b), although a community of interest necessarily exists between them and the surviving partners, until the affairs of the partnership are wound up (c). And, on the same principle, one partner can in no instance, without the consent of his co-partners, introduce a stranger into the concern as a partner, although he may charge his own undivided interest to any extent he pleases in favour of that stranger (d).

The law of England permits only those mercantile associations which are sanctioned by justice and sound policy. It follows, therefore, that the object of every partnership must be the adventuring in some

(a) M'Iver v. Humble, 16 East, 174.

(b) Pearce v. Chamberlain, 2 Ves. sen. 34. (e) Ex parte Williams, 11 Ves. 3.

(d) Bray v. Fromont, 6 Madd, 5.

lawful trade or business. By the civil law it is well established, that no partnership can be contracted, except it have relation to fair trade or commerce, or some other thing that is honest and lawful: every partnership, formed on a basis at variance with such principles, being considered not only improper but unjust. Si maleficii societas coita sit, constat nullam esse societatem; generaliter enim traditur, rerum inhonestarum nullam esse societatem. Societas flagitiosæ rei nullas vires habet. Delictorum turpis atque fœda communio est. Nor, according to the laws of this country, is there any sound distinction to be made between an association, for the purpose of engaging in transactions which are mala in se, and those which are mala prohibita; the latter, as well as the former, tending to encourage a breach of the law, and it being equally unfit that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited because it is against good morals, or whether it be prohibited because it is against the interest of the state (a). Thus, a partnership for importing prohibited goods (b), or making time bargains in the funds, would be held illegal and invalid, not less than a partnership for keeping a disorderly house, or robbing on the highway. But if the object contemplated by persons associating themselves together as partners do not contravene either the law of nature, or the municipal law of the land, it will be valid, although it do not relate to trade. Partnerships are not necessarily confined to trades or commercial adventures. They may lawfully subsist in cases unconnected with mercantile speculations. For instance, a partnership may exist between attorneys or farmers, as well as between merchants or bankers (c). Nor does it follow, from the contraction of the relation of partners, that the persons contracting it

(a) Bensley v. Bignold, 5 B. & A. 341. Aubert v. Maze, 2 Bos. & Pul. 371. (b) Biggs v. Lawrence, 3 T. R. 454. Webb v. Brooke, 3 Taunt. 13. (c) Per Gould, J., Coope v. Eyre, 1 H. Bl. 37.

are indiscriminately united as general partners; for a partnership may be limited to a particular branch of business, without extending to all the concerns in which any member of the firm may chance to be engaged (a). Thus, two merchants may join in sending out a cargo of goods to a foreign country. As to this adventure, they have all the rights, and are subject to all the liabilities of partners; but the relation of co-partnership between them ceases with it, and at no time extends to any of their other concerns. So, several may be interested in a chattle, and agree to manage it at their mutual expense, and for their mutual profit; quoad hoc they are partners. In like manner if two persons, who are not partners in trade, draw a bill of exchange payable to themselves or their order, they are partners as to the transaction of the bill, but, in every other respect, they continue perfectly distinct (b). So if a number of persons associate together and subscribe sums of money for the purpose of obtaining a bill in parliament to make a railway, they are pro hac vice to be treated as partners (c).

When the object or purpose the partners have in view, in forming a partnership, is clearly and distinctly defined, and the contract of partnership does not expressly or impliedly confer upon some the power of binding all to the adoption of different projects, it is not competent to any number of the partners, short of the whole of them, to engage the partnership in adventures which are incompatible with the declared object or purpose; because, if it were so, an individual, by engaging in one specified concern, might be implicated in any other concern whatever, however different in its nature, against his consent. Each partner, therefore, has the power of insisting that the original contract of partnership shall not be contravened by an extension of

(a) Per Lord Mansfield, Willett v. Chambers, Cowp. 814. See also Robey v. Howard, 2 Stark. N. P. C. 557. (b) Carvick v. Vickery, Dougl. 653, n.

(c) Holmes v. Higgins, B. & C. 74.