as such. See Carr v. Jackson, 7 Exch. 382; 21 L. J., Ex. 137. So, if the principal for whom the agent professes to act does not at the time exist, the latter is liable. Kelner v. Baxter, L. R., 2 C. P. 174, cited post, p. 504.

Where the defendant A. gave authority to his wife B. to order goods from the plaintiff C., on which authority B. acted: A. was held liable for goods ordered by B. of C. after A. had become insane, C. having no notice of such insanity. Drew v. Nunn, 4 Q. B. D. 661, C. A.

Meat was supplied to the defendant during the lifetime of her husband, by his authority, for the support of her and her family: it was held that the defendant was not liable for the price of the meat so supplied, after the death of the husband on a distant voyage, before news of the death came to hand. Smout v. Ilbery, 10 M. & W. 1.

Delivery to partner.] For definitions of partnership, see Pooley v. Driver, 5 Ch. D. 458, 471, et seq. Each partner is presumably an agent for the rest, to bind them by simple contracts relating to the business of the firm. Therefore, goods delivered in pursuance of an order by one, are delivered to all, unless it appear that they were delivered on the exclusive credit of one only; but debiting one only, and taking the separate acceptance of that one, is not decisive of this. Bottomley v. Nuttall, 5 C. E., N. S. 122; 28 L. J., C. P. 110; Keay v. Fenwick, 1 C. P. D. 745, C. A. A question sometimes arises in such actions, whether all the defendants are liable as partners. Although the defendant cannot compel the joinder of a dormant partner as co-defendant, yet the dormant partner may, at the option of the plaintiff, be so joined. Lloyd v. Archbowle, 2 Taunt. 327; Ruppell v. Roberts, 4 Nev. & M. 31. And such a partner may be joined as defendant, though the contract, which was in writing (not under seal) and inter partes, did not name him. Drake v. Beckham, 11 M. & W. 315, Ex. Ch. Though a partnership is constituted by deed, it may be proved by parol evidence. An examined copy of an answer in Chancery by two of the defendants, to a bill of a third defendant, charging them as partners and praying for an account, is good evidence to prove the partnership as against the persons so answering. Studdy v. Sanders, 2 D. & Ry. 347. Proof that the defendants suffered their names to be used as partners will be sufficient. See 1 Smith's Lead. Cases, notes to Waugh v. Carver. If it can be proved that the defendant has held himself out to be a partner,-not "to the world," for that is a loose expression,-but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it, and believed him to be a partner, he is liable to the plaintiff, in all transactions in which the plaintiff gave credit to the defendant, upon the faith of his being such a partner. Per Parke, J., Dickinson v. Valpy, 10 B. & C. 140. Though parties are not really partners in trade, yet if one so represents himself, and thereby gets credit for goods for the other, both are liable. Per Ld. Kenyon, C. J., De Berkom v. Smith, 1 Esp. 29. Where the defendant, who was not a partner had held himself out as such, and statements had been made by one of the firm that the defendant was a partner, this will not make the defendant liable, as an ostensible partner, to plaintiffs who had not heard of the statements, nor supplied the goods on the faith of the defendant being a partner. Edmundson v. Thompson, 31 L. J., Ex. 207. If the name of a clerk be used in a firm with his own consent, he is liable to third persons as a partner, though he receives no part of the profits. Guidon v. Robson, 2 Camp. 304. So, where the defendant, having advanced money to a person who was getting up a mining company, on the security of 200 shares, permitted the captain of the mine to represent, without naming the defendant, that the mine was being worked by a person of substance, and

the plaintiff on the faith of these representations supplied goods, it was held that he could recover against the defendant as a partner in the mine. Martyn v. Gray, 14 C. B., N. S. 824.

Persons may be partners in a particular concern or business, yet, if they do not hold themselves out as general partners, it will not make them liable in other cases not connected with that business. De Berkom v. Smith, ante, p. 498. But as to that particular concern, they are partners so as to bind one another by contracts for carrying it out. Heyhoe v. Burge, 9 C. B. 431; 19 L. J., C. P. 243. Where the publisher, editor, and printer agree to share the profits of a periodical work equally, and the printer is to furnish paper at cost price, the stationer, who supplied the printer with paper, cannot sue either publisher or editor as partners. Wilson v. Whitehead, 10 M. & W. 503. If there is a stipulation between apparent partners, that one of them shall not participate in the profit and loss, and shall not be liable as a partner, he is not liable as such to those persons who have notice of the stipulation. Alderson v. Pope, 1 Camp. 404, n. The plaintiff must show that the

name of the defendant was used in the firm with his own consent. Newsome v. Coles, 2 Camp. 617; 2 H. Bl., 4th edit. 235, n. Where a person allows his name to remain in a firm, either exposed publicly over a shop door, or used in printed invoices or bills of parcels, or published in advertisements, this precludes him from disputing his liability as a partner. Per Tindal, C. J., Fox v. Clifton, 6 Bing. 794. If a firm, consisting of several, carry on business in the name of one of the partners, the whole firm will be bound by acts done by him as representing the firm; S. Carolina Bank v. Case, 8 B. & C. 427; Vere v. Ashby, 10 B. & C. 293, per Parke, J.; unless it be proved that the act was done by that partner, on his own behalf alone, and not on behalf of the firm. Yorkshire Banking Co. v. Beatson, 5 C. P. D. 109, C. A., ante, P. 332.

The liability of a person, as partner, whether called one or not, may also be proved by showing that he participated in the profits of the concern; and it is immaterial whether he receives the profits for his own use, or as a trustee for others. Thus the executors of a deceased partner, carrying on trade for the benefit of the estate, are liable personally as partners. Wightman v. Townroe, 1 M. & S. 412. However small the stipulated portion of profits, the participation renders the party liable to all the engagements of the partnership. R. v. Dodd, 9 East, 527. And this, whether the plaintiff knew or not, at the time of his dealing with the concern, that the person whom he charges as a partner participated in the profits. Ex pte. Gellar, 1 Rose, 297; Vere v. Ashby, supra; Edmunds v. Bushell, L. R., 1. Q. B. 97.

The participation, to render the party liable, must be in the profits as such. Therefore, a remuneration made to a traveller, or other agent, by a portion of the sums received by, or for his principal in lieu of a fixed salary, is only a mode of payment adapted to secure exertion, and does not render the agent a partner. Cheap v. Cramond, 4 B. & A. 670. So, a person employed as superintendent-engineer of another's steamship, at a yearly salary, and, in addition, a sum equivalent to 10 per cent. on the net profits, is not a partner. Harrington v. Churchward, 29 L. J., Ch. 521. So a person employed to sell goods, and who was to have for himself whatever he could procure for them above a stated sum, was held not to be a partner. Benjamin v. Porteus, 2 H. Bl. 590. So, in an agreement between the owner of a lighter and B., that B., in consideration of working the lighter, shall have half the gross earnings, is only a mode of paying wages, and not a partnership in the profits. Dry v. Boswell, 1 Camp. 329; Lyon v. Knowles, 3 B. & S. 556; 32 L. J., Q. B. 71; 5 B. & S. 756, Ex. Ch. So an agreement, that a sailor shall receive a certain share of the produce of the voyage in lieu of wages, does not make him a partner with the owners of the cargo. Wilkinson v. Fraser, 4 Esp.

182; Mair v. Glennie, 4 M. & S. 244. So, where a patentee grants an exclusive licence to work it to other persons, who engage to employ him as manager at a salary equal to 40 per cent. on the net proceeds of the business Stocker v. Brockelbank, 3 Mac. & G. 250; 20 L. J., Ch. 401. So, the receipt of a percentage on the gross amount of sales to persons recommended by A. does not make him a partner of the seller. Pott v. Eyton, 3 C. B. 32. But where a retiring proprietor of a newspaper guaranteed the purchaser of it a certain profit, stipulating for the surplus profit for a certain number of years in a certain event, he was held to be a partner. Barry v. Nesham, 3 C. B. 641. An agreement between two persons, that one shall make purchases of goods for the other, and in lieu of brokerage shall have one-third of the profits of the sales, and bear a certain proportion of the losses, would make him liable as a partner as to third persons. Per Holroyd, J., Smith v. Watson, 2 B. & C. 409. A distinction is recognised between receiving a share of the profits, which renders the person liable as partner, and relying on the profits as a fund for payment, which will not have that effect. See Grace v. Smith, 2 W. Bl. 998; Erpte. Humper, 17 Ves. 404; Lyon v. Knocles, ante, p. 499, 2 H. Bl., 4th ed. 236; and Molliro v. Court of Wards, infra.

The proof of partnership by a mere perception of the profits of a business has been much narrowed by recent decisions, and it is now settled that such perception may be shown, by the circumstances, not to give rise to a partnership. Two persons, who carried on business as iron-smelters, in partnership, compounded with their creditors by means of a composition deed, conveying the partnership property to trustees, to carry on the business under the name of a company, and to divide the net profits annually among the creditors of the partnership; it was held, that a creditor who had executed the deed, was not liable as a partner for debts contracted by the trustees in carrying on the trade. Cox v. Hickman, 9 C. B., N. S. 47; 8 H. L. C. 268; 30 L. J., C. P. 125. The proper test of liability, as a partner of a person not ostensibly a partner, is not merely whether the person sought to be charged has stipulated for participation in the profits, as such, but whether the person, by whom'the trade was actually carried on, carried it on as agent for the other. S. C.; In re English, &c. Assur. Society, 1 H. & M. 85; Kilshaw v. Jukes, 3 B. & S. 847; 32 L. J., Q. B. 217; Bullen v. Sharp, L. R., 1 C. P. 86, Ex. Ch.; Holme v. Hammond, Molliro v. Court of Wards, and Ex pte. Tennant, infra. See also on these cases, Pooley v. Driver, 5 Ch. D.

458.

Where, under the provisions of a partnership deed between A., B., and C., the defendants, the executors of a deceased partner, A., after his death took the share in the business to which A. would have been entitled, if living, but did not interfere therein; it was held that they were not liable to third persons on contracts made with B. and C. after A.'s death. Holme v. Hammond, L. R., 7 Ex. 218. So, where a firm being indebted to a Rajah, it was agreed that the business of the firm should be carried on, subject to his control, that he should receive 20 per cent. commission on all profits made by the firm, till the debt due should be paid, and 12 per cent. interest on cash advances made by him to the firm; and he was accordingly afterwards credited with proceeds of the business in the books of the firm, though he never received the same, nor did he hold himself out as an ostensible partner in the firm; it was held that the primary object of the agreement, being a security to the Rajah for the debt and advances, and there being no intention of creating a partnership between the parties, the Rajah was not liable to third persons on contracts made by the firm. Mollo v. Court of Wards, L. R., 4P. C. 419; accord. Ex pte. Tennant, 6 Ch. D. 303, C. A.

By Bovill's Act (28 & 29 Vict. c. 86), s. 1, the advance of money by way of loan upon a contract in writing that the lender shall receive interest vary

ing with the profits or the business of the borrower, or a share of the profits, is not of itself to make the lender a partner, or make him responsible as such. By sect. 2, a contract for remuneration of a servant or agent by a share in the profits of the employer's business, is not, of itself, to make the servant or agent responsible as a partner, nor give him the rights of a partner. By sect. 3, the widow or child of the deceased partner of a trader, receiving as an annuity, a portion of the profits of the business is not, by reason only of such receipt, to be deemed a partner of, or subject to liabilities incurred by such trader. And by sect. 4, a person selling the good-will of the business, and receiving in return, by way of annuity or otherwise, a portion of the profits, is not, by reason only, of such receipt to be deemed a partner, nor subject to the liabilities of the person carrying on the business.

It seems very doubtful if this statute has produced any alteration in the law as settled by the above recent cases. See Holme v. Hammond, ante, p. 500; Pooley v. Driver, 5 Ch. D. 458, 483. The only effect that can be suggested for the statute to have is, that as regards the protected classes, the sharing in profits shall be no evidence at all of a contract of partnership, whereas with regard to others it is evidence, though insufficient of itself to establish the liability. Holme v. Hammond, L. R., 7 Ex. 227, per Kelly, C. B.

An unsigned contract is not within sect. 1. Pooley v. Driver, supra. The advance must be by way of loan; S. C.; Ex pte. Delhasse, 7 Ch. D. 511, C. A.; Syers v. Syers, 1 Ap. Ca. 174, D. P. ; and it must appear to be so, on the face of the contract. S. C. Where from the agreement it appears that the nominal lender is a partner, a declaration that the loan is made under the act, and that the lender shall not be a partner, will not prevent his being a partner. Ex pte. Delhasse, supra. The act applies only to a loan on the personal responsibility of the trader to whom it is made, and not to a loan made on the security of his business. S. C. See also on this statute, Ex pte. Mills, L. R., 8 Ch. 569; Ex pte. Taylor, 12 Ch. D. 366, C. A.

A partner is not liable on a contract made before he became such; as, for goods delivered after he became partner on an order given before. Beale v. Mouls, 10 Q. B. 976; Battley v. Lewis, 1 M. & Gr. 155. And this is the rule, though the partnership may have been made retrospective by agreement between the new and old partners. Vere v. Ashby, 10 B. & C. 288.

With reference to liability for the price of goods, ordered by a firm after the retirement of a partner, "the law stands thus if there had been a notorious partnership, but no notice had been given of the dissolution thereof, the defendant would have been liable. If there had been a general notice, that would have been sufficient for all but actual customers; these, however, must have had some kind of actual notice. If the partnership had remained profoundly secret, the defendant could not have been affected by transactions which took place after he had retired; but if the partnership had become known to any person or persons, he would be in the same situation as to all such persons as if the existence of the partnership had been notorious." Farrar v. Deflinne, 1 Car. & K. 580, per Cresswell, J. The rule as to dormant partners is laid down to the same effect in Carter v. Whalley, 1 B. & Ad. 11. If a partner retires from a firm which has dealings with a banking company formed under 7 Geo. 4, c. 46, the fact that a shareholder in the bank, who is also a director of it (but not a manager), happens to be one of the firm, is not constructive notice of the dissolution of partnership so as to protect the retired partner from future liability to the bank. Powles v. Page, 3 C. B. 16.

Of two partners A. and B., A. retired, and B. carried on business with C. as partner under the same style; a customer of the old firm who sold goods

to the new firm after the change of partners, but without notice of it, is put to his election, whether he will sue A. and B. for the price, on a liability by estoppel, or B. and C. on a liability in fact. Scarf v. Jardine, 7 Ap. Ca. 345, D. P. If after notice of A.'s retirement he sue B. and C., or prove in their liquidation, he cannot afterwards sue A. S. C.

If a creditor, knowing of a dissolution of partnership, transfers his account from the old to the new firm, and continues to deal with the new firm, this is evidence of accepting that firm as his debtors, and will release a retiring partner. Hart v. Alexander, 2 M. & W. 484; Rolfe v. Flower, L. R., 1 P. C. 27. So where the creditor receives interest from the new firm on the debt due from the old. Bilborough v. Holmes, 5 Ch. D. 255. See also Kirwan v. Kirwan, 2 Cr. & M. 617; Ex pte. Gibson, L. R., 4 Ch. 662.

The authority of a partner to bind the firm being that of a presumed agency, a question may arise how far this agency can be determined, or excluded, by timely notice to the vendor or other creditor, from another member of the firm, disclaiming the act or order of his partner. The general question as to the effect of such notice has not, it is believed, been settled. It has, however, been said that mere notice to, or knowledge of, the creditor of any arrangement between the partners respecting the non-liability, or the restricted liability of any of them, will not affect the creditor's right to hold all, or any, of the partners liable, though the notice was before the contract. Ex pte. Greenwood, 3 D. M. & G. 459; 23 L. J., Ch. 966. But it has been repeatedly ruled, so far as relates to the power of binding a firm by negotiable securities, that a partner is not liable after notice to the person taking the security. Gallway, Ld. v. Mathew, 10 East, 264; Rooth v. Quin, 7 Price, 193; and see generally Story on Partnership, sect. 123; 3 Kent's Com. pp. 44, 45, and the cases cited, ante, p. 331, et seq. In cases where the majority can bind the rest of the partnership, it is questionable whether such notice or disclaimer can have any operation at all. See Story and Kent, ubi

supra.

A creditor of a partnership may prove his debt against the estate of a deceased partner; or, as it is sometimes expressed, the debt is several as well as joint during the lifetime of the partners it is, however, joint only, and a judgment recovered against one partner bars the remedy against the others. Kendall v. Hamilton, 3 C. P. D. 403, C. A. ; 4 Ap. Ca. 504, D. P.

Delivery to an unincorporated mining company.] Working mines is a species of trade, and has some of the qualities of an ordinary partnership. Mines within the stannaries of Devon and Cornwall are often worked by unincorporated partnerships, with transferable shares, on what is termed the "cost-book" principle. Vide ante, pp. 80, 255.

The shareholders in an ordinary mining company, conducted by managers or other agents, are personally liable on the contracts made for the supply of the mines, where such contracts are necessary or usual, or where the defendants can be shown to have authorised the contracts. Tredwen v. Bourne, 6 M. & W. 461; Steigenberger v. Carr, 3 M. & Gr. 191. And such shareholders are for this purpose partners, and therefore liable on all usual contracts for goods supplied, &c., made by their agents, though there may be an agreement inter se not to deal on credit; unless the plaintiff knew of the restriction, and that the goods were ordered without the authority of the shareholder sued. Hawken v. Bourne, 8 M. & W. 703. The defendant may be charged as partner on proof of an admission of his interest either before or after the debt was incurred, without proving a deed of co-partnership or any strict legal interest in the mine; Ralph v. Harvey, 1 Q. B. 845; or by proof that he acted as partner; Owen v. Van Uster, 10 C. B. 318; 20 L. J., Č. P. 61; unless the admission be shown to have been made under error.

Vice