IV. 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. This action being local in its nature, the nusance must be proved to have been committed in the county where the venue is laid (s). But it is not necessary that the gravamen should be described with any local certainty (t). It is sufficient if the declaration point out the gravamen with certainty enough to enable the defendant to have notice of it. Notice to remove nusance left at premises is evidence (u) against subsequent occupier. The defendant may prove that the plaintiff gave him leave by parol to do the act which occasioned the nusance (x), and that it was done under that permission; for a license executed is not countermandable (y). Secus, while it remains executory (z). "A_parol executory license is countermandable at any time" (a). Hence a parol license from A. to B. to enjoy an easement over A.'s land, was holden (b) to be countermandable at any time whilst it remained executory; and that if A. conveyed the land to another, the license was determined at once without notice to B. of the transfer. But an authority coupled with an interest cannot be revoked (c). The license must be established by clear and satisfactory proof (d). Goods which were upon plaintiff's land were sold to defendant; by the conditions of sale, to which plaintiff was a party, the buyer was to be allowed to enter and take the goods; it was holden, that after the sale the plaintiff could not countermand the license (e). Although a parol license may be an excuse for a trespass, until such license is countermanded; yet a right (f) and title to have a passage for water over another's land, being a freehold interest, requires a deed to create it.

V. Costs.

ACTIONS of trespass on the case, under which this action is classed, are within the statute 3 & 4 Vict. c. 24. This statute, with the cases which have been decided upon it, will be found, ante, pp. 38, 9.

(8) Warren v. Webb, 1 Taunt. 379. But see 3 & 4 Will. IV. c. 42, s. 22, ante, p. 517.

(t) Mersey and Irwell Navigation v. Douglas, 2 East, 497. See also Jefferies v. Duncombe, 11 East, 226.

Salmon v. Bensley, Ry. & M. 189. Winter v. Brockwell, 8 East, 308. (y) See Liggins v. Inge, 7 Bingh. 682. Per Haughton, J., Webb v. Paternoster, Poph. 151; but see Williams v. Morris, 8 M. & W. 488.

CHAPTER XXXI.

PARTNERS.

I. What is necessary to constitute a Partnership, p. 1134. II. How far the Acts of one Partner are binding on his Copartners, p. 1140.

III. Of Actions by and against Partners, p. 1146; What Remedy one Partner has against another, p. 1149.

IV. Evidence, p. 1152.

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 of participation of profits and loss is essential (1). 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 (a) (who were general merchants), B., for himself and partner (who were oil-merchants), C., for himself and son (who were also oilmerchants), 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 pursuance 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

(a) Coope and others v. Eyre and others, 1 H. Bl. 37.

(1) A distinction must be observed between an actual partnership, and those cases in which there is only an inchoate right of partnership, which may or may not be completed at the option of the intended partners. See Fox v. Frith, 10 M. & W. 131; and Gabriel v. Evill, 9 M. & W. 298.

plaintiffs. To some of the vendors, (not plaintiffs in this action,) B. and Co., and C. and Co., during the treaty, declared it to be a common 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 purchasers 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.

Where the executors of a deceased partner continued his share of the partnership property in trade for the benefit of his infant daughter; it was holden (b), that they were liable upon a bill drawn for the accommodation of the partnership, and paid in discharge of a partnership debt; although their names were not added to the firm, but the trade was carried on by the other partners under the same firm as before, and the executors, when they divided the profits and loss of the trade, carried the same to the account of the infant, and took no part of the profits themselves.

A father, established in business (c), 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 (b) Wightman v. Townroe, 1 M. & S. 412. (c) Peacock v. Peacock, 2 Campb. 45.

:

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 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. Where an infant held himself out as in partnership with I. S., and continued to act as such till within a short period of his coming of age, but there was no proof of his doing any act as a partner after twenty-one: it was holden (d), that it was his duty to notify his disaffirmance of the partnership on arriving at twentyone; and, as he had neglected to do so, that he was responsible to persons who had trusted I. S. with goods subsequently to the infant's attaining twenty-one, on the credit of the partnership. 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 (e), 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 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 recognized in the following case :-A., having neither money nor credit (f), 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 the profits; such contract not constituting a partnership as between themselves, but only an agreement for a compensation for trouble and credit, though B. was liable as a partner to third persons, creditors. But where two persons, who were never in part

(d) Goode and Bennion v. Harrison, 5 B. & A. 147.

(e) Waugh v. Carver, 2 H. Bl. 235,

recognized by Bolland, B., in Bond v. Pittard, 3 M. & W. 361.

(f) Hesketh v. Blanchard, 4 East, 144.

nership as general partners, concur in giving an order for an undivided parcel of goods, they are not, therefore, liable jointly (g) to the seller, if, upon the whole of the transaction, the intention of the parties appears to have been that the buyers should be severally responsible for the amount of their respective interests in the goods. A party paying a deposit on shares in a trading company, and afterwards signing the deed of partnership, is to be considered (h) as a partner from the time of his paying the deposit. But in an action for goods and work applied in equipping a mine (the defendant being charged as one of the company concerned in working it ;) it was holden (i), that the mere payment of deposits without any signature of a deed, or interference in management, was not enough to make the defendant liable, unless the jury believed, from the evidence, that an actual conveyance of an interest in the mine had been made to her (2). But in Ralph v. Harvey (k), where a defendant was charged with a debt as partner in a mining company; it was held, that the fact of partnership might be shown by evidence short of strict proof that he had executed a deed of co-partnership, or was legally interested in the mine; and that declarations made by him, either before or after the debt was incurred, might be used for this purpose. Where a mining company was formed, the capital to be 30,000l., in 3,000 shares of 107. each, and 2,000 shares only were actually subscribed for, of which the defendant took 100; it was holden, that letters subsequently written by the defendant to the directors, requiring them to call a meeting for the purpose of changing a director, were evidence to go to the jury to show that he authorized the directors to proceed with the smaller amount of capital, so as to render him liable for the price of articles supplied for the use of the mines, on the order of the directors (1). A project having been formed for the establishment of a company for the manufacturing of sugar from beet-root, a prospectus was issued stating the proposed capital to consist of 10,000 shares of 251. each. The directors began their works and entered into contracts respecting them, and manufactured and sold some sugar; but only a small portion of the proposed capital was raised, and only 1,400 out of the 10,000 shares were taken; it was holden (m), that a

(g) Gibson v. Lupton and Wood, 9 Bingh. 297; 2 M. & Sc. 371.

(h) Lawler v. Kershaw, 1 M. & Malk. 93.

(i) Vice v. Lady Anson, 1 M. & Malk. 96; 7 B. & C. 409.

(k) Ralph v. Harvey, and Richards v.

Harvey, 1 Q. B. 845.

(1) Tredwen v. Bourne, 6 M. & W. 461. See Dickenson v. Valpy, 10 B. & C. 128; 5 M. & Ry. 126; and ante, p. 323; and Hawken v. Bourne, 8 M. & W. 703. (m) Pitchford v. Davis, 5 M. & W. 2.

(2) In Steigenberger v. Carr, 3 Scott's N. R. 471; 3 M. & Gr. 191; Tindal, C. J., says, "with respect to this case of Vice v. Lady Anson, I cannot think its doctrine will ever be extended: and certainly none of the subsequent cases place much reliance upon it."