PRINCIPAL, FACTOR AND AGENT. 71 1st. To affect the lien of any consignee or factor, at law, for the expenses and charges attending the shipment, transportation, and care of any merchandise entrusted to him : 2d. Nor to prevent the actual owner from recovering such merchandise from such consignee or factor, previous to the pledge thereof, as aforesaid, or from his assignees, in case of his insolvency :— 3d. Nor to prevent such owner from recovering any merchandise or document, so as aforesaid deposited or pledged, upon tender of the money, and restoration of the negotiable security, or property so advanced to such consignee or factor; and, upon tender of such further sum of money, and restoration of such negotiable instrument or property as may have been advanced or given by such consignee or factor, to such owner; or upon tender of a sum of money equal to the amount or value thereof: 4th. Nor to prevent such owner from recovering, from the person with whom such merchandise may have been so deposited or pledged, any balance of money remaining in his hands as the proceeds of the sales thereof, after deducting the amount of the moneys so advanced thereon, on the amount of the negotiable security so given as an advancement as aforesaid. SEC. 6. If any consignee or factor shall deposit or pledge any merchandise, or document, as aforesaid, consigned or entrusted to him, as a security for any money borrowed, or negotiable instrument received by him, and shall dispose of or apply the same to his own use, in violation of good faith, and with intent to defraud the owner of such merchandise; or if any consignee or factor shall, with the like fraudulent intent, apply or dispose of, to his own use, any money or negotiable instrument, raised or acquired by the sale or other disposition of such merchandise, such consignee or factor shall, in every such case, be deemed and adjudged guilty of a misdemeanor, and shall be punished therefor, by a fine not exceeding five thousand dollars, and by imprisonment for a term not exceeding five years. GENERAL PARTNERSHIP. To constitute a partnership, and to make a person liable as a partner, there must be an agreement between him and his colleagues to share in all risk of profit and loss; or he must have permitted them to use his credit, and to hold him out as jointly liable with themselves. In general all the partners appear ostensibly to the world, constituting what is called the house or firm. A number of persons agreeing to subscribe sums of money for the purpose of obtaining a bill in the legislature to make a canal or railway are partners in the undertaking; and, therefore, a subscriber who acted as their surveyor could not maintain an action for work done by him in that character, on account of the partnership, against all or any of the other subscribers. If there is no express stipulation as to the management of partnership property, the majority must decide as to the disposition and management of partnership concerns. Each partner is not only entitled to his proportion of the partnership estate, according to express agreement, or what he originally contributed, but he has a lien upon it for any sum of money advanced by him to, or owing to him from, the partnership. LIABILITY OF PARTNERS.-In general, it may be stated, that the acts of one partner in the way of sale, purchase, promise, or agreement, when performed without collusion, and in violation of no public law, and in course of the partnership business, are binding on the whole firm. And this responsibility of partners, for the acts of each other in the course of trade, cannot be limited by any agreement, covenant or promise, in the articles by which the partnership is constituted. This principle is, however, subject to some qualification. If one partner can show a disclaimer, he will be relieved from responsibility. Or, if there be any particular speculation which he disapproves of, by giving distinct notice to those with whom his partners are about to contract, that he will not, in any manner, be concerned in it, they cannot have any claim upon him, as proof of the notice would rebut his prima facie liability. Neither is there any joint liability for the debt of one partner, unless contracted in the course of the partnership concern. So, if the partnership effects are taken, and sold on an execution against one partner only, the sheriff is to pay over to the other partners a share of the produce proportioned to their shares in the partnership effects. Though a small share in the business renders the shareholder a general partner, and subjects him to the same responsibility as if he held a more considerable share, yet a share in a ship, the copyright of a book, or other specific object, does not constitute a general partnership: and, therefore, the responsibility is limited to that particular object. The acts of one partner, in drawing bills of exchange, endorsing such as are payable to the firm, and making and endorsing promissory notes, when they concern the joint trade, bind the firm. But it is otherwise if they concern the acceptor only in a disjoint interest. A partner, as such, cannot bind his co-partner by deed without express or implied authority. One partner may maintain an action for money received against the other partner, for money received to the separate use of the former, and wrongfully carried to the partnership account. One partner cannot sell, or mortgage his undivided interest in a specific part of the property belonging to the partners. (11 N. H. 404.) Stage companies are liable as partners. When money is lent to part of the members of a firm, who give a note for it in their own names only, the lender is not a creditor of the firm, although the borrowers apply the money towards payment of debts of the firm. (8 Met. 411.) DISSOLUTION OF PARTNERSHIP.-By the death of one partner the partnership is dissolved unless there is an express agreement for the transmission of an interest in the business to the deceased partner's family, or for the continuation of it by his executor or administrator; or by will the continuance is provided for; and in making this provision, the whole estate, or all that portion of it already embarked, may be bound. Where the partnership is special, or formed for a single dealing or transaction, as soon as that is completed the partnership is at an end of course. LIMITED PARTNERSHIPS. 73 But where a general partnership is entered into, for an unlimited time, it may be put an end to at any time by either of the parties, so that he does not break off with some sinister view. A partnership may be dissolved by the expiration of the time for which it was constituted, by award of arbitrators, by the insanity of one of the firm, or by the gross misconduct of a partner, which will induce a court of equity to annul the contract. An advertisement in the newspapers is not sufficient announcement of the dissolution of partnership: notice ought to be sent to all persons with whom the firm had dealings while in partnership. If a partner, when he retires, draw out of the partnership stock all that he had paid in, the house being insolvent at the time, he will be obliged to refund to the creditors of the other partner.* LIMITED PARTNERSHIPS. (Laws, R. S. c. 34.) Limited partnerships may be formed for the transaction of mercantile, mechanical and manufacturing business, but not for banking or insurance. General and special partners.-Such associations may consist of one or more persons, jointly and severally responsible as general partners under the common law of partnership, and of one or more persons contributing a specified amount of capital in cash, but whose personal liability is limited to the cases hereinafter mentioned, and who are called special partners. Certificate. The partners must severally sign a true certificate, embracing all the particulars contained in the following form, viz. :— In conformity with the provisions of the 34th chapter of the Revised Statutes, we, A. B., of ---, and C. D., of -- do hereby certify that, pursuant to said provisions, we have this day formed a limited partnership, for the purpose of carrying on business in the city of Boston, under the name and firm of ; that said is a general partner, and said cial partner, and has contributed the sum of is a spetoward the common stock of said copartnership. Said partnership is to continue years from and after the day of the date hereof, and is to terminate on the day of In witness whereof, we, the said hands and seals this day of in the year have severally set our in the year A. B. (L. s.) The certificate must be acknowledged before a justice of the peace, recorded in the registry of deeds where the partners have their principal place of business, and a copy thereof certified by the register, must be filed and recorded in the registries of all other * See Forms of Partnership in " Business Man's Assistant." L. T. 7 counties where they have a place of business, and must also be immediately published six weeks successively in a newspaper printed in the town where they have their principal place of business, or if no paper be there published, then in some one printed in Boston. The business must be conducted by the general partners only, in their own names; but if there be more than three, all the names are not required to appear in the style of the firm. The special partners must not permit their names to be used, nor make any contracts for the partnership. Legal proceedings must also be in the name of the general partners. The capital stock must not be reduced, by withdrawal or division of interest or profits, below the amount stated in certificate; and if at any time the assets of the partnership are insufficient to pay the debts, the special partners will, as individuals, be held responsible to the amount of all the profits they may have received, with interest thereon, from the time they were withdrawn. In case of insolvency, no general assignment will be valid unless it be for the general benefit of all creditors, without preference, except for debts due to the United States on bonds for duties, nor unless a notice thereof be published in some newspaper printed in the county where the place of business of the party making it is situated, if there is such a paper, or otherwise in some paper printed in Boston, within fourteen days after making such assignment; provided, that if the place of business be in Dukes County or Nantucket, if no paper is printed in the county, the notice may be published in a Boston paper at any time within sixty days after making the assignment. The assent of creditors to such an assignment may be presumed unless they make known their dissent within sixty days after notice thereof. Dissolution, &c.-A limited partnership may be dissolved by a notice thereof recorded and published, in the same manner as the original certificate, and may in like manner be renewed or continued beyond the original term by recording and publishing a new certificate. In all cases in which special partners are not ex MORTGAGED REAL ESTATE. 75 empted from liability by a compliance with the conditions of the law of limited partnerships, they become general partners. The Supreme Court has jurisdiction in equity of all cases under the law relating to limited partnerships. MORTGAGED REAL ESTATE. Conveyance of real estate by mortgage.-Every contract for securing a debt by a conveyance of lands and tenements, is deemed a mortgage as between the parties; and the borrower will be entitled to redeem his property within three years, although the conveyance is, on the face of it, absolute. In order, however, to protect both mortgagor and mortgagee against subsequent purchasers and mortgagees, it is necessary, that the fact that the conveyance is intended as a mortgage, be recorded with the deed of conveyance. All persons who have an estate in lands or tenements, may mortgage the same to the extent of their interest, if they are not under any legal disability. A mortgage on real property must be recorded in the office of the register of deeds in the county where the estate lies; and must be discharged by an entry on the margin of the record, signed by the mortgagee, his executors or assigns, acknowledging the satisfaction of the mortgage. Foreclosure of the mortgage.—The mortgage may be foreclosed for breach of condition, and the mortgagee obtain possession of the premises by action, or he may make an open and peaceable entry; but a memorandum or certificate thereof must be made on the mortgage deed, and signed by the mortgagor, and be recorded within thirty days; or else, the certificate of two witnesses, to prove the entry, must be made and sworn to before a justice of the peace, and recorded as aforesaid. Unless the contrary is stipulated in the mortgage, the mortgagee may take possession as well before as after breach of the condition; but, in such case, if the debt is afterwards paid, or the mortgage redeemed, the clear rents and profits must be deducted from the sum due on the mortgage. But where possession is taken before a breach of condition, the three years limited for redemption shall not begin to run |