governed by substantially the same rules that apply in the case of ordinary partnerships.1 It is true in mining as other commercial partnerships, that one member of the firm may avoid the firm indebtedness, as between himself and his copartners, by transferring his interest in the firm, pursuant to an agreement that he shall not thenceforth be held responsible by the creditors of the firm, and if such an agreement is acquiesced in by the creditors it would extend also to them; 2 but their liability for debts of the firm for what is necessary for their joint undertaking, is not essentially different from that of members of an ordinary commercial partnership, and can be no easier avoided.3 But in the absence of an express authority, or a local custom or usage to the contrary, the firm would not be responsible for a note executed by one of the members of the firm, even though it were given in payment for supplies useful and necessary for the firm business; 4 and under Sta. 32 & 33 Vic., c. 19, 25, shareholders in a cost-book mining company are not liable for the debts of the firm if they have ceased to be shareholders in the company for at least two years before the company quit working the mine upon which the indebtedness occurred, or before the winding-up order.5

1 Lindley Part., § 146, p. 209; Crowshay v. Maule, 11 M. M. R. 223. 2 Burnside v. Tetzuer, 63 Mo. 107; MacSwinney Mines, p. 122.

3 Lindley on Part., supra; Nolan v. Lovelock, 9 M. M. R. 360; Roberts v. Eberhardt, 11 M. M. R. 301; Skillman v. Lachman, 11 M. M. R. 381.

4 Wait's Act. & Def., §9 (Vol. 4), p. 435; Skillman v. Lachman, 23 Cal. 198; Gillig v. Lake Bigler &c. Co., 2 Nev. 214. "A managing superintendent cannot bind a mining partnership, except upon such contracts as are usual and necessary in the ordinary prosecution of the work, unless specially authorized." Jones v. Clark, 42 Cal. 180; B. & W. L. C. 525; M. M. D. 261.

5 Lindley Part., § 176, p. 209, and footnote.

- Min

§ 342. Same - Liability on commercial paper. ing, like other non-trading partnerships, are not organized for the purpose of borrowing money or issuing commercial paper; and the firm is not, generally, liable for money borrowed by one of the partners, or for any species of commercial paper executed in the name of the firm.2 Where a partner exceeds his authority in borrowing money or executing commercial paper, he would be individually liable for the same,3 but where it appeared that the money was used for the firm's business, the firm would, no doubt, be held liable therefor.4

§ 343. Same - By conveyance of partnership property. One partner cannot bind his copartners by deed, without special authority, or unless executed in their presence, and by their consent or subsequent ratification,5 for one partner has no implied authority to convey the real estate of the firm; 6 and although the partner executing the deed would himself be bound by the convenance,7 it cannot operate to bind the other members of the firm, without

1 Burmester v. Norris, 6 Exch. 796; German Mining Co., 4 De G., M. & G. 35.

2 Ducarrey v. Gill, M. & M. 450; Bentley v. Bates, 4 Y. & C. Eq. Ex. 191; Brown v. Byers, 16 M. & W. 252; Tiedeman Com. Pap., p. 164; Dickinson v. Valpy, 10 B. & C. 128; Brown v. Kilger, 11 M. M. R. 343. 3 Owen v. Van Usder, 10 C. B. 318.

4 German Mining Co., 4 De G., M. & G. 19. Such use would render the firm liable by way of ratification. Harrison v. Heatharn, 6 M. & G. 81.

Lindley Part., § 278; Harrison v. Jackson, 7 T. R. 207; Fitchburn v. Boyer, 5 Watts, 159; Snyder v. May, 19 Penn. St. 235; McDonald v. Eggleston, 26 Vt. 154; Doe v. Tupper, 12 Miss. 261; Bentrim v. Zierlin, 4 Mo. 417; Ruffuer v. McConnell, 17 Ill. 212.

6 Ruffner v. McConnell, 17 Ill. 212; Walton v. Tosten, 49 Miss. 569; Lindley Part, § 278, p. 390 and cases cited.

Elliott v. Davis, 2 Bos & P. 338; Kosson v. Brocker, 1 N. W. Rep. (U. S.) 418; Day v. Lafferty, 4 Ark. 450; Price v. Alexander, 2 G. Green, 427; Pettes v. Bloomer, 21 How. Pr. 317.

an express authority from them to be so bound.1 The assent of the other partners, however, could from the circumstances be implied,2 and a deed executed by one partner in the name of the firm, may be treated as a deed of all the partners, upon proof of an express authority delegated prior to the execution of the instrument, or a subsequent ratification of the unauthorized act.3 The same rules apply in the case of leases and other instruments under seal, and before one partner can bind the firm, a previous express authority must generally be shown, or a subsequent ratification, for the reason that the partners are mere tenants in common as to such realty, and unless the property was purchased with partnership funds, and used for the purposes of the partnership only, each associate, in contracting with reference thereto, must contract in his own individual name; 5 but if the property leased was purely partnership property and was only used for the purposes of the firm, it would then be considered the property of the partners in trade; 6 and the authority would be implied from the character and scope of the business to enable one partner to bind the firm by such an

1 Mann v. Etna Ins. Co., 40 Wis. 549; Baldwin v. Richardson, 33 Tex. 76; Shirley v. Fearns, 33 Miss. 653.

2 Pike v. Bacon, 20 Me. 280; Cody v. Shepherd, 11 Pick. 400; Guinn v. Rooker, 24 Mo. 290; Lowery v. Drew, 18 Tex. 786.

3 Person v. Carter, 3 Murph. 321; Lucas v. Louders, 1 McMull. 311; Lee v. Onstott, 1 Ark. 206.

4 Russell v. Annable, 109 Mass. 72; Herbert v. Henrick, 16 Ala. 581; Taylor Land. & Ten. 124 and 125, and cases cited.

5 Ante, idem; Coles v. Coles, 15 Johns. 159; Rohrburg v. Reed, 57 Mo. 392; Palmer v. Sawyer, 114 Mass. 19; Eaton's Appeal, 66 Pa. St. 483; Wilgus v. Lewis, 8 Mo. App. 336. One partner can convey no specific interest in the firm property. Tennent v. Gunther, 31 Mo. App. 429.

6 Cox v. McBurney, 2 Sandf. 561; Otis v. Sill, 8 Barb. 102; Anderson v. Lemon, 8 N. Y. 236; Fall River Co. v. Borden, 10 Cush. 485.

instrument.1. Nor can one member of a firm execute a valid mortgage of partnership real estate, without the concurrence of the other members of the firm; 2 but as one partner has the implied authority to borrow money, this has been held to be sufficient authority to enable one member of a firm to pledge or mortgage the partnership chattels for the purpose of securing a debt of the firm,3 and such a mortgage would be binding on the firm, although executed by one partner without the consent of the other members of the firm.4

§ 344. Same-Joint and several liability. - According to the common law significance of the term, "joint obligation," all the obligors were, in legal contemplation, but one person owing a single debt, and no one of them owing any part of it. It was necessary, in the case of joint obligations, to sue all or none, and though any one of several joint obligors could by death avoid the payment of

1 Butler v. Stocking, 8 N. Y. 408; Grom v. Seton, 1 Hall, 262; Lindley Part. 278 and 279, and cases cited; Taylor Land & Ten., Vol. 1, pp. 127 and 128.

2 Lindley Part., § 284; Morris v. Jones, 4 Horr. 428; Lambert v. Sharp, 9 Humph. 224; Morse v. Bellows, 7 N. H. 550; Hart v. Withers, 2 N. J. L. 285; Doe v. Tupper, 12 Miss. 221; Button v. Hampson, Wright, 93.

3 Ex parte National Bank, 14 Eq. 509; Patent File Co., 6 Ch. 83; Ex parte Lloyd, 1 Mont. & Ayr. 494; Smith v. Andrews, 49 Ill. 28; Reid v. Goodwin, 48 Ga. 527; Richardson v. Lester, 83 Ill. 55; Hawkins v. Hastings Bank, 1 Dill. 462. For form of partner's acknowledgment for firm, see Keck v. Fisher, 58 Mo. 532.

4 Woodruff v. King, 47 Wis. 261; Morrison v. Mendenhall, 18 Minn. 232; McClelland v. Rumsey, 3 Abb. App., Dec. 74: Willett v. Stringer, 17 Abb. Jr. 152; Gates v. Bennett, 33 Ark. 311. But the execution of a mortgage of personal property by one partner in his individual name passes no title. Clark v. Houghton, 12 Gray, 28.

51 Chitty's Pl. 8, 9; Henry v. Mt. Pleasant, 70 Mo. 520; Biiss Code Pl., §§ 62-92.

a debt,1 the clemency of the law, in this respect, was more than offset by the corresponding hardship suffered by the surviving obligors, for under the fictitious doctrine of survivorship the obligation which before could only exist as to all the obligors, on the death of one, was by law fastened upon the survivors.2 This was the universal doctrine

applied to all kinds of joint obligations, and the apparent exception to the rule, instead of being one in fact, whereby a dormant partner was relieved from liability, was rather owing to the fact that he was not, in legal contemplation, a real party to the undertaking.3 But this common law rule, obtaining in the case of joint obligations, together with the ungenerous doctrine of survivorship, has now been abrogated, by statute, in almost all the States which have adopted the civil code, and as such obligations are now by law considered either joint or several, the creditor of a debtor partnership can, generally, at his election, sue either one or all the members of such debtor firm.4

§ 345. Rights and obligations inter sese. In the absence of an express agreement to the contrary, the powers of the members of an ordinary mining partnership are in all respects equal, and no one of the copartners has the right to exclude any other member of the firm, from an equal participation in the management of the concern,5 and this constitutes one of the distinguishing features between

1 Bliss Code Pl., § 92, and cases cited; Bac. Abr. title “Obligations," d. 4; 1 Par. on Con. and notes, Ch. 2.

2 Bliss Code Pl., § 92 and note, p. 145; Bac. Abr. title "Obligations," 4; 1 Ch. Pl., §§ 41-43, and cases above cited.

3 Bliss Code Pl., § 92; Chitty's Pl., § 43 and cases cited.

4 Bliss Code Pl., § 93. See Statutes different States.

5 Lind. Part. (Vol. II.), § 540; Rowe v. Wood, 2 Jac. & W. 558; Lloyd v. Looring, 6 Ves. 777; Smith v. Hill, 13 Ark. 173; Goodman v. Whitcomb, 1 Jac. & W. 589; Marshall v. Coleman, 2 Id. 266.