It is a general rule, both throughout Europe and in this country, that the whole firm and all the members of a copartnership are bound by the acts and contracts of one partner with reference to the partnership business and affairs, (nn) - such act or contract being in law the act or contract of all. This power of each partner to represent and to bind the rest, and to dispose of the partnership property, is sometimes regarded as arising from the agency which all confer on each; and sometimes from the community of interest whereby no partner owns any part of the partnership property exclusively of the rest, but each partner owns the whole, in common with all the others. We think it rests upon both of these foundations together. It is true that there may be a copartnership where one or more of the partners has no interest in the capital stock by agreement among themselves. But even then all own together the profits, and so much of the funds or capital of the firm as consists of profits. Partners are undoubtedly, in some way, agents of each other. But the principle of agency alone will not explain the whole law of their mutual responsibility. Out of the combination of this principle with those which grow out of the community of property and of interest, the law of partnership is formed. And this law may often be illustrated by a reference to the principles of agency; but must still be regarded as consisting of a distinct system of rules and principles peculiar to itself.

So also, partnership is sometimes spoken of as like joint-tenancy, with important modifications, or like tenancy in common, with such modifications. In truth it is a distinct and independent relation; and though it has some of the attributes of joint tenancy, and some of tenancy in common, it is neither of these. Nor can it be much better illustrated by a reference to either of these modes of joint-ownership, than they would be by a reference to partnership.

If an action is brought against sundry persons as copartners, and the fact of copartnership is admitted, or otherwise proved, then the admission of one of the partners as to any matter

(nn) Stockwell v. Dillingham, 50 Me. 442; Welles v. March, 30 N. Y. 344. 182 between the firm and another party affects, as evidence, all the partners. But where the existence of the copartnership, or of the joint interest of liability, is in dispute, the admission of one person that he is copartner with the others, affects him alone, and is not evidence of the existence of the copartnership so as to bind the others. (o) And if two firms are partners in *any transaction, the acknowledgment by one affects both. * 17G The effect of an acknowledgment by a partner, where a promise is barred by the Statute of Limitations, will be considered when we treat of that statute.

Where a joint business transaction consists in or refers to the purchase of goods, it is generally the rule that the partnership liability begins when the goods are ordered. But this may depend upon the question whether the person giving the order was, at that time, the agent of all who are sought to be charged. For if he was not, then they are not liable; and in that case a subsequent naked acknowledgment of the contract will not suffice to render them liable as partners. (p) For parties

(o) Taylor v. Henderson, 17 S. & It. 453; McPherson v. Rathbone, 7 Wend. 216; Jewett v. Stevens, 6 N. H. 82; Mitchell v. Roulstone, 2 Hall, 351; Nelson v. Lloyd, 9 Watts, 22; Cottrill v. Van-duzen, 22 Vt. 511; Gilpin v. Temple, 4 Harring. 190; Van Reimsdyk v. Kane, 1 Gallis. C30; Tuttle v. Cooper, 5 Pick. 414; Whitney v. Ferris, 10 Johns. 66; Bucknam v. Barnum, 15 Conn. 68; Phillips v. Purington, 15 Me. 425; Jennings v. Estes, 16 id. 323; Ruhe v. Burnell, 121 Mass. 450; Welsh v. Speakman, 8 W. & S. 257; Haughey v. Strickler, 2 id. 411; Porter V. Wilson', 13 Penn. 641. - But the existence of a partnership may he proved by the separate admissions of all who are sued, or by the acts, declarations, and conduct of the parties, the act of one, the declarations of another, and the acknowledgment or conduct of a third. Welsh v. Speakman, 8 W. & S. 257; Barcroft v. Haworth, 29 Ia. 462. See also Haughey v. Strickler, 2 W. & S. 411. And where proof of the admissions of an alleged partner are offered at the trial, it is the province of the judge and not of the jury to pass upon the fact whether such person was a partner or not. Harris v. Wilson, 7 Wend. 57. - And where the terms of the agreement and the facts are admitted, it is a question of law, whether there was a partnership or not. Everitt v. Chapman, 6 Conn. 347, Terrill v. Richards, 1 Nott & McC. 20. - The fact that the defendants do business as partners is prima facie evidence of their copartnership, and no written articles need be shown. Bryer v. Weston, 16 Me. 261; Gilbert v. Whidden, 20 id. 367; Forbes v. Davidson, 11 Vt. 660. And the adverse party's acknowledgment that the plaintiffs were partners is sufficient. Bisel v. Hobbs, 6 Blackf. 479. In Hogg v. Orgill,34 Penn. St. 344, it is held that the admission of one partner that another was a member of the firm, made after dissolution, lands no one but himself.

(p) Gouthwaite v. Duckworth, 12 East, 421; Saville v. Robertson, 4 T. R. 720; Sims v. Willing. 8 S. & R. L03. - The case of Post v. Kimberly, 9 Johns. 470, is a leading case on this subject. In that case, A. and M., partners, owned three-fourths of a vessel, and 15. and K., partners, owned the one-fourth; they agreed to fit her out on a voyage from New York to Laguira. A. and M. purchased three-fourths of the cargo, and chiefly, if not wholly, with notes lent and advanced to them by P. & R., commission merchants. B. & K. purchased the other fourth of the cargo, for which they paid their own money, and shipped the same on board the vessel; but it was not distinguished from the rest of the cargo by any particufar marks; and the whole cargo was to be sold at Laguira, for the joint account and the joint benefit of the owners, A. and M., and B. and K. M. went out as the supercargo and agent; and having sold the cargo at Laguira, he invested the proceeds in a return cargo, with which the vessel set sail for New York, but was are *not jointly liable as partners upon any contract, unless they had a joint interest preceding or contemporary with the formation of the contract. But where two or more agree together to purchase goods, and agree also that one shall purchase them for the rest, here there is a partnership preceding the purchase, and he that buys is by the agreement of the others their agent, and all are liable as partners. (q)