(d) L. E. 7 Q. B. 598, 604; 41 L. J. (Q. B.) 253, 256.

(e) Heald v. Kenworthy, 10 Exch. 739; 24 L. J. (Ex.) 76 (f) L. R. 7 Q. B. 609, 610; 41 L. J. (Q. B.) 259.

An agent making and signing a contract as such would in general, in the absence of a custom to the contrary, not be liable or entitled to sue upon it (i). Yet, "in every contract, if the agent *chooses to make himself a contracting party, the other contracting party may either sue the agent who has himself contracted, though on behalf of another, or he may sue the principal who has contracted through his sary for the purposes of the firm. But, in order to make people liable as partners to each other, it is necessary that there should be a community of profits (p), although one of them may stipulate to be indemnified against loss (q). This, however, respects their mutual claims, for, however they may stipulate with each other, all who authorize the business to be carried on (r), and all who allow themselves to be described and held out as partners, are liable as such to those to whom they have so held themselves out (s). It was formerly thought that the taking a share in the profits by itself rendered such a *participator liable quoad third persons, but it is now settled that that is not so. "The real test of the liability of any one to third parties as a copartner is, whether or not the other person or persons conducting the business were his agents to carry it on. This was decided by the unanimous judgment of the House of Lords in Wheatcroft and Cox v. Hickman (t) overruling the authorities to the contrary, and reversing the decision in the same case of the Common Pleas and of the Exchequer Chamber" (u). Still the participation of profits is in general a sufficiently accurate test and the right of participation in profits affords cogent, often conclusive, evidence of a partnership (v).

(g) 5 Q. B. D. 414, affirming the decision of Bowen, J., lb. 102; 49 L. J. Q. B. 531, 539. In this case the agents were brokers.

(h) 9 Q. B. D. 623.

(i) Fleet v. Murton, L. R. 7 Q. B. 129, 41 L. J. (Q. B.) 49; Fisher v. Marsh, 5 B. & S. (118 E. C. L. R.) 416; 34 L. J. (Q. B.) 177, 178; Hutchinson v. Patham, L. R. 8 C. P. 482; 42 L. J. (C. P.) 260. 464 agent; and this, whether the principal was known at the time or not, or whether it was or was not known that he was a principal" (k). And he is bound if he signs the contract in his own name without qualification unless it is apparent from other portions of the document that he did not intend to sign as principal; but in order to protect the agent who so signs, a mere description of him in the body of the document as agent for another, even if that other is named, is not sufficient (I). Where in such a case the agent is liable, so also he has a right to sue (m).1

The law of agency derives much illustration from cases decided upon partnership contracts, for "all questions between partners," as expressed by Parke, B., in the case of Beckham v. Drake(n), "are no more than illustrations of the same questions as between principal and agent." It is thought, therefore, that some leading principles of *the law of contracts, as it respects this species of agency, may be useful here, as further illustrating what has been said before, and also as giving some insight into that important head of law to which it directly pertains.

Partnership is the result of a contract whereby two or more persons agree to combine property or labour for the purpose of a common undertaking, and the acquisition of a common profit (0). One party may contribute all the money, or all the stock, or all the labour neces{k) Per Blackburn, J., in Christoffersen v. Hansen, L. R. 7 Q. B., at p. 513; 41 L. J. (Q. B.) 218.

(l) Paice v. Walker, L. R. 5 Ex. 173; 38 L. J. (Ex.) 109; Hough v. Man-zanos, 4 Ex. Div. 104; 48 L. J. (Q. B., etc.) 398; and the notes to Thomson v. Davenport, 2 Smith's L. C. 400, 8th edit.

(m) Fisher v. Marsh, supra.

(n) 9 M. & W. 98.

(o) Smith's Merc. Law, 9th edit., by Dowdeswell, p. 19.

1 See American note to Thomson v. Davenport, 2 Sm. L. C, 8th ed., 398.

Supposing then the parties to have become partners, the result is that each individual partner constitutes the others his agents for the purposes of entering into all contracts for him within the scope of the partnership concern, and, consequently, that he is liable to the performance of all such contracts in the same manner as if entered into personally by himself (x). It follows at once, that in general no new member can be *in-troduced into the partnership without the consent of all the partners (y); for to do so would be for an agent to appoint an agent in the matter of the agency, which, as we have seen, cannot in general be done. It follows, also, from the same principle, that where there is no specific authority, the individual members will be liable upon the partnership contracts, or not, according as the contract is in the ordinary course of the partnership business or not.1 Thus, it has been held, that one

(p) Hoare v. Dawes, 1 Doug. 371.

(q) Bond v. Pittard, 3 M. & W. 357; Hickman v. Cox, 25 L J. (C. P.) 277; 18 C. B. (86 E. C. L. R.) 617.

(r) Wheatcroft and Cox v. Hickman, 9 C. B. N. S. (99 E. C. L. E.) 47; 8 II. of L. C. 268;' 30 L. J. (C. P.) 125.

(s) Dickenson v. Valpy, 10 B. & C. (21 E. C. L. E.) 140; Fox v. Clifton, 6 Bing. (19 E. C. L. R.) 793.

(t) Supi-a, note (?•).

(u) Note to Waugh v. Carver, 1 Smith, L. C, p. 926, 8th edit.

(v) See per Lord Cranworth in Cox v. Hickman, 9 C. B. N. S. (99 E. C. L. E.) 47, 92; 8 H. of L. C. 268, 306; 30 L. J. C. P. 125, 139. See also per Thesiger, L. J., in Ex parte Delhasse, In re Megevand, 7 Ch. Div. 511, 529.

(x) Fox v. Clifton, 6 Bing. (19 E. C. L. R.) 776, 792; Hawtayn v. Bourne, 7 M. &. W. 595.

(y) M'Neill v. Reid, 9 Bing. (23 E. C. L. R.) 68.

1 Thus, a partner cannot bind the firm by a submission to arbitration or by a confession of judgment: Adams v. Bankart, supra; Karthaus v. Ferrer, 1 Pet. 222; Barlow v. Reno, 1 Blackf. 252; Grazebrook v. M'Creedie, 9 Wend. 437; Harper v. Fox, 7 W. & S. 142; "because it would bind the persons and separate estates of the members, and thus transcend the limits of partnership authority;" nor can one partner give a separate creditor an order on a debtor of the firm: McKinney v. Bright, 16 Pa. St. 399; or otherwise apply partnership effects to the payment of his own debts: "Yale v. Yale, 13 Conn. 185; Rogers v. Batchelor. 12 Pet. 230; Livingston v. Hastie, 2 Cai. 249; Modde-well v. Keever, 8 W. & S. 63; Dob v. Halsey, 16 Johns. 34; Langan v. Hewett, 13 Sm. & M. 122.