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and profits.

Result of


2494. A special partner may receive such lawful interest and such proportion of profits as may be agreed upon, if not paid out of the capital invested in the partnership by him, or by some other special partner, and is not bound to refund the same to meet subsequent losses.

NOTE.-Stats. 1870, p. 124, Sec. 15. But the receipt by the special partner, of dividends, as a device to withdraw capital, will render him liable as a general partner.-Lachaise vs. Marks, 4 E. D. Smith, p. 610.

2495. If a special partner withdraws capital from ing capital. the firm, contrary to the provisions of this Article, he thereby becomes a general partner.

Preferential transfer void.

NOTE.-Stats. 1870, p. 123, Sec. 16. In Robinson vs. McIntosh, 3 E. D. Smith, it was held that a Court of Equity has power, at the suit of one partner, to compel another to contribute a sum stipulated as capital, or to restore it to a common fund if he have withdrawn it before the debts have been paid.

2496. Every transfer of the property of a special partnership, or of a partner therein, made after or in contemplation of the insolvency of such partnership or partner, with intent to give a preference to any creditor of such partnership or partner over any other creditor of such partnership, is void against the creditors thereof; and every judgment confessed, lien created, or security given, in like manner and with the like intent, is in like manner void.

NOTE.-Stats. 1870, p. 124, Sec. 17; Parsons on Partnership, p. 552; Hayes vs. Bennent, 3 Sandf., p. 394; Mills vs. Argall, 6 Paige, p. 577; Innes vs. Lansing, 7 Paige, p. 583; Whitewright vs. Stimpson, 2 Barb., p. 379; Jackson vs. Sheldon, 9 Abb. Pr., p. 127; Artesans Bank vs. Treadwell, 34 Barb., p. 553; Hayes vs. Heyer, 3 Sandf., p. 293; White vs. Hackett, 24 Barb., p. 290; Fanshawe vs. Lane, 16 Abb. Pr., p. 71; Van Alstyne vs. Cook, 25 N. Y., p. 489; Ward vs. Newell, 42 Barb., p. 482; Singer vs. Kelly, 44 Penn., p. 145.



SECTION 2500. Liability of partners.

2501. Of special partners.

2502. Liability for unintentional act.

2503. Who may question existence of special partnership.


2500. The general partners in a special partner- Liability of ship are liable to the same extent as partners in a gen

eral partnership.

NOTE.-Stats. 1870, p. 124, Sec. 18; Parsons on Partnership, p. 550.


2501. The contribution of a special partner to the of special capital of the firm, and the increase thereof, is liable for its debts, but he is not otherwise liable therefor, except as follows:

1. If he has willfully made or permitted a false or materially defective statement in the certificate of the partnership, the affidavit filed therewith, or the published announcement thereof, he is liable, as a general partner, to all creditors of the firm;

2. If he has willfully interfered with the business of the firm, except as permitted in Article II of this Chapter, he is liable in like manner; or,

3. If he has willfully joined in or assented to an act contrary to any of the provisions of Article II of this Chapter, he is liable in like manner.

NOTE.-Stats. 1870, p. 124, Sec. 19.

for unin


2502. When a special partner has unintentionally Liability done any of the acts mentioned in the last section, he tentional is liable, as a general partner, to any creditor of the firm who has been actually misled thereby to his prejudice.

NOTE.-Stats. 1870, p. 125, Sec. 20; Bowen vs. Argall, 24 Wend., p. 501; Madison Bank vs. Gould, 5 Hill, p. 309; Smith vs. Argall, 3 Denio, p. 435; 6 Hill, p. 479.

Who may question existence of special partnership.

2503. One who, upon making a contract with a partnership, accepts from or gives to it a written memorandum of the contract, stating that the partnership is special, and giving the names of the special partners, cannot afterwards charge the persons thus named as general partners upon that contract, by reason of an error or defect in the proceedings for the creation of the special partnership, prior to the acceptance of the memorandum, if an effort has been made by the partners, in good faith, to form a special partnership in the manner required by Article I of this Chapter.

NOTE.-Stats. 1870, p. 125, Sec. 21. This provision is intended to put special partnerships, in this respect, upon the same footing with corporations. The language of the section is carefully worded, so as to exclude cases of fraud, etc., and not to deprive the creditor of the benefit of any irregularity subsequent to his contract.

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SECTION 2507. When special partnership becomes general.
2508. How new special partners may be admitted.
2509. Dissolution of special partnerships. Notice.
2510. The name of a special partner not used, unless.

2507. A special partnership becomes general if, within ten days after any partner withdraws from it, or any new partner is received into it, or a change is made in the nature of its business or in its name, a certificate of such fact, duly verified and signed by one or more of the partners, is not filed with the County Clerk and Recorder with whom the original certificate of the partnership was filed, and notice thereof published as is provided in Article I of this Chapter for the publication of the certificate.

NOTE.-Stats. 1870, p. 125, Sec. 22.


may be


2508. New special partners may be admitted into How new a special partnership upon a certificate, stating the partners names, residences, and contributions to the common stock of each of such partners, signed by each of them, and by the general partners, verified, acknowledged, or proved, according to the provisions of Article I of this Chapter, and filed with the County Clerk and Recorder with whom the original certificate of the partnership was filed.

NOTE.-Stats. 1870, p. 125, Sec. 23.

of special


2509. A special partnership is subject to dissolu- Dissolution tion in the same manner as a general partnership, partnerexcept that no dissolution, by the act of the partners, is complete until a notice thereof has been filed and Notice. recorded in the office of the County Clerk and Recorder with whom the original certificate was recorded, and published once in each week, for four successive weeks, in a newspaper printed in each county where the partnership has a place of business.


NOTE.-Stats. 1870, p. 125, Sec. 24; Ames vs. Downing, 1 Bradf., p. 321; Parsons on Partnership, p. 556.

The name of a special partner must not be used in the firm name of partnership, unless it be accompanied with the word "limited."

NOTE.-Stats. 1870, p. 125, Sec. 25. This entire Chapter was adopted in 1870, by our Legislature, from the New York Civil Code, Vol. 2, Title X, pp. 381-404, and has only been changed in language and divided into Articles.

The name partner not

of a special

used, unless



SECTION 2511. When a mining partnership exists.

2512. Express agreement not necessary to constitute.
2513. Profits and losses, how shared.

2514. Lien of partners.

2515. Mine-Partnership property.

When a mining partnership


SECTION 2516. Partnership not dissolved by sale of interest.
2517. Purchaser takes, subject to liens, unless, etc.

2518. Takes with notice of lien, when.

2519. Contract in writing, when binding.

2520. Owners of majority of shares govern.

2511. A mining partnership exists when two or more persons who own or acquire a mining claim for the purpose of working it and extracting the mineral therefrom actually engage in working the same.

NOTE.-In Skillman vs. Lachman, 23 Cal., p. 202, it is said:

"The principal point raised by the appellant is, that the owners of the claim are tenants in common and not partners; that Sprout was one of the owners, and that one co-tenant cannot bind his co-tenants by a note given in the name of the company. This question of the relation which exists between persons owning several interests in a mine, and engaged in working the same, is a very important one. Whatever may be the rights and liabilities of tenants in common of a mine not being worked, it is clear that where the several owners unite and coöperate in working the mine, then a new relation exists between them, and, to a certain extent, they are governed by the rules relating to partnerships. They form what is termed a mining partnership, which is governed by many of the rules relating to ordinary partnerships, but which has also some rules peculiar to itself-one of which is that one person may convey his interest in the mine and business, without dissolving the partnership.-Ferreday vs. Wightwick, 1 Russ. & Mylne, p. 49. Still, there may be a partnership in the working of a mine, subject to the rules relating to an ordinary partnership in trade.-Story on Part., Sec. 82. And this relation of partnership may be constituted either by express stipulation or by implication deduced from the acts of the parties.-Rockw. on Mines, p. 575. But in the case of an ordinary mining partnership, something more will be required to raise the presumption of liability arising from persons holding themselves out to the world as partners than would be necessary in the case of an ordinary partnership. Such persons, in the absence of other circumstances, cannot fairly be presumed to have intended to render themselves liable to all the consequences of a commercial partnership.-Id. The same author concludes his examination of this question, as follows: 'If

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