P A 3 14 R T N E R S H I P . B o o k XIV..
two doftors, a coalefcence of the capital is effential to the partnerfhip ;
and that cannot take place where the two flocks are heterogeneous.-
This point will be more fully treated of hereafter.
Debt6 can
only be
claimed from
the partner
who incurs
them;
and this partner,
on
making payment,
has re-
courfe to the
other for his
proportion.
W h e r e one of two partners in traffic makes a purchafe, the demand
for the price lies againft him, and not againft the other partner;
(becaufe, as has been already demonftrated, the contract of partnerfhip
in queftion comprehends agency, but not bail; and the agent is~
the original with refpeft to rights * ;), and on. making payment, the
purchafer is to take from the other partner his proportion of the
price, (provided he has fatisfied the demand out of his own particular,
property, and not out of the partnerfhip flock,), becaufe he is the
other’s agent with- refpeft to his fhare. If, however, it be not knotwrti
whether he has paid the price out of the partnerfhip. flock, or out of
his own property, except from the declaration of the purchafer himfelf,
it is in this cafe incumbent upon him to produce proof ; becaufe the
purchafer here advances a claim for property againft his partner ; and'
the partner refills his claim r and the declaration, of a defendant,,
(delivered upon oath,), is.to be credited-
The contract
isano ulled by.
the lofs of
the whole
capital; or of
the (lock of
either partner-
«.particular;.
It the whole partnerfhip flock, or the flock of either partner in.
particular, perifh hefore any purchafe be made, the contrail of part-
nerfhip is annulled:: becaufe, in a contract of partnerfhip,, the fu bjell
of the contrail is property, (that being fpecified in a contrail of partnerfhip,
in the fame manner as in a deed o f gift, or a •wilt,') and, in.
confequence of the deftruftion of the fubjeft, the c out raft is. diflblved,.
in the fame manner as in fale. It is etherwife in Mozdribat, and.
Jinguiar agency\, becaufe in thofe the dirms or deendrs cannot be
identified by fpecifcation J, or in any other mode than by adlual:
* T h a t is, he is the perion upon whom all demands are to be made.
f Arab. jy ik a lit-M w fra d iti meaning, agency w ith refpeft to fame particular a ft.
} T h a t is , by the mention o f them in-the contrast..
feizin.
fehin. The agency herein mentioned is reftrifted to the fingtihr de-
fcription, for the purpofe of diflinguifhing it from the agency implicated
in a contraft of partnerfhip or of pawnage, becaufe that is
annulled by the diffolution of the partnerfhip or the pawnage, as a
thing which is comprehended is annulled by the diffolution of that
which comprehended it. An example of Jinguiar agency is where a
■ perfon commiffions another to purchafe him a Jlave, (for inftance,)
in which cafe, if he give the agent money for that purpofe,
and the money perifh in the agent’s hands, yet the agency is not
annulled.— “ It is otherwife” (fays Fakr-al-IJldm in his commentary
on the Zeeddat,) “ in cafes of Mozdribat and partnerjhip, be-
■“ caufe the dirms and deendrs are in both identified by fpecifica-
“ tion, infomuch that if the money be loft before delivery, the
■“ Mozdribat is annulled.” This is contradiftory to what our author
has above advanced, that, “ in Mozdribat and fmgular agency, the
x6 dirms and deendrs cannot be identified by fpecification, nor in any
“ other way than by aftual feizin.” It is, however, probable that
there are two opinions recorded on this point. What is above faid,
that “ if the whole partnerfhip flock, or the flock of either partner
“ in particular, perifh before any purchafes be made, the contraft
*■4 of partnerfhip is annulled,” — is evident, where the whole flock
o f both partners perifhes; and where the flock of one of the partners
perifhes the contraft isalfo annulled; becaufe the partner whofe property
has not perifhed had agreed to the other participating in his
property for no other reafon than that he fhould alfo participate in
the other's property; but, upon this being rendered impoffible, he
will not agree that the other fhould participate in his property. The
■ contraft, therefore, is void, as its continuance is ufelefs: and, to
whomfoever the deftroyed property belonged, the lofs affefts him jaft cafe) the
only, and not the other, whether it perifh in his own hands, or in the
hands of his partner;— ifin his own hands evidently; and alfo, if in the partner
the hands of his partner, becaufe it is a trujl in the hands of that perfon*. f(0ckhad belonged,
-
* A truftee is not refponfible for his truft in cafes of lofi or dejlrtifiw nt (See Depofits.)
S f a It