perited after 1S otherwife, however, where the flock perilhes after, admixture
admixture, for in this cafe the lofs falls upon the partnerlhip flock generally, fince,
as the property of each is no longer diflinguilhable, it follows that the
lofs muft affed both. ■ ,
madeUbyhone ' jH one of the partners in queftion make a purchafe with his, own
partner, flock, and the .flock of the other, afterwards perifh before he has
fto cT o f the made any purchafe with it, in this; cafe the thing, purchafed by'the.
partner is in partnerlhip between the two, agreeably to ftipulav
Tithes, is par- tion; becaufe, as partnerlhip fubfifted between them at the time of
by both; and *ue purcnaie, the article purchafed became a fubjedt of partnership
ft fp ^ n T ’ between them at that time; 1 and the effedt is. not altered by the .dean
« to force, ftrudlion o f the other’s property after the purchafe. This partner-
the contrail; mip m the purcha-feYls a partnerfh-ip by .contract * (according - to Mohammed
f) infomuch, that, whoever of the1 two, Tells it, the. lale .is
lawful. Hajfan-Ibn-Zeeyad alleges that the partnerlhip is merely a
partnerlhip by right o f property -j-, infomuch that it is not- lawful for
either partner to fell more than his own fhare, becaufe the contradl
of partnerlhip was -dilfolved in the prefent inftance;. in confequence of
the deftrudtion of flock, in the fame manner as where the deftrudtion
takes place before any purchafe being made ; nothing, therefore, remains,
except the ejfeSl of the purchafe, namely, right o f property [in
the thing purchafed,]; and hence it is; a partnerjhip by.right o f pror
perty. T h e , argument of Mohammed is that the crmtraEi has been
completely fulfilled with refpect to the. article purchafed, and confe-
quently cannot be rendered void by the deftr.udiion of property, after
fuch completion. It is to be obferved that,, in the cafe now under
conlideration, the purchafer is to take from his . partner his proportion
* Meaning, that the partnerlhip (with, refpedt to the pitrchajf' continues in force
under the original.contract.
f That is,, exifting merely in.virtue of. a m u tu a l right of'.-property^ and not of the
amtrafy.
©£
3 * 7
of the price [of the article purchafed], becaufe he bought a moiety of
it by a g en cy ,‘ and paid the price out of his own. fubftanee, as was before
mentioned.—What is now advanced, proceeds upon a fuppofition
.of the purchafe made by one partner having been effected b efo re the
deftrudtion of the other’s- flock. If,, however, the flock of one butifitperilh
partner; firft perilh, and the other partner th en make a purchafe with others *pur-
his own. fubfta-nce, and it Ihould have been exprefsly agreed, in the W&tiL thal
contradl,. thatteach is to adt asi an agent on behalf of the other, in tween them
this cafe whatever-.the purchafer may have bought is divided between nerfhip by
the two, according to ;their previous ftipulation; becaufe, although
the. contradl of partnerlhip be annulled, yet the agency, which was
exprefsly mentioned, in.It, continues in force; the purchafe is therefore
participated in by both, in virtue of the agency; the; connexion
continues a. partnerlhip b y r ig h t o f p r o p e r ly ; and the purchafer is accordingly
to take, from hiss partner his proportion-, of the price, for the
reafon before Hated. If, , on. the other hand, the p a rtn e rjh ip . only be ™lefs there-
mentioned in the contradl, and nothing exprefled in it refpedling each lion of
partnet adting as,-an agen t on. th e .o th er 8 b e h a lf, the article purchafed ‘l1'
. r 7 • r r contrail j; for
by one partner appertains iolely to h im ; becaufe, if the; article Were this cafe it
participated between the two, it could be fo onlyin virtue, of the
mutual agency implicated in the .contradl; but, that being annulled,
the power of agency implicated in it is alfo annulled. It is, otherwife '
where the parties have e xp refsly m entioned a mutual power of agency;
becaufe in this , cafe the agency is;.not annulled by the annulment
of the partnerlhip, as agency is here one-efpecial. delign of the contract,.
and is not merely im p lica ted in it..
A partnership, is legal, although the plrties Ihould not have- Partnerlhip
mixed flocks. Z iffe r and S h a fe i maintain that it is illegal, becaufe out^admix*"
the p ro fit is a branch of the flo c k , and the branch is not to be partici- tureofltocks-
pated in except where the original flock itfejf is alfo participated,
which cannot be fo but by coalefcence or a dm ix tu re. Th e ground
upon which they proceed is that, in. a contradl. of partnerlhip, the
flock: