I. A distinction has sometimes been made between sharing the gross profits or earnings and the net profits ; but it is far from being treated as decisive on the question of partner ship. See 1 Campb. 330 ; 6 Vt. 119 ; 10 id. 170F; 6 Pick. Mass. 335 ; 14 id. 193 ; 6 Meto. Mass. 91 ; 4 Me. 264 ; 12 Conn. 69 ; 38 N. H. 287, 304 ; Collyer, Perth. 35, and note ; Abbott, C. J., 4 Barnew & Ald. 663.
The law merchant in reference to dormant partners has been held to be confined to trade and commerce, and not to extend to specula tions in the purchase and sale of lands. 4 Mass. 424, 426 ; 3 Kent, Comm. 31, note ; 3 Sumn. C. C. 435, 470 ; 11 Me. 337. It has, however, been frequently held that there may be a partnership in the business of purchas ing and selling real estate. 21 Me. 418 ; Story, Partn. N 82, 83 ; Dav. Dist. Ct. 320 ; 7 Penn. St. 165 ; 10 Cush. Mass. 468, 469 ; 4 Ohio St. 1.
The contract must be voluntary among the members : therefore no stranger can be intro duced into the firm without a concurrence of the whole firm. 7 Pick. Mass. 235, 238 ; 11 Me. 488 ; 1 Hill, N. Y. 234 ; 8 Watts St S. Penn. 63 ; 16 Ohio, 166 ; Collyer, Partn. 8, 192 ; Pothier, Partn. ch. 5, ii. art. 91 ; 2 Rose, Bank. 254. The elelectus persona, as it is called, is so essentially necessary to the constitution of a partnership that even the executors or other representatives of partners themselves do not, in their capacity of ex ecutors or representatives, succeed to the state and condition of partners. Collyer, Partn. 9 ; 7 Pick. Mass. 237, 238 ; 3 Kent, Comm. 55, 56. The civilians carried this doctrine so far as not to permit it to be stipu lated that the heirs or executors of partners should themselves be partners. Domat, lib. 1, tit. 8, s. 2; Pothier, Partn. n. 145. But in this respect the common law is otherwise. 2 Yes. Sen. Ch. 34; Collyer, Partn. 9, 228 et seq. ; 3 Kent, Comm. 56. 57 ; 1 Swanst. Ch. 510, n.; 9 Ves. Ch. 500 ; 7 Conn. 307. And Pothier thinks such a stipulation is binding. Pothier, Partn. n. 145. Clauses providing for the admission into the firm of a deceased partner's representatives will, in general, be construed as giving them an option to become partners, and not as constituting them part ners absolutely. 7 Jarman, Conv. 120 ; 1 M'Clel. & Y. Exch. 569 ; 2 Russ. Ch. 62 ;
Bisset, Partn. 169, 170 ; Collyer, Partn. 230.
S. Although the delectus persona, which is inherent in the nature of partnership, pre cludes the introduction of a stranger into the concern against the will of any of the part ners, yet no partner is precluded from enter ing into a sub-partnership with a stranger : nano socii mei socius, nzeus socius non est. Dig. lib. 17, tit. 2, s. 20 ; Pothier, Partn. ch. 5, n. 91. In such case the stranger may share the profits of the particular partner with whom he contracts ; and although it has been decided that it is not true as a general proposition that such stranger will not be liable for the debta of the general partnership, 13 Gray, Mass. 468, still, it is quite evident that a mere participation in profits renders one responsible only for the debts and liabilities of those with whom he participates ; and, inasmuch as such stranger shares the profits only of and with one of the partners, he can be held only as the partner of that partner ; he cannot be held as a partner in the general partnership, because he does not share or participate with the otlier persons who compose it. See Rose, Bank. 255 ; 1 Jac. Ch. 284; 3 Kent, Comm. 52 ; 2 Sim. & S. Ch. 124 ; 1 Bos. & P. 546 ; Collyer, Partn. 194 ; Mont. & M'A. 445 ; 2 Bell, Comm. 636 ; 1 Lindley, Partn. 52, 53 ; 3 Ross, Comm. Law, 697. Besides, a sub partner does not receive a certain share of the whole profits of the firm, but only a part of a share thereof ; and be does not receive this part of a share, nor is he entitled to interfere with it at all, to say whether it shall be more or less in amount, until it has actu ally been set out and the time has come for a division between himself and the partner with whom he contracted. He does not draw out of the general concern any of its profits: he only draws from the profits of one who has previously drawn them from the general partnership. See 6 Madd. Ch. 5 ; Russ. Ch. 285 ; Pothier, Partn. c. 5, 11, n. 91 ; Starkie, Partn. 155 ; 3 Ross, Comm. Law, 697. If this stranger has caused damage to the partnership by his default, the party who has taken him into the partnership will be liable to the other partners the same as if he bad done the damage himself. Pothier, Partn. n. 93.