plaintiff was entitled to recover of defendant the amount advanced as money had and received. Allen vs. Citizens S. Nav. Co., 22 Cal. 28.

SEC. 5. The plaintiff had made certain advances of money, which defendants had received under the following circumstances: They were holders of a mortgage given to secure the payment of money advanced and to be advanced by themselves and others. The plaintiff made certain advances, and was one of the parties intended to be secured, but was no party to the mortgage. The defendants assigned the mortgage, and received the consideration, but refused to pay any portion of it to the plaintiff: Held, that the defendants occupied towards the plaintiff the position of trustees, and the money sued for was received by them, in that character. It is of no consequence that the trust was created by a contract to which the plaintiff was not a party. He subsequently assented to it, and the defendants cannot now repudiate it, and retain the money, which they would not otherwise have received, and they are liable to an action for money had and received. Kreutz vs. Livingston et al.,

15 Cal. 346.

SEC. 6. Where one, having a claim to collect, agreed with another to take his claim against the common debtor and treat it as his own in any suit brought for the debt, costs and expenses to be shared pro rata, and, afterwards, prosecuted both claims to judgment in his own name, and in his own name bought the property of the defendant in executive sale and left it with an agent for sale, he is not liable to an action for money had and received, or in indebitatus assumpsit. If the defendant had undertaken this agency, he would be bound, though it were gratuitously undertaken, to good faith and ordinary diligence in executing what he pretended to do; but he could not be sued for money received if he never received any, though he failed to get it because of his gross negligence or even bad faith. If, in other words, he neither directly nor indirectly received money on account of this agency, though he might be responsible, in a different form of action, for his negligence, he would not be held responsible for money had and received, or in the form of indebitatus assumpsit. Herrick vs. Hodges, 13 Cal. 431.

SEC. 7. Under the act of 1857, regulating fees of office in certain counties, the sheriff may charge fees for copies of the summons and injunction served by him in a suit, though the copies were prepared and printed by the plaintiff, and certified by the clerk at the plaintiff's request; but the sheriff must look for his fees to plaintiff, at whose request the copies were served, and cannot sue the clerk for money had and received-although plaintiff had paid the clerk for such copies-unless the money was delivered to him to be paid the sheriff. Edmondson vs. Mason, 16 Cal. 388.

SECTION 1. 1st. Limited partnerships for the transaction of mercantile, mechanical, mining or manufacturing, business within this state, may be formed by two or more persons, upon the terms and subject to the conditions and liabilities prescribed in this act; but nothing contained in this act shall authorize such partnerships for the purpose of banking or insurance.

2d. The said partnership may consist of one or more persons, who shall be called general partners, who shall be jointly and severally responsible as general partners are by law, and of one or more persons who shall contribute to the common stock a specific sum, in actual cash payment as capital, who shall be called special partners, and who shall not be personally liable for any debts of the partnership, except in cases hereinafter mentioned.

3d. The persons forming such partnerships shall make

and severally sign a certificate, which shall contain the name or firm under which said partnership is to be conducted, the names and respective places of residence of all the general and special partners, distinguishing who are general and special partners, the amount of capital which each special partner has contributed to the common stock, the general nature of the business to be transacted, and the time when the partnership is to commence, and when it is to terminate.

4th. No such partnership shall be deemed to have been formed, until a certificate, made as aforesaid, shall be acknowledged by all the partners, before some officer authorized to take acknowledgment of deeds, and recorded in the office of the recorder of the county in which the principal place of business of the partnership is situated, in a book to be kept for that purpose, open to public inspection; and if the partnership shall have places of business situated in different counties, a copy of the certificate, certified by the recorder in whose office it shall be recorded, shall be filed and recorded in like manner in the office of the recorder in every such county. If any false statement shall be made in any such certificate, all the persons interested in the partnership shall be liable as general partners for all the engagements thereof.

5th. The partners shall, for three successive weeks immediately after such registry, publish a copy of the certificate above-mentioned in a newspaper printed in the county, where their principal place of business is situated, and if no such paper be there printed, then in a newspaper in the state nearest thereto; and in case such publication be not so made, the partnership shall be deemed general.

6th. Upon every renewal or continuation of a limited partnership, beyond the time originally agreed upon for its duration, a certificate thereof shall be made, acknowledged, recorded and published, in like manner as is provided in this act for the original formation of limited partnerships; and every such partnership, which shall not be renewed in conformity with the provisions of this section, shall be deemed a general partnership.

7th. The business of the partnership shall be conducted

under a firm in which the names of the general partners only shall be inserted, and the general partners only shall transact the business. If the name of any special partner shall be used in such firm, with his consent or privity, or if he shall personally make any contract respecting the concerns of the partnership, with any person except the general partners, he shall be deemed and treated as a general part

ner.

8th. During the continuance of any partnership, under the provisions of this act, no part of the capital stock thereof shall be withdrawn, nor any division of interests or profits be made, so as to reduce such capital stock below the sum stated in the certificate before-mentioned. If at any time during the continuance, or at the termination of the partnership, the property or assets shall not be sufficient to pay the partnership debts, the special partners shall severally be held responsible for all sums by them in any way received, withdrawn or divided, with interest thereon from the time when they were so withdrawn, respectively.

9th. No general assignment by such partnership, in case of insolvency, or where their goods and estates are insufficient for the payment of all their debts, shall be valid, unless it provide for a distribution of the partnership property among all the creditors, in proportion to the amount of their several claims.

10th. In case of an assignment, as provided for in the preceding section, the assent of the creditors shall be presumed, unless within sixty days after notice thereof, they . shall dissent; and no such assignment shall be valid unless notice thereof shall be given in some newspaper printed in the county where the place of business of the party making it is situated, or if no newspaper be printed in such county, then in some newspaper printed in the state nearest thereto, within fourteen days after the making such assignment.

11th. All suits respecting the business of such partnership, shall be prosecuted by and against the general partners only, except in those cases in which provision is made in this act; that the special partners shall be deemed general partners, and that special partnerships shall be deemed gen- . eral partnerships, in which cases all the partners deemed

general partners may join or be joined in such suits, and excepting also those cases where special partners shall be held severally responsible on account of any sum by them received or withdrawn from the common stock, as before provided.

12th. No dissolution of a limited partnership shall take place, except by operation of law, before the time specified in the certificate before mentioned, unless a notice of such dissolution shall be recorded in the recorder's office in which the original certificate, or the certificate of renewal or continuation of the partnership, was recorded, and unless such notice shall also be published for three successive weeks in some newspaper printed in the county where the certificates of the formation of such partnerships were published, according to the provisions of this act; and if no newspaper shall, at the time of such dissolution, be printed in such county, then the notice of such dissolution shall be published in some newspaper in this state nearest thereto.

13th. In all other cases, not otherwise provided for in this act, the members of limited partnerships shall be subject to all the liabilities and entitled to all the rights of general partners. Gen. Laws, 4812-4824.

SEC. 2. The following form is appliable for limited partnerships:

FORM.

Certificate of Limited Partnership.

This is to certify, to all to whom these presents shall come: That we whose names are hereunto severally described, have entered into a limited partnership within the state of California, under and by virtue of an act of the Legislature of said state (and acts supplementary thereto) passed the fourth day of April, A.D. 1850, entitled "An act to authorize the formation of limited partnerships," upon the terms and liabilities hereinafter set forth, to

wit:

1st. The said partnership is to be conducted under the name and style

of .....

2d. The names of the general partners in said firm are

residents of

are residents of

.........

3d. The said special partner ...

stock

.....

and are and

has contributed to the common

dollars, and the said special partner ....

to the common stock ...... dollars.

4th. The nature of the business to be transacted by the said firm is [here'

state the business which is intended].