ners with A. for the price of hay furnished at A.'s request for the use of the horses which were his separate property, but were kept by him for the purpose of working the coach the stage allotted to him under the agreement. N. It did not appear in what manner, upon an adjustment of the accounts, the hay furnished to the different horses was paid for; whether as part of the general outgoings, or separately by each party. A. was employed by B. to sell goods, and was to receive for his trouble whatever money he could procure for them beyond a stated sum; this was holden not to constitute a partnership between A. and B. as to these goods. So where A. having purchased two bullocks, put them to depasture upon the lands of B., under an agreement that, after they had been fatted, the profit to be made upon the resale, above a certain sum (at which A. then valued the bullocks), should be equally divided between A. and B. It was holden that A. and B. were merely partners in the profits, and that this was a mode of paying B. for the pasture; consequently A. might maintain an action in his own name, without joining B., to recover the price of the bullocks from a person to whom he had sold them. So where there was an agreement between A., the sole owner of a lighter, and B. a lighterman", that B. in consideration of working the lighter should have half her gross earnings, Lord Ellenborough was of opinion, that as this was only a mode of paying B. wages for his labour, and differed from a participation of profits and loss, it did not constitute a partnership. So an agent who is paid by a proportion of the profits of the adventure, is not therefore a partner in the goods'. II. How far the Acts of one Partner are binding on his Co-partners. A GENERAL partnership agreement, though under seal, does not authorise the partners to execute deeds for each other, unless a particular power be given for that purpose. But although one partner cannot bind the other partners by f Benjamin v. Porteus, 2 H. Bl. 590. g Wish v. Small, Devon Spring Ass. 1908, coram Thomson, B. 1 Camp. N. P. C. 331. h Dry v. Boswell, 1 Camp. N. P. C. i Meyer v. Sharpe, 5 Taunt. 74. deed, without an authority by deed, yet in mercantile transactions, in drawing and accepting bills of exchange, it never was doubted, but that one partner might bind the rest', even without their knowledge or assent. A new partner, however, cannot be bound in this manner for an old debt incurred by the other partners, before the new partner was taken into the firm this was established in the case of Sheriff v. Wilks, 1 East, 48. There the plaintiff's had sold a quantity of porter to A. and B., who were then partners, which porter was entered in the plaintiffs' books in the names of A. and B.; and the same was afterwards shipped for the West Indies, and the defendant B. paid the shipping charges. Six months afterwards C. became a partner with A. and B., and continued so for a few months, when their partnership was dissolved. The defendant B., previous to the dissolution of the partnership, sent to the plaintiffs a memorandum or calculation, in his own hand-writing, of certain deductions claimed by him in respect of the porter. The plaintiff's drew a bill upon the defendants for the balance. This bill was accepted by A. in the partnership firm of all the defendants, by his subscribing thereon," Accepted, A. and Co." An action having been brought by the plaintiffs against A. B. and C. upon the acceptance; and A. and C. having been outlawed, B. pleaded the general issue: it was holden, that the plaintiff's could not recover, Le Blanc, J. observing, "that this case must be determined in the same manner as if C. had pleaded to the action. It seemed admitted, that if one of several partners pledge the partnership fund for his individual debt, that would not bind the rest. And he saw no difference between the case of one, and the case of two, of several partners pledging the joint fund for their individual debts, which was the case before the court." The point above alluded to by Le Blanc, J., viz. that one partner cannot pledge the security of another for his own private debt, appears to have been expressly decided in two cases referred to by Mr. East, in a note to the foregoing decision, viz. in Gregson and others v. Hutton and another, B. R. E. 22 Geo. 3. and in Marsh v. Vansommer and another, London sittings after Mich. T. 1786, cor. Buller, J. See also Swan v. Steele, ante, p. 290. Where one of several partners commits an act of bankruptcy, which is afterwards followed up by a commission and assignment, he has no longer any property in the partnership effects; but the property is, from the time of such 1 Sce ante tit. Bills of Exch. m Bayley, J. 10 East, 426. act of bankruptcy, in his assignees by relation, and in the solvent partners. It may be observed, that the general authority of one partner to draw bills or promissory notes to charge another is only an implied authority" and consequently that implication may be rebutted; for it is not essential to a partnership, that one partner should have power to draw bills and notes in the partnership firm to charge the others; they may stipulate between themselves that it shall not be done; and if a third person, having notice of this, will take such a security from one of the partners, he shall not sue the others upon it, in breach of such stipulation, nor in defiance of a notice previously given to him by one of them, that he will not be liable for any bill or note signed by the others. If one of two partners commit a secret act of bankruptcy, the other partner may, for a valuable consideration, and without fraud, dispose of the partnership effects; and though he himself afterwards become bankrupt, the assignees, under a joint commission, cannot maintain trover against the bona fide vendee of such partnership effects; and the same rule holds, although the solvent partner knew of the bankruptcy; for even, in such case, the solvent partner may dispose of partnership funds in discharge of a debt due from the partnership, and though that partner afterwards become bankrupt, money had and received will not lie. against the creditor at the suit of the assignees of both. Where one of two partners, with the intention of cheating the other, goes to a shop and purchases articles such as might be used in the partnership business, which he instantly converts to his own separate use, if there was no collusion between him and the seller, this is to be considered as a partnership transaction, and the innocent partner is liable. for the price of the goods, without proof of any previous dealings between the parties. One of two partners drew bills of exchange in his own name, which he procured to be discounted with a banker, through the medium of the same agent who had discounted other bills drawn in the partnership firm with the same banker; it was holden that the banker had not any remedy against the partnership upon the bills so drawn by the single partner; because they did not appear to have been drawn n Gallway v. Matthew and another, 10 o Fox v. at Serjeant's Inn before M. T. 57 G. 3. q Bond v. Gibson and another, 1 Camp. N, P. C. 185. for and on account of the partnership. And although the proceeds of these bills had been applied to the use of the partnership, yet the court held', that the partners were not liable as for money lent, inasmuch as the transaction was originally mere matter of discount, and not an advance of money to the partnership, taking the bills as a collateral security. But where one of several partners, with the privity of the others, draws bills of exchange in his own name upon the partnership firm, in favour of persons who advanced him the amount, which he applies to the use of the partnership, although the partners are not jointly liable on the bills, they may be jointly sued by the payees for money lent. III. Of Actions by and against Partners. Ir three partners (two of whom reside abroad and one in England) be sued for a partnership debt, and the partner resident in England appear to the action, but refuse to appear for the partners resident abroad, the sheriff, under a distringas against the two partners, may take partnership effects, though paid for by the partner resident in England alone, to whom the partnership was legally indebted; and the court will not relieve him against such distress. In an action by partners for the non-performance of a contract entered into with the partnership, it is essentially necessary that the action should be brought in the joint names of all the persons of whom the partnership consisted at the time the contract was made (1), otherwise the parties suing will be liable to be non-suited for the omission of their co-partners (2). The same rule formerly held with respect to actions r Emly v. Lye, 15 East, 7. s Denton v. Rodie, 3 Camp. N. P. C. 493. t Morley v. Strombom & al., 3 Bos. & (1) Subsequently admitted partners, though under an agreement to share in profit and loss, from a time antecedent to the contract, ought not to be joined. Wilsford v. Wood, 1 Esp. N. P. C. 180. Lord Kenyon, C. J. (2) In one case, where an action was brought in the names of two persons, with whom the defendants had dealt as partners, and it appeared that at the time of the contract there was in fact another partner, who had, however, withdrawn his name from the firm, but still continued to receive part of the profits; although it was ob❤ brought against partners, and plaintiffs were frequently nonsuited for not naming all the partners as defendants. This rule was considered as oppressive, inasmuch as it was not possible for the plaintiffs in many cases, without the assistance of a bill of discovery, to ascertain the names of all the persons constituting the firm with which they had had dealings. On this ground the rule was departed from in the time jected that the dormant partner ought to have been joined, Lord Kenyon, C. J., is reported to have efused to nonsuit the plaintiffs. Leveck and another v. Pollard and another, 2 Esp. N. P. C. 468. So where in an action * brought by A. for goods sold and delivered, it appeared that B., who proved the delivery and value of the goods, was the principal manager of A.'s trade: and that he received for his services a certain salary, and besides that, a certain proportion per cent., on the profits of the plaintiff's whole trade, and inclusively on the profits of the demand in question; it was holden, that A. might sue alone, and that it was not necessary that B. should be joined with the plaintiff. So where an action was brought by Mawmant, a bookseller, against the printer, for not insuring the Travels of Anacharsis; and it appeared that several other booksellers, and amongst them Evans, a witness, had a share in the work; but inasmuch as Evans had never contracted with Gillett, but Mawman was the only ostensible man, the court held that he was the only proper plaintiff; and with good reason, for the only acting partner might owe much money to the defendant, which the defendant might set off; but if the plaintiff and the dormant partner had sued, that debt of the acting partner could not be set off. "There is a material distinction between the case where partners are defendants, and where partners are plaintiffs: if you can find out a dormant partner defendant, you may make him pay, because he has had the benefit of your work; but a person with whom you have no privity of communication in your contract, shall not sue you." But where a merchant, carrying on trade on his own separate account, introduced into his firm the name of a clerk, who did not partake in the profits of the business, but continued to receive a fixed salary, Lord Ellenborough held, that in an action on a bill of exchange, payable to the order of this firm, the clerk ought to have been joined as a plaintiff, for he was to be considered in all respects as a partner as between himself and the rest of the world; that where the name of a real person is introduced with his own consent, it is immaterial what agreement there may be between him and those who share the profit and loss -they are equally responsible, and the contract of one is the contract of all. Lloyd v Archbowle, 2 Taunt. 324. + Mawman v. Gillett, cited by Sir J. Mansfield, C. J., 2 Taunt. 395. |