holds, indeed, that although partners are in the nature of joint tenants, there shall be no survivorship between them in point of interest; yet with regard to partnership contracts, it applies its own peculiar rule; and because they are in form joint, holds them to produce only a joint obligation, which consequently attaches exclusively upon the survivors. By the general mercantile law, however, a partnership contract is several as well as joint, and courts of equity, adopting, to its full extent, that law for their guidance, have considered joint contracts of this description as standing upon a different footing from ordinary joint contracts, and have ascribed a several, as well as a joint operation to them. On the ground, therefore, that each partner is liable for a partnership debt, a court of equity not only sanctions the remedy which the law gives against the surviving partner, but will likewise decree satisfaction out of the estate of a deceased partner (a). per To a suit in equity instituted against partners, as in a suit brought by them, all the partners must be made parties. This is necessary, in order that the court may be enabled to dispense complete justice, by deciding upon and settling the rights of all sons interested (b). But when one partner is resident in a foreign country, and, consequently, out of the reach of the process of the court, the suit may be brought against the partner who is within its jurisdiction; and if the omission be excused by the bill, the defendant will be precluded from objecting that his copartner is not made a party (c); and if a decree be obtained against him, he will be compelled to satisfy the joint demand (d). So where one of the joint owners of a cargo deposited part of the cargo (a) See post, where this subject is more fully considered. (b) Lord Redesdale's Tr. on Pl. 133. (c) Weymouth v. Boyer, 1 Ves. jun. 416. In Cockburn v. Thompson, 16 Ves. 325. Lord Eldon said, "there are many instances of justice administered in this court, in the absence of those, without whose presence, as parties, if they were within the jurisdiction, it would not be administered.” (d) Darwent v. Walton, 2 Atk. 510, with a factor to sell, and hold a moiety of the proceeds for his separate creditor, it was held that the latter, to a bill filed for an account of the proceeds, need not make the other joint owner a party (a). And where a bill was filed against two partners, of whom one was abroad, and the partner in this country admitted that he was the agent of his copartner, it was ordered, upon motion, that service of the subpoena upon the partner in England, or upon his clerk in court, should be good service upon both (b). The relief to be obtained against partners, through the medium of a bill in equity, corresponds in almost every respect with that which is granted against an individual defendant. The number of the parties, or the fact of their being united as partners, does not necessarily make any difference or variation in the equity administered. That remains immutable, and is as rigorously exacted from those who have formed themselves into an association, as it would be were they the objects of suit in their separate capacities. It is not the parties, but the right which is regarded. It has been holden that a court of equity has jurisdiction against a corporation on a bill for an account of the profits in the nature of a partnership, and such a bill will be entertained, not only at the instance of a member, but of a stranger (c). The equitable jurisdiction by injunction, where the effect will be to stop a large trading concern, is exercised with great caution, for an injunction will not be granted ex parte, but on notice, giving the defendants an opportunity to oppose it on affidavit (d). Weymouth v. Boyer, supra. (b) Carrington v. Cantillon, Bunb. 107. S. P. Coles v. Gurney, 1 Madd. 187. And see Ex parte Peyton, Buck, 200. (c) Adley v. Whitstable Company, 17 Ves. 315. S. C. 1 Meriv. 107. See also Attorney-General v. Governors of Foundling Hospital, 2 Ves. jun. 42. (d) Crowder v. Tinkler, 19 Ves. 617. 234 SECTION II. Proceedings against Partners at the Suit of the Crown. BESIDES the liabilities which partners may contract with subjects, the partnership may sometimes be involved in transactions in which the crown is interested. This not unfrequently arises in cases where contraband or uncustomed goods are found in their joint possession, or where one of the partners engages in smuggling, with the consent or privity of the others, and the Attorney-General, on the behalf of the crown, seeks to enforce payment of the penalties imposed by the revenue laws. There, it seems, the partners are either jointly or separately liable, the whole of the penalties being recoverable from them, either in their joint or their individual capacities, at the election of the crown. This doctrine we find laid down by Lord Chief Baron Pengelly (a): "If one of several partners is concerned in smuggling on account of the copartnership trade, the crown may come against any one of the partners for the whole penalty, it being in the nature of a tort, and not of a contract; just as in cases of a tort, a subject might come upon any one concerned in the tort." So, in a case (b) in which wines were imported and entered at the custom-house, by one partner for himself and the firm, and, by a wrong entry in the books, the crown was defrauded of a part of the duties, it was held, on an information being brought for the deficiency, that though the importation and entry were made by a single partner, yet all the persons, who composed the firm at the time of the importation, were liable for the whole (a) Attorney-General v. Burges, Bumb. 223. Proceedings against Partners, &c. 235 to the crown. Nor is it essential, in order to subject partners jointly to penalties, that the goods, in respect of which they are incurred, should actually come to their joint manual possession; if they are in their power, or in the custody of their agent, or of any person by their direction, it is sufficient (a). And, if one partner is guilty of aiding and assisting, or is otherwise concerned in unshipping, or in furthering the importation of prohibited and uncustomed goods, he is liable to the penalty not only for what he, but any of the others may, at the time, smuggle (b). But partners must all be participes criminis, they must be parties to the act of illicit importation, or cognizant of the fact of the goods run being prohibited and uncustomed, or the penalties will not jointly attach upon them. Thus, if two persons join stock together, and buy goods on their joint account, and one of them only is privy to the fact of the goods purchased being run and uncustomed, he alone will be liable to the penalties imposed in respect of the whole quantity, if no actual severance of the goods purchased take place, and no part of them come into the possession of the other (c). And where a joint purchase of goods is made, for which the purchasers know the duties imposed have not been paid, and, immediately after the purchase, a division of the articles takes place, each person is only liable for the penalties incurred in respect of his share: for, although joint tenants are seized or possessed per my et per tout, that is, they are so far possessed of the whole, that none can say, till partition made, that this or that part is not in his possession, yet they, in right and reality, are possessed of no more than their proper share or purparty. As, therefore, they give or dispose of no more, so neither can they forfeit any more (d). The penalty incurred by each is to be measured and regulated by what comes to (a) Attorney-General v. Burges, supra. (b) Rex v. Manning, Com. Rep. 616. (c) Id. Ibid. (d) Co. Litt. 186. a. his possession; but that must be meant of what really and truly comes into his possession, and not what notionally and virtually only can be said to be in his possession (a). And, on the same principle, that each is culpable for what he receives, or what comes to his hands, it seems, that a mere temporary, but exclusive custody of uncustomed goods, with a knowledge that they are of that description, is sufficient to render the person having that custody responsible for the whole penalties imposed. Thus, if two persons, knowing that the duties are not paid, buy tea on the joint account of themselves and a third person, and all the tea is entrusted to one of the two persons, whilst the other search for a purchaser, to whom it is sold, and the proceeds are afterwards shared in thirds, an information for the whole penalty may be maintained against the person with whom the tea was so entrusted (6). We have seen, that in the case of a judgment and execution against an individual partner for his separate debt, the joint creditors must be satisfied before the separate creditor can render his execution available against his debtor's interest in the joint estate; and the same equity applies where an individual partner is the object of an extent at the suit of the crown, because although, in ordinary cases, the crown is entitled to a preference, yet in such an instance that right of preference operates only upon that interest which the partner himself possesses. If, therefore, an extent against a single partner, and a commission of bankruptcy against the firm, are cotemporaneous in their existence, notwithstanding the latter issue subsequently to the former, the joint creditors are entitled to a priority in respect of payment; and, if the assets are inadequate to the discharge of their demands, the crown is not entitled to any satisfaction from the partnership effects (c). (a) Rex v. Manning, supra. (b) Id. Ibid. (c) Rex v. Saunderson, 1 Wightw. 50. |