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THESIGER, L. J., read the judgment of the court. object with which Mycock entered into this partnerThis is an action brought upon two bills of exchange ship was that of ultimately putting his son, who was of which the plaintiffs are the holders. The first is a then under age, into it, and as a matter of fact, bill for 2761. 158., dated 6th March, 1878, drawn by R. Mycock never interfered in any way with the manageK. Kelly & Co, upon and accepted by Messrs. J. & R. | ment of the business, or occupied any other position Wilson, payable to the order of the drawers four | in connection with it than that of a dormant partner. months after date, and bearing the indorsements “R. Beatson concealed from him any information relating K. Kelly & Co.," " Wm. Beatson,” and “ Josiah Carr to his accommodation transactions, and for his fraud & Sons." The second is a bill for 4841. 138., dated 13th upon him in this and other matters connected with the March, 1878, drawn by Josiah Carr & Son, addressed inception of the partnership was ultimately prosecuted “Mr. Wm. Beatsou, chemical works, Rotherham," and convicted. The plaintiff's never knew of the partand accepted in the name “William Beatson," payable nership until after July, 1878, at which date Beatson to the order of the drawers four months after date, was a bankrupt. For some time prior to the formaand indorsed by them; both bills were discounted by tion of the partnership Beatson had kept an account the plaintiffs upon the 14th March, 1878. Tho defend- / at the Sheffield and Rotherham Bank, headed “Wilants to the action are Wm. Beatson and John Henry liam Beatson," and after the formation of the partMycock. The signature “Wm. Beatson" upon each nership that account was continued without any of the bills was the signature of the defendant Wild change in its heading, and into this account Beatson liam Beatson. He bas allowed judgment to go by paid all moneys, whether moneys belonging to the default, and the action is defended by Mycock alone, partnership or his own private moneys; and upon it who disputes his liability upon either of the bills. The he drew, whether for the purposes of the business or circumstances of the case are as follows: Beatsou for his own private purposes. Beatson himself was called many years prior to Dec. 1877, carried on business as a as a witness for the plaintiffs, and in addition to provchemical manufacturer at certain works at Rotherham. ing the facts already mentioned, gave evidence to the At tho end of the year 1873, and the beginning of the effect that he kept two cash-books, of which one was, year 1874, the plaintiffs made inquiries as to Beatson's as he stated, a private book, kept by him as manager commercial position of Josiah Carr, who was bringing at the place of business, the other a partnership cashthem paper for discount with Beatson's name upon it; book; that in the foriner he did not enter cash received and the result of the inquiries being satisfactory, they on account of the partnership, but that in the latter discounted such paper. Beatson and Carr had some all business payments were entered. With reference trade transactions together, but apart from these to his bill accommodation transactions generally, ho trade transactious, there was a series of accommoda stated that none of these were brought into the ledger, tion transactions carried out by accommodation bills either before the partnership or after; that the cash between Beatson and the other parties to the bills now transactions relating to these accommodation bills sued upon, including Carr himself, and these accom were entered in the private cash-book, to which Mycock modation bills were from time to time renewed. Down had no access, and were never put into the partnership to the end of the year 1877 Beatson had no partner; cash-book, to which Mycock himself might have had but upon the 11th Dec. in that year, a deed of partner- access. With reference to his particular transactions ship was entered into between him and the defendant with Josiah Carr, he stated that all trade transactions Mycock. By its terms the partnership was to last for between them were over before the partnership, and a period of five years, with power of continuance. The that as regards the particular bills sued on, they were value of the good will of the business, the works and bills drawn for his and Carr's accommodation, not for premises where the same was carried on, and the ma Mycock's, although he added that they were in a dechinery, plant, and effects belonging to it, was esti gree for the business, as one way of finding capital, mated at 25,0001., and Mycock was to purchase a one and that without the bill transactions there was not fifth share of the business by the payment of the sum capital enough to work the business. He admitted of 5,0001. The business was to be carried on under the that Mycock found the 5,0001. which he was to pay for style of “William Beatson." The works and premises his share in the business; that he never told Mycock were to remain yested in Beatson, who was to stand that money was wanted; that he thought he was possessed of them for the purposes of the partnership, not making Mycock liable for any of the accommodaand the business was to be managed by Beatson, his tion bills, whether renewals or otherwise, and that he partner not being required to attend to the business considered them private transactions, and did not enter any further than he should think fit. By the 11th them in the partnership book. He further said that clause of the deed it was provided that “neither of he considered the bank-book private, and that Mycock the partners, without the written consent of the other had left him to keep the banking account as he thought first obtained, should, on the credit of the firm, make proper; that the proceeds of accommodation bills were any payment, advance, or other application of the paid into the banking account, and that out of such moneys or effects of the said partnership, or in any proceeds the price of goods supplied to the business manuer engage or use the same, or the name or credit and wages were sometimes paid. As regards the proof the 'partnership firm, except on account of and for ceeds of the bills sued on, it appeared that a portion the benefit of the partnership, and in the usual man of them found their way into the banking account; ner of carrying on the business;" and by the 12th clause but that upon the same day as this occurred Beatson it was provided "that neither of the partners should drew out more than he paid in. On the part of Mycock lend or deliver upon credit any of the moneys or effects an accountant was called who, upon an examination of belonging to the partnership to any person whom the Beatson's books, proved that apart from the accomother partner should previously have forbidden to be | modation bill transactions, the business had during trusted, nor without the previous consent in writing the period between the beginning of January and the of the other partner would become bail, surety or end of May, 1878, a cash balance to its credit; that the security with or for any person whomsoever, nor make, net result of the accommodation transactions was to give, draw, accept or indorse any bond, bill, promissory reduce the balance; and that Beatsou had drawn out note, or other instrument, or enter into any obligation for his own purposes, independent of the business, or engagement, or make any default whereby the | about 4,0001. Upon these facts taken from the notes estate and effects of the partnership might be made of Lindley, J., before whom with a jury the case was liable for the payment or satisfaction of any tried, that learned judge stated to the jury, as appears sum of money for which the partnership should not from the shorthand writer's notes, that the questions have received a full and sufhcient consideration." The I for them were: First, “was the name Wm. Beatson put to the bills to denote the firm or to denote Wm. ual member of it, has come under consideration, and Beatson?" Secondly, “Did the bank take the bills as has been discussed, not upon tho footing of any right the bills of the chemical works, whoever the proprie- | of election on tho part of the holder of the bill, but tors might be, or as tho bills of Wm. Beatson only?" | upon the particular circumstances of each case, and The jury retired, and upon returning into court, tho the presumptions applicable to them, cases which we foreman stated that as regards the bill for 4811. 13s., it shall have to refer to in connection with the plaintiffs' having been drawn upon William Beatson at the chemi- | second contention. A part, too, from authority it apcal works, Rotherham, the jury agreed that Wm. pears to us manifestly contrary to true principles of Beatson's acceptance of it must be held to denote tho law that the holder of a bill, bearing upon it a name acceptance of the firm; but that as regards the other which prima facie indicates an individual, and would bill they found no evidence upon the point. Upon naturally lead to credit being given to the individual being asked by the learned judge to answer the ques alone, should upon discovery and proof that there is a tion as regards that bill according to their judgment, firm of which the individual is a member carrying on the jury conferred again, and subsequently stated that,
ently stated that, business under his name, have the right of going against from the fact of that bill being put in connection with the firm, although at the same time that the proof is the other, they might take it as being the same thing; given it is proved also that the bill was signed by the and to the second question they answered that the individual for himself and not for his firm, and for bank took the bills as the bills of the chemical works. consideration entirely unconnected with any partnerUpon these findings a verdict and judgment was en ship purpose. The second contention made on behalf tered for the plaintiffs against the defendant Mycock. of the plaintiffs is one of more weight, and apart from That judgment was subsequently set aside and judg the intrinsic importance of the question involved in it, ment entered for Mycock by the Common Pleas Divisa there is an additional importance derived from the ion, upon the ground, stated shortly, that in a case fact that if the contention be correct, it at least diswhere the name of an individual is the name also of a places the ground upon which the judgment of the firm, and that name is put to a bill, the presumption is court below rests, although it will still remain to be that the signature is the signature of the individual considered whether the judgment may not be rested and not of the firm; that consequently it lay upon the upon another ground. As a matter of principle there plaiutiffs in this case to displace that presumption by is considerable force in the arguments both for and showing that the signatures to the bills sued upon were against the contention. Against it it is said that where respectively the signatures of the firin, and that Beat- a signature to a bill is of a name which in itself and son was authorized to use the firm name on the particu primu fucie indicates an individual, and would lead to lar occasions and for the particular purposes; in other credit being given to the individual, and the holder of words, that the bills were given for partnership objects the bill suing upon it is therefore compelled to give and as partnership acts, and that the plaintiff's had failed some proof that the name indicates a partnership, it is to discharge the burden cast upon them. 40 L. T. Rep. but just that he should be compelled to go the whole (N. S.) 638; L. Rep., 4C. P. Div. 212. Against the judg length of proving, not only that a partnership existed ment of the Common Pleas Division the present ap under the particular name, and that the individual peal is brought. In support of the appeal it is carried on no business separate from that carried on coutended for the plaintiffs either, first, that where, as by the firm, but further, that the bill was signed by in this case, a signature is common to an individual the individual as a partnership act aud for partnersbip and the firm of which the individual is a member, it objects. In support of the contention it is said that, is open to the bona fide holder for value without no inasmuch as a bill of exchange is ordinarily used as a tice, whose paper it is, of a bill with such a signature trade instrument, there is a presumption that a bill upoit, to sue either the individual or the firm ; or having upon it a name common to the firm and to the secondly, that if this option is not open to the holder, individual is a trade bill, and therefore the bill of the there is a presumption that the bill was given for the firm, in a case where it is proved or admitted that firm and is binding upon it, at least where the individ there is no trading in the name except by the firm. In ual carries on no business separate from the business the absence of authority upon this question our opinof the firm of which he is a member. As regards the ion upon it would be in favor of the plaintiffs' contenfirst of these two contentious, we think that it is not tion. In point of convenience and expediency, and in a well-founded one. The only authoritative sanction the interest of trade, it has much to support it. The to it upon which the learned counsel for the plaintiff's vast majority of bills given under the circumstances rely is in a case of McVair v. Fleming, which appears supposed would be really partnership bills, and yet it to have been decided in the blouse of Lords in 1812, would be often ditlicult, if not impossible, for the but which is not reported otherwise than in Montague holders of such bills to do more than prove that the on Partnership, vol. I, p. 37, and in the opinion of Lord only trade carried on under the individual name was Eldon delivered to the House of Lords in the case of tho tra le of a partnership; and if they were compelled Davidson v. Robertson, 3 Dow. 2:29, and which, without to go further, and prove that the particular bill was a further knowledge of the facts of the case, and the ex partnership bill, the effect might be that in many cases act bearing of the judgment upon them, it is impossi dormant partners, aud in some cases ostensible ones ble to treat as an authority. Lord Eldon does not too, might escape from just liabilities. On the other quote it in support of so wide a proposition as that hand, tho partners sought to be made responsible on under consideration, but as bearing upon the proposi- the bills would in most instances be able to prove tion that a joint adventure was as proper a partnership whether any particular bill sued upon was or was not as any other, and one of the adventurers would be a partnership bill, and should, as it appears to us, at bound by the indorsement and acceptance of the other, least have the onus of doing so thrown upon them, a proposition which had been negatived by one of the when it is through their own act, in allowing the firm interlocutors of the Scotch court, finding that what name to be the same as that of an individual in the ever might be the case in a proper partnership, one firm, that difficulty and doubt arise. But in the court person concerned in a joint adventure is not entitled below it was considered that the American authorities by subscribing a firm to bind the other. While, there clearly negatived this view, and that the weight of fore, there is really no authoritative sanction for this English authority is in favor of the American view of contention, there is abundance of authority against it the law. We propose then to consider first the English in the numerous cases in the English and American authorities. In Swan v. Steele, 7 East, 209, two percourts, where the liability of partners upon a bill sons of the name of Wood & Payne were wholesale signed in a name common to the firm, and an individ. I grocers in Liverpool, trading under the firm name of Wood & Payne, and also carrying on, under the same bills, so differs Lord Eldon's supposed case from the firm name, and at their counting-house, the business case we are considering of a bill signed in a name of buying and selling cotton. The defendant Steele common to a firm, and an individual member of the was a dormant partner with them in this latter busi firm, where there is no trading separate from the ness. It was held that he was liable upon an indorse trading of the firm, and no signature to the bill but ment in the firm name of a bill which had been paid that of the common name, that Ex parle Bolitho to Wood & Payne, for cotton sold by the firm, but appears to us rather to support the contention of the which had been delivered by them to provide for an plaintiffs' counsel than to assist the defendant Mycock. acceptance in the firm name for sugar supplied to the | The case of the Bank of South Carolina v. Case, 8 B. & grocery business. It is difficult to see how the case C. 4:37, was one in which three persons carried on busicould have been otherwise decided, for the bill sued | ness in partnership in England under the firm name of upon was admittedly a bill in which Steele was inter- | Crowder, Clough & Co. One of the partners–J. B.Clough ested as indorser and holder with his partner, and - was sent out to America to form a branch house, consequently the indorsement over of that bill, al- which he did form, under his own individual name. though improper under the circumstances, was still He was restricted under the partnership articles from manifestly an indorsement in fact by the partnership transacting any business in America except on the of which Steele was a member. The evidence showed partnership account ; and as a matter of fact, as apwhat the facts were, and the judgment of Lord Ellen pears from the report, p. 432, he had no individual borough assumed that the indorsement was in the business, and the name of J. B. Clough was never used name of the partnership of which Steele was a mem- by him in trade, or in drawing, indorsing, or acceptber, and upon that assumption decided, that in the ing, or negotiating bills of exchange, except for the absence of all fraud on the part of the indorsee, such benefit and on account of the partnership. Under the indorsement would bind all the partners. Emly v. circumstances it was held that all the partners were Lye, 15 East, 6, which is commented on in the judg liable as indorsers in respect of certain bills indorsed ment of the court below as an authority in favor of by Clough in the name of J. B. Clough, and which the defendant upon the point under cousideration, has were connected with partnership transactions, alreally no bearing upon it. There, in an action upon though Clough in indorsing them disregarded certain sereral bills of exchange, and for money had and re specific instructions given him by his partners, and ceived, it was attempted to make the defendant liable, exceeded his authority. It is not necessary to discuss either upon the bills or in respect of the money re- whether the doubts raised by Crompton, J., in Nicholceived upon the discount of the bills, which was son v. Ricketts, 2 E. & E. 497, as to the correctness of applied to partnership purposes, where the signature | this decision are or are not well founded. It is suffiupon the bills was not in the firm name, which was cient for our present purpose to say that the decision George Lye & Son, but in the name of E. L. Lye, proceeded upon all the facts of the case, and not upon which was the individual name of the partner signing. any doctrine as to presumption or burden of proof. The counts upon the bills were upon the argument But the case of Furze v. Sharwood, 2 Q. B. 388, is a abandoned, as it was obvious, as Lord Ellenborough distinct authority upon the point under consideration. said in his judgment, that "on a bill of exchange There a business was carried on by trustees for creditdrawn by one only it cannot be allowed to supply by ors in the name of Samuel Maine, one of the persons intendment the names of others in order to charge who had previously carried it on in partnership. them;" and it was held that on the mere discount of Maine had also for a time a separate business of his the bill no right could arise against the defendant by own. The plaintiff had discouuted for the old partreason of the proceeds being used for partnership pur nership, and also had been accustomed to lend Maine poses, in other words that the transaction was nothing money for the purposes of his private business. Maine more than a purchase of the bills from the signing after a time sold his separate business and ceased to partner. The case of Ex parle Bolitho, 1 Buck, 100, is carry it on, and, having subsequently iudorsed bills in claimed as an authority for the defendant. There the name of “Samuel Maine," one of which had been Peter Blackburn was a secret partner in a business discounted by the plaintiff, and was sued on, and the carried on by Isaac Blackburn in his own name, and proceeds of which were placed to his credit at his was sought to be made liable as drawer in respect of bankers, and were drawn upon indiscriminately for bills drawn in the name of Isaac Blackburn by Isaac the purposes of the business to which he was agent, himself. Upon the affidavits it appeared that Peter and for his own private purposes, the trustees were Blackburn also carried on a separate business, and held liable, as indorsers, and Lord Denman, C. J., in that after Isaac Blackburn had drawn and indorsed delivering the judgment of the court, said: “Prima the bills Peter Blackburn indorsed them also with his facie, therefore, the signature Samuel Maine was their own name for the purpose of getting them discounted. signature, and they would be bound by it. But it is The Lord Chancellor stated that it was impossible for said that Maine carried on a separate business of his him upon the affidavits to decide between the parties, own, and that the plaintiff was bound to show that the and that this case must be sent to a court of law for its indorsements in question were on account of the busideliberation, and he directed an issue whether the two ness of the trustees, and not on account of his separate Blackburns were jointly liable upon all or any of the business. Now it appears that the bills were discounted bills. In the course of his judgment, however, he with persons who were in the habit of discounting for said: “If the money is advanced to A and B, and the the former firm who assigned their effects to the delender takes a bill from one of them only, he cannot fendants as trustees, and moreover, that the bills in maintain an action upon the bill against the two. question were not discounted till after Maine had Now it A and B are partners and also separate traders, ceased to carry on his separate business. Under these and A draws a bill and indorses it in his own name, circumstances we think that the onus of showing that and B also indorses it, and they becomie bankrupts, the indorsements were made on account of the separate what is there to prevent a holder of a bill from proving business, and not on that of the trustees, which was the against the separate estate of each of them ? And un- general and ostensible business, lay on the defendants. less you can show that when A drew the bill he drew | Several cases were cited which it is not necessary miit not as A, but as A and B, there can be no legal conle nutely to examine; it is sufficient to say that they are tract upon the bill as against the two." In these re- | not inconsistent with this view of the present case. marks of Lord Eldon, the introduction of the element | We are therefore of opinion that the defendants were of separate trading by A and B, and of the further bound by the indorsement of Maine, and that the element of both A and B putting their names to the plaintiff on this ground of objection would be entitled to our judgment”: (2 Q. B. at p. 418.) This decision | vidual partner, and he laid it down that tbe presumpis in no way shaken by that in Nicholson v. Ricketts, 2 tion was that it was made on the faith and credit of E. & E. 497, where two firms with distinct trade names the business, saying, “If a retail merchant gets a note agreed to carry on joint exchange operations under such discounted, is it not to be presumed to be in tho regucircumstances as to inake them partners in them; and lar prosecution of his business?" and adding, “Tho it was held that the signature to bills of one of the two difficulty arises from tho name of the individual and firms drawn in course of the exchange operations did the name of the firm being the same. That is the not make both firms liable as drawers; for the decision presumption, liable, however, to be rebutted, if the proceeded simply on the ground that by the arrange jury believe from tho evidence that was not the state ments between the two firms the names of the two of the fact.” A motion to the Supreme Court of firms were to be used separately, the paper to be dealt Pennsylvania, founded, amongst other things, upon in being drawn by one firm and accepted by the other, the alleged error of this direction, was refused. This and as Cockburn, C. J., said, at p. 523, it did not ap case was decided in 18:27. The case before Story, J., pear that the drawing firm had any authority, express was in 18:28. In 1815 tho question under consideration or implied, to bind the defendant by drawing bills. again arose in the Supreme Court of New York in tho The case of Re Adansonia Fibre Co., Miles' Claim, L. case of Bank of Rochester v. Monteith, 1 Den. 402, Rep., 9 Ch. 635, was substantially the same as that of where the name of Wm. Monteith, an agent of tho Nicholson v. Ricketts, and was decided upon the same firm, had been used as the firm name, and the court considerations. In each of these cases the court came said: “If Wm. Monteith had also been in business on to the conclusion, as a matter of fact upou all the cir his own account, then the acceptance by writing his cumstances before it, that the name on the bill was name on the face of the bills would have been an not intended to be, and was not, the name of the part equivocal act, and it would have been necessary to nership sought to be made liable upon it. Upon this show that he accepted on account of the partuership, view of the English authorities, they appear to sup and not in his own private business," and after citing port the view that where a name is common to a firm among tho authorities for this proposition the United and to an individual member of such firm, and the Slates Bank v. Binney, thus indicating that they must individual member carries on no business separate have thought that in this case thero was a separate from that of the firm, there is a presumption that a business carried on by tho individual whose name was bill of exchange drawn, accepted, or indorsed in the used, the court added: “But there was no evidenco common name is a bill drawn, accepted, or indorsed | that Wm. Monteith was engaged in any other business for the partnership, and for which the partnership is than the affairs of this partnership. We must then liable, and that it lies upon the defendants in an action regard those bills as drawn aud accepted by the houso against the partners upon such bill to get rid of the doing business in the name of Wm. Monteith.” In prima facie case made against them. But as the court 1853 was decided, also in tho Supreme Court of New below relies much upon the American authorities as York, the case of Oliphant v. Matheus, which is the uniformly negativing this view, and those authorities second of the two cases cited in the judgment of the have been much discussed in the argument before this court below. That case, when critically examined, court, we think it desirable to refer to them. The will be found not to be inconsistent with the cases of authorities specially cited in the judgment of the Mifflin v. Smith and Bank of Rochester v. Monteith. It court below are Parsons on Bills of Exchange, 531; | is true that the court laid down in general terms that Story on Partnership, 106, 142; the decision in the where a partnership is carried on in the name of an Supreme Court of New York of Oliphant v. Mathews, individual, and a suit is brought against the partners 16 Barb. 608 and the direction of Story, J., to the upon a note or other obligation sigued by such indijury in United States Bank v. Binney, 5 Mason), 176, vidual, tho legal presumption is that it is the note of 183. The passage referred to in Parsons does not bear tho individual and not of the partners. The court out the proposition for which it is cited. He says: immediately qualified the generality of the proposition “The burden of proof is upon the plaintiff to show laid down by saying that the presumption might be that the paper was given in the business, and for the repelled and overcome in other words the onus of use of the firm, for it will be intended prima facie to proof might be shifted) by proof as to the business in have been given in the separate business of the partner which such person was engaged; and while citing signing it, and to be binding on him alone, at least if | Millin y. Smith as explaining what proof would be he is also engaged in business on his own separate ac sufficient, the court pointed out that in the case becount.” The views of Story, J., are best taken from fore them it was proved that the individual did busihis ruling in United States Bank v. Binney, where, 1 ness and borrowed money on his own account, as well in directing the jury, ho used this language: “In thoas on account of the partnership; and it was not present case the signature of John Winship may be on shown that one was not as constant aud regular as the his own individual account, as his personal contract, other. This case, therefore, is in no way inconsistent or it may be on account of the partnership. Upon the with the previous case decided in the same court of face of the paper it stands indifferent. The burden of Bank of Rochester v. Monteith, and none of the other proof is upon the plaintiffs to establish that it is a con cases cited in the argument before us carries the doctract of the firm, and ought to bind them." But there trine of presumption in favor of the defendant further. was evidence to go to tho jury in that case that the It appears to us, therefore, that the American authoripartnership was limited to a soap and candle business, ties are in accord with the English upon the point and that the accommodation notes which were sued on under consideration, and that both fail to support tho were given in respect of consiguments of meat, which view taken by the court below, and are in favor of tho might have constituted, and it was contended, did second contention urged in this case on behalf of tho constitute the separate business of Winship. It is plaintiffs. Applying then the presumption for which doubtful therefore whether Story, J., intended his the plaintiffs contend to the circumstances of tho proposition to extend to a case where no separate busi- present case, the matter stands thus: The only business could even be suggested as existing. On the other | ness carried on in the year 1878 in the name of and by hand, in the case of Mifflin v. Smith, 17 Serg. & Rawle, | Wm. Beatson was the business of the partnership, and 165, Rogers, J., dealt with tho doctrine of presumption | both the bills sued upon have the appearance of trade in a case where the question was whether the loan of bills. Prima facie, then, the bills were bills indorsed money obtained by a member of a partnership carried and accepted respectively in the name and on account on in his individual name was obtained on the faith of of the partnership, and if that prima facie case were the partnership business, or on the credit of the indi- I not displaced, Mycock would be liable upon them to the plaintiffs as bona fide holders for value without ..menced, the accommodation transactions of Beatson notice, even though they were so iudorsed and accepted were treated as not forming any part of the transacfor the private purposes of Beatson, and in fraud oftions of his business, and were excluded from the his partner. The nature of the partnership business ledger. In the third place, the evidence establishes was such as to give Beatson in respect to persons deal that the accommodation transactions of Beatson after ing with him in business an implied authority to bind the commencement of the partnership diminished his partnership by bills of exchange, and his partner, rather than added any thing, even temporarily, to the. although a secret one, must be held responsible upon | capital of the firm; and lastly, Beatson himself, called any bill signed by Beatson in the name of the firm in as a witness by the plaintiffs themselves, disproved, as favor of a holder whose title cannot be impeached, it appears to us, the fact that in siguing the bills in however much Beatsou in siguing that name may have question he signed for the partnership.
He stated exceeded the authority and broken the trust reposed that he thought he was not inaking Mycock liable for in him by the agreement of partnership. As was said any of the accommodation bills, whether renewals or by the court in giving judgment in the case of Wintle otherwise, and that he considered them private transv. Crowther, 1 C. & J. 316: “Where a partnership name actions, and did not enter them in the partnership is pledged, the partnership, of whomsoever it may books. Can any other inference be reasonably drawn consist, and whether the partners are named or not, from such evidence than that Beatson, in signing the and whether they are known or secret partners, will bills, intended to sign and did sign them for himself ? be bound, unless the title of the person who seeks to We think that no other iuference ought to be drawn, charge them can be impeached," and the authorities and that the jury, in finding that " William Beatson" generally, both English and American, are uniform in upon each of the bills was intended to denote the support of this view. There is no difference in this firm, gave a verdict against the evidence, and ono respect between the dormant and the ostensible part which ought not to stand. The reason given in ner, and when once it is established that a name com support of their finding by the jury that one mon to a firm and an individual member of it has been bill was addressed to the drawer or drawees as of put to a bill as the name of the firm, there is no differ the Chemical Works, Rotherham, and that the other ence between the liability of partners carrying on was so connected with it as to stand or fall with it, business in such a name and the liability of partners | might have been a good reason in a case where the evicarrying on business in a name which bears in itself | dence was in other respects doubtful, but it is in the the stamp and evidence of a partnership. It may present case met to some extent by the very form of perhaps be argued that in the latter case the bona fide the bill itself, which, while addressed to the drawee or holder without notice is induced by the name itself to drawees at the partnership works, contains in the term trust a firm, and is therefore entitled to have all the | “Mr." prefixed to the name “ Wm. Beatson" an indiresponsibility of all the members of that firm, while cation that the individual and not the firm was inan individual name would suggest no responsibility tended, and is entirely outweighed by the clear eviother than that of the individual whose name it is; dence to which we have referred, and we understand but when it is remembered that firm names are often that the learned judge who tried the case was himself used by individual traders, while individual names are dissatisfied with the finding. The additional finding often used by firms, the argument practically comes to that the bank took the bills as the bills of the chemical nothing, and a common principle applicable to both works is clearly irrelevaut if the former finding is cases remains alone consistent with mercantile cxpedi wrong, for if the bills were in fact signed not in the ency and general law. But assuming that there is no name of the partnership, but of Wm. Beatson indidifference, as matter of law, between the two cases, vidually and for his private purposes, the fact that the there is as matter of evidence a very real and very plaintiffs were unaware that Mycock was a partner practical difference. A name in itself indicating a with Beatson, and never advanced any money on the firm does not, except in rare instances, of which the faith of his credit, but did at the same time give case of Stephens v. Reynolds, 5 H. & N. 513, is an ex- credit to the name of Beatson as being the name of ample, leave open any doubt as to the meaning of a the owner of the chemical works, can give them no signature in such name; but a name which in itself more right against Mycock than if he had been a mortindicates an individual is, notwithstanding the effect gagee of the works instead of a partner in them. The of any legal presumption, ambiguous, and there are law in a case of bankruptcy asserts a title in the genelikely to be few, if any, cases where the decision of ral body of creditors of a bankrupt to property of the jury or of a court will be rested upon the presump which he may have been at the time of his bankruptcy tion alone. The present case is no exception to the in apparent possession with the consent of the true rule, and the presumption in favor of the plaintiffs owner, and upon the faith of which he gained a false arising from the fact that Beatson carried on no busi credit. But in actions founded upon purely personal ness separate from that of the partnership really sinks contracts, the law does not use the mere moral right into comparative insignificance by the side of the addi which a creditor may attempt to assert against a pertional facts which are proved in the case. Upon those son in consequence of his having intrusted to another facts we have to decide, as the courts in Nicholson v. property in the belief of his ownership, of which the Ricketts and Re Adansonia Fibre Co., Miles' Claim, creditor may have contracted with him. In other were called upon to decide, whether the signature to words, in a case like the present there is no conduct the bills upon which the dispute arises was intended on the part of the dormant partner which makes it to denote and did denoto the partnership of which the | inequitable on his part to deny, or estops him from defeudant was a member. In the first place it is clear denying, his liability upon a contract to which he was that the bills were bills, which, if signed by Beatson in fact no party, from which he has derived no benefit, for the partnership, were so signed by him without the and in respect of which he was not held out to the perauthority and in fraud of his partner, and in respect of son suing him as liable. As regards this point, nothing which no action would have lain against Mycock, if turns on the subject matter of the action being negothey had remained in the hands of Josiah Carr & Son, tiable instruments. Beatson, by giving the use of his who took them with notice. In the second place, it is, name to a partnership of which he was a member, and we think, equally clear that as between Beatson and the only ostensible member, did not preclude himself Mycock the bills were not treated as having been from making contracts binding himself alone, and in sigued by Beatson on the partnership account. They any contracts de fucto made by him, whether by parol were not entered in any partnership book, and indeed, or in writing, the question, the answer to which would even before the partnership as well as after it com- I determine Mycock's liability or freedom from liability,