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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 P. 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
East, 264. See Duncan v. Lowndes,
3 Camp. N P. C. 478.

Fox v. Hanbury, Cowp. 449.
Harvey v. Crickett, B. R. Sittings

at Serjeant's Iun 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.

If 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

Emily v. Lye, 15 East, 7.

Denton v. Rodie, 3 Camp. N. P. C.

493.

t Morley v. Strombom & al., 3 Bos. & Pul. 254.

(1) Subsequently admitted partners, though under an agree ment 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 obe

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 refused 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 Mawman†, a bookselier, 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 ou 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. Arcbbowle, 2 Taunt. 324.

Mawman v. Gillett, cited by Sir J. Mansfield, C. J., 2 Taunt. 325,
Guidon v. Robson, 2 Camp. N. P. C. 302.

of Lord Mansfield, and it was then laid down that defendants should be permitted to take advantage of this objection by a plea in abatement only. The rule laid down by Lord Mansfield has been acted upon ever since, though the Court of Common Pleas have lately manifested a strong disposition to revert back to the ancient rule. The liability of the parties depends upon their being partners at the time when the contract is made', and a dormant partner cannot set up the plaintiff's ignorance of his being a partner, to obviate such liabi lity. But in a case where there was a stipulation between three persons who appeared to the world as partners", that one of them should not participate in the profit and loss, and should not be liable as a partner, it was holden, that he was not liable as such to persons who had notice of this stipulation.

IV. Evidence.

ACTS subsequent to the time of delivering goods on a contract, may be admitted as evidence to shew that the goods. were delivered on a partnership account, if it were doubtful at the time of the contract; but if it clearly appear that no partnership existed at the time of the contract, no subsequent act by any person, who may afterwards become a partner (not even an acknowledgment that he is liable, or his accepting a bill of exchange drawn on them as partners for the very goods), will make him liable in an action for goods sold and delivered, though he will be liable in an action on the bill of exchange.

It is incumbent on persons dissolving a partnership, to send notice of such dissolution to all the persons with whom they have had dealings in partnership. The Gazette of itself is not sufficient notice of such dissolution. It seems, however, that in respect of persons who had not any previous dealings with the partnership, an advertisement in the Gazette would be sufficient notice of the dissolution, so as to prevent such persons from recovering against the parties who constituted the firm originally, upon a security given by one of the parties in the name of the firm, after such notice

t See Ld. Kenyon's opinion in Saville x Saville v. Robertson, 4 T. R. 720. v. Robertson, 4 T. R. 725.

Alderson v. Pope, 1 Camp. N. P. C.

404. n.

y Graham v. Hope, Peake's N. P. C. 154. See also Gorham v. Thompson, Peake's N. P. C. 42.

of dissolution. Bankers ought, regularly, to give notice of a change in the firm, by a circular letter; but such change may also be notified by an alteration of the name in the printed cheque; and persons who have used the new cheques cannot take advantage of the want of a more express notice.

Assumpsit for goods sold and delivered. The plaintiff's witness swore, that the defendant and I. S. were partners in trade, and that these goods were sold to them in partnership. The defendant called I. S. to prove that the goods were sold to him, and that the defendant had no concern in the purchase of them, otherwise than as his servant. Lord Kenyon, C. J.," He is not a witness to prove this, for he comes to defeat the action of the plaintiff, against a man who is proved to be his partner; and by discharging the present defendant he benefits himself, as he will be liable to pay a share of the costs to be recovered by the plaintiff' in this cause."

In an action against one partner, if the plaintiff gives in a particular of his demand, and the defendant pleads partnership in abatement, if the defendant proves any of the items to have been furnished on the partnership account, he will be entitled to a verdict, although the plaintiff should be prepared to prove that some of the items were furnished on the credit of the defendant only.

In an action against the drawers of a bill of exchange, purporting to be drawn by a firm upon one of the partners constituting the firm, if it be proved that the bill was accepted by such drawee, this will be sufficient evidence of the bill having been regularly drawn; and further, it is not necessary, in such case, to prove that the drawers received express notice of the dishonour of the bill, because this must necessarily have been known to one of them, and the knowledge of one is the knowledge of all (3).

To establish a partnership between two defendants*, a ver

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(3) See Alderson v. Pope, 1 Camp: N. P. C. 404. n. where it was holden by Ld. Ellenborough, C. J., that notice to one member of a firm, was notice to the whole partnership.

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